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DAVID GREENE, HOST:
And I'm David Greene.
Most of the records relating to last month's mass shooting in a Colorado theater will remain sealed for now. This week a judge denied a motion to unseal documents in the case of James Holmes. Twelve people were killed and 58 wounded at last month's midnight opening of the newest Batman movie, where Holmes is alleged to have opened fire.
MONTAGNE: Both the prosecution and defense had argued against releasing the documents to media organizations, including NPR, that had requested them. Lawyers for Holmes have referred to their client as mentally ill.
GREENE: Federal law bars certain people with mental illness from buying or owning guns, but this case, and others, including a recent incident in Maine, underscore how difficult it is to enforce this. NPR's Tovia Smith reports.
TOVIA SMITH, BYLINE: Timothy Courtois' family had been worried about him for weeks. They repeatedly told police in Biddeford, Maine that the 49-year-old was off his meds for bipolar disorder, and police were also told he had guns. But still, because he wasn't doing anything that rose to the legal definition of imminent threat, police said their hands were tied.
DEPUTY CHIEF JOANNE FISK: We're very limited - very, very limited to what we can do.
SMITH: That's Biddeford Deputy Chief JoAnne Fisk.
FISK: Just because somebody has a hunch, we will investigate it. But everybody has rights, and you have the right to bear arms in this country.
SMITH: It was both frustrating and a relief to police and the family when Courtois was finally arrested for speeding down the highway to what could have been a tragedy.
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UNIDENTIFIED MAN: Making news tonight - it involves the potential copycat to the Colorado movie massacre. Here in New England...
UNIDENTIFIED WOMAN #1: Police say they found an AK-47, four handguns and several boxes of ammunition in his car.
UNIDENTIFIED WOMAN #2: Courtois claimed he was headed to New Hampshire to shoot a former employer.
SMITH: Federal law bars gun sales to the mentally ill only if they've ever been deemed by a judge to be mentally incompetent or involuntarily committed. That may have been the case with Courtois, but states' reporting of such things to the federal database is spotty, and very often it doesn't show up when a gun seller does a background check.
DENNIS HENIGAN: It's just shameful to allow people who the law has already said are too dangerous to have guns to still be able to easily access those guns at licensed dealers.
SMITH: Dennis Henigan, president of the Brady Campaign to Prevent Gun Violence, says Maine has reported just a couple dozen people out of what may be thousands who should be disqualified. And Pennsylvania, for example, just one.
HENIGAN: Our estimate is that we're probably still missing at least a million of these records, and this is ridiculous.
SMITH: But even if reporting were perfect, experts question how much gun violence would be prevented. Federal law doesn't require background checks when guns are sold privately, and even at licensed dealers the law may not be disqualifying the most dangerous of the mentally ill.
JEFF SWANSON: Do we really know that we're finding the right people?
SMITH: Jeff Swanson is a psychiatric professor at Duke University School of Medicine. He says it might make sense legally to only disqualify those who've been officially deemed by a court to be mentally unfit. That's the due process courts require. But clinically, Swanson says, it's a pretty arbitrary line.
SWANSON: A system that relies on searching for official records may never find those individuals. You know, there are lots of people who have an involuntary commitment history who have virtually zero risk of violence.
SMITH: Take, for example, someone who's involuntarily committed because he's clinically depressed and not eating. Swanson says more relevant risk factors would be a history of violence or substance abuse. But such an in-depth review of every case would be impractical and, experts concede, still not reliable.
JOEL DVOSKIN: Our ability to predict human behavior is not that great. We don't even think that we can be right most of the time.
SMITH: Joel Dvoskin is a forensic and clinical psychologist at the University of Arizona Medical School.
DVOSKIN: I don't pretend that I'm Carnac the Magnificent and that I can hold my hand up to somebody's forehead and tell you what they're going to do in three years. It's a dicey business.
SMITH: With the risk so uncertain, Dvoskin says, it becomes harder to justify revoking someone's rights in the name of public safety.
University of Virginia professor of law and psychiatry Richard Bonnie agrees. At the very least, he says, there should be better systems set up for people who lose their gun rights to apply to get them back. But also, Bonnie says, there needs to be more room for more discretion and ways to take less draconian measures - for example, to temporarily suspend gun rights or seize weapons that someone already has.
RICHARD BONNIE: There are cases that arise of someone who does seem to be losing it, but it does not appear that they meet commitment criteria. And you know, under those circumstances, precautionary interventions are needed to try to interrupt access to weapons.
SMITH: Some states do allow such intermediate interventions, and some also go beyond the federal law, revoking gun rights, for example, of anyone who's ever been in treatment for mental illness. But given the small percent of mentally ill who commit gun violence, Bonnie cautions casting such a wide net could actually hurt more than it helps.
BONNIE: The payoff in terms of preventing violence would be very little. Indeed, you probably would pay a very heavy price in terms of discouraging people from treatment, which in the long run probably will result in more violence, not less.
SMITH: And then there's the slippery slope. Even the deputy police chief in Maine, who was unable to take guns from a mentally unstable man until it was almost too late, concedes no one wants police deciding someone shouldn't have a gun just because he's wearing a purple suit today.
Tovia Smith, NPR News.
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