Questions linger about intersection of guns, mental health policy in wake of NH Hospital shooting
The gunman who shot and killed a security guard at New Hampshire’s secure psychiatric hospital two weeks ago had previously been a patient there, having been involuntarily committed to New Hampshire Hospital on multiple occasions in 2016 and 2017.
That history, in addition to the fact that the gunman — 33-year-old John Madore — had also faced criminal charges following an earlier armed standoff at his home, has raised questions about whether a patchwork system of gun regulations may have allowed him to obtain firearms.
Right now, there are no clear answers to those questions. But here’s what we know so far.
Madore previously had guns, but those were seized
Officials say Madore used a 9mm gun to kill security guard Bradley Haas on Nov. 17. He also had an AR-style rifle in the U-Haul he drove to the hospital that day. But the New Hampshire Attorney General has not yet said how Madore obtained those guns.
We also know those are not the same guns Madore had in 2016 when he barricaded himself in a Strafford house following a domestic disturbance involving his mother and sister. Madore ultimately gave himself up before a SWAT team arrived, without any injuries. The police seized those firearms following a bail order restricting his access to firearms, and they are still in the possession of the Strafford Police Department.
Arrest records from the 2016 case show that Madore was suffering from severe mental illness at that time and was involuntarily committed to psychiatric hospitals on multiple occasions in 2016 and 2017, including New Hampshire Hospital.
The criminal charges in the case where he barricaded himself were eventually dropped. It isn’t clear if that was because he was found incompetent to stand trial, though that’s what the court files seem to suggest. Some of the file remains sealed, however.
Does being committed to a psychiatric hospital in New Hampshire restrict a person’s ability to own a gun?
It turns out that’s a very hard question to answer.
Let’s start with federal law In 1968, the Gun Control Act made it illegal for anyone adjudicated mentally ill or committed to a mental institution to own or buy a gun.
While that may sound cut and dried, the issue is enforcement: No federal agency appears to aggressively enforce this law. Instead, what typically happens is a person is charged with another crime, and then federal prosecutors may add on the illegal gun charge. But this is often after the fact — after another criminal act.
In the absence of consistent federal enforcement, what are states doing?
About 40 states do have explicit laws that lay out what should happen regarding gun possession or background checks for a person who is found to be a danger to themselves or to others because of a serious mental illness.
Much of this state-level action came in the wake of the 2007 Virginia Tech shooting, when the federal government began giving states money to set up the infrastructure so they could share information with the FBI’s background check system, known as NICS. This allowed states to put people who have been found unable to stand trial or not guilty by reason of insanity or involuntarily committed into this federal database, so that when gun shops do background checks, those individuals are flagged.
But it’s far from consistent from state to state.
“We don't have a clear infrastructure in each and every state that says, ‘this is how we're going to go about enforcing and checking to make sure that people who are now on this list no longer have their guns,’ ” said Deirdre Bowen, an attorney and researcher at the Seattle University’s School of Law who’s written about this issue.
The majority of states do require notification to the federal NICS database following an involuntary commitment, and some also offer those people a chance to petition to get their guns back.
Some states have laws that allow authorities to actually remove guns from people when they’ve been involuntarily committed to a psychiatric facility or when there are concerns — whether from family members or law enforcement — about them being a danger.
And then there's New Hampshire.
New Hampshire is one of just a few states that doesn’t have a law requiring notification to the FBI when someone is adjudicated mentally ill. But the background here is complicated.
A state law was actually passed in 2016, with Republican backing — a single sentence tucked into an unrelated Medicaid expansion bill — that sought to address this issue.
It says that no one should be reported to NICS when they’ve been involuntarily committed, but it also lays out a lone exception. It states that the only people who can be reported must have had a hearing on the matter and been represented by an attorney.
Here is the law’s full text:
“No person, organization, department, or agency shall submit the name of any person to the National Instant Criminal Background Check System (NICS) on the basis that the person has been adjudicated a ‘mental defective’ or has been committed to a mental institution, except pursuant to a court order issued following a hearing in which the person participated and was represented by an attorney.”
From the start, legal officials in the state seemed to have a hard time agreeing on what this actually meant. New Hampshire’s Judicial Branch in 2016, just after the law was passed, essentially argued that the statute wasn’t clear, and it was impossible to determine the Legislature’s intent.
Bottom line: It hasn’t been enforced.
So is nobody in New Hampshire getting reported to the federal database if they’ve been involuntarily committed?
That’s also murky.
The law remains on the books, and the courts are apparently not reporting all people who are involuntarily committed to the NICS system.
And yet, there are today, according to public data, more than 650 people from New Hampshire who are in the NICS system because of serious mental health concerns.
But when we asked the New Hampshire Department of Justice and the Department of Safety, they weren’t able to provide specifics on how this process is actually working — who actually flagged and reported these people.
What that means is that it’s hard to say whether Madore, the gunman at New Hampshire Hospital, would have been in the federal background database at the time of the shooting, even given his history of severe mental illness, self-harm and violence.
One thing we can say: Had he had been a resident of most other states other than New Hampshire, then he most likely would have been. He also may be one of the people currently flagged in NICS by the state: Right now, that’s not clear.
But it’s also important to note that being flagged in NICS does not prevent someone from obtaining a gun in New Hampshire. Private gun sales here don’t require a background check, and neither would a friend or relative giving someone a gun. And of course, it’s possible to obtain guns illegally.
Lindsay Nichols, policy director with Giffords, the anti-gun violence group founded by former Congresswoman Gabby Giffords, says after these types of shootings, it can be frustrating – even for gun law experts – to know what went wrong.
“Because there are multiple overlapping gaps and you don't really know which hole this person fell through in this particular state,” she said. “Is it a reporting failure? Is it the fact that he just bought it from a private, unlicensed seller who's not required to conduct background checks? Has the law been interpreted in a narrow way by the state, and therefore they think they weren't supposed to report him? So it's never entirely clear.”
At some point, authorities will likely say where Madore obtained the weapon used to kill Bradley Haas. But that may only open up more questions.