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St. Louis school shooter failed a background check. Why didn’t police take his gun?

An attendee holds a Springfield Armory SAINT AR-15 style rifle. (Patrick T. Fallon/AFP/Getty Images/TNS)

Police officers were called to the home of Orlando Harris on Oct. 15, nine days before he went on a shooting rampage inside a St. Louis high school. Harris’ mother had asked officers to remove the weapon, an AR-15 rifle, from her home, citing her son’s mental health struggles. Police had been called to the home before.

St. Louis police had also been informed that Harris, 19, recently failed a federal background check when he tried to buy a weapon from a local dealer.

So why didn’t police confiscate the AR-15 before Monday’s attack at Central Visual and Performing Arts and Collegiate School of Medicine and Bioscience, which left two people dead and seven others injured?

They say slight differences in state and federal gun possession laws tied their hands when Harris’ mother asked them to remove the weapon on Oct. 15. They also point to a controversial new law in Missouri that claims state statutes supersede federal law when it comes to gun possession.

“It is our belief that under existing state law SLMPD would have no authority to seize the firearm in question,” police Sgt. Charles Wall said in a statement.

But some experts side with Missouri Gov. Mike Parson, whose spokesperson said the state Legislature granted courts some control over gun possession “when an individual suffers from a mental health condition.”

Federal law declares that if a person has been “involuntarily committed” to a mental institution, they may not buy or possess a gun. Harris’ family has said that he was “committed” before the shooting. When he tried to buy a gun from a licensed dealer in St. Charles on Oct. 8, he failed the federal background check and was stopped from buying the weapon.

Police had also made multiple mental health-related trips to Harris’ home, where he lived with his mother. Records show officers were called to the home five other times in the past two years, including for a “crisis response,” a “violent and/or weapon” call and a suicide attempt.

But Missouri law does not include language that prohibits a person who has been “involuntarily committed” from possessing a gun — it prohibits gun ownership only if the more serious step is taken of declaring a person “incompetent.”

So Harris eventually bought the AR-15 from a private seller, which does not require a background check. After the police visit, the gun was transferred to a third person, known to the family. But it somehow ended up back with Harris, who then kept it in a storage locker.

Federal law normally supersedes state law. But Missouri recently passed a law, now tied up in courts, called the Second Amendment Preservation Act, which claims state law supersedes federal law on issues of gun ownership.

For that reason, police say, they didn’t take Harris’ gun. They say they didn’t have the authority.

Under the Second Amendment Preservation Act, St. Louis police “can only enforce federal laws if there is an existing state law congruent to the federal law being enforced,” Wall said in his statement.

There is no indication from court records that the more serious step had been taken of declaring Harris incompetent and assigning him a legal guardian, which would have made possession of the gun illegal under both state and federal law.

Once someone is committed to a mental institution, they have a hearing before a judge, said Peter Joy, director of the Criminal Justice Clinic at Washington University. The judge then determines if the person is mentally incompetent, incapacitated or disabled.

If Harris’ mother previously had him committed, as she said, that would have been enough for police to take the gun when they went to the home on Oct. 15.

“If a person has been adjudicated in front of a judge and committed to a mental health facility, they cannot purchase guns and they cannot possess them,” said Kevin Jamison, a Kansas City-area attorney who specializes in firearm law. “This kid did seem to have some mental health problems, and his family could certainly have committed him to a mental health facility by bringing action in probate court.”

Also, Jamison said, there’s nothing in the Second Amendment Preservation Act that would have prevented local police from removing a gun from the shooter. It deals exclusively with prohibiting the federal government from enforcing gun laws in Missouri, and the law also faces ongoing legal challenges questioning its legitimacy.

Still, there is enough uncertainty among police to prevent an officer from taking a gun even if there are warning signs and they have the right to, said Republican state Rep. Lane Roberts, the former director of public safety for the state and former Joplin police chief.

Roberts said the new state law might not have legally prevented an officer from taking Harris’ gun, but it has that effect in practice.

“Every law has potential for unintended consequences, and this is one of them,” said Roberts, who “reluctantly” voted for the bill despite concerns about consequences for police officers and departments who enforce federal gun laws. “Police are going to err on the side of caution,” Robert said.

Joy agreed — police caution is inevitable in a state where guns are so deeply embedded in the culture.

“It’s obvious in a tragic situation like this where everybody wishes police would’ve taken the gun, but whether they had enough evidence to take the gun is something else,” Joy said. “Especially in a state like Missouri where the laws are so pro-gun ownership that with gun possession, a lot of law enforcement officers are very cautious.


(c)2022 the St. Louis Post-Dispatch

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