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DADDY WARBUCKS
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Discussion Starter · #1 ·
Mother of suicide victim sues Wal-Mart over gun sale
Houston Chronicle ^ | 12/20/2004

DALLAS -- There were serious signs of trouble near the end of Shayla Stewart's short life.

Stewart, 24, was diagnosed as bipolar and schizophrenic. She had assaulted police officers. She had been arrested for attacking a fellow customer at a Denton Wal-Mart where she had a prescription to anti-psychotic medication.

Given all those signs, her parents say, another Wal-Mart just seven miles away should have never sold her the shotgun Stewart used to kill herself in 2003.

Her mother, Lavern Bracy, filed a $25 million wrongful death lawsuit last week in a Denton County district court against the Bentonville, Ark.-based retailing giant, saying clerks should have known about her daughter's illness or done more to find out.

Wal-Mart spokeswoman Christi Gallagher declined to comment on the suit, which has reignited a debate over mental health record confidentiality and the efficiency of databases used for background checks when people buy guns.

"We know that if they had ... so much as said 'Why do you want this?' we would not be having this conversation because Shayla would have had a meltdown," said her stepfather, Garrett Bracy.

Federal law prohibits stores from selling guns to people who, like Stewart, have been involuntarily committed to mental institutions or declared by a judge to be mentally ill and a danger to herself or others or incapable of handling her own affairs.

A federal background check is conducted on all gun buyers to weed out those who are prohibited. The form that must be filled out to buy a gun asks about mental health. Stewart, who had been both committed to an institution and declared dangerously mentally ill by a judge, lied on that form, according to her mother's attorney's office.

The background check system has other problems as well. For example, the system approved Stewart's purchase because her name didn't show up in the FBI database. That happened because the database contains no mental health records from Texas and 37 other states.

Texas doesn't submit mental health records because state law deems them confidential, said Paul Mascot, attorney with the Texas Department of State Health Services. Other states have not computerized their record-keeping systems or do not store them in a central location.

Michael Faenza, the president and chief executive of the National Mental Health Association, applauds Texas' stance. He said it would not be fair to violate patients' privacy when there's no data to support claims that mentally ill people are more violent than others.

"The tragedies that families face when people are killed is terrible. And frankly I wish handguns were not so available in this country," he said. "But it's not right, in our minds, to make social policy based on just a few cases."

Garrett Bracy couldn't disagree more.

He and his wife watched his stepdaughter's six-year decline from straight-A high school student to violent and unpredictable stranger.

She was hospitalized five times, twice under court orders. Her longest hospitalization, lasting a month, came in 2002 after her family persuaded a probate judge to declare her dangerously mentally ill because she refused to leave her room or take her medication.

Her parents said they wished Wal-Mart had been more diligent by checking security files and prescription records. But those records are confidential under the Health Insurance Portability and Accountability Act of 1996, so stores cannot use them when deciding whether to sell a gun.

The suggestion that Wal-Mart should have checked prescription records infuriates Erich Pratt, a spokesman for the Virginia-based group Gun Owners of America. He said stores should not be expected to make judgments about customers based on prescriptions.

"Does that mean mental illness prevents everyone on Prozac from owning a gun? Or women with PMS?" he said.

U.S. Rep. Carolyn McCarthy, D-N.Y., wants to strengthen the federal background check system by encouraging states to share mental health records. She has introduced legislation that would give states grants to automate and turn over the information.

She drafted the bill after a priest and a parishioner were shot to death by a schizophrenic man in a New York church in 2002. He too shouldn't have been allowed to buy a gun.

"When you see these deaths that could have been prevented it's a shame," McCarthy said.

As Lavern and Garrett Bracy prepare for another Christmas without their daughter, they're urging lawmakers to embrace McCarthy's bill and dealers to conduct their own background checks.

"Lavern went to the store the other day to buy over-the-counter headache sinus medication and they limited the amount of sinus medication she could buy at one time," Garrett Bracy said, his voice trembling with emotion. "But Shayla can walk into a store and buy a gun and they could care less. That's got to change."
 

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deactive ~ and in trouble
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Just one simple mans opinion but wouldn't you think court ordered hospitalization would be a benchmark for mental illness that could/should be reported? You wouldn't have to go into details, just that it happened and don't sell this person a gun....
 

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DADDY WARBUCKS
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Discussion Starter · #3 ·
Depends on how much faith you have in the government making mental health judgements for disqualifying gun ownership.

That don't have much credibility with me when I see what they did with domestic violence and gun ownership.
 

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Custer said:
Depends on how much faith you have in the government making mental health judgements for disqualifying gun ownership...
I'm aprehensive of this as well. The Soviet Union and, as I think it was aviator who recently pointed out, Cuba, have long histories of using psychiatry as a means of establishing social control. In both, "antisocial behavior" such as advocating for democracy could result in involuntary psychiatric hospitalization. The parallels between that and the more maniacal conservatives (e.g. Michael Savage) who would label liberalism a mental disorder are truly frightening.
 

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Mystic Knight of the Sea
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That is nothing more than another instance of greedy relatives trying to get rich off of someone in their family that committed suicide. Deep pockets is right.
 

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Hoisted on thier own petard.
"We must make health records confidential"
Thus, the HIPAA act, which makes them confidential.
"We want them to part of the background check!"
Uh.....can't have it both ways.
Sad story, but the logic is fuzzy. Bipolars are tough to treat, they frequently won't take their meds and don't think there is anything wrong with them.
Also, this story doesn't say how long between when she bought it and when she did the deed. Bipolars have huge mood swings, when they are up they are really up, and when down it's in the cellar.
This person should have been in the database. Sorry, but yeah, court ordered confinement for mental illness? Yep, needs to be in there.
EDIT
Oh, and "there's no data to support claims that mentally ill people are more violent than others." What???? What???? Ah......that's just stupid. The mentally ill aren't violent? Oh really. You don't say. Maybe not all of them, but I disagree with that statement.
 

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cammobunker, under HIPAA psychiatric records are open for law-enforcement and national security purposes. "Confidential" doesn't mean "secret", it only means that the info is released only in a manner prescribed by law. Although under HIPAA the actual therapy notes need not be released.

About the only place that remains truly "confidential" in the way most folks think of that word is with a Catholic priest in the confessional - and in many states that's not even the case. Especially after legal reforms made subsequent to the sexual abuse scandals among the priesthood.

Right you are, though, about the difficulties in treating folks suffering from bipolar disorder. While they're in the manic phase, when they're most likely to be a danger to others, they're anything but suffering - they're having a helluva time, sexual superman, on top of the world, never felt better and you'll never feel as good yourself.

And right you are about violence and mental illness. Last I checked, mental illness was much more closely related to being a victim than a perpetrator of violent crime.

Pogo, I dunno that this is necessarily driven entirely by greed. Suicide leaves family members feeling horribly guilty, and it's not uncommon (as ever therapist who's ever had a patient die by suicide knows) to try to lay the blame on a third party.
 

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Mystic Knight of the Sea
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Dzerzhinsky said:
Pogo, I dunno that this is necessarily driven entirely by greed. Suicide leaves family members feeling horribly guilty, and it's not uncommon (as ever therapist who's ever had a patient die by suicide knows) to try to lay the blame on a third party.

Sounds like that family has $25 million worth of grief. :thankyou:
 

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Shayla & Lavern...............hmmmmmmmm.
 

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Dzerzhinsky said:
cammobunker, under HIPAA psychiatric records are open for law-enforcement and national security purposes. "Confidential" doesn't mean "secret", it only means that the info is released only in a manner prescribed by law.
QUOTE]
True. Walmart employees are not LEO's and do not have National Security in mind.
My point was, Wal-mart was following the law (HIPAA) by not viewing her prescription records. It also folowed the law by having her fill out the form, and they followed the law by doing the background check.
 

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Mystic Knight of the Sea
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DorGunR said:
Shayla & Lavern...............hmmmmmmmm.
Yep, Lavern is quite upset. Poor thang. She's not in it for the money, but is suing Walmart for $25 million out of respect for Shayla. :bawling:
 

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cammobunker said:
...My point was, Wal-mart was following the law (HIPAA) by not viewing her prescription records. It also folowed the law by having her fill out the form, and they followed the law by doing the background check.
Right you are. The Sporting Goods Department has no legitimate reason to be reviewing prescription records. And being prescribed a psychotropic medication does not indicate that someone is prohibited from firearms purchases, anyway. If the Prescription Department had released info to the Sporting Goods Department, I suppose the family would be suing WalMart for that.

Some people are just unclear on the concept that sometimes bad things happen and it's not necessarily anyone's fault.
 

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Pogo said:
Sounds like that family has $25 million worth of grief. :thankyou:
Conversely, you would be suprised just how much grief $25 million can assuage.
 

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Mystic Knight of the Sea
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Dzerzhinsky said:
Conversely, you would be suprised just how much grief $25 million can assuage.
I'd sure like to give a it try finding out. :D
 

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Pogo said:
I'd sure like to give a it try finding out. :D
Maybe we can work something out here. How are things between you and the wife these days?
 

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Mystic Knight of the Sea
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Dzerzhinsky said:
Maybe we can work something out here. How are things between you and the wife these days?

Not a good idea. My wife picks up after me and cooks most of my meals. I've got a stray dog that I'm really, really emotionally attached to. Are you worth $25 mil (or have that much insurance)?
 

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Pogo said:
...Are you worth $25 mil?
Alas, my family is likely to send thank you cards to anyone responsible for my death.
 

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Dzerzhinsky said:
Alas, my family is likely to send thank you cards to anyone responsible for my death.
Then who would we pick on and yell at?
 

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Everyone assumes that people suffering form mental illness are more likely to commit crimes with firearms. Frankly, I doubt statistics would support that proposition.

People suffering from mental illnesses are common in today's society, as evidenced by the number of Kerry supporters in the past election... What is a mental illness, anyway? Who defines it? Will citizens be required to undergo frontal lobotomies in order to buy a handgun? Will people who suffer depression from the loss of a loved one be banned from exercising their 2nd Amendment rights? Canada's over-reaching gun control law, C-68, was based on the use of firearms in Canadian suicides, which exceeded firearm related deaths attributed to accident or crime by an 8 to 1 ratio.

Back to the lawsuit. It is based on a legal theory of imputed negligence. WalMart had actual knowledge of the girl's mental illness, as well as a violent episode in a WalMart store seven days earlier in which she assaulted a customer and police officers. One legal question will be whether confidential knowledge can be imputed to other WalMart stores, in my humble opinion. Should the courts determine imputed negligence, then there will be a jury issue as to whether WalMart was negligent when it sold the woman a firearm, and whether that negligence proximately caused her death. It will de an uphill fight for the Plaintiff.
 

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DADDY WARBUCKS
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Discussion Starter · #20 ·
The law is so out of touch with reality that I have seen cases of "imputed knowledge" being established by books or magazines that a company had laying around in what was called a "library".
These were merely shelves in a storage room where various people put old books and magazines they got at work rather than throw them out.

The content of these books and magzines would then be used to show that the company had knowledge that the product made or action taken was potentially harmful.
 
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