Gun Sales and Mental Health

Mental health laws in the United States are all over the map, and there are certainly gaps in the system. We can expect a flurry of new legislation related to the recent Virginia Tech rampage killing by a student with a history of mental illness. In the past, similar flurries are usually related to isolated incidents of violence by mentally ill individuals using firearms. Of course the media is all over these stories, referring to them as "preventable tragedies," which inevitably leads to a public outcry. Without doubt the Virginia incident will prompt state and federal government to reassess current laws.

The purpose of this article is to provide law enforcement officers and agencies with an overview of the laws state by state. Do not rely solely on the information provided, as laws frequently change and some of the information provided is from the most recent compilations, one of which is five years old. While your duties are generally covered by your department's policies and procedures codes, know that those too are invariably out of date relative to mental health laws.

Table 1 State by State: Mental Health Firearm Laws, Access to Mental Health Database, Background Checks Performed By NICS

Jurisdiction

2005 State Laws/Federal Statute Firearm Prohibitions
Related to Mental Illness

Title of Law

Mental Illness Variable in Law 2005

Access To Mental Health Database 2005

NICS POC Firearm Background Checks

Report at Least Some Mental Health Info to FBI

United States

United States Federal Gun Control Act, 18 U.S.C. § 922 1968 et seq.

Yes

Yes

N/A

N/A

Alabama

Ala Code § 13A-11-50 (2004), Criminal Code, Chapter 11, et seq.

Yes

No

NICS

No

Alaska

Alaska Stat § 11.61.190 (2004), et seq..; 18.65.710 et seq.

No

No

NICS

No

Arizona

Ariz Rev Stat Ann § 13.905 (2004),et seq.; 13-3101, et seq.

Yes

Yes

NICS

Yes

Arkansas

Ark Stat Ann § 5-73-103 (2003), et seq.

Yes

No

NICS

Yes

California

Cal Welf & Inst Code § 8100 (2004), et seq.

Yes

Yes

POC

Yes

Colorado

Col Rev Stat § 12-26.1-101 (2004), 18-12-101, et seq.; 24-33.5-424

No

No

POC

Yes

Connecticut

Conn Gen Stat § 29-27 (2003), et seq.; 53-20 class=GramE>,. et seq.; 53a-211,et seq.; 17a-500, et seq.

Yes

Yes

POC

No

Delaware

Del Code Ann title xi § 1441 (2004), et seq.; title xxii § 904A

Yes

Yes

NICS

No

D.C.

DC Code Ann § 22–4502 (2004), et seq.; 22-4505-4507

Yes

Yes

NICS

No

Florida

Fla Stat § 790.001 (2004), et seq; 493.6115 (2003)

Yes

No

POC

Yes

Georgia

Ga Code Ann § 16-11-123 (2004), et seq.; 16-11-174, et seq.

Yes

Yes

NICS

No

Hawaii

Haw Rev Stat § 134-1, et seq.

Yes

Yes

POC

No

Idaho

Idaho Code § 18-310 (2003); 18-3302 et seq.

Yes

No

NICS

No

Illinois

Ill Rev Stat 430:65 (2004), et seq.; 720:5/24-1, et seq; 725:5/112A-14

Yes

Yes

POC

No

Indiana

Ind Code Ann § 35-47-1-5 (2004) et seq.

Yes

No

NICS

No

Iowa

Iowa Code § 702.7 (2003), et seq.; 724.1, et seq.

Yes

No

Partial

Yes

Kansas

Kansas Stat Ann § 21:4201 (2003), et seq.; 75-7b17 et seq.

Yes

No

NICS

Yes

Kentucky

Ky Rev Stat Ann § 237.110 (2004), et seq.; 527.040, et seq.

Yes

No

NICS

Yes

Louisiana

La Rev Stat Ann §14:95 (2004), et seq.; § 40:1379.1, et seq.

Yes

No

NICS

No

Maine

Me Rev Stat Ann, title 15 § 393 (2003), et seq.; 17A.1052 et seq.

Yes

No

NICS

No

Maryland

Md Pub Safety Code 40:1379.1, et seq.

Yes

Yes

Partial

Yes

Massachusetts

Mass Gen L ch 140 § 129B (2004), et seq.; 269-10

Yes

Partial+

NICS

No

Michigan

Mich Comp Laws Ann § 28.422 (2004) et seq.; 750.222, et seq.

Yes

Yes

Partial

Yes

Minnesota

Minn Stat § 609.66 (2003), et seq.; 609.165, et seq.; 624.71 et seq.

Yes

Yes

NICS

No

Mississippi

Miss Code Ann § 45- 9-101 (2004), 97-37- 1, et seq.

Yes

Yes

NICS

No

Missouri

Mo Rev Stat § 471.090 (2004)

Yes

No

NICS

Yes

Montana

Mont Code Ann § 45-8-321 (2004)

Yes

No

NICS

No

Nebraska

Neb Rev Stat § 28-1201 (1991), et seq.; 69-2401, et seq.

No

Yes

Partial

No

Nevada

Nev Rev Stat § 202.253 (2004); et seq.; 202.360 et seq.

Yes

No

POC

No

New Hampshire

N H Rev Stat Ann § 159:1 (2004), et seq.

No

No

Partial

Yes

New Jersey

NJ Rev Stat § 2C:39- 1 (2004), et seq.; 2C:58–1, et seq.

Yes

Yes

POC

No

New Mexico

NM Stat Ann § 30-7- 2 (2004), et seq.

No

No

NICS

No

New York

NY Law Crim Proc § 265.00 (2004), et seq.; 400.00, et seq.

Yes

Yes

NICS

Yes

North Carolina

NC Gen Stat § 14- 269.7 (2004), et seq.; 14-402 et seq.

Yes

No

Partial

Yes

North Dakota

ND Cent Code § 62.1-01-01 (2004), et seq.

Yes

No

NICS

No

Ohio

Ohio Rev Code Ann§ 2923.11 (2004), et seq.

Yes

No

NICS

Yes

Oklahoma

Okla Stat title 21 § 1271.1 (2004), et seq.

Yes

No

NICS

No

Oregon

Or Rev Stat § 166.170 (2004), et seq.

Yes

Yes

POC

No

Pennsylvania

18 Pa Cons Stat § 6101 (2004), et seq.

Yes

Yes

POC

No

Rhode Island

RI Gen Laws § 11-47-2 (2004), et seq.

Yes

No

NICS

No

South Carolina

SC Codified Laws § 16-23-10 (2004), et seq.; 23-31-110, et seq.

Yes

No

NICS

Yes

South Dakota

SD Codified Laws § 16-23-19 (2004.), et seq; 23-31-110., et seq.

Yes

No

NICS

No

Tennessee

Tenn Penal Code Ann § 39-17-1301 (2004), et seq.

No

No

POC

Yes

Texas

Tex Penal Code Ann § 46.01 (2004) et seq.

Yes

No

NICS

No

Utah

Utah Code Ann § 53-5-704 (2004), et seq.; 76-10-501 (2004), et seq.

Yes

Yes

POC

Yes

Vermont

Vt Stat Ann § 13-4004, (2004) et seq.

No

No

NICS

No

Virginia

VA Code Ann §18.2-279 (2004), et seq.; 76-10-501, et seq.

Yes

Yes

POC

Yes

Washington

Wash Rev Code Ann § 9.41.010 (2004), et seq.

Yes

Yes

Partial

Yes

West Virginia

W Va Code § 61-7-2 (2004), et seq.

Yes

No

NICS

No

Wisconsin

Wis Stat § 175.30 (2003), et seq; 941.20, et seq.

Yes

Yes

Partial

No

Wyoming

Wyo Stat § 6-8-101 (2004), et seq.

Y

No

NICS

Yes

+ Only at state hospitals

Mental Health Laws and Databases

In 2005, Donna Norris, M.D. and her colleagues did an exhaustive study of state-by-state mental health gun laws and the states' ability to access mental health databases. 43 states and the District of Columbia had state laws prohibiting people with mental illness from obtaining firearms. In states with no specified restrictions, federal law governs.

There are many variations between the laws related to each state's definition of mental illness and restricted individuals. The laws prohibiting firearm purchase and possession also vary markedly in their restrictiveness. Several states also prohibit individuals who have been voluntarily admitted to a psychiatric hospital, and a few other states prohibit persons with certain mental health diagnoses from purchasing or possessing firearms. 20 states and D.C. had databases containing information on people with mental illness. Who actually has access to these databases and what information is contained also varies from state to state.

The recent public outcry has been to standardize firearm laws related to the mentally ill, as well as to create and/or improve upon access to databases related to a subject's mental health record. Concerns about such databases include breach of psychiatric confidentiality, which could hinder a patient's treatment, HIPAA violations, and the stigmatization (and in essence criminalization) of mentally ill individuals.

Presale Firearm Background Checks

There have been numerous attempts, some successful and others not, to provide uniform presale firearm background checks related to prohibited persons, and to allow sufficient time to complete such checks. Federal law firearm prohibitions include "anyone who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding 1 year, excluding crimes of imprisonment that are related to the regulation of business practices, anyone who is a fugitive from justice, anyone who is an unlawful user of or addicted to any controlled substance, anyone who has been adjudicated as a mental defective or has been committed to a mental institution, any alien illegally or unlawfully in the United States or an alien admitted to the United States under a nonimmigrant visa, anyone who has been discharged from the U.S. Armed Forces under dishonorable conditions, anyone who, having been a citizen of the United States, has renounced his or her citizenship, anyone that is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner, anyone who has been convicted of a misdemeanor crime of domestic violence, and anyone who is under the age of 18 for a shotgun or rifle, or under age 21 for a handgun." (18 U.S.C. § 921 et seq.)

In 1993, the Brady Handgun Violence Prevention Act was signed into law. The act requires Federal Firearms Licensees (FFLs) to request background checks on individuals attempting to receive a firearm. The act went into effect in 1998 and required the U. S. Attorney General to establish the National Instant Criminal Background Check System (NICS). The NICS is managed by the FBI. The NICS allows any FFL access to immediate information as to whether the receipt of a firearm by a prospective transferee would violate federal law 18 U.S.C. § 922 (g) or (n) or state law. A 1997 Supreme Court ruling in Printz v. United States (95-1478), 521 U.S. 898 (1997) resulted in a decision that states cannot be mandated to conduct background checks by the NICS. The Our Lady of Peace Act, which passed in the House but failed in the Senate in 2002, was a recent attempt to mandate that departments or agencies report people prohibited from receipt of a firearm to the NICS. Currently, federal rules allow states, at any time, to designate an agency as a "point of contact" (POC) for conducting their own Brady Act-related background checks, or states may rely on the NICS to conduct the checks or may use the NICS as partial contact. .

As of May 2006, the FBI reports that a total of 29 states rely entirely on the FBI to conduct all Brady Act-related background checks. 13 states have agencies acting in a full point of contact capacity. Full POC states designate a local or state law enforcement authority to conduct the federally required background checks within state boundaries. Eight states participate as partial point of contact states. These states have agencies that conduct checks for handguns and/or handgun permits, while the FBI processes all long gun (i.e., rifles and shotguns) transactions. 23 states report at least some mental health records to the NICS, however, the confidentiality status and nature of this information is in question. Privacy laws and lack of technical ability prevent 27 states and D.C. from sharing mental health information with the NICS. Only 11 of the 28 NICS states (full and partial) provide any of this information to the FBI.

The act initially required purchasers to wait up to five days for a background check to complete before purchasing a handgun from a federal firearms licensee. The waiting period provision of the act expired in 1998 when the NICS came online.

Currently, a handgun purchaser may have to wait for up to three business days if the background check fails to immediately approve or deny his/her application to purchase a handgun. If the denial is not issued within those three days, the transfer may be completed at that time by default. This can be problematic, as some states update databases in real time, while other states can take up to a week. With this in mind, several states have increased their waiting periods to up to ten days. This act only relates to handguns, but there are states that also require background checks for the purchase of long guns as well. Additionally, the Brady Act only applies to FFLs. It does not affect private sellers. It is estimated that 40% of all firearm transactions are through private sellers.

Table 2 State by State: Court Ordered Outpatient Treatment (AOT), Tarasoff Statutes, and Mental Health Rankings

Jurisdiction

Assisted Outpatient Treatment

State Code Sections

Tarasoff-Like Statutes As of 2002

NAMI 2006 Grades

United States

No

N/A

Specific Persons**

D

Alabama

Yes

Ala. Code § 22-52-10.4; § 22-52-10.2

No Tarasoff Like Law

D

Alaska

Yes

Alaska Stat. ; § 47.30.755(a); §47.30.915(7);§47.30.915(10)

Permission To Warn

D

Arizona

Yes

Ariz. Rev. Stat. § 36-540(A);§ 36-501(5), (6), (16), (33)

Duty To Warn: Discretionary*

D+

Arkansas

Yes

Ark. Code Ann. § 20-47-207(c)

No Tarasoff Like Law

D-

California

+

Calif. Welf. & Inst. Code § 5250; § 5008(h)(1); § 5346(a)

Duty To Warn: Nondiscretionary*

C

Colorado

Yes

Colo. Rev. Stat. § 27-10-111(1); § 27-10-102(5)

Duty To Warn: Nondiscretionary*

U

Connecticut

No

Conn. Gen. Stat. Ann. § 17a-498(c); § 17a-495(a)

Permission To Warn

B

Delaware

Yes

Del. Code Ann. tit. 16, § 5001(6); tit. 16. § 5010

Duty To Warn: Discretionary*

C-

D.C.

Yes

D.C. Code Ann.§ 21-545(b)

Permission To Warn

C

Florida

Yes

Fla. Stat. Ann. § 394.467(1); § 394.4655(1)

Permission To Warn

C-

Georgia

Yes

Ga. Code Ann. § 37-3-1(9.1); § 37-3-1(12.1)

No Tarasoff Like Law

D

Hawaii

Yes

Haw. Rev. Stat.;§ 334-60.2; § 334-121; § 334-1

No Tarasoff Like Law

C

Idaho

Yes

Idaho Code § 66-329(k); § 66-317(k), (m) ; § 66-339A

Duty To Warn: Discretionary*

F

Illinois

Yes

405 Ill Comp. Stat.5/1-119

Permission To Warn

F

Indiana

Yes

Ind. Code Ann. § 12-7-2-53; § 12-7-2-96; § 12-26-7-5(a); § 12-26-14-1; § 12-26-6-8-(a);

Duty To Warn: Nondiscretionary

D-

Iowa

Yes

Iowa Code § 229.14; § 229.1(15)

No Tarasoff Like Law

F

Kansas

Yes

Kan. Stat. Ann. § 59-2946a(f)(1); § 59-2967(a)

No Tarasoff Like Law

F

Kentucky

Yes

Ky. Rev. Stat. Ann. § 202A.026; § 202A.011(2)

Duty To Warn: Nondiscretionary*

F

Louisiana

Yes

La. Rev. Stat. Ann. § 28:55(E)(1); § 28:2(3), (4), (10)

Duty To Warn: Discretionary*

D-

Maine

No

Me. Rev. Stat. Ann. tit. 34-B, § 3864(6)(A) 34B, § 3801(4)

No Tarasoff Like Law

B-

Maryland

No

Md. Code Ann., Health-Gen. § 10-632(e)(2)

Duty To Warn: Discretionary*

C+

Massachusetts

No

Mass. Gen. Laws Ann. ch. 123, § 8(a); ch. 123, § 1

Duty To Warn: Discretionary

C-

Michigan

Yes

Mich. Comp. Laws Ann. § 330.1401

Duty To Warn: Discretionary*

C+

Minnesota

Yes

Minn. Stat. Ann. § 253B.09(1); § 253B.02(13)(a), (17); § 253B.065(5)(b)

Duty To Warn: Nondiscretionary

C+

Mississippi

Yes

Miss. Code Ann. § 41-21-73(4); § 41-21-61(e)

Duty To Warn: Nondiscretionary

D

Missouri

Yes

Mo. Ann. Stat. § 632.335(4); § 632.005(9), § 632.350(5)

Duty To Warn: Discretionary

C-

Montana

Yes

Mont. Code Ann. § 53-21-126(1); § 53-21-127(7)

Duty To Warn: Nondiscretionary*

F

Nebraska

Yes

Neb. Rev. Stat. § 83-1037; § 83-1009

Duty To Warn: Nondiscretionary*

D

Nevada

No

Nev. Rev. Stat. § 433A.310(1); § 433A.115

No Tarasoff Like Law

D-

New Hampshire

Yes

N.H. Rev. Stat. Ann.§ 135-C:34; § 135-C:27

Duty To Warn: Nondiscretionary

D

New Jersey

No

N.J. Stat. Ann.§ 30:4-27.2(m), (r),(h),(i)

Duty To Warn: Discretionary

C

New Mexico

No

N.M. Stat. Ann. § 43-1-11(C); § 43-1-3(M), (N)

No Tarasoff Like Law

C-

New York

Yes

N.Y. Mental Hyg. Law § 9.31(c); § 9.01, § 9.60(C)

Permission To Warn

U

North Carolina

Yes

N.C. Gen. Stat. § 122C-268(j); §122C-3(11); § 122C-267(h); § 122C-263(d)(1); § 122C-271(a)

No Tarasoff Like Law

D+

North Dakota

Yes

N.D. Cent. Code § 25-03.1-07; § 25-03.1-02(12)

No Tarasoff Like Law

F

Ohio

Yes

Ohio Rev. Code Ann. § 5122.15(C); § 5122.01(B)

Duty To Warn: Discretionary*

B

Oklahoma

Yes

Okla. Stat. Ann. tit. 43A, § 1-103(13) a. tit. 43A, § 1-103(18)

Duty To Warn: Discretionary

D

Oregon

Yes

Or. Rev. Stat. § 426.005(1)(d)

Permission To Warn

C+

Pennsylvania

Yes

50 :State w:st="on">Pa. Cons. Stat. Ann. § 7301(A).; § 7304(f)

Duty To Warn: Discretionary

D+

Rhode Island

Yes

R.I. Gen. Laws § 40.1-5-8(j); § 40.1-5-2 (7)(i); § 40.1-5-2 (8)

Permission To Warn

C

South Carolina

Yes

S.C. Code Ann. § 44-17-580; §44-23-10(1),(2)

Duty To Warn: Nondiscretionary

B-

South Dakota

Yes

S.D. Codified Laws § 27A-1-2; § 27A-1-1 (4), (5)

No Tarasoff Like Law

F

Tennessee

No

Tenn. Code Ann. § 33-6-501

Duty To Warn: Discretionary

C-

Texas

Yes

Tex. Health & Safety Code Ann. § 574.034; § 574.035 § 574.034; § 574.035

Permission To Warn

C

Utah

Yes

Utah Code Ann. § 62A-15-631 (10)62A-15-602 (12) 62A-15-602 (13)

Duty To Warn: Nondiscretionary*

D

Vermont

Yes

Vt. Stat. Ann. tit. 18, § 7611 tit. 18, § 7101(16) tit. 18, § 7101(17)

Duty To Warn: Discretionary

C-

Virginia

Yes

Va. Code Ann. § 37.2-817; § 37.2-817

Only if Involuntarily Hospitalized

D

Washington

Yes

Wash. Rev. Code Ann. § 71.05.240; § 71.05.020(19); § 71.05.020(14) ; § 71.05.020(16); § 71.05.020(32)

Duty To Warn: Nondiscretionary*

D

West Virginia

Yes

W.Va. Code §27-5-4(j); 27-1-12

Permission To Warn

D

Wisconsin

Yes

Wis. Stat. Ann. § 51.20(1)(a)1; § 51.20(1)(a)2

Duty To Warn: Unclear

B-

Wyoming

Yes

Wyo. Stat. Ann. § 25-10-110(j); § 25-10-101(a)(ix); § 25-10-101(a)(ii)§ 25-10-110(j)(ii)

No Tarasoff Like Law

D

+California: Separate outpatient standard only available in counties that have adopted provisions established by Assembly Bill 1421 (2002) (a.k.a. Laura’s Law); otherwise mandated outpatient treatment only permitted via conservatorship process

*Duty to Warn: Discretionary: States that require law enforcement notification.

Court Ordered Assisted Outpatient Treatment

Statutes providing for Court Ordered Assisted Outpatient Treatment (AOT) may also be known as Kendra's Law, Kevin's Law, Laura's Law, etc. After several incidents that resulted in the death or serious harm of an individual by a mentally ill subject, many states established a procedure for obtaining court ordered assisted outpatient treatment for the severely mentally ill. The criterion for court ordered AOT are specific and comprehensive related to a mentally ill individual who presents as a substantial and ongoing risk to the safety of themselves or others and has a history of treatment noncompliance. 42 states and D.C. have implemented laws for court ordered assisted outpatient treatment. California allows for AOT by county; only Los Angeles has bought into it at this time. There are obvious advantages to court ordered assisted outpatient treatment. Specially, AOT criteria does not require a person to be an "imminent danger" to themselves or others, as does a petition for an involuntary inpatient commitment. It also allows for a person to be ordered to treatment to prevent a relapse that could result in the serious harm of the individual or others. Outpatient treatment is certainly less restrictive than inpatient for the individual. It also frees up frequently limited bed availability for individuals who present as a more imminent risk. However, AOT is only effective in preventing harm to self/others if there is consistent follow-up by the court and the mental health system.

Duty to Warn Laws

Background: In Berkeley, California in 1969, Prosenjit Poddar confided to Dr. Lawrence Moore his intent to kill Tatiana Tarasoff. Several months later, Poddar carried out his threat and killed Tarasoff. Neither Tatiana nor her parents received any warning of the threat. Tarasoff's parents then sued Moore.

Statutes based on the Tarasoff incident create exceptions to therapist-patient confidentiality. The "duty to warn" relates to a patient telling his/her therapist that he/she has plans to harm another. 13 states have laws addressing a mental health clinician's responsibility to warn the intended victim or law enforcement. The laws related to other states are frequently ambivalent. 27 states impose a "duty to warn" potential violence to a third party. 12 of these states make this duty nondiscretionary (not subject to the judgment of the therapist). 15 "duty to warn" states explicitly incorporate the therapist's judgment. Nine states and D.C. permit, but do not require, a therapist to breach confidentiality and warn the third party. 14 states require law enforcement notification. However, most prudent clinicians in duty states will contact the sheriff's or police department, largely to transfer some if not all of any civil liability in the worst case scenario situations (local governments tend to have deeper pockets). State laws certainly differ, but may require law enforcement officers to confiscate the individual's firearms and report to the DOJ.

Mental Health Systems

Perhaps the most important component to this whole mess is that the state mental health systems' ability to treat the most severely mentally ill is often dismal. The National Alliance for the Mentally Ill (NAMI) analyzed 48 states' adequacy related to mental health infrastructure, information access, services, and recovery support. For an overview of your state's grade related to the ability to treat the most seriously mentally ill and a discussion about the urgent needs of your state's system, see the link below. New York and Colorado did not respond to NAMI's request for information

This ultimately does become a law enforcement problem when an officer or deputy is trying to secure treatment for their jurisdiction's most seriously mentally citizens. It becomes a personal problem if you, a loved one, a friend or a peer is in need of mental health care.

Additional Information and Thoughts to Ponder

The association between violence and untreated psychiatric disorders has been established. Millions of Americans suffer from the severest forms of mental illness, schizophrenia and bipolar disorder, and studies estimate that about 50% of these individuals are not receiving treatment.

Since the mass closure of state hospitals decades ago, coupled with the deterioration of psychiatric services in most states, the most severely mentally ill are not being appropriately treated. The common denominator in one-half of all mass killings is that the killer has a severe psychiatric disorder that is not being treated. These individuals are usually well-known to the mental health system. Homicide is only one result of untreated mental illness. The mentally ill frequently complete suicide, are left homeless, are victimized, or are incarcerated when psychiatric treatment may have been a better solution.

Will changing mental health gun laws and making mental health databases accessible to law enforcement prevent the most severely untreated mentally ill from taking another person's life? Absolutely not. In this country, if you want a gun, you can get a gun. Those who believe otherwise are simply naïve. A mentally ill individual who is homicidal or suicidal doesn't really care (or sometimes even know) that they may be prohibited from buying or possessing a gun. If he/she cannot buy one from a FFL, there is always the private seller, a friend, or the tried and proven method of stealing a firearm. If someone is truly determined to kill themselves or others and cannot obtain a gun, they will use an alternative method to kill. That is not to say that legislation which is consistent and not a knee-jerk response could make an officer, the mentally ill individual, and others a little safer. Mental illness is indeed an illness and sufferers are entitled to reasonable level of confidentiality related to their disorders. Obviously, there is no quick fix solution to the disarray of current background check laws, confidentiality related to mental health databases, or the country's inability to provide adequate and appropriate treatment for the mentally ill population.

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