Photo: Eric Kayne, Staff / Houston Chronicle Photo: ERIC DEXHEIMER / HOUSTON CHRONICLE Photo: Scott Olson, Staff / Getty Images Photo: Associated Press Photo: Alex Brandon, STF / Associated Press Photo: Eric Gay, STF / Associated Press Photo: Eric Gay, STF / Associated Press Photo: Eric Kayne, Staff / Houston Chronicle

FAYETTE COUNTY — On a scorchingly hot afternoon in September 2013, an armored Special Weapons and Tactics truck rumbled down a dirt road, stopping in front of a weathered single-story house. The Fayette Power Project loomed over the trees to the west. A Texas Department of Public Safety helicopter hovered overhead. Federal and local police gathered on the ground.

The target of the assembled firepower: A 71-year-old man with a gun who three months earlier had been released from the Austin State Hospital’s psychiatric facility.

Federal law said James Kollaja’s recent commitment for what his psychiatrists described as paranoid schizophrenia and dementia prohibited him from possessing any guns. Yet it hadn’t worked out that way.

Police said Kollaja recently had taken a pot-shot at his nephew. Now, as officers gathered outside his home, the helicopter spotter reported he was standing near a barn on his property, loading his rifle.

In a state founded on a dare for authorities to confiscate its guns, separating Texans from their firearms has never been simple. Yet thanks to legal machinery whose individual gears often don’t mesh, today it remains true even for those who most people agree shouldn’t have guns.

Often called the relinquishment gap, the phrase describes the missing spans between laws that on paper forbid certain people from having firearms, and the legal enforcement tools to ensure that they genuinely don’t. Texas isn’t alone in failing to patch the holes. But because of the state’s sheer numbers - more people die here by firearm than any other state - the issue casts a larger shadow than in other places.

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The question of how to wrest firearms from dangerous people legally or temperamentally unfit to possess them has percolated to the surface as mass shootings committed by people with histories of instability have exposed the legal cracks that allowed them to acquire their guns.

It was widely reported that a domestic violence conviction while he served in the armed forces should have prohibited Devin Patrick Kelley from possessing his guns. But the U.S. Air Force failed to report it to the FBI, which maintains databases used by firearms dealers to perform background checks, so he could purchase the four guns he used in November 2017 to massacre 26 people at the First Baptist Church in Sutherland Springs.

Lesser-known, though, is the Texas Department of Public Safety earlier had rejected Kelley’s application for a state license to carry a gun in public. What disqualifying information Texas uncovered remains unclear; the public safety agency did not respond to questions.

Most gun-control efforts traditionally have focused on preventing those who would misuse firearms from getting them. Yet relatively little has been done to ensure that weapons are removed from those who already have them, but shouldn’t.

While the law prohibits domestic abusers from possessing firearms, for example, only a dozen states have passed laws mandating that they prove they’ve given up their guns. Texas is not one of them, relying instead on a patchwork of local initiatives to reel in illegally held guns from potential abusers.

Many states - Texas included - have passed laws permitting police to confiscate a firearm in the possession of a person experiencing a mental health crisis. A much smaller number have enacted “red flag” laws, which allow family members and others fearful of a person’s mental stability to petition authorities to confiscate all his guns and ammunition, if only temporarily, to thwart imminently dangerous behavior.

Texas legislators have introduced similar bills. But they are opposed by the state’s influential gun lobby, which argues that current laws are sufficient, and that removing constitutionally protected guns even from a dangerous person doesn’t meaningfully prevent the threat.

Related: Red flag law, closing gun show loophole among 19 gun bills filed by Texas lawmakers

The 2017 red flag proposals didn’t pass. This year’s versions are predicted to meet a similar fate after Gov. Greg Abbott and Lt. Gov. Dan Patrick expressed opposition.

“It’s going to be a steep climb,” said Greg Hansch, public policy director for the Texas chapter of the National Alliance on Mental Illness.

Illegal guns turned in ‘on the honor system’

Prosecutors and advocates trying to prevent domestic violence have fought the firearm relinquishment battle for years. Studies show abused women are more likely to be killed if their partner has access to a gun, so a domestic violence conviction or protective order typically forbids abusers from possessing one.

Actually collecting the guns can be a different matter. Handing the weapons over typically “is on the honor system,” said Carla Bean, who runs the Dallas County District Attorney’s protective order division. “They can swear to not having a gun. But we don’ t know.”

In 2015, the county started a program in which judges and prosecutors directly asked defendants if they had guns to relinquish. Dallas officials estimated the new procedure would harvest about 800 firearms a year from those who shouldn’t have them.

Instead, the number has been closer to 30. Jerry Varney, administrative chief for the agency, said the main reason is that people haven’t been shy about lying.

“It’s easy for them to say [they have no guns] when they know you have no way of checking,” he said. “I could count on one hand how many times people said they have firearms. They could say ‘no’ and feel secure in the fact no one is coming to their house to look.”

In Travis County, which quizzes victims about their abusers’ gun collections, the number of annual gun confiscations has been closer to 100, said county Judge Michael Denton, who oversees the county’s domestic violence docket.

Yet Shelli Egger, a legal aid attorney who sits on the Austin-Travis County Family Violence Task Force, said that in the absence of state law or even county-wide policy, confiscation procedures vary widely. For every judge who insists guns be turned in, she said, there is another who doesn’t ask or declines to pursue guns even when they are known about.

“I don’t think the victim’s safety should depend on which court their case is assigned to,” Egger said.

More perilous, Egger said, can be emergency protective orders, in which an abuser is deemed dangerous enough that a judge immediately orders him to stay away from his victim until his case can be heard formally by a judge, which can take up to two weeks. Yet even if the order contains a gun prohibition, officers delivering the orders seldom, if ever inquire about guns on the premises that must be forfeited, she said: “It doesn’t work that way.”

“Who wants to throw on the body armor and confiscate people’s firearms?” said Shannon Edmonds, director of governmental relations for the Texas District and County Attorneys Association.

‘He was going to shoot us’

Kollaja was familiar to local police in this rural county midway between Austin and Houston. A U.S. Army veteran, he increasingly had become angry at the government for what he described as poor treatment, recalled Fayette County sheriff’s spokesman Lt. David Beyer.

In March 2013, “One day he came to the office,” Beyer said. “He was upset about something. He had a letter and it had some threats. I said, What you’re saying in here is not good; we’re gonna have to hold onto your guns.

“He turned around and walked out and we followed him. He was trying to get into his car and we stopped him. He had a pistol and two rifles inside. If we hadn’t stopped him, I think he was going to shoot us.”

Court documents show that two weeks later Kollaja was committed to Austin State Hospital for 90 days. He was ordered to turn over his large gun collection to his nephew.

Over the years, states have scrambled to figure out how to balance their citizens’ Second Amendment rights with keeping guns out of the hands of people whose judgment appears dangerously impaired. Federal law prohibits those who’ve been committed to a mental institution from buying or possessing a firearm.

States must report them to the FBI. As of 2018, Texas had submitted 285,000 names to the agency (the number includes defendants found not guilty by reason of insanity in criminal proceedings, as well as those placed under legal guardianship).

Yet the gun prohibition applies only to those hospitalized involuntarily; if a person agrees to psychiatric commitment or receives outpatient treatment, he may still legally buy and possess a gun. In Texas, which typically has between 200 and 300 people waiting for a bed in a state psychiatric hospital, advocates say many who could be committed to a state hospital instead are shuffled to outpatient treatment, leaving their gun rights intact.

Doctors at private facilities, meanwhile, may also be reluctant to order long-term inpatient care, said Kelly Cross, a former Bexar County mental health judge. “Most physicians where I am, they don’t want a commitment,” she told legislators during a hearing last summer. “Why? Because more than likely the commitment is going to be to their private hospital and they don’t have bed space.”

Such pressures make involuntary commitments relatively uncommon. In 2017, Texas judges granted about 7,500 of just under 50,000 applications for mental health commitments, according to the Texas Office of Court Administration. (The number includes people placed under legal guardianship, who also may not possess firearms.)

Few mental health gun confiscations

In search of another tool to separate dangerous people and their guns, states have passed laws permitting police to confiscate firearms from citizens in a mental health crisis. Texas’s version, passed in 2013, permits police on scene where an armed person appears to be a danger to himself or others to confiscate his gun.

But the law applies only to any gun in the person’s immediate possession, explained Maj. Mike Lee, who heads the mental health bureau at the Harris County Sheriff’s Office. Other firearms the person may own elsewhere - in his house, under his bed - are off-limits to police.

According to a survey of the state’s larger law enforcement agencies, the law has resulted in only a small number of confiscations. Austin police take about four dozen guns a year; for Harris County sheriff’s deputies, the number has been 30. Dallas police reported none since the law passed.

Because most people in crisis are not involuntarily committed, the guns usually are returned. In 2017, Houston police wrote about 10,000 mental health emergency detentions, Capt. Bill Staney, division commander of the department’s mental health unit, told state lawmakers last summer. Sixty-five of them had guns that police confiscated, but only eight were eventually committed involuntarily.

“So only eight out of all those people…could no longer have firearms,” he said.

And even if the confiscated gun may no longer be available to the person after his commitment, Texas has no system to ensure a person deemed mentally incapacitated relinquishes any others he may own. “It’s okay in our state for him to own those guns,” said Travis County Probate Judge Guy Herman. “We don’t have a law.”

Red flag laws - also known as extreme risk protection orders -- allow family members and others, such as mental health counselors or police, to ask a judge to order a loved one’s guns temporarily taken away from a person at risk of becoming a danger. Twelve states have passed them, according to the Giffords Law Center to Prevent Gun Violence. A study of Indiana’s and Connecticut’s law, two of the oldest, concluded they lowered the states’ suicide rates.

Gun rights advocates said they oppose Texas adopting the measures. “Red flag laws and due process are oxymorons,” Terry Holcomb, executive director of Texas Carry, told legislators, adding that existing laws were sufficient protection against gun violence.

“All I care about is that someone’s rights have not been stripped from them, including their firearms, when you’re not taking their car, you’re not taking their steak knives, you’re not taking the rope, you’re not taking the drugs out of the medicine cabinet…but - for a while - you’ve collected their firearms,” added Alice Tripp, a representative of the Texas State Rifle Association, said at the hearing. “That’s just wrong.”

Even spotting gun, no authority to take it

Police heard next from James Kollaja over 2013’s Labor Day weekend, when he demanded his nephew return his gun collection, according to court documents. “When he refused, Kollaja became angry and threatened to shoot him.”

It’s unclear where Kollaja obtained his new, now-illegal guns; his nephew declined to comment. Kollaja allowed a Fayette County deputy onto his porch, but no farther. Peeking inside the screen door, the deputy spotted a black rifle with a scope on it leaning against the wall.

But the officer ran into a legal gap thwarting the gun’s confiscation.

Because it is a federal law that prohibits anyone who has been forced into inpatient psychiatric care from owning guns, local police can’t seize the weapon unless they pass their own companion law. Texas hasn’t. The deputy “had no State authority to retrieve the firearm from Kollaja, even though Kollaja was previously committed into a mental facility by court order,” court documents state.

The police retreated, later contacting U.S. attorneys in Houston. After a 10-day wait, a federal judge finally issued a search warrant.

Deputies drove to Kollaja’s house and asked him to accompany them to their office to surrender his guns voluntarily. Sitting on his porch with his gun across his lap, he declined, explaining he didn’t trust the police. The S.W.A.T. team was called.

As negotiations broke down, police fired “numerous” canisters of tear gas and a flash-bang device. When they entered Kollaja’s house, he was found in a bedroom, “asleep, with a loaded rifle in his possession,” the documents state.