Seven years ago, a severely mentally ill student at Virginia Tech shot and killed 32 of his classmates and teachers, exposing in devastating fashion the fatal gaps in our nation’s criminal background check system for gun sales. Virginia had failed to submit the critical records that would have identified the shooter as dangerously mentally ill and blocked him from buying guns.
Indeed, states’ failure to submit these mental health records made it easy for millions of dangerously mentally ill individuals to pass background checks, even though federal law prohibited them from owning guns. In the November 2011 report Fatal Gaps, Mayors Against Illegal Guns (MAIG) documented that 23 states and the District of Columbia had each submitted fewer than 100 records to the FBI’s National Instant Criminal Background Check (NICS) system. Fatal Gaps called for stronger state reporting laws and for federal funding to states to build needed reporting infrastructure.
Today, less than three years later, this update finds that many states and the federal government have adopted these recommendations, and the background check system has dramatically improved. There has been tremendous progress:
- Eighteen states have passed new record-reporting laws or amended existing law, leaving only 11 states and the District of Columbia without any reporting laws.
- The total number of prohibiting mental health records submitted to NICS has tripled.
- The number of states that have reported fewer than 100 records has been cut nearly in half, from 23 to 12.
- Most importantly, with more records now in the system, 65 percent more severely mentally ill people who try to buy guns are blocked from doing so.
But there is still work to be done: 11 states and DC have persisted in their failure to pass reporting laws—and 12 states have reported fewer than 100 records total to the background check system. When states fail to submit records, there is nothing to stop dangerously mentally ill people from passing background checks and buying guns.
On April 16, 2007, Seung-Hui Cho shot and killed 32 peopleand wounded 17 others at Virginia Tech in the worst school shooting in American history. A year before the massacre, a judge had found that Cho was mentally ill and posed an imminent threat—meaning that he was prohibited from owning a gun under federal law. But the records documenting Cho’s mental illness were never sent to NICS. Cho passed a background check and bought the guns he carried onto campus.
One year later—and more than 14 years after federal law began requiring background checks for sales made by gun dealers— Congress responded, passing a law that incentivized states to submit prohibiting mental health records to NICS and threatened to withhold federal money if they failed to do so.
But millions of records were still missing from the system. In November 2011, MAIG did a first-of-its-kind review assessing how states were doing. In its report Fatal Gaps, MAIG analyzed state-by-state obstacles to reporting and set forth best practices states should adopt.Fatal Gaps is available at http://everytown.org/article/fatal-gaps/
This update, nearly three years later, finds that the background check system is markedly improved. Many states have adopted or fixed reporting laws, federal funding continues to help states strengthen their systems, and more prohibited people who try to buy guns are blocked from doing so.
Fatal Gaps: Where We Stood in 2011
Under federal law, any person involuntarily committed to a mental institution or found to be a danger to self or others is federally prohibited from owning guns.18 USC §§ 921, 922. This standard for prohibition has been in place for nearly fifty years, and sets a high bar that does not include people who voluntarily commit themselves or else undergo only emergency evaluations. Courts and hospitals are responsible for sending records that identify these severely mentally ill people to NICS—often via law enforcement or a central court agency. If one of these prohibited people then attempts to buy a gun from a dealer and undergoes the required background check, the FBI will deny the sale— and will not disclose the reason to the dealer or compromise the purchaser’s privacy in any way.
But a background check is only as good as the records in the system. And as Fatal Gaps documented in 2011, many states were failing to submit mental health records to the background check database, leaving the door wide open for dangerous people to buy guns.
Fatal Gaps identified three main reasons states were failing to submit these records:
- State laws were not in place. As of November 2011, 19 states had no laws requiring or else expressly authorizing or else requiring courts or mental health facilities to report mental health records to the background check system. In others, state codes gave only vague direction as to which records should be reported, which entities were responsible for doing so, and in what timeframe records must be sent. Without clear direction, many courts and hospitals simply took no action.
- States lacked funding to take action. As an incentive to pass record reporting laws, Congress created the NICS Act Record Improvement Program (NARIP)—offering grant funding for states to build reporting infrastructure. To be eligible for funding, states must enact a “relief from disabilities” (RFD) program that allows prohibited people to petition, when appropriate, for restoration of their gun rights.Those records are held in the NICS Index, which may be accessed only by officials conducting a point-of-sale background check, state agencies evaluating applicants for firearms permits, and federal enforcement of gun laws. 18 CFR § 25.6. As of November 2011, only 16 states had RFD programs that were approvedas compliant by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)—and only 14 states had received NARIP funding. Meanwhile, officials in at least 17 states reported that funding obstacles kept records from being submitted, and officials in at least 11 states described other logistical problems that made reporting difficult.
- Perceived privacy concerns held states back. As of November 2011, officials in at least 25 states reported that privacy concerns stood in the way of record reporting or had previously stood in the way—including many officials worried that the Health Insurance Portability and Accountability Act (HIPAA) blocked reporting. In fact, HIPAA does not prevent states from submitting records to NICS. Federal law strictly limits any disclosure of the mental health records in the background check system,See the NICS Improvement Amendments Act of 2007, P.L. 110-180. and when the system denies a would-be buyer, it provides no information about the underlying cause for denial. Nonetheless, at the time of the Virginia Tech shooting, many officials believed that HIPAA or state privacy laws prevented them from sharing records with NICS or were unclear on whether sharing was permitted.
As a result, states had submitted only 1.1 million mental health records to NICS at the time of Fatal Gaps. And 23 states and the District of Columbia had each submitted fewer than 100 records total.
The System Today
Since 2011, MAIG pressed Congress for federal money to help with submission of records and advocated for states to pass and improve reporting laws.
Today, new state laws are put in place, privacy concerns are resolved, and states get the funding they need. More records are getting in and more prohibited people are being stopped.
The number of submitted records has increased dramatically. Between October 2011 and the most recent data available in March 2014, the number of state mental health records in NICS tripled, from 1.1 million to 3.4 million.Federal Bureau of Investigation, Active Records in the NICS Index, available at http://1.usa.gov/1kq1IW6 As of November 2013, only 12 states had submitted fewer than 100 records each to NICS, compared to 23 states in October 2011.
The more comprehensive background check system has blocked an increasing number of gun sales to the severely mentally ill. In 2013, 65 percent more gun sales to seriously mentally ill people were blocked than in 2011.These figures exclude denials made by the 13 point-of-contact states, including three of the five states that have submitted the most mental health records per capita. They also partially exclude denials made by the 8 partial point-of-contact states. For a full list of these states, see http://www.fbi.gov/about-us/cjis/nics/poc.
The same effect can be seen in individual states, where more records submitted has meant more denied gun sales. In Virginia, between August 2010 and November 2013, the number of mental health records submitted rose by 45 percent. Meanwhile, the number of blocked gun sales to people with serious mental illness rose in parallel, by 47 percent from 2010 to 2013.Virginia had reported 139,185 records as of August 2010 and 201,365 records as of November 2013. 215 sales to the seriously mentally ill were blocked in 2010 and 316 were blocked in 2013. Data obtained from the Virginia Department of State Police.
The System Today: State Laws
In the two and a half years since Fatal Gaps was published, 18 states have enacted new record- sharing statutes or have amended existing record- sharing laws in substantial ways.
- Record-reporting statutes were passed for the first time in Alaska, Hawaii, Louisiana, Maryland, Mississippi, Oklahoma, South Carolina, and South Dakota.As of this writing, the Alaska and Hawaii bills are awaiting approval from the respective governors. 2014 AK HB 366; 2014 HI HB 2246; 2013 La. HB 717; 2013 Md. SB 281; 2013 Miss. SB 2647; 2014 OK SB 1845; 2013 SC HB 3560; 2014 SD HB 1229.
- Major amendments were enacted in 10 states— Alabama, Arizona, Colorado, Florida, Minnesota, Nebraska, New Jersey, New York, North Carolina, and Tennessee—with provisions that set specific deadlines for record submission, expanded the set of records to be submitted, and revised the submission process.In Arizona, for example, a bill that passed in April 2014 fixed a law that had provided only vague authority to submit records. The law now affirmatively requires record submission and provides clear direction. 2013 Al. SB 133; 2014 AZ HB 2322; 2013 CO HB 1229; 2013 Fla. HB 1355; 2013 Minn. SF 671; 2014 NE LB 699; 2013 NJ AN 3717; 2013 NY SN 2230; 2013 NC HB 937; 2013 Tenn. SB 789.
There is a direct connection between enacting a record submission law and a state’s actual performance in submitting records.
- Ninety-seven percent of all records submitted in the most recent six months of available data were submitted by states with laws in place. And 19 of the 20 states with the largest increase in submitted records had reporting laws.
- Conversely, among the 12 states with fewer than 100 total records reported as of November 2013, 11 had no such law in place.North Dakota is the only state with fewer than 100 submitted records to have a reporting law. The law was enacted in 2011, but its reporting provisions took effect only after funding was in place and the state attorney general certified the infrastructure. 2011 ND HB 1269. The state received NARIP funding in 2011 and 2012, and state officials say that the infrastructure has now been certified. Officials estimate that reporting of all relevant mental health records will begin in Spring 2014.
With the passage of new laws across the country, there are now only 11 states remaining (plus the District of Columbia) that do not have reporting laws on the books [See Appendix 1 for details on which states have laws in place]. Several of the lowest-performing states have laws that are just going into effect—including Alaska, Hawaii, Louisiana, Maryland, and South DakotaThe Maryland law took effect October 2013, the Louisiana law took effect January 2014, and the other laws will take effect in 2014.—and they are expected to begin submitting records in the coming months.
In many states that have improved performance, the only obstacle to reporting was that the law was not in place—and they began submitting records immediately after legislation was passed. For example, Delaware had submitted no mental health records to NICS as of April 2012. A law requiring NICS reporting became effective in June 2012, and within six months Delaware—which already held these records in a state repository—had submitted 18,699 records to the federal system.2011 Del. HB 48. Similarly, other states with existing repositories, like Hawaii and Massachusetts, may improve record submissions quickly once new laws are in place.
The System Today: Funding
Setting up a record submission system has a price tag—and many states reported in November 2011 that they couldn’t afford the cost. But the funding streams Congress put in place have helped turn the tide, providing states with the much-needed resources to make progress.
States have used NARIP money to automate the process of submitting mental health records, to digitize old paper records, to purchase and customize case management systems, to employ new staff to manage the systems, and to coordinate between courts and mental health facilities throughout the state.For more detail on NARIP funding amounts and uses by state, see Bureau of Justice Statistics, NICS Act Record Improvement Program Awards FY 2009-2013, available at http://1.usa.gov/RaqGgP. Time and again, this federal funding has made the difference in putting infrastructure in place and starting the flow of records into the system. Congress created multiple grant programs to help states manage records, but NARIP money can only be funded to states that pass RFD laws—an incentive for states to take action.
MAIG has pressed federal appropriators to fund state grants fully, and the total figures in this area have risen dramatically. The Fiscal Year 2014 budget appropriated over $40 million more than 2013 levels—a historic high of $58.5 million for these grants. And the FY14 budget requires that the NARIP funding component be “no less” than the $12 million funded in 2013. The White House has called for funding at similar levels for FY15.
Twenty-two states have now benefitted from NARIP funding since 2009—receiving a total of over $60 million.
- Eight new states received NARIP funding in 2012 and 2013.
- Since the publication of Fatal Gaps, 10 states have passed new RFD laws that may enable those states to receive NARIP funding.States with RFD laws passed since November 2011 include Alaska, Colorado, Hawaii, Louisiana, Maryland, Mississippi, Oklahoma, South Carolina, South Dakota, and Utah.
- In addition, major amendments to RFD law were enacted in Alabama, Missouri, North Carolina, and West Virginia, conforming those provisions to ATF requirements. After Alabama, Missouri, and West Virginia amended their laws, they were quickly approved by ATF, and all three states have since received NARIP funding.
- ATF has approved a total of 26 state RFD programs, including 10 programs since the beginning of 2012.Programs have been approved since 2012 in Alabama, Delaware, Indiana, Louisiana, Maryland, Missouri, Nebraska, South Carolina, Utah, and West Virginia. Programs were approved at an earlier date in Arizona, Connecticut, Florida, Idaho, Iowa, Illinois, Kansas, Kentucky, North Dakota, New Jersey, Nevada, New York, Oregon, Texas, Virginia, and Wisconsin. At least 13 additional states have RFD laws on the books, some of which may already meet the requirements for approval.States with RFD laws that have not been approved include Alaska, Colorado, Hawaii, Maine, Minnesota, Mississippi, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, and Washington.
The System Today: Privacy Concerns
Fatal Gaps found that many states have historically held back from reporting mental health records out of perceived concern that HIPAA or other privacy law prevents reporting. Since November 2011, the federal government has helped allay those fears, and the states have found a path forward.
In August 2012, Secretary of Health and Human Services (HHS) Kathleen Sebelius wrote a letter clarifying that HIPAA does not block courts from reporting mental health records—and that the federal statute does not block mental health providers from doing so, if state law requires them to report records.A copy of the letter is available at bit.ly/1jtY9hq Pursuant to an executive order in January 2013, HHS published a proposed rule that would expressly allow providers and other HIPAA- covered entities to report records—even without special state authorization.The listing for the proposed rule is available at http://1.usa.gov/1qVUHl9. The final rule will remove any perceived federal barrier and ease any ambiguity about record sharing.
Meanwhile, several states have overcome specific privacy concerns expressed at the time of Fatal Gaps by passing new laws that require reporting. New laws in Hawaii and South Carolina amend existing confidentiality law to create narrow exceptions for NICS reporting. A new Mississippi law allows use of mental health information as necessary for FBI purposes, and a new South Dakota law bars disclosure of detailed diagnosis or treatment information.2014 HI HB 2246; 2013 Miss. SB 2647; 2013 SC HB 3560; 2014 SD HB 1229.
What's Next: Action Needed
While major strides have been made in reforming state laws and reporting records to NICS, 11 states and the District of Columbia have still failed to pass laws requiring record submission. These remaining states, described in detail in the appendix, should act to put laws in place, so that seriously mentally ill people cannot slip through the cracks and buy guns.
States with reporting laws should improve those laws to ensure they are effective in stopping illegal sales. In fact, at the time of the Virginia Tech shooting, Virginia was already submitting some mental health records to the system—but its submissions were not comprehensive enough to stop the shooter. States should ensure their laws include the following elements:
- Reporting all prohibiting records: Many states report only a subset of all prohibiting records, for example reporting mental health commitments but not other court findings that a person poses a danger to the public. These states should ensure that all people prohibited due to mental illness are reported to the system.Since the release of Fatal Gaps, states like Arizona, New York, and North Carolina have passed laws that expand which prohibiting mental health records must be submitted to NICS. Otherwise, these individuals will be able to pass background checks.
- Reporting by both courts and mental health facilities, where appropriate: In many states, prohibiting mental health records are held by both courts and mental health facilities. If a state law doesn’t require reporting by all appropriate entities, records held exclusively by mental health facilities may not be reported, enabling dangerous people to buy guns.States like California, Connecticut, Illinois, and Maryland require reporting both by courts and facilities.
- Requiring reporting, rather than merely allowing it: Several states, including top submitting states like Florida, Missouri, and Pennsylvania, do not explicitly require that records be reported.New Jersey, which has the second-highest per capita reporting rate, amended its laws in 2013 to require—rather than merely allow—reporting. A 2014 law in Arizona closed the same gap. These states should provide clear statutory direction that records must be reported so that a change in political will or funding does not hold back progress.Indeed, at the time of Fatal Gaps, officials in at least eight states said that a lack of political will stood in the way of passing new laws or reporting records.
- Reporting promptly: Many states require reporting but do not set a prompt submission deadline. State law should set a short reporting timeframe, preferably within two business days after the prohibiting event. Otherwise, a person in an acute mental illness episode may be able to buy a gun simply because the state processes records slowly.North Carolina and Tennessee each amended their laws in 2013 to require prompt reporting, respectively within 48 hours and within three business days after a person becomes prohibited.
- Reporting older records: Some states do not address reporting of commitments that took place before their laws went into effect. If these records are not sent into the system, dangerous people may be able to buy guns simply because their commitments were not recent.In Florida, according to state officials, about 43 percent of all reported records (45,000 out of over 105,000 records reported as of November 1, 2013) represent people who were prohibited before the statute was enacted in 2007. Meanwhile, officials in Iowa told us that they have not submitted records produced before their law was in effect—but that they hope to receive NARIP funding this year to review and submit them. In North Dakota, officials believe their statute does not allow for reporting of historical records, and there is no plan in place to submit those records.
- Creating a suitable relief from disabilities program: States should ensure their RFD programs comply with federal requirements so they can receive NARIP funding and so prohibited people have an appropriate process to seek restoration of their rights. At least thirteen states have relief programs that have not been approved.
Perhaps most critically, Congress should expand the background check system so that dangerous people cannot avoid background checks and buy guns simply by seeking sellers who are not licensed dealers. A background check is only as good as the records in the system—but the system does no good at all when prohibited purchasers can evade background checks altogether by seeking out an unlicensed seller at a gun show, online, or through a classified ad. If Congress fails to act, state legislatures should follow the lead of the 16 states that require background checks for handgun sales—and stop guns from falling into the wrong hands.
Click here to download an appendix of records reported, state laws enacted, and federal funding received by each state and the District of Columbia.