Fatal Gaps

How Missing Records in the Federal Background Check System Put Guns in the Hands of Killers

by Mayors Against Illegal Guns

November 25, 2011

At the time Mayors Against Illegal Guns published its 2011 Fatal Gaps report, millions of mental health records were missing from the background checks system, allowing prohibited purchasers to pass background checks and buy guns. In the years since, some states have taken strides to fill this gap, but hundreds of thousands of records are still missing. Fatal Gaps surveys all 50 states and reveals why states have difficulty submitting relevant records, and what Congress can do to close the fatal gaps in the system.

Executive Summary

Since its creation in 1999, the National Instant Criminal Background Check System (NICS) has blocked more than 1.9 million permit applications and gun sales to felons, the seriously mentally ill, drug abusers and other dangerous people who are prohibited by federal law from possessing firearms.

Completing the necessary paperwork for a background check takes a gun buyer mere minutes, and more than 91 percent of these electronic screens are completed instantaneously. And, amidst a polarized national debate about gun control, the background check system enjoys nearly universal public support.

Despite its relative success, NICS has serious gaps and limitations that still allow firearms to be sold to dangerous people, including some of the nation’s worst mass murderers.

The NICS database can access the names of individuals who are barred from possessing guns due to citizenship status and other prohibiting factors with relative ease. That data is regularly and efficiently shared among government and law enforcement agencies. However, for complex legal and logistical reasons discussed in this report, records about the kinds of serious mental health and drug abuse problems that disqualify people from gun ownership have proven more difficult to capture.

In 2007, Seung Hui Cho shot and killed 32 people at Virginia Tech before taking his own life. More than a year earlier, a judge had found Cho to be mentally ill—a determination that should have barred him for life from possessing a firearm. But the records documenting his profound mental illness were never submitted to NICS, and Cho was able to pass several background checks before buying the guns he used in the mass shooting.Michael Luo, “U.S. Rules Made Killer Ineligible to Purchase Gun,” New York Times, April 21, 2007.

On January 8, 2011, Jared Loughner shot and killed six people and critically wounded 13 others in Tucson, including Congresswoman Gabrielle Giffords. Media reports indicated that Loughner had a troubled past that included a drug-related arrest, an admission of drug use to the U.S. Army and suspension from community college for a pattern of disturbing behavior.See John Faherty, “Moments from a life in spiral,” The Arizona Republic, January 16, 2011 (describing 2007 arrest for possession of drug paraphernalia); “U.S. Officials Should Report Drug Use,” CBS New York, January 16, 2011 (“A military official in Washington said the Army rejected Loughner in 2008 because he failed a drug test”); Josh White, “Jared Loughner unable to enlist in Army because of drug use,” Washington Post, January 9, 2011 (reporting that Loughner was “rejected from enlistment in the U.S. Army because of issues related to history of drug abuse, military officials said Sunday”); Jacques Billeaud, “College Releases AZ Suspect’s Suspension Records,” The Associated Press, July 13, 2011 (describing school suspension). He nevertheless passed background checks and bought firearms on two separate occasions, including the Glock 19 he used in his alleged attempt to assassinate Congresswoman Giffords. News accounts suggested that Loughner’s admission of drug use should have barred him from purchasing his first gun, an assertion the government has never confirmed.James V. Grimaldi, “Reno-era policy kept Loughner off FBI list,” The Washington Post, January 19, 2011.

After the Tucson mass shooting, Mayors Against Illegal Guns conducted an investigation to discover why critical mental health and drug abuse records are missing from the NICS database. We obtained Federal Bureau of Investigation (FBI) data on the number of records states and federal agencies have shared with the system, analyzed related state and federal policies and interviewed more than 60 government officials responsible for NICS record collection and submission in 49 states and the District of Columbia.Interviews were conducted by telephone with officials from relevant state agencies in 48 states and the District of Columbia in March, April, and November 2011. A state official from South Dakota submitted responses to Mayors Against Illegal Guns’s inquiries by email. Mayors Against Illegal Guns was unable to conduct an interview with state officials who have knowledge of North Dakota’s experience with record sharing,

Based on our analysis and FBI data released on October 31, 2011, we drew the following conclusions:

Millions of records identifying seriously mentally ill people and drug abusers as prohibited purchasers are missing from the federal background check database because of lax reporting by state agencies.

  • Many state mental health records are still missing: Twenty-three states and the District of Columbia have submitted fewer than 100 mental health records to the federal database. Seventeen states have submitted fewer than ten mental health records, and four states have not submitted any mental records at all.
  • State substance abuse records are also underreported: Forty-four states have submitted fewer than ten records to the controlled substance file in the NICS Index, and 33 have not submitted any records at all. Even though federal regulations and policy establish that a failed drug test, single drug-related arrest or admission of drug use within the past year temporarily disqualify a person from possessing a gun,27 C.F.R. § 478.11 (2011) the vast majority of states are unaware that these records should be shared with NICS.
  • While still inadequate, mental health record reporting by the states has improved: From August 2010 to October 2011, the number of state-submitted mental health records in the federal background check database increased by 35.4 percent.
  • States with the highest rates of mental health record submission have typically enacted policies that require or permit reporting of records: Nine of the ten states that submitted the most mental health records per capita have adopted laws or policies that mandate or permit the sharing of mental health records with NICS, while just two of the ten states that submitted records at the lowest rates have such laws or policies.
  • States with access to federal funding tend to submit more records: From August 2010 to October 2011, the nine states that received NICS Act Record Improvement Program (NARIP) grants to improve NICS submission increased their rate of mental health record sharing by nearly twice as many records per capita as states with no federal funding.
  • Leadership makes a difference: In each state that has significantly improved at sharing records with the federal database, one or more state actors have taken the lead in identifying and surmounting the logistical, legal and political obstacles to compliance.

Federal agencies are not reporting records to NICS despite a federal law requiring all federal agencies to report “any record of any person” who is prohibited from purchasing firearms to the FBI. NICS Improvement Amendments Act of 2007, Public Law No. 110-180 (Jan. 8, 2008).

  • Federal agencies have shared very few mental health records: Fifty-two of the 61 agencies for which the FBI keeps relevant data have reported no mental health records to NICS. The vast majority of federal records were submitted by just one agency—the Department of Veterans Affairs.The dearth of records submitted by federal agencies implies widespread noncompliance with the NICS Improvement Act federal agency reporting requirements. Mayors Against Illegal Guns could not determine the volume or kind of relevant records currently held by federal agencies. The Attorney General has submitted NICS Improvement Act reports to the Senate Judiciary Committee that may explain the scope of relevant federal records, but those reports have not been made available to the public.
  • Most federal agencies have not submitted any substance abuse records: Only three federal agencies—the FBI, the U.S. Coast Guard and the Court Services and Offenders Supervision Agency (CSOSA)—have shared any substance abuse records with NICS, with the vast majority submitted by CSOSA.
  • A Clinton-era policy directive may discourage federal reporting: Federal agencies may continue to rely on a policy memorandum issued in 1994 by former Attorney General Janet Reno that instructs federal agencies not to submit certain substance abuse records to NICS.James V. Grimaldi, “Reno-era policy kept Loughner off FBI list,” The Washington Post, January 19, 2011.

Recommendations

To improve state and federal submission to the NICS database, the federal government should:

  • Enforce the law on federal agency reporting: The NICS Improvement Amendments Act of 2007 (The NICS Improvement Act) requires that federal agencies share mental health, substance abuse and other records that prohibit a person from owning a gun, but few agencies comply. The President should issue an executive order requiring all federal agency heads to certify twice annually, in writing, to the U.S. Attorney General that their agency has submitted all relevant records to NICS.
  • Increase incentives and penalties for state compliance: The modest financial incentives and penalties the federal government wields under the NICS Improvement Act have not prompted states to fully report. Congress should significantly increase both the federal funding available to assist record sharing and the penalties for states that do not comply, and tie them to far more ambitious reporting targets. The Fix Gun Checks Act, introduced by Sen. Charles Schumer and Rep. Carolyn McCarthy as S.436 and H.R.1781 in the 112th Congress, would make these improvements.
  • Retain the names of prohibited purchasers who fail background checks: The FBI should preserve the names of all individuals who have failed a gun background check in its National Crime Information Center (NCIC) database. This would save the FBI valuable time and resources by avoiding a full NICS investigation should those people attempt to buy another gun. In addition, retaining these names in NCIC would alert local and state law enforcement when a person prohibited from possessing a gun attempts to buy one.
  • Issue clear guidance on what mental health and drug abuse records should be submitted to NICS: Many states are unaware of what mental health and drug abuse records should be sent to NICS. The FBI currently holds periodic regional conferences on record sharing for state officials, and it has sent some written guidance to state attorneys general. Nevertheless, many state officials reported that they do not have a clear understanding of which records should be shared. The need for clear guidance is particularly acute for mental health records that are held by entities other than courts, and for substance abuse records that do not involve arrests. The FBI and the ATF should issue clear, complete guidance and make it available online.
  • Help states that already have record repositories to transfer their records to NICS: Many states already have centralized repositories with tens or hundreds of thousands of mental health records that should be shared with the federal database. The FBI should work more aggressively with these states to overcome the logistical, technical or other hurdles to sharing these records.
  • Help states develop qualified “relief from disability” programs: Many states are unable to get NARIP grants to improve their record sharing because they have difficulty enacting the gun rights restoration program that federal law requires. The ATF should develop a set of model bills that satisfy federal requirements, while insuring that a petitioner’s right to buy a gun may be restored only after his or her mental health records are thoroughly reviewed by qualified experts. The Justice Department should make those materials and other guidance available to state agencies and policymakers.
  • Fully fund NICS programs: While federal NARIP grants are the largest source of funding to support state record sharing, Congress has appropriated only 4.96 percent of the amount authorized for the grant from FY2009 through FY2010. The federal government should increase funding for the program.

Introduction

In 1968, after the assassinations of Martin Luther King, Jr. and Robert F. Kennedy, Congress enacted the first federal laws to prohibit access to firearms by certain categories of dangerous people, including convicted felons, the seriously mentally ill and drug abusers.“America’s longtime love-hate affair with guns,” Chattanooga Times Free Press, November 6, 2011.

Twenty-five years later, Congress passed the Brady Bill, named for President Reagan’s press secretary James Brady, who was shot and critically wounded when a mentally unstable man attempted to assassinate the President.Andrew Glass, “Brady Bill signed into law, Nov. 30, 1993,” Politico, November 30, 2009. The Brady Bill established the National Instant Criminal Background Check System (NICS) and required prospective buyers at federally licensed firearms dealers to pass a background check before purchasing a gun.

Today, amidst a polarized national debate about gun control, the background check system enjoys nearly universal public support.Mayors Against Illegal Guns, “In aftermath of Tucson shooting, new bipartisan poll shows Americans - including gun owners - support tougher laws to keep firearms out of dangerous hands,” January 18, 2011, available at http://mayorsagainstillegalguns.org/downloads/pdf/ advisory_6_arizona_poll.pdf. Polling conducted jointly by Momentum Analysis, a polling firm with Democratic clients, and American Viewpoint, a polling firm with Republican clients. The firms surveyed 1,003 registered voters who are demographically representative of registered voters across the country. Between 1999 and 2009, NICS processed roughly 100 million background checks and blocked an estimated 1.9 million permit applications and gun sales to people prohibited by law from possessing guns.See U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Background Checks for Firearm Transfers, 2009, available at http://bjs.ojp.usdoj.gov/content/pub/html/bcft/2009/bcft09st.cfm Completing the necessary paperwork takes the buyer mere minutes, and more than 91 percent of these electronic checks are resolved instantaneously.Id.

Despite its relative success, NICS has serious gaps and limitations that still allow firearms to be sold to dangerous people, including some of the nation’s worst mass murderers.

The NICS database can access the names of individuals who are barred from possessing guns because of citizenship status and other prohibiting factors relatively easily. That data is regularly and efficiently shared among government and law enforcement agencies. But, for complex legal and logistical reasons discussed beloe, records on serious mental health and drug abuse problems that also disqualify people from gun ownership have proven more difficult to capture.

In 2007, Seung Hui Cho shot and killed 32 people at Virginia Tech before taking his own life. Two years earlier, a judge had found Cho to be mentally ill—a determination that should have barred him for life under federal law from possessing a firearm. But the records documenting his profound mental illness were never submitted to NICS, and Cho was able to pass several background checks before buying the guns he used in the mass shooting.Michael Luo, “U.S. Rules Made Killer Ineligible to Purchase Gun,” New York Times, April 21, 2007

In response to the Virginia Tech shooting, Congress unanimously passed the NICS Improvement Amendments Act of 2007 (the NICS Improvement Act), which was intended to increase reporting of records into the system.NICS Improvement Amendments Act of 2007, Public Law No. 110-180 (Jan. 8, 2008). It requires all federal agencies to report relevant records to NICS on a quarterly basis, and requires the U.S. Attorney General to report on federal and state compliance every year in a report to Congress.Id. § 101(a)(4).

The law was also intended to improve reporting by states. Because the Tenth Amendment to the U.S. Constitution prevents the federal government from compelling state agencies to submit records,See U.S. v. Printz, 521 U.S. 898 (1997) (holding that the interim provisions of the Brady Bill, which required states to perform firearms background checks until the federal NICS system was operative, were unconstitutional under the 10th Amendment). Note that Printz had little practical effect on the implementation of the Brady Bill because most state and local law enforcement agencies continued to voluntarily comply with the interim plan while the federal NICS system was under development. the NICS Improvement Act created a system of financial incentives to encourage robust state reporting.See South Dakota v. Dole, 483 U.S. 203 (1987) (upholding the constitutionality of the National Minimum Drinking Age Act, which discourages states from lowering the legal drinking age by withholding 5% of federal highway funding from states that do not comply).

Under this new law, states that share at least 90 percent of their records on prohibited persons with NICS receive a waiver of the 10 percent state matching requirement for National Criminal History Improvement Program (NCHIP) grants, which are awarded to expand criminal justice information technology and communications.NICS Improvement Amendments Act of 2007, Public Law No. 110-180 § 102 (Jan. 8, 2008). States that fail to make adequate progress towards the 90-percent records goal face the possibility of slight reductions in their Byrne Justice Assistance Grants (JAG).Id. JAG Grants totaled $302 million in FY2010. Through FY2010, states are not subject to penalties. In FY11 & 12, states may be subject to a 3% reduction unless 50% of records are available to NICS; in FY13-17, states may be subject to a 4% reduction unless 70% of records are available to NICS; and in FY18 and beyond states are subject to a 5% reduction unless 90% of records are available to NICS. These penalties may be reduced or waived by the Attorney General.

In addition to these incentives, the NICS Improvement Act also created the NICS Act Record Improvement Program (NARIP) to provide direct financial assistance to states for improving their infrastructure for collecting and submitting relevant records to NICS. NARIP is the largest source of funding to support state efforts to improve record reporting; the program awarded more than $39.5 million to states between 2009 and 2011. NICS Improvement Amendments Act of 2007, Public Law No. 110-180 § 103 (Jan. 8, 2008). The statute provides that grants may be awarded to: (1) create electronic systems which provide accurate and up-to-date information for NICS; (2) assist States in establishing or enhancing their own capacities to perform NICS background checks; (3) supply accurate and timely information to the Attorney General concerning final dispositions of criminal records to databases accessed by NICS; (4) supply accurate and timely information to the Attorney General concerning the identity of prohibited purchasers to be used by the FBI to conduct NICS background checks; (5) supply accurate and timely court orders and records of misdemeanor crimes of domestic violence for inclusion in Federal and State law enforcement databases used to conduct NICS background checks; (6) collect and analyze data needed to demonstrate levels of State compliance with the NICS Improvement Act; and (7) maintain the relief from disabilities program (though only 3-10% of each grant may be used for this purpose). To qualify for NARIP grants, states must provide the Justice Department with a “reasonable estimate” of the number of state records on federally prohibited gun purchasers that should be submitted to the database. States must also enact a “relief from disability” program—also known as a gun rights restoration law—that establishes a procedure by which people who are ineligible for gun ownership due to mental illness can regain their rights if they no longer pose a danger to the public.Id. § 105.

The number of records entered into NICS has increased significantly since the law was signed in January 2008. As of December 2010, NICS officials were able to access nearly 70 million records when conducting a background check, including more than 1.1 million records identifying people who are prohibited for reasons of mental health. See U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division, 2010 NICS Operations Report, available at http://www.fbi.gov/about-us/cjis/nics/reports/2010-operations-report/2010-operations-report-pdf/view. By October 2011, the number of mental health records in the NICS database had risen to more than 1.3 million.U.S. Department of Justice, Federal Bureau of Investigation, “Active Records in the NICS Index as of Oct. 31, 2011,” available at http://www.fbi.gov/about-us/cjis/nics/reports/110711nics-index.pdf.

As the number of records in NICS has increased, so has the number of attempted firearms purchases that have been denied because of the mental health status of the buyer. In 2006, for example, only 405 gun sales were declined for mental health reasons;Note that this does not include denials for mental health reasons by “Point of Contact” states that designate state agencies to conduct the NICS background check rather than relying on the FBI. See U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division, 2006 NICS Operations Report, available at http://www.fbi.gov/about-us/cjis/nics/reports/2006-operations-report/ops_report_2006.pdf. in 2010, that number increased to 6,103.U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division, 2010 NICS Operations Report, available at http://www.fbi.gov/about-us/cjis/nics/reports/2010-operationsreport/2010-operations-report-pdf/view.

Despite the progress prompted by Virginia Tech, another mass shooting less than four years later demonstrated that dangerous people are still able to pass background checks and buy firearms, to disastrous results.

On January 8, 2011, Jared Loughner shot and killed six people and critically wounded 13 others in Tucson, including Congresswoman Gabrielle Giffords. Media reports indicated that Loughner had a troubled past that included a drug-related arrest, an admission of drug use to the U.S. Army and suspension from community college for a pattern of disturbing behavior.See John Faherty, “Moments from a life in spiral,” The Arizona Republic, January 16, 2011 (describing 2007 arrest for possession of drug paraphernalia); “U.S. Officials Should Report Drug Use,” CBS New York, January 16, 2011 (“A military official in Washington said the Army rejected Loughner in 2008 because he failed a drug test.”); Josh White, “Jared Loughner unable to enlist in Army because of drug use,” Washington Post, January 9, 2011 (reporting that Loughner was “rejected from enlistment in the U.S. Army because of issues related to history of drug abuse, military officials said Sunday.”); Jacques Billeaud, “College Releases AZ Suspect’s Suspension Records,” The Associated Press, July 13, 2011 (describing school suspension). He nevertheless passed background checks and bought firearms on two separate occasions, including the Glock 19 he used in his alleged attempt to assassinate Congresswoman Giffords. News accounts suggested that Loughner’s admission of drug use should have barred him from purchasing his first gun, an assertion the government has never confirmed.James V. Grimaldi, “Reno-era policy kept Loughner off FBI list,” The Washington Post, January 19, 2011.

After the Tucson shooting, Mayors Against Illegal Guns attorneys conducted an investigation to discover what records are missing from NICS, and why. We obtained previously unreleased FBI data on the number of records states and federal agencies have shared with the system; analyzed related state and federal policies; and interviewed more than 60 government officials responsible for NICS record collection and submission in 49 states and the District of Columbia.See note 4

We reached the following conclusions:

Millions of records identifying seriously mentally ill people and drug abusers as prohibited gun purchasers are still missing from the federal background check database because of lax reporting by state agencies.

  • Many state mental health records are still missing: Twenty-three states and the District of Columbia have submitted fewer than 100 mental health records to the federal database. Seventeen states have submitted fewer than ten mental health records, and four states have not submitted any records.
  • State substance abuse records are also underreported: Forty-four states have submitted fewer than ten records to the controlled substance file in the NICS Index, and 33 have not submitted any records. Even though federal regulations establish that a failed drug test, single drug-related arrest or admission of drug use within the past year temporarily disqualify a person from possessing a gun,27 C.F.R. § 478.11 (2011). the vast majority of states are unaware that these records should be sent to NICS.
  • While still inadequate, mental health record reporting by the states has improved: From August 31, 2010 to October 31, 2011, the number of state-submitted mental health records in the federal background check database increased by 35.4 percent, from 864,962 to 1,171,029.

Federal agencies are not reporting records to NICS, even though the NICS Improvement Act requires all federal agencies to provide “any record of any person” who is prohibited from purchasing firearms to the FBI on at least a quarterly basis.NICS Improvement Amendments Act of 2007, Public Law No. 110-180 (Jan. 8, 2008).

  • Federal agencies have shared very few mental health records: Fifty-two of 61 federal agencies listed in the FBI data obtained by Mayors Against Illegal Guns have reported zero mental health records to NICS. Federal agency reporting of mental health records increased by ten percent between March 2011In this report, baseline comparison data for record reporting by states is from August 31, 2010. This data source was not available for record reporting by federal agencies. Instead, the coalition has utilized baseline data from March 31, 2011. and October 2011, to a combined total of 143,579, the vast majority of which were submitted by one agency, the Department of Veterans Affairs.The dearth of records submitted by federal agencies implies widespread noncompliance with the NICS Improvement Act federal agency reporting requirements. Mayors Against Illegal Guns was unable to determine the volume or kind of relevant records currently held by federal agencies. The Attorney General has submitted NICS Improvement Act reports to the Senate Judiciary Committee that may explain the scope of relevant federal records, but those reports have not been made available to the public.
  • Most federal agencies have not submitted any relevant substance abuse records to NICS: According to the latest data obtained from the FBI, only three federal agencies—the FBI, the U.S. Coast Guard, and the Court Services and Offenders Supervision Agency (CSOSA), the probation and parole services agency for the District of Columbia—have submitted any substance abuse records. Of the combined total of 12,023 federal controlled substance records in NICS, all but 1,391 came from CSOSA. The vast majority of federal agencies, including the Drug Enforcement Administration, the Department of Defense and the Air Force, Army, Navy and Marine Corps, have not submitted a single substance abuse record.

The remainder of this report explores the complex set of factors that complicate federal and state sharing of records with the NICS system, identifies the reasons some states have experienced significantly more success in sharing those records than others, and makes recommendations for reform.

How the Federal Background Check System Should Work

The National Instant Criminal Background Check System, administered by the FBI, is designed to screen prospective gun purchasers to make sure they are not prohibited from purchasing or possessing a firearm.

Federal law prohibits ten categories of people from owning a gun: felons, people under indictment for a felony, fugitives, drug abusers, individuals who have been adjudicated as a mental defective or who have been committed to a mental institution, illegal aliens, people who were dishonorably discharged from the military, people who have renounced their U.S. citizenship, people who have been convicted of domestic violence misdemeanors and people who are subject to certain domestic violence protective orders.18 U.S.C. § 922(g)(1)-(9), (n).

These federal prohibitors define the baseline standard for legal gun possession in the United States, though some states have enacted additional restrictions—for example, limiting ownership to people over the age of 21.

Every gun purchase from a federally licensed firearms dealer is subject to a background check. At the time of an attempted purchase, the dealer will run a background check on the purchaser by phoning the NICS call center or submitting the buyer’s information to NICS through its web-based E-Check system.Only purchasers who attempt to buy firearms from federally licensed firearms dealers are required to undergo a background check. Approximately 40% of gun sales in the United States are private sales, which are not subject to mandatory background checks under current law. Some states require that background checks be conducted in other settings as well. See Philip J. Cook & Jens Ludwig, U.S. Department of Justice, National Institute of Justice Research in Brief, Guns in America: National Survey on Private Ownership and Use of Firearms, May 1997, available at http://www.ncjrs.org/pdffiles/165476.pdf. Phone calls to NICS are answered within seven seconds, on average, and resolved immediately while the dealer is on the phone more than 90 percent of the time.See U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division, 2010 NICS Operations Report, available at http://www.fbi.gov/about-us/cjis/nics/reports/2010-operations-report/2010-operations-report-pdf/view. In 2010, the specific decision rate averaged at 91.29 percent, and the average time a caller waits for their call to be answered is 6.37 seconds. The investigator will then tell the dealer to allow the sale, deny the sale or wait three days while NICS personnel make a final determination.When a prohibited purchaser fails a background check, dealers are not told the specific reason the buyer’s attempted purchase was declined. If a sale is delayed and the NICS investigator cannot resolve the investigation within three days, the purchase is allowed to proceed, though dealers are not obligated to the sell the gun in that circumstance. Neither NICS nor the dealer retains any record of the search.

In 13 states known as point-of-contact (POC) states, the state implements and maintains its own background check system. Instead of contacting the federal system directly, federally licensed firearms dealers in POC states contact a designated state agency to electronically access NICS and run a background check in the same manner described above.The 13 full POC states are California; Colorado; Connecticut; Florida; Hawaii; Illinois; Nevada; New Jersey; Oregon; Pennsylvania; Tennessee; Utah and Virginia. See Department of Justice, Federal Bureau of Investigation, National Instant Criminal Background Check System, NICS Point of Contact States & Territories, available at http://www.fbi.gov/aboutus/cjis/nics/poc. An additional eight states are “partial-POCs” that designate a state agency to electronically access NICS for some background checks, typically for handgun and/or handgun permit checks, but allow NICS to conduct other background checks for the state.The eight partial POC states are Iowa; Maryland; Michigan; Nebraska; New Hampshire; North Carolina; Washington; and Wisconsin. See Department of Justice, Federal Bureau of Investigation, National Instant Criminal Background Check System, NICS Point of Contact States & Territories, available at http://www.fbi.gov/about-us/cjis/nics/poc.

The NICS background check involves a search of three separate databases: the National Crime Information Center (NCIC), the Interstate Identification Index (III) and the NICS Index. NCIC and III are databases used by law enforcement for a wide range of investigative purposes, while the NICS Index was created specifically and exclusively for gun purchase background checks.

NCIC is a criminal record database accessible to federal, state and local law enforcement personnel 24 hours a day, 365 days a year. The database is comprised of 19 separate files, containing a total of more than 15 million records as of December 31, 2010.U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division, 2010 NICS Operations Report, available at http://www.fbi.gov/about-us/cjis/nics/reports/2010-operationsreport/2010-operations-report-pdf/view. Seven of these files relate to stolen property, and 12 relate to individuals who fall into the following categories: Supervised Release; National Sex Offender Registry; Foreign Fugitive; Immigration Violator; Missing Person; Protection Order; Unidentified Person; U.S. Secret Service Protective; Gang; Known or Appropriately Suspected Terrorist; Wanted Person; and Identity Theft Files. From the time the system was established through December 31, 2010, NICS had searched more than 4.8 million NCIC records in the course of conducting background checks.Id.

According to a former ATF official, the system would operate more effectively if NCIC also contained a separate file listing the names of individuals who have failed background checks and were denied gun purchases. If the names of denied persons were listed in NCIC, the FBI would not need to conduct a new, comprehensive NICS investigation if these individuals make another attempt to buy a gun, which would save time and resources. In addition, entering these names into NCIC would make the fact that a prohibited purchaser had attempted to purchase a firearm available to state and local law enforcement.

The Interstate Identification Index (III) contains criminal history records submitted by states to the FBI. As of December 31, 2010, NICS had searched more than 58.5 million records in the III.Id. According to the FBI, however, only 36 states submit III records.http://www.fbi.gov/about-us/cjis/cc/quick-links-to-maps/IIImaps. According to the Department of Justice, “If an agency does not fingerprint the individual or does not submit the fingerprints to the state, the arrest/conviction information will not be in the database.” Some of the state officials Mayors Against Illegal Guns interviewed reported that some conviction records are not being sent into III, particularly from states where arrest records do not include a fingerprint card, a subject not addressed by this report.

The NICS Index was created for the sole purpose of housing information on individuals prohibited by federal law from purchasing a gun. Although some of the information may be duplicative, most of the records in the NICS Index are not available in III or NCIC. For example, a record of a court-ordered involuntary commitment for mental health treatment is not a criminal arrest or conviction record that would be submitted to III. But because it is dispositive evidence that a person is prohibited from purchasing a gun, it should be reported to the NICS Index. A conviction for a misdemeanor crime of domestic violence, on the other hand, may appropriately be submitted to both III and the NICS Index. The extent to which such records are doublecounted depends on whether the reporting agency has chosen to double-flag such records and to submit them to both the NICS Index and III. As of October 31, 2011, the NICS Index contained more than 7.2 million records, including more than 1.3 million records in the mental health file and 13,415 records in the controlled substance file.See Federal Bureau of Investigation, Criminal Justice Information Services Division, Active Records in the NICS Index as of Oct. 31, 2011, available at http://www.fbi.gov/about-us/cjis/nics/reports/110711nics-index.pdf.

It must be noted, however, that even if the NICS database were complete, federal law only requires background checks to be conducted by federally licensed dealers. About 40 percent of U.S. gun sales are conducted by unlicensed “private sellers.”See Philip J. Cook & Jens Ludwig, U.S. Department of Justice, National Institute of Justice Research in Brief, Guns in America: National Survey on Private Ownership and Use of Firearms, May 1997, available at http://www.ncjrs.org/pdffiles/165476.pdf.Until this private sale loophole is closed, many prohibited purchasers will continue to escape any background check at all.See Bureau of Alcohol, Tobacco, and Firearms, Gun Shows, Brady Checks, and Crime Gun Traces, January 1999, available at: http://www.atf.gov/publications/download/treas/treas-gun-shows-brady-checks-andcrime-gun-traces.pdf. According to the ATF, 34.4 percent of the investigations (108 of 314) had at least one firearm associated with a gun show investigation recovered in a crime.

Submission of Mental Health and Drug Abuse Records into NICS

Four years after the mass shooting at Virginia Tech, the number of federal and state mental health records in the NICS index has grown by roughly one million records. Nevertheless, an estimated 1.5 million records or more remain missing from the federal system.U.S. Government Accountability Office, Gun Control: Options for Improving the National Instant Criminal Background Check System, March 2000, available at http://www.gao.gov/archive/2000/gg00056.pdf. The report includes an estimate that 2.7 million persons are prohibited from purchasing guns in the United States due to involuntary mental health commitments.

Twenty-three states and the District of Columbia have submitted fewer than 100 mental health records to NICS as of October 31, 2011. Seventeen of these states have submitted fewer than ten records, and four of these states have submitted no records.

The reasons for noncompliance are widely disparate and complex. Even among states with relatively successful record submission programs, there is great variation in both the number and kind of mental health records being submitted to NICS. But a few common obstacles—privacy issues, logistical problems, lack of funding and lack of leadership—impair efforts in many states.

States that have significantly improved their performance also have at least two attributes in common: the ability to commit funding to their efforts and the political leadership to succeed, most often driven by one or more champions.

To understand the scope of the problem, Mayors Against Illegal Guns obtained data from the FBI about state record submissions to the NICS Index. Tables 1 and 2 on the following page show the number of records sent by each state to the mental health file of the NICS Index as of October 31, 2011. The charts include the total number of record submissions and, to control for population, the number of record submissions per 100,000 residents of each state.Numbers were calculated by dividing the cumulative number of state mental health record submissions by the population of that state, then multiplying by 100,000. The result is a state’s cumulative record submission total per 100,000 inhabitants. 2010 U.S. Census Data, available at http://2010.census.gov/2010census/data/. These charts also note which states have passed laws or policies requiring or permitting the sharing of mental health records with NICS—an issue discussed later in this report in the section entitled “Issues Affecting State Submission of Mental Health Records.”

Mayors Against Illegal Guns also compared record-sharing data from October 31, 2011 with data from August 31, 2010 to determine which states have increased the number of mental health records they shared with NICS over the past 14 months. Tables 3 and 4 below display the change in the number of records submitted, and the change per 100,000 residents to control for each state’s population.

States without laws/policies related to record sharing in red below.

According to these data, between August 31, 2010 and October 31, 2011:

  • On average, each state increased its mental health record submissions by an additional 6,001 records, or 99.1 records per 100,000 residents.
  • Five states increased submissions by more than 20,000 records: Texas, Washington, California, Virginia and Missouri.
  • When controlling for population, the five states with the highest rate of submission as of August 31, 2010—Virginia, Michigan, New York, California and Washington—were still the five highest performing states as of October 31, 2011.

Despite improvement by some states, almost half of the states have submitted 100 or fewer mental health records to NICS.

Issues Affecting State Submission of Mental Health Records

To understand why so many states have failed to submit mental health records to NICS, Mayors Against Illegal Guns reviewed record sharing laws in each state and conducted interviews with more than 60 officials from state agencies responsible for record sharing. Our staff agreed to keep the identity of interviewees confidential. Several common themes appear to explain the variation in state success at reporting mental health records, and two factors explain why some states have significantly improved their reporting rates.

Variation in State Reporting Statutes

Despite the increased urgency to report records in the wake of the Virginia Tech shooting, many states have faced legal barriers to sharing sensitive mental health information with NICS. Some states have not provided their agencies with the authority to share mental health records with the federal government, and other states have faced state privacy laws barring the sharing of such records.Some states may not be reporting mental health records because of state privacy laws, a claim our attorneys heard from some state officials. The federal Health Insurance Information Portability and Privacy Act (HIPAA) Public Law No. 110-180 (August 21, 1996) currently sets the minimum privacy standards under federal law for the sharing of medical information, and states can and have enacted laws that afford broader protections. If Congress chose to do so, it could craft narrowly tailored exceptions to HIPAA and related federal privacy statutes to clarify that state privacy laws are not a barrier to compliance with NICS reporting requirements with respect to mental health status and drug abuse. In fact, there have been recent congressional efforts to alter the privacy standard in different versions of the Health Information Technology Promotion Act. See H.R. 4157, 109th Cong.; H.R. 5885, 110th Cong.; H.R. 1031, 111th Cong. To solve either or both problems, 28 states have passed laws requiring or permitting relevant mental health records to be submitted to NICS. As a result, there is a strong association between higher rates of mental health record reporting and the enactment of state laws or policies that require or permit agencies to report their records.

Before Virginia Tech, few states had implemented legal reforms to facilitate reporting. At the time of the shootings, only four states had laws that required agencies to share relevant mental health records with NICS: Alabama (2004),Alabama’s law required sharing of records, but contained a very restrictive definition of records that qualified. See discussion of Ala. Code § 22-52-10.8 (2011), infra. Colorado (2002),Colo. Rev. Stat. §§ 13-5-142, 13-9-123 (2011) Connecticut (2005)Conn. Gen. Stat. § 29-36l(d)(2) (2011). and Georgia (2005).Ga. Code Ann. § 16-11-172 (2011). A fifth state, Florida (2006),Fl. Stat. § 790.065 (2008). permitted sharing of mental health records with NICS, but did not require it.

In the wake of Virginia Tech, 18 states changed their laws to require that mental health records be sent to NICS: Delaware (2011),Del. Code Ann. tit. 11 § 1448A (2011). Idaho (2010),Idaho Code Ann. §§ 66-356, 67-3003 (2011). Illinois (2008),430 Ill. Comp. Stat. 65/3.1(e) (2011). Indiana (2009),Ind. Code §§ 11-10-4-3, 12-26-6-8, 12-26-75, 33-24-6-3, 35-36-2-4, 35-36-2- 5, 35-36-3-1 (2011). Iowa (2011),Iowa Code § 724.31 (2011). Kansas (2007),Kan. Stat. Ann. § 75-7c25 (2011). Kentucky (2011),Ky. Rev. Stat. Ann. § 237.108 (2011). Maine (2008),Me. Rev. Stat. Ann. tit. 25, § 1541 (2011). Minnesota (2010),Minn. Stat. § 253B.24 (2010). Nebraska (2011),Neb. Laws § 512 (2011). Nevada (2010),Nev. Rev. Stat. § 283.210 (2011). North Carolina (2010),N.C. Gen. Stat. § 122C-54 (2011). Oregon (2009),Or. Rev. Stat. §§ 181.740, 426.160(1) (2009). Tennessee (2010),Tenn. Code Ann. § 16-10-213 (2011). Texas (2009),Tex. Gov. Code Ann. §§ 411.052; 411.0521 (2011). Virginia (2008),Va. Code Ann. § 37.2-819 (2011). Washington (2009)Wash. Rev. Code § 9.41.047(1)(b) (2011). and Wisconsin (2010).Wis. Stat. §§ 51.20(13)(cv)(4); 175.35(2g)(d)(1) (2011). An additional four states changed their laws to permit sharing of mental health records with NICS: Missouri (2008),Mo. Rev. Stat. § 630.140 (2011). New Jersey (2010),N.J. Stat. Ann. § 30:4-24.3 (2011). New York (2008)2008 N.Y. Laws 491, codified at N.Y. Mental Hyg. §§ 7.09(j), 13.09(g), 31.11(5), 33.13(b), (c) (2011); N.Y. Jud. Ct. Acts § 212(q) (2011). and West Virginia (2008).W. Va. Code § 61-71-3 (2011) California (2008) also entered into a memorandum of understanding with the FBI to facilitate record sharing.

For the most part, these laws have been successful in helping states overcome the legal barriers to compliance. Several of these states—most notably New York, Texas, Virginia and Washington—made dramatic improvements in the number of mental health records shared since passing their statutes. New York increased the number of records submitted from one to 160,092; Texas from zero to 174,802; Virginia from 78,478 to 161,334; and Washington from 15 to 79,651.

Of the ten states with the greatest number of mental health records in the NICS index, eight have enacted relevant laws or policies. Among the ten states with the least number of mental health records in the NICS index, eight have not taken these affirmative steps.

The same is true when controlling for population: of the ten states with the highest number of records submitted per 100,000 inhabitants, nine have enacted relevant laws or policies. Of the ten states with the lowest number of submissions per 100,000 residents, eight have not. Moreover, the states with reporting laws and policies have submitted, on average, 460.0 records per 100,000 residents, while the remaining states have submitted just 167.5. The national average is 379.3.

Among the ten states with the greatest increase in records submitted between August 31, 2010 and October 31, 2011, nine have laws or policies requiring or permitting the sharing of mental health data with NICS.

The same is true when controlling for population: of the ten states that registered the greatest increase in rate of record submission during this period, nine have enacted relevant laws or policies.

But even states that have passed laws requiring record sharing face a host of complications in trying to fully comply, and variations between state statutes may explain some of the disparity in record reporting. States have made different decisions about what constitutes having been “committed to a mental institution” under federal law. Different state laws define relevant records differently, and state officials charged with implementing record-sharing statutes interpret the requirements differently, leading to further variation in state reporting.

For example, Alabama changed its law in 2004 to require that mental health records be sent to NICS, but it defined relevant records so narrowly that only 243 records have been submitted. Under the Alabama definition, records need only be submitted when an involuntary commitment ordered by a court is based on evidence from law enforcement that the individual has “shown a history of inappropriate use of firearms or poses a threat to use firearms inappropriately.”Ala. Code § 22-52-10.8 (2011). State officials have interpreted this standard to apply only to evidence that has been presented in open court about a person’s history of misuse of a gun or likelihood to use a gun inappropriately—a standard that falls far short of the baseline federal law that prohibits the seriously mentally ill from possessing gun, regardless of their past history with firearms. As a result, it is likely that prohibited individuals in Alabama are slipping through the cracks and passing gun background checks.

In Arkansas, the record-sharing statute requires submission of records of any involuntary commitment of 45 days or more. In Maine, which had submitted only 35 records as of October 31, 2011, a state official attributed some of the reporting delay to a disagreement between the Department of Public Safety and the legislature as to what records should be submitted. According to the official, the legislature intended to allow sharing only records of involuntary commitments for longer than 72 hours, while the Department of Public Safety contends that shorter periods of involuntary commitment also trigger the federal prohibition. Apparently this dispute has stalled submissions rates, and Maine has made little progress since passing its law in 2008. And in Utah, an official reported that the Bureau of Criminal Identification takes the position that it does not have the legal authority to determine who is prohibited under federal law, so it only submits records when it is absolutely clear from the court record that a person is prohibited for mental health reasons. Only 109 mental health records from Utah have been sent to NICS.

States have also made inconsistent determinations about who must send records to NICS. At least 13 states and the District of Columbia take the view that only mental health records held by courts are relevant to firearms possession and should be submitted to NICS. Many other states were unclear about whether their courts held all relevant mental health records or whether mental health providers should also be submitting records.

Existence of a Centralized State Record Database

States that already maintain their own state repository of mental health records may face an additional set of challenges. Many of these states are point-of-contact (POC) states, which designate state agencies to run background checks for federally licensed dealers instead of contacting NICS to do so on their behalf. Even though these states maintain their own databases for background checks, it is still vital that mental health records are reported to NICS in case prohibited individuals move to a different state and attempt to buy a gun.

States such as California, Illinois, Virginia and Washington were once slow to submit mental health records because of the difficulty in disaggregating records that are relevant to federal restrictions on firearms purchases from those records that are relevant to state restrictions, according to officials in these states. California overcame this hurdle by using National Criminal History Improvement Program (NCHIP) grants to help fund the work to disaggregate records. Some states have failed to share the records in their databases, perhaps due to state privacy laws or confusion about how to appropriately differentiate certain records. For example, Pennsylvania has still submitted just one mental health record to NICS despite the fact that it has thousands of mental health records in its state database.Dana DiFilippo, “Report: Database used in gun background checks not up to date,” The Philadelphia Daily News, January 18, 2011.

The existence of a centralized state repository may also complicate a state’s ability to provide a mental health records estimate to NICS, which the NICS Improvement Act requires as a prerequisite for NARIP funding. For example, Maryland has been unable to qualify for federal funding because it cannot disaggregate its records and arrive at a reasonable records estimate.

Lack of Accountability for Noncompliance

Even among states that have been relatively successful at submitting mental health records to NICS, lack of accountability for reporting procedures has prevented many relevant records from being submitted to NICS. For example, Connecticut recordsharing procedures require the Connecticut Department of Mental Health & Addiction Services to conduct a daily review of its records and send the name, date of birth and social security number of any person who has been involuntarily committed to the Connecticut Department of Public Safety, which then sends the records to NICS. But there are no provisions for auditing the Department of Mental Health to ensure compliance.

Similarly, in Arizona, relevant mental health records are held by the clerks of each county court, who are required by a 2002 state law to share certain records with the Department of Public Safety. Even after the Department of Public Safety sent letters to each of the 15 county clerks requesting relevant records, three clerks have not submitted relevant records, according to an Arizona state official. But even among those clerks who comply, the Department has no way of ensuring that all relevant records do get entered. The Department makes population-based estimates to gauge compliance, but there is no mechanism to verify the number of records held or to compel county clerks to submit all relevant records.

Federal Funding and Mental Health Record Reporting

NICS Act Record Improvement Program (NARIP) grants are the largest funding source to support record sharing with NICS. The NICS Improvement Act of 2007 authorized the Attorney General to grant up to $187,500,000 in FY2009 and $375,000,000 in FY2010 and FY2011 to states to help with record sharing.NICS Improvement Amendments Act of 2007, Public Law No. 110-180 § 103 (Jan. 8, 2008). Only a small fraction of this authorized amount—4.96 percent—has been appropriated, however, by Congress.William J. Krouse, “Gun Control Legislation,” Congressional Research Service, June 9, 2011, available at http://www.scribd.com/doc/61773304/29/Table-7-NICS-Improvement-Authorizations-andAppropriations-under-P-L-110-180.

Through FY2010, just nine states had received NARIP grants.Recently awarded FY2011 NARIP grants are not included in this analysis; it is unlikely that sufficient time has passed for these grants to affect reporting. U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, NICS Act Record Improvement Program (NARIP) Awards, available at http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=491#funding. In the past 14 months, these nine states increased their rates of mental health record submission by an average of 142.3 records per 100,000 residents, or nearly double the rate of increase—78.8 records per 100,000 residents—submitted by states that did not receive grants. The rate of increase for NARIP recipients also far exceeded the overall national average of 99.1 records per 100,000 residents.

Still, the full impact of FY2010 grant funding is not yet known. According to officials in three states that received FY2010 NARIP grants but are not yet reporting many mental health records—Idaho (no records), Oregon (three records) and New Jersey (15 records)—the grants are funding projects to improve reporting and, for at least Idaho and New Jersey, will likely lead to the submission of thousands of records. Both of those states are using their NARIP grant money to create a fully automated system for submitting mental health records. An Idaho official told Mayors Against Illegal Guns attorneys in November 2011 that the state’s system will go live in the next few months, and a New Jersey official reported that their system is expected to be up and running by the spring of 2012.

The vast majority of states have been unable to obtain NARIP grants, principally because they do not have a sufficient “relief from disabilities” program, otherwise known as a gun rights restoration law. In exchange for its support for the NICS Improvement Act, the National Rifle Association (NRA) reportedly insisted that the bill require, as a prerequisite to obtaining funding, that states create a procedure through which individuals can petition to have their mental health records removed from the NICS Index and have their gun rights restored.NICS Improvement Amendments Act of 2007, Public Law No. 110-180 § 105 (Jan. 8, 2008); Michael Luo, “Some with Histories of Mental Illness Petition to Get Their Gun Rights Back,” The New York Times, July 2, 2011. The Justice Department must approve these programs. If a state’s program is determined to be inadequate, the state is declared ineligible for NARIP monies and sent back to the legislative drawing board.

At least 22 states have successfully enacted gun rights restoration laws.An investigation by the New York Times suggested that states that have passed gun rights restoration laws are seeing troubling trends in the way they are administered. See Michael Luo, “Some with Histories of Mental Illness Petition to Get Their Gun Rights Back,” The New York Times, July 2, 2011. Ten others have enacted these programs, but half of those laws do not appear to have been approved by the Justice Department, and have been found to be inadequate.

In every state where a gun rights restoration law was rejected by the Justice Department, state legislators had drafted laws without asking for input from the FBI or the ATF. For example, Indiana officials report that their restoration law was ruled ineligible because it used imprecise terms, such as “handgun” instead of “firearm.” The Indiana legislature is now considering a bill that would correct these errors. Similarly, Iowa passed a law in 2010, but DOJ deemed it insufficient because it applied only prospectively. With drafting help from representatives of NICS and the NRA, the state passed an updated bill in 2011. Officials in Missouri reported that the Justice Department rejected its 2009 law because it did not require that an individual’s reputation be taken into account when she petitioned to restore her rights.

User Fees and NCHIP Grants

Several states that are ineligible for NARIP grants have looked for alternate sources of funding to implement or improve their record-sharing programs.

Officials in three states told Mayors Against Illegal Guns that they have generated funds for record sharing through user fees. Since the economic downturn, Georgia has stopped allocating money from the state general fund to its record-sharing program. Instead, it has started charging a user fee for criminal history information, which, according to a Georgia state official, raises about a third of the funds necessary to support its recordsharing program. Kansas also uses the $20 fee it charges residents for running criminal background checks to fund improvements to its system, including transitioning from a paper system to an electronic submission process. And Kentucky, which received a NARIP grant in 2011, had already adopted the practice of allocating $10 of each $60 concealed carry permit application or renewal fee to the state courts to fund background checks.Ky. Rev. Stat. Ann. § 237.110(7).

Examples of states that pay for their own programs through existing state funding are few and far between. The Arkansas Crime Information Center, which bears the cost of two full-time employees to enter data into the NICS Index, is one of these outliers.

A larger number of states that are ineligible for NARIP grants have instead obtained National Criminal History Improvement Program (NCHIP) grants. Since 1995, NCHIP grants have provided funds to states seeking to improve the collection and distribution of criminal history record information used in a wide range of criminal justice and noncriminal justice background check systems.See U.S. Department of Justice. Office of Justice Programs, Improving Criminal History Records for Background Checks (2005), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/ichrbc05.pdf. NCHIP grants stress NICS improvement as a core goal of the grant awards, but unlike NARIP, NCHIP grants may be used for other purposes. Though the eligibility criteria for NCHIP and NARIP grants are similar, NCHIP grants do not require state applicants to have a gun rights restoration law.

NCHIP grants tend to be much smaller than NARIP grants, and many more states apply for them. In FY2011, $31.2 million in NCHIP grants was divided among the states, with $20.1 million of that going to just 12 states.See U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, “NCHIP Funding for 1995-2011,” available at http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=471#Funding.

In 2010, eight states were granted NCHIP funds for projects that addressed NICS-related issues: Arkansas, Connecticut, Delaware, Kansas, Louisiana, Maryland, Virginia and West Virginia.Id. Note that other NCHIP grants, while not required to be used solely to improve NICS infrastructure, may indirectly improve NICS submission rates. For example, NCHIP grants awarded for digitizing records submitted to III or flagging domestic relationships in criminal history records may also ultimately improve the reach and efficacy of NICS background check searches. These states used NCHIP funds, at least in part, for a variety of NICS improvements, from digitizing records to reviewing state criminal records databases for federal gun prohibitors. Several of these states showed marked improvement in mental health record submissions in 2010 over prior years, including Arkansas, Connecticut, Kansas, Virginia and West Virginia.

The recently announced NCHIP awards for FY2011 are intended to fund a range of state NICS improvements.Id.

Though NCHIP funding awards are modest, even small grants enabled some states to make progress on reporting mental health records.

No Funding, Poor Reporting

States without federal or state funding are generally not submitting mental health records, even if they have the legal structure in place to do so.

Illinois passed a law in 2008 mandating reporting,430 Ill. Comp. Stat. 65/3.1(e) (2011). but records were not submitted in any real number until December 2010, when it allocated state funding to pay for programmers at both the Illinois State Police and the Department of Human Services. With the additional support, Illinois submitted 5,000 records. The state has since received a NARIP grant that it is using to improve its reporting system and, by October 31, 2011, it had submitted 7,127 mental health records to the NICS Index.

It took California two years after entering into a Memorandum of Understanding with the FBI for the state to submit any records because there was no funding to pay for the necessary logistical changes to disaggregate records of individuals prohibited from owning a gun by state law, but not federal law. The state was eventually able to use some of its NCHIP grant to complete these improvements.

Leadership and Political Will to Improve Submission of Mental Health Records

A review of the states that have dramatically improved mental health record submissions reveals that, despite their range of circumstances, they have one attribute in common: strong and creative leadership.

Without question, tragic events like the mass shootings at Virginia Tech and Tucson supplied a strong incentive for states to submit more records to NICS. For example, a California official reported that the state overcame all legal obstacles two years before any records were shared, but Virginia Tech prompted faster action. This story was echoed by an official in North Carolina who reported that the tragedy kick-started the state’s efforts. And, more recently, an official in Arizona said that publicity following the Tucson shooting prompted both the governor and the Administrative Office of the Courts to get involved in finding ways to get more mental health records into NICS.

But dozens of interviews suggest that these tragedies were only part of a larger explanation: the states that were able to make the changes necessary to submit mental health records to NICS were the states where determined leaders championed the issue, built the necessary coalitions and found innovative ways to overcome the logistical, political and budgetary obstacles in their way

A review of successful states provides useful examples of how effective collaboration among state agencies, consultation with federal agencies and partnering with interest groups and other stakeholders can produce good results:

  • California: California’s statute governing the sharing of mental health records contained a confidentiality provision that made NICS compliance difficult.1990 Reg, Sess. Assemb. B. No. 497 (Ca. 1991). The prospects for amending the law were unclear, so California leaders took an alternative approach. These leaders worked with NICS to enter into a memorandum of understanding to ensure that the federal government would only use state records for purposes that were permissible under state law. This creative approach facilitated the submission of nearly 280,000 California mental health records into NICS.
  • Connecticut: According to a Connecticut official, mental health providers in the state were initially adamant that records could not be shared because of privacy concerns. State leaders responded by bringing NICS legal staff to the state to brief the Connecticut Assembly’s Public Safety Committee on how to adjust state law to overcome privacy concerns. The law was changed in 2005;Conn. Gen. Stat. § 29-36l(d)(2) (2011). as of October 31, 2011, Connecticut has submitted more than 11,000 mental health records.
  • New York: The Division of Criminal Justice Services (DCJS) reached out to the Office of Mental Health, the Office for People with Disabilities and the Office of Court Administration to compile the record estimates necessary to obtain a NARIP grant. DCJS then helped develop an encrypted file format the Department of Mental Health’s public hospitals could use to submit records, and obtained funding to expand this system to the Department of Health and private hospitals. The results have been dramatic: as of October 31, 2011, New York has submitted more than 160,000 mental health records to NICS, up from just one in 2006.
  • Idaho: In Idaho, the Bureau of Criminal Investigation brought together NICS, the ATF and the mental health community to draft and pass a statute requiring submission of mental health records and creating the gun rights restoration program necessary to obtain federal funding.Idaho Code Ann. §§ 66-356, 67-3003 (2011). Idaho then used a NARIP grant to create a fully automated system for record submission that is, according to a state official interviewed in November 2011, expected to become operational by early 2012.
  • Florida: A Florida official reported that the state was able to improve from zero records in 2006 to more than 40,000 in 2011 because the Florida Department of Law Enforcement and the NRA worked together to pass a state law mandating record sharing.Fl. Stat. § 790.065 (2008). To ensure eligibility for NARIP grant funding, the Department of Law Enforcement worked with the ATF to draft the statutory language for a gun rights restoration program. To ensure that the infrastructure was in place to locate, collect and transmit the records, the Department worked closely with the state clerks’ association.
  • Michigan: In Michigan, legal staff from the state mental health agency, the state police, the state attorney general’s office and the ATF met to resolve their privacy concerns. Together, the agencies were able to convince the state courts to send mental health records to NICS. As of October 31, 2011, Michigan has submitted nearly 100,000 mental health records to the system.

Task forces and working groups have often helped identify creative solutions to a state’s idiosyncratic circumstances. For example, West Virginia has a relatively unique system in which county mental health examiners often make commitment decisions and report them to the West Virginia Supreme Court of Appeals.W. Va. Code § 61-71-3 (2011) According to a state official, these county examiners are located throughout West Virginia and had antiquated recordkeeping systems. The state police and the courts formed a steering committee and invited a representative from NICS to help identify ways to overcome obstacles.

The committee developed a unique strategy to meet West Virginia’s needs. The state gave every county mental health examiner a laptop to enter records of mental health hearings, which are then automatically sent to a database administered by the state supreme court. The court then uses a secure file transfer protocol or “ftp” link to the West Virginia State Police to submit relevant records, and the police send the records to NICS. Since the system was instituted in 2010, the state has increased its submissions from around 609 to more than 5,600 as of October 31, 2011.

In other instances, leadership entailed seizing political opportunities. In Ohio, for example, the state attorney general seized the chance to insert language into a 2004 bill on concealed carry gun permits. The language mandated that all mental health records be sent to the Ohio Bureau of Criminal Identification and Information and shared with NICS. Ohio has since jumped from just one mental health record in the federal database to more than 26,000.

Similarly, during 2006 negotiations on a concealed carry bill in Kansas, the state Bureau of Investigations (BOI) researched which kinds of records should go into NICS and worked to ensure that the new state law required courts to submit all involuntary commitments for mental health, substance abuse and alcohol from the past 20 years to a central state repository that it would control. Since then, BOI has regularly trained state officials on how to comply with record-sharing requirements. Although BOI did not receive federal funding to implement these changes, it has used a $20 fee it charges for access to criminal history data to fund the creation of an electronic system to automatically transmit records to NICS. These efforts have resulted in a threefold increase in the number of mental health records submitted by Kansas over the past five years. According to a state official, BOI is now spearheading an effort to get a NARIP grant to improve reporting of the remaining missing records. Kansas completed its first record estimates this year, and for the last several years, a gun rights restoration bill has been advanced in (though never passed by) the legislature.

Potential financial penalties may soon begin to encourage additional states to ramp up their efforts. Vermont, for example, has faced various funding, logistics and privacy obstacles to submitting mental health records; as of October 31, 2011, the state had submitted only 25. A Vermont official expressed optimism that records would soon be shared with NICS, however, because the Justice Department may begin penalizing states that miss reporting targets established by the NICS Improvement Act.NICS Improvement Amendments Act of 2007, Public Law No. 110-180 (Jan. 8, 2008). If the Justice Department chooses to waive these penalties, states’ motivation to act will likely wane.

Issues Affecting State and Federal Submission of Substance Abuse Records

Federal law prohibits any person who is an “unlawful user of or addicted to any controlled substance” from purchasing or possessing a gun. 18 U.S.C. § 922(g)(3).

Both the ATF and the FBI have clarified the meaning of this prohibition and identified the kinds of substance abuse records that must be shared with NICS. Regulations promulgated by the ATF explain that “[a]n inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time.”27 C.F.R. § 478.11. This includes “persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year.”Id. FBI policy guidelines further clarify that a failed drug test, a single drug-related arrest or an admission of drug use within the past year are also evidence of “current use” and disqualify a person from possessing a gun for one year.U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division, National Instant Criminal Background Check System (NICS) State Support Team Quick Reference Guide 2010.

Given those broad criteria, states and federal agencies are plainly failing to report relevant records to NICS.

According to the 2007 National Survey of Drug Use and Health conducted by the U.S. Department of Health and Human Services, the use of illicit drugs among Americans is widespread.U.S. Department of Health and Human Services, “Results from the 2007 National Survey on Drug Use and Health: National Findings,” available at http://www.oas.samhsa.gov/NSDUH/2k7NSDUH/2k7results.cfm#Ch2; An estimated 1,645,500 adults and 195,700 juveniles were arrested for drug abuse violations in the year the survey was conducted. U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, “Estimate Arrests for Drug Abuse Violations by Age Group, 1970-2007,” available at http://bjs.ojp.usdoj.gov/content/glance/tables/drugtab.cfm. Many of these arrest records should be submitted to the NCIC or III and thereby become searchable by NICS. Yet millions of Americans who use illicit drugs are never arrested, even though they might meet the federal definition of habitual drug user because they had, for example, failed a drug test, and even though records of this drug use are held by state and federal agencies.

Neither the states nor the federal government appear to have a protocol for submitting nonarrest relevant drug information to the NICS Index. As of October 31, 2011, states submitted just 1,392 drug abuse records. Thirty states did not submit a single record to the NICS Index substance abuse file. Just five states submitted more than 100 records, led by Minnesota with 556 records. The evident underreporting of relevant records suggests that many illegal drug users could pass NICS checks despite being federally barred from buying or owning firearms.

Interviews with state officials suggest that the dearth of substance abuse records is the result of widespread confusion about the kinds of records that must be shared with NICS. Roughly half of the state officials interviewed wrongly believed that all relevant substance abuse records were contained in the criminal history records sent into the III database. Officials in 32 states reported that they were making no effort to share drug abuse information that did not involve convictions or arrests, such as drug treatment commitments or failed drug tests. Most reported that their states did not have the necessary infrastructure to report such information in any event.

California has maintained a centralized mental health database for firearms background checks since 1991.1990 Reg, Sess. Assemb. B. No. 497 (Ca. 1991). But there is no repository for substance abuse records that are not related to criminal proceedings because such records do not bar gun possession under California law. According to a state official, a new law would have to be passed to prompt California to share these records with NICS.

The federal government has fared little better than the states. The NICS Improvement Act specifically requires all federal agencies—including the military—to provide “any record of any person” who is prohibited from purchasing firearms to the FBI on at least a quarterly basis. Even so, the federal government has submitted only 12,023 prohibiting controlled substance records into the NICS Index. Despite the fact that many federal agencies administer employment related drug tests, the vast majority of these records were shared by just one agency that operates exclusively in the District of Columbia: the Court Services and Offenders Supervision Agency (CSOSA).

The Department of Justice may actually discourage some federal entities from sharing substance abuse records. In 1994, then-Attorney General Janet Reno reportedly established a policy exempting the Department of Defense from providing NICS with information about potential military enlistees who fail drug tests.James V. Grimaldi, “Reno-era policy kept Loughner off FBI list,” The Washington Post, January 19, 2011. This guidance apparently remained in place even after Congress reiterated in the NICS Improvement Act of 2007 that all federal agencies are required to report these records.Id.

The table below contains data provided by the FBI on October 31, 2011 on the federal agencies that have submitted drug abuse records and/or mental health records to NICS. The FBI tracks record reporting from 61 different federal entities; the remaining agencies have submitted zero.

Recommendations

The legal, financial and logistical challenges federal and state governments face are idiosyncratic and complex, but they are not insurmountable. Indeed, many states are overcoming them.

Based on our review, we believe the federal government could take several steps that would significantly improve reporting of mental health and substance abuse records by federal agencies and the states:

  • Enforce the law on federal agency reporting: The NICS Improvement Act requires that federal agencies share mental health, substance abuse and other records that prohibit a person from owning a gun, but few agencies comply. The President should issue an executive order requiring all federal agency heads to certify twice annually, in writing, to the U.S. Attorney General that their agency has submitted all relevant records to NICS.
  • Increase incentives and penalties related to state compliance: The modest financial incentives and penalties the federal government wields under the NICS Improvement Act have not prompted states to fully report. Congress should significantly increase both the federal funding available to assist record sharing and the penalties for states that do not comply, and tie them to far more ambitious reporting targets. Tee Fix Gun Checks Act, introduced by Sen. Charles Schumer and Rep. Carolyn McCarthy as S.436 and H.R. 1781 in the 112th Congress, would make these improvements.
  • Retain the names of prohibited purchasers who fail background checks: The FBI should preserve the names of all individuals who have failed a gun background check in its National Crime Information Center (NCIC) database. Tracking these prohibited purchasers would save the FBI valuable time and resources by avoiding a full NICS investigation should those people attempt to buy another gun. In addition, retaining these names in NCIC would alert local and state law enforcement when a person prohibited from possessing a gun just attempted to buy one.
  • Issue clear guidance on which mental health and drug abuse records should be submitted to NICS: Many states are unaware of which mental health and drug abuse records should be sent to NICS. The FBI currently holds periodic regional conferences on record sharing for state officials, and has sent some written guidance to state attorneys general. Nevertheless, many state officials reported that they do not have a clear understanding of which records should be shared. The need for clear guidance is particularly acute for mental health records that are held by entities other than courts, and for substance abuse records that do not involve arrests. The FBI and the ATF should issue clear, complete guidance and make it available online.
  • Help states that already have record repositories to transfer their records to NICS: Many states already have centralized repositories with tens or hundreds of thousands of mental health records that should be shared with the federal database. The FBI should work more aggressively with these states to overcome the logistical, technical or other hurdles to sharing these records.
  • Help states develop qualified “relief from disability” programs: Many states are unable to get NARIP grants to improve their record sharing because they have difficulty enacting the gun rights restoration program that federal law requires. The ATF should develop a set of model bills that satisfy federal requirements, while insuring that a petitioner’s right to buy a gun may only be restored after his or her mental health records are thoroughly reviewed by qualified experts. The Justice Department should make those materials and other guidance available to state agencies and policymakers.
  • Fully fund NICS programs: While federal NARIP grants are the largest source of funding to support state record sharing, Congress has appropriated only 4.96 percent of the amount authorized for the grant from FY2009 through FY2011. The federal government should increase funding for the program.

Appendix

Click here to download a full appendix of state NICS reporting laws.