Fatal Gaps

Progress Toward a Stronger Background Check System

More than ten years after the Virginia Tech shooting, progress in closing the gaps in state mental health records submissions is evident in several key areas: legislation passed, federal funding accessed, mental health records submitted, and gun sales denied to prohibited people.

States have adopted or fixed reporting laws 

In 2007, only eight states had laws requiring or explicitly authorizing the reporting of prohibiting mental health records to NICS. Between 2007 and 2017, 35 states passed new reporting laws and, by the end of 2017, 43 states had reporting laws in place. In that same time period, 16 of those states have also amended and improved existing laws.

In the last 10 years, 35 states passed mental health records reporting laws

States have used federal funding to strengthen their systems

The NICS Improvement Act made new federal funding available to states, known as the NICS Act Record Improvement Program (“NARIP”) funding, for upgrading their systems to submit NICS records. Only states that have begun the work of submitting their mental health records¹States must make estimates of the number of total mental health records to be submitted and must establish a qualifying relief from disabilities program that enables prohibited people to apply for the restoration of their rights when they no longer pose a danger. are eligible to apply for and receive NARIP funding. In 2009, the first year in which funding was made available, three states received federal NARIP funding. By the end of 2017, twenty-nine states had received this funding — and in total, the program has awarded nearly $119 million since its inception.

Mental health record reporting by the states has improved 

Between December 2008 and December 2017, the first and latest year for which data are available, the number of state-submitted mental health records in NICS increased by more than nine times, from just over 531,000 to nearly 4,973,000. In 2008, there were 35 states (along with Washington, D.C.) with less than 100 records submitted. In 2017, only two states had submitted fewer than 100 mental health records.

More prohibited persons are blocked from buying guns 

As the number of mental health records in NICS has increased, so has the number of firearm sale denials to individuals prohibited due to mental illness. Since 2008, the number of these denials has increased by 11 times, from approximately 960 annual denials to over 11,000 in 2017.

Ten Years After Virginia Tech, Mental Health Records Submitted Have Increased by 9 Times; Denials Have Increased by 11 Times

Reporting Laws And Federal Funding Are Key To Closing The Gaps

State reporting laws matter. The 43 states with laws requiring or explicitly authorizing reporting have dramatically improved their records submission, particularly in comparison to the seven states (along with D.C.) without reporting laws.

States that have reporting laws for mental health records have experienced a significant improvement in the number of records submitted.

• In the 43 states with reporting laws in place, the number of prohibiting mental health records in NICS increased by 11 times between 2008 and 2017.
• Over the same time period, mental health records in the seven states (along with D.C.) without reporting laws also increased, but at a drastically slower rate of only two times.
• In 2017, the 10 states with the highest record submission rates per capita²While no national benchmark or minimum requirement for number of records submitted by each state exists (see more in the Records and Denials by State section), the record submission rate on the basis of the state population provides an opportunity to analyze any trends in the data. all had a reporting law in place.

States With Mental Health Reporting Laws Have Experienced a Significant Improvement in Number of Records Submitted Compared to States Without These Laws

In the absence of reporting laws, seven states — Arkansas, Ohio, Michigan, Montana, New Hampshire, Utah, Wyoming — and D.C. are likely underreporting mental health records, with some states submitting only a handful every year. Compared to states with reporting laws, these seven states and D.C. are reporting records at a significantly lower rate.

• In fact, states with reporting laws have submitted more than twice as many records per capita than states without laws — 1,600 vs. 700 per 100,000 people, respectively. Importantly, a large portion of the records submitted by states without laws are submitted by Michigan and Ohio, both of which have agency policies in place in the absence of laws.
• Six of the seven states, along with D.C., are in the bottom half of record submission rate per capita and four of those states are in the bottom ten performing states.
• Two states — Montana and Wyoming — have submitted fewer than 100 mental health records, and Wyoming, has submitted fewer than 10 records since 2007.

In addition to state laws, it is important to consider the impact of federal funding in improving reporting structures. By the end of 2017, 29 states with mental health reporting laws had received NARIP funding. And that funding made a difference: The states with the highest submission rates per capita had reporting laws and had received NARIP funding.

• Of the 10 states with the highest record submission rates per capita, eight had a reporting law in place and received NARIP funding.

States with more records in the system are better situated to prevent prohibited people from purchasing guns. 

As the number of mental health records in NICS has increased, so has the number of firearm sales denied to people prohibited by mental illness. The states that have the lowest submission rates are also experiencing the lowest denial rates.

• In the 43 states with reporting laws in place, the number of annual denials was nearly 13 times higher in 2017 than in 2008, increasing from 822 in 2008 to 10,281 in 2017.
• During the same time period, annual denials in the seven states and D.C. without reporting laws increased only five times, increasing from 145 to 794. Again, the majority of the denials in states without laws occurred in the two states with agency policies in place, Michigan and Ohio.

States With Mental Health Reporting Laws Block More Gun Sales to People Prohibited Due to Mental Illness Compared to States Without These Laws

The details of a reporting law matter. 

Not every state reporting law is as comprehensive as it could be. Evidence suggests that certain components of state reporting laws are associated with better records reporting outcomes.

• Of the 10 states with the highest record submission rates per capita, there are eight that require reporting, rather than merely authorizing it. These states provide clear statutory direction that records must be reported so that a change in political will or funding does not hold back progress.³Indeed, at the time of the original 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.

Notably, these laws also vary in whether they require reporting of prohibiting records created before their enactment date — or else whether the state is required only to send in records on a prospective basis, enabling many prohibited people to pass a background check and buy a gun. States can also strengthen their laws and, in turn, their reporting systems, by ensuring that records are reported both from courts and also from mental health facilities, as appropriate — and by explicitly setting a short reporting timeframe for required submission. Finally, if states fail to establish a qualifying relief from disabilities program that enables prohibited people to apply for the restoration of their rights when they no longer pose a danger, the state is not eligible for NARIP funding.

Conclusion And Recommendations

Despite widespread progress in the improvement of reporting systems, there are likely hundreds of thousands of prohibiting mental health records that remain missing from NICS. Until these records are submitted, prohibited people, including those who are at very high risk of violence, will be able to purchase firearms without restriction.

To close these fatal gaps in NICS and help keep our communities safe:

• All 50 states need reporting laws. The seven states (along with D.C.) without mental health record reporting laws — Arkansas, Ohio, Michigan, Montana, New Hampshire, Utah, and Wyoming — need to pass and implement strong reporting laws.
• States with laws in place should apply for federal funding to support the submission process, and in turn, improve their records submissions.
• States should ensure that their reporting laws include provisions that
  1. Require reporting rather than merely authorizing it.
  2. Apply to prohibiting records that existed before the laws were enacted.
  3. Ensure that records from courts and health facilities are submitted.
  4. Require all records to be submitted within a short, designated period of time following the prohibiting event.
• Submission processes should be audited regularly and updated accordingly by states to ensure no records are falling through the cracks.

Appendix A: Records And Denials By State

There are many factors that affect the number of records a state has submitted to NICS, including state laws and funding streams, as well as differing mental health treatment rates, standards, and approaches that may impact how many people in a given state will be involuntarily committed, adjudicated as a danger to self or others, or otherwise prohibited by law. These factors vary significantly from state to state and make accurate and meaningful inter-state comparisons difficult. As a result, there exists no national benchmark or minimum requirement for the number of mental health records that should be submitted by each state.⁴United States Government Accountability Office, Gun Control: Sharing Promising Practices and Assessing Incentives Could Better Position Justice to Assist States in Providing Records for Background Checks; 2012.

While precise state comparisons may not be possible, we can look at the number of records submitted by each state and analyze trends that exist within those states over time. This analysis helps illustrate that the top reporting states have a combination of strong state laws and have received federal funding, while the bottom performing states have neither.

Presented below is a summary of mental health records data and rate of records, adjusted by population, and gun sales denied due to mental health for each state for 2008 and 2017. 

Appendix B: Mental Health Records And The NICS