How the Virginia Tech Shooting Prompted Changes in State Mental Health Records Reporting
In 2007, 32 people were shot and killed and 17 others were wounded at Virginia Tech. The shooter was prohibited from possessing firearms due to a court judgment that he was a danger to himself and others, but his records were never submitted to the FBI’s National Instant Criminal Background Check System (“NICS”). As a result, he was able to pass several background checks to purchase the guns he used in the shooting.
In the wake of this mass shooting, lawmakers took action to close the fatal gaps in state mental health records reporting that undermine the background check system and threaten the safety of Americans. This report documents ten years of progress, examines its key drivers, and underscores the vital importance of state and federal laws that govern and support mental health records reporting.
Notwithstanding this progress, it is likely that hundreds of thousands of prohibiting mental health records are missing from the background check system, potentially enabling prohibited people to purchase firearms illegally. To close these fatal gaps, the seven states that do not have mental health reporting laws should pass and implement strong laws. All 50 states need laws that require prompt submission of all prohibiting records and federal funding to support the submission process. States should regularly audit their submission processes to ensure no records are falling through the cracks.
In the past 10 years, 35 states have improved records reporting by passing new reporting laws, 16 states have improved existing laws, and 29 states have accessed federal funding.
As a result of state reporting laws and federal funding, mental health records submitted by states have increased by nine times and gun sale denials have increased by 11 times.
States with mental health reporting laws submitted more than twice as many records per capita as states without these laws.
The states with the highest submission rates per capita had reporting laws and had received federal funding.
Screening gun buyers with a background check is the backbone of any comprehensive gun violence prevention strategy, and it works to keep firearms out of the hands of people who pose a danger of violence to themselves or others. Since its inception in 1994, the background check system has blocked over 3 million sales to people prohibited by federal or state law from possessing guns5Karberg JC, Frandsen RJ, Durso JM, et al. Background Checks for Firearm Transfers, 2015. Bureau of Justice Statistics; 2017. Data for 2016 and 2017 were obtained by Everytown from the FBI directly. Though majority of the transactions and denials reported by FBI and BJS are associated with a firearm sale or transfer, a small number may be for concealed carry permits and other reasons not related to a sale or transfer. — including convicted felons, domestic abusers, and people prohibited due to mental illness.*
The foundation of a background check is the FBI’s National Instant Criminal Background Check System (“NICS”) — the system that enables a quick determination on whether a prospective gun buyer is eligible to buy firearms. But a background check is only as good as the records in the NICS databases and the submission of those records largely falls to state courts and law enforcement agencies.
Any missing record is a tragedy waiting to happen.6The problem of missing records was recently brought to national attention by the mass shooting at Sutherland Springs, Texas in November 2017, where a shooter opened fire in a church, killing 26 people. Two years prior, the shooter was discharged from the U.S. Air Force after being court martialed for assaulting his wife and fracturing the skull of his infant stepson. This conviction prohibited him from possessing firearms under federal law; however, the Air Force failed to enter the record of the conviction into the federal database. As a result, the shooter was able to pass a background check and purchase the rifle used in the shooting from a licensed gun dealer. After the shooting, an Inspector General report revealed that the military had failed to tell the FBI about 31 percent of service members’ criminal convictions between 2015 and 2016, and had not met reporting requirements for over 20 years. The Sutherland Springs shooting underscores the fact that, despite the progress being made in states that have improved mental health records reporting, further work is needed by states and federal agencies to close the gaps that exist in federal records reporting. The Air Force has since committed to evaluating all reportable offenses going back to 2002 and putting new procedures in place to make sure the proper requirements are being met. Indeed, states’ failures to submit records to NICS have enabled prohibited people to pass background checks and purchase firearms, to devastating effect. This problem has been especially acute with mental health records.
The Virginia Tech mass shooting called attention to fatal gaps in record submissions that undermine the background check system and threaten the safety of communities across the country.7Luo M. U.S. Rules made killer ineligible to purchase gun. New York Times. April 21, 2007. In response to the shooting, Congress passed the NICS Improvement Amendments Act of 2007 (the “NICS Improvement Act”), creating a system of financial incentives to encourage robust state reporting.8Note that the federal government cannot constitutionally require states to submit prohibiting records, and must instead incentivize submission by other means. States have since taken action by passing or strengthening record reporting laws, accessing federal funding to improve their systems, and doing the work of getting records into NICS.
Everytown for Gun Safety has long been a leader in this area, interviewing state officials in 50 states, authoring two reports on mental health records, Fatal Gaps and Closing the Gaps , and advocating in statehouses to improve state reporting.
In this new report, Everytown for Gun Safety analyzed the NICS Indices database obtained from the FBI for the years 2008 to 2017, the earliest and latest years for which data were made available.9Everytown for Gun Safety received state records and denial data directly from the FBI via FOIA request. NARIP funding data was downloaded directly from the BJS website, available here: www.bjs.gov/index.cfm?ty=tp&tid=491. Everytown analyzed the state laws and policies governing reporting laws. The data show that significant progress has been made throughout the country, led by states that have strengthened their records reporting infrastructures through legislation and federal funding. As a result, the number of mental health records in NICS has drastically increased and more gun sales have been denied to people prohibited due to mental illness.
*A diagnosis of mental illness alone does not prohibit a person from gun possession. Rather, the federal prohibition applies to any person: involuntarily committed to a psychiatric facility; found by a court or other authority to be a danger to self or others due to mental illness; found guilty but mentally ill, not guilty by reason of insanity, or incompetent to stand trial; or appointed a guardian due to mental illness. 18 USC 922(g)(4), 27 CFR 478.11.