Lack of data makes it hard for background checks system to work properly

While the National Instant Criminal Background Check System remains the only square inch of compromise between the nation’s divided gun camps, the costly federal program is failing to keep guns away from the dangerously mentally ill.

The White House describes the background check system, known as NICS, as its “most important tool” to stopping gun crime. But more than a decade of data from the FBI and public health research reveals broad failings of the system, which has cost at least $650 million to maintain, a News21 investigation found.

Nearly all sides of the gun debate have devoted resources to strengthening the background check system, confronting technology gaps, coordination failures and privacy concerns.

Thirty states have passed laws mandating mental health reporting to NICS, four of which were added in the past six months. Yet no organization has been able to address the larger concern that NICS is poorly designed to identify those in society most likely to be violent.

“It’s really casting a very wide net to try to find a few people, which is largely an impossible task,” said Michael Norko, head of forensics at the Connecticut Department of Mental Health and Addiction Services. “It’s not really a good public health measure. We really need to find a better way of doing this.”

Federally licensed gun dealers are required to conduct a background check, either online or by phone, before each firearms sale. Within about 30 seconds, the system searches for criminal convictions and in 38 states a history of severe mental illness as judged by a court.

But states are not required under federal law to submit mental health records to NICS. There are no consequences if states choose not to send records, resulting in major information gaps.

Only about 30 percent of the estimated 4.4 million mental health records in the United States over the past two decades can be found in NICS, according to research compiled in 2012 by the National Consortium for Justice Information and Statistics and the National Center for State Courts.

Out of all gun purchases blocked by the FBI over the past 16 years, fewer than 2 percent were because of mental health status. That amounts to 14,613 blocked sales since 1998.

The files are costly to locate and store, according to interviews with officials from 10 states. There were 2,083 agencies responsible for providing information for background checks across the country in 2010, including courts, state health departments and psychiatric hospitals, according to the most recent Bureau of Justice Statistics report.

The system is also vastly overinclusive, six public health experts said in interviews.

People’s names are kept in the database based on a decades-old definition of “mentally defective,” which relies on court decisions rather than doctors’ orders. Under federal law, individuals with histories of violent psychotic episodes can buy guns as long as they never set foot in a courtroom. Every one of the country’s mass shooters since January 2009 could have slipped through NICS, according to a July 2014 study by the gun control organization Everytown for Gun Safety.

In 12 out of the 110 incidents identified by Everytown, the shooters had demonstrated some evidence of a mental illness, but there was no evidence that any of them had been mentally adjudicated or involuntarily committed for treatment.

Research over the past decade shows that it’s nearly impossible to predict which individuals will commit gun violence, let alone find them through NICS.

“The ability of mental health professionals to pick out who’s going to be violent, it’s not much better than a coin toss,” said Jeffrey Swanson, a medical sociologist from Duke University who studies the intersection of guns and mental illness. “To focus only on mental health is misguided.”

A patchwork of regulation

In addition to the FBI’s annual budget for NICS, the Department of Justice has handed out $56 million in state grants over the past five years to improve mental health reporting.

Despite years of investments, some states continue to struggle to submit records.

● Massachusetts has received $2,323,737 and collected just one record.

● Idaho has received $4,359,500 and collected 4,002 records.

● North Dakota has received $297,267 and collected 18 records.

Thirty states have passed laws that require agencies to report mental health records, with the number of records tripling since 2011. But states continue to report difficulties with interagency coordination, technological abilities and privacy laws.

After Nevada passed a law requiring state offices to submit records, it took more than a year for the courts to comply, Nevada state court administrator Julie Butler said. There’s still no way to know if the courts are submitting all their records, she said.

“The onus is really on the courts. We don’t know what we don’t know,” Butler said.

Florida, which has received $8.6 million since 2007, has retroactively collected more than 60,000 mental health records since it was blasted in a report from Mayors Against Illegal Guns that showed the state had far fewer records than less-populated states such as Pennsylvania.

As the Florida Department of Law Enforcement began educating clerks from the state’s 67 counties and offering funds to help address the backlog, most complied.

Still, the recordkeeping is imperfect. A 2014 internal audit of the data found 4,000 records took more than a year. Additionally, nearly 200 records had incorrect birthdates, making it difficult for the system to identify disqualified people.

Most state officials pointed to privacy concerns, outdated computer systems and a potential chilling effect of more reporting meaning fewer seeking mental health treatment. Those concerns, along with personal freedoms — predominantly, the Second Amendment — have emerged in nearly every state that refuses to require NICS reporting.

Federal government officials — along with lobbyists from Everytown for Gun Safety and the gun industry association National Shooting Sports Foundation — continue to push for more records. In 2015, the government will hand out $58 million in NICS mental health grants, its largest-ever pool of funding.

U.S. Rep. Andy Harris (R-Md.), who sits on the House Appropriations Committee, said he doesn’t support increased funding for NICS.

“Throwing money at the problem hasn’t solved the problem in Maryland now for a decade, and it won’t solve the problem now,” Harris said. “It’s become clearer and clearer that we have difficulty restricting people with serious mental illness from acquiring a firearm. We need to think of another way.”

Maryland has received $10 million in criminal justice grants over the past decade, though it had submitted just 285 records as of last fall. Concerned about his state’s poor track record, Harris raised the issue with Attorney General Eric H. Holder Jr. in a hearing about Justice Department funding.

“There are certainly places where the amount of information provided by the states is inadequate and we need to take steps to try to remedy that situation,” Holder said during the hearing. “There’s no question, I think, the system as it is designed, technically, I think, works.”

Filling the gaps

One of the biggest flaws of the background-check system is that the federal government cannot force states to submit records, according to the Supreme Court’s 1997 ruling in Printz v. U.S.

The Department of Justice has some bargaining power: Officials have threatened to take away federal grants from states that don’t participate in NICS. Those penalties are expected to increase through 2018 if states do not submit at least 90 percent of records. But the government has not yet acted on the warning. Instead, it has awarded an average of $28 million in grants each year since 2009 to states that opt in.

Eighteen states have passed new laws on NICS since 2011. Jake McGuidan, the NSSF’s director of government relations and state affairs, said he has claimed victories in about 12 out of 15 states where they have paid lobbyists in the past year.

McGuidan said the federal government has focused too much on guns in the wake of the shooting at Sandy Hook school. When the administration finally turned its focus to mental health, he said it seemed like an afterthought.

“A lot of the time and effort in D.C. is focused on gun-control issues,” he said. “It was almost like, ‘Well, we’re not getting gun control, so now let’s look at other issues.’ ”

Just how tied mental illness is to gun violence is also being debated. Studies have found a slight correlation between mental illness and violence, though psychiatrists such as Linda Stalters maintain that the two issues belong in separate policy realms. The vast majority of people with mental illnesses have never committed a violent crime.

Stalters, the president of Schizophrenia and Related Disorders Alliance of America, said the core issue is about the lack of treatment, not access to guns.

“The people who are generally going to be using guns are not the people who have a psychiatric diagnosis. We just hear about those,” Stalters said. “There are tens of thousands of people each year who have committed murders that don’t have schizophrenia.”

Gun suicides outnumbered gun homicides nationally by about a 2-to-1 margin in 2012, a News21 investigation found.

Daniel Webster, the director of the Johns Hopkins Center for Gun Policy and Research who has spent 20 years studying gun violence and policy, said if other experts in his field were asked to choose one type of law they wanted to see, it would likely be universal background checks.

The current system, he said, is not built around the individuals who are most likely to commit violence — those with a history of violence, such as individuals with misdemeanor counts of assault and domestic abuse.

“[NICS] does identify a high-risk group, but it’s pretty small high-risk group. I think there are much bigger fish to fry,” Webster said.

This report is part of the project titled “Gun Wars: The Struggle Over Rights and Regulation in America,” produced by the Carnegie-Knight News21 initiative, a national investigative reporting project involving top college journalism students across the country and headquartered at the Walter Cronkite School of Journalism and Mass Communication at Arizona State University.

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