Tragedy ex­poses flaws in gun checks

An­a­lysts cite re­port­ing is­sues, lack of fed­eral spend­ing, loop­holes.

Austin American-Statesman - - FRONT PAGE - By Sean Collins Walsh scwalsh@states­man.com

The mas­sacre at the First Bap­tist Church in Suther­land Springs has fo­cused na­tional at­ten­tion on the Air Force’s fail­ure to re­port to the FBI a 2012 mil­i­tary court con­vic­tion that should have pre­vented the shooter from buy­ing an as­sault-style weapon he used to kill 26 peo­ple and in­jure 20 more.

But gun ex­perts say prob­lems with the back­ground check sys­tem for gun pur­chases go well be­yond gaps in mil­i­tary con­vic­tion records and have fac­tored into many of the mass shoot­ings that have gripped the coun­try in re­cent years.

“The mil­i­tary fail­ure is just the is­sue we know about most re­cently,” said Garen Win­te­mute, an ER doc­tor and gun vi­o­lence re­searcher who di­rects the Univer­sity of Cal­i­for­nia’s Vi­o­lence Pre­ven­tion Re­search Pro­gram. “Fail­ure to re­port is a wide­spread prob­lem that has been rec­og­nized at the fed­eral level and by re­port­ing agen­cies for decades.”

The Na­tional In­stant Crim­i­nal Back­ground Check Sys­tem — a net­work of data­bases main­tained by the FBI that fed­er­ally li­censed gun sell­ers check be­fore mak­ing sales — is sup­posed to pro­hibit cer­tain groups of peo­ple from buy­ing guns, in­clud­ing drug abusers, felons, fugi­tives, unau­tho­rized im­mi­grants, peo­ple con­victed on do­mes­tic vi­o­lence charges and those in­vol­un­tar­ily com­mit­ted to a men­tal health fa­cil­ity.

But there are sig­nif­i­cant gaps in the records caused by a myr­iad of fac­tors:

The fed­eral gov­ern­ment can­not force states to re­port con­vic­tion data, and many don’t sub­mit all of the rel­e­vant records.

Congress has not spent more than $1 bil­lion of au­tho­rized fund­ing for a pro­gram meant to in­cen-

tivize states to im­prove their re­port­ing of court records.

Dif­fer­ences in how states and mil­i­tary courts clas­sify cer­tain crimes, such as mis­de­meanor do­mes­tic vi­o­lence of­fenses, re­sult in some con­vic­tions be­ing left out.

Am­bi­gu­ity in fed­eral law about cer­tain cat­e­gories of peo­ple who shouldn’t be able to buy guns leads to in­con­sis­tent re­port­ing.

De­spite these is­sues, the back­ground check sys­tem, com­monly called NICS, has pre­vented about 2.5 mil­lion peo­ple from buy­ing guns since it launched in 1998, which is about 1 per­cent of the 250 mil­lion trans­ac­tions it pro­cessed through the end of last year.

The sys­tem has im­proved in many ar­eas since Congress in 2007 ap­proved a $1.3 bil­lion pro­gram to en­cour­age states to im­prove their re­port­ing. The bill was prompted by the 2007 shoot­ing at Vir­ginia Tech Univer­sity that left 32 dead and was car­ried out by a stu­dent who pur­chased weapons af­ter hav­ing been de­ter­mined by a court to be dan­ger­ously men­tally ill.

But only $110 mil­lion of that money had been dis­trib­uted by the fed­eral gov­ern­ment by the end of last year, as Congress and the Bush and Obama ad­min­is­tra­tions in their an­nual bud­gets rou­tinely sought and dis­trib­uted less money for state re­port­ing grants than the law au­tho­rized.

The man who at­tacked the Suther­land Springs church, Devin Pa­trick Kel­ley, had a mil­i­tary court do­mes­tic vi­o­lence con­vic­tion that should have barred him from buy­ing a gun. Yet he pur­chased one gun each year since 2014, ac­cord­ing to of­fi­cials with the fed­eral Bureau of Al­co­hol, To­bacco, Firearms and Ex­plo­sives.

U.S. Sen. John Cornyn, R-Texas, last week an­nounced he will push leg­is­la­tion to strengthen the re­li­a­bil­ity of the back­ground check sys­tem, and many mem­bers of Congress have called for bet­ter re­port­ing of mil­i­tary con­vic­tions.

Pre­vi­ous ef­forts to bol­ster the NICS have fal­tered be­cause of po­lit­i­cal and lo­gis­ti­cal hur­dles. The Na­tional Ri­fle As­so­ci­a­tion, which fa­vors back­ground checks over other forms of gun con­trol, has played a “mixed role,” said Lind­say Ni­chols, fed­eral pol­icy di­rec­tor for the Gif­fords Law Cen­ter to Pre­vent Gun Vi­o­lence.

While the in­flu­en­tial NRA has pub­licly sup­ported mea­sures like the 2007 law, it has also pushed to ex­empt more groups from the pro­hib­ited gun buy­ers list, pro­tect loop­holes that al­low buy­ers to cir­cum­vent the back­ground check sys­tem, and de­feat spend­ing mea­sures that could im­prove it, Ni­chols said.

“The back­ground check sys­tem has been ef­fec­tive to the ex­tent that the records are there,” Ni­chols said. “But as we have seen cer­tainly in the Suther­land Springs shoot­ing, ev­ery time a record does not ex­ist, it has the po­ten­tial to lead to great tragedy.”

Even if the data­base were com­plete, pur­chasers can evade back­ground checks al­to­gether through a pro­vi­sion known as the “gun show loop­hole,” which ex­empts small pri­vate sell­ers from hav­ing to use the FBI sys­tem.

“Get­ting the re­port­ing im­proved is im­por­tant, but it can’t be used for a smoke screen to hide the fact that this other huge loop­hole ex­ists,” Ni­chols said.

Back­ground in­ves­ti­ga­tions

The 1993 Brady Hand­gun Vi­o­lence Pre­ven­tion Act — named af­ter James Brady, the press sec­re­tary who even­tu­ally died of in­juries suf­fered in a 1981 as­sas­si­na­tion at­tempt against Pres­i­dent Ron­ald Rea­gan — es­tab­lished the NICS, which launched four years later.

A gun back­ground check in­cludes searches of the In­ter­state Iden­ti­fi­ca­tion In­dex, which tracks state court records; the Na­tional Crime In­for­ma­tion Cen­ter, which com­piles many non­con­vic­tion records like do­mes­tic vi­o­lence pro­tec­tion or­ders; and data­bases set up specif­i­cally for the NICS for records not cap­tured by the other two.

In most states, in­clud­ing Texas, fed­er­ally li­censed gun sell­ers call the FBI to con­duct the search. For “point of con­tact” states like Cal­i­for­nia, which have stronger laws on gun pur­chases than the fed­eral gov­ern­ment, the sell­ers call a state law en­force­ment of­fice that per­forms the NICS check.

A vast ma­jor­ity of the checks take only a cou­ple min­utes, but am­bi­gu­i­ties in a buyer’s his­tory can re­sult in a length­ier in­ves­ti­ga­tion. If the probe goes be­yond three days, fed­eral law al­lows the store to sell the guns while the case is re­solved. If a pur­chaser is later found to have been in­el­i­gi­ble, the Bureau of Al­co­hol, To­bacco, Firearms and Ex­plo­sives is re­spon­si­ble for seiz­ing the weapons.

Do­mes­tic vi­o­lence

For most types of crim­i­nal of­fenses, fed­eral law only pro­hibits peo­ple from buy­ing firearms if they have been con­victed on felony charges. But for do­mes­tic vi­o­lence, mis­de­meanor of­fend­ers are also barred.

Be­cause states clas­sify do­mes­tic vi­o­lence charges dif­fer­ently — some do not even have a spe­cific charge for fam­ily vi­o­lence and in­stead charge abusers with as­sault and bat­tery — the FBI faces sig­nif­i­cant chal­lenges in de­ter­min­ing which mis­de­meanor records should trig­ger the pro­hi­bi­tion on buy­ing guns, and it fre­quently has to fol­low up with state and lo­cal of­fi­cials as cases come up.

The dif­fi­culty in in­ter­pret­ing do­mes­tic vi­o­lence cases re­sults in longer back­ground check in­ves­ti­ga­tions, a 2016 re­port by the Gov­ern­ment Ac­count­abil­ity Of­fice showed. For about 30 per­cent of the 59,000 mis­de­meanor do­mes­tic vi­o­lence of­fend­ers who tried to buy guns be­tween 2006 and 2015, the in­ves­ti­ga­tions took longer than 30 days.

Be­cause gun sell­ers can — but are not re­quired to — sell guns to pur­chasers whose cases take longer than three days to ad­ju­di­cate, more than 6,200 pro­hib­ited do­mes­tic vi­o­lence of­fend­ers were able to buy guns dur­ing that 2006-2015 pe­riod, the re­port found.

Only 12 states, in­clud­ing Texas, proac­tively flag mis­de­meanor court records that likely pro­hibit con­victs from buy­ing guns in the fu­ture, the Na­tional Con­sor­tium for Jus­tice In­for­ma­tion and Statis­tics found in an­other re­port.

Non­crim­i­nal records

An­other ma­jor gap in the NICS records is for events that should dis­qual­ify peo­ple from buy­ing guns but don’t in­volve crim­i­nal con­vic­tions.

For in­stance, fed­eral law pro­hibits all abusers of il­le­gal drugs, not just those who have been con­victed on drug charges, from buy­ing guns. That means state records show­ing some­one has ad­mit­ted to drug use or failed a drug test are sup­posed to be en­tered into the NICS in­dexes.

The num­ber of those records in the data­base has in­creased dra­mat­i­cally since the 2007 law, from about 5,600 to al­most 23,000. But as of the end of 2016, 26 states had never sub­mit­ted in­for­ma­tion from a non­crim­i­nal drug use case for in­clu­sion in the NICS data­base, ac­cord­ing to a re­port by the Na­tional Con­sor­tium for Jus­tice In­for­ma­tion and Statis­tics.

Peo­ple sub­ject to pro­tec­tive or­ders for do­mes­tic abuse are also pro­hib­ited from buy­ing guns. While states con­sis­tently re­port pro­tec­tive or­der data to the Na­tional Crim­i­nal In­for­ma­tion Cen­ter, most do not con­sis­tently flag them with a “Brady in­di­ca­tor” that au­to­mat­i­cally trig­gers a pro­hi­bi­tion on gun pur­chases.

It is dif­fi­cult to de­ter­mine whether or­ders with­out the in­di­ca­tor should pre­vent some­one from buy­ing guns be­cause the pro­hi­bi­tion only ap­plies to pro­tec­tive or­ders in which the ac­cused abuser is the spouse, ex-spouse, par­ent or co­hab­i­tant of the vic­tim.

In 2015, only about 37 per­cent of pro­tec­tive or­ders con­tained the in­di­ca­tor, ac­cord­ing to the Gov­ern­ment Ac­count­abil­ity Of­fice re­port.

The man who at­tacked the Suther­land Springs church, Devin Pa­trick Kel­ley, had a mil­i­tary court do­mes­tic vi­o­lence con­vic­tion that should have barred him from buy­ing a gun. Yet he pur­chased one gun each year since 2014, ac­cord­ing to of­fi­cials with the fed­eral Bureau of Al­co­hol, To­bacco, Firearms and Ex­plo­sives.

JAY JANNER / AMER­I­CAN-STATES­MAN

In­ves­ti­ga­tors work at the scene in the hours af­ter the mass shoot­ing at First Bap­tist Church in Suther­land Springs. U.S. Sen. John Cornyn, R-Texas, said last week he will push leg­is­la­tion to strengthen the re­li­a­bil­ity of the back­ground check sys­tem.

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