Washington – The Obama administration coupled its move this week to tighten gun laws with a plea to Connecticut and other states for help to strengthen a flawed system used to screen gun buyers.
The system depends on states to provide the FBI with information about criminals, certain mentally ill individuals and others barred from owning a firearm. But flaws can undermine states’ efforts to regulate gun sales, even those of Connecticut, which has some of the strictest gun laws on the books.
Federally licensed dealers are required to run computerized background checks on potential gun buyers through the National Instant Criminal Background Check System, or NICS.
The system depends on voluntary reporting by states of those who, under federal law, are prohibited from purchasing a gun. Among the classes of people barred from buying a gun are felons, those involuntarily committed to a mental institution or determined to lack the mental capacity to manage their own affairs, fugitives, illegal immigrants and those convicted of misdemeanors involving domestic violence.
But reporting by states to NICS is uneven, especially when it comes to mental health records.
Some states, including New Hampshire and Vermont, have submitted virtually no mental health records. Massachusetts has only recently reported information on those prohibited from possessing a gun for reasons relating to mental health. Connecticut began submitting mental health records to NICS in 2007, even though the system was inaugurated in 1998.
This week, Attorney General Loretta Lynch wrote Gov. Dannel P. Malloy and the nation’s other governors asking them to step up the quantity and quality of information submitted to NICS.
“The information contained within the databases accessed by the NICS is far from complete,” Lynch wrote. “The NICS is a critical tool in keeping firearms out of the hands of prohibited persons, but it is only as effective as the information entered into the databases upon which it relies.”
The centerpiece of Obama’s latest gun safety initiatives is a move to define individuals who sell firearms at gun shows or over the Internet as “engaged in the business” of gun sales and required to obtain a federal license and conduct NICS background checks on purchasers. Obama’s plan would expand the definition of a gun dealer, creating a presumption that people who sell guns must comply with federal requirements unless they clearly fall under narrow exceptions for hobbyists or collectors.
Lynch told the nation’s governors that the FBI would release information, which is not currently made public, “on the number of records each state has submitted to the NICS Index.”
An official for the Malloy administration said Connecticut already submits all the reports the FBI asks for and expects to be the beneficiary of better reporting nationwide.
But Connecticut, considered by many gun control advocates to be the gold standard when it comes to firearms regulations, is not among the top states when it comes to submitting mental health records to NICS, says Everytown for Gun Safety, the gun-control group founded by former New York Mayor Michael Bloomberg.
Everytown’s latest “Fatal Gaps” report, released last month, said Connecticut has submitted 22,329 mental health records to NICS. The group obtained this information through a Freedom of Information request to the FBI.
Everytown estimated the state should have submitted an additional 6,700 mental health records, based on a methodology that assesses each state’s performance by comparing it with other states after controlling for population.
Malloy spokesman Devon Puglia said, “We work closely with the federal government on these matters and appreciate the attorney general’s letter. [Connecticut’s Department of Emergency Services and Public Protection] has been and will continue to work aggressively on this issue, and we support the White House on these efforts.”
Connecticut is one of two states – the other is Illinois – that have signed a memorandum of understanding with the federal government that mandates mental health information will be used only for gun background checks. Unlike 21 other states, Connecticut does not provide NICS with records of individuals required by courts to have outpatient treatment.
Everytown for Gun Safety said 270,297 background checks were conducted in Connecticut in 2014.
Since reporting is voluntary, the federal government has offered financial incentives to states that comply, an average of about $28 million in grants every year. Connecticut received a total of $4.9 million in NICS Act Record Improvement Program (NARIP) grants in 2012 and 2013.
It is also among a handful of NICS “Point of Contact” states that conduct some or all of the NICs checks for firearm purchases within their states. In her letter to the nation’s governors, Lynch said she wanted to express her “profound gratitude” to those states.
The ‘no-fly’ loophole
The NICS system was established by the Brady Handgun Prevention Act of 1993. As part of the new gun safety initiatives, the Obama administration has clarified medical privacy rules to allow states to disclose “minimum necessary identifying information” about individuals who have been involuntarily committed to a mental institution or lack the mental capacity to manage their own affairs.
“The new modification is carefully and narrowly tailored to preserve the patient-provider relationship and ensure that individuals are not discouraged from seeking voluntary treatment,” the new rule says.
It is expected to encourage states to submit more mental health information to NICS.
But Obama, Malloy and other Democrats see a major gap in the NICS system: It does not include among the classes of people prohibited from purchasing a firearm those on the “No-Fly List” of suspected terrorists or on a much larger Terror Watch List. The ACLU estimates more than 1 million people, mostly foreigners living overseas, are on a consolidated list of suspected terrorists.
The FBI does run the names of prospective gun buyers through that consolidated list. Testifying in Congress last month, FBI Director James Comey said the FBI is alerted when there is a match.
“And then we do an investigation to understand, are there disqualifiers that we’re aware of that could stop the transaction? And if the transaction goes through, the agents who are assigned to that case, to that subject, are alerted to it so they can investigate,” Comey said.
Stopping that gun sale is not assured, however.
Malloy has asked for the ability to use the list to prevent those on it from buying firearms in Connecticut. The terrorist list, which is constantly updated, is classified.
Malloy, in Washington this week for the rollout of the president’s gun-safety initiatives, said he had several conversations with administration officials, including a “brief” talk with Lynch, about his proposal.
Mark Gius, a professor of economics at Quinnipiac University, recently wrote an essay for the London School of Economics entitled, “President Obama’s Latest Executive Actions on Gun Control are Too Little, Too Late.”
He says the president felt pressure to act, even if what he can do to tighten gun laws is limited.
“He thought he had to do something and that’s all he could do,” Gius said. “Unfortunately his hands are tied.”
He said that even with the expansion of background checks, many guns will continue to be sold by individuals who don’t have federal licenses or conduct NICS checks.
Gius also says other steps taken by the president, such as improving NICS technology or investing in gun safety technology, require funds that can only be approved by Congress – and that’s not likely to happen.
Nor, Gius said, is the GOP-controlled Congress likely to provide an additional $500 million for mental health care, another Obama proposal.
Connecticut has some of the toughest gun laws in the nation, requiring gun buyers to obtain eligibility certificates and requiring background checks on all sales at gun shows.
“I honestly think it’s not going to make much of a difference in Connecticut,” Lindsay Nichols, an attorney with the San Francisco-based Law Center to Prevent Gun Violence said of the president’s new gun-control measures.
Yet Nichols agrees with Malloy, who said the president’s actions will reduce the number of illegally obtained guns coming to Connecticut from out of state.