Badly flawed background check system fails to contain firearms sales

Introduction

Editor’s note, September 19, 2013: The tragic shootings this week at the Washington Navy Yard have rekindled debate over what more might be done to keep firearms from the hands of troubled individuals. Gunman Aaron Alexis had apparently struggled with a variety of mental health issues, but none serious enough to trigger the federal Brady Act’s existing bar on firearms purchases by those who have been ordered into mental health treatment by a judge. Lawmakers are now discussing new initiatives, but face a high bar, as legislation mandating major changes in the federal background check system died earlier this year. As the Center for Public Integrity reported in 2011, the system is plagued by a host of data problems, loopholes and disputes over just who should be barred.

Like many states, Maine depends on the FBI to conduct background checks of people who want to acquire firearms from the state’s federally licensed gun dealers.

And like many states, Maine is a slacker in supplying the records that the FBI depends on to run those checks.

That’s how Raymond Geisel got his guns, including a Glock Model 17 pistol and a semi-automatic version of the AK-47 assault rifle. Geisel had previously been committed to a psychiatric hospital in Bangor, which made him ineligible under federal law to buy or possess a gun. But because state officials had not supplied records of his commitment to the FBI, Geisel passed background checks without being flagged.

Eventually, the law caught up with Geisel. He was arrested in Miami in August 2008 for making threats against Barack Obama, who was campaigning in south Florida around the same time. Another gun that Geisel had acquired in Maine was subsequently recovered by federal agents in his hotel room, along with a combat-style hatchet, armor-piercing ammo and canisters of tear gas.

The data gap that Geisel exploited should have been closed by now. Four years ago, after the massacre at Virginia Tech exposed gaps in the National Instant Criminal Background Check System (NICS), Congress and the Bush administration took decisive action to shore up the joint state-federal operation, which is supposed to keep guns away from the deranged and the dangerous.

But the so-called NICS Improvement Amendments Act of 2007 has clearly not improved things much at all, an iWatch News investigation found. And that’s far from the only problem. The federal background check system, conceived as a first line of defense against gun crime, remains riddled with data gaps, loopholes and disputes over just who should be barred – a troubling conclusion brought into sharp relief by the January shooting spree in Arizona that killed six and wounded 13 others, including Rep. Gabrielle Giffords.

A dozen years after it went fully operational, NICS is still a patchwork operation that, despite a huge data base, often relies on massively incomplete information.

Millions of pertinent documents – from mental health and drug abuse records to the case records of accused felons – remain outside the system, in boxes in courthouse basements or in legal limbo because of state and local laws that prohibit sharing with the feds. As a result, guns are getting into the hands of people who should never possess them.

The mess reflects policy differences with states over which records should be supplied as well as a lack of money and political will and computer prowess to hook up aging state and federal networks.

Many millions of records have been added over the years – and many millions spent on overhauling the technology to get it there. Yet officials are still far from having such basic information as a comprehensive list of everyone who is barred under the law from buying guns. One reason is because the NICS system was bootstrapped to two existing federal data bases that were not designed to conduct background checks.

“We have no idea how many prohibited people there are in the United States,” says John Strong, chief of the FBI section overseeing the NICS operation, in an interview at the NICS headquarters in Clarksburg, W.Va. “We’re not even close to being able to know.”

Background on background checks

Federal background checks are rooted in the assassination attempt on President Ronald Reagan in March 1981 by John Hinckley Jr.; the system was authorized in 1993 in a law named for the former Reagan press secretary, James Brady, who was wounded in the attack. Until then, gun checks were left to the states; 21 continue to do their own checks at least for some guns.

The federal law has 10 categories of “prohibited persons,” including felons, “mental defectives,” drug users, people subject to restraining orders and convicted of misdemeanor domestic assault, fugitives and illegal immigrants, among others.

Millions of checks are done every year, but just a small fraction, between 1 and 2 percent, turn up a problem. In 2009, the latest data available, only about 150,000, or 1.4 percent, of the 10.8 million applications to purchase firearms through a federal dealer were denied, according to a study published last October by the Justice Department’s Bureau of Justice Statistics.

Convicted felons account for the largest share of those rejected; persons with a record of domestic violence, while growing in recent years, are a distant second.

Lying about one’s criminal history or background on the form to purchase guns is fairly common – and a federal offense – but hardly anyone is ever prosecuted. Among the 67,000 people who failed background checks conducted directly by the FBI in 2009, fewer than 70 ever faced criminal charges, a Justice Department-funded study published in April found. Justice officials cited a lack of resources.

What’s more, several thousand people each year who are prohibited from buying guns are cleared to buy them anyway. That is because gaps in the FBI criminal history data base prevent examiners from completing background checks within the three-day time limit set by federal law.

The impact of the Brady law is also the subject of debate. Proponents say the act is one of an amalgam of factors that has brought violent crime down over the last two decades. But some academics believe the effect has been minimal because criminals have been able to get guns from other sources.

A 2004 report by the Justice Department’s Inspector General found that even agents who regularly investigate gun crime believe that most people who fail background checks are not dangerous, and that the reasons they flunk the check are minor or based on incidents that occurred years in the past. The report cited the case of a man who was rejected because of a 1941 felony conviction for stealing a pig.

The actual number of people denied guns for failing a background check, while rising annually since 2004, is still down by about 25 percent from its peak in 1999, NICS’ first full year of operations.

During that same period, the number of records of prohibited persons in the system has increased six-fold.

Experts say that adds credence to the notion that the really bad guys are getting their guns elsewhere, through unregulated or illegal sources.

“The word went out, ‘You are going to be denied. You might as well find another means of getting it, either through the illicit market or through the legal non-NICS markets, such as gun shows and private transactions,’” says Alfred Blumstein, a crime expert at Carnegie Mellon University.

A seemingly smooth system

To be sure, NICS seems a highly efficient operation, based on the records that it does have.

The NICS headquarters, four hours from Washington on a West Virginia hill top, has the look and feel of a finely honed retail operation. Operators are standing by, 17 hours a day, every day except for Christmas. More than 90 percent of the gun checks are resolved in a phone call that, on average, takes three to five minutes.

The checks involve searching three different federal data bases, including a massive 58-million record FBI repository of state and federal criminal history records, and a separate system with “hot files” of fugitives and persons subject to restraining orders.

A new “NICS Index” was created as a kind of default to include people who would not show up in the other files but who are prohibited from buying guns. These include the dishonorably discharged, mental defectives, illegal immigrants, among others.

Thousands of checks are conducted every day, with a record 98,000 completed on the Friday after Thanksgiving in 2008. Gun sales are booming, with the volume of background checks up 14 percent through April.

Dealers are initially routed through one of three call centers around the country, in Wheeling, W.Va, Barbourville, Ky., and Fort Worth, Texas, manned by contract employees who resolve about 70 percent of the checks. Calls are transferred to the FBI center in Clarksburg, W.Va., only when a would-be buyer has been flagged by a document in the system. (The contract employees do not see the actual documents because they are not FBI employees.)

The case is then handed off to an FBI “legal examiner” who plumbs the record systems to figure out whether the deal can legally go through. On the surface, it is monotonous work.

On a recent morning, an examiner gave the green light to a man once convicted of DWI (“not disqualifying”) and another who had been charged with narcotics possession (the charges were dismissed).

A third buyer had a misdemeanor disorderly conduct charge on his record, not a disqualifying offense unless it involved domestic violence, which a quick check of the system showed, it did not.

“That transaction will be a proceed,” the examiner says, over and over again.

The mental health loophole

The horrific April 2007 shootings at Virginia Tech focused new attention on the NICS’ lack of access to many relevant mental health records. Seung-Hui Cho murdered 32 people with guns he acquired despite a documented history of court-ordered mental health treatment – records of which never made their way into the background check system. The obstacles to accessing mental health records were numerous. State privacy laws often prohibited the sharing of documents with law enforcement, absent consent or a court order. Most states did not have a single contact person to collect the information and ship it to NICS. The FBI’s Strong said that in some states the bureau still has to check with individual psychiatric hospitals to stay on top of the latest cases.

The NICS improvement act, signed by President George W. Bush in January 2008 – and supported by the National Rifle Association – theoretically provided hefty federal grants to help states overhaul their computer systems in order to get more mental health and other records into the NICS. State legislatures responded by starting to rewrite privacy laws that had limited information-sharing. Under the 2007 law, Congress authorized $875 million over five years for states willing to overhaul their systems and get records to the FBI quicker. But in the ensuing only about 5 percent of the money has actually been appropriated.

Using one of those federal grants, the state of New Jersey expects to have a fully automated records system up and running next year that could deliver thousands of mental health records to the NICS.

At the same time, though, a requirement pushed by the NRA that states offer the mentally ill a chance to win back their gun rights once they return to health has created a major new stumbling block. The Violence Policy Center, a Washington-based gun control group, charged that the measure showed how the legislation had been “hijacked by the gun lobby.”

Experts say such a formal process for restoring those gun rights may be legally required under the Second Amendment. But the idea has stoked an often emotional and fractious debate that has left state legislatures stalemated. As a result, only eight states have thus far won a share of the federal money.

“These issues are so sensitive that they just polarize people,” says Kristen Mahoney, president of the National Criminal Justice Association, a Washington-based nonprofit advocacy group of state and local law enforcement officials. She is also a senior crime-control adviser to the governor of Maryland, Martin O’Malley.

In 2008, Maine became one of the first states to give the formerly mentally ill a clear pathway to buying guns again. But its legislature also stopped short of granting the right to everybody, drawing the line at people who had been found not guilty by reason of insanity.

The move seemed reasonable to its supporters: the few Maine cases in which the insanity defense was employed successfully have been unusually grisly, including the murder trial of a man who gained national attention by attacking four elderly nuns in a chapel in Waterville, stabbing and bludgeoning two of them to death.

But Washington decided the state did not go far enough.

“The NICS Section declares unless your law is 100 percent in compliance with federal law then we are not going to give you any money to build these systems,” says Anne Jordan, the state’s public safety commissioner at the time the law was passed.

Jordan says she found the state’s approach to be reasonable and appropriate. “Maine is a very traditional gun rights state, a huge tradition of hunting in this state,” she says. “The legislature was very aware and careful where it drew the line in the law.”

The Bureau of Alcohol, Tobacco, Firearms and Explosives said the agency does not comment on individual applications.

Illinois qualified for a federal grant but its own system for collecting mental health records is such a mess that it could take many years to improve the situation.

Mental health data that is available there is rarely reported in a systematic way. Only 41 of the 130,000 licensed practitioners and clinicians in Illinois are reporting adjudications of mental deficiency. The state’s judiciary has no standard practice in place to have judges instruct clerks to report court adjudications of mental incompetence. Records at the state’s mental health department are not automated. The state police background check system is 40 years old and showing its age.

“It is a Tower of Babel,” says Elliot Fineman, chief executive of the National Gun Victims Action Council, a Chicago-based advocacy group, which monitors efforts by the state of Illinois to improve its background check system.

Illinois has submitted 5,000 mental health records to NICS. Fineman estimates that total is just 5 percent of the number held by state agencies and courts.

State police say they are trying to improve the system as quickly as possible. “The biggest hurdles continue to be advocacy concerns with regard to dissemination of names of prohibited individuals and the pace with which much need technical improvements can be made,” said Illinois State Police spokesman Scott Compton in an e-mail. “The ISP is working cooperatively to improve processes on both fronts.”

Beyond records, the debate raises broader questions over defining categories that should allow for denial of a gun purchase. The federal law’s definition of mental illness, for example, is a narrow one, limited to people who have been involuntarily committed or found insane or incompetent by a court. Large segments of the population – including alleged Tucson shooter Jared Lee Loughner, a diagnosed schizophrenic — are not captured by that system.

Criminal histories and other loopholes

The criminal history data base the FBI uses to check for felons has its own troubled history. The good news is that the system contains millions of easily accessible arrest records. The bad news is that in about half of the cases there is no information about how the cases turned out – whether the person was found guilty or not or even prosecuted at all.

Without that information, the FBI cannot make a final decision to approve or reject an application. Moreover, under the law, a dealer has the right to transfer a firearm to a purchaser after three days, even if the FBI has not completed the background check.

What that means at the NICS operation center in Clarksburg is that missing disposition information begins a race against time.

Calls are placed to local courts where the initial charges were filed, in the hope of finding a clerk willing to run down documents. Often, the documents are in storage. Sometimes, they have been destroyed.

In most cases, the examiners beat the clock. The FBI digs out thousands of disposition records each year – and sends the information back to state agencies to update their records.

But if the deadline is not met the dealer can transfer the firearm to the purchaser even if the check is not completed, which happens hundreds of times a year. While declining since NICS was launched, the number – about 3,000 in 2010 – remains a concern.

The FBI overnights the names of “delayed denials” to the ATF, which is responsible for retrieving the guns, but which has been criticized for devoting inadequate time and resources to the problem.

“ATF views delayed denials as a top priority and is committed to act quickly in the interest of public safety and preventing violent crimes,” an agency spokesman said in an e-mail. Since the inspector general report, ATF has issued new guidelines on handling such cases, including a requirement that initial action be taken within 48 hours of receipt of the referral, the spokesman said, adding that about 10 percent of the referrals turn out not to involve a person who is prohibited from buying a gun.

Drug abusers and addicts are also prohibited from buying guns under the law – but the law has been interpreted to bar only those who have been convicted of drug crimes or charged on multiple occasions. And that no doubt leaves a lot of addicts and abusers out. More and more people have been blocked from buying guns because they are subject to restraining orders designed to protect family members. But the prohibition ends when the restraining orders lapse, which advocates argue still leaves potential victims vulnerable.

In addition, some criminals game the system by saying they are someone else. NICS relies on government-issued identification cards like driver’s licenses that are easily and often faked. A 2001 Government Accountability Office report revealed that GAO investigators were able to purchase firearms in five states — Virginia, West Virginia, Montana, New Mexico and Arizona — using counterfeit driver’s licenses with fictitious identifiers. Some law enforcement officials believe the only sure-fire identification of a prospective gun purchaser would be through fingerprints, which would be read at a gun store by a scanner, and then compared against the FBI’s automated fingerprint database. But such an idea doesn’t even seem to be on the table for consideration.

Gun shows, straw buyers and gaming the system

John Patrick Bedell was one of those tripped up by the background check system. But he also tragically found a way around it.

One of the guns that Bedell used to shoot two police officers at a checkpoint outside the Pentagon in March 2010 – before the officers returned fire and killed him — was purchased in a private sale at a gun show in Las Vegas.

Bedell was able to acquire the 9mm Ruger pistol even though he had a history of mental illness, and had been rejected by a gun dealer in California a few weeks earlier.

That’s because private sales at gun shows – and other venues — are essentially unregulated, with no requirement that the sellers have a license or keep records, and no requirement of a background check for the people they do business with, although requiring them anew has been frequently proposed.

Gun-control groups see private sales at gun shows as a massive loophole for criminals and other prohibited persons to arm themselves. The ATF has called gun shows “a major venue for illegal trafficking.” Several studies have found them to be a magnet for gang members from Mexico and California. The Violence Policy Center has referred to gun shows as “Tupperware Parties for Criminals.”

American-born al-Qaida member Adam Gadahn suggested in a video message over the Internet earlier this month that would-be terrorists check out gun shows as a way of getting easy access to arms to launch attacks in the United States.

”America is absolutely awash with easily obtainable firearms,” Gadahn said. “You can go down to a gun show at the local convention center and come away with a fully automatic assault rifle, without a background check, and most likely, without having to show an identification card. So what are you waiting for?”

Critics say gun shows are also rampant with straw purchasers, people who use their own clean records to pass background checks and buy guns for felons and other prohibited persons. While requiring background checks might not directly address the issue of straw buyers, some academics believe that creating an atmosphere of tighter regulation would discourage such sales.

Ann Trina Collins, 37, was a working mother of four, who bought three semi-automatic pistols and three Romanian-made knock-offs of the AK-47 at a gun show near Cleveland.

Collins told investigators that she went to the show because she was having problems with people trespassing and damaging property at her home, and wanted some protection.

But one of the pistols ended up in the possession of her estranged husband, who had a string of felony convictions, and another weapon showed up at the scene of a felonious assault and attempted murder. An investigation turned up the fact that she had bought other guns for her husband.

Collins was convicted of illegally using her clean record to purchase guns for others, and was sentenced to 48 months in prison. She is appealing.

“Whenever one speaks of restricting gun rights, the immediate response is that the result will be that only criminals will have guns if such restrictions are put in place,” U.S. District Judge John R. Adams said in sentencing Collins. “Unfortunately, it appears that even with regulations, guns will inevitably end up in the hands of criminal due to persons like the defendant circumventing the existing restrictions.”

Washington dithers

In an op-ed in the Arizona Daily Star two months after the Tucson shootings, Obama launched his own campaign for tougher laws.

He said the NICS system had not been “properly implemented.” He called for enforcing existing laws to ensure that data supplied by the states to NICS is complete; rewarding states that provide “the best data”; and making the system “faster and nimbler” for sellers “who want to do the right thing.”

“I want this to at least be the beginning of a new discussion on how we can keep America safe for all our people,” Obama wrote.

The NRA responded that it welcomed such a discussion – so long as it focused on prosecuting criminals and fixing what it said were deficiencies in the mental health system. “Any proposals to the contrary are not a legitimate approach to the issue,” NRA officials said in a letter to Obama in March.

Since then, progress has been marked by periodic meetings at the Justice Department where gun-control advocates make a case for tougher laws and policies. Legislation developed by the Mayors Against Illegal Guns — a coalition of more than 500 mayors led by Michael Bloomberg of New York and Boston Mayor Thomas Menino — began surfacing in Congress.

In March, Sen. Charles Schumer of New York introduced the Fix Gun Checks Act of 2011, which would toughen the penalties for states that fail to share the various records the system depends on, as well as mandating cuts in federal crime-fighting grants for the underperformers. The legislation would also extend background checks to virtually all gun sales, routing private transactions at gun shows through a federally licensed firearms dealer or a law enforcement agency.

Schumer’s bill would also broaden the prohibition on drug users to include anyone who has admitted to “using or possessing a controlled substance unlawfully within the past 5 years” — a provision that critics say could also snag many ordinary citizens if strictly enforced.

Rep. Carolyn McCarthy of New York, the co-author of the 2007 NICS amendment law, introduced companion legislation in the House last month that she says would “close some of the loopholes” that have allowed states to shirk their record-reporting duties.

Beyond legislation, Obama is said to be reviewing ways he could tighten up the NICS system through an executive order, including getting federal agencies to turn over more records.

Activists say they regret Obama has not devoted more public attention to the issue. Paul Helmke, the president of the Brady Center to Prevent Gun Violence, has been pushing unsuccessfully for a presidential commission to examine the issues of mental health and gun violence.

“My main disappointment with the administration has been they have not even used the bully pulpit on this issue,” Helmke said, adding that he felt Obama’s election on a strong gun-control platform suggested to him that the nation was ready for a crack down on guns. “It showed me this isn’t as politically radioactive as some people like to think it is.”

The White House says that Obama remains committed and is not backing off the issue. “The President believes we can identify some common sense measures that would improve American safety and security while fully respecting Second Amendment rights,” White House spokesman Eric Schultz said. “And that is why he has directed the attorney general to do just that.”

North Country Blues

Back in Maine, Raymond Geisel spent 16 days in 2003 at the state psychiatric and chemical dependency treatment hospital in Bangor, following an emergency commitment, according to court records.

Starting in 2005, he acquired at least six weapons from licensed gun shops in Maine. In addition to the Glock pistol and the Romanian-made AK-47, he purchased a Smith & Wesson revolver, a variant of the AR-15 assault rifle, and two shotguns.

He had moved to Florida in January 2008. At the time of his arrest, he was taking a 10-day class in Miami, learning to become a licensed bail bondsman.

Classmates overheard him making angry and racist threats against Obama, in one case vowing to “assassinate him myself” if he were elected, according to an affidavit on file in U.S. district court in Miami. Another student said she heard Geisel say he “hated George W. Bush and that he wanted to put a bullet in the President’s head.”

The information made its way to the Secret Service, which interviewed Geisel on Aug. 1, the same day Obama arrived in St. Petersburg to campaign. Geisel was arrested the next day, and charged with making threats against Bush and Obama.

A search of his SUV and his hotel room yielded an astounding cache: military fatigues, hand-held radios, a loaded Smith & Wesson handgun, 40 rounds of Black Talon armor-piercing ammunition, body armor, a stun gun, two canisters of tear gas, and more. The arsenal stunned federal authorities in Maine, who had no access to his mental health records because of a state ban on sharing commitment records with law enforcement.

After Geisel’s arrest, the Secret Service notified the ATF office in Maine, which tied Geisel to purchases of five other guns, which he had left with a friend. Those weapons were later seized.

Geisel pleaded guilty to a charge of possessing a firearm and ammunition after having been committed to a mental institution. He was sentenced to 10 months in prison. He could not be reached, and his attorney declined comment.

He told the Secret Service that he had been a victim of physical and emotional abuse when he was younger. He also said that he had voluntarily checked himself into a mental health facility in Maine, and had sought psychiatric treatment for post traumatic stress disorder.

Observers say the episode shows that making NICS work is not as easy or straightforward as some politicians might suggest.

“This is a perfect example why simplistic enforcement of the law is not working … because we have the federal and state governments out of sync,” said William Harwood, a Portland, Maine attorney, and founder of the Maine Citizens Against Handgun Violence.

“We are a NICS state, not a state that has set up its own system,” he adds. “If we have submitted to being a NICS state, why are we fighting NICS?”

Last month, Maine’s legislature held a hearing on a bill that would put the state in compliance with the federal law, requiring the sharing of all commitment papers and broadening the procedures for restoring rights. It died in committee.

Strong, of the FBI, appreciates the dilemmas that states face in making such judgments.

“There’s probably some folks in the community that say ‘Yeah, that’s something that happened to them 20 years ago, they’ve been a responsible citizen since,’ ’’ he observes. “But do you want to be the judge that signs off on that? That’s a tough one. Do you want to be the legislature that votes for that and then somebody that gets their rights restored has another Virginia Tech type incident? It’s a hard sell.”

Even the most ardent supporters of the background check system question its suitability for catching every worrisome person. Jared Lee Loughner was able to buy a gun from a dealer and pass a check even though he was widely viewed as troubled. Pima Community College police had several contacts with him, and college officials had informed Loughner that he could not return to campus without a mental health clearance.

“If we had at least some human involvement in this process…maybe he would have been stopped. Instead we rely purely on a computer thumbs-up or thumbs-down,” said Helmke of the Brady Center. “The guy could be frothing at the mouth, talking to aliens, and if his record is clear, he gets the gun. There is a problem with a system like that. It is harder for a high school kid to get a job at McDonald’s.”

Rick Schmitt is a Maryland-based freelance writer. This story was funded in part by a grant from the Joyce Foundation.