FBI database no surety in gun sales
Posted May 9, 2013
Updated May 10, 2013
Raleigh, N.C. — On April 16, 2007, Virginia Tech student Seung-Hui Cho killed 32 people and wounded 17 others in a shooting rampage on the school's campus. Authorities later discovered that a Virginia court had previously determined that Cho suffered from a mental illness, prohibiting him from owning a gun, but the court failed to report it to the FBI.
"So, when he went to buy a gun, it didn’t show up in a background check system that the FBI administers," said Jeff Welty, an assistant professor with the University of North Carolina School of Government, which advises government officials on the law.
After Virginia Tech, the federal law was strengthened, and states were supposed to get better about entering cases like Cho's into a federal database for background checks, but that's not happening everywhere.
“There’s still a large number of states that contribute no mental health records based on privacy or technological barriers,” Welty said.
The FBI's database – the National Instant Criminal Background Check System – allows firearms dealers to perform background checks before selling guns. The database includes information about an individual's citizenship status, history of substance abuse or commitment to a mental hospital, criminal records, including domestic violence protection orders, and dishonorable discharge.
States can enter information into the database, but the rules vary about who is deemed mentally unfit to buy a gun. Some states submit no information to the database.
While North Carolina law requires courts to red flag someone who has been deemed incompetent, some gun shop owners and lawmakers are concerned about whether that information is being entered into the federal database quickly enough or if it is being entered at all.
Gun shop owner: ‘We got a real uncomfortable feeling’
The Virginia Tech case exposed a loophole in the system – a loophole that still concerns Raleigh gun shop owner Dave Beck. Six years ago, he refused to sell a gun to a customer who was eventually arrested and became the subject of a federal court case.
On May 2, 2007, Beck contacted an agent with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives to report a suspicious customer who had come into his shop, Plaza West Jewelry and Pawn.
The man, Barry Lewis, asked to buy a semi-automatic shotgun and eventually settled on a Remington 1100 shotgun, according to a U.S. District Court criminal complaint.
Beck handed him the Firearms Transaction Record paperwork to fill out so he could make the purchase, but Lewis explained that he was dyslexic and could not fill out the form. After Beck suggested he come back with a friend who could help him, Lewis said he could fill out the paperwork after all.
Lewis proceeded to answer the questions on the form, including No. 11, which asks potential buyers if they have ever been deemed “mentally defective” or committed to a mental institution. Lewis answered “no.”
He signed the form and handed it to Beck, along with a Florida driver’s license. Beck explained that he could not sell the gun without North Carolina identification. Lewis then said he “would go and get a North Carolina identification card and come back the next day,” according to the criminal complaint.
“We got a real uncomfortable feeling, and we chose to decline it. We didn’t have to sell it,” Beck said.
Lewis eventually returned to Beck’s store and tried to buy a gun but was once again turned away. As he left, Lewis “said he’d go somewhere else,” Beck recalled.
Lewis had gone somewhere else a week earlier and bought a Romir/Cugir 7.62mm rifle, even though the courts ruled he couldn't own one because he was "adjudicated mentally defective” and had been committed to Dorothea Dix Hospital, a state-run mental institution, on at least two prior occasions, according to court records.
“This should have been something readily disclosed when the background check was run,” Beck said. “We are totally dependent on law enforcement. We have no way to know this.”
According to North Carolina law: "Whenever a judicial official has found a person to be a danger to himself or others and the person has been involuntary committed and required to undergo either inpatient or outpatient mental health treatment, or when an individual is found not guilty by reason of insanity or incompetent to proceed to trial in a criminal case, North Carolina law requires these acts to be reported to NICS. This information will then be used in determining if a person can purchase a firearm."
Acting on Beck’s tip, an ATF special agent investigated Lewis and determined there was probable cause that he violated the law by giving false statements on the Firearms Transaction Record paperwork, which he filled out at both gun shops he visited. Authorities also discovered that he had the Romir/Cugir 7.62mm rifle, as well as a Gorosabel shotgun in the trunk of his father’s car.
On May 7, 2007, agents arrested Lewis and charged him with two counts of making a false statement in the attempted acquisition of a firearm and possession of a firearm by a prohibited person. He was sentenced to 30 months in prison and was ordered to be supervised for three years after his release. He also had to pay a $500 fine.
Lawmaker: ‘Previous legislation is a little vague’
By current standards, Lewis might get flagged in a background check, but even in North Carolina, a state with high marks when it comes to keeping the mentally ill from getting guns, there is a gray area.
North Carolina has submitted approximately 35,000 records to the national background check database, according to the State Bureau of Investigation. But Wake County Sheriff Donnie Harrison says it’s not as simple as typing a person’s name into a computer to get their mental or criminal history.
The Wake County Clerk of Court will go back to January 2002 to report records of people who are prohibited from owning guns for mental health issues, but that might not be the policy for every clerk of court across the state.
“It may be different, and I don’t know the answer to that, but it may be different,” Harrison said.
Welty says there is a lot of variability and uncertainty when it comes to reporting.
“It doesn’t say how far back they are supposed to go (or the) time frame for reporting,” he said.
Some lawmakers are trying to fix lingering loopholes. Currently, if a judge rules someone incompetent or insane, the local clerk should alert federal officials, but the law says that must happen "as soon as practicable."
“Previous legislation is a little vague on how quickly,” said Rep. Paul Luebke, D-Durham.
Republicans and Democrats are both pushing for a 48-hour reporting period. However, bills on both sides of the aisle are tied to controversial gun legislation. Luebke says his bill probably won't move, but the 48-hour reporting provision might.
“Every time there’s been a mass killing … there’s always a chance that someone will try to purchase a gun legally and go out and shoot a bunch of people, and this at least captures that part of the group,” Luebke said.
If the 48-hour rule passes in North Carolina, only four other states would have faster turnaround times. Arkansas, California and Michigan require it immediately, and Virginia requires it be the end of the next business day.
Uniform laws could also help. According to the Congressional Research Service, 25 states have no laws requiring states to report mental health issues to the federal gun database, including North Carolina’s neighbor, South Carolina.
North Carolina law does allow a person involuntarily committed for mental health treatment to petition a court for his or her eligibility to possess a firearm to be restored. However, many gun rights groups don't like that the state's law that lumps people who are involuntarily committed and getting outpatient help into the same category as those found incompetent.
Secretary of Public Safety Kieran Shanahan says he sees technology as one of the biggest barriers nationwide.
“I think, generally, Americans value the Second Amendment, the right to keep and bear arms, but I think most people would agree that we want to make sure that only those people who are lawfully entitled are doing it,” Shanahan said. “We have to build systems that talk to one another.”