Since that date, Pepin said, his office has made regular monthly "data extracts" for the FBI regarding felony convictions, domestic-violence convictions and court orders of commitment to mental institutions. The judiciary also provided District Court and Magistrate Court records dating back to 1997, and even further back when the records were available.
Pepin said the GAO never contacted his office. "I do not think that the federal law is intended to have the courts reporting the data. I think they expected the data to come from a statewide entity that is responsible for public safety," he said. "However, it did not appear to us that the reporting was occurring, and since we have the ability to report the cases, we started doing so."
In the last year and a half, his office has sent 234,962 records to the FBI database. An average of 1,030 new records from New Mexico are delivered electronically each month, according to Steve Prisoc, chief information officer for the New Mexico Judiciary.
Background checks for gun sales performed since the summer of 2011 would have turned up relevant records from New Mexico, Prisoc said, but before then, "we were a black hole as far as reporting was going."
Regina Chacon, chief of the state Department of Public Safety's Law Enforcement Records Bureau, acknowledged that New Mexico has been contributing to the NICS only in recent years, but she said the state has provided regular criminal history reports to the FBI since the 1950s. "These checks were done prior to 2011," Chacon said. "They were just done in a different way."
The big difference between past reporting and recent reporting, she said, is that now the state's mental-health commitment orders can be accessed through the federal system.
Mental-health records are a sticky issue. One aspect of the Brady law that confounded New Mexico policymakers is that the language in state laws didn't mesh with the language in federal statutes.
Federal law prohibits a person from possessing a firearm if they have been involuntarily committed to a mental institution or have been "judged to be mentally defective."
In New Mexico, civil involuntary-commitment proceedings and other mental-health hearings are sequestered, which means they aren't strictly a matter of public record, explained Gabrielle Sanchez-Sandoval, an attorney with the state Department of Health. Further, state laws don't equate "involuntary commitment" with a finding of "mental incapacity," she said, and New Mexico no longer recognizes "mentally defective" as a valid legal term.
Most mental-health records that New Mexico reports to the FBI are orders for institutionalization under the state Mental Health and Disabilities Code. People who are involuntarily committed to in-patient mental-health care can receive treatment at the state-run psychiatric hospital in Las Vegas, N.M., and several private hospitals across the state.
State judges can issue other orders regarding mental health as well, such as treatment and guardianships, and can find someone mentally incompetent to stand trial in criminal matters. All those records are applicable to a gun buyer's background check, but the complexity of the record-keeping system in New Mexico creates reporting challenges.
For example, Pepin said, court administrators don't report guardianship orders to the FBI because such an order doesn't always mean an individual has been deemed harmful to himself or others. Separating reports for the "dangerous," he said, would require a more discrete level of data than the state keeps, and that would require more administrative resources.
"It is just one area that we have not been able to address yet," he said. "And I believe we have company with other states in that regard."
Mental-health records aren't the only records contemplated by the Brady law that aren't always in the database.
For example, the act prohibits gun possession by those who are "unlawful users of or addicted to any controlled substance." While felony convictions for crimes such as drug trafficking are regularly reported by the Administrative Office of the Courts, misdemeanor cases from municipal courts don't make their way to the FBI database. According to the GAO, convictions on drug crimes aren't even required to prohibit gun sales. A workplace drug-test result also would be relevant, for instance, but states have raised objections, citing privacy concerns and citizens' due-process rights.
Another snag in the state's reporting procedures is incomplete records. In some cases, the FBI requires that certain information be included in case-management files submitted to the database. It won't accept the file if that information is missing. For instance, the FBI requires information about the relationship between the defendant and the victim in a domestic-violence case, but New Mexico's data system doesn't have a place to enter that relationship. The Administrative Office of the Courts is working to remedy that problem with its database. This rule only affects those records between August 2012 and the present, Prisoc said.
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