News Column

NM Works to Improve Reporting Flaws That Hinder Gun Background Checks

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While expanding the use of background checks on potential gun buyers is among the proposals being advocated to curb gun violence in the U.S., the check system Congress created decades ago still relies on an FBI database compiled with spotty help from states.

New Mexico is one of three dozen states that rely on the FBI to conduct background checks to help keep firearms out of potentially dangerous hands. Among the disqualifiers are being committed to a mental institution involuntarily; committing a felony; testing positive for illegal drug use; and having a history of domestic violence.

Until 18 months ago, however, New Mexico's performance in providing relevant mental-health records was lacking. And sticky issues remain concerning what information can and should be submitted.

Meanwhile, a number of states haven't submitted complete information to federal authorities, according to published research. The Wall Street Journal reported recently that 14 states have flagged fewer than five people for mental-health issues.

The Brady Handgun Violence Prevention Act -- which went into effect in 1998, and is named after a White House aide who was injured during the attempted assassination of President Ronald Reagan in 1981 -- calls for background checks whenever a weapon is purchased from a federally licensed firearms dealer. The act created the FBI's National Instant Criminal Background Check System, or NICS.

December's school shooting in Newtown, Conn., has put the system back in the spotlight. The White House and others are now proposing that the requirement for background checks be expanded to all gun sales, not just those by licensed dealers.

This is not the first effort to expand the system. In 2007, in the wake of a mass shooting on the Virginia Tech campus in which the gunman had a history of mental illness, Congress made a push to increase states' participation in the database, with a focus on collecting mental-health data.

Last summer, the Government Accountability Office evaluated whether records were being provided as a result of that effort. While the federal office won't give details about the records New Mexico provided between 2004 and 2011, the agency noted that state's reporting procedures left a gap.

Carol Cha, acting director for homeland security and justice issues at the GAO, said, "One of the challenges that we found in talking to the states is that when we talk about criminal history records, all of that information resides with law-enforcement agencies, so it is a lot easier for them to transmit records to the federal database. When you talk about mental-health records, those records reside at private hospitals and state departments of mental health, in all of these other non-law-enforcement agencies."

New Mexico's problem, Cha said, was that it hadn't tasked a state agency with identifying where relevant mental-health records were kept and coordinating a plan to get the records into the database. New Mexico officials had been discussing the issue for about four years, she said, but no solution had emerged at the time of the GAO report, published in July 2012.

Arthur Pepin, director of the New Mexico Administrative Office of the Courts, said the GAO report doesn't give the state credit for a significant increase in reporting that began in June 2011.

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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