- The Washington Times - Friday, November 24, 2017

The Justice Department has launched a review to identify gaps in the federal gun background check system following this month’s Texas church massacre, which was carried out by a man whose military conviction was not properly reported.

The FBI’s National Instant Criminal Background Check System (NICS) includes more than 17 million active records that could disqualify someone from purchasing a firearm. But Devin Kelley’s court-martial for domestic violence was not among those records because the Air Force failed to report it, letting him pass a background check when he purchased two guns last year.

The failure has prompted both the Justice Department and federal lawmakers to take action.

Attorney General Jeff Sessions announced last week that he had instructed the FBI and Bureau of Alcohol, Tobacco, Firearms and Explosives to identify and resolve issues that have prevented the Department of Defense from reporting convictions to NICS. He also instructed the agencies to identify any other federal agencies that are not turning over relevant information to NICS.

“The National Instant Criminal Background Check System is critical for us to be able to keep guns out of the hands of those that are prohibited from owning them,” Mr. Sessions said. “The recent shooting in Sutherland Springs, Texas, revealed that relevant information may not be getting reported to the NICS — this is alarming and it is unacceptable.”

Mr. Sessions directive will also require a report on investigations into those who make false statements on ATF background check forms.

According to FBI data, of the 17 million records on file that would prohibit a person from owning a firearm, 7 million stem from a person’s unlawful immigration status, 5 million relate to mental health, and 3 million include criminal convictions for felonies or come misdemeanors. Only about 150,000 are related to domestic violence convictions.

Earlier this month, key Republicans and Democrats announced a new gun bill that would punish agencies that fail to report their records on domestic violence to NICS and would incentivize states to improve their records reporting.

“Just one record that’s not properly reported can lead to tragedy, as the country saw last week in Sutherland Springs, Texas,” Sen. John Cornyn, Texas Republican, said earlier this month as he introduced the legislation. “This bill aims to help fix what’s become a nationwide, systemic problem so we can better prevent criminals and domestic abusers from obtaining firearms.”

Both gun-rights and gun-control groups have in the past advocated for better record-sharing with NICS for the purpose of background checks, though their focus has sometimes been on different types of records.

The National Shooting Sports Foundation has promoted better sharing of mental-health records between states and NICS, noting that in 2012 only about 1.7 million records related to mental health were included in the system.

NSSF Vice President Lawrence G. Keane expressed support for lawmakers’ most recent proposal.

“This legislation will offer states the necessary resources to promptly and efficiently provide disqualifying records to NICS on those who are prohibited under current law from possessing firearms,” he said. “Federally licensed firearms retailers rely upon NICS to prevent the sale of firearms to prohibited persons. This legislation will fix NICS so that background checks are accurate and reliable.”

Others have questioned recent decisions regarding records sharing that they believe could harm public safety.

The Giffords Law Center to Prevent Gun Violence recently questioned why the FBI issued a more restrictive definition of who should be regarded as a “fugitive of justice” in NICS records. Of the 1.4 million federal denials of firearms purchase made as a result of the NICS system since 1998, 178,000 were denied because someone was flagged as a fugitive of justice.

Previously, anyone with an outstanding warrant was regarded as a fugitive from justice for NICS purposes. But in February, the Justice Department issued new guidance that laid out a new legal interpretation. Individuals can now only be flagged as fugitives if they have fled the state where the arrest warrant was issued to avoid prosecution for a crime or to be forced to give testimony in a criminal proceeding, or if they are expected to be charged or obligated to testify.

As a result of the change in definition, approximately 500,000 records were removed from the NICS system, the group said.

NICS active records currently include only 788 flags for fugitives from justice.

“As such, any one of these potentially dangerous fugitives could currently walk into a licensed gun dealer, pass a criminal background check, and walk out with a gun,” Giffords Center officials wrote in a letter sent this month to the FBI. “Giffords Law Center calls upon the FBI, in coordination with ATF, to take all necessary steps to restore the purged data, resume the collection of fugitive from justice information, and recover any guns that were illegally transferred as a result of the data purge.”

A Justice Department official said that since the new fugitive determination was made, the FBI has issued additional guidance and offered training for agencies that report to NICS.

“The Justice Department is committed to working with law enforcement partners across the country to help ensure that all those who can legally be determined to be prohibited from receiving or possessing a firearm be included in federal criminal databases,” the official said.

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