‘Gaps’ in gun background check system must be fixed, local law enforcement officials say

March 5, 2018

The system Lincoln-area cops and gun sellers rely upon to keep firearms away from people whose mental illnesses can make them dangerous is flawed, law enforcement officials say.

Known as the National Instant Criminal Background Check System, that database has become a focus in the nationwide discussion on gun violence since last month’s school shooting in Parkland, Florida.

The background check system has improved in recent years, as Nebraska and other states have scanned tens of thousands of records — available before only in hard-copy form — so they’re more easily accessed by those who need them.

Still, law enforcement officials say, blind spots exist.

For example, not all mental health records are included, even for people who have repeatedly been taken into emergency protective custody by law enforcement.

And while the system is available to gun sellers and sheriffs for issuing handgun purchase permits, it can’t be accessed by police in real time as they try to determine whether someone may lawfully possess a firearm.

Lancaster County Sheriff Terry Wagner and Lincoln Police Chief Jeff Bliemeister say changes are needed to help their officers ensure guns are not in the wrong hands.

“I do believe these gaps need to be shored up,” Bliemeister said.

But mental health advocates warn some gun control measures might erode people’s constitutional rights.

Kasey Moyer, executive director of the Mental Health Association of Nebraska, opposes President Donald Trump’s recent idea to let law enforcement seize firearms from people without due process if they are believed to be dangerous.

Federal law prohibits anyone who has been committed to a psychiatric hospital or involuntarily placed in outpatient mental health treatment from possessing a gun.

But when law enforcement takes people into emergency protective custody, they can avoid making the no-gun list if they accept voluntary treatment or have their case dismissed.

That concerns Wagner.

Last year, his Lancaster County deputies responded to 109 reports of mental health issues and took 18 people into emergency protective custody, he said. The percentage of people who are involuntarily committed, and thus unable to buy a gun, is smaller, he said.

The sheriff said he would support a moratorium on gun purchases by anyone who is placed in emergency protective custody.

Wagner’s office began issuing firearm purchase permits, required when someone buys a handgun at a store or in a private sale, in 1991. The permits aren’t required for long guns such as rifles and shotguns, but gun dealers check the same database before authorizing those sales.

That was challenging when the records were available only in paper form.

″(For 23 years) we were issuing firearm purchase permits, and we had no idea unless they (purchasers) self-disclosed that they had been adjudicated mentally ill,” he said.

Even with a digital system, police still lack access to full background checks when they encounter someone with a gun. That bothers Wagner and Bliemeister.

“We are tasked with enforcing statutes, the law, and we need to be able to have access to make those decisions, as do the prosecutors themselves,” Bliemeister said.

Mental health records are so heavily protected by federal medical privacy laws that police can’t see them, the chief said. And officers might take someone into emergency protective custody but never know if that person is committed to a state psychiatric hospital.

Bliemeister said a 2016 case illustrates the challenge for police in determining whether to return a seized gun.

In that case, a man who barricaded himself and his mother inside his home was taken into emergency protective custody, and police seized his gun.

After he was out of treatment, the man’s attorney argued the gun should be returned and showed a police department attorney a copy of the man’s commitment order.

The order proved to police that he was federally prohibited from possessing the gun under federal law, so they didn’t give it back.

But officers can’t access digital forms of those records themselves, so they might be allowing prohibited people to keep their guns, even if they’ve been in contact with law enforcement.

The chief doesn’t want to criminalize mental illness or vilify people who deal with it, Bliemeister said.

In fact, he said, people with mental illness are more likely to fall victim to crime than commit it. But gun access remains a concern.

Lincoln police investigated 376 attempted suicides — a 22-year high — as well as 44 suicides last year, which was tied for the most in that same stretch.

About 40 percent of suicides in the past two decades were committed using a firearm, police said. Among children ages 10 to 14, 1 in 3 suicides involved a gun.

Moyer, of the mental health group, said suicide among children underscores the importance of gun owners securing their firearms.

“They don’t think long-term,” she said.

Moyer believes the focus on the nation’s gun violence problem should not be on those with mental illness, but those with behavioral issues, she said: “We have to quit associating mental illness with dangerousness.”