Illinois Shooting Highlights Broken Background Check System

For context, Illinois long ago established a sort of “universal background check” system in the form of Firearm Owners Identification (FOID) cards. In order to legally possess – not just buy – a firearm as an Illinois resident, a person must first acquire a FOID. The process for doing so is relatively straightforward, costs $10, and the card is supposed to be issued within 30 days (though applications have, in recent years, taken as many as 60 days; a violation of Illinois statute). During the processing stage, Illinois State Police query the FBI’s NICS for disqualifying criminal history (felonies, domestic violence, etc.) along with the state’s Department of Human Services Database, which logs adjudications for mental illness and even whether or not a person has been a patient in a mental health facility. Failure to present a clean record in either of these key steps results in disqualification.

Despite the above factors, last month’s shooter in Aurora, a felon, managed to acquire a firearm. How did this happen? According to the Associated Press, the perpetrator was convicted back in 1995 of felony aggravated assault while living in Mississippi. Nine years later, in 2014 and now residing in Illinois, he applied for and received a FOID without triggering an alert. He again cleared the NICS check in March of that year when he acquired the handgun used in last week’s shooting. NICS, which is supposed to track felony convictions, failed rather spectacularly in this case – but that isn’t even the only enforcement failure that contributed to February’s incident.

Shortly after receiving his FOID and purchasing the Smith & Wesson handgun ultimately used in the shooting, the shooter applied for a concealed carry license through the Illinois State Police. This time, allegedly thanks to a more in-depth process, authorities caught the previous felony. After the discovery was made, the shooter’s FOID was revoked and a letter was sent to him instructing him to turn over any firearms in his possession. Police did not follow up on this request and at no point was any attempt made to ascertain whether the initial enforcement failures had allowed the accused to acquire any firearms that may still have been in his possession – such as the .40 caliber handgun used in the shooting.

Treating the initial two NICS checks (for the FOID and to purchase the handgun) as the same general issue, there were still two major failures made clear by the Aurora shooting. The first was the fact that the FBI’s NICS had not been updated with the 1995 felony conviction. Since the crime took place in Mississippi and the reporting onus is typically on the state wherein the conviction occurred, it seems Mississippi officials neglected to follow proper procedure. It is worth noting that the NICS system was not fully operational until 1998 and whether that impacted reporting in 1995 has not been revealed. Since NICS relies on information from the National Crime Information Center (NCIC), a much longer running system with information pertaining to violent offenders, all signs point to a serious reporting error. This appears to be confirmed by documents released over the weekend of February 23 indicating that Mississippi had failed to include the prior conviction in reports sent to national databases.

The second fumble occurred when the Illinois State Police discovered the past offense, denied the shooter’s concealed carry license and revoked his FOID, but did not make an effort to determine whether he had purchased a firearm. By the ISP’s own admission, they have no record of ever receiving the shooter’s revoked FOID, nor have they been able to locate his firearms disposition form, a required submission following FOID revocation.

High profile missteps related to enforcement of federal firearms background checks have unfortunately been very common in recent years. As Stephen Gutowski notes in the Washington Free Beacon, at least three major mass shootings could have been prevented with a properly functioning NICS system. Unreported mental health records allowed the Virginia Tech shooter to acquire firearms, multiple errors by the FBI allowed the Charleston, South Carolina church shooter to purchase a handgun, and the Air Force’s failure to submit relevant domestic battery records allowed the Sutherland Springs church shooter to pass NICS checks.

The cited examples are specific and, at first blush, limited. However, in aggregate, the government fares no better. In 2018, the U.S. Government Accountability Office conducted an analysis of 2017 NICS denials. Of 8,606,286 total NICS transactions, 112,090 (1.3%) resulted in denials. 12,710 (11.3%) of the denials prompted an investigation by an ATF field office. These efforts culminated in just 12 prosecutions. Just 0.01% of denials led to prosecutions. That’s a shocking revelation. Working as intended, NICS failures are themselves felonies. That’s because transferees must first complete a comprehensive Form 4473 that asks about a person’s criminal, drug, and mental health histories. If any of these turn up disqualifying responses, the transferor is instructed to cancel the transaction immediately. If the responses are not disqualifying, but the call to NICS results in a denial, the purchaser would be guilty of federal document fraud, a felony. That is, of course, if the system functioned as intended – it doesn’t.

This brings us to the crux of the issue. If gun controllers are going to continue to push for things like “universal” background checks, they’re going to have to explain or otherwise address the massive enforcement problems outlined here. Public officials are shirking their responsibility to report disqualifying convictions and adjudications and are never held personally accountable when people die as a result like we saw in Aurora. In addition, even when the data is allegedly there, the ATF makes little-to-no effort to pursue denials, which suggests that either the agency is inept or that the data fed into NICS is so flawed that it’s only actionable a fraction of the time. These things are simply going to have to be fixed.