In 1998, the FBI launched the National Instant Criminal Background Check System, a namecheck database of people prohibited from buying or owning firearms.
Federally licensed gun dealers are required to run background checks through NICS on potential customers.
But the results of a review of state laws, published today in JAMA Health Forum, reveals a patchwork of requirements for court and other officials to follow, sometimes involving multiple state officials and agencies, when they report people at risk of harming themselves or others to NICS.
“This raises questions about the ability of NICS to be used to block firearm purchases or possession by individuals with court-identified high risk of perpetrating violence,” the authors conclude.
The state-by-state analysis of reporting laws first appeared as an October 2023 Research Letter by the same authors, published in JAMA Internal Medicine. In that paper the authors note that federal law does not compel states to report to NICS.
In 2021, 48,830 people died from gun injuries in the U.S., finds an April 2023 analysis by the Pew Research Center. About 43% were killed by someone else while 54% of those deaths were the result of suicide. The remaining 3% involved accidents, law enforcement or “had undermined circumstances,” according to the Pew report. Suicide has long been the leading cause of gun-related death in the U.S.
So far in 2023, there have been 604 mass shootings, defined as a shooting event with at least four victims injured or killed, according to the Gun Violence Archive. There were 647 mass shootings in 2022 and 690 in 2021, according to the archive’s tally.
Firearm-related injuries are the leading cause of death for children under age 17, with the U.S. having the highest such rate by far of any large, wealthy nation, finds a July 2023 analysis from KFF, formerly The Kaiser Family Foundation.
The authors of the new papers, who specialize in medicine, law or both, find 40 states require reporting to NICS when a court orders an individual committed as an inpatient to a psychiatric care facility. Five states allow but do not require such reporting, while the final 5 states do not have reporting laws covering involuntary inpatient commitments.
It is not necessarily clear in those states that are silent on reporting whether a mental health professional, law enforcement officer or court official could still report an individual to NICS, explains Seattle University School of Law professor Deirdre Bowen, who led the state-by-state analysis.
The reason, Bowen says, is that state privacy laws may protect any kind of medical treatment from being revealed to a third party without the patient’s consent.
When a court determines someone cannot manage their basic needs, 13 states require reporting to NICS whether or not a guardian is appointed, while five allow the option.
Two states, California and Washington, require that individuals put on a short-term psychiatric hold, meaning less than 72 hours, also be reported if they are held for posing a physical risk to themselves or others.
“Given how layered and complicated it is, because there is no federal law that mandates, ‘You must report it,’ it really results in a lot of confusion among people on the ground who are supposed to be responsible for reporting,” says Bowen.
For example, research examining what California law says on the rights of psychiatric patients to own firearms has described that legislation as “complex,” and “conflicting.”
The authors of the new papers used the Westlaw database to compile their catalog of state mental health reporting laws. After a report is made to NICS, the FBI determines whether the individual ends up in the do-not-sell database, based on whether they are among the federal categories of people prohibited from receiving firearms. The authors did not seek to analyze real world reporting practices.
“Our team of researchers approached this from a non-partisan, non-advocacy perspective,” says author Emmy Betz, M.D., M.P.H., an emergency physician and director of the Firearm Injury Prevention Initiative at the University of Colorado School of Medicine. “We wanted to describe the current policy spectrum, and we encourage ongoing public discussion.”
State variance in NICS reporting
Rules for how NICS reporting should happen can vary widely by state, the authors find.
- Some states require court officials to report directly to NICS, while others require intermediaries. A few have significant bureaucratic layers before a report reaches NICS.
- For involuntary, longer-term psychiatric commitments, several states, including Massachusetts, Mississippi, North Carolina and North Dakota, require that court officials report the commitment to NICS.
- In Idaho, a court reports to state police, who are then required to report to NICS.
- In New York, a mental health professional reports a long-term involuntary commitment to county mental health officials, who then report to the state Commissioner of Mental Health, who then reports to the New York State Division of Criminal Justice Service, and an official from there reports the commitment to NICS, according to the analysis.
Many states require immediate reporting, or “without undue delay,” as Missouri statute puts it. Others, such as Florida, where reporting is allowed but voluntary, give up to 30 days to report. All laws examined for the paper were in effect as of the 2021 legislative session.
Three case studies to test the laws
For the Health Forum paper the authors created three hypothetical cases, each involving an individual with short-term or ongoing mental health issues, to test how reporting requirements would be handled under state laws:
- In the first case, a man, 35, with a history of psychosis and post-traumatic stress disorder, is brought to a local emergency department while suffering from paranoia and auditory hallucinations. He says he stopped taking his medications and that he is going to buy a firearm — and the hallucinations are telling him to kill government officials. A court involuntarily commits him for psychiatric treatment.
In this scenario, most states would require reporting to NICS. Arkansas, Montana, New Hampshire, Ohio, Wyoming and Washington, D.C., do not have laws that require or allow reporting.
- In the second case, a woman, 75, has Alzheimer’s dementia. She is not taking good care of herself. She does not often bathe or get fresh groceries and has threatened neighbors with a shotgun. Her son, by court order, obtains guardianship over her.
In this scenario, 32 states and Washington, D.C., would not explicitly require or allow the woman to be reported to NICS. Thirteen states would require reporting. Five states — Colorado, Florida, Missouri, Nebraska, West Virginia — would allow but do not require reporting.
- In the third case, a man, 55, has told his wife that he will shoot himself. She calls the police, but he does not want to go to the hospital. The police take him to the local emergency department anyway, placing him under an involuntary short-term hold. He has struggled with depression and, recently, he and his wife had an argument. After a medical evaluation, doctors determine his risk of self-harm has lowered, and he agrees to an appointment with his therapist for the next day. He goes home with his wife, and the involuntary hold is lifted.
Two states, California and Washington, would require reporting to NICS. Along with Washington, D.C., no other state has laws that would explicitly allow or require reporting for this scenario.
While the cases are composites drawn from real-life experiences of the paper’s medical doctors, the third situation is particularly reflective of the everyday realities emergency department physicians often face, Betz says.
She notes that where she works, in Colorado, mental health holds are often used to bring someone to a hospital for a professional psychiatric assessment. The existence of a hold does not necessarily mean an assessment has been done yet, she says.
Advice for journalists covering gun violence and gun access
While gun violence has often been covered in the news media by reporters on the crime, legal or education beats, thinking of gun violence as a public health issue is appropriate, Betz says, because gun violence can mean physical and mental harm for individuals and families.
As a physician, she says her role is to treat and meet people where they are at — whether they are gun owners or not.
She suggests journalists apply a similar framework to their reporting.
“We have to understand and talk about laws as part of these solutions,” Betz says. “My recommendation to journalists would be to do what they can to try to mend divisiveness and recognize that nobody wants these deaths happening. Nobody wants suicide. Nobody wants mass shootings. Nobody wants community violence. We may all disagree on how we get there, but I hope that this paper, that what’s coming out of it, can be sort of food for discussion. We are not trying to say what’s right or wrong — we want it to spark some of those conversations.”
Bowen recommends journalists remember that “NICS is only as good as what states wish to report and when they report it. Ultimately,” she says, “ this is an issue that is getting addressed at the state level. And that means there’s chaos that’s going to ensue because there are a myriad of procedures used in each state.”
This piece was updated on Nov. 21, 2023, to clarify that the analysis first appeared in JAMA Internal Medicine and to add quotes from Bowen.