I've been thinking about what might actually help curb gun violence. There's been a lot of talk about Red Flag laws, a new AWB, etc. What about making it a criminal offense for government agencies to not report to NICS in a timely fashion? The Texas Church shooting was carried out by someone who should have been flagged in NICS but his dishonorable discharge and legal history in the USAF was never sent to NICS. That level of negligence directly contributed to the deaths in that shooting, if a civilian had failed to report that information, they would face civil and potentially criminal legal proceedings.
I was holding fire on both the last shootings until more info is in, as I usually do - but at this juncture, it appears both shooters took
and passed their NICS background checks and there wasn’t any sort of thing where a lazy government employee just shrugged and approved it when she shouldn’t have (Charlottesville shooter) or the system utterly failed to have the information input (VT shooter). Or many of the other NICS fails that have happened; NICS is so bad that
I was actually surprised to find out that it hadn’t screwed up, to give people an idea of how many times a mass shooter has been cleared by NICS when NICS should have flagged them.
While your idea of holding people responsible for reporting is a good one, unfortunately even if passed into law the government would probably never pursue prosecution of offenders more than on a token basis - because failing NICS is a Federal felony that the government already has the complete evidence for, yet they prosecute less than 1% of justified NICS failures per year.
So, with that in mind, I do not support ‘more background checks’ until they fix the broken crap we have now. To that end, here are my suggestions:
1. First, make the ATF do their job and require it to investigate 100% of NICS denials. While many NICS rejections will be caused by clerical errors, similar/identical names and the like, those should still be chased down and the resulting information used to improve the system. The remaining correct rejections, where the applicant was rejected for actually being a prohibited person who attempted to buy a firearm? We should have 100% prosecution, no exceptions. We currently don’t (again, less than 1%) and that is the first thing we need to fix, especially because it’s a slam-dunk case and a trial would take about three hours.
2. End the ‘oh, you turned 18? We’re wiping your criminal record’ free pass for serious mental issues (more on this in 3) and serious crimes of violence that occurred while under 18. Many of the recent shooters had significant juvenile encounters with law enforcement and mental health professionals that if they’d been adults at the time would have been clear red flags preventing a NICS clearance - including the Dayton shooter, who apparently had an extensive mental health and criminal record as a juvenile.
3. Establish a court of appeals for those wrongfully placed on the NICS no buy list. Right now, there is no effective way to appeal a wrongful rejection and get the system corrected other than to lobby bureaucrats at NICS. Who are, unsurprisingly, capricious. Someone rejected incorrectly should be afforded full legal rights and proceedings to get their status corrected. Likewise, someone who had mental issues as a teen that is now an adult and actually does
not have those issues any more should be able to get their rights restored.
4. Politicians should be required to pass NICS before running for office. Just to make sure the system works and is accurate. After all, if they can’t be legally trusted with a gun, there is no way they should be allowed to have the even more dangerous power of public office.
5. Strict personal criminal liability for personnel who are supposed to report to NICS, persons operating NICS and NICS administrators. The shield of sovereign immunity that all the above typically hide behind when they screw up (I hear the lazy worker that passed the Charlottesville shooter was recently
promoted) should be removed and they should be personally criminally prosecuted when they fail in their duties. And just to keep them from pulling the classic bureaucratic move of deciding that it's too dangerous to approve anyone, make false reporting or denying a sale when the person is innocent and should have been approved also a crime, with even worse penalties. To that end, mental health professionals who are supposed to be reporting to NICS should also be held personally criminally liable for their reporting to the correct agency - the Aurora shooter would have been stopped if the college dean who had been legally counseling the shooter had actually reported it to a real police agency instead of the campus security goons. Likewise the mental health professionals who would for various reasons spuriously report their patients just to prevent people who aren't actually violent and just need to work out issues from getting firearms (this, by the way, is why many police, fire and ambulance crews as well as military and veterans do not seek out mental help - the consequences of even just talking out your marital problems and figuring out stress can mean that you get put on the NICS list for no good reason and lose your job) should also be held to even nastier criminal penalties if they file a report to unjustifiably deny someone their rights. Right now they're not; see the court idea above - just as someone can prove they were improperly classified as incompetent/insane by going before a court ordered battery of psychiatrists, there should be a similar procedure for NICS reported persons - because we all know there are psychiatrists that falsely report their patients to NICS for personal political reasons. Any mental health worker who falsely reports in either direction should be held personally criminally and perhaps even civilly reliable - just to make sure they're absolutely sure of their diagnosis.
Only after we do the above should we look at expanding the use of NICS - because some states already require 'universal checks' and with NICS in the condition it's in, it is worse than useless. The San Bernadino shooters bought their firearms in California, which has universal background checks. Didn't do much good, did it? In fact, California's experience with universal checks is now more than 20 years old and it bears this out.