The
attack on America that we now refer to as 9-11, might have been
prevented if the information, already in our possession, had been consolidated
and considered. The shooting at Marjory
Stoneman Douglas High School on Valentine’s Day of 2018, could have almost
assuredly been prevented with the cacophony of information that was already available. The police had information, the FBI had
information, the school system had information, the parents had information,
students had information, the Florida Department of Children and Families had
information, and Henderson Behavioral Health had information. At least 7 different entities had information indicating that Nikolas Cruz had serious mental issues and had exhibited violent behavior. None of this information was available to the authorities responsible for approving his request(s) to acquire his arsenal of weapons and ammunition. One of these legally acquired weapons, an AR-15, was used to murder 17 people.
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| ATF Form 4473 is completed at point of sale (gun dealers only now) |
The information was everywhere. Therein lays the problem. The information was everywhere but not
available when and where it was needed.
In this age of extremely sophisticated data analysis if I shop on Amazon
for a camera, I am bombarded with ads for cameras on other web pages and through
emails. If we can track my shopping habits
and other web surfing interests, certainly we can collect, sort, and make
available the information necessary to identify many individuals who now
legally qualify to purchase a gun but should not have that privilege. Yes, gun ownership is a privilege, not a
right. Just as the privilege to drive,
is not a right.
I say that we need a new national database created for the
singular purpose of identifying those individuals who should not own a
gun. Various professionals would have
the ability to enter information into the database that might be pertinent in
evaluating an individual’s mental nature as it pertains to gun ownership. Law enforcement officers, mental health
professionals, school administrators, school counselors, and certain other
professionals would be able to make entries into this national database to
provide pertinent information. These
professionals would not have access to any other entries in the system, only
their own comments. Subjects would be
identified by as many factors as the entering professional had available in
order to assure the proper linking of information with the proper subject.
For the purposes of this article, I will use the term Gun
Purchase Information Database, or GPID.
I’m sure a better acronym could be found in the future. The collective information in GPID would only be available
to a separate division of the FBI designated to perform background checks prior
to gun purchases. This FBI section and the entire process could be funded with a small tax on gun sales. The existing database
is called NICS (National Instant Criminal-Background System) and it uses a
person’s name, address, place of birth, race, and citizenship for
identification. A Social Security number
is optional, though it's recommended.
The new proposed system would be separate from NICS and would have gun
purchases as its sole objective.
It should be noted that under ethical standards, doctors
and mental health professionals usually must maintain the confidentiality of
information disclosed to them by patients in the course of the doctor-patient
relationship. Most states however,
have laws that either require (blue in map) or permit (green in map) mental health professionals to disclose
information about patients who may become violent. This springs from an effort to protect
potential victims from a patient’s violent behavior. California courts imposed a legal duty
on psychotherapists to warn third parties of patients’ threats to their safety
in 1976 in Tarasoff
v. The Regents of the University of California. This case triggered passage of “duty to warn” or “duty to
protect” laws in almost every state as summarized in the map and, in more
detail, in the chart below.
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| Medical Professionals Must (Blue) or May (Green) Disclose Potential Threats of Violence to Potential Victims |
One of the obstacles frequently brought up is HIPAA or the Health
Insurance Portability and Accountability Act of 1996. This act protects the health information of
patients and prohibits the unauthorized dissemination of that information. The key word here is “unauthorized”
dissemination. When it comes to many physicians
and mental health professionals, HIPAA would not allow information about a
patient’s mental health to be sent to law enforcement.
My proposed solution would be that a patient be allowed to
sign a release that would authorize the forwarding of specific limited
information to GPID. That information would
only address the patient’s suitability to own a firearm. This release could be signed at any time
directly with the treating professional.
I don’t foresee significant compliance at this level but some.
Such a HIPAA release would however be mandatory as part of any application to actually purchase a firearm. In this latter instance, a GPID request for information would be sent to all insurance providers, along with the patient’s authorization, and the insurance providers would have 72 hours to reply.
Such a HIPAA release would however be mandatory as part of any application to actually purchase a firearm. In this latter instance, a GPID request for information would be sent to all insurance providers, along with the patient’s authorization, and the insurance providers would have 72 hours to reply.
The information provided by the treating professional would
not require any patient information beyond the informed judgement of that
professional that the patient Might or Might Not be a person who should have
access to a firearm. They could however provide any additional information they deem relevant. The professionals
could not be held liable for any mistakes in judgement or assessment.
This HIPAA release process would not address individuals who
privately seek and pay for their own treatment, but it at least provides more
information than we now have. Better
some information than no information. But, it should be noted that treatment professionals of patients in such privately paid counseling would still be under a mandatory disclosure requirement in many states (blue in map above) should their patient make plausible threats of violence.
All other professionals allowed to provide information in
the GPID should be able to do so without HIPAA concerns. In fact, even though a school employs school
nurses, physicians, psychologists, or other health care providers, the school
is not
generally a HIPAA covered entity because the providers do not engage in any
of the covered transactions, such as billing a health plan electronically for
their services. It is expected that most
elementary and secondary schools fall into this category. School personnel should be able to freely
post pertinent information to GPID.
When anyone attempts to buy a gun, the seller would complete
the ATF Form 4473 and forward the information to the FBI. Under this new system, the FBI would do its
normal NICS check but would also have access to the GPID. The opinions and statements of any of the
approved professionals in the GPID could be used to further judge the
suitability of the applicant to purchase a firearm.
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| Approval for Gun Permit? Maybe Not a Good Idea. |
While the existing NICS has criminal history,
adjudicated mental health, and immigration status that could deny access, it
would be a judgement call of the FBI processor to allow or deny the applicant
if mental health or violent behavior is indicated. An appeal process would be available for any
denial based on the GPID information.
Success or failure of any such system is contingent on proper
implementation. This means a comprehensive
database design, continued and adequate funding, procedural implementation of
reporting requirements for the responsible professionals, and making background
checks mandatory for all gun purchases both public and private in all 50 states
and the District of Columbia. This would involve the closing of the "gun show loophole," and a process for private sales which are both solvable issues.
This to me is more important than banning “assault rifles” or
restricting their manufacture. There are
perhaps 10 million assault rifles already out there, no one knows the exact
figure. Our efforts should be toward the
achievable. Keeping ALL FIREARMS out of
the hands of violent and/or mentally unstable people is a worthwhile goal. If "assault rifles" are unavailable for sale, it still leaves thousands of other firearms available to violent/unstable individuals. They could still steal one or purchase one
illegally but at least it would be more difficult.
The NRA doesn’t support universal background checks because
they claim the system is broken. In the
case of the Valentine’s Day massacre of 2018 at MSD High School, it was apparent
that the system is certainly ineffective.
I fully support the creation of something like the GPID described here
and the use of it to supplement the NICS for all firearms purchases. President Trump, in talking about the recent
school shooting, mentioned the importance of 'see something, say something,' but
went on to say that it didn’t work this time.
What if, when someone says something, there is a place to easily put that
information? See something, say something only works when its acted upon. A proper database might make all the difference.
Enabling police officers responding to a domestic disturbance or similar act of violence, where it is known that subjects have access to weapons, to at least temporarily remove those weapons, would also be a positive step.
Enabling police officers responding to a domestic disturbance or similar act of violence, where it is known that subjects have access to weapons, to at least temporarily remove those weapons, would also be a positive step.
The creation of a nationally available database such as the
GPID described here, would go a long way to preventing certain persons with
risky mental illness issues from legally purchasing firearms. Is it airtight? Certainly not. Is it a step in the right direction? I think so.
