An Information Crisis; The Valentine’s Day School Massacre of 2018

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.

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.

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.

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.

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.

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.