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A gap in federal background checks, because of Oklahoma law

Filed by KOSU News in Feature.
March 6, 2013

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The following was written by KOSU’s Quinton Chandler


In January a Gallup Poll found 91% of Americans want criminal background checks on guns. Numbers not lost on President Obama:

“The vast majority of Americans, including a majority of gun owner,s support requiring criminal background checks for anyone trying to buy a gun”

But majority doesn’t mean everyone. Here’s Sandy Froman, a former NRA President:

“The system doesn’t work. The NICS system is not working out. We have to get that working before we can add anymore checks.”

So what is missing for federal background checks run in Oklahoma?

The National Instant Criminal Background Check System, or NICS, is the FBI’s tool to keep guns out of the hands of people who cannot legally own them.  OSBI spokesman Jimmy Bunn breaks it down.

“NICS is what is commonly called the gun check. When a licensed gun dealer sells a gun to somebody, they call in to NICS and NICS tells them whether that person is barred from buying a weapon.”

Tom Smith, owner of Stillwater Armory, makes the checks sound simple and painless.

“If we get a proceed we go ahead and transfer the firearm over to them and they take ownership of it. If we get a delayed response we hold the fire arm until we get a proceed.”

And if the purchase is denied?

“We simply do not give them the firearm refund their money if need be….whatever we need to do on our end.”

“Of the thousands and thousands of the transactions that we’ve done I think we’ve only had three people who were denied.

The national coalition Mayors Against Illegal Guns, says some illegal purchases may be slipping through the cracks of the gun check. The coalition reported many states including Oklahoma don’t give the FBI the names of one group in particular. Jimmy sums it up.

“One of the prohibitions for ownership and possession of a firearm under federal law is that you have been adjudicated incompetent by a court and committed involuntarily to a mental health treatment facility.”

Simply put anyone a judge determines has a mental condition, or orders into psychiatric treatment isn’t allowed to own a gun or hold a carry license. The Mayors’ report says Oklahoma only gave NICS three mental health records and in just 2011 the FBI conducted almost 272,000 checks for the state’s dealers. Trent Baggett with the District Attorney’s Council can tell you why.

“The short answer is the law does not permit it. There’s a particular statute that makes those records confidential.”

As the law stands now state and private offices can’t even share mental health records between themselves.

“The court records, Department of Mental Health records, largely confidential. With regards to the OSBI, our SDA records are confidential. The actual treating physicians in the treatment facilities, they’re subject to physician client privilege.”

Bunn says the OSBI wants the same court records as NICS so they can do part of their job….deny or cancel open carry permits for people who aren’t allowed to have them. But the OSBI has no access to the records.

So, there’s nothing stopping some of the same people the law bars from having guns from holding licenses to legally carry them. That’s a monster of a legal contradiction. Right now legislation is moving through the State House aimed at clearing the logjam.

If the law passes, court clerks will be required to send records for the involuntarily committed to the OSBI and the FBI. Trent says the implications are huge.

If a person was committed here in Oklahoma but they went to Arkansas, Kansas, New York… there’s not going to be any record of that if the person tried to purchase a firearm in those other states.”

“This would just provide a means to share that information so if a background check was done that would show up.”

This may seem like an open and shut issue to some, but there are arguments against releasing court records. Police Captain Robert Nash heads up the Oklahoma City Department’s Crisis Intervention Team. They are specially trained to respond to emergency calls involving mental illness

Unfortunately we generally get those type of calls after the fact on occasion though we’re able to intervene before anyone’s gotten hurt.”

Nash says generally, CIT doesn’t arrest people: they take them to a hospital for treatment and later, maybe to see a judge. But, he said involuntarily committed or not its attitude that predicts whether a person is dangerous with a gun.

“I know of a number of individuals that have to take psych meds and I’ve got no worries at all because they are engaged in their own recovery. They know they have a treatable disease. They know they need to be treating it and as long as their treating it they’re just fine.”

“To label everybody that is subjected to an involuntary commitment as being ineligible to purchase a firearm I believe is kind of arbitrary and a little bit overreaching.”

The Captain said it might be better to report the people who have multiple commitments indicating they aren’t trying to get better.

Jimmy Bunn says in the end it’s already against federal law for these individuals to have guns and against state law for them to have self-defense carry licenses. But in reality there’s no way for the state to stop them without breaking another of its own laws.


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