Legal News

Background Checks
By Timothy C. Parlatore, Esq.

In the wake of yet another tragic school shooting, politicians and activists immediately turn to the familiar debate over gun control. Given the high emotions on both sides of this divisive issue, the debate is rarely productive and no real changes occur, other than to stoke more anger and drive both sides further apart, making the possibility of reasonable debate even more hopeless.

Part of the problem is that in the frenzy to impose newer, harsher gun control laws, nobody first considers whether the existing laws work, or if they are even being properly implemented. In this regard, New Jersey stands out as an example for other states and the federal government to follow. No, I’m definitely not talking about assault weapons, magazine sizes or concealed carry permits, as those are issues for another day. But New Jersey does lead the way in ensuring compliance with existing restrictions on firearms purchases by people with mental health issues.

N.J.S. § 2C:58-3 lays out the list of factors that disqualify a citizen from purchasing a firearm. This list largely mirrors the list of federal prohibitions, with minor additions. For example, state law also prohibits “habitual drunkards,” alcoholics, and people on the FBI terrorist watch list. However, the major difference between New Jersey’s restrictions and federal restrictions isn’t in the substance, but rather the application because New Jersey requires the local police departments to actually investigate and verify eligibility of citizens prior to purchases.

As part of these investigations, applicants must provide fingerprints, references, prior addresses, and sign a “Consent for Mental Health Records Search.” This form waives the confidentiality that normally attaches to medical records to permit police investigators to verify whether an applicant has a history of mental health issues. Investigators can and do reach out to mental health facilities in the localities where applicants have previously resided to ensure that they are eligible. Moreover, investigators speak with applicant’s references, who can provide information about people who suffer from mental disease, but have not sought formal treatment.

Beyond the mechanical process of ensuring that gun purchasers are legally eligible, this process also provides a good opportunity for our police officers to interact with the public, get to know the people in their towns who are purchasing firearms, and to ensure there are no obvious red flags. It is, unfortunately, a long and time-consuming process and our police departments could certainly benefit from additional resources to make the application process more efficient.

In contrast, federal law requires only that a firearms dealer perform a National Instant Criminal Background Check System (NICS) search before selling an individual a firearm. While the NICS system does contain some mental health information, it is sparse. Federal law has no requirement that states or hospitals report incidents of mental health for inclusion in the NICS database. Some states, like New Jersey and Pennsylvania, lead the way in voluntarily providing this information, but many do not. So, while the NICS system is helpful in determining whether a purchaser is ineligible due to a criminal record, many people with known mental health issues slip through the cracks.

Consider this: Even though New Jersey may have some of the toughest gun laws in the country, you can still buy an AR-15 style rifle, albeit without certain features, such as a bayonet lug. Yet, there haven’t been any mass shootings in New Jersey since the 1949 “Camden Massacre,” where Howard Unrah shot and killed 13 people and was later found not guilty by reason of insanity and was committed to Trenton Psychiatric Hospital. New Jersey also has not had any significant school shootings (there were three incidents in school buildings in 1889, 1975, and 2002, with only one fatality). I submit that the reason New Jersey has largely escaped the mass shooting epidemic is not their magazine restrictions or assault weapon restrictions, but rather the strong background checks, which include mental health verification.

If Florida had implemented New Jersey’s background check procedures, Nikolas Cruz likely would have been unable to legally purchase the AR-15 he used to murder 17 people in Parkland Florida. At the same time, New Jersey’s laws do not prevent lawful and eligible citizens from purchasing and owning the same firearm. New Jersey’s laws also provide a remedy for citizens who are denied purchase permits by appealing the decision to a Superior Court Judge.

New Jersey’s system isn’t perfect, and it certainly could be run more efficiently, but if this approach were adopted on the national level, there would be a significant impact in keeping guns out of the hands of those suffering from mental illness. So, before lawmakers pass knee-jerk gun control restrictions that focus on the physical characteristics of the hardware, we should take a more thoughtful look at how the existing laws are implemented and monitored, because if Florida adopted New Jersey’s example of enforcing its existing restrictions, this tragedy could have been prevented. Before we begin haphazardly enacting new laws based on emotions and debatable Constitutionality, we should first enforce the existing laws.

Timothy C. Parlatore, Esq. is a partner in the law firm of FisherBroyles, LLP. He has handled numerous high-profile cases and has represented numerous police officers. He is a graduate of the U.S. Naval Academy, Brooklyn Law School, and is a Navy veteran.