This story is part of a KXAN series of reports called “Stop Mass Shootings,” providing context and exploring solutions surrounding gun violence in the wake of the deadly Uvalde school shooting. We want our reports to be a resource for Texans, as well as for lawmakers who are convening a month after the events in Uvalde to discuss how the state should move forward. Explore all “Stop Mass Shootings” stories by clicking here.

AUSTIN (KXAN) — Since 1966, nearly 60 mass shooters —including those in Uvalde, Texas and Highland Park, Illinois — have purchased at least 160 firearms legally through a Federal Firearms Licensed dealer, or FFL, according to research conducted by The Violence Project.

KXAN took an in-depth look at the current federal background check process to learn more about how it works and what information is reviewed before making a determination that someone is eligible to purchase or possess a firearm.

Operated by the FBI, the National Instant Criminal Background Check System, or NICS, was developed with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and state and local law enforcement agencies.

Its mission statement: “Seeking to enhance national security and public safety by conducting background checks to determine a person’s eligibility to possess firearms or explosives in accordance with federal and state laws.”

In 2007, nine years after NICS’ inception, the deadliest campus shooting in U.S. history occurred at Virginia Tech resulting in the deaths of 32 students. An additional 17 were wounded.

“The Virginia Tech shooter was able to purchase firearms from an FFL because information about his prohibiting mental health history was not available to the NICS, and the system was therefore unable to deny the transfer of the firearms used in the shootings,” according to the U.S. Department of Justice.

Following the Virginia Tech mass shooting, Congress implemented the NICS Improvement Amendments Act to address possible gaps in the NICS system, according to the U.S. Department of Justice.

KXAN previously reported about a database of research on mass shooters conducted by The Violence Project.

According to The Violence Project research, there have been 78 mass shootings since the 2007 Virginia Tech incident; 26 of these shooters obtained their firearms legally through an FFL or were found wrongfully eligible following a system failure in the background check process.

Additionally, The Violence Project found evidence that all 26 shooters either had a mental illness, or were previously committed to a hospital or taking psychiatric medications.

How a NICS background check works

Since its development in Nov. 1998 through 2021, NICS has processed over 400 million background checks to determine whether a person can possess or receive a firearm, according to the FBI NICS operational report.

KXAN found the vast majority of NICS background checks processed resulted in the determination that the individual was eligible to possess firearms or explosives in accordance with federal and state laws.

Chart illustrating the approval and denial rates of all NICS background checks processed from 1998 through 2021. Source: KXAN, FBI NICS 20-21 Operational Report

Currently, NICS background checks are not authorized for the private sale or transfer of firearms. However, some states require private sales to be facilitated through a Federal Firearms Licensee, or FFL.

In order to purchase a firearm from a FFL, the prospective buyer must complete an ATF Form 4473, Firearms Transaction Record, which is then provided to NICS.

Providing false information on Form 4473 is a federal crime with a maximum penalty of 10 years in prison.

Form 4473 collects multiple pieces of identifying information and requires answers to a list of questions that immediately identifies if the person is prohibited from purchasing or possessing a firearm.

Federal law prohibits a person from possessing or owning a firearm if any of these 10 factors apply:

  1. Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.
  2. Is a fugitive from justice.
  3. Is an unlawful user of or addicted to any controlled substance.
  4. Has been adjudicated as a “mental defective” or committed to a mental institution.
  5. Is illegally or unlawfully in the United States.
  6. Has been discharged from the Armed Forces under dishonorable conditions.
  7. Having been a citizen of the United States, has renounced U.S. citizenship.
  8. Is subject to a court order that restrains the person from harassing, stalking or threatening an intimate partner or child of such intimate partner.
  9. Has been convicted in any court of a misdemeanor crime of domestic violence.
  10. Is under indictment/information for a crime punishable by imprisonment for a term exceeding one year.

If nothing prohibited is revealed during the initial completion of the form, the FFL initiates an NICS background check. If the NICS Section does not make a determination of eligibility within three business days, the FFL may still choose to transfer or sell firearm to the applicant.

KXAN reviewed all the reasons the NICS issued denials since its inception in 1998 and found more than half of the denials were due to a criminal conviction.

Approximately 3% of all denials were related to mental health, according to the FBI NICS Section.

List showing the total number of NICS federal denials from November 30, 1998 to May 31, 2022 broken down by prohibited category. Source: KXAN, FBI NICS Section.

Mental health records reviewed by NICS

So what information does NICS review to evaluable a person’s mental health history? Currently, the Federal Firearms Prohibition Act states a person is prohibited from possessing a firearm if he/she has been “adjudicated as a mental defective” or “committed to a mental institution, “as defined by the following:

  • Is a danger to himself or to others;
  • Lacks the mental capacity to contract or manage his own affairs;
  • Is found insane by a court in a criminal case; or
  • Is found incompetent to stand trial, or not guilty by reason of lack of mental responsiblity
  • Is committed to a mental institution involuntarily;
  • Is committed for mental defectiveness or mentall illness; or
  • Is committed for other reasons, such as drug use”

Additionally, the Act provides a list of prohibited records related to mental health that federal agencies can not use in the course of an NICS background check.

The Act specifically prohibits federal agencies from reviewing the following mental health records if:

  • “such information has been set aside or expunged or the person involved has been fully released or discharged from all mandatory treatment, supervision, or monitoring;
  • the person has been found to no longer suffer from a mental health condition or has been found to be rehabilitated; or
  • the adjudication or commitment is based solely on a medical finding of disability without a hearing and there has been no adjudication under the federal criminal code of mental defectiveness.”

KXAN reached out to the FBI and asked about the mental health records it currently reviews and the challenges associated with evaluating mental health history when a background check is processed to determine whether a person is eligible to possess a firearm.

In response, an FBI spokesperson stated:

The NICS Section does not have access to state or locally maintained mental health records or databases to know whether the mental health reporting is as robust as possible. ​The NICS Section is continuously communicating with federal, state, local, and tribal partners and users of NICS, reminding, in part, that any mental health history that would render the person prohibited from being transferred a firearm under federal or state law should be noted within the NICS Indices with as much biographic information about the prohibited person as possible.”

The FBI spokesperson told KXAN “the effectiveness of NICS depends upon access to accurate and relevant records.” The spokesperson further stated, “the inability to access state or locally maintained mental health records or databases may potentially impact the accuracy of a NICS determination.”

Texas law

Texas does not currently have a Red Flag Law, which would require a court order to remove firearms from someone deemed to be a danger to themselves or others.

However, Texas law permits peace officer emergency detentions (POEDs), which provides a peace officer the ability to involuntarily commit a person to a mental health facility, without out a warrant, if the officer believes the person is mentally ill and there is a substantial risk of serious harm to the person or others, according to the Texas Health and Safety Code.

When a POED occurs, the Texas Health and Safety Code states the person can be held for up to 48 hours without a court order.

According to an FBI spokesperson, “over 20 states currently have a process in place for issuing emergency risk protection orders in these types of instances for which the NICS Section may rely upon, when applicable.”

However, Federal law on mental health records suggests that records related POEDs initiated in Texas may not be made available to NICS for firearm background checks or may not prohibit the possession of a firearm because the person would have been released from any further mandatory monitoring and it didn’t involve a court hearing or an adjudication.

In the wake of the recent mass shooting events, KXAN asked the FBI if any changes were being implemented to the NICS process related to the records and information it reviews when processing a NICS?

In response, the FBI spokesperson stated:

“The CJIS (Criminal Justice Information Services) Division continually works with federal, state, local, and tribal agencies to educate and assist with identifying prohibiting records and updating the proper systems accessed by NICS during a background check.”