Ron Martinelli, Ph.D., CMI-V

Forensic Criminologist/Police Expert

Certified Medical Investigator

Copyright 01-06-16

President Obama’s executive action today to add more useless bureaucratic layers in the form of “enhanced background checks” and firearms sales licensing proves once again that we have an uninformed President who favors posturing over productive and effective gun control.

While the President might fool the naïve public into thinking that he is actually doing something to curb gun violence; those of us in the law enforcement and forensic community know different. Those of us who study and respond to gun violence crimes understand the root causes of gun violence in our nation. We know that nothing that President Obama did today; or that he has done since he took office will have any measurable effect on reducing gun violence in our nation.

If you pay close attention to how this President addresses our nation’s most pressing problems like terrorism and gun violence, you will see a theme of emotional rhetoric, in concert with meaningless, ineffective executive fiats ultimately designed to whittle away Congressional authority and personal freedoms.

The pathway to any effective reduction of gun violence nationwide is the understanding that real “gun control” is about behavior control. Ordering enhanced background checks for individuals who want to purchase firearms legally does nothing to reduce gun violence; since the overwhelming number of suspects who possess firearms and use them to kill and maim people do so illegally. Going out and stealing or illegally obtaining a firearm is a behavior. Illegally carrying a firearm is a behavior. Intentionally committing a violent act with a firearm is a behavior.

The reasons why suspects make the life decisions they do that form the foundation of a psychological mindset to intentionally commit all of the actions that lead directly to acts of gun violence are all behavioral. The gun is only an inanimate instrument of a mentality prone to take illegal and violent actions. Even those people with some level of mental instability who have committed heinous acts of violence, unrelated to terrorism, such as mass killer active shooters, made a cognizant decision to use a gun as their instrument of injury and death. This is behavioral.

Without falling prey to the President’s emotional rhetoric and instead focusing on the forensic facts, we see that as of 2012, which was the last year that suicide gun deaths were available, sixty-four percent (64%) of gun violence deaths were attributed to suicide. Of these, the majority of gun death suicides were white males which far surpasses those of black and Hispanic males. Again, suicidality is a behavior where the suicide attempter or completer has a specific intent to end their life with a firearm. I think we can all agree that suicidality is a mental health issue that needs to be addressed in this country.

A new University of California Davis study on suicides found that the suicide rates for white males is increasing and offsets any decline we might eventually see in overall firearm-related mortality during the 21^st Century. In contrast and as I have already discussed, blacks and Hispanic males are significantly more likely to be the victims of firearm homicides.

We have now touched on two extremely important issues relating to gun violence and gun control – mentally disturbed active shooter murderers and suicide victims.

President Obama looks into the television camera with a tear in his eye and exclaims that the senseless mass murder of children makes him angry. So just how has President Obama demonstrated that he understands our nation’s serious mental health problem and is willing to use his power of office and the bully pulpit to fund public mental health programs? His Omnibus Appropriations Act only allocates a mere $6 million to the Unites States Department of Justice to use for community-based solutions such as mental health programs. What?!

So let us now discuss how porous the Justice Department’s “Thin Blue Line” is in its current and projected “enhanced background check” system that would deny people with a documented mental health history of being a danger to themselves and others from purchasing a firearm.

Background checks are intended to identify whether potential purchasers are prohibited from purchasing or possessing firearms due to one or more “prohibiting factors,” such as a prior felony conviction or a prior involuntary commitment for mental health reasons. Operationally, such background checks primarily use information contained within the National Instant Criminal Background Check System (NICS).

For some time, Congress has been debating whether federal privacy standards promulgated under the Health Insurance Portability and Accountability Act (i.e., the HIPAA privacy rule) or state privacy laws are an obstacle to the submission of mental health records to NICS. Under the Gun Control Act of 1968 (GCA), as amended, persons adjudicated to be mentally defective or who have been committed to a mental institution are prohibited from possessing, shipping, transporting, and receiving firearms and ammunition. Neither a diagnosis of a mental illness nor treatment for a mental illness is sufficient to qualify a person as “adjudicated as a mental defective.” Rather, an individual’s “adjudication as a mental defective” relies upon a determination or decision by a court, board, commission, or other lawful authority. The definition of “committed to a mental institution” may apply only to inpatient settings.

At least one federal court has held that the Supreme Court’s recent recognition of an individual’s right to possess a firearm suggests that some emergency hospitalization or commitment procedures, that may not have as many procedural safeguards as formal commitment, should not be included within the meaning of “involuntary commitment” for purposes of the GCA. In 2007, Congress passed the NICS Improvement Amendments Act (NIAA), which authorizes the Attorney General to make additional grants to states to improve electronic access to records as well as to incentivize states to turn over records of persons who would be prohibited from possessing or receiving firearms.

In 2012, the Government Accountability Office (GAO) reported that a variety of technological, coordination, and legal (i.e., privacy) challenges limit the states’ ability to report mental health records to NICS. The HIPAA privacy rule, which applies to most health care providers, regulates the use or disclosure of protected health information. On February 14, 2013, HHS announced that it will seek to amend the HIPAA privacy rule to remove any potential impediments to state reporting of mental health records to NICS. The privacy rule is most relevant as a potential obstacle where information used to generate mental health records on individuals prohibited from gun possession under the GCA is held by health care providers in states that do not expressly require disclosure of such records to NICS. Courts and health care providers that generate such prohibiting mental health records may also be subject to state health privacy laws that may be more restrictive than the HIPAA privacy rule.

It should interest the concerned public to know that only 30% of the 4.4 million eligible mental health records that could be in NICS during the past 20 years are actually in there. What? One glaring indication that the NICS system is a complete failure is that the state of California submits no mental health commitment records to NICS! Further, the California Department of Justice has never even checked any of the over 120,000 people who have been documented in the California Intelligence Information (CII) system to have been involuntarily committed to a mental health facility for being a danger to themselves and others; to see if they own or possess firearms. This includes persons who had overdosed, attempted suicide, or were suffering from a diagnosed psychosis such as paranoia, schizophrenia, or bi-polar disorder.

At present, there is no federal requirement that states enter involuntary commitment information into any federal firearms background check database. President Obama could have required this in his executive order, but did not. Certainly, USDOJ Attorney Lynch is aware of this huge flaw in the federal firearms background check system which the President touts as the government’s primary firewall against the wrong people purchasing or possessing firearms. Afterall, the FBI is the caretaker of the NICS system. The question is did she advise and consult with President Obama on this problem?

Putting things into perspective, the five most deadly shootings in the 21^st Century – Virginia Tech, Newtown, Fort Hood, the Washington Navy Yard and Aurora – resulted in 96 deaths. With the exception of the Fort Hood incident which was a terrorist act, the remaining incidents, including a separate mass shooting incident that critically wounded Congresswoman Gabby Gifford, were committed by suspects with obvious mental health disorders. During that same period an average of eighty-two (82) firearm deaths occurred every day between 2002 and 2012, resulting in a total of 300,659 firearm-related fatalities.

In my prior article “Six Steps to Effectively Reduce Urban Crime,” I laid out several highly effective steps for our President and Congress to take that would have immediate impact in reducing gun violence nationwide. These included making the illegal possession and use of firearms during crimes federal offenses; strict, non-plea bargained, mandated prison sentencing for gun crimes; special gun courts to expeditiously process, try and sentence gun offenders; enhanced technology for background screening on gun purchases; and increasing staffing to ensure expeditious processing and approval/denial of all firearms sales.

Next, our President and Congress need to display the heroic courage required to recognize, speak out and address the root causes of violent crime; much of which is gun-related. Over 19,000 of the 32,000+ homicides nationwide are classified as “black on black” crime, occurring in impoverished, drug and gang ridden communities. The majority of the offenders and victims are young black teens and young adults. The psychological and environmental profiles of the suspects involved in these gun-related injuries and deaths have been known to us for years. However, our President, the Congress, local politicians and so-called community activists refuse to take the necessary proactive steps necessary to develop and adopt community and enforcement-based programs to change behavior and mitigate gun violence because they believe that it would be “politically incorrect” to do so. Hence, nothing ever gets accomplished and violent crime rates continued to soar without respite.

To make matters worse, the President’s anti-law enforcement rhetoric combined with his implied support for militant anti-police groups such as the Black Lives Matter movement, allow for the forwarding of false narratives like so-called disproportionate enforcement and uses of force against blacks. The rhetoric of these falsehoods deflects the true reasons for excessively high crime and gun violence rates within the urban community and improperly redirects it towards police who provide the only Thin Blue Line of protection between the lawless and the innocent in our society.

As evidence of President Obama’s and Congress’s ineffective leadership on the topics of gun control and homegrown terrorism; and the public’s legitimate fear for their safety; witness the ever increasing sales of firearms nationwide. In fact, over 3.6 million firearms were sold in the U.S. from 2014 – 2015. In fact, every time this President uses gun control rhetoric, gun sales spike nationally. This is not a leader who is able to assuage the general public’s concern for their safety and security. This President and our ineffective Congress are a train wreck.

Albeit, President Obama emotionally invokes the incidents such as the active shooter mass killings at Sandyhook Elementary School; the movie theater in Aurora, CO; the community college in OR; and the shooting of former Congresswoman Gabby Gifford in Tucson, AZ as his reasons for taking executive action to further control gun purchases; the truth is that none of the President’s actions would have had any effect in stopping those gun violence incidents. However, the subsequent investigations into those incidents show that if people would have reported the bizarre actions of the killers to law enforcement prior to those shootings; they might have been avoided. In other words, “If you see something; say something.” In fact, we now also know that if a neighbor of the terrorists in San Bernardino would have not been so concerned with being labeled a “racist,” and reported her observations of their suspicious behavior to authorities; that mass murder might have been avoided as well. Since it is obvious that some people will occasionally slip through the cracks of any gun control program, anonymous reporting is another component of effective gun control.

Finally, President Obama’s Omnibus Appropriations Act allocates only $73 million to improve the national system for “enhanced background checks” for firearms purchasers. This includes hiring 250 additional FBI agents to staff a program that absent the NICS system is the responsibility of the Bureau of Alcohol, Tobacco and Firearms (BATF). This is at a time where the FBI is already far understaffed to conduct and complete investigations on over 1,000 suspected ISIS type terrorists in the U.S. This is complete madness.

This is a President desperate to document a “legacy” of commitment to victims of gun violence; but without the intestinal fortitude necessary to affect real gun control change in America. In the meantime, he adds additional layers of useless bureaucracy that will ultimately inconvenience law abiding gun owners and sellers; while doing absolutely nothing to mitigate the root causes of gun violence that has historically plagued our nation.

 About the Author

Ron Martinelli, Ph.D., CMI-V, BCFT, CFA, is a forensic criminologist and Certified Medical Investigator who directs the nation’s only Forensic Death Investigations and Independent Review Team. Dr. Martinelli specializes is death cases and violent crimes. He has personally investigated over 200 shooting and in-custody death cases. His forensic/law enforcement social media site is http://www.DrRonMartinelli.com.

References

https://www.fas.org/sgp/crs/misc/R43040.pdf

www.vocativ.com/usa/guns/suicides-outnumber-homicides-comes-gun-violence

My Six Point Plan to Effectively Reduce Urban Violent Crime, Martinelli, Ron, Ph.D., http://www.DrRonMartinelli.com