I am not a gambler, have never really gambled, and I tend to be a guy who likes checks and balances in my life. When I leave on vacation, I always have a jump starter in case the vehicle battery dies, a can of tire flat, and an extra set of keys in my wife’s purse in case I lose a set. I like backup plans.
Maybe that goes back to my years as a Violent Crime Detective. Serving a warrant on a violent felon does not always go the way you plan. I learned very quickly, after a fellow officer was killed trying to serve a warrant, that the felon plays a huge part in how this goes.
Regardless, I have spent my career working in law enforcement and then the past 20 years as a Violence Prevention Consultant and owner of a background screening firm and visitor management company. There is very little room for error in these careers. Checks and balances are critical.
For the past 13 years as the CEO of Safe Hiring Solutions, I have provided testimony and guidance to lawmakers on the best practices in background screening. What I have learned is that policymakers at the state and federal level rely heavily on the advice of law enforcement, and that their first inclination is to mandate a fingerprint background check solution.
I started Safe Hiring Solutions in 2004 because of the failure of a state background check system. Two sex offenders were hired by a large metropolitan school district in Indiana after having been cleared in the state criminal database.
An audit of the state screening program found that many courts were not sending their conviction data to the state even though state law required them to.
What we learned is that the state was at the mercy of the courts to send the data, and if they did not send the data, then it did not exist in the database.
There were several flaws with the government background screening database:
- Single source. The source of the data was not sending the data to the state. This is the inherent problem with government background screening databases. No checks & balances.
- Contained only convictions for Class A Misdemeanors and above.
- Accurate final dispositions.
- Relied on state and local law enforcement to submit.
I launched Safe Hiring Solutions to provide a solution to this problem. The first thing we focused on was the problem with single source criminal databases. We created a background screening process that contained multiple solutions and checks and balances that included:
- Solutions to Identify
- National Criminal Database
- National Sex Offender Registry
- Federal District Courts
- County Criminal Searches
The package we created removed the single source failures. The case study above with the 2 sex offenders was solved. A convicted sex offender should appear 3 times in the private background check:
- National Criminal Database
- National Sex Offender (if required to register)
- County Criminal Search
Therefore, if any of the sources fail, there are backups in place.
The argument made by law enforcement is always that without a fingerprint, you cannot conduct a thorough background check. This simply is not true.
I recently explained to a group of policymakers that I had gone through the process to obtain a gun permit and could have easily exploited the fingerprint process. How? Well, let’s assume I had a prohibitive felony or misdemeanor (I don’t). I registered online and selected a date, time, and location to submit my fingerprints. I could have easily handed my ID to my brother, who looks much like me, and sent him in to submit a set of fingerprints.
How do I know that would have worked? Because it was the government issued ID that was my source of ID - not the fingerprints. The person collecting the fingerprints glanced at my ID for 2 seconds. She had someone coming in every 15 minutes. A quick glance at the BMV photo and my brother would have raised no red flags.
The fingerprint process does not pop up and say, “This is Mike McCarty!” No, the system looks for my fingerprints in a database that are attached to a criminal record. If there are no fingerprint matches with a criminal record, then the report is clear.
The shooting this past Sunday in Texas has brought into question the NCIC and government system of background checks. What we now know about Devin Patrick Kelley:
- He was convicted in the military of a prohibitive crime e.g. domestic violence.
- The Air Force did not send the conviction to the FBI.
With a single source database, Devin Kelley was allowed to purchase an AR-556 in San Antonio. Why?
- The conviction in the military was not sent to FBI; AND
- The unstable Devin Kelley did NOT self-disclose and check a box acknowledging that he had a prohibitive conviction. How many criminals would have the integrity to admit to their criminal history? Self-disclosure systems are ludicrous.
Over the week, I have heard so many in Congress put forth ideas to quickly solve the issue:
- Call a voice vote to mandate all data providers send their information to the FBI. Was this not a requirement before?
- Universal background checks. How do universal background checks solve the problem of Kelley being able to buy a handgun? NCIC was already clear. That is the problem, you could check NCIC a hundred times and if the data is not there, it is not there.
I took a call while writing this article from a friend who works in federal law enforcement, and we were discussing the incident. That’s what law enforcement officers do. Look at the evidence and determine what we can learn to prevent or minimize the occurrence of another incident like this.
Then he asked me the magic question. “Could your background checks have flagged this?” In all honesty I explained that there is much we don’t know, and I have not run Devin Kelley’s name through our screening process.
I also told him that we don’t do background checks for gun permits because that requires NCIC; however, a comprehensive private background check using a myriad of available solutions might have flagged him:
- Something caused TX to refuse the gun permit - something other than NCIC.
- County criminal searches may have revealed arrests.
- An ITRV (Income Tax & Employer Verification) would have revealed his military history and prompted a search of his military records. This was the most likely way of flagging Kelley without an honest self-disclosure.
- A Civil search may have found a protective order if one had been issued which is very common in domestic violence cases.
- DCS Index Checks. These can be conducted in TX, not in NM, but a check could have revealed issues with child abuse that could have lead to a criminal case.
Understand that all of this is hypothetical and intended to simply show a small snapshot of how private screening firms might approach a background check like this. It is the layers of checks and balances that provide the comprehensive nature of a thorough search.
At the end of the day, we do not need more gun laws. We have laws prohibiting Kelley from purchasing guns.
We do not need laws requiring reporting to NCIC (I am sure they exist), but we need a larger debate on whether private screening firms can play an active role in the background screening process. We need to have healthy engagement in Congress and in the states where private firms are being excluded even though they can provide comprehensive screening solutions that are often times faster and much more cost effective.
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