What Happens When a Background Check Goes Terribly Wrong?

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Jul 14, 2015

It’s a heartbreaking story.

Every time a shooter like the alleged Charleston killer Dylann Roof becomes unhinged and takes innocent lives, we, as a nation, mourn. What makes the story even worse is to think that it all might have been prevented by taking more time with the background check.

Roof is accused of killing nine people at a church in Charleston, South Carolina three weeks ago. Last week, FBI Director James B. Comey said Roof was able to purchase the gun used in the attack only because of lapses in the FBI’s background-check system.

In a statement, Director Comey said “This case rips all of our hearts out. But the thought that an error on our part is connected to this guy’s purchase of a gun that he used to slaughter these good people is very painful to us.”

Mistakes happen. Particularly when time is short. But when the stakes are this high, the best way to avoid catastrophe is to allow sufficient time for a proper background check.

What went wrong?

According to the FBI director’s statement, on Saturday, April 11, Roof attempted to purchase a handgun from a store in West Columbia, South Carolina, a suburb of Columbia. On the next business day, Monday April 13, an examiner began to process the request. Her research revealed an arrest in South Carolina on March 1 on a felony drug charge.

The examiner followed normal FBI protocols, and through no fault of her own, she didn’t have access to the critical details of the arrest in time to stop the purchase of the gun. The details were out there, but the three day National Instant Criminal Background Check System (NICS) limit did not allow sufficient time for a reasonable investigation. As Comey put it:

The report by the Columbia police reflected that Roof admitted he was in possession of drugs. If a NICS examiner saw that, Roof would be denied permission to buy a gun. But the examiner never saw that.”

The exact sequence of events is complicated (you can read the full FBI statement here), but essentially the details of the arrest were not uncovered due to an honest geographical mistake concerning the county of the arrest. Because of the mishap and delays in getting the information from the police department, the three days allowed under NICS lapsed, and the sale was allowed to move forward.

Speed at the expense of quality

The private background screening industry learned long ago that databases and promises of “Instant” background checks were trouble. With the improvements in technology and the rise in use of multi-jurisdictional databases, it’s tempting to think that there is some overnight solution for a criminal background check.

But, there is no such thing as a complete “national” criminal database, and any promise of an instant search is probably a scam. While most screening companies use databases, they should only be used as a tool in conjunction with a hands-on county level search.

The FBI database is no exception. It’s known for its lapses and gaps in information.

Earlier this year, the Government Accountability Office (GAO) released a report of findings from a two year study titled “CRIMINAL HISTORY RECORDS: Additional Actions Could Enhance the Completeness of Records Used for Employment-Related Background Checks.” See my post about that report here.

The trouble with incomplete records

One of the report’s key findings is the woeful state of FBI background checks and law enforcement databases. The number one concern is this: incomplete records. According to the report, around 25 percent of state’s records did not have dispositions. That’s a huge gap.

Those of us in the private sector know from experience that incomplete records can’t be relied upon for hiring decisions; they lead to delays in hiring, rejection of qualified candidates, lawsuits, or worse. Part of the answer for private screening firms is to take the additional time needed to search at the county and local level.

Some courts are slower than others. Some jurisdictions only offer what is referred to as a “clerk assisted” search — which means that the research can only be done by the clerk. Sometimes the record needs to be pulled out of an archive or an ancient paper filing system before being hand delivered to a researcher. That can take weeks.

Clients don’t want to hear that a search is delayed because of a delay in obtaining a court record. But frankly, that’s too bad. It’s just not worth it to take shortcuts. It is literally a matter of life and death.

Fixing the problems

States are working to fix the problems. Just this month, the Columbus Dispatch reported that Ohio Attorney General Mike DeWine “wisely is pushing ahead with replacing Ohio’s dangerously flawed criminal-background-check system.” The 15-year-old computer system has been compared to a “Model T,” and has notoriously missed criminal records on known offenders. The FBI is looking a ways to improve the NICS process.

But meanwhile, the FBI and state agencies are relying on flawed information. Organizations that rely upon a fingerprint search through the FBI database are getting short-changed.

The information is not there. You will miss records; it’s just a matter of time. The private sector has better solutions –albeit the cost more and take longer. Strict time limitations, like the three day limit on NICS checks, simply do not allow sufficient time for the process to work.

Would a private background company have found the record in the Roof case? Probably. But it most likely would have taken more than three days. It just doesn’t work that fast.

If the FBI can’t get the information that quickly, it’s unlikely a private researcher would fare much better. But the point here is that quality takes time. And when lives are at stake, it’s worth it to take that extra day, or even weeks, to get it right.

This was originally published on the EmployeeScreen IQ blogEmployeeScreen IQ is not a law firm, and the contents of this article are not intended to be a substitute for legal advice.

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