After shocking murders such as the one in Virginia yesterday, there are the predictable calls for more and/or better gun control, particularly regarding background checks. In the case of Flanagan, he purchased his gun legally and apparently passed a background check:
On August 26 Alcohol, Tobacco, Firearms and Explosives (ATF) spokesman Thomas Faison confirmed that Virginia gunman Vester Lee Flanagan bought his gun “weeks ago” and that “he apparently passed a background check” to get the gun.
The gun was a Glock 19 9mm.
Let’s take a look at the questions asked for legal firearm purchase in the state of Virginia. You can see that they fall into several general categories: being under active misdemeanor or felony arrest warrant, being under indictment or conviction for a felony, having had a conviction of misdemeanor punishable by more than 2 years in prison (even if not given a prison sentence), having undergone involuntary psychiatric commitment or been ordered to involuntary mental health counseling, being an unlawful user or addict of a controlled substance, being under a restraining order for domestic violence, having been convicted of the misdemeanor crime of domestic violence, having been dishonorably discharged from the armed forces, being an illegal alien, plus a couple of other miscellaneous categories having to do with being judged mentally incompetent.
As far as we know, none of them applied to Flanagan. So he could have answered truthfully and purchased a gun legally, despite the fact that there was a veritable mountain of evidence that he was, as he himself described in his farewell manifesto, a “human powder keg… just waiting to go BOOM!!!!”
In fact, Flanagan had gone “BOOM!” (at least verbally) many, many times. Much of his history is detailed here, and it involved threats at work in addition to appalling incompetence, He was ordered by his bosses to undergo some sort of counseling, described this way:
After getting ‘very angry’ and storming off while filming another July 2012 report Flanagan was warned he would be fired unless he sought help from the company health advocate.
‘This is a mandatory referral requiring your compliance,’ Dennison told Flanagan. ‘Failure to comply will result in termination of employment.’
After continuing to argue with colleagues and averaging just 2.9 out of 5 in his June 2012 performance review, Flanagan was fired in February 2013 due to his ‘unsatisfactory job performance and inability to work as a team member.’
It is unclear whether that comes under number 12 in the Virginia background check laws, which reads as follows:
Have you ever been involuntarily admitted to a facility or involuntarily ordered to outpatient mental health treatment?
I believe that it depends on who is doing the involuntary “ordering,” and that a work-related order would not disqualify anyone and does not apply. In addition, I don’t think a work-related order enters the public records, and therefore would be unverifiable anyway (please correct me if I’m wrong there).
Flanagan’s threats and bad behavior ultimately came to the attention of the police:
Yet Flanagan was fired in February 2013 due to “unsatisfactory job performance and inability to work as a team member”, according to his notice of termination.
His last day at work was recorded in exhaustive detail in another series of memos. Flanagan met with Dennison and another boss in his office. There Flanagan was informed he would be terminated. When he was presented with the severance package, Flanagan reportedly became angry and called it “bullshit”.
A second memo detailing his termination records Flanagan as yelling: “I’m not leaving, you’re going to have to call the f###ing police [sic],” Flanagan reportedly said, according to the memo. “Call the police. I’m not leaving. I’m going to make a stink and it’s going to be in the headlines.”
Flanagan then stormed out of the room and slammed the door, at which point Dennison decided to call the police.
When police arrived to escort him out of the building, Flanagan refused. The officers approached Flanagan and tried to remove the desk phone from his hand, repeatedly asking him to leave.
Flanagan then threw a hat and a small wooden cross at Dennison, reportedly saying: “You need this.”
As police escorted him out of the newsroom, he told an officer, according to the memo: “ You know what they did? They had a watermelon back there for a week and basically called me a n—– [sic].”
The memos were filed to a court in Roanoke, Virginia, as part of a civil lawsuit filed by Flanagan against the station in March 2014. He alleged racial and sexual discrimination, which the station denied. The case was dismissed later that year.
It occurs to me that the station (or individuals there) might have tried to get a protective order (known in many jurisdictions as a restraining order) against Flanagan—not that it would have stopped him from killing anyone (and by the way, none of this would have stopped him from getting a firearm illegally). But it might have stopped him, or someone who likewise was an obvious “human powder keg,” from getting a firearm legally—if, that is, if Virginia law did not limit its restrictions of legal gun purchases to those under restraining order for domestic violence.
If you read numbers 7 and 8 of the Virginia law, for example, they very specifically limit the scope of the law to restraining orders described this way:
7. Is there an outstanding protective or restraining order against you from any court that involves your spouse, a former spouse, an individual with whom you share a child in common, or someone you cohabited with as an intimate partner?
8. Is there an outstanding protective or restraining order against you from any court that involves stalking, sexual battery, alleged abuse or acts of violence against a family or household member?
Protective/restraining orders are not only issued for threats to domestic or former domestic partners, however. They can be gotten (and as far as I know this is true in most areas) by unrelated people who have been threatened. The problem with restraining orders in these non-domestic cases would be twofold, however. The first problem is that, as with cases involving domestic partners, there is always the possibility of a false accusation resulting in a restraining order without merit, requested in order to thwart or harass the person being accused. The second problem is that the system for a firearm purchase background check must also involve some effective and efficient mechanism to check against the court record of outstanding restraining orders that have been issued, or it rests on the truthful disclosure by the accused. I don’t know how that verification system works in Virginia or other states, but I do know that it should not be on the honor system.
There seems to be no logical reason for the Virgina law about restraining orders precluding a person from purchasing a gun to be restricted to domestic orders only (although there may be a political and/or historic reason). Nor is there any evidence that, in the case of Flanagan, the TV station or any person there ever sought a restraining order against him, although in his case the police themselves had witnessed his threats and angry behavior. Did the police write these off as a momentary lapse, an immediate and passing reaction to his firing? But that sort of behavior by Flanagan was part of the cause of his firing, not the result—a fact which seems to have gotten lost in the shuffle of his own lawsuits and multiple allegations of racial discrimination.
Even had the station or someone at the station successfully obtained a restraining order against Flanagan, however, without a law in the gun check rules covering non-domestic restraining orders it wouldn’t have mattered and would not have kept him from obtaining a weapon legally. I’m not for Draconian gun control in the least, but this does seem to be a loophole that could and should be closed It seems that someone with such a clear, repetitive, and well-witnessed (including official police witnesses) record of gratuitous threats of violence should not have been able to obtain a weapon legally.