www.baltimoresun.com/news/maryland/sun-investigates/bs-md-gun-backlog-20140111,0,3366491.story

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New debate rises over Maryland gun law

Backlog in background checks put gun in hands of carjacking suspect

By Timothy B. Wheeler and Erin Cox, The Baltimore Sun

10:01 PM EST, January 11, 2014

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More than 200 guns were sold to people legally barred from owning them as a surge in firearms sales last year overwhelmed Maryland's background check system, according to state police.

One gun was sold to a man later accused of using it in a carjacking in Prince George's County, police acknowledged in response to queries from The Baltimore Sun.

The sales occurred last year as part of a flurry before Maryland's tough new gun law — enacted following the school massacre in Newtown, Conn. — took effect. With Maryland State Police unable to keep up with the flood of background checks, some dealers distributed firearms to customers after waiting seven days, as they were allowed to do under state law. With the backlog mounting, dealers released more than 50,000 guns before checks were completed, state police said.

The agency has been months behind in completing some checks and is still tackling a backlog of more than 30,000 applications.

The number of firearms that wound up in the wrong hands has continued to climb since The Sun reported last summer that two dozen guns went to people barred from ownership. While all but six of the weapons have been recovered by troopers, the revelation that the backlog contributed to a violent crime is triggering a new debate over Maryland's firearm safety law.

"There was a failure of leadership in making sure that people who had prior felonies and convictions had no access to guns," said Attorney General Douglas F. Gansler, a Democratic candidate for governor. "It was not managed well.  When there's a failure of leadership, people can get hurt."

Gov. Martin O'Malley, who championed the law that took effect in October, played down the significance of hundreds of guns ending up in the hands of people who ultimately failed background checks.

"In spite of this one unfortunate occurrence, the vast majority of guns released by dealers prior to the completion of a background check have been recovered quickly and without incident," O'Malley press secretary Nina Smith said in a statement.

The victim in the carjacking Oct. 9 in Lanham was unhurt, a Prince George's County police spokeswoman said. The next day, police arrested Davion Lavonta Ballinger of Upper Marlboro, who they said was 21, and charged him in the incident. Police recovered a pistol that state police spokesman Gregory Shipley said had been released by the seller before the agency could carry out a background check that would have revealed that the recipient was legally disqualified from owning a gun.

Shipley declined to say why Ballinger was barred from gun ownership, but his criminal record includes a 2009 arrest for armed robbery when he was a juvenile, which could have led to revocation of his gun rights in Maryland. That case was transferred to juvenile court, where the disposition is not public. Ballinger's lawyer declined to comment Friday.

Dealers and individual sellers released at least 220 guns to 213 people who ultimately failed background checks, Shipley said. By law, sellers can release a gun after waiting seven days, regardless of whether police have checked out the buyer.

Shipley acknowledged that there could well be other cases as state police work through the backlog of checks pending on gun sales that go back to late August.

"It's a mess," said Fred Kirchner, owner of a Chestertown gun shop and vice president of the Maryland Association of Firearms Retailers.

He says that state police have needlessly complicated the state's background check system and that he suspects that many of the buyers caught after the fact made "administrative errors" in filling out a screening questionnaire.

"That's the state police's fault, 100 percent," said Del. Michael D. Smigiel Sr., a Republican representing the upper Eastern Shore who champions gun owners' rights in the General Assembly. Smigiel has introduced a bill to repeal last year's sweeping gun control law, which bars the sale of some semiautomatic assault-type weapons and imposes new training and fingerprinting requirements and fees on handgun purchases.

Sen. Brian E. Frosh, who helped steer passage of O'Malley's gun control legislation, said the backlog stemmed from "panic buying" stirred by gun-rights advocates, which has subsided. The Montgomery County Democrat said dealers were "playing with fire" when they released more than 50,000 guns before background checks could be performed.

State police have reduced the backlog of checks from a peak of 60,000 in October. But it could be five months before all the checks are completed, Shipley said.

"We're doing everything we can to accelerate the pace,'' he said. "We're not backing off any of our efforts until we get this completed."

Screening bogged down last year amid record sales of regulated firearms, with 121,000 applications filed in Maryland. The process initially defied streamlining, police officials said, as screeners had to manually check a prospective buyer's name against 16 databases.

Those seeking to acquire a gun must fill out a two-page form with 21 questions about whether they have a criminal record or other circumstances that preclude them by law from owning a firearm.

Circumstances barring gun ownership include felony convictions; juvenile offenses that could have resulted in more than two years in prison if committed as an adult; being the subject of a current civil protective order; three or more alcohol offenses, with one in the past year; involuntary commitment for a mental problem, or voluntary admission for a month; and dishonorable discharge from the military.

The state police brought in a computer consultant last summer to help automate the database checks. The agency plans to ask the state Board of Public Works to retroactively approve a $500,000 contract running through June with TCC Software Solutions of Indianapolis.

State police also enlisted the help of local law enforcement agencies, which have detailed nearly three dozen officers to help reduce the backlog, Shipley said. And an all-hands effort was launched last fall to assist with data entry, borrowing workers from other state agencies.

The pace of gun sales has slowed considerably, enabling state police to keep up with the 4,176 applications to buy firearms and 4,854 requests for handgun licenses since Oct. 1, when the law took effect. Aided by a boost in staff to conduct background checks, the agency approved 4,559 of the license requests within the mandated 30-day review deadline, Shipley said.

The crush of applications before the law went into effect, however, has swamped state police resources. Shipley said police are now reviewing purchase applications filed at the end of August and in early September. Gun dealers released 50,489 weapons to buyers before state police could review the transactions, he said.

The form that buyers fill out warns that giving a false answer to any of the questions is a crime that could result in a fine or imprisonment.

Shipley said authorities have filed perjury charges against 60 of the 867 people whose applications to buy firearms last year were disapproved. Of the 213 caught after they got their guns, Shipley said he could not provide a breakdown of the reasons for disqualifying them. But he said there were no murderers or rapists among them. The charges that tripped up applicants were often "less serious crimes," he said, such as telephone misuse, drug charges, assault, even a suspended driver's license.

Del. Jon S. Cardin has introduced a bill to bar gun sales or other weapon transfers until background checks have been completed. The Baltimore County Democrat said he was "deeply concerned" to learn that more than 200 guns had gone to people with criminal records or other circumstances that disqualified them from having a firearm.

"Until this loophole is closed, we will continue to see ineligible individuals obtain handguns," said Cardin, one of four Democrats running for state attorney general. "Unfortunately, that puts us all in danger while giving rightful gun owners a bad reputation."

Gun rights advocates say they will fight Cardin's bill as an infringement of citizens' constitutional right to own firearms.

"This person who is purchasing this firearm is innocent until proven guilty," said Kirchner, the Chestertown gun dealer. "It would be wrong to stop him from having his right."

Kirchner said he and other dealers were following the law in releasing guns to buyers after seven days. He said he did so only with customers he knew personally or who had responsible jobs that he felt made it likely that they would pass background checks. He said he has withheld firearms from purchasers because he didn't know them.

Gun rights advocates say Maryland's screening process is unnecessarily tedious. Most states allow gun dealers to check a buyer's name against a nationwide criminal records database maintained by the FBI. Maryland requires the checks to be performed by state police.

Smigiel said he intends to introduce a bill that would require Maryland to furnish all relevant background-check data to the federal database and let dealers use it instead of waiting for state police to do the screening.

"The law only says [do] 'background checks,'" Smigiel said. "If it's such a burden for the Maryland State Police to do their job and comply with the law, we'll gladly give it over to the federal government. It works in over 40 some states. Why shouldn't it work here also?"

Shipley said state police do not rely solely on the federal database because it does not include all of the information needed for a background check under Maryland law.

"We were not going to sacrifice safety for speed," he said. "We have continued to do a thorough job, even when faced with these unprecedented numbers."

Frosh says dealers may have been within the law in releasing guns without a background check after seven days, but they knew they were running a risk of selling a gun to someone who shouldn't have one.

"It's constitutional to keep guns away from people who we have reason to believe are dangerous," said Frosh. "They're more interested in making a sale than they are in ensuring that people are going to be safe. It's irresponsible; it's dangerous; they're playing with fire."

tim.wheeler@baltsun.com

erin.cox@baltsun.com