This report was prepared by SEARCH and the National Center 

for State Courts using federal funding provided by the Bureau of 

Justice Statistics (BJS). 

Document Title:	 State Progress in Record Reporting 

for Firearm-Related Background 

Checks: Unlawful Drug Users 

Author(s):	 Becki Goggins; Shauna Strickland 

Document No.: 250782 

Publication Date:	 July 2017 

Award No.:	 2011-MU-MU-K054 

This is the sixth in a series of BJS grant-funded reports on 

firearm-related background checks. Under the Brady Handgun 

Violence Prevention Act, being an unlawful user or addicted to 

a controlled substance prohibits a person from receiving 

firearms. The report describes how firearm-related background 

checks relate to unlawful drug users and their records that 

prohibit purchasing or possessing firearms on various national 

and state systems. This report provides an overview of drug 

offenses and indicators that determine if a person is prohibited 

from purchasing or possessing a firearm. It also describes the 

challenges to identifying and providing relevant records, 

including strategies some states use to improve reporting. 

Findings, opinions, or points of view expressed in this report 

are those of the author(s) and do not necessarily reflect official 

findings, positions or policies of the Bureau of Justice 

Statistics or the U.S. Department of Justice. 
 

Unlawful Drug Users 

By Becki Goggins, SEARCH, The National Consortium for Justice Information and Statistics and Shauna 

Strickland, National Center for State Courts 

State Progress in Record Reporting for Firearm-Related Background Checks: 

July, 2017
 

Introduction

Under the Brady Handgun Violence Prevention Act of 1993 

(Brady Act) as codified at 18 U.S.C. § 922(g)(3), being an 

unlawful user of or addicted to a controlled substance 

prohibits a person from receiving firearms.1 The National 

Instant Criminal Background Check System (NICS) 

Improvement Amendments Act (NIAA) of 2007 defines 

“unlawful drug use” records as those that identify a person 

unlawfully using or addicted to a controlled substance, as 

demonstrated by specified arrests, convictions, and 

adjudications that are not protected from disclosure to the 

Attorney General by federal or state law.2 

These include the following criminal history records that 

are typically available through the Interstate Identification 

Index (III):

3

•		 Multiple arrests for use or possession of a controlled 

substance within the past 5 years if the most recent 

arrest occurred within the past year; 

•		 Convictions for use or possession of a controlled substance 

within the past year (regardless of offense type) 

•		 Certain convictions for possession of drug paraphernalia 

within the past year. 

Unlawful drug use records may also be noncriminal history 

records, which can be made available through the NICS 

Index: 

•		 Persons who test positive for use of a controlled 

substance within the past year 

•		 Persons who admit to the use of a controlled 

substance within the past year. 4 

The NICS Index included nearly five times as many unlawful 

drug use entries in 2016 than it did in 2008, due to ongoing 

state and federal efforts to improve this category of records. 

1 The term "controlled substance" means a drug or other substance, or immediate 

precursor, included in schedule I, II, III, IV, or V of part B of 21 U.S.C. § 802. 

2	 https://www.gpo.gov/fdsys/pkg/PLAW-110publ180/pdf/PLAW-110publ180.pdf 

3	 https://www.fbi.gov/services/cjis/nics/about-nics 

4	 http://gao.gov/assets/600/592452.pdf 

Unlawful Drug Use Records in the NICS Index 

12/2008 5,601 10,778

12/2016 22,831

0 5,000 10,000 15,000 20,000 25,000

Note: Records were submitted by both state and federal agencies. 

Source: https://www.fbi.gov/file-repository/active-records-in-the-nicsindex-by-state.pdf/view

Many of these improvements are the result of funds 

awarded to states by the U.S. Department of Justice, 

Bureau of Justice Statistics (BJS) through the NICS Act 

Record Improvement Program (NARIP). This program 

administers the grant provisions of the NIAA that was 

signed into law on January 8, 2008, following the April 

2007 shooting tragedy at Virginia Tech. The Virginia Tech 

shooter was able to purchase firearms from a Federal 

Firearms Licensee (FFL) because information about his 

prohibiting mental health history was not entered into the 

NICS Index. The NIAA is intended to address the gaps in 

information available to the NICS about prohibiting mental 

health adjudications, involuntary mental health 

commitments, and other prohibiting factors. BJS began 

awarding NARIP funds to states in 2009, and as of 2016 

more than $110 million in funding has been awarded to 27 

states and one tribe. 

While many of the records that are used to deny a firearms 

transfer based on unlawful drug use are available through 

III (i.e., arrests and convictions for controlled substancerelated crimes) noncriminal records are often missing. This 

information includes records for positive drug screens and 

persons’ admission of substance abuse. As of December 

31, 2016, 26 states had no unlawful drug use entries in the 

NICS Index, which is where prohibiting noncriminal records 

should be included so they are available nationally for 

firearms related background checks.5 Many other states 

had very few unlawful drug use records in the NICS Index. 

1 | State Progress in Record Reporting for Firearm-Related Background Checks: Unlawful Drug Users 

5 https://www.fbi.gov/file-repository/active-records-in-the-nics-index-by-state.pdf/view 
2 | State Progress in Record Reporting for Firearm-Related Background Checks: Unlawful Drug Users 

 

 

Background 

The Brady Act, among other things, created the NICS. 

The NICS is the national system that enables FFLs to initiate 

a background check through the FBI or a state Point of 

Contact (POC). The FBI or POC will check available records 

to identify persons who may be prohibited from possessing 

or purchasing a firearm. The records may be included in 

the following databases. 

•		 National Crime Information Center (NCIC) – An electronic 

database consisting of 21 files, 10 of which are queried 

for a NICS-related background check. These files help 

criminal justice professionals apprehend fugitives 

from justice, locate missing persons, recover stolen 

property, identify terrorists, and verify persons subject to 

protection orders. 

•		 III – Administered by the FBI, and participated in by 

all states, the III is a fingerprint-supported automated 

criminal records exchange system that includes arrest 

and disposition information for individuals charged 

with felonies or misdemeanors. Information that may 

be available via III includes persons who are fugitives 

from justice, persons found not guilty by reason of 

insanity or adjudicated to be incompetent to stand trial, 

persons found guilty of misdemeanor crimes of domestic 

violence, and persons under indictment. 

•		 NICS Index – The NICS Index contains biographic 

information contributed by local, state, tribal, and federal 

agencies pertaining to persons prohibited from receiving 

a firearm pursuant to state and/or federal law. While any 

disqualifying record may be entered into the NICS Index, 

it is not intended to duplicate information entered in 

NCIC or III. Instead, the database was designed to house 

disqualifying information not otherwise available at the 

national level. 

•		 Department of Homeland Security’s U.S. Immigration and 

Customs Enforcement (ICE) – Relevant ICE databases are 

queried by the FBI NICS Section, and can be queried by 

POC states, for non-U.S. citizens attempting to receive 

firearms in the United States. 

States acting as a POC also search additional databases 

containing state and local court and law enforcement 

records. Such records may render prospective gun purchasers 

disqualified under federal and/or state laws. 
3 | State Progress in Record Reporting for Firearm-Related Background Checks: Unlawful Drug Users 

NICS Participation Map
 

Point of Contact (POC)

American Samoa 

Guam 

Northern Mariana Islands 

Puerto Rico 

U.S. Virgin Islands 

Other U.S. Territories 

WA 

AZ 

TX 

KS 

UT 

NV 

CA 

ID 

MT ND 

NE 

IA 

AR 

MS AL 

LA 

GA 

MI

WY 

WV 

NC 

SC 

AK 

HI 

KY 

OR 

NM 

OK 

CO 

SD 

MN 

MO 

FL 

WI 

IL IN 

OH 

NJ 

NY 

CT RI 

MA 

NH 

ME 

PA 

VA 

DE 

DC 

MD 

VT 

TN 

26 

13 

4 

3 

36 

At Least One ATF-Qualified Alternate Permit — The permits are issued by local or state agencies. 

Full POC State — Contact state/territory for all firearm background checks including permits 

Partial POC — Contact state for handgun and FBI for long gun background checks 

Partial POC — Contact state for handgun permit and FBI for long gun background checks 

Non-POC — Contact FBI for all firearm background checks 

Please refer to the latest Permanent Brady Permit Chart for specific permit details at 

www.atf.gov/rules-and-regulations/permanent-brady-permit-chart 
4 | State Progress in Record Reporting for Firearm-Related Background Checks: Unlawful Drug Users

Where are NICS Prohibiting Records Reported? 

The following lists the firearm purchase-prohibiting categories identified in the Brady Act and shows the federal database 

in which those records are appropriately stored. 

Prohibiting Record Type Federal Database(s)

Felony/Serious Misdemeanor 

Convictions 

lll: Should most appropriately be placed 

here so they are available for other 

criminal justice purposes. 

NICS Index: Should be placed here 

if not available in III. 

Fugitives from Justice6 NCIC: Should most appropriately be 

placed here so they are available for 

other criminal justice purposes. 

NICS Index: Should be placed here 

if not available in NCIC. 

Unlawful Drug Use lll: Arrests and convictions for drug 

offenses should most appropriately be 

placed here so they are available for 

other criminal justice purposes. 

NICS Index: Information such as 

admission of use and failed drug tests 

should be placed here. 

Mental Health III: Persons found not guilty by reason of 

insanity or adjudicated to be incompetent 

to stand trial should most appropriately 

be placed here so they are available for 

other criminal justice purposes. 

NICS Index: Involuntary commitments 

to mental institutions for the purpose 

of treatment should be placed here as 

they would be otherwise unavailable for 

firearms background check searches. 

Persons found not guilty by reason of 

insanity or adjudicated to be mentally 

defective should most appropriately 

be placed here if they are otherwise 

unavailable through III. 

Subjects of Domestic Violence 

Protection Orders 

NCIC: Should most appropriately be 

placed here so they are available for 

other criminal justice purposes. 

NICS Index: Should be placed here if 

not available in NCIC (as well as orders 

prohibited under state law). 

Misdemeanor Crimes of 

Domestic Violence Convictions 

lll: Should most appropriately be placed 

here so they are available for other 

criminal justice purposes. 

NICS Index: Should be placed here if not 

available in III or, if conviction is available 

in III, should also be placed here if 

qualifying relationship and/or force 

element is not available in III. 

Indictments lll: Should most appropriately be placed 

here so they are available for other 

criminal justice purposes. 

NICS Index: Should be placed here 

if not available in III. 

Dishonorable Discharges III: Should most appropriately be placed 

here so they are available for other 

criminal justice purposes. 

NICS Index: Should be placed here 

if not available in III. 

Illegal or Unlawful Aliens NICS Index: Should be placed here as 

they would otherwise be unavailable 

for firearms background check searches. 

Renounced United States 

Citizenship 

NICS Index: Should be placed here as 

they would otherwise be unavailable 

for firearms background check searches. 

6 To determine if someone is a fugitive from justice, NICS must establish that the

prospective purchaser: 1) has fled the state; 2) has done so to avoid prosecution

for a crime or to avoid giving testimony in a criminal proceeding (intent); and

3) is subject to a current or imminent criminal prosecution or testimonial obligation. 
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Challenges to Entering Noncriminal Justice Unlawful Drug Use Records in the NICS Index
 

Lack of Centralized Records Management Systems for Law 

Enforcement Agencies 

Often the most critical information that can be used to 

determine illegal drug use or possession exists within 

incident reports generated by local law enforcement agencies. 

While the FBI encourages law enforcement to include details 

about persons found in possession of controlled substances 

in their arrest reports and requests that test results be included 

if a suspected controlled substance is confirmed by a field 

and/or laboratory test, many of these records are not routinely 

shared as a part of any statewide or national system.7

 While 

this information is often readily available at the local agency 

through a records management system (RMS), FBI NICS Section 

examiners and POC state examiners may not have access to 

these systems. Because examiners typically do not have access 

to local RMS systems, it is vital that local agencies place 

disqualifying records in systems that are searched as a 

part of a NICS firearms background check. 

Problem-solving Courts 

Problem-solving courts are a widespread alternative to 

traditional models of adjudication. They are intended to 

address the underlying causes of crime (e.g., drug addiction, 

alcoholism, mental health problems) rather than simply 

responding to crimes once they have occurred. For instance, 

a person may be arrested multiple times for vagrancy due to 

suffering from an untreated mental illness. The goal of 

problem-solving courts is to address the root problem of a 

person’s criminal behavior. These courts channel the 

persons into a program, typically for 12 or more months, 

during which they report often to the court and participate 

in a wide range of therapies designed to treat the 

underlying problem that instigated their case. These courts 

are designed to take cases prior to judgment (pre-plea) or 

following judgment (post-plea). In some problem-solving 

courts, a condition of the program is that the original case is 

dismissed or expunged upon successful completion of the 

program. 

Drug Courts 

All states now have drug courts in many or all jurisdictions.8 

In many cases, individuals are allowed to participate in a drug 

court in exchange for having criminal charges dismissed upon 

successful conclusion of the drug court treatment program. 

One of the main conditions of drug court is to abstain from 

using any unlawful controlled substance for a set period of time. 

Drug court participants are routinely subject to drug testing 

to monitor and enforce compliance with this condition. 

Many judges and drug court administrators have embraced 

research showing that relapse is a part of breaking the cycle 

of addiction. Consequently, a person will not necessarily be 

dismissed from a drug court program as a result of one or more 

positive drug tests. In these cases, there is a reluctance to 

include information about illegal drug use in the NICS Index. 

The fear is that one could deny a firearms transfer to a person 

who is in recovery and has successfully completed drug court, 

even after other legal barriers have been eliminated (e.g., 

expungement/sealing of the arrest for a controlled substance 

crime, dismissal of charges). Finally, the terms of 

participation in the program may bar the court from sharing 

this information for any purpose other than the program itself. 

Drug courts are not only for individuals charged with drug 

crimes. Persons with substance abuse disorders who have 

committed property crimes such as burglary or theft are often 

assigned to drug court as their addiction plays an underlying 

role in why they are committing crimes. For instance, an 

offender charged with burglary or theft may have intended 

to trade stolen property for cash to buy drugs. 

Mental Health Courts 

According to the BJS report titled Mental Health Problems 

of Prison and Jail Inmates, “more than half of all prison and 

jail inmates have mental health problems.”9 The same report 

reveals: 49% of inmates in local jails have both mental health 

and substance abuse problems, 19% have substance abuse 

7 U. S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division,

National Instant Criminal Background Check System (NICS) Law Enforcement Guide. 

8 http://www.nij.gov/topics/courts/drug-courts/pages/welcome.aspx 

9 http://www.bjs.gov/index.cfm?ty=pbdetail&iid=789 
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problems only, and 15% have mental health problems only. 

In an effort to defeat the cycle of persons with behavioral 

health disorders moving in and out of jails, many 

jurisdictions have implemented mental health courts. 

According to BJS, there were 337 mental health courts as of 

2012.10 Since co-occurring disorders are so prevalent in the 

justice-involved population, participants in mental health 

courts are also commonly subject to random drug tests. 

Once again, there may be reluctance by court officials to 

enter illegal drug use records into the NICS Index as this is 

often viewed as being in conflict with the legal agreement 

between the court and the defendant regarding their 

participation in the mental health court program as such 

agreements usually include the possibility that charges could 

be dismissed or expunged upon successful completion. 

Misunderstanding of the Health Insurance Portability and 

Accountability Act Privacy Rule and 42 Code of Federal 

Regulations Part 2 

In the past, many court and criminal justice officials have 

expressed reluctance to share substance abuse information 

due to concerns about violating the provisions of the Health 

Insurance Portability and Accountability Act (HIPAA) Privacy 

Rule and 42 Code of Federal Regulations (C.F.R.) Part 2.11 

However, both of these regulations only apply to 

“covered entities.” The covered entities for HIPAA, which 

governs access to personal health information (PHI), are 

health plans, health information clearinghouses, healthcare 

providers and business associates (e.g., third party claims 

processors, medical transcriptionists).12 The covered entities 

for 42 C.F.R. Part 2, which applies specifically to the 

confidentiality of substance abuse patient records, 

are federally assisted programs that identify themselves 

as providing substance abuse/mental health diagnosis, 

treatment, or referral for treatment. While it is common for 

correctional facilities to declare themselves as covered 

entities because they provide and/or contract for medical 

and behavioral health services, other criminal justice 

agencies do not meet the federal definition. 

In 2010, the U.S. Department of Health and Human Services 

(HHS) provided guidance clarifying that law enforcement 

officials, courts, and community supervision personnel 

(probation and parole officers) are not covered entities 

under HIPAA or 42 C.F.R. Part 2.13 Thus, they may disclose 

PHI that they learn directly from a subject (or about a 

subject in the case of a drug test) without violating federal 

law. However, the guidance states that certain state laws 

may be more restrictive and override the federal guidance 

on sharing PHI. Additionally, criminal justice agencies may 

not re-disclose information obtained from a covered entity 

except in very rare circumstances where the subject of the 

PHI is a danger to himself or others. 

While court and community supervision staff are not 

typically covered entities, treatment providers are if they 

receive federal funds or are otherwise considered federally 

assisted. In order for community supervision staff or the 

problem-solving court team to make use of the treatment 

and testing data gathered by treatment providers, many 

jurisdictions make use of a consent form signed by the 

probationer, parolee, or participant in the problem-solving 

court. This allows the drug treatment and testing data to 

be shared with community supervision staff and problemsolving court teams, but expressly prohibits the sharing 

of this information for any other purpose.14 This means 

that the results of drug tests administered by court or 

community supervision personnel may be submitted to 

the NICS Index while those administered by a treatment 

provider typically may not. While the recent federal 

discussion and clarification has helped, HIPAA is still a 

complex issue for many entities that would be responsible 

for submitting noncriminal data to the NICS Index. 

Lack of Centralized Database for Failed Drug Tests 

Failed drug tests are the most common type of noncriminal 

NICS Index entries for unlawful drug use.15 Drug testing can 

occur at many points during the criminal justice system 

including, but not limited to: 

10 http://www.bjs.gov/content/pub/pdf/cpsc12.pdf 

11 https://www.bja.gov/Publications/CSG_CJMH_Info_Sharing.pdf 

12 https://www.cms.gov/Regulations-and-Guidance/Administrative-Simplification/

HIPAA-ACA/AreYouaCoveredEntity.html 

13 https://www.bja.gov/Publications/CSG_CJMH_Info_Sharing.pdf 

14 http://www.jhconnect.org/wp-content/uploads/2013/09/42-CFR-Part-2-final.pdf 

15 http://gao.gov/assets/600/592452.pdf 
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•		 Released on recognizance processing 

•		 Pre- or Post- booking into a detention facility 

by law enforcement 

•		 Pre- or Post- arraignment on criminal charges 

•		 Intake or release from a correctional facility 

•		 While on pretrial release 

•		 During post-conviction community 

supervision 

In many cases, persons who have been in jail (or who have 

been released pending trial or on community supervision) 

may already have a disqualifying criminal history record in III. 

This could include information about drug-related arrests and 

convictions. In these cases, disqualifying information would 

already be available as a part of a NICS check. Conversely, there 

are circumstances where creating a NICS Index entry for unlawful 

drug use would be the only disqualifying record available during 

a firearm background check. For instance, a person could be 

arrested for a nondrug related misdemeanor charge. In this 

case, the arrest (and subsequent conviction, if applicable) would 

not necessarily result in a firearms denial. However, if the 

person tested positive while under community supervision 

and probation staff submitted this information to the NICS 

Index, this would cause a denial—as long as it was less than 

a year since the positive drug screen. Or, a person may be 

on pretrial release for a felony charge that has not gone to 

trial. While the indictment is a disqualifying record and 

should be made available through the NICS Index or III, the 

submission of an unlawful drug use record for a defendant 

that tests positive on a drug screen ensures that the individual 

is prevented from obtaining a firearm from an FFL. 

Unfortunately, there are typically no centralized databases for 

pretrial and community supervision information within state 

or local jurisdictions. This means it is difficult to assess the 

extent to which noncriminal records (e.g., drug test records) 

could significantly impact the number of firearms denials 

if they were made available through the NICS Index. 

It also means there is no single source from which to 

submit unlawful substance use records to the NICS Index. 

Offenders seeking to be released on bond or on their own 

recognizance may be interviewed to see if they qualify for 

diversion through drug court. An admission of drug abuse 

in this scenario–whether or not it is confirmed by a 

subsequent drug test–is an allowable entry in the NICS 

Index. These records automatically expire in 1 year from 

the date the subject admitted unlawfully using drugs. 

State Laws Regarding Medical Marijuana and 

Recreational Marijuana Legalization 

As of November 9, 2016, 26 states have legalized marijuana in 

some form – including seven states and the District of Columbia 

that now allow its recreational use.16 Other states have effectively 

decriminalized the possession of small amounts of marijuana. 

Despite these state-level policy changes, the Bureau of Alcohol, 

Tobacco and Firearms (ATF) maintains that federal law still 

prohibits the use of marijuana for any purpose even if it 

is sanctioned by state law.17 This creates several potential 

issues for states where legalization of marijuana has occurred: 

•		 Should law enforcement officials be required to report 

individuals found in possession of marijuana to the NICS 

Index even if it does not constitute a criminal offense 

at the state level? 

•		 Should information about individuals who admit to 

medical or recreational use of marijuana to court 

officials be placed in the NICS Index? 

•		 Will states that have legalized marijuana continue drug 

testing for persons under community supervision? If 

so, should information about persons who test positive 

for marijuana be added to the NICS Index? 

For some states (e.g., Arizona), the problem lies in a direct 

conflict between a state statute that explicitly prohibits the 

sharing of data about those licensed for use of medical 

marijuana with any other agency, state or federal. As more 

states consider marijuana legalization or decriminalization 

this issue will continue to be debated, and it is very likely 

there will continue to be questions and confusion by those 

who need to make regulatory and suitability determinations 

when federal and state laws conflict with each other. 

16 http://www.governing.com/gov-data/state-marijuana-laws-map-medical-recreational.html 

17 https://health.hawaii.gov/medicalmarijuanaregistry/files/2014/11/US-Dept-of-JusticeFirearms-Guidance-9-21-2011.pdf 
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Promising Practices for Reporting Illegal Drug Use Records to the NICS Index
 

Connecticut 

Many illegal drug use firearms disqualifiers may be 

established by a finding of guilt or responsibility for an 

offense involving the actual possession of a controlled 

substance. In 2010, Connecticut determined that many 

arrests for drug possession were not supported by 

fingerprints due to limitations in staffing and equipment 

and/or agency policies among local law enforcement. Since 

only those arrests supported by fingerprints can be included 

in the state’s computerized criminal history repository, 

subsequent dispositions in these cases were not available 

through III. To alleviate this problem, Connecticut received 

NCHIP funds to increase the number of unlawful drug use 

convictions available to the NICS Index. The project involved 

two components: 1) development of a court computer 

system to support the entry of unlawful drug use records in 

the NICS Index; and 2) manual entry of records into the NICS 

Index by contractors while the computer system was under 

development. The project resulted in more than 12,000 

new records in the NICS Index with a standard duration of 1

year, and it provided the framework for future automation. 

In the meantime, Connecticut reduced the penalty 

for simple marijuana possession. By the end of 2011, 

persons caught in possession of less than one-half ounce of 

marijuana were issued a ticket at the scene of the incident, 

with the option to plead “no contest” and pay a fine by mail 

in lieu of opening a criminal court case. If the respondent 

pays the ticket, no information is recorded in the criminal 

court computer system or the state criminal 

history repository. However, since these records constitute 

an admission of unlawful drug use for NICS purposes, 

Connecticut enters these records into the NICS Index as 

well. Once again, the first step was to use contractors to 

manually enter qualifying records into the NICS Index until 

an automated exchange was developed. 

The fine payments for the marijuana violations are recorded 

in a database for minor motor vehicle offenses and similar 

violations that may be resolved outside the courts. Beginning 

in 2014, Connecticut launched an electronic interface 

between the fine payment database, the state’s NCIC frontend system, and the NICS Index to automate the submission 

of these records. More than 3,500 illegal drug use records 

per year are entered in the NICS Index through this system. 

Connecticut also implemented a new computer system 

for all criminal court dispositions in 2017 with significant 

assistance from NCHIP. The new system enables a local 

court clerk to record conviction information in other types 

of cases involving drugs, and when applicable, an illegal drug 

use record is immediately entered in the NICS Index through 

the NCIC front-end system. The new criminal disposition 

system also enables court contractors to analyze drug 

convictions to determine whether a permanent Connecticut 

firearms disqualification applies. If so, court personnel can 

enter a permanent state disqualification record in the NICS 

Index so the information is available for background checks 

with a Connecticut nexus. 
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District of Columbia 

Since 1984, the Pretrial Services Agency (PSA) for the District 

of Columbia has used its own in-house laboratory to perform 

drug tests for pretrial defendants under PSA’s supervision. 

They also test offenders under the supervision of 

the Court Services and Offender Supervision Agency, which 

includes persons on probation, parole, and supervised 

release, as well as respondents ordered into testing by the 

D.C. Superior Court Family Court. The lab performs drug 

tests on tens of thousands of samples each month, and the 

results are entered into the lab’s electronic RMS. 

Several years ago, PSA worked with the FBI NICS Section to 

create an electronic interface to submit information about 

clients who test positive for illegal drugs. When a positive 

drug screen is entered, basic information about the client 

is extracted and placed into a queue to be submitted to the 

NICS Index. Every 7 days, the queued results are 

automatically sent as a batch via a stored procedure 

to the FBI NICS Section. All records are automatically 

set to expire 1 year from the date when the failed 

drug test occurred, so no manual intervention is 

required during the creation or deletion of the 

NICS Index entry. PSA notes that occasionally 

they must respond to cases of mistaken 

identity when a name-based search hits 

on one of their illegal drug use records 

which involves investigation by staff. 

However, the program has been 

in place since November 2013, 

and this is a very infrequent 

occurrence. PSA credits their 

success in contributing unlawful 

drug use entries to their 

automated process. 
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Michigan 

Each year the Michigan State Police (MSP), Firearms 

Records Unit, provides 10 to 12 Michigan Commission on Law 

Enforcement Standards (MCOLES)-certified classes to 

approximately 200 to 300 law enforcement members 

throughout the state of Michigan. The training—which is 

offered to local agencies at no charge— is an 8 hour course 

specifically focused on Michigan and federal firearms 

prohibitions. 

As part of this training, the federal prohibition 18 U.S.C 

(g)(3) for controlled substance use is discussed in depth, 

including the process for entering individuals who are 

prohibited from possessing firearms into the NICS Index. 

Michigan allows medical marijuana, so part of the training 

focuses on the fact that known marijuana users’ 

information should be placed in the NICS Index.18 This 

includes persons in possession of a medical marijuana 

patient or user’s card. However, caregiver, manufacturer, 

and distributor cards are not automatically disqualifying. In 

these instances, 

the contributing agency must still prove marijuana use for a 

person to be prohibited from receiving a firearm. The 

Firearms Records Unit is available to support Michigan law 

enforcement members who have questions on firearms 

disqualifications and the entry of records into the NICS Index. 

Prior to June 2016, Michigan had two methods for entering 

records into the NICS Index: 1) faxing a FBI form along with 

supporting documentation directly to the FBI NICS Section; or 

2) submitting an electronic transaction using the state message 

switch and retaining the supporting documentation. 

In the summer of 2016, MSP worked with the FBI NICS 

Section to test the new firearms prohibitor record submission 

that is now available to authorized Law Enforcement 

Enterprise Portal (LEEP) users. Since many officers routinely 

access LEEP as a part of their daily work, allowing them to 

electronically submit illegal drug use cases through the 

portal will make the process more convenient than the 

current faxing method. Michigan now encourages the use of 

the LEEP to submit disqualifying records along with 

supporting documentation to the NICS Index. 

MSP’s information technology team is also making 

enhancements to the Michigan Law Enforcement 

Information Network that is accessed by all criminal justice 

agencies in the state. The new screens under development 

will support the electronic submission of firearm’s 

prohibitors to the NICS Index. 

18 https://www.law.cornell.edu/uscode/text/18/922 
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Pennsylvania 

The recent increase in the number of illegal drug use records 

forwarded to the NICS Index from Pennsylvania is a bi-product 

of the state’s overall efforts to increase the number of records 

available for firearms background checks. Prior to their NICS 

Index submission project–which focused on all federal 

disqualifiers–Pennsylvania contributed approximately 

50 to 100 illegal drug use records each year via paper 

reports. These were typically records that were revealed 

during routine investigations, but there was not an 

automated method to systematically identify them. 

Prior to establishing the new system, misdemeanors often 

required manual research to determine the presence of a 

disqualifying factor. Today these records are electronically 

identified and made available to the NICS Index through 

an automated exchange, thus significantly decreasing the 

amount of time devoted to researching individual cases. 

Aside from the 1,000+ illegal drug use records made 

available through this project, Pennsylvania has contributed 

approximately 1,000,000 records to the NICS Index in other 

prohibited categories. Paper records are still submitted 

occasionally, for instance, admissions of illegal drug use 

and positive drug tests that are unavailable through the 

criminal history record must still be entered manually. 

However, the NICS Index submission project created a new 

entry path that is much more effective and efficient for most 

entries. Both pathways are crucial to submitting as many 

prohibiting records as the state can identify. 

One of the reasons officials in Pennsylvania sought to implement 

these reforms was a perception that current (or former) 

residents purchasing firearms out-of-state could avoid denied 

transactions since much of the information regarding disqualifiers 

was not available nationally. For instance, the Pennsylvania 

State Police knew that many arrest records were missing from 

III due to poor fingerprint image quality. As a NICS POC state, 

in-state examiners could access multiple local databases to 

research potentially disqualifying records more thoroughly. 

However, these state databases are not accessible 

externally, which created a potential vulnerability, so 

Pennsylvania decided to close these gaps to enhance public 

safety. 

From January 1, 2013, to April 19, 2017, the FBI reported 

that 1,213 out-of-state firearms purchases were denied 

based on Pennsylvania NICS Index entries. The offenses 

that were the basis for the denials included: robbery 

by assault and force, multiple drug delivery convictions, 

burglary, and several thefts by taking. 
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Conclusion

As noted above, there are several challenges in making 

illegal drug use records available for NICS checks. 

•		 The lack of centralized RMSs for law enforcement 

agencies makes it difficult to report drug arrests and 

lab reports that may not be obtained for weeks or 

months after an arrest. 

•		 Problem-solving courts often misunderstand which 

records are reportable to the NICS Index or may be 

reluctant to report illegal drug use as a violation to a 

person’s terms of supervision. 

•		 Criminal justice agencies often misunderstand the 

provisions of the HIPAA Privacy Rule and 42 C.F.R. Part 

2, thus making them afraid to report illegal drug use 

for fear of unlawfully disclosing PHI. 

•		 Community supervision agencies often lack a 

centralized database to allow for streamlined reporting 

of failed drug tests. 

•		 State officials often do not understand that state laws 

legalizing medical marijuana and/or recreational 

marijuana do not supersede federal statutes for 

reporting illegal drug use as defined by the federal 

government. 

However, because of the increased awareness of the need 

to report drug use records to NCIC and the NICS Index, 

some progress has been made. The promising practices 

identified in this analysis can help serve as a roadmap for 

states seeking to continue improving their submission of 

NICS disqualifying records. While the strategies described 

in this bulletin are focused on illegal drug use submissions, 

they could be used to increase the availability of other 

disqualifiers, as well. Ongoing training is critical to make 

sure all stakeholders not only remain aware of the need for 

timely and accurate information, but also know how records 

should be submitted. Additionally, automation is critical to 

ensuring records availability and efforts like D.C. PSA’s–

which promote the electronic exchange of information–

provide long-term benefits for the purpose of improving 

firearms background checks and beyond.