Report to the Ranking Member,

Committee on the Judiciary,

House of Representatives

United States General Accounting Office

GAO

July 2002 GUN CONTROL

Opportunities to Close

Loopholes in the

National Instant

Criminal Background

Check System

GAO-02-720
Page i GAO-02-720 Closing Loopholes in NICS

Letter 1

Results in Brief 2

Background 4

Restoration of Gun Ownership Rights 7

Handgun Concealed Carry Permits 12

Domestic Violence Misdemeanor Convictions 17

Our Previous Observations on Delayed NICS Transactions 23

Conclusions 25

Recommendation for Executive Action 27

Matter for Congressional Consideration 28

Agency Comments and Our Evaluation 28

Appendix I Objectives, Scope, and Methodology 31

Objectives 31

Scope and Methodology 31

Appendix II Eligibility to Possess Firearms under Federal or

State Law 40

Firearms Eligibility Restricted under Federal and State Law 40

Criminal History a Key Element in Determining Eligibility 42

Appendix III Restoration of Gun Ownership Rights 45

Federal Law Recognizes State Methods of Restoring Gun

Ownership Rights 45

National Overview on State Methods to Restore Gun Ownership

Rights 47

Information on Restoration of Gun Ownership Rights in Selected

States 50

Appendix IV Handgun Concealed Carry Permits 57

National Overview of Concealed Carry Permit Programs 57

Screening, Monitoring, and Revocation Procedures for Concealed

Carry Permits among Selected States 60

Appendix V Domestic Violence Misdemeanor Convictions 67

Complex Federal Definition of Domestic Violence 67

National Overview of Efforts to Identify Domestic Violence

Offenders 69

Contents
Page ii GAO-02-720 Closing Loopholes in NICS

Differences in Domestic Violence Laws and Procedures in Selected

States 71

Appendix VI Comments from the Department of Justice 75

Appendix VII Comments from the Bureau of Alcohol, Tobacco and

Firearms 80

Appendix VIII GAO Contacts and Staff Acknowledgments 83

GAO Contacts 83

Acknowledgments 83

Tables

Table 1: Crimes Committed by Persons after Their Gun Ownership

Rights Were Restored in Selected States 11

Table 2: Reasons for Concealed Carry Permit Revocations in

Selected States 14

Table 3: Firearm-Retrieval Actions Referred to ATF Compared with

Total FBI NICS Denials – by Prohibited Category 19

Table 4: States Selected for Study of Firearms-Related Laws and

Procedures 32

Table 5: Reasons Why NICS Denied Firearms Purchases (Nov. 30,

1998 through Oct. 7, 2001) 43

Table 6: Number of Criminal History Records in the United States

(as of Dec. 31, 1999) 44

Table 7: Summary Information on Laws and Procedures Regarding

Restoration of Gun Ownership Rights in Selected States 51

Table 8: Status of States with Regard to Concealed Carry of

Firearms (as of June 2002) 58

Table 9: Methods Used by Selected States to Screen Persons

Applying for Concealed Carry Permits 61

Table 10: Methods Used by Selected States to Monitor the

Eligibility of Concealed Carry Permit Holders 63

Table 11: Criteria Used by Selected States to Revoke Concealed

Carry Permits 65

Table 12: Selected State Laws and Procedures for Identifying

Domestic Violence Offenders in Criminal Records 72
Page iii GAO-02-720 Closing Loopholes in NICS

Abbreviations

ATF Bureau of Alcohol, Tobacco and Firearms

BJS Bureau of Justice Statistics

FBI Federal Bureau of Investigation

NCHIP National Criminal History Improvement Program

NICS National Instant Criminal Background Check System
Page 1 GAO-02-720 Closing Loopholes in NICS

July 12, 2002

The Honorable John Conyers, Jr.

Ranking Member

Committee on the Judiciary

House of Representatives

Dear Mr. Conyers:

This report responds to your request for information on states’ firearmsrelated laws and procedures involving restoration of gun ownership rights,

permits for concealed carry of firearms, and convictions for domestic

violence. The National Instant Criminal Background Check System

(NICS)—used by the Federal Bureau of Investigation (FBI) and states to

perform presale firearms background checks—relies largely on searching

state criminal history records to prevent the sale of firearms to prohibited

persons.1

 The states’ firearms-related laws and procedures—such as those

mentioned above—may affect how such records are used by NICS in

preventing the sale of firearms to persons who are ineligible under

applicable federal and state law.

As agreed with your office, this report presents information on the

following topics:

• Restoration of gun ownership rights, including any differences

among the states in how such rights may be restored to persons with

criminal convictions and the extent to which persons who had their

gun ownership rights restored subsequently committed new crimes.

• Handgun concealed carry permits, including the extent to which

concealed carry permits exempt permit holders from a NICS

background check when purchasing firearms, any differences among

 1

Federal law prohibits persons from receiving or possessing a firearm if they (1) have been

convicted of, or are under indictment for, a felony; (2) are fugitives from justice; (3) are

unlawful drug users or are addicted to a controlled substance; (4) have been judged

mentally incompetent or have been involuntarily committed to a mental institution; (5) are

aliens illegally or unlawfully in the United States, or certain other aliens admitted under a

nonimmigrant visa; (6) have been dishonorably discharged from the military; (7) have

renounced their U.S. citizenship; (8) are under a domestic violence restraining order; or (9)

have been convicted of a domestic violence misdemeanor. See 18 U.S.C. § 922(g) and

922(n).

United States General Accounting Office

Washington, DC 20548
Page 2 GAO-02-720 Closing Loopholes in NICS

the states in how they issue permits and monitor permit holders, and

what actions the states take to revoke permits if the permit holders

subsequently commit new crimes.

• Domestic violence misdemeanor convictions, including any

differences among the states in how they ensure that domestic violence

convictions in state criminal history repositories are accessible to

NICS, and the extent to which persons convicted of domestic violence

purchased firearms without being identified by NICS.

To address these issues, we obtained overview information from federal

agencies with firearms-related research experience and/or law

enforcement responsibilities—the Bureau of Justice Statistics (BJS); the

Bureau of Alcohol, Tobacco and Firearms (ATF); and the FBI. For more

detailed or specific analyses, as agreed with your office, we focused our

work on six states—California, Florida, Massachusetts, Michigan, Texas,

and Utah—which we judgmentally selected to illustrate a variety of

applicable state laws and procedures. In visiting these states, we discussed

applicable laws and procedures with responsible state and local officials

and reviewed relevant statistics and other firearms-related information.

We performed our work between June 2001 and May 2002, in accordance

with generally accepted government auditing standards. Appendix I

presents more information about our objectives, scope, and methodology.

Each of the six states we visited offered at least one mechanism by which

individuals who were ineligible to possess firearms because of a criminal

conviction could have those rights restored. Of the four types of

restoration mechanisms recognized under federal law—executive pardon,

record expungement, conviction set-aside, and restoration of civil rights—

pardons were universally available in all of the six states, while

expungements were available only in Utah. The six states’ criteria for

restoration typically require a certain waiting period before application for

relief, and persons convicted of some prior offenses are not eligible for

restoration. Typically, individuals must petition the state or a county

agency for relief (as in Florida and Michigan, for example), but some

states—such as California and Massachusetts—automatically restore

certain firearms rights lost after completion of sentence. On the basis of a

review of limited data that were available from the selected states, we

found that few persons who had their gun ownership rights restored were

convicted of subsequent crimes.

In 26 states, ATF has determined that a concealed carry permit may

exempt the permit holder from a NICS background check when

Results in Brief
Page 3 GAO-02-720 Closing Loopholes in NICS

purchasing a firearm. As such, it is important that permit applicants be

carefully screened and permit holders monitored to ensure they are

eligible to possess firearms. The six states we visited screened permit

applicants using federal and state criminal databases, monitored permit

holders to ensure continued eligibility using automated and manual

processes, and revoked permits when permit holders became ineligible to

carry a concealed firearm. Based on a review of limited data that were

available from the six states, the number of permits revoked ranged from

0.02 percent of permits issued (in Michigan) to 2.3 percent of permits

issued (in Massachusetts). However, only two states—California and

Massachusetts—took steps to recover revoked permits, and only one

state—Massachusetts—had penalties available against persons who failed

to voluntarily surrender their permits. In Florida and Texas—two states

with NICS-exempt permit holders—state data show that over 3,200

permits were revoked after permit holders committed criminal offenses or

became otherwise ineligible to carry a concealed firearm. However, state

officials acknowledged they did not recover all revoked permits and,

moreover, had no authority to enforce recovery of revoked permits. In

these states, permit holders who became ineligible to possess firearms

could have used their revoked permits to purchase firearms without a

NICS background check. In contrast to Florida and Texas, Utah—a third

state with NICS-exempt permit holders—requires gun dealers to verify the

validity of all such permits before approving an NICS-exempt gun

purchase, thereby preventing ineligible persons from using a revoked

concealed carry permit to purchase firearms.

The six states we visited used various approaches to help make domestic

violence misdemeanor convictions easier to identify in criminal history

records—for example, by enacting domestic violence criminal statutes and

flagging domestic violence offenses in their criminal history records.

Despite these efforts, in the first 3 years of NICS operations, over 2,800

domestic violence offenders were able to purchase firearms without being

identified by NICS. Moreover, almost 26 percent of NICS firearm-retrieval

actions initiated by the FBI involved domestic violence offenders, even

though overall this prohibiting category made up only about 14 percent of

all NICS denials.2

 Various factors make it difficult to identify domestic

violence misdemeanor offenses in a timely manner. For example, while

 2

Firearm-retrieval actions occur when a NICS background check is not completed within 3

business days, the firearms transfer legally proceeds, but the purchaser is later found to be

ineligible to purchase firearms. In these cases, steps must then be taken to retrieve the

firearm. Firearm-retrieval actions are also referred to as “delayed denials.”
Page 4 GAO-02-720 Closing Loopholes in NICS

states continue to work to automate and improve the overall quality and

accessibility of criminal history records, this process has been ongoing

since the early 1990s and is still incomplete. Also, domestic violence

offenses may not be clearly identified in criminal databases, and the

complex federal definition of domestic violence misdemeanor requires

obtaining information that may not be immediately available in the state

criminal history record. Moreover, allowing firearms sales to proceed after

3 business days when the outcome of the NICS check is unresolved

contributes to the difficulty in preventing domestic violence offenders

from purchasing firearms. If federal law allowed more than 3 days—up to

30 days, for example—to research these types of delayed NICS

background checks, the number of firearm-retrieval actions during the

first 3 years of NICS operations could have been reduced by over 50

percent. And, allowing more time to research these delayed transactions

would have affected a relatively small percentage of all NICS background

checks.

This report includes a recommendation (with respect to concealed carry

permits) and a matter for congressional consideration (with respect to

domestic violence convictions) to help minimize the number of ineligible

persons who purchase firearms under NICS. In commenting on a draft of

this report, Justice did not specifically address the recommendation or the

matter for congressional consideration. Rather, Justice provided

information about its efforts to help states improve the completeness and

accuracy of criminal history records, including those relating to domestic

violence. In commenting on behalf of Treasury, ATF generally agreed with

our recommendation on concealed carry permits, but noted it would first

need to examine the extent to which there is a problem and then consider

options for how best to address the issue.

Effective November 30, 1998, under the Brady Handgun Violence

Prevention Act (Brady Act),3

 licensed gun dealers are required to obtain

background checks on purchasers before transferring (i.e., selling) a

firearm. These background checks generally are to be conducted using

NICS, a computerized system which is managed by the FBI. Under NICS,

firearms are not to be transferred until a background check determines

that the transfer will not violate applicable federal and state laws.

 3

Public Law 103-159 (1993).

Background
Page 5 GAO-02-720 Closing Loopholes in NICS

However, if the background check is not completed within 3 business

days, the transfer is allowed to proceed by default.

A NICS background check provides an automated search of criminal and

noncriminal records—including records in both state and national

databases—to determine a person’s eligibility to purchase a firearm.

Specifically, a NICS check queries the following three information sources:

(1) the National Crime Information Center, which provides access to

fugitive arrest warrants and protective orders and information about

deported felons; (2) the Interstate Identification Index, an index-pointer

system that provides access to state criminal history records and FBI

criminal history databases;4

 and (3) the NICS Index, which maintains

records about other persons’ ineligible to possess firearms, including

mental defectives, illegal and unlawful aliens, and persons dishonorably

discharged from the military. In practice, however, most NICS decisions

about eligibility to purchase firearms are based on state criminal history

records. During the first 3 years of NICS operations, over 90 percent of all

firearms purchase denials were due to a disqualifying criminal history—

primarily felony convictions (64 percent) and domestic violence

misdemeanor convictions (14 percent). Because the vast majority—about

95 percent—of all criminal history records are state records, the capability

of NICS to effectively screen firearms purchasers depends largely on the

ability to access and interpret these state records.

As part of interpreting state criminal history records, NICS background

check examiners consider post-conviction actions that may affect gun

ownership rights.5

 For example, persons prohibited from possessing

firearms due to state criminal convictions may subsequently apply to the

states for relief from these disabilities, and state actions to provide such

relief may be recognized under federal law as restoring gun ownership

rights.6

 This avenue of relief arises out of the meaning of the term

“conviction,” which is found within the federal definitions of felony and

 4

The Interstate Identification Index currently contains about 90 percent of the records

checked by NICS.

5

Federal firearms law prohibits certain persons from possessing or receiving firearms. For

the purposes of this report, we use the terms “gun ownership rights” and “firearms rights”

interchangeably to refer to the possession or receipt of a firearm.

6

In order to relieve federal firearms disabilities, a state restoration action must restore a

person’s civil rights—that is, the right to vote, the right to hold public office, and the right

to serve on a jury.
Page 6 GAO-02-720 Closing Loopholes in NICS

domestic violence misdemeanor.7 Federal firearms law generally provides

that a conviction will not be considered for purposes of determining

firearms eligibility if the conviction “has been expunged, or set aside or [is

an offense] for which a person has been pardoned or has had civil rights

restored ... unless such pardon, expungement, or restoration of civil rights

expressly provides that the person may not ... possess, or receive

firearms.” Prior to October 1992, relief from firearms disabilities imposed

by federal laws could be granted, based on a petition to the Treasury

Department, under provisions enacted at 18 U.S.C. § 925(c). However,

beginning with the fiscal year 1993 Treasury appropriations act,8

 Congress

has prohibited Treasury from expending any appropriated funds to act

upon such applications for relief.

The Brady Act, in general, provides that any transaction in which a person

presents to a licensed gun dealer a valid state permit that allows the

purchaser to possess or acquire a firearm is exempt from a NICS check

when purchasing firearms. Specifically, a firearms purchase is exempt

from NICS if the purchaser presents a state permit that (1) allows the

permit holder to possess or acquire a firearm and (2) was issued not more

than 5 years earlier by the state in which the transfer is to take place. NICS

regulations specify further that the purchaser must present a valid permit

that was issued only after verifying that the permit holder was not

ineligible to possess firearms under federal, state, and local law. In

addition, after November 30, 1998, permits would qualify as exempt only if

the information available to the state authority that issued the permit

included NICS.9

 In developing the NICS regulations, ATF concluded that a

“permit to possess” a firearm would include a permit to carry concealed

weapons. Thus, if a concealed carry permit meets the criteria described

above, the permit holder would be exempt from a NICS background check

when purchasing firearms, unless state law otherwise required such a

check.

As noted previously, NICS denials are based largely on criminal history

records—not only felonies but certain misdemeanors as well. Most

notably, in the so-called Lautenberg amendment, Congress banned the

 7

18 U.S.C. § 921(a)(20) applies the meaning of conviction to crimes punishable for a term

exceeding 1 year (i.e., felonies). Similarly, subsection (a)(33) applies this meaning to

misdemeanor crimes of domestic violence.

8

Public Law 102-393 (1992).

9

27 C.F.R. 178.102(d).
Page 7 GAO-02-720 Closing Loopholes in NICS

possession of firearms by individuals convicted of a misdemeanor crime of

domestic violence.10 As defined in the law, a domestic violence

misdemeanor involves the use or attempted use of physical force or the

threatened use of a deadly weapon by any of the following: a current or

former spouse, parent, or guardian of the victim; a person with whom the

victim shares a child in common; a person who is cohabiting with or has

cohabited with the victim as a spouse, parent, or guardian; or a person

similarly situated to a spouse, parent, or guardian of the victim.

Implementing regulations provide that such definition includes any

federal, state, or local misdemeanor that meets the criteria, irrespective of

whether it is defined or labeled as “domestic violence.” Federal law further

provides that a person generally is not considered convicted of a domestic

violence misdemeanor under the following circumstances: (1) if the

person was not represented at trial by counsel (unless he or she waived

the right to counsel); (2) if the person was entitled to a jury trial, but the

case was not tried by jury (unless he or she waived the right to a jury trial);

or (3) if the conviction was expunged or set-aside, or the person was

pardoned or had civil rights restored; and the person is not otherwise

prohibited from possessing firearms.

Appendix II presents more information about the categories of persons

ineligible to purchase firearms and the extent to which criminal history

records are used to determine an individual’s eligibility to purchase

firearms. Also, more details on NICS implementation and operation may

be found in our February and April 2000 reports.11

As mentioned previously, while federal restoration of firearms rights is no

longer readily available, persons who are ineligible to possess firearms

because of state criminal convictions may be able to have their gun

ownership rights restored by the state.12 Following a state restoration

 10Section 658 of Public Law 104-208 (1996), commonly known as the Lautenberg

amendment.

11U.S. General Accounting Office, Gun Control: Implementation of the National Instant

Criminal Background Check System, GAO/GGD/AIMD-00-64 (Washington, D.C.: Feb. 29,

2000) and Gun Control: Options for Improving the National Instant Criminal

Background Check System, GAO/GGD-00-56 (Washington, D.C.: Apr. 12, 2000).

12However, federal criminal offenders can have their gun ownership rights restored only by

a federal—not a state—procedure (Beecham v. United States, 511 U.S. 368 (1994)).

Restoration of Gun

Ownership Rights
Page 8 GAO-02-720 Closing Loopholes in NICS

action, such persons would generally be recognized by the states and the

federal government as once again being eligible to possess firearms.

Each of the four restoration methods recognized in federal firearms law

can have a different effect on the underlying disqualifying record and the

extent to which rights are restored. For example:

• Pardon – A pardon is, in general, an executive action that typically

mitigates the punishment the law demands for an offense and restores

any or all of the rights and privileges forfeited on account of the

offense. Generally, the original criminal record is to be retained, with

the pardon being noted on the record.

• Expungement – An expungement is a procedure in which the record

of a criminal offense or conviction is typically destroyed or sealed. For

example, arrest records may be expunged where the arrested person is

acquitted at trial or the arrest is found to be unlawful; or expungement

may be allowed after the passage of time. In some cases, expunged

records may be retained and used by the state for certain limited

purposes.

• Set-aside – A set-aside is an action that annuls or revokes a previously

issued court judgment or order—such as a criminal conviction. To set

aside a judgment is to make it void or of no effect and to deprive it of

all force and operation as to future transactions. Set-asides are

generally noted in the criminal record, which is retained.

• Restoration of civil rights – States may have procedures to restore

any civil rights or other privileges that were lost upon a criminal

conviction. These rights may be restored automatically upon

completion of sentence or the passage of time; or restoration of rights

may require an administrative or judicial process. Generally,

restorations of civil rights are noted in the criminal record, which is

retained.

Each of the six states we visited provided for one or more of the four

methods described above for restoring gun ownership rights lost as a

result of a state criminal conviction. Differences among the states

primarily involved the number of such methods available, the conditions

under which a person would be eligible for relief, and the process of

applying for and receiving relief. Pardons were universally available in all

six of the states we visited, while expungements were readily available in

only one state—Utah. The states’ criteria for restoration typically required

a certain waiting period before being eligible to apply for relief. In Florida,

for example, applicants had to wait 10 years following completion of

Differences among

Selected States’

Restoration Laws and

Procedures
Page 9 GAO-02-720 Closing Loopholes in NICS

sentence to apply for a full pardon or 8 years to apply for a restoration of

firearms authority. Also, persons convicted of some prior offenses—

felonies involving a firearm, for example, in California—were not eligible

for any restoration at all. In some states—such as Florida and Michigan—

certain individuals are required to petition the state or a county agency for

relief; other states—such as California and Massachusetts—have laws that

automatically restore certain lost firearms rights after completion of

sentence.

Appendix III presents more information about the states’ laws and

procedures dealing with restoration of gun ownership rights.

To determine if persons who had their gun ownership rights restored

subsequently committed crimes, we obtained and analyzed available data

on restoration actions in the six selected states. Our analysis was largely

dependent on the availability of state data for each method of restoration

and, as such, was generally based on limited data or data on small

numbers of cases. On the basis of our limited review, we found that few

persons whose gun ownership rights had been restored by the states were

later convicted of additional crimes. Summary information for the six

states is as follows. (See table 1.)

• In California, 71 persons received pardons between 1990 and 2000 that

restored gun ownership rights. Of these, none had subsequently been

convicted of a crime.

• In Florida, 79 persons received pardons (78 full pardons, 1 conditional

pardon) between 1999 and 2001 that restored gun ownership rights. Of

these, 1 person was subsequently convicted of a felony. In addition, 1

other person was arrested, but the record did not reflect whether the

charge was a felony or a misdemeanor and no disposition was found.

Another 51 persons received restorations of firearms authority between

1999 and 2001. Of these, none was subsequently convicted of a crime.

• In Massachusetts, 49 persons received pardons between 1990 and 2000

that restored gun ownership rights. Of these, none was subsequently

convicted of a crime.

• In Michigan, 26 persons received pardons between 1969 and 1995 that

restored gun ownership rights. Our review of 9 of these individuals

found that none had subsequently been convicted of a crime. Another

2,006 persons had convictions set aside during 2000 and 2001. Our

Crimes Committed by

Persons Whose Gun

Ownership Rights Were

Restored
Page 10 GAO-02-720 Closing Loopholes in NICS

review of 200 of these individuals found that 1 person had subsequently

been convicted of misdemeanor domestic violence; 1 other person was

arrested and charged with misdemeanor domestic violence, but no

disposition was found. Also, 378 persons received restorations of gun

ownership rights by county gun licensing boards between 1992 and

2001. Our review of 38 of these individuals found that 1 person was

subsequently convicted of a crime—in this case, a misdemeanor.

• In Texas, 54 persons received pardons between 1992 and 2001 that

restored gun ownership rights. Our review of 35 of these individuals

found that none had subsequently been convicted of a crime. However,

3 of the individuals had subsequently been arrested—2 of the arrests

involved misdemeanor charges and 1 involved felony charges. No

dispositions were found for any of these cases.

• In Utah, 7 persons received pardons between 1990 and 2001 that

restored gun ownership rights. Our review of 6 of these individuals

found that none had subsequently been convicted of a crime.
Page 11 GAO-02-720 Closing Loopholes in NICS

Table 1: Crimes Committed by Persons after Their Gun Ownership Rights Were Restored in Selected States

Restoration of gun ownership rights

States and type of

restoration action Time period

Total number

of actions

Number reviewed

by GAO

Number of

subsequent

convictions

California

• Pardon 1/1/90 – 12/31/00 71 71 0

Florida

• Pardon 7/1/99 – 6/30/01 79 79 1

• Restoration 7/1/99 – 6/30/01 51 51 0

Massachusetts

• Pardon 1/1/90 – 12/31/00 49 49 0

Michigan

• Pardon 3/7/69 – 7/12/95 26 9 0

• Set-aside 9/1/00 – 11/30/01 2,006 200 1

• Restoration 10/13/92 – 6/30/01 378 38 1

Texas

• Pardon 1/1/92 – 12/31/01 54 35 0

Utah

• Pardon 1/1/90 – 12/31/01 7 6 0

• Expungement 1/1/00 – 3/31/01 1,623 a a

a

Action provided for by state, but data not available for review.

Source: GAO analysis of state data and discussions with state officials. Appendix I provides more

details about the state data reviewed and our analysis.

As mentioned previously, our analysis was largely dependent on the

availability of state data for each method of restoration and, as such, was

generally based on limited data or data on small numbers of cases. In some

cases, statewide data were not available, and in other cases only certain

time periods were covered. Where selected cases were analyzed—in

Michigan, Texas, and Utah—the cases we reviewed were not randomly

generated. As a result, this analysis is intended solely to illustrate what we

found from the data we reviewed in each of the six states, and the results

cannot be generalized beyond the timeframes and locations from which

the data were collected.
Page 12 GAO-02-720 Closing Loopholes in NICS

ATF has periodically reviewed each state’s concealed carry permit

program to determine whether it meets the criteria laid out in the Brady

Act and NICS regulations for exempting permit holders from NICS

background checks.13 As indicated below, as of January 2002, ATF

determined that 26 states issued concealed carry permits that qualify to

exempt permit holders from NICS background checks when purchasing

firearms:

• In 16 states, all concealed carry permit holders are exempt from NICS

background checks. Texas and Utah fall into this category.

• In 8 states, only certain permits issued before the implementation of

NICS exempt permit holders from NICS background checks. In these

states, permits issued after NICS was implemented (Nov. 30, 1998) do

not qualify as exempt. Permits issued prior to NICS are “grandfathered”

as exempt because, under interim provisions of the Brady Act, ATF had

recognized these permits as a valid alternative to the interim Brady

background check. Florida and Massachusetts fall into this category.

• In 2 states, only grandfathered permits were initially considered

exempt. However, these states later made changes to their permit

programs, bringing them into compliance with NICS regulations, and

permits issued after the date of these program changes are now exempt

from NICS.

In the other 24 states, no concealed carry permits are exempt from NICS

background checks. In some cases, ATF has determined the state program

does not qualify as exempt under NICS regulations (Michigan); in other

cases, the permits do not qualify as exempt under state law (California).

The six states we visited had several similarities in their background

screening and processing of concealed carry permit applicants. In each

state, for example, permit applicants were subject to a screening process

involving a review of criminal justice and other data in federal and state

databases. This screening process included both name-based and

fingerprint-based checks performed by the states and the FBI. In addition

to federal and state sources of data, Texas and Michigan routinely

reviewed local records as part of the screening process. Some of the states

were limited in the amount of time allowed to complete the background

check and issue or deny the concealed carry permit. In Florida, a

 13In addition to concealed permits, ATF reviewed state permits governing the purchase or

possession of firearms to determine if any of these permits would qualify as exempt from

NICS.

Handgun Concealed

Carry Permits

Differences among

Selected States’

Procedures for Issuing and

Monitoring Concealed

Carry Permits
Page 13 GAO-02-720 Closing Loopholes in NICS

concealed carry permit must be issued within 90 days unless the applicant

is determined to be ineligible or has a potentially disqualifying arrest

without disposition information.

In addition to screening concealed carry permit applicants, the states

monitored active permit holders to determine if and when any of them

became ineligible to have a permit. For example, five of the six states (all

except Massachusetts) had formal mechanisms in place for detecting

whether permits holders had committed a disqualifying criminal offense.

These methods included electronic matching of permit holders’ names

against state criminal records databases (Utah and Florida), as well as

manual notifications to the state’s permit authority by the courts when a

concealed carry permit holder is convicted of a crime (Michigan). Once a

permit holder is determined to be ineligible, all of the states have

procedures in place for revoking the permit. But in only two states—

California and Massachusetts—do authorities actively seek out permit

holders and seize revoked permits if the individuals do not surrender their

permits to the issuing agency.

Appendix IV presents more information about the states’ laws and

procedures involving issuing, monitoring, and revoking concealed carry

permits.

The six states we visited reported that some concealed carry permit

holders subsequently committed crimes that resulted in permit revocation,

as shown in table 2. When compared to the total number of permits issued,

the revocation rate of permit holders ranged from 0.02 percent in Michigan

to 2.3 percent in Massachusetts—with the two “may-issue” states

(California and Massachusetts) revoking a higher percentage of permits

than the four “shall-issue” states (Florida, Michigan, Texas, and Utah).14 In

the states where data on offense type were available (Michigan, Texas, and

Utah), the vast majority of offenses that led to revocation were

misdemeanors. Some states (Florida, Texas, and Utah) also reported a

significant number of revocations due other disqualifying factors—such as

mental disability (in Florida and Utah) and delinquent taxes (in Texas).

Only Florida and Utah tracked the number of revocations that involved

 14In shall-issue states, a permit must be issued if no statutory reason for denial is revealed

during a background check. In may-issue states, a permit may be issued to eligible

individuals after considering additional subjective prohibitors, such as the applicant’s

history and personal character.

Number of Concealed

Carry Permits Revoked

and Reasons for

Revocation
Page 14 GAO-02-720 Closing Loopholes in NICS

firearms—specifically, firearms-related offenses accounted for about 9

percent (145 out of 1,593) of Florida’s revocations and about 7 percent (39

out of 584) of Utah’s revocations.

Table 2: Reasons for Concealed Carry Permit Revocations in Selected States

 Reasons for permit revocationa

States and

type of permit

Time period

coveredb

Permits

issued

Felony

offense

Misdemeanor

offense

Other

disqualifier

Percent of

issued permits

revoked

California

(may-issue)

1/1/00 –

12/31/00 1,890 42 2.2%

Florida

(shall-issue)

10/1/87 –

12/31/01 785,563 1,430c

163 0.2

Massachusetts

(may-issue)

1/1/99 –

12/31/01 177,572 4,046 2.3

Michigan

(shall-issue)

7/1/01 –

3/11/02 34,712 9 0.02

Texas

(shall-issue)

1/6/96 –

10/25/01 270,971 187 926 546 0.6

Utah

(shall-issue)

1/1/94 –

12/31/01 46,148 70 431 83 1.3

a State officials in California, Florida, Massachusetts, and Michigan could not separate revocation

offenses into felonies and misdemeanors. They are categorized here as misdemeanors for purposes

of general analysis.

b Except for slight differences in Massachusetts and Texas, the time periods in this column correspond

directly with the data under “permits issued” and “reasons for permit revocation” data. In

Massachusetts, the data for permits issued is from the time period 10/10/98 to 2/8/02. In Texas, the

data for permits issued is from the time period 1/1/96 to 11/30/01.

c

Florida also reported an additional 461 revocations that resulted from crimes committed prior to

permit issuance, which the state had not discovered during the permit application background check.

Source: GAO summary of data provided by state officials.

More significant than the number of revocations, some states had no

assurance of recovering permits from permit holders after revocation. As a

result, revoked permits could be used by ineligible persons to purchase

firearms without a NICS background check. As mentioned previously,

among the six states, only California and Massachusetts actively seek out

permit holders to recover revoked permits that have not been voluntarily

surrendered. In addition, only Massachusetts has criminal penalties

available for use against permit holders who do not surrender revoked

permit. Regarding the other states, we noted the following issues regarding

revoked permits:

• In Florida—a state where grandfathered permits exempt permit

holders from NICS background checks when purchasing firearms—

Revoked Permits Could Be

Used by Ineligible Persons

to Purchase Firearms
Page 15 GAO-02-720 Closing Loopholes in NICS

state officials acknowledged they did not recover all revoked permits

and the state had no civil or criminal authority to force the surrender of

revoked permits. Between October 1987 and December 2001, Florida

revoked 1,593 permits, the vast majority because of crimes committed

by permit holders after the permits were issued. Another 461 permits

were revoked because of crimes committed before the permits were

issued. Because permits issued prior to the implementation of NICS

exempted permit holders from NICS background checks, permits that

were revoked and not recovered could have been used by ineligible

permit holders to purchase firearms without a NICS check. To

illustrate the extent to which revoked permits are not recovered by the

state, Florida officials provided data on permits revoked in fiscal year

2001 as a result of crimes committed before the permits were issued.

Of the 18 permits that were revoked for that reason, state officials told

us that 7 of the 18 permits were not recovered.

• In Texas—a state where all concealed carry permit holders are exempt

from a NICS check when purchasing firearms—state officials also

acknowledged they do not recover all revoked permits and have no

civil or criminal authority to force the surrender of revoked permits.

State officials estimated that about 2 out of every 10 revoked permits

are not voluntarily surrendered back to the state. Thus, based on the

total number of revocations reported (1,659) between January 1996 and

October 2001, this represents an estimated 332 revoked permits that

were not recovered upon revocation. These ineligible permit holders

could have used their revoked permits to purchase firearms without

having a NICS background check.

• Two other states—California and Utah—have laws or procedures in

place that prevent persons from using revoked permits to purchase

firearms without a NICS background check. In California, for example,

state law requires concealed carry permit holders to have a separate

NICS background check when purchasing a firearm, thus preventing

ineligible permit holders from purchasing firearms regardless of the

status of their permit. Utah—another NICS-exempt state for permit

holders—requires gun dealers to verify the validity of a concealed carry

permit by contacting the state issuing authority before approving a

NICS-exempt gun purchase. Rather than requiring another background

check at the time of purchase, this verification simply requires gun

dealers to visually inspect the permit, and then call the state’s

Department of Public Safety to verify that the permit is still valid—that

is, that it has not been suspended or revoked. According to Utah

officials, this process helps the state monitor the legal status of permit
Page 16 GAO-02-720 Closing Loopholes in NICS

holders, and it prevents persons from using revoked permits to

purchase firearms without a NICS background check.

According to ATF officials, after the Brady Act was passed in 1993, the

states became responsible for conducting firearms purchase background

checks. Because some states already required permits and background

checks in order to purchase firearms, it seemed redundant to require

another identical state background check just to comply with Brady. As a

result, the law exempted permit holders from having a separate

background check when purchasing firearms. When NICS became

operational in 1998, the FBI and the states began sharing responsibility for

firearms background checks, but the permit exemption continued based

on criteria laid out in the Brady Act and NICS regulations for exempting

permit holders from NICS background checks. Even so, ATF officials

noted that some states require their concealed carry permit holders to

undergo a separate background check at the time they make a firearms

purchase. The officials went on to say that permit holders may sometimes

commit crimes that disqualify them from possessing firearms, although the

state has not yet taken action to revoke the permits. In such instances, a

NICS background check at the time of purchase serves to identify permit

holders who may be disqualified from purchasing a firearm and prevent

those persons from obtaining firearms simply by presenting their permits.

Regarding Utah’s permit-verification process that requires gun dealers to

verify the current validity of concealed carry permits, ATF officials told us

it is not clear whether ATF could require all states to have a similar

process. Generally, ATF can set regulations for states to meet as

prerequisites to exempting their permit holders from NICS background

checks, provided these regulations are consistent with congressional

intent. Among other things, ATF regulations already specify that exempt

permits must be valid, issued no more than 5 years earlier, and must be

issued only after verifying that the permit holder was not ineligible to

possess firearms under federal, state, and local law. Regarding an

additional regulation requiring point-of-purchase verification of the

validity of exempt permits, ATF officials noted that this could raise

concerns as an unfunded mandate, particularly in those states that do not

participate in NICS and have no existing infrastructure at state agencies or

licensed gun dealers for performing such verification. Nonetheless, ATF

would consider such a regulation if there was compelling evidence to

suggest that a problem did exist (e.g., data indicating that ineligible

persons used revoked permits to purchase firearms without a NICS

check), and that any new regulation was consistent with congressional

intent under the Brady Act.
Page 17 GAO-02-720 Closing Loopholes in NICS

The six states we visited used various approaches to help ensure that

domestic violence misdemeanor convictions were identified in state

criminal history repositories and were accessible to NICS. These

approaches included establishing a specific domestic violence offense in

the state’s criminal code, defining domestic violence in other state

statutes, enacting domestic violence penalty enhancement statutes, and

flagging domestic violence offenses in the criminal records. For example,

two of the states we visited—California and Michigan—had enacted

specific criminal offenses related to domestic violence, which clearly

differentiates these offenses from other misdemeanor assaults. Four

states—California, Michigan, Texas, and Utah—had amended general

criminal statutes (such as assault or battery) to create a separate penalty

enhancement when the circumstances involved a family member or other

relation. Florida, Michigan, and Utah also “flag” domestic violence

offenses by notating the criminal record to clearly identify the offenses as

domestic violence-related. Only Massachusetts had no mechanism for

specifically identifying domestic violence offenses in the state’s criminal

history records.

Appendix V presents more information about the states’ laws and

procedures to help ensure that domestic violence convictions are

accessible to NICS.

From November 1998 through September 2001, ATF data indicate that the

agency received 10,945 referrals from the FBI requesting retrieval of

firearms that had been sold to ineligible persons.15 These firearm-retrieval

actions were the result of NICS background checks that could not be

completed by the FBI within the 3 business days allowed under federal

law. When this occurs, the sale is allowed to proceed—that is, the gun

dealer may legally transfer the firearm without a response from the FBI as

to the purchaser’s eligibility. The FBI continues to research these

transactions, even after 3 days have passed, to ensure that the purchasers

were not prohibited individuals. Regarding the referrals noted above, after

the firearms were legally transferred the FBI discovered that the

purchasers should have been denied. Once the FBI made these

determinations, ATF was notified so steps could be taken to investigate

 15FBI data show that 11,847 firearm-retrieval actions were referred to ATF during this same

time period. According to an ATF official, the difference represents firearm-retrieval

actions that were later purged from ATF systems in June 2001 because the FBI had

subsequently overturned the underlying denials.

Domestic Violence

Misdemeanor

Convictions

Some Domestic Violence

Offenders Purchased

Firearms under NICS
Page 18 GAO-02-720 Closing Loopholes in NICS

the transactions, retrieve the firearms, and refer any appropriate cases for

prosecution.

As shown in table 3, about 26 percent of the firearm-retrieval actions

referred to ATF during roughly the first 3 years of NICS were in the

prohibited category of domestic violence misdemeanor. By comparison, in

looking at all FBI NICS denials during approximately this same period,16

the category of domestic violence misdemeanor made up only about 14

percent of the total number of NICS denials. As shown by this comparison,

the percentage of NICS firearm-retrieval actions involving domestic

violence misdemeanors was disproportionately large—almost double—

when compared with the percentage of all NICS denials that involved

domestic violence misdemeanors. These transactions create concerns

because they represent domestic violence offenders who were allowed to

purchase firearms and who may pose risks to public safety.

 16The ATF data on firearm-retrieval actions covers roughly the first 3 years of NICS

operations—November 30, 1998, through September 30, 2001. The FBI data on all NICS

denials covers approximately the same time period—from November 30, 1998, through

October 7, 2001.
Page 19 GAO-02-720 Closing Loopholes in NICS

Table 3: Firearm-Retrieval Actions Referred to ATF Compared with Total FBI NICS Denials – by Prohibited Category

Firearm-retrieval actions referred to ATF

(Nov. 30, 1998 – Sept. 30, 2001)

Total FBI NICS denials

(Nov. 30, 1998 – Oct. 7, 2001)

Prohibited category Total Percent of total Total Percent of total

Fugitive warrant

18 U.S.C. § 922(g)(2) 600 5.5% 5,620 2.8%

Mental defective

18 U.S.C. § 922(g)(4) 100 0.9 716 0.4

Domestic violence

restraining order

18 U.S.C. § 922(g)(8) 132 1.2 7,647 3.8

Domestic violence

misdemeanor

18 U.S.C. § 922(g)(9) 2,815 25.7 27,845 13.9

Other prohibited

categoriesa

7,298 66.7 157,892 79.1

Total 10,945b100% 199,720 100%

a

ATF and FBI did not report sufficient detail to allow analysis of the other prohibited categories.

b

During this same time period, FBI data show that 11,847 firearm-retrieval actions were referred to

ATF. According to an ATF official, the difference represents firearm-retrieval actions that were later

purged from ATF systems in June 2001 because the FBI had subsequently overturned the underlying

denials.

Source: GAO analysis of ATF and FBI NICS data.

It should be noted that the actual number of domestic violence offenders

who purchased firearms under NICS may be larger than shown in table 3.

We previously reported that roughly 1.7 percent of NICS background

checks could not be completed within 21 days because the FBI was not

able to obtain sufficient information to verify the purchaser’s eligibility.17

Based on the number of NICS background checks processed by the FBI

through fiscal year 2001, an estimated 204,000 transactions would have

fallen into this unresolved category. Even if only 1.6 percent (the average

NICS denial rate for this time period) of these transactions involved

prohibited persons, this would represent an estimated 3,200 additional

prohibited persons who purchased firearms without being identified by

NICS—over 800 of which would have been domestic violence offenders

(based on the percentage of domestic violence misdemeanor firearmretrieval actions shown in table 3). Furthermore, this number could be

 17GAO/GGD-00-56, p.17. Although gun dealers are allowed to transfer firearms after 3 days

if the NICS check is not completed, FBI examiners continue to research these unresolved

transactions for up to 21 days to determine whether the transactions should have been

approved or denied.
Page 20 GAO-02-720 Closing Loopholes in NICS

much higher, because the FBI has previously reported that delayed

transactions are much more likely to involve prohibited persons than the

average NICS checks.

According to FBI officials, researching domestic violence offenses can

often take more than the 3 days allowed under the Brady Act. In a typical

transaction, the NICS background check identifies an arrest for a

misdemeanor assault but no matching disposition. The NICS examiner

must then go back—in some cases to original police reports—to verify

what happened and who was involved, in order to determine whether the

offense meets the federal criteria for domestic violence misdemeanor.

Furthermore, the information needed to confirm the conviction may not

be in the automated record, and manual research is then required. If the

offense was tried in a so-called court of non-record (e.g., a magistrate or

justice of the peace court), the case may not have been reported to the

state repository. Thus, the FBI may have to contact the local court or the

original arresting agency to document the outcome.

Various other factors contribute to the difficulty in identifying domestic

violence convictions within 3 business days and, thus, preventing the

associated firearm-retrieval actions. These factors include (1) the overall

accessibility and completeness of state criminal history records, (2) the

complex federal definition of domestic violence misdemeanor, and (3) the

difficulty in identifying domestic violence offenses in the criminal history

records.

Regarding the first factor, states are continuing to automate and otherwise

improve the completeness and accessibility of their criminal history

records. However, this process has been ongoing since the early 1990s and

is still far from complete. For example, BJS recently reported on the status

of efforts to improve criminal history records for background check

purposes.18 According to the report:

• By mid-2001, a total of about 64 million records were held in state

criminal history repositories. However, approximately 7 million (about

11 percent) of these were manual records and, thus, not instantly

accessible to NICS.

 18Department of Justice, BJS, Improving Criminal History Records for Background

Checks, NCJ-192928 (Washington, D.C.: Feb. 11, 2002).

Barriers to the Timely

Identification of Domestic

Violence Convictions
Page 21 GAO-02-720 Closing Loopholes in NICS

• Of the remaining 57 million automated records, an estimated 16 million

records (28 percent) were not accessible through the Interstate

Identification Index for background check purposes. That is, these 16

million records were instantly accessible only to the state holding the

respective records.

• Of the 41 million records that were automated and accessible through

the Interstate Identification Index, the most recent BJS data indicate

that perhaps 37 percent may not be fully useful for an instant check

due to a lack of data on arrest dispositions.

To assist BJS in reporting on the completeness of criminal records, the

FBI analyzed a sample of delayed NICS background checks that resulted

from an open arrest with no disposition. Overall, the FBI found that these

delayed transactions typically involved older arrest records—mostly

ranging from over 5 years old to more than 15 years old. Specifically, more

than 75 percent of the open arrests had occurred before 1995 and about 50

percent were found to have occurred before 1984.19

A second factor—the complex federal definition of domestic violence

misdemeanor—further increases the difficulty of using state criminal

history records to determine if an individual is ineligible to purchase

firearms. As mentioned previously, FBI NICS officials acknowledged that

researching domestic violence misdemeanor convictions often involves

manual research using original court records—and possibly arresting

agency reports—to verify what happened and who was involved, in order

to determine whether the offense meets the federal criteria for domestic

violence misdemeanor. These same issues were previously raised in

congressional testimony following passage of the Lautenberg amendment.

According to a representative of the research consortium SEARCH:20

“Even in states where the criminal history record on its face will indicate ... an element of

domestic violence, research ... will still be necessary to determine if the offender was

represented by counsel...or had the opportunity for a jury trial [before firearms eligibility

can be determined]. Because this type of information is not always recorded in original

 19BJS NCJ-192928.

20Testimony of Gerry Wethington, Director, Information Systems, Missouri Highway Patrol,

on behalf of SEARCH, before the Subcommittee on Crime, House Committee on the

Judiciary, March 5, 1997. SEARCH is the National Consortium for Justice Information and

Statistics and was closely involved in all of the criminal history record information and

other information aspects of the Brady Act and NICS.
Page 22 GAO-02-720 Closing Loopholes in NICS

records of entry, it may simply never be possible in many states to obtain this information

or to make this determination.”

The SEARCH representative concluded that there may be a certain, but

unknown, percentage of misdemeanor convictions that resist any attempt

to determine whether they meet the Lautenberg test, because records are

not available or do not indicate whether the offender had access to

counsel or the right to a jury trial.

A third complicating factor is that misdemeanor criminal history records

may not be clearly identified as domestic violence-related, thus requiring

additional—sometimes manual—research. As BJS noted in a February

2000 report on improving criminal history records,21 identifying domestic

violence misdemeanor convictions for purposes of a firearms background

check presents a unique challenge. Domestic violence incidents have

historically been categorized simply as assaults, making it difficult to

segregate them from other criminal history records. Further, where

additional research is necessary, misdemeanor criminal records may be

more difficult to track down than felony records. In its recent report on

the use and management of criminal history records,22 BJS noted that most

state criminal repositories collect information only about the most serious

classes of misdemeanor offenses. And, the general lack of comprehensive

misdemeanor arrest and disposition data has previously been identified as

one of the major deficiencies in state criminal history record systems.

In response to passage of the Lautenberg amendment, the FBI’s automated

system for identifying persons with felony convictions was modified in

May 2001 so that domestic violence offenders (and other ineligible

persons) could be more readily identified. Under the new system, a “flag”

can be set in the automated criminal history to indicate whether an

individual is disqualified from purchasing firearms (signified by the letter

D), cleared to purchase firearms (the letter C), or unknown or pending

status (the letter X).23 When a firearms background check identifies a

 21Department of Justice, BJS, Continuing Criminal History Records Improvement

Evaluation: Final 1994-1998 Report, NCJ-179768 (Washington, D.C.: Feb. 2000).

22Department of Justice, BJS, Use and Management of Criminal History Record

Information: A Comprehensive Report, 2001 Update, NCJ-187670 (Washington, D.C.: Dec.

2001).

23The previous flagging system, implemented in 1992, identified only whether an individual

had felony or misdemeanor convictions.
Page 23 GAO-02-720 Closing Loopholes in NICS

person with a disqualifying flag, the transaction can be immediately denied

with no additional research required. Flags have historically been used to

mark persons that have a felony conviction in their criminal record.

However, for purposes of quickly identifying domestic violence

misdemeanors, some questions remain. For example, while most states

flag some or all felony convictions in their criminal history databases, only

19 states currently participate in the FBI’s new flagging system for

identifying domestic violence and other firearms disqualifiers. Also, as

reported in a 1997 study sponsored by the Bureau of Justice Assistance,24

several state central repository officials expressed concern over the

reliability and consistency of flags set in criminal history records, and one

state official said he would not trust a flag set by another state and would

need to look at the offender’s rap sheet before determining the applicant’s

firearm eligibility. In Michigan, for example, an FBI NICS audit found that

felony flags were not always removed from state criminal history records

when individuals had their firearms rights restored. The audit also

concluded that certain domestic violence offenses were flagged as

disqualifying the individual from purchasing firearms, even though the

offenses did not meet the criteria for disqualification.

In April 2000, we reported on the FBI’s inability to complete certain NICS

background checks within the 3 days allowed under the Brady Act.25 In our

report, we presented to the Congress as a matter for consideration three

options for minimizing the number of these transactions that occur—(1)

improve state criminal history records; (2) encourage states’ participation

in NICS; and (3) allow additional time for certain NICS background

checks. These three options bear further discussion here in the context of

preventing the sale of firearms to domestic violence offenders. However,

given the long-term nature of improving state criminal records, and the

reluctance of states to conduct their own NICS background checks, the

third option—amending the Brady Act to allow more time to complete

NICS background checks before allowing firearms sales to proceed—

would have a more immediate effect on reducing the incidence of firearmretrieval actions—including those involving domestic violence offenders.

 24Department of Justice, Bureau of Justice Assistance, Early Experiences With Criminal

History Records Improvement: Monograph, NCJ-152977 (Washington, D.C.: May 1997).

25GAO/GGD-00-56, p.15-21.

Our Previous

Observations on

Delayed NICS

Transactions
Page 24 GAO-02-720 Closing Loopholes in NICS

• Improve state criminal history records. The first option was to

continue providing grants to states for improving their criminal history

records. During fiscal years 1995 through 2001, the National Criminal

History Improvement Program (NCHIP) provided over $350 million in

grant funds to assist states to improve the quality and accessibility of their

criminal history records, in order to support the implementation of NICS

and enhance the effectiveness of NICS background checks. Among the five

program priorities for fiscal year 2002, three directly relate to NICS: (1)

establishing infrastructure to support the full implementation of NICS,

including full state participation in the Interstate Identification Index; (2)

supporting state court efforts to improve the completeness of criminal

history records; and (3) encouraging states to focus on developing

domestic violence record systems that are complete and accessible to

NICS. NCHIP is a long-term approach that has resulted in many

improvements to state criminal history records. However, our analysis of

NICS firearm-retrieval actions indicates that existing criminal records

systems are still not sufficient to ensure that ineligible persons—

particularly domestic violence offenders—are prevented from purchasing

firearms under NICS. Furthermore, in the most recent BJS summary of

states’ NCHIP grant programs, none of the six states we visited reported

any specific activities or accomplishments on improving the access to or

quality of domestic violence misdemeanor records.

• Encourage state participation in NICS. The second option was to

encourage increased state participation in NICS. The FBI originally

envisioned that most, if not all, states would conduct their own NICS

background checks; however, half the states continue to rely on the FBI to

conduct NICS checks for their states. In terms of access to records and

expertise in interpreting criminal history records, FBI officials believe that

states no longer necessarily have an advantage over FBI examiners. On the

other hand, states typically have access to automated and manual

records—including arrest dispositions—that are not accessible through

NICS. Furthermore, states that conduct their own NICS background

checks may have laws that make domestic violence (and other) firearmretrieval actions less likely to occur. In Utah, for instance, state law

prohibits gun dealers from selling a firearm until an affirmative response is

provided by the state agency conducting the background check. In

California, if background research reveals unresolved questions about a

purchaser’s eligibility, the transaction can be put on hold until these

questions are resolved.

• Allow additional time for certain NICS background checks. The

third option was to amend the Brady Act to allow more than 3 business

days to research unresolved NICS background checks before allowing
Page 25 GAO-02-720 Closing Loopholes in NICS

firearms sales to proceed. FBI data indicate that, depending on how much

additional time is allowed, such a change could significantly reduce the

incidence of firearm-retrieval actions—including those involving domestic

violence offenders. For example, data for roughly the first 3 years of NICS

operations (Nov. 30, 1998 through Oct. 19, 2001) show that allowing up to

30 calendar days for background research would have reduced the number

of firearm-retrieval actions by about 54 percent.26 Although this is

somewhat less than the 77 percent reduction we previously reported

based on the first year of NICS operations, it represents a significant

improvement nonetheless.27 Furthermore, in terms of the burden on

firearms purchasers, allowing more time to research unresolved

transactions would affect a relatively small percentage of all NICS

background checks. According to an FBI analysis of August 2001 NICS

data, the vast majority—over 96 percent—of NICS background checks

were completed in 5 calendar days or less. Because a significant number

of firearm-retrieval actions involve domestic violence misdemeanors,

reducing the total number of such actions would, in turn, help reduce the

number of domestic violence offenders who are able to purchase firearms

under NICS.

As required under the Brady Act, a firearms purchase generally may not

proceed until the gun dealer has contacted NICS to determine whether the

transfer of the firearm would violate federal firearms law and any

applicable state law.28 As a result, state laws and procedures—such as

those discussed previously—can have a significant effect on NICS

operations, particularly in how NICS examiners interpret state criminal

history records to establish a purchaser’s eligibility. Because of the

variations in states’ firearms laws, NICS examiners are challenged to

identify the applicable federal and state laws for any particular transaction

and make a decision to approve or deny the purchase within the 3

business days allowed under the Brady Act. In looking at the differences in

how states restore gun ownership rights, issue concealed carry permits,

and identify domestic violence convictions in their criminal history

records, it is, therefore, important to consider how these actions may

affect the operations of a federal program such as NICS.

 26By comparison, allowing up to 20 days would have reduced the number of firearmretrieval actions by 38 percent; allowing up to 60 days would have reduced the number of

firearm-retrieval actions by 87 percent.

27GAO/GGD-00-56, p.23.

2818 U.S.C. § 922(t).

Conclusions
Page 26 GAO-02-720 Closing Loopholes in NICS

Regarding the restoration of gun ownership rights, there is little doubt that

persons who have their gun ownership rights restored by a state action

may sometimes commit subsequent crimes—perhaps even crimes that

would make them ineligible to possess firearms. Based on the limited

number of cases we reviewed from the six selected states, we found few

instances where such persons subsequently committed additional crimes.

However, regarding how such actions may affect NICS, any such persons

would, in all likelihood, be identified by a NICS background check if they

later attempted to purchase a firearm. Although some observers may

question whether it is appropriate to allow any restoration of gun

ownership rights after such rights have been lost through commission of a

crime, that issue is not relevant here for purposes of the potential effect on

NICS’ ability to screen prospective purchasers and prevent ineligible

persons from purchasing firearms.

On the other hand, state concealed carry permits—because they may

exempt the permit holder from a NICS background check when

purchasing firearms—can have a significant effect on NICS ability to

prevent the purchase of firearms by ineligible persons. If states do not

monitor their permit holders for continuing eligibility, and revoke the

permits of persons who become ineligible to possess firearms, it is

possible that ineligible persons could use revoked permits to purchase

firearms—avoiding a NICS check that might have prevented the sale. ATF

has determined that four of the states we visited issue concealed carry

permits that exempt permit holders from a NICS check when purchasing

firearms. In two of these four states, state officials told us they do not

recover all revoked permits and, in fact, they have no authority to force

such recovery. In these states, revoked permits could used by ineligible

persons to purchase firearms without a NICS check. States could avoid

this potential problem by requiring all permit holders to have a separate

background check at the time of purchase. A simpler solution—which is

practiced in one of these four states—is to require gun dealers to verify the

validity of the permit itself before approving a NICS-exempt gun purchase.

This procedure allows the NICS exemption for active permit holders,

while ensuring that ineligible persons cannot use revoked permits to avoid

a NICS check when purchasing firearms.

The inability of NICS to access domestic violence misdemeanor records in

a timely manner is particularly troubling, since these offenses represent

individuals who should be prevented from purchasing firearms. Yet, during

roughly the first 3 years of NICS operations, the percentage of NICS

firearm-retrieval actions involving domestic violence misdemeanors

(representing over 2,800 persons) was disproportionately large—almost
Page 27 GAO-02-720 Closing Loopholes in NICS

double—when compared with the percentage of all NICS denials involving

domestic violence misdemeanors. Various factors make domestic violence

misdemeanors difficult to identify in a timely manner. For example, while

states continue to work to automate and improve the overall quality and

accessibility of their criminal history records, this process has been

ongoing since the early 1990s and is still far from complete. Also, domestic

violence offenses may not always be clearly labeled as domestic violence,

and the complex federal definition of domestic violence misdemeanor

requires information that may not be immediately available in the state

criminal history record. Allowing unresolved NICS transactions to proceed

after 3 business days, when combined with these other factors, has

resulted in numerous domestic violence offenders being able to purchase

firearms without being identified by NICS. These are issues that have been

known for years, yet they continue to pose problems for NICS.

FBI data suggest that allowing additional time to research unresolved

NICS background checks before allowing firearms sales to proceed would

significantly reduce the number of firearm-retrieval actions—including

those involving domestic violence offenders. For example, based on data

for roughly the first 3 years of NICS operations, firearm-retrieval actions

would have been reduced by 54 percent if up to 30 days of research were

allowed. And, based on the FBI’s recent analysis of NICS transaction data,

most background checks would not be affected by such a change—in fact,

over 88 percent of the background checks were completed within 1 hour,

about 95 percent were completed within 3 calendar days, and over 96

percent were completed within 5 calendar days. Thus, allowing additional

time to research unresolved NICS background checks would affect a

relatively small percentage of firearms purchasers, while at the same time

helping to minimize the number of firearm-retrieval actions.

To minimize the possibility of ineligible persons using revoked concealed

carry permits to purchase firearms without a NICS background check, we

recommend that the Secretary of the Treasury consider developing

regulations requiring states to implement point-of-purchase verification

procedures, whereby the current validity of concealed carry permits must

be verified by licensed gun dealers before transferring firearms to permit

holders.

Recommendation for

Executive Action
Page 28 GAO-02-720 Closing Loopholes in NICS

To reduce the number of NICS firearm-retrieval actions and improve the

ability of NICS to prevent domestic violence offenders from purchasing

firearms, the Congress should consider amending the Brady Act to allow

more than 3 business days to complete unresolved NICS background

checks before firearms sales are allowed to proceed.

We requested comments on a draft of this report from the Departments of

Justice and the Treasury. On June 28, 2002, Justice’s Assistant Attorney

General for the Office of Legal Policy provided us written comments. The

comments did not specifically address our report’s recommendation or the

matter for congressional consideration. However, Justice acknowledged

that the problem of NICS delayed denials (which can lead to firearmretrieval actions) primarily stems from incomplete or inaccurate state

criminal history records. Justice also identified steps it is taking,

principally through the NCHIP grant program, to reduce the NICS error

rate and achieve the most complete and accurate criminal history record

system possible. These steps include (1) directing NCHIP grant funding to

assist states to automate and improve their criminal history record

systems, (2) encouraging states to use NCHIP funds to flag records of

misdemeanor domestic violence convictions, and (3) directing BJS to

study and recommend ways to target NCHIP grants to improve the

accuracy of criminal history records, including those relating to domestic

violence.

We acknowledge that using NCHIP grant funds to improve the accuracy

and completeness of state criminal history records is an appropriate and

reasonable long-term strategy for reducing the number of NICS delayed

denials and resulting firearm-retrieval actions. However, as we have noted

in the report, these efforts have been ongoing since 1995, and yet

significant numbers of firearm-retrieval actions have occurred during each

year of NICS operations. Moreover, preliminary results from the BJS study

noted above indicate that millions of state criminal history records remain

incomplete or inaccessible by NICS. This suggests that a different

approach is needed—if not permanently, then at least in the short term—

to immediately reduce the number of domestic violence offenders and

other ineligible persons who are able to purchase firearms under NICS.

Allowing additional time to research unresolved NICS background checks

before firearms sales can proceed would significantly reduce the number

of NICS firearm-retrieval actions. At the same time, Justice could continue

working with the states to achieve the long-term goal of improving state

criminal history records to the extent that delayed denials and firearmretrieval actions no longer posed a significant problem.

Matter for

Congressional

Consideration

Agency Comments

and Our Evaluation
Page 29 GAO-02-720 Closing Loopholes in NICS

On June 24, 2002, Treasury provided us written comments by the Director

of ATF. Generally, ATF agreed with the report’s recommendation to

consider developing regulations requiring states to verify the validity of

concealed carry permits before allowing firearms transfers to proceed

without a NICS background check. ATF noted, however, that it would first

need to examine the extent to which persons with revoked permits have,

in fact, been able to purchase firearms without NICS background checks.

If a real problem is found to exist, then ATF would consider what options

are available under current law to deal with the issue. The states that we

studied were not maintaining data to facilitate determining to what extent,

if any, that revoked permits have been used to purchase firearms without a

NICS check. However, in our view, the fact that such a loophole exists and

could be abused by persons legally prohibited from purchasing firearms is

sufficient reason for ATF to take administrative action to foreclose the

possibility of such transfers and, in turn, possibly prevent a firearm-related

crime of violence.

ATF also commented that certain language in the report could be

misinterpreted to imply that ATF favors repeal of the permit alternative

under NICS, that ATF believes the rationale for allowing permit holders to

avoid a background check at the time of sale is weaker now than it was

when the Brady Act was passed in 1993, or that ATF believes holders of

valid permits should be required to undergo a separate NICS check at the

time of purchase. ATF reiterated that its mandate is to enforce the statute

as enacted by Congress and enforce the permit provisions of the Brady Act

in a manner consistent with the plain language of the statute as well as

congressional intent. We modified our discussion of the permit alternative

under NICS in order to clarify ATF’s comments on this issue.

The full texts of Justice’s and ATF’s written comments are presented in

appendixes VI and VII, respectively. In addition to these written

comments, FBI and ATF officials provided us various technical

clarifications, which have been incorporated into the report where

appropriate.

We are sending copies of this report to the Attorney General, the Secretary

of the Treasury, and interested congressional committees. Copies will be

provided to other parties upon request. This report will also be available at

no charge on the GAO Web site at http://www.gao.gov.

If you have any questions about this report or wish to discuss the matter

further, please contact me at (202) 512-8777 or Danny R. Burton at
Page 30 GAO-02-720 Closing Loopholes in NICS

(214) 777-5600. Other key contributors to this report are acknowledged

in appendix VIII.

Sincerely yours,

Laurie E. Ekstrand

Director, Justice Issues
Appendix I: Objectives, Scope, and

Methodology

Page 31 GAO-02-720 Closing Loopholes in NICS

Representative John Conyers, Jr., Ranking Member, House Committee on

the Judiciary, requested that we provide information about state laws and

procedures regarding restoration of gun ownership rights, issuance of

concealed carry handgun permits, and convictions for domestic violence.

As agreed with the requester, our work focused on the following

questions:

• Restoration of gun ownership rights, including differences among

the states in how such rights may be restored to persons with criminal

convictions, and the extent to which persons who had their gun

ownership rights restored subsequently committed new crimes.

• Handgun concealed carry permits, including the extent to which

concealed carry permits exempt permit holders from a National Instant

Criminal Background Check System (NICS) check when purchasing

firearms, differences among the states in how they issue permits and

monitor permit holders, and what actions the states take to revoke

permits if the permit holders subsequently commit new crimes.

• Domestic violence misdemeanor convictions, including differences

among the states in how they ensure that domestic violence

convictions in state criminal history repositories are accessible to

NICS, and the extent to which persons convicted of domestic violence

purchased firearms without being identified by NICS.

To obtain nationwide perspectives on the three objectives, we met with

Federal Bureau of Investigation (FBI) officials from the FBI’s NICS

Program Office in West Virginia, and the Bureau of Alcohol, Tobacco and

Firearms (ATF) officials from ATF’s Firearms Programs Division and

Office of Chief Counsel in Washington, D.C. We obtained and reviewed

federal reports prepared by the Department of Justice’s Bureau of Justice

Statistics (BJS), as well as relevant studies published in professional

journals and studies prepared by private sector interest groups.

To obtain additional details about specific state laws and procedures, we

met with state or local officials in six states—California, Florida,

Massachusetts, Michigan, Texas, and Utah. As shown in table 4, and as

discussed with the requester, we judgmentally selected these states in

order to illustrate the range of state laws and procedures that address

restoration of gun ownership rights, handgun concealed carry permits, and

domestic violence misdemeanor convictions. Because these three issues

may affect NICS’ capability to identify persons ineligible to purchase

Appendix I: Objectives, Scope, and

Methodology

Objectives

Scope and

Methodology
Appendix I: Objectives, Scope, and

Methodology

Page 32 GAO-02-720 Closing Loopholes in NICS

firearms, we also selected the states to reflect a mix of state participation

types under NICS—full participant, partial participant, and

nonparticipant.1

Table 4: States Selected for Study of Firearms-Related Laws and Procedures

State laws and procedures

Restoration of gun

ownership rights

Handgun concealed

carry permita

Domestic violence

misdemeanors

State participation

in NICS

California • Pardon

• Automatic restoration

• May-issue state

• Local law

enforcement

agencies issue

permits

• Specific criminal

offense

• Penalty enhancement

statute

• State conducts

checks for all

firearms purchases

Florida • Pardon

• Restoration by petition

• Shall-issue state

• State non-law

enforcement agency

issues permits

• Definition statute

• Flag set in criminal

records

• State conducts

checks for all

firearms purchases

Massachusetts • Pardon

• Restoration by petition

• Automatic restoration

• May-issue state

• Local law

enforcement

agencies issue

permits

• No laws or procedures

identified

• FBI conducts checks

for all firearms

purchases

Michigan • Pardon

• Set-aside

• Automatic restoration

• Restoration by petition

• Shall-issue state

• Local law

enforcement

agencies issue

permits

• Specific criminal

offense

• Penalty enhancement

statute

• Flag set in criminal

records

• State conducts

checks for handgun

permits

• FBI conducts checks

for long gun

purchases

Texas • Pardon

• Set-aside

• Automatic restoration

• Shall-issue state

• State law

enforcement agency

issues permits

• Penalty enhancement

statute

• FBI conducts checks

for all firearms

purchases

Utah • Pardon

• Expungement

• Shall-issue state

• State law

enforcement agency

issues permits

• Definition statute

• Penalty enhancement

statute

• Flag set in criminal

record

• State conducts

checks for all

firearms purchases

a

In shall-issue states, a permit must be issued if no statutory reason for denial is revealed during a

background check. In may-issue states, a permit may be issued to eligible individuals after

considering additional subjective prohibitors, such as the applicant’s history and personal character.

Source: GAO’s analysis of various federal, state, and private sector information sources.

 1

States that conduct all NICS firearms checks are known as full participant states. States

that conduct NICS checks only for handguns are known are partial-participant states.

States in which the FBI conducts all firearms checks are known as nonparticipant states.
Appendix I: Objectives, Scope, and

Methodology

Page 33 GAO-02-720 Closing Loopholes in NICS

Generally, in performing our work, we relied on testimonial and

documentary evidence provided by the states, as well as similar evidence

provided by the FBI and ATF. In using state and federal statistical data, we

discussed the sources and accuracy of the data with appropriate officials.

We also worked with the officials to reconcile any discrepancies we

identified in the data.

The following sections present more details about our scope and

methodology for each of the three objectives.

Our work focused on (1) summarizing nationwide perspectives and

information on state laws and procedures dealing with the restoration of

gun ownership rights, (2) comparing and contrasting specific restoration

laws and procedures in selected states, and (3) determining the extent to

which restorees subsequently committed new crimes.

To obtain nationwide perspectives on restoration of gun ownership rights,

we first obtained background information from relevant reports prepared

by government agencies and studies published in professional journals

about the various ways in which states restore a person’s civil rights and

gun ownership rights once those rights have been lost through a criminal

conviction. Sources of information included BJS, the Department of

Justice’s Office of the Pardon Attorney, and the International Journal of

Comparative and Applied Criminal Justice.

We also met with FBI NICS Operations Center officials to discuss (1) the

extent to which restoration of rights is documented in state criminal

history records and (2) how restoration of rights can affect NICS

operations—specifically, how the FBI determines in a timely manner

whether a particular state action restores an individual’s right to purchase

a firearm under applicable federal and state law.

To obtain more detailed information about specific state restoration laws

and procedures, we met with officials at various state and local agencies in

California, Florida, Massachusetts, Michigan, Texas, and Utah. We

obtained information about relevant state laws, regulations, and

procedures that govern the restoration of gun ownership rights, focusing

on the four methods recognized in federal firearms law—executive

pardons, expungement of criminal records, set-aside of criminal

convictions, and restoration of civil rights.

Scope and Methodology

Regarding Restoration of

Gun Ownership Rights

Nationwide Perspectives

Selected States’ Restoration

Actions
Appendix I: Objectives, Scope, and

Methodology

Page 34 GAO-02-720 Closing Loopholes in NICS

To determine the extent to which restorees have been subsequently

involved in criminal activity, we first obtained background information

from relevant reports prepared by government agencies, studies published

in professional journals, and reports prepared by private interest groups.

Sources of information included the Department of the Solicitor General

(Canada), the Journal of the American Medical Association, and the

Violence Policy Center. We also met with officials from ATF’s Firearms

Programs Division and Office of Chief Counsel to discuss ATF’s federal

restoration of rights issues.2

From the six selected states, we analyzed data on state pardons,

expungements, set-asides, and restorations of civil rights to determine

whether persons whose firearms rights were restored in these states later

committed criminal offenses. The following data were obtained from the

six states:

• California – Data on pardons granted between calendar years 1990

and 2000.

• Florida – Data on pardons and restorations of firearms authority

granted between July 1999 and June 2001.

• Massachusetts – Data on pardons granted between calendar years

1990 and 2000.

• Michigan – Data on pardons granted between March 1969 and July

1995, conviction set-asides granted between September 2000 and

November 2001, and county restorations of firearms rights granted

between October 1992 and June 2001.

• Texas – Data on pardons granted between calendar years 1992 and

2001.

• Utah – Data on pardons granted between calendar years 1990 and 2001

and expungements granted between January 2000 and March 2001.

We then had our Office of Special Investigations, or in some cases the

state agencies themselves, check the names through criminal history

 2

As mentioned previously, persons who have lost the right to possess firearms—for

example, because of a criminal conviction—can petition ATF for relief from firearms

disabilities imposed by federal laws. However, since October 1992 Congress has prohibited

ATF from using any appropriated funds to process such petitions, essentially leaving the

states primarily responsible for restoring firearms rights.

Subsequent Criminal Activity
Appendix I: Objectives, Scope, and

Methodology

Page 35 GAO-02-720 Closing Loopholes in NICS

databases to determine whether any of those persons had been convicted

of additional crimes since the event that restored their rights.3

The selection of restoration data used in our analysis was largely

dependent on the availability of state data for each method of restoration.

In some cases, statewide data were not available and in other cases only

data from certain time periods were available. In some states, the analysis

was based on a review of a small number of cases, in order to facilitate

cooperation from the states in helping to analyze the data. For example:

• None of the states had data available for analysis if gun ownership

rights had been restored automatically (in California, Massachusetts,

Michigan, and Texas) or through expungement (in Utah).

• Some pardon data (in Michigan and Texas) did not have sufficient

identifying detail to enable us to perform a check of criminal history

databases and, as a result, the cases we examined were limited to the

number of pardons that had sufficient detail. In other instances

(Florida pardons and Michigan set-asides), the number of cases we

examined was limited in order to facilitate cooperation from the states

in helping to gather and analyze the data.

As a result of these limitations, the analysis of the state restoration data is

intended solely to illustrate what we found from the cases we reviewed in

the six states we visited, and the results cannot be generalized beyond the

timeframes and locations from which the data were collected.

Our work focused on (1) determining the extent to which concealed carry

permits exempt permit holders from NICS background checks when

purchasing firearms; (2) comparing and contrasting laws and procedures

for issuing, monitoring, and revoking concealed carry permits in selected

states; and (3) determining the extent to which states revoke concealed

carry permits when permit holders subsequently commit new crimes.

To determine the extent to which concealed carry permits exempt permit

holders from NICS background checks, we first reviewed the Brady Act

and its implementing regulations to identify any relevant provisions

 3

Because expungement actions may, in most cases, destroy the record or make it

unavailable for review, we did not do any subsequent analysis on the extent to which

persons who obtained expungements later committed crimes.

Scope and Methodology

Regarding Handgun

Concealed Carry Permits

Exemptions from NICS Checks
Appendix I: Objectives, Scope, and

Methodology

Page 36 GAO-02-720 Closing Loopholes in NICS

exempting permit holders from NICS checks. We obtained ATF Brady

permit exemption lists for 1999 and 2002 identifying which states issued

permits that ATF had determined would exempt the permit holders from a

NICS background check. We also met with officials from ATF’s Firearms

Programs Division and Office of Chief Counsel to discuss ATF’s

interpretation of the permit exemption language in the Brady Act and

reasons for exempting permits in some states and not others. In the six

selected states, we discussed the permit-exemption issue with state

officials and identified any state laws affecting the exemption of state

permit holders from firearms background checks.

To obtain more detailed information about specific state laws and

procedures for concealed carry permits, we met with officials at various

state and local agencies in California, Florida, Massachusetts, Michigan,

Texas, and Utah. We obtained information about state laws, regulations,

and procedures dealing with concealed carry permits—including (1) how

the states screen and approve permit applicants, (2) how the states

monitor active permit holders to ensure they remain eligible to possess

firearms, and (3) what actions the states take to revoke permits when

permit holders become ineligible.

To determine the extent to which concealed carry permit holders

subsequently commit crimes or other infractions that lead to permit

revocation, we first obtained background information from relevant

reports prepared by private interest groups. Sources of information

included the Cato Institute and the Violence Policy Center.

From the six selected states, we obtained and analyzed available data on

the number of concealed carry permits issued, the number of permits

revoked, and the extent to which states recovered revoked permits from

permit holders. Regarding revoked permits, we also obtained available

data on the criminal offenses that led to the revocations—including

whether these offenses were felonies or misdemeanors and whether they

involved a firearm. The following data were obtained from the six states:

• California – Data on permits issued and revoked during calendar year

2000.

• Florida – Data on permits issued and revoked between October 1987

(program inception) and December 2001.

• Massachusetts – Data on permits issued and revoked between

October 1998 (major program revision) and February 2002.

• Michigan – Data on permits issued and revoked between July 2001

(major program revision) and March 2002.

Selected States’ Laws and

Procedures

Subsequent Criminal Activity
Appendix I: Objectives, Scope, and

Methodology

Page 37 GAO-02-720 Closing Loopholes in NICS

• Texas – Data on permits issued and revoked between January 1996

(program inception) and October 2001.

• Utah – Data on permits issued and revoked between January 1994 and

December 2001.

Our analysis was largely dependent on the availability of state data. In

some cases, statewide data were not available, and in other cases only

data from certain time periods were available. For example:

• California permit data were available only for calendar year 2000;

Michigan data were available only since July 2001, when the state’s new

shall-issue permit law went into effect; and Massachusetts data were

available only since October 1998, when a major permit program change

took place.

• Only Florida and Utah data contained detail about whether the crime

leading to revocation had involved a firearm, and only Texas and Utah

data identified whether the crime committed was a misdemeanor or

felony.

As a result of these limitations, the analysis of the state concealed carry

permit data is intended solely to illustrate what we found from the

information we reviewed in the six states we visited, and the results

cannot be generalized beyond the timeframes and locations from which

the data were collected.

Our work focused on (1) summarizing nationwide perspectives and

information on state laws and procedures dealing with domestic violence,

(2) comparing and contrasting selected states’ laws and procedures for

ensuring domestic violence convictions are identified and reported to state

criminal history repositories, and (3) determining the extent to which

persons with domestic violence convictions are able to purchase firearms

because such records were not accessible to NICS.

To obtain nationwide perspectives and background information on

domestic violence laws and procedures, we reviewed relevant reports by

government agencies and private research groups about the various ways

in which state criminal codes address domestic violence, as well as the

general quality and accessibility of state criminal history records. Sources

of information included BJS, the Bureau of Justice Assistance, the

National Institute of Justice, the Justice Research and Statistics

Association, and the Institute for Law and Justice.

Scope and Methodology

Regarding Domestic

Violence Misdemeanor

Convictions

Nationwide Perspectives
Appendix I: Objectives, Scope, and

Methodology

Page 38 GAO-02-720 Closing Loopholes in NICS

To obtain more detailed information about specific state laws and

procedures, we met with officials at various state and local agencies in

California, Florida, Massachusetts, Michigan, Texas, and Utah. We

obtained information about relevant state laws, regulations, and

procedures dealing with domestic violence—including (1) how the states

treat domestic violence in their criminal codes or other state statutes and

(2) whether the states impose special identification or reporting

requirements on domestic violence records.

To determine the extent to which domestic violence offenders are able to

purchase firearms under NICS, we first reviewed relevant studies and

reports published in professional journals or private interest groups.

Sources of information included the Journal of the American Medical

Association and the Americans for Gun Safety Foundation.

We met with officials from the FBI’s NICS Operations Center and ATF’s

Firearms Program Division and Office of Chief Counsel to discuss the

extent to which domestic violence criminal history records cannot be

obtained within 3 business days under NICS (as prescribed under the

Brady Act) and the reasons why such records cannot be obtained. We

obtained the following FBI and ATF data for roughly the first 3 years of

NICS operations (Nov. 30, 1998 through Sept. 30, 2001):4

• We obtained FBI data on the number of NICS firearm-retrieval

actions—those where the FBI took more than 3 days to determine the

purchaser was ineligible and the firearms then had to be retrieved. We

also obtained FBI data on the total number of NICS denials and the

reason for these denials—broken out by each of the federal

disqualifying factors (including domestic violence).

• We obtained ATF data on (1) the number of NICS firearm-retrieval

actions referred to ATF for retrieval of firearms and (2) the number of

these firearm-retrieval actions that had been denied because of a

domestic violence misdemeanor conviction.

We used the FBI and ATF data to quantify the number of persons with

domestic violence convictions who were able to purchase firearms when

such records were not accessible to NICS within 3 business days. The

federal data allowed a more comprehensive, nationwide analysis of such

 4

The FBI data on total NICS denials and disqualifying factors covered the time period

November 30, 1998, through October 7, 2001.

Selected States’ Laws and

Procedures

Firearms Purchases by

Domestic Violence Offenders
Appendix I: Objectives, Scope, and

Methodology

Page 39 GAO-02-720 Closing Loopholes in NICS

transactions, whereas data from the selected states were more limited. For

example, some states tracked the number of such transactions but not the

disqualifying factors involved, while other states had laws which allowed

additional time to complete transactions where the purchaser’s eligibility

could not be determined within 3 business days.
Appendix II: Eligibility to Possess Firearms

under Federal or State Law

Page 40 GAO-02-720 Closing Loopholes in NICS

In determining whether a person is ineligible to possess firearms,

applicable federal and state laws must be considered. While federal

eligibility restrictions generally apply in all the states, states may place

additional restrictions on possessing or purchasing firearms. Although

other factors come into play, decisions about a person’s eligibility to

possess firearms largely are based on an assessment of state criminal

history records.

Under federal firearms law, the factors that make a person ineligible to

possess (or receive) firearms are generally described in Title 18, Chapter

44, of the United States Code1

—primarily Sections 922(g) and 922(n).

Ineligible persons include the following categories:

• Convicted felons and persons under felony indictment or

information. A felony is generally defined as any federal, state, or

foreign offense punishable by imprisonment for a term exceeding 1

year. It does not include state offenses classified as misdemeanors and

for which the punishment is 2 years or less in prison. In addition, what

constitutes a conviction is to be determined by the laws of the

jurisdiction in which the criminal proceedings were held.

• Fugitives from justice. A fugitive is generally defined as any person

who has fled from any state, either to avoid prosecution or to avoid

giving testimony in a criminal case. This definition includes persons

who, knowing criminal charges are pending, leave the state of

prosecution.

• Unlawful drug users or persons addicted to a controlled

substance. This category includes persons who use controlled

substances and have lost the power of self control and persons

currently using controlled substances in a manner not prescribed by a

licensed physician. An inference of current use may be demonstrated

by a drug conviction or positive drug test within the past year, or by

multiple drug arrests during the past 5 years.

• Illegal or unlawful aliens. This category includes aliens who are in

the United States without a valid immigrant, nonimmigrant, or parole

status, including aliens who entered the country without inspection and

authorization or whose authorized period of stay has expired. In

addition, certain other aliens lawfully admitted in nonimmigrant status

are also ineligible, unless they meet certain exceptions defined in

federal firearms law.

 1

The Gun Control Act of 1968, Public Law 90-618 (as amended).

Appendix II: Eligibility to Possess Firearms

under Federal or State Law

Firearms Eligibility

Restricted under

Federal and State Law
Appendix II: Eligibility to Possess Firearms

under Federal or State Law

Page 41 GAO-02-720 Closing Loopholes in NICS

• Persons adjudicated mentally defective or committed to a

mental institution. Mental defectives are generally defined as

persons who have been determined by a court or other lawful authority

to be a danger to themselves or others or who lack the mental capacity

to manage their own affairs, including persons who have been found to

be insane by a court in a criminal case. Commitment to a mental

institution is generally defined as a formal commitment by a court or

other lawful authority, including commitment for mental illness or

other reasons such as drug use. It does not include persons voluntarily

admitted to a mental institution.

• Persons who have renounced their U.S. citizenship. Persons

ineligible under this category must have renounced their citizenship

before a U.S. diplomatic or consular officer in a foreign country or

before an officer designated by the U.S. Attorney General when the

United States is at war.

• Persons dishonorably discharged from the military. This category

includes separation from the U.S. armed forces by a dishonorable

discharge or dismissal adjudged by a general court-martial. It does not

include separation resulting from any other type of discharge.

• Persons subject to a domestic violence restraining order. This

category includes persons who are subject to a court order that

prohibits harassing, stalking, or threatening an intimate partner or child

of an intimate partner, or placing such persons in reasonable fear of

bodily injury. The order must have been issued after a hearing for

which the person had actual notice and an opportunity to participate,

and the order must either find a credible threat to the intimate partner

or child, or by explicit terms prohibit the use, attempted use, or

threatened use of physical force.

• Persons convicted of a domestic violence misdemeanor. This

category includes any federal, state, or local misdemeanor where the

offense involves the use or attempted use of physical force, or the

threatened use of a deadly weapon, committed by a current or former

spouse, parent, or guardian. To be considered ineligible, such persons

must have had counsel and a jury trial (if applicable), unless those

rights were waived.

In addition to federal law, states may have their own specific laws dealing

with eligibility to possess or purchase firearms. In some states, only the

federal eligibility restrictions apply; in other states, eligibility may go

beyond what is required under federal law. In the six states we visited, for

example:

• California, a state which conducts all firearms checks under NICS,

prohibits the purchase of a firearm by persons convicted of certain
Appendix II: Eligibility to Possess Firearms

under Federal or State Law

Page 42 GAO-02-720 Closing Loopholes in NICS

misdemeanors—such as assault, battery, and criminal possession of a

firearm—for 10 years following the conviction.

• Massachusetts, a nonparticipant state under NICS, prohibits possession

of firearms by anyone convicted of certain state-defined violent

crimes—whether felonies or misdemeanors.

• Texas, a nonparticipant state under NICS, places no additional state

eligibility restrictions on prospective firearms purchasers.

• Utah, a state which conducts all firearms checks under NICS, prohibits

any juvenile adjudicated as delinquent within the past 7 years for an

offense that would have been a felony if committed by an adult from

purchasing a firearm.

In practice, federal and state determinations about eligibility to possess

firearms hinge largely upon a person’s criminal history, primarily whether

the individual has been convicted of a felony or a domestic violence

misdemeanor or has been arrested and/or convicted for drug-related

offenses. For example, according to FBI data, NICS denied 199,720

firearms purchases during roughly its first 3 years of operation (from Nov.

1998 to Oct. 2001). As shown in table 5, the vast majority of these

denials—almost 92 percent—were due to the purchasers’ criminal

histories.

Criminal History a

Key Element in

Determining

Eligibility
Appendix II: Eligibility to Possess Firearms

under Federal or State Law

Page 43 GAO-02-720 Closing Loopholes in NICS

Table 5: Reasons Why NICS Denied Firearms Purchases (Nov. 30, 1998 through

Oct. 7, 2001)

Disqualifying factor

Total number of

FBI NICS denials Percent of total

Criminal history 182,817 91.5%

 Felony 126,945 63.6

 Domestic violence misdemeanor 27,845 13.9

 Drug abuse 9,898 5.0

 Other criminal historya18,129 9.1

Fugitive from justice 5,620 2.8

Mental defective 716 0.4

Illegal/unlawful alien 1,178 0.6

Dishonorable discharge 117 0.06

Citizenship renounced 14 0.01

Domestic violence restraining order 7,647 3.8

Other disqualifying factorb1,611 0.8

Total 199,720 100%

Note: Percentages may not equal 100 due to rounding.

a

“Other criminal history” includes denials due to (1) a state prohibitor, (2) multiple convictions for

driving under the influence, and (3) arrest warrants that were not in the FBI’s National Crime

Information Center database.

b

“Other disqualifying factor” includes denials due to other noncriminal prohibitors, such as state

protection orders.

Source: FBI NICS Program Office.

In a July 2001 report on the implementation of the Brady Act and NICS,

BJS reported similar data for state and local agencies that conduct

firearms purchase background checks.2

 Specifically, during the year 2000,

just over 66 percent of all state and local firearms purchase denials were

denied due to felony convictions, felony indictments, or domestic violence

convictions.

The number of criminal history records maintained by the FBI and the

states is enormous—and continues to grow. As shown in table 6,

according to BJS, there were over 62 million criminal history records in

the United States as of December 1999.3

 The vast majority of these

 2

Department of Justice, BJS, Background Checks for Firearm Transfers, 2000, NCJ-187985

(Washington, D.C.: July 2001).

3

Department of Justice, BJS, Survey of State Criminal History Information Systems,

1999, NCJ-184793 (Washington, D.C.: Oct. 2000).
Appendix II: Eligibility to Possess Firearms

under Federal or State Law

Page 44 GAO-02-720 Closing Loopholes in NICS

records—about 95 percent—were generated by the states.4 Furthermore,

the total number of criminal history records increased by over 23 percent

between 1993—the year the Brady Act was passed—and 1999.

Table 6: Number of Criminal History Records in the United States (as of Dec. 31,

1999)

Total criminal

history records

Percent

of total

U.S. total 62,389,214

 State 59,183,600 94.9%

 Federal 3,152,069 5.1

 Foreigna53,545 0.1

Selected states

 California 6,166,000 9.9%

 Florida 3,754,200 6.0

 Massachusetts 2,530,000 4.1

 Michigan 1,259,500 2.0

 Texas 6,157,100 9.9

 Utah 392,800 0.6

Note: Percentages may not equal 100 due to rounding.

a

Includes records on foreign fugitives and deported felons.

Source: BJS.

As noted previously, most NICS denials are based on criminal history

records. As table 6 indicates, these criminal history records are generated

predominantly by the states and are maintained in state criminal history

repositories. As such, NICS must rely on the accuracy of state criminal

history records in making decisions about the eligibility of prospective

firearms purchasers.

 4

More recently, BJS reported that the total number of state criminal history records had

increased to almost 64 million, as of July 2001.
Appendix III: Restoration of Gun Ownership

Rights

Page 45 GAO-02-720 Closing Loopholes in NICS

This appendix discusses (1) how federal firearms law recognizes certain

state methods of restoring gun ownership rights, (2) national overview

information on the availability of these methods throughout the states, and

(3) the extent to which these methods have been used by the six states we

studied—California, Florida, Massachusetts, Michigan, Texas, and Utah.

Persons prohibited from possessing firearms due to a state criminal

conviction may, under state laws, have those rights restored by the state in

which the criminal offense occurred.1

 Certain types of state actions that

serve to restore firearms rights are also recognized under federal law as a

restoration of the federal right to possess firearms. This recognition arises

out of the meaning of the term conviction—that is, federal law states that

what constitutes a conviction is to be determined by the law of the

jurisdiction in which the criminal proceedings were held. More

importantly, federal law specifies that any conviction that has been

expunged or set aside, or for which the person has been pardoned or has

had his civil rights restored, is not considered a conviction for firearms

eligibility purposes unless the expungement, pardon, or restoration

expressly prohibits the person from possessing firearms.2

 Thus, federal

firearms law recognizes state use of any of the four specified restoration

methods to restore gun ownership rights to persons disqualified due to a

state criminal conviction.3

Because relief from firearms disabilities is no longer readily available at

the federal level,4

 individuals convicted of disqualifying criminal offenses

 1

Regarding federal criminal convictions, in Beecham v. United States 511 U.S. 368 (1994),

the U.S. Supreme Court held that federal offenders can have their firearms rights restored

only through a federal restoration action, such as a presidential pardon, and not a state

restoration action.

2

18 U.S.C. § 921(a)(20) applies this definition to felony convictions (i.e., crimes punishable

for a term exceeding 1 year); subsection (a)(33) applies this definition to domestic violence

misdemeanor convictions.

3

The provisions of 18 U.S.C. § 921 regarding restoration of firearms rights apply only to

criminal convictions, as previously defined. Section 921 does not address state restoration

for noncriminal firearms disqualifiers, such as mental disability or drug addiction.

4

Since October 1992, Congress has prohibited Treasury from expending appropriated funds

to act upon petitions for relief from federal firearms disabilities under its authority at 18

U.S.C. § 925. Regarding federal crimes, however, relief from firearms disabilities may be

obtained through a presidential pardon, under Article II, Section 2, of the United States

Constitution.

Appendix III: Restoration of Gun Ownership

Rights

Federal Law

Recognizes State

Methods of Restoring

Gun Ownership

Rights
Appendix III: Restoration of Gun Ownership

Rights

Page 46 GAO-02-720 Closing Loopholes in NICS

turn to the states for restoration of gun ownership rights, through one of

the four methods recognized by federal law—pardon, expungement, setaside, or restoration of civil rights. States use these methods to restore

firearms rights, as well as any civil rights—such as the right to vote, hold

office, and serve on a jury—lost as a result of criminal offenses. Each of

these methods can have a different impact on the disqualifying record, as

well as the extent to which firearms or civil rights are restored, as

described in the next section.

• Pardon – A pardon is, in general, an executive action that typically

mitigates the punishment the law demands for an offense and restores

any or all of the rights and privileges forfeited on account of the

offense. The power to pardon for state crimes is generally vested in

state governors or delegated to state pardon boards. An unconditional

or full pardon generally absolves the offender from all legal

consequences, direct or collateral, of the crime and conviction and

generally restores civil rights.5

 A conditional or partial pardon may

require certain actions on the part of the offender or may absolve only

a portion of the legal consequences of the crime. States vary in how

they document pardon actions in their criminal history record systems.

Most states retain records on the original offense, noting the pardon on

the criminal history record, while some destroy or seal all records

pertaining to the offense.

• Expungement – An expungement (or erasure) is a procedure whereby

a court orders the annulment or destruction of arrest records or other

court proceedings, such as a criminal conviction, provided certain

conditions are met. When a conviction record is expunged, it may allow

the offender to say, under certain circumstances, that he or she has

never been convicted; expungement may not, however, automatically

restore the offender’s firearms rights. Expungement can also result in

the sealing of a record, but whereas certain parties can still examine an

erased record, a sealed record can generally be examined only by court

order. Expungement and sealing of records are usually provided for by

statute for juvenile records, but may also apply to less serious records,

such as arrest records for persons acquitted at trial or whose arrest

was deemed by a court to be unlawful. Some states require the passage

of a certain period of time before an offender can apply for

 5

A pardon does not necessarily overcome licensing qualifications for employment or

occupation purposes, such as the requirement of “good moral behavior.” Thus, pardoned

offenders may still be barred from employment in certain occupations (e.g., law,

contracting) that have such licensing requirements.
Appendix III: Restoration of Gun Ownership

Rights

Page 47 GAO-02-720 Closing Loopholes in NICS

expungement. Some states destroy expunged criminal records, while

others note the action in the record or seal the record.

• Set-Aside – A set-aside is an action that annuls or revokes a previously

issued judgment or order—such as a felony conviction. To set-aside a

judgment is to make it void or of no effect and to deprive it of all force

and operation as to future transactions. The majority of states note a

set-aside in the offender’s criminal record; a few destroy the criminal

record.

• Restoration of Civil Rights – Just as state law may impose certain

civil and collateral disabilities on criminal offenders, it may also make

available procedures to remove those disabilities and restore any rights

that were lost upon conviction. In some states, civil and collateral (e.g.,

firearms) rights may be restored automatically upon completion of

sentence or upon the passage of time, as provided for by statute; in

other states, restoration of rights may require an administrative or

judicial act, which may be based on evidence of rehabilitation. Most

states note the restoration in the offender’s criminal record, while a

few may destroy the record.

As mentioned previously, persons prohibited from possessing firearms due

to a state criminal conviction may have those rights restored by the state

in which the offense occurred, through any of four specified methods

prescribed in federal firearms law—pardon, expungement, set-aside, and

restoration of civil rights. Each of these four methods can have a different

effect on a prohibited person’s underlying criminal conviction and the

extent to which firearms rights are restored. Recent studies have shown

that states vary in terms of (1) the restoration methods they employ, (2)

the laws and procedures they have in place to implement those restoration

methods, and (3) the underlying effect they impose on the criminal record.

In 1996, the U.S. Office of the Pardon Attorney reported on the availability

of restoration methods among states for felony offenders6

 and found that

states vary in terms of the methods available for relief as well the laws

they have in place to govern these methods. The variation in procedures

was so great that the Office of the Pardon Attorney characterized state

laws as a national “crazy-quilt” of disqualifications and restoration

 6

Department of Justice, Office of the Pardon Attorney, Civil Disabilities of Convicted

Felons: A State-by-State Survey (Washington, D.C.: Oct. 1996).

National Overview on

State Methods to

Restore Gun

Ownership Rights
Appendix III: Restoration of Gun Ownership

Rights

Page 48 GAO-02-720 Closing Loopholes in NICS

procedures. The report also identified disagreement among agencies as to

how the laws in particular jurisdictions should be interpreted and applied.

Moreover, the Office of the Pardon Attorney found that a restoration of

civil rights under state law—even through a governor’s pardon—does not

necessarily restore firearms privileges.

Despite considerable variation among states, the Office of the Pardon

Attorney determined that state laws regarding the loss and restoration of

civil rights could be characterized in terms of the following five patterns:

• Civil rights are not lost upon conviction, or civil rights are lost when

the offender is incarcerated and automatically restored upon release.

• Rights are lost upon conviction, then are automatically restored after

completion of sentence, either through passage of time or by obtaining

a certificate of discharge from the sentence.

• Rights are restored through judicial or administrative procedure, which

typically requires completion of sentence and a waiting period and may

also require proof of rehabilitation.

• Rights are restored only by pardon.

• Rights are permanently lost and cannot be restored.

Other studies of restoration of civil rights provide context as to the range

and use of restoration methods by states and the effect these methods

have on disqualifying criminal convictions. For example, a 1997 study

regarding the legal consequences of felony convictions compared the

availability of restoration methods among states in 1996 with the

availability of methods 10 years earlier in 1986.7

 Researchers found that,

during those 10 years, states did not increase the number of restoration

methods available to former offenders to restore civil rights. The study

reported that in 1996 the availability of restoration methods among states

was as follows:

• All 50 states allowed for pardons. In 22 states, the decision to pardon

rested with the governor; in 16 states, the decision was shared between

the governor and a board of pardons; in 11 states the decision rested

with the board of pardons; and in 1 state, the decision required an act

of the state’s general assembly.

 7

“Reducing the Legal Consequences of a Felony Conviction: A National Survey of State

Statutes Ten Years Later,” International Journal of Comparative and Applied Criminal

Justice, Vol. 21, No. 1 (Spring 1997).
Appendix III: Restoration of Gun Ownership

Rights

Page 49 GAO-02-720 Closing Loopholes in NICS

• 27 states had some method of felony record expungement (including

sealing, annulment, and withheld or deferred judgments). In 9 of the 27

states, the law provided for general expungement or related legal

actions. In the other 18 states, the expungement statutes contained

specific eligibility requirements for the sealing of criminal records.

• 42 states statutorily provided for automatic restoration of all or some

civil rights for felony offenders. In 22 of the 42 states, the law restored

one or more civil rights after completion of sentence. In the other 20

states, an existing general statute restored civil rights.

In October 2000, BJS reported on the status of state criminal history

information systems.8

 In its report, BJS included the results of a survey,

taken in 1999, on the policies and practices of state criminal history

repositories with respect to the four restoration methods, showing how

each of the methods affected states’ treatment of the underlying criminal

history record. This survey showed that in 1999:

• 49 states reported statutes that provided for the granting of pardons. In

43 of the states, the pardon was to be noted in the criminal history

record; in 3 states, the record was to be destroyed; in 1 state, the record

was to be sealed; and 2 states did not indicate how pardons were

treated in terms of criminal history records.

• 21 states had statutes providing for the expungement of felony

convictions. In 9 of the states, an expunged criminal history record was

to be destroyed; in 7 states, the expungement was to be noted in the

criminal record; and in 5 states, the record was to be sealed. In two

other states, state law did not specifically provide for expungement,

but allowed records to be destroyed or sealed based on a court order.

• 40 states had statutes that provided for the set aside of felony

convictions. In 33 of the states, the set-aside was to be noted in the

criminal record; in 3 states, the record was to be destroyed; in 1 state,

the record was to be sealed; and 3 states did not indicate how set-aside

records were to be treated by the state repository.

• 41 states had legal provisions that provided for the restoration of a

convicted felon’s civil rights. In 33 of the states, the restoration was to

be noted in the criminal history record; in 3 states, the record was to be

destroyed; in 1 state, the record was to be sealed; in 2 states,

restoration was not tracked or no action was taken; and 2 states did not

indicate how restoration records were to be treated.

 8

Department of Justice, BJS, Survey of State Criminal History Information Systems,

1999, NCJ-184793 (Washington, D.C.: Oct. 2000).
Appendix III: Restoration of Gun Ownership

Rights

Page 50 GAO-02-720 Closing Loopholes in NICS

To obtain more detailed information regarding restoration of gun

ownership rights, we reviewed state laws and procedures in six states—

California, Florida, Massachusetts, Michigan, Texas, and Utah. Each of the

six states we visited provided for the restoration of gun ownership rights

through one or more of the four specified methods.9

 Pardon was the most

commonly utilized method, with all six states employing some form of

pardon—either full or conditional—that restored gun ownership rights to

previously ineligible persons. Expungement—available only in Utah—was

the least commonly available method of restoring gun ownership rights.

For purposes of our study, we identified state laws and procedures to

restore state firearms rights that may, in turn, also restore federal firearms

rights by means of the four methods recognized under 18 U.S.C § 921.10 In

addition to identifying state actions that fully restore state and federal gun

ownership rights, we also identified certain state restoration actions that

only partially restore such rights. In the category of “restoration of civil

rights,” some actions that restore state gun ownership rights do not restore

federal firearms rights, because they do not provide full relief from

disabilities—that is, they do not also restore civil rights (as prescribed in

18 U.S.C. § 921). Other state restoration actions do not restore federal

firearms rights because civil rights were lost as a result of a noncriminal

disqualifier (such restorations are not recognized under 18 U.S.C. § 921).

Nevertheless, we present the information here in order to illustrate the

complexity of state restoration laws and procedures and the interaction

between state and federal firearms laws.

Regarding the specific state laws and procedures for restoring gun

ownership rights, the six states differed primarily in three areas: (1) the

processes for application of and approval for relief, (2) the conditions or

criteria under which a prohibited person was eligible to receive relief, and

(3) the effect restoration methods have on firearms rights. Table 7 shows

the differences among the six states in these three areas.

 9

We focused on those restoration methods provided for by state statute. Gun ownership

rights may also be restored by court actions—most notable, where convictions are “set

aside” by an appellate court for reasons of procedural or substantive error, which would

nullify the conviction and restore any rights lost as a result of the conviction.

10In some cases, these four restoration methods may also be used to restore other rights—

such as civil rights—lost as a result of a state criminal conviction.

Information on

Restoration of Gun

Ownership Rights in

Selected States
Appendix III: Restoration of Gun Ownership

Rights

Page 51 GAO-02-720 Closing Loopholes in NICS

Table 7: Summary Information on Laws and Procedures Regarding Restoration of Gun Ownership Rights in Selected States

State

Method of

restoration

Selected eligibility

criteria

Application and

approval process

Effect on gun

ownership rights

Californiaa • Full pardon Available 10 years after

completion of sentence, but

time limit may be waived by

governor.

Available for felonies and

certain registrable

misdemeanor sex offenses.

Must have a clean criminal

record subsequent to

offense and good moral

character.

Residents apply to the

court for a certificate of

rehabilitation, which is

reviewed by the governor,

or apply directly to the

governor; out-of-state

applicants apply directly to

the governor’s office.

All applicants subject to

background checks.

For misdemeanors and

felonies not involving a

dangerous weapon, restores

all state and federal firearms

rights.

For felonies involving a

dangerous weapon, does not

restore state or federal

firearms rights.

Pardons without certificate of

rehabilitation must include

specific language restoring

firearms rights.

• Restoration

of civil rights

Available 5 years following

release from confinement for

certain mental health

disqualifications.

Automatic—no application

or approval required.

Restores state firearms rights.

Does not restore federal

firearms rights.

Available 10 years after

completion of sentence for

certain misdemeanors.

Automatic—no application

or approval required.

Restores state firearms rights.

Does not restore federal

firearms rights.

Floridab • Full pardon Available 10 years after

completion of sentence for

felonies and domestic

violence misdemeanors.

Must be a Florida resident;

cannot have more than

$1,000 in criminal or traffic

infraction penalties.

Not available for

impeachment; available for

treason by legislative

approval.

Applicants apply to state

pardon board and are

subject to background

check and screening.

All pardons, except in

cases of treason, are

approved by state review

panel led by the governor.

Restores all state and federal

firearms rights.

• Restoration

of civil rights

Available for felonies,

8 years after completion of

sentence.

All other criteria same as full

pardon.

Same as full pardon. Restores all state and federal

firearms rights.
Appendix III: Restoration of Gun Ownership

Rights

Page 52 GAO-02-720 Closing Loopholes in NICS

State

Method of

restoration

Selected eligibility

criteria

Application and

approval process

Effect on gun

ownership rights

Massachusettsc • Full pardon Pardons usually not

available for certain felony

offenses.

Must show compelling need,

have a clean criminal record

subsequent to offense, and

demonstrate good

citizenship.

Applicants apply to state

parole board and are

subject to background

check; must demonstrate

that police will grant a

firearms permit.

Pardons approved by

governor-led review panel.

Restores all state and federal

firearms rights.

• Restoration

of civil rights

After release from

confinement for mental

health disqualifier, with

affidavit from physician.

Applicants apply to local

police for state handgun

permit, with physician’s

affidavit.

Restores state firearms rights.

Does not restore federal

firearms rights.

5 years after completion of

sentence for nonviolent

felonies and misdemeanors.

Not available for crimes

involving trafficking of

controlled substances.

Automatic—no application

or approval required.

Restores state firearms rights

for long guns only.

Does not restore federal

firearms rights.

Michigan • Full pardon Not available for

impeachment.

Applicants apply to state

and are subject to a

background check.

Pardons approved by the

governor.

Restores all state and federal

firearms rights.

• Set-aside 5 years after completion of

sentence for misdemeanor

and specified felony

convictions.

Cannot have more than one

felony conviction.

Applicants petition court of

record and are subject to

a background check.

For misdemeanors, restores

all state and federal firearms

rights.

For felonies, restores state

rights to purchase and

possess firearms; does not

restore federal firearms rights.

• Restoration

of civil rights

3 years after completion of

sentence for low-grade or

nonviolent felonies.

Automatic—no application

or approval required.

Restores state firearms rights.

Does not restore federal

firearms rights.

5 years after completion of

sentence for specified

felonies (e.g., arson).

Applicants apply to County

Concealed Weapons

Licensing Board.

Restores state firearms rights.

Does not restore federal

firearms rights.

Texasd • Full pardon and

pardon for

innocence

Full pardon not available for

impeachment; available for

treason with legislative

approval.

Applicants apply to state

pardon board and undergo

a background check.

Pardons approved by

governor with board

recommendation.

Restores all state and federal

firearms rights.
Appendix III: Restoration of Gun Ownership

Rights

Page 53 GAO-02-720 Closing Loopholes in NICS

State

Method of

restoration

Selected eligibility

criteria

Application and

approval process

Effect on gun

ownership rights

• Firearms authority

pardon

3 years after completion of

sentence, only in extreme

conditions that prevent

livelihood.

Not available for offenses

involving violence, drugs, or

firearms. Must have clean

record, other than the

offense in question.

Applicants must obtain or

apply for a state pardon and

apply to U.S. Secretary of

the Treasury for federal relief

from disabilities.

Applicants can apply to

local sheriff or state

pardon board.

Approved by the

governor.

Restores all state and federal

firearms rights.

• Set-aside Must fulfill conditions of

probation.

Not available for registered

sex offenders, intoxication

convictions, and state jail

felonies.

Applicants apply to court

of jurisdiction.

Restores all state and federal

firearms rights.

• Restoration

of civil rights

5 years after completion of

sentence for felonies and

domestic violence

misdemeanors.

Automatic—no application

or approval required.

For misdemeanors, restores

state firearms rights.

Does not restore federal

firearms rights.

For felonies, restores state

firearms rights only for

possession in the home.

Does not restore federal

firearms rights.

Utahe • Full pardon 5 years after completion of

sentence, after all other

judicial remedies, including

expungement, have been

exhausted.

Applicants apply to and

are approved by state

board, and are subject to

background checks.

Restores all state and federal

firearms rights.

• Expungement 3 to 15 years after

completion of sentence,

depending on offense.

Cannot have more than two

convictions—only one

felony—or prior

expungements.

Not available for registrable

sex offenses and serious

felonies.

Applicants apply to

original court of record for

approval, subject to

background check by

state agency.

Restores all state and federal

firearms rights.
Appendix III: Restoration of Gun Ownership

Rights

Page 54 GAO-02-720 Closing Loopholes in NICS

Note: “Completion of sentence” generally refers to completion of incarceration or release from

supervision or probation, whichever occurs later.

a

California recognizes expungements only for criminal records expunged before September 15, 1961.

b

Florida also restores firearms rights in cases of deferred adjudication or suspended sentence—for

felonies and domestic violence misdemeanors—3 years after completion of probation or other courtimposed condition.

c

Massachusetts also allows sealing of records—and the restoration of firearms rights—for a first-time

misdemeanor drug (possession) conviction.

d

In Texas, persons who are pardoned are also entitled to have records related to the pardoned

conviction expunged.

e

Utah also allows criminal records to be set aside under certain circumstances, which make the

records eligible for expungement and the individual eligible for restoration of gun ownership rights.

Source: GAO’s analysis of state documents and discussions with state officials.

The six states we reviewed differed in the processes they have in place for

restoring firearms rights. Most of the states either provide for automatic

restoration of firearms rights for certain criminal disqualifications, or

require an administrative or judicial petition to restore those rights. For

example, California employs automatic restoration for persons convicted

of certain misdemeanor offenses, 10 years following completion of

sentence. Michigan, on the other hand, employs both procedures: persons

convicted of low-grade or nonviolent offenses have their rights restored

automatically 3 years after completing their sentence, while persons

convicted of more serious felonies—such as arson or drug-related

felonies—must apply to their County Concealed Weapons Licensing Board

for relief 5 years after completing their sentence. In contrast, Utah has no

separate provision for restoring firearms rights—individuals in that state

must apply for a pardon or an expungement. States also differed in the

processes they use for reviewing and awarding pardons. For example, in

California, pardons are approved by the governor; in Utah, pardons are

approved by a state pardon board; and in Massachusetts, pardons are

approved by a review panel, which includes the governor.

All of the six states we visited require applicants to meet certain eligibility

criteria—depending on the type of restoration method—to qualify for

firearms relief, such as the passage of time or the absence of additional

convictions. For example, persons in Florida must wait 10 years following

the completion of their sentence to apply for a full pardon or 8 years to

apply for a restoration of firearms authority. Persons convicted in

Michigan of specific felonies—for example, arson—must wait 5 years after

the completion of their sentence to apply for relief from their County

Concealed Weapons Licensing Board. Many of the states also restrict the

types of offenses for which the state will grant relief. For example,
Appendix III: Restoration of Gun Ownership

Rights

Page 55 GAO-02-720 Closing Loopholes in NICS

California automatically restores firearms rights to offenders convicted of

certain misdemeanors—but not felonies—10 years after completion of

sentence. Some of the states also require that an applicant have no

additional convictions other than the offense in question. In Utah, only

certain offenders with two or fewer convictions—only one of which can

be a felony—can apply to have their criminal history record expunged.

In four of the states we reviewed—California, Massachusetts, Michigan,

and Texas—certain state restoration actions restore state gun ownership

rights, but do not restore federal firearms rights. As a result, persons in

these states who are authorized under state law to possess a firearm are

still prohibited from doing so under federal law. In California, for example,

state law automatically restores the state right to possess or purchase

firearms to certain persons who have been involuntarily committed to a

mental institution, 5 years after their release from confinement.11 This

restoration does not, however, restore federal firearms rights to persons

prohibited under this category. Under 18 U.S.C. § 921, state actions to

restore firearms rights are recognized as a restoration of federal firearms

rights only for persons who lost those rights as a result of criminal

disqualifiers (such as a felony conviction), as opposed to noncriminal

disqualifiers such as confinement to a mental institution.

In Massachusetts, ATF officials have determined that the operation of

state law is inconsistent with federal law in terms of restoring firearms

rights—both handgun and long gun rights—to persons who have been

adjudicated as mentally defective or involuntarily committed to a mental

institution. Under Massachusetts statute, persons prohibited under the

mental defectives category can seek to regain their state firearms rights if

they provide an affidavit from a registered physician attesting that they are

not disabled in a manner that should prevent them from possessing

firearms. However, according to ATF officials, the same principle that

prevents recognition of California’s mental health restoration statute

under federal firearms law also prevents recognition of Massachusetts’

mental health restoration statute. That is, the specified methods of

restoring firearms rights under 18 U.S.C. § 921 do not include state

restoration of firearms rights lost as a result of noncriminal

disqualifications.

 11California allows this restoration for persons who have been involuntarily committed for

14 days or less to a mental institution, which is a state firearms disqualification.
Appendix III: Restoration of Gun Ownership

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Page 56 GAO-02-720 Closing Loopholes in NICS

Also in Massachusetts, state law restores the right to possess certain long

guns, but not handguns, to nonviolent offenders 5 years following the

completion of sentence. According to ATF officials, because this

restoration does not apply equally to both handgun and long gun rights, it

cannot be recognized under federal law as restoring firearms rights. This

stems from a ruling by the U.S. Supreme Court, Caron v. United States, in

which the court held that a state restoration action would not restore

federal firearms rights, if any restriction on an individual’s right to possess

firearms remained following the restoration.12 Similarly, in Michigan,

persons convicted of a nonviolent felony have their firearms rights

automatically restored 3 years after completion of sentence, subject to

certain conditions. However, the state’s concealed carry law prohibits

anyone convicted of a felony from ever obtaining a concealed carry

permit. According to ATF officials, because of this restriction on the right

to obtain a concealed carry permit, Michigan’s restoration only partially

restores firearms rights to persons convicted of a felony. As a result, Caron

also applies, and such restorations cannot be recognized as restoring

federal firearms rights.

Texas’ law restores—to varying degrees—state firearms rights that were

lost as a result of domestic violence misdemeanor and felony convictions.

The law automatically restores, 5 years after completion of sentence, all

state firearms rights to persons convicted of a domestic violence

misdemeanor. The law also allows persons convicted of a felony to

possess a firearm in their home 5 years after completion of sentence.

However, according to ATF officials, the state law does not restore federal

firearms rights for either category of offense—felony or misdemeanor—

because it does not also restore the offenders’ civil rights, as specified

under 18 U.S.C. § 921(a)(20).

 12Caron v. United States, 524 U.S. 308 (1998).
Appendix IV: Handgun Concealed Carry

Permits

Page 57 GAO-02-720 Closing Loopholes in NICS

This appendix presents (1) a national overview of concealed carry permit

programs and (2) information about selected states’ permit programs—

including how states screen permit applicants, how they monitor the

eligibility of permit holders, and what actions states take to revoke permits

if the permit holders commit crimes.

Concealed carry laws allow gun owners, under certain conditions, to carry

a concealed loaded firearm in public. While there is no federal law

specifically addressing the issuance of concealed carry permits, 42 states

have passed laws allowing citizens to carry certain concealed firearms in

public after obtaining a permit from state or local law enforcement

authorities. As shown in table 8:

• Twenty-nine states are commonly known as “shall-issue” states, where

a concealed carry permit must be issued if no statutory reason for

denial is revealed during a background check of the applicant.

• Thirteen states are known as “may-issue” states, where the police have

discretion to grant concealed carry permits to eligible individuals after

considering additional subjective prohibitors, such as the applicant’s

history, character, and intended purpose for carrying a firearm.

• One state allows any legal gun owner to carry a concealed firearm

without a permit, under most circumstances.

• In the remaining seven states, carrying a concealed firearm is generally

prohibited.

Appendix IV: Handgun Concealed Carry

Permits

National Overview of

Concealed Carry

Permit Programs
Appendix IV: Handgun Concealed Carry

Permits

Page 58 GAO-02-720 Closing Loopholes in NICS

Table 8: Status of States with Regard to Concealed Carry of Firearms (as of June 2002)

Concealed carry allowed

Shall-issue

permit required

May-issue

permit required No permit required

Concealed carry

prohibited

Alabama ia

Alaska i

Arizona i

Arkansas i

California i

Colorado i

Connecticut ia

Delaware i

Florida i

Georgia i

Hawaii i

Idaho i

Illinois i

Indiana i

Iowa i

Kansas i

Kentucky i

Louisiana i

Maine i

Maryland i

Massachusetts i

Michigan i

Minnesota i

Mississippi i

Missouri i

Montana i

Nebraska i

Nevada i

New Hampshire i

New Jersey i

New Mexico i

New York i

North Carolina i

North Dakota i

Ohio i

Oklahoma i

Oregon i

Pennsylvania i

Rhode Island i

South Carolina i
Appendix IV: Handgun Concealed Carry

Permits

Page 59 GAO-02-720 Closing Loopholes in NICS

Concealed carry allowed

Shall-issue

permit required

May-issue

permit required No permit required

Concealed carry

prohibited

South Dakota i

Tennessee i

Texas i

Utah i

Vermont i

Virginia i

Washington i

West Virginia i

Wisconsin i

Wyoming i

Total 29 13 1 7

a

Sources differ somewhat as to whether Alabama and Connecticut should be classified as “shallissue” or “may-issue” states. On the basis of our analysis of these states’ permit laws, we classified

these states as “may-issue” states.

Source: GAO’s analysis of state laws and information from The Brady Campaign to Prevent Gun

Violence, the National Rifle Association, the Firearms Law Center, and www.packing.org.

Federal law does not mandate that states establish certain eligibility

criteria for issuing concealed carry permits. As such, state laws generally

define the eligibility criteria that individuals must meet in order to obtain

and maintain a concealed carry permit. To better understand the

differences among states’ concealed carry laws, we visited six states. As

noted in table 8, four of the six states we visited—Florida, Michigan,

Texas, and Utah—were “shall-issue” permit states. The other two—

California and Massachusetts—were “may-issue” states. The following

sections provide a more detailed description of each state’s permit laws

and procedures for screening permit applicants, monitoring the eligibility

of permit applicants, and revoking permits if disqualifying offenses are

detected.
Appendix IV: Handgun Concealed Carry

Permits

Page 60 GAO-02-720 Closing Loopholes in NICS

In the six states we visited, the concealed carry permit programs were

administered either at the state level or by local officials, depending on the

state. Administrative procedures generally included permit application,

applicant screening, and permit issuance, as well as permit monitoring and

revocation. All the states we visited had formal procedures for performing

background checks of permit applicants before issuing concealed carry

permits. However, the thoroughness and types of databases used during

background checks varied slightly. The states also had procedures in place

for revoking permits once officials became aware, through monitoring

efforts, that a permit holder had committed a disqualifying offense or

otherwise became ineligible to have a permit. However, once a permit was

revoked, only two of the states would ensure that permit holders returned

the permits to the revoking authority by seizing the permits. Also, only one

of the states provided for any enforcement penalties for failure to

surrender a revoked permit.

Each of the states we visited requires applicants to fill out a form with

background information and previous criminal history, if any. In addition

to the information presented by the applicant, each state performs

independent background screening using a variety of federal and state

criminal and noncriminal information sources. To determine eligibility to

obtain a concealed carry permit, each state screened applicants based on

various disqualifiers outlined in federal and state law. In addition to the

federal firearms disqualifiers, such as prohibitions against convicted felons

and illegal aliens, the concealed carry laws in these states identified

additional disqualifiers—such as certain violent or firearms-related

misdemeanors (California and Michigan), driving under the influence

(Michigan), or the inability to demonstrate competency with a firearm in

an approved safety course (all states visited).1

As shown in table 9, in screening permit applicants for eligibility, the

permit-issuing entity in each state is to consult both federal and state

sources of criminal justice data. In all the selected states except Florida,

the issuing entity is either a state or local law enforcement agency;

Florida’s Department of State issues the permits, while the background

screening is performed by Florida’s Department of Law Enforcement. In

 1

The screening disqualifiers also may provide grounds to revoke a permit once it has been

issued. Additional examples of state permit disqualifiers are discussed below in the section

on revoking permits.

Screening,

Monitoring, and

Revocation

Procedures for

Concealed Carry

Permits among

Selected States

Screening Permit

Applicants
Appendix IV: Handgun Concealed Carry

Permits

Page 61 GAO-02-720 Closing Loopholes in NICS

addition to name-based searches using both federal and state information

sources, the states’ screening procedures also include fingerprint-based

checks performed by the state and the FBI.

Table 9: Methods Used by Selected States to Screen Persons Applying for Concealed Carry Permits

Information sources used for background screenings

State and type

of permit

Issuing

entity

Nationwide

databases

State criminal

databases

Other state

records

Local

records

Screening

process time

limits

California

(may-issue)

County sheriffs and

police departments

• • • 90 days

Florida

(shall-issue)

Department of State

Division of Licensing

• • • 90 days

Massachusetts

(may-issue)

Police departments • • • 40 days

Michigan

(shall-issue)

County

gun boards

• • • • 30 days

Texas

(shall-issue)

Department of Public

Safety

• • • 60 daysa

Utah

(shall-issue)

Department of Public

Safety

• • • 60 days

a

This period can be extended to 180 days for good cause. If no decision is reached within 30 days of

the 180-day limit, the application is effectively denied.

Source: GAO’s analysis of state documents and discussions with state officials.

Specifically, with regard to nationwide sources of criminal and other

disqualifying data, each state screens permit applicants against the three

databases that make up the NICS system—the Interstate Identification

Index, the National Crime Information Center, and the NICS Index. In

addition, each state we visited queried its own state criminal history

repository in reviewing permit applicants. The states also maintained other

information sources that they consulted during the screening process. For

example, all the states we visited reviewed records of fugitive warrants. In

addition, most states reviewed listings of protection orders and mental

health records. Also, some of the states consulted information sources

unique to their respective states when screening permit applicants.

California, for example, queried records on persons under supervisory

release (i.e., on probation or parole), and Utah reviewed driver’s license

records.

Only two of the six states we visited included a check of local records as a

routine portion of the permit-screening process. For instance, Texas law

enforcement officials examine records kept at the local (county) level as a

routine part of the concealed carry permit background investigation. A
Appendix IV: Handgun Concealed Carry

Permits

Page 62 GAO-02-720 Closing Loopholes in NICS

Texas Department of Public Safety officer is to physically visit the local

courthouse in the county where the applicant resides to examine local

records. Also, local officials in Michigan are to check local records for

pending charges and ongoing investigations, in addition to records in

previous counties of residence if the concealed carry permit applicant has

lived in the present county only a short period of time. The remaining

states generally seek details from local records only when an automated

records search reveals a possible problem with incomplete data—for

example, a potentially disqualifying arrest without a disposition.

Another example of a difference in background screening processes

concerns time limits. All the states we visited have some time limitation

for the background check process specified in the state’s law. However,

Florida’s concealed carry permit law requires the state to issue the permit

after 90 days—even if the background check has not been completed—

unless the applicant is ineligible or has a potentially disqualifying arrest

without disposition information. According to Florida officials, this

situation could and does occur when the state does not receive fingerprint

results back from the FBI within the 90-day time limit. During fiscal year

2001, for example, 1,065 concealed carry permits were issued without a

completed background check. In these situations, if the permit holders are

later determined to be ineligible, the state must take action to revoke the

permits—which occurred 461 times between 1987 and 2001. In the other

states we visited, officials could use discretion in deciding whether or not

to issue a permit when the background screening could not be completed

within the time frames established by the respective state’s concealed

carry law.

Once concealed carry permits are issued, the states are to monitor permit

holders to ensure continued eligibility and, if needed, revoke the permits

of persons who become ineligible. Five of the six states we visited had

formal mechanisms in place for detecting a disqualifying criminal offense

or other disqualifying factors committed by permit holders. As shown in

table 10, these mechanisms include computerized matching of names of

concealed carry permit holders against state criminal records (Utah and

Florida), manual notifications to the state’s permit authority by the courts

when a concealed carry permit holder is convicted of a criminal offense

(Michigan), and point-of-purchase verification of a permit’s validity (Utah).

Monitoring Permit Holders
Appendix IV: Handgun Concealed Carry

Permits

Page 63 GAO-02-720 Closing Loopholes in NICS

Table 10: Methods Used by Selected States to Monitor the Eligibility of Concealed Carry Permit Holders

Permit-monitoring methods

Automated

database checks

Formal reporting

of offensesa

Permit verification

before NICS-exempt

firearms purchase

Informal

monitoring

California • b

Florida •

Massachusetts •

Michigan • b

Texas •

Utah • •

a

Generally, on an informal basis, law enforcement officials in all six states can report offenses by

permit holders to other state or local officials. However, this column refers to a formal, structured

mechanism for reporting such offenses to the permit-issuing authority.

b

As mentioned previously, in California and Michigan, a concealed carry permit does not exempt the

permit holder from a NICS background check when purchasing firearms. Therefore, no verification of

the permit is necessary.

Source: GAO’s analysis of state documents and discussions with state officials.

With regard to automated database checks, two states—California and

Texas—have procedures to continually match permit holders’ names

against state criminal records. In Texas, for example, new criminal records

are automatically matched against existing state records (including the

database of permit holders) as they are added to the state criminal records

repository. In two other states—Florida and Utah—state criminal records

and other potentially disqualifying records are matched against the names

of active permit holders on a periodic basis. Florida, for example,

conducts periodic matches of permit holders against a variety of state

databases and records, including criminal histories (weekly), protection

orders and repeat violent offenders (daily), corrections records (monthly),

and motor vehicle records (monthly). Utah conducts a daily computer

check by matching records in the state criminal repository to the list of

permit holders to determine if any of them have been charged with or

convicted of a disqualifying offense. After Utah began daily matching in

February 2000, the number of permits identified for revocation increased

over 240 percent—from 75 revocations in 1999 to 256 revocations in 2000.

Rather than automated monitoring processes, Michigan depends on a

formal process of reporting offenses committed by concealed carry permit

holders. That is, when a permit holder is charged with an offense that

could potentially result in revocation of his or her permit, the applicable

prosecutor is to notify the county gun board that issued the individual’s

permit. Following prosecution, a court official is to notify the county gun
Appendix IV: Handgun Concealed Carry

Permits

Page 64 GAO-02-720 Closing Loopholes in NICS

board about the results, including information about any disqualifying

conviction.

Massachusetts, on the other hand, has no formal statewide mechanism for

monitoring concealed carry permit holders for continued eligibility.

Rather, monitoring is done on an ad hoc basis, such as when one local law

enforcement entity requests information on a suspicious permit holder

from another locality. Local permit-issuing authorities (police

departments) have informal agreements regarding the sharing of criminal

records on permit holders to help facilitate this process. Massachusetts

officials told us they expect to have an automated system in place in the

future to more closely monitor permit holders.

Among the states we visited, Utah uniquely monitors its concealed carry

permit holders at the time of purchase of a firearm. That is, before selling

firearms to a permit holder, a gun dealer is required to verify the validity of

the permit presented, in order to allow the purchase to proceed without a

NICS background check (ATF has determined that Utah permits qualify to

exempt the permit holders from a NICS background check when

purchasing firearms). In the other states we visited—Florida,

Massachusetts, and Texas—where ATF allows certain concealed carry

permits to be presented in lieu of a NICS check, the gun dealer performs

only a visual inspection of the permit. In Utah, the dealer is to visually

inspect the permit and call the state’s Bureau of Criminal Identification to

verify that the permit is still valid and has not been revoked. Florida and

Texas officials commented that, without this provision in their state laws,

an individual conceivably could present a revoked concealed carry permit

and purchase a firearm without a NICS check.

After detecting a disqualifying criminal offense or other disqualifying

factor, all six states have similar procedures in place for revoking a

concealed carry permit. In addition to criminal offenses, a revocation

could also be warranted if the individual had developed a noncriminal

prohibition against carrying a concealed firearm (e.g., diagnosed with a

mental illness or subject to a domestic violence restraining order). As

shown in table 11, firearms prohibitions in all the states we visited

included federal disqualifiers, such as felony convictions, along with

additional prohibitions put in place by the states.

Revoking Permits
Appendix IV: Handgun Concealed Carry

Permits

Page 65 GAO-02-720 Closing Loopholes in NICS

Table 11: Criteria Used by Selected States to Revoke Concealed Carry Permits

Firearms prohibitors leading to permit revocation

Revocation enforcement

mechanisms

 Federal

 prohibitors

 Violent

 crimes

 Misdemeanor

 crimesa

 Other

 prohibitorsb

Civil or

criminal

penalties

Permit

seizure

California • • •

Florida • • •

Massachusetts • • • • • •

Michigan • • •

Texas • • •

Utah • • •

a

These are misdemeanors other than domestic violence, which is one of the federal prohibitors.

b

These are other criminal or noncriminal activities not addressed under the federal prohibitors.

c

Massachusetts observes the federal prohibitors; however, state law is silent with regard to

renunciation of citizenship and dishonorable discharge as criteria for revocation.

Source: GAO’s analysis of state documents and discussions with state officials.

Regarding additional prohibitors, three of the six states visited revoke a

concealed carry permit for any violent offense—whether a felony or

misdemeanor. In addition, all six states identified certain misdemeanor

offenses that would result in revocation. Michigan, for example, designates

specific misdemeanors as revocable offenses upon conviction—including

driving under the influence, assault, child abuse, and various firearmsrelated offenses. Some of the states had other unique disqualifiers that

could lead to revocation for their permit holders. For example, in

Michigan, the concealed carry permit law generally provides that pending

felony charges in any state or federal jurisdiction can result in permit

suspension and revocation. Massachusetts is similar in that an arrest

warrant in any jurisdiction—whether in state or out of state—will result in

permit revocation.2

 Texas also revokes permits for certain noncriminal

activities—such as delinquency on taxes, student loans, or child support.

Of the six states we visited, only Massachusetts had laws establishing any

civil or criminal penalties if an individual failed to return a revoked permit

to state authorities. If a person fails to return his or her revoked permit, as

required by Massachusetts state law, the state may charge the individual

 2

In contrast, to be considered a fugitive under federal firearms law—and thus prohibited

from purchasing or possessing firearms—an individual must have fled the jurisdiction (i.e.,

the state).
Appendix IV: Handgun Concealed Carry

Permits

Page 66 GAO-02-720 Closing Loopholes in NICS

with a misdemeanor offense punishable by a fine of up to $1,000 or a jail

term of up to 2-1⁄2 years. Massachusetts was also one of only two states

(California was the other) where we found that local permit-issuing

authorities would actively seek out and seize permits once they had been

revoked. Massachusetts law generally requires that revoked permits be

surrendered to the permit-issuing agency and, if not surrendered, the

licensing authority is to take possession of the permit and the permit

holders may be subject to civil or criminal penalties. In California,

although not a requirement in state law, local law enforcement officials

also told us that revoked permits are seized.

In contrast, state officials in Florida and Texas—two states with large

numbers of concealed carry permit holders—told us that they did not

actively seek out and recover revoked permits. Furthermore, neither state

has sanctions in place to force the return of revoked permits or otherwise

penalize permit holders who do not voluntarily surrender their revoked

permits. Data from Florida and Texas illustrate the extent to which

revoked permits are not surrendered.

• In fiscal year 2001, Florida issued over 25,000 concealed carry permits.

Due to the 90-day limit on application processing mandated by state

law, 1,065 of these permits were issued before the background check

was completed. State officials later found that 18 of these persons were

ineligible to have a concealed carry permit and these permits were then

revoked. However, state officials told us that 7 of these persons did not

voluntarily surrender their revoked permits.

• Although Texas officials did not have specific data, they estimated that

about 20 percent of all revoked permits are not recovered by the state.

Based on the total number of revocations (1,659) in Texas between

January 1996 and October 2001, this would represent an estimated total

of about 332 revoked permits that were not recovered.
Appendix V: Domestic Violence Misdemeanor

Convictions

Page 67 GAO-02-720 Closing Loopholes in NICS

Among the federal firearms prohibitors, identifying domestic violence

misdemeanor convictions for purposes of firearms background checks

presents a unique challenge. Although the law establishing this prohibitor

was retroactive, domestic violence offenses have historically been

categorized as assaults, making it difficult to isolate domestic violence

misdemeanors from other nondisqualifying misdemeanors. In particular,

the complex federal definition of domestic violence misdemeanor requires

information about court proceedings that may not be immediately

available in automated criminal history records. Thus, additional manual

research may be necessary to determine whether a misdemeanor offense

constitutes a federal firearms prohibitor.

This appendix (1) provides details about the complex federal definition of

domestic violence misdemeanor; (2) presents national overview

information about the laws and procedures states have developed

regarding domestic violence offenses; and (3) summarizes specific laws

and procedures used in the six states we reviewed—California, Florida,

Massachusetts, Michigan, Texas, and Utah.

In September 1996, as part of the 1997 Omnibus Consolidated

Appropriations Act, Congress banned the possession of firearms by

individuals convicted of a misdemeanor crime of domestic violence.1

 The

so-called Lautenberg Amendment amended the Gun Control Act of 1968 to

make it unlawful for any person convicted of a misdemeanor crime of

domestic violence to possess or receive firearms. As defined in the law, a

misdemeanor crime of domestic violence is an offense that is a

misdemeanor under federal or state law and has, as an element, the use or

attempted use of physical force or the threatened use of a deadly weapon,

committed by (1) a current or former spouse, parent, or guardian of the

victim; (2) a person with whom the victim shares a child in common; (3) a

person who is cohabiting with or has cohabited with the victim as a

spouse, parent, or guardian; or (4) a person similarly situated to a spouse,

parent, or guardian of the victim.

In addition to the detailed definitional criteria and elements of the offense,

the Lautenberg Amendment also prescribed a series of more complex

exceptions to the firearms prohibition. Under these exceptions, a person is

 1

Section 658 of Public Law 104-208 (1996).

Appendix V: Domestic Violence Misdemeanor

Convictions

Complex Federal

Definition of

Domestic Violence
Appendix V: Domestic Violence Misdemeanor

Convictions

Page 68 GAO-02-720 Closing Loopholes in NICS

not considered to be convicted of a domestic violence misdemeanor under

any of the following circumstances:

• The person was not represented at trial by counsel (unless he or she

waived the right to counsel).

• The person was entitled to a jury trial but the case was not tried by jury

(unless he or she waived the right to a jury trial).

• The conviction was expunged or set-aside, or the person was pardoned

or had his or her civil rights restored (if the law of the applicable

jurisdiction provides for the loss of civil rights under such an offense)

and the person is not otherwise prohibited from possessing firearms or

ammunition.

Federal firearms regulations provide that the definition of domestic

violence includes any misdemeanor that meets the criteria, regardless of

whether the applicable state statute or local ordinance does or does not

define the offense as “domestic violence.” For example, a person

convicted of misdemeanor assault against his or her spouse would be

prohibited from receiving or possessing firearms under the law. Also, the

firearms prohibition applies to any disqualifying misdemeanor, regardless

of the court of record (federal, state, or local) where the conviction

occurred. In practice, most criminal history records are generated by the

states, not the federal government. As such, with respect to domestic

violence misdemeanors, the determination of a person’s eligibility to

purchase firearms is based largely on review of state criminal history

records and related documents.

As BJS stated in its February 2000 report on improving criminal history

records,2

 identifying domestic violence misdemeanor convictions for

purposes of a firearms background check presents a unique challenge.

Although the law establishing this prohibiting category was retroactive,

domestic violence incidents have historically been categorized simply as

assaults, making it difficult to isolate them from other criminal history

records. In addition, where additional research is necessary, information

about misdemeanors may be more difficult to track down than felonies. In

its recent report on the use and management of criminal history records,3

 2

Department of Justice, BJS, Continuing Criminal History Records Improvement

Evaluation: Final 1994-1998 Report, NCJ-179768 (Washington, D.C.: Feb. 2000).

3

Department of Justice, BJS, Use and Management of Criminal History Record

Information: A Comprehensive Report, 2001 Update, NCJ-187670 (Washington, D.C.: Dec.

2001).
Appendix V: Domestic Violence Misdemeanor

Convictions

Page 69 GAO-02-720 Closing Loopholes in NICS

BJS noted that most state criminal repositories collect information only

about the most serious classes of misdemeanor offenses. Moreover, BJS

noted that the general lack of comprehensive misdemeanor arrest and

disposition data has already been identified as one of the major

deficiencies in state criminal history record systems. FBI NICS officials

confirmed that researching domestic violence misdemeanor convictions

can be laborious. It often involves manual research going back to the

original court records—and in some cases to arresting agency reports—to

verify what happened and who was involved, in order to determine

whether the offense constitutes a federal firearms prohibitor.

In general, domestic violence misdemeanor conviction records are

maintained, along with all other types of criminal records, in state criminal

history repositories. Some states have developed specific systems or

procedures for identifying and collecting data on domestic violence

offenders, with the effect of making such records more easily identifiable

for law enforcement and for other purposes.

In a July 1996 report to Congress,4

 the National Institute of Justice

reported that many states were collecting data (or implementing systems

to collect data) on domestic and sexual violence offenses. According to

state survey results, 35 of 47 responding states and territories collected

domestic violence statistics annually; however, there was wide variation

among states with regard to what information was collected and how it

was gathered—reflecting the differences in how states approached these

issues and their existing structures for collecting general crime data. For

example, some states enacted specific domestic or family violence statutes

that clearly defined this as an offense; some states had not designated

domestic violence as a separate offense but had instituted reporting

systems for cases that could be characterized as such; in states with an

incident-based crime reporting system, some had derived domestic

violence crime statistics from the existing system; and in states lacking

incident-based capability, some had created domestic violence reporting

systems.

 4

Department of Justice, National Institute of Justice, Domestic and Sexual Violence Data

Collection: A Report to Congress under the Violence Against Women Act, NCJ-161405

(Washington, D.C.: July 1996).

National Overview of

Efforts to Identify

Domestic Violence

Offenders

National Institute of

Justice
Appendix V: Domestic Violence Misdemeanor

Convictions

Page 70 GAO-02-720 Closing Loopholes in NICS

An October 1999 update to the 1996 report5 on domestic and sexual

violence expanded on the original findings. With respect to law

enforcement databases—which collect data on offenses reported to or

arrests by local law enforcement agencies—34 states reported having

some type of law enforcement data collection system for domestic

violence. In discussing the key components of law enforcement databases,

the report stated that domestic violence offenses in these systems can be

identified through a number of methods—including relationship and

offense codes, flags, specific offense codes, and specific crime statutes.

For example, “flags”—typically a special line entry or box that is

checked—clearly designate an offense in the state’s criminal history

records as domestic violence, thus making these offenses easier to identify

for law enforcement purposes. Recognizing the advantages of these

systems, the report recommended, among other things, that states should

implement incident-based reporting systems that use nationally

compatible offense and relationship codes.

In October 2000, the Institute for Law and Justice—under a grant from the

National Institute of Justice—reported on state domestic violence laws

from a law enforcement perspective.6

 The report noted that criminal code

provisions for addressing domestic violence include both traditional

common law offenses—such as assault and battery—as well as provisions

that specifically criminalize domestic violence and related offenses.

Specifically, 37 states had enacted domestic battery laws to complement

common law assault and battery laws. These offenses can be classified as

misdemeanors or felonies, depending on the circumstances. According to

the report, the primary purpose of these laws is to provide enhanced

penalties, especially for repeat offenses. However, the laws also provide a

basis to more clearly identify domestic violence-related offenses within a

state’s criminal history records.

The report concluded that the states had adopted widely variant statutory

models for addressing domestic violence and that state legislation making

domestic violence a crime was “largely a hodge-podge of differing

provisions.” To address these issues, the report identified certain model

 5

Justice Research and Statistics Association, Domestic Violence and Sexual Assault Data

Collection Systems in the States (Washington, D.C.: Oct. 1999).

6

Institute for Law and Justice, A Review of State Domestic Violence-Related Legislation: A

Law Enforcement and Prosecution Perspective (Alexandria, Va.: Oct. 31, 2000).

Institute for Law and

Justice
Appendix V: Domestic Violence Misdemeanor

Convictions

Page 71 GAO-02-720 Closing Loopholes in NICS

legislative guidelines that states could follow in revamping their domestic

violence laws. With respect to criminal law provisions, these guidelines

included, among other things, the establishment of specific state domestic

violence assault and battery offenses.

In April 2002, BJS issued its latest in a series of surveys of state

procedures for firearms sales.7 Among other things, BJS surveyed the

states to determine what automated or manual databases maintained by

state agencies were normally available to checking agencies during the

course of firearms background checks. As of June 2001, BJS found that all

50 states had established criminal history databases containing—at a

minimum—felony arrests and convictions and, in some cases, dispositions

and other data on domestic violence and other misdemeanors. In addition

to these general criminal history databases, BJS further reported that 33 of

the states surveyed had misdemeanor conviction databases that could also

be accessed during firearms background checks. However, the report did

not indicate whether these databases were automated or manual, nor the

extent to which they included domestic violence convictions.

In the six states we visited, we looked for various approaches used by the

states that could make it easier to identify domestic violence convictions

in state criminal history records for purposes of NICS background checks.

As shown in table 12, these approaches included establishing a specific

domestic violence criminal offense, defining domestic violence as an

element of certain general criminal offenses, enacting penalty

enhancement statutes for domestic violence offenses, and flagging

domestic violence offenses in the criminal history records.

 7

Department of Justice, BJS, Survey of State Procedures Related to Firearms Sales,

Midyear 2001, NCJ-192065 (Washington, D.C.: Apr. 2002).

Bureau of Justice Statistics

Differences in

Domestic Violence

Laws and Procedures

in Selected States
Appendix V: Domestic Violence Misdemeanor

Convictions

Page 72 GAO-02-720 Closing Loopholes in NICS

Table 12: Selected State Laws and Procedures for Identifying Domestic Violence

Offenders in Criminal Records

Specific

criminal

offense

Definition

statute

Penaltyenhancement

statute

Flagged in

criminal history

records

California • •

Florida • •

Massachusetts

Michigan • • •

Texas •

Utah a • • •

a

Utah has enacted a domestic violence criminal offense, but the statute covers only domestic violence

committed in the presence of a child.

Source: GAO’s analysis of state statutes, agency documents, and discussions with state officials.

As table 12 shows, two of the six states we visited—California and

Michigan—have specific statutes that make domestic violence a criminal

offense. In California, the state penal code has a separate citation for

misdemeanor battery, when the violence involves a spouse or other similar

relationship (Sec. 243e). In addition, the state penal code contains another

statute that makes certain offenders—that is, persons who willfully inflict

a traumatic injury on their spouse, former spouse, cohabitant, former

cohabitant, or the mother or father of their child—guilty of a felony (Sec.

273.5). When a person is convicted of domestic violence under these

statutes, California law enforcement personnel are to enter the

appropriate citation in the criminal history record, thus making the

offenses clearly identifiable as domestic violence for NICS background

check purposes. Similarly, in Michigan, the state penal code statute for

assault and battery includes a separate provision for domestic violence

misdemeanor when the assault involves a family member or other close

relationship (Sec. 750.81(2)).

Two states—Florida and Utah—define domestic violence in noncriminal

statutes, rather than within the context of a specific domestic violence

criminal offense. For example, Florida’s statutes on domestic

relations define domestic violence to mean offenses such as assault,

battery, false imprisonment, or any criminal offense resulting in physical

injury or death of one family or household member by another who is or

was residing in the same home (Sec. 741.28). Florida also requires a

minimum level of punishment when any of the specified domestic

violence-related offenses are committed. Similarly, Utah’s code of criminal

procedure contains the Cohabitant Abuse and Procedures Act, which
Appendix V: Domestic Violence Misdemeanor

Convictions

Page 73 GAO-02-720 Closing Loopholes in NICS

includes a definition of domestic violence (Sec. 77-36-1). Within this

definitional statute, certain crimes are identified—such as assault and

harassment—which, if they involve one cohabitant assaulting another, are

considered to be domestic violence offenses. In both states, however, the

offenses themselves are still charged under general criminal statutes and,

thus, they may not be easily identified in the criminal records during the

course of a NICS background check.

Four states—California, Michigan, Texas, and Utah—have penaltyenhancement statutes that provide for additional punishment when

convicted domestic violence offenders are subsequently convicted of

another domestic violence offense. For example, under the Michigan

domestic violence statute, a convicted first-time offender is guilty of a

misdemeanor punishable by up to 93 days in prison, making this a less

serious misdemeanor. However, second-time offenders are guilty of a

misdemeanor punishable by up to 1 year in prison (Sec. 750.81(3)), and

third-time offenders are guilty of a felony punishable by up to 2 years in

prison (Sec. 750.81(4)). These enhancements increase the penalty for the

domestic violence offense, but also—because they are considered more

serious than first-time offenses—make them subject to more stringent

reporting procedures to the state’s criminal history repository. Texas, has

a penalty-enhancement statute for familial assault (Sec. 22.01(b)), which is

a separate citation under the state’s penal code for general assault. A

misdemeanor offense normally charged under the assault statute is

enhanced to a felony if the defendant has previously been convicted of an

assault involving the offender’s spouse or other member of the household.

While felony enhancements would be easily identifiable in the criminal

records as disqualifying offenses during a NICS background check, firsttime misdemeanor offenders charged under the general assault statute

may not be as easily identified, since this part of the statute includes not

only domestic assaults, but other types of assaults as well.

Finally, three of the six states—Florida, Michigan, and Utah—identify

domestic violence offenses in their criminal history database by using an

automated flag. According to Florida officials, 2 years ago the Florida

Department of Law Enforcement implemented an automated fingerprint

system that allows users to check a “yes/no” box when submitting a

domestic violence offense to the state’s criminal history repository. In

addition, this system provides a narrative field that allows users to enter

details of the domestic violence incident. The “yes/no” box and narrative
Appendix V: Domestic Violence Misdemeanor

Convictions

Page 74 GAO-02-720 Closing Loopholes in NICS

field allow anyone conducting a NICS background check to quickly see

from the criminal history record if the person has a domestic violence

offense on his or her record.8 In Michigan, any time the offense code for a

domestic violence offense is entered into the criminal history record, the

system automatically places a flag in the record indicating that it is a

disqualifying domestic violence offense.

One of the states we visited—Massachusetts—has no specific domestic

violence criminal offense statute, nor other mechanism for easily

identifying domestic violence offenses in the state’s criminal history

records. In February 2002, the state amended its criminal statutes (Chap.

265, Sec. 13A) in order to create two new types of offenses—assault or

battery against pregnant women and assault or battery in violation of

certain protective orders. Although both provisions could be used to

prosecute domestic violence-related offenses, the former provision could

also be used to prosecute an assault where there is no family or household

relationship involved. Also, this provision does not define or include any

reference to the offender-victim relationship as a required element of the

offense. As such, a conviction under the new statute, in and of itself,

would not always be an indicator that the offense is domestic violencerelated.

 8

Historically, flags have been used to mark persons that have a felony conviction in their

criminal record, thus making felony firearms disqualifiers more easily identifiable by law

enforcement officials.
Appendix VI: Comments from the Department

of Justice

Page 75 GAO-02-720 Closing Loopholes in NICS

Appendix VI: Comments from the

Department of Justice
Appendix VI: Comments from the Department

of Justice

Page 76 GAO-02-720 Closing Loopholes in NICS
Appendix VI: Comments from the Department

of Justice

Page 77 GAO-02-720 Closing Loopholes in NICS
Appendix VI: Comments from the Department

of Justice

Page 78 GAO-02-720 Closing Loopholes in NICS
Appendix VI: Comments from the Department

of Justice

Page 79 GAO-02-720 Closing Loopholes in NICS
Appendix VII: Comments from the Bureau of

Alcohol, Tobacco and Firearms

Page 80 GAO-02-720 Closing Loopholes in NICS

Appendix VII: Comments from the Bureau of

Alcohol, Tobacco and Firearms
Appendix VII: Comments from the Bureau of

Alcohol, Tobacco and Firearms

Page 81 GAO-02-720 Closing Loopholes in NICS
Appendix VII: Comments from the Bureau of

Alcohol, Tobacco and Firearms

Page 82 GAO-02-720 Closing Loopholes in NICS
Appendix VIII: GAO Contacts and Staff

Acknowledgments

Page 83 GAO-02-720 Closing Loopholes in NICS

Laurie E. Ekstrand, (202) 512-8777

Danny R. Burton, (214) 777-5600

In addition to the above, David Alexander, Philip Caramia, Marco Gomez,

Barbara Guffy, Geoffrey Hamilton, Michael Harmond, William McDaniel,

and Ellen Wolfe made key contributions to this report.

Appendix VIII: GAO Contacts and Staff

Acknowledgments

GAO Contacts

Acknowledgments

(440059)

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