GUN CONTROL

Options For

Improving the

National Instant

Criminal Background

Check System

United States General Accounting Office

GAO Report to Congressional Requesters

April 2000

GAO/GGD-00-56

United States General Accounting Office General Government Division

Washington, D.C. 20548

Page 1 GAO/GGD-00-56 Gun Control: Options for Improving NICS

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April 12, 2000

The Honorable Charles E. Schumer

Ranking Minority Member

Subcommittee on Criminal Justice Oversight

Committee on the Judiciary

United States Senate

The Honorable Richard J. Durbin

United States Senate

This report responds to your request for information about the

effectiveness of the Brady Act’s phase I (interim Brady) and phase II

(permanent Brady) provisions in preventing the sale of firearms to

prohibited individuals.1

 Under interim Brady—which went into effect

February 28, 1994, and applied to handguns only—background checks

generally were to be conducted by the chief law enforcement officer

(CLEO) in the purchaser’s residence community. During phase I, handguns

were not to be transferred for 5 business days (a waiting period) unless the

dealer received an approval from the applicable state or local CLEO before

that time.

Under permanent Brady—effective November 30, 1998, and applicable to

all firearms, both handguns and long guns (e.g., rifles and shotguns)—

background checks generally are to be conducted using a computerized

system, the National Instant Criminal Background Check System (NICS),

which is managed by the Federal Bureau of Investigation (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. However, if the background check is not completed within 3

business days, the sale is allowed to proceed by default (a “default

proceed”).

 

1

The Brady Handgun Violence Prevention Act (Brady Act), Public Law 103-159, amended the Gun

Control Act of 1968 (P.L. 90-618). Under federal law, persons are prohibited from receiving a firearm if

they (1) have been convicted of, or are under indictment for, a felony; (2) are a fugitive from justice; (3)

are unlawful drug users or addicts; (4) have been involuntarily committed to a mental institution or

judged mentally incompetent; (5) are aliens, such as those illegally or unlawfully in the United States,

or certain 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. These prohibited categories are also

commonly referred to as “Brady disqualifiers.”
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As agreed with you, our work addressed the following questions:

• Regarding access to databases or other information sources for conducting

background checks to identify individuals prohibited by law from receiving

firearms, how does permanent Brady compare with interim Brady? For

instance, under permanent Brady, does the FBI have access to the same

types of information that were available to state and local CLEOs under

interim Brady? If not, what steps are being taken to enhance access to

such information?

• Under permanent Brady, depending on the specific state, either the FBI or

a designated state law enforcement agency (e.g., the state police) uses

NICS to conduct background checks. What are the advantages and

disadvantages of NICS background checks being conducted by a

designated state agency versus such checks being conducted by the FBI?

• Under permanent Brady, to what extent have default proceeds resulted in

firearms being sold to prohibited individuals? To prevent or minimize such

transfers, what are the options that policymakers can consider?

Under both interim and permanent Brady, access to automated criminal

history records—the basis for most firearms purchase denials—has been

essentially the same. There are some differences, however, regarding the

nonfelony, noncriminal Brady disqualifiers. Under interim Brady, for

example, state or local CLEOs in some jurisdictions accessed information

on some of the disqualifiers (such as mental health records and court

restraining orders) that may not be available for background checks

conducted by the FBI under permanent Brady. However, under permanent

Brady, the NICS Index database now provides automated access to some

information on the nonfelony, noncriminal Brady disqualifiers that was not

centrally available under interim Brady—that is, information about

persons who have been unlawful drug users or addicts, who have been

adjudicated or involuntarily committed as mentally defective, who are

illegal or unlawful aliens, who have been dishonorably discharged from the

military, or who have renounced their U.S. citizenship. Although the NICS

Index expanded the amount of disqualifying information centrally

available for firearms background checks, the database does not contain

all relevant records, most notably federal and state records on unlawful

drug users and mental defectives. The FBI has a process for contacting

federal agencies and states to determine the extent to which disqualifying

records are available for incorporation into the NICS Index. FBI officials

characterized this as a continuous and cooperative effort, especially given

that the FBI cannot compel the submission of state records.

Results in Brief
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Under permanent Brady, state agencies generally are better positioned

than the FBI to conduct background checks. For example, we found that

state agencies have access to all of the information available to the FBI

through NICS, plus some states also have additional information available

only to their respective state. In addition, state agencies may be better able

to interpret their own state firearms purchase and possession laws,

resulting in a more efficient and effective background check process. This

can be particularly important due to the complex nature of firearms laws,

which vary from state to state. The FBI agreed that state agencies

generally are better positioned to conduct NICS background checks and

favors expanding the number of state participants in NICS. However,

several factors may prevent such an increase, including (1) the cost to the

states for staffing and operating a background check unit and (2) the

states’ willingness or ability to participate.

Default proceed transactions involving prohibited persons who purchased

firearms totaled 2,519 during the first 10 months of permanent Brady.

These transactions involved the transfer of firearms to persons who the

FBI later determined to be prohibited from receiving firearms. Such

transactions increased public safety concerns, placed demands on law

enforcement resources—particularly the Bureau of Alcohol, Tobacco and

Firearms (ATF)—in retrieving the firearms, and exposed law enforcement

agents to potential risk associated with such retrievals. According to FBI

officials, these default proceeds occurred primarily because many states’

automated criminal history records did not show the dispositions (e.g.,

acquittals or convictions) of felony arrests, and efforts to obtain such

information took longer than 3 business days. FBI data for these transfers

indicated that an average of 25 business days elapsed between the initial

NICS inquiry and the date the FBI initiated retrieval of the firearms.

To minimize the number of default proceed transactions involving

prohibited persons, Congress could consider adopting one or more

options. One option is to continue a program established under interim

Brady that provides criminal justice grants to states to improve the quality

and completeness of automated criminal history records. Recognizing that

state agencies generally are better positioned than the FBI to conduct

NICS background checks, another option is to provide financial incentives

to states in order to increase the number of states that participate in NICS.

Finally, another option would be to amend the 3 business-day default

proceed requirement of the Brady Act to treat differently those potential

purchasers who had been arrested for disqualifying offenses and

disposition information concerning the arrest was not readily available.

The first two options could offer a positive, long-term impact on the
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overall efficiency and effectiveness of NICS and facilitate the identification

of prohibited persons. The third option could immediately reduce the

number of prohibited persons receiving firearms under NICS by providing

additional time to research incomplete criminal history records. FBI data

suggested that this option would affect a relatively small percentage of FBI

NICS transactions—about 88,000 (or 2 percent)—that currently take more

than 3 business days to resolve.

As noted previously, interim Brady background checks generally were to

be conducted by the CLEO (e.g., a chief of police or sheriff) in the

purchaser’s residence community to determine, on the basis of available

records, if the individual was legally prohibited from buying a handgun

under the provisions of federal, state, or local law. By the end of interim

Brady, over 5,000 CLEOs were conducting presale handgun background

checks. Most states (29) had multiple local CLEOs conducting checks. For

example, in Texas almost 1,000 local CLEOs were responsible for interim

Brady background checks. In the other 21 states, a single state agency—

typically a subdivision of the state police—was responsible for conducting

background checks. Virginia, for example, established an instant

background check system in 1989 (before interim Brady) operated by the

Virginia State Police, and the state continued to operate that system after

interim Brady went into effect.

Under permanent Brady, background checks are conducted by either the

FBI or a designated state agency (for those states willing to act as a NICS

liaison) using NICS to automatically query available federal, state, and

local records to determine a purchaser’s eligibility to own a firearm.2

 As of

October 1, 1999, 15 states had agreed to be full participants in NICS—that

is, to designate a state agency to conduct background checks on all

firearms purchases.3

 Another 11 states agreed to be partial participants by

conducting checks for handguns, while the FBI conducts checks for long

guns. In the remaining 24 nonparticipant states, the FBI conducts all NICS

firearms background checks.

In designing NICS, the FBI hoped that as many states as possible would be

full participants. Although there are only 15 full-participant states, they

 

2

 NICS background checks are to be performed in connection with firearms transfers and are not to be

limited to firearms sales (see 63 FR 58306). When we use the term “potential buyer” or “potential

purchaser,” we are also referring to other potential firearms recipients, such as individuals redeeming

pawned firearms.

3

 In commenting on a draft of this report in March 2000, Justice officials noted that in some fullparticipant states the background checks continue to be carried out by local law enforcement officers;

that is, the checks are carried out by the agencies that were previously CLEOs under interim Brady.

Background
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include some of the most populous states, such as California, Florida,

Illinois, New Jersey, Pennsylvania, and Virginia. According to FBI data for

the first year of NICS operations (Nov. 30, 1998, through Nov. 30, 1999),

about one-half of all NICS background checks were conducted by the

states.

During the first year of NICS operations, the FBI and designated state

agencies conducted about 8.8 million background checks using NICS.

About 66 percent of the checks involved long guns, about 32 percent

involved handguns, and about 1 percent involved dual transactions (both

long guns and handguns).4

 FBI data indicated that 2 percent (about 81,000)

of the FBI’s 4.4 million background checks resulted in denials.5

 That is, the

potential buyer was found to be disqualified under federal or state law

from receiving or possessing a firearm because, for example, criminal

history records showed a felony conviction. Moreover, for about 72

percent of firearm-purchase background checks conducted by the FBI,

NICS provided approval responses within 30 seconds after the purchaser’s

identifying information was input into the system. The remaining 28

percent of the background checks had delayed responses. From a sample

of delayed responses handled by NICS examiners, the FBI concluded that

about 80 percent were resolved within 2 hours or less and that the

remaining 20 percent required several hours or days to resolve.

More details on interim and permanent Brady and firearms background

check procedures are presented in appendix I. Also, we recently reported

on the implementation of permanent Brady.6

Under interim Brady, background checks focused on criminal history and

other records available through state repositories and two automated FBI

databases: (1) the National Crime Information Center (NCIC),7

 which is the

nation’s most extensive criminal justice information system and (2) the

Interstate Identification Index (III), which is an index-pointer system for

the interstate exchange of criminal history records. Under permanent

Brady, the NICS Index provides some centralized information on the

nonfelony and noncriminal categories that could not be easily checked

 

4

 Percentages do not add to 100 due to rounding.

5

 In commenting on a draft of this report in March 2000, Justice officials noted that the Bureau of

Justice Statistics eventually is to report on the number of denials resulting from background checks

conducted by state agencies.

6

 Gun Control: Implementation of the National Instant Criminal Background Check System

(GAO/GGD/AIMD-00-64, Feb. 29, 2000).

7

 NCIC 2000, an upgraded version of NCIC, became operational on July 11, 1999.

NICS Index Provides

Centralized Access

to More Data but

Has Not Reached Its

Full Potential
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under interim Brady. However, despite increasing the overall quantity of

information centrally available for firearms background checks, the NICS

Index does not contain all relevant records. The FBI has a process for

contacting federal agencies and states to identify and obtain available

records.

Under interim Brady, state and local CLEOs had centralized, automated

access to federal and state criminal history records and wanted-persons

files—the basis for most firearms purchase denials—through NCIC and III,

two criminal justice information systems that predated the Brady Act and

are now key components of NICS. In addition, many CLEOs also had

access to state or locally maintained data on some of the other Brady

disqualifying factors—e.g., mental illness, court restraining orders, and

domestic violence misdemeanors. Some CLEOs accessed local automated

databases (e.g., city or county criminal justice information databases) for

these data, but the data were not all available at the state level for

statewide dissemination. However, under interim Brady, state and local

CLEOs did not access specific data files or databases for other nonfelony,

noncriminal Brady disqualifiers—such as illegal or unlawful aliens,

dishonorable discharges, and citizenship renunciations.

Appendix II gives more details on data and databases that were available

under interim Brady.

FBI officials have stated that firearms background checks under

permanent Brady are more efficient than under interim Brady, because all

of Brady’s disqualifying categories can now be checked in a single,

computerized search using NICS. That is, NICS provides centralized access

to criminal history and other records (such as domestic violence

misdemeanors and restraining orders) through NCIC 2000 and III, while

providing simultaneous access to the nonfelony, noncriminal disqualifying

records contained in the NICS Index. However, as of November 30, 1999—

1 year after the implementation of NICS—the NICS Index database had

relatively few records for most of the categories. For example, as table 1

shows, the vast majority of records (about 90 percent) in the NICS Index

covered one category (illegal or unlawful aliens). These records were

provided by one federal agency, the Immigration and Naturalization

Service (INS).

The status of other categories in the NICS Index was as follows:

• Controlled Substance Abuse – A total of 97 records had been submitted by

3 states. According to the FBI, privacy interests may prohibit states from

No Central Database for

Nonfelony, Noncriminal

Disqualifiers Existed Under

Interim Brady

NICS Index Provides

Centralized Access to Data

but Does Not Include All

Disqualifying Records
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submitting records about unlawful users or persons addicted to drugs.

Justice officials also noted that, if this type of information were to be

available for other than firearms purchase background check purposes, it

could have a chilling effect on persons who otherwise might seek drug

treatment. For this reason, and because including certain records posed

concerns about unreasonable search and seizure, in February 1998,

Attorney General Reno made a decision not to acquire federal agency drugtesting and drug-treatment information for inclusion in the NICS Index.

• Mental Defectives – A total of 41 records had been submitted by 6 states.

The FBI received about 89,000 federal records from the Department of

Veterans Affairs (VA) on November 1, 1999.

• Dishonorable Discharges – About 6,300 federal records had been

submitted by the Department of Defense (DOD) and the U.S. Coast Guard.

These records covered only the period since the Vietnam War. Also, some

U.S. Navy records were yet to be entered, pending efforts to make the

records compatible with NICS Index requirements. FBI officials told us

that each dishonorable discharge record submitted for inclusion in the

NICS Index was first validated by DOD to ensure that the dishonorable

discharge had not been subsequently overturned by court action. Also, the

FBI officials noted that records on dishonorable discharges before 1973

were not available at DOD in an official, electronic database.

• Citizenship Renunciants – A total of 626 records had been submitted by the

State Department. According to FBI officials, the remaining records on

renunciants have had to be identified by the State Department on a caseby-case basis and have had to be converted to a format that can be

accepted by the NICS Index. In this regard, in January 2000, FBI officials

told us that the State Department has identified approximately 11,000

additional records of renunciants and was in the process of creating an

input file for NICS.

• Denied Persons – Almost 11,000 records had been submitted by 8 states.

Provided by state law enforcement agencies, these records contain the

names of persons who have been denied the purchase of a firearm in

accordance with federal law and for whom disqualifying data are not

contained in any other file accessed by NICS.
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Category

Federal

records

State

records

Total active

records

Percent of NICS

Index total

Controlled

substance abuse 0 97a 97 <.01%

Mental

defectives 88,898 41b 88,939 8.6

Illegal/unlawful

aliens 927,874 3c 927,877 89.7

Dishonorable

discharges 6,303 0 6,303 0.6

Citizenship

renounced 626 0 626 0.1

Denied

persons 0 10,805d 10,805 1.0

Total 1,023,701 10,946 1,034,647 100%

a

Records were submitted by three states.

b

Records were submitted by six states.

c

Records were submitted by two states.

d

Records were submitted by eight states.

Source: FBI data.

As indicated above, the FBI has largely focused on entering federal records

into the NICS Index. As of November 30, 1999, the NICS Index contained

just over 1 million records. This total represents about a 10-percent

increase over the number of records the NICS Index contained when it

became operational 1 year earlier, on November 30, 1998. And, nearly all of

the increase involved records from one federal agency—VA. Few

disqualifying records have been obtained from the states during that time.

We recognize that not all existing records can or will be included in the

NICS Index, even though these records could be useful in identifying

persons attempting to purchase firearms who are disqualified by law from

doing so. For example, according to FBI officials, some state and local

agencies may be prohibited by state law from sharing substance abuse or

mental health records with others. Some states have also expressed

concern about whether the records would ever be used for other purposes,

such as background checks for employment or professional licensing.

Similarly, in February 2000, the Bureau of Justice Statistics (BJS) reported8

that the identification of nonfelons ineligible to purchase firearms is likely

to remain problematic under NICS. BJS further reported that

dissemination of mental health and drug abuse information raises legal and

 

8

 U.S. Department of Justice, BJS, Continuing Criminal History Records Improvement Evaluation: Final

1994-98 Report (NCJ-179768), February 2000.

Table 1: Number and Category of

Records in the NICS Index (as of

November 30, 1999)
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ethical questions about the rights to privacy, and new enabling statutes

may be required to identify and access such information.

According to FBI officials, the identification of records that should be

included in the NICS Index requires ongoing cooperation among numerous

federal and state agencies. The officials commented that the FBI’s role in

this process is to ensure that all federal and state agencies have been

notified of (1) the availability of the NICS Index and the system interface

requirements and (2) the necessity to provide accurate and valid records

that can be supported in the event of an appeal. Initial outreach efforts

cited by FBI officials included the following:

• Soon after Congress passed the Brady Act, the FBI established the Brady

Act Task Group, composed of state and local law enforcement officials, to

develop functional requirements for NICS and the requirements for

records to be included in the NICS Index. Also, the FBI drafted the

Attorney General’s letter that was sent, on June 9, 1994, to federal

departments requesting that they identify the format and location of

relevant records. And, in October 1994, the FBI began a series of bilateral

meetings with applicable federal agencies.

• Since 1994, NICS Index data-entry requirements have been discussed at

periodic meetings of the Brady Act Task Group and other groups,

including the semiannual meetings of the Criminal Justice Information

Services Advisory Policy Board.

• In August 1997, the FBI hosted a “NICS National Technical Conference” for

representatives of every state. The conference presented briefings on the

specifications for the NICS Index, as well as the procedures for submitting

records.

• In June 1998, the FBI hosted a “NICS Participant Conference” for states

that serve as NICS points of contact. Again, the conference presented

information about the NICS Index.

• In August 1999, the FBI drafted a letter to applicable federal agencies

requesting additional data to be loaded into the NICS Index.

As of December 1999, FBI officials summarized their ongoing outreach

efforts as follows:

• The FBI is continuing to contact federal agencies to identify and obtain

any relevant federal records that can be incorporated into the NICS Index.

Approximately half of the agencies have responded so far; the remaining

agencies are being contacted by telephone.
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• For state records, the FBI has drafted a letter to be sent to all states

inquiring whether they possess any records to submit to the NICS Index.

That letter is still being reviewed internally.

• The FBI is also contacting the NICS points-of-contact in each state that

participates in NICS to further inquire about records that may be available

for submission to the NICS Index.

• Also, the FBI is preparing an FBI/state memorandum of understanding to

address the issue of how state records will be used in the NICS Index and

allow states to delete their records if NICS’ purpose is ever expanded

beyond firearms background checks.

According to FBI officials, once these outreach efforts are completed, the

FBI will decide the types of additional action that are needed to increase

the number of federal and state records in the NICS Index. However, the

officials noted that, since the FBI cannot compel state agencies to identify

records and submit them to the NICS Index, their outreach efforts must be

viewed as a continuous and cooperative process.

Under permanent Brady, states generally are better positioned than the

FBI to conduct firearms purchase background checks because some state

agencies (1) can access additional data and databases and (2) may be

better able to interpret their own state’s laws. The FBI agreed that states

have certain advantages in conducting NICS background checks and

would like for more states to be full participants in NICS. However,

funding and other reasons may present barriers to increased state

participation.

Under NICS, when the FBI or a state agency performs a firearm purchase

background check, disqualifying records are checked using NCIC 2000, III,

and the NICS Index. The FBI’s initial automated NICS check is limited to

records in these three databases.9

 However, some states have automated

access to additional databases or records available only within their state.

And in some cases, state law may prohibit sharing this information with

others—such as other states or the NICS Index. For example, Georgia,

Virginia, and Washington have databases that list individuals within their

state who have mental health disabilities or have been adjudicated

mentally incompetent. Virginia’s mental health database, however, is

available only to the Virginia State Police for firearms background check

purposes. Therefore, if the FBI conducted a firearms background check on

a Virginia resident (e.g., for an out-of-state long gun purchase), the NICS

 

9

 For delayed transactions that require research beyond the initial automated inquiry, the FBI also

accesses additional in-house automated databases.

Increased State

Participation Could

Improve NICS, but

Barriers Exist

State Agencies Can Access

NICS Databases Plus

Additional State Data
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check could not access information contained in Virginia’s mental health

database. According to Virginia State Police data for January through

September 1999, Virginia's instant check system denied 51 firearms

transactions based on information in the state's mental health database—

information that would not have been available to the FBI through NICS.10

Another example is the wanted-persons file in NCIC 2000. This national file

may not contain information on every state arrest warrant issued.

According to FBI officials, at one time NCIC would not accept an

outstanding warrant if the originating state would not agree to extradition

if the person was apprehended in another state. That restriction was lifted

prior to NICS implementation so that NCIC 2000 now accepts all state

warrants. However, each individual agency that issues warrants is

responsible for entering their warrants into NCIC 2000. Consequently,

there is no way to tell whether outstanding warrants have been issued by

state and local agencies but not entered into NCIC 2000. On the other

hand, most states can access information about wanted fugitives through

their own state databases. For example, Colorado and Virginia state

officials said that they can access their own outstanding warrants through

state or local databases, regardless of whether the warrant had been

entered into NCIC 2000.

Moreover, information regarding restraining orders is not always available

through NCIC 2000 because of incompatibilities between state records and

NCIC 2000 records requirements. However, state agencies that conduct

background checks would have access to state or local databases where

the restraining order information was originally recorded. In Colorado, for

example, the FBI recently approved the transfer of a firearm to an

individual who should have been prohibited from purchasing a firearm due

to an active restraining order. The information regarding the restraining

order was not available to the FBI through NCIC; but, according to state

officials, it would have been accessible to a Colorado law enforcement

agency. The prohibited individual purchased the firearm and used it to kill

three children.11 According to FBI officials, each individual agency that

issues restraining orders is responsible for entering them into NCIC 2000.

Consequently, there is no way to tell whether such orders have been issued

 

10 Once denied, however, Virginia could enter the names of these persons into the NICS Index’s “denied

persons” file, after which that information would be available to the FBI or any other state agency

when conducting a NICS background check.

11 Although currently a full-participant in NICS, at the time of this incident, Colorado had discontinued

its state-run instant check program—which had been in operation since 1994—due to financial

considerations. Following the publicity surrounding the incident, funding for the program was

reinstated by executive order, pending permanent authorization by the Colorado legislature.
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by state and local agencies but not entered into NCIC 2000. FBI officials

acknowledged that compatibility problems exist in some states and noted

that these states are working with NCIC 2000 officials to resolve the

problems.12

In its February 2000 report (as cited above) on criminal history records,

BJS reported that NICS background checks performed by states accessed

more complete state-level criminal records—as well as certain nonfelon

information—compared with NICS checks performed by the FBI. As a

result, in those states where the FBI performs NICS checks, BJS reported

that there were likely to be more firearms sales to ineligible purchasers

than in states where state agencies performed the checks.

FBI officials acknowledged that states can, in some instances, access

additional databases; however, they also noted that the usefulness of such

access may be limited with respect to long guns bought outside the

purchaser’s state of residence. The officials explained that:

• In most states, it is lawful to purchase a long gun without being a resident

of that state. Thus, an individual could cross state lines to buy a long gun,

even after that person had been denied the right to purchase a firearm in

his or her state of residence.

• Therefore, if a state possesses information showing a person is prohibited

from purchasing firearms, such information must be included in a national

system to be most effective. Otherwise, such information will serve to stop

only in-state purchases and will create a false sense of security.

Finally, as discussed in more detail below, we note that during the first

year of NICS implementation, the FBI estimates that it was unable to

resolve, within 21 days, about 75,000 background checks—roughly 1.7

percent of the 4.4 million checks that the FBI conducted. According to FBI

officials, these background checks could not be completed because

information on arrest dispositions could not be obtained to verify the

purchaser’s eligibility. The number of these “unresolved” background

checks perhaps would have been fewer if the checks had been conducted

by state law enforcement agencies—given that these agencies generally

have access to additional data and databases for background check

research purposes.

 12 In commenting on a draft of this report in March 2000, Justice officials also noted that a federal grant

program (the National Criminal History Improvement Program) specifically funds states to overcome

these technical obstacles and submit their records to the FBI’s national systems.
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Many states have enacted their own unique statutes regarding the sale and

possession of firearms—including requirements for firearms purchase

permits, mandatory waiting periods, and notification to state or local

authorities. These state laws can have complex provisions, particularly

regarding the restoration of an individual’s rights to possess a firearm,

once those rights have been revoked (e.g., because of criminal activity).

For example, according to ATF officials, persons convicted of a criminal

offense in Colorado have their federal firearms rights automatically

restored under the following conditions:

• A person convicted of a misdemeanor offense (including domestic

violence) who was convicted and completed his or her sentence.

• A person convicted of a violent felony offense who completed his or her

sentence prior to July 1, 1994, and at least 10 years had elapsed since

completion of the sentence.

• A person convicted of a nonviolent felony offense who completed his or

her sentence prior to July 1, 1994.13

As such, in performing firearms background checks, state agencies may be

better able to interpret their own state laws to determine a person’s

eligibility to purchase firearms. That is, state agencies generally have a

better understanding of how their own state laws apply to an individual’s

eligibility to purchase a firearm in their state.

The FBI agreed that state agencies may be better able than the FBI to

interpret their own applicable state laws. Also, this belief is consistent with

our analysis of appeals decisions regarding firearms-purchase denials

made by the FBI under NICS. For example, during the first year of NICS

operations:

• About 22 percent of the appeals (on which a final decision had been

reached as of November 30, 1999) were successful—that is, the denials

were reversed.

• About 42 percent of reversed denials (for which the reason for reversal

was available) occurred because FBI examiners had misinterpreted state

statutes or records in making the initial denials.

 

13 However, as of July 1, 1994, all convicted felons (violent or nonviolent) in Colorado became

permanently disqualified from possessing firearms under state law. Consequently, although felons

whose rights were completely restored prior to July 1, 1994, are not considered to be prohibited under

federal law, they would still be prohibited under state law.

State Agencies May Be

Better Able to Interpret

State Laws
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Page 14 GAO/GGD-00-56 Gun Control: Options for Improving NICS

Although the percentage of denials reversed for this reason was over 50

percent of all reversals in January and February of 1999, it declined to

about 30 percent in October and November of 1999.

To help improve interpretation of state laws, the FBI contacted the states

via mass mailing in June 1999 to request that the states validate their

firearms laws. Subsequently, the FBI made state law information widely

accessible electronically within the law enforcement community by

including such information in the Law Enforcement On-Line Internet site.14

Appendix III presents more information about variations in state firearms

purchase laws.

The FBI acknowledges that states may have certain advantages in

conducting NICS background checks, including access to additional data

in their own state and the ability to better interpret their own criminal

history records and firearms laws. Further, according to the FBI, the

functioning of NICS would be more effective and efficient if more or all

states were full participants (i.e., if each state had a designated agency for

conducting background checks). Despite the potential advantages of states

conducting background checks, any consideration of ways to encourage

states to be full participants in NICS would need to recognize the following

mitigating factors:

• States may have competing fiscal priorities that prevent them from

initiating or expanding their role in NICS. Because the FBI performs NICS

checks without charging a fee, some states may consider performing this

effort at the state level to be a waste of state resources. According to FBI

officials, one state—South Carolina—recently dropped out as a full

participant in NICS, and four other states may be at risk to drop out

because they are currently operating under executive order rather than

state statute. Federal funding proposals—including a NICS user fee and

direct appropriations—have been developed that could increase state

participation in NICS; however, these proposals have not been approved

by Congress.

• States that already conduct NICS background checks for handguns—such

as Maryland and Washington—may not want to expand their

responsibilities to long guns, which may be viewed as less of a public

 14 Law Enforcement On-Line is a secure law enforcement Internet site managed by the FBI, which

provides communication and information services to the federal, state, and local law enforcement

community.

Possible Barriers to State

Participation in NICS
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Page 15 GAO/GGD-00-56 Gun Control: Options for Improving NICS

safety risk than handguns. And, as noted above, the FBI is already

performing long-gun background checks in those states free of charge.

• Some states may be philosophically unwilling to participate in NICS, as

demonstrated by the various legal challenges to the local background

check requirements of interim Brady.15 Because NICS was also established

under the Brady Act, some states may consider NICS implementation to be

a federal government responsibility.

• States may encounter difficulties in conducting timely or complete

background checks for a variety of administrative reasons, including a lack

of resources or expertise. During early 1999, for example, the Maryland

State Police encountered difficulties in processing NICS background

checks in a timely manner, allowing a number of prohibited persons to

purchase handguns.

During the first 10 months of NICS implementation, 2,519 individuals who

were sold firearms were later determined by the FBI to be prohibited

persons. These default proceeds were the result of NICS background

checks that could not be completed by the FBI within the 3 business days

allowed by statute under permanent Brady. After 3 business days elapsed,

these transactions were considered default proceeds, and the gun dealers

were then legally able to transfer the firearms without an affirmative

response from the FBI as to the purchasers’ eligibility.16

Default proceeds that result in firearms being transferred to prohibited

persons are a cause for concern because they present public safety risks

and place resource demands on law enforcement agencies in retrieving the

firearms. According to FBI procedure, when a NICS examiner discovers

that a firearm has been transferred to a prohibited individual, the FBI is to

notify (1) the local police department, as determined by the purchaser’s

address and (2) ATF headquarters. In each one of these instances, ATF

guidance then requires that an investigation be initiated and attempted

retrieval of the firearm be coordinated with state or local law enforcement

to ensure public safety.

 

15 In Printz v. U.S. (521 U.S. 898), the Supreme Court ruled that the Brady Act’s interim (phase I)

provision commanding the CLEO of each local jurisdiction to conduct background checks was

unconstitutional in that it compelled state officers to execute federal law.

16 A small number of these—33—actually occurred within 3 business days. According to FBI officials,

for these delayed NICS transactions the gun dealer transferred the firearm to a prohibited person

before 3 business days had elapsed, without having received a proceed or deny response from NICS.

Default Proceed

Transactions Increase

Public Safety and

Other Concerns
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Page 16 GAO/GGD-00-56 Gun Control: Options for Improving NICS

According to FBI officials, default proceeds occur primarily due to lack of

arrest dispositions in automated state criminal history records. As a result,

for some delayed transactions, the FBI is unable to determine the

purchaser’s eligibility within the 3 days allowed by law under permanent

Brady. A typical example of a delayed NICS transaction involves a record

showing a felony-related arrest (not a Brady disqualifier) but no

information about whether the case was prosecuted and resulted in a

conviction (which would be a Brady disqualifier). In these instances,

additional research is needed before the transaction can be approved or

denied. FBI examiners typically must contact a state or local entity that

has the needed information—often a local court—to determine the

purchaser’s eligibility. The ability to obtain the required disposition

information in a timely manner depends on several factors, including

whether the court is open, the willingness of the court’s staff to assist the

FBI, and the availability and accessibility of the disposition information.

The problem of incomplete and/or inaccessible state criminal history

records is a long-standing criminal justice issue. Appendix IV gives more

details about this issue, including the relationship between background

checks and the quality of automated records.

As mentioned previously, during the first 10 months of permanent Brady

implementation—November 30, 1998, through September 30, 1999—2,519

individuals who were sold guns were later determined by the FBI to be

prohibited persons. FBI data on these 2,519 default proceeds show that an

average of 25 business days elapsed between the initial NICS inquiry and

the date that the FBI initiated retrieval of the firearms. As table 2 shows:

• 5 percent (118) of these transactions were resolved in 5 business days or

less, the amount of time previously allowed under interim Brady to

conduct a background check;

• 77 percent (1,937) of these transactions were resolved in 30 business days

or less; and

• 91 percent (2,288) of these transactions were resolved in 60 business days

or less.

FBI Attributes Default

Proceeds to Lack of Arrest

Dispositions in Automated

State Criminal History

Records

Three Business Days for

Research Have Been

Insufficient to Prevent

Default Proceed

Transactions
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Page 17 GAO/GGD-00-56 Gun Control: Options for Improving NICS

Time to retrieval

initiation

Total number of

transactions

Percent of

transactions

Cumulative

percent

Within 5 days 118 5% 5%

6 to 10 days 378 15 20

11 to 20 days 936 37 57

21 to 30 days 505 20 77

31 to 60 days 351 14 91

More than 60 days 192 8 99

Unknowna 39 2 100

Total 2,519 100% 100%

Note: Percentages do not add to 100 due to rounding.

a

For these transactions, the FBI data did not contain a valid NICS transaction date and retrieval

decision date.

Source: GAO analysis of FBI data.

Further, the actual number of default proceed transactions involving sales

of firearms to prohibited persons might be higher than the 2,519 already

identified by the FBI. For example, during the first year of NICS

implementation, the FBI estimates that it was unable to resolve, within 21

days, about 75,000 background checks—roughly 1.7 percent of the 4.4

million checks that the FBI conducted. According to FBI officials, these

delayed transactions could not be completed because the FBI was never

able to obtain information on arrest dispositions in order to verify the

purchaser’s eligibility. Because, as reported by the FBI, background

checks delayed more than 24 hours are more likely to involve prohibited

persons than other NICS checks, some of these 75,000 transactions

potentially represent firearms sold to prohibited persons.17 Given the

increased public safety concerns, the additional demands on law

enforcement—particularly ATF—and the exposure of law enforcement

agents to the risks associated with firearms retrievals, it is therefore

important to explore options for reducing the number of these

transactions.

As mentioned previously, in researching delayed NICS transactions, the

FBI often must rely on the cooperation of state and local agencies to

obtain information—such as the disposition of an arrest—needed to

determine a purchaser’s eligibility. To facilitate this process, the FBI has

requested that each state establish a contact point that will be responsible

for assisting the FBI (and other states) with obtaining disposition or other

 17 In commenting on a draft of this report in March 2000, Treasury officials noted that the status of

these default proceed transactions is unknown and could result in a substantial increase in ATF

enforcement obligations if these transactions are later determined to involve prohibited persons.

Table 2: Number of Business Days

Taken to Identify Default Proceed

Transactions Involving Prohibited

Purchasers (as of September 30, 1999)

Options for Improving

NICS and Reducing the

Number of Default

Proceed Transactions
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Page 18 GAO/GGD-00-56 Gun Control: Options for Improving NICS

relevant information. When the disposition of a potentially disqualifying

arrest is not directly accessible by computer, under FBI procedure, NICS

examiners are to notify the applicable state contact point by telephone,

fax, and/or law enforcement teletype. Additional notifications may also be

necessary to other state or local agencies, such as courts and arresting

agencies. Although the FBI identified a goal in its fiscal year 2000 budget

that all delayed transactions would be resolved within 15 minutes per

record (on average), the ability to obtain such disposition information in a

timely manner—even within 3 business days—is often beyond the FBI’s

control. Therefore, options to improve NICS and reduce the number of

default proceed transactions may need to focus on legislative, rather than

administrative, efforts.

One option for improving NICS and reducing or minimizing the number of

default proceed transactions is to continue funding to provide federal

grants to states for improving the quality and completeness of automated

criminal history records. Another possible option is to encourage

increased state participation in NICS by providing some form of federal

financial assistance. Finally, the 3 business-day default proceed

requirement of the Brady Act could be amended to treat differently those

potential purchasers with arrests for disqualifying offenses with no

disposition information. These options should be considered

complementary, rather than mutually exclusive.

Because, according to the FBI, most default proceeds occur due to a lack

of arrest dispositions in automated state criminal history records, one

option for reducing or minimizing these delayed transactions is to help

states upgrade the quality and completeness of these records. A relevant

federal effort ongoing since 1995 is the National Criminal History

Improvement Program (NCHIP), which provides grant funds to states.

Administered by the Bureau of Justice Statistics, NCHIP has provided

funding 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. Federal

obligations under NCHIP totaled about $293 million during fiscal years

1995 through 1999. Additionally, 5 percent of the funds awarded to states

each year under the Byrne Formula Grants Program are to be used for

improving criminal justice records.18

 

18 Crime Technology: Federal Assistance to State and Local Law Enforcement (GAO/GGD-99-101, June

7, 1999), pp. 29 and 31.

Federal Grant Funding to

Improve State Criminal

History Records
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Page 19 GAO/GGD-00-56 Gun Control: Options for Improving NICS

For fiscal year 1999, NCHIP guidelines called for improving NICS

background checks by (1) increasing states’ commitment to the

implementation of NICS, (2) increasing state participation in III, and (3)

supporting state court efforts to improve the completeness of criminal

history records. Regarding III, for example, the NCHIP announcement

stated that state participation in III is critical to ensuring that the most

accurate and complete criminal records are available instantly for NICS

firearms checks. Justice officials said that they plan to address NICS

implementation issues—such as automation and accessibility of records

on arrest dispositions—in future years by seeking increased funding

through NCHIP grants. For fiscal year 2000, $35 million was specifically

appropriated for NCHIP grants, and the President’s budget for fiscal year

2001 requests $70 million for NCHIP.

Because states can have advantages over the FBI in conducting NICS

background checks—including access to additional data in their own state

and the ability to better interpret their own criminal history records and

firearms laws—another option for improving NICS’ effectiveness and

reducing the number of default proceed transactions is to increase state

participation in NICS. The following are several approaches that could

encourage such participation:

• NICS User Fee. Establishing a NICS user fee could remove a disincentive

for states to be NICS participants. Currently, states have less incentive to

participate because the federal government performs the NICS check free

of charge. The FBI has previously introduced budget proposals to fund

NICS operations with a user fee. Congress, however, has acted to prohibit

a NICS user fee by including prohibiting language in the Department of

Justice’s fiscal year 1999 and 2000 appropriations acts.19

• Direct Appropriations. Through direct appropriations, states could be

funded to establish and/or operate NICS units. The U.S. Senate passed a

provision in its 1999 Juvenile Justice bill that would have authorized $40

million in direct appropriations to states that participate in NICS.20 The

House version of the bill differed markedly from the Senate version, so the

legislation was sent to conference to resolve the differences. However, the

1999 legislative session ended without any further action being taken.

 

19 Public Law 105-277 (Oct. 21, 1998) and Public Law 106-113 (Nov. 29, 1999), respectively.

20 Title VIII, section 861, S. 254, passed by the Senate on May 20, 1999.

Financial Incentives to

Encourage State

Participation in NICS
B-282742

Page 20 GAO/GGD-00-56 Gun Control: Options for Improving NICS

• Criminal Justice Grants. Although the Supreme Court has ruled that states

cannot be required or mandated to conduct Brady background checks, the

Court has recognized elsewhere that Congress, in general, may impose

reasonable conditions on the receipt of federal funds by states.21 Incentive

grants, perhaps associated with an existing criminal justice grant program,

could be offered to states that agree to become NICS participants. One

such example of an incentive grant is the Violent Crime Control and Law

Enforcement Act of 1994,22 which authorized federal incentive grants to

eligible states for building or expanding correctional facilities for violent

offenders, if the states implemented measures ensuring stricter sentences

for violent offenders. In addition to incentive grants, the NCHIP grant

program already authorizes funding for, among other things, states to

establish programs to participate in NICS. However, NCHIP grant

requirements currently preclude such funds from being used to cover any

ongoing operating costs of conducting the background checks.

Given the long-term nature of efforts to improve automated criminal

history records and the possibility that not all states would agree to

become NICS participants, another option involves amending the 3

business-day default proceed requirement of the Brady Act to treat

differently those potential purchasers who had been arrested for

disqualifying offenses and disposition information concerning the arrest

was not readily available. Washington state offers one approach that could

be considered. In Washington, which is a partial participant in NICS

(handguns only), state law allows up to 5 days to perform a background

check. However, if available records indicate the prospective purchaser

has an arrest for a potentially disqualifying offense, a hold for up to 30 days

can be placed on the transaction’s approval, pending receipt of disposition

information to verify the purchaser’s eligibility to possess a firearm. After

30 days, if the disposition of the arrest still cannot be verified, an extension

of the hold may be initiated by obtaining a judicial order showing good

cause.23

Different approaches are offered by the states of Colorado and Georgia,

both of which are full-participant states under NICS. Operating under

 

21 New York v. U.S., 505 U.S. 144, 165 (1992); South Dakota v. Dole, 483 U.S. 203, 206 (1987).

22 Public Law 103-322 (Sept. 13, 1994).

23 Washington’s 30-day hold rule also applies to firearms transactions where the background check

indicates open criminal charges, pending criminal proceedings, pending commitment proceedings, or

an outstanding warrant.

Amending the Brady Act to

Minimize Default Proceed

Transactions
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Page 21 GAO/GGD-00-56 Gun Control: Options for Improving NICS

temporary state authority,24 Colorado can deny a purchaser with an open

disqualifying arrest (such as a felony), even if the disposition cannot be

obtained within the 3 days allowed under permanent Brady, thus obviating

the need for additional time to further research the transaction. Georgia

has issued regulations stating that, where a background check identifies

the existence of a criminal record that is not immediately available to

determine the eligibility of the purchaser (e.g., an arrest disposition), the

gun dealer may not transfer the firearm until being advised by the state

that the purchaser is not prohibited. According to Colorado and Georgia

state officials, because of the public safety issues involved in a prohibited

person obtaining a firearm, when a background check reveals a potentially

disqualifying record, it is more prudent to deny the transaction and place

the burden on the individual to prove (through an appeals process) that he

or she should not be prohibited from purchasing a firearm.

Amending the 3 business-day default proceed requirement of the Brady Act

could have a significant impact on reducing the number of default

proceeds involving prohibited persons and mitigating public safety

concerns. For example:

• Adopting either the Colorado or the Georgia approach would, for all

intents and purposes, eliminate default proceed transactions, including

those where a prohibited person obtains a firearm. The Colorado

approach, however, could result in some purchasers being incorrectly

denied based solely on arrest records, with the burden then being placed

on the purchasers to appeal the decisions and correct the records. The

Georgia approach would not result in incorrect denials; however, it places

no limit on the amount of time allowed to research the transaction.

• Under the Washington state approach, if a 30 business-day hold had been

in effect during the first 10 months of NICS, the number of default proceed

transactions involving prohibited persons would have been reduced by

over 75 percent. Also, FBI data suggested that such a hold on delayed

transactions would have affected only about 88,000 (or 2 percent) of all

FBI NICS transactions—those that the FBI has reported to be almost 20

times more likely to involve a prohibited person than transactions

involving the average gun buyer.25 Therefore, additional time to research

 

24 This authority was incorporated into legislation permanently reauthorizing Colorado’s instant check

program, which was enacted into state law on March 7, 2000.

25FBI, Criminal Justice Information Services Division, National Instant Criminal Background Check

System: Operations Report (November 30, 1998 – December 31, 1999). More specifically, FBI data for

the first 13 months of NICS implementation show that delayed background checks taking more than 24

hours accounted for about 38 percent of the total number of NICS denials, compared with the overall

NICS denial rate of about 2 percent.
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Page 22 GAO/GGD-00-56 Gun Control: Options for Improving NICS

such delayed transactions could play a significant role in preventing

firearms sales to potentially prohibited persons.

In performing our work, we interviewed officials and reviewed

documentation at the FBI’s NICS Operations Center (Clarksburg, WV).

Also, we contacted state and/or local law enforcement officials in six

states—Colorado, Georgia, Maryland, Texas, Virginia, and Washington—

jurisdictions we judgmentally selected to cover a variety of background

check roles and responsibilities possible under interim and permanent

Brady. Generally, in conducting this assignment, we obtained agency

statistics and other information. We did not fully assess the reliability or

accuracy of data provided to us by agency officials; however, we did

discuss the sources of the data with agency officials. Also, we worked with

agency officials to reconcile any discrepancies we identified in the data.

We did our audit work between May 1999 and January 2000 in accordance

with generally accepted government auditing standards. Appendix V gives

more details about our objectives, scope, and methodology.

Under permanent Brady, creation of the NICS Index database provides the

FBI and state agencies with centralized access to certain nonfelony,

noncriminal disqualifying information that was not easily available to state

and local law enforcement agencies under interim Brady. However, 1 year

after it was implemented, the NICS Index has yet to reach its full potential

in that it contains relatively few records for several categories of

prohibited purchasers. The FBI is currently taking steps to contact federal

agencies and states to identify the universe of available disqualifying

records and have those records incorporated into the NICS Index. Despite

this effort, however, privacy concerns and state laws may prevent some

types of records—such as those involving substance abuse or mental

health treatment—from becoming widely accessible through the NICS

Index.

In many respects, state agencies are better positioned than the FBI to

conduct NICS background checks. State agencies have access to all of the

information available to the FBI through NICS, plus additional information

available only to their respective state. Further, state agencies may be

better able to interpret their respective state’s criminal records and

applicable firearms laws. The FBI acknowledges that NICS’ effectiveness

could be enhanced with full participation by more states. However, at the

time of our review, most states were either nonparticipants or partial

participants in NICS. Increased state participation in NICS may be

hindered by fiscal pressures, lack of interest in long gun regulation,

Scope and

Methodology

Conclusions
B-282742

Page 23 GAO/GGD-00-56 Gun Control: Options for Improving NICS

unwillingness to implement an essentially federal program, or

administrative difficulties in administering NICS background checks.

Default proceed transactions involving prohibited persons who purchased

firearms—over 2,500 identified by the FBI during the first 10 months of

permanent Brady—increase concerns about public safety, create resource

demands on law enforcement (particularly ATF) in retrieving firearms

from prohibited persons, and expose law enforcement agents to potential

risk associated with firearms retrievals. Two long-term options for

improving NICS operations and reducing the number of these default

proceed transactions would be to (1) continue funding to provide federal

grants to states for improving the quality and completeness of automated

criminal history records and (2) provide financial incentives to states to

increase the number that participate in NICS. A third option would be to

amend the 3 business-day default proceed requirement of the Brady Act to

treat differently those potential purchasers who had been arrested for

disqualifying offenses and disposition information concerning the arrest

was not readily available. Some states already have laws or other

provisions to minimize the number of default proceed transactions. Under

Washington state law, for example, a hold for up to 30 days can be placed

on a handgun purchase transaction, pending receipt of arrest disposition

information regarding the prospective purchaser’s eligibility to purchase

the handgun.

FBI data suggested that allowing more time to research delayed NICS

transactions would have affected a relatively small percentage of all FBI

NICS transactions—about 2 percent—that took more than 3 business days

to resolve. However, additional research time may have prevented firearms

sales to prohibited persons. For example, based on data for the first 10

months of NICS implementation, the number of default proceeds involving

sales of firearms to prohibited persons would have been reduced by 5

percent with 5 days of research, by 57 percent with 20 days, by 77 percent

with 30 days, and by 91 percent for 60 days.

The Congress may wish to consider one or more options for reducing or

minimizing the number of default proceed transactions involving the

transfer of firearms to prohibited persons. One option is to continue

providing federal grants to states for improving the quality and

completeness of automated criminal history records. Another possible

option is to encourage increased state participation in NICS by providing

some form of federal financial assistance. Also, the 3 business-day default

proceed requirement of the Brady Act could be amended to treat

differently those potential purchasers who had been arrested for

Matters for

Congressional

Consideration
B-282742

Page 24 GAO/GGD-00-56 Gun Control: Options for Improving NICS

disqualifying offenses and arrest disposition information was not readily

available.

On March 1, 2000, we provided a draft of this report for comment to the

Department of Justice and the Department of the Treasury.

• On March 24, 2000, Justice’s Audit Liaison Office (Justice Management

Division) provided us with a written response indicating that the draft had

been reviewed and commented on by representatives of the FBI, BJS, the

Office Justice Programs, the Executive Office for U.S. Attorneys, the Office

of Policy Development, and the Office of the Deputy Attorney General.

• On March 24, 2000, Treasury’s Office of Finance and Administration

(Office of Under Secretary for Enforcement) provided us with a written

response indicating that the draft report had been reviewed and

commented on by representatives of Treasury’s Office of Enforcement and

ATF.

Justice generally concurred with the findings presented in the draft report

and provided various technical clarifications and/or updated information,

which we incorporated in this report where appropriate. Regarding default

proceed transactions, Justice expressed agreement with the three possible

solutions or options that we set forth and also noted that these were not

mutually exclusive. More specifically, Justice commented substantially as

follows regarding the options:

• Option 1: Federal Grants to Improve State Criminal History Records.

Justice believes that continuing NCHIP funding is critical and supports

enhanced funding for the program. The administration’s fiscal year 2001

budget request reflects a doubling of the current level of funding—i.e.,

from $35 million in fiscal year 2000 to $70 million in fiscal year 2001. Also,

Justice believes that the NCHIP grants will have their effect only over the

long term. The FBI, state, and local law enforcement have been working

for years to centralize all criminal information into a national system, and

Justice will continue to work with the states toward achieving that goal.

The use of a national system is important because the U.S. population is

very mobile and using 50 different databases to access information

concerning firearm disabilities is neither feasible nor desirable.

• Option 2: Financial Incentives to Encourage State Participation in NICS.

Since well before the implementation of NICS, the FBI has strongly

supported the concept of states serving as points of contact for conducting

background checks. Under permanent Brady, the FBI continues to believe

that states are better positioned than the FBI to conduct background

Agency Comments

Department of Justice
B-282742

Page 25 GAO/GGD-00-56 Gun Control: Options for Improving NICS

checks. Similarly, Justice strongly supports having states serve as points of

contacts, and Justice believes that states can perform more thorough

checks for the reasons discussed in the draft report. However, it is not

clear from any data that (1) having more states serve as points of contacts

would reduce the volume of unresolved checks and (2) the states would be

better able to track down missing criminal dispositions, which is the major

reason for default proceeds. When arrest disposition information is not

found in automated state criminal history systems, NICS examiners

typically must contact the appropriate courts of record to obtain the

disposition. Thus, providing funding to the states without focusing it for

the courts is unlikely to resolve the issue of missing dispositions. The FBI

has already collected and entered more than 80,000 such dispositions into

the FBI criminal history database and forwarded these dispositions to the

appropriate states to update their own criminal history databases.

• Option 3: Amending the Brady Act to Minimize Default Proceed

Transactions. Justice takes no exception to this option. Whereas option 1

is a long-term solution, amending the Brady Act to alter the 3-day window

would provide a much more immediate reduction in default proceeds. The

number of default proceeds relative to the number of total background

checks is quite small; however, the risks and costs associated with the

occurrence of default proceeds are significant. In the judgment of Justice,

the public benefits in extending the 3 business-day default period

substantially outweigh the inconvenience that would thereby be incurred

by the very small minority of gun buyers. Therefore, Justice suggests that

Congress give serious consideration to altering the 3-day window.

Moreover, regarding option 3, Justice commented that it has considered

the issue of fairness to repeat purchasers. That is, Justice noted that since

many gun purchasers are repeat purchasers, if the Brady Act were

amended to extend the 3-day window, fairness to nonprohibited applicants

requires that any dispositions found during the lengthened background

check period be subsequently included in the applicable electronic

criminal history records. In this regard, NCHIP provides federal funds to

states to cover specifically the costs of entering dispositions found during

NICS background checks into criminal history records.

Treasury said that the report was thorough, expressed concurrence with

the report’s findings, and provided some technical clarifications, which we

incorporated in this report where appropriate. Regarding default proceed

transactions resulting in the sale of firearms to prohibited persons,

Treasury expressed support for the various options we presented for

addressing this issue. Also, Treasury noted that:

Department of the Treasury
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Page 26 GAO/GGD-00-56 Gun Control: Options for Improving NICS

• Responding to default proceed transactions is a resource-intensive,

potentially dangerous mission, which diverts ATF’s already limited special

agent resources from other investigations.

• Clarification of default proceed procedures and analysis of the origin,

cause, and status of unresolved background checks would be helpful in

reducing their number in the future, as well as determining medium-term

resource implications for Treasury in meeting its enforcement obligations.

As we arranged with your offices, unless you publicly announce this

report’s contents earlier, we plan no further distribution of it until 30 days

after the date of this report. At that time, we will send a copy of this report

to Senator Strom Thurmond, Chairman, Senate Subcommittee on Criminal

Justice Oversight, and to other relevant congressional committees. We will

also send copies to The Honorable Janet Reno, Attorney General; The

Honorable Louis Freeh, FBI Director; The Honorable Lawrence Summers,

the Secretary of the Treasury; and The Honorable Bradley Buckles, ATF

Director. This report will be provided to other interested parties upon

request.

If you or your staff 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 (214) 777-5600. Other key contributors to this report are

acknowledged in appendix VI.

Sincerely yours,

Laurie E. Ekstrand

Director, Administration of

Justice Issues
Page 27 GAO/GGD-00-56 Gun Control: Options for Improving NICS
Page 28 GAO/GGD-00-56 Gun Control: Options for Improving NICS

Contents

1 Letter

30

Interim Brady 30

Permanent Brady 32

Background 33

Questions and Responses Regarding the Process in

Which the FFL Contacts the FBI

42

Appendix I

Overview of Firearms

Purchase Application

and Background

Check Procedures

Under Interim and

Permanent Brady

44

BJS Report on Results of Interim Brady 44

Our Report on Implementation of Interim Brady 45

State and Local Perspectives on Access to Information

Under Interim Brady

46

Appendix II

Access To

Disqualifying Records

Under Interim Brady

51

Overview 51

Permits 53

Waiting Periods 54

Reporting 55

Appendix III

Information on States’

Firearms Laws

57

OTA Report (1991) 57

BJS Report (1999) 59

Improving the Quality of Automated Records 61

Appendix IV

Relationship Between

Background Checks

and Quality of

Automated Records

64

Objectives 64

Scope and Methodology of Our Work 65

Appendix V

Objectives, Scope, and

Methodology
Contents

Page 29 GAO/GGD-00-56 Gun Control: Options for Improving NICS

Appendix VI

GAO Contacts and

Staff

Acknowledgments

71

Table 1: Number and Category of Records in the NICS

Index (as of November 30, 1999)

8

Table 2: Number of Business Days Taken to Identify

Default Proceed Transactions Involving Prohibited

Purchasers (as of September 30, 1999)

17

Table I.1: State Participation Under Interim Brady 31

Table II.1: State Access to Disqualifying Information

Under Interim Brady (as of November 1998)

45

Table III.1: State Permit, Waiting Period, and Reporting

Requirements for Firearms Purchases (1999)

51

Table V.1: Brady Status of States Selected for Site Visits 67

Tables

Figure I.1: State and Territory Participation in the

National Instant Criminal Background Check System

(as of Feb. 1, 2000)

34

Figure I.2: Flowchart of NICS Background Checks

Conducted by the FBI

36

Figure I.2 (cont.) 37

Figure I.3: Flowchart of NICS Background Checks

Conducted by Designated State Agencies

38

Figures
Appendix I

Overview of Firearms Purchase Application

and Background Check Procedures Under

Interim and Permanent Brady

Page 30 GAO/GGD-00-56 Gun Control: Options for Improving NICS

This appendix provides a general overview of firearms purchase

application and background check procedures under the interim and

permanent provisions of the Brady Act (effective February 28, 1994, and

November 30, 1998, respectively).

Effective February 28, 1994, the Brady Act’s phase I or interim provisions

required licensed firearms dealers to, among other things, request a

presale background check on handgun purchasers. The checks generally

were to be conducted by the chief law enforcement officer (CLEO)1

 in the

purchaser’s residence community to determine, on the basis of available

records, if the individual was legally prohibited from buying the firearm

under the provisions of federal, state, or local law. The sale was not to be

completed for 5 business days unless the dealer received an approval from

the CLEO before that time. If the CLEO did not contact the dealer within

the 5-day period, the dealer could make the sale unless the dealer had

reason to believe the transaction would be unlawful.

Under interim Brady, the prospective handgun purchaser was to complete

a form—generally referred to as the Brady form2

—giving his name, date of

birth, and residence address and certifying that he or she was not a

member of various categories prohibited from buying a firearm. Then, the

dealer was to provide notice of the form’s contents to the CLEO of the area

in which the buyer’s residence was located. The CLEO then was to “make

a reasonable effort” to ascertain within 5 business days whether the sale

would violate federal, state, or local law, including research in whatever

state and local recordkeeping systems were available and the FBI-operated

National Crime Information Center files.

The CLEO could allow the sale to proceed at any time during the 5-day

waiting period by advising the gun dealer that the applicant had not been

determined to be a prohibited person. Alternatively, if not notified to the

contrary, the gun dealer could assume that the purchaser was not

disqualified and could complete the sale upon expiration of the 5-day

period. However, if the search revealed that the applicant was ineligible to

receive a handgun, the CLEO was to notify the dealer (without providing

the reason) that the sale was denied. The CLEO could also instruct the

dealer to refer the buyer to the CLEO if the buyer had questions or

otherwise challenged the denial.

 

1

 Brady defined a CLEO as the “chief of police, sheriff, or an equivalent officer or the designee of any

such individual.” In some states—by agreement among the applicable law enforcement agencies—-the

state police department served as the CLEO.

2

 ATF Form 5300.35, Statement of Intent to Obtain A Handgun(s).

Interim Brady
Appendix I

Overview of Firearms Purchase Application and Background Check Procedures Under

Interim and Permanent Brady

Page 31 GAO/GGD-00-56 Gun Control: Options for Improving NICS

Further, under interim Brady, the Bureau of Alcohol, Tobacco and

Firearms (ATF) categorized each state as either a “Brady state” or a

“Brady-alternative state.”3

 The Brady states were those that had to comply

with the 5-day waiting period provision to facilitate background checks by

CLEOs. Each Brady-alternative state was so designated by ATF because

each state had an “alternative” system to the federal 5-day waiting period.

Generally, the alternative system was either (1) a permit or other

preapproved system or (2) a point-of-sale or instant check system. Under

either alternative, state law had to require that an authorized official verify

that the “information available” to such official did not indicate that the

prospective purchaser’s possession of the handgun would violate the law.

Also, according to ATF officials, the same minimum standard for

background checks applied to both Brady and Brady-alternative states.

That is, at a minimum, a check of criminal history records was required to

screen out all convicted felons.

Table I.1 shows each state’s status under interim Brady, as well as the

number of CLEOs responsible for performing background checks.4

 More

details about interim Brady are presented in our 1996 report.5

Orginal Brady

states

(3/1/94)

Brady states

(11/29/98)

Brady-alternative

states

(11/29/98)

Number of

CLEOs

(11/29/98)

Alabama • • 67

Alaska • • 35

Arizona • • 1

Arkansas • • 1

California • 1

Colorado • • 1

Connecticut • 1

Delaware • 1

Florida • 1

Georgia • • 1

Hawaii • 4

Idaho • • 1

Illinois • 1

 

3

 As of February 28, 1994, 32 states were categorized as Brady states, and the other 18 states were

categorized as Brady-alternative states.

4

 In 1997, the U.S. Supreme Court ruled that the Brady Act’s interim (phase I) provision commanding

CLEOs to conduct background checks was unconstitutional in that it compelled state officers to

execute federal law (Printz v. U.S. (521 U.S. 898)).

5

 Gun Control: Implementation of the Brady Handgun Violence Prevention Act (GAO/GGD-96-22, Jan.

25, 1996).

Table I.1: State Participation Under

Interim Brady
Appendix I

Overview of Firearms Purchase Application and Background Check Procedures Under

Interim and Permanent Brady

Page 32 GAO/GGD-00-56 Gun Control: Options for Improving NICS

Orginal Brady

states

(3/1/94)

Brady states

(11/29/98)

Brady-alternative

states

(11/29/98)

Number of

CLEOs

(11/29/98)

Indiana • 1

Iowa • 100

Kansas • • 123

Kentucky • • 5

Louisiana • • 64

Maine • • 129

Maryland • 1

Massachusetts • 270

Michigan • 595

Minnesota • • 568

Mississippi • • 262

Missouri • 115

Montana • • 56

Nebraska • 95

Nevada • • 1

New Hampshire • • 1

New Jersey • 505

New Mexico • • 113

New York • 58

North Carolina • • 100

North Dakota • • 53

Ohio • • 1

Oklahoma • • 440

Oregon • 1

Pennsylvania • • 67

Rhode Island • • 39

South Carolina • • 1

South Dakota • • 66

Tennessee • • 96

Texas • • 991

Utah • • 1

Vermont • • 22

Virginia • 1

Washington • • 291

West Virginia • • 1

Wisconsin • 1

Wyoming • • 40

Total 32 23 27 5,390

Source: BJS, Presale Handgun Checks, the Brady Interim Period, 1994-98 (June 1999).

Under the Brady Act’s phase II or permanent provisions, the National Permanent Brady Instant Criminal Background Check System (NICS) began operations on
Appendix I

Overview of Firearms Purchase Application and Background Check Procedures Under

Interim and Permanent Brady

Page 33 GAO/GGD-00-56 Gun Control: Options for Improving NICS

November 30, 1998. NICS is managed by the FBI but can be accessed by

designated state agencies, as discussed below. Federal firearms licensees

(FFLs)—particularly retail sales outlets—have a key role in helping to

ensure the integrity of the background check process by verifying the

identity of the purchaser and relaying the purchaser’s personal

identification information to the FBI or to a designated state agency.6

Depending on the willingness of their state government to act as a NICS

liaison, FFLs contact either the FBI or a designated state agency to initiate

background checks on individuals purchasing firearms.7

 Generally,

depending upon the state in which the FFL is conducting business and the

type of weapon purchased, there are three methods of performing

background checks:

• In the 24 “nonparticipant” states in which the state government has

declined to designate a point of contact or liaison for conducting

background checks, the FFLs are to contact the FBI to initiate a

background check on all firearms transfers (permits or purchases). In

addition to 24 states, this category also includes the District of Columbia,

Puerto Rico, and the U.S. Virgin Islands.

• In the 15 “full participant” states, FFLs are to contact a designated state

agency (e.g., state police), which is to make the NICS background check

and determine whether the transfer or issuance of a permit would violate

state or federal law.

• In the remaining 11 “partial participant” states, FFLs are to contact (1) the

FBI for background checks on long-gun purchases or permits or (2) a

designated state agency for background checks on handgun purchases or

permits.

Figure I.1 illustrates which states and territories are in each of the three

participation categories as of February 1, 2000.

 

6

 NICS background checks are to be performed in connection with firearms transfers and are not to be

limited to firearms sales (see 63 FR 58306). When we use the term “potential buyer” or “potential

purchaser,” we are also referring to other potential firearms recipients, such as individuals redeeming

pawned firearms.

7

 Federal law prohibits persons from receiving a firearm if they (1) have been convicted of, or are under

indictment for, a felony; (2) are fugitives from justice; (3) are unlawful users of, or addicted to, any

controlled substance; (4) have been adjudicated as mental defectives or have been involuntarily

committed to a mental institution; (5) are illegal or unlawful aliens, or certain other aliens admitted to

the United States under a nonimmigrant visa; (6) have been dishonorably discharged from the military;

(7) have renounced their U.S. citizenship; (8) are subject to certain domestic violence restraining

orders; or (9) have been convicted of a domestic violence misdemeanor.

Background
Appendix I

Overview of Firearms Purchase Application and Background Check Procedures Under

Interim and Permanent Brady

Page 34 GAO/GGD-00-56 Gun Control: Options for Improving NICS

Source: FBI data.

Figure I.1: State and Territory Participation in the National Instant Criminal Background Check System (as of Feb. 1, 2000)
Appendix I

Overview of Firearms Purchase Application and Background Check Procedures Under

Interim and Permanent Brady

Page 35 GAO/GGD-00-56 Gun Control: Options for Improving NICS

As previously discussed, FFLs contact either the FBI or a designated state

agency for a NICS background check. Figure I.2 illustrates the background

check process in which the FFL contacts the FBI, and figure I.3 illustrates

the process in which the FFL contacts a designated state agency.
Appendix I

Overview of Firearms Purchase Application and Background Check Procedures Under

Interim and Permanent Brady

Page 36 GAO/GGD-00-56 Gun Control: Options for Improving NICS

Figure I.2: Flowchart of NICS Background Checks Conducted by the FBI
Appendix I

Overview of Firearms Purchase Application and Background Check Procedures Under

Interim and Permanent Brady

Page 37 GAO/GGD-00-56 Gun Control: Options for Improving NICS

a

NICS contract personnel are not authorized to review actual criminal history records. The database

Figure I.2 (cont.)
Appendix I

Overview of Firearms Purchase Application and Background Check Procedures Under

Interim and Permanent Brady

Page 38 GAO/GGD-00-56 Gun Control: Options for Improving NICS

query results seen by these personnel are simply an indicator that there either is no match (therefore,

a proceed) or a potential match on one or more of the databases (therefore, a delay).

b

The retrieval actions are discussed in appendix III of this report.

Source: GAO analysis of FBI data.

a

If after 3 business days the FFL has not been notified of the background check results, the FFL may

transfer the firearm, unless a state statute provides for a period greater than 3 business days.

b

States are to have a process whereby denied individuals may appeal the denial.

Source: GAO analysis of FBI data.

Figure I.3: Flowchart of NICS Background Checks Conducted by Designated State Agencies
Appendix I

Overview of Firearms Purchase Application and Background Check Procedures Under

Interim and Permanent Brady

Page 39 GAO/GGD-00-56 Gun Control: Options for Improving NICS

Although the two processes presented in figures I.2 and I.3 are similar in

that both entities use NICS in the background check process, the following

narrative sections relate specifically to the former (fig. I.2), that is, the

process in which the FFL contacts the FBI.

The FBI’s NICS Program Office is responsible for conducting the

background checks and consists of the following components:

• Two Call Centers staffed with contract personnel are located in

Uniontown, PA, and Moundsville, WV. FFLs are to use a toll-free telephone

number to contact a Call Center.

• The NICS Operations Center (located in the FBI’s Criminal Justice

Information Services complex in Clarksburg, WV) consists of two groups

of FBI legal instrument examiners—(1) research and analysis and (2)

customer service.

Purchasers of any firearm type (both handguns and long guns) from FFLs

are subject to a presale background check. The prospective purchaser

initiates the process by completing the Bureau of Alcohol, Tobacco and

Firearms’ (ATF) Form 4473 (Firearms Transaction Record).8

 Basically, in

completing this form, the individual is certifying that he or she is not

prohibited by federal law from purchasing a firearm.

On the ATF Form 4473, the prospective buyer must also provide the

following descriptive data: (1) name; (2) sex; (3) height; (4) weight; (5)

race; (6) residence address; (7) date of birth; (8) place of birth; and (9) at

the prospective buyer’s option, Social Security number or other

identification numbers, such as alien registration number or military

number. The FFL is to verify the identity of the buyer by examining a valid

form of identification that contains a photograph of the buyer.

After the ATF Form 4473 is completed, the FFL uses a toll-free telephone

number to contact an FBI Call Center. Upon receiving the telephone

request for a background check, the Call Center’s contract staff are to

verify the caller’s FFL number and code word, initiate a name-based

search, and provide a NICS transaction number (NTN)9

 for a valid inquiry.

Some of the descriptive data provided on the ATF Form 4473 are to be

 

8

 Use of ATF Form 4473 preceded the Brady Act.

9

The NTN is generated by the NICS computer. Each NTN is to be a unique number assigned to each

valid background check inquiry received by NICS. The primary purpose of NTNs is to provide a means

of associating inquiries to NICS with the responses provided by NICS to FFLs. The NTNs are further

discussed in appendix IV.

Firearm Buyer Must

Complete ATF Form 4473

FFL Contacts FBI Call

Center Contract Staff, Who

Queries National Databases
Appendix I

Overview of Firearms Purchase Application and Background Check Procedures Under

Interim and Permanent Brady

Page 40 GAO/GGD-00-56 Gun Control: Options for Improving NICS

provided to the Call Center contract staff and are searched against the

records contained in the NICS’ three relevant national databases as

follows:

National Crime Information Center 2000 (NCIC 2000).10 NCIC 2000 is the

nation’s most extensive computerized criminal justice information system.

It consists of a central computer located in the FBI’s Criminal Justice

Information Services complex, Clarksburg, WV; dedicated

telecommunications lines; and a coordinated network of federal and state

criminal justice information systems. The NCIC 2000 system contains files

on the following subjects, among others:

• The wanted persons file contains information on persons for whom a

federal warrant, felony warrant, or serious misdemeanor warrant is

outstanding, including domestic and foreign warrants.

• The protection order file contains information on restraining orders issued

for the purpose of preventing violent or threatening acts or harassment

against another person. Active orders that contain a Brady Act indicator of

“yes” are disqualifiers.

Interstate Identification Index (III).11 Managed by the FBI, III is an indexpointer system for the interstate exchange of criminal history records. III

records include information on persons who are indicted for, or have been

convicted of, a crime punishable by imprisonment for a term exceeding 1

year or have been convicted of a misdemeanor crime of domestic violence.

NICS Index. Managed by the FBI, this database contains information

provided by federal and state agencies about certain persons prohibited

under federal law12 from receiving or possessing a firearm. The NICS Index

is separate and apart from NCIC and III, and all records in the NICS Index

are disqualifying records and will prohibit the sale of a firearm. More

specifically, the NICS Index contains records on persons who

• were discharged from the armed forces under dishonorable conditions,

• have renounced their U.S. citizenship,

 

10NCIC 2000, which replaced NCIC, became operational on July 11, 1999.

11III became operational in the 1980s. III was made a segment of the Integrated Automated Fingerprint

Identification System, which became operational on July 28, 1999.

12Records on individuals denied under state law, but who are not prohibited under federal law, are not

to be entered into the NICS Index. Also, any record entered into the NICS Index must be removed if the

record is overturned through the appeal process (discussed later in this appendix).
Appendix I

Overview of Firearms Purchase Application and Background Check Procedures Under

Interim and Permanent Brady

Page 41 GAO/GGD-00-56 Gun Control: Options for Improving NICS

• have been unlawful users of or addicted to any controlled substance,13

• have been adjudicated as a mental defective or have been committed to a

mental institution,14

• are known aliens and are illegally or unlawfully in the United States or

certain aliens admitted under a nonimmigrant visa, or

• have been denied the purchase of a firearm in accordance with federal

laws.

On the basis of a consolidated search of the three national databases, the

FBI Call Center is to provide the FFL with one of the following two

possible one-word responses:15

• Proceed. This response is to be provided if no record that might be a

match is found in the NCIC 2000, III, and NICS Index databases.

• Delayed. This response is to be provided if the search finds a potentially

matching record.16 A delayed response to the FFL indicates that it would be

unlawful to transfer the firearm until receipt of a follow-up proceed

response or the expiration of 3 business days, whichever occurs first.17

Delayed means that more research is required before a proceed or a

denied response can be given.

For each delayed response, FBI staff are to conduct research to verify that

the matching record applies to the potential buyer and to determine if the

potential buyer is disqualified by federal or state law from possessing a

firearm. This practice exists because Call Center contract staff are not

authorized to review criminal history records; instead, FBI staff

 

13Under federal law, a drug-related arrest without a conviction normally will not prohibit a person from

purchasing a firearm. However, according to ATF regulations, persons who have had multiple arrests

(regardless of disposition) for use or possession of a controlled substance within the past 5 years, if the

most recent arrest occurred within the past year, are prohibited.

14According to ATF regulations, (1) individuals committed to a mental institution by a court, board,

commission, or other lawful authority; (2) a person found to be insane in a criminal case; (3) a person

found to be mentally incompetent to stand trial; or (4) a person found not guilty by reason of mental

responsibility are prohibited. In contrast, persons suffering from mental illness who have voluntarily

committed themselves to a mental institution are not disqualified by law from possessing firearms.

15Neither response provided to the FFL is to contain any details of the information in the records

checked by the system.

16A delayed response is also to be given in the event that a search of the databases is not completed

within the time limit (normally a 30-second limit). These delays are to be resolved by the FBI after the

database search is complete.

17“Business day” is defined by federal regulation as a 24-hour day (beginning at 12:01 a.m.) during which

state offices are open in the state in which the proposed firearm transaction is to take place (63 Fed.

Reg. 58303, 58307 (1998)).
Appendix I

Overview of Firearms Purchase Application and Background Check Procedures Under

Interim and Permanent Brady

Page 42 GAO/GGD-00-56 Gun Control: Options for Improving NICS

(examiners) at the NICS Operation Center are to conduct the necessary

research of each delayed response to determine whether records indicate

that a proceed response or a denied response should be provided.

Using a question-and-response format (as illustrated in fig. I.2), this section

provides further information about the firearm-purchase application and

background check process in which an FFL contacts the FBI.

Does the query indicate that the potential firearm buyer may be ineligible?

No: If the database query finds no records indicating ineligibility, the Call

Center contract staff is to (1) provide a proceed response to the FFL and

(2) also provide the FFL with an NTN, which is to be recorded on the ATF

Form 4473. After receiving the proceed response from the FBI, the FFL

can transfer the firearm to the buyer.

Yes: If the database query finds records indicating possible ineligibility, the

Call Center contract staff is to (1) inform the FFL that the transaction is

delayed, (2) provide the FFL with an NTN to be recorded on the ATF Form

4473, and (3) obtain the FFL contact person’s name and telephone number

so that he or she may receive the results of the FBI’s additional research.

Then, as previously mentioned, because Call Center contract staff are not

authorized to review criminal history records, FBI staff (examiners) at the

NICS Operations Center are to conduct the necessary research to

determine eligibility.

According to FBI officials, most delayed responses are the result of the

computer search identifying existing criminal history records. Delays that

take extensive research generally occur when the search identifies

criminal records showing an arrest for a potentially disqualifying offense

but containing no information about the outcome or result. For example,

there may be a record showing a felony-related arrest with no final

disposition, such as whether the case was dismissed or resulted in a

conviction.

Does the research indicate that the buyer is ineligible?

Questions and

Responses Regarding

the Process in Which

the FFL Contacts the

FBI

Question 1

Possible Response

Question 2
Appendix I

Overview of Firearms Purchase Application and Background Check Procedures Under

Interim and Permanent Brady

Page 43 GAO/GGD-00-56 Gun Control: Options for Improving NICS

No: If the research finds no records indicating ineligibility, the FBI is to

provide the FFL with a proceed response, and the FFL can then transfer

the firearm to the buyer.

Yes: If the research does find records indicating ineligibility, the FBI is to

provide the FFL with a denied response. In turn, the FFL is to inform the

buyer of the denial and provide the buyer with appeal instructions.

The FFL is not to transfer the firearm until receipt of a proceed response

from the NICS Operations Center or expiration of 3 business days

(excluding the day on which the query was made), whichever comes first.

If 3 business days lapse before the NICS Operations Center has notified the

FFL that the firearm purchase should be denied and the FFL transfers the

firearm, the FBI is to initiate steps to have the firearm retrieved.

Does the buyer appeal the denial?

No: If the buyer does not appeal the denial, no further action is required of

the FBI. The FBI noted, however, that if it were to receive information

that would change a denial determination to a proceed it would correct the

criminal history records.

Yes: The appeal must be made in writing by the appellant. An FBI analyst

is to review the appeal.

Is the denial reversed on appeal?

No: If the denial is not reversed on appeal, the FBI is to inform the buyer

and is not required to take any further action.

Yes: If the denial is reversed on appeal, the FBI is to inform the buyer. If

fewer than 30 days have elapsed since completion of the ATF Form 4473,

the FFL can transfer the firearm to the buyer. However, if 30 or more days

have elapsed, the buyer must submit another ATF Form 4473 to initiate an

updated background check. When an appeal results in a proceed

determination, the NICS records are to be updated to avoid having future

denials based on the same information.

Possible Response

Question 3

Possible Response

Question 4

Possible Response
Appendix II

Access To Disqualifying Records Under

Interim Brady

Page 44 GAO/GGD-00-56 Gun Control: Options for Improving NICS

In discussing the way firearms background checks were performed under

interim Brady, this appendix summarizes (1) previous reports on access to

records under interim Brady and (2) the results of our visits to state and

local law enforcement agencies in six states.

In June 1999, the Bureau of Justice Statistics (BJS) released a

comprehensive study on the results of interim Brady from its inception in

February 1994 until its transition to NICS in November 1998.1 BJS reported

that approximately 312,000 handgun purchases had been denied under

interim Brady. About 63 percent of the denials were for a prior felony

conviction or current felony indictment, domestic violence misdemeanors

accounted for about 10 percent of the denials, and domestic violence

protection orders about 3 percent.

Despite the number of denials during interim Brady, state and local

agencies were not accessing data or databases for all of the Brady

disqualifiers. As shown in table II.1 below, BJS reported that the extent of

state and local access to data differed somewhat based on the particular

disqualifying factor:

• All of the states maintained statewide databases that recorded criminal

histories—such as past felony convictions.

• Many states had access to data on other disqualifying factors—such as

fugitive status, court restraining orders, mental illness, and domestic

violence misdemeanors.

• In some states, these data were not available at the state level for

statewide dissemination, but some local agencies maintained automated

databases of this type of information.

• Some states had separate data files or databases related to their own state

prohibitions (e.g., probation and parole, juvenile offenses, and motor

vehicle offenses).

• None of the states accessed specific databases for other noncriminal

Brady disqualifiers—illegal alien status, dishonorable discharge, and

citizenship renunciation.

 

1

 U.S. Department of Justice, Office of Justice Programs, BJS, Presale Handgun Checks, the Brady

Interim Period, 1994–98 (NCJ-175034), June 1999.

BJS Report on Results

of Interim Brady
Appendix II

Access To Disqualifying Records Under Interim Brady

Page 45 GAO/GGD-00-56 Gun Control: Options for Improving NICS

In addition to the above, BJS previously reported that all states also had

access to federal wanted files and Interstate Identification Index (III) files

through the FBI’s National Crime Information Center (NCIC).2

Number of

states

Percent of

states

State

information

Criminal

histories 50 100%

Wanted

fugitives 44 88

Restraining

orders 36 72

Mental

health 16 32

Domestic violence

misdemeanors 34 68

Federal

information

Wanted persons 50 100

III index 50 100

Source: BJS.

In its 1999 report, BJS concluded that once NICS was implemented on

November 30, 1998, background checks handled entirely by the FBI might

not access all of the state-level files accessed under interim Brady.

In our previous report on interim Brady,3

 we found that most of the 20

state or local jurisdictions we surveyed relied primarily on criminal history

records to conduct interim Brady background checks. For example, in the

15 jurisdictions that maintained records, of the 9,941 denials based on

Brady disqualifiers, about 91 percent were based on criminal history

records—primarily due to a felony indictment, arrest, conviction, or

outstanding warrant. Another 1 percent of the denials were based on

restraining orders, and the other 8 percent of the denials were for other

disqualifying factors under interim Brady.

We further reported that the lack of centralized, automated databases

containing information on the other Brady disqualifiers restricted the

 

2

 U.S. Department of Justice, Office of Justice Programs, BJS, Survey of State Procedures Related to

Firearm Sales, 1996 (NCJ-163918), September 1997.

3

 Gun Control: Implementation of the Brady Handgun Violence Prevention Act (GAO/GGD-96-22, Jan.

25, 1996).

Table II.1: State Access to

Disqualifying Information

Under Interim Brady (as of

November 1998)

Our Report on

Implementation of

Interim Brady
Appendix II

Access To Disqualifying Records Under Interim Brady

Page 46 GAO/GGD-00-56 Gun Control: Options for Improving NICS

ability of law enforcement officers to identify prospective gun buyers who

fell into one of these categories. According to law enforcement officials,

information concerning the other Brady disqualifiers was only

coincidentally included in the criminal history databases. For example:

• Drug User or Addict – Denials were based on criminal history records

showing that the prospective gun buyer had arrests for drug offenses.

• Mentally Disabled – Denials were based on local court records, state and

county mental health records, or mental problems indicated in the criminal

history records.

• Dishonorable Discharge – Denials were based on criminal history records

indicating arrests for being absent without leave from the military.

• Illegal Alien – Denials were based on alien status indicated in the criminal

history records.

Thus, while interim Brady specified background checks on a number of

disqualifying, nonfelony categories, most law enforcement officers had no

way to check purchasers’ backgrounds, with respect to these disqualifiers.

As part of our review, from June through October 1999, we visited state

and/or local law enforcement agencies in six states4

 to obtain additional

state and local perspectives on what databases had been available under

interim Brady. More specifically, we met with officials of the following

agencies:

• Colorado: Colorado Bureau of Investigation.

• Georgia: Georgia Bureau of Investigation, Cobb County Sheriff’s Office,

and Fulton County Sheriff’s Office.

• Maryland: Maryland State Police.

• Texas: City of Dallas Police Department and City of Fort Worth Police

Department.

• Virginia: Virginia State Police.

• Washington: King County Sheriff’s Office and Pierce County Sheriff’s

Office.

Under interim Brady, Colorado operated a statewide instant check system,

established in early 1994 at about the same time interim Brady became

effective. As such, Colorado was designated as a Brady-alternative state.

The state’s background check system covered handgun purchases and was

 

4

 As discussed in appendix V, we judgmentally selected the six states to cover a variety of background

check roles and responsibilities possible under interim and permanent Brady.

State and Local

Perspectives on Access

to Information Under

Interim Brady

Colorado

(Colorado Bureau of

Investigation)
Appendix II

Access To Disqualifying Records Under Interim Brady

Page 47 GAO/GGD-00-56 Gun Control: Options for Improving NICS

operated by the Colorado Bureau of Investigation. The state instant check

process differed from Brady Act requirements in the following respect:

• The background check generally had to be completed within 24 hours of

the inquiry, at which time the gun dealer could legally sell the gun without

having received an affirmative response from the state.

• Prospective purchasers could be denied if they had been arrested or

charged with any crime that, if convicted, would disqualify the person from

possessing a handgun.

During the instant background checks, the state accessed NCIC and III to

obtain records on nationwide wanted persons and persons under

restraining orders, as well as federal and state criminal records.

Background checks also accessed the state’s criminal record repository,

which included the state’s criminal history records as well as state files on

Colorado restraining orders and Colorado wanted persons. Colorado’s

background checks did not access information about some of interim

Brady’s noncriminal disqualifiers. For example, mental health records

were not included in any of the databases accessed during firearm

purchase background checks under interim Brady. According to Colorado

officials, access to these types of medical records would be illegal under

state law. Similarly, there was no computerized access to specific records

on the federal disqualifiers—persons dishonorably discharged, illegal or

unlawful aliens, and persons who have renounced their citizenship—

unless that information was with a criminal record.

Initially under interim Brady, Georgia relied on local law enforcement

officers to conduct handgun background checks. As such, Georgia was a

Brady state, subject to the background check requirements (including the

5-day background check period) of interim Brady. During this initial phase,

local background checks primarily accessed criminal history, wanted

person, and restraining order records through NCIC, III, and the state’s

criminal record repository. The background checks would also search

local city or county criminal justice databases for any additional

disqualifying records—for example, misdemeanors or disposition

information—that may not have been submitted to the state repository or

NCIC. These local background checks did not access databases containing

records for some of interim Brady’s noncriminal disqualifying categories,

including mental disability, illegal or unlawful aliens, and persons

dishonorably discharged from the military.

In January 1996, Georgia established a statewide instant check system and,

thus, was considered a Brady-alternative state under interim Brady. The

Georgia

(Georgia Bureau of

Investigation, Cobb and

Fulton County Sheriffs’

Offices)
Appendix II

Access To Disqualifying Records Under Interim Brady

Page 48 GAO/GGD-00-56 Gun Control: Options for Improving NICS

new system provided instant background checks for handgun purchases

and was operated by the Georgia Bureau of Investigation. The state instant

check process differed from Brady Act requirements in the following

respect:

• If the background check revealed the existence of a potential disqualifying

record not immediately available to the state, the gun dealer was advised

the transaction was delayed, and the gun could not be sold until the gun

dealer received an affirmative response from the state.

Georgia’s instant check system essentially accessed the same

computerized databases as those accessed by local law enforcement

agencies, with the exception of the local criminal justice databases. There

was no computerized access to specific records for some of interim

Brady’s noncriminal disqualifying categories, including mental defectives,

illegal or unlawful aliens, and persons dishonorably discharged from the

military, unless that information was associated with a criminal record.

Under interim Brady, Maryland operated a statewide background check

system for handguns and was a Brady-alternative state. The statewide

background check program—in place since 1966—was operated by the

Maryland State Police. The state background check process differed from

Brady Act requirements in the following respect:

• The state was allowed 7 days to complete the background check, and the

gun could not be sold until after 7 days had elapsed (a mandatory waiting

period), regardless of when the check was completed. After 7 days, the gun

could be legally sold without an affirmative response from the state.

• Only one handgun could be purchased by the same person in a 30-day

period.

Under Maryland’s firearms background check process, the state could

access various state and local databases containing records about federal

and state criminal histories and wanted persons (through NCIC, III, and

the Maryland criminal record repository), state motor vehicle offenses (for

indications of drug and alcohol abuse), and state civil warrants (for

protective orders). Under interim Brady, however, Maryland did not have

computerized access to specific information regarding mental defectives,

illegal or unlawful aliens, or other federal noncriminal disqualifiers, unless

that information was associated with a criminal record.

Maryland

(Maryland State Police)
Appendix II

Access To Disqualifying Records Under Interim Brady

Page 49 GAO/GGD-00-56 Gun Control: Options for Improving NICS

In Texas, various local law enforcement agencies conducted handgun

purchase background checks under interim Brady. Texas was considered a

Brady state, subject to the background check requirements (including the

5-day background check period) of interim Brady. Local background

checks normally accessed criminal history, wanted person, and restraining

order records through NCIC, III, and the state’s criminal record repository.

The background check would also search local city or county criminal

justice databases for any additional disqualifying records—such as

misdemeanors or disposition information—that may not have been

submitted to the state repository or NCIC.

Some law enforcement agencies accessed other sources of data, in

addition to the nationwide databases identified above. For example, in

addition to the computerized databases accessed, the Fort Worth Police

Department also manually accessed information on persons committed to

the county mental health center. Local background checks did not access

computerized databases containing specific records on some of interim

Brady’s noncriminal disqualifiers, such as illegal or unlawful aliens and

persons dishonorably discharged from the military, unless that information

was associated with a criminal record.

Under interim Brady, Virginia operated a statewide instant background

check system and was a Brady-alternative state. The state’s background

check covered all firearms and was operated by the Virginia State Police.

The state instant check process differed from Brady Act requirements in

the following respect:

• The background check generally had to be completed by the end of the

gun dealer’s next business day, at which time the gun could be legally sold

without having received an affirmative response from the state.

• Only one handgun could be purchased by the same person in a 30-day

period.

During the background check, the state accessed its own criminal

information network, which electronically checked nationwide criminal

history records and wanted files through NCIC and III. In addition, the

state check also accessed the following state databases for additional

disqualifying information not available through NCIC or III: Virginia Mental

Health File, Virginia Wanted and Protective Order Files, Virginia Central

Criminal Records Exchange, and Virginia 30-day Calendar File. While the

Virginia background check system allowed an instant computerized search

for many of the disqualifying categories, the state could not check for

some of interim Brady’s noncriminal disqualifiers, such as illegal or

Texas

(Dallas and Fort Worth

Police Departments)

Virginia

(Virginia State Police)
Appendix II

Access To Disqualifying Records Under Interim Brady

Page 50 GAO/GGD-00-56 Gun Control: Options for Improving NICS

unlawful aliens and persons dishonorably discharged, unless that

information was associated with a criminal record.

In Washington, local law enforcement agencies conducted handgun

purchase background checks under interim Brady. Washington was

considered a Brady state, subject to the background check requirements

(including the 5-day background check period) of interim Brady. The state

background check process differed from Brady Act requirements in the

following respect:

• If the background check revealed the existence of a potential disqualifying

record not immediately available to the state, the state could delay

approval of the transaction for 30 days, during which time the gun could

not be sold without an affirmative response from the state.

Local law enforcement agencies in Washington accessed NCIC and the

Washington state criminal record repository for nationwide records on

persons wanted or under protective orders, or persons with federal or

state criminal histories. Local agencies also accessed statewide databases

operated by the state’s Department of Social and Health Services (for

mental disability records) and the state’s Department of Licensing (for

information about previous handgun purchases and concealed weapons

permits). Finally, the background check would search local city or county

criminal justice databases for any additional disqualifying records—such

as misdemeanors or disposition information—that may not have been

submitted to the state repository or NCIC. King County, for example, also

checked the county’s fingerprint database, the sheriff’s office report

management database, and the county prosecutor’s database for

potentially disqualifying information. Washington law enforcement

agencies did not have access to specific information regarding some of

interim Brady’s noncriminal disqualifiers, such as illegal or unlawful aliens

and persons who renounced their citizenship, unless such information was

associated with a criminal record.

Washington

(King and Pierce County

Sheriffs’ Offices)
Appendix III

Information on States’ Firearms Laws

Page 51 GAO/GGD-00-56 Gun Control: Options for Improving NICS

This appendix provides information on various aspects of states’ firearms

laws. The information was compiled primarily from secondary sources—

that is, material published by the National Rifle Association, Handgun

Control, the Bureau of Justice Statistics (BJS), and the Bureau of Alcohol,

Tobacco and Firearms (ATF). Where possible, we corroborated or

expanded on the data using state sources, including law enforcement

agencies we contacted in the six states that we visited (see app. V).

As shown in table III.1, many states have enacted their own firearms laws,

including requirements for (1) obtaining permits to purchase firearms, (2)

waiting a specified or mandatory time period before firearms can be

purchased, and (3) reporting firearms purchases to state or local

authorities. In some cases, state requirements—such as permit provisions

or mandatory waiting periods—are more stringent than federal

requirements under permanent Brady. Consequently, firearms purchases

must comply with all of the applicable requirements of both state and

federal law.

State permit

to purchasea

State waiting period to

purchase or obtain

permit (days)b

State Long guns Handguns Long guns Handguns

Purchase

reported to state

or local agencyc

Alabama 2 •

Alaska

Arizona •

Arkansas

California d 10 10 •

Colorado •

Connecticut • 14e14e

•

Delaware •

Florida 3 •

Georgia f

Hawaii • • 14g, h 14h

•

Idaho

Illinois • • 1i3i

•

Indiana •

Iowa • 3g

•

Kansas

Kentucky

Louisiana

Maine

Maryland d7h, j

•

Massachusetts • • 30 30 •

Michigan • k

•

Minnesota •

j, l 7e, j

•

Overview

Table III.1: State Permit, Waiting Period,

and Reporting Requirements for

Firearms Purchases (1999)
Appendix III

Information on States’ Firearms Laws

Page 52 GAO/GGD-00-56 Gun Control: Options for Improving NICS

State permit

to purchasea

State waiting period to

purchase or obtain

permit (days)b

State Long guns Handguns Long guns Handguns

Purchase

reported to state

or local agencyc

Mississippi

Missouri • 7 •

Montana

Nebraska • 2g

•

Nevada •

New Hampshire •

New Jersey • • 30g30m

•

New Mexico

New York • 180 •

North Carolina • 30 •

North Dakota

Ohio

Oklahoma

Oregon •

Pennsylvania f

Rhode Island 7 7 •

South Carolina d

•

South Dakota 2 •

Tennessee f

Texas

Utah •

Vermont •

Virginia d

•

Washington 5h

•

West Virginia

Wisconsin 2h

•

Wyoming

Total 4 12 7 19 31

Note: This table represents a compilation of data originally obtained and reported by the National Rifle

Association, Handgun Control, BJS, and ATF. Where necessary, we also corroborated the data with

other state data sources.

a

In some cases, a permit or license is good for multiple purchases of firearms, while in other cases, a

separate permit is required for each purchase. Also, in some cases, a valid permit may allow the

purchaser to forgo the required state or federal background check.

b

In some cases, a waiting period applies to obtaining the permit; in other cases it applies to the

firearms purchase. Also, some waiting periods (e.g., for purchases) are mandatory, while others (e.g.,

for obtaining permits) represent the maximum time allowed for the process.

c

In some cases, reporting may be for the purpose of conducting a law enforcement background check;

in other cases, it may be for licensing or registration of the firearm. Also, in states that perform their

own firearms background checks, some information about approved and/or denied transactions is

retained by state or local agencies.

d

Permit or statutory exemption is required to purchase more than one handgun in a 30-day period.

e

Waiting period does not apply to valid license or permit holders.

f

Only information about denied transactions is retained by the state.

g

Waiting period applies to initial purchase only.
Appendix III

Information on States’ Firearms Laws

Page 53 GAO/GGD-00-56 Gun Control: Options for Improving NICS

h

Waiting period may be extended as follows: no more than 20 days total under any circumstance (HI);

indefinitely pending the disposition of open criminal proceedings (MD); an additional 30 days to verify

an applicant’s eligibility (WA); an additional 3 days to obtain felony arrest dispositions (WI).

i

Waiting period of up to 30 days to initially obtain license or permit to purchase.

j

Handgun waiting period and/or permit requirements also apply to defined assault weapons.

k

No specific time limit is placed on the handgun permit process.

l

In lieu of obtaining a permit to purchase multiple handguns, purchasers may elect to undergo a

separate background check and waiting period for each handgun purchase.

m

Handgun permit is not valid for purchases until at least 7 days have elapsed since the date of the

permit application.

Source: National Rifle Association, Compendium of State Firearms Laws (Apr. 14, 1999); Handgun

Control, What Happened in My State When the Brady Law Waiting Period Expired? (undated); BJS,

Survey of State Procedures Related to Firearm Sales, Midyear 1999 (Mar. 2000); ATF, Permanent

Brady Permit Chart (Dec. 27, 1999); state statutes, laws, and regulations.

As shown above, states are more likely to enact laws addressing the

purchase of handguns, as opposed to long guns. This distinction may, in

part, be indicative of the greater interest by some states in regulating

handguns due to a perception that handguns are more likely to pose a

public safety risk. Maryland and Washington, for example, have specific

background check and waiting period requirements that apply to handgun

purchases. However, the same requirements do not apply to long gun

purchases (with the exception of defined assault weapons in Maryland).

As table III.1 shows, 12 states have implemented systems that require

prospective firearms purchasers to obtain a separate license or permit

before purchasing a handgun.1

 Four of these states—Hawaii, Illinois,

Massachusetts, and New Jersey—also require a permit or license to

purchase long guns. States with firearms permit or license laws generally

require a waiting period and mandatory background check to obtain the

permit or license. In contrast to these state permit requirements, the Brady

Act does not require individuals to obtain a permit or license prior to

purchasing any firearms.

Other restrictions or requirements may also apply to some states’ firearms

permit or license processes. For example:

• A waiting period may apply to the permit process. In Illinois, for example,

there is up to a 30-day wait to initially obtain a Firearm Owners

Identification Card, required for the purchase of any firearm. In Hawaii, a

purchase permit is required for all firearms, but the permit may not be

issued until 14 days after application.

 

1

 Four other states require a permit or exemption only for purchases of more than one handgun within

a 30-day period.

Permits
Appendix III

Information on States’ Firearms Laws

Page 54 GAO/GGD-00-56 Gun Control: Options for Improving NICS

• Cities or counties may impose their own local firearms permit

requirements, in addition to any state requirements. New York, for

example, requires a state permit to acquire a handgun; however, New York

City requires a permit to purchase long guns as well.

• Permits may be required for multiple firearms purchases. Maryland and

Virginia, for example, do not normally require permits to purchase

handguns. However, both states have laws that require a permit to

purchase more than one handgun in a 30-day period.

Table III.1 shows that 19 states currently allow or require specific waiting

periods prior to purchasing or obtaining a permit to purchase a handgun.2

Seven of these states have enacted state waiting periods for long gun

purchases or permits as well.

Under permanent Brady, a firearm may be transferred as soon as the

background check verifies that a prospective purchaser is eligible to

purchase a firearm (or after 3 business days have elapsed without

disqualifying information being received). However, some states have

enacted mandatory waiting periods—that is, even if the purchaser is

approved, the firearm cannot be transferred until the specified time has

expired. Other states specify a maximum waiting period (up to 5 days, for

example), but the firearm can be transferred as soon as the gun dealer is

notified that the purchaser is eligible. For example:

• Maryland requires that an eligible handgun purchaser wait 7 days from the

date of the purchase before the firearm can be transferred, regardless of

when the state completes the background check.3

 If the state does not

notify the gun dealer of the purchaser’s eligibility within this time, the

firearm may be transferred after the 7 days has elapsed.

• Washington allows local law enforcement agencies up to 5 business days

to perform a handgun background check. The firearm may be transferred

as soon as the dealer is notified that the purchaser is eligible, or after the 5

days has elapsed. Also, if available records indicate that the purchaser has

an arrest for a potentially disqualifying offense, the local law enforcement

agency performing the check can automatically extend the waiting period

up to 30 days, pending receipt of disposition information that would verify

the purchaser’s eligibility to possess a firearm.

 

2

 One other state, Michigan, requires that permits be processed with due speed and diligence, but no

time limit is placed on this process.

3

 This waiting period applies to handguns and certain long guns defined by the state as assault

weapons.

Waiting Periods
Appendix III

Information on States’ Firearms Laws

Page 55 GAO/GGD-00-56 Gun Control: Options for Improving NICS

• In Illinois, as noted above, individuals must obtain a Firearm Owners

Identification Card prior to purchasing any firearm. However, once this

Identification Card is obtained, purchasers are still subject to mandatory

state waiting periods for each firearms purchase—1 day for long guns and

3 days for handguns.

Table III.1 shows that 31 states require some information about approved

firearms purchases to be reported to and retained by state or local

authorities (3 other states require only information on denied purchases be

retained). In some cases, this process involves owner registration of all

firearms—including serial number and description—with a government

authority, usually local or state police. In other cases, this process involves

recording information only about purchases from licensed gun dealers,

which may then be forwarded by the dealers to a government authority.

For example:

• In Washington, all handgun purchases are first reported to a local law

enforcement agency in the purchaser’s place of residence to determine the

purchaser’s eligibility to possess a handgun. Within 7 days of transfer of

the handgun, information about the sale—including the purchaser’s name

and description of the handgun—must also be reported to the state’s

Department of Licensing, which maintains a database of all persons who

have purchased handguns.

• Maryland requires that all handgun sales or transfers be reported within 7

days of the transfer to the Maryland State Police, which is to maintain a

permanent record of all completed sales and transfers. Dealers must

provide a copy of the written notification of the transaction, including

details about the firearm transferred—such as make, model, and caliber.

• Hawaii requires that all firearms be registered with the chief of police of

the county of the person’s place of business or residence. The registration

is to include information about the firearm (e.g., make, model, and

caliber), the source of the firearm, and the owner’s permit number. This

requirement applies to all firearms, whether purchased in the state or

previously owned and brought into the state.

In contrast, permanent Brady does not require any reporting of firearms

sales to local authorities, nor does it require owner registration of firearms.

In fact, the Brady Act specifically prohibits the establishment of any

Reporting
Appendix III

Information on States’ Firearms Laws

Page 56 GAO/GGD-00-56 Gun Control: Options for Improving NICS

registration of firearms, firearms owners, or firearms transactions, except

for those persons prohibited from receiving a firearm.4

 

4

 Under permanent Brady, firearms transactions are recorded by licensed gun dealers, and that

information is retained by the dealer on site. For those dealers who contact the FBI for NICS

background checks, some identifying information about the purchase is maintained on computer by

the FBI for up to 180 days, after which all records relating to approved transactions are to be destroyed

except the NICS transaction number and the date the number was created.
Appendix IV

Relationship Between Background Checks

and Quality of Automated Records

Page 57 GAO/GGD-00-56 Gun Control: Options for Improving NICS

In discussing the relationship between automated background checks and

waiting periods, this appendix summarizes information reported by the

Office of Technology Assessment (OTA)1

 and the Bureau of Justice

Statistics (BJS).

Before passage of the Brady Act, OTA reviewed various proposals for

making automated firearms background checks, including the use of pointof-sale instant checks similar to NICS.2

 Among other things, OTA’s review

examined the relationship between automated record checks and waiting

periods. OTA’s 1991 report noted that:

• While instant check systems already seemed practical in a few states, in

many others a waiting period of several days (and sometimes weeks) was

needed to check a combination of manual and automated criminal records.

• The average waiting period could shorten over time as more states

developed the capabilities needed for instant checks; however, this

assumed states do not retain waiting periods for other reasons—such as

cooling off or checks of noncriminal justice records.

The OTA report went on to state that:

“Waiting periods help provide the time needed for criminal record checks in many states

using whatever combination of manual and automated capabilities exists. The amount of

time required for checks is, all other things being equal,3

 inversely related to automation,

record quality, and the ability to accurately identify firearms purchasers. The more

automated and complete a state’s criminal records, and the lower the incidence of false

identification, the less the need for waiting periods for the purpose of [background]

checks.”

The OTA report compared the states of Virginia and California to illustrate

the function between waiting periods and availability of automated

records. In Virginia, the state had the ability to conduct an initial instant

check in a matter of seconds, with a relatively low level of known “false

positive” outcomes (incorrectly identifying a firearms purchaser as

prohibited) or “false negative” outcomes (failing to identify a prohibited

firearms purchaser). OTA found, for example, that about 4 out of every 100

purchasers were initially disapproved incorrectly based on false positive

hits; and that half of these were corrected within several hours or by the

 

1

 OTA, a nonpartisan congressional research agency, ceased operations on September 29, 1995.

2

 U.S. Congress, OTA, Automated Record Checks of Firearm Purchasers: Issue and Options (OTA-TCT497), July 1991.

3

 “Like the state’s population, volume of firearm sales, and resources available to conduct checks.”

OTA Report (1991)

State-to-State Comparisons
Appendix IV

Relationship Between Background Checks and Quality of Automated Records

Page 58 GAO/GGD-00-56 Gun Control: Options for Improving NICS

next business day. OTA concluded that, if this level of false positives was

judged acceptable, then the value of a waiting period for the purpose of

making a background check—as opposed to cooling off—was relatively

low.

In California, by comparison, OTA found that firearm background checks

took 4 to 7 days on average and noted further that this was part of the

justification for the state’s (at that time) 15-day waiting period. The

reasons California took longer than Virginia were as follows:

• a much larger volume of firearms background checks (almost 5 times as

many);

• a somewhat lower level of disposition reporting for recent arrests (85

percent versus 95 percent); and

• the necessity to check certain noncriminal records (e.g., mental health

commitments).

Further, OTA reported that California experienced a high initial false

positive rate—so high that an instant check system might be unacceptable,

even if technically feasible:

• About 28 of every 100 purchasers were initially disapproved, but only 1 of

the 28 was eventually confirmed as not qualified to purchase a firearm.

• Because of the state’s waiting period, the other 27 false positive hits were

corrected before the responses were sent back to the gun dealers.

• If California had an instant check system, however, the incorrect initial

disapproval would have to be provided to dealers before the purchaser’s

legal status could be fully determined.

According to OTA, the major factor in implementing a successful instant

background check system is the quality of criminal history records—that

is, reasonably complete and timely arrest and disposition information,

accessible through telecommunication and computing technology. That is,

without the appropriate criminal record infrastructure, an instant check

system could result in (1) a large number of false positive hits, frustrated

criminal records officials, and unhappy gun purchasers and (2) an

unknown number of felons and fugitives who are erroneously authorized

to, in effect, illegally purchase firearms (false negatives).

However, as difficult as instant criminal record checks may be, the

challenges posed by checking other types of records—including records

involving drug users, mental defectives, illegal aliens, citizenship

renunciants, and persons dishonorably discharged—are even greater. OTA

Checking Noncriminal

Records
Appendix IV

Relationship Between Background Checks and Quality of Automated Records

Page 59 GAO/GGD-00-56 Gun Control: Options for Improving NICS

estimated that as many as 20 million persons fell into one of these

categories and that records did not even exist on perhaps four-fifths of

these people. For those records that did exist, OTA estimated that

probably half were not automated and many were subject to complicated,

conflicting laws, rules, and traditions on disclosure. OTA noted, for

example, that:

• Over 14 million persons were unlawful users of controlled substances; but

only about 3 percent were included in some kind of record system (not

counting those that may be felons or fugitives).

• About 2.7 million persons were estimated to be illegal aliens, but only

about one-fourth were listed in any record system.

• Another 2.7 million persons were estimated to be mentally defective

(including only those persons involuntarily committed to mental

institutions); and, while many of these persons were listed in state mental

health databases, the completeness and accuracy of these records were

largely unknown, and most of the records were not automated.

OTA noted that the outlook was not good for including all disqualifying

categories in routine firearms purchase record checks:

• Illegal drug users and illegal aliens posed perhaps insurmountable

problems, because most were not included in any record system.

• Records on citizenship renunciants and persons dishonorably discharged

were relatively complete and accessible (through the Departments of State

and Defense) but made up an insignificant portion of all disqualifying

records.

• Involuntarily committed mental patients might eventually be checked on a

systematic basis, but substantial record automation and quality

improvement would be needed in most states. Voluntary commitments,

which accounted for the vast majority of mental cases, would be much

more difficult and controversial to check.

OTA further concluded that, depending on the extent to which background

checks for all disqualifying categories are to be conducted, a lengthy

waiting period may be necessary to locate and search whatever records

exist.

In April 1999, BJS published the data from its most recent periodic survey

on the status of state criminal history records.4

 The survey involved 53

 

4

 U.S. Department of Justice, BJS, Survey of State Criminal History Information Systems, 1997: A

Criminal Justice Information Policy Report (NCJ-175041), April 1999.

BJS Report (1999)
Appendix IV

Relationship Between Background Checks and Quality of Automated Records

Page 60 GAO/GGD-00-56 Gun Control: Options for Improving NICS

jurisdictions (all 50 states plus Washington, D.C.; Puerto Rico; and the U.S.

Virgin Islands), and the results were based on data that were current as of

December 31, 1997. The survey addressed various issues, including the

quantity and quality of records5

 held in criminal history databases, the level

of automation of the criminal history records, and the level and timeliness

of disposition reporting to criminal history repositories.

According to BJS, most criminal history records are either automated and

quickly accessible or can be identified through state pointer indexes. BJS

reported that, as of December 31, 1997, over 54.2 million criminal history

records were held in states’ criminal history repositories, of which about

87 percent were automated. The remaining 13 percent, approximately 6.8

million records, were not automated.6

 Despite not being automated, the

existence of these records can still be identified during a background

check by accessing states’ master name indexes—an identification index

that includes names and other identifiers for all persons about whom a

criminal history record is held. Forty-five of the 52 reporting jurisdictions

had fully automated master name indexes, and 5 others had partially

automated master name indexes. Some indexes may also include “felony

flags,” which quickly indicate whether the record subject has an arrest or

conviction for a felony offense. An automated master name index is the

key to rapidly identifying persons who may have criminal records for

purposes such as presale firearms checks.

A large portion of criminal history records do not contain information

about the disposition of the case. BJS reported that central repositories in

only 7 jurisdictions received court disposition information (i.e., sentencing

or other final settlement of a criminal case) for 100 percent of their felony

arrest records. Conversely, central repositories in 7 other jurisdictions

received dispositions for less than 50 percent of their criminal history

records. During a background check, a “hit” on a criminal history record

that does not include disposition information (e.g., whether an arrest

resulted in a conviction) requires that the checking authority do

additional—sometimes manual—research to determine the outcome of the

case. This is particularly important during a firearms background check,

since the simple existence of a felony arrest (without a conviction) does

not disqualify the purchaser from obtaining a firearm under federal law.

 5

 A criminal history record is a record that includes individual identifiers and describes an individual’s

arrests and subsequent dispositions.

6

 Maine and the U.S. Virgin Islands had no automated criminal history files.

Quantity and Accessibility

of Records

Completeness of Records
Appendix IV

Relationship Between Background Checks and Quality of Automated Records

Page 61 GAO/GGD-00-56 Gun Control: Options for Improving NICS

There is a significant time lag in entering disposition information (and to a

lesser extent arrest information) into criminal history repositories. BJS

reported that, in 1997 it took an average of 42 days between the time of an

individual’s final court disposition and the receipt of that information at

the state criminal history repository. Although the majority of responding

jurisdictions received disposition information within 30 days of the

outcome, 1 state—Pennsylvania—reported that such receipt took an

average of 360 days. Further, although the average number of days

between receipt of the disposition information and entry in the criminal

history databases was 33, in 2 states—Indiana and Minnesota—it took an

average of 180 days. To illustrate the magnitude of the problem, 26

jurisdictions indicated they had backlogs in entering disposition data into

criminal history databases. For example, Louisiana reported 180,000

dispositions partially or wholly unprocessed and estimated that 4,500

person days would be needed to eliminate the backlog. In addition, 5 other

states reported backlogs of 100,000 or more dispositions. Because of this

time lag, at any given point in time, a criminal history background check

(such as NICS) will not have access to all the records necessary to

accurately determine an individual’s criminal history.

Regarding the quality of state criminal history records, BJS concluded that

the key concern is the completeness of records and the extent to which

records include dispositions as well as arrest and charge information.

Other concerns included the timeliness of data reporting to criminal

history repositories and the timeliness of data entry by the repositories. In

relating the quality of criminal history records with the November 1998

implementation of NICS, BJS further stated that the levels of coverage,

completeness, accuracy, and accessibility of the state criminal history

information systems can directly affect the effectiveness and efficiency of

NICS.

The National Criminal History Improvement Program (NCHIP) is a longterm and comprehensive federal effort, administered by BJS, to improve

the quality of automated criminal history records. Begun in 1995, NCHIP

has provided about $293 million (including about $43 million in August

1999) in grant funding to help states build an accurate and useful national

system of criminal records to, among other things, facilitate background

checks on persons attempting to purchase firearms. Relevant to firearms

background checks, NCHIP funds can assist states to

• establish programs and systems to facilitate full state participation in III

and NCIC;

• develop systems to facilitate full participation in NICS;

Timeliness of Records

Potential Impact of Criminal

History Records on NICS

Improving the Quality

of Automated Records
Appendix IV

Relationship Between Background Checks and Quality of Automated Records

Page 62 GAO/GGD-00-56 Gun Control: Options for Improving NICS

• ensure that noncriminal history records information systems relevant to

firearms eligibility determinations become available and accessible to

NICS;

• improve the level of automation, accuracy, and completeness of records,

including arrest and disposition reporting;

• identify, classify, collect, and maintain records of protection orders,

warrants, arrests, and convictions of persons violating protection orders so

as to protect victims of stalking and domestic violence;

• support court-based criminal justice information systems that promote

reporting of dispositions; and

• establish domestic violence offender identification and information

systems.

In its fiscal year 1999 NCHIP program announcement, BJS identified three

specific program priorities, all of which are directly related to improving

the efficiency and effectiveness of NICS:

• Commitment to full implementation of NICS – BJS noted that states are

encouraged to serve as full participants in NICS in order to (1) allow

access to the most complete and up-to-date state criminal records and

records of noncriminal factors and (2) utilize state personnel who can best

interpret criminal records. In support of NICS, fiscal year 1999 NCHIP

funds were available to cover costs associated with participating in NICS

and to ameliorate any problems that were delaying instant responses to

firearms dealers’ background check inquiries.

• Commitment to participation in III – BJS noted that III participation by

states was critical to ensuring that the most accurate and complete

criminal records are available instantly for NICS firearms checks. This

priority required states that were not III members to identify problems

precluding participation and to focus 1999 NCHIP funds on activities that

furthered this goal.

• Commitment to support courts’ development of record systems – BJS

stressed the importance of NICS having access to computerized criminal

history records complete with dispositions, as well as immediate statewide

and interstate access to domestic violence protection orders. In

recognizing the importance of the courts in this effort, 1999 NCHIP funding

plans were to help ensure that adequate attention was directed to help the

courts make this information available on a complete and immediate basis.
Appendix IV

Relationship Between Background Checks and Quality of Automated Records

Page 63 GAO/GGD-00-56 Gun Control: Options for Improving NICS

In a February 2000 report7 on NCHIP and two other federally funded

programs to improve criminal history records, BJS reported that

automation has made records available on a more timely basis and that

these records have become more accessible and useful as a result of

improvements in automated systems and record completeness. However,

linking arrest and disposition records continues to pose problems

stemming from (1) delays in rendering dispositions in court and

communicating those dispositions to the state’s criminal history repository

and (2) long-term difficulties in obtaining 100 percent of felony

dispositions and linking them to the appropriate felony arrest.

Regarding NICS, BJS reported that more firearms sales to ineligible

purchasers may occur under NICS than during the interim provisions of

Brady, in part, because the majority of states are not points of contact

under NICS. In these other states (where the FBI performs NICS

background checks), the FBI would not have access to the more complete

state-level criminal records and may not be able to verify certain nonfelon

information—such as mental health information. As a result, the FBI NICS

checks are less likely to uncover disqualifying information than either state

NICS checks or checks performed under interim Brady.

BJS also reported that the identification of nonfelons ineligible to purchase

firearms—such as persons with a history of mental illness or drug abuse,

persons subject to restraining orders, and persons who have committed

domestic violence misdemeanors—is expected to remain problematic. For

example, the dissemination of mental health and drug abuse information

raises legal and ethical questions about the rights to privacy, and new

enabling statutes may be required to identify and access such information.

Further, states may not be able to easily identify those restraining orders—

among the several types of orders that exist—that are considered Brady

disqualifiers. Finally, domestic violence misdemeanors, which in the past

were often categorized simply as assaults, may be difficult to extract from

criminal history records.

 

7

 U.S. Department of Justice, BJS, Continuing Criminal History Records Improvement Evaluation: Final

1994-98 Report (NCJ-179768), February 2000. This report evaluated the effects of three federal

programs: the BJS-funded Criminal History Records Improvement Program; the 5-percent set-aside of

the Edward Byrne Memorial State and Local Law Enforcement Assistance Program, funded by the

Bureau of Justice Assistance; and the BJS-funded National Criminal History Improvement Program.
Appendix V

Objectives, Scope, and Methodology

Page 64 GAO/GGD-00-56 Gun Control: Options for Improving NICS

Senator Charles E. Schumer, Ranking Minority Member, Subcommittee on

Criminal Justice Oversight, Senate Committee on the Judiciary and

Senator Richard J. Durbin requested that we provide information about the

effectiveness of the Brady Act’s phase I (interim Brady) and phase II

(permanent Brady) provisions in preventing the sale of firearms to

prohibited individuals.

Under interim Brady—which went into effect February 28, 1994, and

applied to handguns only—background checks generally were to be

conducted by the chief law enforcement officer in the purchaser’s

residence community. During phase I, handguns were not to be transferred

for 5 business days (a waiting period), unless the dealer received an

approval from the applicable state or local chief law enforcement officer

(CLEO) before that time. If the dealer was not contacted within the 5-day

period, the dealer was allowed to proceed with the sale unless the dealer

had reason to believe the transaction would be unlawful.

Under permanent Brady—effective November 30, 1998, and applicable to

all firearms, both handguns and long guns (e.g., rifles and shotguns)—

background checks generally are to be conducted using a computerized

system, the National Instant Criminal Background Check System (NICS),

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 law. However, if the background check

is not completed within 3 business days, the sale is allowed to proceed by

default (a “default proceed”).

As agreed with the requesters, our work addressed the following

questions:

• Regarding access to databases or other information sources for conducting

background checks to identify individuals prohibited by law from receiving

firearms, how does permanent Brady compare with interim Brady? For

instance, under permanent Brady, does the FBI have access to the same

types of information that were available to state and local CLEOs under

interim Brady? If not, what steps are being taken to enhance access to

such information?

• Under permanent Brady, depending on the specific state, either the FBI or

a designated state law enforcement agency (e.g., the state police) uses

NICS to conduct background checks. What are the advantages and

disadvantages of NICS background checks being conducted by a

designated state agency versus such checks being conducted by the FBI?

Objectives
Appendix V

Objectives, Scope, and Methodology

Page 65 GAO/GGD-00-56 Gun Control: Options for Improving NICS

• Under permanent Brady, to what extent have default proceeds resulted in

firearms being sold to prohibited individuals? To prevent or minimize such

transfers, what are the options that policymakers can consider?

In comparing FBI NICS background checks with local checks conducted

under interim Brady and state checks conducted under permanent Brady,

we our did work at the FBI’s NICS Operations Center, as well as at law

enforcement agencies in selected states. We also reviewed studies on

interim Brady implementation that were issued by the Bureau of Justice

Statistics (BJS) and us.

To obtain information about the NICS background check process, we met

with FBI officials at the FBI’s NICS Operations Center (in Clarksburg, WV),

which conducts presale background checks involving (1) firearms, both

handguns and long guns, purchased from licensed dealers in 24 states and

(2) long guns purchased from licensed dealers in 11 other states.1

To obtain state and local perspectives on interim Brady and assess the

advantages and disadvantages of NICS background checks compared with

state background checks, we interviewed responsible officials at state and

local law enforcement agencies in six selected states—Colorado, Georgia,

Maryland, Texas, Virginia, and Washington.

To determine whether permanent Brady’s 3-day period for conducting

background checks has resulted in firearms being sold to prohibited

persons, we reviewed previous congressional and Bureau of Justice

Statistics studies on automated background checks. We also analyzed FBI

NICS transactions to determine the length of time required to verify

purchasers’ qualifications, the number of firearms sold to persons later

found to be prohibited, and the reasons why NICS transactions were

delayed beyond 3 days.

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

documentary evidence—such as agency statistics—provided by FBI and

other agency officials. We did not fully assess the reliability or accuracy of

the data provided to us by agency officials. However, we did discuss the

sources of the data with agency officials. We also worked with agency

officials to reconcile any discrepancies we identified in the data. In

addition, the FBI did not have visibility over all NICS-related national

 

1

 As discussed in appendix I, the 24 states are referred to as “nonparticipants” in NICS, and the 11

states are referred to as “partial participants.” In the other 15 states (“full participants”), licensed

dealers are to contact a designated state point of contact (e.g., state police), who will conduct the NICS

check and determine whether the transfer would violate state or federal law.

Scope and

Methodology of Our

Work
Appendix V

Objectives, Scope, and Methodology

Page 66 GAO/GGD-00-56 Gun Control: Options for Improving NICS

statistics (including those transactions handled by point of contact states),

such as the number of denials by prohibited categories and the number of

denials successfully appealed. For these types of data, the FBI was able to

provide us statistics covering only those background checks conducted by

the FBI—and not those conducted by state agencies in full-participant and

partial-participant states.

The following sections present more details about our scope and

methodology for each of the objectives.

Our work focused on identifying (1) data and databases used by law

enforcement agencies during interim Brady to identify persons that were

prohibited from purchasing firearms and (2) differences between

information accessed under interim Brady and information now accessed

by the FBI under NICS. We specifically looked for any differences in

access to certain nonfelony, noncriminal records—such as those indicating

drug abuse or mental disability—that would disqualify persons from

purchasing firearms.

We first reviewed existing studies and reports about background checks

performed under interim Brady. Our previous report on implementation of

the Brady Act2

 described the interim Brady background check process in

general, specific processes followed in several selected jurisdictions, and

the types of data and databases accessed by CLEOs during background

checks. We also contacted BJS, which has published three reports

covering interim Brady:

• Presale Firearm Checks (NCJ-162787), February 1997.

• Presale Handgun Checks, 1997 (NCJ-171130), June 1998.

• Presale Handgun Checks, the Brady Interim Period, 1994-98 (NCJ-175034),

June 1999.

To obtain additional state and local perspectives on interim Brady

background checks, we visited law enforcement officials in six states—

Colorado, Georgia, Maryland, Texas, Virginia, and Washington. As shown

in table V.1, we judgmentally selected these locations in order to reflect a

 

2

 Gun Control: Implementation of the Brady Handgun Violence Prevention Act (GAO/GGD-96-22, Jan.

25, 1996).

Scope and Methodology of

Our Work Regarding NICS

Compared With Interim

Brady
Appendix V

Objectives, Scope, and Methodology

Page 67 GAO/GGD-00-56 Gun Control: Options for Improving NICS

mix of CLEO types under interim Brady and state participation types under

NICS.3

 More specifically:

• Colorado was a single-state instant check CLEO under interim Brady,

became a full-participant state under NICS, then switched to the

nonparticipant category, and now is back to the full-participant category.

• Georgia began as a local CLEO under interim Brady, switched to a singlestate instant check, and now is a full-participant state under NICS.

• Maryland was a single-state CLEO under interim Brady and is a partialparticipant state (handgun purchases) under NICS.

• Texas was a local CLEO under interim Brady and is a nonparticipant state

under NICS.

• Virginia was a single-state instant check CLEO under interim Brady and is

a full-participant state under NICS.

• Washington was a local CLEO under interim Brady and is a partialparticipant state (handgun purchases) under NICS.

Interim Bradya---------- Permanent Bradyb ----------

State

Brady

state

Bradyalternative

state

Point of

contact state

(full

participant)

Point of

contact state

(partial

participant)

FBI state

(nonparticipant)

Colorado • • c

Georgia d

• •

Maryland • •

Texas • •

Virginia • •

Washington d

• •

a Beginning February 28, 1994, interim Brady allowed CLEOs at the state or local level 5 days to

conduct presale background checks on purchasers of handguns. By the end of Phase I, 27 states

(“Brady states”) were subject to interim Brady’s waiting period requirements because no alternative

system was in place to perform background checks. However, 23 states (“Brady-alternative states”)

had systems in place (permit systems or other procedures for operating background check systems)

that ATF determined were acceptable alternatives to the interim Brady background check and waiting

period.

b Beginning November 30, 1998, permanent Brady allowed states 3 days to conduct presale

background checks on purchasers of firearms by relying on the new FBI NICS system, or by using

their own state systems. Currently, 15 states (point of contact - full participants) conduct NICS checks

for all firearm purchases and for permits for handguns and long guns. Eleven states (point of contact -

partial participants) perform NICS checks for handgun permits and purchases while the FBI performs

NICS checks for long gun purchases. The FBI performs NICS checks on both handguns and long

guns for the remaining 24 states (FBI states – nonparticipants).

c

Colorado was a nonparticipant state from April 1, 1999, through July 31, 1999.

d

Georgia and Washington began as Brady states, but later became Brady-alternative states.

 

3

 Appendix I provides more information about the state participation categories under interim Brady

and NICS.

Table V.1: Brady Status of States

Selected for Site Visits
Appendix V

Objectives, Scope, and Methodology

Page 68 GAO/GGD-00-56 Gun Control: Options for Improving NICS

Source: BJS, Presale Handgun Checks, the Brady Interim Period, 1994-98 (NCJ-175034), June 1999;

FBI, National Instant Criminal Background Check System: The First Seven Months (November 30,

1998 – June 30 1999); and Gun Control: Implementation of the Brady Handgun Violence Prevention

Act (GAO/GGD-96-22, Jan. 25, 1996).

To obtain information about how access to data and databases under NICS

differs from that available under interim Brady, we first discussed these

issues with officials at the FBI’s NICS Operations Center. During our visits,

we interviewed applicable managers and reviewed relevant documents

related to the establishment of NICS and the types of data accessed during

the NICS background check. We also obtained from the FBI a description

of the types of data available through the newly created NICS Index

database and the number of records in the database.

Our work focused on identifying the advantages and disadvantages of state

agencies performing NICS background checks versus the FBI performing

those checks. We specifically looked for any differences in (1) access to

background check information and (2) ability to interpret applicable

federal and state firearms laws. During the course of our work, we

attempted to identify factors that could preclude states from becoming full

participants in NICS.

As noted above, we met with FBI NICS Operations Center officials to

obtain information about the NICS background check process. During our

visits, we interviewed applicable managers and reviewed relevant

documents related to the establishment and operation of NICS, including

the types of data accessed during the NICS background check and how

NICS examiners verify a purchaser’s eligibility under federal and state law.

Five of the six states we visited were either full or partial participants

under NICS. At these locations, we interviewed state law enforcement

officials and documented the extent to which these states accessed data

for all of the Brady disqualifying factors when performing background

checks. We also identified examples of NICS transactions where the states

had access to certain disqualifying information that the FBI would not

have had and the reason for disparities.

To document whether states may be better able to interpret federal and

state firearms laws, we identified examples of variations and complexities

in state firearms laws during our state visits. We obtained a 2000 report4

 by

BJS that described state procedures related to firearms sales. We also

 

4

 U.S. Department of Justice, BJS, Survey of State Procedures Related to Firearm Sales, Midyear 1999

(NCJ-179022), March 2000.

Scope and Methodology of

Our Work Regarding FBI

Compared With State

Agencies Under NICS
Appendix V

Objectives, Scope, and Methodology

Page 69 GAO/GGD-00-56 Gun Control: Options for Improving NICS

obtained FBI data on the total number of NICS denials that were appealed,

the number of denials that were reversed through appeal, and the reasons

why the FBI reversed those denials. We used these data to identify the

extent to which FBI reversals are due to misinterpretation of criminal

history records. For additional support, we also obtained examples from

selected ATF field offices in the locations we visited documenting FBI

NICS denials that had been referred for investigation, but which ATF later

found had been denied based on incorrect interpretation of state law.

Our work focused on (1) identifying the number of NICS background

checks that were delayed beyond 3 business days, (2) determining how

many of these checks resulted in firearms being sold to persons later

found to be prohibited by the FBI, and (3) documenting the reasons why

such delays take place. During the course of our work, we attempted to

identify options for reducing the incidence of firearms being sold to

prohibited persons.

We first reviewed existing studies and reports about the relationships

between background checks, waiting periods, and automated records. We

obtained a 1991 study5

 by the Office of Technology Assessment6 about the

need for background check waiting periods to facilitate accurate checks of

automated records. We obtained a 1999 report7

 by BJS that described the

extent to which state criminal history records are automated, complete,

and accurate. We also obtained a 2000 report by BJS that described efforts

to improve the quality of state criminal history records through federal

grant programs.8

In addition to having various telephone discussions with officials at the

FBI’s NICS Operations Center, we also visited the Center during June and

September 1999. We interviewed responsible FBI officials and reviewed

relevant NICS documentation, including the NICS Standard Operating

Procedures Manual, Point of Contact State Manual, and FFL NICS Manual.

 

5

 U.S. Congress, OTA, Automated Record Checks of Firearm Purchasers: Issues and Options (OTATCT-497), July 1991.

6

 OTA, a nonpartisan congressional research agency, ceased operations on September 29, 1995.

7

 U.S. Department of Justice, BJS, Survey of State Criminal History Information Systems, 1997: A

Criminal Justice Information Policy Report (NCJ-175041), April 1999.

8

 U.S. Department of Justice, BJS, Continuing Criminal History Records Improvement Evaluation: Final

1994-1998 Report (NCJ-179768), February 2000.

Scope and Methodology of

Our Work Regarding 3-Day

Background Check Period

Under NICS
Appendix V

Objectives, Scope, and Methodology

Page 70 GAO/GGD-00-56 Gun Control: Options for Improving NICS

We also obtained the FBI’s 1999 status reports on the implementation of

NICS.9

For the period beginning November 30, 1998, (when NICS began

operations) through September 30, 1999, we obtained various NICS

statistics from the FBI’s NICS Operations Center, such as the number of

background checks performed, the number of transactions denied and the

reasons for denial, and the number of denials successfully appealed. To

specifically document the length of time needed to complete NICS

transactions and the reason why transactions are delayed, we also

obtained the following data:

• For all denied NICS transactions, the length of time the FBI needed to

make the final decision to deny the firearm purchase;

• For those transactions where the FBI could not make a determination

within 3 business days, the number of firearms released to prohibited

persons and the length of time the FBI needed to deny the firearm

purchase and initiate the firearm retrieval process;

• The total number of NICS denials that were appealed, the number of

denials that were reversed through appeal, and the reasons why the FBI

reversed those denials.

 

9

 U.S. Department of Justice, FBI, National Instant Criminal Background Check System (NICS): The

First Seven Months (November 30, 1998 – June 30, 1999); and U.S. Department of Justice, FBI, National

Instant Criminal Background Check System (NICS): Operations Report (November 30, 1998 –

December 31, 1999).
Appendix VI

GAO Contacts and Staff Acknowledgments

Page 71 GAO/GGD-00-56 Gun Control: Options for Improving NICS

Laurie E. Ekstrand, (202) 512-8777

Danny R. Burton, (214) 777-5600

In addition to the above, David P. Alexander, Philip D. Caramia, Geoffrey

R. Hamilton, Mary Lane Renninger, Dennise R. Stickley, and Ellen T. Wolfe

made key contributions to this report.

GAO Contacts

Acknowledgments
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