GUN CONTROL

Improving the National

Instant Criminal

Background Check

System

Statement for the Record of Laurie E. Ekstrand

Director, Administration of Justice Issues

General Government Division

United States General Accounting Office

GAO Testimony

Before the Committee on the Judiciary

U.S. Senate

For Release on Delivery

Expected at

10:00 a.m. EDT

Wednesday

June 21, 2000

GAO/T-GGD-00-163

Statement 

Gun Control: Improving the National Instant

Criminal Background Check System

Page 1 GAO/T-GGD-00-163

Mr. Chairman and Members of the Committee:

I am pleased to be here today to discuss selected topics from our two

recently completed reviews1

 pertaining to the establishment and operation

of the National Instant Criminal Background Check System (NICS). NICS

was established in November 1998 as mandated by the Brady Handgun

Violence Prevention Act.2

My testimony today will focus on four aspects of NICS: (1) system

availability and responsiveness; (2) type of information available under

NICS compared to that available to state and local law enforcement

agencies prior to NICS; (3) advantages and disadvantages of NICS

background checks being conducted by designated state agencies rather

than the FBI; and (4) the extent to which transactions under NICS have

resulted in firearms being sold to persons ineligible to possess a firearm.

In our February and April 2000 reports, we noted the following:

• NICS set a goal of being available 98 percent of its scheduled operating

time. It met this goal 4 of the months and did not meet it 8 of the months

between November 30, 1998, and November 30, 1999. During this time

period, about 72 percent of callers received a proceed response within

minutes; the other 28 percent were initially delayed. For about 80 percent

of the delayed transactions, FBI examiners took 2 hours or less from the

time they received the transaction information to provide a proceed or

deny response.

• Establishment of the newly created NICS Index database provides

centralized access to data that were not available to state and local

agencies prior to NICS. However, the NICS Index does not contain all

potentially disqualifying records.

• State agencies are generally better positioned to perform NICS background

checks than the FBI because they may have access to additional data and

be better able to interpret their own state records and laws. However,

certain barriers have prevented most states from becoming full

participants in NICS.

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

were sold guns were later determined by the FBI to be prohibited from

owning them. These transactions resulted from NICS background checks

 

1

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

(GAO/GGD/AIMD-00-64, Feb. 29, 2000); and Gun Control: Options for Improving the National Instant

Criminal Background Check System (GAO/GGD-00-56, Apr. 12, 2000).

2

 The Brady Act, Public Law 103-159 (1993).
Statement

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Page 2 GAO/T-GGD-00-163

that were not completed by the FBI within 3 business days and, according

to the provisions of the Brady Act, the sales were then allowed to proceed

by default.

Recognizing the potential public safety risks associated with prohibited

persons being allowed to purchase firearms, we identified three options to

improve NICS by minimizing the number of transactions involving

prohibited persons that are allowed to proceed by default.

Effective February 28, 1994, the interim provisions of the Brady Act

required licensed firearms dealers to request a presale background check

on handgun purchasers. These checks generally were to be conducted by

the chief law enforcement officer (CLEO)3

 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 by the end of the 5-day period,

the dealer could make the sale unless the dealer had reason to believe the

transaction would be unlawful.

Beginning on November 30, 1998, the permanent provisions of the Brady

Act became effective with implementation of NICS. Managed by the

Federal Bureau of Investigation (FBI), NICS is used to make presale

background checks for purchases from licensed firearms dealers of all

firearms, not just handguns.4

Unlike the decentralized background check process under interim Brady,

NICS allows the FBI and states to check a person’s eligibility to purchase

firearms using a single, computerized search. The NICS background check

provides centralized access to criminal history and other potentially

disqualifying records by querying three national databases:

• National Crime Information Center 2000 (NCIC 2000). Predating NICS,

NCIC 2000 is the nation’s most extensive computerized criminal justice

information system. Among other things, NCIC 2000 contains records on

wanted persons and persons under protection or restraining orders.

 

3

 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.

4

 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 terms “buyer” or “purchaser,” we are also

referring to other firearms recipients, such as individuals redeeming pawned firearms.

Background

NICS Implementation
Statement

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Page 3 GAO/T-GGD-00-163

• Interstate Identification Index (III). Also pre-dating NICS, III is an indexpointer system for the interstate exchange of criminal history records.

Among other things, III records include information on persons arrested or

convicted of felony and/or misdemeanor criminal offenses.

• NICS Index. A new database created specifically for NICS, the NICS Index

contains information provided by federal and state agencies specifically

identifying persons prohibited under federal law from receiving or

possessing a firearm. The NICS Index includes records on unlawful drug

users or addicts, illegal or unlawful aliens, persons who were dishonorably

discharged form the military, persons who have renounced their U.S.

citizenship, and persons who have been adjudicated or committed as a

mental defective.

To initiate background checks on persons attempting to purchase

firearms, licensed firearms dealers contact either the FBI or designated

state agencies (in those states willing to participate as NICS liaisons).

Generally, depending upon the state in which the firearms dealer is

conducting business and the type of firearm purchased, there are three

methods of performing background checks:

• In the 24 so-called “nonparticipant” states, dealers are to contact the FBI

for NICS background checks on all firearms transfers (permits or

purchases). This category also includes the District of Columbia, Puerto

Rico, and the U.S. Virgin Islands.

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

or local agency—for example, the state police—which then conducts the

NICS background check.

• In the remaining 11 “partial-participant” states, dealers 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.

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

full participants. Although the number of full-participant states is 15, the

group includes 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

state agencies.

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, the Brady Act allows law enforcement agencies up to 3

State Participation in NICS

3 Days Allowed to Approve

or Deny NICS Transactions
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business days to complete the background check. If the background check

cannot be completed within 3 business days (e.g., if available records in

the national databases are incomplete and the buyer’s eligibility is not

verified within 3 days), the purchase is then allowed to proceed—that is, to

proceed by default.

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

agencies conducted about 8.8 million background checks using NICS. FBI

data indicated that 2 percent (about 81,000) of the FBI’s 4.4 million

background checks resulted in denials. That is, the potential buyer was

found to be disqualified under federal or state law from purchasing or

possessing a firearm because, for example, criminal history records

showed a felony conviction.

The NICS system is scheduled to be open for business 17 hours a day, 7

days a week. The FBI has specified a NICS availability requirement of 98

percent. That is, the FBI expects NICS to operate satisfactorily 98 percent

of the scheduled operating time. During the 12-month period from

November 30, 1998, to November 30, 1999, NICS met or exceeded its

availability requirement of 98 percent during 4 months. During the other 8

months, availability ranged from 92 percent to 97.7 percent, for an average

of 95.4 percent. July 1999 marked the lowest point in availability during

this time period, which was immediately preceded by the 4 months in

which the availability requirement was met. During this 12-month period,

no clear pattern of availability emerged.

FBI data show that for about 72 percent of the background checks

conducted by the FBI as of November 30, 1999, NICS provided approval

responses within 30 seconds after the purchaser’s identifying information

was input into the system. An FBI analysis of a sample of the 28 percent

that were delayed responses concluded that most of these responses (80

percent) were resolved within 2 hours or less, and that the remainder (20

percent) took several hours or days to resolve. After 3 business days

without a resolution, the transaction is considered to be a default proceed,

and the gun dealer can then legally transfer the firearm without an

affirmative response from the FBI as to the purchaser’s eligibility. We

discuss default proceed transactions in more detail later in this testimony.

NICS System

Availability and

Responsiveness
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Prior to NICS, 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. In

addition, many CLEOs also had access to state or locally maintained data

on some of the other firearm disqualifying factors—e.g., mental illness,

court restraining orders, and domestic violence misdemeanors—either

through statewide databases or local databases (such as city or county

criminal justice systems). However, CLEOs did not access specific data

files or databases for other nonfelony, noncriminal firearm disqualifiers—

such as illegal or unlawful aliens, dishonorable discharges, and citizenship

renunciations.

With the implementation of NICS, all of the firearm disqualifying

categories can now be checked in a single, computerized search—to the

extent automated records are available. That is, NICS continues to provide

centralized access to criminal history and other records (such as domestic

violence misdemeanors and restraining orders) through NCIC 2000 and III.

In addition, NICS also provides simultaneous access to additional

nonfelony, noncriminal disqualifying records—records that were not

centrally available to CLEOs under interim Brady—through the newly

established NICS Index.

Despite improving access to firearm disqualifying records with the

establishment of the NICS Index, NICS has not yet reached its full

potential for performing firearms background checks. For example, 1 year

after the implementation of NICS, the NICS Index database had relatively

few records for most of the categories. As of November 30, 1999, the total

number of records in the NICS Index was just over 1 million. However, the

vast majority of those records (about 90 percent) covered just one

category (illegal or unlawful aliens) and were provided by one federal

agency, the Immigration and Naturalization Service (INS). In addition, the

total represents only about a 10-percent increase over the number of

records the NICS Index contained when it became operational 1 year

earlier. And, nearly all of the increase involved records from just two

federal agencies—INS and the Department of Veterans Affairs. Very few

disqualifying records were obtained from the states during this time.

Because of certain barriers, 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 other agencies or providing

NICS Index Provides

Centralized Access to

More Data but Has Not

Reached Its Full

Potential

NICS Index Does Not

Include All Disqualifying

Records
Statement

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them to the NICS Index. 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.

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 told us that the FBI’s role in this

process is one of outreach—that 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.

As of December 1999, FBI officials summarized their ongoing outreach

efforts as follows:

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

any relevant federal records that could be incorporated into the NICS

Index. Approximately half of the agencies had responded; the remaining

agencies were being contacted by telephone.

• For state records, the FBI had drafted a letter to be sent to all states

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

This letter was still being reviewed internally.

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

participates in NICS to further inquire about records that might be

available for submission to the NICS Index.

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

to address the issue of how state records would be used in the NICS Index

and allow states to delete their records if NICS’ purpose were ever

expanded beyond firearms background checks.

According to FBI officials, once initial outreach efforts were completed,

the FBI would decide the types of additional action that were needed to

increase the number of federal and state records in the NICS Index.

However, the officials noted that, since the FBI cannot compel federal and

state agencies to identify records and submit them to the NICS Index, the

FBI’s outreach efforts must be viewed as a continuous and cooperative

process.

FBI Continuing Its Efforts

to Populate the NICS Index

Database
Statement

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Under permanent Brady, states generally are better positioned than the

FBI to conduct NICS background checks. States have access to all of the

information available to the FBI through NICS, plus some state agencies

can access 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.

In some cases, state agencies participating in NICS have access to more

databases and/or records than the FBI. Under NICS, when the FBI or a

state agency performs a firearm purchase background check, disqualifying

records are automatically checked using NCIC 2000, III, and the NICS

Index. The FBI’s initial automated NICS check is limited to records in

these three databases.5

 However, some states have automated access to

additional databases or records available within their state, which cannot

be accessed by or shared with other states or the FBI. As a result, this

additional access to records may improve the states’ ability to identify

persons ineligible to purchase firearms. The following examples illustrate

situations where state agencies conducting NICS background checks could

access more firearm disqualifying data than the FBI:

• Mental Disability. Virginia, a full-participant state under NICS, has a state

database that identifies individuals within the state who have mental

health disabilities or have been adjudicated mentally incompetent. This

state database is available only to the Virginia State Police for firearms

background check purposes, and the database cannot be accessed by

other states or the FBI either directly or through the NICS Index.

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. If the FBI had been

conducting Virginia’s firearms background checks during this time, that

information would not have been accessible to them.

• Fugitives. The wanted-persons file in NCIC 2000—which is queried during

a NICS background check—may not contain records on every state arrest

warrant issued. According to FBI officials, each individual agency that

issues warrants is responsible for entering its warrants into NCIC 2000.

Consequently, there is no way to tell how many outstanding warrants have

been issued by state and local agencies but not entered into NCIC 2000.

However, state officials have told us they are able to access their own

state’s outstanding warrants through state or local databases, regardless of

whether the warrant had been entered into NCIC 2000.

 

5

 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

States May Have Access to

More Disqualifying Records
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Page 8 GAO/T-GGD-00-163

• Restraining Orders. The restraining/protective order file in NCIC 2000—

also queried during a NICS background check—may not contain records

on every active state restraining order. According to FBI officials, the

situation is similar to fugitive warrants in that each individual agency is

responsible for entering restraining orders into NCIC 2000. Consequently,

there is no way to tell how many orders have been issued by state and

local agencies but not entered into NCIC 2000. Further, incompatibilities

between state records and NCIC 2000 records requirements may prevent

some states from entering their orders into NCIC 2000. However, state

agencies that conduct background checks would generally have access to

state or local databases where the restraining order information was

originally recorded. In a well-publicized incident in Colorado last year, the

FBI 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 NICS, 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.6

 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.

State agencies participating in NICS may be better able to interpret their

own state’s laws to determine a person’s eligibility to purchase firearms

than the FBI. 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). As such, in performing firearms background checks, state

agencies may be better able to understand how their own state’s 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

analysis of appeals decisions regarding firearms-purchase denials made by

the FBI under NICS. For example, during the first year of NICS operations:

 

6 Although currently a full-participant state 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 and later permanently reauthorized by the state legislature.

States May Be Better Able

to Interpret State Laws
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Page 9 GAO/T-GGD-00-163

• About 22 percent (2,710) 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.

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

include such information in the Law Enforcement On-Line Internet site.7

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). However, at the time of our review, most

states were either nonparticipants or partial participants in NICS. 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:

• Fiscal Priorities. 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.

One state—South Carolina—recently dropped out as a full participant in

NICS, and FBI officials noted that 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.

• Handguns vs. Long Guns. 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

 7

 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.

Barriers to Increased State

Participation in NICS
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Page 10 GAO/T-GGD-00-163

of a public safety risk than handguns. And, as noted above, the FBI is

already performing long-gun background checks in those states free of

charge.

• States’ Rights. Some states may be philosophically unwilling to participate

in NICS, as demonstrated by the various state legal challenges to the local

background check requirements of interim Brady.8

 Because NICS was also

established under the Brady Act, some states may consider NICS

implementation to be a federal government responsibility.

• Resources/Expertise. 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—November 30, 1998,

through September 30, 1999—2,519 individuals who were sold guns were

later determined by the FBI to be prohibited persons. These were default

proceed transactions resulting from NICS background checks were not

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

the Brady Act. After 3 days elapsed, these transactions were considered

default proceeds, and the gun dealers were then legally able to transfer the

firearm without an affirmative response from the FBI as to the purchaser’s

eligibility.9

According to FBI officials, default proceed transactions occur primarily

due to lack of arrest dispositions in automated state criminal history

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

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

information about whether the case was prosecuted and resulted in a

conviction (which would be a federal 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

purchasers’ 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 clerk’s staff to assist

 

8

 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.

9

 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 Pose

Public Safety and

Other Concerns
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Page 11 GAO/T-GGD-00-163

the FBI, and the availability and accessibility of the disposition

information.

FBI data on the 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. In addition:

• 5 percent (118) of the 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 the transactions were resolved in 30 business days or

less; and

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

less.

Further, the actual number of default proceed transactions involving

prohibited persons might have been higher than the 2,519 already

identified by the FBI. 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. Given the potential increased risk to

public safety, the additional demands on law enforcement resources, 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 default proceed transactions.

To minimize the number of default proceeds involving prohibited persons,

various options can be considered. One option is to continue providing

grant funds to states to improve the quality and completeness of

automated criminal history records. Another option is to provide financial

incentives 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 with arrests for disqualifying offenses with no

disposition information. These options should be considered

complementary, rather than mutually exclusive.

Options for Improving

NICS by Minimizing

Default Proceed

Transactions
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Page 12 GAO/T-GGD-00-163

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

of automated or complete 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.10 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.

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 little 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.11

• 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.12 The

 

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

7, 1999), pp. 29 and 31.

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

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

Federal Grants to Improve

State Criminal History

Records

Financial Incentives to

Encourage State

Participation in NICS
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Page 13 GAO/T-GGD-00-163

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.

• 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.

13 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 1994,14 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 with arrests for disqualifying

offenses with no disposition information.

To illustrate the impact that amending the Brady Act could have on the

number of these default proceed transactions, we identified three different

state background check processes—Washington, Colorado, and Georgia—

that tend to minimize such default proceed transactions:

• Washington. 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

 

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

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

Amend Brady Act to

Minimize Default Proceed

Transactions

State Processes that Minimize

Default Proceed Transactions
Statement

Gun Control: Improving the National Instant Criminal Background Check System

Page 14 GAO/T-GGD-00-163

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

cause.15

• Colorado. Operating as a full-participant state under NICS, 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. Also operating as a full-participant state under NICS, Georgia has

issued regulations stating that, where a background check identifies the

existence of a criminal record that is not immediately available so as 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.

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, 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, would 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 should 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 would have been reduced by over 75 percent. Also, according

to FBI data, such a hold on delayed transactions would have affected only

about 88,000 (or 2 percent) of all NICS transactions—those that the FBI

has reported to be 20 times more likely to involve a prohibited person than

transactions involving the average gun buyer.16 Therefore, additional time

to research such delayed transactions could play a significant role in

preventing firearms sales to potentially prohibited persons.

 

15 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.

16 FBI, 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.

Potential Impact of Amending

the Brady Act
Statement

Gun Control: Improving the National Instant Criminal Background Check System

Page 15 GAO/T-GGD-00-163

In our April 12, 2000, report, we suggested that Congress may wish to

consider one or more of the following options for improving NICS by

minimizing the number of default proceed transactions involving the

transfer of firearms to prohibited persons:

• Recognizing the importance of accurate criminal history records to NICS’

effectiveness, continue providing federal grants to states for improving 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, provide financial assistance to

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

• Recognizing the public safety risks posed by NICS default proceed

transactions, amend the 3 business-day default proceed requirement of the

Brady Act to treat differently those potential purchasers with arrests for

disqualifying offenses where arrest disposition information is not readily

available.

The first two options could offer a positive, long-term impact on the

overall efficiency and effectiveness of NICS. 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.

Mr. Chairman, this concludes my prepared statement. I would be pleased

to answer any questions that you or other Members of the Committee may

have.

Contacts and Acknowledgment

For further information regarding this testimony, please contact Laurie E.

Ekstrand on (202) 512-8777 or Danny R. Burton on (214) 777-5600.

Individuals making key contributions to this testimony included Philip

Caramia, Mary Lane Renninger, and Ellen Wolfe.

Matters for

Congressional

Consideration
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