U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

35–771 PDF 2007

LETHAL LOOPHOLES; DEFICIENCIES IN STATE AND

FEDERAL GUN PURCHASE LAWS

HEARING

BEFORE THE

SUBCOMMITTEE ON DOMESTIC POLICY

OF THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

MAY 10, 2007

Serial No. 110–9

Printed for the use of the Committee on Oversight and Government Reform

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.oversight.house.gov

(II)

COMMITTEE ON OVERSISGHT AND GOVERNMENT REFORM

HENRY A. WAXMAN, California, Chairman

TOM LANTOS, California

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

BRIAN HIGGINS, New York

JOHN A. YARMUTH, Kentucky

BRUCE L. BRALEY, Iowa

ELEANOR HOLMES NORTON, District of

Columbia

BETTY MCCOLLUM, Minnesota

JIM COOPER, Tennessee

CHRIS VAN HOLLEN, Maryland

PAUL W. HODES, New Hampshire

CHRISTOPHER S. MURPHY, Connecticut

JOHN P. SARBANES, Maryland

PETER WELCH, Vermont

TOM DAVIS, Virginia

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

VIRGINIA FOXX, North Carolina

BRIAN P. BILBRAY, California

BILL SALI, Idaho

——— ———

PHIL SCHILIRO, Chief of Staff

PHIL BARNETT, Staff Director

EARLEY GREEN, Chief Clerk

DAVID MARIN, Minority Staff Director

SUBCOMMITTEE ON DOMESTIC POLICY

DENNIS J. KUCINICH, Ohio, Chairman

TOM LANTOS, California

ELIJAH E. CUMMINGS, Maryland

DIANE E. WATSON, California

CHRISTOPHER S. MURPHY, Connecticut

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

BRIAN HIGGINS, New York

BRUCE L. BRALEY, Iowa

DARRELL E. ISSA, California

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

CHRIS CANNON, Utah

BRIAN P. BILBRAY, California

JARON R. BOURKE, Staff Director

(III)

C O N T E N T S

Page

Hearing held on May 10, 2007 ............................................................................... 1

Statement of:

Brand, Rachel L., Assistant Attorney General for Legal Policy, Department of Justice, accompanied by Stephen R. Rubenstein, Chief Counsel,

Bureau of Alcohol, Tobacco, Firearms and Explosives .............................. 125

Sorenson, Susan B., professor of social policy and criminology, University

of Pennsylvania; Daniel W. Webster, associate professor and co-director

of the Center for Gun Policy and Research, Johns Hopkins Bloomberg

School of Public Health; and Ronald S. Honberg, professor of social

policy and criminology, director of policy and legal affairs, National

Alliance on Mental Illness ............................................................................ 154

Honberg, Ronald S. ................................................................................... 169

Sorenson, Susan B. .................................................................................... 154

Webster, Daniel W. ................................................................................... 162

Thomas, Robyn, executive director, Legal Community Against Violence;

Paul Helmke, president, Brady Campaign and Center to Prevent Gun

Violence; and John Feinblatt, criminal justice coordinator for the city

of New York ................................................................................................... 36

Feinblatt, John .......................................................................................... 71

Helmke, Paul ............................................................................................. 59

Thomas, Robyn .......................................................................................... 36

Letters, statements, etc., submitted for the record by:

Brand, Rachel L., Assistant Attorney General for Legal Policy, Department of Justice, prepared statement of ....................................................... 127

Burton, Hon. Dan, a Representative in Congress from the State of Indiana:

Letter dated May 16, 2007 ............................................................................... 119

Prepared statement of ...................................................................................... 15

Cummings, Hon. Elijah E., a Representative in Congress from the State

of Maryland, prepared statement of ............................................................ 185

Davis, Hon. Danny K., a Representative in Congress from the State

of Illinois, prepared statement of ................................................................ 11

Feinblatt, John, criminal justice coordinator for the city of New York:

Letter to Congress ............................................................................................ 100

Letter to Senator Durbin ................................................................................. 95

Prepared statement of ...................................................................................... 73

Helmke, Paul, president, Brady Campaign and Center to Prevent Gun

Violence, prepared statement of .................................................................. 62

Honberg, Ronald S., professor of social policy and criminology, director

of policy and legal affairs, National Alliance on Mental Illness, prepared statement of ........................................................................................ 171

Kucinich, Hon. Dennis J., a Representative in Congress from the State

of Ohio:

July 21, 2003 Washington Post article ........................................................... 113

Prepared statement of ...................................................................................... 5

Sorenson, Susan B., professor of social policy and criminology, University

of Pennsylvania, prepared statement of ...................................................... 157

Thomas, Robyn, executive director, Legal Community Against Violence,

prepared statement of ................................................................................... 39

Webster, Daniel W., associate professor and co-director of the Center

for Gun Policy and Research, Johns Hopkins Bloomberg School of Public Health, prepared statement of ................................................................ 164

(1)

LETHAL LOOPHOLES; DEFICIENCIES IN

STATE AND FEDERAL GUN PURCHASE LAWS

THURSDAY, MAY 10, 2007

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON DOMESTIC POLICY, COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, Washington, DC.

The subcommittee met, pursuant to notice, at 2 p.m. in room

2154, Rayburn House Office Building, Hon. Dennis Kucinich (chairman of the subcommittee) presiding.

Present: Representatives Kucinich, Davis of Virginia, Burton,

Issa, and Bilbray.

Staff present: Jaron R. Bourke, staff director; Charles Honig,

counsel; Jean Gosa, clerk; Nidia Salazar, staff assistant; Auke

Mahar-Piersma, legislative director; Natalie Laber, press secretary,

Office of Congressman Dennis J. Kucinich; Erin Holloway, legislative assistant, Office of Congressman Dennis J. Kucinich; Leneal

Scott, information systems manager; Jacy Dardine, full committee

intern; Ann Marie Turner, minority counsel; Allison Blandford, minority professional staff member; and Benjamin Chance, minority

clerk.

Mr. KUCINICH. The subcommittee will come to order.

This is a hearing of the Domestic Policy Subcommittee of the

Oversight and Government Reform Committee. Today’s hearing

will cover Lethal Loopholes: Deficiencies in State and Federal Gun

Purchase Laws.

We have three panels today. I will be introducing the first panel

in a moment.

Without objection, the Chair and ranking minority member will

have 5 minutes to make opening statements, followed by opening

statements not to exceed 3 minutes by any other Member who

seeks recognition. Without objection, Members and witnesses may

have 5 legislative days to submit a written statement or extraneous

materials for the record.

Good afternoon and welcome. The Domestic Policy Subcommittee

of the Oversight and Government Reform Committee has come to

order. I want to recognize the significant contributions of the ranking member of the full committee. This hearing is bipartisan in its

conception and in its development. I want to thank the gentleman

for his cooperation.

Today in America, people who shouldn’t get guns get guns. It is

that simple, everybody knows that. How they get guns and how to

prevent them from getting guns, that is not so simple. That is why

we are here today. This hearing will focus on lethal loopholes and

2

deficiencies in laws designed to prevent high risk individuals from

buying firearms. There are other important reasons why America

has such a high rate of gun violence, gang activity, inadequate provision of health services and cultural attitudes toward violence.

But those issues are for another day. There are many Federal

and State laws that have been on the books, some for decades,

aimed at preventing certain categories of people from purchasing

guns. The problem is that they do not function properly or are not

properly enforced.

In 1968, when Congress passed the Gun Control Act, it made a

judgment that certain categories of individuals termed ‘‘prohibited

persons’’ should not be allowed to purchase or possess handguns or

long guns because of the high risk that they would later use these

firearms to commit crimes. Prohibited persons include convicted

felons, illegal aliens and individuals with serious mental health

issues. The problem was that it was difficult to determine which

individuals fell into these categories when they walked into a gun

dealer to buy a gun.

In 1993, Congress passed the Brady Act with the goal of instantly checking a prospective handgun purchaser against a nationwide data base that would contain all information necessary to

determine if the purchase was a prohibited person. To the extent

the data is in the system, the background check works fairly well.

Between 1994 and the end of 2005, Federal and State law enforcement performed about 70 million background checks and identified

1,360,000 purchasers in the prohibited categories, a rejection rate

of 1.9 percent and over 90 percent of prospective purchasers got an

instant response.

But this is only part of the story, because that system is only as

smart as the information we put into it. And a lot of those people

the system lets through we all know should not be allowed to own

guns, people like the disturbed young man who took the lives of 33

innocent people last month at Virginia Tech.

We will hear testimony from the Government that the information in the data base, actually three data bases, collectively called

NICS, is woefully incomplete. For some prohibited persons categories, there is much less than half of the data that should be

there. And about half of the States don’t provide the FBI with any

mental health data.

Much of the information about prohibited persons originates in

the States and localities and they often fail to collect this information. If they do collect it, they don’t send it in a usable form to the

Federal Government. Why? Well, after all, that only hurts the

States, which rely on the data where illegal gun purchases and gun

violence occur.

Part of it is that the current law does not obligate the States to

report this vital information and it is difficult and expensive to do

so. Some States have other policies that get in the way.

The result is that 40 years later, 40 years after the passage of

the Gun Control Act, individuals who are prone to use guns illegally are still getting guns legally. There is legislation currently

being considered by the House Judiciary Committee, H.R. 297, the

NICS Improvement Act of 2007, which is designed to remedy the

States’ reporting failures through a combination of direct funding

3

for improving States’ reporting systems, fiscal incentives for States’

compliance and penalties for non-compliance. We will hear testimony that passage of this law would help reduce illegal firearm

purchases, but that the law alone won’t be enough.

Even if this reporting improves, there remains the gun show

loophole. The Brady Act’s instant background check only applies to

Federal-licensed firearm dealers and not to private sales, including

sales by unlicensed dealers at gun shows. These private sales are

largely unregulated and many guns involved in firearm violence

have been traced to gun show sales. Instant background checks are

not the only avenue to enforce gun control and the Brady Act.

Federal Government enforcement is primarily the responsibility

of the Bureau of Alcohol, Firearms, Tobacco and Explosives, the

ATF. The ATF can investigate, inspect and monitor sales of licensed and unlicensed firearm dealers, revoke licenses or refer for

prosecution dealers and purchasers who break the law and work

with State and local law enforcement to prevent illegal sales.

But there is reason to believe, including Government studies,

that the ATF does not do its enforcement job well. This hearing

will investigate where lax enforcement is a product of the AFT’s

lack of resources and authority and where the Bureau simply does

not use its authority well. We will also hear how Federal law

makes it difficult, if not impossible for State and local law enforcement to get data necessary to trace guns used in crimes back to

the gun dealers that illegally sold them.

In spite of these limitations, we will learn the unbelievable story

of the efforts of New York City to fill the Federal enforcement void

by suing out of State gun dealers who are the source of guns involving crimes afflicting New York City. In setting the suit, the federally licensed gun dealers located in Pennsylvania, South Carolina

and as far away as Georgia agreed to a 3-year inspection and monitoring regime administered by New York City. I guess necessity

really is the mother of invention. It fell upon a city to enforce Federal law because the ATF is AWOL. Kudos to New York City,

which has sent its top official in this area to be a witness today.

Our third panel will focus on the States. We will hear testimony

on how some States do a better job than others. First, we will learn

about how some States have enacted laws and developed internal

systems designed to improve their data collection and reporting.

Second, many States have moved into the vacuum of Federal regulation and have passed laws regulating non-federally licensed dealers and effectively closed the gun show loophole.

Finally, we are going to hear about States that have passed purchase prohibitions beyond those required by Federal law, aimed at

categories of individuals who have shown propensity for violence,

including juvenile offenders and certain misdemeanor and domestic

violence offenders. We will also hear from an advocate for mental

health patients who cautions that proposals to broaden the prohibited categories for people undergoing mental health treatment

should be grounded not on prejudice, but on sound science, and

that these individuals actually pose a risk of violence.

Moreover, we will hear concerns that these laws will not be crafted to serve as a disincentive to people seeking mental health treatment. It is possible that the States’ approaches can reveal some

4

best set of practices that would be adopted by other States or percolate up and become the Federal standard.

But as with Federal purchase restrictions, enforcement of State

restrictions depends on other States reporting crucial information.

We will hear about the lack of uniformity and problems of coordination across the States. In Ohio law, for example, prohibiting a

certain category of high risk individuals from buying handguns will

not stop individuals who commit disqualifying offenses in other

States if those States do not share their information.

Finally, we can expect more from the States in the way of reporting, respect their sovereignty and learn from them. However, because the market for guns is national and State borders are porous

for both guns and people, in the end this is a national problem. It

is my hope that this hearing can show the way for the Federal and

State governments, through the implementation of new policy or

the passage of new laws, to close these loopholes and ultimately to

reduce firearm violence.

At this time, the Chair is pleased to recognize Mr. Davis.

[The prepared statement of Hon. Dennis J. Kucinich follows:]

5

6

7

8

9

Mr. DAVIS OF VIRGINIA. Thank you. I want to thank you, Chairman Kucinich, for holding this hearing on an issue of critical importance to the citizens of every State in this Nation. The most lethal episode of gun violence by an individual in our history, the

shooting last month at Virginia Tech, prompted many to take a

critical look at Federal and State prohibitions against gun ownership. As a result, Virginia Governor Tim Kaine closed a loophole

in the way the Commonwealth processes information on those

found to pose a danger to the community.

Before, only persons actually admitted to a hospital or residential

treatment facility were deemed dangerous enough to be subject to

the gun ownership ban. By Executive order, the Governor eliminated the inapt distinction in this context between inpatient and

outpatient care to require prompt listing of all individuals undergoing involuntary mental health treatment in any setting. In

issuing his order, the Governor correctly observed, ‘‘The key factor

should be the danger finding, and not whether the judicially mandated treatment is performed in an institution or on an out-patient

basis.’’ That is what we are here today to discuss, how best to keep

guns out of the hands of dangerous individuals.

The Gun Control Act of 1968 listed those who were prohibited

from purchasing or possessing a firearm. The Brady Handgun Violence Prevention Act of 1993 requires that all federally licensed

firearms dealers obtain a background check on potential purchasers through the National Instant Check System [NICS]. The

NICS contains information from State and Federal agencies about

individuals who should not be permitted to purchase a gun. In an

ideal world, every time an individual prohibited under law attempts to buy a gun, a quick background check would prevent the

purchase.

Unfortunately, we don’t live in an ideal world. In truth, not every

State compiles and maintains an accurate list of those who should

not have a gun. If the State’s lists are incomplete the NCIS data

are also incomplete. And not all guns are sold by licensed dealers.

Those gaps make it possible for dangerous people to obtain lethal

weapons.

We hear a variety of reasons for reporting lapses and delays,

from inadequate technology systems to privacy issues to costs. But

we all know from sad experience, even minor oversights or loopholes can have major and tragic consequences. Some States are

moving to expand and strengthen the exclusion criteria for gun

purchases. We will discuss some of those proposed standards today,

including juvenile offenses, serious misdemeanor convictions, imposition of restraining orders protecting other than spouses or children and a more expansive list of mental illness diagnoses.

We will hear from academics and others who have studied evidence of a predictive connection between these and other factors

and subsequent violence. There is no denying this is a complicated

issue. Are we willing to include in the mental illness prohibition individuals who voluntarily commit themselves to a mental health institution? Do we tell someone who struggled with mental illness in

his or her 20’s, received needed treatment and has gone on to live

a productive life that he or she cannot buy a gun 20 years later?

10

Will including a broader range of mental health indicators discourage people from seeking treatment? Does the current list of

prohibited acts, conditions and findings capture advances in psychiatric understanding and all known predilections to violence?

The process of crafting additional prohibitions and applying them

to all gun sales is not easy and no one has a perfect solution. Hopefully, today’s hearing will help us better understand the questions

and get closer to workable answers. I would just add that this violence claimed four victims plus the shooter, all from northern Virginia, in my home county. This has affected the whole community,

and I appreciate your looking into this. I appreciate our witnesses

being here today.

[The prepared statement of Hon. Danny K. Davis follows:]

11

12

13

Mr. KUCINICH. I thank the gentleman from Virginia.

The gentleman from Indiana, Mr. Burton.

Mr. BURTON. Thank you, Mr. Chairman.

We all want to keep guns out of the hands of people who would

commit crimes of violence. There is no question about that. But we

have to be very careful when we start messing around with the second amendment. And I know we are not going to be covering the

second amendment today, but I think it is important that we talk

about it anyhow.

In 1977, here in Washington, DC, they put into law a permanent

ban on all handguns and all guns in a person’s house. Since 1977,

the crime rate and the murder rate in this city has gone up triple,

over triple, because the criminals know they can come into your

house and you can’t protect yourself.

I had a young lady that was my secretary, she lived on the second floor of an apartment building about five blocks from the Capitol. A guy shinnied up the drain pipe and came in through a window she had open in the summer time and stabbed her four or five

times. She finally got down the stairs, opened a door and she hit

him with a pan. That is the only thing she could—she couldn’t even

have mace in her house. So we have to be very careful about taking

away the rights of homeowners and individuals that would allow

them to protect themselves from these violent criminals.

When I got off the plane, when I first got elected to Congress in

1983, the cab driver was driving me down to the Capitol. I said,

tell me about Washington. He said, oh, it is a great city, but the

crime rate is terrible. I said, well, I have a permit to carry a gun

back in Indiana, maybe I should do it here. He said, oh, you can’t

get a gun permit. I said, what are you talking about? He said, they

don’t allow any guns here. The only people who get guns are the

police and the crooks. And he reached under his seat and pulled

a .38 out and held it up and said, but if you want one, I can get

you one in about 15 minutes.

So that shows you that the criminals have access to these weapons, and they can kill people as well as the people who have these

mental problems. I am for keeping guns out of the hands of people

who are going to be a problem. But we have to be very, very careful

how we do that.

I would like to point out one thing on Virginia Tech. That was

a horrible, horrible crime. And we all want to make sure those

tragedies don’t happen. And we want to make sure that people who

have mental problems or have a case history of violence don’t get

guns. And it is a very tough thing to do.

But I would like to add just one thing to that. If one of those students or one of the people at Virginia Tech had the right to carry

a weapon, do you think they might have saved some of those people’s lives, because they could have retaliated against this guy? As

it was, nobody had a way to stop him. They shut doors and he shot

through the doors.

14

So I would just like to say that obviously, we want to keep guns

out of the hands of people who would pose a threat to society. But

at the same time, we ought to realize that keeping law-abiding citizens from having weapons to protect themselves is a big, big mistake. With that, I yield back my time.

[The prepared statement of Hon. Dan Burton follows:]

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

Mr. KUCINICH. I thank the gentleman.

I would like to start by introducing our first panel, if there are

no additional opening statements.

Mr. BURTON. Mr. Chairman, can I submit for the record some

statistical data I have, please?

Mr. KUCINICH. Without objection, the gentleman’s submission is

included in the record. I thank the gentleman.

We will introduce our first panel. I would like to introduce Robyn

Thomas, who is the executive director of Legal Community Against

Violence. LCAV is a public interest law center dedicated to preventing gun violence by providing legal assistance to State and

local governments. Before joining LCAV last year, she was a practicing attorney in New York City.

Next we will hear from Paul Helmke, who has served in the last

year as president of the Brady Campaign and Brady Center to Prevent Gun Violence, a non-partisan grassroots organization working

to prevent gun violence. Mr. Helmke has served as mayor of Fort

Wayne, IN, from 1988 through 2000. During his tenure as mayor,

he worked to strengthen the police department and implement

community policing. Mr. Helmke served as president of the U.S.

Conference of Mayors in 1997 and 1998, and was a board member

and chair of the Committee on Public Safety and Crime Prevention

for the National League of Cities.

The final witness on the first panel will be John Feinblatt. Mr.

Feinblatt was appointed New York City’s criminal justice coordinator by Mayor Michael R. Bloomberg in January 2002. In this capacity, Mr. Feinblatt has served as the chief advisor on Mayor

Bloomberg’s Illegal Gun Strategy, which includes innovative enforcement strategies, new local legislation, and the formation of a

new national coalition: Mayors Against Illegal Guns. Prior to his

appointment, Mr. Feinblatt was the founding director of both the

Center for Court Innovation, the country’s leading think tank on

problemsolving justice, and the Mid-town Community Court.

Welcome to all the witnesses. It is the policy of the Committee

on Oversight and Government Reform to swear in all witnesses before they testify. I would ask the witnesses to please rise and raise

your right hands.

[Witnesses sworn.]

Mr. KUCINICH. Thank you. Let the record reflect that the witnesses answered in the affirmative.

I ask that each of the witnesses now give a brief summary of

your testimony, and keep the summary to 5 minutes in length.

Bear in mind that your complete written statement will be included in the hearing record.

Ms. Thomas, you will be our first witness. You may begin.

36

STATEMENTS OF ROBYN THOMAS, EXECUTIVE DIRECTOR,

LEGAL COMMUNITY AGAINST VIOLENCE; PAUL HELMKE,

PRESIDENT, BRADY CAMPAIGN AND CENTER TO PREVENT

GUN VIOLENCE; AND JOHN FEINBLATT, CRIMINAL JUSTICE

COORDINATOR FOR THE CITY OF NEW YORK

STATEMENT OF ROBYN THOMAS

Ms. THOMAS. Thank you very much. Legal Community Against

Violence sincerely appreciates the opportunity to speak to the committee about Lethal Loopholes: the Deficiency in State and Federal

Gun Purchase Laws.

As you mentioned, LCAV is a public interest law center devoted

to preventing gun violence. We were founded in 1993 after the assault weapon massacre at 101 California Street in San Francisco.

I am going to address three questions related to the deficiency

in State and Federal gun purchase laws. First, how to State and

Federal gun laws interact? As you mentioned, Federal law establishes the baseline regarding the types of purchasers who are ineligible to acquire firearms. Those categories of prohibited purchasers

include felons, illegal aliens, those subject to domestic violence protective orders, and the mentally ill. Some States then expand the

Federal law by applying broader standards to some or all of these

categories. In addition, many States designate extra and additional

classes of prohibited purchasers who are not found in the Federal

law.

The second question I will address is what are the lethal loopholes in the Federal system and how are States addressing them?

First, there are numerous gaps in the Federal law that prohibit

certain individuals from purchasing firearms. Here I am going to

touch on two basic issues, those with mental illness and domestic

violence offenders.

With respect to mental illness, Federal law prohibits firearm purchases by those who have been involuntarily committed or adjudicated as mental defective. This does not reach individuals with

a wide range of potentially dangerous mental illnesses. For example, a person who is voluntarily committed to a mental institution

can still lawfully purchase a firearm under Federal law. Many

States have broadened the category of mentally ill persons prohibited by including those who voluntarily or involuntarily are committed to a mental hospital.

In the case of domestic violence offenders, Federal law prohibits

firearm purchases by those who have been convicted of a misdemeanor crime of domestic violence and those subject to certain

domestic violence protection orders. The Federal prohibitions leave

large gaps, also allowing violent offenders to acquire firearms.

For example, the protection order prohibition does not include

those individuals who have not co-habitated with the person who

is the subject of the restrictive order. So in other words, if you and

I have not lived together and I am subject to a restraining order,

I may still purchase a firearm under Federal law.

More than half of the individuals who are subject to domestic violence protection orders fall into this category. So it is a large loophole in the domestic violence prohibition. And many States have

acted to close that loophole.

37

I also will address gaps in enforcement. As was mentioned, access to State records is a huge part of the issue with enforcement

of the prohibited purchaser provisions. As the Virginia Tech incident illustrated, access to mental health and domestic violence

records is seriously inadequate. Federal law does not and cannot

require that States send relevant records to the FBI for inclusion

in the NICS data base. According to the FBI, only 22 States voluntarily contribute mental health records to NICS.

We note the legitimate concern for privacy regarding mental

health records. However, with laws that limit the use of such

records, this concern can be adequately addressed. Lack of access

to State records is also a significant obstacle with regard to perpetrators of domestic violence. A recent study showed that less

than 50 percent of those believed to qualify, even under existing

Federal law, would not be included in the system.

One way States can improve access to prohibited purchaser

records is by becoming a point of contact or POC State. POC States

can then conduct background checks through the State system and

have access to records which include NICS information as well as

independent State information, criminal history and other data

bases.

The FBI has been encouraging more States to serve as POCs. At

the present time, only 21 States serve as POCs either for handgun

transfers or other gun transfers. In addition, several POC States

already search mental health records automatically as part of the

background check system. On top of that, some States have decided

to require reporting to mental health data bases. This is an important point, because it has two parts to it. The first is that there

has to be reporting of mental health records and then the second

is that when a background check is done that those mental health

records are actually reviewed. It’s the same situation for domestic

violence offenders. It is a twofold problem that has to be addressed.

Two other dangerous loopholes remain which I will touch on

briefly. One is the so-called default proceeds provision. What this

refers to is the instance when a background check is done and it

is incomplete after 3 days. The gun automatically default proceeds

to the requested purchaser.

Approximately 3,000 or 4,000 guns per year proceed this year

and then later have to be reacquired, when it is found after the 3-

day period has passed that the person should not have passed the

background check. Many States have posed this loophole in a variety of different ways, from including the length of time to not allowing a transfer if the background check is not completed.

The final loophole that I will mention is something that has already been mentioned, the private sale loophole. Forty percent of

the guns transferred in this country take place through private

sales which are not subject to any background check at all. So until

unlicensed sellers are also regulated by the background check system, this will continue to remain an avenue for a huge quantity of

the guns that are sold in the marketplace.

I would just like to close by adding that H.R. 297 that the Congressman mentioned is a good step in the right direction, something that encourages States to report records to NICS and that begins to address the problem of the lack of information. It is a step

38

in the right direction, but there are many other issues that need

to be addressed, and we hope that this hearing will be a beginning

of addressing some of these.

Thank you very much.

[The prepared statement of Ms. Thomas follows:]

39

40

41

42

43

44

45

46

47

48

49

50

51

52

53

54

55

56

57

58

59

Mr. KUCINICH. Thank you very much, Ms. Thomas.

STATEMENT OF PAUL HELMKE

Mr. HELMKE. Thank you, Chairman Kucinich, Ranking Member

Issa, Congressman Davis and fellow Hoosier, Congressman Burton,

Mr. Bilbray.

I come to you as the recipient of two NRA marksmanship awards

from grade school, a lifelong Republican, born and raised in Indiana, where as you indicated, I was the mayor of Fort Wayne for

three terms.

I am also here as the president of the Brady Campaign and

Brady Center to Prevent Gun Violence, the Nation’s largest organizations working for reasonable gun policies.

I don’t see a contradiction. The proposals I recommend are common sense, simply common sense. They should appeal to most

Americans across party and geographic lines and can help make

our communities safer. I have submitted my written testimony, so

I will just address a few points quickly here.

We have an epidemic of gun violence in this country. Every year

in America, almost 30,000 people are killed by gunfire, 10 times

the death toll of 9/11. About 32 people are murdered every day

with guns. That is a Virginia Tech massacre every day in this

country. And for every death, there is another two or three people

that are seriously wounded.

In recent years, violent gun crime has spiked, increasing almost

50 percent from 2004 to 2005, the largest increase in 14 years.

What are we going to do about it?

What we are doing now to prevent gun violence clearly is not

working. We need to plug the lethal loopholes in our laws. There

are many things we should do, but let me just touch on a few.

No. 1, we need to make sure that the Brady background system

is effectively applied. The Virginia Tech killer was prohibited from

buying guns under Federal law, since a court had found him to be

a danger to himself or others as a result of mental illness. Unfortunately, Virginia did not provide such orders to their State police,

so the killer passed a background check and bought his guns. Effective Brady background checks with access to all relevant records

would have stopped those sales.

According to the FBI, in 28 States, no relevant mental health orders are made available for background checks, so many people can

buy guns, even though they are prohibited by Federal law. We need

to close that lethal loophole.

The NICS Improvement Act, introduced by Carolyn McCarthy as

H.R. 297, is a necessary step. This legislation would provide grants

and other incentives to encourage States to forward all relevant

records on people prohibited from possessing firearms to the Federal National Instant Criminal Background Check System. Had it

been law, the Virginia Tech shooting may have been averted.

Now, there has been a great deal of misinformation about the effect of gun laws on those being treated for mental illness. I would

like to set the record straight. Under existing Federal law, you will

not be denied a gun simply because you have sought treatment for

or been diagnosed with a mental illness. Existing Federal law prohibits from buying guns only those mentally ill persons who have

60

been adjudicated by a ‘‘lawful authority,’’ such as a court, to be a

danger to themselves or others as a result of mental illness, who

lack the mental capacity to manage their own affairs, as well as

persons who have been involuntarily committed to a mental institution.

Further, no one accesses your medical records in a background

check. The only records entered into the Federal or State data

bases are relevant court or other orders indicating that you fall

into a prohibited category. When anyone is denied a gun purchase

because they fail a background check, the gun dealer simply gets

back a ‘‘denied’’ message, with no information as to why the person

is denied.

So Federal gun laws create no disincentive for people to seek

mental health treatment or obtain a diagnosis. But the Virginia

Tech massacre provides another reminder that those who are dangerous because of mental illness should not be allowed to buy guns.

Second point I want to address: we must be sure that no guns

are sold without a background check. As Congressman Davis pointed out, incredibly, current Federal law allows people without a Federal license to sell guns without a background check, so long as the

seller is not ‘‘engaged in the business’’ of selling guns and the

buyer is from the same State. We need to close this loophole by

passing the Gun Show Loophole Closing Act of 2007, introduced as

H.R. 96 by Representative Castle from Delaware, co-sponsored by

Representatives McCarthy and Shays.

No. 3, we must give law enforcement the tools and resources it

needs to fight gun crimes, including illegal gun trafficking and corrupt gun dealers. Studies have shown, as you indicated, Mr. Chairman, that 1 percent of gun dealers sell almost 60 percent of crime

guns. Yet we tie law enforcement’s hands. We put blinders on them

and we give special protections to corrupt gun dealers who supply

these criminals.

Law enforcement must have all the information it needs. Congress must eliminate appropriation riders to ATF’s budget, the socalled Tiahrt amendment, that shields important gun data and

makes it uniquely exempt from the Freedom of Information Act.

We need to eliminate other restrictions that make it harder for law

enforcement to crack down on corrupt dealers. Law-abiding gun

dealers do not need special protections, and corrupt dealers don’t

deserve them. There are a number of other loopholes that we hope

will be addressed in the future: the fact that there is no limit on

the amount of guns you can buy and the size of the arsenal you

stock, the fact that the terrorists can be on the terrorist watch list

and they are not prohibited from purchasing guns currently, the

fact that weapons of war are often available for purchase.

But all the loopholes we have been talking about today are law

and order proposals. They will not prevent law-abiding citizens

from having guns in their home if they choose; they will not cost

a single sportsman a day of hunting season. They are supported by

law enforcement and by most Americans.

Too many of our neighbors are experiencing the same pain experienced by the Virginia Tech victims and their families every day.

I ask Congress what we should all be asking: what are you going

to do about it?

61

Thank you for having this hearing. Thank you for addressing the

issue. You show that you are not silent on guns, and I appreciate

that. Thank you.

[The prepared statement of Mr. Helmke follows:]

62

63

64

65

66

67

68

69

70

71

Mr. KUCINICH. Thank you, Mayor.

Mr. Feinblatt.

STATEMENT OF JOHN FEINBLATT

Mr. FEINBLATT. Good afternoon. Thank you, Mr. Chairman,

Ranking Member Issa and distinguished members of the subcommittee.

I am here to talk about crime control, not gun control. As Mayor

Michael Bloomberg’s Criminal Justice Coordinator, I serve as the

mayor’s chief advisor on criminal justice policy. Controlling crime

is my chief concern, and I can assure you that it is an absolute top

priority for the mayor.

I am proud today to represent a city that has made enormous

strides combatting crime. According to the FBI, New York City is

the safest big city in America. In New York City, the crime rate

has dropped 21 percent since Mayor Bloomberg took office. Already

this year, homicides are down 23 percent compared to the same period last year, and shooting incidents are down 16 percent.

Unfortunately, the national crime story isn’t so bright. After

years of decline, crime rates are now on the rise across the country.

A recently released study by the Police Executive Research Forum

shows that homicides are up 20 percent while aggravated assault

with a firearm has increased by 30 percent since 2004. This alarming trend is one of the reasons why mayors across the country are

working together to combat the flow of illegal guns into their cities.

One year ago, in April 2006, Republican Mayor Michael

Bloomberg and Democratic Mayor Tom Menino of Boston invited

13 mayors to join in a conversation about the scourge of illegal

guns. That initial group of 15 mayors has grown into the Mayors

Against Illegal Guns Coalition, comprised of more than 225 mayors

from more than 40 States, representing over 50 million people. At

the Federal level, this coalition has one priority and one priority

only: to repeal the Tiahrt Amendment restrictions on crime gun

trace data.

Let me be clear about what data we are talking about here, because this data is about only one thing, and that is guns recovered

in crimes. It is not about any sort of wholesale access to the sale

records of lawful gun owners.

Why do mayors oppose the Tiahrt Amendment? It is simple.

Their police chiefs are telling them that the Tiahrt Amendment

makes them do their jobs with a blindfold on. Despite the lessons

we learned on the tragic days surrounding September 11th, the

Tiahrt Amendment prevents police from connecting the dots.

There are four principal restrictions of the Tiahrt Amendment.

One, it restricts access to aggregate crime gun data, which means

cities can’t look at trends and patterns. Two, it blocks access to

data from other cities and States, which means the police can’t get

a regional picture of where the illegal guns are flowing from.

Three, it prevents cities from using gun trace data to hold accountable the few dealers who break the law. And four, it stops the ATF

from producing national reports, which prevent all of us from getting a full picture of how guns move into the illegal market. This

makes no sense.

72

Every year, Congress has made the Tiahrt Amendment more and

more restrictive. This year, the Justice Department and the White

House seem determined to make these restrictions even worse. As

Mayor Bloomberg wrote to Attorney General Gonzalez on May 3rd

of this year, ‘‘Your Justice Department has submitted an appropriations request to Congress that not only largely retains the

Tiahrt language, but makes it even worse, adding provisions that

would require police officers to certify the reasons for their use of

trace data, which could result in criminal prosecutions of police officers.’’

The gun lobby has put forward two main talking points in an attempt to support its defense of the Tiahrt Amendment. Neither

stand up. First, they claim that the restrictions protect undercover

law enforcement officers. But they have not documented a single

case of an undercover officer being exposed by the release of trace

data prior to the enactment of the Tiahrt Amendment.

Second, they argue it will subject gun dealers to undue harassment. But the truth is that 85 percent of dealers have no crime gun

traces in a given year and as you have heard before, 1 percent of

the dealers account for nearly 60 percent of the traces.

Our coalition of 225 mayors knows the gun lobby’s claims are

false, and so do the 10 national law enforcement organizations, the

more than 20 State and regional law enforcement organizations

and the more than 185 individual law enforcement executives who

have written to Congress to oppose the Tiahrt Amendment. Some

ask, why are the mayors taking the fight against illegal guns into

their own hands? It is because the Federal Government has so

clearly dropped the ball.

By their own admission, ATF is not up to the task. According to

the Department of Justice Inspector General, in fiscal year 2002,

ATF revoked or refused to renew just 2.8 percent of the licenses of

dealers who were found to have violations, even though those dealers had an average of 70 violations each. And just 3 days ago,

ATF’s chief public affairs officer told Time Magazine that at the

current rate of inspections, it would take 17 years to inspect all existing licensed firearm dealers.

It is the Federal Government’s failure to enforce the laws on the

books that has forced New York City and others to act. Ninety percent of guns recovered in crimes in New York City come from out

of State. That is why New York City initiated lawsuits against 27

gun dealers from 5 States last year. In each of these 27 cases, we

sent in undercovers and caught the dealers in the act of completing

illegal ‘‘straw’’ purchases. I am pleased to report that 12 of the 27

dealers have now settled out of course, and agreed to unprecedented oversight of their firearms sales.

Having spoken to countless mayors, countless prosecutors and

countless police, there is only one way to interpret what Congress

did when it enacted the Tiahrt Amendment: it chose to protect the

privacy of criminals over the lives of police officers. If this Congress

is serious about getting tough on crime, then it will repeal the

Tiahrt restrictions and help State and local enforcement combat illegal guns.

Thank you.

[The prepared statement of Mr. Feinblatt follows:]

73

74

75

76

77

78

79

80

81

Mr. KUCINICH. Thank you very much, Mr. Feinblatt.

I just want to indicate how we are going to proceed. There is a

vote on, and the ranking member, Mr. Issa, has requested time at

this moment. So I will yield to him, then after that, we are going

to take a break for the votes. It could be about 45 to 50 minutes.

I would ask the panel to remain for questions.

So at this time, the Chair will yield to Mr. Issa.

Mr. ISSA. Thank you, chairman.

I apologize for not having been here at the beginning to make my

opening statement. We were unavoidably delayed in a piece of conference business, as we call it, a vote within the committee.

Mr. Chairman, I want to thank you for holding this hearing

today. I have forwarded a letter that objects to some aspects of this

committee hearing not being as full and complete as I would like

it to be. However, it is very clear that at a minimum, we will receive a good cross-section of some of those legitimate loopholes that

exist, particularly the mental illness fail to implement that has

clearly, clearly played a part in the tragic deaths of 32 at Virginia

Tech.

Moreover, it is very clear that Congress does have a continued

role in working with the States to see that the full intent of Congress, not just under the Brady Bill, but under all our prior legislation, is implemented. I happen to come from California, a State

that is known for tough gun laws. But even there, I want to commend, and this doesn’t often happen these days, Attorney General

Alberto Gonzalez for the fact that he repeatedly insisted that in

California Federal gun laws be enforced even in a State with some

of the toughest gun laws. That Federal U.S. Attorney arm is extremely important. If anything, although the President made it a

top priority, it needs to be an even higher priority.

We cannot stand behind the second amendment, which I do very

strongly, if in fact we will not ensure that those who legitimately

should be denied the right to keep and bear arms are in fact denied

that. I look forward to this hearing. I have a strong view that we

should have at least one followup hearing in which some of the people who strongly support the second amendment and strongly support that we do not need additional laws are given an opportunity

to make their case of how we can, in fact, with the existing laws,

enforce sufficiently to make those who should not have guns not

have guns.

I believe that the firearm laws need to be looked at carefully. But

most importantly, I look forward to our witnesses giving us the insight into the lack of enforcement that has led to many tragedies

around the United States.

With that, Mr. Chairman, I will put the rest of it in the record,

with unanimous consent. Thank you. I yield back.

Mr. KUCINICH. Without objection, the gentleman’s statement and

letter is included in the record. I thank the gentleman very much

for his presence and for his testimony.

At this time, the Chair is going to declare a recess until I would

say about 50 minutes from now, we will come back. We will ask

the witnesses if they will remain or be back here in 50 minutes,

so that we can go to questions.

Thank you very much.

82

[Recess.]

Mr. KUCINICH. The Domestic Policy Subcommittee will resume.

Our hearing today is on Lethal Loopholes: Deficiencies in State

and Federal Gun Purchase Laws.

We are now at the point where we are going to ask the first

panel to answer questions. I would like to begin by asking both Ms.

Thomas and Mr. Helmke: Without closing the gun show loophole,

is there anything else that can be done that helps prevent prohibited persons from getting guns, or does reform just divert individuals to unregulated private sales, individuals who are now in

NICS?

Ms. THOMAS. I think as has already been discussed by members

of the panel, there are so many areas in which you can begin. I

think it can begin with closing some of the ways in which these

categories are defined, whether it’s mental health prohibition or domestic violence offender prohibitions. So at the State level that can

be done, and certainly as well as at the Federal level. Both of those

things wouldn’t entail closing the private sale loophole, but would

entail shoring up prohibitions that already exist.

Secondarily to actually impacting those provisions, there are

other categories of purchasers who are not prohibited. For example,

domestic violence juvenile offenders are not prohibited under Federal law from acquiring firearms. That is something that might

need to be looked at, as to whether there is a way to implement

that into this. Certainly many States already have created prohibitions around particular categories that aren’t covered by the Federal law.

Then last, going back to the State recordkeeping and the way in

which that is transferred to the Federal level. Right now you do

have Sates that report very well up to the NICS system and the

FBI. That is very helpful, especially as the chairman mentioned,

with regard to our porous borders. If in California, we have very

good recordkeeping for mental illness, and I am in the system, but

I move to another State, say Nevada, and California doesn’t report

to the FBI or NICS, therefore in Nevada, they won’t have access

to that information.

So I think there are ways in which the data can be transferred

that would be extremely helpful to shoring up some of these problems.

Mr. KUCINICH. Mr. Helmke.

Mr. HELMKE. The question usually comes to me in terms of, well,

the bad guys don’t follow the rules, so why should we make rules.

And I think if we analyze this, the guns come from some place.

And we don’t want to make it easy for dangerous people to get

guns. That is why we have the 1968 Gun Control Act. That is why

we have the Brady Bill, to do a check to make sure that prohibited

purchasers, we don’t rely on the prohibited purchaser filling out

the form. We check to see what the records are.

So again, the first thing we need to do is to make sure that we

are strengthening the Brady Bill, that we get good information into

the system from the States as to felons and other prohibited purchasers. That is the first crucial part. Then we need to make sure,

I think, that the Brady background checks are applied to all sales,

83

that the so-called gun show loophole, the private seller exception

that we talked about.

But then we have to focus on the thing that Mr. Feinblatt talked

about, and that is that guns do get in, criminals do pick up guns

illegally. But where do those guns come from? And when you talk

to police chiefs around the country, when you talk to mayors

around the country, most guns that are used in crimes, it has been

a fairly short period of time that it has come from a legitimate gun

dealer to the street. It is not old guns we are seeing used in crimes.

Most guns that are used in crimes are 2 to 3 years old. They have

come fairly quickly from the legitimate market to the criminal market. How does that happen?

That is one of the reasons that we focus on Tiahrt. We need to

find out where the guns are coming from. Once you find where they

are coming from, then you can develop strategies to make it harder, strengthening ATF, dealing with the bulk sales of guns.

Mr. KUCINICH. And this goes to the issue of the completeness of

the data in the NICS. So the following, including all the Federal

prohibited persons categories, what is the percentage of data that

has been entered into the NICS data base in a form that can be

used by the Brady background check, for example?

Mr. HELMKE. The States have done a very good job in terms of

felony records. Where the States haven’t done a very good job are

with regard to the other categories. This deals with those who are

a danger to themselves or others because of mental illness. It is a

category that people put in the NICS index, is what they call it.

But for example, in terms of people who are considered a danger

to themselves or others because of mental illness, the mental illness category of prohibited purchaser, there are only about 235,000

names entered into that record. I have seen some estimates that

are at least 2.6 million people institutionalized involuntarily in this

country. That means there is a disconnect between the mental

health records that are getting in there and the number of people

that would actually be a prohibitive purchaser.

Mr. KUCINICH. So if you had a complete NICS data base, that

would include, let’s say, 1,000 pieces of information or 1,000 pieces

of data, and NICS had access to only about 500, what would you

say? Could you give a quantification, that you just said 235,000 of

1.2 million?

Mr. HELMKE. And these are estimates, because we don’t have

complete records.

Mr. KUCINICH. Can you give me a rough estimate, percentage?

Mr. HELMKE. In terms of the mental health records, in terms of

a disqualifying mental illness, findings that someone is dangerous

to themselves or others, a prohibited purchaser, it is probably just

10 percent of the records. Virginia actually is one of the better

States in terms of reporting records. They have reported about

80,000 instances.

Mr. KUCINICH. That is in mental health records?

Mr. HELMKE. That is criminal health records.

Mr. KUCINICH. What about criminal conviction data? Is it just as

problematic?

Mr. HELMKE. Well, particularly when you look at misdemeanors,

dealing with the domestic violence area that Ms. Thomas talked

84

about, again, the States do a pretty good job, because they have

computerized most of their felony records. When you get into misdemeanors, when you get into restraining orders, when you get into

the mental illness disqualifying records, it is basically hit or miss

whether the State has given you anything at all.

Mr. KUCINICH. I am going to come back, to that line of questioning, but it is now time for Mr. Burton, if he so chooses, to ask questions. Mr. Burton.

Mr. BURTON. Thank you, Mr. Chairman.

I am concerned about, you are advocating, I guess, that the Federal Government demand of the States that they provide adequate

records. That is essentially what you want to do, right?

Mr. HELMKE. In 1968, the Federal Government said that certain

people were prohibited purchasers and declared as a policy that

those people were dangerous people who should not be getting

guns. So we are trying to figure out, how do we turn that statement of who is a prohibited purchaser into an effective enforcement

tool.

Mr. BURTON. Are you advocating that there be Federal records

kept, that the States are required to send these records to Washington, DC, and that make sure we keep track of them through the

Federal Government?

Mr. HELMKE. Currently, States have a choice. They can be what

is called a point of contact State, and I think there are 22 or so

of those?

Ms. THOMAS. About 20.

Mr. HELMKE. About 20 of those now where they handle the

records on their own. There are other States who decide they don’t

want to handle that, and they send it to the Federal Government.

So right now the States have a choice.

Mr. BURTON. I understand, but if the States don’t comply with

the things they way you think they should, then you feel the Federal Government should force them to do that?

Mr. HELMKE. Well, actually, Carolyn McCarthy’s bill, the NICS

Improvement Act, wouldn’t be forcing them to.

Mr. BURTON. What does it do? How do you enforce it if it doesn’t

force the States to comply?

Ms. THOMAS. If you don’t mind, I don’t think it is about enforcing. In fact, I think there are issues as to whether it could actually

be enforced on the States. I don’t believe that is an approach that

would be appropriate under the way that our system operates

under the tenth amendment. I do think that is he is talking about,

there are ways to encourage and give incentives.

Mr. BURTON. So you are talking about encouraging the States.

Well, I think the States right now, for the most part, really want

to keep the guns out of people’s hands that shouldn’t have them.

I don’t know how this legislation is going to improve that. You are

just suggesting, we want you to do better?

Ms. THOMAS. There are financial incentives included in the legislation that I believe would be——

Mr. BURTON. OK, I want to get to that. Financial incentives. So

we are going to have the Federal Government in effect mandating

through financial incentives to the States to do certain things?

85

Ms. THOMAS. Paul, you can correct me if I am wrong. My understanding is one of the things that the McCarthy Bill does is to provide the financing that some of the States might need in order to

help them, to enable them to computerize records and to bring

some of these records up to speed.

Mr. BURTON. OK. I think your goals are laudable. But let me just

tell you, in Indiana there have been incentives to create more policemen. And the Federal Government has put money into the program to create more policemen to cut the crime rate.

Then the Federal Government, after they hire the policemen, a

few years later, don’t continue to comply and fund those mandates.

So you have a situation there where you get into this thing, then

you have the Federal Government who is supposed to pay for these

things as an incentive, then they drop the ball. I want to tell you,

that happens an awful lot. You being a mayor, you know about unfunded mandates.

I don’t have a lot of time, so I want to go into some other questions. You said that there should be background checks, Mr.

Feinblatt, on people that are selling guns person to person, right?

Mr. FEINBLATT. No, I did not.

Mr. BURTON. Explain that to me again.

Mr. FEINBLATT. I did not discuss background checks, Congressman.

Mr. BURTON. You said people selling a gun to another person.

Mr. FEINBLATT. I didn’t discuss that. The only thing that I commented on today is the Tiahrt Amendment, which restricts law enforcement.

Mr. BURTON. I must have mis-understood.

Mr. HELMKE. I talked about that.

Mr. BURTON. I thought you said——

Mr. FEINBLATT. I think it was Mr. Helmke.

Mr. BURTON. Well, somebody, I thought it was you, said that

there should be background checks on a person to person basis, is

that right?

Mr. HELMKE. As I indicated, the Brady background check system

isn’t going to fully work if 40 percent of the sales of guns aren’t

covered by the Brady background check system. If the requirement

was that private sales, if private sales were covered, that if you got

the unlicensed seller exception out of the way, where people can go

to a gun show, go to the desk that is set up, say, I am an unlicensed dealer and therefore I can sell you the guns without the

background check, that would help our system work.

Mr. BURTON. The enforcement of that, I think, would be virtually

impossible. Because you get so many people who have guns and so

many people that sell them to other people or give them to other

people. Now, there is a liability statute, as I understand it, that

says if you give a gun or sell a gun to somebody else and they commit a crime, you have a responsibility and you can be sued. So I

think we already have a deterrent.

I want to ask one more question. I have a friend, and I won’t go

into the details, he and his wife are getting divorced. She was running around with another guy and he was crushed. He has a couple

of kids, and it is really a problem. As a result, he wanted to make

sure that he did the right thing, so he went for counseling, went

86

to a mental health center for counseling. The counseling worked,

he went to his church, that worked. He is now in good shape and

he is not any threat to his wife or anybody else, because he has

learned to cope with it.

But the mental health record of this man would be a deterrent

for him getting a gun, would it not?

Mr. HELMKE. No.

Mr. BURTON. Why not? Because there will be a record of it, won’t

there?

Mr. HELMKE. No. As I indicated, it only deals, the Federal law

and the implementation of who is defined as a prohibited purchaser

only deals with someone who has been involuntarily committed or

someone who has been adjudicated by a court as a danger to themselves or others because of mental illness. Going for marital counseling, getting that sort of voluntary treatment, therapy, medication, whatever, as long as you are not in front of a judge or someone who has that official capacity, then it doesn’t show up in the

records.

Mr. BURTON. Brian and I were talking a minute ago, and he may

want to pursue this question further. Are the mental health agencies in favor of what you are trying to do?

Mr. HELMKE. They are represented here, I believe, with another

panel. We have been talking to them. We don’t want a stigma on

mental health. We want people to go in for mental health question.

Mr. BURTON. That is not my question, Mr. Mayor. My question

is, the mental health organizations, are they in favor of what you

want?

Mr. HELMKE. I can’t speak for them. But I believe based on our

discussions that we can reach agreement here. They agree that individuals that are a danger to themselves or others because of

mental illness should not be purchasing guns.

Mr. BURTON. Thank you, Mr. Chairman.

Mr. KUCINICH. I thank the gentleman.

The gentleman from California.

Mr. BILBRAY. Thank you very much.

Mayor, seeing that we are stringing you out right now, let’s not

interrupt the pace.

Mr. HELMKE. I am used to it. [Laughter.]

Mr. BILBRAY. I appreciate it. I was a mayor for 6 years. When

I started off, I was 27 years old. It was rather an interesting situation to lead a city at that age that you had grown into. Half of the

staff and police chief used to change my diapers before I was in

there. [Laughter.]

But I would say, in fact, I remember, that was the day you were

in Cleveland. There were three of us, the new politicos.

Mr. KUCINICH. We all have something in common here.

Mr. BILBRAY. Ancient history.

Let’s talk about the gun show issue. Mayor, when is the last time

you went to a gun show?

Mr. HELMKE. Four years ago, I guess.

Mr. BILBRAY. Now, you said 40 percent of the sales of guns are

not regulated at this time?

Mr. HELMKE. It is estimated. Since we don’t keep records on

that, it is just an estimate.

87

Mr. BILBRAY. Is that 40 percent of what you are estimating, is

40 percent are being sold through gun shows?

Mr. HELMKE. It is not just gun shows. It is private sales. So it

could be gun shows, it could be classified ads, it could be neighbor

to neighbor.

Mr. BILBRAY. What percentage do you think is being sold

through gun shows unregulated?

Mr. HELMKE. I don’t have any hard data on that.

Mr. BILBRAY. What percentage of the gun shows sales do you

think is unregulated?

Mr. HELMKE. The 40 percent figure, I am under oath here, so I

am just guessing at this stage. I have seen the 40 percent figure.

I have seen others who say that at gun shows maybe it is 25 percent of the total sales or something like that.

Mr. BILBRAY. Then, boy, it definitely is not the gun shows that

I have seen around. The fact is, I would challenge anybody, and I

have had the NRA attack me on positions, I have had Brady support me on issues, but I think what we need to keep grounded is,

the overwhelming majority of people who are engaged in gun shows

are professionals who are licensed. Very few, very few, and I guess

in my mind I remember the son, the 12 year old son and the man

selling the black powder rifle with spare barrels, and I remember,

because I don’t shoot modern firearms. I am exempt from all these

rules. I can go buy my musket and my cap and ball and get anything I want over the counter.

But to imply that gun shows pose a major threat, when our big

exposure here, our big source of unsupervised purchases I think

doesn’t reflect the fact that the overwhelming majority of people at

gun shows are licensed dealers who are functioning under that vehicle.

Now, if we can just say, you guys want to take a shot at that,

I have some real problems with you eliminating the deal that most

of the people that are dealing, most firearms sold under the gun

show process is under some kind of regulatory deal. Counter my argument if you want to.

Mr. HELMKE. First of all, California does require background

checks at gun shows. So if you are going to gun shows in California, yes, they do background checks, because that is a State law

and that has been effective in reducing the amount of guns that get

into the illegal market in California.

Mr. BILBRAY. But the issue was not the background check. It was

the person, the regulations that were imposed on the people that

are actually selling the firearms.

Mr. HELMKE. Right. In California, if you are an unlicensed dealer, the way it works in California is, if you want to purchase from

the collector, they then take the form to the licensed dealer who is

in the booth next door, and for a $5 fee or whatever, they run the

instant check and come back with a you are approved type of thing.

So in effect, the so-called gun show loophole has been closed in

California and they do do the background checks.

Mr. BILBRAY. The point I was making, though, and Ms. Thomas,

if you want to go over it, you still are bound to this issue that the

overwhelming majority of people engaged in the sale of firearms at

gun shows are licensed dealers.

88

Mr. HELMKE. Most are. And actually, part of the point, though,

even in the statistics, most of the licensed dealers do a good job.

It is only 1 percent of the dealers that contribute 60 percent of the

guns.

Mr. BILBRAY. My point was that the fact that the perception that

this is an unregulated, no oversight, that it is a great majority of

moms and pops giving the sales, and let me just say, you have been

a mayor. I would really ask you the question: the ability of Government learning just not to over-reach, the ability of taking a theory

and making a practical application, the ability for even a local government, let alone a Federal Government, to regulate one on one

sales between individuals, and I give you an example. We don’t do

a very job at regulating those who are buying and selling cars

under the law as a dealer, a car dealer. If we can’t regulate the

buying and selling of cars under that, what makes you think we

can do it with firearms?

Mr. HELMKE. But we still have laws dealing with the sale of cars,

and you still have the licenses and you still have the process that

it goes through, the State Bureau of Motor Vehicles, whatever, to

get the license transferred and collect the sales tax.

Mr. BILBRAY. Mr. Helmke, my point being, even with the laws on

the books, we admit that those of us in Government—the crucial,

huge problem to try to enforce the sale of automobiles, something

you are registering, something you are putting on the street, something that is pretty big that you are not going to put in a box and

take home, if you are talking about now something that can go into

a box and be taken home, I just want to raise the issue of what

a huge, huge leap in practical application we have to make here.

That was just my point.

Mr. HELMKE. I think the whole point with this discussion of guns

is what we are doing now is not working. We need to find things

that just don’t sound good in law but are actually going to be effective. That is what I am trying to say. We make it too easy for dangerous people to get the weapons.

Mr. BILBRAY. And I am just saying, the big thing is what is effective is more important than what sounds good.

Mr. BILBRAY. I agree totally. I yield back.

Ms. THOMAS. If I can just add one thing. As you mentioned, if

you are talking about federally licensed firearms dealers, who are

the ones at the gun shows, and if they are running background

checks, and if you are a law-abiding gun owner, you know that the

Federal instant background system is incredibly quick and efficient. It is not very burdensome. It is something that for people

who know the rules and understand how the system works, it is

not a big deal to have this instant check run before they get their

guns. What it does is it takes the difference between someone who

should have a gun and is law-abiding versus someone who

shouldn’t have a gun. We make sure that person who is at the gun

show just gets that instant check run and we make sure they fill

the category.

Mr. BILBRAY. You miss my point. My point was perception that

this problem was a large portion of gun shows when in fact it is

a very small part of the problem within the gun shows, because the

89

overwhelming majority are already plugged into the registration

system.

Mr. HELMKE. I did just get a clarification here. According to an

ATF report from 1999, they estimate that 25 to 50 percent of gun

show sellers are private parties.

Mr. BILBRAY. I would totally disagree with that.

Mr. HELMKE. I am just saying that is what the 1999 ATF data

is.

Mr. BILBRAY. I would also point out that it is estimated that 1

percent of criminal guns are acquired at gun shows.

Thank you, Mr. Chairman.

Mr. KUCINICH. I thank the gentleman. We are going to go to another round of questions here. Congressman Burton, can you wait

5 minutes?

Mr. BURTON. Sure.

Mr. KUCINICH. We are just going to go to one more round of

questions. I would like to ask Mr. Helmke, if you have a fairly informed, quantitative assessment you can give us at this moment,

fine. If you don’t, I would like you to provide the information to the

committee with respect to the completeness of this records on data

related to prohibited persons with respect to criminal conviction

data. Can you tell us what percent? And if you don’t know, can you

provide it?

Mr. HELMKE. It is my understanding, I will double check this

and provide it. It is my understanding that in terms of felony conviction records that it is pretty close to complete.

Mr. KUCINICH. And mental health, you said 10 percent?

Mr. HELMKE. With all other disqualifiers, mental health, dishonorable discharges, restraining orders, outstanding warrants, that it

is just hit or miss, and 10 percent to 20 percent at best.

Mr. KUCINICH. OK. I want to go to Mr. Feinblatt. Could you tell

me, why did New York City feel that it was necessary to bring its

lawsuit against the gun dealers, I think it was 27 gun dealers?

Couldn’t it just call up and request that the ATF do something

about the flow of illegal guns into your city?

Mr. FEINBLATT. I think the problem is that the ATF is not keeping up their end of the bargain. As you know, I think that the Department of Justice in fact did a report that was issued, I think in

2002, which said that the ATF inspected about 41⁄2 percent of the

firearm licensees nationwide. So that is about 4,500, 4,600 of the

104,000 FFLs. They found in those inspections that in fact 42 percent of the inspected licensees had violations. And we’re not just

talking about one violation. What they found was on average, the

licensees had 70 violations each.

Nonetheless, in the face of data like that, the ATF revoked or refused to renew only 2.8 percent of the licenses of dealers with violations.

Mr. KUCINICH. Well, wait a minute. Why didn’t the ATF do what

you did, before bringing this suit, and that is, conduct aggressive

investigations to make sure that federally licensed gun dealers are

not breaking the law and allowing straw purchases?

Mr. FEINBLATT. Why does the ATF not do it? Because the ATF

is not committed to this as part of their mission. And there are several reasons why.

90

Let me give you some disturbing evidence, which is even more

disturbing than the numbers. In this same report, investigators

interviewed ATF inspectors. What they found was that 78 percent

of the inspectors that were interviewed said that when doing an inspection, they did not look for signs of straw purchases whatsoever.

Another 67 percent of the inspectors said that they rarely referred

information gathered during an inspection for criminal investigation by the ATF, because they actually didn’t believe that the ATF

would followup.

So what we have now is a culture within the ATF that isn’t taking their mission seriously.

Now, let me tell you, it is not just the ATF. Congress hasn’t

made it any easier. As you know, Congress has in some ways tied

the hands of the ATF. It has restricted inspections of dealers to

once per year. It has required licensed dealers, it has prevented

ATF from requiring licensed dealers to physically check their inventory against their records. It has prevented ATF from revoking

a license until all legal means are exhausted, which can take years,

even if they find that a dealer has been convicted of a felony.

So I think that what we have is a culture of lax enforcement

within the ATF, and I think that Congress has abetted that and

aided that.

Mr. KUCINICH. And you are saying that with respect to the

Tiahrt Amendment, for example, is that right?

Mr. FEINBLATT. I am saying that in effect to the restrictions that

we placed on ATF, and the fact that the restrictions that we placed

on local law enforcement getting information about crime gun trace

data is just one more example of trying to shield the gun industry.

Mr. KUCINICH. With the Tiahrt Amendment in effect, could you

now obtain the type of trace data that you have used from the ATF

and use it in a civil suit?

Mr. FEINBLATT. Absolutely not. Don’t even think about a civil

suit. At least 20 States in the country have State licensing regulations, trace data is not admissible in those State regulatory hearings. So what you have is the Federal Government basically stopping the dam of information.

Mr. KUCINICH. Let’s go then to the consent decree that New York

worked out about the monitoring that went on, that the dealers

settled with New York about. You had a consent decree, the dealers

said, look, we are going to settle up with you, New York. What

happened with that?

Mr. FEINBLATT. What we did was, we sued 27 dealers from five

States. Already 12 of them, nearly half, have settled with the city

of New York. We haven’t looked to put anybody behind bars. That

isn’t our goal. We haven’t looked to put anybody out of business.

That certainly is not our goal.

What the settlements require is that a special master be appointed to oversee the business with the cooperation of the FFL for

a period of 3 years. If there are continued violations of Federal,

State or local laws, the special master has the right to impose a

penalty and if there are violations, the 3-year clock resets.

Mr. KUCINICH. Just one final question before we go back to Mr.

Burton, and that is from a policy standpoint, would you tell this

91

committee what benefits New York City was able to achieve in entering into this consent decree?

Mr. FEINBLATT. The basics of law enforcement are trying to define who the bad guys are. Most dealers are good, honest

businesspeople. ATF tells us that only about 1 percent of the dealers are responsible for 50 percent of the crime guns.

But what trace data does is it actually pinpoints who are the

people who are breaking the law. What New York has tried to do

is use that trace data to actually pinpoint in a very precise way

who is breaking the law and then come to some agreement with

them. That is what our goal is. Our goal isn’t to interfere with legal

dealers. Our goal isn’t to question the right of people to have guns.

Our goal is plain and simple, it is to enforce the law.

Mr. KUCINICH. So the Federal Government kind of responded to

this investigation and lawsuit and consent decree in a favorable

way? Did ATF say, hey, New York, we have something to learn

from you?

Mr. FEINBLATT. Absolutely not. What the Federal Government

did was threaten New York City, just like——

Mr. KUCINICH. What do you mean, threaten?

Mr. FEINBLATT. Basically wrote a letter to the city of New York

saying that, under certain circumstances, if you continue enforcing

the law, mind you, you could be subject to criminal penalties.

But what is so telling here is that we have a pattern. The White

House, the FOP and Department of Justice has now recently taken

the Tiahrt Amendment one step further. What they are now suggesting is that every single police officer, every rank and file police

officer who wants to trace a gun, the basic thing that you want to

do if you are trying to catch criminals and put them away, or try

to catch traffickers, is to get data. What they have said is that

every police officer needs to certify the purposes for seeking the

trace data and if those purposes are broader than the investigation

of one gun at a time, that somebody is liable to go to prison for 5

years.

The real question is, who does that help and who does that hurt.

That only helps one people, criminals. Who does it hurt? It hurts

law enforcement. There is a basic choice here. Who do you want to

protect? Do you want to protect cops or do you want to protect

criminals? The city of New York wants to protect cops. It seems

that the White House, the Justice Department and the ATF, by

making the rank and file police officer certify the purposes for the

request of data and threatening them with jail, wants to really

hurt cops and help criminals.

What is so striking about this amendment is just 1 year ago, the

Department of Justice itself, when considering the idea of having

police officers face criminal penalties for doing their job, wrote to

Congress that this would have a chilling effect, it would be deleterious to law enforcement, it would chill police officers from doing

their job by requesting key data and by sharing key data.

Mr. KUCINICH. I thank the gentleman. Whatever you have that

you would like to submit for the record on that, I would appreciate

it. This has gone on about, more than 9 minutes, so I just want

to say to Mr. Burton and Mr. Bilbray, if each of you would like to

consume 9 minutes, you are entitled to that each.

92

Mr. BURTON. First of all, let me just say that people who don’t

agree with you do support law enforcement and policemen. The implication of some of your remarks were that the people who don’t

agree with you aren’t caring enough about the police. I don’t think

that is true. A lot of police officers around this country don’t agree

with the position you have taken. I don’t know the percentage, but

I am sure there are a lot of them.

How many guns are there in America? Do you know?

Mr. FEINBLATT. I do not know. Mr. Helmke probably has that figure on the tip of his tongue.

Mr. HELMKE. There are estimates of around 200 million.

Mr. BURTON. Two hundred million.

Ms. THOMAS. More than that.

Mr. BURTON. You are going to keep track of 200 million guns?

What you are talking about, Mayor Helmke, is that if there is a

sale from one individual from another individual, there ought to be

a background check. Two hundred million guns. You have to be joking.

Mr. HELMKE. We are awash with guns in this country. That is

part of the problem.

Mr. BURTON. And to start creating a bureaucracy and making

law-abiding citizens criminals if they sell a gun to some other lawabiding citizen, it doesn’t make any sense to me.

Mr. HELMKE. How do they know they are a law-abiding citizen

if they don’t do a background check before they sell it. That is the

problem. Most of the people aren’t selling their guns. A lot are collections, a lot are handed down from their family, a lot they use.

Many people who own have a lot of guns. While there are that

many guns out there, there are also estimates that only 25 percent

of the households have a gun, too, I think is the figure. So those

guns are basically——

Mr. BURTON. You said 25 percent of the households. Where did

you get that figure?

Mr. HELMKE. I think that is——

Ms. THOMAS. I think some of that is through the Department of

Justice, they come out with reports. I think it might be cited in our

testimony if you take a look.

Mr. BURTON. But it is an estimate?

Ms. THOMAS. Yes, it is an estimate. Because there is no system

of registration of guns in this country right now. So all of this data

is generally collected through estimates in the numbers that we do

have.

Mr. BURTON. Let me ask you a question. You just said there is

no registration in this country right now. Are you advocating registration of guns?

Ms. THOMAS. I certainly think there are ways to go about it that

are feasible. I think that some kind of registration system, like we

have for cars in this country, would certainly be helpful in knowing

how many we have, knowing where they are and being able to understand a little better what the issue is.

Mr. BURTON. Let me just tell you, there are an awful lot of people, there are 200 million guns out there, there are an awful lot

of people that are concerned about the second amendment and

their constitutional rights. They are afraid if you register all guns,

93

at some point in the future there may be a tyrannical government

that uses the registration of those guns to disarm everybody in this

country in violation of the second amendment. I see you shaking

your head back there. It is a fact. People are concerned about that.

Ms. THOMAS. I absolutely hear what you are saying, and certainly a discussion of the second amendment is a very interesting

legal argument. I would hold that the Supreme Court of this country, in the 200 cases that have come since Miller in 1939, have held

that the second amendment is not a bar to sensible, sane, commonsense gun regulation, that those laws, things like background

checks, have been upheld hundreds of times by the courts of this

country.

So the second amendment, with all respect, is not a prohibition

on common sense gun regulations that would save lives.

Mr. BURTON. In the sense of gun regulations, I agree with you.

But you are talking about registration, and that is a different subject. I am certainly not for that.

Mr. Chairman, I don’t think you need to ask any more questions.

Mr. FEINBLATT. Congressman, may I just respond to the comment you made? This is not an issue of whether you disagree with

one position or don’t agree with another, whether you are for cops

or against cops. This is really an issue of whether you are going

to threaten cops with imprisonment for doing their job. That is actually what the Justice Department, the White House and the ATF

are now calling for by requiring police officers to certify. Everybody

in the law enforcement world just about sees this issue for what

it is. That is why 10 national law enforcement organizations oppose

the Tiahrt Amendment. It is why over 20 State and regional law

enforcement organizations oppose the Tiahrt Amendment. It is why

over 175 police chiefs from around the country oppose the Tiahrt

Amendment. And it is why 225 mayors, Republicans, Democrats

and Independents, oppose the Tiahrt Amendment. They want cops

to do their job.

Mr. BURTON. How many police chiefs are there in America?

Mr. FEINBLATT. There are obviously many——

Mr. BURTON. Well, how many?

Mr. FEINBLATT. I don’t have the number.

Mr. BURTON. You said 175 police chiefs. I would just like to know

what percentage of the——

Mr. FEINBLATT. I don’t have the percent, but I would be delighted

to give that to you.

Mr. BURTON. I was just given a note from my staff here. It says,

both the BATFE and the Fraternal Order of Police oppose release

of trace data.

Mr. FEINBLATT. It is true. The FOP——

Mr. BURTON. But you didn’t say that, though. You just cited a

bunch of people that oppose you and a bunch of groups that oppose

you. Don’t you think it is important also to say how many support

the other side?

Mr. FEINBLATT. There is one police organization in this country

that supports the Tiahrt Amendment. A single police organization.

Stack that against 10 national police organizations, 22 State and

regional organizations, 175—it is a lone voice.

94

Mr. BURTON. What is that lone voice, the Fraternal Order of Police?

Mr. FEINBLATT. It is the Fraternal Order of Police. But——

Mr. BURTON. The Fraternal Order of Police, the majority of the

policemen in this country are members of the Fraternal Order of

Police.

Mr. FEINBLATT. Yes, except that——

Mr. BURTON. You’re saying one organization. But that is the majority of the policemen in this country. And the BATFE also opposes it.

Mr. FEINBLATT. The Fraternal Order of Police doesn’t speak with

one voice. I would refer you to this letter from the Illinois, for instance, Fraternal Order of Police, which constitutes 10 percent of

the entire membership of the Fraternal Order of Police.

Mr. KUCINICH. Without objection, we will enter that into the

record.

[The information referred to follows:]

95

96

97

98

Mr. BURTON. That is fine. What about the other 90 percent?

Mr. FEINBLATT. They are on record absolutely opposing it.

Mr. BURTON. What about the other 90 percent?

Mr. FEINBLATT. They are not alone, and I think that you will see

many——

Mr. BURTON. What about the other 90 percent? You just said 10

percent. What about the other 90 percent?

Mr. FEINBLATT. With all due respect, one organization, the Fraternal Order of Police, which has basically taken the position that

the reason why the Tiahrt Amendment is a good thing is this. They

have said that it does two things. It protects dealers from harassment. While 85 percent of dealers in this country have absolutely

no traces, 1 percent of the dealers account for nearly 60 percent of

the traces.

Every police organization that represents chiefs, who look at

crime on a macro level, not on a one at a time level, opposes it.

So what is the other reason that the FOP says that we shouldn’t

release trace data? They say, well, it could expose undercover operations.

However, when the ATF and the FOP have been asked, under

oath, whether they can give one single example in Federal court of

an instance where an undercover operation was compromised, they

were unable to do it. When Todd Tiahrt was asked whether he can

give one single example of an undercover operation that has been

compromised, he has been able to do it.

In fact, the real reason that we have the Tiahrt Amendment, I

think we can find by looking at the Washington Post from July 21,

2003, when Todd Tiahrt was asked why he put in the Tiahrt

Amendment——

Mr. BURTON. I am not asking you about Todd Tiahrt. I am not

asking that question.

Mr. FEINBLATT. Sir, the FOP supports Todd Tiahrt. We are talking about the FOP.

Mr. BURTON. No, no, no, no. Just the——

Mr. FEINBLATT. The reason that they are supporting the Tiahrt

Amendments is because ‘‘I wanted to make sure I was fulfilling the

needs of my friends who are firearms dealers, and the NRA officials said they were helpful in making sure I had my bases covered.’’ What we have here is another example of Congress bending

over backward——

Mr. BURTON. All right. You just go on and on and on.

Mr. FEINBLATT [continuing]. To protect the gun industry.

Mr. BURTON. You have made your point. Let me just say this to

you, or ask you this question. How many people are in the FOP

around the country?

Mr. FEINBLATT. Several hundred thousand, about 300,000, I

think.

Mr. BURTON. And how many oppose the Tiahrt Amendment and

take your position?

Mr. FEINBLATT. There are many States, there are States that are

fractured——

Mr. BURTON. How many?

Mr. FEINBLATT. I don’t have that answer.

Mr. BURTON. You should.

99

Mr. FEINBLATT. Why should I? I can tell you this.

Mr. BURTON. Because you are making categorical statements

that can’t be verified.

Mr. FEINBLATT. I am not making a categorical statement. One

police organization opposes it, and 10 nationals, 1 police organization supports it, 10 nationals oppose it, 22 State and regionals oppose it, 175 police chiefs. I do addition that way.

Mr. BURTON. The FOP represents more than all of those you

named. Combined. That is it. I have no more questions.

Mr. KUCINICH. I want to thank the gentleman from Indiana. I

want to ask the witness if you could provide this committee with

the qualification and the quantification of the various groups that

have taken positions on this that you offer to this committee as

proof of the position that you hold.

Mr. FEINBLATT. Absolutely.

Mr. KUCINICH. We would appreciate it very much.

[The information referred to follows:]

100

101

102

103

104

105

106

107

108

109

110

111

112

Mr. KUCINICH. Also without objection, the Washington Post article that you mentioned, if it could be included in the record, and

the letter from the Illinois FOP, if it could be included in the

record. Without objection.

[The information referred to follows:]

113

114

115

Mr. KUCINICH. Mr. Bilbray, you have 9 minutes.

Mr. BILBRAY. Thank you, Mr. Chairman. I hope to not use it all

up.

I would first of all like to thank Ms. Thomas. I think too often

we don’t talk about where we really want to go with these issues.

Ms. Thomas, I think it might have been a slip of the tongue, but

you indicated you really would like to see national registration of

all firearms within the Nation.

My question to you though, is, you made a comment about registering motor vehicles. What State requires that you must register

a car to own a car?

Ms. THOMAS. I believe the State of California does. You and I are

both from California and I believe I registered my car, and that is

because I had to. When a police officer pulls me over and they ask

me for my registration, I believe I need to provide that.

Mr. BILBRAY. Ma’am, let me clarify. Are we not required to register a car simply to own a car? You are required to register a car

to operate that car on a public right of way. Ownership of a motor

vehicle, motorcycle, car, tractor, whatever, is not regulated by the

State for ownership. It is regulated for use on public right of ways.

So there is a distinct difference here, when we talk about this,

that from now on, I am just saying as a local government guy,

there is a huge difference, and I think now if you think about it,

if you own a motorcycle that is just going to be used off-road, you

don’t have a registration, right? You don’t have to license it then.

But if you use it on the road, there is a distinct difference. I would

use, a fair comparison would be the fact that we do register and

permit those who want to carry a firearm, loaded, in the public. So

there is a distinct difference.

So in the future, I hope that when you bring this up, you think

about the fact that to drive a car on California roads, you are required to register it. But mere ownership is not a registration.

Ms. THOMAS. I brought that up as an example of ways in which

we as a society have balanced the rights of the individual against

the risk to society. We take steps in order to ensure that there are

safety provisions, preventive safety provisions and tracking in

place. Certainly, I trust you are 100 percent about car registrations.

Mr. BILBRAY. From now on, there was a mis-speak there, to own

a car, you don’t have to have it registered, to drive it on a public

street, you do, though.

Ms. THOMAS. If you say so, then I am sure you are correct.

Mr. HELMKE. In Indiana, it is a little bit different. If it is an operable vehicle, you do need to have it licensed and registered.

There are distinctions.

Mr. BILBRAY. Usually, it is because, specifically on a tax purpose,

there is a personal property tax, and that is used to levy a tax.

Mr. HELMKE. I know in Indiana the concern is abandoned vehicles, too, on the streets that are inoperable.

Mr. BILBRAY. Junk. And there you come back to—John, your city

sued the car, I mean, the manufacturers of the firearms, because

the ATF was not enforcing the law?

Mr. FEINBLATT. What I was referring to, no, is gun dealers. New

York City, along with many other cities, does have a suit against

116

manufacturers. However, what I referred to in my testimony and

the discussion here today was a suit against 27 gun dealers in five

States.

Mr. BILBRAY. In five States?

Mr. FEINBLATT. In five States.

Mr. BILBRAY. And you have other activities against those who

manufacture?

Mr. FEINBLATT. We do have a pending suit against manufacturers that requires them to conduct basically a code of conduct which

will require them to take notice of dealers who have high traces

and continue to sell illegally.

Mr. BILBRAY. Are they violating the ATF regulations?

Mr. FEINBLATT. The dealers, which is the suit I talked about, are

absolutely violating them.

Mr. BILBRAY. OK, you said you are suing them because ATF is

not doing the work. I am talking about the lawsuits against gun

dealers.

Mr. FEINBLATT. We are suing them, what we are actually suing

the dealers for is violating the law. All we are trying to do is enforce the law.

Mr. BILBRAY. OK, you have one group that are the dealers you

are suing because they are violating the law. Are the gun manufacturers violating the law?

Mr. FEINBLATT. The gun manufacturers is a completely different

type of suit. It is a suit where we are basically calling upon them

to take notice of illegal sales practices and just adopt a code of conduct. But when you talk about the dealers, what we are suing is

27 dealers who flagrantly sold guns to straw purchasers. They are

on tape, caught red-handed. What we are only asking for is to enforce the law. That is all that we want to do. Most gun dealers play

by the rules. Most gun dealers are absolutely honest. But breaking

the law——

Mr. BILBRAY. Getting back to this issue, though, you have two

sets of lawsuits now and you are willing to defend one based on the

fact that they are violating the law. I went back and said you had

another one——

Mr. FEINBLATT. I agreed.

Mr. BILBRAY. You are suing them because they make guns or because they are breaking the law?

Mr. FEINBLATT. We are suing them because they are not taking

notice, it is a civil suit and they have a responsibility, it is a negligence action based on the fact that they continue to supply guns

to dealers who are breaking the law.

Mr. BILBRAY. Do you have that kind of lawsuit to the manufacturers of alcoholic beverages?

Mr. FEINBLATT. We actually do, certainly——

Mr. BILBRAY. Beer, wine?

Mr. FEINBLATT [continuing]. Sting operations all the time——

Mr. BILBRAY. I meant the manufacturers, the national manufacturers of alcohol, as opposed to——

Mr. FEINBLATT. No, we don’t, but there is a big difference, which

is, the manufacturers actually know who are the illegal gun dealers.

117

Mr. BILBRAY. Oh, so they do, so they are breaking the law, you

are saying?

Mr. FEINBLATT. No. What I am saying is they are on notice. I

don’t believe the manufacturers of Camel cigarettes knows when

the corner bodega sells illegally to a minor. But there is no

question——

Mr. BILBRAY. So you are saying, I thought you said that the gun

dealers weren’t breaking the law. Now you are saying they are,

they are knowingly breaking the law?

Mr. FEINBLATT. The gun dealers are without a doubt breaking

the law.

Mr. BILBRAY. No, but I meant the gun manufacturers.

Mr. FEINBLATT. I said that the gun manufacturers are on notice

that they continue to supply to dealers that are breaking the law.

All we are seeking in that manufacturing suit, along with many

other cities who have brought similar suits, is that they stop selling

to those.

Mr. BILBRAY. Is it against the law for them to make those sales?

Mr. FEINBLATT. It is a, I think that it creates a nuisance, it creates a civil nuisance and that is a colorable claim under law.

Mr. BILBRAY. OK, that’s why you are going civil, as a nuisance.

Mr. FEINBLATT. We are talking about civil cases, absolutely.

Mr. BILBRAY. I would ask, you are a high ranking individual in

law enforcement, or in the city. Is New York City a sanctuary city

for illegal immigrants?

Mr. FEINBLATT. Absolutely not. And I am not sure what relevance it has to today’s testimony.

Mr. BILBRAY. The activity of information sharing, the activity of

focusing on certain deals, city of New York in the past has had

major problems. I don’t know what your status at this time. But

we have had open discussion about not having law enforcement cooperate with Federal law enforcement, not sharing information

with Federal law enforcement over on one side. I just feel it is really inconsistent for the city of New York, who has in the past said,

we are not going to participate with the Federal Government on

this issue, because we are worried about privacy, we are worried

about individual rights, we are worried about violation of some, a

segment of our population because it is so important to protect

these individual rights and this privacy, and then on another issue

for the same city to say, it is ridiculous to worry about those, not

sharing information, it is ridiculous to worry about the privacy and

moving it over. I just have to say, John, I really see an inconsistency with the history.

Mr. FEINBLATT. There would be an inconsistency if it were true,

Congressman. However, let me tell you, because in fact I have testified before Congress on this very issue. It is certainly our policy

to notify people when there have been criminal convictions.

The problem is, actually that the INS has, makes it extremely

difficult to make these reports. In fact, I wish I had a document

from the INS which basically goes through step by step what instructions to INS officials, what they are to do when they receive

a call from a local. And let me paraphrase it, since I don’t have it

in front of me. The instructions go something like this: if you get

a phone call from a local law enforcement agency trying to report

118

that a person who is undocumented has committed a crime, tell the

caller that you should now write a letter. If they then follow that

up and write a letter, rather than making a phone call as instructed, you should then instruct them to have their supervisor

write a letter. If they then write a letter according, if the supervisor then writes a letter, advising of the conviction or the arrest

of somebody, you should then, and I can’t remember the next steps

of it, provide documentation.

So the problem really is that the INS has historically, and I want

to be truthful, I don’t know whether this has been changed, but

historically has made it extraordinarily difficult for locals to do it.

Because in fact, the INS has not wanted to enforce these laws.

Mr. BILBRAY. Well, I appreciate that concern and the history of

a previous administration, at least, and I would be interested to see

what this administration looks at, cooperation with the Federal

Government or specific direction to law enforcement, that unless

somebody has committed other crimes, that individuals who are illegally present in the United States would not be apprehended or

engaged by New York law enforcement.

My biggest point is this. The privacy issue needs to be addressed

on both sides. But the consistency of law enforcement to say, one

issue we are going to be engaged in lawsuits and litigation on the

other side, we are basically going to be saying, unless one of our

city laws are broken or State laws are broken, we are not going to

be engaged.

Mr. KUCINICH. The gentleman’s time has expired.

Mr. FEINBLATT. Let me just respond.

Mr. KUCINICH. The gentleman’s time has expired.

Mr. FEINBLATT. Gun trace data——

Mr. KUCINICH. Sir?

Mr. FEINBLATT [continuing]. Only has crime data in it. So the

only privacy that it is actually protecting is criminals.

Mr. KUCINICH. The witness is out of order. Actually, the gentleman’s time has expired. I appreciate your presence here, but I

would just appreciate your following the decorum of this committee.

Mr. BURTON. Mr. Chairman.

Mr. KUCINICH. The gentleman’s time has expired. I want to

thank this panel for its presence.

Mr. BURTON. Can I submit something for the record?

Mr. KUCINICH. The gentleman certainly can, without objection.

[The information referred to follows:]

119

120

121

122

123

124

Mr. KUCINICH. All Members will have 5 days to submit testimony. I want to thank each of the witnesses for being here. Your

presence is very much appreciated and I am grateful for the testimony which you have brought to this committee.

This is the opening of a much longer discussion and your presence has helped to ensure that we were able to make a positive beginning. So I am going to dismiss the first panel and ask for the

second panel to be ready.

We are now going to move to our second panel of witnesses on

this Domestic Policy Subcommittee hearing entitled, ‘‘Lethal Loopholes: Deficiencies in State and Federal Gun Purchase Laws.’’ I

would now ask the witnesses to, first I will introduce them.

We have Rachel Brand. Rachel Brand was confirmed as Assistant Attorney General for the Office of Legal Policy of the U.S. Department of Justice on July 28, 2005. In her position, she manages

the development of a variety of civil and criminal policy initiatives,

the creation of departmental regulations and the Department’s role

in the confirmation of the President’s judicial nominees. Her office

also oversees legal policy for the ATF and the FBI.

Before her current appointment, Ms. Brand worked in the Office

of Legal Policy principally on terrorism issues; served as an associate counsel to the President and clerked for Supreme Court Justice

Anthony Kennedy.

In addition to Ms. Brand, the Department of Justice has made

Steve Rubenstein, the ATF’s Chief Counsel, available to sit at the

witness table and respond to any questions Members may have regarding the ATF’s role in enforcing firearms law, including the

Brady Act. Stephen Rubenstein was appointed Chief Counsel of

ATF on September 29, 2003. He serves as the principal legal advisor to the ATF’s director and oversees legal services related to,

among other laws, Federal firearms and explosives laws.

His office provides technical assistance to congressional committees in legislative drafting sessions; makes recommendations to the

Department of Justice concerning litigation and furnishes legal advice and assistance to other Federal, State and local agencies including the U.S. attorneys and Justice Department officials in the

prosecution of ATF cases. Prior to becoming Chief Counsel, Mr.

Rubenstein held the position of Associate Chief Counsel for 5 years.

It is the policy of this subcommittee and also of our full committee, the Committee on Oversight and Government Reform, to swear

in all witnesses before they testify. I would ask that the witnesses

rise, raise your right hands.

[Witnesses sworn.]

Mr. KUCINICH. Thank you. Let the record reflect that the witnesses answered in the affirmative.

As in panel one, I ask our witnesses to give an oral summary of

their testimony. Keep the summary under 5 minutes in duration.

I want you to keep in mind that your complete written statement

will be included in the hearing record. Ms. Brand, you may begin

your testimony.

125

STATEMENT OF RACHEL L. BRAND, ASSISTANT ATTORNEY

GENERAL FOR LEGAL POLICY, DEPARTMENT OF JUSTICE,

ACCOMPANIED BY STEPHEN R. RUBENSTEIN, CHIEF COUNSEL, BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES

Ms. BRAND. Thank you, Chairman Kucinich, Congressman Burton. I appreciate the opportunity today to talk about the National

Institute Criminal Background Check System [NICS]. The Brady

Act required the Attorney General to establish a system that gun

dealers can contact to determine whether a prospective gun purchaser is prohibited under Federal or State law from buying a gun.

The NICS is that system.

The NICS has had a significant impact in preventing prohibited

persons from buying guns from gun dealers. Since 1998, as you

mentioned earlier, chairman, over 75 million background checks

have been processed by the NICS. Those checks have denied about

1.1 million gun transfers to persons prohibited from possessing firearms.

The NICS has also gone a long way toward fulfilling the Brady

Act’s requirement that background checks be completed promptly,

so that lawful purchasers can buy a firearm without unreasonable

delay. Currently, 92 percent of NICS checks are completed during

the initial phone call, usually within a minute. Ninety-five percent

of all checks are completed within 2 hours.

The NICS is a computerized system that queries several national

data bases simultaneously, including what we call the III, which is

a data base of criminal history records, the NCIC, which includes

among other things records of protection orders and wanted persons, and the NICS index itself, which includes other records that

are relevant specifically to gun background checks.

The effectiveness of the NICS in preventing gun transfers to prohibited persons depends directly upon the availability of records to

the system. Although the Brady Act requires Federal agencies to

provide the NICS upon the Attorney General’s request with information about those who are prohibited from buying firearms.

States are not required to provide any information to the NICS. So

to the extent that they do so, they do so voluntarily.

To improve the availability of State records of the NICS, NCIC

and III, the Brady Act established the NCHIP Federal funding program, which since 1995, has awarded over $500 million to the

States. With the help of NCHIP, the States have come a long way

in increasing the automation and accessibility of records to the

Federal data bases.

In addition to providing funding to the States, the FBI and ATF

have worked tirelessly since the inception of the NICS to encourage

States to provide more records to the system. This outreach has included education of State officials about the NICS and about the

contours and parameters of the Federal firearms prohibitors and

given technical support to State agencies that hold the records.

Specifically relevant to the Virginia Tech tragedy, both the ATF

and FBI have done outreach and provided education to States and

encouragement to provide more mental health records to the NICS

system. One of the most recent examples of that is a letter sent

yesterday by ATF to all the States, explaining the Federal mental

126

health prohibitor and offering to help the States determine whether

their records meet the Federal standard. If we have not already

provided you with a copy of that letter, we will do so after the hearing.

ATF also plans to amend its Form 4473, which is the form that

the person fills out when they go to a gun dealer to buy a gun, to

provide more information to the prospective buyers about the parameters of the mental health disqualifier.

Despite the Department’s efforts and the tremendous progress

that has been made in improving the completeness of records available to the NICS, there are still significant shortcomings in the

system. They include, for example, the fact that about half of III

arrest records are missing final dispositions, and the fact that

fewer than half of the States provide any mental health records to

the NICS, even though States that do provide records, only a handful of those provide any significant number of mental health

records to the NICS.

We are continuing our efforts to encourage the States to provide

more information to the NICS and several States are actively engaged in changing their law or in taking other efforts to provide

more information to the NICS.

So I appreciate the opportunity to testify today. I would like to

note that Federal firearms prosecutions are one of the Department’s top priorities. We take that very seriously through Project

Safe Neighborhood. I would note that since fiscal year 2001, when

Project Safe Neighborhood was stood up, we have charged over

71,000 defendants with gun charges. The number of gun prosecutions starting in the 6-years from fiscal year 2001 to fiscal year

2006 is more than twice the number of Federal gun prosecutions

that was brought in the previous 6 year period. So I want the committee to know that we take enforcement of the gun laws very seriously.

Thank you very much, and I would be happy to answer your

questions.

[The prepared statement of Ms. Brand follows:]

127

128

129

130

131

132

133

134

135

136

137

138

139

140

141

142

143

144

145

Mr. KUCINICH. I thank the gentlelady.

Mr. Rubenstein.

Mr. RUBENSTEIN. I am happy to be here and would be happy to

answer any questions.

Mr. KUCINICH. You are going to be here just to answer any questions?

Mr. RUBENSTEIN. Yes.

Mr. KUCINICH. OK. Thank you very much.

Ms. Brand, in your written testimony, you have outlined the

amount of data submitted into NICS. But what is particularly important to establish here is how much data NICS would contain if

the data base were complete and consequently, how much data is

still missing. It is kind of a continuation of the discussion from the

last panel. That is what I had asked your staff to prepare for this

hearing. I am disappointed that it hasn’t been produced yet. Do you

have it now?

Ms. BRAND. Are you asking how many records exist, for example,

in mental health that we do not have? Is that what you are asking?

Mr. KUCINICH. I am asking, how much data is missing from your

data base?

Ms. BRAND. It is really impossible for us to know that, to take

the mental health disqualifier, for example, as was discussed in the

first panel, under Federal law, a person is prohibited from possessing or purchasing a gun if they have been adjudicated by a court

or other government agency as a danger to themselves or others as

a result of mental illness, or if they have been involuntarily committed.

We at the Federal level have no way of knowing how many such

persons are out there. In some States, it would be difficult for the

State even to know right now, because most of those adjudications,

or many of those adjudications, will be made by State courts in all

the different counties around the State, with no centralized——

Mr. KUCINICH. So what is the completeness of your data base,

then, at NICS?

Ms. BRAND. We know that very few States provide significant

numbers of mental health records to the NICS, and so we know

that it is substantially incomplete. We just don’t know the number,

the total number that might be out there.

Mr. KUCINICH. I will get more specific. Let’s say including all the

Federal prohibited persons categories, what is the percentage of

data that has been entered into the NICS data base in a form that

can be used in the Brady background check?

Ms. BRAND. The best data that we have concerns criminal dispositions. My written testimony does provide a little bit more detail

on that. We think about three out of four criminal records are

available to the NICS, so about 75 percent available to the NICS

in some form. The main problem with criminal history records is

that although the arrest record may go into the III at the beginning, less than half of those records have a final disposition in the

system. So if someone who had been arrested goes to buy a gun,

then NICS may see in the system that there was an arrest, but

have no idea whether the person was actually convicted. Simply

being arrested doesn’t prohibit one from buying a firearm. Having

been convicted of certain crimes does. So then the NICS system

146

would have to go and contact the State to find out what the final

disposition was.

Mr. KUCINICH. How deficient is that, then, with respect to State

reporting? Let’s talk about criminal history.

Ms. BRAND. We think three out of four criminal records are in

the system in some form, but only about 44 percent of those have

final dispositions.

Mr. KUCINICH. What about mental health?

Ms. BRAND. We don’t know what the total universe of mental

health records is, so we are unable to know.

Mr. KUCINICH. What do you have in terms of the data base? Do

you have anything?

Ms. BRAND. We know the total number of records that we have.

We know how many States provide any records, which is 22 States

provide any records. But many of those States have only provided

maybe one or two records ever to the system.

Mr. KUCINICH. So you are saying that data base, as far as with

respect to mental health reporting, wouldn’t be——

Ms. BRAND. Is very incomplete.

Mr. KUCINICH. Right. What about domestic violence records?

Ms. BRAND. Well, domestic, if you are talking about misdemeanor

crimes of domestic violence, we believe that many of those are in

the system. The difficulty there, though, is that they would be provided to the III as an assault charge, maybe. But the State

wouldn’t flag it, necessarily, as a crime of domestic violence. So

when a person goes to buy a gun, the NICS would have to take a

look at the record and try to then contact the State and go behind

it and figure out whether it was a crime of domestic violence or

not.

Mr. KUCINICH. Excluding domestic violence convictions, what

percentage of conviction data that are relevant to the prohibited

persons have been submitted by the Federal Government and the

States to the NICS data base?

Ms. BRAND. The best information I have is that we have three

out of four criminal records. I believe that includes both Federal

and State. Yes.

Mr. KUCINICH. In your written testimony, you state that fully

one half of disposition data, that is data regarding whether an individual charged with a crime was ultimately convicted, is not currently in that NICS data base. So taking the deficiency of disposition data into account, I would like to see if you want to revisit

your estimate.

Ms. BRAND. I am not sure I want to do the math on the fly, Mr.

Chairman. But we could see if we could provide better information

about the statistics to you after the hearing.

Mr. KUCINICH. Actually, we want to have that kind of a dialog

with you.

Ms. BRAND. It is 44 percent of 75 percent, I guess, whatever that

is. Because we have 75 percent of all criminal records, 44 percent

of those have complete dispositions, that is my understanding.

Mr. KUCINICH. So that would be about 33 percent or something

like that. OK. So given your conclusion that the NICS data base

is deficient and substantially incomplete, and the testimony you

have heard from witnesses on the first panel that the pending legVerDate 11-MAY-2000 09:25 Jul 18, 2007 Jkt 000000 PO 00000 Frm 00150 Fmt 6633 Sfmt 6633 C:\DOCS\35771.TXT HGOVREF1 PsN: HGOVREF1
147

islation, the NICS Improvement Act, would improve the quantity

and quality of data in NICS, does the Department of Justice have

a position on the NICS Improvement Act and H.R. 297 that provides both what you could carrot and stick to States to report to

NICS?

Ms. BRAND. We support the bill’s general aims of encouraging,

providing a financial incentive to States to provide more information. We actually already do something similar through the NCHIP

program that I mentioned in my testimony and that was discussed

in more detail in my written testimony. We most likely will have

some technical comments on the bill and with respect to what the

right dollar amount is, we haven’t taken a position on that. But we

certainly support its general aims.

I thank you, Ms. Brand.

Mr. Bilbray.

Mr. BILBRAY. Mr. Chairman, I just wanted to clarify for the

record, because there was a statement made here, a testimony, the

city of New York was talking about the fact that they were sort of

outraged that the criminal activity, information was not being

shared with the city of New York. When the witness was asked

about the sanctuary status for illegals in New York, he clearly said

that there wasn’t any.

I would just like the record to show that on September 22, 2003,

Executive Order 41 was signed by the mayor which said that any

information pertaining to illegal immigration or that status is confidential and shall not be shared with Federal immigration or Federal officials. So I just want to make it clear that the testimony,

I am sure the individual meant well and did not realize that he

mis-spoke. But the city of New York is and has been for a long time

a sanctuary city. And I just think that when we talk about exchanging information about lawbreaking, not telling people who

are criminals and who are not, that we should be consistent on

this. So I yield back, Mr. Chairman, to the gentleman.

Mr. BURTON. I just have a couple of questions, Mr. Chairman.

First of all, I want to say to Ms. Brand, the record that you spoke

of just a minute ago is very, very good. And you are to be congratulated. The Justice Department is to be congratulated on the record

that has been compiled in dealing with these criminals and these

people that break the law.

Ms. BRAND. Thank you.

Mr. BURTON. I will preface my questions with that.

I think the only question I would really like to know the answer

to is, you said that you generally agree with the goals of the NICS

legislation to get additional information for the Federal Government to deal with these people. Do you have any idea of the cost

to the States to garner the information on mental health records

and also from the courts, the convictions of people that have been

convicted of felonies or other crimes?

Ms. BRAND. I have never seen a specific dollar amount about how

much it would cost the States to get their systems in a state that

would allow them to provide all the mental health information. I

will see if anyone at the Department has that information. I do

know that the Bureau of Justice Statistics, which is part of the Department of Justice, is in the process of doing a survey to the

148

States to determine which of them don’t provide mental health

records because of resource limitations and which of them don’t

provide mental health records of other reasons. Because there are

a number of States that have State statutes and regulations that

prevent them from providing that information to the Federal Government.

Mr. BURTON. Well, let me just say that the goals may be laudable, but the mandates to the States or the local, the cities

throughout the country without funding from the Federal Government, unfunded mandates are something that the State and local

governments do not want. So if we are going to go down that path

where you need additional information on mental health records or

convictions, then we ought to find out the cost and we ought to

make sure that the States don’t bear that burden.

In Indiana right now, our property taxes are so high already that

people pay are ready to march on the State house. So we want to

make sure we don’t add any more liabilities on the States from the

Federal Government with a mandate that is not going to be funded.

Ms. BRAND. I agree, we would not support an unfunded mandate.

My understanding is that the NICS Improvement Act doesn’t mandate States to provide the information, but it provides money to do

it. The NCHIP program which exists now provides grants every

year to many States around the country to just help, for example,

if they don’t have an automated system at all to collect the records,

it would help them fund the creation of something like that, or it

would help them create the electronic systems to provide information electronically to the NICS. It assists them without requiring

them to provide the information to the Federal Government.

Mr. BURTON. Thank you very much, Mr. Chairman. I don’t have

any other questions.

Mr. KUCINICH. I thank the gentleman.

Ms. Brand, a July 2004 Department of Justice report found that

most federally licensed firearm dealers are inspected infrequently

or not at all. According to the former ATF Director, the agency’s

goal is to inspect each FFL at least once every 3 years to ensure

that they are complying with Federal firearms laws.

However, due in part to resource shortfalls, the ATF is currently

unable to achieve that goal. ATF workload data show that the ATF

conducted 4,581 federally licensed firearm dealer compliance inspections in fiscal year 2002, or about 4.5 percent of the approximately 104,000 federally licensed firearm dealers nationwide. At

that rate, it would take the ATF more than 22 years to inspect all

federally licensed firearm dealers. That is right from the Department of Justice report.

Why is this the case and is it still the case, and how can the ATF

improve on its inspection performance?

Ms. BRAND. If you don’t mind, I would like to refer that question

to Mr. Rubenstein, who is Chief Counsel of ATF.

Mr. KUCINICH. Mr. Rubenstein.

Mr. RUBENSTEIN. Mr. Chairman, thank you for the question.

ATF tries to target its resources to inspect those licensees who

come to our attention. The vast majority of licensees follow the

rules and regulations and it is not necessary that we inspect them

149

very often. We try to target our investigations to licensees who do

come to our attention, either through local law enforcement or

through our own undercover efforts, to ensure that they are in fact

complying with the rules and regulations.

So while we may not be able to inspect all the licensees as often

as we might like, we try very hard to inspect those licensees who

do need to be inspected to ensure that they are complying with

laws and regulations.

Mr. KUCINICH. How do you know who needs to be inspected and

who doesn’t, if you have so few personnel?

Mr. RUBENSTEIN. We get that through targeting our inspections,

each field division has a plan in which it determines whether or

not, who it is going to inspect, by talking with local law enforcement, undercover operations it may be using, random inspections

that it conducts. Over the years, we look at trace data, obviously,

and determine whether or not that might be a reason why we

might look at a licensee.

So we try very hard to target the resources we do have for those

licensees. Our primary goal is to ensure that they are in fact complying with the law. When we go out to inspect a licensee, our goal

is to ensure that they know what the regulations require and that

they are in fact following those regulations.

Mr. KUCINICH. Here is what I am wondering. I am trying to

square what you had to say with the former panel, representative

from New York City, who said that they were able to identify 27

licensed gun dealers, and that they had to sue them to come into

compliance. Did New York City do a better job than the ATF in the

case of their sphere of operation?

Mr. RUBENSTEIN. I am not going to comment on whether New

York City did a better job or not.

Mr. KUCINICH. Were they luckier with enforcement?

Mr. RUBENSTEIN. Again, I am not going to comment. We did look,

they did send us some information about the 27 investigations. In

reviewing that with the U.S. Attorneys, it was determined that

there was not enough evidence to bring criminal actions at the Federal level.

But be that as it may, I think ATF sets its priorities as to who

it should inspect, and I think uses its resources to its fullest capability to ensure that licensees are in fact complying with the Federal firearms laws. I think as the first panel represented and as I

think we all know, the vast majority of licensees are in fact complying with the law.

Mr. KUCINICH. One of the things that you said, you said you

didn’t have enough, there wasn’t enough evidence. It was my understanding that New York City actually had these gun dealers on

tape. Were you aware of that?

Mr. RUBENSTEIN. I was aware that there were some tapes, yes,

sir. I did not review the tapes.

Mr. KUCINICH. In terms of evidence, just for my information,

what standard of evidence does a tape provide? Is it a low standard? Is it a high threshold of evidence?

Mr. RUBENSTEIN. I am not in a position to testify about what was

or was not on the tape, or whether or not it met a standard. All

150

I can tell you was that the U.S. Attorneys who reviewed the tape

determined that it did not meet the standard for prosecution.

Mr. KUCINICH. I would just say that, with all due respect, Mr.

Rubenstein, it was obviously enough evidence that the gun dealers

voluntarily entered into a consent agreement that dramatically

changed the way in which they operated. I am just pointing that

out to you as someone who is the counsel for the Department.

Mr. RUBENSTEIN. I understand, and again, I can’t comment on

that.

Mr. KUCINICH. This isn’t a point of view, this is a point of law.

Mr. RUBENSTEIN. I am just saying, as far as whether or not it

met a Federal standard for prosecution, is perhaps different than

entering into a consent agreement with a private party.

Mr. KUCINICH. Does the DOJ support repeal of the Tiahrt

Amendment?

Ms. BRAND. The answer is no. The President’s budget request

contained language that was similar to the Tiahrt Amendments.

Mr. KUCINICH. Why not?

Ms. BRAND. I am going to defer to Steve on that one.

Mr. RUBENSTEIN. We don’t believe the Tiahrt Amendment impedes law enforcement. Over the last several weeks, and perhaps

months, there have been numerous articles and questions about

the Tiahrt Amendment and what trace data can be released and

what can’t be released. What I want to say is that, firearms trace

data is critically important, that is developed by ATF to assist

State and local law enforcement in investigating and solving violent crimes. ATF traces approximately 280,000 firearms every year

for approximately 17,000 law enforcement agencies around the

country.

We consider that to be law enforcement-sensitive information.

Because it is often the first investigative lead in the case. If I can

briefly explain what occurs, a police department will find a gun at

a crime scene, they will ask ATF to trace it. We will trace that firearm for that local police department.

That may be the last ATF hears about that trace. We will give

that information to that local police department and assist them in

any way possible to help investigate that crime. They at some

point, if they are asked by another law enforcement agency outside

the jurisdiction, are free to disclose that information to any other

law enforcement agency. In fact, there are multi-jurisdictional task

forces in which trace data is disclosed.

The concern for ATF, the historical concern, predating the Tiahrt

Amendment, has been the release of trace information to other

than a law enforcement agency who recovered a firearm. Because

the concern would be, if it is released to third parties, it could help

criminals evade detection, it could interfere with undercover operations, it could interfere with ongoing State investigations that

were being pursued. But ATF’s primary goal, one of its primary

goals under the Gun Control Act, is to assist State and local law

enforcement in their fight against crime. I think the Tiahrt Amendment, we don’t believe, does anything to stop ATF or to impede

ATF in assisting the States in that fight.

Mr. KUCINICH. I thank the gentleman.

Mr. Issa, do you have questions?

151

Mr. ISSA. Just following up on that, can we all agree that the two

biggest challenges we face today is in fact making sure that all persons, whether mentally defective, criminal in their background, illegally in this country, need to be on a 50 State basis, plus the territories, excluded from being able to purchase guns. Is that a fair,

broad statement?

Ms. BRAND. Federal law already prohibits the categories of people you just mentioned.

Mr. ISSA. Right, except in fact, Virginia Tech shows us that we

have not yet successfully implemented those existing laws.

Ms. BRAND. There are significant gaps, there are a significant

number of records that are not in the NICS system, that is true.

Mr. ISSA. The reason for my question, we are an oversight and

reform committee. It is actually very good that we are, because our

job is to say, in many ways, are the existing laws sufficient and is

it an absence of implementation, is it a defect in the law, or is it

in fact, if you will, bureaucracies that are in the way. It appears

as though we do have a State cooperation and information sharing

problem, State and local, that has to be worked on. Some of it will

have to be, consistent with the Constitution, it will have to respect

the States, but encourage the States.

The second and obvious one is, and I think Mr. Bilbray brought

this up earlier, we have a challenge in that we have 12 million

illegals in this country. They represent, in California, nearly half

of all the people who are incarcerated in our prisons and they represent a huge part of the gun crime. So we have a Federal issue

that would appear to be not fully taken care of.

And then last one, and I think, Mr. Rubenstein, you were hitting

on it, we do have a mandate to track weapons from womb to tomb

and in fact to provide law enforcement the ability to get the information necessary in criminal prosecutions. If I heard you right, basically you are saying you are reasonably satisfied that you are

going that direction. I want to make sure I give you a chance to

say whether or not you believe that is as big a problem as the State

and local cooperation and the Federal implementation of persons

who should not be able to purchase, which clearly, this committee,

we didn’t even meet and we knew we had a problem there.

Mr. RUBENSTEIN. If I understand your question correctly, I think

that is correct.

Mr. ISSA. OK, but your satisfaction level is relatively high as to

release of information State and local law enforcement?

Mr. RUBENSTEIN. Yes, sir.

Mr. ISSA. So if, and hopefully we will get unanimity here, if we

were to focus most narrowly to get the most effectiveness from this

committee’s energies and time, both in oversight and potential legislation we might introduce, although it probably wouldn’t come

back to this committee, it would be referred to another committee,

we should work on things which would allow or encourage or bring

about 50 State cooperation and compliance with the individuals,

the groups that I mentioned that are prohibited from gaining firearms?

Ms. BRAND. If I understand what you are saying, yes. It has been

a goal of the Department since NICS was stood up in 1998 to constantly increase the number of records the State put into the sysVerDate 11-MAY-2000 09:25 Jul 18, 2007 Jkt 000000 PO 00000 Frm 00155 Fmt 6633 Sfmt 6633 C:\DOCS\35771.TXT HGOVREF1 PsN: HGOVREF1
152

tem. Now, we can’t constitutionally force them to do that, but we,

it is not as though we just woke up after Virginia Tech and started

encouraging them to do it. We have been encouraging them to do

it for years.

Mr. ISSA. Right. And if you were here, on an earlier panel, I

made the point that this President has clearly made it a priority

for the U.S. Attorneys, this Attorney General and his predecessor

have, for gun crime enforcement, even where it wasn’t necessarily

popular, has made the point that U.S. Attorneys have to do a substantial amount of that.

But circling back again, as you all know, the power of Congress

in interstate commerce and other areas has been used, the highway

implementation, we were able to get States to all go to 55 when

we wanted them to go to 55, we were able to get them to go to 21

for the age of drinking when we wanted to. We have ways of encouraging States to do certain things and to comply. We certainly

have tremendous amounts of dollars that come from the Federal

Government to provide law enforcement tools. And we can reasonably expect that if they don’t want that money, they can choose not

to cooperate. If they do want that money, we can hook, perfectly

constitutionally, that they shall comply with certain aspects of enforcement.

The question is, is that the best use for this committee and if it

is, what recommendations could you make to us for tools to do it

or, more importantly, where we should first put our priority within

that major group of non-compliance with making sure that certain

groups or individuals do not get weapons?

Ms. BRAND. We already have the NCHIP funding program, which

the President funds in his budget request every year. Congress actually has funded the NCHIP program at lower levels than the

President’s budget request for the last several years running, and

for the last 2 fiscal years that program has been funded at only $10

million when the budget request has been around $50 million.

So $10 million is really not that much money to parse out among

all the 50 States to help improve their systems. So we certainly

support improving systems that way.

Now, the NCHIP programs that it has funded has priority areas

to encourage the States and their grant applications to focus on

those areas. One of those areas is improving mental health records

provision to the system. So that is something, that and the criminal records dispositions are two of the areas that the NCHIP program focuses on.

Mr. ISSA. Thank you, Chairman.

Mr. KUCINICH. Thank you. The time has expired.

Mr. Burton.

Mr. BURTON. I have no questions. Thank you.

Mr. KUCINICH. I want to thank this panel for appearing.

This committee will submit questions in writing and we would

appreciate your response so that we can complete our work for this

particular hearing. I want to thank you for your presence here, and

we appreciate it.

We are going to recess for two votes and I think we will probably

be back here in about 25 minutes to a half hour, at which time we

153

would ask the third panel to join us. This committee stands in recess.

[Recess.]

Mr. KUCINICH. Good afternoon. Welcome to the witnesses. The

committee will come to order again.

This is the third panel of the Domestic Policy Subcommittee’s

hearing entitled, ‘‘Lethal Loopholes: Deficiencies in State and Federal Gun Purchase Laws.’’

We heard from panels who represent the legal community

against violence, the Brady Campaign Against Handgun Violence,

Criminal Justice Coordinator for New York City, and Assistant Attorney General of Legal Policy, U.S. Department of Justice, and the

Chief Counsel of the Bureau of Alcohol, Tobacco, Firearms and Explosives.

This third panel consists of witnesses from Johns Hopkins University, University of Pennsylvania and from the National Alliance

on Mental Illness. Susan Sorenson, Professor Sorenson is a professor of social policy and criminology at the University of Pennsylvania and part of the graduate group in public health. Since 1986,

she has taught a graduate course at UCLA at Penn on family and

sexual violence. Professor Sorenson has published widely in the epidemiology and prevention of violence, including homicide, suicide,

sexual assault, child abuse, battering and firearms. She was a

member of the National Academy of Sciences Panel on Research

and Violence Against Women, a consultant to Unicef’s May 2000

report on domestic violence against women and girls, and a member of the advisory panel for the 2001 U.S. Surgeon General’s report on youth violence.

We will also hear from Professor Daniel Webster, who is an associate professor of health policy and management at the Johns Hopkins Bloomberg School of Public Health, where he serves as co-director of the Center for Gun Policy and Research and associate director of research for the Center for the Prevention of Youth Violence. Professor Webster has published numerous articles on firearm policy, youth gun acquisition and carrying, firearm injury prevention, intimate partner violence and adolescent violence prevention. He is currently leading studies that evaluate policies to reduce illegal gun sales, he is leading a community gun violence prevention initiative and an intervention designed to encourage protective measures for victims of domestic violence.

Finally, Mr. Ronald Honberg. Mr. Honberg is the national director for policy and legal affairs at the National Alliance on Mental

Illness [NAMI]. During his 18 years with NAMI he has worked on

issues affecting people with mental illnesses involved with criminal

justice systems, including jail diversion, correctional treatment and

community re-entry, and has drafted amicus curiae briefs on precedent-setting mental health legislation. Before coming to NAMI, Mr.

Honberg worked as a vocational rehabilitation counselor for the

State of Maryland, and in a variety of direct service positions in

the mental illness and developmental disabilities field.

It is the policy of the Committee on Oversight and Government

Reform to swear in our witnesses before they testify. I would ask

that the witnesses please stand, raise your right hands.

[Witnesses sworn.]

154

Mr. KUCINICH. Thank you. Let the record show that the witnesses answered in the affirmative.

As with panel two, I will ask you to give an oral summary of

your testimony and to keep this summary under 5 minutes in duration. Bear in mind, your complete written statement will be included in the hearing record. We will begin with Professor

Sorensen.

STATEMENTS OF SUSAN B. SORENSON, PROFESSOR OF SOCIAL POLICY AND CRIMINOLOGY, UNIVERSITY OF PENNSYLVANIA; DANIEL W. WEBSTER, ASSOCIATE PROFESSOR AND

CO-DIRECTOR OF THE CENTER FOR GUN POLICY AND RESEARCH, JOHNS HOPKINS BLOOMBERG SCHOOL OF PUBLIC

HEALTH; AND RONALD S. HONBERG, PROFESSOR OF SOCIAL

POLICY AND CRIMINOLOGY, DIRECTOR OF POLICY AND

LEGAL AFFAIRS, NATIONAL ALLIANCE ON MENTAL ILLNESS

STATEMENT OF SUSAN B. SORENSON

Ms. SORENSON. Thank you for the invitation to be here today,

and I begin with good news. The number of homicides committed

by an intimate partner has dropped during the past 30 years. Also,

the proportion of intimate partner homicides that were committed

with a gun has dropped in the past 30 years.

However, one bit of information remains disturbingly constant.

That is that women are more than twice as likely to be shot by a

male intimate as they are to be shot, stabbed, strangled, bludgeoned or killed in any other way by a stranger.

When it comes to firearms, much of the discussion tends to focus

on fatalities. But a firearm does not have to be fired to have an

impact. It can be used to intimidate and to coerce an intimate partner to do what the abuser wants. An estimated 4 million U.S.

women have been threatened with a gun by an intimate partner,

and nearly 800,000 have had an intimate partner use a gun

against them.

It would be as if every woman in Washington, DC, Boston, San

Francisco, Chicago, Los Angeles, Miami, Hartford, Columbus, Indianapolis, Salt Lake City, Albany, Rochester, Syracuse, Buffalo, Milwaukee, Richmond and Des Moines had at least once in her life an

intimate partner use or threaten to use a gun against her.

Congress has passed two pieces of legislation that are relevant

here. I will reiterate what we heard earlier today. The 1994 Violent

Crime Control and Enforcement Act expanded the list of persons

who are prohibited from possessing a firearm to include those

against whom a domestic violence restraining order has been

issued. Then in 1996, the Lautenberg Amendment, by which persons convicted of a domestic violence misdemeanor are prohibited

from purchasing or possessing a firearm.

Now, responsibility, as we have heard for how the laws were implemented, was left to the individual States. Some States already

had laws in place and data bases against which purchase applications could be checked. Others have yet, more than a decade later,

to develop such capacity. This is important because each year,

about a million people in the United States obtain a restraining

order against an intimate partner. Persons who come under a doVerDate 11-MAY-2000 09:25 Jul 18, 2007 Jkt 000000 PO 00000 Frm 00158 Fmt 6633 Sfmt 6633 C:\DOCS\35771.TXT HGOVREF1 PsN: HGOVREF1
155

mestic violence restraining order likely are the single largest class

of new prohibited purchasers each year.

Reports by the Bureau of Justice Statistics indicate that about

one out of every seven firearm transfer applications were denied

due to domestic violence. Many more, however, are not denied, because the information about the domestic violence is not available,

it is not made available or it is not easily accessed. The purchase

prohibitions are more easily addressed than possession prohibitions. Although persons under a domestic violence restraining order

are required to relinquish their firearms, very few do.

I offer several recommendations in my written testimony, and I

will just focus on a couple here. First is that States should implement, maintain and monitor the quality of an electronic data base

for all domestic violence restraining orders and misdemeanors, and

the data should be submitted, so they can be part of NICS. Work

at the States is essential so that the intent of the Federal law is

met. Therefore, some sort of incentive might be useful to speed

quality compliance.

We heard earlier from some of the other speakers who are concerned about requiring States to do the work of the Federal Government. I was thinking about that a bit over one of the breaks.

It is not that, I would like to ask the question, compared to what.

Because if the States don’t do this, they are going to be picking up

the costs for the incarceration and the prosecutions when the guns

remain in the hands of those who should not be having the guns.

So it is not a zero sum game, because the costs are still going

to be borne by the States and local municipalities. But the issue

is how those get spent. Personally, I would rather see them spent

in prevention.

Second, a Federal agency should monitor the amount and quality

of the data that is submitted to NICS, and should issue periodic

reports on these findings. There are concerns specific to these

records. I can expand on that. And they merit very close monitoring, until there is more complete compliance.

There will be perhaps some that won’t comply. We know death

certificates, for example, that are submitted to the National Center

for Health Statistics, my understanding is that is a voluntary process that the States participate in. So the Feds have figured out how

to make this work and how to get voluntary compliance. There is

one State, I believe, that still has not complied and doesn’t submit

their death certificate records.

But Federal agencies do know how to monitor the data they get

to have a good sense of whether these are underestimates and to

make sure of the quality of the records that they do receive.

Next we need models and guidelines for firearm relinquishment

and removal. It would be great if we could have allocations to an

appropriate Federal agency so we could convene key stakeholders

from around the country to develop guidelines to ensure compliance

with Federal law.

Last, consideration should be given to whether firearm prohibitions should be extended to related circumstances. I think specifically of former dating partners, as was pointed out already, as not

covered under Federal law, and also to stalking. Stalking is a situation in which you have someone who becomes obsessed with anVerDate 11-MAY-2000 09:25 Jul 18, 2007 Jkt 000000 PO 00000 Frm 00159 Fmt 6633 Sfmt 6633 C:\DOCS\35771.TXT HGOVREF1 PsN: HGOVREF1
156

other, and even though there may not be any relationship, they

perceive a relationship or they want a relationship. When attempts

to make contact are not met or are rebuffed, the person can develop

motivation for wanting to harm the other. And it would be important to make sure that we don’t allow them to have the means.

So in summary, there is useful, relevant legislation already in

place. Some expansion of dating partners and stalking merits consideration. But mostly, however, you have passed laws that need

to be implemented and enforced. And by making a few other

changes, you can help bring your intent into reality.

Thank you.

[The prepared statement of Ms. Sorenson follows:]

157

158

159

160

161

162

Mr. KUCINICH. Thank you very much, Professor Sorensen.

We will next hear from Professor Webster. You may proceed.

STATEMENT OF DANIEL WEBSTER

Mr. WEBSTER. Thank you, Mr. Chairman.

I have submitted my written testimony. I am going to try to just

cover some highlights.

Basically, the general objectives of most gun control laws, Federal, State or local, are actually well-founded in science. Violence

is not a random phenomenon, there are predictors and prior criminal offending problems with mental health are factors that a number of studies have shown to be associated with a risk for violence.

There is frankly little disagreement about the general objectives of

these basic polices. But the reason I guess we are here is, there is

a huge disconnect between the objectives of the policies and whether the current laws are inadequate or are being enforced adequately.

I would like to focus first on whether our criminal history restrictions are really adequate to address the objective, again, of trying

to keep guns from dangerous people. Professor Sorensen mentioned

the exclusions that were put into place in the 1990’s for domestic

violence offenders. Aside from that prohibition, we prohibit felons.

But the question is, is that really the appropriate bar we want

to set for someone, as long as you have been able to avoid getting

a felony conviction or conviction for domestic violence, then you can

have as many guns as you would like?

There is precious little research, I am very sorry to say, to tell

us enough about the adequacy of these current standards. There is,

however, one study that looked at homicide offenders in the State

of Illinois. What that study found was that, while the offenders

typically had very long criminal histories, 57 percent of those did

not have a felony conviction. So we are clearly missing a lot of

criminal offenders by setting the bar at felony.

There has been research done in California that showed that individuals with misdemeanor convictions have elevated risk for future violence. Those who are going to purchase firearms and have

prior misdemeanor convictions are seven times more likely to commit future crimes of violence and firearms-related crimes than are

individuals who don’t have those kinds of convictions.

California changed its policies in the early 1990’s to deny violent

misdemeanors firearms and what further research showed is that

those who were denied were significantly less likely to re-offend

than were individuals with similar arrest histories prior to them

adding the new misdemeanor restrictions. So I think that is an important area to really fully achieve our objective of keeping guns

from criminals and dangerous individuals.

Another category of criminal offense that is not adequately addressed in Federal law and in 23 States is offenses committed

while the offenders were juveniles. If those same offenses had been

committed by an adult, they would have been prohibited from

being able to purchase a firearm when they are of age. Criminal

offending as a juvenile, particularly if that offending is serious or

chronic, is very strongly related to adult offending. So that is another area in which, to achieve our objectives of keeping guns from

163

dangerous people, we could expand those kinds of exclusion criteria.

I want to sort of, I see that my time is about over, but I want

to mention that with respect to the Tiahrt Amendment, many good

points were made on the effects that has on local law enforcement.

I want to say, as a researcher, it also impedes the kind of work

that I have done to inform gun violence prevention efforts.

And a study that we published last year showed that prior, when

the data were more available, did not have the Tiahrt restrictions,

and it was discovered that a gun dealer just outside of Milwaukee

was a leading seller of crime guns, when that was made public,

that dealer voluntarily changed his sales practices, and our research showed that the rate at which his guns went into the criminal commerce reduced by more than 70 percent. We got more recent data through the assistance of the Milwaukee police department and found that post-Tiahrt, when the data were not readily

available and basically gun dealers could do what they want, the

problem went exactly back to where it was before the gun dealer

was revealed as having problems with his sales practices.

So I think that aside from simply helping address a very specific

criminal case, there is also the issue of having data available to researchers and the public, so people will be more accountable.

[The prepared statement of Mr. Webster follows:]

164

165

166

167

168

169

Mr. KUCINICH. Thank you, Professor Webster.

I will now hear from Mr. Honberg. You may proceed.

STATEMENT OF RONALD S. HONBERG

Mr. HONBERG. Thank you, Chairman Kucinich. I am very pleased

to be here today on behalf of NAMI, which is a grassroots advocacy

organization comprised of people with serious mental illness and

their families.

I would like to say at the outset that NAMI very much supports

efforts to prevent violent or potentially violent individuals from

possessing firearms. We thank you for the opportunity to help

guide the committee’s inquiry toward that end.

In the wake of the Virginia Tech tragedy, many questions have

been raised about how someone like Mr. Cho could have been allowed to purchase handguns. The real lessons of the tragedy, however, lie in the failed mental health system. Although we realize

this hearing’s focus is on our gun laws, it is equally important to

recognize that timely and appropriate treatment might well have

prevented that tragedy.

With respect to the gun laws, I would like to make three basic

points. First, there has been a suggestion today that the regulations guiding reporting of mental health information are clear. We

don’t think that the guidelines in the Brady regulations are sufficiently clear and that may be part of the problem. For example, the

term that is used to describe mental illness is ‘‘Adjudicated as a

mental defective.’’

That term needs to be changed. It is both stigmatizing and incompatible with modern terminology used in the diagnosis and

treatment of people with mental illness. It also creates significant

uncertainty over who is and who is not covered under the law. The

regulations implementing the Brady law attempt to define this

term, but for reasons enumerated in detail in my written testimony, this definition is still very unclear.

No State official charged with carrying out the requirements of

the Brady bill could possibly know what this means, as it is a term

that has been obsolete for close to 40 years. And just as we

wouldn’t use the term idiot or imbecile in Federal law, so too

should we not use the term ‘‘adjudicated as a mental defective.’’

Second, as I stated at the outset, we support efforts to prevent

violent or potentially violent individuals from possessing firearms.

However, mental illness should not be a proxy for violence. Current

research, including the findings of the landmark Surgeon General’s

report on mental health in 1999, strongly demonstrate that the

overwhelming majority of people with mental illness are not violent. Research does show that a small subset of people with mental

illness may pose higher risks of violence, and predictors include a

past history of violence, non-participation in treatment, and co-occurring abuse of illegal drugs or alcohol.

The NICS reporting system needs to be based on these kinds of

clear risk factors. One model to consider for reporting is that under

California law, which is categories that directly link to violence or

potential violence. It is also important to keep in mind that other

categories included in the NICS data base are more directly linked

with violence. For example, as you have heard, court orders that

170

restrain individuals from harassing, stalking or threatening an intimate partner or child of an intimate partner, and misdemeanor

convictions for domestic violence are included. These categories are

probably more directly relevant to potential violence than mental

illness per se.

So we believe that efforts must be made at the Federal level incorporating expertise from the National Institute of Mental Health

and the Substance Abuse and Mental Health Services Administration to develop clear reporting criteria and mechanisms that are

linked to violence, not solely to mental health treatment.

Finally, NAMI believes that standards must be developed in Federal law to protect the privacy of information provided to the NICS

system. We are very concerned that concerns about the inappropriate disclosure of sensitive information about mental health treatment may be a significant impediment for people with mental illness to seek help when they need it. Representative McCarthy has

included a provision in H.R. 297, the NICS Improvement Act,

which we have heard referenced a number of times today, requiring

the publication of regulations by the Attorney General for protecting the privacy of information provided to the system. This would

indeed be a positive step.

But we believe these regulations must specify that only names

and addresses should be included in the NICS system—I heard

today that is in fact the case, that is not very well known to the

public—with no further information about why a person is on the

list. The law should also prohibit sharing the list with any Federal

or State agency or individual for any other purpose, and privacy

protections should apply to all agencies and individuals responsible

for collecting and providing information for the NICS system.

In conclusion, as I have said, we support efforts to prevent violent individuals from possessing firearms. In accomplishing this

laudable goal, it is very important to establish criteria that achieve

this objective without inadvertently subjecting people with mental

illness to further stigma and prejudice, which can deter people

from seeking treatment when they need it the most.

Therefore, NAMI recommends a regulatory process that incorporates current scientific knowledge and brings clarity to this very,

very complex issue. Thank you again.

[The prepared statement of Mr. Honberg follows:]

171

172

173

174

175

176

177

178

Mr. KUCINICH. Thank you, Mr. Honberg.

Professor Sorenson, one of your recommendations is extending

the purchase prohibitions to those who stalk former dating partners. Could you explain why the prohibition should be expanded to

include those individuals?

Ms. SORENSEN. I believe it should be expanded to both former

dating partners and stalking, regardless of the relationship, whether there was a prior relationship or not. People who are in the public eye are sometimes stalked by others and that kind of obsessive

quality of wanting to have a relationship with someone is, and then

to not have that be met, can be very disappointing. Then the person can sometimes become violent.

So I don’t think that there should be, the firearms provision,

there should be discussions about whether it should be extended to

all cases in which stalking has been, and there is a restraining

order in place, where a judge or commissioner has already decided

that this person constitutes a credible threat to this other person,

so that it goes through the regular due process. But I think it

should be extended there.

Also, I believe it is former boyfriends and girlfriends, or maybe

it is boyfriends and girlfriends in general, are those who are at

highest risk of intimate partner homicide. So it seems like we

would want to include that group in this protection under Federal

law about domestic violence restraining orders.

Mr. KUCINICH. Do you see any wisdom in allowing States to

adopt more stringent laws to see what works and how to balance

rights, or do you think that we know enough now to establish uniformity at a Federal level for the expanded categories that you

have discussed?

Ms. SORENSEN. Several States have already had these in place.

California has had these in place for quite some time. This information is entered into the system that California uses to check for

background checks and for purchases. So there is evidence that it

is already working, or at least it can be implemented, is a better

way to put it.

Mr. KUCINICH. Tell me more about who you work for in terms of

the statistics that you gather and the policy recommendations that

you make.

Ms. SORENSEN. This has been a content area for me, for my research, for a number of years. I also had the privilege of serving

on an attorney general, this is for the State of California, former

Attorney General Bill Lockyer, his policy committee, it was a task

force. One of the things that we looked into was whether firearms

prohibitions were being enacted appropriately and were being enforced correctly. We were surprised to find that there were a number of counties that were, as we put it, under-reporting. We would

have expected far more restraining orders from them than we were

getting. Sometimes it was because they weren’t entering them,

sometimes because the judges had crossed their prohibitions off on

restraining orders. And sometimes because they lacked personnel

to do it.

And when it was brought to the attention, from the State Attorney General, to the local DAs and such, and the local police officers, and the persons who were responsible for that, they changed

179

practices. So simply letting them know that, we are paying attention and we are going to be monitoring this, brought them quickly

into compliance on some things.

I think federally, if we know that is going to happen and that

is happening at a Federal level, that would be great. We have

fewer than 1 million restraining order records in NICS right now.

There should be lots more than that.

Mr. KUCINICH. Thank you very much.

Professor Webster, the ways that the laws are designed now, the

prohibited categories at the Federal level and at the State level are

mostly permanent. You do mention the case that some States restore firearm privileges at age 30 if juvenile offenders have disqualifying adult violations.

Should this happen for other categories?

Mr. WEBSTER. I am not sure if I get the question. So the question

is whether some prohibitions might be time limited? OK. I think

if it is a matter of not having, if that is the only way you can get

the restrictions, I think it makes a lot of sense. We do know a fair

amount about developmental trajectories for criminal offending.

Typically, if there is no offending during the adult years, it is pretty darned rare that they are going to be a problem later.

Mr. KUCINICH. So for example, if a person is convicted of a felony

or domestic violence misdemeanor as a young man or woman,

would they be a demonstrated risk purchasing a handgun in their

50’s when their record is otherwise immaculate?

Mr. WEBSTER. It would be an unusual set of circumstances. I am

not saying there is no risk.

Mr. KUCINICH. Is there any social science there at all?

Mr. WEBSTER. I don’t know of a very specific study that examines

exactly that. I will just say it would be an unusual set of circumstances.

Mr. KUCINICH. I have a question for both you and Mr. Honberg.

Are there any good studies that show what classes of mentally ill

people are likely to commit a crime, or specifically, whether the

Federal definitions of mentally defective and committed to a mental institution are based on sound social science? Professor Webster.

Mr. WEBSTER. I have not been able to find a study that would

define the mental health problems in the way that the Federal law

does. I think Mr. Honberg was right on in saying that sort of the

definitions and how we define that doesn’t line up with how scientists and clinicians tend to do that kind of thing.

So there is really nothing to go on to say for sure whether those

set of criteria really are logical. I do agree with what he was saying

earlier, that there are certainly a number of very seriously mentally ill people who might be technically disqualified but who probably really are not a threat. On the other hand, there are certainly

a number of individuals when mental health conditions that research shows does elevate risk.

Mr. KUCINICH. Mr. Honberg.

Mr. HONBERG. There certainly have not been any studies that I

have seen that have looked specifically at the relationship between

mental illness and the likelihood of committing a violent act with

a gun. But there have been studies that have looked at mental illVerDate 11-MAY-2000 09:25 Jul 18, 2007 Jkt 000000 PO 00000 Frm 00183 Fmt 6633 Sfmt 6633 C:\DOCS\35771.TXT HGOVREF1 PsN: HGOVREF1
180

ness and violence, a number of them, some recently published. As

I said, the risk factors that have been identified, with the caveat

that the overwhelming majority of people are not violent, if the person is not receiving treatment, if the person has engaged in violence in the past and if the person is engaging in what is known

as the co-occurring use of alcohol or substance abuse.

I will say that a lot of the categories that are in the Federal law

seem to have a fairly tenuous link with violence. Involuntarily committed may be legitimate if the basis of the commitment is on the

basis of being dangerous to self or others. But we know that there

are many people who are involuntarily committed who are committed for other reasons that have nothing to do with violence.

We also know that included in the Federal definition potentially

are people who may have been found at one time or another to be

incompetent, to manage, for example, their money for a temporary

period of time, were assigned a guardian but after a period of time

regained their competence. We also know that recovery from mental illness is very possible these days and that people can go from

a time when they may not have been doing well to 20 or 25 years

of independence and productivity. So the idea of having a

durational limit or some criteria in law makes sense to us. Interestingly, California, which actually has a definition which in some

respects is broader than the Federal definition, but also has

durational limits, in one category 5 years, in another category

when the person regains their competence. It also has procedures

in place that would enable people to petition to have their name

taken off the list. It makes sense to us.

Mr. KUCINICH. Obviously, everyone who may have at one time or

another suffered from mental illness is not necessarily violent. Do

you have any comments based on your study or analysis of the individuals involved in the tragedy at Blacksburg?

Mr. HONBERG. I don’t think we know enough yet about Mr. Cho

to know what his diagnosis was. What we do know is that there

were some, based on the media stories that have come out, that

there were some telltale signs. He was actually held on an involuntary basis on a 72 hour hold in a hospital. He was released on

strict conditions that he participate in outpatient treatment. He

was actually committed on an outpatient basis to outpatient treatment. There was clear language in that commitment order that

said he was potentially dangerous to self or others.

Then 2 years passed before the tragedy occurred. And the last

thing I want to do is play Monday morning quarterback here. But

this was somebody where there was clear notice that he was potentially at risk. What happened, as happens time and time again, is

that the mental health system didn’t do its job, didn’t provide him

with the services that he needed. There was no coordination between the court and the mental health system. So he basically

went without treatment for 2 years, and his symptoms, it appears,

only got worse.

So in a situation like that, where there was actually a finding of

potential dangerousness, we would have no problem with a person

under that circumstance going on the list, at least for a period of

time, until the dangerousness is abated.

181

Mr. KUCINICH. Anyone else on the panel want to comment on

that one?

I would like to ask Professor Webster, you wrote that there is little evidence that policies prohibiting the seriously mental ill from

possessing firearms play a role in determining whether individuals

seek care for their mental illness. You cite a 2001 study. Can you

explain this study?

Mr. WEBSTER. Yes. It was a study that was a survey and asked

individuals the reasons, individuals with mental health problems.

They asked simply what are the reasons that you did not seek care.

The study did not reveal any responses that indicated that they did

not seek care because they were concerned about being on a list

that would prohibit them from purchasing firearms. Only——

Mr. KUCINICH. Did you say they were or weren’t?

Mr. WEBSTER. They were not. There were no responses reported

in that study that had anything to do with that. The only thing

that was even remotely close to that was that 14 percent said that

they did not seek treatment due to issues of stigma around that.

The degree to which we conflate criminality with mental health,

that of course creates the stigma. But that is a few, that is a little

bit removed.

So I think that the general objective of keeping firearms from,

basically I am in agreement with Mr. Honberg that there is a set

of individuals with mental illness that at least temporarily are

going to be potentially dangerous. By restricting access to firearms,

it should not be a barrier, will not be a barrier to them getting

care.

Mr. KUCINICH. Do you have a comment, Mr. Honberg?

Mr. HONBERG. Yes. Again, I think we are in agreement, certainly

on the point that we need to try to identify the people who are at

risk and make sure that they don’t get firearms. But I do want to

emphasize just how pervasive the stigma that people with mental

illness face and how even the perception that your name may go

on a list, people worry about the time about sensitive information,

about their mental health records being disclosed and adverse consequences as a result.

I will just give you an example that I think you I am sure have

heard before, that a lot of people, when they need mental health

treatment, if they are fortunate enough to have private insurance,

oftentimes choose to not seek reimbursement through their private

insurance, for fear that somehow the information that they received that treatment will be disclosed and that there will be adverse consequences in terms of losing their jobs or impacting in

their social relationships.

So my point is that we have to be very, very careful about this.

We certainly can’t be careful enough in terms of the privacy protections that we put in place for people.

Mr. KUCINICH. That raised a question. One of the early panelists

today in testimony stated the following: ‘‘FBI data indicate that a

small fraction of the number of Americans who have been involuntarily committed in mental institutions has been reported to the

NICS. As of November 30, 1999, the FBI had received from all

States a total of only 41 records of mentally ill persons. Although

the number of mental health records provided to NICS has inVerDate 11-MAY-2000 09:25 Jul 18, 2007 Jkt 000000 PO 00000 Frm 00185 Fmt 6633 Sfmt 6633 C:\DOCS\35771.TXT HGOVREF1 PsN: HGOVREF1
182

creased, in 2003 there were more than 143,000, mental illness remain significantly under-reported. As a result of the FBI’s lack of

information about mentally ill persons, it cannot be assured that

an FBI background check will find that a person is ineligible to

possess a firearm due to mental illness.’’

So there is that kind of a quandary. The question that you raise

about just the reporting, so if someone is involuntarily committed,

let’s say they have a nervous breakdown because of the loss of a

loved one. Is this the kind of concern that you are——

Mr. HONBERG. I would say, just addressing broadly the question

of why so many names aren’t being reported, I think there are two

reasons for that. I think in the process of giving you those reason

I will get at your question.

First, I have to make a point that a lot of States don’t do a very

good job of keeping data. We did a report last year, we did a national report card on States. We found that a number of States

couldn’t even provide you with an unduplicated count of people

that they served in their mental health system in a given year. So

that clearly, the technology has to be improved.

But I also get back to the point I made in my testimony, which

is that the definition is really vague and unclear. I don’t think that

States really understand who they are supposed to report and who

they are not supposed to report. That is why I think it is very important to revisit the definition at this point.

What Representative McCarthy is trying to accomplish in her

legislation is very important, and we support her goals. But there

is an aversion, perhaps for understandable reasons, based on what

I heard earlier today, to reopen the Brady law and to reopen the

regulations. But I really think that when it comes to the definition

of who with mental illness should be reported and who shouldn’t,

it is important to do that. That is really what we are pushing for

as an organization.

Mr. KUCINICH. Thank you very much.

One of the things I want to comment on, in this discussion about

the gun violence and the reporting of statistics, and of course, your

presence here is to talk about the role of mental illness as one of

the reporting categories, one of the things that occurs to me is the

fact that we are still struggling with the issue of mental health

parity in this country, and making sure that those who are mentally ill have access to the health care services that they need on

an equal basis with people with other types of illnesses.

John Conyers and I have produced a bill, H.R. 676, the Universal

Single Pair Not-for-Profit Health Care Bill, that among other areas

provides for fully covered mental health. That would be one way in

which we would have a chance to look at those issues in much

more detail and provide the kind of care that people obviously

need.

With respect to Professor Sorensen and to Professor Webster,

your familiarity with various types of violence and their relationship to crimes of violence using implements like guns, you may be

familiar with another proposal, H.R. 808, to create a Cabinet-level

department of peace and non-violence, which looks specifically at

the issues that both of you have talked about, domestic violence,

spousal abuse, child abuse, violence in schools, gang violence, gun

183

violence related to that, racial violence, violence against gays, police community conflicts. It creates an organized approach to dealing with it based on really reaching out to professionals such as

yourself to get that expertise and get it into solid programs that

work with existing groups or work with the educational system to

teach non-violence and non-violent conflict resolution at an early

age.

So as I am listening to your testimony, I am thinking about how

a new model essentially could be constructed to look at the problems that were presented today, which are basically quantitative,

in effect, trying to get the data to try to determine where do we

go from here. Even as we do that, it is still possible to look at creating other models that change the gross numbers that we see reflected in these tragedies.

So I want to give each of you a chance for a closing statement,

if you would like. Professor Webster.

Mr. WEBSTER. I would just close in saying that it is my sincere

hope that Congress will act to make some of the reforms that were

discussed today that really can achieve the objectives that truly the

vast majority of Americans agree upon. When I say that, I mean

gun owners. Virtually all kinds of common sense regulations that

have been discussed in this hearing today gun owners support.

There may be extremist organizations that don’t. But when you do

polling, gun owners agree with it.

So I hope that we can start to make progress on this. It is one

of the largest public health problems that we face. The Federal

Government needs to step up to the plate.

Mr. KUCINICH. Professor Sorensen.

Ms. SORENSEN. Professor Webster said it well. The piece that I

would add is that there have been a number of organizations,

groups of former battered women and those who advocate on behalf

of them who have worked hard to get those laws in place. It is really important, I think, that we make sure they are implemented and

enforced so that we can ensure safety and greater health.

Mr. KUCINICH. Thank you.

Mr. Honberg.

Mr. HONBERG. I just want to express my gratitude for your focus

on broader issues around health care and access to quality health

care. I really think that is at the crux of this tragedy. Without in

any way trying to trivialize the importance of the gun issue, it has

been frankly a little frustrating to me the last couple of weeks that

there has been so much focus on the gun issue with respect to Mr.

Cho and very few questions asked about, well, how could somebody

like this have not gotten treatment.

The answer is, because in many parts of the country, there is no

mental health system in place. Where there is a system, it is crisis

oriented. So you only get services when you are in crisis and only

for so long as you are in crisis.

It would be akin to having a system for treatment of heart disease where you would only get treatment if you had a heart attack,

and then as soon as the immediate life-threatening event were

averted, you wouldn’t get any more treatment. So it is no wonder

why so many people fall through the cracks. You have certainly

184

been, over the years, a great champion for trying to fix our health

care ills in this country and we really appreciate it.

Mr. KUCINICH. I thank the gentleman, and thank all the witnesses. Certainly the discussion that you have started today has

the potential to be the basis of other hearings by this subcommittee. So the staff will certainly be in touch with you. I am grateful

for the professional commitment that each of you have shown to

these issues.

This has been a hearing of the Domestic Policy Subcommittee of

the Oversight and Government Reform Committee. The hearing

today has been about Lethal Loopholes: Deficiencies in State and

Federal Gun Purchase Laws. I am Congressman Dennis Kucinich

of Ohio and the chairman of this subcommittee. I want to thank

all the witnesses for your participation, and this committee stands

adjourned.

[Whereupon, at 6:43 p.m., the subcommittee was adjourned.]

[The prepared statement of Hon. Elijah E. Cummings follows:]

185

186

187

188

Æ