Gun Control: Analyzing Available Data Could Help Improve Background Checks Involving Domestic Violence Records
Released: 2016-07-05T00:00:00


Highlights: section_title: Why GAO Did This Study
paragraphs: The FBI and designated state and local criminal justice agencies use the FBI's NICS to conduct background checks on individuals seeking to obtain firearms. Persons prohibited by federal law from possessing firearms include individuals who have domestic violence records that meet federal disqualifying criteria. Under federal law, firearm dealers may transfer a firearm to an individual if the FBI has not made a proceed or denial determination within 3 business days.

GAO was asked to review NICS checks involving domestic violence records. This report (1) describes the extent to which states identify domestic violence records that prohibit an individual from obtaining a firearm and (2) evaluates the extent to which NICS checks involving domestic violence records are completed before firearm transfers take place and any related challenges in completing these checks.

GAO reviewed laws and regulations; analyzed FBI data from 2006 through 2015 on domestic violence records that states submitted to the FBI, FBI total checks and denial determinations, and DOJ firearm retrieval actions; and interviewed officials from DOJ and eight states (chosen based on number of domestic violence records submitted to NICS and other factors). State interview results are not generalizable but provide insights on state practices.

section_title: What GAO Found
paragraphs: Most of the 50 states submit domestic violence records—misdemeanor crime of domestic violence (MCDV) convictions and domestic violence protection orders—to the Department of Justice's (DOJ) Federal Bureau of Investigation (FBI) for use during National Instant Criminal Background Check System (NICS) checks, but states vary in their efforts to identify (“flag”) such records that prohibit an individual from obtaining a firearm under federal law. For example, in 2015, 22 states voluntarily participated in a program to identify criminal history records that prohibit individuals from obtaining firearms, which can include domestic violence records. FBI data also show that 47 states identified domestic violence protection orders that prohibit firearm purchases. Since not all domestic violence records that states submit to the FBI meet federal prohibiting criteria, flagging prohibiting records can help expedite NICS checks. The total number of prohibiting domestic violence records that states submit to the FBI is generally unknown because states are not required to flag prohibiting records and there is no automated process to disaggregate such records from other records checked by NICS.

For fiscal years 2006 to 2015, FBI data show that most NICS checks involving domestic violence records that resulted in denials were completed before firearm transfers took place (see table). However, about 6,700 firearms were transferred to individuals with prohibiting domestic violence records, which resulted in the FBI referring these cases to DOJ's Bureau of Alcohol, Tobacco, Firearms and Explosives for firearm retrieval. Under federal law, firearm dealers may (but are not required to) transfer a firearm to an individual if the dealer has not received a response (proceed or denial) from the FBI after 3 business days.

FBI data also show that during fiscal year 2015, the FBI completed 90 percent of denials that involved MCDV convictions within 7 business days, which was longer than for any other prohibiting category (e.g., felony convictions). The FBI completed 90 percent of denials that involved domestic violence protection orders in fewer than 3 business days. According to federal and selected state officials GAO contacted, the information needed to determine whether domestic violence records—and in particular MCDV convictions—meet the criteria to prohibit a firearm transfer is not always readily available in NICS databases and can require additional outreach to state agencies to obtain information. DOJ has taken steps to help states make prohibiting information more readily available to NICS—such as through training and grant programs—but does not monitor the timeliness of checks that result in denials by prohibiting category. Ongoing monitoring could help the FBI determine if specific prohibiting categories present greater challenges in making determinations than other categories and, in turn, the FBI could provide the results to other DOJ entities to help them establish priorities, such as for grants, state outreach, or training.

section_title: What GAO Recommends
paragraphs: GAO recommends that FBI monitor the timeliness of NICS checks to assist DOJ entities in establishing priorities for improving the timeliness of checks. FBI agreed with the recommendation.

section_title: Letter
paragraphs: Persons prohibited by federal law from possessing firearms include  individuals who have been convicted of a misdemeanor crime of domestic  violence (MCDV) and individuals who are subject to a qualifying domestic  violence restraining or protection order—(hereafter referred to as  domestic violence records)—among others, such as convicted felons and  fugitives. Under the Brady Handgun Violence Prevention Act and  implementing regulations, the Federal Bureau of Investigation (FBI),  within the U.S. Department of Justice (DOJ), and designated state and  local criminal justice agencies use the FBI’s National Instant Criminal  Background Check System (NICS) to conduct background checks on  individuals seeking to purchase firearms from federally licensed firearm  dealers or obtain permits to possess, acquire, or carry firearms.

During the NICS check, descriptive data provided by an individual—such  as name and date of birth—are used to search databases containing  criminal history and other relevant records to determine whether or not  the person is disqualified by law from possessing firearms. If the FBI or  state agency cannot complete a background check within 3 business  days and make a final determination (i.e., proceed or denied) the gun  dealer may transfer the firearm pursuant to federal law (unless state law  provides otherwise). However, the FBI can continue to research the  transaction for potentially prohibiting information—for up to 90 days—at  which time information related to the transaction is to be destroyed to  comply with federal record retention requirements. When the FBI makes  a denial determination after 3 business days—called a delayed denial— the FBI determines if the firearm dealer transferred the firearm to the  individual and, if so, refers these cases to DOJ’s Bureau of Alcohol,  Tobacco, Firearms and Explosives (ATF) for possible retrieval of the  firearm.

Most criminal history records and protection orders originate from states,  which are not required to share records with the FBI but do so voluntarily  for public safety and other law enforcement purposes. In previous reports,  we noted that states had made progress in automating criminal history  records and making them nationally available for NICS checks and other  law enforcement purposes, but that additional actions could be taken to  enhance the number and completeness of records. Additionally, DOJ  has established grant programs intended to help states improve the  availability and completeness of records to NICS. In this context, you  requested that we review states’ efforts to identify prohibiting domestic  violence records and challenges the FBI and states could face in  conducting NICS checks involving those records. This report describes the extent to which states identify domestic violence  records for use during NICS checks that prohibit an individual from  obtaining a firearm, and evaluates the extent to which NICS checks involving domestic  violence records are completed before firearm transfers take place,  and what challenges, if any, the FBI and selected states face in  completing such checks that DOJ could help mitigate.

To describe the extent to which states identify prohibiting domestic  violence records for use during NICS checks, we analyzed FBI data on  the number of domestic violence records that states identified and made  available to NICS from 2006 through 2015—the most recent 10 years of  available data. To assess the reliability of these data, we questioned  knowledgeable officials about their information collection procedures and  systems, reviewed relevant documentation, and examined data for  obvious errors. We determined that the data we reported were sufficiently  reliable for the purposes of our report. In addition, we interviewed officials  from eight states (Connecticut, Nebraska, Nevada, New Mexico, New  York, Pennsylvania, Texas, and Washington) to gain an understanding of  their processes for submitting domestic violence records to the FBI and  the extent to which they have encountered challenges, if any, in  submitting records. We selected this non-generalizable sample of states  to reflect a range of factors, including the number of domestic violence  records they made available to the FBI and whether they have received  grant funding to improve their record submissions. We interviewed  officials from various DOJ components with responsibility for maintaining  NICS records or supporting related activities, including the FBI’s Criminal  Justice Information Services (CJIS) Division and NICS Section, the  Bureau of Justice Statistics (BJS), and the ATF to obtain additional  perspectives on the records states provide for use during NICS checks.  Additionally, we interviewed entities that support DOJ efforts to address  issues related to firearm background checks, including SEARCH—the  National Consortium for Justice Information and Statistics—and the  National Center for State Courts (NCSC).

To determine the extent to which NICS checks involving domestic  violence records are completed before firearm transfers take place, we  analyzed DOJ documentation and data to identify trends in the total  number of NICS checks, denials, delayed denials, firearm retrievals, and  days to determine the outcome of a check. Specifically, we obtained FBI  data on each NICS check denial—798,401 records from fiscal years 2006  through 2015—and analyzed these data to identify trends in NICS check  denials. We did not analyze data on NICS checks that are allowed to  proceed because the FBI is required to purge all identifying information  related to the NICS transaction within 24 hours of the transaction being  completed. We also obtained data over the same time period from ATF  and the FBI on retrieval referrals and appeals by individuals denied a  firearm and analyzed these data to identify trends in NICS checks  appeals, by prohibited category. To assess the reliability of these data,  we questioned knowledgeable officials about their information collection  procedures and systems, reviewed relevant documentation, and  examined data for obvious errors. We determined that the data were  sufficiently reliable for the purposes of our report. To determine whether  challenges exist that may increase the time it takes to complete a NICS  check, we analyzed testimonial evidence from DOJ and the eight selected  states regarding characteristics of domestic violence records that can  present challenges and lead to checks exceeding the federally-allowed 3  business days before a firearm can be transferred. We also obtained  documentation and testimony from DOJ and selected states regarding  federal and state efforts to increase the number of checks completed  before firearms are transferred, including grant awards and training to  states. Finally, we compared DOJ’s actions to monitor the outcomes of  the checks and use the results to establish and manage program  priorities against criteria outlined in federal internal control standards.  Appendix I contains a more detailed discussion of our scope and  methodology.

We conducted this performance audit from June 2015 to July 2016 in  accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.
subsections: section_title: Background
subsections: section_title: Overview of NICS Process
paragraphs: NICS is used by federally licensed firearm dealers to initiate a  background check on individuals seeking to possess or receive a firearm.  The permanent provisions of the Brady Handgun Violence Prevention Act  (Brady Act) took effect on November 30, 1998. Under the Brady Act,  before a firearm dealer can transfer a firearm to an unlicensed individual,  the dealer must initiate a background check through NICS to determine  whether the prospective firearm transfer would violate federal or state  law. Under federal law, generally there are 10 categories of individuals  who are prohibited from receiving or possessing a firearm, including  individuals convicted of a MCDV and those subject to a qualifying  domestic violence protection order. States can also establish their own  prohibitions in addition to the federal prohibitions. During a NICS check,  descriptive data provided by an individual, such as name and date of  birth, are used to search three national databases—managed by the  FBI—containing criminal history and other relevant records to determine  whether or not the person is disqualified by law from receiving or  possessing firearms. The majority of the records found in these three  databases come from states and territories, though federal and  international criminal justice agencies also contribute some records.

Interstate Identification Index (III): The III is a system for the interstate  exchange of criminal history records. III records include information on  persons who are indicted for, or have been convicted of, a crime  punishable by imprisonment for a term exceeding 1 year or have been  convicted of a misdemeanor crime of domestic violence.

National Crime Information Center (NCIC): NCIC is an automated  database of criminal justice-related records consisting of 21 files (7  property files and 14 person files), accessible to law enforcement and  criminal justice agencies. The files pertain to, among other things,  information on wanted persons (fugitives), persons subject to  protection orders, and stolen property.

NICS Index: The NICS Index is a database that was created for use in  connection with NICS background checks and contains information on  persons determined to be prohibited from possessing or receiving a  firearm.

In general, states make MCDV records available to the III and protection  orders to the NCIC Protection Order file. To facilitate determining if a  MCDV record or protection order would prohibit an individual from  receiving or possessing a firearm, state and local criminal justice  agencies can identify (“flag”) prohibiting records from among all the other  records that they provide to the III and NCIC. The flagged criminal history  records and protection orders, as well as records submitted to the NICS  Index, have been pre-validated by the submitting agency as prohibiting an  individual from receiving or possessing a firearm, thereby expediting the  NICS check process. For criminal records in the III, agencies can use the  Identification for Firearms Sales (IFFS) flag to indicate a prohibiting  record for both persons who have been convicted in any court of a crime  punishable by imprisonment for a term exceeding 1 year or a  misdemeanor crime of domestic violence. For records in the NCIC,  agencies can flag a prohibiting protection order with the “Brady Indicator,”  which flags orders related to domestic violence that prohibit the individual  from receiving or possessing firearms under federal law.

According to the FBI, approximately 23.1 million background checks were  run through NICS during 2015, of which the FBI’s NICS Section  processed about 9 million transactions and designated state and local  criminal justice agencies processed about 14.1 million. The FBI has a  goal of completing 90 percent of all NICS checks immediately, and  completes the vast majority of checks before firearms are transferred.  FBI officials noted that the NICS Section has achieved this goal every  year since 2003, and had a 90.4 percent immediate determination rate in  2015. States may choose among three options for performing NICS  checks: (1) the state can conduct all of its own background checks,  referred to as point of contact (POC) states; (2) the state and FBI’s NICS  Section can share responsibility for background checks, referred to as  partial-POC states; or (3) the NICS Section can conduct all background  checks for a state. Figure 1 shows the general NICS check process for  gun purchases through a firearm dealer.

The Gun Control Act of 1968, as amended, and ATF regulations  establish the types of MCDV convictions and domestic violence protection  orders that prohibit a person from possessing a firearm under federal law.  Specifically, federal law prohibits individuals who are subject to qualifying  MCDV convictions or active domestic violence protection orders from  possessing or receiving a firearm. As defined by ATF regulations, a  qualifying MCDV is generally an offense that is a misdemeanor offense  under federal, state, or local law,  includes the use or attempted use of physical force or the threatened  use of a deadly weapon, and  involves an intimate partner relationship between the defendant and  the victim, among other things.

As defined in ATF regulations, a qualifying protection order generally  must include  issuance after a hearing where the defendant was given actual notice  and the opportunity to participate;  the restraint of future conduct by the defendant, such as harassing or  stalking of an intimate partner or child of the intimate partner or  defendant; and a finding that the defendant represents a credible threat to the  physical safety of an intimate partner or child, or by its terms explicitly  prohibits the use, attempted use, or threatened use of physical force  against the intimate partner or child that would reasonably be  expected to cause bodily injury, among other things.

section_title: ATF Firearm Retrieval Process
paragraphs: ATF is responsible for, among other things, retrieval of firearms that have  been transferred to prohibited individuals. Specifically, when the FBI  determines, after 3 business days, that an individual to whom a firearm  was transferred is prohibited from receiving or possessing a firearm, the  FBI refers this delayed denial case to ATF. ATF reviews delayed denial  cases it receives from the FBI to confirm the prohibition, and then refers  the case to an ATF field office for potential retrieval actions. ATF field  offices conduct additional research by coordinating with local law  enforcement agencies. If ATF determines that a person should not have  been denied, ATF notifies the FBI that the firearm transaction was not  prohibited and that the transfer was permissible. If ATF confirms that the  person who received the firearm was prohibited, an ATF official contacts  the firearm purchaser to coordinate transferring the firearm to a licensed  dealer or a third party who is not a prohibited person, or seizes the  firearm.

section_title: Grant Programs for Record Submissions Used in NICS Checks
paragraphs: The goal of the National Criminal History Improvement Program (NCHIP)  is, among other things, to improve the nation’s safety and security by  enhancing the quality, completeness, and accessibility of criminal history  record information by providing direct financial and technical assistance to  states and tribes to improve their criminal record systems and other  related systems. For example, according to the 2016 grant solicitation,  the funds can be used to, among other things, assist states and tribes in  finding ways to make more records available to NICS through the III,  NCIC, and NICS Index and to address gaps in the federal and state  records currently available in NICS. All states and five territories have  received NCHIP grant funds at least once since the inception of the  NCHIP grants in 1995. The NICS Act Record Improvement Program  (NARIP) implements the grant provisions of the NICS Improvement  Amendments Act of 2007 (NIAA) to improve records available to NICS  and help eligible states and tribes improve completeness, automation,  and transmittal of records to state and federal systems. The  Consolidated Appropriations Act, 2016, appropriated $73 million for  grants to states to upgrade criminal and mental health records for NICS,  of which no less than $25 million shall be for grants made under the  authorities of the NICS Improvement Amendments Act of 2007. These  grants were to, among other things, assist states and tribes in supplying  accurate and timely court orders and records of misdemeanor crimes of  domestic violence for inclusion in federal and state law enforcement  databases used to conduct NICS background checks. Since 2011, DOJ  has placed a funding priority on NARIP grant projects that increase the  number of mental health records accessible to NICS. According to the  grant solicitations, states must use a portion of awarded funds to make  such records accessible to NICS unless the state can provide information  showing that another prohibiting category represents a greater  information gap.

section_title: States Vary in Their Use of Indicators That Identify Domestic Violence Records That Prohibit a Firearm Transfer
subsections: section_title: 22 States Use Indicators to Identify Criminal History Records That Prohibit Firearm Transfers, Which Include Domestic Violence Records
subsections: section_title: MCDV records in the Interstate Identification Index
paragraphs: Twenty-two states voluntarily participate in the Identification for Firearms  Sales (IFFS) program and flag criminal records in the III that prohibit an  individual from receiving or possessing a firearm. States can use the  IFFS flag to identify disqualifying convictions in any court of a crime  punishable by imprisonment for a term exceeding 1 year. States can  also use the IFFS flag to identify disqualifying MCDV records, but the total  number of MCDV records that states make available to the III for use  during NICS checks is generally unknown. FBI officials noted that it is not  possible to identify all of the domestic violence records in the III because  there is no automatic process that can disaggregate these records from  the 88 million other criminal records. As of October 2015, states used the  IFFS flag to indicate that approximately 5 million (6 percent) of 88 million  total III records were firearm disqualifying for the range of criteria,  including domestic violence records.

According to NICS Section and BJS officials, states predominantly make  MCDV records available for NICS checks through the III versus the NICS  Index. NICS officials said that they encourage states to enter criminal  records into III because the records are then available for all criminal  justice purposes, not just NICS checks. BJS was responsible, under the  NIAA, for collecting initial state estimates of the number of MCDV  records, among the other prohibiting categories, that exist at the local or  originating agencies and the number of records that are or could be made  available to NICS. However, in 2012, BJS decided to stop collecting  state record estimates because feedback from focus groups comprised of  FBI and state officials and analysis of the collected record estimates  demonstrated that certain estimates were not sufficiently reliable for their  intended use due to factors such as states using widely different methods  to estimate the number of records.

According to FBI guidance, NICS examiners and POC states can deny a  firearm transfer based on a disqualifying IFFS flag after verifying that the  person seeking to obtain the firearm matches with the record and  reviewing the criminal record information that is returned from the NICS  check without verifying that the other elements of the firearm prohibition  for MCDVs were met. Officials from three of five POC states we spoke  with said they will deny a firearm transfer if the IFFS flag indicates there is  a firearm-disqualifying record. Officials from the other two POC states  said they will conduct additional research prior to denying the firearm  transfer, such as obtaining and reviewing a police report or court record,  to verify that all of the prohibiting criteria are met.

section_title: State Challenges in Submitting Criminal Records and DOJ Assistance
paragraphs: Based on our discussions with officials from eight states, DOJ, SEARCH,  and NCSC, we identified two general challenges (versus challenges  related to flags) that state officials most frequently cited as negatively  affecting their ability to make criminal records—both felony and  misdemeanor records—available to the III: (1) lack of fingerprinted arrest  records, such as when law enforcement cites and then releases an  individual and (2) incomplete criminal records where the arrest record  does not have a final disposition. These are consistent with challenges  we have previously reported.

Fingerprints not collected and cite-and-release practices: As we  previously reported, incomplete or missing criminal history records can  result from law enforcement officials citing and releasing individuals  without formally arresting and fingerprinting them. Criminal records  without fingerprints are not available in the III, and hence, these records  would not be available for a NICS check. Officials from four of the eight  states we contacted said their state has laws that allow law enforcement  officials to issue a citation to individuals for misdemeanor crimes,  including crimes that are domestic-violence related, instead of a formal,  fingerprinted arrest. Officials from the remaining four states said their  state has laws that require a fingerprinted arrest for misdemeanor crimes  that could be related to domestic violence. Officials from two states said  they are using federal grant funds, such as NCHIP or NARIP, to enter  non-fingerprinted MCDV records into the NICS Index. For example,  Nebraska officials are using NARIP funds to develop a court process that  will automatically identify MCDV records that qualify for the federal  firearm prohibition and enter these records into the NICS Index. DOJ also  provides grant funds to states to purchase mobile live scan devices that  digitally record and electronically transmit fingerprint images or to place  live scan devices in courtrooms to help ensure that all arrests have a  fingerprinted arrest record in the III. From fiscal years 2009 through 2015,  DOJ provided approximately $6 million of the $95 million in NARIP grants  to 13 states specifically for MCDV and protection order projects.

Criminal history records not complete: States may face challenges in  providing complete criminal records (records that have the arrest charge  and the disposition of the arrest, such as conviction or acquittal), which  can make it challenging to determine if an individual should be prohibited  under federal law from receiving or possessing a firearm. Officials from  seven of the eight states we contacted said providing complete criminal  records to the III, which include felony and misdemeanor records, was a  challenge. As we previously reported, DOJ has engaged in various efforts  to address state challenges in providing complete criminal history  records. For example, states have used NCHIP grant funds to improve  the completeness of domestic violence records available to NICS by  updating records that only contain arrests to include disposition  information and upgrading and automating criminal history record  systems to capture data on dispositions from courts and prosecutors.  According to senior BJS officials, from fiscal years 2006 through 2015,  DOJ provided approximately $11 million of the $137 million in NCHIP  grants to states and territories specifically for protection order and MCDV  projects. DOJ also helps states by sharing best practices through  informational websites and reports and on-site technical assistance. For  example, under a DOJ grant through the Office of Justice Programs,  Bureau of Justice Assistance, the NCSC created a web-based toolkit that  identifies, among other things, best practices on how to overcome  disposition reporting and coordination challenges among state and local  criminal justice agencies. According to DOJ officials, the toolkit was  completed in April 2016.

section_title: Protection Orders in NCIC
paragraphs: According to FBI data, all states; Washington, D.C.; and two territories  enter protection orders to the NCIC protection order file, and 47 states;  Washington, D.C.; and two territories also submit orders with the “Brady  Indicator,” which flags orders related to domestic violence that prohibit the  individual from receiving or possessing firearms under federal law. In  2015, approximately 334,000 (37 percent) of the 907,000 protection  orders in NCIC had the Brady Indicator (see fig. 2). State participation in  the NCIC protection order file is voluntary, and the extent to which states  enter protection orders into the NCIC varies (see appendix III for state  and territory protection order data). FBI officials said that they encourage  states to enter protection orders into the NCIC protection order file rather  than the NICS Index because these protection orders are then available  for all criminal justice purposes, not just NICS background checks.

According to FBI officials, the total number of domestic violence-related  protection orders in NCIC is unknown because the only way to identify  these protection orders is through the use of the Brady Indicator. States  are not required to use the Brady Indicator when entering protection  orders into NCIC and vary in the degree to which they voluntarily flag  disqualifying protection orders. Some states have developed practices for  using the Brady Indicator on protection orders. For example, Washington  state officials said that the state courts and law enforcement agencies  consistently use the Brady Indicator to identify firearm prohibiting  protection orders. State officials developed a standardized protection  order form that captures all the information needed to determine if the  order qualifies for the federal firearm prohibition. Additionally, state  officials offered training to court staff on how to use the form to determine  the Brady Indicator setting for the protection order. Officials from one of  the states we spoke with said that they do not encourage law  enforcement officials to use the Brady Indicator on protection orders  because of the complexity of the flag setting. The officials added that high  staff turnover in the local law enforcement agencies responsible for  entering the protection order information could also result in staff  incorrectly flagging protection orders with the Brady Indicator.

According to FBI guidance, NICS examiners and POC states can deny a  firearm transfer based on a disqualifying Brady Indicator after verifying  that the protection order is active without verifying that the other elements  of the firearm prohibition for protection orders were met. Officials from  three of five POC states we spoke with said they follow this guidance and  rely on the Brady Indicator to deny firearm transfers after verifying the  protection order is active without further research on whether the  protection order disqualifies firearm transfers. Officials from two other  states said they prefer to conduct additional research to ensure the  protection order meets the criteria to prohibit a firearm transfer prior to  denying a firearm transaction, such as reviewing a copy of the petition for  the protection order.
subsections: section_title: State Challenges in Submitting Protection Orders and DOJ Assistance
paragraphs: Officials from five of the eight states we spoke with said that they  generally do not face challenges entering protection orders into the NCIC  protection order file. Officials from the other three states said they face  challenges entering protection orders to NCIC due to the NCIC entry  requirements or the lack of resources and staff. For example, to enter a  protection order into NCIC, the protection order must contain certain  information, such as name, sex, and race, and it must include at least one  numeric identifier, such as date of birth or social security number. Officials  from one state said that it is not always possible to collect all the required  information, and, as a result, each year the state will average  approximately 1,200 to 1,400 protection orders that they cannot enter into  NCIC. Officials from another state said that they lacked sufficient staff and  resources to enter all protection orders that do not involve a familial  relationship into NCIC. Officials from the third state said that the state and  local criminal justice agencies did not have the staff and resources to  respond to “hit” inquiries 24 hours a day on protection orders. As a  result, only one district court in the state enters protection orders into  NCIC.

DOJ has grant programs available to states to, among other things,  facilitate submitting protection orders to NCIC and also to provide judicial  education on administering protection orders in domestic violence  situations and handling firearm prohibitions. For example, Nebraska state  officials said they used NARIP and NCHIP grant funds to develop a  mechanism for law enforcement agencies to enter protection orders  directly into NCIC. The officials said the portal has significantly increased  the number of protection orders entered into the NCIC. States have also  used NCHIP grants to validate and enter protection orders into the NICS  Index. For example, Pennsylvania officials said they received a 2015  NCHIP grant award to develop a process to enter protection orders into  the NICS Index that did not have all the information the FBI requires for  entry into NCIC. The officials said that these protection orders currently  are only available for in-state law enforcement purposes or firearm  checks and entering these protection orders into the NICS Index would  make them available for firearm checks outside of the state. Lastly, DOJ’s  Office on Violence Against Women (OVW) offers multiple grants to state  and local criminal justice agencies, victim services organizations, and  other entities that address domestic violence. For example, OVW grants  fund programs and staff that assist domestic violence victims in obtaining  a protection order, train judges on when it is appropriate to include a  firearm prohibition in a protection order, and enforce protection order  conditions, such as removing firearms from the subject of the protection  order.

DOJ has engaged in other efforts to help states enter protection orders  into the NCIC, such as in person and distance trainings, sharing best  practices, conferences, and audits. For example, the NCSC worked with  DOJ to develop an online training course for judges on how to develop  protection orders under domestic violence situations. Additionally, under  the direction of BJS, the NCSC and SEARCH plan to publish a series of  reports describing, among other things, the challenges states face in  providing NICS-related records and best practices that states have used  to make these records available. BJS made available the first of these  reports on mental health records in March 2016, and a BJS official said  the next report on protection orders will be available by late summer  2016. FBI also conducts audits of states with access to certain FBI  systems, such as NCIC, every 3 years. These audits can help improve,  among other things, the accuracy and completeness of protection orders  in NCIC by reviewing a sample of protection orders and comparing these  protection orders against supporting documentation. For example, DOJ  auditors identified a state where the NCIC protection orders did not  contain all available information, and the state redesigned its existing  protection order system to capture the additional information into NCIC.

section_title: Most States Submit a Limited Number of Domestic Violence Records to the NICS Index, Because Such Records Are More Often Made Available to Other Systems Checked by NICS
paragraphs: States can submit pre-validated, firearm disqualifying MCDV records and  protection orders to the NICS Index for use solely during NICS checks.  Pre-validated records are those that can be used to immediately deny a  firearm transfer, and are notated by the use of the Brady Indicator, IFFS  flag, or made available in the NICS Index. Pre-validated records expedite  NICS checks because NICS examiners and POC states can  automatically deny firearm transfers based on a NICS Index entry.  However, the FBI encourages states to first submit MCDV records and  protection orders to the III and NCIC, respectively, because these  databases are used for general criminal justice purposes in addition to  firearm sales. States may also enter records into the NICS Index if the  respective records in the III or NCIC do not contain all the information  needed to determine whether the record would prohibit a firearm transfer.
subsections: section_title: Misdemeanor Crimes of Domestic Violence
paragraphs: The total number of MCDV records that states entered into the NICS  Index increased from approximately 19,000 in fiscal year 2008 to  approximately 97,000 in fiscal year 2015. This increase largely reflects  the efforts of five states whose MCDV records made up approximately 91  percent of these records in the NICS Index in fiscal year 2015 (see fig.  3). Thirty-seven states had MCDV records in the NICS Index as of  September 30, 2015, and 18 states had made available more than 100  MCDV records to the NICS Index.

Some states have developed processes to submit pre-validated  prohibiting MCDV records to the NICS Index in order to expedite NICS  checks or make records available to NICS that are not available in other  FBI databases, such as the III. For example, Connecticut state officials  said they developed a process where court personnel identify potentially  prohibiting MCDV records and then a centralized clerk validates the  records as firearm-prohibiting and enters them into the NICS Index. The  officials noted that the motivation to enter MCDV records into the NICS  Index was to ensure that all prohibiting MCDV records were made  available for NICS checks because (1) Connecticut state law allows for  cite and release arrests for misdemeanor crimes and (2) the information  needed to determine if the record prohibits a firearm transfer may not be  available in the state primary court records or the criminal history  repository. Officials from two POC states we spoke with said they entered  disqualifying MCDV records into the NICS Index as they identified these  records during a NICS checks in order to expedite potential future NICS  checks of the same individual.

section_title: Protection Orders
paragraphs: The total number of protection orders that states entered into the NICS  Index increased from approximately 700 in fiscal year 2008 to  approximately 55,000 in fiscal year 2015. This increase in protection  orders predominantly reflects the effort of one state. Specifically,  approximately 47,000 (85 percent) of the approximately 55,000 records  were due to New York’s efforts to enter protection orders into the NICS  Index starting in fiscal year 2014 (see fig. 4). New York state officials said  they used federal grant funding to develop an automatic process that  uses protection order information collected by court clerks to identify  disqualifying protection orders and then enter these records into the NICS  Index and the NCIC. Officials said the motivation for this process is to  ensure that all disqualifying protection orders are available for NICS  checks and to facilitate and expedite the NICS check process. In total, 23  states had protection orders in the NICS Index as of September 30, 2015.

section_title: Most NICS Checks Involving Domestic Violence Records Are Completed before Firearm Transfers Take Place, but About 6,700 Firearms Were Transferred to Prohibited Individuals Since 2006; DOJ Could Analyze Denial Data to Help Establish Priorities
subsections: section_title: About 70 Percent of MCDV-Related Denials Were Completed within 3 Business Days, Which Is a Lower Percentage than for Other Prohibiting Categories
paragraphs: FBI data show that about 70 percent of NICS checks involving prohibiting  MCDV records were denied within 3 business days. Specifically, about  41,000 of the approximately 59,000 MCDV denials from fiscal years 2006  through 2015 were denied within 3 business days, with the remaining  18,000 transactions (30 percent) denied after 3 business days. No other  category had more than 20 percent of its denials delayed beyond 3  business days. FBI data also show that about 28,000 (94 percent) of the  approximately 30,000 domestic violence protection order denials from  fiscal years 2006 through 2015 were denied within 3 business days, with  the remaining 2,000 transactions (6 percent) denied after 3 business days  (see fig. 5).

According to our analysis of FBI data, denial determinations for checks  involving MCDV records also took longer than checks for other prohibited  categories. For example, while the FBI denied 70 percent of MCDV- related checks within 3 business days, it took the Bureau 9 business days  to determine 90 percent of all MCDV denials from fiscal years 2006  through 2015. As a comparison, it took the FBI 3 business days to  determine 90 percent of criminal conviction denials during the same  time period (see fig. 6).

Our analysis of FBI data also found that the number of business days  needed to complete 90 percent of MCDV denials has improved over  time—decreasing from 12 days in fiscal year 2006 to 7 days in fiscal year  2015 (see fig. 7). Other prohibiting categories also required fewer  business days to complete 90 percent of denials over time. For example,  criminal convictions decreased from 5 business days in fiscal year 2006  to 2 business days in fiscal year 2015. FBI officials were not aware of  what actions have contributed to the reduced number of days to reach  denial determinations.

In addition, NICS examiners were not able to complete many checks  initiated by the NICS Section before the FBI was required to stop  investigating and purge information related to the transactions from NICS.  The FBI is required to purge information related to unresolved NICS  checks within 90 days after the check was initiated. According to FBI  officials, the FBI purges unresolved NICS checks after 88 days to ensure  that they comply with the regulation. Our analysis of FBI data show that  171,994 (2.1 percent) of the 8,256,688 checks that the FBI initiated in  2014 had no proceed or denial determination made by the FBI within 88  days. According to FBI officials, these cases were categorized as  unresolved and the FBI does not track the outcomes of these cases. Our  analysis indicates that if the 2014 denial rates of NICS checks involving  domestic violence records applied to these unresolved checks,  approximately 1,930 would have been denied during 2014 for all  categories, of which about 130 because of a MCDV record and about 56  because of a protection order. FBI officials said they do not identify or  track information on unresolved checks—such as the possible prohibiting  offense that led to the check needing additional review or the reason a  determination was not made—due to system limitations and multiple  prohibiting categories being researched. The officials told us that because  they use all available resources to make a final determination, it is unclear  to them if tracking additional information could help reduce the number of  unresolved checks. For example, they noted that, in accordance with  some states’ records management practices, some records they would  need to complete the checks are no longer available and have been  destroyed.

section_title: More than 500 Firearms Transferred Each Year to Individuals with Prohibiting Domestic Violence Records Because Denial Determinations Were Made after 3 Business Days
paragraphs: According to FBI data, more than 500 firearms were transferred to  individuals with prohibiting MCDV records or prohibiting protection orders  each year from fiscal years 2006 through 2015—about 6,700 total  transfers—because the FBI denial determination was made after 3  business days, which resulted in the FBI referring these cases to ATF for  firearm retrieval. Under federal law, firearm dealers may transfer a  firearm to an individual if the dealer has not received a response from the  NICS Section after 3 business days. In cases where a proceed or denial  determination cannot be made within 3 business days, NICS examiners  continue to conduct research to determine whether an individual is  eligible for a firearm. The officials added that the NICS Section is to refer  any firearm transactions that they deny after 3 business days—known as  a delayed denial—to ATF for firearm retrieval if the NICS examiner  determines that the dealer has already transferred the firearm to the  individual.

FBI data show that the FBI referred a total of 6,221 MCDV delayed  denials and 559 protection order delayed denials to ATF for potential  firearm retrieval from fiscal years 2006 through 2015 because individuals  with prohibiting domestic violence records acquired a firearm. During  the same period, according to FBI data, the number of NICS checks the  FBI processed increased from about 5.2 million checks in fiscal year 2006  to about 9 million checks in fiscal year 2015. Also, from fiscal years  2006 through 2008, the number of FBI referrals to ATF related to  domestic violence declined from more than 1,200 to about 550 and  remained between 520 and 670 through fiscal year 2015 (see fig. 8). FBI  officials were not able to explain how the number of referrals to ATF has  remained relatively constant since fiscal year 2008 while the number of  NICS checks increased. The FBI was not able to specifically identify the  cause of the decline in firearm transfer referrals to ATF from 2006 to  2008, but noted that a change in the NICS process could account for the  initial decline.

section_title: Challenges the FBI and States Face in Completing Checks Involving Domestic Violence Records and Actions Taken to Address Challenges
subsections: section_title: Challenges Conducting Checks
paragraphs: Officials from the NICS Section said that it can be difficult to determine  the outcome of a NICS check—proceed or denied—when a prohibiting  category has multiple criteria that must be met in order to prohibit a  firearm transfer. As previously discussed, in order to deny a firearm  transfer for the MCDV and protection order prohibiting categories,  multiple criteria must be met, including the element of force, the  relationship between the offender and victim, and due process. Another  challenge is that states differ on the criminal offenses that can be  considered an MCDV. For example, some states have assault, battery, or  disturbing the peace offenses while other states have specific domestic  violence offenses.

Officials from the NICS Section and POC states we contacted said that it  may take more than 3 business days to complete checks that involve  multiple criteria in part because of the required coordination with local  agencies to obtain information related to the criteria. Officials from one  POC state noted that communication and document retrieval can  sometimes take a week or longer to obtain the necessary information to  make a determination. State officials said it often takes time to identify  which office or agency to contact in order to gain access to the necessary  information. Examiners from three POC states we contacted said it can  be difficult to get the necessary information in a timely manner. Also,  according to officials from two states, some local agencies charge a fee  for copies of documents which they said can inhibit accessing necessary  information to make a determination. Officials from three states we spoke  with also said they face particular challenges retrieving older criminal  records because they are not electronic or have been purged from state  criminal record repositories.

section_title: State Actions to Address Challenges
paragraphs: Officials from the eight states we contacted identified some actions they  have taken to address challenges to completing checks before firearm  transfers occur.

Pre-validating prohibiting domestic violence records: Officials from  six of the eight states we spoke with have established processes to  proactively identify or pre-validate prohibiting domestic violence records  to help get checks completed faster. Pre-validated records are those that  can be used to immediately deny a firearm transfer, and are notated by  the use of the Brady Indicator, IFFS flag, or made available in the NICS  Index. For example,

Connecticut officials said they have developed a process in which  potentially prohibiting MCDV records are identified, independently  validated, and then entered into the NICS Index. The officials told us  this effort was to help ensure that all prohibiting MCDV records were  made available for NICS checks.

New York officials said they identify federal and state prohibiting  MCDVs using a text banner that explicitly states that an individual is  prohibited from purchasing a firearm on their criminal history records.  The officials said they have also utilized federal grant funds to develop  a calculation process to identify firearm prohibiting protection orders to  make them available in the NICS Index.

Pennsylvania officials said they use the IFFS flag to indicate when an  arresting charge is a firearm disqualifier. Pennsylvania also uses an  automated process that includes identifying the relationship between  the victim and offender to apply the Brady Indicator to prohibiting  protection orders.

Nebraska officials said they use a system for NCIC protection order  entries to assist in identifying firearm-prohibiting criteria, which is  verified and supplemented by law enforcement officials. The system  then applies the Brady Indicator based on criteria provided to the  system.

New Mexico officials said they report relevant court records to the  NICS Index and use a computer query program to identify MCDV  records and protection orders that should be included.

Washington state officials said they use the Brady Indicator to flag  prohibiting domestic violence protection orders entered into the NCIC  protection order file.

Allowing additional time to complete checks before firearm  transfers: Three of our eight sample states have passed laws that allow  additional time to complete checks (for all prohibiting categories) before a  firearm is transferred. Specifically, Washington law provides for 10  business days to complete a NICS check. Washington examiners said  that the additional time is necessary to identify prohibiting criteria and to  make a determination if an individual is prohibited. Pennsylvania law  requires a 48 hour mandatory wait period before a firearm can be  transferred even when a background check is completed within 3  business days and provides for a temporary delay of a firearm transfer if  there is a potential prohibiting MCDV record to allow for obtaining all  information necessary to make an accurate determination. Pennsylvania  officials noted that the temporary delay can be extended indefinitely to  prevent a firearm transfer to an individual prohibited due to a domestic  violence record. Connecticut law allows up to 60 days to conduct a NICS  check for an eligibility certificate, which is required to purchase a firearm  in the state and an eligibility certificate is not issued if a final  determination of eligibility cannot be made.

Other actions taken to help complete checks before firearm  transfers occur: According to Texas officials, Texas references state  statutes on all criminal records that are submitted to the FBI. The officials  said this allows examiners to more quickly identify prohibiting crimes and  make accurate determinations. Some POC states, such as Washington  and Nevada, enter records into the NICS Index after state officials have  researched and identified a prohibiting record in order to expedite future  checks involving the same individual. In addition to state actions, the  NICS Section adds records to the NICS Index when prohibiting criteria  are identified and the information is unable to be updated in III or NCIC.

section_title: DOJ Actions to Complete Timely and Accurate NICS Checks
paragraphs: DOJ has also taken actions to help make timely determinations of NICS  checks, including providing grants to states to improve records. To help  ensure accurate determinations, DOJ conducts a secondary review of  denial determinations, and established an appeal process for individuals  who believe they were wrongfully denied the ability to purchase a firearm.

Grants: As previously mentioned, DOJ provides NCHIP and NARIP grant  funds to states to improve general record availability and to better ensure  that arrest records and corresponding court dispositions are available for  NICS checks. According to DOJ guidance for grant applications, gaps in  records significantly hinder the ability of NICS to quickly and accurately  confirm whether a prospective purchaser is prohibited from acquiring a  firearm. Officials from BJS, the agency responsible for soliciting grant  proposals and issuing funds, said that, to the extent possible, they work  closely with the FBI to ensure projects are addressing challenges related  to prohibited categories. For example, states can use grant funds to help  make more records available for use in NICS checks. Officials from one  state we spoke with, New York, said they utilized federal grant funds to  help make more records available in the NICS Index, thereby addressing  gaps in records from the state.

Secondary review of denial determinations: ATF, within DOJ, is  responsible for reviewing denied firearm transactions. Specifically, ATF  reviews all delayed denial referrals it receives from the FBI, after the FBI  has reviewed the case and made the determination that a firearm was  transferred to a prohibited individual. According to ATF officials, when the  FBI makes a delayed denial determination and refers a case to ATF for  retrieval, ATF reviews the referrals to determine whether the denial is  valid and a retrieval action is necessary. ATF’s process helps ensure that  prohibited individuals do not retain possession of a firearm. ATF officials  said they sometimes find that the firearm was not transferred, or that the  denied individual should have been allowed to purchase the firearm.  According to our analysis of ATF data, ATF referred about 76 percent of  domestic violence-related delayed denials to its field offices for retrieval  actions from October 1, 2006, through July 13, 2015. ATF determined  through its review process that the remaining 24 percent of referrals did  not need to be sent to the field for retrieval because the firearm was not  transferred, the firearm was returned to the dealer without ATF  intervention, or the denial was overturned.

Appeals: DOJ has a process for individuals to appeal a decision when  they are denied a firearm. According to FBI data, from fiscal years 2006  through 2015, the FBI received about 188,000 total appeals. The data  also show that about 35,000 of those denial determinations were  overturned on appeal.

section_title: FBI Does Not Analyze Some Available Data to Monitor the Timeliness of NICS Checks and Share Results to Help Set Priorities
paragraphs: DOJ and the FBI have taken steps to help improve the timely completion  of NICS checks but have not established procedures to assess or monitor  how long it takes to complete checks for each prohibiting category, which  could help inform FBI and other DOJ entities on which areas they should  prioritize resources, such as grant funding and training. Specifically, the  FBI and other DOJ entities have identified some state practices that could  help improve the timely completion of NICS checks. In addition, DOJ  issues grants to states in order to help make more records readily  available during NICS checks and reduce the time needed to conduct  research and make final determinations. BJS officials responsible for  administering grants noted that they work with the NICS Section to the  extent possible to coordinate and prioritize grant funding. FBI officials also  said that they are in the process of changing how they manage the  receipt of information from states, such as dispositions and incident  reports, in an effort to reduce the amount of time necessary to complete  NICS checks.

However, the FBI does not assess or monitor how long it takes to  complete checks for each prohibiting category. According to NICS  Section officials, an analysis of denial data would not affect how the FBI  conducts checks because the time required to make determinations (i.e.,  proceed or denial) is dependent on the availability of information supplied  by states. BJS officials noted that an analysis of the time required to  complete checks for each prohibiting category could help them identify  areas in which they could conduct state outreach and assist states in  providing more complete records, such as through the use of grant  funding.

Our analysis of FBI denial data shows that completing NICS checks  involving certain prohibiting categories, including those we focused on for  this report—MCDV and protection orders—present challenges.  Specifically, more than 500 firearms were transferred to individuals with  prohibiting domestic violence records each year from 2006 through 2015.  Our analysis also found that the time needed to complete checks  involving domestic violence records declined between fiscal years 2006  and 2015, but DOJ and FBI officials were not able to identify what actions  they may have taken that contributed to the improvement.

The mission of the NICS Section is to enhance national security and  public safety by providing the timely and accurate determination of a  person’s eligibility to possess firearms in accordance with federal law.  However, as discussed previously, some NICS checks are delayed and  denied after the firearm has already been transferred to the prohibited  individual because information necessary to complete a background  check prior to a firearm transfer is not immediately available and  additional research must be conducted. Standards for Internal Control in  the Federal Government states that internal control monitoring should  assess the quality of performance over time and ensure that the findings  of audits and other reviews are promptly resolved. Monitoring is to be  performed continually and ingrained in the agency’s operations, and  managers are to evaluate findings to determine if any corrective actions  are needed. Ongoing monitoring or analysis similar to the analysis we  conducted could help the FBI determine if specific prohibiting categories  present greater challenges in completing determinations than other  categories and, in turn, the FBI could use the results and provide them to  other DOJ entities to help establish priorities. For example, BJS could use  the results of the FBI’s analysis to help prioritize grants to states or focus  state training and outreach to address challenges with specific prohibiting  categories, among other actions.

section_title: Conclusions
paragraphs: Sustained federal and state efforts to support NICS background checks  are critical in helping to ensure public safety. The national system of  criminal background checks relies first and foremost on the efforts of state  and local governments to provide complete and accurate records to the  FBI. State and local governments often rely on DOJ’s guidance, grants,  and identification of practices that can help mitigate challenges in  conducting background checks. DOJ has steps in place to reduce the risk  of erroneously denying individuals from possessing firearms and an  appeals process for individuals who believe they were wrongfully denied  the ability to possess a firearm. However, because it has not assessed its  data to identify which prohibiting categories result in more delayed denials  and firearm transfers to prohibited individuals, the agency cannot  reasonably ensure it has effectively prioritized resources and tools to  assist states in providing more complete and accurate records for those  categories.

section_title: Recommendation for Executive Action
paragraphs: To help the NICS Section achieve its mission to enhance national security  and public safety by providing the timely and accurate determination of a  person’s eligibility to possess firearms, we recommend that the Director of  the FBI monitor NICS check outcomes for specific categories of  prohibited individuals to assess timeliness and provide this information to  other DOJ entities for use in establishing priorities and tools to assist  states in submitting more complete records for use during NICS checks.

section_title: Agency Comments and Our Evaluation
paragraphs: We provided a draft of this report for review and comment to DOJ. DOJ  provided written comments, which are reproduced in appendix IV. DOJ  agreed with our recommendation.

We are sending copies of this report to the Attorney General, and other  interested parties. In addition, the report is available at no charge on the  GAO website at http://www.gao.gov.

If you or your staff have questions about this report, please contact me at  (202) 512-8777 or goodwing@gao.gov. Contact points for our Offices of  Congressional Relations and Public Affairs may be found on the last page  of this report. Key contributors to this report are listed in appendix V.

section_title: Appendix I: Scope and Methodology
paragraphs: To describe the extent to which states identify domestic violence records  for use during National Instant Criminal Background Check System  (NICS) checks, we analyzed Federal Bureau of Investigation (FBI) data  on the number of domestic violence records that states identified and  made available to NICS, including those protection orders flagged with  the Brady Indicator, provided by states and territories from 2006 through  2015. We selected this time frame in order to have a sufficient length of  time to identify trends in the number of records available to NICS. To  assess the reliability of these data, we questioned knowledgeable officials  about the data and the systems that produced the data, reviewed relevant  documentation, and examined the data for obvious errors. We determined  that some of the data were not sufficiently reliable for the purposes of our  report. Specifically, we did not report the Identification for Firearms Sales  (IFFS) flag data from 2006 through 2014 due to inaccurate flag settings  and the lack of controls on who could modify the flag settings. These  issues were corrected for 2015, so we determined that the 2015 IFFS flag  data were sufficiently reliable for our purposes.

We were not able to identify all of the domestic violence records that  states have made available to the FBI because of challenges in  disaggregating some of these records from other criminal history records,  but to the extent possible we took steps to identify trends in the data. We  analyzed, on a more limited basis, the number of records that each state  had made available regarding other prohibiting categories, such as  mental health records, to provide context for trends we identified related  to domestic violence records. We also analyzed the last 3 years of FBI  state audit findings to report on general challenges states face with  respect to the accuracy, validity, and completeness of domestic violence  records. Additionally, we analyzed U.S. Department of Justice’s (DOJ)  National Criminal History Improvement Program and NICS Act Record  Improvement Program grant solicitations and award amounts to identify  prioritization and trends in the grant award decisions.

In addition, we interviewed officials from eight selected states  (Connecticut, Nebraska, Nevada, New Mexico, New York, Pennsylvania,  Texas, and Washington) to gain an understanding of their processes for  submitting domestic violence records to the FBI and the extent to which  they have encountered challenges, if any, in submitting records. We  selected this non-generalizable sample of states to reflect a range of  factors, including five point of contact (POC) states and three non-POC  states, the number of domestic violence records they currently make  available to the FBI and whether they have received grant funding to  improve their record submissions. Additionally, we interviewed groups  with an interest in, among other things, individuals with a history of  domestic violence and firearm background checks, including Everytown  for Gun Safety, the National Rifle Association, and the Law Center to  Prevent Gun Violence, SEARCH—the National Consortium for Justice  Information and Statistics—and the National Center for State Courts.  Finally, we interviewed officials from various DOJ components with  responsibility for maintaining NICS records or supporting related  activities, including the FBI’s Criminal Justice Information Services (CJIS)  Division and NICS Section, the Bureau of Justice Statistics (BJS), and the  Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to obtain  additional perspectives on the records states provide for use during NICS  checks.

To determine the extent to which NICS checks involving domestic  violence records are completed before firearm transfers take place, we  analyzed DOJ documentation and data to identify trends in total number  of NICS checks, denials, delayed denials, firearm retrievals, and days  required to determine the outcome of a check. Specifically, we obtained  record level FBI data on NICS check denials and delayed denials— 798,401 records from fiscal years 2006 through 2015—and analyzed  NICS transaction dates, denial codes, prohibiting categories, and other  information to identify the length of time it took examiners to make a  denial determination, by year and by prohibiting category. We did not  analyze record level data on proceeded NICS checks because FBI is  required to purge all identifying information related to the NICS  transaction.

To illustrate variation in the amount of time denials in different prohibiting  categories took, we compared the number of business days taken to  complete 90 percent of denials by category. For most prohibiting  categories, once 90 percent of denials were completed, the percentage  completed each subsequent day was diminishingly small. Specifically,  after most prohibiting categories reached a 90 percent denial rate, the  rate increased by less than 2 percent each day. We also obtained data  from ATF and the FBI on retrieval referrals and appeals by individuals  denied a firearm for fiscal years 2006 through 2015 and analyzed these  data to identify trends in NICS checks appeals. To assess the reliability of  these data, we questioned knowledgeable officials about their information  collection procedures and systems, reviewed relevant documentation,  and examined data for obvious errors. We determined that the data were  sufficiently reliable for the purposes of our report.

To determine whether challenges exist that may increase the time it takes  to complete a NICS check, we analyzed testimony from DOJ and the  selected states regarding characteristics of domestic violence records  that can present challenges and lead to checks exceeding the federally  allowed 3 business days before a firearm can be transferred. We also  obtained documentation and testimony from DOJ and selected states  regarding federal and state efforts to increase the number of checks  completed before firearms are transferred, including grant awards and  training to states. We also interviewed DOJ management and program  officials to determine DOJ’s efforts to help NICS and states overcome  challenges that could contribute to delayed denials, including guidance,  training, and actions to share best practices. We analyzed documentation  and interviewed officials from ATF about its efforts to review delayed  denial cases prior to initiating a firearm retrieval, challenges it faced, and  actions that could minimize the number of retrieval efforts. Finally, we  compared DOJ’s actions to monitor the outcomes of the checks and use  the results to establish and manage program priorities against criteria  outlined in federal internal control standards.

We conducted this performance audit from June 2015 to July 2016 in  accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.

section_title: Appendix II: State Options for Conducting Background Checks Using the National Instant Criminal Background Check System (NICS)
paragraphs: Appendix II: State Options for Conducting  Background Checks Using the National Instant  Criminal Background Check System (NICS)

States have three options for conducting NICS checks, referred to as  non-point of contact (non-POC), full point of contact (full-POC), and  partial-POC states. In non-POC states, Federal Firearm Licensees initiate  a NICS check by contacting the Federal Bureau of Investigation’s (FBI)  NICS directly by telephone or via the Internet and any required follow-up  research is performed by NICS Section staff. In full-POC states, Federal  Firearms Licensees initiate a NICS check by contacting one or more state  organizations, such as a state or local law enforcement agency, to query  NICS databases and related state files and then, if necessary, the state  organization carries out any required follow-up research. In partial POC  states, Federal Firearm Licensees initiate a NICS check for handgun  purchases or permits by contacting the state who then queries NICS and  state files but contacts the NICS to initiate checks for long gun purchases,  such as shot guns or rifles.

According to the DOJ-funded report, states elect POC or non-POC status  for various reasons, such as a state’s attitude toward gun ownership,  since many POC states have prohibiting legislation that is stricter than  federal regulations. For example, Oregon has five statutorily prohibiting  categories of misdemeanor convictions in addition to domestic violence.  Additionally, there may be an economic incentive for states to elect non- POC status, since implementing and operating a POC may cost a state  more money than it can collect in fees charged to Federal Firearm  Licensees for conducting background checks. For example, DOJ reported  that Idaho elected not to become a full-POC state because of the added  expense of performing background checks for long gun purchases.

section_title: Appendix III: Protection Orders in the National Crime Information Center Protection Order File for States, District of Columbia, and Territories, 2006 through 2015
subsections: section_title: State

section_title: Category Total

section_title: State
paragraphs: Legend:  Total = Total protection orders active during the year  Brady = Total protection orders with a disqualifying Brady Indicator. The Brady Indicator flags protection orders related to domestic violence that prohibit  the individual from receiving or possessing firearms under federal law.

section_title: Appendix V: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact

section_title: Staff Acknowledgments
paragraphs: In addition to the contact named above Eric Erdman, Assistant Director,  and Andrew Curry, Analyst-in-Charge, managed this assignment.  Winchee Lin, John Hocker, Billy Commons, Dominick M. Dale, Michele C.  Fejfar, Eric D. Hauswirth, and John Yee made significant contributions to  the work.


Question-summary annotations: questions: question: How do states differ in their domestic violence records?
answer: Most of the 50 states submit domestic violence records—misdemeanor crime of domestic violence (MCDV) convictions and domestic violence protection orders—to the Department of Justice's (DOJ) Federal Bureau of Investigation (FBI) for use during National Instant Criminal Background Check System (NICS) checks, but states vary in their efforts to identify (“flag”) such records that prohibit an individual from obtaining a firearm under federal law. The total number of prohibiting domestic violence records that states submit to the FBI is generally unknown because states are not required to flag prohibiting records and there is no automated process to disaggregate such records from other records checked by NICS.
child_questions: question: How do these records affect one's ability to purchase a firearm?
answer: For example, in 2015, 22 states voluntarily participated in a program to identify criminal history records that prohibit individuals from obtaining firearms, which can include domestic violence records. FBI data also show that 47 states identified domestic violence protection orders that prohibit firearm purchases.

question: What is the relationship between domestic violence records and NICS checks?
answer: Since not all domestic violence records that states submit to the FBI meet federal prohibiting criteria, flagging prohibiting records can help expedite NICS checks.

questions: question: What does FBI data show about NCIS checks?
answer: For fiscal years 2006 to 2015, FBI data show that most NICS checks involving domestic violence records that resulted in denials were completed before firearm transfers took place (see table).
child_questions: question: What happened when these indviiduals had prohbiting domestic violence records?
answer: However, about 6,700 firearms were transferred to individuals with prohibiting domestic violence records, which resulted in the FBI referring these cases to DOJ's Bureau of Alcohol, Tobacco, Firearms and Explosives for firearm retrieval.

question: How might the speed of FBI response affect these firearm transfers?
answer: Under federal law, firearm dealers may (but are not required to) transfer a firearm to an individual if the dealer has not received a response (proceed or denial) from the FBI after 3 business days.

questions: question: How does the FBI's completion of denials differ between those involving MCDV convictions and those involving domestic violence protection orders?
answer: FBI data also show that during fiscal year 2015, the FBI completed 90 percent of denials that involved MCDV convictions within 7 business days, which was longer than for any other prohibiting category (e.g., felony convictions). The FBI completed 90 percent of denials that involved domestic violence protection orders in fewer than 3 business days.

question: To what extent are domestic violence records available in NICS databases?
answer: According to federal and selected state officials GAO contacted, the information needed to determine whether domestic violence records—and in particular MCDV convictions—meet the criteria to prohibit a firearm transfer is not always readily available in NICS databases and can require additional outreach to state agencies to obtain information.
child_questions: question: How has DOJ taken steps to improve NICS?
answer: DOJ has taken steps to help states make prohibiting information more readily available to NICS—such as through training and grant programs—but does not monitor the timeliness of checks that result in denials by prohibiting category.

question: How could the FBI work together with DOJ in improving these systems?
answer: Ongoing monitoring could help the FBI determine if specific prohibiting categories present greater challenges in making determinations than other categories and, in turn, the FBI could provide the results to other DOJ entities to help them establish priorities, such as for grants, state outreach, or training.

questions: question: What is NICS used for?
answer: The FBI and designated state and local criminal justice agencies use the FBI's NICS to conduct background checks on individuals seeking to obtain firearms.

question: What kinds of people might be prohibited from possessing firearms?
answer: Persons prohibited by federal law from possessing firearms include individuals who have domestic violence records that meet federal disqualifying criteria.
child_questions: question: In what situation might a firearm dealer be able to transfer a firearm to an individual without FBI input?
answer: Under federal law, firearm dealers may transfer a firearm to an individual if the FBI has not made a proceed or denial determination within 3 business days.