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

Letter

Background

Overview of NICS Process

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.

ATF Firearm Retrieval Process

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.

Grant Programs for Record Submissions Used in NICS Checks

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.

States Vary in Their Use of Indicators That Identify Domestic Violence Records That Prohibit a Firearm Transfer

22 States Use Indicators to Identify Criminal History Records That Prohibit Firearm Transfers, Which Include Domestic Violence Records

MCDV records in the Interstate Identification Index

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.

State Challenges in Submitting Criminal Records and DOJ Assistance

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.

Protection Orders in NCIC

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.

State Challenges in Submitting Protection Orders and DOJ Assistance

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.

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

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.

Misdemeanor Crimes of Domestic Violence

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.

Protection Orders

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.

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

About 70 Percent of MCDV-Related Denials Were Completed within 3 Business Days, Which Is a Lower Percentage than for Other Prohibiting Categories

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.

More than 500 Firearms Transferred Each Year to Individuals with Prohibiting Domestic Violence Records Because Denial Determinations Were Made after 3 Business Days

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.

Challenges the FBI and States Face in Completing Checks Involving Domestic Violence Records and Actions Taken to Address Challenges

Challenges Conducting Checks

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.

State Actions to Address Challenges

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.

DOJ Actions to Complete Timely and Accurate NICS Checks

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.

FBI Does Not Analyze Some Available Data to Monitor the Timeliness of NICS Checks and Share Results to Help Set Priorities

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.

Conclusions

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.

Recommendation for Executive Action

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.

Agency Comments and Our Evaluation

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.

Appendix I: Scope and Methodology

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.

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

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.

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

State

Category Total

State

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.

Appendix V: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

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.