The permanent provisions of the Brady Handgun Violence Prevention Act (Brady Act) took effect on November 30, 1998. Under the Brady Act, before a federally licensed firearms dealer can transfer a firearm to an unlicensed individual, the dealer must request a background check through NICS to determine whether the prospective firearm transfer would violate federal or state law. The Brady Act’s implementing regulations also provide for conducting NICS checks on individuals seeking to obtain permits to possess, acquire, or carry firearms. Under federal law, there are 10 categories of individuals who are prohibited from During a NICS check, descriptive data receiving or possessing a firearm.provided by an individual, such as name and date of birth, are to be used to search three national databases containing criminal history and other relevant records to determine whether or not the person is disqualified by law from receiving or possessing firearms. Interstate Identification Index (III)—Managed by the FBI, 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)—An automated, nationally accessible database of criminal justice and justice-related records, which contains, among other things, information on wanted persons (fugitives) and persons subject to restraining orders. NICS Index—Maintained by the FBI, this database was created for presale background checks of firearms purchasers and contains information on persons predetermined to be prohibited from possessing or receiving a firearm. According to DOJ, approximately 16 million background checks were run through NICS during 2011, of which about half were processed by the FBI’s NICS Section and half by designated state and local criminal justice agencies. States may choose among three options for performing NICS checks, which include the state conducting all of its own background checks, the state and DOJ sharing responsibility for background checks, or DOJ conducting all background checks for a state. See appendix II for further discussion of these differences. The Gun Control Act of 1968, as amended, and ATF regulations establish the definitions of the mental health and unlawful drug use prohibiting categories and, therefore, the scope of relevant records to be made available to the FBI by states and territories. As defined in ATF regulations, mental health records that would preclude an individual from possessing or receiving a firearm include (1) persons who have been adjudicated as “a mental defective,” including a finding of insanity by a court in a criminal case, incompetent to stand trial, or not guilty by reason of insanity, and (2) individuals involuntarily committed to a mental institution by a lawful authority. The prohibitor—that is, the condition or factor that prohibits an individual from possessing or receiving firearms— does not cover persons in a mental institution for observation or a voluntary admission to a mental institution. Mental health records are found within two databases checked during a NICS background check, the III, and the NICS Index. Federal law prohibits individuals who are unlawful users of or addicted to any controlled substance from possessing or receiving a firearm. ATF regulations define an unlawful user of or addicted to any controlled substance as a person who uses a controlled substance and has lost the power of self-control with reference to the use of the controlled substance and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician. In general, under these regulations, use of such substances is not limited to the precise time the person seeks to acquire or receives a firearm; instead, inference of current use may be drawn from evidence of recent use or pattern of use through convictions, multiple arrests, and failed drug tests, among other situations. ATF regulations further provide examples upon which an inference of current use may be drawn, including a conviction for use or possession of a controlled substance within the past year or multiple arrests related to controlled substances within the past 5 years if Unlawful drug use the most recent arrest occurred within the past year.records associated with a criminal arrest or conviction are generally found in the III and those that are not associated with an arrest or conviction are entered into the NICS Index. FBI officials reported that states submit the vast majority of their unlawful drug use records to the III. The NIAA provides that such disqualification determinations are those made under subsection (g) or (n) of section 922 of title 18, United States Code, or applicable state law. grants if the state provides less than 50 percent of the records requested under the NIAA. This discretionary penalty may be increased to 4 percent through 2018 and to a mandatory 5 percent penalty thereafter if a state provides less than 90 percent of records requested under the act. Additionally, the NIAA establishes the NARIP grant program to assist states in providing records to NICS. In order to be eligible for such grants, states must meet two conditions. First, states are to provide DOJ with estimates, pursuant to a methodology provided by the Attorney General, of their numbers of potentially NICS-applicable records. Second, states must establish a program that allows individuals who have been prohibited from possessing firearms due to a mental health adjudication or commitment to seek relief from the associated federal firearms prohibition (disability). The NIAA refers to such programs as “relief from disabilities” programs. ATF is responsible for determining whether a state’s relief program satisfies the conditions of the NIAA and has developed minimum criteria for certifying a state’s program. For example, the program has to be established by state statute—or administrative regulation or order pursuant to state law—and include due process requirements that allow persons seeking relief the opportunity to submit evidence to the lawful authority considering the relief application. States increased the number of mental health records available for use during NICS background checks from 200,000 in October 2004 to 1.2 million in October 2011, but this progress largely reflects the efforts of 12 states, and most states have made little or no progress in providing these DOJ and state officials identified technological, legal, and other records.challenges that hinder states’ ability to make these records available. DOJ has made several forms of assistance available to help states provide records—including grants, conferences, and training—and the 6 states we met with generally reported finding these helpful. DOJ has begun to have states share their promising practices during regional meetings, but DOJ has not shared these practices nationally. The total number of mental health records that states made available to the NICS Index increased by approximately 800 percent—from about 126,000 records in October 2004 to about 1.2 million records in October As shown in figure 1, there was a marked 2011—according to FBI data.increase in the number of mental health records made available by states since 2008, when the NIAA was enacted. This increase largely reflects the efforts of 12 states that had each made at least 10,000 mental health records available by October 2011. From October 2004 to October 2011, 3 states increased the number of mental health records they made available by over 150,000 each. On the other hand, during this same time period, almost half of the states increased the number of mental health records they made available by less than 100 records. As of October 2011, 17 states and all five U.S. territories had made fewer than 10 mental health records available to the NICS Index. Factors other than the NIAA could have also contributed to the increase in mental health records made available to NICS, including state efforts already under way before the act, changes in state funding or leadership, and increases in the number of individuals with mental health records that would preclude them from receiving or possessing a firearm. In addition, in August 2008, the FBI’s NICS Section requested that states move certain records they had previously submitted to a “denied persons” category in the NICS Index to more specific categories of prohibitors, including the mental health category. According to NICS Section officials, the majority of records in the mental health category were new records submitted by states and not transferred from the denied persons category. The increase in available mental health records could be a factor in the increasing number of firearm transactions that have been denied based on these records. According to FBI data, the number of firearm transactions that were denied based on mental health records increased from 365 (or 0.5 percent of 75,990 total gun purchase denials) in 2004 to 2,124 (or 1.7 percent of 123,432 total gun purchase denials) in 2011. According to NICS Section officials, the vast majority of these denials were based on mental health records in the NICS Index, but that a small number could have been based on prohibiting information contained in other databases checked by NICS (e.g., criminal history records in the III noting a court finding of incompetence to stand trial). DOJ and state officials we met with identified technological challenges to making mental health records available to NICS, such as updating aging computer systems and integrating existing record systems. DOJ officials noted that technological challenges are particularly salient for mental health records because these records originate from numerous sources within the state—such as courts, private hospitals, and state offices of mental health—and are not typically captured by any single state agency. For example, records that involve involuntary commitments to a mental institution typically originate in entities located throughout a state and outside the scope of law enforcement, and therefore a state may lack processes to automatically make these records available to the FBI. In addition, 6 of the 16 states that applied for NARIP grant funding in 2011 cited technology barriers as a reason for requesting funding in their grant applications. For example, Virginia received a NARIP grant to, among other things, equip district courts with an automated means to transmit mental health records to the FBI and replace its previous manual and labor-intensive process.