Gun Control
Opportunities to Close Loopholes in the National Instant Criminal Background Check System Gao ID: GAO-02-720 July 12, 2002The National Instant Criminal Background Check System (NICS) searches state criminal history records to prevent gun sales to ineligible persons. GAO found that state firearm laws and procedures may affect how these records are used by NICS. Each of the six states GAO surveyed had some mechanism by which persons with criminal convictions could have their rights to own a firearm restored. The six states typically require a waiting period before someone can apply for relief, and some criminal convictions make a person ineligible for restoration. In 26 states, the Bureau of Alcohol, Tobacco and Firearms has determined that a concealed carry permit may exempt permit holders from an NICS background check when they are buying a firearm. This situation underscores the need to carefully screen applications and monitor permit holders to ensure their eligibility to own firearms. The six states used various approaches to make it easier to identify individuals convicted of domestic violence. Despite these efforts, NICS failed to detect more than 2,800 persons convicted of domestic violence who bought firearms during the first three years the system was in operation.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-02-720, Gun Control: Opportunities to Close Loopholes in the National Instant Criminal Background Check System
This is the accessible text file for GAO report number GAO-02-720
entitled 'Gun Control: Opportunities to Close Loopholes in the National
Instant Criminal Background Check System' which was released on July
12, 2002.
This text file was formatted by the U.S. General Accounting Office
(GAO) to be accessible to users with visual impairments, as part of a
longer term project to improve GAO products' accessibility. Every
attempt has been made to maintain the structural and data integrity of
the original printed product. Accessibility features, such as text
descriptions of tables, consecutively numbered footnotes placed at the
end of the file, and the text of agency comment letters, are provided
but may not exactly duplicate the presentation or format of the printed
version. The portable document format (PDF) file is an exact electronic
replica of the printed version. We welcome your feedback. Please E-mail
your comments regarding the contents or accessibility features of this
document to Webmaster@gao.gov.
This is a work of the U.S. government and is not subject to copyright
protection in the United States. It may be reproduced and distributed
in its entirety without further permission from GAO. Because this work
may contain copyrighted images or other material, permission from the
copyright holder may be necessary if you wish to reproduce this
material separately.
United States General Accounting Office:
GAO:
Report to the Ranking Member, Committee on the Judiciary, House of
Representatives:
July 2002:
Gun Control:
Opportunities to Close Loopholes in the National Instant Criminal
Background Check System:
GAO-02-720:
Contents:
Letter:
Results in Brief:
Background:
Restoration of Gun Ownership Rights:
Handgun Concealed Carry Permits:
Domestic Violence Misdemeanor Convictions:
Our Previous Observations on Delayed NICS Transactions:
Conclusions:
Recommendation for Executive Action:
Matter for Congressional Consideration:
Agency Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Objectives:
Scope and Methodology:
Appendix II: Eligibility to Possess Firearms under Federal or State
Law:
Firearms Eligibility Restricted under Federal and State Law:
Criminal History a Key Element in Determining Eligibility:
Appendix III Restoration of Gun Ownership Rights:
Federal Law Recognizes State Methods of Restoring Gun Ownership Rights:
National Overview on State Methods to Restore Gun Ownership Rights:
Information on Restoration of Gun Ownership Rights in Selected States:
Appendix IV: Handgun Concealed Carry Permits:
National Overview of Concealed Carry Permit Programs:
Screening, Monitoring, and Revocation Procedures for Concealed Carry
Permits among Selected States:
Appendix V: Domestic Violence Misdemeanor Convictions:
Complex Federal Definition of Domestic Violence:
National Overview of Efforts to Identify Domestic Violence Offenders:
Differences in Domestic Violence Laws and Procedures in Selected
States:
Appendix VI: Comments from the Department of Justice:
Appendix VII: Comments from the Bureau of Alcohol, Tobacco and
Firearms:
Appendix VIII: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
Acknowledgments:
Tables:
Table 1: Crimes Committed by Persons after Their Gun Ownership Rights
Were Restored in Selected States:
Table 2: Reasons for Concealed Carry Permit Revocations in Selected
States:
Table 3: Firearm-Retrieval Actions Referred to ATF Compared with Total
FBI NICS Denials – by Prohibited Category:
Table 4: States Selected for Study of Firearms-Related Laws and
Procedures:
Table 5: Reasons Why NICS Denied Firearms Purchases (Nov. 30, 1998
through Oct. 7, 2001):
Table 6: Number of Criminal History Records in the United States (as of
Dec. 31, 1999):
Table 7: Summary Information on Laws and Procedures Regarding
Restoration of Gun Ownership Rights in Selected States:
Table 8: Status of States with Regard to Concealed Carry of Firearms
(as of June 2002):
Table 9: Methods Used by Selected States to Screen Persons Applying for
Concealed Carry Permits:
Table 10: Methods Used by Selected States to Monitor the Eligibility of
Concealed Carry Permit Holders:
Table 11: Criteria Used by Selected States to Revoke Concealed Carry
Permits:
Table 12: Selected State Laws and Procedures for Identifying Domestic
Violence Offenders in Criminal Records:
Abbreviations:
ATF: Bureau of Alcohol, Tobacco and Firearms:
BJS: Bureau of Justice Statistics:
FBI: Federal Bureau of Investigation:
NCHIP: National Criminal History Improvement Program:
NICS: National Instant Criminal Background Check System:
[End of section]
United States General Accounting Office:
Washington, DC 20548:
July 12, 2002:
The Honorable John Conyers, Jr.
Ranking Member:
Committee on the Judiciary:
House of Representatives:
Dear Mr. Conyers:
This report responds to your request for information on states‘
firearms-related laws and procedures involving restoration of gun
ownership rights, permits for concealed carry of firearms, and
convictions for domestic violence. The National Instant Criminal
Background Check System (NICS)”used by the Federal Bureau of
Investigation (FBI) and states to perform presale firearms background
checks”relies largely on searching state criminal history records to
prevent the sale of firearms to prohibited persons. [Footnote 1] The
states‘ firearms-related laws and procedures”such as those mentioned
above”may affect how such records are used by NICS in preventing the
sale of firearms to persons who are ineligible under applicable federal
and state law.
As agreed with your office, this report presents information on the
following topics:
* Restoration of gun ownership rights, including any differences among
the states in how such rights may be restored to persons with criminal
convictions and the extent to which persons who had their gun ownership
rights restored subsequently committed new crimes.
* Handgun concealed carry permits, including the extent to which
concealed carry permits exempt permit holders from a NICS background
check when purchasing firearms, any differences among the states in how
they issue permits and monitor permit holders, and what actions the
states take to revoke permits if the permit holders subsequently commit
new crimes.
* Domestic violence misdemeanor convictions, including any differences
among the states in how they ensure that domestic violence convictions
in state criminal history repositories are accessible to NICS, and the
extent to which persons convicted of domestic violence purchased
firearms without being identified by NICS.
To address these issues, we obtained overview information from federal
agencies with firearms-related research experience and/or law
enforcement responsibilities”the Bureau of Justice Statistics (BJS); the
Bureau of Alcohol, Tobacco and Firearms (ATF); and the FBI. For more
detailed or specific analyses, as agreed with your office, we focused
our work on six states”California, Florida, Massachusetts, Michigan,
Texas, and Utah”which we judgmentally selected to illustrate a variety
of applicable state laws and procedures. In visiting these states, we
discussed applicable laws and procedures with responsible state and
local officials and reviewed relevant statistics and other firearms-
related information. We performed our work between June 2001 and May
2002, in accordance with generally accepted government auditing
standards. Appendix I presents more information about our objectives,
scope, and methodology.
Results in Brief:
Each of the six states we visited offered at least one mechanism by
which individuals who were ineligible to possess firearms because of a
criminal conviction could have those rights restored. Of the four types
of restoration mechanisms recognized under federal law”executive pardon,
record expungement, conviction set-aside, and restoration of civil
rights”pardons were universally available in all of the six states,
while expungements were available only in Utah. The six states‘
criteria for restoration typically require a certain waiting period
before application for relief, and persons convicted of some prior
offenses are not eligible for restoration. Typically, individuals must
petition the state or a county agency for relief (as in Florida and
Michigan, for example), but some states”such as California and
Massachusetts”automatically restore certain firearms rights lost after
completion of sentence. On the basis of a review of limited data that
were available from the selected states, we found that few persons who
had their gun ownership rights restored were convicted of subsequent
crimes.
In 26 states, ATF has determined that a concealed carry permit may
exempt the permit holder from a NICS background check when purchasing a
firearm. As such, it is important that permit applicants be carefully
screened and permit holders monitored to ensure they are eligible to
possess firearms. The six states we visited screened permit applicants
using federal and state criminal databases, monitored permit holders to
ensure continued eligibility using automated and manual processes, and
revoked permits when permit holders became ineligible to carry a
concealed firearm. Based on a review of limited data that were
available from the six states, the number of permits revoked ranged from
0.02 percent of permits issued (in Michigan) to 2.3 percent of permits
issued (in Massachusetts). However, only two states”California and
Massachusetts”took steps to recover revoked permits, and only one
state”Massachusetts”had penalties available against persons who failed
to voluntarily surrender their permits. In Florida and Texas”two states
with NICS-exempt permit holders”state data show that over 3,200 permits
were revoked after permit holders committed criminal offenses or became
otherwise ineligible to carry a concealed firearm. However, state
officials acknowledged they did not recover all revoked permits and,
moreover, had no authority to enforce recovery of revoked permits. In
these states, permit holders who became ineligible to possess firearms
could have used their revoked permits to purchase firearms without a
NICS background check. In contrast to Florida and Texas, Utah”a third
state with NICS-exempt permit holders”requires gun dealers to verify the
validity of all such permits before approving an NICS-exempt gun
purchase, thereby preventing ineligible persons from using a revoked
concealed carry permit to purchase firearms.
The six states we visited used various approaches to help make domestic
violence misdemeanor convictions easier to identify in criminal history
records”for example, by enacting domestic violence criminal statutes and
flagging domestic violence offenses in their criminal history records.
Despite these efforts, in the first 3 years of NICS operations, over
2,800 domestic violence offenders were able to purchase firearms
without being identified by NICS. Moreover, almost 26 percent of NICS
firearm-retrieval actions initiated by the FBI involved domestic
violence offenders, even though overall this prohibiting category made
up only about 14 percent of all NICS denials. [Footnote 2] Various
factors make it difficult to identify domestic violence misdemeanor
offenses in a timely manner. For example, while states continue to work
to automate and improve the overall quality and accessibility of
criminal history records, this process has been ongoing since the early
1990s and is still incomplete. Also, domestic violence offenses may not
be clearly identified in criminal databases, and the complex federal
definition of domestic violence misdemeanor requires obtaining
information that may not be immediately available in the state criminal
history record. Moreover, allowing firearms sales to proceed after 3
business days when the outcome of the NICS check is unresolved
contributes to the difficulty in preventing domestic violence offenders
from purchasing firearms. If federal law allowed more than 3 days”up to
30 days, for example”to research these types of delayed NICS background
checks, the number of firearm-retrieval actions during the first 3
years of NICS operations could have been reduced by over 50 percent.
And, allowing more time to research these delayed transactions would
have affected a relatively small percentage of all NICS background
checks.
This report includes a recommendation (with respect to concealed carry
permits) and a matter for congressional consideration (with respect to
domestic violence convictions) to help minimize the number of ineligible
persons who purchase firearms under NICS. In commenting on a draft of
this report, Justice did not specifically address the recommendation or
the matter for congressional consideration. Rather, Justice provided
information about its efforts to help states improve the completeness
and accuracy of criminal history records, including those relating to
domestic violence. In commenting on behalf of Treasury, ATF generally
agreed with our recommendation on concealed carry permits, but noted it
would first need to examine the extent to which there is a problem and
then consider options for how best to address the issue.
Background:
Effective November 30, 1998, under the Brady Handgun Violence
Prevention Act (Brady Act), [Footnote 3] licensed gun dealers are
required to obtain background checks on purchasers before transferring
(i.e., selling) a firearm. These background checks generally are to be
conducted using NICS, a computerized system which is managed by the
FBI. Under NICS, firearms are not to be transferred until a background
check determines that the transfer will not violate applicable federal
and state laws.
However, if the background check is not completed within 3 business
days, the transfer is allowed to proceed by default.
A NICS background check provides an automated search of criminal and
noncriminal records”including records in both state and national
databases”to determine a person‘s eligibility to purchase a firearm.
Specifically, a NICS check queries the following three information
sources: (1) the National Crime Information Center, which provides
access to fugitive arrest warrants and protective orders and
information about deported felons; (2) the Interstate Identification
Index, an index-pointer system that provides access to state criminal
history records and FBI criminal history databases; [Footnote 4] and
(3) the NICS Index, which maintains records about other persons‘
ineligible to possess firearms, including mental defectives, illegal
and unlawful aliens, and persons dishonorably discharged from the
military. In practice, however, most NICS decisions about eligibility
to purchase firearms are based on state criminal history records.
During the first 3 years of NICS operations, over 90 percent of all
firearms purchase denials were due to a disqualifying criminal history”
primarily felony convictions (64 percent) and domestic violence
misdemeanor convictions (14 percent). Because the vast majority”about
95 percent”of all criminal history records are state records, the
capability of NICS to effectively screen firearms purchasers depends
largely on the ability to access and interpret these state records.
As part of interpreting state criminal history records, NICS background
check examiners consider post-conviction actions that may affect gun
ownership rights. [Footnote 5] For example, persons prohibited from
possessing firearms due to state criminal convictions may subsequently
apply to the states for relief from these disabilities, and state
actions to provide such relief may be recognized under federal law as
restoring gun ownership rights. [Footnote 6] This avenue of relief
arises out of the meaning of the term ’conviction,“ which is found
within the federal definitions of felony and domestic violence
misdemeanor. [Footnote 7] Federal firearms law generally provides that
a conviction will not be considered for purposes of determining
firearms eligibility if the conviction ’has been expunged, or set aside
or [is an offense] for which a person has been pardoned or has had
civil rights restored ...unless such pardon, expungement, or
restoration of civil rights expressly provides that the person may not
... possess, or receive firearms.“ Prior to October 1992, relief from
firearms disabilities imposed by federal laws could be granted, based
on a petition to the Treasury Department, under provisions enacted at
18 U.S.C. § 925(c). However, beginning with the fiscal year 1993
Treasury appropriations act, [Footnote 8] Congress has prohibited
Treasury from expending any appropriated funds to act upon such
applications for relief.
The Brady Act, in general, provides that any transaction in which a
person presents to a licensed gun dealer a valid state permit that
allows the purchaser to possess or acquire a firearm is exempt from a
NICS check when purchasing firearms. Specifically, a firearms purchase
is exempt from NICS if the purchaser presents a state permit that (1)
allows the permit holder to possess or acquire a firearm and (2) was
issued not more than 5 years earlier by the state in which the transfer
is to take place. NICS regulations specify further that the purchaser
must present a valid permit that was issued only after verifying that
the permit holder was not ineligible to possess firearms under federal,
state, and local law. In addition, after November 30, 1998, permits
would qualify as exempt only if the information available to the state
authority that issued the permit included NICS. [Footnote 9] In
developing the NICS regulations, ATF concluded that a ’permit to
possess“ a firearm would include a permit to carry concealed weapons.
Thus, if a concealed carry permit meets the criteria described above,
the permit holder would be exempt from a NICS background check when
purchasing firearms, unless state law otherwise required such a check.
As noted previously, NICS denials are based largely on criminal history
records”not only felonies but certain misdemeanors as well. Most
notably, in the so-called Lautenberg amendment, Congress banned the
possession of firearms by individuals convicted of a misdemeanor crime
of domestic violence. [Footnote 10] As defined in the law, a domestic
violence misdemeanor involves the use or attempted use of physical
force or the threatened use of a deadly weapon by any of the following:
a current or former spouse, parent, or guardian of the victim; a person
with whom the victim shares a child in common; a person who is
cohabiting with or has cohabited with the victim as a spouse, parent,
or guardian; or a person similarly situated to a spouse, parent, or
guardian of the victim. Implementing regulations provide that such
definition includes any federal, state, or local misdemeanor that meets
the criteria, irrespective of whether it is defined or labeled as
’domestic violence.“ Federal law further provides that a person
generally is not considered convicted of a domestic violence
misdemeanor under the following circumstances: (1) if the person was
not represented at trial by counsel (unless he or she waived the right
to counsel); (2) if the person was entitled to a jury trial, but the
case was not tried by jury (unless he or she waived the right to a jury
trial); or (3) if the conviction was expunged or set-aside, or the
person was pardoned or had civil rights restored; and the person is not
otherwise prohibited from possessing firearms.
Appendix II presents more information about the categories of persons
ineligible to purchase firearms and the extent to which criminal history
records are used to determine an individual‘s eligibility to purchase
firearms. Also, more details on NICS implementation and operation may
be found in our February and April 2000 reports. [Footnote 11]
Restoration of Gun Ownership Rights:
As mentioned previously, while federal restoration of firearms rights
is no longer readily available, persons who are ineligible to possess
firearms because of state criminal convictions may be able to have
their gun ownership rights restored by the state. [Footnote 12]
Following a state restoration action, such persons would generally be
recognized by the states and the federal government as once again being
eligible to possess firearms. Each of the four restoration methods
recognized in federal firearms law can have a different effect on the
underlying disqualifying record and the extent to which rights are
restored. For example:
* Pardon – A pardon is, in general, an executive action that typically
mitigates the punishment the law demands for an offense and restores
any or all of the rights and privileges forfeited on account of the
offense. Generally, the original criminal record is to be retained, with
the pardon being noted on the record.
* Expungement – An expungement is a procedure in which the record
of a criminal offense or conviction is typically destroyed or sealed.
For example, arrest records may be expunged where the arrested person is
acquitted at trial or the arrest is found to be unlawful; or expungement
may be allowed after the passage of time. In some cases, expunged
records may be retained and used by the state for certain limited
purposes.
* Set-aside – A set-aside is an action that annuls or revokes a
previously issued court judgment or order”such as a criminal
conviction. To set aside a judgment is to make it void or of no effect
and to deprive it of all force and operation as to future transactions.
Set-asides are generally noted in the criminal record, which is
retained.
* Restoration of civil rights – States may have procedures to restore
any civil rights or other privileges that were lost upon a criminal
conviction. These rights may be restored automatically upon completion
of sentence or the passage of time; or restoration of rights may
require an administrative or judicial process. Generally, restorations
of civil rights are noted in the criminal record, which is retained.
Differences among Selected States‘ Restoration Laws and Procedures:
Each of the six states we visited provided for one or more of the four
methods described above for restoring gun ownership rights lost as a
result of a state criminal conviction. Differences among the states
primarily involved the number of such methods available, the conditions
under which a person would be eligible for relief, and the process of
applying for and receiving relief. Pardons were universally available
in all six of the states we visited, while expungements were readily
available in only one state”Utah. The states‘ criteria for restoration
typically required a certain waiting period before being eligible to
apply for relief. In Florida, for example, applicants had to wait 10
years following completion of sentence to apply for a full pardon or 8
years to apply for a restoration of firearms authority. Also, persons
convicted of some prior offenses”felonies involving a firearm, for
example, in California”were not eligible for any restoration at all. In
some states”such as Florida and Michigan”certain individuals are
required to petition the state or a county agency for relief; other
states”such as California and Massachusetts”have laws that
automatically restore certain lost firearms rights after completion of
sentence.
Appendix III presents more information about the states‘ laws and
procedures dealing with restoration of gun ownership rights.
Crimes Committed by Persons Whose Gun Ownership Rights Were Restored:
To determine if persons who had their gun ownership rights restored
subsequently committed crimes, we obtained and analyzed available data
on restoration actions in the six selected states. Our analysis was
largely dependent on the availability of state data for each method of
restoration and, as such, was generally based on limited data or data
on small numbers of cases. On the basis of our limited review, we found
that few persons whose gun ownership rights had been restored by the
states were later convicted of additional crimes. Summary information
for the six states is as follows. (See table 1.)
* In California, 71 persons received pardons between 1990 and 2000 that
restored gun ownership rights. Of these, none had subsequently been
convicted of a crime.
* In Florida, 79 persons received pardons (78 full pardons, 1
conditional pardon) between 1999 and 2001 that restored gun ownership
rights. Of these, 1 person was subsequently convicted of a felony. In
addition, 1 other person was arrested, but the record did not reflect
whether the charge was a felony or a misdemeanor and no disposition was
found. Another 51 persons received restorations of firearms authority
between 1999 and 2001. Of these, none was subsequently convicted of a
crime.
* In Massachusetts, 49 persons received pardons between 1990 and 2000
that restored gun ownership rights. Of these, none was subsequently
convicted of a crime.
* In Michigan, 26 persons received pardons between 1969 and 1995 that
restored gun ownership rights. Our review of 9 of these individuals
found that none had subsequently been convicted of a crime. Another
2,006 persons had convictions set aside during 2000 and 2001. Our
review of 200 of these individuals found that 1 person had subsequently
been convicted of misdemeanor domestic violence; 1 other person was
arrested and charged with misdemeanor domestic violence, but no
disposition was found. Also, 378 persons received restorations of gun
ownership rights by county gun licensing boards between 1992 and
2001. Our review of 38 of these individuals found that 1 person was
subsequently convicted of a crime”in this case, a misdemeanor.
* In Texas, 54 persons received pardons between 1992 and 2001 that
restored gun ownership rights. Our review of 35 of these individuals
found that none had subsequently been convicted of a crime. However,
3 of the individuals had subsequently been arrested”2 of the arrests
involved misdemeanor charges and 1 involved felony charges. No
dispositions were found for any of these cases.
* In Utah, 7 persons received pardons between 1990 and 2001 that
restored gun ownership rights. Our review of 6 of these individuals
found that none had subsequently been convicted of a crime.
Table 1: Crimes Committed by Persons after Their Gun Ownership Rights
Were Restored in Selected States:
States and type of restoration action: California: Pardon;
Time period: 1/1/90-12/31/00;
Restoration of gun ownership rights: Total number of actions: 71;
Restoration of gun ownership rights: Number reviewed by GAO: 71;
Number of subsequent convictions: 0.
States and type of restoration action: Florida: Pardon;
Time period: 7/1/99-6/30/01;
Restoration of gun ownership rights: Total number of actions: 79;
Restoration of gun ownership rights: Number reviewed by GAO: 79;
Number of subsequent convictions: 1.
States and type of restoration action: Florida: Restoration;
Time period: 7/1/99-6/30/01;
Restoration of gun ownership rights: Total number of actions: 51;
Restoration of gun ownership rights: Number reviewed by GAO: 51;
Number of subsequent convictions: 0.
States and type of restoration action: Massachusetts: Pardon;
Time period: 1/1/90-12/31/00;
Restoration of gun ownership rights: Total number of actions: 49;
Restoration of gun ownership rights: Number reviewed by GAO: 49;
Number of subsequent convictions: 0.
States and type of restoration action: Michigan: Pardon;
Time period: 3/7/69-7/12/95;
Restoration of gun ownership rights: Total number of actions: 26;
Restoration of gun ownership rights: Number reviewed by GAO: 9;
Number of subsequent convictions: 0.
States and type of restoration action: Michigan: Set-aside;
Time period: 9/1/00-11/30/01;
Restoration of gun ownership rights: Total number of actions: 2,006;
Restoration of gun ownership rights: Number reviewed by GAO: 200;
Number of subsequent convictions: 1.
States and type of restoration action: Michigan: Restoration;
Time period: 10/13/92-6/30/01;
Restoration of gun ownership rights: Total number of actions: 378;
Restoration of gun ownership rights: Number reviewed by GAO: 38;
Number of subsequent convictions: 1.
States and type of restoration action: Texas: Pardon;
Time period: 1/1/92-12/31/01;
Restoration of gun ownership rights: Total number of actions: 54;
Restoration of gun ownership rights: Number reviewed by GAO: 35;
Number of subsequent convictions: 0.
States and type of restoration action: Utah: Pardon;
Time period: 1/1/90-12/31/01;
Restoration of gun ownership rights: Total number of actions: 7;
Restoration of gun ownership rights: Number reviewed by GAO: 6; 0.
Number of subsequent convictions:
States and type of restoration action: Utah: Expungement;
Time period: 1/1/90-3/31/01;
Restoration of gun ownership rights: Total number of actions: 1,623;
Restoration of gun ownership rights: Number reviewed by GAO: [A];
Number of subsequent convictions: [A].
[A] Action provided for by state, but data not available for review.
Source: GAO analysis of state data and discussions with state
officials. Appendix I provides more details about the state data
reviewed and our analysis.
[End of table]
As mentioned previously, our analysis was largely dependent on the
availability of state data for each method of restoration and, as such,
was generally based on limited data or data on small numbers of cases.
In some cases, statewide data were not available, and in other cases
only certain time periods were covered. Where selected cases were
analyzed”in Michigan, Texas, and Utah”the cases we reviewed were not
randomly generated. As a result, this analysis is intended solely to
illustrate what we found from the data we reviewed in each of the six
states, and the results cannot be generalized beyond the timeframes and
locations from which the data were collected.
Handgun Concealed Carry Permits:
ATF has periodically reviewed each state‘s concealed carry permit
program to determine whether it meets the criteria laid out in the Brady
Act and NICS regulations for exempting permit holders from NICS
background checks. [Footnote 13] As indicated below, as of January
2002, ATF determined that 26 states issued concealed carry permits that
qualify to exempt permit holders from NICS background checks when
purchasing firearms:
* In 16 states, all concealed carry permit holders are exempt from NICS
background checks. Texas and Utah fall into this category.
* In 8 states, only certain permits issued before the implementation of
NICS exempt permit holders from NICS background checks. In these
states, permits issued after NICS was implemented (Nov. 30, 1998) do
not qualify as exempt. Permits issued prior to NICS are ’grandfathered“
as exempt because, under interim provisions of the Brady Act, ATF had
recognized these permits as a valid alternative to the interim Brady
background check. Florida and Massachusetts fall into this category.
* In 2 states, only grandfathered permits were initially considered
exempt. However, these states later made changes to their permit
programs, bringing them into compliance with NICS regulations, and
permits issued after the date of these program changes are now exempt
from NICS.
In the other 24 states, no concealed carry permits are exempt from NICS
background checks. In some cases, ATF has determined the state program
does not qualify as exempt under NICS regulations (Michigan); in other
cases, the permits do not qualify as exempt under state law
(California).
Differences among Selected States‘ Procedures for Issuing and
Monitoring Concealed Carry Permits:
The six states we visited had several similarities in their background
screening and processing of concealed carry permit applicants. In each
state, for example, permit applicants were subject to a screening
process involving a review of criminal justice and other data in
federal and state databases. This screening process included both name-
based and fingerprint-based checks performed by the states and the FBI.
In addition to federal and state sources of data, Texas and Michigan
routinely reviewed local records as part of the screening process. Some
of the states were limited in the amount of time allowed to complete
the background check and issue or deny the concealed carry permit. In
Florida, a concealed carry permit must be issued within 90 days unless
the applicant is determined to be ineligible or has a potentially
disqualifying arrest without disposition information.
In addition to screening concealed carry permit applicants, the states
monitored active permit holders to determine if and when any of them
became ineligible to have a permit. For example, five of the six states
(all except Massachusetts) had formal mechanisms in place for detecting
whether permits holders had committed a disqualifying criminal offense.
These methods included electronic matching of permit holders‘ names
against state criminal records databases (Utah and Florida), as well as
manual notifications to the state‘s permit authority by the courts when
a concealed carry permit holder is convicted of a crime (Michigan).
Once a permit holder is determined to be ineligible, all of the states
have procedures in place for revoking the permit. But in only two
states”California and Massachusetts”do authorities actively seek out
permit holders and seize revoked permits if the individuals do not
surrender their permits to the issuing agency.
Appendix IV presents more information about the states‘ laws and
procedures involving issuing, monitoring, and revoking concealed carry
permits.
Number of Concealed Carry Permits Revoked and Reasons for Revocation:
The six states we visited reported that some concealed carry permit
holders subsequently committed crimes that resulted in permit
revocation, as shown in table 2. When compared to the total number of
permits issued, the revocation rate of permit holders ranged from 0.02
percent in Michigan to 2.3 percent in Massachusetts”with the two ’may-
issue“ states (California and Massachusetts) revoking a higher
percentage of permits than the four ’shall-issue“ states (Florida,
Michigan, Texas, and Utah). [Footnote 14] In the states where data on
offense type were available (Michigan, Texas, and Utah), the vast
majority of offenses that led to revocation were misdemeanors. Some
states (Florida, Texas, and Utah) also reported a significant number of
revocations due other disqualifying factors”such as mental disability
(in Florida and Utah) and delinquent taxes (in Texas). Only Florida and
Utah tracked the number of revocations that involved firearms”
specifically, firearms-related offenses accounted for about 9 percent
(145 out of 1,593) of Florida‘s revocations and about 7 percent (39 out
of 584) of Utah‘s revocations.
Table 2: Reasons for Concealed Carry Permit Revocations in Selected
States:
States and type of permit: California (may-issue);
Time period covered[B]: 1/1/00-12/31/00;
Permits issued: 1,890;
Reasons for permit revocation[A]: Felony offense: [Empty];
Reasons for permit revocation[A]: Misdemeanor offense: 42;
Reasons for permit revocation[A]: Other disqualifier: [Empty];
Percent of issued permits revoked: 2.2%.
States and type of permit: Florida (shall-issue);
Time period covered[B]: 10/1/87-12/31/01;
Permits issued: 785,563;
Reasons for permit revocation[A]: Felony offense: [Empty];
Reasons for permit revocation[A]: Misdemeanor offense: 1,430[C];
Reasons for permit revocation[A]: Other disqualifier: 163;
Percent of issued permits revoked: 0.2%.
States and type of permit: Massachusetts (may-issue);
Time period covered[B]: 1/1/99-12/31/01;
Permits issued: 177,572;
Reasons for permit revocation[A]: Felony offense: [Empty];
Reasons for permit revocation[A]: Misdemeanor offense: 4,046;
Reasons for permit revocation[A]: Other disqualifier: [Empty];
Percent of issued permits revoked: 2.3%.
States and type of permit: Michigan (shall-issue);
Time period covered[B]: 7/1/01-3/11/02;
Permits issued: 34,712;
Reasons for permit revocation[A]: Felony offense: [Empty];
Reasons for permit revocation[A]: Misdemeanor offense: 9;
Reasons for permit revocation[A]: Other disqualifier: [Empty];
Percent of issued permits revoked: 0.02%;
States and type of permit: Texas (shall-issue);
Time period covered[B]: 1/6/96-10/25/01;
Permits issued: 270,971'
Reasons for permit revocation[A]: Felony offense: 187;
Reasons for permit revocation[A]: Misdemeanor offense: 926;
Reasons for permit revocation[A]: Other disqualifier: 546;
Percent of issued permits revoked: 0.6%.
States and type of permit: Utah (shall-issue);
Time period covered[B]: 1/1/94-12/31/01;
Permits issued: 46,148;
Reasons for permit revocation[A]: Felony offense: 70;
Reasons for permit revocation[A]: Misdemeanor offense: 431;
Reasons for permit revocation[A]: Other disqualifier: 83;
Percent of issued permits revoked: 1.3%.
[A] State officials in California, Florida, Massachusetts, and Michigan
could not separate revocation offenses into felonies and misdemeanors.
They are categorized here as misdemeanors for purposes of general
analysis.
[B] Except for slight differences in Massachusetts and Texas, the time
periods in this column correspond directly with the data under ’permits
issued“ and ’reasons for permit revocation“ data. In Massachusetts, the
data for permits issued is from the time period 10/10/98 to 2/8/02. In
Texas, the data for permits issued is from the time period 1/1/96 to
11/30/01.
[C] Florida also reported an additional 461 revocations that resulted
from crimes committed prior to permit issuance, which the state had not
discovered during the permit application background check.
Source: GAO summary of data provided by state officials.
[End of table]
Revoked Permits Could Be Used by Ineligible Persons to Purchase
Firearms:
More significant than the number of revocations, some states had no
assurance of recovering permits from permit holders after revocation.
As a result, revoked permits could be used by ineligible persons to
purchase firearms without a NICS background check. As mentioned
previously, among the six states, only California and Massachusetts
actively seek out permit holders to recover revoked permits that have
not been voluntarily surrendered. In addition, only Massachusetts has
criminal penalties available for use against permit holders who do not
surrender revoked permit. Regarding the other states, we noted the
following issues regarding revoked permits:
* In Florida”a state where grandfathered permits exempt permit
holders from NICS background checks when purchasing firearms”state
officials acknowledged they did not recover all revoked permits and the
state had no civil or criminal authority to force the surrender of
revoked permits. Between October 1987 and December 2001, Florida
revoked 1,593 permits, the vast majority because of crimes committed
by permit holders after the permits were issued. Another 461 permits
were revoked because of crimes committed before the permits were
issued. Because permits issued prior to the implementation of NICS
exempted permit holders from NICS background checks, permits that were
revoked and not recovered could have been used by ineligible permit
holders to purchase firearms without a NICS check. To illustrate the
extent to which revoked permits are not recovered by the state, Florida
officials provided data on permits revoked in fiscal year 2001 as a
result of crimes committed before the permits were issued. Of the 18
permits that were revoked for that reason, state officials told us that
7 of the 18 permits were not recovered.
* In Texas”a state where all concealed carry permit holders are exempt
from a NICS check when purchasing firearms”state officials also
acknowledged they do not recover all revoked permits and have no civil
or criminal authority to force the surrender of revoked permits. State
officials estimated that about 2 out of every 10 revoked permits are
not voluntarily surrendered back to the state. Thus, based on the total
number of revocations reported (1,659) between January 1996 and October
2001, this represents an estimated 332 revoked permits that were not
recovered upon revocation. These ineligible permit holders could have
used their revoked permits to purchase firearms without having a NICS
background check.
* Two other states”California and Utah”have laws or procedures in place
that prevent persons from using revoked permits to purchase firearms
without a NICS background check. In California, for example, state law
requires concealed carry permit holders to have a separate NICS
background check when purchasing a firearm, thus preventing ineligible
permit holders from purchasing firearms regardless of the status of
their permit. Utah”another NICS-exempt state for permit
holders”requires gun dealers to verify the validity of a concealed carry
permit by contacting the state issuing authority before approving a
NICS-exempt gun purchase. Rather than requiring another background
check at the time of purchase, this verification simply requires gun
dealers to visually inspect the permit, and then call the state‘s
Department of Public Safety to verify that the permit is still
valid”that is, that it has not been suspended or revoked. According to
Utah officials, this process helps the state monitor the legal status
of permit holders, and it prevents persons from using revoked permits to
purchase firearms without a NICS background check.
According to ATF officials, after the Brady Act was passed in 1993, the
states became responsible for conducting firearms purchase background
checks. Because some states already required permits and background
checks in order to purchase firearms, it seemed redundant to require
another identical state background check just to comply with Brady. As a
result, the law exempted permit holders from having a separate
background check when purchasing firearms. When NICS became operational
in 1998, the FBI and the states began sharing responsibility for
firearms background checks, but the permit exemption continued based on
criteria laid out in the Brady Act and NICS regulations for exempting
permit holders from NICS background checks. Even so, ATF officials
noted that some states require their concealed carry permit holders to
undergo a separate background check at the time they make a firearms
purchase. The officials went on to say that permit holders may sometimes
commit crimes that disqualify them from possessing firearms, although
the state has not yet taken action to revoke the permits. In such
instances, a NICS background check at the time of purchase serves to
identify permit holders who may be disqualified from purchasing a
firearm and prevent those persons from obtaining firearms simply by
presenting their permits.
Regarding Utah‘s permit-verification process that requires gun dealers
to verify the current validity of concealed carry permits, ATF
officials told us it is not clear whether ATF could require all states
to have a similar process. Generally, ATF can set regulations for
states to meet as prerequisites to exempting their permit holders from
NICS background checks, provided these regulations are consistent with
congressional intent. Among other things, ATF regulations already
specify that exempt permits must be valid, issued no more than 5 years
earlier, and must be issued only after verifying that the permit holder
was not ineligible to possess firearms under federal, state, and local
law. Regarding an additional regulation requiring point-of-purchase
verification of the validity of exempt permits, ATF officials noted
that this could raise concerns as an unfunded mandate, particularly in
those states that do not participate in NICS and have no existing
infrastructure at state agencies or licensed gun dealers for performing
such verification. Nonetheless, ATF would consider such a regulation if
there was compelling evidence to suggest that a problem did exist
(e.g., data indicating that ineligible persons used revoked permits to
purchase firearms without a NICS check), and that any new regulation
was consistent with congressional intent under the Brady Act.
Domestic Violence Misdemeanor Convictions:
The six states we visited used various approaches to help ensure that
domestic violence misdemeanor convictions were identified in state
criminal history repositories and were accessible to NICS. These
approaches included establishing a specific domestic violence offense in
the state‘s criminal code, defining domestic violence in other state
statutes, enacting domestic violence penalty enhancement statutes, and
flagging domestic violence offenses in the criminal records. For
example, two of the states we visited”California and Michigan”had
enacted specific criminal offenses related to domestic violence, which
clearly differentiates these offenses from other misdemeanor assaults.
Four states”California, Michigan, Texas, and Utah”had amended general
criminal statutes (such as assault or battery) to create a separate
penalty enhancement when the circumstances involved a family member or
other relation. Florida, Michigan, and Utah also ’flag“ domestic
violence offenses by notating the criminal record to clearly identify
the offenses as domestic violence-related. Only Massachusetts had no
mechanism for specifically identifying domestic violence offenses in
the state‘s criminal history records.
Appendix V presents more information about the states‘ laws and
procedures to help ensure that domestic violence convictions are
accessible to NICS.
Some Domestic Violence Offenders Purchased Firearms under NICS:
From November 1998 through September 2001, ATF data indicate that the
agency received 10,945 referrals from the FBI requesting retrieval of
firearms that had been sold to ineligible persons. [Footnote 15] These
firearm-retrieval actions were the result of NICS background checks
that could not be completed by the FBI within the 3 business days
allowed under federal law. When this occurs, the sale is allowed to
proceed”that is, the gun dealer may legally transfer the firearm
without a response from the FBI as to the purchaser‘s eligibility. The
FBI continues to research these transactions, even after 3 days have
passed, to ensure that the purchasers were not prohibited individuals.
Regarding the referrals noted above, after the firearms were legally
transferred the FBI discovered that the purchasers should have been
denied. Once the FBI made these determinations, ATF was notified so
steps could be taken to investigate the transactions, retrieve the
firearms, and refer any appropriate cases for prosecution.
As shown in table 3, about 26 percent of the firearm-retrieval actions
referred to ATF during roughly the first 3 years of NICS were in the
prohibited category of domestic violence misdemeanor. By comparison, in
looking at all FBI NICS denials during approximately this same period,
[Footnote 16] the category of domestic violence misdemeanor made up
only about 14 percent of the total number of NICS denials. As shown by
this comparison, the percentage of NICS firearm-retrieval actions
involving domestic violence misdemeanors was disproportionately
large”almost double”when compared with the percentage of all NICS
denials that involved domestic violence misdemeanors. These
transactions create concerns because they represent domestic violence
offenders who were allowed to purchase firearms and who may pose risks
to public safety.
Table 3: Firearm-Retrieval Actions Referred to ATF Compared with Total
FBI NICS Denials – by Prohibited Category:
Prohibited category: Fugitive warrant, 18 U.S.C. § 922(g)(2);
Firearm-retrieval actions referred to ATF (Nov. 30, 1998 – Sept. 30,
2001): Total: 600;
Firearm-retrieval actions referred to ATF (Nov. 30, 1998 – Sept. 30,
2001): Percent of total: 5.5%;
Total FBI NICS denials (Nov. 30, 1998 – Oct. 7, 2001): Total: 5,620;
Total FBI NICS denials (Nov. 30, 1998 – Oct. 7, 2001): Percent of
total: 2.8%.
Prohibited category: Mental defective, 18 U.S.C. § 922(g)(4);
Firearm-retrieval actions referred to ATF (Nov. 30, 1998 – Sept. 30,
2001): Total: 100;
Firearm-retrieval actions referred to ATF (Nov. 30, 1998 – Sept. 30,
2001): Percent of total: 0.9%;
Total FBI NICS denials (Nov. 30, 1998 – Oct. 7, 2001): Total: 716;
Total FBI NICS denials (Nov. 30, 1998 – Oct. 7, 2001): Percent of
total: 0.4%.
Prohibited category: Domestic violence restraining order, 18 U.S.C. §
922(g)(8);
Firearm-retrieval actions referred to ATF (Nov. 30, 1998 – Sept. 30,
2001): Total: 132;
Firearm-retrieval actions referred to ATF (Nov. 30, 1998 – Sept. 30,
2001): Percent of total: 1.2%;
Total FBI NICS denials (Nov. 30, 1998 – Oct. 7, 2001): Total: 7,647;
Total FBI NICS denials (Nov. 30, 1998 – Oct. 7, 2001): Percent of
total: 3.8%.
Prohibited category: Domestic violence misdemeanor, 18 U.S.C. §
922(g)(9);
Firearm-retrieval actions referred to ATF (Nov. 30, 1998 – Sept. 30,
2001): Total: 2,815;
Firearm-retrieval actions referred to ATF (Nov. 30, 1998 – Sept. 30,
2001): Percent of total: 25.7%;
Total FBI NICS denials (Nov. 30, 1998 – Oct. 7, 2001): Total: 27,845;
Total FBI NICS denials (Nov. 30, 1998 – Oct. 7, 2001): Percent of
total: 13.9%.
Prohibited category: Other prohibited categories[A];
Firearm-retrieval actions referred to ATF (Nov. 30, 1998 – Sept. 30,
2001): Total: 7,298;
Firearm-retrieval actions referred to ATF (Nov. 30, 1998 – Sept. 30,
2001): Percent of total: 66.7%;
Total FBI NICS denials (Nov. 30, 1998 – Oct. 7, 2001): Total: 157,892;
Total FBI NICS denials (Nov. 30, 1998 – Oct. 7, 2001): Percent of
total: 79.1%.
Prohibited category: Total;
Firearm-retrieval actions referred to ATF (Nov. 30, 1998 – Sept. 30,
2001): Total: 10,945[B];
Firearm-retrieval actions referred to ATF (Nov. 30, 1998 – Sept. 30,
2001): Percent of total: 100%;
Total FBI NICS denials (Nov. 30, 1998 – Oct. 7, 2001): Total: 199,720;
Total FBI NICS denials (Nov. 30, 1998 – Oct. 7, 2001): Percent of
total: 100%.
[A] ATF and FBI did not report sufficient detail to allow analysis of
the other prohibited categories.
[B] During this same time period, FBI data show that 11,847 firearm-
retrieval actions were referred to ATF. According to an ATF official,
the difference represents firearm-retrieval actions that were later
purged from ATF systems in June 2001 because the FBI had subsequently
overturned the underlying denials.
Source: GAO analysis of ATF and FBI NICS data.
[End of table]
It should be noted that the actual number of domestic violence offenders
who purchased firearms under NICS may be larger than shown in table 3.
We previously reported that roughly 1.7 percent of NICS background
checks could not be completed within 21 days because the FBI was not
able to obtain sufficient information to verify the purchaser‘s
eligibility. [Footnote 17] Based on the number of NICS background
checks processed by the FBI through fiscal year 2001, an estimated
204,000 transactions would have fallen into this unresolved category.
Even if only 1.6 percent (the average NICS denial rate for this time
period) of these transactions involved prohibited persons, this would
represent an estimated 3,200 additional prohibited persons who
purchased firearms without being identified by NICS”over 800 of which
would have been domestic violence offenders (based on the percentage of
domestic violence misdemeanor firearm-retrieval actions shown in table
3). Furthermore, this number could be much higher, because the FBI has
previously reported that delayed transactions are much more likely to
involve prohibited persons than the average NICS checks.
According to FBI officials, researching domestic violence offenses can
often take more than the 3 days allowed under the Brady Act. In a
typical transaction, the NICS background check identifies an arrest for
a misdemeanor assault but no matching disposition. The NICS examiner
must then go back”in some cases to original police reports”to verify
what happened and who was involved, in order to determine whether the
offense meets the federal criteria for domestic violence misdemeanor.
Furthermore, the information needed to confirm the conviction may not
be in the automated record, and manual research is then required. If the
offense was tried in a so-called court of non-record (e.g., a
magistrate or justice of the peace court), the case may not have been
reported to the state repository. Thus, the FBI may have to contact the
local court or the original arresting agency to document the outcome.
Barriers to the Timely Identification of Domestic Violence Convictions:
Various other factors contribute to the difficulty in identifying
domestic violence convictions within 3 business days and, thus,
preventing the associated firearm-retrieval actions. These factors
include (1) the overall accessibility and completeness of state
criminal history records, (2) the complex federal definition of
domestic violence misdemeanor, and (3) the difficulty in identifying
domestic violence offenses in the criminal history records.
Regarding the first factor, states are continuing to automate and
otherwise improve the completeness and accessibility of their criminal
history records. However, this process has been ongoing since the early
1990s and is still far from complete. For example, BJS recently
reported on the status of efforts to improve criminal history records
for background check purposes. [Footnote 18] According to the report:
* By mid-2001, a total of about 64 million records were held in state
criminal history repositories. However, approximately 7 million (about
11 percent) of these were manual records and, thus, not instantly
accessible to NICS.
* Of the remaining 57 million automated records, an estimated 16 million
records (28 percent) were not accessible through the Interstate
Identification Index for background check purposes. That is, these 16
million records were instantly accessible only to the state holding the
respective records.
* Of the 41 million records that were automated and accessible through
the Interstate Identification Index, the most recent BJS data indicate
that perhaps 37 percent may not be fully useful for an instant check
due to a lack of data on arrest dispositions.
To assist BJS in reporting on the completeness of criminal records, the
FBI analyzed a sample of delayed NICS background checks that resulted
from an open arrest with no disposition. Overall, the FBI found that
these delayed transactions typically involved older arrest
records”mostly ranging from over 5 years old to more than 15 years old.
Specifically, more than 75 percent of the open arrests had occurred
before 1995 and about 50 percent were found to have occurred before
1984. [Footnote 19]
A second factor”the complex federal definition of domestic violence
misdemeanor”further increases the difficulty of using state criminal
history records to determine if an individual is ineligible to purchase
firearms. As mentioned previously, FBI NICS officials acknowledged that
researching domestic violence misdemeanor convictions often involves
manual research using original court records”and possibly arresting
agency reports”to verify what happened and who was involved, in order
to determine whether the offense meets the federal criteria for domestic
violence misdemeanor. These same issues were previously raised in
congressional testimony following passage of the Lautenberg amendment.
According to a representative of the research consortium SEARCH:
[Footnote 20]
’Even in states where the criminal history record on its face will
indicate ... an element of domestic violence, research ... will still
be necessary to determine if the offender was represented by counsel—or
had the opportunity for a jury trial [before firearms eligibility can
be determined]. Because this type of information is not always recorded
in original records of entry, it may simply never be possible in many
states to obtain this information or to make this determination.“
The SEARCH representative concluded that there may be a certain, but
unknown, percentage of misdemeanor convictions that resist any attempt
to determine whether they meet the Lautenberg test, because records are
not available or do not indicate whether the offender had access to
counsel or the right to a jury trial.
A third complicating factor is that misdemeanor criminal history records
may not be clearly identified as domestic violence-related, thus
requiring additional”sometimes manual”research. As BJS noted in a
February 2000 report on improving criminal history records, [Footnote
21] identifying domestic violence misdemeanor convictions for purposes
of a firearms background check presents a unique challenge. Domestic
violence incidents have historically been categorized simply as
assaults, making it difficult to segregate them from other criminal
history records. Further, where additional research is necessary,
misdemeanor criminal records may be more difficult to track down than
felony records. In its recent report on the use and management of
criminal history records, [Footnote 22] BJS noted that most state
criminal repositories collect information only about the most serious
classes of misdemeanor offenses. And, the general lack of comprehensive
misdemeanor arrest and disposition data has previously been identified
as one of the major deficiencies in state criminal history record
systems.
In response to passage of the Lautenberg amendment, the FBI‘s automated
system for identifying persons with felony convictions was modified in
May 2001 so that domestic violence offenders (and other ineligible
persons) could be more readily identified. Under the new system, a
’flag“ can be set in the automated criminal history to indicate whether
an individual is disqualified from purchasing firearms (signified by
the letter D), cleared to purchase firearms (the letter C), or unknown
or pending status (the letter X). [Footnote 23] When a firearms
background check identifies a person with a disqualifying flag, the
transaction can be immediately denied with no additional research
required. Flags have historically been used to mark persons that have a
felony conviction in their criminal record. However, for purposes of
quickly identifying domestic violence misdemeanors, some questions
remain. For example, while most states flag some or all felony
convictions in their criminal history databases, only 19 states
currently participate in the FBI‘s new flagging system for identifying
domestic violence and other firearms disqualifiers. Also, as reported
in a 1997 study sponsored by the Bureau of Justice Assistance,
[Footnote 24] several state central repository officials expressed
concern over the reliability and consistency of flags set in criminal
history records, and one state official said he would not trust a flag
set by another state and would need to look at the offender‘s rap sheet
before determining the applicant‘s firearm eligibility. In Michigan,
for example, an FBI NICS audit found that felony flags were not always
removed from state criminal history records when individuals had their
firearms rights restored. The audit also concluded that certain
domestic violence offenses were flagged as disqualifying the individual
from purchasing firearms, even though the offenses did not meet the
criteria for disqualification.
Our Previous Observations on Delayed NICS Transactions:
In April 2000, we reported on the FBI‘s inability to complete certain
NICS background checks within the 3 days allowed under the Brady Act.
[Footnote 25] In our report, we presented to the Congress as a matter
for consideration three options for minimizing the number of these
transactions that occur”(1) improve state criminal history records; (2)
encourage states‘ participation in NICS; and (3) allow additional time
for certain NICS background checks. These three options bear further
discussion here in the context of preventing the sale of firearms to
domestic violence offenders. However, given the long-term nature of
improving state criminal records, and the reluctance of states to
conduct their own NICS background checks, the third option”amending the
Brady Act to allow more time to complete NICS background checks before
allowing firearms sales to proceed”would have a more immediate effect
on reducing the incidence of firearm-retrieval actions”including those
involving domestic violence offenders.
* Improve state criminal history records. The first option was to
continue providing grants to states for improving their criminal history
records. During fiscal years 1995 through 2001, the National Criminal
History Improvement Program (NCHIP) provided over $350 million in
grant funds to assist states to improve the quality and accessibility
of their criminal history records, in order to support the
implementation of NICS and enhance the effectiveness of NICS background
checks. Among the five program priorities for fiscal year 2002, three
directly relate to NICS: (1) establishing infrastructure to support the
full implementation of NICS, including full state participation in the
Interstate Identification Index; (2) supporting state court efforts to
improve the completeness of criminal history records; and (3)
encouraging states to focus on developing domestic violence record
systems that are complete and accessible to NICS. NCHIP is a long-term
approach that has resulted in many improvements to state criminal
history records. However, our analysis of NICS firearm-retrieval
actions indicates that existing criminal records systems are still not
sufficient to ensure that ineligible persons”particularly domestic
violence offenders”are prevented from purchasing firearms under NICS.
Furthermore, in the most recent BJS summary of states‘ NCHIP grant
programs, none of the six states we visited reported any specific
activities or accomplishments on improving the access to or quality of
domestic violence misdemeanor records.
* Encourage state participation in NICS. The second option was to
encourage increased state participation in NICS. The FBI originally
envisioned that most, if not all, states would conduct their own NICS
background checks; however, half the states continue to rely on the FBI
to conduct NICS checks for their states. In terms of access to records
and expertise in interpreting criminal history records, FBI officials
believe that states no longer necessarily have an advantage over FBI
examiners. On the other hand, states typically have access to automated
and manual records”including arrest dispositions”that are not
accessible through NICS. Furthermore, states that conduct their own
NICS background checks may have laws that make domestic violence (and
other) firearm-retrieval actions less likely to occur. In Utah, for
instance, state law prohibits gun dealers from selling a firearm until
an affirmative response is provided by the state agency conducting the
background check. In California, if background research reveals
unresolved questions about a purchaser‘s eligibility, the transaction
can be put on hold until these questions are resolved.
* Allow additional time for certain NICS background checks. The third
option was to amend the Brady Act to allow more than 3 business days to
research unresolved NICS background checks before allowing firearms
sales to proceed. FBI data indicate that, depending on how much
additional time is allowed, such a change could significantly reduce the
incidence of firearm-retrieval actions”including those involving
domestic violence offenders. For example, data for roughly the first 3
years of NICS operations (Nov. 30, 1998 through Oct. 19, 2001) show
that allowing up to 30 calendar days for background research would have
reduced the number of firearm-retrieval actions by about 54 percent.
[Footnote 26] Although this is somewhat less than the 77 percent
reduction we previously reported based on the first year of NICS
operations, it represents a significant improvement nonetheless.
[Footnote 27] Furthermore, in terms of the burden on firearms
purchasers, allowing more time to research unresolved transactions
would affect a relatively small percentage of all NICS background
checks. According to an FBI analysis of August 2001 NICS data, the vast
majority”over 96 percent”of NICS background checks were completed in 5
calendar days or less. Because a significant number of firearm-
retrieval actions involve domestic violence misdemeanors, reducing the
total number of such actions would, in turn, help reduce the number of
domestic violence offenders who are able to purchase firearms under
NICS.
Conclusions:
As required under the Brady Act, a firearms purchase generally may not
proceed until the gun dealer has contacted NICS to determine whether the
transfer of the firearm would violate federal firearms law and any
applicable state law. [Footnote 28] As a result, state laws and
procedures”such as those discussed previously”can have a significant
effect on NICS operations, particularly in how NICS examiners interpret
state criminal history records to establish a purchaser‘s eligibility.
Because of the variations in states‘ firearms laws, NICS examiners are
challenged to identify the applicable federal and state laws for any
particular transaction and make a decision to approve or deny the
purchase within the 3 business days allowed under the Brady Act. In
looking at the differences in how states restore gun ownership rights,
issue concealed carry permits, and identify domestic violence
convictions in their criminal history records, it is, therefore,
important to consider how these actions may affect the operations of a
federal program such as NICS.
Regarding the restoration of gun ownership rights, there is little
doubt that persons who have their gun ownership rights restored by a
state action may sometimes commit subsequent crimes”perhaps even crimes
that would make them ineligible to possess firearms. Based on the
limited number of cases we reviewed from the six selected states, we
found few instances where such persons subsequently committed
additional crimes. However, regarding how such actions may affect NICS,
any such persons would, in all likelihood, be identified by a NICS
background check if they later attempted to purchase a firearm.
Although some observers may question whether it is appropriate to allow
any restoration of gun ownership rights after such rights have been
lost through commission of a crime, that issue is not relevant here for
purposes of the potential effect on NICS‘ ability to screen prospective
purchasers and prevent ineligible persons from purchasing firearms.
On the other hand, state concealed carry permits”because they may
exempt the permit holder from a NICS background check when purchasing
firearms”can have a significant effect on NICS ability to prevent the
purchase of firearms by ineligible persons. If states do not monitor
their permit holders for continuing eligibility, and revoke the permits
of persons who become ineligible to possess firearms, it is possible
that ineligible persons could use revoked permits to purchase
firearms”avoiding a NICS check that might have prevented the sale. ATF
has determined that four of the states we visited issue concealed carry
permits that exempt permit holders from a NICS check when purchasing
firearms. In two of these four states, state officials told us they do
not recover all revoked permits and, in fact, they have no authority to
force such recovery. In these states, revoked permits could used by
ineligible persons to purchase firearms without a NICS check. States
could avoid this potential problem by requiring all permit holders to
have a separate background check at the time of purchase. A simpler
solution”which is practiced in one of these four states”is to require
gun dealers to verify the validity of the permit itself before
approving a NICS-exempt gun purchase. This procedure allows the NICS
exemption for active permit holders, while ensuring that ineligible
persons cannot use revoked permits to avoid a NICS check when
purchasing firearms.
The inability of NICS to access domestic violence misdemeanor records in
a timely manner is particularly troubling, since these offenses
represent individuals who should be prevented from purchasing firearms.
Yet, during roughly the first 3 years of NICS operations, the
percentage of NICS firearm-retrieval actions involving domestic
violence misdemeanors (representing over 2,800 persons) was
disproportionately large”almost double”when compared with the
percentage of all NICS denials involving domestic violence
misdemeanors. Various factors make domestic violence misdemeanors
difficult to identify in a timely manner. For example, while states
continue to work to automate and improve the overall quality and
accessibility of their criminal history records, this process has been
ongoing since the early 1990s and is still far from complete. Also,
domestic violence offenses may not always be clearly labeled as
domestic violence, and the complex federal definition of domestic
violence misdemeanor requires information that may not be immediately
available in the state criminal history record. Allowing unresolved
NICS transactions to proceed after 3 business days, when combined with
these other factors, has resulted in numerous domestic violence
offenders being able to purchase firearms without being identified by
NICS. These are issues that have been known for years, yet they
continue to pose problems for NICS.
FBI data suggest that allowing additional time to research unresolved
NICS background checks before allowing firearms sales to proceed would
significantly reduce the number of firearm-retrieval actions”including
those involving domestic violence offenders. For example, based on data
for roughly the first 3 years of NICS operations, firearm-retrieval
actions would have been reduced by 54 percent if up to 30 days of
research were allowed. And, based on the FBI‘s recent analysis of NICS
transaction data, most background checks would not be affected by such
a change”in fact, over 88 percent of the background checks were
completed within 1 hour, about 95 percent were completed within 3
calendar days, and over 96 percent were completed within 5 calendar
days. Thus, allowing additional time to research unresolved NICS
background checks would affect a relatively small percentage of
firearms purchasers, while at the same time helping to minimize the
number of firearm-retrieval actions.
Recommendation for Executive Action:
To minimize the possibility of ineligible persons using revoked
concealed carry permits to purchase firearms without a NICS background
check, we recommend that the Secretary of the Treasury consider
developing regulations requiring states to implement point-of-purchase
verification procedures, whereby the current validity of concealed
carry permits must be verified by licensed gun dealers before
transferring firearms to permit holders.
Matter for Congressional Consideration:
To reduce the number of NICS firearm-retrieval actions and improve the
ability of NICS to prevent domestic violence offenders from purchasing
firearms, the Congress should consider amending the Brady Act to allow
more than 3 business days to complete unresolved NICS background
checks before firearms sales are allowed to proceed.
Agency Comments and Our Evaluation:
We requested comments on a draft of this report from the Departments of
Justice and the Treasury. On June 28, 2002, Justice‘s Assistant Attorney
General for the Office of Legal Policy provided us written comments. The
comments did not specifically address our report‘s recommendation or the
matter for congressional consideration. However, Justice acknowledged
that the problem of NICS delayed denials (which can lead to firearm-
retrieval actions) primarily stems from incomplete or inaccurate state
criminal history records. Justice also identified steps it is taking,
principally through the NCHIP grant program, to reduce the NICS error
rate and achieve the most complete and accurate criminal history record
system possible. These steps include (1) directing NCHIP grant funding
to assist states to automate and improve their criminal history record
systems, (2) encouraging states to use NCHIP funds to flag records of
misdemeanor domestic violence convictions, and (3) directing BJS to
study and recommend ways to target NCHIP grants to improve the
accuracy of criminal history records, including those relating to
domestic violence.
We acknowledge that using NCHIP grant funds to improve the accuracy
and completeness of state criminal history records is an appropriate and
reasonable long-term strategy for reducing the number of NICS delayed
denials and resulting firearm-retrieval actions. However, as we have
noted in the report, these efforts have been ongoing since 1995, and yet
significant numbers of firearm-retrieval actions have occurred during
each year of NICS operations. Moreover, preliminary results from the
BJS study noted above indicate that millions of state criminal history
records remain incomplete or inaccessible by NICS. This suggests that a
different approach is needed”if not permanently, then at least in the
short term”to immediately reduce the number of domestic violence
offenders and other ineligible persons who are able to purchase
firearms under NICS. Allowing additional time to research unresolved
NICS background checks before firearms sales can proceed would
significantly reduce the number of NICS firearm-retrieval actions. At
the same time, Justice could continue working with the states to
achieve the long-term goal of improving state criminal history records
to the extent that delayed denials and firearm-retrieval actions no
longer posed a significant problem.
On June 24, 2002, Treasury provided us written comments by the Director
of ATF. Generally, ATF agreed with the report‘s recommendation to
consider developing regulations requiring states to verify the validity
of concealed carry permits before allowing firearms transfers to proceed
without a NICS background check. ATF noted, however, that it would first
need to examine the extent to which persons with revoked permits have,
in fact, been able to purchase firearms without NICS background checks.
If a real problem is found to exist, then ATF would consider what
options are available under current law to deal with the issue. The
states that we studied were not maintaining data to facilitate
determining to what extent, if any, that revoked permits have been used
to purchase firearms without a NICS check. However, in our view, the
fact that such a loophole exists and could be abused by persons legally
prohibited from purchasing firearms is sufficient reason for ATF to
take administrative action to foreclose the possibility of such
transfers and, in turn, possibly prevent a firearm-related crime of
violence.
ATF also commented that certain language in the report could be
misinterpreted to imply that ATF favors repeal of the permit alternative
under NICS, that ATF believes the rationale for allowing permit holders
to avoid a background check at the time of sale is weaker now than it
was when the Brady Act was passed in 1993, or that ATF believes holders
of valid permits should be required to undergo a separate NICS check at
the time of purchase. ATF reiterated that its mandate is to enforce the
statute as enacted by Congress and enforce the permit provisions of the
Brady Act in a manner consistent with the plain language of the statute
as well as congressional intent. We modified our discussion of the
permit alternative under NICS in order to clarify ATF‘s comments on
this issue.
The full texts of Justice‘s and ATF‘s written comments are presented in
appendixes VI and VII, respectively. In addition to these written
comments, FBI and ATF officials provided us various technical
clarifications, which have been incorporated into the report where
appropriate.
We are sending copies of this report to the Attorney General, the
Secretary of the Treasury, and interested congressional committees.
Copies will be provided to other parties upon request. This report will
also be available at no charge on the GAO Web site at [hyperlink,
http://www.gao.gov].
If you have any questions about this report or wish to discuss the
matter further, please contact me at (202) 512-8777 or Danny R. Burton
at (214) 777-5600. Other key contributors to this report are
acknowledged in appendix VIII.
Sincerely yours,
Signed by:
Laurie E. Ekstrand:
Director, Justice Issues:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
Objectives:
Representative John Conyers, Jr., Ranking Member, House Committee on
the Judiciary, requested that we provide information about state laws
and procedures regarding restoration of gun ownership rights, issuance
of concealed carry handgun permits, and convictions for domestic
violence. As agreed with the requester, our work focused on the
following questions:
* Restoration of gun ownership rights, including differences among the
states in how such rights may be restored to persons with criminal
convictions, and the extent to which persons who had their gun
ownership rights restored subsequently committed new crimes.
* Handgun concealed carry permits, including the extent to which
concealed carry permits exempt permit holders from a National Instant
Criminal Background Check System (NICS) check when purchasing firearms,
differences among the states in how they issue permits and monitor
permit holders, and what actions the states take to revoke permits if
the permit holders subsequently commit new crimes.
* Domestic violence misdemeanor convictions, including differences
among the states in how they ensure that domestic violence convictions
in state criminal history repositories are accessible to NICS, and the
extent to which persons convicted of domestic violence purchased
firearms without being identified by NICS.
Scope and Methodology:
To obtain nationwide perspectives on the three objectives, we met with
Federal Bureau of Investigation (FBI) officials from the FBI‘s NICS
Program Office in West Virginia, and the Bureau of Alcohol, Tobacco and
Firearms (ATF) officials from ATF‘s Firearms Programs Division and
Office of Chief Counsel in Washington, D.C. We obtained and reviewed
federal reports prepared by the Department of Justice‘s Bureau of
Justice Statistics (BJS), as well as relevant studies published in
professional journals and studies prepared by private sector interest
groups.
To obtain additional details about specific state laws and procedures,
we met with state or local officials in six states”California, Florida,
Massachusetts, Michigan, Texas, and Utah. As shown in table 4, and as
discussed with the requester, we judgmentally selected these states in
order to illustrate the range of state laws and procedures that address
restoration of gun ownership rights, handgun concealed carry permits,
and domestic violence misdemeanor convictions. Because these three
issues may affect NICS‘ capability to identify persons ineligible to
purchase firearms, we also selected the states to reflect a mix of
state participation types under NICS”full participant, partial
participant, and nonparticipant. [Footnote 29]
Table 4: States Selected for Study of Firearms-Related Laws and
Procedures:
State laws and procedures:
California:
Restoration of gun ownership rights:
* Pardon;
* Automatic restoration;
Handgun concealed carry permit[A]:
* May-issue state;
* Local law enforcement agencies issue permits;
Domestic violence misdemeanors:
* Specific criminal offense;
* Penalty enhancement statute;
State participation in NICS:
* State conducts checks for all firearms purchases.
Florida:
Restoration of gun ownership rights:
* Pardon;
* Restoration by petition;
Handgun concealed carry permit[A]:
* Shall-issue state;
* State non-law enforcement agency issues permits;
Domestic violence misdemeanors:
* Definition statute;
* Flag set in criminal records;
State participation in NICS:
* State conducts checks for all firearms purchases.
Massachusetts:
Restoration of gun ownership rights:
* Pardon;
* Restoration by petition;
* Automatic restoration;
Handgun concealed carry permit[A]:
* May-issue state;
* Local law enforcement agencies issue permits;
Domestic violence misdemeanors:
* No laws or procedures identified;
State participation in NICS:
* FBI conducts checks for all firearms purchases.
Michigan:
Restoration of gun ownership rights:
* Pardon;
* Set-aside;
* Automatic restoration;
* Restoration by petition;
Handgun concealed carry permit[A]:
* Shall-issue state;
* Local law enforcement agencies issue permits;
Domestic violence misdemeanors:
* Specific criminal offense;
* Penalty enhancement statute;
* Flag set in criminal records;
State participation in NICS:
* State conducts checks for handgun permits;
* FBI conducts checks for long gun purchases.
Texas:
Restoration of gun ownership rights:
* Pardon;
* Set-aside;
* Automatic restoration;
Handgun concealed carry permit[A]:
* Shall-issue state;
* State law enforcement agency issues permits;
Domestic violence misdemeanors:
* Penalty enhancement statute;
State participation in NICS:
* FBI conducts checks for all firearms purchases.
Utah:
Restoration of gun ownership rights:
* Pardon;
* Expungement;
Handgun concealed carry permit[A]:
* Shall-issue state;
* State law enforcement agency issues permits;
Domestic violence misdemeanors:
* Definition statute;
* Penalty enhancement statute;
* Flag set in criminal record;
State participation in NICS:
* State conducts checks for all firearms purchases.
[A] In shall-issue states, a permit must be issued if no statutory
reason for denial is revealed during a background check. In may-issue
states, a permit may be issued to eligible individuals after
considering additional subjective prohibitors, such as the applicant‘s
history and personal character.
Source: GAO‘s analysis of various federal, state, and private sector
information sources.
[End of table]
Generally, in performing our work, we relied on testimonial and
documentary evidence provided by the states, as well as similar evidence
provided by the FBI and ATF. In using state and federal statistical
data, we discussed the sources and accuracy of the data with
appropriate officials. We also worked with the officials to reconcile
any discrepancies we identified in the data.
The following sections present more details about our scope and
methodology for each of the three objectives.
Scope and Methodology Regarding Restoration of Gun Ownership Rights:
Our work focused on (1) summarizing nationwide perspectives and
information on state laws and procedures dealing with the restoration of
gun ownership rights, (2) comparing and contrasting specific restoration
laws and procedures in selected states, and (3) determining the extent
to which restorees subsequently committed new crimes.
Nationwide Perspectives:
To obtain nationwide perspectives on restoration of gun ownership
rights, we first obtained background information from relevant reports
prepared by government agencies and studies published in professional
journals about the various ways in which states restore a person‘s
civil rights and gun ownership rights once those rights have been lost
through a criminal conviction. Sources of information included BJS, the
Department of Justice‘s Office of the Pardon Attorney, and the
International Journal of Comparative and Applied Criminal Justice.
We also met with FBI NICS Operations Center officials to discuss (1) the
extent to which restoration of rights is documented in state criminal
history records and (2) how restoration of rights can affect NICS
operations”specifically, how the FBI determines in a timely manner
whether a particular state action restores an individual‘s right to
purchase a firearm under applicable federal and state law.
Selected States‘ Restoration Actions:
To obtain more detailed information about specific state restoration
laws and procedures, we met with officials at various state and local
agencies in California, Florida, Massachusetts, Michigan, Texas, and
Utah. We obtained information about relevant state laws, regulations,
and procedures that govern the restoration of gun ownership rights,
focusing on the four methods recognized in federal firearms
law”executive pardons, expungement of criminal records, set-aside of
criminal convictions, and restoration of civil rights.
Subsequent Criminal Activity:
To determine the extent to which restorees have been subsequently
involved in criminal activity, we first obtained background information
from relevant reports prepared by government agencies, studies published
in professional journals, and reports prepared by private interest
groups. Sources of information included the Department of the Solicitor
General (Canada), the Journal of the American Medical Association, and
the Violence Policy Center. We also met with officials from ATF‘s
Firearms Programs Division and Office of Chief Counsel to discuss ATF‘s
federal restoration of rights issues. [Footnote 30]
From the six selected states, we analyzed data on state pardons,
expungements, set-asides, and restorations of civil rights to determine
whether persons whose firearms rights were restored in these states
later committed criminal offenses. The following data were obtained
from the six states:
* California – Data on pardons granted between calendar years 1990 and
2000.
* Florida – Data on pardons and restorations of firearms authority
granted between July 1999 and June 2001.
* Massachusetts – Data on pardons granted between calendar years 1990
and 2000.
* Michigan – Data on pardons granted between March 1969 and July 1995,
conviction set-asides granted between September 2000 and November 2001,
and county restorations of firearms rights granted between October 1992
and June 2001.
* Texas – Data on pardons granted between calendar years 1992 and 2001.
* Utah – Data on pardons granted between calendar years 1990 and 2001
and expungements granted between January 2000 and March 2001.
We then had our Office of Special Investigations, or in some cases the
state agencies themselves, check the names through criminal history
databases to determine whether any of those persons had been convicted
of additional crimes since the event that restored their rights.
[Footnote 31]
The selection of restoration data used in our analysis was largely
dependent on the availability of state data for each method of
restoration. In some cases, statewide data were not available and in
other cases only data from certain time periods were available. In some
states, the analysis was based on a review of a small number of cases,
in order to facilitate cooperation from the states in helping to
analyze the data. For example:
* None of the states had data available for analysis if gun ownership
rights had been restored automatically (in California, Massachusetts,
Michigan, and Texas) or through expungement (in Utah).
* Some pardon data (in Michigan and Texas) did not have sufficient
identifying detail to enable us to perform a check of criminal history
databases and, as a result, the cases we examined were limited to the
number of pardons that had sufficient detail. In other instances
(Florida pardons and Michigan set-asides), the number of cases we
examined was limited in order to facilitate cooperation from the states
in helping to gather and analyze the data.
As a result of these limitations, the analysis of the state restoration
data is intended solely to illustrate what we found from the cases we
reviewed in the six states we visited, and the results cannot be
generalized beyond the timeframes and locations from which the data
were collected.
Scope and Methodology Regarding Handgun Concealed Carry Permits:
Our work focused on (1) determining the extent to which concealed carry
permits exempt permit holders from NICS background checks when
purchasing firearms; (2) comparing and contrasting laws and procedures
for issuing, monitoring, and revoking concealed carry permits in
selected states; and (3) determining the extent to which states revoke
concealed carry permits when permit holders subsequently commit new
crimes.
Exemptions from NICS Checks:
To determine the extent to which concealed carry permits exempt permit
holders from NICS background checks, we first reviewed the Brady Act
and its implementing regulations to identify any relevant provisions
exempting permit holders from NICS checks. We obtained ATF Brady permit
exemption lists for 1999 and 2002 identifying which states issued
permits that ATF had determined would exempt the permit holders from a
NICS background check. We also met with officials from ATF‘s Firearms
Programs Division and Office of Chief Counsel to discuss ATF‘s
interpretation of the permit exemption language in the Brady Act and
reasons for exempting permits in some states and not others. In the six
selected states, we discussed the permit-exemption issue with state
officials and identified any state laws affecting the exemption of state
permit holders from firearms background checks.
Selected States‘ Laws and Procedures:
To obtain more detailed information about specific state laws and
procedures for concealed carry permits, we met with officials at various
state and local agencies in California, Florida, Massachusetts,
Michigan, Texas, and Utah. We obtained information about state laws,
regulations, and procedures dealing with concealed carry
permits”including (1) how the states screen and approve permit
applicants, (2) how the states monitor active permit holders to ensure
they remain eligible to possess firearms, and (3) what actions the
states take to revoke permits when permit holders become ineligible.
Subsequent Criminal Activity:
To determine the extent to which concealed carry permit holders
subsequently commit crimes or other infractions that lead to permit
revocation, we first obtained background information from relevant
reports prepared by private interest groups. Sources of information
included the Cato Institute and the Violence Policy Center.
From the six selected states, we obtained and analyzed available data on
the number of concealed carry permits issued, the number of permits
revoked, and the extent to which states recovered revoked permits from
permit holders. Regarding revoked permits, we also obtained available
data on the criminal offenses that led to the revocations”including
whether these offenses were felonies or misdemeanors and whether they
involved a firearm. The following data were obtained from the six
states:
* California – Data on permits issued and revoked during calendar year
2000.
* Florida – Data on permits issued and revoked between October 1987
(program inception) and December 2001.
* Massachusetts – Data on permits issued and revoked between October
1998 (major program revision) and February 2002.
* Michigan – Data on permits issued and revoked between July 2001
(major program revision) and March 2002.
* Texas – Data on permits issued and revoked between January 1996
(program inception) and October 2001.
* Utah – Data on permits issued and revoked between January 1994 and
December 2001.
Our analysis was largely dependent on the availability of state data. In
some cases, statewide data were not available, and in other cases only
data from certain time periods were available. For example:
* California permit data were available only for calendar year 2000;
Michigan data were available only since July 2001, when the state‘s new
shall-issue permit law went into effect; and Massachusetts data were
available only since October 1998, when a major permit program change
took place.
* Only Florida and Utah data contained detail about whether the crime
leading to revocation had involved a firearm, and only Texas and Utah
data identified whether the crime committed was a misdemeanor or
felony.
As a result of these limitations, the analysis of the state concealed
carry permit data is intended solely to illustrate what we found from
the information we reviewed in the six states we visited, and the
results cannot be generalized beyond the timeframes and locations from
which the data were collected.
Scope and Methodology Regarding Domestic Violence Misdemeanor
Convictions:
Our work focused on (1) summarizing nationwide perspectives and
information on state laws and procedures dealing with domestic violence,
(2) comparing and contrasting selected states‘ laws and procedures for
ensuring domestic violence convictions are identified and reported to
state criminal history repositories, and (3) determining the extent to
which persons with domestic violence convictions are able to purchase
firearms because such records were not accessible to NICS.
Nationwide Perspectives:
To obtain nationwide perspectives and background information on
domestic violence laws and procedures, we reviewed relevant reports by
government agencies and private research groups about the various ways
in which state criminal codes address domestic violence, as well as the
general quality and accessibility of state criminal history records.
Sources of information included BJS, the Bureau of Justice Assistance,
the National Institute of Justice, the Justice Research and Statistics
Association, and the Institute for Law and Justice.
Selected States‘ Laws and Procedures:
To obtain more detailed information about specific state laws and
procedures, we met with officials at various state and local agencies in
California, Florida, Massachusetts, Michigan, Texas, and Utah. We
obtained information about relevant state laws, regulations, and
procedures dealing with domestic violence”including (1) how the states
treat domestic violence in their criminal codes or other state statutes
and (2) whether the states impose special identification or reporting
requirements on domestic violence records.
Firearms Purchases by Domestic Violence Offenders:
To determine the extent to which domestic violence offenders are able to
purchase firearms under NICS, we first reviewed relevant studies and
reports published in professional journals or private interest groups.
Sources of information included the Journal of the American Medical
Association and the Americans for Gun Safety Foundation.
We met with officials from the FBI‘s NICS Operations Center and ATF‘s
Firearms Program Division and Office of Chief Counsel to discuss the
extent to which domestic violence criminal history records cannot be
obtained within 3 business days under NICS (as prescribed under the
Brady Act) and the reasons why such records cannot be obtained. We
obtained the following FBI and ATF data for roughly the first 3 years of
NICS operations (Nov. 30, 1998 through Sept. 30, 2001): [Footnote 32]
* We obtained FBI data on the number of NICS firearm-retrieval
actions”those where the FBI took more than 3 days to determine the
purchaser was ineligible and the firearms then had to be retrieved. We
also obtained FBI data on the total number of NICS denials and the
reason for these denials”broken out by each of the federal
disqualifying factors (including domestic violence).
* We obtained ATF data on (1) the number of NICS firearm-retrieval
actions referred to ATF for retrieval of firearms and (2) the number of
these firearm-retrieval actions that had been denied because of a
domestic violence misdemeanor conviction.
We used the FBI and ATF data to quantify the number of persons with
domestic violence convictions who were able to purchase firearms when
such records were not accessible to NICS within 3 business days. The
federal data allowed a more comprehensive, nationwide analysis of such
transactions, whereas data from the selected states were more limited.
For example, some states tracked the number of such transactions but
not the disqualifying factors involved, while other states had laws
which allowed additional time to complete transactions where the
purchaser‘s eligibility could not be determined within 3 business days.
[End of section]
Appendix II: Eligibility to Possess Firearms under Federal or State
Law:
In determining whether a person is ineligible to possess firearms,
applicable federal and state laws must be considered. While federal
eligibility restrictions generally apply in all the states, states may
place additional restrictions on possessing or purchasing firearms.
Although other factors come into play, decisions about a person‘s
eligibility to possess firearms largely are based on an assessment of
state criminal history records.
Firearms Eligibility Restricted under Federal and State Law:
Under federal firearms law, the factors that make a person ineligible to
possess (or receive) firearms are generally described in Title 18,
Chapter 44, of the United States Code [Footnote 33]”primarily Sections
922(g) and 922(n). Ineligible persons include the following categories:
* Convicted felons and persons under felony indictment or information.
A felony is generally defined as any federal, state, or foreign offense
punishable by imprisonment for a term exceeding 1 year. It does not
include state offenses classified as misdemeanors and for which the
punishment is 2 years or less in prison. In addition, what constitutes
a conviction is to be determined by the laws of the jurisdiction in
which the criminal proceedings were held.
* Fugitives from justice. A fugitive is generally defined as any person
who has fled from any state, either to avoid prosecution or to avoid
giving testimony in a criminal case. This definition includes persons
who, knowing criminal charges are pending, leave the state of
prosecution.
* Unlawful drug users or persons addicted to a controlled substance.
This category includes persons who use controlled substances and have
lost the power of self control and persons currently using controlled
substances in a manner not prescribed by a licensed physician. An
inference of current use may be demonstrated by a drug conviction or
positive drug test within the past year, or by multiple drug arrests
during the past 5 years.
* Illegal or unlawful aliens. This category includes aliens who are in
the United States without a valid immigrant, nonimmigrant, or parole
status, including aliens who entered the country without inspection and
authorization or whose authorized period of stay has expired. In
addition, certain other aliens lawfully admitted in nonimmigrant status
are also ineligible, unless they meet certain exceptions defined in
federal firearms law.
* Persons adjudicated mentally defective or committed to a mental
institution. Mental defectives are generally defined as persons who
have been determined by a court or other lawful authority to be a
danger to themselves or others or who lack the mental capacity to
manage their own affairs, including persons who have been found to be
insane by a court in a criminal case. Commitment to a mental
institution is generally defined as a formal commitment by a court or
other lawful authority, including commitment for mental illness or
other reasons such as drug use. It does not include persons voluntarily
admitted to a mental institution.
* Persons who have renounced their U.S. citizenship. Persons ineligible
under this category must have renounced their citizenship before a U.S.
diplomatic or consular officer in a foreign country or before an
officer designated by the U.S. Attorney General when the United States
is at war.
* Persons dishonorably discharged from the military. This category
includes separation from the U.S. armed forces by a dishonorable
discharge or dismissal adjudged by a general court-martial. It does not
include separation resulting from any other type of discharge.
* Persons subject to a domestic violence restraining order. This
category includes persons who are subject to a court order that
prohibits harassing, stalking, or threatening an intimate partner or
child of an intimate partner, or placing such persons in reasonable
fear of bodily injury. The order must have been issued after a hearing
for which the person had actual notice and an opportunity to
participate, and the order must either find a credible threat to the
intimate partner or child, or by explicit terms prohibit the use,
attempted use, or threatened use of physical force.
* Persons convicted of a domestic violence misdemeanor. This category
includes any federal, state, or local misdemeanor where the offense
involves the use or attempted use of physical force, or the threatened
use of a deadly weapon, committed by a current or former spouse,
parent, or guardian. To be considered ineligible, such persons must
have had counsel and a jury trial (if applicable), unless those
rights were waived.
In addition to federal law, states may have their own specific laws
dealing with eligibility to possess or purchase firearms. In some
states, only the federal eligibility restrictions apply; in other
states, eligibility may go beyond what is required under federal law.
In the six states we visited, for example:
* California, a state which conducts all firearms checks under NICS,
prohibits the purchase of a firearm by persons convicted of certain
misdemeanors”such as assault, battery, and criminal possession of a
firearm”for 10 years following the conviction.
* Massachusetts, a nonparticipant state under NICS, prohibits possession
of firearms by anyone convicted of certain state-defined violent
crimes”whether felonies or misdemeanors.
* Texas, a nonparticipant state under NICS, places no additional state
eligibility restrictions on prospective firearms purchasers.
* Utah, a state which conducts all firearms checks under NICS, prohibits
any juvenile adjudicated as delinquent within the past 7 years for an
offense that would have been a felony if committed by an adult from
purchasing a firearm.
Criminal History a Key Element in Determining Eligibility:
In practice, federal and state determinations about eligibility to
possess firearms hinge largely upon a person‘s criminal history,
primarily whether the individual has been convicted of a felony or a
domestic violence misdemeanor or has been arrested and/or convicted for
drug-related offenses. For example, according to FBI data, NICS denied
199,720 firearms purchases during roughly its first 3 years of
operation (from Nov. 1998 to Oct. 2001). As shown in table 5, the vast
majority of these denials”almost 92 percent”were due to the purchasers‘
criminal histories.
Table 5: Reasons Why NICS Denied Firearms Purchases (Nov. 30, 1998
through Oct. 7, 2001):
Disqualifying factor: Criminal history;
Total number of FBI NICS denials: 182,817;
Percent of total: 91.5%.
Disqualifying factor: Criminal history: Felony;
Total number of FBI NICS denials: 126,945;
Percent of total: 63.6.
Disqualifying factor: Criminal history: Domestic violence misdemeanor;
Total number of FBI NICS denials: 27,845;
Percent of total: 13.9.
Disqualifying factor: Criminal history: Drug abuse;
Total number of FBI NICS denials: 9,898.
Percent of total: 5.0.
Disqualifying factor: Criminal history: Other criminal history[A];
Total number of FBI NICS denials: 18,129;
Percent of total: 9.1.
Disqualifying factor: Fugitive from justice;
Total number of FBI NICS denials: 5,620;
Percent of total: 2.8.
Disqualifying factor: Mental defective;
Total number of FBI NICS denials: 716;
Percent of total: 0.4.
Disqualifying factor: Illegal/unlawful alien;
Total number of FBI NICS denials: 1,178;
Percent of total: 0.6.
Disqualifying factor: Dishonorable discharge;
Total number of FBI NICS denials: 117;
Percent of total: 0.06.
Disqualifying factor: Citizenship renounced;
Total number of FBI NICS denials: 14;
Percent of total: 0.01.
Disqualifying factor: Domestic violence restraining order;
Total number of FBI NICS denials: 7,647;
Percent of total: 3.8.
Disqualifying factor: Other disqualifying factor[B];
Total number of FBI NICS denials: 1,611;
Percent of total: 0.8.
Disqualifying factor: Total;
Total number of FBI NICS denials: 199,720;
Percent of total: 100%.
Note: Percentages may not equal 100 due to rounding.
[A] ’Other criminal history“ includes denials due to (1) a state
prohibitor, (2) multiple convictions for driving under the influence,
and (3) arrest warrants that were not in the FBI‘s National Crime
Information Center database.
[B] ’Other disqualifying factor“ includes denials due to other
noncriminal prohibitors, such as state protection orders.
Source: FBI NICS Program Office.
[End of table]
In a July 2001 report on the implementation of the Brady Act and NICS,
BJS reported similar data for state and local agencies that conduct
firearms purchase background checks. [Footnote 34] Specifically, during
the year 2000, just over 66 percent of all state and local firearms
purchase denials were denied due to felony convictions, felony
indictments, or domestic violence convictions.
The number of criminal history records maintained by the FBI and the
states is enormous”and continues to grow. As shown in table 6,
according to BJS, there were over 62 million criminal history records in
the United States as of December 1999. [Footnote 35] The vast majority
of these records”about 95 percent”were generated by the states.4
Furthermore, the total number of criminal history records increased by
over 23 percent between 1993”the year the Brady Act was passed”and
1999.
Table 6: Number of Criminal History Records in the United States (as of
Dec. 31, 1999):
U.S. total:
Total criminal history records: 62,389,214;
Percent of total: [Empty].
U.S. total: State:
Total criminal history records: 59,183,600;
Percent of total: 94.9%.
U.S. total: Federal:
Total criminal history records: 3,152,069;
Percent of total: 5.1.
U.S. total: Foreign[A]:
Total criminal history records: 53,545;
Percent of total: 0.1.
Selected states: California:
Total criminal history records: 6,166,000;
Percent of total: 9.9%.
Selected states: Florida:
Total criminal history records: 3,754,200;
Percent of total: 6.0.
Selected states: Massachusetts:
Total criminal history records: 2,530,000;
Percent of total: 4.1.
Selected states: Michigan:
Total criminal history records: 1,259,500;
Percent of total: 2.0.
Selected states: Texas:
Total criminal history records: 6,157,100;
Percent of total: 9.9.
Selected states: Utah:
Total criminal history records: 392,800;
Percent of total: 0.6.
Note: Percentages may not equal 100 due to rounding.
[A] Includes records on foreign fugitives and deported felons.
Source: BJS.
[End of table]
As noted previously, most NICS denials are based on criminal history
records. As table 6 indicates, these criminal history records are
generated predominantly by the states and are maintained in state
criminal history repositories. As such, NICS must rely on the accuracy
of state criminal history records in making decisions about the
eligibility of prospective firearms purchasers.
[End of section]
Appendix III: Restoration of Gun Ownership Rights:
This appendix discusses (1) how federal firearms law recognizes certain
state methods of restoring gun ownership rights, (2) national overview
information on the availability of these methods throughout the states,
and (3) the extent to which these methods have been used by the six
states we studied”California, Florida, Massachusetts, Michigan, Texas,
and Utah.
Federal Law Recognizes State Methods of Restoring Gun Ownership Rights:
Persons prohibited from possessing firearms due to a state criminal
conviction may, under state laws, have those rights restored by the
state in which the criminal offense occurred. [Footnote 37] Certain
types of state actions that serve to restore firearms rights are also
recognized under federal law as a restoration of the federal right to
possess firearms. This recognition arises out of the meaning of the
term conviction”that is, federal law states that what constitutes a
conviction is to be determined by the law of the jurisdiction in which
the criminal proceedings were held. More importantly, federal law
specifies that any conviction that has been expunged or set aside, or
for which the person has been pardoned or has had his civil rights
restored, is not considered a conviction for firearms eligibility
purposes unless the expungement, pardon, or restoration expressly
prohibits the person from possessing firearms. [Footnote 38] Thus,
federal firearms law recognizes state use of any of the four specified
restoration methods to restore gun ownership rights to persons
disqualified due to a state criminal conviction. [Footnote 39]
Because relief from firearms disabilities is no longer readily
available at the federal level, [Footnote 40] individuals convicted of
disqualifying criminal offenses turn to the states for restoration of
gun ownership rights, through one of the four methods recognized by
federal law”pardon, expungement, setaside, or restoration of civil
rights. States use these methods to restore firearms rights, as well as
any civil rights”such as the right to vote, hold office, and serve on a
jury”lost as a result of criminal offenses. Each of these methods can
have a different impact on the disqualifying record, as well as the
extent to which firearms or civil rights are restored, as described in
the next section.
* Pardon – A pardon is, in general, an executive action that typically
mitigates the punishment the law demands for an offense and restores
any or all of the rights and privileges forfeited on account of the
offense. The power to pardon for state crimes is generally vested in
state governors or delegated to state pardon boards. An unconditional
or full pardon generally absolves the offender from all legal
consequences, direct or collateral, of the crime and conviction and
generally restores civil rights. [Footnote 41] A conditional or partial
pardon may require certain actions on the part of the offender or may
absolve only a portion of the legal consequences of the crime. States
vary in how they document pardon actions in their criminal history
record systems. Most states retain records on the original offense,
noting the pardon on the criminal history record, while some destroy or
seal all records pertaining to the offense.
* Expungement – An expungement (or erasure) is a procedure whereby
a court orders the annulment or destruction of arrest records or other
court proceedings, such as a criminal conviction, provided certain
conditions are met. When a conviction record is expunged, it may allow
the offender to say, under certain circumstances, that he or she has
never been convicted; expungement may not, however, automatically
restore the offender‘s firearms rights. Expungement can also result in
the sealing of a record, but whereas certain parties can still examine
an erased record, a sealed record can generally be examined only by
court order. Expungement and sealing of records are usually provided
for by statute for juvenile records, but may also apply to less serious
records, such as arrest records for persons acquitted at trial or whose
arrest was deemed by a court to be unlawful. Some states require the
passage of a certain period of time before an offender can apply for
expungement. Some states destroy expunged criminal records, while
others note the action in the record or seal the record.
* Set-Aside – A set-aside is an action that annuls or revokes a
previously issued judgment or order”such as a felony conviction. To set-
aside a judgment is to make it void or of no effect and to deprive it
of all force and operation as to future transactions. The majority of
states note a set-aside in the offender‘s criminal record; a few
destroy the criminal record.
* Restoration of Civil Rights – Just as state law may impose certain
civil and collateral disabilities on criminal offenders, it may also
make available procedures to remove those disabilities and restore any
rights that were lost upon conviction. In some states, civil and
collateral (e.g., firearms) rights may be restored automatically upon
completion of sentence or upon the passage of time, as provided for by
statute; in other states, restoration of rights may require an
administrative or judicial act, which may be based on evidence of
rehabilitation. Most states note the restoration in the offender‘s
criminal record, while a few may destroy the record.
National Overview on State Methods to Restore Gun Ownership Rights:
As mentioned previously, persons prohibited from possessing firearms due
to a state criminal conviction may have those rights restored by the
state in which the offense occurred, through any of four specified
methods prescribed in federal firearms law”pardon, expungement, set-
aside, and restoration of civil rights. Each of these four methods can
have a different effect on a prohibited person‘s underlying criminal
conviction and the extent to which firearms rights are restored. Recent
studies have shown that states vary in terms of (1) the restoration
methods they employ, (2) the laws and procedures they have in place to
implement those restoration methods, and (3) the underlying effect they
impose on the criminal record.
In 1996, the U.S. Office of the Pardon Attorney reported on the
availability of restoration methods among states for felony offenders
[Footnote 42] and found that states vary in terms of the methods
available for relief as well the laws they have in place to govern
these methods. The variation in procedures was so great that the Office
of the Pardon Attorney characterized state laws as a national ’crazy-
quilt“ of disqualifications and restoration procedures. The report also
identified disagreement among agencies as to how the laws in particular
jurisdictions should be interpreted and applied. Moreover, the Office
of the Pardon Attorney found that a restoration of civil rights under
state law”even through a governor‘s pardon”does not necessarily restore
firearms privileges.
Despite considerable variation among states, the Office of the Pardon
Attorney determined that state laws regarding the loss and restoration
of civil rights could be characterized in terms of the following five
patterns:
* Civil rights are not lost upon conviction, or civil rights are lost
when the offender is incarcerated and automatically restored upon
release.
* Rights are lost upon conviction, then are automatically restored after
completion of sentence, either through passage of time or by obtaining
a certificate of discharge from the sentence.
* Rights are restored through judicial or administrative procedure,
which typically requires completion of sentence and a waiting period
and may also require proof of rehabilitation.
* Rights are restored only by pardon.
* Rights are permanently lost and cannot be restored.
Other studies of restoration of civil rights provide context as to the
range and use of restoration methods by states and the effect these
methods have on disqualifying criminal convictions. For example, a 1997
study regarding the legal consequences of felony convictions compared
the availability of restoration methods among states in 1996 with the
availability of methods 10 years earlier in 1986. [Footnote 43]
Researchers found that, during those 10 years, states did not increase
the number of restoration methods available to former offenders to
restore civil rights. The study reported that in 1996 the availability
of restoration methods among states was as follows:
* All 50 states allowed for pardons. In 22 states, the decision to
pardon rested with the governor; in 16 states, the decision was shared
between the governor and a board of pardons; in 11 states the decision
rested with the board of pardons; and in 1 state, the decision required
an act of the state‘s general assembly.
* 27 states had some method of felony record expungement (including
sealing, annulment, and withheld or deferred judgments). In 9 of the 27
states, the law provided for general expungement or related legal
actions. In the other 18 states, the expungement statutes contained
specific eligibility requirements for the sealing of criminal records.
* 42 states statutorily provided for automatic restoration of all or
some civil rights for felony offenders. In 22 of the 42 states, the law
restored one or more civil rights after completion of sentence. In the
other 20 states, an existing general statute restored civil rights.
In October 2000, BJS reported on the status of state criminal history
information systems. [Footnote 44] In its report, BJS included the
results of a survey, taken in 1999, on the policies and practices of
state criminal history repositories with respect to the four
restoration methods, showing how each of the methods affected states‘
treatment of the underlying criminal history record. This survey showed
that in 1999:
* 49 states reported statutes that provided for the granting of
pardons. In 43 of the states, the pardon was to be noted in the
criminal history record; in 3 states, the record was to be destroyed;
in 1 state, the record was to be sealed; and 2 states did not indicate
how pardons were treated in terms of criminal history records.
* 21 states had statutes providing for the expungement of felony
convictions. In 9 of the states, an expunged criminal history record was
to be destroyed; in 7 states, the expungement was to be noted in the
criminal record; and in 5 states, the record was to be sealed. In two
other states, state law did not specifically provide for expungement,
but allowed records to be destroyed or sealed based on a court order.
* 40 states had statutes that provided for the set aside of felony
convictions. In 33 of the states, the set-aside was to be noted in the
criminal record; in 3 states, the record was to be destroyed; in 1
state, the record was to be sealed; and 3 states did not indicate how
set-aside records were to be treated by the state repository.
* 41 states had legal provisions that provided for the restoration of a
convicted felon‘s civil rights. In 33 of the states, the restoration
was to be noted in the criminal history record; in 3 states, the record
was to be destroyed; in 1 state, the record was to be sealed; in 2
states, restoration was not tracked or no action was taken; and 2
states did not indicate how restoration records were to be treated.
Information on Restoration of Gun Ownership Rights in Selected States:
To obtain more detailed information regarding restoration of gun
ownership rights, we reviewed state laws and procedures in six states”
California, Florida, Massachusetts, Michigan, Texas, and Utah. Each of
the six states we visited provided for the restoration of gun ownership
rights through one or more of the four specified methods. [Footnote 45]
Pardon was the most commonly utilized method, with all six states
employing some form of pardon”either full or conditional”that restored
gun ownership rights to previously ineligible persons. Expungement”
available only in Utah”was the least commonly available method of
restoring gun ownership rights.
For purposes of our study, we identified state laws and procedures to
restore state firearms rights that may, in turn, also restore federal
firearms rights by means of the four methods recognized under 18 U.S.C
§ 921. [Footnote 46] In addition to identifying state actions that
fully restore state and federal gun ownership rights, we also
identified certain state restoration actions that only partially
restore such rights. In the category of ’restoration of civil rights,“
some actions that restore state gun ownership rights do not restore
federal firearms rights, because they do not provide full relief from
disabilities”that is, they do not also restore civil rights (as
prescribed in 18 U.S.C. § 921). Other state restoration actions do not
restore federal firearms rights because civil rights were lost as a
result of a noncriminal disqualifier (such restorations are not
recognized under 18 U.S.C. § 921). Nevertheless, we present the
information here in order to illustrate the complexity of state
restoration laws and procedures and the interaction between state and
federal firearms laws.
Regarding the specific state laws and procedures for restoring gun
ownership rights, the six states differed primarily in three areas: (1)
the processes for application of and approval for relief, (2) the
conditions or criteria under which a prohibited person was eligible to
receive relief, and (3) the effect restoration methods have on firearms
rights. Table 7 shows the differences among the six states in these
three areas.
Table 7: Summary Information on Laws and Procedures Regarding
Restoration of Gun Ownership Rights in Selected States:
State: California[a];
Method of restoration: Full pardon;
Selected eligibility criteria: Available 10 years after completion of
sentence, but time limit may be waived by governor. Available for
felonies and certain registrable misdemeanor sex offenses. Must have a
clean criminal record subsequent to offense and good moral character.
Application and approval process: Residents apply to the court for a
certificate of rehabilitation, which is reviewed by the governor, or
apply directly to the governor; out-of-state applicants apply directly
to the governor‘s office. All applicants subject to background checks.
Effect on gun ownership rights: For misdemeanors and felonies not
involving a dangerous weapon, restores all state and federal firearms
rights. For felonies involving a dangerous weapon, does not restore
state or federal firearms rights. Pardons without certificate of
rehabilitation must include specific language restoring firearms
rights.
State: California[a];
Method of restoration: Restoration of civil rights;
Selected eligibility criteria: Available 5 years following release from
confinement for certain mental health disqualifications.
Application and approval process: Automatic”no application or approval
required.
Effect on gun ownership rights: Restores state firearms rights. Does
not restore federal firearms rights.
State: California[a];
Method of restoration: Restoration of civil rights;
Selected eligibility criteria: Available 10 years after completion of
sentence for certain misdemeanors.
Application and approval process: Automatic”no application or approval
required.
Effect on gun ownership rights: Restores state firearms rights. Does
not restore federal firearms rights.
State: Florida[B];
Method of restoration: Full pardon;
Selected eligibility criteria: Available 10 years after completion of
sentence for felonies and domestic violence misdemeanors. Must be a
Florida resident; cannot have more than $1,000 in criminal or traffic
infraction penalties. Not available for impeachment; available for
treason by legislative approval.
Application and approval process: Applicants apply to state pardon
board and are subject to background check and screening. All pardons,
except in cases of treason, are approved by state review panel led by
the governor.
Effect on gun ownership rights: Restores all state and federal firearms
rights.
State: Florida[B];
Method of restoration: Restoration of civil rights;
Selected eligibility criteria: Available for felonies, 8 years after
completion of sentence. All other criteria same as full pardon.
Application and approval process: Same as full pardon.
Effect on gun ownership rights: Restores all state and federal firearms
rights.
State: Massachusetts[C];
Method of restoration: Full pardon;
Selected eligibility criteria: Pardons usually not available for
certain felony offenses. Must show compelling need, have a clean
criminal record subsequent to offense, and demonstrate good
citizenship.
Application and approval process: Applicants apply to state parole
board and are subject to background check; must demonstrate that police
will grant a firearms permit. Pardons approved by governor-led review
panel.
Effect on gun ownership rights: Restores all state and federal firearms
rights.
State: Massachusetts[C];
Method of restoration: Restoration of civil rights;
Selected eligibility criteria: After release from confinement for mental
health disqualifier, with affidavit from physician.
Application and approval process: Applicants apply to local police for
state handgun permit, with physician‘s affidavit.
Effect on gun ownership rights: Restores state firearms rights. Does
not restore federal firearms rights.
State: Massachusetts[C];
Method of restoration: Restoration of civil rights;
Selected eligibility criteria: 5 years after completion of sentence for
nonviolent felonies and misdemeanors. Not available for crimes
involving trafficking of controlled substances.
Application and approval process: Automatic”no application or approval
required.
Effect on gun ownership rights: Restores state firearms rights for long
guns only. Does not restore federal firearms rights.
State: Michigan;
Method of restoration: Full pardon;
Selected eligibility criteria: Not available for impeachment.
Application and approval process: Applicants apply to state and are
subject to a background check. Pardons approved by the governor.
Effect on gun ownership rights: Restores all state and federal
firearms rights.
State: Michigan;
Method of restoration: Set-aside;
Selected eligibility criteria: 5 years after completion of sentence for
misdemeanor and specified felony convictions. Cannot have more than one
felony conviction.
Application and approval process: Applicants petition court of record
and are subject to a background check.
Effect on gun ownership rights: For misdemeanors, restores all state
and federal firearms rights. For felonies, restores state rights to
purchase and possess firearms; does not restore federal firearms
rights.
State: Michigan;
Method of restoration: Restoration of civil rights;
Selected eligibility criteria: 3 years after completion of sentence for
low-grade or nonviolent felonies.
Application and approval process: Automatic”no application or approval
required.
Effect on gun ownership rights: Restores state firearms rights. Does
not restore federal firearms rights.
State: Michigan;
Method of restoration: Restoration of civil rights;
Selected eligibility criteria: 5 years after completion of sentence for
specified felonies (e.g., arson).
Application and approval process: Applicants apply to County Concealed
Weapons Licensing Board.
Effect on gun ownership rights: Restores state firearms rights. Does
not restore federal firearms rights.
State: Texas[D];
Method of restoration: Full pardon and pardon for innocence.
Selected eligibility criteria: Full pardon not available for
impeachment; available for treason with legislative approval.
Application and approval process: Applicants apply to state pardon
board and undergo a background check. Pardons approved by governor with
board recommendation.
Effect on gun ownership rights: Restores all state and federal firearms
rights.
State: Texas[D];
Method of restoration: Firearms authority pardon;
Selected eligibility criteria: 3 years after completion of sentence,
only in extreme conditions that prevent livelihood. Not available for
offenses involving violence, drugs, or firearms. Must have clean
record, other than the offense in question. Applicants must obtain or
apply for a state pardon and apply to U.S. Secretary of the Treasury
for federal relief from disabilities.
Application and approval process: Applicants can apply to local sheriff
or state pardon board. Approved by the governor.
Effect on gun ownership rights: Restores all state and federal firearms
rights.
State: Texas[D];
Method of restoration: Set-aside;
Selected eligibility criteria: Must fulfill conditions of probation.
Not available for registered sex offenders, intoxication convictions,
and state jail felonies.
Application and approval process: Applicants apply to court of
jurisdiction.
Effect on gun ownership rights: Restores all state and federal firearms
rights.
State: Texas[D];
Method of restoration: Restoration of civil rights;
Selected eligibility criteria: 5 years after completion of sentence for
felonies and domestic violence misdemeanors.
Application and approval process: Automatic”no application or approval
required.
Effect on gun ownership rights: For misdemeanors, restores state
firearms rights. Does not restore federal firearms rights. For
felonies, restores state firearms rights only for possession in the
home. Does not restore federal firearms rights.
State: Utah[E];
Method of restoration: Full pardon;
Selected eligibility criteria: 5 years after completion of sentence,
after all other judicial remedies, including expungement, have been
exhausted.
Application and approval process: Applicants apply to and are approved
by state board, and are subject to background checks.
Effect on gun ownership rights: Restores all state and federal firearms
rights.
State: Utah[E];
Method of restoration: Expungement;
Selected eligibility criteria: 3 to 15 years after completion of
sentence, depending on offense. Cannot have more than two
convictions”only one felony”or prior expungements. Not available for
registrable sex offenses and serious felonies.
Application and approval process: Applicants apply to original court of
record for approval, subject to background check by state agency.
Effect on gun ownership rights: Restores all state and federal firearms
rights.
Note: ’Completion of sentence“ generally refers to completion of
incarceration or release from supervision or probation, whichever
occurs later.
[A] California recognizes expungements only for criminal records
expunged before September 15, 1961.
[B] Florida also restores firearms rights in cases of deferred
adjudication or suspended sentence”for felonies and domestic violence
misdemeanors”3 years after completion of probation or other court-
imposed condition.
[C] Massachusetts also allows sealing of records”and the restoration of
firearms rights”for a first-time misdemeanor drug (possession)
conviction.
[D] In Texas, persons who are pardoned are also entitled to have
records related to the pardoned conviction expunged.
[E] Utah also allows criminal records to be set aside under certain
circumstances, which make the records eligible for expungement and the
individual eligible for restoration of gun ownership rights.
Source: GAO‘s analysis of state documents and discussions with state
officials.
[End of table]
The six states we reviewed differed in the processes they have in place
for restoring firearms rights. Most of the states either provide for
automatic restoration of firearms rights for certain criminal
disqualifications, or require an administrative or judicial petition to
restore those rights. For example, California employs automatic
restoration for persons convicted of certain misdemeanor offenses, 10
years following completion of sentence. Michigan, on the other hand,
employs both procedures: persons convicted of low-grade or nonviolent
offenses have their rights restored automatically 3 years after
completing their sentence, while persons convicted of more serious
felonies”such as arson or drug-related felonies”must apply to their
County Concealed Weapons Licensing Board for relief 5 years after
completing their sentence. In contrast, Utah has no separate provision
for restoring firearms rights”individuals in that state must apply for
a pardon or an expungement. States also differed in the processes they
use for reviewing and awarding pardons. For example, in California,
pardons are approved by the governor; in Utah, pardons are approved by
a state pardon board; and in Massachusetts, pardons are approved by a
review panel, which includes the governor.
All of the six states we visited require applicants to meet certain
eligibility criteria”depending on the type of restoration method”to
qualify for firearms relief, such as the passage of time or the absence
of additional convictions. For example, persons in Florida must wait 10
years following the completion of their sentence to apply for a full
pardon or 8 years to apply for a restoration of firearms authority.
Persons convicted in Michigan of specific felonies”for example,
arson”must wait 5 years after the completion of their sentence to apply
for relief from their County Concealed Weapons Licensing Board. Many of
the states also restrict the types of offenses for which the state will
grant relief. For example, California automatically restores firearms
rights to offenders convicted of certain misdemeanors”but not
felonies”10 years after completion of sentence. Some of the states also
require that an applicant have no additional convictions other than the
offense in question. In Utah, only certain offenders with two or fewer
convictions”only one of which can be a felony”can apply to have their
criminal history record expunged.
In four of the states we reviewed”California, Massachusetts, Michigan,
and Texas”certain state restoration actions restore state gun ownership
rights, but do not restore federal firearms rights. As a result,
persons in these states who are authorized under state law to possess a
firearm are still prohibited from doing so under federal law. In
California, for example, state law automatically restores the state
right to possess or purchase firearms to certain persons who have been
involuntarily committed to a mental institution, 5 years after their
release from confinement. [Footnote 47] This restoration does not,
however, restore federal firearms rights to persons prohibited under
this category. Under 18 U.S.C. § 921, state actions to restore firearms
rights are recognized as a restoration of federal firearms rights only
for persons who lost those rights as a result of criminal disqualifiers
(such as a felony conviction), as opposed to noncriminal disqualifiers
such as confinement to a mental institution.
In Massachusetts, ATF officials have determined that the operation of
state law is inconsistent with federal law in terms of restoring
firearms rights”both handgun and long gun rights”to persons who have
been adjudicated as mentally defective or involuntarily committed to a
mental institution. Under Massachusetts statute, persons prohibited
under the mental defectives category can seek to regain their state
firearms rights if they provide an affidavit from a registered
physician attesting that they are not disabled in a manner that should
prevent them from possessing firearms. However, according to ATF
officials, the same principle that prevents recognition of California‘s
mental health restoration statute under federal firearms law also
prevents recognition of Massachusetts‘ mental health restoration
statute. That is, the specified methods of restoring firearms rights
under 18 U.S.C. § 921 do not include state restoration of firearms
rights lost as a result of noncriminal disqualifications.
Also in Massachusetts, state law restores the right to possess certain
long guns, but not handguns, to nonviolent offenders 5 years following
the completion of sentence. According to ATF officials, because this
restoration does not apply equally to both handgun and long gun rights,
it cannot be recognized under federal law as restoring firearms rights.
This stems from a ruling by the U.S. Supreme Court, Caron v. United
States, in which the court held that a state restoration action would
not restore federal firearms rights, if any restriction on an
individual‘s right to possess firearms remained following the
restoration. [Footnote 48] Similarly, in Michigan, persons convicted of
a nonviolent felony have their firearms rights automatically restored 3
years after completion of sentence, subject to certain conditions.
However, the state‘s concealed carry law prohibits anyone convicted of
a felony from ever obtaining a concealed carry permit. According to ATF
officials, because of this restriction on the right to obtain a
concealed carry permit, Michigan‘s restoration only partially restores
firearms rights to persons convicted of a felony. As a result, Caron
also applies, and such restorations cannot be recognized as restoring
federal firearms rights.
Texas‘ law restores”to varying degrees”state firearms rights that were
lost as a result of domestic violence misdemeanor and felony
convictions. The law automatically restores, 5 years after completion
of sentence, all state firearms rights to persons convicted of a
domestic violence misdemeanor. The law also allows persons convicted of
a felony to possess a firearm in their home 5 years after completion of
sentence. However, according to ATF officials, the state law does not
restore federal firearms rights for either category of offense”felony
or misdemeanor”because it does not also restore the offenders‘ civil
rights, as specified under 18 U.S.C. § 921(a)(20).
[End of section]
Appendix IV: Handgun Concealed Carry Permits:
This appendix presents (1) a national overview of concealed carry permit
programs and (2) information about selected states‘ permit programs”
including how states screen permit applicants, how they monitor the
eligibility of permit holders, and what actions states take to revoke
permits if the permit holders commit crimes.
National Overview of Concealed Carry Permit Programs:
Concealed carry laws allow gun owners, under certain conditions, to
carry a concealed loaded firearm in public. While there is no federal
law specifically addressing the issuance of concealed carry permits, 42
states have passed laws allowing citizens to carry certain concealed
firearms in public after obtaining a permit from state or local law
enforcement authorities. As shown in table 8:
* Twenty-nine states are commonly known as ’shall-issue“ states, where
a concealed carry permit must be issued if no statutory reason for
denial is revealed during a background check of the applicant.
* Thirteen states are known as ’may-issue“ states, where the police have
discretion to grant concealed carry permits to eligible individuals
after considering additional subjective prohibitors, such as the
applicant‘s history, character, and intended purpose for carrying a
firearm.
* One state allows any legal gun owner to carry a concealed firearm
without a permit, under most circumstances.
* In the remaining seven states, carrying a concealed firearm is
generally prohibited.
Table 8: Status of States with Regard to Concealed Carry of Firearms
(as of June 2002):
Alabama:
Concealed carry allowed, Shall-issue permit required: [Empty];
Concealed carry allowed, May-issue permit required: [Check][A];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Alaska:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Arizona:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Arkansas:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
California:
Concealed carry allowed, Shall-issue permit required: [Empty];
Concealed carry allowed, May-issue permit required: [Check];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Colorado:
Concealed carry allowed, Shall-issue permit required: [Empty];
Concealed carry allowed, May-issue permit required: [Check];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Connecticut:
Concealed carry allowed, Shall-issue permit required: [Empty];
Concealed carry allowed, May-issue permit required: [Check][A];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Delaware:
Concealed carry allowed, Shall-issue permit required: [Empty];
Concealed carry allowed, May-issue permit required: [Check];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Florida:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Georgia:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Hawaii:
Concealed carry allowed, Shall-issue permit required: [Empty];
Concealed carry allowed, May-issue permit required: [Check];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Idaho:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Illinois:
Concealed carry allowed, Shall-issue permit required: [Empty];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Check].
Indiana:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Iowa:
Concealed carry allowed, Shall-issue permit required: [Empty];
Concealed carry allowed, May-issue permit required: [Check];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Kansas:
Concealed carry allowed, Shall-issue permit required: [Empty];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Check].
Kentucky:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Louisiana:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Maine:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Maryland:
Concealed carry allowed, Shall-issue permit required: [Empty];
Concealed carry allowed, May-issue permit required: [Check];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Massachusetts:
Concealed carry allowed, Shall-issue permit required: [Empty];
Concealed carry allowed, May-issue permit required: [Check];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Michigan:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Minnesota:
Concealed carry allowed, Shall-issue permit required: [Empty];
Concealed carry allowed, May-issue permit required: [Check];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Mississippi:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Missouri:
Concealed carry allowed, Shall-issue permit required: [Empty];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Check].
Montana:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Nebraska:
Concealed carry allowed, Shall-issue permit required: [Empty];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Check].
Nevada:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
New Hampshire:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
New Jersey:
Concealed carry allowed, Shall-issue permit required: [Empty];
Concealed carry allowed, May-issue permit required: [Check];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
New Mexico:
Concealed carry allowed, Shall-issue permit required: [Empty];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Check].
New York:
Concealed carry allowed, Shall-issue permit required: [Empty];
Concealed carry allowed, May-issue permit required: [Check];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
North Carolina:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
North Dakota:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Ohio:
Concealed carry allowed, Shall-issue permit required: [Empty];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Check].
Oklahoma:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Oregon:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Pennsylvania:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Rhode Island:
Concealed carry allowed, Shall-issue permit required: [Empty];
Concealed carry allowed, May-issue permit required: [Check];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
South Carolina:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
South Dakota:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Tennessee:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Texas:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Utah:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Check];
Concealed carry prohibited: [Empty].
Vermont:
Concealed carry allowed, Shall-issue permit required: [Empty];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Virginia:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Washington:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
West Virginia:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Wisconsin:
Concealed carry allowed, Shall-issue permit required: [Empty];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Check].
Wyoming:
Concealed carry allowed, Shall-issue permit required: [Check];
Concealed carry allowed, May-issue permit required: [Empty];
Concealed carry allowed, No permit required: [Empty];
Concealed carry prohibited: [Empty].
Total:
Concealed carry allowed, Shall-issue permit required: 29;
Concealed carry allowed, May-issue permit required: 13;
Concealed carry allowed, No permit required: 1;
Concealed carry prohibited: 7.
[A] Sources differ somewhat as to whether Alabama and Connecticut
should be classified as ’shall-issue“ or ’may-issue“ states. On the
basis of our analysis of these states‘ permit laws, we classified
these states as ’may-issue“ states.
Source: GAO‘s analysis of state laws and information from The Brady
Campaign to Prevent Gun Violence, the National Rifle Association, the
Firearms Law Center, and [hyperlink, http://www.packing.org].
[End of table]
Federal law does not mandate that states establish certain eligibility
criteria for issuing concealed carry permits. As such, state laws
generally define the eligibility criteria that individuals must meet in
order to obtain and maintain a concealed carry permit. To better
understand the differences among states‘ concealed carry laws, we
visited six states. As noted in table 8, four of the six states we
visited”Florida, Michigan, Texas, and Utah”were ’shall-issue“ permit
states. The other two”California and Massachusetts”were ’may-issue“
states. The following sections provide a more detailed description of
each state‘s permit laws and procedures for screening permit
applicants, monitoring the eligibility of permit applicants, and
revoking permits if disqualifying offenses are detected.
Screening, Monitoring, and Revocation Procedures for Concealed Carry
Permits among Selected States:
In the six states we visited, the concealed carry permit programs were
administered either at the state level or by local officials, depending
on the state. Administrative procedures generally included permit
application, applicant screening, and permit issuance, as well as
permit monitoring and revocation. All the states we visited had formal
procedures for performing background checks of permit applicants before
issuing concealed carry permits. However, the thoroughness and types of
databases used during background checks varied slightly. The states
also had procedures in place for revoking permits once officials became
aware, through monitoring efforts, that a permit holder had committed a
disqualifying offense or otherwise became ineligible to have a permit.
However, once a permit was revoked, only two of the states would ensure
that permit holders returned the permits to the revoking authority by
seizing the permits. Also, only one of the states provided for any
enforcement penalties for failure to surrender a revoked permit.
Screening Permit Applicants:
Each of the states we visited requires applicants to fill out a form
with background information and previous criminal history, if any. In
addition to the information presented by the applicant, each state
performs independent background screening using a variety of federal
and state criminal and noncriminal information sources. To determine
eligibility to obtain a concealed carry permit, each state screened
applicants based on various disqualifiers outlined in federal and state
law. In addition to the federal firearms disqualifiers, such as
prohibitions against convicted felons and illegal aliens, the concealed
carry laws in these states identified additional disqualifiers”such as
certain violent or firearms-related misdemeanors (California and
Michigan), driving under the influence (Michigan), or the inability to
demonstrate competency with a firearm in an approved safety course (all
states visited). [Footnote 49]
As shown in table 9, in screening permit applicants for eligibility, the
permit-issuing entity in each state is to consult both federal and state
sources of criminal justice data. In all the selected states except
Florida, the issuing entity is either a state or local law enforcement
agency; Florida‘s Department of State issues the permits, while the
background screening is performed by Florida‘s Department of Law
Enforcement. In addition to name-based searches using both federal and
state information sources, the states‘ screening procedures also
include fingerprint-based checks performed by the state and the FBI.
Table 9: Methods Used by Selected States to Screen Persons Applying for
Concealed Carry Permits:
State and type of permit: California (may-issue);
Issuing entity: County sheriffs and police departments;
Information sources used for background screenings: Nationwide
databases: [Check];
Information sources used for background screenings: State criminal
databases: [Check];
Information sources used for background screenings: Other state
records: [Check];
Information sources used for background screenings: Local records:
[Empty];
Screening process time limits: 90 days.
State and type of permit: Florida (shall-issue);
Issuing entity: Department of State, Division of Licensing;
Information sources used for background screenings: Nationwide
databases: [Check];
Information sources used for background screenings: State criminal
databases: [Check];
Information sources used for background screenings: Other state
records: [Check];
Information sources used for background screenings: Local records:
[Empty];
Screening process time limits: 90 days.
State and type of permit: Massachusetts (may-issue);
Issuing entity: Police departments;
Information sources used for background screenings: Nationwide
databases: [Check];
Information sources used for background screenings: State criminal
databases: [Check];
Information sources used for background screenings: Other state
records: [Check];
Information sources used for background screenings: Local records:
[Empty];
Screening process time limits: 40 days.
State and type of permit: Michigan (shall-issue);
Issuing entity: County gun boards;
Information sources used for background screenings: Nationwide
databases: [Check];
Information sources used for background screenings: State criminal
databases: [Check];
Information sources used for background screenings: Other state
records: [Check];
Information sources used for background screenings: Local records:
[Check];
Screening process time limits: 30 days.
State and type of permit: Texas (shall-issue);
Issuing entity: Department of Public Safety;
Information sources used for background screenings: Nationwide
databases: [Check];
Information sources used for background screenings: State criminal
databases: [Check];
Information sources used for background screenings: Other state
records: [Empty];
Information sources used for background screenings: Local records:
[Check];
Screening process time limits: 60 days[A].
State and type of permit: Utah (shall-issue);
Issuing entity: Department of Public Safety;
Information sources used for background screenings: Nationwide
databases: [Check];
Information sources used for background screenings: State criminal
databases: [Check];
Information sources used for background screenings: Other state
records: [Check];
Information sources used for background screenings: Local records:
[Empty];
Screening process time limits: 60 days.
[A] This period can be extended to 180 days for good cause. If no
decision is reached within 30 days of the 180-day limit, the
application is effectively denied.
Source: GAO‘s analysis of state documents and discussions with state
officials.
[End of table]
Specifically, with regard to nationwide sources of criminal and other
disqualifying data, each state screens permit applicants against the
three databases that make up the NICS system”the Interstate
Identification Index, the National Crime Information Center, and the
NICS Index. In addition, each state we visited queried its own state
criminal history repository in reviewing permit applicants. The states
also maintained other information sources that they consulted during
the screening process. For example, all the states we visited reviewed
records of fugitive warrants. In addition, most states reviewed
listings of protection orders and mental health records. Also, some of
the states consulted information sources unique to their respective
states when screening permit applicants. California, for example,
queried records on persons under supervisory release (i.e., on
probation or parole), and Utah reviewed driver‘s license records.
Only two of the six states we visited included a check of local records
as a routine portion of the permit-screening process. For instance,
Texas law enforcement officials examine records kept at the local
(county) level as a routine part of the concealed carry permit
background investigation. A Texas Department of Public Safety officer
is to physically visit the local courthouse in the county where the
applicant resides to examine local records. Also, local officials in
Michigan are to check local records for pending charges and ongoing
investigations, in addition to records in previous counties of
residence if the concealed carry permit applicant has lived in the
present county only a short period of time. The remaining states
generally seek details from local records only when an automated
records search reveals a possible problem with incomplete data”for
example, a potentially disqualifying arrest without a disposition.
Another example of a difference in background screening processes
concerns time limits. All the states we visited have some time
limitation for the background check process specified in the state‘s
law. However, Florida‘s concealed carry permit law requires the state
to issue the permit after 90 days”even if the background check has not
been completed”unless the applicant is ineligible or has a potentially
disqualifying arrest without disposition information. According to
Florida officials, this situation could and does occur when the state
does not receive fingerprint results back from the FBI within the 90-
day time limit. During fiscal year 2001, for example, 1,065 concealed
carry permits were issued without a completed background check. In
these situations, if the permit holders are later determined to be
ineligible, the state must take action to revoke the permits”which
occurred 461 times between 1987 and 2001. In the other states we
visited, officials could use discretion in deciding whether or not to
issue a permit when the background screening could not be completed
within the time frames established by the respective state‘s concealed
carry law.
Monitoring Permit Holders:
Once concealed carry permits are issued, the states are to monitor
permit holders to ensure continued eligibility and, if needed, revoke
the permits of persons who become ineligible. Five of the six states we
visited had formal mechanisms in place for detecting a disqualifying
criminal offense or other disqualifying factors committed by permit
holders. As shown in table 10, these mechanisms include computerized
matching of names of concealed carry permit holders against state
criminal records (Utah and Florida), manual notifications to the
state‘s permit authority by the courts when a concealed carry permit
holder is convicted of a criminal offense (Michigan), and point-of-
purchase verification of a permit‘s validity (Utah).
Table 10: Methods Used by Selected States to Monitor the Eligibility of
Concealed Carry Permit Holders:
California:
Permit-monitoring methods: Automated database checks: [Check];
Permit-monitoring methods: Formal reporting of offenses[A]: [Empty];
Permit-monitoring methods: Permit verification before NICS-exempt
firearms purchase: [B];
Permit-monitoring methods: Informal monitoring: [Empty].
Florida:
Permit-monitoring methods: Automated database checks: [Check];
Permit-monitoring methods: Formal reporting of offenses[A]: [Empty];
Permit-monitoring methods: Permit verification before NICS-exempt
firearms purchase: [Empty];
Permit-monitoring methods: Informal monitoring: [Empty].
Massachusetts:
Permit-monitoring methods: Automated database checks: [Empty];
Permit-monitoring methods: Formal reporting of offenses[A]: [Empty];
Permit-monitoring methods: Permit verification before NICS-exempt
firearms purchase: [Empty];
Permit-monitoring methods: Informal monitoring: [Check].
Michigan:
Permit-monitoring methods: Automated database checks: [Empty];
Permit-monitoring methods: Formal reporting of offenses[A]: [Check];
Permit-monitoring methods: Permit verification before NICS-exempt
firearms purchase: [B];
Permit-monitoring methods: Informal monitoring: [Empty].
Texas:
Permit-monitoring methods: Automated database checks: [Check];
Permit-monitoring methods: Formal reporting of offenses[A]: [Empty];
Permit-monitoring methods: Permit verification before NICS-exempt
firearms purchase: [Empty];
Permit-monitoring methods: Informal monitoring: [Empty].
Utah:
Permit-monitoring methods: Automated database checks: [Check];
Permit-monitoring methods: Formal reporting of offenses[A]: [Empty];
Permit-monitoring methods: Permit verification before NICS-exempt
firearms purchase: [Check];
Permit-monitoring methods: Informal monitoring: [Empty].
[A] Generally, on an informal basis, law enforcement officials in all
six states can report offenses by permit holders to other state or
local officials. However, this column refers to a formal, structured
mechanism for reporting such offenses to the permit-issuing authority.
[B] As mentioned previously, in California and Michigan, a concealed
carry permit does not exempt the permit holder from a NICS background
check when purchasing firearms. Therefore, no verification of the
permit is necessary.
Source: GAO‘s analysis of state documents and discussions with state
officials.
[End of table]
With regard to automated database checks, two states”California and
Texas”have procedures to continually match permit holders‘ names
against state criminal records. In Texas, for example, new criminal
records are automatically matched against existing state records
(including the database of permit holders) as they are added to the
state criminal records repository. In two other states”Florida and
Utah”state criminal records and other potentially disqualifying records
are matched against the names of active permit holders on a periodic
basis. Florida, for example, conducts periodic matches of permit
holders against a variety of state databases and records, including
criminal histories (weekly), protection orders and repeat violent
offenders (daily), corrections records (monthly), and motor vehicle
records (monthly). Utah conducts a daily computer check by matching
records in the state criminal repository to the list of permit holders
to determine if any of them have been charged with or convicted of a
disqualifying offense. After Utah began daily matching in February
2000, the number of permits identified for revocation increased over
240 percent”from 75 revocations in 1999 to 256 revocations in 2000.
Rather than automated monitoring processes, Michigan depends on a
formal process of reporting offenses committed by concealed carry permit
holders. That is, when a permit holder is charged with an offense that
could potentially result in revocation of his or her permit, the
applicable prosecutor is to notify the county gun board that issued the
individual‘s permit. Following prosecution, a court official is to
notify the county gun board about the results, including information
about any disqualifying conviction.
Massachusetts, on the other hand, has no formal statewide mechanism for
monitoring concealed carry permit holders for continued eligibility.
Rather, monitoring is done on an ad hoc basis, such as when one local
law enforcement entity requests information on a suspicious permit
holder from another locality. Local permit-issuing authorities (police
departments) have informal agreements regarding the sharing of criminal
records on permit holders to help facilitate this process. Massachusetts
officials told us they expect to have an automated system in place in
the future to more closely monitor permit holders.
Among the states we visited, Utah uniquely monitors its concealed carry
permit holders at the time of purchase of a firearm. That is, before
selling firearms to a permit holder, a gun dealer is required to verify
the validity of the permit presented, in order to allow the purchase to
proceed without a NICS background check (ATF has determined that Utah
permits qualify to exempt the permit holders from a NICS background
check when purchasing firearms). In the other states we visited”Florida,
Massachusetts, and Texas”where ATF allows certain concealed carry
permits to be presented in lieu of a NICS check, the gun dealer performs
only a visual inspection of the permit. In Utah, the dealer is to
visually inspect the permit and call the state‘s Bureau of Criminal
Identification to verify that the permit is still valid and has not
been revoked. Florida and Texas officials commented that, without this
provision in their state laws, an individual conceivably could present
a revoked concealed carry permit and purchase a firearm without a NICS
check.
Revoking Permits:
After detecting a disqualifying criminal offense or other disqualifying
factor, all six states have similar procedures in place for revoking a
concealed carry permit. In addition to criminal offenses, a revocation
could also be warranted if the individual had developed a noncriminal
prohibition against carrying a concealed firearm (e.g., diagnosed with a
mental illness or subject to a domestic violence restraining order). As
shown in table 11, firearms prohibitions in all the states we visited
included federal disqualifiers, such as felony convictions, along with
additional prohibitions put in place by the states.
Table 11: Criteria Used by Selected States to Revoke Concealed Carry
Permits:
California:
Firearms prohibitors leading to permit revocation: Federal prohibitors:
[Empty];
Firearms prohibitors leading to permit revocation: Violent crimes:
[Empty];
Firearms prohibitors leading to permit revocation: Misdemeanor
crimes[A]: [Check];
Firearms prohibitors leading to permit revocation: Other
prohibitors[B]: [Empty];
Revocation enforcement mechanisms: Civil or criminal penalties:
[Empty};
Revocation enforcement mechanisms: Permit seizure: [Check].
Florida:
Firearms prohibitors leading to permit revocation: Federal prohibitors:
[Check];
Firearms prohibitors leading to permit revocation: Violent crimes:
[Check];
Firearms prohibitors leading to permit revocation: Misdemeanor
crimes[A]: [Check];
Firearms prohibitors leading to permit revocation: Other
prohibitors[B]: [Empty];
Revocation enforcement mechanisms: Civil or criminal penalties:
[Empty];
Revocation enforcement mechanisms: Permit seizure: [Empty].
Massachusetts[C]:
Firearms prohibitors leading to permit revocation: Federal prohibitors:
[Check];
Firearms prohibitors leading to permit revocation: Violent crimes:
[Check];
Firearms prohibitors leading to permit revocation: Misdemeanor
crimes[A]: [Check];
Firearms prohibitors leading to permit revocation: Other
prohibitors[B]: [Check];
Revocation enforcement mechanisms: Civil or criminal penalties:
[Check];
Revocation enforcement mechanisms: Permit seizure: [Check].
Michigan:
Firearms prohibitors leading to permit revocation: Federal prohibitors:
[Check];
Firearms prohibitors leading to permit revocation: Violent crimes:
[Empty];
Firearms prohibitors leading to permit revocation: Misdemeanor
crimes[A]: [Check];
Firearms prohibitors leading to permit revocation: Other
prohibitors[B]: [Check];
Revocation enforcement mechanisms: Civil or criminal penalties:
[Empty];
Revocation enforcement mechanisms: Permit seizure: [Empty].
Texas:
Firearms prohibitors leading to permit revocation: Federal prohibitors:
[Check];
Firearms prohibitors leading to permit revocation: Violent crimes:
[Empty];
Firearms prohibitors leading to permit revocation: Misdemeanor
crimes[A]: [Check];
Firearms prohibitors leading to permit revocation: Other
prohibitors[B]: [Check];
Revocation enforcement mechanisms: Civil or criminal penalties:
[Empty];
Revocation enforcement mechanisms: Permit seizure: [Empty].
Utah:
Firearms prohibitors leading to permit revocation: Federal prohibitors:
[Check];
Firearms prohibitors leading to permit revocation: Violent crimes:
[Check];
Firearms prohibitors leading to permit revocation: Misdemeanor
crimes[A]: [Check];
Firearms prohibitors leading to permit revocation: Other
prohibitors[B]: [Empty];
Revocation enforcement mechanisms: Civil or criminal penalties:
[Empty];
Revocation enforcement mechanisms: Permit seizure: [Empty].
[A] These are misdemeanors other than domestic violence, which is one
of the federal prohibitors.
[B] These are other criminal or noncriminal activities not addressed
under the federal prohibitors.
[C] Massachusetts observes the federal prohibitors; however, state law
is silent with regard to renunciation of citizenship and dishonorable
discharge as criteria for revocation.
Source: GAO‘s analysis of state documents and discussions with state
officials.
[End of table]
Regarding additional prohibitors, three of the six states visited
revoke a concealed carry permit for any violent offense”whether a
felony or misdemeanor. In addition, all six states identified certain
misdemeanor offenses that would result in revocation. Michigan, for
example, designates specific misdemeanors as revocable offenses upon
conviction”including driving under the influence, assault, child abuse,
and various firearms-related offenses. Some of the states had other
unique disqualifiers that could lead to revocation for their permit
holders. For example, in Michigan, the concealed carry permit law
generally provides that pending felony charges in any state or federal
jurisdiction can result in permit suspension and revocation.
Massachusetts is similar in that an arrest warrant in any
jurisdiction”whether in state or out of state”will result in permit
revocation. [Footnote 50] Texas also revokes permits for certain
noncriminal activities”such as delinquency on taxes, student loans, or
child support.
Of the six states we visited, only Massachusetts had laws establishing
any civil or criminal penalties if an individual failed to return a
revoked permit to state authorities. If a person fails to return his or
her revoked permit, as required by Massachusetts state law, the state
may charge the individual with a misdemeanor offense punishable by a
fine of up to $1,000 or a jail term of up to 2-½ years. Massachusetts
was also one of only two states (California was the other) where we
found that local permit-issuing authorities would actively seek out and
seize permits once they had been revoked. Massachusetts law generally
requires that revoked permits be surrendered to the permit-issuing
agency and, if not surrendered, the licensing authority is to take
possession of the permit and the permit holders may be subject to civil
or criminal penalties. In California, although not a requirement in
state law, local law enforcement officials also told us that revoked
permits are seized.
In contrast, state officials in Florida and Texas”two states with large
numbers of concealed carry permit holders”told us that they did not
actively seek out and recover revoked permits. Furthermore, neither
state has sanctions in place to force the return of revoked permits or
otherwise penalize permit holders who do not voluntarily surrender
their revoked permits. Data from Florida and Texas illustrate the
extent to which revoked permits are not surrendered.
* In fiscal year 2001, Florida issued over 25,000 concealed carry
permits. Due to the 90-day limit on application processing mandated by
state law, 1,065 of these permits were issued before the background
check was completed. State officials later found that 18 of these
persons were ineligible to have a concealed carry permit and these
permits were then revoked. However, state officials told us that 7 of
these persons did not voluntarily surrender their revoked permits.
* Although Texas officials did not have specific data, they estimated
that about 20 percent of all revoked permits are not recovered by the
state. Based on the total number of revocations (1,659) in Texas between
January 1996 and October 2001, this would represent an estimated total
of about 332 revoked permits that were not recovered.
[End of section]
Appendix V: Domestic Violence Misdemeanor Convictions:
Among the federal firearms prohibitors, identifying domestic violence
misdemeanor convictions for purposes of firearms background checks
presents a unique challenge. Although the law establishing this
prohibitor was retroactive, domestic violence offenses have
historically been categorized as assaults, making it difficult to
isolate domestic violence misdemeanors from other nondisqualifying
misdemeanors. In particular, the complex federal definition of domestic
violence misdemeanor requires information about court proceedings that
may not be immediately available in automated criminal history records.
Thus, additional manual research may be necessary to determine whether
a misdemeanor offense constitutes a federal firearms prohibitor.
This appendix (1) provides details about the complex federal definition
of domestic violence misdemeanor; (2) presents national overview
information about the laws and procedures states have developed
regarding domestic violence offenses; and (3) summarizes specific laws
and procedures used in the six states we reviewed”California, Florida,
Massachusetts, Michigan, Texas, and Utah.
Complex Federal Definition of Domestic Violence:
In September 1996, as part of the 1997 Omnibus Consolidated
Appropriations Act, Congress banned the possession of firearms by
individuals convicted of a misdemeanor crime of domestic violence.
[Footnote 51] The so-called Lautenberg Amendment amended the Gun
Control Act of 1968 to make it unlawful for any person convicted of a
misdemeanor crime of domestic violence to possess or receive firearms.
As defined in the law, a misdemeanor crime of domestic violence is an
offense that is a misdemeanor under federal or state law and has, as an
element, the use or attempted use of physical force or the threatened
use of a deadly weapon, committed by (1) a current or former spouse,
parent, or guardian of the victim; (2) a person with whom the victim
shares a child in common; (3) a person who is cohabiting with or has
cohabited with the victim as a spouse, parent, or guardian; or (4) a
person similarly situated to a spouse, parent, or guardian of the
victim.
In addition to the detailed definitional criteria and elements of the
offense, the Lautenberg Amendment also prescribed a series of more
complex exceptions to the firearms prohibition. Under these exceptions,
a person is not considered to be convicted of a domestic violence
misdemeanor under any of the following circumstances:
* The person was not represented at trial by counsel (unless he or she
waived the right to counsel).
* The person was entitled to a jury trial but the case was not tried by
jury (unless he or she waived the right to a jury trial).
* The conviction was expunged or set-aside, or the person was pardoned
or had his or her civil rights restored (if the law of the applicable
jurisdiction provides for the loss of civil rights under such an
offense) and the person is not otherwise prohibited from possessing
firearms or ammunition.
Federal firearms regulations provide that the definition of domestic
violence includes any misdemeanor that meets the criteria, regardless of
whether the applicable state statute or local ordinance does or does not
define the offense as ’domestic violence.“ For example, a person
convicted of misdemeanor assault against his or her spouse would be
prohibited from receiving or possessing firearms under the law. Also,
the firearms prohibition applies to any disqualifying misdemeanor,
regardless of the court of record (federal, state, or local) where the
conviction occurred. In practice, most criminal history records are
generated by the states, not the federal government. As such, with
respect to domestic violence misdemeanors, the determination of a
person‘s eligibility to purchase firearms is based largely on review of
state criminal history records and related documents.
As BJS stated in its February 2000 report on improving criminal history
records,[Footnote 52] identifying domestic violence misdemeanor
convictions for purposes of a firearms background check presents a
unique challenge. Although the law establishing this prohibiting
category was retroactive, domestic violence incidents have historically
been categorized simply as assaults, making it difficult to isolate
them from other criminal history records. In addition, where additional
research is necessary, information about misdemeanors may be more
difficult to track down than felonies. In its recent report on the use
and management of criminal history records, [Footnote 53] BJS noted
that most state criminal repositories collect information only about
the most serious classes of misdemeanor offenses. Moreover, BJS noted
that the general lack of comprehensive misdemeanor arrest and
disposition data has already been identified as one of the major
deficiencies in state criminal history record systems. FBI NICS
officials confirmed that researching domestic violence misdemeanor
convictions can be laborious. It often involves manual research going
back to the original court records”and in some cases to arresting
agency reports”to verify what happened and who was involved, in order
to determine whether the offense constitutes a federal firearms
prohibitor.
National Overview of Efforts to Identify Domestic Violence Offenders:
In general, domestic violence misdemeanor conviction records are
maintained, along with all other types of criminal records, in state
criminal history repositories. Some states have developed specific
systems or procedures for identifying and collecting data on domestic
violence offenders, with the effect of making such records more easily
identifiable for law enforcement and for other purposes.
National Institute of Justice:
In a July 1996 report to Congress, [Footnote 54] the National Institute
of Justice reported that many states were collecting data (or
implementing systems to collect data) on domestic and sexual violence
offenses. According to state survey results, 35 of 47 responding states
and territories collected domestic violence statistics annually;
however, there was wide variation among states with regard to what
information was collected and how it was gathered”reflecting the
differences in how states approached these issues and their existing
structures for collecting general crime data. For example, some states
enacted specific domestic or family violence statutes that clearly
defined this as an offense; some states had not designated domestic
violence as a separate offense but had instituted reporting systems for
cases that could be characterized as such; in states with an incident-
based crime reporting system, some had derived domestic violence crime
statistics from the existing system; and in states lacking incident-
based capability, some had created domestic violence reporting systems.
An October 1999 update to the 1996 report [Footnote 55] on domestic and
sexual violence expanded on the original findings. With respect to law
enforcement databases”which collect data on offenses reported to or
arrests by local law enforcement agencies”34 states reported having
some type of law enforcement data collection system for domestic
violence. In discussing the key components of law enforcement databases,
the report stated that domestic violence offenses in these systems can
be identified through a number of methods”including relationship and
offense codes, flags, specific offense codes, and specific crime
statutes. For example, ’flags“”typically a special line entry or box
that is checked”clearly designate an offense in the state‘s criminal
history records as domestic violence, thus making these offenses easier
to identify for law enforcement purposes. Recognizing the advantages of
these systems, the report recommended, among other things, that states
should implement incident-based reporting systems that use nationally
compatible offense and relationship codes.
Institute for Law and Justice:
In October 2000, the Institute for Law and Justice”under a grant from
the
National Institute of Justice”reported on state domestic violence laws
from a law enforcement perspective.[Footnote 56] The report noted that
criminal code provisions for addressing domestic violence include both
traditional common law offenses”such as assault and battery”as well as
provisions that specifically criminalize domestic violence and related
offenses. Specifically, 37 states had enacted domestic battery laws to
complement common law assault and battery laws. These offenses can be
classified as misdemeanors or felonies, depending on the circumstances.
According to the report, the primary purpose of these laws is to
provide enhanced penalties, especially for repeat offenses. However,
the laws also provide a basis to more clearly identify domestic
violence-related offenses within a state‘s criminal history records.
The report concluded that the states had adopted widely variant
statutory models for addressing domestic violence and that state
legislation making domestic violence a crime was ’largely a hodge-podge
of differing provisions.“ To address these issues, the report
identified certain model legislative guidelines that states could
follow in revamping their domestic violence laws. With respect to
criminal law provisions, these guidelines included, among other things,
the establishment of specific state domestic violence assault and
battery offenses.
Bureau of Justice Statistics:
In April 2002, BJS issued its latest in a series of surveys of state
procedures for firearms sales. [Footnote 57] Among other things, BJS
surveyed the states to determine what automated or manual databases
maintained by state agencies were normally available to checking
agencies during the course of firearms background checks. As of June
2001, BJS found that all 50 states had established criminal history
databases containing”at a minimum”felony arrests and convictions and,
in some cases, dispositions and other data on domestic violence and
other misdemeanors. In addition to these general criminal history
databases, BJS further reported that 33 of the states surveyed had
misdemeanor conviction databases that could also be accessed during
firearms background checks. However, the report did not indicate
whether these databases were automated or manual, nor the extent to
which they included domestic violence convictions.
Differences in Domestic Violence Laws and Procedures in Selected
States:
In the six states we visited, we looked for various approaches used by
the states that could make it easier to identify domestic violence
convictions in state criminal history records for purposes of NICS
background checks. As shown in table 12, these approaches included
establishing a specific domestic violence criminal offense, defining
domestic violence as an element of certain general criminal offenses,
enacting penalty enhancement statutes for domestic violence offenses,
and flagging domestic violence offenses in the criminal history
records.
Table 12: Selected State Laws and Procedures for Identifying Domestic
Violence Offenders in Criminal Records:
California:
Specific criminal offense: [Check];
Definition statute: [Empty];
Penalty-enhancement statute: [Check];
Flagged in criminal history records: [Empty].
Florida:
Specific criminal offense: [Empty];
Definition statute: [Check];
Penalty-enhancement statute: [Empty];
Flagged in criminal history records: [Check].
Massachusetts:
Specific criminal offense: [Empty];
Definition statute: [Empty];
Penalty-enhancement statute: [Empty];
Flagged in criminal history records: [Empty].
Michigan:
Specific criminal offense: [Check];
Definition statute: [Empty];
Penalty-enhancement statute: [Check];
Flagged in criminal history records: [Check].
Texas:
Specific criminal offense: [Empty];
Definition statute: [Empty];
Penalty-enhancement statute: [Check];
Flagged in criminal history records: [Empty].
Utah[A]:
Specific criminal offense: [Check];
Definition statute: [Check];
Penalty-enhancement statute: [Check];
Flagged in criminal history records: [Check].
[A] Utah has enacted a domestic violence criminal offense, but the
statute covers only domestic violence committed in the presence of a
child.
Source: GAO‘s analysis of state statutes, agency documents, and
discussions with state officials.
[End of table]
As table 12 shows, two of the six states we visited”California and
Michigan”have specific statutes that make domestic violence a criminal
offense. In California, the state penal code has a separate citation for
misdemeanor battery, when the violence involves a spouse or other
similar relationship (Sec. 243e). In addition, the state penal code
contains another statute that makes certain offenders”that is, persons
who willfully inflict a traumatic injury on their spouse, former
spouse, cohabitant, former cohabitant, or the mother or father of their
child”guilty of a felony (Sec. 273.5). When a person is convicted of
domestic violence under these statutes, California law enforcement
personnel are to enter the appropriate citation in the criminal history
record, thus making the offenses clearly identifiable as domestic
violence for NICS background check purposes. Similarly, in Michigan,
the state penal code statute for assault and battery includes a
separate provision for domestic violence misdemeanor when the assault
involves a family member or other close relationship (Sec. 750.81(2)).
Two states”Florida and Utah”define domestic violence in noncriminal
statutes, rather than within the context of a specific domestic violence
criminal offense. For example, Florida‘s statutes on domestic
relations define domestic violence to mean offenses such as assault,
battery, false imprisonment, or any criminal offense resulting in
physical injury or death of one family or household member by another
who is or was residing in the same home (Sec. 741.28). Florida also
requires a minimum level of punishment when any of the specified
domestic violence-related offenses are committed. Similarly, Utah‘s
code of criminal procedure contains the Cohabitant Abuse and Procedures
Act, which includes a definition of domestic violence (Sec. 77-36-1).
Within this definitional statute, certain crimes are identified”such as
assault and harassment”which, if they involve one cohabitant assaulting
another, are considered to be domestic violence offenses. In both
states, however, the offenses themselves are still charged under
general criminal statutes and, thus, they may not be easily identified
in the criminal records during the course of a NICS background check.
Four states”California, Michigan, Texas, and Utah”have penalty-
enhancement statutes that provide for additional punishment when
convicted domestic violence offenders are subsequently convicted of
another domestic violence offense. For example, under the Michigan
domestic violence statute, a convicted first-time offender is guilty of
a misdemeanor punishable by up to 93 days in prison, making this a less
serious misdemeanor. However, second-time offenders are guilty of a
misdemeanor punishable by up to 1 year in prison (Sec. 750.81(3)), and
third-time offenders are guilty of a felony punishable by up to 2 years
in prison (Sec. 750.81(4)). These enhancements increase the penalty for
the domestic violence offense, but also”because they are considered more
serious than first-time offenses”make them subject to more stringent
reporting procedures to the state‘s criminal history repository. Texas,
has a penalty-enhancement statute for familial assault (Sec. 22.01(b)),
which is a separate citation under the state‘s penal code for general
assault. A misdemeanor offense normally charged under the assault
statute is enhanced to a felony if the defendant has previously been
convicted of an assault involving the offender‘s spouse or other member
of the household. While felony enhancements would be easily
identifiable in the criminal records as disqualifying offenses during a
NICS background check, first-time misdemeanor offenders charged under
the general assault statute may not be as easily identified, since this
part of the statute includes not only domestic assaults, but other
types of assaults as well.
Finally, three of the six states”Florida, Michigan, and Utah”identify
domestic violence offenses in their criminal history database by using
an automated flag. According to Florida officials, 2 years ago the
Florida Department of Law Enforcement implemented an automated
fingerprint system that allows users to check a ’yes/no“ box when
submitting a domestic violence offense to the state‘s criminal history
repository. In addition, this system provides a narrative field that
allows users to enter details of the domestic violence incident. The
’yes/no“ box and narrative field allow anyone conducting a NICS
background check to quickly see from the criminal history record if the
person has a domestic violence offense on his or her record. [Footnote
58] In Michigan, any time the offense code for a domestic violence
offense is entered into the criminal history record, the system
automatically places a flag in the record indicating that it is a
disqualifying domestic violence offense.
One of the states we visited”Massachusetts”has no specific domestic
violence criminal offense statute, nor other mechanism for easily
identifying domestic violence offenses in the state‘s criminal history
records. In February 2002, the state amended its criminal statutes
(Chap. 265, Sec. 13A) in order to create two new types of
offenses”assault or battery against pregnant women and assault or
battery in violation of certain protective orders. Although both
provisions could be used to prosecute domestic violence-related
offenses, the former provision could also be used to prosecute an
assault where there is no family or household relationship involved.
Also, this provision does not define or include any reference to the
offender-victim relationship as a required element of the offense. As
such, a conviction under the new statute, in and of itself, would not
always be an indicator that the offense is domestic violence-related.
[End of section]
Appendix VI: Comments from the Department of Justice:
U.S. Department of Justice:
Office of Legal Policy:
Washington, DC 20530:
June 28, 2002:
Ms Laurie Eckstrand:
Director of Justice Issues:
General Accounting Office:
441 G Street, N.W.
Washington, D.C. 20548:
Re: GAO Review of Ways to Improve the National Instant Criminal
Background Check System:
Dear Ms. Eckstrand:
Thank you for the opportunity to review the final draft of the General
Accounting Office ("GAO") report entitled "Gun Control: Opportunities
to Close Loopholes in the National Instant Criminal Background Check
System, GAO-02-720." This letter constitutes the formal comments of the
Department of Justice, and I request that it be included with that
report.
The report observes that in the first thirty-four months of NICS
operations, approximately 2,900 NICS transactions involving persons
convicted of domestic violence misdemeanors were referenced to the
Bureau of Alcohol, Tobacco, and Firearms (ATF) for the retrieval of a
firearm. These referrals were made because the NICS did not obtain
information showing the person to be disqualified until after the
expiration of the three business days allowed for NICS checks. The
Brady Act allows gun dealers to transfer a firearm to a prospective
purchaser, if the NICS does not advise the dealer within three business
days that it has determined, based on available information, that the
person is prohibited. Transactions determined by the NICS to be
prohibited after the time allowed under the Brady Act are referred to
as "delayed denials." As your report notes, delayed denials occur with
other categories of prohibited persons as well, the largest category
involving persons convicted of a felony. We believe that all delayed
denials are a cause for concern and, for that reason, the FBI
immediately refers such cases to the ATF for a firearm retrieval
investigation.
As your report notes, the problem of delayed denials stems from
incomplete or inaccurate state criminal history records. The Department
of Justice has been directing substantial resources, authorized by
Congress, to address this problem through the National Criminal History
Improvement Program (NCHIP) to assist the states in improving their
criminal history record systems. The Department has awarded nearly $40
million in NCHIP funds to the states in FY 01 and will award $39
million in FY02. For FY03, the President's budget requests S63 million
for this purpose. Since its inception m 1996, NCHIP has provided over
$350 million to the states to automate and improve the completeness of
their criminal history record systems Through these efforts, the
problem of incomplete criminal history records should diminish over
time.
In the area of domestic violence, the NCHIP has focused in particular
on getting states to promptly enter domestic violence protection orders
into the National Protection Order File in the Federal Bureau of
Investigation's (FBI's) National Crime Information Center (NCIC). Since
persons subject to these orders have been found by a court to pose a
threat to the physical safety of an intimate partner or child, we
believe it is particularly important to ensure that information on
soot' persons is available for a NICS check, This file was first
established by the FBI in May 1997, and has grown from 3 states
entering 126 protection orders at the outset, to 42 states that have
entered over 678,000 protection orders today. Between 1995 and 2001,
the Department awarded approximately $16.5 million in NCHIP funds to 46
states and the District of Columbia addressing domestic violence,
targeting directly the development of databases of protection orders
that can be made available to the NICS.
In addition, the FBI NICS has allowed states to enter into the NICS
database information about protection orders that do not meet the
criteria for entering records into the NCIC, thereby providing the
states an additional avenue for making this information available for
NICS checks. The FBI has also developed a special training program that
it regularly presents to state officials to promote the prompt entry of
protection orders in the National Protection Order File. For
misdemeanor crimes of domestic violence, the FBI is encouraging states
to flag records of misdemeanor domestic violence convictions, and
states have begun using NCHIP money for this purpose.
Even with this progress, however, the Attorney General recognized a
year ago that more needs to be done to achieve greater completeness in
the criminal history record system, and directed the Bureau of Justice
Statistics (BJS) to study and recommend ways to target these grants to
improve the accuracy of state criminal history records, including
records relating to domestic violence. A copy of the Attorney General's
directive, dated June 28, 2001, is attached. The BJS recommendations
will assist the states in making the most of their NCHIP grants to
improve the completeness and accuracy of their criminal history
records.
Finally, we think it is impatient to put the scope of the problem of
delayed denials into perspective. In the time frame covered by your
report (November 30, 1998 ” September 30, 2000, the FBI's NICS
Operations Center processed over 12 million background checks. The
approximately 11,000 firearm retrieval referrals by the FBI cited in
the report constitute .09 percent of the total transactions processed,
which is a very low error rate for a system of this size and
complexity. That being said, we are still taking affirmative steps,
with the support of Congress, to reduce this error rate by continuing
our efforts to achieve the most complete and accurate criminal history
record system possible.
We appreciate the GAO's review of these issues and thank the Congress
for its support in our continuing efforts to improve the NICS to
effectuate fully the requirements of the Brady Act.
Sincerely,
Signed by:
Viet D. Dinh:
Assistant Attorney General:
[End of letter]
Office of the Attorney General:
Washington, DC, 20530:
June 28, 2001:
Memorandum For Mary Lou Leary, Acting Assistant Attorney General Office
Of Justice Programs:
From: [Signed by] The Attorney General:
Subject: Improving Access to and Integrity of Criminal History Records:
I hereby direct the Bureau of Justice Statistics (BJS) to conduct a
study and review of the problem of missing dispositions in criminal
history records. This process should include a comprehensive review of
the factors that are responsible for incomplete criminal history
records. and their impact on public and private entities which utilize
these records, including, but not limited to, the National Instant
Criminal Background Check System (NICS). It is my hope and expectation
that this process will begin immediately and tic completed
expeditiously.
In order to achieve this goal, I further direct that the review and
study should include. among other considerations, the fallowing
elements:
1. A collection and review of relevant data from the National Instant
Criminal Background Check System as it relates to missing dispositions
in NICS background checks. Accordingly, the Federal Bureau of
Investigation's National Instant Criminal Background Check System
program is instructed to cooperate in providing BJS with the necessary
data to conduct said review,
2. The Bureau of Justice Statistics shall conduct a survey of the
states in order to determine the level of record completeness and the
relevant technological infrastructure needed to support State Criminal
History Repositories. This study should include information and data
from all federal and state agencies with involvement in criminal
history records, including the court systems, law enforcement agencies
and prosecutors' offices;
3. The Bureau of Justice Statistics shall also conduct a review of the
current requirements, usage, targets, and restrictions of the NCHIP
grant program This review should focus on what continuing and further
efforts can be made by the NCHIP program to bring states up to a higher
level of criminal history record completeness;
4. As a part of this study the Bureau of Justice Statistics' shall also
review the availability of state records relating to categories of
prohibited persons, including adjudicated mental health and domestic
violence records.
Please coordinate this review and study in conjunction with the Office
of Legal Policy. Upon completion of the review, please report to me
developed recommendations for a national, coordinated effort to solve
the problem of missing records for criminal histories and other
prohibited categories.
[End of letter]
[End of section]
Appendix VII: Comments from the Bureau of Alcohol, Tobacco and
Firearms:
Department of the Treasury:
Bureau of Alcohol, Tobacco, and Firearms:
Washington, DC 20226:
[hyperlink, http://www.atf.treas.gov]:
June 24, 2002:
CC-73,334 FE:SRR:
Mr. Dan Burton:
Assistant Director:
U.S. General Accounting Office:
Washington, DC 20548:
Dear Mr. Burton:
This is in response to your request for comments on the draft General
Accounting Office (GAO) report entitled "Gun Control: Opportunities to.
Close Loopholes in the National Instant Criminal Background Check
System (NICS)." The Bureau of Alcohol, Tobacco and Firearms (ATF)
appreciates the opportunity to comment on the findings and
recommendations of the GAO with respect to this issue.
The draft report provides information on differences in State laws
regarding restoration of firearms rights and criteria for issuance of
concealed weapons permits. The report also examines ways in which the
States ensure that convictions for misdemeanor crimes of domestic
violence are accessible to NICS. The report focuses on the laws of six
States: California, Florida, Massachusetts, Michigan, Texas, and Utah.
The draft report contains two recommendations, only one of which
pertains directly to ATF. The recommendation that is outside of our
jurisdiction suggests that Congress should consider an amendment to the
Brady Act that would allow the Federal Bureau of Investigation (FBI)
more than three business days to process background checks, to ensure
that prohibited persons are not allowed to purchase guns from firearms
dealers. ATF has no comment on this legislative proposal, and would
defer to the views of the Justice Department on this issue.
The draft report also recommends that ATF consider amending its
regulations to require Federal firearms licensees to contact State
permit authorities to ensure that a State concealed weapons permit is
still valid before accepting that permit as an alternative to the
background check otherwise required under the Brady Act. ATF will take
this recommendation under consideration. However, as noted in the draft
report, ATF would first need to examine whether there is a real problem
to address here - in other words, whether individuals with revoked
permits have, in fact, been able to purchase firearms without
background checks. If ATF determines that a problem exists, we will
consider what options are available under current law to deal with this
issue.
We would reiterate our prior comments that the language on pages 15-16
may be misinterpreted to imply that ATF favors repeal of the permit
alternative under the permanent provisions of the Brady law, or that
ATF officials believe that the rationale for allowing permit holders to
avoid a background check at the time of sale is weaker now than it was
when interim Brady was enacted in 1993. Furthermore, ATF did not
express the view that holders of valid permits that qualify as
alternatives to a background check should be required to undergo a NICS
check at the time of purchase. It is ATF's mandate to enforce the
:statute as enacted by Congress, and we are enforcing the permit
provisions of the Brady Act in a manner consistent with the plain
language of the statute as well as Congressional intent. To the extent
that the discussion on these pages is intended to reflect the views of
GAO rather than ATF, we request that the language be modified to
clarify this point.
ATF has already provided you with technical comments on the draft
report's analysis of Federal and State laws, Rather than repeat those
comments at this point, we would simply incorporate them by reference.
You should also note that on page 49, it is stated that a set aside of
a Michigan felony conviction would restore Federal firearms rights.
While this issue is under consideration by the Michigan Attorney
General's office, it is ATF's current position that since individuals
who have had their Michigan felony convictions set aside are still
subject to State firearms restrictions. The set aside does not remove
Federal firearms disabilities.
we appreciate the opportunity to provide you comments on this report.
We also appreciate the professionalism displayed by your audit team in
conducting the research necessary for preparing it. We hope that you
will find our comments useful in preparing your final document.
Sincerely yours,
Signed by:
Bradley A. Buckles:
Director:
[End of section]
Appendix VIII: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
Laurie E. Ekstrand, (202) 512-8777:
Danny R. Burton, (214) 777-5600:
Acknowledgments:
In addition to the above, David Alexander, Philip Caramia, Marco Gomez,
Barbara Guffy, Geoffrey Hamilton, Michael Harmond, William McDaniel,
and Ellen Wolfe made key contributions to this report.
[End of section]
Footnotes:
[1] Federal law prohibits persons from receiving or possessing a
firearm if they (1) have been convicted of, or are under indictment
for, a felony; (2) are fugitives from justice; (3) are unlawful drug
users or are addicted to a controlled substance; (4) have been judged
mentally incompetent or have been involuntarily committed to a mental
institution; (5) are aliens illegally or unlawfully in the United
States, or certain other aliens admitted under a nonimmigrant visa; (6)
have been dishonorably discharged from the military; (7) have renounced
their U.S. citizenship; (8) are under a domestic violence restraining
order; or (9) have been convicted of a domestic violence misdemeanor.
See 18 U.S.C. § 922(g) and 922(n).
[2] Firearm-retrieval actions occur when a NICS background check is not
completed within 3 business days, the firearms transfer legally
proceeds, but the purchaser is later found to be ineligible to purchase
firearms. In these cases, steps must then be taken to retrieve the
firearm. Firearm-retrieval actions are also referred to as ’delayed
denials.“
[3] Public Law 103-159 (1993).
[4] The Interstate Identification Index currently contains about 90
percent of the records checked by NICS.
[5] Federal firearms law prohibits certain persons from possessing or
receiving firearms. For the purposes of this report, we use the terms
’gun ownership rights“ and ’firearms rights“ interchangeably to refer
to the possession or receipt of a firearm.
[6] In order to relieve federal firearms disabilities, a state
restoration action must restore a person‘s civil rights”that is, the
right to vote, the right to hold public office, and the right to serve
on a jury.
[7] 18 U.S.C. § 921(a)(20) applies the meaning of conviction to crimes
punishable for a term exceeding 1 year (i.e., felonies). Similarly,
subsection (a)(33) applies this meaning to misdemeanor crimes of
domestic violence.
[8] Public Law 102-393 (1992).
[9] 27 C.F.R. 178.102(d).
[10] Section 658 of Public Law 104-208 (1996), commonly known as the
Lautenberg amendment.
[11] U.S. General Accounting Office, Gun Control: Implementation of the
National Instant Criminal Background Check System, GAO/GGD/AIMD-00-64
(Washington, D.C.: Feb. 29, 2000) and Gun Control: Options for
Improving the National Instant Criminal Background Check System,
GAO/GGD-00-56 (Washington, D.C.: Apr. 12, 2000).
[12] However, federal criminal offenders can have their gun ownership
rights restored only by a federal”not a state”procedure (Beecham v.
United States, 511 U.S. 368 (1994)).
[13] In addition to concealed permits, ATF reviewed state permits
governing the purchase or possession of firearms to determine if any of
these permits would qualify as exempt from NICS.
[14] In shall-issue states, a permit must be issued if no statutory
reason for denial is revealed during a background check. In may-issue
states, a permit may be issued to eligible individuals after
considering additional subjective prohibitors, such as the applicant‘s
history and personal character.
[15] FBI data show that 11,847 firearm-retrieval actions were referred
to ATF during this same time period. According to an ATF official, the
difference represents firearm-retrieval actions that were later purged
from ATF systems in June 2001 because the FBI had subsequently
overturned the underlying denials.
[16] The ATF data on firearm-retrieval actions covers roughly the first
3 years of NICS operations”November 30, 1998, through September 30,
2001. The FBI data on all NICS denials covers approximately the same
time period”from November 30, 1998, through October 7, 2001.
[17] GAO/GGD-00-56, p.17. Although gun dealers are allowed to transfer
firearms after 3 days if the NICS check is not completed, FBI examiners
continue to research these unresolved transactions for up to 21 days to
determine whether the transactions should have been approved or denied.
[18] Department of Justice, BJS, Improving Criminal History Records for
Background Checks, NCJ-192928 (Washington, D.C.: Feb. 11, 2002).
[19] BJS NCJ-192928.
[20] Testimony of Gerry Wethington, Director, Information Systems,
Missouri Highway Patrol, on behalf of SEARCH, before the Subcommittee
on Crime, House Committee on the Judiciary, March 5, 1997. SEARCH is
the National Consortium for Justice Information and Statistics and was
closely involved in all of the criminal history record information and
other information aspects of the Brady Act and NICS.
[21] Department of Justice, BJS, Continuing Criminal History Records
Improvement Evaluation: Final 1994-1998 Report, NCJ-179768 (Washington,
D.C.: Feb. 2000).
[22] Department of Justice, BJS, Use and Management of Criminal History
Record Information: A Comprehensive Report, 2001 Update, NCJ-187670
(Washington, D.C.: Dec. 2001).
[23] The previous flagging system, implemented in 1992, identified only
whether an individual had felony or misdemeanor convictions.
[24] Department of Justice, Bureau of Justice Assistance, Early
Experiences With Criminal History Records Improvement: Monograph, NCJ-
152977 (Washington, D.C.: May 1997).
[25] GAO/GGD-00-56, p.15-21.
[26] By comparison, allowing up to 20 days would have reduced the
number of firearm-retrieval actions by 38 percent; allowing up to 60
days would have reduced the number of firearm-retrieval actions by 87
percent.
[27] GAO/GGD-00-56, p.23.
[28] 18 U.S.C. § 922(t).
[29] States that conduct all NICS firearms checks are known as full
participant states. States that conduct NICS checks only for handguns
are known are partial-participant states. States in which the FBI
conducts all firearms checks are known as nonparticipant states.
[30] As mentioned previously, persons who have lost the right to
possess firearms”for example, because of a criminal conviction”can
petition ATF for relief from firearms disabilities imposed by federal
laws. However, since October 1992 Congress has prohibited ATF from
using any appropriated funds to process such petitions, essentially
leaving the states primarily responsible for restoring firearms rights.
[31] Because expungement actions may, in most cases, destroy the record
or make it unavailable for review, we did not do any subsequent
analysis on the extent to which persons who obtained expungements later
committed crimes.
[32] The FBI data on total NICS denials and disqualifying factors
covered the time period November 30, 1998, through October 7, 2001.
[33] The Gun Control Act of 1968, Public Law 90-618 (as amended).
[34] Department of Justice, BJS, Background Checks for Firearm
Transfers, 2000, NCJ-187985 (Washington, D.C.: July 2001).
[35] Department of Justice, BJS, Survey of State Criminal History
Information Systems, 1999, NCJ-184793 (Washington, D.C.: Oct. 2000).
[36] More recently, BJS reported that the total number of state
criminal history records had increased to almost 64 million, as of July
2001.
[37] Regarding federal criminal convictions, in Beecham v. United
States 511 U.S. 368 (1994), the U.S. Supreme Court held that federal
offenders can have their firearms rights restored only through a
federal restoration action, such as a presidential pardon, and not a
state restoration action.
[38] 18 U.S.C. § 921(a)(20) applies this definition to felony
convictions (i.e., crimes punishable for a term exceeding 1 year);
subsection (a)(33) applies this definition to domestic violence
misdemeanor convictions.
[39] The provisions of 18 U.S.C. § 921 regarding restoration of
firearms rights apply only to criminal convictions, as previously
defined. Section 921 does not address state restoration for noncriminal
firearms disqualifiers, such as mental disability or drug addiction.
[40] Since October 1992, Congress has prohibited Treasury from
expending appropriated funds to act upon petitions for relief from
federal firearms disabilities under its authority at 18 U.S.C. § 925.
Regarding federal crimes, however, relief from firearms disabilities
may be obtained through a presidential pardon, under Article II,
Section 2, of the United States Constitution.
[41] A pardon does not necessarily overcome licensing qualifications
for employment or occupation purposes, such as the requirement of ’good
moral behavior.“ Thus, pardoned offenders may still be barred from
employment in certain occupations (e.g., law, contracting) that have
such licensing requirements.
[42] Department of Justice, Office of the Pardon Attorney, Civil
Disabilities of Convicted Felons: A State-by-State Survey (Washington,
D.C.: Oct. 1996).
[43] ’Reducing the Legal Consequences of a Felony Conviction: A
National Survey of State Statutes Ten Years Later,“ International
Journal of Comparative and Applied Criminal Justice, Vol. 21, No. 1
(Spring 1997).
[44] Department of Justice, BJS, Survey of State Criminal History
Information Systems, 1999, NCJ-184793 (Washington, D.C.: Oct. 2000).
[45] We focused on those restoration methods provided for by state
statute. Gun ownership rights may also be restored by court
actions”most notable, where convictions are ’set aside“ by an appellate
court for reasons of procedural or substantive error, which would
nullify the conviction and restore any rights lost as a result of the
conviction.
[46] In some cases, these four restoration methods may also be used to
restore other rights”such as civil rights”lost as a result of a state
criminal conviction.
[47] California allows this restoration for persons who have been
involuntarily committed for 14 days or less to a mental institution,
which is a state firearms disqualification.
[48] Caron v. United States, 524 U.S. 308 (1998).
[49] The screening disqualifiers also may provide grounds to revoke a
permit once it has been issued. Additional examples of state permit
disqualifiers are discussed below in the section on revoking permits.
[50] In contrast, to be considered a fugitive under federal firearms
law”and thus prohibited from purchasing or possessing firearms”an
individual must have fled the jurisdiction (i.e., the state).
[51] Section 658 of Public Law 104-208 (1996).
[52] Department of Justice, BJS, Continuing Criminal History Records
Improvement Evaluation: Final 1994-1998 Report, NCJ-179768 (Washington,
D.C.: Feb. 2000).
[53] Department of Justice, BJS, Use and Management of Criminal History
Record Information: A Comprehensive Report, 2001 Update, NCJ-187670
(Washington, D.C.: Dec. 2001).
[54] Department of Justice, National Institute of Justice, Domestic and
Sexual Violence Data Collection: A Report to Congress under the
Violence Against Women Act, NCJ-161405 (Washington, D.C.: July 1996).
[55] Justice Research and Statistics Association, Domestic Violence and
Sexual Assault Data Collection Systems in the States (Washington, D.C.:
Oct. 1999).
[56] Institute for Law and Justice, A Review of State Domestic Violence-
Related Legislation: A Law Enforcement and Prosecution Perspective
(Alexandria, Va.: Oct. 31, 2000).
[57] Department of Justice, BJS, Survey of State Procedures Related to
Firearms Sales, Midyear 2001, NCJ-192065 (Washington, D.C.: Apr. 2002).
[58] Historically, flags have been used to mark persons that have a
felony conviction in their criminal record, thus making felony firearms
disqualifiers more easily identifiable by law enforcement officials.
[End of section]
GAO‘s Mission:
The General Accounting Office, the investigative arm of Congress,
exists to support Congress in meeting its constitutional
responsibilities and to help improve the performance and accountability
of the federal government for the American people. GAO examines the use
of public funds; evaluates federal programs and policies; and provides
analyses, recommendations, and other assistance to help Congress make
informed oversight, policy, and funding decisions. GAO‘s commitment to
good government is reflected in its core values of accountability,
integrity, and reliability.
Obtaining Copies of GAO Reports and Testimony:
The fastest and easiest way to obtain copies of GAO documents at no
cost is through the Internet. GAO‘s Web site [hyperlink,
http://www.gao.gov] contains abstracts and fulltext files of current
reports and testimony and an expanding archive of older products. The
Web site features a search engine to help you locate documents using
key words and phrases. You can print these documents in their entirety,
including charts and other graphics.
Each day, GAO issues a list of newly released reports, testimony, and
correspondence. GAO posts this list, known as ’Today‘s Reports,“ on its
Web site daily. The list contains links to the full-text document
files. To have GAO e-mail this list to you every afternoon, go to
[hyperlink, http://www.gao.gov] and select ’Subscribe to daily E-mail
alert for newly released products“ under the GAO Reports heading.
Order by Mail or Phone:
The first copy of each printed report is free. Additional copies are $2
each. A check or money order should be made out to the Superintendent
of Documents. GAO also accepts VISA and Mastercard. Orders for 100 or
more copies mailed to a single address are discounted 25 percent.
Orders should be sent to:
U.S. General Accounting Office:
441 G Street NW, Room LM:
Washington, D.C. 20548:
To order by Phone:
Voice: (202) 512-6000:
TDD: (202) 512-2537:
Fax: (202) 512-6061:
To Report Fraud, Waste, and Abuse in Federal Programs Contact:
Web site: [hyperlink, http://www.gao.gov/fraudnet/fraudnet.htm]:
E-mail: fraudnet@gao.gov:
Automated answering system: (800) 424-5454 or (202) 512-7470:
Public Affairs:
Jeff Nelligan, managing director, NelliganJ@gao.gov:
(202) 512-4800:
U.S. General Accounting Office:
441 G Street NW, Room 7149:
Washington, D.C. 20548:
