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The NICS Improvement Amendments Act of 2007
Questions and Answers on this page:
What is the NICS Improvement Amendments Act of 2007?
The NICS Improvement Amendments Act of 2007, Pub. L. 110-180 ("NICS Improvement Act"), was signed into law by the President on January 8, 2008. The NICS Improvement Act amends the Brady Handgun Violence Prevention Act of 1993 ("the Brady Act") (Pub. L. 103-159), under which the Attorney General established the National Instant Criminal Background Check System (NICS). The Brady Act requires Federal Firearms Licensees (FFLs) to contact the NICS before transferring a firearm to an unlicensed person for information on whether the proposed transferee is prohibited from receiving or possessing a firearm under state or federal law.
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Why was the NICS Improvement Act enacted?
The NICS Improvement Act was enacted in the wake of the April 2007 shooting tragedy at Virginia Tech. The Virginia Tech shooter was able to purchase firearms from an FFL because information about his prohibiting mental health history was not available to the NICS and the system was therefore unable to deny the transfer of the firearms used in the shootings. The NICS Improvement Act seeks to address the gap in information available to NICS about such prohibiting mental health adjudications and commitments and other prohibiting backgrounds. Filling these information gaps will better enable the system to operate as intended to keep guns out of the hands of persons prohibited by federal or state law from receiving or possessing firearms.
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What is the NICS?
The NICS is administered by the Federal Bureau of Investigations (FBI). A NICS check includes a check of three databases maintained by the FBI, including the:
- Interstate Identification Index (III), a database of criminal history record information,
- National Crime Information Center (NCIC) which includes information on persons subject to civil protection orders and arrest warrants, and
- NICS Index which includes the information contributed by federal and state agencies identifying persons prohibited from possessing firearms who are not included in the III or NCIC, such as persons with a prohibiting mental health history or who are illegal or unlawful aliens.
If a NICS check identifies a person as falling within a prohibited category, the FBI advises the FFL that the transfer is "denied." Individuals can appeal denials and seek the correction of the information in the FBI databases by either applying to the FBI or the federal or state agency that contributed the information to the FBI.
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What are the federal categories of persons prohibited from receiving or possessing firearms?
The Gun Control Act of 1968, as amended, 18 U.S.C. 921, et seq., establishes the following categories of persons who are prohibited from receiving or possessing a firearm — any person pursuant to 18 U.S.C. 922(g) and (n) who:
- has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;
- is a fugitive from justice;
- is an unlawful user of or addicted to any controlled substance;
- has been adjudicated as a mental defective or who has been committed to a mental institution;
- is an illegal or unlawful alien or a non-immigrant alien (with certain exceptions);
- has been discharged from the Armed Forces under dishonorable conditions;
- having been a citizen of the United States, has renounced his citizenship;
- is subject to a domestic violence protection order that meets certain requirements;
- has been convicted in any court of a misdemeanor crime of domestic violence; or
- is under indictment for a crime punishable by imprisonment for a term exceeding one year.
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How are the terms "adjudicated as a mental defective" and "committed to a mental institution" defined?
Section 922(g)(4), Title 18, United States Code, prohibits the receipt or possession of firearms by an individual who has been "adjudicated as a mental defective" or "committed to a mental institution." Regulations issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), 27 C.F.R. § 478.11, define these terms as follows:
Adjudicated as a mental defective.
(1) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease:
- Is a danger to himself or to others; or
- Lacks the mental capacity to contract or manage his own affairs.
(2) The term shall include —
- A finding of insanity by a court in a criminal case; and
- Those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. 850a, 876b.
Committed to a mental institution. A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment to a mental institution involuntarily. The term includes commitment for mental defectiveness or mental illness. It also includes commitments for other reasons, such as for drug use. The term does not include a person in a mental institution for observation or a voluntary admission to a mental institution.
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Does the NICS maintain a database of medical records or information on an individual's mental health condition, diagnosis, or treatment?
No. Only records of court or other lawful authority findings or orders that the meet the above ATF definition, not medical records or other details underlying the findings or orders, are entered in the NICS Index. The records entered in the NICS Index include only a name and other biographic identifiers to identify a person in this category.
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Why is it important to have information about mental health adjudications or commitments in a national database?
When information about such adjudications and commitments is provided to the NICS, the FBI can deny firearms transactions to persons with disqualifying mental health histories, both in the state where the record was created and in other states to which the individual may have subsequently moved.
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What provisions are made to ensure the privacy of the information identifying persons with disqualifying mental health adjudications or commitments?
The information in the NICS is subject to the Privacy Act and the privacy of the information is protected in a number of ways. The only responses provided by the NICS to a request for a NICS check is "Proceed," "Denied" or "Unresolved." In cases of a "Denied" response, neither the general prohibiting category nor information about the specific event that places an individual in that prohibited category is provided to the FFL. The individual, however, is able to request information about the reason for the denial and can appeal the denial and seek to correct incomplete or inaccurate information in the system upon which the denial is based.
In addition, as noted above, the information identifying mental health adjudications or commitments contributed by federal and state agencies is maintained in the NICS Index. The regulations governing the NICS limits the use of the NICS Index to: (1) checks under the Brady Act by FFLs of proposed firearms transferees; (2) checks by federal, state, or local criminal justice agencies in connection with the issuance of a firearms-related or explosives-related license or permit; and (3) requests by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in connection with civil or criminal law enforcement relating to the federal Gun Control Act (18 U.S.C. Chapter 44) or National Firearms Act (26 U.S.C. Chapter 53). Checks of the NICS Index for general law enforcement purposes are not permitted under the regulations. See 28 CFR. 25.6(j).
Finally, the NICS Improvement Act requires the Attorney General to work with state and local law enforcement and the mental health community to establish regulations and protocols specifically for protecting the privacy of information in the NICS relating to mental health. The Justice Department plans to engage in the required consultations on these regulations and protocols in the near future.
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How does the NICS Improvement Act improve the information available for NICS checks?
The NICS Improvement Act seeks to improve the information available to the NICS, so that the system can more accurately identify prohibited persons, by:
- Enhancing the Brady Act requirement that federal departments and agencies provide relevant information to the NICS; and
- Providing incentives to states to submit complete information to the Attorney General on persons prohibited from receiving or possessing firearms through —
- Authorizing new grant programs for state executive and judicial branch agencies to improve information sharing with NICS; and
- Providing for Byrne Justice Assistance Grant (JAG) program penalties for states that do not comply with the Act's record completeness goals.
Although the NICS Improvement Act authorizes new grant programs, those grant programs have not yet been funded. Additionally, the Byrne grant penalties are deferred until 2011, are discretionary from 2011 to 2017, and become mandatory in 2018.
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What does the NICS Improvement Act do?
FOR STATES: The NICS Improvement Act has provisions that require states to meet specified goals for completeness of the records submitted to the Attorney General on individuals prohibited by federal law from possessing firearms. The records covered include automated information needed by the NICS to identify felony convictions, felony indictments, fugitives from justice, drug arrests and convictions, federally prohibiting mental health adjudications and commitments, domestic violence protection orders, and misdemeanor crimes of domestic violence.
The Act provides for a number of incentives for states to meet the goals it sets for greater record completeness.
- First, the Act allows states to obtain a waiver, beginning in 2011, of the National Criminal History Record Improvement Program's (NCHIP) state matching requirement, if a state provides at least 90 percent of its records identifying the specified prohibited persons.
- Second, the Act authorizes grant programs (not yet funded), to be administered consistent with NCHIP, for state executive and judicial agencies to establish and upgrade information automation and identification technologies for timely submission of final criminal record dispositions and other information relevant to NICS checks. Up to 5 percent of the grants may be reserved for Indian tribal governments and judicial systems.
- Finally, the Act provides for discretionary and mandatory Byrne grant penalties for non-compliance with record completeness requirements: after 3 years, 3 percent may be withheld in the case of less than 50 percent completeness; after 5 years, 4 percent may be withheld in the case of less than 70 percent completeness; and after 10 years, 5 percent shall be withheld in the case of less than 90 percent completeness (although the mandatory reduction can be waived if there is substantial evidence of the state making a reasonable effort to comply).
IN THE FEDERAL SYSTEM: The NICS Improvement Act creates an independent statutory obligation for federal agencies to report records identifying prohibited persons to the Attorney General. It also requires that federal agencies that issue prohibiting mental health adjudications or commitments establish a program under which a person subject to such an adjudication or commitment can apply for relief from his or her firearms disability according to standards under 18 U.S.C. 925(c). Additionally, the Act provides that a prohibiting adjudication or commitment issued by a federal agency or department may be nullified in certain instances by a qualified set aside, expungement, release from mandatory treatment, or other specified means.
CHANGE TO THE MENTAL HEALTH PROHIBITOR: Prior to the NICS Improvement Act, section 922(g)(4) was effectively a lifetime prohibition on possessing firearms by any person "who had been adjudicated a mental defective or who has been committed to a mental institution." The Act, however, provides that when relief is granted under a federal or state relief from disabilities program that meets the requirements of the Act, or when certain automatic relief conditions are met with respect to persons federally adjudicated or committed, the event giving rise to the mental health disability is "deemed not to have occurred" for purposes of the federal firearm prohibition.
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What are the conditions that a state must meet to be eligible for the newly authorized (but not yet funded) NICS Improvement Act grants?
If the grant programs authorized under the Act are funded, there are two conditions that each state must satisfy before being eligible to receive grants:
- First, a state must provide to the Attorney General a "reasonable estimate," based on a methodology established by the Attorney General, of records subject to the Act's completeness requirements; and
- Second, a state must certify, to the satisfaction of the Attorney General, that the state has implemented a program permitting persons who have been adjudicated a mental defective or committed to a mental institution to obtain relief from the firearms disabilities imposed by law as a result of such adjudication or commitment. This relief must be granted, in accordance with principles of due process, by a state court, board, commission, or other lawful authority. The relief must be based on a finding that the circumstances of the disability and the person's record and reputation are such that the person will not be likely to act in a manner dangerous to the public safety and that the granting of relief would not be contrary to the public interest.
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Why do states have to create relief from disabilities programs for the mental health prohibitor?
Before the enactment of the NICS Improvement Act, a person's adjudication as a mental defective or commitment to a mental institution was effectively a lifetime prohibition. Concerns were expressed to Congress about the permanence of this prohibitor and the life-long effect it would have on persons whose mental health adjudication or commitment records would be provided to the NICS under the Act's provisions. To address these concerns, the Act included not only provisions to require or promote the sharing of information about this disability for use by the NICS, but also provisions that require or authorize the establishment of federal and state programs that allow individuals to seek relief from the federal mental health firearms disability.
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Where can a state get further information on the requirements of the relief from disabilities program required to be eligible for grant funding under the newly authorized (but not yet funded) grant program?
ATF is available to answer questions about whether existing state laws meet the standards contemplated for the state relief from disability programs contemplated in the NICS Improvement Act. ATF is also available to provide technical assistance to states seeking to establish such programs under the Act. State questions and requests for assistance can be directed to ATF through the Justice Department's point-of-contact Jennifer Korn, Director of the Office of Intergovernmental and Public Liaison, United States Department of Justice – OIPL@usdoj.gov.
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How should a state calculate the "reasonable estimate" of records subject to the Act's completeness requirements?
The Act requires the Attorney General to establish for use by the states a methodology to calculate estimates of the total number of records in each of the subcategories of records subject to the grant program's" reporting requirements. The Justice Department's Bureau of Justice of Statistics (BJS) has developed a proposed data collection instrument setting forth this methodology to send to each state's NCHIP point of contact agency. In doing so, BJS coordinated with representatives of the state criminal justice information repositories, state court administrators, the National Center for State Courts, the National Association of State Mental Health Directors, and others to obtain input on state record-keeping practices to help inform the development of a methodology. The proposed data collection, State Estimates of Available Records Information Collection, which has been published for public comment in the Federal Register is now available.
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What are the authorized purposes for use of grant funds under the Act?
FOR STATE AND TRIBAL GOVERMENTS: Section 103 of the Act, regarding implementation assistance to the states, provides that the grants "shall be used by the States and Indian tribal governments, in conjunction with units of local government and State and local courts, to establish or upgrade information and identification technologies for firearms eligibility determinations."
The law provides that grant to states or Indian tribes may only be used to —
- Create electronic systems, which provide accurate and up-to-date information which is directly related to checks under the NICS, including court disposition and corrections records;
- Assist states in establishing or enhancing their own capacities to perform NICS background checks;
- Supply accurate and timely information to the Attorney General concerning final dispositions of criminal records to databases accessed by NICS;
- Supply accurate and timely information to the Attorney General concerning the identity of persons who have a federally prohibiting mental health adjudication or commitment;
- Supply accurate and timely court orders and records of misdemeanor crimes of domestic violence for inclusion in federal and state law enforcement databases used to conduct NICS background checks;
- Collect and analyze data needed to demonstrate levels of state compliance with the Act; and
- Maintain the relief from disabilities program in accordance with section 105, but not less than 3 percent and no more than 10 percent of each grant shall be used for this purpose.
FOR STATE COURT SYSTEMS: Section 301 of the Act, regarding grants to state court systems for the improvement of automation and transmittal of disposition records, provides that grants shall be made to each state, consistent with state plans for the integration, automation, and accessibility of criminal history records, for use by the state court system to improve automation and transmittal to federal and state repositories of:
- criminal history dispositions;
- records relevant to determining whether a person has been convicted of a misdemeanor crime of domestic violence or a prohibiting domestic violence protection order; and
- prohibiting mental adjudications and commitments.
The law provides that the amounts granted shall be used by the state court system only to —
- carry out, as necessary, assessments of the capabilities of state courts to automate and transmit arrest and conviction records, court orders, and mental health adjudications or commitments to federal and state record repositories; and
- implement policies, systems, procedures to automate and transmit arrest and conviction records, court orders, and mental health adjudications or commitments to federal and state record repositories.
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Doesn't the federal government already have a program to improve automation for information used for firearm eligibility checks?
Recognizing the need to automate state record systems that contribute most of the relevant information to the FBI record systems that would be checked by the NICS, the Brady Act established NCHIP, a program of grants to be used by the states to create or improve computerized criminal history record systems, assist in the transmittal of criminal records for use by the NICS, and improve access to the NICS. NCHIP is administered by the Department's Office of Justice Programs through the Bureau of Justice Statistics. At the state level, NCHIP grants are administered by state agencies designated by the Governor for this purpose. Since 1995, NCHIP has provided over $500 million in grants to the states to improve the automation of their record systems that contribute to the FBI information used in NICS checks.
Notwithstanding these efforts under NCHIP and the tremendous progress the state and federal criminal justice information repositories have made in record automation since 1995, the databases checked by the FBI are still missing significant percentages of relevant data that originate in the states, including final dispositions of records of arrests for prohibiting offenses, records of convictions for domestic violence misdemeanor offenses, and information identifying persons with prohibiting domestic violence protection orders or with disqualifying mental health adjudications and commitments.
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How are the newly authorized (but not yet funded) grant programs different than NCHIP?
The NICS Improvement Act grant programs do not supplant NCHIP. Rather, the NICS Improvement Act grants are to be made in a manner "consistent with" and "in accordance with" NCHIP. The major difference from NCHIP is that the NICS Improvement Act grants may only be used for specified purposes that are related to achieving the completeness goals for the records directly related to NICS checks. In addition, the NICS Improvement Act authorizes a separate grant program for funding that is dedicated to be use by state courts systems, where most of the disposition information missing from the national repositories originates.
For further information on any of these topics, please email Jennifer Korn, Director of the Office of Intergovernmental and Public Liaison, United States Department of Justice –OIPL@usdoj.gov.
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