State Participation in NICS
Firearm Background Checks
ERIC NELSON
Assistant Attorney General
Washington State Attorney General’s Office
November 2013
Federal Law Prohibitions
• Federal – 9 prohibitions
–
–
–
–
conviction greater than one year;
fugitive from justice;
unlawful user or addiction to any controlled substance;
adjudicated as a mental defective or committed to a mental
institution;
– illegal alien;
– dishonorable discharge;
– renounced U.S. citizenship;
– subject to DV restraining order; and
– convicted of misdemeanor DV.
18 USC 922(g)
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Federal law mental health prohibition
It shall be unlawful for any person— … who has
been adjudicated as a mental defective or who
has been committed to a mental institution; … to
ship or transport in interstate or foreign
commerce, or possess in or affecting commerce,
any firearm or ammunition; or to receive any
firearm or ammunition which has been shipped
or transported in interstate or foreign commerce.
18 U.S.C. 922(g)(4)(Gun Control Act of 1968).
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“Adjudicated as a mental defective”
Adjudicated as a mental defective.
(a) 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: (1) Is a danger to himself or to others;
or (2) Lacks the mental capacity to contract or manage his
own affairs.
(b) The term shall include-- (1) A finding of insanity by a court in
a criminal case; and (2) 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.
27 C.F.R. 478.11
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“Committed to a mental institution”
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.
27 C.F.R. 478.11
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National Instant Criminal Background
Check System (NICS)
• Operates on a national basis.
• Consolidates three databases (III, NCIC and
the NICS Index).
• Operates on a near real-time, 24/7 basis.
• NICS Index has more than 8.3 million records
as of 2012 – includes 1.8 million mental health
records.
• More than 10,000 mental health denials since
program inception in 1998.
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Who’s your point of contact (POC)?
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NICS Improvement
Amendments Act of 2007
• Waiver of state NCHIP matching fund
requirements for 90 percent record
completeness.
• Grants to states to upgrade automation and
identification systems.
• Sliding scale of penalties against Byrne criminal
justice grants for non-compliance with record
completeness.
• Conditions: “Reasonable estimate of records” and
federal certification of “relief from disabilities”
process.
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NICS Act Record Improvement Program (NARIP) Awards FY 2009-2012
State
2009
2010
Arizona
Connecticut
2011
2012
2009-2012
$582,932
$1,012,166
$1,595,098
$3,250,000
$1,650,000
$4,900,000
Florida
$3,159,228
$2,574,915
$1,400,000
$7,134,143
Idaho
$1,949,578
$1,206,010
$279,848
$3,435,436
Illinois
$1,209,500
$1,650,000
$2,859,500
$1,200,000
$1,200,000
$517,428
$1,907,609
$1,204,247
$1,204,247
$429,288
$429,288
Indiana
Kentucky
$1,390,181
Missouri
Nebraska
Nevada
$798,471
New Jersey
New York
$937,411
$798,471
$860,331
$2,772,560
$3,632,891
$5,994,588
$3,198,502
$10,130,501
North Dakota
Oregon
$205,973
$770,849
Texas
$2,000,000
$1,131,260
$751,537
$547,039
Virginia
$488,841
$2,506,731
$981,372
$2,500,000
$16,906,134
$20,123,472
$1,787,417
$764,100
$1,200,000
Wisconsin
$297,267
$3,902,109
$764,100
West Virginia
Total
$91,294
$1,200,000
$3,481,372
$11,123,112
$50,659,449
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Has the NIAA improved reporting?
• Increase in reporting (126,000 mental health
records in 2004 to 1.2 million in 2011) reflects the
efforts of 12 states.
• “[O]ur review suggests that the [NIAA] provisions
might not be providing the incentives that were
envisioned by the act.” p. 34.
GAO, July 2012, GAO-12-684
• Top reporting states per capita: VA, WA, MI, NY,
CA, TX, CO and MO.
Mayors Against Illegal Guns, Nov. 2011.
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State Laws That Require or Authorize the Reporting of Mental Health Records to NICS
As of January 1, 2013 (Source: CRS, April 15, 2013)
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What does a state reporting statute
look like?
“The convicting or committing court shall forward within three
judicial days after conviction or entry of the commitment order a
copy of the person's driver's license or identicard, or comparable
information, along with the date of conviction or commitment, to
the department of licensing. When a person is committed by court
order under RCW 71.05.240, 71.05.320, 71.34.740, 71.34.750, or
chapter 10.77 RCW, for mental health treatment, the committing
court also shall forward, within three judicial days after entry of the
commitment order, a copy of the person's driver's license, or
comparable information, along with the date of commitment, to
the national instant criminal background check system index,
denied persons file, created by the federal Brady handgun violence
prevention act (P.L. 103-159).”
RCW 9.41.047(1)(b).
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Is HIPAA a Barrier to Mental Health
Reporting to NICS?
• Courts are not covered entities -- avoids the
HIPAA issue altogether.
• For covered entities that report, primary HIPAA
exception is “required by law.” 45 C.F.R.
§164.512(a). Need an express state law
provision.
• Without an express provision, consider
exceptions for law enforcement purposes
(§164.512(f)) or disclosures to avert a “serious
threat to health or safety” (§164.512(j)).
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Look for a HIPAA
Privacy Rule Amendment
• HHS issued an Advance Notice of Public
Rulemaking, April 23, 2013.
• NASMHPD circulated an HHS questionnaire.
• Other groups such as NAMI, Electronic Privacy
Information Center and gun-rights groups
have commented.
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Where do we go from here?
• Streamline systems/gain efficiencies.
• HIPAA rule change may mean you don’t have
to wait for a state law change.
• How well do state law prohibitions work?
• Surrender laws.
• Don’t focus exclusively on persons committed
or adjudicated. Not statistically significant.
• Focus on treatment and prevention.
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