Understanding the National Instant Criminal Background Check System (…in 1 hour or less) Becki Goggins Director of Law and Policy, SEARCH National Association for Justice Information Systems – 2016 Annual Conference November 2, 2016

What is NICS? National Instant Criminal Background Check System (NICS) Mandated by the Brady Handgun Violence Prevention Act of 1993 (Brady Act) Launched by the FBI on November 30, 1998 through its Criminal Justice Information Services (CJIS) Division

What is a NICS Check? How checks are performed Checks are name/descriptive data-based  ATF Form 4473 Telephone v. E-Check Allowable uses of NICS System Firearm transfers by Federal Firearms Licensees (FFL’s) Firearm-related permits Explosive-related permit or license ATF inquiries for Gun Control Act or National Firearms Act Disposition of Firearms

Point of Contact v. Non-POC States 13 Full POC States - CA, CO, CT, FL, HI, IL, NV, NJ, OR, PA, TN, UT, VA 7 Partial POC States 4 contact state for handgun sales and FBI for long gun - MD, NH, WA, WI 3 contact state for handgun permits and FBI for long guns - IA, NE, NC 36 states and territories rely on FBI NICS Section for all firearms background checks 25 ATF-Qualified Alternate Permit States permits in lieu of NICS background check for the duration of the permit

Point of Contact States

Where are records located? Interstate Identification Index (III) National Crime Information Center (NCIC) NICS Index Immigration and Customs Enforcement (ICE) Courts State Warrants File NICS Query Point of Contact (POC) State State Protection Orders Other Databases

Where are records located? Interstate Identification Index (III) National Crime Information Center (NCIC) NICS Index Immigration and Customs Enforcement (ICE) NICS Query Non-POC State

Interstate Identification Index (III) Accesses criminal history records from all 50 states States maintain these records Contains most common disqualifier (felony convictions) Contains information about misdemeanors (including misdemeanor crimes of domestic violence) May contain dispositions related to mental health adjudication to include not guilty by reason of insanity

National Crime Information Center (NCIC) The NICS searches the following NCIC files: Wanted Persons Protection Orders Immigration Violators Protective Interest File Foreign Fugitive National Sex Offender Registry File Known or Suspected Terrorist File Violent Person

National Crime Information Center (NCIC)-NICS Denied Transaction File NICS denied transactions available on NCIC via a QND query Rolling six months work of data Soon to include all NICS denied data available to the NICS for all purposes (firearm transfer, firearm-related permits, disposition of firearms, etc.) Also, soon to be available on NCIC via a QW query Benefits: Increase officer safety Increase public safety Investigative purposes Appropriate action can be taken

NICS Index Most misunderstood database Certain records are only available through the NICS Index Others are most appropriately placed in III or NCIC Contains over 14 million active records in 11 files related to persons who are pre-determined to have firearms prohibitions

NICS Index Files Convicted of crime punishable by a term of imprisonment for over one year or a misdemeanor punishable by a term of imprisonment for over two years Fugitive from justice (warrants) Unlawful user of or addicted to controlled substance Adjudicated as a mental defective or committed to a mental institution* Is illegally or unlawfully in the United States Dishonorable discharges Renounced U.S. citizenship* Protection orders for intimate partners or children of intimate partners Conviction for certain misdemeanor crimes of domestic violence Under indictment for a crime punishable by imprisonment for a term exceeding one year State prohibitors* Convictions should only be placed in the NICS index if not available in III – e.g., dispositions without arrests, dispositions lacking necessary information to be placed in III. Warrants and POs should only be placed in NICS if not in NCIC. Not all DV convictions count: A person convicted in any court of a misdemeanor crime which includes the use or attempted use of physical force or threatened use of a deadly weapon and the defendant was the spouse, former spouse, parent, guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited in the past with the victim as a spouse, parent, guardian or similar situation to a spouse, parent or guardian of the victim. *May only be available in NICS Index

ICE Identifies persons in United States illegally or unlawfully Only searched for non-U.S. citizens attempting to receive firearms in the U.S.

Recent Success Strategies for Increasing Records Available to the NICS – SEARCH/NCSC Research Bulletins

Making Mental Health Records Available for NICS Checks Increased focus after Virginia Tech shooting tragedy in 2007 State automation strategies Automating how criminal dispositions are sent to III and the NICS Index Automating the transfer of mental health information from the courts, through the criminal history repository, to the NICS Index Establishing connectivity from mental health databases (e.g., public mental health hospitals, state health agency) where records are held through the criminal history repository, to the NICS index Automating all mental health record reporting through a single central database The National Instant Criminal Background Check System (NICS) Act Record Improvement Program (NARIP) was created pursuant to the NICS Improvement Amendments Act of 2007, Pub. L. 110-180 (NIAA or the Act) which was signed into law on January 8, 2008, in the wake of the April 2007 shooting tragedy at Virginia Tech. The Virginia Tech shooter was able to purchase firearms from a Federal Firearms Licensee (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 NIAA through the NARIP program seeks to address the gap in information available to NICS about such prohibiting mental health adjudications and commitments, and other prohibiting factors. 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.

Success Strategy # 1 Problem: Lack of central repository for involuntary mental health commitments Solution: Automated NICS Record Transmission System Allows courts and mental health facilities to electronically transfer records to the NICS Index Eliminates need for duplicate data entry by creating submission specifications for contributing entities Uses submission specification service to impose quality control standards on submissions

Success Strategy #2 Problems Local courts manually recorded involuntary commitments, but this information was not available to Administrative Office of Courts (AOC) and/or criminal history repository No centralized view to see if records were reported at the federal level Solution: Civil Commitment Automated Tracking System Create statewide web application to capture commitments at the local level Ensure that NICS data elements are captured and transferred automatically

Mental Health Records in the NICS Index First year of NARIP Funds # of records available has increased by 1,600% while # of denials has increased by 285% in the last decade.

Making Protection Order Information Available for NICS Checks Challenges to including protection orders in NCIC 24/7 hit confirmation NCIC requirement Lack of mandatory information from the courts Courts often cannot submit directly to the NICS Index Must be able to verify that protection order has been served States have created state protection order files as an alternative to entering into NCIC Less strict requirements Not available nationally if a victim cannot produce a hard copy of a protection order, then many jurisdictions require law enforcement to verify the protection order through NCIC. In order to do this, the officer or dispatcher must verify the validity of the record by contacting the originating agency that entered the record. Once a record is entered into NCIC, the originating agency is required to provide “hit confirmations” 24 hours a day, 7 days a week.6 This presents a problem if a court is the custodian of record for the protection order, as most courts are not staffed 24/7.

Success Strategy # 1 Problem: Courts enter protection orders into their Electronic Records Management Systems (ERMS), but cannot respond to 24/7 hit confirmations Solution: Allow law enforcement agencies to access court documents Take advantage of NCIC policy for agencies using ERMS systems View of scanned PDF documents Access to source RMS data Synchronization of records Make electronic version of protection orders available to law enforcement 2/47 The first policy was approved by the FBI in 2003 and in 2008, 2012, and 2013 the NCIC policies regarding information transmitted via ERMS were updated substantially. The current guidance specifies that second party checks and validation can be performed either manually or by synchronization of databases, and hit confirmation requests may be confirmed using the ERMS because it is considered to be the "source document." These changes were intended to accommodate the use of scanned documents and electronic databases (including court databases), encourage the reporting of information to NCIC, and still preserve the quality and accuracy of NCIC records.12 Allowing for database synchronization and electronic documentation for hit confirmations is particularly helpful for submitting protection orders to NCIC, since protection orders are often difficult to manually track and validate given their dynamic nature The first policy was approved by the FBI in 2003 and in 2008, 2012, and 2013 the NCIC policies regarding information transmitted via ERMS were updated substantially. The current guidance specifies that second party checks and validation can be performed either manually or by synchronization of databases, and hit confirmation requests may be confirmed using the ERMS because it is considered to be the "source document." These changes were intended to accommodate the use of scanned documents and electronic databases (including court databases), encourage the reporting of information to NCIC, and still preserve the quality and accuracy of NCIC records.12 Allowing for database synchronization and electronic documentation for hit confirmations is particularly helpful for submitting protection orders to NCIC, since protection orders are often difficult to manually track and validate given their dynamic nature. The database that supports the DV Registry includes a scanned copy of the protective order and petition. Staff in both magistrate court and family court scan DV protective orders into the database within minutes of when they are issued by a court. Throughout the day, the computer system pulls those new orders, formats them, and submits them through the West Virginia State Police to NCIC. When an officer in the field runs a name through the NCIC and there is a "hit" for a protective order, the officer is required to confirm the data from the original source within ten minutes. Because West Virginia courthouses are not open 24/7, it was not previously possible to confirm a "hit" for a protective order. Now officers in West Virginia State Police detachments and 911 centers are able to access the scanned image of the protective order and confirm its existence and effective date. Because these centers are open around the clock, they can provide hit confirmations at any time. NCIC and state policies and procedures allow the website to be used for hit confirmation, service, and as an arrest tool without having to confirm whether the record is still active with the courthouse first

Success Strategy # 2 Problem: Non-unified court system makes it difficult to locate domestic violence protection orders Solution: Create single domestic violence registry database Allow courts to submit electronically via existing ERMS or via web portal interface Automatically submit records to NCIC, NICS DV file or NICS state prohibitor file based on state/local policies Protection orders State prohibitors Deploy direct inquiry functionality for non-court agency staff (e.g. FBI NICS staff) in the protection order registry

Protection Order Records Available for Firearms Background Checks NCIC and NICS entries are available nationally. State records are only useful to POC states.

Protection Orders in the NICS Index

Making Fugitives from Justice Records Available for NICS Checks Reasons many warrants are not entered into NCIC Workload associated with NCIC record validation requirements Hit-confirmation requirements Warrant from the court lacks necessary information (data elements) to meet NCIC requirements State systems allow multiple warrant for a single person Extradition and transportation expenses Fluid nature of warrant records Note: the mere presence of a non-traffic warrant is the basis for denial – even if it doesn’t meet ATF standard for a fugitive from justices. The are an administrative – not adjudicative – agency.

Success Strategy #1 eWarrants System can enforce entry of mandatory data elements for NCIC System can automatically route warrants to NCIC or NICS depending on local policies Automates exchange of warrants in state and national files Allows agencies to interact via a website with a centralized eWarrants tracking system, providing information and tracking the progress of a warrant as it moves through the approval and service process

Warrant and Wanted Person File Record Counts

Fugitive From Justice (Warrant) Records in the NICS Index

Illegal Controlled Substance Use Records Available in III Arrests for use or possession of a controlled substance within the past year Multiple arrests for use or possession of a controlled substance within the past five (5) years if the most recent arrest occurred within the past year Convictions for use or possession of a controlled substance within the past year (regardless of offense type) Convictions for possession of drug paraphernalia within the past year

Illegal Controlled Substance Use Records Available in the NICS Index Persons who test positive for use of a controlled substance within the past year Persons who admit to the use of a controlled substance within the past year Includes persons in states where recreational or medical marijuana use is considered legal Persons in possession of a medical marijuana card to include one year after the expiration

States Submitting Illegal Drug Use Records to the NICS Index > 1,000 records – 4 states, DC Court Services and Offender Supervision Agency (CSOSA), DC Pretrial Services Agency (PSA) 100-1000 records – 3 states 10-99 records – 12 states 1-9 records – 4 states Zero records – 27 states

Challenges to Submitting Illegal Drug Use Records Lack of centralized repository for failed drug tests Problem solving courts State laws for medical and recreational marijuana

Success Strategy # 1 Identify high volume drug screening facility that conducts drug tests for pretrial and probation clients All results are entered in centralized RMS as a part of the regular business process Positive drug screens are placed in a queue and submitted to NICS via batch process NICS submissions are automatically set to expire in one year There is a process to remove false positive manually, but hardly ever needed.

Success Strategy # 2 Include information about NICS prohibitors in state- certified courses for law enforcement Include block on all NICS prohibitors Ensure that illegal drug use prohibitions are discussed in detail – including information about medical marijuana Provide Officers with multiple ways to enter illegal drug use records Faxing form to FBI NICS Section State Law Enforcement Information Network (LIEN) Law Enforcement Enterprise Portal (LEEP)

Unlawful Drug Use Records in the NICS Index

How do we pay for it?

Funding Opportunities Bureau of Justice Statistics (BJS) National Criminal History Improvement Program (NCHIP) NICS Act Record Improvement Program (NARIP)

NCHIP Awards Only available to states that has submitted NICS program estimates and who have an ATF-approved relief from disabilities program. 29 states currently qualify. Heavy focus on MH records, but may be used for other purposes.

NARIP Awards Only available to states that has submitted NICS program estimates and who have an ATF-approved relief from disabilities program. 29 states currently qualify. Heavy focus on MH records, but may be used for other purposes.

Want to learn more about strategies for increasing records available in the NICS? Research briefs BJS, SEARCH and the National Center for State Courts (NCSC) Current Publications Mental Health Records https://www.ncjrs.gov/pdffiles1/bjs/grants/249793.pdf Protection Orders https://www.ncjrs.gov/pdffiles1/bjs/grants/249864.pdf More publications coming soon… Check out www.search.org We are also working on publications regarding warrants/fugitives from justice, the impact of biometric technology advances on NICS checks and reporting illegal controlled substance use to the NICS Index.

Please refer questions to: Thank You! Please refer questions to: Becki Goggins becki.goggins@search.org 334.201.3001