FBI Criminal Justice Information Services Division s National Instant Criminal Background Check System (NICS) Section Federal Firearm Prohibitions Roberta A. Hatcher Legal Administrative Specialist NICS Business Unit July 2015 UNCLASSIFIED
The Brady Act The Brady Handgun Violence Prevention Act of 1993 (Brady Act) is the result of... The attempted assassination of former President Ronald Reagan. Permanent injuries sustained by Press Secretary James Brady. The Brady's lobby for stricter regulations in relation to the transfer of firearms. The Brady Act was approved by Congress on November 30, 1993, as an amendment to the Gun Control Act of 1968. 4/29/2015 UNCLASSIFIED 2
UNCLASSIFIED 3 Who Can Access the NICS? Federal Firearms Licensees (FFL) can contact the NICS Section to conduct background checks relative to firearm transactions. State Point-of-Contact (POC) agencies can access the NICS via a portal to conduct background checks for FFLs within their state. Access to the NICS for purposes unrelated to Title 18, United States Code (U.S.C.), Section 922(t) shall be limited.
NICS Participation 13 4 3 36 24 Full POC Contact State/Territory for All Firearm Background Checks including permits Partial-POC Contact State for Handgun & FBI for Long Gun Background Checks Partial-POC Contact State for Handgun Permit & FBI for Long Gun Background Checks Non-POC Contact FBI for All Firearm Background Checks Denotes that the State has at least one Alcohol, Tobacco, Firearms and Explosives (ATF) Qualified Alternate Permit. The permits are issued by local or state agencies. 4/29/2015 UNCLASSIFIED 4
UNCLASSIFIED 5 Types of Records Searched by NICS As of 04/17/2015 Interstate Identification Index Criminal Records 67,240,383 National Crime Information Center -Wanted Persons -Protection Orders -Immigration Violators -Protective Interest File -Foreign Fugitive -Supervised Release -National Sex Offender Registry -Gang File -Known/Appropriately Suspected Terrorist (KST) -Violent Person 5,490,567 Records NICS Index -Felony/Misdemeanor punishable by 2+ years -Indictment/Information -Fugitive from Justice -Controlled Substance -Mental Defective/Commitments -Illegal/Unlawful Aliens -Dishonorable Discharge -Renounced Citizens -Protection/Restraining Orders -Misdemeanor Crimes of Domestic Violence -State Prohibitions During the Background Check Process... 11,417,904 Records Department of Homeland Security U.S. Immigration and Customs Enforcement (ICE) -On all transactions initiated for Non-U.S. Citizens, an Immigration Alien Query will be requested through the ICE.
UNCLASSIFIED 6 A Sampling of NICS Transactions April 2015 100 POTENTIAL GUN BUYERS 71 PROCEEDS AT THE CALL CENTER 29 TRANSFERRED FROM THE CALL CENTER TO THE FBI NICS SECTION 20.5 IMMEDIATELY GIVEN A PROCEED OR A DENY 8.5 DELAYED FOR ADDITIONAL RESEARCH ULTIMATELY... 1.25 DENIALS FOR EVERY 100 BACKGROUND CHECKS
Federal Firearm Prohibitions 18 U.S.C. 922(g)(1)-(9) & (n) Convicted of a crime punishable by imprisonment for a term exceeding one year Fugitives from justice the subject of an active warrant Unlawful users of or addicted to any controlled substance Adjudicated as a mental defective or involuntarily committed to any mental institution Illegal or unlawful aliens Dishonorable discharge from the U.S. Armed Forces Renunciation of U.S. Citizenship Subjects of protection/restraining orders Misdemeanor crimes of domestic violence Under information or indictment for a crime punishable by imprisonment for a term exceeding one year 4/29/2015 UNCLASSIFIED 7
UNCLASSIFIED 8 Total Federal Denials November 30, 1998 April 24, 2015 Rank Prohibited Category Description Total Percent of Total 1 Convicted of a crime punishable by more than one year or a misdemeanor punishable by more than two years 625,356 56.86% 2 Fugitive from justice 115,498 10.50% 3 Misdemeanor crime of domestic violence conviction 108,063 9.83% 4 Unlawful user/addicted to a controlled substance 93,013 8.46% 5 State Prohibitor 52,420 4.77% 6 Protection/restraining order for domestic violence 45,928 4.18% 7 Under indictment/information 25,629 2.33% 8 Adjudicated mental health 13,920 1.27% 9 Illegal/unlawful alien 13,371 1.21% 10 Federally Denied Persons File 5,672 0.51% 11 Dishonorable Discharge 816 0.07% 12 Renounced U.S. Citizenship 61 0.01% Total Federal Denials 1,099,747 100.00%
UNCLASSIFIED 9 NICS Index Records As of April 24, 2015 Rank Prohibited Category Description Total Percent of Total 1 Illegal/unlawful alien 5,698,372 49.91% 2 Adjudicated mental health 3,381,941 29.62% 3 Convicted of a crime punishable by more than one year or a misdemeanor punishable by more than two years 1,672,488 14.65% 4 Fugitive from justice 400,977 3.51% 5 Misdemeanor crime of domestic violence conviction 106,777 0.93% 6 Under indictment/information 32,910 0.29% 7 Federally Denied Persons File 32,143 0.28% 8 Unlawful user/addicted to a controlled substance 31,700 0.28% 9 Renounced U.S. Citizenship 24,220 0.21% 10 State Prohibitor 15,567 0.14% 11 Protection/restraining order for domestic violence 10,438 0.09% 12 Dishonorable Discharge 10,371 0.09% Total Active Records in the NICS Index 11,417,904 100.00%
UNCLASSIFIED 10 Identifying Firearm Prohibitions in Drug Cases
UNCLASSIFIED 11 18 U.S.C. 922(g)(3) Defines a prohibited person as an individual: who is an unlawful user of or addicted to any controlled substance as defined in Section 102 of the Controlled Substances Act (21 U.S.C. 802)
21 U.S.C. 802(1) The term addict means: any individual who habitually uses any narcotic drug so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of narcotic drugs as to have lost the power of self-control with reference to his addiction. 4/29/2015 UNCLASSIFIED 12
ATF Regulation Title 27, Code of Federal Regulations (C.F.R.) Section 478.11 UNCLASSIFIED 13 Defines an unlawful user of or addicted to any controlled substance as: A person who uses a controlled substance and has lost the power of self-control with reference to the use of a controlled substance; and any person who is a current user of a controlled substance in a manner other than prescribed by a licensed physician.
UNCLASSIFIED 14 Definition of a Controlled Substance As defined in 21 U.S.C. 802 and 21 C.F.R. 1308, the term controlled substance includes but is not limited to marijuana, depressants, stimulants, and narcotic drugs. This does not include distilled spirits, wine, malt beverages, or tobacco. This does not include inhalant abuse such as huffing/sniffing glue, aerosols, etc.
UNCLASSIFIED 15 How the NICS Section Establishes a Drug Prohibition
UNCLASSIFIED 16 How the NICS Section Identifies a Current User The following are examples of a current user of a controlled substance: A person convicted of use or possession of a controlled substance within the past year; or A person with multiple arrests for use or possession of a controlled substance within the past five years, if the most recent arrest occurred within the past year; or A person found through a drug test to use a controlled substance unlawfully, provided the test was administered within the past year; or
UNCLASSIFIED 17 Current User Continued... A person who admits to use or possession of a controlled substance within the past year; or A current or former military service member who received recent disciplinary or other administrative action based on confirmed drug use. This includes the following: court-martial conviction, non-judicial punishment, or an administrative discharge based on drug use or drug rehabilitation failure.
Establishing Inference of Use In accordance with 27 C.F.R. 478.11, a conviction within the past year DOES NOT include probation before judgment, deferred prosecution, pretrial diversion, etc. Since there is no adjudication of guilt, these may not be used to satisfy the drug conviction requirements. Even though a guilty plea may be involved, this is not necessarily an admission of use of a controlled substance and may not, by itself, be used as an inference of current use or possession. UNCLASSIFIED 18
UNCLASSIFIED 19 Establishing Inference of Use Continued... Arrests with such dispositions should be treated as if they had no disposition at all and the incident report needs to be obtained to determine inference or current use or possession. Evidence of possession of a controlled substance within the past year could constitute a prohibitor even though the individual is actually convicted of a different offense.
UNCLASSIFIED 20 Establishing Inference of Use Continued... In this case, a field or chemical test must have been administered to establish the substance seized from the defendant was a controlled substance (marijuana, not oregano; cocaine, not powdered sugar; paraphernalia that tests positive for a controlled substance, etc.). Cannot use drug sniffing dog identification or officer experience to identify a controlled substance. These are examples only, not a complete listing.
UNCLASSIFIED 21 Affect of a Dismissal in Drug Case for NICS Purposes A dismissed charge is no longer considered an arrest as stated in examples for a pattern of use or possession. If researching for a disposition on a drug arrest within the past year and find that the charge was dismissed, but also gain knowledge that the individual was positively drug tested, or the substance possessed was field or chemical tested positive for controlled substance residue, this would be a disqualifier for the federal firearm drug prohibition as an inference of recent use or possession.
UNCLASSIFIED 22 Reduced Convictions Establishing Recent Use/Possession An arrest for a drug offense within the past year, with a conviction for a non-drug offense, would require research to determine if a field test or lab test was administered on the person and was found to be positive for controlled substances, or if the substance that was possessed at the time of the arrest was determined to be a controlled substance through a field test or lab test of the material.
UNCLASSIFIED 23 Examples of Drug Scenarios the NICS Section Will Research
Drug Paraphernalia Within the Past Year If an arrest for drug paraphernalia within the past year is present on an arrest record, the NICS Section must research to determine if the paraphernalia tested positive for residue. If the NICS Section is researching another charge and discovers a drug paraphernalia charge, the drug paraphernalia cannot be used as a disqualifier as an arrest. A drug paraphernalia charge within the past year can establish inference if it has been field tested or lab tested positive for residue of a controlled substance. Offenses involving drug paraphernalia may be at the felony level in some states and may qualify for a firearm prohibition under 18 U.S.C. 922(g)(1). 4/29/2015 UNCLASSIFIED 24
UNCLASSIFIED 25 Driving Under the Influence (DUI)/Public Intoxication, etc. In the majority of the states, DUI statutes include driving under the influence of drugs. The NICS Section researches DUI arrests to determine the substance of intoxication and if any abuse of a controlled substance as defined by federal law has occurred.
Drug Charge Not Within the Past Year with Conviction in the Past Year UNCLASSIFIED 26 The ATF has interpreted 27 C.F.R. 478.11 for a conviction for use or possession of a controlled substance within the past year as a conviction within the past year, although the use or possession (or date of arrest) may not be within the past year. If there is a drug arrest charge that is not within the past year, but the drug conviction is within the past year, the conviction can be used as a federal firearm drug prohibition.
UNCLASSIFIED 27 Probations Which Include Drug Testing Current probations are researched to determine if there are any requirements as a condition of the probation for drug testing. It must be verified if there are conditions regarding drug use and, if there are, whether he/she has tested positive for drugs within the past year. Active probation must be researched to determine if there are any conditions of the probation which prohibit subject from possessing a firearm.
UNCLASSIFIED 28 Prescription Drugs Prescription drugs may qualify under federal firearms drug prohibitions if the prescribed controlled substance is used in a non-prescribed manner. (27 C.F.R. 487.11) Prescription drugs may also qualify for federal firearm drug prohibitions if a person has them in his/her possession by unlawful means, such as forging a prescription, stealing a prescription medication, or obtaining a prescription drug by fraud.
UNCLASSIFIED 29 Who Actually Possessed the Drug Possession must be established when more than one individual is arrested for possession of a controlled substance found in his/her vehicle, or his/her home, or its curtilage. Evidence must establish who was in actual possession of the controlled substance when an incident involves more than one suspect. Ownership of communal property where a controlled substance was located cannot be used to establish possession by the owner of the property if more than one individual is present and/or charged at arrest.
UNCLASSIFIED 30 Materials to Make a Controlled Substance An arrest involving only the possession of materials to make a controlled substance does not qualify under this prohibitor. A controlled substance must exist or the subject must have admitted to actually making a controlled substance rather than attempting to make, i.e., possessing the materials but not completing manufacture. This does not eliminate the possibility of a state prohibitor for these types of offenses.
UNCLASSIFIED 31 Attempts and Conspiracies Attempt or Conspiracy to possess a drug/controlled substance does not meet federal firearm drug prohibition standards.
UNCLASSIFIED 32 NICS Practice Regarding Drug Card (Medical Marijuana States) If information is obtained that indicates the subject is in possession of a state-issued drug card, the NICS Section utilizes this to establish an inference of current use for a federal firearm drug prohibition. The information may be obtained by an admission by the individual that they have the drug card or by presenting a copy of the drug card within the past year. When a drug card is used as a photo identification to the FFL.
UNCLASSIFIED 33 NICS Practice Regarding Synthetic Drugs Per emergency orders of the Drug Enforcement Administration, dated May 1, 2011, and October 21, 2011, certain synthetic drugs, as amended in section 201 of the Controlled Substances Act (CSA), and their salts, isomers, and salts or isomers have been placed into Schedule I of the CSA and may qualify under federal prohibitor 922(g)(3). Most common product names to indicate potential Schedule I controlled substance involved are, but not limited to, K2, Spice, and Bath Salts.
UNCLASSIFIED 34 How You Can Assist the NICS Section Submit records to the NICS Index on individuals who have failed drug tests within the last year. Always provide drug test information on substances relative to drug cases and individuals involved in drug cases. Document any drug test information or admission of drug abuse in incident reports, court documents, plea agreements, etc. Establish firearm prohibitions as terms of sentence for pretrial interventions, deferred adjudications, deferred sentences, probation, etc.
UNCLASSIFIED 35 QUESTIONS?
UNCLASSIFIED 36 Contact Information Roberta A. Hatcher Legal Administrative Specialist NICS Section (304) 625-7363 roberta.hatcher@leo.gov The NICS Section s Legal Analysis Team E-mail: NICS_LegalResearch@ic.fbi.gov