Background Checks for Firearm Transfers, 2005

by United States Department of Justice, Office of Justice Programs, Bureau of Justice Statistics

U.S. Department of Justice

Office of Justice Programs

Bureau of Justice Statistics

Background Checks for Firearm Transfers, 2005

November 2006, NCJ 214256

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Michael Bowling, Ph.D.

Gene Lauver

Regional Justice Information Service

Matthew J. Hickman, Ph.D.

Devon B. Adams

Bureau of Justice Statistics

Highlights

Nearly 70 million background checks conducted under the Brady Act through 2005; over 57 million since the permanent provisions took effect

• 1.6% of the 8.3 million applications for firearm transfers

or permits in 2005 were rejected by the FBI (66,700 applications)or State and local agencies(65,200 applications).

• Among State and local checking agencies in 2005, 46% of all

rejections for firearm transfers (about 30,000 applications) were due to a felony conviction or indictment.

• About 15% of State and local rejections(10,000 applications)

were due to a domestic violence misdemeanor conviction or restraining order.

• The Bureau of Alcohol, Tobacco, Firearm and Explosive's(ATF)

field offices investigated 9,575 National Instant Criminal Background Check System(NICS)denials that were referred by the FBI in 2005.

• In 2005 agencies reported 1,400 arrests of persons denied

a firearm or a permit.

• In 2005 U.S. attorney offices accepted for prosecution 135

NICS denial cases investigated by ATF.

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The Brady Handgun Violence Prevention Act(Brady Act)mandates criminal history background checks on persons applying to purchase firearms from federally licensed firearm dealers. The act established the National Instant Criminal Background Check System (NICS) and requires a background check by the Federal Bureau of Investigation (FBI)or a State point of contact(POC)on persons applying to receive firearms from a Federal Firearm Licensee (FFL).

In order to provide national estimates of the total number of applications and rejections resulting from the Brady Act and similar State laws, the Bureau of Justice Statistics (BJS) in 1995 began the Firearm Inquiry Statistics Program (FIST). The FIST program collects information on background checks conducted by State and local agencies, and combines this information with FBI NICS transaction data.

In 2005 about 8.3 million applications for firearm transfers or permits were subject to background checks under the Brady Act and similar State laws. This is an increase of 2.4% from the 8.1 million applications in 2004. The FBI processed nearly 5.0 million of these applications (60%), and State and local agencies processed 3.3 million (40%).

8.3 million background checks conducted nationwide in 2005; nearly 70 million since 1994

Nearly 70 million applications for firearm transfers or permits were subject to background checks under the NICS.

• • • For greater detail on the National Instant Criminal

Background Check System (NICS), see Components of the national firearm check system on page 9.*** During the interim period of the Brady Act (1994-1998), an estimated 12.7 million applications were checked. Most of these applications were for handgun transfers. Background checks for long guns were included under the permanent provisions of the Brady Act (effective November 1998).

An estimated 1.4 million applications to purchase a firearm were rejected between 1994 and 2005, or 1.9% of all applications. In 2005 an estimated 132,000 applications, or 1.6%, were rejected. (See Prohibited persons on page 8 for more detail on factors that disqualify an applicant.)

State and local agencies conducted 3.3 million background checks in 2005

State systems for approval of a prospective firearm purchaser can be classified as instant check, purchase permit, exempt carry permit, or other approval systems. The FIST survey included applications for two types of State permits--purchase and exempt carry permits.

State agencies conducted over 1.9 million instant checks in 2005, and about 40,000 (2%) of the applications were rejected. From 1999 to 2005 State instant approval systems received 15 million applications, rejecting 386,000 (2.6%).

Instant check systems require a seller to transmit the applicant's information to a checking agency by telephone or computer. The checking agency is required to respond to the seller at once or as soon as possible(generally within 3 business days).

In 2005 State and local agencies received 624,000 applications for purchase permits. Around 15,000, or 2.4%, were rejected. From 1999 to 2005, 5 million applications for purchase permits were received by State and local agencies, of which 107,000 were rejected (2.1%).

Purchase permit systems require firearm purchasers to obtain, after a background check, a government-issued document(such as a permit, license, identification card, or other document) that must be presented to a seller in order to receive a firearm. Most agencies issuing purchase permits operate under State statutes that allow between 7 and 30 days to complete a background check.

Ten States reported complete statewide data on exempt carry permits for 2005. These agencies received 155,000 exempt carry permit applications, of which 3,600 were rejected (2.3%).

Local agencies received 178,000 applications for exempt carry permits and rejected 2,200 (1.3%).

From 1999 to 2005 State and local agencies received 2.4 million applications for exempt carry permits, rejecting 47,000 or about 2%.

An exempt carry permit is not required for purchase but may be used to exempt the holder from a background check at the point of sale. A permit is exempt if it is issued after a check that includes the NICS and meets other requirements of the Brady Act under a Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) regulation and 18 U.S.C. 922(t).

Agencies issuing ATF-approved exempt carry permits usually request a check by sending information to the FBI. Indiana and Minnesota carry permits are only exempt under State law.

In 2005 other types of approval systems processed 447,000 applications, predominately in California, and rejected 4,000(1%). From 1999 to 2005 these systems received 3.2 million applications, rejecting 33,000 (1%).

Other approval systems require a seller to transmit the applicant's information to a checking agency by mail, telephone, or computer. The checking agency is not required to respond immediately but must respond before the end of a State statutory time limit, typically within 7 to 10 days.

FBI rejection rates affected by separate State or local background check requirements

In States where the FBI conducted both long gun and handgun background checks in 2005, rejection rates ranged from 2.1% for Alaska to less than 1% for Kansas, Massachusetts, Maine, Missouri, Rhode Island, and West Virginia.

NICS rejection rates in Massachusetts (0.1%) and Rhode Island (0.7%) were low as a result of separate background checks by local agencies. Rates in Delaware (1.4%) were reduced by prior checks conducted by the State Police (3.8% rejection).

Statewide rejection rates ranged from 0.3% to 3.8%

In 2005 statewide data was obtained from 16 NICS POC States (where State agencies conduct background checks instead of or in addition to the FBI) and Delaware. These States processed checks for 2.7 million applications, rejecting 51,000 or 1.9%.

The rejection rates for these States ranged from 0.3% in Connecticut and New Jersey to 3.8% in Delaware. Instant checks in New Jersey (0.3%) and Illinois (0.6%) were among the lowest rejection rates in 2005, where an instant check at the time of transfer is the second step required for firearm owners. During the first step of the process--an application for the requisite permit or ID card--the rejection rate is considerably higher in Illinois (2.6%), more similar to the national average.

Higher rejection rates in 2005 mainly occurred in States that implemented an instant approval system, such as Colorado(3.1%) and Tennessee (3.5%). Approval systems established before passage of the Brady Act, such as California (1%), Virginia (1.2%), and Wisconsin(1.5%), typically had lower rates. These rates have varied little from year to year.

In 2005 local agencies received 568,000 applications for purchase and exempt carry permits. Around 11,000 or 1.9% were rejected. Rejection rates for both types of permits were highest in jurisdictions with a population over 100,000 and lowest in those under 10,000.

Overall, local agency rejection rates in 2005 were higher for purchase permits than for exempt carry permits.

25 States had fully automated criminal history records in 2003; 24 States partially automated

All States maintain databases that record felony convictions, and many maintain data on other disqualifying factors such as fugitive status, court restraining orders, mental illness, and domestic violence misdemeanor convictions. States differ as to the degree of automation used in record searching and whether records are in a central database or in county courts or other local agencies.

In 2003, 49 States had automated at least some records in their criminal history files. The number of States with fully automated criminal history files increased from 21 to 25 between 1999 and 2003. (See Survey of State Criminal History Information Systems, 2003, <http://www.ojp.gov/bjs/abstract/ sschis03.html>.)

Checking agencies often encounter delays when they access incomplete records. The most frequent delays occur when researching the final disposition of a criminal charge in an arrest or indictment record. If the final disposition cannot be found during the time allowed for a background check, the agency must decide, based on Federal or State law, whether the application will be approved, denied, or delayed pending further research. A State's rejection rate may tend to be lower if an approval is mandated and higher if a denial is mandated.

The Brady Act allows a transfer to proceed if a disqualifying record is not found within the 3-business-day limit for a NICS check. Some States have laws and regulations that allow their agencies to deny or delay a transfer if an incomplete record is being researched when the time limit expires.

Felony convictions, indictments, leading reason for rejections in 2005

In 2005 the FBI reported that 37% of its rejections were for felony-related reasons (about 25,000 applications), followed by other criminal history disqualifiers (about 18,000 applications or 27%), which include State-specific prohibitions.

A domestic violence misdemeanor conviction or restraining order accounted for more than 15% of the rejections (about 10,000 applications). Other common reasons for rejection were an applicant's drug use (9%) or status as a fugitive (5%).

Forty-six percent of all rejections for firearm transfers among State and local checking agencies(about 30,000 in 2005) occurred because the applicant either had a felony conviction or was under felony indictment. The second most common reason for rejection was a domestic violence misdemeanor conviction or restraining order(about 15% of rejections or approximately 10,000 applications).

Other common reasons for rejection were the presence of a State law prohibition(9.6% of rejections)and an applicant's status as a fugitive (8.3%).

From 1999 to 2005 the number of rejections by all checking agencies fell 35%. While the number of felony-related rejections decreased 61%, the number rejected for reasons other than felony conviction or indictment increased 32% (from 57,000 to 75,000). Overall, the percentage of rejections for non-felony reasons increased from 28% to 57%.

Local agencies more likely to reject on State or local prohibitions, drug addiction, or mental illness

Although a felony conviction or indictment was the most common reason for rejection by both State and local law enforcement during 2005, the State agencies rejected for this reason more frequently (58%) than the local agencies (28%).

State agencies were more likely to reject an applicant because of fugitive status, while local agencies were more likely to base a rejection on a State or local prohibitor, drug addiction, or mental illness.

161,000 appeals of denials from 1999 to 2005; 57,000 reversed

Specific procedures for appealing the denial of a firearm purchase or permit are codified in Federal law and in the laws of nearly all States that process background checks. The most common procedure provides an appeal to the checking agency and a subsequent appeal to a court.

Seventeen States provide an appeal to the checking agency for a person who is denied a firearm purchase or a permit required for a purchase. (In eight other States, local agencies may reconsider their decisions although they are not required to do so by law.) Seventeen States provide an appeal to a court, and two States have a government officer in a department separate from the checking agency who performs an administrative review.

Other agencies involved in appeals are those that maintain criminal history records or other records which could disqualify an applicant. An appellant may be required to contact the agency that supplied a criminal history or another record that caused a denial.

Appeals often arise when an applicant denies being the individual named in a disqualifying record found by the checking agency. To resolve the identity question, the appellant will ordinarily submit fingerprints for comparison with Federal or State arrestee records. If the appellant's prints do not match any records on file, the denial may be reversed.

Another common appeal arises when an applicant is denied because of a felony arrest or charge without a recorded disposition. The applicant can have the denial reversed by submitting court records to prove that the charge was subsequently dismissed.

The vast majority of disputed denials are resolved at the administrative level and are based upon the accuracy of records rather than interpretation of the law.

In 2005 checking agencies that reported data to FIST received 23,000 appeals of denials, of which almost 7,600(or 33% were reversed. Of the more than 65,000 denials issued in 2005 by State and local agencies, about 14,500(or 27%)were appealed. Of the appealed denials, nearly 5,900 (or 41%) were reversed.

From 1999 to 2005, of the 1,048,000 denials by the FBI and State and local agencies about 161,000 (16%) were appealed. Of the appeals, nearly 57,000 (35%) were reversed. For States that are able to report the number of appeals, the percent of rejections appealed ranged from 1.9% in Virginia to 54% in Oregon.

The FBI NICS Appeal Services Team (AST) reviews and investigates appeals of NICS denials. Of the 67,000 denials issued by the FBI in 2005, about 8,300 (or about 12%) were appealed. About 21% of appeals resulted in the denial being overturned.

In 2005, 1,400 arrests of persons denied firearm or permit

In 2005 agencies reported 1,400 arrest of persons denied a firearm or a permit. During the permanent Brady period, over 9,700 persons have been arrested, according to checking agencies that reported arrests to FIST.

Persons prevented from receiving a firearm or a permit by a background check may be subject to arrest and prosecution if they are wanted in an outstanding warrant or have submitted false information on their application. When a check identifies a wanted person, the checking agency generally will inform the agency that entered the warrant, in addition to notifying the agency with jurisdiction over the fugitive's location or place of residence. A statewide fugitive apprehension unit may also be informed.

Many checking agencies notify ATF of persons who submit false information on a Federal firearm transaction record or fail to disclose required information. If a misrepresentation violates State law, the checking agency will inform the agency with jurisdiction over either the location of the transaction (usually a dealer's premises)or the applicant's residence, or both agencies.

In seven States persons who falsify an application or attempt an illegal transfer are reported to a special police unit to make an arrest determination. In some States all persons denied a firearm are reported to a special police unit. Of the States reporting for 2005, Virginia had the largest number of arrests of denied persons due to outstanding warrants or other reasons.

FBI referred 67,700 NICS denials to ATF in 2005

The FBI electronically transmits NICS denial data to ATF's Brady Operations Branch daily. In 2005 the FBI referred a total of 67,713 NICS denials to ATF's Brady Operations Branch. Standard referrals by the FBI NICS contain data on prohibited persons who unlawfully attempted to purchase a firearm. Some prohibited persons obtain a firearm during an "open transaction," where the FBI has not completed a check in three business days and the dealer is allowed to transfer the firearm. When the FBI finishes the check and finds a prohibitory record, they make a "delayed denial" referral to ATF.

The FBI determines if a firearm was transferred to the subject of the delayed denial. ATF is responsible for retrieving these firearms. In POC States local law enforcement, a statewide firearms unit, or ATF may be responsible for the retrieval, depending on the specific jurisdictions for the dealer and the applicant.

ATF field offices investigated 9,575 NICS denials in 2005; 135 accepted for prosecution by U.S. Attorneys

ATF's Brady Operations Branch searches databases for additional information on denied persons referred by the FBI. ATF and United States Attorneys have developed referral criteria for all 94 judicial districts that reflect the types of cases most likely to merit prosecution. After initial screening, 9,575 denials which met the established guidelines were referred to Field Divisions.

A NICS coordinator in each ATF division distributes referrals to the appropriate field office. A State point of contact may also refer denials to the nearest field office. Agents verify prohibiting information and conduct other investigations. If ATF finds that a person should not have been denied, they notify the FBI or the POC. In a delayed denial case, the agent contacts the firearm purchaser and seizes or takes an abandonment of the firearm. The agent could also coordinate a transfer of the firearm to a licensed dealer or to a third party who is not a prohibited person.

The referred transactions included 3,215 delayed denials and 6,360 standard referrals. A total of 135 cases (41 delayed denials and 94 standard referrals) were accepted for prosecution.

Methodology

The Regional Justice Information Service (REJIS), through a cooperative agreement with BJS under the FIST program, collected the data from Federal, State, and local agencies.

State and local checking agencies were stratified by size of the population served: State agencies that served an entire State population; local agencies that served a population greater than 100,000; local agencies that served a population between 10,000 and 100,000; and local agencies that served a population of less than 10,000. Population size was based on 2000 Census Bureau information. The population categories were chosen to be consistent with those used by the FBI when conducting similar studies.

The sample for the FIST survey was selected from the population of 2,950 State and local checking agencies. All 27 statewide agencies were included, along with a stratified random sample of local agencies. Overall, 682 agencies provided data for a response rate of 85.4%

National estimates were developed using population weighting factors. When an agency did not provide data for all months, a simple linear extrapolation or interpolation was used to generate a 12-month total.

Estimation based on State population was used to determine the number of carry permit applications and rejections in Mississippi. Pennsylvania reported 371,338 instant checks, included in the FIST national estimate, and 111,150 applications for nonexempt carry permits. Pennsylvania provided the combined number of denials of all applications, which was prorated to obtain the number of denials of instant checks.

Background

Prohibited persons

The Federal Gun Control Act(GCA), 18 U.S.C. 922, prohibits transfer of a firearm to a person who--

• is under indictment for, or has been convicted of, a crime

punishable by imprisonment for more than 1 year

• is a fugitive from justice
• is an unlawful user of, or is addicted to, a controlled

substance

• has been adjudicated as a mental defective or committed to

a mental institution

• is an illegal alien or has been admitted to the United

States under a nonimmigrant visa

• was dishonorably discharged from the U.S. Armed Forces
• has renounced U.S. citizenship
• is subject to a court order restraining him or her from

harassing, stalking, or threatening an intimate partner or child

• has been convicted of a misdemeanor crime of domestic

violence.

The GCA also prohibits transfers of long guns to persons under age 18 and transfers of handguns to persons under 21. State laws may include additional prohibitors.

Brady Act provisions

The Brady Act amended the GCA and included interim provisions, 18 U.S.C. 922(s), in effect from February 29, 1994, until November 29, 1998. The U.S. Department of Justice, with the States, developed the NICS during the 57-month interim period, as authorized by the permanent provisions of the Brady Act, 18 U.S.C. 922(t).

Since November 30, 1998, the NICS has allowed a licensee to contact the system by telephone or other electronic means for information, to be supplied immediately, on whether receipt of a firearm by a prospective transferee would violate Federal or State law.

In addition to regulation of handgun sales, the permanent Brady provisions mandate that licensees request background checks on long gun purchasers and persons who redeem a pawned firearm. Licensees have the option of requesting a NICS check on persons who attempt to pawn a firearm.

Components of the national firearm check system

About 3,000 Federal, State, and local agencies conduct background checks on persons who apply to purchase a firearm or for a permit that may be used to make a purchase. Variations in Federal and State procedures for determining firearm possession eligibility are summarized below.

Overview of the NICS

Prospective firearm transferees undergo a NICS check requested by a dealer or present a State permit that the ATF has qualified as an alternative to the point-of-transfer check. Qualifying permits are those that--

1. allow a transferee to possess, acquire, or carry a firearm, and
2. were issued not more than 5 years earlier by the State in which the transfer is to take place, after verification by an authorized government official that possession of a firearm by the transferee would not be a violation of law.

A permit issued after November 29, 1998, qualifies as an alternative only if its approval process included a NICS check. Many qualifying permits may be used for multiple purchases while valid. State laws also often provide that a permit will be revoked if the holder is convicted of an offense or otherwise becomes ineligible after receiving the permit.

Prior to transferring a firearm subject to permanent Brady requirements, a licensee must receive a completed Firearm Transaction Record(ATF form 4473).

A licensee initiates a NICS check by contacting either the FBI or a point of contact(POC)agency designated by State government. Most inquiries are initiated by telephone. In 2002 the FBI added online checking (known as E-Check) as another means to contact the NICS. About 101,000 inquiries were made by this method in 2005, double the number of E- Check inquiries in 2004.

The FBI or POC checks available Federal, State, and local databases and responds with a notice to the licensee that the transfer may proceed, may not proceed, or is delayed pending further review of the transferee's record.

State and local NICS participation

Each State government determines the extent of its involvement in the NICS process. Three forms of State involvement currently exist:

• A full POC requests a NICS check on all firearm transfers

originating in the State.

• A partial POC requests a NICS check on all handgun transfers;

licensees in the State are required to contact the FBI for NICS checks for long gun transfers.

• The State does not maintain a POC; licensees are required to

contact the FBI for NICS checks on all firearm transfers originating in the State.

The FBI conducts all NICS checks for 29 States. POC agencies conduct all NICS checks in 13 States. In eight States NICS checks are conducted by POC agencies on handgun transfers and by the FBI on long gun transfers. The FBI conducts all NICS checks for the District of Columbia, Guam, Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands. The only change in State participation during 2005 occurred on July 1, when the FBI assumed responsibility for Georgia NICS checks.

Participation in the NICS by POC agencies includes initiating checks on persons who apply for qualified State permits. Most POC agencies conduct a background check that incorporates Federal and State requirements. In a few States with full or partial participation, the FBI conducts the NICS check on certain pawn transactions instead of the POC. Most States have designated a single agency with statewide jurisdiction as their NICS point of contact; some States have multiple points of contact, which are usually county sheriffs or local police departments. (For agencies conducting firearm checks,).

The NICS is integrated with most State instant approval, purchase permit, or other approval systems. Twenty-eight States maintained approval systems for purchase or permits required for purchase at yearend 2005. Fifteen States operated instant check systems; 12 required purchase permits; and 5 maintained other types of approval systems. (Connecticut, Illinois, and New Jersey are each counted twice because they operated separate purchase permit and instant check systems; Minnesota is counted twice because it gives a buyer the option of a purchase permit or an "other approval" process.)

At yearend 2005, 17 States issued carry permits that exempted the holder from a check under the permanent Brady law or a State law or both. ATF ruled that Georgia and Nevada concealed handgun permits were no longer exempt, effective October 19, 2005. On that date Alaska began issuing permits that are "not NICS exempt" in addition to "NICS exempt" permits.

In addition to the Brady Act's regulation of sales by licensed dealers, some States require background checks for firearm transfers that occur between unlicensed persons at gun shows or other locations.

A few States require a mandatory waiting period after a purchaser applies and before a firearm transfer can be made, regardless of when a background check is completed.

Parallel State systems

In eight States transferees are required to undergo two checks conducted by different agencies. Seven States(Delaware, Indiana, Massachusetts, Minnesota, Missouri, New York, and Rhode Island) have checking agencies that are not points of contact, and licensees in these States must contact the FBI for NICS checks. In New Jersey local agencies that conduct permit checks are not points of contact and licensees must contact the State Police for NICS sales checks.

For more information on approval systems in specific States, see Survey of State Procedures Related to Firearm Sales, 2005 <http://www.ojp.usdoj.gov/bjs/abstract/ssprfs05.htm>.

Definitions

Application for firearm transfer is information submitted by a person to a State or local checking agency to purchase a firearm or obtain a permit that can be used for a purchase; includes information submitted directly to a checking agency or forwarded by a prospective seller.

Exempt carry permit is a State carry permit (issued after a background check) that exempts the holder from a check at the time of purchase under an ATF regulation or State law.

Instant check (instant approval) systems require a seller to transmit a purchaser's application to a checking agency by telephone or computer; the agency is required to respond immediately or as soon as possible.

Other approval systems require a seller to transmit a purchaser's application to a checking agency by telephone or other electronic means; the agency is not required to respond immediately but must respond before the end of the statutory time limit.

Purchase permit systems require a prospective firearm purchaser to obtain, after a background check, a government- Issued document (called a permit, license, or identification card) that must be presented to a seller to receive a firearm.

Rejection occurs when an applicant is prohibited from receiving a firearm or a permit that can be used to receive a firearm, due to the finding of a disqualifying factor during a background check.

Transactions are inquiries to the Federal NICS system and may include more than one inquiry per application.

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The Bureau of Justice Statistics is the statistical agency of the U.S. Department of Justice. Jeffrey L. Sedgwick is director.

BJS Bulletins present the first release of findings from permanent data collection programs.

This Bulletin was written by Michael Bowling and Gene Lauver, of the Regional Justice Information Service and Matthew Hickman and Devon Adams of BJS, who provided statistical verification. Allen J. Beck reviewed the report. Carolyn C. Williams edited the report and Jayne Robinson prepared it for final printing, under the supervision of Doris J. James.

November 2006, NCJ 214256

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This report in portable document format and in ASCII and its related statistical data and tables — including two appendix tables — are available at the BJS World Wide Web Internet site: <http://www.ojp.usdoj.gov/bjs/abstract/bcft05.htm>.

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End of file 11/14/06 ih

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