New BJS Report Tracks States' Reporting of Misdemeanor Convictions to NICS

Published: Jan 3, 2017 | Author: David Keck, J.D.

A background check for a firearms purchase is only as reliable as the information it contains.  In theory it operates like a net, catching those who are not permitted to buy a gun, and identifying them before they can complete a purchase.  But a net full of holes allows too much to slip through.

               One such loophole is starting to close, thanks to the efforts that many states have undertaken to ensure that convictions for misdemeanor crimes of domestic violence (MCDV) are recorded and reported accurately in the federal index responsible for collecting this data, as reported in State Progress in Record Reporting for Firearm-Related Background Checks, authored by Anne Gallegos of the National Center for State Courts and Becki Goggins of SEARCH (December, 2016).

               The problem is that too many convictions for MCDV are not readily accessible upon inquiry through the National Instant Criminal Background Check System (NICS).  This is because the federal definition for MCDV is not in use in every jurisdiction, therefore a NICS inquiry cannot always readily discern if the offense qualifies under federal law.

               For example, a candidate for firearms purchase may have a conviction on record which is found upon a background search, but deciding if that conviction counts as a MCDV or not sometimes requires additional effort by the NICS section.   This can include an inquiry into the nature of the offense or into the nature of the relationship between the abuser and the victim.  Not only is there a risk that such an inquiry cannot be completed timely enough, there is also some risk that the inquiry may not reach an accurate conclusion.

          This is not a new problem.  It stems from the fact that the federal definition of MCDV creates a class of individuals not permitted to purchase firearms.  It is not a federal offense in and of itself. Misdemeanor crimes of domestic violence are prosecuted at state, tribal or other local level.  Some of these will fit the federal definition, and no further inquiry is needed.  Others may fit, depending upon the circumstances. 

               This problem is compounded by the fact that MCDV have been identified as one of the leading indicators of future lethality.  The result is that precisely those individuals that can be identified as particularly dangerous, based upon a conviction for MCDV, are also those individuals which may be difficult to locate on a NICS background check.

               Fortunately, many states have recognized the seriousness of this problem and have developed innovative approaches to address the need.  Some of these consist of “flagging” or otherwise identifying those convictions which may meet the federal definition of MCDV as they are entered into that state’s court record database.  Other states have improved automation techniques that ensure that convictions for MCDV are actually forwarded to and recorded as such in the NICS database.

               In these ways, the states can be more confident that the convictions that they are securing, and the information they are gathering, is more likely to be used to prevent firearms from coming into the hands of dangerous individuals.

               Finally, because of the unique nature of this problem, it appears that the short-term solution lies with state, tribal, and local communities, who are in the best position to determine if their own definition of MCDV matches the federal definition.  If it does not, then each community must decide which approach best fits their situation.  Every community expends time and resources prosecuting MCDV offenses and entering the convictions into a records system.  By taking the next steps, as many other states have already done, they can ensure that the convictions also carry the full import that was intended under federal law.

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