The primary mechanism in place to prevent prohibited individuals from purchasing firearms is the Federal Bureau of Investigation’s (FBI) National Instant Criminal Background Check System (NICS).

Under the permanent provisions of the Brady Handgun Violence Prevention Act (Brady Act,) which took effect on November 30, 1998, federally licensed firearm dealers may not sell a firearm to an individual without initiating a background check to ascertain whether the transfer would violate state or federal law (unless the individual possesses a valid state-issued permit that exempts him or her from a NICS check at the point of sale). Under the law, firearm dealers may transfer a firearm to the purchaser if there has been a “proceed” issued by NICS or a “delay” issued by NICS that is not resolved within three business days. If the FBI determines, after the three business days have elapsed, that an individual to whom a firearm was transferred is in fact prohibited from receiving or possessing a firearm, the FBI refers the case (called a “delayed denial”) to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) for possible retrieval of the firearm—a potentially dangerous scenario to be avoided.

To facilitate the NICS check, the dealer provides identifying information about the individual to the FBI, so that a search of three national databases may be conducted. The three databases are:

  • The Interstate Identification Index (III): The III contains criminal history records submitted by state and federal agencies, specifically information on individuals indicted for, or who have been convicted of, a crime punishable by imprisonment for a term exceeding 1 year or who have been convicted of a misdemeanor crime of domestic violence (MCDV).
  • The National Crime Information Center (NCIC): NCIC consists of 21 separate files (7 property files and 14 person files) made available to law enforcement and criminal justice agencies around the country. One of the files, the Protection Order File, contains information about individuals subject to protection orders issued by state and Tribal courts.
  • The NICS Index: The NICS Index was developed by the FBI specifically for use in conducting NICS background checks. It contains information on individuals who have been ascertained to be prohibited under state, Tribal, or federal law from possessing or receiving a firearm. Protection orders not otherwise eligible for entry into the NCIC POF may be entered into the NICS Index if the determination is made that the order disqualifies the respondent from possessing or receiving a firearm. Likewise, MCDV-related court records may be entered into the NICS index.

The effectiveness of the NICS depends critically upon the timeliness, comprehensiveness, and accuracy of information submitted by states, Tribes, and federal agencies to the three national databases. Communities can adopt practices and policies for the relevant agencies (courts and law enforcement, primarily) to ensure that information about MCDVs and civil and criminal protection orders that meet the requirements of the federal firearm prohibitions are made accessible to the NICS through the national databases.

Misdemeanor Crimes of Domestic Violence

In criminal domestic violence cases, information regarding the offense of conviction should be included in charging documents, plea agreements, conviction orders, and other official court documents, and accurate information should be transmitted to state and federal criminal history databases indicating that a criminal conviction meets the federal definition of a misdemeanor crime of domestic violence under 18 U.S.C. § 922(g)(9).

Official court records (ideally, a standard record of conviction form) should include all information necessary to indicate that the offense of conviction is a predicate offense for application of the federal firearms prohibition at 18 U.S.C. § 922(g)(9), including:

  • The actual elements of the applicable criminal statute under which the defendant was convicted
    • This is especially important where the criminal statute is multi-pronged or “disjunctive” and not all alternative elements satisfy the requirements of the federal law (18 U.S.C. § 922(g)(9)); a citation to the general statute will not be sufficient
  • The qualifying intimate partner relationship between the parties, if available;
  • That the defendant was represented by an attorney or knowingly and intelligently waived representation; and
  • That the defendant had a trial by jury or knowingly and intelligently waived that right

Records of conviction should be transmitted to the Interstate Identification Index (III) in a timely fashion

  • The relationship between the victim and offender, as well as the specific subsection of the offense of conviction should be denoted on the face of the III record; this facilitates a quick and efficient determination for NICS purposes

Alternatively, any MCDV information not eligible for entry in the III should be entered into the NICS Index

Court and other agencies should respond promptly to requests by NICS personnel for information concerning criminal convictions, especially in light of the strict three-business-day limit imposed upon the NICS

Courts and other agencies should cooperate closely with the NICS Section on audits

Protection Order Cases

In civil and criminal protection order cases, qualifying orders should be indicated as meeting the requirements of the federal prohibition for protection orders under 18 U.S.C. § 922(g)(8), and all such orders should be entered immediately into state/Tribal registries and the federal National Crime Information Center Protection Order File (NCIC POF).

  • Orders should satisfy all requirements for application of federal prohibitions on possession or receipt of firearms (found at 18 U.S.C. §§ 922(g)(8) and 921(a)(32)):
    • Include necessary language in the order
    • Include information about the qualifying relationship of the parties (the relationship need not be included in the submitted order as long as the qualifying relationship is met)
    • Indicate compliance with due process requirements
    • Notify respondents about the federal firearm prohibitions (which also should be provided orally)
  • Application of the federal laws prohibiting possession or receipt of firearms should be further facilitated by taking the following steps:
    • Orders are entered into state/Tribal and federal databases in a timely manner
    • Personnel responsible for entry of orders follow a protocol and are trained on accurate entry of the Brady indicator (a “field code,” or marker used upon entry of a protection order into the NCIC POF to indicate whether that order prohibits the respondent from possessing or purchasing a firearm under federal law)
    • Disqualifying orders not eligible for entry in the NCIC POF are entered into the NICS Index
    • Where state/Tribal prohibitions apply, Protection Order Condition (PCO) code 7 is used upon entry into the NCIC POF
    • Court responds promptly to requests by the NICS Section’s personnel for information concerning protection orders, especially in light of the strict three-business-day limit imposed upon NICS
    • Courts and other agencies cooperate closely with the NICS Section on audits

See the Community Strategies in Action

King County, Washington

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Baltimore, Maryland

Specialized Unit Enhances Service or Orders and Confiscation of Firearms

In 2009, Maryland enacted a law requiring a judge to order firearms confiscated from people who have final protective orders filed against them.

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