THE NICS IMPROVEMENT AMENDMENTS ACT OF 2007 FRANK A. S. CAMPBELL OFFICE OF LEGAL POLICY U.S. DEPARTMENT JUSTICE

IMPROVING INFORMATION AVAILABLE FOR NICS CHECKS Amends the Brady Act to provide incentives to states and require federal agencies to provide complete information to the Attorney General on persons prohibited from possessing firearms. Establishes substantial new grant programs for states and state court systems to create the automated systems needed for complete record reporting. Provides penalties for states failing to meet statutory record completeness goals.

REASONS FOR ENACTMENT First introduced in 2002 as the “Our Lady of the Peace Act,” Based on fatal shooting at a church in New York by person with prohibiting mental health history. Support from Members of Congress and interest groups on both sides of gun issues. Cites millions of missing dispositions and other relevant information unavailable to NICS. Better stop gun transfers to prohibited persons. Reduce delays for lawful gun purchasers. Virginia Tech tragedy mobilized broad-based support for doing more to get complete records for NICS checks, particularly mental health records.

Federal Records Reporting Creates independent statutory obligation for federal agencies to report records identifying prohibited persons to the AG. Quarterly electronic submissions. Attorney General specifies the records he will accept.

Provisions Regarding Mental Health Records Federal mental health gun prohibitor. Adjudicated as a mental defective. Danger to self or others. Lack capacity to contract or manage one’s own affairs. Involuntarily committed to a mental institution. Newly required programs for relief from the mental health disability Concern about permanence of disability. Federal – Veterans Administration. State. Relief Standard Under 18 U.S.C. 925(c). Established that applicant will not act in a manner dangerous to public safety and granting relief is not contrary to public interest.

Automatic Relief for Persons Federally Adjudicated/Committed Adjudication or commitment has been set aside or expunged or person has otherwise been fully released or discharged from all mandatory treatment, supervision, or monitoring; Person found to no longer suffer from mental health condition, or has otherwise been found to be rehabilitated through any procedure available under law; or

Automatic Relief (cont.) Adjudication or commitment is based solely on a medical finding of disability, without an opportunity for a hearing by a court board or other lawful authority, and the person has not been adjudicated as mentally defective (excepting persons found not guilty by reason of insanity or lack of mental responsibility or incompetent to stand trial). Only applies to federal records; primarily aimed at veterans.

Federal Notice, Record Removal Requirement, Privacy Regulations Notice by federal agencies of prohibiting effect of mental health adjudication. NICS must remove records of persons eligible for automatic relief or who are granted relief from mental health prohibitor. AG to establish new privacy regulations for mental health information in NICS. Consultation with state and local law enforcement and mental health groups.

Changes Scope of Mental Health Prohibitor When relief granted under federal or state relief program, or when automatic relief conditions are satisfied, the event giving rise to the mental health disability is “deemed not to have occurred” for purpose of federal firearm prohibition.

Record Improvement Provisions Waiver of NCHIP matching requirement when record completeness goals met. Grant program for states. Grant program for state court systems. Penalties for state non-compliance with record completeness requirements.

Waiver of NCHIP State Match Waiver of NCHIP 10-percent match if providing at least 90 percent of records on prohibited persons. Waiver up to 2 years, with continuing waivers if state certifies continued completeness once every 2 years. Beginning 3 years after enactment. Within 6 months of enactment, states must provide reasonable estimates to AG, based on AG established methodology, of total number of records in each category.

Records Covered Felony convictions Felony indictments Drug Arrests and Convictions Prohibiting Mental Health History Domestic Violence Protection Orders Misdemeanor Crimes of Domestic Violence

Records Covered (Cont.) Scope AG to assess total percentage of records provided by the State concerning any disqualifying event within the last 20 years. States expected to endeavor to provide all relevant records, regardless of age. AG shall calculate record estimate methodology “based on the total number of records to be reported from all subcategories of records.”

State Grants Authorizes grants to establish and upgrade information and identification technologies. Only used for creating electronic systems for timely submission of final dispositions and other information relevant to NICS checks. Consistent with NCHIP. Conditions for receiving grants: State record estimates. Establish program for relief from federal mental health firearm disability.

State Grants (cont.) 3 to 10 percent of money to be used for mental health disability relief program. Up to 5 percent may be reserved for Indian tribal governments and judicial systems. Money can be used to collect and analyze data regarding compliance with Act. Total of $875 million authorized over 5 years, beginning in FY $125 million - years 1, 4, and 5. $250 million - years 2 and 3.

State grants (cont.) Grant Distribution AG “shall endeavor” to allocate at least ½ of money: in years 1 and 2 to states providing 50 percent of the required records; and in years 3, 4, and 5 to states providing more than 70 percent of required records. Distribution subject to AG discretion to adjust to maximize incentives for state compliance.

State Court System Grants Separate grant program to states for use by state court systems. Improve automation and transmittal of dispositions and other relevant information to federal and state record repositories. Also conditioned on relief from disability program. Up to 5 percent may be reserved for Indian tribal governments and judicial systems. Total of $437.5 million authorized over 5 years, beginning in FY $62.5 million – years 1, 4, and 5. $125 million – years 2 and 3.

Penalties Discretionary and mandatory Byrne grant penalties for non-compliance with record completeness requirements. After 3 years, may withhold 3 percent if less than 50 percent completeness; After 5 years, may withhold 4 percent if less than 70 percent completeness; and After 10 years, shall withhold 5 percent if less than 90 percent completeness. AG may waive mandatory reduction, if substantial evidence state is making reasonable effort to comply.

Penalties (cont.) Byrne funds not allocated to a state because of failure of compliance shall be reallocated to states that do comply.

First Tasks For Grant Program Establishment of methodology for initial state record estimates. Consultation with state repositories and state courts. Technical support from BJS. States to establish relief from disabilities program for mental health prohibitor. Technical support from ATF, in coordination with BJS.

Relationship to Record Improvement Generally Dovetailing with broad record improvement recommendations in the AG’s Report on Criminal History Background Checks. Annual Report by Director of BJS required on best practices by states in collecting, automating, and transmitting records.