Federal Firearm Prohibitions
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1 Federal Firearm Prohibitions Presented by: Roberta A. Hatcher Legal Administrative Specialist FBI Criminal Justice Information Services Division National Instant Criminal Background Check System (NICS) Section Legal Research and Analysis Team
2 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
3 Who Can Access the NICS? Federal Firearms Licensees (FFL) can contact the NICS Section to conduct background checks in connection with a proposed firearm transfer. 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. 3
4 NICS Participation AK WA OR ID NV UT CA HI AZ N. Mariana Islands Guam American Samoa MT WY CO NM ND SD NE KS OK TX MN IA MO AR LA WI IL IN TN MS AL MI KY OH GA WV SC NC FL PA VA NH VT NY ME Virgin Islands MA RI CT NJ DE MD DC Puerto Rico 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 ATF-Qualified Alternate Permit. The permits are issued by local or state agencies. Please refer to the latest Permanent Brady Permit Chart for specific permit details at /2013
5 Types of Records Searched By the NICS As of 1/2013 Interstate Identification Index (III) 64,278,995 Criminal Records During the National Crime Information Center (NCIC) Files Inquiries - Wanted Persons - Protection Orders - - Wanted Immigration Persons - Protection Violators Orders - - Immigration U.S. Secret Service Violators - Protective Interest Protection - Foreign Fugitive - Foreign Fugitive - Supervised Release - - National Supervised Sex Release Offender - Registry SENTRY - - Gang Sexual File Offenders - - Known VGTOF or Appropriately - Suspected Missing Persons Terrorist (KST) 5,201,887 Records Background Check Process... 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 Prohibitors 9,053,714 Records Department of Homeland Security United States Immigration and Customs Enforcement (ICE) -On all transactions initiated for Non-U.S. Citizens, an Immigration Alien Query (IAQ) will be requested through the ICE. 5
6 A Sampling of NICS Transactions 100 POTENTIAL GUN BUYERS 72 PROCEEDS AT THE CALL CENTER 28 TRANSFERRED FROM THE CALL CENTER TO THE FBI NICS SECTION 20 IMMEDIATELY GIVEN A PROCEED OR A DENY 8 DELAYED FOR ADDITIONAL RESEARCH ULTIMATELY DENIALS FOR EVERY 100 BACKGROUND CHECKS 6
7 Total Federal Denials November 30, 1998 January 31, 2013 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 581, % 2 Misdemeanor Crime of Domestic Violence Conviction 102, % 3 Fugitive from Justice 95, % 4 Unlawful User/Addicted to a Controlled Substance 81, % 5 State Prohibitor 43, % 6 Protection/Restraining Order for Domestic Violence 42, % 7 Under Indictment/Information 19, % 8 Illegal/Unlawful Alien 12, % 9 Adjudicated Mental Health 10, % 10 Federally Denied Persons File 5, % 11 Dishonorable Discharge % 12 Renounced U.S. Citizenship % Total Federal Denials 996, %
8 Federal Firearm Prohibitions 18 U.S.C. 922(g)(1)-(9) & (n) 8
9 Convicted of a crime punishable by imprisonment for a term exceeding one year or misdemeanor that can exceed two years imprisonment Fugitives from Justice the subject of an active criminal 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 order Misdemeanor crimes of domestic violence Under information or indictment for a crime punishable by imprisonment for a term exceeding one year or misdemeanor that can exceed two years imprisonment 9
10 Protection Orders and Domestic Violence 10
11 Protection Orders 922(g)(8) It is a federal crime to receive or possess a firearm and/or ammunition while subject to a valid qualifying Protection Order. Federal, state, and local law enforcement officers and active military personnel are not subject to this law while on duty Official Use Exception to prohibitor 925(a). Tribal law enforcement officers are subject to this prohibition. 11
12 Protection Order Qualifying Elements Order was issued after a hearing of which the defendant/respondent had actual notice and an opportunity to participate; Order restrained the defendant/respondent from harassing, stalking, or threatening an intimate partner, child of intimate partner or child of defendant/respondent, or from engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; Order included a finding that the defendant/respondent is a credible threat to the physical safety of an intimate partner; OR Order, by its terms, explicitly prohibited the use, attempted use or threatened use of physical force against the intimate partner or child that would reasonably be expected to cause bodily injury. 12
13 Misdemeanor Crimes of Domestic Violence 922(g)(9) It is a federal crime to receive/possess a firearm and/or ammunition after conviction of a qualifying misdemeanor crime of domestic violence. This statute applies to all law enforcement and other government personnel, no Official Use Exception. A qualifying misdemeanor conviction: Is a misdemeanor offense under federal, state, or tribal law. Has, as an element, the use or attempted use of physical force or threatened use of a deadly weapon. Qualifying relationship: Committed by current or former spouse, parent or guardian, by current or former cohabitant, by a person similarly situated to a spouse, parent or guardian of the victim, or by parent with whom the victim shares a child in common. Date of conviction must precede firearm possession. 13
14 Misdemeanor Crimes of Domestic Violence 922(g)(9) Not considered convicted unless: Represented by counsel or waived right to counsel. If entitled to jury, had a jury trial, or waived right to jury trial. If conviction not pardoned, expunged, set aside, or had civil rights restored (if the offense provides for loss of civil rights). A person shall not be considered to have been convicted of such an offense if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights, unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms. 14
15 Misdemeanor Crimes of Domestic Violence 922(g)(9) Misdemeanor Crime of Domestic Violence Information Needed on Court Conviction Documents Specific subsection or phrase of convicting statute Specific facts adopted by court or pled by defendant demonstrating: Use or attempted use of physical force Threatened use of deadly weapon 15
16 Identifying Firearm Prohibitions in Drug Cases 16
17 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) ; 17
18 Definition of a Controlled Substance As defined in 21 U.S.C. 802 and Title 21, Code of Federal Regulations (CFR), Part 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. 18
19 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. 19
20 Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Regulation 27 CFR 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. 20
21 How the NICS Section Establishes a Drug Prohibition 21
22 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 positive drug test to use a controlled substance unlawfully, provided the test was administered within the past year; or 22
23 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. 23
24 Establishing Inference of Use In accordance with CFR , 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. 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. 24
25 Establishing Inference of Use Continued... 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. 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. 25
26 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. 26
27 Examples of Drug Scenarios the NICS Section Will Research 27
28 Drug Arrest Within the Past Year (No Arrests within the Previous Five Years) If there has been a drug arrest in the past year, without a conviction, it must be determined if it can be proven that the individual, or the substance in his/her possession, tested positive. For NICS Section purposes, this would be enough to establish inference of current or recent drug use or possession. 28
29 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). 29
30 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. 30
31 Drug Charge Not Within the Past Year with Conviction in the Past Year ATF has interpreted 27 CFR 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. 31
32 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 receiving or possessing a firearm. 32
33 Prescription Drugs Prescription drugs may qualify under federal firearms drug prohibitions if the prescribed controlled substance is used in a non-prescribed manner. (27 CFR ) 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 prescribed medication, or obtaining a prescription drug by fraud. 33
34 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. 34
35 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. 35
36 Attempts and Conspiracies Attempt or Conspiracy to possess a drug/controlled substance does not meet federal firearm drug prohibition standards. 36
37 The NICS Section 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 drug card is used as a photo identification to the FFL. 37
38 The NICS Section 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. 38
39 How You Can Assist the NICS Section Submit records to the NICS Index on individuals who have positive 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. 39
40 QUESTIONS? 40
41 Contact Information Roberta A. Hatcher Legal Administrative Specialist NICS Section (304) NICS Section s Legal Research and Analysis Team nicslegalresearch@leo.gov
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