FOR STATES: The NIAA has provisions that encourage states to meet specified goals for completeness of the records submitted to the Attorney General on individuals prohibited by federal law from possessing firearms. The records covered include automated information needed by the NICS to identify felony convictions, felony indictments, fugitives from justice, drug arrests and convictions, federally prohibiting mental health adjudications and commitments, domestic violence protection orders, and misdemeanor crimes of domestic violence. The Act provides for a number of incentives for states to meet the goals it sets for greater record completeness.
- First, the Act allows states to obtain a waiver, beginning in 2011, of the National Criminal History Improvement Program's (NCHIP) state matching requirement for NCHIP grants, if a state provides at least 90 percent of its records identifying the specified prohibited persons.
- Second, the Act authorizes a separate grant program to be administered consistent with NCHIP, for state executive and judicial agencies to establish and upgrade information automation and identification technologies for timely submission of final criminal record dispositions and other information relevant to NICS checks. Up to 5% of the grants may be reserved for Indian tribal governments and judicial systems.
- Finally, the Act provides for discretionary and mandatory Byrne grant penalties for non-compliance with record completeness requirements: During the 2-year period beginning 3 years after the date of enactment of the Act, up to 3% may be withheld in the case of less than 50% completeness; during the 5-year period beginning 5 years after the date of enactment of the Act, up to 4% may be withheld in the case of less than 70% completeness; thereafter, 5% must be withheld in the case of less than 90% completeness (although the mandatory reduction can be waived if there is substantial evidence of the state making a reasonable effort to comply).
IN THE FEDERAL SYSTEM: The NIAA creates an independent statutory obligation for federal agencies to report records identifying prohibited persons to the Attorney General no less than quarterly. It also requires federal agencies that issue prohibiting mental health adjudications or commitments establish a program under which a person subject to such an adjudication or commitment can apply for relief from his or her firearms disability according to standards under 18 U.S.C. § 925(c). Additionally, the Act provides that a prohibiting adjudication or commitment issued by a federal agency or department may be nullified in certain instances by a qualified set aside, expungement, release from mandatory treatment, or other specified means.
CHANGE TO THE MENTAL HEALTH PROHIBITOR: Prior to the NIAA, section 922(g)(4) was effectively a lifetime prohibition on possessing firearms by any person "who had been adjudicated a mental defective or who has been committed to a mental institution." The Act, however, provides that when relief is granted under a federal or state relief from disabilities program that meets the requirements of the Act, or when certain automatic relief conditions are met with respect to persons federally adjudicated or committed, the event giving rise to the mental health disability is "deemed not to have occurred" for purposes of the federal firearm prohibition.
There are two conditions that each state must satisfy before being eligible to receive grants:
- First, a state must provide to the Attorney General a "reasonable estimate," based on a methodology established by the Attorney General, of records subject to the Act's completeness requirements.
- Second, a state must certify, to the satisfaction of the Attorney General, that the state has implemented a program permitting persons who have been adjudicated a mental defective or committed to a mental institution to obtain relief from the firearms disabilities imposed by law as a result of such adjudication or commitment. This relief must be granted, in accordance with principles of due process, by a state court, board, commission, or other lawful authority. The relief must be based on a finding that the circumstances of the disability and the person's record and reputation are such that the person will not be likely to act in a manner dangerous to the public safety and that the granting of relief would not be contrary to the public interest.
Before the enactment of the NICS Improvement Act, a person's adjudication as a mental defective or commitment to a mental institution was effectively a lifetime prohibition. Concerns were expressed to Congress about the permanence of this prohibitor and the life-long effect it would have on persons whose mental health adjudication or commitment records would be provided to the NICS under the Act's provisions. To address these concerns, the Act included not only provisions to require or promote the sharing of the existence of information about this disability for use by the NICS, but also provisions that require or authorize the establishment of federal and state programs that allow individuals to seek relief from the federal mental health firearms disability if circumstances warrant. As of December 2017, 31 states have enacted relief programs that have been certified by the state and approved by ATF.
ATF is available to answer questions about whether existing state laws meet the standards contemplated for the state relief from disability programs contemplated in the NICS Improvement Act. ATF is also available to provide technical assistance to states seeking to establish such programs under the Act. Also see State Relief from Disabilities Program Criteria.
The Act requires the Attorney General to establish for use by the states a methodology to calculate estimates of the total number of records in each of the subcategories of records subject to the grant program's reporting requirements. The Justice Department's Bureau of Justice of Statistics (BJS) developed a data collection instrument setting forth this methodology to send to each state's NCHIP point of contact agency. In doing so, BJS coordinated with representatives of the state criminal justice information repositories, state court administrators, the National Center for State Courts, the National Association of State Mental Health Directors, and others to obtain input on state record-keeping practices to help inform the development of a methodology. The previous data collection, State Estimates of Available Records Information Collection, approved by the Office of Management and Budget (OMB), was sent to each state for completion. To date, BJS has received estimates from 47 jurisdictions. A Frequently Asked Questions document was also available to assist respondents in completing the form. Three years of data have been collected to date. The NICS Improvement Amendments Act: State Records Estimates Development and Validation Project, Year Three Report provides information on the results of the third year of collection. BJS is continuing to work with state and federal partners to explore revised methodologies to assess record completeness and availability.
FOR STATE AND TRIBAL GOVERNMENTS: Section 103 of the Act, regarding implementation assistance to the states, provides that the grants "shall be used by the States and Indian tribal governments, in conjunction with units of local government and State and local courts, to establish or upgrade information and identification technologies for firearms eligibility determinations."
The law provides that grant to states or Indian tribes may only be used to—
- create electronic systems, which provide accurate and up-to-date information that is directly related to checks under the NICS, including court disposition and corrections records
- assist states in establishing or enhancing their own capacities to perform NICS background checks
- supply accurate and timely information to the Attorney General concerning final dispositions of criminal records to databases accessed by NICS
- supply accurate and timely information to the Attorney General concerning the identity of persons who have a federally a prohibiting mental health adjudication or commitment
- supply accurate and timely court orders and records of misdemeanor crimes of domestic violence for inclusion in federal and state law enforcement databases used to conduct NICS background checks
- collect and analyze data needed to demonstrate levels of state compliance with the Act
- maintain the relief from disabilities program in accordance with section 105, but not less than 3% and no more than 10% of each grant shall be used for this purpose.
FOR STATE COURT SYSTEMS: Section 301 of the Act, regarding grants to state court systems for the improvement of automation and transmittal of disposition records, provides that grants shall be made to each state, consistent with state plans for the integration, automation, and accessibility of criminal history records, for use by the state court system to improve automation and transmittal to federal and state repositories of—
- criminal history dispositions
- records relevant to determining whether a person has been convicted of a misdemeanor crime of domestic violence or is the subject of a prohibiting domestic violence protection order
- prohibiting mental adjudications and commitments.
The law provides that the amounts granted shall be used by the state court system only to—
- carry out, as necessary, assessments of the capabilities of state courts to automate and transmit arrest and conviction records, court orders, and mental health adjudications or commitments to federal and state record repositories
- implement policies, systems, and procedures to automate and transmit arrest and conviction records, court orders, and mental health adjudications or commitments to federal and state record repositories.
Recognizing the need to automate state record systems that contribute most of the relevant information to the FBI record systems that would be checked by the NICS, the Brady Act established NCHIP, a program of grants to be used by the states to create or improve computerized criminal history record systems, assist in the transmittal of criminal records for use by the NICS, and improve access to the NICS. NCHIP is administered by the Department's Office of Justice Programs through the Bureau of Justice Statistics. At the state level, NCHIP grants are administered by state agencies designated by the Governor for this purpose. Since 1995, NCHIP has provided over $699 million in grants to the states to improve the automation of their record systems that contribute to the FBI information used in NICS checks.
Notwithstanding these efforts under NCHIP and the tremendous progress the state and federal criminal justice information repositories have made in record automation since 1995, the databases checked by the FBI are still missing significant percentages of relevant data that originate in the states, including final dispositions of records of arrests for prohibiting offenses, records of convictions for domestic violence misdemeanor offenses, and information identifying persons with prohibiting domestic violence protection orders or with disqualifying mental health adjudications and commitments.
The NICS Improvement Act grant programs do not supplant NCHIP. Rather, the NICS Improvement Act grants are to be made in a manner "consistent with" and "in accordance with" NCHIP. The major difference from NCHIP is that the NICS Improvement Act grants may only be used for specified purposes that are related to achieving the completeness goals for the records directly related to NICS checks. In addition, the NICS Improvement Act authorizes a separate grant program for funding that is dedicated to be used by state courts systems, where most of the disposition information missing from the national repositories originates.
Fifteen states received NICS Improvement Amendments Act funding in FY 2017, totaling $11.2 million.
For more information on state-specific projects go to State-by-State Information.
According to the 2019 BJS Survey of Law Enforcement Personnel in Schools (SLEPS), there was a total of about 24,900 sworn SROs employed by about 5,500 local police departments, sheriffs’ offices, and school district police departments.