NICS-adjusted background checks were just released, reflecting the highest September on record. The increase in volume makes this an opportune time to refresh our knowledge on selected elements of the process. Let’s spend some time reviewing the process, prohibited persons criteria and the various state participation efforts. Additional information can be obtained from FBI NICS, the ATF and other Federal and State resources.

The Process – At a Glance
The National Instant Criminal Background Check System, or NICS, was launched in 1998 in response to the Brady Act. It is used by Federal Firearms Licensees (FFLs) to determine firearm purchase eligibility. The check is “to ensure that each customer does not have a criminal record or isn’t otherwise ineligible to make a purchase,” says the NICS website.

• In summary, FFLs contact NICS via phone or through the NICS E-Check System upon completion of the ATF’s Form 4473. The methods of submission also vary by state, as discussed further, below.

• Customer information is compared to various databases such as the Interstate Identification Index, the National Crime Information Center, and the NICS Index. Foreign citizens are subject to Immigration Alien Query (IAQ) through the DHS U.S. Immigration and Customs Enforcement (ICE).
• The process results in a Proceed, Delay, Deny or Cancel, depending on background information or the method of submission (i.e., phone vs E-Check). A “Proceed” response permits a transfer at the FFL’s discretion, assuming other Federal, State and Local laws are adhered to. “Delay” responses spanning longer than three-business days are permitted to be transferred according to the same FFL discretion and state compliance.
• A Deny or Cancel status indicates, either: (1) The consumer’s information produced a possible or identical match or “hit” to the aforementioned databases; or (2) The submission did not include enough information. The appeals process is available on the NICS website, amongst other areas.
• NICS information must be accurately documented in Section B of the ATF Form 4473. Specifically, questions 21a-d requests the date that NICS was contacted, NICS or state transaction number, and the response.

Let’s review some of the criteria that makes a buyer ineligible, as written on the NICS website, the Federal Firearms Regulations Reference Guide and many other sources.

Prohibited Persons
The federally prohibiting criteria are as follows:

• A person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year or any state offense classified by the state as a misdemeanor and is punishable by a term of imprisonment of more than two years.
• Persons who are fugitives of justice—for example, the subject of an active felony or misdemeanor warrant.
• An unlawful user and/or an addict of any controlled substance; for example, a person convicted for the use or possession of a controlled substance within the past year; or a person with multiple arrests for the use or possession of a controlled substance within the past five years with the most recent arrest occurring within the past year; or a person found through a drug test to use a controlled substance unlawfully, provided the test was administered within the past year.
• A person adjudicated mental defective or involuntarily committed to a mental institution or incompetent to handle own affairs, including dispositions to criminal charges of found not guilty by reason of insanity or found incompetent to stand trial.
• A person who, being an alien, is illegally or unlawfully in the United States.
• A person who, being an alien except as provided in subsection (y) (2), has been admitted to the United States under a non-immigrant visa.
• A person dishonorably discharged from the United States Armed Forces.
• A person who has renounced his/her United States citizenship.
• The subject of a protective order issued after a hearing in which the respondent had notice that restrains them from harassing, stalking, or threatening an intimate partner or child of such partner. This does not include ex parte orders.
• A person convicted in any court of a misdemeanor crime which includes the use or attempted use of physical force or threatened use of a deadly weapon and the defendant was the spouse, former spouse, parent, guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited in the past with the victim as a spouse, parent, guardian or similar situation to a spouse, parent or guardian of the victim.
• A person who is under indictment or information for a crime punishable by imprisonment for a term exceeding one year.

Background Check Process By State

The method of background check may vary depending on the State in which the transaction is conducted. The following describes POC states, Partial POC states, Non-POC states and ATF-qualified Alternate Permit States.

“Point of Contact” (POC) States – Thirteen states acting on behalf of NICS. They  have agreed to implement and maintain their own Brady NICS Program, conduct firearm background checks for FFLs’ transactions in their respective states by electronically accessing NICS. These states include: California, Colorado, Connecticut, Florida, Hawaii, Illinois, Nevada, New Jersey, Oregon, Pennsylvania, Tennessee, Utah, and Virginia.

Partial POC States – Seven states have agreed to serve as a POC for handgun purchases but not for long gun purchases. Partial POC states for handgun and FBI for long gun background checks include: Maryland, New Hampshire, Washington, and Wisconsin. And, Partial POC states for handgun permit and FBI for long gun background checks include: Iowa, Nebraska, and North Carolina

Non-POC States – Thirty-six states/territories do not have POC status and rely on NICS for all firearm background checks. They are: Alabama, Alaska, American Samoa, Arizona, Arkansas, Delaware, District of Columbia, Georgia, Guam, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, New Mexico, New York, North Dakota, Northern Mariana Islands, Ohio, Oklahoma, Puerto Rico, Rhode Island, South Carolina, South Dakota, Texas, Vermont, Virgin Islands, West Virginia, and Wyoming,

ATF-qualified Alternate Permit States – Twenty-four states have at least one ATF-qualified alternate permit, which are issued by local or state agencies. Specific permit details can be found on the Permanent Brady Permit Chart at www.atf.gov/rules-and-regulations/permanent-brady-permit-chart. These states include: Alaska, Arizona, Arkansas, California, Georgia, Hawaii, Idaho, Iowa, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Montana, Nebraska, Nevada, North Carolina, North Dakota, South Carolina, Texas, Utah, West Virginia, Washington, and Wyoming.

NICS Resources and Contact Information
The FBI’s NICS website has a significant educational materials related to the broader process. Therein you will find Regulations, Statutes, General Information, Statistics and even videos pertaining to the process. The following are links to some of these helpful resources.

• NICS website
• Resources for Federal Firearms Licensees (FFLs)
• NICS check statistics by Month / Year
• ATF Form 4473
• And much more

The following contact information was made available by NICS on their website.

Federal Bureau of Investigation
Criminal Justice Information Services Division
Attention: Correspondence Group, Module D-2
1000 Custer Hollow Road
Clarksburg, WV 26306
Telephone Number: (304) 625-5590