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
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 1968.
2
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
NICS Participation
WA
AK
NH
MT
OR
ND
ID
WY
MN
WI
IA
AZ
KS
OK
NM
MO
AR
IN
TX
NJ
OH
WV VA
KY
DE
MD
NC
TN
DC
SC
MS AL
N. Mariana Islands
CT
PA
IL
CO
RI
NY
MI
UT
CA
ME
MA
SD
NE
NV
HI
VT
GA
LA
Puerto Rico
Guam
American Samoa
13
4
3
36
21
FL
Virgin Islands
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
4
www.atf.gov/firearms/brady-law/permit-chart.html
01/2013
Types of Records Searched By the NICS
Interstate
Identification
Index (III)
64,278,995
Criminal Records
National Crime
Information Center
(NCIC)
Files Inquiries
- Wanted Persons
- Protection Orders
- -Wanted
Persons
Immigration
- Protection
Violators Orders
- - Immigration
Violators
U.S. Secret Service
- Protective Interest
Protection
- Foreign Fugitive
- Foreign Fugitive
- Supervised Release
Supervised
- - National
Sex Release
Offender
- Registry
SENTRY
Sexual
- -Gang
FileOffenders
VGTOF
- Known or Appropriately
- Suspected
Missing Persons
Terrorist (KST)
During the
Background Check
Process . . .
5,201,887 Records
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
As of 1/2013
A Sampling of NICS Transactions
100 POTENTIAL GUN BUYERS
72 PROCEEDS
AT THE CALL CENTER
20 IMMEDIATELY
GIVEN A PROCEED
OR A DENY
28 TRANSFERRED FROM
THE CALL CENTER TO THE
FBI NICS SECTION
8 DELAYED FOR
ADDITIONAL RESEARCH
ULTIMATELY. . .
1.29 DENIALS FOR
EVERY 100 BACKGROUND CHECKS
6
Total Federal Denials
November 30, 1998 – January 31, 2013
Rank
1
2
3
4
5
6
7
8
9
10
11
12
Prohibited Category Description
Convicted of a crime punishable by more than one year or a misdemeanor punishable by
more than two years
Misdemeanor Crime of Domestic Violence Conviction
Fugitive from Justice
Unlawful User/Addicted to a Controlled Substance
State Prohibitor
Protection/Restraining Order for Domestic Violence
Under Indictment/Information
Illegal/Unlawful Alien
Adjudicated Mental Health
Federally Denied Persons File
Dishonorable Discharge
Renounced U.S. Citizenship
Total Federal Denials
Total
Percent of
Total
581,816
58.38%
102,030
95,878
81,867
43,661
42,744
19,796
12,068
10,429
5,498
714
57
996,558
10.24%
9.62%
8.21%
4.38%
4.29%
1.99%
1.21%
1.05%
0.55%
0.07%
0.01%
100.00%
1
12
11
10
2
9
8
7
6
5
4
3
7
Federal Firearm Prohibitions
18 U.S.C. § 922(g)(1)-(9) & (n)
8
 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
Protection Orders and
Domestic Violence
10
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
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
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bodily injury.
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
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
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
Identifying Firearm
Prohibitions in
Drug Cases
16
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
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
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
Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF) Regulation 27 CFR § 478.11
 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
How the NICS Section
Establishes a Drug
Prohibition
21
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
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
Establishing Inference of Use
 In accordance with CFR § 478.11, 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
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use or possession.
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.
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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
Examples of Drug Scenarios
the NICS Section Will
Research
27
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
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
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
Drug Charge Not Within the Past Year
with Conviction in the Past Year
 ATF has interpreted 27 CFR § 478.11 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
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
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 § 487.11)
 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
“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
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
Attempts and Conspiracies
 “Attempt” or “Conspiracy” to possess a drug/controlled
substance does not meet federal firearm drug prohibition
standards.
36
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
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
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.
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QUESTIONS?
40
Contact Information
Roberta A. Hatcher
Legal Administrative Specialist
NICS Section
(304) 625-7363
[email protected]
NICS Section’s Legal Research and
Analysis Team
[email protected]