BRADY BACKGROUND CHECKS: THE FIGHT TO PROTECT 23 YEARS OF LIFESAVING SUCCESS

Transcription

1 BRADY BACKGROUND CHECKS: THE FIGHT TO PROTECT 23 YEARS OF LIFESAVING SUCCESS

2 By any measure, the Brady Handgun Violence Prevention Act, known as the Brady law, is a shining example of successful public policy. Since Brady background checks took effect in 1994, they have blocked more than 3 million gun sales to felons, fugitives, domestic abusers, and people with mental illnesses so severe that they are a danger to themselves or others people we all agree shouldn t have access to guns. Countless lives have been saved as a result. As the only gun violence prevention organization in U.S. history to pass national gun safety legislation, the Brady Campaign to Prevent Gun Violence uniquely knows what it takes to win on this issue. The fact is, it took six years, seven votes in Congress, and three presidential administrations to pass this historic legislation. It took the extraordinary perseverance of two true American heroes, Jim and Sarah Brady, and the organization that now bears their name, to rally the American public into a force more powerful than the influence of the corporate gun lobby. It took countless hours of lobbying, relentlessly calling out elected leaders and holding them accountable, to put the safety of the American people first. Despite our triumph in passing the Brady Law, and 23 years of continued success at keeping guns out of dangerous hands, today only half of Americans live in states with expanded Brady background checks. Over the last two decades, the Internet and gun shows have changed the way Americans buy guns. Today, 1 of every 5 guns sold is purchased without a Brady background check at a gun show, online, or in other private transactions that s thousands of guns sold to nobody knows who, with no way to ensure those guns don t wind up in dangerous hands. This is one reason why gun violence remains a devastating public health and safety crisis in our nation. But there are simple, sensible solutions to this problem, such as expanding Brady background checks to every gun sale. We know this approach works. In states with background checks for every gun sale, fewer women are killed by intimate partners, fewer law enforcement officers are shot by criminals, and suicide rates are lower. That s why today, this organization s goal is to finish what we started and expand effective, lifesaving Brady background checks to all gun sales a goal supported by more than 90 percent of Americans. But just like Jim and Sarah Brady, we have our work cut out for us. The corporate gun industry is willing to spend whatever it takes to make sure we don t succeed. Fortunately, though, this organization has proven we can win. We have shown that by rallying the voice of the American public and holding our elected leaders accountable to put our safety first, we can create historic change. We have pushed this issue, once again, to a historic tipping point, engaging the American people in unprecedented numbers and intensity. And just like Jim and Sarah Brady, we are going to win, because we are in this for the long haul to do whatever it takes to Finish the Job this organization started and make this the safer nation we all want and deserve. Sincerely, Dan Gross President Brady Campaign to Prevent Gun Violence

3 CONTENTS 02 Executive Summary 03 History & Timeline of the Brady National Instant Criminal Background Check System (NICS) 05 The Impact of Brady Background Checks 08 Efforts to Rollback & Undermine the Brady National Instant Criminal Background Check System 10 Loopholes in the Background Check System & State-Led Actions To Close Them 14 Conclusion 15 Endnotes

4 Executive Summary Three years ago, the Brady Campaign published 20 Years of Brady Background Checks: The Case for Finishing the Job to Keep America Safer. It chronicled the story of Jim and Sarah Brady, who worked tirelessly to pass the bill that would implement the current background check system, which has grown into a robust mechanism responsible for halting more than 3 million gun sales to prohibited purchasers. 1 In 2014, we told you why it was so important to expand lifesaving Brady background checks to every gun sale. The world we live in today looks drastically different from the one Jim and Sarah knew in 1994: the Internet has made it easy for dangerous people to find and acquire guns thanks to a loophole in federal law that allows private, unlicensed sellers to sell firearms without performing a background check. Since that report was published, the political climate has drastically shifted. The success of Brady background checks and the National Instant Criminal Background Check System (NICS) system are widely recognized and tied to tangible results. Despite the fact that popular support in favor of expanding background checks to every gun purchase is higher than ever, the gun industry and its allies in the executive and legislative branches have instead launched an all-out attack on some of the basic tenets of the system. As we marked the 10-year anniversary of the Virginia Tech massacre, Congress was hard at work rolling back protections designed to expand reporting of dangerous people into the NICS system that were passed in the wake of that tragic attack. At a time when we should be spending resources to update and strengthen our current background check system, these bills seek to weaken the greatest and best defense our nation has erected to stop dangerous individuals from gaining access to guns. Meanwhile, advocates of common sense gun laws, who have always faced an uphill battle in Congress, are turning the tide against the corporate gun lobby by introducing and passing new legislation at the state level. States are improving upon the Gun Control Act by enacting stronger gun laws to prevent domestic abusers and hate crime perpetrators from purchasing and possessing firearms, expanding background checks to all gun sales regardless of the seller, and working to close the loophole that enables a small but significant percentage of gun purchases to proceed after 3 business days regardless of whether or not the background check has been completed. Change never happens overnight, and this is a fight for the long haul. This report is not the end of the story, but a critical update regarding both real threats to and real opportunities for the Brady background check system a system we know works and saves lives and a reminder of all the reasons that we cannot for a moment give up our fight to Finish the Job and expand Brady background checks to all gun sales. As we marked the 10-year anniversary of the Virginia Tech massacre, Congress was hard at work rolling back protections designed to expand reporting of dangerous people into the NICS system that were passed in the wake of that tragic attack. 02 BRADY BACKGROUND CHECKS: THE FIGHT TO PROTECT 23 YEARS OF LIFESAVING SUCCESS

5 History & Timeline of the Brady National Instant Criminal Background Check System (NICS) In the 1960s, gun homicide rates began rising alongside the tumult of social and cultural change in the United States. 2 Within five devastating years, President John F. Kennedy, civil rights leader Martin Luther King, Jr., and Senator Robert F. Kennedy were all shot and killed. Reeling from those enormous losses, and hoping to prevent further gun violence, Congress passed the Gun Control Act of 1968 (GCA). 3 The GCA sought to keep guns out of dangerous hands by banning mail order long-gun sales, and prohibiting most felons, substance abusers, and certain people with mental illnesses from purchasing guns. The GCA, while a powerful tool for reducing gun violence, nonetheless lacked an effective enforcement mechanism. When a president was once again touched by gun violence, nearly 20 years after John F. Kennedy s assassination, advocates finally developed that enforcement mechanism. The Fight Begins In 1981, shots rang out as President Ronald Reagan and his entourage exited a Washington, D.C. hotel. A mentally ill man suffering from severe delusions attempted to assassinate the President. President Reagan was seriously injured but recovered fully within months. During the attempt on Reagan s life, however, his press secretary, James Brady, suffered a gunshot wound to the head and almost died. Two police officers were also injured. Though Brady survived, the shooting left him paralyzed and affected his health throughout his life. Following this attack, Jim and his wife Sarah dedicated their lives to gun violence prevention and advancing public policy to reduce the likelihood of other avoidable tragedies. Jim and Sarah worked tirelessly to pass legislation to ensure an effective system was in place to stop handgun sales to dangerous people at the point of sale. At the time, guns were sold almost exclusively by federally licensed firearms dealers (FFLs). Jim and Sarah lobbied Congress for six years, and in 1993, the Brady Handgun Violence Prevention Act was finally passed. The Brady Law Signed by President Bill Clinton, the Brady law established an enforcement mechanism to stop the following prohibited purchasers: 1. anyone who has been convicted of a crime punishable by imprisonment for a term exceeding one year; 2. fugitives; 3. unlawful users of controlled substances; 4. anyone who has been adjudicated as a mental defective or who has been involuntarily committed to a mental institution; 5. aliens either illegal aliens or those admitted under a nonimmigrant visa; 6. anyone who has been discharged from the Armed Forces under dishonorable conditions; 7. anyone who has renounced his United States citizenship; BRADY BACKGROUND CHECKS: THE FIGHT TO PROTECT 23 YEARS OF LIFESAVING SUCCESS 03

6 8. anyone who is subject to a restraining order intended to protect that person s intimate partner or child of such intimate partner, if the restraining order includes a finding that the person represents a credible threat to the physical safety of the intimate partner or child or explicitly prohibits the use of force against such intimate partner or child; 9. anyone who has been convicted in any court of a misdemeanor crime of domestic violence. The Gun Control Act, with the enforcement mechanisms in the Brady Law, has withstood Second Amendment challenges in courts across the country, where judges have repeatedly recognized that certain categories of people should be prohibited from purchasing or possessing guns in order to preserve public safety. In the opinion authored by Justice Antonin Scalia in District of Columbia v. Heller, the Supreme Court emphasized that nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill. 4 The Brady Act added key enforcement tools to the nation s gun laws, requiring licensed gun dealers to conduct a background check to ensure every potential purchaser is eligible under law to purchase a firearm. The Brady law established the National Instant Criminal Background Check System (NICS), the FBI-maintained system for administering background checks that launched in In addition to the federal NICS system, states may create their own background check records system. NICS strength depends on the quality, reliability, and consistency of information submitted to it by law enforcement in all fifty states, U.S. territories, and federal agencies. Deadly Holes Exposed The 2007 Virginia Tech massacre exposed deadly holes in the current NICS system. The shooter was able to purchase the firearm he used to kill 32 fellow students and staff and injure another 17 because the state failed to report critical information that disqualified him from purchasing and possessing firearms to NICS. Recognizing these gaps, Congress passed the NICS Improvements Amendments Act of 2007 (NIAA). 5 The NIAA, signed by President George W. Bush, sought to fill these reporting gaps by streamlining the reporting process, and authorized $1.3 billion in grants to states to help improve local reporting to NICS. The National Rifle Association openly supported the act at the time of its passage. The NIAA mandated that federal agencies, including the Department of Veteran s Affairs and the Social Security Administration, report to NICS anyone who has been adjudicated mentally defective, meaning the person: (1) is a danger to himself or others; (2) lacks the mental capacity to contract or manage his affairs; (3) is found insane by a court in a criminal case; or (4) is found incompetent to stand trial, or not guilty by reason of lack of mental responsibility. 5 Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill. Justice Antonin Scalia 04 BRADY BACKGROUND CHECKS: THE FIGHT TO PROTECT 23 YEARS OF LIFESAVING SUCCESS

7 The Impact of Brady Background Checks Each year, more than 112,000 Americans are victims of gun violence, and more than 33,000 die. Signed into law on November 30, 1993, the Brady Law aims to prevent the purchase of firearms by individuals who have proven to be a danger to themselves or others. NICS has processed over 255 million purchase requests and has denied approximately three million transactions. 7,8 Between 1994 and 2010, an average of 343 prohibited purchasers were blocked from buying guns every day. 9 A 2016 study found that more than 90 percent of Americans support universal background checks including more than 80 percent of gun owners. 10 Since the Brady law went into effect, gun murders fell by an astonishing 32 percent from 1993 to 2006, and has continued to hold steady or decline ever since. 11 While it is proven that background checks are effective in preventing dangerous people from obtaining guns, the Brady law was crafted at a time when Internet sales and sales at gun shows by private sellers did not account for a substantial portion of the gun market. Today, they do. Most recent statistics show that one in five gun purchasers complete the purchase without undergoing a background check, and a large proportion of them likely use the Internet to find their gun and purchase it in no questions asked transactions. 12,13 Clearly the Internet and gun show loophole undermine the intent and purpose of the Brady law. Recognizing this, 19 states and the District of Columbia have chosen to build upon the current system established by the Brady law and have expanded background checks to at least some private sales. 14,15 However, until we close the private sale and gun show loophole in all states, we cannot be assured that dangerous people will be blocked from purchasing guns online and at gun shows in states that have not expanded Brady background checks. Given the proven public safety benefits associated with expanded background checks, it is clearly in our interest to move forward to close this loophole nationwide. Every year in America: 114,000+ victims of gun violence 33,000+ die from gun violence 17,000+ kids & teens are shot State Level Expansion States that have expanded the scope of their background checks have seen impressive results 53 percent fewer law enforcement officers are shot and killed in the line of duty, 47 percent fewer women are shot by intimate partners, and cities in states with expanded background checks see a 48 percent reduction in gun trafficking. 16 Additionally, a recent study conducted by scholars at the University of Southern Mississippi revealed a correlation between a state s use of background checks and rates of suicide. 17 That study found significant differences in suicide rates in states that have adopted universal background checks and mandatory waiting periods in comparison to those without these laws. Over the course of just one year, research showed a decrease of 0.29 suicides per 100,000 people, whereas states without universal background checks saw a marked increase of 0.85 per 100, In a nation where roughly half of the country lives in states BRADY BACKGROUND CHECKS: THE FIGHT TO PROTECT 23 YEARS OF LIFESAVING SUCCESS 05

8 with universal background checks, the implications of this study suggest that if the remaining states were to implement a law requiring a background check for every gun sale, approximately 1,800 lives could be saved from suicide by gun each year. The national suicide rate is currently 13 per every 100,000 people a 30-year high which makes these policies even more critical to saving lives. 19 The state of Oregon demonstrates the impact of expanded background checks. Oregon Senate Bill 941, enacted in 2015, requires all gun sales, If the states without universal background checks implemented laws requiring them for every gun sale: 1,800 lives could be saved from suicide by gun each year Stop Dangerous People From Getting Guns Expand Brady Background Checks WA OR CA NV ID AZ UT MT WY CO NM ND SD NE KS OK MN IA MO AR WI IL MS IN TN AL MI KY OH GA WV SC PA VA NC MD NY VT NH MA CT NJ ME RI DE DC TX LA AK FL HI No expanded background checks: States with: Voter Referendum Option to Expand Background Checks: AL GA IN KS KY LA MN NH AK AZ AR FL ID ME MO MS NM SC TN TX VA VT WI WV MT ND OH OK SD UT WY Background checks on all gun sales: CA CO CT DC DE NV* NY OR RI Background checks on all handgun sales: Permit required to purchase handguns: Permit required to purchase all guns: WA NE IA MI NC IL MA PA MD HI NJ *At time of publication of this report, the 2016 Nevada ballot initiative requiring background checks for private sales was not being enforced. 06 BRADY BACKGROUND CHECKS: THE FIGHT TO PROTECT 23 YEARS OF LIFESAVING SUCCESS

9 including online and gun show transactions, to include a search of Oregon s criminal history system, the Law Enforcement Data system, NICS, Oregon s stolen guns registry, and Oregon s mental health data system. 20 Before the implementation of universal background checks, a 2015 study found that two-thirds of Oregon law enforcement officers intentionally killed in the line of duty were murdered with guns. Of these fatalities, 56 percent were killed by an individual who was likely prohibited Impressive Results: States that have expanded the scope of their background checks 53% fewer law enforcement officers are shot and killed in the line of duty 47% fewer women are shot by intimate partners 48% reduction in gun trafficking from purchasing or possessing a firearm. 21 If we can decrease the odds that law enforcement will encounter a dangerous person with a gun in the line of duty, these laws will have successfully done their job. Oregon, like Virginia, investigates and prosecutes those who attempt to illegally purchase guns. Washington State voted to require background checks for all private gun sales in The first sale blocked by Initiative 594 took place less than 48 hours after its implementation. An individual with a felony warrant was prevented from purchasing a firearm from a gun show in Spokane, Washington, on December 6, And only one year after implementation, 50 firearm sales to prohibited purchasers had been blocked and 10,000 private sale background checks had been completed under the new law. 22 The Path Forward If supported and maintained, the framework established by the Brady law and NICS provides the strongest defense to keep guns out of dangerous hands. As a critical safeguard for our national safety and security, this system should be strengthened, not weakened. Oregon and Washington, as evidenced here, are two examples of states where legislation is producing real, life-saving results. While today approximately 50 percent of Americans live in states with expanded background checks, the other half still live in states where holes in our background check system give prohibited and dangerous people easy access to guns guns they could potentially carry into states with stronger laws. BRADY BACKGROUND CHECKS: THE FIGHT TO PROTECT 23 YEARS OF LIFESAVING SUCCESS 07

10 Efforts to Rollback & Undermine the Brady National Instant Criminal Background Check System Despite repeated efforts, 23 Congress has failed to expand Brady background checks even in the wake of the horrific mass shootings in Newtown, Connecticut in 2012, and at the Pulse Night Club in Orlando, Florida in What is even worse is the current systematic campaign in Congress to undermine the best gun violence defense system we have. In just the first 50 days of the Trump Administration, Congress voted to reverse a rule that would have reported to NICS the names of Social Security recipients who both receive benefits because they are unable to work due to mental illness, and are also unable to manage their financial affairs due to their illness. The House voted almost exclusively on party lines, , on February 2, 2017 to rescind the rule. The Senate then passed the repeal bill on February 15, by a vote of 57-43, again largely along party lines. President Trump quietly signed the bill into law on February 28th. 24 The passage of this legislation prohibits the Social Security Administration (SSA) from annually reporting approximately 80,000 at-risk individuals to NICS. 25 About 90 percent of individuals who die by suicide experience mental illness in their lifetime. 26 Firearms are the leading method of suicide, and have an unusually high rate of lethality. About 85 to 91 percent of suicide attempts with a gun are fatal. 27 Preventing people with mental illnesses who are in crisis from easily accessing firearms, therefore, is literally a matter of life and death and the reversal of this rule is a tragic step in the wrong direction. 85% of suicide attempts with a gun are fatal. Also in February, House Veterans Affairs Committee Chairman Phil Roe (R-TN) introduced H.R. 1181, the so-called Veterans 2nd Amendment Protection Act to prevent the U.S. Department of Veteran s Affairs (VA) reporting of at-risk veterans to the background check system. As Rep. Elizabeth Esty, who represents Newtown, CT, said in leading opposition to the bill, there is a veteran suicide crisis in this country, a crisis that is enabled by easy access to firearms. Today, on this day that we have this debate, 20 brave men and women who have worn the uniform in service of this country will take their lives in suicide, and the vast majority of them will use a gun. Nevertheless, the House passed H.R on March 16, by a vote of Congress had just codified the VA s rule as part of the bipartisan 21st Century Cures Act in December The Senate took action on the first day it could to hotline H.R. 1181, bypassing the regular order requiring a hearing on legislation passed from the House, and allowing the bill to be brought straight to the floor for a possible vote at any time. President Trump has indicated that he will sign the bill if it comes to his desk. A Race to the Bottom Not to be left behind in their mad dash to undermine the existing background check system, Trump s Attorney General Jeff Sessions and the Justice Department under his purview, moved to narrow the category of those considered to be a Fugitive from Justice and thus prohibited from acquiring or possessing a firearm. Under this narrowed definition of fugitive, only fugitives who: 1) have crossed state lines; 2) have done so to avoid prosecution from a crime or to avoid testifying in 08 BRADY BACKGROUND CHECKS: THE FIGHT TO PROTECT 23 YEARS OF LIFESAVING SUCCESS

11 a criminal proceeding; and 3) are subject to a current or imminent criminal prosecution or testimonial obligation, are barred from buying guns. 29 The Federal Bureau of Investigation (FBI), which is responsible for maintaining the NICS system, had long asserted that crossing state lines wasn t a requirement to be considered a fugitive, and any individual wanted for an outstanding arrest warrant was considered a prohibited purchaser whether they had crossed state lines or not. 30 This new directive by DOJ reverses the long-standing FBI approach and will now enable a suspect fleeing the police in Dallas to buy a gun in Waco because no state lines have been crossedeven if he faces an arrest warrant for murder. As a result of this interpretation by DOJ, approximately 500,000 names of individuals facing criminal charges were removed from the NICS system. Unfortunately, this isn t the end of the story: Rep. Richard Hudson (R-NC) introduced H.R. 38, the Concealed Carry Reciprocity Act on January 3, If enacted, this legislation would, among other things, allow people who cannot legally buy or own a gun in their home state to nonetheless acquire a permit from another state and carry a hidden, loaded gun in any other state based on that permit. This would create a race to the bottom that would undermine public safety across the country and force states to accept other states weaker laws, a policy opposed by 9 of the leading national law enforcement organizations. 32 H.R. 38 currently has almost 190 cosponsors, and is likely to follow the same irresponsible, rushed process outside of regular order toward enactment as H.R Senator John Cornyn (R-TX) has reintroduced similar companion legislation, S. 446, the Constitutional Concealed Carry Reciprocity Act in the Senate, where it currently has 36 co-sponsors. 33 Deadly Silence In addition, the corporate gun industry, led by the National Rifle Association and empowered by a new ally in the Executive Branch, is advocating for legislation in Congress to remove silencers from the National Firearms Act of 1934 (NFA). The NFA requires purchasers to submit fingerprints and a photograph, pay a special tax, and undergo a federal background check through NICS to obtain a silencer. Silencer owners cannot sell to other private parties without going through the NFA process, unlike the current federal private sale loophole for firearms. Since 1934, silencers have been legal and yet tightly regulated by the NFA along with short-barreled shotguns and rifles, machine guns, and destructive devices. This process was put in place to carefully regulate the market for silencers, and ensure they were not being used in crime. Like the Brady law, this program has been an overwhelming success. If silencers are deregulated by Congress, the same federal private sale loophole identified in this report would allow silencers, like guns, to be sold without background checks by private sellers, creating a large and unregulated market in silencers that dangerous individuals and organizations would seek to immediately exploit. Until the federal private sale loophole in our background check system is closed, we should not be adding additional risk and enabling more items to be sold without proper background checks BRADY BACKGROUND CHECKS: THE FIGHT TO PROTECT 23 YEARS OF LIFESAVING SUCCESS 09

12 Loopholes in the Background Check System & State-Led Actions To Close Them Despite Congressional inaction and a flurry of new attacks by the Executive Branch on longstanding prohibitions that prevent guns from ending up in dangerous hands, many state officials and legislatures are marching to the beat of a different drum by expanding and strengthening sensible gun laws. A Lethal Loophole One of the worst mass shootings in recent history, at the Emanuel African Methodist Episcopal Church in Charleston, S.C., exposed an area of weakness in our gun laws known as the default proceed rule. Default proceed allows a federally licensed gun dealer to sell a firearm to a customer without a background check if the check is not completed within three business days of the request being filed by the dealer. 35 Most background checks initiated to NICS take only a few minutes to complete. According to the FBI, approximately 92 percent of requests receive an instant verdict. 36 When the FBI cannot make a determination within three days, the system allows the sale to go forward rather than continue to keep the sale on hold. The law should be changed to close this Charleston Loophole so named because the shooter at the church in Charleston was able to obtain his gun through this default proceed rule. FBI data shows that if the background check takes longer than 24 hours to complete, the potential purchaser is approximately 20 times more likely to be a prohibited purchaser. 37 There have been various efforts to close the Charleston loophole at the federal and state levels, on both a resource and policy level. As a resource matter, President Obama directed the FBI to hire 230 new investigators for the NICS system in January 2016 to augment staff and increase the pace of background checks. 38 Background check statistics give us insight into the daily consequences of a default proceed purchase, which is putting guns in the hands of convicted domestic abusers, and risks thousands of lives every year as a result. While the majority (70 percent) of misdemeanor domestic violence denials from were denied within the allotted 3-day period, the remaining 30 percent weren t denied until after the 3-day period had expired, and the gun sale was allowed to proceed. According to a GAO analysis of FBI data, no other category of prohibiting factors (i.e. drug abuser, fugitives, etc.) had more than 20 percent of its denials delayed past three days. 39 In 2014 alone, more than 2,500 prohibited purchasers were able to obtain guns through the default proceed rule. 40 At the policy level, legislators have been introducing bills across the country aimed at reducing the number of default proceed sales that take place by allowing extra time to complete a federal background check. A 2016 Oregon bill extending the time for notification on a background check before a sale can be completed from 3 to 10 days has been reintroduced in the current legislative session. 41,42 The bill is currently pending in the State Senate. 43 South 10 BRADY BACKGROUND CHECKS: THE FIGHT TO PROTECT 23 YEARS OF LIFESAVING SUCCESS

13 Carolina legislators are advancing a bill to expand the number of days to complete a background check from three to five business days, and would require law enforcement to expedite reporting of prohibited purchasers to the NICS system so that it is as up-todate and timely as possible. 44 On the federal level, Senator Richard Blumenthal (D- CT) and Rep. James Clyburn (D-SC) introduced similar bills, H.R and S. 2213: The Background Check Completion Act to close the Charleston Loophole, but, even as H.R had 85 co-sponsors and S had 16, neither bill garnered support or consideration from the majority leadership in either House during the 114th Congress. By extending the timeframe to complete a full and thorough investigation of a potential purchaser, we ensure that the background check system works as intended, and saves lives by preventing dangerous individuals from purchasing guns. Disarming Hate A new Center for American Progress analysis of the National Crime Victimization Survey brought to light a troubling element of gun violence in our nation over the span of five years, approximately 43,000 hate crimes were committed with guns. 45 A recent report by the Center for the Study of Hate & Extremism suggests hate crimes are rising at a startling rate across the country: their newest study shows an increase of more than 20 percent in major U.S. metropolitan areas in While felony hate crime convicts are prohibited from owning firearms, those convicted of misdemeanor hate crimes may still be able to purchase and own guns. 47 Thirty states have statutes under which individuals can be prosecuted for misdemeanor hate crimes 48 but a 2016 analysis found that only six states Delaware, Maryland, Massachusetts, Minnesota, Oregon and New Jersey preclude individuals convicted of misdemeanor hate or bias-motivated crimes from buying and possessing guns. 49 Given the rising number of hate crimes, legislators are taking note and trying to address the problem with better mechanisms to prevent and deter these crimes. A bill was introduced in California in February 2017, to prohibit the possession of firearms for ten years by anyone convicted of a hate crime misdemeanor. 50 These local efforts to bolster state mechanisms demonstrate the progress being made in realms that have proven elusive on a national level. However, there are some in Congress who have championed gun laws at the federal level, like Democrat David Cicilline from Rhode Island, who introduced the Hate Crimes Prevention Act in the U.S. House of Representatives in The bill had 74 cosponsors and would have prohibited the purchase or possession of firearms by anyone convicted of a misdemeanor or sentence enhancement pursuant to a hate crime statute. 51 Pennsylvania Democrat Bob Casey introduced comparable legislation in the Senate. Unfortunately, due to Congressional gridlock, these bills were not even afforded a vote. Domestic Violence and Guns According to research commissioned by the CDC, one-third of all women and one quarter of all men have been victims of physical violence by an intimate partner at some point in their lives. 52 While these numbers are startling on their own, the addition of guns to a domestic violence situation increases the risk of homicide by five hundred percent. 53 Advocates and policy makers recognized this dangerous connection between intimate partner violence and firearms when domestic violence misdemeanors and felonies were included in the Of the 93 percent of women who were killed by a man they knew, 63 percent were intimate acquaintances of the killer. BRADY BACKGROUND CHECKS: THE FIGHT TO PROTECT 23 YEARS OF LIFESAVING SUCCESS 11

14 Brady law as prohibiting factors for gun purchases. However, federal law does not include dating abuse as a prohibiting factor, unless the parties are cohabitating, or have a child together. Known as the boyfriend loophole, the lack of protection for dating partners enables many domestic abuse perpetrators to continue to purchase firearms and use those guns to intimidate, harass, or kill their intimate partners. Modern dating patterns have changed the ways that domestic violence is perpetrated. While in 1980, nearly 70 percent of homicides between intimate partners were committed by a spouse, less than 30 years later, that number was down to 47 percent, while the amount of intimate partner murders committed by a dating partner is 49 percent. 54 In 2014, of the 93 percent of women who were killed by a man they knew, 63 percent were intimate acquaintances of the killer. 55 We know that a conviction for a misdemeanor crime of domestic violence represents the third-most frequent reason for denial of a FBI-conducted background check, after a felony conviction and outstanding arrest warrant. Between November 30, 1998 and July 31, 2014, more than 109,000 people convicted of a misdemeanor crime of domestic violence were prohibited from purchasing a firearm. 56 The exception that allows dating partners to continue to purchase and bear weapons simply because they are not married to the victim demonstrates a dangerously outdated loophole that must be closed. While federal legislation ending the so-called boyfriend loophole languished in the 114th Congress, states are bringing this issue to light and making meaningful strides to close this loophole. More than fourteen states have expanded the definition of a domestic violence abuser to include dating partners, 57 and traditionally red states like Louisiana and South Carolina have passed meaningful bipartisan legislation limiting the ability of domestic abusers to obtain firearms. California and Connecticut are two states that have successfully prohibited the purchase and possession of firearms by those convicted of certain violent misdemeanors, regardless of the relationship between victim and offender. 58,59 Delaware has expanded its domestic violence laws to include any person with whom the victim had a substantive dating relationship, at the time of or within 3 years prior to the offense. 60 Washington State includes persons older than 16 in a dating relationship as a category in which one can be prohibited from possessing guns when a violent misdemeanor offense is involved. 61 Hawaii allows domestic violence restraining/protective orders to be brought against anyone with whom the victim had a dating relationship. 62 The progress in these states is directly in line with American values. A 2014 survey showed that two-thirds of Americans support expanding the definition of domestic violence to include dating partners to fully protect unmarried at-risk victims from abuse, violence, and death. 63 In tandem with state legislative victories, the United States Supreme Court has upheld and further defined the portion of the Gun Control Act that prohibits individuals with misdemeanor domestic violence convictions from purchasing and 12 BRADY BACKGROUND CHECKS: THE FIGHT TO PROTECT 23 YEARS OF LIFESAVING SUCCESS

15 possessing guns. In United States v. Castleman, a Tennessee man convicted of misdemeanor domestic violence argued that his conviction for assaulting the mother of his child should not preclude him from buying or possessing a gun because his domestic violence crime did not include violent, physical force. In 2014, the Supreme Court unanimously clarified that the use of violent, physical force was not a prerequisite for a person convicted of a domestic violence misdemeanor to be precluded from owning or purchasing guns. 64 A year later, two Maine men challenged the Gun Control Act yet again when they appealed their domestic violence charges to the Supreme Court in Voisine v. United States. They argued that their crimes of reckless domestic violence were not knowing or intentional and that, as a result, the prohibition on purchasing or possessing firearms should not apply to them. Both men were convicted of unlawful firearms possession after they were convicted of domestic assault one for hitting his girlfriend while drunk, and the other for pushing his wife into a wall. In 2016, the Supreme Court, in another unanimous decision, determined that a reckless crime of domestic violence qualifies as a misdemeanor crime of domestic violence under Section 922(g) of the GCA pursuant to which an individual can become a prohibited purchaser. In its holding, the court noted [r]eckless conduct, which requires the conscious disregard of a known risk, is not an accident: It involves a deliberate decision to endanger another. 65 Crisis Intervention While federal and state laws aim to cover people too dangerous to own guns felons, fugitives from justice, those who have been involuntarily committed for mental health services there are individuals who don t fit into one of these categories and yet may not be able to responsibly possess a gun. In these cases, a new type of law is being developed. For those instances where an individual poses a danger to himself or others, a concerned family member or a law enforcement officer in California, Connecticut, and Washington can petition a court for a risk-based gun violence restraining order. These laws create a legal mechanism to take preventative action when there are warning signs of violence, but the individual doesn t fall under a prohibited category. In 1999, Connecticut became the first state to pass a law of this type. It allows law enforcement to seek removal of firearms from a person where there is imminent risk of danger to themselves or others. A recent study examining the implementation of this law from 1999 to 2013 estimated it may have prevented approximately 100 suicides, showing how legislation of this nature is a promising method of preventing gun violence on an individual level. 66 Indiana and Texas have similar laws. In 2014, California followed Connecticut s example, but added a new and important component. The Gun Violence Restraining Order (GVRO) bill, signed by Governor Jerry Brown on September 30, 2014, is the first risk-based bill that allows family or intimate partners to directly petition the court for an order. 67 A temporary, three week-long GVRO can be ordered by a judge. A permanent (up to a year) restraining order can also be issued after a full hearing, where the petitioner (whether it be a family member or law enforcement officer) presents compelling evidence that the individual has a high likelihood of using a gun to harm themselves or another person. On November 8, 2016, nearly 70 percent of Washington State voters approved a similar policy, called the Extreme Risk Protective Order. 68 This law allows a family member, cohabitator, dating partner, or law enforcement officer to petition for a court order that will temporarily prohibit an individual from purchasing or accessing firearms because the petitioner believes they pose a significant danger to themselves or others. 69 Similar to the California law, a 12-month protection order can be issued after a full hearing. This policy is effective because it is based on behavioral risk factors for dangerousness. It gives BRADY BACKGROUND CHECKS: THE FIGHT TO PROTECT 23 YEARS OF LIFESAVING SUCCESS 13

16 family, friends and loved ones the tools to protect individuals in crisis, including those who may be suicidal, a risk to others, or in danger of committing extreme violent acts. The law was crafted with a focus on protecting the safety of the public, while also respecting rights of the individual. In April 2017, Prosecutors Against Gun Violence, the Law Enforcement Partnership to Prevent Gun Violence, and American State Legislators to Prevent Gun Violence convened a summit and announced a joint 20-state effort to enact Gun Violence or Extreme Risk Protection Orders, as well as a fivestate effort to recover firearms from prohibited domestic abusers. These risk-based orders would allow concerned family or law enforcement to prevent gun tragedies by petitioning a court to temporarily restrict access to firearms for individuals who are at risk of hurting themselves or others. Conclusion Brady background checks save lives. At the state level, sensible gun laws are filling the gaps in federal policy by keeping guns out of the hands of people who shouldn t have them. The evidence is mounting that these laws, passed in the absence of Congressional action, are effective at reducing suicide rates, preventing shooting deaths of law enforcement officers, and preventing domestic violence murders with guns. But as long as weak federal law allows there to be a patchwork of state laws, states with weak gun violence laws will undermine others with strong ones. The 10-year anniversary of the Virginia Tech massacre is an important reminder that deadly gaps still exist in the background check system. Furthermore, every attempt by Congress to roll back provisions of the Brady and NIAA law and weaken the NICS system represents a potentially deadly erosion of proven protections. We will continue to fight these attempts to weaken our best method for keeping guns out of the hands of dangerous individuals with facts, including a 23-year record of nationwide success and evidence from states that have strengthened the NICS system. The political and policy landscape has shifted since we last analyzed the strength and stability of Brady background checks, but one thing remains clear: the system responsible for halting more than 3 million gun sales to potentially dangerous people is more critical to our safety now than ever. 14 BRADY BACKGROUND CHECKS: THE FIGHT TO PROTECT 23 YEARS OF LIFESAVING SUCCESS

17 Endnotes 1 This estimate was derived from data in the following reports: Office of Justice Programs, Bureau of Justice Statistics, Background Checks for Firearm Transfers, Statistical Tables, (2016), available at pub/pdf/bcft1314st.pdf and Federal Bureau of Intelligence, Federal Denials, denials.pdf/view (last accessed April 25, 2017). Approximately 312,000 sales were blocked during the interim period from , 1,338,294 sales were denied via state and local agencies from , and FBI data shows that 1,424,749 sales were denied by the federal system from Nov through March 31, D Vera Cohn, Paul Taylor, Mark Hugo Lopez, Catherine A. Gallagher, Kim Parker and Kevin T. Mass, Gun Homicide Rate Down 49% Since 1993 Peak; Public Unaware: Pace of Decline Slows in Past Decade, Pew Research Center (2013), available at (last accessed April 2017). 3 Gun Control Act of 1968, 18 U.S.C. 921, et al. 4 District of Columbia v. Heller, 540 U.S. 570, (2008), available at uploads/2008/06/ pdf. 5 NICS Improvement Amendments Act of 2007, 18 U.S.C. 922 (2008). 6 The NIAA also created a grant system for states to update their reporting systems, on the condition that the state recipients would create programs that would permit an individual who was adjudicated mentally defective under the Gun Control Act, or involuntarily committed to a mental institution, for restoration of their Second Amendment rights NICS Improvement Amendments Act of 2007, 121 Stat. 2559, 110 P.L See supra text accompanying note 1. 8 Office of Justice Programs, Bureau of Justice Statistics, (last accessed April 2017). 9 Brady Center to Prevent Gun Violence, 20 Years of Brady Background Checks: The Case for Finishing the Job to Keep America Safer, (2014), p. 9, available at bradycampaign.org/sites/default/files/brady-20-years-report. pdf (last accessed April 2017). 10 Quinnipiac University, Overwhelming Support for No-Fly, No-Buy Gun Law, Quinnipiac University National Poll Finds; Support for Background Checks Tops 90 Percent Again, June 30, 2016, available at us _u37mhwbr.pdf/ (last accessed April 2017). 11 Brady Center to Prevent Gun Violence, 20 Years of Brady Background Checks at Matthew Miller, MD, ScD, Lisa Hepburn, PhD, and Deborah Azrael, Firearm Acquisition Without Background Checks: Results of a National Survey, Annals of Internal Medicine 166, no. 4 (2017): 9, accessed March 21, 2017, available at Everytown for Gun Safety, Background Checks Prevent Gun Violence and Save Lives, infographic-background-checks-save-lives/ (last accessed April 2017). 14 The Law Center to Prevent Gun Violence, Universal Background Checks, policy-areas/background-checks/universal-backgroundchecks/. 15 The states that have expanded background checks to at least some private sales include: California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Massachusetts, Maryland, Michigan, New Jersey, Nebraska, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, and Washington. 16 Everytown for Gun Safety, Background Checks Prevent Gun Violence and Save Lives. 17 Michael D. Anestis, Joye C. Anestis, and Sarah E. Butterworth, Handgun Legislation and Changes in Statewide Overall Suicide Rates, American Journal of Public Health 107, no. 4 (2016), accessed March 15, 2017, available at AJPH Ibid., Nicholas Bakalar, Some Gun Laws Tied to Lower Suicide Rates, The New York Times, Mar. 15, 2017, available at 20 The Law Center to Prevent Gun Violence, Background Checks in Oregon, last updated Oct. 20, 2016, smartgunlaws.org/background-checks-in-oregon/. 21 Everytown for Gun Safety, Oregon Law Enforcement Deaths and Illegal Guns, available at everytownresearch.org/documents/2015/11/or-leoka.pdf (last accessed April 2017). 22 Alliance for Gun Responsibility, Initiative 594: Background Checks on All Gun Sales, available at org/solution/initiative-594-background-checks/ (last accessed April 2017). 23 H.R The Public Safety and Second Amendment Rights Protection Act, Sen. Manchin (D-WV) and Sen. Toomey (R-PA), 113th Cong., 48-50; S. Amdt to H.R. 2578, Sen. Murphy (D-CT), 114th Cong.; H.R The Public Safety and Second Amendment Rights Protection Act of 2015, Rep. King (R-NY), 114th Cong.; S. Amdt to S. Amdt 4685, Sen. Feinstein (D-CA), 114th Cong (cloture). 24 Ali Vitali, Trump Signs Bill Revoking Obama-Era Gun Checks for People with Mental Illnesses, NBC News, Feb. 28, 2017, available at trump-signs-bill-revoking-obama-era-gun-checks-peoplemental-n William Krouse, Scott Szymendera, William Morton, Gun Control, Mental Incompetency, and Social Security BRADY BACKGROUND CHECKS: THE FIGHT TO PROTECT 23 YEARS OF LIFESAVING SUCCESS 15

18 Administration Final Rule, (CRS Report No. R44752) (Washington, DC: Congressional Research Service, 2017), p. 12, available at (last accessed April 2017). 26 National Alliance on Mental Illness, Risk of Suicide, Related-Conditions/Suicide. 27 The Brady Center to Prevent Gun Violence, The Truth About Suicide & Guns, (2016), p. 3, available at Suicide-Report-2016.pdf (last accessed April 2017). citing Matthew Miller, Deborah Azrael, and David Hemenway, The Epidemiology of Case Fatality Rates for Suicide in the Northeast, Annals of Emergency Medicine 43, no. 6 (2004), accessed April 2, 2017, available at com/article/s (04) /abstract. 28 H.R. 1181, Veterans 2nd Amendment Protection Act, (last accessed April 2017). 29 U.S. Department of Justice, Federal Bureau of Investigation to CJIS Systems Officer and State Points of Contact, February 15, 2017, Re: New Guidance Regarding Persons Who Are Fugitives from Justice, documents/ fugitive-from-justice-guidance-state. html 30 Ann Givens, Justice Department Lowers Bar for Fugitives Who Try to Buy Guns, The Trace, Mar. 7, 2017, available at 31 H.R. 1181, Veteran s 2nd Amendment Protection Act. 32 Center for American Progress, Federally Mandated Concealed-Carry Legislation, Feb. 17, 2017, reports/2017/02/13/414921/federally-mandated-concealedcarry-legislation/ (last accessed April 2017). 33 S. 446, Constitutional Concealed Carry Reciprocity Act of 2017, 34 Gun violence prevention policies aren t just being threatened by the corporate gun lobby. On Inauguration Day, the Associate Deputy Director of the very agency charged with stopping gun crimes, the Bureau of Alcohol, Tobacco, Firearms and Explosives authored a white paper about reducing regulations and enforcement of gun crimes. It was designed to be an internal document, but was leaked to the press. Read the white paper here: com/g/documents/national/read-the-white-paper-on-firearmsregulations/2325/ U.S.C. 922(t)(1). 36 U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division, National Instant Criminal Background Check System (NICS) Operations Report (November 30, 1998-December 31, 1999) at 6, available at operations_report_98_99.pdf/view. 37 WSJ News Graphics, Five Questions About Background Checks, Wall Street Journal, Jan. 7, 2016, available at graphics.wsj.com/gun-check-explainer/. 38 Jeremy Borden, One Year Later, and the Loophole That Let the Charleston Shooter Buy His Gun Remains Wide Open, The Trace, June 16, 2016, available at org/2016/06/one-year-later-and-the-loophole-that-let-thecharleston-shooter-buy-his-gun-remains-wide-open/. 39 U.S. Government Accountability Office, Gun Control: Analyzing Available Data Could Help Improve Background Checks Involving Domestic Violence Records, GAO (Washington, DC, 2016), p , assets/680/ pdf (accessed April 1, 2017). 40 Criminal Justice Information Services Division of the Federal Bureau of Investigation, U.S. Department of Justice, National Instant Criminal Background Check System (NICS) Operations 2014, operations-report. 41 Denis C. Theriault, Gun Control: Stymied in 2016, Oregon Democrats Vow to Try Again in 2017, The Oregonian, Apr. 2, 2016, available at ssf/2016/04/gun_control_oregon_democrats.html. 42 Tim Becker, Governor, Groups Support Closing Gun Loopholes, Koin6, Feb. 21, 2017, available at com/2017/02/21/governor-groups-support-closing-gunloopholes/. 43 The Oregonian, 2017 Session: Senate Bill 797, available at 44 Maya Prabhu, Gun Buy Waiting Period Would Go From Three to Five Days Under South Carolina Bill Meant to Close Charleston Loophole, The Post and Courier, Mar. 8, 2017, available at a4ed9b e fd f.html. 45 Chelsea Parsons, Eugenio Weigend Vargas and Jordan Jones, Hate and Guns: A Terrifying Combination, Center for American Progress (2016), p. 9, available at reports/2016/02/24/131670/hate-and-guns-a-terrifyingcombination/ (last accessed April 2017). 46 Brian Levin, Special Status Report: Hate Crime Up 21% in Major U.S. Metro Areas in 2016, Center for the Study of Hate & Extremism California State University, San Bernardino (2017), available at files/3-17%20metro%2016-7%20hate%20rpt.pdf. 47 Parsons et al., Hate and Guns at 2, Hon. David Cicilline, Cicilline Introduces Legislation to Close Hate Crimes Loophole, Feb. 24, 2016, available at (last accessed April 2017). 49 Parsons et al., Hate and Guns at California Legislative Information, AB-785 Firearms: Possession of Firearms by Convicted Persons ( ), 16 BRADY BACKGROUND CHECKS: THE FIGHT TO PROTECT 23 YEARS OF LIFESAVING SUCCESS