Reporting Domestic Offenses to Background Check Systems: Does it Really Matter?
Published by: David Keck
Background check systems, such as the National Instant Criminal Background Check System (NICS), were created to work like a net; they are designed to catch and deter anyone not allowed to possess a gun before a purchase is completed. A net with a gaping hole in it, however, is not effective. Too much slips through, including dangerous domestic abusers seeking to purchase firearms.
When a gun is present in a domestic violence situation, it increases the risk of homicide for women by 11 times. In light of this escalated risk, Congress banned domestic abusers from possessing firearms over twenty years ago. To help enforce the ban, Congress mandated the creation of a system for conducting background checks on anyone attempting to purchase a firearm from a licensed gun dealer. Many states, as well as Native American Tribes, have created associated databases for purchases taking place within their jurisdictions.
Under federal law, there are nine separate categories of individuals prohibited from having guns. Of those nine, two are specifically included for evidence-based reasons: persons subject to qualifying domestic violence protective orders, and persons convicted of qualifying misdemeanor crimes of domestic violence (MCDV). Individuals who commit acts of domestic violence have been identified as likely candidates for future violence based upon the very nature of their crimes; hence, individuals subject to domestic violence protective orders, or convicted of misdemeanor crimes of domestic violence, may not legally possess or handle firearms. While this is the case whether or not the disqualifying events are reported to background check databases, if they are not reported, the opportunities to actually prevent the illegal purchase of firearms disappear. In the case of background check systems, the net never completely closes if states and communities fail to report all qualifying domestic abuse convictions and protective orders as the system intended.
Closing this net is a complicated task, however. The federal government cannot require states to report records to NICS. As a result, many states maintain their own databases, and records are not sent to the federal databases.
Only four states (Illinois, Massachusetts, Minnesota, and New York) currently have laws requiring that convictions of misdemeanor crimes of domestic violence be reported to NICS.
Even in cases where states are compliant with NICS reporting requirements, records are frequently absent for a variety of reasons. For example, some states do not require fingerprinting for misdemeanors, so that the conviction is not transmitted to the Interstate Identification Index (III) (one of the three databases most frequently queried in a NICS check). Or it may be unclear whether a state conviction matches the federal definition of an MCDV, either because “domestic relationship” might be defined differently under that state’s law, or because it might be unclear whether or not the conviction was for an offense that includes “use of force,” because of a so-called “disjunctive” state statute. This means that the crime may be committed by use of force, or absent use of force, but without more information from the record it is unclear if it qualifies under federal law.
Domestic violence protective orders frequently necessitate confirmation through the National Crime Information Center (NCIC). NCIC’s protection order file is also queried in a NICS check). This frequently occurs when the protected person cannot produce a copy of the order for law enforcement to review. Participation in the NCIC has specific requirements which many jurisdictions cannot meet for lack of time and resources. For example, the record must be available for confirmation 24/7. If the records are maintained by the court, this is not practical in many jurisdictions. In addition, the record must be “packed,” meaning it contains all identifying information on the prohibited person, and the record must undergo a yearly review or update.
The net is working, but could be more effective. NICS has denied 2,039,507 transactions since starting in 1998 through 2021. Notably, over 180,000 of these were for domestic violence offenses.
A history of domestic violence has been identified as the single greatest predictor of future violence. Additionally, a history of domestic violence has been statistically linked to the perpetration of mass shootings in this country. Although mass shootings (defined as four or more people killed in a single incident), comprise only a fraction of gun murders, more than 60 percent of mass shooters have a history of perpetrating domestic violence. Notably, courts have consistently upheld these bans as reasonable steps toward ensuring public safety.
What is predictable is preventable. Every community benefits by identifying which members among them are most likely to cause harm with a gun. All of us benefit when we identify and report those individuals for whom we have both evidence-based and legal justifications for disarming. And it is for these reasons that it is imperative that communities diligently report convictions for domestic violence as well as domestic violence protective orders to the appropriate state and federal authorities for entry into background check databases.
For more information on the intersection of domestic violence and firearms, including more information on purchase prevention, please visit BWJP’s Safer Families, Safer Communities project website at www.preventdvgunviolence.org. And please contact BWJP’s National Center on Protection Orders and Full Faith and Credit (NCPOFFC) for additional information on reporting and enforcing civil protection orders at www.bwjp.org.
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