nics 24 hour reporting requirement and mental health records

The Department on July 6, 2001, published a notice of proposals for changes to the NICS which was eventually passed into law. The changes addressed the amount of time the NICS retains information about approved transfers, the manner in which that information may be used to audit the NICS, how the privacy interests of law-abiding firearm transferees were handled, and the Department's obligation to enforce the Brady Act in preventing prohibited persons from receiving firearms.


Thanks for reading Legal Updates! Subscribe for free to receive new posts and support my work.
The changes would require information relating to transfers (minus the NICS Transaction Number (NTN)) to be destroyed before the beginning of the next day of NICS operations (24 hrs).


The NICS regulations in the past before the change required destruction of this information within 90 days of the system allowing a transaction. 28 CFR § 25.9 (b)(1).


The President signed into law, the requirement that the NICS is required to destroy certain information in the records of approved transactions. Section 617 of Pub. L. No. 108–199, the Consolidated Appropriations Act, 2004 requires the NICS to destroy any identifying information of any person who has been determined not to be prohibited no more than 24 hours after the system advises a FFL that possession or receipt of a firearm would not violate 18 U.S.C § 922 (g) or (n).



When there are no missing records, NICS employees are able to make their determinations quickly within a matter of minutes. However there is concern over the “Charleston” loophole, which is when the NICS has cases in which it cannot make a determination within three business days as to whether a potential transferee is prohibited, and lawfully releases the firearm to the buyer (in many states but not all like CA). Because the NICS cannot reach a final determination within three business days because relevant information is missing, the final rule defines these cases as “open” responses and allows the NICS to retain information about them until a “proceed” determination is reached or for not more than 90 days.


Initially, the purpose of the proposal was to create a separate category of transactions called “unresolved”; cases where the FFL was unable to determine whether the prospective buyer was prohibited. In the final published rule, the name of the category was changed from “unresolved” to “open.” “Open” transactions are non-canceled transactions where the FFL has not yet been notified of the final determination. In these cases, additional information is needed before the NICS examiner can verify whether a “hit” in the database demonstrates that the prospective buyer is disqualified.


However, to be clear, the 24-hour record destruction requirement applies only to transactions in which the NICS has affirmatively determined that possession or receipt of a firearm by the purchaser would not violate 18 U.S.C. § 922(g) or (n) or any state law like Welf and Inst Code § 8103 et seq. The FFL must have received a “proceed” response for the above provisions to apply.


In the case of denied transactions, records are retained indefinitely. This is relevant as the NICS denial notification act which under the ____ requires that a denial be reported to local law enforcement agencies so in the case the prohibited person attempts to purchase a firearm at a different FFL or attempts to unlawfully obtain a firearm. Receiving information about POC states’ denials will enable the FBI to refer all denials, not just those made by the FBI NICS Operations Center, to ATF for investigation. [Citation] The reports indicate that if the referring agency deems that this is beyond a simple one time denial, they may send an investigator from the office of the DA to inquiry into the nature of the denial.


Some commenters suggested that reducing the retention period to less than 24 hours will hinder investigation into unlawful firearm transactions specifically straw purchases. A “straw purchase” occurs when the actual purchaser of a firearm compensates another person, the “straw purchaser,” to fill out the form 4473 so that their own prohibited status does not bar them from buying a firearm. Although this is illegal federally (affirmed by Abramski) and statewide, the way the law is written, the onus of catching a straw purchaser is on the FFL. They are trained it recognize the signs of a straw purchase, but with technology evolving this is proving to be harder and harder.


According to notice and comment, the authors note that the provision in the final rule stated that this shortened time frame would still allow the FBI and ATF to pursue cases of straw purchases that come to the FBI's attention. When a potential straw purchase comes to the attention of the FBI while processing a NICS check within 24 hours after a dealer is advised of a proceed determination, this provision in the regulation will authorize the FBI to provide records of the approved transfer to ATF before the identifying information in records in the NICS Audit Log must be destroyed as required.


[more]


Another concern raised was that the proposed change would prevent the NICS from referring a “proceed” transaction for a firearm retrieval when a disqualifying record is subsequently entered into the system after the approval. The concern indicated that this would allow a prohibited buyer to “beat the clock” and buy a firearm after they become disqualified but before his or her disqualifying record is entered into the system. For example if someone is released very soon after a certification hearing, they may try to buy a firearm. Now in CA because of our 10 day waiting period this risk is negated but a state like Maine would face possible issues with beating the clock. The NICS does not currently have a process for automatically comparing new history or other disqualifying information received by the FBI against proceed transactions.


Other concerns raised were that the Brady Act does not allow the FBI to retain information about the FFL identification number or to transfer any information on allowed transfers or open transactions to ATF. The comments asserted that the FBI can only keep the NTN and date of transfer and may only share said information with ATF when there is a bona fide criminal investigation. The ATF may not share that information publicly for researchers; only with law enforcement per the Tiahrt Riders Amendment. In relation to CA this could mean that the ATF trace data could not be used for researchers to determine whether a prohibitor under 922 (g)(4) was successful in driving down gun related deaths as mental health prohibitors may resort to relying on straw purchases, obtaining privately made unserialized lowers given their rise in popularity, and buying stolen firearms with obliterated serial numbers. It is true that the ATF's NICS 24 hour reporting and destruction of records would not largely cut down on this type of illegal procurement of firearms. However, with the NICS denial notification act would possibly alert law enforcement and other FFLs to keep an eye out for poorly conducted straw purchases. 




The final change was to require POC states like California to transmit state determinations (like cert hearings and writ of habeas corpus outcomes) to the NICS. California already submits its mental health records to the NICS per state law when the person is certified. The 5150 holds are not reported to the NICS because they do not federally qualify as a commitment per Mai but do trigger the five year state prohibition for a single 5150 and a lifetime state prohibition for 2 or more 5150s in a 365 period. Presumably, if the CA resident were to move before their prohibition were to expire, it is unlike that a FFL in North Dakota would inquire into CA records as the state disqualifiers are only reported to our DOJ and North Dakota is not a POC state. 

Final note: 
In relation to the NICS database data destruction, CA law mandates that the prohibiting category is recorded in the APPS database. According to publications by the CA attorney general, the 5150 record “self deletes“ after the five year expiry date.