Bipartisan NICS Denial Notification Act Signed into Law
When President Biden signed the $1.5 trillion omnibus to fund the government for the rest of the fiscal year, he also signed the National Instant Criminal Background Check System (NICS) Denial Notification Act (H.R.1769) as part of the lapsed Violence Against Women Act (H.R.1620).
Reauthorizing NICS stipulates that the Federal Bureau of Investigation (FBI) notify state and local law enforcement within 24 hours when an ineligible individual falsifies information during a background check to purchase a firearm.
Rep. Mike Quigley (D-IL) introduced the bill last year with Reps. Brian Fitzpatrick (R-PA), Eric Swalwell (D-CA), and Mario Diaz-Balart (R-FL) in the House. Senators Chris Coons (D-DE) and John Cornyn (R-TX) introduced it in the Senate. As proponents of the legislation, the Congressmen report these notifications could help prevent violence by giving law enforcement agencies time to intervene before someone tries to harm themselves or others.
“The NICS system has many flaws, one being the lack of notification to local law enforcement when a denial occurs. In many cases, local law enforcement would benefit from knowing the individual is attempting to purchase a firearm,” stated Larry Cosme, National President of the Federal Law Enforcement Officers Association (FLEOA). “This bill would ensure that gap is closed, and law enforcement can coordinate to stop prohibited persons from accessing weapons.”
For the 13 states that run their own background checks, local law enforcement can investigate prohibited persons when a background check fails. In the 37 states and the District of Columbia, where the FBI performs some or all background checks, local authorities are generally unaware when a background check is failed.
In Senator Coons' view, the latter lack valuable law enforcement intelligence that can be used to keep their communities safe, noting individuals who are willing to "lie and try" to buy a gun may be dangerous and more likely to acquire guns through other avenues. An internal review of Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) data from 1998 to 2006 found between 10 and 21 percent of people with denied background checks were arrested for another crime involving guns. In 2020, NICS rejected over 300,000 firearms transactions—a denial rate of less than 1 percent. The denials included 42 percent who had a criminal record, while others did not qualify because they were fugitives from justice, under indictment, or had restraining orders against them.
The legislation also requires the Justice Department publish an annual report on the prosecutions of background check denials. The Government Accountability Office (GAO) reported that only 11 percent of 112,000 federal denials that occurred in fiscal year 2017 were referred for investigation, and only 12 of these cases were prosecuted by U.S. Attorneys.
“The federal government does not have the resources or bandwidth to prosecute every prohibited person who attempts to acquire a firearm. If state and local authorities are aware of the denial, they can take appropriate action, which may include charging the prohibited person under the appropriate state laws,” stated Art Acevedo, President of the Major Cities Chiefs Association, before the Senate Judiciary Committee last year.
Nonetheless, it is not certain that notifying state law enforcement will lead to more investigations. The GAO found that 10 out of the 13 states that conduct background checks at the state level did not investigate or prosecute NICS denials either, as reported in the 2018 report. Even so, the report also found that the remaining three states investigated and prosecuted a significantly higher number of denials than the number investigated at the federal level.