Last week, a bipartisan deal to reauthorize the Violence Against Women Act drew attention for dropping a measure that would have closed the so-called boyfriend loophole, which allows people convicted of misdemeanor domestic abuse to pass background checks and retain their firearms if their victim is not a current or former spouse, child, co-parent, or cohabiting partner. What got less notice is a provision that aims to strengthen the federal background check system by alerting state and local police when someone fails a background check while attempting to buy a gun. It survived negotiations, and as of February 16, will be part of the bill that Congress will vote on.
Dubbed the NICS Denial Notification Act (in reference to the National Instant Criminal Background Check System), the provision would require the FBI to notify state, local, and tribal law enforcement agencies within 24 hours of a failed check for a potential gun buyer. Proponents say such notifications could help prevent violence by giving law enforcement agencies time to intervene before someone tries to harm themselves or others.
It’s also likely to be the only gun reform measure that makes it to President Joe Biden’s desk before the midterm elections. With its 11 Republican co-sponsors, the VAWA reauthorization deal likely has enough bipartisan support to overcome the 60-vote filibuster.
Under current federal law, people subject to domestic violence restraining orders and those convicted of any crime punishable by more than a year in prison, among other prohibitive factors, are barred from buying or possessing guns. It’s not a crime to fail a background check. But it is illegal for someone who knows they’re not allowed to buy guns to knowingly lie on the federal background check form — something people often do, particularly when buying from less-scrupulous sellers. It’s a practice known as “lie and try,” and it’s rarely prosecuted because of limited resources and the difficulty of securing a conviction.
At the same time, the FBI isn’t obligated to notify state or local law enforcement when someone in their jurisdiction fails a background check while trying to buy a gun. That means that in the majority of states, local police typically only get information on who is trying to skirt the law if they ask.
Under the new proposal, state and local law enforcement would get these notifications automatically, allowing them to look into the case regardless of a federal investigation. And even if there aren’t grounds for an arrest or prosecution — which some proponents say shouldn’t be the goal — it could give officials time to stop that person from getting a gun another way.
“It may be crucial for law enforcement to have that information, because they can very quickly go out to the community, possibly warn a (domestic violence) victim, possibly restrain or arrest the individual, or at least talk to the individual, and let them know that they’re not eligible,” said Lindsay Nichols, the federal policy director at Giffords, a gun reform advocacy group.
There is some evidence that prohibited persons who try to buy a gun but fail a background check may harm others. The perpetrator of the 2019 Midland-Odessa, Texas, shooting, who killed eight and injured 25, failed a background check in 2014. He went on to buy a gun through a private sale, which didn’t require a background check. An internal review of data complied by the Bureau of Alcohol, Tobacco Firearms and Explosives from 1998 to 2006 found that between 10 to 21 percent of people investigated after a denied background check went on to be arrested for another crime involving guns.
Senators who support the provision say that something needs to change because law enforcement agencies aren’t fully enforcing current background check laws. Senator Chris Coons, a Democrat from Delaware, called the measure “a significant bipartisan step toward preventing guns from getting in the hands of those prohibited from owning them, keeping more women safe and reducing gun violence.”
Republicans have long said that current laws should be enforced before legislators consider new gun control laws, so supporting the Notification Act isn’t necessarily inconsistent. Senators Lisa Murkowski of Alaska and Joni Ernst of Iowa led negotiations for Republicans, and pro-gun senators like John Cornyn of Texas and Thom Tillis of North Carolina are listed as co-sponsors. And past iterations have garnered the support of Republican Senators Chuck Grassley of Iowa and Marco Rubio of Florida.
“It’s valuable to have bills, even small bills, that you can get some degree of bipartisanship around simply because it’s an instance where people on opposing sides find a way to work together,” said Robert Spitzer, a professor emeritus at the State University of New York, Cortland, who studies gun laws.
Thirty-seven states rely on the FBI to perform all or some background checks. In the other 13, state law enforcement agencies perform the checks themselves. In 2020, the most recent year for which data is available, NICS blocked more than 300,000 firearms transactions, a denial rate of less than 1 percent. Of those denials, 42 percent were rejected because the applicant had a felony record. Others were declined because the applicants were under indictment, subject to a restraining order, or were fugitives from justice, among other factors.
But beyond providing a determination and handling appeals, federal law enforcement investigates relatively few denials. A 2018 Government Accountability Office report found that just 11 percent of 112,000 federal denials in fiscal year 2017 — a number that doesn’t include denials in states that conduct their own checks — had been referred for investigation, and U.S. attorneys offices prosecuted just 12. Under federal law, a prohibited person who lies on a background check could face up to 10 years in prison, though sentences rarely reach the maximum.
Police chiefs from major cities have said they would be willing to step in and investigate these cases if the FBI is able to share the data. “The federal government does not have the resources or bandwidth to prosecute every prohibited person who attempts to acquire a firearm,” Art Acevedo, the president of the Major Cities Chiefs Association, told the Senate Judiciary Committee last year. “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.”
A separate provision from the VAWA bill text would give the U.S. attorney general the authority to deputize local and state law enforcement as federal agents, and appoint state prosecutors as special federal prosecutors to investigate and prosecute people who illegally possess firearms under federal law.
It’s not certain that giving state law enforcement notice will result in more investigations. Of the 13 states that process background checks at the state level, 10 told the GAO that they didn’t investigate or prosecute NICS denials either, according to the 2018 report. But the same report also found that the other three states — Pennsylvania, Oregon, and Virginia — investigated and prosecuted several thousand denials, significantly higher than the number investigated at the federal level.
Despite support from law enforcement and several Republican senators, gun rights groups oppose the changes. “People who willingly submit to background checks are not dangerous individuals,” the Gun Owners of America, a pro-gun group, wrote in an “urgent” blog post asking supporters to ask Republican senators to oppose the bill.
And of course, the provision doesn’t close other gaps in the background check system that allow people to acquire weapons they arguably should not have access to under the law.
The boyfriend loophole remains in place in the current bill text, and a prohibited buyer could still buy a gun at a gun show, online, or through a private sale, because sellers in those situations aren’t required to request a federal background check before they complete the sale.
“It’s strikingly inconsistent,” Nichols said. “If it makes sense for law enforcement to investigate these cases, where a person who is ineligible to possess a gun is trying to obtain one, then it makes sense to always require a background check for a person to buy a gun.”