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publication of the Justice Center |
Alaska Justice Statistical Analysis Center |
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Cassie Atwell
Gun
control—especially keeping handguns out of the wrong hands—has
been a reoccurring theme across America in the last three decades.
In the wake of school shootings in places like Alaska, Kentucky,
Arkansas, and most recently Colorado and Georgia, the public
has expressed outrage over the perceived inability of law enforcement
to keep guns out of the hands of potential killers. Polls and
surveys all show that growing numbers of the public feel that
tougher gun laws are the most effective way to curb the violence,
not just in schools but in general.
Will tougher laws solve the problem?
In order to ascertain the extent to which gun laws need to be
strengthened, it is necessary to look at how the current laws
are administered. The Brady Handgun Violence Protection Act (18
U.S.C. 922) was enacted after the assassination attempt on President
Reagan, in which his press secretary, James Brady, was shot and
paralyzed. The assassination attempt riveted public attention
in 1981, but it had been preceded by years of growing public
perception of the dangers associated with handguns. Finally enacted
in 1994, as an addition to the Gun Control Act of 1964, the Brady
Act expressly prohibits the sale of handguns to individuals who
fall under certain classifications.
By keeping guns out of the hands
of criminals and others deemed to be potentially dangerous, the
Brady Act was to have been a major step toward reducing gun violence
in America. The act set out specific conditions under which an
individual could purchase a handgun. The individual must be a
resident of the state in which the handgun is being purchased
and must be at least eighteen years of age. The individual cannot
fall under any of nine prohibited categories:
• those who are under indictment
for or have been convicted of a felony
• fugitives from justice
• unlawful users of or those
addicted to a controlled substance
• those adjudicated as mental
defectives or committed to a mental institution
• illegal aliens
• those who have dishonorable
discharges from the military
• those who have renounced
their United States citizenship
• those who are subject to
a restraining order
• those who have been convicted
of a misdemeanor crime of domestic violence.
Under the act, law enforcement
has five days to complete a background check after an individual
makes formal application to purchase a handgun.
But how well does the act really
work? Administration of an act such as this is depends on the
data available and the methods of enforcement. To assess whether
the Brady Act is working in Alaska it is necessary to look at
two areas—training of the individuals responsible for compiling
background checks on applicants and the results of applicant
denials.
In August 1998, the Justice Center
began a project to determine the effectiveness of the provisions
of the Brady Act in Alaska. To accomplish this, we divided the
project into two parts. The first was to determine if the procedures
and definitions used by each Chief Law Enforcement Officer (CLEO)
in the state were uniform when determining the eligibility of
each applicant for handgun purchase and if the procedures met
the demands of the Brady Act. The second part looked at denied
applicants from the Anchorage Police Department to determine
the reasons for denial and the effectiveness of the background
check in keeping handguns out of the hands of prohibited persons.
(Anchorage was the only city that had an adequate number of denied
applications available for analysis). Given the low population
numbers of both CLEOs and denied applications, we are unable
to do any statistical comparisons. However, a description of
what we found shows areas that may require further study.
To determine the effectiveness
of training and the overall knowledge of the Brady Act, we designed
and conducted a telephone survey with all 38 Chief Law Enforcement
Officers (CLEO) across the state. Chief Law Enforcement Officers
are the authorities responsible for making the decision to approve
or deny an application—in Alaska, usually the police chief
in the nearest local hub community or the Alaska State Trooper
in a given region. Each officer was asked to have all training
materials handy during the interview. The telephone survey was
divided into three sections: training, knowledge of Brady requirements,
and opinions. Information was also collected on each interviewee:
age, race, rank, certifications (if any), type of department,
number of years in law enforcement, number of years processing
background checks, average number of applications processed per
month and length of time in the community.
Training
In looking at training we were
chiefly concerned with how much guidance was received prior to
and after the commencement of Brady; how adequate the training
was for each officer; and what training materials were provided
to guide the process.
Uniformity of procedures and definitions
is essential in guaranteeing that all persons prohibited from
purchasing firearms are recognized during background checks.
On a national scale this requires that extensive amounts of information
be generated and distributed to all those responsible for accomplishing
this mandate. Definitions need to be spelled out so that those
conducting background checks can insure all prohibited persons
are identified, and procedures need to be standardized to assure
that all aspects of the act are covered.
In spite of the fact that procedures
had not been developed at the national level (the act itself
states that the CLEOs only make a reasonable effort to determine
eligibility), the application process was the same for most areas
in Alaska. Once the dealer had submitted a copy of the application
form (this was usually done by fax, although some agencies required
they be mailed), a background check was processed that usually
included accessing both the APSIN (Alaska Public Safety Information
Network) and the NCIC (National Crime Information Center) criminal
history files. The CLEO was given five days in which to make
a decision on approval.
Information dissemination was another
matter. Although the federal government, through the Alaska Department
of Public Safety, tried to make sure that information was distributed
to those responsible for background checks, some CLEOs were left
out. For example, in November 1993, the Bureau of Alcohol, Tobacco
and Firearms and the Federal Bureau of Investigation held a one-day
regional training conference for all registered Federal Firearms
Licensed dealers (gun dealers) in Alaska to go over the requirements
of the Brady Act. This training conference was open to all, but
besides representatives from the Alaska Department of Public
Safety and the Anchorage and Seward Police Departments, no law
enforcement agency we contacted stated that they had attended.
A few did not attend because their locations in remote areas
of the state made travel too expensive, but the majority of people
we talked to had never heard about the conference until we mentioned
it during the survey. Most stated that if they had been told
about it, they would have attended.
To insure CLEOs were informed of
the requirements of Brady, the state was to send copies of the
act and memoranda from the Bureau of Alcohol, Tobacco and Firearms
to each designated CLEO, but only fifty percent stated that they
had received any training materials at all. At no time was any
information distributed that gave detailed definitions for each
category. For example, the category “persons who are users
of or addicted to a controlled substance” was never defined.
Some law enforcement agencies did not know whether this meant
a person with one or more DWIs should be included in this category.
(Receiving three DWIs in a five-year period was considered a
felony and hence denied under the first classification.) Yet,
when asked, most CLEOs who had received materials felt that the
information they received was adequate for the job they were
required to do. Their one complaint was that materials were rarely
or never updated. It was up to each department to stay on top
of any changes in the law that occurred.
Because of the numerous questions
received from the field over the first year, the Bureau of Alcohol,
Tobacco and Firearms (ATF) published definitions for each category
in June 1996 in the Federal Register, but agencies were not told
that they had been published and a full sixty-eight percent of
CLEOs in Alaska had not seen or read these revisions.
Knowledge of Brady
With the exception of those who attended the training conference, learning what was required in Brady was left up to each individual CLEO. Most respondents (71%) said that they felt they had adequate training and understood the requirements of Brady, but when asked during the interview to give the nine categories for denial, most could only name four (mean 3.89) even with training materials in front of them. These are the categories most frequently missed with the corresponding percentages: valid restraining order (90%); dishonorably discharged from the military (79%); renounced citizenship (79%); fugitive from justice (76%); addicted to controlled substances (66%); illegal aliens (58%).
We also asked questions about
specific categories. For example, interviewees were asked to
think about the category “adjudicated as a mental defective
or has been committed to a mental institution.” They were
then asked whether a voluntary commitment would be considered
grounds for denial. The revised definitions established by the
ATF in 1996 specifically state that voluntary commitments are
not grounds for denial, yet almost half (47%) felt that it would
be, or sometimes would be, grounds for denial.
We then asked whether they had
ever called the ATF or the FBI for help. Most (60%) had tried
contacting the ATF or the FBI when questions arose, but only
31 per cent found them to be any help. Most interviewees felt
that even though the ATF or the FBI were “sympathetic”
or “friendly,” they provided little or no help. One
CLEO responded, “There was no true guidance. Local police
departments were placed in a position of decision with no answers
or clear guidance.” Another stated that he had contacted
the ATF for help but never heard anything back. “I thought,
well if I’m doing something wrong I’ll hear about it.”
He’s never received any response.
Opinions on Brady
The last section of the survey
asked the opinions of each CLEO on the effectiveness of the Brady
Act in restricting access to handguns by prohibited persons;
on what information should be required on the application; and
on whether local law enforcement should be responsible for performing
background checks. We were especially interested in the last
question because a recent change in the law requires gun dealers
to contact the new FBI crime information center for approval
of any gun purchase (handguns and long guns); state and local
law enforcement will no longer be involved.
The first question dealt with the effectiveness of Brady. A majority
of those we talked to (71%) felt the act was not effective in
preventing people from obtaining guns. Most cited the availability
of guns from other arenas such as private sales and the “black
market” and the lack of available information for some categories.
It should be noted that Brady does
not apply to gun sales from unlicenced persons. Private sales
between friends or sales from private collections are not covered
in the act as it now stands. Someone who wishes to sell a gun
that is privately owned has only to place an advertisement in
the newspaper. No paperwork needs to be filled out by the buyer
and no background check needs to be performed.
Additionally, the lack of data
available for some categories makes determining eligibility for
a handgun purchase difficult. For instance, even though the number
of hospitals that accept involuntary mental commitments in Alaska
is finite, the list changes constantly depending on which hospitals
hold the state contracts within any given year. This makes obtaining
the data problematic at best. Also, the medical information on
these commitments is protected by law and is not available to
law enforcement. Even the court system that commits individuals
has no way of distributing this information, not only because
of the right to privacy for medical information, but also because
of the inability of its computer system to interface with others
and the lack of personnel to obtain the information manually.
Another question asked was what
kind of information should be required on an application to purchase
a gun. Currently, the application only requires name, address
and date of birth. Other information requested, but not required,
includes social security number, place of birth and alien registration
number (if applicable). Most (82%) felt that this information
should be required on the application. They felt it would insure
that the information they received on the background check belonged
to the applicant. It also would be helpful in determining what
areas of the country to contact for further background information.
The final question dealt with whether
the CLEO thought that Brady background checks should be done
by local law enforcement rather than federal. More than half
(52%) felt checks should be done locally. The reasons given by
the respondents were clear. Local law enforcement knows the community.
They know who the troublemakers are and can better protect the
community by using this knowledge. It was felt that local law
enforcement loses this ability when the background check is done
at a national level given that the FBI does not, in most cases,
have access to local records.
Application Denials
To further determine whether
Brady is working in Alaska, the Justice Center looked at two
factors: the original reasons for denials of handgun purchases
in Anchorage and reasons for any subsequent arrests of denied
applicants. With the cooperation of the Anchorage Police Department
(APD), we were given access to all applications that had been
denied by APD between the enactment of Brady in February 1994
and November 1998—a total of 581. (According to figures
compiled by DPS, APD handled 25,375 applications over this period.
It should be noted that DPS figures and those of APD differ,
but this total gives at least a notion of the overall level of
applications.). The reasons for the original denials varied,
but the majority of denials (82%) fell into four categories:
indictment or conviction for a felony, 49.1 per cent (286 of
581); subject to a current restraining order or violation of
a restraining order, 7.7 per cent (45 of 581); domestic violence
assaults, 14.3 per cent (83 of 581); and outstanding warrants,
10.8 per cent (63 of 581). The warrants included both felony
and misdemeanor charges.
In looking at these denials, we
wanted to find out if, after the application was denied, the
applicants had been arrested for any offenses involving handguns.
With the cooperation of the Alaska Department of Public Safety,
new APSIN criminal history records starting from the date of
denial were obtained for each applicant denied by APD. It should
be noted that we were only able to access criminal histories
compiled within the state. We were not able to gain access to
any national criminal history database.
Of the 576 names sent to DPS (some
individuals applied more than once), 193 (34%) came back with
a new criminal history record. The Anchorage Police Department
handled 118 of these incidents. The charges ranged from “driving
without a license” to “manslaughter.” We selected
from the data only those offenses that might have involved the
use of weapons. APD allowed access to the police reports for
each of these incidents so that we could determine if handguns
were used.
A total of 19 incidents involved
handguns. The crimes associated with this handgun use were 2
robberies, 8 weapons offenses and 9 assaults (including domestic
violence, stalking and road rage). The actual percentage of new
incidents was small (3 to 4%) but does indicate that handgun
offenses can occur despite the Brady Act. Further study would
be necessary to determine when the weapons were obtained and
whether the source of these weapons was legal or illegal (i.e.
prior ownership, purchased from a gun show, or theft, etc.).
It is not possible to tell whether
the Brady Act has reduced handgun crime. We do know that very
few persons denied handguns were subsequently charged with a
handgun offense.
We also know that CLEOs were not
adequately prepared to conduct background checks, because steps
were not taken at the national or state level to insure that
procedures were uniform, that definitions were clearly spelled
out and that information was readily available. Brady’s
enforcement has now been switched from the local to national
levels, so the problems with its administration will change;
however, the history of the act and its enforcement do contain
some lessons on how to administer national policy at the state
and local levels.
Cassie Atwell is a researcher with the Justice Center.