Beyond Gridlock


How White House Action on Gun Violence Can Save Lives


October 5, 2015

This report answers President Obama’s call to action in the wake of the horrific shooting at Umpqua Community College in Roseburg, Oregon, and offers five life-saving measures that the Administration could advance to keep guns out of the hands of dangerous people.

Introduction

In the wake of the horrific shooting at Umpqua Community College in Roseburg, Oregon — the 18th mass shooting of 2015Mass shootings in which at least four people were shot to death in 2015 include shootings in San Francisco, CA on January 9; La Grange, GA on January 31; Douglasville, GA on February 7; Tyrone, MO on February 26; Indianapolis, IN on March 24; Phoenix, AZ on April 17; Tucson, AZ on May 13; Waco, TX on May 17; Missoula, MT on June 7; Columbus, OH on June 1; Charleston, SC on June 17; Holly Hill, SC on July 15; Chattanooga, TN on July 16; Houston, TX on August 8; Barre, VT on August 8; Greenwood, MN on September 10; Platte, SD on September 17; and Rosenberg, OR on October 1. — President Obama spoke to the nation, lamenting that gun violence has grown so routine in America and deploring Congressional inaction.Transcript: Read the Full Text of Obama’s Statement on the Shooting in Oregon, Time.com, Oct. 1, 2015, at http://time.com/4058961/oregon-shooting-president-obama-transcript-speech/. But the President also issued a powerful call to action, and recommitted his administration to exploring its authority to take executive action and enforce the laws already in place. He asked whether there were steps his administration could take to prevent these “tragic deaths from taking place.”The White House, Office of the Press Secretary, Remarks by the President in Press Conference, Oct. 2, 2015, at https://www.whitehouse.gov/the-press-office/2015/10/02/press-conference-president.

This report answers the President’s call, and offers five life-saving measures that the Administration could advance — today — to keep guns out of the hands of dangerous people.

These five critical — and simple — steps would: keep dangerous people with guns out of our schools; crack down on gun trafficking and curb the sale of guns without background checks; ensure that law enforcement identifies and prosecutes the most dangerous criminals who try to illegally obtain guns; help states to enforce their own background check laws; and ensure that all convicted domestic abusers are prohibited from possessing guns. A comprehensive list of these and other recommended executive actions is set forth in the appendix to this report.

This report recommends:

  1. Issue guidance to ensure that dangerous people are not permitted to carry guns within 1,000 feet of a school;
  2. Issue a regulation clarifying that high-volume gun sellers are “engaged in the business” of dealing firearms and must obtain dealer licenses and comply with applicable laws, including background checks on all gun sales;
  3. Instruct federal law enforcement to identify and arrest dangerous criminals who try to buy illegal guns, and to notify and work with state and local authorities when these illegal purchases are attempted;
  4. Assist states in enforcing their existing background check laws by publishing aggregate background check denial data for guns sold by unlicensed sellers; and
  5. Protect victims of domestic abuse by clarifying that convicted abusers are prohibited from having guns regardless of marital status.
Ensure that dangerous people are not permitted to carry guns in schools by clarifying which state permits qualify under the gun-free school zones act

The federal Gun-Free School Zones Act (“GFSZA”), signed into law by President George H. W. Bush in 1990, prohibits individuals from carrying loaded or unlocked guns within 1,000 feet of any private, public, or parochial K-12 school.18 USC 922(q). The law exempts individuals who hold “qualified” state permits that allow them to carry firearms in public, but only if the state authority that issues the permit can verify that the person is eligible under the law to receive the permit. But the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) has never offered guidance on which state permits qualify for this exemption. The Administration should direct ATF to clarify which state permits qualify for the GFSZA exemption so that dangerous people do not carry guns into our schools.

Under federal law, holders of state public-carry permits cannot carry loaded or unlocked firearms in or near K-12 schools unless “the law enforcement authorities of the state or political subdivision [that issued the permit first] verify that the individual is qualified under law to receive the [permit].”18 USC 922(q)(2)(B)(ii) Yet, while 49 states and the District of Columbia grant permits to carry concealed firearmsAll states other than Vermont issue concealed carry permits; in Vermont no permit is required to carry a concealed firearm. See Everytown for Gun Safety, Federally Mandated Concealed Carry Reciprocity, 2015, at http://every.tw/1JM0lta. — and more than a dozen states grant permits to carry firearms openlyStates that issue open-carry permits include Connecticut, Georgia, Hawaii, Indiana, Iowa, Maryland, Massachusetts, Minnesota, New Jersey, North Dakota, Oklahoma, Rhode Island, Tennessee, and Utah. — ATF has never identified which state permits qualify for the GFSZA exception.

State standards for issuing permits vary widely. Some states even issue concealed carry permits to applicants without conducting a background check to see whether the person is prohibited from having or carrying guns. In the absence of ATF guidance, permits holders are able to carry guns in school zones, when in fact their permit would not qualify for the federal exemption. Consequently, criminals in some states are able to slip through the cracks, get concealed carry permits without a background check, and carry guns in schools.

By contrast, ATF routinely publishes information on which state permits qualify for an exception in a related federal law. That law exempts purchasers from the requirement that they pass a point-of-sale background check when buying a gun from a federally licensed dealer if they hold a qualifying state firearm permit. State permits qualify for this exemption only if authorities have previously “verified” that the person is not prohibited from possessing a firearm before issuing the permit.18 USC 922(t)(3)(A). Permits must also have a duration of no more than 5 years in order to be qualifying. ATF refers to these qualified permits as “Brady alternative” permits because they exempt holders from Brady background checks; ATF regularly evaluates state firearm permits and publishes a list of which permits qualify as a “Brady alternative.”ATF, Permanent Brady Permit Chart, available at http://1.usa.gov/1FLA6Z6.

ATF should do the same for state permits that qualify for the GFSZA exception. By clarifying which permits qualify, ATF would ensure that dangerous people, who may hold state carry permits issued by lax or ineffective state systems, are not allowed to carry guns near our schools.

Recommendation

  • The Administration should direct ATF to catalogue which state permits qualify under the GFSZA to exempt permit holders from the prohibition against carrying in school zones, and to regularly publish their determinations.
Curb the Sale of Guns to Criminals by High-Volume Sellers by Defining "Engaged in the Business"

Under federal law, individuals engaged in the business of selling guns must obtain a federal firearms license,18 USC 922(a)(1)(a). and licensed sellers must conduct criminal background checks for all gun sales. By contrast, unlicensed, private sellers need not conduct background checks. But an alarming number of gun sellers flout the law by selling hundreds or even thousands of guns per year while refusing to obtain a federal license. For these high-volume sellers, there is no way to ensure that their buyers are not criminals or other dangerous people. The Administration should issue a regulation clarifying that high-volume gun sellers are “engaged in the business” of dealing firearms and must therefore obtain licenses and comply with applicable laws, including background checks on all sales.

It is illegal under federal law to “engage in the business” of selling guns
without a federal firearms license.18 USC 922(a)(1)(a). A person is “engaged in the business” if he or she “devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.”27 CFR 478.11. But, significantly, the law excludes from the definition “a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”Id.

Unfortunately, because ATF has not clearly defined “engaged in the business” or clarified how law enforcement agencies should interpret and apply the term, there is no uniform enforcement of the federal licensing requirement. Indeed, ATF has stated that this lack of uniform guidance “often frustrates the prosecution of people who supply guns to felons and other prohibited persons.”U.S. Departments of Justice and Treasury, “Gun Shows: Brady Checks and Crime Gun Traces,” January 1999, at 24.

This lack of precision has serious implications for public safety because unlicensed high-volume sellers transfer hundreds of thousands of guns each year. An investigation conducted by Mayors Against Illegal Guns in December 2013 estimated that nearly a quarter of a million guns are sold each year by unlicensed high-volume sellers on a single website alone: Armslist.com.See In the Business. The investigation revealed that nearly one-third of the tens of thousands of gun advertisements posted daily by unlicensed sellers on Armslist.com are posted by high-volume sellers likely “engaged in the business” of selling firearms without a license, in violation of federal law.1Id.

Because criminal background checks are not required on any of these sales, an unknown number of the purchasers — a number likely in the tens or hundreds of thousands — are prohibited, dangerous individuals. And because of the lack of clarity regarding which sellers are “engaged in the business” and must obtain licenses, law enforcement is hampered in prosecuting high-volume sellers — even where there is strong evidence that they make commercial gun sales in high volume and should be licensed. For example, a high volume seller in Florida who claimed to be a hobbyist was acquitted on charges of dealing without a license despite the fact that he had sold over 400 guns, made $30-50K per year from gun show sales, and was warned twice by ATF that he needed to get a license.U.S. v. Fries, No. 11-cr-00022 (N.D. Fla. 2011).

Recommendation

The Administration should promulgate a regulation providing guidance on the meaning and enforcement of the “engaged in the business” standard. Such a regulation should:

  • Provide a test for assessing whether high-volume sellers are engaging in the business of dealing firearms and must therefore obtain a license. Such a test should assess whether: gun sellers buy and resell guns in a short period of time; sell guns new or in their original packaging; sell multiple firearms of the same make or model; and/or rely on commercial means — such as advertising — to sell inventory
  • Create a rebuttable presumption that a seller is engaged in the business if he or she offers more than a specified number of guns for sale in one year, and one or more of the factors listed above are present.
  • Clarify that the term “personal collection” means the same thing it does in the context of licensed gun dealers, i.e., that a firearm is only a part of a seller’s “personal collection” if it has been in the seller’s possession for at least one year.See 18 U.S.C. § 923(c).
  • Clarify that a person can be engaged in the business, and can be required to have a license, even if he or she engages in other business activities in addition to gun sales — and even if selling guns is not his or her exclusive or primary business or means of livelihood.
Identify and Prosecute Prohibited Persons Who Attempt to Buy Guns

Every month, the National Instant Criminal Background Check System (“NICS”) system runs checks on hundreds of thousands of potential gun purchasers, and over time, millions of prohibited people have been stopped from buying guns. It is illegal for prohibited individuals to attempt these gun purchases by falsely indicating that they are not prohibited on the background check form they fill out at the gun store. But it is rare that criminals are arrested and prosecuted for these so-called “lie-and-try” crimes — even though evidence shows they are at elevated risk of committing subsequent violent crime. The federal government should (1) identify which categories of prohibited people are the most likely to commit crimes after failing a background check; (2) arrest and investigate these dangerous individuals when they make the illegal attempt to buy guns; and (3) enter into partnerships with state and local law enforcement so that each time any prohibited person fails a background check, the failed check is reported to local authorities for follow-up.

Prohibited people who attempt to buy firearms are extremely dangerous. In 2008, the U.S. Department of Justice found that prohibited people who fail background checks were at a 28% higher risk of arrest in the five years after denial than in the five years preceding it.James Tien et al., Structured Decisions Corporation, Recidivism of Denied Prospective Firearm Purchasers, May 2008, at http://1.usa.gov/1Dm1lSG. The most frequent reasons for failed background checks are that the would-be gun buyer is a felon or domestic abuser,See FBI, Federal Denials: Reasons Why the NICS Section Denies, Nov. 30, 1998 – Sept. 30, 2015, at https://www.fbi.gov/about-us/cjis/nics/reports/federal_denials.pdf. and because in most states someone who fails a background check at a licensed dealer can buy a gun with no check from an unlicensed seller, it is crucial that law enforcement know when criminals or domestic abusers are attempting to obtain a gun. Identifying and intercepting dangerous people before they buy a gun can make the difference between preventing tragedy or dealing with the aftermath of a murder.

State efforts to investigate failed background checks demonstrate how such arrests can save lives. In so-called “point of contact” states like Pennsylvania and Virginia, state law enforcement agencies conduct background checks in conjunction with FBI. Because these state agencies are involved in the background check system, they know each time a would-be gun buyer fails a check, and can follow up. And in these two states, the results have been impressive:

  • In Virginia, follow-up investigations after failed background checks have resulted in more than 14,000 arrests since the state began tracking attempted gun purchases and investigating those who fail background checks. In 2014 alone, Virginia arrested more than 500 criminals, fugitives, and others who tried to buy guns despite being legally barred from doing so.
  • In Pennsylvania, where a similar policy of investigating failed background checks is in force, the results have been similarly impressive. In 2013, failed background checks in Pennsylvania gave rise to 620 investigations. These, in turn, resulted in 346 arrests and more than 200 convictions.

Recommendation

The Administration should implement three readily achievable measures to stop prohibited people who break the law by attempting to buy guns:

  • Identify which categories of prohibited people are the most likely to engage in criminal activity following a background check denial.
  • Instruct ATF to investigate and arrest people in these most dangerous categories when they illegally attempt to buy a gun.
  • Notify state and local authorities each and every time a prohibited person fails a background check, so authorities can interdict these people before they commit any new crimes.
Help Implement and Enforce State Background Check Laws

Eighteen states and Washington, D.C. have closed the loophole in federal law that lets unlicensed sellers transfer guns without background checks—requiring background checks on all handgun sales.The states that require background checks on all handgun sales are California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland, Massachusetts, Michigan, Nebraska, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, and Washington State. In the remaining states, unlicensed firearm sellers may voluntarily choose to ask licensed dealers to conduct background checks before they sell guns, but they have no obligation to do so and may legally sell guns with no questions asked. While the FBI keeps records of the aggregate numbers of background checks conducted in each state — including the number of denials and reasons for those denials — FBI data does not differentiate between background checks conducted for private sales and those conducted for dealer sales. The Administration should direct FBI to track and publish this aggregate data to help states with comprehensive background check laws enforce their laws and tailor their law enforcement strategies to prevent criminals from illegally obtaining guns.

Across the country, in states that do not require background checks on gun sales by unlicensed sellers, millions of guns are transferred each year with no background check and no questions asked. To address
the obvious risks that arise when criminals can buy guns with no background checks, 18 states and Washington, D.C. go beyond federal law and require checks for all handgun sales — including sales by unlicensed sellers. The FBI could assist these states in enforcement of their background check laws by tracking and providing them with aggregate data on how many background checks are conducted for private gun sales; how many result in denials; and why those denials are issued.

Some states require that private sellers and buyers must meet at a licensed gun dealer, where a background check is performed, before a gun sale may be consummated. There, the buyer fills out simple paperwork called the Form 4473, and the dealer contacts the FBI to run a background check on the buyer. The dealer indicates on the Form 4473 that the sale is a private party transfer and keeps the form in its dealer records as it does for sales from its own inventory.See ATF Proc. 2013-1, Recordkeeping and Background Check Procedures for Facilitation of Private Party Firearm Transfers, March 15, 2013, available at https://www.atf.gov/file/4961/download (outlining procedure by which licensed dealers conduct background checks for unlicensed sellers and record transfers in dealer records). But the dealer is not required to inform the FBI whether the check is being run for a sale by the dealer itself or by an unlicensed, private seller. Thus, the FBI cannot provide data on how many private sale background checks are conducted — or how many are denied.

If the FBI simply asked licensed dealers doing background checks whether they were being conducted for the dealer itself or on behalf of an unlicensed seller, the FBI could collect and publish this data. Already, the FBI reports on a monthly basis the number of gun background checks conducted per state.See FBI, NICS Firearm Background Checks, at https://www.fbi.gov/about-us/cjis/nics/reports/nics_firearm_checks_-_month_year_by_state_type.pdf. It also tracks how many of these checks result in denials, as well as the reasons for these denials, by state.This latter data is available to researchers or the public upon request through the Freedom of Information Act. The FBI recently reformatted its monthly background check reports to include a column for “Private Sales,” demonstrating that it is ready to begin recording this data. But the FBI has not yet asked dealers to report this information, so the space for private sales on its monthly report remains largely unpopulated. With this simple change the FBI could compile data that would be highly valuable for law enforcement, researchers, and policymakers.

By publishing this aggregate data, FBI would allow researchers to better understand the patterns of prohibited persons seeking guns from unlicensed sellers, as well as whether compliance with background check laws is keeping guns out of dangerous hands. It would also enable states to better understand how different implementation and enforcement strategies affect compliance. Deepening this understanding will allow policymakers in other states to craft effective laws and better keep guns from criminals and other prohibited people.

Recommendation

  • The Administration should mandate the FBI to ask and record whether each background check it conducts is for a private sale or a dealer sale. Tracking the aggregate number of background checks and denials for sales by unlicensed sellers will provide invaluable information about how many private sale checks are being conducted, how many are being denied, and why they are being denied. This information will help states determine the effectiveness of varying implementation and enforcement strategies, and help policy makers better understand how state background check procedures deter and detect dangerous people who would otherwise be able to circumvent background check requirements.
Protect Victims of Dating Violence by Clarifying that Unmarried Domestic Abusers Convicted of Domestic Violence are Prohibited from Having Guns

Federal law prohibits people convicted of misdemeanor crimes of domestic violence, or “MCDVs,” from possessing guns. But for a conviction to qualify as an MCDV, the offender must be a current or former spouse of his victim, share a child with his victim, cohabit or have cohabited with his victim, or be “similarly situated to a spouse” of the victim.18 U.S.C. § 921(33)(A)(ii) The term “similarly situated to a spouse” is not defined,An interim rule was written by ATF in 1998, but never finalized. 63 Fed Reg. 35520. however, leading to uncertainty about how to apply the law and an overly narrow interpretation in some instances by excluding crimes where the abuser and victim are not married.See, e.g., United States v. Costigan, 2000 WL 898455 (D. Me. 2000) (“I suspect that there are many people previously convicted of assault who are unable to tell from reading the statute whether their assault was ‘domestic violence’ such that they can no longer possess firearms.”). While some courts have looked to the statute’s legislative history and determined that Congress intended the term to be interpreted broadly,The Eighth Circuit has found that the statute covered an offender who abused a woman with whom he had an extramarital affair, while the Tenth Circuit has affirmed a ruling that the statute covers “the myriad close personal relationships that could result in recurring conflicts.” United States v. Cuervo, 354 F.3d 969 (8th Cir. 2004); United States v. Heckenliable, 2005 WL 856389 (D. Utah 2005), affirmed by United States v Heckenliable, 2006 U.S. App. LEXIS 10475 (10th Cir. 2006) (interpreting the term “similarly situated to a spouse” to “cover, without specifically enumerating, the myriad close personal relationships that could result in recurring conflicts — conflicts that could escalate to deadly violence if a previously convicted misdemeanant had access to a firearm.”) the lack of a clear regulatory definition has left prosecutors and background check operators with no clear definition to use in assessing whether an unmarried person convicted of domestic violence is prohibited. The Administration should promulgate a regulation to address this uncertainty and ensure that convicted abusers cannot evade the federal firearm prohibition just because they did not marry their victims.

As Americans get married later and less frequently, more and more women are in unmarried intimate relationships. The median age at which Americans first get married is now six years older than the median age in 1960.Change from 1960 (when the median age for men was 22.8 and for women was 20.3) to 2010 (when the median age for men was 28.7 and for women was 26.5). D’Vera Cohn and Jeffrey Passel, “Barely Half of US Adults Are Married — A Record Low,” Pew Research Center, Social and Demographic Trends, last modified December 14, 2011, last accessed October 22, 2014, available at http://pewrsr.ch/1mGhz5a. And the share of people aged 25 and over who are unmarried has more than doubled over that time period — to an historic high of 20%.Change from 1960, (when 9% of adults in that age range were unmarried) to 2012, (when 20% of adults in that age range were unmarried). Wendy Wang and Kim Parker, “Record Share of Americans Have Never Married: Values, Economics and Gender Patterns Change,” Pew Research Center, Social and Demographic Trends, last modified September 24, 2014, last accessed October 22, 2014, available at http://pewrsr.ch/1DAJDwJ.

Unmarried women in romantic relationships are just as vulnerable, if not more vulnerable, to domestic abuse — including being killed with a gun — as married women. Indeed, younger women — who are less likely to be married — are actually at a higher risk of intimate partner violence.Alfred DeMaris et al., “Distal and Proximal Factors in Domestic Violence: A Test of an Integrated Model,” Journal of Marriage and Family 65, no. 3 (August 2003). More women are now killed by boyfriends than by husbands.Everytown for Gun Safety analysis of FBI Supplementary Homicide Reports, 2008-2012.

Beyond Gridlock

There is broad agreement that married and unmarried abusers should be treated similarly. The laws of most states reach abusive dating partners in addition to abusive spouses: Forty-two states and the District of Columbia will issue restraining orders against abusive dating partners, and 23 states and DC require or explicitly allow gun prohibition for dating partners subject to these restraining orders.See Everytown for Gun Safety, Guns and Violence Against Women: America’s Uniquely Lethal Domestic Violence Problem, 2014. And in July 2014, at a Senate Judiciary Committee hearing on guns and violence against women, all five witnesses who testified — including those called by Republican and Democratic members agreed that unmarried abusers should be prohibited in the same fashion as abusers who are married to their victims.July 30, 2014, “VAWA Next Steps: Violence Against Women Act Next Steps: Protecting Women from Gun Violence,” video available at http://1.usa.gov/1tXvyUW. But the lack of clarity in the definition of “similarly situated to a spouse” prevents this consensus view from being implemented to protect victims of abuse from gun violence.

Recommendation

  • The Department of Justice should promulgate a regulation ensuring that domestic abusers convicted of MCDVs are prohibited, whether or not they are
    married to their victims. It can do so easily, simply by clarifying that “similarly situated to a spouse” in the federal MCDV law has the same meaning as the term “intimate partner” in the Violence Against Women Act (“VAWA”).VAWA imposes various consequences for abuse of an intimate partner, including prohibiting gun possession by abusers subject to qualifying restraining orders taken out against them by intimate partners. VAWA defines an intimate partner as “a person who is or has been in a social relationship of a romantic or intimate nature with the abuser, as determined by the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.” 18 U.S.C. § 2266.