HD16 - Increasing the Effectiveness of the Firearms Background Check

  • Published: 1994
  • Author: Department of State Police and Supreme Court of Virginia and Department of Criminal Justice Services
  • Enabling Authority: House Joint Resolution 711 (Regular Session, 1993)

Executive Summary:
This study is the result of House Joint Resolution No. 711, passed by the 1993 General Assembly, which requested that "the Virginia Department of State Police (DSP), in coordination with the Supreme Court of Virginia, and the Department of Criminal Justice Services, study ways to increase the effectiveness of the firearms background check system and to identify a greater percentage of persons who are prohibited by federal or state law or regulation from possessing a firearm." An interagency group was formed, which also included representation from the Department of Mental Health, Mental Retardation, and Substance Abuse Services.

The goal of the group was to maximize the ability of DSP's Virginia Firearms Transaction Program (VFTP) to identify all prospective purchasers of firearms who are ineligible to purchase, possess, or transport firearms. Two objectives were established: (1) to identify any governmental policies or procedures that have impeded the effectiveness or efficiency of VFTP and suggest ways by which these impediments can be overcome and (2) to develop databases and procedures that either increase the number of prohibitions enforced by VFTP or increase the effectiveness of the enforcement methods currently in place.

The report is organized according to the three Virginia prohibitions and the ten federal prohibitions that VFTP staff attempt to enforce. These prohibitions have been condensed and are reported as: a person's criminal involvement, use of illegal drugs, or mental impairment, or their status as a dishonorably discharged veteran, an alien illegally in the United States, or as one who has renounced their citizenship.

Each prohibition is described and any problems or issues affecting its enforcement identified. If it was found that the General Assembly could, in some way expand or improve VFTP's performance with respect to a prohibition, a recommendation pursuant to this end was made. Most of the prohibitions rest on federal regulatory authority, however, and because the prohibitions are federal in origin, have been interpreted in certain ways by federal courts, or are somewhat ambiguous in language, there is a limit to the changes that could be recommended. Although issues related to enforcement of each prohibition were presented, no recommendations were issued pertaining to the provisions based on criminal involvement, dishonorable discharge, illegal alien status, or renunciation of citizenship.

Three findings and associated recommendations constitute the substance of the report.

1. Because the federal prohibition based on a person's illegal use of or addiction to drugs is worded in the present tense, VFTP staff would have to prove current use or addiction to drugs before denying the purchase of a firearm on the basis of this prohibition. Until the federal language is modified to allow the use of drug convictions or drug treatment commitments as evidence of unlawful use or drug addiction, or new technology allows VFTP staff to test for these conditions in a quick, reliable, inexpensive, and non-intrusive manner, no attempt to enforce this prohibition should be made.

2. In order to place Virginia in compliance with the federal prohibition that prevents persons found "mentally defective" from possessing or transporting firearms, a section should be added to the Code of Virginia. Specifically, "it shall be unlawful for any person found 'legally incompetent' or 'legally incapacitated' with respect to firearm possession by a Virginia court, to knowingly or intentionally purchase, possess or transport a firearm." Violation of this section shall result in forfeiture of the firearm, although the restoration of firearm rights is possible upon petition to the court. Implementation of this recommendation will require court clerks to report all findings of legal incompetence or legal incapacitation with respect to firearm possession to the Central Criminal Records Exchange. This information will be stored in a separate, confidential file at CCRE, and accessed only for the purpose of screening prospective purchasers of firearms.

3. In order to place Virginia in compliance with the federal prohibition that prevents persons "committed to a mental institution" from possession or transporting firearms, the study group recommends that a section be added to the "Code of Virginia." Specifically, "it shall be unlawful for any person who is ordered by the court to undergo involuntary treatment at a mental hospital, to knowingly and intentionally purchase, possess, or transport firearms." Violation of this section shall result in forfeiture of the firearms. The restoration of firearm rights is provided by a "sunset clause" activated on the day a person is released from treatment.

Implementation of this recommendation will require court clerks to report all court ordered commitments to the Central Criminal Records Exchange. This information will be stored in a separate, confidential file at CCRE, and accessed only for the purpose of screening prospective purchasers of firearms.

In lieu of the fact that violation of the federal prohibition(s) based on mental impairment can result in fines and/or imprisonment, the study group decided not to attach penalties to the recommended "Code" Sections. To do so would unfairly make criminals of persons who suffer from mental disabilities not of their own choosing.