The Brady Act in Alaska

The Brady Act in Alaska

Cassie Atwell

"The Brady Act in Alaska" by Cassie Atwell. Alaska Justice Forum 16(1): 1, 6-8 (Spring 1999). Gun control - especially keeping handguns out of the wrong hands - has been a recurring theme across the U.S. in the last three decades. The Brady Handgun Violence Prevention Act, which became effective in 1994 as an addition to the Gun Control Act of 1964, seeks to control handguns by expressly prohibiting the sale of handguns to individuals falling under certain classifications. This article presents findings from a study of the effectiveness of the Brady Act in Alaska, focusing on procedures used by Alaska law enforcement agencies to determine eligibility of applicants for handgun purchases and looking at handgun purchase applications denied by the Anchorage Police Department (APD).

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%).

Figure 1. Chief Law Enforcement Officers in Alaska: Knowledge of Denial Categories under Brady

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.