[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
LETHAL LOOPHOLES; DEFICIENCIES IN STATE AND FEDERAL GUN PURCHASE LAWS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON DOMESTIC POLICY
of the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
MAY 10, 2007
__________
Serial No. 110-9
__________
Printed for the use of the Committee on Oversight and Government Reform
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
http://www.oversight.house.gov
U.S. GOVERNMENT PRINTING OFFICE
35-771 PDF WASHINGTON DC: 2006
---------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866)512-1800
DC area (202)512-1800 Fax: (202) 512-2250 Mail Stop SSOP,
Washington, DC 20402-0001
COMMITTEE ON OVERSISGHT AND GOVERNMENT REFORM
HENRY A. WAXMAN, California, Chairman
TOM LANTOS, California TOM DAVIS, Virginia
EDOLPHUS TOWNS, New York DAN BURTON, Indiana
PAUL E. KANJORSKI, Pennsylvania CHRISTOPHER SHAYS, Connecticut
CAROLYN B. MALONEY, New York JOHN M. McHUGH, New York
ELIJAH E. CUMMINGS, Maryland JOHN L. MICA, Florida
DENNIS J. KUCINICH, Ohio MARK E. SOUDER, Indiana
DANNY K. DAVIS, Illinois TODD RUSSELL PLATTS, Pennsylvania
JOHN F. TIERNEY, Massachusetts CHRIS CANNON, Utah
WM. LACY CLAY, Missouri JOHN J. DUNCAN, Jr., Tennessee
DIANE E. WATSON, California MICHAEL R. TURNER, Ohio
STEPHEN F. LYNCH, Massachusetts DARRELL E. ISSA, California
BRIAN HIGGINS, New York KENNY MARCHANT, Texas
JOHN A. YARMUTH, Kentucky LYNN A. WESTMORELAND, Georgia
BRUCE L. BRALEY, Iowa PATRICK T. McHENRY, North Carolina
ELEANOR HOLMES NORTON, District of VIRGINIA FOXX, North Carolina
Columbia BRIAN P. BILBRAY, California
BETTY McCOLLUM, Minnesota BILL SALI, Idaho
JIM COOPER, Tennessee ------ ------
CHRIS VAN HOLLEN, Maryland
PAUL W. HODES, New Hampshire
CHRISTOPHER S. MURPHY, Connecticut
JOHN P. SARBANES, Maryland
PETER WELCH, Vermont
Phil Schiliro, Chief of Staff
Phil Barnett, Staff Director
Earley Green, Chief Clerk
David Marin, Minority Staff Director
Subcommittee on Domestic Policy
DENNIS J. KUCINICH, Ohio, Chairman
TOM LANTOS, California DARRELL E. ISSA, California
ELIJAH E. CUMMINGS, Maryland DAN BURTON, Indiana
DIANE E. WATSON, California CHRISTOPHER SHAYS, Connecticut
CHRISTOPHER S. MURPHY, Connecticut JOHN L. MICA, Florida
DANNY K. DAVIS, Illinois MARK E. SOUDER, Indiana
JOHN F. TIERNEY, Massachusetts CHRIS CANNON, Utah
BRIAN HIGGINS, New York BRIAN P. BILBRAY, California
BRUCE L. BRALEY, Iowa
Jaron R. Bourke, Staff Director
C O N T E N T S
----------
Page
Hearing held on May 10, 2007..................................... 1
Statement of:
Brand, Rachel L., Assistant Attorney General for Legal
Policy, Department of Justice, accompanied by Stephen R.
Rubenstein, Chief Counsel, Bureau of Alcohol, Tobacco,
Firearms and Explosives.................................... 125
Sorenson, Susan B., professor of social policy and
criminology, University of Pennsylvania; Daniel W. Webster,
associate professor and co-director of the Center for Gun
Policy and Research, Johns Hopkins Bloomberg School of
Public Health; and Ronald S. Honberg, professor of social
policy and criminology, director of policy and legal
affairs, National Alliance on Mental Illness............... 154
Honberg, Ronald S........................................ 169
Sorenson, Susan B........................................ 154
Webster, Daniel W........................................ 162
Thomas, Robyn, executive director, Legal Community Against
Violence; Paul Helmke, president, Brady Campaign and Center
to Prevent Gun Violence; and John Feinblatt, criminal
justice coordinator for the city of New York............... 36
Feinblatt, John.......................................... 71
Helmke, Paul............................................. 59
Thomas, Robyn............................................ 36
Letters, statements, etc., submitted for the record by:
Brand, Rachel L., Assistant Attorney General for Legal
Policy, Department of Justice, prepared statement of....... 127
Burton, Hon. Dan, a Representative in Congress from the State
of Indiana:
Letter dated May 16, 2007.................................... 119
Prepared statement of........................................ 15
Cummings, Hon. Elijah E., a Representative in Congress from
the State of Maryland, prepared statement of............... 185
Davis, Hon. Danny K., a Representative in Congress from the
State of Illinois, prepared statement of................... 11
Feinblatt, John, criminal justice coordinator for the city of
New York:
Letter to Congress........................................... 100
Letter to Senator Durbin..................................... 95
Prepared statement of........................................ 73
Helmke, Paul, president, Brady Campaign and Center to Prevent
Gun Violence, prepared statement of........................ 62
Honberg, Ronald S., professor of social policy and
criminology, director of policy and legal affairs, National
Alliance on Mental Illness, prepared statement of.......... 171
Kucinich, Hon. Dennis J., a Representative in Congress from
the State of Ohio:
July 21, 2003 Washington Post article........................ 113
Prepared statement of........................................ 5
Sorenson, Susan B., professor of social policy and
criminology, University of Pennsylvania, prepared statement
of......................................................... 157
Thomas, Robyn, executive director, Legal Community Against
Violence, prepared statement of............................ 39
Webster, Daniel W., associate professor and co-director of
the Center for Gun Policy and Research, Johns Hopkins
Bloomberg School of Public Health, prepared statement of... 164
LETHAL LOOPHOLES; DEFICIENCIES IN STATE AND FEDERAL GUN PURCHASE LAWS
----------
THURSDAY, MAY 10, 2007
House of Representatives,
Subcommittee on Domestic Policy,
Committee on Oversight and Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 2 p.m. in room
2154, Rayburn House Office Building, Hon. Dennis Kucinich
(chairman of the subcommittee) presiding.
Present: Representatives Kucinich, Davis of Virginia,
Burton, Issa, and Bilbray.
Staff present: Jaron R. Bourke, staff director; Charles
Honig, counsel; Jean Gosa, clerk; Nidia Salazar, staff
assistant; Auke Mahar-Piersma, legislative director; Natalie
Laber, press secretary, Office of Congressman Dennis J.
Kucinich; Erin Holloway, legislative assistant, Office of
Congressman Dennis J. Kucinich; Leneal Scott, information
systems manager; Jacy Dardine, full committee intern; Ann Marie
Turner, minority counsel; Allison Blandford, minority
professional staff member; and Benjamin Chance, minority clerk.
Mr. Kucinich. The subcommittee will come to order.
This is a hearing of the Domestic Policy Subcommittee of
the Oversight and Government Reform Committee. Today's hearing
will cover Lethal Loopholes: Deficiencies in State and Federal
Gun Purchase Laws.
We have three panels today. I will be introducing the first
panel in a moment.
Without objection, the Chair and ranking minority member
will have 5 minutes to make opening statements, followed by
opening statements not to exceed 3 minutes by any other Member
who seeks recognition. Without objection, Members and witnesses
may have 5 legislative days to submit a written statement or
extraneous materials for the record.
Good afternoon and welcome. The Domestic Policy
Subcommittee of the Oversight and Government Reform Committee
has come to order. I want to recognize the significant
contributions of the ranking member of the full committee. This
hearing is bipartisan in its conception and in its development.
I want to thank the gentleman for his cooperation.
Today in America, people who shouldn't get guns get guns.
It is that simple, everybody knows that. How they get guns and
how to prevent them from getting guns, that is not so simple.
That is why we are here today. This hearing will focus on
lethal loopholes and deficiencies in laws designed to prevent
high risk individuals from buying firearms. There are other
important reasons why America has such a high rate of gun
violence, gang activity, inadequate provision of health
services and cultural attitudes toward violence.
But those issues are for another day. There are many
Federal and State laws that have been on the books, some for
decades, aimed at preventing certain categories of people from
purchasing guns. The problem is that they do not function
properly or are not properly enforced.
In 1968, when Congress passed the Gun Control Act, it made
a judgment that certain categories of individuals termed
``prohibited persons'' should not be allowed to purchase or
possess handguns or long guns because of the high risk that
they would later use these firearms to commit crimes.
Prohibited persons include convicted felons, illegal aliens and
individuals with serious mental health issues. The problem was
that it was difficult to determine which individuals fell into
these categories when they walked into a gun dealer to buy a
gun.
In 1993, Congress passed the Brady Act with the goal of
instantly checking a prospective handgun purchaser against a
nationwide data base that would contain all information
necessary to determine if the purchase was a prohibited person.
To the extent the data is in the system, the background check
works fairly well. Between 1994 and the end of 2005, Federal
and State law enforcement performed about 70 million background
checks and identified 1,360,000 purchasers in the prohibited
categories, a rejection rate of 1.9 percent and over 90 percent
of prospective purchasers got an instant response.
But this is only part of the story, because that system is
only as smart as the information we put into it. And a lot of
those people the system lets through we all know should not be
allowed to own guns, people like the disturbed young man who
took the lives of 33 innocent people last month at Virginia
Tech.
We will hear testimony from the Government that the
information in the data base, actually three data bases,
collectively called NICS, is woefully incomplete. For some
prohibited persons categories, there is much less than half of
the data that should be there. And about half of the States
don't provide the FBI with any mental health data.
Much of the information about prohibited persons originates
in the States and localities and they often fail to collect
this information. If they do collect it, they don't send it in
a usable form to the Federal Government. Why? Well, after all,
that only hurts the States, which rely on the data where
illegal gun purchases and gun violence occur.
Part of it is that the current law does not obligate the
States to report this vital information and it is difficult and
expensive to do so. Some States have other policies that get in
the way.
The result is that 40 years later, 40 years after the
passage of the Gun Control Act, individuals who are prone to
use guns illegally are still getting guns legally. There is
legislation currently being considered by the House Judiciary
Committee, H.R. 297, the NICS Improvement Act of 2007, which is
designed to remedy the States' reporting failures through a
combination of direct funding for improving States' reporting
systems, fiscal incentives for States' compliance and penalties
for non-compliance. We will hear testimony that passage of this
law would help reduce illegal firearm purchases, but that the
law alone won't be enough.
Even if this reporting improves, there remains the gun show
loophole. The Brady Act's instant background check only applies
to Federal-licensed firearm dealers and not to private sales,
including sales by unlicensed dealers at gun shows. These
private sales are largely unregulated and many guns involved in
firearm violence have been traced to gun show sales. Instant
background checks are not the only avenue to enforce gun
control and the Brady Act.
Federal Government enforcement is primarily the
responsibility of the Bureau of Alcohol, Firearms, Tobacco and
Explosives, the ATF. The ATF can investigate, inspect and
monitor sales of licensed and unlicensed firearm dealers,
revoke licenses or refer for prosecution dealers and purchasers
who break the law and work with State and local law enforcement
to prevent illegal sales.
But there is reason to believe, including Government
studies, that the ATF does not do its enforcement job well.
This hearing will investigate where lax enforcement is a
product of the AFT's lack of resources and authority and where
the Bureau simply does not use its authority well. We will also
hear how Federal law makes it difficult, if not impossible for
State and local law enforcement to get data necessary to trace
guns used in crimes back to the gun dealers that illegally sold
them.
In spite of these limitations, we will learn the
unbelievable story of the efforts of New York City to fill the
Federal enforcement void by suing out of State gun dealers who
are the source of guns involving crimes afflicting New York
City. In setting the suit, the federally licensed gun dealers
located in Pennsylvania, South Carolina and as far away as
Georgia agreed to a 3-year inspection and monitoring regime
administered by New York City. I guess necessity really is the
mother of invention. It fell upon a city to enforce Federal law
because the ATF is AWOL. Kudos to New York City, which has sent
its top official in this area to be a witness today.
Our third panel will focus on the States. We will hear
testimony on how some States do a better job than others.
First, we will learn about how some States have enacted laws
and developed internal systems designed to improve their data
collection and reporting. Second, many States have moved into
the vacuum of Federal regulation and have passed laws
regulating non-federally licensed dealers and effectively
closed the gun show loophole.
Finally, we are going to hear about States that have passed
purchase prohibitions beyond those required by Federal law,
aimed at categories of individuals who have shown propensity
for violence, including juvenile offenders and certain
misdemeanor and domestic violence offenders. We will also hear
from an advocate for mental health patients who cautions that
proposals to broaden the prohibited categories for people
undergoing mental health treatment should be grounded not on
prejudice, but on sound science, and that these individuals
actually pose a risk of violence.
Moreover, we will hear concerns that these laws will not be
crafted to serve as a disincentive to people seeking mental
health treatment. It is possible that the States' approaches
can reveal some best set of practices that would be adopted by
other States or percolate up and become the Federal standard.
But as with Federal purchase restrictions, enforcement of
State restrictions depends on other States reporting crucial
information. We will hear about the lack of uniformity and
problems of coordination across the States. In Ohio law, for
example, prohibiting a certain category of high risk
individuals from buying handguns will not stop individuals who
commit disqualifying offenses in other States if those States
do not share their information.
Finally, we can expect more from the States in the way of
reporting, respect their sovereignty and learn from them.
However, because the market for guns is national and State
borders are porous for both guns and people, in the end this is
a national problem. It is my hope that this hearing can show
the way for the Federal and State governments, through the
implementation of new policy or the passage of new laws, to
close these loopholes and ultimately to reduce firearm
violence.
At this time, the Chair is pleased to recognize Mr. Davis.
[The prepared statement of Hon. Dennis J. Kucinich
follows:]
[GRAPHIC] [TIFF OMITTED] 35771.001
[GRAPHIC] [TIFF OMITTED] 35771.002
[GRAPHIC] [TIFF OMITTED] 35771.003
[GRAPHIC] [TIFF OMITTED] 35771.004
Mr. Davis of Virginia. Thank you. I want to thank you,
Chairman Kucinich, for holding this hearing on an issue of
critical importance to the citizens of every State in this
Nation. The most lethal episode of gun violence by an
individual in our history, the shooting last month at Virginia
Tech, prompted many to take a critical look at Federal and
State prohibitions against gun ownership. As a result, Virginia
Governor Tim Kaine closed a loophole in the way the
Commonwealth processes information on those found to pose a
danger to the community.
Before, only persons actually admitted to a hospital or
residential treatment facility were deemed dangerous enough to
be subject to the gun ownership ban. By Executive order, the
Governor eliminated the inapt distinction in this context
between inpatient and outpatient care to require prompt listing
of all individuals undergoing involuntary mental health
treatment in any setting. In issuing his order, the Governor
correctly observed, ``The key factor should be the danger
finding, and not whether the judicially mandated treatment is
performed in an institution or on an out-patient basis.'' That
is what we are here today to discuss, how best to keep guns out
of the hands of dangerous individuals.
The Gun Control Act of 1968 listed those who were
prohibited from purchasing or possessing a firearm. The Brady
Handgun Violence Prevention Act of 1993 requires that all
federally licensed firearms dealers obtain a background check
on potential purchasers through the National Instant Check
System [NICS]. The NICS contains information from State and
Federal agencies about individuals who should not be permitted
to purchase a gun. In an ideal world, every time an individual
prohibited under law attempts to buy a gun, a quick background
check would prevent the purchase.
Unfortunately, we don't live in an ideal world. In truth,
not every State compiles and maintains an accurate list of
those who should not have a gun. If the State's lists are
incomplete the NCIS data are also incomplete. And not all guns
are sold by licensed dealers. Those gaps make it possible for
dangerous people to obtain lethal weapons.
We hear a variety of reasons for reporting lapses and
delays, from inadequate technology systems to privacy issues to
costs. But we all know from sad experience, even minor
oversights or loopholes can have major and tragic consequences.
Some States are moving to expand and strengthen the exclusion
criteria for gun purchases. We will discuss some of those
proposed standards today, including juvenile offenses, serious
misdemeanor convictions, imposition of restraining orders
protecting other than spouses or children and a more expansive
list of mental illness diagnoses.
We will hear from academics and others who have studied
evidence of a predictive connection between these and other
factors and subsequent violence. There is no denying this is a
complicated issue. Are we willing to include in the mental
illness prohibition individuals who voluntarily commit
themselves to a mental health institution? Do we tell someone
who struggled with mental illness in his or her 20's, received
needed treatment and has gone on to live a productive life that
he or she cannot buy a gun 20 years later?
Will including a broader range of mental health indicators
discourage people from seeking treatment? Does the current list
of prohibited acts, conditions and findings capture advances in
psychiatric understanding and all known predilections to
violence?
The process of crafting additional prohibitions and
applying them to all gun sales is not easy and no one has a
perfect solution. Hopefully, today's hearing will help us
better understand the questions and get closer to workable
answers. I would just add that this violence claimed four
victims plus the shooter, all from northern Virginia, in my
home county. This has affected the whole community, and I
appreciate your looking into this. I appreciate our witnesses
being here today.
[The prepared statement of Hon. Danny K. Davis follows:]
[GRAPHIC] [TIFF OMITTED] 35771.005
[GRAPHIC] [TIFF OMITTED] 35771.006
Mr. Kucinich. I thank the gentleman from Virginia.
The gentleman from Indiana, Mr. Burton.
Mr. Burton. Thank you, Mr. Chairman.
We all want to keep guns out of the hands of people who
would commit crimes of violence. There is no question about
that. But we have to be very careful when we start messing
around with the second amendment. And I know we are not going
to be covering the second amendment today, but I think it is
important that we talk about it anyhow.
In 1977, here in Washington, DC, they put into law a
permanent ban on all handguns and all guns in a person's house.
Since 1977, the crime rate and the murder rate in this city has
gone up triple, over triple, because the criminals know they
can come into your house and you can't protect yourself.
I had a young lady that was my secretary, she lived on the
second floor of an apartment building about five blocks from
the Capitol. A guy shinnied up the drain pipe and came in
through a window she had open in the summer time and stabbed
her four or five times. She finally got down the stairs, opened
a door and she hit him with a pan. That is the only thing she
could--she couldn't even have mace in her house. So we have to
be very careful about taking away the rights of homeowners and
individuals that would allow them to protect themselves from
these violent criminals.
When I got off the plane, when I first got elected to
Congress in 1983, the cab driver was driving me down to the
Capitol. I said, tell me about Washington. He said, oh, it is a
great city, but the crime rate is terrible. I said, well, I
have a permit to carry a gun back in Indiana, maybe I should do
it here. He said, oh, you can't get a gun permit. I said, what
are you talking about? He said, they don't allow any guns here.
The only people who get guns are the police and the crooks. And
he reached under his seat and pulled a .38 out and held it up
and said, but if you want one, I can get you one in about 15
minutes.
So that shows you that the criminals have access to these
weapons, and they can kill people as well as the people who
have these mental problems. I am for keeping guns out of the
hands of people who are going to be a problem. But we have to
be very, very careful how we do that.
I would like to point out one thing on Virginia Tech. That
was a horrible, horrible crime. And we all want to make sure
those tragedies don't happen. And we want to make sure that
people who have mental problems or have a case history of
violence don't get guns. And it is a very tough thing to do.
But I would like to add just one thing to that. If one of
those students or one of the people at Virginia Tech had the
right to carry a weapon, do you think they might have saved
some of those people's lives, because they could have
retaliated against this guy? As it was, nobody had a way to
stop him. They shut doors and he shot through the doors.
So I would just like to say that obviously, we want to keep
guns out of the hands of people who would pose a threat to
society. But at the same time, we ought to realize that keeping
law-abiding citizens from having weapons to protect themselves
is a big, big mistake. With that, I yield back my time.
[The prepared statement of Hon. Dan Burton follows:]
[GRAPHIC] [TIFF OMITTED] 35771.007
[GRAPHIC] [TIFF OMITTED] 35771.008
[GRAPHIC] [TIFF OMITTED] 35771.009
[GRAPHIC] [TIFF OMITTED] 35771.010
[GRAPHIC] [TIFF OMITTED] 35771.011
[GRAPHIC] [TIFF OMITTED] 35771.012
[GRAPHIC] [TIFF OMITTED] 35771.013
[GRAPHIC] [TIFF OMITTED] 35771.014
[GRAPHIC] [TIFF OMITTED] 35771.015
[GRAPHIC] [TIFF OMITTED] 35771.016
[GRAPHIC] [TIFF OMITTED] 35771.017
[GRAPHIC] [TIFF OMITTED] 35771.018
[GRAPHIC] [TIFF OMITTED] 35771.019
[GRAPHIC] [TIFF OMITTED] 35771.020
[GRAPHIC] [TIFF OMITTED] 35771.021
[GRAPHIC] [TIFF OMITTED] 35771.022
[GRAPHIC] [TIFF OMITTED] 35771.023
[GRAPHIC] [TIFF OMITTED] 35771.024
[GRAPHIC] [TIFF OMITTED] 35771.025
[GRAPHIC] [TIFF OMITTED] 35771.026
Mr. Kucinich. I thank the gentleman.
I would like to start by introducing our first panel, if
there are no additional opening statements.
Mr. Burton. Mr. Chairman, can I submit for the record some
statistical data I have, please?
Mr. Kucinich. Without objection, the gentleman's submission
is included in the record. I thank the gentleman.
We will introduce our first panel. I would like to
introduce Robyn Thomas, who is the executive director of Legal
Community Against Violence. LCAV is a public interest law
center dedicated to preventing gun violence by providing legal
assistance to State and local governments. Before joining LCAV
last year, she was a practicing attorney in New York City.
Next we will hear from Paul Helmke, who has served in the
last year as president of the Brady Campaign and Brady Center
to Prevent Gun Violence, a non-partisan grassroots organization
working to prevent gun violence. Mr. Helmke has served as mayor
of Fort Wayne, IN, from 1988 through 2000. During his tenure as
mayor, he worked to strengthen the police department and
implement community policing. Mr. Helmke served as president of
the U.S. Conference of Mayors in 1997 and 1998, and was a board
member and chair of the Committee on Public Safety and Crime
Prevention for the National League of Cities.
The final witness on the first panel will be John
Feinblatt. Mr. Feinblatt was appointed New York City's criminal
justice coordinator by Mayor Michael R. Bloomberg in January
2002. In this capacity, Mr. Feinblatt has served as the chief
advisor on Mayor Bloomberg's Illegal Gun Strategy, which
includes innovative enforcement strategies, new local
legislation, and the formation of a new national coalition:
Mayors Against Illegal Guns. Prior to his appointment, Mr.
Feinblatt was the founding director of both the Center for
Court Innovation, the country's leading think tank on
problemsolving justice, and the Mid-town Community Court.
Welcome to all the witnesses. It is the policy of the
Committee on Oversight and Government Reform to swear in all
witnesses before they testify. I would ask the witnesses to
please rise and raise your right hands.
[Witnesses sworn.]
Mr. Kucinich. Thank you. Let the record reflect that the
witnesses answered in the affirmative.
I ask that each of the witnesses now give a brief summary
of your testimony, and keep the summary to 5 minutes in length.
Bear in mind that your complete written statement will be
included in the hearing record.
Ms. Thomas, you will be our first witness. You may begin.
STATEMENTS OF ROBYN THOMAS, EXECUTIVE DIRECTOR, LEGAL COMMUNITY
AGAINST VIOLENCE; PAUL HELMKE, PRESIDENT, BRADY CAMPAIGN AND
CENTER TO PREVENT GUN VIOLENCE; AND JOHN FEINBLATT, CRIMINAL
JUSTICE COORDINATOR FOR THE CITY OF NEW YORK
STATEMENT OF ROBYN THOMAS
Ms. Thomas. Thank you very much. Legal Community Against
Violence sincerely appreciates the opportunity to speak to the
committee about Lethal Loopholes: the Deficiency in State and
Federal Gun Purchase Laws.
As you mentioned, LCAV is a public interest law center
devoted to preventing gun violence. We were founded in 1993
after the assault weapon massacre at 101 California Street in
San Francisco.
I am going to address three questions related to the
deficiency in State and Federal gun purchase laws. First, how
to State and Federal gun laws interact? As you mentioned,
Federal law establishes the baseline regarding the types of
purchasers who are ineligible to acquire firearms. Those
categories of prohibited purchasers include felons, illegal
aliens, those subject to domestic violence protective orders,
and the mentally ill. Some States then expand the Federal law
by applying broader standards to some or all of these
categories. In addition, many States designate extra and
additional classes of prohibited purchasers who are not found
in the Federal law.
The second question I will address is what are the lethal
loopholes in the Federal system and how are States addressing
them? First, there are numerous gaps in the Federal law that
prohibit certain individuals from purchasing firearms. Here I
am going to touch on two basic issues, those with mental
illness and domestic violence offenders.
With respect to mental illness, Federal law prohibits
firearm purchases by those who have been involuntarily
committed or adjudicated as mental defective. This does not
reach individuals with a wide range of potentially dangerous
mental illnesses. For example, a person who is voluntarily
committed to a mental institution can still lawfully purchase a
firearm under Federal law. Many States have broadened the
category of mentally ill persons prohibited by including those
who voluntarily or involuntarily are committed to a mental
hospital.
In the case of domestic violence offenders, Federal law
prohibits firearm purchases by those who have been convicted of
a misdemeanor crime of domestic violence and those subject to
certain domestic violence protection orders. The Federal
prohibitions leave large gaps, also allowing violent offenders
to acquire firearms.
For example, the protection order prohibition does not
include those individuals who have not co-habitated with the
person who is the subject of the restrictive order. So in other
words, if you and I have not lived together and I am subject to
a restraining order, I may still purchase a firearm under
Federal law.
More than half of the individuals who are subject to
domestic violence protection orders fall into this category. So
it is a large loophole in the domestic violence prohibition.
And many States have acted to close that loophole.
I also will address gaps in enforcement. As was mentioned,
access to State records is a huge part of the issue with
enforcement of the prohibited purchaser provisions. As the
Virginia Tech incident illustrated, access to mental health and
domestic violence records is seriously inadequate. Federal law
does not and cannot require that States send relevant records
to the FBI for inclusion in the NICS data base. According to
the FBI, only 22 States voluntarily contribute mental health
records to NICS.
We note the legitimate concern for privacy regarding mental
health records. However, with laws that limit the use of such
records, this concern can be adequately addressed. Lack of
access to State records is also a significant obstacle with
regard to perpetrators of domestic violence. A recent study
showed that less than 50 percent of those believed to qualify,
even under existing Federal law, would not be included in the
system.
One way States can improve access to prohibited purchaser
records is by becoming a point of contact or POC State. POC
States can then conduct background checks through the State
system and have access to records which include NICS
information as well as independent State information, criminal
history and other data bases.
The FBI has been encouraging more States to serve as POCs.
At the present time, only 21 States serve as POCs either for
handgun transfers or other gun transfers. In addition, several
POC States already search mental health records automatically
as part of the background check system. On top of that, some
States have decided to require reporting to mental health data
bases. This is an important point, because it has two parts to
it. The first is that there has to be reporting of mental
health records and then the second is that when a background
check is done that those mental health records are actually
reviewed. It's the same situation for domestic violence
offenders. It is a twofold problem that has to be addressed.
Two other dangerous loopholes remain which I will touch on
briefly. One is the so-called default proceeds provision. What
this refers to is the instance when a background check is done
and it is incomplete after 3 days. The gun automatically
default proceeds to the requested purchaser.
Approximately 3,000 or 4,000 guns per year proceed this
year and then later have to be reacquired, when it is found
after the 3-day period has passed that the person should not
have passed the background check. Many States have posed this
loophole in a variety of different ways, from including the
length of time to not allowing a transfer if the background
check is not completed.
The final loophole that I will mention is something that
has already been mentioned, the private sale loophole. Forty
percent of the guns transferred in this country take place
through private sales which are not subject to any background
check at all. So until unlicensed sellers are also regulated by
the background check system, this will continue to remain an
avenue for a huge quantity of the guns that are sold in the
marketplace.
I would just like to close by adding that H.R. 297 that the
Congressman mentioned is a good step in the right direction,
something that encourages States to report records to NICS and
that begins to address the problem of the lack of information.
It is a step in the right direction, but there are many other
issues that need to be addressed, and we hope that this hearing
will be a beginning of addressing some of these.
Thank you very much.
[The prepared statement of Ms. Thomas follows:]
[GRAPHIC] [TIFF OMITTED] 35771.027
[GRAPHIC] [TIFF OMITTED] 35771.028
[GRAPHIC] [TIFF OMITTED] 35771.029
[GRAPHIC] [TIFF OMITTED] 35771.030
[GRAPHIC] [TIFF OMITTED] 35771.031
[GRAPHIC] [TIFF OMITTED] 35771.032
[GRAPHIC] [TIFF OMITTED] 35771.033
[GRAPHIC] [TIFF OMITTED] 35771.034
[GRAPHIC] [TIFF OMITTED] 35771.035
[GRAPHIC] [TIFF OMITTED] 35771.036
[GRAPHIC] [TIFF OMITTED] 35771.037
[GRAPHIC] [TIFF OMITTED] 35771.038
[GRAPHIC] [TIFF OMITTED] 35771.039
[GRAPHIC] [TIFF OMITTED] 35771.040
[GRAPHIC] [TIFF OMITTED] 35771.041
[GRAPHIC] [TIFF OMITTED] 35771.042
[GRAPHIC] [TIFF OMITTED] 35771.043
[GRAPHIC] [TIFF OMITTED] 35771.044
[GRAPHIC] [TIFF OMITTED] 35771.045
[GRAPHIC] [TIFF OMITTED] 35771.046
Mr. Kucinich. Thank you very much, Ms. Thomas.
STATEMENT OF PAUL HELMKE
Mr. Helmke. Thank you, Chairman Kucinich, Ranking Member
Issa, Congressman Davis and fellow Hoosier, Congressman Burton,
Mr. Bilbray.
I come to you as the recipient of two NRA marksmanship
awards from grade school, a lifelong Republican, born and
raised in Indiana, where as you indicated, I was the mayor of
Fort Wayne for three terms.
I am also here as the president of the Brady Campaign and
Brady Center to Prevent Gun Violence, the Nation's largest
organizations working for reasonable gun policies.
I don't see a contradiction. The proposals I recommend are
common sense, simply common sense. They should appeal to most
Americans across party and geographic lines and can help make
our communities safer. I have submitted my written testimony,
so I will just address a few points quickly here.
We have an epidemic of gun violence in this country. Every
year in America, almost 30,000 people are killed by gunfire, 10
times the death toll of 9/11. About 32 people are murdered
every day with guns. That is a Virginia Tech massacre every day
in this country. And for every death, there is another two or
three people that are seriously wounded.
In recent years, violent gun crime has spiked, increasing
almost 50 percent from 2004 to 2005, the largest increase in 14
years. What are we going to do about it?
What we are doing now to prevent gun violence clearly is
not working. We need to plug the lethal loopholes in our laws.
There are many things we should do, but let me just touch on a
few.
No. 1, we need to make sure that the Brady background
system is effectively applied. The Virginia Tech killer was
prohibited from buying guns under Federal law, since a court
had found him to be a danger to himself or others as a result
of mental illness. Unfortunately, Virginia did not provide such
orders to their State police, so the killer passed a background
check and bought his guns. Effective Brady background checks
with access to all relevant records would have stopped those
sales.
According to the FBI, in 28 States, no relevant mental
health orders are made available for background checks, so many
people can buy guns, even though they are prohibited by Federal
law. We need to close that lethal loophole.
The NICS Improvement Act, introduced by Carolyn McCarthy as
H.R. 297, is a necessary step. This legislation would provide
grants and other incentives to encourage States to forward all
relevant records on people prohibited from possessing firearms
to the Federal National Instant Criminal Background Check
System. Had it been law, the Virginia Tech shooting may have
been averted.
Now, there has been a great deal of misinformation about
the effect of gun laws on those being treated for mental
illness. I would like to set the record straight. Under
existing Federal law, you will not be denied a gun simply
because you have sought treatment for or been diagnosed with a
mental illness. Existing Federal law prohibits from buying guns
only those mentally ill persons who have been adjudicated by a
``lawful authority,'' such as a court, to be a danger to
themselves or others as a result of mental illness, who lack
the mental capacity to manage their own affairs, as well as
persons who have been involuntarily committed to a mental
institution.
Further, no one accesses your medical records in a
background check. The only records entered into the Federal or
State data bases are relevant court or other orders indicating
that you fall into a prohibited category. When anyone is denied
a gun purchase because they fail a background check, the gun
dealer simply gets back a ``denied'' message, with no
information as to why the person is denied.
So Federal gun laws create no disincentive for people to
seek mental health treatment or obtain a diagnosis. But the
Virginia Tech massacre provides another reminder that those who
are dangerous because of mental illness should not be allowed
to buy guns.
Second point I want to address: we must be sure that no
guns are sold without a background check. As Congressman Davis
pointed out, incredibly, current Federal law allows people
without a Federal license to sell guns without a background
check, so long as the seller is not ``engaged in the business''
of selling guns and the buyer is from the same State. We need
to close this loophole by passing the Gun Show Loophole Closing
Act of 2007, introduced as H.R. 96 by Representative Castle
from Delaware, co-sponsored by Representatives McCarthy and
Shays.
No. 3, we must give law enforcement the tools and resources
it needs to fight gun crimes, including illegal gun trafficking
and corrupt gun dealers. Studies have shown, as you indicated,
Mr. Chairman, that 1 percent of gun dealers sell almost 60
percent of crime guns. Yet we tie law enforcement's hands. We
put blinders on them and we give special protections to corrupt
gun dealers who supply these criminals.
Law enforcement must have all the information it needs.
Congress must eliminate appropriation riders to ATF's budget,
the so-called Tiahrt amendment, that shields important gun data
and makes it uniquely exempt from the Freedom of Information
Act. We need to eliminate other restrictions that make it
harder for law enforcement to crack down on corrupt dealers.
Law-abiding gun dealers do not need special protections, and
corrupt dealers don't deserve them. There are a number of other
loopholes that we hope will be addressed in the future: the
fact that there is no limit on the amount of guns you can buy
and the size of the arsenal you stock, the fact that the
terrorists can be on the terrorist watch list and they are not
prohibited from purchasing guns currently, the fact that
weapons of war are often available for purchase.
But all the loopholes we have been talking about today are
law and order proposals. They will not prevent law-abiding
citizens from having guns in their home if they choose; they
will not cost a single sportsman a day of hunting season. They
are supported by law enforcement and by most Americans.
Too many of our neighbors are experiencing the same pain
experienced by the Virginia Tech victims and their families
every day. I ask Congress what we should all be asking: what
are you going to do about it?
Thank you for having this hearing. Thank you for addressing
the issue. You show that you are not silent on guns, and I
appreciate that. Thank you.
[The prepared statement of Mr. Helmke follows:]
[GRAPHIC] [TIFF OMITTED] 35771.047
[GRAPHIC] [TIFF OMITTED] 35771.048
[GRAPHIC] [TIFF OMITTED] 35771.049
[GRAPHIC] [TIFF OMITTED] 35771.050
[GRAPHIC] [TIFF OMITTED] 35771.051
[GRAPHIC] [TIFF OMITTED] 35771.052
[GRAPHIC] [TIFF OMITTED] 35771.053
[GRAPHIC] [TIFF OMITTED] 35771.054
[GRAPHIC] [TIFF OMITTED] 35771.055
Mr. Kucinich. Thank you, Mayor.
Mr. Feinblatt.
STATEMENT OF JOHN FEINBLATT
Mr. Feinblatt. Good afternoon. Thank you, Mr. Chairman,
Ranking Member Issa and distinguished members of the
subcommittee.
I am here to talk about crime control, not gun control. As
Mayor Michael Bloomberg's Criminal Justice Coordinator, I serve
as the mayor's chief advisor on criminal justice policy.
Controlling crime is my chief concern, and I can assure you
that it is an absolute top priority for the mayor.
I am proud today to represent a city that has made enormous
strides combatting crime. According to the FBI, New York City
is the safest big city in America. In New York City, the crime
rate has dropped 21 percent since Mayor Bloomberg took office.
Already this year, homicides are down 23 percent compared to
the same period last year, and shooting incidents are down 16
percent.
Unfortunately, the national crime story isn't so bright.
After years of decline, crime rates are now on the rise across
the country. A recently released study by the Police Executive
Research Forum shows that homicides are up 20 percent while
aggravated assault with a firearm has increased by 30 percent
since 2004. This alarming trend is one of the reasons why
mayors across the country are working together to combat the
flow of illegal guns into their cities.
One year ago, in April 2006, Republican Mayor Michael
Bloomberg and Democratic Mayor Tom Menino of Boston invited 13
mayors to join in a conversation about the scourge of illegal
guns. That initial group of 15 mayors has grown into the Mayors
Against Illegal Guns Coalition, comprised of more than 225
mayors from more than 40 States, representing over 50 million
people. At the Federal level, this coalition has one priority
and one priority only: to repeal the Tiahrt Amendment
restrictions on crime gun trace data.
Let me be clear about what data we are talking about here,
because this data is about only one thing, and that is guns
recovered in crimes. It is not about any sort of wholesale
access to the sale records of lawful gun owners.
Why do mayors oppose the Tiahrt Amendment? It is simple.
Their police chiefs are telling them that the Tiahrt Amendment
makes them do their jobs with a blindfold on. Despite the
lessons we learned on the tragic days surrounding September
11th, the Tiahrt Amendment prevents police from connecting the
dots.
There are four principal restrictions of the Tiahrt
Amendment. One, it restricts access to aggregate crime gun
data, which means cities can't look at trends and patterns.
Two, it blocks access to data from other cities and States,
which means the police can't get a regional picture of where
the illegal guns are flowing from. Three, it prevents cities
from using gun trace data to hold accountable the few dealers
who break the law. And four, it stops the ATF from producing
national reports, which prevent all of us from getting a full
picture of how guns move into the illegal market. This makes no
sense.
Every year, Congress has made the Tiahrt Amendment more and
more restrictive. This year, the Justice Department and the
White House seem determined to make these restrictions even
worse. As Mayor Bloomberg wrote to Attorney General Gonzalez on
May 3rd of this year, ``Your Justice Department has submitted
an appropriations request to Congress that not only largely
retains the Tiahrt language, but makes it even worse, adding
provisions that would require police officers to certify the
reasons for their use of trace data, which could result in
criminal prosecutions of police officers.''
The gun lobby has put forward two main talking points in an
attempt to support its defense of the Tiahrt Amendment. Neither
stand up. First, they claim that the restrictions protect
undercover law enforcement officers. But they have not
documented a single case of an undercover officer being exposed
by the release of trace data prior to the enactment of the
Tiahrt Amendment.
Second, they argue it will subject gun dealers to undue
harassment. But the truth is that 85 percent of dealers have no
crime gun traces in a given year and as you have heard before,
1 percent of the dealers account for nearly 60 percent of the
traces.
Our coalition of 225 mayors knows the gun lobby's claims
are false, and so do the 10 national law enforcement
organizations, the more than 20 State and regional law
enforcement organizations and the more than 185 individual law
enforcement executives who have written to Congress to oppose
the Tiahrt Amendment. Some ask, why are the mayors taking the
fight against illegal guns into their own hands? It is because
the Federal Government has so clearly dropped the ball.
By their own admission, ATF is not up to the task.
According to the Department of Justice Inspector General, in
fiscal year 2002, ATF revoked or refused to renew just 2.8
percent of the licenses of dealers who were found to have
violations, even though those dealers had an average of 70
violations each. And just 3 days ago, ATF's chief public
affairs officer told Time Magazine that at the current rate of
inspections, it would take 17 years to inspect all existing
licensed firearm dealers.
It is the Federal Government's failure to enforce the laws
on the books that has forced New York City and others to act.
Ninety percent of guns recovered in crimes in New York City
come from out of State. That is why New York City initiated
lawsuits against 27 gun dealers from 5 States last year. In
each of these 27 cases, we sent in undercovers and caught the
dealers in the act of completing illegal ``straw'' purchases. I
am pleased to report that 12 of the 27 dealers have now settled
out of course, and agreed to unprecedented oversight of their
firearms sales.
Having spoken to countless mayors, countless prosecutors
and countless police, there is only one way to interpret what
Congress did when it enacted the Tiahrt Amendment: it chose to
protect the privacy of criminals over the lives of police
officers. If this Congress is serious about getting tough on
crime, then it will repeal the Tiahrt restrictions and help
State and local enforcement combat illegal guns.
Thank you.
[The prepared statement of Mr. Feinblatt follows:]
[GRAPHIC] [TIFF OMITTED] 35771.056
[GRAPHIC] [TIFF OMITTED] 35771.057
[GRAPHIC] [TIFF OMITTED] 35771.058
[GRAPHIC] [TIFF OMITTED] 35771.059
[GRAPHIC] [TIFF OMITTED] 35771.060
[GRAPHIC] [TIFF OMITTED] 35771.061
[GRAPHIC] [TIFF OMITTED] 35771.062
[GRAPHIC] [TIFF OMITTED] 35771.063
Mr. Kucinich. Thank you very much, Mr. Feinblatt.
I just want to indicate how we are going to proceed. There
is a vote on, and the ranking member, Mr. Issa, has requested
time at this moment. So I will yield to him, then after that,
we are going to take a break for the votes. It could be about
45 to 50 minutes. I would ask the panel to remain for
questions.
So at this time, the Chair will yield to Mr. Issa.
Mr. Issa. Thank you, chairman.
I apologize for not having been here at the beginning to
make my opening statement. We were unavoidably delayed in a
piece of conference business, as we call it, a vote within the
committee.
Mr. Chairman, I want to thank you for holding this hearing
today. I have forwarded a letter that objects to some aspects
of this committee hearing not being as full and complete as I
would like it to be. However, it is very clear that at a
minimum, we will receive a good cross-section of some of those
legitimate loopholes that exist, particularly the mental
illness fail to implement that has clearly, clearly played a
part in the tragic deaths of 32 at Virginia Tech.
Moreover, it is very clear that Congress does have a
continued role in working with the States to see that the full
intent of Congress, not just under the Brady Bill, but under
all our prior legislation, is implemented. I happen to come
from California, a State that is known for tough gun laws. But
even there, I want to commend, and this doesn't often happen
these days, Attorney General Alberto Gonzalez for the fact that
he repeatedly insisted that in California Federal gun laws be
enforced even in a State with some of the toughest gun laws.
That Federal U.S. Attorney arm is extremely important. If
anything, although the President made it a top priority, it
needs to be an even higher priority.
We cannot stand behind the second amendment, which I do
very strongly, if in fact we will not ensure that those who
legitimately should be denied the right to keep and bear arms
are in fact denied that. I look forward to this hearing. I have
a strong view that we should have at least one followup hearing
in which some of the people who strongly support the second
amendment and strongly support that we do not need additional
laws are given an opportunity to make their case of how we can,
in fact, with the existing laws, enforce sufficiently to make
those who should not have guns not have guns.
I believe that the firearm laws need to be looked at
carefully. But most importantly, I look forward to our
witnesses giving us the insight into the lack of enforcement
that has led to many tragedies around the United States.
With that, Mr. Chairman, I will put the rest of it in the
record, with unanimous consent. Thank you. I yield back.
Mr. Kucinich. Without objection, the gentleman's statement
and letter is included in the record. I thank the gentleman
very much for his presence and for his testimony.
At this time, the Chair is going to declare a recess until
I would say about 50 minutes from now, we will come back. We
will ask the witnesses if they will remain or be back here in
50 minutes, so that we can go to questions.
Thank you very much.
[Recess.]
Mr. Kucinich. The Domestic Policy Subcommittee will resume.
Our hearing today is on Lethal Loopholes: Deficiencies in
State and Federal Gun Purchase Laws.
We are now at the point where we are going to ask the first
panel to answer questions. I would like to begin by asking both
Ms. Thomas and Mr. Helmke: Without closing the gun show
loophole, is there anything else that can be done that helps
prevent prohibited persons from getting guns, or does reform
just divert individuals to unregulated private sales,
individuals who are now in NICS?
Ms. Thomas. I think as has already been discussed by
members of the panel, there are so many areas in which you can
begin. I think it can begin with closing some of the ways in
which these categories are defined, whether it's mental health
prohibition or domestic violence offender prohibitions. So at
the State level that can be done, and certainly as well as at
the Federal level. Both of those things wouldn't entail closing
the private sale loophole, but would entail shoring up
prohibitions that already exist.
Secondarily to actually impacting those provisions, there
are other categories of purchasers who are not prohibited. For
example, domestic violence juvenile offenders are not
prohibited under Federal law from acquiring firearms. That is
something that might need to be looked at, as to whether there
is a way to implement that into this. Certainly many States
already have created prohibitions around particular categories
that aren't covered by the Federal law.
Then last, going back to the State recordkeeping and the
way in which that is transferred to the Federal level. Right
now you do have Sates that report very well up to the NICS
system and the FBI. That is very helpful, especially as the
chairman mentioned, with regard to our porous borders. If in
California, we have very good recordkeeping for mental illness,
and I am in the system, but I move to another State, say
Nevada, and California doesn't report to the FBI or NICS,
therefore in Nevada, they won't have access to that
information.
So I think there are ways in which the data can be
transferred that would be extremely helpful to shoring up some
of these problems.
Mr. Kucinich. Mr. Helmke.
Mr. Helmke. The question usually comes to me in terms of,
well, the bad guys don't follow the rules, so why should we
make rules. And I think if we analyze this, the guns come from
some place. And we don't want to make it easy for dangerous
people to get guns. That is why we have the 1968 Gun Control
Act. That is why we have the Brady Bill, to do a check to make
sure that prohibited purchasers, we don't rely on the
prohibited purchaser filling out the form. We check to see what
the records are.
So again, the first thing we need to do is to make sure
that we are strengthening the Brady Bill, that we get good
information into the system from the States as to felons and
other prohibited purchasers. That is the first crucial part.
Then we need to make sure, I think, that the Brady background
checks are applied to all sales, that the so-called gun show
loophole, the private seller exception that we talked about.
But then we have to focus on the thing that Mr. Feinblatt
talked about, and that is that guns do get in, criminals do
pick up guns illegally. But where do those guns come from? And
when you talk to police chiefs around the country, when you
talk to mayors around the country, most guns that are used in
crimes, it has been a fairly short period of time that it has
come from a legitimate gun dealer to the street. It is not old
guns we are seeing used in crimes. Most guns that are used in
crimes are 2 to 3 years old. They have come fairly quickly from
the legitimate market to the criminal market. How does that
happen?
That is one of the reasons that we focus on Tiahrt. We need
to find out where the guns are coming from. Once you find where
they are coming from, then you can develop strategies to make
it harder, strengthening ATF, dealing with the bulk sales of
guns.
Mr. Kucinich. And this goes to the issue of the
completeness of the data in the NICS. So the following,
including all the Federal prohibited persons categories, what
is the percentage of data that has been entered into the NICS
data base in a form that can be used by the Brady background
check, for example?
Mr. Helmke. The States have done a very good job in terms
of felony records. Where the States haven't done a very good
job are with regard to the other categories. This deals with
those who are a danger to themselves or others because of
mental illness. It is a category that people put in the NICS
index, is what they call it.
But for example, in terms of people who are considered a
danger to themselves or others because of mental illness, the
mental illness category of prohibited purchaser, there are only
about 235,000 names entered into that record. I have seen some
estimates that are at least 2.6 million people
institutionalized involuntarily in this country. That means
there is a disconnect between the mental health records that
are getting in there and the number of people that would
actually be a prohibitive purchaser.
Mr. Kucinich. So if you had a complete NICS data base, that
would include, let's say, 1,000 pieces of information or 1,000
pieces of data, and NICS had access to only about 500, what
would you say? Could you give a quantification, that you just
said 235,000 of 1.2 million?
Mr. Helmke. And these are estimates, because we don't have
complete records.
Mr. Kucinich. Can you give me a rough estimate, percentage?
Mr. Helmke. In terms of the mental health records, in terms
of a disqualifying mental illness, findings that someone is
dangerous to themselves or others, a prohibited purchaser, it
is probably just 10 percent of the records. Virginia actually
is one of the better States in terms of reporting records. They
have reported about 80,000 instances.
Mr. Kucinich. That is in mental health records?
Mr. Helmke. That is criminal health records.
Mr. Kucinich. What about criminal conviction data? Is it
just as problematic?
Mr. Helmke. Well, particularly when you look at
misdemeanors, dealing with the domestic violence area that Ms.
Thomas talked about, again, the States do a pretty good job,
because they have computerized most of their felony records.
When you get into misdemeanors, when you get into restraining
orders, when you get into the mental illness disqualifying
records, it is basically hit or miss whether the State has
given you anything at all.
Mr. Kucinich. I am going to come back, to that line of
questioning, but it is now time for Mr. Burton, if he so
chooses, to ask questions. Mr. Burton.
Mr. Burton. Thank you, Mr. Chairman.
I am concerned about, you are advocating, I guess, that the
Federal Government demand of the States that they provide
adequate records. That is essentially what you want to do,
right?
Mr. Helmke. In 1968, the Federal Government said that
certain people were prohibited purchasers and declared as a
policy that those people were dangerous people who should not
be getting guns. So we are trying to figure out, how do we turn
that statement of who is a prohibited purchaser into an
effective enforcement tool.
Mr. Burton. Are you advocating that there be Federal
records kept, that the States are required to send these
records to Washington, DC, and that make sure we keep track of
them through the Federal Government?
Mr. Helmke. Currently, States have a choice. They can be
what is called a point of contact State, and I think there are
22 or so of those?
Ms. Thomas. About 20.
Mr. Helmke. About 20 of those now where they handle the
records on their own. There are other States who decide they
don't want to handle that, and they send it to the Federal
Government. So right now the States have a choice.
Mr. Burton. I understand, but if the States don't comply
with the things they way you think they should, then you feel
the Federal Government should force them to do that?
Mr. Helmke. Well, actually, Carolyn McCarthy's bill, the
NICS Improvement Act, wouldn't be forcing them to.
Mr. Burton. What does it do? How do you enforce it if it
doesn't force the States to comply?
Ms. Thomas. If you don't mind, I don't think it is about
enforcing. In fact, I think there are issues as to whether it
could actually be enforced on the States. I don't believe that
is an approach that would be appropriate under the way that our
system operates under the tenth amendment. I do think that is
he is talking about, there are ways to encourage and give
incentives.
Mr. Burton. So you are talking about encouraging the
States. Well, I think the States right now, for the most part,
really want to keep the guns out of people's hands that
shouldn't have them. I don't know how this legislation is going
to improve that. You are just suggesting, we want you to do
better?
Ms. Thomas. There are financial incentives included in the
legislation that I believe would be----
Mr. Burton. OK, I want to get to that. Financial
incentives. So we are going to have the Federal Government in
effect mandating through financial incentives to the States to
do certain things?
Ms. Thomas. Paul, you can correct me if I am wrong. My
understanding is one of the things that the McCarthy Bill does
is to provide the financing that some of the States might need
in order to help them, to enable them to computerize records
and to bring some of these records up to speed.
Mr. Burton. OK. I think your goals are laudable. But let me
just tell you, in Indiana there have been incentives to create
more policemen. And the Federal Government has put money into
the program to create more policemen to cut the crime rate.
Then the Federal Government, after they hire the policemen,
a few years later, don't continue to comply and fund those
mandates. So you have a situation there where you get into this
thing, then you have the Federal Government who is supposed to
pay for these things as an incentive, then they drop the ball.
I want to tell you, that happens an awful lot. You being a
mayor, you know about unfunded mandates.
I don't have a lot of time, so I want to go into some other
questions. You said that there should be background checks, Mr.
Feinblatt, on people that are selling guns person to person,
right?
Mr. Feinblatt. No, I did not.
Mr. Burton. Explain that to me again.
Mr. Feinblatt. I did not discuss background checks,
Congressman.
Mr. Burton. You said people selling a gun to another
person.
Mr. Feinblatt. I didn't discuss that. The only thing that I
commented on today is the Tiahrt Amendment, which restricts law
enforcement.
Mr. Burton. I must have mis-understood.
Mr. Helmke. I talked about that.
Mr. Burton. I thought you said----
Mr. Feinblatt. I think it was Mr. Helmke.
Mr. Burton. Well, somebody, I thought it was you, said that
there should be background checks on a person to person basis,
is that right?
Mr. Helmke. As I indicated, the Brady background check
system isn't going to fully work if 40 percent of the sales of
guns aren't covered by the Brady background check system. If
the requirement was that private sales, if private sales were
covered, that if you got the unlicensed seller exception out of
the way, where people can go to a gun show, go to the desk that
is set up, say, I am an unlicensed dealer and therefore I can
sell you the guns without the background check, that would help
our system work.
Mr. Burton. The enforcement of that, I think, would be
virtually impossible. Because you get so many people who have
guns and so many people that sell them to other people or give
them to other people. Now, there is a liability statute, as I
understand it, that says if you give a gun or sell a gun to
somebody else and they commit a crime, you have a
responsibility and you can be sued. So I think we already have
a deterrent.
I want to ask one more question. I have a friend, and I
won't go into the details, he and his wife are getting
divorced. She was running around with another guy and he was
crushed. He has a couple of kids, and it is really a problem.
As a result, he wanted to make sure that he did the right
thing, so he went for counseling, went to a mental health
center for counseling. The counseling worked, he went to his
church, that worked. He is now in good shape and he is not any
threat to his wife or anybody else, because he has learned to
cope with it.
But the mental health record of this man would be a
deterrent for him getting a gun, would it not?
Mr. Helmke. No.
Mr. Burton. Why not? Because there will be a record of it,
won't there?
Mr. Helmke. No. As I indicated, it only deals, the Federal
law and the implementation of who is defined as a prohibited
purchaser only deals with someone who has been involuntarily
committed or someone who has been adjudicated by a court as a
danger to themselves or others because of mental illness. Going
for marital counseling, getting that sort of voluntary
treatment, therapy, medication, whatever, as long as you are
not in front of a judge or someone who has that official
capacity, then it doesn't show up in the records.
Mr. Burton. Brian and I were talking a minute ago, and he
may want to pursue this question further. Are the mental health
agencies in favor of what you are trying to do?
Mr. Helmke. They are represented here, I believe, with
another panel. We have been talking to them. We don't want a
stigma on mental health. We want people to go in for mental
health question.
Mr. Burton. That is not my question, Mr. Mayor. My question
is, the mental health organizations, are they in favor of what
you want?
Mr. Helmke. I can't speak for them. But I believe based on
our discussions that we can reach agreement here. They agree
that individuals that are a danger to themselves or others
because of mental illness should not be purchasing guns.
Mr. Burton. Thank you, Mr. Chairman.
Mr. Kucinich. I thank the gentleman.
The gentleman from California.
Mr. Bilbray. Thank you very much.
Mayor, seeing that we are stringing you out right now,
let's not interrupt the pace.
Mr. Helmke. I am used to it. [Laughter.]
Mr. Bilbray. I appreciate it. I was a mayor for 6 years.
When I started off, I was 27 years old. It was rather an
interesting situation to lead a city at that age that you had
grown into. Half of the staff and police chief used to change
my diapers before I was in there. [Laughter.]
But I would say, in fact, I remember, that was the day you
were in Cleveland. There were three of us, the new politicos.
Mr. Kucinich. We all have something in common here.
Mr. Bilbray. Ancient history.
Let's talk about the gun show issue. Mayor, when is the
last time you went to a gun show?
Mr. Helmke. Four years ago, I guess.
Mr. Bilbray. Now, you said 40 percent of the sales of guns
are not regulated at this time?
Mr. Helmke. It is estimated. Since we don't keep records on
that, it is just an estimate.
Mr. Bilbray. Is that 40 percent of what you are estimating,
is 40 percent are being sold through gun shows?
Mr. Helmke. It is not just gun shows. It is private sales.
So it could be gun shows, it could be classified ads, it could
be neighbor to neighbor.
Mr. Bilbray. What percentage do you think is being sold
through gun shows unregulated?
Mr. Helmke. I don't have any hard data on that.
Mr. Bilbray. What percentage of the gun shows sales do you
think is unregulated?
Mr. Helmke. The 40 percent figure, I am under oath here, so
I am just guessing at this stage. I have seen the 40 percent
figure. I have seen others who say that at gun shows maybe it
is 25 percent of the total sales or something like that.
Mr. Bilbray. Then, boy, it definitely is not the gun shows
that I have seen around. The fact is, I would challenge
anybody, and I have had the NRA attack me on positions, I have
had Brady support me on issues, but I think what we need to
keep grounded is, the overwhelming majority of people who are
engaged in gun shows are professionals who are licensed. Very
few, very few, and I guess in my mind I remember the son, the
12 year old son and the man selling the black powder rifle with
spare barrels, and I remember, because I don't shoot modern
firearms. I am exempt from all these rules. I can go buy my
musket and my cap and ball and get anything I want over the
counter.
But to imply that gun shows pose a major threat, when our
big exposure here, our big source of unsupervised purchases I
think doesn't reflect the fact that the overwhelming majority
of people at gun shows are licensed dealers who are functioning
under that vehicle.
Now, if we can just say, you guys want to take a shot at
that, I have some real problems with you eliminating the deal
that most of the people that are dealing, most firearms sold
under the gun show process is under some kind of regulatory
deal. Counter my argument if you want to.
Mr. Helmke. First of all, California does require
background checks at gun shows. So if you are going to gun
shows in California, yes, they do background checks, because
that is a State law and that has been effective in reducing the
amount of guns that get into the illegal market in California.
Mr. Bilbray. But the issue was not the background check. It
was the person, the regulations that were imposed on the people
that are actually selling the firearms.
Mr. Helmke. Right. In California, if you are an unlicensed
dealer, the way it works in California is, if you want to
purchase from the collector, they then take the form to the
licensed dealer who is in the booth next door, and for a $5 fee
or whatever, they run the instant check and come back with a
you are approved type of thing. So in effect, the so-called gun
show loophole has been closed in California and they do do the
background checks.
Mr. Bilbray. The point I was making, though, and Ms.
Thomas, if you want to go over it, you still are bound to this
issue that the overwhelming majority of people engaged in the
sale of firearms at gun shows are licensed dealers.
Mr. Helmke. Most are. And actually, part of the point,
though, even in the statistics, most of the licensed dealers do
a good job. It is only 1 percent of the dealers that contribute
60 percent of the guns.
Mr. Bilbray. My point was that the fact that the perception
that this is an unregulated, no oversight, that it is a great
majority of moms and pops giving the sales, and let me just
say, you have been a mayor. I would really ask you the
question: the ability of Government learning just not to over-
reach, the ability of taking a theory and making a practical
application, the ability for even a local government, let alone
a Federal Government, to regulate one on one sales between
individuals, and I give you an example. We don't do a very job
at regulating those who are buying and selling cars under the
law as a dealer, a car dealer. If we can't regulate the buying
and selling of cars under that, what makes you think we can do
it with firearms?
Mr. Helmke. But we still have laws dealing with the sale of
cars, and you still have the licenses and you still have the
process that it goes through, the State Bureau of Motor
Vehicles, whatever, to get the license transferred and collect
the sales tax.
Mr. Bilbray. Mr. Helmke, my point being, even with the laws
on the books, we admit that those of us in Government--the
crucial, huge problem to try to enforce the sale of
automobiles, something you are registering, something you are
putting on the street, something that is pretty big that you
are not going to put in a box and take home, if you are talking
about now something that can go into a box and be taken home, I
just want to raise the issue of what a huge, huge leap in
practical application we have to make here. That was just my
point.
Mr. Helmke. I think the whole point with this discussion of
guns is what we are doing now is not working. We need to find
things that just don't sound good in law but are actually going
to be effective. That is what I am trying to say. We make it
too easy for dangerous people to get the weapons.
Mr. Bilbray. And I am just saying, the big thing is what is
effective is more important than what sounds good.
Mr. Bilbray. I agree totally. I yield back.
Ms. Thomas. If I can just add one thing. As you mentioned,
if you are talking about federally licensed firearms dealers,
who are the ones at the gun shows, and if they are running
background checks, and if you are a law-abiding gun owner, you
know that the Federal instant background system is incredibly
quick and efficient. It is not very burdensome. It is something
that for people who know the rules and understand how the
system works, it is not a big deal to have this instant check
run before they get their guns. What it does is it takes the
difference between someone who should have a gun and is law-
abiding versus someone who shouldn't have a gun. We make sure
that person who is at the gun show just gets that instant check
run and we make sure they fill the category.
Mr. Bilbray. You miss my point. My point was perception
that this problem was a large portion of gun shows when in fact
it is a very small part of the problem within the gun shows,
because the overwhelming majority are already plugged into the
registration system.
Mr. Helmke. I did just get a clarification here. According
to an ATF report from 1999, they estimate that 25 to 50 percent
of gun show sellers are private parties.
Mr. Bilbray. I would totally disagree with that.
Mr. Helmke. I am just saying that is what the 1999 ATF data
is.
Mr. Bilbray. I would also point out that it is estimated
that 1 percent of criminal guns are acquired at gun shows.
Thank you, Mr. Chairman.
Mr. Kucinich. I thank the gentleman. We are going to go to
another round of questions here. Congressman Burton, can you
wait 5 minutes?
Mr. Burton. Sure.
Mr. Kucinich. We are just going to go to one more round of
questions. I would like to ask Mr. Helmke, if you have a fairly
informed, quantitative assessment you can give us at this
moment, fine. If you don't, I would like you to provide the
information to the committee with respect to the completeness
of this records on data related to prohibited persons with
respect to criminal conviction data. Can you tell us what
percent? And if you don't know, can you provide it?
Mr. Helmke. It is my understanding, I will double check
this and provide it. It is my understanding that in terms of
felony conviction records that it is pretty close to complete.
Mr. Kucinich. And mental health, you said 10 percent?
Mr. Helmke. With all other disqualifiers, mental health,
dishonorable discharges, restraining orders, outstanding
warrants, that it is just hit or miss, and 10 percent to 20
percent at best.
Mr. Kucinich. OK. I want to go to Mr. Feinblatt. Could you
tell me, why did New York City feel that it was necessary to
bring its lawsuit against the gun dealers, I think it was 27
gun dealers? Couldn't it just call up and request that the ATF
do something about the flow of illegal guns into your city?
Mr. Feinblatt. I think the problem is that the ATF is not
keeping up their end of the bargain. As you know, I think that
the Department of Justice in fact did a report that was issued,
I think in 2002, which said that the ATF inspected about 4\1/2\
percent of the firearm licensees nationwide. So that is about
4,500, 4,600 of the 104,000 FFLs. They found in those
inspections that in fact 42 percent of the inspected licensees
had violations. And we're not just talking about one violation.
What they found was on average, the licensees had 70 violations
each.
Nonetheless, in the face of data like that, the ATF revoked
or refused to renew only 2.8 percent of the licenses of dealers
with violations.
Mr. Kucinich. Well, wait a minute. Why didn't the ATF do
what you did, before bringing this suit, and that is, conduct
aggressive investigations to make sure that federally licensed
gun dealers are not breaking the law and allowing straw
purchases?
Mr. Feinblatt. Why does the ATF not do it? Because the ATF
is not committed to this as part of their mission. And there
are several reasons why.
Let me give you some disturbing evidence, which is even
more disturbing than the numbers. In this same report,
investigators interviewed ATF inspectors. What they found was
that 78 percent of the inspectors that were interviewed said
that when doing an inspection, they did not look for signs of
straw purchases whatsoever. Another 67 percent of the
inspectors said that they rarely referred information gathered
during an inspection for criminal investigation by the ATF,
because they actually didn't believe that the ATF would
followup.
So what we have now is a culture within the ATF that isn't
taking their mission seriously.
Now, let me tell you, it is not just the ATF. Congress
hasn't made it any easier. As you know, Congress has in some
ways tied the hands of the ATF. It has restricted inspections
of dealers to once per year. It has required licensed dealers,
it has prevented ATF from requiring licensed dealers to
physically check their inventory against their records. It has
prevented ATF from revoking a license until all legal means are
exhausted, which can take years, even if they find that a
dealer has been convicted of a felony.
So I think that what we have is a culture of lax
enforcement within the ATF, and I think that Congress has
abetted that and aided that.
Mr. Kucinich. And you are saying that with respect to the
Tiahrt Amendment, for example, is that right?
Mr. Feinblatt. I am saying that in effect to the
restrictions that we placed on ATF, and the fact that the
restrictions that we placed on local law enforcement getting
information about crime gun trace data is just one more example
of trying to shield the gun industry.
Mr. Kucinich. With the Tiahrt Amendment in effect, could
you now obtain the type of trace data that you have used from
the ATF and use it in a civil suit?
Mr. Feinblatt. Absolutely not. Don't even think about a
civil suit. At least 20 States in the country have State
licensing regulations, trace data is not admissible in those
State regulatory hearings. So what you have is the Federal
Government basically stopping the dam of information.
Mr. Kucinich. Let's go then to the consent decree that New
York worked out about the monitoring that went on, that the
dealers settled with New York about. You had a consent decree,
the dealers said, look, we are going to settle up with you, New
York. What happened with that?
Mr. Feinblatt. What we did was, we sued 27 dealers from
five States. Already 12 of them, nearly half, have settled with
the city of New York. We haven't looked to put anybody behind
bars. That isn't our goal. We haven't looked to put anybody out
of business. That certainly is not our goal.
What the settlements require is that a special master be
appointed to oversee the business with the cooperation of the
FFL for a period of 3 years. If there are continued violations
of Federal, State or local laws, the special master has the
right to impose a penalty and if there are violations, the 3-
year clock resets.
Mr. Kucinich. Just one final question before we go back to
Mr. Burton, and that is from a policy standpoint, would you
tell this committee what benefits New York City was able to
achieve in entering into this consent decree?
Mr. Feinblatt. The basics of law enforcement are trying to
define who the bad guys are. Most dealers are good, honest
businesspeople. ATF tells us that only about 1 percent of the
dealers are responsible for 50 percent of the crime guns.
But what trace data does is it actually pinpoints who are
the people who are breaking the law. What New York has tried to
do is use that trace data to actually pinpoint in a very
precise way who is breaking the law and then come to some
agreement with them. That is what our goal is. Our goal isn't
to interfere with legal dealers. Our goal isn't to question the
right of people to have guns. Our goal is plain and simple, it
is to enforce the law.
Mr. Kucinich. So the Federal Government kind of responded
to this investigation and lawsuit and consent decree in a
favorable way? Did ATF say, hey, New York, we have something to
learn from you?
Mr. Feinblatt. Absolutely not. What the Federal Government
did was threaten New York City, just like----
Mr. Kucinich. What do you mean, threaten?
Mr. Feinblatt. Basically wrote a letter to the city of New
York saying that, under certain circumstances, if you continue
enforcing the law, mind you, you could be subject to criminal
penalties.
But what is so telling here is that we have a pattern. The
White House, the FOP and Department of Justice has now recently
taken the Tiahrt Amendment one step further. What they are now
suggesting is that every single police officer, every rank and
file police officer who wants to trace a gun, the basic thing
that you want to do if you are trying to catch criminals and
put them away, or try to catch traffickers, is to get data.
What they have said is that every police officer needs to
certify the purposes for seeking the trace data and if those
purposes are broader than the investigation of one gun at a
time, that somebody is liable to go to prison for 5 years.
The real question is, who does that help and who does that
hurt. That only helps one people, criminals. Who does it hurt?
It hurts law enforcement. There is a basic choice here. Who do
you want to protect? Do you want to protect cops or do you want
to protect criminals? The city of New York wants to protect
cops. It seems that the White House, the Justice Department and
the ATF, by making the rank and file police officer certify the
purposes for the request of data and threatening them with
jail, wants to really hurt cops and help criminals.
What is so striking about this amendment is just 1 year
ago, the Department of Justice itself, when considering the
idea of having police officers face criminal penalties for
doing their job, wrote to Congress that this would have a
chilling effect, it would be deleterious to law enforcement, it
would chill police officers from doing their job by requesting
key data and by sharing key data.
Mr. Kucinich. I thank the gentleman. Whatever you have that
you would like to submit for the record on that, I would
appreciate it. This has gone on about, more than 9 minutes, so
I just want to say to Mr. Burton and Mr. Bilbray, if each of
you would like to consume 9 minutes, you are entitled to that
each.
Mr. Burton. First of all, let me just say that people who
don't agree with you do support law enforcement and policemen.
The implication of some of your remarks were that the people
who don't agree with you aren't caring enough about the police.
I don't think that is true. A lot of police officers around
this country don't agree with the position you have taken. I
don't know the percentage, but I am sure there are a lot of
them.
How many guns are there in America? Do you know?
Mr. Feinblatt. I do not know. Mr. Helmke probably has that
figure on the tip of his tongue.
Mr. Helmke. There are estimates of around 200 million.
Mr. Burton. Two hundred million.
Ms. Thomas. More than that.
Mr. Burton. You are going to keep track of 200 million
guns? What you are talking about, Mayor Helmke, is that if
there is a sale from one individual from another individual,
there ought to be a background check. Two hundred million guns.
You have to be joking.
Mr. Helmke. We are awash with guns in this country. That is
part of the problem.
Mr. Burton. And to start creating a bureaucracy and making
law-abiding citizens criminals if they sell a gun to some other
law-abiding citizen, it doesn't make any sense to me.
Mr. Helmke. How do they know they are a law-abiding citizen
if they don't do a background check before they sell it. That
is the problem. Most of the people aren't selling their guns. A
lot are collections, a lot are handed down from their family, a
lot they use. Many people who own have a lot of guns. While
there are that many guns out there, there are also estimates
that only 25 percent of the households have a gun, too, I think
is the figure. So those guns are basically----
Mr. Burton. You said 25 percent of the households. Where
did you get that figure?
Mr. Helmke. I think that is----
Ms. Thomas. I think some of that is through the Department
of Justice, they come out with reports. I think it might be
cited in our testimony if you take a look.
Mr. Burton. But it is an estimate?
Ms. Thomas. Yes, it is an estimate. Because there is no
system of registration of guns in this country right now. So
all of this data is generally collected through estimates in
the numbers that we do have.
Mr. Burton. Let me ask you a question. You just said there
is no registration in this country right now. Are you
advocating registration of guns?
Ms. Thomas. I certainly think there are ways to go about it
that are feasible. I think that some kind of registration
system, like we have for cars in this country, would certainly
be helpful in knowing how many we have, knowing where they are
and being able to understand a little better what the issue is.
Mr. Burton. Let me just tell you, there are an awful lot of
people, there are 200 million guns out there, there are an
awful lot of people that are concerned about the second
amendment and their constitutional rights. They are afraid if
you register all guns, at some point in the future there may be
a tyrannical government that uses the registration of those
guns to disarm everybody in this country in violation of the
second amendment. I see you shaking your head back there. It is
a fact. People are concerned about that.
Ms. Thomas. I absolutely hear what you are saying, and
certainly a discussion of the second amendment is a very
interesting legal argument. I would hold that the Supreme Court
of this country, in the 200 cases that have come since Miller
in 1939, have held that the second amendment is not a bar to
sensible, sane, common-sense gun regulation, that those laws,
things like background checks, have been upheld hundreds of
times by the courts of this country.
So the second amendment, with all respect, is not a
prohibition on common sense gun regulations that would save
lives.
Mr. Burton. In the sense of gun regulations, I agree with
you. But you are talking about registration, and that is a
different subject. I am certainly not for that.
Mr. Chairman, I don't think you need to ask any more
questions.
Mr. Feinblatt. Congressman, may I just respond to the
comment you made? This is not an issue of whether you disagree
with one position or don't agree with another, whether you are
for cops or against cops. This is really an issue of whether
you are going to threaten cops with imprisonment for doing
their job. That is actually what the Justice Department, the
White House and the ATF are now calling for by requiring police
officers to certify. Everybody in the law enforcement world
just about sees this issue for what it is. That is why 10
national law enforcement organizations oppose the Tiahrt
Amendment. It is why over 20 State and regional law enforcement
organizations oppose the Tiahrt Amendment. It is why over 175
police chiefs from around the country oppose the Tiahrt
Amendment. And it is why 225 mayors, Republicans, Democrats and
Independents, oppose the Tiahrt Amendment. They want cops to do
their job.
Mr. Burton. How many police chiefs are there in America?
Mr. Feinblatt. There are obviously many----
Mr. Burton. Well, how many?
Mr. Feinblatt. I don't have the number.
Mr. Burton. You said 175 police chiefs. I would just like
to know what percentage of the----
Mr. Feinblatt. I don't have the percent, but I would be
delighted to give that to you.
Mr. Burton. I was just given a note from my staff here. It
says, both the BATFE and the Fraternal Order of Police oppose
release of trace data.
Mr. Feinblatt. It is true. The FOP----
Mr. Burton. But you didn't say that, though. You just cited
a bunch of people that oppose you and a bunch of groups that
oppose you. Don't you think it is important also to say how
many support the other side?
Mr. Feinblatt. There is one police organization in this
country that supports the Tiahrt Amendment. A single police
organization. Stack that against 10 national police
organizations, 22 State and regional organizations, 175--it is
a lone voice.
Mr. Burton. What is that lone voice, the Fraternal Order of
Police?
Mr. Feinblatt. It is the Fraternal Order of Police. But----
Mr. Burton. The Fraternal Order of Police, the majority of
the policemen in this country are members of the Fraternal
Order of Police.
Mr. Feinblatt. Yes, except that----
Mr. Burton. You're saying one organization. But that is the
majority of the policemen in this country. And the BATFE also
opposes it.
Mr. Feinblatt. The Fraternal Order of Police doesn't speak
with one voice. I would refer you to this letter from the
Illinois, for instance, Fraternal Order of Police, which
constitutes 10 percent of the entire membership of the
Fraternal Order of Police.
Mr. Kucinich. Without objection, we will enter that into
the record.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] 35771.064
[GRAPHIC] [TIFF OMITTED] 35771.065
[GRAPHIC] [TIFF OMITTED] 35771.066
Mr. Burton. That is fine. What about the other 90 percent?
Mr. Feinblatt. They are on record absolutely opposing it.
Mr. Burton. What about the other 90 percent?
Mr. Feinblatt. They are not alone, and I think that you
will see many----
Mr. Burton. What about the other 90 percent? You just said
10 percent. What about the other 90 percent?
Mr. Feinblatt. With all due respect, one organization, the
Fraternal Order of Police, which has basically taken the
position that the reason why the Tiahrt Amendment is a good
thing is this. They have said that it does two things. It
protects dealers from harassment. While 85 percent of dealers
in this country have absolutely no traces, 1 percent of the
dealers account for nearly 60 percent of the traces.
Every police organization that represents chiefs, who look
at crime on a macro level, not on a one at a time level,
opposes it. So what is the other reason that the FOP says that
we shouldn't release trace data? They say, well, it could
expose undercover operations.
However, when the ATF and the FOP have been asked, under
oath, whether they can give one single example in Federal court
of an instance where an undercover operation was compromised,
they were unable to do it. When Todd Tiahrt was asked whether
he can give one single example of an undercover operation that
has been compromised, he has been able to do it.
In fact, the real reason that we have the Tiahrt Amendment,
I think we can find by looking at the Washington Post from July
21, 2003, when Todd Tiahrt was asked why he put in the Tiahrt
Amendment----
Mr. Burton. I am not asking you about Todd Tiahrt. I am not
asking that question.
Mr. Feinblatt. Sir, the FOP supports Todd Tiahrt. We are
talking about the FOP.
Mr. Burton. No, no, no, no. Just the----
Mr. Feinblatt. The reason that they are supporting the
Tiahrt Amendments is because ``I wanted to make sure I was
fulfilling the needs of my friends who are firearms dealers,
and the NRA officials said they were helpful in making sure I
had my bases covered.'' What we have here is another example of
Congress bending over backward----
Mr. Burton. All right. You just go on and on and on.
Mr. Feinblatt [continuing]. To protect the gun industry.
Mr. Burton. You have made your point. Let me just say this
to you, or ask you this question. How many people are in the
FOP around the country?
Mr. Feinblatt. Several hundred thousand, about 300,000, I
think.
Mr. Burton. And how many oppose the Tiahrt Amendment and
take your position?
Mr. Feinblatt. There are many States, there are States that
are fractured----
Mr. Burton. How many?
Mr. Feinblatt. I don't have that answer.
Mr. Burton. You should.
Mr. Feinblatt. Why should I? I can tell you this.
Mr. Burton. Because you are making categorical statements
that can't be verified.
Mr. Feinblatt. I am not making a categorical statement. One
police organization opposes it, and 10 nationals, 1 police
organization supports it, 10 nationals oppose it, 22 State and
regionals oppose it, 175 police chiefs. I do addition that way.
Mr. Burton. The FOP represents more than all of those you
named. Combined. That is it. I have no more questions.
Mr. Kucinich. I want to thank the gentleman from Indiana. I
want to ask the witness if you could provide this committee
with the qualification and the quantification of the various
groups that have taken positions on this that you offer to this
committee as proof of the position that you hold.
Mr. Feinblatt. Absolutely.
Mr. Kucinich. We would appreciate it very much.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] 35771.067
[GRAPHIC] [TIFF OMITTED] 35771.068
[GRAPHIC] [TIFF OMITTED] 35771.069
[GRAPHIC] [TIFF OMITTED] 35771.070
[GRAPHIC] [TIFF OMITTED] 35771.071
[GRAPHIC] [TIFF OMITTED] 35771.072
[GRAPHIC] [TIFF OMITTED] 35771.073
[GRAPHIC] [TIFF OMITTED] 35771.074
[GRAPHIC] [TIFF OMITTED] 35771.075
[GRAPHIC] [TIFF OMITTED] 35771.076
[GRAPHIC] [TIFF OMITTED] 35771.077
[GRAPHIC] [TIFF OMITTED] 35771.078
Mr. Kucinich. Also without objection, the Washington Post
article that you mentioned, if it could be included in the
record, and the letter from the Illinois FOP, if it could be
included in the record. Without objection.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] 35771.079
[GRAPHIC] [TIFF OMITTED] 35771.080
Mr. Kucinich. Mr. Bilbray, you have 9 minutes.
Mr. Bilbray. Thank you, Mr. Chairman. I hope to not use it
all up.
I would first of all like to thank Ms. Thomas. I think too
often we don't talk about where we really want to go with these
issues. Ms. Thomas, I think it might have been a slip of the
tongue, but you indicated you really would like to see national
registration of all firearms within the Nation.
My question to you though, is, you made a comment about
registering motor vehicles. What State requires that you must
register a car to own a car?
Ms. Thomas. I believe the State of California does. You and
I are both from California and I believe I registered my car,
and that is because I had to. When a police officer pulls me
over and they ask me for my registration, I believe I need to
provide that.
Mr. Bilbray. Ma'am, let me clarify. Are we not required to
register a car simply to own a car? You are required to
register a car to operate that car on a public right of way.
Ownership of a motor vehicle, motorcycle, car, tractor,
whatever, is not regulated by the State for ownership. It is
regulated for use on public right of ways.
So there is a distinct difference here, when we talk about
this, that from now on, I am just saying as a local government
guy, there is a huge difference, and I think now if you think
about it, if you own a motorcycle that is just going to be used
off-road, you don't have a registration, right? You don't have
to license it then. But if you use it on the road, there is a
distinct difference. I would use, a fair comparison would be
the fact that we do register and permit those who want to carry
a firearm, loaded, in the public. So there is a distinct
difference.
So in the future, I hope that when you bring this up, you
think about the fact that to drive a car on California roads,
you are required to register it. But mere ownership is not a
registration.
Ms. Thomas. I brought that up as an example of ways in
which we as a society have balanced the rights of the
individual against the risk to society. We take steps in order
to ensure that there are safety provisions, preventive safety
provisions and tracking in place. Certainly, I trust you are
100 percent about car registrations.
Mr. Bilbray. From now on, there was a mis-speak there, to
own a car, you don't have to have it registered, to drive it on
a public street, you do, though.
Ms. Thomas. If you say so, then I am sure you are correct.
Mr. Helmke. In Indiana, it is a little bit different. If it
is an operable vehicle, you do need to have it licensed and
registered. There are distinctions.
Mr. Bilbray. Usually, it is because, specifically on a tax
purpose, there is a personal property tax, and that is used to
levy a tax.
Mr. Helmke. I know in Indiana the concern is abandoned
vehicles, too, on the streets that are inoperable.
Mr. Bilbray. Junk. And there you come back to--John, your
city sued the car, I mean, the manufacturers of the firearms,
because the ATF was not enforcing the law?
Mr. Feinblatt. What I was referring to, no, is gun dealers.
New York City, along with many other cities, does have a suit
against manufacturers. However, what I referred to in my
testimony and the discussion here today was a suit against 27
gun dealers in five States.
Mr. Bilbray. In five States?
Mr. Feinblatt. In five States.
Mr. Bilbray. And you have other activities against those
who manufacture?
Mr. Feinblatt. We do have a pending suit against
manufacturers that requires them to conduct basically a code of
conduct which will require them to take notice of dealers who
have high traces and continue to sell illegally.
Mr. Bilbray. Are they violating the ATF regulations?
Mr. Feinblatt. The dealers, which is the suit I talked
about, are absolutely violating them.
Mr. Bilbray. OK, you said you are suing them because ATF is
not doing the work. I am talking about the lawsuits against gun
dealers.
Mr. Feinblatt. We are suing them, what we are actually
suing the dealers for is violating the law. All we are trying
to do is enforce the law.
Mr. Bilbray. OK, you have one group that are the dealers
you are suing because they are violating the law. Are the gun
manufacturers violating the law?
Mr. Feinblatt. The gun manufacturers is a completely
different type of suit. It is a suit where we are basically
calling upon them to take notice of illegal sales practices and
just adopt a code of conduct. But when you talk about the
dealers, what we are suing is 27 dealers who flagrantly sold
guns to straw purchasers. They are on tape, caught red-handed.
What we are only asking for is to enforce the law. That is all
that we want to do. Most gun dealers play by the rules. Most
gun dealers are absolutely honest. But breaking the law----
Mr. Bilbray. Getting back to this issue, though, you have
two sets of lawsuits now and you are willing to defend one
based on the fact that they are violating the law. I went back
and said you had another one----
Mr. Feinblatt. I agreed.
Mr. Bilbray. You are suing them because they make guns or
because they are breaking the law?
Mr. Feinblatt. We are suing them because they are not
taking notice, it is a civil suit and they have a
responsibility, it is a negligence action based on the fact
that they continue to supply guns to dealers who are breaking
the law.
Mr. Bilbray. Do you have that kind of lawsuit to the
manufacturers of alcoholic beverages?
Mr. Feinblatt. We actually do, certainly----
Mr. Bilbray. Beer, wine?
Mr. Feinblatt [continuing]. Sting operations all the time--
--
Mr. Bilbray. I meant the manufacturers, the national
manufacturers of alcohol, as opposed to----
Mr. Feinblatt. No, we don't, but there is a big difference,
which is, the manufacturers actually know who are the illegal
gun dealers.
Mr. Bilbray. Oh, so they do, so they are breaking the law,
you are saying?
Mr. Feinblatt. No. What I am saying is they are on notice.
I don't believe the manufacturers of Camel cigarettes knows
when the corner bodega sells illegally to a minor. But there is
no question----
Mr. Bilbray. So you are saying, I thought you said that the
gun dealers weren't breaking the law. Now you are saying they
are, they are knowingly breaking the law?
Mr. Feinblatt. The gun dealers are without a doubt breaking
the law.
Mr. Bilbray. No, but I meant the gun manufacturers.
Mr. Feinblatt. I said that the gun manufacturers are on
notice that they continue to supply to dealers that are
breaking the law. All we are seeking in that manufacturing
suit, along with many other cities who have brought similar
suits, is that they stop selling to those.
Mr. Bilbray. Is it against the law for them to make those
sales?
Mr. Feinblatt. It is a, I think that it creates a nuisance,
it creates a civil nuisance and that is a colorable claim under
law.
Mr. Bilbray. OK, that's why you are going civil, as a
nuisance.
Mr. Feinblatt. We are talking about civil cases,
absolutely.
Mr. Bilbray. I would ask, you are a high ranking individual
in law enforcement, or in the city. Is New York City a
sanctuary city for illegal immigrants?
Mr. Feinblatt. Absolutely not. And I am not sure what
relevance it has to today's testimony.
Mr. Bilbray. The activity of information sharing, the
activity of focusing on certain deals, city of New York in the
past has had major problems. I don't know what your status at
this time. But we have had open discussion about not having law
enforcement cooperate with Federal law enforcement, not sharing
information with Federal law enforcement over on one side. I
just feel it is really inconsistent for the city of New York,
who has in the past said, we are not going to participate with
the Federal Government on this issue, because we are worried
about privacy, we are worried about individual rights, we are
worried about violation of some, a segment of our population
because it is so important to protect these individual rights
and this privacy, and then on another issue for the same city
to say, it is ridiculous to worry about those, not sharing
information, it is ridiculous to worry about the privacy and
moving it over. I just have to say, John, I really see an
inconsistency with the history.
Mr. Feinblatt. There would be an inconsistency if it were
true, Congressman. However, let me tell you, because in fact I
have testified before Congress on this very issue. It is
certainly our policy to notify people when there have been
criminal convictions.
The problem is, actually that the INS has, makes it
extremely difficult to make these reports. In fact, I wish I
had a document from the INS which basically goes through step
by step what instructions to INS officials, what they are to do
when they receive a call from a local. And let me paraphrase
it, since I don't have it in front of me. The instructions go
something like this: if you get a phone call from a local law
enforcement agency trying to report that a person who is
undocumented has committed a crime, tell the caller that you
should now write a letter. If they then follow that up and
write a letter, rather than making a phone call as instructed,
you should then instruct them to have their supervisor write a
letter. If they then write a letter according, if the
supervisor then writes a letter, advising of the conviction or
the arrest of somebody, you should then, and I can't remember
the next steps of it, provide documentation.
So the problem really is that the INS has historically, and
I want to be truthful, I don't know whether this has been
changed, but historically has made it extraordinarily difficult
for locals to do it. Because in fact, the INS has not wanted to
enforce these laws.
Mr. Bilbray. Well, I appreciate that concern and the
history of a previous administration, at least, and I would be
interested to see what this administration looks at,
cooperation with the Federal Government or specific direction
to law enforcement, that unless somebody has committed other
crimes, that individuals who are illegally present in the
United States would not be apprehended or engaged by New York
law enforcement.
My biggest point is this. The privacy issue needs to be
addressed on both sides. But the consistency of law enforcement
to say, one issue we are going to be engaged in lawsuits and
litigation on the other side, we are basically going to be
saying, unless one of our city laws are broken or State laws
are broken, we are not going to be engaged.
Mr. Kucinich. The gentleman's time has expired.
Mr. Feinblatt. Let me just respond.
Mr. Kucinich. The gentleman's time has expired.
Mr. Feinblatt. Gun trace data----
Mr. Kucinich. Sir?
Mr. Feinblatt [continuing]. Only has crime data in it. So
the only privacy that it is actually protecting is criminals.
Mr. Kucinich. The witness is out of order. Actually, the
gentleman's time has expired. I appreciate your presence here,
but I would just appreciate your following the decorum of this
committee.
Mr. Burton. Mr. Chairman.
Mr. Kucinich. The gentleman's time has expired. I want to
thank this panel for its presence.
Mr. Burton. Can I submit something for the record?
Mr. Kucinich. The gentleman certainly can, without
objection.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] 35771.081
[GRAPHIC] [TIFF OMITTED] 35771.082
[GRAPHIC] [TIFF OMITTED] 35771.083
[GRAPHIC] [TIFF OMITTED] 35771.084
[GRAPHIC] [TIFF OMITTED] 35771.085
Mr. Kucinich. All Members will have 5 days to submit
testimony. I want to thank each of the witnesses for being
here. Your presence is very much appreciated and I am grateful
for the testimony which you have brought to this committee.
This is the opening of a much longer discussion and your
presence has helped to ensure that we were able to make a
positive beginning. So I am going to dismiss the first panel
and ask for the second panel to be ready.
We are now going to move to our second panel of witnesses
on this Domestic Policy Subcommittee hearing entitled, ``Lethal
Loopholes: Deficiencies in State and Federal Gun Purchase
Laws.'' I would now ask the witnesses to, first I will
introduce them.
We have Rachel Brand. Rachel Brand was confirmed as
Assistant Attorney General for the Office of Legal Policy of
the U.S. Department of Justice on July 28, 2005. In her
position, she manages the development of a variety of civil and
criminal policy initiatives, the creation of departmental
regulations and the Department's role in the confirmation of
the President's judicial nominees. Her office also oversees
legal policy for the ATF and the FBI.
Before her current appointment, Ms. Brand worked in the
Office of Legal Policy principally on terrorism issues; served
as an associate counsel to the President and clerked for
Supreme Court Justice Anthony Kennedy.
In addition to Ms. Brand, the Department of Justice has
made Steve Rubenstein, the ATF's Chief Counsel, available to
sit at the witness table and respond to any questions Members
may have regarding the ATF's role in enforcing firearms law,
including the Brady Act. Stephen Rubenstein was appointed Chief
Counsel of ATF on September 29, 2003. He serves as the
principal legal advisor to the ATF's director and oversees
legal services related to, among other laws, Federal firearms
and explosives laws.
His office provides technical assistance to congressional
committees in legislative drafting sessions; makes
recommendations to the Department of Justice concerning
litigation and furnishes legal advice and assistance to other
Federal, State and local agencies including the U.S. attorneys
and Justice Department officials in the prosecution of ATF
cases. Prior to becoming Chief Counsel, Mr. Rubenstein held the
position of Associate Chief Counsel for 5 years.
It is the policy of this subcommittee and also of our full
committee, the Committee on Oversight and Government Reform, to
swear in all witnesses before they testify. I would ask that
the witnesses rise, raise your right hands.
[Witnesses sworn.]
Mr. Kucinich. Thank you. Let the record reflect that the
witnesses answered in the affirmative.
As in panel one, I ask our witnesses to give an oral
summary of their testimony. Keep the summary under 5 minutes in
duration. I want you to keep in mind that your complete written
statement will be included in the hearing record. Ms. Brand,
you may begin your testimony.
STATEMENT OF RACHEL L. BRAND, ASSISTANT ATTORNEY GENERAL FOR
LEGAL POLICY, DEPARTMENT OF JUSTICE, ACCOMPANIED BY STEPHEN R.
RUBENSTEIN, CHIEF COUNSEL, BUREAU OF ALCOHOL, TOBACCO, FIREARMS
AND EXPLOSIVES
Ms. Brand. Thank you, Chairman Kucinich, Congressman
Burton. I appreciate the opportunity today to talk about the
National Institute Criminal Background Check System [NICS]. The
Brady Act required the Attorney General to establish a system
that gun dealers can contact to determine whether a prospective
gun purchaser is prohibited under Federal or State law from
buying a gun. The NICS is that system.
The NICS has had a significant impact in preventing
prohibited persons from buying guns from gun dealers. Since
1998, as you mentioned earlier, chairman, over 75 million
background checks have been processed by the NICS. Those checks
have denied about 1.1 million gun transfers to persons
prohibited from possessing firearms.
The NICS has also gone a long way toward fulfilling the
Brady Act's requirement that background checks be completed
promptly, so that lawful purchasers can buy a firearm without
unreasonable delay. Currently, 92 percent of NICS checks are
completed during the initial phone call, usually within a
minute. Ninety-five percent of all checks are completed within
2 hours.
The NICS is a computerized system that queries several
national data bases simultaneously, including what we call the
III, which is a data base of criminal history records, the
NCIC, which includes among other things records of protection
orders and wanted persons, and the NICS index itself, which
includes other records that are relevant specifically to gun
background checks.
The effectiveness of the NICS in preventing gun transfers
to prohibited persons depends directly upon the availability of
records to the system. Although the Brady Act requires Federal
agencies to provide the NICS upon the Attorney General's
request with information about those who are prohibited from
buying firearms. States are not required to provide any
information to the NICS. So to the extent that they do so, they
do so voluntarily.
To improve the availability of State records of the NICS,
NCIC and III, the Brady Act established the NCHIP Federal
funding program, which since 1995, has awarded over $500
million to the States. With the help of NCHIP, the States have
come a long way in increasing the automation and accessibility
of records to the Federal data bases.
In addition to providing funding to the States, the FBI and
ATF have worked tirelessly since the inception of the NICS to
encourage States to provide more records to the system. This
outreach has included education of State officials about the
NICS and about the contours and parameters of the Federal
firearms prohibitors and given technical support to State
agencies that hold the records.
Specifically relevant to the Virginia Tech tragedy, both
the ATF and FBI have done outreach and provided education to
States and encouragement to provide more mental health records
to the NICS system. One of the most recent examples of that is
a letter sent yesterday by ATF to all the States, explaining
the Federal mental health prohibitor and offering to help the
States determine whether their records meet the Federal
standard. If we have not already provided you with a copy of
that letter, we will do so after the hearing.
ATF also plans to amend its Form 4473, which is the form
that the person fills out when they go to a gun dealer to buy a
gun, to provide more information to the prospective buyers
about the parameters of the mental health disqualifier.
Despite the Department's efforts and the tremendous
progress that has been made in improving the completeness of
records available to the NICS, there are still significant
shortcomings in the system. They include, for example, the fact
that about half of III arrest records are missing final
dispositions, and the fact that fewer than half of the States
provide any mental health records to the NICS, even though
States that do provide records, only a handful of those provide
any significant number of mental health records to the NICS.
We are continuing our efforts to encourage the States to
provide more information to the NICS and several States are
actively engaged in changing their law or in taking other
efforts to provide more information to the NICS.
So I appreciate the opportunity to testify today. I would
like to note that Federal firearms prosecutions are one of the
Department's top priorities. We take that very seriously
through Project Safe Neighborhood. I would note that since
fiscal year 2001, when Project Safe Neighborhood was stood up,
we have charged over 71,000 defendants with gun charges. The
number of gun prosecutions starting in the 6-years from fiscal
year 2001 to fiscal year 2006 is more than twice the number of
Federal gun prosecutions that was brought in the previous 6
year period. So I want the committee to know that we take
enforcement of the gun laws very seriously.
Thank you very much, and I would be happy to answer your
questions.
[The prepared statement of Ms. Brand follows:]
[GRAPHIC] [TIFF OMITTED] 35771.086
[GRAPHIC] [TIFF OMITTED] 35771.087
[GRAPHIC] [TIFF OMITTED] 35771.088
[GRAPHIC] [TIFF OMITTED] 35771.089
[GRAPHIC] [TIFF OMITTED] 35771.090
[GRAPHIC] [TIFF OMITTED] 35771.091
[GRAPHIC] [TIFF OMITTED] 35771.092
[GRAPHIC] [TIFF OMITTED] 35771.093
[GRAPHIC] [TIFF OMITTED] 35771.094
[GRAPHIC] [TIFF OMITTED] 35771.095
[GRAPHIC] [TIFF OMITTED] 35771.096
[GRAPHIC] [TIFF OMITTED] 35771.097
[GRAPHIC] [TIFF OMITTED] 35771.098
[GRAPHIC] [TIFF OMITTED] 35771.099
[GRAPHIC] [TIFF OMITTED] 35771.100
[GRAPHIC] [TIFF OMITTED] 35771.101
[GRAPHIC] [TIFF OMITTED] 35771.102
[GRAPHIC] [TIFF OMITTED] 35771.103
Mr. Kucinich. I thank the gentlelady.
Mr. Rubenstein.
Mr. Rubenstein. I am happy to be here and would be happy to
answer any questions.
Mr. Kucinich. You are going to be here just to answer any
questions?
Mr. Rubenstein. Yes.
Mr. Kucinich. OK. Thank you very much.
Ms. Brand, in your written testimony, you have outlined the
amount of data submitted into NICS. But what is particularly
important to establish here is how much data NICS would contain
if the data base were complete and consequently, how much data
is still missing. It is kind of a continuation of the
discussion from the last panel. That is what I had asked your
staff to prepare for this hearing. I am disappointed that it
hasn't been produced yet. Do you have it now?
Ms. Brand. Are you asking how many records exist, for
example, in mental health that we do not have? Is that what you
are asking?
Mr. Kucinich. I am asking, how much data is missing from
your data base?
Ms. Brand. It is really impossible for us to know that, to
take the mental health disqualifier, for example, as was
discussed in the first panel, under Federal law, a person is
prohibited from possessing or purchasing a gun if they have
been adjudicated by a court or other government agency as a
danger to themselves or others as a result of mental illness,
or if they have been involuntarily committed.
We at the Federal level have no way of knowing how many
such persons are out there. In some States, it would be
difficult for the State even to know right now, because most of
those adjudications, or many of those adjudications, will be
made by State courts in all the different counties around the
State, with no centralized----
Mr. Kucinich. So what is the completeness of your data
base, then, at NICS?
Ms. Brand. We know that very few States provide significant
numbers of mental health records to the NICS, and so we know
that it is substantially incomplete. We just don't know the
number, the total number that might be out there.
Mr. Kucinich. I will get more specific. Let's say including
all the Federal prohibited persons categories, what is the
percentage of data that has been entered into the NICS data
base in a form that can be used in the Brady background check?
Ms. Brand. The best data that we have concerns criminal
dispositions. My written testimony does provide a little bit
more detail on that. We think about three out of four criminal
records are available to the NICS, so about 75 percent
available to the NICS in some form. The main problem with
criminal history records is that although the arrest record may
go into the III at the beginning, less than half of those
records have a final disposition in the system. So if someone
who had been arrested goes to buy a gun, then NICS may see in
the system that there was an arrest, but have no idea whether
the person was actually convicted. Simply being arrested
doesn't prohibit one from buying a firearm. Having been
convicted of certain crimes does. So then the NICS system would
have to go and contact the State to find out what the final
disposition was.
Mr. Kucinich. How deficient is that, then, with respect to
State reporting? Let's talk about criminal history.
Ms. Brand. We think three out of four criminal records are
in the system in some form, but only about 44 percent of those
have final dispositions.
Mr. Kucinich. What about mental health?
Ms. Brand. We don't know what the total universe of mental
health records is, so we are unable to know.
Mr. Kucinich. What do you have in terms of the data base?
Do you have anything?
Ms. Brand. We know the total number of records that we
have. We know how many States provide any records, which is 22
States provide any records. But many of those States have only
provided maybe one or two records ever to the system.
Mr. Kucinich. So you are saying that data base, as far as
with respect to mental health reporting, wouldn't be----
Ms. Brand. Is very incomplete.
Mr. Kucinich. Right. What about domestic violence records?
Ms. Brand. Well, domestic, if you are talking about
misdemeanor crimes of domestic violence, we believe that many
of those are in the system. The difficulty there, though, is
that they would be provided to the III as an assault charge,
maybe. But the State wouldn't flag it, necessarily, as a crime
of domestic violence. So when a person goes to buy a gun, the
NICS would have to take a look at the record and try to then
contact the State and go behind it and figure out whether it
was a crime of domestic violence or not.
Mr. Kucinich. Excluding domestic violence convictions, what
percentage of conviction data that are relevant to the
prohibited persons have been submitted by the Federal
Government and the States to the NICS data base?
Ms. Brand. The best information I have is that we have
three out of four criminal records. I believe that includes
both Federal and State. Yes.
Mr. Kucinich. In your written testimony, you state that
fully one half of disposition data, that is data regarding
whether an individual charged with a crime was ultimately
convicted, is not currently in that NICS data base. So taking
the deficiency of disposition data into account, I would like
to see if you want to revisit your estimate.
Ms. Brand. I am not sure I want to do the math on the fly,
Mr. Chairman. But we could see if we could provide better
information about the statistics to you after the hearing.
Mr. Kucinich. Actually, we want to have that kind of a
dialog with you.
Ms. Brand. It is 44 percent of 75 percent, I guess,
whatever that is. Because we have 75 percent of all criminal
records, 44 percent of those have complete dispositions, that
is my understanding.
Mr. Kucinich. So that would be about 33 percent or
something like that. OK. So given your conclusion that the NICS
data base is deficient and substantially incomplete, and the
testimony you have heard from witnesses on the first panel that
the pending legislation, the NICS Improvement Act, would
improve the quantity and quality of data in NICS, does the
Department of Justice have a position on the NICS Improvement
Act and H.R. 297 that provides both what you could carrot and
stick to States to report to NICS?
Ms. Brand. We support the bill's general aims of
encouraging, providing a financial incentive to States to
provide more information. We actually already do something
similar through the NCHIP program that I mentioned in my
testimony and that was discussed in more detail in my written
testimony. We most likely will have some technical comments on
the bill and with respect to what the right dollar amount is,
we haven't taken a position on that. But we certainly support
its general aims.
I thank you, Ms. Brand.
Mr. Bilbray.
Mr. Bilbray. Mr. Chairman, I just wanted to clarify for the
record, because there was a statement made here, a testimony,
the city of New York was talking about the fact that they were
sort of outraged that the criminal activity, information was
not being shared with the city of New York. When the witness
was asked about the sanctuary status for illegals in New York,
he clearly said that there wasn't any.
I would just like the record to show that on September 22,
2003, Executive Order 41 was signed by the mayor which said
that any information pertaining to illegal immigration or that
status is confidential and shall not be shared with Federal
immigration or Federal officials. So I just want to make it
clear that the testimony, I am sure the individual meant well
and did not realize that he mis-spoke. But the city of New York
is and has been for a long time a sanctuary city. And I just
think that when we talk about exchanging information about
lawbreaking, not telling people who are criminals and who are
not, that we should be consistent on this. So I yield back, Mr.
Chairman, to the gentleman.
Mr. Burton. I just have a couple of questions, Mr.
Chairman.
First of all, I want to say to Ms. Brand, the record that
you spoke of just a minute ago is very, very good. And you are
to be congratulated. The Justice Department is to be
congratulated on the record that has been compiled in dealing
with these criminals and these people that break the law.
Ms. Brand. Thank you.
Mr. Burton. I will preface my questions with that.
I think the only question I would really like to know the
answer to is, you said that you generally agree with the goals
of the NICS legislation to get additional information for the
Federal Government to deal with these people. Do you have any
idea of the cost to the States to garner the information on
mental health records and also from the courts, the convictions
of people that have been convicted of felonies or other crimes?
Ms. Brand. I have never seen a specific dollar amount about
how much it would cost the States to get their systems in a
state that would allow them to provide all the mental health
information. I will see if anyone at the Department has that
information. I do know that the Bureau of Justice Statistics,
which is part of the Department of Justice, is in the process
of doing a survey to the States to determine which of them
don't provide mental health records because of resource
limitations and which of them don't provide mental health
records of other reasons. Because there are a number of States
that have State statutes and regulations that prevent them from
providing that information to the Federal Government.
Mr. Burton. Well, let me just say that the goals may be
laudable, but the mandates to the States or the local, the
cities throughout the country without funding from the Federal
Government, unfunded mandates are something that the State and
local governments do not want. So if we are going to go down
that path where you need additional information on mental
health records or convictions, then we ought to find out the
cost and we ought to make sure that the States don't bear that
burden.
In Indiana right now, our property taxes are so high
already that people pay are ready to march on the State house.
So we want to make sure we don't add any more liabilities on
the States from the Federal Government with a mandate that is
not going to be funded.
Ms. Brand. I agree, we would not support an unfunded
mandate. My understanding is that the NICS Improvement Act
doesn't mandate States to provide the information, but it
provides money to do it. The NCHIP program which exists now
provides grants every year to many States around the country to
just help, for example, if they don't have an automated system
at all to collect the records, it would help them fund the
creation of something like that, or it would help them create
the electronic systems to provide information electronically to
the NICS. It assists them without requiring them to provide the
information to the Federal Government.
Mr. Burton. Thank you very much, Mr. Chairman. I don't have
any other questions.
Mr. Kucinich. I thank the gentleman.
Ms. Brand, a July 2004 Department of Justice report found
that most federally licensed firearm dealers are inspected
infrequently or not at all. According to the former ATF
Director, the agency's goal is to inspect each FFL at least
once every 3 years to ensure that they are complying with
Federal firearms laws.
However, due in part to resource shortfalls, the ATF is
currently unable to achieve that goal. ATF workload data show
that the ATF conducted 4,581 federally licensed firearm dealer
compliance inspections in fiscal year 2002, or about 4.5
percent of the approximately 104,000 federally licensed firearm
dealers nationwide. At that rate, it would take the ATF more
than 22 years to inspect all federally licensed firearm
dealers. That is right from the Department of Justice report.
Why is this the case and is it still the case, and how can
the ATF improve on its inspection performance?
Ms. Brand. If you don't mind, I would like to refer that
question to Mr. Rubenstein, who is Chief Counsel of ATF.
Mr. Kucinich. Mr. Rubenstein.
Mr. Rubenstein. Mr. Chairman, thank you for the question.
ATF tries to target its resources to inspect those
licensees who come to our attention. The vast majority of
licensees follow the rules and regulations and it is not
necessary that we inspect them very often. We try to target our
investigations to licensees who do come to our attention,
either through local law enforcement or through our own
undercover efforts, to ensure that they are in fact complying
with the rules and regulations.
So while we may not be able to inspect all the licensees as
often as we might like, we try very hard to inspect those
licensees who do need to be inspected to ensure that they are
complying with laws and regulations.
Mr. Kucinich. How do you know who needs to be inspected and
who doesn't, if you have so few personnel?
Mr. Rubenstein. We get that through targeting our
inspections, each field division has a plan in which it
determines whether or not, who it is going to inspect, by
talking with local law enforcement, undercover operations it
may be using, random inspections that it conducts. Over the
years, we look at trace data, obviously, and determine whether
or not that might be a reason why we might look at a licensee.
So we try very hard to target the resources we do have for
those licensees. Our primary goal is to ensure that they are in
fact complying with the law. When we go out to inspect a
licensee, our goal is to ensure that they know what the
regulations require and that they are in fact following those
regulations.
Mr. Kucinich. Here is what I am wondering. I am trying to
square what you had to say with the former panel,
representative from New York City, who said that they were able
to identify 27 licensed gun dealers, and that they had to sue
them to come into compliance. Did New York City do a better job
than the ATF in the case of their sphere of operation?
Mr. Rubenstein. I am not going to comment on whether New
York City did a better job or not.
Mr. Kucinich. Were they luckier with enforcement?
Mr. Rubenstein. Again, I am not going to comment. We did
look, they did send us some information about the 27
investigations. In reviewing that with the U.S. Attorneys, it
was determined that there was not enough evidence to bring
criminal actions at the Federal level.
But be that as it may, I think ATF sets its priorities as
to who it should inspect, and I think uses its resources to its
fullest capability to ensure that licensees are in fact
complying with the Federal firearms laws. I think as the first
panel represented and as I think we all know, the vast majority
of licensees are in fact complying with the law.
Mr. Kucinich. One of the things that you said, you said you
didn't have enough, there wasn't enough evidence. It was my
understanding that New York City actually had these gun dealers
on tape. Were you aware of that?
Mr. Rubenstein. I was aware that there were some tapes,
yes, sir. I did not review the tapes.
Mr. Kucinich. In terms of evidence, just for my
information, what standard of evidence does a tape provide? Is
it a low standard? Is it a high threshold of evidence?
Mr. Rubenstein. I am not in a position to testify about
what was or was not on the tape, or whether or not it met a
standard. All I can tell you was that the U.S. Attorneys who
reviewed the tape determined that it did not meet the standard
for prosecution.
Mr. Kucinich. I would just say that, with all due respect,
Mr. Rubenstein, it was obviously enough evidence that the gun
dealers voluntarily entered into a consent agreement that
dramatically changed the way in which they operated. I am just
pointing that out to you as someone who is the counsel for the
Department.
Mr. Rubenstein. I understand, and again, I can't comment on
that.
Mr. Kucinich. This isn't a point of view, this is a point
of law.
Mr. Rubenstein. I am just saying, as far as whether or not
it met a Federal standard for prosecution, is perhaps different
than entering into a consent agreement with a private party.
Mr. Kucinich. Does the DOJ support repeal of the Tiahrt
Amendment?
Ms. Brand. The answer is no. The President's budget request
contained language that was similar to the Tiahrt Amendments.
Mr. Kucinich. Why not?
Ms. Brand. I am going to defer to Steve on that one.
Mr. Rubenstein. We don't believe the Tiahrt Amendment
impedes law enforcement. Over the last several weeks, and
perhaps months, there have been numerous articles and questions
about the Tiahrt Amendment and what trace data can be released
and what can't be released. What I want to say is that,
firearms trace data is critically important, that is developed
by ATF to assist State and local law enforcement in
investigating and solving violent crimes. ATF traces
approximately 280,000 firearms every year for approximately
17,000 law enforcement agencies around the country.
We consider that to be law enforcement-sensitive
information. Because it is often the first investigative lead
in the case. If I can briefly explain what occurs, a police
department will find a gun at a crime scene, they will ask ATF
to trace it. We will trace that firearm for that local police
department.
That may be the last ATF hears about that trace. We will
give that information to that local police department and
assist them in any way possible to help investigate that crime.
They at some point, if they are asked by another law
enforcement agency outside the jurisdiction, are free to
disclose that information to any other law enforcement agency.
In fact, there are multi-jurisdictional task forces in which
trace data is disclosed.
The concern for ATF, the historical concern, predating the
Tiahrt Amendment, has been the release of trace information to
other than a law enforcement agency who recovered a firearm.
Because the concern would be, if it is released to third
parties, it could help criminals evade detection, it could
interfere with undercover operations, it could interfere with
ongoing State investigations that were being pursued. But ATF's
primary goal, one of its primary goals under the Gun Control
Act, is to assist State and local law enforcement in their
fight against crime. I think the Tiahrt Amendment, we don't
believe, does anything to stop ATF or to impede ATF in
assisting the States in that fight.
Mr. Kucinich. I thank the gentleman.
Mr. Issa, do you have questions?
Mr. Issa. Just following up on that, can we all agree that
the two biggest challenges we face today is in fact making sure
that all persons, whether mentally defective, criminal in their
background, illegally in this country, need to be on a 50 State
basis, plus the territories, excluded from being able to
purchase guns. Is that a fair, broad statement?
Ms. Brand. Federal law already prohibits the categories of
people you just mentioned.
Mr. Issa. Right, except in fact, Virginia Tech shows us
that we have not yet successfully implemented those existing
laws.
Ms. Brand. There are significant gaps, there are a
significant number of records that are not in the NICS system,
that is true.
Mr. Issa. The reason for my question, we are an oversight
and reform committee. It is actually very good that we are,
because our job is to say, in many ways, are the existing laws
sufficient and is it an absence of implementation, is it a
defect in the law, or is it in fact, if you will, bureaucracies
that are in the way. It appears as though we do have a State
cooperation and information sharing problem, State and local,
that has to be worked on. Some of it will have to be,
consistent with the Constitution, it will have to respect the
States, but encourage the States.
The second and obvious one is, and I think Mr. Bilbray
brought this up earlier, we have a challenge in that we have 12
million illegals in this country. They represent, in
California, nearly half of all the people who are incarcerated
in our prisons and they represent a huge part of the gun crime.
So we have a Federal issue that would appear to be not fully
taken care of.
And then last one, and I think, Mr. Rubenstein, you were
hitting on it, we do have a mandate to track weapons from womb
to tomb and in fact to provide law enforcement the ability to
get the information necessary in criminal prosecutions. If I
heard you right, basically you are saying you are reasonably
satisfied that you are going that direction. I want to make
sure I give you a chance to say whether or not you believe that
is as big a problem as the State and local cooperation and the
Federal implementation of persons who should not be able to
purchase, which clearly, this committee, we didn't even meet
and we knew we had a problem there.
Mr. Rubenstein. If I understand your question correctly, I
think that is correct.
Mr. Issa. OK, but your satisfaction level is relatively
high as to release of information State and local law
enforcement?
Mr. Rubenstein. Yes, sir.
Mr. Issa. So if, and hopefully we will get unanimity here,
if we were to focus most narrowly to get the most effectiveness
from this committee's energies and time, both in oversight and
potential legislation we might introduce, although it probably
wouldn't come back to this committee, it would be referred to
another committee, we should work on things which would allow
or encourage or bring about 50 State cooperation and compliance
with the individuals, the groups that I mentioned that are
prohibited from gaining firearms?
Ms. Brand. If I understand what you are saying, yes. It has
been a goal of the Department since NICS was stood up in 1998
to constantly increase the number of records the State put into
the system. Now, we can't constitutionally force them to do
that, but we, it is not as though we just woke up after
Virginia Tech and started encouraging them to do it. We have
been encouraging them to do it for years.
Mr. Issa. Right. And if you were here, on an earlier panel,
I made the point that this President has clearly made it a
priority for the U.S. Attorneys, this Attorney General and his
predecessor have, for gun crime enforcement, even where it
wasn't necessarily popular, has made the point that U.S.
Attorneys have to do a substantial amount of that.
But circling back again, as you all know, the power of
Congress in interstate commerce and other areas has been used,
the highway implementation, we were able to get States to all
go to 55 when we wanted them to go to 55, we were able to get
them to go to 21 for the age of drinking when we wanted to. We
have ways of encouraging States to do certain things and to
comply. We certainly have tremendous amounts of dollars that
come from the Federal Government to provide law enforcement
tools. And we can reasonably expect that if they don't want
that money, they can choose not to cooperate. If they do want
that money, we can hook, perfectly constitutionally, that they
shall comply with certain aspects of enforcement.
The question is, is that the best use for this committee
and if it is, what recommendations could you make to us for
tools to do it or, more importantly, where we should first put
our priority within that major group of non-compliance with
making sure that certain groups or individuals do not get
weapons?
Ms. Brand. We already have the NCHIP funding program, which
the President funds in his budget request every year. Congress
actually has funded the NCHIP program at lower levels than the
President's budget request for the last several years running,
and for the last 2 fiscal years that program has been funded at
only $10 million when the budget request has been around $50
million.
So $10 million is really not that much money to parse out
among all the 50 States to help improve their systems. So we
certainly support improving systems that way.
Now, the NCHIP programs that it has funded has priority
areas to encourage the States and their grant applications to
focus on those areas. One of those areas is improving mental
health records provision to the system. So that is something,
that and the criminal records dispositions are two of the areas
that the NCHIP program focuses on.
Mr. Issa. Thank you, Chairman.
Mr. Kucinich. Thank you. The time has expired.
Mr. Burton.
Mr. Burton. I have no questions. Thank you.
Mr. Kucinich. I want to thank this panel for appearing.
This committee will submit questions in writing and we
would appreciate your response so that we can complete our work
for this particular hearing. I want to thank you for your
presence here, and we appreciate it.
We are going to recess for two votes and I think we will
probably be back here in about 25 minutes to a half hour, at
which time we would ask the third panel to join us. This
committee stands in recess.
[Recess.]
Mr. Kucinich. Good afternoon. Welcome to the witnesses. The
committee will come to order again.
This is the third panel of the Domestic Policy
Subcommittee's hearing entitled, ``Lethal Loopholes:
Deficiencies in State and Federal Gun Purchase Laws.''
We heard from panels who represent the legal community
against violence, the Brady Campaign Against Handgun Violence,
Criminal Justice Coordinator for New York City, and Assistant
Attorney General of Legal Policy, U.S. Department of Justice,
and the Chief Counsel of the Bureau of Alcohol, Tobacco,
Firearms and Explosives.
This third panel consists of witnesses from Johns Hopkins
University, University of Pennsylvania and from the National
Alliance on Mental Illness. Susan Sorenson, Professor Sorenson
is a professor of social policy and criminology at the
University of Pennsylvania and part of the graduate group in
public health. Since 1986, she has taught a graduate course at
UCLA at Penn on family and sexual violence. Professor Sorenson
has published widely in the epidemiology and prevention of
violence, including homicide, suicide, sexual assault, child
abuse, battering and firearms. She was a member of the National
Academy of Sciences Panel on Research and Violence Against
Women, a consultant to Unicef's May 2000 report on domestic
violence against women and girls, and a member of the advisory
panel for the 2001 U.S. Surgeon General's report on youth
violence.
We will also hear from Professor Daniel Webster, who is an
associate professor of health policy and management at the
Johns Hopkins Bloomberg School of Public Health, where he
serves as co-director of the Center for Gun Policy and Research
and associate director of research for the Center for the
Prevention of Youth Violence. Professor Webster has published
numerous articles on firearm policy, youth gun acquisition and
carrying, firearm injury prevention, intimate partner violence
and adolescent violence prevention. He is currently leading
studies that evaluate policies to reduce illegal gun sales, he
is leading a community gun violence prevention initiative and
an intervention designed to encourage protective measures for
victims of domestic violence.
Finally, Mr. Ronald Honberg. Mr. Honberg is the national
director for policy and legal affairs at the National Alliance
on Mental Illness [NAMI]. During his 18 years with NAMI he has
worked on issues affecting people with mental illnesses
involved with criminal justice systems, including jail
diversion, correctional treatment and community re-entry, and
has drafted amicus curiae briefs on precedent-setting mental
health legislation. Before coming to NAMI, Mr. Honberg worked
as a vocational rehabilitation counselor for the State of
Maryland, and in a variety of direct service positions in the
mental illness and developmental disabilities field.
It is the policy of the Committee on Oversight and
Government Reform to swear in our witnesses before they
testify. I would ask that the witnesses please stand, raise
your right hands.
[Witnesses sworn.]
Mr. Kucinich. Thank you. Let the record show that the
witnesses answered in the affirmative.
As with panel two, I will ask you to give an oral summary
of your testimony and to keep this summary under 5 minutes in
duration. Bear in mind, your complete written statement will be
included in the hearing record. We will begin with Professor
Sorensen.
STATEMENTS OF SUSAN B. SORENSON, PROFESSOR OF SOCIAL POLICY AND
CRIMINOLOGY, UNIVERSITY OF PENNSYLVANIA; DANIEL W. WEBSTER,
ASSOCIATE PROFESSOR AND CO-DIRECTOR OF THE CENTER FOR GUN
POLICY AND RESEARCH, JOHNS HOPKINS BLOOMBERG SCHOOL OF PUBLIC
HEALTH; AND RONALD S. HONBERG, PROFESSOR OF SOCIAL POLICY AND
CRIMINOLOGY, DIRECTOR OF POLICY AND LEGAL AFFAIRS, NATIONAL
ALLIANCE ON MENTAL ILLNESS
STATEMENT OF SUSAN B. SORENSON
Ms. Sorenson. Thank you for the invitation to be here
today, and I begin with good news. The number of homicides
committed by an intimate partner has dropped during the past 30
years. Also, the proportion of intimate partner homicides that
were committed with a gun has dropped in the past 30 years.
However, one bit of information remains disturbingly
constant. That is that women are more than twice as likely to
be shot by a male intimate as they are to be shot, stabbed,
strangled, bludgeoned or killed in any other way by a stranger.
When it comes to firearms, much of the discussion tends to
focus on fatalities. But a firearm does not have to be fired to
have an impact. It can be used to intimidate and to coerce an
intimate partner to do what the abuser wants. An estimated 4
million U.S. women have been threatened with a gun by an
intimate partner, and nearly 800,000 have had an intimate
partner use a gun against them.
It would be as if every woman in Washington, DC, Boston,
San Francisco, Chicago, Los Angeles, Miami, Hartford, Columbus,
Indianapolis, Salt Lake City, Albany, Rochester, Syracuse,
Buffalo, Milwaukee, Richmond and Des Moines had at least once
in her life an intimate partner use or threaten to use a gun
against her.
Congress has passed two pieces of legislation that are
relevant here. I will reiterate what we heard earlier today.
The 1994 Violent Crime Control and Enforcement Act expanded the
list of persons who are prohibited from possessing a firearm to
include those against whom a domestic violence restraining
order has been issued. Then in 1996, the Lautenberg Amendment,
by which persons convicted of a domestic violence misdemeanor
are prohibited from purchasing or possessing a firearm.
Now, responsibility, as we have heard for how the laws were
implemented, was left to the individual States. Some States
already had laws in place and data bases against which purchase
applications could be checked. Others have yet, more than a
decade later, to develop such capacity. This is important
because each year, about a million people in the United States
obtain a restraining order against an intimate partner. Persons
who come under a domestic violence restraining order likely are
the single largest class of new prohibited purchasers each
year.
Reports by the Bureau of Justice Statistics indicate that
about one out of every seven firearm transfer applications were
denied due to domestic violence. Many more, however, are not
denied, because the information about the domestic violence is
not available, it is not made available or it is not easily
accessed. The purchase prohibitions are more easily addressed
than possession prohibitions. Although persons under a domestic
violence restraining order are required to relinquish their
firearms, very few do.
I offer several recommendations in my written testimony,
and I will just focus on a couple here. First is that States
should implement, maintain and monitor the quality of an
electronic data base for all domestic violence restraining
orders and misdemeanors, and the data should be submitted, so
they can be part of NICS. Work at the States is essential so
that the intent of the Federal law is met. Therefore, some sort
of incentive might be useful to speed quality compliance.
We heard earlier from some of the other speakers who are
concerned about requiring States to do the work of the Federal
Government. I was thinking about that a bit over one of the
breaks. It is not that, I would like to ask the question,
compared to what. Because if the States don't do this, they are
going to be picking up the costs for the incarceration and the
prosecutions when the guns remain in the hands of those who
should not be having the guns.
So it is not a zero sum game, because the costs are still
going to be borne by the States and local municipalities. But
the issue is how those get spent. Personally, I would rather
see them spent in prevention.
Second, a Federal agency should monitor the amount and
quality of the data that is submitted to NICS, and should issue
periodic reports on these findings. There are concerns specific
to these records. I can expand on that. And they merit very
close monitoring, until there is more complete compliance.
There will be perhaps some that won't comply. We know death
certificates, for example, that are submitted to the National
Center for Health Statistics, my understanding is that is a
voluntary process that the States participate in. So the Feds
have figured out how to make this work and how to get voluntary
compliance. There is one State, I believe, that still has not
complied and doesn't submit their death certificate records.
But Federal agencies do know how to monitor the data they
get to have a good sense of whether these are underestimates
and to make sure of the quality of the records that they do
receive.
Next we need models and guidelines for firearm
relinquishment and removal. It would be great if we could have
allocations to an appropriate Federal agency so we could
convene key stakeholders from around the country to develop
guidelines to ensure compliance with Federal law.
Last, consideration should be given to whether firearm
prohibitions should be extended to related circumstances. I
think specifically of former dating partners, as was pointed
out already, as not covered under Federal law, and also to
stalking. Stalking is a situation in which you have someone who
becomes obsessed with another, and even though there may not be
any relationship, they perceive a relationship or they want a
relationship. When attempts to make contact are not met or are
rebuffed, the person can develop motivation for wanting to harm
the other. And it would be important to make sure that we don't
allow them to have the means.
So in summary, there is useful, relevant legislation
already in place. Some expansion of dating partners and
stalking merits consideration. But mostly, however, you have
passed laws that need to be implemented and enforced. And by
making a few other changes, you can help bring your intent into
reality.
Thank you.
[The prepared statement of Ms. Sorenson follows:]
[GRAPHIC] [TIFF OMITTED] 35771.104
[GRAPHIC] [TIFF OMITTED] 35771.105
[GRAPHIC] [TIFF OMITTED] 35771.106
[GRAPHIC] [TIFF OMITTED] 35771.107
[GRAPHIC] [TIFF OMITTED] 35771.108
Mr. Kucinich. Thank you very much, Professor Sorensen.
We will next hear from Professor Webster. You may proceed.
STATEMENT OF DANIEL WEBSTER
Mr. Webster. Thank you, Mr. Chairman.
I have submitted my written testimony. I am going to try to
just cover some highlights.
Basically, the general objectives of most gun control laws,
Federal, State or local, are actually well-founded in science.
Violence is not a random phenomenon, there are predictors and
prior criminal offending problems with mental health are
factors that a number of studies have shown to be associated
with a risk for violence. There is frankly little disagreement
about the general objectives of these basic polices. But the
reason I guess we are here is, there is a huge disconnect
between the objectives of the policies and whether the current
laws are inadequate or are being enforced adequately.
I would like to focus first on whether our criminal history
restrictions are really adequate to address the objective,
again, of trying to keep guns from dangerous people. Professor
Sorensen mentioned the exclusions that were put into place in
the 1990's for domestic violence offenders. Aside from that
prohibition, we prohibit felons.
But the question is, is that really the appropriate bar we
want to set for someone, as long as you have been able to avoid
getting a felony conviction or conviction for domestic
violence, then you can have as many guns as you would like?
There is precious little research, I am very sorry to say,
to tell us enough about the adequacy of these current
standards. There is, however, one study that looked at homicide
offenders in the State of Illinois. What that study found was
that, while the offenders typically had very long criminal
histories, 57 percent of those did not have a felony
conviction. So we are clearly missing a lot of criminal
offenders by setting the bar at felony.
There has been research done in California that showed that
individuals with misdemeanor convictions have elevated risk for
future violence. Those who are going to purchase firearms and
have prior misdemeanor convictions are seven times more likely
to commit future crimes of violence and firearms-related crimes
than are individuals who don't have those kinds of convictions.
California changed its policies in the early 1990's to deny
violent misdemeanors firearms and what further research showed
is that those who were denied were significantly less likely to
re-offend than were individuals with similar arrest histories
prior to them adding the new misdemeanor restrictions. So I
think that is an important area to really fully achieve our
objective of keeping guns from criminals and dangerous
individuals.
Another category of criminal offense that is not adequately
addressed in Federal law and in 23 States is offenses committed
while the offenders were juveniles. If those same offenses had
been committed by an adult, they would have been prohibited
from being able to purchase a firearm when they are of age.
Criminal offending as a juvenile, particularly if that
offending is serious or chronic, is very strongly related to
adult offending. So that is another area in which, to achieve
our objectives of keeping guns from dangerous people, we could
expand those kinds of exclusion criteria.
I want to sort of, I see that my time is about over, but I
want to mention that with respect to the Tiahrt Amendment, many
good points were made on the effects that has on local law
enforcement. I want to say, as a researcher, it also impedes
the kind of work that I have done to inform gun violence
prevention efforts.
And a study that we published last year showed that prior,
when the data were more available, did not have the Tiahrt
restrictions, and it was discovered that a gun dealer just
outside of Milwaukee was a leading seller of crime guns, when
that was made public, that dealer voluntarily changed his sales
practices, and our research showed that the rate at which his
guns went into the criminal commerce reduced by more than 70
percent. We got more recent data through the assistance of the
Milwaukee police department and found that post-Tiahrt, when
the data were not readily available and basically gun dealers
could do what they want, the problem went exactly back to where
it was before the gun dealer was revealed as having problems
with his sales practices.
So I think that aside from simply helping address a very
specific criminal case, there is also the issue of having data
available to researchers and the public, so people will be more
accountable.
[The prepared statement of Mr. Webster follows:]
[GRAPHIC] [TIFF OMITTED] 35771.109
[GRAPHIC] [TIFF OMITTED] 35771.110
[GRAPHIC] [TIFF OMITTED] 35771.111
[GRAPHIC] [TIFF OMITTED] 35771.112
[GRAPHIC] [TIFF OMITTED] 35771.113
Mr. Kucinich. Thank you, Professor Webster.
I will now hear from Mr. Honberg. You may proceed.
STATEMENT OF RONALD S. HONBERG
Mr. Honberg. Thank you, Chairman Kucinich. I am very
pleased to be here today on behalf of NAMI, which is a
grassroots advocacy organization comprised of people with
serious mental illness and their families.
I would like to say at the outset that NAMI very much
supports efforts to prevent violent or potentially violent
individuals from possessing firearms. We thank you for the
opportunity to help guide the committee's inquiry toward that
end.
In the wake of the Virginia Tech tragedy, many questions
have been raised about how someone like Mr. Cho could have been
allowed to purchase handguns. The real lessons of the tragedy,
however, lie in the failed mental health system. Although we
realize this hearing's focus is on our gun laws, it is equally
important to recognize that timely and appropriate treatment
might well have prevented that tragedy.
With respect to the gun laws, I would like to make three
basic points. First, there has been a suggestion today that the
regulations guiding reporting of mental health information are
clear. We don't think that the guidelines in the Brady
regulations are sufficiently clear and that may be part of the
problem. For example, the term that is used to describe mental
illness is ``Adjudicated as a mental defective.''
That term needs to be changed. It is both stigmatizing and
incompatible with modern terminology used in the diagnosis and
treatment of people with mental illness. It also creates
significant uncertainty over who is and who is not covered
under the law. The regulations implementing the Brady law
attempt to define this term, but for reasons enumerated in
detail in my written testimony, this definition is still very
unclear.
No State official charged with carrying out the
requirements of the Brady bill could possibly know what this
means, as it is a term that has been obsolete for close to 40
years. And just as we wouldn't use the term idiot or imbecile
in Federal law, so too should we not use the term ``adjudicated
as a mental defective.''
Second, as I stated at the outset, we support efforts to
prevent violent or potentially violent individuals from
possessing firearms. However, mental illness should not be a
proxy for violence. Current research, including the findings of
the landmark Surgeon General's report on mental health in 1999,
strongly demonstrate that the overwhelming majority of people
with mental illness are not violent. Research does show that a
small subset of people with mental illness may pose higher
risks of violence, and predictors include a past history of
violence, non-participation in treatment, and co-occurring
abuse of illegal drugs or alcohol.
The NICS reporting system needs to be based on these kinds
of clear risk factors. One model to consider for reporting is
that under California law, which is categories that directly
link to violence or potential violence. It is also important to
keep in mind that other categories included in the NICS data
base are more directly linked with violence. For example, as
you have heard, court orders that restrain individuals from
harassing, stalking or threatening an intimate partner or child
of an intimate partner, and misdemeanor convictions for
domestic violence are included. These categories are probably
more directly relevant to potential violence than mental
illness per se.
So we believe that efforts must be made at the Federal
level incorporating expertise from the National Institute of
Mental Health and the Substance Abuse and Mental Health
Services Administration to develop clear reporting criteria and
mechanisms that are linked to violence, not solely to mental
health treatment.
Finally, NAMI believes that standards must be developed in
Federal law to protect the privacy of information provided to
the NICS system. We are very concerned that concerns about the
inappropriate disclosure of sensitive information about mental
health treatment may be a significant impediment for people
with mental illness to seek help when they need it.
Representative McCarthy has included a provision in H.R. 297,
the NICS Improvement Act, which we have heard referenced a
number of times today, requiring the publication of regulations
by the Attorney General for protecting the privacy of
information provided to the system. This would indeed be a
positive step.
But we believe these regulations must specify that only
names and addresses should be included in the NICS system--I
heard today that is in fact the case, that is not very well
known to the public--with no further information about why a
person is on the list. The law should also prohibit sharing the
list with any Federal or State agency or individual for any
other purpose, and privacy protections should apply to all
agencies and individuals responsible for collecting and
providing information for the NICS system.
In conclusion, as I have said, we support efforts to
prevent violent individuals from possessing firearms. In
accomplishing this laudable goal, it is very important to
establish criteria that achieve this objective without
inadvertently subjecting people with mental illness to further
stigma and prejudice, which can deter people from seeking
treatment when they need it the most.
Therefore, NAMI recommends a regulatory process that
incorporates current scientific knowledge and brings clarity to
this very, very complex issue. Thank you again.
[The prepared statement of Mr. Honberg follows:]
[GRAPHIC] [TIFF OMITTED] 35771.114
[GRAPHIC] [TIFF OMITTED] 35771.115
[GRAPHIC] [TIFF OMITTED] 35771.116
[GRAPHIC] [TIFF OMITTED] 35771.117
[GRAPHIC] [TIFF OMITTED] 35771.118
[GRAPHIC] [TIFF OMITTED] 35771.119
[GRAPHIC] [TIFF OMITTED] 35771.120
Mr. Kucinich. Thank you, Mr. Honberg.
Professor Sorenson, one of your recommendations is
extending the purchase prohibitions to those who stalk former
dating partners. Could you explain why the prohibition should
be expanded to include those individuals?
Ms. Sorensen. I believe it should be expanded to both
former dating partners and stalking, regardless of the
relationship, whether there was a prior relationship or not.
People who are in the public eye are sometimes stalked by
others and that kind of obsessive quality of wanting to have a
relationship with someone is, and then to not have that be met,
can be very disappointing. Then the person can sometimes become
violent.
So I don't think that there should be, the firearms
provision, there should be discussions about whether it should
be extended to all cases in which stalking has been, and there
is a restraining order in place, where a judge or commissioner
has already decided that this person constitutes a credible
threat to this other person, so that it goes through the
regular due process. But I think it should be extended there.
Also, I believe it is former boyfriends and girlfriends, or
maybe it is boyfriends and girlfriends in general, are those
who are at highest risk of intimate partner homicide. So it
seems like we would want to include that group in this
protection under Federal law about domestic violence
restraining orders.
Mr. Kucinich. Do you see any wisdom in allowing States to
adopt more stringent laws to see what works and how to balance
rights, or do you think that we know enough now to establish
uniformity at a Federal level for the expanded categories that
you have discussed?
Ms. Sorensen. Several States have already had these in
place. California has had these in place for quite some time.
This information is entered into the system that California
uses to check for background checks and for purchases. So there
is evidence that it is already working, or at least it can be
implemented, is a better way to put it.
Mr. Kucinich. Tell me more about who you work for in terms
of the statistics that you gather and the policy
recommendations that you make.
Ms. Sorensen. This has been a content area for me, for my
research, for a number of years. I also had the privilege of
serving on an attorney general, this is for the State of
California, former Attorney General Bill Lockyer, his policy
committee, it was a task force. One of the things that we
looked into was whether firearms prohibitions were being
enacted appropriately and were being enforced correctly. We
were surprised to find that there were a number of counties
that were, as we put it, under-reporting. We would have
expected far more restraining orders from them than we were
getting. Sometimes it was because they weren't entering them,
sometimes because the judges had crossed their prohibitions off
on restraining orders. And sometimes because they lacked
personnel to do it.
And when it was brought to the attention, from the State
Attorney General, to the local DAs and such, and the local
police officers, and the persons who were responsible for that,
they changed practices. So simply letting them know that, we
are paying attention and we are going to be monitoring this,
brought them quickly into compliance on some things.
I think federally, if we know that is going to happen and
that is happening at a Federal level, that would be great. We
have fewer than 1 million restraining order records in NICS
right now. There should be lots more than that.
Mr. Kucinich. Thank you very much.
Professor Webster, the ways that the laws are designed now,
the prohibited categories at the Federal level and at the State
level are mostly permanent. You do mention the case that some
States restore firearm privileges at age 30 if juvenile
offenders have disqualifying adult violations.
Should this happen for other categories?
Mr. Webster. I am not sure if I get the question. So the
question is whether some prohibitions might be time limited?
OK. I think if it is a matter of not having, if that is the
only way you can get the restrictions, I think it makes a lot
of sense. We do know a fair amount about developmental
trajectories for criminal offending. Typically, if there is no
offending during the adult years, it is pretty darned rare that
they are going to be a problem later.
Mr. Kucinich. So for example, if a person is convicted of a
felony or domestic violence misdemeanor as a young man or
woman, would they be a demonstrated risk purchasing a handgun
in their 50's when their record is otherwise immaculate?
Mr. Webster. It would be an unusual set of circumstances. I
am not saying there is no risk.
Mr. Kucinich. Is there any social science there at all?
Mr. Webster. I don't know of a very specific study that
examines exactly that. I will just say it would be an unusual
set of circumstances.
Mr. Kucinich. I have a question for both you and Mr.
Honberg. Are there any good studies that show what classes of
mentally ill people are likely to commit a crime, or
specifically, whether the Federal definitions of mentally
defective and committed to a mental institution are based on
sound social science? Professor Webster.
Mr. Webster. I have not been able to find a study that
would define the mental health problems in the way that the
Federal law does. I think Mr. Honberg was right on in saying
that sort of the definitions and how we define that doesn't
line up with how scientists and clinicians tend to do that kind
of thing.
So there is really nothing to go on to say for sure whether
those set of criteria really are logical. I do agree with what
he was saying earlier, that there are certainly a number of
very seriously mentally ill people who might be technically
disqualified but who probably really are not a threat. On the
other hand, there are certainly a number of individuals when
mental health conditions that research shows does elevate risk.
Mr. Kucinich. Mr. Honberg.
Mr. Honberg. There certainly have not been any studies that
I have seen that have looked specifically at the relationship
between mental illness and the likelihood of committing a
violent act with a gun. But there have been studies that have
looked at mental illness and violence, a number of them, some
recently published. As I said, the risk factors that have been
identified, with the caveat that the overwhelming majority of
people are not violent, if the person is not receiving
treatment, if the person has engaged in violence in the past
and if the person is engaging in what is known as the co-
occurring use of alcohol or substance abuse.
I will say that a lot of the categories that are in the
Federal law seem to have a fairly tenuous link with violence.
Involuntarily committed may be legitimate if the basis of the
commitment is on the basis of being dangerous to self or
others. But we know that there are many people who are
involuntarily committed who are committed for other reasons
that have nothing to do with violence.
We also know that included in the Federal definition
potentially are people who may have been found at one time or
another to be incompetent, to manage, for example, their money
for a temporary period of time, were assigned a guardian but
after a period of time regained their competence. We also know
that recovery from mental illness is very possible these days
and that people can go from a time when they may not have been
doing well to 20 or 25 years of independence and productivity.
So the idea of having a durational limit or some criteria in
law makes sense to us. Interestingly, California, which
actually has a definition which in some respects is broader
than the Federal definition, but also has durational limits, in
one category 5 years, in another category when the person
regains their competence. It also has procedures in place that
would enable people to petition to have their name taken off
the list. It makes sense to us.
Mr. Kucinich. Obviously, everyone who may have at one time
or another suffered from mental illness is not necessarily
violent. Do you have any comments based on your study or
analysis of the individuals involved in the tragedy at
Blacksburg?
Mr. Honberg. I don't think we know enough yet about Mr. Cho
to know what his diagnosis was. What we do know is that there
were some, based on the media stories that have come out, that
there were some telltale signs. He was actually held on an
involuntary basis on a 72 hour hold in a hospital. He was
released on strict conditions that he participate in outpatient
treatment. He was actually committed on an outpatient basis to
outpatient treatment. There was clear language in that
commitment order that said he was potentially dangerous to self
or others.
Then 2 years passed before the tragedy occurred. And the
last thing I want to do is play Monday morning quarterback
here. But this was somebody where there was clear notice that
he was potentially at risk. What happened, as happens time and
time again, is that the mental health system didn't do its job,
didn't provide him with the services that he needed. There was
no coordination between the court and the mental health system.
So he basically went without treatment for 2 years, and his
symptoms, it appears, only got worse.
So in a situation like that, where there was actually a
finding of potential dangerousness, we would have no problem
with a person under that circumstance going on the list, at
least for a period of time, until the dangerousness is abated.
Mr. Kucinich. Anyone else on the panel want to comment on
that one?
I would like to ask Professor Webster, you wrote that there
is little evidence that policies prohibiting the seriously
mental ill from possessing firearms play a role in determining
whether individuals seek care for their mental illness. You
cite a 2001 study. Can you explain this study?
Mr. Webster. Yes. It was a study that was a survey and
asked individuals the reasons, individuals with mental health
problems. They asked simply what are the reasons that you did
not seek care. The study did not reveal any responses that
indicated that they did not seek care because they were
concerned about being on a list that would prohibit them from
purchasing firearms. Only----
Mr. Kucinich. Did you say they were or weren't?
Mr. Webster. They were not. There were no responses
reported in that study that had anything to do with that. The
only thing that was even remotely close to that was that 14
percent said that they did not seek treatment due to issues of
stigma around that. The degree to which we conflate criminality
with mental health, that of course creates the stigma. But that
is a few, that is a little bit removed.
So I think that the general objective of keeping firearms
from, basically I am in agreement with Mr. Honberg that there
is a set of individuals with mental illness that at least
temporarily are going to be potentially dangerous. By
restricting access to firearms, it should not be a barrier,
will not be a barrier to them getting care.
Mr. Kucinich. Do you have a comment, Mr. Honberg?
Mr. Honberg. Yes. Again, I think we are in agreement,
certainly on the point that we need to try to identify the
people who are at risk and make sure that they don't get
firearms. But I do want to emphasize just how pervasive the
stigma that people with mental illness face and how even the
perception that your name may go on a list, people worry about
the time about sensitive information, about their mental health
records being disclosed and adverse consequences as a result.
I will just give you an example that I think you I am sure
have heard before, that a lot of people, when they need mental
health treatment, if they are fortunate enough to have private
insurance, oftentimes choose to not seek reimbursement through
their private insurance, for fear that somehow the information
that they received that treatment will be disclosed and that
there will be adverse consequences in terms of losing their
jobs or impacting in their social relationships.
So my point is that we have to be very, very careful about
this. We certainly can't be careful enough in terms of the
privacy protections that we put in place for people.
Mr. Kucinich. That raised a question. One of the early
panelists today in testimony stated the following: ``FBI data
indicate that a small fraction of the number of Americans who
have been involuntarily committed in mental institutions has
been reported to the NICS. As of November 30, 1999, the FBI had
received from all States a total of only 41 records of mentally
ill persons. Although the number of mental health records
provided to NICS has increased, in 2003 there were more than
143,000, mental illness remain significantly under-reported. As
a result of the FBI's lack of information about mentally ill
persons, it cannot be assured that an FBI background check will
find that a person is ineligible to possess a firearm due to
mental illness.''
So there is that kind of a quandary. The question that you
raise about just the reporting, so if someone is involuntarily
committed, let's say they have a nervous breakdown because of
the loss of a loved one. Is this the kind of concern that you
are----
Mr. Honberg. I would say, just addressing broadly the
question of why so many names aren't being reported, I think
there are two reasons for that. I think in the process of
giving you those reason I will get at your question.
First, I have to make a point that a lot of States don't do
a very good job of keeping data. We did a report last year, we
did a national report card on States. We found that a number of
States couldn't even provide you with an unduplicated count of
people that they served in their mental health system in a
given year. So that clearly, the technology has to be improved.
But I also get back to the point I made in my testimony,
which is that the definition is really vague and unclear. I
don't think that States really understand who they are supposed
to report and who they are not supposed to report. That is why
I think it is very important to revisit the definition at this
point.
What Representative McCarthy is trying to accomplish in her
legislation is very important, and we support her goals. But
there is an aversion, perhaps for understandable reasons, based
on what I heard earlier today, to reopen the Brady law and to
reopen the regulations. But I really think that when it comes
to the definition of who with mental illness should be reported
and who shouldn't, it is important to do that. That is really
what we are pushing for as an organization.
Mr. Kucinich. Thank you very much.
One of the things I want to comment on, in this discussion
about the gun violence and the reporting of statistics, and of
course, your presence here is to talk about the role of mental
illness as one of the reporting categories, one of the things
that occurs to me is the fact that we are still struggling with
the issue of mental health parity in this country, and making
sure that those who are mentally ill have access to the health
care services that they need on an equal basis with people with
other types of illnesses.
John Conyers and I have produced a bill, H.R. 676, the
Universal Single Pair Not-for-Profit Health Care Bill, that
among other areas provides for fully covered mental health.
That would be one way in which we would have a chance to look
at those issues in much more detail and provide the kind of
care that people obviously need.
With respect to Professor Sorensen and to Professor
Webster, your familiarity with various types of violence and
their relationship to crimes of violence using implements like
guns, you may be familiar with another proposal, H.R. 808, to
create a Cabinet-level department of peace and non-violence,
which looks specifically at the issues that both of you have
talked about, domestic violence, spousal abuse, child abuse,
violence in schools, gang violence, gun violence related to
that, racial violence, violence against gays, police community
conflicts. It creates an organized approach to dealing with it
based on really reaching out to professionals such as yourself
to get that expertise and get it into solid programs that work
with existing groups or work with the educational system to
teach non-violence and non-violent conflict resolution at an
early age.
So as I am listening to your testimony, I am thinking about
how a new model essentially could be constructed to look at the
problems that were presented today, which are basically
quantitative, in effect, trying to get the data to try to
determine where do we go from here. Even as we do that, it is
still possible to look at creating other models that change the
gross numbers that we see reflected in these tragedies.
So I want to give each of you a chance for a closing
statement, if you would like. Professor Webster.
Mr. Webster. I would just close in saying that it is my
sincere hope that Congress will act to make some of the reforms
that were discussed today that really can achieve the
objectives that truly the vast majority of Americans agree
upon. When I say that, I mean gun owners. Virtually all kinds
of common sense regulations that have been discussed in this
hearing today gun owners support. There may be extremist
organizations that don't. But when you do polling, gun owners
agree with it.
So I hope that we can start to make progress on this. It is
one of the largest public health problems that we face. The
Federal Government needs to step up to the plate.
Mr. Kucinich. Professor Sorensen.
Ms. Sorensen. Professor Webster said it well. The piece
that I would add is that there have been a number of
organizations, groups of former battered women and those who
advocate on behalf of them who have worked hard to get those
laws in place. It is really important, I think, that we make
sure they are implemented and enforced so that we can ensure
safety and greater health.
Mr. Kucinich. Thank you.
Mr. Honberg.
Mr. Honberg. I just want to express my gratitude for your
focus on broader issues around health care and access to
quality health care. I really think that is at the crux of this
tragedy. Without in any way trying to trivialize the importance
of the gun issue, it has been frankly a little frustrating to
me the last couple of weeks that there has been so much focus
on the gun issue with respect to Mr. Cho and very few questions
asked about, well, how could somebody like this have not gotten
treatment.
The answer is, because in many parts of the country, there
is no mental health system in place. Where there is a system,
it is crisis oriented. So you only get services when you are in
crisis and only for so long as you are in crisis.
It would be akin to having a system for treatment of heart
disease where you would only get treatment if you had a heart
attack, and then as soon as the immediate life-threatening
event were averted, you wouldn't get any more treatment. So it
is no wonder why so many people fall through the cracks. You
have certainly been, over the years, a great champion for
trying to fix our health care ills in this country and we
really appreciate it.
Mr. Kucinich. I thank the gentleman, and thank all the
witnesses. Certainly the discussion that you have started today
has the potential to be the basis of other hearings by this
subcommittee. So the staff will certainly be in touch with you.
I am grateful for the professional commitment that each of you
have shown to these issues.
This has been a hearing of the Domestic Policy Subcommittee
of the Oversight and Government Reform Committee. The hearing
today has been about Lethal Loopholes: Deficiencies in State
and Federal Gun Purchase Laws. I am Congressman Dennis Kucinich
of Ohio and the chairman of this subcommittee. I want to thank
all the witnesses for your participation, and this committee
stands adjourned.
[Whereupon, at 6:43 p.m., the subcommittee was adjourned.]
[The prepared statement of Hon. Elijah E. Cummings
follows:]
[GRAPHIC] [TIFF OMITTED] 35771.121
[GRAPHIC] [TIFF OMITTED] 35771.122
[GRAPHIC] [TIFF OMITTED] 35771.123
[GRAPHIC] [TIFF OMITTED] 35771.124