An audit by the Office of Inspector General (OIG) has found that the Department of Homeland Security (DHS) did not consistently comply with National Instant Criminal Background Check System (NICS) requirements. The Federal Bureau of Investigation (FBI) uses NICS to prevent prohibited persons from obtaining firearms.
OIG’s audit found that DHS did not consistently comply with NICS requirements from July 2019 to June 2021. According to the Inspector General, DHS components did not submit the required data to the Department of Justice (DOJ), as the United States Code and Code of Federal Regulations require. In particular, the components did not consistently update missing information on dispositions, that is, information on the nature and outcome of criminal proceedings. OIG noted in its report that its testing confirmed that, cumulatively, DHS has more than 6.4 million charges missing dispositions in NICS.
According to data reviewed by OIG, U.S. Customs and Border Protection (CBP) has the highest number of missing dispositions. Within CBP, the U.S. Border Patrol apprehends the most persons. The Border Patrol handbook requires staff to include Form R-84 in a case file and for Border Patrol agents, prosecutors, or the courts to complete the dispositions once known. However, CBP transfers arrestees to ICE for immigration proceedings or other law enforcement agencies as necessary, and individuals are not in CBP custody when their cases conclude. When CBP transfers people to other law enforcement agencies for adjudication, those agencies do not always notify CBP of the disposition. Prosecutors and courts are not within CBP, and Border Patrol’s policy requires no additional follow-up to ensure completion of dispositions attributed to CBP.
OIG also determined that the components did not always respond promptly or sufficiently to FBI NICS inquiries. Specifically, DHS components took more than three days to respond or were unresponsive to 126 (59 percent) of 214 NICS inquiries.
OIG had previously reviewed the U.S. Coast Guard’s NICS submissions to ensure service members with prohibiting criminal records were reported to DOJ, as required. At the time of the report in 2018, DHS OIG determined that the Coast Guard did not enter 16 service members’ prohibiting information into NICS. In this report, DHS OIG recommended eight actions to improve the Coast Guard’s NICS compliance. One recommendation included performing a comprehensive review of criminal investigative databases to ensure the Coast Guard reported all prohibiting records to the FBI. OIG has since said that the Coast Guard implemented the recommended corrective actions by August 30, 2021.
In its latest audit however, OIG found the Coast Guard did not always report dishonorable discharges. The Gun Control Act of 1968 prohibits the sale or transfer of firearms to any person discharged from the Armed Forces under dishonorable conditions. As both a law enforcement organization and branch of the Armed Forces, the Coast Guard must report dishonorable discharges, plus other prohibitions.
The watchdog has attributed the issues it found in its latest audit to DHS not having a unified policy or plan to ensure the timely updating of dispositions or a mechanism to ensure prompt, sufficient responses to inquiries. If NICS examiners do not receive disposition data to deny or approve a firearm sale within three business days, licensed sellers may transfer firearms at their discretion. Therefore, OIG found that DHS not sending disposition data to NICS and its delayed and insufficient responses to FBI inquiries create a risk of wrongful firearms transfers.
Additionally, as the Fix NICS Act of 2018 requires, DHS submitted semiannual certifications to DOJ consistent with NICS, but OIG found that at least two submitted certifications were inaccurate. This occurred, the watchdog said, because DHS has no oversight or policy to ensure compliance with NICS reporting requirements. As a result of DHS’ inaccurate certifications, DOJ’s semiannual report to Congress on Fix NICS Act of 2018 compliance was also inaccurate.
Failing to comply with NICS requirements costs lives. In 2018, the Department of Defense OIG issued a report emphasizing the importance of accurate and timely NICS information. The report detailed the U.S. Air Force’s failure to send a service member’s prohibiting criminal history information to DOJ. The missing information allowed the service member to legally purchase multiple firearms which were used to carry out a mass shooting at First Baptist Church of Sutherland Springs, in Sutherland Springs, TX, killing 26 people.
To help prevent another fatal incident, OIG is making four recommendations to DHS:
- Establish a DHS oversight entity to ensure National Instant Criminal Background Check System compliance in DHS, which should include coordinating with the Attorney General to resolve open dispositions that no longer have available information and discontinue use of administrative closure dispositions; and developing a risk-based strategy for components to assess missing criminal history records and submit missing dispositions.
- Establish a mechanism to track and ensure timely responses to NICS inquiries and develop and implement a process to include immigration status at the time of inquiry for immigration-related inquiries.
- Establish a process for the Personnel Service Center to notify the Coast Guard Investigative Service of the completion of dishonorable discharges and that Coast Guard Investigative Service personnel enter them into NICS data.
- Coordinate with DOJ to better understand NICS semiannual reporting requirements and issue DHS NICS semiannual certification guidance to components.
DHS questioned some of the data in OIG’s report but nonetheless concurred with the four recommendations. The Department said it will establish an oversight mechanism to ensure NICS compliance. Once an oversight entity has been established, DHS will create mechanisms to track and ensure that responses to NICS inquiries will be developed timely, as well as include immigration status for immigration-related inquiries. Specifically, individual DHS components will work to continue and expand sharing of immigration status at the time of inquiry. OIG welcomed the proposed actions but is concerned that DHS proposed an estimated completion date more than three years out.