A New Look at Implementation of the Brady Act

Corrections/Police -- Criminal Justice -- The Brady Act

Seven-Stage Checklist for Program/Policy Planning and Analysis

The Seven Stage Checklist for Program/Policy Planning and Analysis was employed to examine The Brady Act. In Stage 1, Analyzing the Problem: the problem was found to be at least four serious gaps in the existing Brady Act. Those gaps include: the lack of required background checks for all gun sales, including private sales at gun shows and online; the lack of strong federal law criminalizing gun trafficking; the ready availability of military-style weapons and high-capacity magazines with more than 10 rounds; and the Tiahrt Order passed by Congress and preventing the public from knowing the identities of gun traffickers and how they operate.

Though the Brady Act suffers from several gaps, the lack of required background checks for all gun sales, including private sales at gun shows and online was addressed. Stage 2: Setting Goals and Objectives: The goals statement is the closure of private-sale loopholes by requiring all gun sales, whether in primary or secondary markets, brick-and-mortar or online, be subject to background checks. The outcome objectives are: the key result of plugging the existing gaps in the Brady Act's background check requirements; the target population is all individuals who would properly be disqualified from gun ownership; time frame for measuring the impact and specific criterion for measuring impact would be a yearly assessment of the number of individuals refused gun sales by background checks in so-called "private" sales that are currently exempt from background checks. Stage 3: Designing the Program or Policy: using both policy and strictly enforced program, the program would meld existing background check procedures with very strictly enforced State of California requirements for comprehensive background checks, funneling of all firearm transactions through Federal Firearms Licensed dealers and requirement that every handgun be registered by its owner, plus law enforcement presence and oversight at gun shows, and sting operations. Stage 4: Action Planning: resources needed would include: additional 4473 forms, training of firearm sellers for background checks, police presence and oversight of firearm sales, "buy and bust" police stings, police seizure of unregistered firearms within the U.S. borders, a web task force and additional FBI agents to review background checks within the 3-day period. Funding will come from FFL fees, background check fees, gun registration fees, and Congressional mandate. Stage 5: Program/Policy Implementation and Monitoring: the intended target population of firearms sellers and buyers would be reached by consistently monitoring police oversight, background check applications/results and online team's location and termination of gun-selling web sites violating uniform background checks. Gaps and conflicts in implementation and adequate staffing would be defined and periodically corrected. Stage 6: Evaluating Outcomes: major stakeholders would want to know both the impact and continuous outcomes. Our objective of requiring background checks for all firearm sales is quite clearly defined and measurable from the beginning. Whether our system is sufficiently well-designed and well-implemented remains to be seen through monitoring, data collection, feedback from staff/stakeholders and review. Stage 7: Review of Program/Policy: Done. The Seven-Stage Checklist for Program/Policy Planning and Analysis reveals that the Brady Act seriously needs a universal, uniform system of background checks for every firearm sale, whether online or offline, whether by professional arms dealers or "private" vendors.

Stage 1: Analyzing the Problem (Welsh & Harris, 2015, p. 217):

1. Describe the Problem

While the Brady Act has made strides in reduction of gun deaths in the United States, there are still serious gaps in the law. Suicides and homicides by firearm are solidly among the top ten causes of injury deaths in the United States. According to the latest published information from the Centers for Disease Control and Prevention, in 2014 in the United States: suicide by firearm accounted for 21,334 deaths and was the 4th leading cause of injury deaths; and homicide by firearm accounted for 10,945 deaths and was the 6th leading cause of injury deaths (U.S. Centers for Disease Control and Prevention, n.d.). Homicide/suicide by firearm are nonfactors in the

The proliferation of firearms feeds the high rates of suicide/homicide by firearm in the United States. According to multiple studies, unintentional firearm deaths, suicides by firearms and homicides by firearms all occur in far greater frequency as the number of firearms increases (Webster, Vernick, & Bloomberg, 2013, pp. 11-15). Furthermore, the United States holds an unenviable position among developed nations, as "year after year, many more Americans are dying by gunfire than people in any other high-income nation" (Webster, Vernick, & Bloomberg, 2013, p. 15). In view of the high rate of firearms deaths and their intimate relation with the high number of firearms in this country, experts have discerned that the Brady Act is inadequate in several aspects:

a. The lack of required background checks for all gun sales, including private sales at gun shows and online (Law Center to Prevent Gun Violence, 2012).

b. The lack of strong federal law criminalizing gun trafficking (Kessler & Trumble, 2013);

c. The ready availability of military-style weapons and high-capacity magazines with more than 10 rounds (Webster, Vernick, & Bloomberg, 2013, p. 148).

d. The Tiahrt order passed by Congress and preventing the public from knowing the identities of gun traffickers and how they operate (Webster, Vernick, & Bloomberg, 2013, p. 137).

For purposes of this planning and analysis only the lack of required background checks for all gun sales, including private sales at gun shows and online will be addressed.

2. Describe the history of the problem:

The lack of background checks for private gun sales has existed since the Brady Act's enactment in 1993 (Law Center to Prevent Gun Violence, 2012). The original intent was to allow members of the same family, friends and neighbors to sell firearms to each other without the burden of running background checks. However, gun dealers learned to take advantage of this gap. The problem has only worsened over time. When the Brady Act was enacted, there were merely 130 web sites; as of 2012, there were 634 million web sites (Kessler & Trumble, 2013). Gun control proponents have kept track of this huge loophole and its effects on sales. Analyzing internet sales in 10 states listed on one website in June and July of 2013, researchers found 15,000+ firearms, 1/3 semi-automatic firearms - for "private" sale without background checks at any point in time (Kessler & Trumble, 2013).

3. Examine potential causes of the problem:

The lack of adequate background checks is traceable to at least two causes: the exploitation of a family/friend/neighbor loophole by sellers wishing to defeat the federal background check requirement; the wildly burgeoning internet, including sales of practically innumerable products, including firearms; and the refusal of 10 state senators to close that online loophole for Alaska, Arizona, Arkansas, Georgia, Montana, Nevada, New Hampshire, North Dakota, Ohio, and Tennessee (Kessler & Trumble, 2013);

4. Previous interventions that have tried to change this problem.

There one notable previous federal intervention attempting to address the lack of background checks. In April 2013, U.S. Senators Joe Manchin (D-WV), Pat Toomey (R-PA), Mark Steven Kirk (R-IL) and Charles E. Schumer (D-NY) cosponsored Senate Amendment 715 to Senate bill 649 -- "Safe Communities, Safe Schools Act of 2013," a bipartisan bill attempting to close the loophole allowing strangers to sell firearms without background checks, both at brick-and-mortar gun shows and online. This Manchin-Toomey bill needed 60 votes to pass in the Senate but was defeated by a vote of 54-46 (U.S. Library of Congress, 2013). In addition, in answer to Congressional inaction and mass shootings such as those at Sandy Hook Elementary School in Connecticut, President Obama took a number of executive orders to strengthen gun controls, including background checks, on January 5, 2016 (Nelson & Fields, 2016). Acknowledging that "It won't happen with this Congress. It won't happen during my presidency," President Obama nonetheless signed 23 executive orders on gun control. Five of the orders seek to shrink some holes in the federal background check system by urging cooperation and training and proposing the addition of 230 more FBI examiners to process background checks. The current system reportedly uses outdated technology; h9owever about 91% of the daily 63,000 background check requests are processed within the allowed 3-day window. The President also seeks to tighten the "gun show loophole" by proposing required background checks for sales by any individual "engaged in the business" of selling firearms, whether or not he/she is a commercial seller. While the President's executive orders were encouraging to gun control advocates, the President cannot fund any of his suggested measures. Funding necessarily comes from Congress and Congressional opposition to the President's actions is crystal clear. Representative John Culbertson (R-Texas) stated, "I have formally notified Attorney General Lynch that I will aggressively protect our Second Amendment rights using Congress' power of the purse. I notified the attorney general that if the Department of Justice attempted to create new restrictions on our constitutional rights that I would use every tool at my disposal to immediately restrict their access to federal funding" (Ungar, 2016). In addition to federal intervention, a number of states have addressed background checks and other aspects of gun control on the state-legislature level, including California.

5. Identify relevant stakeholders:

The problem of the lack of background checks for "private sales" offline and online has several stakeholders. One group of stakeholders is the individuals disqualified from firearm ownership by the background checks, including someone:

a. Under indictment or information in any court for a felony, or any other crime, for which the judge could imprison that person for more than 1 year;

b. Convicted in any court of a felony, or any other crime, for which the judge could have imprisoned that person for more than 1 year;

c. A fugitive from justice;

d. An unlawful use of or addicted to marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance;

e. Ever adjudicated mentally defective or ever committed to a mental institution;

f. Discharged from the Armed Forces under dishonorable conditions;

g. Subject to court order retraining that person from harassing, stalking, or threatening that person's child or an intimate partner or child of such partner;

h. Convicted in any court of a misdemeanor crime of domestic violence;

i. Has ever renounced his/her United States citizenship;

j. An alien illegally in the United States;

k. An alien admitted to the United States under a nonimmigrant visa and who does not fall under one of the exceptions allowing licensing (U.S. Department of Justice - Bureau of Alcohol, Tobacco, Firearms and Explosives, 2011).

Another group of stakeholders are gun advocacy groups, such as the National Rifle Association. Those who would be excluded by background checks and the National Rifle Association would want as broad an interpretation of the 2nd Amendment as possible.

Gun control groups, such as Third Way, the Brady Campaign to Prevent Gun Violence and Americans for Responsible Solutions, form another group of stakeholders (Haberman, 2016). These groups argue for tighter gun safety measures and certainly argue for background checks eliminating the "private sale" loophole at actual gun shows and on the web.

6. Conduct a systems analysis:

The justice system creates, contributes to and/or maintains the lack of required background checks for all gun sales, including private sales at gun shows and online, to the extent that courts limit or even strike down background checks for all gun sales. Courts are called upon, both on state and federal levels, to interpret laws, and the U.S. Supreme Court is the highest interpreter of laws. One noteworthy example of the justice system's affect regarding background checks is Printz, Sheriff/Coroner, Ravalli County, Montana V. United States (95-1478), 521 U.S. 898 (1997), in which the U.S. Supreme Court struck down certain interim provisions of the Brady Act specifically regarding background searches. The Chief Law Enforcement Officers (CLEOs) for counties in Montana and Arizona separately challenged the constitutionality of the Brady Act's interim provisions requiring them to conduct background checks and perform related tasks until the national background system became operative challenging the interim provisions' constitutionality. In each case, the District Court held that the background check provision was unconstitutional, but concluded that it was severable from the remainder of the Act, leaving a voluntary background check system in place. The Ninth Circuit reversed, finding none of the interim provisions unconstitutional. The U.S. Supreme Court held that the interim background check requirement was unconstitutional (Cornell University Law School, 1997). However, in a 2008 case, District of Columbia v. Heller (No. 07-290), 478 F. 3d 370, affirmed (2008), the U.S. Supreme Court ruled that background checks do not violate the 2nd Amendment (Cornell University Law School, 2008). Furthermore, on the state level, courts throughout the United States interpret state laws regarding background checks, upholding, striking down and/or modifying those laws.

7. Identify barriers to change and supports for change:

Barriers to change in the form of required background checks for all gun sales, including private sales at gun shows and online, would logically include: stakeholders disqualified by required background checks, such as felons, etc.; gun advocacy groups, such as the NRA; and "private" merchants who currently sell firearms without the need for background checks. Supports for change would logically include: gun control groups, such as Third Way, the Brady Campaign to Prevent Gun Violence and Americans for Responsible Solutions.

Stage 2: Setting Goals and Objectives (Welsh & Harris, 2015, pp. 217-218):

1. Write goal statements specifying the general outcome to be obtained.

The goals statement is the closure of private-sale loopholes by requiring all gun sales, whether in primary or secondary markets, brick-and-mortar or online, be subject to background checks.

2. Write specific outcome objectives for each goal:

The specific outcome objectives of the closure of private-sale loopholes are: the key result of plugging the existing gaps in the Brady Act's background check requirements; the target population is all individuals who would properly be disqualified from gun ownership; time frame for measuring the impact and specific criterion for measuring impact would be a yearly assessment of the number of individuals refused gun sales by background checks in so-called "private" sales that are currently exempt from background checks.

3. Participation from different individuals and agencies in goal setting.

Considering this step from the top down, one would seek the participation of: the President of the United States; the U.S. Congress; the U.S. Supreme Court; the U.S. Justice Department, including the Bureau of Alcohol, Tobacco and Firearms and the U.S. Attorney General; federal law enforcement agencies; the legislatures of all 50 states; the governors of all 50 states; state and local law enforcement; state and local courts; firearm sellers; and firearm purchasers.

4. Specify an impact model:

The impact model is the undiluted application of the U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Form 4437 (U.S. Department of Justice - Bureau of Alcohol, Tobacco, Firearms and Explosives, 2011) requirement to all gun sales, whether in primary or secondary markets, in the United States. By requiring uniform background checks in all gun sales, this measure will eliminate the loopholes allowing otherwise-disqualified individuals from legally purchasing guns in the United States.

5. Identify compatible and incompatible goals in the larger system:

The values of stakeholders such as persons disqualified by background checks and gun advocacy groups overlap in that they desire the least restriction possible on gun possession and use in the United States. The values of those stakeholders conflict with those of gun control groups, such as Third Way, the Brady Campaign to Prevent Gun Violence and Americans for Responsible Solutions, who seek to restrict gun possession and use by individuals who would be disqualified by the standards of the AFT Form 4473.

6. Identify needs and opportunities for interagency collaboration:

Nationwide success of this program/policy will require the cooperation and participation of: the President of the United States; the U.S. Congress; the U.S. Supreme Court; the U.S. Justice Department, including the Bureau of Alcohol, Tobacco and Firearms and the U.S. Attorney General; federal law enforcement agencies; the legislatures of all 50 states; the governors of all 50 states; state and local law enforcement; state and local courts; firearm sellers; and firearm purchasers.

Stage 3: Designing the Program or Policy (Welsh & Harris, 2015, p. 218):

1. Choose an intervention approach:

The intervention approach will include required application of ATF Form 4473 at every sale, whether primary or secondary, whether by gun dealers or "private" vendors and whether at a physical location or online. Both policy and a strictly enforced program will be employed. The State of California requires comprehensive background checks and its system seems workable. All firearm transactions must go through a Federal Firearms Licensed (FFL), who charges a fee for the background check. Enforcement is aided by requiring that every handgun be registered to its owner, thereby holding owners accountable for the disposition of every handgun. In addition, the uniform background check system can be enforced by law-enforcement presence and oversight of all firearms transactions and undercover "buy and bust" sting operations by police officers. Finally, the most daunting task is saved for last: assembling, training, funding and maintaining a web task force to constantly monitor firearms transactions online, assemble and report data to centralized federal agencies and shut down web sites violating the requirement of background checks and tracing sales from point of origin to point of delivery.

2. Program design:

The target population will be every firearms seller and every firearms purchaser. Recruitment of the target populations will be determined by the act of selling firearms, whether primary or secondary, whether by gun dealers or "private" vendors and whether at a physical location or online. Use of background checks at the point of sale will consist of current procedures but will be applied to every firearms sale. All firearm transactions must go through a Federal Firearms Licensed (FFL), who charges a fee for the background check. Enforcement is aided by requiring that every handgun be registered to its owner, thereby holding owners accountable for the disposition of every handgun. In addition, the uniform background check system can be enforced by law-enforcement presence and oversight of all firearms transactions and undercover "buy and bust" sting operations by police officers. At the point of background check by the FBI, hundreds of additional agents will be needed to review completed ATF Form 4473 for each prospective sale. Finally, web-based sales of firearms can be monitored, analyzed and ideally thwarted by a web task force tailored for addressing web-based transactions.

3. Policy design:

The target population will be every firearms seller and every firearms purchaser. Recruitment of the target populations will be determined by the act of selling firearms, whether primary or secondary, whether by gun dealers or "private" vendors and whether at a physical location or online. Use of background checks at the point of sale will consist of current procedures but will be applied to every firearms sale. At the point of background check by the FBI, hundreds of additional agents will be needed to review completed ATF Form 4473 for each prospective sale.

Stage 4: Action Planning (Welsh & Harris, 2015, p. 218):

1. Identify resources needed and make cost projections:

Funding will be required for additional 4473 forms, training of firearm sellers for background checks, police presence and oversight of firearm sales, "buy and bust" police stings, police seizure of unregistered firearms within the U.S. borders, a web task force and additional FBI agents to review background checks within the 3-day period. Funding will come from FFL fees, background check fees, gun registration fees, and Congressional mandate.

2. Plan to acquire or reallocate resources

Funding will come from FFL fees, background check fees, gun registration fees, and Congressional mandate. Since this is federally mandated, the lion's share of funding will originate from Congress and will be allocated to the States, initially according to the number of current gun sales attributable to each state; once the new program is instituted, funds will be allocated by Congress to the States according to the numbers of background checks submitted per state.

3. Specify dates and assign responsibilities to staff members

Task

Start

End

Staff

Background check at point of sale

01/01/2017

FFL at point of firearm transaction

Oversight of gun sales

01/01/2017

Local and federal law enforcement

Monitoring web-based transactions

01/01/2017

Web task force

Review of background checks

01/01/2017

FBI

Seizure of unregistered weapons

01/01/2017

Local and federal law enforcement

"Buy and bust" stings

01/01/2017

Local and federal law enforcement

4. Mechanisms of self-regulation:

Uniform instructive materials from the U.S. Justice Department, Bureau of Alcohol, Tobacco and Firearms; mandatory federal, state and local law enforcement training for oversight of firearms transactions, seizure of unregistered weapons and "buy and bust" stings; mandatory FBI training regarding completion of background checks.

5. Plan to build and maintain support:

Resistance would be anticipated from stakeholders such as firearms sellers resistant to FFL requirements, individuals who would be disqualified from purchasing firearms by background check, and gun advocacy groups. There must be a plan to educate the public about the current gaps in Brady Act background checks; association of greater numbers of guns with greater numbers of violent deaths; and desirability of uniform background checks. There will still be some resistance from the abovementioned stakeholders; however, with public support, adequate funding, sufficient staff and adequate training, the program/policy should thrive.