[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 2826 Introduced in Senate (IS)]







107th CONGRESS
  2d Session
                                S. 2826

 To improve the national instant criminal background check system, and 
                          for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 30, 2002

   Mr. Schumer (for himself, Mr. Craig, Mr. Kennedy, and Mr. McCain) 
introduced the following bill; which was read twice and referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
 To improve the national instant criminal background check system, and 
                          for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Our Lady of Peace Act''.

SEC. 2. FINDINGS.

    The Congress finds the following:
            (1) Since 1994, more than 689,000 individuals have been 
        denied a gun for failing a background check.
            (2) States that fail to computerize their criminal and 
        mental illness records are the primary cause of delays for 
        background checks. Helping States automate their records will 
        reduce delays for law-abiding gun owners.
            (3) 25 States have automated less than 60 percent of their 
        felony criminal conviction records.
            (4) 33 States do not automate or share disqualifying mental 
        health records.
            (5) In 13 States, domestic violence restraining orders are 
        not automated or accessible by the national instant criminal 
        background check system.
            (6) In 15 States, no domestic violence misdemeanor records 
        are automated or accessible by the national instant criminal 
        background check system.

                    TITLE I--TRANSMITTAL OF RECORDS

SEC. 101. ENHANCEMENT OF REQUIREMENT THAT FEDERAL DEPARTMENTS AND 
              AGENCIES PROVIDE RELEVANT INFORMATION TO THE NATIONAL 
              INSTANT CRIMINAL BACKGROUND CHECK SYSTEM.

    (a) In General.--Section 103(e)(1) of the Brady Handgun Violence 
Prevention Act (18 U.S.C. 922 note) is amended--
            (1) by inserting ``electronically'' before ``furnish''; and
            (2) by adding at the end the following: ``The head of each 
        department or agency shall ascertain whether the department or 
        agency has any records relating to any person described in 
        subsection (g) or (n) of section 922 of title 18, United States 
        Code and on being made aware that the department or agency has 
        such a record, shall make the record available to the Attorney 
        General for inclusion in the system to the extent the Attorney 
        General deems appropriate. The head of each department or 
        agency, on being made aware that the basis under which a record 
        was made available under this section does not apply or no 
        longer applies, shall transmit a certification identifying the 
        record (and any name or other relevant identifying information) 
        to the Attorney General for removal from the system. The 
        Attorney General shall notify the Congress on an annual basis 
        as to whether the Attorney General has obtained from each such 
        department or agency the information requested by the Attorney 
        General under this subsection.''.
    (b) Immigration Records.--The Commissioner of the Immigration and 
Naturalization Service shall cooperate in providing information 
regarding all relevant records of persons disqualified from acquiring a 
firearm under Federal law, including but not limited to, illegal 
aliens, visitors to the United States on student visas, and visitors to 
the United States on tourist visas, to the Attorney General for 
inclusion in the national instant criminal background check system.

SEC. 102. REQUIREMENTS TO OBTAIN WAIVER.

    (a) In General.--Beginning 5 years after the date of the enactment 
of this Act, a State shall be eligible to receive a waiver of the 10 
percent matching requirement for National Criminal History Improvement 
Grants under the Crime Identification Technology Act of 1988 if the 
State provides at least 95 percent of the information described under 
subsections (b) and (c). The length of such a waiver shall not exceed 5 
years.
    (b) Eligibility of State Records for Submission to the National 
Instant Criminal Background Check System.--
            (1) Requirements for eligibility.--The State shall make 
        available the following information established either through 
        its own database or provide information to the Attorney 
        General:
                    (A) The name of and other relevant identifying 
                information relating to each person disqualified from 
acquiring a firearm under subsection (g) or (n) of section 922 of title 
18, United States Code, and each person disqualified from acquiring a 
firearm under applicable State law.
                    (B) The State, on being made aware that the basis 
                under which a record was made available under 
                subparagraph (A) does not apply or no longer applies, 
                shall transmit a certification identifying the record 
                (and any name or other relevant identifying 
                information) to the Attorney General for removal from 
                the system.
                    (C) Any information provided to the Attorney 
                General under subparagraph (A) may be accessed only for 
                background check purposes under section 922(t) of title 
                18, United States Code.
                    (D) The State shall certify to the Attorney General 
                that at least 95 percent of all information described 
                in subparagraph (A) has been provided to the Attorney 
                General in accordance with subparagraph (A).
            (2) Application to persons convicted of misdemeanor crimes 
        of domestic violence.--(A) For purposes of paragraph (1), a 
        person disqualified from acquiring a firearm as referred to in 
        that paragraph includes a person who has been convicted in any 
        court of any Federal, State, or local offense that--
                    (i) is a misdemeanor under Federal or State law or, 
                in a State that does not classify offenses as 
                misdemeanors, is an offense punishable by imprisonment 
                for a term of 1 year or less (or punishable by only a 
                fine);
                    (ii) has, as an element of the offense, the use or 
                attempted use of physical force (for example, assault 
                and battery), or the threatened use of a deadly weapon; 
                and
                    (iii) was committed by a current or former spouse, 
                parent, or guardian of the victim, by a person with 
                whom the victim shares a child in common, by a person 
                who is cohabitating with or has cohabitated with the 
                victim as a spouse, parent, or guardian, (for example, 
                the equivalent of ``common-law marriage'' even if such 
                relationship is not recognized under the law), or a 
                person similarly situated to a spouse, parent, or 
                guardian of the victim (for example, two persons who 
                are residing at the same location in an intimate 
                relationship with the intent to make that place their 
                home would be similarly situated to a spouse).
            (B) A person shall not be considered to have been convicted 
        of such an offense for purposes of subparagraph (A) unless--
                    (i) the person is considered to have been convicted 
                by the jurisdiction in which the proceeding was held;
                    (ii) the person was represented by counsel in the 
                case, or knowingly and intelligently waived the right 
                to counsel in the case; and
                    (iii) in the case of a prosecution for which a 
                person was entitled to a jury trial in the jurisdiction 
                in which the case was tried--
                            (I) the case was tried by a jury; or
                            (II) the person knowingly and intelligently 
                        waived the right to have the case tried by a 
                        jury, by guilty plea, or otherwise.
            (C) A person shall not be considered to have been convicted 
        of such an offense for purposes of subparagraph (A) if the 
        conviction has been expunged or set aside, or is an offense for 
        which the person has been pardoned or has had civil rights 
        restored (if the law of the jurisdiction in which the 
        proceedings were held provides for the loss of civil rights 
        upon conviction of such an offense) unless the pardon, 
        expungement, or restoration of civil rights expressly provides 
        that the person may not ship, transport, possess, or receive 
        firearms, and the person is not otherwise prohibited by the law 
        of the jurisdiction in which the proceedings were held from 
        receiving or possessing any firearms.
    (c) Application to Persons Who Have Been Adjudicated as a Mental 
Defective or Committed to a Mental Institution.--
            (1) Requirement.--The requirement of this subsection is 
        that the State shall provide the name of and other relevant 
        identifying information relating to persons adjudicated as 
        mental defective or those committed to mental institutions to 
        the Attorney General for inclusion in the national instant 
        criminal background check system.
            (2) Definition.--For purposes of paragraph (1), an 
        adjudication as a mental defective occurs when a court, board, 
        commission, or other government entity determines that an 
        individual is mentally retarded or of marked subnormal 
        intelligence, mentally ill, or mentally incompetent, 
        including--
                    (A) defendants in criminal cases adjudicated as not 
                guilty by reason of insanity, or found incompetent to 
                stand trial;
                    (B) individuals who are a danger to others as a 
                result of a mental disorder or illness;
                    (C) individuals involuntarily committed to a mental 
                institution by a court, board, commission, or other 
                authority;
                    (D) individuals committed because they lack the 
                mental capacity to contract or manage their own 
                affairs; and
                    (E) individuals found to be a danger to themselves 
                as a result of a mental disorder or illness.
            (3) Exception.--This subsection does not apply to--
                    (A) a person--
                            (i) in a mental institution for 
                        observation; or
                            (ii) voluntarily committed to a mental 
                        institution; or
                    (B) information protected by doctor-patient 
                privilege.
            (4) Privacy protections.--For any information provided 
        under the national instant criminal  background check system, 
the Attorney General shall work with States and local law enforcement 
and the mental health community to establish regulations and protocols 
for protecting the privacy of information provided to the system.
            (5) State authority.--Notwithstanding any other provision 
        of this subsection, a State may designate that records 
        transmitted under this subsection shall be used only to 
        determine eligibility to purchase or possess a firearm.
    (d) Attorney General Report.--Not later than January 31 of each 
year, the Attorney General shall submit to the Committee on the 
Judiciary of the Senate and the Committee on the Judiciary of the House 
of Representatives a report on the progress of States in automating the 
databases containing the information described in subsections (b) and 
(c) and in providing that information pursuant to the requirements of 
such subsections.

SEC. 103. IMPLEMENTATION GRANTS TO STATES.

    (a) In General.--From amounts made available to carry out this 
section, the Attorney General shall make grants to each State, in a 
manner consistent with the national criminal history improvement 
program, which shall be used by the State, in conjunction with units of 
local government and State and local courts, to establish or upgrade 
information and identification technologies for firearms eligibility 
determinations.
    (b) Use of Grant Amounts.--Grants under this section may only be 
awarded for the following purposes:
            (1) Building databases that are directly related to checks 
        under the national instant criminal background check system 
        (NICS), including court disposition and corrections records.
            (2) Assisting States in establishing or enhancing their own 
        capacities to perform NICS background checks.
            (3) Improving final dispositions of criminal records.
            (4) Supplying mental health records to NICS.
            (5) Supplying court-ordered domestic restraining orders and 
        records of domestic violence misdemeanors (as defined in 
        section 102 of this Act) for inclusion in NICS.
    (c) Condition.--As a condition of receiving a grant under this 
section, a State shall specify the projects for which grant amounts 
will be used, and shall use such amounts only as specified. A State 
that violates this section shall be liable to the Attorney General for 
the full amount granted.
    (d) Authorization of Appropriations.--There is authorized to be 
appropriated to carry out this section $250,000,000 for each of fiscal 
years 2004, 2005, and 2006.
    (e) User Fee.--The Federal Bureau of Investigation shall not charge 
a user fee for background checks pursuant to section 922(t) of title 
18, United States Code.

 TITLE II--FOCUSING FEDERAL ASSISTANCE ON THE IMPROVEMENT OF RELEVANT 
                                RECORDS

SEC. 201. CONTINUING EVALUATIONS.

    (a) Evaluation Required.--The Director of the Bureau of Justice 
Statistics shall study and evaluate the operations of the national 
instant criminal background check system. Such study and evaluation 
shall include, but not be limited to, compilations and analyses of the 
operations and record systems of the agencies and organizations 
participating in such system.
    (b) Report on Grants.--Not later than January 31 of each year, the 
Director shall submit to Congress a report on the implementation of 
subsections (b) and (c) of section 102 of this Act.
    (c) Report on Best Practices.--Not later than January 31 of each 
year, the Director shall submit to Congress, and to each State 
participating in the National Criminal History Improvement Program, a 
report of the practices of the States regarding the collection, 
maintenance, automation, and transmittal of identifying information 
relating to individuals described in subsection (g) or (n) of section 
922 of title 18, United States Code, by the State or any other agency, 
or any other records relevant to the national instant criminal 
background check system, that the Director considers to be best 
practices.

TITLE III--GRANTS TO STATE COURTS FOR THE IMPROVEMENT IN AUTOMATION AND 
                   TRANSMITTAL OF DISPOSITION RECORDS

SEC. 301. GRANTS AUTHORIZED.

    (a) In General.--From amounts made available to carry out this 
section, the Attorney General shall make grants to each State for use 
by the chief judicial officer of the State to improve the handling of 
proceedings related to criminal history dispositions and restraining 
orders.
    (b) Use of Funds.--Amounts granted under this section shall be used 
by the chief judicial officer only as follows:
            (1) For fiscal year 2004, such amounts shall be used to 
        carry out assessments of the capabilities of the courts of the 
        State for the automation and transmission to State and Federal 
        record repositories the arrest and conviction records of such 
        courts.
            (2) For fiscal years after 2004, such amounts shall be used 
        to implement policies, systems, and procedures for the 
        automation and transmission to State and Federal record 
        repositories the arrest and conviction records of such courts.
    (c) Authorization of Appropriations.--There are authorized to be 
appropriated to the Attorney General to carry out this section 
$125,000,000 for each of fiscal years 2004, 2005, and 2006.
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