Firearm Background Checks in Colorado In Fulfillment of Winter 2013 Graduation University of Denver Ariel Bravo

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Table of Contents

Executive Summary .........................................................................................................................3

Overview ..........................................................................................................................................4

Firearm Ownership ......................................................................................................................7

Federal Regulations .....................................................................................................................9

National Criminal Background Check System ...........................................................................12

Colorado House Bill 1048 ..........................................................................................................16

Case Study: Georgia and Oregon ..............................................................................................19

Methods..........................................................................................................................................22

Proposed Solution ..........................................................................................................................23

Weaknesses and Limitations ..........................................................................................................31

Cost-Benefit Analysis ....................................................................................................................32

Sensitivity Analysis .......................................................................................................................34

Social Costs and Benefits ...........................................................................................................34

Rural verse Urban Cost ..............................................................................................................36

Political Viability .......................................................................................................................37

Unintended Consequences .........................................................................................................38

Strategic Recommendation ............................................................................................................39

Appendix ........................................................................................................................................41

References ......................................................................................................................................49

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Executive Summary

Policy seeking to regulate firearms is a persistent effort to balance rights outlined in the

Second Amendment over against the enforcement of laws and regulations intended to protect the

safety of the public. Since 1982, 62 mass shootings have occurred1. Each additional occurrence

of unlawful gun utilization has increased the public opinion to make modifications to current

laws, hoping to increase safety and mitigate future instances of gun violence.

However, state budgets need consideration when discussing implementing any new

policies, since it is the state that has to fund these programs. For the most efficient utilization of

public resources, the State of Colorado can eliminate the Colorado Bureau of Investigation

operations as a Point-of-Contact in the Federal system to save nearly $2 million annually,

without undermining public safety.  The  State  conducts  it’s own separate background check that

duplicates the Federal background check and wastes money that could be better utilized in other

state programs. There are a number of State programs that are inadequately funded currently, due

to the TABOR amendment, which limits the revenue the State  can  collect  to  finance  it’s

expenses. Critical money saved from eliminating the State-run background checks would benefit

other programs.

Completely eliminating the Colorado Bureau of Investigation operations in performing

background checks for the State is not the best option for Colorado due to public opinion

surrounding firearms currently. The State should establish a database for mental health records

that would also need to be checked, in addition to the Federal criminal background check, to

ensure those disqualified from owning a firearm are unable to purchase them.

1 Arosen, Gavin, Follman, Mark, & Pan, Deanna. "A Guide to Mass Shootings in America." Mother Jones, December 15, 2012, http://www.motherjones.com/politics/2012/07/mass-shootings-map

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Problem Statement: Resources spent on the Colorado Bureau of Investigation's operations as a point of contact for the National Instant Criminal Background check are duplicative and hinder efficient utilization of State expenditures.

Overview

There are no perfect, absolute, or definitive answers to the current gun dilemma in the

United States. However, there are certainly means of utilizing public resources more efficiently

without reducing safety barriers already in place. Gun laws have always aimed to ensure that

firearms are used safely while also protecting citizen’s rights as delineated by the Second

Amendment to the Constitution. The Second Amendment state,  “A  well  regulated  militia,  being  

necessary to the security of a free state, the right of the people to keep and bear arms, shall not be

infringed.2”  This Amendment has been widely debated as to the extent that firearm ownership is

protected, and where limitations may lie. It is a delicate balance between rights outlined by the

Constitution and the interest of the State, which is the safety of citizens. States have a compelling

interest to place reasonable restrictions on gun ownership in order to accomplish the goal of

providing safety to their citizenry, using such means as background checks. While a “silver

bullet” solution is often the aspiration of firearms policy i.e., finding a balance between rights

and reasonable restrictions for protection purposes, achieving such is unrealistic.

Analysis of a sensitive issue, like firearm regulations, goes far deeper than what the data

we have may represent; it is a topic saturated with the complex variables of human life, crime,

and cultural values. Monetary transactions are far from enough to tell a complete story of the

U.S. firearms industry. Colorado unfortunately knows well the tragic impact guns can have on

the lives of those who have never owned or used firearms,  given  the  State’s  experience  with  

2 U.S. Constitution, amend. 2.

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mass shootings. Having the goal in mind of providing maximum safety for both citizens who

own and do not own guns, background checks are one of the most relied on methods used by

government to protect the public from dangerous and mentally unstable individuals.

The U.S. Supreme Court has ruled that placing reasonable restrictions on acquiring and

using firearms is constitutional, so long as no part of the Second Amendment is directly

prohibited3. The case of District of Columbia v. Heller protects the rights of citizens to bear

arms, for traditionally lawful purposes, but also states that reasonable restrictions are allowable

for safety considerations. Therefore, an opportunity presents itself in how to make more efficient

background checks that still enable the vast majority of gun owners to exercise their

constitutional right to gun ownership.

There is one clear answer to any question about guns; they are not going away. Lessons

can be learned from the time of alcohol prohibition, where an attempt to eradicate another strong

industry was made. Those enthusiasts in the industry found illegal avenues to continue their

habit, which was more dangerous than the initial product4. Prohibition was the result of the

country being perceived as overly indulgent with alcohol and participating in dissolute activities

that were associated with drunkenness and saloons5. The movement found momentum in

demonizing alcohol and what it represented, such as the absent, drunk father, in the same manner

that firearms are sometimes characterized by6. However, the Prohibition era allowed for crime

organizations to develop effective means of organization and marketing to provide their

customers with alcohol, and even helped to form alliances between multiple crime organizations,

3 District of Columbia v. Heller, 554 U.S. 570 (2008) 4 Gerstein, Dean R., and Mark H. Moore. Alcohol and Public Policy: Beyond the Shadow of Prohibition. Washington D.C.: National Academy Press, 1981. (accessed December 30, 2012). 5 Okrent, Daniel. Last Call: The Rise and Fall of Prohibition. New York, NY: Scribner, 2010. Pg 11-13. 6 Ibid. Pg. 15

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effectively increasing illegal activity7. Prohibition meant big money for anyone willing to

participate in the illicit alcohol market. It is approximated that in 1924 bootleg sales generated

the sum of $3.6 million,8 all of which was untaxed revenue. Due to the vast amount of wealth

that one could acquire through the trafficking of alcohol, a rise in violence and crime also

accompanied this time, with  gangsters  hiring  “trigger  men”  to  eradicate competition9.

Furthermore, Prohibition allowed for all the potential tax revenue the Federal government could

have collected to go overseas and benefit the people of another nation10.

Prohibition lasted for thirteen years, ten months, and nineteen days, using a vast amount

of public resources11. Proponents of Prohibition boasted that the government spent $141 million

in enforcement, but collected $460 million in fines and penalties12. What these numbers fail to

convey, however, are the social marginal costs13 that society had to incur during prohibition,

beyond any numeric descriptors could illustrate, being those of increased violence and a reduce

revenue collection for the federal government. After Prohibition was repealed by the twenty-first

amendment, the federal government collected $258,911,332 in alcohol taxes alone14. Prohibition,

while well intended, lead to an immense increase in criminal and illicit activities, none of which

benefited the nation. Many gun regulations follow the same path; where they are well intended,

however fail to accomplish any substantial changes to public safety and, potentially, create more

harm than good.

7 Ibid. Pg 272 8 Ibid, Pg. 274 9 Ibid. Pg. 276 10 Ibid. Pg. 268 11 Ibid. Pg. 384 12 Ibid. Pg. 331 13 The Social Marginal Cost is the entire cost that society has to incur as a result of policy option. This cost includes monetary aspects, such as supply and demand, but also includes the costs to the external environment for society. 14 Ibid. Pg. 361

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Beyond the unintended consequences of Prohibition, there was a Federal assault weapon

ban from 1994-2004, which accomplished little. The law was riddled with loopholes, including

an important one that any assault weapon or magazine that was manufactured before the law

went into effect in 1994 was perfectly legal to own or resell15. That was a huge exemption since

at the time there were roughly 1.5 million assault weapons and more than 24 million high-

capacity magazines in private hands16. Firearm regulation requires special scrutiny, so as not to

repeat a mistake of the past.

Firearm Ownership

A Gallup poll found that four in ten Americans reported to having a gun in their home,

and nearly half of men reported that they personally owned a gun (47%). There is a difference

among party identification as to the rationale for owning a firearm. The same poll stated that

Democrats are more likely to own a gun for protection against crime, whereas Republicans are

more likely to own a gun for recreational purposes, like hunting. According to the FBI, firearm

purchases are increasing significantly. The Federal Bureau of Investigation said in 2011 their

office handled 16.5 million inquiries in regards to background checks for the purpose of firearm

purchases. This is an increase of approximately 15% from 201017.

In the same report, the FBI said that there has been a continual increase in firearm

purchases since 2006. In Colorado, specifically, gun purchases spiked in the months following a

public shooting. Within two weeks of the 2012 movie theater shooting in Aurora, Colorado, gun

15 Plumer, Brad. "Everything you need to know about the assault weapons ban, in one post." The Washington Post, December 17, 2012, http://www.washingtonpost.com/blogs/wonkblog/wp/2012/12/17/everything-you-need-to-know-about-banning-assault-weapons-in-one-post/ (accessed December 30, 2012). 16 Ibid. 17 Kelleher, James. (2012, January 5). "FBI data shows spike in U.S. firearm purchases in 2011." Reuters. http://www.reuters.com/article/2012/01/05/us-usa-firearms-backgroundchecks-idUSTRE80407P20120105

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related background checks surged with a 41% increase18. Whether or not the perceived

justification is correct, people feel that there is an indispensable desire to own firearms for

personal safety.

Gun ownership, compared to any other country in the world, is the highest in the United

States. The United States is home to only 5% of the global population, but owns roughly 35-

50% of all civilian guns in the world19. About 34.7% of Colorado residents own a gun, which

puts the state at a rank of 36th in the country for gun ownership20. The leading state for gun

ownership is a neighbor of Colorado, where Wyoming residents have a gun ownership rate of

62.8%.

The gun industry is a strong, robust business in the United States. This industry accounts

for a total of 209,750 jobs, creating $9,828,528,189 in wages21. What is more important, from the

perspective of government, is the tax revenue generated from this industry. The chart below

shows the tax revenue from the firearms industry in 2012 alone. The revenue the firearms

industry generates for the federal and state government come from business taxes, such as

property, income, and sales based levies, and excise taxes22.

Tax Impact23 Business Tax Excise Tax Federal Tax $2,503,904,614 $487,998,107 State Tax $2,071,203,695 Total Tax $4,575,108,309 $487,998,107

18 Bender, Michael. (2012, July 24). "Gun Sales Spike After 12 Killed in Colorado Movie Theater." Bloomberg. http://www.bloomberg.com/news/2012-07-24/gun-sales-increase-in-colorado-after-12-killed-in-movie-theater.html 19Rogers, Simon. (2012, July 22). "Gun homicides and gun ownership listed by country." The Guardian. http://www.guardian.co.uk/news/datablog/2012/jul/22/gun-homicides-ownership-world-list 20 Bollier, S., & Haddad, M. (2012, July 26). Interactive: US, Yemen lead the world in guns. Aljazeera. Retrieved from http://www.aljazeera.com/indepth/interactive/2012/07/2012726141159587596.html 21 "Firearms and Ammunition Industry Economic Impact Report." National Shooting Sports Foundation. www.nssf.org 22 Ibid. 23 Ibid.

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The gun industry in Colorado accounts directly for 2,676 jobs, paying $85,025,020 in

wages and contributing $264,066,305 in output24. Such figures suggest this industry is clearly

significant to the State, and even more jobs, wages, and output are generated from secondary

market factors. Since guns are not going to disappear in the foreseeable future, some gun

regulations are needed. These regulations are left mostly up to each state. Nevertheless, all states

follow three basic processes when allocating weapons permits and allowing firearms to be

purchased. Each state is allowed to grant permits to citizens that desire to own and carry a

firearm, with the basic standards or regulations set at the Federal level; any further requirements

are set by each sovereign state.

Federal Regulations

For centuries political thinkers have agreed that one of the primary roles for a

government  to  exist  is  to  protect  and  defend  its’  constituency.  Machiavelli  wrote  in  The Prince

that  the  government  existed  to  defend  the  citizen’s  liberties  and  freedoms. Thomas Hobbes

continued this idea, in Leviathan, stating that the  government’s  role  is  to  punish  those  who  act  

unjustly. Hobbes laid out the idea that there is a social contract between the people and their

government, where an agreement is made determining laws of the land and consequences for

those who fail to follow the rules.

The sale and transfers of firearms is regulated by both the Federal government and each

State government. A State is given the right to regulate gun use via the Constitution that allows

for the States to pass laws to protect their citizens. However, individuals are given the right to

possess the weapons, also granted by the Second Amendment in the Constitution25. The Second

Amendment ensures that citizens are able to arm themselves if they feel it necessary, which the

24 Ibid 25 U.S. Constitution, amend. 2.

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Supreme Court has upheld in two recent landmark cases of District of Columbia v. Heller and

McDonald v. Chicago. These  cases  uphold  citizen’s  right  to bear arms as they see necessary,

outside of military obligations, applying gun ownership as an uninfringeable right to be respected

by both the federal and state governments26. Specifically, the case of District of Columbia v.

Heller allows for individuals who are not affiliated with any state-regulated militia, but who wish

to keep firearms for private use in their homes, to do so. The majority opinion, written by Justice

Scalia, stated, “In  the  Second  Amendment’s  clause,  ‘the  right  of the people to keep and bear

Arms,  shall  not  be  infringed’,  the  phrase  ‘the  right  of  the  people’  creates  a  strong  presumption  

that the Second Amendment right is exercised individually and belongs to all Americans.27” He

continued,  “[The  Washington  D.C.  law] violates the Second Amendment as it makes it

impossible for citizens to use those firearms for the core lawful purpose of self-defense.28” The

majority opinion found it to be unconstitutional to restrict firearms for lawful, non-military

related purposes for those who are found to be qualified to own a weapon. The court also

compared the fundamental right to bear arms to that of freedom of speech, where there are

instances where a citizen has the potentially to be more dangerous to society if the right is

uninhibited by any limitations. Therefore those who are deemed untrustworthy with firearms will

loose their right29, rather than if they were able to unrestrictedly exercise that right. For instance,

the court said that the mentally ill, or those with a history of crime, do not have the same right to

access firearms as other citizens given their higher potential to put society in danger.

The regulations that the Federal system provides are primarily related to ensuring that

those individuals that are disqualified cannot gain access to firearms. The Bureau of Alcohol,

26 District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 561 U.S. 3025 (2010) 27 District of Columbia v. Heller, 554 U.S. 570 (2008) (Scalia, A.) Pg. 5-7 28 Ibid. Pg. 58 29 U.S. Federal Bureau of Invesitgation. National Instant Criminal Background Check System. Washington: 2008.

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Tobacco, Firearms, and Explosives (ATF) is the Federal body responsible for the supervision of

the Federal laws concerning firearms. This agency seeks to implement regulations for firearms

that all states must follow, and to centralize information in regards to firearms, such as the

criminal background checks.

There are four important federal regulations. The first is the National Firearms Act of

1934, which imposes a tax on the manufacturing and transfer of firearms and mandates

registration on those guns. This act was aiming to respond to the increase in gun violence that

emerged in the early 20th century, like the greater presences of machine guns, by imposing excise

taxes and mandates the registration of firearms30. Another regulation passed years later with the

Gun Control Act of 1968, where the Federal government sought to regulate the entire firearms

industry, including firearm dealers. The Act was in response to the vast gun violence that

occurred in the 1960s, for example the assassination of President John F. Kennedy. This act

prohibited interstate firearms transfers except for transactions among licensed manufacturers,

dealers and importers, requiring those dealers to obtain a Federal Firearm License (FFL)31. In

addition, there is also the Firearm Owners Protection Act (1986)32 that reforms part of the Gun

Control Act of 1968, where the act reopened interstate sales of certain long guns based on a

quota, and loosened registry requirements33. The Act states;

“No  such  rule  or  regulation  prescribed  after  the  date  of  the  enactment  of  the  Firearms Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, that any system of registration of firearms, firearms owners, or firearms transactions or disposition be established.”

30 National Firearm Act, Sess. 2, ch. 757, 48 Stat. 1236 (1934). 31 Gun Control Act. Pub.L. 90-618, 82 Stat. 1213 (1968) 32 Firearm Owners Protection Act. Pub.L. 99-308, 100 Stat. 449 (1986) 33 U.S. Department of Justice. Bureau of Alcohol, Tobacco, Firearms and Explosives. Federal Firearm Regulation Reference Guide. Washington D.C., 2005.

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The most recent Federal regulation is known as the Brady Law34, named after Jim Brady who

was  President  Ronald  Reagan’s  Press  Secretary.  In  1981,  there  was  an  assassination  attempt  on  

the president, but the bullet missed the President and Jim Brady was struck35. It took nine years

for a law to be enacted in response to this event, which was fittingly titled the Brady Handgun

Violence Prevention Act of 1993. This act amended introduced a mandatory waiting period of

five days that must occur when any firearm dealer makes a sale to a purchaser. The Act also

established a Federal background check requirement for any license or firearm purchase36. This

background check is known as the National Instant Criminal Background Check (NICS).

Nation Instant Criminal Background Check (NICS)

The NICS system was developed by the FBI with the ATF, the U.S. Department of

Justice, and state and local law enforcement agencies, from the Brady Law mandate. The NICS

system searches the names in three comprehensive FBI databases: the Interstate Identification

Index  (III)  to  check  criminal  histories,  National  Crime  Information  Center  (NCIC)  to  check  “hot  

files”  such  as  warrants  and  protection orders, and the NICS Index which provides information on

both criminal and non-criminal records as to individuals prohibited from purchasing firearms;

including those previously denied from purchasing a firearm, those dishonorably discharged

from military, illegal aliens, and the mentally defective37. Once an individual wishes to purchase

or transfer a firearm, the dealer or manufacturer must consult the NICS system to see if that

individual is barred from owning a firearm. While the process is much more complex in practice,

34 Brady Handgun Violence Prevention Ac,t Pub.L. 103–159, 107 Stat. 1536 (1993) 35 Simon, Scott. (2011, March 26) "Jim Brady, 30 Years Later." National Public Radio. www.npr.org/2011/03/26/134878570/Jim-Brady-30-Years-Later 36 U.S. Bureau of Alcohol Tobacco, Firearms and Explosives. Brady Law/NICS. Washington: http://www.atf.gov/firearms/brady-law/. 37 Tien, James, Michael Cahn, David Einstien and Robin Neray. "Cost-Benefit of Point-of-Contact (POC) Versus Non-POC Firearm Eligibility Background Checks." Structured Decisions Corporation (2003)

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as seen in a Department of Justice study38, that is basic description of the process that the

consumer, dealer, and government follow when purchases of firearms are made.

Once the Brady law was implemented, states had three options within the NICS system

as to what types of operations were most appropriate for their firearm industry. These options are

referred to as full point of contact (full-POC), non-POC and partial-POC.

In full-POC states, Federal Firearms Licensees (FFLs) first ask for NICS and respective

state files for information through one or more entity of the POC states. Then, if needed, the

staffs of the POC entity conduct follow-up research on the person in question, but this only

occurs if that person is flagged in one of the three wide-ranging federal databases or from the

state database. In non-POC states, FFLs contact the NICS Operations Center directly, either by

telephone or by internet. If there is any required follow-up research that is executed by the

NICS’s  FBI  staff  rather  than  the  state‘s  staff.  In  partial  POC  states,  FFLs  consult the NICS

system and state files through a POC for handgun purchases or permits; however they contact

NICS directly for long gun purchases. While POC states charge a fee to the FFLs for each

background check, there is no charge in non-POC states, and Congressional appropriations to the

FBI allocate enough funding to waive such fees. However, these fees do not fully offset the cost

of operating a POC.

The process of the NICS system is fairly simple, as previously described. The Federal

Firearm License (FFL) submits a firearm related background check to the NICS system. The

FFL is required to gather information from the potential firearm purchaser: name, sex, race, date

of birth, and state of residence, social security numbers and other numeric identifiers are

optional. However, submitting numeric identifiers can help expedite the time of the background

38 Tien, James, Michael Cahn, David Einstien and Robin Neray. "Cost-Benefit of Point-of-Contact (POC) Versus Non-POC Firearm Eligibility Background Checks." Structured Decisions Corporation (2003). Pg 11.

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check and decrease the chance of a mistake being made in the process39. The information is then

sent through the three NICS databases, and if the purchaser reports that they are foreign born

then the Department of Homeland Security, Immigration and Customs Enforcement also check

against immigration and neutralization databases to ensure the person in question is not

prohibited for any reason.

There are three outcomes that can occur once the information is processed: the purchase

or transfer can either proceed if no record prohibiting the person was found; the purchaser can be

denied if a record barring the person is found; or the purchaser can be delayed because the

person may have a record and further examination is required. If a case is deemed to be delayed,

then the firearms transfer may be postponed for up to three business days, while NICS examiners

attempt to determine whether the person is prohibited40. At the end of the three-day period an

FFL may proceed with the transfer, at his discretion, if he has not heard from the FBI about the

person in question. The FBI, in the meantime, will continue to work the NICS case for up to 90

days. The transaction is considered to be in an “open status” during this time. If the FBI finds

that the person has no record depicting denial of the person from seeking to acquire a firearm,

then the FFL will be contacted through the NICS system with a response. Conversely, if the

person is found to be prohibited from owning a firearm, the FBI will contact ATF and a process

to retrieve the firearm will be instigated.

Another important distinction to acknowledge is that if no disqualifying information is

immediately found in the NICS system, the agency does not approve the transaction, but rather

allows it to proceed41. In contrast, each individual FFL reserves the right to refuse a firearm if

39 Krouse, William. U.S. Congressional Research Service. 2012. Gun Law Legislation. Publication No. 7-5700. http://www.fas.org/sgp/crs/misc/RL32842.pdf. Pg 23 40 Accessing Records in the System, 28 C.F.R. §25.6. 41 Ibid pg 16

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they believe the purchaser is intending to use the weapon for an illegal or malicious intension42.

It is standard for many FFLs to refuse to sell firearms when the outcome of a NICS background

check is unresolved.

Unfortunately, the NICS system is not working as well as Congress intended. A study

conducted by the National Center for State Courts found in 42 of the 56 states and territories

only about half of the mental health records that should be in the NICS system actually are43. The

largest drawbacks of the NICS system, as former judge and current Congressman John Dingell

from Michigan reported, are a lack of updated electronic records from the states, inadequate

technologies to support the system, and the lack of funding to make appropriate improvements44.

While Federal grants are made available to states in order to improve their NICS systems, the

problem lies primarily with mental health records that are not as widely accessible in the Federal

NICS system. States like Colorado, for instance, maintain mental health records in courts or files

from doctors and psychiatrists, but the records are not centralized.

Nonetheless, the NICS system does allow for states to share information that helps

restrict the illegal acquisition of firearms. For example, the FBI denied 10% more felony

convictions or indictments than the state systems did from 1999-200945. As the graph below

shows, the number of background checks per year has remained basically steady since 2000,

with an increase occurring trend beginning in 2003. This indicates the NICS system has worked

well with respect to criminal background checks.

42 Ibid pg 16 43 U.S. Congress. House of Representatives. 2011. Honorable John D. Dingell of Michigan speaking for the Committee of the Whole House on the State of the Union. H.R. 1. 112th Cong., 1st sess. Congressional record 157, pt. 25 (16 Feburary). 44 Ibid. 45 Krouse, William. U.S. Congressional Research Service. 2012. Gun Law Legislation. Publication No. 7-5700. http://www.fas.org/sgp/crs/misc/RL32842.pdf. Pg 27

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The FFL’s  are not given

any information about why a

person is denied from obtaining

a firearm, but an individual can

challenge their denied status if

they feel that they have no

record that would result in a

prohibited status. The denied

person does this by writing to the agency, either the FBI or the POC agencies in their State,

requesting a reason for their denied status. The agency has five business days to respond to the

request. Once the individual has received a reason for the record denial, the denied person can

challenge the accuracy of that record. If the record is found to be incorrect, the denying agency is

legally obligated to correct the record46.

Colorado House Bill 1048

House Bill 1048 was sent to the Colorado legislature in 2012. The bill dealt specifically

with Colorado conducting operations as a POC State and firearm background checks. The bill

would have eliminated the State from its status as a POC. This bill was House Bill 1048 (HB12-

1048). It was composed from a bipartisan effort, but was largely supported by Republicans with

modest support from the Democrats when the bill went to a vote. In the house, 33 Republicans

voted yes to pass the bill with four Democrats also voting yes. Those who voted against the bill

were unanimously Democrats, but the bill passed since  only  29  “no”  votes  were  cast. The bill

passed the House with a slim margin of 56.9% in favor of the bill.

46 Correction of Erroneous System Information, 28 C.F.R. §25.10

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The POC status of Colorado is largely due to the events that occurred in the Columbine

High School shooting. The Columbine incident transpired when bullied teens brought guns to

their high school and opened fire on classmates, eventually killing 13 people, injuring another 21

students, and culminating in their mutual suicide47. After this incident, legislators felt that having

multiple backgrounds checks, one at the state level and one at the federal level, would ensure

greater public safety48. Ironically, the dual background check system does not allow for greater

safety in gun purchases and transfers, it only adds a superfluous element to the comprehensive

process that the Federal government already mandates. Eliminating the CBI background check

would allow public resources to be utilized in Colorado state-funded programs in more

meaningful ways, not to mention making the time it takes for credible citizens to acquire

firearms more reasonable, without reducing the overall effectiveness of the regulation system.

The State has a compelling interest to take such actions. As common knowledge

demonstrates, one role of the government is to protect the general public. The background checks

are a crucial piece of keeping firearms from those who would endanger society, but having

duplicative background checks can actually lead to more danger than safety. The duplicative

background check increases the workload on the databases that have to be checked. The

amplified inquires can clog the databases, which slows down the process of examining files that

have been flagged for further investigation. If the database is making replicated checks, a

disqualified individual will be flagged twice, which will equate to more work for the NICS

examiners. Then additional time and effort are added to the process. Consequently, more

prohibited individuals could actually access firearms due to the amount of labor the examiners

47 Ingold, John. "Columbine has triumphed over tragedy, lawmakers say." Denver Post, April 20, 2009, http://www.denverpost.com/columbine/ci_12183773 48 Vorderbruggen, Henry. "From Columbine to Concealed Carry On Campus Gun Control in Colorado after Regents." University of Denver Law Review (2012), http://www.denverlawreview.org/ (accessed October 30, 2012).

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are asked to execute, especially to resolve flags within the three-business-day waiting period.

The NICS system is far from perfect, and there are discrepancies between the records that the

state has in  its’  databases and what the federal databases contain. Seeing that the state holds more

records of mental illnesses, such as known drug users, than the Federal system, Colorado should

continue operations in performing background checks for mental health records, to be discussed

in further detail later.

The cost the State of Colorado is incurring to operate as a POC is significant and uses

important tax revenue49. A study from the Department of Justice asserts that the POC allow

states to have longer waiting periods beyond the federally mandated three days, but it is

expensive to do so and continues to consume even more public resources50. This means that

other State programs may be underfunded due to the resources misappropriated to these

background checks and running the POC program. The POC operation creates a negative

externality, imposing a damaging side effect unnecessarily onto a third party51. The third party

that has to assume these costs are the taxpayers of Colorado, given that their tax dollars are not

being used as efficiently as they could be. The Colorado Taxpayer Bill of Rights (TABOR) law

restricts the state government from increasing taxes for programs in need without voter approval.

State and local governments also cannot spend revenues collected under existing tax rates if

revenues grow faster than the rate of inflation and population growth, without voter approval52.

A  recent  study  of  Colorado’s  State  financial situation concluded that, due to

constitutional amendments passed by the citizenry of Colorado, the State has structural problems

49 According to Colorado House Bill 1048 50 Tien, James, Michael Cahn, David Einstien and Robin Neray. "Cost-Benefit of Point-of-Contact (POC) Versus Non-POC Firearm Eligibility Background Checks." Structured Decisions Corporation (2003) 51 Boardman, Anthony, David Greenberg, Aidan Vining, and David Weimer. Cost-Benefit Aalysis: Concepts and Practice. Upper Saddle River, NJ: Prentice Hall, 2011. (accessed November 27, 2012). Pg 91 52 Colorado Department of Treasury. Constitutional Provisions. Denver, CO, 2012.

19

with the means in which it collects revenue that will lead to enormous complications in future

program expenditures53. The most problematic of the amendments to the State constitution are

the provisions that restrict the revenue the state is allowed to collect. The TABOR amendment is

the fundamental problem behind the revenue problem, because it has caused the largest

industries to be taxed at a much lower rate or completely tax exempt, therefore the State

government cannot collect enough revenue to properly fund programs. Colorado will find that

Medicaid and education growth, specifically, will start to crowd out of program funding because

of the restraints policy makers have in Colorado54. The revenue that is redirected from Colorado

abolishing its operations of a full-POC state for Federal NICS system will help other programs

that are in need of additional funds.

Georgia and Oregon

Two other states initially elected to be POC states when the Brady Bill first became law

in 1994. After a number of years, the State of Georgia opted not to continue operations as a POC

due to problematic economic conditions in their states55. The Department of Justice (DOJ)

commissioned a cost-benefit analysis of POC versus non-POC  states  per  the  State  of  Georgia’s  

request before deciding to remove their POC responsibilities. The Government Accountability

Office asked the Structured Decisions Corporation (SDC) to prepare the report, as well as collect

the information necessary to accomplish the goal of the analysis. SDC requested information

from  NICS,  Georgia’s  POC  entity,  and  Oregon  POC  entity for data on each transaction with

53 "Financing Colorado's Future:An Analysis of the Fiscal Sustainability of State Government." University of Denver Center for Colorado's Future (2011), http://www.du.edu/economicfuture/documents/CCEF_ReportPhase1.pdf (accessed January 28, 2013). 54 Ibid. 55 Tien, James, Michael Cahn, David Einstien and Robin Neray. "Cost-Benefit of Point-of-Contact (POC) Versus Non-POC Firearm Eligibility Background Checks." Structured Decisions Corporation (2003)

20

respect to the cost associated with each deal. This allowed the SDC to make a comparison

between the cost of each POC and non-POC transaction.

SDC gathered information from March 2002 to May 2002 on background checks,

especially denial rates from just the state background checks and NICS background checks, as

well as the cost. This allowed for a more complete analysis because the cost of each transaction

is neither a full picture nor a goal of firearm background checks. The denial rate was included to

depict the effectiveness of only using the NICS system, by showing the number of denials in

each system. SDC found that a small number of duplications were found in both the states, where

two inquiries were submitted for the same transaction56. This is noteworthy because duplications

can congest the background checks at both the federal and state levels of government, consuming

even greater funds to make the necessary further investigations. The report also claims;

“One  can  consider  the  state-only files to add value if they enhance the likelihood of denials to those prospective firearm purchasers who should be denied. It is estimated that POCs are able to increase deniability by 19.5%, in comparison to non-POC denials. This added benefit percent is significant and consistent with other  observations  and  findings.”  (vi) This added value the report claims is in large part due to the records that states maintain

and Federal databases do not contain. These records are typically mental health records or drug

abuse records, where a Federal record simply does not exist. Furthermore, our current gun

regulation system allows the possibility of individuals traveling to other, non-POC states, to

purchase firearms. This can occur if that person is able to pass the NICS background check in a

neighboring state that would not have passed in their state of residency. This would take place if

there is information in one state’s records barring them from passing a background check that the

56 Ibid, pg 6

21

NICS did not document, such as mental health issues. This is a small likelihood, but it is

important to recognize the means in which people are able to gain access to firearms.

The Brady Bill was altered once, with the passage of the Lautenberg Amendment57 that

retroactively added domestic violence convictions to the list of disqualifiers. However, in these

cases, research is often needed to determine if a past conviction, for something such as a simple

assault, meets the Lautenberg conditions. The Amendment gives ambiguous definitions as to

what constitutes a disqualification, but increases the time and resources needed to conduct a

background check. The matrix to determine eligibility from each state is found in Appendix A,

Figure 1 and Figure 2. The results from the collections in the study are shown below:

In Oregon, 11.6% of the transactions that were marked by the Oregon background check

for further inquiry were not flagged by the NICS. The report does state that Oregon casts a much

larger net in their background check than the Federal check does, thus names under investigation

were highlighted in some state files in which the NICS did not have access. This report stated

that 74 of the total 543 transactions in question were flagged by Oregon and not by NICS, then

the value added by Oregon is calculated in the following way; (74/543)x100=13.6% added value.

The study then compares the denial rates with the cost of each transaction, and what

additional factors add to the expense of a POC state. The chart below shows a detailed

description of how much each state spent compared to the cost of the NICS system.

57 Domestic Violence Offender Gun Ban, Pub.L. 104–208, 18 U.S.C. § 922(g)(9)

22

Georgia spent the most money relative to the other two entities. When adjusted for

inflation, Georgia spent $2,066,907.93 in 2000, and $1,951319.01 in 2001. For Oregon, the state

spent $614,272.97 in 2000 and $964,594.06. Colorado, in 2012, was projected to spend about the

same amount as Georgia in the years this analysis took place, after Georgia’s  expenses  were  

adjusted for inflation, totaling $1,852,948. This study recommended that the NICS and state files

be further merged to limit the number of records that are not checked in each state, and also to

bring the NICS and state background system into closer alignment for the same reason of

eliminating redundancies. SDC concluded that the value added from states remaining as POC

states is enough to overcome the fiscal obligations, although Georgia did not agree and elected to

operate as a non-POC58. It is important to note that this study was commissioned by the

Department of Justice, who had an interest in keeping POC states active.

Methods

58 U.S. Federal Bureau of Invesitgation. National Instant Criminal Background Check System. Washington: 2008.

23

This research constructs an ex ante cost-benefit analysis, where the analysis is taking

place before the proposed policy change has occurred59. The analysis assumes that current

Constitutional restrictions on revenue collection will persist, and is attempting to find an

alternative to the status quo program. The status quo for Colorado would be to continue to be a

POC for the NICS system. This research is also conducted under the assumption that the people

of Colorado support such procedure changes, and therefore success for any alternative will be

determined by the ability of an option to relieve CBI of its operations with NICS, saving the state

money and creating other opportunities for the expenditure of public funds. The major objective

of this policy memorandum is to find a way to reduce the economic impact that firearm

purchases and permits place on the  state’s  budget.  This  can  be  achieved  by  eliminating  the  CBI’s  

operations as a POC, while still continuing to check for mental health records.

Proposed Solutions

There  are  three  options  to  address  the  CBI’s  statute  requirement  to be a POC for the

NICS system; (1) the status quo; (2) eliminating the CBI’s operations as POC state for the NICS

system; and (3) eliminating the  CBI’s  operations  as  POC  state  for  the  NICS  system, with the

exception of a mental health record check. The status quo would do nothing in regards to statute,

regulations, or costs. Each background check costs CBI $13 just to conduct the examination. For

a comparison, it costs Oregon an adjusted rate of $11.41 per check, and Georgia $9.07 per check

when both states were still a POC state.

The second alternative, however, would make a great change. This would reduce the

State’s  expenditures  on  background  checks  by  almost two million dollars a year, reducing costs

59 Boardman, Anthony, David Greenberg, Aidan Vining, and David Weimer. Cost-Benefit Aalysis: Concepts and Practice. Upper Saddle River, NJ: Prentice Hall, 2011. (accessed November 27, 2012). Pg 3-5

24

from personnel services to operational expenses. The chart below categorizes the expenses that

CBI currently incurs from running the POC program.

These costs follow the assumption that if the bill had been passed in the regular legislative

session of 2012, the Governor would have signed it into law on May 1, 2012. Following the

confirmation of the bill becoming a law, it would have taken 60 days to complete the layoff

process of 26.4 full-time equivalent (FTE) state employees. The other costs associated with

employees would have included savings from reduced expenditures on health, life, and dental,

short-term disability, retirement benefit contributions, and shift differential payments. This

option would have cost the State $50,387 from breaking the terms of the leasing agreement, but

would then save $51,463 from no longer having to make lease payments for the rented space

each year. These savings would have been mostly be returned to the General Fund, which is the

funding resource for other core programs, like education, health services, and corrections60.

60Colorado State Government. Revenue Structure, Spending Limits, and General Fund Expenditures. http://www.colorado.gov/cs/Satellite?blobcol=urldata&blobheader=application%2Fpdf&blobkey=id&blobtable=MungoBlobs&blobwhere=1251689443099&ssbinary=true. 2010.

25

The third  option  would  still  eliminate  the  CBI’s  obligations  as  a  POC  to  the  NICS  

system, but would still require CBI to check the mental health records for individuals purchasing

or transferring a firearm. The Government Accountability Office reported that the total number

of mental health records that states made available to the NICS Index increased by 800 percent

from October 2004 to

October 2011, but this

was largely due to only

12 states, as the figure to

the right illustrates.

States have cited that

technological challenges

hinder their ability to

make mental health

records available on the

NICS system61.

In addition, there are some legal obligations that hinder record sharing of information as a

matter of individual privacy between patients and doctors. The Governmental Accountability

Office conducted a study, finding 3 of the 6 states reviewed stated the absence of explicit state-

level statutory authority to share mental health records was an obstacle to making such records

available  to  NICS.  The  study  said,  “For  example,  Idaho  officials  reported  deferring  to  the  

protection of individual privacy until clear state statutory authority was established to allow state

61 U.S. Government Accountability Office. 2012. Sharing Promising Practices and Assessing Incentives Could Better Position Justice to Assist States in Providing Records for Background Checks. Publication No. GAO-12-684. http://www.gao.gov/assets/600/592452.pdf.

26

agencies to make mental health  records  available.”62 There is already a statute from the Colorado

Mental Health Practice Act, Colorado Revised Statutes, for instances of disclosure of

confidential communication63. While amendments would be necessary to properly address file

transfers to a State database, the foundations are in place to make this statutory modification.

In regards to mental-health records, legal restrictions remain the biggest barrier to

improving the NICS system. However, if CBI was responsible for checking mental health

records, the State would be able to access that information, even if the Federal agencies were not.

In addition, CBI would still need employees to administer mental health checks, therefore the

full 26.4 FTE would not be laid off. The State of New York uses an automated mental health

background check for all those attempting to acquire a pistol or rifle permit, which Colorado

could use as a model64.

At the Federal level, there is already a movement being made in regards to improving the

Federal mental health records in the NICS system. The House’s version of appropriations to

government agencies would give an addition $7 million to the Department of Justice in order to

help State’s  databases  that  contain  information about mental health records65. The Federal entity

already pays a portion of the cost to the collection and storage of records for background checks

from NCHIP and NARIP grants66. In fact, from 1995-2011 the Federal government spent

$556,190,065 on improving records collection and storage solely under the NCHIP grants.

62 Ibid. Pg 12 63 §12-43-218, C.R.S. 64 New Work Office of Mental Health, Mental Health Background Checks for Pistol Purchases and Employment (Albany, NY, 2012), http://www.omh.ny.gov/omhweb/mhbc/MHBC_pres.pdf 65 Kumar, Anita. "U.S. House looks to improve background checks after Va. Tech shooting anniversary." The Washington Post, April 26, 2012, http://www.washingtonpost.com/blogs/virginia-politics/post/us-house-looks-to-improve-background-checks-after-va-tech-shooting-anniversary/ 66 Krouse, William. U.S. Congressional Research Service. 2012. Gun Law Legislation. Publication No. 7-5700. http://www.fas.org/sgp/crs/misc/RL32842.pdf. Pg 28

27

Colorado received $9,061,503 that was used on updating and incorporate all records67. Colorado

has not received any NARIP grants, but states that have received more grant money are deemed

as pioneers in background checks, such as New York68. Colorado already has a record system

that would need further improvements in order for the electronic health records to be utilized by

the State in checking mental health records for firearm purchases and transfers. The State is

working towards improving making the health records electronic in the health care industry,

which could also help with mental health documentation69.

Improving health care records is a priority of both State and Federal agencies. Both

entities are providing grants to many health care facilities to create and maintain databases of

health records, as well as a statewide database for information record sharing70. Therefore, the

State would not need to accrue additional costs in setting up an electronic system such as this,

but rather would simply need to pay the costs to initiate and maintain the system. Such a cost

would be almost negligible compared to the monetary and non-fiscal benefits of having accurate,

accessible mental health records to mitigate against further, costly, gun violence. The Executive

Director  of  the  Colorado  Department  of  Human  Services,  Reggie  Bicha,  said  “Our  goal  is  to  help  

ensure we have the capacity and quality of mental health supports, services and resources to meet

the needs of Coloradans, thereby keeping communities safer for everyone.71” Once again, the

interest of the State is to ensure public safety  without  hindering  citizen’s  right  to  own  firearms.  

67 U.S. Bureau of Labor Statistics. 2012. NCHIP Funding For 1995-2011. available from http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=471 68 U.S. Department  of  Justice,  Office  of  Justice  Programs,  Bureau  of  Justice  Statistics,  “State-by-State Summaries for FY2011  NICS  Improvement  Amendments  Act  Grant  Awards,”  http://bjs.ojp.usdoj.gov/index. 69 Griffin, Laura. "Health Information Technology in Colorado." The Colorado Health Foundation (2008), www.ColoradoHealth.org (accessed November 14, 2012). 70 Ibid. 71 "Gov.  Hickenlooper  introduces  plan  to  redesign,  strengthen  Colorado’s  mental  health  services  and  support  system." Colorado Department of Health and Human Services. http://www.colorado.gov/

28

In order to continue to respond to the tragedy in Aurora in July of 2012, where gunman

James Holmes allegedly opened fire in a movie theater killing 12 people and injuring many

more, the Governor of Colorado, John Hickenlooper, has made a plan to increase funding to help

those with mental illness. As apart of his plan, the Governor suggested a strategy to fund the

development of a system that consolidates mental health and substance abuse files72. This new

database would be apart of the files to be checked for firearm background checks, and would

instantly transfer important information to the FBI. Currently, mental health information is sent

via CD-ROM by the Colorado State Judicial System to the NICS system twice a year73. The real

time data transfer would allow disqualifying mental health information to be immediately

transferred to the CBI Colorado Crime Information System (CCIC) and then transferred

electronically to the NICS data base.

The Governor requested $1,391,865 for the development of such a database in his budget

request. The State would loose $696,530 in revenue from no longer collecting the fee associated

with the CBI background check. This is increasingly important because the number of firearms

background checks in Colorado has been increasing each year, the graph below shows the trend

since 2008.

72 Ibid. 73 Ibid.

+2.5%

202772 208028 214748 251307

286424

2008 2009 2010 2011 2012

CBI Background Checks by Year

+3.1% +14.5%

+12.3%

+2.5%

29

Developing a database to encompass mental illness would utilize definitions and statues

that are already set. The U.S. Department of Health and Human Services defines Mental illness

is  defined  as  “collectively  all  diagnosable  mental  disorders”  or  “health  conditions  that  are  

characterized by alterations in thinking, mood, or behavior (or some combination thereof)

associated with distress and/or impaired functioning.74” That definition is helpful, but not

specific as to what types of individuals are disqualified. Furthermore, the Diagnostic and

Statistical Manual defines mental illnesses as;

“Each of the mental disorders is conceptualized as a clinically significant behavioral or psychological syndrome or pattern that occurs in an individual and that is associated with present distress (e.g., a painful symptom) or disability (i.e., impairment in one or more important areas of functioning) or with a significantly increased risk of suffering death, pain, disability, or an important loss of freedom. In addition, this syndrome or pattern must not be merely an expectable and culturally sanctioned response to a particular event, for example, the death of a loved one. Whatever its original cause, it must currently be considered a manifestation of a behavioral, psychological, or biological dysfunction in the individual.75”  

The definition given above allows for more specific diagnoses to be used in making a judgment

as to what types of mental illnesses will be included. The definition suggests that chronic

disorders are the major descriptor that should be used in creating firearm policies. If an

individual is perpetually found to have stress, or any other disorder, that would disqualify their

rights to own firearms, and not an isolated incident that results in a temporary heightened time of

stress in an individuals life.

There is an additional disqualification for drug users or addicts to any controlled

substance from possessing or receiving a firearm. The ATF has more definitions that are specific

74 U.S. Department of Health and Human Services. Mental Health: A Report of the Surgeon General. Rockville, MD: U.S. Department of Health and Human Services; Substance Abuse and Mental Health Services Administration, Center for Mental Health Services, National Institutes of Health, National Institute of Mental Health, 1999. 75 Bolton, Derek, K.W.M. Fulford, Kenneth S. Kendler, Katharine A. Phillips, John Z. Sadler and Dan J. Stein. "What is a Mental/Psychiatric Disorder? From DSM-IV to DSM-V." National Institutes of Health Public Access 40(11) (2010), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3101504/ (accessed March 5, 2013).

30

to the individuals who are barred from possessing a firearm. The ATF defines an unlawful user

or  addicted  to  a  controlled  substance  as  “A  person  who  uses  a  controlled  substance  and  has  lost  

the power of self-control with reference to the use of the controlled substance and any person

who is a current user of a controlled substance in a manner other than as prescribed by a licensed

physician.76” The ATF  also  defines  “adjudicated  as  a  mental  defective”  as  a  determination  by  a  

court, board, commission, or other lawful authority that a person, as a result of marked

subnormal intelligence, or mental illness, incompetency, condition, or disease: (1) is a danger to

himself or others; or (2) lacks the mental capacity to contract or manage his own affairs77.

Finally,  the  AFT  has  defined  the  term  “committed  to  a  mental  institution”  as  a formal

commitment of a person to a mental institution by a court, board, commission, or other lawful

authority. The term includes commitments for other reasons, such as for drug use78. These

definitions are useful in determining the types of files that should be included to a mental health

database. Using the definitions allow for a speedy development of a mental health database, and

will help CBI to understand what files need to be collected and placed into that database.

It is beyond the scope of this analysis to give the specific mental illnesses that would

need to be documented into a database. In Colorado, the General Assembly is charged with the

authority to pass statutory laws79. This means the General Assembly would have to pass bills that

defined which mental illnesses would be incorporated into the database. It would be the will of

the elected officials to decide which mental illnesses are severe enough to be included in a

76 27 C.F.R. § 478.11. 77 Ibid. 78 Ibid. 79 Colorado General Assembly, Legislative Process (Denver, CO) Pg. 1-7.

31

mental health database. The definitions given above are recommended to use in the compilation

of statutes.

Weaknesses and Limitations

A weakness of this argument is the political viability of passing such legislation given the

current climate surrounding firearm acquisition. This debate has become increasingly political

given the numerous incidents involving the use of firearms within the last calendar year.

Constituents would need to understand the details of a bill proposal such as this, but they may

not, making this bill less viable in the present divisive climate surrounding firearms regulations.

Firearm regulations tend to elicit a heated debate around the scope of regulations as it relates to

impeding on the Second Amendment or just providing safety precautions. Passing a bill dealing

with firearms is less likely to pass in the next legislative session due to the rise of incidences

ending with more victims of gun violence. Passing of the bill is also less likely because of the

strong emotions gun control advocates feel with such a short time span from the latest incident of

gun violence. In addition, any issue encompassing firearms extracts strong emotions in the public

that are not possible to accurately monetize, and therefore the political side of this debate will be

left out, until the sensitivity analysis.

The numbers for the local costs and benefits are approximations based off trends and

reported estimates for state expenditures on background check expenses. These figures are not

exact since it is reported by the state and not localities. These figures should not been seen as

exact figures, but estimations to illustrate how local governments could be effected.

Moreover, the specific sphere where the money should be directed will not be discussed.

The  money  will  be  dispersed  back  into  the  State’s  general  fund,  to  be  utilized  the  in  a  manner  

that legislators and their constituents feel is most appropriate. Also, the House Bill would

32

increase the workload on the local law enforcement agencies. The funding would be reduced at

the State level, but would increase the effort by the smaller agencies that might be equally be in

need of additional funding.

Cost-Benefit Analysis

The Cost-Benefit analysis outlines the primary market stakeholders for the three

alternatives indentified, and how the costs and benefits will affect each individually. The

calculations will take into account the social costs and benefits that society, as a whole, will

incur, as well.

The Cost-Benefit analysis is outlined by Boardman et. al. in Cost-Benefit Analysis:

Concepts and Practice. The stakeholders are defined, as well as their costs and benefits, and the

alternatives for policy options are weighed to achieve the most effective alternative for all

stakeholders. The major stakeholder involved is the State of Colorado, seeing that the state

government must fund and oversee any option that is decided upon. Public safety is included

within the Colorado stakeholder, since that it the goal of the State. Again, any option pursued

will have the most dramatic impact on the State government. The other main stakeholders are the

Federal regulatory entity given their responsibility to conduct background checks regardless of

the option Colorado carries out. Local law enforcement will also be impacted, and the second

and third alternatives require additional work for the counties.

The goal of the analysis is to find the option that provides the most efficient use of public

resources from the three alternatives. The alternatives are summarized below.

Alternative 1: Status Quo. The status quo would require CBI to continue

operations as a POC state for the NICS system. The costs that the State is

33

currently expending on the background checks would continue, and this option

would not require any cost shifting.

Alternative  2:  Eliminating  CBI’s  Status  as  a  POC  state. This alternative would

require CBI to no longer conduct background checks, but, rather, the FBI would

conduct all firearm background checks. This alternative would find savings in the

cost it takes to conduct a background check, as well as the wages and benefits of

the employees who conduct the checks.

Alternative  3:  Eliminate  CBI’s  Status  as  a  POC  state,  except  Mental  Health  

Records. The final alternative would also require FBI to conduct all criminal

background checks, but CBI would conduct a background check for mental health

records. CBI would centralize all mental health records that are currently scattered

among court and doctor or psychiatrist files. This alternative also saves some

money from wages and benefits, but salvages some of the jobs of the CBI.

See the Appendix for details of cost and benefit calculations associated with the Cost-Benefit

model.

Costs Status Quo Eliminate  CBI’s  Status  as a POC state

Eliminate  CBI’s  Status  as  a  POC state, except Mental Health Records

Colorado (.5) Wages and Benefits $1,323,366 $0 $0 Operational Costs $360,075 $696,530 $70,000 One-time Costs $168,431 $50,387 $410,000 Social Cost $44,759,844 $44,759,844 $44,759,844 FBI (.2)80 NICS Personnel Cost $30,918,864.14* $30,918,864.14* $30,918,864.14* NICS Operational Costs $28,668,869.80* $28,668,869.80* $28,668,869.80*

80 The cost at the Federal level remain the same regardless of the option chosen by the State of Colorado because the FBI will have to continue normal operations in regards to background checks. The FBI will run the same number of background checks even if Colorado chooses a proposed alternative, since the Colorado background checks duplicate that of the FBI. Therefore, no additional work will be required by the FBI.

34

Law Enforcement (.3) Background Checks $0 $22,698,628 $081 Total Costs ($106,199,449.94) ($127,793,122.94) ($104,827,577.94) Benefits Status Quo Eliminate CBI Check Eliminate CBI Check, except

Mental Health Records Colorado (.5) Wages and Benefits $0 $1,323,366 $0 Operating Costs $0 $360,075 $40,000 Lease Payment $0 $168,431 $0 Break Lease Payment $0 $50,387 $50,387 Social Benefit $463,945,127 $463,945,127 $463,945,127 FBI (.2) NICS System $0 $0 $0 Law Enforcement (.3) Provider Savings $0 $0 $1,310,50082 Total Benefits $463,945,127 $465,847,386 $465,346,014 Net Benefits $367,745,677.06 $338,054,263.06 $360,518,436.06

Each alternative would cost all the stakeholders over $100,000,000 when social costs are

accounted for. Conversely, the benefits from each option compensate for the cost, and each

would result in a net benefit to Colorado. Eliminating  CBI’s  status as a POC state produces the

highest benefits, but also is coupled with the highest costs. The status quo is not the most cost

effective alternative for the state, and, additionally, yields the least benefits, as well. Finally,

eliminating  CBI’s  status as a POC state, with the exception of checking mental health records, is

the least expensive option for Colorado, and would produce almost the same amount of benefits

that  just  eliminating  CBI’s  status  as  a  POC  state making it the most appropriate alternative for

the State.

Sensitivity Analysis

Social Cost and Benefits

81 The mental health records check would not create an additional cost to local law enforcement agencies, since the mental health checks will occur at the State level. 82 The anticipated provider saving from implementing a mental health record database ranges from $840,000-$1,781,000. The average of these figures was taken for the benefit of implementing such as system.

35

Gun ownership is a topic that encompasses elements stretching far beyond the simplicity

of fiscal transactions, which produces tax benefits. These items have the potential to be

incredibly dangerous to the greater public. Given that firearms have a plausible ability to hamper

the lives of others, there is a social cost to gun ownership in the United States. Researchers Cook

and Ludwig, from Stanford University and Duke University, found that the cost of gun

ownership increases with each additional homicide per year83. The researchers then took an

average homicide rate of 10/100,000 and calculated that rate with the homicide elasticity finding

that,  “Each  additional  10,000  handgun  owning  households  is  associated  with  one  additional

homicide per year84.” Cook and Ludwig also found that each assault-related gunshot injury costs

society $1 million85. Therefore, they use the value of $1 million with an average homicide

elasticity of +.10. Using the same number of 10,000 additional gun-owning household with the

homicide elasticity and the cost of an assault-related injury, the researchers found that society

pays $100 per year for every hand-gun owning household86. The Small Army Survey reported

that the United States has approximately 89 firearms per every 100 people in the country87.

Using that value and applying it to Colorado, it would indicate that there are about 447,598.44

guns in the state currently. This would equate to $44,759,844 in social costs per year.

Conversely, there are also benefits to the proposed policy option. The money that would

be  saved  from  the  elimination  of  CSI’s  POC  operations  would be refunded into the State’s  

General Fund. This would allow for other programs, currently underfunded, access to additional

funds. 83 Cook, Philip J. and Jens Ludwig. "The Social Costs of Gun Ownership." The National Bureau of Economic Research (2004), http://sanford.duke.edu/research/papers/SAN04-07.pdf. Pg 5 84 Ibid. 85 Cook, Philip J. and Jens Ludwig. "The Social Costs of Gun Ownership." The National Bureau of Economic Research (2004), http://sanford.duke.edu/research/papers/SAN04-07.pdf. Pg 23 86 Ibid. Pg 25 87 "Small Army Survey: Guns and the City." Graduate Institute of International Studies, Geneva (2007), www.smallarmysurvey.org/de/publications

36

In addition, research from a formal statistical analysis indicates that the average

American household would be willing-to-pay an additional $239 per year to reduce gun violence

and to fund programs intended with achieve the same goal88. The Census Bureau reports that

there are 1,941,193 households in Colorado in 2011, meaning Colorado could have an additional

tax benefit of $463,945,127 per year for reducing gun violence.

Rural verse Urban Costs

The number of background check inquiries varies based on geographical location. As

expected, areas with higher populations tend to have higher background check inquiries. The

number of background checks in each county is not recorded, only the total number of

background checks conducted by the State. The United States Department of Health and Human

Services reported that 34.7% of people in Colorado own a gun. Using this percentage the number

of guns per county can be calculated with census population figures. The Census Bureau defined

any county that has a population greater than 50,000 people to be an urban county. Dividing

Colorado into urban and rural categories, the total number of guns based upon the 34.7% gun

ownership would indicate that there are 1,504,977 gun owners in urban areas, and 240,379 in

rural areas. See the Appendix for details on these calculations. However, Colorado does not

require the registration of firearms89. Therefore it is not possible to know exactly how many guns

are present in the State. The figures are a mere representation that the number of firearms is

higher in urban areas than in rural areas, therefore it can be concluded that urban counties would

have higher cost than rural counties in their operations of conducting background checks.

While there are more inquiries in urban centers, the number of gun owners is actually

higher as a ratio of the population in rural areas. The number of firearms is a higher presence in 88 Cook, Philip J. and Jens Ludwig. "The Costs of Gun Violence against Children." Children, Youth, and Gun Violence 12 (2002), http://home.uchicago.edu/~ludwigj/papers/Future_of_Children_2002.pdf. Pg 95 89 CRS 29-11.7-102

37

rural areas than urban areas, in both handguns and long guns. Many rural gun owners are

hunters, and tend to use rifles or shotguns. The percentage of citizens owning handguns has also

been higher in rural areas than in central cities, 23 versus 15 percent90. There are far more rural

counties in Colorado than urban counties, by a large ratio. Rural areas have been found to value

gun ownership at a higher level than urban areas, given the culture of hunting and sport shooting

in rural areas91. In addition, the Firearm and Injury Center at the University of Pennsylvania

reported,  “The  risk  of  firearm  death  in  very  rural  counties  is  the  same  as  the risk for big cities.

Rural areas have higher risks for firearm suicide and unintentional injury, while the risks for

firearm homicide and assault are greater in urban areas.92”

Political Viability

Firearms are inherently a politically charged topic, given the subjectivity in trying to

attain a balance of reasonable restrictions without obstructing the ability for citizens to own

firearms. There is a National outcry for reform to the process in which people gain access to

firearms and other weapons, derived from many instances of careless gun violence. Once again,

the United States has seen 62 mass murders involving a firearm since 1982; a majority of these

incidences took place at the hands of someone who was mentally ill93. In 2011, the PEW

Research Center found that 58% of Americans said that they felt like incidences in Tucson or the

Virginia Tech shootings were isolated and occurred at the hands of troubled individuals. Since

the recent Sandy Hook shooting in Newtown, Connecticut that view has already dropped 14%,

90 Wright, J.D., P.H. Rossi, and K. Daly. Under the Gun: Weapons, Crime and Violence in America. New York: Aldine Publishing Company, 1983, p.106. 91 Cook, Phillip J. and Jens Ludwig (1996) Guns in America: Results of a Comprehensive Survey of Gun Ownership and Use. Washington D.C.. Police Foundation. 92 "Firearm Injury in the US." Firearm and Injury Center at Penn. http://www.uphs.upenn.edu/ficap/resourcebook/pdf/monograph.pdf (accessed January 14, 2013). 93 Arosen, Gavin, Follman, Mark, & Pan, Deanna. "A Guide to Mass Shootings in America." Mother Jones, December 15, 2012, http://www.motherjones.com/politics/2012/07/mass-shootings-map

38

and 44% of Americans view mass shootings as isolated incidents by troubled individuals94.

There have been nine instances of mass shootings since the poll by PEW was administered after

the Tucson shooting, which is most likely the reason for the large decrease in public opinion.

Specifically, in Colorado the Governor is requesting an $18.5 million increase in the

State’s  funding  in  order  to  strengthen  mental  health,  including  instant mental health updates

available for gun background checks95. Since the gun debate has already started to focus on

mental health as a major issue for those who are buying guns, the time to give CBI authority to

make mental health checks is optimal at this time.

Unintended Consequences

The  proposed  recommendation  for  the  State  of  Colorado’s  procedure  in  conducting  

background checks for mental health records should produce benefits to the citizens of the State

of Colorado. However, policy change always has the potential to elicit unforeseen ramifications.

This proposal would not be able to capture every single gun transfer or transaction. Colorado

does not have a registration requirement for any firearms,96 therefore if a person inherited a

firearm they would not be subject to registration. This could still allow those with mental illness

to unintentionally obtain access to a firearm. Likewise, those who already own a firearm could

develop a mental illness later in life, when they already own a firearm. That person may not be

conscious that they have such an illness until later, and, possibly, decline help in fear of having

to relinquish ownership of their firearm due to their mental illness.

94 Roberts, Amy. "By the numbers: Guns and mental health." CNN, December 21, 2012, http://www.cnn.com/2012/12/21/politics/btn-guns-and-mental-health/index.html 95 McCrimmin,  Katy.  "‘Raw’  from  tragedies,  governor  calls  for  mental  health  overhaul."  Solutions, December 18, 2012, http://www.healthpolicysolutions.org/2012/12/18/raw-from-tragedies-governor-calls-for-mental-health-overhaul/ 96 Ibid

39

Even more frightening, the additional mandate of mental health checks may increase the

presence of an illicit firearm market. There are already a variety of means in which criminals, or

others barred from owning a firearm, are able to gain access to them. Most guns are illegally

obtained  from  licensed  dealers  that  perform  “over-the-counter”  transactions with cash from an

FFL, straw purchases, from gun thefts, or unlicensed street dealers who either get their guns

through illegal transactions or from a one of the previous methods97. A straw purchase is when

someone who is disqualified from possessing a firearm pays another individual to make the

purchase of the firearm, so that the background check will not be conducted for the person that

will end up with the firearm98. Since Colorado does not have a registry mandate, this could

become a big problem for the State.

Strategic Recommendation

Although the benefits are greater for CBI to completely eliminate the POC operations, the

social benefits from implementing a mental health records check is influential enough to make

the best alternative for Colorado. The political element that is discussed above will play an

influential role in the marketing of the bill. The memory of the Aurora shooting is still so fresh in

the minds of the people of Colorado that the bill can easily be misconstrued as a means to allow

easier access to firearms, which is not necessarily the case. Eliminating  CBI’s  operations  as  a  

POC will still require background checks for firearm purchases and transfers, maintaining the

same safety precautions already in place. Including the modification of CBI running a check on

the mental health records of those trying to transfer or purchase firearms could be a compromise

for the State Republicans and Democrats, while improving public safety.

97 Noyes, Dan. "Hot Guns." PBS, http://www.pbs.org/wgbh/pages/frontline/shows/guns/procon/gun 98 Ibid.

40

In  addition,  the  abolishment  of  CBI’s  role  as  a  POC  state  in  the  NICS  system  will  save  

the Colorado money that can be better used in other programs that are currently inadequately

funded. The State would still have to spend some money on the electronic records system, but is

a fraction of the cost that Colorado is currently expending on background checks for firearm

purchases or transfers. Given the sociopolitical environment of the State, it seems that the third

alternative would also be the most feasible, where each stakeholder must sacrifice some small

degree of benefits for the interest of the State and safety for citizens.

41

Appendix A- Disqualification matrix for firearm background checks in Georgia and Oregon, given by the Structured Decisions Corporation.

Figure 1

Figure 2

42

CBA Construction Costs to  develop  a  mental  health  records  database  given  by  Colorado’s  Governor,  John  Hickenlooper

43

Outlined benefits for creating a mental health background check database.

44

Gun ownership calculation by Colorado County used to project the number of firearms in the state, as well as the costs local law enforcement may face.

45

1,504,977 + 240,379 = 1,745,356 Total guns in Colorado

1,745,356 x $13/background check= $22,698,628 expense to localities

46

Rural County Breakdown

47

48

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