Approach

The Federal Bureau of Investigation (FBI) National Instant Criminal Background Check System (NICS) is used by firearm background check examiners, either at the FBI or, in some states, by agencies known as points of contact, to determine whether a prospective buyer is eligible to purchase a firearm.¹Federal Bureau of Investigation, Criminal Justice Information Services, “National Instant Criminal Background Check System (NICS),” accessed May 30, 2019, https://www.fbi.gov/services/cjis/nics; Federal Bureau of Investigation, Criminal Justice Information Services, “About NICS,” accessed May 30, 2019, https://www.fbi.gov/services/cjis/nics/about-nics. The majority of individuals who fail firearm background checks are convicted felons.²US Government Accountability Office (GAO), Report to the Ranking Member, Subcommittee on Commerce, Justice, Science, and Related Agencies, Committee on Appropriations, House of Representatives, “Few Individuals Denied Firearms Purchased Are Prosecuted and ATF Should Assess Use of Warning Notices in Lieu of Prosecutions,” September 2018, https://www.gao.gov/assets/700/694290.pdf; US Department of Justice, Office of the Inspector General (OIG), “Audit of the Handling of Firearms Purchase Denials Through the National Instant Criminal Background Check System,” September 2016, https://oig.justice.gov/reports/2016/a1632.pdf.

It is a federal crime for individuals who are prohibited from buying firearms to attempt to purchase a gun by lying about their prohibited status on background check or application forms.³18 U.S.C. § 922(a)(6); 18 U.S.C. § 924(a)(1)(A).

Some states have similar express prohibitions, and all states have general criminal laws that would cover this conduct, such as those prohibiting perjury, false filing, and illegal attempted purchase of a firearm.  States can obtain and use background check denial records, either from their point of contact or, in states that rely on the FBI for background checks, by partnering with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) and US Attorneys’ Offices (USAOs), to prosecute dangerous people who lie to try to purchase guns.

Impact

Individuals are more likely to be arrested for another crime in the five years after they lie and try to purchase a firearm than in the five years prior.⁴James M. Tien et al., “Recidivism of Denied Prospective Firearm Purchases,” US Department of Justice, May 2008, https://www.ncjrs.gov/pdffiles1/bjs/grants/222677.pdf. Thus, prosecuting individuals who lie and try to buy a firearm may effectively prevent future criminal conduct. Over a seven-year period, 10-21 percent of individuals referred to ATF field offices for having lied and tried to purchase firearms were arrested subsequently for crimes involving guns.⁵Jose Pagliery, “Gun Form Liars May Go on to Commit Gun Crimes, Internal ATF Reports Suggests,” CNN, December 21, 2018, https://cnn.it/2qqiyQN. Relatedly, a study commissioned by the US Department of Justice found that people who lie to try to purchase guns had an 81 percent increase in firearm-related arrests in the five years after the background check denial than in the five years prior.⁶Tien et al., “Recidivism.” The same study showed that three in 10 people who fail a background check for criminal convictions or indictments are rearrested in the next five years.⁷Ibid. (See Table 3.)

Necessary Resources

States will have to assign local law enforcement officers who are responsible for investigating individuals who fail firearm background checks and for making referrals to state prosecutors. In addition, state prosecutors’ offices will have to assign prosecutors to work with law enforcement to review the circumstances of the denials and pursue those worthy of prosecution. States can consider working with USAOs to designate selected state prosecutors as Special Assistant US Attorneys so that they can prosecute these cases under federal or state law, depending on the circumstances of the case. To conserve the resources necessary for prosecution, in cases deemed less serious, law enforcement officers can provide warning notices to try to deter future criminal conduct. States also will need some data management or information technology process that keeps track of the background check denials and the basis for them in a way that permits systematic review. Ideally, this system also will track which denials are investigated and whether they result in arrests, prosecutions, and convictions.

Strategy in Practice

Overview

The mechanisms for obtaining background check denial data will differ in POC states and states that rely on the FBI for background checks.

If You are in a POC State

POC states will have to develop a mechanism for referring transactions denied by the agency (or agencies) responsible for the background checks to local law enforcement offices.  In some states, background checks are decentralized, meaning they are conducted in different local law enforcement departments, depending on the location of the FFL. Other states have one agency responsible for all the checks in the states.

Three POC states—Virginia, Pennsylvania, and Oregon—have implemented systematic processes for the investigation and prosecution of individuals who lie on firearm background check forms.In 2016 alone, Virginia law enforcement arrested 1,360 criminals, fugitives, and others who tried to buy guns illegally.⁸Virginia State Police, “Facts and Figures Report 2016,” http://bit.ly/2OZcWaq. In the same year, almost half of all NICS denials in Virginia were investigated.⁹Virginia State Police. “Facts and Figures.” Report 2016. In Pennsylvania in 2017 and 2018, failed background checks gave rise to 10,828 investigations, 1,399 arrests, and 729 convictions.¹⁰GAO, “Few Individuals Denied,” 76.

In Oregon in 2016, the state police investigated more than 1,100 of the almost 2,600 denied purchases in that state and referred the remainder to local law enforcement departments. Between 2014 and 2017, two county prosecutors in Oregon accepted a total of approximately 140 cases, out of 700 referred to their offices, for prosecution. Thus, these states prosecute people who lie to try to purchase firearms at a much higher rate than in the federal system.¹¹GAO Report at 7, 55-57. Other POC states can follow their lead, while non-POC states can partner with their federal counterparts to achieve similar results.

If You are in a Non-POC State

States that rely on the FBI to conduct firearm background checks will need to cooperate with the ATF and USAOs to obtain data on background check denials from NICS and to determine how to divide the cases between state prosecutors’ offices and the USAOs.

In February 2018, former US Attorney General Jeff Sessions directed United States Attorneys to prioritize the prosecution of individuals who fail firearm background checks and to work with local ATF offices to review guidelines for handling these referrals.¹²See, e.g., Sari Horwitz, “Sessions Calls on US Attorneys To Aggressively Prosecute Gun Buyers Who Lie on Background Checks,” Washington Post, March 12, 2018, https://wapo.st/2oXe1oJ; Ali Watkins and Katie Benner, “Justice Dept. to Prioritize Prosecutions for Lying in Gun Background Checks,” New York Times, February 22, 2018, https://nyti.ms/33UTz6X. A partnership between federal and state authorities committed to prosecuting more of these cases would help fulfill this mandate and stop more people with dangerous histories before they obtain guns illegally.

Common Barriers

Lack of resources: Light sentences associated with these crimes may contribute to a reluctance to devote the necessary resources to prosecuting these cases. Moreover, it sometimes is difficult to prove that the prospective buyer knowingly provided false information. Even those POC states that have prioritized these prosecutions have noted the difficulties in devoting the necessary resources.¹³GAO, “Few Individuals Denied,” 28.

Limited Access to NCIC Denied Transaction File: The NCIC, one of the databases that NICS relies upon, includes a file of individuals who have failed background checks. State agencies can search this file for specific individuals by name or other identifying information. However, they cannot search the file for a list of all denied transactions in their jurisdiction for a certain time period. Therefore, in states that rely on the FBI for firearms background checks, cooperation with the ATF is essential in order to obtain this information.

Incomplete records in NICS databases: The information that populates the NICS databases is provided by local, state, and federal agencies.¹⁴“NICS 2018 Operations Report,” at 1-2, 24-25. When this information is incomplete or missing, it is possible that an individual prohibited from purchasing a firearm could pass a background check and purchase a firearm without detection by law enforcement.¹⁵Police Executive Research Forum, Reducing Gun Violence: What Works, and What Can Be Done Now (Washington, D.C.: Police Executive Research Forum, 2019), 11-12; “NICS 2018 Operations Report,” 29-30.

Agencies, Organizations, and Other Necessary Partners

• FBI NICS
• State firearms background check points of contact
• ATF
• State and local law enforcement agencies
• State and federal prosecutors
• FFLs

What Else You Need to Know

Under federal law, if the background check examiner is unable to reach a conclusion about whether the prospective purchaser is permitted to buy a firearm within three business days, then the FFL may, but is not required to, proceed with the sale. Some states impose a longer waiting period. Most background checks conducted by NICS are completed very quickly—in under two minutes.¹⁶ Ibid. However, when records are unclear, it may take longer. In 2018, 3.5 percent of background checks conducted by NICS remained inconclusive after three days.¹⁷Data provided to Everytown by the FBI pursuant to a FOIA request. If the determination takes longer than three days, and the examiner ultimately determines the sale should be denied, then, at least in states that rely on the FBI to conduct the background check, the FFL is contacted to determine whether the firearm was transferred to the prohibited purchaser. If so, the ATF is responsible for seeking the return of the firearm. These individuals can be prosecuted not only for lying on their background check forms, but also for illegally possessing firearms.