Review of the Bureau of Alcohol, Tobacco, Firearms and Explosives' Enforcement of Brady Act Violations Identified Through the National Instant Criminal Background Check System
Report Number I-2004-006
The Office of the Inspector General (OIG) reviewed the Bureau of Alcohol, Tobacco, Firearms and Explosives' (ATF) enforcement of violations of the Brady Handgun Violence Prevention Act of 1993 (Brady Act) (Public Law 103-159) that are identified through the Federal Bureau of Investigation's (FBI) National Instant Criminal Background Check System (NICS). Specifically, we reviewed the extent to which the ATF investigated violations of the Brady Act referred by the FBI, whether the ATF retrieved firearms issued to prohibited persons in a timely manner, and the extent to which Brady Act violations were referred to and prosecuted by the U.S. Attorneys' offices (USAO).
The Gun Control Act of 1968 (GCA) (Public Law 90-618) established nine categories of persons prohibited from possessing firearms.1 The Brady Act of 1993 created a 3-day waiting period before a purchaser can take possession of a firearm, and it established a background check system - the NICS - that firearms dealers were required to contact before the transfer of any firearm to ensure that a person receiving a firearm was not prohibited under the GCA from possessing firearms. The FBI implemented the NICS on November 30, 1998. To verify the eligibility of a prospective firearms purchaser, Federal Firearms Licensees (FFL) request a NICS check through either the FBI or a state point of contact (POC). During calendar years (CY) 2002 and 2003, the FBI processed 8.5 million NICS background checks and state POCs processed 8.2 million NICS background checks.
To conduct background checks on potential firearms purchasers, the FBI must rely on state criminal history records and records on other prohibited categories that are not totally complete and accessible. As a result, the FBI cannot always obtain complete background information within the 3-day waiting period. The law allows any FFL to transfer a firearm at the end of the 3-day waiting period regardless of whether the background check has been completed. Some prohibited persons thus receive firearms when the background check takes longer than three days to complete.
The FBI refers to the ATF the names of all prohibited persons who attempted to or succeeded in obtaining a firearm from an FFL. The ATF is responsible for promptly retrieving firearms transferred to persons found to be prohibited subsequent to the 3-day processing deadline and for investigating those referrals from the FBI that meet the USAOs' prosecutorial guidelines. During CYs 2002 and 2003, the FBI referred a total of 7,030 cases to the ATF in which persons that it identified as prohibited succeeded in obtaining firearms ("delayed denial" cases). The FBI also referred a total of 121,909 "standard denial" cases in which background checks were completed in time to prevent a prohibited person from obtaining a firearm.
At the ATF, the Brady Operations Branch reviews the FBI referrals and forwards those denials that require a firearm retrieval or that meet the USAOs' prosecutorial guidelines to the NICS coordinator in the appropriate ATF division office. Each NICS coordinator reviews the referrals and disseminates them to the appropriate field or satellite office for investigation.
RESULTS IN BRIEF
The ATF is responsible for retrieving firearms expeditiously from persons prohibited by the GCA from possessing firearms. We found that although the ATF normally has been able to retrieve the firearms eventually, the retrievals were not always timely. We also found that ATF special agents did not sufficiently document retrievals or provide assurance that a prohibited person no longer had access to the firearm.
Since 1998, the ATF has made progress in screening standard denial cases referred by the FBI. However, we found that the Brady Operations Branch and the ATF division offices were still referring standard denial cases to the ATF field offices that lacked prosecutorial merit, thereby increasing the workload of already overburdened field investigators and delaying the investigation of prosecutable cases. Cases without prosecutorial merit were being referred due to the lack of sufficient USAO prosecutorial guidelines, inadequate screening by some ATF divisions, inadequate communication, and insufficient training and guidance.
The Brady Operations Branch was using broad guidelines synthesized from jurisdiction-specific guidelines prepared by multiple USAOs. As a result, ATF division office personnel were required to perform additional screening using more specific individual USAO guidelines in order to determine whether a case merited investigation. Further, we found that the ATF had not allocated sufficient resources to the Brady Operations Branch to enable it to fully execute its responsibilities. Insufficient staffing resulted in extensive NICS case backlogs, which delayed the referral process and affected the timeliness of investigations. Also, the ATF had not provided funds for technological modifications of its case tracking and referral system to improve the operational efficiency of the Brady Operations Branch.
Our review also found that few NICS cases are prosecuted. During CYs 2002 and 2003, only 154 (less than 1 percent) of the 120,000 persons who were denied during the NICS background check were prosecuted. Historically, USAOs have been unsuccessful in achieving convictions in many of these cases and consequently have been unwilling to expend their limited resources on prosecuting most NICS cases.
The ATF Does Not Always Make Timely Firearms Retrievals
We identified delays in retrieving firearms in 65 of the 188 cases (35 percent) we reviewed for which investigations were completed. In 28 of these 65 cases (43 percent), it took from four months to over a year to retrieve the firearm. We identified a number of reasons for these delays:
These delays increase the risk that prohibited persons may use the illegally obtained firearm to harm others or to otherwise commit a crime. In one of our sampled cases, for instance, the prohibited person fired the weapon at another person's car and was subsequently charged by local law enforcement with aggravated assault.
The ATF's Firearms Retrieval Procedures Are Inadequate
We noted deficiencies in the ATF field office procedures for initiating retrievals, documenting who took possession of firearms relinquished by prohibited persons, and verifying and documenting that third parties receiving the firearms were not themselves prohibited from possessing firearms.
Before sending an agent to retrieve a firearm, field offices in some cases sent a contact letter to the prohibited person requesting that the firearm be voluntarily surrendered. According to the ATF special agents we interviewed, these letters generally elicited a high response rate. However, we found that the effectiveness of these letters was diminished because the ATF field offices were not always timely in sending the contact letters, did not specify a time frame in the letter for the recipient to respond, and did not always take timely action if there was no response.
When delayed denials occur, the ATF allows prohibited persons to relinquish their firearms to FFLs or to third parties of their own choosing. In some instances, the ATF learns that state or local law enforcement agencies have seized a firearm it is attempting to retrieve. In these cases, we found that the ATF special agents handling retrievals did not always verify and document what became of the firearms. In more than half (55 percent) of the 101 cases in our sample in which the firearm was recovered, there was no documented evidence in the investigative case file of the recovery. As a result, there was no assurance that the prohibited person had relinquished control of the firearm.
In addition, of the 59 sampled cases involving third party transfers, only 24 cases (41 percent) contained evidence that the special agent had conducted a background check to verify that the third party was not prohibited. Failure to verify the prohibited status of the third party can result in the firearm being transferred from one prohibited person to another.
ATF Field Offices Receive Too Many Standard Denial Cases That Are Unlikely to Be Prosecuted
The case management system used by the Brady Operations Branch does not identify cases by USAO jurisdiction. Therefore, the Brady Operations Branch applied broad guidelines rather than guidelines specific to particular USAOs when screening cases for prosecutorial merit. The result is that too many standard denial cases without prosecutorial merit are referred to the divisions and field offices. The case management system also cannot route referrals directly to the field investigators, thereby delaying retrievals. If the case management system was modified to identify cases by USAO jurisdiction and allow direct referrals to the field offices, the Brady Operations Branch could screen standard denials using specific USAO guidelines and then refer cases with prosecutorial merit directly to the field investigators, bypassing the NICS coordinators. This would eliminate the need for NICS coordinators to perform additional screening and therefore should improve the timeliness of the referrals to the field offices.
Our review identified other reasons why the field offices were receiving an excessive number of standard denial referrals that were not likely to be prosecuted:
Some Denied Persons Are Subsequently Determined by the ATF Not to Be Prohibited
We found that 69 (35 percent) of the 197 delayed denials and 16 (8 percent) of the 200 standard denials that we sampled were applicants who subsequently were found not to be prohibited from possessing a firearm. This situation occurred for several reasons: (1) the subject's firearm rights had been restored under state law, (2) the subject's prohibition for a misdemeanor crime of domestic violence did not meet the federal criteria, or (3) a protective order had expired or was about to expire.
Erroneous denials in which a person is found not to be prohibited cannot always be prevented or detected easily. These denials are usually due to incomplete information in the states' automated criminal history records and require the ATF to review states' records to determine whether prohibiting factors exist.
Improvements Are Needed in the Brady Operations Branch
We found that the Brady Operations Branch does not have sufficient resources to execute its responsibilities effectively. Insufficient staffing resulted in extensive NICS case backlogs during peak seasons, which delayed the referral process and affected the timeliness of investigations of standard denials. As of December 2003, the Brady Operations Branch had a backlog of 9,230 NICS referrals. As of mid-June 2004, a backlog of 2,819 NICS referrals remained. Subsequent to our review, the ATF Brady Operations Branch Chief submitted a request to ATF headquarters for two contract employees to supplement the specialist staff. As of mid-June 2004, this request had not been funded.
We also found that insufficient funds were provided for upgrading computer hardware and software to improve the operational efficiency of the Brady Operations Branch. These upgrades would allow the Brady Operations Branch specialists to scan and automatically forward FFL and court documents to the division offices, enable Brady Operations Branch management to monitor the processing timeliness, allow specialists to document the qualifying criteria, enlarge the space for specialists to type their comments, and allow specialists to automatically identify instances in which the prohibited person either made or attempted multiple purchases. The Brady Operations Branch requested funds to upgrade its computer system but did not receive this funding.
Few NICS Cases Are Prosecuted
A June 28, 2001, memorandum from the Attorney General directed the U.S. Attorneys to "make it a priority to enforce the law against those persons who attempt to subvert the legitimate crime prevention objectives of the Brady Act and to incorporate this new focus into [their] comprehensive prosecutive efforts." During CYs 2002 and 2003, approximately 120,000 cases were referred by the FBI to the Brady Operations Branch. Of these cases, the ATF formally referred only 230 to the USAOs, and the USAOs accepted 185, or 80 percent for prosecution.3 Of these cases, 154 were prosecuted.
We believe that the number of referrals and prosecutions is low because of the difficulty in obtaining convictions in NICS cases. These cases lack "jury appeal" for various reasons. The factors prohibiting someone from possessing a firearm may have been nonviolent or committed many years ago. The basis for the prohibition may have been noncriminal (e.g., a dishonorable discharge from the U.S. military). It is also difficult to prove that the prohibited person was aware of the prohibition and intentionally lied to the FFL. We were also told that in parts of the United States where hunting historically has been part of the regional culture, juries are reluctant to convict a person who attempted to purchase a hunting rifle.
Our recommendations focus on the need to centralize at the Brady Operations Branch the screening and referral of NICS cases that the ATF receives from the FBI examiners. Centralization would reduce delays in getting firearm retrieval cases to the ATF field investigators and make it more likely that only standard denial cases with prosecutorial merit are referred to them.
We recommend that: