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 Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is responsible for ensuring that firearms remain out of the hands of persons prohibited by law from possessing firearms (prohibited persons) and for investigating criminal attempts to evade the requirements of the Brady Handgun Violence Prevention Act (Brady Act) of 1993 (Public Law 103-159).
The Office of the Inspector General (OIG) reviewed the ATF's enforcement of violations of the Brady Act 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 Brady Act violations referred to it by the FBI, whether the ATF timely retrieved firearms issued to prohibited persons, and the extent to which Brady Act violations were referred to and prosecuted by the U.S. Attorneys' offices (USAO).
Legislative History of the NICS
The Gun Control Act of 1968 (GCA), Public Law 90-618, established rules and regulations for persons engaged in the business of buying and selling firearms.4 The GCA also identified nine categories of persons prohibited from possessing firearms:
The Brady Act, enacted on November 30, 1993, created a 3-day waiting period before a purchaser can take possession of a firearm. It also established a background check system that firearms dealers were required to contact before the transfer of any firearm to ensure that the person receiving it was not prohibited under the GCA from possessing a firearm.5 The NICS, developed by the FBI in coordination with the ATF and local and state law enforcement agencies, became operational on November 30, 1998.
The NICS Process
To purchase a firearm, a person must provide photo identification to the federal firearms licensee (FFL) and complete ATF Form 4473 (Firearm Transaction Record). This form requires the prospective buyer to provide biographical data and to check a "yes" or "no" box pertaining to each of the nine categories of prohibited persons. If the prospective buyer checks a "yes" box for any of the categories, the FFL must deny the sale. If the prospective buyer checks a "no" box for all of the categories, the FFL must request a background check through the NICS before transferring the firearm. To do this, the FFL calls either a state point of contact (POC) or the FBI.6 Those contacting the FBI can either phone one of two FBI contracted call centers or conduct their own background check by accessing the NICS E-Check system via the Internet.7
During calendar year (CY) 2002, the NICS processed 8.5 million background checks (4.3 million by the FBI; 4.2 million by POC states). During CY 2003, the NICS processed 8.5 million background checks (4.5 million by the FBI; 4 million by the POC states). The number of background checks has remained relatively constant since the NICS was implemented in November 1998, as shown in Figure 1.
|Figure 1: Number of NICS Background Checks Processed
[Not available electronically]
When a name is submitted for a background check, the NICS searches three databases for disqualifying information:
If the call center operator finds no matching records in any of the three databases, the operator advises the FFL to proceed with the firearms transfer. The call center operator provides the FFL with a NICS transaction number, which the FFL is required to record on ATF Form 4473. According to the FBI, in CY 2003, call center operators gave an immediate "proceed" response 74 percent of the time.
If a matching record is found, the operator transfers the call to the FBI's NICS Section for review and evaluation by a NICS examiner, who has access to detailed information on criminal records and other disqualifiers (which the call center operator does not). In CY 2003, call center operators transferred 26 percent of the calls to NICS examiners. The examiner determines whether the NICS record is complete, whether the record matches the prospective buyer, and whether the record indicates that the person is prohibited from possessing a firearm. If the data field "Country of Citizenship" contains anything other than "United States," the NICS automatically initiates an Immigration Alien Query (IAQ) through the Department of Homeland Security's Bureau of Immigration and Customs Enforcement's (ICE) databases. If the name match is not valid (i.e., the person purchasing the firearm is not the same person with the record) or if no prohibitive criteria exist, the NICS examiner gives the FFL permission to proceed. If prohibitive criteria exist, the NICS examiner advises the FFL to deny the firearm transaction. In CY 2003, NICS examiners provided the FFL with an immediate determination as to whether the person was prohibited for 18 percent of the 26 percent of the requests sent to the NICS Section.
If more research is needed to make a determination, the NICS examiner advises the FFL to delay the firearm transaction (additional research was required in 8 percent of the CY 2003 requests).9 Once the research is completed, the NICS examiner relays the results to the FFL.
In CY 2002, the FBI denied 60,739 transactions (1.4 percent of the total transactions); in CY 2003, the FBI denied 61,170 transactions (1.4 percent of the total transactions). In over half of these denials, the person either had been convicted of or was under indictment for felonies or had been convicted of domestic violence crimes, as shown in Table 1.
Table 1: Reasons for NICS Denials
CY 2002 and CY 2003
|Source: FBI NICS
* "Other" includes aliens, persons dishonorably discharged from the U.S. Armed Forces, persons who have renounced their citizenship, and persons who are prohibited by a state from possessing a firearm.
If the NICS examiner has not made a determination by the end of the third business day, the NICS examiner advises the FFL of its right under the Brady Act to allow the firearm transfer, a "default proceed." This situation occurred with 73,500 background checks in CY 2002 (1.73 percent of the total processed) and with 84,520 background checks in CY 2003 (1.93 percent of the total processed).10 The NICS examiner continues to research the case to determine whether any prohibitive criteria exist. If the person is subsequently found to be prohibited from possessing a firearm and the NICS examiner determines that the FFL transferred the firearm, the NICS examiner issues a "delayed denial."
FFLs transferred firearms to persons that the FBI identified as prohibited in 3,429 cases in CY 2002 and 3,601 cases in CY 2003. During these two years, over 60 percent of firearm transfers went to persons prohibited because they were convicted of or were under indictment for felonies or were convicted of misdemeanor crimes of domestic violence. See Table 2 for details.
Table 2: Firearm Retrieval Referrals - Reasons for Denials
|Source: FBI NICS
* "Other" includes disqualifiers identified during research that were not included in the existing databases (e.g., when the NICS examiner calls a locality, he or she may find out that there is an active warrant or an arrest exists that had not been entered into NCIC or III).
The FBI refers all denials, including both delayed denials and standard denials (prohibited persons who attempted to purchase a firearm but were denied within three business days) to the ATF's Brady Operations Branch.
Department of Justice (DOJ) Components Involved in the NICS Process
The FBI operates and maintains the NICS. According to its mission statement, the FBI's NICS Section is responsible for "aggressively reviewing and analyzing available records in accordance with the provisions of the Brady Handgun Violence Prevention Act of 1993 and regulations thereunder."
The NICS Section is one component within the FBI's Criminal Justice Information Services (CJIS) Division. The CJIS, located in Clarksburg, West Virginia, also includes program operations pertaining to NCIC, Uniform Crime Reporting, and fingerprint identification.
As of January 2004, the NICS Section consisted of 513 employees and was in the process of adding 35 employees. According to FBI officials, NICS staffing generally has remained stable since the NICS was implemented. NICS examiners are available to accept calls seven days a week, from 8 A.M. to 1 A.M., closing only on Christmas day.
The monthly workload has remained stable since the NICS was first implemented, peaking during September through December and declining during May through July. FBI NICS officials stated that they are able to predict the hourly volume of calls and therefore are able to ensure that the phone lines are adequately staffed during peak hours and to rotate their staff to other tasks during slow periods. The busiest day of the year for firearm sales typically is December 23, which in 2003 hit a new high with 54,000 NICS transactions.
The ATF Brady Operations Branch
The ATF's Brady Operations Branch in Martinsburg, West Virginia, reviews NICS denials received from the FBI and refers denials that require additional investigation to the appropriate ATF division office. The Brady Operations Branch also serves as a liaison with the FBI on NICS issues, responds to firearms dealer inquiries regarding the NICS, and analyzes data from NICS denials to identify trends of illegal firearms trafficking and other crimes.
As of April 2004, the Brady Operations Branch consisted of 14 employees and 1 contractor, including 7 specialists who review FBI NICS referrals. Each specialist is responsible for the denials pertaining to specific ATF divisions.
The FBI electronically transmits both delayed denials and standard denials daily to the Brady Operations Branch. The Branch's specialists process delayed denials immediately and forward them to the field. To do this, a specialist electronically accesses the transaction screen to review the FBI notes on the denial; contacts the FFL for a copy of ATF Form 4473; and, if necessary, accesses various law enforcement databases to verify criminal history data. The specialist also contacts local law enforcement, court clerks, or others for copies of supporting documentation. The specialist then adds any applicable notes pertaining to the denial and saves the referral. This action automatically creates a case in NFORCE, the ATF's electronic case management system, and transfers it to the NICS coordinator at the appropriate ATF field division office. The specialist also faxes or mails to the appropriate NICS coordinator copies of documents obtained from the FFL or local criminal justice or other public agencies. Because delayed denials require that the ATF retrieve the firearm, all cases are forwarded to the field for immediate action.
Standard denials are processed in the order received. In contrast to the delayed denials, only a small percentage of standard denials are forwarded to the field because of the large volume (approximately 60,000 a year) and limited investigative resources. As a result, the specialists forward only those cases that have prosecutorial merit.11 These cases are processed and forwarded in a manner similar to the delayed denials.
During CY 2002, the Brady Operations Branch forwarded 7,897 (13.2 percent) of the 59,778 standard denials it processed to the field. During CY 2003, the Branch forwarded 5,606 (10.7 percent) of the 52,606 standard denials it processed to the field. The proportion of standard denial referrals forwarded to those not forwarded is shown in Figure 2.12
|Figure 2: Number of Standard Denials Either Closed |
by the ATF Brady Operations Branch
or Sent to the ATF Field Divisions for Investigation
CY 2002 and CY 2003
[Not available electronically]
ATF Division Offices
During CYs 2002 and 2003, the Brady Operations Branch forwarded 6,286 delayed denial referrals and 13,503 standard denial referrals to 17 of its 23 division offices for further investigation. Figure 3 shows the number of each type of referral sent to each ATF division office.13
|Figure 3: Number of NICS Cases Received by the ATF Field |
Divisions From the ATF Brady Operations Branch
CY 2002 and CY 2003
[Not available electronically]
Each ATF division office designates a NICS coordinator to process the referrals from the Brady Operations Branch. Eleven of the NICS coordinators (65 percent) at the 17 division offices that receive referrals are special agents.14 All NICS coordinators have other duties; 12 of the 17 NICS coordinators told us that they spend less than 30 percent of their time on NICS activities.
Each NICS coordinator conducts further reviews of the referrals and disseminates them to the appropriate field or satellite office.15 The extent of the additional review varies among the division offices. At some division offices, the NICS coordinator only identifies the appropriate field or satellite office and forwards the referral to that office. At other division offices, the NICS coordinator immediately forwards the delayed denials to the appropriate field or satellite office but further screens the standard denials to ascertain prosecutorial merit, using written or verbal USAO criteria or the NICS coordinator's knowledge of the types of cases that have been prosecuted by the USAOs.
ATF Field and Satellite Offices
When the division NICS coordinator determines that a referral requires a retrieval or merits investigation, the coordinator electronically transfers the referral to the resident agent in charge (RAC) or group supervisor at the appropriate field or satellite office, who then usually assigns the referral to a special agent for investigation.
For delayed denials, an ATF special agent at the field or satellite office is required to retrieve the firearm from the prohibited person. Although this action is termed a "retrieval," it is rare that the special agent physically retrieves the firearm. This action is only taken when the prohibited person is considered dangerous or when the prohibited person is uncooperative in disposing of the firearm. Other actions categorized by the ATF as retrievals include voluntary return of the firearm by the prohibited person to the FFL, abandonment of the firearm by the prohibited person, seizure by local law enforcement (which usually occurs when the prohibited person has committed a crime), or a third party transfer (in which a prohibited person is permitted to transfer the firearm to a third party of his or her choosing, provided that the third party does not reside with the prohibited person and agrees not to provide the prohibited person with access to the firearm). The ATF may refer these prohibited persons to USAOs for prosecution, depending on the circumstances of the cases.16
For standard denials, the ATF investigates only those cases that have prosecutorial merit. In those cases, the prohibited persons may be referred to USAOs for prosecution, depending on the outcome of the investigation.
The 94 USAOs prosecute criminal violations of federal laws. In NICS cases, prospective firearm purchasers are normally charged with intentionally lying on ATF Form 4473 by not indicating their prohibited status. NICS cases are generally prosecuted under two statutes: Title 18 U.S.C. 922(a)(6) and Title 18 U.S.C. 924(a)(1)(A). Title 18 U.S.C. 922(a)(6) states that it is unlawful:
for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter.17
Title 18 U.S.C. 924(a)(1)(A) states that whoever "knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter or in applying for an license or exemption or relief from disability under the provisions or this chapter" shall be fined under this title, imprisoned not more than five years, or both.
Table 3 shows the number of referrals USAOs received under those two statutes, case filings (instances in which formal charges were filed), and case terminations (convictions, acquittals, or dismissals) during fiscal years (FY) 2002 and 2003. The referrals include ATF referrals of Brady Act cases identified through the NICS. According to the Executive Office for U.S. Attorneys (EOUSA), these referrals also include prosecutions of illegal gun traffickers and "straw purchasers" (individuals with clean records who purchase firearms for prohibited individuals). The EOUSA's case management system, the Legal Information Office Network System (LIONS), categorizes case data by federal statute and fiscal year, and therefore we were unable to obtain specific data related to NICS cases for CYs 2002 and 2003.
Table 3: Referrals, Case Filings, and Case Terminations Under Title
18 U.S.C. 922(a)(6) and Title 18 U.S.C. 924(a)(1)(A), By Defendant
FY 2002 and FY 2003
|FY 2002||FY 2003||Totals|
|Source: Executive Office for U.S. Attorneys|
The prosecutorial results of ATF investigations of NICS referrals initiated during CYs 2002 and 2003 are shown in Table 4. This table shows the number of defendants referred to the USAO, accepted by the USAO for prosecution, prosecuted, and found guilty.
Table 4: Prosecutorial Results of ATF NICS Cases Referred
CY 2002 and CY 200318
|Category||CY 2002||CY 2003||Totals|
|Source: Executive Office for U.S. Attorneys|
Scope and Methodology of the OIG Review
We conducted our fieldwork from November 2003 through March 2004. Our review encompassed only those NICS background checks performed by the FBI, not by the POC states. At ATF headquarters, we interviewed officials from the Office of Firearms, Explosives, and Arson and the Office of Field Operations and obtained workload statistics on the ATF's field office operations.
In January 2004, we visited the FBI's NICS Section in Clarksburg, West Virginia. We toured the facility, obtained workload data, and interviewed relevant officials.
During January 2004, we also visited the ATF's Brady Operations Branch in Martinsburg, West Virginia. While on site, we interviewed the Branch Chief, the specialists and their supervisor, the information technology manager, and others. We also obtained workload statistics. In addition, we reviewed a random sample of 100 denial transactions forwarded to the ATF Brady Operations Branch by the FBI during CYs 2002 and 2003 to determine whether the FBI was referring denials to the ATF on a timely basis and whether the Brady Operations Branch specialists were processing denials on a timely basis, properly referring denials to ATF field offices in accordance with USAO criteria, and adequately documenting the basis for their decisions.
During February 2004, we visited ATF division offices and USAOs in New Orleans, Louisiana; Kansas City, Missouri; St. Paul, Minnesota; and Columbus, Ohio. At the ATF division offices, we interviewed the special agent in charge (SAC); the assistant special agents in charge (ASAC); the NICS coordinator; a group supervisor or RAC located in, or responsible for, each state within the division (we selected the field office with the largest volume of NICS referrals in that state); and other officials. At each division office, we reviewed a random sample of 50 standard denials and 50 delayed denials that had been forwarded to the division office by the Brady Operations Branch during CYs 2002 and 2003. For the standard denials, we reviewed whether the division or field office's decision to close the case or initiate an investigation was made in accordance with USAO guidelines and whether the investigation was opened and completed on a timely basis. For the delayed denials, we reviewed whether the investigation was opened and closed on a timely basis, the firearm was recovered from the prohibited person, the firearm was used in the commission of a crime prior to recovery, and the decision to refer the case for prosecution was made in accordance with USAO guidelines. At the USAOs, we interviewed U.S. Attorneys (USA) and Assistant U.S. Attorneys (AUSA) responsible for prosecuting NICS cases.
During March 2004, we called the designated NICS coordinators assigned to the 19 ATF division offices that we did not visit to obtain information on procedures, training, and workloads.
We also obtained information and statistics from the EOUSA and the ATF on referrals and prosecutions of NICS cases.