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 ATF Does Not Always Make Timely Firearms Retrievals
Of the 188 delayed denial referrals in our sample for which investigations were completed, the ATF resolved 110 (59 percent) of the cases within a month and 158 (84 percent) within three months.20 Results varied during the 1-month resolution period among the four divisions included in our sample: 74 percent in the Kansas City division, 61 percent in the Columbus division, 57 percent in the St. Paul division, and 43 percent in the New Orleans division.21
Because some cases can reasonably take longer than a month to resolve, we reviewed the investigative case files to determine whether any showed delays in case resolution. We defined delays as two weeks or more to initiate an investigation or two weeks of unexplained inactivity once the investigation had begun. Using these criteria, we determined that delays occurred in 65 (35 percent) of the 188 cases. Of the four divisions in our sample, we determined that delays occurred in 49 percent of our New Orleans sample (24 cases), 37 percent of our St. Paul sample (17 cases), 30 percent of our Columbus sample (14 cases), and 21 percent of our Kansas City sample (10 cases).
Figure 4 shows the amount of time it took the ATF to resolve the 188 delayed denials and the number of cases in which delays occurred.
Figure 4: Processing Times and Timeliness
Sample of Delayed Denials
Source: OIG Sample
Cases in which delays occurred included the following examples:
Our review identified a number of reasons for these delays, as discussed below.
Delayed Denials Are Not Forwarded Directly to Field Offices
The Brady Operations Branch does not electronically transfer delayed denials directly to the appropriate ATF field or satellite office for investigation. Instead, it transfers the delayed denials to one of 17 ATF division offices, which in turn is supposed to immediately transfer them to the appropriate ATF field or satellite office. Not only does this process create an unnecessary step, but it also delays initiating a firearm retrieval when the NICS coordinator does not transfer these cases timely.
In addition, because carrying out NICS responsibilities is a part-time function for the NICS coordinators, they do not always access the system on a daily basis. As a result, it can be several days before a coordinator notices the delayed denial. In addition, unless the division has assigned a back-up coordinator, absences by the coordinator due to other assignments or annual or sick leave can result in additional delays. In fact, at one of the divisions we visited, the field offices attributed excessive delays in 14 of the 100 cases in our sample to delays on the part of the NICS coordinator in forwarding the cases to the field. Of these cases, five involved firearm retrievals. The amount of time it took to forward these cases to a field office ranged from 3 months to 13 months.
Delays in referring these denials to the field also diminish the sense of urgency among special agents. A group supervisor at one of the field offices that had not been receiving denial referrals timely stated that the attitude among his special agents was that if delayed denials were not a priority for the division office, why should they be a priority for the field offices.
We discussed with Brady Operations Branch officials the alternative of bypassing the division offices and referring the delayed denials directly to the field and satellite offices. The officials agreed that this would improve the timeliness of the process, but stated that NFORCE is technically unable to transfer these cases to the field offices. They further stated that a couple of years ago the ATF considered developing such a direct case system, but the project was dropped due to a lack of funding.
NICS Subjects Are Not Considered Dangerous
The special agents we spoke with generally commented that they do not consider the vast majority of NICS referral subjects a danger to the public because the prohibiting factors are often minor or based on incidents that occurred many years in the past. For example, one group supervisor cited a retrieval case in which the person was prohibited from owning a firearm because of a felony conviction for stealing four hubcaps from a car. In another example, a Brady Operations Branch specialist cited a case where the person was prohibited due to a 1941 felony conviction for stealing a pig. We also were told that "bad guys" generally do not purchase their firearms through legitimate dealers; instead, they have someone with a clean record purchase the firearm for them (known as a "straw purchase") through an FFL, buy a firearm on the black market, or purchase the firearm at a flea market or gun show from a non-FFL.22 Because agents do not consider most NICS subjects dangerous, they do not consider it urgent to retrieve the firearms.
Some of the 500 NICS cases we reviewed supported this perception.23 Of the 229 instances in our samples for which we could identify the date of the crime, 110 (48 percent) of the crimes had occurred at least 5 years previously (30 of these, or 13 percent, had occurred at least 20 years previously). These cases included a breaking and entering from 1958, a check forgery from 1959, a burglary from 1968, an attempted burglary from 1963, and a domestic violence case from 1964. Further, some of the prohibiting factors in our sample were for nonviolent crimes such as:
It is understandable that ATF special agents prioritize their workloads by focusing on subjects who are perceived as a greater danger to the community. However, each retrieval represents a person who illegally possesses a firearm. Because someone has committed only nonviolent crimes in the past does not mean that he or she is not capable of using the illegally obtained firearm to commit a violent crime.
In fact, our sample includes a case in which a person who was prohibited from owning a firearm because of a nonviolent crime (possession of marijuana) subsequently used the 9mm pistol he had purchased to commit a violent crime. In this instance, an ATF field office special agent had initiated a timely investigation, but placed it on hold after a month because he could not locate the subject (the subject provided a fictitious address to the FFL). Eight months later, the local police department notified the special agent that the subject had been arrested for aggravated assault using the illegally obtained firearm.
Staffing and Geographic Constraints Exist
All 10 of the division office SACs and ASACs and 10 of the 13 field office RACs and group supervisors we interviewed stated that they had insufficient resources to investigate the volume of NICS referrals their offices received. This is particularly true at the satellite offices, often staffed by only one or two special agents. For example, the St. Paul SAC noted that the satellite office in Missoula, Montana, is staffed by one agent who currently has a backlog of about 30 NICS cases in addition to a substantial criminal caseload.
Because of resource limitations, ATF special agents often are pulled from processing NICS cases to work on arson, firearms trafficking, and explosion cases. To reduce NICS case backlogs, the field offices either periodically shut down all other operations for a month or more or detail special agents from the division offices or other field offices to help out.
NICS investigations are labor- and time-intensive. The special agent must first determine whether the person is actually prohibited from possessing a firearm and whether the firearm was transferred to the person. This requires examining criminal histories, obtaining court records, obtaining contact names and addresses, attempting to contact the person, confirming those instances in which the person either returned the firearm to the FFL or transferred the firearm to a third party, and on occasion contacting local law enforcement agencies to determine whether the person is a threat.
Along with staffing shortages, the large geographic territories covered by some of the ATF field offices contribute to the delays in retrieving firearms. Some of the larger states contain few ATF field offices. The special agents generally retrieve more firearms in rural areas than in urban areas where ATF field offices are often located. When a field office territory covers hundreds of miles, a firearm retrieval can consume a special agent's entire day. Because of potential danger, two special agents are required to perform a retrieval. Because of these factors, special agents sometimes wait until they have multiple retrievals or other investigations to conduct in an area.
The lack of resources to investigate all NICS cases has been a continuing problem. An ATF policy memorandum dated December 5, 2000, stated, "Since the full implementation of the Brady Bill in November 1998, we have experienced a critical shortage of investigative resources necessary for meeting our NICS/Brady investigation and other statutory responsibilities." In November 2001, the Department of the Treasury's OIG report on the ATF's NICS program noted staffing deficiencies related to the large influx of NICS cases and recommended that the ATF develop case workload studies and staffing models to assess and respond to the NICS program's impact on field division resources.24 Although the ATF agreed in its response to implement this recommendation, our review found that the problems detailed in the Treasury OIG report continue to exist.
One of the field offices in an ATF division we visited is using its investigative analyst, who is supervised by the RAC, to perform administrative tasks associated with a NICS investigation, such as sending initial contact letters to prohibited persons who obtained firearms and making the arrangements for third party transfers. Special agents are needed only when a firearm retrieval is required. According to the RAC, using an investigative analyst for these tasks has significantly reduced the NICS special agent workload in his field office.
Because of the shortage of support personnel in many field offices, using investigative analysts to work NICS cases usually is not feasible. In lieu of using support personnel to assist with NICS cases, special agents suggested hiring contractors, preferably retired ATF special agents or ex-law enforcement personnel, to perform these functions. We believe this merits consideration, since requiring special agents to perform these primarily administrative duties is not an efficient use of resources.
No Timeliness Standards Exist
We found that the ATF does not have timeliness standards for firearm retrievals. When the NICS was first initiated, the ATF required its agents to initiate a delayed denial investigation and retrieve the firearm within five days of receiving the case. In fact, the ATF's procedural guidelines, "NFORCE and NICS/Brady Referrals," still refer to these as "5-day turn-around" cases. Some of the special agents in the field stated this standard was unreasonable. A June 17, 1999, ATF policy memorandum stated, "In responding to the delayed referrals the 5-day reporting requirement is no longer in effect." The memorandum did not establish different standards, instead stating, "Priority consideration should be given to referrals where a firearm has been transferred." The memorandum further stated, "Since the persons receiving the firearm in these instances maybe [sic] a prohibited person, it is imperative that investigations be initiated per established criteria in a timely manner."
Because the retrieval of firearms from prohibited persons is an ATF priority, we believe that the ATF should establish timeliness performance standards and track field office performance. Due to the lack of standards and timeliness monitoring, ATF management is unable to quickly identify and address delays in retrieving firearms.
ATF management disagreed that timeliness standards should be established for the completion of a case. Instead, subsequent to our review, they revised the written procedures to state, "It is imperative that delay denials be handled promptly and not be allowed to linger without investigative action." We do not believe that this general admonition is sufficient. In our opinion, the ATF should establish standards to ensure timely firearm retrievals.
Recommendation 1: The ATF should modify its NFORCE system to allow the Brady Operations Branch to refer delayed denials directly to the appropriate ATF field office.
Recommendation 2: The ATF should use non-agent personnel to handle the administrative tasks related to NICS cases.
Recommendation 3: The ATF should establish timeliness standards for firearm retrievals and develop a system for ATF field office management to monitor and report on compliance with these standards.
Firearms Retrieval Procedures Are Inadequate
Deficiencies in the Use of Initial Contact Letters
In many cases, giving a prohibited person the opportunity to voluntary surrender an improperly transferred firearm before sending an agent to retrieve it is an efficient use of ATF resources. We noted, however, that ATF field offices did not always send contact letters on a timely basis, did not specify a time frame for the person to respond, and did not always take action timely if there was no response.
ATF policy allows a standardized "contact letter" for prohibited persons who inappropriately received firearms as a result of a NICS delayed denial. The contact letter advises the recipient that records indicate that he or she is prohibited from possessing a firearm and asks the person to contact the ATF field office regarding options for lawfully disposing of the firearm. The contact letter is not used if the investigation is likely to result in prosecution of the recipient of a firearm.
At the four ATF divisions we visited, we found a wide variance in the use of contact letters. Overall, in the 123 cases in our sample that required a firearm retrieval, 31 initial contact letters (25 percent of the cases) were sent.25 Of the four ATF divisions in our sample, special agents in the St. Paul division used initial contact letters most often (12 letters representing 40 percent of their required retrieval cases), and special agents in the Kansas City division used initial contact letters least often (2 letters representing 7 percent of their required retrieval cases).
The general consensus of the division and field office agents we interviewed was that contact letters were effective in retrieving firearms. In their opinion, most of the persons they contacted did not realize that they were prohibited from owning firearms and were cooperative when asked to dispose of the firearms. One group supervisor stated that when his office sent a contact letter, the prohibited person responded 90 percent of the time. Another group supervisor noted that one of the satellite offices had a 100 percent success rate with contact letters. In our sample, 16 of the 31 contact letters sent (52 percent) resulted in the person promptly disposing of the firearm.
Because of this successful response rate, sending contact letters can be an effective and efficient way for ATF to retrieve firearms. However, to be most effective, the ATF should send the letters promptly, specify a time frame for response, and take timely action if there is no response. We identified deficiencies in all of these areas.
We found cases with extensive delays between the time when the division office received the referral and when the initial contact letter was sent. Of the 29 initial contact letters in our sample for which we were able to determine the dates they were sent, 8 (28 percent) were sent a month or more after the case was received by the field. In four of these cases, the delays were slightly over a month; in the other four cases, the delays ranged from 48 days to 202 days. The latter cases are described in Table 5.
Table 5: Examples of Delays in Sending Initial Contact Letters
|Amount of Delay||Reason for Prohibition||Reason for Delays|
|48 days||Misdemeanor domestic violence conviction||Unable to determine|
|62 days||Felony conviction (possession of sawed-off shotgun)||Case was assigned to single-agent satellite office|
|185 days||Misdemeanor domestic violence conviction (beat pregnant wife)||Field office cited other investigative priorities as the reason for the delay|
|202 days||Felony indictment (criminal mischief)||Field office cited other investigative priorities as the reason for the delay|
|Source: OIG Sample|
In addition, the ATF's standard contact letter does not specify a time frame within which the firearm's owner must contact the ATF. The letter states only that the recipient should contact the ATF "as soon as possible." Further, the ATF has no guidelines for how long the field should wait before following up. One group supervisor we spoke with had established his own policy, requiring that his agents take action to retrieve a firearm if the person did not respond within 48 hours. All the other field offices we contacted indicated that the individual case agent decided when to follow up. In addition, we found that in 7 of the 31 cases (23 percent), the field office sent a second letter.
To maximize the effectiveness of contact letters, the ATF needs to revise its letters to include a response time frame, improve its timeliness in sending the letters, monitor the response time, and take timely action when the letter is not effective in garnering a response.
Special Agents Do Not Always Document Third Party Transfers, Returns of Firearms to the FFL, and Seizures of Firearms by Local Law Enforcement
The ATF rarely seizes a firearm from a prohibited person.26 In most instances, the prohibited person opts to transfer the firearm to a third party or return the firearm to the FFL. In some cases, the prohibited person voluntarily surrenders the firearm to local law enforcement officials, or local law enforcement officials seize the firearm. In our sample, of the 114 completed cases requiring a firearm retrieval, 59 (51 percent) involved third party transfers, 36 (32 percent) involved returns to the FFL, 12 (10 percent) involved seizures by either the ATF or local law enforcement agencies, and 4 (4 percent) involved abandonments.27
In cases in which the ATF does not seize the firearm, it is important for the ATF to document that the prohibited person no longer possesses the firearm and therefore that its retrieval actions were successful. The ATF does have written policies requiring documentation of third party transfers. According to a December 5, 2000, ATF policy memorandum, "Should the firearm be transferred to a 3rd person, the acknowledgement (Exhibit 3) signed by the original purchaser, the 3rd party AND the investigating agent must be executed and made a part of the investigative file." We were unable to find similar written requirements for documenting returns of firearms to the FFLs or for seizures by local law enforcement agencies.
We noted significant documentation deficiencies in our sample. For example:
We found considerable disagreement among ATF field special agents as to whether documentation is required, particularly in third party transfers. Despite the requirements of the policy memorandum, some special agents told us that they believed that a verbal assurance from a third party was sufficient. We disagree. In addition to the intrinsic value of having such documentation, the documentation could be used as an evidentiary tool should the third party be prosecuted for violating the agreement by allowing the prohibited person to have access to the firearm.
ATF management agreed with our findings and, subsequent to our review, revised its written procedures to require that special agents document third party transfers, returns of firearms to the FFLs, and seizures of firearms by local law enforcement agencies.
Background Checks of Third Parties Are Not Always Conducted or Documented
According to a December 5, 2000, ATF policy memorandum, third party transfers "should be made to a non-prohibited individual." According to an ATF headquarters official, although the policy does not specifically require that the ATF agent conduct a background check of the individual to whom the firearm is transferred, the ATF expects the agent to conduct an independent check instead of relying solely on the word of the third party.
We found, however, that of the 59 cases in our sample in which there was a third party transfer, in only 24 cases (41 percent) did the investigative case file indicate that a background check had been performed on the person to whom the firearm was being transferred. For the four ATF division offices we visited, the percentage of cases for which there was documentation ranged from 7 percent (1 case out of 14) in the Columbus division to 58 percent (11 cases out of 19) in the St. Paul division.
ATF management agreed with our findings and, subsequent to our review, revised its written procedures to require the special agent to ensure that the third party is not a prohibited person.
Recommendation 4: The ATF should revise its standard initial contact letter to include a response time frame and should direct its personnel to send the letters on a timely basis, to track responses to the letters, and to take timely action to retrieve the firearms when the letters are unsuccessful in eliciting a response.
ATF Field Offices Receive Too Many Standard Denial Cases That Are Unlikely to Be Prosecuted
By all accounts, the ATF considers the investigation of standard denials to be a low priority. All of the SACs, ASACs, RACs, and group supervisors we spoke with stated that, with the exception of firearm retrievals, NICS cases were not a priority. This field attitude reflects ATF headquarters policy. An ATF policy memorandum dated June 17, 1999, stated that NICS cases, "are not to be worked at the expense of higher priority investigative matters as determined by the respective Division management team. Because of our limited resources, [standard] referrals meeting the criteria set by ATF and respective U.S. Attorneys should be processed according to the severity of the disqualifying convictions, the presence of multiple attempts to purchase firearms, and the availability of division resources."
Field special agents also told us that NICS cases required extensive time and resources, but were rarely prosecuted. Special agents we interviewed called the cases "pointless and overwhelming" and a "drain on resources" and stated that they can "barely keep up" with the workload. One group supervisor stated that his agents "cringe" when assigned a NICS case. They also view these cases as detracting from more important cases, such as those involving firearms traffickers, gangs, arsons, and explosives. Although the special agents we spoke with acknowledged the need for firearm retrievals, they saw little purpose in investigating a standard case in which the NICS successfully prevented a prohibited person from purchasing a firearm.
We believe that the number of standard denials referred to field offices should be limited to cases that meet USAO prosecutorial guidelines. Our review found that ATF field offices are receiving too many standard denial referrals that are unlikely to be prosecuted according to USAO guidelines. This is adding unnecessary work to busy field investigators' caseloads and taking resources away from investigations of other crimes. The standard denial cases need to be better screened by both the Brady Operations Branch specialists and the division office NICS coordinators.
Over the years, the Brady Operations Branch has improved its screening process for standard denials it receives from the FBI. According to Brady Operations Branch management, the proportion of the standard denials it referred to the field has been reduced from a high of 40 to 50 percent, when the program was first initiated in 1999, to 22 percent in FY 2003 and 17 percent in FY 2004. Although the number of standard denials sent to the field offices has been reduced, our review identified improvements that could be made to further reduce the workload. These improvements are discussed in the following sections.
The USAOs Have Not Provided Sufficient Prosecutorial Guidelines
While USAO prosecutorial guidelines are a critical tool for the ATF to manage its NICS case workload, we found that not all USAOs provided written guidelines. The Brady Operations Branch uses the guidelines to screen the 60,000 referrals it receives annually, sending only those cases that meet the USAO guidelines to the ATF division offices for investigation. The Brady Operations Branch can only identify NICS referrals by ATF division, and therefore it uses broader composite USAO guidelines developed from the specific USAO guidelines available for that division. For example, if individual USAO guidelines within a particular division specify different ages of felony convictions, the Brady Operations Branch will apply the oldest age to all the NICS referrals within that division. The division NICS coordinators generally use the more specific USAO guidelines to further screen the referrals they receive from the Brady Operations Branch, thereby limiting the number of NICS cases referred to the ATF's field offices.
We found that the guidelines that the USAOs provided were not always current or sufficiently specific to be useful. We also found that some of the division offices had received guidelines from their respective USAOs and were using them to perform their own screening, but had not forwarded these guidelines to the Brady Operations Branch as requested. Further, due to system limitations, Brady Operations Branch specialists are only able to identify NICS cases by federal judicial district, which greatly limits the extent of the screening that can be performed.
The ATF first instructed its division directors to obtain their respective USAO's guidelines via a policy memorandum dated June 17, 1999. At that time, only half of the USAOs responded in writing to the request. In 2003, the Brady Operations Branch made a similar request to the ATF division offices, and only half of the divisions responded. A January 29, 2003, memorandum from the Attorney General to all U.S. Attorneys, the ATF Acting Director, all ATF special agents in charge, and the EOUSA Director also stressed the importance of USAO prosecutorial guidelines for combating gun crimes. The memorandum stated, "To make the most of ATF's investigative resources, it is crucial that the U.S. Attorneys and ATF have a clear understanding of the guidelines for cases to be referred for Federal prosecution and cases that should be referred for state prosecution." The memorandum further directed the USAs and corresponding ATF special agents in charge to meet and confer on prosecutorial guidelines and criteria to ensure that they are fully coordinated on the investigation and prosecution of gun crimes.
However, as of April 2004, the Brady Operations Branch had been able to compile written criteria for only 7 of the ATF's 17 division offices that receive NICS referrals. The Brady Operations Branch chief stated that he was not sure whether the lack of responsiveness was due to the USAOs not responding or the division offices not following up.
In addition to reviewing the USAO guidelines used by the Brady Operations Branch, we obtained information on the available guidelines from the NICS coordinators and group supervisors or RACs at the four ATF division offices we visited (encompassing 25 of the 94 USAOs). Of these 25 USAOs, 8 had not provided guidelines to the ATF. Several of the ATF field office group supervisors told us that some of the USAOs are reluctant to provide written guidelines. One AUSA we spoke with stated that developing standard guidelines is not practical because of the range of gun crimes.
We believe that the USAOs should provide written guidelines to the ATF. The USAOs can add a qualifier to their guidelines stating that they will accept cases that do not meet the guidelines on a case-by-case basis, already a practice at those locations that have guidelines. In addition, standard guidelines are possible and are done by some USAOs that develop guidelines based on analyses of the cases that they successfully prosecute.
To be useful to the ATF, the guidelines also need to be specific and realistic. Fourteen of the 17 guidelines we reviewed appeared to be sufficiently specific. These guidelines identified the prohibiting factors most likely to result in successful prosecutions and set parameters for these factors, specifying types of crimes, ages of convictions, and numbers or patterns of convictions.28 One of the remaining three guidelines was overly broad because it merely listed all the prohibiting factors and stated that the USAO was interested in seeing all cases. Overly broad guidelines do not help the ATF screen cases. We were unable to assess the quality of two guidelines because they were not available at the division offices during our visit.
We also found that some guidelines were not realistic. For example, one NICS coordinator told us that he generally screens out any standard referrals in which a prohibited person attempted to purchase a long gun. He stated that the USAOs in the division's region will not accept these cases because they are in "hunting country," where these cases generally lack jury appeal.29 Our discussions with representatives from one of the USAOs in the district confirmed this. However, we noted that none of the written prosecutorial guidelines included the qualifier that a prohibited person who purchased a long gun would normally not be prosecuted. In addition, because priorities change, it is important that the USAOs review and update their guidelines annually. We generally found that this was not occurring.
Brady Operations Branch specialists currently can distinguish each denial transaction only by ATF division office, not by federal judicial district. Brady Operations Branch management agreed that the capacity to screen by individual federal judicial district would help reduce the volume of referrals to the field offices because they would be able to screen for criteria specific to a particular USAO instead of using broader criteria. They stated that with additional funding, FFL identification numbers could be matched to a particular federal judicial district. Developing the technological capacity to enable the Brady Branch specialists to screen using individual USAO guidelines would eliminate the need for the NICS coordinators to perform additional screening. In the interim, more complete USAO guidelines would help the NICS coordinators better screen NICS referrals.
More Screening Needs to Be Done by the Division Offices
Although additional screening by NICS coordinators at the ATF division offices can reduce the flow of standard denial cases to the field offices, we found that not all NICS coordinators screen these cases. Six (35 percent) of the 17 division offices that receive referrals from the Brady Operations Branch are not screening referrals before forwarding them to the appropriate field or satellite office.30
Our sample of 50 standard denials selected from each of four division offices we visited showed a wide variation in the number referred to field and satellite offices. One (Columbus) performed no screening, and therefore forwarded 100 percent of the standard denials it received. Of the three division offices that screened the standard denials, New Orleans screened out 6 percent (forwarding 94 percent), Kansas City screened out 36 percent (forwarding 64 percent), and St. Paul screened out 84 percent (forwarding 16 percent).
One NICS coordinator stated that his field offices want to see all standard denials because they view them as having potential intelligence value. This argument is questionable because initial screening done by the Brady Operations Branch leaves the division offices with only a small fraction of the standard denials to review. In our opinion, NICS coordinators who do not further screen denial referrals are transferring the burden to the busy field offices.
NICS Coordinators Need Training and Written Guidance
The ATF could improve its screening of NICS cases by providing training and guidance to the NICS coordinators. During our telephone interviews with NICS coordinators, we found some of the coordinators were unfamiliar with the NICS program. For example, a NICS coordinator assigned to an ATF division with a large NICS workload had little understanding of the NICS process and mistakenly believed that the FBI, not the Brady Operations Branch, was sending her copies of court documents.
We found that few of the NICS coordinators received training on the NICS program. Only six of the current NICS coordinators had attended the last NICS training conference, which was held in 2000. The majority of the NICS coordinators we spoke with indicated that they would like to attend a NICS conference. According to the Chief of the Brady Operations Branch, the Branch used to host NICS coordinator conferences but had not done so for several years due to the lack of funding. In April 2004, the Chief informed us that a 1-week conference has been tentatively scheduled for the summer of 2004, pending funding approval. The conference is to be held at the Brady Operations Branch and is to include a site visit to the FBI NICS Section.
In addition, the ATF has not provided the NICS coordinators with written guidance, which would provide more consistency in screening cases.
Fewer Alien Cases Should Be Forwarded to the Division Offices
We found that the Brady Operations Branch unnecessarily forwarded to the ATF division offices standard denial referrals pertaining to aliens that did not meet USAO guidelines. Further, the ATF has not issued any guidance to its division and field offices on what actions to take in relation to these cases. As a result, some division and field offices close these cases upon receipt without taking action; others refer these cases to the local ICE office, unaware that the Brady Operations Branch has already made the referral.
Illegal aliens and aliens admitted to the United States under a nonimmigrant visa are prohibited from possessing firearms.31 The Brady Operations Branch specialists forward to ICE all cases in which the person has indicated on ATF Form 4473 that he or she has a foreign place of birth. The following types of cases are also forwarded to the appropriate ATF division office:
The ATF has not provided procedural guidance to the field on how to handle these referrals. As a result, we found that NICS coordinators and field special agents were unclear on what actions to take on these cases. Two of the NICS coordinators we spoke with stated that they routinely close all cases that involve aliens as they receive them; the other 15 NICS coordinators stated that they refer these cases to the field for resolution. None of the field staff we spoke with were aware that the Brady Operations Branch routinely referred these cases to ICE. As a result, some of the division and field personnel also refer these cases to ICE.32 In fact, based on our review it appears that the only action, if any, the field offices take in relation to these types of cases is to refer them to ICE.
None of the cases in our sample that pertained to the alien prohibition resulted in investigations. Of our sample of 200 standard referrals, 22 (11 percent) were denials due to the alien prohibition. In none of these 22 cases did the person have a criminal record or other prohibiting factors. None of these cases resulted in investigative action - 6 were closed immediately upon receipt by the NICS coordinator, while the remaining 16 were forwarded to a field office where 14 were closed by a special agent without investigative action.33
In our opinion, the Brady Operations Branch should refer to the field only those alien cases that require a firearm retrieval or that meet USAO prosecutorial guidelines. If, however, the ATF determines that there is some useful purpose in referring these cases to the field, it needs to develop guidance to communicate its expectations about how the field offices are to respond.
Better Communication Needed Within the ATF
The volume of standard referrals being sent to the field could be greatly reduced with improved communication among the Brady Operations Branch, the ATF division offices, and the ATF field offices.
During our site visit, Brady Operations Branch specialists stated that they did not regularly receive feedback on the appropriateness of the standard denial referrals they sent to the field and therefore did not know whether they were screening effectively. Without knowing how successful their referrals are, the specialists are unable to modify their procedures. The only feedback mechanism the specialists currently have is to access NFORCE to look up what actions the field offices took in relation to specific referrals.
We found that some of the division office NICS coordinators were closing a substantial amount of the standard denial referrals as they received them from the Brady Operations Branch. At one of the division offices we visited, the NICS coordinator closed 42 of the 50 (84 percent) standard denial cases in our sample; at another division office, the NICS coordinator closed 18 of the 50 (36 percent) standard denial referrals in our sample. In addition, four other NICS coordinators we contacted by phone estimated that they close from 40 percent to 95 percent of the standard denial referrals they receive.
In our opinion, if the NICS coordinators are closing a large percentage of the standard denial referrals they receive, then these are inappropriate referrals from the Brady Operations Branch. To reduce the number of standard denial referrals being received, the NICS coordinators need to analyze their rationale for not referring the cases for investigation and provide feedback to the Brady Operations Branch. If the Brady Operations Branch specialists were aware of the types of cases actually being investigated by the field, they could close those types of cases instead of referring them to the division office.
The special agents in the field offices need to communicate similar information back to their NICS coordinators. Several of the group supervisors we spoke with stated that they closed out the majority of the referrals they received from their NICS coordinators. However, the group supervisors and RACs should ask the NICS coordinators to cease sending particular types of referrals to the field offices. It is not constructive, as is the current practice, for special agents to question the rationale for particular cases being sent to them by the NICS coordinator. Instead, they need to provide the NICS coordinator with specific guidance for screening cases.
Recommendation 5: The EOUSA should ensure that annually each USAO provide the ATF with specific prosecutorial guidelines for NICS cases.
Recommendation 6: The ATF should examine the feasibility of enabling Brady Operations Branch specialists to identify NICS cases by federal judicial district, thereby enabling the ATF to consolidate all its NICS referral screening at the Brady Operations Branch. In the interim, the ATF should require all division office NICS coordinators to screen NICS standard denial referrals and refer to the field offices only those cases that meet USAO prosecutorial guidelines.
Recommendation 7: The ATF should provide annual training to the NICS coordinators and develop a NICS coordinator handbook.
Recommendation 8: The ATF Brady Operations Branch should refer to the field offices only those alien cases that meet the USAO prosecutorial guidelines.
Recommendation 9: The ATF should require division office NICS coordinators and field office personnel to notify the Brady Operations Branch of those referrals that do not meet USAO guidelines.
Some Denied Persons Are Subsequently Determined by the ATF Not to Be Prohibited
We found that 69 of the 197 (35 percent) delayed denials and 16 of the 200 (8 percent) standard denials in our sample were applicants who should not have been prohibited from purchasing a firearm.34 Special agents in each of the four divisions we visited stated that this was a common occurrence. Although the investigative files did not specify why the subjects in our sample were found not to be prohibited, our discussions with ATF personnel identified several reasons why this generally occurs: (1) the subject's firearm rights had been restored under state law, (2) the subject's prohibition for a misdemeanor crime of violence did not meet the federal criteria, or (3) a protective order had expired or was about to expire. These circumstances are discussed in detail in the following sections.
Firearm Rights Have Been Restored
Currently, when a federal crime is the prohibiting factor, the person's firearm rights can only be restored through a presidential pardon.35 In relation to persons prohibited from possessing firearms due to a criminal conviction, the GCA states: "Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms."36
All but two states have provisions for restoring firearm rights.37 Firearm rights are restored automatically or through application. The conditions for restoration vary greatly among the states by age (juveniles versus adults), type of crime, and the time frame between release from prison or parole and restoration of rights. In some states, restoration rights specifically apply only to convicted felons, which may result in a paradoxical situation in which someone convicted of a misdemeanor crime of domestic violence is permanently barred from owning a firearm, while someone who kills his spouse has his firearm rights restored after serving his sentence.
Twenty-one states automatically restore firearm rights upon release from prison or completion of parole.38 Forty-five states have provisions for restoring firearm rights through application.39 A person, after a specified waiting period in which no additional crimes have been committed, can submit an application to the appropriate authority for restoration. Again, the conditions vary widely among the states.
Because these provisions affect the person's right to possess a firearm, it is important for FBI NICS examiners, Brady Operations Branch specialists, NICS coordinators, and ATF special agents to be familiar with them. Automatic restorations should readily be identified by FBI NICS examiners and Brady Operations specialists. Although we were unable to verify employee expertise in applicable state law, FBI NICS and Brady Operations Branch management assured us that their employees, who are assigned cases for particular states, have expertise in the applicable state laws. Because it is difficult for FBI NICS management to ensure that the automatic restoration provisions are taken into account when determining whether to deny a firearm to a person, the ATF should report exceptions back to the FBI. Currently there is no mechanism to do so.
Restoration of rights through application is much more difficult for the FBI NICS examiner to ascertain. According to FBI NICS management, states are responsible for entering the names of persons whose rights have been restored into one of the criminal databases (III or NCIC). If this is properly done, the NICS check should identify not only the prohibiting factor, but also the restoration. However, considering the inaccessibility and incompleteness of some state criminal history records, it is unlikely that restoration information will be identified during the NICS check.40
Domestic Violence Criteria Were Not Met
Of the 85 cases in our sample closed by the ATF division, field, or satellite office because the person was determined not to be prohibited from possessing firearms, 27 (32 percent) had been denied under the prohibition for conviction of misdemeanor crimes of domestic violence.
For a misdemeanor crime of domestic violence to qualify as a federal prohibitor for firearms possession, certain criteria must be met, some of which are not readily apparent from the records included in the criminal databases. Before initiating an investigation or retrieving a firearm, the ATF special agent often needs to review court documents to determine whether all the prohibiting criteria are met. These criteria are:
To qualify under this prohibition, the person does not have to have been convicted specifically for a misdemeanor crime of domestic violence. According to Title 9, Section 1117 of the United States Attorneys' Criminal Resource Manual, this prohibition includes all misdemeanors that involve the use or attempted use of physical force (e.g., simple assault, assault and battery), if the offense is committed by one of the defined parties.
In some states, few crimes of domestic violence qualify as prohibiting factors. For example, most domestic violence cases in Louisiana do not meet the criteria because any misdemeanor for which the punishment is a fine of $1,000 or less or imprisonment for six months or less is tried without a jury.42 Most domestic violence crimes are charged as either simple battery or aggravated assault, which fall below the level requiring a jury trial. The defendant also does not have the right to counsel. Therefore, under these criteria, a person with a domestic violence conviction in Louisiana is not prohibited from possessing a firearm.
In some cases, a person's prohibited status cannot be determined without a review of court records. In these cases, it is difficult for the FBI NICS examiner to obtain the information within the 3-day period. However, wherever possible the ATF should try to identify trends in inappropriate referrals and communicate these to FBI NICS in order to reduce the number of inappropriate denials. For example, if the ATF identifies that persons in a particular state are never prohibited because the legal process in that state does not meet the prohibitive criteria, the ATF needs to communicate this to the FBI NICS Section.
Protective Orders Have Expired
Being under an active protective order is one of the prohibiting factors for possessing a firearm. If a protective order has expired when the ATF begins its investigation, the ATF will not initiate a firearms retrieval or investigation because the person is no longer prohibited from possessing a firearm. This occurred in 7 of the 85 cases (8 percent) in our sample closed by the division, field, or satellite office. These cases could be screened more efficiently by the division office NICS coordinator or a contract or administrative employee instead of being assigned to a special agent.
Recommendation 10: The ATF should require division office NICS coordinators and field office personnel to notify the Brady Operations Branch and the FBI NICS Section of trends in inappropriate referrals of non-prohibited persons. Also, require that the field office personnel, via the division office NICS coordinators, provide to the FBI NICS Section the names of those individuals that the ATF determines not to be prohibited and documentation to support the reason for the person's non-prohibited status.
Improvements Are Needed in Brady Operations Branch
The Brady Operations Branch has made significant progress in processing NICS referrals since its establishment in January 2000.43 In October 2000, the FBI began forwarding denials to the Brady Operations Branch on a daily basis (prior to this, the denials were forwarded every two weeks). In August 2002, the ATF NICS Referral (ANR), the system used by the ATF to receive referrals from the FBI, was integrated with the ATF's NFORCE system. This enabled ATF division office personnel to access a NICS denial file once the Brady Operations Branch specialist processed the denial. Prior to this, the Brady Operations Branch had to mail or fax the referral information to the division offices. These changes have made the referral process more timely and efficient.
However, funding constraints have hindered its continued progress. Part of the problem results from the Brady Operations Branch not having a separate budget and therefore having little control over its yearly funding. In the following sections, we discuss the impact these funding constraints have had on processing NICS referrals. We also discuss a technological modification needed to improve the referral process.
Additional Staffing Is Needed to Ensure Timely Processing
During our review, we noted excessive backlogs occurring at the Brady Operations Branch during the peak processing season (October through December). Brady Operations Branch specialists told us that it generally takes them four months to process the large volume of referrals received during this period. Although denials requiring firearms retrievals are processed and referred to the appropriate division offices on the same day as they are received, the standard denials are queued and processed by each specialist in the order received. As a result, the standard denials received by the Brady Operations Branch during the peak season may not be transferred to the field for investigation for three to four months. And because cases are processed in the order received, there is no priority processing of cases that merit prosecution, such as those in which the subject is considered a danger to the community.
At the time of our January 2004 site visit, the Brady Operations Branch was experiencing extensive workload backlogs as shown in Figure 5.
|Figure 5: Brady Operations Branch Backlogs|
CY 2002 and 2003
[Not available electronically]
According to Brady Operations Branch management, the extensive current backlogs are due to an overall increase in workload (an additional 5,300 referrals from the prior year), the transfer of a high-producing specialist, and insufficient staff. Management stated that during this past peak season, FBI NICS was sending 300 to 400 referrals a day for processing to the seven Brady Operations Branch specialists. As of June 2004, substantial backlogs still existed. According to a Brady Operations Branch official, as of June 10, 2004, 2,819 standard denial referrals were still awaiting processing.
The specialists we interviewed concurred with management's assessment of the reasons for the backlogs. During interviews with each of the specialists, they stated that during this past peak season they were each receiving up to 90 referrals a day. In December 2003 and January 2004, their individual backlogs ranged from 700 to 2,000 cases. The specialists told us that generally they start falling behind on their workload in November and are not able to catch up until April or May. All of the specialists we spoke with agreed that additional permanent staff is needed to prevent backlogs, with the general consensus that at least two specialists are required.
Brady Operations Branch management agreed with the specialists' assessment that at least two additional specialists were needed. They noted that the number of specialists has decreased from nine when the Brady Operations Branch was first established to seven. Further, there is a possibility of workload increases if any additional POC states decide to turn their operations over to FBI NICS because of dwindling state resources.44
When contacted in April 2004, the Brady Operations Branch Chief stated that they had put in a request for two contract employees to supplement the specialist staff. He also mentioned that an additional permanent specialist position had been approved. As of June 2004, the contractor positions had not yet been funded.
Computer System Limits Efficiency
Brady Operations Branch officials told us that funding during the past three years has not increased sufficiently to support technological modifications to improve efficiency. Primary among the needs is modifying the ANR computer system to include digital imaging, which would allow Brady Operations Branch specialists to scan documents, such as ATF Form 4473 and court records, into the system and send them electronically to ATF division offices. Currently, these documents are faxed or mailed by the Brady Operations Branch to the ATF division office NICS coordinators, who must in turn fax or mail these documents to the field offices. Other modifications would enable Brady Operations Branch management to monitor processing timeliness, require specialists to document the qualifying criteria, enlarge the space for specialists to type their comments, and allow the specialists to automatically identify instances in which the prohibited person either made or attempted to make multiple firearms purchases.
Brady Operations Branch officials told us that in 2003 they had submitted a request to ATF headquarters for $760,000 for 25 modifications to ANR. In April 2004, the Brady Operations Branch Chief told us that the funding request had been denied. When questioned about the funding request, an ATF headquarters official cited other funding priorities as the reason for the denial.
The FBI Needs to Distinguish Delayed Denials from Standard Denials
Currently the FBI NICS Section's daily electronic transfer of denials to the Brady Operations Branch does not distinguish between delayed denials and standard denials. Because delayed denials have a higher priority - a prohibited person has received a firearm that needs to be retrieved - they need to be removed from the queue and immediately forwarded to the appropriate ATF division office for action.
The identification of the delayed denials is currently a manual process. Daily, the FBI NICS Section sends by facsimile an initial firearms retrieval notification for each denial in which the firearm has been transferred to a prohibited person. The Brady Operations Branch logs and files the facsimiles in the "pending" drawer to await the corresponding electronic submission. When the electronic transfer is received, the Brady Operations Branch specialist retrieves the faxes and pulls the denial out of the electronic queue for processing. The Brady Operations Branch also checks the fax log entries against the electronic submission to ensure that all the delayed denials appear on the electronic submission.
In our opinion, this is an unnecessarily cumbersome process for both the FBI NICS Section and the Brady Operations Branch. Delayed denials should be distinguished from standard denials on the daily electronic submission. According to Brady Operations Branch officials, the FBI NICS Section has agreed to implement this modification but has put it on the "back burner" because it is a low priority. In April 2004, we contacted the FBI NICS Section Chief about this issue. He also agreed that it appeared to be a beneficial modification. He later informed us that he had submitted a program change request for the modification, but that he was advised that, due to the existing backlog of requested computer enhancements, this would not be implemented until at least the end of CY 2005.
Recommendation 11: The ATF should ensure that the Brady Operations Branch is sufficiently staffed to minimize backlogs and sufficiently funded to implement necessary automated system modifications.
Recommendation 12: The FBI should distinguish delayed denials from standard denials on its daily electronic transfers of denial transactions to the ATF.
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." The memorandum further stated, "Persons who violate federal gun laws will find a determined adversary in this Administration, this Department, and in each United States Attorney. As the nation's prosecutors, you must send a clear message: gun crime means hard time."
We found that very few NICS cases are prosecuted. During CYs 2002 and 2003, the USAOs prosecuted only 154 (less than 1 percent) of the 120,000 persons who were found to be a prohibited person during the NICS background check. Of the 400 NICS cases in our sample, only 8 cases had been referred by the ATF to a USAO for prosecution (another 2 involved subjects who were already under arrest for other crimes and were being prosecuted by the state).45
During this period, the ATF formally referred a total of only 230 cases to the USAOs (185, or 80 percent were accepted for prosecution). These numbers reflect only formal referrals and not the number of informal referrals made by the ATF. Most of the ATF special agents at the 13 field offices we contacted stated that before preparing a formal referral, their office's practice was to first contact the USAO and determine whether the USAO was interested in accepting the case. These informal referrals were not quantified in NFORCE, but generally were documented in a management case log, which is part of the investigative case file.46 Because the ATF does not formally track informal referrals, we were unable to determine the actual number of cases that the ATF field offices referred to the USAOs.
Although the number of prosecutions is low, we concluded that this has more to do with the nature of the cases than with the unwillingness of the USAOs to prosecute. In fact, the ATF special agents we spoke with (located in 13 different states) and SACs and ASACs (located in four divisions) consistently complimented their USAO's willingness to prosecute NICS cases. They consistently commented that it was difficult to find a "good" NICS case to refer to the USAO because these cases generally lacked jury appeal.
They said lack of jury appeal was the result of several factors:
Based on our review of 400 NICS investigative files, in all but one case we agreed with the ATF's assessment that the cases failed to meet USAO prosecutorial guidelines.49 The eight cases in our sample that had been referred for prosecution represented more egregious cases. These included: