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
July 2004

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:

• The Brady Operations Branch did not have the technological capability to transfer the delayed denials directly to the field and satellite offices, and instead routed the denials through the division NICS coordinators. Not all NICS coordinators were timely in forwarding these denials to the field offices.

• Insufficient staffing at some ATF field and satellite offices made it difficult for special agents to investigate the large volume of labor-intensive NICS cases in addition to conducting other high-priority investigations, such as those involving firearms trafficking, explosives, and arsons. In addition, the large geographic territories some of the field offices cover make retrieving a firearm a time-consuming process.

• ATF special agents did not consider most of the prohibited persons who had obtained guns to be dangerous and therefore did not consider it a priority to retrieve the firearm promptly.

• The ATF had not established timeliness standards for retrieving firearms and did not track the retrieval process.

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:

• The USAOs had not provided sufficient prosecutorial guidelines. We found that of the 25 USAOs included in our review, 8 had not provided written prosecutorial guidelines to the ATF. Of the 17 guidelines, 1 was not sufficiently specific to identify cases likely to result in successful prosecutions.

• Not all ATF division offices screened NICS cases before forwarding them to a field office. We found that the NICS coordinators at 6 (35 percent) of the 17 division offices that receive referrals from the Brady Operations Branch were not screening referrals for prosecutorial merit.² At these locations, the field offices had the burden of screening the cases.

• The NICS coordinators lacked training and written guidance. The ATF had not held a NICS coordinator training conference since 2000. That conference was attended by only 6 of the 17 current coordinators who regularly receive NICS referrals. Further, the ATF had not provided the NICS coordinators with standardized written guidance on procedures for screening referrals.

• The Brady Operations Branch was unnecessarily forwarding alien cases to the division offices. The GCA generally prohibits illegal and nonimmigrant aliens from possessing firearms. The Brady Operations Branch routinely refers NICS cases involving denials for aliens to the Department of Homeland Security's Bureau of Immigration and Customs Enforcement (ICE). However, we found that the Brady Operations Branch also forwarded alien cases to the ATF division offices. The division and field offices often closed these cases without investigation because they did not involve other prohibiting factors. Our sample of 200 standard referrals included 22 alien cases, none of which contained any other prohibiting factors such as criminal records.

• ATF field personnel did not provide feedback to the Brady Operations Branch or the NICS coordinators on referrals that did not meet USAO prosecutorial guidelines. We found that the division office NICS coordinators did not forward to the field offices 36 to 95 percent of the standard denial referrals they received from the Brady Operations Branch. In addition, several of the field office group supervisors told us that they did not investigate the majority of the referrals they received from their NICS coordinators. In both these of situations, the field office group supervisors failed to communicate to the NICS coordinators and the NICS coordinators failed to communicate to the Brady Operations Branch that these types of cases lacked prosecutorial merit. In the absence of specific prosecutorial guidelines, it is particularly important for the field investigators to provide feedback to the NICS coordinators or the Brady Operations Branch on the categories of referrals not being investigated. The information could have been used to reduce the number of cases without prosecutorial merit that they refer to the field offices.

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.

RECOMMENDATIONS

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:

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.

2. The ATF should use non-agent personnel to handle the administrative tasks related to NICS cases.

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.

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.

5. The EOUSA should ensure that annually each USAO provide the ATF with specific prosecutorial guidelines for NICS cases.

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.

7. The ATF should provide annual training to the NICS coordinators and develop a NICS coordinator handbook.

8. The ATF Brady Operations Branch should refer to the field offices only those alien cases that meet the USAO prosecutorial guidelines.

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.

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.

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.

12. The FBI should distinguish delayed denials from standard denials on its daily electronic transfers of denial transactions to the ATF.

1. These nine categories are: (1) those under indictment for or convicted of a crime punishable by imprisonment for a term exceeding one year; (2) fugitives from justice; (3) unlawful users and/or addicts of any controlled substances; (4) those adjudicated as mentally defective or who have been involuntarily committed to a mental institution or otherwise judged incompetent to handle their own affairs; (5) illegal aliens or aliens admitted to the United States under a nonimmigrant visa; (6) those dishonorably discharged from the U.S. Armed Forces; (7) those who have renounced their U.S. citizenship; (8) subjects of a protective order; and (9) those convicted of a misdemeanor crime of domestic violence.

2. Six divisions are in POC states and do not receive referrals from the Brady Operations Branch.

3. Field investigators informally refer cases to the U.S. Attorney in order to determine interest in prosecution. The number of information referrals is not tracked in NFORCE, ATF's cases management system.