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 ATF is responsible for ensuring that firearms remain out of the hands of prohibited persons and for investigating criminal attempts to evade the Brady Act's requirements. The FBI refers to the ATF the names of all prohibited persons who either attempted to or succeeded in obtaining a firearm from an FFL. The ATF's responsibilities are then twofold: to promptly retrieve those firearms that were transferred to persons subsequently found to be prohibited and to investigate those referrals that have prosecutorial merit.

Due to the risk to the public, it is imperative that the ATF quickly retrieve firearms possessed by prohibited persons. We found, however, that although the ATF is almost always able to retrieve these firearms, the retrievals are not always timely. We identified excessive delays in retrieving the 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. At the four locations we visited, ATF field staff attributed these delays to the failure of one of the NICS coordinators to refer these cases to the field offices in a timely manner and to the lack of sufficient field special agents to deal with large volumes of labor-intensive NICS referrals, wide geographic territories, and other competing investigative priorities. In addition, although the ATF considers firearms retrievals to be a priority, it has not established performance standards for timeliness, and therefore ATF management is unable to determine whether the retrievals are being performed on a timely basis. We also found that the ATF special agents were not documenting sufficiently firearms recoveries involving transfers of the firearm to a third party, returns of the firearm to the FFL, or seizures of the firearm by local law enforcement. Further, they were not documenting that background checks were conducted to ensure that the third party was not prohibited from possessing a firearm.

In addition, although the ATF has made progress since the program was initiated in 1998 to limit the number of referrals sent to the field offices for investigation, the field offices still are receiving too many standard denial referrals that do not have prosecutorial merit. USAO prosecutorial guidelines are a critical tool used by the ATF to determine which NICS cases to investigate. However, we found that not all of the USAOs have provided sufficient prosecutorial guidelines to the ATF. We also found that the ability of the ATF to sufficiently screen the NICS referrals, and therefore prioritize the NICS case workload, was hampered by the failure of some division office NICS coordinators to screen the referrals before forwarding the cases to a field office; the lack of training and written guidance for the NICS coordinators; the Brady Operations Branch's unnecessary forwarding of noncriminal alien cases to the division offices; and the overall lack of communication among the Brady Operations Branch specialists, the division office NICS coordinators, and field office special agents regarding the types of cases meriting investigation.

Funding constraints had hurt the effectiveness of the Brady Operations Branch's operations with staffing shortages resulting in large workload backlogs. Further, the Brady Operations Branch has been unable to implement systems modifications that would make the referral process more efficient. Specifically, the Brady Operations Branch does not have the technological capability to both distinguish NICS denials by federal judicial districts (and therefore specific USAO prosecutorial guidelines) and route the denials directly to the field offices. As a result, the NICS denials must be routed to the field offices through the division office NICS coordinators, who generally also perform further screening of the standard referrals using more specific USAO prosecutorial guidelines.

We also found that less than 1 percent of the individuals who committed Brady Act violations were prosecuted. However, most NICS cases do not meet prosecutorial guidelines due to the age of the prohibiting convictions, the nonviolent or noncriminal nature of many of the prohibiting factors, the difficulty in proving intent to deceive, the type of firearm involved, and other factors.

We made 12 recommendations to improve the operation of the ATF's investigations, retrieval, and prosecution of Brady Act violations. We believe that the ATF's and the Department's implementation of these changes will significantly improve the enforcement of Brady Act violations identified through the NICS.