Denied and Dangerous: Alerting Law Enforcement When Dangerous People Break the Law and Attempt to Buy Guns

April 8, 2016

Every day across the United States, dozens of wanted fugitives, convicted felons, and people under domestic violence restraining orders walk into local gun stores and try to buy firearms. Like anyone purchasing a gun from a licensed firearm dealer, they are subject to a background check before the sale goes forward. And because they are barred by federal law from buying or possessing guns — along with several other narrow categories of dangerous people—they fail those background checks and the dealers stop the sales.

But in almost all cases, these denied and dangerous people walk away scot-free. Local police are not informed that a prohibited person has tried to buy a gun, which is itself a violation of federal law as well as a risk to the community. And these would-be gun buyers are free to seek to arm themselves through other means.

One such man, John Shick, had a long history of paranoid schizophrenia and had been committed to a psychiatric hospital by a judge, which barred him from buying or having guns. In early 2011, he disregarded the law and tried to buy a gun in Portland, Oregon, where the required background check flagged his mental health commitment and blocked the sale. But Shick walked away without law enforcement intervention, and four months later responded to a newspaper ad by an unlicensed seller in New Mexico that offered a pair of handguns for sale, no background check required.

On March 8, 2012, he carried those guns into the Western Psychiatric Institute and Clinic in Pittsburgh, Pennsylvania, where he shot six people, killing one of them, before responding police fatally shot him.Moriah Balingit, “John Shick Case Reflects Gun Issues in US,” Pittsburgh Post-Gazette (Pittsburgh, PA), January 13, 2013, accessed January 13, 2016, http:// bit.ly/1INUQee.

Schick’s story is emblematic of how law enforcement officers currently respond to criminals who try to buy guns and fail background checks: hardly at all. This failure to bring criminals to justice happens day in and day out across the country. And it is especially troubling given that denied gun buyers present a heightened risk of dangerousness, and loopholes in federal law leave an open door for criminals and the severely mentally ill to buy guns from unlicensed sellers. The statistics are alarming:

  • In 2014, the FBI and state law enforcement agencies denied more than 125,000 gun sales to prohibited people, the majority of them to convicted felons.Everytown for Gun Safety analysis of NICS denials data obtained directly from the FBI.
  • Three in 10 people who “lie-and-try” to buy guns and are denied for criminal convictions or indictment are re-arrested within the next five years.James Tien et al., Structured Decisions Corporation, Recidivism of Denied Prospective Firearm Purchases, May 2008, at http://1.usa.gov/1Dm1lSG.
  • In 32 states, those same people that fail a background check can seek a handgun in an unlicensed sale without one, no questions asked.

Lawmakers and law enforcement officials should seize the opportunity to better enforce existing gun laws by actively responding when a dangerous person tries and fails to buy a gun. In the 21 states that conduct their own background checks —  known as Point of Contact (POC) states — law enforcement knows when local gun stores deny sales to dangerous people, and those states can institute an alert system to notify local law enforcement as soon as a prohibited purchaser fails a background check. State police in POC states can also take direct action by arresting offenders and turning them over to prosecutors. And state officials in non-POC states can request that the Department of Justice notify them when a prohibited person fails a background check, giving local law enforcement the intelligence necessary to take action.

The Background Check System

Under federal law, certain narrow classes of people — including felons, domestic abusers, and the seriously mentally ill — are barred from buying or having firearms. This law is enforced at the point of sale in most states by the National Instant Criminal Background Check System (NICS), which is operated by the FBI. Gun dealers are required to run every prospective buyer through the background check system and deny gun sales to people who fall into any of the prohibited categories and fail a background check. In 18 states and the District of Columbia, buyers and sellers are required to conduct transactions on all handgun sales at a licensed dealer, who conducts a background check.

Before a person buys a gun from a licensed gun dealer, he or she fills out a Form 4473 issued by the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF). On the form, the buyer attests that he or she is not prohibited from possessing guns. The dealer then contacts a background check operator electronically or via phone, who runs the name of the buyer through the NICS databases, which include records of criminal convictions, domestic violence restraining orders, and relevant prohibiting mental health records. Depending on whether the records indicate the person is prohibited, the operator will tell the dealer to proceed with the sale, deny the sale, or delay it while further analysis is completed.

In 29 states and the District of Columbia the FBI conducts the background checks for all gun sales where a check is required. In the other 21 states—the POC states — in-state law enforcement agencies employ both NICS and state databases to conduct the background checks themselves.Eight of the POC states are so-called “partial participants,” meaning some background checks are run by the FBI and some are run by in-state officials. “NICS Point of Contact States & Territories,” FBI.gov, accessed January 13, 2016, http://1.usa.gov/1Oi9AqM. Instead of contacting the federal system directly, gun dealers in POC states contact a designated in-state agency, which electronically accesses NICS as well as other state databases and runs the background check.

It is a federal crime for a person who is prohibited from purchasing firearms to lie about his or her prohibited status on the background check form in an attempt to buy a gun.18 U.S.C. § 922(a)(6). And in each of the POC states it is illegal under state law for prohibited people to “lie and try” to buy a gun.

Background checks have proven an essential protection against dangerous people getting guns. Since its creation in 1998, NICS has resolved over 90 percent of checks instantaneouslySee: FBI NICS Section, NICS Operations Report - 2014, available at http://1.usa.gov/1mYHb0p; and Bureau of Justice Statistics, Background Checks for Firearm Transfers, 2012, available at http://1.usa.gov/1TgPRgB. The FBI NICS section calculates the Immediate Determination Rate (IDR), a rate that incorporates the share of calls immediately given a “proceed” by the call center, the share of calls NICS resolves with the FFL on the telephone, and the share of transactions immediately processed by NICS E-check. In 2014, the FBI calculated the NICS IDR at 91.00 percent. and blocked more than 2.4 million gun purchases by prohibited buyers. Breakdown by share reflects all checks conducted by the FBI NICS section from 1998 to 2014, available at https://www.fbi.gov/about-us/cjis/nics/ reports/2014-operations-report. The 2.4 million denials figure is sourced from the following report: US Department of Justice, Bureau of Justice Statistics, Background Checks for Firearm Transfers, 2012 - Statistical Tables, by Jennifer C. Karberg, Ronald J. Frandsen, and Joseph M. Durso (2014): http://1.usa. gov/1TgPRgB.

Breakdown by share reflects all checks conducted by the FBI NICS section from 1998 to 2014, available at http://1.usa.gov/1MYHb0p. The 2.4 million denials figure is sourced from the following report: US Department of Justice, Bureau of Justice Statistics, Background Checks for Firearm Transfers, 2012 - Statistical Tables, by Jennifer C. Karberg, Ronald J. Frandsen, and Joseph M. Durso (2014): http://1.usa.gov/1TgPRgB.

A Missed Opportunity

Typically, the only consequence of a denied background check is that the gun dealer stops the sale. Law enforcement rarely act on denials, and nearly all of the prohibited people who fail their background check leave the gun dealer without repercussions.

A large number of dangerous people try and fail to buy guns at dealers every year. Indeed, nationwide more than 125,000 gun sales were denied in 2015 when a prohibited person attempts to make a purchase.

But federal prosecutions for “lying-and-trying” crimes are rare: in 2010 the FBI referred only 6.6 percent of denied gun sales to ATF field offices for investigation.Ronald J. Frandsen, Enforcement of the Brady Act, 2010: Federal and State Investigations and Prosecutions of Firearm Applicants Denied by a NICS Check in 2010, available at http://1.usa.gov/1Jz7q7d. Data on NICS denials is transmitted daily by the FBI to the ATF’s Denial Enforcement and NICS Intelligence (DENI) branch. In 2010, the DENI Branch received 76,142 NICS denials from the FBI for non-POC states and referred 4,732 denials to field divisions for further investigation. Only 62 of those cases were ultimately recommended for prosecution by the severely underfunded ATF.These figures may overstate the extent of denial investigations: Roughly half of all referrals to the field (2,265 in 2010) follow “delayed denials,” wherein operators deny the background check only after the sale has gone through and the prohibited person has become armed. Ronald J. Frandsen, Enforcement of the Brady Act, 2010: Federal and State Investigations and Prosecutions of Firearm Applicants Denied by a NICS Check in 2010, at http://1. usa.gov/1IUDzGi; and FBI NICS Section, NICS Operations Report - 2014, available at http://1.usa.gov/1mYHb0p. For more information, see the attached appendix.

Instead of facing prosecution, many of the denied gun purchasers try to buy guns again: of people who failed background checks in 1999 due to a criminal indictment or conviction, 7.8 percent tried to buy a gun from a dealer at least once more that calendar year. (Two individuals tried and failed as many as nine times.)James Tien et al., Structured Decisions Corporation, Recidivism of Denied Prospective Firearm Purchases, May 2008, at http://1.usa.gov/1Dm1lSG.

And an unknowable share of denied would-be buyers go on to buy guns from unlicensed sellers, who can legally complete gun sales without background checks and with no questions asked in 32 states.In 18 states and Washington DC, background checks are also required for handgun sales by unlicensed sellers. In many of those states, background checks are required for all sales by unlicensed sellers. This helps explain why the share of criminals seeking guns from licensed dealers has fallen over time — and the share of people trying to buy guns in unlicensed online sales who are prohibited from having them is 5 to 10 times higher than the share turned away by licensed dealers.See: Everytown for Gun Safety, No Questions Asked (April 2015), http://every.tw/1QgseCn; and Everytown for Gun Safety, Online and Off the Record (September 2014), http://every.tw/1Qgstxk. Indeed, millions of guns transfer hands each year without background checks, including an estimated 25,000 guns annually to convicted criminals through one website alone — Armslist.com.See: Mayors Against Illegal Guns, Felon Seeks Firearm (September 2013), http://every.tw/1SLW6bG.

A Heightened Risk

Convicted felons account for the majority of denied gun sales, failing checks on average approximately 45,000 times per year. After convicted felons, domestic violence offenders and fugitives from justice try and fail to pass background checks most frequently, an average of approximately 30,000 times per year.Everytown for Gun Safety analysis of data obtained directly from the FBI. Averages are of the years 2010-2014. Domestic violence offenders include denials for misdemeanor crimes of domestic violence and for active orders of protection. Research shows many of these individuals pose a heightened risk of lethal violence,Philip J. Cook, Jens Ludwig, and Anthony A. Braga, “Criminal Records of Homicide Offenders,” JAMA 294, no. 5 (August 3, 2005) which is why they are prohibited from purchasing or possessing firearms.

It is rare for a non-prohibited purchaser to be mistakenly denied a gun sale. More than 95 percent of denials by the FBI in non-POC states are upheld. Data on reversals in POC states is limited, but in Pennsylvania nearly 90 percent of denials are upheld.FBI NICS Section, NICS Operations Report – 2010-2014. For the years 2010=2014, the FBI conducted 39,211,095 checks for non-POC states, denying 418,477. Of those denials, 19,735 (4.7 percent) were reversed. Pennsylvania data comes from PICS Firearms Transaction Statistics, 2010-2014: Of the 4,431,686 total checks conducted by PICS for the years 2010-2014, 59,037 were denied. Of those denials, 8,210 (13.9 percent) were reversed. In Virginia in 2015, more than 97 percent of denials were upheld.Confirmed via correspondence with Captain Thomas W. Turner of the Virginia State Police. Data is for the year 2015.

Colorado law enforcement publish further details about the criminal background of people denied gun sales there. Since 1998, on average one convicted murderer has attempted to purchase a firearm from a dealer in the state each month, along with three people convicted of robbery.

Moreover, the number of sexual and domestic abusers denied in dealer sales each month is shocking — four people convicted of sexual assault and 26 people under domestic violence restraining orders.“Previous Year Statistics,” Firearm Instacheck Data, accessed January 13, 2016, http://1.usa.gov/1OPlNoq.

The risk that armed domestic abusers pose to women cannot be overstated. Fifty-one American women are shot and killed by their intimate partners each month, and a woman’s risk of being killed in a domestic confrontation increases fivefold when a gun is present.Everytown for Gun Safety analysis of FBI Supplementary Homicide Reports, 2009-2013; and JC Campbell et al, “Risk factors for femicide in abusive relationships: results from a multisite case control study,” American Journal of Public Health, July 2003. When convicted or restrained abusers illegally try to buy guns, they are signaling that they pose an elevated risk. The danger is just as serious when other types of prohibited people are denied, including fugitives under arrest warrants, who are wanted by the law and revealing their location.

Indeed, people who try and fail to buy guns pose an elevated risk even when they walk out of a gun dealer unarmed. A study commissioned by the Department of Justice (DOJ) provides unique insight into this population. Overall, 30 percent of the persons denied because of a criminal indictment or conviction were re-arrested within five years, including nearly two-thirds of the 18- to 20-year-olds.James Tien et al., Structured Decisions Corporation, Recidivism of Denied Prospective Firearm Purchases, May 2008, at http://1.usa.gov/1Dm1lSG.

In Colorado, lawmakers extended the background check requirement to all gun sales in 2013, so denied individuals can’t simply evade the law by purchasing from an unlicensed seller.Preliminary research offers evidence that the expansion of Colorado’s background check system has blocked gun sales to hundreds of additional criminals and other prohibited people, and that lawful participants in the firearm market are increasingly adopting the law. See: Everytown for Gun Safety, Memo on the Impact of Background Checks in Colorado, March 2015, http://every.tw/1L0nsnD. But in most states, dangerous and denied individuals can still buy guns with no background checks from unlicensed sellers online or at gun shows, making it crucial that law enforcement are notified when they attempt to buy guns.

Enforcing Existing Law

Every POC state has a law that criminalizes lying about one’s prohibited status on a background check form in an attempt to buy a gun.Everytown for Gun Safety survey of state laws. States are CA, CO, CT, FL, HI, IL, IA, MD, MI, NE, NH, NJ, NC, OR, TN, UT, WA, and WI. In NV, state law prohibits “other acts constituting forgery,” which prohibits a person from making a false entry in any ““public record or account” or failing to make a true entry of any material matter in any “public record or account.” See: Nev. Rev. Stat. Ann. § 205.095. These laws allow police and prosecutors in the states to respond directly to these denied sales, rather than relying on federal officials who rarely follow through on these cases.

Many states have taken additional steps to better enforce existing laws against criminals buying or possessing guns. In some cases, state officials make information on background check denials available to local law enforcement. And in others, state officials take their own initiative to enforce the law by arresting law-breakers and bringing them to justice.

Notifying local law enforcement: California, Colorado, Illinois, and Utah have laws in place requiring that the state agency that conducts the gun background checks notify local law enforcement when a prohibited person tries to buy a gun in their town or city. This requirement ensures that law enforcement can intervene before the person arms themself. In Colorado, this provision led to nearly 250 arrests in 2012 alone.Bureau of Justice Statistics, Background Checks for Firearm Transfers, 2012, available at http://1.usa.gov/1TgPRgB.

In at least seven “decentralized” POC states, local law enforcement agencies are responsible for running background checks and do not need to be independently notified of a denial. In those states, the local officials conducting the checks should be required to notify prosecutors and state law enforcement whenever a prohibited person is denied. In the case of restraining order subjects, attempts to buy a gun likely violate the terms of the order, and agencies should notify the issuing courts.

Investigation by state police: State police in Oregon, Virginia and Pennsylvania have instituted programs to pursue people who break the law by trying to buy guns at licensed dealers. The Virginia State Police investigate people who fail background checks if they are denied due to mental illness or a domestic violence restraining order, and they inform local law enforcement immediately if the denied purchaser is a fugitive. The results are impressive: since 1989, Virginia law enforcement have arrested nearly 15,000 criminals, fugitives, and other prohibited people who tried to buy guns illegally and were denied.Virginia Firearms Transaction Center Statistics, as of Aug. 2014.

Pennsylvania State Police create a state investigation file for every denied transaction and send the denial information to the state police unit closest to the buyer’s location. In some cases, they notify local police, who can investigate the case as well. In 2014, this coordinated effort initiated 4,154 investigations, which resulted in 782 arrests and 367 convictions. Since the inception of the instant background check system in 1998, they have enabled Pennsylvania police to arrest 1,818 fugitives who attempted to purchase firearms and were denied.

Simple Steps to Improve Public Safety

State legislators and law enforcement can take several steps to enforce existing laws that prohibit dangerous people from buying or possessing guns:

  • In POC states, legislators should pass state laws requiring POC agencies to alert state and/or local law enforcement when someone fails a background check.
  • State police officials who operate POC systems should follow the lead of Oregon, Pennsylvania, and Virginia by investigating prohibited people who are denied attempting to purchase a firearm, arresting those most at risk of violence, and referring them to prosecutors.
  • In non-POC states, officials should request that DOJ notify state law enforcement each time the FBI blocks a sale to a prohibited purchaser trying to buy a gun, so that in-state authorities can take action.

Federal officials and lawmakers can also better enforce the background checks laws and intercept dangerous people trying to buy guns.

  • For non-POC states, where the FBI runs the background checks, only the federal government can notify states about failed background checks. President Obama announced in January 2015 that FBI will partner with the U.S. Digital Service to notify local authorities more frequently when prohibited persons attempt to buy guns—enabling in-state officials to fill the enforcement gap by investigating failed background checks.The White House, Fact Sheet: New Executive Actions to Reduce Gun Violence and Make Our Communities Safer, http://1.usa.gov/1O7rIkP.
  • Congress should require the Department of Justice to notify state law enforcement when people break the law and try to buy firearms, giving law enforcement on the ground the intelligence necessary to stop criminals who are trying to obtain guns illegally. A bipartisan House bill introduced in the 115th Congress will require DOJ to alert state law enforcement within 24 hours that a prohibited purchaser has tried to buy a gun, with the caveat that DOJ may delay the report to protect any ongoing investigation.NICS Denials Notification Act of 2016, H.R. 4320, 114th Cong. (2016)