Explore The NRA Universe Of Websites

APPEARS IN News

DOJ IG Report Undermines Case for New Laws, Gun Control Narrative

Friday, October 7, 2016

DOJ IG Report Undermines Case for New Laws, Gun Control Narrative

On September 28, the Office of the Inspector General for the U.S. Department of Justice released a report titled, “Audit of the Handling of Firearms Purchase Denials Through the National Instant Criminal Background Check System.” The report details the operations of the FBI’s NICS system with a focus on how the DOJ handles instances where a firearms transfer has been delayed or denied.

The document reveals that in recent years there has been a sizeable decrease in the number of individuals that the federal government has prosecuted following a NICS denial. Notably, this decreased level of the use of current federal law to pursue those denied by NICS has occurred at a time when the Obama administration and other gun control supporters have sought to burden gun owners with new laws restricting the transfer of firearms.

Following a NICS denial, FBI sends the denied individual’s information to ATF’s Denial Enforcement and NICS Intelligence Branch (DENI) for further review. DENI then forwards a small subset of these cases to ATF field divisions, who in turn assign them to ATF field offices. Following a further investigation, ATF then refers a subset of these cases to their corresponding United States Attorney’s Office for potential prosecution. The USAO reviews the cases and decides whether to prosecute the denied individual.

The number of those prosecuted following a NICS denial has fallen dramatically since 2003. The IG report pointed out that in FY2003, USAO’s considered 166 individuals for prosecutions stemming from a NICS denial. Between 2008 and 2015 this number dropped to an average of 32 per year. In FY2015, 20 cases resulting from NICS denials were prosecuted. To put this number in context, in 2015 there were 106,556 federal NICS denials.

The report illustrates this shift with the following figure:


While the decline began during the latter portion of the Bush administration, the continuation of a depressed number NICS prosecutions appears to be official Obama administration policy. The report noted, “We determined that, in general, USAOs prosecuted NICS cases only when aggravated circumstances existed.”

The lack of prosecutions appears to have been further cemented into DOJ policy following the implementation of Attorney General Eric Holder’s “Smart on Crime” initiative, which was rolled out in 2013. The initiative called on DOJ officials to “ensure finite resources are devoted to the most important law enforcement priorities.” In relation to NICS prosecutions, the IG report discovered:

The [Executive Office for United States Attorneys] official told us and the Department confirmed in response to a draft of this report that their decisions on these cases reflected the application of the principle of the Department’s Smart on Crime Initiative as well as past prosecutive priorities that direct USAOs to prioritize prosecutions to focus on the most serious cases that implicate the most substantial federal interests.

Further, according to the IG report, this practice has continued under the direction of Attorney General Loretta Lynch. According to a White House fact sheet obtained by the IG Office, during a January 2016 conference call, Lynch told all U.S. Attorneys to “Continue to focus their resources – as they have for the past several years under the Department’s Smart on Crime initiative – on the most impactful cases…”

It is clear DOJ has not vigorously utilized existing federal law to prosecute those denied by NICS. Despite this scant utilization of current federal background check law, anti-gun politicians, including those in the Obama administration itself, continue to advocate for legislation that would subject more types of firearms transfers to a background check requirement. This focus on new restrictions rather than the more robust application of existing law reveals the anti-gun politician’s true motive isn’t to diminish unlawful firearm possession or reduce crime, but to further burden and discourage lawful gun ownership.

The DOJ’s choice to, and stated justifications for, not pursuing individuals who fail NICS checks also undermines key portions of the gun control movement’s narrative. In arguing for the criminalization of the private transfer of firearms, gun control organizations claim that every single person denied by NICS is dangerous. The Brady Campaign contends, “Brady background checks on gun purchases have blocked 2.4 million sales to dangerous people since the inception of the Brady Handgun Violence Prevention Act.” Michael Bloomberg’s Everytown for Gun Safety argues, “Since the background check system was started, it has blocked more than two million sales to dangerous people.”

This notion has never been accurate.  The statutory categories of persons prohibited from firearm possession have been used to encompass individuals who have never displayed a predilection towards violence; for example, those convicted of nonviolent felonies and those assigned a fiduciary to manage their benefits from the Department of Veterans Affairs. However, DOJ’s decision to prosecute a mere fraction of NICS denials further undermines this anti-gun narrative, as it suggests that the DOJ considers the vast majority of those denied by NICS to pose little threat to the public. Whether DOJ’s current passive posture towards those denied by NICS is appropriate is a point of legitimate debate, however, DOJ’s stance is certainly at odds with some of the gun control establishment’s favorite talking points.

In addition to the important information on NICS prosecutions, the IG report also shed light on data that shows the severe danger that recent efforts to close the so-called “Charleston loophole” pose to many non-prohibited individuals’ ability to exercise their Second Amendment rights.

Despite what gun control supporters contend, for many people the National Instant Criminal Background Check System isn’t “instant” at all. In 2015, nearly 10 percent of federal NICS transactions were delayed for further review. A delay can occur if a NICS check uncovers a criminal justice record, but system that lacks information on the final disposition of the case. Alternatively, as FBI has noted in their NICS fact sheet, a prospective firearms transferee might be delayed for simply sharing a “similar name and/or similar descriptive features” with an individual with a potentially prohibiting record.

In these instances, the transaction is referred to a NICS examiner for further review. In carrying out their duties, examiners are often required to contact various federal or state agencies to uncover further information regarding the prospective gun buyer. If after three days the examiner does not uncover prohibiting information on the gun buyer, the firearms transfer may go forward at the discretion of the transferor. However, in these cases, examiners may continue to search for prohibiting information on the gun buyer for up to 90 days following the initial background check.

The IG report found the following:

From FY 2003 through May 2013, about 1.3 million (2 percent) of almost 64 million background checks remained in an open or pending status for over 88 days at which time they were purged from NICS.

Marketed by gun control supporters as “no check, no sale,” pending legislation seeks to do away with the three-day safety valve that permits a transfer to go forward if the government does not produce information that the prospective gun buyer is prohibited.

Regardless of the number of those affected, this type of legislation is unacceptable, as it removes the burden that the government has to marshal evidence to prove that an individual is prohibited from possessing firearms before they can deprive that individual of their Second Amendment rights.

However, the IG report is important in that it highlighted the incredible scope of transactions that would be implicated by such impermissible legislation. The figures presented in the IG report make clear that this legislation has the potential to indefinitely delay millions of firearms transfers, all in instances where the government has failed to meet its burden to produce evidence that the person is in fact prohibited from possessing firearms. Worse, if enacted in concert with legislation that would criminalize the private transfer of firearms, non-prohibited individuals who are subject to such delays would have no lawful means of acquiring firearms. As NRA has previously noted, legislation to eliminate the three-day safety valve amounts to a backdoor gun prohibition.

The lackluster enforcement of current background check laws illustrated in the IG report should cause honest politicians and the public to question the efficacy of foisting further firearm transfer restrictions on America’s gun owners. Those concerned with crime perpetrated with firearms should recognize that the federal government already has the necessary tools to combat the criminal misuse of firearms, and that it is largely up to the executive branch to make effective use of them.

TRENDING NOW
Biden Reiterates Call to Ban 9mm Handguns

News  

Monday, July 26, 2021

Biden Reiterates Call to Ban 9mm Handguns

During a July 21 CNN “presidential town hall,” Joe Biden expressed his support for a ban on commonly-owned handguns. Responding to a question about the recent increase in violent crime, the career politician stated,

Great Expectations, Empty Promises: Gun Control in Washington State

News  

Monday, July 26, 2021

Great Expectations, Empty Promises: Gun Control in Washington State

For years, voters in the Evergreen State have been assured that if only they approve certain gun control ballot initiatives, they would “save lives” and reduce crime. The Washington Alliance for Gun Responsibility (WAGR), the organization pushing ...

Guide To The Interstate Transportation Of Firearms

Gun Laws  

Thursday, January 1, 2015

Guide To The Interstate Transportation Of Firearms

CAUTION: Federal and state firearms laws are subject to frequent change. This summary is not to be considered as legal advice or a restatement of law.

How Anti-Gun Research Works

News  

Monday, July 26, 2021

How Anti-Gun Research Works

The objective world mistrusts most gun policy research because it’s clear the objective is to produce an anti-gun outcome rather than honest analysis. Politicians and professional activists claim the mantle of evidence but will ignore ...

St. Louis Prosecutor Kim Gardner Ignores Violent Crime While Playing Politics with Gun Owners

News  

Monday, July 26, 2021

St. Louis Prosecutor Kim Gardner Ignores Violent Crime While Playing Politics with Gun Owners

Similar to many other urban areas of the country, St. Louis saw a dramatic increase in homicide in 2020. The Gateway to the West’s homicide rate per 100 thousand residents exploded from 64.5 in 2019 to 87.2 in 2020. The homicide ...

Louisiana: Betrayal at the Capitol

Wednesday, July 21, 2021

Louisiana: Betrayal at the Capitol

Yesterday, SB 118, Constitutional Carry, was defeated due to several Senators reversing their initial vote of support on the bill.  Two of the Senators who flip-flopped were Senators Patrick Connick (SD-8) and Louie Bernard (SD-31). 

Students “School” Antigun Education Officials on Civil Rights, Receive Large Settlements in Court Cases

News  

Monday, July 19, 2021

Students “School” Antigun Education Officials on Civil Rights, Receive Large Settlements in Court Cases

Last September we reported on the saga of Ka'Mauri Harrison, a Louisiana elementary school student who was suspended for having a BB gun that happened to come into view while the fourth grader was participating in online ...

Guide To The Interstate Transportation Of Firearms

Gun Laws  

Monday, June 30, 2014

Guide To The Interstate Transportation Of Firearms

CAUTION: Federal and state firearms laws are subject to frequent change. This summary is not to be considered as legal advice or a restatement of law.

ATF Targets Pistol Stabilizing Braces in New Rulemaking

News  

Wednesday, June 9, 2021

ATF Targets Pistol Stabilizing Braces in New Rulemaking

On June 7th, ATF published a new notice of proposed rulemaking on its website...

NRA-ILA Applauds Rep. Claudia Tenney and U.S. House of Representatives’ Amicus Brief Supporting Second Amendment Case Before Supreme Court

Tuesday, July 20, 2021

NRA-ILA Applauds Rep. Claudia Tenney and U.S. House of Representatives’ Amicus Brief Supporting Second Amendment Case Before Supreme Court

Earlier this year, the Supreme Court decided to hear the NRA-ILA backed case challenging New York’s restrictive concealed-carry-licensing regime. NRA-ILA’s opening brief is located here.

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.