GAO Report: Feds Prosecute 0.01% of ‘Lie and Try’ Attempted Gun Purchases

The feds only prosecuted 12 individuals who were denied a firearms purchase in fiscal year 2017. (Photo: Wikimedia Commons/Cimmerian Praetor)

All gun owners recognize the strongly worded warning on ATF Form 4473: providing false or misleading information when purchasing a firearm “is a crime punishable as a felony under Federal law, and may also violate State and/or local law.” Even if the FBI denies the purchase, anyone caught lying about a past felony conviction or a mental health issue could face thousands of dollars in fines and years in jail.

But a new report from the Government Accountability Office suggests that these “lie and try” buyers almost never come under federal prosecution.

Of the 112,090 firearm purchases the federal government denied in fiscal year 2017, the United States Attorney’s Office (USAO) only decided to prosecute 12. While the ATF investigated 12,710 denials, the USAO says that only 12 of them met their criteria for prosecution.

Officials from the Executive Office for United States Attorneys told the GAO that prosecuting denial cases can require significant effort and may offer little value to public safety compared to other cases involving gun violence.

State officials offered similar reasons, telling GAO that denial investigations can take law enforcement officials away from their core duties. State prosecutors also said gathering evidence to prove individuals knew they were prohibited was a challenge.

Ever wonder what happens when a NICS check is denied? (Photo: GAO)

The GAO report comes just a few months after U.S. Attorney General Jeff Sessions issued a statement outlining a plan to “improve school safety and better enforce existing gun laws.”

In the statement, Sessions orders federal prosecutors to “swiftly and aggressively prosecute appropriate cases against people who are prohibited from having firearms, and who lie in an attempt to thwart the federal background check system.”

Gun rights groups have echoed this statement. When asked about the GAO report, Lawrence G. Keane, Senior Vice President and General Counsel for National Shooting Sports Foundation, told GunsAmerica, “NSSF has long supported enforcing the gun laws on the books as the best way to reduce the unlawful acquisition and criminal misuse of firearms.”

SEE ALSO: ATF: Gun Dealers Cannot Transfer Firearms to Genderqueers Who Fail to Check ‘Male’ or ‘Female’ on 4473s

Prior to Sessions’ statement, USAO criteria for prosecution included individuals who are violent felons, have an active protection order, or have made multiple attempts to purchase a firearm in the past after being denied, among other offenses.

Since the statement, about 90 percent of USAOs have coordinated with their respective ATF field divisions to discuss revisions in USAO referral guidelines for standard denial cases, according to the USAO officials interviewed by the GAO.

The feds aren’t the only law enforcement entity that can prosecute “lie and try” cases, of course. Thirteen states process their own NICS background checks for firearms purchases, but the GAO found that 10 of those states do not investigate or prosecute NICS denials (California, Nevada, Utah, Colorado, Illinois, Tennessee, Florida, New Jersey, Connecticut and Hawaii).

While all states use the NICS system, thirteen states process those checks themselves.

The three that do prosecute NICS denials, however, prosecute a high percentage, many of which end in either conviction or a plea deal.

  • Oregon – According to state data, there were between 2,000 and 2,400 firearms denials annually from 2011 to 2013. According to the two Oregon county prosecutors the GAO interviewed, from late 2014 through 2017, their offices accepted about 141 of the more than 700 firearms denial investigations referred to their offices, with most prosecuted successfully.
  • Pennsylvania – According to state police reports, in 2016, approximately 6,500 denial cases were referred for investigation, of which about 1,600 were referred for prosecution and 356 resulted in convictions. For 2017, the state reported that approximately 5,500 denial cases were referred for investigations, of which 1,907 investigations were referred for prosecution, resulting in 472 convictions.
  • Virginia – Virginia does not refer all firearms denials for investigation, but instead uses risk-based criteria to refer a subset of prohibited categories for investigation, according to state officials. The number of referrals for investigation in Virginia has increased from about 770 in 2011 to around 1,700 in 2016 and 2017. State prosecutors noted that most convictions do not go to trial and are reduced to less severe violations and most of the penalties imposed tend to be probation, but there is the occasional jail term. For example, one Virginia prosecutor said that jail sentences are rare, but for a felon with a record of violence, sentences of 7 to more than 24 months in jail have been imposed.

The GAO report covers only until September 2017, a full five months before Sessions’ statement. It remains to be seen how the USAO will respond to the Attorney General’s call for more aggressive prosecutions or how the USAO will redistribute manpower to reach that goal.

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About the author: Jordan Michaels has been reviewing firearm-related products for over six years and enjoying them for much longer. With family in Canada, he’s seen first hand how quickly the right to self-defense can be stripped from law-abiding citizens. He escaped that statist paradise at a young age, married a sixth-generation Texan, and currently lives in Tyler. Got a hot tip? Send him an email at jordan@gunsamerica.com.

{ 7 comments… add one }
  • alex September 28, 2018, 11:48 pm

    why have laws on the books if your not going to enforce them,and our elected assholes want more laws,what a joke! i wonder how many criminals get guns because our government is too lazy to do their job. use them or get rid of them,they’re against our 2nd amendment rights.

  • Al September 28, 2018, 9:33 am

    I have a lot of experience in straws purchases, having sold guns for 7 years in an area that made our location the most convenient.
    The number of Girl friend/lover/wives that would ‘shop’ for s gun with male friend in tow and then choose the most popular of certain guns was a complete give away.
    It happens a lot, and nothing here surprises me.

  • KurtW September 28, 2018, 8:20 am

    Time to go after bloomberg and his Everytown gang for their false-info and straw purchases.

  • Frank Kolb September 26, 2018, 3:57 pm

    Long story short. Felony conviction (1st offender) in 1992. Had the conviction vacated in 2003. Petitioned (successfully) the court to restore my firearms rights in 2013 and obtained a CWP. Tried to purchase a firearm, denied by NICS. Appealed, 6 months later they reversed their position and I was able to purchase a firearm. I then obtained a UPIN number from NICS for any further purchases, although they have still put me on a delay every time. From what I’ve read, NICS no longer will consider any appeals… According to your article, I should have been prosecuted. Not all things are black and white, and I question the author’s ability to make fair judgements.

    • Dr Motown September 27, 2018, 9:53 am

      You certainly have a “niche” case which probably impacts a small percentage of firearms customers. Some situations, like minor assaults or domestic abuse, are settled by “nolo contendre” pleas and don’t appear on your background check after completing probation. By “vacated,” do you still have a conviction on file? Obviously, you’ve discovered the correct legal remedy for your prior criminal record. I guess we need another “box” to check on the 4473 with “further explanation needed” in order to cover such occasional situations.

      • Frank Kolb September 28, 2018, 1:45 pm

        From what I understand, I still have a conviction on file, but only visible to the courts. Apparently there’s a difference between “vacated” and “expunged”, and I haven’t researched it yet (next on my to-do list). I’m legally allowed to check the “no” box on any form that asks if I have a prior felony. The reason mine might be a “niche” case is the expense of the legal procedures. I hired an attorney the first time at a price tag of over $2,000 (I thought that would automatically reinstate my firearms rights, but it didn’t), and when I petitioned the court to reinstate my firearms rights, the filing fees alone were over $500. A felony conviction can be financially devastating, fortunately I recovered, but many don’t or aren’t aware that these options are available. After I had my felony vacated (and I thought I was legal), I was advised by a gun store owner to attempt a purchase, fill out the paperwork honestly, and find out. Unless a person lies on the paperwork, I don’t believe this should be something to prosecute someone over.

  • Localhero September 26, 2018, 8:49 am

    Are you complaining about this? It’s good news as far as I’m concerned.

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