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

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.

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).

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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