By Glenn Kessler
The Washington Post
WASHINGTON — "There are 9,000 people in 2010 that failed a background check who are felons on the run, and none of them were prosecuted."
— Sen. Lindsey Graham, R, S.C., interviewed on CNN's "State of the Union," March 31, 2013
Earlier this year, we detailed some of the interesting statistics concerning the National Instant Criminal Background Check System (NICS), which is done through either the FBI or state agencies.
In 2010, the FBI referred about 76,000 denials of firearms to an arm of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), but after a review 90 percent were not deemed worthy of further investigation while another 4 percent turned out to be incorrect denials. But then even of the relatively small percentage of cases referred to ATF field offices, another quarter turned out to be a case of mistaken denial and most of the rest had no prosecutorial merit.
In the end, 62 cases were referred for prosecution, but most were declined by prosecutors or dismissed by the court. Out of the original 76,000 denials, there emerge just 13 guilty pleas.
Opponents of new gun control laws, such as Graham, have seized on those statistics to argue that "the current system we have that's clearly broken" and that it would be better to fix it before expanding background checks.
To some extent, that's a matter of opinion. But it is worth exploring why so few denials end up being prosecuted — and to examine Graham's factual claim that "none" of the "felons on the run" were prosecuted. (The FBI figures actually show nearly 14,000 fugitives were denied gun permits in 2010, not 9,000 as Graham said, but that's a minor matter.)
The key purpose of the background checks in the Brady law is to prevent certain individuals — particularly those with criminal records — from easily buying guns. But from its inception, few people have been prosecuted for lying on the application form. A 2000 General Accounting Office report and a 2004 Justice Department Inspector General report disclosed a lack of clear guidelines for prosecution but also indicated that these are simply hard cases to make.
As the IG's report stated:
"We believe that the number of referrals and prosecutions is low because of the difficulty in obtaining convictions in NICS cases. These cases lack 'jury appeal' for various reasons. The factors prohibiting someone from possessing a firearm may have been nonviolent or committed many years ago. The basis for the prohibition may have been noncriminal (e.g., a dishonorable discharge from the U.S. military). It is also difficult to prove that the prohibited person was aware of the prohibition and intentionally lied to the FFL (federally licensed dealer). We were also told that in parts of the United States where hunting historically has been part of the regional culture, juries are reluctant to convict a person who attempted to purchase a hunting rifle."
Testifying before Senate Judiciary Committee in March, Attorney General Eric Holder Jr. said he wanted to discuss with U.S. attorneys whether more cases could be brought. "There are reasonable explanations as to why we have those numbers," he said, "but I want to make absolutely certain we are prosecuting all the people that we should who have been denied a gun, after failing the instant background system."
But all prosecutors must make choices about the cases they pursue, as Graham, a former Air Force staff judge advocate, surely knows.
Indeed, Milwaukee police chief Edward Flynn argued to Graham at a separate hearing in February that many of these cases are simply a paper chase.
"I want to stop 76,000 people from buying guns illegally. That's what a background check does. If you think we're going to do paperwork prosecutions, you're wrong," Flynn said. "If you think I am going to do a paper chase, then you think I am going to misuse my resources."
But, in fact, it would be wrong to assume that the federal numbers tell the whole story about prosecutions stemming from background checks. Here's what a Justice Department official explained about the people listed as fugitives in the NICS data:
"Speaking generally since we're talking nearly 14,000 — most of these people are state fugitives, not federal fugitives. When NICS denies based on an outstanding warrant, they routinely call the issuing jurisdiction (that would be state/local law enforcement) and let them know that the fugitive is, at that moment, at "Bob's gun shop" trying to buy a gun. In most cases, that means the issuing jurisdiction (state/local) will send a radio car to Bob's (the gun shop), scoop up the fugitive, then prosecute him/her in state court for whatever charges are pending. That means they get prosecuted on those charges — not NICS/gun offenses."
Unfortunately, there does not appear to have been any nationwide study of how many fugitives are captured via background checks.
However, the 2000 GAO report said "if the background check indicates that the prospective purchaser is a fugitive (i.e., an outstanding arrest warrant exists), applicable law enforcement agencies can attempt to arrest the individual. . . . Although no comprehensive statistics are available, some of these individuals subsequently have been arrested as a result of having been identified by the background check process."
We also did spot checks of some of the annual reports filed by state police agencies. None list the data in the same way but both Pennsylvania and Virginia, which have state-run systems, indicated that they identified and arrested fugitives in 2010 using background checks.
Here's what Pennsylvania's 2010 annual report said:
"The instantaneous background check process yielded warrant information that led to the arrest of 114 individuals while they were attempting to purchase a firearm last year. The coordinated efforts of PICS [Pennsylvania Instant Check System] staff and law enforcement agencies, who respond to these notifications, have resulted in the arrest of 1,365 fugitives since PICS was established in July 1998."
Here's what Virginia's 2010 annual report said:
"During 2010, 145 wanted persons were identified for extraditable offenses, which resulted in the arrest of 63 individuals wanted in Virginia and 2 individuals who were named in an outstanding warrant from another state. In 2010, the State Police requested 942 criminal investigations related to the illegal sale or attempt to purchase firearms. Additionally, during 2009, 1,286 criminal investigations for the illegal sale or attempt to purchase a firearm resulted in 871 (68 percent) cases."
A Graham spokesman referred us to Holder's statement concerning the few federal prosecutions, but otherwise did not provide a comment on our findings.
While it is legitimate to raise questions about whether enough people are being prosecuted for lying on gun permits, that issue is not an excuse to invent facts. It would be helpful if a comprehensive nationwide survey on fugitive prosecutions had been done, but the available evidence shows that at least some fugitives are identified through the background system and subsequently pursued at the state level for prosecution.
Graham's sweeping claim of "none" does not stand up to scrutiny.