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Tom Kertscher
By Tom Kertscher February 3, 2013

U.S. files criminal charges in fraction of gun denial cases, Mayors Against Illegal Guns says

Mayors Against Illegal Guns, which has intensified its efforts since mass shootings spiked in 2012, claims the U.S. rarely prosecutes felons and others who can't legally own a gun but are caught trying to buy one.

Milwaukee Mayor Tom Barrett is among the founding members of the group, which aired a TV ad in Milwaukee and other cities in January 2013 as part of its campaign to spur action by President Barack Obama and Congress. The group supports measures such as requiring every gun buyer to pass a criminal background check.

Regarding the prosecutions, Mayors Against Illegal Guns stated on its website:

"It is a federal crime for felons and other prohibited gun purchasers to attempt to buy a gun. The (U.S.) Department of Justice, however, has not been prosecuting people who fail background checks at licensed gun dealers, leaving them free to buy from unlicensed sellers who don’t conduct checks – including largely anonymous Internet sales."

The statement continued with a reference to one Department of Justice agency, the Bureau of Alcohol, Tobacco and Firearms and Explosives (ATF), claiming:

"In 2009, the Federal Bureau of Investigation referred more than 71,000 such cases to ATF, but U.S. attorneys ultimately prosecuted only 77 of them."

Let’s look into the disparity.

Gun background checks

When asked for backup, Erika Soto Lamb, spokeswoman for Mayors Against Illegal Guns, cited a 2011 report that was funded by the U.S. Department of Justice and produced by the Regional Justice Information Service in St. Louis, Mo.

The quasi-government agency’s report explains criminal background checks and gives statistics about attempted gun purchases in 2009 that were denied as a result of background check provisions in the federal Brady Act.

The Brady Act was adopted in 1993, 12 years after President Ronald Reagan; his press secretary, James Brady; and two law enforcement officers were shot and wounded in John Hinckley Jr.’s assassination attempt on Reagan.

The law requires a criminal history background check be done by the FBI or a state agency on persons who attempt to purchase a firearm from a licensed dealer. If the potential buyer fails the check, the gun sale is denied and the case is referred to the ATF.


In 2009, the FBI conducted more than 6 million background checks and denied 71,010 of them (1.1 percent). The most common reasons were the applicant had a felony conviction or indictment, had a misdemeanor domestic violence conviction or was under a domestic violence restraining order.

So, Mayors Against Illegal Guns is correct on the first number it cited.

But that doesn’t means a crime occurred in all 71,000 cases.

Jennifer Karberg of the St. Louis research organization that did the report told us that if a person trying to buy a gun indicates on the application form that, for example, he is a felon, the application will simply be denied. On the other hand, if a felon lied on the form about his conviction, that’s a crime that could be prosecuted, she said.

Moreover, after further review, about one-fourth of the applications that are denied by the FBI are reversed after a determination that no denial should have been done, Karberg said.

So those cases also don’t involve a crime.

Of the more than 71,000 cases that were referred to ATF, the agency sent only 4,700 cases to its offices around the country for further investigation, according to the report by the St. Louis research organization. The rest of the denials did not meet guidelines for further investigation, or they were overturned after being reviewed.

Of the 4,700 cases that went on to ATF field offices, the vast majority were not referred to federal prosecutors for possible criminal charges, the report says. The most common reasons were "no prosecutive merit," federal or state guidelines weren’t met, or the applicant should not have been denied in the first place.

Ultimately, the field offices asked U.S. attorney’s offices (there are two in Wisconsin) to file a total of 140 criminal charges. From there, only 77 charges were filed. The most common charges were submitting false information on the gun purchase application or being a convicted felon in possession of a firearm.

Karberg told us the 77 charges likely involved fewer than 77 individual cases, given that multiple charges could be filed in some cases.

The author of the report, Ronald Frandsen, indicated to The Washington Post Fact Checker that the low rate of prosecution is the result of the priority given to such cases. And the Fact Checker said there is a troubling lack of detailed data that might clarify why few cases were referred for prosecution.

Mayors Against Illegal Guns argues that more cases could be prosecuted.

The group cited a 2004 Department of Justice review of enforcement of the Brady Act. The report found that ATF was referring "standard denial" cases to its field offices that "were not likely to be prosecuted." But it also said that historically, federal prosecutors "have been unsuccessful in achieving convictions in many of these cases and consequently have been unwilling to expend their limited resources on prosecuting" them.

The report went on to explain why prosecutors may not want to file charges in certain cases: A person prohibited from buying a gun may have committed a felony that was not violent or was committed many years ago; a prohibited person might be trying to buy a hunting rifle; and it’s difficult to prove that the prohibited person was aware of the prohibition and intentionally lied on his application.

So, there are indications that federal law enforcement authorities could file more criminal charges in cases in which a gun purchase application is denied. But it’s also clear that large numbers of the denials don’t involve any crime at all and some cases are not provable.

Our rating

Mayors Against Illegal Guns said that in 2009, the FBI "referred more than 71,000" cases of people failing background checks when trying to buy a gun to another federal agency, "but U.S. attorneys ultimately prosecuted only 77 of them."

The two numbers are essentially correct, but the statement takes things out of context in that, in a significant number of cases, no crime was committed and other cases are not provable.

We rate the statement Half True.

Featured Fact-check

Our Sources, Issues page

Email interview, Mayors Against Illegal Guns spokeswoman Erika Soto Lamb, Jan. 12, 3013

Regional Justice Information Service, "Enforcement of the Brady Act, 2009," April 2011

Regional Justice Information Service, "Enforcement of the Brady Act, 2010," August 2011

Interview and email interview, Regional Justice Information Service project manager Jennifer Karberg, Jan. 22, 2013

Washington Post Fact Checker, "The claim that the Brady law prevented 1.5 million people from buying a firearm," Jan. 24, 2013

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More by Tom Kertscher

U.S. files criminal charges in fraction of gun denial cases, Mayors Against Illegal Guns says

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