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By Jake Berry March 22, 2013

Most people trying to buy a gun illegally are never prosecuted, U.S. Senator Kelly Ayotte says

Before Congress enacts any new gun control laws, the nation’s law enforcement officers and courts should better enforce the regulations they have on the books now, according to U.S. Sen. Kelly Ayotte.

In a meeting with the Telegraph editorial board, New Hampshire’s junior senator took aim last month at the national background check system, which does not go far enough prosecuting those who illegally try to obtain weapons, she said.

"Of approximately 80,000 in 2012 that were denied (a gun) because of a background check … only 44 people were prosecuted for that," Ayotte said during the February 19 meeting.

"That surprised me," she said. "I want to look further at what we’re doing in terms of enforcement."

If Ayotte’s numbers are right, the nation’s .055 prosecution rate doesn’t make for a very good shooting percentage. So, we decided to run the numbers ourselves.

But first, some background.

According to federal figures, most applicants who are denied a firearm through the FBI’s National Instant Criminal Background Check System are rejected because of a prior criminal conviction, restraining order or another past issue.

In almost every case, these people can be prosecuted. Here’s why:

Firearms dealers, who provide the federal application form, are instructed to immediately turn away applicants if they acknowledge a past conviction or other prior issue, even before they conduct the FBI check.

Applications that are submitted to the FBI and later rejected are typically denied because the applicant failed to acknowledge their record on the initial form, which can qualify as a federal crime for providing false information.

In rare cases, an applicant might initially succeed in obtaining a firearm, despite a criminal record. But once the background check returns showing their past convictions, they could face charges of being a felon in possession of a firearm.

Now, on to the numbers.

Reached for comment, Ayotte’s staff pointed us in the direction of  U.S. Attorney Timothy Heaphy.

Earlier this winter, Heaphy, who represents the western district of Virginia, presented those numbers to members of the Senate judiciary committee during a Feb. 12 hearing on gun violence.

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In his testimony, Heaphy cited research published recently by the U.S. Department of Justice, in conjunction with the Regional Justice Information Service, a Missouri-based group that provides research for the justice department, among other public safety and governmental agencies.

The information service’s research supports Ayotte, and Heaphy’s numbers, showing 80,191 applications denied, along with 44 active prosecutions.

But, these numbers are based on 2010 data, not 2012, as Ayotte and Heaphy claimed, and reflect only a portion of the total national figures, according to Ronald Frandsen, grants administrator for the information service.
The 80,191 figure, reported in a February study titled "Background Checks for Firearm Transfers, 2010," includes only those applications denied by state and local permitting agencies, Frandsen said.

Under the federal Brady Handgun Violence Prevention Act of 1993, gun shop owners and other licensed authorities in many states -- 21 to be exact, including New Hampshire -- conduct at least a portion of the background checks themselves through the FBI’s background check system.

Agencies in these states conducted about 4.37 million checks in 2010, leading to the 80,191 denials, according to Frandsen’s report.

But, those 29 states that do not conduct the checks themselves defer instead to the FBI to do so. In 2010, the FBI conducted about 6.04 million checks, 72,659 of which were denied, Frandsen noted in the study.

That places the total number of denied checks conducted in 2010 at 152,850 -- about 1.5 percent of the checks conducted.

Now on to the prosecutions count.

A separate report, "Enforcement of the Brady Act, 2010,"  published by Frandsen in August, counts 62 charges filed across the country by U.S. Attorneys in 2010, most for falsifying when buying firearms (22) and possession of firearms by a convicted felon (11). Of those 62 charges, 18 were dropped that year, leaving 44 cases intact, according to Frandsen’s report.

That number equals Ayotte’s claim. But, once again, it tells only part of the story.

The 44 charges, 13 of which were still pending at the end of 2011, reflect only those cases brought by federal prosecutors and does not consider charges filed by state or local police agencies, Frandsen noted.

In his research, Frandsen tracks those local cases reported voluntarily by states. In 2010, four states -- Colorado, Oregon, Pennsylvania and Virginia -- reported 1,520 arrests. That count does not include any arrests made that year in the remaining 17 states that conduct at least some background checks themselves.

"You’d have to say (the total number of arrests) would be higher," Frandsen said. "There’s no question."

Our ruling:

On the numbers, Ayotte is on track. In one year, more than 80,000 background checks were denied at the state and local level and federal authorities pursued 44 charges in court, as the senator claimed. However, the report she cited is based on 2010 numbers, not 2012, but that’s small potatoes.

More to the point, Ayotte confuses state and federal numbers in her statement, using state rejections (80,000) and federal prosecutions (44). Looking at state enforcement alone, just four states had more than 1,500 arrests. While those are arrests, not prosecutions, it stands to reason the number of state prosecutions is vastly higher than the figure Ayotte cited.

That ratio is not nearly as dramatic as Ayotte suggested, but her larger point remains valid: the majority of failed background checks do not lead to criminal charges or prosecutions. With this in mind, we rate her claim Mostly True.

Our Sources

U.S. Sen. Kelly Ayotte, editorial board meeting, February 19, 2013

Email Interview with Liz Johnson, spokeswoman for U.S. Sen. Kelly Ayotte, March 11, 2013

Email interview with Brian McGinn, spokesman for U.S. Attorney Timothy Heaphy, March 12, 2013

U.S. Sen. Lindsey Graham and U.S. Rep. Trey Gowdy, letter to U.S. Attorney General Eric Holder, February 19, 2013 (retrieved from the National Rifle Association).

U.S. Department of Justice, Background checks for Firearm Transfers, 2010 - Statistical Tables, February 2013

U.S. Department of Justice, Enforcement of the Brady Act, 2010: Federal and State Investigations and Prosecutions of Firearm Applicants Denied by a NICS Check in 2010, August 2012

Interview with Ronald Frandsen, grants administrator for the Regional Justice Information Service, March 14, 2013

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Most people trying to buy a gun illegally are never prosecuted, U.S. Senator Kelly Ayotte says

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