The National Instant Criminal Background Check System (NICS) is used by Federal Firearms Licensees, importers, and manufacturers (collectively, “dealers”) to determine whether a prospective purchaser is legally prohibited from doing so. The process begins when the person provides a dealer with photo identification and a completed Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Form 4473. The form asks questions corresponding to the categories of persons prohibited by federal law from possessing firearms. Providing false information is a federal crime.
If a prospective purchaser answers “yes” to any questions, the sale must be denied. Otherwise, the dealer generally must request a NICS check from the Federal Bureau of Investigation (FBI) or their state point of contact. The transfer can occur only if the check does not identify prohibitive criteria, or if it takes more than 3 business days. If 3 business days pass without a determination that the transaction can be approved or must be denied, the dealer can either complete the sale (unless prohibited by local law) or wait for the check to be performed.
For approved transactions, identifying information about the purchaser and firearm is purged from NICS within 24 hours pursuant to federal law. For denied transactions, the FBI sends relevant information to ATF’s Denial Enforcement and NICS Intelligence (DENI) Branch for possible investigation. For a “delayed denial,” where a firearm transfer to a prohibited purchaser occurred because the check took more than 3 business days to complete, ATF is charged with recovering the firearm. Additionally, ATF consults with U.S. Attorneys’ Offices (USAO) to decide whether to refer for possible prosecution denial cases that it believes have prosecutorial merit.
The Department of Justice (DOJ) Office of the Inspector General (OIG) undertook this audit to examine (1) the effectiveness of the FBI’s quality control processes for NICS transactions, the impact of state reporting and recording on FBI NICS determinations, and the FBI’s referral of denied NICS transactions to ATF; (2) ATF’s initial screening and referral of denied transactions to its field offices for investigation, and ATF field offices’ investigation of denied transactions; and (3) the USAOs’ prosecution of crimes associated with denials. FBI Processing of NICS Requests We found the FBI generally has an effective internal control system and quality control process.
The FBI processed more than 51 million NICS transactions from 2008 to 2014, and approved or denied about 50 million of them (state authorities processed more than 68 million requests during the same period). The FBI denied 556,496 of these transactions. The FBI told us its quality control process results in an accuracy rate that ranges from 99.3 percent to 99.8 percent.
We judgmentally selected 447 denied transactions and found that only 1 transaction was incorrectly denied, resulting in a 99.8 percent accuracy rate.1 We also reviewed NICS requests that remained open at the FBI on the 88th calendar day without an approval or a denial because federal regulation requires that unresolved requests be purged from NICS prior to the 90th calendar day. Of the roughly 42 million transactions the FBI processed from fiscal year (FY) 2008 to FY 2013, the FBI purged slightly more than 1 percent due to lack of approval or denial within 90 days. We reviewed 384 of these transactions and determined the FBI appropriately followed its processes in 375 of them (97.7 percent) and committed errors in 9.
We also assessed instances where a delayed denial, an incorrect approval that was discovered within 24 hours, or other errors by the FBI may have resulted in a firearm transfer to a prohibited person. We identified 1,092 transaction records that were marked to indicate the FBI denied the transaction within 3 business days and also that ATF retrieval may be required. We judgmentally selected 306 out of the 1,092 transactions. For 241 of them, we determined the FBI appropriately followed its processes, or the errors did not affect operations. However, for 6 transactions, we found that while the FBI recorded denials internally within 3 days, the denial was not communicated to dealers until from 1 day to more than 7 months after the denial. Additionally, we found that 59 transactions were initially approved by the FBI but should have been denied.
The FBI’s quality control checks identified and corrected 57 of these errors as a part of its internal review process. Although we found the overall FBI error rate was exceedingly low, even an isolated NICS process breakdown can have tragic consequences, as evidenced by the June 2015 fatal shooting at a Charleston, South Carolina church, where the NICS process, with timely and accurate data from local agencies, could have prevented the alleged shooter from purchasing the gun he allegedly used.
A subsequent FBI Inspection Division (INSD) report attributed primary responsibility for the delay that allowed the firearm to be transferred to untimely responses and incomplete records at various state and local agencies that feed into NICS, a problem we identified more generally in our review.
INSD’s review also determined that a check of the National Data Exchange (N-DEX), an FBI-developed repository of unclassified criminal justice records, would have revealed a prohibiting incident report for the alleged shooter, leading INSD to recommend the FBI seek to identify and review additional database resources or stakeholders both internal and external to the FBI. FBI officials told us that its NICS Section would need law enforcement approval (by way of the Advisory Policy Board) and a regulation change (28 CFR Part 25) in order to access N-DEX to conduct firearm background checks.
We also found that a number of errors were not caught due to weaknesses in the FBI’s system for following up on pending transactions. For example, the NICS system does not have a tracking process to ensure that external research requests are made in a timely manner for each open transaction, requested information is received and evaluated in a timely manner, and further research is conducted when needed.
The FBI told us it intends to implement an automated feature in the new NICS system to send second requests for information to agencies that do not respond in the first instance, but it does not yet have an implementation date for this feature. Information from State NICS Checks From 2008 through 2014, states handled about 68 million of the more than 119 million NICS transactions. To help ensure the completeness of the NICS database, states are required to update it with supporting documents when a prospective purchaser attempts to buy a firearm and is approved, denied, or delayed.
We reviewed a judgmental sample of 631 state processed transactions and determined that in 630 of them the states did not fully update the NICS database or inform the FBI of the transaction’s outcome. These failures mean the NICS database is incomplete, and increases the risk that individuals found by states to be prohibited purchasers could be able to purchase firearms in the future. ATF Handling of NICS Denials We found ATF’s controls generally have enabled it to appropriately process denials and refer them to the proper field division for investigation.
We determined the ATF DENI Branch processed 99 percent of the 447 FBI referrals we reviewed in accordance with its policy. To assess ATF’s firearm recoveries, we reviewed field divisions’ retrieval efforts for 125 firearms needing recovery from our sampled transactions previously discussed. We determined ATF recovered 116 of those firearms, including all firearms inappropriately transferred due to FBI error, and that ATF made reasonable attempts to recover 8 of the 9 remaining firearms. Our audit also revealed a group of NICS transactions the FBI denied but ATF believed should have been approved because of a disagreement regarding the definition of a “Fugitive from Justice,” a category that disqualifies prospective gun purchasers.
This disagreement was referred to the Department’s Office of Legal Counsel (OLC) in 2008, and OLC provided informal advice in July 2008. In August 2010, the FBI requested formal reconsideration of that advice, but 6 years later OLC still has not rendered a decision. We believe this issue should be addressed as soon as possible. Of those transactions that were denied by the FBI in this category from November 1999 through May 2015, there were 49,448 instances in which ATF did not agree with the FBI’s denial determination. ATF tracked these cases as FBI denials but, because ATF did not agree with that determination, ATF did not attempt to recover the firearm in the 2,183 instances in which the firearm was transferred.
Prosecutions Related to NICS Denials We found that the number of NICS denial prosecutions has dropped substantially since FY 2003, when 166 subjects were accepted for consideration of prosecution. Between FY 2008 and FY 2015, an 8 year period, ATF formally referred 509 NICS denial cases that included 558 subjects to USAOs for possible prosecution. The USAOs accepted for consideration of prosecution 254 subjects (or less than 32 subjects per year), declined to prosecute 272 subjects, and decisions for 32 were pending at the time of our review.
We determined that, in general, USAOs most often prosecuted NICS denial cases when aggravated circumstances existed in addition to the prospective purchaser’s false “no” answer to at least one question on the Form 4473. An Executive Office for U.S. Attorneys (EOUSA) official told us and the Department confirmed in response to a draft of this report that their decisions reflected the application of the principle of the Department’s Smart on Crime Initiative that directs USAOs to prioritize prosecutions to focus on the most serious cases that implicate the most substantial federal interests. After the school shooting in Sandy Hook, Connecticut, the White House issued a report in January 2013 titled “Now is the Time: The President’s Plan to Protect our Children and our Communities by Reducing Gun Violence.”
One part of the multi-tiered plan, entitled “[m]aximize enforcement efforts to prevent gun violence and prosecute gun crime,” stated that the Attorney General would ask U.S. Attorneys to consider whether additional efforts would be appropriate in areas such as the prosecution of felons who illegally seek to obtain a firearm, and persons who attempt to evade the NICS system by providing false information. When we asked what the Attorney General did in response to the President’s plan, EOUSA explained that it provided U.S. Attorneys with two Presidential Memoranda, one on firearms tracing and one on improving records availability to NICS. However, these two memoranda addressed other parts of the “Now is the Time” plan and did not relate directly to the “maximize[ing] enforcement efforts” provision.
Thereafter, in response to a draft of this report, the Department stated that the Attorney General spoke with the U.S. Attorneys about the President’s plan on the afternoon of January 16, 2013, the date the President announced his plan. In addition, the Department noted that two U.S. Attorneys testified before Congress in February 2013 that, while the Department would prosecute particularly egregious false “no” cases arising from NICS denials, it would prioritize prosecuting prohibited persons who actually obtained guns illegally as opposed to those who attempted to purchase a firearm by making false statements during the background process but were unsuccessful.
EOUSA also provided the OIG with a White House Fact Sheet stating that on January 6, 2016, Attorney General Lynch instructed U.S. Attorneys to “continue to focus their resources – as they have for the past several years under the Department’s Smart on Crime initiative – on the most impactful cases, including those targeting violent offenders, illegal firearms traffickers, and dangerous individuals who bypass the background check system to acquire weapons illegally.”
We found that the number of NICS cases arising from denials prosecuted annually by the Department has not changed significantly since the President’s plan was issued, declining slightly from 24 in FY 2013 to 15 in FY 2014 and 20 in FY 2015, though the numbers of such cases remain extremely low compared to the overall number of federal firearms prosecutions.
In response to a draft of this report, EOUSA provided the OIG with FY 2016 data reflecting that overall number of firearms cases filed were projected to rise 4.3 percent over the average from FY 2012 through FY 2015, and that the percentage of firearms defendants as a share of the overall number of federal defendants would rise from 13.9 percent to a projected 15.7 percent during the same period, all of which it indicated reflected the Department’s prioritization of firearms prosecutions generally. The Department further indicated that it believes that it has consistently and appropriately prioritized the most impactful firearms prosecutions, and that at present there is no reason for it to reconsider its approach to NICS false “no” cases.