Gun Control: Implementation of the Brady Handgun Violence Prevention Act
(Chapter Report, 01/25/96, GAO/GGD-96-22).
The Brady handgun control law imposed a five-day waiting period on
handgun sales to allow for background checks. GAO's self-initiated
review of the first full year of the Brady bill's implementation
discusses (1) how often the five-day waiting period and background
checks resulted in denying criminals and other ineligible persons the
opportunity to buy handguns from federally licensed dealers; (2) the
extent to which such denials resulted in the arrest and the prosecution
of convicted felons and other ineligible purchasers who falsely
completed the handgun purchase application form; and (3) the effects of
the various legal challenges to the Brady bill. Although GAO found that
4.3 percent of purchase applications were denied during the law's first
year, these results are not projectable to the universe of denials
nationwide because standard and common criteria were not used to make
denials.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: GGD-96-22
TITLE: Gun Control: Implementation of the Brady Handgun Violence
Prevention Act
DATE: 01/25/96
SUBJECT: Firearms
Gun control law
Law enforcement personnel
Law enforcement agencies
Data bases
Crime prevention
Crimes or offenses
Litigation
Criminals
Eligibility criteria
IDENTIFIER: Fort Worth (TX)
Houston (TX)
Harris County (TX)
West Virginia
New York
Iberia Parish (LA)
Ravalli County (MT)
Arkansas
Clayton County (GA)
Nevada
Abilene (TX)
Otero County (NM)
Alamance County (NC)
Forrest County (MS)
Val Verde County (TX)
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Cover
================================================================ COVER
Report to the Committee on the Judiciary, U.S. Senate, and the
Committee on the Judiciary, House of Representatives
January 1996
GUN CONTROL - IMPLEMENTATION OF
THE BRADY HANDGUN VIOLENCE
PREVENTION ACT
GAO/GGD-96-22
Gun Control
(187010)
Abbreviations
=============================================================== ABBREV
ATF - Bureau of Alcohol, Tobacco and Firearms
BJS - Bureau of Justice Statistics
CLEO - chief law enforcement officer
DOJ - Department of Justice
FBI - Federal Bureau of Investigation
REJIS - Regional Justice Information Service
Letter
=============================================================== LETTER
B-259804
January 25, 1996
The Honorable Orrin G. Hatch
Chairman
The Honorable Joseph R. Biden, Jr.
Ranking Minority Member
Committee on the Judiciary
United States Senate
The Honorable Henry J. Hyde
Chairman
The Honorable John Conyers, Jr.
Ranking Minority Member
Committee on the Judiciary
House of Representatives
This report presents information on the implementation of phase I of
the Brady Handgun Violence Prevention Act (P.L. 103-159), which went
into effect February 28, 1994. During phase I, Brady requires a
5-day waiting period for handgun purchases to allow law enforcement
officers time to conduct presale background checks for evidence of
felony convictions or other disqualifying information.
This report focuses on the number of and reasons for handgun purchase
denials in selected jurisdictions. In addition, the report addresses
the extent of federal agency follow-up enforcement action regarding
convicted felons and others who falsify their status on handgun
purchase application forms. Finally, the report also discusses
effects of court cases challenging the constitutionality of the act.
The Departments of Justice and the Treasury and the Bureau of
Alcohol, Tobacco and Firearms (ATF) provided written comments on a
draft of this report. Their views have been incorporated where
appropriate, and their comments have been reprinted in appendixes V
and IV, respectively.
We are sending copies of this report to the Secretary of the
Treasury, the Attorney General, the Director of ATF, and other
interested parties. Copies will also be made available to others
upon request.
The major contributors to this report are listed in appendix VI.
Please feel free to call me at (202) 512-8777 if you or your staff
have any questions.
Norman J. Rabkin
Director, Administration of
Justice Issues
EXECUTIVE SUMMARY
============================================================ Chapter 0
PURPOSE
---------------------------------------------------------- Chapter 0:1
Since 1968, convicted felons, illegal drug users, and fugitives from
justice have been barred by federal law from purchasing guns from
federally licensed firearms dealers.\1 Even so, until Congress
enacted the Brady Handgun Violence Prevention Act, there were no
national procedures for dealers to verify whether any of their
customers were ineligible purchasers.\2 Beginning February 28, 1994,
Brady's phase I, or interim provisions, imposed a waiting period of 5
business days to allow state or local law enforcement officers time
to conduct presale background checks on purchasers of handguns. The
checks are to determine, on the basis of criminal history and other
available records, if the prospective purchasers are prohibited by
federal, state, or local laws from buying handguns.
GAO's self-initiated review of the first full year of Brady's
implementation was designed to determine (1) how frequently the 5-day
waiting period and background checks were resulting in denying
criminals and other ineligible individuals the opportunity to
purchase handguns from federally licensed dealers; (2) the extent to
which such denials have resulted in follow-up enforcement actions
(e.g., arrests and prosecutions) against convicted felons and other
ineligible purchasers who falsely complete the handgun purchase
application form; and (3) the effects of the various legal challenges
to Brady.
--------------------
\1 Under the Gun Control Act of 1968, other ineligible purchasers
include anyone adjudicated a "mental defective" or committed to a
mental institution, dishonorably discharged veterans of the Armed
Forces, persons who have renounced their U.S. citizenship, and
aliens illegally or unlawfully in the United States. In this report,
we will refer to these aliens as "illegal aliens."
\2 The act is named for former White House press secretary James
Brady, who was disabled by a gunshot wound sustained during an
attempted assassination of President Reagan.
BACKGROUND
---------------------------------------------------------- Chapter 0:2
Enacted after several years of extensive public debate, Brady
continues to be controversial. Opponents of gun control note that
criminals can easily circumvent the law by purchasing handguns on the
secondary market or by having friends or spouses without a criminal
record make the purchases from dealers. Proponents acknowledge that
criminal records checks alone will not prevent felons from obtaining
firearms but say the checks could reduce dealer sales to disqualified
persons and complement other crime control measures, such as stiffer
mandatory sentences for firearms offenses.
At the time of GAO's review, Brady's provisions were applicable to 26
states ("Brady states"). The other 24 states screen handgun
purchasers through a permit system or other procedures that,
according to the Bureau of Alcohol, Tobacco and Firearms (ATF), meet
or exceed Brady's requirements. ATF, within the Department of the
Treasury, licenses gun dealers and is responsible for overseeing
their compliance with Brady.\3
Generally, the law enforcement community has strongly supported
Brady, as evidenced by public endorsements from the International
Association of Chiefs of Police and other organizations.
Nonetheless, some sheriffs have filed federal lawsuits essentially
contending, among other things, that the phase I background check
provision of Brady is beyond the scope of Congress' Commerce Clause
powers and is inconsistent with the Tenth Amendment. Eight of the
nine court cases that had been initiated against the Brady Act
through December 31, 1995, resulted from separate filings by
individual sheriffs--each having jurisdictional responsibility for
one county or parish in his respective state--whereas the ninth and
most recent case was filed by the Wyoming Sheriff's Association. By
December 1994, federal district courts had ruled in favor of the
respective sheriff in five of the six cases decided. All six cases
were appealed to U.S. circuit courts. In September 1995, the U.S.
Court of Appeals for the Ninth Circuit reversed two of the federal
district courts' decisions, saying the federal government can require
state and local law enforcement agencies to check records of
prospective handgun buyers. As of October 1995, the four remaining
federal district court cases were still under appeal.
Brady does not impose any reporting requirements on gun dealers or
law enforcement officials. Thus, except for estimates, no
comprehensive or national data on handgun purchase applications and
denials are available. As reported by the Treasury Department,
limited surveys by ATF found denial rates of 4.7 percent (The Brady
Law: The First 100 Days) and 3.5 percent (One-Year Progress Report:
Brady Handgun Violence Prevention Act) in selected jurisdictions.
GAO did not conduct a national survey of law enforcement officials.
To do so would have involved hundreds of jurisdictions and would have
been beyond GAO's available resources. Instead, GAO judgmentally
selected and surveyed 20 law enforcement jurisdictions (7 statewide
and 13 local). The results of GAO's study, therefore, are not
projectable to the universe of denials nationwide.
--------------------
\3 According to ATF data, there was a total of about 92,000 federal
firearms licenses held by gun dealers in the 26 Brady states, as of
March 31, 1995.
RESULTS IN BRIEF
---------------------------------------------------------- Chapter 0:3
The legislative history of Brady gives no indication of what
policymakers expected or considered to be a reasonable denial rate.
The law enforcement agencies in GAO's survey cumulatively denied
19,740 (4.3 percent) of the 457,020 applications processed during the
first year of Brady's implementation.\4 The results of GAO's survey
are not projectable to the universe of denials nationwide. In 15 of
the jurisdictions with more detailed records, GAO found that the
denial rate varied from jurisdiction to jurisdiction, in part,
because law enforcement officials did not use common or standard
criteria in making denials. For instance, regarding criminal history
disqualifiers, some jurisdictions made denials only if the records
showed a felony conviction or pending indictment, but other
jurisdictions also denied on the basis of outstanding misdemeanor
warrants, including warrants for unpaid traffic tickets. Also, in
three jurisdictions in Texas, application forms being sent to wrong
law enforcement agencies was a primary factor causing high denial
rates.
Only 4 of the 15 jurisdictions had sufficiently detailed records to
permit GAO to quantify denials based on violent crimes. GAO found
that denials of applicants who had been convicted of or indicted for
aggravated assault, murder, rape, or robbery totaled 371 and
represented 0.2 percent of the applications and 4.9 percent of the
denials in these 4 jurisdictions.
With limited exceptions, law enforcement officers in the 15
jurisdictions told GAO they relied solely on criminal history records
in conducting background checks because no databases were available
for searching the other prohibited categories, such as illegal aliens
and dishonorably discharged veterans. The exceptions involve four
jurisdictions in which law enforcement officials also routinely
checked for mental history disqualification by using records from
local courts and/or from state- or county-operated mental health
facilities.
Due to the way cases are coded in the Department of Justice's
databases, the number of Brady-related prosecutions was not readily
quantifiable. Available information indicated, however, that the
number of prosecutions was relatively small and that such follow-up
enforcement action was not a priority of Justice or U.S. Attorneys.
On the other hand, Justice and ATF officials emphasized that the
primary goal of Brady is being achieved; that is, felons are being
prevented from buying handguns from federally licensed gun dealers.
The full effects of the court challenges to Brady will not be known
until all appeals are decided. In the meantime, indications are that
background checks are still being conducted in seven of the nine
jurisdictions involved in the lawsuits, while no checks have been
conducted at all in the other two jurisdictions. The Justice
Department has determined that it lacks authority to impose penalties
or otherwise prosecute chief law enforcement officers who choose not
to conduct background checks. Justice has noted, however, that
injunctive relief,\5 for example, may be an option to compel law
enforcement officials to fulfill their responsibilities under the
act. Moreover, Brady provides neither Justice nor Treasury the
authority to redesignate chief law enforcement officers in situations
where the initially designated officers do not perform the background
checks.
--------------------
\4 These denials are based on local law enforcement officials'
judgment. GAO did not attempt to determine whether the denials were
appropriate.
\5 Injunctive relief refers to the use of an injunction--a court
order--to compel a party to do or refrain from doing a particular
act.
GAO'S ANALYSIS
---------------------------------------------------------- Chapter 0:4
BRADY RESULTS: HANDGUN
PURCHASE DENIALS AND
FOLLOW-UP ENFORCEMENT
ACTIONS
-------------------------------------------------------- Chapter 0:4.1
In analyzing denial statistics and reasons in 15 judgmentally
selected jurisdictions, GAO found that almost half (48.7 percent) of
the denials were because the prospective handgun purchasers had
felony or misdemeanor criminal histories, 4.1 percent were based on
other Brady ineligible categories, 0.8 percent involved restraining
orders, 7.6 percent involved traffic offenses, and the remaining 38.9
percent were based on administrative or other reasons.\6
Nearly all of the denials based on criminal histories were for
felony-related reasons, although some differences existed among the
jurisdictions regarding the course of action taken in response to
records showing a felony arrest but not showing a disposition. The
other denials in the criminal history category involved prospective
handgun purchasers with outstanding misdemeanor warrants. Law
enforcement officials in the respective jurisdictions told GAO that
any individual with an outstanding misdemeanor warrant is considered
to be a fugitive from justice.
Given the absence of pertinent databases, denials based upon the
other Brady ineligible categories were relatively few. GAO found
that most of these denials resulted coincidentally from searches of
criminal history records. For example, in some instances, the
records showed arrests or convictions for violations of immigration
laws or absences without leave from the military.
Among the 15 jurisdictions, 6 jurisdictions denied applications
because of outstanding misdemeanor warrants. For four of the
jurisdictions, the available data did not enable GAO to determine the
nature of the warrants. For the other two, GAO found that all of the
denials were for unpaid parking tickets and other traffic offenses.
Administrative or other reasons accounted for the second highest
percentage of denials in the 15 jurisdictions, with 38.9 percent.
Nearly all of the denials in this category were due to gun dealers
transmitting handgun purchase application forms to the wrong law
enforcement agency. All of the denials involving missent forms were
made by three jurisdictions in Texas--the cities of Fort Worth and
Houston and Harris County. Denials based on missent forms
represented nearly two-thirds of the total denials within these three
jurisdictions. This volume largely explains why Fort Worth, Houston,
and Harris County had the highest overall denial rates--14.5, 18.5,
and 26.8 percent, respectively--among the 15 jurisdictions GAO
analyzed.
On the basis of queries to ATF's field offices, ATF headquarters
staff told GAO that as of July 1995, a total of at least seven
persons (nationally) had been successfully prosecuted for making
false statements on the Brady handgun purchase form. Three of the
cases involved individuals who lied about drug-related convictions.
The subsequent prosecutions of these individuals resulted in prison
or custody sentences of 12 to 24 months. The other four cases
(related gun-trafficking cases) involved individuals who had
falsified state identification cards and the Brady handgun purchase
form to portray themselves as residents of West Virginia when, in
fact, they resided in New York. All four defendants pled guilty.
Three defendants were sentenced to 2 years' probation, and the fourth
was sentenced to 6 months' home confinement and 3 years' probation.
--------------------
\6 These rates are not projectable to the universe of denials
nationwide.
EFFECTS OF COURT CHALLENGES
TO BRADY
-------------------------------------------------------- Chapter 0:4.2
In five of the six cases decided as of July 1995, the federal
district courts held Brady's phase I background check provision to be
unconstitutional as a violation of the Tenth Amendment. However, the
decisions found the remainder of Brady's provisions severable and
that they, therefore, remained operative. In the sixth case, the
court held that Brady's phase I background check provision was
consistent with the Tenth Amendment. In September 1995, the U.S.
Court of Appeals for the Ninth Circuit reversed two of the rulings of
unconstitutionality. The appeals court held that the federal
government can impose the minimal burden of requiring state and local
law enforcement agencies to check the records of prospective handgun
buyers.
Despite the federal district court rulings, at the time of GAO's
review indications were that background checks were still being
conducted in seven of the nine jurisdictions in which lawsuits had
been filed. On the other hand, even though Brady has been in effect
since February 28, 1994, indications were that no background checks
on handgun purchasers had been conducted in the other two
jurisdictions--Iberia Parish, Louisiana, and Ravalli County, Montana.
RECOMMENDATIONS
---------------------------------------------------------- Chapter 0:5
GAO is making no recommendations in this report.
AGENCY COMMENTS
---------------------------------------------------------- Chapter 0:6
The Justice Department, as well as the Treasury Department and ATF
jointly, provided written comments on a draft of this report. These
comments are presented in appendixes V and IV, respectively. GAO
incorporated the technical and clarifying comments where appropriate,
and the more substantive comments are discussed at the ends of
chapters 2 and 3. All three agencies generally said that the draft
report accurately portrayed Brady's implementation.
INTRODUCTION
============================================================ Chapter 1
Effective February 28, 1994, the Brady Handgun Violence Prevention
Act (Brady)\7 requires firearms licensees, such as licensed firearms
dealers, to, among other things, request a presale background check
on handgun purchasers. Brady calls for implementation in two phases.
Under phase I, or the interim provisions, the checks are to be
conducted by the chief law enforcement officer (CLEO) in the
purchaser's residence community to determine, on the basis of
available records, if the individual is legally prohibited from
buying the firearm under the provisions of federal, state, or local
law.\8 The sale may not be completed for 5 business days unless the
dealer receives an approval from the CLEO before that time.\9 If the
CLEO does not contact the dealer within the 5-day period, the dealer
may make the sale unless the dealer has reason to believe the
transaction would be unlawful. Under the phase II permanent
provisions effective November 30, 1998, the 5-day waiting period
requirement terminates and presale inquiries for all firearms sales
will be made only to a national background check system that will be
operated by the Federal Bureau of Investigation (FBI).
--------------------
\7 P.L. 103-159, 107 Stat. 1536 (1993).
\8 Brady defines a CLEO as the "chief of police, sheriff, or an
equivalent officer or the designee of any such individual." In some
states--by agreement among the applicable law enforcement
agencies--the state police department serves as the CLEO.
\9 Brady defines a business day as a day on which state offices are
open.
BRADY CALLS FOR BACKGROUND
CHECKS OF PROSPECTIVE HANDGUN
PURCHASERS
---------------------------------------------------------- Chapter 1:1
Since early 1987, Congress has considered various versions of
legislation restricting access to handguns. These legislative
efforts were labeled "Brady" bills--referring to James Brady, the
Reagan administration press secretary who was disabled by a gunshot
wound sustained during an attempted assassination of the President.
Many of the early legislative efforts called for a waiting period for
handgun purchases. The waiting period was designed, in most
instances, to allow for the "opportunity" to conduct background
checks, not the imposition of a mandatory background check
requirement. Often, this opportunity meant that a copy of the
application form was to be sent to the appropriate local law
enforcement agency. In addition, the waiting period was described as
providing a cooling-off period to deter impulse purchases. Brady
opponents objected to the waiting period and offered amendments or
substitute legislation typically calling for systems that would allow
point-of-sale background checks to screen out criminals and not delay
or otherwise interfere with the rights of law-abiding citizens to buy
and own handguns.
The current two-phased approach, first introduced in 1991 and
described by its original sponsors as a compromise, (1) includes a
waiting period that allows CLEOs time to conduct the background check
required of them\10 and (2) provides for the eventual point-of-sale
background check system. To do this, Brady amends the Gun Control
Act of 1968,\11 which contains the principal federal restrictions on
commerce in firearms and ammunition.
Since passage of the 1968 act, the Bureau of Alcohol, Tobacco and
Firearms (ATF) has licensed and regulated manufacturers, importers,
dealers, and pawnbrokers in firearms. Under the 1968 act, as
amended, those licensees (hereinafter referred to as gun dealers) are
prohibited from selling firearms or ammunition to anyone they know or
have reasonable cause to believe (1) has been convicted of (or is
under indictment for), in any court, a crime punishable by more than
1 year in prison; (2) is a fugitive; (3) is an unlawful user of a
controlled substance; (4) has been adjudicated as a mental defective
or has been committed to a mental institution; (5) is an illegal
alien; (6) is a dishonorably discharged veteran of the Armed Forces;
or (7) is a person who has renounced U.S. citizenship. Under the
1968 act, persons purchasing a firearm from a licensed dealer are
required to certify their eligibility, but no background checks or
other verification of the information supplied is required. In
contrast, while including the 1968 prohibitions and also requiring
buyers to certify their eligibility, Brady is the first federal
legislation providing for presale background checks to verify such
eligibility.
An eighth prohibited category of purchasers was added by the Violent
Crime Control and Law Enforcement Act of 1994 (P.L. 103-322, 108
Stat. 1796 (1994)). Generally, the 1994 Crime Act provides that it
is unlawful for any person to possess or receive any firearm if that
person is subject to a court order that
"restrains such person from harassing, stalking, or threatening
an intimate partner of such person or child of such intimate
partner or person, or engaging in other conduct that would place
an intimate partner in reasonable fear of bodily injury to the
partner or child."
Under Brady's interim provisions, a prospective handgun purchaser
must complete a form--generally referred to as the Brady form (see
app. I)--giving his or her name, date of birth, and residence
address and certifying that he or she is not a member of various
categories prohibited from buying a firearm.\12 Then, within 1
business day, the gun dealer must provide notice of the form's
contents to the CLEO of the area in which the buyer's residence is
located. The CLEO must then "make a reasonable effort" to ascertain
within 5 business days whether the sale would violate federal, state,
or local law, including research in whatever state and local
record-keeping systems are available and the FBI-operated National
Crime Information Center files (see fig. 1.1).
Figure 1.1: Flowchart of
Handgun Purchase Application
and Background Check Procedures
Under Phase I of Brady
(See figure in printed
edition.)
Source: Developed by GAO on
the basis of discussions with
ATF officials and reviews of
Brady.
(See figure in printed
edition.)
The CLEO may allow the sale to proceed at any time during the waiting
period by advising the gun dealer that the applicant has not been
determined to be a prohibited person. Alternatively, if not notified
to the contrary, the gun dealer may assume that the purchaser is not
disqualified and complete the sale upon expiration of the 5-day
period. However, if the search reveals that the applicant is
ineligible to receive a handgun, the CLEO is to notify the dealer
(without providing the reason) that the sale is denied. The CLEO may
also instruct the dealer to refer the buyer to the CLEO if the buyer
has questions or otherwise challenges the denial. Generally, such
questions or challenges are sometimes referred to as "administrative
appeals," even though practices are somewhat less formal than this
term implies. For instance, by providing the law enforcement officer
additional documentation, a buyer may be able to reverse a denial
that initially resulted from inaccurate or incomplete information in
the databases searched. Brady also provided a remedy for erroneous
denial of a firearm. Generally, any person denied a firearm due to
the provision of erroneous information or who was not prohibited from
receipt of a firearm may bring action to direct the correction of the
erroneous information or that the transfer be approved. In any such
action, the court may allow the prevailing party a reasonable
attorney's fee as part of the costs.
Finally, under Brady's interim provisions, certain specified
transactions in states that screen handgun purchasers--e.g., through
a permit system or some other procedure for conducting criminal
background checks--are exempt from Brady's waiting period. States
that operate an alternative system that meets certain standards have
been designated as Brady-alternative states by ATF. As of February
28, 1995, 24 states had systems in place that ATF determined were
acceptable alternatives to Brady. Residents, dealers, and law
enforcement officials in the other 26 states--the so-called "Brady
states"--are subject to Brady's waiting period requirements (see app.
II).
--------------------
\10 Brady's interim provisions provide that a CLEO "shall make a
reasonable effort" in conducting a background check.
\11 P.L. 90-618, 82 Stat. 1213 (1968).
\12 As discussed further in chapter 2, as of the time of our review,
the Brady form had not been updated to include the "restraining
order" category of prohibited purchasers.
EFFECTIVE IMPLEMENTATION
LARGELY DEPENDS UPON THE
COOPERATION OF LOCAL LAW
ENFORCEMENT OFFICIALS AND GUN
DEALERS
---------------------------------------------------------- Chapter 1:2
To be implemented effectively, Brady depends on the cooperation of
local law enforcement officials and gun dealers. However, Brady
provides no federal funds to local law enforcement agencies to
conduct the background checks, and, according to the Department of
Justice (DOJ), these agencies cannot be penalized for refusing to
conduct them.\13 In addition, several local law enforcement officials
have challenged in court the phase I background check provision. Gun
dealers are heavily relied on to stop prohibited persons from buying
guns, but ATF lacks the resources to inspect all gun dealers to
ensure compliance with Brady. For instance, at a January 1994
congressional hearing, the ATF Director testified that:
"With 285,000 licensees and only 240 ATF inspectors to check
their premises and the records that they keep to ensure
compliance, it would take approximately 10 years for us to
inspect all the gun dealers."\14
More recently, the number of licensed dealers has begun to
decline--to about 220,000\15 by the end of March 1995--partly as a
result of the increase in the license fee required by the Federal
Firearms License Reform Act of 1993.\16 Another contributing factor
is the 1994 Crime Act, which required that gun dealers certify
compliance with state and local law as a condition for a license. On
the other hand, even if ATF had more resources to inspect gun
dealers, there are legislated limits on the frequency of compliance
inspections. For instance, under 18 U.S.C. 923, absent reasonable
cause or a warrant, ATF can inspect or examine a licensed dealer "not
more than once during any 12-month period" to ensure compliance with
record-keeping requirements.\17
Finally, while gun dealers are required to maintain a copy of
completed Brady forms for at least 5 years, the dealers are not
required to report information from the forms to federal authorities.
Brady allows CLEOs to retain forms for individuals denied a purchase
but requires that all other forms be destroyed within 20 days. CLEOs
also are not required to maintain or report data. In fact, various
statutory provisions restrict the use of firearms-related information
and prohibit the establishment of systems to register firearms,
firearms owners, or firearms transactions.\18 Thus, no data were
readily available that would allow for monitoring trends in handgun
purchases and denials or otherwise judge the impact of Brady.
--------------------
\13 On the other hand, millions of dollars in federal grants have
been awarded to states to improve their criminal history records
systems. For example, the Crime Control Act of 1990 required states
to devote a portion of grant funds provided to them under the Omnibus
Crime Control and Safe Streets Act of 1968 to improvement of their
criminal justice records. More recently, additional grant funds for
improving criminal history records systems were made available to
meet the goals of Brady and the National Child Protection Act of
1993.
\14 Gun Violence: Problems and Solutions: Hearings Before the
Committee on the Judiciary, 103d Congress, 2d Sess. 30 (1994).
\15 According to ATF data, about 92,000 federal firearms licenses
were held by gun dealers in the 26 Brady states, as of March 31,
1995.
\16 P.L. 103-159, 107 Stat. 1545 (1993).
\17 Section 923 of title 18 also provides for inspections or
examinations without such reasonable cause or warrant in other
specified situations in connection with a criminal investigation.
\18 ATF appropriations language in the Treasury, Postal Service and
General Government Appropriations Act of 1995 (P.L. 102-329), for
example, prohibits the use of appropriated funds in connection with
consolidating or centralizing, within the Department of the Treasury,
the records of acquisition and disposition of firearms maintained by
federal firearms licensees. In addition, 18 U.S.C. Section 926(a)
provides, in part, that no system of registration of firearms,
firearms owners, or firearms transactions or dispositions be
established.
POLICYMAKERS RECOGNIZE THAT
BRADY MAY NOT KEEP ALL
CRIMINALS FROM OBTAINING
HANDGUNS
---------------------------------------------------------- Chapter 1:3
In July 1995, the Department of Justice issued a report on guns and
crime in the United States.\19 Among other information, the report
noted that:
Over 40 million handguns have been produced in the United States
since 1973. Most guns are not used to commit crimes. Further,
most crime is not committed with guns. However, most gun crime
is committed with handguns.
During 1993, there were 4.4 million murders, rapes, robberies, and
aggravated assaults in the United States, and more than
one-fourth of these violent crimes involved the use of a gun.
From 1985 through 1994, the FBI received an annual average of over
274,000 reports of stolen guns. By definition, all stolen guns
are available to criminals.
At the request of police agencies, ATF's National Tracing Center
will trace firearms back to their original point of sale. More
than three-quarters of the 83,000 guns used in crime that ATF
traced for law enforcement agencies in 1994 were handguns.
Policymakers recognize that even a perfect felon identification
system may not keep felons from obtaining firearms and that Brady may
not directly result in measurable reductions of gun-related crimes.
For example, Brady does not apply to transactions between nonlicensed
individuals. Tens of millions of handguns are already in private
hands. Thus, the apparently sizable numbers of handgun transactions
that take place between private individuals, such as at gun shows and
even "on the street," are not subject to Brady's requirements. In
fact, the purpose of Brady is to prevent convicted felons and other
ineligible persons from purchasing firearms from licensed dealers.
Opponents of Brady point to a 1991 survey of state prison inmates,
which showed that 73 percent of those who had ever possessed a
handgun did not purchase it from a gun dealer.\20 Generally,
opponents contend that it is a mistake to claim Brady prevents
criminals from obtaining handguns since anyone denied a purchase from
a licensed dealer can easily obtain a gun from another source and
will almost certainly do so. Also, denied applicants may have
friends or spouses without a criminal record make the purchases from
dealers for them.
On the other hand, Brady proponents use the same study to counter
that 27 percent of those inmates surveyed obtained their firearms
from licensed gun dealers and argue that no criminals should be able
to buy guns from licensed dealers. Proponents acknowledge that
criminal records checks alone will not prevent felons from obtaining
firearms but could reduce dealer sales to disqualified persons;
complement other crime control measures, such as stiffer mandatory
sentences for firearms offenses; and clamp down on illegal gun
trafficking.\21
--------------------
\19 Department of Justice, Office of Justice Programs, Marianne W.
Zawitz, "Guns Used in Crime", Bureau of Justice Statistics Selected
Findings Number 5 (July 1995, NCJ-148201).
\20 U.S. Department of Justice, Office of Justice Programs, Bureau
of Justice Statistics, Survey of State Prison Inmates, 1991,
NCJ-136949 (Washington, D.C.: Government Printing Office, March
1993).
\21 For a more detailed discussion of firearms regulation issues, see
Office of Technology Assessment, Automated Record Checks of Firearm
Purchasers: Issues and Options, OTA-TCT-497 (Washington, D.C.: U.S.
Government Printing Office, July 1991).
OBJECTIVES, SCOPE, AND
METHODOLOGY
---------------------------------------------------------- Chapter 1:4
Our self-initiated review of the first full year of Brady
implementation was designed to determine the following:
How frequently were the 5-day waiting period and background checks
resulting in criminals and other ineligible individuals being
denied the opportunity to purchase handguns from federally
licensed dealers? (See ch. 2.)
To what extent had handgun purchase denials resulted in federal
follow-up enforcement actions (e.g., arrests and prosecutions)
against convicted felons and other ineligible purchasers who
falsely completed the Brady form? (See ch. 2.)
What were the effects of the various legal challenges to Brady?
For instance, we were particularly interested in whether
background checks of handgun purchasers were being conducted in
those jurisdictions represented by CLEOs who had filed lawsuits
challenging the constitutionality of Brady. If no background
checks were being conducted in certain jurisdictions, we wanted
to determine why and what alternative arrangements were
permissible or practical. (See ch. 3.)
To obtain a broad understanding of these phase I implementation
issues, we contacted a number of relevant governmental and private
organizations. For example, we interviewed ATF headquarters and
district officials responsible for promulgating Brady regulations and
providing training and guidance to CLEOs and federally licensed gun
dealers. We obtained additional national perspectives by contacting
the following industry and special interest organizations: Americans
for Effective Law Enforcement; the Citizens Committee for the Right
to Keep and Bear Arms; the Coalition to Stop Gun Violence; Gun Owners
of America; Handgun Control, Inc.; the International Association of
Chiefs of Police; the Law Enforcement Alliance of America; the
National Rifle Association; and the National Sheriffs' Association.
To obtain information on how frequently the 5-day waiting period and
background checks were resulting in denials, we contacted local law
enforcement agencies in several Brady states. Our results are not
projectable to the universe of denials nationwide. We did not use a
nationally projectable sample because (1) it would have involved
contacting hundreds of law enforcement agencies nationwide, (2) Brady
was less than 1 year old when we began our data gathering, and (3)
Brady did not impose any record-keeping requirements on CLEOs.
We judgmentally selected 20 state and local law enforcement agencies
in 12 (46 percent) of the 26 Brady states. Selection factors--which
are discussed in more detail below--included data availability,
jurisdictional variety, denial rate variety, and geographic
dispersion. In seven of the Brady states we contacted, a state
agency conducted background checks for all jurisdictions within the
state. In the other five Brady states (13 jurisdictions), local
agencies were responsible for the background checks. Also, as noted
in table 1.1, 14 of the 20 agencies we contacted were surveyed
earlier by ATF for Treasury's interim report on Brady's impact.
Table 1.1
State and Local Law Enforcement Agencies
Contacted by GAO
Jurisdiction (state,
county, parish, or
State city) Law enforcement agency
---------------------- ---------------------- ----------------------
Arizona State Department of Public
Safety
Arkansas State State Police
Georgia Clayton County\a Sheriff's Office
Cobb County\a Sheriff's Office
Dekalb County\a Department of Public
Safety
Fulton County\a Sheriff's Department
Kentucky State\a State Police
Louisiana Bossier Parish\a Sheriff's Department
Caddo Parish\a Sheriff's Office
Nevada State Department of Motor
Vehicles and Public
Safety
Ohio State\a Bureau of Criminal
Identification and
Investigation
Pennsylvania Allegheny County\a Sheriff's Office
South Carolina State State Law Enforcement
Division
Texas City of Abilene\a Police Department
City of Fort Worth Police Department
Harris County\a Sheriff's Department
City of Houston\a Police Department
City of Pasadena\a Police Department
Washington City of Seattle\a Police Department
West Virginia State State Police
----------------------------------------------------------------------
\a ATF surveyed these 14 jurisdictions and 2 others (Gwinnett County,
Georgia, and Providence, Rhode Island) as a basis for the Treasury
Department's report, The Brady Law: The First 100 Days (July 27,
1994). We did not include Gwinnett County and Providence in our
survey because those jurisdictions do not maintain cumulative data.
Brady does not require any reports from CLEOs or gun dealers. In
fact, Congress has passed various statutory provisions that restrict
the use of firearms-related information and prohibit the
establishment of systems to register firearms, firearms owners, or
firearms transactions. Thus, no data were readily available for
monitoring national trends in handgun purchases and denials.
Consequently, we relied on the voluntary cooperation and judgment of
selected state and local law enforcement officials to provide data on
the number and results of Brady background checks performed in their
respective jurisdictions. We did not attempt to determine whether
the denials were appropriate. For its initial Brady report, ATF had
already developed cooperative working relationships with 16 CLEOs in
8 states.\22 Thus, after first checking with ATF officials, we
selected 14 of those 16 jurisdictions to build upon the already
established relationships.\23 We did not select Gwinnett County,
Georgia, and Providence, Rhode Island, because those jurisdictions do
not maintain cumulative data. Two of the 16 CLEOs selected by ATF
have statewide (Kentucky and Ohio) responsibilities for performing
background checks of prospective handgun buyers. In addition to
selecting these two states, to provide broader coverage we also
selected the other Brady states that have a centralized agency with
statewide responsibility for performing background checks--Arizona,
Arkansas, Nevada, South Carolina, and West Virginia. Finally,
because press accounts listed the Fort Worth, Texas, Police
Department as having one of the highest handgun denial rates in the
nation, we included that jurisdiction in our review, which resulted
in a total of 20 jurisdictions.
Then, from each of the 20 applicable law enforcement agencies, we
obtained available data on the number of Brady handgun purchase forms
processed and the number denied\24 during the first year of Brady
implementation, February 28, 1994, through February 28, 1995. We
used this information to calculate jurisdiction-specific denial
rates, as well as an overall denial rate for the 20 jurisdictions.
Although we did not verify the accuracy of the data obtained, during
our on-site visits to three jurisdictions--Arkansas; South Carolina;
and Fort Worth, Texas--and in numerous follow-up telephone calls with
the other 17 jurisdictions, we discussed the procedures for gathering
and compiling the data and have no reason to believe the data are
unreliable. However, the denial rates we calculated are not
projectable beyond the jurisdictions covered.
In contacting the law enforcement officials in these jurisdictions,
we also inquired about the availability and completeness of databases
to conduct background checks. Our inquiries included questions
covering criminal history databases, as well as possible data sources
covering drug users, illegal aliens, and other categories of
ineligible purchasers. Regarding criminal history databases, for
example, we were interested in what course of action was taken if the
background search found incomplete records--particularly records
showing a felony arrest but not showing a disposition.
Also, besides quantifying, we were interested in categorizing and
analyzing the various reasons used by law enforcement officials in
the 20 jurisdictions to deny handgun purchases. However, we found
that only 15 of the jurisdictions maintained records (some more
detailed than others) showing reasons for denials. Thus, our
categorization and analysis of denial reasons is limited to these 15
jurisdictions--6 states, 3 counties, 2 parishes, and 4 cities.
Moreover, only four of these jurisdictions--two states, a county, and
a city--had sufficiently detailed information to allow us to quantify
the number of felony-related denials involving violent crime
convictions or indictments.
Regarding follow-up enforcement actions on convicted felons and
others who falsely complete Brady handgun purchase forms, we
interviewed DOJ officials and reviewed documents prepared by DOJ
officials responsible for establishing law enforcement policy
guidance. From DOJ officials, as well as from ATF headquarters
officials, we obtained available information on the number of cases
referred to U.S. Attorneys by ATF field offices, the number declined
for prosecution by U.S. Attorneys, and the number actually
prosecuted by U.S. Attorneys. We then analyzed summary information
provided by ATF on the prosecuted cases. The summary information
covered the nature of the charges, the individuals' past criminal
histories, and any resulting convictions and sentences. For example,
we were interested in whether the defendants were charged only with
lying on the Brady form, or whether form falsification was an
ancillary charge added in with other charges. Similarly, we were
interested in whether the defendants had criminal histories showing
convictions for violent felonies. Finally, we were interested in the
types of sentences received by convicted defendants.
In studying implications of the various legal challenges to Brady, we
first reviewed the applicable federal district court decisions.
Then, to determine the Department of Justice's position on the legal
challenges, we interviewed the Acting Assistant Attorney General, as
well as his Special Counsel.
Also, we interviewed staff from ATF's headquarters and Office of
Chief Counsel as well as ATF officials in field offices encompassing
jurisdictions in which CLEOs have challenged Brady. In so doing, we
obtained information and views on (1) whether background checks have
been or are being performed in those jurisdictions in which CLEOs
have challenged Brady; (2) what ATF's statutory and/or operational
responsibility is with respect to CLEOs and their performance of
Brady background checks; (3) ATF's role with respect to the
designation of alternate CLEOs to perform the Brady background
checks; and (4) what actions, if any, ATF has taken regarding Brady
background checks on prospective handgun buyers in the jurisdictions
involved in the lawsuits.
We conducted our review in Arkansas; Georgia; South Carolina; Texas;
and Washington, D.C., from July 1994 through August 1995 in
accordance with generally accepted government auditing standards.
The Justice Department, as well as Treasury and ATF jointly, provided
written comments on a draft of this report. These comments are
included in appendixes V and IV. We incorporated technical and
clarifying comments in the report where appropriate and discussed the
more substantive comments at the ends of chapters 2 and 3.
--------------------
\22 Department of the Treasury, The Brady Law: The First 100 Days,
July 27, 1994.
\23 At the time we made these selections, ATF officials told us that
they had no further survey or reporting plans with respect to Brady
Act results in these or other jurisdictions. Subsequently, however,
in response to the Clinton administration's request for a 1-year
anniversary assessment of the act, the Treasury Department issued
another report, One-Year Progress Report: Brady Handgun Violence
Prevention Act (February 28, 1995). We discuss that report further
in chapter 2.
\24 We accepted the jurisdictions' criteria for and judgment in
denying applications. We did not attempt to determine whether the
denials were appropriate.
BRADY RESULTS: HANDGUN PURCHASE
DENIALS AND FOLLOW-UP ENFORCEMENT
ACTIONS
============================================================ Chapter 2
To assess Brady's results, we calculated handgun purchase denial
rates and tried to determine if follow-up enforcement actions were
being taken. We and ATF surveyed jurisdictions to determine denial
rates. ATF calculated an average denial rate of 4.7 percent in 16
jurisdictions for the first 3 months of Brady implementation and 3.5
percent in 30 jurisdictions for the first year of Brady. We
calculated an average denial rate of 4.3 percent in 20 jurisdictions
for the first year of Brady. In following up on reasons for denials,
we determined that (1) most of the jurisdictions in our survey relied
only on criminal history records and (2) comprehensive data on
background check results were not available. We were not able to
quantify follow-up enforcement actions due to the way cases were
coded in DOJ's databases, but we were able to determine that as of
July 1995, at least seven Brady-related cases were successfully
prosecuted.
COMPREHENSIVE DATA ON
BACKGROUND CHECK RESULTS WERE
NOT AVAILABLE
---------------------------------------------------------- Chapter 2:1
Comprehensive data on the number of handgun purchase applications and
denials under Brady were not available. Brady contains no reporting
requirements, so neither gun dealers nor law enforcement officers are
required to accumulate and report statistics on the number of handgun
purchase applications processed or denied. In fact, with respect to
the protection of individual privacy rights, Brady contains certain
prohibitions on the use of Brady-related background information as
well as prohibiting the establishment of a registry of firearms,
firearms owners, or firearms transactions.
Under Brady, after approving a handgun sale, the CLEO who conducted
the background check must destroy all purchaser-related information,
including the copy of the handgun purchase application form, ATF Form
5300.35 (see app. I for a copy of the form). Moreover, Brady does
not require either CLEOs or gun dealers to record and report
Brady-related statistics. As a result, the accumulation of data on
the volume of and the reasons for handgun purchase denials is left to
the discretion of the applicable CLEOs. Consequently, attempts to
study the results or impact of Brady are largely dependent upon the
voluntary cooperation of the CLEOs responsible for conducting the
background checks.
To develop a systematic approach for monitoring Brady's impact on the
acquisition and use of firearms, in September 1994 the Justice
Department's Bureau of Justice Statistics (BJS) entered into an
agreement with the Regional Justice Information Service (REJIS).\25
Under the terms of the agreement, REJIS is designing an information
system, called the Firearms Inquiries Statistical System, to
routinely collect data from volunteer samples of the estimated 22,000
local law enforcement officers within the Brady states and from state
criminal history repositories, the FBI, and ATF. The primary
objectives of this information system are to (1) identify, describe,
and categorize the procedures used to implement Brady; (2) measure
results of Brady in terms of the number of applications accepted and
denied, the reasons for the denials, and the actions taken as a
result of the denials; and (3) create a database to permit analyses
of the use of firearms in the commission of crimes. BJS officials
anticipate that initial output under the system will be available in
early 1996.
In the interim, ATF has conducted two limited-scope surveys in
selected Brady states. The results of these surveys, as well as the
results of our similarly limited-scope survey, are discussed in the
following sections.
--------------------
\25 REJIS, located in St. Louis, Missouri, is a quasi-governmental
organization that provides data processing services to criminal
justice agencies.
RESULTS OF TWO ATF SURVEYS OF
SELECTED JURISDICTIONS
---------------------------------------------------------- Chapter 2:2
ATF's initial survey of Brady's results covered approximately the
first 3 months of implementation.\26 In conducting the survey, ATF
contacted state and local law enforcement officers representing 16
jurisdictions--2 states, 7 counties, 2 parishes, and 5 cities.\27 For
handgun purchase applications processed by the respective law
enforcement officers within these 16 jurisdictions, ATF found that
the overall denial rate was 4.7 percent.
The report on ATF's second survey of Brady's results was issued on
the first anniversary of the act's effective date.\28 In conducting
this survey, which provided data covering the period March 1994
through January 1995, ATF contacted law enforcement officers
representing 30 jurisdictions--7 states, 9 counties, 1 parish, 12
cities, and Puerto Rico. As table 2.1 shows, for handgun purchase
applications processed by the respective law enforcement officers
within these 30 jurisdictions, ATF found that the overall denial rate
was 3.5 percent.
Table 2.1
Statistics on Handgun Purchase
Applications Processed and Denied in 30
Jurisdictions Contacted by ATF, March
1994-January 1995
Law
enforcement Denial rate
State Jurisdiction agency Processed Denied (percent)
------------ ------------ ------------ ------------ ------ ----------------
Alabama Jefferson Sheriff's 19,646 964 4.9
County Department
Alaska City of Police 6,960 111 1.6
Anchorage Department
Arizona\a City of Police 28,708 1,718 6.0
Phoenix Department
State Department 32,374 776 2.4
of Public
Safety
Arkansas State State Police 25,434 472 1.9
Georgia Dekalb Department 4,685 680 14.5
County\b of Public
Safety
Kansas Elk County Sheriff's 15 0 0.0
Department
Kentucky State State Police 58,474 2,030 3.5
Louisiana New Orleans Superintende 5,337 607 11.4
Parish nt of Police
Maine City of Police 190 6 3.2
Lewiston Department
Mississippi Rankin Sheriff's 1,150 24 2.1
County Department
Montana Yellowstone Sheriff's 698 12 1.7
County Department
City of Police 1,519 11 0.7
Billings Department
Nevada State Department 33,550 522 1.6
of Motor
Vehicles and
Public
Safety
New Mexico City of Police 5,338 192 3.6
Albuquerque Department
North Rowan County Sheriff's --- --- ---
Carolina\c Department
North Dakota Cass County Sheriff's 735 9 1.2
Department
Ohio State Bureau of 61,074 447 0.7
Criminal
Identificati
on
and
Investigatio
n
Oklahoma City of Police 9,197 165 1.8
Oklahoma Department
City
Pennsylvania City of Police 10,238 487 4.8
Philadelphia Department
Puerto Rico Puerto Rico Superintende 5,390 150 2.8
nt of Police
Rhode Island City of Police 175 10 5.7
Providence\d Department
South State State Law 55,171 2,199 4.0
Carolina Enforcement
Division
South Dakota Minnehaha Sheriff's 236 6 2.5
County Department
Texas Harris Sheriff's 10,139 1,117 11.0
County\e Department
City of Police 32,137 2,442 7.6
Houston\e Department
Vermont City of Police 38 2 5.3
Montpelier Department
Washington City of Police 6,213 154 2.5
Seattle Department
West State State Police 25,712 182 0.7
Virginia
Wyoming City of Police 1,012 11 1.1
Cheyenne Department
================================================================================
Totals 441,545 15,506 3.5
--------------------------------------------------------------------------------
Note: These denial rates are jurisdiction-specific and are not
projectable to other jurisdictions.
\a The data presented are for 4 months only. From February 28, 1994,
through September 30, 1994, Brady background checks in Arizona were
performed by local law enforcement officers. Effective October 1,
1994, the Arizona Department of Public Safety took over
responsibility for performing background checks on all prospective
handgun buyers who reside in Arizona.
\b The data ATF obtained from the Dekalb County Department of Public
Safety come from only one of the Department's three divisions that
process Brady forms.
\c No data were available for Rowan County, North Carolina.
\d The Providence Police Department does not maintain cumulative data
on results of Brady background checks. The data presented are for
the month of January 1995 only.
\e The number of denials for Harris County and the city of Houston
(Texas) do not include handgun purchase applications that were
missent to these jurisdictions.
Source: Department of the Treasury, One-Year Progress Report: Brady
Handgun Violence Prevention Act, February 28, 1995, pages 4-6. Notes
"a" through "e" are GAO's clarifications of ATF's data.
The rates presented in Treasury's One-Year Progress Report do not
reflect the fact that some of the initially denied applications were
subsequently approved, following administrative or other appeal
procedures.\29 For example, the following information about the
number of appealed denials was presented in June 1995 correspondence
from DOJ in response to congressional requesters:
"In its survey, ATF identified 15,506 handgun denials pursuant
to the Brady Law. Of this number, 2,048 rejections were
administratively appealed.\30 Of these, 1,620 were resolved
administratively, but ATF does not have information concerning
the dispositions. ATF reports that two of the 15,506 denials
were successfully appealed in court."
"ATF does not have any information concerning the basis for the
denials or the reasons for any reversals of initial denials. As
you are no doubt aware, under the Brady Law, the responsibility
for determining whether an applicant seeking to purchase a
pistol is eligible to do so rests with local Chief Law
Enforcement Officers (CLEOs). ATF informs us that many CLEOs
maintain no statistical data concerning the specific basis for a
Brady denial and lack the resources for doing so. Accordingly,
ATF has never requested the submission of such information and,
in fact, lacks the authority to require its collection."\31
--------------------
\26 Department of the Treasury, The Brady Law: The First 100 Days,
July 27, 1994.
\27 See table 1.1 in chapter 1 for a listing of the 16 jurisdictions
surveyed by ATF.
\28 Department of the Treasury, One-Year Progress Report: Brady
Handgun Violence Prevention Act, February 28, 1995.
\29 In its One-Year Progress Report, the Treasury Department used
other data and assumptions to arrive at an estimate of total handgun
purchase denials for all Brady states. The report noted that
historical data--from certain states that have their own laws
requiring screening of prospective purchasers of handguns--show that
an overall denial rate of 2.5 percent would be a conservative figure.
Treasury applied this percentage to the total number of
firearms-related queries (1,638,838) made to the FBI's criminal
history database, that is, queries made by state and local law
enforcement authorities during the period March 1994 through January
1995. Thus, for this 11-month period, Treasury estimated that
potential denials in the Brady states totalled 40,971.
\30 If all 2,048 appeals are successful, the overall denial rate for
the 30 jurisdictions surveyed by ATF would be 3 percent rather than
3.5 percent as shown in the Treasury's One-Year Progress Report.
\31 Separately addressed letters (both dated June 21, 1995) to
Senator Phil Gramm and Senator Jon Kyl from DOJ's Office of
Legislative Affairs.
RESULTS OF OUR SURVEY OF 20
SELECTED JURISDICTIONS
---------------------------------------------------------- Chapter 2:3
In conducting our survey to obtain data covering the first full year
of Brady Act implementation, we contacted state and local law
enforcement officers representing 20 jurisdictions--the 7 Brady
states that have centralized background check procedures, 6 counties,
2 parishes, and 5 cities. As table 2.2 shows, for handgun purchase
applications processed by the respective law enforcement officers
within these 20 jurisdictions, we found that the overall denial rate
was 4.3 percent.
Our survey of 20 jurisdictions and ATF's survey of 30 jurisdictions
for its One-Year Progress Report (see table 2.1) include 11
jurisdictions covered in both surveys--the 7 Brady states that have
centralized background check procedures; 2 counties (Dekalb County,
Georgia, and Harris County, Texas); and 2 cities (Houston, Texas, and
Seattle, Washington). Our data differ from ATF data, in part,
because we surveyed a longer period--see, for example, the
differences reported for Arizona and Kentucky. However, for Harris
County and the city of Houston, we also include numerous denials for
applications erroneously sent to these law enforcement agencies;
these denials were not reported by ATF.\32 Finally, the numbers of
denials we report for Arkansas; Dekalb County, Georgia; and Ohio are
lower than ATF's numbers, in part, because our denial data were
adjusted for successful appeals.
Table 2.2
Statistics on Handgun Purchase
Applications Processed and Denied in 20
Jurisdictions Contacted by GAO, February
28, 1994-February 28, 1995
Denial
Law rate
enforcement (percentag
State Jurisdiction agency Processed Denied e)
------------- ------------- ------------- --------------- ------ ----------
Arizona State Department of 40,185 928 2.3
Public
Safety\a
Arkansas State State Police 27,933 377 1.3
Georgia Clayton Sheriff's 2,484 146 5.9
County Office
Cobb County\b Sheriff's 4,298 151 3.5
Office
Dekalb Department of 4,791 409 8.5
County\b Public Safety
Fulton County Sheriff's 5,369 256 4.8
Department
Kentucky State State 69,420 2,045 2.9
Police\c
Louisiana Bossier Sheriff's 1,983 49 2.5
Parish Department
Caddo Parish Sheriff's 5,727 220 3.8
Office
Nevada State Department 38,719 531 1.4
of Motor
Vehicles and
Public Safety
Ohio State Bureau of 67,101 406 0.6
Criminal
Identificatio
n
&
Investigation
Pennsylvania Allegheny Sheriff's 26,005 288 1.1
County\b Office
South State State Law 62,812 1,980 3.2
Carolina Enforcement
Division
Texas City of Police 1,876 18 1.0
Abilene Department
City of Police 8,904 1,288 14.5
Fort Worth Department\d
Harris County Sheriff's 14,514 3,892 26.8
Department
City of Police 34,203 6,322 18.5
Houston Department
City of Police 3,071 112 3.6
Pasadena Department
Washington City of Police 7,048 103 1.5
Seattle\b Department
West Virginia State\b State Police 30,577 219 0.7
================================================================================
Totals 457,020 19,740 4.3
--------------------------------------------------------------------------------
\a Arizona data cover the period October 1994 through February 1995.
\b These jurisdictions do not maintain detailed information on the
reasons for handgun purchase denials.
\c Kentucky data cover the period February 28, 1994, through February
25, 1995.
\d Fort Worth Police Department data cover the period February 28,
1994, through March 3, 1995.
Source: Data provided to GAO by the law enforcement agencies.
Only 15 of the 20 jurisdictions we surveyed maintained records (some
more detailed than others) showing reasons for denials. During the
period covered by our survey (February 28, 1994, through February 28,
1995), the respective law enforcement officers within these 15
jurisdictions conducted background checks involving a total of
384,301 handgun purchase applications and denied 18,570, an overall
denial rate of 4.8 percent. Figure 2.1 shows the denial rates across
the 15 jurisdictions we contacted. Table 2.3 shows the number of
denials by category for each of these 15 jurisdictions.
Figure 2.1: Denial Rates in
the 20 Jurisdictions GAO
Contacted, February 28,
1994-February 28, 1995
(See figure in printed
edition.)
Source: Data provided to GAO by the law enforcement agencies.
Table 2.3
Summary of Handgun Purchase Denial
Statistics for 15 Jurisdictions
Contacted by GAO, February 28, 1994-
February 28, 1995
Other
Jurisdict Crimin Brady 1994
ion al Act Crime Total
(state, histor inelig Act Traffi denials
county, y ible (restrain c Administrat in
parish, record catego ing offens ive jurisdicti
State or city) s ries orders) es or other ons
--------- --------- ------ ------ --------- ------ ----------- ----------
Arizona State 928 0 0 0 0 928
Arkansas State 374 3 0 0 0 377
Georgia Clayton 106 36 1 0 3 146
County
Fulton 256 0 0 0 0 256
County
Kentucky State 1,903 0 142 0 0 2,045
Louisiana Bossier 47 0 0 0 2 49
Parish
Caddo 220 0 0 0 0 220
Parish
Nevada State 467 62 2 0 0 531
Ohio State 376 27 0 0 3 406
South State 1,904 43 0 0 33 1,980
Carolina
Texas City of 11 6 0 0 1 18
Abilene
City of 197 9 0 505 577 1,288
Fort
Worth
Harris 1,238 27 0 0 2,627 3,892
County
City of 905 539 0 908 3,970 6,322
Houston
City of 111 1 0 0 0 112
Pasadena
================================================================================
Total 9,043 753 145 1,413 7,216 18,570
number
by
category
of
denials
================================================================================
Category 48.7% 4.1% 0.8% 7.6% 38.9% 100.1%\a
totals
as
a
percenta
ge of
jurisdic
tion
totals
--------------------------------------------------------------------------------
\a Percentage does not total 100.0 due to rounding.
Source: Summary of data presented in tables III.2 through III.16.
--------------------
\32 According to an ATF official, ATF did not report these missent
forms as denials because the CLEOs they surveyed did not report them
as denials.
DENIALS BASED ON CRIMINAL
HISTORY RECORDS
-------------------------------------------------------- Chapter 2:3.1
Our review of total denials (18,570) for the 15 jurisdictions showed
that 9,043, or 48.7 percent, were based on criminal history records
(see table 2.3). Of the 9,043 criminal history denials, 8,299 (91.8
percent) were for either a felony indictment; a felony arrest (with
no final disposition shown, e.g., dismissal, acquittal, or
conviction); a felony conviction; or an outstanding felony warrant
(see table III.1).
Next, we attempted to determine how many of the felony-related
denials involved violent crimes--aggravated assault, murder, rape,
and robbery--as defined by the FBI. However, only 4 of the 15
jurisdictions had sufficiently detailed information for this
analysis. Table 2.4 provides for these jurisdictions the number of
violent crimes and violent crimes as a percentage of felony-related
denials, total denials, and total applications.
Table 2.4
Violent Crime-Related Denials in Four
Jurisdictions
Number of Felony- Total
violent related Total application
Jurisdiction crimes denials denials s
------------ ------------ ------------ --------------- -----------
Fort Worth, 29 21.0 2.3 0.3
Texas
Harris 133 13.1 3.4 0.9
County,
Texas
Ohio 62 16.5 15.3 0.1
South 147 7.7 7.4 0.2
Carolina
----------------------------------------------------------------------
Source: Developed by GAO on the basis of information provided by the
law enforcement agencies.
Among the 15 jurisdictions, we found differences regarding actions
taken in response to records showing a felony arrest but not showing
a disposition. Law enforcement officers in 4 jurisdictions denied a
total of 365 handgun purchase applications based on records showing a
felony arrest but not showing a disposition (see summary table
III.1). The four jurisdictions are Arkansas (table III.3); Clayton
County, Georgia (table III.4); Nevada (table III.9); and Abilene,
Texas (table III.12). Generally, in such situations, the law
enforcement officials told us it was incumbent upon the applicants to
contact the appropriate law enforcement agency and provide evidence
of a purchase-qualifying resolution of the arrest.
Some of the other jurisdictions do not follow the practice of making
denials on the basis of felony arrest records alone. For example, an
official with the South Carolina State Law Enforcement Division told
us that if a purchase-disqualifying disposition cannot be determined
within 5 business days, the handgun sale is allowed to proceed. The
official added that as of the end of March 1995, the Division had
only one case in which (1) the disposition of a felony charge against
a prospective handgun buyer could not be determined within 5 business
days, (2) the applicant was allowed to purchase a handgun, and (3)
case disposition information subsequently showed that the purchase
should have been denied. Law enforcement officials from the Division
reportedly retrieved the handgun from the purchaser.
Misdemeanor warrants accounted for 452 (2.4 percent) of the 18,570
denials (see table III.1). These 452 denials represent 5.0 percent
of the 9,043 criminal history denials. Of the 15 jurisdictions
providing data on reasons for handgun purchase denials, 7 denied
handgun purchases on the basis of outstanding misdemeanor warrants--4
states (Arizona, Arkansas,\33 Kentucky, and South Carolina); 1 parish
(Bossier Parish, Louisiana); and 2 cities (Fort Worth and Pasadena,
Texas). Three of these 7 jurisdictions accounted for 380 (84.1
percent) of the misdemeanor warrant denials--Arizona had 272 (table
III.2), the city of Fort Worth had 58 (table III.13), and the city of
Pasadena had 50 (table III.16). In each of these jurisdictions, law
enforcement officers told us that while neither state nor local laws
prohibit misdemeanants from purchasing handguns, these persons are
considered fugitives from justice, a prohibited category under Brady.
In commenting on a draft of this report, Treasury and ATF said
"because a person may be a fugitive from justice with respect to a
misdemeanor warrant, it could not be concluded that the person was
erroneously denied a handgun without checking the facts of his or her
case."
--------------------
\33 Effective January 1, 1995, the Arkansas State Police stopped
using misdemeanor warrants as a basis for denying handgun purchases.
DENIALS BASED ON OTHER BRADY
INELIGIBLE CATEGORIES
-------------------------------------------------------- Chapter 2:3.2
Our review of total denials (18,570) for the 15 jurisdictions showed
that 753, or 4.1 percent, were based on the other ineligible
categories under Brady--fugitives from justice, unlawful drug users
or addicts, individuals adjudicated mentally defective or committed,
persons dishonorably discharged from the armed services, illegal
aliens, and individuals who have renounced their U.S. citizenship
(see tables 2.3 and III.1). These ineligible purchasers, sometimes
referred to as the "other-than-felons" categories, are particularly
difficult for CLEOs to identify. In 1990, for instance, a study
sponsored by DOJ reported that few databases contain information on
these categories of individuals.\34
The lack of databases containing information on the other Brady
ineligible categories restricts the ability of law enforcement
officers to identify prospective handgun buyers who fall into one of
these categories. For instance, law enforcement officers in 11 of
the 15 jurisdictions told us that they rely solely on the national
and/or state criminal history databases to obtain information on the
other Brady ineligible categories. According to several officers,
information concerning the other Brady ineligible categories is only
coincidentally included in the criminal history databases. For
example, Arkansas officials made a "mental defective" denial because
criminal history records showed that an individual charged with
battery and criminal property damage had been adjudicated "not guilty
by reason of insanity." Thus, while Brady specifies a number of other
ineligible categories, most law enforcement officers have no way to
check purchasers' backgrounds with respect to these disqualifiers.
In a few instances, information on these categories may be found in
criminal history records. The following sections present more
specifics on these disqualifying categories in the 15 jurisdictions
we analyzed.
--------------------
\34 U.S. Department of Justice, Bureau of Justice Statistics,
Identifying Persons, Other Than Felons, Ineligible to Purchase
Firearms: A Feasibility Study, ENFORTH Corporation (Cambridge,
Massachusetts: May 1990).
FUGITIVES FROM JUSTICE
------------------------------------------------------ Chapter 2:3.2.1
Nonfelon fugitives from justice accounted for 160 (21.2 percent) of
the 753 total denials in the other Brady ineligible categories (see
table III.1). The 160 denials were made in 5 jurisdictions; however,
the city of Houston (Texas) with 57 denials accounted for 35.6
percent of these denials (see table III.15). According to a Houston
Police Department official, when background checks identify a
fugitive, the information is passed on to the Department's Fugitive
Division to first verify that the warrant is still active and, if so,
to serve the warrant. In the other four jurisdictions, officers told
us that it is their respective agency's policy to first confirm that
the warrant is still active and, if it is, either serve it or inform
the originating agency, which is then responsible for any enforcement
action.
UNLAWFUL DRUG USERS OR
ADDICTS
------------------------------------------------------ Chapter 2:3.2.2
Applicants classified as unlawful drug users or addicts accounted for
357 (47.4 percent) of the 753 denials in the other Brady ineligible
categories (see table III.1). All 357 denials were in the Texas
jurisdictions of Abilene (table III.12) and Houston (table III.15).
According to law enforcement officers in these jurisdictions, the
denials for unlawful drug use were based on criminal history records
showing that the prospective buyers had arrests for minor drug
offenses.
ADJUDICATED MENTALLY
DEFECTIVE OR COMMITTED TO
A MENTAL FACILITY
------------------------------------------------------ Chapter 2:3.2.3
Prospective handgun buyers classified as having been adjudicated
mentally defective or committed accounted for 38 (5.0 percent) of the
753 denials in the other Brady ineligible categories (see table
III.1). These 38 denials were made in 8 jurisdictions. The states
of Arkansas and Nevada and the City of Houston, Texas, cumulatively
denied 10 handgun purchases solely on the basis of mental problems
noted in the prospective buyers' criminal history records. Two
counties (Clayton County, Georgia, and Harris County, Texas) denied a
total of 10 handgun purchases on the basis of local court records.
The state of Ohio and the city of Fort Worth, Texas, denied a total
of 13 handgun purchases on the basis of state or county mental health
records. For example, six handgun purchases were denied in Ohio on
the basis of state mental hospital records checks (see table III.10,
note b); and seven purchases were denied by the Fort Worth, Texas,
Police Department on the basis of county mental health center records
(see table III.13, note d). In the remaining jurisdiction, South
Carolina, five denials were the result of relatives of the
prospective handgun buyers contacting the state police and submitting
physicians' statements confirming that the prospective buyers
previously had been committed to a mental institution (see table
III.11, note e).
DISHONORABLE DISCHARGES
FROM THE ARMED FORCES
------------------------------------------------------ Chapter 2:3.2.4
Prospective handgun buyers classified as having been dishonorably
discharged from the U.S. Armed Forces accounted for 49 (6.5 percent)
of the 753 denials in the other Brady ineligible categories (see
table III.1). These 49 denials were made in 6 jurisdictions--3
states (Nevada, Ohio, and South Carolina); 1 county (Harris County,
Texas); and 2 cities (Houston and Pasadena, Texas). In each of these
jurisdictions, law enforcement officers told us that these denials
were based on criminal history records showing arrests for being
absent without leave from the military.
ILLEGAL ALIENS
------------------------------------------------------ Chapter 2:3.2.5
Illegal aliens accounted for 149 (19.8 percent) of the 753 denials in
the other Brady ineligible categories (see table III.1). The 149
denials were made in 6 jurisdictions--2 states (Nevada and South
Carolina); 1 Texas county (Harris County); and 3 Texas cities
(Abilene, Fort Worth, and Houston)--on the basis of searches of
criminal history records. The Houston Police Department accounted
for 112 (75.2 percent) of the 149 denials (see table III.15). Beyond
denying the handgun sales to the illegal aliens, the Houston Police
Department took no other follow-up enforcement or referral action.
The other three Texas jurisdictions followed this same procedure. In
only the two state jurisdictions did law enforcement officers tell us
that they notify the Immigration and Naturalization Service when
illegal aliens are identified.
RENOUNCED U.S.
CITIZENSHIP
------------------------------------------------------ Chapter 2:3.2.6
In the 15 jurisdictions we analyzed, we found no denials based on
renounced U.S. citizenship (see table III.1).
DENIALS BASED ON THE 1994
CRIME ACT
-------------------------------------------------------- Chapter 2:3.3
The Violent Crime Control and Law Enforcement Act of 1994 amended 18
U.S.C. Section 922(g) to add another prohibited category to those
already listed in federal firearms statutes. Generally, the 1994 act
states that it is unlawful for any person to possess or receive any
firearm if that person is subject to a court order that
"restrains such person from harassing, stalking, or threatening
an intimate partner of such person or child of such intimate
partner or person, or engaging in other conduct that would place
an intimate partner in reasonable fear of bodily injury to the
partner or child."
As discussed in chapter 1, Brady's interim provisions require
prospective handgun purchasers to certify that they are not a member
of various categories prohibited from possessing or receiving a
firearm. The categories contained in Brady reflect but do not
reference those categories found at section 922(g) as they existed
before the 1994 Crime Act. Thus, according to ATF's Associate Chief
Counsel (Firearms and Explosives), even though the 1994 Crime Act
amended section 922(g), Brady itself was not amended to add the court
order prohibition. The official told us that ATF had provided the
Department of the Treasury with a list of legislative proposals,
including a proposed technical amendment to Brady.\35 Further, the
Associate Chief Counsel told us that as a practical matter, ATF has
been educating law enforcement officers about the "restraining order"
disqualifying category and that applicants can be denied on this
basis, even though ATF Form 5300.35 (see app. I) is awaiting
modification pending passage of the technical amendment.
In the 15 jurisdictions we analyzed, 145 (0.8 percent) of the 18,570
handgun purchase denials were based on the 1994 Crime Act (see table
2.3 and table III.1). The 145 denials were made in 3
jurisdictions--1 denial in Clayton County, Georgia (table III.4); 142
denials in Kentucky (table III.6); and 2 denials in Nevada (table
III.9). According to an official with the Kentucky State
Police--representing the jurisdiction with 97.9 percent of the
denials in this category--the 142 denials in Kentucky were based on
domestic violence orders, which are similar to restraining orders but
expire (under Kentucky law) after 1 year.
--------------------
\35 As of October 1995, Brady had not been amended to include the
court order prohibition.
DENIALS BASED ON TRAFFIC
OFFENSES
-------------------------------------------------------- Chapter 2:3.4
Traffic offenses accounted for 1,413 (7.6 percent) of the 18,570
denials (see tables 2.3 and III.1). Of the 15 jurisdictions we
analyzed, 2 (both in Texas) accounted for all of the 1,413
traffic-related denials. The Houston Police Department accounted for
908 (64.3 percent) of the denials (see table III.15); and the Fort
Worth Police Department accounted for the remaining 505 denials, or
35.7 percent (see table III.13). In addition to the 1,413 denials in
Houston and Fort Worth, 4 other jurisdictions denied handgun
purchases to prospective handgun buyers who had outstanding
misdemeanor warrants, of which an indeterminable number were for
traffic offenses, according to officials from these jurisdictions.\36
Local law enforcement officials told us that these denials were made
because individuals with outstanding warrants (including warrants
involving traffic offenses) were considered to be fugitives from
justice.
--------------------
\36 These four jurisdictions are Arizona (table III.2, note b);
Arkansas (table III.3, note b); Kentucky (table III.6, note b); and
Bossier Parish, Louisiana (table III.7, note a).
DENIALS BASED ON
ADMINISTRATIVE OR OTHER
REASONS
-------------------------------------------------------- Chapter 2:3.5
Denials based on administrative or other reasons accounted for 7,216
(38.9 percent) of the 18,570 handgun purchase denials in the 15
jurisdictions we analyzed (see table 2.3). These 7,216 denials were
based on a variety of reasons, as table III.1 shows, but the large
majority involved application forms sent to the wrong law enforcement
agency. It is worth noting that these denials are not based on
arbitrary reasons, however, because Brady authorizes only the CLEO of
the place of residence of the purchaser to approve the sale.
Incomplete forms are also to be denied.
Of the 7,216 administrative or other denials, 7,012 (97.2 percent)
were the result of gun dealers sending handgun purchase applications
to the wrong law enforcement agency. Three Texas jurisdictions
accounted for all the denials in this category--the city of Fort
Worth had 434 denials (table III.13); Harris County had 2,608 denials
(table III.14); and the city of Houston had 3,970 denials (table
III.15).
Our review of denial records at the Fort Worth Police Department
indicated that many of the misdirected applications may have resulted
from jurisdictional confusion.\37 For example, we found that the vast
majority of the Fort Worth Police Department's 434 denials in this
category involved individuals with addresses near but not within the
incorporated limits of the city. Although the number of missent
Brady forms might suggest something more than confusion or
carelessness, our analyses did not show any clear patterns, except
that the levels of missent forms remained relatively constant
throughout the year.\38 In June 1995, we shared our Fort Worth
analyses with ATF headquarters and applicable field office officials
who told us that ATF's response to jurisdictional confusion is to
disseminate clarifying information to licensed gun dealers.
--------------------
\37 In Texas, the responsibility for performing Brady background
checks on prospective handgun buyers falls on chiefs of police for
residents of incorporated cities or towns and on county sheriffs for
residents of unincorporated areas.
\38 Officials of the three jurisdictions that experienced these
denials told us in December 1995 that they were still receiving a
significant number of applications that should have been sent to
other CLEOs.
ATF AND DOJ OFFICIALS VIEW
BRADY PRIMARILY AS A MEANS TO
DENY PURCHASES TO CRIMINALS
---------------------------------------------------------- Chapter 2:4
On February 28, 1994--the effective date of Brady--the Assistant
Attorney General (Criminal Division) sent all U.S. Attorneys a
memorandum emphasizing the "new prosecutorial opportunities" created
by the act. Among other matters, this memorandum stated that:
"When a person falsely completes a Brady form and a timely check
determines that the person is ineligible to purchase a handgun,
in the discretion of the prosecutor and police, an effort may be
made to arrest and prosecute the person. This may involve
inviting the person to pick up the handgun and arresting the
person as s/he picks it up or even staking out the dealership at
which the gun is scheduled to be picked up in the case of a
dangerous fugitive. In the case where the handgun is actually
transferred to a prohibited person because the criminal history
data check is untimely, seeking a search and/or arrest warrant
and prosecuting the individual should be considered."
"Federal prosecutors ought to pay particular attention to
intelligence information known to state and local law
enforcement agencies in this regard. When individuals suspected
of other violent and/or drug trafficking conduct are attempting
to purchase handguns and are ineligible to do so, the
investigation and prosecution of such individuals ought to be
regarded as a priority."
In September 1994, at a congressional hearing on the prosecution of
federal gun crimes, the Assistant Attorney General (Criminal
Division) testified that:
"[Before the Brady Act] . . . there was no means by which .
. . falsification [of handgun purchase forms] would routinely
be brought to the attention of at least the U.S. Attorneys.
The Brady bill, now, puts into place, with the help of the ATF
working with their local police officers and law enforcement, a
means by which I think we will start getting more referrals with
respect to false statements on gun applications."\39
In June 1995, DOJ correspondence to congressional requesters pointed
out that reliable statistics on referrals and prosecutions with
respect to such false statements generally were not available and,
indeed, perhaps would not be meaningful even if they were available:
"[S]tatistics maintained by the Department's Executive Office of
United States' Attorneys reflect that, since enactment of the
Brady Law, a total of 162 prosecutions have been initiated in
which the making of a false statement in connection with the
acquisition or attempted acquisition of a firearm (18 U.S.C.
Section 922(a)(6)) was the principal charge. It is not possible
to determine readily the number of these prosecutions that were
initiated as the result of the falsification of statements on
Brady forms, as opposed to the falsification of statements on
other federal firearms acquisition forms.\40 . . . In
addition, this number does not reflect cases in which charges
may have been brought under Section 922(a)(6) as part of a
larger prosecution involving other, possibly more serious
charges, since some of the computer systems in operation in U.S.
Attorneys' offices are able to track only the lead charge. More
detailed information would require a review of the case file in
each of the Section 922(a)(6) prosecutions reported by the
United States Attorneys, a task that would be unduly burdensome
to undertake.
"Such statistics are not a meaningful measure of the
effectiveness of the Brady Law. . . . [T]he statute was not
primarily intended as a prosecutive mechanism but rather as a
means of keeping handguns out of the hands of convicted felons,
fugitives, and other prohibited persons. From an enforcement
perspective, the Brady Law fully serves its purpose when it
succeeds in thwarting the acquisition of a firearm by such
individuals. By that standard, the success of the Brady Law is
reflected by the fact that, since its enactment, approximately
41,000\41 applications for the purchase of handguns have been
denied."\42
In response to our inquiries about referrals and prosecutions issues,
the Acting Assistant Attorney General--who is a senior DOJ official
responsible for monitoring Brady implementation--reinforced the view
that the act was intended primarily to deter or prevent unauthorized
individuals from obtaining handguns from federally licensed firearms
dealers. DOJ has noted that because prosecutions for false
statements on handgun purchase applications are inefficient and
ineffective in advancing this purpose, the number of prosecutions is
not a good measure of Brady's effectiveness or usefulness. In
addition, with regard to the prospect of prosecuting Brady-generated
cases, the Special Counsel to the Acting Assistant Attorney General
stated that no new resources were provided to U.S. Attorney Offices,
which already must make resource allocation decisions to address
competing demands, including the emphasis in recent years on
prosecuting drug kingpins and pursuing other complex, significant
cases.
Similar views were expressed by ATF officials in response to our
inquiries. For instance, the Special Agent in Charge of the Firearms
Enforcement Branch (ATF headquarters) told us that Brady is achieving
its primary purpose of preventing felons from being able to purchase
handguns from gun dealers. However, most U.S. Attorneys do not view
the act as being a prosecutorial tool to use frequently, irrespective
of the volume of referrals and potential cases involving falsified
Brady forms.
In April 1995, ATF headquarters staff queried the agency's field
offices to obtain an estimate of the total number of Brady-related
cases referred by ATF to U.S. Attorneys Offices. The resulting
cumulative estimate was that as of February 1995, a total of 250 such
cases had been referred. Of the 250 referrals, 217 had been declined
for prosecution, according to a DOJ Special Counsel. The DOJ
official added that as of April 1995, the other referrals were still
being evaluated with respect to whether fuller investigations were
merited.
Later, we inquired again about the prosecutive status of the open
referrals. The Special Agent in Charge of ATF's Firearms Enforcement
Branch told us that as of July 1995, at least seven persons
nationally had been successfully prosecuted for making false
statements on the Brady handgun purchase form. This official
provided us the supporting details for these prosecutions, which are
presented in table 2.5.
Table 2.5
Profile of Brady Cases Prosecuted by
U.S. Attorneys, as of July 1995
Previous felony
conviction(s) or
other
disqualifying
basis falsely
Federal judicial certified on the
district Brady form Charge/statute Disposition
------------------ ------------------ ------------------ --------------------
Louisiana
Eastern Possession of 18 U.S.C. section Pled guilty; 18
District crack cocaine 922(a)(6) and months in prison
922(n) and, upon release, 3
years' supervision
Middle Possession of a 18 U.S.C. Pled guilty; 12
District controlled 922(a)(6) months' custody
substance
Rhode Island Delivery of Two counts of Found guilty at
cocaine falsifying the trial; 2 years in
Brady handgun prison, 3 years of
purchase supervised release
application form.
18 U.S.C.
922(a)(6)
West Virginia Assisted New York 18 U.S.C. Pled guilty; 2
Southern residents in 922(a)(6), years' probation
District obtaining false section 2
West Virginia
identification
Resident of New 18 U.S.C. Pled guilty; 6
York state falsely 922(a)(6), months' home
certified West section 2 confinement; 3
Virginia residence years' probation
Resident of New 18 U.S.C. Pled guilty; 2
York state falsely 922(a)(6), section years' probation
certified West 2
Virginia residence
Resident of New 18 U.S.C. Pled guilty; 2
York state falsely 922(a)(6), section years' probation
certified West 2
Virginia residence
--------------------------------------------------------------------------------
Note: According to ATF's Special Agent in Charge, Firearms
Enforcement Branch, U.S. Attorneys were prosecuting (as of July
1995) several additional cases referred by ATF, but no details were
publicly available because judicial action was still pending.
Source: ATF's Firearms Enforcement Branch.
As table 2.5 shows, four federal judicial districts account for the
seven Brady-related prosecutions. None of the prosecutions involved
prospective gun purchasers with previous convictions for violent
offenses. However, three of the cases did involve individuals who
lied on the Brady handgun purchase form about drug-related felony
convictions. Table 2.5 also shows that the subsequent Brady
prosecutions of these individuals resulted in prison or custody
sentences of 12 to 24 months.
The other four cases--related gun-trafficking cases prosecuted within
the Southern District of West Virginia--involved individuals who had
falsified state identification cards and the Brady handgun purchase
form to portray themselves as residents of West Virginia when, in
fact, they were residents of New York. In all four cases, the
defendants pled guilty. Three of the four defendants were sentenced
to 2 years' probation, and the fourth was sentenced to 6 months' home
confinement and 3 years' probation.
--------------------
\39 Prosecution of Federal Gun Crimes: Hearings Before the
Subcommittee on Crime and Criminal Justice of the House Committee on
the Judiciary, 103d Cong., 2d Sess. 51 (1994).
\40 According to an ATF official we contacted, besides the Brady form
(see app. I), the only other federal firearms acquisition form is
ATF Form 4473 ("Firearms Transaction Record"), which has been in use
since the Gun Control Act of 1968.
\41 This figure represents a rounding up of 40,971, which is the
number of potential denials that the Treasury Department estimated in
its One-Year Progress Report (see footnote 29 in this chapter).
\42 Separately addressed letters (both dated June 21, 1995) to
Senator Phil Gramm and Senator Jon Kyl from DOJ's Office of
Legislative Affairs.
CONCLUSIONS
---------------------------------------------------------- Chapter 2:5
No comprehensive, national data existed on handgun purchase
applications and denials for the first year of Brady; however,
limited data from ATF's and our surveys suggested that the denial
rates were around 4 percent in selected jurisdictions analyzed. In
the 15 jurisdictions we analyzed, about half of the denials were to
individuals with felony or misdemeanor criminal histories. Denials
based on the other Brady ineligible categories accounted for only 4.1
percent of the total denials in the 15 jurisdictions. Almost 40
percent of the total denials from our survey were because the gun
dealers sent the Brady forms to the wrong CLEOs. However, all of
these denials occurred in only 3 of the 15 jurisdictions, and it is
unknown whether any of these purchases would have been denied if the
forms had been sent to the proper CLEOs.
Although we were not able to quantify the number of Brady-related
prosecutions, available information suggested that the number is
relatively small nationally. DOJ views Brady as more of a deterrent
than a prosecutive mechanism, and ATF stated that most cases referred
by ATF field offices to U.S. Attorneys have been declined.
AGENCY COMMENTS AND OUR
EVALUATION
---------------------------------------------------------- Chapter 2:6
In its written comments on a draft of this report, DOJ provided
updated information on its efforts to develop databases for
identifying nonfelony classes of ineligible purchasers--fugitives,
unlawful drug users or addicts, individuals adjudicated mentally
defective or committed, persons dishonorably discharged, illegal
aliens, and persons who have renounced U.S. citizenship. Our work
did not specifically address the status of efforts to develop these
databases, which will be important components of the national instant
background check system under the phase II permanent provisions
(effective November 30, 1998) of Brady.
DOJ also provided clarifying information regarding arrests and
prosecutions for falsely completing the handgun purchase application
form. DOJ's view is that Brady's main purpose is to prevent certain
categories of persons from obtaining handguns from federally licensed
gun dealers. Given this main purpose, DOJ said that our report
affords too much attention to evaluating the success of Brady in
generating prosecutions for falsely completing the Brady handgun
purchase form, which is not a good measure of Brady's effectiveness
or usefulness. We agree with DOJ that Brady's main purpose is to
prevent ineligible persons from purchasing handguns from federally
licensed dealers. Most of this chapter--and all of appendix
III--deal with this topic. On the other hand, one objective of our
review was to determine the extent to which handgun purchase denials
had resulted in federal follow-up enforcement actions. In this
regard, we believe the prosecution-related information in our report
is relevant, accurate, and presented in a balanced manner.
Treasury and ATF provided a combined set of comments on the draft.
Treasury stated that it is erroneous to treat Brady forms sent to the
wrong CLEO as denials. We treated them as denials because the CLEOs
in our review treated them as denials. We agree with Treasury that
"simply because the notice was sent to the wrong CLEO does not mean
that the purchaser did not [eventually] receive the handgun."
Treasury also commented that even though certain handgun transactions
are not subject to Brady's provisions, nonetheless the law is an
important first step in reducing illegal transfers to private
individuals.
CHALLENGES TO BRADY: COURT CASES
AND RELATED LEGAL ISSUES
============================================================ Chapter 3
Although there is widespread support for Brady in the law enforcement
community, several legal challenges and the status of federal
authority to penalize or redesignate nonperforming CLEOs have
hampered enforcement of the act in some jurisdictions. Several
sheriffs and a sheriff's association have challenged the
constitutionality of Brady's interim background check provision, and
most won their cases at the federal district court level. However,
one of the three federal appeals courts considering the
constitutionality of Brady has held that the act is constitutional.
DOJ has determined that it lacks the authority to penalize or
redesignate CLEOs who choose not to check backgrounds of handgun
purchasers. DOJ has noted, however, that injunctive relief,\43 for
example, may be an option to compel local law enforcement officials
to fulfill their responsibilities under the act. In two
jurisdictions where CLEOs had not performed presale background
checks, ATF's National Tracing Center data did not show any
crime-related handgun purchases from licensed dealers.
--------------------
\43 Injunctive relief refers to the use of an injunction--a court
order--to compel a party to do or refrain from doing a particular
act.
FEDERAL COURT DECISIONS ARE
MIXED
---------------------------------------------------------- Chapter 3:1
SEVERAL FEDERAL DISTRICT
COURTS HAVE RULED AGAINST
THE BACKGROUND CHECK
PROVISION
-------------------------------------------------------- Chapter 3:1.1
Generally, the law enforcement community has strongly supported
Brady. For example, a leading proponent of the act's provisions is
the International Association of Chiefs of Police. During the
extended debate leading to eventual passage of Brady, the Association
expressed support for a 5-day waiting period to allow law enforcement
officers an opportunity to conduct background checks on all
prospective handgun purchasers.
Despite the generally widespread support of the law enforcement
community, eight sheriffs and one sheriff's association have
initiated court cases challenging the constitutionality of Brady,\44
particularly the phase I provision directing state or local law
enforcement officers to make a reasonable effort to conduct
background checks.\45 The first eight cases are separate filings by
individual sheriffs--each having jurisdictional responsibility for
one county or parish in his respective state--and the ninth and most
recent case was filed by the Wyoming Sheriff's Association.\46
As of July 1995, federal district courts had rendered decisions in
six of the nine cases, and all six cases were on appeal to federal
circuit courts. In five of the six decided cases, the courts have
held Brady's phase I background check provision to be
unconstitutional as a violation of the Tenth Amendment. The first
decision in the several challenges to Brady was Printz v. United
States.\47 In that May 1994 decision, for example, the Federal
District Court for Montana ruled that the phase I background check
provision substantially commandeers state executive officers and
indirectly commandeers the legislative processes of the states to
administer an unfunded federal program. The court observed that the
CLEOs are indirectly required to allocate their resources to
implement Brady instead of using those resources to address problems
important to their constituents. In so ruling, the court rejected
the federal government's argument that the phase I background check
provision was discretionary.
The only federal district court ruling to date to hold that Brady's
phase I background check provision is consistent with the Tenth
Amendment involves the case filed by a county sheriff in Texas (Koog
v. United States).\48 In that case, also decided in May 1994, the
Federal District Court for the Western District of Texas reasoned
that Brady confers great discretion on the CLEO to determine what is
a reasonable background search and that no search may be required if
the circumstances dictate. The court concluded that Brady imposes
only minimal duties on CLEOs.
From the government's perspective, five of the six district court
decisions were adverse rulings in that the phase I background check
provision was deemed unconstitutional; therefore, DOJ has appealed
the decisions. Even in these decisions, however, the courts found
the remainder of Brady's provisions severable and that they,
therefore, remained operative. The Vermont court, for example, noted
that CLEOs could perform background checks if they voluntarily chose
to do so.
--------------------
\44 Generally, the sheriffs alleged, among other things, that the
phase I background check provision of Brady is beyond the scope of
Congress' Commerce Clause powers (U.S. Const. Art. I Section 8.
cl. 3) and is inconsistent with the Tenth Amendment to the U.S.
Constitution. The Commerce Clause gives Congress the exclusive
authority to regulate interstate commerce. The Tenth Amendment
provides that powers not delegated to the federal government are
reserved to the states and to the people.
\45 Although not a party to any of the litigation, the International
Association of Chiefs of Police filed briefs in many of the cases
supporting the Brady Act's provision. Joining the Association in
this support were various other law enforcement groups--the Major
Cities Chiefs of Police, the National Association of Police
Organizations, the Fraternal Order of Police, the Police Foundation,
the Federal Law Enforcement Officers Association, the Police
Executive Research Forum, the National Troopers Coalition, the
National Organization of Black Law Enforcement Executives, and the
International Brotherhood of Police Organizations.
\46 The Wyoming Sheriff's Association has 23 member sheriffs, 1 for
each of the state's 23 counties.
\47 Printz v. United States, 854 F. Supp. 1503 (D. Mont. 1994).
\48 Koog v. United States, 852 F. Supp. 1376 (W.D. Tex. 1994).
INITIAL FEDERAL APPEALS
COURT DECISION UPHOLDS
BRADY'S BACKGROUND CHECK
PROVISION
-------------------------------------------------------- Chapter 3:1.2
In September 1995, the U.S. Court of Appeals for the Ninth Circuit
upheld the constitutionality of Brady, saying the federal government
can require state and local law enforcement agencies to check the
records of prospective handgun buyers.\49 The court reasoned that
Brady's provision that law enforcement agencies "make a reasonable
effort to ascertain" the legality of a handgun purchase is a minimal
burden that the federal government can impose on state and local law
enforcement agencies. The court accordingly reversed the judgments
of the Arizona and Montana district courts, which had held Brady
unconstitutional as a violation of the Tenth Amendment (see table
3.1).\50
Table 3.1
Overview of Court Cases Filed by
Sheriffs Challenging the
Constitutionality of Brady, as of
October 1995
Jurisdictio Case
n of citation or Date Decision
State sherriff file number decided for\a Appeals status
----------- ----------- ----------- ----------- ----------- ---------------
Arizona Graham Mack v. 6-28-94 Sheriff District court
County United decision
States, reversed by the
856 F. U.S. Court of
Supp. 1372 Appeals for the
(D. Ariz. Ninth Circuit
1994 ) (9-8-95).
Louisiana Iberia Romero v. 12-8-94 Sheriff On appeal to
Parish United the U.S. Court
States, of Appeals for
883 F. the Fifth
Supp. 1076 Circuit; stayed
(W.D. La. pending the
1994) Koog and McGee
decisions.
Mississippi Forrest McGee v. 6-3-94 Sheriff Consolidated
County United with Koog and
States, is on appeal to
863 F. the U.S. Court
Supp. 321 of Appeals for
(S.D. Miss. the Fifth
1994) Circuit.
Montana Ravalli Printz v. 5-16-94 Sheriff District court
County United decision
States, reversed by the
854 F. U.S. Court of
Supp. 1503 Appeals for the
(D. Mont. Ninth Circuit
1994) (9-8-95).
New Mexico Otero Lee v. Pending
County United
States,
(CIV. 94-
1132 LH)
(D. NM
1994)
North Alamance Frye v. Pending
Carolina County United
States,
(2:95CV0003
4)
(M.D. NC
1995)
Texas Val Verde Koog v. 5-31-94 U.S. Consolidated
County United with McGee and
States, is on appeal to
852 F. the U.S. Court
Supp. 1376 of Appeals for
(W.D. Tex. the Fifth
1994) Circuit.
Vermont Orange Frank v. 8-2-94 Sheriff On appeal to
County United the U.S. Court
States, of Appeals for
860 F. the Second
Supp. 1030 Circuit.
(D. Vt.
1994)
Wyoming Statewide Wyoming Pending
Sheriff's
Association
v. United
States,
Case No. 95
CV 066
(D. Wy.
1995)
--------------------------------------------------------------------------------
\a This refers specifically to court rulings on the Tenth Amendment
constitutional challenge issue regarding Brady's phase I background
check provision.
Source: Data obtained from ATF's Office of Chief Counsel and from
documentation of the court decisions.
--------------------
\49 Mack v. United States, 1995 U.S. App. LEXIS 25263 (Ninth Cir.
Sept. 8, 1995).
\50 This ruling applies to the Brady states in the Ninth Circuit.
These states are Alaska, Arizona, Montana, Nevada, and Washington.
NO BACKGROUND CHECKS HAD BEEN
CONDUCTED IN TWO JURISDICTIONS
---------------------------------------------------------- Chapter 3:2
At the time of our review, no background checks had been conducted in
two of the nine jurisdictions where the CLEOs had challenged Brady.
However, indications were that background checks had been conducted
in the other seven jurisdictions. The situation regarding each of
these seven jurisdictions was as follows:
While district court decisions were pending in three of the cases,
Brady requirements were still being implemented by the plaintiff
sheriffs in the respective jurisdictions--Otero County, New
Mexico; Alamance County, North Carolina; and the counties in
Wyoming.
Although the sheriff of Forrest County, Mississippi, was relieved
of the requirement to conduct the Brady background checks by the
district court's ruling, he said he continued to perform the
background checks so that eligible purchasers do not have to
wait 5 business days.
Also, as noted above, the sheriff of Val Verde County, Texas, lost
his case in district court and, thus, was still conducting
background checks.
State-level agencies assumed responsibility for conducting
background checks in Graham County, Arizona, and Orange County,
Vermont. Effective October 1, 1994, the Arizona Department of
Public Safety assumed a centralized role in conducting
background checks for all residents of that state. In Vermont,
when the Orange County sheriff refused to conduct background
checks, the Vermont Department of Public Safety voluntarily
assumed this responsibility in July 1994.
On the other hand, even though Brady has been in effect since
February 28, 1994, indications were that no background checks on
handgun purchasers have been conducted in the other two
jurisdictions--Iberia Parish, Louisiana, and Ravalli County, Montana.
The following sections provide more details about the situations in
these two jurisdictions.
IBERIA PARISH, LOUISIANA
-------------------------------------------------------- Chapter 3:2.1
In March 1995, we contacted a Group Supervisor in ATF's New Orleans
Area Office, whose geographic operating responsibilities include
Iberia Parish, Louisiana. According to the ATF Group Supervisor:
After passage of Brady in November 1993, officials from the
Louisiana Attorney General's Office and the Louisiana State
Police met to determine which law enforcement agency or agencies
would be designated to perform background checks of prospective
purchasers of handguns. The Louisiana State Police officials
said their agency was not interested in serving as the CLEO for
implementing Brady Act background checks. Thus, the Attorney
General's Office and the State Police officials agreed that the
sheriff of each parish should serve as CLEO.
Shortly thereafter, the Iberia Parish sheriff told dealers and ATF
that he would not be performing background checks because he had
insufficient resources to do so.
In early 1994, ATF staff visited the sheriff to discuss his
decision not to perform Brady background checks, but the sheriff
still insisted that he had insufficient resources and would not
be performing background checks.
The ATF Group Supervisor told us that ATF had no authority to
designate or require another law enforcement agency to perform the
background checks in Iberia Parish and that as of March 1995, no
agency had volunteered to take on the added responsibility. Later
that month, we spoke with the sheriff of Iberia Parish. He told us
that his office had never conducted any Brady background checks and
that he did not know how many, if any, Brady forms had been received
by his office.
RAVALLI COUNTY, MONTANA
-------------------------------------------------------- Chapter 3:2.2
In February 1995, we contacted an inspector in ATF's Portland Area
Office, whose geographic responsibilities include Ravalli County,
Montana. According to the ATF inspector:
ATF's Portland Area Office is staffed with only eight inspectors
but is responsible for four states, one of which is Montana.
Generally, inspectors spend most of their time on higher
priority efforts and have no time for inspections related to
Brady Act implementation.
Thus, ATF staff do not know whether the Ravalli County sheriff is
conducting (or has ever conducted) any Brady background checks.
In August 1995, we contacted the Sheriff of Ravalli County, and he
told us he had never conducted Brady background checks and had no
plans to do so.
FEDERAL AGENCY AUTHORITY TO
PENALIZE OR REDESIGNATE CLEOS
---------------------------------------------------------- Chapter 3:3
DOJ's Office of Legal Counsel has interpreted Brady's criminal
penalty provisions to be inapplicable to state or local law
enforcement officers in performance of their duties under the act and
that the government, therefore, lacks the authority to prosecute such
officers for violations of the act.\51 A majority of the district
courts considering the issue have either recognized or endorsed such
interpretation. Moreover, responsible ATF and DOJ officials told us
that neither Treasury nor DOJ has authority to redesignate CLEOs in
situations where the initially designated CLEOs fail to perform their
expected duties.
--------------------
\51 DOJ has noted, however, that injunctive relief, for example, may
be an option to compel local law enforcement officials to fulfill
their responsibilities under the act.
APPLICABILITY OF CRIMINAL
PENALTIES TO CLEOS
-------------------------------------------------------- Chapter 3:3.1
Section 102(c) of Brady amends 18 U.S.C. Section 924(a) by providing
that whoever knowingly violates the act's requirements for presale
background checks shall be fined not more than $1,000, imprisoned for
not more than 1 year, or both. In March 1994, after analyzing the
application of these penalties to state and local law enforcement
officials, DOJ's Office of Legal Counsel concluded that:
"The history of the Act indicates that Congress did not envision
its criminal sanctions applying to CLEOs.
"This reasoning is reinforced by the great solicitude paid to
law enforcement officials in other provisions of the Act. It
would be incongruous to insulate the CLEO against liability for
damages . . . for providing erroneous information that
prevents a sale and then turn around and subject him or her to
criminal fine or imprisonment for failure to perform ministerial
acts. Our conclusion is further supported by the
impracticality, if not impossibility, of prosecuting a chief law
enforcement officer for failing to make a `reasonable effort.'
The use of the term `reasonable effort' reflects Congress'
apparent intent to vest discretion in CLEOs by providing a
flexible statutory requirement. This elasticity, though common
in civil statutes, is unusual in criminal laws because it does
not clearly define a punishable act. It would be difficult to
prosecute a CLEO for failing to make a `reasonable effort', and
such prosecution could be subject to a Fifth Amendment due
process challenge. In light of the fact that applying criminal
penalties to the `reasonable effort' requirement would be both
unusual and arguably unconstitutional, we find it difficult to
believe that Congress intended the `reasonable effort' to be
criminally enforceable."\52
In summary, DOJ's Office of Legal Counsel concluded that 18 U.S.C.
Section 924(a)(5) does not apply to state officials, and the U.S.
government, therefore, lacks the authority to prosecute state or
local law enforcement officials for not conducting Brady background
checks. This position has been recognized and endorsed by several of
the district court decisions discussed above. For example, in
determining the Forrest County, Mississippi, sheriff's standing to
sue, the federal district court noted that it believed the Department
of Justice "is correct in its interpretation" of Brady's penalty
provisions.\53
DOJ has noted, however, that injunctive relief may be an option. At
the time of our review, DOJ had not sought injunctive relief.
--------------------
\52 Memorandum (dated March 16, 1994) from DOJ's Office of Legal
Counsel to Attorney General Janet Reno, subject: "Application of the
Criminal Penalties in the Brady Act to State or Local Law Enforcement
Officers."
\53 McGee v. United States, 863 F. Supp. 321 at 324 (S.D. Miss.
1994). More recently, the U.S. Court of Appeals for the Ninth
Circuit vacated, as unripe for judicial review, both the District
Court of Arizona ruling that the criminal provisions apply to CLEOs
and are void for vagueness, as well as the District Court of Montana
ruling that the criminal provisions do not apply to CLEOs. The Court
of Appeals noted that the plaintiffs in both cases had not been
charged under Brady and that such charges against them were unlikely
in view of DOJ's official position that the criminal sanctions of
Brady do not apply to CLEOs. Mack v. United States, 1995 U.S. App.
LEXIS 25263 at 9-10 (Ninth Cir. Sept. 8, 1995).
NO SPECIFIC AUTHORITY TO
REDESIGNATE CLEOS
-------------------------------------------------------- Chapter 3:3.2
Under Brady, ATF has no specific authority to designate alternate
CLEOs for conducting background checks. In our follow-up inquiries
at ATF and DOJ headquarters, responsible officials told us that
neither Treasury nor DOJ has authority to redesignate CLEOs when the
initially designated CLEOs choose not to perform background checks.
Moreover, even regarding the initial designations of CLEOs for
purposes of Brady, federal agencies had no statutory authority and
also played no substantive role in the process, except for
disseminating guidance and encouraging cooperation in implementing
the new law. Rather, state and local officials were expected to
determine who would be designated as CLEOs for purposes of conducting
presale background checks.
THE EFFECTS OF NOT CONDUCTING
BACKGROUND CHECKS ARE UNKNOWN
---------------------------------------------------------- Chapter 3:4
We tried to determine whether there have been any negative effects
resulting from the absence of presale background checks of handgun
purchasers residing in the two jurisdictions discussed above--Iberia
Parish, Louisiana, and Ravalli County, Montana. We wanted to
determine, for example, whether any gun-related crimes had been
committed--with a handgun purchased on or after February 28, 1994
(the effective date of Brady)--by any resident of these jurisdictions
and, if so, whether the purchaser had a criminal history or other
disqualifier identifiable by a routine background check.
In response to our suggestion, ATF's National Tracing Center
performed a computerized search of tracing requests received from law
enforcement agencies. The search was designed to determine if any of
the tracing requests involved crime scene handguns that had been
purchased in either of the two jurisdictions after Brady's effective
date. In structuring the computerized search, the National Tracing
Center focused on all federally licensed dealers with postal address
ZIP codes applicable to the two jurisdictions.
As of July 25, 1995, the Center's search revealed that a total of
seven crime-tainted handguns had been purchased from dealers within
the two jurisdictions. Six of the handguns had been purchased in
Iberia Parish and one in Ravalli County. However, all seven
purchases were made before Brady went into effect on February 28,
1994. Thus, this search of tracing requests did not specifically
identify any crime-related effects stemming from the lack of
background checks in the two jurisdictions.
On the other hand, since no background checks had been conducted in
these two jurisdictions there is no assurance that ineligible persons
did not purchase handguns from licensed dealers. Moreover, the
Tracing Center's search covered only one jurisdiction in each state.
Thus, the search did not cover the possibility that residents of one
county or parish may have purchased handguns in another county or
parish in their state.
CONCLUSIONS
---------------------------------------------------------- Chapter 3:5
The effects of the legal challenges to Brady are not entirely clear
because the cases are being appealed. The federal district courts
have ruled in five of six cases decided as of July 1995 that CLEOs
cannot be required to perform background checks. However, the
decisions found the remainder of Brady's provisions severable and
that they, therefore, remained operative.
In September 1995, the U.S. Court of Appeals for the Ninth Circuit
upheld the constitutionality of Brady, reversing the judgments of the
Arizona and Montana district courts. The appeals court reasoned that
the phase I background check provision is a minimal burden that the
federal government can impose on state and local law enforcement
agencies
Background checks were being conducted in seven of the nine
jurisdictions where CLEOs had challenged Brady. In the other two
jurisdictions, no checks were being conducted. We did not determine
whether this lack of background checks resulted in handgun purchases
by ineligible individuals.
AGENCY COMMENTS AND OUR
EVALUATION
---------------------------------------------------------- Chapter 3:6
In its written comments, DOJ said the fact that local law enforcement
officials are not subject to criminal prosecution does not mean there
is no way to compel them to fulfill their responsibilities under
Brady. DOJ commented that injunctive relief may be an option. We
have added this point to our discussion.
In their combined written comments, Treasury and ATF suggested that
we add language indicating that the federal district court decisions
were limited to the plaintiff sheriffs only and that other CLEOs in
surrounding jurisdictions were still subject to Brady's phase I
background check provision. While the McGee and Romero district
court decisions were limited to the plaintiff sheriffs, the Mack,
Printz, and Frank district court decisions did not contain such a
limitation. For example, the Frank decision enjoined "the United
States from enforcing that provision in the District of Vermont," the
Mack decision ordered "that defendant United States of America and
its agents are permanently enjoined from further enforcing 18 U.S.C.
� 922(s)(2)," and the Printz decision enjoined "the United States
from enforcing said provision."
Also, Treasury and ATF commented that the number of jurisdictions
affected by the legal challenges to Brady is very small compared to
overall enforcement of the act. Further, we and the agencies pointed
out that the federal appeals court decision overturned two of the
five district court decisions against Brady, and the appeals were
pending in the remaining three cases as of October 1995.
(See figure in printed edition.)Appendix I
BRADY HANDGUN PURCHASE FORM
============================================================ Chapter 3
(See figure in printed edition.)
(See figure in printed edition.)
DESIGNATION OF "BRADY" AND
"BRADY-ALTERNATIVE" STATES
========================================================== Appendix II
Essentially, Brady requires that federally licensed dealers who sell
handguns must comply with either
a 5-day waiting period to facilitate background checks or
an applicable state's system that meets requisite standards for
screening backgrounds and denying ineligible purchasers.
States in which gun dealers must comply with the 5-day waiting period
have been designated by ATF as "Brady" states. States that operate
an alternative system that meets certain standards have been
designated "Brady-alternative" states by ATF. As of February 28,
1995, 26 states were categorized as Brady states, and the other 24
states were categorized as Brady-alternative states (see fig. II.1).
Figure II.1: Brady and
Brady-Alternative States, as of
February 28, 1995
(See figure in printed
edition.)
Source: ATF.
Each Brady-alternative state is so designated by ATF because the
state has an "alternative" system to the federal 5-day waiting
period.\1 Generally, the alternative system is either (1) a permit or
other preapproval system or (2) a point-of-sale or instant check
system. Under either alternative, state law must require that an
authorized official verify that the "information available" to such
official does not indicate that the prospective purchaser's
possession of the handgun would violate the law.
According to ATF officials, the same minimum standard for background
checks applies to both Brady and Brady-alternative states. That is,
at a minimum, a check of criminal history records is required to
screen out all convicted felons. In applying this minimum standard,
ATF recognizes that:
"Certain State laws may enumerate the records to be searched, or
require that the State official conduct `such investigation' as
is deemed necessary to determine the person's eligibility to
possess a handgun. In some cases, this may encompass a check of
State criminal histories only. . . . [A]t a minimum, the
States must be able to conduct a criminal records check of those
systems of records available to the State. Thus, if these
systems only contain information indicating felony convictions,
such a check would be sufficient to fall within the permit or
instant check exception."\2
The presence of an alternative background check system is a necessary
but not a singly sufficient criterion for a state being designated a
Brady-alternative state. Regardless of the "permit" or the "instant
check" labels, if a state's statutory scheme does not disqualify all
convicted felons, ATF will not designate the jurisdiction as being a
Brady-alternative state. An example is South Carolina, which has an
instant check system but is still categorized as a Brady state
because only violent felons are precluded (under South Carolina law)
from possessing handguns.
Nonetheless, as of May 1995, no state had contested ATF's decisions
on Brady and Brady-alternative designations, according to agency
officials. Moreover, during our review, we saw indications that ATF
has demonstrated a willingness to work with officials in those Brady
states interested in making the legislative changes needed to achieve
Brady-alternative status. At applicable times, for example, ATF
Assistant Chief Counsels have worked with officials from requesting
states to review whether the respective state's proposed legislative
changes would meet Brady-alternative criteria. In fact, six states
originally categorized as Brady states have subsequently met
alternative requirements--Colorado, Idaho, Minnesota, New Hampshire,
Tennessee, and Utah.
--------------------
\1 At the time of the effective date (February 28, 1994) of Brady, 32
states were categorized as Brady states, and the other 18 states were
categorized as Brady-alternative states.
\2 ATF document (undated), "Rationale under the Brady Law for
Categorization of States as Subject to the Federal 5-Day Waiting
Period Requirement for Handgun Sales or Having Alternative Systems to
the Waiting Period Requirements."
GAO ANALYSIS OF HANDGUN PURCHASE
DENIAL STATISTICS IN SELECTED
JURISDICTIONS
========================================================= Appendix III
As discussed in chapter 1, we judgmentally selected 20 jurisdictions
(see table 1.1) to contact for the purpose of developing and
analyzing handgun purchase application and denial statistics covering
approximately the first year of Brady Act implementation--February
28, 1994, through February 28, 1995. We found that the availability
and specificity of records with respect to reasons for denials varied
by jurisdiction.
Moreover, we found that only 15 of the jurisdictions maintained
records (some more detailed than others) showing reasons for denials
(see table 2.3). For each of these 15 jurisdictions, table III.1
presents a summary of the statistics for denials, and tables III.2
through III.16 provide supporting details.
It should be emphasized that the state and local law enforcement
officers have no statutory obligation to maintain or report denial
statistics and, accordingly, there is no standardized format mandated
for accumulating such data. Nonetheless, to the extent possible, we
tried to use a common format to present the data tables in this
appendix. In doing so, however, we did not substantively
recategorize or otherwise "second guess" the denial reasons recorded
in the respective state or local agency's files, even though some
files (the usual case) gave only broad generic reasons (e.g., felony
conviction) and other files were much more specific, with dozens of
separately categorized reasons.
Table III.1
Summary Statistics of Handgun Purchase
Denials for 15 Jurisdictions
Of total
denied
Of applicatio
Category/reason Number category ns
------------------------------ ---------------- -------- ----------
Criminal history records
Total felonies 8,299 91.8 44.7
Felony indictments 103 0.6
Felony arrests (no disposition 365 2.0
shown)
Felony convictions 1,663 9.0
Felony warrants 77 0.4
Other felony-related denials 6,091\a 32.8
Misdemeanor warrants 452 5.0 2.4
Other criminal offenses 292 3.2 1.6
======================================================================
Total 9,043 100.0 48.7
Other Brady ineligible
categories
Fugitives from justice 160 21.2 0.9
Unlawful drug users or addicts 357 47.4 1.9
Adjudicated mentally 38 5.0 0.2
defective
or committed
Dishonorable discharge from 49 6.5 0.3
Armed Forces
Illegal aliens 149 19.8 0.8
Renounced U.S. citizenship 0 0.0 0.0
======================================================================
Total 753 99.9 4.1
1994 Crime Act
Restraining order (harassing, 145 100.0 0.8
stalking, or threatening)
Traffic offenses
Traffic offense warrants 1,413 100.0 7.6
Administrative or other
Dealer transmitted Brady form 7,012 97.2 37.8
to wrong law enforcement
agency
Part A of Brady form 36 0.5 0.2
incomplete/inaccurate
Part B of Brady form 88 1.2 0.5
incomplete/inaccurate
Brady form incomplete (part 14 0.2 0.1
not
specified or illegible
Violation of state law 33 0.5 0.2
Applicant presented 21 0.3 0.1
questionable or invalid
identification
Form delivered by regular 9 0.0 0.0
instead of registered mail
Applicant under legal age to 2 0.0 0.0
purchase handgun
Copy of Brady form not 1 0.0 0.0
transmitted to law
enforcement
agency within 1 day
======================================================================
Total 7,216 99.9 38.9
======================================================================
Grand total 18,570\b 100.1\c
----------------------------------------------------------------------
\a Denial of these 6,091 applications was for felony-related reasons
and involved 5 of the 15 jurisdictions we analyzed--Kentucky; Ohio;
South Carolina; Harris County, Texas; and Houston, Texas. In these
jurisdictions, the records available for our review did not specify
the status (e.g., indictment, arrest, or conviction) of the felony
offenses.
\b The total number of denials (18,570) represents 4.8 percent of the
total (384,301) handgun purchase applications processed by the 15
jurisdictions through February 28, 1995.
\c This percentage does not add to 100 percent because of rounding.
Source: GAO analysis of data from the 15 jurisdictions.
Table III.2
Handgun Purchase Denial Statistics for
the State of Arizona, October 1, 1994-
February 28, 1995
Percen
t
of
Category/reason Number total
------------------------------------------------------ ------ ------
Criminal history records
Total felonies 656 70.7
Felony convictions 619 66.7
Felony warrants 37\a 4.0
Misdemeanor warrants 272\b 29.3
======================================================================
Total 928 100.0
Other Brady ineligible categories 0 0
1994 Crime Act 0 0
Traffic offenses 0 0
Administrative or other 0 0
======================================================================
Grand total 928\c 100.0
----------------------------------------------------------------------
Note: The Arizona Department of Public Safety began performing Brady
background checks on October 1, 1994. Prior to that time, background
checks were performed by local law enforcement officers.
\a When an applicant's criminal history record includes an
outstanding felony warrant, the Department's policy is to confirm the
active status of the warrant, and if it is still active, to forward
it to the Department's Fugitive Detail Unit, which is responsible for
serving the warrant.
\b Denial of these 272 applications was based on the existence of
outstanding misdemeanor warrants. According to a Department
spokesperson, these misdemeanor warrants were issued for offenses
ranging from bad checks and theft to fraud and traffic violations.
The spokesperson told us that there is no state or local handgun law
prohibiting persons from purchasing a handgun if they have been found
guilty of a misdemeanor offense; however, the Department considers
such individuals to be fugitives from justice if their criminal
history records include any outstanding warrants.
\c The number of denials (928) represents 2.3 percent of the total
(40,185) handgun purchase applications processed by the Arizona
Department of Public Safety through February 28, 1995.
Source: Arizona Department of Public Safety.
Table III.3
Handgun Purchase Denial Statistics for
the State of Arkansas, February 28,
1994-February 28, 1995
Percent
Category/reasons Number of total
---------------------- ---------------------- ----------------------
Criminal history
records
Total felonies 332 88.1
Felony arrests (no 143 37.9
disposition shown)
Felony convictions 180 47.7
Felony warrants 9\a 2.4
Misdemeanor warrants 42\b 11.1
======================================================================
Total 374 99.2
Other Brady ineligible
categories
Adjudicated mentally 3\c 0.8
defective or
committed
1994 Crime Act 0 0
Traffic offenses 0 0
Administrative or 0 0
other
======================================================================
Grand total 377\d 100.0
----------------------------------------------------------------------
\a When an applicant's criminal history record includes an
outstanding felony warrant, the Arkansas State Police's policy is to
contact and provide the originating agency with the pertinent
information.
\b Denial of these 42 applications was based on the existence of
outstanding misdemeanor warrants. According to a State Police
spokesperson, these misdemeanor warrants were issued for offenses
ranging from hot checks to theft to traffic violations. As of
January 1, 1995, however, the State Police no longer denies handgun
purchases based on outstanding misdemeanor warrants. Reportedly, the
State Police made this change after consulting ATF officials, who
opined that such denials were contrary to the intent of Brady.
\c The State Police spokesperson told us that denial of these three
applications was based upon criminal history records showing (1) a
verdict of not guilty by reason of insanity or (2) a commitment to a
mental institution.
\d The number of denials (377) represents 1.3 percent of the total
(27,933) handgun purchase applications processed by the Arkansas
State Police through February 28, 1995.
Source: Arkansas State Police.
Table III.4
Handgun Purchase Denial Statistics for
Clayton County, Georgia, February 28,
1994-February 28, 1995
Percen
t
of
Category/reasons Number total
------------------------------------------------------ ------ ------
Criminal history records
Total felonies 106 72.6
Felony arrests (no disposition shown) 65 44.5
Felony convictions 41 28.1
======================================================================
Total 106 72.6
Other Brady ineligible categories
Fugitives from justice 27\a 18.5
Adjudicated mentally defective or committed 9\b 6.2
======================================================================
Total 36 24.7
1994 Crime Act
Restraining order (harassing, stalking, or 1 0.7
threatening)
Traffic offenses 0 0
Administrative or other
Applicant presented questionable identification 3 2.1
======================================================================
Grand total 146\c 100.0
----------------------------------------------------------------------
\a When an applicant's criminal history record shows the applicant is
a fugitive from justice and the applicant resides in Clayton County,
the Sheriff's policy is to arrest the individual. However, if an
applicant's criminal history record shows the applicant is a fugitive
from justice but the applicant does not reside in Clayton County, the
Office's policy is to contact and provide the originating agency with
the pertinent information.
\b According to a spokesperson for the Sheriff, denial of these nine
applications was based on probate court records or other official
records involving the commitment of individuals to a mental
institution.
\c The number of denials (146) represents 5.9 percent of the total
(2,484) handgun purchase applications processed by the Clayton County
Sheriff's Office through February 28, 1995.
Source: Clayton County, Georgia, Sheriff's Office.
Table III.5
Handgun Purchase Denial Statistics for
Fulton County, Georgia, February 28,
1994-February 28, 1995
Percen
t
of
Category/reasons Number total
------------------------------------------------------ ------ ------
Criminal history records
Total felonies 256 100.0
Felony convictions 230 89.8
Felony warrants 26\a 10.2
======================================================================
Total 256 100.0
Other Brady ineligible categories 0 0
1994 Crime Act 0 0
Traffic offenses 0 0
Administrative or other 0 0
======================================================================
Grand total 256\b 100.0
----------------------------------------------------------------------
\a When an applicant's criminal history record includes an
outstanding felony warrant, the Fulton County Sheriff's policy is to
arrest the applicant if (1) the individual is a resident of the state
of Georgia or (2) the individual is not a Georgia resident but the
originating agency is willing to extradite the individual for trial.
However, if the applicant is a not a Georgia resident and the
originating agency is unwilling to extradite the individual for
trial, the Sheriff's Department will deny the handgun but take no
further enforcement action.
\b The number of denials (256) represents 4.8 percent of the total
(5,369) handgun purchase applications processed by the Fulton County
Sheriff's Department through February 28, 1995.
Source: Fulton County, Georgia, Sheriff's Department.
Table III.6
Handgun Purchase Denial Statistics for
the State of Kentucky, February 28,
1994-February 25, 1995
Percent
Category/reasons Number of total
---------------------- ---------------------- ----------------------
Criminal history
records
Total felonies 1,895\a 92.7
Misdemeanor warrants 8\b 0.4
======================================================================
Total 1,903 93.1
Other Brady ineligible 0 0
categories
1994 Crime Act
Restraining order 142\c 6.9
(harassing, stalking,
or threatening)
Traffic offenses 0 0
Administrative or 0 0
other
======================================================================
Grand total 2,045\d 100.0
----------------------------------------------------------------------
\a Of these 1,895 denials, 13 were based on outstanding felony
warrants. When an applicant's criminal history record includes an
outstanding felony warrant, the Kentucky State Police's policy is to
contact and provide the originating agency with the pertinent
information. Denial of the other 1,882 applications was also for
felony-related reasons; however, the State Police's records available
for our review did not specify the status (e.g., indictment, arrest,
or conviction) of the offenses.
\b Denial of these eight applications was based on the existence of
outstanding misdemeanor warrants. According to a State Police
spokesperson, these misdemeanor warrants were issued for offenses
ranging from making threats to disorderly conduct to traffic
violations. The spokesperson told us that there is no state or local
law prohibiting persons from purchasing a handgun if they have been
found guilty of a misdemeanor offense; however, the State Police
considers such individuals to be fugitives from justice if their
criminal history records include any outstanding warrants.
\c The State Police spokesperson also told us that denial of these
142 applications was based on the existence of domestic violence
orders, which are similar to restraining orders but expire (under
Kentucky law) after 1 year.
\d The number of denials (2,045) represents 2.9 percent of the total
(69,420) handgun purchase applications processed by the Kentucky
State Police through February 25, 1995.
Source: Kentucky State Police.
Table III.7
Handgun Purchase Denial Statistics for
Bossier Parish, Louisiana, February 28,
1994-February 28, 1995
Percent
Category/reasons Number of total
---------------------- ---------------------- ----------------------
Criminal history
records
Total felonies 26 53.1
Felony convictions 26 53.1
Misdemeanor warrants 21\a 42.9
======================================================================
Total 47 95.9
Other Brady ineligible 0 0
categories
1994 Crime Act 0 0
Traffic offenses 0 0
Administrative or
other
Applicant under legal 2 4.1
age to purchase
handgun
======================================================================
Grand total 49\b 100.0
----------------------------------------------------------------------
\a Denial of these 21 applications was based upon the existence of
outstanding misdemeanor warrants. According to a Bossier Parish
Sheriff's spokesperson, the misdemeanor offenses for which these
warrants were issued ranged from disturbing the peace to traffic
tickets. The Department spokesperson told us that there is no state
or local law prohibiting persons from purchasing a handgun if they
have been found guilty of a misdemeanor offense; however, the
Department considers such individuals to be fugitives from justice if
their criminal history records include any outstanding warrants.
\b The number of denials (49) represents 2.5 percent of the total
(1,983) handgun purchase applications processed by the Bossier Parish
Sheriff's Department through February 28, 1995.
Source: Bossier Parish, Louisiana, Sheriff's Department.
Table III.8
Handgun Purchase Denial Statistics for
Caddo Parish, Louisiana, February 28,
1994-February 28, 1995
Percen
t
of
Category/reasons Number total
------------------------------------------------------ ------ ------
Criminal history records
Total felonies 155 70.5
Felony convictions 155 70.5
Other criminal offenses 65\a 29.5
======================================================================
Total 220 100.0
Other Brady ineligible categories 0 0
1994 Crime Act 0 0
Traffic offenses 0 0
Administrative or other 0 0
======================================================================
Grand total 220\b 100.0
----------------------------------------------------------------------
\a Denial of these 65 applications was based on the existence of
outstanding warrants; however, the Caddo Parish Sheriff's records
available for our review did not specify the type (e.g., felony or
misdemeanor) of criminal offense involved. According to a
spokesperson for the Sheriff, there is no state or local law
prohibiting persons from purchasing a handgun if they have been found
guilty of a misdemeanor offense; however, the Sheriff's Office
considers such individuals to be fugitives from justice if their
criminal history records include any outstanding warrants.
\b The number of denials (220) represents 3.8 percent of the total
(5,727) handgun purchase applications processed by the Caddo Parish
Sheriff's Office through February 28, 1995.
Source: Caddo Parish, Louisiana, Sheriff's Office.
Table III.9
Handgun Purchase Denial Statistics for
the State of Nevada, February 28, 1994-
February 28, 1995
Percent
Category/reasons Number of total
---------------------- ---------------------- ----------------------
Criminal history
records
Total felonies 467 87.9
Felony indictments 80 15.1
Felony arrests (no 155 29.2
disposition shown)
Felony convictions 232 43.7
======================================================================
Total 467 87.9
Other Brady ineligible
categories
Fugitives from justice 47\a 8.9
Adjudicated mentally 1\b 0.2
defective or
committed
Dishonorable discharge 4\c 0.8
from Armed Forces
Illegal aliens 10\d 1.9
======================================================================
Total 62 11.7
1994 Crime Act
Restraining order 2 0.4
(harassing, stalking,
or threatening)
Traffic offenses 0 0
Administrative or 0 0
other
======================================================================
Grand total 531\e 100.0
----------------------------------------------------------------------
\a When an applicant's criminal history record shows the applicant is
a fugitive from justice, the Nevada Department of Motor Vehicles and
Public Safety's policy is to contact and provide the originating
agency the pertinent information.
\b According to a Department spokesperson, denial of this one
application was based on a criminal record showing the results of a
mental competency adjudication.
\c The Department spokesperson told us that denial of these four
applications was based on criminal history records showing arrests
for being absent without leave from the military.
\d The Department spokesperson also told us that the denial of these
10 applications was based on criminal history records showing arrest
and deportation hearings, which show the applicants were not legally
residing in the United States. In such cases, the Department
contacts and provides the Immigration and Naturalization Service with
the pertinent information.
\e The number of denials (531) represents 1.4 percent of the total
(38,719) handgun purchase applications processed by the Nevada
Department of Motor Vehicles and Public Safety through February 28,
1995.
Source: Nevada Department of Motor Vehicles and Public Safety.
Table III.10
Handgun Purchase Denial Statistics for
the State of Ohio, February 28, 1994-
February 28, 1995
Percent
Category/reasons Number of total
---------------------- ---------------------- ----------------------
Criminal history
records
Total felonies 376\a 92.6
Other Brady ineligible
categories
Adjudicated mentally 6\b 1.5
defective or
committed
Dishonorable discharge 21\c 5.2
from Armed Forces
======================================================================
Total 27 6.7
1994 Crime Act 0 0
Traffic offenses 0 0
Administrative or
other
Brady form incomplete/ 3 0.7
inaccurate
======================================================================
Grand total 406\d 100.0
----------------------------------------------------------------------
\a Denial of these 376 applications was for felony-related reasons;
however, the Ohio Bureau of Criminal Identification and
Investigations' records available for our review did not specify the
status (e.g., indictment, arrest, or conviction) of the offense.
\b According to a Bureau spokesperson, the denial of these six
applications was based upon state mental hospital records.
\c The spokesperson told us that the denial of these 21 applications
was based upon criminal history records showing that the applicants
had been arrested for being absent without leave from the military.
\d The number of denials (406) represents 0.6 percent of the total
(67,101) handgun purchase applications processed by the Ohio Bureau
of Criminal Identification and Investigation through February 28,
1995.
Source: Ohio Bureau of Criminal Identification and Investigation.
Table III.11
Handgun Purchase Denial Statistics for
the State of South Carolina, February
28, 1994-February 28, 1995
Percent
Category/reasons Number of total
---------------------- ---------------------- ----------------------
Criminal history
records
Total felonies 1,903\a 96.1
Misdemeanor warrants 1 0.1
======================================================================
Total 1,904 96.2
Other Brady ineligible
categories
Fugitives from justice 27\b 1.4
Adjudicated mentally 5\c 0.3
defective or
committed
Dishonorable discharge 8\d 0.4
from Armed Forces
Illegal aliens 3\e 0.2
======================================================================
Total 43 2.2
1994 Crime Act 0 0
Traffic offenses 0 0
Administrative or
other
Violation of state law 33\f 1.7
======================================================================
Grand total 1,980\g 100.0
----------------------------------------------------------------------
\a Denial of these 1,903 applications was based on criminal history
records involving felonies and/or misdemeanors. According to a South
Carolina State Law Enforcement Division spokesperson, all of the
misdemeanor-related denials (an indeterminable number) involved
offenses that, under South Carolina law, could have resulted in
sentences of more than 2 years. Regarding the felony-related
denials, the Division's records available for our review did not
specify the status (e.g., indictment, arrest, or conviction) of the
offense.
\b When an applicant's criminal history record shows the applicant is
a fugitive from justice, the Division's policy is to confirm the
active status of the warrant, and, if it is still active, to contact
the local (city or county) law enforcement agency within the
jurisdiction where the applicant resides. The Division also contacts
and provides the originating agency with the pertinent information.
\c The Division spokesperson told us that these five applications
were initially approved and the applicants purchased handguns;
however, after relatives of the applicants contacted the Division and
submitted physicians' statements confirming the applicants had
previously been committed to a mental institution, the Division
reversed the approvals and retrieved the handguns.
\d The Division spokesperson also told us that the denial of these
eight applications was based on criminal history records and
subsequent contacts with the originating agency and military
officials to confirm the applicants' dishonorable discharges from the
Armed Forces.
\e The Division spokesperson told us that denial of these three
applications was based upon criminal history records and contacts
with the arresting or originating agency officials, who confirmed the
applicants had no valid identification. In such cases, the Division
contacts and provides the Immigration and Naturalization Service with
the pertinent information.
\f Denial of these 33 applications was based on South Carolina law,
which prohibits the purchase of more than 1 handgun within a 30-day
period.
\g The number of denials (1,980) represents 3.2 percent of the total
(62,812) handgun purchase applications processed by the South
Carolina State Law Enforcement Division through February 28, 1995.
Source: South Carolina State Law Enforcement Division.
Table III.12
Handgun Purchase Denial Statistics for
Abilene, Texas, February 28, 1994-
February 28, 1995
Percent
Category/reasons Number of total
---------------------- ---------------------- ----------------------
Criminal history
records
Total felonies 11 61.1
Felony arrests (no 2 11.1
disposition shown)
Felony convictions 9\a 50.0
======================================================================
Total 11 61.1
Other Brady ineligible
categories
Fugitives from justice 2\b 11.1
Unlawful drug users or 2\c 11.1
addicts
Illegal aliens 2\d 11.1
======================================================================
Total 6 33.3
1994 Crime Act 0 0
Traffic offenses 0 0
Administrative or
other
Applicant presented 1 5.6
questionable
identification
======================================================================
Grand total 18\e 100.0
----------------------------------------------------------------------
\a According to the Abilene Police Department's records, denial of
one of these nine applications was based on the applicant answering
"yes" to the question, "Have you ever been convicted in any court of
a crime punishable by imprisonment for a term exceeding one year?"
\b When an applicant's criminal history record shows the applicant is
a fugitive from justice, the Department's policy is to confirm that
the warrant is active, and if so, to arrest the applicant.
\c According to a Department spokesperson, denial of these two
applications was based on the applicants' criminal history records
involving arrests for drug offenses by local law enforcement
officials.
\d The Department spokesperson told us that denial of these two
applications was based on the applicants answering "yes" to the
question, "Are you illegally in the United States?" In such cases,
the Department denies the handgun application but takes no further
enforcement action.
\e The number of denials (18) represents 1 percent of the total
(1,876) handgun purchase applications processed by the Abilene Police
Department through February 28, 1995.
Source: Abilene, Texas, Police Department.
Table III.13
Handgun Purchase Denial Statistics for
Fort Worth, Texas, February 28, 1994-
March 3, 1995
Percent
Category/reasons Number of total
---------------------- ---------------------- ----------------------
Criminal history
records
Total felonies 138 10.7
Felony indictments 23 1.8
Felony convictions 112 8.7
Felony warrants 3\a 0.2
Misdemeanor warrants 58\b 4.5
Other criminal 1\c 0.1
offenses
======================================================================
Total 197 15.3
Other Brady ineligible
categories
Adjudicated mentally 7\d 0.5
defective or
committed
Illegal aliens 2\e 0.2
======================================================================
Total 9 0.7
1994 Crime Act 0 0
Traffic offenses
Traffic offense 505 39.2
warrants
Administrative or
other
Dealer transmitted 434 33.7
Brady form to wrong
law enforcement
agency
Brady form incomplete/ 127\f 9.9
inaccurate
Brady form illegible 5\g 0.4
Form delivered by 9 0.7
regular versus
registered mail
Copy of Brady form not 1 0.1
transmitted to law
enforcement agency
within 1 day
Applicant presented 1 0.1
invalid
identification
======================================================================
Total 577 44.8
======================================================================
Grand total 1,288\h 100.0
----------------------------------------------------------------------
\a When an applicant's criminal history record includes an
outstanding felony warrant, the Fort Worth Police Department's policy
is to confirm the active status of the warrant, and if it is still
active, to forward it to the Department's Fugitive Section, which is
responsible for the service of the warrant.
\b Denial of these 58 applications was based on the existence of
outstanding misdemeanor warrants. The misdemeanor warrants were
issued for offenses ranging from assault and criminal mischief to hot
checks and theft. According to a Department spokesperson, there is
no state or local law prohibiting persons from purchasing a handgun
if they have been found guilty of a misdemeanor offense; however, the
Department considers such individuals to be fugitives from justice if
their criminal history records include any outstanding warrants.
\c Denial of this application was based on a criminal history record;
however, the Department's records available for our review did not
specify the type (e.g., felony or misdemeanor) of offense.
\d Denial of these seven applications was based on records maintained
by the Tarrant County Mental Health Center.
\e The Department spokesperson told us that denial of these two
applications was based upon criminal history records showing that the
applicants were not legally residing in the United States. In such
cases, the Department denies the handgun application but takes no
further enforcement action.
\f Of these 127 applications, 33 were denied because Part A of the
Brady form was incomplete or inaccurate, 88 were denied because Part
B was incomplete or inaccurate, and 6 others were denied because an
unspecified part of the Brady form was incomplete or inaccurate.
\g These five applications were denied because a facsimile of the
Brady form that was provided by gun dealers was illegible.
\h The number of denials (1,288) represents 14.5 percent of the total
(8,904) handgun purchase applications processed by the Fort Worth
Police Department through March 3, 1995.
Source: Fort Worth, Texas, Police Department.
Table III.14
Handgun Purchase Denial Statistics for
Harris County, Texas, February 28, 1994-
February 28, 1995
Percent
Category/reasons Number of total
---------------------- ---------------------- ----------------------
Criminal history
records
Total felonies 1,012\a 26.0
Other criminal 226\b 5.8
offenses
======================================================================
Total 1,238 31.8
Other Brady ineligible
categories
Adjudicated mentally 1\c 0.0
defective or
committed
Dishonorable discharge 6\d 0.2
from Armed Forces
Illegal aliens 20\e 0.5
======================================================================
Total 27 0.7
1994 Crime Act 0 0
Traffic offenses 0 0
Administrative or
other
Dealer transmitted 2,608 67.0
Brady form to wrong
law enforcement
agency
Applicant presented 16 0.4
questionable
identification
Brady form incomplete/ 3 0.1
inaccurate
======================================================================
Total 2,627 67.5
======================================================================
Grand total 3,892\f 100.0
----------------------------------------------------------------------
\a Denial of 129 of these 1,012 applications was for felony arrests,
but the final disposition was not shown in the criminal history
records. Denial of the remaining 883 applications was also for
felony-related reasons; however, the Harris County Sheriff's records
available for our review did not specify the status (e.g.,
indictment, arrest, or conviction) of the offense.
\b Denial of these 226 applications was based on outstanding
warrants; however, the Department's records available for our review
did not specify the type (e.g., felony or misdemeanor) of criminal
offense involved.
\c According to a Department spokesperson, denial of this application
was based on a probate court record or a criminal history record
involving the commitment of the individual to a mental institution.
\d The Department spokesperson told us that denial of these
applications was based on criminal history records involving a
dishonorable discharge from the Armed Forces.
\e The Department spokesperson also told us that denial of these 20
applications was based on criminal history records showing that the
applicants were not legal residents of the United States.
\f The number of denials (3,892) represents 26.8 percent of the total
(14,514) handgun purchase applications processed by the Harris County
Sheriff's Department through February 28, 1995. An indeterminable
portion of these denied applications were later approved based on
information subsequently provided by the applicant.
Source: Harris County, Texas, Sheriff's Department.
Table III.15
Handgun Purchase Denial Statistics for
Houston, Texas, February 28, 1994-
February 28, 1995
Percent
Category/reasons Number of total
---------------------- ---------------------- ----------------------
Criminal history
records
======================================================================
Total felonies 905\a 14.3
Other Brady ineligible
categories
Fugitives from justice 57\b 0.9
Unlawful drug users or 355\c 5.6
addicts
Adjudicated mentally 6\d 0.1
defective or
committed
Dishonorable discharge 9\e 0.1
from Armed Forces
Illegal aliens 112\f 1.8
======================================================================
Total 539 8.5
1994 Crime Act 0 0
Traffic offenses
Traffic offense 908 14.4
warrants
Administrative or
other
Dealer transmitted 3,970 62.8
Brady form to wrong
law enforcement
agency
======================================================================
Grand total 6,322\g 100.0
----------------------------------------------------------------------
\a Denial of these 905 applications was for felony-related reasons;
however, the Houston Police Department's records available for our
review did not specify the status (e.g., indictment, arrest, or
conviction) of the offense.
\b When an applicant's criminal history record shows the applicant is
a fugitive from justice, the Department's policy is to provide the
pertinent information to the Department's Fugitive Detail Division,
which is responsible for the service of the warrant.
\c According to a Department spokesperson, denial of these 355
applications was based on criminal history records showing that
felony drug offenses had been committed or a misdemeanor drug
conviction received within 5 years of the date of application;
however, the Department's records available for our review did not
specify the type (e.g., felony or misdemeanor) of criminal offense
involved.
\d The Department spokesperson told us that denial of these six
applications was based on criminal history records showing the
results of mental competency adjudications.
\e The Department spokesperson also told us that denial of these nine
applications was based on criminal history records showing arrests
for being absent without leave from the military.
\f The Department spokesperson told us that denial of these 112
applications was based on criminal history records involving the
violation of immigration laws. An indeterminable portion of the
denials was because the applicants were not legally residing in the
United States. Similarly, an indeterminable portion of the denials
involves the violation of other immigration laws such as the
transportation of illegal aliens. In either case, the Department
takes no follow-up enforcement or referral action.
\g The number of denials (6,322) represents 18.5 percent of the total
(34,203) handgun purchase applications processed by the Houston
Police Department through February 28, 1995.
Source: Houston, Texas, Police Department.
Table III.16
Handgun Purchase Denial Statistics for
Pasadena, Texas, February 28, 1994-
February 28, 1995
Percent
Category/reasons Number of total
---------------------- ---------------------- ----------------------
Criminal history
records
Total felonies 61 54.5
Felony convictions 59 52.7
Felony warrants 2\a 1.8
Misdemeanor warrants 50\b 44.6
======================================================================
Total 111 99.1
Other Brady ineligible
categories
Dishonorable discharge 1\c 0.9
from Armed Forces
1994 Crime Act 0 0
Traffic offenses 0 0
Administrative or 0 0
other
======================================================================
Grand total 112\d 100.0
----------------------------------------------------------------------
\a When an applicant's criminal history record includes an
outstanding felony warrant, the Pasadena Police Department's policy
is to serve the warrant. However, if the Department is unable to
serve the warrant, it is to contact and provide the originating
agency with the pertinent information.
\b Denial of these 50 applications was based on the existence of
outstanding misdemeanor warrants. According to a Department
spokesperson, there is no state or local law prohibiting persons from
purchasing a handgun if they have been found guilty of a misdemeanor
offense; however, the Department considers such individuals to be
fugitives from justice if their criminal history records include any
outstanding warrants.
\c Denial of this one application was based on criminal history
records showing an arrest for being absent without leave from the
military.
\d The number of denials (112) represents 3.6 percent of the total
(3,071) handgun purchase applications processed by the Pasadena
Police Department through February 28, 1995.
Source: Pasadena, Texas, Police Department.
(See figure in printed edition.)Appendix IV
COMMENTS FROM THE DEPARTMENT OF
THE TREASURY AND THE BUREAU OF
ALCOHOL, TOBACCO AND FIREARMS
========================================================= Appendix III
and 47.
Now on pp. 6 and 52.
8, 40, and 45.
(See figure in printed edition.)
See p. 36.
See p. 14.
comment 2.
(See figure in printed edition.)
Now on p. 15.
Now on p. 20.
Now on p. 20.
(See figure in printed edition.)
Now on p. 21.
on p. 45.
See p. 55.
Following are GAO's comments on the Department of the Treasury's and
the Bureau of Alcohol, Tobacco and Firearms' (ATF) November 6, 1995,
letter.
GAO'S COMMENTS
------------------------------------------------------- Appendix III:1
1. Treasury and ATF noted that our report refers to ATF and the
Department of Justice (DOJ) and that, to be more consistent, we
should refer instead to DOJ and the Department of the Treasury. We
recognize that our references are to agencies of different levels and
that ATF is part of Treasury. However, our contacts in completing
this review were all with DOJ and ATF employees, so we feel we are
appropriately referring to these agencies.
2. Treasury and ATF wanted us to clarify a sentence in which we
disclose what a South Carolina official told us regarding the
handling of a handgun sale when a purchase-disqualifying disposition
cannot be determined within 5 business days. We believe our sentence
clearly and accurately reflects what the official told us.
3. Treasury and ATF noted that the Brady handgun purchase form
included in our draft report was not the most current form. The
modified form contains a section for the prospective handgun
purchaser to supply his or her alien registration number, if
applicable. A copy of the modified ATF form appears in appendix I.
(See figure in printed edition.)Appendix V
COMMENTS FROM THE DEPARTMENT OF
JUSTICE
========================================================= Appendix III
(See figure in printed edition.)
throughout.
See p. 47,
for example.
(See figure in printed edition.)
MAJOR CONTRIBUTORS TO THIS REPORT
========================================================== Appendix VI
GENERAL GOVERNMENT DIVISION,
WASHINGTON, D.C.
-------------------------------------------------------- Appendix VI:1
David P. Alexander, Senior Social Science Analyst
Robert P. Glick, Senior Evaluator
Pamela V. Williams, Communications Analyst
DALLAS FIELD OFFICE
-------------------------------------------------------- Appendix VI:2
Beth D. Atkins, Technical Information Specialist
Steve D. Boyles, Evaluator
Danny R. Burton, Assistant Director
Christopher H. Conrad, Senior Evaluator
Donald F. Hass, Senior Evaluator
OFFICE OF THE GENERAL COUNSEL
-------------------------------------------------------- Appendix VI:3
Geoffrey R. Hamilton, Senior Attorney
Jan B. Montgomery, Assistant General Counsel
*** End of document. ***