Discredited gun researcher John Lott claimed that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) "dropped over 94 percent" of instances where an individual failed a criminal background check "after preliminary reviews" in order to discount accurate claims that the background check system has stopped over a million prohibited individuals from obtaining a firearm.
Lott's claim is a willful distortion of how the federal background check system works: once an individual is denied by the National Instant Criminal Background Check System (NICS) no gun sale occurs, regardless of whether the ATF takes further action.
On to [Senator Chuck] Schumer's second falsehood -- the claim that checks have stopped 1.7 million prohibited sales. In fact, these were only "initial denials," not people prevented from buying guns.
The Bureau of Alcohol, Tobacco, Firearms and Explosives dropped over 94 percent of those "initial denials" after preliminary reviews. Further review cleared at least a fifth of the other 6 percent.
Lott would have his audience believe that because ATF does not take further action after most denials that the background check system did not actually stop "1.7 million prohibited sales." This claim is blatantly false as a denial means that the sale cannot be completed.
There is also good reason to believe that the vast majority of individuals stopped by the background check system were prohibited by federal or state law from owning a firearm. The FBI, which administers NICS, noted in a 2011 operations report that that of 78,211 denial decisions that year, less than 20 percent of the 17,203 appeals were successful. Put another way, using similar 2010 data, approximately just 1 out of 1,729 gun sales conducted by licensed firearms dealers resulted in a denial that was successfully appealed.*
Overall, the FBI reports that NICS has processed nearly 900,000 denials since 1998 with over half of those denials involving individuals convicted of felonies or serious misdemeanors. State agencies have accounted for several hundred thousand additional denials for a total of at least 1.5 million denials since 1998.
Furthermore, Lott fails to offer any context as to why the ATF does not take further action after most background check denials. According to 2010 data, the ATF did not refer 89.6 percent of background check denials to ATF field offices. An additional 4.2 percent of denials were successfully appealed, while the remaining 6.2 percent were referred to ATF field divisions for additional action, including possible referral to a federal prosecutor.
In some instances ATF steps aside to allow local law enforcement to take action. According to Washington Post fact checker Glenn Kessler, a Department of Justice official said that local police departments often dispatch law enforcement officers to gun stores where a fugitive from justice has attempted to buy a firearm, meaning that no ATF action is necessary.
Federal prosecutors have also stated that they are hamstrung by current law when it comes to prosecuting attempts by prohibited purchasers to buy guns because federal law requires the prosecutor to prove that the prohibited purchaser willfully lied on the background check form.
During a February 12 hearing on gun violence before the Senate Judiciary Committee, United States Attorney Timothy Heaphy testified about the various problems encountered by federal prosecutors when trying cases where an individual is accused of lying on the background check form. In his testimony, Heaphy stated that proving criminal intent was difficult and noted that the Department of Justice must prioritize cases where a prohibited purchaser actually obtained a firearm as opposed to those cases where the prohibited person lied, but was ultimately stopped from obtaining a gun by a background check:
SEN. JOHN CORNYN: And I know you've been asked about this before, but I can't resist asking you about it again. People who lie on background checks, the record of prosecuting those individuals is pathetic, wouldn't you agree?
HEAPHY: Well I'm glad you asked because I didn't get a chance to answer it when Senator Graham asked the question. As you know, from your experience Senator Cornyn, we need evidence to prove that a crime was committed. And because someone applied to get a gun and went through a background check and there was a misstatement on the form, is not in and of itself, constitute evidence that it was an intentional falsehood.
The common defense in those cases is, "I didn't know that I was prohibited. I didn't know that I had conviction which disqualified me or that I had something in my background." And that's sometimes credible because, again, they could go down the street to a gun show and get the same weapon without having had to submit a form.
SEN. CORNYN: It's credible -- it's credible for them to say, "I didn't know I had a conviction," but yet to say on the background check, "I have no conviction"?
HEAPHY: Again, Senator, we have to have evidence that it was an intentional falsehood, that the fact that it was false was not enough. It's a -- it's a difficult case to prove. Even if we prove it, Senator Cornyn, fully a third of those cases result, unfortunately, in no finding of guilt. Another 37 percent result in a sentence of a year or less.
We are evaluating every case on a spectrum of danger, and the gun background check worked there. We focus our resources must more aggressively on people that actually obtained firearms and used them. [A Hearing On Proposals To Reduce Gun Violence via Nexis, 2/12/13]
Beyond the distortion of how the background check system operates, Lott's other criticisms of President Obama's proposal to strengthen the background check system are deeply flawed. While the background check system has been successful in stopping over a million prohibited purchasers from obtaining firearms, there still are defects in the system that can be fixed. Lott, however, opposes Obama's proposal, characterizing it as suffering from "fundamental unseriousness."
Lott suggests that the president's proposal "wouldn't stop the mass killings Obama mentioned. The Newtown, Conn., shooter stole his mother's guns, while the Tucson, Ariz., and other killers didn't have records that a check would've spotted." But part of the proposal calls for executive action "to make sure reliable data on prohibited purchasers is available to the background check system." Significantly, Seung-Hui Cho, the perpetrator of the Virginia Tech massacre, should have been in the background check system because he was adjudicated mentally ill. Furthermore, the Tucson massacre, which Lott specifically cites, could have been prevented if shooter Jared Loughner's record of drug abuse had been entered into NICS.