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Banned From Owning Guns, Many ‘Lie and Try’ to Buy Them Anyway. Few Are Punished for the Crime.

Here's how some states are trying to fix that.

Earlier this year, a man with an outstanding criminal warrant lied on a background check form in an attempt to buy a firearm at a gun shop in the small town of Pittston, Pennsylvania. What happened next is very rare in the U.S.: The man was arrested before he left the store.

Submitting false information on a background check is a felony under federal law, punishable by up to 10 years in prison and a fine of up to $250,000. But as many as 160,000 people are denied a gun purchase each year because they failed a check. Few are ever apprehended, much less prosecuted. Available federal and state data suggest that the percentage of arrests as a proportion of denied sales is extremely low — likely in the single digits.

Pennsylvania is one of eight states where lawmakers and police have sought to boost arrests and prosecutions by passing laws and implementing so-called “lie and try” policies requiring local law enforcement agencies to be notified whenever someone fails a background check. The goal is to give police a tool they can use to arrest dangerous individuals before they can secure a gun and possibly harm someone. In 32 states, a person who is blocked from buying a firearm at a licensed dealer can turn to a private seller who is not required to run a background check. One 2009 study found a strong proclivity towards further illegal behavior by denied gun purchasers, determining that a third of convicted criminals rejected when attempting to buy a gun are caught breaking another law during the next five years.

In early April, Tennessee became the latest state to enact a “lie and try” law or policy, joining Pennsylvania, California, Colorado, Illinois, Utah, Oregon, and Virginia in doing so. The states currently considering similar measures include Maryland, Nebraska, Wisconsin, Michigan, and New Hampshire.

Chris Scoda, the owner of Advanced Arms Gun Shop in Pittston, tells The Trace that the customer with the outstanding warrant who tried to buy a gun in his shop was a “nice gentleman” as he filled out his background check form. Scoda says he submitted the man’s paperwork for review by the Pennsylvania Instant Check System, which uses state and federal data to screen prospective buyers. According to Scoda, an examiner for the agency quickly flagged the warrant, and notified police, who showed up at his shop to make the arrest.

“Anytime somebody attempts to purchase a firearm unlawfully,” says Scoda, “I think the prosecution of that person is very important.”

Pennsylvania state police have investigated at least some denied gun purchases for over a decade, but until recent years, it was only a small percentage of the overall number. Then in late 2013, police there decided to investigate every failed background check, says Scott Price, a state police major. If a purchaser is denied because of an outstanding warrant, state police now immediately dispatch local officers to arrest the individual at the gun dealer, Price says.

Before the new policy was implemented, Price says, only blocked sales that raised the biggest red flags — like those for mental health commitments — were pursued. “But that left a whole body of denials that weren’t investigated,” he says. “So, we didn’t feel that that was the best public safety policy.”

The stepped up enforcement paid dividends. In 2013, Pennsylvania police investigated 620 failed background checks. The next year, the number of investigations soared, to 4,154. Arrests more than doubled.

thetrace-backgroundchecks-finalsBy acting quickly on notifications of denied sales, Price says, officers are often able to nab “lie-and-try” offenders before they get very far. “We’ve had a great deal of success in actually making these arrests at the point of attempted purchase.” He adds that his officers have encountered people disqualified from firearms ownership for the gamut of reasons. “Anything from a minor offense — a DUI warrant or a failure to appear in court — up through armed robbery.”

Most states with laws or policies for clamping down on “lie and try” buyers require only that law enforcement is notified about a rejected purchaser — there’s no mandate that police act on that information. But Virginia and Oregon join Pennsylvania in compelling police to investigate every denied sale. Last year in Virginia, police arrested 1,265 denied purchasers. Oregon police arrested 40 buyers on the spot, and referred hundreds more cases to local departments for investigation.

“Lie and try” policies are uncharacteristically resistant to the partisan battles that frequently accompany firearm legislation. The new law in Tennessee is a prime example.

Earlier this spring, a different Tennessee bill that would have made it a crime to leave a loaded gun accessible to a child was squashed at the committee phase, thanks to the concerns of conservative legislators. On May 2, the state’s Republican governor, Bill Haslam, let a controversial campus carry measure lapse into law without his signature rather than approve it himself. The “lie and try” legislation, by contrast, cruised through with bipartisan support.

Tennessee’s version of the law focuses on domestic abusers, requiring that law enforcement be notified within 24 hours if a person subject to a restraining order attempts to buy a firearm. “It really doesn’t have anything to do with gun control,” says Democratic Representative Karen Camper, who co-sponsored the bill with Republican Janice Bowling. “I really didn’t get pushback from anyone.”

The National Rifle Association has never officially endorsed a “lie and try” policy, though in the past, the gun group has called on the federal government to address the low prosecution rate for prohibited persons who attempt to buy firearms. Shortly after the Sandy Hook Elementary School shooting in 2012, the gun lobby’s representatives asked the White House’s gun violence prevention task force to enforce federal laws that make it illegal to lie on a gun background check form.

“This is a program that I believe is largely something people on both sides of the aisle support,” says Scott Price, the Pennsylvania State Police major. “Even the NRA has always been a proponent of enforcing the laws that are on the books.”

The states that have enacted or are considering “lie and try” crackdowns are among those that maintain their own background check systems for screening gun buyers. The remaining majority of states — 29 in all — rely on the FBI to screen gun buyers. That means they’re also left to rely on federal law enforcement to punish people who’ve been deemed too high-risk to own guns but try to buy them anyway.

thetrace-backgroundchecks2In a little-noticed piece of the executive actions that President Barack Obama rolled out in January, the FBI began partnering with the U.S. Digital Service on a set of “envisioned” enhancements to the federal background check system, one of which involves increasing the reporting of “lie and try” violators to local authorities. Certainly, federal law enforcement’s track record in policing those prohibited buyers leaves room for improvement.

Under current protocols, after a would-be gun buyer is denied by the FBI, the FBI can send that information to the Denial Enforcement branch of the Bureau of Alcohol, Tobacco, Firearms, and Explosives. But according to a report by Ronald Frandsen, an analyst with the Regional Justice Information Service, a group that provides research for government agencies, the FBI forwards few cases to the ATF for investigation, and the ATF follows through on fewer still.

In 2010, more than 76,000 people failed a federal gun background check. Of those, 4,732 cases were passed to the ATF for further investigation. The majority of those cases involved felons, domestic abusers, and people with active protective orders against them.  

A total of 62 were ultimately referred to U.S. attorneys for prosecution.

[Photo: Joe Raedle/Getty Images]