Draft:It’s a felony to sell a new gun without a background check.

From Gun Retort

Short Retort[edit | edit source]

Claim Rationale[edit | edit source]

Retort Deep-Dive[edit | edit source]

To conduct background checks on potential firearms purchasers, the FBI must rely on state criminal history records and records on other prohibited categories that are not totally complete and accessible. As a result, the FBI cannot always obtain complete background information within the 3-day waiting period. The law allows any FFL to transfer a firearm at the end of the 3-day waiting period regardless of whether the background check has been completed. Some prohibited persons thus receive firearms when the background check takes longer than three days to complete. The FBI refers to the ATF the names of all prohibited persons who attempted to or succeeded in obtaining a firearm from an FFL. The ATF is responsible for promptly retrieving firearms transferred to persons found to be prohibited subsequent to the 3-day processing deadline and for investigating those referrals from the FBI that meet the USAOs’ prosecutorial guidelines. During CYs 2002 and 2003, the FBI referred a total of 7,030 cases to the ATF in which persons that it identified as prohibited succeeded in obtaining firearms (“delayed denial” cases). The FBI also referred a total of 121,909 “standard denial” cases in which background checks were completed in time to prevent a prohibited person from obtaining a firearm. At the ATF, the Brady Operations Branch reviews the FBI referrals and forwards those denials that require a firearm retrieval or that meet the USAOs’ prosecutorial guidelines to the NICS coordinator in the appropriate ATF division office. Each NICS coordinator reviews the referrals and disseminates them to the appropriate field or satellite office for investigation. RESULTS IN BRIEF The ATF is responsible for retrieving firearms expeditiously from persons prohibited by the GCA from possessing firearms. We found that although the ATF normally has been able to retrieve the firearms eventually, the retrievals were not always timely. We also found that ATF special agents did not sufficiently document retrievals or provide assurance that a prohibited person no longer had access to the firearm.

Since 1998, the ATF has made progress in screening standard denial cases referred by the FBI. However, we found that the Brady Operations Branch and the ATF division offices were still referring standard denial cases to the ATF field offices that lacked prosecutorial merit, thereby increasing the workload of already overburdened field investigators and delaying the investigation of prosecutable cases. Cases without prosecutorial merit were being referred due to the lack of sufficient USAO prosecutorial guidelines, inadequate screening by some ATF divisions, inadequate communication, and insufficient training and guidance.

The Brady Operations Branch was using broad guidelines synthesized from jurisdiction-specific guidelines prepared by multiple USAOs. As a result, ATF division office personnel were required to perform additional screening using more specific individual USAO guidelines in order to

determine whether a case merited investigation. Further, we found that the ATF had not allocated sufficient resources to the Brady Operations Branch to enable it to fully execute its responsibilities. Insufficient staffing resulted in extensive NICS case backlogs, which delayed the referral process and affected the timeliness of investigations. Also, the ATF had not provided funds for technological modifications of its case tracking and referral system to improve the operational efficiency of the Brady Operations Branch.

Our review also found that few NICS cases are prosecuted. During CYs 2002 and 2003, only 154 (less than 1 percent) of the 120,000 persons who were denied during the NICS background check were prosecuted. Historically, USAOs have been unsuccessful in achieving convictions in many of these cases and consequently have been unwilling to expend their limited resources on prosecuting most NICS cases.

  • (C) as applied to a dealer in firearms, as defined in section 921(a)(11)(A), a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms; https://www.law.cornell.edu/uscode/text/18/921