LAW 

ENFORCEMENT

Few Individuals 

Denied Firearms 

Purchases Are 

Prosecuted and ATF 

Should Assess Use of 

Warning Notices in 

Lieu of Prosecutions

Report to the Ranking Member, 

Subcommittee on Commerce, Justice, 

Science, and Related Agencies, 

Committee on Appropriations, House of 

Representatives

September 2018

GAO-18-440

United States Government Accountability Office
United States Government Accountability Office

 

Highlights of GAO-18-440, a report to the

Ranking Member, Subcommittee on 

Commerce, Justice, Science and Related 

Agencies, Committee on Appropriations, 

House of Representatives. 

September 2018

LAW ENFORCEMENT

Few Individuals Denied Firearms Purchases Are 

Prosecuted and ATF Should Assess Use of Warning 

Notices in Lieu of Prosecutions

What GAO Found

Investigations and prosecutions. Federal and selected state law enforcement 

agencies that process firearm-related background checks through the National 

Instant Criminal Background Check System (NICS) collectively investigate and 

prosecute a small percentage of individuals who falsify information on a firearms 

form (e.g., do not disclose a felony conviction) and are denied a purchase.

Federal NICS checks resulted in about 112,000 denied transactions in fiscal year 

2017, of which the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) 

referred about 12,700 to its field divisions for further investigation. U.S. 

Attorney’s Offices (USAO) had prosecuted 12 of these cases as of June 2018. 

Table: Federal National Instant Criminal Background Check System (NICS) Firearms Denial 

Cases Investigated and Prosecuted, Fiscal Year 2017

Federal NICS 

Transactions Denials

ATF Field Division 

Investigations

United States Attorney’s Offices 

Prosecutions

8,606,286 112,090 12,710 12

Source: GAO Analysis of Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and FBI data. | GAO-18-440

At the state level, officials from 10 of 13 selected states said they did not 

investigate or prosecute firearm denials, some citing competing resource 

demands and the lack of statutes with which states prosecute as reasons. The 

remaining 3 states investigated a high proportion of firearms denials. One of the 

3 states reported about 1,900 referrals for prosecution in 2017 and about 470 

convictions. 

Challenges. ATF and selected states reported challenges in investigating and 

prosecuting firearms denials. Officials from six selected ATF field divisions said 

that investigating the increasing number of denial cases referred to field 

divisions—which increased from about 5,200 in fiscal year 2011 to about 12,700 

in fiscal year 2017—has been time intensive and required use of their limited 

resources. ATF policy provides that field divisions may send “warning notices” to 

denied persons in lieu of prosecution, but ATF has not assessed field divisions’ 

use of these notices, which could provide greater awareness of their deterrence 

value and inform whether any policy changes are needed. Officials from the 

Executive Office for United States Attorneys said that prosecuting denial cases 

can require significant effort and may offer little value to public safety compared 

to other cases involving gun violence. Selected state officials said that denial 

investigations can take law enforcement officials away from their core duties. 

State prosecutors said gathering evidence to prove individuals knew they were 

prohibited was a challenge. 

Types of cases. ATF field divisions investigate denial cases based on USAO 

criteria and generally only refer cases to USAOs for prosecution when 

aggravating circumstances exist, such as violent felonies or multiple serious 

offenses over a short period of time. Officials from two of three selected states 

refer all denial cases for investigation, while one state uses risk-based criteria for 

selecting cases that include conditions such as felony convictions and 

misdemeanor crimes of domestic violence. Prosecutors from these three states 

said they generally pursue cases that involve indications of violence, though 

individual prosecutors had differing priorities based on public safety concerns.

View GAO-18-440. For more information, 

contact Gretta L. Goodwin, 202-512- 8777 

goodwing@gao.gov. 

Why GAO Did This Study

In 2017, approximately 25.6 million 

firearm-related background checks 

were processed through NICS, and 

about 181,000 of the attempted 

purchases at the federal and state 

levels combined were denied because 

the individual was prohibited from 

possessing a firearm under federal or 

state law. Individuals who certify that 

they are not prohibited from purchasing 

or receiving a firearm and are 

subsequently determined to be 

prohibited could be subject to 

investigation, and if prosecuted, a fine, 

imprisonment, or both. 

GAO was asked to examine firearms 

denials. This report (1) describes the 

extent to which federal and selected 

state law enforcement agencies 

investigate and prosecute firearms 

denial cases; (2) examines related 

challenges faced by these agencies; 

and (3) describes the circumstances 

that lead to investigations and 

prosecutions. GAO reviewed laws and 

regulations; analyzed federal and state 

data from 2011 through 2017; and 

interviewed officials from ATF 

headquarters, 6 of 25 ATF field 

divisions (the 6 that investigated the 

most cases), and the 13 states that 

process all NICS checks within their 

state. Results from state interviews are 

not generalizable but provide insights 

on state practices.

What GAO Recommends

GAO recommends that ATF assess 

the extent to which ATF field divisions 

use warning notifications as an 

enforcement tool, which would inform 

whether changes to policy are needed.

DOJ concurred with GAO’s

recommendation.
Page i GAO-18-440 Firearm Denials

Letter 1

Background 5

Federal and Selected State Law Enforcement Agencies 

Collectively Investigate and Prosecute a Small Percentage of 

Firearms Denials 13

ATF and Selected States Cited Challenges Investigating and 

Prosecuting Firearms Denials; ATF Has Not Assessed Field 

Divisions’ Use of Warning Notices 19

Firearms Denial Investigations and Prosecutions Are Generally 

Based on Aggravating Circumstances in Addition to Criminal 

Records 30

Conclusions 38

Recommendation for Executive Action 39

Agency Comments 39

Appendix I Objectives, Scope and Methodology 40

Appendix II Bureau of Alcohol, Tobacco, Firearms and Explosives Form 4473 44

Appendix III Investigation and Prosecution of Firearms Denials in Oregon 50

Appendix IV Investigation and Prosecution of Firearms Denials in Pennsylvania 58

Appendix V Investigation and Prosecution of Firearms Denials in Virginia 68

Appendix VI Examples of Firearms Denial Cases Referred for Prosecution 80

Appendix VII GAO Contacts and Staff Acknowledgements 83

Contents
Page ii GAO-18-440 Firearm Denials

Tables

Table 1: National Instant Criminal Background Check System 

(NICS) Denial Cases Investigated and Prosecuted, Fiscal 

Years (FY) 2016 and 2017 14

Table 2: Oregon Firearm Denials by Prohibiting Category, Fiscal 

Years 2011 through 2017 54

Table 3: Pennsylvania Firearms Denials by Prohibiting Category, 

Fiscal Years 2014 through 2017 62

Table 4: Disposition of Firearm Denial Cases in Pennsylvania, 

2014 through 2017 66

Table 5: Virginia Firearm Denials by Prohibiting Category, Fiscal 

Years 2011 through 2017 74

Table 6: Virginia Firearm Denials and Investigations, Fiscal Years 

2011 through 2017 76

Table 7: Examples of Firearm Denial Cases Referred for 

Prosecution 80

Figures

Figure 1: State Policy for Implementing the Federal Bureau of 

Investigation’s (FBI) National Instant Criminal 

Background Check System (NICS) as of May 2018 6

Figure 2: Federal and State National Instant Criminal Background 

Check System (NICS) Checks and Denials, Fiscal Years 

2011 through 2017 8

Figure 3: National Instant Criminal Background Check System 

(NICS) Process for a Firearms Purchase 11

Figure 4: Process for Investigating and Prosecuting Firearms 

Denials 12

Figure 5: Firearms Denial Cases Referred to Bureau of Alcohol, 

Tobacco, Firearms and Explosives Field Divisions for 

Investigation, Fiscal Years 2011 through 2017. 24

Figure 6: Standard and Delayed Denials Referred to Bureau of 

Alcohol, Tobacco, Firearms and Explosives (ATF) Field 

Divisions for Investigation by Prohibiting Category, Fiscal 

Years 2011 through 2017 32

Figure 7: Process for Purchasing a Firearm from a Dealer in 

Oregon 52

Figure 8: Process for Purchasing a Firearm from a Dealer in 

Pennsylvania 61

Figure 9: Process for Purchasing a Firearm from a Dealer in 

Virginia 72
Page iii GAO-18-440 Firearm Denials

Abbreviations

ATF Bureau of Alcohol, Tobacco, Firearms and Explosives 

DENI Denial Enforcement and NICS Intelligence

EOUSA Executive Office for United States Attorneys 

FBI Federal Bureau of Investigation

FFL federal firearms licensee 

FICS Firearms Instant Check System 

FTC Firearms Transaction Center 

NICS National Instant Criminal Background Check System 

OSP Oregon State Police 

POC Point of Contact 

PSP Pennsylvania State Police 

USAO United States Attorney’s Office 

VSP Virginia State Police

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Page 1 GAO-18-440 Firearm Denials

441 G St. N.W.

Washington, DC 20548

September 5, 2018

The Honorable José E. Serrano

Ranking Member

Subcommittee on Commerce, Justice, Science, and Related Agencies

Committee on Appropriations

House of Representatives

Dear Mr. Serrano:

In 2017, approximately 25.6 million firearm-related background checks 

were processed through the Federal Bureau of Investigation’s (FBI) 

National Instant Criminal Background Check System (NICS), and about 

181,000 (about 1 percent) of the attempted purchases were denied 

because the individual was prohibited from possessing a firearm under 

federal or state law.1 To purchase a firearm from a federal firearms 

licensee (FFL)—or gun dealer—individuals are required to complete the 

Alcohol, Tobacco, Firearms and Explosives (ATF) Form 4473, certifying 

that they are not prohibited from purchasing or receiving a firearm under 

federal or state law. Individuals who sign the form and are later 

determined through a background check to be prohibited could be subject 

to investigation, and if prosecuted, a fine, imprisonment, or both.2

 

1

Under 18 U.S.C. § 922(g), persons are generally prohibited from possessing or receiving 

a firearm if they (1) have been convicted in any court of a crime punishable by 

imprisonment for a term exceeding 1 year; (2) are a fugitive from justice; (3) are an 

unlawful user of or addicted to any controlled substance; (4) have been adjudicated as a 

“mental defective” or committed to a mental institution; (5) are aliens illegally or unlawfully 

in the United States, or certain other aliens admitted under a nonimmigrant visa; (6) have 

been dishonorably discharged from the military; (7) have renounced their U.S. citizenship; 

(8) are under a qualifying domestic violence restraining order; or (9) have been convicted 

of a misdemeanor crime of domestic violence. In addition, 18 U.S.C. § 922(n) prohibits 

(10) persons under indictment for a crime punishable by imprisonment for a term 

exceeding 1 year from receiving a firearm. Individual states may have prohibiting factors in 

addition to those in federal law.

2

Under 18 U.S.C. § 922(a)(6), it is unlawful for any person in connection with the 

acquisition or attempted acquisition of any firearm or ammunition from a federal firearms 

licensee, knowingly to make any false or fictitious oral or written statement or to furnish or 

exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive 

such federal firearms licensee with respect to any fact material to the lawfulness of the 

sale or other disposition of the firearm or ammunition. In addition, generally under 18 

U.S.C. § 924(a)(1)(A), it is unlawful for a person to knowingly make any false statement or 

representation with respect to the information required to be kept in the records of a 

federal firearms licensee. 

Letter
Page 2 GAO-18-440 Firearm Denials

For 29 states, the District of Columbia, and U.S. territories, the FBI’s 

NICS Section is responsible for processing all NICS background checks 

and referring denied transactions to ATF. ATF is responsible for 

determining which denied transactions to investigate and refer to a United 

States Attorney’s Office (USAO) for prosecution. The other 21 states use 

state or local criminal justice agencies to process some or all of their own 

NICS background checks. Thirteen of these 21 states process all of their 

own NICS checks, and are known as point-of-contact (POC) states. The 

remaining 8 states conduct NICS checks on persons who attempt to 

purchase a handgun, while the FBI conducts checks on long gun 

purchasers. These states are known as partial POC states.3

You requested that we examine the extent to which individuals who are 

prohibited from purchasing firearms and attempt to purchase a firearm 

face investigation and prosecution. This report:

• describes the extent to which federal and selected state law 

enforcement agencies investigate and prosecute firearms denial 

cases,4

• examines the challenges, if any, that federal and selected state law 

enforcement agencies face in investigating and prosecuting firearms 

denial cases, and

• describes the circumstances that lead to the investigation and 

prosecution of persons denied firearms. 

To address the first objective, we analyzed federal data from the FBI’s 

NICS system and ATF’s case management systems for fiscal years 2011 

through 2017 to determine the number of firearms denials by state and 

prohibiting category and identify trends in the number of denials the ATF’s 

Denial Enforcement NICS Intelligence (DENI) Branch referred to ATF 

 

3

According to a Department of Justice-funded report, states may elect POC or non-POC 

status for various reasons, such as a state’s attitude toward gun ownership, since many 

POC states have prohibiting legislation that is stricter than federal laws and regulations 

(with respect to categories of people prohibited from possessing firearms). Additionally, 

there may be an economic incentive for states to elect non-POC status, since 

implementing and operating a POC may cost a state more money than it can collect in 

fees charged to federal firearms licensees for conducting background checks.

4

Our selected states consisted of the 13 POC states that process all of their own NICS 

checks: California, Colorado, Connecticut, Florida, Hawaii, Illinois, Nevada, New Jersey, 

Oregon, Pennsylvania, Tennessee, Utah, and Virginia. 
Page 3 GAO-18-440 Firearm Denials

field divisions.5 For federal prosecutions, we reviewed information from 

ATF’s case management system that identified NICS cases that were 

prosecuted. For state investigations and prosecutions, we selected the 13 

POC states that perform their own background checks for all firearms 

transactions to determine their policies regarding the investigation and 

prosecution of persons denied firearms purchases. For the states that 

investigate firearms denials, we analyzed state police data on the number 

of denials, the prohibiting category for the denials, and the number of 

these denials that were referred to state or local law enforcement for 

investigation for fiscal years 2011 through 2017. We spoke to 

investigators and prosecutors in these states to discuss the investigative 

processes followed and the frequency of prosecution.

To address the second objective, for federal denial investigations, we 

interviewed officials from the six ATF field divisions that received 

approximately 60 percent of the total standard denial referrals across 

ATF’s 25 field divisions from fiscal years 2011 through 2017 about the 

investigative process for standard and delayed denial investigations and 

the challenges, if any, these investigations posed to ATF staff.6 We also 

discussed the types of cases that each of these field divisions referred to 

the USAO for prosecution. Further, we interviewed Executive Office for 

United States Attorneys (EOUSA) officials to discuss the circumstances 

that would lead a USAO to prosecute a firearms denial case and the 

challenges, if any, faced in these prosecutions. We also evaluated ATF’s 

investigative procedures and internal controls in place against the 

Standards for Internal Control in the Federal Government.

7 For state 

denial investigations, we interviewed state troopers and local law 

enforcement to learn about their investigative procedures, and any 

challenges investigators may face. We also spoke with multiple 

prosecutors from each of these states and discussed the prosecutor 

offices’ policy for accepting these denial cases, how often these cases 

 

5

ATF’s DENI Branch researches and analyzes NICS denials received from the FBI NICS 

Section, and refers denials that meet certain criteria to ATF field offices for further 

investigation.

6

If the FBI or state agency completes a background check within 3 business days and 

determines that a person should be denied, such denials are referred to as “standard 

denials” and do not involve the potential transfer of a firearm. If the FBI or state agency 

cannot complete a background check within 3 business days, the gun dealer may transfer 

the firearm pursuant to federal law, unless state law provides otherwise.

7

GAO, Standards for Internal Control in the Federal Government, GAO-14-704G 

(Washington, D.C.: Sept. 10, 2014). 
Page 4 GAO-18-440 Firearm Denials

were prosecuted in these localities and the challenges each faced when 

prosecuting these cases.

To address the third objective, for federal denials, we analyzed criteria 

that the 34 USAO districts within our six selected ATF field divisions have 

established to determine which denials ATF should send to its field offices 

for further investigation. We then visited ATF’s DENI Branch to observe 

how denials are screened and discuss internal controls for ensuring that 

ATF referrals to its field divisions follow the criteria. We also analyzed 

ATF data on denials to identify the prohibited categories of the cases that 

were referred to ATF field divisions from 2011 through 2017, the 

investigations that were referred to USAOs for prosecution and those that 

were ultimately prosecuted by USAOs. Officials from our six selected ATF 

field divisions also provided examples of denial cases investigated and 

referred for prosecution. These case examples included the specific 

circumstances that convinced the field division to investigate and refer the 

case for prosecution. We also researched legal databases to identify the 

specific circumstances of the cases prosecuted, the statutes used to 

charge the defendants, and the outcome of the cases. Further, we 

interviewed EOUSA officials about how USAOs determine the 

circumstances that would lead a USAO to prosecute a firearms denial 

case. For state denial investigations, we spoke with state and local 

investigators from the three states that investigate and prosecute firearms 

denials to determine the circumstances that may lead to a prosecution. 

We also spoke with multiple prosecutors from the same states and asked 

them to describe the characteristics of cases they are more likely to 

prosecute, as well as those they are less likely to prosecute.

To assess the reliability of federal and state data on investigations and

prosecutions of individuals denied firearms purchases related to all three 

objectives, we reviewed the internal controls in place within these 

systems and interviewed federal and state officials about their procedures 

for creating these data. We determined that these data were sufficiently 

reliable for the purpose of our reporting objectives. Also, for all objectives, 

while we did not speak to a representative sample of federal and state 

investigators and prosecutors, our interviews provided valuable insights 

about how these investigations and prosecutions are conducted and 

prioritized. Appendix I contains a more detailed discussion of our scope 

and methodology.

We conducted this performance audit from March 2017 through 

September 2018 in accordance with generally accepted government 

auditing standards. Those standards require that we plan and perform the 
Page 5 GAO-18-440 Firearm Denials

audit to obtain sufficient, appropriate evidence to provide a reasonable 

basis for our findings and conclusions based on our audit objectives. We 

believe that the evidence obtained provides a reasonable basis for our 

findings and conclusions based on our audit objectives.

Under the Brady Handgun Violence Prevention Act of 1993 (referred to 

hereafter as the “Brady Act”) and implementing regulations, the FBI and 

designated state and local criminal justice agencies use NICS to conduct 

background checks on individuals seeking to purchase firearms from an 

FFL or obtain permits to possess, acquire, or carry firearms.8 The mission 

of the FBI’s NICS Section is to enhance national security and public 

safety by providing the timely and accurate determination of a person’s 

eligibility to possess firearms in accordance with federal law. Figure 1 

shows the states where the FBI performs background checks for all 

transactions, as well as POC and partial POC states.

 

8

Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536 (1993). 

Background

Roles and Responsibilities
Page 6 GAO-18-440 Firearm Denials

Figure 1: State Policy for Implementing the Federal Bureau of Investigation’s (FBI) National Instant Criminal Background 

Check System (NICS) as of May 2018

ATF—one of several Department of Justice law enforcement 

components—is responsible for investigating criminals and criminal 

organizations that use firearms, arson, or explosives in violent criminal 

activity, among other things. ATF is also responsible for investigating 

criminal and regulatory violations of federal firearms, explosives, arson, 

and alcohol and tobacco-smuggling laws subject to the direction of the 

Attorney General, as well as any other function related to the investigation 
Page 7 GAO-18-440 Firearm Denials

of violent crime or domestic terrorism that is delegated to ATF by the 

Attorney General.9

U.S. Attorneys prosecute criminal cases brought forward by the federal 

government, prosecute and defend civil cases in which the United States 

is a party, and collect debts owed to the federal government that are 

administratively uncollectible. U.S. Attorneys investigate and prosecute a 

wide range of criminal activities—including, but not limited to, international 

and domestic terrorism, corporate fraud, public corruption, violent crime, 

and drug trafficking. Each U.S. Attorney exercises wide discretion in the 

use of his or her resources to further the priorities of the local jurisdictions 

and needs of their communities. The Executive Office for United States 

Attorneys (EOUSA) represents the 93 U.S. Attorneys that prosecute 

federal cases. Among other things, EOUSA provides guidance, 

management direction, and oversight to USAOs.

During a NICS check, the FBI and POC states use descriptive data 

provided by an individual—such as name and date of birth—to search 

various databases containing criminal history and other relevant records.

These databases include the Interstate Identification Index, the National 

Crime Information Center, and the NICS Indices.

• The Interstate Identification Index includes, among other things, 

information on persons who are indicted for, or have been convicted 

of, a crime punishable by imprisonment for a term exceeding 1 year or 

have been convicted of a misdemeanor crime of domestic violence.

• The National Crime Information Center includes criminal justicerelated records pertaining to wanted persons (fugitives) and persons 

subject to protection orders, among other things.

• The NICS Indices were created for use in connection with NICS 

background checks and contain information on persons determined to 

be prohibited from possessing or receiving a firearm.

NICS checks determine whether or not an individual is disqualified by 

federal or state law from possessing firearms. As shown in figure 2:

 

9

See 28 C.F.R. § 0.130.

Firearms Purchase 

Background Check 

Process
Page 8 GAO-18-440 Firearm Denials

• Federal NICS transactions increased from about 6.5 million in fiscal 

year 2011 to about 8.6 million in fiscal year 2017. Federal NICS 

denials increased from about 77,000 in fiscal year 2011 to about 

112,000 in fiscal year 2017.

• POC state transactions—which include both full and partial POC 

states—increased from about 9.3 million in fiscal year 2011 to about 

17 million in fiscal year 2017.10 POC state denials increased from 

about 45,000 in fiscal year 2011 to about 69,000 in fiscal year 2017.

Figure 2: Federal and State National Instant Criminal Background Check System (NICS) Checks and Denials, Fiscal Years 

2011 through 2017

Note: Thirteen states process all of their own NICS checks—known as point-of-contact (POC) 

states—while 8 states, known as partial POC states, conduct NICS checks related to handguns, while 

the FBI conducts checks related to long guns in those states. POC state figures include handgun data 

from partial POC states, while NICS figures include long gun data from partial POC states.

 

10State background check figures include transactions where a deny status was 

electronically transmitted by the state to NICS. Some states, for example, submit denials 

for permit-related background checks. In addition, the count of background checks from 

each state may not necessarily represent a firearm purchase. For example, a state may 

conduct recurring background checks on every holder of a concealed-carry permit, 

amounting to millions of background checks in the state every year.
Page 9 GAO-18-440 Firearm Denials

If the FBI or state agency completes a background check within 3 

business days and determines that a person should be denied, such 

denials are referred to as “standard denials” and do not involve the 

potential transfer of a firearm. If the FBI or state agency cannot complete 

a background check within 3 business days, the FFL may transfer the 

firearm pursuant to federal law,11 unless state law provides otherwise.12

When the FBI makes a denial determination after 3 business days—

called a “delayed denial”—the FBI determines if the FFL transferred the 

firearm to the individual, and if so, refers these cases to ATF for retrieval 

of the firearm if the individual is confirmed to be prohibited from 

possessing a firearm.

States may establish requirements regarding background check 

processing times, including waiting periods, beyond the federal 

requirement. States also may include state databases in addition to NICS 

indices when conducting background checks. In POC states, FFLs initiate 

a NICS check by contacting one or more state organizations, such as a 

state or local law enforcement agency, to query NICS databases and 

related state files. If necessary, the state organization then conducts any 

required follow-up research.

States may use different methods to conduct background checks. 

Examples of these varying methods include the following:

• Instant Check: Requires an FFL to transmit a buyer’s application to a 

checking agency by telephone or computer. The agency is required to 

respond immediately or as soon as possible.

• Purchase Permit: Requires a buyer to obtain, after a background 

check, a government-issued document (such as a permit, license, or 

identification card) that must be presented to an FFL before the buyer 

can receive a firearm.

 

1118 U.S.C. § 922(t)(1)(B)(ii).

12States can establish their own firearms laws, such as additional prohibiting categories or 

additional time frames for completing checks before a dealer may transfer the firearm. If 

the state is a non-POC state and the FBI conducts the check, the FBI will provide the FFL 

with the allowable transfer date under federal law and the FFL will use state guidelines for 

when a firearm transfer may take place. Pursuant to 28 C.F.R § 25.9, the FBI can 

continue to research the transaction for potentially prohibiting information for up to 90 days 

at which time information related to the transaction is to be destroyed to comply with 

federal record retention requirements.
Page 10 GAO-18-440 Firearm Denials

• Exempt Carry Permit: State concealed weapons permits, issued after 

a background check, exempt the holder from a new check at the time 

of purchase under an ATF ruling or state law.

• Other: Requires an FFL to transmit an application to a checking 

agency, which delays transfer until a waiting period expires or the 

agency completes a check.

After a federal NICS denial, ATF can take enforcement actions through 

criminal investigation and referral for prosecution to a USAO, as making 

false written statements on the ATF Form 4473 is a crime punishable as a 

felony under federal law by up to 10 years in prison and up to a $250,000 

fine.13 Any fines that result from a firearm denial are criminal fines 

assessed through prosecution as part of a plea agreement or 

sentencing.14 ATF does not have the statutory authority to issue fines or 

take any civil action against individuals whose firearm applications are 

denied and are suspected of providing false information during the 

attempted purchase.

For federal denied transactions, the FBI’s NICS Section sends 

information about each denial to ATF’s DENI Branch. The DENI Branch is 

responsible for researching each transaction to determine whether the 

case should be referred to one of ATF’s 25 field divisions for possible 

investigation. The DENI Branch is to refer all delayed denial cases—

which may require recovery of a firearm—and standard denial cases that 

meet USAO investigative referral criteria for each corresponding judicial 

district.15 An ATF NICS coordinator in each field division is to distribute 

 

13See 18 U.S.C. §§ 922(a)(6), 924(a)(2), and 3571(b)(3). A copy of the ATF Form 4473 is 

included in appendix II.

14Generally, a plea agreement is a negotiation between the criminal defendant and his 

attorney on one side and the prosecutor on the other, in which the defendant agrees to 

plead “guilty” or “no contest” to some crimes, in return for reduction of the severity of the 

charges, dismissal of some of the charges, the prosecutor’s willingness to recommend a 

particular sentence, or some other benefit to the defendant.

15According to ATF Order 3140.1A (Denial Enforcement and NICS Intelligence Branch 

Referrals and Investigations, August 9, 2017), ATF field divisions are required to annually 

review the referral guidelines agreed upon with U.S. Attorneys to better ensure that the 

DENI Branch would refer only cases to the field divisions that the USAO would likely 

consider for prosecution. ATF Order 3140.1A canceled ATF Order 3140.1 (Denial 

Enforcement and NICS Intelligence Branch Referrals and Investigations, November 12, 

2014), which had substantially similar language related to annual review of referral 

guidelines.

Federal Process After a 

Firearm Denial

Investigations
Page 11 GAO-18-440 Firearm Denials

the referred denial cases to the appropriate field office within each field 

division.

In addition to recovery of a firearm for delayed denial cases, all firearms 

denial investigations may involve verifying the purchaser’s prohibited 

status, gathering relevant supporting documentation such as mental 

health or court files, and communicating with prosecutors regarding the 

prosecutorial merit of the case, according to ATF officials.16 Figure 3 

shows the general NICS background check process when purchasing a 

firearm from an FFL in either a NICS or POC state.

Figure 3: National Instant Criminal Background Check System (NICS) Process for a Firearms Purchase

Among the denials that ATF investigates (delayed and standard), each 

field office also determines which cases should be referred to a USAO for 

possible prosecution. If the ATF field office determines that the subject is 

 

16ATF field divisions are to notify the DENI Branch, which forwards the information to the 

FBI, when an investigation demonstrates that a person was wrongfully denied and correct 

the record.

Prosecutions
Page 12 GAO-18-440 Firearm Denials

a prohibited person and local prosecutorial guidelines are met, the field 

office may refer the case for prosecution. ATF agents may discuss 

potential referrals with prosecutors to try to obtain USAO acceptance 

before ATF formally refers a case for possible prosecution. A case that is 

not deemed appropriate for federal prosecution may be referred to a state 

prosecutor. If the U.S. Attorney decides to prosecute, an arrest is made or 

a warrant is issued. Figure 4 shows the general process for the 

investigation and prosecution of standard firearms denials.

Figure 4: Process for Investigating and Prosecuting Firearms Denials

Note: The process for investigating a firearm denial may vary between federal and state jurisdictions, 

and from state to state. This graphic represents a general framework.

POC states vary in their procedures and standards for investigating and 

prosecuting persons denied firearms transactions. For example, these 

states may or may not investigate and prosecute prohibited persons who 

violate state gun control laws. In some states, the agency conducting 

background checks notifies the state or local police, depending on which 

has jurisdiction, where the transaction occurred. The local agency is then 

responsible for investigating and assisting in the prosecution of the case 

by state or local prosecutors. Other states have units with statewide 

jurisdiction that screen cases before deciding whether a referral should be 

made to a state police trooper or local law enforcement agency for 

investigation. A POC state may also refer denials for further investigation 

to the nearest ATF field office. In POC states, a firearm retrieval 

associated with a delayed denial may be handled by local law 

enforcement, a statewide firearms unit, or ATF. State and local 

State Processes After a 

Firearm Denial
Page 13 GAO-18-440 Firearm Denials

prosecutors, whether the district attorney, county or city prosecutor, or the 

state Attorney General’s office, represent the state for cases arising under 

state law. Occasionally, federal and state law may prohibit similar types of 

criminal conduct, allowing both federal and state prosecutors to pursue 

the case.

In fiscal year 2017, ATF referred about 13,000 firearms denials to its field 

divisions for investigation, of which USAOs had prosecuted 12 cases as 

of June 2018. In March 2018, the Attorney General issued a memo that 

directed all United States Attorneys to enhance prosecution of cases 

involving individuals who make false statements on the ATF Form 4473. 

Officials from 10 of our 13 selected POC states said that they do not 

investigate or prosecute NICS denials.

At the federal level, the FBI’s NICS Section referred 112,090 denied 

transactions to ATF’s DENI Branch in fiscal year 2017, of which ATF 

referred 12,710 (about 11 percent) to its field divisions for further 

investigation. The 12,710 referred cases consisted of 3,993 delayed 

denials and 8,717 standard denials. According to ATF headquarters 

officials, the DENI Branch refers all delayed denials to ATF field divisions 

for additional investigation because these cases could potentially require 

the recovery of a firearm that was transferred to a prohibited person. The 

DENI Branch uses investigative guidelines established by USAOs that 

cover 94 judicial districts to determine if standard denials should be 

referred to the respective ATF field division for investigation. USAO 

criteria may include individuals who are violent felons, have an active 

protection order, or have made multiple attempts to purchase a firearm in 

the past after being denied, among other offenses.17 Based on our 

analysis of ATF data, the number of firearms denials the DENI Branch 

referred to ATF field divisions for investigation increased from 5,208 in 

fiscal year 2011 to 12,710 in fiscal year 2017—an increase of 141 

 

17USAO referral criteria are discussed in more detail later in this report.

Federal and Selected 

State Law 

Enforcement 

Agencies Collectively 

Investigate and 

Prosecute a Small 

Percentage of 

Firearms Denials

ATF Referred about 

13,000 Firearms Denials 

to Its Field Divisions for 

Investigation in Fiscal Year 

2017, of Which USAOs 

Have Prosecuted 12 

Cases
Page 14 GAO-18-440 Firearm Denials

percent. We discuss the reported impact of this increase in referrals on 

ATF staff later in the report.

Of the 12,710 referrals ATF sent to its field divisions in fiscal year 2017 

for investigation, USAOs considered 50 cases for prosecution, and 

prosecuted a total of 12 cases (9 delayed denial and 3 standard denial) 

as of June 2018, according to ATF data (see table 1).18 An additional 10 

cases were pending or awaiting prosecution as of June 2018. Overall, 

USAOs filed about 54,000 criminal cases in fiscal year 2016, of which 

about 9,200 involved firearm-related matters.19 According to Department 

of Justice officials, in fiscal year 2017, USAOs also filed about 54,000 

criminal cases, of which about 10,400 involved firearm-related matters.

Table 1: National Instant Criminal Background Check System (NICS) Denial Cases Investigated and Prosecuted, Fiscal Years 

(FY) 2016 and 2017

NICS Investigations and Prosecutions Standard Denials Delayed 

Denials

Total Total

FY 

2016

FY 

2017

FY 

2016

FY 

2017

FY 

2016

FY 

2017

NICS denials Bureau of Alcohol, Tobacco, Firearms and 

Explosives (ATF) referred to its field divisions for investigation 

7,524 8,717 3,543 3,993 11,067 12,710

NICS denials ATF field divisions referred to U.S. Attorney’s 

Offices for prosecution

13 12 32 38 45 50

NICS denials prosecuted 3 3 10 9 13 12a

Source: GAO Analysis of Bureau of Alcohol, Tobacco, Firearms and Explosives data. | GAO-18-440

Notes: In fiscal year 2016, there were 9.5 million federal NICS background checks, of which 119,000 

were denied. In fiscal year 2017, there were 8.6 million federal NICS background checks, of which 

112,000 were denied. Under federal law, a Federal Firearms Licensee may transfer a firearm if a 

background check has not been completed within 3 business days unless state law provides 

otherwise. If the Federal Bureau of Investigation or state agency makes a denial determination after a 

firearm transfer has taken place, it is known as a delayed denial. If the Federal Bureau of 

Investigation or state agency completes a background check within 3 business days and determines 

that a person should be denied, it is known as a standard denial.

a

An additional 10 cases were pending or awaiting prosecution as of June 2018.

 

18In most cases, ATF DENI does not refer denials to field divisions in POC states. This

would include field divisions in California, Florida, Illinois, and Pennsylvania, among 

others. 

19See, Department of Justice, United States Attorneys Statistical Report, Fiscal Year 

2016. Firearm-related figures represent criminal cases in which a firearms offense was 

charged under 18 U.S.C. §§ 922 or 924.
Page 15 GAO-18-440 Firearm Denials

We also asked state officials from states within our six selected ATF field 

divisions whether they investigated and prosecuted these denials.20

Officials from four of these six states said that ATF has not been referring 

firearms denials to them, so investigation and prosecution of firearms 

denials was not being done in their state. State officials from two of the 

six states said that they either occasionally receive referrals from ATF, 

which are investigated and submitted for local prosecution or they are not 

aware whether they receive referrals from ATF because they do have a 

dedicated team to investigate these cases. Officials from all 6 states said 

they have laws that prohibit persons from purchasing and/or possessing 

firearms based on prohibitions, such as a prior felony or misdemeanor 

convictions, but do not have laws that prohibit persons from falsifying 

information on ATF’s form 4473 during the NICS background check. 

These states also cited some limitations for investigating these referrals 

such as lack of statutory authority within their state agency and resource 

constraints.

On March 12, 2018, the Attorney General issued a memo that directed all 

United States Attorneys to enhance prosecution of cases involving false 

statements on the ATF Form 4473, which the memo refers to as “lie-andtry” cases.21 The memo specifically stated that every United States 

Attorney must coordinate with the ATF Special Agent-in-Charge in the 

local district to review and revise, as necessary, local prosecution and 

referral guidelines to ensure vigorous and appropriate prosecution of 

these cases. The memo also stated that these guidelines should place 

particular emphasis on cases against violent persons, including—but not 

limited to—denials involving individuals convicted of violent felonies, 

misdemeanor crimes of domestic violence, or subject to protective orders, 

and denials involving fugitives where the underlying offense is a violent 

felony or misdemeanor crime of domestic violence. Further, the memo 

stated that the review and any resulting revisions should ensure that 

district-specific prosecution and referral guidelines reflect the Department 

 

20We identified the state in each field division that generated the most firearms denials 

and contacted state law enforcement authorities about their policy for investigating and 

prosecuting firearms denials in their states.

21The Attorney General’s memo stated that “criminals and other prohibited persons who 

attempt to thwart the background check process by lying on the required forms threaten to 

undermine this important crime prevention tool. Such conduct cannot be tolerated. We 

must vigilantly protect the integrity of the background check system through appropriate 

prosecution of those who attempt to circumvent the law.” 

Attorney General Memo to 

Enhance Prosecution of 

Persons Denied Firearms 

Purchases
Page 16 GAO-18-440 Firearm Denials

of Justice’s renewed commitment to reducing violent crime. The memo 

required that all United States Attorneys certify that the review has been 

completed and all necessary adjustments made within 45 days.

According to EOUSA officials, as of early May 2018, about 90 percent of 

USAOs had coordinated with their respective ATF field divisions to 

discuss revisions in USAO referral guidelines for standard denial cases. 

The officials added that in response to the Attorney General’s memo, 

some USAOs narrowed criteria to focus resources on particular denials, 

such as those involving an attempted purchaser with a history of violent 

crime, or prioritized denials with recent prohibitions, such as a domestic 

violence conviction in the past year. In other cases, ATF officials said that 

USAOs broadened criteria, which may result in more potential cases from 

which to select for investigation and referral for prosecution. ATF officials 

also said that some USAOs added investigation referral criteria (for 

individuals prohibited from possessing firearms) to include elements 

outside the list of federal prohibitors, such as denied individuals with ties 

to gang activity or terrorism. These attributes outside of NICS prohibiting 

categories would require further investigation at the local level by ATF, 

according to officials. While ATF officials have the expectation that the 

revised criteria would increase the overall workload on ATF field divisions, 

ATF officials said that it is too early to discern how these changes will 

impact ATF and the number of denial cases prosecuted by USAOs. 

EOUSA officials suggested that firearm-related prosecutions may well 

increase in the future, but added that any increase that results does not 

necessarily mean that firearms denial prosecutions would increase.

Officials from 10 of our 13 selected POC states said that they do not 

investigate or prosecute any NICS denials, sometimes citing resource 

availability or the lack of state statutes as the reason. Officials from these 

10 states said that while their state does not investigate or prosecute 

firearms denials, their state may take other actions following a denial. 

These possible actions may include informing local jurisdictions of the 

denial for possible investigation, and possible arrest if the denied 

individual has an active warrant. Other actions cited include revoking a 

state firearms owner identification card and possibly seizing any firearms; 

informing ATF of a delayed denial so ATF can retrieve the firearm; and 

providing the information on each denial to the FBI for input into FBI 

databases used to perform NICS checks.

Officials and data from the remaining three POC states—Oregon, 

Pennsylvania, and Virginia—indicate that these states investigate a high 

Ten of 13 POC States Do 

Not Investigate Firearms 

Denials, But the 

Remaining 3 Investigate a 

High Percentage of 

Denials
Page 17 GAO-18-440 Firearm Denials

proportion of firearms denials. These states have statutes that prohibit 

providing falsified information on a state or federal firearms form as well 

as statutes that penalize the attempt to purchase firearms by individuals 

prohibited from such purchases.22

Oregon: Prior to 2014, the state generally did not investigate firearms 

denials, according to state officials. In 2014, the state changed its policy 

based on concerns about firearm-related crimes. Specifically, beginning 

in late 2014, Oregon began investigating all firearms denials, which 

resulted in more than 2,500 firearms denial investigations in both 2016 

and 2017. According to state data, there were between 2,000 and 2,400 

firearms denials annually from 2011 to 2013. According to the two Oregon 

county prosecutors we interviewed, from late 2014 through 2017, their 

offices accepted about 141 of the more than 700 firearms denial 

investigations referred to their offices, with most prosecuted successfully.

Pennsylvania: Prior to 2014, the state investigated a relatively small 

percentage of firearms denials per year using risk-based criteria, 

according to state police officials. In 2014, the state changed its policy to 

investigate all firearms denials. According to state police reports, in 2016, 

approximately 6,500 denial cases were referred for investigation, of which 

about 1,600 were referred for prosecution and 356 resulted in convictions. 

For 2017, the state reported that approximately 5,500 denial cases were 

referred for investigations, of which 1,907 investigations were referred for 

prosecution, resulting in 472 convictions.

 

22See e.g., Or. Rev. Stat. § 162.075 (under Oregon law, a person commits the crime of 

false swearing if the person makes a false sworn statement or a false unsworn 

declaration, knowing it to be false which is a Class A misdemeanor), Or. Rev. Stat. § 

166.425 (under Oregon law, a person commits the crime of unlawfully purchasing a 

firearm if the person, knowing that he/she is prohibited by state law from owning or 

possessing a firearm or having a firearm under the person’s custody or control, purchases 

or attempts to purchase a firearm, which is a Class A misdemeanor). 18 Pa. Cons. Stat. § 

6111 (under Pennsylvania law, any person, purchaser or transferee commits a felony of 

the third degree if, in connection with the purchase, delivery or transfer of a firearm 

knowingly and intentionally makes any materially false oral statement; makes any 

materially false written statement, including a statement on any form promulgated by 

Federal or State agencies; or willfully furnishes or exhibits any false identification intended 

or likely to deceive the seller, licensed dealer or licensed manufacturer), Va. Code Ann. § 

18.2-308.2:2(K) (under Virginia law, any person that willfully and intentionally makes a 

materially false statement on the consent form required under Virginia law for certain 

firearm transactions or on such firearm transaction records as may be required by federal 

law, shall be guilty of a Class 5 felony). For more information on state firearms-related 

statutes see appendices III, IV and V. 
Page 18 GAO-18-440 Firearm Denials

Virginia: Virginia has investigated firearms denials since 1989, according 

to state officials. Virginia does not refer all firearms denials for 

investigation, but instead uses risk-based criteria to refer a subset of 

prohibited categories for investigation, according to these officials.23 The 

number of referrals for investigation in Virginia has increased from about 

770 in 2011 to around 1,700 in 2016 and 2017. Virginia prosecutors we 

interviewed in three jurisdictions from localities where a high volume of 

firearms denial referrals occur said they tend to work with Virginia state 

troopers who specialize in denial investigations and reported high 

prosecution rates for the cases they accept.24 The prosecutors noted that 

most convictions do not go to trial and are reduced to less severe 

violations and most of the penalties imposed tend to be probation, but 

there is the occasional jail term. For example, one Virginia prosecutor 

said that jail sentences are rare, but for a felon with a record of violence, 

sentences of 7 to more than 24 months in jail have been imposed.

Unlike federal denial investigation referrals where about 30 percent of the 

total is for delayed denials, the vast majority of investigations and 

prosecutions within these three states are related to standard denials. 

Officials within these states explained that background checks that result 

in delayed denials are fairly uncommon. According to Pennsylvania 

officials, in Pennsylvania this is because of state background check 

policies that provide additional time, 15 days, to complete background 

checks if a denial is possible, but not clear initially. If the 15-day period 

expires without an approved transfer, the transaction is not denied, but 

the firearm is not transferred. According to officials in all three states, 

FFLs generally will not transfer a firearm until the background checks are 

completed.

 

23These prohibited categories include those with felony indictments, all felony convictions 

including juvenile felonies, misdemeanor crimes of domestic violence convictions, active 

protective orders, and mental health issues, among others.

24According to a state official, Virginia did not have data on the total number of 

investigations referred or accepted for prosecution. 
Page 19 GAO-18-440 Firearm Denials

ATF officials from our six selected field divisions said that investigating 

firearms denials can be challenging because of the high volume and 

require use of their limited resources. ATF has not assessed field 

divisions’ use of warning notices in lieu of prosecution, which could 

provide greater awareness of their deterrence value.25 EOUSA officials 

said that denial cases are difficult to prosecute and offer less value for 

public safety than other prosecutions. State officials said that denial 

investigations compete with other investigations and can be difficult to 

successfully prosecute.

ATF officials from our six selected field divisions—which combined 

received approximately 60 percent of the total standard denials that ATF 

referred to field divisions from fiscal years 2011 through 2017—said that 

investigating firearms denials can be challenging for various reasons. 

ATF field divisions have taken some steps to help mitigate these 

challenges, but ATF headquarters could benefit from enhancing its 

oversight of some aspects of the investigations process.

According to officials from our six selected field divisions, one challenge 

to investigating and prosecuting firearms denials is the high volume of 

firearms denial referrals for investigation that ATF sends to field divisions. 

According to ATF headquarters officials, the DENI Branch has agreed to 

send these referrals to field divisions based on criteria each ATF field 

 

25A warning notice, either oral or in writing, is given to prohibited persons who have 

attempted to purchase a firearm to inform them that they are prohibited from purchasing 

firearms and that the attempted purchase is a violation of federal law. 

ATF and Selected 

States Cited 

Challenges 

Investigating and 

Prosecuting Firearms 

Denials; ATF Has Not 

Assessed Field 

Divisions’ Use of 

Warning Notices

ATF and EOUSA Officials 

Described Denial 

Investigations and 

Prosecutions as High 

Volume and Require Use 

of Their Limited Resources

Federal Denial Investigations
Page 20 GAO-18-440 Firearm Denials

division has established with USAOs within their division. In fiscal year 

2017, ATF’s DENI Branch referred 1,889 delayed denial cases to our six 

selected field divisions—which field divisions are required to investigate—

and 5,435 standard denials cases, which they are to consider for further 

investigation. In the six field divisions, the number of standard denial 

referrals more than tripled from fiscal years 2011 to 2017, and in two field 

divisions, the number of standard referrals in 2017 was more than five 

times the number in 2011. For example, in one field division, the number 

of standard referrals was 166 in 2011 and increased to 1,064 in 2017. 

ATF officials did not know why the number of standard and delayed 

denials had increased during this period.

Officials from all six of our selected ATF field divisions also said that 

investigating denial cases can be time-intensive and require use of their 

limited resources. The officials said that delayed denials can be 

particularly time-intensive because they are required to be investigated 

and the investigation involves a defined set of actions, including the 

possible retrieval of the firearm. For example, these investigations 

typically involve steps to verify the prohibition of the individual, including 

obtaining court records; contacting the individual and FFL that sold the 

firearm; and arranging to retrieve the firearm for those individuals found to 

be prohibited.26 A fiscal year 2016 ATF funding request through the 

annual congressional budget justification submission noted the drain on 

investigative resources because of the requirement for ATF to follow-up 

on delayed denials.27 While the investigation of standard denials also can 

take time, officials from our six selected field divisions said they have 

greater discretion over whether or not to investigate these denials. For 

example, each field division has discretion to screen all or some of the 

standard denials, which can include confirming the person was correctly 

denied and contacting the denied individual and the firearms dealer.

Officials from all of the six selected field divisions said that, in light of the 

high volume and time-intensiveness of denial cases, they have taken 

various steps to prioritize the types of cases to investigate. For example, 

per ATF policy, field divisions prioritize delayed denials over standard 

denials because a prohibited person may be in possession of a firearm.

 

26According to ATF case management records, about 20 percent of the delayed denial 

cases closed in fiscal year 2017 were closed because the individual was found to not be 

prohibited and the denial was made in error.

27Congressional Budget Submission, Bureau of Alcohol, Tobacco, Firearms and 

Explosives, Fiscal Year 2016. 
Page 21 GAO-18-440 Firearm Denials

Officials from three of the six field divisions said that after verifying that 

the applicant is prohibited by reviewing the criminal history attached to the 

case file, they generally close standard denials without further 

investigation. The officials added that while these cases may meet USAO 

criteria and be referred to a field division for investigation, they ultimately 

do not have prosecutive merit based on coordination with prosecutors 

who have experience in prosecuting these cases. Officials from one field 

division said that they typically do not devote resources to verifying the 

prohibited status, and instead triage standard denials based on certain 

criteria, such as a recent violent felony or domestic violence conviction. 

Accordingly, officials in that field division only refer to a criminal 

investigator for further review what they consider the greatest threats to 

public safety. 

EOUSA officials said that USAOs generally do not accept and prosecute 

denial cases that do not involve aggravating circumstances, as these 

cases can require significant effort for prosecutors relative to the short 

length of punishment and may offer little value to public safety because 

the offender does not obtain the firearm, compared to other cases 

involving gun violence.28 The officials added that USAOs filed about 9,200 

firearm-related cases in fiscal year 2016 and about 10,400 in fiscal year 

2017, but that cases involving falsifying information when attempting to 

purchase a firearm generally are only a small fraction of USAO efforts. 

Instead, USAOs primarily focus on cases where persons obtain firearms 

and are prohibited persons or use the firearms in connection with a 

criminal offense.29 According to ATF DENI Branch data, the majority of 

the 25 cases that USAOs prosecuted in fiscal years 2016 and 2017 that 

involved firearms denials (standard and delayed) resulted in reaching 

plea agreements with the defendants.

Federal law provides that it is unlawful “for any person in connection with 

the acquisition or attempted acquisition of any firearm or ammunition from 

a licensed importer, licensed manufacturer, licensed dealer, or licensed 

collector, knowingly to make any false or fictitious oral or written 

statement or to furnish or exhibit any false, fictitious, or misrepresented 

identification, intended or likely to deceive such importer, manufacturer, 

dealer, or collector with respect to any fact material to the lawfulness of 

 

28Additional information on aggravating circumstances is discussed later in this report.

29According to EOUSA officials, USAOs filed a total of approximately 54,000 cases in 

fiscal year 2017.

Federal Prosecutions of 

Firearms Denials
Page 22 GAO-18-440 Firearm Denials

the sale or other disposition of such firearm or ammunition ....”30

Generally, to convict someone for making a false statement on the ATF 

Form 4473, the prosecutor must establish beyond a reasonable doubt 

that the seller was a FFL; the defendant made a false statement or used 

a false identification while acquiring or attempting to acquire a firearm; the 

defendant knew the statement or identification was false; and the false 

statement or identification was intended to, or likely to, deceive a FFL 

about the lawfulness of the firearm sale. EOUSA officials said that 

prosecutions for falsifying information are very challenging because of the 

requirement to prove intent, and can become further complicated 

because the purchaser may not know that he or she is prohibited and was 

not intentionally trying to deceive an FFL. The officials added that these 

cases are not appealing to judges and juries from a public safety 

standpoint. They also said that they find juries questioning why the case 

is being prosecuted in instances when the individual did not get the gun, 

resulting in juries refusing to convict these individuals or jury 

nullification.31

EOUSA officials said that the number of prosecutions of firearms denials 

can be low, particularly in standard denial cases where the system 

worked and the subject did not obtain a firearm, and because of the 

priority often given to other cases involving gun violence. EOUSA officials 

said that delayed denial cases can require less effort to prosecute than 

standard denials, since USAOs do not need to prove an individual’s intent 

in making a false statement in purchasing the firearm, only that the 

prohibited individual is intentionally in possession of a firearm.32 For 

instance, generally, to obtain a conviction for a felon in possession of a 

firearm, the prosecution must establish beyond a reasonable doubt that 

the defendant had previously been convicted of a crime punishable by 

imprisonment for a term of more than 1 year; the defendant knowingly 

possessed a firearm; and the firearm previously passed in interstate 

 

3018 U.S.C. § 922(a)(6).

31“Jury nullification” is a jury’s knowing and deliberate rejection of the evidence or refusal 

to apply the law either because the jury wants to send a message about some social issue 

that is larger than the case itself or because the result dictated by law is contrary to the 

jury’s sense of justice, morality, or fairness.

32Under 18 U.S.C. § 922(g), it is unlawful for certain persons, such as someone who has 

been convicted in any court of, a crime punishable by imprisonment for a term exceeding 

1 year or who has been convicted in any court of a misdemeanor crime of domestic 

violence, to possess or receive any firearm or ammunition which has been shipped or 

transported in interstate or foreign commerce.
Page 23 GAO-18-440 Firearm Denials

commerce. However, officials from our six selected field divisions said 

that as long as a firearm is recovered from the prohibited person and the 

person is cooperative, ATF is unlikely to refer delayed denial 

investigations to USAOs for prosecution.

While officials from all six selected ATF field divisions said that 

investigating the increasing number of denial cases can be time-intensive 

and require use of their limited resources, ATF headquarters has not 

assessed the extent to which field divisions’ use warning notices in lieu of 

prosecutions or whether any policy changes could enhance their use as a 

deterrence tool.

Standard denial cases ATF referred to field divisions for investigation 

grew by more than 200 percent ATF-wide from fiscal years 2011 through 

2017, and by more than 300 percent within our six selected field divisions. 

Moreover, delayed denial referrals grew by about 70 percent ATF-wide 

and by 70 percent within our six selected field divisions during this period. 

Figure 5 shows the increase in standard and delayed denial cases ATF 

referred to its field divisions for investigation from fiscal years 2011 

through 2017.

ATF Has Not Assessed 

Field Divisions’ Use of 

Warning Notices in Lieu of 

Prosecution

Increase in Denial 

Investigations
Page 24 GAO-18-440 Firearm Denials

Figure 5: Firearms Denial Cases Referred to Bureau of Alcohol, Tobacco, Firearms and Explosives Field Divisions for 

Investigation, Fiscal Years 2011 through 2017.

Note: Under federal law, a federal firearms licensee (gun dealer) may transfer a firearm to an 

individual if a background check has not been completed within 3 business days unless state law 

provides otherwise. If the FBI or state agency makes a denial determination after a firearm transfer 

has taken place, it is known as a delayed denial. If the FBI or state agency completes a background 

check within 3 business days and determines that a person should be denied, it is known as a 

standard denial.

At the same time, ATF data show that special agent staffing across our 

six selected field divisions collectively only increased by one special 

agent from fiscal years 2011 through 2017. Officials from five of our six 

selected field divisions said that the increasing number of NICS denial 

cases received from ATF headquarters for investigation has posed a 

burden on staff resources.

Field divisions are required to investigate all delayed denial referrals, but 

have discretion as to how thoroughly they investigate standard denial 
Page 25 GAO-18-440 Firearm Denials

referrals.33 Officials from all six selected field divisions said that, to date, 

one of the ways they have been able to adjust to the increasing volume of 

standard denial referrals has been by closing them with limited 

investigation or sending warning notices to the prohibited individuals. 

However, based on trends over the last 7 years, the number of standard 

and delayed denial referrals for investigation could continue to increase. 

In addition, the Attorney General’s March 2018 memo to USAOs directing 

that the prosecution of false statements on the ATF Form 4473 be 

enhanced may impact how, and how many, denial investigations ATF 

performs.

For all delayed denials, ATF policy requires field divisions to contact 

prohibited persons within three days of being assigned the case to advise 

the person of their prohibition. According to ATF headquarters officials, 

warning notices are intended to inform the individual that he or she is 

prohibited from purchasing a firearm, should not attempt to purchase a 

firearm again, and may be subject to prosecution. For delayed denials, 

ATF policy also requires field divisions to send a written warning notice in 

all instances where the special agent is unable to make contact with the 

prohibited person within 3 business days, or when other circumstances 

exist, such as extraordinary distance or inclement weather. Officials from 

our six selected field divisions said that while warning notices for delayed 

denials are not always delivered in writing, all individuals involved in 

delayed denials receive a warning in some form—e.g., written, oral, or via 

text message—from the ATF special agent investigating the denial. 

Officials from one field division said that they send text messages to 

denied purchasers in lieu of warning letters because they are less 

intimidating to prohibited persons, the texts save time and money, and 

are more effective in helping retrieve firearms.

For standard denials, warning notifications are not required. Specifically, 

ATF policy provides that field divisions may send warning notices to 

 

33ATF Order 3140.1A, Denial Enforcement and NICS Intelligence Branch Referrals and 

Investigations, August 9, 2017 Canceled ATF Order 3140.1, Denial Enforcement and 

NICS Intelligence Branch Referrals and Investigations. November 12, 2014. The updated

ATF order delineates the field division’s roles and responsibilities separately for receiving 

and investigating standard and delayed denials. Also, for standard denials, the order 

provides that the investigating special agent will initiate investigative activity within 10 

business days of receiving the referral. The previous order provided that the investigating 

special agent initiate investigative activity within 5 business days. In addition, the order 

provides protocols for the special agent to query ATF’s Automated National Instant 

Criminal Background Check System Referral Application database to determine whether 

the subject was previously denied the purchase of a firearm by the FBI NICS.

Use of Warning Notices
Page 26 GAO-18-440 Firearm Denials

denied persons “where appropriate and in lieu of prosecution.”34

However, in instances where aggravating circumstances exist, such as if 

the prohibited person committed a violent felony or made multiple 

attempts to purchase firearms, ATF policy provides that consideration 

should be given to hand-deliver the notice to the prohibited person. The 6 

selected field divisions varied in the extent to which they sent warning 

notices related to standard denials. Specifically, three of the six divisions 

had established a practice to send notices to all prohibited persons. 

Officials from these three divisions said that such letters are intended to 

(1) educate the denied person that he or she is prohibited from 

purchasing firearms, (2) deter the individual from attempting future 

purchases, and (3) serve as evidence during any subsequent 

investigation or prosecution that the individual knew that he or she was 

prohibited from purchasing a firearm. Officials from one of these field 

divisions also said that the practice of addressing standard denials by 

sending warning notices is a good use of limited resources while 

addressing a public safety concern.

Of the three field divisions that routinely send warning notices for all 

standard denials, two send them via certified mail, while the other sends 

letters via standard mail due to limited resources. According to officials 

from these three field divisions, the costs associated with mailing warning 

notices also includes staff time to locate recipient information and mail the 

letters, in addition to supervisory review, as is done in at least one field 

division. A group supervisor in one of these field division’s sub-offices 

said that while their field division primarily uses certified mail, the suboffice hand delivers these notices for all standard and delayed denials. 

Officials from one of these three field divisions said that they confirm the 

prohibited status of individuals before sending the warning notices, while 

officials at another field division said they do not confirm the prohibited 

status prior to mailing but that the notice includes information on how to 

appeal the denial. These three divisions received an average of about 

800 standard denials in fiscal year 2017.

Officials from the three divisions that do not routinely send warning 

notices for standard denials said that notices are only sent for standard 

denials in rare cases. Such cases can include when there are aggravating 

circumstances. Criminal activity or not cooperating with the ATF—after 

the attempted purchase are examples of aggravating circumstances. 

 

34ATF Order 3140.1A. 
Page 27 GAO-18-440 Firearm Denials

Officials from one field division stated that warning notices were used for 

standard denials by individual agents in the past, but there was no field 

division policy to do so routinely. Officials from another field division said 

that due to limited resources, the decision was made to not send these 

notices, though they said the notices could be an effective deterrent for 

prohibited individuals from trying to possess a firearm or attempting to 

purchase from an FFL. ATF headquarters officials said that under ATF 

policy, the decision whether to send warning notices for all standard 

denials is made by individual field divisions.35 Therefore, they did not 

know the extent to which each of the 25 divisions used this practice.

Standards for Internal Control in the Federal Government call on federal 

managers to design control activities to achieve an agency’s objectives.36

These controls can include using quality information to make informed 

decisions, such as how best to achieve ATF’s objectives given limited 

resources; evaluating ATF’s performance in achieving key objectives; and 

addressing risks, including its limited resources to investigate or 

prosecute denial cases. While ATF policy provides that individual field 

divisions determine their use of warning notices, ATF headquarters is 

uniquely positioned to assess use of the notices across all field divisions. 

Assessing the extent to which ATF field divisions use warning notices for 

standard denials would provide ATF headquarters with greater 

awareness regarding agency-wide efforts to use the notices as a 

deterrence tool in lieu of prosecution. As assessment could also better 

inform ATF as to whether the application of certain practices to all field 

divisions could be a feasible and effective use of limited investigative 

resources, given the small number of standard denial cases prosecuted 

each year, and revise related policies if appropriate.

 

35ATF Order 3140.1A.

36GAO, Standards for Internal Control in the Federal Government, GAO-14-704G 

(Washington, D.C.: Sept. 10, 2014).
Page 28 GAO-18-440 Firearm Denials

State police supervisors in all three states (Oregon, Pennsylvania, and 

Virginia) that investigate denials said investigators are generally assigned 

to denial investigations as their time permits. Supervisors also said these 

investigations are generally considered time consuming and can 

sometimes impact other duties. State police supervisors said that these 

investigations can be disruptive to operations by taking troopers away 

from their core duties, such as traffic enforcement and response, except 

where troopers are dedicated to conducting these investigations. State 

troopers echoed this point, adding that denial investigations are difficult to 

conduct given the amount of documentation needed for prosecution when 

they have other duties. Local law enforcement officials in Oregon and 

Pennsylvania also said that denial investigations are disruptive, as they 

are usually forwarded to officers when they are on patrol, sometimes 

many weeks or months after the firearms background check was initiated.

Investigators in all three states also said they face challenges assisting 

with prosecutions of denied persons, including gathering the necessary 

documentation to prove the individual knew they were prohibited. For 

example, Virginia troopers said that obtaining records on out-of-state 

convictions and mental health prohibitions, and locating documentation 

on older convictions, can be especially difficult. Troopers in Oregon and 

Virginia commented that in their experience, there can be some degree of 

inaccuracy in the criminal records in their state. For example, they said 

that arrests and prosecution results may not be accurately reflected in the 

criminal history of the denied person. When the trooper checks the actual 

record, it is sometimes discovered that the person is not prohibited. A 

Virginia trooper said this is especially common for juvenile convictions.

Oregon and Virginia officials said they have been able to mitigate these 

challenges by utilizing specialized troopers to conduct denial 

investigations. These troopers are taken off line and generally perform 

denial investigations almost exclusively. In both states, these specialized 

troopers conduct a large portion of the denial investigations in these 

states or in designated locations within the state. Virginia State Police 

Selected States Reported 

That Denial Investigations 

Compete with Other 

Investigations and Cases 

Can Be Difficult to 

Successfully Prosecute

State Denial Investigations
Page 29 GAO-18-440 Firearm Denials

officials told us that some areas within police divisions that receive a high 

volume of denials for investigation use specialized troopers that spend all 

or most of their time investigating firearms denials. These Virginia 

troopers reported that they have become more efficient than troopers that 

do not specialize because the repetition of performing multiple 

investigations improves the learning curve and the quality of their 

investigations. Virginia State Police officials said that while any area may 

assign troopers to work exclusively on denial investigations, most areas 

either cannot afford to remove a trooper from road coverage or do not 

investigate enough cases involving persons denied firearms to make it an 

effective use of resources. According to Oregon officials, five specialized 

troopers in the state investigated more than 1,100 of the almost 2,600 

firearms denials referred for investigation in 2016. These troopers 

covered the denials for several metropolitan areas in Oregon and cited 

efficiencies in conducting and referring investigations for prosecution.

State prosecutors we interviewed in the three states that conducted 

denial investigations said the primary challenge in prosecuting denial 

cases is in gathering the evidence needed to prove that the individuals 

knew they were prohibited. They added that the difficulty in gathering 

evidence for certain prohibited categories also make those prosecutions 

more difficult. For example, obtaining records related to old convictions, 

out of state convictions, and mental health prohibitions are common 

challenges. There are also challenges due to record retention policies for 

specific prohibitions. For example, a Virginia prosecutor said that 

prosecuting denials for misdemeanor crimes of domestic violence 

convictions in Virginia that are more than 10 years old is difficult because 

these records may be destroyed under state law after 10 years. Oregon 

state investigators we interviewed said that, under state statutes, 

successfully prosecuting someone for falsifying information on firearms 

purchase forms requires proving that the person “knowingly and willingly” 

falsified information on the form, which can be difficult to prove. One 

Pennsylvania investigator also said that denied individuals may not 

understand the questions on the forms and genuinely believe they are not 

prohibited.

Prosecutors we interviewed who worked with specialized investigators 

reported that they have worked closely with these troopers to facilitate 

successful prosecutions. For example, an Oregon prosecutor we spoke to 

utilizes a case reporting process where the trooper advises the 

prosecutor of the strong cases to be considered for prosecution. This 

allows prosecutors to focus their attention on the cases more likely to be 

successfully prosecuted. In one Virginia county, the prosecutor’s office 

State Denial Prosecutions
Page 30 GAO-18-440 Firearm Denials

provides troopers a checklist of important points the trooper should 

address to make a strong case for prosecution. Virginia prosecutors in 

jurisdictions served by a specialized trooper said that they confer with the 

troopers regularly and are able to successfully prosecute a high 

percentage of the denial investigations these troopers conduct.37

While individuals are denied firearms purchases because they are 

prohibited from possessing firearms under federal or state law, federal 

denial investigations and prosecutions are generally based on additional 

aggravating circumstances. The three states that investigate denial cases 

have established priorities for investigating and prosecuting such cases.

The types of standard and delayed denial cases investigated by ATF field 

divisions and referred to USAOs for prosecution are determined by 

multiple factors, including the prohibiting category (e.g., felony 

conviction), criminal history of the denied individual, USAO investigative 

referral criteria, and the nature of the ATF investigation itself.

• Of the almost 21,000 delayed denials the ATF DENI Branch referred 

to ATF field divisions for investigation from fiscal years 2011 through 

2017, 32 percent were denied for being convicted felons, 23 percent 

for a qualifying misdemeanor crime of domestic violence, and 19 

percent for being an unlawful user of, or addicted to, a controlled 

substance. As discussed earlier, all delayed denials are referred to 

the appropriate field division for investigation.

• Of the almost 36,000 standard denials the ATF DENI Branch referred 

to field divisions for investigation during this time period, 36 percent 

were denied for being convicted felons, 30 percent for a qualifying 

protective order, and 16 percent for a conviction for a qualifying 

misdemeanor crime of domestic violence. For standard denials, 

USAO investigative referral criteria, not the prohibiting category itself, 

 

37We were unable to verify any claimed prosecution rates. 

Firearms Denial 

Investigations and 

Prosecutions Are 

Generally Based on 

Aggravating 

Circumstances in 

Addition to Criminal 

Records

ATF Investigations Most 

Frequently Involve 

Convicted Felons, but 

Aggravating 

Circumstances Are 

Generally Needed for 

Prosecution Referrals
Page 31 GAO-18-440 Firearm Denials

determines which cases are referred for investigation.

From fiscal years 2015 through 2017, the number of delayed denials 

referred to ATF field divisions for investigation increased by 46 percent 

(from 2,742 to 3,993). This increase was driven by cases in which the 

prohibiting category was drug-related, which increased by about 300 

referrals (60 percent increase); involved misdemeanor crimes of domestic 

violence, which increased by about 250 referrals (34 percent increase); 

and involved felony convictions, which increased by about 280 referrals 

(34 percent increase). Also during this period, the number of standard 

denials referred to ATF field divisions for investigation increased by 30 

percent (from 6,715 to 8,717). This increase was driven by misdemeanor 

crimes of domestic violence, which increased by about 626 referrals (62 

percent increase), and felony convictions, which increased by about 659 

referrals (25 percent increase). Cases in which the prohibiting category 

was related to mental health or protection orders also increased by 42 

percent (about 200 referrals) and 21 percent (about 300 referrals), 

respectively. Figure 6 shows the breakdown of investigation referrals by 

prohibiting category from fiscal years 2011 through 2017.
Page 32 GAO-18-440 Firearm Denials

Figure 6: Standard and Delayed Denials Referred to Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Field 

Divisions for Investigation by Prohibiting Category, Fiscal Years 2011 through 2017

The types of denial cases that ATF’s DENI Branch refers to field divisions 

for investigation are determined by the USAO referral criteria established 

in the district in which the purchase took place. Based on our analysis of 

the standard denial referral criteria for the 34 USAO districts that cover 

the six selected ATF field divisions as of February 2017, there are 

similarities in the criteria used across these USAO districts. For example, 

most of the 34 districts direct ATF to refer standard denials for 

investigation if the cases involved recent convictions for violent crimes or 

convictions for misdemeanor crimes of domestic violence. Also, about 

two-thirds of the 34 USAO districts direct ATF to refer cases in which 

prohibited persons have made two or more attempts to buy firearms while 

prohibited. In addition to the 10 prohibitions listed under federal law, other 

referral criteria used by USAO districts include prohibited individuals who 

are also suspected terrorists or associates of suspected terrorists; known 
Page 33 GAO-18-440 Firearm Denials

gang members or members of criminal organizations; or suspected of gun 

trafficking.

The denial cases ATF field divisions refer to USAOs for prosecution 

generally include aggravating circumstances in addition to the factors 

discussed above related to an individual’s criminal history. According to 

ATF officials in one field division, these aggravating circumstances could 

include violent felonies or multiple serious offenses in a short period of 

time, especially if these occurred in close proximity to the timing of the 

attempted firearms purchase. For example, a prohibited person with 

multiple armed robberies or actively involved in gang activity could be 

considered to have aggravating circumstances. The officials described a 

recent incident where an individual was found in possession of PCP three 

times in a span of a couple months, then bought a firearm and fired it at 

an occupied dwelling. This was considered a clear example, and the 

individual was prosecuted for making a false statement as well as illegal 

possession of a firearm stemming from the delayed denial. Additional 

examples provided by ATF officials from our 6 selected field divisions of 

recent cases ATF referred for prosecution include:

• An individual purchased a firearm from an FFL and sold that firearm to 

a prohibited person. The original purchaser was later denied (delayed 

denial) due to a prior drug conviction. The purchaser was charged 

with illegally possessing a firearm, making a false statement in the 

purchase of a firearm, and making a “straw purchase,” which is when 

an individual illegally purchases a firearm on behalf of another person. 

According to ATF, this individual was sentenced to 1 year in federal 

custody and 3 years of supervisory release.

• An individual was charged with making false statements in the 

attempted purchase of a firearm. The individual did not receive the 

firearm as a result of a standard denial. During the investigation, the 

subject was not cooperative, and had an extensive criminal history in 

multiple states dating back 35 years, including several contacts with 

law enforcement on domestic violence and protective orders. The 

subject was charged with falsifying a background check form, to which 

he pled guilty and was sentenced to 12 months in prison.

• An individual under indictment for armed criminal action committed 

first-degree robbery in which he used a woman to set up an exchange 

of sex for marijuana. During the exchange, the subject robbed and 

shot the victim. The subject later attempted to purchase a firearm and 

was able to obtain the firearm as a result of a delayed denial. Later, a 

completed NICS check revealed that he was a prohibited person for 

Aggravating Circumstances Resulting in a 

Prosecuted Firearms Denial Case

An individual attempted to purchase a firearm 

while under indictment for first degree 

robbery, in which the subject used a woman 

to set up an exchange of sex for marijuana. 

During the exchange, the subject robbed and 

shot the victim. The subject was charged with 

two felonies—falsifying information on the 

background check form and illegal possession 

of a firearm while under indictment. The 

subject pled guilty to both charges and was 

sentenced to 24 months in prison and 3 years 

supervisory release. 

Source: Bureau of Alcohol, Tobacco, Firearms and 

Explosives. | GAO-18-440
Page 34 GAO-18-440 Firearm Denials

being under indictment, and was subsequently arrested later that 

week. The subject was perceived as a threat to the community and 

charged with two felonies, falsifying the background check form, and 

illegal possession of a firearm while under indictment. He pled guilty 

to both charges and was sentenced to 24 months in prison and 3 

years supervisory release.

Of the 12 examples from our six selected field divisions provided, 9 

involved delayed denials and 3 involved standard denials. Eleven of the 

12 cases have been completed as of May 2018. Of the 9 cases charged 

in federal court, 1 case was declined by prosecutors, and the other 8 

resulted in guilty pleas. These guilty pleas resulted in penalties ranging 

from time served to 33 months in prison, along with additional 

punishments such as probation, fines, and mandated treatment 

programs. Of the 3 cases charged in state court, 2 resulted in guilty pleas 

and 1 had not been resolved as of May 2018. Of the 10 cases pursued by 

federal and state prosecutors that resulted in guilty pleas, 7 cases 

involved a subject with a history of drug crimes, 6 involved violent crimes, 

and 4 involved domestic violence. Additional information on these case 

examples can be found in appendix VI.

According to officials from our six selected ATF field divisions, standard 

denial referrals may meet USAOs criteria and be referred to a field 

division for investigation, but almost always do not have prosecutive merit 

based on coordination with prosecutors. The officials noted that USAOs 

generally do not accept standard denials that only involve a violation 

related to falsified information. The officials also said that minor crimes, 

such as burglary, from decades ago would likely not be a high enough 

threat for prosecution. For delayed denial cases, officials from the 6 field 

divisions said that if a firearm is retrieved or otherwise recovered from the 

prohibited person—and the person is cooperative—ATF is unlikely to 

refer these investigations to USAOs for prosecution unless there are 

aggravating circumstances.
Page 35 GAO-18-440 Firearm Denials

The types of denial cases that are referred for investigation in Oregon, 

Pennsylvania, and Virginia are determined in part by the priorities the 

states have set for such referrals. For Oregon and Pennsylvania, which 

investigate all firearms denials, these priorities include cases involving 

stolen guns, purchasers with active warrants, active protection orders, 

and prior felony convictions. In these states, convictions of a crime 

punishable by more than one year (i.e. felony convictions) are the most 

common reasons for denial. Virginia investigates a subset of all denials 

based on risk, and has a policy to prioritize denials that is similar to 

Oregon and Pennsylvania—active warrants, active protection orders, as 

well as mental health issues.

According to Virginia state police officials, denials can be referred for 

investigation if they involve one or more of a set of prohibiting 

categories.38 In 2017, these amounted to about 50 percent of the almost 

3,600 denials recorded. Virginia state police officials said that 

investigations tend to be handled in the order they arrive, regardless of 

prohibited category. Two troopers said that Virginia residents with 

exclusive Virginia criminal histories jump to the top of their lists because 

the records for these individuals will be easiest to obtain. The 

investigators in these Virginia jurisdictions said they tend to refer most of 

their investigations for prosecution, regardless of the prohibited category, 

if there is evidence to support the falsified information charge. 

Pennsylvania investigators and supervisors generally said that no priority 

is given to the denial investigation referrals they receive. They said 

 

38According to Virginia state police officials, prohibitions that trigger an automatic 

investigation in Virginia include felony conviction, including juvenile felony conviction, or 

felony indictment; misdemeanor crime of domestic violence; protective order; involuntary 

mental health treatment; nonimmigrant or illegal alien; and dishonorable discharge from 

the military.

Oregon, Pennsylvania, 

and Virginia Investigate a 

Large Proportion of 

Firearms Denials and 

Prioritize Certain 

Prohibitions, but a Small 

Number are Prosecuted

State Investigations
Page 36 GAO-18-440 Firearm Denials

investigations tend to be handled on a first in first out basis, regardless of 

the prohibiting category of the denied person. One supervisory trooper 

said that since these investigations are usually sent to the field 2 to 3 

months after the transaction has occurred, they are generally considered 

low priority when compared to assaults, robberies, and other crimes a 

trooper investigates. Oregon state police management and troopers told 

us they prioritize cases involving stolen guns, purchasers with active 

warrants, active protection orders, and prior felony convictions. Local law 

enforcement agencies that investigate denial cases in Oregon told us 

they do not prioritize any cases—except for active warrants—handling 

them in order as they are received.

Investigators in all three states said that the criminal histories of those 

investigated tend to be minor. For example, outside of the prohibiting 

offenses that led to persons being denied, most of these individuals’ 

criminal histories tend to consist of old prohibiting offenses like nonviolent felonies, or drug possession, with few gun violations noted. 

Investigators in these three states said that this may be because 

individuals with the most severe criminal histories do not attempt to 

purchase firearms through FFLs. However, one investigator said that 

individuals who were denied based on misdemeanor crimes of domestic 

violence tend to have multiple charges in their background.

State investigators said prosecutors’ interest or willingness to prosecute is 

a key determinant for whether a case is referred for prosecution. One 

investigator also said he may check with prosecutors early in an 

investigation to determine the likelihood of prosecution. According to 

Oregon troopers, denial investigations that are recommended for 

prosecution often involve convictions for felonies, misdemeanor crimes of 

domestic violence, and restraining orders. The troopers said that the 

strength of the case—including the adequacy and availability of proof the 

individual knew he or she was prohibited and falsified information—

determines which cases are referred to prosecutors.

Prosecutors from all three states said that they generally pursue cases 

against individuals who have indications of violence, including protection 

orders, domestic violence, and felony convictions. Individual prosecutors 

also identified specific prohibiting categories, based on public safety 

concerns, as their priorities for prosecution. An Oregon prosecutor said 

there is a good public safety argument for prosecuting denials based on 

domestic violence, mental health, and felony prohibitions when there is 

probable cause. However, for other prohibiting categories, such as being 

on probation or being a drug user, the officials said that prosecuting these 

State Prosecutions
Page 37 GAO-18-440 Firearm Denials

denial cases is not very useful based on the amount of effort required to 

prosecute. A Virginia prosecutor cited domestic violence and protection 

orders as being prosecuted most often. A Pennsylvania prosecutor said 

that his county prosecutes most of the referrals it receives, with denials 

for multiple instances of driving under the influence, mental health, and 

domestic violence being the most common.

State prosecutors we interviewed also said the cases they accept for 

prosecution may be influenced by the fact that certain types of cases are 

harder to prove. For example, they said that denials involving mental 

health, drug users, and misdemeanor crimes of domestic violence are 

often harder to prove, due in part to the difficulty in obtaining related 

records. The officials added that cases involving out-of-state and older 

convictions are also not prosecuted as often as other cases due to the 

difficulty in obtaining records. State prosecutors also said that there are 

certain circumstances where prosecutors are reluctant to pursue 

prosecution—such as cases where prohibitions occurred as a juvenile—

where a firearms denial conviction would establish an adult criminal 

record where no criminal record had previously existed.

According to the prosecutors we contacted, the criminal histories of 

denied individuals generally involved minor violations other than the 

prohibiting offense. Prosecutors said the criminal history of the individual 

can play a role in whether felony charges are filed, as opposed to 

misdemeanor charges, and for sentencing. For example, one Virginia 

prosecutor said that he will file felony charges for a denial case only for 

cases in which an individual was denied based on an active protection 

order or serious felony in his county. Another Virginia prosecutor said that 

there is consideration of both criminal history—convictions for violent 

felonies or misdemeanors, especially—as well as multiple arrests where 

no conviction resulted, when deciding whether to charge the denied 

person with a felony or misdemeanor. The prosecutor noted, however, 

that denial cases tend not to be violent felons or hardened criminals. 

According to a Pennsylvania prosecutor, almost all cases are ultimately 

charged with misdemeanors. The prosecutor noted, however, that the 

state recently brought multiple felony charges against a person who was 

denied a firearms purchase based on a murder conviction in 1973.

These prosecutors also stated that they often try to plead denial cases 

whenever possible, as these cases often do not result in convictions 

when they go to trial. For example, a prosecutor in Pennsylvania told us 

about one denial case that went to trial where the jury found the denied 

person not guilty. The defendant was prohibited from purchasing a 
Page 38 GAO-18-440 Firearm Denials

firearm based on convictions for repeatedly driving while under the 

influence, a misdemeanor with a potential prison term of 5 years in that 

state. The attorney said the jury believed that it was a pointless 

prosecution for a firearm’s denial offense. In Virginia, one prosecutor also 

described a case where a person was denied because of a mental health 

prohibition, and the person was found not guilty of the charges of 

falsifying information when attempting to purchase the firearm. He 

attributed this to a sympathetic defendant and jury reluctance to impose a 

criminal conviction on an individual without a criminal record.39

Further, state officials said that the penalties handed down when denied 

individuals are convicted tended to be minor. The Oregon prosecutors 

said that common penalties are fines (usually in the hundreds of dollars) 

and probation ranging up to 1 year depending on the criminal background 

of the denied person. According to a Pennsylvania state police official, in 

some instances the charges are pled down to a lesser violation, such as 

disorderly conduct, which result in an approximately $300 fine. The two 

Pennsylvania prosecutors we interviewed said that most denial 

prosecutions in their jurisdictions are pled down to misdemeanors, 

eliminating the need for a trial. According to the prosecutors, common 

penalties for misdemeanor convictions include probation and the 

requirement to pay court costs (upwards of $1,000 in one county). The 

prosecutors added that there is an occasional jail sentence for denied 

felons with substantial criminal records that can result in about 1 to almost 

2 years in jail. Prosecutors across the states said that they try to plead 

cases—thus avoiding trial—whenever possible. One Pennsylvania 

prosecutor said that cases without strong evidence that cannot be pled 

are sometimes dropped because conviction would be difficult. Another 

Pennsylvania prosecutor said jury apathy in one strong case led to fewer 

denial cases. Virginia prosecutors said that most convictions are for 

misdemeanor charges and result in probation, fines, and court costs. 

They did say, however, that jail time has resulted for denied individuals 

with violent felony convictions.

At the federal level, the number of firearms denial cases ATF has referred 

to its field divisions for investigation has increased substantially over 

recent years, which has placed a burden on field division resources. At 

the same time, field division resources have not increased, and the 

 

39This case is an example of “jury nullification.” 

Conclusions
Page 39 GAO-18-440 Firearm Denials

number of USAO prosecutions remains low—totaling 12 in fiscal year 

2017. Assessing the extent to which ATF field divisions use warning 

notices for standard denials in lieu of prosecution would provide ATF 

headquarters greater awareness of agency-wide deterrence efforts, and 

better inform the agency as to whether any policy changes are needed.

We recommend that the Deputy Director, Head of the Bureau of Alcohol, 

Tobacco, Firearms and Explosives assess the extent to which ATF field 

divisions use warning notices for standard denials in lieu of prosecution 

and determine whether any policy changes are needed. 

(Recommendation 1)

We provided a draft of this report to DOJ for review and comment. DOJ 

concurred with our recommendation to ATF and provided technical 

comments, which we incorporated in this report where appropriate.

We are sending copies of this report to the appropriate congressional 

committees, the Attorney General, the Deputy Director, Head of the 

Bureau of Alcohol, Tobacco, Firearms and Explosives, and other 

interested parties. In addition, the report will be available at no charge on 

the GAO website at http://www.gao.gov. 

If you or your staff have any questions about this report, please contact 

me at (202) 512- 8777 or goodwing@gao.gov. Contact points for our 

Offices of Congressional Relations and Public Affairs may be found on 

the last page of this report. GAO staff who made key contributions are 

listed in appendix VII. 

Sincerely yours,

Gretta L. Goodwin

Director, Homeland Security and Justice

Recommendation for 

Executive Action

Agency Comments
Appendix I: Objectives, Scope and 

Methodology

Page 40 GAO-18-440 Firearm Denials

Our objectives in this report were to (1) describe the extent to which 

federal and selected state law enforcement agencies investigate and 

prosecute firearms denial cases; (2) examine the challenges, if any, that 

federal and selected federal and selected state law enforcement agencies 

face in investigating and prosecuting firearms denial cases; and (3) 

describe the circumstances that lead to the investigation and prosecution 

of persons denied firearms.

To describe the extent that federal and selected state law enforcement 

agencies investigate and prosecute firearms denials, we reviewed 

published reports regarding federal and state law enforcement efforts to 

investigate and prosecute firearms denials. For federal efforts, we 

requested data from the Federal Bureau of Investigation’s (FBI) National 

Instant Criminal Background Check System (NICS) regarding firearms 

denials provided to the Bureau of Alcohol, Tobacco, Firearms, and 

Explosives (ATF) by state and prohibiting category for fiscal years 2011 

through 2017. We reviewed the internal controls in place for these data 

and determined that the data were reliable for our purposes. We 

requested and received data from the ATF Automated National Instant 

Criminal Background Check System Referral Application and the NForce 

Case Management System that showed how many of these denials, both 

standard and delayed, were forwarded from ATF’s Denial Enforcement 

NICS Intelligence (DENI) Branch to ATF field divisions, broken out by the 

prohibiting category of the denials.1 This provided us the total count of 

denials that ATF may investigate nationwide. To assess the reliability of 

these data we reviewed internal controls and the data quality assurance 

program of ATF. We determined that these data were reliable for the 

purpose of our reporting objectives.

To examine federal prosecutions of denied persons, we requested 

information from ATF’s case management system that identified the NICS 

cases that were prosecuted, including those instances where a conviction 

was recorded. For state investigations and prosecutions, we selected the 

13 states that perform their own background checks for all firearms 

transactions and searched their state police and state agency websites to 

 

1

The ATF Automated National Instant Criminal Background Check System Referral 

Application is ATF’s database for information relating to all firearm denials received from 

the FBI NICS Section. ATF’s DENI Branch uses the database to refer firearm denial cases 

to ATF field divisions for investigation. NForce is a case management system that 

supports ATF’s law enforcement operations, including opening and closing cases, and 

referring cases for investigation.

Appendix I: Objectives, Scope and 

Methodology
Appendix I: Objectives, Scope and 

Methodology

Page 41 GAO-18-440 Firearm Denials

identify the state’s background check units, or staff associated with this 

function and inquired about their policy regarding the investigation of 

persons denied firearms purchase. From these contacts we determined 

that 10 of these selected states did not perform investigations, while 3 

point-of-contact (POC) states did investigate these denials.

We analyzed data from the state police in Oregon, Pennsylvania and 

Virginia that identified the number of firearms denials recorded, the 

prohibiting category of the denials, and the number of these denials 

referred to state or local law enforcement for investigation. To assess the 

reliability of these data we interviewed knowledgeable individuals about 

the procedures for creating these data, and reviewed the internal controls 

in place within these systems. We determined that this data was reliable 

for the purpose of our reporting objectives. We spoke to state and local 

investigators and prosecutors in these states to discuss the investigative 

processes followed and the frequency of prosecution. Though these 

prosecutors tended to lack hard data on the number of these cases 

prosecuted and the outcome of these prosecutions, they were able to 

share their experiences prosecuting these cases, and to estimate the 

approximate quantity of these cases that have been addressed by their 

offices. We believe their experiences provide an understanding of the 

demands these prosecutions place on prosecutors’ offices and the value 

these prosecutions have for the jurisdiction in question.

To describe the challenges, if any, federal and selected state law 

enforcement agencies face in investigating and prosecuting firearms 

denials, for federal denial investigations, we used the denial referral data 

provided by ATF to identify the field divisions that received the most 

denial referrals for investigation. We found that 6 field divisions received 

about 60 percent of the total ATF standard denial referrals over the 2011 

through 2017 fiscal year period. These six field divisions also received 

more than half of the delayed denial referrals distributed to the 25 ATF 

field divisions over that time period. To assess the reliability of the referral 

data and the case data, we discussed the internal controls in place with 

knowledgeable officials and received a copy of the ATF quality assurance 

plan for review. We determined that the data was reliable for the 

purposes of our reporting objectives.

We contacted officials in these six field divisions and discussed the 

investigative process for standard and delayed denial investigations as 

well as the challenges these investigations posed to the ATF staff in 

these field divisions. We also evaluated ATF’s investigative procedures 

and internal controls in place against the Standards for Internal Control in 
Appendix I: Objectives, Scope and 

Methodology

Page 42 GAO-18-440 Firearm Denials

the Federal Government.

2 We also discussed the types of cases that 

each field division referred to the appropriate USAO for prosecution, and 

were provided detailed examples from ATF headquarters of these denial 

cases for each of the six field divisions. We spoke to EOUSA officials to 

discuss the circumstances that would lead a USAO to prosecute a 

firearms denial and the challenges faced in these prosecutions. For state 

denial investigation challenges we spoke to state troopers and local law 

enforcement to learn about the procedures for conducting these 

investigations, the challenges that investigators face, and how and when 

these firearms denial investigations are referred to prosecutors. We also 

spoke with multiple prosecutors from each of these states and discussed 

their offices’ policies for accepting these denial cases, how often these 

cases were prosecuted in these localities and the general outcome of the 

cases. Though we did not speak to a representative sample of 

prosecutors across our selected states, we believe their views provide 

insights into the types of challenges faced by prosecutors in those states.

To identify the circumstances that lead to investigations and prosecutions 

of firearms denials, we reviewed federal denial investigations by visiting 

the ATF DENI Branch, the office that uses USAO criteria to screen 

federal NICS denials for referral to ATF field divisions. There, we 

observed how denials are screened and discussed internal controls. We 

also requested USAO referral criteria from the 34 USAO districts that 

comprise the six ATF field divisions that received the most denial referrals 

from 2011 to 2017. We also analyzed standard and delayed denial 

referral data that captured the prohibited categories of the referrals to 

those field divisions. Further, we analyzed standard and delayed denial 

case data for the investigations that were referred for prosecution for 

fiscal years 2015 through 2017, and those that were ultimately 

prosecuted. To assess the reliability of the data we discussed the internal 

controls in place for entering the data and the quality assurance plan in 

place after data was entered. We determined that the data was reliable 

for the purposes of our reporting objectives.

Officials from our 6 selected ATF field divisions also provided examples of 

denial cases investigated and referred for prosecution. These case 

examples included the specific circumstances that convinced the field 

division to investigate and refer the case for prosecution. For these 

 

2

GAO, Standards for Internal Control in the Federal Government, GAO-14-704G 

(Washington, D.C.: Sept. 10, 2014). 
Appendix I: Objectives, Scope and 

Methodology

Page 43 GAO-18-440 Firearm Denials

federal denial prosecutions, we identified firearms denial cases in PACER 

and LEXIS for the years 2015, 2016 and 2017 to identify the specific 

circumstances of the cases prosecuted, the statutes used to charge the 

defendants, and the outcome of the cases.3 We also spoke to EOUSA 

officials and discussed the reasons that certain denial cases were 

prosecuted while thousands of others are not. For state denial 

investigation circumstances, we spoke with state and local investigators 

from the three selected states that investigate and prosecute denials and 

discussed the circumstances—to include state priorities, the prohibiting 

category and criminal history of those investigated—that resulted in state 

firearms denial to be referred for prosecution. We also spoke with multiple 

prosecutors from the same states and asked them to describe the 

characteristics of cases they are more likely to prosecute, as well as 

those they are less likely to prosecute. While we did not speak to a 

representative sample of investigators and prosecutors from these states, 

we believe their experiences and viewpoints provide insights into how 

these investigations and prosecutions are conducted and prioritized in 

these states.

We conducted this performance audit from March 2017 through 

September 2018 in accordance with generally accepted government 

auditing standards. Those standards require that we plan and perform the 

audit to obtain sufficient, appropriate evidence to provide a reasonable 

basis for our findings and conclusions based on our audit objectives. We 

believe that the evidence obtained provides a reasonable basis for our 

findings and conclusions based on our audit objectives.

 

3

PACER is an electronic public access service that allows users to obtain case and docket 

information online from federal appellate and district courts. PACER provides access to 

certain criminal complaints, motions, and other case file documents and docket 

information.
Appendix II: Bureau of Alcohol, Tobacco, 

Firearms and Explosives Form 4473

Page 44 GAO-18-440 Firearm Denials

Appendix II: Bureau of Alcohol, Tobacco, 

Firearms and Explosives Form 4473
Appendix II: Bureau of Alcohol, Tobacco, 

Firearms and Explosives Form 4473

Page 45 GAO-18-440 Firearm Denials
Appendix II: Bureau of Alcohol, Tobacco, 

Firearms and Explosives Form 4473

Page 46 GAO-18-440 Firearm Denials
Appendix II: Bureau of Alcohol, Tobacco, 

Firearms and Explosives Form 4473

Page 47 GAO-18-440 Firearm Denials
Appendix II: Bureau of Alcohol, Tobacco, 

Firearms and Explosives Form 4473

Page 48 GAO-18-440 Firearm Denials
Appendix II: Bureau of Alcohol, Tobacco, 

Firearms and Explosives Form 4473

Page 49 GAO-18-440 Firearm Denials
Appendix III: Investigation and Prosecution of 

Firearms Denials in Oregon

Page 50 GAO-18-440 Firearm Denials

This appendix includes information on the investigation and prosecution 

of individuals denied firearms purchases in the state of Oregon.

In the state of Oregon, the Oregon State Police (OSP) Firearms Unit 

serves as the point of contact responsible for conducting background 

checks for firearms transactions. OSP’s Firearms Instant Check System 

(FICS) unit conducts criminal background checks to determine the 

eligibility of individuals attempting to transfer or purchase a firearm. 

Oregon law requires that gun dealers request that the OSP conduct a 

criminal history record check on the purchaser before a firearm is 

delivered to a purchaser.1 Dealers may submit these requests either by 

telephone or online. The FICS unit determines from criminal records and 

other available information whether the purchaser is disqualified under 

state or federal law from completing the transfer or is otherwise prohibited 

by state or federal law from possessing a firearm.

Generally, for gun shows,2 Oregon law prohibits a transferor who is not a 

gun dealer from transferring a firearm unless the transferor requests a 

criminal background check prior to completing the transfer, receives a 

unique approval number from OSP indicating that the recipient is qualified 

to complete the transfer, and has the recipient complete the form for 

transfer of a firearm at a gun show, or completes the transfer through a 

gun dealer.3 Generally, for private firearms sales, Oregon law requires a 

transferor to complete the transfer of a firearm to a transferee through a 

gun dealer.4 Prior to the transfer of the firearm, both the transferor and 

the transferee must appear in person before a gun dealer, with certain 

exceptions, with the firearm and request that the gun dealer perform a 

criminal background check on the transferee.5

 

1

Or. Rev. Stat. §§ 166.412(2)(d), 166.432, and 166.434.

2

Pursuant to Or. Rev. Stat. § 166.432(2)(b), a “gun show” is defined as “an event at which 

more than 25 firearms are on site and available for transfer.” 

3

Or. Rev. Stat. § 166.438.

4 Or. Rev. Stat. § 166.435(2).

5

Or. Rev. Stat. § 166.435.

Appendix III: Investigation and Prosecution 

of Firearms Denials in Oregon

Firearms Background 

Checks
Appendix III: Investigation and Prosecution of 

Firearms Denials in Oregon

Page 51 GAO-18-440 Firearm Denials

Process for Conducting a Background Check

When a FICS background check is requested, Oregon law requires the 

seller to provide information about the firearm—so OSP can ensure it has 

not been reported stolen—and the purchaser in order to conduct a 

criminal history check.6 If the purchaser is qualified, a unique approval 

number is provided to complete the transaction. The dealer then enters 

this number on the Bureau of Alcohol, Tobacco, Firearms, and Explosives 

(ATF) background check form (Form 4473), and a thumbprint form, which 

is attached to the Form 4473 and retained for 5 years. By statute, if OSP 

is unable to determine if the purchaser is approved or denied within 30 

minutes, OSP is required to notify the dealer and provide an estimate of 

when the check will be completed.7 These checks are placed in a 

pended/delayed status until sufficient record information can be obtained 

to complete the request.

Federal law provides that if the FBI or state agency cannot complete a 

background check within 3 business days and make a final determination 

(i.e., proceed or denied), the Federal Firearms Licensee (FFL) may 

transfer the firearm pursuant to federal law, unless state law provides 

otherwise.8 Regardless of the FFL’s decision to transfer or not transfer 

the firearm, OSP will continue to research missing information in order to 

complete the background check request and provide either an approval 

number or notice that the person is denied for the FFL’s records. 

Typically, a case is placed in “pend” status because the record is missing 

information necessary to make a final determination. For example, 

domestic violence charges may not include details about the relationship 

needed to make a determination; state, local, or federal agencies may not 

have the resources to respond in a timely manner to requests for missing 

information; or it may be unclear whether prior charges were a felony or 

misdemeanor.

When a transaction is denied, it is either labeled a Priority FICS Call, and 

is dispatched to the first available trooper or local law enforcement officer, 

or it is labeled a Cold FICS Call, and dispatched to the appropriate OSP 

 

6

Or. Rev. Stat. § 166.412(2)(d)(E).

7

Or. Rev. Stat. 166.412(3)(b).

8

18 U.S.C. § 922(t)(1)(B)(ii). States can establish their own firearms laws, such as 

additional prohibiting categories or additional time frames for completing checks before a 

dealer may transfer the firearm. See Or. Rev. Stat. § 166.412(3)(c).
Appendix III: Investigation and Prosecution of 

Firearms Denials in Oregon

Page 52 GAO-18-440 Firearm Denials

office and next available trooper or local law enforcement officer. Priority 

calls are those that involve a convicted felon, a serviceable warrant, a 

stolen gun, or a restraining/stalking order. Oregon Executive Order 16-12 

requires notification of certain officials after a transaction is denied if the 

prohibited person is on probation, on parole or post-prison supervision, 

subject to a court-issued release agreement or protective order, or 

subject to supervision by a Psychiatric Security Review Board.9 Figure 7 

shows the process for purchasing a firearm from a dealer in Oregon.

Figure 7: Process for Purchasing a Firearm from a Dealer in Oregon

According to OSP officials, 95 to 97 percent of background checks are 

approved and less than 1 percent are denied within minutes of initiation, 

while roughly 3 to 5 percent are placed in pend/delay status. According to 

FICS officials, about 95 percent of pend/delay transactions are ultimately 

approved.

A challenge phone line is available for individuals who have been denied 

or pended and wish to find out the reason, or to challenge a denial 

 

9

Or. Exec. Order 16-12 (July 15, 2016).
Appendix III: Investigation and Prosecution of 

Firearms Denials in Oregon

Page 53 GAO-18-440 Firearm Denials

determination. The gun dealer may be asked to fax the ATF form 4473 

and thumbprint form to the FICS Unit to assist in the challenge process. 

The purchaser is provided a reference number upon request to be used 

to appeal the determination through the Federal Bureau of Investigation’s 

(FBI) National Instant Criminal Background Check System (NICS) 

program.

Oregon law prohibits individuals that have been convicted of certain 

offenses from possessing firearms. For example, Oregon prohibits the 

possession of a firearm by any person found to have mental illness and 

subject to a court order for treatment or commitment that prohibits them 

from purchasing or possessing a firearm as a result of mental illness.10

Finally, an individual is prohibited if while a minor, was found to be within 

the jurisdiction of the juvenile court for having committed an act which, if 

committed by an adult, would constitute a felony or misdemeanor 

involving violence and was discharged from the jurisdiction of the juvenile 

court within the last 4 years.11 Table 2 shows Oregon firearms denials by 

prohibiting categories.

 

10Or. Rev. Stat. § 166.250.

11Or. Rev. Stat. § 166.250. A “misdemeanor involving violence” under Or. Rev. Stat. § 

166.250, is defined in Or. Rev. Stat. § 166.470 as a misdemeanor described in Or. Rev. 

Stat. §§ 163.160 (relating to the crime of assault in the fourth degree); 163.187 (relating to 

the crime of strangulation); 163.190 (relating to the crime of menacing); 163.195 (relating 

to the crime of recklessly endangering another person); or 166.155(1)(b) (relating to the 

crime of intimidation in the second degree by intentionally subjecting another person to 

offensive physical contact because of the person’s perception of the other’s race, color, 

religion, sexual orientation, disability, or national origin).

Denials and 

Prohibited Categories
Appendix III: Investigation and Prosecution of 

Firearms Denials in Oregon

Page 54 GAO-18-440 Firearm Denials

Table 2: Oregon Firearm Denials by Prohibiting Category, Fiscal Years 2011 through 2017

Prohibiting Category 2011 2012 2013 2014 2015 2016 2017 TOTAL

Mental Health Adjudicated 52 37 40 45 82 80 71 407

Wanted Person 204 232 257 212 204 156 50 1,315

Convicted of a Felony 663 768 756 544 525 522 303 4,081

Pre-Trial for a Felony Crime 65 80 50 45 62 55 42 399

Restraining Order 54 49 49 25 34 35 21 267

Probation 508 603 507 406 478 399 289 3,190

Conviction of Violent Misdemeanor 

in Last 4 Years

188 251 201 165 209 188 138 1,340

Dishonorable Discharge of Armed 

Forces

1 1 3 0 4 2 1 12

Illegal Alien / Renounced Citizenship 12 7 14 22 31 44 19 149

Convicted Domestic Abuse 159 206 75 64 166 86 76 832

Misdemeanor Disqualifier from 

Another State

8 11 13 2 6 4 4 48

Unlawful User of a Controlled 

Substance

53 88 55 26 61 21 26 330

Other (Federal) 34 98 123 87 45 49 10 446

TOTAL Denials 2,001 2,431 2,143 1,643 1,907 1,641 1,050 12,816

TOTAL Transactions 197,888 259,513 263,283 233,878 262,838 302,726 287,080

Source: Oregon State Police Firearms Instant Check System. | GAO-18-440

From 2011 through 2017, prohibited persons convicted of a felony was 

the most common category among firearm denials, followed by 

individuals on probation, individuals convicted of a violent misdemeanor 

in the previous 4 years, and wanted persons. The two largest prohibiting 

categories, convicted felons and individuals on probation, made up 32 

percent and 24 percent, respectively, of all denials in 2016. In 2017, 

convicted felons fell to 29 percent and individuals on probation increased 

to 28 percent. Wanted persons, the fourth largest group in 2016, made up 

10 percent of all denials that year, but fell to less than 5 percent of all 

denials in 2017. Total firearms denials fluctuated during that span from 

more than 2,400 denials in 2012, to 1,050 in 2017. From 2015 to 2017, 

denials declined each year. Total firearm transactions fluctuated as well, 

but generally increased during that span, increasing from less than 

200,000 in 2011 to over 287,000 in 2017. From 2015 to 2017, denials fell 

by 45 percent while total transactions increased by 9 percent.
Appendix III: Investigation and Prosecution of 

Firearms Denials in Oregon

Page 55 GAO-18-440 Firearm Denials

Oregon has had the policy of investigating all persons denied a firearms 

purchase since 2014. Prior to 2014, OSP only investigated a small 

percentage of persons denied firearms purchases, with a priority placed 

on denied persons with an active warrant.

According to OSP, the FICS unit provides the initial source of information 

in a denial investigation packet, which generally includes but is not limited 

to:

• FICS Transaction Report, which includes information regarding the 

denied transfer, the subject firearm, the point of sale location, the 

denied transferee, and the specific reason for denial;

• Oregon Criminal History data;

• Interstate Identification Index information;

• FBI’s NICS information; and

• Court records, police reports, or other records specific to the individual 

transferee and the denial in question.

Before an investigation is started, OSP must determine whether the 

investigation should be conducted by OSP or local law enforcement. If the 

jurisdiction where the transaction took place has an agreement with OSP 

to receive training on firearms investigations, then the local law 

enforcement agency will conduct the investigation. Otherwise, OSP will 

conduct the investigation. In 2016, 26 percent of denial investigations 

were conducted by local law enforcement, up from 22 percent in 2015. 

The percentage covered by local law enforcement rose to 28 percent in 

2017. In September 2017, three large local jurisdictions agreed to receive 

firearms denial referrals from OSP. For the last three months of 2017 the 

proportion of denials referred to local law enforcement was about 33 

percent.

OSP has five troopers dedicated full-time to FICS denial investigations in 

specific locations across the state. These troopers have essentially been 

pulled off of regular patrol duties and dedicated full-time to firearms denial 

investigations, according to OSP officials. These troopers cover the 

denials for most of the major metropolitan areas in Oregon. Except for the 

highest priority cases, the denial cases are tasked to the dedicated FICS 

troopers if the case falls within their geographical area of responsibility. 

According to Oregon officials, the five specialized troopers in the state 

Investigations of 

Denials
Appendix III: Investigation and Prosecution of 

Firearms Denials in Oregon

Page 56 GAO-18-440 Firearm Denials

investigated more than 1,100 of the almost 2,600 firearms denials 

referred for investigation in 2016.

OSP troopers are required through OSP executive leadership directives 

to investigate each FICS case and submit the case, with all available 

facts and evidence, to the appropriate District Attorney’s Office for review, 

regardless of findings. With this information, the prosecutor makes an 

independent charging decision. When there is a recommendation 

included with the investigator’s report, it is most often to not file charges, 

either because the evidence indicates no crime was committed, or 

because there are specific mitigating circumstances involved in the case. 

Finally, OSP generates a report tracking denial investigations and the 

dispositions of any new criminal cases initiated after the investigation is 

completed. There is no current mechanism for reporting actions taken 

following an investigation and therefore OSP has no data regarding the 

total number of prosecutions accepted and convictions obtained.

According to OSP officials, potential state level criminal conduct 

associated with denied firearm transfers are established in Oregon 

Revised Statutes Chapters 162 and 166. These crimes include but are 

not limited to:

• Or. Rev. Stat. § 162.075 False swearing.

• Or. Rev. Stat. § 166.250 Unlawful possession of firearms.

• Or. Rev. Stat. § 166.270 Possession of weapons by certain felons.

• Or. Rev. Stat. § 166.416 Providing false information in connection with 

a firearm transfer.

• Or. Rev. Stat. § 166.418 Improperly transferring a firearm.

• Or. Rev. Stat. § 166.425 Unlawfully purchasing a firearm.

• Or. Rev. Stat. § 166.435 Firearm transfers by unlicensed persons; 

requirements; exceptions; penalties.

• Or. Rev. Stat. § 166.470 Limitations and conditions for sales of 

firearms.

Generally, Oregon’s Constitution requires the election by districts of a 

sufficient number of prosecuting attorneys (District Attorneys), who are 

the law officers of the state, and of the counties within their respective 

districts, and are to perform duties pertaining to the administration of 

Statutes Used

Prosecution of 

Firearm Denials
Appendix III: Investigation and Prosecution of 

Firearms Denials in Oregon

Page 57 GAO-18-440 Firearm Denials

law.12 District Attorney responsibilities may include, but are not limited to, 

representing the district in felony prosecutions, misdemeanor 

prosecutions, grand jury proceedings, mental commitment hearings, 

family abuse prevention hearings, and juvenile delinquency hearings.

After a trooper completes an investigation, they submit a report to the 

District Attorney’s office. A prosecuting attorney then reviews the case 

and decides whether to charge an individual or individuals with a crime. 

When a case is not prosecuted, a rejection memo is provided to the 

trooper that submitted the report. According to two Oregon county 

prosecutors we interviewed, from late 2014 through 2017, their offices 

accepted about 140 of the more than 700 firearms denial investigations 

referred to their offices, with most prosecuted successfully. According to 

OSP officials, the most common types of cases resulting in convictions 

are related to misdemeanor domestic violence convictions, followed 

closely by prior felony convictions. The officials said that a new working 

group was created in 2016 to review gun relinquishment protocols in 

domestic violence cases, review outcomes and make recommendations 

to improve the safety of domestic violence survivors. With regard to 

sentencing, these prosecutors said common penalties in firearms denial 

cases include fines (usually in the hundreds of dollars), and probation 

ranging up to 1 year, depending on the criminal background of the denied 

individual.

According to OSP, data is not collected on what prosecutions and 

convictions result from investigations by prohibited category. However, 

anecdotally, investigators and prosecutors said the prohibiting category of 

convicted felons is the most common among persons prosecuted for 

FICS denials. Prosecution outcomes are not automatically reported back 

to OSP; each county’s District Attorney must be contacted to obtain their 

agency’s respective case outcome data. Reporting disposition of firearms 

denial cases back to FICS is voluntary and can be done via an online 

form. The participating local agencies are requested to report back to 

OSP on the findings of their investigations; however, this reporting is 

voluntary and according to FICS officials, many agencies do not 

consistently submit this information.

 

12Ore. Const. art. VII, § 17.
Appendix IV: Investigation and Prosecution of 

Firearms Denials in Pennsylvania

Page 58 GAO-18-440 Firearm Denials

This appendix includes information on the investigation and prosecution 

of individuals denied firearms purchases in the state of Pennsylvania.

Since 1998, Pennsylvania has served as a Point-of-Contact (POC) state 

for the National Instant Criminal Background Check System (NICS) 

operated by the Federal Bureau of Investigation (FBI). The Pennsylvania 

State Police (PSP) acts as the state point of contact for NICS for 

determining an individual’s eligibility to acquire, possess, transfer, and 

carry firearms. PSP conducts instant records checks using the 

Pennsylvania Instant Check System (PICS). PICS uses a voice response 

component and a web-based application that allows users to initiate 

firearm and license to carry (also known as concealed carry) background 

check requests.

In Pennsylvania, a licensed importer, manufacturer or dealer is required 

to request by means of a telephone call that the PSP conduct a criminal 

history, juvenile delinquency history and a mental health check prior to 

selling or delivering any firearm to another unlicensed person.1 In 

addition, the firearm may not be transferred until the licensed importer, 

manufacturer or dealer has received a unique approval number for that 

inquiry from the PSP and recorded the date and number on the 

application or record of sale form.2 Generally, for any person that is not a 

licensed importer, manufacturer or dealer who wants to sell or transfer a 

firearm to an unlicensed person, the person must do so at the place of 

business of a licensed importer, manufacturer, dealer or county sheriff’s 

office and follow the procedures related to the transfer of a firearm for a 

licensed importer, manufacturer or dealer.3

Process for Conducting a Background Check

At the point of purchase, once the Bureau of Alcohol, Tobacco, Firearms, 

and Explosives (ATF) Form 4473 background check form is submitted, a 

PICS automated firearms check is initiated. The licensed firearms dealer 

 

1

18 Pa. Cons. Stat. § 6111(b)(3).

2

18 Pa. Cons. Stat. § 6111(b)(4).

3

18 Pa. Cons. Stat. § 6111(c). Generally, there are exclusions related to these procedures 

for transfers between certain relatives and for long guns under 18 Pa. Cons. Stat. § 

6111(c) and (f).

Appendix IV: Investigation and Prosecution 

of Firearms Denials in Pennsylvania

State Firearms 

Background Checks
Appendix IV: Investigation and Prosecution of 

Firearms Denials in Pennsylvania

Page 59 GAO-18-440 Firearm Denials

contacts the PICS unit to determine if the applicant is eligible to purchase 

a firearm. The initial PICS check, which takes about 10 to15 minutes, 

searches the state’s repositories and NICS to identify any criminal history 

records or prohibitions. State databases searched as part of the check 

includes but are not limited to:

• Pennsylvania criminal history records;

• Juvenile records, contained within the criminal history record file;

• Mental Health File, containing involuntary commitment information 

and adjudication of incompetence;

• Pennsylvania Protection From Abuse File;

• Pennsylvania Wanted/Missing Persons File; and

• Bureau of Motor Vehicle records.

If there is no record in the system for the applicant, the transaction can be 

approved automatically without any manual evaluation. The gun dealer is 

provided a unique approval number, which is required to authorize the 

transfer of the firearm.4

Any firearm purchase check that hits on a record is transferred to a PICS 

operator. According to PSP officials, if a PICS operator cannot 

immediately approve or deny a firearm purchase on the phone, the 

firearm purchase application is put in “research” status, and the PICS unit 

has 15 days to determine if the firearm purchase can proceed. During this 

period, the PICS staff attempts to obtain clarifying information from the 

state’s repositories. In many of these instances, the PICS staff needs to 

obtain the final disposition to an arrest, according to PICS officials. If after 

15 days, PICS staff cannot make a determination, the applicant’s status 

becomes “undetermined” and the applicant is not allowed to purchase the 

firearm.

If the automated check comes back with a red flag, the applicant is 

denied the purchase, and the information is sent to the PICS Challenge 

Unit, according to PSP officials. Generally, any person who is denied the 

right to receive, sell, transfer, possess or carry a firearm as a result of the 

procedures may challenge the accuracy of that person’s criminal history, 

juvenile delinquency history or mental health record pursuant to a denial 

 

4

18 Pa. Cons. Stat. § 6111(b)(4).
Appendix IV: Investigation and Prosecution of 

Firearms Denials in Pennsylvania

Page 60 GAO-18-440 Firearm Denials

by the instant records check by submitting a challenge to PSP within 30 

days from the date of the denial.5 If challenged, PSP is required to 

conduct a review of the accuracy of the information forming the basis for 

the denial and has the burden of proving the accuracy of the record. 

Within 20 days after receiving the challenge, PSP is required to notify the 

challenger of the basis for the denial and provide the challenger an 

opportunity to provide additional information for the purposes of the 

review. PSP is to communicate its final decision to the challenger within 

60 days of the receipt of the challenge with the decision containing all of 

the information which formed a basis for the decision.6 If after the 

challenge period the denial is upheld, the PICS Section sends the denied 

firearm application to the local police department or state police field 

station to investigate for falsification of the background check form and 

potentially refer the case for prosecution, according to PSP officials.

In addition to handling firearms denial appeals, the Challenge Unit 

prepares case files for appeals through the Office of the Attorney 

General, testifies at appeal hearings when required, and attends and 

testifies at relief hearings for restoration of firearms rights, which are 

conducted in the various county courts of common pleas throughout the 

state. Finally, the Challenge Unit handles enforcement investigations 

involving individuals who knowingly and intentionally provide false 

information in the attempt to acquire a firearm in violation of Pennsylvania 

law. Figure 8 shows the process for purchasing a firearm from a dealer in 

Pennsylvania.

 

5

18 Pa. Cons. Stat. § 6111.1(e)(1).

6

18 Pa. Cons. Stat. § 6111.1(e)(2). Under 18 Pa. Const. Stat. § 6111.1(e)(3) and (4), if a 

challenge is ruled invalid, the person has the right to appeal the decision to the Attorney 

General within 30 days of the decision and the Attorney General is to conduct a hearing 

de novo in accordance with the Administrative Agency Law for Pennsylvania. The decision 

of the Attorney General may be appealed to the Commonwealth Court by the aggrieved 

party.
Appendix IV: Investigation and Prosecution of 

Firearms Denials in Pennsylvania

Page 61 GAO-18-440 Firearm Denials

Figure 8: Process for Purchasing a Firearm from a Dealer in Pennsylvania

According to PSP officials, in 2017, the PICS conducted about 1.1 million 

background checks for licensed firearm dealers, sheriffs and law 

enforcement throughout the state. Of these requests, 56 percent were 

approved within minutes by the system, while an additional 41 percent 

were approved during the initial check with operator assistance. The 

remaining 3 percent were placed in research status to obtain additional 

information. The Challenge Unit reversed 32 percent of all state 

background check denial challenges, which include licenses to carry, in 

2017.

According to Pennsylvania officials, the state of Pennsylvania does not 

have delayed denials, in which a firearm is transferred to an individual 

before determining whether the individual is prohibited from purchasing or 
Appendix IV: Investigation and Prosecution of 

Firearms Denials in Pennsylvania

Page 62 GAO-18-440 Firearm Denials

possessing a firearm under state or federal law, and the purchase is 

subsequently denied. Generally, under Pennsylvania law, a licensed 

importer, manufacturer or dealer may not sell or deliver any firearm to an

unlicensed person until having received a unique approval number from 

PSP.7

Pennsylvania law prohibits individuals that have been convicted of certain 

offenses from possessing firearms. For example, under Pennsylvania 

law, an individual who has been convicted of driving under the influence 

of alcohol or controlled substance on three or more separate occasions 

within a 5-year period is prohibited from possessing a firearm.8 One 

prosecutor told us that most of the denials in his county stemmed from 

second and third offense DUI convictions. Table 3 shows Pennsylvania 

firearms denials by prohibiting category.

Table 3: Pennsylvania Firearms Denials by Prohibiting Category, Fiscal Years 2014 through 2017

Prohibiting Category 2014 2015 2016 2017 Total

Crime punishable by more than 1 year or misdemeanor punishable by 

more than 2 years

2,519 2,896 2,974 2,436 10,825

Under Indictment 338 265 214 210 1,027

Fugitive from Justice 373 465 506 351 1,695

Unlawful User / Addicted to a Controlled Substance 481 538 541 563 2,123

Adjudicated Mental Health 941 1061 1123 951 4,076

Illegal / Unlawful Alien 10 20 25 17 72

Dishonorable Discharge 6 2 6 1 15

Protection/Restraining Order for Domestic Violence 251 274 294 284 1,103

Misdemeanor Crime of Domestic Violence Conviction 290 322 281 268 1,161

State Prohibitor 298 454 377 304 1,433

Federally Denied Persons File 33 40 32 54 159

Other (Possible Straw Sale, No Valid Photo ID, Dealer Cancelled Sale) 870 330 358 525 2,083

Total Denials 6,410 6,667 6,731 5,964 25,772

Source: Pennsylvania Instant Check System | GAO-18-440

Note: All denials above are standard denials, which do not include the transfer of a firearm. PSP 

recorded zero delayed denials in this time frame, according to PSP officials.

 

7

18 Pa. Cons. Stat. § 6111(b)(4).

8

18 Pa. Cons. Stat. § 6105(c)(3).

State History of 

Denials and 

Prohibited Categories
Appendix IV: Investigation and Prosecution of 

Firearms Denials in Pennsylvania

Page 63 GAO-18-440 Firearm Denials

According to PSP officials, from 2014—when Pennsylvania began 

investigating denials—through 2017, the most common category was 

“persons convicted of a crime punishable by more than one year or a 

misdemeanor punishable by more than two years,” which comprised 42 

percent of all denials. The second most common prohibiting category was 

mental health-related denials, at 16 percent. During this span, the number 

of denials increased from 2014 to 2016, only to decline in 2017.

Since 2014, PICS policy has been to investigate all firearm denials, 

according to PSP officials. Prior to 2013, Pennsylvania used risk-based 

criteria to investigate a much smaller percentage of denials. Criteria used 

included violent felonies, drug trafficking, domestic violence, involuntary 

mental health commitment, active warrants, and straw purchases, among 

others. After PSP began investigating all firearms denials in 2014, 

according to PSP officials, the number of denials remained largely the 

same, but the number of investigations rose from 620 to 4,154. PSP 

officials told us they believe that the policy to investigate all denials acts 

as a deterrent, and that as prohibited individuals learn that investigations 

follow a denial these individuals will not attempt to purchase a firearm.

According to PSP officials, as PICS refers all confirmed firearms denials 

for investigation, PICS does not use screening criteria to make 

determinations about whether firearms denials should be referred for 

investigation, or which denials are more likely to be accepted for 

prosecution. However, PICS does prioritize and determine which denials 

involve more serious criminal violations. According to PSP’s Firearms 

Unit staff, many referrals are not pursued based on the investigator’s 

assessment of the case or a prosecutor’s declination of the case when 

the referral was received.

The PSP partners with local law enforcement to investigate firearms 

denials. Investigations are split up between the PSP and municipal police 

departments based on the jurisdiction of where the applicant submitted 

the firearms purchase. In 2016, 68 percent of cases referred for 

investigation were referred to state police, while 32 percent were referred 

to local law enforcement. In 2017, cases referred to local law enforcement 

increased to 62 percent, while 38 percent were referred to state police. If 

the subject is federally prohibited, a case may be referred to ATF for 

investigation, though based on our analysis this is relatively uncommon. 

In 2015 and 2016, 16 and 5 cases, respectively, were referred to ATF for 

investigation, while in 2017 one case was referred to ATF.

State Investigation of 

Denials
Appendix IV: Investigation and Prosecution of 

Firearms Denials in Pennsylvania

Page 64 GAO-18-440 Firearm Denials

Firearms denials are automatically funneled into a state investigative 

database where an investigation file is created according to PSP officials. 

When a denial is referred to a PSP troop9 for investigation, it is assigned 

to a state investigator if the state police has jurisdiction. If local law 

enforcement has jurisdiction, the PSP troop or PSP investigation staff will 

pass the referral to local law enforcement, according to PSP officials. 

Though some PSP units have investigators that specialize in firearm 

denials cases, generally denial investigations are assigned to the next 

available investigator, according to PSP officials.

After an investigation is assigned, the investigator will review all provided 

documentation and verify that the subject is actually prohibited, according 

to PSP officials. The investigator will then pull an incident number and 

take steps to obtain necessary documentation. The investigator will then 

respond to the location of the violation, review the ATF Form 4473, and 

attempt to interview the employee who handled the attempted 

transaction. Finally, the investigator will locate and interview the subject of 

the denial. Cases are not prioritized for investigation because all firearms 

denials are investigated and are immediately assigned to an investigator 

upon receipt from PICS, according to PSP officials. While no denial 

categories are designated as priority, protective orders may be 

investigated more vigorously when there is an indication of violence, 

according to PSP officials. PSP does not track the length of time or 

resources required for conducting investigations of firearms purchase 

denials, according to PSP officials.

Some jurisdictions may send the subject a letter to notify them that they 

are prohibited and under investigation, according to PSP officials. Other 

jurisdictions may send a letter only when prosecutors decide not to press 

charges, explaining to the recipient why they were denied, that they are 

not eligible to purchase a firearm, and that they could have been 

prosecuted for that reason.

If the case is considered for prosecution, the investigator may meet with 

the District Attorney’s office and review the case for prosecutorial merit, 

according to PSP officials. If prosecution is sought, the investigator will 

type up the charges, process the subject, and arraign. If prosecution is 

approved, the investigator will notify the Firearms Unit and attend all court 

 

9

This is the preferred term for PSP investigative unit; for other states the term “unit” will be 

used.
Appendix IV: Investigation and Prosecution of 

Firearms Denials in Pennsylvania

Page 65 GAO-18-440 Firearm Denials

proceedings. The investigating unit is to inform PSP’s Firearms Unit of the 

outcome of the prosecution.

According to prosecutors and PSP officials, denials are primarily referred 

for prosecution on the basis of the violations under:

• 18 Pa. Cons. Stat. § 4904 - Unsworn falsification to authorities

• 18 Pa. Cons. Stat. § 6111(g)(4) - Sale or transfer of firearms.10

• 18 Pa. Cons. Stat. § 6105 - Persons not to possess, use, 

manufacture, control, sell or transfer firearms.

According to PSP officials, in Pennsylvania, the District Attorney is the 

chief law enforcement officer for each county, and in most instances, 

cases are accepted for prosecution based on their discretion. As such, 

discretionary decisions vary by county, and there are no internal criteria. 

District Attorneys may also refer cases for prosecution to the State 

Attorney General due to lack of resources or a conflict of interest. Trials 

for firearms denials are extremely rare in Pennsylvania, according to 

prosecutors that we spoke with. Only a small percentage of referred 

denials are ultimately prosecuted, mostly due to the difficulty proving the 

suspect “knowingly and willingly” provided false information on the 

background check application, according to PSP officials.

According to PSP officials, the conviction rate for firearms denial cases is 

about 10 percent of all denials referred for investigation. Based on our 

discussions with Pennsylvania prosecutors and PSP Firearms Division 

staff, most cases that are prosecuted result in misdemeanor pleas, rather 

than felony convictions, and common penalties are probation and fines. 

One county prosecutor told us that most convictions reduced to a 

misdemeanor are for “statement under penalty,” a third degree 

misdemeanor. Other cases might be pled down to misdemeanor 

disorderly conduct, which carries a $300 fine, according to PSP officials. 

According to county prosecutors that we spoke with, there is an 

occasional prison sentence for denied felons which can result in about 12 

 

10The subsection cited relates to making any materially false oral or written statement, 

including a statement on any form promulgated by federal or state agencies or willfully 

furnishing or exhibiting any false identification intended or likely to deceive the seller, 

licensed dealer, or manufacturer.

Statutes Used

Prosecution of 

Firearms Denials
Appendix IV: Investigation and Prosecution of 

Firearms Denials in Pennsylvania

Page 66 GAO-18-440 Firearm Denials

months in prison, and have resulted in sentences of almost 2 years in 

prison.

One prosecutor told us the most frequent firearms prohibitor among 

convictions is a crime punishable by greater than 1 year in prison, such 

as a second or subsequent DUI conviction within 10 years, as many of 

those are graded as misdemeanors of the first degree, punishable by up 

to 5 years in prison. Typically, when asked, these individuals are unaware 

of the maximum penalty. Another state prosecutor we spoke with stated 

that the most prosecuted prohibiting categories also involved felony DUIs, 

as well as matters related to mental health and domestic violence. He 

added that, typically, more recent crimes are treated with more severity. 

One county prosecutor told us they prioritize prosecution of persons with 

a history of violent behavior.

According to state police officials, upon conclusion of a prosecuted case, 

the investigator will document the disposition of the court. The entire 

investigative process is documented in a PSP incident report, which 

includes all interviews, queries made, investigative steps taken, and 

consultation with the District Attorney. The result of the investigation is 

then forwarded to the PSP investigation staff. Finally, an email 

summarizing the entire investigative process is sent to the Troop Crime 

Commander, Troop Administrative Manager, and the PSP Firearms Unit. 

Table 4 shows the disposition of firearms denial cases in Pennsylvania.

Table 4: Disposition of Firearm Denial Cases in Pennsylvania, 2014 through 2017

Disposition 2014 2015 2016 2017

Referred for Investigation 4,154 4,661 6,468 5,465

Arrests Made 782 2,312 733 842

Convictions 367 1,091 356 472

Prosecution Declined 569 1,104 1,244 1,435

Source: Pennsylvania State Police. | GAO-18-440

While no annual statistics are recorded at the unit level, according to PSP 

officials, the state of Pennsylvania does track prosecutions resulting from 

firearms denials. In 2016, there were convictions in about half of the 

approximately 730 arrests made and about 6,500 denials referred for 

investigation. This represents a 39 percent increase in referrals over 

2015, but a 67 percent decline in convictions and 68 percent decline in 

arrests. In 2017, the number of cases referred for investigation declined 
Appendix IV: Investigation and Prosecution of 

Firearms Denials in Pennsylvania

Page 67 GAO-18-440 Firearm Denials

by 16 percent to about 5,500. Numbers for 2016 and 2017, including 

arrests, convictions, and prosecutions returned to numbers more 

representative of a typical year, according to PSP officials.11 Neither PSP 

nor the municipal departments track enforcement actions associated with 

investigations, or the specific sentencing results of investigations referred 

for prosecution beyond whether the investigation resulted in a conviction 

or declination.

 

11According to PSP officials, 2015 data for arrests, convictions, and prosecutions declined 

appear elevated compared to the following year due to a significant carryover from 2014, 

which was the first year that PSP investigated all firearm denial cases. According to the 

Firearms Unit, the increase in cases declined in 2016 was due to reduced willingness of 

prosecutors to pursue these cases.
Appendix V: Investigation and Prosecution of 

Firearms Denials in Virginia

Page 68 GAO-18-440 Firearm Denials

This appendix includes information on the investigation and prosecution 

of individuals denied firearms purchases in the state of Virginia.

The Virginia Firearms Transaction Center (FTC), established in 1989, 

performs background checks at the point of sale by accessing state and 

federal databases. The FTC is the federally designated point of contact 

for the National Instant Criminal Background Check System (NICS), and 

is responsible for any investigations of firearms denials. The Virginia 

State Police (VSP) is responsible for conducting background checks 

using VCheck, Virginia’s Internet-based instant background check 

program, and for enforcing state and federal laws related to firearms 

purchases in Virginia. Under Virginia law, generally, a licensed dealer is 

required to obtain written consent and other identifying information—

including but not limited to the name, date of birth, gender, race, 

citizenship, and Social Security number of a potential unlicensed 

purchaser—and provide the Department of State Police with this 

information and request criminal history record information by a telephone 

call to or other communication authorized by the State Police prior to 

selling, renting, trading, or transferring any firearm from the dealer’s 

inventory.1

The FTC provides personnel to conduct transactions onsite at anticipated 

high volume gun shows. Pursuant to Virginia law, the Department of State 

Police are to be available at every firearms show held in Virginia to make 

determinations, in accordance with the procedures set out for background 

checks required for the transfer of certain firearms, of whether a 

prospective purchaser or transferee is prohibited under state or federal 

law from possessing a firearm.2 One prosecutor we spoke with estimated 

that 25 percent of his illegal possession cases are from private sales at 

gun shows. At a gun show, when an individual attempts to purchase a 

firearm from a licensed dealer, the individual has to complete the state 

background check form (SP-65B) and the federal form (ATF 4473) and 

the FTC will conduct a full NICS check. Should the transaction be denied, 

the trooper may arrest the applicant depending on the reason for the 

denial. A Virginia prosecutor explained that in his jurisdiction when two 

private parties, neither of whom is a FFL, initiate a sale outside of the 

state transaction system, troopers may approach the purchaser and ask 

 

1

Va. Code Ann. § 18.2-308.2:2.

2

Va. Code Ann. § 54.1-4201.2.

Appendix V: Investigation and Prosecution of 

Firearms Denials in Virginia

State Firearms 

Background Checks
Appendix V: Investigation and Prosecution of 

Firearms Denials in Virginia

Page 69 GAO-18-440 Firearm Denials

questions related to his or her eligibility to purchase a firearm. If the 

purchaser appears to be prohibited based on their testimony they may be 

subject to arrest as well.

Process for Conducting a Background Check

For transactions conducted through an FFL, the gun dealer submits a 

background check request to VSP via a toll free number or through an 

online application. Upon receipt of the request, VSP reviews the 

applicant’s criminal record information to determine if the applicant is 

prohibited from possessing or transporting a firearm by state or federal 

law. This check includes a review of an applicant’s entire criminal history, 

with no exclusion based on when the prohibiting offense occurred, 

according to FTC officials. For example, a recent prohibiting felony 

conviction is treated the same as the same conviction from decades ago.

The applicant’s information is submitted to the FTC, where it is checked 

against databases at the federal and state level. Information is screened 

through NICS, National Crime Information Center, and the Virginia 

Criminal Information Network. The FTC provides an instant response to 

approve the transaction or place it in delayed, research status. Databases 

maintained by VSP and accessible by the Virginia Criminal Information 

Network include:

• Virginia’s wanted and missing persons files and protective orders;

• Virginia’s criminal history record files; and

• Virginia’s database of adjudications of legal incompetence and 

incapacity, and involuntary commitments to mental institutions.

If the instant VCheck search indicates that the purchaser is approved, a 

unique computer-generated approval number that is required to transfer 

the firearm is provided to the dealer to complete the transaction. If a 

possible identification is made in the state or federal databases, the 

instant check produces a “delayed” status and a review is conducted to 

determine identification and eligibility of the purchaser. If a background 

check enters delayed status, the dealer will be requested to provide 

additional information about the purchaser. The dealer is to be notified 

immediately upon a final determination of eligibility. Pursuant to federal 

law, if the dealer has not been notified of a final determination by the end 

of the third business day, the dealer may complete the sale and transfer 

of the firearm. If a firearm is transferred prior to a final determination of 
Appendix V: Investigation and Prosecution of 

Firearms Denials in Virginia

Page 70 GAO-18-440 Firearm Denials

eligibility, the dealer is requested to notify VSP immediately. When a 

delayed transaction is ultimately approved or denied, the FTC updates 

the dealer on the status of the transaction by telephone or online 

depending on how it was entered. When research efforts have been 

exhausted, if no clear reason to deny is identified, the transaction is 

approved. More than 99 percent of delayed applications are resolved 

before 30 days, according to FTC officials.

All transactions that are not immediately approved and enter delayed 

status are assigned a priority level, based on the possible prohibiting 

category. Virginia investigates a subset of all denials based on risk, but 

prioritizes denials with active warrants, active protection orders, mental 

health issues, and certain felony convictions. According to VSP officials, a 

“priority 1” transaction is a possible hit for mental health reasons, a 

protective order, or a possible wanted subject. A “priority 2” transaction is 

any possible hit in NICS, such as convicted felons and out-of-state mental 

health cases. A “priority 3” transaction is any hit in the Interstate 

Identification Index, or Virginia’s Computerized Criminal History. 

According to VSP officials, convicted felons are normally a priority 3 

unless they appear in the NICS database. A “priority 4” transaction is a hit 

from U.S. Immigration and Customs Enforcement, namely an alien or 

immigrant attempting to purchase a firearm, or a possible request for 

information, such as a Be On The Lookout or Alert notice, from a police 

agency or the Bureau of Alcohol, Tobacco, Firearms and Explosives 

(ATF). According to VSP officials, while a transaction may be given an 

initial priority level, VSP moves some priority 3 and 4 hits to the front of 

the list, such as those involving recent felony indictments or a 

misdemeanor crime of domestic violence. Denial decisions undergo 

supervisory review to verify that the denial is correct and accurate, 

including a review of the police report to document findings, and to ensure 

that the prohibited person’s rights have not been restored, according to 

VSP officials.

According to a VSP official, in practice, there are rarely any transactions 

in Virginia in which a firearm is transferred before the purchaser is 

determined to be ineligible, known as a delayed denial. According to an 

FTC official, there were no delayed denials in the previous 2 years. After 

3 business days of conducting a background check, at which time 

firearms dealers may transfer a firearm, firearms dealers typically contact 

the FTC to notify them of the possible transfer, and ask whether to hold 

the gun for a few more days, according to VSP officials. If the FTC 

believes the purchaser will ultimately be denied, they will suggest the 

firearm be held, but it is up to the dealer to decide whether to do so. The 
Appendix V: Investigation and Prosecution of 

Firearms Denials in Virginia

Page 71 GAO-18-440 Firearm Denials

FTC will also ask to speak with the purchaser to explain that if they 

accept the firearm and are later denied, VSP would have to send an 

officer to retrieve the firearm and charges may be filed against the 

purchaser for illegal possession of the firearm. VSP will then advise that if 

unsure of his or her prohibited status, the applicant should wait until the 

background check is complete.

According to a VSP official, there are advantages to being a point-ofcontact state, such as the ability to provide better service to citizens and 

to build relationships with FFLs that would not be possible as a NICS 

state. For example, VSP conducts training sessions and regular outreach 

to firearms dealers. VSP officials estimate that in 80 percent of cases 

involving firearms purchases on behalf of a prohibited person, sometimes 

referred to as “straw purchases,” leads come from dealers notifying VSP 

of something suspicious. According to VSP officials, straw purchases are 

treated very seriously, and can result in prison sentences of 5 to 10 

years.3 Figure 9 shows the process for purchasing a firearm from a dealer 

in Virginia.

 

3

Va. Code Ann. § 18.2-308.2:2(M) (generally prohibiting the purchase of a firearm with the 

intent to resell or otherwise provide such firearm to any person known or believed to be 

ineligible to purchase or receive from a dealer a firearm for whatever reason as a Class 4 

felony with a mandatory minimum term of imprisonment of 1 year; and if the violation 

involves a transfer of more than one firearm, a mandatory minimum term of imprisonment 

of 5 years).
Appendix V: Investigation and Prosecution of 

Firearms Denials in Virginia

Page 72 GAO-18-440 Firearm Denials

Figure 9: Process for Purchasing a Firearm from a Dealer in Virginia

a

According to a VSP official, in practice, there are rarely any transactions in Virginia in which a firearm 

is transferred before the purchaser is determined to be ineligible, known as a delayed denial.

b

More than 99 percent of delayed applications are resolved before 30 days, according to FTC 

officials.

Individuals denied the right to purchase a firearm may exercise a right of 

access, review, and correction of criminal history record information or 

institute a civil action within 30 days of the denial.4 Typically, after a 

denial, individuals are provided a Virginia Firearms Transaction Program 

brochure or referred to the VSP website for appeal procedures if they 

believe that they are not prohibited by state or federal law from 

purchasing or possessing a firearm. These individuals may contact the 

FTC via phone or e-mail to discuss the determination and provide 

additional information, provide fingerprinting to facilitate future 

transactions, request a correction of record, or institute a civil action. 

Denied persons may also challenge the accuracy of the record in writing 

to the FBI.

 

4

Va. Code Ann. § 18.2-308.2:2(E). 
Appendix V: Investigation and Prosecution of 

Firearms Denials in Virginia

Page 73 GAO-18-440 Firearm Denials

Generally, individuals prohibited from either purchasing or possessing a 

firearm under Virginia law include, but are not limited to:

• any person who has been convicted of a felony, or adjudicated 

delinquent as a juvenile 14 years of age or older at the time of certain 

offenses (including murder, kidnapping, robbery by threat or 

presentation of firearms, or rape), or under the age of 29 who was 

adjudicated delinquent as a juvenile14 years of age or older at the 

time of the offense of a delinquent act which would be a felony if 

committed by an adult;5

• any person who has been acquitted by reason of insanity and 

committed to the custody of the Commissioner of Behavioral Health 

and Developmental Services on a charge of treason, any felony or 

certain offenses punishable as a misdemeanor or certain ordinances 

of any county, city, or town similar to other outlined offenses;6

• any person who is subject to certain protective orders;7 or

• any person who, within a 36 consecutive month period, has been 

convicted under Virginia law of two misdemeanor offenses for 

possession of controlled substance or marijuana without a valid 

prescription or order of a practitioner while acting in the course of his 

professional practice within 5 years from the date of the second 

conviction.8

The top prohibiting categories for individuals denied firearms purchases 

are felony convictions, which comprise 21 percent of all denials from 2011 

through 2017, followed by drug-related prohibitions (19 percent), and 

mental health-related prohibitions (13 percent). One prosecutor we spoke 

with said that denials tend to not involve violent career criminals, and 

typically involve non-violent felonies, such as grand larceny, or involve 

drugs, and most occurred 20 years ago or more. From 2011 to 2017, the 

total number of denials increased from about 2,000 to about 3,600, an 

increase of almost 80 percent, while the total number of transactions 

 

5

Va. Code Ann. §18.2-308.2(A).

6

Va. Code Ann. §18.2-308.1:1(A). 

7

Va. Code Ann. §18.2-308.1:4.

8

Va. Code Ann. § 18.2-308.1:5 (related to prohibition of the purchase or transport of a 

handgun by a person convicted of particular misdemeanors). 

State History of 

Denials and 

Prohibited Categories
Appendix V: Investigation and Prosecution of 

Firearms Denials in Virginia

Page 74 GAO-18-440 Firearm Denials

increased from about 320,000 to about 500,000, an increase of more than 

50 percent. Table 5 shows Virginia firearms denials by prohibiting 

category.

Table 5: Virginia Firearm Denials by Prohibiting Category, Fiscal Years 2011 through 2017

Prohibiting Category 2011 2012 2013 2014 2015 2016 2017 Total

Felony Conviction 520 609 602 492 551 688 706 4,168

Protective/Restraining Order 138 175 202 186 227 261 272 1,461

Misdemeanor Domestic Violencea 80 63 48 401 490 522 487 2,091

Pending Felony Charge/Indictment 68 89 79 89 94 99 111 629

Drug Related Prohibition 363 509 493 500 551 632 740 3,788

Mental Health 235 340 316 308 340 440 496 2,475

Warrant of Arrest 282 306 312 297 337 383 250 2,167

Military Dishonorable Discharge 2 5 2 3 1 0 5 18

Purchaser ID Requirements Not Met 118 131 103 170 213 190 225 1,150

Federal Misdemeanor Disqualifier 76 125 140 98 121 134 142 836

NICS Denied Persons File 34 49 42 32 50 77 69 353

Illegal Alien / Nonimmigrant 35 55 38 63 54 62 66 373

Otherb 50 30 35 22 19 15 15 186

Total Denials 2,001 2,486 2,412 2,661 3,048 3,503 3,584 19,695

Total Transactions 321,166 432,387 479,253 405,838 444,627 505,722 487,846

Source: Virginia Firearms Transaction Center. | GAO-18-440

Note: This table contains consolidated category titles based on FBI denial category titles. State 

prohibiting categories may not correlate directly to federal categories, in part because states have the 

authority to prohibit persons from purchasing firearms based on state-specific disqualifiers. Data for 

“Attempt to Exceed Handgun Limit” has been omitted from totals for 2011-2012.

a

Misdemeanor Domestic Violence denials appear artificially low prior to 2014 due to a legal 

redefinition effective 2014 stemming from the Supreme Court case United States v. Castleman, 134 

S. Ct. 1405 (2014), according to a VSP official.

b

”Other” includes Invalid Purchase Certificate, Attempt to Purchase Handgun by Non-Resident, 

Invalid or Unauthorized Seller ID Number, and Attempt to Exceed Trade Limit.
Appendix V: Investigation and Prosecution of 

Firearms Denials in Virginia

Page 75 GAO-18-440 Firearm Denials

Virginia has investigated firearms denials since its instant check system 

was introduced in 1989. Virginia does not refer all firearms denials for 

investigation, instead using risk-based criteria to refer a sub-set of 

prohibited categories for investigation.9 The following conditions trigger an 

automatic investigation for a firearms denial:

• felony conviction, including juvenile felony conviction, or felony 

indictment;

• misdemeanor crime of domestic violence;

• protective order;

• involuntary mental health treatment;

• nonimmigrant or illegal alien; and

• dishonorable discharge from the military.

All Virginia denial investigations are handled by VSP with the exception of 

some fugitive and warrant-related, protective order, and mental health 

cases, as well as purchases at gun shows, which may involve municipal 

or local police, according to VSP officials. When FTC’s background check 

unit refers a case for investigation involving mental health or protective 

orders (both which are priority 1), the package is sent to both the VSP 

division and the local police department.

According to VSP officials, to initiate a denial investigation, FTC sends 

requests for investigation to the VSP division headquarters, where it is 

referred to the appropriate section where the gun transaction took place, 

then to a state trooper to conduct the investigation. A file with a copy of 

both the federal background form, ATF Form 4473, and the state 

background check form, SP-65, is sent to the investigating trooper. The 

trooper then collects necessary information, such as information about 

the denial from VCheck, the criminal history of the purchaser, and court 

records. As necessary, the investigator verifies the information in the FTC 

file at the FFL, and interviews the subject. Part of the investigation 

involves trying to prove the purchaser “willingly and knowingly” answered 

falsely on the state and federal forms.

 

9

These prohibited categories include those with felony convictions, misdemeanor 

domestic violence convictions, protective orders, mental health issues, and felony 

warrants, among others.

State Investigation of 

Denials
Appendix V: Investigation and Prosecution of 

Firearms Denials in Virginia

Page 76 GAO-18-440 Firearm Denials

Some VSP sections, typically those in more densely populated areas, 

have troopers dedicated exclusively to firearms denial investigations due 

to the higher volume of denials in those areas.

According to VSP officials, every area may assign troopers to work 

exclusively on firearms denial investigations. However, most areas either 

cannot afford to remove a trooper from road coverage availability, or don’t 

investigate enough firearms denial cases to make it an effective use of 

resources. These sections assign denial investigations to troopers on a 

case by case basis.

Prosecutors are often consulted as to whether a case will be prosecuted, 

where the prosecutor comments on the strength of the case based on the 

evidence available, according to investigators and prosecutors we spoke 

with. Investigators told us that prosecutors are generally more agreeable 

to taking on firearms denial cases involving recent felony convictions.

They also said that if the case is accepted for prosecution, the trooper will 

obtain warrants to make an arrest. If the Commonwealth Attorney finds 

that the case does not have prosecutorial merit, the case is closed and 

the name of the Commonwealth Attorney consulted is put in the case 

management system report, according to a VSP official. Table 6 shows 

Virginia denial investigations from fiscal years 2011 through 2017.

Table 6: Virginia Firearm Denials and Investigations, Fiscal Years 2011 through 2017 

2011 2012 2013 2014 2015 2016 2017

Background Checks 321,166 432,387 479,253 405,838 444,627 505,722 487,846

Denials 3,377 3,444 2,412 2,661 3,048 3,503 3,584

Investigations 772 700 961 1,079 1,705 1681 1,703

Percent of Denials 

Investigated

22.9 20.3 39.8 40.5 55.9 48.0 47.5

Source: Virginia State Police | GAO-18-44 

Note: Firearm denial numbers include firearm purchases and concealed handgun permits, according 

to VSP officials.

According to VSP officials, the time spent on denial investigations 

depends on the type of denial, location, and the information needed to 

bring charges or close the case. However, on average a case may 

involve about 4 hours of investigation. Officials in another division stated 

that in-state convictions can range from 4 to 6 hours of investigative work, 

while out-of-state convictions can take significantly more time, from 4 to 
Appendix V: Investigation and Prosecution of

Firearms Denials in Virginia

Page 77 GAO-18-440 Firearm Denials

15 hours. Obtaining records from out of state can be difficult, and can 

take weeks or months. For example, one state requires a fee per 

conviction copy, which requires a check to be mailed, processed, and 

then for the files to be mailed back to the investigator. VSP officials told 

us that cases involving straw purchases can take 50 hours or more, 

however, these cases can result in longer prison sentences of 5 to 10 

years.10 They added that additional time may be spent on search 

warrants, examining video from firearms stores, reviewing phone records, 

and conducting interviews. Further, denial investigations involving 

dishonorable discharges and mental health denials from out of state

typically take the longest to investigate, in part because some states 

won’t release these records for the purpose of prosecution. Locating old 

felony documentation is also a challenge for investigators, according to 

VSP officials.

According to investigators and prosecutors, the most common state 

statutes used for attempted firearm purchases include:

• Va. Code Ann. § 18.2-308.2:2(K) Willfully and intentionally making a 

materially false statement on the consent form;

• Va. Code Ann. § 18.2-308.1:3 (Usually prosecuted as an attempt) 

Prohibition against purchase or possession of a firearm by someone 

involuntarily admitted or ordered to outpatient mental health 

treatment; and

• Va. Code Ann. § 18.2-308.1:4 (Usually prosecuted as an attempt) 

Prohibition against purchase or transport of a firearm by someone 

subject to a protective order.

According to a VSP official, other common statutes include:

• Va. Code Ann. § 18.2-26 Attempt to commit a non-capital felony

• Va. Code Ann. § 18.2-27 Attempt to commit a misdemeanor

 

10Va. Code Ann. § 18.2-308.2:2(M) (generally prohibiting the purchase of a firearm with 

the intent to resell or otherwise provide such firearm to any person known or believed to 

be ineligible to purchase or receive from a dealer a firearm for whatever reason as a Class 

4 felony with a mandatory minimum term of imprisonment of one year; and if the violation 

involves a transfer of more than one firearm, a mandatory minimum term of imprisonment 

of five years). 

Statutes Used
Appendix V: Investigation and Prosecution of 

Firearms Denials in Virginia

Page 78 GAO-18-440 Firearm Denials

• Va. Code Ann. § 18.2-308.1:2 Purchase or possession of firearm by 

persons adjudicated legally incompetent or mentally incapacitated

• Va. Code Ann. § 18.2-308.1:5 Prohibition against someone previously 

convicted of certain drug offenses

• Va. Code Ann. § 18.2-308.2:01 Purchase or possession of firearm by 

a non-citizen not lawfully in the United States

• Va. Code Ann. § 18.2-308.2 Convicted felon in possession of a 

firearm

• Va. Code Ann. § 18.2-308.2:2 (L1) Attempt to solicit or persuade any 

dealer to participate in a straw purchase

• Va. Code Ann. § 18.2-308.2:2 (M) Commit a straw purchase

Virginia’s chief prosecutors, the Commonwealth’s Attorneys, are elected 

at-large for a 4-year term. They are responsible for prosecuting all 

felonies and some misdemeanors, in addition to handling certain civil 

matters. According to a prosecutor we spoke with, Commonwealth’s 

Attorneys offices receive referrals for prosecution directly from state 

troopers.

We interviewed Virginia investigators and prosecutors from four counties, 

including from localities where a high volume of firearms denial referrals 

occur. These prosecutors said they tend to work with Virginia troopers 

who specialize in denial investigations and report high prosecution rates 

for the cases they accept. One investigator with a high referral rate to 

prosecutors told us he benefits from operating in a high-volume, relatively 

compact jurisdiction, while in other parts of the state, investigators may 

have to cross several counties to gather the paperwork needed to 

establish a denial case, interview the purchaser, and make an arrest. 

According to a county prosecutor, a key component of successful 

prosecutions is a willing Commonwealth Attorney because charging 

decisions are at their discretion. An investigator and prosecutor that work 

together stated that in some jurisdictions, attorneys may not welcome 

firearms denial cases, while in other jurisdictions specialized investigators 

working with an attorney willing to prosecute these cases for public safety 

and deterrence value can yield a high prosecution rate.

Two county prosecutors we spoke with said approximately 90 percent of 

firearms denial convictions are pled down to misdemeanors, and the 

penalties imposed tend to include probation or community service, but 

there is an occasional prison sentence. According to investigators and 

State Prosecution of 

Firearms Denials
Appendix V: Investigation and Prosecution of 

Firearms Denials in Virginia

Page 79 GAO-18-440 Firearm Denials

prosecutors we spoke with, some prosecutors prefer to avoid the use of 

fines while others may use them occasionally.

Of the few cases that go to trial, according to prosecutors, most go before 

a judge rather than a jury, and typically involve a felon in possession of a 

firearm, resulting in a felony conviction and likely probation. Judges have 

discretion to reduce sentences, while juries are constrained to issuing 

more severe sentences if they find the defendant guilty, and typically 

hand down more prison time, according to prosecutors we spoke with.

The severity of penalties handed down for firearms denials depends on 

the prohibited category, according to one county prosecutor. Another 

prosecutor said protective order violations tend to be easier to prosecute 

because the records are available and indicate a clear violation. Other 

cases where accurate records are difficult to obtain, such as juvenile 

denials, mental health denials, and out of state cases, prosecutions are 

difficult to prosecute, according to investigators and prosecutors.

One prosecutor told us that a subject’s criminal history also makes a big 

difference as to whether they might receive a harsher or more lenient 

sentence. Several prosecutors we spoke with said that while prison 

sentences are rare, for a felon with a history of violence, sentences of 7 

months to more than 24 months in prison have been imposed. One 

prosecutor told us they typically agree to no prison time on a felony 

conviction unless there are indicators of violence on the record, such as 

destruction of property or assault and battery. If a person has no record, 

the prosecutor would be far more willing to forego a felony and 

sometimes even a misdemeanor, and propose community service 

instead. One prosecutor questioned whether it makes sense to make a 

person a felon over a firearms denial; however, if a person has a 

consistent misdemeanor history of getting into trouble then they would be 

less convinced that this particular offense is out of character and may not 

make any non-felony offers. Prosecutors also may reduce the charges to 

disorderly conduct or providing false information to police during a plea in 

these cases to try to get a conviction, according to one prosecutor.

Data on prosecutions, dismissals, and convictions resulting from 

investigations, are not collected at the state level, and are only accessible 

at the VSP divisions that conduct investigations and the courts where 

they are prosecuted, according to Virginia officials.
Appendix VI: Examples of Firearms Denial 

Cases Referred for Prosecution

Page 80 GAO-18-440 Firearm Denials

Table 7 shows examples of firearms denial cases that our six selected 

ATF field divisions referred to U.S. Attorney’s Offices for prosecution 

during fiscal years 2014 through 2017, including the types of 

circumstances that could lead to referral for prosecution, the range of 

charges filed, and the severity of sentences that resulted. All the cases 

involved 18 U.S.C. § 922(a)(6), falsifying a background check form. While 

all were not ultimately charged under that statute, they were selected for 

investigation by ATF for that reason. Occasionally, federal and state law 

may prohibit similar types of criminal conduct, allowing both federal and 

state prosecutors to pursue the case. U.S. Attorney’s Offices may also 

refer a case to a state prosecutor that is not deemed appropriate for 

federal prosecution.

Table 7: Examples of Firearm Denial Cases Referred for Prosecution

Case Potential 

Prohibiting 

Categories 

(Circumstances of 

Arrest)1 

Type of 

Denial

Charged in 

State/Federal 

Court

Charges Disposition Sentence

1 Felony Conviction 

(probation violation 

and evading federal 

agents)

Delayed Federal 18 U.S.C. § 922(a)(6): 

Falsifying background 

check form

18 U.S.C. § 922(g)(1): 

Prohibited due to prior 

felony

Pled guilty to 18 

U.S.C. § 922(g)(1)

Sentenced to time 

served

2 Convicted Felon 

(straw purchase and 

evading federal 

agents)

Delayed Federal 18 U.S.C. § 922(a)(6): 

Falsifying background 

check form 

18 U.S.C. § 922(g)(1): 

Prohibited due to prior 

felony

18 U.S.C. § 924(a)(1)(A): 

Falsifying forms causing 

FFL to falsify records

Pled guilty to 18 

U.S.C. § 922(g)(1)

1 year federal 

custody and 3 years

supervisory release

3 History of violent 

crime, multiple 

attempts to purchase 

(knowingly used 

expired concealed 

weapons license)

Delayed Federal 18 U.S.C. § 922(g)(1): 

Prohibited due to prior 

felony

Pled guilty to 18 

U.S.C. § 

924(a)(1)(A), False 

statement in 

acquisition of a 

firearm

24 months 

probation with 

conditions, $100 

special

assessment

4 Under indictment for 

robbing and shooting 

victim, involving 

drugs

Delayed Federal 18 U.S.C. § 922(a)(6): 

Falsifying background 

check form 

18 U.S.C. § 922(n): Illegal 

possession of a firearm 

while under indictment

Pled guilty to 18 

U.S.C. § 922(n) 

and 18 U.S.C. § 

922(a)(6)

24 months in prison 

and 3 years 

supervisory release

Appendix VI: Examples of Firearms Denial 

Cases Referred for Prosecution
Appendix VI: Examples of Firearms Denial 

Cases Referred for Prosecution

Page 81 GAO-18-440 Firearm Denials

Case Potential 

Prohibiting 

Categories 

(Circumstances of 

Arrest)1 

Type of 

Denial

Charged in 

State/Federal 

Court

Charges Disposition Sentence

5 Misdemeanor crime 

of domestic violence

Delayed Federal 18 U.S.C. § 922(g)(9): 

Prohibited due to prior 

domestic violence charge

Charges declined 

by prosecutors

No charges

6 Dealing drugs, 

violation of 

restraining order

Delayed Federal 18 U.S.C. § 922(a)(6): 

Falsifying background 

check form

18 U.S.C. § 922(n): Illegal 

possession of a firearm 

while under indictment

Pled guilty to 18 

U.S.C. § 922(n)

3 months federal 

custody and 1 year 

supervisory release

7 Active warrants 

(possible straw 

purchase, drug 

possession)

Standard Federal 18 U.S.C. § 922(g)(3): 

Prohibited due to drugs

18 U.S.C. § 924(a)(2): 

Knowingly possessed 

firearm illegally.

Pled guilty to 18 

U.S.C. § 922(g)(3).

33 months in prison, 

3 years supervisory 

release, $100 

(MPA), 500 hour 

intensive drug 

treatment program

8 Under indictment for 

drug trafficking

Standard Federal 18 U.S.C. § 922(a)(6): 

Falsifying background 

check form 

18 U.S.C. § 922(n): Illegal 

possession of a firearm 

while under indictment

Indicted on additional drug 

charges.

Pled guilty to 18 

U.S.C. § 922(a)(6) 

for lying about 

being under 

indictment

18 months in prison, 

three years 

supervised release

9 Controlled 

substance, domestic 

violence (violent 

criminal history)

Standard Federal 18 U.S.C. § 922(a)(6): 

Falsifying background 

check form 

Pled guilty to 18 

U.S.C. § 922(a)(6)

12 months in prison

10 Misdemeanor crime 

of domestic violence 

and drug use

Delayed State Illegal possession of a 

firearm (state charge for 

misdemeanor domestic 

violence), State charge for 

false purchase

Pled Guilty to state 

charge for false 

purchase

12 months in prison

11 Drug conviction in 

last 5 years (Under 

indictment for state 

firearm and drug 

charges)

Delayed State Illegal possession of a 

firearm and a state drug 

charges

Plea agreement in 

state court. Pled 

guilty to 2 state 

narcotics charges.

60 months 

probation and a 

$1,000 fine for each 

narcotics charge

12 Prior conviction for 

domestic violence

Delayed State Felony falsifying a 

background check form 

(domestic violence)

Not yet resolved State charges

Source: Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and Executive Office for United States Attorneys (EOUSA). | GAO-18-440

Note:”Circumstances of arrest,” indicated in parentheses where applicable, refer to developments 

after the attempted purchase of the firearm.

Cited statutes generally include:
Appendix VI: Examples of Firearms Denial 

Cases Referred for Prosecution

Page 82 GAO-18-440 Firearm Denials

18 U.S.C. § 922(g): Prohibited person possessing or receiving a firearm.

18 U.S.C. § 922(a)(6): Person knowingly falsifying a background check form.

18 U.S.C. § 922(n): Person illegally possesses a firearm while under indictment.

18 U.S.C. § 924(a)(2): Person knowingly violating specific subsections of 18 U.S.C. § 922 resulting in 

fine, imprisonment, or both.

18 U.S.C. § 924(a)(1)(A): Person knowingly making a false statement or representation with respect 

to information required to be kept by a gun dealer.
Appendix VII: GAO Contacts and Staff 

Acknowledgements

Page 83 GAO-18-440 Firearm Denials

Gretta L. Goodwin, (202) 512-8777, goodwing@gao.gov

In addition to the contact named above Eric Erdman (Assistant Director) 

and Anthony DeFrank (Analyst-in-Charge) managed this assignment. 

Daniel Kuhn, James Lawson, Billy Commons, Susan Hsu, Michele C. 

Fejfar, and Eric D. Hauswirth made significant contributions to the work.

Appendix VII: GAO Contacts and Staff 

Acknowledgements

GAO Contact 

Staff 

Acknowledgements

(101828)
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