United States General Accounting Office

GAO Report to the Committee on the

Judiciary, U.S. Senate, and the

Committee on the Judiciary, House of

Representatives

January 1996 GUN CONTROL

Implementation of the

Brady Handgun

Violence Prevention

Act

GAO/GGD-96-22

GAO United States

General Accounting Office

Washington, D.C. 20548

Comptroller General

of the United States

B-259804 

January 25, 1996

The Honorable Orrin G. Hatch

Chairman

The Honorable Joseph R. Biden, Jr.

Ranking Minority Member

Committee on the Judiciary

United States Senate

The Honorable Henry J. Hyde

Chairman

The Honorable John Conyers, Jr.

Ranking Minority Member

Committee on the Judiciary

House of Representatives

This report presents information on the implementation of phase I of the Brady Handgun

Violence Prevention Act (P.L. 103-159), which went into effect February 28, 1994. During phase

I, Brady requires a 5-day waiting period for handgun purchases to allow law enforcement

officers time to conduct presale background checks for evidence of felony convictions or other

disqualifying information.

This report focuses on the number of and reasons for handgun purchase denials in selected

jurisdictions. In addition, the report addresses the extent of federal agency follow-up

enforcement action regarding convicted felons and others who falsify their status on handgun

purchase application forms. Finally, the report also discusses effects of court cases challenging

the constitutionality of the act.

The Departments of Justice and the Treasury and the Bureau of Alcohol, Tobacco and Firearms

(ATF) provided written comments on a draft of this report. Their views have been incorporated

where appropriate, and their comments have been reprinted in appendixes V and IV,

respectively.

We are sending copies of this report to the Secretary of the Treasury, the Attorney General, the

Director of ATF, and other interested parties. Copies will also be made available to others upon

request.
B-259804 

The major contributors to this report are listed in appendix VI. Please feel free to call me at

(202) 512-8777 if you or your staff have any questions.

Norman J. Rabkin

Director, Administration of

 Justice Issues

Page 2 GAO/GGD-96-22 Gun Control
B-259804 

Page 3 GAO/GGD-96-22 Gun Control
Executive Summary

Purpose Since 1968, convicted felons, illegal drug users, and fugitives from justice

have been barred by federal law from purchasing guns from federally

licensed firearms dealers.1

 Even so, until Congress enacted the Brady

Handgun Violence Prevention Act, there were no national procedures for

dealers to verify whether any of their customers were ineligible

purchasers.2

 Beginning February 28, 1994, Brady’s phase I, or interim

provisions, imposed a waiting period of 5 business days to allow state or

local law enforcement officers time to conduct presale background checks

on purchasers of handguns. The checks are to determine, on the basis of

criminal history and other available records, if the prospective purchasers

are prohibited by federal, state, or local laws from buying handguns.

GAO’s self-initiated review of the first full year of Brady’s implementation

was designed to determine (1) how frequently the 5-day waiting period and

background checks were resulting in denying criminals and other

ineligible individuals the opportunity to purchase handguns from federally

licensed dealers; (2) the extent to which such denials have resulted in

follow-up enforcement actions (e.g., arrests and prosecutions) against

convicted felons and other ineligible purchasers who falsely complete the

handgun purchase application form; and (3) the effects of the various legal

challenges to Brady.

Background Enacted after several years of extensive public debate, Brady continues to

be controversial. Opponents of gun control note that criminals can easily

circumvent the law by purchasing handguns on the secondary market or

by having friends or spouses without a criminal record make the

purchases from dealers. Proponents acknowledge that criminal records

checks alone will not prevent felons from obtaining firearms but say the

checks could reduce dealer sales to disqualified persons and complement

other crime control measures, such as stiffer mandatory sentences for

firearms offenses.

At the time of GAO’s review, Brady’s provisions were applicable to 26 states

(“Brady states”). The other 24 states screen handgun purchasers through a

permit system or other procedures that, according to the Bureau of

Alcohol, Tobacco and Firearms (ATF), meet or exceed Brady’s

1

Under the Gun Control Act of 1968, other ineligible purchasers include anyone adjudicated a “mental

defective” or committed to a mental institution, dishonorably discharged veterans of the Armed

Forces, persons who have renounced their U.S. citizenship, and aliens illegally or unlawfully in the

United States. In this report, we will refer to these aliens as “illegal aliens.”

2

The act is named for former White House press secretary James Brady, who was disabled by a

gunshot wound sustained during an attempted assassination of President Reagan.

Page 4 GAO/GGD-96-22 Gun Control
Executive Summary

requirements. ATF, within the Department of the Treasury, licenses gun

dealers and is responsible for overseeing their compliance with Brady.3

Generally, the law enforcement community has strongly supported Brady,

as evidenced by public endorsements from the International Association

of Chiefs of Police and other organizations. Nonetheless, some sheriffs

have filed federal lawsuits essentially contending, among other things, that

the phase I background check provision of Brady is beyond the scope of

Congress’ Commerce Clause powers and is inconsistent with the Tenth

Amendment. Eight of the nine court cases that had been initiated against

the Brady Act through December 31, 1995, resulted from separate filings

by individual sheriffs—each having jurisdictional responsibility for one

county or parish in his respective state—whereas the ninth and most

recent case was filed by the Wyoming Sheriff’s Association. By December

1994, federal district courts had ruled in favor of the respective sheriff in

five of the six cases decided. All six cases were appealed to U.S. circuit

courts. In September 1995, the U.S. Court of Appeals for the Ninth Circuit

reversed two of the federal district courts’ decisions, saying the federal

government can require state and local law enforcement agencies to check

records of prospective handgun buyers. As of October 1995, the four

remaining federal district court cases were still under appeal.

Brady does not impose any reporting requirements on gun dealers or law

enforcement officials. Thus, except for estimates, no comprehensive or

national data on handgun purchase applications and denials are available.

As reported by the Treasury Department, limited surveys by ATF found

denial rates of 4.7 percent (The Brady Law: The First 100 Days) and

3.5 percent (One-Year Progress Report: Brady Handgun Violence

Prevention Act) in selected jurisdictions.

GAO did not conduct a national survey of law enforcement officials. To do

so would have involved hundreds of jurisdictions and would have been

beyond GAO’s available resources. Instead, GAO judgmentally selected and

surveyed 20 law enforcement jurisdictions (7 statewide and 13 local). The

results of GAO’s study, therefore, are not projectable to the universe of

denials nationwide.

Results in Brief The legislative history of Brady gives no indication of what policymakers

expected or considered to be a reasonable denial rate. The law

3

According to ATF data, there was a total of about 92,000 federal firearms licenses held by gun dealers

in the 26 Brady states, as of March 31, 1995.

Page 5 GAO/GGD-96-22 Gun Control
Executive Summary

enforcement agencies in GAO’s survey cumulatively denied 19,740

(4.3 percent) of the 457,020 applications processed during the first year of

Brady’s implementation.4

 The results of GAO’s survey are not projectable to

the universe of denials nationwide. In 15 of the jurisdictions with more

detailed records, GAO found that the denial rate varied from jurisdiction to

jurisdiction, in part, because law enforcement officials did not use

common or standard criteria in making denials. For instance, regarding

criminal history disqualifiers, some jurisdictions made denials only if the

records showed a felony conviction or pending indictment, but other

jurisdictions also denied on the basis of outstanding misdemeanor

warrants, including warrants for unpaid traffic tickets. Also, in three

jurisdictions in Texas, application forms being sent to wrong law

enforcement agencies was a primary factor causing high denial rates.

Only 4 of the 15 jurisdictions had sufficiently detailed records to permit

GAO to quantify denials based on violent crimes. GAO found that denials of

applicants who had been convicted of or indicted for aggravated assault,

murder, rape, or robbery totaled 371 and represented 0.2 percent of the

applications and 4.9 percent of the denials in these 4 jurisdictions.

With limited exceptions, law enforcement officers in the 15 jurisdictions

told GAO they relied solely on criminal history records in conducting

background checks because no databases were available for searching the

other prohibited categories, such as illegal aliens and dishonorably

discharged veterans. The exceptions involve four jurisdictions in which

law enforcement officials also routinely checked for mental history

disqualification by using records from local courts and/or from state- or

county-operated mental health facilities.

Due to the way cases are coded in the Department of Justice’s databases,

the number of Brady-related prosecutions was not readily quantifiable.

Available information indicated, however, that the number of prosecutions

was relatively small and that such follow-up enforcement action was not a

priority of Justice or U.S. Attorneys. On the other hand, Justice and ATF

officials emphasized that the primary goal of Brady is being achieved; that

is, felons are being prevented from buying handguns from federally

licensed gun dealers.

The full effects of the court challenges to Brady will not be known until all

appeals are decided. In the meantime, indications are that background

4

These denials are based on local law enforcement officials’ judgment. GAO did not attempt to

determine whether the denials were appropriate.

Page 6 GAO/GGD-96-22 Gun Control
Executive Summary

checks are still being conducted in seven of the nine jurisdictions involved

in the lawsuits, while no checks have been conducted at all in the other

two jurisdictions. The Justice Department has determined that it lacks

authority to impose penalties or otherwise prosecute chief law

enforcement officers who choose not to conduct background checks.

Justice has noted, however, that injunctive relief,5

 for example, may be an

option to compel law enforcement officials to fulfill their responsibilities

under the act. Moreover, Brady provides neither Justice nor Treasury the

authority to redesignate chief law enforcement officers in situations where

the initially designated officers do not perform the background checks.

GAO’s Analysis

Brady Results: Handgun

Purchase Denials and

Follow-Up Enforcement

Actions

In analyzing denial statistics and reasons in 15 judgmentally selected

jurisdictions, GAO found that almost half (48.7 percent) of the denials were

because the prospective handgun purchasers had felony or misdemeanor

criminal histories, 4.1 percent were based on other Brady ineligible

categories, 0.8 percent involved restraining orders, 7.6 percent involved

traffic offenses, and the remaining 38.9 percent were based on

administrative or other reasons.6

Nearly all of the denials based on criminal histories were for felony-related

reasons, although some differences existed among the jurisdictions

regarding the course of action taken in response to records showing a

felony arrest but not showing a disposition. The other denials in the

criminal history category involved prospective handgun purchasers with

outstanding misdemeanor warrants. Law enforcement officials in the

respective jurisdictions told GAO that any individual with an outstanding

misdemeanor warrant is considered to be a fugitive from justice.

Given the absence of pertinent databases, denials based upon the other

Brady ineligible categories were relatively few. GAO found that most of

these denials resulted coincidentally from searches of criminal history

records. For example, in some instances, the records showed arrests or

convictions for violations of immigration laws or absences without leave

from the military.

5

Injunctive relief refers to the use of an injunction—a court order—to compel a party to do or refrain

from doing a particular act.

6

These rates are not projectable to the universe of denials nationwide.

Page 7 GAO/GGD-96-22 Gun Control
Executive Summary

Among the 15 jurisdictions, 6 jurisdictions denied applications because of

outstanding misdemeanor warrants. For four of the jurisdictions, the

available data did not enable GAO to determine the nature of the warrants.

For the other two, GAO found that all of the denials were for unpaid

parking tickets and other traffic offenses.

Administrative or other reasons accounted for the second highest

percentage of denials in the 15 jurisdictions, with 38.9 percent. Nearly all

of the denials in this category were due to gun dealers transmitting

handgun purchase application forms to the wrong law enforcement

agency. All of the denials involving missent forms were made by three

jurisdictions in Texas—the cities of Fort Worth and Houston and Harris

County. Denials based on missent forms represented nearly two-thirds of

the total denials within these three jurisdictions. This volume largely

explains why Fort Worth, Houston, and Harris County had the highest

overall denial rates—14.5, 18.5, and 26.8 percent, respectively—among the

15 jurisdictions GAO analyzed.

On the basis of queries to ATF’s field offices, ATF headquarters staff told GAO

that as of July 1995, a total of at least seven persons (nationally) had been

successfully prosecuted for making false statements on the Brady handgun

purchase form. Three of the cases involved individuals who lied about

drug-related convictions. The subsequent prosecutions of these individuals

resulted in prison or custody sentences of 12 to 24 months. The other four

cases (related gun-trafficking cases) involved individuals who had falsified

state identification cards and the Brady handgun purchase form to portray

themselves as residents of West Virginia when, in fact, they resided in New

York. All four defendants pled guilty. Three defendants were sentenced to

2 years’ probation, and the fourth was sentenced to 6 months’ home

confinement and 3 years’ probation.

Effects of Court

Challenges to Brady

In five of the six cases decided as of July 1995, the federal district courts

held Brady’s phase I background check provision to be unconstitutional as

a violation of the Tenth Amendment. However, the decisions found the

remainder of Brady’s provisions severable and that they, therefore,

remained operative. In the sixth case, the court held that Brady’s phase I

background check provision was consistent with the Tenth Amendment.

In September 1995, the U.S. Court of Appeals for the Ninth Circuit

reversed two of the rulings of unconstitutionality. The appeals court held

that the federal government can impose the minimal burden of requiring

Page 8 GAO/GGD-96-22 Gun Control
Executive Summary

state and local law enforcement agencies to check the records of

prospective handgun buyers.

Despite the federal district court rulings, at the time of GAO’s review

indications were that background checks were still being conducted in

seven of the nine jurisdictions in which lawsuits had been filed. On the

other hand, even though Brady has been in effect since February 28, 1994,

indications were that no background checks on handgun purchasers had

been conducted in the other two jurisdictions—Iberia Parish, Louisiana,

and Ravalli County, Montana.

Recommendations GAO is making no recommendations in this report.

Agency Comments The Justice Department, as well as the Treasury Department and ATF

jointly, provided written comments on a draft of this report. These

comments are presented in appendixes V and IV, respectively. GAO

incorporated the technical and clarifying comments where appropriate,

and the more substantive comments are discussed at the ends of chapters

2 and 3. All three agencies generally said that the draft report accurately

portrayed Brady’s implementation.

Page 9 GAO/GGD-96-22 Gun Control
Contents

Executive Summary 4

Chapter 1 

Introduction

14

Brady Calls for Background Checks of Prospective Handgun

Purchasers

14

Effective Implementation Largely Depends Upon the Cooperation

of Local Law Enforcement Officials and Gun Dealers

19

Policymakers Recognize That Brady May Not Keep All Criminals

From Obtaining Handguns

20

Objectives, Scope, and Methodology 21

Chapter 2 

Brady Results:

Handgun Purchase

Denials and

Follow-Up

Enforcement Actions

27

Comprehensive Data on Background Check Results Were Not

Available

27

Results of Two ATF Surveys of Selected Jurisdictions 28

Results of Our Survey of 20 Selected Jurisdictions 31

ATF and DOJ Officials View Brady Primarily as a Means to Deny

Purchases to Criminals

41

Conclusions 45

Agency Comments and Our Evaluation 45

Chapter 3 

Challenges to Brady:

Court Cases and

Related Legal Issues

47

Federal Court Decisions Are Mixed 47

No Background Checks Had Been Conducted in Two

Jurisdictions

50

Federal Agency Authority to Penalize or Redesignate CLEOs 52

The Effects of Not Conducting Background Checks Are

Unknown

54

Conclusions 55

Agency Comments and Our Evaluation 55

Appendixes Appendix I: Brady Handgun Purchase Form 58

Appendix II: Designation of “Brady” and “Brady-Alternative”

States

61

Appendix III: GAO Analysis of Handgun Purchase Denial

Statistics in Selected Jurisdictions

64

Appendix IV: Comments From the Department of the Treasury

and the Bureau of Alcohol, Tobacco and Firearms

83

Appendix V: Comments From the Department of Justice 88

Appendix VI: Major Contributors to This Report 91

Page 10 GAO/GGD-96-22 Gun Control
Contents

Tables Table 1.1: State and Local Law Enforcement Agencies Contacted

by GAO

23

Table 2.1: Statistics on Handgun Purchase Applications

Processed and Denied in 30 Jurisdictions Contacted by ATF,

March 1994-January 1995

29

Table 2.2: Statistics on Handgun Purchase Applications

Processed and Denied in 20 Jurisdictions Contacted by GAO,

February 28, 1994-February 28, 1995

31

Table 2.3: Summary of Handgun Purchase Denial Statistics for 15

Jurisdictions Contacted by GAO, February 28, 1994-

February 28, 1995

34

Table 2.4: Violent Crime-Related Denials in Four Jurisdictions 35

Table 2.5: Profile of Brady Cases Prosecuted by U.S. Attorneys, as

of July 1995

44

Table 3.1: Overview of Court Cases Filed by Sheriffs Challenging

the Constitutionality of Brady, as of October 1995

49

Table III.1: Summary Statistics of Handgun Purchase Denials for

15 Jurisdictions

64

Table III.2: Handgun Purchase Denial Statistics for the State of

Arizona, October 1, 1994-February 28, 1995

66

Table III.3: Handgun Purchase Denial Statistics for the State of

Arkansas, February 28, 1994-February 28, 1995

67

Table III.4: Handgun Purchase Denial Statistics for Clayton

County, Georgia, February 28, 1994-February 28, 1995

68

Table III.5: Handgun Purchase Denial Statistics for Fulton

County, Georgia, February 28, 1994-February 28, 1995

69

Table III.6: Handgun Purchase Denial Statistics for the State of

Kentucky, February 28, 1994-February 25, 1995

70

Table III.7: Handgun Purchase Denial Statistics for Bossier

Parish, Louisiana, February 28, 1994-February 28, 1995

71

Table III.8: Handgun Purchase Denial Statistics for Caddo Parish,

Louisiana, February 28, 1994-February 28, 1995

72

Table III.9: Handgun Purchase Denial Statistics for the State of

Nevada, February 28, 1994-February 28, 1995

73

Table III.10: Handgun Purchase Denial Statistics for the State of

Ohio, February 28, 1994-February 28, 1995

74

Table III.11: Handgun Purchase Denial Statistics for the State of

South Carolina, February 28, 1994-February 28, 1995

75

Table III.12: Handgun Purchase Denial Statistics for Abilene,

Texas, February 28, 1994-February 28, 1995

77

Page 11 GAO/GGD-96-22 Gun Control
Contents

Table III.13: Handgun Purchase Denial Statistics for Fort Worth,

Texas, February 28, 1994-March 3, 1995

78

Table III.14: Handgun Purchase Denial Statistics for Harris

County, Texas, February 28, 1994-February 28, 1995

80

Table III.15: Handgun Purchase Denial Statistics for Houston,

Texas, February 28, 1994-February 28, 1995

81

Table III.16: Handgun Purchase Denial Statistics for Pasadena,

Texas, February 28, 1994-February 28, 1995

82

Figures Figure 1.1: Flowchart of Handgun Purchase Application and

Background Check Procedures Under Phase I of Brady

17

Figure 2.1: Denial Rates in the 20 Jurisdictions GAO Contacted,

February 28, 1994-February 28, 1995

33

Figure II.1: Brady and Brady-Alternative States, as of February 28,

1995

62

Abbreviations

ATF Bureau of Alcohol, Tobacco and Firearms

BJS Bureau of Justice Statistics

CLEO chief law enforcement officer

DOJ Department of Justice

FBI Federal Bureau of Investigation

REJIS Regional Justice Information Service

Page 12 GAO/GGD-96-22 Gun Control
Page 13 GAO/GGD-96-22 Gun Control
Chapter 1 

Introduction

Effective February 28, 1994, the Brady Handgun Violence Prevention Act

(Brady)7

 requires firearms licensees, such as licensed firearms dealers, to,

among other things, request a presale background check on handgun

purchasers. Brady calls for implementation in two phases. Under phase I,

or the interim provisions, the checks are to be conducted by the chief law

enforcement officer (CLEO) in the purchaser’s residence community to

determine, on the basis of available records, if the individual is legally

prohibited from buying the firearm under the provisions of federal, state,

or local law.8

 The sale may not be completed for 5 business days unless

the dealer receives an approval from the CLEO before that time.9

 If the CLEO

does not contact the dealer within the 5-day period, the dealer may make

the sale unless the dealer has reason to believe the transaction would be

unlawful. Under the phase II permanent provisions effective November 30,

1998, the 5-day waiting period requirement terminates and presale

inquiries for all firearms sales will be made only to a national background

check system that will be operated by the Federal Bureau of Investigation

(FBI).

Brady Calls for

Background Checks

of Prospective

Handgun Purchasers

Since early 1987, Congress has considered various versions of legislation

restricting access to handguns. These legislative efforts were labeled

“Brady” bills—referring to James Brady, the Reagan administration press

secretary who was disabled by a gunshot wound sustained during an

attempted assassination of the President. Many of the early legislative

efforts called for a waiting period for handgun purchases. The waiting

period was designed, in most instances, to allow for the “opportunity” to

conduct background checks, not the imposition of a mandatory

background check requirement. Often, this opportunity meant that a copy

of the application form was to be sent to the appropriate local law

enforcement agency. In addition, the waiting period was described as

providing a cooling-off period to deter impulse purchases. Brady

opponents objected to the waiting period and offered amendments or

substitute legislation typically calling for systems that would allow

point-of-sale background checks to screen out criminals and not delay or

otherwise interfere with the rights of law-abiding citizens to buy and own

handguns.

7

P.L. 103-159, 107 Stat. 1536 (1993).

8

Brady defines a CLEO as the “chief of police, sheriff, or an equivalent officer or the designee of any

such individual.” In some states—by agreement among the applicable law enforcement agencies—the

state police department serves as the CLEO.

9

Brady defines a business day as a day on which state offices are open.

Page 14 GAO/GGD-96-22 Gun Control
Chapter 1 

Introduction

The current two-phased approach, first introduced in 1991 and described

by its original sponsors as a compromise, (1) includes a waiting period

that allows CLEOs time to conduct the background check required of them10

and (2) provides for the eventual point-of-sale background check system.

To do this, Brady amends the Gun Control Act of 1968,11 which contains

the principal federal restrictions on commerce in firearms and

ammunition.

Since passage of the 1968 act, the Bureau of Alcohol, Tobacco and

Firearms (ATF) has licensed and regulated manufacturers, importers,

dealers, and pawnbrokers in firearms. Under the 1968 act, as amended,

those licensees (hereinafter referred to as gun dealers) are prohibited from

selling firearms or ammunition to anyone they know or have reasonable

cause to believe (1) has been convicted of (or is under indictment for), in

any court, a crime punishable by more than 1 year in prison; (2) is a

fugitive; (3) is an unlawful user of a controlled substance; (4) has been

adjudicated as a mental defective or has been committed to a mental

institution; (5) is an illegal alien; (6) is a dishonorably discharged veteran

of the Armed Forces; or (7) is a person who has renounced U.S.

citizenship. Under the 1968 act, persons purchasing a firearm from a

licensed dealer are required to certify their eligibility, but no background

checks or other verification of the information supplied is required. In

contrast, while including the 1968 prohibitions and also requiring buyers to

certify their eligibility, Brady is the first federal legislation providing for

presale background checks to verify such eligibility.

An eighth prohibited category of purchasers was added by the Violent

Crime Control and Law Enforcement Act of 1994 (P.L. 103-322, 108 Stat.

1796 (1994)). Generally, the 1994 Crime Act provides that it is unlawful for

any person to possess or receive any firearm if that person is subject to a

court order that

“restrains such person from harassing, stalking, or threatening an intimate partner of such

person or child of such intimate partner or person, or engaging in other conduct that would

place an intimate partner in reasonable fear of bodily injury to the partner or child.”

Under Brady’s interim provisions, a prospective handgun purchaser must

complete a form—generally referred to as the Brady form (see app.

I)—giving his or her name, date of birth, and residence address and

10Brady’s interim provisions provide that a CLEO “shall make a reasonable effort” in conducting a

background check.

11P.L. 90-618, 82 Stat. 1213 (1968).

Page 15 GAO/GGD-96-22 Gun Control
Chapter 1 

Introduction

certifying that he or she is not a member of various categories prohibited

from buying a firearm.12 Then, within 1 business day, the gun dealer must

provide notice of the form’s contents to the CLEO of the area in which the

buyer’s residence is located. The CLEO must then “make a reasonable

effort” to ascertain within 5 business days whether the sale would violate

federal, state, or local law, including research in whatever state and local

record-keeping systems are available and the FBI-operated National Crime

Information Center files (see fig. 1.1).

12As discussed further in chapter 2, as of the time of our review, the Brady form had not been updated

to include the “restraining order” category of prohibited purchasers.

Page 16 GAO/GGD-96-22 Gun Control
Chapter 1 

Introduction

Figure 1.1: Flowchart of Handgun Purchase Application and Background Check Procedures Under Phase I of Brady

Prospective buyer


completes section A of


ATF Form 5300.35,


Statement of Intent to


Obtain A Handgun(s).

Dealer verifies the


prospective buyer's


identity, completes


section B of the form,


and transmits copy of


the form to CLEO.

Form completed


correctly and


submitted to proper


CLEO?

CLEO denies


the handgun


purchase.

CLEO informs dealer


of denial, and the


dealer informs the


prospective buyer.

CLEO informs dealer


of approval. Or, if


the dealer has not


heard from the CLEO


within 5 days ...

Dealer transfers


handgun to the


buyer.

CLEO


informs


dealer.

Dealer transfers


handgun to the


buyer.

Do records


indicate that the


prospective buyer


is ineligible?

Denial


reversed?

Denied


buyer


appeals?

Process


finished.

CLEO searches


criminal history


databases for


records on the


prospective buyer.

Process


finished.

Start of process


No

Yes

Yes No

No

No Yes Yes

(Figure notes on next page)

Page 17 GAO/GGD-96-22 Gun Control
Chapter 1 

Introduction

Source: Developed by GAO on the basis of discussions with ATF officials and reviews of Brady.

The CLEO may allow the sale to proceed at any time during the waiting

period by advising the gun dealer that the applicant has not been

determined to be a prohibited person. Alternatively, if not notified to the

contrary, the gun dealer may assume that the purchaser is not disqualified

and complete the sale upon expiration of the 5-day period. However, if the

search reveals that the applicant is ineligible to receive a handgun, the

CLEO is to notify the dealer (without providing the reason) that the sale is

denied. The CLEO may also instruct the dealer to refer the buyer to the CLEO

if the buyer has questions or otherwise challenges the denial. Generally,

such questions or challenges are sometimes referred to as “administrative

appeals,” even though practices are somewhat less formal than this term

implies. For instance, by providing the law enforcement officer additional

documentation, a buyer may be able to reverse a denial that initially

resulted from inaccurate or incomplete information in the databases

searched. Brady also provided a remedy for erroneous denial of a firearm.

Generally, any person denied a firearm due to the provision of erroneous

information or who was not prohibited from receipt of a firearm may bring

action to direct the correction of the erroneous information or that the

transfer be approved. In any such action, the court may allow the

prevailing party a reasonable attorney’s fee as part of the costs.

Finally, under Brady’s interim provisions, certain specified transactions in

states that screen handgun purchasers—e.g., through a permit system or

some other procedure for conducting criminal background checks—are

exempt from Brady’s waiting period. States that operate an alternative

system that meets certain standards have been designated as

Brady-alternative states by ATF. As of February 28, 1995, 24 states had

systems in place that ATF determined were acceptable alternatives to

Brady. Residents, dealers, and law enforcement officials in the other 26

states—the so-called “Brady states”—are subject to Brady’s waiting period

requirements (see app. II).

Page 18 GAO/GGD-96-22 Gun Control
Chapter 1 

Introduction

Effective

Implementation

Largely Depends

Upon the Cooperation

of Local Law

Enforcement Officials

and Gun Dealers

To be implemented effectively, Brady depends on the cooperation of local

law enforcement officials and gun dealers. However, Brady provides no

federal funds to local law enforcement agencies to conduct the

background checks, and, according to the Department of Justice (DOJ),

these agencies cannot be penalized for refusing to conduct them.13 In

addition, several local law enforcement officials have challenged in court

the phase I background check provision. Gun dealers are heavily relied on

to stop prohibited persons from buying guns, but ATF lacks the resources

to inspect all gun dealers to ensure compliance with Brady. For instance,

at a January 1994 congressional hearing, the ATF Director testified that:

“With 285,000 licensees and only 240 ATF inspectors to check their premises and the

records that they keep to ensure compliance, it would take approximately 10 years for us

to inspect all the gun dealers.”14

More recently, the number of licensed dealers has begun to decline—to

about 220,00015 by the end of March 1995—partly as a result of the

increase in the license fee required by the Federal Firearms License

Reform Act of 1993.16 Another contributing factor is the 1994 Crime Act,

which required that gun dealers certify compliance with state and local

law as a condition for a license. On the other hand, even if ATF had more

resources to inspect gun dealers, there are legislated limits on the

frequency of compliance inspections. For instance, under 18 U.S.C. 923,

absent reasonable cause or a warrant, ATF can inspect or examine a

licensed dealer “not more than once during any 12-month period” to

ensure compliance with record-keeping requirements.17

Finally, while gun dealers are required to maintain a copy of completed

Brady forms for at least 5 years, the dealers are not required to report

information from the forms to federal authorities. Brady allows CLEOs to

13On the other hand, millions of dollars in federal grants have been awarded to states to improve their

criminal history records systems. For example, the Crime Control Act of 1990 required states to devote

a portion of grant funds provided to them under the Omnibus Crime Control and Safe Streets Act of

1968 to improvement of their criminal justice records. More recently, additional grant funds for

improving criminal history records systems were made available to meet the goals of Brady and the

National Child Protection Act of 1993.

14Gun Violence: Problems and Solutions: Hearings Before the Committee on the Judiciary, 103d

Congress, 2d Sess. 30 (1994).

15According to ATF data, about 92,000 federal firearms licenses were held by gun dealers in the 26

Brady states, as of March 31, 1995.

16P.L. 103-159, 107 Stat. 1545 (1993).

17Section 923 of title 18 also provides for inspections or examinations without such reasonable cause

or warrant in other specified situations in connection with a criminal investigation.

Page 19 GAO/GGD-96-22 Gun Control
Chapter 1 

Introduction

retain forms for individuals denied a purchase but requires that all other

forms be destroyed within 20 days. CLEOs also are not required to maintain

or report data. In fact, various statutory provisions restrict the use of

firearms-related information and prohibit the establishment of systems to

register firearms, firearms owners, or firearms transactions.18 Thus, no

data were readily available that would allow for monitoring trends in

handgun purchases and denials or otherwise judge the impact of Brady.

Policymakers

Recognize That Brady

May Not Keep All

Criminals From

Obtaining Handguns

In July 1995, the Department of Justice issued a report on guns and crime

in the United States.19 Among other information, the report noted that:

• Over 40 million handguns have been produced in the United States since

1973. Most guns are not used to commit crimes. Further, most crime is not

committed with guns. However, most gun crime is committed with

handguns.

• During 1993, there were 4.4 million murders, rapes, robberies, and

aggravated assaults in the United States, and more than one-fourth of

these violent crimes involved the use of a gun.

• From 1985 through 1994, the FBI received an annual average of over

274,000 reports of stolen guns. By definition, all stolen guns are available

to criminals.

• At the request of police agencies, ATF’s National Tracing Center will trace

firearms back to their original point of sale. More than three-quarters of

the 83,000 guns used in crime that ATF traced for law enforcement agencies

in 1994 were handguns.

Policymakers recognize that even a perfect felon identification system

may not keep felons from obtaining firearms and that Brady may not

directly result in measurable reductions of gun-related crimes. For

example, Brady does not apply to transactions between nonlicensed

individuals. Tens of millions of handguns are already in private hands.

Thus, the apparently sizable numbers of handgun transactions that take

place between private individuals, such as at gun shows and even “on the

street,” are not subject to Brady’s requirements. In fact, the purpose of

18ATF appropriations language in the Treasury, Postal Service and General Government

Appropriations Act of 1995 (P.L. 102-329), for example, prohibits the use of appropriated funds in

connection with consolidating or centralizing, within the Department of the Treasury, the records of

acquisition and disposition of firearms maintained by federal firearms licensees. In addition, 18 U.S.C.

Section 926(a) provides, in part, that no system of registration of firearms, firearms owners, or

firearms transactions or dispositions be established.

19Department of Justice, Office of Justice Programs, Marianne W. Zawitz, “Guns Used in Crime”,

Bureau of Justice Statistics Selected Findings Number 5 (July 1995, NCJ-148201).

Page 20 GAO/GGD-96-22 Gun Control
Chapter 1 

Introduction

Brady is to prevent convicted felons and other ineligible persons from

purchasing firearms from licensed dealers.

Opponents of Brady point to a 1991 survey of state prison inmates, which

showed that 73 percent of those who had ever possessed a handgun did

not purchase it from a gun dealer.20 Generally, opponents contend that it is

a mistake to claim Brady prevents criminals from obtaining handguns

since anyone denied a purchase from a licensed dealer can easily obtain a

gun from another source and will almost certainly do so. Also, denied

applicants may have friends or spouses without a criminal record make

the purchases from dealers for them.

On the other hand, Brady proponents use the same study to counter that

27 percent of those inmates surveyed obtained their firearms from

licensed gun dealers and argue that no criminals should be able to buy

guns from licensed dealers. Proponents acknowledge that criminal records

checks alone will not prevent felons from obtaining firearms but could

reduce dealer sales to disqualified persons; complement other crime

control measures, such as stiffer mandatory sentences for firearms

offenses; and clamp down on illegal gun trafficking.21

Objectives, Scope,

and Methodology

Our self-initiated review of the first full year of Brady implementation was

designed to determine the following:

• How frequently were the 5-day waiting period and background checks

resulting in criminals and other ineligible individuals being denied the

opportunity to purchase handguns from federally licensed dealers? (See

ch. 2.)

• To what extent had handgun purchase denials resulted in federal

follow-up enforcement actions (e.g., arrests and prosecutions) against

convicted felons and other ineligible purchasers who falsely completed the

Brady form? (See ch. 2.)

• What were the effects of the various legal challenges to Brady? For

instance, we were particularly interested in whether background checks of

handgun purchasers were being conducted in those jurisdictions

represented by CLEOs who had filed lawsuits challenging the

20U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Survey of State

Prison Inmates, 1991, NCJ-136949 (Washington, D.C.: Government Printing Office, March 1993).

21For a more detailed discussion of firearms regulation issues, see Office of Technology Assessment,

Automated Record Checks of Firearm Purchasers: Issues and Options, OTA-TCT-497 (Washington,

D.C.: U.S. Government Printing Office, July 1991).

Page 21 GAO/GGD-96-22 Gun Control
Chapter 1 

Introduction

constitutionality of Brady. If no background checks were being conducted

in certain jurisdictions, we wanted to determine why and what alternative

arrangements were permissible or practical. (See ch. 3.)

To obtain a broad understanding of these phase I implementation issues,

we contacted a number of relevant governmental and private

organizations. For example, we interviewed ATF headquarters and district

officials responsible for promulgating Brady regulations and providing

training and guidance to CLEOs and federally licensed gun dealers. We

obtained additional national perspectives by contacting the following

industry and special interest organizations: Americans for Effective Law

Enforcement; the Citizens Committee for the Right to Keep and Bear

Arms; the Coalition to Stop Gun Violence; Gun Owners of America;

Handgun Control, Inc.; the International Association of Chiefs of Police;

the Law Enforcement Alliance of America; the National Rifle Association;

and the National Sheriffs’ Association.

To obtain information on how frequently the 5-day waiting period and

background checks were resulting in denials, we contacted local law

enforcement agencies in several Brady states. Our results are not

projectable to the universe of denials nationwide. We did not use a

nationally projectable sample because (1) it would have involved

contacting hundreds of law enforcement agencies nationwide, (2) Brady

was less than 1 year old when we began our data gathering, and (3) Brady

did not impose any record-keeping requirements on CLEOs.

We judgmentally selected 20 state and local law enforcement agencies in

12 (46 percent) of the 26 Brady states. Selection factors—which are

discussed in more detail below—included data availability, jurisdictional

variety, denial rate variety, and geographic dispersion. In seven of the

Brady states we contacted, a state agency conducted background checks

for all jurisdictions within the state. In the other five Brady states (13

jurisdictions), local agencies were responsible for the background checks.

Also, as noted in table 1.1, 14 of the 20 agencies we contacted were

surveyed earlier by ATF for Treasury’s interim report on Brady’s impact.

Page 22 GAO/GGD-96-22 Gun Control
Chapter 1 

Introduction

Table 1.1: State and Local Law

Enforcement Agencies Contacted by

GAO State

Jurisdiction (state,

county, parish, or city) Law enforcement agency

Arizona State Department of Public Safety

Arkansas State State Police

Georgia Clayton Countya Sheriff’s Office

Cobb Countya Sheriff’s Office

Dekalb Countya Department of Public Safety

Fulton Countya Sheriff’s Department

Kentucky Statea State Police

Louisiana Bossier Parisha Sheriff’s Department

Caddo Parisha Sheriff’s Office

Nevada State Department of Motor

Vehicles and Public Safety

Ohio Statea Bureau of Criminal

Identification and

Investigation

Pennsylvania Allegheny Countya Sheriff’s Office

South Carolina State State Law Enforcement

Division

Texas City of Abilenea Police Department

City of Fort Worth Police Department

Harris Countya Sheriff’s Department

City of Houstona Police Department

City of Pasadenaa Police Department

Washington City of Seattlea Police Department

West Virginia State State Police

aATF surveyed these 14 jurisdictions and 2 others (Gwinnett County, Georgia, and Providence,

Rhode Island) as a basis for the Treasury Department’s report, The Brady Law: The First 100

Days (July 27, 1994). We did not include Gwinnett County and Providence in our survey because

those jurisdictions do not maintain cumulative data.

Brady does not require any reports from CLEOs or gun dealers. In fact,

Congress has passed various statutory provisions that restrict the use of

firearms-related information and prohibit the establishment of systems to

register firearms, firearms owners, or firearms transactions. Thus, no data

were readily available for monitoring national trends in handgun

purchases and denials. Consequently, we relied on the voluntary

cooperation and judgment of selected state and local law enforcement

officials to provide data on the number and results of Brady background

checks performed in their respective jurisdictions. We did not attempt to

determine whether the denials were appropriate. For its initial Brady

Page 23 GAO/GGD-96-22 Gun Control
Chapter 1 

Introduction

report, ATF had already developed cooperative working relationships with

16 CLEOs in 8 states.22 Thus, after first checking with ATF officials, we

selected 14 of those 16 jurisdictions to build upon the already established

relationships.23 We did not select Gwinnett County, Georgia, and

Providence, Rhode Island, because those jurisdictions do not maintain

cumulative data. Two of the 16 CLEOs selected by ATF have statewide

(Kentucky and Ohio) responsibilities for performing background checks of

prospective handgun buyers. In addition to selecting these two states, to

provide broader coverage we also selected the other Brady states that

have a centralized agency with statewide responsibility for performing

background checks—Arizona, Arkansas, Nevada, South Carolina, and

West Virginia. Finally, because press accounts listed the Fort Worth,

Texas, Police Department as having one of the highest handgun denial

rates in the nation, we included that jurisdiction in our review, which

resulted in a total of 20 jurisdictions.

Then, from each of the 20 applicable law enforcement agencies, we

obtained available data on the number of Brady handgun purchase forms

processed and the number denied24 during the first year of Brady

implementation, February 28, 1994, through February 28, 1995. We used

this information to calculate jurisdiction-specific denial rates, as well as an

overall denial rate for the 20 jurisdictions. Although we did not verify the

accuracy of the data obtained, during our on-site visits to three

jurisdictions—Arkansas; South Carolina; and Fort Worth, Texas—and in

numerous follow-up telephone calls with the other 17 jurisdictions, we

discussed the procedures for gathering and compiling the data and have

no reason to believe the data are unreliable. However, the denial rates we

calculated are not projectable beyond the jurisdictions covered.

In contacting the law enforcement officials in these jurisdictions, we also

inquired about the availability and completeness of databases to conduct

background checks. Our inquiries included questions covering criminal

history databases, as well as possible data sources covering drug users,

illegal aliens, and other categories of ineligible purchasers. Regarding

criminal history databases, for example, we were interested in what

course of action was taken if the background search found incomplete

22Department of the Treasury, The Brady Law: The First 100 Days, July 27, 1994.

23At the time we made these selections, ATF officials told us that they had no further survey or

reporting plans with respect to Brady Act results in these or other jurisdictions. Subsequently,

however, in response to the Clinton administration’s request for a 1-year anniversary assessment of the

act, the Treasury Department issued another report, One-Year Progress Report: Brady Handgun

Violence Prevention Act (February 28, 1995). We discuss that report further in chapter 2.

24We accepted the jurisdictions’ criteria for and judgment in denying applications. We did not attempt

to determine whether the denials were appropriate.

Page 24 GAO/GGD-96-22 Gun Control
Chapter 1 

Introduction

records—particularly records showing a felony arrest but not showing a

disposition.

Also, besides quantifying, we were interested in categorizing and analyzing

the various reasons used by law enforcement officials in the 20

jurisdictions to deny handgun purchases. However, we found that only 15

of the jurisdictions maintained records (some more detailed than others)

showing reasons for denials. Thus, our categorization and analysis of

denial reasons is limited to these 15 jurisdictions—6 states, 3 counties, 2

parishes, and 4 cities. Moreover, only four of these jurisdictions—two

states, a county, and a city—had sufficiently detailed information to allow

us to quantify the number of felony-related denials involving violent crime

convictions or indictments.

Regarding follow-up enforcement actions on convicted felons and others

who falsely complete Brady handgun purchase forms, we interviewed DOJ

officials and reviewed documents prepared by DOJ officials responsible for

establishing law enforcement policy guidance. From DOJ officials, as well

as from ATF headquarters officials, we obtained available information on

the number of cases referred to U.S. Attorneys by ATF field offices, the

number declined for prosecution by U.S. Attorneys, and the number

actually prosecuted by U.S. Attorneys. We then analyzed summary

information provided by ATF on the prosecuted cases. The summary

information covered the nature of the charges, the individuals’ past

criminal histories, and any resulting convictions and sentences. For

example, we were interested in whether the defendants were charged only

with lying on the Brady form, or whether form falsification was an

ancillary charge added in with other charges. Similarly, we were interested

in whether the defendants had criminal histories showing convictions for

violent felonies. Finally, we were interested in the types of sentences

received by convicted defendants.

In studying implications of the various legal challenges to Brady, we first

reviewed the applicable federal district court decisions. Then, to

determine the Department of Justice’s position on the legal challenges, we

interviewed the Acting Assistant Attorney General, as well as his Special

Counsel.

Also, we interviewed staff from ATF’s headquarters and Office of Chief

Counsel as well as ATF officials in field offices encompassing jurisdictions

in which CLEOs have challenged Brady. In so doing, we obtained

information and views on (1) whether background checks have been or

Page 25 GAO/GGD-96-22 Gun Control
Chapter 1 

Introduction

are being performed in those jurisdictions in which CLEOs have challenged

Brady; (2) what ATF’s statutory and/or operational responsibility is with

respect to CLEOs and their performance of Brady background checks;

(3) ATF’s role with respect to the designation of alternate CLEOs to perform

the Brady background checks; and (4) what actions, if any, ATF has taken

regarding Brady background checks on prospective handgun buyers in the

jurisdictions involved in the lawsuits.

We conducted our review in Arkansas; Georgia; South Carolina; Texas;

and Washington, D.C., from July 1994 through August 1995 in accordance

with generally accepted government auditing standards. The Justice

Department, as well as Treasury and ATF jointly, provided written

comments on a draft of this report. These comments are included in

appendixes V and IV. We incorporated technical and clarifying comments

in the report where appropriate and discussed the more substantive

comments at the ends of chapters 2 and 3.

Page 26 GAO/GGD-96-22 Gun Control
Chapter 2 

Brady Results: Handgun Purchase Denials

and Follow-Up Enforcement Actions

To assess Brady’s results, we calculated handgun purchase denial rates

and tried to determine if follow-up enforcement actions were being taken.

We and ATF surveyed jurisdictions to determine denial rates. ATF calculated

an average denial rate of 4.7 percent in 16 jurisdictions for the first 3

months of Brady implementation and 3.5 percent in 30 jurisdictions for the

first year of Brady. We calculated an average denial rate of 4.3 percent in

20 jurisdictions for the first year of Brady. In following up on reasons for

denials, we determined that (1) most of the jurisdictions in our survey

relied only on criminal history records and (2) comprehensive data on

background check results were not available. We were not able to quantify

follow-up enforcement actions due to the way cases were coded in DOJ’s

databases, but we were able to determine that as of July 1995, at least

seven Brady-related cases were successfully prosecuted.

Comprehensive Data

on Background Check

Results Were Not

Available

Comprehensive data on the number of handgun purchase applications and

denials under Brady were not available. Brady contains no reporting

requirements, so neither gun dealers nor law enforcement officers are

required to accumulate and report statistics on the number of handgun

purchase applications processed or denied. In fact, with respect to the

protection of individual privacy rights, Brady contains certain prohibitions

on the use of Brady-related background information as well as prohibiting

the establishment of a registry of firearms, firearms owners, or firearms

transactions.

Under Brady, after approving a handgun sale, the CLEO who conducted the

background check must destroy all purchaser-related information,

including the copy of the handgun purchase application form, ATF Form

5300.35 (see app. I for a copy of the form). Moreover, Brady does not

require either CLEOs or gun dealers to record and report Brady-related

statistics. As a result, the accumulation of data on the volume of and the

reasons for handgun purchase denials is left to the discretion of the

applicable CLEOs. Consequently, attempts to study the results or impact of

Brady are largely dependent upon the voluntary cooperation of the CLEOs

responsible for conducting the background checks.

To develop a systematic approach for monitoring Brady’s impact on the

acquisition and use of firearms, in September 1994 the Justice

Department’s Bureau of Justice Statistics (BJS) entered into an agreement

with the Regional Justice Information Service (REJIS).25 Under the terms of

25REJIS, located in St. Louis, Missouri, is a quasi-governmental organization that provides data

processing services to criminal justice agencies.

Page 27 GAO/GGD-96-22 Gun Control
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Brady Results: Handgun Purchase Denials

and Follow-Up Enforcement Actions

the agreement, REJIS is designing an information system, called the

Firearms Inquiries Statistical System, to routinely collect data from

volunteer samples of the estimated 22,000 local law enforcement officers

within the Brady states and from state criminal history repositories, the

FBI, and ATF. The primary objectives of this information system are to

(1) identify, describe, and categorize the procedures used to implement

Brady; (2) measure results of Brady in terms of the number of applications

accepted and denied, the reasons for the denials, and the actions taken as

a result of the denials; and (3) create a database to permit analyses of the

use of firearms in the commission of crimes. BJS officials anticipate that

initial output under the system will be available in early 1996.

In the interim, ATF has conducted two limited-scope surveys in selected

Brady states. The results of these surveys, as well as the results of our

similarly limited-scope survey, are discussed in the following sections.

Results of Two ATF

Surveys of Selected

Jurisdictions

ATF’s initial survey of Brady’s results covered approximately the first 3

months of implementation.26 In conducting the survey, ATF contacted state

and local law enforcement officers representing 16 jurisdictions—2 states,

7 counties, 2 parishes, and 5 cities.27 For handgun purchase applications

processed by the respective law enforcement officers within these 16

jurisdictions, ATF found that the overall denial rate was 4.7 percent.

The report on ATF’s second survey of Brady’s results was issued on the first

anniversary of the act’s effective date.28 In conducting this survey, which

provided data covering the period March 1994 through January 1995, ATF

contacted law enforcement officers representing 30 jurisdictions—7

states, 9 counties, 1 parish, 12 cities, and Puerto Rico. As table 2.1 shows,

for handgun purchase applications processed by the respective law

enforcement officers within these 30 jurisdictions, ATF found that the

overall denial rate was 3.5 percent.

26Department of the Treasury, The Brady Law: The First 100 Days, July 27, 1994.

27See table 1.1 in chapter 1 for a listing of the 16 jurisdictions surveyed by ATF.

28Department of the Treasury, One-Year Progress Report: Brady Handgun Violence Prevention Act,

February 28, 1995.

Page 28 GAO/GGD-96-22 Gun Control
Chapter 2 

Brady Results: Handgun Purchase Denials

and Follow-Up Enforcement Actions

Table 2.1: Statistics on Handgun Purchase Applications Processed and Denied in 30 Jurisdictions Contacted by ATF,

March 1994-January 1995

Number of Brady

handgun applications

State Jurisdiction Law enforcement agency Processed Denied

Denial rate

(percent)

Alabama Jefferson County Sheriff’s Department 19,646 964 4.9

Alaska City of Anchorage Police Department 6,960 111 1.6

Arizonaa City of Phoenix Police Department 28,708 1,718 6.0

State Department of Public Safety 32,374 776 2.4

Arkansas State State Police 25,434 472 1.9

Georgia Dekalb Countyb Department of Public Safety 4,685 680 14.5

Kansas Elk County Sheriff’s Department 15 0 0.0

Kentucky State State Police 58,474 2,030 3.5

Louisiana New Orleans Parish Superintendent of Police 5,337 607 11.4

Maine City of Lewiston Police Department 190 6 3.2

Mississippi Rankin County Sheriff’s Department 1,150 24 2.1

Montana Yellowstone County Sheriff’s Department 698 12 1.7

City of Billings Police Department 1,519 11 0.7

Nevada State Department of Motor Vehicles

and Public Safety

33,550 522 1.6

New Mexico City of Albuquerque Police Department 5,338 192 3.6

North Carolinac Rowan County Sheriff’s Department • • •

North Dakota Cass County Sheriff’s Department 735 9 1.2

Ohio State Bureau of Criminal

Identification

and Investigation

61,074 447 0.7

Oklahoma City of Oklahoma City Police Department 9,197 165 1.8

Pennsylvania City of Philadelphia Police Department 10,238 487 4.8

Puerto Rico Puerto Rico Superintendent of Police 5,390 150 2.8

Rhode Island City of Providenced Police Department 175 10 5.7

South Carolina State State Law Enforcement

Division

55,171 2,199 4.0

South Dakota Minnehaha County Sheriff’s Department 236 6 2.5

Texas Harris Countye Sheriff’s Department 10,139 1,117 11.0

City of Houstone Police Department 32,137 2,442 7.6

Vermont City of Montpelier Police Department 38 2 5.3

Washington City of Seattle Police Department 6,213 154 2.5

West Virginia State State Police 25,712 182 0.7

Wyoming City of Cheyenne Police Department 1,012 11 1.1

Totals 441,545 15,506 3.5

(Table notes on next page)

Page 29 GAO/GGD-96-22 Gun Control
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Brady Results: Handgun Purchase Denials

and Follow-Up Enforcement Actions

Note: These denial rates are jurisdiction-specific and are not projectable to other jurisdictions.

aThe data presented are for 4 months only. From February 28, 1994, through September 30,

1994, Brady background checks in Arizona were performed by local law enforcement officers.

Effective October 1, 1994, the Arizona Department of Public Safety took over responsibility for

performing background checks on all prospective handgun buyers who reside in Arizona.

bThe data ATF obtained from the Dekalb County Department of Public Safety come from only one

of the Department’s three divisions that process Brady forms.

cNo data were available for Rowan County, North Carolina.

dThe Providence Police Department does not maintain cumulative data on results of Brady

background checks. The data presented are for the month of January 1995 only.

eThe number of denials for Harris County and the city of Houston (Texas) do not include handgun

purchase applications that were missent to these jurisdictions.

Source: Department of the Treasury, One-Year Progress Report: Brady Handgun Violence

Prevention Act, February 28, 1995, pages 4-6. Notes “a” through “e” are GAO’s clarifications of

ATF’s data.

The rates presented in Treasury’s One-Year Progress Report do not reflect

the fact that some of the initially denied applications were subsequently

approved, following administrative or other appeal procedures.29 For

example, the following information about the number of appealed denials

was presented in June 1995 correspondence from DOJ in response to

congressional requesters:

“In its survey, ATF identified 15,506 handgun denials pursuant to the Brady Law. Of this

number, 2,048 rejections were administratively appealed.30 Of these, 1,620 were resolved

administratively, but ATF does not have information concerning the dispositions. ATF

reports that two of the 15,506 denials were successfully appealed in court.”

“ATF does not have any information concerning the basis for the denials or the reasons for

any reversals of initial denials. As you are no doubt aware, under the Brady Law, the

responsibility for determining whether an applicant seeking to purchase a pistol is eligible

to do so rests with local Chief Law Enforcement Officers (CLEOs). ATF informs us that many

CLEOs maintain no statistical data concerning the specific basis for a Brady denial and lack

29In its One-Year Progress Report, the Treasury Department used other data and assumptions to arrive

at an estimate of total handgun purchase denials for all Brady states. The report noted that historical

data—from certain states that have their own laws requiring screening of prospective purchasers of

handguns—show that an overall denial rate of 2.5 percent would be a conservative figure. Treasury

applied this percentage to the total number of firearms-related queries (1,638,838) made to the FBI’s

criminal history database, that is, queries made by state and local law enforcement authorities during

the period March 1994 through January 1995. Thus, for this 11-month period, Treasury estimated that

potential denials in the Brady states totalled 40,971.

30If all 2,048 appeals are successful, the overall denial rate for the 30 jurisdictions surveyed by ATF

would be 3 percent rather than 3.5 percent as shown in the Treasury’s One-Year Progress Report.

Page 30 GAO/GGD-96-22 Gun Control
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Brady Results: Handgun Purchase Denials

and Follow-Up Enforcement Actions

the resources for doing so. Accordingly, ATF has never requested the submission of such

information and, in fact, lacks the authority to require its collection.”31

Results of Our Survey

of 20 Selected

Jurisdictions

In conducting our survey to obtain data covering the first full year of

Brady Act implementation, we contacted state and local law enforcement

officers representing 20 jurisdictions—the 7 Brady states that have

centralized background check procedures, 6 counties, 2 parishes, and 5

cities. As table 2.2 shows, for handgun purchase applications processed by

the respective law enforcement officers within these 20 jurisdictions, we

found that the overall denial rate was 4.3 percent.

Our survey of 20 jurisdictions and ATF’s survey of 30 jurisdictions for its

One-Year Progress Report (see table 2.1) include 11 jurisdictions covered

in both surveys—the 7 Brady states that have centralized background

check procedures; 2 counties (Dekalb County, Georgia, and Harris County,

Texas); and 2 cities (Houston, Texas, and Seattle, Washington). Our data

differ from ATF data, in part, because we surveyed a longer period—see,

for example, the differences reported for Arizona and Kentucky. However,

for Harris County and the city of Houston, we also include numerous

denials for applications erroneously sent to these law enforcement

agencies; these denials were not reported by ATF.

32 Finally, the numbers of

denials we report for Arkansas; Dekalb County, Georgia; and Ohio are

lower than ATF’s numbers, in part, because our denial data were adjusted

for successful appeals.

Table 2.2: Statistics on Handgun Purchase Applications Processed and Denied in 20 Jurisdictions Contacted by GAO,

February 28, 1994-February 28, 1995

Number of Brady

handgun applications

State Jurisdiction Law enforcement agency Processed Denied

Denial rate

(percentage)

Arizona State Department of 

Public Safetya

40,185 928 2.3

Arkansas State State Police 27,933 377 1.3

Georgia Clayton County Sheriff’s Office 2,484 146 5.9

Cobb Countyb Sheriff’s Office 4,298 151 3.5

Dekalb Countyb Department of 

Public Safety

4,791 409 8.5

(continued)

31Separately addressed letters (both dated June 21, 1995) to Senator Phil Gramm and Senator Jon Kyl

from DOJ’s Office of Legislative Affairs.

32According to an ATF official, ATF did not report these missent forms as denials because the CLEOs

they surveyed did not report them as denials.

Page 31 GAO/GGD-96-22 Gun Control
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Brady Results: Handgun Purchase Denials

and Follow-Up Enforcement Actions

Number of Brady

handgun applications

State Jurisdiction Law enforcement agency Processed Denied

Denial rate

(percentage)

Fulton County Sheriff’s Department 5,369 256 4.8

Kentucky State State Policec 69,420 2,045 2.9

Louisiana Bossier Parish Sheriff’s Department 1,983 49 2.5

Caddo Parish Sheriff’s Office 5,727 220 3.8

Nevada State Department

of Motor Vehicles and Public

Safety

38,719 531 1.4

Ohio State Bureau of Criminal

Identification

& Investigation

67,101 406 0.6

Pennsylvania Allegheny Countyb Sheriff’s Office 26,005 288 1.1

South Carolina State State Law Enforcement

Division

62,812 1,980 3.2

Texas City of Abilene Police Department 1,876 18 1.0

City of 

Fort Worth

Police Departmentd 8,904 1,288 14.5

Harris County Sheriff’s Department 14,514 3,892 26.8

City of Houston Police Department 34,203 6,322 18.5

City of Pasadena Police Department 3,071 112 3.6

Washington City of Seattleb Police Department 7,048 103 1.5

West Virginia Stateb State Police 30,577 219 0.7

Totals 457,020 19,740 4.3

aArizona data cover the period October 1994 through February 1995.

bThese jurisdictions do not maintain detailed information on the reasons for handgun purchase

denials.

cKentucky data cover the period February 28, 1994, through February 25, 1995.

dFort Worth Police Department data cover the period February 28, 1994, through March 3, 1995.

Source: Data provided to GAO by the law enforcement agencies.

Only 15 of the 20 jurisdictions we surveyed maintained records (some

more detailed than others) showing reasons for denials. During the period

covered by our survey (February 28, 1994, through February 28, 1995), the

respective law enforcement officers within these 15 jurisdictions

conducted background checks involving a total of 384,301 handgun

purchase applications and denied 18,570, an overall denial rate of

4.8 percent. Figure 2.1 shows the denial rates across the 15 jurisdictions

Page 32 GAO/GGD-96-22 Gun Control
Chapter 2 

Brady Results: Handgun Purchase Denials

and Follow-Up Enforcement Actions

we contacted. Table 2.3 shows the number of denials by category for each

of these 15 jurisdictions.

Figure 2.1: Denial Rates in the 20

Jurisdictions GAO Contacted,

February 28, 1994-February 28, 1995

0

5

10

15

20

25

30

Jurisdiction

Denial rate (percent)

Ohio

West Virginia

Abilene, TX

Allegheny Co., PA

Arkansas

Nevada 

Seattle, WA

Arizona

Bossier Parrish, LA

Kentucky

South Carolina

Cobb Co., GA

Caddo Parrish, LA

Fulton Co., GA

Clayton Co., GA

Dekalb Co., GA

Ft. W

Houston, TX

orth, TX

Harris Co., TX

Mean denial rate = 4.3 percent

Pasadena, TX

Source: Data provided to GAO by the law enforcement agencies.

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Table 2.3: Summary of Handgun Purchase Denial Statistics for 15 Jurisdictions Contacted by GAO, February 28, 1994-

February 28, 1995

Number of denials by denial category

State

Jurisdiction

(state, county,

parish, or city)

Criminal

history

records

Other

Brady Act

ineligible

categories

1994

Crime Act

(restraining

orders)

Traffic

offenses

Administrative

or other

Total

denials in

jurisdictions

Arizona State 928 0 0 0 0 928

Arkansas State 374 3 0 0 0 377

Georgia Clayton County 106 36 1 0 3 146

Fulton County 256 0 0 0 0 256

Kentucky State 1,903 0 142 0 0 2,045

Louisiana Bossier Parish 47 0 0 0 2 49

Caddo Parish 220 0 0 0 0 220

Nevada State 467 62 2 0 0 531

Ohio State 376 27 0 0 3 406

South Carolina State 1,904 43 0 0 33 1,980

Texas City of Abilene 11 6 0 0 1 18

City of Fort Worth 197 9 0 505 577 1,288

Harris County 1,238 27 0 0 2,627 3,892

City of Houston 905 539 0 908 3,970 6,322

City of Pasadena 111 1 0 0 0 112

Total number by

category of denials 9,043 753 145 1,413 7,216 18,570

Category totals as 

a percentage of

jurisdiction totals 48.7% 4.1% 0.8% 7.6% 38.9% 100.1%a

aPercentage does not total 100.0 due to rounding.

Source: Summary of data presented in tables III.2 through III.16.

Denials Based on Criminal

History Records

Our review of total denials (18,570) for the 15 jurisdictions showed that

9,043, or 48.7 percent, were based on criminal history records (see table

2.3). Of the 9,043 criminal history denials, 8,299 (91.8 percent) were for

either a felony indictment; a felony arrest (with no final disposition shown,

e.g., dismissal, acquittal, or conviction); a felony conviction; or an

outstanding felony warrant (see table III.1).

Next, we attempted to determine how many of the felony-related denials

involved violent crimes—aggravated assault, murder, rape, and

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robbery—as defined by the FBI. However, only 4 of the 15 jurisdictions had

sufficiently detailed information for this analysis. Table 2.4 provides for

these jurisdictions the number of violent crimes and violent crimes as a

percentage of felony-related denials, total denials, and total applications.

Table 2.4: Violent Crime-Related

Denials in Four Jurisdictions Violent crimes as a percent of

Jurisdiction

Number of

violent

crimes

Felonyrelated

denials

Total

denials

Total

applications

Fort Worth,

Texas

29 21.0 2.3 0.3

Harris County,

Texas

133 13.1 3.4 0.9

Ohio 62 16.5 15.3 0.1

South Carolina 147 7.7 7.4 0.2

Source: Developed by GAO on the basis of information provided by the law enforcement

agencies.

Among the 15 jurisdictions, we found differences regarding actions taken

in response to records showing a felony arrest but not showing a

disposition. Law enforcement officers in 4 jurisdictions denied a total of

365 handgun purchase applications based on records showing a felony

arrest but not showing a disposition (see summary table III.1). The four

jurisdictions are Arkansas (table III.3); Clayton County, Georgia (table

III.4); Nevada (table III.9); and Abilene, Texas (table III.12). Generally, in

such situations, the law enforcement officials told us it was incumbent

upon the applicants to contact the appropriate law enforcement agency

and provide evidence of a purchase-qualifying resolution of the arrest.

Some of the other jurisdictions do not follow the practice of making

denials on the basis of felony arrest records alone. For example, an official

with the South Carolina State Law Enforcement Division told us that if a

purchase-disqualifying disposition cannot be determined within 5 business

days, the handgun sale is allowed to proceed. The official added that as of

the end of March 1995, the Division had only one case in which (1) the

disposition of a felony charge against a prospective handgun buyer could

not be determined within 5 business days, (2) the applicant was allowed to

purchase a handgun, and (3) case disposition information subsequently

showed that the purchase should have been denied. Law enforcement

officials from the Division reportedly retrieved the handgun from the

purchaser.

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Misdemeanor warrants accounted for 452 (2.4 percent) of the 18,570

denials (see table III.1). These 452 denials represent 5.0 percent of the

9,043 criminal history denials. Of the 15 jurisdictions providing data on

reasons for handgun purchase denials, 7 denied handgun purchases on the

basis of outstanding misdemeanor warrants—4 states (Arizona, Arkansas,33

Kentucky, and South Carolina); 1 parish (Bossier Parish, Louisiana); and 2

cities (Fort Worth and Pasadena, Texas). Three of these 7 jurisdictions

accounted for 380 (84.1 percent) of the misdemeanor warrant

denials—Arizona had 272 (table III.2), the city of Fort Worth had 58 (table

III.13), and the city of Pasadena had 50 (table III.16). In each of these

jurisdictions, law enforcement officers told us that while neither state nor

local laws prohibit misdemeanants from purchasing handguns, these

persons are considered fugitives from justice, a prohibited category under

Brady. In commenting on a draft of this report, Treasury and ATF said

“because a person may be a fugitive from justice with respect to a

misdemeanor warrant, it could not be concluded that the person was

erroneously denied a handgun without checking the facts of his or her

case.”

Denials Based on Other

Brady Ineligible Categories

Our review of total denials (18,570) for the 15 jurisdictions showed that

753, or 4.1 percent, were based on the other ineligible categories under

Brady—fugitives from justice, unlawful drug users or addicts, individuals

adjudicated mentally defective or committed, persons dishonorably

discharged from the armed services, illegal aliens, and individuals who

have renounced their U.S. citizenship (see tables 2.3 and III.1). These

ineligible purchasers, sometimes referred to as the “other-than-felons”

categories, are particularly difficult for CLEOs to identify. In 1990, for

instance, a study sponsored by DOJ reported that few databases contain

information on these categories of individuals.34

The lack of databases containing information on the other Brady ineligible

categories restricts the ability of law enforcement officers to identify

prospective handgun buyers who fall into one of these categories. For

instance, law enforcement officers in 11 of the 15 jurisdictions told us that

they rely solely on the national and/or state criminal history databases to

obtain information on the other Brady ineligible categories. According to

33Effective January 1, 1995, the Arkansas State Police stopped using misdemeanor warrants as a basis

for denying handgun purchases.

34U.S. Department of Justice, Bureau of Justice Statistics, Identifying Persons, Other Than Felons,

Ineligible to Purchase Firearms: A Feasibility Study, ENFORTH Corporation (Cambridge,

Massachusetts: May 1990).

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several officers, information concerning the other Brady ineligible

categories is only coincidentally included in the criminal history

databases. For example, Arkansas officials made a “mental defective”

denial because criminal history records showed that an individual charged

with battery and criminal property damage had been adjudicated “not

guilty by reason of insanity.” Thus, while Brady specifies a number of

other ineligible categories, most law enforcement officers have no way to

check purchasers’ backgrounds with respect to these disqualifiers. In a

few instances, information on these categories may be found in criminal

history records. The following sections present more specifics on these

disqualifying categories in the 15 jurisdictions we analyzed.

Fugitives From Justice Nonfelon fugitives from justice accounted for 160 (21.2 percent) of the 753

total denials in the other Brady ineligible categories (see table III.1). The

160 denials were made in 5 jurisdictions; however, the city of Houston

(Texas) with 57 denials accounted for 35.6 percent of these denials (see

table III.15). According to a Houston Police Department official, when

background checks identify a fugitive, the information is passed on to the

Department’s Fugitive Division to first verify that the warrant is still active

and, if so, to serve the warrant. In the other four jurisdictions, officers told

us that it is their respective agency’s policy to first confirm that the

warrant is still active and, if it is, either serve it or inform the originating

agency, which is then responsible for any enforcement action.

Unlawful Drug Users or Addicts Applicants classified as unlawful drug users or addicts accounted for 357

(47.4 percent) of the 753 denials in the other Brady ineligible categories

(see table III.1). All 357 denials were in the Texas jurisdictions of Abilene

(table III.12) and Houston (table III.15). According to law enforcement

officers in these jurisdictions, the denials for unlawful drug use were

based on criminal history records showing that the prospective buyers had

arrests for minor drug offenses.

Adjudicated Mentally Defective

or Committed to a Mental

Facility

Prospective handgun buyers classified as having been adjudicated

mentally defective or committed accounted for 38 (5.0 percent) of the 753

denials in the other Brady ineligible categories (see table III.1). These 38

denials were made in 8 jurisdictions. The states of Arkansas and Nevada

and the City of Houston, Texas, cumulatively denied 10 handgun

purchases solely on the basis of mental problems noted in the prospective

buyers’ criminal history records. Two counties (Clayton County, Georgia,

and Harris County, Texas) denied a total of 10 handgun purchases on the

basis of local court records. The state of Ohio and the city of Fort Worth,

Texas, denied a total of 13 handgun purchases on the basis of state or

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county mental health records. For example, six handgun purchases were

denied in Ohio on the basis of state mental hospital records checks (see

table III.10, note b); and seven purchases were denied by the Fort Worth,

Texas, Police Department on the basis of county mental health center

records (see table III.13, note d). In the remaining jurisdiction, South

Carolina, five denials were the result of relatives of the prospective

handgun buyers contacting the state police and submitting physicians’

statements confirming that the prospective buyers previously had been

committed to a mental institution (see table III.11, note e).

Dishonorable Discharges From

the Armed Forces

Prospective handgun buyers classified as having been dishonorably

discharged from the U.S. Armed Forces accounted for 49 (6.5 percent) of

the 753 denials in the other Brady ineligible categories (see table III.1).

These 49 denials were made in 6 jurisdictions—3 states (Nevada, Ohio,

and South Carolina); 1 county (Harris County, Texas); and 2 cities

(Houston and Pasadena, Texas). In each of these jurisdictions, law

enforcement officers told us that these denials were based on criminal

history records showing arrests for being absent without leave from the

military.

Illegal Aliens Illegal aliens accounted for 149 (19.8 percent) of the 753 denials in the

other Brady ineligible categories (see table III.1). The 149 denials were

made in 6 jurisdictions—2 states (Nevada and South Carolina); 1 Texas

county (Harris County); and 3 Texas cities (Abilene, Fort Worth, and

Houston)—on the basis of searches of criminal history records. The

Houston Police Department accounted for 112 (75.2 percent) of the 149

denials (see table III.15). Beyond denying the handgun sales to the illegal

aliens, the Houston Police Department took no other follow-up

enforcement or referral action. The other three Texas jurisdictions

followed this same procedure. In only the two state jurisdictions did law

enforcement officers tell us that they notify the Immigration and

Naturalization Service when illegal aliens are identified.

Renounced U.S. Citizenship In the 15 jurisdictions we analyzed, we found no denials based on

renounced U.S. citizenship (see table III.1).

Denials Based on the 1994

Crime Act

The Violent Crime Control and Law Enforcement Act of 1994 amended 18

U.S.C. Section 922(g) to add another prohibited category to those already

listed in federal firearms statutes. Generally, the 1994 act states that it is

unlawful for any person to possess or receive any firearm if that person is

subject to a court order that

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“restrains such person from harassing, stalking, or threatening an intimate partner of such

person or child of such intimate partner or person, or engaging in other conduct that would

place an intimate partner in reasonable fear of bodily injury to the partner or child.”

As discussed in chapter 1, Brady’s interim provisions require prospective

handgun purchasers to certify that they are not a member of various

categories prohibited from possessing or receiving a firearm. The

categories contained in Brady reflect but do not reference those categories

found at section 922(g) as they existed before the 1994 Crime Act. Thus,

according to ATF’s Associate Chief Counsel (Firearms and Explosives),

even though the 1994 Crime Act amended section 922(g), Brady itself was

not amended to add the court order prohibition. The official told us that

ATF had provided the Department of the Treasury with a list of legislative

proposals, including a proposed technical amendment to Brady.35 Further,

the Associate Chief Counsel told us that as a practical matter, ATF has been

educating law enforcement officers about the “restraining order”

disqualifying category and that applicants can be denied on this basis,

even though ATF Form 5300.35 (see app. I) is awaiting modification

pending passage of the technical amendment.

In the 15 jurisdictions we analyzed, 145 (0.8 percent) of the 18,570

handgun purchase denials were based on the 1994 Crime Act (see table 2.3

and table III.1). The 145 denials were made in 3 jurisdictions—1 denial in

Clayton County, Georgia (table III.4); 142 denials in Kentucky (table III.6);

and 2 denials in Nevada (table III.9). According to an official with the

Kentucky State Police—representing the jurisdiction with 97.9 percent of

the denials in this category—the 142 denials in Kentucky were based on

domestic violence orders, which are similar to restraining orders but

expire (under Kentucky law) after 1 year.

Denials Based on Traffic

Offenses

Traffic offenses accounted for 1,413 (7.6 percent) of the 18,570 denials

(see tables 2.3 and III.1). Of the 15 jurisdictions we analyzed, 2 (both in

Texas) accounted for all of the 1,413 traffic-related denials. The Houston

Police Department accounted for 908 (64.3 percent) of the denials (see

table III.15); and the Fort Worth Police Department accounted for the

remaining 505 denials, or 35.7 percent (see table III.13). In addition to the

1,413 denials in Houston and Fort Worth, 4 other jurisdictions denied

handgun purchases to prospective handgun buyers who had outstanding

misdemeanor warrants, of which an indeterminable number were for

35As of October 1995, Brady had not been amended to include the court order prohibition.

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traffic offenses, according to officials from these jurisdictions.36 Local law

enforcement officials told us that these denials were made because

individuals with outstanding warrants (including warrants involving traffic

offenses) were considered to be fugitives from justice.

Denials Based on

Administrative or Other

Reasons

Denials based on administrative or other reasons accounted for 7,216

(38.9 percent) of the 18,570 handgun purchase denials in the 15

jurisdictions we analyzed (see table 2.3). These 7,216 denials were based

on a variety of reasons, as table III.1 shows, but the large majority involved

application forms sent to the wrong law enforcement agency. It is worth

noting that these denials are not based on arbitrary reasons, however,

because Brady authorizes only the CLEO of the place of residence of the

purchaser to approve the sale. Incomplete forms are also to be denied.

Of the 7,216 administrative or other denials, 7,012 (97.2 percent) were the

result of gun dealers sending handgun purchase applications to the wrong

law enforcement agency. Three Texas jurisdictions accounted for all the

denials in this category—the city of Fort Worth had 434 denials (table

III.13); Harris County had 2,608 denials (table III.14); and the city of

Houston had 3,970 denials (table III.15).

Our review of denial records at the Fort Worth Police Department

indicated that many of the misdirected applications may have resulted

from jurisdictional confusion.37 For example, we found that the vast

majority of the Fort Worth Police Department’s 434 denials in this

category involved individuals with addresses near but not within the

incorporated limits of the city. Although the number of missent Brady

forms might suggest something more than confusion or carelessness, our

analyses did not show any clear patterns, except that the levels of missent

forms remained relatively constant throughout the year.38 In June 1995, we

shared our Fort Worth analyses with ATF headquarters and applicable field

office officials who told us that ATF’s response to jurisdictional confusion

is to disseminate clarifying information to licensed gun dealers.

36These four jurisdictions are Arizona (table III.2, note b); Arkansas (table III.3, note b); Kentucky

(table III.6, note b); and Bossier Parish, Louisiana (table III.7, note a).

37In Texas, the responsibility for performing Brady background checks on prospective handgun buyers

falls on chiefs of police for residents of incorporated cities or towns and on county sheriffs for

residents of unincorporated areas.

38Officials of the three jurisdictions that experienced these denials told us in December 1995 that they

were still receiving a significant number of applications that should have been sent to other CLEOs.

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ATF and DOJ Officials

View Brady Primarily

as a Means to Deny

Purchases to

Criminals

On February 28, 1994—the effective date of Brady—the Assistant Attorney

General (Criminal Division) sent all U.S. Attorneys a memorandum

emphasizing the “new prosecutorial opportunities” created by the act.

Among other matters, this memorandum stated that:

“When a person falsely completes a Brady form and a timely check determines that the

person is ineligible to purchase a handgun, in the discretion of the prosecutor and police,

an effort may be made to arrest and prosecute the person. This may involve inviting the

person to pick up the handgun and arresting the person as s/he picks it up or even staking

out the dealership at which the gun is scheduled to be picked up in the case of a dangerous

fugitive. In the case where the handgun is actually transferred to a prohibited person

because the criminal history data check is untimely, seeking a search and/or arrest warrant

and prosecuting the individual should be considered.”

“Federal prosecutors ought to pay particular attention to intelligence information known to

state and local law enforcement agencies in this regard. When individuals suspected of

other violent and/or drug trafficking conduct are attempting to purchase handguns and are

ineligible to do so, the investigation and prosecution of such individuals ought to be

regarded as a priority.”

In September 1994, at a congressional hearing on the prosecution of

federal gun crimes, the Assistant Attorney General (Criminal Division)

testified that:

“[Before the Brady Act] . . . there was no means by which . . . falsification [of handgun

purchase forms] would routinely be brought to the attention of at least the U.S. Attorneys.

The Brady bill, now, puts into place, with the help of the ATF working with their local police

officers and law enforcement, a means by which I think we will start getting more referrals

with respect to false statements on gun applications.”39

In June 1995, DOJ correspondence to congressional requesters pointed out

that reliable statistics on referrals and prosecutions with respect to such

false statements generally were not available and, indeed, perhaps would

not be meaningful even if they were available:

“[S]tatistics maintained by the Department’s Executive Office of United States’ Attorneys

reflect that, since enactment of the Brady Law, a total of 162 prosecutions have been

initiated in which the making of a false statement in connection with the acquisition or

attempted acquisition of a firearm (18 U.S.C. Section 922(a)(6)) was the principal charge. It

is not possible to determine readily the number of these prosecutions that were initiated as

the result of the falsification of statements on Brady forms, as opposed to the falsification

39Prosecution of Federal Gun Crimes: Hearings Before the Subcommittee on Crime and Criminal

Justice of the House Committee on the Judiciary, 103d Cong., 2d Sess. 51 (1994).

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of statements on other federal firearms acquisition forms.40 . . . In addition, this number

does not reflect cases in which charges may have been brought under Section 922(a)(6) as

part of a larger prosecution involving other, possibly more serious charges, since some of

the computer systems in operation in U.S. Attorneys’ offices are able to track only the lead

charge. More detailed information would require a review of the case file in each of the

Section 922(a)(6) prosecutions reported by the United States Attorneys, a task that would

be unduly burdensome to undertake.

“Such statistics are not a meaningful measure of the effectiveness of the Brady Law. . . .

[T]he statute was not primarily intended as a prosecutive mechanism but rather as a means

of keeping handguns out of the hands of convicted felons, fugitives, and other prohibited

persons. From an enforcement perspective, the Brady Law fully serves its purpose when it

succeeds in thwarting the acquisition of a firearm by such individuals. By that standard, the

success of the Brady Law is reflected by the fact that, since its enactment, approximately

41,00041 applications for the purchase of handguns have been denied.”42

In response to our inquiries about referrals and prosecutions issues, the

Acting Assistant Attorney General—who is a senior DOJ official responsible

for monitoring Brady implementation—reinforced the view that the act

was intended primarily to deter or prevent unauthorized individuals from

obtaining handguns from federally licensed firearms dealers. DOJ has noted

that because prosecutions for false statements on handgun purchase

applications are inefficient and ineffective in advancing this purpose, the

number of prosecutions is not a good measure of Brady’s effectiveness or

usefulness. In addition, with regard to the prospect of prosecuting

Brady-generated cases, the Special Counsel to the Acting Assistant

Attorney General stated that no new resources were provided to U.S.

Attorney Offices, which already must make resource allocation decisions

to address competing demands, including the emphasis in recent years on

prosecuting drug kingpins and pursuing other complex, significant cases.

Similar views were expressed by ATF officials in response to our inquiries.

For instance, the Special Agent in Charge of the Firearms Enforcement

Branch (ATF headquarters) told us that Brady is achieving its primary

purpose of preventing felons from being able to purchase handguns from

gun dealers. However, most U.S. Attorneys do not view the act as being a

40According to an ATF official we contacted, besides the Brady form (see app. I), the only other federal

firearms acquisition form is ATF Form 4473 (“Firearms Transaction Record”), which has been in use

since the Gun Control Act of 1968.

41This figure represents a rounding up of 40,971, which is the number of potential denials that the

Treasury Department estimated in its One-Year Progress Report (see footnote 29 in this chapter).

42Separately addressed letters (both dated June 21, 1995) to Senator Phil Gramm and Senator Jon Kyl

from DOJ’s Office of Legislative Affairs.

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prosecutorial tool to use frequently, irrespective of the volume of referrals

and potential cases involving falsified Brady forms.

In April 1995, ATF headquarters staff queried the agency’s field offices to

obtain an estimate of the total number of Brady-related cases referred by

ATF to U.S. Attorneys Offices. The resulting cumulative estimate was that

as of February 1995, a total of 250 such cases had been referred. Of the 250

referrals, 217 had been declined for prosecution, according to a DOJ

Special Counsel. The DOJ official added that as of April 1995, the other

referrals were still being evaluated with respect to whether fuller

investigations were merited.

Later, we inquired again about the prosecutive status of the open referrals.

The Special Agent in Charge of ATF’s Firearms Enforcement Branch told us

that as of July 1995, at least seven persons nationally had been

successfully prosecuted for making false statements on the Brady handgun

purchase form. This official provided us the supporting details for these

prosecutions, which are presented in table 2.5.

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Table 2.5: Profile of Brady Cases Prosecuted by U.S. Attorneys, as of July 1995

Brady Act prosecution charges and results

Federal judicial district

Previous felony conviction(s)

or other disqualifying basis

falsely certified on the Brady

form Charge/statute Disposition

Louisiana

Eastern

District

Possession of crack cocaine 18 U.S.C. section 922(a)(6) and

922(n)

Pled guilty; 18 months in prison

and, upon release, 3 years’

supervision

Middle

District

Possession of a controlled

substance

18 U.S.C. 922(a)(6) Pled guilty; 12 months’ custody

Rhode Island Delivery of cocaine Two counts of falsifying the

Brady handgun purchase

application form. 

18 U.S.C. 922(a)(6)

Found guilty at trial; 2 years in

prison, 3 years of supervised

release

West Virginia

Southern

District

Assisted New York residents in

obtaining false West Virginia

identification

18 U.S.C. 922(a)(6),

section 2

Pled guilty; 2 years’ probation

Resident of New York state

falsely certified West Virginia

residence

18 U.S.C. 922(a)(6),

section 2

Pled guilty; 6 months’ home

confinement; 3 years’ probation

Resident of New York state

falsely certified West Virginia

residence

18 U.S.C. 922(a)(6), section 2 Pled guilty; 2 years’ probation

Resident of New York state

falsely certified West Virginia

residence

18 U.S.C. 922(a)(6), section 2 Pled guilty; 2 years’ probation

Note: According to ATF’s Special Agent in Charge, Firearms Enforcement Branch, U.S. Attorneys

were prosecuting (as of July 1995) several additional cases referred by ATF, but no details were

publicly available because judicial action was still pending.

Source: ATF’s Firearms Enforcement Branch.

As table 2.5 shows, four federal judicial districts account for the seven

Brady-related prosecutions. None of the prosecutions involved

prospective gun purchasers with previous convictions for violent offenses.

However, three of the cases did involve individuals who lied on the Brady

handgun purchase form about drug-related felony convictions. Table 2.5

also shows that the subsequent Brady prosecutions of these individuals

resulted in prison or custody sentences of 12 to 24 months.

The other four cases—related gun-trafficking cases prosecuted within the

Southern District of West Virginia—involved individuals who had falsified

state identification cards and the Brady handgun purchase form to portray

themselves as residents of West Virginia when, in fact, they were residents

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of New York. In all four cases, the defendants pled guilty. Three of the four

defendants were sentenced to 2 years’ probation, and the fourth was

sentenced to 6 months’ home confinement and 3 years’ probation.

Conclusions No comprehensive, national data existed on handgun purchase

applications and denials for the first year of Brady; however, limited data

from ATF’s and our surveys suggested that the denial rates were around

4 percent in selected jurisdictions analyzed. In the 15 jurisdictions we

analyzed, about half of the denials were to individuals with felony or

misdemeanor criminal histories. Denials based on the other Brady

ineligible categories accounted for only 4.1 percent of the total denials in

the 15 jurisdictions. Almost 40 percent of the total denials from our survey

were because the gun dealers sent the Brady forms to the wrong CLEOs.

However, all of these denials occurred in only 3 of the 15 jurisdictions, and

it is unknown whether any of these purchases would have been denied if

the forms had been sent to the proper CLEOs.

Although we were not able to quantify the number of Brady-related

prosecutions, available information suggested that the number is relatively

small nationally. DOJ views Brady as more of a deterrent than a prosecutive

mechanism, and ATF stated that most cases referred by ATF field offices to

U.S. Attorneys have been declined.

Agency Comments

and Our Evaluation

In its written comments on a draft of this report, DOJ provided updated

information on its efforts to develop databases for identifying nonfelony

classes of ineligible purchasers—fugitives, unlawful drug users or addicts,

individuals adjudicated mentally defective or committed, persons

dishonorably discharged, illegal aliens, and persons who have renounced

U.S. citizenship. Our work did not specifically address the status of efforts

to develop these databases, which will be important components of the

national instant background check system under the phase II permanent

provisions (effective November 30, 1998) of Brady.

DOJ also provided clarifying information regarding arrests and

prosecutions for falsely completing the handgun purchase application

form. DOJ’s view is that Brady’s main purpose is to prevent certain

categories of persons from obtaining handguns from federally licensed gun

dealers. Given this main purpose, DOJ said that our report affords too much

attention to evaluating the success of Brady in generating prosecutions for

falsely completing the Brady handgun purchase form, which is not a good

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measure of Brady’s effectiveness or usefulness. We agree with DOJ that

Brady’s main purpose is to prevent ineligible persons from purchasing

handguns from federally licensed dealers. Most of this chapter—and all of

appendix III—deal with this topic. On the other hand, one objective of our

review was to determine the extent to which handgun purchase denials

had resulted in federal follow-up enforcement actions. In this regard, we

believe the prosecution-related information in our report is relevant,

accurate, and presented in a balanced manner.

Treasury and ATF provided a combined set of comments on the draft.

Treasury stated that it is erroneous to treat Brady forms sent to the wrong

CLEO as denials. We treated them as denials because the CLEOs in our

review treated them as denials. We agree with Treasury that “simply

because the notice was sent to the wrong CLEO does not mean that the

purchaser did not [eventually] receive the handgun.” Treasury also

commented that even though certain handgun transactions are not subject

to Brady’s provisions, nonetheless the law is an important first step in

reducing illegal transfers to private individuals.

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Related Legal Issues

Although there is widespread support for Brady in the law enforcement

community, several legal challenges and the status of federal authority to

penalize or redesignate nonperforming CLEOs have hampered enforcement

of the act in some jurisdictions. Several sheriffs and a sheriff’s association

have challenged the constitutionality of Brady’s interim background check

provision, and most won their cases at the federal district court level.

However, one of the three federal appeals courts considering the

constitutionality of Brady has held that the act is constitutional.

DOJ has determined that it lacks the authority to penalize or redesignate

CLEOs who choose not to check backgrounds of handgun purchasers. DOJ

has noted, however, that injunctive relief,43 for example, may be an option

to compel local law enforcement officials to fulfill their responsibilities

under the act. In two jurisdictions where CLEOs had not performed presale

background checks, ATF’s National Tracing Center data did not show any

crime-related handgun purchases from licensed dealers.

Federal Court

Decisions Are Mixed

Several Federal District

Courts Have Ruled Against

the Background Check

Provision

Generally, the law enforcement community has strongly supported Brady.

For example, a leading proponent of the act’s provisions is the

International Association of Chiefs of Police. During the extended debate

leading to eventual passage of Brady, the Association expressed support

for a 5-day waiting period to allow law enforcement officers an

opportunity to conduct background checks on all prospective handgun

purchasers.

Despite the generally widespread support of the law enforcement

community, eight sheriffs and one sheriff’s association have initiated court

cases challenging the constitutionality of Brady,44 particularly the phase I

provision directing state or local law enforcement officers to make a

43Injunctive relief refers to the use of an injunction—a court order—to compel a party to do or refrain

from doing a particular act.

44Generally, the sheriffs alleged, among other things, that the phase I background check provision of

Brady is beyond the scope of Congress’ Commerce Clause powers (U.S. Const. Art. I Section 8. cl.

3) and is inconsistent with the Tenth Amendment to the U.S. Constitution. The Commerce Clause gives

Congress the exclusive authority to regulate interstate commerce. The Tenth Amendment provides

that powers not delegated to the federal government are reserved to the states and to the people.

Page 47 GAO/GGD-96-22 Gun Control
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reasonable effort to conduct background checks.45 The first eight cases

are separate filings by individual sheriffs—each having jurisdictional

responsibility for one county or parish in his respective state—and the

ninth and most recent case was filed by the Wyoming Sheriff’s

Association.46

As of July 1995, federal district courts had rendered decisions in six of the

nine cases, and all six cases were on appeal to federal circuit courts. In

five of the six decided cases, the courts have held Brady’s phase I

background check provision to be unconstitutional as a violation of the

Tenth Amendment. The first decision in the several challenges to Brady

was Printz v. United States.

47 In that May 1994 decision, for example, the

Federal District Court for Montana ruled that the phase I background

check provision substantially commandeers state executive officers and

indirectly commandeers the legislative processes of the states to

administer an unfunded federal program. The court observed that the

CLEOs are indirectly required to allocate their resources to implement

Brady instead of using those resources to address problems important to

their constituents. In so ruling, the court rejected the federal government’s

argument that the phase I background check provision was discretionary.

The only federal district court ruling to date to hold that Brady’s phase I

background check provision is consistent with the Tenth Amendment

involves the case filed by a county sheriff in Texas (Koog v. United

States).48 In that case, also decided in May 1994, the Federal District Court

for the Western District of Texas reasoned that Brady confers great

discretion on the CLEO to determine what is a reasonable background

search and that no search may be required if the circumstances dictate.

The court concluded that Brady imposes only minimal duties on CLEOs.

From the government’s perspective, five of the six district court decisions

were adverse rulings in that the phase I background check provision was

deemed unconstitutional; therefore, DOJ has appealed the decisions. Even

in these decisions, however, the courts found the remainder of Brady’s

45Although not a party to any of the litigation, the International Association of Chiefs of Police filed

briefs in many of the cases supporting the Brady Act’s provision. Joining the Association in this

support were various other law enforcement groups—the Major Cities Chiefs of Police, the National

Association of Police Organizations, the Fraternal Order of Police, the Police Foundation, the Federal

Law Enforcement Officers Association, the Police Executive Research Forum, the National Troopers

Coalition, the National Organization of Black Law Enforcement Executives, and the International

Brotherhood of Police Organizations.

46The Wyoming Sheriff’s Association has 23 member sheriffs, 1 for each of the state’s 23 counties.

47Printz v. United States, 854 F. Supp. 1503 (D. Mont. 1994).

48Koog v. United States, 852 F. Supp. 1376 (W.D. Tex. 1994).

Page 48 GAO/GGD-96-22 Gun Control
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provisions severable and that they, therefore, remained operative. The

Vermont court, for example, noted that CLEOs could perform background

checks if they voluntarily chose to do so.

Initial Federal Appeals

Court Decision Upholds

Brady’s Background Check

Provision

In September 1995, the U.S. Court of Appeals for the Ninth Circuit upheld

the constitutionality of Brady, saying the federal government can require

state and local law enforcement agencies to check the records of

prospective handgun buyers.49 The court reasoned that Brady’s provision

that law enforcement agencies “make a reasonable effort to ascertain” the

legality of a handgun purchase is a minimal burden that the federal

government can impose on state and local law enforcement agencies. The

court accordingly reversed the judgments of the Arizona and Montana

district courts, which had held Brady unconstitutional as a violation of the

Tenth Amendment (see table 3.1).50

Table 3.1: Overview of Court Cases Filed by Sheriffs Challenging the Constitutionality of Brady, as of October 1995

Federal district court information

State

Jurisdiction of

sherriff

Case citation or file

number Date decided Decision fora Appeals status

Arizona Graham County Mack v. United

States,

856 F. Supp. 1372

(D. Ariz. 1994 )

6-28-94 Sheriff District court

decision reversed by

the U.S. Court of

Appeals for the

Ninth Circuit (9-8-95).

Louisiana Iberia Parish Romero v. United

States, 

883 F. Supp. 1076

(W.D. La. 1994)

12-8-94 Sheriff On appeal to the

U.S. Court of

Appeals for the Fifth

Circuit; stayed

pending the Koog

and McGee

decisions.

Mississippi Forrest County McGee v. United

States,

863 F. Supp. 321

(S.D. Miss. 1994)

6-3-94 Sheriff Consolidated with

Koog and is on

appeal to the U.S.

Court of Appeals for

the Fifth Circuit.

Montana Ravalli County Printz v. United

States,

854 F. Supp. 1503

(D. Mont. 1994)

5-16-94 Sheriff District court

decision reversed by

the U.S. Court of

Appeals for the

Ninth Circuit (9-8-95).

(continued)

49Mack v. United States, 1995 U.S. App. LEXIS 25263 (Ninth Cir. Sept. 8, 1995).

50This ruling applies to the Brady states in the Ninth Circuit. These states are Alaska, Arizona,

Montana, Nevada, and Washington.

Page 49 GAO/GGD-96-22 Gun Control
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Federal district court information

State

Jurisdiction of

sherriff

Case citation or file

number Date decided Decision fora Appeals status

New Mexico Otero County Lee v. United States,

(CIV. 94-1132 LH)

(D. NM 1994)

Pending

North Carolina Alamance County Frye v. United States,

(2:95CV00034)

(M.D. NC 1995)

Pending

Texas Val Verde County Koog v. United

States, 

852 F. Supp. 1376

(W.D. Tex. 1994)

5-31-94 U.S. Consolidated with

McGee and is on

appeal to the U.S.

Court of Appeals for

the Fifth Circuit.

Vermont Orange County Frank v. United

States,

860 F. Supp. 1030 

(D. Vt. 1994)

8-2-94 Sheriff On appeal to the

U.S. Court of

Appeals for the

Second Circuit.

Wyoming Statewide Wyoming Sheriff’s

Association v.

United States,

Case No. 95 CV 066

(D. Wy. 1995)

Pending

aThis refers specifically to court rulings on the Tenth Amendment constitutional challenge issue

regarding Brady’s phase I background check provision.

Source: Data obtained from ATF’s Office of Chief Counsel and from documentation of the court

decisions.

No Background

Checks Had Been

Conducted in Two

Jurisdictions

At the time of our review, no background checks had been conducted in

two of the nine jurisdictions where the CLEOs had challenged Brady.

However, indications were that background checks had been conducted in

the other seven jurisdictions. The situation regarding each of these seven

jurisdictions was as follows:

• While district court decisions were pending in three of the cases, Brady

requirements were still being implemented by the plaintiff sheriffs in the

respective jurisdictions—Otero County, New Mexico; Alamance County,

North Carolina; and the counties in Wyoming.

• Although the sheriff of Forrest County, Mississippi, was relieved of the

requirement to conduct the Brady background checks by the district

court’s ruling, he said he continued to perform the background checks so

that eligible purchasers do not have to wait 5 business days.

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• Also, as noted above, the sheriff of Val Verde County, Texas, lost his case

in district court and, thus, was still conducting background checks.

• State-level agencies assumed responsibility for conducting background

checks in Graham County, Arizona, and Orange County, Vermont.

Effective October 1, 1994, the Arizona Department of Public Safety

assumed a centralized role in conducting background checks for all

residents of that state. In Vermont, when the Orange County sheriff

refused to conduct background checks, the Vermont Department of Public

Safety voluntarily assumed this responsibility in July 1994.

On the other hand, even though Brady has been in effect since

February 28, 1994, indications were that no background checks on

handgun purchasers have been conducted in the other two

jurisdictions—Iberia Parish, Louisiana, and Ravalli County, Montana. The

following sections provide more details about the situations in these two

jurisdictions.

Iberia Parish, Louisiana In March 1995, we contacted a Group Supervisor in ATF’s New Orleans

Area Office, whose geographic operating responsibilities include Iberia

Parish, Louisiana. According to the ATF Group Supervisor:

• After passage of Brady in November 1993, officials from the Louisiana

Attorney General’s Office and the Louisiana State Police met to determine

which law enforcement agency or agencies would be designated to

perform background checks of prospective purchasers of handguns. The

Louisiana State Police officials said their agency was not interested in

serving as the CLEO for implementing Brady Act background checks. Thus,

the Attorney General’s Office and the State Police officials agreed that the

sheriff of each parish should serve as CLEO.

• Shortly thereafter, the Iberia Parish sheriff told dealers and ATF that he

would not be performing background checks because he had insufficient

resources to do so.

• In early 1994, ATF staff visited the sheriff to discuss his decision not to

perform Brady background checks, but the sheriff still insisted that he had

insufficient resources and would not be performing background checks.

The ATF Group Supervisor told us that ATF had no authority to designate or

require another law enforcement agency to perform the background

checks in Iberia Parish and that as of March 1995, no agency had

volunteered to take on the added responsibility. Later that month, we

spoke with the sheriff of Iberia Parish. He told us that his office had never

Page 51 GAO/GGD-96-22 Gun Control
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conducted any Brady background checks and that he did not know how

many, if any, Brady forms had been received by his office.

Ravalli County, Montana In February 1995, we contacted an inspector in ATF’s Portland Area Office,

whose geographic responsibilities include Ravalli County, Montana.

According to the ATF inspector:

• ATF’s Portland Area Office is staffed with only eight inspectors but is

responsible for four states, one of which is Montana. Generally, inspectors

spend most of their time on higher priority efforts and have no time for

inspections related to Brady Act implementation.

• Thus, ATF staff do not know whether the Ravalli County sheriff is

conducting (or has ever conducted) any Brady background checks.

In August 1995, we contacted the Sheriff of Ravalli County, and he told us

he had never conducted Brady background checks and had no plans to do

so.

Federal Agency

Authority to Penalize

or Redesignate CLEOs

DOJ’s Office of Legal Counsel has interpreted Brady’s criminal penalty

provisions to be inapplicable to state or local law enforcement officers in

performance of their duties under the act and that the government,

therefore, lacks the authority to prosecute such officers for violations of

the act.51 A majority of the district courts considering the issue have either

recognized or endorsed such interpretation. Moreover, responsible ATF and

DOJ officials told us that neither Treasury nor DOJ has authority to

redesignate CLEOs in situations where the initially designated CLEOs fail to

perform their expected duties.

Applicability of Criminal

Penalties to CLEOs

Section 102(c) of Brady amends 18 U.S.C. Section 924(a) by providing that

whoever knowingly violates the act’s requirements for presale background

checks shall be fined not more than $1,000, imprisoned for not more than 1

year, or both. In March 1994, after analyzing the application of these

penalties to state and local law enforcement officials, DOJ’s Office of Legal

Counsel concluded that:

“The history of the Act indicates that Congress did not envision its criminal sanctions

applying to CLEOs.

51DOJ has noted, however, that injunctive relief, for example, may be an option to compel local law

enforcement officials to fulfill their responsibilities under the act.

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“This reasoning is reinforced by the great solicitude paid to law enforcement officials in

other provisions of the Act. It would be incongruous to insulate the CLEO against liability for

damages . . . for providing erroneous information that prevents a sale and then turn around

and subject him or her to criminal fine or imprisonment for failure to perform ministerial

acts. Our conclusion is further supported by the impracticality, if not impossibility, of

prosecuting a chief law enforcement officer for failing to make a ‘reasonable effort.’ The

use of the term ‘reasonable effort’ reflects Congress’ apparent intent to vest discretion in

CLEOs by providing a flexible statutory requirement. This elasticity, though common in civil

statutes, is unusual in criminal laws because it does not clearly define a punishable act. It

would be difficult to prosecute a CLEO for failing to make a ‘reasonable effort’, and such

prosecution could be subject to a Fifth Amendment due process challenge. In light of the

fact that applying criminal penalties to the ‘reasonable effort’ requirement would be both

unusual and arguably unconstitutional, we find it difficult to believe that Congress intended

the ‘reasonable effort’ to be criminally enforceable.”52

In summary, DOJ’s Office of Legal Counsel concluded that 18 U.S.C. Section

924(a)(5) does not apply to state officials, and the U.S. government,

therefore, lacks the authority to prosecute state or local law enforcement

officials for not conducting Brady background checks. This position has

been recognized and endorsed by several of the district court decisions

discussed above. For example, in determining the Forrest County,

Mississippi, sheriff’s standing to sue, the federal district court noted that it

believed the Department of Justice “is correct in its interpretation” of

Brady’s penalty provisions.53 DOJ has noted, however, that injunctive relief

may be an option. At the time of our review, DOJ had not sought injunctive

relief.

No Specific Authority to

Redesignate CLEOs

Under Brady, ATF has no specific authority to designate alternate CLEOs for

conducting background checks. In our follow-up inquiries at ATF and DOJ

headquarters, responsible officials told us that neither Treasury nor DOJ

has authority to redesignate CLEOs when the initially designated CLEOs

choose not to perform background checks.

52Memorandum (dated March 16, 1994) from DOJ’s Office of Legal Counsel to Attorney General Janet

Reno, subject: “Application of the Criminal Penalties in the Brady Act to State or Local Law

Enforcement Officers.”

53McGee v. United States, 863 F. Supp. 321 at 324 (S.D. Miss. 1994). More recently, the U.S. Court of

Appeals for the Ninth Circuit vacated, as unripe for judicial review, both the District Court of Arizona

ruling that the criminal provisions apply to CLEOs and are void for vagueness, as well as the District

Court of Montana ruling that the criminal provisions do not apply to CLEOs. The Court of Appeals

noted that the plaintiffs in both cases had not been charged under Brady and that such charges against

them were unlikely in view of DOJ’s official position that the criminal sanctions of Brady do not apply

to CLEOs. Mack v. United States, 1995 U.S. App. LEXIS 25263 at 9-10 (Ninth Cir. Sept. 8, 1995).

Page 53 GAO/GGD-96-22 Gun Control
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Moreover, even regarding the initial designations of CLEOs for purposes of

Brady, federal agencies had no statutory authority and also played no

substantive role in the process, except for disseminating guidance and

encouraging cooperation in implementing the new law. Rather, state and

local officials were expected to determine who would be designated as

CLEOs for purposes of conducting presale background checks.

The Effects of Not

Conducting

Background Checks

Are Unknown

We tried to determine whether there have been any negative effects

resulting from the absence of presale background checks of handgun

purchasers residing in the two jurisdictions discussed above—Iberia

Parish, Louisiana, and Ravalli County, Montana. We wanted to determine,

for example, whether any gun-related crimes had been committed—with a

handgun purchased on or after February 28, 1994 (the effective date of

Brady)—by any resident of these jurisdictions and, if so, whether the

purchaser had a criminal history or other disqualifier identifiable by a

routine background check.

In response to our suggestion, ATF’s National Tracing Center performed a

computerized search of tracing requests received from law enforcement

agencies. The search was designed to determine if any of the tracing

requests involved crime scene handguns that had been purchased in either

of the two jurisdictions after Brady’s effective date. In structuring the

computerized search, the National Tracing Center focused on all federally

licensed dealers with postal address ZIP codes applicable to the two

jurisdictions.

As of July 25, 1995, the Center’s search revealed that a total of seven

crime-tainted handguns had been purchased from dealers within the two

jurisdictions. Six of the handguns had been purchased in Iberia Parish and

one in Ravalli County. However, all seven purchases were made before

Brady went into effect on February 28, 1994. Thus, this search of tracing

requests did not specifically identify any crime-related effects stemming

from the lack of background checks in the two jurisdictions.

On the other hand, since no background checks had been conducted in

these two jurisdictions there is no assurance that ineligible persons did not

purchase handguns from licensed dealers. Moreover, the Tracing Center’s

search covered only one jurisdiction in each state. Thus, the search did not

cover the possibility that residents of one county or parish may have

purchased handguns in another county or parish in their state.

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Conclusions The effects of the legal challenges to Brady are not entirely clear because

the cases are being appealed. The federal district courts have ruled in five

of six cases decided as of July 1995 that CLEOs cannot be required to

perform background checks. However, the decisions found the remainder

of Brady’s provisions severable and that they, therefore, remained

operative.

In September 1995, the U.S. Court of Appeals for the Ninth Circuit upheld

the constitutionality of Brady, reversing the judgments of the Arizona and

Montana district courts. The appeals court reasoned that the phase I

background check provision is a minimal burden that the federal

government can impose on state and local law enforcement agencies

Background checks were being conducted in seven of the nine

jurisdictions where CLEOs had challenged Brady. In the other two

jurisdictions, no checks were being conducted. We did not determine

whether this lack of background checks resulted in handgun purchases by

ineligible individuals.

Agency Comments

and Our Evaluation

In its written comments, DOJ said the fact that local law enforcement

officials are not subject to criminal prosecution does not mean there is no

way to compel them to fulfill their responsibilities under Brady. DOJ

commented that injunctive relief may be an option. We have added this

point to our discussion.

In their combined written comments, Treasury and ATF suggested that we

add language indicating that the federal district court decisions were

limited to the plaintiff sheriffs only and that other CLEOs in surrounding

jurisdictions were still subject to Brady’s phase I background check

provision. While the McGee and Romero district court decisions were

limited to the plaintiff sheriffs, the Mack, Printz, and Frank district court

decisions did not contain such a limitation. For example, the Frank

decision enjoined “the United States from enforcing that provision in the

District of Vermont,” the Mack decision ordered “that defendant United

States of America and its agents are permanently enjoined from further

enforcing 18 U.S.C. § 922(s)(2),” and the Printz decision enjoined “the

United States from enforcing said provision.”

Also, Treasury and ATF commented that the number of jurisdictions

affected by the legal challenges to Brady is very small compared to overall

enforcement of the act. Further, we and the agencies pointed out that the

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federal appeals court decision overturned two of the five district court

decisions against Brady, and the appeals were pending in the remaining

three cases as of October 1995.

Page 56 GAO/GGD-96-22 Gun Control
Page 57 GAO/GGD-96-22 Gun Control
Appendix I 

Brady Handgun Purchase Form

Page 58 GAO/GGD-96-22 Gun Control
Appendix I 

Brady Handgun Purchase Form

Page 59 GAO/GGD-96-22 Gun Control
Appendix I 

Brady Handgun Purchase Form

Page 60 GAO/GGD-96-22 Gun Control
Appendix II 

Designation of “Brady” and

“Brady-Alternative” States

Essentially, Brady requires that federally licensed dealers who sell

handguns must comply with either

• a 5-day waiting period to facilitate background checks or

• an applicable state’s system that meets requisite standards for screening

backgrounds and denying ineligible purchasers.

States in which gun dealers must comply with the 5-day waiting period

have been designated by ATF as “Brady” states. States that operate an

alternative system that meets certain standards have been designated

“Brady-alternative” states by ATF. As of February 28, 1995, 26 states were

categorized as Brady states, and the other 24 states were categorized as

Brady-alternative states (see fig. II.1).

Page 61 GAO/GGD-96-22 Gun Control
Appendix II 

Designation of “Brady” and

“Brady-Alternative” States

Figure II.1: Brady and Brady-Alternative States, as of February 28, 1995

Brady states 


WA

OR

ID

NV

CA UT

AZ

CO

NM

SD

NE

KS

TX

AR

LA

MT

WY

ND

MN

IA

MO

OK

WI

IL

MI

IN

KY

TN

MS

OH

GA

FL

SC

NC

VA

WV

PA

NY

VT

NH

ME

MA

RI

CT NJ 

MD 

DC 

AL

(2)

HI

AK

TN

DE

Brady-alternative states 


Source: ATF.

Each Brady-alternative state is so designated by ATF because the state has

an “alternative” system to the federal 5-day waiting period.1

 Generally, the

alternative system is either (1) a permit or other preapproval system or

(2) a point-of-sale or instant check system. Under either alternative, state

law must require that an authorized official verify that the “information

1

At the time of the effective date (February 28, 1994) of Brady, 32 states were categorized as Brady

states, and the other 18 states were categorized as Brady-alternative states.

Page 62 GAO/GGD-96-22 Gun Control
Appendix II 

Designation of “Brady” and

“Brady-Alternative” States

available” to such official does not indicate that the prospective

purchaser’s possession of the handgun would violate the law.

According to ATF officials, the same minimum standard for background

checks applies to both Brady and Brady-alternative states. That is, at a

minimum, a check of criminal history records is required to screen out all

convicted felons. In applying this minimum standard, ATF recognizes that:

“Certain State laws may enumerate the records to be searched, or require that the State

official conduct ‘such investigation’ as is deemed necessary to determine the person’s

eligibility to possess a handgun. In some cases, this may encompass a check of State

criminal histories only. . . . [A]t a minimum, the States must be able to conduct a criminal

records check of those systems of records available to the State. Thus, if these systems

only contain information indicating felony convictions, such a check would be sufficient to

fall within the permit or instant check exception.”2

The presence of an alternative background check system is a necessary

but not a singly sufficient criterion for a state being designated a

Brady-alternative state. Regardless of the “permit” or the “instant check”

labels, if a state’s statutory scheme does not disqualify all convicted felons,

ATF will not designate the jurisdiction as being a Brady-alternative state.

An example is South Carolina, which has an instant check system but is

still categorized as a Brady state because only violent felons are precluded

(under South Carolina law) from possessing handguns.

Nonetheless, as of May 1995, no state had contested ATF’s decisions on

Brady and Brady-alternative designations, according to agency officials.

Moreover, during our review, we saw indications that ATF has

demonstrated a willingness to work with officials in those Brady states

interested in making the legislative changes needed to achieve

Brady-alternative status. At applicable times, for example, ATF Assistant

Chief Counsels have worked with officials from requesting states to review

whether the respective state’s proposed legislative changes would meet

Brady-alternative criteria. In fact, six states originally categorized as Brady

states have subsequently met alternative requirements—Colorado, Idaho,

Minnesota, New Hampshire, Tennessee, and Utah.

2

ATF document (undated), “Rationale under the Brady Law for Categorization of States as Subject to

the Federal 5-Day Waiting Period Requirement for Handgun Sales or Having Alternative Systems to the

Waiting Period Requirements.”

Page 63 GAO/GGD-96-22 Gun Control
Appendix III 

GAO Analysis of Handgun Purchase Denial

Statistics in Selected Jurisdictions

As discussed in chapter 1, we judgmentally selected 20 jurisdictions (see

table 1.1) to contact for the purpose of developing and analyzing handgun

purchase application and denial statistics covering approximately the first

year of Brady Act implementation—February 28, 1994, through

February 28, 1995. We found that the availability and specificity of records

with respect to reasons for denials varied by jurisdiction.

Moreover, we found that only 15 of the jurisdictions maintained records

(some more detailed than others) showing reasons for denials (see table

2.3). For each of these 15 jurisdictions, table III.1 presents a summary of

the statistics for denials, and tables III.2 through III.16 provide supporting

details.

It should be emphasized that the state and local law enforcement officers

have no statutory obligation to maintain or report denial statistics and,

accordingly, there is no standardized format mandated for accumulating

such data. Nonetheless, to the extent possible, we tried to use a common

format to present the data tables in this appendix. In doing so, however,

we did not substantively recategorize or otherwise “second guess” the

denial reasons recorded in the respective state or local agency’s files, even

though some files (the usual case) gave only broad generic reasons (e.g.,

felony conviction) and other files were much more specific, with dozens of

separately categorized reasons.

Table III.1: Summary Statistics of

Handgun Purchase Denials for 15

Jurisdictions Percent

Denied applications

Category/reason Number

Of

category

Of total

denied

applications

Criminal history records

Total felonies 8,299 91.8 44.7

 Felony indictments 103 0.6

 Felony arrests (no disposition shown) 365 2.0

 Felony convictions 1,663 9.0

 Felony warrants 77 0.4

 Other felony-related denials 6,091a 32.8

Misdemeanor warrants 452 5.0 2.4

Other criminal offenses 292 3.2 1.6

Total 9,043 100.0 48.7

Other Brady ineligible categories

Fugitives from justice 160 21.2 0.9

(continued)

Page 64 GAO/GGD-96-22 Gun Control
Appendix III 

GAO Analysis of Handgun Purchase Denial

Statistics in Selected Jurisdictions

Percent

Denied applications

Category/reason Number

Of

category

Of total

denied

applications

Unlawful drug users or addicts 357 47.4 1.9

Adjudicated mentally defective

or committed

38 5.0 0.2

Dishonorable discharge from

Armed Forces

49 6.5 0.3

Illegal aliens 149 19.8 0.8

Renounced U.S. citizenship 0 0.0 0.0

Total 753 99.9 4.1

1994 Crime Act

Restraining order (harassing,

stalking, or threatening)

145 100.0 0.8

Traffic offenses

Traffic offense warrants 1,413 100.0 7.6

Administrative or other

Dealer transmitted Brady form

to wrong law enforcement agency

7,012 97.2 37.8

Part A of Brady form

incomplete/inaccurate

36 0.5 0.2

Part B of Brady form

incomplete/inaccurate

88 1.2 0.5

Brady form incomplete (part not

specified or illegible

14 0.2 0.1

Violation of state law 33 0.5 0.2

Applicant presented

questionable or invalid

identification

21 0.3 0.1

Form delivered by regular

instead of registered mail

9 0.0 0.0

Applicant under legal age to

purchase handgun

2 0.0 0.0

Copy of Brady form not

transmitted to law enforcement

agency within 1 day

1 0.0 0.0

Total 7,216 99.9 38.9

Grand total 18,570b 100.1c

(Table notes on next page)

Page 65 GAO/GGD-96-22 Gun Control
Appendix III 

GAO Analysis of Handgun Purchase Denial

Statistics in Selected Jurisdictions

aDenial of these 6,091 applications was for felony-related reasons and involved 5 of the 15

jurisdictions we analyzed—Kentucky; Ohio; South Carolina; Harris County, Texas; and Houston,

Texas. In these jurisdictions, the records available for our review did not specify the status (e.g.,

indictment, arrest, or conviction) of the felony offenses.

bThe total number of denials (18,570) represents 4.8 percent of the total (384,301) handgun

purchase applications processed by the 15 jurisdictions through February 28, 1995.

cThis percentage does not add to 100 percent because of rounding.

Source: GAO analysis of data from the 15 jurisdictions.

Table III.2: Handgun Purchase Denial

Statistics for the State of Arizona,

October 1, 1994-February 28, 1995

Denied applications

Category/reason Number

Percent

of total

Criminal history records

Total felonies 656 70.7

 Felony convictions 619 66.7

 Felony warrants 37a 4.0

Misdemeanor warrants 272b 29.3

Total 928 100.0

Other Brady ineligible categories 0 0

1994 Crime Act 0 0

Traffic offenses 0 0

Administrative or other 0 0

Grand total 928c 100.0

Note: The Arizona Department of Public Safety began performing Brady background checks on

October 1, 1994. Prior to that time, background checks were performed by local law enforcement

officers.

aWhen an applicant’s criminal history record includes an outstanding felony warrant, the

Department’s policy is to confirm the active status of the warrant, and if it is still active, to forward

it to the Department’s Fugitive Detail Unit, which is responsible for serving the warrant.

bDenial of these 272 applications was based on the existence of outstanding misdemeanor

warrants. According to a Department spokesperson, these misdemeanor warrants were issued

for offenses ranging from bad checks and theft to fraud and traffic violations. The spokesperson

told us that there is no state or local handgun law prohibiting persons from purchasing a handgun

if they have been found guilty of a misdemeanor offense; however, the Department considers

such individuals to be fugitives from justice if their criminal history records include any

outstanding warrants.

cThe number of denials (928) represents 2.3 percent of the total (40,185) handgun purchase

applications processed by the Arizona Department of Public Safety through February 28, 1995.

Source: Arizona Department of Public Safety.

Page 66 GAO/GGD-96-22 Gun Control
Appendix III 

GAO Analysis of Handgun Purchase Denial

Statistics in Selected Jurisdictions

Table III.3: Handgun Purchase Denial

Statistics for the State of Arkansas,

February 28, 1994-February 28, 1995

Denied applications

Category/reasons Number

Percent

of total

Criminal history records

Total felonies 332 88.1

 Felony arrests (no disposition shown) 143 37.9

 Felony convictions 180 47.7

 Felony warrants 9a 2.4

Misdemeanor warrants 42b 11.1

Total 374 99.2

Other Brady ineligible categories

Adjudicated mentally defective or committed 3c 0.8

1994 Crime Act 0 0

Traffic offenses 0 0

Administrative or other 0 0

Grand total 377d 100.0

aWhen an applicant’s criminal history record includes an outstanding felony warrant, the Arkansas

State Police’s policy is to contact and provide the originating agency with the pertinent

information.

bDenial of these 42 applications was based on the existence of outstanding misdemeanor

warrants. According to a State Police spokesperson, these misdemeanor warrants were issued

for offenses ranging from hot checks to theft to traffic violations. As of January 1, 1995, however,

the State Police no longer denies handgun purchases based on outstanding misdemeanor

warrants. Reportedly, the State Police made this change after consulting ATF officials, who

opined that such denials were contrary to the intent of Brady.

cThe State Police spokesperson told us that denial of these three applications was based upon

criminal history records showing (1) a verdict of not guilty by reason of insanity or (2) a

commitment to a mental institution.

dThe number of denials (377) represents 1.3 percent of the total (27,933) handgun purchase

applications processed by the Arkansas State Police through February 28, 1995.

Source: Arkansas State Police.

Page 67 GAO/GGD-96-22 Gun Control
Appendix III 

GAO Analysis of Handgun Purchase Denial

Statistics in Selected Jurisdictions

Table III.4: Handgun Purchase Denial

Statistics for Clayton County, Georgia,

February 28, 1994-February 28, 1995

Denied applications

Category/reasons Number

Percent

of total

Criminal history records

Total felonies 106 72.6

 Felony arrests (no disposition shown) 65 44.5

 Felony convictions 41 28.1

Total 106 72.6

Other Brady ineligible categories

Fugitives from justice 27a 18.5

Adjudicated mentally defective or committed 9b 6.2

Total 36 24.7

1994 Crime Act

Restraining order (harassing, stalking, or threatening) 1 0.7

Traffic offenses 0 0

Administrative or other

Applicant presented questionable identification 3 2.1

Grand total 146c 100.0

aWhen an applicant’s criminal history record shows the applicant is a fugitive from justice and the

applicant resides in Clayton County, the Sheriff’s policy is to arrest the individual. However, if an

applicant’s criminal history record shows the applicant is a fugitive from justice but the applicant

does not reside in Clayton County, the Office’s policy is to contact and provide the originating

agency with the pertinent information.

bAccording to a spokesperson for the Sheriff, denial of these nine applications was based on

probate court records or other official records involving the commitment of individuals to a mental

institution.

cThe number of denials (146) represents 5.9 percent of the total (2,484) handgun purchase

applications processed by the Clayton County Sheriff’s Office through February 28, 1995.

Source: Clayton County, Georgia, Sheriff’s Office.

Page 68 GAO/GGD-96-22 Gun Control
Appendix III 

GAO Analysis of Handgun Purchase Denial

Statistics in Selected Jurisdictions

Table III.5: Handgun Purchase Denial

Statistics for Fulton County, Georgia,

February 28, 1994-February 28, 1995

Denied applications

Category/reasons Number

Percent

of total

Criminal history records

Total felonies 256 100.0

 Felony convictions 230 89.8

 Felony warrants 26a 10.2

Total 256 100.0

Other Brady ineligible categories 0 0

1994 Crime Act 0 0

Traffic offenses 0 0

Administrative or other 0 0

Grand total 256b 100.0

aWhen an applicant’s criminal history record includes an outstanding felony warrant, the Fulton

County Sheriff’s policy is to arrest the applicant if (1) the individual is a resident of the state of

Georgia or (2) the individual is not a Georgia resident but the originating agency is willing to

extradite the individual for trial. However, if the applicant is a not a Georgia resident and the

originating agency is unwilling to extradite the individual for trial, the Sheriff’s Department will

deny the handgun but take no further enforcement action.

bThe number of denials (256) represents 4.8 percent of the total (5,369) handgun purchase

applications processed by the Fulton County Sheriff’s Department through February 28, 1995.

Source: Fulton County, Georgia, Sheriff’s Department.

Page 69 GAO/GGD-96-22 Gun Control
Appendix III 

GAO Analysis of Handgun Purchase Denial

Statistics in Selected Jurisdictions

Table III.6: Handgun Purchase Denial

Statistics for the State of Kentucky,

February 28, 1994-February 25, 1995

Denied applications

Category/reasons Number

Percent

of total

Criminal history records

Total felonies 1,895a 92.7

Misdemeanor warrants 8b 0.4

Total 1,903 93.1

Other Brady ineligible categories 0 0

1994 Crime Act

Restraining order (harassing, stalking, or threatening) 142c 6.9

Traffic offenses 0 0

Administrative or other 0 0

Grand total 2,045d 100.0

aOf these 1,895 denials, 13 were based on outstanding felony warrants. When an applicant’s

criminal history record includes an outstanding felony warrant, the Kentucky State Police’s policy

is to contact and provide the originating agency with the pertinent information. Denial of the other

1,882 applications was also for felony-related reasons; however, the State Police’s records

available for our review did not specify the status (e.g., indictment, arrest, or conviction) of the

offenses.

bDenial of these eight applications was based on the existence of outstanding misdemeanor

warrants. According to a State Police spokesperson, these misdemeanor warrants were issued

for offenses ranging from making threats to disorderly conduct to traffic violations. The

spokesperson told us that there is no state or local law prohibiting persons from purchasing a

handgun if they have been found guilty of a misdemeanor offense; however, the State Police

considers such individuals to be fugitives from justice if their criminal history records include any

outstanding warrants.

cThe State Police spokesperson also told us that denial of these 142 applications was based on

the existence of domestic violence orders, which are similar to restraining orders but expire

(under Kentucky law) after 1 year.

dThe number of denials (2,045) represents 2.9 percent of the total (69,420) handgun purchase

applications processed by the Kentucky State Police through February 25, 1995.

Source: Kentucky State Police.

Page 70 GAO/GGD-96-22 Gun Control
Appendix III 

GAO Analysis of Handgun Purchase Denial

Statistics in Selected Jurisdictions

Table III.7: Handgun Purchase Denial

Statistics for Bossier Parish,

Louisiana, February 28,

1994-February 28, 1995

Denied applications

Category/reasons Number

Percent

of total

Criminal history records

Total felonies 26 53.1

Felony convictions 26 53.1

Misdemeanor warrants 21a 42.9

Total 47 95.9

Other Brady ineligible categories 0 0

1994 Crime Act 0 0

Traffic offenses 0 0

Administrative or other

Applicant under legal age to purchase handgun 2 4.1

Grand total 49b 100.0

aDenial of these 21 applications was based upon the existence of outstanding misdemeanor

warrants. According to a Bossier Parish Sheriff’s spokesperson, the misdemeanor offenses for

which these warrants were issued ranged from disturbing the peace to traffic tickets. The

Department spokesperson told us that there is no state or local law prohibiting persons from

purchasing a handgun if they have been found guilty of a misdemeanor offense; however, the

Department considers such individuals to be fugitives from justice if their criminal history records

include any outstanding warrants.

bThe number of denials (49) represents 2.5 percent of the total (1,983) handgun purchase

applications processed by the Bossier Parish Sheriff’s Department through February 28, 1995.

Source: Bossier Parish, Louisiana, Sheriff’s Department.

Page 71 GAO/GGD-96-22 Gun Control
Appendix III 

GAO Analysis of Handgun Purchase Denial

Statistics in Selected Jurisdictions

Table III.8: Handgun Purchase Denial

Statistics for Caddo Parish, Louisiana,

February 28, 1994-February 28, 1995

Denied applications

Category/reasons Number

Percent

of total

Criminal history records

Total felonies 155 70.5

 Felony convictions 155 70.5

Other criminal offenses 65a 29.5

Total 220 100.0

Other Brady ineligible categories 0 0

1994 Crime Act 0 0

Traffic offenses 0 0

Administrative or other 0 0

Grand total 220b 100.0

aDenial of these 65 applications was based on the existence of outstanding warrants; however,

the Caddo Parish Sheriff’s records available for our review did not specify the type (e.g., felony or

misdemeanor) of criminal offense involved. According to a spokesperson for the Sheriff, there is

no state or local law prohibiting persons from purchasing a handgun if they have been found

guilty of a misdemeanor offense; however, the Sheriff’s Office considers such individuals to be

fugitives from justice if their criminal history records include any outstanding warrants.

bThe number of denials (220) represents 3.8 percent of the total (5,727) handgun purchase

applications processed by the Caddo Parish Sheriff’s Office through February 28, 1995.

Source: Caddo Parish, Louisiana, Sheriff’s Office.

Page 72 GAO/GGD-96-22 Gun Control
Appendix III 

GAO Analysis of Handgun Purchase Denial

Statistics in Selected Jurisdictions

Table III.9: Handgun Purchase Denial

Statistics for the State of Nevada,

February 28, 1994-February 28, 1995

Denied applications

Category/reasons Number

Percent

of total

Criminal history records

Total felonies 467 87.9

 Felony indictments 80 15.1

 Felony arrests (no disposition shown) 155 29.2

 Felony convictions 232 43.7

Total 467 87.9

Other Brady ineligible categories

Fugitives from justice 47a 8.9

Adjudicated mentally defective or committed 1b 0.2

Dishonorable discharge from Armed Forces 4c 0.8

Illegal aliens 10d 1.9

Total 62 11.7

1994 Crime Act

Restraining order (harassing, stalking, or threatening) 2 0.4

Traffic offenses 0 0

Administrative or other 0 0

Grand total 531e 100.0

aWhen an applicant’s criminal history record shows the applicant is a fugitive from justice, the

Nevada Department of Motor Vehicles and Public Safety’s policy is to contact and provide the

originating agency the pertinent information.

bAccording to a Department spokesperson, denial of this one application was based on a criminal

record showing the results of a mental competency adjudication.

cThe Department spokesperson told us that denial of these four applications was based on

criminal history records showing arrests for being absent without leave from the military.

dThe Department spokesperson also told us that the denial of these 10 applications was based on

criminal history records showing arrest and deportation hearings, which show the applicants were

not legally residing in the United States. In such cases, the Department contacts and provides the

Immigration and Naturalization Service with the pertinent information.

eThe number of denials (531) represents 1.4 percent of the total (38,719) handgun purchase

applications processed by the Nevada Department of Motor Vehicles and Public Safety through

February 28, 1995.

Source: Nevada Department of Motor Vehicles and Public Safety.

Page 73 GAO/GGD-96-22 Gun Control
Appendix III 

GAO Analysis of Handgun Purchase Denial

Statistics in Selected Jurisdictions

Table III.10: Handgun Purchase Denial

Statistics for the State of Ohio,

February 28, 1994-February 28, 1995

Denied applications

Category/reasons Number

Percent

of total

Criminal history records

Total felonies 376a 92.6

Other Brady ineligible categories

Adjudicated mentally defective or committed 6b 1.5

Dishonorable discharge from Armed Forces 21c 5.2

Total 27 6.7

1994 Crime Act 0 0

Traffic offenses 0 0

Administrative or other

Brady form incomplete/inaccurate 3 0.7

Grand total 406d 100.0

aDenial of these 376 applications was for felony-related reasons; however, the Ohio Bureau of

Criminal Identification and Investigations’ records available for our review did not specify the

status (e.g., indictment, arrest, or conviction) of the offense.

bAccording to a Bureau spokesperson, the denial of these six applications was based upon state

mental hospital records.

cThe spokesperson told us that the denial of these 21 applications was based upon criminal

history records showing that the applicants had been arrested for being absent without leave

from the military.

dThe number of denials (406) represents 0.6 percent of the total (67,101) handgun purchase

applications processed by the Ohio Bureau of Criminal Identification and Investigation through

February 28, 1995.

Source: Ohio Bureau of Criminal Identification and Investigation.

Page 74 GAO/GGD-96-22 Gun Control
Appendix III 

GAO Analysis of Handgun Purchase Denial

Statistics in Selected Jurisdictions

Table III.11: Handgun Purchase Denial

Statistics for the State of South

Carolina, February 28,

1994-February 28, 1995

Denied applications

Category/reasons Number

Percent

of total

Criminal history records

Total felonies 1,903a 96.1

Misdemeanor warrants 1 0.1

Total 1,904 96.2

Other Brady ineligible categories

Fugitives from justice 27b 1.4

Adjudicated mentally defective or committed 5c 0.3

Dishonorable discharge from Armed Forces 8d 0.4

Illegal aliens 3e 0.2

Total 43 2.2

1994 Crime Act 0 0

Traffic offenses 0 0

Administrative or other

Violation of state law 33f 1.7

Grand total 1,980g 100.0

(Table notes on next page)

Page 75 GAO/GGD-96-22 Gun Control
Appendix III 

GAO Analysis of Handgun Purchase Denial

Statistics in Selected Jurisdictions

aDenial of these 1,903 applications was based on criminal history records involving felonies

and/or misdemeanors. According to a South Carolina State Law Enforcement Division

spokesperson, all of the misdemeanor-related denials (an indeterminable number) involved

offenses that, under South Carolina law, could have resulted in sentences of more than 2 years.

Regarding the felony-related denials, the Division’s records available for our review did not

specify the status (e.g., indictment, arrest, or conviction) of the offense.

bWhen an applicant’s criminal history record shows the applicant is a fugitive from justice, the

Division’s policy is to confirm the active status of the warrant, and, if it is still active, to contact the

local (city or county) law enforcement agency within the jurisdiction where the applicant resides.

The Division also contacts and provides the originating agency with the pertinent information.

cThe Division spokesperson told us that these five applications were initially approved and the

applicants purchased handguns; however, after relatives of the applicants contacted the Division

and submitted physicians’ statements confirming the applicants had previously been committed

to a mental institution, the Division reversed the approvals and retrieved the handguns.

dThe Division spokesperson also told us that the denial of these eight applications was based on

criminal history records and subsequent contacts with the originating agency and military officials

to confirm the applicants’ dishonorable discharges from the Armed Forces.

eThe Division spokesperson told us that denial of these three applications was based upon

criminal history records and contacts with the arresting or originating agency officials, who

confirmed the applicants had no valid identification. In such cases, the Division contacts and

provides the Immigration and Naturalization Service with the pertinent information.

f

Denial of these 33 applications was based on South Carolina law, which prohibits the purchase

of more than 1 handgun within a 30-day period.

gThe number of denials (1,980) represents 3.2 percent of the total (62,812) handgun purchase

applications processed by the South Carolina State Law Enforcement Division through

February 28, 1995.

Source: South Carolina State Law Enforcement Division.

Page 76 GAO/GGD-96-22 Gun Control
Appendix III 

GAO Analysis of Handgun Purchase Denial

Statistics in Selected Jurisdictions

Table III.12: Handgun Purchase Denial

Statistics for Abilene, Texas,

February 28, 1994-February 28, 1995

Denied applications

Category/reasons Number

Percent

of total

Criminal history records

Total felonies 11 61.1

 Felony arrests (no disposition shown) 2 11.1

 Felony convictions 9a 50.0

Total 11 61.1

Other Brady ineligible categories

Fugitives from justice 2b 11.1

Unlawful drug users or addicts 2c 11.1

Illegal aliens 2d 11.1

Total 6 33.3

1994 Crime Act 0 0

Traffic offenses 0 0

Administrative or other

Applicant presented questionable identification 1 5.6

Grand total 18e 100.0

aAccording to the Abilene Police Department’s records, denial of one of these nine applications

was based on the applicant answering “yes” to the question, “Have you ever been convicted in

any court of a crime punishable by imprisonment for a term exceeding one year?”

bWhen an applicant’s criminal history record shows the applicant is a fugitive from justice, the

Department’s policy is to confirm that the warrant is active, and if so, to arrest the applicant.

cAccording to a Department spokesperson, denial of these two applications was based on the

applicants’ criminal history records involving arrests for drug offenses by local law enforcement

officials.

dThe Department spokesperson told us that denial of these two applications was based on the

applicants answering “yes” to the question, “Are you illegally in the United States?” In such cases,

the Department denies the handgun application but takes no further enforcement action.

eThe number of denials (18) represents 1 percent of the total (1,876) handgun purchase

applications processed by the Abilene Police Department through February 28, 1995.

Source: Abilene, Texas, Police Department.

Page 77 GAO/GGD-96-22 Gun Control
Appendix III 

GAO Analysis of Handgun Purchase Denial

Statistics in Selected Jurisdictions

Table III.13: Handgun Purchase Denial

Statistics for Fort Worth, Texas,

February 28, 1994-March 3, 1995

Denied applications

Category/reasons Number

Percent

of total

Criminal history records

Total felonies 138 10.7

 Felony indictments 23 1.8

 Felony convictions 112 8.7

 Felony warrants 3a 0.2

Misdemeanor warrants 58b 4.5

Other criminal offenses 1c 0.1

Total 197 15.3

Other Brady ineligible categories

Adjudicated mentally defective or committed 7d 0.5

Illegal aliens 2e 0.2

Total 9 0.7

1994 Crime Act 0 0

Traffic offenses

Traffic offense warrants 505 39.2

Administrative or other

Dealer transmitted Brady form to wrong law enforcement

agency

434 33.7

Brady form incomplete/inaccurate 127f 9.9

Brady form illegible 5g 0.4

Form delivered by regular versus registered mail 9 0.7

Copy of Brady form not transmitted to law enforcement

agency within 1 day

1 0.1

Applicant presented invalid identification 1 0.1

Total 577 44.8

Grand total 1,288h 100.0

(Table notes on next page)

Page 78 GAO/GGD-96-22 Gun Control
Appendix III 

GAO Analysis of Handgun Purchase Denial

Statistics in Selected Jurisdictions

aWhen an applicant’s criminal history record includes an outstanding felony warrant, the Fort

Worth Police Department’s policy is to confirm the active status of the warrant, and if it is still

active, to forward it to the Department’s Fugitive Section, which is responsible for the service of

the warrant.

bDenial of these 58 applications was based on the existence of outstanding misdemeanor

warrants. The misdemeanor warrants were issued for offenses ranging from assault and criminal

mischief to hot checks and theft. According to a Department spokesperson, there is no state or

local law prohibiting persons from purchasing a handgun if they have been found guilty of a

misdemeanor offense; however, the Department considers such individuals to be fugitives from

justice if their criminal history records include any outstanding warrants.

cDenial of this application was based on a criminal history record; however, the Department’s

records available for our review did not specify the type (e.g., felony or misdemeanor) of offense.

dDenial of these seven applications was based on records maintained by the Tarrant County

Mental Health Center.

eThe Department spokesperson told us that denial of these two applications was based upon

criminal history records showing that the applicants were not legally residing in the United States.

In such cases, the Department denies the handgun application but takes no further enforcement

action.

f

Of these 127 applications, 33 were denied because Part A of the Brady form was incomplete or

inaccurate, 88 were denied because Part B was incomplete or inaccurate, and 6 others were

denied because an unspecified part of the Brady form was incomplete or inaccurate.

gThese five applications were denied because a facsimile of the Brady form that was provided by

gun dealers was illegible.

hThe number of denials (1,288) represents 14.5 percent of the total (8,904) handgun purchase

applications processed by the Fort Worth Police Department through March 3, 1995.

Source: Fort Worth, Texas, Police Department.

Page 79 GAO/GGD-96-22 Gun Control
Appendix III 

GAO Analysis of Handgun Purchase Denial

Statistics in Selected Jurisdictions

Table III.14: Handgun Purchase Denial

Statistics for Harris County, Texas,

February 28, 1994-February 28, 1995

Denied applications

Category/reasons Number

Percent

of total

Criminal history records

Total felonies 1,012a 26.0

Other criminal offenses 226b 5.8

Total 1,238 31.8

Other Brady ineligible categories

Adjudicated mentally defective or committed 1c 0.0

Dishonorable discharge from Armed Forces 6d 0.2

Illegal aliens 20e 0.5

Total 27 0.7

1994 Crime Act 0 0

Traffic offenses 0 0

Administrative or other

Dealer transmitted Brady form to wrong law enforcement

agency

2,608 67.0

Applicant presented questionable identification 16 0.4

Brady form incomplete/inaccurate 3 0.1

Total 2,627 67.5

Grand total 3,892f 100.0

aDenial of 129 of these 1,012 applications was for felony arrests, but the final disposition was not

shown in the criminal history records. Denial of the remaining 883 applications was also for

felony-related reasons; however, the Harris County Sheriff’s records available for our review did

not specify the status (e.g., indictment, arrest, or conviction) of the offense.

bDenial of these 226 applications was based on outstanding warrants; however, the Department’s

records available for our review did not specify the type (e.g., felony or misdemeanor) of criminal

offense involved.

cAccording to a Department spokesperson, denial of this application was based on a probate

court record or a criminal history record involving the commitment of the individual to a mental

institution.

dThe Department spokesperson told us that denial of these applications was based on criminal

history records involving a dishonorable discharge from the Armed Forces.

eThe Department spokesperson also told us that denial of these 20 applications was based on

criminal history records showing that the applicants were not legal residents of the United States.

f

The number of denials (3,892) represents 26.8 percent of the total (14,514) handgun purchase

applications processed by the Harris County Sheriff’s Department through February 28, 1995. An

indeterminable portion of these denied applications were later approved based on information

subsequently provided by the applicant.

Source: Harris County, Texas, Sheriff’s Department.

Page 80 GAO/GGD-96-22 Gun Control
Appendix III 

GAO Analysis of Handgun Purchase Denial

Statistics in Selected Jurisdictions

Table III.15: Handgun Purchase Denial

Statistics for Houston, Texas,

February 28, 1994-February 28, 1995

Denied applications

Category/reasons Number

Percent

of total

Criminal history records

Total felonies 905a 14.3

Other Brady ineligible categories

Fugitives from justice 57b 0.9

Unlawful drug users or addicts 355c 5.6

Adjudicated mentally defective or committed 6d 0.1

Dishonorable discharge from Armed Forces 9e 0.1

Illegal aliens 112f 1.8

Total 539 8.5

1994 Crime Act 0 0

Traffic offenses

Traffic offense warrants 908 14.4

Administrative or other

Dealer transmitted Brady form to wrong law enforcement

agency

3,970 62.8

Grand total 6,322g 100.0

aDenial of these 905 applications was for felony-related reasons; however, the Houston Police

Department’s records available for our review did not specify the status (e.g., indictment, arrest,

or conviction) of the offense.

bWhen an applicant’s criminal history record shows the applicant is a fugitive from justice, the

Department’s policy is to provide the pertinent information to the Department’s Fugitive Detail

Division, which is responsible for the service of the warrant.

cAccording to a Department spokesperson, denial of these 355 applications was based on

criminal history records showing that felony drug offenses had been committed or a misdemeanor

drug conviction received within 5 years of the date of application; however, the Department’s

records available for our review did not specify the type (e.g., felony or misdemeanor) of criminal

offense involved.

dThe Department spokesperson told us that denial of these six applications was based on

criminal history records showing the results of mental competency adjudications.

eThe Department spokesperson also told us that denial of these nine applications was based on

criminal history records showing arrests for being absent without leave from the military.

f

The Department spokesperson told us that denial of these 112 applications was based on

criminal history records involving the violation of immigration laws. An indeterminable portion of

the denials was because the applicants were not legally residing in the United States. Similarly,

an indeterminable portion of the denials involves the violation of other immigration laws such as

the transportation of illegal aliens. In either case, the Department takes no follow-up enforcement

or referral action.

gThe number of denials (6,322) represents 18.5 percent of the total (34,203) handgun purchase

applications processed by the Houston Police Department through February 28, 1995.

Source: Houston, Texas, Police Department.

Page 81 GAO/GGD-96-22 Gun Control
Appendix III 

GAO Analysis of Handgun Purchase Denial

Statistics in Selected Jurisdictions

Table III.16: Handgun Purchase Denial

Statistics for Pasadena, Texas,

February 28, 1994-February 28, 1995

Denied applications

Category/reasons Number

Percent

of total

Criminal history records

Total felonies 61 54.5

 Felony convictions 59 52.7

 Felony warrants 2a 1.8

Misdemeanor warrants 50b 44.6

Total 111 99.1

Other Brady ineligible categories

Dishonorable discharge from Armed Forces 1c 0.9

1994 Crime Act 0 0

Traffic offenses 0 0

Administrative or other 0 0

Grand total 112d 100.0

aWhen an applicant’s criminal history record includes an outstanding felony warrant, the

Pasadena Police Department’s policy is to serve the warrant. However, if the Department is

unable to serve the warrant, it is to contact and provide the originating agency with the pertinent

information.

bDenial of these 50 applications was based on the existence of outstanding misdemeanor

warrants. According to a Department spokesperson, there is no state or local law prohibiting

persons from purchasing a handgun if they have been found guilty of a misdemeanor offense;

however, the Department considers such individuals to be fugitives from justice if their criminal

history records include any outstanding warrants.

cDenial of this one application was based on criminal history records showing an arrest for being

absent without leave from the military.

dThe number of denials (112) represents 3.6 percent of the total (3,071) handgun purchase

applications processed by the Pasadena Police Department through February 28, 1995.

Source: Pasadena, Texas, Police Department.

Page 82 GAO/GGD-96-22 Gun Control
Appendix IV 

Comments From the Department of the

Treasury and the Bureau of Alcohol,

Tobacco and Firearms

Note: GAO comments

supplementing those in the

report text appear at the

end of this appendix.

Now on pp. 5

and 47.

See comment 1.

Now on pp. 6 and 52.

Now on pp. 6,

8, 40, and 45.

Page 83 GAO/GGD-96-22 Gun Control
Appendix IV 

Comments From the Department of the

Treasury and the Bureau of Alcohol,

Tobacco and Firearms

Now on p. 31.

Now on p. 7.

See p. 36.

Sentence added.

See p. 14.

See p. 35 and

comment 2.

Page 84 GAO/GGD-96-22 Gun Control
Appendix IV 

Comments From the Department of the

Treasury and the Bureau of Alcohol,

Tobacco and Firearms

Substitution made.

Now on p. 15.

Revised. Now on p. 18.

Revised. Now on p. 20.

Substitution made.

Now on p. 20.

Sentence not added.

Now on p. 20.

Page 85 GAO/GGD-96-22 Gun Control
Appendix IV 

Comments From the Department of the

Treasury and the Bureau of Alcohol,

Tobacco and Firearms

Language not added.

Now on p. 21.

Revised. Now

on p. 45.

Now on p. 47.

See p. 55.

See p. 48.

See comment 3.

Page 86 GAO/GGD-96-22 Gun Control
Appendix IV 

Comments From the Department of the

Treasury and the Bureau of Alcohol,

Tobacco and Firearms

Following are GAO’s comments on the Department of the Treasury’s and

the Bureau of Alcohol, Tobacco and Firearms’ (ATF) November 6, 1995,

letter.

GAO’s Comments 1. Treasury and ATF noted that our report refers to ATF and the Department

of Justice (DOJ) and that, to be more consistent, we should refer instead to

DOJ and the Department of the Treasury. We recognize that our references

are to agencies of different levels and that ATF is part of Treasury.

However, our contacts in completing this review were all with DOJ and ATF

employees, so we feel we are appropriately referring to these agencies.

2. Treasury and ATF wanted us to clarify a sentence in which we disclose

what a South Carolina official told us regarding the handling of a handgun

sale when a purchase-disqualifying disposition cannot be determined

within 5 business days. We believe our sentence clearly and accurately

reflects what the official told us.

3. Treasury and ATF noted that the Brady handgun purchase form included

in our draft report was not the most current form. The modified form

contains a section for the prospective handgun purchaser to supply his or

her alien registration number, if applicable. A copy of the modified ATF

form appears in appendix I.

Page 87 GAO/GGD-96-22 Gun Control
Appendix V 

Comments From the Department of Justice

Page 88 GAO/GGD-96-22 Gun Control
Appendix V 

Comments From the Department of Justice

See p. 46.

See p. 18.

Change made

throughout.

See p. 47,

for example.

Page 89 GAO/GGD-96-22 Gun Control
Appendix V 

Comments From the Department of Justice

Page 90 GAO/GGD-96-22 Gun Control
Appendix VI 

Major Contributors to This Report

General Government

Division, Washington,

D.C.

David P. Alexander, Senior Social Science Analyst

Robert P. Glick, Senior Evaluator

Pamela V. Williams, Communications Analyst

Dallas Field Office Beth D. Atkins, Technical Information Specialist

Steve D. Boyles, Evaluator

Danny R. Burton, Assistant Director

Christopher H. Conrad, Senior Evaluator

Donald F. Hass, Senior Evaluator

Office of the General

Counsel

Geoffrey R. Hamilton, Senior Attorney

Jan B. Montgomery, Assistant General Counsel

(187010) Page 91 GAO/GGD-96-22 Gun Control
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