Gun Control: Implementation of the Brady Handgun Violence Prevention Act
Released: 1996-01-25T00:00:00

Letter

Introduction

Effective February 28, 1994, the Brady Handgun Violence Prevention Act (Brady) 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. The sale may not be completed for 5 business days unless the dealer receives an approval from the CLEO before that time. 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.

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 themand (2) provides for the eventual point-of-sale background check system. To do this, Brady amends the Gun Control Act of 1968, 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.

“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 certifying that he or she is not a member of various categories prohibited from buying a firearm. 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).

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).

Effective Implementation Largely Depends Upon the Cooperation of Local Law Enforcement Officials and Gun Dealers

“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.”

More recently, the number of licensed dealers has begun to decline—to about 220,000 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. 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.

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 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. 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. 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 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. 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.

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 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.

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 report, ATF had already developed cooperative working relationships with 16 CLEOs in 8 states. Thus, after first checking with ATF officials, we selected 14 of those 16 jurisdictions to build upon the already established relationships. 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 denied 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 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 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.

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). Under the terms of 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. In conducting the survey, ATF contacted state and local law enforcement officers representing 16 jurisdictions—2 states, 7 counties, 2 parishes, and 5 cities. 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. 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.

“In its survey, ATF identified 15,506 handgun denials pursuant to the Brady Law. Of this number, 2,048 rejections were administratively appealed. 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 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.”

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. 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.

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 we contacted. Table 2.3 shows the number of denials by category for each of these 15 jurisdictions.

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 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.

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.

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,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.

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 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 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

“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. 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 traffic offenses, according to officials from these jurisdictions. 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. 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. 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.

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

“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.”

“ . . . 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.”

“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 of statements on other federal firearms acquisition forms. . . . 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. . . . 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 41,000 applications for the purchase of handguns have been denied.”

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 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.

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 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 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 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.

Challenges to Brady: Court Cases and 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, 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, particularly the phase I provision directing state or local law enforcement officers to make a reasonable effort to conduct background checks. 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.

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. 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). 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 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. 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).

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. • 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 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. 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

“The history of the Act indicates that Congress did not envision its criminal sanctions applying to CLEOs. “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.”

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. 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.

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.

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 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.