Criminal Investigations for Innocent Gun Owners?
S. 675, the NICS Denial Notification Act of 2021, is gaining traction in the U.S. Senate.
The NICS Denial Notification Act would open criminal investigations into 100% of background check denials, even though government studies show 9 out of 10 times these denials are false positives.
Passage of this language would result in criminal investigations into TENS OF THOUSANDS of innocent law-abiding Americans for the non-crime of being denied a gun purchase by a broken background check system each year.
Who is behind this?
If you’re from Illinois, Alaska, Connecticut, Delaware, Florida, Iowa, Maine, Minnesota, New Hampshire, Oklahoma, Pennsylvania, South Carolina, Texas, Vermont, or West Virginia, your Senator is a part of the problem here!
Here is a full list of the Senators who openly support opening criminal investigations into innocent Americans over false-positive NICS denials:
- Sen. Coons, Christopher A. (D-DE)
- Sen. Cornyn, John (R-TX)
- Sen. Duckworth, Tammy (D-IL)
- Sen. Rubio, Marco (R-FL)
- Sen. Carper, Thomas R. (D-DE)
- Sen. Lankford, James (R-OK)
- Sen. Klobuchar, Amy (D-MN)
- Sen. Collins, Susan M. (R-ME)
- Sen. Manchin, Joe, III (D-WV)
- Sen. Toomey, Patrick (R-PA)
- Sen. Graham, Lindsey (R-SC)
- Sen. Shaheen, Jeanne (D-NH)
- Sen. Grassley, Chuck (R-IA)
- Sen. Leahy, Patrick J. (D-VT)
- Sen. Blumenthal, Richard (D-CT)
- Sen. Murkowski, Lisa (R-AK)
- Sen. Durbin, Richard J. (D-IL)
If any one of these Senators are yours, they will get an extra scolding from our action alert!
Prosecution of NICS Denial Cases
Of the few legitimate cases brought by the government each year, a Government Accountability Office (GAO) study revealed that prosecutors have a difficult time prosecuting these cases due to a lack of evidence, because these cases are “not appealing to judges and juries from a public safety standpoint,” and even incurring jury nullification (Page 28).
Further, state police reported it was more important to keep officers on traffic duty than to recover firearms potentially transferred after 3 business days to a prohibited person who underwent a background check.
People who willingly submit to background checks are not dangerous individuals. Instead, dangerous criminals overwhelmingly chose to obtain their firearms illegally.
We need to make sure the Senate understands this!
NICS’ Outrageous False-Positive Denial Rate
The overwhelming majority of National Instant Criminal Background Check System (NICS) denials are false positives. A 2016 “audit” of cherry-picked or “judgmentally selected” NICS checks was used by the Obama Administration’s Federal Bureau of Investigation (FBI) to claim a denial “accuracy rate that ranges from 99.3 percent to 99.8 percent.”
However, information obtained by Gun Owners of America pursuant to a Freedom of Information Act (FOIA) request shows the FBI’s records undermine its own claim:
“27.7 percent of [NICS] appeals received during the requested time period were overturned and the firearm purchase/transfer transactions were proceeded.”
Research by Dr. John Lott of the Crime Prevention Research Center has compiled several government reports which reveal the overwhelming failure of NICS false-positive denials.
In 2009, the Federal Bureau of Investigation (FBI) denied 71,010 individuals at the gun store, but only 6.6% (4,681 individuals) were referred for further investigation by ATF field offices. A Department of Justice report stated:
“The remaining denials (66,329, or about 93%) did not meet referral guidelines or were overturned after review by Brady Operations or after the FBI received additional information.”
Of those ATF field office investigations, 51% (2,390 individuals) were of delayed denial cases, not initial denials. 572 of these were admitted to “not [be] a prohibited person.”
This leaves 4,154 legitimate FBI denials in 2009, resulting in a false-positive denial rate of roughly 94.2%.
This is only with the data released and assumes there were no ongoing record-keeping errors still present in government databases at the time of the report’s compilation. Data from 2010 is extremely similar.
A Washington Post report broke down the false-positive denials into the following categories:
- 10.1% “not a prohibited person,”
- 8.4% “no potential or unfounded,”
- 10% “closed by supervisor,”
- 35% “no prosecutorial merit;” and
- 23% “guidelines not met.”
At the federal level, less than one hundred NICS denial cases are prosecuted a year. This is because ATF declines to prosecute these cases. Point of Contact states which run their own NICS checks also prosecute very few cases. Later data provided in a GAO report to Congress also revealed a high error rate and a corresponding minuscule prosecution and conviction rate (Page 22).
Who is Being Falsely Denied?
False-positive NICS denials are so common that many GOA members, their friends, and their families have experienced them.
Imagine if everyone who you know `was falsely denied on a background check also had to deal with a joint federal-local criminal investigation.
9 out of 10 times NICS is falsely denying law-abiding citizens. It could be just about anyone!
- Senior citizens, who despite serving their country honorably in the military, are prevented from buying guns because of misdemeanors from their teenage years.
- Military veterans, who suffer from PTSD and who have guardians handling their finances, are flat-out denied by NICS.
- And then there’s upstanding Americans, like CA Sheriff John Lopey, who have no idea why they are denied a gun purchase by NICS.
What should Congress do?
Congress MUST PROTECT the right of law-abiding Americans to purchase firearms.
Given that the NICS background check denial rate has so many false positives, the next step is certainly not to use those false positives to open criminal investigations.