The Problem with Brady Background Checks: Virtually all of those denied purchasing a gun are false positives

There are several things to understand about how the Brady Law background check process works. At gun stores or other registered dealers, would-be buyers have to fill out a form asking whether there are any criminal convictions or types of mental illness that would prevent them from legally purchasing the weapon. Falsely answering these questions amounts to perjury. If people answer the question by saying that they have a background that prohibits them from buying, a gun dealers stop right there and do not even process those forms. And if people are believed to have knowingly provided false information on the National Instant Criminal Background Check System (NICS) form and prosecutors think that they can prove that knowingly false information was provided, the would-be buyer faces prosecution.

Yet, the NICS system accidentally flags many law-abiding people, stopping those who simply have the same name as a prohibited individual from buying a gun.

Some may remember the five times the late Senator Ted Kennedy was placed on a “no fly list.” If someone is flagged by the NICS system, it is because it appears that they didn’t put down something in their background that disqualified them from buying a gun. Yet, an initial denial does not mean that the individual is actually disqualified from owning a gun. Take the numbers for 2009, the latest year with data available. There were 71,010 initial denials. Of those, only 4,681, or 6.6 percent, were referred to the BATF field offices for further investigation. As a report on these denials by the U.S. Department of Justice indicates, “The remaining denials (66,329 – 93%) did not meet referral guidelines or were overturned after review by Brady Operations or after the FBI received additional information.”  The last two of these three categories are clearly false positives.  The first might involve false positives, but it is possible that the disqualifying offenses are too old (though there are some prosecutions that involve misdemeanor violations that are four decades old so that isn't too obvious).  To put it differently, the initial review didn’t find that these individuals had a record that prevented them from buying a gun. (Numbers for 2010 are available here.)

Still that isn’t the end of the story. Of these 4,681 referrals, over 51 percent, or 2,390 cases, involve “delayed denials,” cases where a check hasn’t even been completed. Of the rest, 2,291 covered cases where initial reviews indicated that the person should have been denied buying a gun. But the government admits that upon further review another 572 of these referrals were found “not [to be] a prohibited person,” leaving about 4,154 cases. That implies an initial false positive rate of roughly 94.2%. And it still doesn’t mean that the government hasn’t made a mistake on the remaining cases. In some cases for example, a person’s criminal record was supposed to be expunged, and it had not been?

Of the cases referred to the BATF field offices there were still a number of false positives.  A 2004 sample found out that about 21 percent of these cases were found to be false positives (the percentage is slightly higher if a weighted sample is used).

Up until this point, no discretion about the merits of the case has entered the picture. If a review of the records indicates that someone is a prohibited individual, they are included. But of these 4,154 cases, only 140 cases involving banned individuals trying to purchase guns being referred to prosecutors, just 60 of which involved providing false information when buying a firearm. Of those 140 cases, prosecutors thought the evidence was strong enough to bring a case only 77 times.

Prosecution may be declined either because further investigation revealed that the person wasn’t prohibited from owning a gun, because false information hadn’t knowingly been provided, or prosecutors didn’t believe that the cases “merited” prosecution. But if someone is indeed prohibited from owning a gun and they left that information off their NICS form, it is relatively easy for authorities to prove they knowingly concealed that information. The most frequently claimed reasons that people failed the background checks are: “restraining orders, domestic violence misdemeanors, non-immigrant aliens, violent felonies, warrants, and indictments.” How hard is it for prosecutors to prove that someone hadn’t accidentally forgotten that they had a conviction for a violent felony or they had a restraining order?

While prosecutors tend to go forward with their strongest cases, those prosecuted are often not found guilty. By the end of 2010, prosecutors had only 32 convictions or pleas agreements, and only 13 of those involved falsified information when buying a gun or illegal possession of a gun, that translates into just 0.018% of the 71,010 initial denials.

So we have two estimates of the false positive rate: 94.2% or 99.98%. The first estimate is obviously too low, it assumes that all the cases identified up to that point are accurate. The second estimate is obviously too high, it only counts as prohibited individuals those who have been proven so beyond a reasonable doubt in a court of law and then only counts federal cases, completely ignoring state level enforcement.  These numbers are just one of the reason that no study by criminologists or economists has found that the Federal Brady Law has reduced national crime rates.

Of course, being falsely labeled as being ineligible to own a gun isn’t the only cost imposed on law-abiding Americans. Even those who aren’t prevented from buying a gun face delays in getting approved. Eight percent of the National Instant Criminal Background Check System checks are “not resolved immediately.” Two-thirds of those checks take up to 3 business days, and the rest take even longer, though these further delays can’t stop one from obtaining a gun at that point.

Some other information is available here.