Discredited Media Matters offers more misleading information on John Lott's CNN appearance
Today, Media Matters has a new post on my appearance on CNN's New Day on Saturday. What I have argued in the past is that the false positive rate for NICS background checks is probably some place between 95 and 99.8 percent. The two newest NICS check annual reports under the Obama administration have cut down on the amount of information provided and thus made it even more difficult than it already was to determine the actual number of false positives. Here is a small portion of one of my previous posts:
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. . . .Take the numbers for 2010.
FBI denials referred to ATF: 76,142
Referred to field: 4,732 (6.2 percent)
Not referred to field: 68,209 (89.6 percent)
Overturned: 3,163 (4.2 percent)
Of those referred to field:
No prosecutorial merit: 1,661
Federal/state guidelines not met: 1,092
Not a prohibited person: 480
Closed by supervisor: 457
No potential or unfounded: 396
Of these 4,732, the 480 for "not a prohibited person" and the 396 for "no potential or unfounded" are clearly false positives. That 876 accounts for 19 percent of the ones referred to the field offices.
So what does prosecutorial merit mean? Well, prosecutorial merit is defined as: "Cases involving restraining orders, domestic violence misdemeanors, non-immigrant aliens, violent felonies, warrants, and indictments are most often included in referral criteria." With the exception of non-violent felonies, this pretty much covers the reasons that a criminal record can keep you from obtaining a gun. Other misdemeanors don't prohibit one from owning a gun. It would be nice to know the breakdown here, but misdemeanors that don't prohibit one from owning a gun would also be counted as false positives.
If the guidelines are not met or the case was closed by a supervisor, these cases could also involve false positives. The more interesting question is can we say from this discussion whether any of these cases are clearly not "false positives" and the answer is "no," not enough information is provided.
So what are we left with? In 2010, out of 76,142 initial denials, there were 44 prosecutions and the government own only 13 of those. Were there also state prosecutions? Sure, the number of those cases appear to be very small and no numbers are provided on them. In addition, state background check systems also identify other people who have tried to buy guns illegally independently of the federal numbers, but if you want to add in the state denials you end up with initial denials being above the 76,142 shown above.
Media Matters cites the Washington Post on denials, but they leave out the fact that even the Washington Post didn't confirm that these initial denials were justified. The Washington Post doesn't really take a position on the central question that Media Matters is citing them for.
Even accounting for all of the appeals and overturned referrals, it seems as if 1.5 million people over the last 14 years have been denied a firearm. Whether one believes these were all the “wrong people” is more a matter of opinion, but the president is free to make that assertion. Clearly, that many people were denied a firearm — and we have no way of knowing how many ever obtained one in the future. . . .