PolitiFact: Few prosecutions of failed gun applicants

12:00 a.m. Saturday, Nov. 11, 2017 Texas News & Politics
Scott Olson
Ted Cruz says, “In 2010, 48,000 felons and fugitives lied and illegally tried to purchase guns. (The Obama administration) prosecuted only 44 of them.”

U.S. Sen. Ted Cruz of Texas has suggested that President Barack Obama’s administration bears some responsibility for the mass shooter in a Texas town acquiring guns.

In a Fox News interview Monday, the Republican senator said that he’d spent the day comforting residents of Sutherland Springs.

Cruz said he felt his anger rising on his return flight to Washington “because this should have been stopped beforehand. Under federal law, it was illegal for this individual to purchase a firearm. He had a conviction for a crime that’s punishable by more than a year in prison and he had a conviction for multiple domestic violence crimes. Both of those, it’s already ineligible.

“But several things happened,” Cruz said. “No. 1, the Air Force, the Obama administration, didn’t report those convictions to the NICS (National Instant Criminal Background Check System) database. That’s an endemic problem; it’s a problem with the federal government, it’s a problem with the states.

“And so, when he went in to buy the guns, they ran the background check and they didn’t find it because it wasn’t in the database. But I’ll tell you we could have prevented this. In 2013, in the wake of Sandy Hook, I joined with Chuck Grassley, we introduced legislation, it was called the Grassley-Cruz legislation, and it was aggressive legislation targeting felons and violent criminals to stop them from getting guns.”

Cruz went on: “There were a couple elements of that legislation that were critical. One, it mandated that federal agencies including the Air Force report to the NICS because that was a problem back then. But two, and this is an even more critical piece, if it had been reported to the background database, when he went into Academy to buy this, these weapons, he lied on the forms. That is a felony to lie on those forms. The Obama administration didn’t prosecute those cases. In 2010, 48,000 felons and fugitives lied and illegally tried to purchase guns. They prosecuted only 44 of them.”

We’re not checking all of what Cruz said, though PolitiFact has found Mostly False Cruz claim in the interview that Democrats filibustered legislation that would’ve resulted in the Texas church shooter being in prison rather than wreaking havoc.

Readers asked us if Cruz was correct about the very few prosecutions of individuals for lying while buying a gun from a licensed dealer.

A 1993 law requires a criminal history background check by the FBI or a state agency. If a potential buyer fails the check, the gun sale is denied and the case is referred to the federal Bureau of Alcohol, Tobacco and Firearms and Explosives.

Some perspective: In 2013, our colleagues at PolitiFact Virginia reviewed federal reports before concluding that the Justice Department hadn’t been prioritizing perjury charges in connection with background checks for at least two administrations. During George W. Bush’s presidency, there had been 70,000 denials for gun purchases a year and some 15/100th of 1 percent of such cases were prosecuted. In the first two years of Obama’s presidency, 8/100th of 1 percent of such cases were prosecuted.

By email, a Cruz spokesman, Phil Novack, told us Cruz drew on a 2012 federal report to reach his 2010 figures.

In 2010, the report says, FBI background checks led to initial denials of 72,659 applications to purchase a gun — with 34,451 denials attributed to a person’s felony indictment or conviction and 13,862 due to the person being a fugitive from justice, or 48,313 combined.

But most of those denials never made it to prosecutorial consideration. The report says the ATF overturned, canceled or chose not to refer for further investigation 71,410 denial cases sent its way by the FBI; 4,732 cases were then referred to field offices for further review. Ultimately, the report says, 62 cases were referred for federal prosecution with 18 of those not taken up by a prosecutor. That leaves 44.

Then again, that doesn’t mean 44 prosecutions proceeded. That’s because a dozen referrals were still pending action by a prosecutor as of Dec. 13, 2011, the report says.

Otherwise, an accompanying chart shows that the 44 possible prosecutions would have been down from 77 prosecutions the year before and 105 in 2008.

We asked the report’s author, Ron Frandsen, about the availability of more recent data. Frandsen, who works for the Missouri-based Regional Justice Information Service, said that to his knowledge, no analyses of post-2010 data have been funded.

Frandsen said Cruz was accurate in his reference to 48,000 denials. He said the reference to 44 prosecutions wasn’t accurate because the “44” from the service’s report refers to charges, not individual people, and those charges involved “more than just felons and fugitives and because some of the prosecutorial decisions were made by state attorneys.”

Why has Uncle Sam seemingly been reluctant to prosecute these cases? A 2004 report from the Justice Department’s inspector general provided several answers. It said ATF agents viewed the violations “as distracting from more important cases, such as those involving firearms, traffickers, gangs, arson and explosives” and “saw little purpose in investigating a standard case in which the NICS successfully prohibited a person from purchasing a firearm.”

The report also said the cases lack “jury appeal” for prosecutors because it is difficult to prove that a prohibited person intentionally lied on the background check and in many parts of the nation “juries are reluctant to convict a person who attempted to purchase a hunting rifle.”

Our ruling:

Cruz said: “In 2010, 48,000 felons and fugitives lied and illegally tried to purchase guns” and the Obama administration “prosecuted only 44 of them.”

There might have been even fewer federal prosecutions of such felons and fugitives, figures indicate, though Cruz failed to note that this paucity wasn’t unique to one administration. It’s also worth clarifying that we don’t know if all 48,000 individuals knowingly misled the government. Few of the tallied background checks resulted in further investigation.

We rate Cruz’s claim Mostly True.

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