Lying on Form 4473 is a felony, so why is it so rarely charged

Picture a convicted felon who walks into a gun store, fills out the federal form, checks the box that says he has never been convicted of a felony, and hands it across the counter. The dealer runs the check. The check comes back: denied. The man shrugs, walks out and, as far as the federal government is concerned, goes about his day, with the unbothered air of a motorist who has just been waved through a speed trap.

That is not a story about a loophole. Everything in it was against the law twice. He was not allowed to have the gun, and he committed a separate crime by lying on the form to get it. The system caught him. Then the system, in the overwhelming run of cases, did nothing. If we want to argue about gun policy like adults, this is the place to begin, because it tests whether anyone means what they say about enforcing the law.

The form

The document is ATF Form 4473, formally the Firearms Transaction Record. Anyone who buys a firearm from a licensed dealer fills it out. It asks the buyer for his name, address, date of birth and other identifying details, and then asks a series of yes-or-no questions that track the categories of people the law forbids to have firearms. Are you a convicted felon, or under indictment for a felony? A fugitive? An unlawful user of, or addicted to, a controlled substance? Have you been adjudicated as a mental defective or committed to a mental institution? Have you been convicted of a misdemeanor crime of domestic violence? Are you subject to a qualifying restraining order? Are you an unlawful alien? And one more: are you the actual buyer of the firearm, or are you buying it for someone else?

The buyer certifies his answers by signing, and the form warns him that making a false statement is a crime. The dealer keeps the form. The government does not keep a registry of buyers; the paper stays with the dealer unless ATF needs it to trace a gun, a limitation Congress wrote into the Firearm Owners Protection Act of 1986, as I recount in ninety years of federal gun law in the dates that changed the rules.

The statutes

Two provisions carry the weight.

18 U.S.C. 922(a)(6) makes it unlawful for any person, in connection with the acquisition of a firearm from a licensed dealer, knowingly to make any false or fictitious oral or written statement, or to furnish false identification, intended or likely to deceive the dealer about any fact material to the lawfulness of the sale. The word "knowingly" matters, and so does "material."

18 U.S.C. 924 supplies the penalty. A knowing violation of 922(a)(6) is a felony punishable by up to ten years in federal prison, a fine, or both, under 924(a)(2). Congress adjusted the maximums for some related offenses in 2022, so check the current text on Congress.gov. What is not in doubt is the category: this is a felony and not a paperwork infraction.

A related offense is the straw purchase, where a person who is lawfully allowed to buy a gun fills out the form and says he is the buyer when he is really buying it for someone else, often someone who could not pass the check. In Abramski v. United States (2014), the Supreme Court, five to four, held that such a false statement is material even if the person for whom the gun was bought could lawfully have bought it himself. The Court's logic was that the system depends on knowing who the real buyer is, so a lie about that is a lie about a material fact. Whatever you think of the result, the point is that Congress and the Court treat the form seriously.

The check, and what happens to a denial

The check is the National Instant Criminal Background Check System, NICS, operated by the FBI, which began operating in 1998 under the Brady Act, a history I tell in Printz v. United States and the sheriffs who refused to be drafted by Washington. After a buyer fills out the form, the dealer contacts NICS, directly or through a state agency in states that run their own checks. NICS searches federal databases, in particular records of criminal history, protective orders, fugitives, immigration status and some mental-health adjudications, and returns one of three answers: proceed, denied or delayed.

A delay means the examiner needs more information. If the system has not given a final answer within three business days, federal law permits the dealer, at his option, to transfer the gun. That "default proceed" rule is controversial, and it has been the subject of its own proposals, but it is not our subject.

When the answer is denied, the sale does not happen. The denial itself is a data point. A person has just attempted to acquire a gun, and the government has determined that he is prohibited. What then happens to that information is the question.

In general, the FBI's NICS section notifies ATF of denials that appear to be violations of federal law, and ATF field divisions decide which to investigate and refer to a United States Attorney's office for possible prosecution. Not every denial is a case a prosecutor will take. A denial can rest on an error in the record, and a person who was denied may not have known he was prohibited, while others plainly knew. That is why the question of which cases ATF sends on, and which prosecutors accept, matters so much.

What the Government Accountability Office found

In September 2018, the Government Accountability Office, the investigative arm of Congress, issued report GAO-18-440 on what happens to NICS denials. Its table for fiscal year 2017 shows about 112,000 federal denials, of which ATF referred about 12,700 to its field divisions for further investigation, and U.S. Attorney's Offices had prosecuted 12 of those cases as of June 2018. GAO also reported reasons: ATF field divisions said the growing number of referrals, up from about 5,200 in fiscal year 2011, was time intensive and strained limited resources; officials of the Executive Office for United States Attorneys said these cases can take significant effort and may offer little public-safety value compared with other gun-violence cases; and state prosecutors said that proving the buyer knew he was prohibited was a challenge. GAO recommended that ATF assess how its field divisions use warning notices in lieu of prosecution.

Put that in arithmetic. Twelve prosecutions out of about 112,000 denials is roughly one in nine thousand, or about a hundredth of one percent. Of the 12,700 cases ATF referred for investigation, fewer than one in a thousand had reached prosecution at the time of the report. The shape of the funnel, a wide mouth and a very narrow neck, is the part that should bother anyone who says he wants the laws enforced. GAO also noted that ATF generally sends cases to prosecutors only when aggravating circumstances exist, such as violent felonies or multiple serious offenses in a short period.

Why it matters

I make three points about why this is more than bookkeeping.

One. The denial is a lead. A person who has been convicted of a felony and then tries to buy a gun from a licensed dealer has told the government something. He wants a gun. He is willing to lie to get one. A police officer who learned that a known felon was shopping for a firearm would be very interested. The federal system learns exactly this and, mostly, files it. A prosecution is a deterrent to the next one, and a warning label nobody reads is not, and an investigation can find the person before he finds another way to get a gun, perhaps through a straw buyer or the black market.

Two. The law-abiding are the ones who carry the burden. The ordinary buyer fills out the form, waits, and has his name run through the database. The system's costs fall on the honest. If the system treats the dishonest attempt as an event with no consequence, it has created friction for the many without a penalty for the few.

Three. A law that is not enforced is a statement of values with no force behind it. Congress said it was a serious crime. The executive decides which crimes are serious by choosing which to charge. I would argue that when the executive declines to charge a whole class of crimes, it has amended the statute by neglect.

The constitutional note

The Constitution, in Article II, Section 3, says the President "shall take Care that the Laws be faithfully executed." The duty is easy to state and hard to apply. No one expects the government to prosecute every violation of every law, and prosecutors have always had discretion about how to use scarce resources. The Supreme Court has recognized that the decision whether to prosecute is committed in large part to the executive.

But the discretion is for the particular case. It is not a license to ignore a category. I would draw a distinction between a prosecutor who declines to bring a weak case against a man whose name was matched in error, which is sensible, and a department that lets the strongest cases, prohibited people who knowingly lied to get firearms, go largely unprosecuted year after year. The first is judgment. The second is a policy, and a policy of non-enforcement of a gun law should be defended in the open by someone who will own it.

There is a complication that cuts the other way. In the early 2000s the federal government launched Project Safe Neighborhoods, a program, begun in 2001 and run by the Justice Department with ATF, to reduce gun violence by focusing federal and local prosecutors on gun crimes. Programs like it are the kind of approach I favor. I note them because they show that the choice to prosecute is a choice, and that it can be made differently.

The strongest counterargument

Here is the best argument from the other side.

Prosecuting denied buyers is a poor use of limited resources. Many denials are errors or involve people who are not dangerous: an old nonviolent conviction, a misunderstanding of a form, a clerical mismatch. The most dangerous offenders do not go to licensed dealers; they get guns from theft, from straw purchasers and from the street. Prosecutors should go after violent offenders and gun traffickers, where an hour of work does more good. And the fact that denials are not prosecuted is a reason to close gaps in the background-check system, not to claim that existing law is sufficient.

That is a reasonable position, and I will answer it in points.

1. Prioritizing is fine. Ignoring is not. If prosecutors have to choose, the choice should be explicit, and the cases they decline should be the weak ones. The cases that involve violent felons, fugitives and persons under domestic-violence orders knowingly lying should be near the top of the list. A policy of treating those as low priority needs a reason.
2. The "they get guns elsewhere" argument is an argument for enforcement. If prohibited people turn to straw purchasers and the black market, then the dealer's counter is one of the few places where the system sees them. Seeing them and doing nothing wastes the one view we have.
3. Errors argue for better data, not for inaction. A system that wrongly denies innocent buyers should be fixed with an easy, fast appeal and better records, and a system that correctly identifies prohibited buyers should act on what it finds. Both are enforcement questions, and I do not see why a person who wants good data would oppose investigating the hard cases.
4. The gap argument cuts against new statutes. If the executive is not enforcing the 922(a)(6) rule that exists, we have no reason to expect it to enforce a new one. Passing more laws on top of an unenforced base risks adding a stack of paper to a pile of paper. The burden of proof is on those who say the next statute will be enforced better than the last.
5. Deterrence depends on a credible threat. Even an occasional publicized prosecution changes behavior, because the people who consider lying on the form know that someone, sometimes, is charged. A threat that is never carried out deters no one.

I do not claim that enforcement alone solves anything. A thorough approach has other parts, including better reporting of disqualifying records to the database, which is a real and continuing weakness, and a serious look at trafficking. But if you take away one idea from this post, it is that a country that cannot enforce the gun laws it has is poorly placed to promise what the next ones will do. The same reasoning applies to the claim in After Chevron fell, ATF rules lost the deference they quietly relied on that Congress should write the crimes itself: laws should be clear, and then they should be applied.

Enforce, then measure

A conservative approach to this has three steps. First, enforce the existing prohibitions against knowing violators, beginning with violent felons and domestic abusers. Second, publish the numbers: how many denials, how many referrals, how many cases, how many convictions, so the public can see what the system does. Third, if the numbers show a gap that more enforcement cannot close, then and only then consider new law, and subject the new law to the test I proposed in What the Justice Department's own studies found about the 1994 ban: a real problem, a fit, no better alternative and a willingness to be measured.

It would be a cheap thing to try. It is the sort of reform nobody has to be a partisan to support. The funnel is an embarrassment to the people who wrote the law and to the people who administer it. A fair-minded person on either side should want to know why it looks that way.

The case in brief

1. Lying on ATF Form 4473 to buy a gun from a dealer violates 18 U.S.C. 922(a)(6), a felony, and the same form requires the buyer to say whether he is the actual buyer, as Abramski (2014) confirms.
2. The National Instant Criminal Background Check System catches denied buyers, but the 2018 Government Accountability Office review found that only a small share of denials were referred and very few were prosecuted.
3. A denial is a lead, the burden of the system falls on the honest, and a law that is not enforced deters no one.
4. The best counterargument says prosecutors should prioritize violent offenders and traffickers, and the answer is that prioritizing is fine but ignoring a whole category of knowing violators is a policy that someone should defend in the open.
5. Enforce the existing law, publish the numbers, and write new laws only when the numbers show that enforcement cannot do the job.

What you can do: ask your member of Congress, in writing, how many NICS denials were referred and prosecuted in the most recent year, and ask the Justice Department's Office of Legislative Affairs to publish the answer.