Thousands of people each year try to buy guns nationwide even though they are prohibited by federal or state law, but rarely are those cases elevated to a prosecutor’s desk for charges.

The federal government referred 23,777 federal background check denials for investigation but only 95 of those were referred for prosecution and even fewer — 25 — resulted in prosecutions, according to fiscal 2016 and 2017 federal data. In fiscal 2016, the federal government put 9.5 million through the National Instant Criminal Background Check System.

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Maryland doesn’t fare much better.

From 2016 to June 18, Maryland State Police conducted 501 enforcement actions on failed applications for qualification licenses and purchases, state data shows. Of those, only nine individuals were prosecuted in that same time frame. Five of those prosecutions were announced in 2018 by Maryland Attorney General Brian Frosh. In 2018, the state processed 75,231 license and registration applications.

State police, the federal government and gun advocates on both sides agreed that current laws should be enforced to greater effect. But enforcing those laws and their ultimate effect is a complex issue.

 
(Capital Gazette graphic)

Perjury laws may not prevent the next mass shooting, but it may bring law enforcement to the door of individuals who aren’t allowed to buy guns but tried to do so anyway. One-third of mass shooters were legally prohibited from buying firearms, according to data from Everytown for Gun Safety.

“We have a market that is flooded with guns,” said Liz Banach, executive director of Marylanders to Prevent Gun Violence. “Every gun starts out as a legal purchase. We need to be looking at how they get into those (illegal) markets.”

The process

Maryland and the federal government split responsibility on guns. The state handles regulated firearms — mostly handguns — while the federal government regulates long guns from licensed dealers. Private sales of long guns are not regulated.

In Maryland when someone wants to buy a regulated firearm, they have to go through two separate processes. First, they must acquire a Handgun Qualification License. This requires a background check on top of other requirements and is valid for 10 years. It is illegal to lie on this form.

After acquiring the license, an individual may then purchase a regulated firearm. That process includes another background check. It is also illegal to lie on that form.

When an application is denied, the Maryland State Police Gun Center is notified and troopers investigate, said Sgt. Frank Lopez, a trooper with the center.

There are specific criteria that immediately put the denial on law enforcement and prosecutors’ radar. Those criteria include violent crime convictions, mental health disqualifiers and final protective orders.

If troopers determine someone is prohibited but might have guns, they immediately go talk to the individual and retrieve the firearms, Lopez said. At a minimum, troopers try to talk to every failed applicant, though they can sometimes be hard to find, he said.

When asked if troopers needed more resources to investigate the cases, Lopez said he would never say no to more officers. But he felt confident about the work the gun center was doing for failed applications.

What officers could use is more information from the public, Lopez said. Not every potential mass shooter is going to show up in the background check or another legal process, so tips from the public are valuable. Tips can be emailed to the Gun Center at msp.guns@gmail.com.

“Law enforcement can’t do it alone,” Lopez said.

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The Maryland Office of Attorney General declined to comment on this story because questions about the difficulty of perjury prosecutions amounted to discussing strategy.

Long guns bought in Maryland are regulated by the federal government. Purchases from federally licensed firearm dealers still require a background check like state regulated firearms.

Dealers interact with the National Instant Criminal Background Check System, often getting responses back the same day. Sometimes that response is delayed while the federal government reviews the application. If the federal government does not respond within three business days, the dealer is allowed to sell the firearm. It’s possible for guns to fall into the hands of prohibited people when this happens. This is known as a delayed denial. There were about 4,000 delayed denials in fiscal year 2017, according to the United States Government Accountability Office.

The FBI did not return requests for comment for this story. An FBI official did refer The Capital to the Bureau of Alcohol, Tobacco and Firearms.

“Federal law enforcement and prosecutors work hand-in-hand with state law enforcement and prosecutors to determine which level of prosecution is most appropriate for each case,” said Amanda Hils, a spokeswoman for the ATF.

In March 2018, then-Attorney General Jeff Sessions released a memo asking for greater enforcement of cases in which individuals prohibited from buying guns attempt to do so. Data is not yet available to determine if that greater enforcement has been successful, according to the Department of Justice.

“Since the March 12th AG Sessions memo, we have seen an enhancement of cases and ATF is investigating those and referring the appropriate ones for prosecution,” said Nicole Navas Oxman, a Department of Justice spokeswoman. “The Justice Department has always focused on the most violent criminals and those with guns pose the most danger.”

Changes following the shooting

On June 28, a man blasted through the glass windows of the Capital Gazette office, killing five, Gerald Fischman, Rob Hiaasen, Rebecca Smith, John McNamara and Wendi Winters.

Police said the suspected shooter, Laurel resident Jarrod Ramos, had a grudge against the paper and used a legally acquired shotgun. They have not discussed where and how it was purchased legally. That case has not yet gone to trial.

Lawmakers used the event as a catalyst to pursue stronger long gun regulations. Legislation was put forth to regulate long guns like handguns, but the bill failed.

In 2018 lawmakers did pass legislation establishing Extreme Risk Protective Orders. These allow close relatives and the police to petition the courts for the temporary removal of a person’s firearms. Maryland’s red flag law went into effect in October and there were about 300 requests in its first three months.

That law and a better-educated public could stop events like The Capital Gazette shooting, Banach said.

In April 2018 the FBI released a report that detailed potential indicators of a mass shooting to include abuse, anger, aggression, bullying and discussing an attack among other indicators.

Teaching people to look for the signs could save lives, Banach said.

“That’s not a legislative fix; that’s a cultural fix,” Banach said. “It is about talking to the public and educating the public about what those warning signs are and making the public aware of what those resources are.”

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Some feel lawmakers missed the mark on their legislation.

Regulating shotguns like handguns would not have prevented the Capital Gazette shooting from happening, said Mark Pennak, president of Maryland Shall Issue. This organization advocates for what it calls the preservation of gun rights in Maryland.

Lawmakers should focus on the people not the firearms and enforcing current laws such as illegal straw purchases — buying guns for someone else to bypass the application process — and prohibited people acquiring firearms, Pennak said.

The suspected Capital Gazette shooter could have been convicted of stalking — which he likely qualified for — and he would have been a prohibited person, Pennak said.

A stalking charge may have stopped a licensed dealer purchase, but it wouldn’t have prevented him from buying the gun from a private seller. Police have not revealed how or where the shooter bought the shotgun.

Pennak said that wouldn't have been an issue because private sales are typically done between people who know each other. Maryland law does not require the two individuals know each other.

Stopping mass shootings in which guns are purchased legally is challenging, he said. He encouraged people to train in firearms to protect themselves.

“There is no absolute way to stop those people,” Pennak said. “Every individual constitutional right in the U.S. Constitution has negative public safety consequences.”

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