Prosecutions for 'lie and buy' gun purchases have been rare
Of 12,700 ATF probes, just 12 of those cases led to prosecutions.
The prosecution of Kettering resident Ethan Kollie, a friend of Dayton mass-shooter Connor Betts, for allegedly lying on the federal background check form before buying a firearm is rare, a review by the Dayton Daily News found.
The title of a September 2018 Government Accountability Office (GAO) report tells the tale: “Few Individuals Denied Firearms Purchases Are Prosecuted and ATF Should Assess Use of Warning Notices in Lieu of Prosecutions.”
From the report itself:Ofmore than 12,700 U.S. Justice Dept. Alcohol Tobacco and Firearms (ATF) investigations into people thought to have lied on the federal National Instant Criminal Background Check System in fiscal 2017 — people whose gun purchases were denied for that reason — 12 of those cases resulted in actual prosecutions.
Vipal Patel, first assistant U.S. attorney in the Southern District of Ohio, said he and his colleagues take seriously background check falsifications and “straw purchases” — attempts to buy firearms for someone who is prohibited from buying one.
Added Patel: “As this case shows, lying can have dramatic and serious consequences.”
The charges against Kollie do not involve the weapon Betts used in the Oregon District. Patel, however, noted that a federal complaint alleges that Kollie bought the body armor, the double-barrel, drum-style magazine and the upper receiver to the AR-style pistol that Betts used Aug. 4.
Kollie’s lawyer, Dayton attorney Nicholas Gounaris, has said that the firearm at issue in the charges against Kollie was not used in any violent offense, including the Aug. 4 massacre on East Fifth Street.
“There is no doubt that federal prosecutions for allegedly falsifying information on the ATF 4473 form have been rare,” Gounaris said in an email. “Only a very small percentage of these cases have led to criminal prosecution. Therefore, it is surprising that Mr. Kollie is being charged.”
He added that Kollie cooperated “quickly and honestly with federal authorities in order to assist law enforcement with any relevant information regarding the shooter and the tragic mass shooting in the Oregon district.”
“It appears that his willingness to cooperate may ultimately lead to formal charges being levied against him,” the defense attorney added.
Kollie, 24, faces federal charges of possession of a firearm by an unlawful user/ addict of a controlled substance and making a false statement regarding firearms. Kollie was a friend of Betts, also 24, whom Dayton police identified as the shooter who wielded a modified AR-style pistol, killing nine people and injuring 17 others Aug. 4 in Dayton’s Oregon District. Dayton police shot and killed Betts within 32 seconds of his shooting rampage.
The GAO report also said that at the state level, officials from 10 of 13 states selected for the report said they did not investigate or prosecute firearm-purchase denials. The remaining three states were active, however, reporting about 1,900 referrals for prosecution in 2017 and about 470 convictions.
The federal government processes background checks through the National Instant Criminal Background Check System when people attempt to buy firearms.
Prospective buyers are expected to complete ATF Form 4473, offering identifying information and answering questions about criminal history, drug use and other subjects, to demonstrate eligibility to buy a firearm.
In 2017, about 25.6 million firearm-related background checks were processed through the national system, according to the GAO.
About 181,000 of the attempted purchases at federal and state levels were denied because a would-be buyer was prohibited from owning a firearm.
Prosecuting such crimes is tough with limited resources, said Philip Cook, professor emeritus of public policy studies at Duke University.
“I tend to be sympathetic with the U.S. attorneys on this matter,” Cook said in an email to the Dayton Daily News. “They do not have the capacity to pursue every criminal case presented to them, and so must be selective.”
Rather than prosecute “minor regulatory violations,” prosecutors may be justified in focusing on more serious crimes, he added.
“And prosecuting someone who appears to have lied in applying for a gun may be a challenge if their criminal intent is not obvious,” he also said. Some would-be buyers may not believe that a minor crime they were convicted of years ago is a felony as defined by federal law, and some might believe their gun rights have been restored, Cook said.
Adam Winkler, a professor of constitutional law at UCLA Law School, agreed that limited resources play a role in the decision not to prosecute.
“In an ideal world, we would be prosecuting these cases, and we would be creating disincentives for people to lie and buy,” he said.
Making a case to a jury can also be difficult, he added.
“It’s hard to go to a jury and say, ‘Put someone in a cage because they lied on a form,’” he said.
Kollie told federal investigators that he has used marijuana, a federal complaint says. The complaint said that Kollie had checked “no” on the ATF form that must be completed to buy a firearm from a local dealer.
“Kollie stated that he answered ‘no’ to the question regarding drug use,” the complaint stated. “When asked why he lied, Kollie stated he knew that if he told the truth about his drug use, he would not be allowed to purchase a firearm, so he lied and answered ‘no.”
“Congress criminalized that for a reason,” Patel said. “Because, as you know, there are not a lot of checks in terms of purchasing and processing firearms. So whatever (checks) there are, are super important.”
‘It’s hard to go to a jury and say, “Put someone in a cage because they lied on a form.” ’
Adam Winkler Professor of constitutional law at UCLA Law School