A Trump administration plan to crack down on people who lie to buy guns faces a giant hurdle: It relies on federal agents and prosecutors who are already overwhelmed with other responsibilities.
Prosecutors and officials from the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives have historically preferred to use their limited resources to deal with violent crimes rather than aggressively pursue people who give false information. Lying on the forms is a felony, and prosecutors sometimes struggle to win convictions.
Still, both sides of the gun control debate welcomed the effort, as President Donald Trump faced criticism for backpedaling from his earlier demands for sweeping reforms in favor of the powerful National Rifle Association. By enforcing existing federal law,plan allows the Trump administration to show it is taking action on gun crime in the aftermath of the Florida school shootings while avoiding more restrictive approaches that would never win approval from gun-rights groups or congressional Republicans.
Tens of thousands of people are denied guns each year because of problems with their background checks. But a review by the Justice Department's inspector general found prosecutions for lying during that process are rare. The ATF referred more than 500 so-called lie-and-try cases to federal prosecutors between 2008 and 2015, the review found, but fewer than 32 cases each year were even considered for prosecution.
"We must vigilantly protect the integrity of the background check system through appropriate prosecution of those who attempt to circumvent the law," Sessions wrote in a memo directing federal prosecutors to bring more cases. It was among several Justice Department initiatives unrolled in response to the shootings in Parkland, Florida, which left 17 people dead.
Sessions told federal prosecutors to focus primarily on people denied guns because they are violent felons, fugitives or have domestic violence convictions, which the Justice Department says will help preserve limited resources for cases that pose the greatest threat to public safety. But some current and former law enforcement officials feared that any additional emphasis on such cases would detract from more pressing concerns, such as prosecuting people who buy guns on behalf of felons or those who try to buy guns illegally and are successful.
Lie-and-try cases are hard to try in court because prosecutors must convince a jury that a prospective gun buyer intended to lie, rather than just made a mistake or misunderstood what the law allows, which is sometimes the case. And officials stress there are other ways for someone who can't legally own a gun to get one, such as from private sellers or at gun shows, where federal background checks aren't required.
"There is a reason why they are not getting prosecuted heavily at the moment, and that's because they are less-than-compelling cases. They're not getting guns," John Walsh, a former U.S. attorney in Colorado, said.
Walsh's 2013 testimony about the Obama administration's gun control proposals quickly turned to a grilling from Republican lawmakers about why so few people were being prosecuted for lying in their attempts to buy guns. An Obama appointee, he argued there was no way the Justice Department could have prosecuted more than a million people who were rejected for gun purchases over a 15-year period.
An ATF spokesman said the agency supports the administration's approach and would shift resources accordingly.
There are reasons for concern about those who try and fail to buy guns. Government-funded studies show they are more likely to be arrested in the five years following the denial than in the five years before it.
But Walsh said he doubted Sessions' directive would result in a tidal wave of new cases. The memo asks federal prosecutors to work with local ATF leaders to review their guidelines for handling the cases and to submit a specially tailored plan for approval. It doesn't say what could happen to U.S. attorney's offices that don't comply.
"This is in the nature of window dressing," Walsh said.
The move puts additional pressure on the perennially resource-strapped agency at a time when it has already been asked to take on a growing role in the Trump administration's broader crackdown on violent crime. Trump, for example, ordered ATF to work toward banning rapid-fire bump stocks like those used in last year's Las Vegas massacre despite the agency's prior approval of the devices. Extra ATF agents were deployed last summer to cities like Chicago and Baltimore that saw spikes in shootings.
"It's kind of a tiered approach on how you have to manage resources," said Michael Bouchard, a retired assistant director who is now president of the ATF Association. "You're going to take people away from doing things that are going to have a significant impact on violent crime."
Lie-and-try prosecutions would not have prevented the shootings in Las Vegas or Florida because the gunmen bought their guns legally.
A man who slaughtered more than two dozen parishioners at a Texas church last year got his weapon only because information about his domestic violence conviction was never entered into the federal database. After that shooting Sessions launched a wide-ranging review of the system, which also sought information on the number of recent lie-and-try investigations. But the Justice Department on Tuesday would not release the data or other results of the review beyond an executive summary.