On the third weekend of every month is the Austin Highway Gun Show, where there are rows of tables with vendors with guns laid out for inspection and purchase. Would-be buyers slowly stroll through the venue, gazing at the pistols, rifles, semiautomatics and shotguns.
While some guns are not purchased from a dealer with a Federal Firearms License, many are — and for those sales, it’s required that the customer complete a 4473 form. And once someone fills it out, it goes into the National Instant Criminal Background Check System. When it's approved, the gun is sold.
But there's a catch.
“The system is only as good as the information and resources put into it,” said Josh Horwitz, executive director of the Coalition to Stop Gun Violence.
He says the Bureau of Alcohol, Tobacco, Firearms and Explosives has some serious weaknesses when it comes to spotting — and stopping — someone dangerous.
“If they say, 'No, in fact, someone was lying on the form,' it’s very difficult for ATF go out in the field enforce that because they don’t have the resources,” he said.
For anyone who wants to buy a gun from a licensed dealer, they have to answer 15 questions on the 4473, including:
- "Are you under indictment?"
- "Are you a felon?"
- "Were you dishonorably discharged?"
- "Have you ever been committed to a mental institution?"
Lying on the 4473 is a felony that could lead to 10 years in prison and a $250,000 fine. But according to a recent report from the Government Accountability Office, that's rarely enforced.
In 2017, there were over 8.6 million 4473 applications filed to purchase a gun, the report said. About 112,000 applications were rejected. The ATF investigated 12,710 of those cases, while just 12 were prosecuted. That means of all the investigations, only .09 percent were taken to court.
“If you're that sort of nefarious person, there’s really not a penalty,” said Gyl Switzer, executive director of Texas Gun Sense.
She said anyone who is legally prohibited from owning a firearm but who really wanted to buy a gun can weigh the odds and “lie and try.”
“Federal folks are not at all good at following up at the federal level of 'lie and try,' ” she said.
This has allowed some to buy guns they were not supposed to be able to buy. And among those who successfully got their hands on a gun was the Sutherland Springs mass shooter, Devin Patrick Kelley.
On Nov. 5, 2017, Kelly approached a group of Sunday worshipers and opened fire. He killed 26 people with a semi-automatic rifle he bought at an Academy Sporting Goods store in San Antonio, where he probably filled out a 4473 background form.
Two years before, Kelley had been court-martialed, imprisoned and dismissed from the Air Force with a bad conduct discharge for domestic violence. He had been confined to a mental health facility.
Any one of those events should have denied Kelley the gun he wanted, but he still got his gun.
The GAO report pointed out that the ATF doesn’t have enough people to adequately police the large number of 4473 false statements. And even with the resources, getting convictions in the area is tough, said Gretta Goodwin, a director in the GAO Homeland Security and Justice team.
“It’s extremely difficult to prove that someone knowingly and willingly made a false statement on the 4473,” she said.
She said if a prospective buyer is repeatedly rejected, that makes proving a violation a lot easier.
Because of the ATF’s manpower problem, 13 states have taken up the slack. They are investigating and prosecuting individuals who knowingly give false statements.
In 2017, Pennsylvania’s attorney general’s office logged 472 convictions compared to the 12 prosecutions from the feds.
“Texas was one of the bigger states for denials,” she said.
But, she added, Texas is not a state that investigates or prosecutes false statements on the 4473 form.
In a statement, the Texas attorney general’s office said this is a crime that is prosecuted at the federal level.
But State Rep. Gina Hinojosa, D-Austin, is working to change that.
Hinojosa filed a bill in the last legislative session and has filed a similar bill in the coming session that will give local district attorneys the authority to prosecute those who lie on the 4473.
“What this bill says is that it would be a state violation of law, a misdemeanor, to lie on a background check to try to get a gun — hence 'lie to try,' ” she said.
Hinojosa said gun rights advocates opposed her last bill, saying it was unnecessary because violations are handled at the federal level.
But based on the findings of the GAO’s report, a .09 percent prosecution rate does suggest closing the “lie and try” loophole needs some help in Texas, she said.
“This is about keeping guns out of the hands of people we have already established should not have guns,” Hinojosa said.