Factors that may influence uptake of private party background checks for firearm transfers: a mixed-method descriptive study

Abstract

Objective

To understand how the implementation and enforcement of universal background check (UBC) laws may influence the use of background checks during private party firearm transfers in the USA.

Methods

This is a mixed-method, descriptive study. Data included the content of relevant state statutes and sentencing information from the 19 states with UBC laws in 2019, prosecutions and convictions for private party firearm transfer violations from 5 states and New York City, firearm transfer education and promotion efforts, and key informant interviews.

Results

Information on conducting safe and legal private-party firearm transfers was widely available, but persuasive language encouraging background checks was rare. The median maximum prison time for violating UBC laws was 12 months and the median of the maximum fines was US$5000. However, the chances of being prosecuted in our sample states were extremely low. Finally, public support for UBC policies is high, but among some firearm owners, the perceived utility of such laws is very low.

Conclusions

Available data suggest that enforcement of UBC requirements for private party transfers is rare. Additionally, advocacy efforts to encourage private gun sellers to make sales contingent on buyers passing background checks are few. People may choose to avoid the additional burden of undergoing a background check when they feel neither social nor legal pressure to comply. The results of this research can be used to identify potential avenues for enhancing enforcement of and compliance with private party firearm background check laws.

WHAT IS ALREADY KNOWN ON THIS TOPIC

• Many private party firearm transfers are conducted without an accompanying background check on the prospective firearm transferee.

WHAT THIS STUDY ADDS

• Study results suggest low levels of compliance may be due to a lack of social pressure to conduct safe and legal transfers and low levels of enforcement. Information on how to transfer firearms safely and legally between private parties is widely available, but there are few efforts to encourage the use of background checks in private party transfers. Some sectors of the gun-owning population believe background check requirements to be ineffective crime prevention measures. Additionally, while the penalties for violating private party background check laws are severe, there is little chance of being caught and prosecuted.

HOW THIS STUDY MIGHT AFFECT RESEARCH, PRACTICE OR POLICY

• This study identifies multiple opportunities for attempting to increase the use of background checks in private party firearm transfers, including promoting safe, lawful social norms around private party firearm transfers through public campaigns and increasing enforcement of background check violations.

Introduction

In 2020 and 2021, firearm purchases, proxied by background checks, and firearm deaths increased to levels not seen for decades.^{1 2} Firearm deaths, from suicide and homicide, continue to rank in the top 10 leading causes of death in the USA.^{2 3} The sale or transfer of firearms is subject to some restrictions intended to prevent people at elevated risk for violence from obtaining firearms. One primary example is the federal requirement that all firearm transfers conducted by federally licensed firearm sellers involve a background check, during which several databases are checked for records (eg, criminal convictions) that would indicate the prospective buyer is prohibited from firearm ownership. An additional 21 states and the District of Columbia require that individuals wishing to receive a handgun through most private party transfers (PPTs) (eg, from friends or strangers who connect online) must first pass a background check.

Early research on background checks for firearm transfers estimated the effectiveness of background-check-generated denials in terms of crimes prevented among those whose purchases were denied.^{4 5} One study found that individuals denied an attempted firearm purchase because of a misdemeanour violence conviction were 22% less likely to be arrested for a subsequent violent offence when compared with individuals with a similar criminal history who were not denied.⁵ Yet many firearm transfers occur without a background check, missing this opportunity for prevention. According to the National Firearms Survey in 2019, in states with universal background check (UBC) laws, 22% of firearm owners who purchased a firearm from a private party in the prior 5 years did so without a background check.⁶ In a recent report, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) identified unlicensed dealers (ie, private parties that purchase firearms with the intent to sell them for a profit) as the most frequent source of trafficked firearms (40.7%), followed closely by straw purchases from licensed firearm dealers (ie, firearm purchases on behalf of a prohibited person or persons) (39.5%).⁷

Background check laws for private-party firearm transfers are implemented using a variety of mechanisms. Typically, the parties involved are required to conduct the transfer with a federal firearm licence (FFL) (eg, a gun store) and the FFL conducts the background check on behalf of the transferor. This is referred to as a point-of-sale check. In other states, transferees first obtain a firearm purchaser or owner licence from a law enforcement agency. Issuance of the purchaser licence is contingent on the applicant passing a background check. Many states also allow sales by someone with a valid concealed carry permit in lieu of a mandatory background check. Concealed carry permits are only issued after someone passes a background check.

Importantly, research on laws requiring a purchaser licence for virtually all transfers of handguns shows implementing (or repealing) these laws is associated with reductions (or increases) in firearm homicide rates at the state level.^{8 9} However, studies of states implementing or repealing background check laws with FFLs facilitating checks for private party sales have found no significant changes in firearm homicides or suicides.^{8 10–12} One hypothesis is that individuals involved in PPTs are more likely to check a purchaser licence than they are to seek out a point-of-sale background check, resulting in a more effective policy. Requiring a purchase application directly with law enforcement, often with fingerprint verification of the applicant’s identity, rather than through an FFL may also deter illegal straw purchases.

For UBC laws to be effective, people must follow the law; in this case by ensuring each firearm transfer is accompanied by a point-of-sale background check or the presentation of a valid licence. Control theory in criminology provides a guiding framework for understanding when and why people may break a UBC law.¹³ At its broadest, control theory suggests people act in their self-interest, and society can exert control by modifying individuals’ perceptions of their self-interest, for example, by increasing the negative consequences of criminal behaviour. Control theory defines two types of control mechanisms: internal controls, including an individual’s degree of adherence to shared values of right and wrong (ie, morality) and level of impulsiveness, and external controls, including surveillance and social norms.¹³ Control mechanisms can also be formal or informal, with formal controls consisting mostly of legal system actions and informal controls operating across multiple social institutions, such as family and schools. We map the concepts of control theory to the personal and social factors that may guide individual firearm transfer behaviours. Specifically, this study explores the roles of firearm transfer social norms, certainty and severity of penalties for violating private party background check requirements, and individuals’ beliefs about following UBC laws.

Methods

This is a mixed-methods, descriptive study of private party background check laws in the USA and their potential influence on firearm transfer behaviour. We reviewed media sources with the potential for informing the public about firearm transfer requirements, state statutes and sentencing information, and data on prosecutions and convictions for firearm transfer violations, and we conducted interviews with key informants to form a picture of why people might not follow state regulations for conducting a background check (at the point of sale or via purchaser licence) for private party firearm transfers.

Education efforts, campaigns and media

We searched for media that sought to inform the public about transfer requirements or explicitly encouraged specific transfer behaviours (eg, conducting a background check, avoiding straw purchases). This search involved reviewing government websites for the 19 states with active private party background check requirements in 2019 as well as keyword searches in Google with the aim of identifying state or national campaigns or media coverage on the passage or enforcement of background check laws. For each, we determined whether they (1) provided information about the passage of a UBC law or information on how to follow existing background check laws, (2) publicised enforcement actions surrounding private party background check law violations or (3) encouraged unlicensed gun sellers to make transfers contingent on background checks by appealing to a sense of duty or communicating the negative consequences associated with failing to follow the law.

Sentencing information

We reviewed the maximum sentences for first-time violations of state private party background check laws for handgun transfers. Sentencing policies were collected using WestLaw and Lexis Nexis. The relevant statutes were identified and retrieved from these databases by identifying statutory sections linked to each state’s background check law and by reviewing state criminal sentencing codes. These data are publicly available.¹⁴ Maximum prison time and fine amounts were explored using standard measures of central tendency (eg, means and medians).

Prosecution and conviction data

We used data on charges filed by docket and convictions in cases involving private party background check statutes to estimate the probability of conviction. Measures for Justice provided aggregated counts for the statutes of interest (online supplemental table 1) using charge-level data from state court systems.^15–20 Sample states and years were subject to data availability and included three states that require a background check at the point of sale (Colorado, Oregon, and Pennsylvania) and two states that require a licence to purchase (Connecticut and North Carolina) plus New York City. Colorado and Connecticut only make conviction data available while the others included data on all dockets filed. Data were available beginning in 2009 and ending in 2015, at the latest. Information on illegal possession of a firearm provided a means of benchmarking case or conviction counts.

Key informant interviews

We interviewed key informants to understand their perspectives on the strengths and weaknesses of the US background check system for private party firearm transfers, including challenges to enforcement and the effective operation of these policies. Interviewees were also asked about efforts to educate the public about the existence and specifics of private party background check requirements and efforts to encourage the use of background checks in private party firearm transfers. We invited individuals who worked in a leadership capacity with state or federal background check systems from each state to participate in interviews. We also invited representatives from the public education and media sources identified in our review. Key informant recruitment was done by email in 2020. A total of 10 interviews were completed in the fall of 2020 by phone. The conversations were recorded and transcribed.

Five of the key informants worked in state background check systems or law enforcement leadership, two worked for a national agency focused on justice data and information systems, one worked for an advocacy group with a focus on safe transfers and two worked for gun-related publications with wide gun-owning readerships.

The interviews were analysed using thematic analysis with the goals of assessing whether they were consistent with the quantitative data and gaining insight into why people may forgo background checks when engaging in private party firearm transfers. Codes were identified based on the research questions and initial findings from the quantitative data. Codes were then grouped across like interviews to identify themes.

Patients and the public were not involved in the design, conduct, reporting, or dissemination plans of our research.

Results and discussion

Certainty and severity of penalty

According to control theory, formal external controls exist primarily in the criminal legal system.¹³ The threat of legal sanctions is expected to alter people’s perceptions of self-interest ascribed to criminal behaviour. Research suggests compliance with laws is modestly responsive to the certainty of penalties for breaking the law, and that penalty severity is less influential.^21–23 Both factors are explored below.

We used court records from five states and New York City to explore penalty certainty, finding prosecutions for background check violations were exceedingly rare relative to estimates of how frequently such transgressions occur. For example, in the first complete year after implementing its UBC law, Colorado reported six convictions for background check violations. The three states and New York City with data on all cases filed (regardless of disposition) reported an average of 42.7 cases filed involving a background check violation per year, with Oregon filing the most in a single year (n=157). To bring this into perspective, estimates from the National Firearms Survey fielded in 2019 suggest 22% of firearms were transferred without a background check in states with private party background check requirements (at point of sale or via purchaser licence).⁶

We use illegal possessions from these same court data to estimate, very roughly, the number of firearms transferred without background checks in each study state and New York City. The number of illegal possession cases filed provides a conservative estimate of the number of crime gun cases in a state. Data going back 20 years (prior to US federal law prohibiting the release of firearm trace data except for specific criminal justice purposes) indicated that about 80%–85% of crime guns are recovered from someone other than the purchaser of record.²⁴ We use this figure (80% of illegal possession cases) as our starting point for proxying the number of illegal transfers conducted in a state. We then exclude guns sourced from other states, where firearm transfer laws may be different, using trace numbers from the Bureau of ATF.²⁵ Finally, to be conservative, we exclude those crime guns with a higher probability of having been stolen, rather than illegally transferred, by considering only guns with a time to crime of fewer than 3 years. The state-specific values vary and are shown in table 1. The number of illegal possession cases filed in Oregon (n=531) is exceptionally low, suggesting either missing data or very low rates of prosecution. We, therefore, did not use these data to estimate the number of illegal transfers in Oregon. The remaining estimates suggest a minuscule percentage of the total illegal transfers are prosecuted. Importantly, this suggests the probability of being penalised for failing to conduct a background check is very low, highlighting a weak mechanism of control.

Table 1. Estimates of total illegal transfers and percentage prosecuted by state.

State	Illegal possession cases*	Est. percentage of firearms obtained from illegal transfer (80%)†	Est. percentage firearms recovered in the same state as last sourced from‡	Est. percentage not transferred via theft‡	Est. number of illegal transfers	Total prosecutions for illegal transfers	Percentage of potential
New York City§	11 692	80%	15%	40%	561	3	0.5%
North Carolina	4691	80%	76%	56%	1597	12	0.7%
Oregon	531	--	--	--	--	157	--
Pennsylvania	4655	80%	77%	55%	1577	74	4.7%

^*From most recent year available.

^†Estimate from pre-Tiahrt Amendment data on the percentage of crime guns that are recovered from someone other than the purchaser of record.

^‡ATF estimates are from 2021.

^§New York data ATF estimates are for the entire state. Illegal possession and illegal transfer data are from New York City.

ATF, Alcohol, Tobacco, Firearms and Explosives.

Key informants also described the probability of being caught as low. An expert in justice-related data and information systems described private party background checks as operating “on the honour system”, adding, “I don’t think it would be necessarily lack of enforcement. It would just be lack of awareness that it [an illegal transfer] happened”. An interviewee in a leadership position of a state law enforcement agency described that law enforcement typically becomes aware of the illegal transfer when “a gun ends up in the hands of a criminal who’s prohibited”. They then “have to work back” to identify who it came from, and even then, “it’s pretty hard to make a case against the first purchaser, … if he sold it unlawfully, ultimately will say, ‘Oh, well, it was stolen and I forgot to report it’ or ‘It was in my car and I didn’t realize it was gone’ or ‘It was in my hunting cabin and I only go there once a year’”.

We also reviewed penalties recorded in state sentencing statutes for violating state private party background check laws relating to handguns specifically. All 19 states with private party background check requirements in 2019 imposed penalties on the seller when handguns were transferred without a background check. In five of these states, the penalty for selling a handgun without a background check was a felony. Prison time for violating these statutes ranged from 2 months to 10 years (median and mode=12 months); maximum fines ranged from US$500 to US$10 000 (median=US$5000). 15 of the 19 states also penalised the buyer when a handgun transfer was not accompanied by a background check; in 3 of these states, the penalty was a felony. Maximum prison time for the buyer ranged from none to 10 years (median=12 months). Fines ranged from US$1000 to US$10 000 (median=$1000).

While punishment severity is high in some states, the certainty of punishment, likely the more important factor for deterring violations of private party background check laws, is exceedingly low. Combined with the time, energy and cost that accompanies following private party background check laws, control theory would suggest many people choose to forgo background checks even when they are required due in part to weak formal controls.

A final rule implemented by the US Department of Justice as part of the Bipartisan Safer Communities Act and put in place shortly before this publication may address some of the enforcement challenges. This rule establishes clearer standards for the type of conduct that requires a seller to obtain a licence to sell guns (FFL). Sales at gun shows, advertisement of guns online or other signs of commercial activity require a seller’s licence, which mandates background checks and record-keeping for acquisition, disposition, sale and theft. FFLs must produce records for ATF compliance inspections and trafficking investigations. Such requirements ease the identification of violations and increase the tools available for law enforcement, which may strengthen this mechanism of control.^{26 27}

Norms and persuasion

Informal social controls include commonly held norms and values. This mechanism functions through attachment to social institutions, such as family or school; breaching common norms puts valuable social relationships at risk.

One way to assess the presence of norms and values regarding private party background check laws is through opinion polls. Public opinion surveys indicate that more than 80% of gun owners support UBC laws.²⁸ The National Survey of Gun Policy from 2019 estimated that 88% of people support UBC laws, the highest level of support recorded for any policy included in the survey. Among gun owners, support was also very high (85%), suggesting background checks are aligned with commonly held values.²⁹

However, election results paint a different picture. In a Maine referendum on private party point-of-sale background checks, only 48.2% (n=366 770) voted in favour of the new law. In a similar vote in Nevada, 50.5% (n=558 631) voted in favour of a UBC law with point-of-sale background checks.^{30 31} While voters in specific elections are not representative of the general population, these results suggest there is a sizeable population that does not support mandatory UBC policies.

For a social norm to function as a mechanism of control, people must believe there will be a social consequence to breaching the norm. The public messaging around firearm transfers and background checks provides insight into the strength of related norms for modifying behaviour. We found information on how to legally transfer a firearm to be widely available on state government websites and gun interest group publications for people seeking this information. When new background check laws are passed, news media sources often publish the details of the law and how it affects the readership. However, these sources tend to be purely informational in nature, without accompanying language to advocate for a specific behaviour.

Advocacy efforts that go beyond providing information to encouraging people to conduct a background check for every transfer are few. Gun violence prevention advocacy organisations that publish on background checks tend to place more emphasis on passing laws than on their implementation or enforcement, according to our reading of their websites. Gun-interest group publications tend to focus on other aspects of gun safety, for example, the four rules (eg, only point a gun at an object you intend to shoot), children and firearms, reviews on gun safes and trigger locks, and suicide prevention. The lead executive at a gun-interest publication explained, “if you look at our general output, a lot of it is like reviews of guns, top ten guns, because that’s what drives revenue”. According to this interviewee, writing on private party transfers (PPT) is particularly fruitless in terms of revenue, because “if it’s a PPT transfer, there’s no real way for us to make an affiliate sale”. In fact, publishing on firearm policies may result in fewer site visits overall given the divisive nature of the topic (“you can get blackballed by the entire industry”; “[readers are] so glad there’s finally a website without any politics involved”). The monetary incentives for avoiding this topic appear large.

The few efforts we found that pushed communications on background check requirements for private transfers out to a wider audience came from nonprofit advocacy organisations and high-level prosecutors (eg, District Attorneys). One campaign focused on conducting pre-firearm-sale background checks (“Sell with Certainty” from the National Crime Prevention Council) and two focused on discouraging straw purchases (“His Crime, Your Time” from Operation LIPSTICK and “Don’t Lie for the Other Guy” from the firearms industry’s National Sport Shooting Foundation). Additionally, we found some examples of a District Attorney’s office or an Attorney General’s office publicising high-profile arrests with the hope of sending “a clear message to any individual who thinks it’s acceptable to purchase deadly weapons for those who are prohibited from buying and possessing them.”³² As is highlighted in this quotation, straw purchases received more attention in this area than PPTs without background checks. Persuasive language around conducting background checks or asking to see a valid purchaser or carry licence was otherwise rare. While common opinion may hold UBC laws in high regard, the consequences to social relationships of breaching this norm appear weak.

Beliefs about the law

In the absence of strong external controls, control theory suggests internal controls, such as individual beliefs about following the law, take on greater importance.¹³ Interviews provide some insight into these beliefs, particularly in social settings where conducting UBCs is not a commonly held norm. An interviewee in a leadership role for a high-profile gun-interest magazine described the deeply held belief that background checks do not prevent crime.

There’s an understanding among law-abiding gun owners that background checks do not stop crime. So, I’m often flabbergasted by this idea of what sort of questions are people asking when they're saying 70 percent of Americans support background checks. Yeah, we don't want felons to have guns. We understand that. But the truth of the matter is that background checks are not preventing them from getting guns.

The interviewee went on to explain their logic,

The people who actively engage in participating in the background check program are not the people who are committing crimes. So, law-abiding gun owners, who dutifully go through their background checks are not the people who are out there committing crimes. Quite frankly, a background check simply is another barrier to entry to gun ownership. It adds extra cost. It adds extra time.

If background checks are viewed as ineffective, it may not seem “wrong” to violate a background check law. Yet, according to this key informant, this view of UBC laws as fruitless is balanced by a strict moral code that always requires abiding by the law. “Honest, responsible citizens do not want to break the law. They need to know what the law is so that they can use their right to self-defense effectively and properly, and not break the law.” This suggests that in the absence of external controls (eg, criminal sanctions, social norms), people engage in background checks purely out of a moral duty to align behaviour with the law. Yet elements of ‘self-interest’ continue to weigh in this equation (‘cost’ ‘time’). We cannot know the degree to which these beliefs are related to conducting or forgoing background checks when they are required.

Conclusions

We identified several factors that may explain low levels of compliance with UBC laws. First, while information on how to follow the legal requirements of private party firearm transfers was abundant, we found very few efforts to push communications about private-party transfer requirements out to the target audience. Additionally, very few efforts seek to promote safe, lawful social norms around private party firearm transfers. The field of firearm violence prevention could look to other areas of public health for examples of effective social norms campaigns to encourage behaviour change (eg, Mothers Against Drunk Driving,³³ antismoking,³⁴ wearing seat belts³⁵).

A sector of the gun-owning population considers background check laws to be ineffective and unnecessarily burdensome. Given that the gun-owning population is critical to the effectiveness of UBC policies, and that research suggests perceived legitimacy of a law influences the probability of following that law, understanding this perspective is imperative.³⁶ However, this negative view of UBC laws may be counterbalanced by a strong individual duty to follow the law, which is also shown to be associated with legal compliance.³⁷ Estimates of the proportion of the population adhering to these or other perspectives are not available but would be informative for understanding motivations for following (or not following) private party background check requirements.

Behaviour is also influenced by the certainty of punishment. Yet we found the probability of being prosecuted for failing to conduct a background check for a PPT was extremely low in both point-of-sale and purchaser licensing states for which we had data. In that context, punishment severity is immaterial as it is very unlikely to be applied. People may choose to avoid the additional burden of undergoing a background check when they feel neither social nor legal pressure to comply. However, with recent changes to the definition of ‘engaged in the business’ of selling firearms established by the Bipartisan Safer Communities Act, a significant portion of what were formerly private party firearm sales will now be required to be accompanied by background checks, and stronger regulatory procedures may make the enforcement of background check laws easier.

In the case of prosecution and conviction data, only five states and New York City were represented, affecting generalisability to the broader group of states with UBC laws. Similarly, we cannot generalise from our interviews to the population at large in terms of gun owner opinions or behaviours.

While efforts to increase the use of background checks in private-party transfers appear warranted, such efforts can only plausibly impact a proportion of firearm-related crimes. A prior study using national data on prison inmates found that, in states with low standards for legal firearm possession, 60% of those who used firearms in violent crimes were legal firearm possessors prior to committing their crimes. Thus, disregard of background check requirements is relevant to firearm acquisition for criminal use only for a subset of those who commit violent crimes with firearms.³⁸ Despite this ceiling, prevention via background checks continues to be an important avenue for potentially reducing the harmful effects of firearm violence.

Given evidence that private party firearm transfers are common and frequently do not include background checks, efforts to establish conducting a private party background check as a social expectation or increase the perception that legal consequences will follow transgressive behaviour may be fruitful areas for future practice and research.

Any data provided here does not constitute an official record of the New York State Unified Court System, which does not represent or warrant the accuracy thereof. The opinions, findings and conclusions expressed in this publication are those of the authors and not those of the New York State Unified Court System, which assumes no liability for its contents or use thereof.

Data availability statement

Data are available in a public, open access repository.