A longer version of this article was originally published by the Center for Public Integrity.
Just a month after the massacre at Sandy Hook Elementary School in Newtown, Connecticut, President Obama signed nearly two dozen executive actions and proposed a package of legislative initiatives that together represent the most comprehensive effort in decades to reduce what he called “the broader epidemic of gun violence in this country.”
Conspicuously absent from the president’s agenda, however, is much of anything that might address the stunning and widespread weaknesses that have for years crippled the federal agency responsible for enforcing the nation’s gun laws—the Bureau of Alcohol, Tobacco, Firearms and Explosives. Yes, the president announced his nomination of a full-time director for the long-leaderless agency, and some of the new proposals do tacitly acknowledge a number of ATF’s long-standing challenges. But the initiatives are modest, and Congress may not go along with any of them. So for now, the bureau remains systematically hobbled by purposeful restrictions, flimsy laws, impotent leadership and paltry budgets. And it’s not at all clear there’s anything on the horizon that would change that situation.
“If you want an agency to be small and ineffective at what it does, the ATF is really the model,” says Robert J. Spitzer, author of The Politics of Gun Control. Spitzer, a political science professor at the State University of New York College at Cortland, says the ATF’s critics, in particular the National Rifle Association (NRA), have been “extremely successful at demonizing, belittling and hemming in the ATF as a government regulatory agency.” The result, he says, is an agency with insufficient staff and resources, whose agents are “hamstrung” by laws and rules that make it difficult or impossible to fulfill their mission.
ATF declined to make any senior officials available for an interview. But agent George Semonick, a spokesman for the agency noted that ATF “does not make the laws and regulations…ATF will hold to what the laws and regulations allow us to do.”
A lack of resources—by design
The ATF employs about 5,000 men and women, approximately the same number of staff it had a decade ago; about half are special agents assigned to conduct criminal investigations. That’s a force about the size of the Harris County, Texas, Sheriff’s Department. In a letter to Vice President Joe Biden’s gun violence commission, 108 academic researchers complained that the ATF’s funding was “stagnating” while the budgets of law enforcement agencies such as the FBI had seen “dramatic expansions.” Since 1972, the Drug Enforcement Administration’s staff has more than doubled, while the FBI’s is up by two-thirds. The ATF’s current budget of $1.15 billion is little changed from the $900 million it received 10 years ago.
Former ATF Director Stephen E. Higgins and others intimately familiar with the agency’s history say the root of the problem is that ATF has no political constituency, no one invested in seeing it succeed and willing to stand up against those determined to see it fail. The success of ATF’s critics in reining in its authority is nowhere more evident than in the bureau’s appropriation statute, which is two pages long, devotes 11 lines to describing the agency’s budget and the remaining 76 lines to proscriptions on its powers. Many of these “riders,” as they’re known, go to the agency’s most basic investigative functions. Two of the riders effectively ban consolidation and computerization of records. One limits access and use of crime gun trace data, while another undermines the credibility of whatever trace data are released. One rider overturns ATF efforts to ban the import of large-capacity shotguns, which the agency found had no “sporting purposes.” Another overturned an ATF regulation to limit the import of dangerous weapons under a law originally designed to protect collectors of “curios and relics.”
Perhaps the most iconic of these riders is one that literally bars the oft-suggested transfer of ATF functions to any other agency such as the FBI or Secret Service, which have stronger reputations and more public support. “These riders are designed to keep the functions of ATF within that agency so they can be targeted for criticism,” says Adam Winkler, author of Gun Fight: The Battle Over the Right to Bear Arms in America. “It’s helpful to have a clear villain.”
No databases and no registration
Of course the NRA has a starkly different view of what the ATF and gun control advocates view as unreasonable restraints. Chris Cox, the executive director of the NRA’s lobbying arm, the Institute for Legislative Action (ILA), did not respond to an interview request. But last February, in the NRA magazine First Freedom, Cox wrote, the “NRA-ILA puts a great deal of effort into protecting gun owners by urging the Congress to pass ‘riders’… that help accomplish our agenda.” An NRA press release from November 2011 heralded the riders in the ATF appropriation as “Twelve Big Wins for Gun Owners.”
According to Cox, the most important of the ATF riders “is a prohibition on creating or maintaining a database of gun owners or guns,” which the NRA and other gun-rights advocates say could be used by a tyrannical government to confiscate firearms. The rider, which dates back to 1978, was a response to President Carter’s attempt to create a national registry of handguns. A related rider, dating to 1997, bars the government from creating an electronic database of the names of gun purchasers contained in 597 million gun sale records from 700,000 out-of-business dealers. (Those dealers are required by law to turn their records over to the ATF.) In addition, a 1986 law, the Firearm Owners’ Protection Act, explicitly forbids the government from creating a database of gun owners.
Higgins was stoic about the long-standing ban on databases. “Everyone in the agency understood that things that made sense in the modern era—such as automation—just weren’t going to happen.” But Higgins also said that working through mountains of paper and microfiche records is a huge waste of agents’ time and taxpayer money. As a practical matter, the lack of a computerized records system for gun sales means that a crime gun trace that might otherwise be accomplished in a matter of seconds can take up to two weeks.
Today, gun sale records are kept at 60,000 separate locations by the nation’s 60,000 federal firearms licensees (FFLs). With a centralized database, an ATF agent in possession of a gun found at a crime scene could simply plug the gun’s serial number into a computer and identify the name of the dealer who sold the weapon, along with the name of the first purchaser. Without a database, agents must often embark on a Rube Goldberg-style odyssey, contacting the gun’s manufacturer or a gun’s importer who will direct the agent either to a middleman who sold the weapon to a dealer or to the dealer himself, who can identify the first buyer. Dealers are required to keep records of each firearm transaction. Frequently, however, the records are on paper, and dealers can’t locate particular ones quickly. At the same time, there is no law requiring consolidation of wholesale weapon transfers—those sales by the manufacturer or middleman—which means ATF inspectors have no way of knowing whether a dealer’s ledgers accurately represent all of the guns he has bought or if he is illegally selling guns off the books.
One gun database that works
Joseph Vince, a former ATF special agent and now a partner at Crime Gun Solutions, a consulting firm, says solving gun crimes is all about gathering information and having the tools to make sense out of it. He says US gun laws often make that work far more difficult. “People talk about 9/11 and not connecting the dots; but when we talk about gun laws, we’re taking the dots off the paper.” Vince says concerns that a centralized database of guns and gun owners will lead to gun confiscation have been disproved by 80 years of history with the National Firearms Act, a 1934 law that requires citizens who own machine guns, short-barrel shotguns and certain other highly dangerous weapons to register them with the federal government. Owners of NFA firearms, as they are known, are fingerprinted, photographed and subjected to an FBI background check, and the serial numbers of their guns are kept in a federal database, whose contents, Vince says, have never been divulged outside of a legitimate law enforcement inquiry. Most important, these weapons are rarely used to commit crimes. The NFA has effectively removed these guns from the criminal marketplace.
Vince notes that NFA weapon owners are also required to obtain a signature from a local law enforcement authority, because these officials are more likely to know whether a prospective machine-gun owner is a responsible citizen. “If you’ve got anger issues, if you’re getting involved in weekly brawls at bars or beating your wife, you shouldn’t have a firearm,” says Vince. “It’s just common sense.” Vince and some gun control advocates argue that assault weapons and other modern, high-powered guns should be brought under the registration requirements of the NFA. The assault weapons ban recently proposed by Sen. Dianne Feinstein (D-Calif.) includes no registration language.
Background checks miss many buyers
The centerpiece of the president’s just-released gun agenda is a proposal to require “universal background checks for anyone trying to buy a gun.” Under the 1993 Brady Handgun Violence Prevention Act, licensed dealers are required to run a background check either through a state background check system or through the FBI’s National Instant Criminal Background Check System (NICS) before selling a firearm. Between 1998 and 2012 the FBI conducted more than 160 million background checks and turned away nearly a million prohibited buyers, including convicted felons, domestic abusers, illegal aliens, drug abusers and so-called mental defectives.
The problem with the current law is that it covers only guns sold by FFLs; there are currently no background checks for sales by “private sellers,” that is, individuals and unlicensed dealers, many of whom sell at gun shows, flea markets, or on the Internet. President Obama and gun control groups have suggested that as many as 40 percent of all gun purchases are made through unlicensed sellers, and New York City Police Commissioner Raymond Kelly estimated about 6 million such sales last year.
Selling guns without a license was made a lot easier when Congress passed the 1986 Firearms Owners’ Protection Act (FOPA), which narrowed the definition of “those who engage in the business of” selling firearms and were required to buy a license. “You could tell if someone was engaged in the business of selling firearms by looking at a simple sequence of sales,” says William J. Vizzard, a former ATF agent and now a professor of criminal justice at California State University, Sacramento. But the new law exempted “collectors,” people engaged in “occasional sales” and those selling guns from a “personal collection” regardless of its size, all of which greatly expanded the universe of unlicensed sellers. After FOPA, Vizzard says, “we’d arrest a guy with hundreds of guns, all with price tags on them, and he’d say they were part of his collection, and the tags were to let his family know what they were worth in case he died.” Vizzard says the law should define a dealer based on the number of guns he sells.
Richard Feldman, a former NRA lobbyist and president of a gun-rights group called the Independent Firearm Owners Association, insists that the gun show loophole could be closed at little cost by requiring show operators—rather than individual dealers—to conduct NICS checks on all gun sales. Alternatively, unlicensed dealers might be required to run their checks through licensed dealers, for a small fee. That would eliminate the incentive criminals have to buy from unlicensed gun show dealers.
The current system of background checks is also hampered by ongoing problems with data collection. Missing from the NICS system are millions of state and federal records that would disqualify prospective buyers—including mental health and drug abuse records, and case histories of accused felons. A report by the Government Accountability Office found that 17 states have provided fewer than 10 mental health records to the database between 2004 and 2011. As a result, thousands of prohibited buyers slip through the cracks every year. In 2010, about 3,000 such cases were identified. The president’s gun violence plan calls for additional funding to help states compile mental health and other records and get them into the system.
No cross-checks: The 24-hour rule
The absence of background checks for potentially millions of gun sales each year means that an ATF agent trying to trace a gun picked up at the scene of a homicide may find no paper trail. If he’s lucky, a dealer will identify the first buyer. But 85 percent of traced crime guns had changed hands at least once before being recovered by law enforcement, and none of those secondary buyers were run through the NICS system.
The investigative challenges are further complicated by a series of riders authored by then-Rep. Todd Tiahrt, (R-Kan.), in 2003 in collaboration with the NRA. One of the Tiahrt amendments, as they’re known, requires the FBI to destroy information contained in Brady or NICS checks within 24 hours. When a felon purchases a gun, he commits a new felony. But the FBI now has only 24 hours to figure that out. In effect, the FBI is required to destroy evidence of a crime. “Obviously, bringing the record retention down to 24 hours would preclude any significant investigation,” says Julius Wachtel, a retired ATF agent with 20 years of service. “One might as well not even bother.”
According to the NRA, the rider “protects the privacy of law-abiding gun buyers.”
ATF handgun traces demonstrate that 20 percent of handguns collected from crime scenes were initially part of large-scale purchases of multiple firearms. That’s why the Brady law included a provision requiring that dealers who sell more than one handgun to any single individual within a five-day period file a special report with the ATF and the local police. ATF agents say these multiple sales reports are one of the most valuable tools for identifying gun traffickers. But traffickers can easily evade this reporting requirement and assemble their arsenals without being detected by purchasing a single handgun from multiple dealers over a period of several days, weeks or months. A straw buyer can pass 100 Brady checks. And because the NICS database cannot retain that information for more than 24 hours, it’s impossible to detect that he or she has made multiple purchases.
Although the Brady law did not require multiple sales reports for long guns, including the military-style assault rifles favored by Mexican drug cartels, President Obama has tried to crack down on traffickers in those weapons. In 2011 the Justice Department issued a rule requiring gun dealers in four Southwest border states to file multiple sale reports for rifles of larger than .22-caliber. The NRA and the Newtown, Connecticut-based National Shooting Sports Foundation immediately went to court to stop its enforcement. Cox, the NRA lobbyist, said the rule “will only divert scarce law enforcement resources from legitimate criminal investigations and squander them on policing law-abiding retailers.” But Peter Forcelli, an ATF supervisory special agent turned whisleblower, called the long-gun rule a “huge tool” that “gives us a head start to investigate potentially unlawful sales.” During the first eight months of the program, ATF initiated 120 investigations based on multiple long-gun sale reports and recommended prosecution of more than 100 defendants in 25 separate cases. Two federal district courts turned down the NRA/NSSF challenge, which is now before the US Court of Appeals in Washington, D.C.
No dealer inventories
Yet another Tiahrt amendment bars the ATF from forcing gun dealers to conduct annual inventories of their firearms, which the NRA’s Cox describes as a “laborious and time-consuming process” and “generally unnecessary.” In fact, unlike automobile dealers who have a pretty good idea when a car is missing from the lot, gun dealers seem to lose track of firearms all the time. In 2010, ATF inspections of less than 10 percent of firearms licensees identified more than 31,000 missing weapons. Unlike gun dealers, explosives dealers, also regulated by ATF, are required to keep annual inventories.
Yet lost and stolen firearms account for a huge percentage of the guns that turn up at crime scenes. Between 2005 and 2010, the Justice Department reported 1.4 million guns stolen. More than 80 percent were never recovered as of 2010. Although licensed dealers are required to report stolen weapons, there is no similar requirement for individuals, although numerous cities and towns—30 in Pennsylvania alone—have enacted laws that require such reporting within 24 to 72 hours. The International Association of Chiefs of Police supports these laws, arguing that quick reporting of stolen guns makes it far easier to track down thieves, traffickers and straw purchasers. The NRA opposes lost and stolen reporting laws. An NRA challenge to a Pittsburgh law was turned down in 2010.
For ATF investigators, a large number of lost or stolen firearms from a particular dealer can be a red flag that the dealer may be selling to criminals. An ATF study in 2000 found that more than 57 percent of crime gun traces in 1998 came from just 1.2 percent of gun dealers. The Washington, D.C.-area snipers, who murdered 10 people in the course of a three-week shooting spree in 2002, obtained their assault rifle from a Tacoma, Washington, dealer with a long history of “missing” firearms.
Limits on dealer inspections and penalties
Corrupt dealers will often claim that a firearm that turned up at a crime scene was lost or stolen. Absent annual inventories, ATF must rely on on-site inspections to ascertain whether a dealer has accounted for every firearm he has bought or sold. That was made more difficult by the 1986 Firearm Owners’ Protection Act, which essentially limits ATF to a single inspection per year for a dealer. ATF officially claims to have 776 “inspectors” to examine 60,000 FFLs. But as spokeswoman Ginger Colbrun explained, only about 600 officers actually conduct inspections while the remainder are administrators. In addition, those 600 officers are responsible not only for inspecting active gun dealers but explosives dealers and prospective dealers. In 2011, only about half of the inspections conducted by those 600 officers were of active retail and wholesale gun sellers. “We do the best job that we can and visit as many dealers as possible,” Colbrun said, “but with the resources we have we’re not going to get to every dealer every year.”
In January 2012, the agency made a presentation at the SHOT Show firearms exhibition in Las Vegas which singled out dealer inspections as a major priority and “risk assessment tool,” and specifically noted that some FFLs are not inspected “for more than 5 years.” An ATF official said they are currently trying to visit each dealer at least once every five years.
The NRA has complained for years that dealer inspections are a nuisance and has accused ATF of harassing honest gun dealers and revoking licenses “for insignificant technical violations.” But Andrew Molchan, the director of the 4,000 dealer National Association of Federally Licensed Firearm Dealers, maintains that dealer relations with ATF have been “better in recent years.” “We don’t have the kind of ridiculous problems there used to be a lot of,” he says. That doesn’t mean dealers are happy when ATF agents pay a visit. Last year, Indiana gun dealer Charles Ludington received a four-year prison sentence after pleading guilty to selling guns to a convicted felon. Ludington came under suspicion during a routine ATF audit in which he was unable to account for 997 firearms. Investigators also found 93 guns that had not been logged in as inventory, another signature of illegal sales.
Even with inspections, closing down corrupt dealers for record violations is extremely difficult. That’s due in part to another Firearm Owners’ Protection Act provision which reduced the penalties for record keeping violations. “Even when you find blatant violations of records laws, you can no longer charge a felony,” says former ATF agent Vizzard. “And most US attorneys are much too busy to be charging misdemeanors.” In 2010, the ATF inspected more than 10,500 dealers and found reporting violations had been committed by half of them. Yet only 71 dealers had their licenses revoked or were denied a renewal. Revocations can take years because of due process requirements, and dealers can sometimes remain open while they challenge revocations in the courts.
Restrictions on use of gun trace data
The Tiahrt amendments also barred the use of ATF trace data in administrative proceedings such as those to revoke a dealer’s license. John Feinblatt, chief policy adviser to New York City Mayor Michael Bloomberg, said trace data is extremely useful in establishing “whether a dealer has broken the law,” and that barring its use in revocation hearings is “like having a law that says you can’t introduce DNA evidence in a rape case.” Under Tiahrt most trace data is also off limits to journalists and scholars. “You’re trying to detect a pattern,” says former ATF agent Vince. “And the idea is, let’s keep the truth and the facts from really coming out so the public can’t see what’s really going on.” In a recent report, Mayors Against Illegal Guns charged the gun lobby with “blindfolding law enforcement” by limiting access to trace data.
Several Tiahrt restrictions have been removed from the law in recent years. These include a provision that prevented state and local police from analyzing gun trafficking patterns and another that prevented law enforcement agencies from sharing ATF trace data. During his 16 years in the House, Tiahrt received $77,350 from the NRA, according to the Center for Responsive Politics. He chose to run for Senate in 2010, but was defeated in a primary.
Statutes and punishments
Legal experts and former ATF officials have long argued that the legal tools available to the agency are weak—for instance, there is no comprehensive federal firearms trafficking statute. As a result, “ATF must use a wide variety of other statutes to combat firearms trafficking,” said a Nov. 2010 Department of Justice Inspector General report. “However, cases brought under these statutes are difficult to prove and do not carry stringent penalties—particularly for straw purchasers of guns.”
The president’s plan to reduce gun violence recognizes that “there is no explicit law against straw purchasing, so straw purchasers and others who traffic guns can often only be prosecuted for paperwork violations.” The president has called on Congress to pass new gun trafficking laws with serious penalties—and a bipartisan group of four House members introduced such legislation recently—but the prospects for passage are far from clear, given the politics.
For now, ATF agents are left with those paperwork violations. And since they are difficult to prosecute and don’t draw heavy sentences, the IG reported, US attorneys are less likely to go after these cases. A Justice Department review of straw buyer sentences between 2004 and 2009 found that they averaged only 12 months. Following complaints from several US attorneys in 2011, the US Sentencing Commission approved guidelines that allow judges to increase sentences for straw purchases by up to five years.
US attorneys also told the IG there were insufficient investigative and prosecutorial resources for gun trafficking cases, while ATF agents reported that they didn’t refer cases “that they assume would be rejected” by prosecutors.
A White House statement on the president’s gun violence proposals says there “is no excuse for leaving the key agency enforcing gun laws in America without a leader.” Despite the burgeoning controversy over his nomination as the permanent director of the ATF, perhaps B. Todd Jones, a former Marine, will get the chance to convince the Senate that he is the right man for the job. But even with a full-time director, it is not at all clear that the ATF is up to the task of enforcing America’s gun laws—or that the agency has the tools to do so.
The NRA view is that more than enough laws are already on the books. In his post-Newtown speech, Executive VP LaPierre insisted that fully 20,000 gun laws “have failed” to protect us. In a different speech, he claimed that “government has failed in enforcing…our laws against violent criminals with guns.”
Even with all its limitations, the ATF is not exactly a paper tiger. ATF investigations helped win more than 68,000 convictions between 2005 and 2010, sending more than 55,000 criminals to prison for an average of 15 years each.
Still, retired ATF agent Wachtel says federal gun laws are “toothless” and that “corrupt licensees and traffickers have little fear of discovery or meaningful punishment.” Wachtel calls US gun laws “an illusion” designed to reassure the public that “we can really keep guns from falling into the wrong hands if we just check people’s records,” while at the same time “telling the industry we’re going to help you sell as many guns as you possibly can.”
In a report issued shortly before the president announced his gun plan, the Center for American Progress, a liberal advocacy group, called the ATF a “beleaguered agency that is unable to adequately fulfill its mission” and said it is “simply incapable of functioning properly as a standalone agency in its current state.” The Center called on the White House to make the ATF a unit of the FBI. “What we want,” said Winnie Stachelberg, executive vice president for external affairs at the Center for American Progress and a co-author of the report, “is to see ATF moved…to an agency that can work in the way it needs to, to reduce gun violence.”
But despite the post-Newtown atmosphere, the prospects for dramatic change at ATF seem modest. When Presidents Reagan and Clinton attempted to send ATF’s functions to the FBI and Secret Service, both ATF defenders and the NRA moved decisively to prevent that from happening. President Obama has so far opted not to re-fight that battle. And there are major doubts whether Congress is seriously interested in giving ATF the resources and power it needs to identify and arrest gun criminals. Absent major new developments, that leaves ATF in the same handicapped state it’s been in for years. And that seems to be just the way a lot of people like it.
The Center for Public Integrity is a nonprofit, independent investigative news outlet. For more of its stories on this topic go to publicintegrity.org.