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 (NSSF) 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, 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 U.S. 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. 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 48 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 limits ATF to a single dealer inspection per year, regardless of that dealer’s track record. 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, less than 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, the agency made a presentation at the "SHOT" 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 Gun 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 U.S. 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 remain open while they challenge revocations in the courts (see sidebar).
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 the Nov. 2010 Justice IG 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 —a bipartisan quartet of House members proposed such legislation last week —but the prospects for passage are far from clear, given the politics.
And so ATF agents are left with those paperwork violations. And since those don’t draw heavy sentences, the IG reported, U.S. attorneys “are less likely to accept and prosecute” 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 U.S. attorneys in 2011, the U.S. 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, perhaps 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. And 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 U.S. 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 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, dramatic change at ATF seems highly unlikely. When Presidents Reagan and Clinton threatened 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 it's not clear that 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.