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How the NRA Hobbled the ATF

Rules pushed by the gun lobby and its allies in Congress have left the agency unable to enforce the law.

| Mon Feb. 11, 2013 7:02 AM EST
An ATF agent poses with weapons seized during gang raids in Pittsburgh last year.

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.

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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."

ATF's funding statute devotes 11 lines to describing the agency's budget and the remaining 76 lines to proscriptions on its powers.

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.

ATF inspectors have no way of knowing if a dealer's ledgers accurately represent all of the guns he has or if he is illegally selling guns off the books.

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."

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