The national conversation about gun violence in the United States is generally focused on the need to enact new laws or strengthen existing ones to help prevent the mass casualty shootings that occur stunningly often, as well as the daily occurrences of gun violence that plague communities around the country but never make the news. This focus on the gaps in U.S. gun laws makes sense: Glaring loopholes in the United States’ laws have made the country an outlier among high-income nations when it comes to lives taken by gunfire. But the debate about gun violence should not overlook another key role that the federal government has to play beyond enacting new laws: enforcing existing laws and regulating the gun industry. This crucial work makes up the core of the mission of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
ATF generally only makes headlines when the agency is involved in a scandal, such as the tragically flawed Fast and Furious operation or the more recent discovery of agents in the tobacco division engaged in financial fraud. Yet while ATF may not garner much attention, it is tasked with some of the most crucial functions when it comes to addressing gun violence in the United States. Unfortunately, the agency has been systematically neglected, leaving it struggling to fulfill its mission. As the Senate prepares to hold hearings on the new nominee to lead ATF, it’s worth taking a step back to understand the core mission responsibilities of this agency and some of the key challenges it faces.
ATF plays a crucial role in addressing gun violence in the United States yet faces serious challenges to performing this work effectively
ATF is a law enforcement agency charged with enforcing federal criminal laws related to guns. ATF special agents work with their counterparts at the FBI, the Drug Enforcement Administration, and local law enforcement agencies to identify, investigate, and refer for prosecution individuals who are violating federal gun laws by illegally possessing firearms, participating in violent gun crimes, or illegally trafficking firearms domestically or internationally. ATF also provides unique law enforcement resources to assist in criminal investigations, such as gun tracing to determine the origin of a gun used in a crime and sophisticated ballistics matching technology to link shooting scenes together and to a particular gun.
The bulk of ATF’s resources are dedicated to its law enforcement work. The special agents outnumber the industry operations investigators who conduct gun dealer inspections by 3-to-1, and roughly 80 percent of the agency’s budget is devoted to law enforcement operations. In 2018, ATF initiated more than 35,000 criminal investigations related to guns and referred more than 16,000 individual defendants to prosecutors for potential prosecution.
While many of the criminal investigations led by ATF involve relatively simple cases of illegal gun possession, the agency has also developed more sophisticated undercover operations that are intended to target gun trafficking networks. Unfortunately, many of these operations have been marred by controversy resulting from a combination of poor planning, execution, and management. In 2016, the U.S. Department of Justice Office of the Inspector General conducted a review of one type of undercover ATF operation known as a “storefront.” In a storefront operation, agents opened what appeared to be a legitimate business, while undercover agents posed as employees of that business looking to engage in illegal activity, such as illegal gun and drug sales. Following an investigation by the Milwaukee Journal Sentinel into reported concerns about how these investigations were run in a number of cities around the country, the Office of the Inspector General concluded that:
[W]hile undercover operations can be an important component of ATF’s efforts to fight violent crime, ATF failed to devote sufficient attention to how it was managing its undercover storefront operations. It lacked adequate policies and guidance for its agents, and in some cases supervision, necessary to appropriately address the risks associated with the use of this complex investigative technique.
In March 2018, a federal judge harshly criticized another type of ATF undercover operation that involved targeting individuals in the community believed to be engaging in violent criminal activity and offering them the opportunity to steal a large quantity of drugs from the stash house of a local drug dealer—a stash house that in reality did not exist. While ultimately declining to find that ATF intentionally engaged in racial profiling when selecting targets for these operations, the judge concluded, “These sting operations have used tremendous public resources to investigate and prosecute a large number of principally minority individuals for fictitious crimes.” The judge found that these operations “have served to undermine legitimate law enforcement efforts in this country.”
As discussed in depth in a 2015 Center for American Progress report on ATF, the agency confronts a number of historical challenges in its efforts to successfully develop and implement complex law enforcement operations, including insufficient management, lack of coordination with other agencies, and insufficient resources. While the agency’s leadership has made concerted efforts in recent years to address some of these problems, the new ATF director will certainly be faced with many of these ongoing challenges.
In addition to being a law enforcement agency, ATF is a regulatory agency responsible for providing oversight of the gun industry, which includes firearm manufacturers, importers, and dealers. This is perhaps ATF’s most crucial role, as it is the only federal agency with this jurisdiction. In this role, ATF issues licenses to new businesses and conducts inspections to ensure compliance with all applicable laws and regulations and identify potential illegal gun trafficking activity.
Despite the importance of these functions, this aspect of ATF’s work has been historically neglected. As of May 2018, ATF employed only 641 regulatory investigators who conduct compliance inspections of licensed gun dealers. While ATF is authorized by law to conduct one compliance inspection every year of every licensed gun dealer and has set an internal goal of inspecting all gun dealers once every two years, current resources and staffing leave it far short of either goal. In fiscal year 2018, ATF was able to conduct only 10,323 compliance inspections out of a total of more than 56,000 retail gun dealers in the United States. These inspections are crucially important: In FY 2018, only 42 percent of the investigations found no violations, and the violations that were discovered ranged from failure to properly complete the paperwork necessary for crime gun tracing to failure to conduct a background check. And even when ATF is able to inspect a gun dealer and finds serious violations, the agency rarely takes steps to revoke the dealer’s license and shut down the business. A review of internal ATF documents by The New York Times in June 2018 found a pattern of senior ATF officials overruling the recommendations of investigators that licenses of repeat offenders be revoked, choosing instead to issue warnings and allow the businesses to stay open.
ATF has also been compromised by legislative action that severely restricts its ability to function. Beginning in 1979, Congress began to undermine ATF’s ability to effectively meet its core mission responsibilities of enforcing federal gun laws and regulating the gun industry through a series of restrictive policy riders attached to the agency’s annual budget. These riders—which number more than a dozen—limit nearly every aspect of ATF’s work, from how it manages data, to its use of crime gun trace data, to the methods it can use to help keep gun dealers accountable for missing guns.
Arguably the most damaging riders are those that prohibit ATF from consolidating records of gun sales, digitizing those records, and archiving them in an easily searchable database. These restrictions have a detrimental impact on ATF’s ability to help identify the owner of a gun used in a violent crime, a process called gun tracing. Because ATF cannot keep its own centralized database of gun sale records, gun dealers are responsible for keeping those records on-site. When a gun is used in a crime, ATF agents must start by contacting the manufacturer or importer of the firearm to find out which retail dealer first had it as part of its inventory, then asking that dealer to search its own records to determine the identity of the first retail purchaser of the gun. At this point, agents can attempt to contact that purchaser and begin to investigate whether they were involved in the crime.
The process gets even more complicated when the gun was first sold by a dealer that has since gone out of business. ATF takes possession of all gun sale records when a gun dealer goes out of business, and because of this rider, rather than being scanned and imported into a database, those records are kept in boxes stored in shipping containers at a facility in West Virginia or on microfilm. For these traces, ATF agents must spend an average of four to six days going through these physical records or using an antiquated electronic system, which does not have a search function, to find the original sales record.
Former ATF Deputy Director Thomas Brandon, who recently retired after leading the agency in an acting capacity since 2015, warned Congress in March that the situation at ATF was about to get even worse if the Trump administration’s FY 2020 proposed budget was enacted. In an appearance before the House Appropriations Committee, Brandon said that the proposed budget would result in the loss of nearly 400 special agents through attrition and reflected on the current status of the agency: “You hear people say, ‘trim the fat.’ Then we trimmed into muscle and now we’re trimming into bone.”
At best, the current state of ATF is the result of benign neglect by Congress. At worst, it is the product of willful sabotage by the gun lobby and the members of Congress under its sway.
The recent announcement that the administration finally plans to nominate someone to fill the top role at ATF provides an opportunity to take a step back to fully understand the importance of this agency and the need to carefully vet the nominee to lead it. Everyone who is concerned about gun violence in this country and advocates to strengthen gun laws also must focus attention on the critical role that ATF plays in working to keep U.S. communities safe and the gun industry accountable—as well as the inherent risks involved in continuing to neglect the agency.
Chelsea Parsons is the vice president of Gun Violence Prevention at the Center for American Progress.