ATF Firearm Trace Data and Multiple Handgun Sales Reports

To enforce federal firearms laws, ATF conducts firearm traces for federal, state,
tribal, county, and municipal law enforcement agencies. Gun dealers must also report
multiple handgun sales to ATF. Firearm trace data and multiple handgun sales reports,
along with other investigative data, can be strong indicators of illegal firearms trafficking.
For several reasons, however, there are methodological and operational limits on the use
of such data and reports, in addition to the statutory limitations, as discussed below.

Firearm Trace Process. As part of a trace, law enforcement officers submit to
ATF certain information about a firearm in question, including the manufacturer, model,
caliber, and serial number. In turn, ATF firearm specialists systematically research the
firearm's transfer documents, which Federal Firearms Licensees (FFLs) are required to
maintain, as a firearm passes through the commercial chain of distribution, from
manufacturer/importer, to wholesaler/distributor, and to first retail seller. From the first
retail dealer's transfer records (bound log book and ATF Form 4473s), ATF can
determine the first private person to whom the firearm was transferred. When dealers go
out of business, these records are sent to, and maintained by, ATF.4 By following up with
the private person to whom the firearm was last transferred, investigators are often able
to generate new leads to solve firearms-related crimes.

YCGII and Comprehensive Tracing. As gun violence increased from the mid-
1980s to the early 1990s, law enforcement agencies increasingly availed themselves of
ATF's firearm tracing capabilities. As the firearm trace database grew, it yielded new
insights for law enforcement agencies. In 1994, ATF made "comprehensive tracing,"
which entails tracing all "crime guns" recovered by law enforcement in a particular
geographic area, an agency objective. In 1996, the Clinton Administration launched the
Youth Crime Gun Interdiction Initiative (YCGII). Under this initiative, participating
cities were provided funding to comprehensively trace crime guns and improve
information about the illegal sources of firearms. In FY1996, 27 cities participated in this
program. By FY2004, it had been expanded to more than 60 cities. For FY2005, the
Bush Administration requested and received funding to expand Project Safe
Neighborhoods (PSN) and YCGII to 80 cities, yet ATF dropped the YCGII program in
FY2005 and began promoting the PSN program as part of its wider integrated violence
reduction strategy.

For the years 1997 through 2000, ATF published YCGII reports that included data
on firearm traces by participating city.5 Although the data in those reports were
anonymized and did not identify individual FFLs, ATF has issued no additional YCGII
reports. ATF had also made trace data available to researchers under contract with
disclosure restrictions, but such data were only released after five years, because ATF did
not want to compromise ongoing investigations, among other things. After reviewing the
trace data, some researchers suggested that through comprehensive crime gun tracing new
findings could be made regarding illegal gun trafficking -- especially at the regional
level,6 while others noted methodological shortcomings in the firearms trace data that
arguably have precluded making conclusions about crime guns at a national level.7

Methodological Limits on Firearms Trace Data. ATF has defined "crime
gun" to mean any firearm that is illegally possessed, used in crime, or suspected to have
been used in crime. An abandoned firearm may also be categorized as a crime gun if it
is suspected it was used in a crime or illegally possessed.8 Under this definition, most,
but not all, traced firearms are "crime guns." Firearms trace data, however, are limited
and may be biased by several factors:

- traced firearms are generally recovered by law enforcement, and they
may not be representative of firearms possessed and used by criminals;
- there remains significant variation over time and from jurisdiction to
jurisdiction as to "when, why, and how" a firearm is recovered and
selected to be traced; and
- a substantial percentage of recovered firearms cannot be successfully
traced for several reasons including poor recordkeeping by FFLs.

According to ATF, the firearms trace database is an operational system designed to
aid in ongoing investigations, rather than a system to capture "crime gun" statistics.9
Nevertheless, combined with multiple handgun sales reports and other investigative data,
firearm trace data have proven to be a viable tool for ATF in targeting regulatory and
investigative resources with greater effect.

Multiple Handgun Sales Reports. Federal law requires FFLs to report to the
Attorney General (AG) whenever they transfer more than one handgun (pistol or revolver)
to any nonlicensee within five consecutive business days.10 The FFL must also forward
this information to either the state police or local law enforcement agency that has
jurisdiction in the area where the transfer occurred.11 Furthermore, except for information
pertaining to persons prohibited from possessing firearms, federal law prohibits state or
local law enforcement agencies from disclosing those records to any person or entity, and
requires those records be destroyed within 20 days of receipt, so that those records cannot
be used as a registry of firearms or firearms owners.12 At the end of every six-month
period, the state or local law enforcement agency is required to certify to the AG that the
record nondisclosure and destruction requirements were complied with.

Operational Limits on Illegal Firearms Trafficking Indicators. ATF
analyzes firearm trace data, multiple handgun sales reports, and firearms-trafficking
investigative data to more effectively target armed violent criminals and gun traffickers
for prosecution. By aggregating these data, ATF analysts are often able to discern
regional illegal firearms trafficking trends and patterns. Working with contract researchers
at Northeastern University, ATF developed indicators of illegal firearms trafficking:13

- multiple crime guns traced to an FFL or first retail purchaser;
- short time-to-crime for crime guns traced to an FFL or first retail
purchaser;
- incomplete trace results, due to an unresponsive FFL or other causes;
- significant or frequently reported firearms losses or thefts by an FFL;
- frequent multiple sales of handguns by an FFL or multiple purchases of
firearms by a non-licensee, combined with crime gun traces; and
- recovery of firearms with obliterated serial numbers.

In February 2000, ATF reported that (1) out of 83,200 FFLs, about 1,020 had 10 or more
firearms that were traced back to them in 1998; (2) while those FFLs only represented
about 1.2% of licensed retail dealers, they accounted for more than 50% of traces to retail
dealers in that year; and (3) less than 1% of retail dealers, about 330 FFLs, had 25 or more
firearms traced back to them.14 By concentrating their enforcement and regulatory actions
on this small percentage of FFLs, ATF sought to prevent the further diversion of firearms
into illegal channels of commerce.

At the same time, ATF's findings might have undergirded the policies of a number
of municipalities, under which civil lawsuits were pursued against the gun industry for
gun violence in their jurisdictions. This is despite the fact that ATF has consistently
stated that trace frequency, in and of itself, is not indicative of criminal activity by an FFL.
In addition, with ATF data, gun control advocates began identifying and publishing the
names of FFLs who in their judgement were "bad apple" dealers, as the data showed
"crime guns" being traced back to their businesses, along with multiple handgun sales
reports, in numbers the gun control advocates found unacceptable.15

As noted above, while multiple handgun sales reports, along with firearm trace and
other investigative data, can be strong indicators of illegal firearms trafficking, alone they
do not constitute proof of criminal wrongdoing on the part of an FFL. As required under
the appropriations rider, which was initially predicated on ATF's disclosure policy, ATF
declined to disclose such data to the City of Chicago. ATF argued in part that trace and
multiple handgun sales data were exempt from the Freedom of Information Act (FOIA),
as such data could potentially compromise ongoing investigations. While the 7th Circuit
rejected ATF's FOIA arguments, the Tiahrt amendment was enacted, preventing ATF
from releasing trace data for any purpose other than a "bona fide" criminal investigation.16


Endnotes

4
Another ATF appropriations rider prohibits those records from being searched electronically
by firearm or firearm owner to prevent their use as a gun registry. Those records are currently
indexed by firearm serial number.
5
Those reports are available at [http://www.atf.treas.gov/firearms/ycgii/2000/index.htm].
6
Philip J. Cook and Anthony A. Braga, "Comprehensive Firearms Tracing: Strategic and
Investigative Uses of New Data on Firearms Markets," Arizona Law Review, vol. 43:2, 2001, p.
290.
7
Ibid.
8
See U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Crime Gun
Trace Reports (2000), National Report, The ATF Youth Crime Gun Interdiction Initiative, (July.
2002), p. A-3. Available at [http://www.atf.gov/firearms/ycgii/2000/index.htm].
9
Ibid.
10
18 U.S.C. 923(g)(3).
11
Ibid.
12
In the 109th Congress, section 7 of H.R. 5005 (discussed below) would have repealed the
multiple handgun reporting requirement to state and local law enforcement.
13
U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Commerce in
Firearms in the United States (February 2000), p. 22.
14
Ibid.
15
Brady Campaign to Prevent Gun Violence, "Brady Campaign to Prevent Gun Violence: Ten
Worst `Bad Apple' Gun Dealers in America," July 16, 2003.
16
For further information, see City of Chicago v. U.S. Department of Treasury, 297 F.3d 672 (7th
Cir. 2002), vacated and remanded, 537 U.S. 1229 (2003), vacated on rehearing, 423 F.3d 377
(7th Cir. 2005).