- Bennett Nuss
Legal Tracking: ATF improves firearms tracking but misses an important target
Writers: Bennett Nuss, Devin Iorio, Siena Roberts
Firearm casualties make up a considerable percentage of deaths in the United States, accounting for 45,222 deaths in 2020. While a majority of these deaths were due to suicide by firearm, 43% of gun fatalities resulted from murder and the remaining 3% of deaths were unintentional or involved police interaction.
To trace firearms across the country, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) relies on regulations promulgated within the Gun Control Act of 1968, which requires that every firearm be marked with its model, calibre or gauge, manufacturer, serial number, importer’s address and country of origin. Furthermore, regular commercial firearm sellers are required to have a Federal Firearm License (FFL) and to keep accurate logbooks of every firearm bought and sold by their business.
This record keeping is crucial to the crime investigation process undertaken by the ATF because the first place the agency goes to track firearm purchases is the last seller of a firearm; it is the most reliable method to discover the last bona fide purchaser of that firearm. The ATF’s ability to accurately track firearms using this method has increased 173% over the course of the last two decades. In fact, the agency engaged in 564,000 traces in 2021 alone. According to the ATF, the upkeep of sale documentation is the most important way that it can track gun crime. Half of all guns used in crimes were purchased no more than three years earlier through a bona fide seller and most crimes are committed within 10 miles of the location of where the firearm was last sold.
However, this methodology is imperfect. While the ATF completed 77% of all firearm traces submitted to it by local governments, 23% could not be completed for various reasons, including submission errors by a law enforcement agency (7.2% of claims). Even more concerning, the agency’s inability to trace includes missing FFL records (5% of cases), firearms which were manufactured before the passage of the 1968 Gun Control Act (3.4%) and guns with destroyed serial numbers (2.5%).
There is also a considerable issue regarding the impossibility of record keeping for privately made firearms (PMFs), as they are non-compliant with the standards promulgated in the 1968 Gun Control Act. According to the ATF, law enforcement collected almost 38,000 PMFs between 2017 and 2021. This number has increased exponentially between 2017 and 2021: only 1,629 PMFs were collected by police agencies in 2017, but 19,273 were collected in 2021, an increase of 1,083%.
The ATF’s report makes multiple recommendations to improve the agency’s ability to track firearms across purchasers. These recommendations are broken into two general categories: improving the National Tracing Program and increasing operational security regarding the transit of firearms.
The most important of the recommendations from the ATF’s report is a request for improvements in the National Tracing Program. The National Tracing Program is a digital network containing firearms information collected by FFL carriers when they sell firearms. The National Tracing Program has increased its funding by 139% between 2000 and 2011, and the National Tracing Center’s ability to track guns has allowed it to respond to an increase of 173% more requests with 85% accuracy. The agency suggests that increased communication and standardization of methodology to collect gun data will aid in its ability to quickly respond to firearm tracking requests.
The ATF also has a series of other recommendations relating to regulations that could prevent theft of firearms in transit, including requiring unmarked packages when transporting firearms, modius operandi tracking, limiting firearm shipment to carriers that have universal end-to-end package tracking and authorizing the use of electronic tracking devices in firearm shipments so that law enforcement can rapidly respond to a report of a theft.
While these suggestions are promising, the ATF’s regulations lack a recommendation for a regulatory response to the creation of PMFs. This oversight is especially concerning considering that 20,000 PMFs were used in crimes in 2021 alone. The threat these weapons provide is startlingly clear; last year, former Prime Minister of Japan, Shinzo Abe, was assassinated with a PMF in a country that more strictly limits access to firearms than the United States.
The ATF adopted a rule last year that bans the sale of certain materials that can be easily turned into a PMF, but this is not likely a sufficient regulation to aid law enforcement in preventing and investigating crimes done with these weapons as there is still no listed method to track owners of PMFs to the firearms themselves. Considering that firearms have been able to be 3-D printed since 2012, a lack of response to this trend is troubling.
While it is impressive that the ATF has adapted well to the digitization of national commerce, and the recommendations that it provides are beneficial, it should be looking to combat the increasing proliferation of PMFs more closely.
Criminal justice in February:
A spotlight has recently come onto the Memphis Police Department after Tyre Nichols’ death, and information has come out that the department has lowered its hiring standards in past years. The lowering of hiring standards comes after it was revealed that the department has hundreds of open positions and a desperate need to fill them. Memphis Police Director, Cerelyn Davis, told city council members there were currently 125 empty supervisor slots. The department has lowered hiring standards by phasing out requirements to have college experience, military service or previous work on the police force. Currently, the only requirement is two years of work experience. It was also revealed that the department has sought state waivers to get applicants with criminal records hired, and that the department has loosened the physical fitness requirements. Additionally, the department is offering new recruits a $15,000 signing bonus and $10,000 in relocation allowances.
Washington State Rep. Lauren Davis is sponsoring House Bill 1696 with the goal of making criminal charges for cyberstalking the same as stalking. Currently, stalking is a gross misdemeanor or felony under specific circumstances. Cyberstalking is also currently a gross misdemeanor and in certain circumstances it can be a felony. Under HB 1696, cyberstalking would fall under the crime of stalking, instead of being its own crime. The criminal charges would also be standardized, designated as either a gross misdemeanor or a class B felony.
Both the House and Senate are working towards new gun control regulations that would permanently ban individuals from buying and owning firearms if they have been convicted of any sort of domestic abuse while in a “dating relationship.” This effort is working towards closing the “boyfriend loophole” in gun control. The regulation is seeking to permanently ban individuals convicted of domestic abuse from purchasing a gun, no matter how recent the abuse took place or what type of relationship the individual was in at the time of the abuse. This comes after President Biden signed a law in 2022 known as the “Bipartisan Safer Communities Act,” which clarified that individuals convicted of domestic violence while in “dating relationships” would consider them as spouses for the purposes of the National Instant Criminal Background Check System.
Sen. Amy Klobuchar (D-MN) introduced a new bill on Feb. 14, 2023, which would make it illegal to knowingly distribute “intimate visual depictions” without the consent of the individual in the “visual depictions” consent. This Bill is co-sponsored by John Cornyn (R-TX). The bill works towards making it illegal to knowingly distribute any sort of visual pornographic material of an individual without their explicit consent.
As of Jan. 19, 2023, the D.C. Council enacted the “Omnibus Firearm and Ghost Gun Clarification Amendment Act of 2022” (D.C. ACT 24–779). This amendment changes the definition of a “ghost gun,” allows self-altered firearms to be lawfully registered under certain conditions, modifies concealed pistol provisions and amends two sections of the D.C. Code (§ 22–4504.02 and § 22–4503) to clarify prosecution of lawful transportation of firearms and unlawful possession of firearms. Also, the amendment modifies D.C. Code § 22–4504.02 so that unlawful transportation of firearms crimes is now to be brought by the Office of the Attorney General for the District of Columbia. The amendment also revises D.C. Code § 22–4503, the unlawful possession of a firearm section, to provide liability where a defendant is in possession of a firearm, has an order in place that requires them to relinquish firearms and has a stay away/no contact order or order not to threaten, assault, or stalk another person pending against them.