Alcohol, Tobacco and Firearms: Issues Related to Use of Force, Dealer Licensing, and Data Restrictions
Released: 1996-04-25T00:00:00

Letter

Alcohol, Tobacco and Firearms: Issues Related to Use of Force, Dealer Licensing, and Data Restrictions

Mr. Chairman and Members of the Subcommittee: We welcome this opportunity to appear before you today to discuss three areas of concern raised by the Committee last summer in its fiscal year 1996 appropriations report on the Bureau of Alcohol, Tobacco and Firearms (ATF). Those concerns involved ATF’s (1) use of force, (2) effect on the number of licensed firearms dealers, and (3) compliance with legislative restrictions on maintaining certain firearms licensee data. Today, we are releasing reports that address the first two concerns—use of force and licensing of firearms dealers. With respect to the third concern, data restrictions, our work is ongoing. As agreed, therefore, we will summarize our findings related to one data system—ATF’s system for maintaining records of firearms licensees who have gone out of business.

Use of Force

With regard to the use-of-force issue, you asked us to (1) identify and describe ATF’s policies for the use of deadly force, (2) determine how ATF conveys its policies to agents, (3) determine the reasons for and the extent to which ATF uses dynamic entry and the equipment used to accomplish these entries, and (4) determine whether ATF has complied with its procedures for investigating shooting and alleged excessive force incidents. Moreover, you asked us to compare these issues with the way that the Department of Justice’s Drug Enforcement Administration (DEA) and Federal Bureau of Investigation (FBI) address them.

To place ATF’s use-of-force incidents in perspective, from fiscal years 1990 through 1995, ATF, on average, arrested about 8,000 suspects but was involved in fewer than 10 reported shooting or alleged excessive force incidents annually.

ATF’s Deadly Force Policies Have Remained Generally Consistent in Recent Years and Are Generally Consistent With DEA’s and FBI’s Prior Policies

In October 1995, the Department of the Treasury and Justice adopted deadly force policies for their component agencies that are uniform except for certain agency mission-specific provisions. Both policies provide that officers may use deadly force only when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or another person.

the new policy. The 1988 ATF and 1995 Treasury policies were consistent in that both policies generally authorized the use of such force only when the law enforcement officer reasonably believed or perceived that there was an imminent threat or danger of death or serious physical injury to the officer or another person. The two distinctions were that (1) the 1995 Treasury policy refers to the use of “deadly force,” while the 1988 ATF policy referred more specifically only to the use of a “firearm” and (2) the 1995 Treasury policy allows for the use of deadly force only when the law enforcement officer has a “reasonable belief” that there is an imminent danger of death or serious physical injury, while the 1988 ATF policy allowed for the use of such force when the agent “perceives” such a threat. Additional discussion regarding these policies and distinctions, as well as those discussed below, is provided in chapter 2 (pp. 34 to 36) of our Use-of-Force report.

In addition, the prior ATF policy was, with three distinctions, consistent with prior DEA and FBI policies. The prior ATF policy was consistent with prior DEA and FBI policies in that they generally authorized the use of deadly force only when the agents reasonably believed or perceived that there was a threat or danger of death or serious bodily injury to the agent or another person. The three distinctions were that (1) only ATF’s policy provided the additional restriction that the threat of death or serious bodily harm be “imminent”; (2) the ATF and DEA policies referred to the shooting of “firearms,” while the FBI policy used the term “deadly force”; and (3) the ATF policy used the term “perceives,” while the DEA and FBI used the terms “reasonably believes” and “reason to believe,” respectively.

ATF, DEA, and FBI Convey Deadly Force Policies to Their Agents in Similar Ways

ATF conveys its deadly force policies to new agents through training. Our discussions with training officials, reviews of training materials and policies, and observations showed that the training provided new ATF agents to introduce them to the deadly force policies was consistent with the Treasury/ATF deadly force policies, and the types of training provided were consistent with the training provided to new DEA and FBI agents.

from a law enforcement officer to one where a subject assaults an officer with the potential for serious bodily harm or death. The model also presents five corresponding levels of force that would be appropriate to respond to the subject’s level of threat. Those responses range from verbal commands when the threat is low to deadly force when the threat is high. Emphasis is placed on resolving situations with the proper level of force while recognizing that situations can escalate and de-escalate from one level to another.

Once training is completed, ATF requires that the use-of-force policies are to be reiterated to agents throughout their careers at quarterly firearms requalifications and during tactical operations briefings. DEA and FBI officials said that their deadly force policies also are to be reiterated at firearms requalifications.

ATF’s Use of Dynamic Entry and Related Equipment Was Generally Comparable to DEA’s and FBI’s

Dynamic entry, which relies on speed and surprise and may involve forced entry, is one of several tactical procedures used by ATF to execute search and arrest warrants. Dynamic entry was a principal tactical procedure used by ATF, DEA, and FBI when serving high-risk warrants—those where ATF believes that suspects pose a threat of violence—and entry to premises was required. ATF statistics on suspects arrested from firearms investigations during fiscal years 1990 through 1995 showed that 46 percent had previous felony convictions, 24 percent had a history of violence, and 18 percent were armed at arrest.

All ATF case agents, including those assigned to special weapons and tactics units, known as Special Response Teams (SRT), are to be trained in the dynamic entry technique. From fiscal years 1993 through 1995, ATF conducted 35,949 investigations and arrested 22,894 suspects. During this same period, SRTs were deployed 523 times, and SRT members were involved in 3 intentional shooting incidents, 1 of which—the Waco operation—resulted in fatalities. We reviewed the available documentation for all 157 SRT deployments for fiscal year 1995 and found that the dynamic entry technique was used almost half the time and was the predominant technique used when entry to a building was required. In none of the 1995 SRT dynamic entries did ATF agents fire their weapons at suspects.

vests. In addition to the standard equipment available, SRTs have access to additional firearms, such as bolt-action rifles, and specialized tactical equipment, such as diversionary devices. Equipment used by SRTs is generally comparable to that used by DEA and FBI agents during similar operations.

ATF Complied With Its Procedures for Investigating Shooting and Alleged Excessive Force Incidents

ATF’s procedures for reporting, investigating, and reviewing shooting and excessive force incidents, as revised in October 1994, are consistent with guidelines and/or standards recommended by the International Association of Chiefs of Police, the President’s Council on Integrity and Efficiency, and the Commission on Accreditation for Law Enforcement Agencies. For example, agents are required to immediately report shooting incidents to their supervisors, incidents are to be investigated by an independent unit, and certain reports are to be reviewed by a review board on the basis of the nature and seriousness of the incident.

Overall, DEA’s and FBI’s procedures for reporting, investigating, and reviewing shooting incidents are comparable to ATF’s. Distinctions in the procedures include (1) DEA and FBI delegate some investigations to their field divisions but ATF does not and (2) DEA’s and FBI’s review boards include representatives from Justice—ATF’s review board does not include representatives from Treasury.

Although ATF’s excessive force procedures are comparable to DEA’s, with one distinction relating again to delegation, they are distinct from those employed by FBI. ATF is to investigate allegations of excessive force first and—if warranted—refer them to Justice for possible criminal investigation. In contrast, FBI is to refer all allegations of excessive force to Justice for possible criminal investigation before investigating the allegations itself.

had been reviewed by a designated headquarters unit. Our review also showed that ATF’s investigations of 38 reported shootings involving ATF agents firing their weapons at suspects found each to be justified and within the scope of its use-of-force policy. In addition, ATF’s investigations found that 18 of 25 reported excessive force allegations in three misconduct categories were unsubstantiated. Four investigations found evidence of some agent misconduct, two investigations were ongoing at the time of our review, and one was closed without action because ATF determined that there was no need for further review. Agents found to have engaged in misconduct received written reprimands and/or suspensions.

Declines in Firearms Dealers

Regarding recent declines in the number of firearms dealers, you asked us to (1) determine the extent and nature of the declines; (2) determine what factors contributed to the declines, including whether ATF had a policy to reduce the number of dealers; and (3) obtain the views of pertinent organizations on the advantages and disadvantages of reducing the number of dealers.

Extent and Nature of Declines

Since reaching a high point in April 1993, the number of firearms dealerssharply declined by about 35 percent, from about 260,700 to about 168,400 dealers as of September 30, 1995—the lowest number since fiscal year 1980. This decline occurred nationwide and ranged from 23 percent in Montana to 45 percent in Hawaii. To provide a context for interpreting the recent decline, appendix II shows the number of firearms dealers in fiscal years 1975 through 1995.

licensees when compared to previous years. Also, a large number of licensees voluntarily surrendered their licenses. Appendix III provides detailed data for fiscal years 1975 through 1995 on application and license activity for all categories of licensees.

Several Factors Contributed to the Decline

Our review showed that various factors collectively contributed to the decline in the number of dealers. First, in January 1993, ATF initiated a National Firearms Program, which consisted of several regulatory enforcement strategies, including a strategy to closely scrutinize applicants for federal firearms dealer licenses and the operations of licensees to ensure strict compliance with the Gun Control Act of 1968, as amended. Under this program, the number of ATF full field inspections of firearms dealers and licensees increased. According to ATF, several factors led to this increased enforcement strategy. These factors included rising violence associated with the illegal use and sale of firearms, national media attention on the ease of obtaining a firearms dealer license, and ATF data that indicated that many licensees may not have been engaged in a firearms business.

As a result, the number of ATF full field inspections of all applicants for federal firearms licenses and the operations of all such licensees increased from about 19,900 in fiscal year 1992 to a high of about 27,000 in fiscal year 1993—the period during which the National Firearms Program was initiated. Furthermore, from 1993 to 1995, the number of ATF inspections generally averaged about 9 percent of the total licensees, compared to 7 percent and lower before fiscal year 1993.

As a result of its increased inspections, according to ATF, about 7,600 firearms dealer licensees voluntarily surrendered their licenses in fiscal years 1994 and 1995, the only 2 years for which ATF collected such data.

Under ATF’s National Firearms Program, when an inspection showed that a dealer was not “engaged in a firearms business” at the location shown on the license, ATF inspectors were to advise the dealer to voluntarily surrender the license before implementing a formal revocation action.

In addition, ATF used telephone interviews, called preliminary inspections, in fiscal years 1993 through 1995 as a means of scrutinizing federal firearms dealer applicants. According to ATF, a substantial portion of the approximately 2,500 applications abandoned and 7,200 applications withdrawn by applicants during fiscal year 1993 was directly attributable to ATF’s preliminary inspections.

A second factor contributing to the declines was an August 1993 memorandum from the President directing Treasury and ATF to take actions to ensure compliance with federal firearms license requirements. The President pointed out that there were over 287,000 federal firearms licensees (all categories), many of which he stated probably should not have been licensed because they were not engaged in a legitimate firearms business.

A third contributing factor was the Federal Firearms License Reform Act of 1993, passed by Congress in late November 1993. This act increased the licensing fees for obtaining and renewing a federal firearms dealer license.

A fourth contributing factor was ATF’s revisions to the licensing application process that were done in late 1993 and early 1994 in response to the President’s August 1993 memorandum. ATF significantly revised the application form by adding a number of questions and requirements for supporting information to help it determine whether applicants intended to engage in the firearms business. For example, ATF required applicants to (1) submit fingerprints and photographs of themselves, (2) furnish a diagram of the business premises where their firearms inventories were located, and (3) provide a description of their security system for safeguarding firearms inventories. In July 1995, ATF reduced the number of questions and amount of supporting documents required.

requiring applicants for licenses to certify that their firearms business would comply with state and local laws.

Finally, along with federal laws and administration actions contributing to the decline, the enforcement of state and local laws may have contributed to the reduction in the number of firearms dealers. These include licensing, taxing, and other business-related laws.

ATF Recognized That Declines Would Likely Occur

Although ATF intensified its enforcement efforts, we found no evidence from our review of ATF documents and interviews with numerous ATF officials that ATF had a policy or sought to reduce the number of licensed dealers by some targeted number. Instead, we found that ATF’s strategy since 1993 had been to closely scrutinize firearms dealer applicants and licensees to ensure strict compliance with the Gun Control Act. While ATF had no policy to reduce the number of dealers to a targeted number, it recognized that its strategy of increased enforcement, along with the legislative actions, would likely result in a reduction in the number of dealers.

External Organizations’ Views on Reducing the Number of Firearms Dealers

We contacted officials from seven organizations to obtain comments on the advantages and disadvantages of reducing the number of licensed firearms dealers. Appendix IV contains the names and descriptions of the organizations, which represented the firearms industry, firearms consumers, law enforcement, and gun control interests.

The officials from the seven organizations provided us with a variety of views on the advantages and disadvantages of reducing the number of firearms dealers. Their views generally concerned the effect that declines in the number of firearms dealers may have on crime, regulatory enforcement, and economics. Their views ranged from those who believed that by reducing the number of dealers there could be less crime and better monitoring of dealers to those who feared that dealer decreases would curb competition, raise prices, and limit the lawful availability of firearms. Along with these views, the officials from the seven organizations provided their views on the reasons for the declines in the number of firearms dealers, which confirmed the results of our analysis regarding factors contributing to the declines.

Restricted Firearms Licensee Data

licensee data. For these hearings, we agreed to focus on ATF’s Out-of-Business Records System and its role in the firearms tracing process. Specifically, our objectives were to (1) describe ATF’s overall firearms tracing process and, specifically, the Out-of-Business Records System and its role in the process; (2) determine the number and results of ATF’s firearms traces and the number of out-of-business records processed and used; and (3) determine whether the Out-of-Business Records System complies with legislative data restrictions. We also agreed to assess information on the Out-of-Business Records System that ATF supplied to one Subcommittee member. Detailed results and the scope and methodology of our review pertaining to ATF’s Out-of-Business Records System are included in appendix V.

Firearms Tracing Operations

The Gun Control Act requires federal firearms licensees to maintain records of firearms transactions and make these records available to ATF under certain circumstances. Through the use of these records, ATF provides criminal firearms tracing services to law enforcement agencies. To perform traces, ATF needs to know the manufacturer and serial number of the gun. ATF’s National Tracing Center (NTC) traces the ownership of firearms by using documentation, such as out-of-business licensee records, which are maintained in ATF’s data systems, and/or by contacting manufacturers, importers, wholesalers, and retailers (i.e., firearms dealers). NTC’s objective is to identify the last known purchaser of the firearm. NTC considers a trace completed when it traces the firearm to a retail firearms licensee or purchaser or when it cannot identify the purchaser.

From fiscal years 1992 through 1995, ATF received a total of about 263,000 trace requests. During this period, the number of trace requests ATF completed more than doubled, from about 43,000 in fiscal year 1992 to about 86,200 in fiscal year 1995. ATF completed a total of about 243,600 trace requests during this 4-year period. In about 41 percent of the completed trace requests, ATF identified a retail firearms licensee or purchaser of the traced firearm.

Out-Of-Business Records System

regulations requiring firearms licensees that permanently discontinued their businesses to forward their records to ATF within 30 days following the discontinuance. The Firearms Owners’ Protection Act of 1986 codified this reporting requirement. Accordingly, since the enactment of the Gun Control Act, ATF has maintained the out-of-business records at a central location, which is currently at NTC in Falling Waters, West Virginia.

Before fiscal year 1991, ATF maintained these records in hard copy. Performing traces by manually searching these copies was very time consuming and labor intensive. ATF also had storage space problems. In 1991, ATF began a major project to microfilm these records and destroy the originals. This system still resulted in time-consuming traces. In fiscal year 1992, using a minicomputer ATF created a computerized index of the microfilm records. The index contained information, including the firearm’s serial number and the firearms licensee number, to tell the tracing staff which microfilm cartridge to search and where on the cartridge the record was located. The indexed information that is captured by the minicomputer is then stored on a mainframe computer’s database to allow searches of the indexed information. Information, such as the firearm purchaser’s name or other identifying information, remains stored on the microfilm and is not computerized. ATF officials said all traces now begin with a query of the Out-of-Business Records System.

During fiscal years 1992 through 1995, ATF received records from about 68,700 firearms licensees that went out of business. During this time, the number of licensees that went out of business more than doubled, from about 34,700 in 1992 to about 75,600 in 1995, and the percent of licensees that sent in their records increased by about three-fourths, from about 25 percent to about 43 percent. Also, during this period, ATF officials estimated that ATF microfilmed about 47 million documents contained in about 20,000 boxes. In addition, the officials estimated that ATF used the out-of-business licensees’ records to help complete about 42 percent of all completed trace requests during this period.

Out-Of-Business Records System Complies With Legislative Data Restrictions

18 U.S.C. 926(a), prohibits ATF from issuing any rule or regulation, after the date of that act, requiring that (1) firearms licensee records (or any portion thereof) be recorded at or transferred to a federal, state, or local government facility or (2) any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established.

In a March 1995 letter to one Subcommittee member following hearings on Treasury’s fiscal year 1996 budget request, ATF described its maintenance and use of the out-of-business dealers’ records and explained that it believes these records are handled in compliance with the law.Specifically, ATF concluded that the storage and retrieval systems used for these records had been designed to comply with the statutory restriction relating to the establishment of a registration system for firearms, firearms owners, or firearms transactions or dispositions. We concur with this conclusion. Our detailed legal analysis is contained in appendix V.

Furthermore, with regard to the operation of the Out-of-Business Records System, our review of ATF’s system documentation and discussions with ATF officials, along with our observation of the out-of-business records process at NTC, basically confirmed that ATF was operating the system in a manner consistent with the way it was designed by ATF and described in Treasury’s March 1995 letter. We found no evidence that ATF captures and stores the firearms purchasers’ names or other identifying information from the out-of-business records in an automated file.

Agency Comments

ATF provided oral comments on a draft of our testimony at a meeting with the ATF Director and other top-level officials on April 16, 1996. With regard to the use-of-force and firearms dealer licensee issues, the officials reiterated their previous comments on the respective reports, i.e., our presentation of the facts was accurate, thorough, and balanced. They also agreed with our findings and conclusions regarding the Out-of Business Records System and provided some technical comments, which we incorporated where appropriate.

Mr. Chairman, this concludes my prepared statement. I would be pleased to answer any questions you or the other Subcommittee members might have.