When Guns Are Sold Illegally, ATF Is Lenient on Punishment
Posted June 3, 2018 5:09 p.m. EDT
WASHINGTON — As they inspect the nation’s gun stores, federal investigators regularly find violations of the law, ranging from minor record-keeping errors to illegal sales of firearms. In the most serious cases, such as the sale of a gun to a prohibited buyer, inspectors often recommend that gun dealers lose their licenses.
But that rarely happens. Senior officials at the Bureau of Alcohol, Tobacco, Firearms and Explosives regularly overrule their own inspectors, allowing gun dealers who fail inspections to keep their licenses even after they were previously warned to follow the rules, according to interviews with more than half a dozen current and former law enforcement officials and a review of more than 100 inspection reports.
One store was cited for failing to conduct background checks before selling a gun. Another store owner told investigators he actively tried to circumvent gun laws. One threatened an ATF officer, and another sold a gun to a customer who identified as a felon. All were previously cited by the ATF. In each instance, supervisors downgraded recommendations that the stores’ licenses be revoked and instead let them stay open.
Of about 11,000 inspections of licensed firearm dealers in the year starting in October 2016, more than half were cited for violations. Less than 1 percent of all inspections resulted in the loss of a license.
The episodes shed light on the ATF’s delicate role in policing the gun industry, which has historically resisted regulation and holds powerful political sway over the ATF’s appropriators in Congress. Lawmakers set a stringent requirement decades ago for gun inspectors: They must prove that store owners not only violated the law but intended to do so. The bureau has sidestepped the potential legal appeals and political fallout of revoking licenses by trying to work with gun dealers rather than close their stores.
The approach is widely seen by the ATF as the best option to regulate the gun industry without fostering an adversarial relationship, but some in the bureau consider it a compromise that is at best nuanced and at worst unsafe.
“We’re not selling ice cream here,” said Howard Wolfe, who retired from the ATF in 2006 after 36 years on its industry operations side, including as an inspector and supervisor. “You’re selling something here that if you screw up, somebody can be killed.”
The ATF declined repeated requests for comment.
Dozens of the ATF’s inspection reports cited serious, repeated violations. They were obtained via a Freedom of Information Act lawsuit by the Brady Center to Prevent Gun Violence, a nonprofit coalition to combat gun violence, and shared with The New York Times. They are not comprehensive, and continue to be produced on a rolling basis. At Gun World in Hilliard, Ohio, a dealer was found in 2016 to have repeatedly sold firearms to people who appeared to be prohibited from owning them, including a customer who self-identified as a felon. It is a federal crime for a felon to have a gun.
An ATF inspector recommended the store’s license be revoked. Citing Gun World’s “extensive noncompliance history,” the inspector’s supervisor agreed with the suggestion to revoke its license, according to a written report, but nonetheless downgraded the recommendation to a warning, saying it would give the dealer “one more opportunity” to get into compliance. Gun World remains open. When reached by telephone, an employee at Gun World hung up.
Top Guns in Madisonville, Kentucky, was cited in 2017 for repeated failures to conduct federal background checks before selling firearms. An ATF supervisor concurred with the inspector’s recommendation to revoke the license, but a senior supervisor downgraded it. ATF headquarters in Washington, the senior supervisor said, warned that revoking Top Guns’ license could prompt a lawsuit.
Top Guns has since voluntarily closed.
That the ATF allowed some stores to stay in business, despite egregious violations, disturbed some gun dealers. If dealers are cited for serious violations such as selling guns to prohibited customers or losing firearms, “then just do everybody a favor. Give them your damn license,” said Ryan Horsley, manager of Red’s Trading Post in Twin Falls, Idaho. Red’s was in danger of losing its license in 2007 over paperwork violations, though Horsley won an appeal and stayed in business.
The vast majority of America’s gun dealers largely comply with federal laws, and the level of violations cited in the ATF’s reports varies widely. Many are basic record-keeping violations born out of the complicated paperwork required to purchase a gun. “You can’t do it 100 percent,” Steve Clark, the owner of Clark Brothers Gun Shop in Warrenton, Virginia, said of compliance inspections. Clerical errors are common, said Clark, whose store opened in 1960 and was inspected by the ATF this year. As long as dealers work with the ATF to correct errors and file correctly, the violation is rarely seen as serious.
“Some gun shops consider it a pain. They feel like the ATF is the bad guys,” Clark said. “The whole idea here is to catch bad guys. I want bad guys to not have guns just as much as anybody.”
“Most gun dealers abide by the law and are really careful to sell guns in a responsible manner,” said Avery Gardiner, the co-president of the Brady campaign. “There’s a small number of gun dealers engaged in really irresponsible practices, putting everybody at risk, and the ATF knows exactly who they are and allows them to continue operating.”
For gun dealers to lose their licenses, the ATF must prove they “willfully” violated the Gun Control Act. Violating the law is not enough to justify the loss of a license; inspectors must prove that store owners knew they were acting illegally. “Other regulatory statutes don’t have that,” said Adam Winkler, an expert on constitutional law and gun policy. “This is part of a larger pattern in the federal gun laws that make it hard for ATF to enforce.”
In the bureau, one former ATF inspector said, that standard was seen as difficult to uphold in court, where dealers would almost certainly appeal the ATF’s decision. That prompted supervisors to overrule inspectors’ recommendations to revoke licenses, said the former inspector, who requested anonymity because he continues to work with the gun industry.
To prove violations were willful, the ATF seeks to establish a record of warnings. In warning letters, senior ATF officials told dealers that violating the Gun Control Act again could jeopardize their license. But a review of ATF records showed that even when stores had received such warnings and continued to violate the law, supervisors let them keep operating.
“We operated in the idea that we’re not in the business of putting people out of business,” said Earl Kleckley, a former director of industry operations in the ATF’s Los Angeles field office. “We have put people out of business, but that was a situation where these business entities had more than one bite of the apple and continued to operate in a violative fashion.”
Added Wolfe: “We used to kind of bend over backward.”
One ATF official cited the political environment when asked why the bureau overrules inspectors’ delicensing recommendations. The official cited the 2007 nomination of Michael Sullivan, then the acting director, to be permanent head of the ATF. Republican senators held up the nomination over allegations from constituents, including Red’s Trading Post, that the ATF was too aggressive in its oversight.
The National Rifle Association, the gun industry’s powerful lobbying arm, did not respond to a request for comment.
Attorney General Jeff Sessions has pushed prosecutors to more aggressively enforce federal gun laws as part of the Trump administration’s push to reduce violent crime. But prosecutors have focused on gun users, not sellers.
The inspection process is further complicated by laws that govern record-keeping in the gun industry, which forbid the ATF to keep records electronically.
“There’s a huge fear in the firearms community of firearms registration,” said Wolfe, citing an argument from gun rights advocates that the Second Amendment prohibits the government from maintaining any registry of gun owners. Inspections, he said, sometimes require combing through moldy stacks of papers, or records so old they are unreadable. The ATF has historically struggled to meet its goal of inspecting each licensed firearms dealer once every three to five years. The United States had more than 130,000 active federal firearms licensees in 2017, including dealers, manufacturers and pawnbrokers, according to the ATF’s most recent statistics. Resource limitations have forced the bureau to prioritize some gun dealers over others.
“The most complicated thing about it is how to choose the people to be inspected, because there are so many of them and so few bodies,” Wolfe said.