Purpose

The Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) activities at gun shows received widespread attention in February 2006 when Congress convened two hearings, on February 15 and 28, 2006, to examine law enforcement techniques used by ATF agents at a series of eight gun shows held in Richmond, Virginia, from May 2004 through August 2005.¹⁴

Four witnesses testified at the first hearing and stated that ATF agents used aggressive and harassing techniques at a gun show held on August 13 and 14, 2005, at the Richmond International Raceway in Virginia. Three of the witnesses were present at the gun show: the gun show promoter, a gun salesman who worked for a federally licensed dealer but represented himself as a private seller at the show, and a federally licensed dealer who had exhibited his firearms collection for sale. The fourth witness was a private investigator who was hired by the National Rifle Association (NRA) to conduct an investigation of ATF enforcement activity at the August 2005 gun show.¹⁵ The witnesses made the following allegations about ATF’s activities at the Richmond gun show:

• The large on-site presence of ATF agents and local law enforcement officers intimidated prospective gun buyers and hurt attendance at the gun show.

• Under ATF’s direction, local police officers visited the residences of certain prospective gun buyers and interrogated family members and neighbors about the buyers. The witnesses questioned the legality of these residency checks and also alleged that the checks made buyers wait much longer to purchase a gun.

• ATF agents targeted women and minorities as possible straw purchasers and singled them out for extra scrutiny.¹⁶ The witnesses alleged that the targeting of women and minorities represented racial profiling, especially of African American women.

• ATF agents used coercive interrogation techniques, stopped gun buyers and seized their weapons without cause, and failed to apprise individuals of their rights against self-incrimination and to have legal counsel.

At the second congressional hearing, ATF officials and local law enforcement agencies involved in operations at the Richmond-area gun shows responded to the allegations. Representatives from ATF, the City of Richmond Police Department, and Henrico County Division of Police made the following points during their testimony about their agencies’ participation in ATF’s operations at the gun shows.¹⁷

• ATF maintained a presence at the Richmond gun shows because many of the guns recovered by the Richmond Police Department in connection with violent crimes had been purchased illegally (including through straw purchasers) at local gun shows. Also, individuals who purchased the firearms illegally at Richmond-area gun shows did not always provide accurate residence information at the time of purchase, as required by law.

• For the gun shows in question, especially the August 2005 gun show at the Richmond International Raceway, ATF acknowledged that some investigative techniques were not implemented in a manner consistent with ATF best practices. ATF determined that it “ could have done better by having the law enforcement command post and briefings offsite of the gun show, by not utilizing a letter to convey possible violations of law when guns were taken into custody, and by more thoroughly explaining the parameters for conducting residence checks.”¹⁸ An ATF official testified that subsequent to the August 2005 Richmond gun show, ATF issued a memorandum to its field divisions and offices “reminding employees of both policy and best practices related to gun show investigations.”¹⁹ He also stated that the “focus at the Richmond-area gun shows was on indicators of criminal activity, not on the color of skin or the gender of potential suspects.... [T]he allegations of racial profiling have no basis in fact. ATF does not condone or engage in racial profiling of any sort and we strictly adhere to the Attorney General’s guidelines in this regard.”²⁰

• An official of the City of Richmond Police Department stated that “ Richmond has been plagued with issues surrounding violent crime and use of firearms associated with those crimes.”²¹ The Department supported the operations at the gun shows “because information led us to believe that there were illegal transactions occurring at local gun shows.... [W]e felt we could make an impact on those firearms that are being used for illegal purposes prior to them being used [in a criminal] act.”²² According to the police official, the Department had no intent to deny any citizen the ability to lawfully purchase a firearm, but rather to prevent the acquisition of a firearm in an illegal manner, and thereby reduce crime in the City of Richmond.

• Henrico County police officers conducted only six residency checks of addresses in the county. The officers had 20 minutes from the time they were instructed by personnel in the command post to verify an address until they had to relay the results back to the command post and, as a result, Henrico officials said no purchases by Henrico County residents were denied or delayed due to the checks. The Henrico County Division of Police also assigned additional plainclothes officers to assist ATF, the City of Richmond Police Department, and the Virginia State Police inside the gun show by monitoring firearms transactions.

Subsequent to the hearings, the House of Representatives passed H.R. 5092, “Bureau of Alcohol, Tobacco, Firearms and Explosives Modernization and Reform Act of 2006.” The bill included language requesting that the Office of the Inspector General (OIG) assess how ATF conducts “the gun show enforcement program and blanket residency checks of prospective and actual firearms purchasers.”²³ The bill was subsequently forwarded to the Senate for consideration, but no vote was taken by the Senate in the 109th Congress, and the proposed legislation was not enacted.

In light of the congressional interest in this issue, the OIG conducted this review to examine the policies, procedures, and oversight mechanisms that guide ATF’s investigative operations at gun shows.

General Characteristics of Gun Shows

ATF defines a gun show as any exhibition of firearms, ammunition, and accessory items at a fairground, convention hall, or similar setting such as a local armory. The shows are usually publicized as gun shows or in connection with another lawful activity, such as a knife and gun show. The shows may be sponsored by commercial promoters or organizations of firearms collectors and enthusiasts. Most shows are open to the public for an admission fee. Gun shows provide a forum to display firearms, ammunition, and accessories for trade, purchase, or sale, or they demonstrate the competitive shooting or other sporting uses of firearms.²⁴ The types of firearms offered for sale at gun shows include new and used handguns, semiautomatic assault weapons, shotguns, rifles, and curio or relic firearms.

Gun shows provide a venue for the legal sale and exchange of firearms by federal firearms licensees (FFL) who are licensed by the federal government through ATF to manufacture, import, or deal in firearms. Such shows also are a venue for private sellers who buy and sell firearms to “enhance a personal collection,” or for a “hobby,” or who “sell all or part of a personal collection,” and therefore do not require a federal firearms license.²⁵ Federal laws do not specifically regulate gun shows, although federal firearms laws apply to both FFLs and private sellers at gun shows. For example, FFLs operating at gun shows are required to obtain and keep basic information on firearms transactions and to request federal, and sometimes state, background checks on persons seeking to obtain firearms from them by purchase or exchange.²⁶ Private sellers, unlike FFLs, are under no legal obligation to ask purchasers whether they are legally eligible to buy guns. Furthermore, private sellers, unlike FFLs, are not required to create and keep transaction records or to request background checks on purchasers. This mix of licensed and private firearms sellers – selling guns side by side – makes gun shows a unique forum for gun sales.

Gun shows generate revenue for the promoters through the rental of display tables to vendors and by charging admission to the public. Gun show promoters generally charge vendors from $20 to $145 per table and from $200 to $400 per booth to display their inventories. Public admittance fees for the shows range from $5 to $50. For the largest gun shows, promoters publicize the shows through a variety of media, including publications covering the interests of gun owners and hobbyists, newspapers, radio, television, and the Internet. Gun shows are usually held on weekends and can draw from 2,500 to 15,000 people per 2-day show. Larger gun shows may result in sales of over 1,000 guns in one weekend.

We found no definitive source for the number of gun shows held in the United States annually. Estimates ranged from 2,000 to 5,200 gun shows annually.

ATF’s Firearms Mission

ATF’s mission is to conduct criminal investigations, regulate the firearms and explosives industries, and assist other federal, state, and local law enforcement agencies in preventing terrorism, reducing violent crime, and protecting the public.²⁷ ATF enforces the provisions of federal firearms laws, including the National Firearms Act of 1934 (NFA) and the Gun Control Act of 1968 (GCA).

In carrying out its mission, ATF leads or supports a broad range of firearms investigations, which are divided generally into three categories:

• Investigations of persons who are prohibited by law from possessing firearms;

• Investigations of persons possessing unregistered NFA weapons; and

• Investigations of persons illegally trafficking in firearms.²⁸

When an investigation produces information that illegal firearms-related activity may occur at a gun show, ATF may decide to conduct an operation at the gun show to facilitate the investigation.

ATF also engages in activities at gun shows to educate FFLs and the public about firearms laws. According to ATF statistics, during fiscal year (FY) 2004 through FY 2006, 13 of ATF’s 23 field divisions conducted 62 outreach (educational) programs at gun shows. For example, ATF participates in a joint program with the National Shooting Sports Foundation called, “Don’t Lie for the Other Guy,” which is a national campaign designed to train FFLs to better identify and deter potential straw purchases and to educate the public on the consequences of purchasing a firearm for someone who cannot purchase it legally. Persons prohibited by law from acquiring a gun will sometimes attempt to use a straw purchaser to circumvent the law. The straw purchaser makes a false statement on the ATF Form 4473, Firearms Transaction Record, which asks about the identity of the actual purchaser. Such false statements are punishable by a fine of up to $250,000 and up to 10 years in prison.

In an educational capacity, ATF officials said its personnel attend gun shows to:

• Promote a better understanding of the federal firearms laws as they apply to gun shows and the duty of ATF to enforce those laws,

• Provide gun show owners and promoters with advisories outlining the federal firearms laws as they apply to gun shows and request that they post these advisories in conspicuous locations in the gun show, and

• Staff an information booth to provide gun show patrons with information on federal firearms laws and regulations to promote compliance.

ATF’s Firearms Enforcement Policies

ATF policies, procedures, and oversight mechanisms for conducting firearms-related investigations – including those that may require ATF’s presence at gun shows – are set forth primarily in ATF Order 3310.4B, Firearms Enforcement Program (last amended in 2001 when ATF was part of the Department of Treasury).²⁹ 33"> In that Order, ATF defines its overall policy as the enforcement of the GCA and NFA and assigns priority to investigations that have the greatest potential to prevent crime and violence and to disrupt illegal firearms activity, such as:

• Armed drug traffickers and their organizations and violent criminals actively involved in violent criminal activities,

• Criminal firearms traffickers who are significant firearms sources for other criminals,

• The illicit movement of firearms into and out of the United States, and

• Illegal acquisition of firearms by prohibited persons through the knowing falsification of firearms records or straw purchases.³⁰

Generally, ATF’s approach to dealing with firearms trafficking is determined at the field division level by the Special Agent in Charge (SAC) of the division. (See Figure 1 on the next page for the organizational structure of a typical ATF field division.) SACs and their management teams determine where to focus ATF’s efforts and resources based on the annual planning process the field divisions conduct in conjunction with ATF Headquarters. ATF policy requires that each SAC designate one Assistant SAC (ASAC) in the division to be the Firearms Trafficking Coordinator. According to Order 3310.4B, the Firearms Trafficking Coordinator should continually assess illegal firearms trafficking trends within the division and determine the proper course of action to address the problem.

Figure 1: Structure of a Typical ATF Field Division

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Source: ATF

According to ATF officials, the field divisions assess firearms trafficking trends using intelligence provided by ATF Headquarters, ATF regional and field intelligence organizations, and intelligence gathered locally at the group or field office level. Such local intelligence may come from ATF Industry Operations Investigators who enforce ATF regulations through inspections of FFLs, state and local law enforcement agencies, FFLs, defendants facing trial, confidential informants, or ongoing ATF investigations.

After considering intelligence from a variety of sources, staffing requirements, and available resources, the SAC sets the investigative priorities for the field division. According to ATF policy, the SAC’s decisions should reflect a focus on those areas where the division can achieve the maximum effect on crime in line with overall ATF priorities. This may include ATF investigations at gun shows when intelligence indicates that criminal activity may be occurring.

ATF Order 3310.4B, Chapter K, contains three sections that provide ATF policy and guidelines for conducting investigations at gun shows. ATF policy allows for criminal investigations at gun shows of those persons who are engaged in criminal activity that would result in prohibited persons obtaining firearms. ATF guidelines require that its Special Agents obtain the approval of their Resident Agent in Charge (RAC) or Group Supervisor before conducting surveillance and opening an investigation at a gun show and SAC approval for conducting sensitive enforcement activities at gun shows. According to Chapter K, the SAC is the approving official for closing an investigation after all investigative activity has been concluded at the gun show and for recommending cases for prosecution.

Supplemental Headquarters Guidance for Gun Shows

ATF’s Assistant Director for Field Operations issued a memorandum on January 30, 2006, Reminder of Gun Show Policies and Practices, that supplements and reinforces the provisions for gun show operations found in Chapter K of Order 3310.4B. The memorandum provides direction regarding contact with gun show promoters about gun show operations, the use of recorded surveillance, pre-operations briefings for all assigned personnel, the appropriate location of command posts for gun show operations, retention of information relating to firearms purchasers, the difference between FFLs and private firearms sellers, the appropriate way to use residency checks, and clarification that SACs have discretion to enforce federal firearms laws at gun shows in a manner that addresses specific issues in their area.

Requirements for Planning Investigative Operations at Gun Shows

In addition to Order 3310.4B, Firearms Enforcement Program, ATF has policy governing special agent planning for “significant enforcement activities” at gun shows, such as serving search and arrest warrants, making undercover buys and buy-busts, and conducting special undercover operations. The policy is contained in ATF Order 3210.1A, Operational Planning, which provides detailed requirements and procedures for planning, executing, overseeing, and reporting these types of operations. The guidance requires Special Agents to prepare an operational plan for the enforcement activities listed above, wherever they occur, including gun shows.³¹

The purpose of an operational plan is to avoid risk to both Special Agents and the public by planning the investigative operation prior to its implementation. ATF agents use a specific operational planning form (ATF Form 3210.7) to record information such as the date and time of the operation; personnel involved; description of the specific target, if applicable; objective; and tactical narrative.

The Group Supervisor or RAC who will lead the operation reviews, signs, and dates the operational plan. Plans involving high-risk or sensitive tactics are forwarded to the Division Tactical Advisor for review and comment.³² The SACs and ASACs we interviewed stated that operational plans for investigative operations at gun shows are reviewed by Division Tactical Advisors. While the Division Tactical Advisor does not approve operational plans, the advisor can help identify tactical or other issues that must be resolved before the plans can be executed. The SAC, or the ASAC acting as the SAC’s delegate, has final approval authority for any operation involving significant enforcement activity. Copies of the completed ATF Forms 3210.7 are kept at both the field or group office and the field division office. Figure 2 shows ATF’s process for approving investigative operations at gun shows.

Figure 2: ATF Approval Process for Investigative Operations at Gun Shows

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Source: ATF Orders 3210.1A and 3310.4B

14. The Subcommittee on Crime, Terrorism, and Homeland Security, Committee on the Judiciary, House of Representatives, conducted the hearings on February 15 and 28, 2006. (See Government Printing Office website for a full transcript of the hearings, 109th Congress, Serial No. 109-123; or the U.S. House of Representatives website, 109th Congress for Part I on February 15, 2006, and Part II on February 28, 2006, for the transcripts of the hearings.)

15. According to NRA literature, the NRA is a non-profit group that was originally formed in 1871 for the improvement of its members’ marksmanship. Today, the NRA also defines its purposes as protecting and defending the right of individual citizens to acquire, possess, transport, carry, transfer ownership, and enjoy the right to use arms. The NRA also promotes public safety, conducts training in marksmanship, fosters shooting sports, and promotes hunter safety.

16. ATF defines a straw purchase as “the acquisition of a firearm(s) from an FFL by an individual (the “straw”) done for the purpose of concealing the identity of the true intended receiver of the firearms.” (ATF Order 3310.4B, Firearms Enforcement Program, Chapter K, Section 143(ee).)

17. The following individuals testified at the second hearing: the ATF Assistant Director for Field Operations, a Major in the City of Richmond Police Department, and the Deputy Chief of Police for the Henrico County Division of Police. Henrico County, Virginia, is adjacent to the City of Richmond.

18. Hearing transcript, p. 34, Testimony of Assistant Director for Field Operations, ATF.

19. Hearing transcript, p. 47, Prepared Statement of ATF’s Assistant Director for Field Operations and the memorandum issued by the Assistant Director on January 30, 2006, Reminder of Gun Show Policies and Practices.

20. Hearing transcript, p. 43, ibid.

21. Hearing transcript, p. 55, Testimony of City of Richmond Police Department official.

22. Hearing transcript, p. 55, ibid.

23. The House of Representatives passed H.R. 5092 (House Report 109-672) on September 26, 2006, on a roll call vote of 277-131.

24. ATF Order 3310.4B, Firearms Enforcement Program, Chapter K, Firearms Trafficking, Sections 156, 157, and 158, provides ATF policy for gun show investigations.

25. Both FFLs and private (unlicensed) sellers of firearms obtain the right to sell firearms at gun shows from the Firearm Owners’ Protection Act of 1986, P.L. No. 99-308, 100 Stat. 449 (1986), as amended.

26. Background checks on individuals who purchase firearms from an FFL have been required since passage of the Brady Handgun Violence Prevention Act (Brady Act) in November 1993. The permanent provisions of the Brady Act required the Attorney General to establish the National Instant Criminal Background Check System (NICS). The NICS provides any FFL an immediate contact for information as to whether a prospective purchaser is a “prohibited person” under 18 U.S.C. § 922 (g) or (n) or state law.

    The Federal Bureau of Investigation’s Criminal Justice Information Services Division manages the NICS Section, which provides background checks requested by FFLs in 30 states, 5 U.S. territories, and the District of Columbia. Thirteen states have agencies acting on behalf of the NICS in a full point-of-contact capacity, and eight states are currently sharing responsibility with the NICS Section by acting as partial point-of-contact states for conducting background checks required under the Brady Act.

27. Mission statement in ATF’s Strategic Plan, Fiscal Years 2004-2009.

28. While ATF Special Agents generally take the lead in major firearms trafficking investigations, they also have played a support role. For example, when state or local police officers initiate an investigation of drug or gambling activities and find that firearms play a significant role in supporting those activities, they will frequently seek ATF’s expertise. In those cases in which an investigation leads to a source of illegal firearms in another state, ATF may be asked for support because it can cross state lines in conducting interstate investigations.

29. Under the Homeland Security Act of 2002, ATF transferred from the Department of the Treasury to the Department of Justice on January 24, 2003.

30. Firearms trafficking investigations can include individuals engaged in straw purchasing; illegal dealing by an unlicensed firearms seller; FFLs suspected of selling guns without the required paperwork or background checks or selling guns to prohibited persons; and persons who are prohibited by law from possessing firearms such as felons, illegal aliens, and drug traffickers.

31. SACs, RACs, and Group Supervisors also may require the preparation of an operational plan for any other enforcement activity.

32. According to ATF Order 3210.1A, Operational Planning, p. 7, the Division Tactical Advisor “is a Special Agent assigned to a field division who serves as the principal tactical advisor to the SAC on issues and activities relating to law enforcement operational tactics, readiness, techniques, strategies, equipment, training etc.”