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1999 L. Rev. Mich. St. U. Det. C.L. 171 Law
Review of Michigan State University Detroit College of Law Spring
1999 Clueless:
The Misuse of BATF Firearms Tracing Data
Copyright
© 1998 Detroit College
of Law at Michigan State University; David
B. Kopel Table
of Contents
Introduction
In ancient Greece, priests would slaughter a sacrificial animal, and then carefully examine the animal's entrails. The priests and their followers both believed that by "reading entrails," one could forecast the future. This process, fortunately, has become less messy these days: rather than using entrails, our modern fact-inventors use something much cleaner, but no more reliable: trace data from the Bureau of Alcohol, Tobacco and Firearms ("BATF"). Today, powerful leaders also make unsupportable claims based on "information" which was never intended to be used in such a manner. Almost every major firearms control proposal (including "assault weapons" bans, [1] the Brady Act [2], gun purchase rationing, [3] bans on small handguns [4], and eliminating home-based firearms dealers [5]) is touted on the basis of the "scientific" evidence provided by BATF traces. The staff of Representative Charles Schumer (D-N.Y.) earned itself a large amount of favorable publicity in 1997 by using BATF traces to create what Representative Schumer called "the first study that shows conclusively that gun control works." [6] Unfortunately, BATF tracing data was never intended to be used for policy guidance and is unsuitable for that purpose. To build the case for a particular gun law on the basis of BATF traces is to admit that there is no relevant data to support the law. Only a small and unrepresentative fraction of guns which are seized by the police are ever traced by BATF and, for this reason, BATF has repeatedly stated that its trace data cannot be used to draw conclusions about patterns of criminal gun use or acquisition. The BATF's National Tracing Center advises police departments that the trace data "ONLY reflects trends relating to those firearms for which a trace request is submitted and is only as accurate as the information provided by the trace requesters." [7] In contrast to certain other federal programs (such as the FBI's Uniform Crime Reporting system), BATF's tracing program was never designed for sociological data gathering. To the contrary, BATF tracing was designed to provide law enforcement with a quick, easy, low-cost opportunity to trace the history of a particular gun as part of an investigation of a particular crime. But do the BATF traces also provide accurate information about the nature of armed crime in general? [8] Part
One below explores various reasons why gun traces are not good substitutes for
information about actual gun use and sales patterns. Part Two examines one
case in which it is possible to compare BATF trace data with actual police
crime data, namely, the use of "assault weapons" in crime. I.
Traced Guns Are Not a Surrogate for Crime Guns in General
Under federal law, all firearms manufactured or imported into the United States must have a serial number. [9] Firearms manufacturers, wholesalers, and retailers are required to keep precise records of the serial number of each gun they transfer. [10] Thus, if a particular gun is found at a crime scene, the BATF can, using the serial number, trace the chain of custody of the gun from its manufacture to its sale at retail. From there, law enforcement authorities can interview the retail buyer, to attempt to investigate how the gun eventually came into criminal hands (e.g., the gun was stolen from the lawful retail purchaser). A. Only a Small Fraction of Crime Guns Are Traced by BATFIn an average year, there are at least a million violent crimes committed with firearms. [11] Each year, the Federal Bureau of Alcohol, Tobacco and Firearms ("BATF") is asked to trace about 25,000 violent crime guns (plus many more guns associated with possessory offenses), or about less than one gun per forty violent gun crimes. About one in two gun homicides results in a BATF trace, compared to one in fifty gun assaults, and one in a hundred gun robberies. [12] One reason that few violent crime guns are traced is that information about the chain of custody from manufacturer to retail sale is often not necessary for prosecution of state and local gun crimes. [13] After all, a District Attorney bringing an armed robbery case needs to prove that the defendant used a gun, not that the defendant used a gun with a particular pedigree. In some cases, local police may find it faster to conduct a trace themselves than to ask BATF to perform the trace. [14] Further,
some jurisdictions, such as New York, Maryland, California, New Jersey, and
Massachusetts, keep detailed records of all legal ownership of handguns, or of
all guns. [15] These jurisdictions would
logically use their own records first for gun tracing, and would turn to BATF
only when their own data failed. [16] Accordingly, the Congressional Research Service cautions that the "firearms (which the) Bureau of Alcohol, Tobacco and Firearms selected for tracing cannot be considered representative of the larger universe of all firearms used by criminals or any subset of that universe," because "the firearms selected for tracing do not constitute a random sample." As a result, "ATF tracing data could be potentially biased." [19] One reason that BATF traces are not representative is that BATF currently rejects most requests to trace pre-1990 guns, since data for these guns are less readily available. [20] It is easy to see how the pre-1990s exclusion could skew results. In the 1990s, the majority of handgun sales were semiautomatics, while most handgun sales from earlier years were revolvers. [21] A trace sample limited to post-1990 guns would likely overstate the prevalence of semiautomatics relative to revolvers. Similarly, the refusal to trace pre-1990 guns will also skew the types of long guns which are traced. So-called "assault weapons" were big sellers in the 1980s and early 1990s, but were a very small part of the firearms market in most prior decades. [22] Thus, limiting traces to only guns made after 1990 will artificially inflate the percentage of "assault weapons" which are traced. Finally, studies have found that between forty and sixty percent of BATF gun traces fail. [23] This creates a situation similar to a pollster finding that half of the persons polled refuse to answer certain questions. Elementary statistics theory requires that a data gatherer not ignore the "non-response bias." [24] Thus, the subset of guns for which traces are successful is even less likely to resemble crime guns in general. B. Most Gun Traces Are Not Associated with Violent CrimeViolent crimes account for only one-seventh of BATF traces. [25] At least half of BATF traces are for possession offenses. [26] To the extent that any generalizations can be drawn from BATF trace data, these generalizations are about gun owners whose gun possession violated some kind of ordinance or statute, but who did not use their gun for illegal violence. In
1992, anti-gun lobbyists touted BATF trace data from the first nine months of
1991 to argue that as much as forty-one percent of New York City
"crime" guns came from Virginia. [27]
But of the New York City firearms traced to Virginia during the first nine
months of 1991, only thirty- two guns (or one-sixth of the traces) were used
in a violent crime. [28] The rest were
associated with technical violations of New York City's arduous handgun
licensing scheme, or other non-violent offenses. [29]
Forty-seven percent of the violations involved weapons possession crimes
(including simple possession of an unlicensed gun in the home); thirty-five
percent involved other non-violent offenses (such as possessing a handgun and
a gram of cocaine in the same apartment). [30] In New York City, obtaining a handgun license is very difficult. Although New York law requires the police to act on license applications within six months, delays of nearly a year are routine-even for crime witnesses who are being threatened by criminals out on bail. [33] In addition, it is nearly impossible for an applicant to get a license to carry a handgun, unless the applicant is named "Donald Trump," in which case the carry permit will be granted in a few days. Because obtaining a New York City handgun permit is very difficult for unwealthy people who cannot afford lawyers, many citizens obtain handguns illegally; they adopt the adage that "it is better to be judged by twelve than to be carried by six." They would rather face the risk of prosecution for an unlicensed handgun than face the risk of living in New York City without a handgun. Much the same story can be told for Washington, D.C., where crime is even worse than New York City, where the police are notoriously ineffective, and where handgun purchases and possession are entirely illegal. [34] Thus,
to the extent that any conclusions could be drawn from BATF trace data, the
conclusions show that guns from other states are used to evade a prohibition
(Washington, D.C.) or near-prohibition (New York City) on handgun ownership by
non-elites. The trace data, by themselves, do not show that other states are
the main source of guns for violent criminals in New York City or Washington
D.C., because five-sixths of traces do not involve violent crime. Of course no one would even bother to attempt to trace a gun from which the serial number had been removed (sometimes the serial number can be removed through advanced forensics, but the process is difficult, and used very rarely). This is one more reason why the traced guns are generally not similar to non-traced guns. C. Traces Do Not Reveal How or Why a Gun Was Moved InterstateGun traces show the history of the gun from its manufacture, purchase by a wholesaler, sale to a federally-licensed gun dealer, and then retail sale. Except when special investigators are assigned to perform field interviews, traces do not, and cannot, trace the history of the gun beyond retail sale. Hence, a trace may discover that a gun was manufactured in Connecticut, purchased by a Florida wholesaler, and sold to a customer at a Houston gun store. If police confiscate the gun in New York City, the trace does not tell us whether: .
The gun was purchased in Texas by a gun-runner and then sold to a New York
City criminal; The widely-publicized study by Representative Charles Schumer's staff presumes that the first possibility is the only possibility, since it attributes all interstate gun movement to gun-running, never mentioning other, more common possibilities. [37] The BATF data which Schumer used does not specify how the guns moved between states. The tracing reports conducted by BATF do not even investigate how a gun moved from its state of retail sale to the state where the gun was found. For example, the 1991 BATF report on gun traces from New York City to Virginia cautioned, "Project Lead does not attempt to determine if a Virginia gun found in New York had been stolen from a Virginian, and then transported to New York." [38] Contrary to the Schumer assumption that interstate gun movement must be the result of organized gun-running, a BATF study of interstate gun transport found "that the majority of firearm movement from (s)tates is occurring on an individual basis. That is to say that an individual will acquire a firearm in another (s)tate through the actual purchase by relatives and friends and then transport the firearm back." [39] Self-protection is the primary motive for such transfers, the BATF reported. [40] Of course, an intra-family transaction might not necessarily be legal; federal law makes it illegal for persons other than licensed dealers to sell handguns to persons from another state. And criminals, like ordinary citizens, do buy guns for self-defense. Nevertheless, the BATF data make it clear that interstate gun transfers are usually small-scale and involve guns sold through private transfers, not from retail outlets. [41] Thus, the picture painted by gun control advocates such as Representative Schumer-a picture of large volume interstate transfers of guns purchased directly from licensed retail dealers-is contrary to the known data. The difference between the Schumer scenario and the BATF facts has major policy implications. If the Schumer scenario were true, it would support his proposals for even greater federal regulation of retail gun sales. Federal regulation not only would make sense because licensed dealers, wanting to keep their license, would obey federal gun laws, but also because licensed dealers are (supposedly) the main source of interstate guns. But
in truth, the data shows just the opposite. Interstate transfers are primarily
private transfers between family and friends. There is no realistic
possibility that these individual transfers can be controlled by federal
statute. To the extent that the interstate transfers involve transfers between
two family members, both of whom are criminals, it is especially unlikely that
federal statutes would have any preventive effect. If the private interstate
transfer is somehow discovered by the police, current federal laws already
provide severe mandatory sentences for illegal interstate gun sales and for
the transfer of firearms to persons with any felony conviction or with
misdemeanor domestic violence convictions. [42] II.
"Assault Weapons": Police Data Show BATF Traces to Overestimate
Criminal Use by 1000%
"To hell with statistical theory," some people might say. "Whatever the objections raised by skeptics, we still think that gun traces provide good data about gun crime and gun sales in general, even if the figures might be a little rough here and there." If one accepts this argument, then one policy conclusion becomes inescapable: one-handgun-per-month laws are a failure and should be repealed. The laws specifying that citizens may purchase only one handgun per month are based on the premise that purchases of multiple handguns from gun stores are a major source of supply for interstate gun-runners. According to the Schumer study, two of the three states that supplied the most guns to New York were Virginia and South Carolina, the only states in the nation with one-gun-a-month laws at the time of the study. [43] But dropping one-gun-a-month laws solely because of the Schumer study (or because of any other analysis of trace statistics) would be a mistake. We know that trace statistics can result in errors of more than 1000%, and therefore, trace statistics are so far removed from real-world experience to be of no value in determining crime policy. (Again, to point out this fact is not to denigrate the BATF tracing program; the program was designed to solve individual crimes, not to gather sociological data). One of the most notable real-world instances in which tracing data was used to "prove" facts which were wholly contrary to reality was in regard to so-called "assault weapons." "Assault weapon" is a marketing term, whose meaning varies depending on whether the user of the term is a member of the gun industry or a gun control advocate. The term generally refers to firearms that have a military-style appearance. Appearance notwithstanding, "assault weapons"are functionally indistinguishable from normal-looking guns: they fire only one bullet with each press of the trigger and the bullets they fire are intermediate-sized and less powerful than the bullets from big game rifles. But starting in 1989, Handgun Control, Inc., and other anti-gun organizations, gained national attention by claiming that assault weapons were the "weapon of choice" among criminals. [44] The political gun ban campaign was significantly bolstered by an article on BATF traces-a report that, considerably later, was shown to be grossly misleading. In May 1989, two reporters from the Cox newspaper chain conducted a study of BATF firearms traces. [45] The reporters found that for some crimes, assault weapons were involved in approximately ten percent of the traces. [46] Since "assault weapons" constitute only about one percent of the total firearms stock (the reporters asserted), the ten percent trace figure indicated that "assault weapons" were disproportionately involved in gun crime. "An assault gun is twenty times more likely to be used in crime than a conventional firearm," Cox newspapers claimed. [47] Politicians who wanted to ban guns took up the line. [48] Police data, however, showed the ten percent figure to be false. [49] The Cox report gave trace percentages for both the nation as a whole (ten percent) and for selected major cities. [50] The percentage of "assault weapons" reported by Cox newspapers, based on the BATF traces, was ten percent for Chicago, nineteen percent for Los Angeles, eleven percent for New York City, and thirteen percent for Washington, D.C. [51] In each of those cities, police departments conducted complete counts of all guns that had been seized (not just the guns for which the police department requested a BATF trace).[52] According to the actual police department counts of crime guns in each city, the percentage of "assault weapons" were only three percent for Chicago, one percent for Los Angeles, one percent for New York City, and zero percent for Washington, D.C. [53] Thus, when the BATF trace sample was compared with the comprehensive police gun seizure data, BATF traces over- stated the percentage of assault weapons used in crime by over 1000% for Los Angeles, New York, and Washington.
"Assault
weapons" were a high percentage of BATF gun traces, but a small
percentage of total crime guns. There are several reasons why "assault weapons" are more likely to be selected for a trace request. [54] Many "assault weapons" have an unusual appearance, which might raise curiosity (and a trace request) compared to an "old-fashioned" gun, such as a Smith & Wesson .38 Special. [55] The publicity surrounding "assault weapons" also may have increased police interest in these weapons, increasing the likelihood that a trace would be requested. [56] As the Congressional Research Service noted, "a law enforcement officer may initiate a trace request for any reason." [57] "If . . . law enforcement offices in certain regions have determined that certain types of firearms (such as military-style semiautomatics that accept large capacity magazines) should be traced because they are thought to be used by dangerous offenders, the data in the tracing system will reflect those specific concerns." [58] Polling data show that high-ranking police administrators, such as big- city police chiefs, may be far more supportive of gun control in general, and assault weapon prohibition in particular, than are mid-ranking or street-level law enforcement officers. [59] As a result, for the reasons explained by the Congressional Research Service, heightened policy administration concern about "assault weapons" could result in a disproportionate percentage of such guns being submitted to BATF for tracing. In addition, almost all "assault weapons" were first sold at retail after 1968. Before 1968, gun retailers who sold only to in-state customers did not need a federal firearms license. [60] Also, before 1968, federal law did not require firearms dealers to maintain registration records of retail sales. [61] Thus, successful traces are more likely to be conducted on guns made after 1968-a category which includes a higher percentage of the total stock of assault weapons than of the total stock of, for example, bolt-action rifles. While the Cox study was in progress, BATF had a policy of not accepting trace requests for guns made before the early 1980s. This policy certainly would cause an increase in the percent of traces involving "assault weapons." It should be noted that the discrepancy between the BATF traces and the actual crime gun seizures was not confined to the four major cities discussed above. Researchers have now obtained comprehensive crime gun data for many cities based on actual inventories of firearms seized by the police, in not one of the cities does the percentage of "assault weapons" seized even remotely approach the BATF trace figure of ten percent. The highest figure was four percent; one percent (or less) was much more common. [62] Accordingly, it can only be concluded that BATF firearm trace requests are not an accurate mirror of actual firearm use in crime. To
accompany the temporary federal prohibition on new "assault
weapons," [63] Congress in 1994, ordered
the Attorney General to study whether the ban was changing patterns in
"assault weapon" use by criminals. When asked if data existed to
allow such a study, the FBI's Uniform Crime Reports (UCR) Section replied,
"The UCR Section knows of no existing data to provide a basis to address
the question." [64] Stated less
delicately, the FBI's statistical experts do not believe that gun traces
provide reliable information about the general use of guns in crime. Lobbyists
and politicians who attempt to use trace data for this purpose should explain
why they think that they are right and the FBI is wrong. Conclusion
To advocates of restrictive gun laws, BATF traces are like psychoanalyst's inkblots: the viewer always finds in them exactly what he wants to see. Thus, BATF traces are used to create allegedly "scientific" data to promote the banning of small and inexpensive guns, [65] to demonize certain large handguns, [66] to prove that the Brady Act is working, [67] to prove that the federal assault weapons ban is working, [68] to prove that more controls are needed on "assault weapons," [69] to make the case for eliminating firearms dealer licenses for persons who operate small businesses from their home, [70] and to prove that gun rationing laws work. [71] The (mis)use of BATF tracing reports by gun control lobbyists has often worked. The federal "assault weapons" ban, the Virginia gun rationing law, and the federal elimination of home-based businesses from the ranks of licensed firearms dealers all became law with the significant help of claims made about BATF traces. Proposals for further controls, such as federal licensing of gun owners, federal gun purchase rationing, and state and federal bans on small handguns are all predicated on the allegedly scientific information derived from BATF traces. The English philosopher Jeremy Bentham once derided natural rights as "nonsense on stilts." [72] Whatever one thinks about natural rights, Bentham's phrase is an apt description of attempted use of BATF traces to support gun laws. In the 19th century, practitioners of the "science" of phrenology conducted extensive measurements of people's skulls and used the data to produce all sorts of findings, all of which had the appearance of hard science, but none of which turned out to have any validity. For example, persons with certain shapes of skulls, dubbed "low-brow," were said to be intellectually inferior. The link between BATF gun traces and real-world use of violent crime guns is just as weak as the link between skull shapes and individual intelligence. BATF traces and the measurement of skulls both generate a large amount of data, but that data is not scientific evidence upon which criminal justice policy can be based. Phrenology, unfortunately, fits the prejudices of its era, since it helped "prove" that Blacks and Eastern Europeans were intellectually inferior to people from northwest Europe. Likewise, BATF gun trace studies fit the prejudices of our own time, since they are designed almost exclusively to "prove" the need for more gun laws. Unlike phrenological measurements, BATF gun traces do have a valid use: tracing the history of a particular gun used in a particular crime, up to the point of retail sale. The trace data should be released from their involuntary enlistment in the cause of pseudoscientific support for restrictive firearms legislation. Endnotes
[28].
See Memorandum from the BATF on Firearm Stastical Information For Calendar
Year 1992 to Special Agent in Charge of the New York Field Division (Oct. 22,
1992). (hereinafter Firearms Statistical Information) (on file with the
author). One reason that traces from Virginia were so high was that BATF was
conducting a special investigation into firearms trafficking from Virginia to
New York. Thus, when a Virginia gun store would call BATF to report a
suspicious sale possibly headed for New York, BATF would advise the store to
go ahead with the sale. Later, when the gun-runners were arrested in New York,
the gun would be traced back to Virginia. See BATF Agent Irvin W. Moran,
Affidavit before U.S. Magistrate David G. Lowe (Aug. 25, 1992); Letter from
John W. Magaw, Director, BATF, to Sen. Olympia J. Snowe (Feb. 23, 1996). In
ordinary circumstances, the guns never would have been sold; if they had been
sold, they would not have been specially selected for tracing. |
