EXCLUSIVE: Documents Show FBI and ATF Warrantless Surveillance Through Gun Background Checks

EXCLUSIVE: Documents Show FBI and ATF Warrantless Surveillance Through Gun Background Checks
FBI and ATF agents investigate a home connected to the Christmas Day bombing, in Nashville, Tenn., on Dec. 26, 2020. (Mark Humphrey/AP Photo)
Emily Miller

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has been tracking gun owners without a warrant in a coordinated system with the FBI, according to documents exclusively reviewed by The Epoch Times.

Hundreds of pages of documents produced to Gun Owners of America from a Freedom of Information Act (FOIA) lawsuit show ATF agents telling the FBI to daily monitor specific people through the federal background system when they lawfully purchase guns.

The records show dozens of ATF agents requesting the monitoring of law-abiding people through the FBI’s National Instant Criminal Background Check System (NICS) The FBI calls this secret system with the ATF the “NICS Monitoring Services.” This is a manual, daily check of firearm sales to see if a specific person buys a gun for as long as the ATF agent wants.

“They are basically tracking—without a warrant—every gun purchase by these people,” Rob Olson, an attorney for Gun Owners of America (GOA), told The Epoch Times. “There’s no legal process here. At best, this is highly questionable, if not outright unlawful.”

Erik Longnecker, an ATF spokesman, told The Epoch Times via email: “ATF’s investigative techniques are in compliance with federal laws, however we are unable to discuss specific techniques utilized in criminal investigations.”

The FBI did not respond to a request for comment.

No Probable Cause

The NICS system is supposed to be used only to ensure that those prohibited from possessing a firearm are stopped at the point of sale. Yet the ATF and FBI are using it to find fugitives and to track those they suspect of being straw purchasers.

The secret system works by agents emailing the FBI a completed document called “ATF Investigations Information Form for Monitoring Firearms Purchasers in the NICS.” The agents are instructed that they  may request monitoring gun purchases of people “who are under criminal investigation for violations or potential violations of law.”

That means they are monitoring people who buy guns but have not broken the law. The people put in the “NICS Monitoring Services” are never notified and seemingly have no way to appeal being watched without a warrant.

“If they had probable cause, they could seek a warrant from a judge, but they aren’t doing that,” explained Olson. “They are just deciding they have some reason to believe a certain person’s exercise of Second Amendment rights needs to be monitored. And it’s their own system so they make up their own standards.  There doesn’t appear to be any oversight here.”

The records turned over by the ATF are all from 2020 and 2021. The GOA first uncovered in 2021 that the FBI and the ATF coordinated using NICS to monitor the firearm purchases of those they suspect of criminal activity.

Permanent Surveillance

The requestor agent gives the FBI a reason for the request and the length of time they want the suspect monitored for buying a gun, ranging from 30 to 180 days.

However, one of the newly released documents from the GOA’s FOIA that is buried in the hundreds of pages turned over by the ATF shows that there is no limit to how long the FBI will monitor a person’s gun purchases.

“I will monitor your suspect for 180 days, at the end of 180 days I will contact you and ask if you would like to continue for another hundred days and keep repeating this process until such time as you wish the investigation stop,” an FBI official emailed an ATF agent.

Olson said the ATF is misusing the FBI’s background check system so that they can keep gun purchase records that would otherwise be destroyed. Federal law dictates NICS records for completed, approved gun purchases must be deleted from the government database within 24 hours. This is why it takes daily monitoring by the FBI to keep the suspects under watch for buying a gun for as long as the ATF agent wants.   

Minorities Targeted

The NICS monitoring form includes the suspect’s name, date of birth, social security number, gender, race, place of birth, and state of residence.
ATF records obtained by GOA and reviewed by The Epoch Times reveal that the suspects being monitored by the FBI are overwhelmingly minority. For example, out of 19 completed forms in March and April of 2021, only three people were listed as white. The races of the others being watched were black, Hispanic, and Asian. Two of the 19 were women.

Monitoring During Chauvin Verdict

One of the documents from the FOIA shows an ATF agent requesting NICS monitoring for a man attempting to buy a shotgun in Minnesota 30 minutes after the guilty verdict for former Minneapolis Police Officer Derek Chauvin for murdering George Floyd.

The agent did not even claim in the April 20, 2021 email that his suspect could be a straw purchaser. He just said he may use a gun for rioting.

The ATF agent wrote that the request for monitoring the man was due to his “‘behavior and appearance” at the gun store. He wrote that the suspect had his “hood up, acting strange, and making statements of ‘do anything to get the shotgun tonight’ are indicative of influencing an [Federal Firearm Licensee] and obtaining a firearm for nefarious purposes.”

“In my professional observation and review of various law enforcement bulletins stemming from the Chauvin trial, officer-involved shootings, and general unrest during the last year, groups will use various means to incite violence to further ideologies, to include the use of firearms against government entities, persons, and property,” wrote the FBI agent.

It is assumed all monitoring requests in the documents were granted by the FBI because NICS officials email back and forth with the FBI agents until records requests are completed properly.

Suspicion Over Women Buying Shotguns

Another form shows the ATF had the FBI monitoring NICS in 2021 for a black male suspect because he “stated he was purchasing the firearms to provide to female family members during the COVID-19 quarantine.”  The agent wrote that he “found this reasoning to be suspicious” because the man purchased a shotgun and rifle.

The agency’s theory as to why a woman would not use a rifle or shotgun for self-defense is not provided. Of note, Pres. Joe Biden said he owns shotguns and advises his wife, Dr. Jill Biden, to use them for self-defense.

When he was vice president in 2013, Biden was asked at a White House town hall if his efforts to ban guns would make people more vulnerable to criminals.

“If you want to protect yourself, get a double-barrel shotgun,“ Biden replied. ”As I told my wife — we live in an area that’s wooded and somewhat secluded — I said, ‘Jill, if there’s ever a problem, just walk out on the balcony here, walk out, put that double-barrel shotgun and fire two blasts outside the house. I promise you, whoever’s coming in is not going to.’”

The man who the ATF reported was buying for a female relative was also surveilled because he purchased “numerous firearms of the same make/model/caliber over a short time frame.” It’s unclear how the ATF knew of the man’s previous gun purchases. All the other details are hidden behind the large parts of black redacted information on the next pages.

Finances Monitored with Gun Purchases

There is no legal limit on the number or monetary value of guns that can be bought. Nevertheless, a black woman in Arizona was “NICS flag approved” for being a possible straw purchaser because the agent reported her “income for 1st Qtr totals $1,948.67.”  It’s unclear how the ATF knew the woman’s income. “Let’s expedite considering her criminal history and considering 9mm’s are weapons of choice for the cartel,” the special agent emailed NICS on Aug. 6, 2020. Much of the document is redacted.

A black woman in Ohio was put on NICS monitoring for at least 90 days in July 2020 due to her finances. The ATF agent wrote: “Permission for NICS flag, income is [redacted] for the quarter & she has spent over $8500 on firearms between 2/7-7/22“ and referred to an ”attached ROI.” It is unclear how this alone provided sufficient cause to monitor this woman’s gun purchases.

A white man in Texas was put in the system for six months because he is suspected of firearms trafficking for purchasing $40,000 worth of guns with “no verifiable income.” The agent wrote that the type of gun, which is not given, is “known to be firearms commonly trafficked domestically and in furtherance of cartel related activities in Mexico.” There is no minimum income for buying guns.

Illegal ATF Power?

Gilbert Ambler, an attorney who represents the GOA, told The Epoch Times: “The FBI-ATF expansion of the NICS program to maintain records relating to firearm purchasers who have passed the background check is clearly contrary to the intent of the law, which seeks to prevent government agencies from violating the privacy of gun owners through the construction of such a database.”

Ambler said that it is illegal for the FBI and ATF to maintain a database of people who they are “suspicious of” but who pass a background check.

The attorney cited one law that prohibits using NICS to “establish any system for the registration of firearms, firearm owners, or firearm transactions or dispositions, except with respect to persons prohibited from receiving a firearm.”
In addition, Ambler pointed to another federal law that prohibits using NICS “for the registration of firearms, firearm owners, or firearm transactions or dispositions” except for people who are prohibited from receiving a firearm.” Yet, the people in the secret NICS monitoring system are not prohibited from buying guns.

When GOA filed a FOIA request to get information on its “NICS Monitoring Services,” the FBI responded immediately. The ATF, however, did not respond at all. GOA filed a lawsuit for records on any ATF efforts to utilize NICS “for the covert surveillance of individual American citizens, by monitoring their firearm purchases.” The ATF sent 14 files (some with over 100 pages) to GOA on Jan. 9. Five of the files are marked “final,” but the agency’s production of records to GOA is ongoing.

Editor’s Note: This story has been updated with a post-publication comment from ATF.
Emily Miller is an award-winning investigative journalist and author in Washington, D.C. Her newsletter "Emily Posts News" gives readers original, exclusive reporting and insider analysis.
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