Someone at the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) believes it is easier – or more politically convenient – to roll over to gun control activists and the U.S. Court of Appeals for the Ninth Circuit than it is to defend a federal law protecting firearm trace data.
For the second time in less than a year, the ATF chose to ignore the Tiahrt Amendment – the federal law that prohibits the disclosure of sensitive firearm trace data to anyone outside of law enforcement circles for use in a bona fide investigation – and instead released it to the public. This time, the ATF handed over the trace data to The Trace, the mouthpiece for the activist gun control group Everytown for Gun Safety. Just six months ago, ATF handed over firearm trace data to USA Today through a Freedom of Information Act (FOIA) request – despite the fact that firearm trace data isn’t subject to FOIA requests.
The Trace, hardly a bastion of objective journalism and once described as an “agitprop outlet” – chose not to challenge a Ninth Circuit ruling that the agency had to hand over protected firearm trace data to Stop US Arms to Mexico, a nonprofit in Oakland, Calif. That was after John Londsay-Poland, the group’s founder, requested the data for U.S.-made firearms recovered at crime scenes in Mexico, Guatemala, Honduras and El Salvador, broken down by the U.S. states, counties and ZIP codes from where they were purchased.
ATF denied the request, initially at least. That’s because the Tiahrt Amendment states that the ATF cannot release that information outside of law enforcement circles. Lindsay-Poland sued and the Ninth Circuit agreed that the information must be released. However, less than a month later, the U.S. Court of Appeals for the Second Circuit ruled that firearm trace data was protected and could not be released.
That’s a circuit court split. The ATF – which reports to the Department of Justice – should have recognized that there is disagreement between the circuit courts, setting up a question for the U.S. Supreme Court to consider. The Ninth Circuit had 78.6 percent of the cases challenged from that court overturned. In 2022, 11 of the 14 cases that were challenged were overturned. Percentage-wise, the Ninth Circuit doesn’t lead in cases overturned. The Fourth, Fifth, Tenth and D.C. Circuit along with state courts led those percentages, but had far fewer cases reviewed, with three, three, eight, two, one and five, respectively.
That track record indicates that the ATF and DOJ might have had a fighting chance to argue that the Ninth Circuit erred in their judgement to order the release of the protected firearm trace data. They didn’t do that. Instead – ATF handed it over.
There’s no secret, however, as to why gun control groups like Everytown, their mouthpiece The Trace, or Stop US Arms to Mexico and others are working to defeat the Tiahrt Amendment. Mexico is suing several U.S. firearm manufacturers for $10 billion in damages, claiming that members of the firearm industry are responsible for the narco-terrorist drug cartels’ criminal misuse in Mexico of illegally smuggled U.S.-made firearms. That case was petitioned to the U.S. Supreme Court, but that’s not stopping gun control activists. They continue their campaign to blame the firearm industry for Mexican government corruption, failed “hugs, not bullets” strategies and drug cartels running with impunity.
Mexico smeared U.S. manufacturers at a United Nations forum, sidestepping their own government’s culpability in enabling narco-terrorists to run amok within their borders. Jonathan Lowy, a former top lawyer for the gun control group Brady, and Elizabeth Burke, also a former Brady lawyer, registered as foreign agents of Mexico under their new venture Global Action on Gun Violence. Brady, of course, was a backer of Mexico’s lawsuit against U.S. firearm manufacturers.
This all begs the question of why the Biden administration is allowing firearm trace data to be released in violation of federal law without taking it all the way to the U.S. Supreme Court, like they did when Chicago demanded nationwide trace data to support its lawsuit against the industry. The case was pending before the Supreme Court when Congress enacted the Tiahrt Amendment. After all, even the ATF has said that the appearance of a firearm retailer in a trace report “in no way suggests” wrongdoing on the part of that retailer.
The ATF’s Volume Three of the National Firearms Commerce and Trafficking Assessment found just 136 cases of illegal firearm trafficking tied to a federal firearms licensee (FFL) over a five year period. That’s just 1.6 percent of all 9,700 cases. To put that into more specific perspective, there were 134,516 federal firearms licensees (FFLs) at the end of 2021. That equates to just 0.1 percent of all FFLs being implicated in allegedly illegal firearm trafficking before President Joe Biden instituted his whole-of-government crackdown on the firearm industry.
It starts with President Biden himself. Four years ago, he stood on the debate stage with the other Democratic candidates for The White House and said “Our enemy is the gun manufacturers, not the NRA, the gun manufacturers.” Since then, he’s used nearly every government lever to attack the industry in a “whole of government” campaign against the only industry that provides the means to exercise a Constitutionally-protected right.
Then there’s Vice President Kamala Harris. She’s the one President Biden put in charge of securing the southern U.S. border, which is still wide open. She’s also the one he put in charge of heading up his gun control agenda. She’s assisted there by the newly-established White House Office of Gun Violence Prevention, which is staffed by former Everytown lobbyist Robert Wilcox.
Of course, there’s U.S. Attorney General Merrick Garland, who was nominated to the U.S. Supreme Court by President Barack Obama but his nomination was never considered by the U.S. Senate. As a judge on the U.S. Court of Appeals for the District of Columbia Circuit, he voted against gun rights in each of the four cases he had the opportunity to weigh in on.
There’s also ATF Director Steven Dettelbach. There are still open questions from U.S. Sen. Chuck Grassley (R-Iowa) as to why the DOJ and ATF, among 16 law enforcement agencies, pulled the plug on Operation Thor, a secretive project that was designed to disrupt known firearm trafficking networks. It was working, until the ATF pulled the plug – at the same time Mexico brought their claims against U.S. firearm manufacturers.
Former ATF Acting Director Michael Sullivan recently wrote of the importance of safeguarding firearm trace data and not using this information as a political football.
“If the Tiahrt Amendment were repealed, it could seriously undermine, if not eviscerate, the critically important investigations ATF special agents and local law enforcement are building to bring illegal firearm traffickers to justice,” Sullivan wrote. “However, it’s becoming clearer that some within the administration see this as a calculated opportunity to set the conditions for a ‘name-and-shame’ effort to smear firearm retailers and manufacturers, at the expense of ATF’s important and well-executed mission, which includes relationships with those in the industry who also want to keep firearms out of the hands of prohibited persons.”
He added, “The ATF has long held that firearm trace data isn’t to be used as a political tool.”
Except now. ATF isn’t interested in protecting their own firearm trace data. That’s apparent. If officials in ATF or the DOJ were trying to stay above politics, they wouldn’t have handed over the information twice in less than six months so easily.
Comments