Estimated reading time: 6 minutes
By Larry Keane
President Joe Biden campaigned on repealing the so-called “Tiahrt rider,” enacted in 2003, that protects from public disclosure law enforcement sensitive trace data contained within the ATF’s National Tracing Center’s (NTC) Firearm Tracing System (FTS). This is the database of firearms that have been recovered and traced by law enforcement in connection with a bona fide criminal investigation. Importantly, the Tiahrt rider allows law enforcement to have access to and share trace information with others in law enforcement. It merely prevents the public disclosure of this sensitive data outside of law enforcement. Unsurprisingly, law enforcement, including the Fraternal Order of Police (FOP), support this law that protects the integrity of criminal investigations and the lives of law enforcement and witnesses. Fortunately, President Biden has been unsuccessful in repealing this life-saving measure. ATF supported the law until recently.
Despite the law’s clear and unambiguous language that information from the FTS is not subject to a Freedom of Information Act (FOIA) request or any civil process, e.g., a subpoena, guess what the Biden administration just did?
Yes, ATF released data from the FTS in response to FOIAs from USA Today and the gun control group Brady United. Specifically, ATF released – for the first time ever – the names of federally licensed retailers who are part of ATF’s Demand Letter 2 program. To be placed on this program a retailer must have received 25 traces within a year that were originally lawfully sold less than three years before being traced (what ATF calls “time-to-crime”). The release of this list disclosed data – who received a trace, how many traces and the time to crime – that comes exclusively from the FTS. ATF’s release of this data is an obvious and transparent violation of federal law.
The results were predictable. It led to a splash of “name-and-shame” media stories all across the country with screaming headlines insinuating the retailers mentioned in the story were (or) are corrupt and are the “top sellers of crime guns.” Brady United orchestrated an NBC Nightly News story and issued a press release posted the list on their website, as did USA Today.
Why Trace Data is Protected
Gun control groups try to use the data to argue a trace is a signal that a law-abiding firearm retailer did something wrong if a firearm they legally sold after a background check ended up being traced for any reason. That’s a stretch. Even the ATF has said as much in their 1998 Crime Gun Trace Analysis Reports when they wrote, “The appearance of [a licensed dealer] or a first unlicensed purchaser of record in association with a crime gun or in association with multiple crime guns in no way suggests that either the federal firearms licensed dealer (FFL) or the first purchaser has committed criminal acts. Rather, such information may provide a starting point for further and more detailed investigation.”
History has already proven what happens when politicians abuse this protected trace data to score cheap political points. Former New York City Mayor Michael Bloomberg unlawfully co-opted protected firearm trace data from the New York City Police to prepare a lawsuit against the firearm industry. Bloomberg ordered private investigators to conduct “sting” operations of out-of-state firearm retailers – without the knowledge of ATF or even his own police commissioner.
The result was disastrous. Bloomberg interfered with as many as 18 ongoing criminal investigations, jeopardizing the lives of law enforcement officers, informants, witnesses and others. The ATF was forced to pull agents out of the field for their own protection. The Department of Justice (DOJ) investigated the actions of the mayor’s private investigators and admonished the city against engaging in similar conduct because it could “interrupt or jeopardize ongoing criminal investigations.”
Bloomberg’s own police commissioner, Ray Kelly, urged the DOJ to oppose the public disclosure of trace data sought by then-Chicago Mayor Richard Daley for use in civil litigation against members of the firearm industry precisely because it would “compromise critical law enforcement investigations and endanger the lives of police officers and members of the public.”
This is why Congress, DOJ, ATF and law enforcement, including the nation’s largest police organization, the FOP, all agree on the importance of protecting this sensitive data. Access to gun crime trace data is – and should only be – available to law enforcement in connection with a bona fide criminal investigation.
‘Name-and-Shame’
This is also why NSSF moved to intervene in a lawsuit by the City of Baltimore to force the ATF to release trace data. Gun trace data was willingly – and potentially illegally – turned over to one news agency and now, that information is being exploited to wrongfully blame firearm businesses for the crimes committed by others. Remember, the ATF said that’s not the case at all. In their Gun Trace Crime Reports of the Youth Gun Crime Interdiction Initiative, ATF officials wrote, “A crime gun trace alone does not mean that an FFL or firearm purchaser has committed an unlawful act. Crime gun trace information is used in combination with other investigative facts in regulatory and criminal enforcement.”
This is politically expedient for the Biden administration. It allows them to conduct a “name-and-shame” campaign against the firearm industry that he’s already using a “whole-of-government” approach to attack.
The ATF’s release of the firearm trace data named over 1,300 firearm businesses. NSSF told media that the release of the information is inappropriate and counterproductive. The truth is that firearm retailers are the front line of defense for ensuring guns are not illegally obtained. Firearm retailers often provide tips to ATF when there is a suspected attempt at an illegal “straw” purchase.
Releasing the data suggests to the public that these firearm retailers are somehow responsible for the criminal misuse of a firearm. Even ATF knows this is just not true. However, the obvious implication is that these firearm businesses are responsible for guns recovered at crime scenes. That overbroad swath wrongfully targets these businesses and even members of Congress. U.S. Sen. Ted Budd (R-N.C.) and U.S. Rep. Andrew Clyde (R-Ga.) are firearm business owners.
Congress needs to get involved. Oversight hearings should be called to find out exactly who authorized the release of protected firearm trace data and who didn’t account for the federal laws that prevents the release of the information outside of law enforcement. More than that, Congress should seek to rein in rogue elements in the Executive Branch who willingly violate federal law to weaponize protected information to score cheap political points.
Larry Keane is Senior Vice President of Government and Public Affairs and General Counsel for the National Shooting Sports Foundation, the firearms industry trade association.
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Until there are consequences for government operatives for violating the constitution or citizens constitutional rights this will continually get worse. I guess that’s how our good ol American Just-Us system and banana republic works. And Trump wants to indemnify our corrupt so called law enforcement.
Point 1, should be filing suit against ATF for unlawful disclosure. What management level authorized the release. That person should be facing personnel action. Like being fired. ATF should be facing fines in the multimillion dollar range.
Good Ole COMMIES doing their part trying to WRECK and DESTROY the SECOND AMENDMENT RIGHTS of Legal Law Abiding American Citizens.
Another reason to abolish the obsolete ATF.
Release the data on Barry Soetoro’s gunny walking operations and the arming of the Sinaloa drug cartel.
That’s not how banana republics and democracies work.