The following article was written and originally posted during Todd Tiahrt's 2010 run for the U.S. Senate.
The intent of the original article was to point out the blatant disregard for our nation's law enforcement, judicial system, and private citizens' ability to prosecute a criminal case, thus offering insight as to why voters should look carefully at Tiahrt's record prior to casting their vote.
Due to recent national news on gun control, this article now appears to be even timelier.
It is my hope that reporters and citizens who care about the truth, will gain a deeper perspective of what laws and legislation have led us to the position we currently find ourselves in as a country with respect to gun laws.
Tiahrt Amendment Tied to Six Police Officers Being Shot
Jan. 6, U.S. Rep. Gwen Moore (D-Milwaukee) sent a letter to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) demanding answers about the agency's regulation of Badger Guns in West Milwaukee, WI.
On Jan. 3, the Milwaukee Journal Sentinel reported an ongoing investigation of six police officers who were shot.
According to the watchdog group http://www.jsonline.com/watchdog/watchdogreports/80518462.html of the Journal Sentinel, the police investigators are being blocked at every corner in trying to recover trace evidence, and license inspection reports from the ATF regarding the licensed gun dealer. Badger Guns, or its predecessor, Badger Outdoors, sold guns used to wound six officers in Milwaukee over the past two years.
The case has shed light on legislation that was specifically created to ban such ATF reports from being released.
U.S. Rep. Todd Tiahrt (R-KS) created limits inserted in an ATF spending bill in 2003. The bill, sponsored by Tiahrt was appropriately named, the Tiahrt Amendment.
Two police officers were shot in the head in June with a gun purchased from Badger Guns. The newspaper requested all license inspection records from the ATF in September 2007 under The Freedom of Information Act. After numerous requests, the ATF provided 117 pages, http://www.jsonline.com/news/milwaukee/80512802.html many of them heavily redacted and others with blacked out information, rendering them impossible to read.
The Tiarht Amendment required ATF to redact most of what appears on inspection documents, Milwaukee agency officials said.
Tiahrt declined an interview http://www.jsonline.com/watchdog/watchdogreports/80870142.html about how his amendment has jeopardized law enforcement in a Milwaukee case involving the shooting of six police officers.
"Congress needs to pick a side and say, 'Are we on the side of law enforcement and the victims of crime or are we going to be on the side of irresponsible gun dealers who sell to criminals?' Right now Congress is on their side," Flynn said. "I can't imagine there is another industry that is so protected by Congress," Milwaukee Police Chief Edward Flynn said.
Flynn said Tiahrt's reason was an "elaborate fig leaf" placing his officers at greater risk of being shot.
"We are law enforcement and we have had a tough time getting this data," Flynn said. "I shouldn't have to find out through the shootings of six officers who is selling the bad guys the guns."
On the issue of gun stores' compliance history, Tiahrt's press secretary, Wendy Knox, wrote in an e-mail to the Journal Sentinel that law enforcement and prosecutors have access to those compliance records but the public should not have access.
"There is no reason this information is needed in the public realm," she wrote.
Crime gun trace data provided powerful evidence of the gun industry's complicity in fueling the illegal market, showing that thousands of guns move rapidly from a small number of licensed gun dealers into the illegal market.
In July 2003, the Brady Center released a list of the "Ten Worst Bad Apple Gun Dealers in America." These were the ten dealers with the highest number of crime gun traces during the period 1989-1996, the most recent years the crime gun trace database was made available to the public under FOIA.
Of those ten worst gun dealers in America Badger Outdoors, Inc. West Milwaukee, WI was listed as the number one worst dealer with 554 guns traced to crime. The number of crime guns today sold by Badger is much higher.
History of what inspired the Tiarht Amendment was revealed in an April 2006 report released by the national non-profit Brady Center http://www.bradycenter.org/xshare/pdf/reports/giw.pdf who works to reduce gun violence through education, research, and legal advocacy.
The regulations governing ATF were dramatically altered when the National Rifle Association (NRA) was threatened in a Chicago case in March 2000. The City of Chicago made a request to ATF under the Freedom of Information Act (FOIA) seeking records on firearms traces and multiple sales both nationwide and in Chicago from 1992 to the present. The City sought the information to gain insight on local and nationwide crime gun trafficking patterns and to support a lawsuit it had filed against the gun industry in November of 1998.
The suit had charged various gun manufacturers, distributors, and suburban Chicago dealers with creating a public nuisance by marketing firearms to City residents where their possession would be unlawful.
Before bringing suit, Chicago law enforcement ran a "sting" of a dozen suburban Chicago dealers and found that they were willing to sell guns openly to straw buyers who were seeking to buy guns for criminals in Chicago.
ATF produced part of the data requested, but withheld dealer names, purchaser names, serial numbers of the guns recovered, and the recovery locations.
Redactions made the data useless for Chicago's investigation purposes. Even though Chicago needed the data to assist law enforcement, and even though the City did not request any records that had been coded by ATF as "highly sensitive," ATF still argued that it was allowed to block the release of data because it "could reasonably interfere with enforcement proceedings."
Chicago was forced to file suit against ATF in June 2000 to require ATF to turn over all the documents requested. The case lasted over five years, included an appeal to the United States Supreme Court, and three separate rulings by the United States Court of Appeals for the Seventh Circuit. In all of the rulings, the trial court and the appeals court rejected ATF's arguments that releasing the records would hinder law enforcement efforts.
In a 2002 ruling the Seventh Circuit found that ATF's arguments were "based solely on speculation:" "ATF has provided us with only farfetched hypothetical scenarios; without a more substantial, realistic risk of interference, we cannot allow ATF to rely on this FOIA exemption to withhold these requested records."
In particular, the Court found that the data "reveals nothing about any potential or ongoing investigation," and "it is highly improbable that any revelation of this information could endanger an investigation."
The Court of Appeals also found that there was no privacy interest in the requested records and that, as had been shown repeatedly, "there is strong public policy in facilitating the analysis of national patterns of gun trafficking."
The Court ruled that the ATF was required to produce all the information requested.
ATF appealed the Seventh Circuit's ruling to the United States Supreme Court and the Court granted certiorari (a writ issued by a higher court to obtain records on a case from a lower court).
While the appeal to the Supreme Court was pending, Congress stepped in at the urging of the gun lobby.
Rep. Ernest Istook Jr. (R-OK), a repeated recipient of NRA political contributions, inserted into ATF's 2003 appropriations bill a provision designed to prohibit ATF from using any appropriated funds "to take any action based upon any provision [of FOIA]" for requests from the trace database and multiple sale database.
Because of its length, 544 pages for the Consolidated Appropriations Act of 2003, members of Congress could not possibly know the details of every line of an appropriations statute. Unlike other legislation, riders to appropriations bills do not regularly undergo scrutiny in congressional committees or have full floor debate. Appropriations bills are often acted on quickly, which provides little opportunity for true deliberation.
This allows major changes in policy without public input or legislative accountability.
The appropriations process is a perfect vehicle for passing special interest legislation that would not survive as a stand-alone bill. Gun lobby allies in Congress have historically used the appropriations process as an opportunity to sneak in amendments restricting ATF's enforcement activities. They used this technique to prevent ATF from obtaining records from gun dealers, or maintaining criminal background check records beyond 24 hours. Even though riders in appropriations bills can change or be removed in subsequent fiscal years, often they become entrenched in legislation and survive year after year.
Rather than attempting to amend the FOIA, the gun lobby chose the easier route of quietly slipping in a rider without having to explain its actions. The gun lobby could get around the FOIA statute, which demands public disclosure, without any committee hearings or reports and without the public noticing that the worst actors in the gun industry were being aided at the expense of the public's right to know.
The 2003 Istook rider was written to allow ATF to continue giving out only the trace and multiple sale data that it was previously willing to disclose under FOIA. The rider was intended to bar disclosure of the names of gun dealers that had sold guns traced to crime, as well as other information about those crime guns. The purpose was to weaken the City of Chicago's suit.
Following enactment of the 2003 rider, the Supreme Court remanded the Chicago FOIA case back to the Seventh Circuit to determine the effect of the rider on the Chicago FOIA request.
But before the appeals court was able to rule on the effect of the 2003 legislation, Congress acted again.
In July 2003, Tiahrt, a long-time ally of the NRA, added an amendment to the 2004 ATF appropriations bill.
The Tiahrt Amendment was drafted to prevent ATF from spending any money to release any crime gun trace data or multiple sales data requested under FOIA, even if ATF previously had disclosed that type of data. Even though ATF had always made some portion of the crime gun trace data available to the public, as shown by the numerous public uses of the data, the 2004 amendment barred ATF from further releasing trace or multiple sales data under FOIA.
Tiahrt's colleagues on the House Appropriations Subcommittee on Commerce, Justice, and State expressed "surprise" at the way the amendment was being offered. The chair of the Subcommittee, Rep. Frank Wolf, objected to the amendment, saying he had not had time to review it. Yet, Tiahrt refused to withdraw the amendment and won passage on a 31 to 30 vote in the House Appropriations Committee.
The Washington Post reported that, "before the vote, Tiahrt assured colleagues the NRA had reviewed the language."
Tiahrt was quoted as saying, "I wanted to make sure I was fulfilling the needs of my friends who are firearms dealers. NRA officials were helpful in making sure I had my bases covered."
The legislation was indeed an attempt to help the NRA and the gun lobby, by not only thwarting Chicago's case, but by preventing anyone from obtaining trace data through FOIA.
The threat of more public reports, based on analysis of trace data, linking the gun industry to supply of the illegal market of guns, was too great.
Despite the Tiahrt Amendment, Chicago's lawsuit survived, at least temporarily.
In September 2004, the Seventh Circuit considered the Tiahrt language and ruled that while the rider precluded the use of appropriated funds to disclose trace and multiple sale data to Chicago, it had not substantively changed the FOIA standards for disclosure. Since Chicago had offered to pay the costs associated with disclosure, the Court of Appeals again held that ATF must provide the City access to the databases.
Just two months after the court's September 2004 ruling, the gun lobby tried again.
Tiahrt inserted another rider, this time in ATF's 2005 appropriations bill. Congress expanded the scope of the amendment in the Consolidated Appropriations Act of 2005, by making it impossible to get the crime gun trace data even if a court has ordered its production.
This rider stated, "All such data shall be immune from legal process and shall not be subject to subpoena or other discovery in any civil action in a State or Federal court." This prevents crime gun trace data and multiple sales data from being obtained under FOIA, or through a court subpoena. The provision also expanded to be retroactive. In addition, whereas the two previous riders barred the use of appropriated funds by ATF to release trace or multiple sale data in response to FOIA requests, the language in the 2005 version arguably reached any use of appropriated funds by ATF to disclose the data even in its own public reports.
As a result of the 2005 legislation, the Seventh Circuit reheard Chicago's FOIA case yet again, in light of the 2005 rider, and found in favor of ATF. The Court found nothing could be done to require ATF to turn over the data that the public was entitled.
The 2005 appropriations legislation not only prevents ATF from acting on FOIA requests, but also prevents the public from turning to the courts for help.
The Court wrote, "Prior to the rider, a requesting party could obtain the information through ATF or the courts. In the 2005 rider, Congress blocked both avenues of relief by stripping ATF and the courts of the ability to act on the public's requests, effectively exempting the information from disclosure."
The City, and the public, never obtained the data they were entitled to under FOIA.
The gun lobby went even further in the 2006 ATF funding bill. This version of the Tiahrt Amendment still includes the restriction on ATF releasing any crime gun trace data to anyone, even under court subpoena, but now also attempts to prevent crime gun trace data from being used in court or relied on by plaintiffs in lawsuits against the gun industry.
This language would bar a court from admitting trace data and multiple sale data as evidence in a civil proceeding, even if a court has determined that they meet the generally applicable rules of evidence regarding admissibility in that court. The legislation purports to bar expert witnesses from relying on the data to formulate and support their expert opinions in civil proceedings, even if a court has determined that the expert's reliance on the data conforms to the generally applicable evidentiary requirements for expert testimony.
The 2006 appropriations rider attempts to forbid use of crime gun trace and multiple sale data in civil actions, even if the data is evidence in the case and necessary to ensure a fair hearing.
The legislation is an extraordinary attempt by Congress to intervene in judicial proceedings for the purpose of "stacking the deck" in favor of gun industry defendants, and it may well be unconstitutional.
The gun industry was threatened not only by Chicago's suit, but by other federal court cases.
The expanded 2006 legislation was clearly an attempt to ensure that no other court has the benefit of evidence that is so damaging to the gun industry.
Rep. Lamar Smith (R-TX) in effort to make the Tiahrt Amendment permanent introduced a bill in Congress on March 16, 2006. H.R. 5005, misleadingly named "The Firearms Corrections and Improvements Act."
Among other provisions weakening federal enforcement of gun laws, it would prohibit the disclosure of crime gun trace and multiple sale information "to any entity" except to a law enforcement agency or prosecutor in connection with a bona fide criminal investigation or prosecution. There is, of course, no doubt that Rep. Smith is carrying the NRA's water - an email sent to Congressional members directed them to call the NRA's Federal Affairs office, rather than Rep. Smith's office, with questions about the legislation.
The Tiahrt Amendment, and proposed legislation to make its provisions permanent, have the purpose and effect of legislating ignorance about crime and guns.
Since the 2005 Tiahrt Amendment, ATF has been prohibited from releasing any more crime gun trace data to the public. No longer can ATF issue its own reports based on the trace data or reports discussing the data.
The Tiahrt Amendment has had a chilling effect on ATF's activities.
According to the Bureau, it is prevented from releasing even aggregate information about crime gun traces to the public in the form of raw trace data or reports. According to a spokesperson for ATF, the agency is forbidden from "releasing to the public 'any information derived from tracing of firearms.'"
If the Tiahrt Amendment had been law in 1996, ATF could not have issued reports under President Bill Clinton's Youth Crime Gun Interdiction Initiative that provided individual cities, their law enforcement authorities, and the general public, valuable information about the guns traced to crime in their communities.
The Tiahrt Amendment also prevents ATF from disclosing crime gun trace data to gun manufacturers and distributors to enable them to better ensure that their retailers use responsible business practices, despite the fact that ATF publicly announced that it would provide trace data to gun manufacturers to enable them "to police the distribution of the firearms they sell."
Since ATF can no longer furnish trace data to the industry, gun makers finally have an excuse for their failure to use the data offered them, as ATF had advised in 2000, "to build sounder and safer businesses."
Since 2004, the Tiahrt Amendment has even required ATF disavow its conclusions about the value of crime gun trace data. Although the Amendment permits limited disclosure of trace and multiple sale information to law enforcement agencies in connection with bona fide criminal investigations, a separate part of the appropriations legislation requires that in any release of trace data, ATF must include language "that would make it clear that trace data cannot be used to draw broad conclusions about firearms-related crime."
Not only does the Tiahrt Amendment severely limit ATF's use and disclosure of trace data, it actually commands ATF to make statements about the data the Bureau knows to be untrue.
This particularly Orwellian feature of the Tiahrt language underscores the gun lobby's determination to ensure that the public no longer knows the truth about guns and crime.
The more the public understands about crime guns, the more it also understands the integral role of reckless licensed dealers in supplying the illegal market and the need for tighter federal regulation of gun dealers and gun sales to curb the flow of guns into criminal hands. For the gun lobby, the public had started to "know too much." The Tiahrt Amendment solved that problem for the NRA and the gun industry. The truth about guns and crime no longer threatens the gun industry with accountability for its conduct and the NRA can continue to market the mythology that gun laws can do nothing to keep guns out of criminal hands.
The gun industry knows who the high-trace dealers are, but has refused to stop selling guns to them or force reform. Gun industry spokespeople continuously claim that the concentration of crime guns originating from a relatively few dealers may indicate only that they sell many guns. ATF's own investigations disproved their argument.
Rather than taking the gun industry to task for its barefaced misrepresentation of trace data, under the Bush Administration, ATF instead helped defend the industry, blocking from release under the FOIA portions of its own Report to the Secretary of the Treasury on Firearms Initiatives disproving the industry's claims. It also issued a press release supporting the industry that directly contradicted the findings in ATF's own report, while at the same time turning over the document, in un-redacted form, to the gun industry itself. ATF also stopped releasing to the public any data or reports discussing the sources of illegal guns, helping the gun industry cover up its participation in supplying the illegal gun market.
The gun lobby repeatedly claims that any regulation of gun ownership will eventually lead to the complete confiscation of all firearms. "Registration leads to confiscation," is the NRA's mantra. Under the NRA's theory, if any governmental records were kept on firearm sales, it would inevitably lead to registration of firearms, which would lead to the confiscation of all firearms by "jack-booted government thugs" raiding people's homes. Typical NRA advertisements hammer home the fanciful link between keeping track of firearm sales in order to prevent and solve gun crimes and the creation of a "total police state:" "We all know their Master Plan. First, outlaw all handguns. Then register all rifles and shotguns. Finally, confiscate and destroy all rifles and shotguns. Make no mistake, these anti-gun and anti-hunting forces are working feverishly for the day when they can gather up your rifles, handguns, and shotguns and ship them off to gun-melting furnaces." "Gun prohibition is the inevitable harbinger of oppression."
No federal gun law has ever prevented law-abiding citizens from buying a legal firearm, and state registration laws have not led to confiscation.
The gun lobby claims that disclosure of crime gun trace data threatens to reveal undercover and other law enforcement operations against gun traffickers and corrupt dealers.
On the contrary, by barring ATF from disclosing crime gun trace and multiple sale data to law enforcement agencies, the bill adversely affects law enforcement's ability to help ATF to combat gun trafficking and the reckless dealers who aid and abet it.
In the late 1980s and early 1990s, crime gun trace data also alerted the public to the growing threat posed by military-style semiautomatic assault weapons in the hands of criminals. In 1989, Cox Newspapers reporters James Stewart and Andrew Alexander, assisted by former ATF official Robert Barnes, conducted a computer analysis of 43,000 crime gun trace requests for the years 1987-1988. They found that assault weapons were far more likely to be traced to crime than conventional firearms and that the use of assault weapons in crime had increased more than 78% from 1987 to 1988. This study, following closely the use of an assault rifle to kill five children and wound 30 others on a Stockton, California schoolyard, ignited a national debate about the easy availability of these military-style guns.
Following enactment of the Federal Assault Weapons Act in 1994, the Department of Justice (DOJ) National Institute of Justice conducted a study, mandated by Congress, of the short-term impact of the statute. The study found that the ban had "clear short-term effects on the gun market, leading to weapons becoming less accessible to criminals in the U.S.
The impact of the assault weapon ban ten years after its enactment was evaluated and found that crime gun traces for assault weapons banned dropped 66 percent.
Congress failed to re-authorize the assault weapons ban before it expired in September 2004.
The use of crime gun trace data by scholars, advocacy groups, Members of Congress, the press, and ATF itself, has revolutionized our understanding of the illegal gun market and how it is supplied. For this reason, its release to the public has been a substantial threat to the NRA and the gun industry.
Crime gun trace data directly challenges the gun lobby's claim that gun laws can have no effect on criminal access to guns because criminals either steal guns from legal owners or obtain them on the "black market." Trace data shows that the "black market" itself is largely the product of the continuous and massive diversion of guns from licensed dealers. Crime gun trace data answers the question the gun lobby does not want asked, where do illegal guns come from?
Why are gun manufacturers and distributors continuing to use these high-risk dealers to sell their guns?
The answer appears obvious. Every gun sold to a gun trafficker is as profitable as a gun sold to a law-abiding citizen. The industry has a vested financial interest in the continued flow of guns from its licensed dealers into the criminal market. Perhaps most threatening to the gun industry is the risk that its choice to use high-risk dealers, as revealed by crime gun trace analysis, may expose it to legal liability to those injured by guns trafficked into the illegal market.
The NRA and the gun industry responded to the threat in two ways. First, for six years they lobbied Congress for special interest legislation exempting the gun industry from civil liability rules applicable to every other industry. This effort finally succeeded when President George W. Bush signed into law the misnamed "Protection of Lawful Commerce in Arms Act (CAA)" in October 2005. Second, they pushed to shut down public access to crime gun trace data. The gun lobby knew that the proposed CAA would limit, but not completely preclude, liability actions against the industry. It also knew that the threat to its interests posed by public access to the trace data was not limited to potential legal liability. The trace data exposed the gun industry as part of the problem of illegal guns. This was too much truth for the gun lobby to bear.
As of the end of the Clinton Administration, it was obvious that the continued release of crime gun trace data by ATF was a clear and present danger to the NRA and the gun industry. The NRA had boasted that if George W. Bush became President, it would be "working out of their [White House] office."
On gun policy, the Bush Administration consistently did the gun lobby's bidding.
New York City Mayor Michael Bloomberg testified, in opposition of H.R. 5005 and its codification of the Tiahrt language.
"I would not expect that I would need to remind Congress of the horrific consequences that this country, and particularly New York City, suffered as a result of the federal government's failure to share information among law enforcement agencies, and to work together to 'connect the dots' in order to establish patterns of criminality and threats of danger."
The argument that the Tiahrt Amendment is needed to protect law enforcement operations is entirely false.
"I was just thinking of the safety of police," Tiahrt told the Denver Post. "Some of these undercover officers have been involved in transactions that could be disclosed by the release of trace data." Tiahrt was unable to name a single instance when an officer's safety had been compromised by a previous release of ATF gun trace data. For many years ATF has disclosed crime gun trace information to the public, while redacting any data it felt could compromise law enforcement investigations.
The Tiahrt Amendment is a far broader prohibition of disclosure than necessary to protect law enforcement investigations. It would bar ATF itself from referring to aggregate trace data in its own reports providing the public, along with government and law enforcement officials, valuable information about guns and crime. There is no evidence that the reports issued by ATF containing crime gun trace data have compromised a single law enforcement investigation. Likewise, there is no evidence that the studies and reports based on ATF crime gun trace data previously published by scholars, advocacy groups, the press, and government agencies have revealed confidential ATF sources or adversely affected law enforcement activities.
To the contrary, these studies and reports have highlighted law enforcement techniques that can work to stop gun trafficking.
The Law Enforcement Steering Committee (LESC) composed of the Federal Law Enforcement Officers Association, Major Cities Chiefs, and the International Brotherhood of Police Officers, expressed concerns about legislative restrictions on ATF's disclosure of trace data. In a letter to the Senate concerning provisions in the 2004 appropriations bill, the LESC stated, its members "are concerned by a provision included in the omnibus bill which will prohibit the Bureau of Alcohol, Tobacco, Firearms and Explosives from publicly disclosing or sharing gun trace data with local law enforcement."
By passing the NRA-drafted legislation, Congress effectively prevented itself from gaining access to data needed to draft effective legislation and perform its responsibility for oversight of federal gun enforcement efforts.
Under the current law, ATF will not even be able to disclose crime gun trace data pursuant to a request from Congress.
The Government Accountability Office will not be allowed to review crime gun trace data to evaluate the effectiveness of ATF's National Trace Center or the effectiveness of ATF's enforcement activities.
Under the Tiahrt Amendment, ATF is prevented from disclosing valuable crime gun data to the press, advocacy organizations, and scholars who are studying the problem of guns and crime.
Trace data has been used in studies showing, (1) the illegal market is largely supplied by the rapid diversion of guns from a relatively few licensed gun dealers. (2) Illegal guns in states with strong gun laws largely originate in states with weak laws, while illegal guns in states with weak laws come from in-state dealers. (3) Laws regulating the legal market can help stem the flow of guns into the illegal market; and (4) certain kinds of guns are disproportionately associated with criminal activity.
Noted academic researchers voiced horror with the effect of the Tiahrt Amendment on scientific research, one professor commented: "If you want to advance science and understanding about a problem, you use the scientific peer review process, not a political or legal filter. It [the Tiahrt Amendment] is a hindrance to science and the formation of good policy."
Another professor, discussing how valuable crime gun trace data has been, said the effect of the Tiahrt Amendment is "consciously making ourselves stupid."
After an unprecedented explosion of new learning from the use of trace data by ATF and others during the Clinton years, the release of crime gun trace information from ATF quickly slowed to a trickle following President Bush's Inauguration. No longer did ATF release data and analyses showing the close connection between the gun industry and the illegal gun market. Instead the Bureau now publicly excuses high-trace gun dealers by asserting that they may simply have high sales volume, while withholding from the public (but not the gun industry) a crucial internal report showing that gun dealers with the highest numbers of crime gun traces do not have the highest sales volume and are frequent violators of federal gun laws.
As the gun lobby, and particularly the gun industry, realized the danger to its interests from release of crime gun trace data, it turned to its friends in Congress for help.
Starting in 2003, each year the gun lobby quietly attached riders to ATF appropriations legislation - first through Rep. Istook and then through Rep. Tiahrt - placing greater and greater limits on disclosure of trace and multiple sale data.