Earlier this year, as the violence on the Mexican border had crescendoed into national headlines, the state of California contacted federal firearms officials with a seemingly innocuous request: Would the federal government lend state law enforcers details on the thousands of crime guns seized in Mexico and traced to California — information that might identify patterns of trafficking worth investigation?
Citing a five-year-old federal law that limits the sharing of crime gun trace data, the Bureau of Alcohol, Tobacco, Firearms and Explosives refused.
“As a result of this restriction,” California’s Department of Justice wrote in a subsequent letter to the head of ATF in Washington, “California law enforcement agencies … have been unable to identify the California firearm dealers whose firearms are finding their way into Mexico’s drug war.”
The Tiahrt Amendment had struck again.
That law — named after its original sponsor, Rep. Todd Tiahrt (R-Kans.) — places sharp restrictions on the ability of ATF to share crime gun trace data that could compromise criminal investigations. Yet, as the California case indicates, it can also prevent law enforcers from reviewing the same information. Critics, including many law enforcement groups, say that the lack of access cripples the power of enforcement officers to pinpoint gun trafficking patterns in efforts to curb the flow of firearms to criminal markets, both national and international.
“We can’t connect the dots to see what we’re dealing with,” said Scott Knight, chief of police in Chaska, Minn., who also chairs the Firearms Committee of the International Association of Chiefs of Police.
One culprit, according to critics, is language in the Tiahrt law that allows law enforcers to tap ATF trace data only in connection with a specific criminal investigation. Broader data sweeps, such as California’s request, don’t make the cut. A similar appeal from the City of Jersey City in 2007 yielded the same response from ATF — our hands, the agency said, are tied by Tiahrt.
Backed by President Obama, Democrats this year are aiming to change that with a proposal eliminating the stipulation that requests for trace data be connected to a specific investigation. If adopted, the change would grant law enforcers access to the entire ATF trace database. The proposal, attached to a bill to fund the Department of Justice next year, passed the House last week.
Gun control advocates are cheering that movement, but are also wondering why Democrats haven’t taken on other elements of the Tiahrt Amendment as well. The Democrats’ proposal, for example, keeps in place the prohibition on public disclosure, which will largely prevent reporters, researchers and advocates from obtaining ATF trace data — information once available through the Freedom of Information Act.
Dennis Henigan, vice president for law and policy at the Brady Center to Prevent Gun Violence, wondered if “public,” which isn’t defined in the proposal language, will extend to include policymakers. If the police chief can’t inform the town council of local gun trafficking trends, he said, “that’s still a ridiculous limitation on law enforcement’s ability to actually use the data.”
Researchers are expressing similar concerns. Daniel Webster, co-director of the Center for Gun Policy and Research at Johns Hopkins University, said the Democrats’ proposal “makes it easier for law enforcement authorities to get ATF data, but simultaneously makes it tougher for researchers to get access.”
The debate is emblematic of the difficulty facing the young Obama administration as it wades into the thorny world of gun reform. On the campaign trail last year, Obama had vowed to repeal the Tiahrt language altogether, and Attorney General Eric Holder has reiterated that wish this year. But the proposal put forth in the White House budget, which mirrors the language now working its way through Congress, represents a nibble rather than a bite. Indeed, Tiahrt’s office has interpreted the administration’s proposal as an endorsement of the larger provision.
“Congressman Tiahrt,” spokeswoman Wendy Knox wrote in an email, “is glad the Obama administration has embraced the Tiahrt trace data amendment.”
That would be news to gun-reform advocates and other Tiahrt critics, who are quick to blast other elements of the amendment that the Democrats’ recent proposal ignores. The Tiahrt law, for example, requires that the FBI destroy background-check records within 24 hours of a gun purchase. By contrast, a Clinton-era gun law allowed government officials to retain gun-purchase records, including the name of the buyer, for up to 90 days in case the purchase was found to have been approved by mistake.
Tiahrt also prohibits ATF from requiring gun dealers to take annual inventory of their stock to determine if guns have been stolen or misplaced.
Supporters of the amendment, including the country’s largest group of sworn law enforcement officers, argue that the Tiahrt restrictions are necessary for keeping police investigations under wraps. “Civilian investigators mucking around without knowledge of what’s going on in the criminal investigation is a very dangerous thing,” said Jim Pasco, executive director of the Fraternal Order of Police, which boasts a membership of 347,000 active-duty police officers.
But the amendment has confounded gun-reform and community advocates, who contend the restrictions are designed to protect gun dealers — even suspect gun dealers — from investigations and lawsuits that might result if trace data were more publicly available. Indeed, after his controversial amendment passed a key committee vote in 2003, Tiahrt was quoted by The Washington Post as saying, “I wanted to make sure I was fulfilling the needs of my friends who are firearms dealers.” The National Rifle Associatiion, he added, was “helpful in making sure I had my bases covered.”
The NRA did not return requests for comment, but a number government reports have fueled the critics’ argument for reform. A report issued last week by the Government Accountability Office, for example, found that, of the guns seized by Mexican authorities in the last five years and traced by ATF, 87 percent originated in the United States.
Another example: In 1998, ATF was able to determine that 57 percent of the crime guns traced that year originated from just 1.2 percent — or 1,020 of the estimated 83,200 — licensed gun sellers. By identifying patterns like that, policymakers and law enforcers can identify potential “bad apple” dealers, who might be feeding criminal markets.
Another indicator crunched by ATF — the so-called time-to-crime measure — reveals time-lapse trends between gun sales and criminal seizures. Guns flowing quickly from legal to illegal status are more likely trafficked by the last licensed seller than those used in a crime many years later.
“This kind of data is very threatening to the gun industry,” said Henigan, author of “Lethal Logic, Exploding the Myths that Paralyze American Gun Policy.”
But public release of such ATF data is a long time coming. The comprehensive report unveiling some of these figures, released by ATF in February 2000, introduced itself as “the first in an annual series.” No similar report has been published since.