October 14, 2020
With the election rapidly approaching, the gun control agenda of former Vice President Joe Biden is clear. As we have covered here before, he has big plans to upend the Second Amendment and punish the heavily-regulated firearm and ammunition industry for the illegal actions of criminals.
There is more to his antigun agenda than banning modern sporting rifles and eliminating the legal online sales of firearms and ammunition.
According to his website, Biden will work to “repeal riders” that get in the way of his agenda. What does this mean? The former U.S. senator wants to get rid of the Tiahrt Amendment, which restricts public access to sensitive, law enforcement-only firearm tracing data. This restriction is supported by Congress, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and law enforcement groups such as the Fraternal Order of Police (FOP) because it secures sensitive tracing information which would jeopardize on-going criminal investigations and put the lives of law enforcement officers, cooperating retailers and witnesses at risk.
Trace Data Explained
When a firearm is recovered at a crime scene or criminal arrest, a police department may forward information to the ATF to track the chain of custody of a firearm through the licensed distribution system to the original retail purchaser. The ATF then sends back the information to the reporting agency so they can use it in a criminal case, if warranted.
Risks to Repeal of Tiahrt are High
Public release of gun trace data outside law enforcement would jeopardize ongoing criminal investigations, putting the lives of law enforcement, witnesses and others at risk. This is why Congress, the ATF and law enforcement, including the nation’s largest police organization, the FOP, agree on the importance of securing this sensitive data. Access to gun trace data should only be available to law enforcement taking part in a bona-fide investigation, and law enforcement already has the access it needs for this purpose. No law enforcement agency has ever been denied access to trace data as part of a criminal investigation.
Misuse of Trace Data
Why should trace data not be made public? Gun control groups try to use these 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 is simply not the case. As the ATF has repeatedly stated, “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.” (Crime Gun Trace Analysis Reports, ATF, 1998).
The danger of releasing trace data is not a hypothetical one. In fact, the pandemic of frivolous lawsuits against gun manufacturers being in the 1990s stirred the need for such a law to protect privacy. These cases misused trace data as a substitute for actual evidence of wrongdoing by members of the industry. These same lawsuits gave rise to the bipartisan Protection of Lawful Commerce in Arms Act that the Biden-Harris campaign wants to repeal.
Consider what happened when the notoriously antigun former New York City Mayor Michael Bloomberg had the New York Police Department (NYPD) inappropriately and unlawfully obtain trace data not for a criminal investigation but for use in preparing a civil lawsuit. He turned the data over to private investigators who conducted so-called sting operations of out-of-state federally licensed firearm retailers. He did so without the knowledge of the ATF or even his own police commissioner. As a result, Bloomberg interfered with as many as 18 ongoing criminal investigations, jeopardizing the lives of law enforcement officers, informants, witnesses and others. In fact, the ATF was forced to pull agents out of the field for their own protection.
The Department of Justice investigated the mayor and his “private eyes” and admonished Mayor Bloomberg for his actions in a letter which was addressed to his criminal justice coordinator John Feinblatt and warned the mayor that he would face “potential legal liabilities” if he did not stop his clandestine investigations immediately. Feinblatt now runs the Bloomberg-funded gun control group Everytown for Gun Safety and pseudo-journalism site, The Trace.
When it authorized further restrictions on the access and use of gun trace data, Congress correctly understood that this information was a crime-fighting tool intended solely for use by law enforcement and that, in the wrong hands, it could be recklessly misused. No one, particularly not members of the firearm industry, wants to see criminals illegally obtain and misuse firearms.
If Biden wins on Election Day and gets his way, releasing these data outside of law enforcement will place the lives of law enforcement and witnesses at risk and punish law-abiding firearm retailers for legal sales of their products.