Taking aim at Tiahrt.

• Author: Tang, Angela Jacqueline
• Position: Gun trafficking

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND A. Gun Trafficking Patterns: A Few "Bad Apples" ... and Worse Guns B. ATF Gun Trace System 1. Primary Purpose: Tracing Guns 2. Secondary Purpose: Identifying Gun Traffickers C. Municipal Lawsuits Against the Gun Industry D. PLCAA E. Litigating the PLCAA: City of New York v. A-1 Jewelry & Pawn II. EVOLUTION OF THE TIAHRT AMENDMENT A. 2003 B. 2004 C. 2005 D. 2006 E. 2007 F. 2008 G. Trend and Outlook III. THE TIAHRT AMENDMENT SHOULD BE ABANDONED A. The Tiahrt Amendment Is Redudant of the PLCAA: What Congress Giveth, Congress Taketh Away B. The Tiahrt Amendment Does Not Protect Law Enforcement 1. How Does Wholesale Trace Data Release Actually Endanger Law Enforcement? 2. Trace Data Release Does Not "Hinder[] Law Enforcement". 3. Law Enforcement Privilege Makes the Tiahrt Amendment Unnecessary C. Law Enforcement la Best Protected by Sensible Data Release 1. Sensible Data Release: Subject to Confidentiality Order 2. Sensible Data Release: Redact Sensitive Fields CONCLUSION AND OUTLOOK HOW ABANDONING THE TIAHRT AMENDMENT ALLOWS AMERICA'S CITIES TO REFORM "BAD APPLE" (1) GUN SELLERS THROUGH PUBLIC NUISANCE LITIGATION

"Every gun has a story to tell." (2)

--William G. McMahon, Special Agent in Charge, New York Field Office, Bureau of Alcohol, Tobacco, Firearms and Explosives.

INTRODUCTION

Officer Russell Timoshenko of the New York City Police Department was only twenty-three years old when he was shot twice, in the face and neck, by an illegal .45-caliber Llama pistol. (3) Timoshenko and his partner, Officer Herman Yan, had reason to be suspicious of the BMW SUV (4) they pulled over at 2:30 a.m. on July 9, 2007, because the BMW's license plate belonged to a Mitsubishi. (5) The BMW's darkly tinted windows (6) did not allow Timoshenko and Yan to see the three armed criminals inside the vehicle. (7)

Without warning, two of the vehicle's passengers shot at the officers as they approached the vehicle. (8) A bulletproof vest saved Yan's life. (9) Timoshenko was declared brain dead. (10) After five days on life support, Officer Timoshenko died. (11)

As convicted felons, (12) Timoshenko's killers were not permitted to own or carry firearms. (13) Yet they had three pistols: a TEC-9, the .45-caliber Llama that killed Timoshenko, and a 9-millimeter Hi-Point used to shoot Yan. (14)

Within hours (15) of the shooting, investigators used the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Gun Trace System database to determine the origin of the three illegal guns. (16) The guns were originally sold out of state. (17) The Llama used to kill Timoshenko had already been used in a "drive-by" shooting. (18)

The twice-murderous Llama led a typical gun life cycle, in which traffickers purchase guns in localities with relatively lax gun control to illegally resell them in localities with strict gun control. (19) Guns recovered in New York are trafficked largely from Southern states along Interstate 95, mostly from Virginia. (20) The Llama was originally purchased in Hampton, Virginia (21) from a dealer who sold guns from his home and later lost his license to sell firearms. (22) R&B Guns was notorious for selling guns without following federal and state laws. (23)

This pattern is also typical in gun trafficking. Although most gun dealers, known as Federal Firearms Licensees (FFLs), obey state and federal gun sale laws, the small percentage of violators sell the vast majority of all crime guns. (24) In fact, "[j]ust 1.2 percent of dealers ... accounted for over 57 percent of the crime guns traced to current dealers in 1998." (25) That statistic is even more glaring in light of the fact that "85 percent of licensed dealers had no crime gun traces in 1998." (26)

This Note begins with the premise that the amount of gun violence in America's cities is unacceptable and that "bad apple" gun dealers fuel the violence by illegally selling guns to anyone willing to pay street value. In Section I, this Note details the background information needed to understand how access to trace data is crucial to the success of municipal public nuisance suits. "Bad apple" gun dealers funnel more guns into the illegal secondary market than any other source, and action against "bad apple" gun dealers can therefore take guns out of criminals' hands. (27)

Ideally, federal legislators could attack the illegal gun problem by mandating stricter oversight of FFLs and by giving ATF sufficient authority and resources to quickly identify and shut down repeat violators of firearms sale laws. (28) The reality, however, is that the legislative process is frustrated by powerful special interest groups, such as the National Rifle Association (NRA), that vehemently oppose gun control measures. (29) Cities are left on their own to rid their streets of illegal guns. Strict state and local gun laws are the first line of defense, but they pose little impediment for criminals willing to flout the laws. (30)

Unable to force legislative change, the cities have turned to litigation, filing public nuisance claims against "bad apple" gun sellers. Section I of this Note describes the current state of municipal public nuisance litigation efforts and will demonstrate that trace data is crucial to the success of public nuisance claims. This Section goes on to describe how the Protection of Lawful Commerce in Arms Act (PLCAA), (31) which requires dismissal of all but a few excepted classes of gun lawsuits, has made it more difficult for cities to bring public nuisance suits. The PLCAA has forced cities to change their strategies in bringing public nuisance claims. One such example of the new strategy lies in the actions that the City of New York took in investigating out-of-state gun sellers targeted in City of New York v. A-1 Jewelry & Pawn. (32)

Section II of this Note details how Congress has appended a rider, known as the Tiahrt Amendment, into appropriations acts funding ATF every year since 2003. This Amendment is widely interpreted to prohibit release of gun trace data to civil litigants.

In Section III, this Note urges Congress to abandon the Tiahrt Amendment because it was not passed into law for the reason asserted--protection of law enforcement--but rather, was passed solely to interfere with gun industry litigation. To support this contention, Section III details how Congress has continually strengthened and modified the Amendment in response to court decisions allowing civil litigants to use trace data in gun industry litigation.

In Section IV, this Note argues that Congress should abandon the Tiahrt Amendment because it is redundant of the PLCAA and because the Amendment does not protect law enforcement. Rather, the stated goal of protecting law enforcement can be better served by sensible data release procedures that protect sensitive data but also allow for limited use of the data in litigation.

Finally, this Note discusses the intersection of the Tiahrt Amendment with the PLCAA, and how municipal litigants can continue to pursue suits in light of these two roadblocks. In so doing, the Note posits that the combination of facts and pleadings in City of New York (33) has the best chance of success in the litigation battle against '"Dad apple" gun sellers.

1. BACKGROUND

   1. Gun Trafficking Patterns: A Few "Bad Apples" ... and Worse Guns

      "Bad apple" gun sellers exploit weaknesses in federal gun sale laws to divert legal guns to the illegal secondary gun market. The Gun Control Act of 1968 (GCA) requires manufacturers, distributors, and retailers to maintain records of gun transactions from the manufacturer, to the distributor, to the first retail store, and ultimately, to the first retail purchaser. (34) After the first retail sale, however, the Act places no restrictions on the manner of sale and requires no record of the sale. (35) Thus, there is a high potential for abuse by FFLs and first purchasers to funnel legally purchased guns into the illegal secondary market. After all, every illegal (36) gun began as a legal gun. (37) Legal guns enter the illegal secondary market through a variety of channels, including corrupt FFLs, straw purchasers, gun shows, unlicensed sellers, and firearms theft. (38) This Note focuses on FFLs and straw purchasers, as corrupt FFLs that flout gun sale laws provide more firearms to the secondary market than any other source. (39) These gun dealers knowingly sell to "prohibited persons," make "false entries" regarding sales, and falsely report illegally sold guns as lost or stolen. (40) They also knowingly sell to unlicensed dealers who will resell to prohibited persons. (41) "Bad apple" dealers exist hand-in-hand with straw purchasers. Straw purchasers are persons who are legally permitted to purchase guns, but who purchase guns, ostensibly for themselves, only immediately to sell them to prohibited purchasers. (42) Straw purchases are illegal under federal law and under many states' laws. (43)

      Once a formerly legal gun reaches the secondary market, prohibited carriers (44) are able to arm themselves. Cities like New York City and Washington, D.C. passed strict gun control schemes, (45) but gun traffickers undermine these schemes by buying guns outside the city or state, then selling them illegally inside the city. (46) This illegal gun market provided Officer Timoshenko's killers with deadly weapons.

   2. ATF Gun Trace System

      1. Primary Purpose: Tracing Guns

         Law enforcement officials can use the ATF Gun Trace System database to identify the distribution path and first buyer of a firearm. Gun dealers must maintain records of firearms sales. (47) The information in these records becomes incorporated into the Trace System database when a gun is traced. When a crime gun is found, the law enforcement agency submits the following information to ATF: "serial number, firearm type, manufacturer ... and caliber;" the circumstances and location where the firearm was found; the crime in which the gun...