By James V. Grimaldi and Sari Horwitz
Washington Post Staff Writers
Sunday, October 24, 2010; 6:00 AM
Under the law, investigators cannot reveal federal firearms tracing information that shows how often a dealer sells guns that end up seized in crimes. The law effectively shields retailers from lawsuits, academic study and public scrutiny. It also keeps the spotlight off the relationship between rogue gun dealers and the black market in firearms.
Such information used to be available under a simple Freedom of Information Act request. But seven years ago, under pressure from the gun lobby, Congress blacked out the information by passing the so-called Tiahrt amendment, named for Rep. Todd Tiahrt (R-Kan.). The law removed from the public record a government database that traces guns recovered in crimes back to the dealers.
"It was extraordinary, and the most offensive thing you can think of," said Chuck Wexler, director of the Police Executive Research Forum, a nonprofit group for police chiefs. "The tracing data, which is now secret, helped us see the big picture of where guns are coming from."
The amendment also kept the data from being used by cities and interest groups to sue the firearms industry, an avenue of attack modeled after the lawsuits against tobacco companies. "They were trying to drive a stake through the heart of the [gun] industry," said Lawrence Keane, general counsel for the National Shooting Sports Foundation, a trade group for firearms dealers and makers. "It took an act of Congress to stop the litigation."
To break through the federal secrecy imposed by the Tiahrt amendment, The Post obtained hundreds of thousands of state and local police records and did its own tracing and analysis. To develop Maryland statistics, The Post took records of handgun sales from a state database and cross-referenced them against lists of gun serial numbers from police evidence logs in the District and Prince George's County. For Virginia, The Post gathered records of gun traces from a State Police database.
The National Rifle Association and other gun rights activists say releasing the tracing data unfairly tainted honest businesses by demonizing legal gun sales. Tiahrt and defenders of his amendment say it was backed by a national police union and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, which wanted the database to be kept secret to protect undercover officers.
But Bradley A. Buckles, ATF director at the time, said his agency did not ask for the amendment. "It just showed up," he said. "I always assumed the NRA did it."
The NRA said the amendment protects gun owners and manufacturers. The data were being "used to push a political agenda," said Chris W. Cox, executive director of the NRA Institute for Legislative Action. "None of these individual dealers or companies was going to be able to withstand the avalanche of lawsuits and being held literally responsible for crime."
The proposal surprised some members of the House Appropriations Committee when it came up for a vote in July 2003. As a result, it barely passed, 31-30, though the committee was full of NRA supporters such as Rep. Frank R. Wolf (R-Va.), who voted no because he was troubled at being "caught flat-footed and blindsided."
After the vote, Rep. James P. Moran Jr. (D-Va.) objected. "It was not the subject of hearings. It has no support from law enforcement. It has no support from Attorney General [John] Ashcroft. It really serves to protect only the most corrupt gun dealers at the expense of all other legitimate gun dealers."
Tracing began after the Gun Control Act of 1968, which requires licensed dealers to collect certain information when a firearm is sold. A buyer must affirm that he or she is at least 21 and not a felon, a fugitive, an illegal immigrant or mentally ill. Dealers must list the information on Form 4473, with the firearm's serial numbers, to allow police to trace guns.
For three decades, tracing was used mostly to help police catch criminals linked to recovered guns. But in 1995, Professor Glenn L. Pierce of Northeastern University analyzed ATF tracing data and discovered that a tiny fraction of gun dealers - 1 percent - were the original sellers of a majority of the guns seized at crime scenes - 57 percent.
Pierce's analysis "blew everybody away" at the ATF, recalled Joseph R. Vince Jr., then deputy chief of the firearms division. Law enforcement might be able to reduce crime by focusing on a relative handful of gun dealers.
The Clinton administration seized on the findings to encourage police to request a trace on every gun they confiscated. In 2000, Treasury Secretary Lawrence H. Summers, who oversaw the ATF, announced "intensive inspections" of the 1 percent - 1,012 gun stores.
The inspections detected serious problems. Nearly half of the dealers could not account for all of their guns, for a total of 13,271 missing firearms. More than half were out of compliance with record-keeping. And they had made nearly 700 sales to potential traffickers or prohibited people. More than 450 dealers were sanctioned, and 20 were referred for license revocation.
The ATF proposed tougher rules, such as requiring dealers to conduct regular inventories to detect lost or stolen guns. The gun industry opposed the rule, calling it a step toward a national registry of gun ownership.
Lawmakers and groups such as the Brady Center to Prevent Gun Violence used the tracing data to identify the top 10 "bad apple" gun dealers. That angered gun store owners and manufacturers, who argued that selling traced guns does not prove wrongdoing.
The industry turned its anger into action.
For years, the ATF had been releasing tracing data that was at least a year old. A Freedom of Information Act lawsuit pushed for contemporaneous data, but the ATF balked because it felt that the release of real-time trace data could threaten investigations. The standoff landed in the Supreme Court.
In February 2003, before oral arguments, the NRA persuaded Rep. George R. Nethercutt (R-Wash.) to add a provision codifying the time delay into a 544-page omnibus spending bill. In a dramatic move, the high court canceled arguments. The case eventually was tossed out.
Next, the gun lobby moved to take the trace data out of public circulation altogether. In July 2003, Tiahrt introduced his amendment, saying, "I wanted to make sure I was fulfilling the needs of my friends who are firearms dealers."
Tiahrt - who lost in this year's Republican Senate primary - said he also was lobbied by the Fraternal Order of Police. "They believed it would allow criminals to track down who undercover officers were," Tiahrt said. But FOP Executive Director James Pasco Jr. said the union played no role in drafting the amendment. "We were not there before the fact," he said. "We were supportive after the fact."
An appeals court in Chicago ridiculed the undercover argument, saying it was one of several "far-fetched hypothetical scenarios" offered to oppose releasing the data. Although the FOP supported the Tiahrt amendment, police chiefs across the country have opposed it as an impediment to local law enforcement.
In 2007, mayors led by New York's Michael R. Bloomberg attacked the amendment, saying it shielded dealers who broke the law. Armed with trace information from before the ban, New York filed civil suits against more than two dozen dealers in Georgia, Ohio, Pennsylvania, South Carolina and Virginia. The city hired investigators to do undercover stings for illegal gun sales. Twenty-one dealers accepted court monitoring of their businesses.
Tiahrt and the NRA said the lawsuits compromised 18 ATF investigations. However, ATF associate chief counsel Barry Orlow said none was compromised.
During the 2008 campaign, Barack Obama promised to repeal the Tiahrt restrictions on local police access to national trace data. When the administration passed its budget last year, it expanded police access but also tightened restrictions on public disclosure.
Research editor Alice Crites contributed to this report.