Taking Aim at TIAHRT: How Abandoning the TIAHRT Amendment Allows America's Cities to Reform 'Bad Apple' Gun Sellers through Public Nuisance Litigation

When police find a gun at a crime scene, they contact the Bureau of Alcohol, Tobacco, Firearms and Explosives National Tracing Center to determine the sales history of that gun. To request the gun trace, the police must send information on the circumstances under which the gun was found. This information, as well as the sales history of that gun, then becomes part of the ATF Gun Trace System Database. Since police began tracing 100 percent of recovered crime guns in the mid-1990s, the Gun Trace System Database has become a powerful tool for identifying illegal gun trafficking patterns. One such pattern is that interstate gun traffickers buy guns in states with lax gun sale laws in order to illegally resell those guns in states and cities with strict gun sale laws. By analyzing gun trace data for trafficking indicators, law enforcement authorities have been able to identify "bad apple" gun sellers who flout state and federal gun sale laws in order to funnel legal guns into the illegal secondary market. A very small percentage of all gun sellers furnish a vast majority of guns used in crimes. Thus, shutting down the few "bad apples" can keep criminals from arming themselves. Underfunded and thinly stretched, ATF has been unable to make significant gains in shutting down "bad apple" gun sellers. Cities battling crime on their streets have instituted lawsuits against out-of-state "bad apple" gun sellers based on a theory of public nuisance, seeking injunctive relief in the form of court-appointed oversight of gun sellers to ensure compliance with existing gun sale laws. Although these efforts initially foundered in the courts, some cities are enjoying success. New York City has enjoyed considerable success in City of New York v. A-1 Jewelry & Pawn. In order to wage a successful public nuisance suit, a plaintiff city must have access to gun trace data for their city in order to prove that the seller's guns have created a public nuisance in the city. These suits are in danger of failing in the future because of an appropriations rider known as the Tiahrt Amendment. Beginning in 2003, and every year after, Congress has appended the Tiahrt Amendment into appropriations bills funding ATF. The asserted purpose of the Tiahrt Amendment is to protect law enforcement agents by limiting release of potentially sensitive data in the gun trace database, such as the names of undercover agents or informants. However, the circumstances surrounding the initial passage of the Tiahrt Amendment suggest that the Amendment's true purpose is to shield the gun industry from litigation. Since the inaugural Tiahrt Amendment, Congress has continually strengthened the rider's provisions in response to federal court decisions granting plaintiffs access to trace data, taking verbatim cues from those court decisions. The Tiahrt Amendment does not protect law enforcement officers because it interferes with cities' abilities to stem the flow of illegal guns into the hands of criminals. A complete ban on trace data release is excessive and unnecessary. ATF can release trace data to civil litigants with sensitive fields redacted, as the sensitive fields are not required to prove gun sellers' liability. As was done in at least one public nuisance case, NAACP v. Acusport, federal judges can order data release subject to confidentiality and keep sensitive data out of the public record. Additionally, the Tiahrt Amendment is not needed to protect law enforcement officers from potential danger because all data that is capable of endangering officers is already protected from release by ATF's internal regulations and by the common law "law enforcement privilege." As such, the Tiahrt Amendment is unnecessary for law enforcement protection and serves only to frustrate cities' valid efforts to shut down the "bad apple" gun sellers who put guns in criminals' hands. The Tiahrt Amendment should be abandoned.