Battle for Gun Tracing Data Before the Seventh Circuit

From the Spring 2004 issue of The News Media & The Law, page 28.

Access to firearm records is at issue in a case currently before the U.S. Court of Appeals in Chicago (7th Cir.).

In late 1998, the City of Chicago brought a civil lawsuit against dozens of firearm manufacturers, distributors and dealers. Although it is illegal to possess most guns in Chicago, the city alleged that the gun industry nonetheless marketed guns to local residents.

The city requested database records from the then-Bureau of Alcohol, Tobacco and Firearms, located within the Department of the Treasury. The agency has since been renamed the Bureau of Alcohol, Tobacco, Firearms and Explosives, and is a part of the Department of Justice.

The database records contain multiple sales and trace data. Multiple sales records are lists of noncommercial gun buyers who purchased more than one gun from the same dealer within a five-day period. Trace data are records of the manufacturer and the chain of ownership of guns used in crimes and recovered by law enforcement officials.

The ATF denied the city’s Freedom of Information Act requests saying disclosure of the data would harm law enforcement investigations and invade gun owners’ privacy.

The city filed suit in federal court in June 2000. In City of Chicago v. U.S. Dept. of Justice, Judge George Lindberg of the U.S. District Court in Chicago ruled that the data must be released. The ATF appealed to the Seventh Circuit, which upheld the decision in April 2002.

In an opinion written by Judge William Bauer, the appellate court held that the ATF’s claim that release of the data would interfere with law enforcement investigations was “based solely on speculation,” and that it is “well established that one does not possess any privacy interest in the purchase of a firearm.”

The U.S. Supreme Court agreed to review the case, and set oral argument for March 4, 2003.

But while the high court was receiving briefs in the case — including one filed by The Reporters Committee for Freedom of the Press — Congress passed the Consolidated Appropriations Resolution of 2003. Buried within the massive resolution was a provision that prevented any funds from being expended to process FOI Act requests for multiple gun sales and weapons tracing data. As a result, the Supreme Court sent the case back to the Seventh Circuit for reconsideration in light of the new legislation.

The City of Chicago and ATF engaged in settlement negotiations throughout 2003, but negotiations broke down when Congress passed the Consolidated Appropriations Act of 2004, on Jan. 23. The new appropriations measure was even more broadly worded than the previous one.

The appeals court is now preparing to decide the case. The same issue is currently before the U.S. District Court in New York City in three separate cases: Johnson v. Bryco Arms, Smith v. Bryco Arms, and City of New York v. B.L. Jennings, Inc.

The Reporters Committee filed a friend-of-the-court brief with the appellate court on April 16 (see below) arguing that the appropriations resolutions do not alter the right of access granted by the FOI Act. It argued that Congress’ decision not to fund the processing of FOI Act requests, in order to insulate firearm laws from legal challenge, is unconstitutional.

A friend-of-the-court brief by the National Rifle Association, which attempted to reargue the privacy issues already litigated when the Court of Appeals heard the case the first time, was rejected by the court.

In the meantime, reporters are not without options in pushing for access to gun records. Pete Weitzel, coordinator of the Coalition of Journalists for Open Government, suggests that reporters make access a part of the story.

“What if every journalist reporting on gun-related crime in which police have confiscated the weapon ask police for the records of the gun’s history?” Weitzel said. “When turned down because ‘a federal law prohibits our disclosing that information,’ they then report it as a part of the story, letting readers and viewers know this is information they can’t be given.

“The reporter might even let people know the law was slipped into a totally unrelated appropriations bill.”

— GP