by The Last Gun- How Changes in the Gun Industry Are Killing Americans
As of this writing, the gun itself has not been found.
There are millions of similar tracing reports in ATF’s records. It was reported in 2007 that every day ATF agents from six ATF regional gun-tracing centers “use a combination of science and shoe-leather detective work to track hundreds of firearms from crime scenes.”53 This data documents the links among millions and millions of guns like Kevin Sweat’s 40 caliber Glock and crimes like Sweat’s murder of Skyla and Taylor. “Every gun has a story to tell,” William G. McMahon, the special agent in charge of the ATF’s New York field office told the Associated Press in 2007.54 Aggregating this data in summary or “wholesale” form—i.e., cutting it free from the details of specific criminal investigations—would provide a picture over time of the types, makes, models, calibers, and origin of guns used in crime in America.
The gun industry’s makeshift rationale for not releasing this data to the public is that it might compromise criminal investigations and endanger undercover operations. But Bradley A. Buckles, who was the director of ATF at the time the first of the Tiahrt restrictions was passed in 2003, told the Washington Post in 2010 that ATF did not ask for the amendment—for that or for any other reason. “It just showed up,” he said. “I always assumed the NRA did it.”55
He was right, of course. The NRA did do it, on behalf of the gun industry. The makeshift law-enforcement-protection argument was and is a cynical cover story. Tiahrt slipped his amendment into an appropriations bill, ensuring that it would be considered without any sort of hearing. When the Republican chairman of the relevant appropriations subcommittee objected, Tiahrt assured his colleagues that the NRA had reviewed the language. “I wanted to make sure I was fulfilling the needs of my friends who are firearms dealers,” Tiahrt said. NRA officials “were helpful in making sure I had my bases covered.”56
The “needs” of Tiahrt’s friends in the gun business were simple. They wanted insulation from lawsuits that were seeking to hold the industry responsible for deliberately polluting communities all over America with increasingly deadly militarized guns. The Tiahrt Amendment was very specifically and precisely aimed at cutting off these lawsuits.
One notable such suit was City of Chicago v. Beretta U.S.A. Corp., in which the City of Chicago filed a civil suit in Illinois state court against firearms manufacturers, distributors, and dealers. The city alleged that these defendants created and maintained “a public nuisance in the city by intentionally marketing firearms to city residents and others likely to use or possess the weapons in the city, where essentially possession of any firearm except long-barrel rifles and shotguns is illegal.”57
Chicago’s case was based on the defendants’ distribution practices. In order to show the irresponsible pattern of those practices, the city submitted a Freedom of Information Act request to ATF, seeking trace data. Although ATF had often provided such information in the past, it refused to comply fully with the city’s request. Chicago then filed suit against ATF in federal district court to force the agency to provide the requested information. The city won against ATF both in the district court and the court of appeals. Then, while an appeal was pending in the U.S. Supreme Court, the NRA and Representative Tiahrt worked behind the scenes to save the gun industry. Acting in the legislative equivalent of the dead of night, Tiahrt introduced what is known in Congress-speak as a rider, an amendment to the Consolidated Appropriations Act of 2003. Professor Colin Miller described the result in a law review article. “By appending the rider to the appropriations bill, he was able to prevent it from being scrutinized in a congressional committee and subjected to a floor debate. Indeed, the only opposition to the rider came after the rider was already appended to the appropriations bill. In a floor statement, Senator Richard Durbin of Illinois lamented that the rider was ‘slipped in the bill’ and contended that it was a response to City of Chicago.”58
It was as crass and as simple as that.
What about the argument that withholding even summary, abstracted ATF data is necessary to protect law enforcement? In 2002, this assertion was all but laughed out of court by the U.S. Court of Appeals for the Seventh Circuit, in a caustic opinion written by Judge William Joseph Bauer, who was appointed to the district court by Richard Nixon and the court of appeals by Gerald Ford.59 Judge Bauer wrote on behalf of a three-judge panel in the Chicago case against ATF that “in all its affidavits, documents and testimony, ATF could not identify a single concrete law enforcement proceeding that could be endangered by the release of this information.”60 The judge wrote:
For example, they testified that if an individual pieced any withheld information together with what has already been disclosed, that individual might deduce that a particular investigation is underway. However, ATF concedes that it is not aware of a single instance in which information has been pieced together in this type of scenario. ATF’s witnesses also testified that release of this data might threaten the safety of law enforcement agents, result in witness intimidation, or otherwise interfere with an ongoing investigation. Again, ATF’s witnesses failed to testify as to any specific instances in which disclosing the type of records requested did result in interference with any proceeding or investigation. ATF’s hypothetical scenarios do not convince us that disclosing the requested records puts the integrity of any possible enforcement proceedings at risk. . . . Conversely, the City had several witnesses at the evidentiary hearing in the district court who testified that the release of this data was unlikely to compromise any police investigations. . . . Thus, it is highly improbable that any revelation of this information could endanger an investigation. . . . In sum, ATF’s arguments that the premature release of this data might interfere with investigations, threaten the safety of law enforcement officers, result in the intimidation of witnesses, or inform a criminal that law enforcement is on his trail are based solely on speculation. Nothing the agency submitted is based on an actual pending or reasonably anticipated enforcement proceeding.61
It’s no wonder ATF officials could do no more than parrot the industry’s line. If one thinks about it, the argument is absurd on its face. What is really at issue in the bigger picture of the Tiahrt amendments are not the active case files of specific ongoing investigations but summaries of data from millions of transactions. One might as well argue that the Census Bureau should not release its detailed population tables because of the fantastically speculative premise that somewhere, someone, somehow, might figure out a way to “piece together” the data and find out something personal about somebody else somewhere.
Moreover, most of the actual criminal investigations underlying the statistical data are not even being conducted by ATF itself, but by other agencies who request a trace, as did the OSBI. “ATF itself is not and does not plan to conduct any relevant investigations,” the appeals court stated. “It does not track the status of investigations surrounding traced weapons, and law enforcement agencies do not inform ATF of the status of any investigation surrounding any traced weapon.”62
A useful analogy is the matter of the Justice Department’s annual reports on foreign intelligence surveillance requests, one of the most secretive and sensitive areas of government investigation. Although the number of cases is much smaller, the principle is the same. The Justice Department’s National Security Division keeps a highly classified database of all applications for court orders authorizing electronic surveillance or physical searches under the Foreign Intelligence Surveillance Act (FISA). In layperson’s terms, these are court-approved wiretaps and physical searches that are so sensitive they are approved in secret by a special court. The investigations underlying the requests involve such subjects as terrorism and spying on the United States by other countries.
Access to the database, much less to the actual investigative files, is restricted to persons with a special top-secret clearance who have a “need to know” the information.63 And yet every year the Justice Department publishes a statistical summary of these extremely sensitive a
pplications, apparently unconcerned that a terrorist or foreign spy might “piece together” the fact that the FBI might be listening in on their particular plot.64
The Seventh Circuit’s scathing dismissal of ATF’s manufactured claims was by implication also damning to the Fraternal Order of Police, the nation’s largest rank-and-file police union. FOP had submitted a friend of the court brief supporting ATF’s argument. Its tenuous argument was described, and dismissed, by one legal commentator thusly:
The Fraternal Order of Police described the following scenario: If a criminal gains access to trace data as soon as it is posted, he “learns that a specific firearm is the subject of an ongoing investigation.” The criminal is “tipped off” and able to alter his behavior. This argument assumes: that data released pertain to current investigations, that the most sensitive fields of the trace database are released, that those fields are made publicly available, and that the criminal actually learns of the data and realizes that the “specific firearm” subject to the investigation is a firearm with which he is involved. Any number of protective restrictions can eliminate the already tenuous likelihood that a criminal will learn that his exact gun is under investigation.65
Why, one might reasonably ask, would a police union want to align itself with such a transparently feeble argument, especially when scores of police chiefs support repeal of the Tiahrt restrictions? Often in Washington, when one lifts a rock, one finds curious things beneath it.
Under this particular rock is a man named James O. Pasco Jr. Jim Pasco, as he is usually known, is executive director of the FOP. He is based in an office on Capitol Hill in Washington, D.C. Pasco has been described by the Washington Post as “a product of the capital’s revolving door culture” and a person who is said by people who know him to be “a charming operator whose motives can be opaque.”66 He was ATF’s chief lobbyist in the middle 1990s, retired, and went to work for FOP. But in addition to being the FOP’s man in Washington, Pasco also runs his own lobbying business—Jim Pasco and Associates—using the same address, phone number, and e-mail as his FOP contact numbers.67
Although several newspapers have noticed a congruence between some of FOP’s positions on legislation and those of some of Pasco’s clients, he is modest about his influence at FOP. “I don’t make the policy here,” Pasco told USA Today in 1998.68 His protestation was in the context of the newspaper’s having discovered that at the same time Pasco was soliciting law enforcement groups on behalf of FOP to warn that a proposed tobacco regulation bill would create a black market in cigarettes, he was also employed in his private lobbying business by the cigarette manufacturer Philip Morris. “We’re not doing this for Philip Morris,” Pasco explained. “Obviously, I’m concerned. I don’t want it to be construed that I have a conflict.”69 Nevertheless, letters from four police groups were posted on the website of the tobacco companies. The letters and pictures of police officers were also featured in a full-page ad in national newspapers. The ad asked, “If the police are afraid of tobacco legislation . . . How safe can it be?”70
In 2010, the Washington Post observed that as a police union, “the FOP primarily focuses on traditional labor issues,” but it had also “frequently weighed in on gun-related issues during Pasco’s tenure.”71 For example, in April 2007 the FOP “became pivotal to the debate on the Tiahrt Amendment” when a coalition of city mayors sought to repeal the Tiahrt restrictions to allow them to investigate trafficking into their communities. Notwithstanding the appeals court’s rebuke of the flimsy argument, “Pasco joined National Rifle Association lobbyists to talk to members of Congress, telling them that the release of the data compromised undercover investigations.”72 The value to the NRA and the gun industry of the cover that Pasco and the FOP have given to the Tiahrt amendments cannot be overestimated.
An op-ed piece opposing the mayors appeared in the Wichita Eagle under the byline of FOP president Chuck Canterbury, Pasco’s boss. Canterbury resurrected the chimera of the supposed danger of releasing details of active cases, writing that “officers in the field who are actually working illegal gun cases know that releasing sensitive information about pending cases can jeopardize the integrity of an investigation or even place the lives of undercover officers in danger.”73 More recently, the NRA’s chief lobbyist reported that “NRA and the nation’s largest police group, the Fraternal Order of Police, have worked together on numerous issues, and thanks to the leadership of FOP National President Chuck Canterbury our working relationship is now stronger than ever.”74
Pasco went even further than Canterbury in his criticism of the mayors’ efforts to hold the gun industry accountable. “This is like mayoral vigilantism,” he told the Associated Press in May 2007. “It’s not their law to enforce. They go out like a bull in a china shop and wander around outside their jurisdictions trying to make civil cases. It’s absurd.”75
The same month, NSSF gave a $ 100,000 check to the FOP for its memorial to fallen police officers. According to the Washington Post, “Pasco said there was no connection between the donation and the FOP’s positions.”76
That may be. But here’s another curious and related fact under this particular rock. Jim Pasco is also a principal in another lobbying group called CornerStone Associates.77 Cornerstone Associates states on its website that it is “a lean integration of professionals with complementary expertise,” whose “government affairs consulting” can help its clients “navigate using strong relationships in both the Executive and Legislative branches of Government.”78 And, according to CornerStone Associates’ client list, the National Shooting Sports Foundation is one of its clients.79
Todd Tiahrt is no longer in Congress. He was defeated in a primary race for the Republican senatorial nomination in 2010. It may not have helped his cause that his hometown newspaper, the Wichita Eagle, endorsed his opponent. The paper noted that Tiahrt “can be too ideological, relying on GOP talking points and marching orders.”80
Tiahrt’s legacy lives on, however.
As a presidential candidate, Barack Obama promised in 2008 that he would repeal the Tiahrt Amendment. He has done no such thing. Local law enforcement agencies have been allowed some greater access to the ATF’s data concerning local matters. But a great deal more of its national trace data remains locked away from police, from mayors, and from the public.81
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PAPER TIGER
“You would get a far better understanding if you approached us as if you were approaching one of the great religions of the world,” the NRA’s executive vice president J. Warren Cassidy told Time magazine in 1990.1 “Like any religion, the NRA has its gods, commandments and hierarchy,” Josh Sugarmann wrote in his 1992 book about the NRA. “The faith is passed down by the leadership to the laity, and, like all good fundamentalists, both are unswayed by the complexities of modern life.”2
Once lost to the NRA, Mitt Romney was found in 2012. He came home to Wayne. “What a job Wayne LaPierre just did,” Romney said at the NRA’s annual convention, praising its chief executive officer and executive vice president. “What an extraordinary man. I owe him a great debt of gratitude.”3
Romney did not explain why he owed LaPierre his gratitude. It was no doubt because of Wayne’s power to absolve Romney of his sins. In 1994, when Romney was running against Senator Edward Kennedy, he supported the assault weapons ban pending in the 1994 crime bill. A “campaign source” told the Boston Herald that “there was a lot of soul-searching” before the decision to support the legislation.4 A few days later, the candidate himself made a stronger assertion. “There’s been no wavering [on the assault ban],” Romney said. “I studied it and made a decision.”5 Two months later, Romney said that he also supported the new Brady law, imposing background checks on gun purchasers. “I think it will have a positive effect,” Romney said.6 He publicly rejected help from the NRA, citing his support for the assault weapons ban and the Brady law. “That’s not going to make me the hero of the NRA,” he said. “I don’t
line up with a lot of special interest groups.”7
Kennedy beat Romney, but the latter was later elected governor of Massachusetts, serving from 2003 to 2007. As governor, Romney continued to advance a legacy of strong gun regulation that, in 2009, rewarded the people of Massachusetts with the lowest per capita gun death rate in the nation. In 2000, the state’s attorney general had begun enforcing what have been described as “the strictest and most comprehensive handgun safety laws in the nation, banning all gun makers and dealers doing business in the state from selling handguns that do not have tamper-proof serial numbers, trigger locks and safety devices enabling a user to know whether the gun is loaded.”8 In 2003, Governor Romney raised gun license fees from $25 to $100.9 In 2004, he signed the state’s revised assault weapon ban, amended to remain in effect after the demise of the sunsetting federal law.10 “I believe the people should have the right to bear arms, but I don’t believe that we have to have assault weapons as part of our personal arsenal,” Romney said on Fox News.11
The strong gun controls that Romney supported and expanded have worked to save lives in Massachusetts. An April 2012 analysis by the Violence Policy Center of 2009 national data (the most recent then available) demonstrated that states like Massachusetts with low gun ownership rates and strong gun laws also have the lowest rates of gun death.12 Household gun ownership in Massachusetts stood at 12.8 percent, and its gun death rate was 3.14 per 100,000—the lowest in the nation. By comparison, household gun ownership was at 45.6 percent in Louisiana, which had the highest gun death rate in the nation at 18.03 per 100,000.13