MONDAY, FEBRUARY 26, 2024

Earlier this week, reports began appearing around the country that purports to name firearms dealers whose gun sales were most frequently traced to guns used in crimes. The headlines were sensational, but the facts behind the story tell a different story. Once again, it’s an example of making misleading representations of so-called facts. In this edition of QA Outdoors, we talk with NSSF’s Senior VP and General Counsel Larry Keane about this, the latest attempt to “Name and Shame” law-abiding gun dealers. It’s always troubling, but this time, it seems someone at ATF broke the law by releasing restricted information.

QA Outdoors: Larry, we're talking today about an abuse of the Freedom of Information Act. It’s the release of ATF information that makes the gun industry look pretty terrible, until you look at the information in context. That’, unfortunately, isn’t what’s happening. Would you take us through the stages of this issue that we call ‘Name & Shame’?

Larry Keane
Yes, some number of months ago, a reporter from the USA Today, and also separately, from Brady United served Freedom of Information Act requests on ATF for the list of licensed dealers that are on what is known as ATF Demand Letter Two. And ATF released that list to both USA Today and Brady Unite.

The list identifies license dealers who meet the parameters for being placed on the Demand Letter Two program. That is a licensed dealer who has had at least 25 traces in a year where firearms had what ATF refers to as ‘time to crime ‘ of less than three years.

“Time to Crime” means the time between when the firearm was sold at retail to a non-licensee, a consumer, after a 4473 and a NICS background check which is required by federal law until it recovered by law enforcement in connection with a crime and traced. They call that “Time to Crime.”

When you're a dealer on the Demand Letter Two program, you, as the dealer must report to ATF on a quarterly basis, the make, model and serial number of used firearms that you take into your inventory.

ATF has said that the fact that a dealer has received a trace or received even more than one trace does not mean that they've done anything wrong at all.

And that is true for dealers that are on Demand Letter Two. You cannot make any assumptions about the dealer based on the fact that they're on the program.

Dealers come on the program - and dealers come off of the program. ATF evaluates them - and if they fall outside of the parameters- they're no longer subject to Demand Letter Two.

So you see from the reporting, you have small mom and pop stores and you have very large corporate retailers, like several Bass Pro Shops.

And again, it's absolutely critical this does not mean the dealer did anything wrong.

Unfortunately, ATF released this information - for the first time ever - in response to a FOIA request demand letter.

The names of the dealers on Demand Letter Two have never been released publicly by ATF. We believe they released in violation of federal law. That’s because the information comes from the National Tracing Center Firearms Tracing System. That's the database of traces.

Congress, going back over 20 years now, I believe, has restricted the release of trace data, because it's sensitive law enforcement data. It is not to be shared outside of law enforcement.

(EDITOR’s NOTE: The Tiahrt Amendment is a provision of the U.S. Department of Justice 2003 appropriations bill that prohibits the National Tracing Center of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) from releasing information from its firearms trace database to anyone other than a law enforcement agency or prosecutor in connection with a criminal investigation

QA Outdoors: Yet, here we are …

Larry Keane
The Tiahart Amendment language says expressly, that the information is not subject to FOIA requests, or any civil discovery, a subpoena, etc. It is walled off from disclosure.

And so we're we're very disappointed that ATF released this information - we believe in clear violation of the TiahrtI Amendment -it’s not a rule- it’s a federal law. The information that the list disclosed comes entirely from the firearms tracing system.

How many dealers received a trace?

How many traces, what the minimum number is, and what the so called “Time to Crime” is - all of that information comes from that system.

All of that information is covered by the Tiahrt rider and is barred from disclosure, outside of law enforcement, and again, it is expressly outside the scope of a FOIA request.

QA Outdoors: Now, not to put words in your mouth, we can't un-ring the bell. But what is being done with that data makes the release even worse. And that's, the shorthand for we call “Name and Shame” of these dealers.

Larry Keane
That's exactly what is occurring as a result of ATS violation of federal law. There are stories appearing all over the country with screaming headlines about dealers who sold the most guns used in crime. And the headline suggests, unfortunately, that the dealers are somehow corrupt and engaging in illegal activities.

QA Outdoors: It makes dealers look like the place where gangbangers appear at the drive up window to pickup their AKs …

Larry Keane
It is very damaging to those dealers who have done nothing wrong. ATF has said always there are many reasons why a store may have traces - or may have more than one trace.

Things like: you've been in business for a very long period of time, you’re a very high volume dealer, you're a dealer located near a high crime area. Or you're a dealer located near a major interstate highway.

There are a variety of factors that influence tracing.

But ATF - going all the way back to the Clinton administration - has said that the fact that a dealer receives a trace or receives more than one trace does not suggest that they have done anything wrong.

It doesn't suggest the manufacturer has done anything wrong. Or the distributor has done anything wrong, or the retailer,period.

QA Outdoors: If in fact it suggests anything, it may suggest that they're pretty darn good at their work. I'm just going to pull a name at random - Bud’s Gun Shop. It's been around a long time. It's a very reputable dealer. They sell hundreds and 1000s of guns a year - and a large portion of that is trade-ins.

Using the statistical rule of large numbers, it's more than likely they're going to have more traces than the two year old gun shop that's struggling to keep the doors open down the street, but is still operating completely legit.

It's the skew of the data is what makes me crazy about all of this. It's it's a very, very broad, dark brush, they're using to “Name and Shame” honest businesses.

Larry Keane
ATF put this system in place, so they would be able to complete traces involving used firearms. Once a gun is sold at retail by a dealer after a 4473, and a background check, a trace of that firearm will go from the manufacturer to the distributor to the retailer, to the first lawful buyer. If that gun is later traded in as a used gun, ATF is not able to trace that firearm.

So for whatever reasons, 20 years ago, ATF decided that they would collect this information from dealers on Demand Letter Two. It used to say 10 guns as the number..but ATF increased it from 10 to 25. Because there were just so many dealers at 10 it didn’t make any sense- and didn’t provide any useful information. So this is the problem.

I mean, if you look at the list that is in the USA Today story, you know, there are everything from Bass Pro Shops down to you know, single store Mom and Pop retailers. Yeah.

QA Outdoors: And Rural Kings, Sportsman's Warehouse locations, along with Town Guns of Richmond, Virginia and Ammo Brothers of Ontario, California. The reports are also cherry picking locations- like the Bass Pro Shop in Denver that sold a handgun involved in the Aurora shooting 12 years ago.

Larry Keane
They run these articles, its “Name and Shame” - their names are smeared in the press. In the USA Today article, you have to read all the way down to the bottom to get to the point where it talks about the fact that the list doesn't mean anybody on it is is a bad apple dealer or is corrupt. It means nothing of the sort.

So it's very frustrating to the industry that ATF released this information. We believe in clear violation of the Tiahrt rider. We have expressed our disappointment - to put it mildly - and our frustration with the release of this data again, for the first time ever.

As I am quoted in the USA Today story, it's “counterproductive”. You have dealers that cooperate with law enforcement. Then they see ATF has released their name.

Then they get their name smeared in the press, by people who don't understand what the information does - or doesn’t- mean.

That's counterproductive to having a good, cooperative working relationship between the industry and ATF.

A relationship ATF itself has said is vital to their ability to do their job - to get the criminals that are misusing firearms, as they call them “trigger pullers”- which is something the industry certainly agrees with and wants to see done.

We don't want to see criminals obtaining or misusing firearms. That's why, for example, we do th “Don’t Lie for the Other Guy” program with the ATF for now going on 25 years.

QA Outdoors: Yeah, and the industry has given away a gazillion gun locks over the similar period of time. 

The thing that affects me bothers me the most about this, looking at it from from a statistical and value of numbers viewpoint- there's no context offered in this. It’s like saying Chevy's are in more fatal car crashes than Fords - or more Fords in car crashes than Edsel’s. There hasn’t been an Edsel manufactured in fifty years. But it’s given the same value. 

Larry Keane
Let me give an example: somebody someone could legally purchase a firearm from a retailer and then their house or their car gets broken into and the firearm is stolen. It winds up being, you know, at a crime scene, and the police end up tracing the gun.

It will come back to the dealer as a trace. But the dealer has done nothing wrong, the gun was stolen. Te problem is, you know, that just does not show up in the story. It’s not explained - you just see the headlines.

There’s NO context to evaluate the information..instead “Here Are the Dealers in OUR Community That Sell the Most Crime Guns” -suggesting they’re knowingly, willingly, blindly selling guns to criminals.

QA Outdoors: What's the recourse on this? Is there any recourse? If there is - what's being considered?

Larry Keane
Again, we've expressed our view of this with ATF.

I'm hopeful that they will take that into consideration and realize they violated the Tiahrt Amendment.

We have heard from Congressional offices asking “what happened here, how did this happen?” Isn’t this protected from disclosure by Tiahrt?

I expect that we'll see some Congressional engagement with ATF on this issue. There may need to be oversight hearing, or, or language, put into the appropriations writer to make it very clear what the what the ramifications are for violating the Tiahrt.

Not just for ATF, not in not in the FOIA context, but necessarily, but law enforcement agencies, getting the data, then turning it over to, you know, lawyers representing the city who then turn around and sue members of the industry.

So we're concerned about that we've seen that occur on more than one occasion.

In fact, the city of Baltimore has served a FOIA request on ATF for trace data, not the demand letter issue, but just tracing in general, related to firearms recovered in Baltimore. Interestingly, ATF has denied the release, and respond to that FOIA because of the Tiahrt Amendment.

But NSSF has moved to intervene in that case, which is pending in federal court in Baltimore, to protect the interests of our members of firearms retailers, from what happens when this data is released.

We see exactly what happens where there's “Name and Shame” going on, which is very unfair and unfortunate for those dealers who have done nothing wrong.

QA Outdoors: What is/can a dealer do to counter to counter this? Is there anything?

Larry Keane
The problem is there's they don't have a clear recourse to raise issues. But I think they should contact their member of Congress to express their frustrations so their member of Congress knows what happened. 

And Congress has the oversight ability and responsibility to ensure that its laws are followed. And they were not followed in this case.

QA Outdoors: It's it is not a victimless crime. But it appears no one’s going to pay a penalty except the innocent.

Larry Keane
That's probably what will happen. Unfortunately, But, I would just point out that it's not a simply a rule. It is not some policy. It is the law.

QA Outdoors: But who gets prosecuted?

Larry Keane
That's the problem is it would be the government prosecuting the government. I think the answer is to raise awareness on Capitol Hill that this has occurred and how it violates the law. Then to make sure that it does not happen again.

Larry Keane
It's troubling when the government in this case, ATF doesn't follow the laws passed by the elected representatives of the people. That's troubling. That's not how it's supposed to work.

No, we think Congress needs to look into this, perhaps oversight hearings, and to question ATF about why this happened, how this happened, and what's their justification for it?

And I don't really think they will have a valid justification, because it's patently obvious that it's a Tiahrt Violation.

QA Outdoors: That's probably a good point to leave it at that. If you’re one of those wronged dealers, reach out to your representatives and let them know you’ve been wronged. Be prepared to explain to them what’s happened and why it’s a violation of the Tiahrt Amendment. It’s far easier to get them to take action if they understand the problem.

 
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