Decision increases dealer's liability for having trace guns and record

keeping violations

Overruling objections by the Justice Department, a federal magistrate in New York City has issued a ruling the city is entitled to federal firearms trace data. City attorneys argued that without the trace data, the city would have difficulty proving its claim that the industry’s marketing and distribution practices are a public nuisance.

The ruling, which came from a federal court in Brooklyn, challenges the Bush administration’s reluctance to release trace data. Congress has enacted an appropriation measure prohibiting the BATFE from using funds to release the data. BATFE attorneys argued the appropriations measures barred the bureau from releasing information. In her ruling, the judge disagreed, saying the BATFE was required to release the trace data under a city subpoena and that Congress “did not intend to restrict civil litigants from receiving firearms data pursuant to judicial subpoena.”

 A Justice Department attorney stated during the case that the department had changed a government policy that permitted the limited release of the information in an earlier lawsuit. In that 2002 lawsuit, which was filed by the NAACP, the BATFE agreed to release some of the trace information. Under the agreement, access to the data was strictly limited and it could not be used in any other lawsuit.

However, in a filing in the case, the city’s attorney cited remarks made by a BATFE attorney that the government’policy had changed under Attorney General Ashcroft. “We don’t work for the Secretary of the Treasury anymore,” said Barry Orlow, deputy associate chief counsel for BATFE. “We work for the attorney General.” He then added that “policy considerations have changed.”

The federal magistrates ruling in this case could be particularly harmful to FFLs across the country. If every trace gun is considered a crime gun, as all plantiff attorneys and the anti-gun activists claim, firearms dealers could be sued for having just one trace gun or one 4473 violation on their record.

The lead attorney for New York City said the judge’s decision is important to the city because “the proof in these suits is developed by demonstrating through these databases that the gun industry knows about the problems in the distribution networks.”

A similar battle over a demand for the same informaiton from the city of Chicago is currently being fought in the courts.