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TOP SECRET: AMERICA’S GUNS

“We’re at Desert Hills Shooting Club near Boulder City, and Paul Barrett steps up with a Glock 17,” reported the Las Vegas Sun in January 2012. “He fires the 9mm semi-automatic pistol 18 times in about five seconds and hits the target every time.”¹

An assistant managing editor and senior feature writer at Bloomberg Businessweek, Barrett writes “cover articles on subjects that range from the energy industry to the gun business.”² He was in Las Vegas during NSSF’s annual SHOT Show in 2012 to promote his new book about the Austrian gunmaker Glock and its high-capacity semiautomatic pistol design, which Barrett calls “America’s gun.”³ Careful to maintain the appearance of journalistic neutrality, Barrett’s book won a friendly reception both from gun enthusiasts, who are one of the most defensively critical audiences in the world, and from some gun control advocates.⁴

“The Glock became to handguns what Google became to Internet searches,” Barrett told the Atlanta Journal Constitution. “It’s a Glock world.”⁵

If Glock’s pistols are collectively “America’s gun” in a “Glock world,” Barrett’s firepower demonstration graphically illustrated why Glocks have had a special appeal to mass murderers in the United States. At Barrett’s reported recreational amateur’s firing rate of roughly 3.6 bullets per second, a Glock pistol can pump out 33 bullets (from a legal and commonly available Glock high-capacity magazine) in less than 10 seconds.⁶ Easily reloaded by dropping the expended magazine with a simple push of a button and shoving a new magazine into the grip, the Glock has turned tranquil scenes all over America into screaming, bloody, human abattoirs. Figure 10 lists some of the more notorious examples of mass shooting incidents in the United States in which the shooter chose to use a Glock pistol.

Figure 10. Examples of Mass Shootings with Glocks in the United States

Mass Shooting Incident	Casualties	Firearm (s)
Safeway parking lot Tucson, Arizona January 8, 2011 Shooter: Jared Loughner	6 dead, 13 wounded	Glock 19 pistol
Virginia Tech Blacksburg, Virginia April 16, 2007 Shooter: Seung-Hui Cho	33 dead (including shooter), 17 wounded	Glock 19 pistol, Walther P22 pistol
Xerox Office Building Honolulu, Hawaii November 2, 1999 Shooter: Byran Uyesugi	7 dead	Glock 17 9mm pistol
Thurston High School Springfield, Oregon May 21, 1998 Shooter: Kip Kinkel	4 dead, 22 wounded	Glock 9mm pistol, .22 Sturm Ruger rifle, .22 Sturm Ruger pistol
Connecticut State Lottery Headquarters Newington, Connecticut March 6, 1998 Shooter: Matthew Beck	5 dead (including shooter)	Glock 9mm pistol
Luby’s Cafeteria Killeen, Texas October 16, 1991 Shooter: George Hennard	24 dead (including shooter), 20 wounded	Glock 9mm pistol, Sturm Ruger P-89 9mm pistol

Violence Policy Center, “The Glock Pistol: A Favorite of Mass Shooters,” July 2011, www.vpc.org/fact_sht/GlockBackgrounderJuly2011.pdf

The examples in figure 10 were extracted by VPC from news reports. Flawed and incomplete as media reports may be, they are often the only available source about the details of gun violence in America.

Given the pestilential effect guns have on America, it is little short of incredible that the gun industry and its relentless lobby have succeeded in preventing the federal government from collecting, organizing, analyzing, and—most of all—releasing detailed data about guns and gun death, injury, and crime in America. What data exists is scattered over several different federal agencies in collections that are more often than not inconsistent, incomplete, and incompatible with each other. Information that might shed light on, for example, what makes and models of guns are used in crimes, and how frequently, is locked up tight. Laws slipped through Congress by lawmakers friendly to the gun industry’s agenda bar the release of data—even to members of Congress—that was once freely available and routinely released to the public.

The sluggish bureaucracy at ATF takes the laws a step further by spinning timid rationales to avoid releasing information. No wonder. ATF’s executive ranks have been brazenly infiltrated by the gun industry. In 2006, Shooting Industry gleefully reported—under the headline “Our Man at ATF”—that “John Badowski, a five-plus-year veteran of the National Shooting Sports Foundation staff, is now the Firearms Industry Technical Adviser at ATF”⁷ During his tenure at NSSF, Badowski helped start the National Association of Firearm Retailers to “provide federal firearms licensees with a unified voice in regulatory and legislative affairs.”⁸ He also promoted the NSSF’s “Retailer University,” which offered gun dealers such courses as Developing a Place to Shoot, and Winning Sales Techniques for Your Staff.”⁹ In 2003 the “university” announced a course titled Dealing with the Media. Badowski described the curriculum to Shooting Industry. “Let’s say a firearm has been used inappropriately and the retailer gets a phone call from a news director who says, ‘Hey, we’re on the way over with a news crew for an interview. What do you do? This is high-powered training about how to deal with the media in an adverse situation.”¹⁰

The gun industry may have learned how to “deal with the media,” but it nevertheless keeps its business as secret as possible. The greater part of the industry is privately held, foreign based, or both. The few public companies—Ruger and Smith & Wesson—stick to what they are required to file by the Securities and Exchange Commission, which regulates public trading in stocks. The rest of what is known about the business of guns in America must be meticulously panned out of a steady stream of hyperbolic promotional releases, the occasional memoir by an insider,¹¹ and intra-industry business publications. Is the gun industry booming or failing? Are women buying more or fewer guns? The industry can—and does—put the rosiest public spin on such questions to conceal its declining fortunes and validate in the American psyche the goodness of guns.

This desert of information is no accident. By choking off detailed data about the effects of its products, the gun industry can promote its fantasy world of good gun owners and bad criminals, a world in which the social utility of guns outweighs the harm they do.

Take Glock, for but one example among many. According to Paul Barrett, “Glock . . . is not a particular villain within the fraternity of firearms.”¹² Perhaps, perhaps not. Given the information lockdown, it is impossible to quantify the comparative villainy of Glock handguns and any other make. The comparison would, in any case, miss the point. Whether Glock or Taurus or Ruger or Smith & Wesson is the most evil is irrelevant. The point is that their products do tremendous, unnecessary harm to tens of thousands of innocent Americans every year.

Figure 10 illustrates the use of Glock guns in mass shootings in the United States. But what about Glock’s role in the everyday carnage documented throughout this book? How often are Glocks—or any other manufacturer’s guns—used in the crimes, murders, domestic suicides, shooting rampages, rage shootings, and other instances of violence that take so many lives and inflict so many injuries in the United States every year? These are questions the answers to which the gun industry very much does not want you to know.

One might think that ATF would be the logical place to go for an answer about the use of guns in crime (putting aside the typical delay of a year or two from collection to release of government data on any subject). After all, one of ATF’s principal law enforcement support functions is tracing the origin of guns recovered at crime scenes and matching guns with the ballistic traces left on fired bullets and casings. The ATF says its National Tracing Center (NTC) is the nation’s only crime-gun tracing facility. “As such, the NTC provides critical information that helps domestic and international law enforcement agencies solve firearms crimes, detect firearms trafficking and identify trends with respect to intrastate, interstate and international movement of crime guns.”¹³ Here is how ATF recently described the process:

Firearms tracing is the systematic tracking of the movement of a firearm from its first sale by a manufacturer or importer through the distribution chain in an attempt to identify the first retail purchaser in order to provide investigative leads for criminal investigations. After the firearm is recovered and the identifiers are forwarded to the NTC, ATF contacts the manufacturer or importer to ascertain the sale or transfer of the firearm. ATF will attempt to contact all ensuing Federal firearms licensees (wholesale/ retail) in the distribution chain until a purchaser is identified or the trace process cannot continue due to a lack of accurate or incomplete information on the trace request or in the Federal firearms licensee’s records.¹⁴

There is no question that ATF has an enormous database documenting in detail—by make, model, caliber, origin, etc.—these “crime guns.” The NTC traced over 295,000 guns in calendar year 2007; in 2008, over 288,000 guns; in 2009, over 354,000 guns; in 2010, over 285,000 guns; and in 2011, over 319,000 guns.¹⁵ That’s a million and a half crime-gun traces in just five years.

One might think that the massive cost of gun crimes would inspire the release of this entire valuable database, rather than the sparse summary data ATF releases from time to time. According to a 2012 report by the Police Executive Research Forum, a nonprofit police research organization,¹⁶ in 2010 alone the cost of gun crime in America—gun murder, armed robbery, and aggravated assault—was almost $58 billion: $57,926,815,000 to be exact (using the most conservative of the three most recent studies of such costs).¹⁷

One would, however, be mistaken in that thought.

There is no chance under present law—known as the Tiahrt Amendment—and federal government policy that the ATF data will be released in any form that is of serious use to the general public, public policy analysts, or much of anybody else, for that matter. Combined with a federal law barring most civil lawsuits against the gun industry, the dearth of information is an essential part of the industry’s strategy to insulate itself from liability for the consequences of its products, a civil liability that almost every other consumer product in America bears.

In addition to protecting itself from lawsuits, the gun industry and its advocates are also aware that when the broader public debate about guns and gun violence is fact based, they lose. When Americans get a glimpse of the truth, they are appalled. For example, the VPC’s continuing research on fatal, nondefensive shootings involving private persons legally allowed to carry concealed handguns in public revealed in May 2012 that within a single state, Michigan, over a single year (July 1, 2010, to June 30, 2011), permit holders took thirty-eight lives, by either killing others or committing suicide.¹⁸ “Michigan is one of the few states that releases any data about non-self-defense deaths associated with concealed handgun permit holders,” VPC’s legislative director Kristen Rand noted in releasing the data. “If we could obtain similar data for every state that issues concealed handgun permits, the numbers would be staggering. The public deserves to know the truth.”¹⁹

Congress has even required ATF to state—in the few reports that it does release from its gun-trace data—that the traces are not a “random sample” and “are not chosen for purposes of determining which types, makes or models of firearms are used for illicit purposes.”²⁰ What Congress does not acknowledge and does not require ATF to state is that there is no other source of data, random or not, that comes near to matching the value of the millions of crime-gun histories in the ATF trace data. Only ATF has such extensive records of traces of guns associated with crimes in the United States. And in any case, ATF does not “choose” the guns it traces—the trace requests come to ATF from law enforcement agencies.

As one commentator has noted, “a flawed representation is better than no representation at all.”²¹ If Congress truly wanted better sources of analytical data than ATF crime-gun trace data, it would take a different tack. It would mandate the creation and funding of a comprehensive data gathering and analysis system that would provide a complete, detailed, and freely accessible national picture of guns and gun violence, integrating law enforcement and public health data sources. Such a fact-based resource—with great granularity at national and local levels of experience—would provide such information as: the number and rate of murder-suicides, the characteristics of the perpetrators and their victims, and the kinds (type, model, caliber, and manufacturer) of guns they use; the number and kind of gun crimes committed by concealed-carry-permit holders and other private persons legally allowed to carry concealed guns, as well as the kind of guns they used; the number and types of gun crimes by type, model, caliber, and manufacturer (and importer, in the case of imported guns); the use of high-capacity magazines in gun crimes; and the means by which persons using guns in crime obtained their guns.

The collection and analysis of data about the public health factors in gun death and injury have also been suppressed by the gun industry and the NRA. For ten years—from 1986 to 1996—the Centers for Disease Control and Prevention (CDC) sponsored groundbreaking peer-reviewed studies of the public health effects of guns in the United States.²² The agency’s gun violence research agenda was a relatively small part of its overall program of research into the causes of deaths and injuries and ways to reduce them. The NRA, however, launched an aggressive program—aided by a small group of conservative doctors—to shut down the CDC’s research effort.²³ The NRA’s objective was initially to eliminate entirely the CDC’s National Center for Injury Prevention and Control, thus intending to sacrifice all injury prevention research on the altar of “gun rights.” When they were unable to wipe out the agency, the gun lobby enlisted a Republican U.S. representative from Arkansas, Jay Dickey, to help it push through Congress an amendment that cut $2.6 million from the injury prevention center’s budget. That was roughly the same amount that had been spent the year before on its gun research programs.²⁴ “It’s really simple with me,” Dickey told the New York Times in 2011. “We have the right to bear arms because of the threat of government taking over the freedoms that we have.” The NRA’s success not only cut off funding. It cast a deep chill over the CDC’s willingness to sponsor research into the causes of gun violence and the best ways to prevent it. “We’ve been stopped from answering the basic questions,” Mark Rosenberg, the former director of the injury prevention center, told the Times for the same 2011 article.²⁵

But following the 2012 Aurora massacre, former representative Dickey and Rosenberg joined forces to argue in favor of resuming the kind of government research that Dickey had helped cut off. “Now a body of knowledge makes it clear that an event such as the mass shooting in Aurora, Colo., was not a ‘senseless’ occurrence as random as a hurricane or earthquake but, rather, has underlying causes that can be understood and used to prevent similar mass shootings,” the two wrote in an opinion piece published by the Washington Post. “Firearm injuries will continue to claim far too many lives at home, at school, at work and at the movies until we start asking and answering the hard questions,” they observed.²⁶

Media reports provide a glimpse of the gun violence that Congress has chosen to hide from the American people. Appendix B, for example, is a compilation of incidents involving Glock handguns that were reported in the media between May 1, 2011, and April 30, 2012, extracted from searches of the Nexis.com commercial database. Glock seemed a fair choice for this snapshot, given its iconic nature. “It’s not the romantic idea of a gun,” according to Paul Barrett, the Glock chronicler. “It’s the essence of a gun.”²⁷

As shown in chapter 1, the news media underreport gun incidents in general. In addition, media reports of gun incidents often do not specify the make or model of the gun used. For these reasons, this compilation without a doubt understates reality. Nevertheless, appendix B illustrates the magnitude of the harm that Glock’s handguns routinely inflict on ordinary Americans. The reported incidents include the familiar categories of gun violence: murder-suicides, rage killings, criminal trafficking, children killing themselves or killing other children, unintentional mayhem, and so on. A few incidents deserve a closer look because they illustrate how ATF collects gun crime data and how much that data could contribute to an informed public.

One of the more tragic of these examples is the horrific murder of Skyla Whitaker, eleven, and Taylor Paschal-Placker, thirteen, on Sunday afternoon, June 8, 2008, near the small town of Weleetka, Oklahoma.

Skyla and Taylor were inseparable friends. Taylor was “a big-hearted girl who rescued turtles crawling in the middle of the road and wanted to become a forensic scientist.” Skyla was “the carefree adventurer—the girl who walked barefoot almost everywhere and rode her bicycle down dirt roads.” Taylor was the only girl in the sixth grade class, Skyla the only girl in the fifth.²⁸

The girls often spent weekends at each other’s homes.²⁹ That Sunday at about five P.M., Skyla and Taylor went for a walk—as they often did—down a deserted dirt road toward the Bad Creek bridge. The bridge is “a popular place for teens to gather and shoot guns.”³⁰ A few minutes later, Taylor’s grandfather called her to tell the girls to come home. When she did not answer her cell phone, he went looking for the two. He found both girls lying side by side in a ditch, shot dead.³¹ An autopsy found that Skyla was shot eight times and Taylor five. Both were shot in the legs, torso, neck, and base of the skull. Both were shot with guns of two different calibers. Both were apparently facing the shooter.³²

There was little for investigators to go on. Authorities suspected that the shooter was probably a local, given the remote rural location, even though residents were horrified by the thought. “Everybody wants it to be a monster because they don’t want to believe it could happen in their town,” an Oklahoma City detective said of such cases. “But monsters come in all shapes and sizes. It’s not like a Disney movie where you can see the villain right away”³³ Investigators doubted that a stranger would wander into the remote area.³⁴

They also considered the possibility that, given the two types of guns used, there had been two shooters.³⁵ One of the guns the girls had been shot with was a 22 caliber, and some of these comparatively small bullets, less than a quarter of an inch in diameter, were recovered in the autopsy. But what would turn out to be most important clue were five shell casings found at the scene, fired from another gun. The shells were in 40 Smith & Wesson caliber. They were manufactured by Winchester. The casings were sent for analysis to the Oklahoma State Bureau of Investigation (OSBI) Forensic Science Center in Edmond, Oklahoma.³⁶

Microscopic but highly individual tool marks are left on the working parts of guns during their manufacture, “analogous to the fingerprints of the firearm.”³⁷ By comparing under magnification the microscopic marks on the shell casings found on the crime scene, an OSBI firearms criminalist was able to determine that they had all been fired from the same gun, and that it had been a Glock 40 caliber pistol.³⁸

The 40 caliber round was developed by Smith & Wesson and Winchester and introduced at NSSF’s 1990 SHOT Show. The plan was that Smith & Wesson would make the guns and Winchester would manufacture the ammunition in the new caliber. The .40 Smith & Wesson round was the “perfect compromise,” according to the gun writer and entrepreneur Massad Ayoob, between those who wanted more rounds in their pistols’ ammunition magazines and those who wanted bigger bullets. The existing “wondernine” 9mm pistol typically held about sixteen rounds. Although the .45 ACP bullet was much bigger and thus capable of inflicting more damage, its size demanded bigger magazines and thus bigger grips for pistols chambered in it. The 40 caliber was developed as a compromise. Glock quickly followed Smith & Wesson into the market with a pistol chambered in the new round.³⁹

Heavily marketed to law enforcement by Glock, the new round became widely favored for its “stopping power” among law enforcement agencies and civilians.⁴⁰ A trainer at the Georgia Peace Officers Standards and Training Center told the Atlanta Journal-Constitution in 2004 that the “heavier bullet” used in the 40 caliber “tends to penetrate deeper . . . into the body to impact the organs deep in the body. This whole thing is about terminal ballistics.”⁴¹

Agents took pictures of people as they left the girls’ funeral and confiscated the funeral service registry.⁴² Investigators also released a drawing of a “person of interest” in the case.⁴³ But the investigation stalled. The OSBI originally assigned about a dozen agents to the case. Three months later, that number had dropped to four as leads dwindled.⁴⁴ OSBI case agent Kurt Titsworth continued to follow up clues as they came in. In January 2010, for example, he learned that a man named Kevin Joe Sweat had bought a 40 caliber Glock in the fall of 2007. Titsworth interviewed Sweat, who said that he had sold the gun in 2007 and did not know the serial number.⁴⁵ Authorities later said that there was no reason at that time to connect Sweat to the murders.⁴⁶ He was just one more of a score of people who owned Glock 40 caliber pistols in and around bucolic Okfuskee County.

That is where matters remained until August 15, 2011, more than three years after the Weleetka shootings, when Kevin Joe Sweat was arrested and charged with the capital murder of Ashley Taylor, his girlfriend. Ashley and Kevin left the town of Okmulgee, near Weleetka, on July 17, supposedly headed for Louisiana to get married. When they did not return, Ashley’s mother reported her missing. Kevin was tracked down and gave several different explanations to Agent Titsworth, who was investigating the woman’s disappearance. Eventually, the investigation led to the property of Kevin Sweat’s father near Weleetka, and the charred remains of a bonfire. In the ashes, investigators found burned clothing, bits of eyeglasses consistent with those of Ashley, and human remains believed to be hers.⁴⁷

Soon after, agents returned to the elder Sweat’s property and searched an area where, he had told OSBI agents, Kevin sometimes shot his gun. A number of 40 caliber shell casings were found in the dirt. Forensic examination revealed that they had been fired from the same gun as the shells found at the site of the 2008 murder of Skyla and Taylor.⁴⁸

On September 13, 2011, Titsworth interviewed Kevin Sweat, who was already in custody on the charge of murdering his girlfriend. Sweat confessed to the murders of Skyla and Taylor, according to the affidavit filed in support of charges against him.

Sweat pulled over on the side of the road and saw “two monsters” come at him. Sweat then “panicked.” Sweat grabbed his Glock .40 caliber handgun from between the seats of his car. Sweat then “shot the monsters” with the Glock handgun. Sweat then grabbed a “22 caliber” gun from the glove box and “shot the monsters” with the .22 caliber gun. Sweat then got into his car and left. Sweat told Titsworth that he shot the “monsters” with the Glock .40 caliber handgun that he had purchased in 2007 while living in Henryetta, OK.⁴⁹

A question of proof still remained. Agents had evidence connecting the shell casings on the crime scene to the casings on the elder Sweat’s property. Were those casings fired from the very Glock 40 caliber pistol that Kevin Sweat had admitted buying and claimed that he had sold? If investigators had the gun, they could cycle a round through the chamber and compare the marks on the shell casing to the ones they already had. By then, OSBI had obtained the serial number of the gun from the dealer who sold it to Sweat—EKG463US.⁵⁰

But they could not find the gun itself. OSBI asked the FBI to run a crime-gun trace request through ATF, using the gun’s serial number. That trace turned up an interesting history, and a one-in-a-million piece of physical evidence that sealed the case tight.

The FBI reported that the ATF trace revealed that the Glock pistol had originally been sold to the Baltimore Police Department sometime around 2005. The Baltimore police sent the gun back to Glock shortly thereafter, one of a batch of defective pistols. Glock refurbished the guns, and one from Baltimore ended up in the Oklahoma gun store where Kevin Joe Sweat bought it in the fall of 2007. But there was more. It turned out that the Baltimore police test-fire all guns before they are distributed to officers and keep the sample casings on file.⁵¹ The police department had a shell casing from the 40 caliber Glock with serial number EKG463US. On October 5, 2011, an OSBI agent picked up the shell casing from the Baltimore Police Department. The next day, an OSBI technician matched the casing to the shells recovered at the crime scene and on the Sweat property near Weleetka.⁵²

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 applications, 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