With the departure of Dan Gross as President of the Brady Campaign, the new leadership seems to have shifted some of organization’s strategy to the courts. First there was the lawsuit against Slide Fire Solutions filed in conjunction with an class-action, personal injury firm in Las Vegas. That suit was filed less the same week as the Las Vegas mass casualty event. There is significant question whether that suit can even proceed given the Protection of Lawful Commerce in Arms Act.
On Monday, the Brady Campaign filed suit in US District Court for the District of Columbia against the Department of Justice and the Bureau of Alcohol, Tobacco, Firearms, and Explosives. They are accusing the BATFE of ignoring two Freedom of Information Act requests for documents related to Associate Deputy Director Ron Turk’s white paper and for documents related to warning letters or license revocations sent to Federal Firearm Licensees. By ignoring the FOIA requests after acknowledging receipt of them, BATFE provided the Brady Campaign with an opportunity to sue to get the info they seek.
From their press release, in part, on the lawsuit:
“The ATF has a critical role in monitoring the gun industry and keeping America safe from gun violence. We sought information about its work, and it did not respond, even though it is required to do so under federal law. We certainly hope that ATF is doing its job and the public deserves these documents so we can make sure that the ATF is doing everything it can to stop gun trafficking and other crimes,” said Avery Gardiner, Co-President of the Brady Center to Prevent Gun Violence.
Brady lawyer Mariel Goetz added, “The Brady Center has worked diligently to follow all procedures to obtain this information. Last week, our organization filed a class action suit on behalf of the attendees of the Las Vegas music festival who suffered through the deadliest mass shooting in modern American history. Today, we file suit on behalf of all Americans. We all deserve information about our government’s efforts to regulate firearms and stop illegal gun trafficking. We need transparency to make sure that the federal government is doing what it should to stop gun violence.”
The complaint gives more detail on what they are seeking in their FOIA requests.
On the white paper:
(1) All communications between ATF employees related to the
January 20, 2017 White Paper titled “Federal Firearm Regulations
– Options to Reduce or Modify Firearms Regulations”;
(2) All communications between ATF employees and members of
the Presidential Transition Team related to the January 20, 2017
White Paper titled “Federal Firearm Regulations – Options to
Reduce or Modify Firearms Regulations”;
(3) All communications between ATF employees and nongovernment
employees, including but not limited to representatives
from gun manufacturers or the National Rifle Association, related
to the January 20, 2017 White Paper titled “Federal Firearm
Regulations – Options to Reduce or Modify Firearms Regulations”;
(4) All other documents, including drafts, related to the January 20,
2017 White Paper titled “Federal Firearm Regulations – Options to
Reduce or Modify Firearms Regulations.”
And on the warning letters and revocation notices:
(1) All warning letters, warning conference notices, and the
underlying reports of violations and firearms inspection narrative
reports, issued to federal firearms licensees from July 1, 2015
through June 30, 2017;
(2) All notices of revocation of license and the accompanying ATF
Form 4500s issued to federal firearms licensees from July 1, 2015
through June 30, 2017.
As I see it, the FOIA request for any communications between ATF and then President-elect Trump’s transitional team as well as any communication related to the White Paper with the NRA and firearms manufacturers is to dig up anything that they or their allies can use for political purposes against Trump, the NRA, and the firearms industry.
Conversely, the second FOIA request is an attempt to have the BATFE give them information that they can use for lawsuits against dealers and distributors. This would be part of their attempt to pierce the PLCAA through their “Bad Apples” project. While FOIA was never meant to substitute for the discovery process in litigation, the courts have ruled that there is no prohibition against it either.
Bearing in mind that I am not an expert on FOIA in the least and that I find it somewhat humorous that I am defending BATFE of all agencies, I think BATFE was correct in not releasing this information to the Brady Campaign. I think BATFE can make a very strong case that releasing warning notices/letters and revocation notices would interfere with potential law enforcement legal proceedings which is an exemption under FOIA. I think a strong argument could also be made that this should be considered commercial information which is a specific exemption as well. Likewise with the FOIA request for info on the white paper, since it was not a final statement of policy and could be considered part of the deliberative process, I think BATFE has grounds for not releasing this information as well.
Where the BATFE screwed up was in not informing the Brady Campaign within 20 days of their request that they could go pound sand. This could be due to bureaucratic laziness on the part of BATFE’s FOIA officer. Whatever the reason was it did provide the Brady Campaign the legal go-ahead to file suit. How a judge on the US District Court for DC might rule on this is anybody’s guess. I will note that in addition to the Brady Campaign’s own lawyers, they have pro bono lawyers from the mega-law firm of Covington and Burling. The marriage of gun controllers with big law is shameful in my opinion but progressives gotta do what progressives do.