Brady Campaign Sues BATFE And DOJ

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”;
and

(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.

One Way To Fight Dead Of Night Gun Regulations

The California Department of Justice submitted a series of regulations relating to “assault weapon bullet button” laws to the Office of Administrative Law. They wanted these regulations to go into effect with no notice and no public comment. When Craig DeLuz of the Firearms Policy Coalition got wind of this he went to the DOJ’s office and asked to inspect these regulations. While this seems reasonable to most people, he was denied.

As a result of this denial, DeLuz, the Firearms Policy Coalition, and the CalGuns Foundation filed suit in California state court on Friday alleging a violation of both the California state constitution and the Public Records Act. Alinsky’s 4th rule for radicals says to make the opposition live up to its own book of rules and FOIA/Public Records Act laws are (or used to be) a darling of progressives.

From the FPC on the lawsuit:

SACRAMENTO, CA (June 30, 2017) — Today, Sacramento resident Craig DeLuz, Firearms Policy Coalition (FPC), and The Calguns Foundation (CGF) have announced a new legal action intended to ensure that the California Department of Justice (DOJ) cannot hide its proposed regulations from the public. The action was filed after DeLuz and two civil rights advocacy organizations sought access to DOJ regulations on so-called “assault weapon” firearms so that they could review them and inform the public, but were denied.

The petitioners are represented by Paul Nicholas Boylan, an attorney based in Davis specializing in records access and government transparency issues.

In May, the Department of Justice submitted to the Office of Administrative Law (OAL) a set of regulations relating to the “Bullet Button Assault Weapons” laws that were passed and signed into law in 2016. Notably, the DOJ had submitted the regulations under the OAL’s “file & print” process, which means that the DOJ wanted the regulations to be put into law without any public notice or comment as would usually be required under the Administrative Procedure Act (APA).

When that action was discovered, DeLuz went to the DOJ’s office and asked to inspect them so that he could let California gun owners know what they contained and pass information back to the groups’ legal counsel for review. But the Department turned him away at the door, claiming that the documents were “draft regulations” and “not available for public inspection” — effectively, keeping the regulations secret from 39 million Californians even though they could have become law.

“My clients recognize that the work the Department of Justice performs directly affects the rights of millions of people,” Boylan said. “The people of California have a constitutional right to examine how and why public agencies make decisions that impact other fundamental rights, and the DOJ is no exception.”

“If a record relates to the public’s business, then the public agency that holds the record must be provided to anyone who wants to see it. That’s the law, and the DOJ must follow it,” Boylan concluded.

“When the Department of Justice denied us access to their submitted regulations and told me that they were not available for public inspection, I was outraged and insulted,” said Craig DeLuz, FPC’s California lobbyist and a spokesperson for the organizations. “Those who claim to enforce the law should be expected to follow it.”

“The California Constitution and Public Records Act make it clear that people have a right to access and inspect information concerning the conduct of the people’s business,” said Brandon Combs, the president of FPC and executive director of CGF. “We know that the Department will have more firearm and ammunition regulations coming out over the coming months, and we will not allow them to use bad faith tactics to deny the people information about these important issues.”

To help inform law-abiding gun owners about the status of the “assault weapons” laws and regulations, Firearms Policy Coalition has established a Web site at BulletButtonBan.com where it posts news and information about the issue.

Judicial Watch Goes To Court Against The BATFE

The Bureau of Alcohol, Tobacco, Firearms, and Explosives just can’t seem to keep themselves out of the news this week. The watchdog group Judicial Watch sued BATFE because they still have not responded to a Freedom of Information Act (FOIA) request for documents relating to the attempt to ban 5.56×45 “green-tip” ammunition. The FOIA request was made made in March 2015.

From Judicial Watch on their suit:

Judicial Watch filed the lawsuit after the agency failed to respond to a March 9, 2015, FOIA request seeking information on the ammo ban effort:

  • All records of communications, including emails, to or from employees or officials of the ATF related to the decision to revise the ATF 2014 Regulation Guide to no longer exempt 5.56 mm. SS109 and M855 (i.e., “green tip” AR-15) ammunition from the definition of “armor-piercing” ammunition.



The precise statutory definition of “armor-piercing ammunition” can be found in 18 U.S.C §921(a)(17).


“This is yet another example of how Obama’s wanton use of the ‘pen and the phone’ attempted to undermine the constitutional rights of all Americans, as opposed to upholding the rule of law,” said Judicial Watch President Tom Fitton. “The Obama ATF simply ignored our request on their ammo ban. Let’s hope the Trump administration finally brings transparency to this out-of-control agency.”

Reading through the complaint, it appears that BATFE just blew off this FOIA request and didn’t even assign it a control number. The complaint asks the District Court to order BATFE to search their records for the requested documents, to order them to hand over all non-exempt documents, and to enjoin them from continuing to withhold any of the requested documents. Judicial Watch is also asking for attorneys’ fees.

Judicial Watch is known for its success in these types of lawsuits. It will make for interesting reading what they uncover.