On October 20, a California federal judge heard arguments in a lawsuit seeking to compel the Bureau of Alcohol, Tobacco, Firearms and Explosives to turn over data about guns smuggled from the United States into Mexico and Central America. The data, if released, would represent just the second time in two decades that the ATF has offered a detailed glimpse inside its firearms tracing database, which has been a black box to the public since Congress restricted its disclosure in 2003.
The suit stems from the ATF’s denial of a Freedom of Information Act Request submitted in March 2021 by John Lindsay-Poland, an Oakland-based anti-arms-trafficking activist and the plaintiff in the case. The request sought data on guns that were purchased in the U.S. before being recovered at crime scenes in Mexico, Guatemala, Honduras, and El Salvador. Lindsay-Poland asked the ATF to provide statistics on the origins of firearms recovered in each country, including the U.S. states, counties, and zip codes where they were purchased, among other information.
The four countries he cited grapple with some of the worst firearm homicides rates in the world, largely driven by guns trafficked from the U.S. Publicly available ATF records show that in each of those countries, U.S.-sourced guns account for between 37 percent and 70 percent of all guns recovered and traced by law enforcement. According to Lindsay-Poland’s lawsuit, the data he is seeking would shed light on how cross-border gun smuggling is organized, shifts in trafficking trends over time, and the impact of state gun laws.
“This data has the potential to help save lives,” Lindsay-Poland told The Trace. “It would provide an opportunity to understand the dynamics of international gun trafficking with greater clarity, and to design more effective ways to combat it.”
In denying Lindsay-Poland’s FOIA request, the ATF invoked federal restrictions on disclosing the contents of its firearms tracing database, in which the agency stores the results of gun traces conducted at the request of its law enforcement partners.
An ATF spokesperson said the agency could not comment on pending litigation.
As The Trace has reported, a gun trace is the process by which the ATF determines the provenance of a recovered crime gun. The ATF traces hundreds of thousands of crime guns recovered by domestic and foreign law enforcement agencies every year. In the late 1990s and early 2000s, when ATF trace data was still available to the general public, city governments across the United States used it to sue gun manufacturers and wholesalers, arguing that they should be held liable for shootings committed with their products. To derail these lawsuits, the gun industry successfully pushed Congress to pass the so-called Tiahrt Amendments, restricting the ATF from releasing detailed trace information outside of law enforcement.
An exception in Tiahrt permits the ATF to provide the public with “statistical aggregate” trace data, but the agency has argued that this exception only allows it to publish reports, not to release the information in response to public records requests. Each year, the ATF publishes statistics on crime guns recovered in each state, as well as on those recovered in each foreign country that participates in the agency’s tracing program. These reports contain details such as the types of guns recovered and, for guns recovered in the U.S., the states in which they were originally purchased. Most trace information has remained off-limits, however.
Activists and journalists seeking more granular trace data have battled the agency over the limits of Tiahrt, with mixed results. In a 2020 lawsuit brought by the Center for Investigative Reporting, the Ninth Circuit Court of Appeals ruled that the ATF had to release information concerning the number of guns that had surfaced at crime scenes after being sold to law enforcement agencies. That lawsuit centered on a FOIA request submitted by the journalist Alain Stephens, who was examining the police practice of reselling retired service weapons to the public. Stephens is now a staff writer at The Trace.
While the ATF was ultimately forced to disclose the data that Stephens had requested, the victory was short-lived: Less than a month after the Ninth Circuit’s ruling, a different circuit court weighing a similar case decided that the ATF had no obligation to release aggregate trace data to FOIA requesters. Since that ruling, the agency has received at least 77 FOIA requests for aggregate trace information. It has denied them all.
Victoria Baranetsky, general counsel for the Center for Investigative Reporting, who argued Stephens’s case and submitted an amicus brief in Lindsay-Poland’s, said she would be surprised if Lindsay-Poland lost his case. Lindsay-Poland sued in the Ninth Circuit, which is bound by its earlier decision to release data to Stephens.
Baranetsky noted that a win for Lindsay-Poland would require the ATF to grant other FOIA requests submitted by people in the Ninth Circuit’s jurisdiction. “Ostensibly there would be different rules that would apply in different jurisdictions,” she said. “This would be very odd for something as clear-cut as whether or not certain records can be released, but it isn’t unheard of.” She added that if the Ninth Circuit affirms its earlier ruling, the ATF would be able to appeal.
Multiple arms trafficking researchers said the release of the requested data would be a boon to their work, which has long been hamstrung by Tiahrt. They also said the data would empower the public to make more informed decisions about how law enforcement agencies and elected officials can most effectively crack down on gun trafficking routes.
“If we can’t conduct a serious analysis of the data, how can we inform policy makers?” said Eugenio Weigend Vargas, a researcher at the University of Michigan’s Institute for Firearm Injury Prevention. “How can we inform the public?”