Eric Schneiderman
How the Tiarht Amendment is Undermining Civil and Criminal Justice Efforts Against Illegal Guns
Cross-posted from Tort Deform: The Civil Justice Defense Blog
In the wake of this week's tragic shooting rampage at Virginia Tech, we are witnessing a lot of hand-wringing by politicians who acknowledge that the flooding of America with easily available handguns is a problem, but contend that the overwhelming power of the gun lobby prevents us from doing anything about it. In fact, there's a great deal we can do. For one thing, we can unshackle our law enforcement officers and lawyers by allowing them to use data on "crime guns" to stop the small minority of gun dealers that supply America's criminals with their weapons.
Since the 1990s victims of gun violence, realizing that they were inadequately protected by federal enforcement of gun trafficking laws, have gone to court to seek compensation for their suffering, and relief for themselves and their communities from future negligent behavior by the gun industry. Because of the chronic intentional understaffing of the federal Bureau of Alcohol, Tobacco and Firearms, civil litigation against gun dealers is critical. At their current rate of conducting compliance inspections it will take the ATF twenty-two years to inspect each of the 104,000 federally licensed firearms dealers only once.
One of the keys to making successful civil claims against gun dealers has been to demonstrate that there exists a special class of gun dealers that stand out from the vast majority because of their disproportionate contribution to the flow of guns from the legal market into the hands of criminals who, predictably, use them to commit crimes. The way to make these connections is by analyzing aggregate data, collected by the Bureau of Alcohol, Tobacco and Firearms (ATF), tracing guns that have been recovered from crimes to their original source. In the past such analysis has shown that approximately 1 percent of guns dealers sell approximately 57 percent of the guns that are used in crimes (ATF Commerce in Firearms Report, February 2000). For an individual shop that is supplying the illegal market that means having hundreds of "crime guns" traced back to them per year, as compared to a law abiding gun dealer who may have one or two of their guns per year recovered from crimes. In fact, 86 percent of gun dealers had no "crime guns" traced to them at all. (2000 ATF Report)
The City of New York, under the leadership of Mayor Michael Bloomberg, has used ATF data from before 2003 to identify a handful of gun dealers who sold hundreds of guns that were used in crimes in New York City. The NYPD targeted those shops with undercover sting operations and confirmed what trace data strongly suggested - that many of these dealers ignore federal laws and standard industry practices with regard to identifying and deterring straw purchasers. Those are buyers who purchase guns for someone else or fill out federal background check forms for someone else who would not be legally allowed to do so for themselves because of their criminal record, age or other factors. Undercover officers acted out textbook cases of straw purchases over and over with no objection, and the city used video recordings of these transactions to sue 27 gun dealers for their reckless behavior.
These lawsuits have two objectives: to force gun dealers to obey the law, thereby reducing illegal gun trafficking into the city in the future; and to hold negligent gun dealers accountable for the entirely predictable harm caused by their past disregard for laws that are intended to prevent illegal gun trafficking. In some cases the city has been successful. Twelve gun dealers have settled, agreeing to strict monitoring of their sales practices by a court appointed special master, adherence to record keeping standards, provision of appropriate employee training, and ongoing random integrity testing.
But, as with any attempt to impose sanity on our gun policies in this country, no good deed goes unpunished. The gun lobby quickly pushed a bill through Congress to immunize the gun industry from liability - the Protection of Lawful Commerce In Arms Act (previously discussed by Professor Alan Morrison on TortDeform). While that disgraceful law preempted many civil claims and even legislated that some pending claims be thrown out, New York City's suits against dealers can proceed because they allege that the dealers actions constituted negligence per se because they violated state and federal laws intended to prevent harm that did in fact occur because of their actions. The gun industry immunity bill specifically allows these causes of action.
As if granting the gun industry immunity from most civil liability weren't bad enough, Congress took another even more insidious step. At the behest of the gun lobby, Congress attached riders to the last three appropriation bills for the ATF- the Tiarht Amendments - barring the ATF from sharing crime gun trace data with municipalities or local law enforcement, except for data relating to a specific crime. Yes, our "tough on crime" Republican Congress decided it would be a good idea to make it impossible for local police departments and city governments to analyze where the criminals in their communities are getting illegal guns. This provision makes it impossible for cities that bear the brunt of the illegal gun problem to either target their law enforcement resources effectively against illegal guns within their jurisdiction, or to identify the gun dealers outside their jurisdiction who are supplying illegal guns to their communities and seek to have their reckless behavior enjoined by the courts. The city had sufficient information from pre-2003 data for its current crop of lawsuits, but if the traffickers who are buying guns through straw purchasers shift their business to other willing dealers, New York and other municipalities will be unable to identify these new sources of illegal guns as long as ATF is barred from sharing trace data.
The effort to stop negligent gun dealers from supplying guns to criminals is multi-faceted. Mayor Bloomberg's litigation efforts have reached into other states because 85 percent of "crime guns" in New York City come from out of state. But in upstate cities like Buffalo, the majority of “crime guns” come from within New York State. That's why I sponsored a bill, S.2404A, to codify gun trafficking prevention measures into state law. (click here for bill search page)
Since negligent gun dealers in New York State are about as likely to be visited by an Ivory Billed Woodpecker as an ATF agent, my bill would bring state resources to bare to enforce anti-trafficking regulations - including mandatory training of store employees to spot straw purchases, record keeping requirements to facilitate identification of suspicious purchasing patterns or suspicious numbers of "lost" guns that might have been sold illegally, and safe storage requirements. It would also create a state cause of action that would not be preempted by the Protection of Lawful Commerce in Arms Act if dealers violated any of these regulations and the violation resulted in someone being injured or killed with one of their guns. Finally, my bill would require gun dealers to carry a minimum of $1 million in liability insurance. This will ensure that if a gun dealer is profiting from illegal gun sales, they will be the one to pay when someone is injured or killed as result. And, whatever New York State spends on additional enforcement will be more than recouped if we can reduce our share of the $100 billion per year that gun violence costs the United States annually (primarily from healthcare and lost productivity costs).
The State Assembly has passed such measures before, and I will continue to work with New Yorkers Against Gun Violence and other advocates to force action by the Senate's republican leaders, but legislation is not enough. The civil justice system has a critical role to play in stopping illegal gun trafficking. Successful suits can lead to court appointed monitors, and civil damages can change the economics of supplying the illegal market. The truly appalling aspect of gun industry's role in supplying the illegal market is not just that they are negligent, but the reason they are fighting so hard against effective measures to stop their behavior: they profit enormously from the carnage in cities like New York. It's that simple. Approximately 15 percent of the guns sold every year find their way into the illegal market - in the majority of cases because of negligent sales practices. Successful litigation could eliminate the profit motive for supplying the illegal market by preventing the industry from externalizing the costs of their negligence on to our communities.
But to realize the promise of the civil justice system when it comes to reining in illegal guns, we must lobby Congress to strip the Tiahrt amendment from this year's ATF appropriation. Future litigation against deadly negligence will not be possible if Congress continues to require the ATF to cover up critical evidence. Mayors Against Illegal Guns, lead by Mayor Bloomberg and Cincinnati Mayor Mark Mallory, has launched a website, www.ProtectPolice.org, to organize opposition against the Tiarht Amendment. I urge anyone interested to visit the website. Learn more about how this provision hampers both civil suits and criminal investigations, ultimately endangering all of us, but particularly our law enforcement officers who have to face armed criminals every day. And then sign up, and tell Congress to protect police instead of criminals.
Eric Schneiderman: Author Bio | Other Posts
Posted at 3:44 PM, Apr 19, 2007 in
Permalink | Email to Friend
