Gun Use in US Suicides Kept Secret With 2nd Circuit Ruling

This bar graph depicts the number of firearms regulated by the National Firearms Act by Fiscal Year from FY 2005 to FY 2020. (ATF graph via Courthouse News)

MANHATTAN (CN) — The U.S. government need not release statistics on guns used in suicides or attempted suicides, the Second Circuit ruled Wednesday, reversing what had been a victory for gun-regulation advocates.

Seeking such information as part of a push to curb gun violence in America, the group Everytown for Gun Safety Support Fund demanded that the Bureau of Alcohol, Tobacco, Firearms, and Explosives produce relevant records under the Freedom of Information Act. 

Demurring, however, the ATF argued that Congress had specifically blocked access to the Firearms Trace System database. The move centered on a series of amendments to the Consolidated Appropriations Acts of 2005, known as the Tiahrt Riders, first adopted in the early 2000s and updated in 2012. 

Last August, a federal judge in New York’s Southern District ordered the ATF to release records to Everytown, holding that the 2012 Tiahrt Rider did not offer exemption from Everytown’s FOIA request because it did not meet the requirements specified in the 2009 OPEN FOIA Act.

Reversing Wednesday, the Second Circuit ruled that the agency properly denied Everytown’s request because a prior statute “cannot prevent a later-enacted statute from having effect.”

“Ultimately the question before us is relatively straightforward: whether the 2012 Tiahrt Rider, either expressly or by implication, exempts FTS data from FOIA disclosure,” U.S. Circuit Judge Steven J. Menashi wrote for the court. “We conclude that it does.”

Menashi explains that, since “Congress does not use the same words to accomplish the opposite objective,” its intention was to reenact and strengthen its anti-disclosure language between 2009 and 2012 installments of the Tiahrt Rider, the latter of which pertains to the case. 

“Accordingly, FTS data remains exempt from FOIA disclosure, and the district court erred in concluding otherwise,” added Menashi, a Trump appointee.

Everytown is “considering all our options” after the ruling, the organization’s director of affirmative litigation, Alla Lefkowitz, noted.

“The public has the right to access government data on gun violence,” Lefkowitz said in an email Wednesday. 

“Today’s decision dramatically weakens the OPEN FOIA Act of 2009, which was passed precisely to ensure that the government would not keep information pertaining to favored industries secret.” 

Lefkowitz also called the Wednesday’s ruling ” at odds with a Ninth Circuit decision issued just weeks ago in a suit raising nearly identical questions.”

That Dec. 3 decision held that the Center for Investigative Reporting is entitled to request weapon ownership records from ATF. The court concluded that the 2012 Tiahrt Rider does not exempt FTS data because it was enacted after OPEN FOIA. 

Menashi acknowledged the disagreement in several footnotes, saying the Ninth Circuit “declined to consider, as we do here, whether ‘the Tiahrt Amendment of 2012 must conform to an earlier statute — the OPEN FOIA Act of 2009 — to be effective.’” 

Everytown made the FOIA request in December 2016, requesting “records related to traces of firearms used in suicide across several variables, including the length of time between purchase and use; the type of gun used; the state of use relative to state of purchase; and whether the user was the individual buyer.” 

The request concerned data on firearms, recovered by law enforcement and traced by the ATF, between 2012 and 2013. 

Saying the request was exempt from disclosure under FOIA’s Exemption (b)(3) statute, ATF rejected the request. 

The Department of Justice’s Office of Information Policy upheld the rejection, clarifying that information was publicly available for two of the requested categories. To access the remaining documents, Everytown filed suit in 2018. 

“We need the best information available to work on policies to prevent American gun violence, and that includes suicide,” Everytown attorney Eric Tirschwell said in a statement at the time. 

“The data we’re seeking is a potentially important missing piece for public health experts studying gun suicides, and we’ll do what it takes to make this important data public.”

Assistant U.S. Attorney Tomoko Onozawa, who represented the ATF, did not respond to a request for comment. 

Wednesday’s decision was unanimous with U.S. Circuit John M. Walker Jr. concurring. Though he had heard arguments on the case in October, U.S. Circuit Judge Ralph K. Winter Jr. died on Dec. 8. 

In the August ruling for Everytown, U.S. District Judge Alison J. Nathan determined that “ATF has not carried its burden of identifying a qualifying Exemption 3 statute,” and that fulfilling Everytown’s request would not require the agency to create new documents. 

Judge Nathan noted that, according to ATF, it would take about an hour to access documents for each year of data requested, or two hours total. 

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