Complaint: Everytown v. ATF

July 23, 2015

Everytown for Gun Safety filed a lawsuit in the United States District Court for the Southern District of New York (Everytown v. ATF) seeking public records on crime guns from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The complaint was filed under the Freedom of Information Act and seeks public records containing aggregate data on guns recovered from crime scenes nationwide that ATF has successfully traced to their origins. This type of data – which the ATF has previously released – provides unique insights into how criminals acquire firearms and how traffickers move guns across state-lines, and is essential for the study of gun violence.

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OF ALCOHOL, TOBACCO,
NO:
STATEMEN T
(“FOIA”), (“ATF”) Everytown (“Everytown”), law enforcement a in a criminal
and of through a wholesaler and retail outlet, to its first “data” – 11
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
EVERYTOWN FOR GUN SAFETY,
))
Plaintiff,
) CIVIL ACTION
) DOCKET NO:_________
v.
))
COMPLAINT FOR
BUREAU OF ALCOHOL, TOBACCO,
FIREARMS, AND EXPLOSIVES.
) INJUNCTIVE RELIEF
))
Defendant.
))
PRELIMINARY STATEMENT
1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, et
seq., for injunctive and other appropriate relief, seeking to compel defendant Bureau of Alcohol,
Tobacco, Firearms and Explosives (“ATF”) to immediately process and release agency records
requested by plaintiff. It is brought by Everytown for Gun Safety (“Everytown”), a gun violence
prevention organization that conducts research on firearms policy and advocates for measures to
reduce gun crime and save lives.
2. When a law enforcement agency recovers a firearm in the course of a criminal
investigation, it can ask ATF to trace the firearm to gather information about its origins. ATF is
the sole federal agency authorized to trace firearms. Using the serial number and other details
about the manufacturer and model of the gun, ATF can typically trace the firearm from its
manufacturer, through a wholesaler and retail outlet, to its first purchaser. Whenever such a
query is made, ATF records the data obtained in the investigation — known as “trace data” — in
its Firearms Tracing System. In 2014, ATF responded to 364,441 trace requests.
Case 1:15-cv-05791 Document 1 Filed 07/23/15 Page 1 of 10
tie disclosure information specific particular ATF made similar aggregate agency records public upon request, with limited exceptions.
b Indeed, Congress expressly
“data” or recovered from crime scenes. person-to has a predecessor entity, Mayors Against (“MAIG”), in name the requests at issue in this action were filed. (In 2014, MAIG
For example, In research published 2013 analyzing – 22
3. In this action, Everytown seeks readily available aggregate trace data, none of which
requires the disclosure of information identifying any specific firearm, any particular firearms
dealer, or any individual firearm purchaser. Since 2006, ATF has made similar aggregate trace
data available to the public on its website, including a state-by-state breakdown of recovered and
traced firearms.
4. To promote transparency in government, FOIA requires federal agencies — including
ATF — to make agency records available to the public upon request, with limited exceptions.
But none of those exceptions apply to anonymous, bulk data. Indeed, Congress has expressly
instructed that the ATF must provide the public with “statistical aggregate data” of precisely the
sort that plaintiff seeks here. See, e.g., Pub. L. 110-161, 121 Stat. 1844.
5. There is a significant public interest in shedding light on the patterns of illegal gun
trafficking, and the aggregate data requested is among the most valuable sources of information
about firearms taken from unlawful possessors or recovered from crime scenes. Understanding
the circumstances under which illegal firearms have been transferred from person-to-person

and ultimately to crime scenes — is critical for learning how to better keep guns out of
dangerous hands.
6. Everytown has conducted extensive analysis and issued numerous reports using data
analogous to the data sought here, as has a predecessor entity, Mayors Against Illegal Guns
(“MAIG”), in whose name the requests at issue in this action were filed. (In 2014, MAIG
merged with another organization, Moms Demand Action for Gun Sense in America, to form
Everytown.) For example, in a 2010 report Trace the Guns, MAIG analyzed aggregate data to
describe where crime guns originate, where they are recovered in crimes, and which state gun
laws help curb the flow of these illegal weapons. In research published in 2013 analyzing the
Case 1:15-cv-05791 Document 1 Filed 07/23/15 Page 2 of 10
firearms law enforcement firearms have been trafficked This type of research analyzing
fundamental Everytown’s which uses empirical gun crime and violence. ATF’s duty public Everytown’s both subject matter jurisdiction this action and personal
a)(4)(B) and 552(a)(6)(A). pursuant to 28 U.S.C. §1331 and 5 C. §§ 701 2 5 million supporters more than 40,000 donors including and help save lives. core of Everytown former nearly banded sense gun grassroots
tragedy.
– 33
effects of a Missouri law repealing the state handgun background check system, Everytown used
trace data to show that the share of firearms traced by law enforcement which had originated in
the state (rather than in other states) increased substantially following repeal of the law, and the
share of firearms likely to have been trafficked doubled. This type of research analyzing
aggregate trace data is fundamental to Everytown’s work, which uses empirical evidence to
formulate public policies that will reduce gun crime and violence. ATF’s failure to comply with
its statutory duty under FOIA thus interferes not only with the public interest, but also with
Everytown’s core mission.
JURISDICTION AND VENUE
7. This Court has both subject matter jurisdiction over this action and personal
jurisdiction over the parties pursuant to 5 U.S.C. §§ 552(a)(4)(B) and 552(a)(6)(A). The Court
also has jurisdiction over this action pursuant to 28 U.S.C. §1331 and 5 U.S.C. §§ 701 – 706.
Venue lies in this district under 5 U.S.C. § 552(a)(4)(B).
PARTIES
8. Plaintiff Everytown is the largest gun violence prevention organization in the country
with more than 2.5 million supporters and more than 40,000 donors including mothers, mayors,
survivors, and everyday Americans who are fighting for public safety measures that respect the
Second Amendment and help save lives. At the core of Everytown are MAIG, a group of more
than 1,000 current and former mayors from nearly every state banded together to fight for
common-sense gun laws, and Moms Demand Action for Gun Sense in America, a grassroots
movement of American mothers founded the day after the Sandy Hook tragedy.
Case 1:15-cv-05791 Document 1 Filed 07/23/15 Page 3 of 10
of Justice. Justice (“DOJ”) itself a Department the Executive Branch the United States
empirical research into It reports its findings to the public in order to educate citizens In addition, based on its studies, Everytown crafts
for the passage of those reforms. Everytown’s predecessor “of America” which descried previously
trends. In 2010, the organization published second report entitled
“Guns,” report’s laws in “states” “states” The reports’ key fmding was that states which
highest have comparatively weak gun laws. The reports
sources were only possible as detailed MAIG obtained ATF pursuant to FOIA requests virtually
from the ones at issue here. In 2008, the organization FOIA request
– 44
9. Defendant ATF is a bureau housed within the Department of Justice. The Department
of Justice (“DOJ”) is itself a Department of the Executive Branch of the United States
Government and is an agency within the meaning of 5 U.S.C. §552(f)(1).
FACTS
10. Everytown conducts original, empirical research into the sources and causes of gun
violence. It reports its findings to the public in order to educate citizens about the costs and
benefits of various types of gun laws. In addition, based on its studies, Everytown crafts
evidence-based policies and advocates for the passage of those reforms. Its work with aggregate
trace data epitomizes this approach.
11. In 2008, Everytown’s predecessor organization, MAIG, published a groundbreaking
report entitled “The Movement of Illegal Guns in America” which described previously
unreported trends in the movement of illegal guns across state lines and analyzed some of the
factors that drove those trends. In 2010, the organization published a second report entitled
“Trace The Guns,” which updated the original report’s findings.
12. Both reports compared laws in the top “source states” for illegal guns — the states
where gun were initially sold — to the top “recovery states” for illegal guns — the states where
illegal guns were seized by law enforcement. The reports’ key finding was that states which
supply crime guns at the highest rates have comparatively weak gun laws. The reports
concluded that this association strongly suggested that gun traffickers favor as sources those
states with lax laws.
13. These conclusions were only possible as a result of the detailed analysis of bulk,
aggregate trace data that MAIG obtained from ATF pursuant to FOIA requests virtually
indistinguishable from the ones at issue here. In 2008, the organization filed a FOIA request
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trace data for “Crime” “Crime” ATF responded by saying it had only temporarily delayed disclosure “investigations;” “Crime” then, respond plaintiffs subsequent
though the records sought are virtually indistinguishable
This failure to release records containing PLAINTIFF’S ATF trace data. In particular, plaintiff requested records containing the request. Plaintiff on: guns “agency’s] Database,”
– 55
seeking records containing aggregate trace data for all recovered guns for the years 2006 and
2007, including their recovery states, source states, and “Time to Crime” (defined as the amount
of time between when a gun is sold by a dealer and its recovery during a criminal investigation).
14. ATF readily disclosed all but the “Time to Crime” data in 2009.
15. After receiving this initial data from ATF, MAIG inquired anew about release of the
missing statistics. ATF responded by saying it had only temporarily delayed disclosure to
“ensure that the information [] shared would not compromise ongoing investigations;” ATF then
agreed to disclose the “Time to Crime” numbers. Defendant Letter of March 4, 2010.
16. Since then, ATF has either denied or failed to respond to plaintiff’s subsequent
requests for updated trace data, even though the records sought are virtually indistinguishable
from those ATF released in the past. This failure to release records containing information vital
to a public debate — records that ATF is statutorily obligated to provide upon request — has left
Everytown no choice but to file this lawsuit.
PLAINTIFF’S FIRST REQUEST ON MARCH 13, 2013
17. On March 13, 2013, plaintiff submitted a FOIA request to defendant ATF seeking
updated, aggregate trace data. In particular, plaintiff requested records containing trace data
from 1998 – 2005, and from 2010 to the date of the request. Plaintiff sought records containing
information on: (1) Time to Crime data for traced guns sorted by source state; and (2) all source
states for each recovery state, including the number of guns recovered from all source states for
each recovery state.
18. On April 25, 2013, ATF rejected this request. According to ATF, “the information . . .
requested would only be available through a query of [the agency’s] Firearms Trace Database,”
and that this information could not be disclosed, Defendant Letter of April 25, 2013, despite the
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2009. The agency stated that “the ATF 2010 Appropriation Bill prohibits ATF from
Database.” bill that was in at ATF’s
trace data concluded ATF’s (“OIP”) Plaintiff acknowledged that the the been
Indeed, was for that reason that ATF had readily released that it had received plaintiff’s appeal. the 2010 appropriations bill “exempt[from non-very
information” plaintiff’s full request, order to expedite the request,
to Finally, further – 66
fact that this was the very same database from which the agency extracted the records it provided
in 2009. The agency stated that “the ATF 2010 Appropriation Bill prohibits ATF from
expending appropriated funds to disclose to the public the contents or any portion thereof of any
information maintained in the Firearms Trace Database.” Id. But the provision on which ATF
relied was also found in the 2009 appropriations bill that was in place at the time of ATF’s
earlier release of records containing aggregate trace data — which ATF concluded was not
restricted by the appropriations bill (or any other law or regulation).
19. On June 17, 2013, Plaintiff appealed ATF’s denial to the Office of Information Policy
(“OIP”) at DOJ. Plaintiff acknowledged that the cited appropriations provision barred disclosure
of trace data for specific, individual firearms, but explained that an exception to that ban allowed
for disclosure of records containing the type of aggregate statistical data that had been
requested. Indeed, it was for that reason that ATF had readily released similar data just a few
years earlier.
20. On July 23, 2013, OIP acknowledged that it had received plaintiff’s appeal. More
than fifteen months later, having heard nothing further from OIP (or ATF) regarding its appeal,
plaintiff contacted OIP on October 31, 2014 to ask for an update on its pending appeal. Plaintiff
reiterated that the 2010 appropriations bill “exempt[ed] from non-disclosure the very
information” plaintiff sought. Plaintiff Letter of October 31, 2014. Despite the absence of any
reason for ATF not to comply with plaintiff’s full request, in order to expedite the request,
plaintiff narrowed its request to only the years 2010 and 2011. Finally, to further expedite the
process, plaintiff offered to pay any costs incurred in processing the request in order to neutralize
any concerns about using appropriated funds to fulfill the request.
Case 1:15-cv-05791 Document 1 Filed 07/23/15 Page 6 of 10
plaintiff a that neither
received. That letter simply ATF’s initial
denial It did not address plaintiff’s contentions regarding ATF’s
PLAINTIFF’S two after aggregate trace data, dated May 30, 2013. 1
on of ATF’s Governmental via writing to within the next week. nor provided the promised
Again ATF’s unresponsiveness and an update the next day. Plaintiff never response its repeated informal that ATF’s 1 plaintiff also sought records containing data on compliance inspections of federally
firearms dealers. plaintiff’s May 30, 2013 FOIA
While Everytown constructive – 77
21. On December 5, 2014, OIP informed plaintiff that its original appeal had been denied
several months previously, providing plaintiff a denial letter dated July 28, 2014 that neither
plaintiff nor its counsel had previously received. That letter simply affirmed ATF’s initial
denial. It did not address plaintiff’s contentions regarding the 2010 appropriations bill or ATF’s
statutory duty to release records containing aggregate statistical trace data.
PLAINTIFF’S SECOND REQUEST ON MAY 30, 2013
22. Approximately two months after filing its March 13, 2013 FOIA request, plaintiff
filed a second request for records containing aggregate trace data, dated May 30, 2013. This
request asked specifically for records containing aggregate trace data related to guns recovered in
Missouri.1
23. On April 8, 2014, after having received no response to its request for nearly a year,
plaintiff contacted ATF for an update on the pending request. A representative of ATF’s Office
of Public and Governmental Affairs responded via email on April 11, 2014, writing that he
hoped to provide responsive records to plaintiff within the next week. But when three additional
months passed and neither the representative nor anyone else at ATF provided the promised
records, plaintiff again asked for a status update. Again via email, the representative apologized
for ATF’s unresponsiveness and promised an update the next day. Plaintiff never heard from
him again.
24. By the fall, a full year and a half after its initial request, and after months of awaiting
a response to its repeated informal requests for an update, plaintiff concluded that it had no
choice short of litigation but to consider ATF’s continued silence to be a constructive denial of
1 In the same request, plaintiff also sought records containing data on compliance inspections of federally
licensed firearms dealers. To date, ATF has failed to respond to this portion of plaintiff’s May 30, 2013 FOIA
request. While Everytown does not seek adjudication of this portion of its May 30, 2013 FOIA request in this
action, it reserves the right to appeal the constructive denial of this portion of its May 30, 2013 FOIA request at a
later date.
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Accordingly, ATF’s
with OIP. OIP acknowledged 24, 2014, OIP subordinate Thus, plaintiff apparent ATF simply as denial or to plaintiffs Accordingly, PLAINTIFF’S 10, third request records containing aggregate
Plaintiff’s third request sought a more targeted set of records: those containing
to lost or stolen. For the years 2004-2013, for those guns, specifically years plaintiff’s the general appropriations
denial appropriations plaintiff’s
first request. On January 6, 2015, OIP advised plaintiff that after “carefully
– 88
its request. Accordingly, on October 14, 2014, plaintiff filed an administrative appeal of ATF’s
constructive denial with OIP. OIP acknowledged receipt of the appeal in a letter dated October
28, 2014.
25. Shortly thereafter, however, on November 24, 2014, OIP advised plaintiff that it
would not review an appeal until a subordinate agency had affirmatively denied a request for
information in the first instance. Thus, plaintiff had no apparent means of obtaining the records
to which it was lawfully entitled: ATF simply refused to process its request and OIP declined to
treat this refusal as an effective denial or to consider plaintiff’s appeal. Accordingly, plaintiff
was left with no choice but to commence this action.
PLAINTIFF’S THIRD REQUEST ON APRIL 10, 2014
26. On April 10, 2014, plaintiff filed a third request for records containing aggregate
trace data. Plaintiff’s third request sought a more targeted set of records: those containing
aggregate trace data related to guns reported lost or stolen. For the years 2004-2013, plaintiff
sought records documenting: (1) the number of recovered stolen firearms by source state; (2) the
Time to Crime data for those guns, specifically those recovered less than two years after an
initial sale; and (3) the number of firearms recovered in different states than the ones in which
they were sold.
27. In July 2014, ATF denied plaintiff’s request, again citing the general appropriations
restriction on using funds to disclose trace data on individual firearms.
28. A month later, plaintiff appealed this denial. Plaintiff again explained that its request
fell squarely within the aggregate statistical data exemption to the general appropriations bar.
OIP acknowledged receipt of the appeal on August 29, 2014.
29. This time, OIP came to a different conclusion than it had in response to plaintiff’s
appeal on its first request. On January 6, 2015, OIP advised plaintiff that after “carefully
Case 1:15-cv-05791 Document 1 Filed 07/23/15 Page 8 of 10
your appeal, and as between Office,” request to “records.” “[fees.”
by Plaintiffs Defendant’s plaintiff’s
Plaintiff’s Defendant’s the records sought by plaintiff’s requests violates
Plaintiff’s
Defendant’s plaintiffs requests violates ATF’s – 99
considering your appeal, and as a result of discussions between ATF and this Office,” it was
remanding the request to ATF for a “search for responsive records.” The letter went on to note
that “[i]f ATF determines that records are releasable, it will send them to you directly, subject to
any applicable fees.”
30. Plaintiff has heard nothing from ATF since OIP ordered the agency to search for
responsive records more than six months ago.
CAUSES OF ACTION
First Cause of Action: Violation of the FOIA for Failure to Make Promptly Available the
Records Sought by Plaintiff’s Requests.
31. Plaintiff repeats and realleges paragraphs 1-30.
32. Defendant ’s failure to promptly make available the records sought by plaintiff’s
requests violates FOIA, 5 U.S.C. § 552(a)(3)(A).
Second Cause of Action: Violation of the FOIA for Failure to Release Records Sought by
Plaintiff’s Requests.
33. Plaintiff repeats and realleges paragraphs 1-30.
34. Defendant’s failure to release the records sought by plaintiff’s requests violates
FOIA, 5 U.S.C. § 552(a).
Third Cause of Action: Violation of the FOIA for Failure to Timely Respond to Plaintiff’s
Requests.
35. Plaintiff repeats and realleges paragraphs 1-30.
36. Defendant’s failure to timely respond to plaintiff’s requests violates FOIA, 5 U.S.C.
§ 552(a)(6)(A)(i), and ATF’s own regulations promulgated thereunder.
REQUESTED RELIEF
WHEREFORE, plaintiff prays that this Court:
Case 1:15-cv-05791 Document 1 Filed 07/23/15 Page 9 of 10
immediately plaintiff’s Murio4 — 1100
a) order defendant ATF to immediately and expeditiously process plaintiff’s FOIA requests and
to disclose the requested records, waiving all processing fees;
b) award plaintiff its costs and reasonable attorneys fees incurred in this action; and
c) grant such other relief as the Court may deem just and proper.
Respectfully Submitted,
/s/ Lawrence S. Lustberg
Lawrence S. Lustberg, Esq.
Ana Muñoz, Esq.
GIBBONS P.C.
One Gateway Center
Newark, NJ 07102-5310
(973) 596-4500
Dated: July 23, 2015
Case 1:15-cv-05791 Document 1 Filed 07/23/15 Page 10 of 10

Everytown v. ATF