City Wins Right to U.S. Data on Firearms

New York City won a significant victory this week in its civil suit against the firearms industry, winning the right to information that could help prove its claim that the industry closes its eyes to the way guns get into the hands of criminals.

On Wednesday, a federal magistrate ruled that the city was entitled to federal data that traces the path of guns used in crimes, overruling objections by the Justice Department. Lawyers say that without the data the city would have difficulty proving its claim that the gun industry's marketing and distribution practices amount to a public nuisance.

This is pure politics. New York City wants to sue gunmakers, but they have problems proving any kind of liability under existing law. In order to make their absurd legal theories hold together, they want access to the tracing data from the BATFE. The "trace data" is a list of guns that have had their ownership traced following some contact with law enforcement, anything from being seized by an overzealous traffic cop from someone with a concealed-carry license to a murder weapon. There aren't any legal standards about what it takes to run a trace; all it takes is a request from the law enforcement agency, and that request doesn't have to say how the gun was found.

Once the request is made, the process is simple. The BATFE calls up the manufacturer of the firearm and asks "What happened to the gun with serial number x?" The firearm manufacturer says something like, "We sold it to distributor y", so the BATF calls distributor y, who says "We sold it to gun shop z". The BATF calls gun shop z and finds out that it was sold to citizen a... and so on, until the name of the owner matches with the person who was found with the gun or they reach someone who won't talk. This process is supposed to document how an individual gun ended up where it did, and it does that fairly well, so long as everyone in the chain is cooperative.

But the trace isn't run on every gun recovered from a criminal, and it's run on some guns that are recovered in non-criminal circumstances. It doesn't represent a random sample, either; police will trace a gun that they think is unusual, or if they have a suspect they are trying to pin something on. There's no point in tracing the cheap handgun used by a stickup artist, but there's every incentive to trace a handgun recovered from a civil rights activist who "deserves" a little harassment. In short, the data is just about an unscientific as it gets.

That's why the aggregated data should stay out of the courtroom. Lawyers for the various anti-gun lawsuits want to do two things: first, cherry pick the data for scary anecdotes that seem to make their point, even if entirely unrepresentative; second, they want to play the "guilt by association" game.

What I mean by that is simple. The lawyers want to hold up a chart that says, "60% of all traced firearms in this region came from this store" or "30% of all traced firearms in this region came from this manufacturer". That doesn't mean the manufacturer or the dealer sold to a criminal or did anything illegal. Quite likely they didn't even sell the gun to the person it was recovered from; firearms can go through quite a few different hands, and once a private citizen owns it he's not required to say what happened to it -- meaning the trace stops after the dealer sells it.

And, of course, if a dealer has a 30% marketshare in the region to start with, why should we be confused if 30% of traced guns passed through his store? The only problem is that the trace data doesn't have that information; there's no way to reality-check the data and realize that it isn't really surprising.

Make no mistake, the anti-gun groups want this data to use in court before a sympathetic judge and a simple jury. They need those caveats because the aggregate data is essentially meaningless, and an honest judge or smart jury will see through them right away.

Unfortunately, this particular ruling means that we may need to depend on that smart jury. (Depending on an honest judge is fickle, at best). Although an appeal may be possible, there's no certainty of a better result, and if the data is provided while the appeal is pending, even a favorable appeal would leave the anti-gun groups in possession of the data (even if they could not use it in court).

This isn't the end of the road by any means, but it is a loss. It's also another one of the consequences of our mixed-blessing victory in the Senate.