In late June, Joe Biden announced a new zero-tolerance policy for “rogue gun dealers,” who he claimed were responsible for skyrocketing violent crime rates in major cities historically controlled by Democrats.

The violence wasn’t caused by weak prosecutors who refuse to hold criminals accountable, or gangs or underfunded police departments or by any combination thereof. It was all the fault of “rogue gun dealers,” who Biden claimed willfully transfer firearms to prohibited persons, and/or refuse to cooperate with a tracing request from the Bureau of Alcohol, Tobacco, Firearms and Explosives.

Biden’s illogical rant produced a bit of head scratching among the gun-rights community. After all, why target Federal Firearm Licensees, who are arguably the most heavily regulated federal license holders. If Joe really wanted to reduce violent crime, why not go after the real criminals instead, such as the 100,000 documented gang members living in Chicago. Hit them with federal RICO statutes, or fire the cowardly prosecutors who won’t send them to prison, or both. It all made no sense, unless of course Biden’s entire plan was nothing more than a pretext to make life even more hellish for American gun owners, which we all knew was the case. However, saying that a president is lying and proving that he’s lying are two different things. We went for the proof.

To vet Biden’s rogue gun dealer theory, the Second Amendment Foundation’s Investigative Journalism Project immediately sent a Freedom of Information Act (FOIA) request to the ATF, seeking the following:

Copies of documents that show the number of Federal Firearms Licensees (FFLs) and their state of residence, who have been prosecuted for willfully transferring a firearm to a prohibited person over the past three years (from June 23, 2018 to June 23, 2021.)

Copies of documents that show the number of Federal Firearms Licensees (FFLs) and their state of residence, who have been prosecuted for ignoring and/or refusing to cooperate with a tracing request from the BATFE, over the past three years (from June 23, 2018 to June 23, 2021.)

(Note: We did not seek the names or other identifiers of any FFL.)

 

I wish I could take credit for the idea, but I can’t. It was Mr. Gottlieb’s, and it remains one of the cleverest strategies I’ve seen in a long time. Alan Gottlieb is the executive vice president and founder of the Second Amendment Foundation.

Our FOIA request was pretty simple, and it would definitely prove or disprove Biden’s claims, which everyone, even the ATF, likely knew were false. If the rogue dealers were responsible for the increasing violence, there should be hundreds if not thousands of prosecutions and subsequent FFL revocations. If Biden’s claims were false, there would likely be a half-dozen prosecutions in the entire country.

I need to point out this wasn’t my first FOIA. During my years as an investigative reporter and editor, I made hundreds of FOIA requests – local, state, federal and even a few territorial. After your first 100 or so, you start to learn what is in-bounds for FOIA and what isn’t. You also get to know how long a response should take. This request was an easy one – a couple of keystrokes and it’s done. It should have taken a few hours at the most, certainly not days, or even weeks, and definitely not eight months.

Four months passed without a word from the ATF – not even an acknowledgement they had received the FOIA request. Then, in October, the ATF finally admitted it had received the request, but warned it might take even longer to process.

“For your information, this office assigns incoming requests to one of three tracks: simple, complex, or expedited. Each request is then handled on a first-in, first-out basis in relation to other requests in the same track. Simple requests usually receive a response in approximately one month, whereas complex requests necessarily take longer. At this time, your request has been assigned to the complex track,” the ATF letter states.

The letter also provided the names of two FOIA liaisons, Darryl Webb and Zina Kornegay. Months of calls and messages left for these alleged liaisons were not returned.

This week, however, after another four months had passed, Kornegay finally answered her phone.

“I’m seeing a bit of back-and-forth,” she said of the request. “Let me look into this further. I will try and find out what’s going on with this.” She refused to say when the ATF would actually respond to the FOIA request. “Let me speak to my team leader,” she said. “I do see your request, but there seems to be some back-and-forth about the best way to handle it.”

 

Toothless law

The Freedom of Information Act is federal law. The ATF is a federal law enforcement agency, responsible for enforcing federal law. In a perfect world, that alone should be enough reason for the ATF to quickly comply with any and all FOIA requests. Unfortunately, the ATF’s world is far from perfect.

The Biden-Harris administration has weaponized the agency and given it specific orders to infringe upon our right to keep and bear arms. That much is abundantly clear. No law – especially one as anemic as the federal FOIA statute – will stop the ATF from targeting gun owners and gun dealers.

If the ATF or any other federal agency fails to comply with a FOIA request, the requestor doesn’t have many options They can file a lawsuit, and if a federal judge determines the agency acted “arbitrarily or capriciously,” the court can assess attorney fees, which will be paid with taxpayer dollars.

Also, the U.S. Office of Special Counsel can investigate a FOIA dispute. The OSC can determine whether discipline against the federal employee who improperly withheld the records is warranted, and the offending agency must take whatever corrective action the OSC mandates, but these actions are extremely rare. Actual federal FOIA-related criminal cases are even rarer, practically unheard of.

As a result, most federal agencies – especially one as heavily politicized as the ATF – know there is no easy or timely way that they can be forced to turn over documents they want to conceal from the public.

By comparison, many states have FOIA-type laws that have actual penalties, especially Florida. In the Gunshine State, knowingly violating public records law is a first-degree misdemeanor, punishable by up to one year in prison, a $1,000 fine or both. Why the federal government does not have a tough FOIA statute is a question for your elected officials.

Options

The ATF is in a trick-bag of sorts. They can comply with federal law and provide the documents, which will likely reveal that Biden’s rogue gun dealer policy is just a ruse concocted by anti-gunners, or they can continue to deny and delay the FOIA request even though their actions violate federal law. I’m starting to wonder if there is anyone left at the ATF who even cares about such things.

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