United States District Court, E.D. New York
June 14, 2004.
JAQUIONE JOHNSON, Plaintiff,
BRYCO ARMS, et al., Defendants. JOAN TRUMAN SMITH, Plaintiff, v. BRYCO ARMS, et al., Defendants. CITY OF NEW YORK, Plaintiff, v. BERETTA U.S.A. CORP., et al., Defendants.
The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge
MEMORANDUM AND ORDER
On May 19, 2004 Magistrate Judge Pollak issued an order denying
the motion of the Bureau of Alcohol, Tobacco, Firearms, and
Explosives ("BATF") to quash the subpoenas of plaintiffs Johnson,
Smith and the City of New York for certain firearms tracing and
licensing data that BATF maintains in federal databases. City of
New York v. Beretta U.S.A. Corp., No. 00-CV-3641, slip op. at 36
(E.D.N.Y. May 19, 2004) ("May 19, 2004 Order"). BATF had asserted
that a provision of the Consolidated Appropriations Act of 2004,
Pub.L. No. 108-99, 118 Stat. 3 (2004), codified as amended at
28 U.S.C. § 530C ("2004 Act"), prevented it from disclosing this
The Magistrate Judge held that the 2004 Act does not prevent
BATF from disclosing firearms data to civil litigants pursuant to
subpoena when that data will remain subject to a protective
order. May 19, 2004 Order, slip op. at 28. Even if the 2004 Act
did apply, the Magistrate Judge found that it would only limit
BATF's power to expend appropriated funds to disclose firearms
data and thus would not be implicated if the expense of the data
production was borne by the parties. Id. at 28 n. 19.
BATF appealed. On June 8, 2004, after a hearing, this court
issued a brief order affirming the Magistrate Judge's decision
and staying the order to enable an appeal to the Court of Appeals
for the Second Circuit. This memorandum and order supplements the
June 8, 2004 order.
1) The Magistrate Judge's order of May 19, 2004 is affirmed for
the reasons stated on the record and below. 2) This court has an obligation, independent of any privilege
or statute, to ensure that its discovery and litigation
procedures are not abused to the benefit of criminals and to the
detriment of law enforcement. There is no evidence that the BATF
data released under the terms of the protective order in NAACP
v. Acusport Corp., 210 F.R.D. 268 app. B (E.D.N.Y. 2002), had an
adverse effect on police investigations or prosecutions. See
Transcript of June 8, 2004, at 9, 13. Adequate steps were taken
to ensure that sensitive data was kept confidential. The BATF
trace and licensing data released in the instant cases would have
There is no danger that the investigation into the Wendy's
massacre would be compromised. The two gunmen have already been
tried and sentenced. See Tr. at 18.
3) There is no indication that any privilege, law enforcement
or otherwise, would be affected by the release of the requested
data pursuant to the terms of a protective order. The Magistrate
Judge and this court will issue orders as needed to protect any
4) This court will not seal these proceedings without a clear
showing that the threat of open court hearings to law enforcement
is serious enough to outweigh the public's right of access to the
courts. Cf. The Hartford Courant Co. v. Pellegrino, ___ F.3d
___, 2004 WL 1244075, at *11 (2d Cir. June 8, 2004) (noting that
the openness of the courts to the public "greatly enhances the
appearance of fairness" in judicial proceedings). No such showing
has yet been made.
5) BATF first took the position that it could not disclose any
crime-gun trace data in open court. Tr. at 22-23. It subsequently
argued that it could release data in a criminal proceeding, but
not a civil one. Tr. at 24. To the extent that the 2004 Act could
be interpreted to prevent the cooperation of BATF with the courts
in amassing evidence in a murder prosecution, it would clearly
frustrate the ends of justice a result inconsistent with
congressional design. Similar considerations prevail in the instant cases which, although
civil, present substantial law enforcement concerns.
6) Whether or not the 2004 Act directly applies to disclosures
pursuant to judicial subpoena and subject to a protective order,
it is, by its terms and context, a cost-preserving provision. By
preventing the expenditure of "funds appropriated under this or
any other Act" to disclose firearms trace and licensing data to
the public, it is designed to protect the entire public fisc, not
simply the BATF's purse. Pub.L. No. 108-99, 118 Stat. 3 (2004)
(emphasis added). This court has the power to require that the
parties to a civil action reimburse a third party for its
expenses in producing subpoenaed data. See Fed.R.Civ.P.
45(c)(1) (persons subject to subpoena are to be protected from
undue burden or expense). In view of the serious economic
pressures on the public fisc, this court will provide for
reimbursement to the government by the parties using the data for
the costs expended by BATF in producing the requested data.
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