Gun Owners of America (GOA) is suing the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) over a gag order placed on its lawyers.
On March 12, 2025, lawyers for GOA filed a motion to lift a protective order that has been in place since September 18, 2023. The order was put into place after GOA filed a Freedom of Information Act (FOIA) request with the ATF in 2021, “seeking records about a secret government surveillance program which unlawfully and unconstitutionally monitors and records the firearm purchases of American citizens who are perfectly eligible to purchase and possess firearms.” The ATF finally relented and handed over the documents, but instead of giving the redacted documents, the Bureau supplied the documents with without redactions. The ATF tried to “claw back” the documents by demanding that all documents be returned and copies be destroyed. GOA refused to give in to the ATF’s demands.
The ATF asked the courts for a protective order preventing the distribution of the unredacted files. The court granted a temporary protective order to the Bureau preventing the dissemination of the information to the public. Since that temporary protective order was issued, GOA was forced to withhold the documents. Now, it is asking the courts to allow the release of the papers because they are in the public interest.
The brief reads: “Relying on the asserted ‘implied power’ of courts ‘to issue a temporary protective order for inadvertently produced FOIA materials,’ this Court granted Defendant’s requests, issuing first an order to “sequester” (Sept. 18, 2023 Minute Order) and subsequently a protective order (ECF #30) that ‘plaintiffs and their counsel’ ‘shall sequester’ and ‘shall not disseminate, disclose, or use for any purpose those records or the content of those records.’”
A motion for summary judgment was filed in December 2023. The court never ruled on the motion, meaning the case has been frozen in limbo. Because the court has not issued a judgment, the case could not be appealed. It is unusual for a case to be frozen for 17 months. The court has also refused to hold a closed hearing multiple times, which would have protected the content of the documents.
The brief reads: “Thus, for the past 17 months, Plaintiffs – members of the press – have been prohibited from printing the news, while Plaintiffs’ lawyers have been prohibited from communicating with their clients, advocating for their clients’ interests, or even accessing portions of their own attorney work product. Further, this Court has denied Plaintiffs’ repeated requests (ECF ##25, 28, 33) to consider the basis of its order, declining to hold a closed hearing or to consider the document production in camera. Thus, this Court has prohibited Plaintiffs and their lawyers from speaking and printing the news without knowing the content of the speech or news being prohibited. Meanwhile, this Court has not resolved Defendant’s December 2023 Motion for Summary Judgment or otherwise issued a final judgment in the case which Plaintiffs would be able to appeal.”
In January 2025, the D.C. Circuit Court ruled unanimously in Human Rights Defense Center v. U.S. Park Police that federal agencies lack the power to “claw back” FOIA responses. This case is in the same Circuit as the case mentioned earlier. There is no reason to believe that the D.C. Circuit Court would reach a different conclusion since both cases deal with an agency trying to “claw back” an unredacted FOIA response. The ATF continues to ask the court to maintain the protective order.
The brief reads: “The D.C. Circuit’s decision could not be more on point and directly controlling of the outcome of this case. But Defendant speculates otherwise. In an attempt to narrow the D.C. Circuit’s repudiation of inherent ‘claw back’ authority, Defendant points to the D.C. Circuit’s expression of “no opinion” on information “subject to any independent legal prohibition on disclosure such as applies to classified documents….” ECF #35 at 2 (emphasis added) (quoting Hum. Rts. Def. Ctr., 2025 U.S. App. LEXIS 1586, at *20-21) Defendant thus likens “information that is ‘specifically exempted from disclosure by statute’” to classified information not at issue here.”
There are certain times when the plaintiffs could block information, but GOA points out that none of those reasons apply in this case. One reason is that the information could be classified because of national security. The plaintiffs claim that the unseen information isn’t classified, and the defendants never argue that it is a matter of national security.
GOA points out that even if the documents were classified, which they are not, they still would not be entitled to a “sweeping protective order.” Only portions of the papers affecting national security would be eligible for protection via a protective order. The plaintiffs seem to be trying to head off the ATF using this provision as an excuse to block the release of the documents to the media and the public.
The plaintiffs claim that the ATF is ignoring the constitutional basis of the D.C. Circuit’s decision. The D.C. Circuit noted the government’s failure to show “any documented historical practice of permitting the government to claw back information it accidentally disclosed in a FOIA production.” This case falls under the same principle. Since the Circuit Court has already decided on the principle, the District Court is bound by the precedent.
The plaintiffs also make a First Amendment claim. This case isn’t the first time the lawyers have argued a First Amendment challenge. Two of the attorneys on the case, Robert Olson and Stephen Stamboulieh, have defended this reporter in a case where the ATF tried to place a gag order on me, claiming that it could prevent the reporting of leaked documents. The lawyers forced the ATF to drop its motion.
About John Crump
Mr. Crump is an NRA instructor and a constitutional activist. John has written about firearms, interviewed people from all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons, follow him on X at @crumpyss, or at www.crumpy.com.
