<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:26765.wais]
BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES (BATFE): REFORMING
LICENSING AND ENFORCEMENT AUTHORITIES
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
MARCH 28, 2006
__________
Serial No. 109-114
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
HOWARD COBLE, North Carolina, Chairman
DANIEL E. LUNGREN, California ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida MAXINE WATERS, California
STEVE CHABOT, Ohio MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida WILLIAM D. DELAHUNT, Massachusetts
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas
Michael Volkov, Chief Counsel
David Brink, Counsel
Caroline Lynch, Counsel
Jason Cervenak, Full Committee Counsel
Bobby Vassar, Minority Counsel
C O N T E N T S
----------
MARCH 28, 2006
OPENING STATEMENT
Page
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Chairman, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 1
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia, and Ranking Member, Subcommittee on
Crime, Terrorism, and Homeland Security........................ 2
WITNESSES
Ms. Audrey Stucko, Deputy Assistant Director, Enforcement
Programs and Services, Bureau of Alcohol, Tobacco, Firearms,
and Explosives (BATFE)
Oral Testimony................................................. 4
Prepared Statement............................................. 7
Mr. Richard E. Gardiner, Attorney at Law, Fairfax, Virginia
Oral Testimony................................................. 15
Prepared Statement............................................. 17
Lt. Michael James Lara, Tucson Police Department, Tucson, Arizona
Oral Testimony................................................. 20
Prepared Statement............................................. 22
Ms. M. Kristen Rand, Legislative Director, Violence Policy Center
Oral Testimony................................................. 30
Prepared Statement............................................. 31
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Robert C. Scott, a
Representative in Congress from the State of Virginia, and
Ranking Member, Subcommittee on Crime, Terrorism, and Homeland
Security....................................................... 53
Prepared Statement of Bruce R. Barany, Co-Owner, The General
Store, Spokane, Washington..................................... 54
Prepared Statement of James. M. Faircloth, Owner, Jim's Pawn
Shop, Inc., Fayetteville, North Carolina....................... 58
Prepared Statement of Stanton Myerson, Owner, Lou's of Upper
Darby, Inc., Upper Darby, Pennsylvania......................... 61
BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES (BATFE): REFORMING
LICENSING AND ENFORCEMENT AUTHORITIES
----------
TUESDAY, MARCH 28, 2006
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:04 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Howard
Coble (Chairman of the Subcommittee) presiding.
Mr. Coble. Good afternoon, ladies and gentlemen. We are
scheduled to have four witnesses on this panel and I see two
have been seated--and a third--and a fourth. Very well.
Today, ladies and gentlemen, the Subcommittee on Crime,
Terrorism, and Homeland Security will receive testimony from
two panels of witnesses. The first panel has been called to
assist the Subcommittee's oversight on the civil and criminal
enforcement efforts of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives, popularly known as ATF. Specifically,
this panel will review ATF enforcement authorities and the
possibility of civil penalties for minor violations; ATF
administrative process and procedures for licensing of Federal
firearm licensees, FFLs, to ensure that licensees are provided
adequate and expeditious due process; and ATF allocation of
enforcement resources.
This review will help Members of this Subcommittee to
determine if legislation is in fact needed to assist the ATF in
accomplishing its mission and to ensure adequate and timely due
process for FFLs. The ATF must be able to regulate FFLs in a
fair and expeditious manner. Unfortunately, the ATF authorities
limit potential penalties to only revocation or no penalty at
all, which leaves little or no middle ground for fair
resolution.
This could also drain the ATF's limited enforcement
resources, which may be better utilized by focusing on FFLs
posing the greatest threat of harm to the public. ATF should
not waste valuable resources worrying about ministerial errors
committed by licensees; rather, they should focus, it seems to
me, on those licensees who willfully violate the laws and
regulations and pose a threat of significant harm.
Similarly, when it comes to criminal prosecutions of
individuals, ATF and the Department of Justice should focus on
those truly bad actors. Prosecutions that are aimed at only
padding case statistics--and I am not suggesting that that is
done. But if it is done, it not only wastes Government
resources, but could tarnish law-abiding citizens' reputation
as well and cause individuals severe financial distress.
We look forward to our witnesses' testimony today and hope
that it can shed some light on how Congress can do its part to
ensure, one, that individual civil liberties are respected, and
two, that the ATF has effective tools at its disposal to
fulfill its mission of investigating violations of our Nation's
gun laws.
I am pleased to welcome our panelists and I am now equally
pleased to recognize the distinguished gentleman from Virginia,
the Ranking Member, Mr. Bobby Scott.
Mr. Scott. Thank you, Mr. Chairman. I am pleased to join
you in convening this hearing on ATF licensing enforcement
authority. We have held two previous hearings on ATF gun law
enforcement activities; this hearing focuses primarily on ATF
gun licensing, issuing, and regulations, procedures, and
practices.
I believe there are several areas in the current licensing
regulations that we can all agree need some change. Adding fine
and suspension authority to the current revocation-only
authority for licensing violations is one such area that I
think there will be general agreement.
I believe that in according due process, the appearance of
impartiality is an important component. While there is nothing
to establish that ATF-appointed employees cannot serve as fair
and impartial hearing officers, I believe that the appearance
of impartiality is served by having those officers from a
different agency or appointed source.
I am open to the suggestion that ATF could benefit from a
study of its operations and resource allocations and from
general operational guidelines relative to enforcement
activities, as with other agencies under the Department of
Justice.
Whatever we may do legislatively, Mr. Chairman, I believe
that our goal should be to improve the operational
effectiveness as well as the fairness of the ATF's gun law
enforcement and licensing responsibilities. That Agency has an
important function and responsibility with respect to the
enforcement of our Federal gun laws, and while we all want to
ensure that these functions and responsibilities are applied in
a manner that promotes and supports the respective citizens
they affect, we don't want to do it at the expense of diligent
and effective law enforcement.
So, Mr. Chairman, I know our staffs are working on
legislation that will reform some of ATF's current enforcement
procedures and options. It is my hope that we will come up with
legislation that reflects improvements on what we can agree on
a bipartisan basis and also those that both gun control as well
as gun rights advocates can support.
I look forward to the testimony by witnesses relative to
these issues and look forward to working with you toward the
end of bipartisan, generally supported improvements on ATF gun
enforcement operations.
Thank you, Mr. Chairman.
Chairman Coble. I thank the gentleman from Virginia.
Let me at this time recognize our witnesses. We have four
distinguished witnesses with us today. Our first witness is
Audrey Stucko, Deputy Assistant Director for Enforcement
Programs and Services at the Bureau of Alcohol, Tobacco, and
Firearms. Ms. Stucko began her career with ATF in 1977, working
in a variety of positions in New York City, Philadelphia,
Baltimore, and Washington, D.C. Prior to her current position,
she worked as Chief of the Firearms and Explosives Services
Division and as the Chief of Staff for the Enforcement Programs
and Services Directorate.
Our second witness is Mr. Richard Gardiner, attorney at law
in Fairfax, Virginia. Mr. Gardiner is a sole practitioner with
emphasis on criminal defense in Federal and State courts. He
has briefed and argued criminal and civil appeals before
multiple circuits of the United States courts of appeals and
the United States Supreme Court. Mr. Gardiner has also
previously testified before the Congress and the Virginia
General Assembly. He earned his bachelor's degree from Union
College and was awarded his J.D. degree from George Mason
University--as an aside, Mr. Gardiner, an institution unknown
to virtually no American today.
Our third witness is Lieutenant Michael Lara, Commander at
the Tucson Police Department. Lieutenant Lara started his law
enforcement career in 1977 as a State-certified police officer
in Crown Point, Indiana, and moved up the ranks to become a
detective and ultimately a supervisor. He previously taught
criminal justice classes at the Pima Community College.
Lieutenant Lara received a bachelor's degree from Indiana
University, a master's degree from Norther Arizona University,
and is a graduate of the FBI National Academy in Quantico,
Virginia.
Our final witness today is Kristen Rand, Legislative
Director for the Violence Policy Center. In this capacity, Ms.
Rand is responsible for the VPC's policymaker education efforts
and directs the organization's research on Federal firearms
policy. Previously she worked as counsel to the Washington
office of Consumer's Union. Ms. Rand is the author of numerous
studies on gun policy, including Gun Shows in America. She
earned her undergraduate degree from the University of Southern
California and her J.D. was awarded to her from the George
Washington University.
Good to have you all with us. It is our custom to swear in
all witnesses, so if you all would please stand and raise your
right hands.
[Witnesses sworn.]
Chairman Coble. Let the record show that each of the
witnesses answered in the affirmative. You may be seated.
Good to have you all with us. Now, as we have previously
advised you, we are not completely inflexible but we do operate
under the 5-minute rule. So if you all could confine your
statements on or about 5 minutes, we--Mr. Scott and I do not
become violent, but if you go too far astray, I may tap the
gavel. Your warning sign will be when the amber light appears
on the panel before you. That is your indicator that you have a
minute remaining.
Ms. Stucko, why don't you start us off.
TESTIMONY OF AUDREY STUCKO, DEPUTY ASSISTANT DIRECTOR,
ENFORCEMENT PROGRAMS AND SERVICES, BUREAU OF ALCOHOL, TOBACCO,
FIREARMS, AND EXPLOSIVES (BATFE)
Ms. Stucko. Good afternoon, Chairman Coble, Congressman
Scott, and Members of the Subcommittee. Thank you for the
opportunity to appear before you to discuss the significant
contributions of the Bureau of Alcohol, Tobacco, Firearms, and
Explosives relating to our administration of the licensing
provisions of the Gun Control Act of 1968.
I appreciate this opportunity to outline for the
Subcommittee ATF's regulation of Federal firearms licensees,
which I will refer to as FFLs. I will begin with the
application and license issuance process and then address
voluntary FFL compliance, which is ATF's primary goal.
All applicants for a license submit an application to ATF's
licensing center in Atlanta. The applicant and any corporate
officers, directors, or managers are subject to National
Instant Check System background checks, and assuming none are
felons or otherwise fall within a category of prohibited
persons, the application is then sent to the ATF field division
where the applicant is located.
At that point, an Industry Operations Investigator, an IOI,
conducts an interview to verify the identity of the applicant,
verify that the applicant has a permanent location that will be
available to ATF's statutorily authorized inspections, and to
review with the application the laws and regulations governing
the operation of the applicant's firearms business. This
process benefits applicants by providing them with information
to assist them in operating their business in compliance with
the law.
Once the field is satisfied that the applicant meets all
the statutory criteria for licensing, the licensing center is
then directed to issue the license. ATF attempts to complete
the license process within 60 days, but the time period can be
extended when complications arise in connection with criminal
background checks or necessary zoning variances.
ATF continues to educate licensees concerning their
obligations under the law through the issuance of open letters
that are mailed to FFLs and posted on the ATF Web site, through
quarterly FFL newsletters and by attending industry conferences
and trade shows to answer questions from licensees. We also
provide FFLs with our Federal Firearms Regulations Reference
Guide, which includes the laws, regulations, and other
information about conducting a firearms business under Federal
law.
With certain exceptions, the Gun Control Act limits ATF to
one annual compliance inspection of an FFL's firearms records
and inventory each year. There are currently over 105,000
Federal firearms licensees, and ATF conducts approximately
4,000 inspections of firearms licensees each year. The purpose
of the inspection program is to determine whether an FFL is
complying with the law and regulations, and if not, to obtain
voluntary compliance. Voluntary compliance is encouraged by
educating FFLs about the requirements of the law and
regulations and by issuing Notices of Violation that outline
the specific violations of the law and regulations that were
discovered during the inspection. IOIs go over the violations
outlined in the notice that the FFLs to make sure they
understand how their business operations fell short and how to
avoid violations in the future.
In the event the violations are willful, the licensee may
receive a warning letter from the field division or may be
asked to attend a warning conference to discuss the violation
and how it may be avoided in the future. If the violations are
willful and it is determined that voluntary compliance is
unlikely or that continued operation of the FFL poses a threat
to public safety, the field division may recommend that the
license be revoked.
Under the Gun Control Act, license revocation may be
undertaken for any willful violation of the law or regulations.
The term ``willful'' is not defined in the law, but Federal
courts have consistently defined it to mean that the FFL knew
of the legal requirements at issue and disregarded or was
plainly indifferent to these requirements. This interpretation
of willfulness is consistent with that applied in
administrative proceedings held by a number of other Federal
agencies.
ATF has issued guidance to all field divisions outlining
the types of violations that are suitable for warning letters,
warning conferences, and revocation of licenses. The guidelines
were issued to ensure consistency in administering the statute
throughout the United States.
A review of Agency data indicates that ATF typically
revokes fewer than 100 licenses per year on the basis of
willful violations of the law and regulations. This represents
2.5 percent of all licensees inspected annually and about .1
percent of the total FFL population. In the vast majority of
these revocations, ATF has already provided the licensee with
an opportunity to comply and previously issued Reports of
Violation or warning letters or held warning conferences.
Moreover, in almost all cases, the Federal district courts have
upheld the Government's actions. For example, in the past 5
years, 33 of 36 Federal district courts reviewing ATF's license
denial or revocation decisions have upheld those
determinations. Further, only one of the three adverse
decisions has resulted in an award of fees and costs against
the Government.
Again, our goals are voluntary compliance and educating
FFLs about their obligations under the law and encouraging
business practices that bring about this result. ATF typically
resorts to license revocation only when it is clear that
voluntary compliance is unlikely and that continued operation
of the firearms business is not in the public's interest.
Currently, license revocation hearings are held before ATF
hearing officers and the proceedings are informal, where the
rules of evidence and other judicial rules do not strictly
apply. Because the hearings are informal, FFLs often choose to
represent themselves. After the hearing, the Director of
Industry Operations, who oversees a Division's regulatory
operations, issues a final decision. During the administrative
proceedings, the FFL may continue to operate the firearms
business. Thereafter, the FFL can proceed to Federal district
court for review of the revocation or denial decision.
Because a firearms license revocation is subject to trial
de novo, a legal term which means the court can allow new
testimony and evidence that was not considered at the
administrative hearing, ATF revocation proceedings do not meet
the formal adjudication requirements of the Administrative
Procedures Act. This makes the proceedings more amenable to
unrepresented FFLs who have chosen to proceed without counsel.
ATF hearing officers are trained to accommodate the
unrepresented licensees.
We hope this information will assist the Committee in its
oversight efforts, and I look forward to answering any
questions that the Subcommittee may have.
[The prepared statement of Ms. Stucko follows:]
Prepared Statement of Audrey Stucko
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Coble. Thank you, Ms. Stucko.
Mr. Gardiner.
TESTIMONY OF RICHARD GARDINER, ATTORNEY AT LAW, FAIRFAX,
VIRGINIA
Mr. Gardiner. Thank you, Mr. Chairman.
Mr. Chairman and Members of the Committee, thank you for
the opportunity to testify today on the need to reform the laws
under which the ATF operates. There are four major problems
with the current process for civil enforcement against Federal
licensees which I would like to address.
The first, and most critical, is the fact, as Ms. Stucko
mentioned, that there is no legal--there is no definition in
the statute of the term ``willful.'' And as I will explain
later, the interpretation that the Government pushes for in
these cases is quite contrary to what Congress had in mind, if
one reviews the legislative history of the Firearms Owners
Protection Act of 1986.
Second, the ATF tends to focus, or has a significant focus
on trivial, immaterial violations which are unrelated to public
safety, and they impose unreasonable standards of perfection
which are simply not humanly achievable.
And lastly, the hearing process that Ms. Stucko mentioned
is heavily stacked against the licensee and makes those
proceedings essentially sham proceedings, which make them
essentially worthless.
As I mentioned, first of all, ATF treats virtually all
errors in dealers' records, no matter how few or how minor, as
willful violations if the dealer--if they can show the dealer
had been warned prior to what the law requires. Now, of course,
all dealers know what the law is, so that is not very difficult
to demonstrate.
Let me give you a couple of examples. One is in a number of
cases that I have been involved in, the purchaser of the
firearm put on the form where he had to answer Yes or No, he
put a Y or an N. ATF used that as a basis for revoking the
person's license. Now, that wasn't the sole reason, but it
was--it is in a number of occasions a basis for revoking the
license, because the customer put down Y or N and not the word
Yes or No.
Another example is that ATF, the form requires that in
addition to the city and State and Zip Code of the person's
place of residence that he also put the county of residence.
ATF has revoked licenses or sought revocation of licenses on
many instances based on the failure of the licensee to put down
the county, even though the residence address was crystal clear
from the city, State, and Zip Code which was put down.
As I mentioned, this is clearly not what Congress had in
mind when it enacted the ``willful'' standard in 1986. As the
Senate Judiciary Committee report stated, the purpose of adding
``willfully'' to the license revocation procedure is--and I
quote--``to ensure that licenses are not revoked for
inadvertent errors or technical mistakes.'' But that is
precisely what ATF is doing. It argues that that standard
should not apply. And unfortunately, as Ms. Stucko indicated, a
number of courts have agreed with ATF that inadvertent errors
and technical mistakes are a basis for revocation and has
upheld revocations for exactly that reason.
In one case, in fact, ATF actually argued to the judge that
Congress's addition of the word ``willfully'' to the statute
was--and again I quote--``without practical significance.'' And
because several courts have agreed with ATF's interpretation,
that definition of ``willful'' is the one that ATF has
continued to apply.
Congress should make clear that ``willful'' means that the
licensee had an intent to violate the law and did so with that
intent.
Second of all, ATF revokes licenses for violations which
could not possibly create any danger to public safety. For
example, in one case in Illinois which was just ruled on by the
Seventh Circuit, the individual had not listed on the Form 4473
the type of ID presented. But in each instance the customer's
driver's license number, the State firearms identification card
number, or both, were recorded on another document which was
attached to the Form 4473. Yes, the information should have
been transposed over to the Form 4473, but there was nothing
there that would have prevented an effective background check,
nor would it have prevented in any way the tracing of firearms.
The last point I would make is with regard to the license
revocation process which Ms. Stucko mentioned. It is a license
process that is stacked against the licensee. In 1986, after
passage of the Firearms Owners Protection Act, ATF actually
repealed the regulation which required hearings to be held by
an administrative law judge, and since then, hearings are held
by an ATF employee with no legal training, usually an
investigator from another field division or even retired ATF
employees. It would be an understatement to say that these
hearing officers are deferential to the Agency. They are the
Agency.
I would give one example that I think really summarizes
that. At one of the hearings that I participated in, I had made
a motion to dismiss the proceeding on some procedural grounds.
The hearing officer turned to the attorney representing ATF in
this hearing and asked, What should I do? The ATF counsel
instructed him to deny the motion, and that is what the hearing
officer did.
This creates the--along the lines of Representative Scott's
comments--at least the impression that these hearings are not
being conducted in a fair and neutral manner. We would urge--I
would urge that Congress reimpose by statute the requirement
that administrative law judges conduct these hearings so that
the licensees--so that there is not only the actuality of
fairness, but the impression of fairness.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Gardiner follows:]
Prepared Statement of Richard E. Gardiner
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Coble. Thank you, Mr. Gardiner.
Lieutenant Lara.
Mr. Lara. Thank you, Chairman Coble, Representative Scott.
Mr. Coble. Excuse me just a moment. We have been joined by
the distinguished gentleman from Florida, Mr. Feeney. And I
thought I saw the Ranking Member for the Full Committee here,
Mr. Conyers, from Michigan. Perhaps he will return.
Lieutenant, proceed.
TESTIMONY OF MICHAEL JAMES LARA, TUCSON POLICE DEPARTMENT,
TUCSON, ARIZONA
Mr. Lara. Thank you, Chairman Coble, Representative Scott,
and Members of the Subcommittee for allowing me to tell you my
story. I am Michael Lara from Tucson, Arizona. Currently I am a
lieutenant on the Tucson Police Department and have been a law
enforcement officer for 28 years.
In 2003, I had prospects of growth and promotion. At that
point, I was a patrol commander, when my life was altered after
ATF charged me with making a false statement on a firearms
purchase form. In 2002, I had purchased a handgun and then gave
it to a friend. My friend was a law-abiding citizen and had
been authorized by the Arizona State Police to carry a
concealed weapon.
On the firearms purchase form, it asked whether or not I
was the actual buyer of the firearm. After reading the
definition of what an actual buyer was, I answered yes on the
form. At one point, ATF had cause to review the purchase of the
firearm. The firearm had not been used in any criminal
situation, and yet my department conducted an internal
investigation and later found me innocent of any wrongdoings.
During this internal investigation, I gave one statement,
the focus of which was not the purchase form that I had filled
out. After the internal investigation, I was left on
administrative leave while ATF continued their investigation,
which took 7 months. Three months later, ATF indicted me,
claiming that I had not purchased a firearm as a gift, but that
I had actually bought it for my friend using her money. This
type of purchase is often referred to as a straw purchase, and
the law prohibits a straw purchase to prevent prohibited
possessors from obtaining guns.
After charges were filed, I was fired from the Tucson
Police Department. Three weeks later, I had a hearing in a U.S.
district court, at which point I was physically arrested and
subjected to prisoner processing before being released on my
own recognizance. Three months after my arrest, my case went to
trial. At the end of the trial, the jury deliberated less than
1 hour before finding me innocent of the charges.
Two more months went by before I was reinstated on my job,
but on the first day back to work I was given a 40-hour
suspension without pay for criminal activity because I had been
indicted.
Throughout this ordeal, I held the belief that once ATF
does a proper investigation, the case would go away. This did
not happen. ATF based their case on the only statement taken
from me by Internal Affairs. ATF failed to interview any of the
witnesses to the firearm purchase and transfer.
This was a life-altering event, and it was absolutely
devastating. I am the father of four sons and have sole custody
of them. So at the time of the prosecution, it had an immediate
and direct impact on them as well. It is not hard to imagine
how tough it was for them to face their friends and teachers,
especially when the newspapers kept running headlines about a
cop gone bad.
Financially, I lost over $216,000 in savings and earnings.
I had to refinance my home to help pay the bills and the
attorney fees. The prosecution also had a direct impact on my
retirement. I endured two great fears throughout this entire
process. Number one, if I were found guilty, I would lose
custody of my sons. Number two, the prospect of prison life is
not a good one for an ex-officer.
And finally, my professional career is shot. It has now
been 3 years after the event and I am still a patrol
lieutenant. It was made clear to me that when I returned to
work, I would never see any advancement.
It just makes no sense to me why ATF would try to prosecute
someone who had dedicated themselves to serving our community
and who clearly did nothing wrong. It was obvious that there
was no intent of wrongdoing. And even if their perception of
the facts were accurate, at best I would have been guilty of
filling out an ambiguous form incorrectly.
This prosecution should not have occurred, and it
certainly, as I said, was life-altering.
I would like to thank the Chair. Thank you.
[The prepared statement of Mr. Lara follows:]
Prepared Statement of Michael James Lara
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Coble. I thank you, Lieutenant, for being with us.
Ms. Rand.
TESTIMONY OF M. KRISTEN RAND, LEGISLATIVE DIRECTOR, VIOLENCE
POLICY CENTER
Ms. Rand. Thank you, Mr. Chairman, Members of the
Subcommittee.
I think I would just like to provide a little context here
in that the Violence Policy Center has done a lot of research
looking at gun dealer licensing over the decades. In 1992 we
released a study showing that there were more gun dealers in
America than gas stations. There were 245,000 Type I FFL
dealers, meaning the basic license to deal in firearms; there
were 210,000 gas stations in America at that time.
And not surprisingly, with so many gun dealers out there,
they were a primary source for illegally trafficked weapons.
They were a primary source for straw purchases. They were
virtually unmanageable by ATF. There were simply too many
dealers, far too few agents, far too few inspections. And we
documented this situation in many research studies and worked
with the Clinton administration to impose new administrative
rules and to pass new regulations. The regulations at the time
were so lax that two dogs were licensed as gun dealers by ATF
in 1990. That was a really bad situation.
We have come a long way since then, through the tougher
enforcement of existing law, higher license fees, better
background checks. The universe of gun dealers, Type I dealers
in America today, is around 55,000--far more manageable for
ATF. And we think that is going in the right direction.
We would also add that, with respect to administrative
procedures, it is really important to understand that the
administrative process for persons who are in a revocation
proceeding with ATF, it really is skewed toward the defendant
in that they have the right to a de novo review, meaning a
court can look at new evidence. That is not required under the
Administrative Procedures Act. We certainly want to see that
there is at least an appearance--that the hearing officer is
objective. That is important. But the current process does meet
the Administrative Procedures Act, and we would want to have
this issue studied very carefully before making changes in that
regard.
I think the most important thing is we have to remember
what it was like when we had more gun dealers than gas
stations. I know it was extremely frustrating for law
enforcement, extremely frustrating for ATF and other
enforcement agencies, and we don't want to take steps
backwards.
So that I think some of the things that have been discussed
here, the Violence Policy Center would certainly support: civil
penalties, as long as they are meaningful, so that they are not
just a slap on the wrist and that they are carefully gauged to
be adequate for the violation; suspension authority for ATF, we
have long supported that. I think that is a great idea, that
revocation certainly shouldn't be the only option for the
Agency. But again, the Agency really doesn't revoke that many
licenses. They never have.
So we think we just need to be very careful here, but I
think, from the discussion today, there certainly are measures
that we can all agree on to improve the process. But I would
caution that we shouldn't legislate based on anecdote. Mr.
Lara's situation sounds extremely unpleasant, but we just
should be careful not to just legislate based on one anecdote
and go back to the days when America had more gun dealers than
gas stations.
Thank you.
[The prepared statement of Ms. Rand follows:]
Prepared Statement of M. Kristen Rand
Good afternoon Mr. Chairman, I am Kristen Rand, legislative
director for the Violence Policy Center (VPC). The Violence Policy
Center is a non-profit think tank that works to reduce firearm-related
death and injury through research, policy development, and advocacy.
The VPC is pleased to have the opportunity to address issues related to
Federal Firearms License holders (FFLs).
In 1992, the Violence Policy Center released a landmark study of
federally licensed firearms dealers. More Gun Dealers than Gas Stations
detailed the ease with which a Federal Firearms License could be
obtained at the time. The basic three-year gun dealer's license could
be had for $30.00 and completion of a simple form. Applicants were
barely scrutinized by the Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF). The result was more than 245,000 Type I gun dealers
in America--far more than the 210,000 gas stations then operating in
the United States. The system for issuing licenses was so lax that in
1990 ATF approved applications for two dogs, the Washington Post
revealed.
But the sheer volume of licensees was only the tip of the iceberg.
Unlike ordinary citizens, licensees are: able to buy and sell firearms
in interstate commerce and receive firearms via common carrier; able to
purchase firearms from wholesalers at discount and in unlimited
quantities; and, are exempt from waiting periods, background checks,
licensing, or registration requirements. In our 1992 study, the VPC
documented how FFLs were abusing these privileges to funnel large
numbers of guns into the illegal market. One of the most egregious
abuses was a Virginia dealer who was supplying guns to criminals in the
District of Columbia:
Donald Percival was an FFL who owned two pawn shops in
Virginia: Ted's Coin, Guns, Pawnbrokers, and Ted's Coins, Guns,
and Machineguns. In 1988 ATF became aware that Percival and his
employees were selling firearms such as MAC-11 assault pistols,
9mm pistols, and inexpensive small-caliber handguns to underage
DC residents, including drug dealers. Percival warned buyers
that he was required to notify ATF of multiple purchases,
something one drug dealer described as ``information he needed
in his business.'' The drug dealer said Percival had stated
that all he required was a Virginia driver's license or someone
with a Virginia driver's license to act as the straw man and
``you can come down and get a gun.'' When a Ted's salesman was
asked how to get rid of the serial number on a gun, he replied,
``You have to pour acid over the serial number to get it off.''
Percival also sold numerous guns in straw purchase sales to
undercover ATF agents. In 1989, Percival was convicted by a
jury of conspiracy and related felony federal firearms
violations.
At the time, ATF identified straw purchasing \1\ as the preferred
method by which weapons were obtained by criminals in the District of
Columbia.
---------------------------------------------------------------------------
\1\ A straw purchase is a transaction in which persons who can
legally purchase guns acquire them for persons prohibited from gun
possession by reason of a felony conviction or other disqualifier.
---------------------------------------------------------------------------
This is just one of the myriad examples of dealers abusing the
privileges of the license. One infamous example was David Taylor, a
Bronx, New York, man who was ultimately indicted by authorities in 1987
in a plot to resell in New York City at least 1,000 handguns he ordered
using his FFL and had shipped to his apartment via UPS. The Bronx
District Attorney called the case ``the most incredible violation of
this city's gun laws that I or anyone else has ever heard of.''
Moreover, because there was no requirement at that time that FFLs
comply with state and local licensing laws, Taylor was able to
circumvent New York's tough gun laws, prompting the Bronx D.A. to label
the federal law ``disgraceful.''
The Clinton Administration reacted to this ``disgraceful''
situation by taking a number of steps to crack down on license abuse.
They began aggressively enforcing the statutory requirement that
dealers be ``engaged in the business'' of selling firearms.\2\ Although
federal law had long contained the requirement that dealers meet a
certain level of business activity in order to be eligible for a
license, this provision had never been enforced. In addition, the
thoroughness of the background check was improved with a new
requirement that applicants submit fingerprints and photographs, and
more applicants were inspected. These administrative changes were
augmented by new statutory requirements in 1994, including an increase
in the fee for a three-year license from $30.00 to $200.00. Applicants
were also required for the first time to certify that their business
was not prohibited by state or local law and that the business would
comply with all relevant state and local laws within 30 days of license
approval.
---------------------------------------------------------------------------
\2\ See 18 U.S.C. Sec. 921 (a)(21) and Sec. 923 ((d)(1)(E).
---------------------------------------------------------------------------
In addition to these positive changes at the federal level, many
localities--including Detroit and New York--began enforcing zoning and
other local ordinances prohibiting dealers from operating from
residential premises.
The result of these policy changes has been a gradual, yet drastic,
reduction in the number of licensees. The Violence Policy Center
recently released a study with the most recent numbers. Today there are
54,902 Type I FFLs. Only five states--Alaska, Idaho, Montana, Oregon,
and Wyoming--still have more gun dealers than gas stations (a copy of
the study, An Analysis of the Decline in Gun Dealers: 1994 to 2005,
http://www.vpc.org/studies/dealers.pdf, has been submitted for
inclusion in the record).
The Government Accountability Office (GOA) analyzed the reasons for
the decline and found that the policy changes made during the 1990s
resulted in fewer applications being submitted and fewer renewals of
existing licenses. The GAO also found that the number of licenses that
were abandoned or withdrawn far exceeded the number of licenses denied
or revoked.\3\ In fact, ATF very seldom revokes a license. The VPC's
1992 study documented 15 years of license revocations, from 1975
through 1990. In 1990, nine licenses were revoked. In 1975, ATF revoked
seven licenses. The high during the 15-year period was during the
Reagan Administration in 1986 when a total of 27 licenses were revoked.
The low revocation numbers continue today. In 2002, ATF revoked 30
licenses and the number of revocations increased to 54 in 2003.
---------------------------------------------------------------------------
\3\ GAO Report, Federal Firearms Licensees: Various Factors Have
Contributed to the Decline in the Number of Dealers, (March 1996).
---------------------------------------------------------------------------
The low revocation numbers may be partially the result of a process
that provides every advantage to the licensee. Typically, after ATF
finds violations, the dealer is warned and provided with the
opportunity to remedy any violations long before revocation proceedings
are initiated. Moreover, revocation is the agency's only option to
punish recalcitrant dealers. The agency has no general authority to
suspend a license or to assess civil penalties.
In addition, licensees are afforded generous appeal rights.
Licensees have a statutory right to a hearing and may even request that
a license revocation be stayed during the hearing process. Although
some licensees have complained that the hearing officer is an ATF
employee, this is entirely consistent with the Administrative Procedure
Act (APA),\4\ the federal statute governing administrative
adjudications.
---------------------------------------------------------------------------
\4\ 5 U.S.C. Sec. 556 (b) provides that the agency, one or more
members of the body which comprises the agency, or one or more
administrative law judges shall preside at the taking of evidence.
---------------------------------------------------------------------------
A licensee who does not prevail at the agency hearing has the right
to appeal the revocation decision to a United States district court and
is entitled to de novo review of his claim.\5\ The de novo standard of
review was added to the judicial review provision in 1986 by the
National Rifle Association-backed Firearms Owners' Protection Act
(FOPA), legislation designed primarily to loosen restrictions on
federal firearms licensees. The FOPA also added language that entitles
a licensee to submit evidence in court that was not considered at the
agency level hearing.
---------------------------------------------------------------------------
\5\ De novo review ensures that the claim will be considered anew,
the same as if it had not been heard before and as if no decision
previously had been rendered. Ness v. Commissioner, 954 F.2d 1495, 1497
(9th Cir. 1992). Such review is 'independent.' Premier v. Fuentes, 880
F.2d 1096, 1102 (9th Cir. 1989).
---------------------------------------------------------------------------
Another FOPA addition provides a huge advantage to a licensee who
is the subject of criminal charges where the proceedings are terminated
or the defendant is acquitted. This provision prohibits the Attorney
General from revoking a license based ``in whole or in part on the
facts which form the basis of such criminal charges.'' \6\ The Reagan
Department of the Treasury opposed this change to the statute pointing
out, ``Because the burden of proof on the Government is less stringent
in civil actions, a civil license denial or revocation proceeding
should not depend on the outcome of the criminal case. No
constitutional rights are violated by the civil proceeding when the
applicant or licensee was previously acquitted of criminal charges.''
\7\
---------------------------------------------------------------------------
\6\ 18 U.S.C. Sec. 923(f)(4).
\7\ 132 Cong. Rec. H507 (1986) (statement of Rep. Hughes).
---------------------------------------------------------------------------
There are several benefits to the significant decline in the number
of FFLs. A smaller universe of dealers makes it easier for ATF to focus
its inspections. ATF has also noted that fewer dealers makes it easier
to complete firearm trace requests since it reduces the number of
dealers who cannot be located because they have changed residences.
The decline in the number of licensed gun dealers coincided with a
very significant drop in overall gun death in America. Gun-related
deaths peaked in 1993 at 39,595. In 2003, the latest year for which
complete figures are available, there were 30,136 gun-related deaths.
But the fact that FFLs are difficult to revoke and licensees'
rights are so well protected may help explain why straw purchases
continue to contribute significantly to illegal gun trafficking,
despite the decline in the number of licensed dealers. In its June 2000
report detailing 1,530 criminal gun trafficking investigations, ATF
identified straw purchasing as ``the most common channel in trafficking
investigations''--with straw purchasing involved in almost half of all
trafficking investigations. The report also found that because licensed
dealers have access to large numbers of firearms, corrupt FFLs diverted
the highest volume of guns into the illegal market. Moreover, where
FFLs cooperated with straw purchasers and straw-purchasing rings, the
average number of firearms trafficked per investigation was 114.8
compared to 32.8 in cases where there was no FFL involvement.
Recent straw purchasing prosecutions include the following:
<bullet> In 2006, seven people were indicted in Philadelphia
for using straw purchases to obtain guns, including an AK-47
assault rifle, they used in robberies at banks and fast-food
restaurants and to shoot at a police officer.\8\
---------------------------------------------------------------------------
\8\ Vernon Clark, ``Seven charged in gun-buying, robbery spree:
Weapons obtained illegally through `straw buyers,' were used to rob
banks, local and U.S. officials said,'' The Philadelphia Inquirer,
February 9, 2006, p. B03.
<bullet> In 2005, two FFLs in Fairmont, West Virginia, were
indicted for facilitating straw purchases at two pawn shops.\9\
---------------------------------------------------------------------------
\9\ Associated Press, ``Five charged in illegal gun sales,'' March
2, 2005, State and Regional.
<bullet> In 2004, two FFLs in Manassas, Virginia, were
arrested for facilitating straw purchases of various types of
guns over a two-year period. One of the dealers was recorded
telling an informant that he knew that what he was doing was
wrong.\10\
---------------------------------------------------------------------------
\10\ Josh White and Jerry Markon, ``2 Manassas Gun Dealers Charged;
Weapons Sold to Felons and for Use in Crimes, ATF Says,'' Washington
Post, March 18, 2004, Prince William Extra, T02.
<bullet> In 2004, a woman pleaded guilty to purchasing two
semiautomatic handguns--one of which was used in the slaying of
a three-year-old child--for felons from Don's Guns in
Indianapolis. The woman was arrested as part of a federal gun
trafficking investigation that involved the straw purchase of
at least 28 guns from Don's Guns.\11\
---------------------------------------------------------------------------
\11\ Fred Kelly, ``Woman admits buying 2 pistols on behalf of
felons,'' The Indianapolis Star, March 11, 2004, p. 3B.
<bullet> In 2003, the owner of a Pennsylvania gun shop and his
father were sentenced to prison terms for supplying guns to a
straw purchaser.\12\
---------------------------------------------------------------------------
\12\ Associated Press, ``News in brief from western Pennsylvania,''
March 22, 2003, State and Regional.
The steep decline in licensed gun dealers in America is one of the
unsung victories in the effort to prevent firearm-related violence and
protect public safety. The gun lobby is desperate to reverse this
decline. They have, in fact, succeeded in inserting a provision in
ATF's annual spending bills for fiscal years 2005 and 2006 that
prohibits ATF from refusing to grant or renew a dealer's license for
``lack of business activity.'' In order to continue in the right
direction, ATF needs more resources to monitor dealers' operations and
identify the ``bad apple'' dealers whose licenses should be revoked.
The agency needs more flexibility to punish corrupt dealers, such as
the authority to suspend licenses and assess civil penalties.
Let's not go back to the days when America had more gun dealers
than gas stations.
ATTACHMENT
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Coble. Thank you, Ms. Rand.
Now, we impose the 5-minute rule upon ourselves as well, so
if you all could tersely respond to our questions, we would
appreciate that.
Ms. Stucko, would the creation of civil penalties,
including the suspension of an FFL license--is that a concept
that ATF would support?
Ms. Stucko. I think we would need time to analyze any
specific situation, but we would certainly be open to
considering and working with the Committee on any
possibilities.
Mr. Coble. Ms. Rand, your organization--strike that.
Does your organization support the idea of establishing a
graduated civil penalties structure for FFLs that violate the
law?
Ms. Rand. Yes, we would support meaningful civil penalties,
and also urge that the issue of indexing them for inflation be
looked at as well, so that once they are on the books for 10 or
20 years, that they are still relevant. That would be another
issue we would recommend that you look at.
Mr. Coble. Would that include the implementation of the
option to suspend an FFL license?
Ms. Rand. Yes. We are very supportive of the idea of
suspension authority.
Mr. Coble. Lieutenant Lara, I empathize with you. That was
a very compelling testimony that you gave. And just as an
aside, I note that you were acquitted after a 3-day trial. How
long was the jury out?
Mr. Lara. The jury was out less than 1 hour.
Mr. Coble. I would have thought that would--less than 1
hour?
Mr. Lara. Less than 1 hour.
Mr. Coble. Were you interviewed, lieutenant, by any
representative representing ATF or the Department of Justice
prior to your having been charged?
Mr. Lara. No, I wasn't.
Mr. Coble. Mr. Gardiner, you touched on this. Well, strike
that. Let me go back to Ms. Rand a minute.
Ms. Rand, does your organization support a complete ban on
civilian sale of firearms in the United States?
Ms. Rand. No, Mr. Chairman. We support a ban on sales of
handguns, assault weapons, .50 caliber sniper rifles. But we do
not support a ban on sporting rifles and shotguns.
Mr. Coble. Mr. Gardiner, you touched on this, but I am
going to give you a chance to extend in a little more detail
regarding the different interpretations of the term ``willful''
in criminal and civil cases. Elaborate a little on that, if you
will.
Mr. Gardiner. Yes, in 1986, Congress put the word
``willful'' into both the license revocation provision and the
criminal provisions in 924. Since then, the U.S. Supreme Court
has interpreted the word ``willfully'' in the criminal
provision that Congress enacted and said, in a case called
United States v. Bryan, and said that ``willful'' means that
the person had to act knowing that he was acting unlawfully and
acting with a bad purpose. That is classic criminal intent.
In the civil context, interpreting the same word, the same
word ``willfully'' that Congress put into the same act at the
same time, the ATF has taken the position that that word does
not mean what it means in the criminal context, despite the
fact that it is the same word, but that it means that if a
dealer was aware what his legal obligations were and he commits
that violation, even if he only does it on a very, very few
occasions, that that is a willful violation.
The example I would give is this case that was decided by
the Seventh Circuit. There were 880 forms involved. There were
12 forms which had one or two errors on them--and 880 forms
would be 34,320 blocks of information of which 19 had errors.
And the errors were, for example, that the driver's license
number was not transposed from another document. That is a
99.96 percent perfect completion record, yet ATF took the
position that because the dealer was aware, based on the fact
that he had completed 99.96 percent of the forms accurately,
that he committed a willful violation with regard to the other
.04 percent, because he knew what his legal obligations were.
Essentially, what the ATF position is, that human beings
can make no mistakes. And indeed, in the oral argument in that
case, one of the judges asked the U.S. Attorney what the ATF's
position was, and he said ``zero tolerance.''
Mr. Coble. Thank you, Mr. Gardiner.
Ms. Rand, you indicated that fewer dealers is a move in the
right direction. I realize hypothetical questions are sometimes
difficult to answer, but let me throw one at you. How many gun
dealers do you think there should be? Or do you have an idea
for that?
Ms. Rand. Well, the problem primarily is with dealers who
aren't operating under storefront businesses. Historically the
real problem has been so-called kitchen table dealers, who get
the licenses and operate out of their homes or offices, and
that they tend not to, you know, really engage in the business
of selling firearms. So our position has been if you clean out
all these so-called kitchen table dealers and limit the
licenses to stocking dealers, that would probably--I mean, I
don't actually know how many that would be, but I think it is
estimated that about 40 percent now are still kitchen table
dealers.
Mr. Coble. Now, let me beat that red light before Mr. Scott
comes after me.
Mr. Gardiner, you heard the lieutenant's testimony. Does
that portray cases in which you have been involved?
Mr. Gardiner. Yes.
Mr. Coble. That severe?
Mr. Gardiner. That severe. I have had similar cases. I had
one case in West Virginia where there were 206 counts. The
gentleman was acquitted of 201 of them.
Mr. Coble. Thank you, sir.
The gentleman from Virginia.
Mr. Scott. Thank you.
Mr. Gardiner, following up----
Mr. Coble. Mr. Scott, if you would, we have been joined by
the distinguished gentleman from New York, Mr. Weiner. Good to
have you with us.
Mr. Scott.
Mr. Scott. Thank you.
Mr. Gardiner, let me follow up on that. What was the
sanction imposed in that case? Is that a revocation case?
Mr. Gardiner. Which, the one in the Seventh Circuit are you
talking about?
Mr. Scott. Well, either the 201 out of 206, or the didn't
transpose the----
Mr. Gardiner. The 201 out of 206 was a criminal
prosecution, and the other one----
Mr. Scott. What sanction was imposed?
Mr. Gardiner. Well, he was convicted. I mean, he was
acquitted of 201 counts, so no sanction, and the sanction that
was imposed for the remaining five counts, which are pending
under appeal, was a 24-month jail sentence. And on the other
one, the sanction was revocation because, as has been pointed
out by several witnesses, the only sanction that ATF has
available by statute is revocation.
Mr. Scott. So you would agree that fines and possible
suspension, kind of intermediate sanctions, would be a good
idea?
Mr. Gardiner. Yes.
Mr. Scott. You are a lawyer. Do you represent generally the
gun dealers as clients?
Mr. Gardiner. I have represented gun dealers. I have also
represented individuals who are not gun dealers, although I
didn't represent Mr. Lara, but cases similar to his.
Mr. Scott. On the term ``willful,'' could you give some
other examples of how that new interpretation gets us in
trouble?
Mr. Gardiner. Well, what it means is that any dealer who
ATF has told in one of these warning conferences that he has
mistakes on his 4473 Forms or his acquisition disposition log,
if he makes those mistakes again, even if he does it in .04
percent of the time, in ATF's view that is a willful violation.
They give no room for human error.
Mr. Scott. And then you are looking at revocation or
nothing, or a criminal offense?
Mr. Gardiner. Correct.
Mr. Scott. Now, in reference to the hearing officer,
presently how do they pick the hearing officer?
Mr. Gardiner. The hearing officer is selected--there is a
person called a Director of Industry Operations, and I don't
know exactly where he is in the hierarchy, but he is a field
person, and he selects the hearing officer. And the person he
selects is usually someone from outside the region, so he
doesn't--but he is an ATF inspector. He is brought in from
outside the region, so I guess he doesn't know, theoretically
doesn't know any of the players.
Mr. Scott. And if we change that to the normal
administrative process act, who would be the hearing officer?
Mr. Gardiner. It could be--I believe that the statute
should require that it be an administrative law judge. Under
the current Administrative Procedures Act, agency employees can
conduct certain types of hearings. I think in a situation like
this, it would be much wiser for Congress to just simply
require by statute that it be an administrative law judge.
Because we do have legal issues here which are of significance,
and you need someone who has legal training to be able to
interpret them and be able to interpret and apply, at least to
the degree they apply, the rules of evidence.
Mr. Scott. Okay. Ms. Stucko, you indicated that you won 33
out of 36 cases in court.
Ms. Stucko. That is correct.
Mr. Scott. And those are on revocations?
Ms. Stucko. Those are on revocations, correct.
Mr. Scott. Now, how many people did--I assume everybody you
revoked didn't go to court?
Ms. Stucko. No, those are the cases that did go to court.
Mr. Scott. Do you know how many you revoked altogether?
Ms. Stucko. Approximately 100 each year. And that is about
one-tenth of 1 percent of the total population of FFLs.
Mr. Scott. Okay. And 100 a year, and over what time was the
33 out of 36?
Ms. Stucko. That was over a 5-year period.
Mr. Scott. So out of 500, you lost 3 cases.
Do you support the intermediate sanctions, the fines and
suspensions, as opposed to revocation or nothing?
Ms. Stucko. We are open to taking a look at intermediary
measures.
Mr. Scott. Mrs. Rand, how would we establish a standard
that would reduce the number of licensees? If someone is well
qualified and wants to be a licensee, what should be the
process?
Ms. Rand. Well, I mean, there are many jurisdictions, and I
think the District of Columbia is one that has a process in
place in its interaction between ATF and local law enforcement.
If you apply for a dealer's license in the District, you get a
visit from an ATF inspector and from--and you have to notify
the local law enforcement and you have to meet all zoning
requirements, you have to be in compliance with all business
license laws, et cetera, et cetera. And the combination of
those two things have worked in D.C. and other jurisdictions--
--
Mr. Scott. So you would limit the license to someone who
was actually in the business, not just trading frequently?
Ms. Rand. Correct. We would limit it to preferably people
who are running stocking gun stores.
Mr. Scott. Mr. Gardiner, do you have a problem with that as
a limitation on licensees?
Mr. Gardiner. That is already the law. As Ms. Rand pointed
out, that changed during the Clinton administration in 1994 to
require the compliance with zoning laws. And that is what I
think has led to the significant decline in the number of
dealers, from about 250,000 to about 55,000.
So, no, I don't have a problem with it because it is
already the law.
Mr. Scott. Okay. Thank you.
Mr. Coble. The distinguished gentleman from Florida, Mr.
Feeney.
Mr. Feeney. Thank you, Mr. Chairman.
You know, Ms. Rand, you have already acknowledged that with
the exception of some sporting rifles, your organization would
be in favor of pretty much an outright ban on sales of handguns
and assault weapons and a variety of other weapons. It seems to
me that the--you said it three or four times, and of course we
have your written testimony which is in more detail and has
some facts, but it seems to me that your major premise is how
horrible the notion is that there are more gun dealers than gas
stations in the United States as of 1992.
It occurs to me that when we won the Revolutionary War and
World War I and probably World War II we had more gun dealers
in the United States than we did gas stations. And somehow we
wobbled along as a Nation and protected some of our liberties.
I think it is somewhat of a nonsequitur to say that because
you have more gun dealers than gas stations, that somehow you
have a society on the brink of collapse. And yet you repeated
that several times in your 5-minute testimony.
Ms. Rand. Well, actually, I mean, we did a new research
study looking at the decline in dealers in the States that
still do have more gun dealers than gas stations, one of which
is Alaska, which has three times more gun dealers than gas
stations, and in fact regularly ranks at the top of the list of
States with the highest overall firearm-related gun death
rates. So----
Mr. Feeney. How many gun dealers are there in Washington,
D.C. that are licensed?
Ms. Rand. I don't--I would guess probably 11 or 12. I guess
that would be----
Mr. Feeney. How many, given the population?
Ms. Rand. But see, the problem in D.C. is that the guns
used in homicides here invariably come from out-of-State.
Ninety-seven percent of the guns causing harm in the District--
--
Mr. Feeney. Well, with all due respect----
Ms. Rand.--come from outside of the District----
Mr. Feeney. One of the rational arguments here is that to
the extent that you license more people that are dealing in
guns--because not everybody who is dealing in guns, as you just
pointed out, is licensed--so to the extent that you have a
higher percentage of the people that are dealing licensed, it
gives the ATF the ability to regulate everybody that is
transferring weapons.
Ms. Stucko, you just responded to my colleague that you
didn't necessarily have a problem with looking at some
intermediary effort to enforce licensed gun dealers so that we
are not focusing on the minor paperwork problems, but rather
getting after people that are willfully or deliberately or in a
gross negligent way not complying with the intent and the
meaning of the law. Would you support a look at a graduated set
of penalties so that we don't throw everybody who has made one
or two paperwork errors out of 205 things that they are charged
with, don't throw everybody in the same bus with a dealer that
literally is going out of his or her way to violate the law and
transfer weapons?
Ms. Stucko. I think we are definitely open to looking at a
graduated tier.
I would like to clarify that willfulness doesn't
necessarily result in a revocation. Willfulness just
establishes that a violation has taken place. And while some
violations may be defined by others as being minor, I mean they
are violations, but what we do is we take in--we take the
overall picture. We look at the FFL as a whole. And depending
on what the circumstances are would warrant whether or not
revocation is needed.
Mr. Feeney. Well, we have at least one prosecutor who is on
record telling a Federal judge that ``no errors'' are
permissible. I wondered what would happen if we would hold FEMA
or, say, the National Immigration Service to the standard that
no errors are impermissible. It seems to me a pretty high
standard. You may not do that on every basis, but----
Ms. Rand, you indicated that the appellate process is, I
think you put it, quite liberal for ATF licensees that are
charged with some of these minor offenses. Actually, you put it
``generous appeals rights.'' But in fact, the testimony of Mr.
Gardiner is that the appeals process goes to the prosecutor. It
is basically the ATF's agent that you get to appeal to. Do I
understand--how do you reconcile your testimony with his--I
have to go to the prosecutor?
Ms. Rand. You start at ATF, where there is a fact-finding
hearing. And then if you lose at that stage, you have the right
to appeal to the district court and present your case there.
And----
Mr. Feeney. Mr. Gardiner, do they have to take that appeal
to the district court level?
Mr. Gardiner. After the so-called administrative hearing,
then you have a right to go into court. That is correct.
Mr. Feeney. What is your problem with the appellate process
as a matter of due process and fairness?
Mr. Gardiner. Well, the problem with the appellate process
as it now exists is that this administrative hearing, where
presumably most of these cases should end, is a sham proceeding
because you have this ATF employee, an investigator from just
outside the region, who is conducting the hearing. And what I
didn't get to mention earlier but I will mention now is that
when he then goes back to review his decision, he consults the
very counsel at ATF and the director of industry operations who
made the decision in the first place. So it really is not a
hearing process as is commonly understood administratively.
And the problem with the judicial review, though it is
certainly a good thing, is that most of the judges take the
position, based on ATF's argument, that they are simply looking
at what the hearing officer did. So you don't really now have
any meaningful review.
Mr. Feeney. Well, Mr. Chairman, if there is no objection, I
want to get to this. Because Ms. Rand makes a point that you
are entitled to a de novo hearing, you say that it is quite
deferential. Are you saying that the practice is different than
the de jure procedure?
Mr. Gardiner. That is what I am saying, is that--that is
exactly what I am saying, that ATF has taken the position that
the de novo review is limited to a de novo review of the
administrative process; that is, the judge can look at the
administrative process himself but he doesn't do anything
beyond that. And that is the problem, is that then you depend
on having a fair administrative process, but you don't have a
fair administrative process, so the de novo judicial review
essentially becomes meaningless.
Mr. Coble. I thank the gentleman.
I commend the Members of the Subcommittee and the witnesses
for staying pretty well within the time frame. You all have
contributed very significantly, I believe. And I thank you for
your testimony. The Subcommittee very much appreciates the
contribution.
In order to ensure a full record and adequate consideration
of this important issue, the record will be left open for
additional submissions for 7 days. Also, any written questions
a Member wants to submit should be submitted within the same 7-
day period.
This concludes the oversight hearing on the Bureau of
Alcohol, Tobacco, Firearms, and Explosives: Reforming Licensing
and Enforcement Authorities.
We will now proceed with the legislative hearing on H.R.
5005, the ``Firearms Corrections and Improvement Act.''
We stand adjourned as far as the first panel is concerned.
[Whereupon, at 2:53 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Robert C. Scott, a Representative
in Congress from the State of Virginia, and Ranking Member,
Subcommittee on Crime, Terrorism, and Homeland Security
Thank you, Mr. Chairman. I am Pleased to join in convening this
hearing on ATF licensing and enforcement authorities. We have held two
previous hearings on ATF gun law enforcement activities. This hearing
focuses primarily on ATF gun licensing issuance and regulations
procedures and practices.
I believe there are several areas under current licensing
regulations that we can all agree warrant some change. Adding fine and
suspension authority to the current revocation only authority for
licensing violations is one such area of general agreement. I believe
that in according due process, the appearance of impartiality is an
important component. While there is nothing to establish that ATF
appointed employees cannot serve as fair and impartial hearing
officials, I believe that the appearance of impartiality is served by
having those officers from a agency and appointment source. And I am
open to the suggestion that the ATF could benefit from a study of its
operations and resource allocations and from general operational
guidelines relative its enforcement activities, as with other agencies
under the department of Justice.
Whatever we may do legislatively, Mr. Chairman, I believe that our
goal should be to improve the operational effectiveness as well as the
fairness of the ATF's gun law enforcement and licensing
responsibilities. The ATF has an important function and responsibility
with respect to the enforcement of our federal gun laws. While we want
to ensure that these functions and responsibilities are applied in
manner that promotes the support and respect of the citizens they
affect, we don't want to do so at the expense of diligent and effective
enforcement.
Mr. Chairman I know that our staff's are working on legislation
that will reform some of the ATF's current enforcement procedures and
options. It is my hope that the legislation will reflect improvements
that we can agree with on a bi-partisan basis, and that gun control, as
well gun rights, advocates can support. I look forward to the testimony
of our witnesses relative to these issues, and I look forward to
working with you towards the ends of bi-partisan, generally supported
improvements in ATF gun enforcement operations. Thank you.
__________
Prepared Statement of Bruce R. Barany, Co-Owner, The General Store,
Spokane, Washington
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__________
Prepared Statement of James. M. Faircloth, Owner, Jim's Pawn Shop,
Inc., Fayetteville, North Carolina
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__________
Prepared Statement of Stanton Myerson, Owner, Lou's of Upper Darby,
Inc., Upper Darby, Pennsylvania
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