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The National Shooting Sports Foundation, Inc v. B. Todd Jones

January 13, 2012

THE NATIONAL SHOOTING SPORTS FOUNDATION, INC., PLAINTIFF,
v.
B. TODD JONES, ACTING DIRECTOR,
BUREAU OF ALCOHOL, TOBACCO, FIREARMS & EXPLOSIVES,*FN1 DEFENDANT.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

The Court is asked whether ATF exceeded its authority or acted arbitrarily and capriciously when it issued a demand letter requiring certain firearms dealers to report multiple sales of specific semi-automatic rifles and answers in the negative.

The National Shooting Sports Foundation, Inc., J & G Sales, Ltd., and Foothills Firearms, LLC., seek to enjoin the Bureau of Alcohol, Tobacco, Firearms & Explosives ("ATF"or "Bureau") from requiring all federal firearms licensees in states bordering Mexico to report sales of more than one semi-automatic rifle to the same person at one time or during a period of five consecutive business days. Plaintiffs contend that ATF should be enjoined from requiring such reporting because Congress has indicated expressly that the federal government will not establish a national firearms registry and the reporting requirement at issue here would create just such a registry. The parties have filed cross motions for summary judgment. Because ATF's reporting requirement is properly limited in scope, summary judgment will be granted in favor of ATF.

I. FACTS

A. Statutory Scheme

The Gun Control Act of 1968, 18 U.S.C. § 921-931, regulates the manufacture, importation, and sale of firearms and requires persons engaged in such activity to be licensed by the Attorney General. 18 U.S.C. §§ 922(a)(1), 923(a). ATF is the agency authorized to license and inspect federal firearms licensees ("FFLs") to ensure they comply with laws governing the sale, transfer, possession, and transport of firearms, and to ensure they maintain records in accord with federal requirements. 18 U.S.C. § 923(g)(1); 28 U.S.C. § 599A; 28 C.F.R. § 0.131. FFLs create and maintain records on all firearms transactions, including the name, age, and residence of firearms buyers. See 18 U.S.C. §§ 922(b)(5), 923(g); 27 C.F.R. § 478.125(e). ATF also operates the National Tracing Center to process requests from Federal, State, local, and foreign law enforcement agencies for the tracing of guns associated with crimes ("crime guns") and to collect and analyze trace data.

28 C.F.R. § 0.131.

The Firearms Owners' Protection Act of 1986 ("FOPA") amended the Gun Control Act. Congress' purpose in enacting both the Gun Control Act and FOPA was to provide support to law enforcement officials at all levels in their fight against crime and violence without placing an undue burden on law-abiding citizens with respect to the purchase, possession, or use of firearms. United States v. Beuckelaere, 91 F.3d 781, 784 (6th Cir. 1996); United States v. Lam, 20 F.3d 999, 1001 (9th Cir. 1994). "FOPA was intended to reduce the regulatory burden on law-abiding firearms owners without incapacitating [ATF's] ability to combat violations of the firearms laws." RSM, Inc. v. Buckles, 254 F.3d 61, 64 (4th Cir. 2001). FOPA specifically prohibited the federal government from creating a national firearms registry, while maintaining the authority to examine records of firearms transactions in the course of a criminal investigation:

The Attorney General may prescribe only such rules and regulations as are necessary to carry out the provisions of this chapter . . . . No such rule or regulation prescribed after the date of the enactment of the Firearms Owners' Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established. Nothing in this section expands or restricts the Secretary's authority to inquire into the disposition of any firearm in the course of a criminal investigation.

18 U.S.C. § 926(a).

FOPA also authorized ATF to issue demand letters which require FFLs to report gun sales information as specified by the demand letter. 18 U.S.C. § 923(g)(5)(A); see 27 C.F.R. § 478.126. Section 923(g)(5)(A) codified an old regulation found at 33 Fed. Reg. 18,555, 18571 (Dec. 14, 1968). In other words, ATF has had demand letter authority since 1968. FOPA also required FFLs to report multiple hand gun sales. It mandates that FFLs report the sale or disposition of two or more pistols or revolvers to the same person at one time or during five consecutive business days. Id. § 923(g)(3)(A).

Nine years after FOPA was enacted, Congress enacted 18 U.S.C. § 923(g)(7). Section 923(g)(7) requires FFLs to provide records to ATF as requested in the course of a criminal investigation.

Each licensee [e.g., FFL] shall respond immediately to, and in no event later than 24 hours after the receipt of, a request by the Attorney General for information contained in the records required to be kept in this chapter as may be required for determining the disposition of 1 or more firearms in the course of a bona fide criminal investigation. The requested information shall be provided orally or in writing, as the Attorney General may require.

Id. § 923(g)(7); see also 27 C.F.R. § 478.25a.

In sum, ATF has access to the name and address of firearms purchases as retained in FFL records only as authorized by statute or regulation. When a law enforcement agency recovers a firearm from a suspect or from a crime scene, the agency can submit a trace request to ATF. See 18 U.S.C. § 923(g)(7) (requiring FFLs to respond to trace requests within 24 hours). ATF then can track the movement of the weapon from the manufacturer to the FFL and then to the purchaser. To determine the disposition of a firearm, ATF can, for example, (1) inspect an FFL's records without a warrant under § 923(g)(1)(B)(iii), (2) require an FFL to provide record information in writing or by telephone under § 923(g)(7); or (3) in the case of multiple sales of handguns reported to ATF under § 923(g)(3)(A), ATF may search its own records.

B. ATF Demand Letter

The Department of Justice, of which ATF is a constituent agency, announced a new multiple sales reporting requirement for semi-automatic rifles on July 11, 2011. The next day, ATF sent a demand letter to all dealers in Arizona, California, New Mexico, and Texas. The letter stated:

To assist in its efforts investigating and combating the illegal movement of firearms along and across the Southwest border, the ATF is requiring licensed dealers and pawnbrokers in Arizona, California, New Mexico, and Texas to submit record information concerning multiple sales of certain rifles. ATF has the authority to issue this letter to collect such record information from federal firearms licensees (FFLs) under 18 U.S.C. § 923(g)(5), and that authority has been delegated by ATF's Acting Director to the Chief of the National Tracing Center.

You must submit to the [ATF] reports of multiple sales or other dispositions whenever, at one time or during any five consecutive business days, you sell or otherwise dispose of two or more semi-automatic rifles capable of accepting a detachable magazine and with a caliber greater than .22 (including .223/5.56 caliber) to an unlicensed person. You are required to report all such sales that occur on or after August 14, 2011. You must ...


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