SPEAKERS CONTENTS INSERTS
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26–765 PDF
2006
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
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Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
DANIEL E. LUNGREN, California
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
BOB INGLIS, South Carolina
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL ISSA, California
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
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STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
CHRIS VAN HOLLEN, Maryland
DEBBIE WASSERMAN SCHULTZ, Florida
PHILIP G. KIKO, General Counsel-Chief of Staff
PERRY H. APELBAUM, Minority Chief Counsel
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Subcommittee on Crime, Terrorism, and Homeland Security
HOWARD COBLE, North Carolina, Chairman
DANIEL E. LUNGREN, California
MARK GREEN, Wisconsin
TOM FEENEY, Florida
STEVE CHABOT, Ohio
RIC KELLER, Florida
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas
ROBERT C. SCOTT, Virginia
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ANTHONY D. WEINER, New York
MICHAEL VOLKOV, Chief Counsel
DAVID BRINK, Counsel
CAROLINE LYNCH, Counsel
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JASON CERVENAK, Full Committee Counsel
BOBBY VASSAR, Minority Counsel
C O N T E N T S
MARCH 28, 2006
OPENING STATEMENT
The Honorable Howard Coble, a Representative in Congress from the State of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security
The Honorable Robert C. Scott, a Representative in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security
WITNESSES
Ms. Audrey Stucko, Deputy Assistant Director, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE)
Oral Testimony
Prepared Statement
Mr. Richard E. Gardiner, Attorney at Law, Fairfax, Virginia
Oral Testimony
Prepared Statement
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Lt. Michael James Lara, Tucson Police Department, Tucson, Arizona
Oral Testimony
Prepared Statement
Ms. M. Kristen Rand, Legislative Director, Violence Policy Center
Oral Testimony
Prepared Statement
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
Prepared Statement of Bruce R. Barany, Co-Owner, The General Store, Spokane, Washington
Prepared Statement of James. M. Faircloth, Owner, Jim's Pawn Shop, Inc., Fayetteville, North Carolina
Prepared Statement of Stanton Myerson, Owner, Lou's of Upper Darby, Inc., Upper Darby, Pennsylvania
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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:]
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PREPARED STATEMENT OF AUDREY STUCKO
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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.
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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.
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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.
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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:]
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PREPARED STATEMENT OF RICHARD E. GARDINER
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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.
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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.
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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.
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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
[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]
Mr. COBLE. I thank you, Lieutenant, for being with us.
Ms. Rand.
TESTIMONY OF M. KRISTEN RAND, LEGISLATIVE DIRECTOR, VIOLENCE POLICY CENTER
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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.
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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
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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.
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At the time, ATF identified straw purchasing(see footnote 1) as the preferred method by which weapons were obtained by criminals in the District of Columbia.
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.(see footnote 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.
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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.(see footnote 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.
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.
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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),(see footnote 4) the federal statute governing administrative adjudications.
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.(see footnote 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.
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.''(see footnote 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.''(see footnote 7)
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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:
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.(see footnote 8)
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In 2005, two FFLs in Fairmont, West Virginia, were indicted for facilitating straw purchases at two pawn shops.(see footnote 9)
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.(see footnote 10)
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.(see footnote 11)
In 2003, the owner of a Pennsylvania gun shop and his father were sentenced to prison terms for supplying guns to a straw purchaser.(see footnote 12)
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.
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Let's not go back to the days when America had more gun dealers than gas stations.
ATTACHMENT
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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?
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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?
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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.
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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.
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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.
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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?
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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?
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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?
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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.
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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.
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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.
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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.
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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——
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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.
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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.
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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.
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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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(Footnote 1 return)
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.
(Footnote 2 return)
See 18 U.S.C. §921 (a)(21) and §923 ((d)(1)(E).
(Footnote 3 return)
GAO Report, Federal Firearms Licensees: Various Factors Have Contributed to the Decline in the Number of Dealers, (March 1996).
(Footnote 4 return)
5 U.S.C. §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.
(Footnote 5 return)
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).
(Footnote 6 return)
18 U.S.C. §923(f)(4).
(Footnote 7 return)
132 Cong. Rec. H507 (1986) (statement of Rep. Hughes).
(Footnote 8 return)
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.
(Footnote 9 return)
Associated Press, ''Five charged in illegal gun sales,'' March 2, 2005, State and Regional.
(Footnote 10 return)
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.
(Footnote 11 return)
Fred Kelly, ''Woman admits buying 2 pistols on behalf of felons,'' The Indianapolis Star, March 11, 2004, p. 3B.
(Footnote 12 return)
Associated Press, ''News in brief from western Pennsylvania,'' March 22, 2003, State and Regional.