U.S. House Told ATF Bureau In Need of Major Reform
Jeff Johnson, CNSNews.com
Wednesday, March 29, 2006
An Arizona police supervisor Tuesday said the federal agency charged with regulating the nation's firearms industry "absolutely devastated" his career and his personal life, all because he gave a gun to a friend as a gift.
Tucson Police Lt. Michael Lara was among a panel of witnesses who told the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is in need of serious reform.
Lara purchased a handgun from a federally licensed firearms dealer (FFL) in 2003, planning to give it to a friend who was licensed by the Arizona State Police to carry a concealed weapon. One of the forms he completed as part of the purchase asked if he was the "actual buyer" of the firearm. The 28-year law enforcement veteran read the definition of "actual buyer" on the form and answered the question "yes."
During a review of the gun dealer's records, ATF noticed Lara's purchase and began investigating it. Lara was placed on administrative leave with pay, but even after an internal affairs investigation cleared him of any wrongdoing, ATF continued to pursue the case for seven additional months.
"ATF indicted me, claiming that I had not purchased the firearm as a gift, but that I had actually bought it for my friend using her money," Lara recalled.
The crime Lara was accused of is typically referred to as a "straw purchase," when one person buys a firearm on behalf of another person who is, usually, legally disqualified from gun ownership.
Lara said he initially believed that ATF would investigate the charges objectively, determine that he was innocent and move on to other cases. He now complains that ATF never interviewed any of the witnesses to the purchase of the firearm or his presentation of it to his friend as a gift. Lara said he is still baffled by the agency's actions.
"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," Lara concluded. "It was obvious that there was no intent of wrongdoing."
After he was processed as a federal prisoner, Lara was released on his own recognizance, but now was unemployed and the recipient of intense media scrutiny, awaiting his day in court.
"I lost over $216,000 in saving and earnings. I had to refinance my home to help pay the bills and the attorney's fees," Lara recalled. "Three months after my arrest, my case went to trial. At the end of the trial, the jury deliberated less than one hour before finding me innocent of the charges."
Lara would wait two more months for his badge to be returned to him. But the ATF prosecution did not end when he resumed his police career.
"On my first day back to work I was given a 40-hour suspension without pay for 'criminal activity' because I had been indicted," Lara continued. "My professional career is shot. It's now been three years after the event and I am still a patrol lieutenant. It was made clear to me when I returned to work that I would never see any advancement."
The ATF representative present at the hearing did not address Lara's case, but Kristen Rand, legislative director for the anti-gun Violence Policy Center, did.
"Mr. [sic] Lara's situation sounds extremely unpleasant," Rand said, "but we should be careful not to just legislate based on one anecdote."
Richard Gardiner, a Virginia attorney and an expert in federal firearms laws who often represents FFLs and gun owners under ATF scrutiny, argued that Lara's case is actually closer to being the rule than the exception.
"The ATF tends to focus or has a significant focus on trivial, immaterial violations which are unrelated to public safety," Gardiner said. "And they impose unreasonable standards of perfection which are simply not humanly achievable."
As an example, Gardiner recalled an ATF review of 880 "Firearms Transaction Record Part I - Over-The-Counter" forms collected by one of his gun dealer clients. Of the 34,320 blocks of information collected on those documents, ATF found 19 clerical errors.
"That is a 99.96 percent perfect completion record," Gardiner noted. "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 four one-hundredths of a percent because he knew what his legal obligations were."
The bureau revoked that gun dealer's license and closed his business.
"Essentially, what the ATF position is, is that human beings can make no mistakes," Gardiner complained. "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.'"
Audrey Stucko, deputy assistant director for ATF's enforcement programs and services, defended the agency's actions.
"Under the Gun Control Act, license revocation may be undertaken for any willful violation of the law or regulations," Stucko said. "The term 'willful' is not defined in the law."
Federal courts have often sided with ATF's interpretation that the term "willful" means only that the gun dealer had prior knowledge of a requirement and, subsequent to gaining that knowledge, violated it, with or without intent. Gardiner told of cases where ATF identified customer responses of "Y" or "N" rather than "yes" or "no" in written responses to questions as "willful violations" on the part of gun dealers under investigation. Other dealers lost their licenses, Gardiner said, because customers had accurately listed their street address, city, state and zip code, but failed to include their county of residence.
"This is clearly not what Congress had in mind when it enacted the 'willful' standard in 1986," Gardiner argued. "A Senate Judiciary Committee report stated that the purpose for adding 'willfully' to the license revocation procedure is, and I quote, 'to insure that licenses are not revoked for inadvertent errors or technical mistakes.' But that is precisely what ATF is doing."
Subcommittee Chairman Howard Coble (R-N.C.) expressed concern about how ATF was spending some of the taxpayer dollars used to fund its work.
"ATF should not waste valuable resources worrying about ministerial errors committed by licensees," Coble said. "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."
Coble also addressed ATF's pursuit of law-abiding gun buyers like Lt. Michael Lara.
"Prosecutions that are aimed at only padding case statistics - and I'm not suggesting that that's done, but if it is done - not only waste government resources but can also tarnish a law-abiding citizen's reputation as well, and cause individuals severe financial distress," Coble said.
His subcommittee is considering legislation that would give ATF other options besides revoking a gun dealer's license for lesser violations and unintentional errors. The proposal also includes a statutory definition of "willful violations" that would force ATF to prove that a gun dealer knowingly and intentionally defied a law or regulation before sanctions could be imposed.
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