Blaustein & Reich, Inc. v. Buckles

• Decision Date: 17 September 2002
• Docket Number: No. Civ.A. 2:01CV875.,Civ.A. 2:01CV875.
• Citation: 220 F.Supp.2d 535
• Court: U.S. District Court — Eastern District of Virginia
• Parties: BLAUSTEIN & REICH, INC., d/b/a Bob's Gun & Tackle Shop, Plaintiff, v. Bradley A. BUCKLES, Director, Bureau of Alcohol, Tobacco and Firearms, Defendant.

220 F.Supp.2d 535

BLAUSTEIN & REICH, INC., d/b/a Bob's Gun & Tackle Shop, Plaintiff, v. Bradley A. BUCKLES, Director, Bureau of Alcohol, Tobacco and Firearms, Defendant.

No. Civ.A. 2:01CV875.

United States District Court, E.D. Virginia, Norfolk Division.

September 17, 2002.

Richard E. Gardiner, Stephen Porter Halbrook, Fairfax, VA, for plaintiffs.

Lawrence Richard Leonard, Office of the U.S. Attorney, Norfolk, VA, Judry Laeb Subar, U.S. Department of Justice, Washington, DC, for defendants.

OPINION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

MORGAN, District Judge.

PRELIMINARY STATEMENT

This matter comes before the Court on the Defendant's motion for summary judgment. The Court held a hearing on the motion on August 14, 2002 and granted the motion for summary judgment from the bench. This Order sets forth more completely the Court's reasoning.

The Bureau of Alcohol, Tobacco and Firearms (ATF) has a statutory duty pursuant to the Gun Control Act of 1968(GCA), as amended¹, to trace firearms to keep them out of the hands of criminals, unauthorized juveniles, felons, and other prohibited persons, and to assist law enforcement officials in their efforts to reduce crime and violence. The ATF's statutory duty to trace guns is in tension, however, with the statutory prohibition that forbids the ATF from establishing a national firearms registry. The ATF accomplishes its gun trace function without a national registry by accessing where necessary records held on file by gun manufacturers, retail gun dealers, and others. In lieu of maintaining a centralized system of records in-house (e.g. a national gun registry), ATF requests specific records regarding an individual firearm from these entities in the context of each discrete gun trace. This system, as will be seen, is not without its limitations.

In February 2000, ATF prepared a report assessing the effectiveness of the Agency's gun tracing capability. BUREAU OF ALCOHOL, TOBACCO & FIREARMS, COMMERCE IN FIREARMS IN THE UNITED STATES (2000) [hereinafter COMMERCE IN FIREARMS]. Based on the findings in COMMERCE IN FIREARMS, ATF launched two new data collection efforts. It implemented these two data collection efforts by generating two different versions of "demand letters" to seek the type of information from gun dealers that would, according to the findings in COMMERCE IN FIREARMS, improve the effectiveness of the ATF gun tracing program.

The first version of the demand letter was challenged by a gun dealer in Maryland last year. The gun dealer prevailed at the District Court but the U.S. Court of Appeals for the Fourth Circuit reversed the District Court and ruled for the Government. RSM v. Bureau of Alcohol, Tobacco and Firearms, 254 F.3d 61 (2001). The second version of the demand letter gives rise to the case now before this Court on Defendant's Motion for Summary Judgment.

ATF's gun tracing capability under the GCA depends heavily on records maintained by the Federal Firearms Licensee (FFL). Bob's Guns, the Plaintiff, is an FFL because it is a retail gun dealer. Persons in the business of manufacturing, importing or dealing in firearms (or importing or manufacturing ammunition) are classified as FFLs and they must obtain a license from ATF (18 USC § 923(a)). As a condition of its license, each FFL must maintain records of importation, production, shipment, receipt, sale, or other disposition of firearms at its place of business for such period, and in such form, as ATF regulations prescribe (18 USC § 923(g)). So, when a gun is recovered from a crime scene or from the person of an individual who is forbidden access to guns (e.g. a felon or a juvenile), law enforcement officials oftentimes request a gun trace from ATF.

This crime gun trace process, and its limitations, are described in detail in COMMERCE IN FIREARMS at pages 19-20 & 22-27. ATF possesses records that identify the entity that manufactured the gun (or imported the gun into the country). In nearly all cases, however, ATF records do not identify the retail dealer, the first retail purchaser, nor any subsequent purchaser. ATF commences a gun trace by requesting from the manufacturer (or importer) the identity of the person or organization to whom the gun was delivered. If the person or entity who received the gun from the manufacturer (or importer) is an FFL, then ATF can obtain disposition records for that gun on request. And so ATF gun tracking proceeds in daisy chain fashion through the distribution chain to the retail dealer. ATF then requests the dealer to examine its records to determine the identity of the first retail purchaser. The trail stops for ATF at the identity of the first retail purchaser because Federal law does not require unlicensed sellers to preserve transfer records, nor are gun owners required to keep a record of the serial number of their firearms or to report lost or stolen firearms. ATF therefore usually cannot trace a gun once the first retail purchaser sells the gun to another private party, or when the first retail purchaser loses the gun or has it stolen from him. This "secondhand sale" phenomenon creates a significant gap in the gun tracing system (including the possibility of multiple private party sales) that can make it difficult or impossible for ATF to trace the ownership of a gun.

The paper trail is re-established at least in part if a private party sells a gun to an FFL. The difficulty for ATF in this latter regard, however, is that ATF has no way of knowing that records of interest concerning a secondhand sale are on file at a particular FFL. There were in late 1999 some 100,000 or more FFLs at various locations around the nation. When attempting a gun trace following a secondhand sale, ATF has no way of knowing that one of these FFLs may have purchased the particular gun in question. There is no link in the records accessible to ATF between the first retail purchaser and the FFL who subsequently purchases a secondhand gun. This problem of the missing link means that the ATF gun tracing capability encounters serious limitations once a gun passes into private ownership.

COMMERCE IN FIREARMS evaluated the efficacy of the ATF gun tracing capability and gave rise to the new data collection effort challenged by Plaintiff in the instant case. ATF concluded that

there is a subset of current dealers that have both a high volume of traces and for which more than half of those traces had a time to crime of less than three years. This particular indicator is a useful measure of the number of dealers whose guns move frequently and quickly end up in the wrong hands.

COMMERCE IN FIREARMS at 25.

ATF determined that Bob's Guns is one of the dealers with a high volume of crime gun traces and a short time to crime.²

On February 7, 2000, ATF sent a demand letter to Bob's Guns requiring Plaintiff to submit quarterly reports regarding secondhand guns obtained from non-FFLs. ATF required Bob's Guns to identify the manufacturer/importer, model of the firearm, caliber or gauge, and the serial number. ATF instructed the Plaintiff to forego submitting information about the individual from whom Bob's Guns acquired the secondhand gun or the individual to whom Bob's Guns transferred the secondhand gun. (Bob's Guns is obligated by the GCA as amended, however, to retain information regarding the seller's identity and the purchaser's identity on file and it is reasonable to expect that ATF would request that information in the context of a crime gun trace.) The purpose of this demand letter was to cure in part the ATF's "missing link" problem described above.

FINDINGS OF FACT³

In accordance with Local Rule 56(B)⁴, the Court's Findings of Fact will be those set forth at pages 8-12 of the Defendant's Memorandum of Law in Support of Defendant's Motion for Summary Judgment. The Court adopts the Defendant's "Statement of Undisputed Facts" in whole because the Plaintiff's reply brief contained no specifically captioned section listing the material facts that it wished to dispute. The Plaintiff's noncompliance with the requirements set forth in Local Rule 56(B) triggers the consequence set forth in that rule, e.g. the facts identified by the Defendant as material facts as to which there is no genuine issue in its opening brief are admitted. These admitted facts are as follow:

1. In a report issued in February 2000, ATF described how it has exercised its statutory authority to conduct gun traces from federally licensed firearms dealers. See COMMERCE IN FIREARMS, A.R. 38.⁵

2. A firearms trace may be initiated when a federal, state or local law enforcement officer recovers a firearm, and the officer's law enforcement agency requests that ATF's National Tracing Center conduct a trace. COMMERCE IN FIREARMS, A.R. 38. The Center then systematically tracks the movement of the firearm from its manufacturer or importer through the distribution chain to the first retail dealer, who is asked to identify the first retail purchaser. Id., A.R. 39.

3. Federal firearms licensees fill a crucial role in ensuring the effective functioning of ATF's tracing system, a fact recognized by Congress when it required licensees to "respond immediately to, and in no event later than 24 hours after the receipt of" a request by ATF to trace a firearm in the course of a bona fide criminal investigation. 18 U.S.C. § 923(g)(7). See also 27 C.F.R. § 178.25a.

4. While firearms tracing can significantly aid law enforcement agencies in their efforts to solve crimes and detect trafficking patterns, the tracing system does have limitations. COMMERCE IN FIREARMS, A.R. 44-46.

5. One weakness in the tracing system involves uncooperative dealers. Traces can be conducted in a timely manner and be completed successfully only if FFLs keep proper records and cooperate with ATF trace requests. In 1999, approximately .1% of FFLs were either nonresponsive to a trace request, slow to respond on at least three occasions,...