Frank v. US, 2:94-CV-135.

Decision Date02 August 1994
Docket NumberNo. 2:94-CV-135.,2:94-CV-135.
PartiesSheriff Samuel FRANK, Plaintiff, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — District of Vermont

Andrea L. Gallitano, Otterman & Allen, Barre, VT, for plaintiff.

Thomas D. Anderson, Asst. U.S. Atty. D. Vt., Burlington, VT and Michael Sitcov, U.S. Dept. of Justice Washington, DC, for defendant.


PARKER, Chief Judge.

This matter came before the Court on Plaintiff's Motions for a Temporary Restraining Order and/or Preliminary Injunction. The Court held a hearing on the Motion for a Preliminary Injunction on June 2, 1994. At that time the parties agreed to consolidate the hearing with a trial on the merits pursuant to Fed.R.Civ.P. 65(a)(2). After considering all testimony, affidavits and arguments submitted by the parties1, the Court enters the following findings of fact, opinion, and order on the merits of this case.

Findings of Fact

1. Sheriff Samuel Frank is the elected Sheriff of Orange County, Vermont, a jurisdiction of 992 square miles with a population of approximately 26,000 persons.

2. The Orange County Sheriff's Department consists of two full time law enforcement officers: Sheriff Frank and Deputy Dennis McClure.

3. The duties of the Sheriff are defined by 24 V.S.A. Chapter 5, subchapter 5.

4. On a typical day, the Sheriff's office will have the Sheriff and one full time deputy on duty.

5. The Sheriff's Department provides court security in the county, transports state prisoners, transports some mental health patients, serves process and writs, investigates crime, and patrols the jurisdiction.

6. Funding for the Sheriff's Department comes from three sources: the State of Vermont, Orange County, and private security contracts.

7. The Vermont State Police respond to criminal activity in Orange County, enforce motor vehicle laws, and patrol the county. The Vermont State Police do not provide court security, prisoner transport, mental health transport, or service of process in Orange County.

8. On January 21, 1994 the Bureau of Alcohol, Tobacco, and Firearms (ATF) sent an "Open Letter to State and Local Law Enforcement Officials" on the topic of the so-called Brady Bill2. In this letter ATF discussed the definition of chief law enforcement officer ("CLEO"), which the Brady Bill defines as "the chief of police, the sheriff, or an equivalent officer or the designee of such individual," and stated its opinion that the definition of CLEO was broad enough, in some cases, to apply to more than one official in a given jurisdiction. The letter also expressed ATF's opinion that, in jurisdictions where more than one official satisfied the definition of CLEO, law enforcement officials could agree on having only one serve as CLEO.

9. On January 31, 1994 a meeting of all interested law enforcement agencies was held at Norwich University to discuss the implementation of the Brady Act in Vermont. At this meeting, representatives of local law enforcement agencies, the Vermont State Police, and the Bureau of Alcohol, Tobacco and Firearms (ATF) were present.

10. At the meeting, the obligations of CLEOs under the Brady Act was discussed.

11. Also at the meeting, James Walton, the Commissioner of Public Safety in Vermont, stated that the Vermont State Police was willing to function as the CLEO for Brady Act purposes, for any jurisdiction in which the sheriff or local police department declined to accept that responsibility.

12. Sheriff Frank stated his willingness to serve as CLEO for Orange County at the meeting, believing that the he was required to do so because he was the Sheriff or Orange County and thus directly implicated by the Act.

13. In his capacity as CLEO, Sheriff Frank received notices of proposed firearm transactions from federally licensed dealers, and either Sheriff Frank or his Deputy conducted some type of background check, ranging in time from 15 minutes to six hours, for each proposed transaction to attempt to determine whether it would violate the law.

14. Prior to the enactment of the Brady Act, Sheriff Frank would sometimes conduct criminal record checks in the normal course of his duties. The Sheriff's Department workload with respect to background checks approximately doubled after the Brady Act became effective.

15. On May 10, 1994 Sheriff Frank filed this case, seeking to have enforcement of the Brady Act enjoined and declared unconstitutional as violative of Article I, sec. 8, as well as the Fifth and Tenth Amendments of the Constitution.

16. Upon learning of the instant challenge to the Brady Act, Commissioner Walton wrote to Sheriff Frank and informed him he was requesting ATF to substitute Lt. George Contois of the Vermont State Police for Sheriff Frank as the CLEO for Orange County because Commissioner Walton believed that Sheriff Frank's conduct in challenging the Brady Act's constitutionality was evidence of his desire not to serve as CLEO.

17. After receiving Commissioner Walton's letter, Sheriff Frank has continued to perform background checks when he is notified of a proposed transfer by federal firearms dealers.

18. Sheriff Frank has not received notice from any party other than Commissioner Walton regarding his status as CLEO for Orange County.

Conclusions of Law, Opinion and Order

To properly analyze Sheriff Frank's challenge to the Brady Act, it is necessary to review both the statutory framework of the Gun Control Act and the provisions of the Brady Act itself prior to any discussion of Sheriff Frank's complaint.

I. Statutory Framework

The so-called Brady Act amends the Gun Control Act of 1968, 18 U.S.C. § 921 et seq., which created a federal regulatory scheme governing the manufacture and distribution of firearms by private persons. One feature of the Gun Control Act is a requirement that a federal license be obtained to engage in the business of manufacturing, importing, or dealing in firearms in interstate or foreign commerce. 18 U.S.C. § 923(a). Licensees are required to maintain records of their transactions and to allow the Bureau of Alcohol, Tobacco, and Firearms to inspect the records. 18 U.S.C. § 923(g). Licensees are also prohibited from transferring firearms or ammunition to any person the licensee knows, or has reasonable cause to believe: is under indictment for, or has been convicted of a crime punishable by imprisonment for a term exceeding one year; is a fugitive from justice; is an unlawful user of certain illegal substances; has been adjudicated a mental defective; is an illegal alien; has been dishonorably discharged from the armed forces; or has renounced his or her U.S. citizenship. 18 U.S.C. § 922(d)(1)-(7).

Prior to the passage of the Brady Act, federal firearms dealers were required to have customers fill out ATF form 4473, on which the customer certified that he or she was not prohibited by law from receiving or possessing a firearm. 27 C.F.R. § 178.124. This self-certification was the only method by which a federal firearms dealer could determine whether or not a transfer was prohibited.

II. The Brady Act

The interim provisions3 of the Brady Act alter the prior scheme by imposing on the licensed dealers an obligation, under certain circumstances4, to have the prospective transferee fill out an ATF Form 5000.35. 59 Fed.Reg. 7110, 7112, Feb 14, 1994. On this form the transferee must provide a statement that includes his or her name, date of birth, and address as they appear on a designated piece of picture identification. 18 U.S.C. § 922(s)(3)(A). The transferee must also state under oath that he or she is not barred from purchasing or receiving a firearm in interstate or foreign commerce. 18 U.S.C. § 922(s)(3)(B). The licensed dealer must then transmit the contents of the form to the Chief Law Enforcement Officer ("CLEO") of the place of residence of the prospective purchaser within one day of its completion and send a copy of the form to that official. 18 U.S.C. § 922(s)(1)(A)(i)(III)-(IV).

Upon receipt of the form, the Brady Act dictates that the CLEO "shall make a reasonable effort to ascertain within 5 business days whether receipt or possession of a handgun would be in violation of the law, including research in whatever State and local recordkeeping systems are available and in a national system designated by the Attorney General." 18 U.S.C. § 922(s)(2). The federally licensed dealer is prohibited from transferring the firearm until he or she is advised by the CLEO that the transfer would not be illegal, or until 5 days have elapsed since the CLEO received notice of the proposed transfer, whichever occurs first. 18 U.S.C. § 922(s)(1)(A).

In the event that it is determined that the proposed transfer does not violate the law, the CLEO is also required to destroy any records received or generated due to the notice of proposed transfer within twenty days after the completion of the pre-transfer application. 18 U.S.C. § 922(s)(6)(B)(i). A purchaser who is determined ineligible to receive a handgun based on the CLEO's investigation may, upon request, obtain a written explanation from the CLEO explaining the reasons for denial. 18 U.S.C. § 922(s)(6)(C).

The Brady Act also contains a penalty provision, 18 U.S.C. § 924(a)(5), which states: "Whoever knowingly violates subsection (s) or (t) of section 922 shall be fined not more than $1,000, imprisoned for not more than 1 year, or both."

III. The Complaint

Sheriff Frank's complaint seeks declaratory and injunctive relief concerning enforcement of the Brady Act. He contends that certain provisions of 18 U.S.C. § 922(s), specifically § 922(s)(2) (requiring CLEOs to make a reasonable effort to ascertain whether a proposed transfer would violate the law), § 922(s)(6)(B) (requiring CLEOs to destroy records relating to background checks), and § 922(s)(6)(C) (requiring CLEOs to provide written reasons to those who are determined ineligible for the transfer of a handgun) exceed...

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7 cases
  • Mack v. U.S.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • September 8, 1995
    ...checks, destroy sworn statements, and provide written response to those denied a handgun, held unconstitutional); Frank v. United States, 860 F.Supp. 1030 (D.Vt.1994) (provision of Brady Act requiring CLEOs to perform background checks unconstitutional); McGee v. United States, 863 F.Supp. ......
  • Orange Environment, Inc. v. County of Orange, 91 Civ. 8688(GLG).
    • United States
    • U.S. District Court — Southern District of New York
    • August 22, 1994
  • Frank v. U.S.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 14, 1996
    ...the Tenth Amendment because officers of the Vermont State Police are not CLEOs under 18 U.S.C. § 922(s)(8). See Frank v. United States, 860 F.Supp. 1030, 1037-39 (D.Vt.1994). It ruled further that the background check provision is barred by the Tenth Amendment, but that the provision is sev......
  • National Rifle Ass'n of America v. Magaw
    • United States
    • U.S. District Court — Western District of Michigan
    • November 22, 1995 unpersuaded by the cases cited by the plaintiffs in support of their position that their claims are justiciable. Frank v. United States, 860 F.Supp. 1030 (D.Vt.1994) and Printz v. United States, 854 F.Supp. 1503 (D.Mont.1994)—both suits brought by sheriffs to challenge the constitutional......
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1 books & journal articles
  • Keeping guns out of the "wrong" hands: the Brady law and the limits of regulation.
    • United States
    • Journal of Criminal Law and Criminology Vol. 86 No. 1, September 1995
    • September 22, 1995
    ...States, 1995 WL 527616, 64 USLW 2169 (9th Cir. 1995) (holding background check provision constitutional); Frank v. United States, 860 F. Supp. 1030 (D. Vt. 1994) (holding background check provision unconstitutional); Koog v. United States, 852 F. Supp. 1376 (W.D. Tex. 1994) (holding backgro......

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