Suydam v. U.S. Bureau of Alcohol, Tobacco, Firearms & Explosives

Decision Date22 February 2012
Docket NumberNo. 2:11–cv–00055–JAW.,2:11–cv–00055–JAW.
CourtU.S. District Court — District of Maine


Stephen C. Whiting, The Whiting Law Firm, Portland, ME, for Plaintiff.

John G. Osborn, U.S. Attorney's Office, Portland, ME, for Defendant.


JOHN A. WOODCOCK, JR., Chief Judge.

The Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) seeks summary judgment against Richard Suydam, a federally licensed firearms dealer, upholding its revocation of Mr. Suydam's license for his willful violation of the record-keeping requirements of federal firearms regulations. The Court concludes that the ATF's revocation was authorized and summary judgment for the ATF is appropriate.


On February 11, 2011, Richard Suydam filed a complaint seeking de novo judicial review, pursuant to 18 U.S.C. § 923(f)(3), of the ATF's revocation of his federal firearms license. Compl. (Docket # 1). The ATF answered on May 4, 2011. Answer (Docket # 7).

On June 17, 2011, the ATF moved for summary judgment and filed a statement of material facts. Def.'s Mot. for Summ. J. (Docket # 9) ( Def.'s Mot,); Def.'s Statement of Undisputed Material Facts in Support of Def.'s Mot. for Summ. J. (Docket # 10) (DSMF). Mr. Suydam filed his opposition on June 30, 2011, along with a response to the ATF's statement of facts and a set of additional facts. Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. (Docket # 14) ( Pl.'s Opp'n ); Pl.'s Opposing Statement of Material Facts (Docket # 15) (PRDSMF, PSAMF). The ATF filed its response to Mr. Suydam's opposition and a reply statement of facts on July 14, 2011. Def.'s Reply Mem. in Support of Mot. for Summ. J. (Docket # 17) ( Def.'s Reply ); Def.'s Reply Statement of Material Facts (Docket # 18) (DRPSAMF).

Upon Mr. Suydam's motion, the Court held oral argument on the ATF's motion for summary judgment on February 17, 2012.

B. Statement of Facts1

1. Background

Richard E. Suydam has held ATF Importer's Federal Firearms License (FFL) No. 6–01–017–08–3D–33134 since 1987. DSMF ¶¶ 1, 3; PRDSMF ¶¶ 1, 3. The Veterans Administration has determined Mr. Suydam to be 70% disabled and the Social Security Administration has determined him 100% disabled. PSAMF ¶ 12; DRPSAMF ¶ 12. He is an insulin-dependent diabetic; prolonged physical exertion can cause a rapid decrease in blood sugar, resulting in a diabetic coma, which has happened to Mr. Suydam on several occasions. PSAMF ¶ 13; DRPSAMF ¶ 13. Mr. Suydam also suffers from military service-related back and knee injuries, making it difficult to walk up and down stairs, to bend over, to lift objects, or to get down on his knees, and he suffers from severe chronic back spasms. PSAMF ¶ 14; DRPSAMF ¶ 14. He has a chronic left shoulder impingement problem that limits his ability to reach for and pick up things. PSAMF ¶ 15; DRPSAMF ¶ 15. Mr. Suydam also has a blood pressure problem, which periodically causes him to pass out. PSAMF ¶ 16; DRPSAMF ¶ 16. He has arthritis in his spine and feet, which makes it difficult for him to walk, bend over, and lift objects. PSAMF ¶ 17; DRPSAMF ¶ 17. Mr. Suydam also suffers from two mental conditions, attention deficit and hyperactivity disorder and obsessive compulsive disorder, that make it extremely difficult for him to focus and stay on task. PSAMF ¶ 18; DRPSAMF ¶ 18.

2. The 2008 Inspection and Warnings

On September 9, 2008, Industry Operations Investigator (IOI) Adrienne Brown inspected Mr. Suydam's business for compliance with the requirements of the Gun Control Act (GCA) and related federal firearms regulations. DSMF ¶ 4; PRDSMF ¶ 4. During the inspection, IOI Brown asked to review Mr. Suydam's Acquisition and Disposition Records (A & D Book). DSMF ¶ 6; PRDSMF ¶ 6. Mr. Suydam produced an A & D Book for the period from 2002 to the date of the inspection but was unable to produce an A & D Book for the period from 1989 to 2002. DSMF ¶¶ 7–8; PRDSMF ¶¶ 7–8.

During the inspection, IOI Brown reviewed with Mr. Suydam the GCA's federal firearms regulations with which Mr. Suydam was required to comply. DSMF ¶ 9; PRDSMF ¶ 9. This review included the requirement that all federal firearms licensees maintain an A & D Book, pursuant to 27 C.F.R. § 478.125(e), and maintain their records for no less than twenty years, pursuant to 27 C.F.R. § 478.129. DSMF ¶¶ 11–12; PRDSMF ¶¶ 11–12. During this review, IOI Brown completed and Mr. Suydam signed an Acknowledgement of Federal Firearms Regulations checklist, listing each regulation IOI Brown and Mr. Suydam had reviewed. DSMF ¶ 10; PRDSMF ¶ 10.

Following the September 9, 2008 inspection, IOI Brown completed a Report of Violations (ROV), setting forth the violations of the federal firearms regulations she said she discovered by her inspection.2DSMF ¶ 13; PRDSMF ¶ 13. The ATF cited Mr. Suydam for two violations: 1) failure to record the acquisition of a firearm not later than 15 days after the date of importation or other acquisition, and 2) failure to retain an A & D Book from 1989 to 2002 for the disposition of firearms to federal firearms licensees. DSMF ¶¶ 14–15; PRDSMF ¶¶ 14–15. On September 22, 2008, IOI Brown returned and provided the ROV to Mr. Suydam; the two reviewed the violations and discussed the steps Mr. Suydam should take to ensure Mr. Suydam's future compliance. DSMF ¶ 16; PRDSMF ¶ 16. During this meeting, both IOI Brown and Mr. Suydam signed the ROV. DSMF ¶ 17; PRDSMF ¶ 17.

On February 5, 2009, IOI Brown and Chris S. Turett, Area Supervisor, Boston Area Office, ATF, held a warning conference with Mr. Suydam. DSMF ¶ 18; PRDSMF ¶ 18. Supervisor Turett and IOI Brown discussed with Mr. Suydam his violations, as set forth in the ROV, and the importance of complying with federal firearms regulations, especially the importance of maintaining an A & D Book and having it available for review by the ATF. DSMF ¶ 19; PRDSMF ¶ 19. At the conference, Mr. Suydam stated that he understood the regulations requiring proper maintenance of an A & D Book and the importance of compliance with these regulations. DSMF ¶ 20; PRDSMF ¶ 20. The next day, on February 6, 2009, Supervisor Turett sent a follow-up letter to Mr. Suydam via certified mail, which Mr. Suydam received and signed for. DSMF ¶ 21; PRDSMF ¶ 21. The letter set forth the ATF's understanding of the discussions at the warning conference. DSMF ¶ 22; PRDSMF ¶ 22. The letter also reminded Mr. Suydam that “future violations, repeat or otherwise, could be viewed as willful and may result in the revocation of [his] license” and that he could “anticipate further inspections to ensure [his] compliance.” DSMF ¶¶ 23–24; PRDSMF ¶¶ 23–24.

3. The A & D Book Variance

On July 12, 2009, Mr. Suydam requested a variance from the ATF concerning the keeping of an A & D Book.3 DSMF ¶ 25; PRDSMF ¶ 25. The ATF granted the requested variance on September 14, 2009, allowing Mr. Suydam to combine his acquisition and distribution records into one A & D Book, but the ATF listed certain conditions, including reiterating the requirement that the A & D Book be maintained separate from other records and be made available to the ATF upon request. DSMF ¶ 27; PRDSMF ¶ 27. Mr. Suydam states that he was unsure whether the variance was granted and so continued to maintain two separate A & D Books, one for importation and one for curios and relics. PRDSMF ¶ 27. While the variance request was one commonly sought from federal firearms licensees and commonly granted by the ATF, it did not allow for any other deviations from federal firearms regulations. DSMF ¶¶ 28–29; PRDSMF ¶¶ 28–29.

4. The 20022009 A & D Book Goes Missing

In mid to late November of 2009, Mr. Suydam realized his A & D Book was missing. PSAMF ¶ 1; DRPSAMF ¶ 1. Mr. Suydam assumed workers had inadvertently moved the book into his second floor storage room (without Mr. Suydam's knowledge or permission) when they were moving some other books in his home. PSAMF ¶ 2; DRPSAMF ¶ 2.

The second floor storage room is approximately 12 feet long and 9 feet wide. PSAMF ¶ 3; DRPSAMF ¶ 3. The room held at least 5,000 books at the time the 2002 A & D Book went missing.4 PSAMF ¶ 4; DRPSAMF ¶ 4. These books were stacked chest high, with one “huge” stack about seven feet long and five feet wide in the middle of the room, and numerous stacks a few feet long and about 2 feet wide all around the perimeter of the room; there was not enough space for Mr. Suydam to walk between the stacks of books. PSAMF ¶ 5; DRPSAMF ¶ 5. While moving books from the first floor of Mr. Suydam's home to the second floor storage room, the workers rearranged and restacked the books in the room; Mr. Suydam knew that if the workers had moved the A & D Book into that room it could be anywhere, including in the middle of one of the stacks. PSAMF ¶ 6; DRPSAMF ¶ 6.

Mr. Suydam asserts that upon realizing the book was missing, he notified the ATF and an agent told him to start a new book until he found the missing one. 5 PRDSMF ¶ 33; PSAMF ¶ 1; DRPSAMF ¶ 1. Despite the agent's advice, Mr. Suydam remained very concerned and knew he had to find the book as soon as possible. PSAMF ¶ 1; DRPSAMF ¶ 1.

After realizing the book was missing, Mr. Suydam scanned the stacks of books in the storage room, making a visual search for the red A & D Book, but he did not see the book. PSAMF ¶¶ 7–9; DRPSAMF ¶¶ 7–9. Mr. Suydam assumed that book was in the middle of one of the stacks of books or otherwise obstructed from view. PSAMF ¶ 9; DRPSAMF ¶ 9.

Because of his physical limitations and numerous medical conditions, Mr. Suydam believed that he could not conduct an extensive search for the missing A & D Book himself.6 PSAMF ¶ 19; DRPSAMF ¶ 19. Because of his blood pressure condition, he did not want to risk passing out in the storage room. 7 PSAMF ¶ 16; DRPSAMF ¶ 16. Mr. Suydam lived alone and did not...

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