Weaver v. Harris, Cause No. 1:10cv574 LG–RHW.

• Decision Date: 12 March 2012
• Docket Number: Cause No. 1:10cv574 LG–RHW.
• Citation: 856 F.Supp.2d 854
• Parties: Ralph Paul WEAVER, d/b/a Guns & Ammo, Plaintiff v. Jillair HARRIS, Director of Industry Operations, Bureau of Alcohol, Tobacco, Firearms and Explosives, Defendant.
• Court: U.S. District Court — Southern District of Mississippi

856 F.Supp.2d 854

Ralph Paul WEAVER, d/b/a Guns & Ammo, Plaintiff

v.Jillair HARRIS, Director of Industry Operations, Bureau of Alcohol, Tobacco, Firearms and Explosives, Defendant.

Cause No. 1:10cv574 LG–RHW.

United States District Court,

S.D. Mississippi,

Southern Division.

March 12, 2012.

Cyril T. Faneca, Haley Necaise Broom, Dukes, Dukes, Keating & Faneca, PA, Gulfport, MS, John Calvin Cunningham, Scott Lloyd Braum, Timothy Rockwell Rudd, Scott Braum & Associates, Ltd., Dayton, OH, for Plaintiff.

MEMORANDUM OPINION AND ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT AND DISMISSING CASE

LOUIS GUIROLA, JR., Chief Judge.

BEFORE THE COURT are cross-motions for summary judgment filed by Plaintiff Ralph Paul Weaver [41] and Defendant the Director of Industry Operations for the United States Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) [18]. After due consideration of the submissions, the record in this case, and the relevant law, it is the Court's opinion that summary judgment should be entered in favor of the Defendant. Accordingly, Plaintiff's Motion will be denied, and Defendant's Motion will be granted. Additionally, Plaintiff's motion to strike portions of Defendant's memorandum [53, 55] will be denied.

Facts and Procedural History

Plaintiff Ralph Weaver has operated a retail gun shop for approximately forty years. He has been licensed to sell firearms by the Bureau of Alcohol, Tobacco, Firearms and Explosives since sometime in the 1960's. He began selling out of his home, and moved into a retail location after an ATF inspection in 1993. Operatingas Guns and Ammo, Weaver now sells approximately 1500 guns a year, which the ATF considers a high-volume business.

ATF inspected Weaver's operations in 1998 and cited him for, among other things, record keeping errors which were violations of the Gun Control Act. There was no further action taken on the violations. He was inspected again in 2009. The ATF agent reviewed a year's worth of records and noted certain violations, such as missing guns and/or transaction records, and guns sold to unauthorized persons. A warning conference was held on January 11, 2010, which the ATF memorialized in a letter to Weaver. The letter stated: “You are reminded that future violations, repeat or otherwise, could be viewed as willful and may result in the revocation of your license. You may anticipate further inspections to ensure your compliance.” (Pl. Mot. Summ. J. Ex. G, ECF No. 50–1). Weaver received an initial Notice of Revocation of License two months later, on March 10, 2010. (Pl. Mot. Summ. J. Ex. H, ECF No. 50–2).

After a hearing to review the initial Notice of Revocation of License, the Hearing Officer concluded that Weaver had violated three provisions of Title 18, Chapter 44. First, he failed to timely record the disposition of 213 firearms in his Acquisitions and Dispositions book (the “A & D book”). Second, he transferred firearms to unlicensed non-Mississippi residents. Finally, he transferred firearms to unlicensed individuals without conducting the required background check. (Def. Mot. Summ. J. Ex. B, Pt. 1 at 18, 19, ECF No. 20–1). ¹ Significantly, these violations were found to be willful. The Hearing Officer recommended to the Director of Industry Operations (DIO) that Weaver's license not be revoked. ( Id. at 21). However, the DIO did not adopt the recommendation of the Hearing Officer. Instead, he found the willful violations of the Gun Control Act justified revocation of Weaver's firearms license. (Def. Mot. Summ. J. Ex. C at 5, ECF No. 18–5).

Weaver seeks judicial review of this decision. The government has filed a summary judgment motion contending there is no question of material fact whether the government revoked Weaver's license only after having made the necessary findings. Weaver filed a cross-motion for summary judgment arguing that the ATF's determination was both unsupported by the evidence and contrary to established case law, as well as contrary to ATF's own revocation policies and guidelines.

The Standard of Review

The Gun Control Act of 1968 requires every person who engages in business as an importer, manufacturer, or dealer in firearms or ammunition to be properly licensed by the Secretary of the Treasury. United States v. Shirling, 572 F.2d 532, 533 (5th Cir.1978); 18 U.S.C. § 923(a). Under the GCA, “[t]he Attorney General may, after notice and opportunity for hearing, revoke any license issued under [18 U.S.C. § 923] if the holder of such license has willfully violated a provision of [the GCA] or any rule or regulation prescribed by the Attorney General under [the GCA]....” 18 U.S.C. § 923(e). Section 923(f)(3) confers jurisdiction on this Court to review the revocation of a license, de novo. “In a proceeding conducted under this subsection, the court may consider any evidence submitted by the parties to the proceeding whether or not such evidence was considered at the hearing.” Id.

The de novo standard of review “means that the ATF's decision is entitled to no presumption of correctness and that the district court may attach such weight, if any, as it deems appropriate to the ATF's determinations and decision.” Willingham Sports, Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 348 F.Supp.2d 1299, 1306 (S.D.Ala.2004). The Attorney General's decision may be upheld if the court concludes, in its own judgment, that the evidence supporting the Attorney General's decision regarding willfulness is substantial. See Stein's, Inc. v. Blumenthal, 649 F.2d 463, 467 (7th Cir.1980).

The Court may grant summary judgment in an appeal from an ATF administrative decision when there are no issues of material fact in dispute. Willingham Sports, Inc., 348 F.Supp.2d at 1307;Armalite, Inc. v. Lambert, 544 F.3d 644, 647 (6th Cir.2008); see also On Target Sporting Goods, Inc. v. Attorney General of the United States, 472 F.3d 572, 575 (8th Cir.2007) (allowing summary judgment for de novo review of ATF's refusal to approve a license under 18 U.S.C. § 923(d)(1)(C)).

The standard of review is limited. Whether the Attorney General's decision was “authorized,” Section 923(f)(3) “does not call upon this Court to decide whether it would revoke the license in its own judgment, but whether all of the evidence presented is sufficient to justify the Attorney General's revocation of the license.” Morgan v. U.S. Dep't of Justice, 473 F.Supp.2d 756, 762 (E.D.Mich.2007) (quoting Pinion Enters., Inc. v. Ashcroft, 371 F.Supp.2d 1311, 1315 (N.D.Ala.2005)); see also Armalite, Inc., 544 F.3d at 650;Article II Gun Shop, Inc. v. Gonzales, 441 F.3d 492, 494 (7th Cir.2006).

A license holder commits a willful violation of the Gun Control Act when, “with knowledge of what the law requires, it intentionally or knowingly violates the GCA's requirements or acts with plain indifference to them (i.e., recklessly violates them).” Armalite, Inc., 544 F.3d at 647. “[A] dealer's repeated violations after it has been informed of the regulations and warned of violations does show purposeful disregard or plain indifference.” Willingham Sports Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 415 F.3d 1274, 1277 (11th Cir.2005); see also Athens Pawn Shop Inc. v. Bennett, 364 Fed.Appx. 58, 60 (5th Cir.2010). There is no requirement that the violations occurred with any bad purpose. On Target Sporting Goods, Inc., 472 F.3d at 575.

Discussion

To establish that the ATF's revocation of Weaver's license was authorized by law for purposes of summary judgment, the ATF must demonstrate that the undisputed facts establish that Weaver was aware of his obligations under the GCA and that he either “purposefully disregarded” or was “plainly indifferent” to those obligations. By the statute's plain language, even a single willful violation can trigger ATF's power of revocation. See Am. Arms Int'l v. Herbert, 563 F.3d 78, 86 (4th Cir.2009); General Store, Inc. v. Van Loan, 560 F.3d 920, 924 (9th Cir.2009); Armalite, Inc., 544 F.3d at 647;Article II Gun Shop, Inc. v. Gonzales, 441 F.3d at 498.

1. Whether Weaver's Violations of the Gun Control Act were “Willful”

Weaver has never disputed that he made the errors alleged by the government. Rather, he contends he did not “willfully” violate the underlying regulations, as required by 18 U.S.C. § 923(e).

The Court analyzes the A & D book violations, as that category comprises the vast majority of Weaver's violations. Weaver is required to log acquisitions and dispositions of firearms in his A & D book in accordance with 18 U.S.C. § 923's licensing provisions. A seven-day delay in making an entry of a sale or other disposition into the A & D book is allowed. 27 C.F.R. § 478.125(e). At the conclusion of the ATF's ten-day inspection, and after seeking Weaver's assistance in reconciling the records, the Agent found that Weaver failed to timely record disposition of 213 firearms. This was not the first time the ATF had discovered this error; Weaver had also been cited for A & D book violations during his inspection in 1998. (Def. Mot. Summ. J. Ex. A Pt. 3, 179:16–22, ECF No. 18–3). At that time, seven firearms were not accounted for. Thus, Weaver's A & D book violations increased dramatically between 1998 and 2009. ( Id. at 179:21).

Weaver argues he has located 75% of the missing firearms, and expects to eventually find “most, if not all” of them. (Pl. Mem. 7, ECF No. 45). However, “after-the-fact efforts to correct the specific violations ‘are irrelevant to the issue of willfulness at the time the errors occurred.’ ” Suydam v. United States Bureau of Alcohol, Tobacco, Firearms & Explosives, 847 F.Supp.2d 146, 158, No. 2:11–cv–00055–JAW, 2012 WL 589519, at *8 (D.Me. Feb. 22, 2012) (quoting Sturdy v. Bentsen, 129 F.3d 122, at *2 (8th Cir.1997) (unpublished table decision)). Further, although Weaver argues that his violations were minor or honest errors and can be cured, “the GCA does not provide a dispensation for ‘minor’ er...