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

CourtUnited States District Courts. 5th Circuit. Southern District of Mississippi
Writing for the CourtLOUIS GUIROLA
Citation856 F.Supp.2d 854
Docket NumberCause No. 1:10cv574 LG–RHW.
Decision Date12 March 2012
PartiesRalph Paul WEAVER, d/b/a Guns & Ammo, Plaintiff v. Jillair HARRIS, Director of Industry Operations, Bureau of Alcohol, Tobacco, Firearms and Explosives, Defendant.

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.


[856 F.Supp.2d 855]


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. Operating

[856 F.Supp.2d 856]

as 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.

[856 F.Supp.2d 857]

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...

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3 practice notes
  • Fairmont Cash Mgmt., LLC v. James, CIVIL ACTION NO. 3:15-CV-077
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • 23 septembre 2016
    ...court may attach such weight, if any, as it deems appropriate to the ATF's determinations and decision." Weaver v. Harris , 856 F.Supp.2d 854, 857 (S.D. Miss. 2012), aff'd , 486 Fed.Appx. 503 (5th Cir. 2012) (internal citations omitted); see also Wells v. James , 4:14–CV–1239, 2015 WL ......
  • Thomas v. Bureau of Alcohol, CIVIL ACTION NO. 16-1539 SECTION "N" (2)
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • 16 juin 2017
    ...and decision." Fairmont Cash MGMT., LLC v. James, 208 F.Supp.3d 830, 835 (S.D.Tex. Sept. 23, 2016) (quoting Weaver v. Harris, 856 F.Supp.2d 854, 857 (S.D. Miss. 2012), aff'd, 486 Fed.Appx. 503 (5th Cir. 2012)). Furthermore, an evidentiary hearing is not required, and the court may ente......
  • Wells v. James, CIVIL ACTION NO. 4:14-CV-1239
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • 2 septembre 2015
    ...pursuant to 18 U.S.C. § 923(f)(3). The ATF'sPage 4determination is not entitled to any presumption of correctness. Weaver v. Harris, 856 F. Supp. 2d 854, 857 (S.D. Miss. 2012), aff'd, 486 F. App'x 503 (5th Cir. 2012). C. Revocation of a Federal Firearms License The Gun Control Act allows fo......
3 cases
  • Fairmont Cash Mgmt., LLC v. James, CIVIL ACTION NO. 3:15-CV-077
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • 23 septembre 2016
    ...court may attach such weight, if any, as it deems appropriate to the ATF's determinations and decision." Weaver v. Harris , 856 F.Supp.2d 854, 857 (S.D. Miss. 2012), aff'd , 486 Fed.Appx. 503 (5th Cir. 2012) (internal citations omitted); see also Wells v. James , 4:14–CV–1239, 2015 WL ......
  • Thomas v. Bureau of Alcohol, CIVIL ACTION NO. 16-1539 SECTION "N" (2)
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • 16 juin 2017
    ...and decision." Fairmont Cash MGMT., LLC v. James, 208 F.Supp.3d 830, 835 (S.D.Tex. Sept. 23, 2016) (quoting Weaver v. Harris, 856 F.Supp.2d 854, 857 (S.D. Miss. 2012), aff'd, 486 Fed.Appx. 503 (5th Cir. 2012)). Furthermore, an evidentiary hearing is not required, and the court may ente......
  • Wells v. James, CIVIL ACTION NO. 4:14-CV-1239
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • 2 septembre 2015
    ...pursuant to 18 U.S.C. § 923(f)(3). The ATF'sPage 4determination is not entitled to any presumption of correctness. Weaver v. Harris, 856 F. Supp. 2d 854, 857 (S.D. Miss. 2012), aff'd, 486 F. App'x 503 (5th Cir. 2012). C. Revocation of a Federal Firearms License The Gun Control Act allows fo......

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