"ATF indicted me, claiming that I had not purchased the firearm as a
gift, but that I had actually bought it for my friend using her money. I
lost over $216,000 in saving and earnings. I had to refinance my home to
help pay the bills and the attorney's fees. Three months after my
arrest, my case went to trial. At the end of the trial, the jury
deliberated less than one hour before finding me innocent of the
charges. On my first day back to work I was given a 40-hour suspension
without pay for 'criminal activity' because I had been indicted. My
professional career is shot."
Lt. Michael Lara
Tucson Police Department
March 29, 2006
Congress Told of More ATF Abuses, Reforms Suggested
<http://www.cnsnews.com/ViewNation.asp?Page=/Nation/archive/200603/NAT20060329a.html>
"The ATF tends to focus or has a significant focus on trivial,
immaterial violations which are unrelated to public safety. And they
impose unreasonable standards of perfection which are simply not humanly
achievable."
Richard Gardiner
Virginia attorney and an expert in federal firearms laws who often
represents FFLs and gun owners under ATF scrutiny
March 29, 2006
Congress Told of More ATF Abuses, Reforms Suggested
<http://www.cnsnews.com/ViewNation.asp?Page=/Nation/archive/200603/NAT20060329a.html>
"Under the Gun Control Act, license revocation may be undertaken for any
willful violation of the law or regulations. The term 'willful' is not
defined in the law."
Audrey Stucko
Deputy assistant director for ATF's enforcement programs and services
March 29, 2006
Congress Told of More ATF Abuses, Reforms Suggested
<http://www.cnsnews.com/ViewNation.asp?Page=/Nation/archive/200603/NAT20060329a.html>
"This is clearly not what Congress had in mind when it enacted the
'willful' standard in 1986. A Senate Judiciary Committee report stated
that the purpose for adding 'willfully' to the license revocation
procedure is, and I quote, 'to insure that licenses are not revoked for
inadvertent errors or technical mistakes.' But that is precisely what
ATF is doing."
Richard Gardiner
Virginia attorney and an expert in federal firearms laws who often
represents FFLs and gun owners under ATF scrutiny
March 29, 2006
Congress Told of More ATF Abuses, Reforms Suggested
<http://www.cnsnews.com/ViewNation.asp?Page=/Nation/archive/200603/NAT20060329a.html>
FULL TEXT:
Congress Told of More ATF Abuses, Reforms Suggested
By Jeff Johnson
CNSNews.com Senior Staff Writer
March 29, 2006
<http://www.cnsnews.com/ViewNation.asp?Page=/Nation/archive/200603/NAT20060329a.html>
(CNSNews.com) - An Arizona police supervisor Tuesday said the federal
agency charged with regulating the nation's firearms industry
"absolutely devastated" his career and his personal life, all because he
gave a gun to a friend as a gift.
Tucson Police Lt. Michael Lara was among a panel of witnesses who told
the House Judiciary Subcommittee on Crime, Terrorism and Homeland
Security that the Bureau of Alcohol, Tobacco, Firearms and Explosives
(ATF) is in need of serious reform.
Lara purchased a handgun from a federally licensed firearms dealer (FFL)
in 2003, planning to give it to a friend who was licensed by the Arizona
State Police to carry a concealed weapon. One of the forms he completed
as part of the purchase asked if he was the "actual buyer" of the
firearm. The 28-year law enforcement veteran read the definition of
"actual buyer" on the form and answered the question "yes."
During a review of the gun dealer's records, ATF noticed Lara's purchase
and began investigating it. Lara was placed on administrative leave with
pay, but even after an internal affairs investigation cleared him of any
wrongdoing, ATF continued to pursue the case for seven additional months.
"ATF indicted me, claiming that I had not purchased the firearm as a
gift, but that I had actually bought it for my friend using her money,"
Lara recalled.
The crime Lara was accused of is typically referred to as a "straw
purchase," when one person buys a firearm on behalf of another person
who is, usually, legally disqualified from gun ownership.
Lara said he initially believed that ATF would investigate the charges
objectively, determine that he was innocent and move on to other cases.
He now complains that ATF never interviewed any of the witnesses to the
purchase of the firearm or his presentation of it to his friend as a
gift. Lara said he is still baffled by the agency's actions.
"It just makes no sense to me why ATF would try to prosecute someone who
had dedicated themselves to serving our community and who clearly did
nothing wrong," Lara concluded. "It was obvious that there was no intent
of wrongdoing."
After he was processed as a federal prisoner, Lara was released on his
own recognizance, but now was unemployed and the recipient of intense
media scrutiny, awaiting his day in court.
"I lost over $216,000 in saving and earnings. I had to refinance my home
to help pay the bills and the attorney's fees," Lara recalled. "Three
months after my arrest, my case went to trial. At the end of the trial,
the jury deliberated less than one hour before finding me innocent of
the charges."
Lara would wait two more months for his badge to be returned to him. But
the ATF prosecution did not end when he resumed his police career.
"On my first day back to work I was given a 40-hour suspension without
pay for 'criminal activity' because I had been indicted," Lara
continued. "My professional career is shot. It's now been three years
after the event and I am still a patrol lieutenant. It was made clear to
me when I returned to work that I would never see any advancement."
The ATF representative present at the hearing did not address Lara's
case, but Kristen Rand, legislative director for the anti-gun Violence
Policy Center, did.
"Mr. [sic] Lara's situation sounds extremely unpleasant," Rand said,
"but we should be careful not to just legislate based on one anecdote."
Pro-gun attorney says ATF over-reaching extends to dealers, too
Richard Gardiner, a Virginia attorney and an expert in federal firearms
laws who often represents FFLs and gun owners under ATF scrutiny, argued
that Lara's case is actually closer to being the rule than the exception.
"The ATF tends to focus or has a significant focus on trivial,
immaterial violations which are unrelated to public safety," Gardiner
said. "And they impose unreasonable standards of perfection which are
simply not humanly achievable."
As an example, Gardiner recalled an ATF review of 880 "Firearms
Transaction Record Part I - Over-The-Counter" forms collected by one of
his gun dealer clients. Of the 34,320 blocks of information collected on
those documents, ATF found 19 clerical errors.
"That is a 99.96 percent perfect completion record," Gardiner noted.
"Yet ATF took the position that, because the dealer was aware -- based
on the fact that he had completed 99.96 percent of the forms accurately
-- that he committed a 'willful violation' with regard to the other four
one-hundredths of a percent because he knew what his legal obligations
were."
The bureau revoked that gun dealer's license and closed his business.
"Essentially, what the ATF position is, is that human beings can make no
mistakes," Gardiner complained. "Indeed, in the oral argument in that
case one of the judges asked the U.S. attorney what the ATF's position
was and he said, 'zero tolerance.'"
Audrey Stucko, deputy assistant director for ATF's enforcement programs
and services, defended the agency's actions.
"Under the Gun Control Act, license revocation may be undertaken for any
willful violation of the law or regulations," Stucko said. "The term
'willful' is not defined in the law."
Federal courts have often sided with ATF's interpretation that the term
"willful" means only that the gun dealer had prior knowledge of a
requirement and, subsequent to gaining that knowledge, violated it, with
or without intent. Gardiner told of cases where ATF identified customer
responses of "Y" or "N" rather than "yes" or "no" in written responses
to questions as "willful violations" on the part of gun dealers under
investigation. Other dealers lost their licenses, Gardiner said, because
customers had accurately listed their street address, city, state and
zip code, but failed to include their county of residence.
"This is clearly not what Congress had in mind when it enacted the
'willful' standard in 1986," Gardiner argued. "A Senate Judiciary
Committee report stated that the purpose for adding 'willfully' to the
license revocation procedure is, and I quote, 'to insure that licenses
are not revoked for inadvertent errors or technical mistakes.' But that
is precisely what ATF is doing."
Subcommittee Chairman Howard Coble (R-N.C.) expressed concern about how
ATF was spending some of the taxpayer dollars used to fund its work.
"ATF should not waste valuable resources worrying about ministerial
errors committed by licensees," Coble said. "Rather, they should focus,
it seems to me, on those licensees who willfully violate the laws and
regulations and pose a threat of significant harm."
Coble also addressed ATF's pursuit of law-abiding gun buyers like Lt.
Michael Lara.
"Prosecutions that are aimed at only padding case statistics - and I'm
not suggesting that that's done, but if it is done - not only waste
government resources but can also tarnish a law-abiding citizen's
reputation as well, and cause individuals severe financial distress,"
Coble said.
His subcommittee is considering legislation that would give ATF other
options besides revoking a gun dealer's license for lesser violations
and unintentional errors. The proposal also includes a statutory
definition of "willful violations" that would force ATF to prove that a
gun dealer knowingly and intentionally defied a law or regulation before
sanctions could be imposed.
See Previous Related Article:
February 17, 2006 - Congress Told of ATF Seizures, Threats to Gun Buyers
http://www.cnsnews.com/SpecialReports/a ... 0217a.html
###
