The fact that the BATFE investigates the original buyer of a gun used in a crime should be expected and doesn't concern me. However, some of the tactics used and questions asked of the original owner of the gun strike me as being questionable.
I realize that there isn't enough info available in the agents' contact with this gun collector to fully understand or judge the C&D order, but, taken in totality with the other recent actions they've taken, I can't help thinking that the BATFE believes that the political winds are shifting and they are gearing up for further aggressive enforcement actions.
Link to original video: https://www.youtube.com/watch?v=sC6vRjo82II
Link to original video: https://www.youtube.com/watch?v=9mGsDvRx3kI
How would ATF be able to have a list of firearms you bought? I thought they are not allowed to use the Form 4473 in a searchable database to, in effect, create a registry of gun owners. Am I wrong about this? I would have asked the ATF agents how they obtained any information about any other guns you owned.
|Fighting the good fight|
For those that don't want to spend 30 minutes watching rambling videos, here's a TL;DW synopsis...
Dude lives in Florida, and sold a gun at a FL gun show in a private face-to-face sale to another FL resident. (Legal in FL.) Gun ends up in hands of a felon. ATF traces gun back to him, and comes by for a visit. ATF asks questions about him selling guns. ATF has a list of some of the gun models and serial numbers for a number of inexpensive handguns that he has bought over the years.
Dude states that he buys and fixes up a lot of cheap pistols like .22/.25/.32/etc. Iver Johnsons/Lorcins/Rohms as well as a number of Tec-9s (Rogue's commentary: aka "Gangbanger Special"/"Saturday Night Special"-types), and that he has sold a decent number of them over the years in private sales to fund further purchases or to pare down his collection.
ATF then serves him with a warning letter, which he refers to as a Cease and Desist letter, warning him that it appears he is "engaged in the business" of repeatedly buying multiple guns with the intent of turning around and selling them for a profit, which they assert is not legal because he is not licensed as a FFL dealer, and directing him to refrain from further unlicensed private face-to-face sales.
Dude refuses service, and posts these two videos about it.
|Fighting the good fight|
He said they only has a partial list. And as he states in the video, they most likely pulled this partial list from the data provided by the FFL(s) he uses to the ATF on the various Form 3310.4 "Report of Multiple Sale or Other Disposition of Pistols and Revolvers".
Sounds like he had purchased or transferred in multiple cheap handguns at one time on more than once occasion. And FFLs are required to report sales of 2+ handguns at one time (or within a short period) to the ATF using this form:
"The disposition of two or more pistols or revolvers to any nonlicensee during a period of 5 consecutive business days must be reported on ATF Form 3310.4, Report of Multiple Sale or Other Disposition of Pistols and Revolvers, not later than the close of the business day on the day of disposition of the second pistol or revolver. The licensee must forward a copy of the Form 3310.4 to the ATF office specified thereon, and another copy must be forwarded to the State police or local law enforcement agency where the sale occurred."
Yeah, he definitely started to stray away from pertinent details and repeat himself, and he would have done viewers a favor by cutting down the length of the videos and just staying on his premise. I was in a bit of a hurry when I posted the videos but I should have thought to give a synopsis, so thanks for that!
I think what concerns me most about this particular incident is that he may have sold or traded various guns that he bought but, at least to my knowledge, there is no statute or BATFE rule that spells out how many guns a seller can sell within a specified period before they have crossed the line into the business of selling guns. They served him with a warning based on nothing more than their ambiguous interpretation of statute and rules.
IF he was truly guilty of violating law he would have either been arrested or charged.
I'm also questioning why, after first leaving their business card at his home requesting he call them, and then (after several call attempts by him) when he does talk to them they ask him to meet them at the Sheriffs dept. When he refuses they agree to come to his home. Why ask him to meet them at the Sheriffs dept., after first showing up at his home? Seems like they were trying to use the Sheriffs dept. interview environment to intimidate him.
I understand that the agents were keyed in on the fact that he bought/ sold/ traded inexpensive guns that are sometimes favored by criminals, but I'm still bothered by the line of questions in which they ask him what his criteria is for disposing of a gun.
...but, mostly I'm bothered by the fact that the BATFE agents felt that, after he cooperated with them and invited them into his home, they decided to arbitrarily issue a warning based on ambiguous statute, that prohibits his ability to engage in legally recognized private sales, although they still allow him to buy and sell through an FFL.
Again, I'm not opposed to BATFE agents performing duties like tracing guns used in crimes to the original buyer...makes sense. But they seemed to expand this investigation into a "fishing trip".
It smacks of the feds attempting to intimidate him while asserting preeminence over a legally recognized state sales transaction.
|Fighting the good fight|
I agree that it would likely be a lot more straightforward if there was a statute that the ATF could point to that says "If you sell more than X guns over Y time frame, you're dealing". (On the flip side, something like that would make it harder for someone such as a surviving family member who's trying to clear out their firearm collector dad's estate after he passed.)
As it is, it's coming down to a judgement call based on the totality of the circumstances in each individual case, which is left to the interpretation of each agent (or their supervisor, or that field office's policy, or whatever). And I agree that can be troubling, since it can result in enforcement not being applied consistently and fairly across the board, especially with the way the ATF appears to follow the winds of the political climate and makes abrupt course changes on a frequent basis.
However, we don't know all the evidence that these ATF agents used to make their determination that they believed he was engaged in the business of dealing firearms without a license. We don't know just how many guns he bought/sold in what time frame, how long of a period over which he's been doing it, how quickly after purchase he's flipping them, what incriminating statements he may have made during the interview, etc., etc. All of those factors (and more) put together might have resulted in a pretty black and white case.
For example, as an exaggeration, if they had evidence that he bought 100 cheap guns and sold them in face-to-face sales over the following few days, plus then bragged about the profit he made off it and how he does the same thing at guns shows every weekend as a good source of income, that would be a fairly easy judgement call to make that he's acting as an unlicensed dealer.
The evidence in this case is almost certainly less compelling and less egregious than that in this case, but my point is that we don't know all of it, and it doesn't necessarily require a black and white "x guns in y time" statute in order to make a determination using the available evidence.
All we have here is part of one side of the story.
I assume ATF agents have discretion, like other LEOs. Just because there's enough evidence to arrest or charge someone doesn't always mean you have to.
The goal of law enforcement isn't to arrest as many people as possible, or write as many tickets as possible, or whatever. The goal is to modify individual and group behavior in order to get it to conform to the law, while preserving public safety. Sometimes public safety requires an arrest. Sometimes the best way to ensure that the undesired behavior changes is by making that arrest or writing that ticket and having the court impose consequences. But other times, the behavior modification can be achieved with just a warning or a talking-to, without endangering public safety.
So perhaps there was enough to arrest/charge him, but the ATF agent or federal prosecutor felt that since he is a law-abiding citizen with no criminal record, and he had been cooperative thus far, it's something that could be handled with a warning rather than dragging him into court. Just like a guy who is caught speeding by a state trooper and let off with a warning because of his otherwise stellar driving record and politeness during the stop, or some kids were caught with some beer and a little weed and the local cop just made them pour it out and go home after a stern butt-chewing.
|When you fall, I will be there to catch you -With love, the floor|
Just had a similar conversation with a friend who is a local dealer here in NH.
He gets calls and visits from the local ATF branch from time to time. In some cases he was at fault. all they do is let him know what the issue was and let him correct it.
Cases filed are a small fraction of their case load.
|Sigforum K9 handler|
So, let me see if I get this straight.
Each time we have a push at new gun control legislation, we cry “enforce the laws on the book!!!!!”
ATF then does so, without making arrests, and we get all pissy and claim that it is a bigger conspiracy that they are “gearing up” for this or that. Not to mention pissed that they didn’t charge someone?
They really must suck at “gearing up” by enforcing the laws we demand them to enforce, without actually arresting anyone.
Pretty outrageous that da evil ATF dares to use common sense in these matters. How dare them!
I also suspect that if they had arrested the guy we’d be equally as pissed that they arrested the guy “for no reason, couldn’t they have just given him a warning? The poor guy didn’t know.....”
Jones I wager you have ran into a few Bryco and Lorcin collectors in the wild, sharing and demonstrating their finest examples at each other.
|Sigforum K9 handler|
Much like Sasquatch, they exist!
They are few, but they have a powerful union.
This same thing happened to a close friend of mine a few years ago. One of the ARs he built up and sold ended up in a crime scene. Though it had been sold a few more times between my friend's first sale of it and where it ended up. The way ATF got wind of my friend was when they were auditing his local FFL and saw a five stripped lowers going to my friend. They knocked on his door to ask him some questions. He didn't talk, but rather got a local 2A lawyer. When it was all said and done, ATF gave him a warning letter. The law doesn't state a number of guns you can buy and sell before you're "in the business." I suspect ATF wants to keep it nebulous, so they can use this tactic without trying it out in court.
|Sigforum K9 handler|
Soooooooooooo you get that “this tactic” has been in court.....a bunch......right?
People get charged all the time for this very thing. And convicted.
The letter is nothing more than a warning, just like sometimes patrol cops hand out warnings for traffic infractions. It means you’re doing enough to get charged, but maybe not enough to get convicted. Yet.
Agreed. One step further... you're doing enough to get charged, but maybe not convicted... or maybe enough to get convicted, but we don't see how charging will make the world a better place.
|quarter MOA visionary|
Yeah, the problem is buying five at a time.
I understand why he would but ATF-PO-PO might get a red flag on this.
Why I never buy multiples at the same time.
|quarter MOA visionary|
You know the Government is NOT your friend.
Some day our fine officers who we wholeheartedly support will be forced to come after our guns.
AND they will come.
AND they will only being doing their job.
That day WE will also have to make a choice to fight, surrender, evade or not comply.
It is not a day I look forward to.
|Doin' what I can |
with what I got
Would it, though? I mean, if you flip a bunch of guns and use the money to purchase an expensive collectible for your own collection, wouldn't that be buying and selling to maintain your own collection?
Like, say I have way more free time and cash than I actually do, and I spend a whole lot of time surfing estate sales looking for deals on stuff, and then I go to a gun show with all this stuff I got for a steal and sell most of it for below rate, but more than I paid for it. I then take that cash and march over to another table and buy a mint SPAS-12 that I could never have afforded on my own salary, but was able to cover with the proceeds of my horse-trading.
Isn't that the precise reason for the line in the law for "buying and selling to maintain one's own collection?"
I was under the impression that ATF got decidedly pissy with kitchen table FFLs who got their FFL just to maintain their own collection...this seems like a Catch-22. (Otherwise I would already have an FFL...I just move too much to feel like I could ever establish a stable customer base).
ETA: just in case it wasn't clear, NO, I'm NOT doing this right now, though I'd be interested to know where/when ATF gets a case of the chapped buttocks.
Death smiles at us all. Be sure you smile back.
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