By Richard E. Gardiner , Esq.
As an FFL holder, you have specific legal rights that can
help when the ATF comes calling
A time will probably come
When YOU, as a federal firearms licensee, will have interaction with an agent or “investigator” (inspector) of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) during either an investigation of a customer or an inspection of your records and inventory. Because your license is your livelihood, you need to know your legal rights.
First and foremost, you must remember that under the Fifth Amendment to the United States Constitution, you have the right not to “be compelled in any criminal case to be a witness against [your]self.” What this means is that you never, ever have to speak to an ATF agent or inspector.
Remember the famous Miranda warning required by the United States Supreme Court in
Miranda v. Arizona, 384 U.S. 436 (1966): “You have the right to remain silent. Anything you say can and will beused against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.”
Because any violation of the federal firearms laws, no matter how trivial, could potentially be prosecuted as a criminal case, the protection of the Fifth Amendment applies to questions posed by ATF agents or inspectors, even during a routine compliance inspection.
In addition, the Fourth Amendment (the right to be secure against unreasonable searches and seizures of your persons, houses, papers and effects) affords protections to dealers by limiting when ATF agents or inspectors may enter their commercial establishments and inspect or examine their firearms inventory and required records.
The protections afforded by the Fourth Amendment against unreasonable searches and seizures have been implemented by Congress in Section 923(g) of Title 18 of the United States Code. Section 923(g)(1) (B) states that the ATF may only inspect or examine the inventory and records of a licensee (without a search warrant) under three circumstances:
(i) in the course of a reasonable inquiry during the course of a criminal investigation of a person or persons other than the licensee;
(ii) for ensuring compliance with the record-keeping requirements of this chapter:
(I) not more than once during any 12-month period; or (II) at any time with respect to records relating to a firearm involved in a criminal investigation that is traced to the licensee; or
(iii) when such inspection or examination may be required for determining the disposition of one or more particular firearms in the course of a bona fide criminal investigation.
Other than these circumstances, ATF agents must obtain a warrant from a federal judge if they want to search your store.
Based on Section 923(g)(1)(B)(ii)(I), the ATF may conduct an annual compliance inspection of your firearms inventory and required records. But what records may they inspect? They may only inspect the records you are required by regulation to maintain—for example, Forms 4473 (which you must keep for 20 years), the Acquisition & Disposition Record and multiplesale forms. Any records that you create that are not required by regulation are not subject to ATF inspection.
Of course, because of the Fifth Amendment, you have the absolute right not to answer any questions that an inspector may pose to you. All you are required to do is to make your firearms inventory and records available for review.
What if ATF agents or inspectors want to take some (or all) of your records? Again, Congress has, as required by the Fourth Amendment, imposed restrictions on the ATF. Section 923(g)(1)(D) states that the ATF’s authority to inspect your required records “shall not be construed as authorizing the [ATF] to seize any records or other documents other than those records or documents constituting material vidence of a violation of law.” If ATF inspectors do take some (or all) of your records, the law says they have to give you copies within a reasonable time.
Of course, ATF inspectors can always ask your consent to take your records, but you are not required to grant it. It is up to you. You can just say no, and then, if the records they want to take are not “material evidence of a violation of law,” they will have to get a federal judge to issue a warrant.
Let’s say that you have been inspected and have been given a “Report of Violations” setting forth what the inspectors believe are violations of the record-keeping requirements. The inspectors will ask you to sign the report, usually telling you that you are not agreeing that the stated violations occurred or admitting any wrongdoing, but simply acknowledging receipt of the report. You are not required, however, to sign the report; in fact, because of the Fifth Amendment, you have the absolute right not to sign. If you do sign, and a proceeding to revoke your license ever takes place, the fact that you signed will be used against you (remember the Miranda warning). Your signature will be used to show that you knew that you had violated the law previously and therefore acted willfully when you violated it again.
If a “Report of Violations” is issued, you will likely hear from the ATF that a warning conference is going to be held at one of the ATF’s offices. If you receive notice of a warning conference, remember that, in addition to your Fifth Amendment right to remain silent, you have a Sixth Amendment right to have an attorney present with you. Never go to a warning conference without a knowledgeable attorney. At the warning conference, you should remain silent, listen to what the ATF has to say and let your attorney do the talking.
So, what happens if you have a warning conference, but, in the next annual compliance inspection, the inspectors find what they believe are additional violations? This time, after being given a “Report of Violations,” you will likely receive, in the mail, a “Notice of Revocation” of your license. You will have 15 days to request a hearing. If the ATF does not receive a written request for an administrative hearing from you within 15 days, the revocation is final and can never be contested, no matter how meritorious your defense might be. The written request for a hearing, however, need only be very simple: “I request a hearing to contest the revocation of my license.”
Once the ATF receives your request, you will be notified, in writing, of a hearing date, time and place (which must be at a location convenient to you). You have a right to be represented by a lawyer at the hearing. Your license is your livelihood, so hire a lawyer knowledgeable in federal firearms laws. Do not ever go to a revocation hearing without representation. At the hearing, you (through your lawyer) have a right to cross-examine the ATF’s witnesses and to present both testimony (yours and anyone else’s) and documentary evidence to show that you did not “willfully” violate the regulations. Once the hearing has concluded, the ATF hearing officer will prepare a report to the regional director of industry operations, who will make the final decision whether to revoke your license. You will be notified of the decision in writing.
If the ATF’s final decision is to revoke your license, you have the right, at any time within 60 days after you receive the final decision, to file a petition with the United States district court for the district in which you reside or have your principal place of business for a “de novo” judicial review of the revocation. Because this is a court proceeding, you have the right to represent yourself if the license is in your name, but you really should not. If your license is in the name of a corporation, the corporation must be represented in court by a lawyer.
Although you may choose not to exercise your rights, it is generally in your best interest to do so. It is also generally in your best interest to maintain a positive relationship with the ATF office in your area. Being amicable (without giving up your rights) can sometimes go a long way in preventing what might be a bad situation from getting worse.
If you are a Federal Firearms Licensee and are having issues with BATFE, please call our Legislative Counsel's office at 703-267-1160.
Find the Right Attorney
Having a qualified attorney can be critical in exercising your rights in any aspect of the compliance inspection, warning conference, administrative hearing or judicial review process. Author Richard E. Gardiner is a distinguished attorney in this field and has represented numerous dealers in litigation with the ATF in both civil and criminal matters. He may be reached at 703-352-7276 or [email protected].
To receive a list of attorneys who may be particularly strong in this facet of the law, contact Randy Clark at the National Shooting Sports Foundation at 203-426-1320 or [email protected].
NOTE: This article first appeared in the August 2008 issue of SHOT Business and is reprinted here with the permission of Bonnier Publishing and the National Shooting Sports Foundation (NSSF).