Central Texas Gunworks owner Michael Cargill has filed a federal lawsuit agains the Bureau of Alcohol, Tobacco, Firearms, and Explosives alleging that the government agency is abusing its powers under the Gun Control Act of 1968 to shut down federally licensed firearm retailers for minor clerical and paperwork errors; a practice that Cargill’s attorneys say ignores the actual law.
According to the text of the GCA, the ATF has to find evidence of “willful” misconduct on the part of these FFLs; something that Cargill and his attorneys say is missing from many of the recent revocation notices the ATF has been handing out.
According to the lawsuit, the new policy under President Biden’s team at ATF has turned longtime record-keeping requirements that are supposed to prevent criminals and other dangerous people from buying guns into a weapon against the firearm industry.
“The act allows the federal government to revoke gun dealers’ license to sell firearms — commonly called federal firearms licenses or FFLs — when dealers willfully violate federal or state gun laws,” Mr. Curtis said.
In a statement to The Washington Times, the ATF said it would not comment on specific litigation but defended the agency’s use of the Gun Control Act.
An ATF spokesman maintained that the agency can only revoke a license for “willful violations” of the Gun Control Act.
“The GCA does not define ‘willful,’” the spokesman said, citing a statement from its website. “Federal courts have held that a willful violation of the GCA’s regulations occurs when the FFL commits the violation with an intentional disregard of a known legal duty or with plain indifference to their legal obligations.”
For decades, Cargill says, license revocations were an “exceedingly rare” step reserved only for the “worst actors,” noting, for instance, that in 2013 the ATF recommended license revocations for just 81 of the more than 10,000 shops that were inspected. Starting in the summer of 2021, however, things changed, and Cargill points to Joe Biden’s White House announcement that the GCA would be enforced against “rogue” gun dealers, even those who never willfully intended to make minor paperwork mistakes.
As part of this effort, the Acting Assistant Director of the ATF George Lauder issued a memorandum instructing ATF Special Agents in Charge and Directors of Industry Operations to revoke FFLs for a single violation in many circumstances.
Since then, revocations have increased over 500%, as the ATF has effectively written the word “willful” out of the statute by instituting a policy of revoking FFLs for inadvertent paperwork errors. This new definition of “willful” violates the plain language of the governing statute and puts all law-abiding licensees at risk of revocation for minor and inconsequential paperwork errors that do not pose a threat to public safety, nor result in prohibited possessors obtaining firearms.
Cargill is now seeking a declaration from the federal judiciary that the ATF’s new enforcement policy violates the Gun Control Act, as well as a permanent injunction preventing the DOJ and ATF from “ignoring the Act’s requirement that violations be willful.”
I’m fully in support of Cargill’s efforts here, because until the courts reign in the ATF’s executive branch overreach things are only going to get worse. One big problem though, as the ATF spokesman points out, is that the GCA itself doesn’t define what constitutes a “willful” violation. Is the ATF free to interpret that word as broadly as Joe Biden wants? In his lawsuit, Cargill and his attorneys point out that while the text of the GCA may not provide a definition, the Fifth Circuit (the jurisdiction where the lawsuit has been filed) has done so in the past: the FFL must know of his “legal obligation and purposefully disregarded or was plainly indifferent to the record-keeping requirements.”
In other words, an honest mistake shouldn’t result in a revocation. But according to Cargill, that’s exactly what’s happening to FFLs across the country right now.
The ATF’s own prior enforcement orders reflected this willfulness requirement: “The term willfulness means a purposeful disregard of, a plain indifference to, or reckless disregard of a known legal obligation.”
ATF statistics also reflect this collaborative approach. In 2020, for example, ATF only successfully sought revocation 40 times out of 5,823 inspections. This is, despite the fact that, in 2020, only 56% percent of inspections resulted in “no violation” reports. The rest (2,546) contained some sort of violation.
The far more common response to violations of the Act were a “Report of violations” (1,289 instances), a “Warning letter” (804), or a “Warning conference”.
In 2021, licensees did even better, as the ATF sought revocation in only 27 out 6,639 inspections.
After the Biden Administration announced its comprehensive strategy to overhaul gun laws in June 2021, the ATF issued a memorandum to all Special Agents in Charge and Directors of Industry Operations that alerted them that single violations should now result in revocation proceedings.
The Department of Justice was explicit in announcing it would be changing its enforcement regime: “But for those dealers who willfully break the law and put public safety at risk by violating certain ATF requirements, ATF will seek to revoke their licenses pursuant to its zero-tolerance approach, absent exceptional circumstances.”
This new Enforcement Policy has resulted in a staggering increase in revocation recommendations. Since announcing this new policy, the ATF has initiated at least 273 revocation proceedings, and likely many more.
Cargill points out that during his last ATF inspection in 2018, agents found four different types of violations in 35 out of more than 6,500 transactions, but didn’t recommend a license revocation. Instead, the agency instructed Cargill to “take simple corrective actions.” Cargill is understandably concerned that the same error rate of less than 1% could now lead to the closure of his business and his loss of livelihood even if the mistakes are as simple as abbreviating “county” as “CO” instead of spelling out the word completely.
We’ll be keeping our eyes on this lawsuit, and thankfully with Republicans taking control of the House the GOP will be able to start exercising some oversight when it comes to the abuses of Joe Biden’s ATF and DOJ. That in itself won’t stop the abuse, but it will at least shine a spotlight on what’s going on behind the scenes and could very well provide evidence that will work in Cargill’s favor as the case makes its way up the judicial ladder to the Supreme Court.