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Bruce R. Barany v. Janet C. Van Haelst

December 6, 2010

BRUCE R. BARANY,
PLAINTIFF,
v.
JANET C. VAN HAELST, ACTING DIRECTOR OF INDUSTRY OPERATIONS, SEATTLE DIVISION, BUREAU OF ALCOHOL, TOBACCO, FIREARMS & EXPLOSIVES, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Rosanna Malouf Peterson United States District Court Judge

ORDER ADDRESSING MOTIONS FOR SUMMARY JUDGMENT

This matter comes before the court on cross-motions for summary judgment by Plaintiff Bruce Barany and Defendant the United States of America on behalf of its agency the Department of Justice, Bureau of Alcohol, Tobacco, Firearms & Explosives, and its employees (hereinafter the "United States" or "ATF") (Ct. Recs. 16 and 29). Mr. Barany‟s complaint seeks judicial review of the ATF‟s denial of his application for a license to deal in firearms (Ct. Rec. 1). In Ct. Rec. 16, Mr. Barany seeks summary judgment in his favor and an order requiring the United States to withdraw its denial of his application and issue him a federal firearms dealer‟s license. The United States seeks summary judgment in its favor and an order dismissing Mr. Barany‟s complaint (Ct. Rec. 29).

BACKGROUND

The following facts are undisputed and are based on documents in the certified administrative record (cited as "AR"), which was filed on February 11, 2010, and contains all of the evidence referenced by either party in this matter. See (Ct. Rec. 15) (Certificate of Service for filing of administrative record under seal); (Ct. Rec. 43) (Docket entry for administrative record).

Bruce Barany is president and one of two corporate officers of The General Store, Inc. ("The General Store"), a retail business in Spokane, Washington, that sells sporting goods, along with a wide variety of general merchandise.

License Revocation

At some point prior to 2004, The General Store secured a federal firearms dealers license to sell firearms and ammunition. The General Store‟s license was revoked in administrative proceedings beginning in 2004 because it was found to have violated two provisions of the Gun Control Act of 1968, codified at 18 U.S.C. §§ 921-930 ("Gun Control Act").*fn1

First, federal firearms licensees must adhere to specific record keeping requirements under the Gun Control Act, including maintaining "such records of importation, production, shipment, receipt, sale, or other disposition of firearms at his place of business for such period, and in such form, as the Attorney General may by regulations prescribe." 28 U.S.C. § 923(g)(1). The regulations, in turn, require licensed firearms dealers to "enter into a record each receipt and disposition of firearms." 27 C.F.R. § 478.125(c). The regulations prescribe a particular form for recording the receipt and disposition of firearms called a "Firearms Acquisition and Disposition Record" that has ten different fields of information to be completed. 27 C.F.R. § 478.125(c).

Second, licensed firearms dealers may not transact business in a way that violates state law. 18 U.S.C. § 922(b)(2). The Attorney General "may, after notice and opportunity for hearing, revoke any license issued under this section if the holder of such license has willfully violated any provision of this chapter or any rule or regulation prescribed by the Attorney General under this chapter . . ." 28 U.S.C. § 923(e).

ATF inspectors found violations of one or both of the provisions detailed above after inspections of The General Store in 2000, 2001, and 2003. Following the January 2003 inspection, as detailed in the Ninth Circuit‟s opinion:

Richard Van Loan ("Van Loan"), Director of Industry Operations for the Seattle Field Division of the ATF, issued a Notice of Revocation of The General Store's federal firearms license on August 6, 2004. The General Store received an administrative hearing in early 2005. Van Loan issued the Final Notice of Revocation of Firearms License, with his findings and conclusions, on February 16, 2006. Van Loan based the final revocation on the following five violations:

(1) Willful violation of 27 C.F.R. § 478.125 for failure to adequately maintain an Acquisition and Disposition Record for firearms acquired for repair.

(2) Willful violation of 18 U.S.C. § 923(g)(1) and 27 C.F.R. § 478.125 for failure to fully record the "source" of acquired firearms.

(3) Willful violation of 18 U.S.C. § 923(g)(1) and 27 C.F.R. § 478.125 for failure to log eighty missing or stolen firearms in its Acquisition and Disposition Record.

(4) Willful violation of 18 U.S.C. § 923(g)(1) and 27 C.F.R. § 478.125 for failure to log seventeen firearms that were lost or stolen, then ultimately recovered and resold.

(5) Willful violation of 18 U.S.C. § 922(b)(2) for failure to comply with state law, specifically Revised Code of Washington § 9.41.090, which requires the dealer to send a copy of all handgun applications to the chief of police or sheriff of the purchaser's place of residence.

The General Store filed a timely petition for "de novo judicial review" in district court as provided by 18 U.S.C. § 923(f)(3). The General Store requested that Van Loan stay the revocation pending judicial review pursuant to 18 U.S.C. § 923(f)(2) and 27 C.F.R. § 478.78; Van Loan denied the request. On cross-motions for summary judgment, the district court upheld the first and fifth violations, and the revocation of The General Store's license.

General Store, 560 F.3d at 922-23. Inspections During the Litigation Period While The General Store‟s challenge to the revocation was pending in district court, The General Store was allowed to continue selling firearms from its inventory. (AR 410) (citing The General Store, Inc. v. Van Loan, 2006 WL 1455645 (E.D. WA, May 19, 2006) (order granting preliminary injunction in part)). However, the Court explicitly required The General Store "to comply with all applicable laws, ordinances, and regulations" while the litigation was pending. Id. Pursuant to the court order, the ATF conducted additional inspections of The General Store‟s firearms department during that time (AR 410-11). ATF uncovered four separate types of alleged violations of the Gun Control Act and related regulations during those inspections.

First, in a June 4, 2006, inspection, an inspector found that The General Store had transferred two rifles and one shotgun to a California resident (AR 411).

The ATF determined that this sale constituted a violation of 18 U.S.C. § 922(b)(3)*fn2 because California law requires a 10-day waiting period and does not provide for a sale of firearms to California residents in other states (AR 411).

Second, in a July 19, 2006, inspection, the agency found two open dispositions in the Acquisitions and Dispositions record for which there were not corresponding firearms in the store‟s physical inventory (AR 411). As the administrative hearing officer found:

The firearms included a Winchester, model 1300, 12 gauge shotgun, and a Taurus, model 24/7, .45 caliber pistol. See [Gov. Ex. 27]. On July 20, 2006, ATF received a fax from store employee, Nick Fjellstrom, which included an ATF form 4473 showing that the Taurus .45 caliber pistol had been sold on February 17, 2006. (Gov. Exs. 27, 29). As to the Winchester 12 gauge shotgun, an employee of The General Store informed ATF that the firearm was transferred, but that a different firearm had mistakenly been logged out of the [Acquisitions and Dispositions] record. (Gov. Exs. 27, 28). The General Store subsequently provided ATF with a copy of the ATF Form 4473 showing the transfer of the shotgun.

(AR 411) (Finding 8b of the hearing examiner‟s findings and conclusions).

Third, the July 19, inspection also revealed an over-the-counter transaction carried out by Mr. Barany himself in which The General Store transferred a firearm to a purchaser who indicated on ATF Form 4473 that he was a Washington State resident but listed only a Hawaii residence address on the form and provided a Hawaii driver‟s license as identification (AR 118-19). ATF found this action to violate 18 U.S.C. 923(g)(1)(A), 27 CFR 478.125, and 27 CFR 478.124(c)(1) because although the purchaser claims that he told Mr. Barany that he is a part-time resident of Washington, Mr. Barany did not advise him to disclose a Washington residence on ATF Form 4473 (AR 119).

Fourth, when ATF investigators arrived at The General Store to conduct an inspection on November 21, 2006, and asked to see the Acquisitions and Dispositions records, employee Mr. Fjellstrom informed them that the book of records was locked in a cabinet to which he did not have a key (AR 131). ATF found that these circumstances constituted a failure to make records available for examination, as required of licensees by 18 U.S.C. § 923(g) and 27 CFR § 478.121(b) (AR 412).

License Denial

According to the Administrative Record filed with the Court, after the revocation of The General Storeā€Ÿs federal firearms dealers license, Mr. Barany submitted an application to the ATF for a new license on approximately June 10 or 12, 2008 (AR 135, 414). Mr. Barany listed his own name as the "Name of Owner or Corporation" and listed "General Store" as the "Trade or Business Name, if any" on the application form (AR 132). Mr. Barany provided the address of The General Store in the section of the form requesting "Business Address" (AR 132). The application form also asked whether the "Applicant or any Person [previously identified as an Individual Owner, Partner, and Other Responsible Person[] in the Business]" had previously "Held a Federal Firearms License," "Been an Officer in a Corporation Holding a Federal Firearms License," "Been an Employee of a Federal Firearms Licensee," or "Had a Federal Firearms License Revoked" (AR 134). Mr. Barany ...


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