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BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND

EXPLOSIVES (BATFE): REFORMING LICENSING

AND ENFORCEMENT AUTHORITIES

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

MARCH 28, 2006

Serial No. 109–114

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, General Counsel-Chief of Staff 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

HOWARD COBLE, North Carolina, Chairman

DANIEL E. LUNGREN, California 

MARK GREEN, Wisconsin 

TOM FEENEY, Florida 

STEVE CHABOT, Ohio 

RIC KELLER, Florida 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas 

ROBERT C. SCOTT, Virginia 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ANTHONY D. WEINER, New York

MICHAEL VOLKOV, Chief Counsel 

DAVID BRINK, Counsel 

CAROLINE LYNCH, Counsel 

JASON CERVENAK, Full Committee Counsel 

BOBBY VASSAR, Minority Counsel 

(III)

C O N T E N T S 

MARCH 28, 2006

OPENING STATEMENT 

Page 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 1

The Honorable Robert C. Scott, a Representative in Congress from the State 

of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 2

WITNESSES 

Ms. Audrey Stucko, Deputy Assistant Director, Enforcement Programs and 

Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) 

Oral Testimony ..................................................................................................... 4

Prepared Statement ............................................................................................. 7

Mr. Richard E. Gardiner, Attorney at Law, Fairfax, Virginia 

Oral Testimony ..................................................................................................... 15

Prepared Statement ............................................................................................. 17

Lt. Michael James Lara, Tucson Police Department, Tucson, Arizona 

Oral Testimony ..................................................................................................... 20

Prepared Statement ............................................................................................. 22

Ms. M. Kristen Rand, Legislative Director, Violence Policy Center 

Oral Testimony ..................................................................................................... 30

Prepared Statement ............................................................................................. 31

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Robert C. Scott, a Representative in 

Congress from the State of Virginia, and Ranking Member, Subcommittee 

on Crime, Terrorism, and Homeland Security ................................................... 53

Prepared Statement of Bruce R. Barany, Co-Owner, The General Store, Spokane, Washington ................................................................................................. 54

Prepared Statement of James. M. Faircloth, Owner, Jim’s Pawn Shop, Inc., 

Fayetteville, North Carolina ............................................................................... 58

Prepared Statement of Stanton Myerson, Owner, Lou’s of Upper Darby, Inc., 

Upper Darby, Pennsylvania ................................................................................ 61

(1)

BUREAU OF ALCOHOL, TOBACCO, FIREARMS, 

AND EXPLOSIVES (BATFE): REFORMING LICENSING AND ENFORCEMENT AUTHORITIES 

TUESDAY, MARCH 28, 2006

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 2:04 p.m., in Room 

2141, Rayburn House Office Building, the Honorable Howard Coble 

(Chairman of the Subcommittee) presiding. 

Mr. COBLE. Good afternoon, ladies and gentlemen. We are scheduled to have four witnesses on this panel and I see two have been 

seated—and a third—and a fourth. Very well. 

Today, ladies and gentlemen, the Subcommittee on Crime, Terrorism, and Homeland Security will receive testimony from two 

panels of witnesses. The first panel has been called to assist the 

Subcommittee’s oversight on the civil and criminal enforcement efforts of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, 

popularly known as ATF. Specifically, this panel will review ATF 

enforcement authorities and the possibility of civil penalties for 

minor violations; ATF administrative process and procedures for licensing of Federal firearm licensees, FFLs, to ensure that licensees 

are provided adequate and expeditious due process; and ATF allocation of enforcement resources. 

This review will help Members of this Subcommittee to determine if legislation is in fact needed to assist the ATF in accomplishing its mission and to ensure adequate and timely due process 

for FFLs. The ATF must be able to regulate FFLs in a fair and expeditious manner. Unfortunately, the ATF authorities limit potential penalties to only revocation or no penalty at all, which leaves 

little or no middle ground for fair resolution. 

This could also drain the ATF’s limited enforcement resources, 

which may be better utilized by focusing on FFLs posing the greatest threat of harm to the public. ATF should not waste valuable resources worrying about ministerial errors committed by licensees; 

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. 

Similarly, when it comes to criminal prosecutions of individuals, 

ATF and the Department of Justice should focus on those truly bad 

2

actors. Prosecutions that are aimed at only padding case statistics—and I am not suggesting that that is done. But if it is done, 

it not only wastes Government resources, but could tarnish lawabiding citizens’ reputation as well and cause individuals severe financial distress. 

We look forward to our witnesses’ testimony today and hope that 

it can shed some light on how Congress can do its part to ensure, 

one, that individual civil liberties are respected, and two, that the 

ATF has effective tools at its disposal to fulfill its mission of investigating violations of our Nation’s gun laws. 

I am pleased to welcome our panelists and I am now equally 

pleased to recognize the distinguished gentleman from Virginia, the 

Ranking Member, Mr. Bobby Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. I am pleased to join you 

in convening this hearing on ATF licensing enforcement authority. 

We have held two previous hearings on ATF gun law enforcement 

activities; this hearing focuses primarily on ATF gun licensing, 

issuing, and regulations, procedures, and practices. 

I believe there are several areas in the current licensing regulations that we can all agree need some change. Adding fine and suspension authority to the current revocation-only authority for licensing violations is one such area that I think there will be general agreement. 

I believe that in according due process, the appearance of impartiality is an important component. While there is nothing to establish that ATF-appointed employees cannot serve as fair and impartial hearing officers, I believe that the appearance of impartiality 

is served by having those officers from a different agency or appointed source. 

I am open to the suggestion that ATF could benefit from a study 

of its operations and resource allocations and from general operational guidelines relative to enforcement activities, as with other 

agencies under the Department of Justice. 

Whatever we may do legislatively, Mr. Chairman, I believe that 

our goal should be to improve the operational effectiveness as well 

as the fairness of the ATF’s gun law enforcement and licensing responsibilities. That Agency has an important function and responsibility with respect to the enforcement of our Federal gun laws, 

and while we all want to ensure that these functions and responsibilities are applied in a manner that promotes and supports the 

respective citizens they affect, we don’t want to do it at the expense 

of diligent and effective law enforcement. 

So, Mr. Chairman, I know our staffs are working on legislation 

that will reform some of ATF’s current enforcement procedures and 

options. It is my hope that we will come up with legislation that 

reflects improvements on what we can agree on a bipartisan basis 

and also those that both gun control as well as gun rights advocates can support. 

I look forward to the testimony by witnesses relative to these 

issues and look forward to working with you toward the end of bipartisan, generally supported improvements on ATF gun enforcement operations. 

Thank you, Mr. Chairman. 

Chairman COBLE. I thank the gentleman from Virginia. 

3

Let me at this time recognize our witnesses. We have four distinguished witnesses with us today. Our first witness is Audrey 

Stucko, Deputy Assistant Director for Enforcement Programs and 

Services at the Bureau of Alcohol, Tobacco, and Firearms. Ms. 

Stucko began her career with ATF in 1977, working in a variety 

of positions in New York City, Philadelphia, Baltimore, and Washington, D.C. Prior to her current position, she worked as Chief of 

the Firearms and Explosives Services Division and as the Chief of 

Staff for the Enforcement Programs and Services Directorate. 

Our second witness is Mr. Richard Gardiner, attorney at law in 

Fairfax, Virginia. Mr. Gardiner is a sole practitioner with emphasis 

on criminal defense in Federal and State courts. He has briefed 

and argued criminal and civil appeals before multiple circuits of 

the United States courts of appeals and the United States Supreme 

Court. Mr. Gardiner has also previously testified before the Congress and the Virginia General Assembly. He earned his bachelor’s 

degree from Union College and was awarded his J.D. degree from 

George Mason University—as an aside, Mr. Gardiner, an institution unknown to virtually no American today. 

Our third witness is Lieutenant Michael Lara, Commander at 

the Tucson Police Department. Lieutenant Lara started his law enforcement career in 1977 as a State-certified police officer in Crown 

Point, Indiana, and moved up the ranks to become a detective and 

ultimately a supervisor. He previously taught criminal justice 

classes at the Pima Community College. Lieutenant Lara received 

a bachelor’s degree from Indiana University, a master’s degree 

from Norther Arizona University, and is a graduate of the FBI National Academy in Quantico, Virginia. 

Our final witness today is Kristen Rand, Legislative Director for 

the Violence Policy Center. In this capacity, Ms. Rand is responsible for the VPC’s policymaker education efforts and directs the organization’s research on Federal firearms policy. Previously she 

worked as counsel to the Washington office of Consumer’s Union. 

Ms. Rand is the author of numerous studies on gun policy, including Gun Shows in America. She earned her undergraduate degree 

from the University of Southern California and her J.D. was 

awarded to her from the George Washington University. 

Good to have you all with us. It is our custom to swear in all 

witnesses, so if you all would please stand and raise your right 

hands. 

[Witnesses sworn.] 

Chairman COBLE. Let the record show that each of the witnesses 

answered in the affirmative. You may be seated. 

Good to have you all with us. Now, as we have previously advised you, we are not completely inflexible but we do operate under 

the 5-minute rule. So if you all could confine your statements on 

or about 5 minutes, we—Mr. Scott and I do not become violent, but 

if you go too far astray, I may tap the gavel. Your warning sign 

will be when the amber light appears on the panel before you. That 

is your indicator that you have a minute remaining. 

Ms. Stucko, why don’t you start us off. 

4

TESTIMONY OF AUDREY STUCKO, DEPUTY ASSISTANT DIRECTOR, ENFORCEMENT PROGRAMS AND SERVICES, BUREAU 

OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES 

(BATFE) 

Ms. STUCKO. Good afternoon, Chairman Coble, Congressman 

Scott, and Members of the Subcommittee. Thank you for the opportunity to appear before you to discuss the significant contributions 

of the Bureau of Alcohol, Tobacco, Firearms, and Explosives relating to our administration of the licensing provisions of the Gun 

Control Act of 1968. 

I appreciate this opportunity to outline for the Subcommittee 

ATF’s regulation of Federal firearms licensees, which I will refer to 

as FFLs. I will begin with the application and license issuance 

process and then address voluntary FFL compliance, which is 

ATF’s primary goal. 

All applicants for a license submit an application to ATF’s licensing center in Atlanta. The applicant and any corporate officers, directors, or managers are subject to National Instant Check System 

background checks, and assuming none are felons or otherwise fall 

within a category of prohibited persons, the application is then sent 

to the ATF field division where the applicant is located. 

At that point, an Industry Operations Investigator, an IOI, conducts an interview to verify the identity of the applicant, verify 

that the applicant has a permanent location that will be available 

to ATF’s statutorily authorized inspections, and to review with the 

application the laws and regulations governing the operation of the 

applicant’s firearms business. This process benefits applicants by 

providing them with information to assist them in operating their 

business in compliance with the law. 

Once the field is satisfied that the applicant meets all the statutory criteria for licensing, the licensing center is then directed to 

issue the license. ATF attempts to complete the license process 

within 60 days, but the time period can be extended when complications arise in connection with criminal background checks or 

necessary zoning variances. 

ATF continues to educate licensees concerning their obligations 

under the law through the issuance of open letters that are mailed 

to FFLs and posted on the ATF Web site, through quarterly FFL 

newsletters and by attending industry conferences and trade shows 

to answer questions from licensees. We also provide FFLs with our 

Federal Firearms Regulations Reference Guide, which includes the 

laws, regulations, and other information about conducting a firearms business under Federal law. 

With certain exceptions, the Gun Control Act limits ATF to one 

annual compliance inspection of an FFL’s firearms records and inventory each year. There are currently over 105,000 Federal firearms licensees, and ATF conducts approximately 4,000 inspections 

of firearms licensees each year. The purpose of the inspection program is to determine whether an FFL is complying with the law 

and regulations, and if not, to obtain voluntary compliance. Voluntary compliance is encouraged by educating FFLs about the requirements of the law and regulations and by issuing Notices of 

Violation that outline the specific violations of the law and regulations that were discovered during the inspection. IOIs go over the 

5

violations outlined in the notice that the FFLs to make sure they 

understand how their business operations fell short and how to 

avoid violations in the future. 

In the event the violations are willful, the licensee may receive 

a warning letter from the field division or may be asked to attend 

a warning conference to discuss the violation and how it may be 

avoided in the future. If the violations are willful and it is determined that voluntary compliance is unlikely or that continued operation of the FFL poses a threat to public safety, the field division 

may recommend that the license be revoked. 

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, but Federal courts have consistently defined it to mean that the FFL knew of the legal requirements at issue and disregarded or was plainly indifferent to these 

requirements. This interpretation of willfulness is consistent with 

that applied in administrative proceedings held by a number of 

other Federal agencies. 

ATF has issued guidance to all field divisions outlining the types 

of violations that are suitable for warning letters, warning conferences, and revocation of licenses. The guidelines were issued to 

ensure consistency in administering the statute throughout the 

United States. 

A review of Agency data indicates that ATF typically revokes 

fewer than 100 licenses per year on the basis of willful violations 

of the law and regulations. This represents 2.5 percent of all licensees inspected annually and about .1 percent of the total FFL population. In the vast majority of these revocations, ATF has already 

provided the licensee with an opportunity to comply and previously 

issued Reports of Violation or warning letters or held warning conferences. Moreover, in almost all cases, the Federal district courts 

have upheld the Government’s actions. For example, in the past 5 

years, 33 of 36 Federal district courts reviewing ATF’s license denial or revocation decisions have upheld those determinations. Further, only one of the three adverse decisions has resulted in an 

award of fees and costs against the Government. 

Again, our goals are voluntary compliance and educating FFLs 

about their obligations under the law and encouraging business 

practices that bring about this result. ATF typically resorts to license revocation only when it is clear that voluntary compliance is 

unlikely and that continued operation of the firearms business is 

not in the public’s interest. 

Currently, license revocation hearings are held before ATF hearing officers and the proceedings are informal, where the rules of 

evidence and other judicial rules do not strictly apply. Because the 

hearings are informal, FFLs often choose to represent themselves. 

After the hearing, the Director of Industry Operations, who oversees a Division’s regulatory operations, issues a final decision. During the administrative proceedings, the FFL may continue to operate the firearms business. Thereafter, the FFL can proceed to Federal district court for review of the revocation or denial decision. 

Because a firearms license revocation is subject to trial de novo, 

a legal term which means the court can allow new testimony and 

evidence that was not considered at the administrative hearing, 

6

ATF revocation proceedings do not meet the formal adjudication requirements of the Administrative Procedures Act. This makes the 

proceedings more amenable to unrepresented FFLs who have chosen to proceed without counsel. ATF hearing officers are trained to 

accommodate the unrepresented licensees. 

We hope this information will assist the Committee in its oversight efforts, and I look forward to answering any questions that 

the Subcommittee may have. 

[The prepared statement of Ms. Stucko follows:]

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PREPARED STATEMENT OF AUDREY STUCKO


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Mr. COBLE. Thank you, Ms. Stucko. 

Mr. Gardiner. 

TESTIMONY OF RICHARD GARDINER, ATTORNEY AT LAW, 

FAIRFAX, VIRGINIA 

Mr. GARDINER. Thank you, Mr. Chairman. 

Mr. Chairman and Members of the Committee, thank you for the 

opportunity to testify today on the need to reform the laws under 

which the ATF operates. There are four major problems with the 

current process for civil enforcement against Federal licensees 

which I would like to address. 

The first, and most critical, is the fact, as Ms. Stucko mentioned, 

that there is no legal—there is no definition in the statute of the 

term ‘‘willful.’’ And as I will explain later, the interpretation that 

the Government pushes for in these cases is quite contrary to what 

Congress had in mind, if one reviews the legislative history of the 

Firearms Owners Protection Act of 1986. 

Second, 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. 

And lastly, the hearing process that Ms. Stucko mentioned is 

heavily stacked against the licensee and makes those proceedings 

essentially sham proceedings, which make them essentially worthless. 

As I mentioned, first of all, ATF treats virtually all errors in 

dealers’ records, no matter how few or how minor, as willful violations if the dealer—if they can show the dealer had been warned 

prior to what the law requires. Now, of course, all dealers know 

what the law is, so that is not very difficult to demonstrate. 

Let me give you a couple of examples. One is in a number of 

cases that I have been involved in, the purchaser of the firearm put 

on the form where he had to answer Yes or No, he put a Y or an 

N. ATF used that as a basis for revoking the person’s license. Now, 

that wasn’t the sole reason, but it was—it is in a number of occasions a basis for revoking the license, because the customer put 

down Y or N and not the word Yes or No. 

Another example is that ATF, the form requires that in addition 

to the city and State and Zip Code of the person’s place of residence 

that he also put the county of residence. ATF has revoked licenses 

or sought revocation of licenses on many instances based on the 

failure of the licensee to put down the county, even though the residence address was crystal clear from the city, State, and Zip Code 

which was put down. 

As I mentioned, this is clearly not what Congress had in mind 

when it enacted the ‘‘willful’’ standard in 1986. As the Senate Judiciary Committee report stated, the purpose of adding ‘‘willfully’’ to 

the license revocation procedure is—and I quote—‘‘to ensure that 

licenses are not revoked for inadvertent errors or technical mistakes.’’ But that is precisely what ATF is doing. It argues that that 

standard should not apply. And unfortunately, as Ms. Stucko indicated, a number of courts have agreed with ATF that inadvertent 

errors and technical mistakes are a basis for revocation and has 

upheld revocations for exactly that reason. 

16

In one case, in fact, ATF actually argued to the judge that 

Congress’s addition of the word ‘‘willfully’’ to the statute was—and 

again I quote—‘‘without practical significance.’’ And because several courts have agreed with ATF’s interpretation, that definition 

of ‘‘willful’’ is the one that ATF has continued to apply. 

Congress should make clear that ‘‘willful’’ means that the licensee had an intent to violate the law and did so with that intent. 

Second of all, ATF revokes licenses for violations which could not 

possibly create any danger to public safety. For example, in one 

case in Illinois which was just ruled on by the Seventh Circuit, the 

individual had not listed on the Form 4473 the type of ID presented. But in each instance the customer’s driver’s license number, the State firearms identification card number, or both, were 

recorded on another document which was attached to the Form 

4473. Yes, the information should have been transposed over to the 

Form 4473, but there was nothing there that would have prevented 

an effective background check, nor would it have prevented in any 

way the tracing of firearms. 

The last point I would make is with regard to the license revocation process which Ms. Stucko mentioned. It is a license process 

that is stacked against the licensee. In 1986, after passage of the 

Firearms Owners Protection Act, ATF actually repealed the regulation which required hearings to be held by an administrative law 

judge, and since then, hearings are held by an ATF employee with 

no legal training, usually an investigator from another field division or even retired ATF employees. It would be an understatement 

to say that these hearing officers are deferential to the Agency. 

They are the Agency. 

I would give one example that I think really summarizes that. 

At one of the hearings that I participated in, I had made a motion 

to dismiss the proceeding on some procedural grounds. The hearing 

officer turned to the attorney representing ATF in this hearing and 

asked, What should I do? The ATF counsel instructed him to deny 

the motion, and that is what the hearing officer did. 

This creates the—along the lines of Representative Scott’s comments—at least the impression that these hearings are not being 

conducted in a fair and neutral manner. We would urge—I would 

urge that Congress reimpose by statute the requirement that administrative law judges conduct these hearings so that the licensees—so that there is not only the actuality of fairness, but the impression of fairness. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Gardiner follows:]

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PREPARED STATEMENT OF RICHARD E. GARDINER


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Mr. COBLE. Thank you, Mr. Gardiner. 

Lieutenant Lara. 

Mr. LARA. Thank you, Chairman Coble, Representative Scott. 

Mr. COBLE. Excuse me just a moment. We have been joined by 

the distinguished gentleman from Florida, Mr. Feeney. And I 

thought I saw the Ranking Member for the Full Committee here, 

Mr. Conyers, from Michigan. Perhaps he will return. 

Lieutenant, proceed. 

TESTIMONY OF MICHAEL JAMES LARA, TUCSON POLICE 

DEPARTMENT, TUCSON, ARIZONA 

Mr. LARA. Thank you, Chairman Coble, Representative Scott, 

and Members of the Subcommittee for allowing me to tell you my 

story. I am Michael Lara from Tucson, Arizona. Currently I am a 

lieutenant on the Tucson Police Department and have been a law 

enforcement officer for 28 years. 

In 2003, I had prospects of growth and promotion. At that point, 

I was a patrol commander, when my life was altered after ATF 

charged me with making a false statement on a firearms purchase 

form. In 2002, I had purchased a handgun and then gave it to a 

friend. My friend was a law-abiding citizen and had been authorized by the Arizona State Police to carry a concealed weapon. 

On the firearms purchase form, it asked whether or not I was 

the actual buyer of the firearm. After reading the definition of what 

an actual buyer was, I answered yes on the form. At one point, 

ATF had cause to review the purchase of the firearm. The firearm 

had not been used in any criminal situation, and yet my department conducted an internal investigation and later found me innocent of any wrongdoings. 

During this internal investigation, I gave one statement, the 

focus of which was not the purchase form that I had filled out. 

After the internal investigation, I was left on administrative leave 

while ATF continued their investigation, which took 7 months. 

Three months later, ATF indicted me, claiming that I had not purchased a firearm as a gift, but that I had actually bought it for my 

friend using her money. This type of purchase is often referred to 

as a straw purchase, and the law prohibits a straw purchase to 

prevent prohibited possessors from obtaining guns. 

After charges were filed, I was fired from the Tucson Police Department. Three weeks later, I had a hearing in a U.S. district 

court, at which point I was physically arrested and subjected to 

prisoner processing before being released on my own recognizance. 

Three months after my arrest, my case went to trial. At the end 

of the trial, the jury deliberated less than 1 hour before finding me 

innocent of the charges. 

Two more months went by before I was reinstated on my job, but 

on the first day back to work I was given a 40-hour suspension 

without pay for criminal activity because I had been indicted. 

Throughout this ordeal, I held the belief that once ATF does a 

proper investigation, the case would go away. This did not happen. 

ATF based their case on the only statement taken from me by Internal Affairs. ATF failed to interview any of the witnesses to the 

firearm purchase and transfer. 

21

This was a life-altering event, and it was absolutely devastating. 

I am the father of four sons and have sole custody of them. So at 

the time of the prosecution, it had an immediate and direct impact 

on them as well. It is not hard to imagine how tough it was for 

them to face their friends and teachers, especially when the newspapers kept running headlines about a cop gone bad. 

Financially, I lost over $216,000 in savings and earnings. I had 

to refinance my home to help pay the bills and the attorney fees. 

The prosecution also had a direct impact on my retirement. I endured two great fears throughout this entire process. Number one, 

if I were found guilty, I would lose custody of my sons. Number 

two, the prospect of prison life is not a good one for an ex-officer. 

And finally, my professional career is shot. It has now been 3 

years after the event and I am still a patrol lieutenant. It was 

made clear to me that when I returned to work, I would never see 

any advancement. 

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. It was obvious that there was 

no intent of wrongdoing. And even if their perception of the facts 

were accurate, at best I would have been guilty of filling out an 

ambiguous form incorrectly. 

This prosecution should not have occurred, and it certainly, as I 

said, was life-altering. 

I would like to thank the Chair. Thank you. 

[The prepared statement of Mr. Lara follows:]

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PREPARED STATEMENT OF MICHAEL JAMES LARA


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Mr. COBLE. I thank you, Lieutenant, for being with us. 

Ms. Rand. 

TESTIMONY OF M. KRISTEN RAND, LEGISLATIVE DIRECTOR, 

VIOLENCE POLICY CENTER 

Ms. RAND. Thank you, Mr. Chairman, Members of the Subcommittee. 

I think I would just like to provide a little context here in that 

the Violence Policy Center has done a lot of research looking at gun 

dealer licensing over the decades. In 1992 we released a study 

showing that there were more gun dealers in America than gas stations. There were 245,000 Type I FFL dealers, meaning the basic 

license to deal in firearms; there were 210,000 gas stations in 

America at that time. 

And not surprisingly, with so many gun dealers out there, they 

were a primary source for illegally trafficked weapons. They were 

a primary source for straw purchases. They were virtually unmanageable by ATF. There were simply too many dealers, far too few 

agents, far too few inspections. And we documented this situation 

in many research studies and worked with the Clinton administration to impose new administrative rules and to pass new regulations. The regulations at the time were so lax that two dogs were 

licensed as gun dealers by ATF in 1990. That was a really bad situation. 

We have come a long way since then, through the tougher enforcement of existing law, higher license fees, better background 

checks. The universe of gun dealers, Type I dealers in America 

today, is around 55,000—far more manageable for ATF. And we 

think that is going in the right direction. 

We would also add that, with respect to administrative procedures, it is really important to understand that the administrative 

process for persons who are in a revocation proceeding with ATF, 

it really is skewed toward the defendant in that they have the 

right to a de novo review, meaning a court can look at new evidence. That is not required under the Administrative Procedures 

Act. We certainly want to see that there is at least an appearance—that the hearing officer is objective. That is important. But 

the current process does meet the Administrative Procedures Act, 

and we would want to have this issue studied very carefully before 

making changes in that regard. 

I think the most important thing is we have to remember what 

it was like when we had more gun dealers than gas stations. I 

know it was extremely frustrating for law enforcement, extremely 

frustrating for ATF and other enforcement agencies, and we don’t 

want to take steps backwards. 

So that I think some of the things that have been discussed here, 

the Violence Policy Center would certainly support: civil penalties, 

as long as they are meaningful, so that they are not just a slap on 

the wrist and that they are carefully gauged to be adequate for the 

violation; suspension authority for ATF, we have long supported 

that. I think that is a great idea, that revocation certainly 

shouldn’t be the only option for the Agency. But again, the Agency 

really doesn’t revoke that many licenses. They never have. 

31

1 A straw purchase is a transaction in which persons who can legally purchase guns acquire 

them for persons prohibited from gun possession by reason of a felony conviction or other disqualifier. 

So we think we just need to be very careful here, but I think, 

from the discussion today, there certainly are measures that we 

can all agree on to improve the process. But I would caution that 

we shouldn’t legislate based on anecdote. Mr. Lara’s situation 

sounds extremely unpleasant, but we just should be careful not to 

just legislate based on one anecdote and go back to the days when 

America had more gun dealers than gas stations. 

Thank you. 

[The prepared statement of Ms. Rand follows:]

PREPARED STATEMENT OF M. KRISTEN RAND

Good afternoon Mr. Chairman, I am Kristen Rand, legislative director for the Violence Policy Center (VPC). The Violence Policy Center is a non-profit think tank 

that works to reduce firearm-related death and injury through research, policy development, and advocacy. The VPC is pleased to have the opportunity to address 

issues related to Federal Firearms License holders (FFLs). 

In 1992, the Violence Policy Center released a landmark study of federally licensed firearms dealers. More Gun Dealers than Gas Stations detailed the ease with 

which a Federal Firearms License could be obtained at the time. The basic threeyear gun dealer’s license could be had for $30.00 and completion of a simple form. 

Applicants were barely scrutinized by the Bureau of Alcohol, Tobacco, Firearms and 

Explosives (ATF). The result was more than 245,000 Type I gun dealers in America—far more than the 210,000 gas stations then operating in the United States. 

The system for issuing licenses was so lax that in 1990 ATF approved applications 

for two dogs, the Washington Post revealed. 

But the sheer volume of licensees was only the tip of the iceberg. Unlike ordinary 

citizens, licensees are: able to buy and sell firearms in interstate commerce and receive firearms via common carrier; able to purchase firearms from wholesalers at 

discount and in unlimited quantities; and, are exempt from waiting periods, background checks, licensing, or registration requirements. In our 1992 study, the VPC 

documented how FFLs were abusing these privileges to funnel large numbers of 

guns into the illegal market. One of the most egregious abuses was a Virginia dealer 

who was supplying guns to criminals in the District of Columbia:

Donald Percival was an FFL who owned two pawn shops in Virginia: Ted’s Coin, Guns, Pawnbrokers, and Ted’s Coins, Guns, and Machineguns. In 1988 

ATF became aware that Percival and his employees were selling firearms such 

as MAC-11 assault pistols, 9mm pistols, and inexpensive small-caliber handguns to underage DC residents, including drug dealers. Percival warned buyers 

that he was required to notify ATF of multiple purchases, something one drug 

dealer described as ‘‘information he needed in his business.’’ The drug dealer 

said Percival had stated that all he required was a Virginia driver’s license or 

someone with a Virginia driver’s license to act as the straw man and ‘‘you can 

come down and get a gun.’’ When a Ted’s salesman was asked how to get rid 

of the serial number on a gun, he replied, ‘‘You have to pour acid over the serial 

number to get it off.’’ Percival also sold numerous guns in straw purchase sales 

to undercover ATF agents. In 1989, Percival was convicted by a jury of conspiracy and related felony federal firearms violations.

At the time, ATF identified straw purchasing 1 as the preferred method by which 

weapons were obtained by criminals in the District of Columbia. 

This is just one of the myriad examples of dealers abusing the privileges of the 

license. One infamous example was David Taylor, a Bronx, New York, man who was 

ultimately indicted by authorities in 1987 in a plot to resell in New York City at 

least 1,000 handguns he ordered using his FFL and had shipped to his apartment 

via UPS. The Bronx District Attorney called the case ‘‘the most incredible violation 

of this city’s gun laws that I or anyone else has ever heard of.’’ Moreover, because 

there was no requirement at that time that FFLs comply with state and local licensing laws, Taylor was able to circumvent New York’s tough gun laws, prompting the 

Bronx D.A. to label the federal law ‘‘disgraceful.’’

The Clinton Administration reacted to this ‘‘disgraceful’’ situation by taking a 

number of steps to crack down on license abuse. They began aggressively enforcing 

32

2See 18 U.S.C. § 921 (a)(21) and § 923 ((d)(1)(E). 3GAO Report, Federal Firearms Licensees: Various Factors Have Contributed to the Decline 

in the Number of Dealers, (March 1996). 4 5 U.S.C. § 556 (b) provides that the agency, one or more members of the body which comprises the agency, or one or more administrative law judges shall preside at the taking of evidence. 5De novo review ensures that the claim will be considered anew, the same as if it had not 

been heard before and as if no decision previously had been rendered. Ness v. Commissioner,

954 F.2d 1495, 1497 (9th Cir. 1992). Such review is ’independent.’ Premier v. Fuentes, 880 F.2d 

1096, 1102 (9th Cir. 1989). 6 18 U.S.C. § 923(f)(4). 

the statutory requirement that dealers be ‘‘engaged in the business’’ of selling fire- arms.2 Although federal law had long contained the requirement that dealers meet 

a certain level of business activity in order to be eligible for a license, this provision 

had never been enforced. In addition, the thoroughness of the background check was 

improved with a new requirement that applicants submit fingerprints and photographs, and more applicants were inspected. These administrative changes were 

augmented by new statutory requirements in 1994, including an increase in the fee 

for a three-year license from $30.00 to $200.00. Applicants were also required for 

the first time to certify that their business was not prohibited by state or local law 

and that the business would comply with all relevant state and local laws within 

30 days of license approval. 

In addition to these positive changes at the federal level, many localities—including Detroit and New York—began enforcing zoning and other local ordinances prohibiting dealers from operating from residential premises. 

The result of these policy changes has been a gradual, yet drastic, reduction in 

the number of licensees. The Violence Policy Center recently released a study with 

the most recent numbers. Today there are 54,902 Type I FFLs. Only five states— Alaska, Idaho, Montana, Oregon, and Wyoming—still have more gun dealers than 

gas stations (a copy of the study, An Analysis of the Decline in Gun Dealers: 1994 

to 2005, http://www.vpc.org/studies/dealers.pdf, has been submitted for inclusion in 

the record). 

The Government Accountability Office (GOA) analyzed the reasons for the decline 

and found that the policy changes made during the 1990s resulted in fewer applications being submitted and fewer renewals of existing licenses. The GAO also found 

that the number of licenses that were abandoned or withdrawn far exceeded the 

number of licenses denied or revoked.3 In fact, ATF very seldom revokes a license. 

The VPC’s 1992 study documented 15 years of license revocations, from 1975 

through 1990. In 1990, nine licenses were revoked. In 1975, ATF revoked seven licenses. The high during the 15-year period was during the Reagan Administration 

in 1986 when a total of 27 licenses were revoked. The low revocation numbers continue today. In 2002, ATF revoked 30 licenses and the number of revocations increased to 54 in 2003. 

The low revocation numbers may be partially the result of a process that provides 

every advantage to the licensee. Typically, after ATF finds violations, the dealer is 

warned and provided with the opportunity to remedy any violations long before revocation proceedings are initiated. Moreover, revocation is the agency’s only option 

to punish recalcitrant dealers. The agency has no general authority to suspend a 

license or to assess civil penalties. 

In addition, licensees are afforded generous appeal rights. Licensees have a statutory right to a hearing and may even request that a license revocation be stayed 

during the hearing process. Although some licensees have complained that the hearing officer is an ATF employee, this is entirely consistent with the Administrative 

Procedure Act (APA),4 the federal statute governing administrative adjudications. 

A licensee who does not prevail at the agency hearing has the right to appeal the 

revocation decision to a United States district court and is entitled to de novo review 

of his claim.5 The de novo standard of review was added to the judicial review provision in 1986 by the National Rifle Association-backed Firearms Owners’ Protection 

Act (FOPA), legislation designed primarily to loosen restrictions on federal firearms 

licensees. The FOPA also added language that entitles a licensee to submit evidence 

in court that was not considered at the agency level hearing. 

Another FOPA addition provides a huge advantage to a licensee who is the subject of criminal charges where the proceedings are terminated or the defendant is 

acquitted. This provision prohibits the Attorney General from revoking a license 

based ‘‘in whole or in part on the facts which form the basis of such criminal 

charges.’’ 6 The Reagan Department of the Treasury opposed this change to the statute pointing out, ‘‘Because the burden of proof on the Government is less stringent 

in civil actions, a civil license denial or revocation proceeding should not depend on 

33

7 132 Cong. Rec. H507 (1986) (statement of Rep. Hughes). 

8 Vernon Clark, ‘‘Seven charged in gun-buying, robbery spree: Weapons obtained illegally 

through ‘straw buyers,’ were used to rob banks, local and U.S. officials said,’’ The Philadelphia 

Inquirer, February 9, 2006, p. B03. 9 Associated Press, ‘‘Five charged in illegal gun sales,’’ March 2, 2005, State and Regional. 10 Josh White and Jerry Markon, ‘‘2 Manassas Gun Dealers Charged; Weapons Sold to Felons 

and for Use in Crimes, ATF Says,’’ Washington Post, March 18, 2004, Prince William Extra, 

T02. 11Fred Kelly, ‘‘Woman admits buying 2 pistols on behalf of felons,’’ The Indianapolis Star,

March 11, 2004, p. 3B. 12 Associated Press, ‘‘News in brief from western Pennsylvania,’’ March 22, 2003, State and 

Regional.

the outcome of the criminal case. No constitutional rights are violated by the civil 

proceeding when the applicant or licensee was previously acquitted of criminal 

charges.’’ 7

There are several benefits to the significant decline in the number of FFLs. A 

smaller universe of dealers makes it easier for ATF to focus its inspections. ATF 

has also noted that fewer dealers makes it easier to complete firearm trace requests 

since it reduces the number of dealers who cannot be located because they have 

changed residences. 

The decline in the number of licensed gun dealers coincided with a very significant drop in overall gun death in America. Gun-related deaths peaked in 1993 at 

39,595. In 2003, the latest year for which complete figures are available, there were 

30,136 gun-related deaths. 

But the fact that FFLs are difficult to revoke and licensees’ rights are so well protected may help explain why straw purchases continue to contribute significantly to 

illegal gun trafficking, despite the decline in the number of licensed dealers. In its 

June 2000 report detailing 1,530 criminal gun trafficking investigations, ATF identified straw purchasing as ‘‘the most common channel in trafficking investigations’’—

with straw purchasing involved in almost half of all trafficking investigations. The 

report also found that because licensed dealers have access to large numbers of firearms, corrupt FFLs diverted the highest volume of guns into the illegal market. 

Moreover, where FFLs cooperated with straw purchasers and straw-purchasing 

rings, the average number of firearms trafficked per investigation was 114.8 compared to 32.8 in cases where there was no FFL involvement. 

Recent straw purchasing prosecutions include the following:

• In 2006, seven people were indicted in Philadelphia for using straw purchases 

to obtain guns, including an AK-47 assault rifle, they used in robberies at 

banks and fast-food restaurants and to shoot at a police officer.8

• In 2005, two FFLs in Fairmont, West Virginia, were indicted for facilitating 

straw purchases at two pawn shops.9

• In 2004, two FFLs in Manassas, Virginia, were arrested for facilitating straw 

purchases of various types of guns over a two-year period. One of the dealers 

was recorded telling an informant that he knew that what he was doing was 

wrong.10

• In 2004, a woman pleaded guilty to purchasing two semiautomatic handguns—one of which was used in the slaying of a three-year-old child—for felons from Don’s Guns in Indianapolis. The woman was arrested as part of a 

federal gun trafficking investigation that involved the straw purchase of at 

least 28 guns from Don’s Guns.11

• In 2003, the owner of a Pennsylvania gun shop and his father were sentenced 

to prison terms for supplying guns to a straw purchaser.12

The steep decline in licensed gun dealers in America is one of the unsung victories 

in the effort to prevent firearm-related violence and protect public safety. The gun 

lobby is desperate to reverse this decline. They have, in fact, succeeded in inserting 

a provision in ATF’s annual spending bills for fiscal years 2005 and 2006 that prohibits ATF from refusing to grant or renew a dealer’s license for ‘‘lack of business 

activity.’’ In order to continue in the right direction, ATF needs more resources to 

monitor dealers’ operations and identify the ‘‘bad apple’’ dealers whose licenses 

should be revoked. The agency needs more flexibility to punish corrupt dealers, such 

as the authority to suspend licenses and assess civil penalties. 

Let’s not go back to the days when America had more gun dealers than gas stations.

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Mr. COBLE. Thank you, Ms. Rand. 

Now, we impose the 5-minute rule upon ourselves as well, so if 

you all could tersely respond to our questions, we would appreciate 

that. 

Ms. Stucko, would the creation of civil penalties, including the 

suspension of an FFL license—is that a concept that ATF would 

support? 

Ms. STUCKO. I think we would need time to analyze any specific 

situation, but we would certainly be open to considering and working with the Committee on any possibilities. 

Mr. COBLE. Ms. Rand, your organization—strike that. 

Does your organization support the idea of establishing a graduated civil penalties structure for FFLs that violate the law? 

Ms. RAND. Yes, we would support meaningful civil penalties, and 

also urge that the issue of indexing them for inflation be looked at 

as well, so that once they are on the books for 10 or 20 years, that 

they are still relevant. That would be another issue we would recommend that you look at. 

Mr. COBLE. Would that include the implementation of the option 

to suspend an FFL license? 

Ms. RAND. Yes. We are very supportive of the idea of suspension 

authority. 

Mr. COBLE. Lieutenant Lara, I empathize with you. That was a 

very compelling testimony that you gave. And just as an aside, I 

note that you were acquitted after a 3-day trial. How long was the 

jury out? 

Mr. LARA. The jury was out less than 1 hour. 

Mr. COBLE. I would have thought that would—less than 1 hour? 

Mr. LARA. Less than 1 hour. 

Mr. COBLE. Were you interviewed, lieutenant, by any representative representing ATF or the Department of Justice prior to your 

having been charged? 

Mr. LARA. No, I wasn’t. 

Mr. COBLE. Mr. Gardiner, you touched on this. Well, strike that. 

Let me go back to Ms. Rand a minute. 

Ms. Rand, does your organization support a complete ban on civilian sale of firearms in the United States? 

Ms. RAND. No, Mr. Chairman. We support a ban on sales of 

handguns, assault weapons, .50 caliber sniper rifles. But we do not 

support a ban on sporting rifles and shotguns. 

Mr. COBLE. Mr. Gardiner, you touched on this, but I am going 

to give you a chance to extend in a little more detail regarding the 

different interpretations of the term ‘‘willful’’ in criminal and civil 

cases. Elaborate a little on that, if you will. 

Mr. GARDINER. Yes, in 1986, Congress put the word ‘‘willful’’ into 

both the license revocation provision and the criminal provisions in 

924. Since then, the U.S. Supreme Court has interpreted the word 

‘‘willfully’’ in the criminal provision that Congress enacted and 

said, in a case called United States v. Bryan, and said that ‘‘willful’’ means that the person had to act knowing that he was acting unlawfully and acting with a bad purpose. That is classic criminal intent. 

In the civil context, interpreting the same word, the same word ‘‘willfully’’ that Congress put into the same act at the same time, 

47

the ATF has taken the position that that word does not mean what 

it means in the criminal context, despite the fact that it is the 

same word, but that it means that if a dealer was aware what his 

legal obligations were and he commits that violation, even if he 

only does it on a very, very few occasions, that that is a willful violation. 

The example I would give is this case that was decided by the 

Seventh Circuit. There were 880 forms involved. There were 12 

forms which had one or two errors on them—and 880 forms would 

be 34,320 blocks of information of which 19 had errors. And the errors were, for example, that the driver’s license number was not 

transposed from another document. That is a 99.96 percent perfect 

completion record, 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 .04 percent, because he knew what his 

legal obligations were. 

Essentially, what the ATF position is, that human beings can 

make no mistakes. And 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.’’ Mr. COBLE. Thank you, Mr. Gardiner. 

Ms. Rand, you indicated that fewer dealers is a move in the right 

direction. I realize hypothetical questions are sometimes difficult to 

answer, but let me throw one at you. How many gun dealers do 

you think there should be? Or do you have an idea for that? 

Ms. RAND. Well, the problem primarily is with dealers who aren’t 

operating under storefront businesses. Historically the real problem 

has been so-called kitchen table dealers, who get the licenses and 

operate out of their homes or offices, and that they tend not to, you 

know, really engage in the business of selling firearms. So our position has been if you clean out all these so-called kitchen table dealers and limit the licenses to stocking dealers, that would probably—I mean, I don’t actually know how many that would be, but 

I think it is estimated that about 40 percent now are still kitchen 

table dealers. 

Mr. COBLE. Now, let me beat that red light before Mr. Scott 

comes after me. 

Mr. Gardiner, you heard the lieutenant’s testimony. Does that 

portray cases in which you have been involved? 

Mr. GARDINER. Yes. 

Mr. COBLE. That severe? 

Mr. GARDINER. That severe. I have had similar cases. I had one 

case in West Virginia where there were 206 counts. The gentleman 

was acquitted of 201 of them. 

Mr. COBLE. Thank you, sir. 

The gentleman from Virginia. 

Mr. SCOTT. Thank you. 

Mr. Gardiner, following up——

Mr. COBLE. Mr. Scott, if you would, we have been joined by the 

distinguished gentleman from New York, Mr. Weiner. Good to have 

you with us. 

Mr. Scott. 

Mr. SCOTT. Thank you. 

48

Mr. Gardiner, let me follow up on that. What was the sanction 

imposed in that case? Is that a revocation case? 

Mr. GARDINER. Which, the one in the Seventh Circuit are you 

talking about? 

Mr. SCOTT. Well, either the 201 out of 206, or the didn’t transpose the—— Mr. GARDINER. The 201 out of 206 was a criminal prosecution, 

and the other one—— Mr. SCOTT. What sanction was imposed? 

Mr. GARDINER. Well, he was convicted. I mean, he was acquitted 

of 201 counts, so no sanction, and the sanction that was imposed 

for the remaining five counts, which are pending under appeal, was 

a 24-month jail sentence. And on the other one, the sanction was 

revocation because, as has been pointed out by several witnesses, 

the only sanction that ATF has available by statute is revocation. 

Mr. SCOTT. So you would agree that fines and possible suspension, kind of intermediate sanctions, would be a good idea? 

Mr. GARDINER. Yes. 

Mr. SCOTT. You are a lawyer. Do you represent generally the gun 

dealers as clients? 

Mr. GARDINER. I have represented gun dealers. I have also represented individuals who are not gun dealers, although I didn’t represent Mr. Lara, but cases similar to his. 

Mr. SCOTT. On the term ‘‘willful,’’ could you give some other examples of how that new interpretation gets us in trouble? 

Mr. GARDINER. Well, what it means is that any dealer who ATF 

has told in one of these warning conferences that he has mistakes 

on his 4473 Forms or his acquisition disposition log, if he makes 

those mistakes again, even if he does it in .04 percent of the time, 

in ATF’s view that is a willful violation. They give no room for 

human error. 

Mr. SCOTT. And then you are looking at revocation or nothing, 

or a criminal offense? 

Mr. GARDINER. Correct. 

Mr. SCOTT. Now, in reference to the hearing officer, presently 

how do they pick the hearing officer? 

Mr. GARDINER. The hearing officer is selected—there is a person 

called a Director of Industry Operations, and I don’t know exactly 

where he is in the hierarchy, but he is a field person, and he selects the hearing officer. And the person he selects is usually someone from outside the region, so he doesn’t—but he is an ATF inspector. He is brought in from outside the region, so I guess he 

doesn’t know, theoretically doesn’t know any of the players. 

Mr. SCOTT. And if we change that to the normal administrative 

process act, who would be the hearing officer? 

Mr. GARDINER. It could be—I believe that the statute should require that it be an administrative law judge. Under the current Administrative Procedures Act, agency employees can conduct certain 

types of hearings. I think in a situation like this, it would be much 

wiser for Congress to just simply require by statute that it be an 

administrative law judge. Because we do have legal issues here 

which are of significance, and you need someone who has legal 

training to be able to interpret them and be able to interpret and 

apply, at least to the degree they apply, the rules of evidence. 

49

Mr. SCOTT. Okay. Ms. Stucko, you indicated that you won 33 out 

of 36 cases in court. 

Ms. STUCKO. That is correct. 

Mr. SCOTT. And those are on revocations? 

Ms. STUCKO. Those are on revocations, correct. 

Mr. SCOTT. Now, how many people did—I assume everybody you 

revoked didn’t go to court? 

Ms. STUCKO. No, those are the cases that did go to court. 

Mr. SCOTT. Do you know how many you revoked altogether? 

Ms. STUCKO. Approximately 100 each year. And that is about 

one-tenth of 1 percent of the total population of FFLs. 

Mr. SCOTT. Okay. And 100 a year, and over what time was the 

33 out of 36? 

Ms. STUCKO. That was over a 5-year period. 

Mr. SCOTT. So out of 500, you lost 3 cases. 

Do you support the intermediate sanctions, the fines and suspensions, as opposed to revocation or nothing? 

Ms. STUCKO. We are open to taking a look at intermediary measures. 

Mr. SCOTT. Mrs. Rand, how would we establish a standard that 

would reduce the number of licensees? If someone is well qualified 

and wants to be a licensee, what should be the process? 

Ms. RAND. Well, I mean, there are many jurisdictions, and I 

think the District of Columbia is one that has a process in place 

in its interaction between ATF and local law enforcement. If you 

apply for a dealer’s license in the District, you get a visit from an 

ATF inspector and from—and you have to notify the local law enforcement and you have to meet all zoning requirements, you have 

to be in compliance with all business license laws, et cetera, et 

cetera. And the combination of those two things have worked in 

D.C. and other jurisdictions—— Mr. SCOTT. So you would limit the license to someone who was 

actually in the business, not just trading frequently? 

Ms. RAND. Correct. We would limit it to preferably people who 

are running stocking gun stores. 

Mr. SCOTT. Mr. Gardiner, do you have a problem with that as a 

limitation on licensees? 

Mr. GARDINER. That is already the law. As Ms. Rand pointed out, 

that changed during the Clinton administration in 1994 to require 

the compliance with zoning laws. And that is what I think has led 

to the significant decline in the number of dealers, from about 

250,000 to about 55,000. 

So, no, I don’t have a problem with it because it is already the 

law. 

Mr. SCOTT. Okay. Thank you. 

Mr. COBLE. The distinguished gentleman from Florida, Mr. 

Feeney. 

Mr. FEENEY. Thank you, Mr. Chairman. 

You know, Ms. Rand, you have already acknowledged that with 

the exception of some sporting rifles, your organization would be in 

favor of pretty much an outright ban on sales of handguns and assault weapons and a variety of other weapons. It seems to me that 

the—you said it three or four times, and of course we have your 

written testimony which is in more detail and has some facts, but 

50

it seems to me that your major premise is how horrible the notion 

is that there are more gun dealers than gas stations in the United 

States as of 1992. 

It occurs to me that when we won the Revolutionary War and 

World War I and probably World War II we had more gun dealers 

in the United States than we did gas stations. And somehow we 

wobbled along as a Nation and protected some of our liberties. 

I think it is somewhat of a nonsequitur to say that because you 

have more gun dealers than gas stations, that somehow you have 

a society on the brink of collapse. And yet you repeated that several times in your 5-minute testimony. 

Ms. RAND. Well, actually, I mean, we did a new research study 

looking at the decline in dealers in the States that still do have 

more gun dealers than gas stations, one of which is Alaska, which 

has three times more gun dealers than gas stations, and in fact 

regularly ranks at the top of the list of States with the highest 

overall firearm-related gun death rates. So——

Mr. FEENEY. How many gun dealers are there in Washington, 

D.C. that are licensed? 

Ms. RAND. I don’t—I would guess probably 11 or 12. I guess that 

would be——

Mr. FEENEY. How many, given the population? 

Ms. RAND. But see, the problem in D.C. is that the guns used in 

homicides here invariably come from out-of-State. Ninety-seven 

percent of the guns causing harm in the District——

Mr. FEENEY. Well, with all due respect——

Ms. RAND.—come from outside of the District——

Mr. FEENEY. One of the rational arguments here is that to the 

extent that you license more people that are dealing in guns—because not everybody who is dealing in guns, as you just pointed 

out, is licensed—so to the extent that you have a higher percentage 

of the people that are dealing licensed, it gives the ATF the ability 

to regulate everybody that is transferring weapons. 

Ms. Stucko, you just responded to my colleague that you didn’t 

necessarily have a problem with looking at some intermediary effort to enforce licensed gun dealers so that we are not focusing on 

the minor paperwork problems, but rather getting after people that 

are willfully or deliberately or in a gross negligent way not complying with the intent and the meaning of the law. Would you support a look at a graduated set of penalties so that we don’t throw 

everybody who has made one or two paperwork errors out of 205 

things that they are charged with, don’t throw everybody in the 

same bus with a dealer that literally is going out of his or her way 

to violate the law and transfer weapons? 

Ms. STUCKO. I think we are definitely open to looking at a graduated tier. 

I would like to clarify that willfulness doesn’t necessarily result 

in a revocation. Willfulness just establishes that a violation has 

taken place. And while some violations may be defined by others 

as being minor, I mean they are violations, but what we do is we 

take in—we take the overall picture. We look at the FFL as a 

whole. And depending on what the circumstances are would warrant whether or not revocation is needed. 

51

Mr. FEENEY. Well, we have at least one prosecutor who is on 

record telling a Federal judge that ‘‘no errors’’ are permissible. I 

wondered what would happen if we would hold FEMA or, say, the 

National Immigration Service to the standard that no errors are 

impermissible. It seems to me a pretty high standard. You may not 

do that on every basis, but—— Ms. Rand, you indicated that the appellate process is, I think you 

put it, quite liberal for ATF licensees that are charged with some 

of these minor offenses. Actually, you put it ‘‘generous appeals 

rights.’’ But in fact, the testimony of Mr. Gardiner is that the appeals process goes to the prosecutor. It is basically the ATF’s agent 

that you get to appeal to. Do I understand—how do you reconcile 

your testimony with his—I have to go to the prosecutor? 

Ms. RAND. You start at ATF, where there is a fact-finding hearing. And then if you lose at that stage, you have the right to appeal 

to the district court and present your case there. And——

Mr. FEENEY. Mr. Gardiner, do they have to take that appeal to 

the district court level? 

Mr. GARDINER. After the so-called administrative hearing, then 

you have a right to go into court. That is correct. 

Mr. FEENEY. What is your problem with the appellate process as 

a matter of due process and fairness? 

Mr. GARDINER. Well, the problem with the appellate process as 

it now exists is that this administrative hearing, where presumably 

most of these cases should end, is a sham proceeding because you 

have this ATF employee, an investigator from just outside the region, who is conducting the hearing. And what I didn’t get to mention earlier but I will mention now is that when he then goes back 

to review his decision, he consults the very counsel at ATF and the 

director of industry operations who made the decision in the first 

place. So it really is not a hearing process as is commonly understood administratively. 

And the problem with the judicial review, though it is certainly 

a good thing, is that most of the judges take the position, based on 

ATF’s argument, that they are simply looking at what the hearing 

officer did. So you don’t really now have any meaningful review. 

Mr. FEENEY. Well, Mr. Chairman, if there is no objection, I want 

to get to this. Because Ms. Rand makes a point that you are entitled to a de novo hearing, you say that it is quite deferential. Are 

you saying that the practice is different than the de jure procedure? 

Mr. GARDINER. That is what I am saying, is that—that is exactly 

what I am saying, that ATF has taken the position that the de 

novo review is limited to a de novo review of the administrative 

process; that is, the judge can look at the administrative process 

himself but he doesn’t do anything beyond that. And that is the 

problem, is that then you depend on having a fair administrative 

process, but you don’t have a fair administrative process, so the de 

novo judicial review essentially becomes meaningless. 

Mr. COBLE. I thank the gentleman. 

I commend the Members of the Subcommittee and the witnesses 

for staying pretty well within the time frame. You all have contributed very significantly, I believe. And I thank you for your testimony. The Subcommittee very much appreciates the contribution. 

52

In order to ensure a full record and adequate consideration of 

this important issue, the record will be left open for additional submissions for 7 days. Also, any written questions a Member wants 

to submit should be submitted within the same 7-day period. 

This concludes the oversight hearing on the Bureau of Alcohol, 

Tobacco, Firearms, and Explosives: Reforming Licensing and Enforcement Authorities. 

We will now proceed with the legislative hearing on H.R. 5005, 

the ‘‘Firearms Corrections and Improvement Act.’’ We stand adjourned as far as the first panel is concerned. 

[Whereupon, at 2:53 p.m., the Subcommittee was adjourned.] 

(53)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE ROBERT C. SCOTT, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF VIRGINIA, AND RANKING MEMBER, SUBCOMMITTEE

ON CRIME, TERRORISM, AND HOMELAND SECURITY

Thank you, Mr. Chairman. I am Pleased to join in convening this hearing on ATF 

licensing and enforcement authorities. We have held two previous hearings on ATF 

gun law enforcement activities. This hearing focuses primarily on ATF gun licensing 

issuance and regulations procedures and practices. 

I believe there are several areas under current licensing regulations that we can 

all agree warrant some change. Adding fine and suspension authority to the current 

revocation only authority for licensing violations is one such area of general agreement. I believe that in according due process, the appearance of impartiality is an 

important component. While there is nothing to establish that ATF appointed employees cannot serve as fair and impartial hearing officials, I believe that the appearance of impartiality is served by having those officers from a agency and appointment source. And I am open to the suggestion that the ATF could benefit from 

a study of its operations and resource allocations and from general operational 

guidelines relative its enforcement activities, as with other agencies under the department of Justice. 

Whatever we may do legislatively, Mr. Chairman, I believe that our goal should 

be to improve the operational effectiveness as well as the fairness of the ATF’s gun 

law enforcement and licensing responsibilities. The ATF has an important function 

and responsibility with respect to the enforcement of our federal gun laws. While 

we want to ensure that these functions and responsibilities are applied in manner 

that promotes the support and respect of the citizens they affect, we don’t want to 

do so at the expense of diligent and effective enforcement. 

Mr. Chairman I know that our staff’s are working on legislation that will reform 

some of the ATF’s current enforcement procedures and options. It is my hope that 

the legislation will reflect improvements that we can agree with on a bi-partisan 

basis, and that gun control, as well gun rights, advocates can support. I look forward to the testimony of our witnesses relative to these issues, and I look forward 

to working with you towards the ends of bi-partisan, generally supported improvements in ATF gun enforcement operations. Thank you.

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PREPARED STATEMENT OF BRUCE R. BARANY, CO-OWNER, THE GENERAL STORE, 

SPOKANE, WASHINGTON


bb1.eps
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PREPARED STATEMENT OF JAMES. M. FAIRCLOTH, OWNER, JIM’S PAWN SHOP, INC., 

FAYETTEVILLE, NORTH CAROLINA


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PREPARED STATEMENT OF STANTON MYERSON, OWNER, LOU’S OF UPPER DARBY, INC., 

UPPER DARBY, PENNSYLVANIA


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Æ


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