UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-2172

JERRY LYNN MERSHIMER; LORI LORAINE MERSHIMER, d/b/a Spirit 

Gun Shop, 

Plaintiffs – Appellants, 

v. 

CARLTON BOWERS, Director of Industry Operations Charlotte 

Field Division, Bureau of Alcohol, Tobacco, Firearms & 

Explosives, 

Defendant – Appellee. 

Appeal from the United States District Court for the Western 

District of North Carolina, at Asheville. Lacy H. Thornburg, 

District Judge. (2:07-cv-00025-LHT) 

Submitted: September 17, 2010 Decided: September 29, 2010

Before KING and AGEE, Circuit Judges, and HAMILTON, Senior 

Circuit Judge. 

Affirmed by unpublished per curiam opinion. 

Richard E. Gardiner, Fairfax, Virginia, for Appellants. Edward 

R. Ryan, Acting United States Attorney, Sidney P. Alexander, 

Assistant United States Attorney, David C. Lieberman, Associate 

Chief Counsel, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM: 

Jerry Lynn and Lori Loraine Mershimer, d/b/a Spirit 

Gun Shop (“Spirit”), appeal the district court’s order granting 

summary judgment in favor of the Bureau of Alcohol, Tobacco, 

Firearms, and Explosives (“ATF”) and dismissing its petition for 

review of the ATF’s final administrative decision revoking 

Spirit’s firearms dealer’s license for violations of the Gun 

Control Act of 1968 (“GCA”), 18 U.S.C. §§ 921-30 (2006), and its 

implementing regulations. Spirit argues that the district court 

erred in granting summary judgment on the basis of the 

administrative record and because its violations were not 

willful. We affirm. 

We review de novo the district court’s adverse grant 

of summary judgment and construe the facts in the light most 

favorable to Spirit. Rowzie v. Allstate Ins. Co., 556 F.3d 165, 

167 (4th Cir. 2009). Summary judgment may be granted only when 

“there is no genuine issue as to any material fact and . . . the 

movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(c)(2). After notice and opportunity for a hearing, 

the Attorney General may “revoke any license issued pursuant to 

18 U.S.C. § 923 if the holder of such license has willfully 

violated any provision of the GCA or any rule or regulation 

prescribed by the Attorney General under the GCA.” Am. Arms 

Int’l v. Herbert, 563 F.3d 78, 82 (4th Cir. 2009) (internal 
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quotation marks, alterations, and ellipsis omitted). Summary 

judgment in favor of the ATF is proper “if no genuine issue of 

material fact exists about whether the licensee willfully 

violated an applicable statutory or regulatory provision.” Id.

(internal quotation marks and alteration omitted). A willful 

violation of the GCA or its implementing regulations is present 

where a licensee deliberately disregards or exhibits plain 

indifference toward his known legal obligations. Id. at 84. 

We have reviewed the record and the parties’ briefs 

and conclude that summary judgment in the ATF’s favor was 

proper. Spirit admitted violating the GCA and implementing 

regulations by failing to timely record the disposition of 

twenty-seven firearms, and we have no trouble concluding that 

Spirit’s violations were willful. 

As a firearms licensee, Spirit was required by the GCA 

and applicable regulations to comply with a number of 

recordkeeping requirements administered by the ATF. See 18 

U.S.C. § 923. In accordance with the GCA and applicable 

regulations, Spirit was also subject to compliance inspections 

of its premises. In April 1997, the ATF conducted an inspection 

and cited Spirit for failing to properly record transferee 

identification information, in violation of 27 C.F.R. 

§ 478.124(c) (2010), and failing to maintain a repair record, in 

violation of 27 C.F.R. § 478.125(e) (2010). The inspector 
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reviewed his violations report with principal Jerry Mershimer. 

A warning letter was subsequently sent to Spirit, reminding it 

that its license was conditioned upon compliance with federal 

firearms laws and regulations and that repeat violations “will 

be viewed as willful, and may result in the revocation of [the] 

license.” 

The ATF conducted its next inspection in March 2002, 

and the inspector’s violations report cites Spirit for, among 

other violations, failing to timely record the sale or 

disposition of fifteen firearms in the acquisition and 

dispositions record, in violation of 27 C.F.R. § 478.125(e). 

The inspector reviewed the violations report and relevant 

provisions of the GCA and regulations with Jerry Mershimer. 

Included in this regulatory review was a list of Spirit’s 

recordkeeping obligations under 27 C.F.R. § 478.125(e). 

In January 2006, the ATF conducted another inspection, 

and the inspector’s violations report cites Spirit for, among 

many other violations, failing to timely record the purchase or 

other acquisition of over 180 firearms and failing to timely 

record the sale or other disposition of twenty-one firearms in 

the acquisitions and dispositions record, in violation of 27 

C.F.R. § 478.125(e). As before, the inspector reviewed both the 

violations report and relevant provisions of the GCA and 

regulations with Jerry Mershimer. On February 16, 2007, the ATF 
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issued a Notice of Revocation of License (“NORL”) to Spirit. 

Four days later, the ATF conducted yet another inspection, and 

the inspector determined that, since the 2006 inspection, Spirit 

had again violated 27 C.F.R. § 478.125(e) by failing to timely 

record the disposition of six firearms in the acquisition and 

dispositions record. In May 2007, the ATF issued an amended 

NORL to Spirit, alleging six charges of numerous willful 

violations of the GCA and implementing regulations as grounds 

for the revocation of its firearms dealer’s license. 

At Spirit’s request, the ATF held a hearing in June 

2007. The hearing officer determined that Spirit willfully

violated the GCA and its implementing regulations by failing to 

timely record the disposition of twenty-seven firearms, in 

violation of 18 U.S.C. § 923(g)(1)(A) and 27 C.F.R. 

§ 478.125(e), and falsely recording the transfer of two 

firearms, in violation of 18 U.S.C. § 922(m) (2006). Following 

the hearing, the ATF served Spirit with a final NORL. 

Spirit filed a petition for de novo judicial review of 

the revocation of its license, pursuant to 18 U.S.C. 

§ 923(f)(3). It contested the ATF’s conclusions that it 

willfully violated the GCA and regulations. The Respondent ATF 

official moved for summary judgment. In response, Spirit 

maintained that, although it had failed to timely record the 
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disposition of the twenty-seven firearms, its failures were not 

willful. 

Based on our review of the record, we agree with the 

district court that Spirit’s admitted violations were willful. 

The facts readily reveal that, by the time of the 2007 

inspection, Spirit had known for nearly a decade that its 

firearms license was conditioned upon its compliance with the 

GCA and its implementing regulations, and that such compliance 

included adherence to the recordkeeping requirements of 

27 C.F.R. § 478.125(e). Despite this knowledge, however, in the 

ensuing years prior to the issuance of the original NORL, Spirit 

failed to comply with those recordkeeping provisions in at least 

216 instances. Such failures occurred even though the ATF had 

conducted reviews of the violations reports and a regulatory 

review with Jerry Mershimer. Moreover, Spirit’s recording 

failures continued even after the issuance of the original NORL. 

The violations reports, warning letter, regulatory review, and 

even the issuance of a revocation notice were not enough to

bring Spirit into compliance. In view of these circumstances, 

we conclude that Spirit was plainly indifferent toward its legal 

obligations. 

We also reject Spirit’s claims of error, raised for 

the first time on appeal, concerning the authentication of the 

administrative record and the district court’s reliance on it. 
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See Karpel v. Inova Health Sys. Servs., 134 F.3d 1222, 1227 

(4th Cir. 1998). We therefore affirm the district court’s 

order. We dispense with oral argument because the facts and 

legal contentions are adequately set forth in the briefs and 

argument would not aid the decisional process. 

AFFIRMED