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ScreenHunter_10 Jun. 25 15.07

A complaint filed Tuesday in the United States District Court for the District of Columbia seeks an order to compel the Bureau of Alcohol, Tobacco, Firearms and Explosives to comply with a Freedom of Information Act request filed in March and ignored in violation of federal law. The FOIA sought copies of policies and rulings relied on in enforcement and determination actions . . .

The complaint was filed by attorney David T. Hardy of Tucson on behalf of plaintiffs including Federal Firearms Licensee Len Savage, the not-for-profit FFL Defense Research Center, and this writer. It charges that the ATF did not respond to a joint Freedom of Information Act records request filed in March, with a required response period of 20 business days. And that administrative remedies for the plaintiffs have been exhausted.

Sought in the original request were copies of

instructions, policies or guidance given to agents who serve as hearing officers, or to their superiors, in connection with determining whether an FFL’s license should be revoked or suspended, or issuance of a license be denied, or a civil fine imposed; BATFE’s Federal Firearms Action Policy and Procedure … as currently in force; opinions or positions or determinations as to how complete a firearm receiver must be before it becomes a ‘firearm’ (the point when a ‘receiver blank’ becomes a ‘receiver’); opinions, rulings, policies or interpretations as to which [part] is the receiver for GCA or NFA purposes; opinions, rulings, policies or interpretations relating to or interpreting the term ‘readily restored’; [and] instructions, policies, criteria or guidance relating to granting or denying a remission or mitigation of a forfeiture or of a civil penalty.

The information requested is critical to ensure that citizens don’t suffer penalties due to conflicting rulings. Without clear policies, enforcing compliance and demanding accountability can become inconsistent and arbitrary.

As pointed out in a recent GUNS Magazine column, contradictory accountability expectations are hardly new. How they come about is hardly surprising; the current system appears to guarantee them.

In 2005, the Congressional Research Service published a memorandum regarding ATF firearms testing procedures. Among other things, it revealed that the ATF has “over 300 cubic feet of classification letters stored in file cabinets.” The Bureau hasn’t scanned any of these documents into a searchable database to assure consistency of interpretation, to identify and resolve regulatory conflicts. The extent to which this inconsistency has grown and compounded in intervening years is unknown and unknowable without a major organization and review effort.

The complaint filed by Hardy may be the first step in unraveling the ATF’s mess. It asks the court to “order defendant to disclose the requested records in their entireties and make copies available to plaintiffs … award plaintiffs their costs and reasonable attorneys fees; and … grant such other relief as the Court may deem just and proper.

The case has been assigned to Judge Beryl Howell. Howell’s an Obama appointee who nonetheless ruled for the plaintiff in another case where the government withheld names and addresses of landowners in a FOIA response to a Texas border fence inquiry. In the absence of a compelling interest – which is not evident in ATF’s situation – it’s difficult to fathom how the ATF can justify refusing to disclose its rules are to people they hold accountable for their compliance.

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  1. Welcome aboard TTAG David. And watch out ATF. Codrea, Hardy and Savage. Now there’s a tour de force to be reckoned with. Give ’em hell. And thank you all for all of your work; you men are truly giants.

  2. Who know who else we would love to have on TTAG? Alan Gottlieb. With him and David tag teaming writing duties, the ATF will be trembling in their jack-boots.

    • Reference Gottlieb…no thanks. Clearly available evidence shows that he is a compromising weasel. David Codrea is an actual principled man, focused on true fundamental Liberty….Allen Gottlieb, not even in the same genus.

    • Gottlieb is nothing but a snake oil salesman. If there weren’t gun control of some type, he would not make any money. He needs gun control so that his sheep will follow him and donate.

  3. Except, of course, they will ignore it because their Lord and Master Obozo the traitor will order them to. Count on it. “L’etat c’est lui.”
    and welcome David. Glad to see that you dove right in the deep end.

    • ^ This.

      The Executive Branch of our federal government had no trouble whatsoever ignoring a Congressional subpoena demanding disclosure of Fast and Furious documents. Why would anyone believe that the ATF (which falls under the IRS which falls under the Justice Department which falls under the Executive Branch) would have any interest in complying with a court order to comply with a Freedom of Information Act request?

      Believe it or not, elections have consequences. This is part of what the people voted and put in office.

      • Actually, ATF USED to fall under the IRS, but was re-assigned to Justice Department some years ago. The IRS does NOT fall under the Justice Department, it falls under the auspices of the Treasury Department. The original mandate of the ATF was tax collection, post notably for cigarettes and alcohol, the latter whether imported or local moonshine production. Hence the old moniker “revenuers.” (or in some places, “revenoors.”)

        • Thank you for the correction Mark N.

          Either way, ATF falls under the Justice Department which has already demonstrated that it will not comply with outside orders for documents. If the Justice Department is all too happy to refuse to comply with Congress, I have no doubt that they will be equally happy to refuse to comply with the Courts.

  4. And look! No pop-ups! No autoplay ads! The Examiner’s loss is TTAG – and its readers – gain. Welcome David. Sic ’em!

    • Amen Brother. And good work. I’m exceptionally glad that you and David could come to an agreement. The RKBA movement will be all the better for it. Sláinte and pentru sănătatea ta. May this be the beginning of a long and beautiful relationship. Bravo gentlemen and many, many heartfelt thanks.

    • There David goes again, links to his own prior work as a source in his new article. Where are TTAG’s editorial standards! 😉

  5. Good article, David, and it’s a pleasure to see you writing for TTAG. It’s hard to express how nice it is to read your reports without dealing with a flood of popups and with literally a score or more of hidden, third-party, security-threatening Java scripts and web bug trackers.

    • Like the fascist hand that feeds them, the ATF scoffs at the law and operates unimpeded in their trampling of Constitutional rights.

  6. ATF is pulling decisions out of it’s asterisk, and has refused to comply with freedom of information requests to show how it comes up with this stuff. It has failed to comply with laws to show this, and these legal eagles are, for once, making sure ATF doesn’t get away with acting above the law. All of this is good for us. Very good.

  7. Welcome David! … I am confounded by how much the BATFE manages to get away with year after year. More than the TSA, more than the IRS, more than any other government agency except for maybe the NSA, BATFE violates the rule of law, breaks the law, makes up law and generally gets away with it. No one ever seems to get fired, censured much less indicted and punished for the myriad of abuses. BATFE is a dangerous joke.

    • I agree with your assessment … and what makes you think that isn’t by design?

  8. Just so you don’t have to do the math, I did it for you… 300 cubic feet of paper is about 1,421,700 pages of secret ATF regulations, not available to the public, even after a FOIA request. And that was 10 years ago…

  9. most transparent administration eVaaa!…or not. I feel they’ll just pull a Holder and ignore it.

  10. Welcome David. Looking forward to reading your columns in this easier format.

    I missed a lot trying and failing in getting examiner to run properly.

    Does anyone know the breakdown as far as eyeballs goes? TTAG vs Examiner?

  11. So…what reason do we have to believe the ATF even possesses such documents? I thought the sole reason for their contradictory rulings was the number of various (and probably legally and mechanically untrained) interpreters in the field and the office pontificating.

  12. Just the entrance I would have expected from you, Mr. Codrea. You hit the ground running! Welcome aboard!

  13. This is nothing new. The 20 day response time is unreasonable. For most agencies, that time frame is complied with by sending an “initial processing” letter to the requester. It simply acknowledges the receipt of the request and assigns a tracking number thereto.

    I’ve got one on “Operation Statesboro Blues”, an ATF storefront operation in Statesboro, GA, that is now a year and a half old. My request was specifically on the operations and setup, and specifically stated I did not want any information on people targeted in the operation (which would be exempt under exemptions b6 and b7C). I submitted it in November of 2013. Now THAT is an unreasonable response time.

    Suing after 20 days only accomplishes three things. First, it moves your request to the front of the line. This usually includes court mandated deadlines. Second, it brings attention to it so that you can get PR for an article or your organization. There’s a reason why EFF, ACLU, and the AP love suing the government over FOIA requests. And lastly, it clogs up the system for people who have requests in that don’t have the time and resources to get a lawyer. When a judge orders the agency in question to respond within 30-60 days, it’s an all hand affair to get the information in, processed, and out the door. Delays can be met with penalties and increased payouts to lawyers representing the litigant. Yes. There’s money to be made in FOIA.

    • If they would scan and load the information with labels indexed into a database, the public could get their own information. They probably try to mess with filing cabinets because they don’t want people to have information.

  14. Congress just has to pass a law to find out what’s in it, we peasants have to file suit.

  15. Dave Hardy is a good guy and excellent lawyer. I am proud to call him a friend and colleague.

  16. Definitely a big score for TTAG having Mr. Codrea. As others have stated, a great first posting and I look forward to many more. Just think of how great it would be if David’s first posting here would be picked up by the mainstream media. You know, like a big 5 part investigative report on ATF run amuck. Reporters asking tough questions, a 60 Minutes expose………well one can dream.

  17. The
    B- Bad
    is just continuing to show the culture of lawlessnress, corruption and contempt they have for the American citizen and the constitution.

    They are what our founders warned would happen when people in government come to see themselves as masters instead of being public servants.

  18. This is lawyers trying to make money. FOIA requests can be denied if the entity requesting the document has no standing to request the document (think this applies) or if the requested documents cause harm to the organization (this also applies).
    The judge will probably throw it out or just request that the ATF send a formal letter denying the request.
    If you want these documents you need a subpoena

    • So how does asking for the rules, procedures and protocols that a government agency that they use to charge american citizens with a crime cause harm to that agency?

      Why would any American citizen need a subpoena to access such documents?

      These documents should on the ATF’s website where anyone can see if what they are doing with weapons is a crime, and by what criteria the ATF is using to determine such.

    • I suggest you look at the case law. All citizens (in fact non citizen residents) would have standing. And there is no harm.
      Please stop your endless incorrect claims here. The courts eventually ruled (unanimously) BATFE had to release the documents — so you are wrong on every count

  19. “…it’s difficult to fathom how the ATF can justify refusing to disclose its rules are to people they hold accountable for their compliance.”

    The administration as a whole has been encouraging and practicing disdain for the rule of law and the rights of citizens since day 1, the ATF is just following suit.

  20. +1k on David’s new place to contribute.

    Assuming Judge Howell elects to rule in favor of the plaintiffs and issues an order to the ATF, what then? If the ATF refuses to comply with Judge Howell’s ruling what can she do? For that matter, precisely what means does any judge have to COMPEL compliance with any ruling? So far as I can see, no judge anywhere has any sort of actual physical means to make anyone do anything. If some portion of the executive branch is willing to apply force in order to compel compliance with a directive from the judiciary, well and good. But absent such willing assistance the judiciary is as impotent to do anything as a teacup chihuahua yapping at a semi.

    • Yepper! Just like President Andrew Jackson telling the Supreme Court to ENFORCE their own rulings…

  21. They have repeatedly ignored my FOIA filings, but I don’t have the deep pockets to take them to court to compel them to answer. A “law enforcement” agency that routinely ignores any law that it doesn’t like…hmm sounds like a rogue element that should be disbanded and flushed down the sewer pipe of history.

  22. Great article! The ATF ought to be worried – now Codrea has a much larger audience to expose their crimes.

  23. There is no rule of law anymore. They probably won’t get the info. The atf will make up the rules as they go. A lot like now.

  24. “…it’s difficult to fathom how the ATF can justify refusing to disclose its rules are to people they hold accountable for their compliance.”

    Because….and Shut Up!

  25. So, I am required to obey the dictates of the BATF without knowing what these dictates are. (Betcha the BATF gets LOTS of noncompliance!!!)

    Makes PERFECT sense to me!

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