Local media continue their coverage of the BATF forcible entry raid that ultimately led to the death of Bryan Malinowski, a respected member of the Little Rock, Ark., community. Instead of picking up the Executive Director of the Little Rock Airport at work, the fine folks at F-Troop rolled up in 10 vehicles at oh-dark-thirty as if taking down a man who prayed at an abortion clinic a terrorist mastermind.
Mr. Malinowski came onto the radar of the Bureau of Alcohol, Tobacco, Firearms, Explosives (and really big Fires) because he enjoyed collecting firearms as a hobby. Part of collecting, of course, is selling specimens and Bryan Malinowski didn’t have a license to sell guns. Why didn’t Malinowski have a license? Probably because he followed the law and because he wasn’t in the “business” of selling firearms.
The South Arkansas Reckoning reprinted a statement and video from the attorneys of Malinowski’s family. ABC7 Little Rock had the videos on YouTube. We share both here.
Video released today from a neighbor’s camera shows agents arriving on March 19 in 10 separate vehicles. In a second recording from the Malinowski doorbell camera, you can see agents donning full tactical gear and holding automatic rifles in a ready position taping over the lens of the doorbell camera, which ended that video record.
Bryan Malinowski was the Executive Director of the Little Rock Airport. He was married for 25 years to his wife Maer Malinowski. They lived in West Little Rock. He enjoyed collecting coins and firearms. He was a pilot and held multiple ratings. He was a voracious reader.
As part of his hobby of collecting, buying and selling various items Bryan occasionally set up a table at local gun shows where he mainly displayed guns and coins. In Arkansas a private seller may legally sell a firearm without holding a federal firearm license (FFL) and without filling out forms or conducting background checks. A private seller may do so until such time they cross a subjectively defined barrier becoming “a person engaged in the business of selling firearms.” As stated, there is no bright line test. It is a subjective test. A citizen’s ability to sell firearms without a license is sometimes referred to as the “gun show loophole.”
There are compelling arguments for and against “closing the gun show loophole.” “Gun show loophole” bills have been introduced in Congress many times over the past 25 years, but none have passed. Last year, ATF proposed new regulations to effectively tighten the “loophole.”
According to the search warrant affidavit in this case, ATF suspected Bryan Malinowski of meeting at least parts of their subjective definition of a “person engaged in the business of selling firearms. Mr. Malinowski’s family and close friends don’t think he had any inkling ATF was concerned about his gun show sales. They are all confident that he would have never jeopardized his career in airport management by knowingly flaunting a regulation pertaining to his weekend hobby.
This appears to be the entirety of his suspected criminal activity—suspicion he had met subjective standards triggering the need to buy a $200 FFL therefore making subsequent sales illegal. He was suspected of being outside the “gun-show loophole.”
ATF surveilled Bryan for multiple days. They followed him in cars. They watched him at gun shows and even purchased firearms from him. They placed a tracking device on his vehicle, and then obtained a warrant to search his car and phone. They executed that warrant at 6:00 am on March 19, 45 minutes before first light and over one hour before sunrise.
At this stage there is no publicly available evidence showing whether agents knocked on the door or announced their presence, adequately identifying themselves. Bryan’s wife Maer only heard loud banging immediately followed by the crash of the front door being forced open. Absent exigent circumstances (danger of losing evidence-drugs down the toilet; propensity for violence or escape) case law requires law enforcement officers to give dwelling occupants a reasonable time to come to the door and let them in.
Bryan Malinowski was asleep but rose to the sound of the door crashing and located a firearm. His wife believed the noise must have been intruders and she fully believes her husband thought the same. He loaded a magazine into a pistol and emerged from the master bedroom into a hallway leading indirectly to the front entryway. He reached a corner in the hall and looked around it to see several unidentifiable figures already several steps inside his home.
We do not know who shot first but it appears that Bryan shot approximately three times at a decidedly low angle, probably at the feet of the intruders who were roughly 30 feet away.
Agents immediately returned fire and struck him at least once in the head, causing massive injury to his skull and brain. Mrs. Malinowski, in thin night clothes, was roughly taken out of the house in 34-degree weather and placed in custody in the back seat of a police car, prohibited from going to a neighbor’s home for clothes or to use the bathroom as many as four or five hours.
The Malinowski family believes the already known facts amply demonstrate ATF’s tactics on March 19 were reckless and incompetent, and completely unnecessary.
Criminal investigators should determine with precision whether the agents knocked, whether they announced their presence, identity, and purpose, and whether they waited a reasonable amount of time before they breached. The Malinowski home is almost 3000 square feet. It was 6am. Mr. Malinowski apparently had no idea he was under law enforcement scrutiny. The justification for the search involved suspicion of a crime carrying a puny 0–6-month U.S. Sentencing guideline range which typically results in a sentence of probation or more often probation ending with complete dismissal (pre-trial diversion).
After the Breonna Taylor shooting in 2020 under similar circumstances President Biden issued EO 14074 (5/25/2022) directing the implementation of certain policies including restriction on “no-knock” searches and requirements that federal agents utilize body-worn cameras (BWCs) when executing warrants.
Deputy Attorney General Monaco issued a memo on 6/7/2021 permitting the use of BWCs when federal agents execute search warrants and on 9/13/2021 she issued a separate memo regarding chokeholds and restricting the use of no-knock warrants.
On 6/2/2022 ATF issued policies mandating the use of BWCs during pre-planned execution of search warrants for all federal agents. The accompanying policy for Task Force Officers establishes a presumption of expedited release to the public of BWC recordings involve death “as soon as practical.”
In spite of requests to ATF on behalf of the Malinowski family, no BWC recordings have been released. ATF has made no public statement since the March 19 shooting of Bryan Malinowski though it wouldn’t be unusual for ATF to convene a press conference to put the public at ease and explain what happened and why it was necessary.
Most of what we know comes from the affidavit in the search warrant application. A reminder: only convictions establish guilt. Even indictments are mere unrebutted accusations. An affidavit is even less. It is a statement of suspicion which quite often turns out to be inaccurate or incomplete. It would be grossly improper for anyone to suggest any U.S. citizen guilty of any crime based only on the contents of an affidavit in a warrant application. Even so, in the search warrant affidavit Bryan Malinowski is never accused of knowingly selling any gun to anyone he shouldn’t have. It only suggests he (perhaps unknowingly) crossed a subjective line which put him in a different class of weekend gun seller and obligated him to buy a $200 FFL license. A malum prohibitum offense.
“Malum prohibitum” is an act that is not inherently immoral but is prohibited by statute. Common examples of malum prohibitum actions include jaywalking and regulatory violations.
The evidence available to the public surely doesn’t portray the BATFE (and really big Fires) in a positive light. They don’t even have allegations that he sawed off the barrel of a shotgun a quarter-inch too short to hang their hats on for the heavy-handed assault on his house.
And they wonder why so many think so little of their agency’s reputation. But then again, when you have an half-wit appointed as director by President Puddin’ Brains, we shouldn’t expect much more. Moreover, no one makes a stronger case for abolishing the BATF than the BATF itself.