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| Robert Marcus, owner of Bob's Gun & Tackle in Norfolk, filed suit in U.S. District Court over a request by the Bureau of Alcohol, Tobacco and Firearms for records of the store's used gun sales. Mark Mitchell / The Virginian-Pilot |
Marcus, who owns the store and has worked there 32 years, understands that firearms sometimes fall into the hands of criminals. He said he wants to do his part to prevent gun-related crimes.
But when federal agents with the Bureau of Alcohol, Tobacco and Firearms asked him for records of the store's used gun sales, Marcus balked. Despite threats of criminal action and the loss of his license to sell guns, Marcus stood fast and refused.
When the ATF persisted, Marcus took the agency to court.
In a suit filed Nov. 23 in U.S. District Court, just a block from his shop, Marcus claims the government is trying to compile a database of gun owners, something Congress has strictly forbidden.
The bureau, however, says it is trying only to stop handgun violence and the illegal trafficking of firearms.
The case, which hinges on the privacy of gun owners and the Second Amendmentright to keep and bear arms, is certain to attract widespread attention in the long struggle between gun rights' advocates and those trying to prevent gun-related crimes.
Bob's Gun & Tackle Shop sold nearly 2,000 new and used firearms in 1999.
In February 2000, the ATF's National Tracing Center sent Bob's gun shop a letter demanding that the shop turn over the make, model, caliber and serial number of each used firearm bought and sold at the store in 1999.
For the first time, the federal government was collecting data on gun sales.
Bob's was among 430 firearms dealers -- out of 80,000 -- across the country to receive the letter. His shop and the other dealers were singled out because they had sold 10 or more guns that had been used in a crime within three years of purchase, according to ATF.
According to ATF, the average ``time-to-crime'' from when a gun leaves a retailer is six years.
``Research has demonstrated that a high volume of gun traces with a short `time-to-crime' may be an indicator of illegal firearms trafficking,'' the ATF letter said. The agency was not accusing Bob's of any wrongdoing but simply inquiring because Bob's had ``an unusually high number of traces,'' the letter said.
Marcus said it's not unusual for some guns sold at high-volume dealers to turn up at crime scenes. Ten guns, of the 1,986 he sold in 1999, traced to crimes is a small percentage -- about one-half of 1 percent, he said.
In the letter, the ATF did not give an exact number of weapons traced to Bob's or say what crimes they had been used in.
Records obtained by The Virginian-Pilot show that the ATF traced about 1,900 guns in the five South Hampton Roads cities in 1995, the last year records were available. Between 1990 and 1995, the ATF traced 114 firearms to Bob's. That's an average of 19 a year.
The records also show that 19 of the 114 guns were tied to violent crimes, including seven homicides. However, the records do not show whether the guns belonged to a victim or a suspect, or whether the trace led to criminal charges.
Licensed firearms dealers conduct instant criminal background checks on all gun buyers through a national computer system. Felons are prohibited from buying or possessing guns. Some cities, such as Norfolk, Chesapeake and Virginia Beach, require purchase permits, but those records generally are not used to trace a weapon, Marcus said.
ATF relies on gun dealers like Marcus to maintain records of all sales, which include the name and address of the buyer and the firearm's make, model and serial number. If a gun turns up in a crime, ATF can then trace the serial number from the manufacturer to the store to determine who purchased the weapon.
By collecting data from Marcus and other dealers, ATF said it hopes to speed up trace investigations.
The ATF letter to Marcus said the gun shop would face administrative or criminal sanctions, including the revocation of his dealer license, if he did not comply.
``While no one has accused me of committing a crime, they're going on a fishing expedition, and I'm not going fishing with them,'' Marcus said in a recent interview from his shop.
Marcus has not complied with the request and has not been sanctioned. Both sides have been waiting for a decision in a related federal court case.
In June, the U.S. 4th Circuit Court of Appeals in Richmond decided that a Baltimore firearms dealer must turn over to the ATF records of all new and used gun sales.
That case differs from Bob's because the Baltimore dealer failed to comply with ATF trace requests, a violation of federal law, according to the appeals court's decision. As a result, the ruling requires him to turn over his records.
Bob's has not been accused of breaking any laws. It is the only gun shop to sue, his lawyer said.
Marcus and his attorneys expect his case to reach the federal appeals court as well.
``The letter has no basis in law and demands the reporting of information which has no rational relationship to any bona fide criminal investigation or other legitimate law enforcement objective,'' Bob's lawsuit said.
In the Maryland case, the appeals court said that in limited instances, such as a dealer who violates the law, ATF can collect sales data without violating constitutional rights.
But in the carefully worded decision, the judges warned that federal law prohibits establishment of a national firearms registry. The law would become meaningless if ATF is allowed to issue ``limitless demand letters'' in ``a back door effort'' that could violate the rights of law-abiding gun owners, the court ruled.
``It is clear that Congress did not intend to give (ATF) carte blanche with regard to information requests from federal firearms licensees,'' the court said.
After the June ruling, ATF officials sent more letters to Bob's gun shop demanding the information.
ATF officials defended their position in an interview by citing a federal law that allows the agency to collect gun sales data as long as they don't create a prohibited database that includes names and addresses.
``We have to encourage some responsibility, and we feel we're within our rights, and the courts have agreed with us,'' said Jim Crandall, an ATF spokesman in Washington, adding that agency lawyers haven't seen the suit. ``It's not a condemnation of the manner or the way they conduct business.''
Advocates on one side of the issue see ATF's request as a strategic move in the fight against gun violence. Advocates on the other side view it as an infringement on the rights of law-abiding gun owners and dealers.
Gail C. Horne, executive director of Virginians Against Handgun Violence, said ATF's request is logical if it will reduce crime and gun violence.
``It only takes one death for it to become a common-sense issue,'' said Horne, of Norfolk, who was not aware of the lawsuit.
She said she ``struggles'' with the privacy issues involved with gun ownership and would not want to see law-abiding gun owners punished.
But ``if we're talking about responsible gun ownership and use, why do we care if somebody has our name? It seems to me the only time we care is if the use and ownership is not going to be responsible.''
Marcus sees the potential for abuse in ATF's attempt to collect gun sales data.
``We have nothing to gain by impeding the police and their work. But this goes entirely beyond that,'' he said.
``Fortunately, we live in a country where we can question the actions of the government,'' he said.