SUYDAM v. ALCOHOL TOBACCO FIREARMS AND EXPLOSIVES, US BUREAU
Filing
24
ORDER granting 9 Motion for Summary Judgment By JUDGE JOHN A. WOODCOCK, JR. (jgw)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
RICHARD SUYDAM,
Plaintiff,
v.
UNITED STATES BUREAU OF
ALCOHOL, TOBACCO, FIREARMS
AND EXPLOSIVES,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
2:11-cv-00055-JAW
ORDER ON MOTION FOR SUMMARY JUDGMENT
The Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) seeks summary
judgment against Richard Suydam, a federally licensed firearms dealer, upholding its
revocation of Mr. Suydam’s license for his willful violation of the record-keeping
requirements of federal firearms regulations.
The Court concludes that the ATF’s
revocation was authorized and summary judgment for the ATF is appropriate.
I.
PROCEDURAL AND FACTUAL BACKGROUND
A.
Procedural History
On February 11, 2011, Richard Suydam filed a complaint seeking de novo
judicial review, pursuant to 18 U.S.C. § 923(f)(3), of the ATF’s revocation of his
federal firearms license. Compl. (Docket # 1). The ATF answered on May 4, 2011.
Answer (Docket # 7).
On June 17, 2011, the ATF moved for summary judgment and filed a
statement of material facts. Def.’s Mot. for Summ. J. (Docket # 9) (Def.’s Mot,);
Def.’s Statement of Undisputed Material Facts in Support of Def.’s Mot. for Summ.
J. (Docket # 10) (DSMF). Mr. Suydam filed his opposition on June 30, 2011, along
with a response to the ATF’s statement of facts and a set of additional facts. Pl.’s
Mem. of Law in Opp’n to Def.’s Mot. for Summ. J. (Docket # 14) (Pl.’s Opp’n); Pl.’s
Opposing Statement of Material Facts (Docket # 15) (PRDSMF, PSAMF). The ATF
filed its response to Mr. Suydam’s opposition and a reply statement of facts on July
14, 2011. Def.’s Reply Mem. in Support of Mot. for Summ. J. (Docket # 17) (Def.’s
Reply); Def.’s Reply Statement of Material Facts (Docket # 18) (DRPSAMF).
Upon Mr. Suydam’s motion, the Court held oral argument on the ATF’s
motion for summary judgment on February 17, 2012.
B.
Statement of Facts1
1.
Background
Richard E. Suydam has held ATF Importer’s Federal Firearms License (FFL)
No. 6-01-017-08-3D-33134 since 1987.
DSMF ¶¶ 1, 3; PRDSMF ¶¶ 1, 3.
The
Veterans Administration has determined Mr. Suydam to be 70% disabled and the
Social Security Administration has determined him 100% disabled. PSAMF ¶ 12;
DRPSAMF ¶ 12. He is an insulin-dependent diabetic; prolonged physical exertion
can cause a rapid decrease in blood sugar, resulting in a diabetic coma, which has
happened to Mr. Suydam on several occasions. PSAMF ¶ 13; DRPSAMF ¶ 13. Mr.
Suydam also suffers from military service-related back and knee injuries, making it
difficult to walk up and down stairs, to bend over, to lift objects, or to get down on
1 In accordance with “conventional summary judgment praxis,” the Court recounts the facts in the
light most favorable to Mr. Suydam’s theory of the case, consistent with record support. Gillen v.
Fallon Ambulance Serv., Inc., 283 F.3d 11, 17 (1st Cir. 2002).
2
his knees, and he suffers from severe chronic back spasms.
PSAMF ¶ 14;
DRPSAMF ¶ 14. He has a chronic left shoulder impingement problem that limits
his ability to reach for and pick up things. PSAMF ¶ 15; DRPSAMF ¶ 15.
Mr.
Suydam also has a blood pressure problem, which periodically causes him to pass
out. PSAMF ¶ 16; DRPSAMF ¶ 16. He has arthritis in his spine and feet, which
makes it difficult for him to walk, bend over, and lift objects.
PSAMF ¶ 17;
DRPSAMF ¶ 17. Mr. Suydam also suffers from two mental conditions, attention
deficit and hyperactivity disorder and obsessive compulsive disorder, that make it
extremely difficult for him to focus and stay on task. PSAMF ¶ 18; DRPSAMF ¶ 18.
2.
The 2008 Inspection and Warnings
On September 9, 2008, Industry Operations Investigator (IOI) Adrienne
Brown inspected Mr. Suydam’s business for compliance with the requirements of
the Gun Control Act (GCA) and related federal firearms regulations. DSMF ¶ 4;
PRDSMF ¶ 4. During the inspection, IOI Brown asked to review Mr. Suydam’s
Acquisition and Disposition Records (A&D Book). DSMF ¶ 6; PRDSMF ¶ 6. Mr.
Suydam produced an A&D Book for the period from 2002 to the date of the
inspection but was unable to produce an A&D Book for the period from 1989 to
2002. DSMF ¶¶ 7-8; PRDSMF ¶¶ 7-8.
During the inspection, IOI Brown reviewed with Mr. Suydam the GCA’s
federal firearms regulations with which Mr. Suydam was required to comply.
DSMF ¶ 9; PRDSMF ¶ 9. This review included the requirement that all federal
firearms licensees maintain an A&D Book, pursuant to 27 C.F.R. § 478.125(e), and
3
maintain their records for no less than twenty years, pursuant to 27 C.F.R. §
478.129.
DSMF ¶¶ 11-12; PRDSMF ¶¶ 11-12.
During this review, IOI Brown
completed and Mr. Suydam signed an Acknowledgement of Federal Firearms
Regulations checklist, listing each regulation IOI Brown and Mr. Suydam had
reviewed. DSMF ¶ 10; PRDSMF ¶ 10.
Following the September 9, 2008 inspection, IOI Brown completed a Report of
Violations (ROV), setting forth the violations of the federal firearms regulations she
said she discovered by her inspection.2 DSMF ¶ 13; PRDSMF ¶ 13. The ATF cited
2
ATF’s statement of material fact paragraph 13 states:
Following the September 9, 2008 inspection and review of regulations, IOI Brown completed
a Report of Violation (ROV) for Suydam, setting forth his violations of the Federal Firearms
Regulations, as discovered during the September 9, 2008 inspection.
DSMF ¶ 13. In support of this statement, ATF cites Exhibit C to Exhibit B of S. Roy Chabra’s
declaration. DSMF ¶ 13, Attach. 1, Decl. of S. Roy Chabra, Ex. B (Docket # 10), Attach. 3, Ex. B, Tr.
of Oct. 6, 2010 Hr’g 21, Ex. C., Report of Violations (Sept. 22, 2008). The attached exhibit is entitled
“Report of Violations” and sets forth two violations arising from the September 4, 9, and 22, 2008
inspections. Id. The Report of Violations has what appears to be Mr. Suydam’s signature.
Mr. Suydam interposed a qualified objection to paragraph 13:
The ROV set forth the alleged violations. For the reasons stated in response to alleged fact #
7, the Plaintiff does not agree that his failure to have his old A&D book, for guns acquired
prior to 2002, was a violation of the regulations.
PRDSMF ¶ 13. For support, Mr. Suydam cites paragraph 8 of his affidavit, which reads:
Because I did not have my A&D Book for guns I had acquired prior to 2002 for reasons that
were totally beyond my control, I do not believe that I was in violation of the ATF regulations
for failing to be able to produce that book on September 9, 2008.
Id. Attach. 1, Aff. of Richard Suydam ¶ 8 (Docket # 15). The “reasons stated in response to alleged
fact # 7” are:
The Plaintiff told the Defendant several times prior to 9/9/08 that his former girlfriend had
his A&D Book, and was refusing to return it to him. The Defendant told him to start a new
book. The Plaintiff also asked the Defendant several times prior to 9/9/08 to help him
retrieve the book from her, but the Defendant’s agents told him that they would only get the
book from her if he first gave up his Importer’s license. He told the Defendant that he was
not willing to give up his license; so the Defendant was well aware on 9/9/08 that he did not
have his A&D Book for the period from 1998 to 2002.
PRDSMF ¶ 7. Although the Court notes Mr. Suydam’s qualified response and has altered the ATF
statement to reflect that these are violations the ATF asserted, whether Mr. Suydam actually
violated ATF regulations in 2008 is not before the Court. ATF points to the 2008 inspection and the
4
Mr. Suydam for two violations: 1) failure to record the acquisition of a firearm not
later than 15 days after the date of importation or other acquisition, and 2) failure
to retain an A&D Book from 1989 to 2002 for the disposition of firearms to federal
firearms licensees. DSMF ¶¶ 14-15; PRDSMF ¶¶ 14-15. On September 22, 2008,
IOI Brown returned and provided the ROV to Mr. Suydam; the two reviewed the
violations and discussed the steps Mr. Suydam should take to ensure Mr. Suydam’s
future compliance. DSMF ¶ 16; PRDSMF ¶ 16. During this meeting, both IOI
Brown and Mr. Suydam signed the ROV. DSMF ¶ 17; PRDSMF ¶ 17.
On February 5, 2009, IOI Brown and Chris S. Turett, Area Supervisor,
Boston Area Office, ATF, held a warning conference with Mr. Suydam. DSMF ¶ 18;
PRDSMF ¶ 18. Supervisor Turett and IOI Brown discussed with Mr. Suydam his
violations, as set forth in the ROV, and the importance of complying with federal
firearms regulations, especially the importance of maintaining an A&D Book and
having it available for review by the ATF. DSMF ¶ 19; PRDSMF ¶ 19. At the
conference, Mr. Suydam stated that he understood the regulations requiring proper
maintenance of an A&D Book and the importance of compliance with these
regulations.
DSMF ¶ 20; PRDSMF ¶ 20.
The next day, on February 6, 2009,
Supervisor Turett sent a follow-up letter to Mr. Suydam via certified mail, which
Mr. Suydam received and signed for. DSMF ¶ 21; PRDSMF ¶ 21. The letter set
forth the ATF’s understanding of the discussions at the warning conference. DSMF
ROV to support its contention that Mr. Suydam was aware of the ATF record-keeping regulations
and the importance of compliance. Mr. Suydam admits that he reviewed the September 22, 2008
violations with ATF agents and received multiple explanations and warnings after the 2008
inspection. PRDSMF ¶¶ 9-12, 16-19, 21, 23-24.
5
¶ 22; PRDSMF ¶ 22. The letter also reminded Mr. Suydam that “future violations,
repeat or otherwise, could be viewed as willful and may result in the revocation of
[his] license” and that he could “anticipate further inspections to ensure [his]
compliance.” DSMF ¶¶ 23-24; PRDSMF ¶¶ 23-24.
3.
The A&D Book Variance
On July 12, 2009, Mr. Suydam requested a variance from the ATF concerning
the keeping of an A&D Book.3 DSMF ¶ 25; PRDSMF ¶ 25. The ATF granted the
requested variance on September 14, 2009, allowing Mr. Suydam to combine his
acquisition and distribution records into one A&D Book, but the ATF listed certain
conditions, including reiterating the requirement that the A&D Book be maintained
separate from other records and be made available to the ATF upon request. DSMF
¶ 27; PRDSMF ¶ 27. Mr. Suydam states that he was unsure whether the variance
was granted and so continued to maintain two separate A&D Books, one for
importation and one for curios and relics. PRDSMF ¶ 27.
While the variance
request was one commonly sought from federal firearms licensees and commonly
granted by the ATF, it did not allow for any other deviations from federal firearms
regulations. DSMF ¶¶ 28-29; PRDSMF ¶¶ 28-29.
3 The parties disagree as to the exact variance requested; the ATF says he requested a variance to
combine three separate A&D Books into one, DSMF ¶ 26; Mr. Suydam says he requested a variance
to combine two separate books, one for “Imported for Resale” guns and one for “his own, personal
not-for-resale ‘Curios and Relics.’” PRDSMF ¶ 26. The exact contours of the variance are
immaterial, because both parties agree that the variance did not allow Mr. Suydam to fail to keep
A&D Books altogether and did not excuse him from presenting those records to the ATF for
inspection. DSMF ¶¶ 27-29; PRDSMF ¶¶ 27-29.
6
4.
The 2002-2009 A&D Book Goes Missing
In mid to late November of 2009, Mr. Suydam realized his A&D Book was
missing.
PSAMF ¶ 1; DRPSAMF ¶ 1.
Mr. Suydam assumed workers had
inadvertently moved the book into his second floor storage room (without Mr.
Suydam’s knowledge or permission) when they were moving some other books in his
home. PSAMF ¶ 2; DRPSAMF ¶ 2.
The second floor storage room is approximately 12 feet long and 9 feet wide.
PSAMF ¶ 3; DRPSAMF ¶ 3. The room held at least 5,000 books at the time the
2002 A&D Book went missing.4 PSAMF ¶ 4; DRPSAMF ¶ 4. These books were
stacked chest high, with one “huge” stack about seven feet long and five feet wide in
the middle of the room, and numerous stacks a few feet long and about 2 feet wide
all around the perimeter of the room; there was not enough space for Mr. Suydam to
walk between the stacks of books. PSAMF ¶ 5; DRPSAMF ¶ 5. While moving
books from the first floor of Mr. Suydam’s home to the second floor storage room,
the workers rearranged and restacked the books in the room; Mr. Suydam knew
that if the workers had moved the A&D Book into that room it could be anywhere,
including in the middle of one of the stacks. PSAMF ¶ 6; DRPSAMF ¶ 6.
4 In his statement of additional facts, Mr. Suydam asserts that the room held over 5,000 books, to
which the ATF objects. PSAMF ¶ 4; DRPSAMF ¶ 4. During his sworn testimony at the revocation
hearing, Mr. Suydam testified that the room held “a 4,000-book collection.” DSMF Attach. 1 Chabra
Decl. Ex. B (Revocation Tr.) at 61. Even though Mr. Suydam appears to have contradicted himself
on the exact number of books, the Court accepts his current version. Even so, the exact number is
not material. The point is that there was a very large collection of books in the small storage room.
7
Mr. Suydam asserts that upon realizing the book was missing, he notified the
ATF and an agent told him to start a new book until he found the missing one.5
PRDSMF ¶ 33; PSAMF ¶ 1; DRPSAMF ¶ 1.
Despite the agent’s advice, Mr.
Suydam remained very concerned and knew he had to find the book as soon as
possible. PSAMF ¶ 1; DRPSAMF ¶ 1.
After realizing the book was missing, Mr. Suydam scanned the stacks of
books in the storage room, making a visual search for the red A&D Book, but he did
not see the book. PSAMF ¶¶ 7-9; DRPSAMF ¶¶ 7-9. Mr. Suydam assumed that
book was in the middle of one of the stacks of books or otherwise obstructed from
view. PSAMF ¶ 9; DRPSAMF ¶ 9.
Because of his physical limitations and numerous medical conditions, Mr.
Suydam believed that he could not conduct an extensive search for the missing
A&D Book himself.6 PSAMF ¶ 19; DRPSAMF ¶ 19. Because of his blood pressure
condition, he did not want to risk passing out in the storage room.7 PSAMF ¶ 16;
DRPSAMF ¶ 16. Mr. Suydam lived alone and did not have anyone readily available
to help him with things around the house. PSAMF ¶ 20; DRPSAMF ¶ 20. The
5 The ATF qualifies its response to this statement, noting that Mr. Suydam is unable to identify the
agent who told him to start a new book and that his estoppel claim is inconsistent. DRPSAMF ¶ 1.
The Court accepts Mr. Suydam’s version for purposes of this motion.
The ATF objects to the statement that Mr. Suydam was unable to make an extensive search for the
missing book on his own on two grounds: first, that no admissible evidence nor expert testimony has
been admitted supporting Mr. Suydam’s claim, and second, that Mr. Suydam testified to the contrary
at the administrative hearing. DRPSAMF ¶ 11. Specifically, the ATF points out that Mr. Suydam
testified that searching for the book himself would be “not pleasant” but not impossible. DRPSAMF
¶ 11 (citing Revocation Tr. at 55). The Court accepts Mr. Suydam’s version.
6
7 The ATF qualifies its response to this statement, claiming that Mr. Suydam’s fears of passing out
and dying in the storage room were unfounded and that, in fact, the storage room was one of the
safer rooms in his house because it had a telephone Mr. Suydam could use to call for help in the
event of an emergency. DRPSAMF ¶ 16. The Court accepts Mr. Suydam’s version for purposes of
this motion.
8
workers Mr. Suydam had hired to move his books into the second floor storage room
had moved out of state and were not around to assist him in searching for the book.
PSAMF ¶ 21; DRPSAMF ¶ 21. Mr. Suydam knew very few people in the area
where he lived and the people he knew were either unavailable to spend days or
weeks looking for the book or were not people he trusted to have in his home.8
PSAMF ¶ 22; DRPSAMF ¶ 22. Mr. Suydam did not get out of his house often
during the winter of 2009 and was not able to look in earnest for someone to hire to
search for the misplaced A&D Book until the spring. PSAMF ¶ 23; DRPSAMF ¶ 23.
Mr. Suydam asserts that he was not indifferent to finding the book between
the time it went missing in late November of 2009 and the March 3, 2010
inspection,9 but rather was “very concerned” and “tried his best to find the book.”
PSAMF ¶¶ 24-25; DRPSAMF ¶¶ 24-25. During this time, he was “physically and
The ATF objects to paragraph 22 of Mr. Suydam’s statement of additional facts, arguing that it
contradicts Mr. Suydam’s testimony at the revocation hearing and citing Thore v. Howe, 466 F.3d
173, 186 n.7 (1st Cir. 2006), for the proposition that a party may not defeat summary judgment by
filing an affidavit that contradicts previous clear and unambiguous testimony. DRPSAMF ¶ 22. Mr.
Suydam testified at the revocation hearing that he had at least one “very good friend” in the area,
“Father Beegan,” who had a key to his house and with whom he went shopping. Revocation Tr. at
63:2-15.
8
The testimony and the affidavit are not flatly contradictory. First, as to his assertion that he knew
very few people in the area, there is no contradiction at all. Second, as to his friendship with Father
Beegan, there is no evidence that Father Beegan would have been available to spend days or weeks
looking for the book. Compare Revocation Tr. at 63:2-15 with PSAMF ¶ 22. The Court overrules the
ATF’s objection to paragraph 22.
The ATF also objects to Mr. Suydam’s statement that none of his friends was available to “spend
several days or weeks looking for the book,” on the grounds that when someone finally began to look
for the book in August of 2010 it was found, by Mr. Suydam’s admission, after only one day of
searching. DRPSAMF ¶ 22; DSMF ¶ 46; PRDSMF ¶ 46. Because, prior to finding the book, no one
could have known how long the search would take, the Court adopts Mr. Suydam’s version for
purposes of this motion.
9 The ATF denies this statement, arguing that Mr. Suydam’s indifference to his record-keeping
requirements is a legal conclusion and “not proper for a statement of facts.” DRPSAMF ¶ 24. The
Court disagrees and it includes the statement as a fact, not a legal conclusion.
9
medically unable to conduct an extensive search for the book himself” and was
“unable to find anyone else available or that he trusted” to search for it prior to
March 3, 2010.10 PSAMF ¶ 26; DRPSAMF ¶ 26.
5.
The 2010 Inspection and Violations
On March 3, 2010, ATF agents IOI Matthew Gagne and IOI Nicholas O’Leary
conducted an inspection of Mr. Suydam’s premises. DSMF ¶ 30; PRDSMF ¶ 30.
During this inspection, IOI Gagne requested to review Mr. Suydam’s A&D Book.
DSMF ¶ 31; PRDSMF ¶ 31. IOI Gagne had read IOI Brown’s report and knew Mr.
Suydam would not have his A&D Book for the period before 2002. DSMF ¶¶ 32-33;
PRDSMF ¶¶ 32-33.11
At the inspection, Mr. Suydam produced an A&D Book for the period from
November 30, 2009 to March 3, 2010, the date of inspection. DSMF ¶ 34; PRDSMF
¶ 34. The first page of the A&D Book stated “This Ledger import/dealer ’08, was
opened on November 30th, 2009 as of 13:00 as a replacement of the original
lost/misplaced item.” DSMF ¶ 35; PRDSMF ¶ 35. IOI Gagne asked Mr. Suydam to
10 The ATF objects to this statement, claiming that Mr. Suydam’s medical or physical abilities
constitute an impermissible expert conclusion by a lay witness and that he provides no foundation
for the conclusion that he was medically unable to search for the book himself. DRPSAMF ¶ 26. The
objection is overruled.
The ATF also objects to Mr. Suydam’s statement that he was unable to find anyone he trusted to
search for the book, claiming it contradicts his testimony at the license revocation hearing, again
citing Thore v. Howe, 466 F.3d at 186 n.7. DRPSAMF ¶ 26. For the reasons stated in footnote 8,
supra, the Court overrules this objection and adopts Mr. Suydam’s version.
11 The ATF says that IOI Gagne expected Mr. Suydam to produce a complete A&D Book from 2002
particularly given the 2008 and 2009 warnings regarding his A&D Book obligations. DSMF ¶ 33.
However, Mr. Suydam denied this statement, noting that he had contacted the ATF, had told an
agent about the lost book, and had been told to begin a new one until he found the missing book.
PRDSMF ¶ 33. Mr. Suydam’s denial is questionable because it assumes that IOI Gagne knew or
should have known about his conversation with another agent. Nevertheless, under the summary
judgment praxis, the Court accepts Mr. Suydam’s version.
10
provide his A&D Book for the period before November 30, 2009, at which point Mr.
Suydam admitted that he had lost the book at some point before November 30, 2009
and was unable to produce it. DSMF ¶¶ 36-37; PRDSMF ¶¶ 36-37. Mr. Suydam
told the ATF investigators that he had hired some individuals to move various
books from the first floor of his home to a room on the second floor and that, because
he usually kept the A&D Book on the first floor, he assumed his A&D Book had
likely been moved along with the other books to that second floor storage room.
DSMF ¶¶ 38-39; PRDSMF ¶¶ 38-39.
Mr. Suydam admitted to the ATF
investigators that after the movers left, he had been unable to find his A&D Book
and had concluded that it had likely been moved with the rest of his books, even
though he had not intended for that to occur. DSMF ¶ 40; PRDSMF ¶ 40.
IOI Gagne asked Mr. Suydam if he had searched for the lost A&D Book.
DSMF ¶ 42; PRDSMF ¶ 42. Despite believing that the book was likely in his second
floor storage room, Mr. Suydam admitted that he had only made a “cursory search”
but it was not in plain sight so he was unable to find it.12 DSMF ¶ 41; PRDSMF ¶
41. Mr. Suydam told the investigators that finding the book in the storage room
would take a great deal of time and physical effort, and that he was “physically and
medically unable” to make an extensive search for the book himself.13 PRDSMF ¶
12 The parties present slightly different descriptions of Mr. Suydam’s search for the 2002-2009 A&D
Book. While the ATF posits that Mr. Suydam “declined to mount an extensive search for the book,”
DSMF ¶ 41, Mr. Suydam denies this fact, instead asserting that he told the investigators that he had
made a “cursory search for the book in the second floor storage room, but it was not in plain sight . . .
so he was unable to find it,” PRDSMF ¶ 41. The Court does not view these statements as
inconsistent; a “cursory search” is, by definition, something less than an “extensive” one. However, it
accepts Mr. Suydam’s adjective for purposes of the motion.
The ATF objects to the statement that Mr. Suydam was physically and medically unable to make
an extensive search for the missing book on his own on two grounds: first, that no admissible
13
11
41; PSAMF ¶¶ 10-11, 19, 26. He also told them that the A&D Book was “hiding”
somewhere else. DSMF ¶ 41; PRDSMF ¶ 41. In August 2010, five months after the
March 3rd inspection, Mr. Suydam hired a man to search for the A&D Book. DSMF
¶ 45; PRDSMF ¶ 45. The book was found in the second floor storage room after one
day of searching. DSMF ¶ 46; PRDSMF ¶ 46.
6.
The 2010 License Revocation
On July 8, 2010, the ATF issued a Notice of Revocation of License to Licensee
to Mr. Suydam via Certified Mail, but the letter was not signed for and was
returned to the ATF undelivered. DSMF ¶¶ 50-51; PRDSMF ¶¶ 50-51. On July 20,
1010, the ATF issued a second Notice of Revocation of License to Licensee, which
was hand-delivered to Mr. Suydam by IOI Gagne. DSMF ¶¶ 52-53; PRDSMF ¶¶
52-53.
During the administrative hearing on Mr. Suydam’s FFL revocation, Mr.
Suydam testified that he understood that federal firearms regulations required him
to maintain an A&D Book at all times, and that the purpose of maintaining such
records was to be prepared to provide them to the ATF upon request. DSMF ¶¶ 4748; PRDSMF ¶¶ 47-48.
Mr. Suydam also testified that he knew it was his
responsibility to maintain an A&D Book and to have it ready for inspection by the
ATF:
evidence nor expert testimony has been admitted supporting Mr. Suydam’s claim that he was
medically unable to search for the book in his home, and second, that Mr. Suydam testified to the
contrary at the administrative hearing. DRPSAMF ¶ 11. Specifically, the ATF points out that Mr.
Suydam testified that searching for the book himself would be “not pleasant” but not impossible.
DRPSAMF ¶ 11 (citing Revocation Tr. at 55). The Court accepts Mr. Suydam’s statement for
purposes of the pending motion.
12
Q: Did you understand the ATF rules and regulations that you were to
maintain an A&D Book?
A: Of course.
Q: Okay. Did you understand that requirement to mean that you had
to have that book ready to show them at a moment’s notice if an
inspector showed up?
A: That is what I . . . that’s the purpose of having an A&D Book . . . .
DSMF ¶ 49; PRDSMF ¶ 49; DSMF Attach. 1 Chabra Decl. Ex. B (Revocation Tr.) at
61.
C.
The Parties’ Positions
1.
The ATF’s Motion for Summary Judgment
The ATF argues that Mr. Suydam’s petition for de novo review of its
revocation of his federal firearms license must fail as a matter of law. Def.’s Mot. at
1.
The ATF states that revocation of the license was authorized because the
undisputed evidence at the license revocation hearing clearly showed that Mr.
Suydam knew and understood the record-keeping requirements of the Gun Control
Act and failed to comply with them. Id. at 1, 18. The ATF argues that Mr. Suydam
repeatedly violated the record-keeping requirements of his FFL despite multiple
explanations of those requirements and warnings that future non-compliance could
result in the revocation of his license. Id. at 13-14. The ATF further maintains that
Mr. Suydam’s lack of effort to locate the records he knew to be misplaced within his
own home for more than eight months demonstrates purposeful disregard of or
plain indifference to the record-keeping requirements of federal firearms license
13
holders and establishes a willful violation authorizing the revocation of his license.
Id. at 2; 14-16.
2.
Mr. Suydam’s Opposition
Mr. Suydam opposes the ATF’s motion for summary judgment, arguing that
the disappearance of his second A&D Book (containing transactions from 2002
through November 2009) is not grounds for license revocation because it was not a
willful violation. Pl.’s Opp’n at 10-11. Mr. Suydam denies that he was plainly
indifferent to or that he recklessly disregarded federal firearms regulations and, in
fact, he “cared very deeply about his legal responsibilities,” but was physically and
medically unable to search for the misplaced record book on his own. Id. at 3-5, 10.
He asserts that it would have taken “many hours, and perhaps even days or weeks,
and a lot of physical effort to look through all of the stacks of books to find that one,”
and that he was unable to hire outside help whom he trusted until August of 2010.
Id. at 4.
3.
The ATF’s Reply
In reply, the ATF reiterates that Mr. Suydam admits he knew and
understood the record-keeping requirements of the GCA and federal firearms
regulations and that he admits to violating those requirements after multiple ATF
explanations and warnings about properly maintaining his firearm transaction
records and having them available for ATF inspection. Def.’s Reply at 1. The ATF
argues that Mr. Suydam’s sole defense—that he suffers from various mental and
physical impairments—has been unanimously rejected as a defense to willful
14
federal firearms violations.
Id. at 1, 3-6.
The ATF further contends that the
evidence clearly shows that Mr. Suydam’s inability to provide his 2002-2009 A&D
Book to ATF agents at the March 3, 2009 inspection was not “inadvertent,” but
rather that “he knew he was required to locate his lost A&D Book, but for many
months took functionally no steps to locate it and comply with federal law.” Id. at 3.
II.
LEGAL STANDARDS
A.
Summary Judgment
“Notwithstanding the posture of this case as an appeal of an administrative
decision, the summary judgment standard is the same as in any other civil action.”
Gilbert v. Bangs, No. 10-cv-1440-AW, 2011 U.S. Dist. LEXIS 93774, at *9 (D. Md.
Aug. 22, 2011). Summary judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(a). A fact is material where “its existence or
nonexistence has the potential to change the outcome of the suit.” Tropigas de
Puerto Rico, Inc. v. Certain Underwriters at Lloyd’s of London., 637 F.3d 53, 56 (1st
Cir. 2011) (citing McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995)).
An issue is genuine where “a reasonable jury could resolve the point in favor of the
nonmoving party.” Tropigas, 637 F.3d at 56 (quoting McCarthy, 56 F.3d at 315). In
deciding a motion for summary judgment, the Court “views the facts and draws all
reasonable inferences in favor of the nonmoving party,” Ophthalmic Surgeons, Ltd.
v. Paychex, Inc., 632 F.3d 31, 35 (1st Cir. 2011), while “ignoring conclusory
allegations, improbable inferences, and unsupported speculation,” Chiang v. Verizon
15
New England Inc., 595 F.3d 26, 30 (1st Cir. 2010) (quoting Sutliffe v. Epping Sch.
Dist., 584 F.3d 314, 325 (1st Cir.2009)).
The initial burden is on the moving party to show that there exists an
absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986). If the moving party meets this initial burden, then the non-moving
party must set forth specific facts showing that there is a genuine issue for trial in
order to defeat the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986).
B.
District Court Review of FFL Revocation
The standard for judicial review of an FFL revocation is found in 18 U.S.C.
§ 923(f)(3):
The aggrieved party may at any time within sixty days after the date
notice was given under this paragraph file a petition with the United
States district court for the district in which he resides or has his
principal place of business for a de novo judicial review of such denial
or revocation. In a proceeding conducted under this subsection, the
court may consider any evidence submitted by the parties to the
proceeding whether or not such evidence was considered at the hearing
held under paragraph (2). If the court decides that the Attorney
General was not authorized to deny the application or to revoke the
license, the court shall order the Attorney General to take such action
as may be necessary to comply with the judgment of the court.
Id.
C.
De Novo Review of Whether Revocation Was Authorized Based
on Willful Violation
Because the First Circuit has not addressed the license revocation portions of
the GCA and relevant regulations, the Court is guided by the text of the statute and
regulations and by other circuit analysis of the issue. In general, although the law
16
provides for a de novo review, the statute makes it clear that the focus of that
review is narrow: whether the Attorney General was “authorized” to revoke the
license. 18 U.S.C. § 923(f)(3).
1.
De Novo Review
“Under the de novo standard of review for a decision of the ATF, the district
court may give the agency’s finding and decision such weight as it believes they
deserve, but need not accord any particular deference to those findings.” Gilbert,
2011 U.S. Dist. LEXIS 93774, at *8-9 (internal quotation marks omitted); see also
Stein’s, Inc. v. Blumenthal, 649 F.2d 463, 467 (7th Cir. 1980); Article II Gun Shop,
Inc. v. Ashcroft, No. 03-C-4598, 2005 U.S. Dist. LEXIS 18873, at *9 (N.D. Ill. Mar.
25, 2005). In other words, the decision under review “is not necessarily clothed with
any presumption of correctness or other advantage.” Stein’s, 649 F.3d at 466-67. A
court “can receive and consider evidence in addition to that submitted in the
administrative proceeding,” Gilbert, 2011 U.S. Dist. LEXIS 93774, at *9, “when
some good reason to do so either appears in the administrative record or is
presented by the party petitioning for judicial review.” Shawano Gun & Loan, LLC
v. Hughes, 650 F.3d 1070, 1076 (7th Cir. 2011) (quoting Stein’s, 649 F.3d at 466). At
the same time, a district court may rule without holding an evidentiary hearing.
Cucchiara v. Sec’y of Treasury, 652 F.2d 28, 30 (9th Cir. 1981).
2.
Authorized
By confining a court’s inquiry to whether the Attorney General’s decision was
“authorized,” § 923(f)(3) “does not call upon this Court to decide whether it would
17
revoke the license in its own judgment, but whether all of the evidence presented is
sufficient to justify the Attorney General’s revocation of the license.” Morgan v.
U.S. Dep’t of Justice, 473 F. Supp. 2d 756, 762 (E.D. Mich. 2007) (quoting Pinion
Enters., Inc. v. Ashcroft, 371 F. Supp. 2d 1311, 1315 (N.D. Ala. 2005)); see also
Procaccio v. Lambert, No. 5:05-MC-0083, 2006 U.S. Dist. LEXIS 50748, at *6-7
(N.D. Ohio Jul. 25, 2006) (“the Court considers whether the Attorney General’s
revocation was authorized, not whether this Court would make the same decision if
originally presented with the issue”); Armalite, Inc. v. Lambert, 544 F.3d 644, 650
(6th Cir. 2008); Article II Gun Shop, Inc. v. Gonzalez, 441 F.3d 492, 494 (7th Cir.
2006); Perri v. Dep’t of Treasury, 637 F.2d 1332, 1335 (9th Cir. 1981); Lewin v.
Blumenthal, 590 F.2d 268, 269 (8th Cir. 1979); Prino v. Simon, 606 F.2d 449, 450
(4th Cir. 1979).
3.
Willful
The ATF is authorized to “revoke any license issued under [the GCA] if the
holder of such license has willfully violated” any provision of the GCA or related
regulations.
18 U.S.C. § 923(e).
“Willful,” in this context, does not require a
showing that the violation was intentional or purposeful, but merely that the
violation was made with reckless disregard of or plain indifference toward the
regulations.14 See, e.g., Athens Pawn Shop Inc. v. Bennett, 364 Fed. Appx. 58, 59
(5th Cir. 2010) (“[t]o prove that a firearms dealer ‘willfully’ violated the law, ATF
The § 923(f)(3) use of “willfully” is much less stringent than in criminal law. In criminal law,
“willfully” is “a voluntary, intentional violation of a known legal duty.” United States v. Griffin, 524
F.3d 71, 77 (1st Cir. 2008). “Willfully” in § 923(f)(3) extends to reckless and plainly indifferent
violations. Athens Pawn Shop Inc. v. Bennett, 364 Fed. Appx. 58, 59 (5th Cir. 2010).
14
18
must show that the dealer either intentionally and knowingly violated its
obligations or was recklessly or plainly indifferent despite the dealer’s awareness of
the law’s requirements”); Gen. Store, Inc. v. Van Loan, 560 F.3d 920, 924 (9th Cir.
2009) (holding that “a deliberate, knowing, or reckless violation” of the GCA’s
requirements constitutes a willful violation); Armalite, 544 F.3d at 648 (“[a] dealer
‘willfully’ violates the GCA when it intentionally, knowingly or recklessly violates
known legal requirements”); Lewin, 590 F.2d at 269 (holding that “plain
indifference to the regulatory requirements” satisfies willfulness requirement of §
923). A showing of “bad purpose” or malicious intent is not required. See Article II
Gun Shop, Inc. v. Gonzalez, 441 F.3d at 497; Lewin, 590 F.2d at 269. Furthermore,
a single violation may justify revocation. See Armalite, 544 F.3d at 649; Am. Arms
Int’l v. Herbert, 563 F.3d 78, 86 (4th Cir. 2009).
In the words of the Fourth Circuit, proving willfulness in the context of a
failure to act often requires a court to “infer willful omission” where there exists
evidence that the party either “knew of the requirement” or “knew generally that
his failure to act would be unlawful.” RSM, Inc. v. Herbert, 466 F.3d 316, 322 (4th
Cir. 2006). Generally, a “willful” violation exists where a dealer is repeatedly cited
for the same or similar violations and warned that any future violations “would be
considered willful and could jeopardize its license.” Athens Pawn Shop, 364 Fed.
Appx. at 60; see also Article II Gun Shop, Inc. v. Gonzalez, 441 F.3d at 498 (citing
Stein’s, 649 F.2d at 468 (“Evidence of repeated violations with knowledge of the
law’s requirements has been held to be sufficient to establish willfulness”)). After-
19
the-fact attempts to correct specific violations “are irrelevant to the issue of
willfulness at the time the errors occurred.” Sturdy v. Bentsen, 129 F.3d 122, at *2
(8th Cir. 1997) (unpublished table decision).
To prevail, the Government must
demonstrate that “a dealer understands the requirements of the law, but knowingly
fails to follow them or was indifferent to them.” Perri, 637 F.2d at 1336; see also
Am. Arms Int’l, 563 F.3d at 87 (affirming summary judgment for ATF where
defendant “displayed a lack of concern for the regulations that clearly meets the
standard of willfulness”).
4.
Physical or Mental Illness as an Excuse
In general, physical illness does not excuse a licensee from complying with
federal record-keeping regulations. See, e.g., Vineland Fireworks Co., Inc. v. Bureau
of Alcohol, Tobacco, Firearms & Explosives, 544 F.3d 509, 522 (3rd Cir. 2008)
(affirming finding of willfulness, applying GCA’s willfulness standard to explosives
case, despite bookkeeper’s illness where explosives licensee’s failure to properly
record transactions “was not a ‘one-off event,’” “but instead extended for months”
during bookkeeper’s absence for cancer treatments).
Nor do mental defects, such as attention deficit disorder, necessarily excuse
or overcome a finding of willfulness. See Sturdy, 129 F.3d 122, at *1-2 (rejecting
licensee’s claim of attention deficit disorder and finding willful violation where
licensee had been cited for similar violations in previous inspections and received
descriptions of the violations and warnings that future violations would result in
license revocation).
As the Eastern District of Missouri recently noted, when
20
rejecting a federal firearms licensee’s claim that her mental incapacity negated
willfulness, “policy reasons weigh against having the court read into the statute a
dispensation for firearms dealers who, because of their own diminished capacity,
might sell guns to unqualified individuals.” Gun Shop LLC v. U.S. Dep’t of Justice,
No. 4:10CV01459MLM, 2011 U.S. Dist. LEXIS 59586, at *30 n.9 (E.D. Mo. Jun. 3,
2011) (emphasis in original).
C.
De Novo Review in the Summary Judgment Context
There is a certain tension between the Court’s obligation under the statute to
perform a de novo review to determine whether the ATF decision was “authorized”
and the Court’s corresponding obligation under Rule 56 to view the facts in the light
most favorable to the non-movant. Compare 18 U.S.C. § 923(f)(3), with FED. R. CIV.
P. 56. Merely by presenting conflicting facts, each licensee could effectively block
the summary disposition of his case and demand a full evidentiary hearing, a result
that would run contrary to the statutory directive of a de novo review only on
whether the ATF decision was authorized. Willingham Sports, Inc. v. Bureau of
Alcohol, Tobacco, Firearms and Explosives, 348 F. Supp. 2d 1299, 1306 (S.D. Ala.
2004) (“that the [GCA] provides for de novo review of administrative decisions is not
to vest a firearms dealer with an absolute right to an evidentiary hearing in
appealing from an adverse ATF decision”).
Noting that § 923(f)(3) permits the
district court to enter judgment on the basis of the administrative record when no
substantial reason to receive additional evidence is present, the courts have
developed a practice “to grant judgment summarily when the material facts
21
developed at the administrative hearing, which the court also concludes justify
nonrenewal are not substantially drawn into question by the party petitioning for
review.” Stein’s, 649 F.2d at 468 n.7 (quoting Mayesh v. Schultz, 58 F.R.D. 537, 539
(S.D. Ill. 1973)) (internal quotation marks omitted). Thus, “the Secretary’s decision
may be upheld when the trial court concludes in its own judgment that the evidence
supporting the decision is substantial.” Stein’s, 649 F.2d at 467 (internal quotation
marks omitted); see also Arwady Hand Trucks Sales, Inc. v. Vander Werf, 507 F.
Supp. 2d 754, 758 (S.D. Tex. 2007); Harrison v. Dep’t of the Treasury, No. CIV-04100-SPS, 2006 U.S. Dist. LEXIS 82348, at *2-3 (E.D. Okla. Nov. 9, 2006).
III.
DISCUSSION
Under the GCA and its regulations, federally licensed firearms dealers are
required to keep detailed records, including a record of all acquisitions and
dispositions, and to make these A&D Books available for inspection at the ATF’s
request. 27 C.F.R. §§ 121(b), 478.121(b). Thus, for the revocation to have been
authorized and for the Court to grant summary judgment in favor of the ATF, the
undisputed facts must demonstrate: 1) that Mr. Suydam was aware of the recordkeeping requirements imposed on him by federal firearms regulations and 2) that
he intentionally or knowingly failed to comply with or recklessly disregarded or was
plainly indifferent to his obligation to keep detailed records of all firearm
acquisitions and dispositions and be able to provide that information to the ATF
upon request. See, e.g., Athens Pawn Shop, 364 Fed. Appx. at 59.
22
Here, the record, even when viewed most favorably to Mr. Suydam, does not
raise a genuine issue of material fact.
There is no factual dispute on the first
factor—Mr. Suydam’s awareness of the need to maintain records and to produce
those records to the ATF.15 Mr. Suydam admits that he was unable to produce an
A&D Book for the period of 1989 to 2002 at the September 2008 inspection, that the
ATF warned him about his failure to provide the requested information at that
time, that he understood the record-keeping requirements of his FFL, and that he
was again unable to produce an A&D Book for the period from 2002 to late
November of 2009 upon inspection in March of 2010. Moreover, Mr. Suydam admits
that he was explicitly warned, after his failure to provide an A&D Book for a period
of over ten years at the September 2008 inspection, that future violations could be
deemed willful. DSMF ¶¶ 23-24; PRDSMF ¶¶ 23-34. Finally, after losing the A&D
Book even after the agent’s advice about starting a new book, Mr. Suydam
acknowledged that he remained very concerned and he knew he had to find the
book as soon as possible. PSAMF ¶ 1; DRPSAMF ¶ 1. The Court readily concludes
there is no genuine issue of material fact as to whether he was aware of both the
record-keeping regulation and the requirement that he produce those records to the
ATF upon inspection.
The Court turns to whether there is a genuine issue of material fact about
whether he knowingly failed to keep the appropriate records or was plainly
indifferent to his obligations. Even if Mr. Suydam did not intend to keep his 2002-
At oral argument, counsel for the Plaintiff conceded that Mr. Suydam was fully aware of his
record-keeping obligations as a result of his previous warnings from the ATF.
15
23
2009 A&D Book from the ATF, his repeated failure to provide that information at
the ATF’s request satisfies the legal standard for a “willful” violation because he
“knew generally” that his failure to locate and present the missing 2002-2009 A&D
Book (either on his own or with hired help) would violate the requirements of his
FFL.
See RSM, 466 F.3d at 322 (inferring willful omission from evidence that
licensee “knew generally that his failure to act would be unlawful”); see also Athens
Pawn Shop, 364 Fed. Appx. at 60 (finding willful violation where dealer was
repeatedly cited for similar violations and warned that any future violations “could
jeopardize its license”).
The undisputed facts support the conclusion that Mr. Suydam was plainly
indifferent to the record-keeping requirements of his FFL. A conscientious licensee
would not have misplaced the A&D Book in the first place. In September 2008, the
ATF warned Mr. Suydam about the imperative to maintain the A&D Book, and it
was the very next fall that he hired others to move his books. Yet on moving day,
Mr. Suydam failed to adequately sequester this essential, federally-mandated
record book from the rest of his extensive library. Allowing the intermingling of the
A&D Book with the other books in his voluminous collection is evidence of reckless
disregard or plain indifference to his legal obligations as the holder of an FFL to
maintain and make available the mandated records.
After losing an A&D Book, a federal firearms licensee who was not
indifferent to his record-keeping obligations would make every effort to find the
book. Mr. Suydam had more than three months from late November of 2009 when
24
he noticed the 2002-2009 A&D Book was misplaced, until the ATF’s March 3, 2010
inspection to locate—or arrange for assistance in locating—the book in his home
and make it available should the ATF request to inspect his records. Other than
one “cursory” visual search of the storage room around the time the book went
missing in late November of 2009, Mr. Suydam did not look further and did not hire
anyone to look for it until August of 2010, after receiving notice of the revocation of
his FFL on July 20, 2010. Chabra Decl. Ex. C-3 Notice of Revocation; DSMF ¶ 45;
PRDSMF ¶ 45. Although he asserts that he did not leave his house much between
November of 2009 and the March 3, 2010 inspection, the record is silent as to why it
took until August—and only after he received notice of his license revocation—for
Mr. Suydam to arrange for assistance in searching the storage room for the book.
Nine months elapsed with nothing but one “cursory search” for the missing A&D
Book. Even if Mr. Suydam’s physical and mental conditions prohibited him from
conducting more than a brief cursory search at any given time, there is no evidence
that he searched the room more than once. A cursory search, if systematically
repeated daily or even weekly, becomes more than cursory over time; however, the
evidence both at the revocation hearing and before the Court confirms that Mr.
Suydam limited his search for the missing A&D Book to that one “cursory search”
conducted around the time the book went missing in November of 2009.
Even viewing the evidence in the light most favorable to Mr. Suydam, the
undisputed facts make clear that he plainly knew, as the holder of a federal license
to buy and sell firearms, that the license came with an obligation to maintain and
25
present for inspection all records of his firearm acquisitions and dispositions and
that he twice failed to have his A&D Books available for inspection. After one failed
inspection, a Report of Violations, a warning conference, and multiple discussions
with ATF agents about his record-keeping obligations, another of Mr. Suydam’s
A&D Books went missing and he failed to take immediate action to rectify the
situation.
Mr. Suydam’s most earnest contention is that his physical and mental
conditions effectively deflect the statute’s willfulness requirement. His argument is
that physical and mental inability is not volitional and therefore not willful. Even
assuming that in a highly unusual case, a temporary and severe physical or mental
condition could effectively blunt the willfulness requirement, this is not that case.
Mr. Suydam’s physical and mental conditions were not so severe that they justified
his prolonged failure to find or make arrangement to find the mandatory records.
Although the Court is sympathetic to Mr. Suydam’s physical and mental conditions,
those conditions do not excuse him from maintaining proper records and having
them available for inspection. See, e.g., Vineland Fireworks Co., 544 F.3d at 522;
Sturdy, 129 F.3d 122, at *1-2.
Here, the facts belie the defense.
After nine months of lost records, Mr.
Suydam finally galvanized himself and hired someone to perform a more systematic
and serious search of his storage room. The A&D Book was discovered within a
day. Mr. Suydam has not been able to satisfactorily explain why what was easily
foundnine months after it went missingcould not have been found immediately,
26
if only he or someone on his behalf had looked for it. The ATF is not required to
wait for months as its licensees delay production of mandatory records.
The public safety concerns behind imposing such requirements on federal
firearms licensees are obvious, and need not be expounded here.
See, e.g.,
Huddleston v. United States, 415 U.S. 814, 824 (1974) (noting importance of GCA’s
record-keeping requirements for firearms dealers because “[t]he principal agent of
federal enforcement is the dealer”); Am. Arms Int’l, 563 F.3d at 79 n.1 (“[p]roper
records maintenance is crucial to law enforcement, which uses the information
contained in these records to trace firearms involved in crimes”).
Especially
concerning is the fact that the two missing A&D Books represent a full twenty years
of firearm acquisition and disposition records that Mr. Suydam was required to
maintain and produce and yet was unable to provide to the ATF for inspection. The
Court concludes that there is no genuine issue of material fact as to whether the
ATF was authorized to revoke Mr. Suydam’s FFL based on his willful violation of
the provisions of the GCA and related federal firearms regulations.
IV.
CONCLUSION
The Court GRANTS the ATF’s Motion for Summary Judgment (Docket # 9).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 22nd day of February, 2012
27
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?