Thurmond v. United States Department of Justice Bureau of Alcohol, Tobacco, Firearms and Explosives et al.

Filing 11

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that respondent's motion for summary judgment[Doc. # 8 ] is granted.. Signed by District Judge Carol E. Jackson on 10/17/14. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

BRUCE THURMOND,
d/b/a Oak Grove Shooting Supplies,

)
)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES DEPARTMENT
)
OF JUSTICE, BUREAU OF ALCOHOL,
)
TOBACCO, FIREARMS, and EXPLOSIVES, )
)
Respondent.
)

Case No. 4:13-CV-2290 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the motion for summary judgment by
respondent, the United States Department of Justice Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF), pursuant to Fed.R.Civ.P 56.

Petitioner, Bruce

Thurmond, did not respond to respondent’s motion, and the time allotted to do so has
expired.1
I.

Background2

Petitioner is the owner and sole proprietor of Oak Grove Shooting Supplies
located in Sullivan, Missouri.

ATF issued a federal firearms license to petitioner,

authorizing him to engage in business as a dealer in firearms other than destructive
devices, pursuant to Chapter 44, Title 18, United States Code, also called the Gun
Control Act (GCA).

Between May 3, 2011 and April 3, 2012, ATF conducted an

inspection of the licensed premises. The inspection resulted in a Report of Violations

1

Petitioner did send respondent a letter, docketed as Doc. #10-1, after respondent filed
its motion for summary judgment.
2

This statement of facts summarizes those contained in respondent’s Statement of
Material Undisputed Facts. These facts were not specifically disputed by petitioner and,
therefore, are deemed admitted. Fed.R.Civ.P. 56(e)(2); E.D. Mo. L.R. 4.01 (E).

dated April 3, 2012, listing the following nine violations of the Gun Control Act and
regulations issued thereunder: (1) failure to account for six firearms shipped to the
premises; (2) failing to log the receipt of 73 firearms in the licensee’s acquisitions and
disposition book (A&D book); (3) failing to log complete address information for all
acquisitions and dispositions in the A&D Book; (4) failing to obtain or record
identification information on ATF Form 4473 on 145 occasions; (5) failing to record the
correct date of actual transfer of a firearm on 23 occasions; (6) failing to conduct a
National Instant Criminal Background Check (NICS) on 29 occasions; (7) transferring
four firearms to a prohibited person on two occasions; (8) falsely adding firearms to
ATF Forms 4473 that were not actually sold on the dates listed on the forms on 16
occasions; and (9) falsely informing ATF that he did not have tracing information on
a firearm that was subsequently found in the licensee’s A&D book with a record of sale
in 2008. See Report of Violations, Resp. Ex. C [Doc. #9-3].
On January 2, 2013, ATF issued petitioner a Notice of Revocation of License
based on petitioner’s willful violations of the GCA, in accordance with 18 U.S.C.
§923(e). On June 18, 2013, ATF held a revocation hearing addressing the violations,
at which petitioner and ATF Senior Investigator Giselle Rucker testified. See Hearing
Transcript, Resp. Ex. A [Doc. #9-1]. The Hearing Officer concluded that petitioner had
wilfully committed the violations, and remarked that the “most serious violation” was
petitioner’s falsification of ATF forms to explain to the ATF Investigator where certain
unaccounted-for firearms had been transferred. Resp. Ex. B [Doc. #9-2]. The ATF
issued a Final Notice of Revocation of petitioner’s firearms license on August 29, 2013.
Resp. Ex. D [Doc. #9-4].

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Petitioner now seeks to challenge the agency’s decision. His pro se complaint
accuses the ATF of conducting a criminal conspiracy to revoke his license “just because
every ‘I’ isn’t dotted and every ‘T’ isn’t crossed.” Complaint [Doc. # 2, p. 8]. The
Court liberally construes the complaint as asserting a claim under 18 U.S.C. § 923(f)(3)
for de novo judicial review of the agency’s adverse decision.
II.

Legal Standard

Rule 56(a) of the Federal Rules of Civil Procedure provides that summary
judgment shall be entered if the moving party shows “that there is no genuine dispute
as to any material fact and the movant is entitled to a judgment as a matter of law.”
In ruling on a motion for summary judgment the court is required to view the facts in
the light most favorable to the non-moving party and must give that party the benefit
of all reasonable inferences to be drawn from the underlying facts. AgriStor Leasing
v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The moving party bears the burden of
showing both the absence of a genuine issue of material fact and its entitlement to
judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Once
the moving party has met its burden, the non-moving party may not rest on the
allegations of his pleadings but must set forth specific facts, by affidavit or other
evidence, showing that a genuine issue of material fact exists. United of Omaha Life
Ins. Co. v. Honea, 458 F.3d 788, 791 (8th Cir. 2006) (quoting Fed. R. Civ. P. 56(e)).
III.

Discussion

The Gun Control Act provides that, after notice and opportunity for a hearing,
the Attorney General or his delegate may revoke a federal firearms license if the
licensee has willfully violated any provision of that law, or any rule or regulation

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prescribed thereunder.

18 U.S.C. § 923(e).

Upon revocation, the licensee may

request a hearing pursuant to 18 U.S.C. § 923(f)(2). If the revocation is upheld, the
licensee may then seek de novo judicial review under 18 U.S.C. § 923(f)(3). A court
may grant summary judgment on the basis of the administrative record, without
conducting an evidentiary hearing, if no issues are left unresolved in the administrative
proceedings. Cucchiara v. Sec’y of the Treasury, 652 F.2d 28, 30 n.1 (9th Cir. 1981),
cert. denied, 455 U.S. 948 (1982); Fin & Feather Sport Shop, Inc. v. United States
Treasury Dep’t, 481 F.Supp. 800, 807 (D.Neb. 1979) (“[S]ummary judgment is
available under Section 923(f)(3)....”).
Respondent argues that it is entitled to summary judgment on the basis of the
administrative record, because the undisputed facts show that petitioner willfully
violated provisions of the GCA and ATF’s regulations. Those regulations require that
a licensee timely record the acquisition and disposition of firearms,3 verify the
identification of purchasers,4 and conduct background checks prior to the transfer of
firearms.5 The licensee is forbidden from transferring firearms to ineligible purchasers,6
and from knowingly entering false information in the records required by the GCA.7
A licensee commits a violation “willfully” when he knows the legal requirements
and purposefully disregards them or is plainly indifferent to those obligations. See On
Target Sporting Goods, Inc. v. Attorney General of the United States, 472 F.3d 572,

3

See 18 U.S.C. § 923(g)(1)(A) and 27 C.F.R. § 478.125(e).

4

See 18 U.S.C. § 923(g)(1)(A) and 27 C.F.R. § 478.124(c)(3)(I).

5

See 18 U.S.C. § 923(g)(1)(A) and 27 C.F.R. § 478.124(c)(3)(iv); § 478.102(a).

6

See 18 U.S.C. § 923(g)(1)(A) and 27 C.F.R. § 478.99(c)(1).

7

See 18 U.S.C. § 922(m) and 27 C.F.R. § 478.121.

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575 (8th Cir. 2007) (citing Lewin v. Blumenthal, 590 F.2d 268, 269 (8th Cir. 1979)).
The government is not required to show that the licensee committed the violation with
any bad purpose. Id. Nor is the government required to show multiple violations even a single willful violation can trigger ATF’s power of revocation. See Gun Shop,
LLC. v. United States Dep’t of Justice, No. 4:10-cv-1459 (MLM), 2011 WL 2214671, at
*6 (E.D. Mo. June 3, 2011) (citing American Arms Int’l v. Herbert, 563 F.3d 78, 86
(4th Cir. 2009)).
It is undisputed that petitioner committed the alleged violations.

In his

testimony at the administrative hearing, petitioner admitted that he failed to keep
records as required by law. See Resp. Ex. A [Doc. #9-1] at p. 16; 19; 30-33. A
review of the record shows that petitioner transferred guns to ineligible purchasers,
without first completing background checks, and without obtaining full identification.
Petitioner failed to fully record the acquisition and disposition of firearms in the A&D
book. He also failed to complete ATF forms identifying purchasers, and then falsified
these forms in an attempt to explain to the ATF Investigator where unaccounted-for
firearms were transferred. Petitioner admitted that “I’ve made mistakes in making,
keeping records in here. I’ll admit it. I’ll admit I fouled up, I screwed up on account
of I should have kept better records.” Id. at 31-32.
The undisputed evidence also demonstrates that petitioner knew of the legal
requirements. He was aware of, and had complied with, the requirements in the past.
The number of violations committed demonstrates purposeful disregard of, or clear
indifference to, those requirements. In particular, petitioner’s act of inscribing false
information on ATF forms was plainly willful. At the administrative hearing, petitioner
suggested that his mistakes were de minimus. He stated that, “I’ve been in this

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business a long time, and I really don’t feel that I’ve done enough stuff for me to get
a license took away from me....” Resp. Ex. A [Doc. #9-1] at 31. However, “the GCA
does not provide a dispensation for ‘minor’ errors. The statute requires only a violation
of any rule or regulation for revocation.” Gun Shop, LLC, 2011 WL 2214671, at *10.
Petitioner also suggested that his license should not be revoked because he now
complies with all regulations. However, “after-the-fact efforts to correct the specific
violations... are irrelevant to the issue of willfulness at the time the errors occurred.
Although [petitioner] exhibited willingness to remedy errors, the standard for
revocation under the GCA considers only errors themselves and not the stores’ post
hoc modifications.” Id.; see also Cucchiara, 652 F.2d at 30 (“The fact that [petitioner]
spent a great deal of money trying to correct his faulty recordkeeping system, after the
violations... is immaterial to the question of willfulness at the time the violations
occurred.”).
Accordingly,
IT IS HEREBY ORDERED that respondent’s motion for summary judgment
[Doc. #8] is granted.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

Dated this 17th day of October, 2014.

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