ATF Admits They Would Be Sued for Revoking Ability to use CHPs for Gun Sales
Article first appeared on Ammoland.com
MONTGOMERY, ALABAMA –-(Ammoland.com)- Gun Owners of America recently filed a lawsuit against the ATF, after the agency blocked Alabama firearms dealers from allowing buyers to use their concealed handgun permits in place of going through the National Instant Criminal Background Check System (NICS).
Federal law says that state concealed handgun permits (CHP) that meet or exceed the requirement of section 922(t)(3) of Title 18 can be used by dealers instead of requiring background checks. Alabama’s concealed firearms permit statute meets the federal requirements because sheriffs are supposed to run applicants through NICS before issuing a permit.
The ATF discovered that some sheriffs in Alabama were not using NICS. Some of these sheriffs were running applicants through The National Crime Information Center (NCIC) and other federal databases, but not NICS. Yet NCIC is the same database that NICS pulls its information from before returning with a denial or approval. The ATF decided to revoke dealers’ ability to use CHPs because of a few sheriffs’ actions.
Gun rights advocates worry that the ATF is overstepping its boundaries and making de facto laws. The agency in recent years has rewritten the definition of machine guns to ban bump stocks. It has gone back and forth on whether braces change AR pistols to short-barreled rifles.
In 2016, then Alabama Attorney General Luther Strange told the ATF that Alabama’s statute meets the requirements of federal law. In 2016, ATF agreed. Now ATF has changed its tune, on the theory that some Alabama sheriffs are not complying with state law. Of course, sheriffs not complying with the law doesn’t invalidate Alabama’s statute, or its exemption under 922(t)(3)
AmmoLand examined the administrative record in Lee v. DOJ, 20-cv-632, pending in federal district court in Alabama. It appears that the ATF was aware that it could be sued over its decision to force dealers to run NICS checks on those buyers that have Alabama CHPs.
Division Chief Krissy Carlson of the Firearms and Explosive Industry Division of the ATF seems to have been the primary source of the ATF’s action against Alabama. In an email, ATF Senior Policy Counsel Eric Epstein appears to have warned that there would be a “litigation risk” to the agency over any decision to revoke the Alabama exemption. But as ATF records show, multiple ATF employees decided it was worth the litigation risk because of “public safety.”
On March 22, 2019, Kyle Lallensack, who was Chief of the Firearms Industry Programs Branch (FIPB) for the ATF at the time, wrote in response to Epstein’s warning:
“Even if it’s a litigation risk I think it is worth pursuing based on public safety. It will take a while for this to get fixed by Alabama getting counties to run their permit holders.”
Carlson chimed in, stating, “litigation risk is going to be the least of our concerns.”
In a highly redacted email, it seems that Epstein argued against the issuing of the letter revoking Alabama’s permit exemption, even though he “agree[d] with the concept.” Carlson rebuked Epstein and said that Alabama dealers should not be permitted to use permits for firearms purchases until Alabama ran 60,000+ background checks on permits that had not had a NICS check and prove to the ATF that sheriffs were following state law.
After losing the battle, Epstein appears to have drafted a letter to Alabama, telling the state that dealers could no longer use CHPs in-lieu of NICS checks, along with the ATF letter to dealers telling them to stop accepting Alabama permits instead of NICS. Associate Deputy Director and Chief Operating Officer Marvin Richardson and Acting Assistant Director of Enforcement Programs and Services, Curtis Gilbert who I had highlighted in AmmoLand’s reporting of the ATF’s pistol brace debacle, reviewed and signed both the ATF letter to Alabama, and the letter to Alabama dealers.
GOA is also suing the ATF over a similar action the agency took against Michigan.
About John Crump
John is a NRA instructor and a constitutional activist. John has written about firearms, interviewed people of all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons and can be followed on Twitter at @crumpyss, or at www.crumpy.com.