http://www.jsonline.com/watchdog/watchdogreports/99999969.html

Judge says Shawano gun dealer should lose license
But appeals process could take years

By John Diedrich of the Journal Sentinel

Aug. 4, 2010

A judge has ruled that a Shawano gun dealer should lose its license for repeatedly failing to keep accurate records and for making suspected straw gun sales, supporting the action a federal agency took nearly three years ago.

Despite the ruling from U.S. District Judge William Griesbach in Green Bay this week, Shawano Gun and Loan continues to sell guns - and might be able to do so for months or even years depending on a possible appeal.

Griesbach issued an order that supported the revocation issued by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives in October 2007.

The ATF took the rare step of revoking the Shawano store’s license after repeatedly warning the owner about missing records and other violations.

The owner has fought the ATF’s effort to close the store for nearly three years. Meanwhile, the store has continued to sell guns - thousands of them a year.

The case illustrates how laws enacted by Congress hobble the agency charged with policing gun stores and protect dealers who repeatedly break the law.

In his order, Griesbach rejected the store’s argument that the violations were minor paperwork errors.

“The business opportunity afforded by a federal firearms license is a privilege, not a right,” Griesbach wrote in his order. “With privilege comes a responsibility to adhere to (Gun Control Act) rules and regulations. Time and time again Shawano showed plain indifference to that responsibility.”

The ATF has been notified of Griesbach’s order, Assistant U.S. Attorney Lisa Warwick said, but no decision has been made about what to do next.

The ATF typically allows stores to continue selling guns during the appeal process. The law and court rulings have found that a dealer can, on a one-time basis, move his entire inventory into his “private collection” and sell the firearms at gun shows without background checks. By allowing the store to continue selling guns, the ATF prevents that scenario.

ATF spokesman Robert Schmidt said the case remains open because the Shawano store can appeal.

“ATF is weighing all its options at this point,” Schmidt said.

Raymond Dall’Osto, attorney for the Shawano store, said the store’s owner is disappointed and is considering appealing to the 7th Circuit U.S. Court of Appeals in Chicago. If an appeal is filed, Dall’Osto said he probably would seek a stay of the revocation, allowing the store to continue selling guns.

Dall’Osto said an appeal would argue that the ATF does not have enough options to punish gun stores. Other than revocation, Congress only allows the agency to give warnings. The ATF cannot suspend or fine a dealer, except under rare circumstances.

“It is warning or the death penalty of revocation. Those are the options. There is no middle ground,” Dall’Osto said. “The issues here are ripe for review by the 7th Circuit.”
Special rules

Gun stores are handled differently than other federal licenses because of legislation that lays out special appeal rights and rules for gun dealers. ATF investigators can inspect a dealer only once a year without a federal court order. But the agency doesn’t come close to inspecting all 115,000 dealers annually because of limited funding from Congress.

The agency moved to revoke 64 licenses in fiscal year 2009 stemming from more than 11,000 inspections - the most recent figures available.

Revoking a license can take years because of a law that allows a so-called “de novo review” by a federal judge - a fresh look at the matter that may result in a trial. In the Shawano case, Griesbach did not hold such a trial, yet the case still took 18 months to conclude as each side submitted hundreds of pages of documents.

Timothy Backes opened Shawano Gun and Loan in 1998 and was told by the ATF about the importance of record-keeping rules, records show. Keeping accurate paperwork is key for the ATF to detect illegal gun trafficking, officials said.

A year after the store opened, ATF inspectors found many problems with the store’s inventory, including missing records on the sale of at least 145 guns, according to ATF records.

ATF investigators returned five years later and found more violations, again involving missing paperwork on guns, records show. A warning was issued.

In 2007, ATF investigators returned and again found missing paperwork for guns sold. They also uncovered evidence Backes and his staff were selling guns to straw buyers, records show. Straw buyers are people with clean records who buy guns for felons and others who cannot buy them.

Dall’Osto said they were not straw gun sales, but simple misunderstandings. He noted that Backes has fired an employee. The judge said that wasn’t good enough.

“Shifting the blame to employees is improper in light of the serious, potentially dangerous, and repeated nature of Shawano’s violations,” Griesbach wrote.

Backes repeatedly told ATF investigators during the 2007 inspection that he planned to transfer the store to his nephew, who manages the operation, according to records.

If Backes relinquishes his license and his nephew obtains a fresh one, that could halt the revocation process and erase the earlier violations.
Similarity to Badger Outdoors?

That would be similar to a case in 2006, when ATF investigators recommended revoking the license of Badger Outdoors in West Milwaukee.

There was no revocation and the store remains open, operating as Badger Guns. Federal records show the license recommended for revocation was relinquished voluntarily, the players inside the operation took on new roles and a new license was issued to the son of a previous owner, creating what one federal official called a “clean slate,” a Journal Sentinel investigation found earlier this year.

A former owner of Badger Outdoors said he knew nothing about the recommended revocation, and he already had decided to turn in the license and retire. The current owner declined to comment on the change.

Badger Guns and Badger Outdoors have been the top sellers of crime guns recovered by Milwaukee police for at least the past decade, according to records obtained by the Journal Sentinel. Guns used in the wounding of six Milwaukee police officers over two years were all purchased from Badger Guns or Badger Outdoors.

In 2007, a total of 12,632 people in the United States were murdered with firearms, and it is estimated that another 48,676 were treated in hospitals for gunshot wounds received in assaults. Guns are frequently used to commit crimes in the United States, partly because they are so easy to get. This ease of access, in turn, is partially attributable to the fact that there are two systems of retail gun commerce in this country, one involving licensed gun retailers and the other based on private-party gun sellers, and only the former of these systems is regulated. Some 85% of all guns used in crimes and then recovered by law-enforcement agencies have been sold at least once by private parties.

To buy a gun from a gun dealer or other federally licensed gun retailer, you must show identification. You must certify on a lengthy form that you are buying the gun for yourself and that you are not a member of any of several classes of people (including felons and persons under felony indictment, fugitives, domestic-violence offenders, controlled-substance addicts, persons “adjudicated as a mental defective,” and certain others) who are prohibited from purchasing or possessing firearms. A background check will be conducted. In more than 90% of cases, the check is completed within minutes, but if there is uncertainty you may wait up to 3 days to get your gun. The retailer must keep a permanent record of your purchase. If you buy more than one handgun from that retailer within 5 business days, the retailer must report the details of your purchase to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).

However, under federal law you can also legally buy as many guns as you want from a private party, and none of those procedural safeguards will apply. Private-party gun sales can be completely anonymous and undocumented. Private sellers are not required to see identification or keep records, and they cannot initiate background checks. A brief negotiation over price, an exchange of cash, gun, and a handshake, and your purchase is complete.
Police Handguns Displayed by an Unlicensed Vendor, Milwaukee.

These conditions exist because Congress drew on its constitutional authority to regulate interstate commerce in drafting the Gun Control Act of 1968, the law under which modern gun commerce operates. Those “engaged in the business” of selling guns were required to obtain federal licenses, but private parties who sold guns infrequently were not.

Today, private parties can buy and sell many guns a year while claiming not to be engaged in the business. Perhaps 40% of all gun sales nationwide — roughly 6.6 million transactions in 2008 — are made by private parties. Moreover, private parties can sell handguns to anyone 18 years of age or older; licensed retailers cannot sell handguns to anyone under 21 years of age.

The private-party gun market, sometimes called the informal gun market, has long been recognized as a leading source of guns used in crimes. Although private-party sales are primarily a convenience for the law-abiding purchaser (since they involve no paperwork, no background check, and no waiting period), such sales are also the principal option when the prospective purchaser is a felon, a domestic-violence offender, or another person prohibited by law from owning a gun. Private-party sales facilitate the diversion of guns from legal commerce into criminals’ hands: although it is always illegal for certain classes of people to buy a gun, it is illegal to sell a gun to such people only if the seller knows or has reasonable cause to believe that he or she is doing so. Unscrupulous private sellers may simply avoid asking questions that would lead to such revelations.1

These two parallel systems of gun commerce are most readily seen in operation at gun shows, where they operate literally side by side.1 Large gun shows function as the big-box retailers of gun commerce: hundreds of vendors, both licensed retailers and private parties, display thousands of guns and compete for the business of thousands of potential buyers. It is very likely that most gun sales at gun shows are legal. Nonetheless, these shows have repeatedly been identified as important sources of guns used in crimes.2 One ATF investigation of gun-show trafficking involved 10,000 guns that became available for criminal use; another involved 7000.2 In this respect, gun shows may be seen as criminogenic pumps, bringing large numbers of buyers seeking guns for criminal purposes together with retailers or private sellers who will ask no questions.

Concerns about private-party gun sales and the importance of gun shows as a source of guns used in crimes have led to repeated calls for closing the “gun show loophole” — by which advocates usually mean requiring that private-party sales at gun shows be routed through a licensed retailer who will do a background check and keep a record of the purchase. President Barack Obama endorsed such a measure during his 2008 presidential campaign, as did President George W. Bush in 2000 and 2004. Legislation to close the loophole has been introduced in both the Senate and the House of Representatives, but no hearings have been scheduled.

In fact, there is no gun-show loophole as such. Federal law is silent on the issue of gun shows and permits private-party gun sales to occur anywhere. As a result, such a limited measure might well have no detectable effect on the rates of firearm-related violent crime. Gun shows account for a small percentage of all gun sales in the United States — between 4 and 9%, according to the best estimates available.1 Similarly, they account for just 3 to 8% of all private-party gun sales. Legislation to close the gun-show loophole would not affect the great majority of private-party sales, and motivated illicit buyers could simply find private sellers elsewhere. (In addition, closing the alleged loophole would not necessarily reduce, by more than a small amount, the importance of gun shows as a source of guns used in crimes. Most sales at gun shows — more than 80%, according to unpublished data3 — are made by licensed retailers, not private parties, and data from gun-trafficking investigations indicate that two thirds of the guns used in crimes that have been linked to gun shows were sold by licensed retailers.2)

A more effective approach would be to subject all private-party gun sales to the screening and record-keeping requirements that apply to sales by licensed retailers. Six states do so already, and nine others regulate all sales of handguns (see map).

State Procedures for Regulating Private-Party Gun Sales, According to Gun Type and Venue.

States shown in blue require screening of buyers and record keeping according to type of sale. Data are from the Survey of State Procedures Related to Firearm Sales, 2005, published by the Bureau of Justice Statistics.

Screening works. In 2008, under the terms of the federal Brady Handgun Violence Prevention Act, federal and state agencies conducted 9,900,711 checks initiated by licensed retailers and denied 147,080 purchases (1.5%). Long-term observational studies in California show that denial, in turn, is associated with a roughly 25% decrease in the risk that the would-be purchaser will later commit a crime involving guns or violence. Unfortunately, the effect of such regulations when they are implemented at the state level, as they usually are, is blunted by the lack of similar requirements in other states. Similarly, perhaps the principal reason for the well-documented failure of the Brady Act to lower rates of firearm-related homicide is that its requirements do not apply to private-party gun sales.4 Regulating all private-party sales, by contrast, would have measurable benefits.5

Private-party gun sales might become more expensive if certifications and background checks were required; in California, retailers may charge a processing fee of up to $25. They would also become less convenient, but airport security screening offers a useful example here: we might know that security screening is an unnecessary intrusion as applied to us, but we have no such certainty that it is unnecessary as applied to those who are standing in line with us, and few people would endorse a proposal to leave the decision about whether to be screened to the individual passenger.

Drawbacks with respect to expense and inconvenience notwithstanding, 83% of self-reported gun owners and 87% of the general population endorsed regulation for all private-party gun sales in a 2008 poll that was conducted for the advocacy organization Mayors Against Illegal Guns. Gun owners gave stronger support to this all-inclusive approach than to a gun-show-only proposal in a 2009 poll conducted for the same organization. Either proposal would face tough sledding on Capitol Hill. It would therefore seem preferable to move forward with the version that is most likely to reduce the rates of firearm-related violence.

Disclosure forms provided by the authors are available with the full text of this article at NEJM.org.

Source Information

From the Violence Prevention Research Program and the Department of Emergency Medicine, University of California Davis School of Medicine, Sacramento (G.J.W.); the School of Criminal Justice at Rutgers University, Newark, NJ (A.A.B.); the Program in Criminal Justice, Kennedy School of Government, Harvard University, Cambridge, MA (A.A.B.); and the Center for Crime Prevention and Control, John Jay College of Criminal Justice, City University of New York, New York (D.M.K.).

This article (10.1056/NEJMp1006326) was published on June 30, 2010, at NEJM.org.

References

1. Wintemute GJ. Inside gun shows: what goes on when everybody thinks nobody’s watching. Sacramento, CA: Violence Prevention Research Program, 2009.
2. Braga AA, Kennedy DM. Gun shows and the illegal diversion of firearms. Georgetown Public Policy Revue 2000;6:7-24.
3. Hepburn L, Miller M, Azrael D, Hemenway D. The U.S. gun stock: results from the 2004 National Firearms Survey. Inj Prev 2007;13:15-19. [Free Full Text]
4. Ludwig J, Cook PJ. Homicide and suicide rates associated with implementation of the Brady Handgun Violence Prevention Act. JAMA 2000;284:585-591. [Free Full Text]
5. Webster DW, Vernick JS, Bulzacchelli MT. Effect of state-level firearm seller accountability policies on firearm trafficking. J Urban Health 2009;86:525-537. [CrossRef][Medline]

guns, Guns, GUNS, How the Fringe Defines Freedom

– Linneman’s Riverwest Inn –
1001 E. Locust St., Milwaukee
Doors Open 6 p.m. – Music Starts 7 p.m.
$10 Donation Benefits WAVE & the Brady Campaign

Featuring the usual awesome lineup of musicians!

The Lackloves
John Sieger
Mike Fredrickson
Purgatory Hill
Dan Hanson’s X-rays
Heidi Spencer
Seamus Holloway
Up & Atoms
The Form
Mike Plaisted
The Danglers
The Delta Routine
Blonde on Blonde
Amy Rohan
Grand Disaster
The Aimless Blades
and many others!

After watching the video, contact your legislators so we can close the outrageous loophole that gives criminals such easy access to guns.

Washington, D.C. - A majority of Americans oppose people carrying loaded guns openly in public. More feel unsafe than feel safer - and a third feel much less safe with that knowledge, according to a poll conducted for the Brady Center to Prevent Gun Violence by respected polling firm Lake Research Partners.

“Politicians who are doing the bidding of the gun lobby, and businesses who worry about offending gun rights extremists, should look at this data and be aware that there is potentially a large price to pay with voters and customers alike,” said Paul Helmke, President of the Brady Center. “Having more guns in public places not only puts more people at risk, it clearly makes people feel less safe.”

“We found strong negative reactions to more guns in public - both carried openly and concealed - among many key voting blocks, and stronger-than expected concerns about some of these policies among gun owners,” said Celinda Lake, President of Lake Research Partners.

There is a sizable gender gap in the polling data, with 63 percent of women feeling less safe with allowing open carry. The gap, of 49 points between men and women, represents “one of the largest divides seen on current issues,” researchers report. Voters who were identified as people of color also “solidly and intensively” oppose allowing open carry.

The poll of 600 registered voters was conducted April 26-28, and carries a margin of error of plus or minus four percent. Among the findings:

· Fifty-two percent oppose allowing people in general, not just those connected to law enforcement, to carry loaded guns openly in public;

· Fifty percent of voters feel less safe knowing that people not connected to law enforcement can carry guns in public, while 38 percent feel more safe.

· A majority - 51 percent of those polled - said they were less likely to vote for a candidate who makes it easier for people to carry loaded guns in public, compared to 27 percent who were more likely to support such a candidate. Fully 63 percent of women said they were less likely to vote for a candidate who makes it easier to carry guns in public.

· Women across all groups oppose open carry broadly - 76 percent of women of color, 68 percent of urban women and older women, 59 percent of suburban women 55 percent of younger women and a majority of rural women.

· A similar majority - 56 percent of those polled - favor Starbucks and other retail establishments establishing strict “no guns” policies for their businesses - and far more gun owners support a “no guns” policy for Starbucks than believe Starbucks and other businesses should allow firearms on their premises.

· When it comes to concealed weapons, 57 percent of respondents said they felt less safe knowing people can carry loaded, concealed guns in public. Fully 39 percent of respondents said they felt much less safe knowing that people may be carrying concealed, loaded weapons.

Brady Center Vice President for Law and Policy Dennis Henigan will present further data from the poll at a press conference tomorrow (Thursday, May 13) in Seattle, where the Starbucks Coffee Company is based. And Helmke, the Brady President, will speak to news media in Charlotte, North Carolina Friday, the site of the National Rifle Association’s annual meeting featuring speakers including Sarah Palin and Newt Gingrich. More data is at:

http://www.bradycampaign.org/xshare/bcam/legislation/open_carry/polling-overview-slides.ppt

and more will be added to the website on Thursday and Friday after those press briefings.

The Seattle press conference will be at 10 AM Thursday at the Washington Athletic Club in Seattle, 1325 Sixth Avenue. The time and location of the Friday discussion of polling data by Paul Helmke will be announced shortly.

The Brady Campaign launched a petition online in February, in partnership with CREDO Action, asking Americans to urge Starbucks to bar guns from its stores. So far more than 35,000 have signed. The Brady Campaign has also posted videos related to the issue. View them at www.youtube.com/bradycampaign#p/a/u/0/aStG6cWyF2Y.

More information about “open carry,” including which states allow it, is at www.bradycampaign.org/legislation/gunlobbybacked/opencarryguns.

###