A new federal reporting requirement for firearms dealers in four border states, including Texas, intended to curb the flow of weapons into Mexico has prompted a veteran San Antonio gun dealer to file suit against the federal government.
The federal Bureau of Alcohol, Tobacco, Firearms and Explosives issued a rule last week requiring licensed firearms dealers to report to the agency any time two or more long rifles are sold to the same buyer within a five-day period. The move comes as the ATF continues to deal with the fallout from its controversial "Operation Fast and Furious," an investigation into gun trafficking in which federal agents let hundreds of weapons fall into the hands of Mexican drug-cartel operatives.
The new requirement specifically pertains to rifles with calibers greater than .22 and capable of holding a detachable clip and that are sold in the four states that border Mexico, including Arizona, California and New Mexico. The ATF will use its National Tracing Center to analyze the information reported by dealers.
“The whole thing is a waste of time,” said Alex Hamilton, president of 10-Ring Precision Inc., a San Antonio-based firearms seller, who brought the suit against ATF Acting Director Kenneth Melson. “They don’t need to cause me to do more useless paper work when they have all the tools at their disposal.”
Hamilton’s suit was filed in U.S. District Court in the Western District of Texas in San Antonio. It alleges that under the requirement, “10-Ring has been, and will continue to be, threatened with, and subjected to, irreparable harm” which includes “economic loss as a result of having to devote employee time to preparing the reports and the loss of business from both in-state and out of state potential purchasers … who would have been dissuaded from doing so because they wish to protect their privacy rights.”
Earlier this month, the National Rifle Association filed a similar suit against the government on behalf of two firearms dealers in Arizona.
Hamilton and his attorneys, Allen Halbrook and Richard Gardiner, also allege the rule exceeds the agency’s authority because the new rule is not required by current law and not necessary for a “bona fide criminal investigation.”
Hamilton says the ATF’s screening practices before the new requirement was issued already made it difficult for gun dealers to engage in or aid smuggling.
“Let’s just say I got a bunch of AR-15s, I got 20 of them, and I sell 20 guns to one man,” he said. “When the ATF comes in here for my annual inspection, I am going to tell you, that [sale] is a red flag as big as a garrison flag out at Fort Sam Houston.”
In El Paso this month, Robert Champion, the ATF’s special agent in charge of the Dallas Field Division, which includes a large swath of the Texas-Mexico border, defended the new rule and said it does not infringe on a person’s Second Amendment gun rights. Champion said it expands on a similar reporting requirement for handgun sales that has been in place for decades.
“It just asks the gun dealer to let us know if someone has purchased two or more long gun. That way we can ascertain if he’s doing it on a constant basis,” Champion told the Tribune. “We’ve had cases where if that requirement would have been implemented years ago, it would have helped us identify these traffickers a lot sooner. We are not here to infringe on anyone’s rights. [But] if we are going to ID the traffickers, we have to be able to at least ask where these guns are going.”
Champion said the move is one way to tackle illegal gun-running enterprises near the border, though he acknowledged the breadth of the problem extends far beyond the region.
“This is not just a border issue. It's an internal issue — we’re having trafficking coming all the way from Minnesota, from Indianapolis, from the Seattle area,” he said. “And it’s coming south.”
Opponents of the ATF’s rule question why it only applies to a handful of border states if gun trafficking extends far beyond them.
“So if you’re in Texas you know you’ve got to do it, but if you go some cases 20 miles north, you don’t,” said Alice Tripp, the legislative director for the Texas State Rifle Association, the state’s lobbying arm of the NRA. “Like a bad guy wouldn’t go to Oklahoma?”
“Trust is earned”
Even months before the “Fast and Furious” scandal broke, opposition to the new reporting requirement was fierce. The requirement was first proposed in December, leading to complaints directed at both countries’ governments: the United States' for threatening to infringe on constitutional rights and Mexico’s for placing too much blame on the U.S. The Mexican government, opponents said, was submitting for tracing only the weapons it knew would have originated in the U.S. But the "Fast and Furious" scandal has created even more resistance to the agency, which Tripp and Hamilton said should not be trusted.
“When our own government buys guns or allows these guns to be purchased and allows them to become lost across the border and agents are injured, then pretty much any credibility is just lost,” Tripp said. “You don’t want to be a rock in the stream when it comes to a plan that makes sense, but trust is earned and there’s just not any there.”
Champion acknowledged the scandal has tarnished the agency’s reputation but said the ATF has long been underfunded and understaffed, which hinders its ability to move forward. It has also lacked a permanent director for six years. He blames the political winds and the power of the pro-gun lobby.
“We’re at 2,500 agents. We began as an agency, as a bureau in 1972, and we were at the same levels we are now,” he said. “I hear these other agencies like the Border Patrol that have 21,000 agents [while] we have not had that luxury of having that increase for some time. It really is difficult to work some of these investigations.”
The ATF’s budget has remained at about $1.12 billion since 2010, and an ATF spokesman said the number of ATF field agents has remained at about 2,500, with an additional 2,500 in support personnel.
The “Fast and Furious” scandal and the reporting requirement has also caused two Texas lawmakers whose congressional districts combine to include a large part of the Texas-Mexico border to split on their assessments of the agency. U.S. Rep. Silvestre Reyes, D-El Paso, a former border patrol sector chief, said the public should wait until the government concludes its investigation into the flaw operation to pass judgment.
“Remember this was under the direction of an OCDETF [Organized Crime Drug Enforcement] task force, which means there was an assistant U.S. attorney in charge,” he said. “Normally the OCDETF task forces get and give the information through their chains of command, so that’s something we need to wait on and see what those investigations reveal.”
Asked about the power of the pro-gun lobby, specifically the NRA, and whether he thinks it wields as much of an influence as Champion says, Reyes said: “I wouldn’t dispute their power. When they can shift attention to an agency versus the issue itself of drugs and other contraband coming north and guns and money going south, that’s quite a bit of stroke they have.”
Fellow Democrat and Laredo-area U.S. Rep Henry Cuellar doesn’t necessarily agree.
“I’ve always supported ATF but in this [Fast and Furious] case I think they need to come clean, especially when Congress is asking them questions,” he said, adding that he stands with the NRA in opposition to the new requirement. “At least in my perspective they could have done what they had [to] under the current law. But they still messed up. They seem — and I’ll say ‘seem’ — to have violated the protocols. So what we are saying is ‘Hey, you got to start following your own current rules before you start talking about something else.’”
With respect to the funding, Cuellar said, at least in his area, the ATF has actually expanded its operations. The agency now has an office there with a modest staff when just a few years back there was no agency presence.
Champion said, however, that adding more agents in one area means pulling some out of another. And if the agency has beefed up its presence on the border, it’s been a reaction to increased activity.
“I was assigned in Houston as assistant special agent in charge there, and I covered Laredo, McAllen — all that area — and we saw in 2005-2006 a substantial increase [in weapons smuggling],” he said.
He and Reyes also refuted recent allegations that a situation similar to “Fast and Furious” occurred in Texas. On Aug. 11, U.S. Sen. John Cornyn, R-Texas, wrote to U.S. Attorney General Eric Holder requesting information about the allegations.
“I write to express my deep concerns regarding press reports of an ATF “gun-walking” program that allegedly operated in the state of Texas,” Cornyn wrote. “I request that the Department of Justice immediately brief my office regarding the scope and details of any past or present ATF “gun-walking programs operated in the state of Texas.”
Champion says the reports are without merit.
“I understand that’s not correct at all. That information is not valid,” he said.
Hamilton’s case is pending.
Meanwhile, the ATF is keeping the spotlight on smuggling in Texas. On Wednesday the agency issued a press release announcing lengthy sentences for two Texans convicted of weapons smuggling. Aurelia Ochoa Hernandez and Pedro Daniel Tovar were sentenced to 30 and eight years, respectively, in federal prison. Both were convicted of conspiracy to smuggle firearms and making false statements in firearms records.
Federal prosecutors said the two were members of a gang directed by Juan Carlos Ramirez Zuniga, a member of the Los Zetas drug cartel, according to testimony presented at trial. Prosecutors said the two were involved in making straw purchases of firearms and smuggling them into Mexico.
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