A great read from Jim Jefferies:
http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/jim_jeffries/jim4.txt
WHEN THE BATF COMES A-CALLIN'
James H. Jeffries, III
"There is no wholly satisfactory substitute for brains, but silence does pretty well." Anonymous
Probably one of the least favorite events for any Federal Firearms Licensee (hereafter "FFL") is a visit from the Bureau of Alcohol, Tobacco and Firearms (hereafter "BATF"). This can occur in one of at least six very different ways and your legal rights and recommended responses vary accordingly.
For purposes of the following discussion I will assume that you are a law-abiding licensed dealer or collector who tries to comply honestly with the federal firearms laws. If some of the discussion below seems excessively cautious, or even hostile to BATF, it is based on real world experience with an agency which has been found by Congress, by various federal judges and juries, by other federal and local law enforcement agencies, and even by some Presidents to be inept, indifferent to citizens' rights, and capable of the most outrageous abuses of the law.
BATF operates under the rationale of requiring you to comply with the law. I operate under the rationale of requiring BATF to comply with the law. I required this of BATF as a federal prosecutor for almost 30 years, and I require it as a private citizen and as a lawyer. You should require it as an FFL.
A non-licensee has no legal duty whatsoever to talk to or otherwise cooperate with a BATF agent (or any other governmental official). It is a sad commentary on our times and the state of our federal government (and especially BATF) that the appropriate legal advice from a defense lawyer to a non-licensee confronted by a federal or state law enforcement officer can be capsulized in a single sentence called RULE ONE: Silence is golden; or what part of "no" don't you understand?
If you are an FFL, however, additional considerations come into play.
1. The Tracing Center Inquiry. Most active dealers have had a telephone call from BATF's Tracing Center at some time or other inquiring about the disposition of a firearm whose serial number traces to the dealer. This is usually an inquiry concerning a third party and does not implicate the dealer. It should normally occur during your listed business hours, although emergency traces in high-profile matters could occur at any time of the day or night.
These inquiries are authorized by law in official criminal investigations and as a licensee you have a statutory duty to cooperate by furnishing the requested information. Be aware, however, that the Tracing Center is a part of BATF's criminal enforcement apparatus whose function (and principal interest) is to put people (including firearms dealers) in jail. You should always obtain the full name and telephone number of the caller and note it in writing. An entry in your bound book alongside the entry for the firearm involved would not be inappropriate. If in doubt about the caller's identity, you should terminate the call and call back before giving any information. Cooperation would include supplying copies of any related documents. Never surrender an original document or legally-possessed firearm (or other property for that matter) except in response to a summons, subpoena, or court order, and then only after obtaining legal advice.
When faced with the prospect of providing information to the government, keep in mind that there are only two legal options: silence or complete truthfulness. Lying (even by partial truths or literal but misleading true answers) is never an option. A false statement to a federal officer in his official capacity is a felony akin to perjury, and usually much easier to prosecute and prove than the matter being investigated. If you cannot speak truthfully without incriminating yourself or injuring your legal interests, then remember RULE ONE.
If the inquiry is about a Title II firearm, you should attempt to determine if the trace was initiated by local law enforcement. If it was, you should remind the caller that the information requested is privileged tax information and that it is a federal felony for BATF to disclose the information outside the agency. Your interest in this aspect is that you do not wish to aid and abet the commission of a felony -- even one committed by a federal official.
Occasionally a tracing inquiry will be made in person by one or more special agents. They are, of course, purely criminal investigators whose only function (and interest) is to put people (including firearms dealers) in jail. Write down the names and badge numbers of all present. If anyone present is not a BATF special agent, inquire why that person is present (and later note the response in writing). If there is more than one agent, inquire why. If anyone refuses to display official identification direct them to immediately leave the premises. If they refuse, call the local sheriff or police and make a trespassing complaint.
Do not allow anyone to search your records, premises or inventory for the information or items being sought. You or your employee do the searching, retrieving and copying. The same rules apply with respect to refusing to turn over original documents or items of personal property. If an agent should physically insist on taking custody of an original record or legally-possessed firearm or other item of property, resist verbally and vigorously, but not physically. Advise him calmly that your first call after he leaves will be to your lawyer and his first call will be to the Inspector General of the Treasury Department. Successive calls will then also be made to BATF's Office of Internal Affairs, the agent's SAC (Special Agent in Charge), the United States Attorney, the FBI and the sheriff -- the latter three to report the theft of your property by a federal agent. Then do it. In short, if an agent is stupid enough to violate your Fourth Amendment right to be secure in your papers and effects in front of God and everybody, then he needs to have his whole day ruined.
A tracing inquiry is usually directed at a third party recipient of a firearm which has passed through your hands at some point and generally is not targeted at you. However, if you sense that the inquiry is, in fact, targeted at you, you should immediately terminate the inquiry, ask the agents to leave the premises (after which they are legally trespassers), request them to put their inquiry in writing, and seek legal counsel. Remember RULE ONE.
Failure to cooperate in a tracing request can put your license at risk, but loss of a license (or the expense of defending it) compares very favorably with a prison sentence (or the cost of defending a criminal indictment). And your license is not realistically at risk if BATF is trying to further a criminal investigation of you through a pretext tracing inquiry. The majority of all inmates talk their way into prison; you have no legal obligation to help put yourself there. This type of confrontation is an IQ test. Don't flunk it; remember RULE ONE.
Clients occasionally inquire about tape-recording their telephone or in-person conversations with BATF employees (and others). This is legal under federal law so long as one party to the conversation (you) knows of the interception. However, state laws vary on the issue and you should be certain that such consensual recording is legal under the law of the state where the recording is taking place. You should never record a conversation (telephone or otherwise) where no one present knows of the interception. This is a felony violation of the federal wiretapping statute, and you are creating the very evidence needed to prove it. You can, of course, legally tape-record any transaction in any jurisdiction when all parties are aware of the taping. Any such tape should itself reflect that all present are aware of the taping.
You should never knowingly consent to your own interview or conversation being tape recorded without making a tape of your own. More important, the taping of your interview is a strong signal to invoke RULE ONE and immediately seek legal counsel.
2. The Third-Party Inquiry. A third-party inquiry is broader than a simple tracing inquiry, but otherwise involves the same principles and recommended reactions. It could be a telephone call, but will ordinarily be a personal visit by one or more special agents who are after more detailed information than just the acquisition and disposition of one or more firearms which have passed into or through your inventory. All other factors remain the same and your responses should be the same as for the in-person tracing inquiry.
Needless to say, if the inquiry is not about a third-party transaction but rather is directed solely at you, invoke RULE ONE and seek legal counsel immediately. Remember, refusing to talk to federal criminal investigators and seeking legal counsel are not admissions of guilt or signs of a guilty conscience. They are manifestations that you are an American citizen aware of your legal rights and an individual who will not be bullied, coerced or frightened into giving up those rights. The agents already believe you are guilty; their job is to prove it. Your job is to avoid helping them prove it.
3. The Undercover Solicitation. This may be a contact by BATF which, if you are fortunate, you never learn was made. It is a sad fact that a high percentage of non-violent federal gun crimes committed in the United States (perhaps even a majority) are manufactured by BATF -- crimes that would never have occurred but for the fact of an offer from or solicitation by a BATF informant or undercover agent to an unwitting citizen. Technically, most of these BATF-sponsored offenses do not rise to legal entrapment. But they would never have happened if BATF had not planted the idea and created the opportunity. This is done for the simplest and ugliest of all bureaucratic reasons: agent and agency self-preservation and budget and case statistics.
Sometimes you will know you are being shopped -- perhaps by recognizing the agent or perhaps by the sheer stupidity of the approach. You are probably also being recorded, possibly even videotaped. Your response should be precisely the same whether it ultimately turns out that you were speaking to a government microphone or to the village idiot. You should firmly, but not politely, advise the proponent that what he/she is proposing is illegal and that he/she is no longer welcome on your premises or at your table. Then remember RULE ONE. Do not engage in a discussion of the law or alternative solutions to the "customer's" proposal; terminate the conversation. Politeness is not called for when someone is either intentionally or ignorantly soliciting you to commit a federal felony. And your politeness on a federal tape recording in a subsequent criminal prosecution can often be construed as acquiescence in or lack of strong feeling about committing a crime.
Some of my bolder clients, who are truly tired of being harassed this way, are fully prepared to make a citizen's arrest in such circumstances and then call the local sheriff to come collect the offender (attempts and solicitations to commit an offense are also crimes under federal and state law). If this appeals to you, make sure first that the law of your state permits a citizen's arrest. Know the amount of legal force you can use to effect such an arrest. Then cuff the son of a bitch and give him a taste of what he's probably trying to do to you.
A criminal solicitation by someone you've known for years, and who you know cannot be an agent, is especially dangerous. It probably means that your acquaintance has gotten his own tail in a crack and is now making cases for BATF in an attempt to lighten his own load. Finally, bear in mind that an undercover approach may be made by a female agent or by a mixed couple.
4. The Compliance Inspection. Compliance inspections are conducted by inspectors of the regulatory enforcement branch of BATF. These individuals have no criminal law enforcement authority -- or training (although they have recently been issued badges, perhaps in an effort to bolster morale or create an appearance of authority for low-paid personnel). Theoretically, inspectors are charged with the civil and regulatory aspects of firearms law. They do not have the power of arrest or the authority to serve subpoenas or warrants. Nor may they make seizures of any kind. I say "theoretically" because in some recent instances inspectors have been observed accompanying special agents on raids and even illegally carrying firearms. In short, there are some cop wannabes among the inspector force whose intrinsic suspicion of firearms dealers as criminals must be guarded against.
The legally-authorized purpose of compliance inspections (and pre-licensing inspections) is to ensure that the firearms statutes are generally being complied with by the firearms industry. The true job of inspectors is to spot and correct discrepancies in compliance with federal firearms statutes, to establish the qualifications of license applicants, and to enforce and collect the excise tax on the manufacture and importation of firearms. If an inspector discovers evidence of a criminal violation he is supposed to make a referral to the criminal enforcement branch of BATF (the special agents).
As a licensee you are required to display your license on your licensed premises, to maintain certain required books and records accurately, and to submit to a compliance inspection of your licensed premises, your inventory and your required records as often as once annually.
The only firearms records which you are required by law to maintain, and to submit for inspection, are an acquisition and disposition book (your bound book), original BATF Forms 4473, "Firearms Transaction Record" for each firearm sold, original BATF Forms 5300.35 "Statement of Intent to Obtain a Handgun(s)" (the Brady Act form), and your retained copies (copy 4) of BATF Forms 3310.4, "Report of Multiple Sale or Other Disposition of Pistols and Revolvers" for each multiple sale of handguns. Special occupational taxpayers may also be required to produce their Forms 2, 3, 5, 6 and 10 for firearms on hand. There may be additional state law records required of a dealer, but BATF has no jurisdiction over these records and arguably no jurisdiction to inspect them.
When a BATF inspector shows up for a compliance inspection, require credentials to be displayed by everyone present and note the full name of the inspector(s) in writing. Never permit a special agent or a state or local or non-BATF federal official to participate in a compliance inspection. These individuals have no authority under the inspection laws, and are there for some different (and more ominous) reason. A state official might have independent state-law authority to conduct an inspection or investigation, but he has no right to do it in tandem with a BATF compliance inspection. You should require other inspectors or investigators to get in line so that you can deal with them at a separate time. If they refuse to leave, call the sheriff and swear out a trespassing complaint. If a BATF special agent, a firearms specialist from BATF's Technology Branch in Washington (part of the criminal enforcement branch), or other criminal law enforcement type is present, this is not an ordinary compliance inspection and you should immediately terminate it, direct the individuals to leave and contact legal counsel.
BATF inspectors can inspect at any time during your listed business hours, without prior notice or appointment. If they do not give you advance notice then restrict their inspection activities to your listed hours. If you are subjected to an unannounced inspection, be on guard. You may be under suspicion or you may be dealing with one of the cop wannabes. If the inspector has the courtesy to advise you ahead of time of an intended inspection you are free to, and should, accommodate the time, date and hours of inspection to the inspector's convenience. You should never consent to more than one compliance inspection in any twelve-month period. Require BATF to obtain an inspection warrant and immediately seek legal counsel.
Under general principles of law a compliance inspection must be "reasonable" in terms of time, duration, scope, number of inspectors, lack of disruption to your business, etc. If the inspector is reasonable and professional, you should be too. The process does not have to be adversarial or antagonistic. If the inspector is not reasonable or professional, keep in mind that your license does not require you to talk to him, or to provide him access to your copy machine, rest room, etc. If you are dealing with an idiot, remember RULE ONE -- and let him bring his own copy machine. Also remember that he has no right to use your electricity.
The inspector is legally entitled to inspect all your required records, your business premises, and your firearms inventory. He is legally entitled to inspect nothing else. You should not permit inspection of non-required records unless there is a satisfactory explanation of why it is desired (such as inspecting a purchase or sale invoice for the correct serial number where the bound book and the Form 4473 show different serial numbers for the same firearm). You should not permit inspection of non-business portions of the premises when your home is the licensed premises. (When your business is conducted from your home, you should carefully delineate that portion dedicated to the firearms business and confine the business strictly to that portion of the premises.)
You should accommodate the inspector by making copies of any records desired (within reason). Never permit original records (or firearms or other property) to be removed from the premises without a summons, subpoena or court order, and without seeking legal counsel. The inspector has no power of seizure and may attempt to bluff his way into removing original records or may try to obtain your consent. Do not be bluffed and do not consent. Inspections should be conducted on your premises. (If you store firearms off premises, the inspector is also entitled to inspect such storage facilities.)
A compliance inspection of a special occupational taxpayer will begin with the inspector attempting to reconcile his NFA Branch printout of Title II firearms shown as registered to you in BATF's records with the actual Title II firearms in your possession. He will be unable to do so because of the abysmal state of the national registry. Have mercy on him and help BATF untangle its records. Try to refrain from thinking about whose records and recordkeeping should really be under audit here. The inspector will also likely need your technical expertise in identifying anything more esoteric than a rifle, pistol or shotgun. Try to conceal your contempt for a "federal firearms inspector" who probably doesn't know a wipe from a baffle, or a lightning link from a drop-in sear, and who may think a Mauser broomhandle is something used by a German hausfrau.