News reports have proclaimed in the last week that the Bureau of Alcohol, Tobacco, Firearms and Explosives has dropped its “zero tolerance” policy that has been fabricated by it as a tool to revoke licenses of gun dealers and manufacturers over “paperwork errors”. A careful read of the ATF’s new, albeit heavily redacted, revision of the policy suggests that might not be a safe conclusion.
On June 23, 2021, the “Biden-Harris Administration” announced a purported “Comprehensive Strategy to Prevent and Respond to Gun Crime and Ensure Public Safety.” Part of that administrative strategy was “establishing zero tolerance for rogue gun dealers that willfully violate the law,” described as “a new policy to underscore zero tolerance for willful violations of the law by federally licensed firearms dealers that put public safety at risk. Absent extraordinary circumstances that would need to be justified to the Director, ATF will revoke the licenses of dealers the first time that they violate federal law by willfully 1) transferring a firearm to a prohibited person, 2) failing to run a required background check, 3) falsifying records, such as a firearms transaction form, 4) failing to respond to an ATF tracing request, or 5) refusing to permit ATF to conduct an inspection in violation of the law.”
The “zero tolerance” and presumptive revocation of federal firearms licenses remains clearly established in the ATF’s most recent “Adverse Action Policy” – ATF O 5370.1G. The “zero tolerance” provisions are in Section 7.a.2. which provides – “Enhanced Regulatory Enforcement Policy (EREP). Consistent with the President’s directive on enhanced regulatory enforcement, ATF has zero tolerance for willful violations that put public safety at risk and will take appropriate administrative action. Therefore, a Notice to Revoke, absent extraordinary circumstances, will be issued in response to the discovery of evidence of the following willful EREP violations: ” Each of the 5 “deadly sins” identified in the Biden administration’s mandate to the ATF are retained in the ATF’s most current Adverse Action Policy. Indeed, in Section 7.a.3 of ATF O 5370.1G, the ATF has now included ten additional violations that are “generally recommended” to result in license revocation.
The perhaps carefully worded news reports suggesting the end of the Biden era “zero tolerance” may be an attempt to highly an interpretation of the ATF’s newest Adverse Action Policy regarding the ATF’s practice of revoking licenses for what is known as “repeat violations” and which normally include violations that some would classify as mere human errors, typos or inadvertent mistakes. In the past, these have included instances of writing down the wrong year when entering dates in January for example, e.g., writing January 22, 2024, when the context clearly establishes that the correct date is January 22, 2025.
However, the new policy clearly retains the repeat violations standard. Section 7.a.1.b provides, for example: “Not every repeat violation is per se willful. A single, or even a few, inadvertent errors in failing to complete forms may not amount to “willful” failures even where the legal requirement to complete the forms was known. However, when such errors continue or increase after warning, strong evidence may exist that the FFL is plainly indifferent to its legal obligations. This is a fact-specific inquiry for which Field Counsel can assist in applying the district’s governing law to the facts.”
The key term is “wilful” and ATF states in its Adverse Action Policy that the fact that these inadvertent errors occur can be treated as willful violations if, for example, a) the licensee has complied with the requirement in other instances, b) the licensee has been provided with “publications, training and information” on how to comply with the requirement (i.e., how to complete the form or record), or even c) the licensee’s prior compliance history. See, Section 7.a.1.
Nothing in the ATF’s new Adverse Action Policy suggests, even remotely, that human errors, typos, or simple record keeping errors will not longer result in revocations.
Why is this important to Tennesseans?
It is important because the ATF has been zealous and reports publicly on how many federal licensees have been revoked as a result of this enhanced enforcement policy. Since the policy went into effect, it claims to have revoked 397 federally licensed dealers (many in Tennessee) and it claims that another 247 “voluntarily” surrendered their licenses.
It is important to ask Tennessee’s Congressional members what each of them have done to stop the ATF’s attack on the Second Amendment Supply Chain.
It will also be important to pay careful attention to that Trump and his appointees do with respect to the ATF, is continued existence and its activities.
One thing is certain, however, the Biden era enhanced enforcement mandate continues to exist and ATF will continue using it to infringe your rights unless Trump, Tennessee’s two Senators, and its members of the House of Representatives take action to eliminate or at a minimum curtail the ATF going forward.
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