Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) Modernization and Reform Act of 2006

Mr. Speaker, at the outset, I yield 3\1/2\ minutes to the gentleman from Virginia (Mr. Scott), even though he is in support of the bill.

Mr. Speaker, this bill says that its purpose is to, and I quote, modernize and reform, unquote, the Bureau of Alcohol, Tobacco, Firearms, and Explosives.

But what it really does, under the guise of so-called modernization and reform, is to make it virtually impossible for Federal law enforcement officers in the ATF to revoke the licenses of those gun dealers who have violated the gun laws. It guts their power to go after the worst offenders.

You don't have to take my word for it. Let me just read to you from the first paragraph of a letter that was sent to Members of Congress on June 30 of this year:

As former officials of the Bureau of Alcohol, Tobacco,

Firearms, and Explosives, we write to urge you to oppose H.R.

5092, the so-called ATF Modernization and Reform Act. Far

from modernizing ATF, this legislation would severely

undermine the Bureau and protect corrupt gun dealers and gun

traffickers. If passed, this bill would make it extremely

difficult for ATF to successfully prosecute gun traffickers

and dealers who break the law or to revoke dealers' licenses.

They go on to specifically point out that the requirement that the ATF prove that a gun trafficker or corrupt gun dealer not only broke the law, only specifically intended to break the law, would make it virtually impossible for ATF to successfully enforce our Nation's gun laws. That is signed by a number of former members of the ATF, including two of the former directors of ATF.

Let me also quote from David DiBetta, who is an 18-year veteran of the ATF and who is President of the Federal Law Enforcement Officers Association's ATF Division. He said it very simply: ``It could be crippling.''

Look, people have said when various Members of Congress have proposed new gun safety laws. They have said, just enforce the laws on the books. And we need to enforce the laws on the books. So what is especially troubling is that we are here today not to increase enforcement of the laws on the books but to weaken the ability of Federal law enforcement officers to go after the worst offenders.

I find it somewhat puzzling that we are gathered here in what has been dubbed by some so-called ``Security September'' to consider a bill that ties the hands of Federal law enforcement officers and gives a break to those few bad apples among the gun dealers who sell mostly to the criminal market. That is what is especially puzzling.

According to the ATF itself, nearly 60 percent of the guns that are sold to the criminal market are sold by just 1 percent of the gun dealers. The vast majority of people who are selling guns in this country are honest, law-abiding citizens. But this bill isn't designed to help them. This bill will help those who are the worst violators.

In a little bit I am going to go into how this impacts my State of Maryland where the ATF has been trying to revoke the license of one of the worst violators. But he ran down here to Capitol Hill to lobby against the ATF officials, and here we are on the floor. His voice seems to have a stronger influence than the voice of so many law enforcement officers who are out here, as well as others.

I will just close this portion with this. This has also been presented to us, this bill, as part of the so-called ``American Values Agenda.'' This bill is part of the American Values Agenda. And I just want to know, Mr. Speaker, since when did protecting the worst violators of the law become part of an American value?

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield such time as he may consume to the gentleman from Michigan (Mr. Conyers).

Mr. Speaker, let me thank my colleague from Michigan, the ranking member of the Judiciary Committee, Mr. Conyers, for his leadership on this and for pointing out the law enforcement agencies that are opposed to this important legislation and in favor of the arguments that we put forth in opposition. And, again, I just cite from David DiBetta, who is the president of Federal Law Enforcement Officers Association ATF division, who said: ``This bill would be crippling to their efforts to enforce our gun laws.''

International Brotherhood of

Police Officers,

Alexandria, VA, September 20, 2006.

U.S. Congress,

Washington, DC.

Dear Representative: The International Brotherhood of

Police Officers (IBPO). representing federal, state and local

police officers around the country, strongly opposes H.R.

5092, the Bureau of Alcohol, Tobacco, Firearms and Explosives

(ATF) ``Modernization and Reform'' Act. This senseless

legislation would serve only to cripple law enforcement's

ability to track and prevent the flow of illegal guns across

the country.

H.R. 5092 diminishes the ATF's ability to revoke, suspend

or fine gun dealers by unnecessarily raising the standard of

proof required for adverse action from federal investigators

against gun dealers who blatantly violate federal law

regulating the sale and transfer of guns.

In addition, H.R 5092 reclassifies serious violations of

federal gun to lesser or ``minor'' violations resulting in

negligent or criminal dealers being held to a lower standard,

and in some cases, giving them a free ride because guns

claimed as ``lost'' from their inventory would be impossible

to trace if recovered at a crime scene.

Another shameless provision of H.R. 5092 would allow gun

dealers whose licenses have been revoked for violations of

federal law to continue operating for 60 days after

revocation. The ATF would have to allow these negligent or

criminal gun dealers to continue to sell guns for 60 days

after issuing a revocation.

The IBPO stands strongly against H.R. 5092 because of its

detrimental effects to proven, successful crime fighting

tools used by federal agents and local police. A vote for

H.R. 5092 in any form is a vote against police officers and

it's a vote against the safety of our communities. H.R. 5092

serves no justifiable purpose to law enforcement or

legitimate gun owners.

We urge you to vote against this unnecessary and dangerous

legislation.

Respectfully,

Steve Lenkart,

Director of Legislative Affairs.

Mr. Speaker, I urge opposition to the bill.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, on that I demand the yeas and nays.

Mr. Speaker, I appreciate this opportunity to explain my concerns with the bill, H.R. 5092. My primary concern with the bill is that it hampers the ability of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATF) to put corrupt gun dealers out of business, and thus help reduce the carnage taking place in many of the Nation's major urban centers.

H.R. 5092 was introduced by Mr. Coble and Mr. Scott as a bipartisan attempt to address enforcement issues raised during ATF oversight hearings conducted by the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security. Specifically, those hearings focused on ATF's Richmond gun show enforcement program and generally on ATF's licensing and revocation authority over Federal Firearms Licensees.

The bill addresses a number of issues relating to ATF's enforcement authority, including authorization of civil penalties (e.g., fines and suspensions); creation of independent Administrative law Judges to hear enforcement cases; definition of serious and non-serious violations; DOJ Inspector General investigation of ATF gun show enforcement program; limitation on ATF authorities; clarification of several enforcement regulations; and, most significantly, modification of the requisite intent for violations.

The bill provides in Sec. 4, entitled ``Definition of Willfully,'' that ``willfully'' is defined as: ``intentionally, purposely, and with the intent to act in violation of a known legal duty. ``

My concern with this provision of the bill is that it defines ``willfully'' to impose a much higher standard of proof upon law enforcement officials than currently. There does not appear to be any compelling reason for increasing the government's evidentiary burden at this time. The definition of willfullness is well-settled in the law and means that defendant knew his conduct was unlawful; not that he knew of the specific statute he is accused of violating or had the specific intent to violate that precise provision.

Mr. Speaker, changing the evidentiary standards governing elements of penal offenses should be done sparingly and with the utmost care. This is particularly true where, as here, we do not have the benefit of the considered views of thoughtful criminal law scholars, experienced prosecutors and police officers with front-line experience, or the Department of Justice.

The redefinition of ``willfully'' contained in the bill illustrates my concern. As I noted, the bill defines willfully as ``intentionally, purposely, and with the intent to act in violation of a known legal duty.'' This definition, however, has been repeatedly rejected by the Federal courts. Bryan v. U.S., 524 U.S. 184 (1998); U.S. v. Andrade, 135 F.3d 104 (1st Cir. 1998); U.S. v. Allah, 130 F.3d 33 (2d Cir. 1997); U.S. v. Collins, 957 F.2d 72 (2d. 1992)

In the Bryan case, the defendant was convicted of willfully dealing in firearms without a Federal license. Specifically, the defendant did not have a Federal firearms license; he used ``so-called ``straw purchasers'' in Ohio to acquired pistols he could not have bought himself; that he knew the straw purchasers made false statements when purchasing the guns; that defendant assured the straw purchasers that he would file off the serial numbers; and that defendant resold the guns on Brooklyn street corners known for drug dealing. Despite this conduct, defendant claimed that he could not be convicted under the Federal firearms laws unless the government proved he knew of the Federal licensing requirement. The Supreme Court rejected this claim, stating:

``the willfulness requirement . . . does not carve out an

exception to the traditional rule that ignorance of the law

is no excuse; knowledge that the conduct is unlawful is all

that is required.'' 524 U.S. at 193.

Similarly, in another case, U.S. v. Collins, the Second Circuit rejected the argument that willfully requires proof that defendant had specific knowledge of the Federal firearms license requirements, stating:

``[T]he element of willfulness not contained in

Sec. 922(a)(l) was meant to be read broadly to require only

that the government prove that defendant's conduct was

knowing and purposeful and that the defendant intended to

commit an act which the law forbids.'' 957 F.2d at 76.

According to the court, the government was not required to prove more than just the defendant's general knowledge that he or she is violating the law.'' Id. at 75.

Other courts have reached similar conclusions and I list them in my statement. The point, Mr. Speaker, is that the Federal firearms license statute is and has been an important tool for law enforcement to crack down on the illegal trafficking in firearms and the wanton violence this conduct exacerbates. I do not believe that a compelling case has been made on this record to take this tool away from law enforcement. Neither does the American Bar Association nor several former directors of the ATF. Therefore, I would urge my colleagues to vote against the bill.

Mr. Speaker, at this time I yield to my friend, the majority leader, Mr. Boehner, for the purposes of inquiring about the schedule for the week to come.

I thank the gentleman for that information. To clarify, am I correct that the three bills that you mentioned prior to the mentioning of the last conference report, the NIH authorization bill, the Open Space and Farmland Preservation Act, and the Bureau of Alcohol, Tobacco and Firearms Modernization Reform Act, am I correct they will all be suspension bills?

I thank the gentleman.

On the schedule, last week we talked about the 29th being the target date, and that we were going to get out on the 29th. But that being Friday, we might go over to Saturday if we did not finish on Friday, and we have advised Members to make sure that their Saturday schedule was flexible to accommodate that. But can you clarify that additionally as to what your thoughts are and the possibility of being here on Saturday?

I yield to my friend.

I thank the gentleman for that information.

It reminds me that before we had a court of appeals opinion in Maryland, before I went to the Senate, constitutionally you had a 90- day session, but as you point out, on the last day you weren't quite sure how long that last day would be.

I hear you. I will advise our Members not to have Friday night planes scheduled, and to have maybe a little later Saturday scheduled, maybe well into the morning.

November is when we will next reconvene, it is my understanding. You previously indicated that after we have our last votes, the House will not be in session again until Monday, November 13. Is that still your intention?

I yield to my friend.

What can you tell us about the rest of the November and December schedule so that Members might be planning for that as well? Are we likely to have votes on Friday, the 17th, for example; and what about the following week and Thanksgiving week?

I thank the gentleman for that information. We understand it has to be tentative, and we understand that the leader cannot anticipate exactly what will and will not pass within certain time frames. We appreciate sort of the ballpark estimate of what would be available for time if we need it.

You have not noted, but there has been a lot of talk about tax- related legislation and speculation as to whether or not we will consider any tax or trade-related legislation, for example, the tax extenders, prior to leaving for the elections. It is not on your schedule. Do you have any expectation that we would be considering prior to the election, not after the election but prior to, any tax legislation, extenders or otherwise?

You do not. Thank you.

There is noted on the calendar a bill which is the Child Interstate Abortion Notification Act. Would it be your expectation there would be any other legislation prior to the election dealing with that subject, abortion?

I thank you for that.

You mentioned we are going to have, and you are going to try to pass a rule, I suppose, to give you suspension authority all of next week. Are there any other bills that you are contemplating bringing up under suspension? You noted the three that we discussed. Are there any others?

I yield to my friend.

It is a challenge, isn't it, Mr. Leader?

I thank the gentleman. I understand there are a lot of bills that are possible, and we appreciate that fact and appreciate his working with us to try to accommodate Members on both sides.

Two last things. Mr. Goodlatte and Mr. Peterson have been very concerned, as you know, about the drought and the stress that many of our farmers in rural areas of our country have been experiencing. There has been a lot of discussion about assistance that we could give. Is there any contemplation that next week we might be able to consider an emergency disaster assistance bill, H.R. 5099, that will help our farmers and ranchers who have been badly hurt by floods, droughts and other natural disasters?

I appreciate that.

The last question will not come as a surprise to you, I know. We still have yet to pass one appropriation bill.

We have passed the others, but it is still out there. It is a large bill that deals with the education of our children, the health of our people, and the ability of our working people to succeed. I know that there is great attention being given to that bill. We are hopeful that it will come to the floor, and we are hopeful when it comes to the floor, there will be an opportunity to vote up or down on increasing the minimum wage over a period of time. Is there any hope or expectation that that bill might come to the floor?

I thank the gentleman. Reclaiming my time, we would hope that you would continue to consider that.

Mr. Speaker, I thank the distinguished gentleman from Maryland, who has put so much of his time and intelligence into an examination of H.R. 5092, which is called the ``Modernization and Reform Act.''

This bill is taken up as the reported incidence of gun violence continues to rise. It is truly unfortunate that some would advance a proposal such as this, because this measure only threatens to make a troubling situation even more problematic.

Earlier this month, the Department of Justice told us that criminal gun violence grew by nearly 50 percent between the years 2004 and 2005. And up until now, what has been the majority's response to this growing epidemic? Well, simply to take up a bill that will only lead to an additional increase in the number of illegal firearms that on a daily basis constantly go on our streets and communities.

The measure before us, ladies and gentlemen, promises to all but eliminate the ATF's current authority to revoke the Federal firearms licenses of corrupt dealers. If enacted, it would make it virtually impossible for ATF to shut down rogue gun dealers by elevating current burden of proof requirements beyond that of any other major industry.

So let us understand: This is not about going after honest firearms dealers, which constitute the majority of those in the trade. It is not about that. This is about giving a break to the rogue dealers.

This is what is a bit disturbing, because we create in this proposal two vague classifications of gun laws: the serious and the non-serious. It allows for license revocation only for serious violations. But it, unfortunately, defines these violations in such a way that enforcement would be extremely rare.

It excludes many violations that are, in fact, quite dangerous, such as when a gun dealer has numerous weapons lost from its inventory with no record of sale. The bill would require Alcohol, Tobacco and Firearms to automatically stay or postpone the imposition of a fine, a suspension or revocation pending completion of an administration hearing, no matter how egregious the violation.

This standard strongly favors the violator and should be changed so that the alleged violator is required to prove the likelihood of the success of his challenge, as is the current practice for most civil proceedings.

Keeping dangerous firearms out of the hands of violent criminals continues to be one of the most pressing concerns of our Nation. I know somebody besides me is going to talk about the newly released data that shows a total of 3,012 children and teens were killed by gunfire in the United States in one year. That roughly comes out to approximately one child every 3 hours, eight children every day, and more than 50 children every week.

This is what we are legislating under a suspension of the rules. I predict that this suspension is in big trouble, because more and more people are listening to the remarks of the gentleman from Maryland, who has made it clear that most of the community that enforces gun laws is against this.

Now, let's look at it globally. American children are more often at risk from firearm-related injuries and fatalities than any other industrialized nation on the planet. Firearms were reportedly used to kill 19 young people in Great Britain, 57 in Germany, 153 in France, and a staggering 5,285 children in the United States.

As a concerned Member of Congress who serves on this committee, we need to do more to protect our children, and not less. To protect our children and adequately address such problems, we must empower the ATF with the necessary tools and resources to properly police unscrupulous firearms dealers. That is what this measure is about. Unfortunately, the proposals contained therein have taken us in the opposite direction.

So I conclude by pointing out why I join in opposition to this measure. Because the International Brotherhood of Police Officers is against this measure, because the International Association of Chiefs of Police is opposed to this measure, because the Major Cities Chiefs of Police is opposed to this measure, and because the Attorney General of California and two former directors of the Bureau are opposed to this measure.

So I urge my colleagues to let common sense prevail and let the interests of our citizens trump the rogue dealers who have a mysterious way of keeping losing weapons in their inventory with no record of sale. We are on to them. We know what it means. Nobody here is that naive.

So here, ladies and gentlemen, is going to be a very important test, and I hope that the majority of those that will vote on this measure will join me in causing a defeat in the suspension of this measure,

Mr. Speaker, I have to say, in my 10 years in Congress I have never seen a bill with a more misleading name than this legislation. Instead of modernizing or reforming the ATF, it makes it tougher for ATF to crack down on illegal guns. I know the vast majority of gun sellers are honest, and we know that. But why does Congress feel the need to protect the small minority who sell guns illegally?

This legislation ties the hands of the ATF in its dealings with 1 percent, you have heard that figure before, 1 percent. Why aren't we going after that 1 percent? I know the mayor of New York has been trying to go after that 1 percent, because in New York that is where the illegal guns are coming from, this 1 percent, and they are killing our police officers, they are killing our citizens. And you wonder why some of us get so up in arms about this.

We should be giving the ATF the tools to crack down on these illegal guns. The bill relaxes recordkeeping requirements by no longer requiring dealers to properly maintain the records. Not maintaining the records. Again, it was said by my colleague that we should be enforcing the laws on the books. All of us agree on that, and there is not one of us that is trying to take away the right of someone to own a gun. But, again, the NRA comes down here, and we hear on how many people have signed on to this bill. Actually, more than that will be there because they are petrified of the NRA. Why? Because the NRA will organize their members and basically just go after that Member if they dare to vote against them.

But even if the ATF is able to revoke a corrupt unlicensed dealer, this bill gives the dealer 60 days to sell off the remaining inventory. How crazy is that? You know, we hear constantly that we are after DWI drivers all the time. And if a tavern is proven to be selling constantly to underage drivers, they lose their license. They don't have any time to sell off all their liquor. I mean, let's have a little common sense here. I mean, we seem to be going backwards constantly in going forward in trying to protect our police officers and certainly our front liners out there.

Proponents of this bill will tell you that it is to protect honest gun sellers who are unfairly targeted by the ATF. I don't know why the gun dealers aren't standing up and saying let's go after these unscrupulous gun dealers. They are the ones who are giving them the bad name. The current law already protects honest dealers.

In fact, while the ATF regularly uncovers illegal acts of gun dealers, it is very rare that it is able to revoke their license. In fact, and the last we have is from 2003, the ATF found violations at more than 1,800 gun dealers in 2003. The ATF found an average of 80 violations. That is not an overlook, 80 violations, that is someone that is committing a crime at these gun dealers, but only issued license revocation notifications at 54.

The ATF is doing its job. It is looking at who the bad guys are and going after them. It is clear that only the worst violators lose their licenses. Every gun dealer who acknowledges selling a gun to a criminal reflects poorly on the entire gun industry. It is in the best interests of the gun industry that dishonest and negligent sellers are forced to shut their doors. This is a misguided piece of legislation that allows a small minority of corrupt gun sellers to continue to sell guns to criminals without penalties.

You know, we are starting to see crime go up continuously in our small communities, in our cities. We are seeing guns flooding our streets; we see gangs being able to buy guns illegally. Where are they coming from? Where are they coming from? Our police departments are seeing statistics going up constantly, and especially from 2005 to 2006. We have seen more police officers die in the line of duty killed by illegal guns. Why aren't we doing something to crack down on the illegal guns? That is what this country should be doing; that is what this Congress should be doing, and not certainly backing down to the NRA because we have an election coming up. This is juice for all their members. It is crazy.

You know, this debate on gun violence certainly since I have been here has gone backwards and backwards and backwards. We talk about how many people have died every year because of gun violence. A lot of that is accidental deaths, a lot of those are certainly guns that people have in their homes.

No one even talks about the survivors, how it is costing this health care system over $1 billion a year because of gun violence. We can do a better job. We should be doing a better job.