[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
HEARING ON THE WEAPONIZATION OF THE
FEDERAL GOVERNMENT
=======================================================================
HEARING
BEFORE THE
SELECT SUBCOMMITTEE ON THE WEAPONIZATION
OF THE FEDERAL GOVERNMENT
OF THE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
WEDNESDAY, MAY 22, 2024
__________
Serial No. 118-80
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
55-793 WASHINGTON : 2024
COMMITTEE ON THE JUDICIARY
JIM JORDAN, Ohio, Chair
DARRELL ISSA, California JERROLD NADLER, New York, Ranking
MATT GAETZ, Florida Member
ANDY BIGGS, Arizona ZOE LOFGREN, California
TOM McCLINTOCK, California SHEILA JACKSON LEE, Texas
TOM TIFFANY, Wisconsin STEVE COHEN, Tennessee
THOMAS MASSIE, Kentucky HENRY C. ``HANK'' JOHNSON, Jr.,
CHIP ROY, Texas Georgia
DAN BISHOP, North Carolina ADAM SCHIFF, California
VICTORIA SPARTZ, Indiana ERIC SWALWELL, California
SCOTT FITZGERALD, Wisconsin TED LIEU, California
CLIFF BENTZ, Oregon PRAMILA JAYAPAL, Washington
BEN CLINE, Virginia J. LUIS CORREA, California
KELLY ARMSTRONG, North Dakota MARY GAY SCANLON, Pennsylvania
LANCE GOODEN, Texas JOE NEGUSE, Colorado
JEFF VAN DREW, New Jersey LUCY McBATH, Georgia
TROY NEHLS, Texas MADELEINE DEAN, Pennsylvania
BARRY MOORE, Alabama VERONICA ESCOBAR, Texas
KEVIN KILEY, California DEBORAH ROSS, North Carolina
HARRIET HAGEMAN, Wyoming CORI BUSH, Missouri
NATHANIEL MORAN, Texas GLENN IVEY, Maryland
LAUREL LEE, Florida BECCA BALINT, Vermont
WESLEY HUNT, Texas
RUSSELL FRY, South Carolina
Vacancy
------
SELECT SUBCOMMITTEE ON THE WEAPONIZATION OF THE
FEDERAL GOVERNMENT
JIM JORDAN, Ohio, Chair
DARRELL ISSA, California STACEY PLASKETT, Virgin Islands,
THOMAS MASSIE, Kentucky Ranking Member
ELISE M. STEFANIK, New York STEPHEN LYNCH, Massachusetts
MATT GAETZ, Florida LINDA SANCHEZ, California
KELLY ARMSTRONG, North Dakota DEBBIE WASSERMAN SCHULTZ, Florida
W. GREGORY STEUBE, Florida GERRY CONNOLLY, Virginia
DAN BISHOP, North Carolina JOHN GARAMENDI, California
KAT CAMMACK, Florida SYLVIA GARCIA, Texas
HARRIET HAGEMAN, Wyoming DAN GOLDMAN, New York
WARREN DAVIDSON, Ohio JASMINE CROCKETT, Texas
RUSSELL FRY, South Carolina
CHRISTOPHER HIXON, Majority Staff Director
CAROLINE NABITY, Chief Counsel for Oversight
AARON HILLER, Minority Staff Director & Chief of Staff
CHRISTINA CALCE, Minority Chief Oversight Counsel
C O N T E N T S
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----------
Wednesday, May 22, 2024
OPENING STATEMENTS
Page
The Honorable Jim Jordan, Chair of the Select Subcommittee on the
Weaponization of the Federal Government from the State of Ohio. 1
The Honorable Stacey Plaskett, Ranking Member of the Select
Subcommittee on the Weaponization of the Federal Government
from the Virgin Islands........................................ 3
WITNESSES
Ryan M. Cleckner, former Army Ranger, Co-Founder, Gun University
LLC
Oral Testimony................................................. 7
Prepared Testimony............................................. 10
Andrew Graham, former Deputy Assistant Director (DAD),
Enforcement Programs Services, ATF
Oral Testimony................................................. 13
Prepared Testimony............................................. 15
Kelly Sampson, Senior Counsel, Brady United
Oral Testimony................................................. 20
Prepared Testimony............................................. 22
The Hon. Bud Cummins, Attorney, representing the Bryan
Malinowski's family
Oral Testimony................................................. 28
Prepared Testimony............................................. 31
LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING
All materials submitted for the record by the Select Subcommittee
on the Weaponization of the Federal Government are listed below 69
A search warrant from the United States District Court, Eastern
District of Arkansas, submitted by the Honorable Dan Goldman,
of the Select Subcommittee on the Weaponization of the Federal
Government from the State of New York, for the record
Materials submitted by the Honorable Stacey Plaskett, Ranking
Member of the Select Subcommittee on the Weaponization of the
Federal Government from the Virgin Islands, for the record
A letter to the Honorable Jim Jordan, Chair of the Select
Subcommittee on the Weaponization of the Federal
Government from the State of Ohio, May 21, 2024, from the
U.S. Department of Justice Bureau of Alcohol, Tobacco,
Firearms and Explosives, for the record
An affidavit from the United States District Court, Eastern
District of Arkansas, Mar. 24, 2024
A letter to Detroit Gun Factory, LLC, May 5, 2022, from the
U.S. Department of Justice Bureau of Alcohol, Tobacco,
Firearms and Explosives
A letter to Detroit Gun Factory, LLC, Apr. 14, 2023, from the
U.S. Department of Justice Bureau of Alcohol, Tobacco,
Firearms and Explosives
A letter to the Honorable Jim Jordan, Chair of the Select
Subcommittee on the Weaponization of the Federal
Government from the State of Ohio, and the Honorable
Stacey Plaskett, Ranking Member of the Select
Subcommittee on the Weaponization of the Federal
Government from the Virgin Islands, May 23, 2024, from
the National Fraternal Order of Police
A report entitled, ``Report of Firearms Compliance
Inspection,'' U.S. Department of Justice, Bureau of
Alcohol, Tobacco, Firearms and Explosives
An executive summary entitled, ``97Percent Annual Gun Owner
Survey,'' Oct. 2023, Research Findings Executive Summary,
submitted by the Honorable Jamine Crockett, a Member of the
Select Subcommittee on the Weaponization of the Federal
Government from the State of Texas, for the record
APPENDIX
A statement from the Honorable Sylvia Garcia, a Member of the
Select Subcommittee on the Weaponization of the Federal
Government from the State of Texas, for the record
A statement from the Honorable Gerry Connolly, a Member of the
Select Subcommittee on the Weaponization of the Federal
Government from the State of Virginia, for the record
QUESTIONS AND RESPONSES FOR THE RECORD
Questions and responses from Kelly Sampson, Senior Counsel, Brady
United, submitted by the Honorable Sylvia Garcia, a Member of
the Select Subcommittee on the Weaponization of the Federal
Government from the State of Texas, for the record
HEARING ON THE WEAPONIZATION OF THE
FEDERAL GOVERNMENT
----------
Wednesday, May 22, 2024
House of Representatives
Select Subcommittee on the Weaponization of the Federal Government
Committee on the Judiciary
Washington, DC
The Committee met, pursuant to notice, at 10:07 a.m., in
Room 2141, Rayburn House Office Building, the Hon. Jim Jordan
[Chair of the Subcommittee] presiding.
Members present: Representatives Jordan, Issa, Gaetz,
Armstrong, Steube, Bishop, Cammack, Hageman, Davidson,
Plaskett, Lynch, Wasserman Schultz, Connolly, Goldman, and
Crockett.
Also present: Representative Hill.
Chair Jordan. The Subcommittee will come to order.
Without objection, the Chair is authorized to declare a
recess at any time. We welcome everyone to today's Hearing on
the Weapon-
ization of the ATF.
The Chair now recognizes the gentleman from North Dakota to
lead us in the Pledge of Allegiance.
All. I pledge allegiance to the Flag of the United States
of America, and to the Republic for which it stands, one
Nation, under God, indivisible, with liberty and justice for
all.
Chair Jordan. I thank the gentleman from North Dakota.
Without objection, the gentleman from Arkansas, Mr. Hill
will be permitted to participate in today's hearing for the
purposes of introducing a witness, which we will get to in just
a few minutes.
The Chair now recognizes himself for an opening statement.
In June 2021, just a few months after taking office,
President Biden directed the Justice Department to adopt a
zero-tolerance policy to revoke firearms--excuse me, Federal
firearms licenses from those who committed, quote, ``willful
violations of the law.''
That same month ATF updated its internal best practices
guide to State, quote,
ATF will, absent extraordinary circumstances, initiate
proceedings to revoke the license of any dealer that has
committed a willful regulatory violation of the Gun Control Act
for specified violations.
These willful violations now include purposefully broad
classifications like, quote, ``falsifying documents'' and
``failing to maintain records needed for successful firearms
tracing'' and would essentially allow the ATF to revoke the
licenses of FFLs for simple technical and nonmaterial paperwork
violations.
The ATF is zealously doing just that. The year after the
zero-tolerance policy went into effect ATF revoked over 90
licenses, more than any year since 2006. Last year that number
jumped to 157 FFL revocations. The year before zero tolerance
went into effect there were just 40 revocations.
To be sure, the Gun Control Act authorizes the ATF to
inspect FFLs to ensure they are compliant with record keeping
requirements and all other applicable laws and regulations.
That is so the government can ensure that there are no illegal
firearms transfers occurring, not for revoking licenses for
simple paperwork violations.
We have talked to some of the affected FFLs. We have even
talked to some who beat the ATF in court and were able to keep
their license. They told us it cost over $150,000 in fees to
keep their license. There is no way the average small business
can afford that much in legal and consulting fees and ATF knows
this.
The data shows this brazen scheme is working. The number of
voluntary business closures post inspection has risen sharply
from 24 in 2021, to 69 in 2022, and to 80 last year. This is
exactly what the left wants.
Democrats and Joe Biden have been trying to take guns away
from Americans for years. If they can't take the FFLs away,
they are going to limit the number--if they can't take the guns
away, they're going to limit the number of places where law-
abiding Americans can go purchase their firearms.
Today we'll examine the actions by ATF that led to the
untimely and unnecessary death of Bryan Malinowski. At this
time, I want to offer my condolences to the Members of Mr.
Malinowski's family.
Some of them are here with us today. We're also joined by
Congressman Hill, who I mentioned earlier, who represents Mr.
Malinowski and his family and has sought justice on their
behalf.
In the early morning hours of March 19, 2024, armed ATF
agents arrived at the Malinowski family home in at least 10
vehicles to execute a search warrant. According to the warrant,
the ATF alleged that Mr. Malinowski was selling firearms
without a license.
Footage from the Malinowski's doorbell camera shows ATF
agents approaching the house with riot shields and subsequently
disabling the camera to prevent their conduct from being
recorded.
On hearing the commotion and fearful of a home intrusion,
Mr. Malinowski awoke and prepared to defend his family. Mr.
Malinowski encountered what he and his wife believed to be home
intruders. An exchange of gunfire ensued. Mr. Malinowski was
shot in the head, and he died from his wounds two days later.
The circumstances of Mr. Malinowski's death raise questions
about whether the ATF followed proper protocol during the
execution of this search warrant. DOJ policy and President
Biden's Executive Order 14074 requires ATF agents including
those who conducted the search warrant on the Malinowski family
home to wear active body-worn cameras during the execution of
that warrant.
The department, however, has since confirmed to the
Malinowski family that ATF agents were not wearing body cameras
during the raid, a clear violation of the department policy.
It is also unclear whether ATF agents complied with Justice
Department policy on no-knock entries. In explaining the
rationale for this policy, Deputy Attorney General Lisa Monaco
noted that, quote,
Because of the risk posed to both law enforcement and civilians
during the execution of no-knock warrants it is important that
this authority be exercised in only the most compelling
circumstances.
Furthermore, Ms. Monaco directed the use of no-knock
entries should be restricted to instances in which an agent has
reasonable grounds to believe that at the time of the warrant--
that the warrant is sought that knocking and announcing the
agents' presence would create an imminent threat of physical
violence to the agent or to another person.
It's not clear if the raid was a no-knock encounter
because, in part, the ATF agents disabled the Malinowski's home
camera. ATF has yet to explain why it resorted to a risky
predawn entry of Mr. Malinowski's home when it could have
peacefully executed the warrant while he was away from his
residence. I think that's a huge question.
The ATF wanted Mr. Malinowski to be home when they executed
the search warrant. We know ATF abandoned a previous attempt to
execute the search warrant when they learned Mr. Malinowski
wasn't home. They were actually primed and ready to go the week
before but didn't go because he wasn't there.
Why did they need him to be in the home as this was a
search warrant and not an arrest warrant? In fact, there were
numerous other dangerous options--less dangerous options
available to the ATF.
The ATF knew his pattern of life. They could have chosen to
wait for Mr. Malinowski to leave for work and safely approached
him after he had exited his home.
The ATF could have conducted the raid after Mr. Malinowski
left for work and had other agents meet him at his work where
he was not allowed to carry a firearm.
The ATF could have waited until he was gone and asked Ms.
Malinowski to call him back after the house was secure. ATF
agents could have given Mr. Malinowski more time to answer the
door during the knock and announce, so he knew it was the
police.
Since the ATF chose to ignore their own policy, not wear
body cameras, we will never know if they gave him the 10
seconds or 60 seconds or whatever to answer the door, and
tomorrow in front of the Full Judiciary Committee Director
Dettelbach will have a chance to explain the actions of the
ATF.
Today we look forward to hearing from our witnesses. I want
to thank them all for being here.
I now yield back and now recognize the Ranking Member for
an opening statement.
Ms. Plaskett. Thank you to the Chair. Good morning and
thank you to the witnesses and others that are here and joining
us at this hearing.
Last week after Trump insider and convicted criminal Steve
Bannon demanded that Chair Jordan do more to protect Donald
Trump and this Committee answered the call. It's no accident
that last week this Committee called as a witness a former
defense attorney for Donald Trump in the classified documents
case, Rudy Giuliani's former lawyer and the attorney who has
written and filed Chair Jordan's amicus briefs to the Supreme
Court to support Donald Trump's many indictments.
Republicans rolled their eyes and snickered when I noted as
the Ranking Democrat on the Subcommittee that the plain goal of
that hearing was to influence the New York hush money trial
against Donald Trump.
Just so the public is clear how closely this Committee is
trying to link Donald J. Trump's criminal and civil matters and
use this Committee to act as outside defense Special Counsel,
two days ago Robert Costello, a Republican witness from last
week's hearing, was called by Donald Trump as a witness for the
defense in that very trial and used his same manic rambling
testimony that he gave in this Subcommittee.
Thankfully, now maybe the Chair and GOP Members won't
continue to be blasted by Fox News and other MAGA news outlets
and blogs for not doing enough with the Committee to support
the former President.
Costello got to try out his testimony. Defense counsel
thought it was good enough to appear as a witness on the stand
last week. I know the American people don't believe that this
is an appropriate use of the $20 million allocated to this
Committee holding six full hearings to bolster disproven lies
that the government is colluding with social media companies to
target conservatives, calling in an antisemitic anti-vax racist
conspiracy theorist who claims a worm ate part of his brain as
a witness.
Others just spread the widely debunked fringe claims about
the Deep State or have personnel grievances from appropriate
firing from their former employers that the Committee offers
them time to air here.
This is what Republicans have made of the Committee
process, but I guess it goes along with their inability to
effectively legislate in this Congress as well.
People often wonder with my courtroom litigation background
having been a prosecuting assistant district attorney if I
enjoy these hearings.
I have to tell you every time I get a notice of a hearing
for this Committee my stomach hurts because I'm disturbed by
the use of this legislative time to prop up a failed
individual, one individual--a loser in elections, a disastrous
dictatorial wannabe in governing, a perennially bankrupt false
revenue inflating con artist in business, and a cheater in
marriage even. That's who the Republicans want us to spend our
time on, supporting Donald Trump rather than the American
people.
Today we're going a step further. We are somehow having a
hearing to protect the gun lobby, to prop up Donald Trump's
pro-death agenda when more than 100 Americans die of gun
violence every day.
We have colleagues who have lost friends, classmates, and
mass shooters. Some of us in this Congress see the scourge of
illegal guns coming across State and city lines to ravage
communities with gun violence and death of youths.
These deaths happen everywhere, haunting every corner of
the American experience, and without a robust Federal law
enforcement, an ATF and FBI, Americans will die at a faster
rate.
I know that the Virgin Islands, my home, our Federal law
enforcement play a critical role in combating the scourge of
drugs and guns trafficking. Without these agencies or with more
guns available to bad people my region where I live and all of
America will be even more dangerous.
Families of gun violence victims have their lives ripped
apart and turned upside down in a moment. None of that is
helped or made less common occurrence when we attack and
undermine the ATF and the FBI.
Republicans on this Committee simply--it's not a matter of
caring about those mass victims. Families in Uvalde identified
their children by shoes because they could not identify them by
the faces that they have looked at every day.
It's easy to become desensitized in politics, but if that
doesn't hurt you, if you don't feel anything for that, God help
us all. There have already been 27 deaths from school shootings
this year alone.
Almost 4,000 children and teens are shot and killed every
year, 15,000 more injured. Guns are the number one cause of
death and children between the age of 1-18--the first cause of
death--guns. Not car accidents, suffocation, drowning,
poisoning, and cancer. Number one, guns, an entirely
preventable death if guns were in fact well regulated.
Instead of addressing this real problem and instead of
listening to three-quarters of gun owners--gun owners--three
quarters that support common sense gun safety laws. We're
continuing with this.
They brought us here right after Police Week in furtherance
of a mission to defund and dismantle the agency trying to save
our children, save Americans from gun violence.
The ATF is a central agency dedicated to stopping the
source of gun violence. Its agents ensure the background check
laws are followed. They keep guns out of the hands of
criminals.
They investigate gun crimes. They prevent mass shootings,
school shootings. They support local law enforcement and gun
tracing and enforcement efforts. They do the vital work we so
desperately need.
You're going to hear today about ATF overreach and
especially about the death of Mr. Malinowski. That is a tragic
loss of life.
Every loss of life is tragic. Our sympathies, all of us, I
believe, go out to the family. While an investigation is
ongoing into it's inappropriate to draw conclusions before the
results of an investigation or release.
We do know from affidavits from the court that it was
alleged that Mr. Malinowski was a mass-gun trafficker, and we
know that some of the guns he sold were used to commit crimes.
We know that ATF agents were serving a legitimate search
warrant. Beyond that, we await the results of an investigation,
and this Committee shouldn't seek to influence that.
Let's not be mistaken. Republicans are not here today
because they're concerned about the tragic loss of life during
a police raid. You know why I know that?
Because they have not uttered a word about a Florida deputy
shooting and killing Senior Airman Roger Fortsman in his
apartment just a week ago. You know why I know that? Because
they don't say anything--they don't say the name Breonna Taylor
who, in 2020, was shot and killed in her home through an
inappropriate police raid.
They don't want to talk about the gun violence impacting
communities or how across the country a Black American is shot
and wounded every 11 minutes.
They don't want to talk about the interstate gun
trafficking that's fueling violence in Illinois where on an
average someone is killed every six hours with a gun and where
Black individuals are 38 times more likely than White
individuals to die by gun homicide, triple the national
average.
So, while homicides dropped by 13 percent in Chicago last
year that doesn't mean that people aren't still dying. Those
victims deserve to be more than statistics. We don't talk about
that. They don't want to talk about that.
They don't want to talk about other kinds of police raids.
They want to talk about this police raid on Mr. Malinowski
because it fits their narrative about how to dismantle the ATF.
That's what this is about.
Don't let them fool you. They don't care, and when they do
care it's not about every American. It's only about a specific
type of American that they're concerned about those deaths
because I don't hear those other names being called by them.
Ms. Sampson, Mr. Graham--I want to thank our witnesses for
being there today. Ms. Sampson, your expertise and past
experience in gun violence prevention spaces is truly
impressive. I'm confident it will be invaluable as we examine
those issues here today.
Mr. Graham, I'd also like to thank you for your more than
37 years of public service at the ATF. I guess I will be
enlightened as to why you've begun getting paid by the very gun
lobby fighting ATF's work.
I want to thank the other witnesses. I would ask all four
of you today in your testimony answers to remember something.
As we engage in this hearing in the three or so hours we'll be
sitting here before us more than a dozen Americans will lose
their lives to gun violence.
It's a somber but necessary reminder of the gravity of what
we have discussed here today and what's really at stake.
I yield back.
Chair Jordan. The gentlelady yields back.
Without objection, all the opening statements will be
included in the record. I will now recognize the gentleman from
Arkansas to introduce one of our witnesses.
Mr. Hill. I thank the Chair, I thank the Ranking Member,
for the invitation today to appear before the Committee to
introduce my constituent and my friend Bud Cummins.
Bud Cummins is a prominent central Arkansas attorney. He's
a former U.S. attorney and former counsel to former Governor
Mike Huckabee. He's joined today, Mr. Chair, by the widow of
Bryan Malinowski, Maer, and we're glad to have her here to be
witness to this event today.
Mr. Cummins is representing the Malinowski family who are
still seeking answers from the Bureau of Alcohol, Tobacco,
Firearms, and Explosives, after ATF agents raided their family
home in the early hours of March 19th.
This predawn raid resulted in a deadly shootout, in which,
ATF agents shot and ultimately fatally wounded Bryan
Malinowski--as I said, a friend and constituent of mine--in his
own home, and Maer Malinowski is a widow at the hands of gun
violence by her own government.
Nobody knows more about this case than Bud Cummins. I'm
glad he's here to answer the Committee's questions and help get
answers for the family and the American public.
Thank you, Chair Jordan, for your leadership in holding
this hearing and I hope through your efforts we can obtain well
deserved answers to what led to the tragic death of Bryan
Malinowski. Bryan's widow, family, and the public deserve a
full accounting from the ATF. I thank the Chair and I yield
back.
Chair Jordan. I thank the gentleman. I thank you for your
work in bringing this terrible situation to our attention.
Thank you very much.
We also have Mr. Andrew Graham. Mr. Graham is the founder
and CEO of Graham Industry Advisors, a veteran-owned consulting
firm that advises the firearms industry on compliance with the
Gun Control Act and the Safe Explosives Act.
He previously served as the ATF Deputy Assistant Director
of Field Operations and Deputy Assistant Director of
Enforcement Programs and Services.
Mr. Ryan Cleckner is an attorney who specializes in Federal
firearms law and the Bureau of Alcohol, Tobacco, Firearms, and
Explosives compliance. He previously served our country in the
U.S. Army where he was a ranger and sniper instructor assigned
to the First Ranger Battalion. We thank you for that service as
well.
Ms. Kelly Simpson is the Director of Racial Justice and a
Senior Counsel at Brady. Her work focuses on racial justice and
reducing gun violence.
We welcome our witnesses and thank them for appearing
today. We will begin by swearing you in. Would you please rise
and raise your right hand?
Do you swear or affirm under penalty of perjury that the
testimony you're about to give is true and correct to the best
of your knowledge, information, and belief, so help you God?
Let the record show that each of the witnesses answered in
the affirmative. Thank you. Please be seated. Please know that
your written testimony will be entered into the record in its
entirety.
Accordingly, we ask that you summarize your testimony. We
will start with Mr. Cleckner, and we will move right down the
aisle.
Mr. Cleckner, you're recognized for five minutes, more or
less.
STATEMENT OF RYAN M. CLECKNER
Mr. Cleckner. Good morning, Chair Jordan, Ranking Member
Plaskett, and the Members of the Subcommittee. I'm Ryan
Cleckner. I'm an attorney specializing in Federal firearms law
and the Bureau of Alcohol, Tobacco, Firearms, and Explosives
compliance.
I am actively involved in the firearms industry, and I help
Federal firearms licenses, or FFLs, to stay compliant with
Federal laws and ATF rules and regulations either through
online training at RocketFFL, or most recently through free
ATF-compliant software I made, FFLSafe.
I'm also a former Firearms Industry Executive, a university
lecturer, and a Special Operations Sniper. I'm here today
because I'm concerned with what I see as the overreach of the
ATF when it comes to their enforcement actions over FFLs and
the current administration's zero tolerance policy when it
comes to licensee inspections.
The Gun Control Act of 1968 is the main body of law
concerning standard firearms and the Federal firearms licensing
system and, specifically, the GCA allows the ATF to revoke an
FFL's license for a willful violation of the law.
Originally, the GCA had no such willfulness standard but
Congress in 1986 amended the GCA to specifically include the
willfulness requirement to, quote, ``ensure that licenses are
not revoked for inadvertent errors or technical mistakes.''
The Senate notes on that matter reference Rich v. U.S.,
where the ATF was required to reissue a license absent a
showing of a willful violation because willful at that time was
found to mean purposeful and intentional behavior.
Now, the addition of willful standard by Congress is
significant because an FFL's compliance obligations are largely
clerical and technical in nature, and in some instances a mere
typo could be considered a violation of the Gun Control Act.
By requiring willfulness Congress clearly raised the
standard for revocation to only include situations in which a
licensee purposefully and intentionally violates the law. The
administration's current zero tolerance policy flies in the
face of Congress' intent and it's causing harm to otherwise
law-abiding FFLs, and it's wasting ATF's limited resources.
I have a client, Point Blank Firearms, an FFL in Michigan,
that is a perfect example of the harm caused by the zero-
tolerance policy and overreach by the ATF. The ATF is currently
trying to revoke their license based on an inspection that
started on July 26th of last year, and in April of this year
the Acting Director of Industry Operations for the Detroit
field division provided my client with a notice of revocation.
We elected to have a hearing on the matter and have yet to
be provided with a date. My clients, the owners of Point Blank,
are here with me now while their employees are back home unsure
about their jobs and one of the owners, a first-generation Arab
American, also owns a second FFL business with another partner
who is being denied his due process because they have to have
their inspection on hold until this inspection is finalized.
In this matter the ATF falsely claimed that my client had
308 missing firearm transaction forms. In reality, my client
has zero missing forms. Every single one has been located,
matches the FBI background check numbers, and bears the
customers' signature.
The ATF also falsely claimed that they made errors by
transferring firearms more than 30 days after the background
check. That also is completely untrue. Those were probably
transferred the exact same day the background check happened.
Now, to be fair, the ATF inspectors weren't aware of the
facts during the inspection. However, when we presented all
this information and facts to the ATF, and asked them to
reconsider this revocation they denied that and are pushing
forward.
I'm going to share a few facts about my client that are
relevant to understanding what type of FFL the ATF is spending
all this time, energy, and money trying to shut down.
In over the 12,000 firearms acquired by Point Blank not a
single firearm has ever been lost or stolen. Point Blank has
100 percent accountability of the 4473s, over 11,000 of them.
Point Blank has never transferred a firearm to someone who
failed a background check. They've never failed to make,
submit, or keep a multiple sales report and not once in the
approximately 300 ATF trace requests had they failed to give
timely and accurate information.
In summary, Point Blank has never engaged in any activity,
even accidentally, that would have any negative impact on
public safety. They take their role very seriously.
I think ATF's zero tolerance policy is severely misguided
and is wasting ATF's limited resources and this overzealous
policy is harming the ATF's relationship with retailers.
ATF should focus its resources on trigger pullers on the
street and not shutting down honest, hard-working, and law-
abiding gun stores.
Thanks for the opportunity to speak today. I look forward
to answering your questions.
[The prepared statement of Mr. Cleckner follows:]
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Chair Jordan. Mr. Graham, you're recognized for five
minutes. Hit that microphone if you could, Mr. Graham, so
everyone can hear you. Go right ahead.
STATEMENT OF ANDREW GRAHAM
Mr. Graham. Thank you, Chair.
Good morning again, Chair Jordan, Ranking Member Plaskett,
and distinguished Members of the Select Subcommittee. My name
is Andrew Graham and I appreciate the opportunity today to
appear before you and testify about an issue which has impacted
my career as a former ATF employee as well as one that truly
hits home.
For 37 years I have proudly served in the Bureau of
Alcohol, Tobacco, and Firearms, and I am a veteran of the
United States Air Force National Guard.
As the Deputy Assistant Director I served in the capacity
over ATF's regulatory enforcement as well as Deputy Assistant
Director over the enforcement program services--that is
tracing, etc.
During this time, I've worked alongside some of the most
talented men and women that I've known who've done a yeoman's
work in providing safer communities, enforcing the laws and
regulations to uphold the Constitution.
I've developed strong relationships with our agents, field
investigators, better known as IOIs, as well as directors of
industry operations at all 25 field divisions.
Some of you find it surprising that the agents and the IOIs
develop a rapport with FFLs or better known as retailers, but
that relationship is critical as FFLs are often the first line
of defense in linking--in keeping firearms out of the hands of
prohibited people. They share tips with ATF of suspected
traffickers and/or potential straw purchasers.
I can tell you from personal experience now as a consultant
that members of the firearms industry do not want firearms to
go into the wrong hands and I put a lot of emphasis on that.
That is a standing. We do not want firearms to be in the hands
of prohibitive persons.
In fact, the firearms industry is one of the most heavily
regulated industries. Firearm retailers spend countless hours
ensuring that they're up to speed on current laws and
regulations.
FFLs are human and the best of the retailers they do make
mistakes. That was part of my job for 37 years is identifying
these errors, working to help that they aren't repeated, ensure
that the proper training was deployed, and to provide an
opportunity for an FFL to get back on track.
In the summer of 2021, President Biden announced a
comprehensive strategy to prevent and respond to gun crimes and
ensure public safety which included directing the ATF to revoke
Federal firearm dealers under a zero tolerance policy if they
violate the law--willfully violate on the following counts: (1)
Transferring a firearm to a prohibited person; (2) failing to
run a background check; (3) falsifying records such as
transaction forms--those are the ATF Form 4473s; failing to
respond to a trace request within 24 hours; and (4) refusing to
permit ATF to conduct an onsite inspection during normal
business hours.
Revocation is the loss of a Federal firearms licensee
license and closes the business entirely. So, this is a big
deal. It's not just the loss of a license, but it's a loss of
one's livelihood.
As stated by ATF in 2014, when detailing the Federal
firearms revocation process, willfulness is not defined by the
regulation but is defined by case law to mean the intentional
disregard of a known legal duty or plain indifference of the
licensee's legal obligation.
In the case of an FFL who has willfully violated the law,
has shown an intentional disregard for the legal requirements
or has knowingly participated in criminal activity, revocation
may be the only viable option.
The problem is the breadth of the zero-tolerance policy is
much larger than just the rogue gun dealers. It was initially--
it was supposedly carried out to address willful violations
being redefined on a case-by-case basis.
With numerous enforcement complexities it strained the
relationship between the regulator and the industry. This is
putting FFLs who should never have been caught up in this new
policy and damaged the cooperative trust built between the
agency as well as industry members.
It's become so rampant that FFLs facing revocations that
never would have faced them now are pressured into shutting
down their businesses and depleting funds that they, quite
frankly, don't have.
In December 2022, I made the tough decision to retire from
civil service and in my time since leaving ATF I have continued
to do what I've enjoyed while I was there with ATF, working
with members of the firearms industry to ensure regulatory
compliance, and in the event that FFLs are ensnared in this new
policy I help them to navigate the process to help preserve
their livelihood and their law-abiding businesses.
Thank you for your time. I look forward to answering your
questions as well.
[The prepared statement of Mr. Graham follows:]
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Chair Jordan. Thank you, Mr. Graham.
Ms. Sampson, you're recognized for five minutes.
STATEMENT OF KELLY SAMPSON
Ms. Sampson. Chair Jordan, Ranking Member Plaskett, and
distinguished Members of the Select Subcommittee, thank you for
inviting me to testify today.
I'm Kelly Sampson, Senior Counsel and Director of Racial
Justice at Brady, the oldest national gun violence organization
in America.
Gun violence is a public health epidemic, causing more than
44,000 deaths each year--44,000 deaths and many more who live
with injury and trauma. Since 2020, gun violence has been the
top cause of death for American children and teens, which is
why thousands of kids and their parents plead for Congress to
protect them.
Despite our country's love of freedom gun violence is a
reason why many Americans no longer feel free to go to school,
a July 4th parade, the movies, concerts, the grocery store, and
places of worship.
Gun violence is why many of your own constituents, gun
owners and nongun owners alike, are desperate for you and your
colleagues to pass common sense gun laws and ensure those laws
are properly implemented.
With tens of thousands dead and many more injured Congress
should be focused on ending our gun violence epidemic and
equipping the Bureau of Alcohol, Tobacco, Firearms, and
Explosives, or ATF, to meet its mandate and to enforce the
Nation's gun laws. Just days ago, Congress celebrated Police
Week where members gave countless speeches in support of law
enforcement.
ATF is not only law enforcement in and of itself, but also
a critical ally of State and local law enforcement agencies
across the country. ATF is the only Federal law enforcement
agency which has specific jurisdiction over firearms and gun
industry oversight.
It should also be noted that guns are the leading cause of
death for police officers killed in the line of duty. Guns
don't grow on trees. Almost all firearms are sourced from
illegal markets, manufactured, imported, distributed and sold
by Federal firearms licensees, or FFLs.
Generally, manufacturers and importers sell to distributors
who sell to dealers who then sell to the public. Dealers are
the first line of defense against gun trafficking and most take
this responsibility very seriously.
In fact, the large majority of gun dealers won't sell a
single crime gun in a given year. A small number of dealers'
negligent practices filter guns directly into the criminal
market.
According to the last available data, nearly 70 percent of
crime guns were traced back to just over one percent of
licensed dealers.
So, even though the portion of the gun industry most
responsible for supplying crime guns is miniscule, ATF
nonetheless struggles to meet its mandate.
ATF only has the resources to inspect about eight percent
of active FFLs annually, falling far short of its own internal
goal of inspecting each FFL every three years.
To reach that goal ATF would need to more than double its
current compliance staff. In fact, over 2,000 active gun
dealers have gone for more than a decade without inspection.
ATF struggles to meet its mandates because it's been under
resourced and deprived of a confirmed director for decades.
Indeed, just this year Congress voted to once again reduce
ATF's budget despite the gun violence epidemic.
These obstructions erode ATF's oversight capacity, forcing
hard-working law enforcement agents to regulate a behemoth
industry with their arms tied behind their backs.
Undermining ATF doesn't just hinder the agency but it also
harms local law enforcement across the country. ATF plays an
essential role in supporting State and local law enforcement
nationwide including in your districts.
When an incidence of gun violence occurs, ATF helps local
and State law enforcement partners by generating investigative
leads and information on guns recovered in crimes by tracing
them to their last known retail purchaser. ATF also trains
officers to better understand advanced firearms technology.
These services strengthen State and local law enforcement,
providing them with information, coordination, and education
necessary to enforce existing laws and prevent future gun
crimes.
Congress must listen to their constituents and recognize
that the American people are begging for gun violence
prevention policies. Americans, gun owners, and nongun owners
want to be safe. Federal oversight for the firearm industry
does not hinder any law-abiding citizen's Second Amendment
right.
Instead of attacking ATF you should be building up the
agency and supporting its efforts to end gun violence. In the
shadow of Police Week, we must remember that ATF agents are law
enforcement, too, and they play an important role in protecting
the public and other law enforcement officers all over the
country from gun violence.
Thank you, and I look forward to your questions.
[The prepared statement of Ms. Sampson follows:]
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Chair Jordan. Thank you, Ms. Sampson.
Mr. Cummins, you're recognized.
STATEMENT OF BUD CUMMINS
Mr. Cummins. Thank you, Mr. Chair, Ranking Member Plaskett,
and thank you, Representative French Hill, for the
introduction.
Representative Hill has been very engaged and concerned
about the death of Bryan Malinowski in his district and we
really appreciate his help bringing attention to this tragedy.
My name is Bud Cummins. I'm an attorney for Bryan Mali-
nowski's family. I'm a former United States Attorney from the
Eastern District of Arkansas.
I want to tell you a little bit, Mr. Chair, about Bryan
Mali-
nowski. Until two months ago Bryan was the Executive Director
of the Bill and Hillary Clinton National Airport in Little
Rock. He is 53 years old.
He and his wife, who's present with us today, Maer,
celebrated their 25th Anniversary last December and he had
many, many good friends. He grew up in Pennsylvania with his
brother and his two sisters and he wanted to be a fighter
pilot, but he didn't have the eyesight.
So instead, he went and got his certified--became a
certified flight instructor, got a college degree, and went
into the airport management industry and he had several stops
along the way in Pennsylvania, Florida, but in El Paso, Texas,
is where he met his wife Maer and, as I said, they've been
married 25 years.
He found his way to Little Rock and eventually was named
the Executive Director of our airport. By all accounts he's
very good in his profession.
Our airport is one of nine--I've heard a few different
numbers--less than 12 in the country that's debt free and that
maybe that's a concept that's strange here in Congress but I
think that represents some good management.
Bryan was also a lifelong collector. As a child he started
collecting coins. He had various hobbies. He was that guy. I've
been to their home and seen books this thick about coin
collecting, collecting currencies, and other--about card
playing. He studies card playing, and he tried his hand at
competitive card tournaments.
About six years ago Bryan's father gave him his gun
collection and that sparked interest--a new interest, a
collection interest in Bryan, since then he has become also a
gun collector and at gun shows he found other people who shared
his enthusiasm and his interest in not only guns, but in coins,
and other artifacts that you'll find at a gun show.
He'd set up a table on weekends occasionally and he'd
display some of his guns and he'd display his coins, and he
would buy, sell, and trade with other collectors. It is legal
to buy, sell, and trade firearms without a Federal firearms
license if you're a collector or a hobbyist.
At some point ATF suspected that Bryan Malinowski may have
crossed a very murky line, and he was no longer a hobbyist.
Because of that, ATF concluded that he was required to buy a
$200 FFL--Federal firearms license--before he sold any more
guns.
One thing is certain. His family and his friends and all
his work colleagues would all guarantee you if they were here
today that he loved his career and he loved being in the
airport management business, and if anybody had ever suggested
to him that his weekend hobby was in any way threatening that
he would have immediately been hands off.
Nobody told him. Instead, ATF launched a criminal
investigation into Bryan. They researched his background. They
put a tracker on his car. They put tails on him and surveilled
him, and soon they obtained a search warrant to search his
home.
By the time they obtained the warrant they knew a lot about
Bryan. They knew he worked in a secure environment at the
airport.
They knew he had lived a law-abiding life with absolutely
no criminal history, and they knew he lived at home with his
wife and his two dogs, and they kept a very regular schedule.
Despite all this knowledge, ATF hatched a plan to execute
the warrant by force and on March 19th at 6:01 a.m., over one
hour before sunup, 10 carloads of ATF agents, and Little Rock
Police Department officers came to the Malinowski home to
execute the search warrant.
They wore full tactical SWAT gear, and they approached the
door at 6:02:42 a.m. That's about one hour and 15 minutes
before sunup that day.
They had a piece of tape ready, and they covered up his
doorbell camera so if he had time to wonder who was at the
door--I think people get a doorbell camera to see who's at the
front door, but they took away his ability to do that.
Moments later Ms. Malinowski heard a loud crash as their
front door caved in and fearing for his wife's safety, Bryan
jumped up at the sound of a crash, found a pistol, loaded a
magazine in it, and left the bedroom to investigate.
He warned his wife to stay behind him in the bedroom, but
she stubbornly followed him through the doorway. It appears to
us that ATF also killed the electricity to the home, making it
difficult for Bryan to see in the predawn hours.
Ms. Malinowski saw only darkness as she peered down toward
the front entryway and could see shadowy outlines of presumed
home invaders standing in her front hallway. That's what Bryan
saw, too. There was gunfire and Bryan was fatally wounded.
His wife was standing just a few inches from him when he
received a fatal wound to his head. A mere--we know--we don't
know all the details of what happened at the front door because
they covered up the Ring camera, and because they didn't wear
body cameras in spite of a three-year-old policy initiated by
the President of the United States that mandated that they wear
body cameras when executing search warrants.
We do know this. We know 57 seconds elapsed from the time
they covered up the lens of the camera to the time Mr.
Malinowski was dead. So, something less than 57 seconds is the
time it took them to knock, if they knocked, but we don't know
if they knocked--forced entry on the front door and for Mr.
Malinowski to emerge--to wake up, find a gun, and come from the
bedroom.
That means they couldn't have been at the front door more
than 20-30 seconds. Although, her husband had just been shot in
the forehead right in front of her, the agents dragged Ms.
Malinowski into the front yard. She was barefoot, wearing
minimal night clothing and the temperature was 32 degrees.
They locked her in the back seat of a car where she was
detained for four or five hours. She begged to be allowed to
check on her husband, but they refused those requests and kept
her locked in the car in her nightgown.
She also had not been to the restroom yet since she'd just
gotten out of bed and they refused her request to go to the
neighbor's and use the restroom and then, finally, took her to
a nearby fire station, made her walk through in her
nightclothes in front of the firemen and use the restroom with
a female police officer present in the room while she went to
the restroom.
Ms. Malinowski does not have the answers to many of her
questions and there are a lot of questions. We give Federal law
enforcement awesome powers. We have given--and when I was a
United States attorney, I was responsible for the use of those
powers.
It's a huge problem if those powers fall into the wrong
hands. Everyone--I've been involved in public controversy for
many years.
I've never been involved in anything that more Arkansans
have come to me to express their concern and they all ask the
same question, why, and I don't have an answer for that.
We don't have an answer to that question, and we hope this
Committee will pursue this and find the answer why, and if
there's not an answer we hope that you'll find the problem and
fix it.
Thank you.
[The prepared statement of Mr. Cummins follows:]
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Chair Jordan. Thank you, Mr. Cummins. That was well said,
and so wrong.
The gentleman from--we will now proceed with five-minute
questioning. The gentleman from North Dakota is recognized for
five minutes.
Mr. Armstrong. Early morning hours riot shields, probably a
no-knock warrant but either way a full-on Tommy tactical
assault on a residential dwelling.
Mr. Cummins, you said it in your opening statement, but
where did Mr. Malinowski work?
Mr. Cummins. He was the Executive Director of the Little
Rock Airport.
Mr. Armstrong. Do you know if firearms are permitted at the
Hillary Clinton National Airport?
Mr. Cummins. To my knowledge it's like every other airport.
They do not allow you to carry firearms in the airport.
Mr. Armstrong. To your knowledge, had Mr. Malinowski ever
been accused of bringing firearms to work?
Mr. Cummins. Not to my knowledge. I'm not aware of him
being accused of any misconduct at his job.
Mr. Armstrong. Would it stand to reason that if Mr.
Malinowski had been driving into work or driving home from
work, he would not have brought a gun with him, given that it's
a gun-free zone?
Mr. Cummins. I think that's a fair assumption.
Mr. Armstrong. Do you think that in the process of
executing their search warrant they would have--the FBI or the
ATF would have been able to get a copy of Mr. Malinowski's work
schedule?
Mr. Cummins. I think his work schedule was well known to
the ATF.
Mr. Armstrong. I want to be, clear, because we're talking
ATF and because we're talking firearms, and we're doing all
these things and this is basically a licensing dispute.
Mr. Cummins. Yes, sir, and it's an alleged violation that
the definition is subjective, and it's been actually litigated
quite a bit here recently, and it's become apparent that it's
almost--every person in this room could read it and come up
with a different interpretation.
Mr. Armstrong. Mr. Graham, during your tenure at the ATF
were you ever involved in planning and execution of search
warrants?
Mr. Graham. Congressman, I have not.
Mr. Armstrong. Mr. Cummins, as your time as a U.S. Attorney
did you have a chance to review search warrants?
Mr. Cummins. Yes, sir.
Mr. Armstrong. When do you use no-knock warrants? Let me
stop. What's the most dangerous kind of warrant to execute?
Mr. Cummins. A no-knock warrant. When you kick the door in
and wake people up out of their beds when they may have a gun
nearby.
Mr. Armstrong. When's the worst time to execute that?
Mr. Cummins. Probably at 6 a.m.
Mr. Armstrong. If you're in charge as a U.S. attorney or
ATF supervisor or any of those things, what's your number one
concern when determining whether or not to execute a no-knock
warrant?
Mr. Cummins. Safety of the officer and safety of the
public.
Mr. Armstrong. Was there anything--you talked earlier about
tracking devices and can you go through a little bit of this of
what they were doing prior to the night the warrant was issued?
Mr. Cummins. They had followed Mr. Malinowski around town
and surveilled him on numerous occasions. They ran agents in to
do undercover buys at gun shows. They had taken pictures of him
at the gun show.
It's breathtaking the amount of resources for an agency
that claims budgetary constraints that they put this many
resources on a gun show case.
Mr. Armstrong. I can think of 500 different ways in which
this warrant could have been executed to protect the law
enforcement officer and protect the victim in this case. I
don't know what else you'd call them.
What is the stated reason for executing the no-knock
warrant?
Mr. Cummins. I think in case law you would look for exigent
circumstances. They might be at risk of escape. They might be
the destruction of evidence. They might be a danger to some
other party that's in the house.
Of all the exigent circumstances I'm aware of that have
ever been discussed in any case none of them existed here and
that was well known.
Mr. Armstrong. Likelihood of the evidence being--I mean,
surveillance--
Mr. Cummins. You can flush drugs.
Mr. Armstrong. Yes, all the difference--used a lot--
utilized a lot in drug cases. They know somebody had delivered
it at midnight. They know it's getting farmed out the next day.
So, with all this information and all the things you know about
the case, have they stated any exigent circumstance for
utilizing the known or utilizing this type of enforcement of
the warrant?
Mr. Cummins. To my knowledge, DOJ has released the
affidavit that supported the search warrant and has called me
and Senator Tom Cotton to tell us that there were no body
cameras used that day and that's the only statement they've
made about this case.
Mr. Armstrong. We need to just take a step back here and
recognize if this was anything else other than ATF and firearms
people would be apoplectic about how this warrant was set up
but because it involves something that has a political reason--
but there's a person dead.
Somebody is dead because the ATF decided to execute a
warrant in the most unprofessional, irresponsible, and
dangerous way and I think that oftentimes law enforcement have
a very difficult job. The number one concern is the safety of
the officer.
The reality of this was executed for reasons that make no
procedural sense. They make no safety sense, and somebody is
dead because they decided they wanted to go into a house at 1
a.m., of a known gun owner for the purpose of making--I can't
think of anything else--other than a political statement.
Thank you for representing the family. Thank you for being
here today. The ATF has a history of doing these things with
warrants and it has to stop.
With that, I yield back.
Mr. Goldman. Mr. Chair, I have a unanimous consent motion.
Chair Jordan. The gentleman is recognized.
The gentleman yields back. The gentleman is recognized.
Mr. Goldman. I'd like to introduce the search warrant
affidavit and search warrant, which is not a no-knock warrant.
Mr. Armstrong. Was it still at 1 a.m., with--
Mr. Goldman. I don't know how many people in--6 a.m., in
Tommy tactical gear.
Chair Jordan. Without objection. The Chair now recognizes
the gentlelady from Florida.
Ms. Wasserman Schultz. Thank you, Mr. Chair.
I'm repulsed to hear my colleagues' calls to destroy the
one agency that actually provides for firearm safety. I vividly
recall the tragic events that unfolded on February 14, 2018, at
Marjory Stoneman Douglas High School in Parkland, Florida, in
my home county.
That day our Nation witnessed one of the deadliest school
shootings in American history where 17 innocent lives were
brutally taken and countless others irrevocably changed. The
horror of it still resonates across our community.
In case my Republican colleagues forgot, these victims were
students and educators with dreams and aspirations snuffed out
by an AR-15, which is a battlefield rifle.
One was Alyssa Alhadeff, a 14-year-old soccer star, another
Scott Beigel, a teacher who died protecting his students. My
colleagues will and are citing what they claim are injustices
today, but none of them will mention Scott or Alyssa's name,
nor will they mention the tens of thousands of others just like
them who are shot and die from firearms each year.
My colleagues also won't share how Stoneman Douglas
students huddled in classes or sent tearful desperate texts to
loved ones while every school parent was knotted in panic
awaiting news about whether their child was alive or dead that
day.
My colleagues are not here to talk about those real-life
but grim gun realities. They want to bury those realities and
ignore the fact that the U.S. gun homicide rate is 26 times
that of other high-
income countries.
Instead, they brought us here to do the bidding of the gun
lobby and for that they should be ashamed of themselves.
Ms. Sampson, I want us to clear up the ridiculous assertion
that gun dealers' licenses are revoked over minor clerical
errors or typos.
Isn't it true that clerical errors can often be serious
problems that cause guns to fall into a criminal's hands and
that a typo could be an attempt to falsify business records?
Ms. Sampson. That is true, and as you noted, when
discussing the zero-tolerance policy there are five enumerated
actions that will qualify and it would be something like
falsifying a record which you cannot do accidentally. You can't
by a typo falsify a record. It has to be a willful and
deliberate violation.
Ms. Wasserman Schultz. Like, for example, it could include
not running a background check on a purchaser when legally
required to or include selling that firearm to a violent felon,
correct?
Ms. Sampson. Correct.
Ms. Wasserman Schultz. It's fair to say then that clerical
errors includes very dangerous situations where firearm dealers
shirk their duties and sell guns to criminals?
Ms. Sampson. That's not only true, but they're not clerical
errors when you look at what they actually are. These are
deliberate and willful wrongdoings.
Ms. Wasserman Schultz. One such group of criminals that I'm
concerned about getting their hands on guns are domestic
abusers. Every month an average of 70 women are shot and killed
by an intimate partner. That's more than two per day in the
United States.
Yet, today we sit here so gun lobby lackeys can try to
block background checks that would prevent these abusers from
getting guns in the first place. We're here so Republicans can
protect gun traffickers who skirt the rules and let guns fall
into criminal hands.
To pretend that noncompliant dealers are the victims when
we are losing thousands of our mothers, sisters, and daughters
to abusers who get their hands on guns sure seems like that's
why we're really here.
Ms. Sampson, how much more is an abused woman likely to die
if her male abuser has a gun?
Ms. Sampson. The exact statistic just left my mind, but I
believe it's four times that--
Ms. Wasserman Schultz. I think it's five times.
Ms. Sampson. Five times more likely.
Ms. Wasserman Schultz. Why is that?
Ms. Sampson. It's because having a firearm in that
situation makes it more likely for it to escalate quickly, and
contrary to some of the statements around it being an equalizer
for women, even if a woman has a firearm she can quickly be
disarmed, and that gun can be turned against her.
Ms. Wasserman Schultz. Right. Yet, I've heard my Republican
colleagues say that the solution to this is for women to have
guns, too. Tell me, Ms. Sampson, does a woman having a gun in
the home make her safer against an intimate partner?
Ms. Sampson. Absolutely not.
Ms. Wasserman Schultz. In general, isn't it true that
adding more guns to a violent situation actually increases
fatality rates?
Ms. Sampson. That's correct.
Ms. Wasserman Schultz. Before I yield back, I want to make
it clear that we have far too many loopholes in our system. For
example, my Jamie's Law legislation named for Fred Guttenberg's
daughter who was murdered at Parkland would prohibit anyone
from purchasing ammunition who is already barred from buying a
gun.
It's a common-sense layer of protection but Federal law
doesn't require a background check to prevent prohibited
purchasers from acquiring ammunition. Jamie's Law closes this
ammo loophole.
Why do we need it? Nearly 40,000 people die from guns in
the U.S. every year. That's four people every hour whose dreams
are snatched away by a gun and a bullet, each one leaving a
trail of sorrow and pain for friends and family to navigate
over an entire lifetime.
Now, it's only elected Republicans that are chained to the
gun lobby and Republicans are really good at saying that we
don't need more laws--we just need to enforce the ones that are
already on the books.
Well, it's already illegal for prohibited purchasers to
purchase ammunition, but we don't enforce it. So, I think that
all my colleagues I would expect would join me in co-sponsoring
Jamie's Law, bringing it to the floor immediately so that we
can actually enforce a law already on the books instead of
adding a new one.
Thank you. Practice what you preach. I yield back the
balance of my time.
Chair Jordan. The gentlelady yields back.
Mr. Cummins, what was Bryan Malinowski's principal
livelihood?
Mr. Cummins. He was the highest paid city employee in the
city of Little Rock as the Executive Director of the Little
Rock Airport, and it's a matter of public record I think he
made about $260,000 a year.
Chair Jordan. So, it wasn't selling guns?
Mr. Cummins. No, sir. This was collecting guns was a hobby.
Chair Jordan. The law at the time says if your principal
livelihood is not in selling firearms you do not need an FFL.
Is that accurate?
Mr. Cummins. That's my understanding to the best you can
have an understanding.
Chair Jordan. So, what was the crime? What did he do wrong?
Mr. Cummins. You'd have to ask ATF. They decided that he
committed--maybe had committed a crime even though--
Chair Jordan. Now, the standard has changed but the new
rule didn't take effect until this past Monday. Is that right?
Mr. Cummins. That's correct.
Chair Jordan. Even under the new standard there was a
question of whether he was in violation of the law. Is that
accurate?
Mr. Cummins. A huge question.
Chair Jordan. Huge question. Under the old standard it was
pretty simple--is your principal livelihood selling firearms.
Mr. Cummins. That's correct.
Chair Jordan. For Bryan Malinowski it wasn't?
Mr. Cummins. Obviously not.
Chair Jordan. It wasn't, and yet at 6:02, March 19th, 10
cars pull up to his home and to the gentlelady behind your's
home, come up to the door in tactical gear and put a tape
across the doorbell camera, so no one can see what's going to
go on.
Mr. Cummins. Correct.
Chair Jordan. Now, that's scary to me.
Mr. Cummins. Probably scary to everyone.
Chair Jordan. Now, if the guy had done--if he had for sure
done something wrong, a crime, OK. They do that and then 57
seconds later gunshots erupt and Bryan Malinowski is no longer
with us, a good man by your--you knew the guy. Served your
community. Highest paid city official in Little Rock. What the
heck do you think's going on here?
Mr. Cummins. That's the question on the lips of every
person in Arkansas that's contacted me and that's a large
number of people.
Chair Jordan. Isn't it true that a week before these same
agents were there in the Wal-Mart parking lot close by the
Malinowski home, going to go execute the search warrant and
then decided not to because Bryan Malinowski wasn't home? Why
was this so critical that he'd be home?
Mr. Cummins. I don't know, Mr. Chair. It was a search
warrant. In fact, they could have waited until nobody was home
and come--they wanted to kick the door down. They could have
come at noon and kicked the door down, when Maer and Bryan were
both gone.
Chair Jordan. Searched and found whatever they were looking
for.
Mr. Cummins. Exactly.
Chair Jordan. Anything they wanted on Mr. Malinowski--if
they wanted his phone or anything they could have served that
warrant.
They could have got a warrant for that. I'm sure the judge
would have given it to them, and they could have done that at
the airport--at his principal livelihood at the airport,
correct?
Mr. Cummins. Correct.
Chair Jordan. Then, to add insult to injury--this is the
part that just--I know infuriates Mr. Hill as your Member of
Congress and I would bet any American--to add insult to injury,
the way they treated his spouse, Ms. Malinowski, sitting behind
you, the way they treated her at a moment that may be the most
high-anxiety moment in any individual's life. Their spouse has
just been shot. That to me is unbelievable what she had to go
through.
Mr. Cummins. It makes me very angry.
Chair Jordan. Well, it should. It should make all of us
angry. I think it makes the Democrats--there's no--there's no
explanation for that. That to me--and if you--and I keep coming
back to was this done for some kind of--we have seen this from
other agencies, frankly--intimidation.
We had the FBI--Mr. Houck, come in, arrest him in front of
his wife and children. Same thing. Predawn raid, seven kids
there, and take him away. When his attorney said, we'll be
happy to work with you, you would have been happy to work with
these guys if they had contacted you or any--
Mr. Cummins. Absolutely.
Chair Jordan. That's the part that gets us. That's the part
that--what was his principal livelihood? It was not selling
firearms. I can't figure out what the crime is.
By the way, any of the guns--any of the firearms that Mr.
Malinowski sold as part of his hobby--excuse me--any of them
ever be used--were any of them ever used in a crime?
Mr. Cummins. The affidavit alleges that they were--they
were found in crimes, but the crimes were three traffic stops
where there was marijuana and a firearm in the car. So, that
was a crime. Two other ones but they were never fired in the
commission of a crime.
Chair Jordan. The guns themselves were never used in a
crime.
Mr. Cummins. They were never used in the commission of a
crime according to the affidavit.
Chair Jordan. Yes. You asked it in your testimony. You said
the right thing. Why? Why did they do it? Why did this happen?
That's what we're going to try to find out and tomorrow Mr.
Dettelbach will be sitting right where you guys are sitting,
and we're going to ask him questions about this.
He's probably going to say ongoing investigation, but we're
going to push him as hard as we can. We're trying to figure out
why they would behave in this way and why they didn't wear body
cams.
It's almost like, what are they trying to hide? Cover up
the doorbell and no body cams. What are they trying to hide?
We'll get to those questions tomorrow. I see my time has
expired.
I will now recognize the gentleman from Massachusetts, Mr.
Lynch.
Mr. Lynch. Thank you, Mr. Chair.
So, as a Member of the House Oversight Committee, I
strongly supported the independent investigations years ago of
operations conducted by the ATF and that included Operation
Fast and Furious and Operation Wide Receiver by the Department
of Justice.
I also believe that under the circumstances surrounding the
death of Mr. Malinowski, we should also institute a full and
independent review.
However, like Ms. Sampson, I do not agree with the ad
hominem attacks on our ATF agents and law enforcement
personnel. I was here in 2002, when President George Bush--
George W. Bush, excuse me--reestablished the ATF within the
Department of Justice and he did that for all the right
reasons, I believe.
We had a mission to protect communities from violent
criminals, criminal organizations, and also we needed to get at
the problem of the illegal use and trafficking of firearms.
To this end the ATF regularly, to my experience, works with
local and State law enforcement agencies nationwide to reduce
gun violence, a national crisis that's affected each of our
communities.
In my own district which includes part of the city of
Boston the ATF Boston field division recently partnered with
the Boston Police Department, the Suffolk County Sheriff's
Office, the Suffolk County District Attorney's Office, and the
U.S. Attorney's Office on a new initiative to combat the flow
of illegal guns and the incidence of violent crimes using those
guns.
In particular, the Boston Firearm Intelligence Review
Shooting and Trafficking program or the Boston First program
was developed to deploy State of the art ShotSpotter technology
or tracking tech--ballistics tracking technology is another
term--to assist a law enforcement agency in reviewing shooting
incidents and firearms trace data to take illegal guns and
violent criminals off the street and also to respond more
quickly to those incidents of gun violence.
The ATF Boston field division also participates in several
critical multi-agency task forces within our State and our
city. A perfect example of what that collaboration can do is we
had a shootout at my local park.
So, I grew up in the housing projects. We have a park
across the street. We have got--it's heavily, heavily used, the
second most heavily used park in the city, and we had a
shootout between two rival gangs and it was during a couple of
lacrosse games--a lacrosse tournament and a basketball
tournament--and it ended up in a situation where moms and dads
had to lay on top of the bodies of their kids to prevent them
from being shot.
There were only 60 shots fired. It only lasted a couple of
minutes but that couple of minutes felt like a couple of hours
to those parents trying to protect their kids.
So, we were able to with the help of the ATF and Boston
police, the FBI, the DEA, who I asked to get involved as well,
and also police departments from Boston, the city of Brockton,
Quincy, Stoughton, to begin to attack that problem and bring in
some of that technology to reduce the likelihood of that
happening again.
I'm very thankful. I'm thankful for my ATF agents and law
enforcement personnel for the job that they do. It's not easy.
Ms. Sampson, if you could talk a little bit about last week
we had--you wouldn't believe it, but we had law enforcement
officers' National Police Week where we show appreciation.
Now, we're going after them. Could you further discuss the
extent to which ATF supports local law enforcement in
preventing gun violence and gun trafficking?
Ms. Sampson. Thank you.
There are a variety of forms that this takes. First, we
have to think about the context that were, in which, is
epidemic gun violence.
So, we have over 44,000 people killed each year and that
doesn't account for all the shootings that happen where people
are injured or where there's just shots fired.
So, local law enforcement agencies are trying to respond in
that environment and ATF is the only Federal agency that can
help them understand, first, where are the guns coming from.
They can't figure that out without ATF.
So, every time a gun incident happens ATF is the one who
tells them where the gun came from, can help them identify
suspects, and follow those leads along.
ATF also helps law enforcement understand firearms
technology so that they can better understand what's going on
in their communities, and then in terms of preventing gun
violence in the first place because gun violence is the number
one cause of death for police officers ATF's work around
regulating the industry and preventing guns from being
trafficked into communities stops gun violence before it
starts, which is a huge help to local law enforcement.
Mr. Issa. [Presiding.] I thank the gentlelady. I'm sorry--
Mr. Lynch. Mr. Chair, just so you know, the previous
witness had, like, eight minutes and so, you could extend the
courtesy--
Mr. Issa. I would ask unanimous consent the gentlelady have
an additional minute. I was not trying to short--I gave her an
extra 55 seconds.
Mr. Lynch. I don't think you were here. I don't think you
were here, Mr. Chair. Thank you.
Mr. Issa. If you could wrap up in one minute, please.
Ms. Sampson. Sorry. Yes. So, to just put a finer point on
it, local law enforcement agencies could not do their work
without ATF.
Mr. Lynch. Thank you for your courtesy, Mr. Chair. I yield.
Mr. Issa. I might recall the time the gentleman and I were
in the outback of Pakistan and the gentleman was hurt in a
sniper fire. So, we go back a long way on gun safety.
The gentleman is correct that we do need the Alcohol,
Tobacco, and Fire. We definitely do need ATF.
Mr. Graham, thank you for your decades of service. You,
obviously, stayed there because of your dedication to the very
mission that we're talking about today of making sure that guns
are not in the hands of people who are not entitled to have
them or may misuse them. Is that correct?
Mr. Graham. That's correct, Chair.
Mr. Issa. So, in that dedication in 37 years you've seen
some zigs and zags. Can you talk about what you've seen or saw
that might have changed in the last few years that concerns
you?
Mr. Graham. Certainly. From a field investigator
perspective all the way through the first and second level of
supervision I've personally conducted field inspections to
where errors were disclosed on an 4473. That is the transaction
record that individuals buy--complete when they buy firearms
through a Federal firearms licensee.
What concerns me is with the zero-tolerance policy ATF has
had a long-standing administrative action policy that did
address licensees' level of compliance or the level of
violations in compliance with the code of Federal regulation
and through the inspections they were given an opportunity.
Those violations that weren't directly linked to public safety;
those were corrected.
Mr. Issa. So, let me just interrupt you briefly. So, what
you're saying is that in the past your job was to get maximum
compliance knowing that mistakes are made, but that changed in
2021, didn't it?
Mr. Graham. Most certainly. It put a lot of focus where
there was minimal latitude allowed with the zero-tolerance
policy. However, there was the exception of presenting
extraordinary circumstances. However, those were to be
discussed during a held hearing at the various division levels.
Mr. Issa. Is that necessary? In other words, prior to 2021
do you believe that compliance with a clear threat of both the
cost that comes with going to court and the possibility of
losing that valuable license was sufficient to get a vast
majority of people to make every effort to comply?
Mr. Graham. Providing that the violations, Chair, did not
have a direct nexus to criminal activity the FFLs were provided
an opportunity to remediate.
Basically, it's the investigator's job to ensure that the
records that are executed are fully compliant simply because
it's those records that criminal enforcement uses to trace a
firearm to the last known legal possessor, and if those records
are inaccurate, it could, perhaps, affect how a warrant is
served, who the individual is that may be, perhaps, looked at.
So, prior to 2021 there were opportunities using the
administrative action program to address violations that were
found at a Federal firearms licensee given the previous
inspection history considered in the entire process.
Mr. Issa. Let me just give a couple of quick questions and
you may be not the only one that wants to answer it. Certainly,
during the Obama Administration Operation Fast and Furious went
counter to everything you normally did, allowing more than
2,000 weapons to end up in the cartels' hands.
That was a deviation from any sensible thing that you saw
during most of your 37 years. That was, quite frankly, not what
happened during the next four years after President Obama.
The question is should your agency be able to operate
substantially the same without regard to who happens to be in
the White House and should your mission be more consistent and,
in fact, looking at what happened with Fast and Furious, what
happened in the Obama Administration as an attack on guns and
particularly on their ability to collect money, which was a
separate program, versus the four-years of President Trump and
the eight years of President Bush before that, and now
President Obama--President Biden.
Do you see kind of a back and forth that reeks in general
of politics rather than your being able to do your job in a
consistent way? You can comment on any of these Administrations
you feel appropriate.
Mr. Graham. Quite frankly, Chair, I have no comment to make
on Fast and Furious. That was a criminal enforcement endeavor.
As far as their regulatory perspective is concerned, you
have both ATF agents and industry operation investigators that
are dedicated to upholding the United States Code, as well as a
Code of Federal Regulations.
When there are changes it not only affects how the
investigators deploy their onsite inspections--compliance
inspections--of a Federal firearms licensee but on the industry
member themselves.
There is a lot of back and forth, there's a lot of
confusion, and going back to the zero-tolerance policy did
create confusion as to last year or a few years prior, I may
have been inspected.
However, I wasn't cited for whatever that Code of Federal
Regulations citation was. However, this year during the current
inspection because of this new directive they are being pursued
for revocation.
Mr. Issa. OK. I want just a yes or no from anyone--
hopefully, everyone very quickly. In what happened that the
Chair was talking about a few minutes ago should this Committee
seek to mandate body cams anytime potential lethal force is
being used in any ATF operation? Yes or no.
Mr. Cleckner. Yes.
Mr. Graham. Yes.
Ms. Sampson. Yes.
Mr. Cummins. Yes.
Mr. Issa. Thank you. That was a yes, ma'am?
Ms. Sampson. Yes.
Mr. Issa. I got four yeses. I'll take it. We now go to the
gentleman from Virginia, Mr. Connolly.
That is hard to get but I will take yes for an answer. Mr.
Connolly?
Mr. Connolly. I say yes too, Mr. Chair.
Mr. Cummins, I just want to clarify something in your
testimony. You heard my colleague from New York entered into
the record the actual warrant which was not a no-knock warrant.
Is it still your testimony that what occurred--the tragedy
that occurred with Mr. Malinowski and his family was a no-knock
warrant?
Mr. Cummins. Because body cameras weren't worn, and the
doorbell camera was covered up we don't know what happened at
the front door.
I would say based on what we do know that 57 seconds I
described minus the time to allow for Mr. Malinowski to respond
to the crash in the door and whatever time it took them to
knock on the door, if they knocked after they covered up the
door--we know that it was 20 or 30 seconds, and my answer is
there's a distinction without a difference. All you hear is a
crash.
Mr. Connolly. All right. For the record--
Mr. Cummins. What do you know?
Mr. Connolly. For the record, you're a lawyer.
Mr. Cummins. Yes.
Mr. Connolly. The warrant filed was not a no-knock warrant.
Mr. Cummins. Not on its face. No, sir.
Mr. Connolly. That's right. Thank you. Just wanted to
clarify that.
Ms. Sampson, Mr. Cummins described really a horror that
should not occur to any American citizen or American resident.
Is there, however, distinctions in the solution?
The solution before us today is abolish the agency because
they engaged in behavior that was brutal or violent or beyond
acceptable norms. Do you believe that's the solution?
Ms. Sampson. Absolutely not.
Mr. Connolly. So, the very same people who condemned those
who called for that solution with the Minneapolis Police
Department after the George Floyd tragedy have a different
solution today for ATF.
For some reason this particular police force ought to be
abolished and no other, even if they also engage in violent
behavior, brutal brutality, and violation of the law. Do you
note the irony?
Ms. Sampson. I do, and with respect to the ongoing
investigation that's not what my area of expertise is. We, of
course, believe in accountability because we live in a
democracy. So, there should be accountability and
investigation.
Mr. Connolly. Right. The solution isn't to abolish the
agency.
Ms. Sampson. Exactly.
Mr. Connolly. In fact, the agency has some very important
missions, as Chair Issa just indicated. He said, ``no, we need
ATF.'' I agree with him. Reform it? Yes. Abolish it? Very
different kind of answer.
What would happen if we abolished the ATF? What kinds of
consequences might flow from that?
Ms. Sampson. There will be consequences for all Americans.
First and foremost, we would lose the only Federal agency
responsible for making sure that firearms are not trafficked
into our streets.
Mr. Connolly. Ah, maybe that's why some people don't like
the ATF, that particular charge--that they don't want
regulation of arms of any kind, and they don't like the Federal
agency that has that mission, which may be why for so many
years they have blocked the confirmation of an ATF director.
Ms. Sampson. That could be. All I know is that ATF is the
only Federal agency that we had and we're dealing with epidemic
gun violence.
Mr. Connolly. Well, let's look at that. So, if we abolish
it would that make it easier for criminal cartels to traffic
firearms in this country?
Ms. Sampson. Yes.
Mr. Connolly. If we abolish it would that, in fact,
strengthen Mexican cartels engaged in human trafficking, drug
trafficking, and arms trafficking?
Ms. Sampson. Yes.
Mr. Connolly. Would we expect more assault weapons to be
funneled to the Black market if some of my colleagues succeeded
in abolishing the ATF?
Ms. Sampson. Yes.
Mr. Connolly. Could it affect violent crime in the United
States?
Ms. Sampson. Absolutely.
Mr. Connolly. How so?
Ms. Sampson. Well, ATF right now, as I said, they are
responsible for regulating the industry and so we know that
most--almost every gun starts out in the legal market, and it's
funneled from the legal market, which are FFLs who are
regulated by ATF, into the illegal market.
So, if ATF is no longer there then that channel, which is
already larger than it should be, would overwhelmingly increase
and we would have more guns and more gun violence.
Mr. Connolly. So, if we abolish ATF as the Chair of the
Select Committee, not Mr. Issa, want to do and that is
supported by an agency that gave him an A+ rating in Gun Owners
of America that actually sells merchandise calling for abolish
the ATF--if we did that it's your testimony--I don't want to
put words in your mouth--that it would actually make Americans
less safe and would remove the only Federal agency charged with
trying to protect them from firearm violence and trafficking in
America?
Ms. Sampson. Yes, that is true.
Mr. Connolly. Thank you. I yield back.
Mr. Issa. I thank the gentleman.
We now go to the gentleman from Florida, Mr. Gaetz, for
five minutes.
Mr. Gaetz. Mr. Cleckner, what is the ATF's zero tolerance
policy?
Mr. Cleckner. It is a change in how they used to enforce
violations of the law against FFLs to no longer allow them to
fix errors or to improve their compliance. It has no tolerance
for these typos and wants to revoke their licenses.
Mr. Gaetz. Give me a flavor of the type of errors that
might have previously resulted in the ATF working with a
license holder and now would result in the agency trying to
revoke that license.
Mr. Cleckner. I'd love to give you the examples that fly in
the face of what the zero-tolerance policy says it is, which is
prohibited persons and background checks and things like that.
The problem is my client did none of those things that are
even stated in the zero-tolerance policy and they're still
falling subject to getting revoked. We can talk about a typo,
or an abbreviation of somebody's name when they shouldn't have
done that.
We can talk about accidentally listing United States as the
country instead of paying attention to the box saying county.
Things like that.
Mr. Gaetz. Ms. Sampson gave testimony that these are
essential--that these are necessary regulations to enforce at
the finest point. Do you have a response to that testimony?
Mr. Cleckner. Some are essential, I agree--the background
check requirements, the identification requirements, and making
sure we know who the purchaser is, that they're not a
prohibited person.
That's not what this exact case I'm dealing with has to do
with at all. There are no prohibited persons involved here.
There were no missing background checks. There was no missing
anything that would actually affect public safety.
Mr. Gaetz. In the case I'm aware of in my district, the
error wasn't even made by the license holder. The error was
made by the Florida Department of Law Enforcement because they
were charged with a certain feature of the background check.
So, if a license holder has to rely on a State entity to do
some portion of the check and they make an error that certainly
shouldn't result in the license holder experiencing a
revocation action, should it?
Mr. Cleckner. We agree it should not.
Mr. Gaetz. Yet, that's the circumstance and I'm wondering
just how you hear that testimony, Mr. Cummins, as you deal with
representing a family that's dealt with such loss at the hands
of such a grave error. Does the hypocrisy not ring pretty loud?
Mr. Cummins. I've been on all sides of this. I've been a
United States Attorney. I've prosecuted more gun crimes than
probably many prosecutors in the country. It was the number one
priority in the Bush Administration to prosecute gun crime. Not
administrative gun crime, real gun crime.
People that are out committing crimes with guns, and we
prosecuted a whole bunch of them. I've also been a defense
attorney and I've been with families and people that are in
prison.
I've been to prisons and met with people. Anybody that
thinks that the guns that are being sold in private sales are
driving the level of crime we're seeing in our community, on
the list of things that are driving the level of crime we see
in our community private gun sales is way down at the bottom
and there's a great number of other things that aren't being
discussed here at all that have to be driving it more than--
Mr. Gaetz. I want you to be able to respond specifically to
Ms. Sampson's testimony that guns make their way from the legal
marketplace to the illegal marketplace, because it seems to me
hearing that testimony that then you wouldn't attack the people
who are trying to legally engage in the legal transfer of
firearms, right.
You would go after the people engaging in illegal conduct.
What's your reaction to that testimony?
Mr. Cummins. I agree with that. I think gun crimes are
committed by people, not guns, and we need to focus on the
people that are committing the crimes, and we need to be asking
ourselves, why is this person a criminal--what's their
background.
I know the answers to a lot of those questions because I've
been living it for 35 years. It doesn't really have much to do
with where they acquired the firearm.
Mr. Gaetz. Everything we know about the law for someone to
be a criminal they have to have the intent to commit a crime.
That's the mens rea, right?
Mr. Cummins. Correct.
Mr. Gaetz. Do you worry as you look at some of the ways in
which these laws are being weaponized against people that we're
getting away from someone actually wanting to commit a crime
and, indeed, people are experiencing this really, really harsh
regulatory action when they want to be legally compliant?
Mr. Cummins. I would suggest that the tactics that were
used in the Malinowski search would be incompetent and reckless
if it was a very serious crime. It's even much more offensive
because this is not a serious crime that they suspected. It's
probably the lowest level crime that would ever be drug into a
United States Attorney's office.
Mr. Gaetz. So why did this happen? Is this just to send a
message? Is this someone's incompetence? Do you wonder about
that?
Mr. Cummins. I wonder about it, and that's probably a
question for this Committee to answer, not me. I'm certainly
concerned about it, and it makes this tragedy even harder to
take to think that it might be politically motivated or for
some other reason.
Mr. Gaetz. Thank you. I see I'm out of time. I yield back.
Mr. Steube. [Presiding.] The gentleman's time has expired.
I now recognize Ms. Plaskett for five minutes.
Ms. Plaskett. Thank you very much.
First, I want to say it's very interesting that we keep
talking about the fact that there were no body cams on the ATF
officers that were there to execute that warrant.
What's very interesting--and I'd like to admit and submit
into the record a letter that's been sent from ATF to Mr. Jim
Jordan dated May 21, 2024, from the Bureau of Alcohol, Tobacco,
and Firearms and Explosives.
Mr. Steube. Without objection.
Ms. Plaskett. Thank you. In that letter, it reminds this
Congress that in 2021, the department directed its law
enforcement components including ATF to develop plans for a
phased implementation of body worn cameras.
The very thing that they're trying to do, which is to
eliminate the ATF, is the reason that they don't have body
cams, because they didn't give them the funding for it.
Congress has specifically stated in its appropriations that
they don't want to fund ATF.
They don't want to give them the money to be able to
operate. They don't want to give Mr. Cleckner's clients
sufficient ATF officers to be able to quickly do the kind of
paperwork that they need.
That's why they're taking so long. They don't want to give
them the funding to be able to have body cams and so ATF has
only a third of its individuals who are wearing body cams, and
I have specifically requested from Congress the funding so that
everyone can wear those body cams and my colleagues have denied
that.
They're the ones who have said they don't need that money.
Let's get rid of ATF. They have legislation to abolish the ATF,
the Elimination of the ATF Act--Abolish the ATF Act and
eliminate this woke, weaponized agency--everything's woke when
you don't like it--eliminate it and that way these are the
reasons.
So, they want to have it both ways. They want to say that
they don't have body cams and that's the reason they're--we
feel sorry for people who haven't had the body cams.
They're the reason they don't have them. Point it right
back at yourself why those body cams weren't on them and see if
that continues to work for you.
We're also talking about another thing that was discussed,
which I found very interesting was that individuals who are
doing this as hobbies.
One of the reasons that we changed the rule to the engaged
in business rule is because an individual who can have as his
primary income a large income can then sell a lot of firearms
and not be considered a firearms dealer because their primary
income is more than the firearms income that they're doing,
even if it's voluminous the amount of firearm sales that
they're making if their primary income level is higher.
So, a couple years ago in 2022 President Biden signed the
bipartisan Safer Communities Act which has as one of its rules,
a rule with regard to no longer can an individual hide the fact
that they are by all accounts, by a common law person's
account, an actual firearms dealer and not a hobbyist.
One of the ways I would look at determining if, in fact, a
person is a hobbyist as opposed to a firearms dealer is--Ms.
Sampson, in your opinion is someone who buys and then almost
immediately resells at least 150 firearms in a three-year
period a hobbyist or an unlicensed gun dealer?
Ms. Sampson. If that is what a person was doing then they
would be more likely to be an unlicensed gun dealer.
Ms. Plaskett. Is it concerning to you if someone sells 150
firearms and conducts no background check on the individuals
who are purchasing those firearms?
Ms. Sampson. Yes, because ATF data shows that those
unlicensed and unbackground-checked sales usually end up going
to prohibited purchasers.
Ms. Plaskett. I'd like to submit for the record the actual
search warrant--the unsealed application for a search warrant
and the affidavit and other information therein which on page
28 states that as of February 27, 2024, approximately six
firearms are known to have been recovered in the commission of
crimes. Those are related to the firearms that Mr. Malinowski
purchased and then sold.
Mr. Cummins. Mr. Chair, could I--
Ms. Plaskett. No, I'm speaking. It's my time.
Mr. Cummins. OK. I'm sorry.
Ms. Plaskett. OK. Thank you. Then, in your opinion, Ms.
Sampson, would ATF be justified in being concerned when someone
sells a firearm to an individual who has been convicted of
robbery and is prohibited from owning a gun?
Ms. Sampson. Yes, because selling to a prohibited purchaser
is a violation of the law.
Ms. Plaskett. In your opinion, would ATF be justified in
being concerned--
Chair Jordan. [Presiding.] The time of the gentlelady--the
time of the gentlelady--
Ms. Plaskett. --when selling a firearm that lands in the
hands of a 15-year-old member of the Norteno criminal street
gang?
Ms. Sampson. Yes.
Ms. Plaskett. Thank you. I yield back.
Chair Jordan. The gentlelady yields back.
Mr. Cummins, I think Mr. Steube will give you a chance to
respond.
Mr. Steube. Mr. Cummins, did you want to respond to that?
Mr. Cummins. I just wanted to quickly say--
Ms. Plaskett. Is this his time now?
Chair Jordan. Yes, it's his time.
Ms. Plaskett. OK.
Mr. Cummins. The Ranking Member made a misstatement that's
been repeated in the press and I'd just like to correct it.
That affidavit refers to approximately--I think it's 142
but call it 150 guns--that Mr. Malinowski purchased over four
years, which I can tell you--I could name a lot of people in
Arkansas that have bought 150 firearms in four years. It only
documents six, I believe, sales of any firearms in that
affidavit, not 150. It only--it documents that he purchased 150
guns, but it only documents that he sold about six.
Chair Jordan. Which you're allowed to do in America, right?
Mr. Cummins. As far as I know.
Chair Jordan. The gentleman is recognized.
Mr. Steube. This whole case is outrageous to me and, Ms.
Malinowski, I feel like we owe you an apology on behalf of the
American government today because ATF isn't going to give you
that apology.
So, we'll do it today on behalf of our government who
just--I'm kind of uniquely situated. I have a military
background, but my father's a retired sheriff, did 20 years on
the SWAT team, executed countless search warrants.
My brother's 10 years on the SWAT team, still on the force,
executed countless search warrants and you have conversations
with them. I have a military background so I kind of understand
clearing a room and that sort of thing, and when they execute a
search warrant, they would wait until the individual wasn't at
their home where they knew that there was a firearm present to
avoid a situation where one of their officers were injured.
Your testimony is and it's in the record that they followed
Mr. Malinowski. They knew where he worked. Mr. Gaetz made a
very good point that he worked at an airport, a secure
environment where it would have been very easy to go in and
execute a search warrant, and if they were going to arrest him
or question him do that there were there were no weapons
involved. It would have been peaceful.
Did ATF ever serve him with an administrative cease and
desist letter?
Mr. Cummins. No, sir.
Mr. Steube. Did he have any--
Mr. Cummins. Not to my knowledge.
Mr. Steube. Did he have any knowledge or understanding that
he was being investigated for any type of crime?
Mr. Cummins. Well, obviously, he's not available for me to
ask that question to but to the best of my knowledge and based
on our investigation the answer is no.
Mr. Steube. You and his wife, obviously.
Mr. Cummins. Yes, sir.
Mr. Steube. Since Malinowski did not receive a cease-and-
desist letter did he ever get any other--well, I just asked
that.
In the ATF search warrant application agents indicate that
they talked to him on February 8th, just over a month prior to
the raid. The agents indicate that he attempted to elude them.
Is there any indication that Mr. Malinowski was ever aware
that the people following him were law enforcement officers?
Mr. Cummins. No. That portion of the affidavit is comical.
Mr. Steube. Would you like to expand?
Mr. Cummins. Maybe more--maybe embarrassed. It's an
irrelevant portion in the affidavit where they talk about
traffic and try to follow him. It sounds like somebody that
isn't a very good driver to me.
I'm familiar with the area that they're describing, and
everybody is in jeopardy when they make that transition. It has
nothing to do with this case.
Mr. Steube. Again, it was, like, 6:00 in the morning. So,
he doesn't know he's being investigated. There's no, like,
letter that's sent that you need to cease and desist of what
you're doing or we would like to have a conversation with you.
It sits hard with me because I would react the exact same
way. If somebody beat my door in at 6:00 in the morning, I can
guarantee you myself and my wife would be approaching the door
with a firearm.
So, it's not--and you would think that the ATF agents would
also conclude that that's a reasonable response to your door
getting beaten in at 6:00 a.m., when you don't know you're
being investigated. Does ATF typically have body cams? Does the
Little Rock Police Department typically have body cameras?
Mr. Cummins. Interestingly, according to my understanding
Little Rock police does wear body cams, but they didn't have
them on that morning and so they were under the supervision of
ATF, and you have to ask ATF why Little Rock didn't have theirs
on.
Mr. Steube. Little Rock typically does have body cams and,
again, my experience with my family they have body cams and if
they would have turned them off in the execution of a search
warrant that would be a very big problem for any law
enforcement agent that is involved in an execution of a search
warrant with no body cameras--
Mr. Cummins. That's one of the specific times they'd be
required to have them on.
Mr. Steube. Did ATF ever have an opportunity to serve this
search warrant at a time when it would have been less
dangerous?
Mr. Cummins. Probably a thousand opportunities that we
could sit here and speak.
Mr. Steube. I've only got--I'm just outraged. Mr. Goldman
said that it was a no-knock--it was not a no-knock warrant and
you stated that there was, like, 47 seconds or something.
So, if they did knock at 6:00 in the morning it's
reasonable that the Malinowskis didn't hear that because you
wouldn't be approaching--if somebody knocked on my door at 6:00
in the morning, I wouldn't assume that it's a bad guy because
they wouldn't knock.
If you hear a door beaten in at 6:00 in the morning, there
was such a short period of time between the door getting kicked
in and knocked in, and then Mr. Malinowski being shot that it's
reasonable to believe that they didn't hear the knock if there
was a knock, which I'm looking forward to the Judiciary
Committee asking all these questions.
I hope that the Chair is going to ask for and I know they
have asked for every officer that was present that day because
I would love for this Committee with the oversight authority
that we have over the ATF to depose every single one of those
officers that were present that day and get a sworn deposition
from every single one of those people.
Again, Ms. Malinowski, I'm sorry for your loss and the loss
of your family to a clear abuse of the rule of law, in my
opinion.
I yield back.
Chair Jordan. The gentleman yields back.
The Chair now recognizes--the gentleman from New York is
recognized.
Mr. Goldman. Thank you, Mr. Chair.
First, I want to express my condolences to Ms. Malinowski.
I'm terribly sorry for your loss and for what you had to endure
that day.
I do want to get into some of the details because I think
they're very important. It was actually the search warrant
affidavit, without going into great detail, demonstrates that
Mr. Malinowski did purchase 142 guns from 2019 to February 27,
2024.
He resold at least nine because we have the six plus the
three to the undercover firearm. He also had at various times
at various gun shows 12 or 13 firearms on the table to be sold
and he offered one witness, who was the one convicted of
robbery and therefore was a prohibited person, many more
firearms than what he purchased.
Many of these firearms were purchased just days before they
were sold. So, whether or not you want to assert, Mr. Cummins,
that this was a hobby of his you agree that there's certainly
probable cause to believe that he was selling guns to
individuals without a license and without performing a
background check because he didn't have a license?
Mr. Cummins. There's no allegation that he knowingly sold a
gun to anyone that was prohibited--
Mr. Goldman. That's not what probable cause--
Mr. Cummins. --and under ATF's interpretation of--
Mr. Goldman. You don't have to--you don't have to do that.
I just said that he--
Mr. Cummins. I'm just answering your question.
Mr. Goldman. Selling without a license. Like, there's
certainly probable cause that he was in the business of selling
without a license.
Mr. Cummins. Under ATF's interpretation of a vague, vague
regulation.
Mr. Goldman. Not yours. So, you would say that if you
purchase 142 firearms within a four-year span as a former U.S.
attorney and you have evidence of nine sales within that period
of time plus many other more weapons offered for sale, you
would say as you, not the ATF--as you as a former U.S. attorney
that there is no probable cause to believe that this person is
in the business of selling guns without a license?
Mr. Cummins. I would agree that this could be probable
cause.
Mr. Goldman. Thank you. So, we have probable cause. The
Little Rock police are there with the ATF. They go in and the
one fact that doesn't ever seem to be mentioned here, and that
the Chair's letter does not mention is that an ATF agent was
shot. Is that correct, Mr. Cummins?
Mr. Cummins. That's correct.
Mr. Goldman. OK. So, an ATF agent was shot and then in
response fired back at Mr. Malinowski. Is that accurate?
Mr. Cummins. That is accurate and it's also a tragedy.
Mr. Goldman. It is a tragedy. I agree. I agree. You also
agree, I assume--I was an Assistant U.S. Attorney for 10 years,
secured many, many search warrants, oversaw the execution of
them and arrest warrants. They're routinely done at 6 a.m. Is
that right?
Mr. Cummins. A lot of warrants are executed at 6 a.m.
Whether I agree with that as a tactic is another discussion.
Yes, that's not uncommon.
Mr. Goldman. Yes. No, OK, I want to understand that we're
making a big deal out of the 6 a.m. here, but that is the
standard time that law enforcement executes arrest warrants and
executes search warrants.
So, I certainly am sorry that this is a tragedy that Mr.
Malinowski died. I'm also sorry that Mr. Malinowski shot an ATF
agent during a search, and I think if he were truly not in the
business of selling firearms the way to respond to a search
warrant is to allow your house to be searched and to cooperate.
It is insane to me that we are sitting here criticizing the
ATF because they retaliated with deadly force after someone
shot an agent. That is what happened here. This was not an out
of the ordinary execution of a search warrant. This is a
standard operating procedure.
Mr. Cummins acknowledges that there was probable cause to
do it and now there is an investigation of this incident. Is
that right, Mr. Cummins?
Mr. Cummins. There has been an investigation that's been
handed over to the local prosecutor.
Mr. Goldman. So, the local prosecutor is investigating it,
and as a prosecutor that none of the witnesses or the relevant
people involved are allowed to discuss this publicly while an
investigation is going on, correct?
Mr. Cummins. I don't know what the policy of ATF is on
that.
Mr. Goldman. Well, was it your policy as a prosecutor? It
certainly was mine. Witnesses do not talk to the public while
there's an investigation going on.
One last question. As a U.S. Attorney did you ever send a
notification to a target of yours who's selling a hundred--who
is buying 140 guns, selling at least nine of them, that, hey,
you're under investigation--just a heads up?
Mr. Cummins. I hope I would have, yes.
Chair Jordan. The gentleman's time--
Mr. Goldman. You would have? You would have reached out and
said, hey, by the way I'm investigating--
Chair Jordan. The question was asked, and the question
asked and answered.
Mr. Goldman. --so you can go ahead and destroy all and hide
all the evidence? You would have done that? You notified the
targets that you would--
Mr. Cummins. I have.
Chair Jordan. The time of the gentleman has expired.
Mr. Goldman. I yield back.
Chair Jordan. The gentleman from--the gentleman yields
back. The gentleman from North Carolina is recognized for five
minutes.
Mr. Bishop. Mr. Cummins, with some economies of time do you
wish to respond to the last barrage?
Mr. Cummins. Well, only to say that nobody disputes that
when a law enforcement is fired on that they have a right to
fire back.
The point is that everything that created that situation
was incompetent, unnecessary, and reckless and it defied the
law because as a former assistant--the Fourth Amendment cases
that allow either a no-knock or what I would call a tap and go
type entry with no real waiting for someone to come to the door
are only justified by exigent circumstances that do not exist
in this case.
So, in my opinion as a former U.S. Attorney this was a
completely illegal search because of the forced entry and the
lack of time they gave the occupants of a fairly large home to
get up at 6:00 in the morning.
The law requires them to wait for enough time--for a
reasonable amount of time for someone to come to the door and
admit them in.
Chair Jordan. Fifty seconds is not a reasonable--
Mr. Goldman. I assume the local prosecutor--
Mr. Bishop. Whoa, whoa, whoa. My time. My time. My time.
You've had plenty.
Mr. Cummins, I appreciate that very effective rebuttal.
Here is what's interesting to me as this hearing evolves, I
hear Mr. Goldman defending the practice that he says is engaged
in every day, and earlier on the Ranking Member invoked the
Breonna Taylor episode and I've just been sitting here
reviewing it.
Mr. Goldman said earlier on, well, this wasn't a no-knock
warrant. OK. What's the difference in the situation if they
knock and they blow in 20 seconds or it's a no-knock? In fact,
in the Breonna Taylor case that wasn't a no-knock warrant. They
said they knocked and waited 45 seconds and they went in.
Here's something that's interesting. In the Breonna Taylor
thing, she was killed on March 13, 2020, in that--it was
execution of a search warrant just like this one.
Ms. Plaskett. Breonna was murdered. Murdered.
Chair Jordan. The time belongs to the gentleman.
Mr. Bishop. The police officer--the first police officer
was fired June 20th. In September 2020, Louisville entered into
a $12 million settlement with the family.
Have you been made any overtures by the Department of
Justice to settle liability against the government on behalf of
Mr. Malinowski's family?
Mr. Cummins. No, sir.
Mr. Bishop. In September, also, one of the police officers
was indicted for willful endangerment or wanton endangerment
and a second officer was fired in January 2021. A third officer
was retired in April 2021.
Oh, I left out in October 2020, grand jury testimony was
leaked. Later in 2021, DOJ indicted four officers and even now
is retrying one who--for the hung jury. I don't understand the
difference. I don't understand my colleagues' reaction that
this--
Ms. Plaskett. If you would yield, I could share the
difference with you.
Mr. Bishop. No, you've talked for a long time. I'm going to
talk during my time.
Ms. Plaskett. OK. Then, I will tell you--
Mr. Bishop. Maybe, you can provide context for your
egregious double standard. No one that I recall on the
Republican side when the Breonna--by the way, you said this was
interfering in the process to have this hearing.
The first time Congress had a hearing was in June 2020,
over the Breonna Taylor episode. There was no concern about
interfering. The concern was about the use of this kind of
tactic to enter unnecessarily and jeopardize people's lives.
Now, suddenly that seems to be of no concern whatsoever.
Can you account for that difference, Mr. Cummins?
Mr. Cummins. The facts are very similar, although that was
a drug investigation and under the case law they are allowed to
go in faster because of the potential for destruction of
evidence.
Mr. Bishop. Yes. So, in this case we're talking about
conduct that the law would say is malum prohibitum, not malum
in se.
In other words, the reason they entered this residence and
jeopardized this entire family including Ms. Malinowski, who
has no allegations against her, and shot this man dead is
because he didn't have the proper license for the business,
they say he was engaged in, and it's even disputed about
whether he was engaged in that business.
Mr. Cummins. Correct.
Mr. Bishop. In that case Breonna Taylor's boyfriend was
without any contradiction engaging in illicit drug activity and
receiving and dealing. He was a drug dealer, and he was
carrying it on in her place of residence.
I can't account for the gross disparity except that
Americans hear a lot and I hear a lot about concern about
double standard of justice. Is there a double standard of
justice here, Mr. Cummins, in those two episodes?
Mr. Cummins. There appears to be and that causes a loss of
trust in government and in these agencies.
Mr. Bishop. Mr. Cleckner, the only place I see reaction
besides a hearing like this exposing stuff is that Attorney
Generals across the Nation have sued over the two rules--the
engaging in the business rule, that's an issue here, I guess,
really, and the pistol brace rule.
Why is that the only recourse that people have, to have
State Attorneys general file litigation?
Mr. Cleckner. I don't understand your question,
Congressman. Are you saying that they should be--
Mr. Bishop. My time has expired anyway. I wanted to get one
more. I've run out.
Chair Jordan. Well, we can give you a chance if you want to
rephrase the question.
Mr. Bishop. Yes, if I can--thank you, Mr. Chair. If I can
rephrase the question. Here's what I'm saying.
Congress doesn't seem to be able to do anything to press
back against this overreach, at least it hasn't, including
under Republican leadership.
The only thing that seems to be available to people for the
government to do to provide recourse, is I see State Attorney
Generals out filing lawsuits in great numbers, 21 States--in
one case, 24.
Is that the only recourse that people have--can expect from
their government in response to these kinds of abuses?
Mr. Cleckner. It apparently is the only one they have but
it's not what they should expect. We should expect that the
administrative agency is reined in a little bit here.
Mr. Bishop. Thank you, Mr. Chair.
Chair Jordan. We're trying. We're trying.
The Chair recognizes the gentlelady from Texas for five
minutes.
Ms. Crockett. Thank you so much, Mr. Chair, and the
vigorous back and forth regarding Breonna Taylor.
First, I do appreciate you being here and your answering of
the questions. I do want to make sure that before we go down
this road, I clarify some things that were different in the
Breonna Taylor case.
Second, the officers were considered to have botched what
took place on that day because they fired blindly into a home,
meaning that they initiated some sort of deadly force, and the
only information that they had was allegedly that this was the
place of some sort of drug activity.
At that point in time, you ended up having her boyfriend
who returned fire believing that someone was breaking in. It is
very different when you are returning fire versus initiating
fire and there was no need to do so.
In addition to that, no-knock warrants and knock warrants
are basically a couple of seconds of difference, if I'm going
to be honest.
One of the things that I worked on in the State legislature
was actually making sure that we could reform no-knock warrants
because it is a risk not only to the people in the homes,
especially in a State like Texas where everyone is allowed to
have a gun, but it's also a huge risk to law enforcement.
So, being able to do this effectively--this is dangerous
work that law enforcement engage in every single day and I do
want to be clear that I am always sorry for the loss of life. I
don't care about the race.
I don't care about any of those things and, honestly, I
believe in the criminal justice system. I believe that if
someone is accused of something they should have their day in
court.
So, I do want to say that I take issue with anyone losing
their life, period, even if it's somebody that's accused of a
crime and I believe that they should go through due process and
have an opportunity.
In this particular set of circumstances, we know that if
somebody shoots at me--in fact, some would argue that last week
I had a colleague that decided she wanted to shoot at me--I'm
going to shoot back and that's what happened here.
What's more frustrating for me in this hearing and what
seems to be a pattern, is that we continue to attempt to
litigate pending cases. We saw that one of the witnesses in the
Trump trial.
He came and testified before us last week and then he went
and testified this week in front of the judiciary, and then we
know that this is still a pending case and I do want to afford
an opportunity for those that will be granted access to
discovery, video, whatever video doesn't exist, as well as any
statements, depositions, all those things, some folk that have
access to all the information and, ultimately, if this needs to
go to court having a jury that will make a decision based on
the facts and the evidence.
So, with that, I want to make sure that we move onto
something else, which is the reality that--in fact, let me do
this before I run out of time.
Mr. Chair, I ask unanimous consent to enter into the record
``97Percent's Annual Gun Owner Survey,'' October 2023 report
which details these and other statistics pertaining to gun
owners' views on commonsense gun control policies and I'm going
to go back up to what those views are.
Chair Jordan. Without objection.
Ms. Crockett. Thank you so much.
The 97Percent, a bipartisan group of gun owners and nongun
owners which conducts research on gun safety policies, found
that with regarding to commonsense gun policies 86 percent of
gun owners, well over the simple majority, support keeping guns
out of the hands of violent criminals.
Seventy percent of gun owners say that they wish we would
enact some kind of gun reform. Sixty-six percent of gun owners,
for instance, think guns should be restricted on school grounds
and 67 percent think that they should be restricted in
government buildings, and I will tell you that I fall into
those categories because I am a licensed gun owner.
Yet, despite the majority of Americans and the majority of
gun owners, Republicans last week passed a bill out of the
House that eliminates States' ability to regulate firearms on
private property, government buildings, playgrounds, and gun-
free school zones.
If that's not hypocrisy I honestly don't know what is, and
it doesn't end there. As the party self-proclaiming itself as
law enforcement's biggest advocate and supporter Republicans on
this very Committee have introduced legislation to abolish the
law enforcement agency entirely.
Ms. Sampson, I have a few yes or no questions. I may only
get to one. Yes or no, are you familiar with the role of ATF?
Ms. Sampson. Yes.
Ms. Crockett. To your understanding the ATF is in fact law
enforcement, correct?
Ms. Sampson. Yes.
Ms. Crockett. Does ATF duties include preventing incidents,
investigating cases, and recommending prosecution for issues of
violent crimes and weapons for gangs and career criminals?
Ms. Sampson. Yes.
Ms. Crockett. Narcotic traffickers?
Ms. Sampson. Yes.
Ms. Crockett. Domestic and international arms traffickers?
Ms. Sampson. Yes.
Ms. Crockett. Armed human traffickers?
Ms. Sampson. Yes.
Ms. Crockett. Terrorists?
Ms. Sampson. Yes.
Ms. Crockett. With that, I will yield.
Chair Jordan. Bryan Malinowski was none of those. The
gentlelady yields back.
The gentlelady from Florida is recognized.
Ms. Cammack. Thank you, Mr. Chair.
I am first and foremost very, very sorry, Ms. Malinowski.
As the wife of a SWAT medic, from one wife to another, I am
deeply apologetic, and I can't even begin to understand the
pain and suffering that you and your family are going through.
My husband, as I said, who is a SWAT medic, when we heard
about this case, he was so thoroughly disgusted and
heartbroken. That is truly, I believe, not a reflection on the
good men and women in law enforcement that intend to do their
jobs the best they can and we're so very sorry.
Mr. Chair, I'm also deeply disappointed that the discussion
today has been centered around ways to restrict constitutional
rights to law-abiding citizens instead of the mental health
crisis that we face in this country, which is a massive driver
of crime in this country.
Also, very little has been talked about when we're
discussing the overgrown, overly aggressive, and woefully
inadequate Administrative State.
So, with that, I'm going to jump right into Mr. Cleckner.
Thank you for returning back to Congress to provide testimony.
In a March 10, 2023, Judiciary Subcommittee on the
Administrative State you addressed the ATF stabilizing rule--
brace rule. In your testimony you said, quote,
This rule effectively gives the ATF the power to determine who
is a felon by the stroke of a bureaucrat's pen. This is not an
appropriate enforcement of law. It is tyranny.
I agree with you.
What is sad is that in this rule, we are seeing a microcosm
of what is happening at other Federal agencies. The American
people are under assault by the Biden Administration's
regulatory regime from all corners of the Federal Government.
That is why I introduced the REINS Act. As many of you
know, the bill would address regulatory overreach by requiring
every new major rule proposed by Federal agencies be approved
by Congress before going into effect.
This is the reassertion of Article 1 authority that is how
the Founding Fathers intended, not unelected, nameless,
faceless bureaucrats arbitrarily dictating law. After all, we
know that Americans pay $2 trillion a year, in additional
compliance costs--economic loss--for this aggressive regulatory
regime.
The stabilizing brace rule and ATF's zero tolerance policy
are prime examples of regulations that not only impose
compliance costs on firearm retailers but infringe on
Americans' basic Second Amendment rights.
So, I'm going to go down the line and I'm going to come
right back to you. Mr. Cummins, yes or no, should Federal
agencies be able to shift criminal statutes and rewrite law?
Mr. Cummins. No.
Ms. Cammack. Thank you. Ms. Sampson?
Ms. Sampson. That's not what happened here. They're
enforcing a Congressional rule.
Ms. Cammack. I did not ask that. I asked for a yes or no.
Should Federal agencies be arbitrarily able to write law?
Ms. Sampson. No, and that's not what happened here.
Ms. Cammack. Thank you. Mr. Graham?
Mr. Graham. No, Congresswoman.
Ms. Cammack. Mr. Cleckner?
Mr. Cleckner. No.
Ms. Cammack. Thank you.
Mr. Cleckner, my understanding is that this rule disregards
ATF's own approval of stabilizing braces in 2012, correct?
Mr. Cleckner. This current zero tolerance policy rule? I'm
not sure what you're asking.
Ms. Cammack. Regarding how they classified the pistol
braces as an accessory, therefore, not subject to full ATF
regulatory standards.
Mr. Cleckner. Right.
Ms. Cammack. So, in the time since they approved them in
2012 to today ATF has done a full 180 on the issue and has
chosen to impose erroneous regulations on firearm accessories
that were originally intended for disabled veterans, correct?
Mr. Cleckner. Uh-huh. That's true, and on which people
relied on their opinion when they were acting and they're now
in trouble for.
Ms. Cammack. Absolutely. The owners of these firearms would
now be committing a felony if they did not register, surrender,
or destroy the accessory?
Mr. Cleckner. Correct, which means their right to even
possess a firearm for the rest of their life is now gone.
Ms. Cammack. Exactly. Did Congress ever approve this
legislatively?
Mr. Cleckner. No, ma'am.
Ms. Cammack. Can you quickly outline the specific penalties
for failing to register a pistol brace under this rule?
Mr. Cleckner. Quickly, yes. Felony.
Ms. Cammack. Financial as well?
Mr. Cleckner. Oh, for sure. Defending yourself, financial
costs, losing the right to protect yourself or have firearms in
the future. All those things.
Ms. Cammack. Right. So, now that this rule is being
litigated in the Fifth Circuit Court of Appeals considering the
rule has criminal implications, can you speak to the risks
associated with circumventing the legislative process in this
case?
Mr. Cleckner. The risks now, going forward, are even
companies don't know what they're supposed to do because it
changes back and forth so many times.
I think people are afraid, as someone said earlier, about
what they're supposed to do, what they're going to get in
trouble with, whose guidance they're supposed to follow. It's
all unclear.
Ms. Cammack. I appreciate that, and I know my time is
expiring. I have a list of questions for you, Mr. Graham, that
I will submit for the record.
I think it is clear that what we are seeing today,
particularly, under the ATF is a gross overreach, a
weaponization of the Federal Government in its true form. It's
something that I think Republicans, Democrats, and all
Americans should be equally concerned about.
With that, I yield.
Chair Jordan. The gentlelady yields back.
The gentlelady from Wyoming is recognized.
Ms. Hageman. I'm going to continue with that same line of
questioning.
Mr. Cleckner, this Subcommittee's last hearing, in fact,
was on the Biden Administration's use of lawfare against
political opponents and we have seen that play out in a variety
of ways including in the case that's been ongoing in New York
City as well as what's been happening in Georgia and Florida,
etc.
Each and every ATF rule subjects more Americans to legal
compliance which, if ignored, even unknowingly, imposes
criminal and monetary penalties as well as additional fees and
legal costs.
Mr. Cleckner, do you think that the rulemaking agenda is an
attempt to employ lawfare against Americans who stand for the
Second Amendment?
Mr. Cleckner. I do.
Ms. Hageman. OK. If so, what does that say about where we
stand when the Biden Administration considers its citizens who
believe in and adhere to the Constitution as its political
enemies?
Mr. Cleckner. That is scary if that's their motivation and
it's very difficult to comply with for sure.
Ms. Hageman. In December 2023, the ATF Little Rock field
office received a case referral for Mr. Malinowski. In the same
month it opened its investigation and spent the next several
months surveilling his activities including tailing him and
placing trackers on his car.
I find this absolutely frightening that we have agencies
who are willing to go to this extent with a law-abiding
citizen. The ATF knew his movements, his schedule, where he
was, and when he was there and, therefore, the ATF knew when he
was home and when he wasn't, meaning that the ATF decided to
execute the search warrant when he was home even though they
knew that he would have firearms in the home.
In fact, Mr. Cummins, you have uncovered the fact that the
ATF team members gathered to execute the search warrant the
week before the raid, but then changed their plan when they
learned that Mr. Malinowski would not be home. In other words,
they wanted him there and they wanted him there bad.
Mr. Graham, is this standard operating procedure for the
ATF to ensure that the target is there when they executed this
kind of a search warrant or can they do it without the target
being in the home?
Mr. Graham. Madam Congresswoman, unfortunately, I have no
firsthand knowledge of the warrant process and/or how they are
executed.
Ms. Hageman. Well, Mr. Cummins, what about you? Do you
think that this would be standard operating procedure to wait
until the gentleman was there at 1:00 in the morning, knowing
that he had guns, versus just going ahead and executing the
search warrant when he wasn't there?
Mr. Cummins. Well, clearly, it's a search warrant. He
didn't need to be there. I think they definitely wanted him
there and I think that this does happen in Federal law
enforcement quite a bit.
They want the target there because they want to surprise
them, and this is part of the reason they go at 6:00 in the
morning. They want to surprise them. They want them in their
night clothes. They want their hair to stand up.
They want them scared, angry, shocked, and then they want
to violate their Fifth Amendment right to not incriminate
themselves before they remember they have a Sixth Amendment
right to call their lawyer.
So, it's a trifecta. They want to violate three
constitutional rights--the Fourth, Fifth and Sixth--all in one
scoop and in this case, it didn't work out for them.
Ms. Hageman. Well, and it seems to me that the overarching
issue here is that the government should have standards in
place to ensure the safety of all citizens in the conduct of
its investigations and actions even when criminal activity is
suspected.
In the case of execution of a search warrant for Mr.
Malinowski the ATF appears to have deviated from this premise
and standards which are in place and, in fact, ended up
executing Mr. Malinowski himself.
Mr. Cummins. That's exactly right.
Ms. Hageman. The Constitution secures our rights by placing
limits on the Federal Government's power even when Americans--
an American citizen is suspected of being engaged in unlawful
behavior.
As you just indicated, the Fourth Amendment secures
citizens against unreasonable search and seizure. The Fifth
Amendment ensures due process.
The Sixth Amendment guarantees--has certain rights for
criminal defendants and the Eighth Amendment provides against
and protects us against cruel and unusual punishment.
Mr. Cummins, is it fair to say that a responsible execution
of a search warrant is one of the primary mechanisms that we
have in place to guarantee an American's rights in criminal
proceedings?
Mr. Cummins. I can't imagine what the British were doing to
people that would be worse than what happened to Bryan Mali-
nowski on March 19th that would have brought about the Fourth
Amendment to the Constitution.
Ms. Hageman. Mr. Graham, do you have any recommendations of
how to address the situation we're describing today to ensure
that this does not happen again? What kind of reforms should
Congress take up to make sure that we can protect Mr.
Malinowski and other people like him?
Mr. Graham. Madam Congresswoman, once again, having limited
exposure to the warrant process and/or the execution, I would
defer to Congress creating whatever laws, regulations, they
deem appropriate to be delegated to the appropriate enforcement
agency.
Ms. Hageman. Mr. Cleckner, what about you? What
recommendations would you have?
Mr. Cleckner. I agree with Mr. Graham. I think Congress'
oversight here is really important. I think what you asked me
earlier about the Administrative overreach is these
Administrative agencies specifically going against what
Congress has put into place like the Gun Control Act or like
the willfulness requirement.
Ms. Hageman. Between the bump stocks and the pistol braces
and those things what we have are agencies who are
intentionally adopting vague rules and regulations to
criminalize lawful and unconstitutional conduct. It needs to
end.
I appreciate you all being here. I am sorry for your loss
as well, Ms. Malinowski. We have to expose these types of
activities so that we can prevent them from happening in the
future.
With that, I yield back.
Chair Jordan. The gentlelady yields back.
I would just let the witnesses know we have just a few more
minutes. Mr. Davidson, I don't know if Mr. Fry will be able to
join us, and then a couple of comments or minutes with Ms.
Plaskett, the Ranking Member, and myself and then we'll be
done. So, if you need a break, obviously, let us know but we
should be done here in the next 1five minutes is sort of the
goal.
The gentleman from Ohio is recognized.
Mr. Davidson. I thank the Chair and thank our witnesses
and, Ms. Malinowski, please accept my sincere apologies and
deepest sympathies.
This is something that was avoidable and I'm encouraged,
frankly, because I hear colleagues that were once highly
concerned about warrant practices and held hearings when they
were in the majority about criminal justice reform may actually
be willing to do it instead of politicizing it.
I felt as a guy who was not part of the Judiciary
Committee--I'm on Financial Services and Foreign Affairs--and
only on this because we have seen abuses of the Fourth
Amendment that creep into your financial privacy.
We have seen weaponized government go after every kind of
nook and cranny they can for what have historically been viewed
as law-abiding citizens. Restraints against general warrants--
so John Adams said, ``general warrants swept up whoever might
have been present in the square on certain days.''
These kinds of things that went on are part of what led to
the revolution. So, it was an abuse of privacy. If you look at
it, part of the concern for warrants is that they don't take
the least risky means possible, which does expose officers to
risk.
It exposes not just people that maybe you do have probable
cause to suspect a crime, but it exposes their family members
and others to unnecessary risk, and maybe there is a way that
we should look at the intent of the Fourth Amendment, that it
would minimize the risk here.
It seems that there was a much less invasive way to solve
the crime that was alleged here, and you would think that
because of the Biden Administration's focus on this crime that
this was the big crime wave that's sweeping the country, that
apparently the only reason we have guns on the street are
because people like Mr. Malinowski that--but for Mr. Malinowski
and people like that the streets would be safe in Washington,
DC.
People wouldn't be getting carjacked and robbed at
gunpoint. Chicago wouldn't see massive waves of murders. It's
pistol braces. It must be the pistol braces because they're
going after the pistol braces.
There is no basis in terms of the crime that the Biden
Administration is going after, and I think that's why the
public is so concerned. You're targeting people in part,
because of political ideology.
President Biden's recent Executive Order concerning
firearms dealers was described by the White House themselves as
getting, quote, ``as close to universal background checks as
possible without additional legislation.''
I do not recall Congress voting on universal background
checks. On the contrary, this is a bureaucrat at an agency
passing pseudo laws--fake laws--and they're using them to
effectively force defendants to spend their treasure defending
against a crime that hasn't even become crime in the normal way
by law.
So, Mr. Cleckner, what steps can be taken to defund and
defeat these fake laws originating at the ATF in particular?
Mr. Cleckner. I think Congress needs to hold them
accountable.
Mr. Davidson. To point that out one of the main ways we do
that is with appropriations. So, it's not just whether they're
funded, but what can they do with the funds and part of that is
timely.
We're going back into appropriations. Having passed on
holding accountable the agency this time, hopefully, we'll find
the resolve to do that this time in the next path.
Mr. Cummins, I just wanted to close out with you because
you're highlighting an important case. You've had a background
where you are familiar with the warrant process and I think not
just here in this case you pointed out, look, it is a practice.
Is it good practice to knock at 6 a.m., and come in and--
you would think that--El Chapo maybe no-knock warrants. There's
a time and a place. How do they weigh the right time and place
for those kinds of tactics versus maybe less intrusive, less
risky tactics?
Mr. Cummins. Well, we have given great deference to law
enforcement to choose their tactics and we are concerned about
law enforcement officers' safety and so that's a good reason to
do that.
I do believe we have over militarized our law enforcement.
I have great concerns about that. I think we do that this way
too often, and we need to take a hard look at it.
In this particular case, I don't think they did it lawfully
at all and there's zero justification. Even that said, law
enforcement does this kind of thing quite a bit.
Mr. Davidson. You point out that there's surveillance for a
while. It wasn't like an exigent circumstance--there wasn't
evidence that was going to be flushed down the toilet or
disposed of.
There was evidence that would be physically present onsite
and there were lots of periods of time where Mr. Malinowski was
in a place where he could have been detained and questioned,
could have been brought to the residence or could have been
caught as he's walking into or about to walk out of a home.
So, there were lots of less invasive means and I just hope
that we can find a way in statute or in practice to be able to
say let's do it that way more often and let's not violate the
civil liberties of our citizens.
With that I yield back.
Chair Jordan. The gentleman yields back.
The Ranking Member is recognized for closing comments or
questions.
Ms. Plaskett. I just want to thank the witnesses for being
here.
Ms. Malinowski, I see the pain that you are still in, and I
pray that there's resolution for you and your family, and I
thank you that I see that you have a support system with you.
Thank you to those who are there with you providing that
support to you in this time.
I have nothing at this time further. I would, however,
request and introduce for the record the Demand of two letters
sent to Point Blank Firearms.
Being on the Demand two letter program for two years in a
row means that a business sold 25 or more firearms than a
business here that were connected to a crime.
Chair Jordan. Without objection.
Ms. Plaskett. Thank you.
Then, I would also remind my colleagues about that
appropriations process, that removing funding from ATF
individuals on this Committee who pass or want to have laws
passed such as the elimination of ATF, and the abolition of ATF
is not the way to support regulating guns in this country--that
we need to do this comprehensively. A step in the right
direction was the bipartisan gun legislation that was passed in
2022.
There's more work to be done, and with that, I yield back.
Chair Jordan. Mr. Cummins, when government changes the
rules without a vote of Congress is that the weaponization of
government?
When you have these agencies unilaterally change the law
without a vote of the Legislative body, would you call that the
weaponization of government?
Mr. Cummins. It seems that way to me.
Chair Jordan. Mr. Cleckner, would you agree?
Mr. Cleckner. I do.
Chair Jordan. Mr. Graham?
Mr. Graham. Chair, that's a department doing what they're
directed to do, sir.
Chair Jordan. OK. Let me say this. So, when the ATF
unilaterally changed the definition of what a pistol brace and
how that worked, and overnight made law-abiding citizens then
felons--you either have to turn the gun in or you're a felon--
is that the weaponization of government, Mr. Cleckner?
Mr. Cleckner. It sure is, especially when we don't know
that every American that had one of those got the message.
Chair Jordan. Exactly. The same thing seems to be
happening--seems to have happened in the case of Mr.
Malinowski.
The ATF decided to change the definition of what an FFL--
what a licensee was from principal livelihood to someone who's
earning a profit, but it's even worse because they didn't have
the definition changed and enacted when this terrible incident
happened with Mr. Malinowski.
That, to me, is the weaponization of government,
unilaterally making changes without it going through the
Legislative Branch of government the way our system is supposed
to work--the checks and balances how they're supposed to work--
and in the case we're talking about so much today they hadn't
even fully made that change.
They didn't even follow their own rule, for goodness sake,
and we have an American who's no longer with us because of
that.
Mr. Cummins, a response?
Mr. Cummins. I agree with everything you said.
Chair Jordan. Let me ask you one other question. Was the
Little Rock police involved in the raid on the Malinowski home?
Mr. Cummins. We know they were present. We don't know
exactly what their role was. There were 10 carloads of agents
at the house.
Chair Jordan. We have seen the video of all the carloads
coming from the Wal-Mart parking lot to the Malinowski
neighborhood. We have seen that video.
Were the Little Rock police officers wearing body cams on
the morning of this raid on the Malinowski home?
Mr. Cummins. According to what we have been told nobody had
body cams on even though Little Rock police are equipped with
body cams.
Chair Jordan. That was my next question. They're supposed
to wear them, the Little Rock--
Mr. Cummins. It's my understanding. I'm not 100 percent
sure about that.
Chair Jordan. Do you believe that the ATF told Little Rock
police officers not to have their body cams on or not to have
them engaged?
Mr. Cummins. When the local PD is supporting a Federal
agency typically they're taking orders from the Federal agency.
So, I would presume--I don't know--that ATF instructed them to
not wear it.
Chair Jordan. That would be a logical presumption. As a guy
who is a former U.S. Attorney the way it works Federal law
enforcement--
Mr. Cummins. That's consistent with my understanding of how
those relationships work.
Chair Jordan. Again, we're back to the question you asked
in your opening statement a couple hours ago. Why?
Why would ATF tell Little Rock, don't follow your own
rules? We're not going to follow our rules. We don't want you
following your rules. We don't want any video footage of what
we're about to do at the Malinowski home, an upstanding citizen
by all accounts--your whole testimony--highest paid official in
Little Rock municipal government.
Why would they do that?
Mr. Cummins. We have no idea.
Chair Jordan. Yes, but we got to find the answer to that
because this is the weaponization of government if I've ever
seen it.
We thank you all for being here today, for your testimony,
and I got to say something official here before we close our
hearing.
That concludes today's hearing. We thank our witnesses for
appearing before the Subcommittee today. Without objection, all
Members will have five legislative days to submit additional
written questions for the witnesses or additional materials for
the record.
Without objection, the hearing is adjourned.
[Whereupon, at 12:20 p.m., the Subcommittee was adjourned.]
All materials submitted for the record by Members of the
Select Subcommittee on the Weaponization of the Federal
Government can be found at: https://docs.house.gov/Committee/
Calendar/ByEvent.aspx?EventID=117338.
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