By Gary O’Brien
As class III collectors and enthusiasts, we are all too familiar with the injustice of the CLEO sign-off requirement on ATF Forms 1, 4 & 5. Transfer applicants must first obtain a sign-off by a local Chief Law Enforcement Officer, attesting that there is no information indicating the transferee would use the firearm or device for other than lawful purposes and that receipt or possession would not place the transferee in violation of state or local law. While this initially appears to be nothing more than a duplicate background check, (ATF does one anyway), it actually allows a local official to arbitrarily interfere, even when there is no disqualifying information. We must obtain the sign-off first, yet no CLEO is required to sign. — A genuine catch-22.
Some applicants got sign-offs for years until a new CLEO took office, some get sign-offs only if their dealer contributes to a certain re-election campaign, some get sign-offs only if they waive their Fourth Amendment rights and submit to a “safety inspection” (illegal search) of their home and others don’t get any sign-offs if they live in the wrong county, regardless of state legality and a clean record.
In an effort to correct this gross injustice, The 1934 Group filed a lawsuit last year. Attorneys James H. Jeffries and Stephen P. Halbrook filed a complaint in the United States District Court for the District of Columbia on behalf of two law enforcement officers and seven private individuals. The complaint essentially states that the CLEO certification requirement is unlawful because: 1) ATF Forms 1, 4 & 5, are in fact Federal tax documents and CLEO certification violates taxpayer privacy protection; 2) the states are compelled to administer a Federal regulatory program, without funding and contrary to law (this is similar to the Tenth Amendment issue in Brady which was struck down by Printz vs. United States in 1997); 3) it interferes with the duty of the Secretary of the Treasury to collect Federal taxes; and 4) delegation of Federal authority to local CLEOs is arbitrary, capricious and an abuse of discretion which is contrary to law.
Attorneys for the Department of Justice filed a motion to dismiss our case on the grounds that we the plaintiffs have no standing (legitimate injury). In December, oral arguments were heard in the District of Columbia with Judge James Robertson presiding. Judge Robertson appeared to be genuinely interested in understanding the merits of our complaint and gave considerable time to Mr. Halbrook who related clear examples of the unfair and abusive nature of this requirement. In particular, Mr. Halbrook emphasized the political quandary where CLEOs and alternate CLEOs including sheriffs, commonwealth attorneys, prosecutors, state police chiefs, judges, etc., all refuse to sign when any one of them within the state refuses to sign.
In spite of the facts, but as expected, on February 5, 2001 Judge Robertson ruled in favor of the Treasury Department, and dismissed our case. (See our case as filed and the motion as granted at: www.1934.org
However, this is not the end of the story. While in his written opinion, Judge Robertson alleges that the allegations do not entitle us to relief, he does in fact state that our allegations “are taken as true”, and further, that “plaintiffs do have standing to challenge the regulations”, specifically in regard to the Tenth Amendment issue in count 2, (compelling of states to administer a Federal regulatory program).
On April 3, 2001 the 1934 Group filed an appeal to present our case before a three judge panel. We are fortunate in that we have a very strong case and two of the brightest and most successful firearms rights attorneys available. We are even more fortunate, in that our attorneys are patriotic and principled enough to have agreed to fight on behalf of our entire class III community, for only a fraction of what trial attorneys normally cost.
The 1934 Group is in this fight to win. Our future efforts to correct this abuse of power will ultimately succeed or fail, not by lack of enthusiasm from the plaintiffs or the attorneys, but solely from the support of our class III community itself. To put it simply, it’s up to all of us.
We must pursue and win this case because it is the only right thing to do. We absolutely can win this case if we get the support. Please spread the word.
Donations are needed and can be made to:
Note new address!
7341 North Parkcrest Ave.
Boise, ID, 83703
|This article first appeared in Small Arms Review V4N10 (July 2001)|