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PaperclipPerfector  1mo ago (text post)   25932 thread views

Culture War Roundup for the week of March 25, 2024

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53 Year old Brian Malinowski was killed in an ATF raid. He was a director at the Clinton National Airport in Little Rock. (This airport was named for the Clintons but is unconnected to them personally so we can put our tinfoil hats away for now.) We have no body camera footage of the shooting, they claimed he fired at them and they fired back during their 6am raid.

The search warrant, partially redacted, was released to the public. In it we find they raided him due to his frequent activity of buying and selling firearms without the required FFL licence.

Selling your private gun collection without involving the state is something that has been legal in the US forever, but buying and selling as a business is not. The law is written such that Grandma may sell her deceased husbands musket collection without fear of state reprisal, but you cannot buy bulk AR's and distribute them to the local gang for a big profit. What counts as a business? How many guns can you sell from your collection before you cross the threshold? How fast can you turn around and sell a gun after you buy without fear of breaking the law? This law is ambiguous on this, it is what politicians have referred to as "The gun show loophole". The idea being that you can take your personal firearms and sell them at a gunshow booth (or anywhere) without having to do a background check on potential buyers.

Brian Malinowski is a novel case. He bought and sold 150 guns over a two year period, some of them sold fairly quickly after he purchased them. This was high enough to get him on the ATF's watch list - they tailed his vehicle and observed him at his job at the airport. His job seems unconnected to his firearm hobby as the warrant never accuses him of smuggling through the airport. It heavily implies this is what was happening, mentioning the airport frequently throughout the warrant, but they never suggest that he actually did. It does, however, mention his selling his collection through booths at a gun show to undercover ATF agents.

So what of downstream crimes that have occurred from Malinowski selling these firearms "off the books"? Here the ATF's case seems very weak. Out of the 150 guns sold, only 3 have been directly tied to crimes stated in the warrant. The crimes? All three are marijuana possession during routine traffic stops (marijuana still being very illegal and heavily policed in Arkansas). Personally I think this is extremely petty and very favorable to the late Malinowski's case. There is one other mention of an undercover informant in Canada having a photo of a firearm with a serial number that ties back to Malinowski, with no additional details given.

In my opinion, I believe Malinowski was technically legally in the right despite the high volume of sales. There is no indication he was attempting to profit from selling to criminals/gangs etc. Many people collect firearms and enjoy buying and selling them as others would spend hundreds of thousands of dollars on motorcycles or pokemon cards. There is no law in Arkansas against purchasing a handgun and deciding you don't like it for whatever reason and selling it to your neighbor the next day. That said, Malinowski is reported to have been somewhat of an asshole by those who knew him, having previously lost a lawsuit in 2018 in which he sued someone over a mailbox in front of an empty lot after confronting them pretending to be an attorney. Given this and that he was on record stating that his activity was legally protected private collection sales when pressed, and the ATF suggests he continued his activity after he knew they were tailing him, I think it's highly probable he knew what he was doing and was intentionally skirting the boundary of the law in order to provoke a legal confrontation.

This is a good culture war inflection point in the gun control debate. Leftists can point this case as an example that the Gun Show Loophole is in fact, real, and is being exploited by so-called hobbyists selling bulk firearms. Rightist can point to rogue federal agencies abusing ambiguous laws in order to infringe 2A rights by routing around political representation.

*Disclaimer: IANAL etc.

Putting on my tinfoil hat for a second:

In placing my expectations for the upcoming presidential election, I stated to people that I expect Biden to pull it out. Primarily because I expect MAGA types to do a few unacceptably bad things between now and November. Somebody in a red hat is gonna shoot a cop and lose the election for Trump among normies. A lot of extreme MAGA fringe has gone very, wildly, anti-government since 2020. One of those guys is going to do something really bad between now and November.

I wouldn't be shocked if the upper levels of the admin were aware of this too. And they might choose to take enforcement actions that will make a MAGA shootout more likely. Things like aggressively pursuing marginal "trading in guns without a license" crimes committed by 50yo white men in Arkansas.

Expect more of this.

I do expect more of this. But that's because of my low opinion of said extreme MAGA fringe, not because of bureaucratic honeypots. You could replace Biden with a rock that read "VETO ALL INCOMING BILLS", and I doubt his popularity among that fringe would shift. Not enough for a statistically significant change in the odds of, say, shooting up a post office.

So how do we distinguish the two? What's a bet that only comes true if the ATF (or DoJ, or Biden's cabinet, or Hillary Clinton's shadow government) is actually trying to generate martyrs?

You could replace Biden with a rock that read "VETO ALL INCOMING BILLS", and I doubt his popularity among that fringe would shift. Not enough for a statistically significant change in the odds of, say, shooting up a post office.

I'm not talking about changing regulations, I'm talking about choosing to launch a no-knock raid on a guy who probably could have been picked up at work with a minimum of fuss. The Feds probably already have assets in a regional airport that could have arrested him! The feds aren't going to increase the odds of shooting up a post office, they're going to increase the odds of another Waco, by aggressively creating standoffs between such people and police.

This is the perennial complaint against many police raids on homes. "You could have just picked him up while he was driving to work or the store." David Koresh liked to jog around town. They could have grabbed him and stuffed him into a van whenever they wanted. But the ATF wanted a showy raid, and they sure as hell got one.

Alright, I muddled the issue re: post offices.

My point was that if Biden took absolutely no actions, there would still be a risk of a Waco. The anti-government fringe would still be roughly as powerful, and I expect anti-anti-government agencies would be just as likely to use a heavy hand. They’ve been doing so for decades, even when it has no route to influencing an election.

and I expect anti-anti-government agencies would be just as likely to use a heavy hand

I don’t think that’s actually true, I think they’re desperately trying to prove they’re doing something about the real terror threat- white guys with right wing views.

What makes you say that?

Here we have an example of the ATF killing someone for pushing the envelope on existing gun laws. He wasn't politicizing it, he wasn't wanted for hate crimes or funding a revolution or, I dunno, being in D.C. a couple Januaries back. This isn't the FBI. No one said anything about terror threats. Other commenters have argued that this fits cleanly into the same strategic ambiguity that the ATF has been abusing for decades.

So why is it evidence of a desperate push?

I mean to be totally fair, the Biden admin shifting law enforcement attention towards flyover whites with right wing views does seem to be a thing that’s factually happening. Granted it seems like that’s happening more out of the mistaken belief that this group is about to launch a jihad, but taking enforcement efforts against people in maga hats that they normally wouldn’t take is probably actually happening and that does make thing like this more likely.

So uh, I hate to ask this, but even accepting the premise entirely the ATF being totally wrong and everything, did he actually open fire on agents serving a warrant?

Are we gonna get body-cam footage and be able to come to an independent judgment on the conduct of the government in the course of the raid?

Are we gonna get body-cam footage and be able to come to an independent judgment on the conduct of the government in the course of the raid?

No.

The Department of Justice confirmed to me and @JohnBoozman last night that the ATF agents involved in the execution of a search warrant of the home of Bryan Malinowski weren’t wearing body cameras. We will continue to press the Department to explain how this violation of its own policy could’ve happened and to disclose the full circumstances of this tragedy. Mr. Malinowski’s family and the public have a right to a full accounting of the facts.

That is most unfortunate.

I don't know about this particular case, but sometimes law enforcement "no knock" breaks into someone's home and from the homeowner's point of view are merely criminal home intruders.

Indeed. They should be disfavored.

Are we gonna get body-cam footage and be able to come to an independent judgment on the conduct of the government in the course of the raid?

I doubt it.

I wish that we held public servants (particularly ones authorized to use deadly force) to a "duty to proactively gather proof of innocence". That way, if an officer couldn't decisively clear his own name then he would be at risk of being fired, even if the evidence that exists is too weak for criminal charges.

Instead, they get cover for bad decisions, like in this case (paraphrased and dramatized):

  • Officer: After checking the details, I proceeded with the raid.
  • Judge: You checked the details and confirmed that they were correct right? Actually never mind, you get qualified immunity regardless. You checked, after all.

I think we're talking at cross-terms here. There is a difference between

  • The decision to raid based on incomplete investigating or misleading testimony to the approving magistrate
  • The conduct of the raid itself and the propriety of the use of deadly force

Regardless of the first prong, every arrest has to be carried out with the animating purpose of bringing the suspect to face justice and with use of deadly force as an absolute last resort. Of course, most of the time deadly force is justified -- the meme about police routinely shooting the unarmed is widely overblown. So in this case, what kind of shoot was it?

I don't think that the officer's behaviour in the weeks leading up to the raids was objectionable in either case (or at least I'm not objecting to it). It's just what happened in the time between showing up at the street and knocking on/down the door that's at issue.

So in this case, what kind of shoot was it?

We don't know and the government feels no need to inform us. If there was exculpatory bodycam footage I'm guessing we would see it, but they don't have enough foresight to gather that evidence.

The thread that links ___'s case to mine is that the officers feel no need to be accountable for their actions. Malinowski's shooters didn't feel the need to defend their (upcoming) actions, and Parks' invaders weren't required to confirm that the address was correct. Ranking the credibility of different decision making styles:

  1. Mathematically proven to logical certainty.
  2. Scientifically or legally proven beyond a reasonable doubt.
  3. Reached through proper checks and balances auditable controls in a verifiable way.
  4. A reasonable decision made by a competent person following their training/expertise.
  5. A decision considering the relevant factors.
  6. A decision that isn't based off of illegal or malicious factors (e.g. racism, price fixing).
  7. A decision.

I'm pushing for the police to meet standard #3 whenever practical. Regardless of whether Malinowski was a shot well or not, the decision is not verifiable. The warrant is largely verifiable, and we can debate as to whether it's good or not, but apparently they don't care as much about proving that the shot was good. Maybe the officer could meet standard #4, maybe #7. Who knows.

Lt. Mike Lewis was held to standard #6 in his wrong-house raid.

We don't know and the government feels no need to inform us. If there was exculpatory bodycam footage I'm guessing we would see it, but they don't have enough foresight to gather that evidence.

You would think that police would be on top of releasing exculpatory footage ASAP, but only a few agencies have actually gotten that kind of turnaround time.

But perhaps you're right. At the same time, maybe the footage will come out showing Malinowski clearly raising a gun and firing at officers before they fired back.

I'm pushing for the police to meet standard #3 whenever practical.

I have no particular objection to this as the standard.

But again, you're now talking about conduct prior to the raid and not the conduct during the raid. Or else maybe I'm confused because it makes no sense to have a check and balance during an arrest.

Regardless of whether Malinowski was a shot well or not, the decision is not verifiable.

Huh? The decision to shoot taken at the time was either reasonable (the officer had an objective and well-founded need for lethal self defense or defense of other innocent life) or not.

Or else maybe I'm confused because it makes no sense to have a check and balance during an arrest.

Sorry, that's my mistake. TIL that "checks and balances" is a very specific term of art that only applies to the government. I meant something like "Establish critical control point monitoring requirements" or "quality assurance via preventive actions".

We don't accept someone's word that food isn't contaminated or that a part is manufactured correctly. We have implemented recordkeeping and inspection requirements ("checks" on the procedure) that provide sufficient safety without compromising productivity ("balances" between those goals...oops).

You can't go "Trust me, bro. This food is good." because we value the safety that those procedures bring. Meanwhile cops are like "Trust me, bro. It was a good raid." and we just collectively shrug our shoulders and move on. Maybe he's right, maybe he's wrong, but we don't care enough about (future) raids to make it easy to answer.

Huh? The decision to shoot taken at the time was either reasonable (the officer had an objective and well-founded need for lethal self defense or defense of other innocent life) or not.

The uncertainty is the problem. I don't just want it to be a good decision based on the facts, I want it to clearly be a good decision based on the available evidence (or alternatively clearly be a bad decision that's guaranteed to lead to punishment). I can't tell if it was a good decision or not, and nobody else can either.

Well, I guess the rise of body cams since BLM has done more for this than anything else in living memory.

The uncertainty is the problem. I don't just want it to be a good decision based on the facts, I want it to clearly be a good decision based on the available evidence (or alternatively clearly be a bad decision that's guaranteed to lead to punishment). I can't tell if it was a good decision or not, and nobody else can either.

Seems like a fine goal.

I guess he will get a gold coffin, nationwide protests and calls to defund the ATF.

I would be all for defunding the ATF, and I mean that in the literal sense (not the "oh we just meant reforms" motte that the defund-the-police movement fell back to). So far as I'm aware, the ATF doesn't accomplish a single positive thing for the people of this country.

I know a guy who worked military research back in the early 2000s. He said their ATF contact was really handy when they needed automatic weapons for a test. The local evidence locker was apparently well stocked.

This is the kind of thing that's just begging for a steelman! Even though I said below that the only thing I want an ATF for is to distribute alcohol, tobacco, and firearms, I have to admit that their fire research labs look pretty cool. And besides, who knows more about lighting structures on fire than the ATF?

Unemployed agents could always move into veterinary euthanasia or find work in PETA.

I think it's highly probable he knew what he was doing and was intentionally skirting the boundary of the law in order to provoke a legal confrontation.

You mean, he was deliberately following the law by the letter, making sure to never break it, and the feds murdered him in a pre-dawn raid anyway. Either he broke the law or he didn't. Skirting the law isn't breaking the law, otherwise you'd have said he broke it.

The ATF deserves to be disbanded, and most of their employees tried for crimes against the constitution and the people who it protects.

What counts as a business? How many guns can you sell from your collection before you cross the threshold? How fast can you turn around and sell a gun after you buy without fear of breaking the law? This law is ambiguous on this

As OP writes it, the law is ambiguous. Hence "skirting the law" does not mean "carefully staying inside the bright red lines", it means "nobody knows if you're breaking the law until you're in court".

If you want to argue he clearly wasn't breaking the law then I'd be legitimately happy to read it, but right now I'm leaning towards "law makers trying to make it legal for you to sell your grandpa's private collection when he dies probably weren't trying to make it legal to buy and sell 150 guns, with no extenuating circumstances, in two years".

"law makers trying to make it legal for you to sell your grandpa's private collection when he dies probably weren't trying to make it legal to buy and sell 150 guns, with no extenuating circumstances, in two years".

And yet, we are going to have more cases like this in time, I imagine, if they're not already happening, purely because the former will be indistinguishable from the latter, given the habits of gun owners (to speak more plainly: older people probably buy a lot of guns, thus, it is quite conceivable that a family that needs to ditch paw-paw's little arsenal might run afoul of the ATF through no genuine fault of their own).

That is an utter abomination of a username. I'm impressed.

Man, as someone who fucking loves guns, it sucks that the one country in the world where a man is free to shoot tannerite in full auto (with tax stamps, and officer, I promise that this is an oil filter, please walk very softly around the dog) does such a poor job of protecting it despite a clear constitutional right.

The ATF is a meme, goons who have far more power to ignore common sense and wider jurisdiction than they deserve. Alcohol, Tobacco and Firearms, one of these isn't like the others. I don't know why Republicans didn't do their level best to de-fang it, especially when they had four years to do so, but I suppose that speaks to the general incompetence of the Trump Admin, or to the perfidy of the Deep State, depending on which of our regulars you ask today.

Was that simply not a priority? I would assume it would receive overwhelming support from the Republican voter base.

the one country in the world where a man is free to shoot tannerite in full auto

While the USA is unusual, it is not unique. Check out Yemen where you can buy non-antiques. Before moving there, consider the tradeoff in stability and safety!

The Yemeni sheikh's quote about everyone having guns ("no matter if you're rich or poor, you must have guns") reminds me of my favorite youtube edit of all time: "Fimif sas dad." "No matter what our beliefs are about guns, we need guns."

We're calling them "YouTube edits" now? My aging Millennial heart hangs heavy on this day.

Hmm.. Given that I'm single and circumcised, and I can get four times the wives at half the price, I'm tempted.

I've heard the demand for doctors is really high, can't say why.

Alcohol, Tobacco and Firearms, one of these isn't like the others.

To be fair, it's now the Bureau of Alcohol, Tobacco, Firearms and Explosives.

In any case, my position remains that the only reason to have a Bureau of Bureau of Alcohol, Tobacco, and Firearms is to distribute those goods to Americans in need and to ensure the quality of said goods.

I prefer e-cigarettes, but otherwise can rally behind your flag (I bet $3.50 it has a snake on it, and that's cool). Then again, I don't know if nicotine is easy to synthesize without the plant, so maybe you can ignore my concerns for now.

Isn't AI wonderful?

/images/17114046789978466.webp

Which generator (DALLE, MidJourney etc.)

And would you be willing to share the prompt? Fucking rad as hell, dawg.

DALL-E 3 lol, but use Bing Image Creator, in some ways it's still less anal about prompts than ChatGPT's version of DALL-E is, for all its been censored to hell too.

"Don't tread on me" flag with a snake that is smoking a cigar, while holding a bottle of vodka with one hand and shooting a gun with the other hand

(I know it's called the Gadsden flag, I just explicitly called out the snake because I wanted it to be doing, well, that)

My God. Campaign logo achieved.

Praetor Rykard, is that you?

I'm pretty sure Elden Ring would be a much harder game if the bosses came with AKs of dubious make. Or easier, if you could pick them up.

Pest Threads is pretty much that.

I bet $3.50 it has a snake on it, and that's cool

It was about that time that I noticed that the "Indian doctor" was about 8 stories tall and a crustacean from the protozoic era!

It's rude to talk about caste like that. I can't help it.

One thing I always like to point out: almanac.

In my opinion, I believe Malinowski was technically legally in the right despite the high volume of sales. There is no indication he was attempting to profit from selling to criminals/gangs etc. Many people collect firearms and enjoy buying and selling them as others would spend hundreds of thousands of dollars on motorcycles or pokemon cards. There is no law in Arkansas against purchasing a handgun and deciding you don't like it for whatever reason and selling it to your neighbor the next day.

Legally in the right is kinda unrelated to those questions; the federal law isn't about selling to Bad People, but selling as a business or buying on 'behalf' of another person. See Abramski v. United States for a case where buying one gun for resale to another person (his uncle) who could legally buy or own the firearm had he bought the gun himself, and received five years of probation (technically, two such sentences running concurrently).

(The affidavit claims one of the guns was found in possession of a Norteno gang member, but search affidavits claim bullshit regularly, and it's not clear how many steps happened between Malinowski's sale and that point, since the Nortenos are mostly a California thing.)

Under current law, there's almost no chance that he'd have been able to avoid a lengthy federal sentence. There's not a statute written down saying you can't buy and resell in a day or a week as a private individual, but the law is whatever the ATF wants it to be, until and unless a court slaps them down. The line between private sales from a personal collection and acting as a business is vague and basically defined only in whatever sense the ATF wants it to mean, but there's been far more marginal cases convicted.

He might have been trying to start a legal confrontation, but I'm... somewhat skeptical for aviation reasons -- very few people who deal with the FAA regularly would start shit by going straight to 11, and those who do would have had a lawyer on retainer, heavily tied into paperwork somewhere, and ready to give a statement. As an alternative explanation, there was (and remains to a smaller extent) a lot of non-coastal people who use firearms as a store of value, and quite a lot of them aren't familiar with the law or the extent that it's been tightened recently.

Morally... more complicated. Whatever the original status of the GCA1968, the ATF and federal government have since joined together to make the FFL system as unavailable as possible to small businesses or hobbyist resellers, starting with the Clinton-era crackdown on kitchen-table FFLs (with a few exceptions). Abramski would have struggled to operate as an FFL had he wanted to, and the harassment aimed at small FFLs makes the moral arguments rough.

I'd be in favor of changing the law, the question, though, is whether the pro gun people would actually go for it. Say you limited private sales to 3 per year or 5 in any two-year period and required that the seller fill out a Firearm Bill of Sale and keep that and a copy of the buyer's photo ID on file for 5 years so that in the event the weapon was used in a crime they'd be able to demonstrate that it was sold? Or maybe do what Pennsylvania does and require FFL transfers for handguns (but not long guns). Or also require them for long guns with removable magazines. I think part of the reason why the law remains vague is that gun control is such a toxic issue right now that any change of the law is difficult to accomplish. For the gun rights people any clarification short of a total repeal of the FFL requirement is going to be seen as an unreasonable imposition, and for the gun control people anything short of eliminating private sales entirely is going to be seen as a useless half-measure. So there's no political will to do this.

That being said, I don't think the law is as ambiguous as you're making it out to be. In Abramski, there was no question that the defendant purchased the gun for immediate resale, and the evidence in the case didn't even support a defense that Abramski purchased the gun for himself and later decided to sell it. I also don't think Abramski really applies here in any context because the defendant transferred the gun to Alvarez through an FFL; at no point was he invoking the private sale exception. While I don't like the ambiguity myself, I don't know that the Malinowski case is really the best argument for the idea that the ambiguity needs correcting. I don't know the exact evidence, but I'd find it hard to believe that Mr. Malinowski wasn't acquiring these guns specifically for the purpose of reselling them. I mean, it's possible that he happened to inherit a bunch of guns all at once and wanted to get rid of them, or that he was constantly buying guns to try them out and getting rid of ones he didn't like, but absent specific evidence of that, it's safe to assume that someone who sells 150 guns over the course of a couple years is doing so for pecuniary gain.

or that he was constantly buying guns to try them out and getting rid of ones he didn't like

People who do this sell them back to the dealer. He was obviously doing it for gain.

That being said, I don't think the law is as ambiguous as you're making it out to be.

I don't think his particular case is ambiguous: I agree that Malinowski was likely violating the law ("almost no chance that he'd have been able to avoid a lengthy federal sentence"). My moral problem is more a question of what compliance would look like.

(Abramski is more complicated: it's unquestioned that he was reselling the gun, but the law about buying and selling doesn't ban resale, only "engaging in the business", which he wasn't doing. Hence why he got hit with paperwork violations that aren't even parts of paperwork listed in the statute, but rather ATF regs.)

The exact requirements for a private FFL is a mess, but there's a lot of ways it can be ludicrously impractical. Becoming an FFL means the ATF can inspect your entire listed address with little or no notice at least once a year. While less often an issue in Little Rock than other jurisdictions, FFLs must comply with all local business regs just to receive a license; this can require massive investments or even where it doesn't just turn into a catch-22 or punitive FFL-specific fees. Moving is annoying and in recent years leaves you pretty much at the whims of the ATF's schedule. Some IOTs or jurisdictions can require enough additional security as to make casual sellers cost-negative. Gotta keep (and show you can keep) form 4473s for twenty years, every i dotted and t crossed. Even the sort of zoning stuff no one actually enforces has to be met and understood and complied with. Apartment or rental FFLs have to show that they'll be in compliance with all the boilerplate contract crap meant to keep people from running a leather tannery in basement.

Most critically, the ATF requires FFLs be engaged not just in resale, but in business. If you can't present a decent business plan during the interview, the ATF won't issue an FFL; if you're not making a decent number of sales, the ATF can pull an FFL. There's limited alternative sales (mostly consulting), but if you go with them you've got other problems. Officially, you only have to list two hours a week as your 'open hours' for inspection and business, but outside of FFL 03s (C&Rs), you're likely to get your IOT to tell you to try again until you've got at least one 'open' day (usually 5+ hours). That's likely wildly impractical for an airport manager, who must also be available at no notice to handle everything from a major air disaster to an fuel spill to a burst water pipe to a busted runway light.

((This isn't helped by overt abuse of FFLs by the ATF: there are some limited statutory protections about having too many inspections in too short a time period, searching material unrelated to the business, or taking pictures of FFL records during inspections absent evidence of wrongdoing, but these solely exist on paper. There's literally no recourse if the ATF flips the law the bird.))

That's the point; the whole set of regulations and harassment exists to discourage small or marginal FFLs, or people becoming an FFL for personal use (which is itself a felony!). That's the state of regulations right now, and there's no wiggle room from a view of the courts.

But from a moral one... I don't advocate noncompliance with such unreasonable laws. I'm hard-pressed to see it as morally wrong, though, rather than just a horribly bad idea.

I think part of the reason why the law remains vague is that gun control is such a toxic issue right now that any change of the law is difficult to accomplish. For the gun rights people any clarification short of a total repeal of the FFL requirement is going to be seen as an unreasonable imposition, and for the gun control people anything short of eliminating private sales entirely is going to be seen as a useless half-measure. So there's no political will to do this.

For gun rights people, there's a lot for whom the FFL system is, in many ways, the room temperature -- at most, you get some problems at extremes, but even among gunnies, there's just not the interest for its core. The problem's more that any of the even remotely plausible compromises look a lot like just one more bite at the cake.

I'm not sure if it's intentional, but I'd point that your particular proposal is all take and no give. Every private firearm sale must now have a paperwork and ID requirement, or involve an FFL, and a fairly low limit to private sales is now in place, and... what, we're supposed to be happy that we're 'absolutely sure' that four guns in two years wouldn't be against the law, at least until the feds change it again?

Add in that there's a wide gap between such minimal sales and the scope required for it to make business sense to jump through all the hoops for an FFL. For a fermi estimate, if we assume 300 USD profit per gun and 150 guns, Malinowski would have made less than 15k USD/year.

I think I misunderstood you then; your concern isn't about ambiguity, because there is no ambiguity. It's illegal to buy guns with the purpose of transferring them to someone else without an FFL. The private sale exception only applies to guns that were legitimately bought for personal use inherited, gifted, etc. And you can't get an FFL unless you're actually running a full-time business that involves selling guns. There are a number of requirements that seem onerous but that's the point; if you're running a gun store the stuff you described isn't onerous at all. The fact that a part-timer can't get an FFL isn't an ambiguity but a specific policy prescription. The government doesn't want amateurs and hobbyists dabbling in highly regulated industries. Given that something like 70% of guns used in crimes are from straw purchases and another 10% or so are from direct sales, there's good reason to ensure that people in the business of selling guns are actually in the business of selling guns.

Just some useful legal context to add to this:

In the 90's the Clinton administration cracked down on so-called "kitchen table" FFLs. A lot of gun enthusiasts became FFLs in the 80's because it allowed them to bypass a lot of the onerous gun control regulations that had been passed in previous decades, at the small small cost of a fee, record keeping requirements, and allowing the ATF to search your home without a warrant or prior notice. But hey at least you can own post-1986 machine guns!

The Clinton administration changed this by requiring that FFLs be "in the business" of manufacturing and/or selling firearms, eliminating the ability of these smaller gun enthusiasts to become FFLs. Even though my state can set clear limits for automobile sales to determine who needs a car dealer license, the ATF seemes unable to set clear limits/amounts for what determines whether or not someone is "in the business" of selling firearms.

They've intentionally left it vague for decades because it creates fear amongst gunowners who never know if the ATF might arbitrarily and capriciously decide to go after them for even a small number of sales. And in cases like OP's story where they seem to be intentionally flirting with that line it gives all the more power and justification to the ATF for overreach.

Source on the Clinton admin FFL changes:

https://www.nraila.org/articles/20220321/democratic-administrations-flip-flop-flip-on-gun-dealer-licensing

Also for your consideration, my state's rules on who needs a car dealership license vs. the ATF's guidance on what counts as being "in the business" of selling firearms:

https://mved.utah.gov/licenses/faq

https://www.regulations.gov/document/ATF-2023-0002-0001

Out of the 150 guns sold, only 3 have been directly tied to crimes stated in the warrant. The crimes? All three are marijuana possession during routine traffic stops (marijuana still being very illegal and heavily policed in Arkansas). Personally I think this is extremely petty and very favorable to the late Malinowski's case.

Yeah, having this volume of firearms sales and none involved in any sort of offensive crime strongly suggests to me that he was doing some degree of due diligence with regard to buyers.

Nonetheless, I find that I am not all that sympathetic to someone that was pretty obviously in the firearms sales business and elected to not get an FFL for whatever reason. I remain vigorously opposed to eliminating the "loophole" because I think it's nothing but an end-run to require background checks and then not allow private sellers to do them, but the flip side of that is I want my side of this argument to engage in the basic good-faith effort of doing the paperwork if they want to be in the business.

On the gripping hand, I really do hate the ATF with all my heart. What do you think, could they have picked up ol' Brian at the airport rather than creating the conditions for an early morning shootout? In the event that it was absolutely necessary to serve the warrant at his home without letting him know, do you think it might have made sense to flip the bodycams on? I have zero inclination to extend even the slightest benefit of the doubt to these enemies of the American Constitution.

Yeah, having this volume of firearms sales and none involved in any sort of offensive crime strongly suggests to me that he was doing some degree of due diligence with regard to buyers.

Or it just means he was selling within his bubble of libertarian firearms enthusiasts, who very rarely commit crimes involving firearms(other than possessing them) and have virtually no overlap with the people who do so regularly.

I do agree with you that he should do the paperwork and get set up as an FFL if he’s going to be buying and selling guns on the regular. ‘Gun dealers need to be licensed’ is a reasonable law and you should follow it. At the same time, a no-knock raid with little justification is a distinctly suboptimal way of enforcing it.

As others have pointed out in this thread though, it likely would have been impossible for him to get and maintain an FFL without also getting heavily harassed.

If you are selling somewhere between 5-200 guns a year you are in legal grey zone. Too small for FFL. Too many sales for private sale loophole. The exact edges are unclear.

On the gripping hand, I really do hate the ATF with all my heart. What do you think, could they have picked up ol' Brian at the airport rather than creating the conditions for an early morning shootout?

There needs to be much stricter control of both federal and local/state law enforcement executing these ridiculous and unnecessary midnight raids just to frighten suspects and their families. It obviously leads to more violence since people are going to be delirious seconds after waking up. If an alternative is reasonable a judge should be able to sanction the relevant law enforcement agency.

I think a no-knock warrant should be classified as potentially lethal force. In hostage situations, they might be the right response, but most suspects will not react to a police raid by taking their loved ones hostage. Destruction of evidence is another reason, but I think blocking the sewage pipe from the property being raided would probably suffice to preserve drugs being flushed down the toilet. Not a great reason to recklessly endanger lives. Ring the fucking door bell, present your warrant and tell everyone to come out with their hands up.

Of course, there are some very stupid criminals who would opt for taking cover and starting a shootout instead. If they are also poor and urban and thus live on a property with little strategic depth (or stupid enough not to have extensive home surveillance), then no-knock warrants might be less dangerous to police than regular warrants.

Still, catching them outside their house and arresting them with guns drawn should be pretty effective in terms of avoiding police causalities.

A much-discussed case in Germany in 2010 dealt with a botched no-knock raid. The suspect rocker had reason to believe that a rival gang was going to murder him and shot through a closed door, killing a SWAT officer. After the police identified themselves, he surrendered. In the end, he was found not guilty because his error was not unreasonable in his situation. (Of course, in the US, chances are he would have been shot on site instead of getting an opportunity to surrender.)

I think a no-knock warrant should be classified as potentially lethal force.

What does this actually mean? What specific legal or ethical implications do you think this classification would have? The president declares "No-knock warrants are now classified as potentially lethal force," what changes?

The president declares "No-knock warrants are now classified as potentially lethal force," what changes?

Federal courts have decreed that police violence should be justified by the circumstances, primarily the risk to officers and others, so they would presumably need to be able to argue some proven risk.

Which in this case seems to be absent.

Not a lawyer, but by common sense, you don't execute them without evidence the target is a direct threat to other people.

Presumably, it would have a chilling effect on no-knock raids as police chiefs and federal authorities get more antsy about using something that is only a few steps removed from the same lethal actions that lead to de facto race riots in 21st-Century America.

Is there some sort of tactical school of thought on the efficacy or even purpose of early morning raids?

My suspicion has always been that the cops use them to literally catch crooks napping, but as @2rafa points out, it seems like the potential for "WTF IS GOING ON" violence really goes up.

I assume that surrounding the domicile would probably result in too many barricade events?

Is there some sort of tactical school of thought on the efficacy or even purpose of early morning raids?

It's pretty simple: just-awoken or drowsy people are less effective criminals and combatants. Just as an example, I personally have a mental safeguard that I have deliberately curated that makes me double-check any dangerous actions I might make the moment I wake up (like grabbing my nightstand gun), because I have more than once woken up still half-dreaming and hallucinated things that weren't there. If the someone executed a no-knock raid on my house, that just-woke-up hesitation could literally be a matter of life or death.

At least in the case of Waco it seems like the ATF and FBI wanted to generate publicity. Koresh made regular trips into town and they could have easily arrested him then, thry chose not to.

This search was also during Waco (aka funding) season.

On the gripping hand, I really do hate the ATF with all my heart. What do you think, could they have picked up ol' Brian at the airport rather than creating the conditions for an early morning shootout? In the event that it was absolutely necessary to serve the warrant at his home without letting him know, do you think it might have made sense to flip the bodycams on? I have zero inclination to extend even the slightest benefit of the doubt to these enemies of the American Constitution.

If you want to convince others to follow regulations that they think are stupid, enforcement that is swift, sure, and brutal is an effective way to do it. Nobody wants to end up like Randy Weaver so they're really damn careful to make sure their shotgun barrels are long enough. And nobody's going to want to end up like Malinowski so they'll be avoiding all but the most occasional private sales of firearms. That the nobodies in question are unlikely to believe the ATF story about Malinowski shooting first (I certainly don't; I suspect they executed the warrant by leading with a flash-bang, or something similar) is an advantage; it keeps them from thinking "well if I just co-operate with arrest I can fight these people in court".

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