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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.
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?
No.
That is most unfortunate.
And the denouement. There is a video of at least part of the knock-and-announce. Can we see it? Not yet, at least.
((Of particular concern is that Little Rock uses sometimes uses MVR to distinguish its car-based cameras. If the prosecutor's summary is doing so as well, it's not clear what, if anything, that camera would actually have seen.))
Thanks for the followup a lot later.
If this is true, then the deceased fired at ATF agents first, it would totally contradict the "they went to execute him" hyperbole seen earlier in thread.
That said, without the video, who knows if it actually occurred that way. And if it was a case of mistaken identity (e.g. he thought he was being robbed) then the intent of the agents wouldn't mean much at all.
Maybe I'm missing it, but I don't think anyone in this thread said "they went to execute him": the closest I can find is The_Nybbler's "(I certainly don't; I suspect they executed the warrant by leading with a flash-bang, or something similar)".
If the deceased fired at the ATF agents first, it's (probably) not murder to shoot back. The exact legal standard for a normal person is complicated, and there's not really a difference in the law relevant for ATF agents, but the argument that state agents did nothing illegal to invite legal self-defense is at least plausible enough given how broad a search warrant's powers go. ((Although from a real legal realist perspective, even clear murder by federal agents isn't prosecutable, because it and the feds will smother the career of state prosecutors who try it.))
And I think it's a bigger problem that, after decades of this (Ken Ballew was 1971!) and after four years where it has supposedly been agency practice to wear body cameras, we're still finding out that the closest we can get to ground truth on that "if" is the word of an elected prosecuting attorney.
That said, I agree with FCFromSSC that, even if everything occurred as the government claims, it still reflects extremely poorly on the judgement of the people executing the warrant.
As a matter of both federal law and Fourth Amendment jurisprudence, agents of the state executing a warrant still have procedures that they must obey (excluding the 'legal realist' view). There is a duty to give a reasonable time to comply with conventional warrants, breaking in only where refused or to liberate someone assisting him with a warrant. While SCOTUS has condoned knock-and-announce delays as short as 15 seconds, they did so recognize them as "a close call", and one dependent on the facts of the situation. The time and alleged contraband, as well as the size of the house, make the 30 seconds here implausible as reasonable times to comply.
As a matter of policy, people seeking or issuing warrants are supposed to consider not just whatever is most convenient to them or what optimizes the chance of finding contraband, but also to consider the safety of the community and even the alleged criminal. That's not a rock-hard constraint, and society has largely tolerated (imo, wrongly) police abuses of 'perp walks' and high-pressure searches in ways that would have endangered the community even were the alleged criminal guilty as hell. But it's especially galling in a case like this: agents were looking for a wide array of documents, laptops, and guns, almost none of which were not especially plausible to flush down toilets or sinks (there's multiple full rifles on the warrant, and even the subcompact pistols won't fit in normal plumbing), nor particularly important to the state's case even Malinowski opened his mouth and chewed them down. This is standard police shit.
Nor may or should warrants be executed without caution for the safety of everyone involved; while police are not required to find the least dangerous means of serving a warrant, they can not (even under legal realism, though tbf that was a much worse case) go into a search throwing any caution to the winds, without good justification for the dangerous actions. 30 seconds is seldom sufficient time for someone to dress and comply with even a lawful search, and there are known groups who have impersonated police to engage in kidnapping or burglary. There is nothing in the prosecuting attorney's claim alleging exigency, such as evidence of flight or destruction of evidence. And here it's especially galling because the available alternatives abound: the man regularly went to a fixed place of business at regular hours (where he could be cornered without access to 'an arsenal' and probably not even to guns), he was accused of -- despite their high profile -- paperwork crimes, the affidavit gives no clear or even cloudy evidence of threat to officers. Even the defense for covering up the door camera -- to obscure that the police's number and locations -- runs hard into this matter: it provides very little protection against someone inside the house spray-and-praying the police, while making it hard for anyone law-abiding to confirm that they are actually being served a warrant by police.
And that lack of exigency is reflected in the warrant, which ordered that the search should be executed in the daytime (unfortunately, in Arkansas, defined to include 6AM-10PM, regardless of daylight), because there was neither an inherent nor unusual concerns for officer or community safety.
The ATF and local police -- even if everything is as they alleged -- may not have ever chosen to execute Malinowski, but at every step of the process they prioritized a flashy arrest over the necessity actions to optimize the search for a valid prosecution, and over defendant and officer and community safety. That may not be against the law, especially realizing how little any prosecutor wants to take on federal officers. But that doesn't make it legitimate.
So my question is how you can set up a home security system to be able to resist a swat team with 15 seconds+1 minute of driveway approach warning.
That's barely enough time to get awake enough to check your cameras to identify the threat, let alone get guns on target.
I've been testing my reaction time on alerts, and it's not good enough yet. The only way to buy time is stalling intruders on the driveway or at the perimeter fence. Forget about activatable measures if you can't even hit the button in time.
Of course playing individual defense is a loser's game in the first place, so it's probably a waste of time. Better to spend your effort making sure the midnight death squads are going to the enemy's houses rather than yours.
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