Can you Fund your Own Federal Relief Determination if You are a Prohibited Person?

Quite often, individuals call me because they are prohibited under Federal Law, usually 18 U.S.C. 922(g)(1), but not specifically under the laws of the Commonwealth of Pennsylvania. However, since they are prohibited at the federal level, that individual is a prohibited person that cannot use or possess any firearm or ammunition, including black powder.

Pursuant to 18 U.S.C. 925©, there is the ability to apply for federal firearms relief; however, since 1992, the Congress has placed in the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (BATFE) annual appropriations bill that it may not use any of the appropriated money for firearms relief determinations. What the appropriations bills does NOT say is that the ATF cannot conduct firearms relief determinations which have been privately funded. Accordingly, I submitted a request, on behalf of a client, for the cost to perform a firearms relief determination, which would be funded by my client.

Previously, in the U.S. Supreme Court case of U.S. v. Bean, 537 U.S. 71 (2002), the Court held that the refusal by the BATFE to perform a firearms relief determination, because of the Congressional appropriations bill, was not a defacto denial that provided for access to the federal courts.

The BATFE just respond and you can see its determination here. TheBATFE asserts three positions, which it argues prevents it from conducting privately funded firearms relief determinations.

Argument 1: The ATF interprets the Congressional language in the appropriations bill, Consolidated Appropriations Act, 2010, Public Law 111-117, December 16, 2010, as “a clear indication that Congress does not want the ATF to act on such applications [firearms relief determinations].” If the Congress wants to prevent the ATF from being able to conduct firearms relief determinations, then why hasn’t the Congress amended the 18 U.S.C. 925©, such that firearms relief determinations are no longer provided for? It is that Congress doesn’t want ANY relief determinations to be made; or, is it that the Congress doesn’t want to provide for publicly funded relief determinations? Given the language of the appropriations bill and the absence of Congressional action to eradicate 18 U.S.C. 925©, it seems clear that the Congress is only speaking to the use of public money.

Argument 2: Title 31 of the United States Code, Section 1341 “prohibits any officer or employee of the United States Government from ‘making an expenditure exceeding an amount available in an appropriation…” But, who is asking for an expenditure? Black’s Law Dictionary, Third Pocket Edition, defines an expenditure as “1. The act or proceed of paying out; disbursement. 2. A sum paid out.” The request is to privately fund a relief determination, not for the BATFEto pay out any money. While the result may be the the ATF would utilize the privately funded relief determination money to pay its employees for their time, Section 1341 only prohibits them from expending more than which is allocated. Hence, if the relief determination cost was estimated to be $1000, the individual paid the $1000, and the cost for the determination was going to exceed $1000, the ATF would be prohibited from using any additional funds over the $1000 mark. However, if the individual paid the additional required funds, there should not be an issue with Section 1341.

Argument 3: Title 31 of the United States Code, Section 3302 provides that “an official or agent of the Government receiving money for the Government from any source shall deposit the money in the Treasury as soon as practicable without deduction for any charge or claim” and, as a result, any funds received would have to be placed into a Government’s general account and not an account of the ATF. It should be noted that Section 3302 only requires that the money be deposited with the Treasury and there is nothing within Section 3302 that precludes the keeping of separate accounts or disbursement of those accounts to Departments of the U.S. Government. Moreover, Section 3302©(1) requires the Secretary to issue receipts reflecting the deposit. Accordingly, there should be no problem with tracking or accounting for the money.

The question now arises whether the refusal by the BATFE to provide for privately funded firearms relief determinations is a basis that permits the federal courts to consider relief determinations. Unfortunately, the cost is likely to be substantial as the case almost definitely will go to the US Supreme Court. Hopefully the NRA or another pro-2nd Amendment organization will consider funding such a case.

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