20. The court accepts the representations of members of his
community that he is a person of good character, of sound mind,
with no history of mental illness, and is not likely to act in a
manner dangerous to the public safety.
CONCLUSIONS OF LAW
21. The Gun Control Act of 1968 makes it unlawful for any
person convicted of a crime punishable by imprisonment for a term
exceeding one year "to ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition which has
been shipped or transported in interstate commerce."
18 U.S.C. § 922(g). Thus, as a convicted felon, Mr. Palma was barred as a
matter of federal law from possessing any firearm.
22. Congress provided that a person who is prohibited from
possessing, shipping, transporting, or receiving firearms or
ammunition may apply to the Secretary of the Treasury for relief
from the disabilities imposed by federal law with respect to the
acquisition, receipt, transfer, shipment, transportation, or
possession of firearms. See 18 U.S.C. § 925(c).
23. Section 925(c) further provides that "the Secretary may
grant such relief if it is established to his satisfaction that
the circumstances regarding the disability, and the applicant's
record and reputation, are such that the applicant will not be
likely to act in a manner dangerous to public safety and that the
granting of the relief would not be contrary to the public
24. The authority to grant relief has been delegated by the
Secretary of the Treasury to the Director of the Bureau of
Alcohol, Tobacco and Firearms (ATF). See 27 C.F.R. § 178.144.
25. Under the provisions of § 925(c), a person whose
application for relief is denied by the ATF may file a petition
with the United States District Court for the district in which
he or she resides to request judicial review of the denial. See
18 U.S.C. § 925(c). The statute provides that in reviewing the
agency's denial of the application, the court may in its
discretion admit additional evidence "where failure to do so
would result in a miscarriage of justice." Id.
26. The Treasury, Postal Service, and General Government
Appropriations Act, 1993, Pub.L. No. 102-393, 106 Stat. 1729
(1992) (Public Law 102-393), became effective on October 6, 1992.
Title I of the law appropriated sums for the Department of the
Treasury and various Treasury agencies, including the ATF, for
the fiscal year ending September 30, 1993. The ATF appropriations
language contained the specific proviso: "none of the funds
appropriated herein shall be available to investigate or act upon
applications for relief from Federal firearms disabilities under
18 U.S.C. § 925(c)." 1992 U.S.C.C.A.N. (106 Stat.) 1732
(emphasis added). Congress has imposed similar spending
prohibitions in appropriations legislation for fiscal years
1994-1999. See Treasury, Postal Service, and General Government
Appropriations Acts, 1994-1998, Pub.L. No. 103-123,
1993 U.S.C.C.A.N. (107 Stat.) 1226, 1228-1229 (1993); Pub.L. No.
103-329, 1994 U.S.C.C.A.N. (108 Stat.) 2382, 2385 (1994); Pub.L.
No. 104-52, 1995 U.S.C.C.A.N. (109 Stat.), 468, 471 (1995);
Pub.L. No. 104-208, 1996 U.S.C.C.A.N. (110 Stat.) 3009-314,
3009-319 (1996); Pub.L. No. 105-61, 1997 U.S.C.C.A.N. (111 Stat.)
1272, 1277 (1997); and Pub.L. No. 105-277 (October 22, 1998). The
ATF is thus precluded from spending appropriated funds to
investigate or act upon applications from individuals for relief
from firearms disabilities. See generally Rice v. Department of
Alcohol, Tobacco and Firearms, 68 F.3d 702, 707 (3d Cir. 1995);
Burtch v. U.S. Dep't of the Treasury, 120 F.3d 1087, 1089 (9th
27. Congress has repeatedly stated that the reason for this
prohibition is that an ATF determination to grant relief "could
have devastating consequences for innocent citizens if the wrong
made," and that the ATF's scarce resources "would be better
utilized" on more pressing matters, such as fighting crime.
S.Rep. No. 103-106 at 20 (1993); S.Rep. No. 102-353, at 19-20
(1992). See also Owen v. Magaw, 122 F.3d 1350, 1352 (10th Cir.
1997); United States v. McGill, 74 F.3d 64, 67 (5th Cir.). In
conjunction with its fiscal year 1996 reenactment of this ban,
Congress explained that "those who commit felonies should not be
allowed to have their right to own a firearm restored . . . there
is no reason to spend the government's time or taxpayer's money
to restore a convicted felon's right to own a firearm." H.R.Rep.
No. 104-183 at 15 (1995). However, Congress has not changed the
law providing legal authority to grant relief in appropriate
cases, and § 925(c) remains on the books.
28. In Rice v. United States, 68 F.3d 702 (3d Cir. 1995), the
Third Circuit held that, notwithstanding Congress' refusal to
appropriate funds to the ATF to investigate applications for
restoration of federal firearms privileges, the District Court
had jurisdiction to consider a petitioner's application for
relief from federal firearms disability.*fn1 After concluding
that the appropriations acts "fail to show a clear intent to
repeal section 925(c) or to preclude judicial review of BATF's
refusal to grant relief from firearms disabilities," id. at
707, the court analyzed the situation under the rubric of
exhaustion of administrative remedies. The court recognized that
this type of case "poses a special problem," because "[t]he
initial determination that [the petitioner] qualifies for relief
from his firearm disability involves the exercise of BATF's
discretion and relies on BATF's expertise — two factors that
favor strict application of the exhaustion requirement." Id. at
709. Because the statute "gave the district courts discretion to
create or supplement the administrative record when necessary to
avoid a miscarriage of justice," though, the court ruled that
when the ATF is precluded from considering applications, the
court can consider them. Id.
29. The Third Circuit instructed that a district court should
proceed as follows:
[T]he district court should determine in the exercise
of its sound discretion whether the failure to admit
[the petitioner]'s evidence would result in a
miscarriage of justice. Following that initial
decision, the district court should then decide, on
the basis of all the evidence before it, whether [the
petitioner] has met his burden of showing he "will
not be likely to act in a manner dangerous to public
safety and that the granting of the relief would not
be contrary to the public interest."
Id. at 709-10, quoting 18 U.S.C. § 925(c). The court
cautioned that because "the Supreme Court has held that the right
to possess a firearm after a disabling conviction is a privilege,
not a right," the petitioner "bears a heavy burden in his attempt
to support his statutory claim." Rice, 68 F.3d at 710.
30. The court described the ATF's procedure as follows:
To determine whether an applicant is entitled to
relief, BATF conducts a broad-based field
investigation concentrating on the statutory criteria
surrounding the applicant's disabling conviction and
the applicant's record and reputation. It also
interviews the applicant,
the listed character references, employers, members
of the community where the applicant lives, the
applicant's probation officer and other law
enforcement officers, as well as other law
Id. at 705 (internal quotation marks and cites omitted). The
court considers this advisory as to the types of information it
is to evaluate in ruling on Mr. Palma's request.