Nicely demonstrating smart, creative, proactive lawyering in the criminal defense context, an attorney representing a California gun store owner has preemptively obtained a federal court order forbidding the federal Bureau of Alcohol, Tobacco, and Firearms to carry out a threatened raid of the owner's store, Ares Armor, to confiscate products and customer information. ATF had demanded that the business owner disclose information and records concerning all customers who had bought so-called “80% lower receivers” from the store. These are small parts that can be combined with numerous other parts to assemble a finished firearm. The parts are not considered firearms and neither they nor their sale is illegal, provided they are manufactured to specifications prescribed by ATF. Reportedly, the versions possessed and being sold by Ares did not meet those specifications, and therefore ATF demanded to seize not only the Ares inventory, but also Ares’s customers information. Ares was willing to hand over the inventory but refused to provide information on its customers, which it said would violate the privacy rights of the customers and Ares. The Ares owner alleges that ATF agents threatened that if he did not turn over all such information, the agents would raid all his stores and bring criminal charges against him and his staff, effectively destroying his business.
It was in response to the asserted Government threat that Ares sought a temporary restraining order (TRO) prohibiting the ATF from carrying out the threat. A U.S. District Judge for the Southern District of California granted the order requested by Ares. The TRO will remain in place to protect Ares until a forthcoming hearing on whether that protection will be made more permanent.
Seeking to restrain the threatened raid by the federal agency means of a preemptive TRO is a creative, and so far here, effective, method of preemptively protecting one’s Constitutional rights against an imminent threat to them by Government authorities in the course of a purported criminal investigation. The legal standards for extending that protection to a longer-term basis (in the form of a temporary or permanent injunction) are greater than those for obtaining the TRO, and thus the extension likely will be more difficult to obtain. But for persons facing a threatened destruction of their business in retaliation for their assertion of Constitutional privacy rights, as purportedly is Ares here, the proactive move certainly seems to be at least a worthwhile strategy. Experience suggests that the threat from ATF will be no greater because the owner chose this route than it would have been had he not.
Roger C. Wilson has represented a number of clients in connection with pending or threatened federal weapons- or firearms-related criminal charges. He has obtained resolution of some of those cases after indictment; and in others, by becoming involved at an early stage, prior to indictment, he has succeeded in avoiding the bringing of such charges at all. That these instances have involved consultations with and agreement by ATF agents does not mean that such a resolution always can be obtained in this way. The California case well illustrates how other means can be used when necessary.
It was in response to the asserted Government threat that Ares sought a temporary restraining order (TRO) prohibiting the ATF from carrying out the threat. A U.S. District Judge for the Southern District of California granted the order requested by Ares. The TRO will remain in place to protect Ares until a forthcoming hearing on whether that protection will be made more permanent.
Seeking to restrain the threatened raid by the federal agency means of a preemptive TRO is a creative, and so far here, effective, method of preemptively protecting one’s Constitutional rights against an imminent threat to them by Government authorities in the course of a purported criminal investigation. The legal standards for extending that protection to a longer-term basis (in the form of a temporary or permanent injunction) are greater than those for obtaining the TRO, and thus the extension likely will be more difficult to obtain. But for persons facing a threatened destruction of their business in retaliation for their assertion of Constitutional privacy rights, as purportedly is Ares here, the proactive move certainly seems to be at least a worthwhile strategy. Experience suggests that the threat from ATF will be no greater because the owner chose this route than it would have been had he not.
Roger C. Wilson has represented a number of clients in connection with pending or threatened federal weapons- or firearms-related criminal charges. He has obtained resolution of some of those cases after indictment; and in others, by becoming involved at an early stage, prior to indictment, he has succeeded in avoiding the bringing of such charges at all. That these instances have involved consultations with and agreement by ATF agents does not mean that such a resolution always can be obtained in this way. The California case well illustrates how other means can be used when necessary.
RSS Feed