In twenty-two states, ATF allows licensed firearm dealers (FFL’s) to accept a state concealed carry license or permit (in Michigan, the terminology is Concealed Pistol License, or CPL) in lieu of a federal background check, because those states have concealed carry permit requirements at least as stringent as the federal background check requirements (see the ATF Permanent Brady Permit Chart, so-named because the state’s permit or license program fulfills the requirements of the federal Brady Law background checks for firearm purchases on an ongoing basis). In practice, this means that permit/license holders in these states can skip the NICS background check when purchasing firearms from a licensed gun dealer, whether online, in-store, or at a gun show, even though normally required for the dealer to do the background check. Note the caveat that an individual’s permit or license must be less than five years old, so in states that issue “lifetime” permits or licenses (Indiana, Louisiana, Missouri, and Tennessee), the permit/license holder will have to renew it every five years in order to skip the NICS background check when purchasing a firearm from an FFL.
Michigan was one of these “Permanent Brady Permit” states from 2006 until the end of 2019, but the state legalized recreational marijuana sales starting in December 2019. The state did not modify its CPL program, however, to screen out marijuana users. Marijuana remains unlawful under the federal Controlled Substances Act. Federal firearm statutes, such as 18 U.S.C. § 922(g)(3) prohibit regular users of controlled substances, including marijuana, from possessing or transporting any firearms.
About two weeks ago, on March 3, 2020, the ATF Acting Director issued a Public Safety Advisory to all licensed firearm dealers in Michigan, effectively revoking this substitution in Michigan. All licensed gun dealers in Michigan must now conduct NICS background checks for all firearm sales, even if the purchaser has a valid concealed carry permit. This is the latest in a confusing series of steps by the U.S. Attorney General and/or ATF over the years regarding firearm enforcement in states with some form of marijuana legalization (medical marijuana is far more common), but is consistent with the current DOJ trend toward stepped-up enforcement of federal gun and drug laws. As a technical matter, note that the ATF Advisory mostly references 18 U.S.C. § 922(t), which is the section requiring FFL’s to conduct background checks.
“Advisories” by federal regulatory agencies, like the one under consideration here, have a somewhat complicated place within Administrative Law. Agencies frequently issue official “Advisories” and “Guidance” letters or documents to inform regulated entities, or an entire regulated industry, about its current policies regarding enforcement policies or priorities, permitting/licensing approvals or revocations, or changed stances the meaning of federal statutes that come under the agency’s purview. The federal Administrative Procedure Act specifically exempts “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” from normal notice-and-comment requirements for new regulations or regulatory changes, which normally can take months or years, and can invite both political and judicial scrutiny. Legally, this means that these Advisories or Guidance Letters do not have the force of law – they lack the legal status of a promulgated regulation or an enacted statute, and this in turn has implications for the amount of deference such texts receive from the courts (Chevron does not apply, for example). In the arena of firearm policy, the exemption for “interpretive rules” is part of the multi-circuit litigation over the bumpstock ban, as the DOJ now maintains that the ban is not a new regulation, but merely an interpretation of a longstanding statutory provision – and therefore the ATF does not need to invoke Chevron deference for the bumpstock ban (Justice Gorsuch’s lengthy concurrence in the denial of certiorari for Guedes v. ATF highlights the controversy of applying Chevron to ATF firearm regulations).
Most of the time, agency guidance documents are helpful information for regulated entities about how to comply with existing statutes and regulations, and how to avoid becoming the target of an investigation or enforcement action. In practice, these agency documents sometimes provide “safe harbor” provisions, essentially promising regulated entities or individuals that they will not face an enforcement action (which could be an agency lawsuit, or a denial or revocation of a valuable permit or license) if they stay above or below certain thresholds. Such “safe harbor” indications (or their opposite, a “you’re-definitely-in-trouble” warning), in turn, can sometimes appear to be an agency’s attempt to circumvent the hassle of notice-and-comment rulemaking – the agency maintains that the announcement is merely “guidance” or “advice,” but the line-drawing is functionally a new rule, at least from the viewpoint of the regulated parties. Several circuit court and Supreme Court decisions have wrestled with this blurry line between agency guidance documents and full-fledged regulations; the cases go both ways, making this an unpredictable and confusing area of Administrative Law, though the courts generally disfavor agencies subsequently trying to enforce the quasi-rules set forth in these guidance documents. The area is unpredictable enough that it is often still worthwhile for agencies to try this tactic if there is some reason to avoid notice-and-comment procedures; and worthwhile for regulated entities to challenge the guidance and insist that the agency follow rulemaking procedures. Under the Trump Administration, the Department of Justice has been signaling a move away from issuing or enforcing these advisories and guidance documents in the 2017 “Sessions Memo” (discouraging issuing guidance documents), the 2018 “Brand Memo” (limiting the use of these texts in enforcement) and the late-2018 amendments to the DOJ’s internal Justice Manual:
Criminal and civil enforcement actions brought by the Department must be based on violations of applicable legal requirements, not mere noncompliance with guidance documents issued by federal agencies, because guidance documents cannot by themselves create binding requirements that do not already exist by statute or regulation. See JM 1-19.000. Thus, the Department should not treat a party’s noncompliance with a guidance document as itself a violation of applicable statutes or regulations. The Department must establish a violation by reference to statutes and regulations. The Department may not bring actions based solely on allegations of noncompliance with guidance documents. The Department may continue to rely on agency guidance documents for purposes, including evidentiary purposes that are otherwise lawful and consistent with the Federal Rules of Evidence, that do not treat such documents as creating by themselves binding requirements that do not already exist by statute or regulation.
The excerpt above illustrates the complex situation with these official documents – they are not “law,” and should not be enforced as such, but they are enough like laws that the DOJ has to instruct its attorneys not to enforce them as laws, while at the same time, they can rely on them (i.e., use them) as evidence in their enforcement actions. Moreover, as indicated by the new Advisory to Michigan FFLs – effectively rescinding or revoking Michigan’s 14-year status as a “Permanent Brady Permit” state – federal agencies continue to issue these documents, including agencies within the DOJ, such as ATF. Note that a licensed gun dealer in Michigan can now face an enforcement action (including potential loss of their license) for selling a gun to a CPL holder without conducting a background check, which was not the case for the last 14 years. In addition, ATF has already arrested and charged at least one Detroit resident this year, for posting images on social media of his recreational marijuana use, now legal under state law. He also posted photos of himself holding his handgun. (Note: it is not clear from published reports whether this defendant had a Michigan CPL license). He faces up to 10 years in prison.
