An ATF Industry Operations Investigator violated the Second Amendment rights of a central Florida man last month, when he ordered a gun dealer to halt a pistol sale because he believed the purchaser possibly smelled of marijuana.
The Industry Operations Investigator, or IOI, who is based out of ATF’s Tampa Field Office, was conducting a routine audit of a Plant City-based gun dealer when Daniel walked in to pick up a 9mm Beretta APX he had ordered through Gun Broker, which had been shipped from a pawn shop in Alabama.
The Second Amendment Foundation agreed to withhold Daniel’s last name from this story. He had already completed an ATF form 4473, denying he was “an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance,” passed a background check and was ready to take his new handgun home until the IOI intervened and ordered the gun dealer to stop the sale.
“I wasn’t high,” Daniel told the Second Amendment Foundation. “None of this makes any sense to me.”
There are many reasons why Daniel could have smelled like marijuana – if the IOI’s allegations are even true.
Florida legalized medical cannabis in 2016. As of last year, the state has issued more than 831,000 medical cannabis cards. There are hundreds of cannabis dispensaries located throughout the state. While federal law still criminalizes marijuana use or possession, even ATF’s Tampa spokesman Jason Medina admitted it was possible that Daniel could have been exposed to second-hand smoke, if his spouse, friends or family use cannabis medicinally.
“That’s true,” Medina admitted last week during a brief interview.
In addition, Amazon and hundreds of other retailers offer marijuana-scented candles, incense, sprays, air fresheners, colognes, perfumes and essential oils – any one of which could have caused a similar odor.
The IOI’s actions raise other questions, which Medina refused to address. Most notably, ATF IOIs are not real cops, or as Medina explained, are “not sworn.”
“They are not certified,” he said. “They are regulators.”
As a result, IOIs are not trained like real cops. Medina would not say whether the IOI who stopped the sale was ever trained to detect the smell of marijuana, or whether his observations were based upon his personal use. Neither would he say whether the IOI was trained to recognize the symptoms of someone who is under the influence of marijuana.
Medina would not address under what circumstances an IOI can halt a firearm transfer – a question he described during his brief interview as “a good one.” Neither would he disclose whether the IOI’s actions were within ATF’s policy and procedures.
“Someone will get back to you,” Medina promised Friday.
As of close of business Monday, neither Medina nor anyone else was willing to discuss the case, including the IOI’s boss, Aaron Gerber, the Director of Industry Operations for ATF’s Tampa Field Office. Gerber did not respond to calls, texts or emails seeking his comments for this story.
Takeaways
As for ATF’s disturbing pattern of ignoring media questions that they cannot control – keep in mind ATF director Steve Dettelbach just gave a 21-minute interview to CBS that contained nothing but softball questions – the agency needs to remember it is funded by tax dollars, so the public has a right to know about their employees’ conduct and misconduct.
Daniel denied he used marijuana on his 4473. That should have been good enough. He should have been taken him at his word. Instead, the IOI violated his constitutional rights based on a mere sniff. This is just the latest example of the ATF making up an excuse to deny a purchase and then hiding from any ensuing scrutiny or fallout.
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This story is part of the Second Amendment Foundation’s Investigative Journalism Project and is published here with their permission.
4 Responses
“Neither would he disclose whether the IOI’s actions were within ATF’s policy and procedures.”
Do they have the legal authority to do what they just did?
1. The ATF does not have authority to order the FFL to not sell a gun to a person because the ATF thinks they smell something. They need actual proof the person actually did use pot, this is not a traffic stop and the conditions of conducting commerce do not qualify for ‘I think’ logic here. It could have been anything the ATF smelled, there are lots of things that smell like pot even a combination of firearms cleaning ‘solutions’ have produced a smell like pot. It could have been the person had been around a medical pot user and the smell got on them. It could have been anything, even some mixtures of actual tobacco.
2. It is not within ATF authority to stop commerce at the point of sale without justifiable probable cause that can be articulated for a warrant or court order or that justifies arrest/detention. The fact this ATF person did not pursue arrest/detention means it did not rise to a level of probable cause.
3. Even if the person was a medical pot user and had used pot this ATF idiot had no authority to intervene based upon ‘smell’ as such is too subjective to constitue probable cause in this application.
This is a blatant government tyrannical violation of more than just the 2A, it was also a violation of this person’s 4A rights because ‘I think I smell’ is not probable cause.
and… not to forget this IOI person was not law enforcement ATF.
Think about this …. that an ordinary person off the street with zero authority could walk into a gun store and order the store not to sell you a gun because they think they smell pot on ya.
That’s what this was. This ATF IOI idiot had zero authority for that action just like that ordinary person off the street would have zero authority for doing that to you. This is a ‘bean counter’, their authority only encompasses ‘bean counting’ not law enforcement or ‘I think’.
“Hey ATF IOI. I think you smell like pot. That makes you a danger so makes me fear for the safety of my employees and my self. So to protect us from you, you may not come in”