Harris News Agency, Inc., doing business as Jim's Hobbies, Plaintiff - Appellant
William L. Bowers, Deputy Assistant Director of Industry Operations Bureau of Alcohol, Tobacco, Firearms and Explosives, Defendant - Appellee
Submitted November 18, 2015
Appeal from United States District Court for the District of Nebraska - North Platte.
For Harris News Agency, Inc., doing business as: Jim's Hobbies, Plaintiff - Appellant: Scott L. Braum, Timothy Rudd, Scott L. Braum And Associates, Dayton, OH; Patrick M. Heng, Waite & Mcwha, North Platte, NE.
For William L. Bowers, Deputy Assistant Director of Industry Operations Bureau of Alcohol, Tabacco, Firearms and Explosives, Defendant - Appellee: Robert Homan, Assistant U.S. Attorney, U.S. Attorney's Office, District of Nebraska, Omaha, NE; Lynnett Wagner, U.S. Attorney's Office, District of Nebraska, Omaha, NE.
Before RILEY, Chief Judge, BEAM and KELLY, Circuit Judges.
RILEY, Chief Judge.
Harris News Agency, Inc. (Harris News) applied for a federal license to sell guns. William Bowers, the Director of Industry Operations for the Kansas City Field Division of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), denied the application on the ground that the Harris News officers and co-owners willfully allowed a felon to possess firearms. The district court agreed. Because the ATF did not show the Harris News officers and owners did anything to further the felon's possession of firearms, we reverse.
James Harris Sr. sold guns under a federal license at his store, Jim's Hobbies, in North Platte, Nebraska. James's wife, Lois Harris, and their two sons, James Harris Jr. and Brian Harris, worked with James Sr. at the store. Brian continued working there after he was convicted of a felony in Nebraska state court in 1992. His work included gunsmithing, which naturally involved handling guns.
In 2011, the ATF investigated a tip about Brian working with guns. The investigation eventually resulted in James Sr. pleading guilty to lying to an ATF investigator
about Brian possessing guns at the store. See 18 U.S.C. § 1001(a)(2). Part of James Sr.'s plea deal was surrendering his firearms license. To " keep the family business going," Lois and James Jr. applied for a new license on behalf of Harris News, a corporation in which they are the president and vice president, respectively, and the only shareholders. They hoped to continue operating Jim's Hobbies, through Harris News, without James Sr.'s or Brian's involvement.
An applicant for a license to sell guns must not have " willfully violated any of the provisions of [18 U.S.C. ch. 44]." 18 U.S.C. § 923(d)(1)(C). The ATF, after an informal hearing, concluded Harris News willfully violated 18 U.S.C. § 922(g)(1) (part of the covered chapter) and denied the Harris News application. Section 922(g)(1) forbids felons to possess guns. The ATF's theory was that by working at Jim's Hobbies and " allowing" Brian to work with firearms and ammunition, Lois and James Jr. also had become liable for Brian's illegal possession under 18 U.S.C. § 2(a), which makes anyone who " aids, abets, counsels, commands, induces or procures" the commission of a federal crime " punishable as a principal." See also United States v. Roan Eagle,8 ...