The gun scene is abuzz with the news of an IRS/ATF raid at Highwood Creek Outfitters in Great Falls. Senator Steve Daines has sent a letter demanding answers:

I’d like to point out that we don’t have very much information as to what actually happened, most of what we have is second hand, and we’ve only heard one side of the story. Everything here is speculative. We’re just going by what’s in the news, there is no real evidence of anything, yet. No sworn testimony, no affidavits, nothing. Maybe Highwood Creek Outfitters are notorious tax cheats and the IRS was trying to serve justice. Perhaps there was a good reason for the IRS to do what they did. We don’t know.

Furthermore, I am not a lawyer, and I don’t even play one on TV. The “legal theories” presented here are just questions from a lay person.

The most disturbing part of this story is that it appears that all of the Form 4473s from the store were removed by the IRS agents. What’s on the 4473? Here’s a good explanation from Wikipedia:

Form 4473 contains the purchaser’s name, address, date of birth, government-issued photo ID, National Instant Criminal Background Check System (NICS) background check transaction number, and a short affidavit stating that the purchaser is eligible to purchase firearms under federal law. It also contains the make, model, or serial numbering the firearm. 

https://en.wikipedia.org/wiki/Form_4473

There is no financial information on a 4473. The existence of a 4473 could mean that there was a transfer of a gun, but not necessarily a sale. An example is purchasing a firearm across state lines and doing the physical transfer through an FFL, as required by law. It could also mean that a gun store ran a background check but did not complete a sale. There is no way to tell how much the gun sold for or what the store’s margin was on the gun, or even whether a gun was sold. The store might have sold at a loss, or might not have made any sale at all; there’s no way to tell from these forms. There is nothing that the IRS could get from these forms that would tell them anything about the tax liability of the store. They had no business taking them, and it is highly doubtful that their warrant covered these forms.

Now let’s take a look at what the Firearms Owners Protection Act has to say in 18 U. S. Code § 926 (a) (3):

No such rule or regulation prescribed after the date of the enactment of the Firearms Owners’ Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established.

In case you missed it, the critical part of this federal law is “be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof.” Form 4473 is a type of record that gun stores are required to maintain, and thus the above federal law should apply to the forms seized from the Great Falls store by the IRS. Is there a criminal penalty for a violation of this section? Yes, it’s part of Chapter 42, and 18 U.S. Code § 924 (a) (1) (D) provides that whoever:

willfully violates any other provision of this chapter,

shall be fined under this title, imprisoned not more than five years, or both.

In order for the IRS agents to have removed those Form 4473 files to a government facility they would need to have been operating under a rule or regulation allowing them to do so. But creating that rule, even if just informally, would be violation of § 926 (a) (3). If you are prevented by law from creating a rule or regulation that would allow you to do something, then just going ahead and doing it without creating an authorizing rule is also a violation of the law that prevented you from making the rule in the first place. The agents who acted under that (non) rule are thus necessarily in violation of that section. There’s also not a question of intent: Montana Attorney General Austin Knudsen said in an interview that an ATF agent was present during the raid and told the IRS agents they were not allowed to take the files. In short, they were informed that what they were doing was against federal law. Perhaps a lawyer can explain to me why those agents who (allegedly) removed the boxes of 4473s didn’t knowingly break the law. Whoever “from Washington” called to tell that ATF agent to stand down possibly participated in a conspiracy to break that law.

I don’t have a cite, but I heard AG Knudsen state on a radio show that he couldn’t do anything about the situation because the state lacked standing to sue. According to Knudsen, the gun store, and perhaps the citizens who filled out Form 4473 at the store, who would need to bring a suit against the IRS for seizing the records. In other words, the state cannot sue on behalf of the store or citizen plaintiffs.

The store and the citizen plaintiffs may have reservations about the cost of a legal case against the IRS. They can contact the Second Amendment Foundation and/or the Firearms Policy Coalition. Both links are where you can submit a case for them to take up for free. For the rest of us, seriously consider donating to both of those and become a member.

Now back to the standing issue. My understanding is that such standing requirements apply to civil matters. What could the AG do from the standpoint of criminal law? Here is an interesting footnote in an article in the New York University Law Review:

This Article focuses on direct state enforcement of federal civil law. States may participate in various ways in the enforcement of federal criminal law as well, for example by arresting individuals for federal offenses. [emphasis added] But states lack power to enforce federal criminal law directly, such as by prosecuting federal offenders themselves in state or federal court. States play a similar role with respect to federal immigration law.

Here’s my modest proposal: Arrest the involved IRS agents in Montana, and turn them over to the feds for prosecution. There are multiple witnesses who say they saw the agents remove the forms. The AG has probable cause and frankly a very good case, in my (nonlegal) opinion. Arrest them on a Friday afternoon and let them spend a weekend in jail. No doubt the feds will be in court Monday morning declaring that they have no inclination to prosecute those agents and they must be released. But at least the agents will get a free weekend in a Montana jail. This will send a strong message to any federal agents who think they can break the law with impunity in Montana. Perhaps the agents are no longer in Montana, but I’d bet at least a few are. Take out arrest warrants on them. Another red state might pick them up to extradite them to Montana. Same effect. As they say, you can beat the rap, but you can’t beat the ride.

What are the possibilities that armed IRS agents, sure that they can’t be touched by the local law, will put up some sort of resistance? Make sure the arrests are conducted on video from multiple angles with lots of police present. Any kind of resistance means you now have them for breaking a state law. It doesn’t matter if the feds don’t want to enforce the federal law, you can prosecute them for the violation of the state law.

If they resist arrest, even if they believe the arrest is unlawful, they’ve committed a crime. MCA 45-3-108:

Use of force in resisting arrest. A person is not authorized to use force to resist an arrest that the person knows is being made either by a peace officer or by a private person summoned and directed by a peace officer to make the arrest, even if the person believes that the arrest is unlawful and the arrest in fact is unlawful.

Of course, if they use a weapon to resist arrest, they’ll have committed an assault with a deadly weapon and face felony charges. MCA 45-5-210:

(1) A person commits the offense of assault on a peace officer or judicial officer if the person purposely or knowingly causes:

(b) reasonable apprehension of serious bodily injury in a peace officer or judicial officer by use of:

(i) a weapon; or

…..

(2) (a) A person convicted of assault on a peace officer or judicial officer:

(i) under subsection (1)(a), (1)(b)(i), or (1)(c) shall be imprisoned in the state prison for a term of not less than 2 years or more than 10 years and may be fined an amount not to exceed $50,000;

I’ll submit that if a peace officer tells you that you’re under arrest and you merely put your hand on your weapon, you’ve caused a “reasonable apprehension of serious bodily injury in a peace officer” and you’ll get 2-10.

Either way, whether or not the feds want to enforce the federal law is irrelevant. Those IRS agents should also consider that according to 18 U.S. Code § 3282 (a):

In general – Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.

They’re basically betting that a republican administration won’t be in power over the next five years.

Does this seem like an overreaction? Is this escalating things too far? Consider what is likely going on. We know there is no tax reason to take the 4473s, so what are they doing? What else is going on? Take a look at this photo of Highwood Creek’s inventory. The 4473s contain the make/model and serial number of the firearms, as well as the name and address of the purchaser. The ATF’s pistol brace rule just went into effect. The IRS just acquired a list of firearm purchases that the ATF can compare against their NFA registrations. Run that list against the social media profiles and find some people likely to put up a fight. The ATF will get what they want. They can get an example of why they claim there needs to be a complete ban on assault weapons. Don’t give it to them.

If there’s no lawful reaction to this, by the AG or the gun store (or customer plaintiffs), then it sends the clear signal that the Biden administration can continue to flaunt the law and do whatever they want in Montana. This story has a lot of visibility in right-leaning media and in the gun blogosphere, but the average American doesn’t know what is going on. If AG Knudsen went on the talk shows and, instead of saying he can’t do anything, started telling everyone that arrest warrants have been issued for those agents, it would get the attention of the mainstream media. They wouldn’t be able to ignore the story. Perhaps people would start to wake up.

If AG Knudsen isn’t willing to take this up, Sheriff Jesse Slaughter, who claims to be a constitutional sheriff, has jurisdiction. Perhaps he wants the national name recognition that would come from taking this stand.

This wouldn’t be an overreaction. The other side is playing for keeps. This is part of a strategy so that they can conduct raids on Montana citizens and they suspect that it could end in violence. Attorney General Knudsen, it’s time to step up.

BTW, it’s been more than a week. Where is John Tester on this? You know, that staunch supporter of the Second Amendment who is up for re-election next year. Nothing but crickets from him (unlike Sen. Daines and Rep. Rosendale).