Gun shop owner files lawsuit against U.S. for loss of license

Baltimore Gunsmith targeted for illegal sales, ATF says

June 29, 2000|By Peter Hermann | Peter Hermann,SUN STAFF

A Fells Point gun shop owner, long targeted by law enforcement agencies as the most prolific source of guns used in Baltimore crimes, has sued federal authorities who pulled his license to sell firearms.

The lawsuit, filed last month in U.S. District Court by the owner of Baltimore Gunsmith, Larry DiMartino, accuses the Bureau of Alcohol, Tobacco and Firearms of acting as "investigator, charging party, prosecutor and deciding entity" during an administrative hearing in February.

Federal officials declined to comment on the lawsuit but said they went after the store as part of a crackdown on illegal gun sales and after a proliferation of weapons traced to the shop turned up at city crime scenes.

A lawyer for the store said in the suit that it was impossible for his clients to defend against a dozen allegations of misconduct from 1991 to 1998, some of which were resolved in court with not-guilty verdicts against current and former owners.

DiMartino and his lawyer, Benjamin Lipsitz, declined to comment yesterday. They are seeking a court-ordered reversal of the April license denial. No court date has been set.

Baltimore Gunsmith, an institution since 1904 with its signature revolver-shaped sign on South Broadway, remains open pending its appeal.

The case has highlighted the problem of "straw purchases," people illegally buying guns for others, which enables the true purchasers to avoid stringent background checks.

Prosecutors have difficulty winning such cases because they must prove that store owners knew the guns they sold were destined for someone not eligible to buy a weapon legally. Gun store owners have complained the law is difficult to abide by because it holds them responsible for what happens to guns after they are legitimately sold.

Lipsitz wrote in the lawsuit that his clients sold weapons to people who filled out all forms and passed police background checks.

"Yet despite all that, they now find themselves faced with an ultimate sanction, loss of licensure, because they were not wise enough to recognize deception practiced upon them by ATF agents," the suit says.

In his 20-page defense of the store, Lipsitz argues that the government tricked the owners during several undercover stings.

"Firearms dealers are not yet required to keep behind their counters either crystal balls, mind readers or polygraph machines to discern the intentions of prospective customers or the validity and truthfulness of statements made to them by prospective firearms purchasers," the suit says.

Baltimore Gunsmith has long been a source of complaints by handgun-control advocates, who repeatedly protested outside the store, and city police, who once called it "the 7-Eleven of gun stores."

State and federal authorities have failed in attempts to close the store and charge Larry DiMartino and his brother, previous owner Anthony DiMartino, with gun offenses.

A study by the ATF in 1997 found that 19 percent of guns seized in Baltimore crimes were purchased at Baltimore Gunsmith, putting it at the top of a list of seven Baltimore-area gun dealers from which nearly half of the guns used illegally in Baltimore were obtained.

In ordering DiMartino's license pulled, Mary Jo Hughes, director of industry operations for the Baltimore ATF office, ruled that both DiMartinos and their store "have willfully violated the Gun Control Act."

In her written ruling, Hughes recounted several examples from the February hearing, which was closed to the public.

One dates to 1991, when Sheila Kelly bought eight guns on two occasions for Anthony Jones, who has since been convicted and sentenced to life in prison for running an East Baltimore drug organization linked to more than a dozen killings. Jones, 17 at the time, accompanied Kelly into the store and handed her the money for the transaction, the ATF said.

In subsequent years, the ATF said, it sent in several undercover agents, who they say made it clear to store owners that they were buying guns for other people. Those included an Uzi, a Colt Python .357-caliber Magnum revolver and two Sig Saur pistols.

In 1993, the ATF said, Larry DiMartino sold an undercover agent three guns, including a Desert Eagle Israel Military Industries .44-caliber Magnum pistol. The ATF said the store listed the sale to a woman, even though its male agent, a non-Maryland resident who was therefore barred from buying guns from a licensed in-state dealer, handed over the money and walked out of the store with the weapons.

The bulk of the ATF's case against the store stems from a 1997 undercover sting in which an agent posing as a waitress bought a $195 Beretta pistol and, in secretly recorded conversations, tried to make it clear that she was buying the gun for a convicted murderer whom the DiMartinos knew.

Federal prosecutors, for reasons they would not specify, declined to prosecute the case. The state attorney general's office took up the case but was barred from using the federal wiretap in state court because Maryland law allows secret recordings by police only in cases directly involving murder, drugs or gambling.

A jury acquitted Anthony DiMartino of engaging in a straw purchase, a defeat in the state's first attempt to convict someone under the 1996 straw-purchase law.

The ATF used the recordings during its administrative hearing, which Hughes cited as ample evidence to deny a license to the DiMartinos.

Special Agent Michael Campbell, a spokesman for the Baltimore ATF field office, said his office is targeting troublesome stores more aggressively. He would not comment on any active investigations.

"We are starting to take a more proactive approach to take a stance against dealers to try to skirt the law or who aren't accurately keeping records," he said.

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