Agents of the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) suspected that Bryan Malinowski, executive director of the airport in Little Rock, Arkansas, and an avid firearms collector, was reselling enough firearms at gun shows to make him more of a commercial dealer than a hobbyist. That meant he should, in the ATF’s view, get a Federal Firearms License. So on March 19, agents did what law enforcers do when they suspect people of paperwork violations: They raided his home before dawn, taped over the doorbell camera, and shot Malinowski dead less than a minute later when he opened fire on intruders who had just busted in his front door.
Unsurprisingly, the ATF agents are on their way to evading consequences for causing a man’s death over a paperwork violation.
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Δ Self-Defense, But for Who?
“A law enforcement officer is justified in using deadly physical force if the officer reasonably believes that the use of force is necessary to defend himself or a third person from the use of deadly force,” Sixth Judicial District Prosecutor Will Jones writes in his letter to ATF Special Agent Joshua Jackson absolving the agent who killed Malinowski of legal liability. “Given the totality of the circumstances, Agent 2 had a reasonable belief that deadly force was necessary to defend himself and Agent 1. Therefore, the use of deadly force by Agent 2 was in accordance with Arkansas law and was justified.”
Of course, Malinowski himself might have felt justified in using deadly force given that the front door to his family’s home had been battered down just seconds after strangers began banging on the door.
“Had he survived he was almost certainly entitled to claim self-defense in the wounding of the agent based on the reckless manner in which the government planned and executed the search,” Bud Cummins, a former U.S. Attorney who represents the Malinowski family, told me. A Rules-Defying Raid
Reckless is right. In 2021, the Justice Department issued guidance to federal agencies on the use of chokeholds and no-knock raids. The raid on Malinowski’s home falls well outside that guidance.
“Because of the risk posed to both law enforcement and civilians during the execution of ‘no knock’ warrants, it is important that this authority be exercised only in the most compelling circumstances,” Deputy Attorney General Lisa Monaco wrote. “An agent may seek judicial authorization to conduct a ‘no knock’ entry only if that agent has reasonable grounds to believe at the time the warrant is sought that knocking and announcing the agent’s presence would create an imminent threat of physical violence to the agent and/or another person.”
Malinowski was a prominent member of the communityhe’s still listed on the Little Rock website as executive director of the Bill & Hillary Clinton National Airportsuspected of sliding from the category of a hobbyist selling off unwanted guns to a dealer engaged in commercial activity. That’s not a real crime involving victims, only a technical violation that could be made legal (matters of right and constitutionality aside) by getting the required license. Surely, the ATF agents must have had more to go on than that before kicking in Malinowski’s door?
The ATF didn’t respond to my queries. But the affidavit for the search warrant in the case focuses entirely on Malinowski’s sales at gun shows and mentions that a few were later involved in crimes. There’s no hint that Malinowski posed a danger.
“Malinowski was solely suspected of violating ATF’s unconstitutionally vague rules about qualifying as a ‘person, engaged in the business of selling firearms’ based on subjective observations about his appearance as an exhibitor at occasional gun shows,” Cummins, the Malinowskis’ attorney, told me. Speaking from experience, he added, “this is undoubtedly, the least serious crime that a U.S. attorney’s office would even trifle with.”
“Unconstitutionally vague” is a nice way of describing rules that might get your door kicked in if ATF agents read the wrong tea leaves or just don’t like you. Legality Is a Matter of Interpretation
“Federal law does not establish a ‘bright-line’ rule for when a federal firearms license is required,” according to ATF’s official guidance for the public, updated last year. “As a result, there is no specific threshold number or frequency of sales, quantity of firearms, or amount of profit or time invested that triggers the licensure requirement. Instead, determining whether you are ‘engaged in the business’ of dealing in firearms requires looking at the specific facts and circumstances of your activities.”
Malinowski may well have read those amorphous guidelines and come to very different conclusions about the nature of his activity than did an ATF agent who woke up in a bad mood. He could have assumed his steady job and established hobby demonstrated that he was not a commercial dealer, while ATF agents decided differently. According to Prosecuting Attorney Will Jones, who says the ATF did nothing wrong, those differing interpretations got the Malinowski front door knocked on at 6:02:59 am on March 19, the door rammed open at 6:03:27 am, and Bryan Malinowski fatally shot at 6:03:44 am. Don’t Count on Consequences
After the release of the local prosecutor’s report exonerating the agent who killed Malinowski, the ATF will conduct an internal review of its agents’ conduct. You can probably guess how that will go. But some elected officials are also concerned. Members of the House Judiciary Committee grilled ATF Director Steven Dettelbach last month about the propriety of the no-knock raid and the justification for the lack of cameras.
“You got a citizen, the highest paid official in the municipal government of Little Rock Arkansas, making 260,000 a year running the airport. No criminal background history, no nothing. And he’s dead at a pre-dawn raid when it sure looks like you could have served this search warrant when he wasn’t there,” Rep. Jim Jordan (R-Ohio) snapped at Dettelbach.
Here’s a thought: Malinowski’s death at the hands of ATF agents is getting wide notice because he was a prominent, prosperous man. What about the people without resources and connections who get raided, set up for sleazy busts, or otherwise abused based on the mood of agents interpreting conveniently vague federal rules in whatever way suits their prejudicesrules that are impossible to reconcile with individual rights and the plain language of the Second Amendment.
Despite Malinowski’s prominence, his brutal death at the hands of an ATF agent looks like it will go unpunished. Unfortunately, the agent who killed him won’t be the first one who got away with murder.
