B.A.T.F. Under Fire!

By Eric M. Larson

Congress Orders the First-Ever Independent Audit of the National Firearms Registration and Transfer Record

In early October 1997, the House Committee on Government Reform and Oversight ordered the Treasury Department Inspector General (IG) to independently audit the National Firearms Registration and Transfer Record (NFRTR). This is the first time since 1934 that any entity outside of the Bureau of Alcohol, Tobacco and Firearms (BATF), or its predecessors, has had access to these records, or that anyone has audited the firearms registration practices of BATF. In short, the credibility of the BATF is now being questioned by investigators who may invoke criminal penalties against specific BATF employees and agents.

This historic audit is occurring because of my research into BATF’s administration of the National Firearms Act (NFA) of 1934, and involves mismanagement, misconduct and criminal wrongdoing. As some readers of the Small Arms Review may already know, I testified about these problems on April 8, 1997, before the House Subcommittee on Treasury, Postal Service and General Government Appropriations, which funds the BATF. My testimony appears in the published hearing record, which may be obtained for $20 from the U.S. Government Printing Office, Congressional Sales Office, Washington, D.C. 20402 (202) 512-1808; specify Stock No. 552-070-20810-1. Further information about (and a copy of) my 1997 testimony and the current IG investigation may be found on the Internet at the following address: http://www.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/index.html

Testimony Before the Congress

Before discussing how the audit came about, I’d like to first review some of the major things I documented in my testimony. I’ve not listed everything but there’s enough to get a pretty good picture.

Right off the bat, I found evidence that the BATF has seriously mismanaged the NFRTR. In an unpublished 1981 internal report, BATF stated that many firearms at that time were registered to persons who would then have been 112 years old and that BATF knew they were dead! BATF’s most recent data show that of 14,259 firearms registered from 1934-39, 11,175 (78 percent) are still owned by the same person or organization. Of 58,904 firearms registered during the 1968 amnesty period, 50,314 (85 percent) are still owned by the same people who registered them that year. What does this say about BATF’s ability to sensibly administer a law regarding firearms the Government believes are dangerous?

The implications of this mismanagement are mind-boggling. Think about the possibility of the BATF conducting house-to-house searches to locate machineguns that are registered to dead people. The BATF is well-known for overreacting to and viciously exacerbating situations that might well have been resolved peacefully, and without the unnecessary loss of human lives. Consequently, it appears to me as though there’s an excellent chance that, if BATF is allowed undisciplined discretion, somebody is going to get shot and maybe killed, in a house-to-house-search situation. It seems like a realistic possibility to me, because of the way some people cope with death. Specifically, while some people can’t wait for the old boy to kick off so they can grab his guns, tools, or whatever, there’s also a significant number of people who don’t go through a deceased person’s things for many years, out of reverence and respect for that person. In my judgement, at least some of the people involved don’t know what may be sitting in their attics, and would greatly resent a ham-handed approach by federal law enforcement officers who knowingly allowed such registrations to continue for many years and then showed up on their front porches with search warrants and masked SWAT teams. It seems to me like this is a true public-relations disaster for the BATF, and calls the competence of the Government into question at a time that President Clinton is raising the prospect of further Government intervention in the gun control area.

Having said this, however, I’ve heard many, many stories about an apparently tolerant side of the BATF regarding the transfer of NFA firearms registered to deceased persons. In short, while my criticisms of the BATF are harsh in some areas, I find difficultly in saying it has been unreasonable in this one. In the vast, overwhelming majority of the cases I’ve heard about, the BATF has bent over backwards to facilitate the transfer of NFA firearms to their lawful heirs. The only instances where there have been problems (i.e, an involuntary forfeiture of the firearm) is when the firearm has been transferred or sold out of the line of legal succession. Apparently, the firearm can only be transferred to a lawful heir; once it gets into the hands of a family friend, for example, it becomes contraband. This is an area that needs much thought, and some thoughtful reforms to prevent the continued registration to NFA firearms to persons who are deceased.

Leaving aside, though, for a moment, the issue of machineguns that are registered to dead people, think about something else not quite so dramatic, but with equally serious legal implications. Namely, there are a significant number of “Any Other Weapon” (AOW) firearms that many people, and particularly people who don’t know much of anything about guns, regard as obsolete and of interest only to a collector. As some in the gun collecting community are aware, my research on some of these AOWs is featured in the Standard Catalog of Firearms, Blue Book of Gun Values, and Official Price Guide to Antique and Modern Firearms.

Since I list my mailing address and telephone number along with my research, I’ve gotten a number of calls over the years. What some people reported regarding their discovery of one of these guns (usually a Game Getter or Handy-Gun) in the estate of a parent or other relative was disturbing. Upon attempting to transfer the ownership, BATF alleged the firearm was not registered rendering it illegal contraband that nobody can own. Yet, after scouring their premises, some people said they found the registration. BATF then allegedly declared a mistake had been made, and processed the transfer. BATF will not allow any firearm, even a rare collector’s item, to be voluntarily re-registered.

Some of these folks have also quite innocently, and unwittingly, broken the law by giving the AOW away to a close friend, selling it, or allowing it to be carried away from the house by a lawful heir or other relative. Any violation of the NFA is a felony carrying a 10-year, $10,000 fine penalty upon conviction.

Significantly, a federal court has deemed the NFRTR data too unreliable to uphold convictions for non-registration of NFA firearms. Specifically, in 1996, a federal court dismissed five convictions for possession of unregistered NFA firearms on appeal, after Gary N. Schaibel (the custodian of the NFRTR) testified that BATF employees have destroyed registration documents rather than work on them (see United States vs. John Daniel LeaSure, Criminal No. 4:95CR54, Newport News, Virginia, May 21, 1996). The U.S. attorney who prosecuted the case decided not to cross-examine Mr. Schaible, and BATF has not appealed the decision.

I found independent evidence that the BATF may be adding firearms to the NFRTR which are registered, but for which it lost or destroyed the registrations. In analyzing data from the National Firearms Registration and Transfer Record (NFRTR), I found that during 1992 to 1996, the BATF may have re-registered at least 119 (and possibly more) NFA firearms for which it lost the original registrations. This analysis is probably a considerable understatement for at least two reasons: (a) my analyses were limited only to Form 1 for the period from 1934 to 1971, and for Form 4467; and (2) if the BATF has removed some firearms from the NFRTR data base because BATF removed them from the NFA as collector’s items, my estimate of 119 could be an underestimate by that amount. For example, if the BATF removed 200 NFA firearms from the NFRTR during 1992 to 1996, my estimate of 119 would have to be increased to 319 (119 + 200 = 319).

I believe that some BATF officials may have perjured themselves regarding the accuracy of the NFRTR, because they have routinely done so in other letters to me. As some gun enthusiasts are aware, I have tried without success to get BATF to remove the smooth bore H&R Handy-Gun from the NFA as a collector’s item. Consider that in a Letter Ruling dated July 7, 1993, Terry L. Cates, Chief of ATF’s Firearms and Explosives Division, stated that “an administrative ruling removing [the H&R Handy-Gun, a smooth bore pistol] from the NFA would, in effect, be removing by ruling that which Congress specifically covered by statute.” Yet, according to the 1990 Firearms Curios & Relics List, ATF has already used the 1968 Act to remove (by administrative ruling) smooth bore pistols including semi-automatic models and revolvers ranging from .22 to .45 caliber from the NFA. Under the NFA statute at Title 26, U.S.C., 5861(l) and 5871, it is a felony for any person to knowingly make or cause the making of a false entry on any document required to be prepared as a result of administering the NFA. It is difficult to believe that Mr. Cates would have been unaware of these removals; his letter proves that he has either committed perjury or is grossly incompetent.

How many other people have received blatantly illegal Letter Rulings such as this one? A lot, I think. But few people have had the opportunity to place them in a Congressional hearing, as I have.

Complaint to Treasury Dept. Inspector General

On May 10, 1997, I wrote to the Treasury Department Inspector General (IG) and requested that the IG consider conducting an independent forensic audit of the NFRTR. I listed five specific allegations, including some of those discussed above.

On June 5, the IG referred my complaint to BATF. On June 15, I complained to the IG’s boss the Congress that the IG simply wasn’t doing its job, and ATF was likely to simply exonerate itself. Meanwhile, BATF did an internal investigation, which it completed on August 14, 1997. In response to my Freedom of Information Act (FOIA) request for a copy of the report, however, the BATF stated in a letter to me dated October 8, 1997, that the report could not be released. The reason, BATF stated, is that the report was still in the “deliberative process,” but should be available in another 4 to 6 weeks. On November 18, 1997, I filed another FOIA request for a copy of the report; however, as of early December 1997, neither BATF nor the Treasury Department has released the report.

I didn’t complain about the IG to the same committee that I testified before (an Appropriations committee), because it lacks original jurisdiction. The Committee on Government Reform and Oversight created the Treasury Department IG, in part, to ensure “employee and program integrity through prevention and detection of criminal activity, unethical conduct, and program fraud and abuse.” In declining to investigate the BATF, the IG wasn’t doing its job.

In early October 1997, the House Committee on Government Reform and Oversight ordered the IG to (1) independently audit BATF’s firearm registration practices, and (2) evaluate BATF’s internal study of my complaint. On October 22, I met with three Certified Fraud Examiners from the IG’s Chicago field office. The investigation was apparently assigned to the Chicago office to try and minimize political influence from Washington.

In my judgement, the Committee ordered the audit for a law enforcement purpose, rather than as a pure “gun control” issue. The reason is that I presented credible, documented evidence of criminal wrongdoing by a federal law enforcement agency, and the oversight agency the Congress established to detect and punish such abuses had apparently decided to allow a cover-up.

A Complaint and Attempted Cover-up

A number of people have contacted me about this investigation, but in some respects I can offer them little information. The main reason is not surprising: the Treasury Department IG’s customer is the House Committee on Government Reform and Oversight, not Eric M. Larson. Consequently (and, probably, quite properly), it would be inappropriate for the IG’s investigators to share any “work in progress” with me. There are good reasons for doing this; mainly, any investigation of this sensitivity must establish the validity and reliability of all evidence before coming to a conclusion. It would certainly be improper to release raw files that may contain unsubstantiated allegations, or allegations which cannot be proven beyond a reasonable legal doubt.

While I’m naturally suspicious as to whether the IG investigators’ political masters will allow them to go where the evidence leads, and conduct a wide-ranging investigation, there are significant differences between the way it and the BATF have approached my allegations.

My complaint was referred to the BATF on June 9, 1997, and assigned to Special Agent Jeff Groh, of BATF’s Office of Inspection in Falls Church, Virginia. Mr. Groh called me on July 31 to arrange a meeting, and we met at a restaurant in downtown Washington, D.C., on Friday, August 1, 1997. The reason for the meeting was to provide me an opportunity to add to or clarify my complaint. Mr. Groh stated that he was nearly done with his investigation he’d already talked with everybody, but had one last bit of paperwork to run down, and that he planned to finish his report by the end of August. He said that BATF had already concluded that two reforms I suggested (removing all pre-1934 AOWs from the NFA as collector’s items or establishing a limited amnesty period to allow persons who had lost their registrations to re-register their firearms) must be rejected, but gave no specific reason(s). On August 14, 1997, Mr. Groh called me, said that he had submitted his report to the Treasury Department, and that I could obtain a copy by an FOIA request. As I write these words on December 2, 1997, I still don’t have a copy of the report.

The Treasury Department IG certainly has it; the investigators told me, during our October 22, 1997, meeting, that they had already read it and couldn’t give me a copy. In contrast to the BATF’s handling of my complaint, the IG investigators and I spent about 2 hours reviewing my allegations in detail. It would seem logical for any investigation to bring in viewpoints of the complainant early on, and that’s what they did. I don’t know the exact timetable for their investigation, but the lead investigator (Ms. Carol Bergen, of the Chicago office) said that it would not take as long as a year.

It seems to me that if there was ever a good reason for an amnesty period, even a limited one, that my testimony has provided the legal foundation. So if readers of this article know of credible instances where the BATF has lost or destroyed an NFA firearm registration, and then added the registered firearm back into the NFRTR after a lawful owner produced his copy of the registration, now is the time to step forward. If you wait until the investigation is closed, it seems very unlikely to me that another would be opened.

An amnesty would be a fair way to handle the problems I’ve pointed out, to the extent the firearms involved should be registered. Machineguns, no doubt, should be registered (a notion that the National Rifle Association supported even in 1934), but I just don’t believe that firearms like Marble’s Game Getter Gun and the smooth bore H&R Handy-Gun are likely to be used by criminals. It would be, in a practical sense, just about impossible to differentiate between people who unwittingly gave away or sold a Game Getter or Handy-Gun, or some other pre-1934 AOW (like an animal trap gun), versus those who knew good and well that possessing unregistered ones is illegal. And what about people who later found out they’d inherited or been given an illegal firearm?

Past history suggests that the BATF would intimidate people through an “investigation” process to register the firearm; I believe the expense involved would not be worth it, and would not be effective because too many people fear the BATF. I think it is a much better idea to have a well-publicized, unconditional amnesty and clear up the problems that I have documented, and not allow the BATF to interfere with people in ways that unjustly intimidate them into not complying with the law.

In fact, I think some of the trouble with militia groups has been caused by the BATF itself; when conservative people see the BATF not following the law, some of them respond by arming themselves and rattling sabers. The only way to begin to move away from those positions, is for the BATF to follow the law.

People also need to get real. We’re not in a situation of “Will there be gun control?”; we’re in a situation where there’s definitely going to be gun control. We, the people, have some say in how that comes off, and we need to make intelligent choices. I believe that gun control is best handled as a local or perhaps state issue. People who live in the wide open spaces out West are in different situations than dense, urban environments; and the laws ought to reflect those local differences, as decided upon by the people who live there.

Finally, in a letter dated October 27, 1997, Senator Orrin G. Hatch told me: “I am committed to pursuing credible allegations through exhaustive and fair hearings in the Judiciary Committee. You can be sure that I will do everything in my power as Chairman of the Senate Judiciary Committee to impress upon federal law enforcement officials that they must implement policies that prevent abuse and punish those who overstep their authority.”

Where Do We Go From Here?

A number of people have asked me how all this is going to shake out. My gut feeling is that at least several jigs are up, and narrowing down on them is just a matter of time. For one, it is not believable to think that the Congress is going to allow the continuance of registrations of machineguns to a bunch of people who are dead; that’s just not sound public policy, and I find it difficult to believe anybody would disagree with that.

For the other, I’ve got other sound reasons to think that I’ve backed the BATF into a corner. The reason is that I sent BATF a draft copy of my testimony on February 9, 1997, and another revision on March 9th. Each time I invited the BATF (specifically, Nereida W. Levine, Chief of the NFA Branch) to comment upon any errors of fact, interpretation, or omission that I may have made. Each time, BATF declined to comment. I also figure that if BATF’s internal report found nothing wrong, there would be no reason not to release it quickly; however, as we have seen, the report is apparently being tightly held in-house.

Some people have said, in effect: “You complained on June 15, 1997, but the Congress didn’t do anything until October; that’s not very fast.” Well, as one who works for the Government and knows how parts of it work, I’d disagree: I’d say that the response was astonishingly fast, if you take into account the zillion and one other things on the Congressional plate. I also would say that anyone who knows how Washington works, would agree that a 3«-month turnaround is quick. Consider that my complaint, and the evidence I used, had to be independently evaluated by somebody on the House Committee on Government Reform and Oversight. Anybody who has read my testimony, even somebody mildly familiar with the NFA and NFRTR, could find it slow going for a while because of the depth and detail of my research. Consider, then, somebody unfamiliar with the arcane world of the NFA, and how long it would take them to evaluate it along with several other reports or projects that were equally daunting (read a Congressional appropriation or other hearing sometime, in its entirety, and I believe you’ll gain a new respect for the Congress). So, in short, I think the system is working as well as it can; and while the wheels and processes of justice might seem to drag on, I honestly believe that this whole matter is “in the hopper” and will get the attention that it deserves.

How this investigation turns out on the Treasury Department end will be some function of the evidence that can be found and/or is made available; the extent to which the investigation is possibly politicized by political appointees and/or career bureaucrats at the Treasury Department; and the abilities and determinations of the three Certified Fraud Examiners assigned to this case.

On the Congressional end, I’ve been in contact with some staff members of the House Committee on Government Reform and Oversight, and been told that its Chairman, Dan Burton, is highly unlikely to tolerate criminal wrongdoing (or a cover-up) by the BATF. Thus, before all this is over, it seems probable that the Committee will view the Busey tape, along with whatever other evidence it deems relevant. I’m going to be meeting with staff of the Committee sometime in December or early January, and may be able to pass on additional information later.

Senator Orrin G. Hatch, Chairman, Senate Committee on the Judicary told me in a letter dated October 27, 1997:

I am aware of the alleged violations committed by BATF agents. . . . I am currently reviewing the feasibility of three specific suggestions for the future of the BATF: first, congress could abolish the BATF and transfer its functions to the FBI; second, congress could dissolve the BATF while assigning its enforcement functions to the Secret Service and its regulatory functions to the Customs Service; and third, congress could put the BATF under the authority of the Department of Justice, allowing that Department to review its policies and procedures.

I believe that the readers of Small Arms Review, and others, may well affect this investigation, and its outcome(s), by (1) stepping forward and providing credible evidence of wrongdoing by the BATF, to the extent it may have occurred; and (2) supporting this investigation. Support can be accomplished by asking your local Congressman and/or Senator to contact Chairman Burton at the House Committee on Government Reform and Oversight, 2157 Rayburn House Office Building, Washington, D.C. 20515, telephone (202) 225-5074; FAX (202) 225-3974.

Finally, those of you who are sitting on your buckets and not helping: I’ve done this for the hobby, for the honest citizens sitting out in rural America who don’t have the opportunity to testify before the Congress, and delve into these matters in the prolonged ways that I have, and because it is the right thing to do. When I was in her Intergovernmental Relations class at the University of Texas some years ago, the late, great Barbara Jordan told us: “Government by the people is not a spectator sport.” Enough said.