By Robert Hausman
In two recent actions involving the industry’s regulator, the Bureau of Alcohol, Tobacco & Firearms (ATF), a retailer seeking to counter a government demand that he turn over his firearms transaction records has won the first round in a court battle. In the second case, the maker of the Maadi-Griffin .50 caliber rifle kit series has been raided and arrested by ATF.
In the first matter, Sanford Abrams, president and owner of Valley Gun of Baltimore, Maryland, recently brought suit against the ATF in response to the agency’s demand that he turn over a good portion of his firearms transaction records for inclusion in a government database-and won. The action was the result of ATF’s new “get tough” policy involving dealers deemed “unresponsive” to firearm trace requests.
The issue evolved from a U.S. Treasury Department report released last February noting a small number of firearms dealers account for a majority of crime guns traced to active dealers. The report, Commerce in Firearms in the United States, found 1.2 percent of current dealers (1,020 dealers) account for 57 percent of crime gun traces to active dealers.
Additionally, the report noted not all dealers have been responsive to ATF trace requests, although federally-licensed dealers are required to respond to trace information requests within 24 hours [18 U.S.C. 923 (g) (7)]. In 1999, about 50 retail gun dealers either failed entirely to respond to an ATF trace request, did not respond within the required 24 hours three or more times, or wrongly denied having information that they in fact had. As a remedy, ATF announced dealers who fail to cooperate with trace requests will be required to send all their firearms records to ATF.
Valley Gun was determined to be one such “uncooperative” FFL-holder by ATF, since the retailer reportedly failed to respond to trace requests within 24 hours on three or more occasions in 1999. ATF sent a letter to Valley Gun demanding completion of a Form 4483 within 30 days detailing all the firearms the retailer sold in the last three years along with a list of the names and addresses of the purchasers. Additionally, ATF demanded Valley Gun submit additional Form 4483’s on a monthly basis “until advised otherwise.”
ATF indicated it intended to maintain the documents, submitted by Valley Gun, at its National Tracing Center and enter, on an electronic database, certain of the information. When the retailer was determined to no longer warrant treatment as “uncooperative,” the hard copies of its submitted documents would be returned or destroyed; however, the information placed on the ATF electronic database would be retained.
In response, Valley Gun, filed suit in U.S. District Court seeking relief from ATF’s demand letter. The action, brought under the Firearms Owners Protection Act (FOPA) sought to prevent ATF from allegedly unlawfully requiring firearm transaction records be recorded or transferred to a federal facility and thus establishing a system of firearms registration. The case was tried before the court without a jury. The standard of review the court used in judging the merits of the action was the Administrative Procedure Act, which allows a court to review and set aside agency actions that are, “in excess of statutory jurisdiction, authority or limitations, or short of statutory right” [5 U.S.C. 706(2) (C)].
Thus, the court found the case required resolution of a conflict between two provisions of the Congressionally-enacted 1986 FOPA in relation to ATF’s demand letter. The first, Section 923 (g) (5) provides dealers must comply with letters issued by ATF requiring submission of “all record information required to be kept” by FFL- holders. Second, Section 926 (a) provides that no rule or regulation prescribed after the enactment of the FOPA may require that any portions of the contents of records that dealers are required to maintain be recorded at a government facility.
In its opinion, the court found that prior to the enactment of the FOPA such ATF-issued demand letters were used by the agency to collect statistical information on the industry as a whole, not for obtaining data on gun transactions from dealers for inclusion in a government database.
“There is no doubt,” the court wrote, “ATF issued the demand letter with the intent to foster the performance of an important law enforcement function. There is no doubt that ATF’s having on-site pertinent records of an ‘uncooperative’ FFL could speed firearms tracing. Nevertheless… although the demand letter program may well be beneficial to ATF in its efforts to track firearm dispositions, the program violates Section 926 (a).”
The court further found that the government “exaggerated” when contending that the application of Section 926 (a) to the demand letter would eviscerate ATF’s ability to enforce firearms laws. Since, ATF retains the authority to inspect records on the premises of licensees to ensure compliance with record-keeping requirements.
“If Valley Gun,” the court noted, “was derelict in its compliance with its 24-hour response duty, ATF could have…taken steps to impose appropriate sanctions, including, perhaps potential license revocation. ATF cannot, however, punish Valley Gun by imposing a requirement that violates Section 926 (a) of the FOPA.”
In conclusion, the court enjoined ATF from enforcing its demand letter to Valley Gun.
However, the matter is far from over. Abrams reports the government has notified the court of its intention to file an appeal of the U.S. District Court decision. The outcome will be reported in a future issue of SAR. Stay tuned.
The maker of .50 caliber Browning Machine Gun chambered Maadi-Griffin rifle kits, Robert Stewart of Mesa, Arizona, was arrested recently as being a felon in possession of firearms. Police reportedly found some unregistered submachine guns in Stewart’s possession. He has also been precluded from continued manufacture and sale of the Maadi-Griffin rifle kits.
The ATF has obtained a list of the names and addresses of the over 3000 people who have purchased the kits over the past decade. ATF contends the receiver furnished with the kits is a firearm as defined under the Gun Control Act.
The kit requires some machining before it can be assembled into a working rifle. The furnished unfinished receiver requires milling and the kits have been sold without serial numbers as Stewart believed they would not be classified as firearms. Other Maadi-Griffin .50 caliber guns with finished receivers and serial numbers were manufactured at another location away from Stewart’s home in a federally-licensed facility.
In 1994, Stewart was reported as convicted in a Utah federal court for illegal possession of a machine gun. Although he was indicted in May 1993 for possessing and transferring five full-auto Sten guns, Stewart pled guilty to one count of possession. Because of his guilty plea, Stewart cannot legally possess any firearms.
In the latest action, ATF agents raiding Stewart’s home said they found 38 firearms, including six submachine guns. The purpose of the search warrant issued for the raid was to seize evidence of “engaging in the business of manufacturing and dealing in firearms without a license” and “felon shipping/possessing a firearm affecting interstate commerce.”
Stewart reportedly had been contacted by ATF some time before the raid and advised the receiver he furnished with his kits could be readily converted into a firearm. Nonetheless, Stewart continued to offer the kits. A kit purchased by an ATF undercover agent was examined by the agency’s Firearms Technology Branch. A determination was made that the kit could be readily converted to expel a projectile by action of an explosive and thus met the definition of a firearm under federal law.
ATF reported the required metal cuts on the receiver took about 35 minutes using a Dremel hand grinder and the rifle was then assembled and test-fired with a blank round. Stewart had advertised the completion of his kit requires the use of a 36-inch lathe, milling machine and welder.
ATF’s Gun Examiner Academy
In other news, ATF’s new National Firearms Examiner Academy has graduated its first class of eight firearms examiners. The graduates, who will be expected to provide court testimony in the field of firearms examination and toolmark identification, work for state and local law enforcement agencies.
ATF, in cooperation with the Association of Firearms and Toolmark Examiners (AFTE), developed the academy to increase the number of experts in the field, and to set nationally accepted standards to coincide with the establishment of the National Integrated Ballistics Information Network (NIBIN). The network is a high-tech computer system that compares high-resolution, three-dimensional images of spent bullets and casings which bear imprints and markings uniquely characteristic of the firearm from which they were fired.
Current plans call for every federal judicial district in the country to be included in the network, which will link firearms and ballistic evidence from throughout the nation in the same database, by 2002.
The year-long academy program includes training in firearms and ballistics identification, serial number restoration, toolmark identification, shooting scene reconstruction, as well as gunshot residue and ballistic trajectory analysis. The curriculum consists of independent study, classroom instruction, months of on-the-job training, the research and presentation of a thesis paper, and moot court exercises.
Graduates of the first class of the National Firearms Examiners Academy are from the Albuquerque, New Mexico Police Department, Harris County Texas Sheriff’s Dept., Hennepin County Minnesota Sheriff’s Dept., Houston Police Dept., Los Angeles County Police and Sheriff’s Dept’s., Miami-Dade Police Dept., and the Michigan State Police.
The ATF and the Federal Bureau of Investigation (FBI) entered into an agreement in May 1997, which created the National Integrated Ballistics Information Network (NIBIN) Board. It is composed of an ATF and a FBI representative and a state/local rep. The Board’s goal is to unify federal efforts to deploy ballistics technology.
The ATF and FBI have now announced the unification of previously separate automated ballistic technology programs. The two agencies are combining ATF’s Integrated Ballistics Information System (IBIS) and the FBI’s DRUGFIRE system to create the NIBIN.
Like fingerprints, IBIS and DRUGFIRE, maintain a database of cartridge cases and bullet images. A computer can rapidly compare the images of this database with evidence from a crime scene to identify images that may match. The two systems were introduced in 1993 to help crime laboratories link gun-related crimes. Combined, there are more than 800,000 images in the system. Collectively, they have produced more than 8,000 matches or “cold hits” in over 16,000 cases. Cold hits are evidence matches made by the computer that would not have been matched in any other way.
The ATF will have overall responsibility for all current and future system sites and the FBI will establish and maintain a high-speed, secure communication network. This single, unified system, combined with a nationwide secure communication network, forms the backbone of a system eventually capable of identifying the individual fingerprint left by virtually every gun after it has been used in a violent crime. Conceivably, the system can also be used as the basis for a national firearms ballistics registration system of all firearms.
In a personnel note, Patrick D. Hynes, formerly division director/special agent in charge of ATF’s Washington Field Division, has been named deputy director of the agency. In his new position, Hynes is working directly with agency director, Bradley J. Buckles.
In the new product arena, Burris has upgraded its Fullfield IITM scope line with a 3x-9x-40mm model with a Ballistic PlexTM reticle to accommodate the potential of long range rifles. The reticle contains small ballistic lines on the lower vertical crosshair that coincide with bullet drop from 100 to 500 yards. In use, the scope is sighted in at 100 or 200 yards while set for the highest magnification. The shooter determines the range to a more distant target, puts the corresponding ballistic line on the target and fires.
|This article first appeared in Small Arms Review V4N2 (November 2000)