8/96 BATF Still Flexing Its Muscle
Once inside, instead of turning a handle to open the door to the kitchen, they kicked it in, breaking the frame. The agents were yelling “ATF,” but no one in the family was sure what that meant.
“There were no guns in the home and never had been,” reported The Washington Times this past May. “The family who lives there was innocent. ATF officials admit raiding the wrong house.”
The Mueller family may never have known there was such an agency as the Bureau of Alcohol, Tobacco and Firearms. But after that fateful day, the Muellers came face to face with the horror that many gun owners have experienced over the years.
Indeed, after tearing apart the house, BATF agents offered no apology and did nothing to put the house back in order, the Muellers said.
GOA efforts to cut BATF
The BATF remains one of the most controversial law enforcement agencies in the country. Yet despite the turmoil surrounding the Bureau, Congress refuses to make any significant cuts in its budget. GOA is working with certain Congressmen to remedy this situation.
Rep. Helen Chenoweth (R-ID) introduced an amendment to the agency’s appropriations bill last year to simply limit pay increases and bonuses for BATF agents. Her amendment failed miserably, even in a Republican Congress.
“Cutting the BATF is still one of my top priorities,” Chenoweth told The Gun Owners. “Several Congressmen realized they made a mistake last year when they voted to give the BATF a raise. We must continue trying to hold this agency accountable for its actions.”
Support for BATF in high places
Support for the BATF has come from high ranking legislators on both sides of the aisle. The House Subcommittee Chairman who controls the BATF purse strings, Rep. Jim Lightfoot (R-IA), absolutely stunned gun owners last year with his high praises for the BATF.
“Not being the jack-booted Gestapo, as they were described earlier, they [the BATF] are good, hard-working federal employees who have families, men and women with children, who are trying to make a living and do what they think is right,” Lightfoot said.
The praise for the BATF from Republicans was so thick that day that even anti-gun Rep. Barney Frank (D-MA) had to take a jab:
We have just heard virtually every one on the Republican side rise to speak in praise of the Bureau of Alcohol, Tobacco and Firearms, to defend the actions in Waco, to defend the actions in Idaho. . . . I want to say that I am pleased to welcome this spirit of constructiveness.
Of course, praise for the agency has not been limited to Republicans. At an appropriations meeting in June, Rep. Steny Hoyer (D-MD) stated that while the BATF is not popular with some groups, it enjoys “support by this member” and others on the other side of the aisle. Hoyer has also strongly opposed any dismantling or restructuring of the agency.
Certainly, there are people in the agency that are decent and honest. But when an agency as a whole becomes famous for its abuses and excesses, Congress must step in and grab the reins. It must neither neglect its oversight function nor neglect to keep such an agency accountable.
A long train of abuses
The BATF has worked hard over the years to earn its reputation. For example, just this year GOA obtained a transcript of a high ranking BATF official who admitted that its agents habitually lie in court when testifying against machinegun owners. This admission has already resulted in at least one court ruling against the BATF. (See story below.)
In 1995, it was the racist “Roundup” in Tennessee that found several BATF agents in attendance. Apparently, agency officials had known for years about the racist overtones at the Roundup and had just ignored this fact.
In 1994, the BATF sent shock waves through the gun community when they admitted to computerizing 60 million gun dealer records. (They later stated this was O.K. because the records belonged to former gun dealers.)
That same year (1994) also saw BATF agents descend upon Harry and Theresa Lamplugh in Pennsylvania and completely tear apart their house. After killing several cats, ransacking the home and keeping machineguns in the Lamplugh’s faces for six hours, the BATF agents finally left. But not without first destroying their lives.
[The Gun Owners first reported on the Lamplughs in December of 1994. The BATF’s “case” against the Lamplughs is currently pending; Gun Owners Foundation is assisting in their defense.]
Prior to the Lamplugh raid, of course, there was the infamous BATF raid at Waco (1993) and the entrapment of Randy Weaver in Idaho (1992) which eventually led to the unjustified shooting of his wife and child.
Senate documents BATF abuses
The cloud surrounding the agency is by no means a recent phenomenon. Even as far back as 1982, the Senate Subcommittee on the Constitution found that BATF agents regularly:
* “Trampled upon the Second Amendment” by chilling the exercise of the right to keep and bear arms by law-abiding citizens;
* “Offended the Fourth Amendment” by unreasonably searching and seizing private property; and
* “Ignored the Fifth Amendment” by taking private property without just compensation and by entrapping honest citizens without regard for the right to due process of law.
The Subcommittee report also noted that about 75 percent of BATF gun prosecutions were aimed at ordinary citizens who had “neither criminal intent nor knowledge,” but were “enticed by agents” into unknowing technical violations.
These and other excesses led Rep. John Dingell (D-MI) in 1983 to call the BATF “a jack-booted group of fascists who are perhaps as large a danger to American society as I could pick today.”
And again last year, Rep. Dingell railed against the BATF on the House floor during the battle over H.R. 666 — legislation that would encourage the harassment of law-abiding gun owners by removing the incentives for officers to secure a warrant. During the February 1995 debate over this bill, Dingell said:
The consequences of the behavior of the BATF . . . is that they are not trusted. They are detested, and I have described them properly as jackbooted American fascists. They have shown no concern over the rights of ordinary citizens or their property. They intrude without the slightest regard or concern.
BATF v. BATF
Lest anyone think that these criticisms have merely come from pro-gun advocates who are critical of law enforcement abuses, one should realize that severe criticism has even come from within the agency itself.
CBS’ 60 Minutes ran a feature story on the embattled agency in January of 1993. During the program, BATF agent Bob Hoffman stunned interviewer Mike Wallace by saying that “the people I put in jail have more honor than the top administration in this organization.”
BATF agent Lou Tomasello expressed similar sentiments when he told Wallace that,
I took an oath. And the thing that I find totally abhorrent and disgusting is these higher-level people took that same oath and they violate the basic principles and tenets of the Constitution and the laws and simple ethics and morality.
Clinton seeking BATF budget increase
Despite all this, the Clinton administration is seeking a huge ($28 million) increase for the BATF next year. The House Appropriations Committee has softened this request a bit, but some in Congress, like Rep. Chenoweth, want to make deep cuts in the agency.
In late June, the House Appropriations Committee passed the BATF budget with a slight raise. Another embattled agency, the IRS, is receiving a ten percent pay cut from the Appropriations Committee. The BATF is NOT receiving a cut. One wonders why there is such a discrepancy.
Perhaps this question will be answered when the full House takes up the BATF funding.
Institutional Perjury at the BATF
ON OCTOBER 18,1995, Thomas A. Busey, then Chief of the National Firearms Act Branch of the BATF (the official custodian of the National Firearms Registration and Transfer Record), made a videotaped training presentation to BATF headquarters personnel during a weekly “Roll Call” training session. “Roll Call” training is weekly or periodic in-house training for BATF officials-a routine show-and-tell whereby bureaucrats learn about each other’s duties and functions.
Busey’s presentation was anything but normal, routine or customary. In describing the NFR&TR, the official national registry of registered Title II firearms (machine guns, short-barrelled rifles and shotguns, destructive devices, etc.), Busey made the startling revelation that officials under his supervision routinely perjure themselves when testifying in court about the accuracy of the NFR&TR.
Every prosecution and forfeiture action brought by the United States and involving an allegedly unregistered NFA firearm requires testimony under oath by a duly authorized custodian of the NFR&TR that after a diligent search of the official records of which he/she is custodian, no record of the registration of the firearm in question was found (or was found but showed a different registrant than the person being prosecuted). An alternative method of proving the same facts is by admission into evidence of a certified copy under official Treasury Department seal of a similar written declaration by the custodian. This is a critical element of the government’s proof and, according to Busey, occurred 880 times in 1995 alone (presumably Fiscal Year 1995).
Busey began his Roll Call presentation by acknowledging “Our first and main responsibility is to make accurate entries and to maintain accuracy of the NFRTR…… Moments later Busey makes the astonishing statement that “. . . when we testify in court, we testify that the data base is 100 percent accurate. Mat’s what we testify to, and we will always testify to that. As you probably well know, that may not be 100 percent true.”
Busey then goes on for several minutes describing the types of errors which creep into the NFR&TR and then repeats his damning admission: “So the information on the 728,000 weapons that are in the data base has to be 100 percent accurate. Like I told you before, we testify in court and, of course, our certifications testify to that, too, when we’re not physically there to testify, that we are 100 percent accurate.” How bad was the error rate in the NFR&TR? Busey again:
“. . , when I first came in a year ago, our error rate was between 49 and 50 percent, so you can imagine what the accuracy of the NFRTR could be, if your error rate’s 49 to 50 percent.”
Does anyone recall the phrase “Hey, close enough for government work”? Consider this matter in its starkest terms: A senior BATF official lecturing other senior BATF officials at BATF national headquarters in Washington, DC, declares openly and without apparent embarrassment or hesitation that BATF officers testifying under oath in federal (and state) courts have routinely perjured themselves about the accuracy of official government records in order to send gun-owning citizens to prison and/or deprive them of their property. just who then is the criminal in these cases?
All this was too brazen for even some BATF officials to stomach. Acting on tips from several BATF officials (there are honest men and women in government, even in BATF), the Greensboro, North Carolina, gun rights lawyer and former Department of justice prosecutor James H. Jeffries, III, promptly filed a Freedom of Information Act request precisely describing the Busey tape. The first reaction was predictable. After reviewing the damning tape, BATF officials discussed whether they could get away with destroying it. Wiser heads prevailed, however. Obviously any outsider who knew of the tape would probably also know of its destruction. (Or, perhaps all the official shredders were on loan to the White House.)
After much tooing and froing with a dismayed Department of justice, a transcript of the Busey tape was produced for Jeffries in February 1996. The Department of justice was dismayed because the Busey tape was clearly Brady material. Under the Supreme Court’s 1963 decision in Brady v. Maryland, 373 U.S. 83, the government is required in all criminal prosecutions to provide the defense, in advance of trial, with any evidence tending to show the defendant’s innocence. Failure to do so can result in dismissal of an indictment, reversal of a conviction, or other sanctions, Willful failure to produce Brady material can constitute contempt of court, professional misconduct, or even a crime.
Busey just tip of the iceberg
The Busey tape was clearly exculpatory and clearly implicated every National Firearms Act prosecution and forfeiture in living memory. Worse yet, Busey was only the tip of the iceberg. When the smoke had cleared, the Department of Justice learned that the NFR&TR inaccuracy problem had been the subject of internal BATF discussion since at least 1979. BATF’s files were replete with minutes of meetings, statistical studies, memoranda, correspondence, etc., admitting the problem. The only thing missing was any attempt to correct the problem, or to reveal it to anyone outside the agency.
The Justice Department has now commenced the painful chore of advising every NFA defendant in the country of the situation. It did this with a recent mass mailing by U.S. Attorneys to defense lawyers and defendants of relevant BATF documents, including the Busey transcript.
The direct consequences of this institutional perjury are just now beginning to occur. In Norfolk, Virginia, on May 21, United States District judge John A. MacKenzie, after reviewing the Busey transcript, promptly dismissed five counts of an indictment charging John D. LeaSure with possession of machine guns not registered to him. LeaSure, a Class 11 NFA manufacturer, had received BATF transfer approval for the five guns, but then decided to void the transfers and keep the guns. He promptly faxed the voided Form 3s to the NFA branch.
BATF subsequently raided LeaSure and charged him with illegally possessing guns which, according to the NFR&TR, were registered to someone else. The government ignored the fact that on the date LeaSure said he voided the transfers there was a 21-minute call on his toll records from his fax number to the NFA Branch’s fax number-at a time when he could have had no idea he would later be prosecuted for Continuing to possess the guns. Rather, the prosecution produced NFA Branch specialist Gary Schaible to testify as custodian of the NFR&TR that the government’s official records did not show any voided transfers and therefore LeaSure was in illegal possession of the guns.
In essence, Schaible was testifying that “We can’t find an official record and therefore the defendant is guilty.” What we now know is that Schaible should have testified that “We can’t find half our records-even when we know they’re there-and therefore we’re not sure if anyone is guilty.’
The government’s case was not aided when Schaible was forced to admit on cross-examination that two NFA Branch examiners were recently transferred because they had been caught shredding NFA registration documents in order to avoid having to work on them. Note that they were “transferred.” Not fired. Not prosecuted. Merely transferred. Just who IS the criminal in these cases!
It is too early to predict how many new trials, appeals and habeas corpus actions will result from this affair, Also of significance is the number of convicted felons presently under legal disabilities from flawed convictions and what effect the Busey disclosures will have on their situation.
The indirect consequences of BATF’s conduct will not be so readily apparent but are potentially devastating. All across the country Assistant United States Attorneys, United States District judges, and other federal and local law enforcement officials are going to learn what GOA and most defense lawyers and gun dealers have known for years and what the aftermath of Waco and Ruby Ridge starkly illustrated: BATF officers and agents lie, dissemble and cover up on an institutional basis. These are not aberrations; they are an institutional ethic, an organizational way of life. Just who IS the criminal in these cases?
Lawyers and defendants in NFA cases who have not received the “Busey” package from the United States Attorney should be making prompt demands-both for the package and for an explanation of why it was not produced in a timely fashion. Attorney Jim Jeffries, a GOA life member, has agreed to act as an informal clearing house for these matters. Those lawyers with questions, problems, or new information involving the Busey phenomenon, or its continuing aftermath, are invited to contact him at 910-282-6024.
A Matter of G(UN) Control
Is the threat of global, United Nations inspired gun control something that American citizens should be concerned about? Or is it nothing more than the machinations of a paranoid few who look for blue helmets under every rock and black helicopters behind every cloud?
The UN is enough of a threat that last October Representative Joe Scarborough (R-FL) introduced HR 2535, the “United Nations Withdrawal Act of 1995.” In a letter to fellow Congressmen, Scarborough wrote that “it is now clear that the United Nations no longer serves our national interests.” That raises the question, then, if the UN is not serving our interests, whose are they serving?
As reported in the June, 1994 issue of The Gun Owners, countries with severe gun control laws are seated at the same table as the US as part of the UN Disarmament Commission to discuss the worldwide “harmonization” of gun control laws.
But why should the United States be dealing with these gun grabbers at all? If American gun laws are melded with those of imperialist Japan or communist China, our gun laws will only get worse than they already are. Laws affecting this country must come from the Constitution and through our own Congress (which is enough of a problem), and certainly should not come from the dictates of Boutros-Boutros Gali and the UN.
Influence of Foreign Nations
It is not possible in a cursory article to detail the many driving forces behind global gun control. The purpose here is to simply point out how foreign countries, capitalizing on the anti-gun hysteria already present in this country, are seeking to force their failed gun control policies on America.
There are unusually two reasons why people want the US to adopt the gun control measures of other countries. First, the claim is that countries with stricter gun control have less crime and are therefore more safe. Second, many foreign countries blame guns from this country for their inability to deal with their own crime problems. Remarkably, Japan uses both arguments simultaneously.
Should the US be More Like Japan?
A common theory which echoes throughout the anti-gun community is as follows: Japan has a lower crime rate than America, Japan has stricter gun control than we do, therefore, more gun control will equal less crime for us. Now, the first two parts of this analysis are true, but is the conclusion accurate? According to well known Second Amendment scholar David Kopel, the answer is no, there are other reasons for Japan’s low crime rate.
Primarily, says Kopel in his definitive work on the subject, The Samurai, The Mountie, And The Cowboy, “it is the pervasive social controls of Japan that best explain the low crime rate.” In other words, in Japan criminals are more likely to get caught and expect when they are caught they will be punished severely. That is a far cry from America, where the average life sentence is less than 10 years.
When it comes to the violent crime it does have, Japan isn’t ready to take any responsibility. According to a global gun control plan put forth by Japan, their violence problem is the fault of guns smuggled into Japan from other countries.
Japan recently put forth a plan (Resolution 9) to the UN Commission on Crime Prevention. In this Resolution Japan asserts that the only way to control the illicit gun trade is through extensive world gun control. This includes the banning of private ownership of handguns and the registration of all other firearms.
Japan is not alone in blaming other countries for their gun violence problems. Another loud voice in the UN for worldwide gun control comes from the government of Columbia, which uses America as a scapegoat for much of its crime problems. According to one Colombian UN Diplomat “Columbia’s problem is that in the US you can legally buy and sell arms.” Of course in Columbia, the purchase of firearms is prohibited.
Now is it really fair to imply that the United States is making Columbia or Japan less safe? Hardly. It should be noted that in Columbia cocaine and heroine are also illegal, yet that relatively small country boasts the largest heroine and cocaine cartel in the world. And if sacrificing all civil liberties in the name of public safety is the answer to the crime problem, then Japan should be a much safer place than it is.
Still, through their seats on the UN Disarmament Commission, Columbia and Japan are working with countries such as Mexico, Taiwan, and Canada to force their anti-rights policies on America as well. Of course, while the Commission does not have the authority to make laws, it is called upon to make recommendation at various levels, including to our own Congress.
Say No To The UN
Since these and other countries are using the UN as a platform to push their global gun control agenda, it is unfathomable that the US Congress continues to fund UN operations. By adopting the gun control laws of other countries, America will be going down the road of authoritarianism controls.
As pointed out in a study by JPFO, every genocide that has occurred this century — from Ottoman Turkey in 1915-17 to Cambodia in 1975-79 — has been preceded by civilian disarmament. Our Constitution, not the UN Charter, is the greatest safeguard of our liberties.
The time has long passed that the US must withdraw from the UN. Representative Scarborough’s bill may prove to be one of the most important pieces of legislation affecting your gun rights. The United Nations Withdrawal Act should not be bottled up by this Congress. This bill needs to be debated on the floor of Congress and by the public in general. What is being done to us in the backrooms of the United Nations building must be brought to light and dealt with swiftly and decisively.
1. Lethal Laws: “Gun Control” Is The Key To Genocide is available through Gun Owners Foundation. Call 1-800-417-1486 for more information.
The following is a “Dear Colleague” letter
from Rep. Steve Stockman (R-TX):
Congress of the United States
House of Representatives
Washington, D.C. 20515-4309
July 8, 1996
Repeal the Brady Law — Cosponsor H.R.2470
On October 11, 1995, I introduced H.R.2470, the Second Amendment Reaffirmation Act of 1995. This legislation repeals the Brady Law and enacts a series of other changes to protect Second Amendment rights. I am writing to solicit your cosponsorship.
H.R.2470 recognizes what all of us already realize: The Brady Law has not made one step toward sending dangerous criminals to jail. The only thing it has accomplished is to interfere with the constitutional rights of law-abiding Americans.
Documented cases exist which show how several ordinary citizens who attempt to purchase handguns have become fatalities — or near fatalities — because of the “harassment period” imposed by waiting periods and background checks.
The law has had no impact on crime. Consider the following:
* 93% of criminal predators do not obtain their guns from a gun dealer;
* As stated by the General Accounting Office in January, “criminals can easily circumvent the [Brady] law by purchasing handguns on the secondary market or by having friends or spouses without a criminal record make the purchase from dealers;” * Over 50% of denials under the Brady Law are due to administrative mistakes, parking tickets, traffic violations, or reasons other than felony convictions;
* The law has only resulted in three incarcerations during the first year and a half;
* According to the GAO, “Proponents [of gun control] acknowledge that criminal records checks alone will not prevent felons from obtaining firearms.”
Most importantly, the fundamental reason for repealing the Brady Law is that it is a clear violation of the Second Amendment. This body has no authority under the Constitution to enact such legislation. Courts, however, have recognized the unconstitutionality of the Brady Law. Given that five out of six cases decided as of July, 1995, have ruled the Brady Law unconstitutional, and that the Supreme Court in U.S. v. Lopez (1995) struck down gun control legislation as a violation of the commerce clause, it is time to repeal this abridgment of our constitutional rights. H.R. 2470 would do just that.
I encourage you to become a cosponsor of H.R.2470. If you have any questions about this bill, please contact either myself or Tara Meeker of my staff at 5-6565.
GOA IN THE STATES
GOA conducted a vigorous candidate survey program before the May primaries this year, asking both challengers and incumbents to take a stand on statewide preemption of local gun control laws. Survey results were then distributed at gun shows by members of GOA and its state ally, Grass Roots North Carolina (GRNC).
The effort has paid off! Gun owners have taken the survey results and are truly putting the heat on their elected officials, bringing about effective changes in the legislature.
In the recent legislative session both houses passed H.B. 879, a preemption bill which will make firearms laws uniform statewide. ‘Me law will also strike down restrictive laws in Chapel Hill and Durham. GOA and GRNC members directed a barrage of faxes and postcards at the state senate. Their efforts played no small part in passage of this pro-gun legislation.
Many of the organizers of the grassroots effort participated in GOA’s one-day training seminar held last November in Raleigh. GOA plans to hold another seminar in the Tar Heel State sometime next year. Look for GOA’s general election survey results to see where your candidates stand on the issues.
In the gubernatorial primary, Robin Hayes of Concord defeated former Charlotte mayor Richard Vinroot for the GOP nomination. Hayes answered GOA’s candidate survey 100 percent in support of gun owners’ rights. Vinroot refused to respond to GOA’s survey. Vinroot also backed out of a promise to participate in the well-attended GRNC/GOA candidate forum at the Dixie Gun & Knife Show in Raleigh the Saturday before the primary.
* Action Item *
Call Robin Hayes and thank him for his strong stand: 704-795-1996.
Call Gov. Jim Hunt. Insist lie answer GOA’s survey in support of your gun rights: 919-733-4240; FAX 919-715-3175.
Senate hearings were held in Houston to evaluate the restrictive Texas CCW law. Lawmakers heard calls for Vermont-style carry legislation from GOA members and supporters, as well as for technical changes within the current statute.
[GOA has been leading the push in several states to pass Vermont-style concealed carry legislation. Such legislation would remove all restrictions on otherwise law-abiding citizens who carry firearms for self-defense, thus eliminating all permits, fees or registrations. These bills mirror Vermont’s law which only punishes prohibited persons with firearms and those who carry a gun with intent to commit a violent crime.]
Changes being considered in the Texas statute include a sweeping new preemption law, reciprocity agreements and nonresident applications. Not being considered apparently are reductions in fees or making the application process more accessible to the less affluent — even though reportedly it’s running a 25 percent financial surplus.
Reports indicate more places are dropping “no-carry” signs, including Blockbuster Video, the Chili’s chain and others. Several amusement parks (like Six Flags) have started using metal detectors (never used when carry was illegal), and even exclude armed off-duty police.
So far there have been 250,000 applications made, 83,000 returned, 67,000 licenses issued and only several hundred rejected for cause. Licensees committed two justified killings, two suicides and no other violent acts; several dozen licenses were lost due to unrelated crimes.
GOA is continuing to survey candidates for the state legislature prior to the general election. Results will be available before the November election. Of interest to GOA members is the race between challenger Dr. Suzanna Gratia Hupp (R) and incumbent Layton Black (D) for Texas House District 54. Dr. Gratia Hupp became a national advocate for the right to carry after her parents were gunned down in front of her in Luby’s Cafeteria in Killeen, Texas. Dr. Gratia Hupp has answered her GOA survey 100 percent in support of gun owners’ rights. Rep. Black has so far refused to take a public stand on the issue or answer GOA’s survey.
* Action Item *
Call Dr. Gratia Hupp. Thank her for her strong pro-gun stand: 512-556-2436.
Call Rep. Black. Insist that he respond to GOA’s survey and publicly support your gun rights: 915-938-5545.
State Senator Gerald Cardinale (R-39) has introduced S.1281, a bill to add personal protection as a justifiable basis for the issuance of a carry permit. The bill requires authorities to issue permits to carry a handgun for personal protection under more reasonable conditions than at