Federal gun experts have too often suffered from a shortage of expertise and an excess of spite. Len Savage, the president of Historic Arms, a Georgia company, is being boarhawged bigtime by the G-men. He had an excellent commentary piece posted recently by the fine folks at Jews for the Preservation of Firearms Ownership. Claire Wolfe has been hammering away at this abuse on her zesty four-star site here.
I repost his piece below. There is a long history of the feds manipulating tests to convict gun owners. Here are a few paragraphs I wrote about this problem in Feeling Your Pain: The Explosion and Abuse of Government Power in the Clinton-Gore Years (St. Martin’s, 2000):
The Clinton administration, in administrative and court actions, consistently acted as if gun owners had no right to a scintilla of due process.
Harold Staples of Jenks, Oklahoma owned an AR-15, a semiautomatic rifle. The ATF raided his home, confiscated his gun, and charged him with owning an unlicensed automatic weapon, a crime that carried a prison sentence of ten years. Staples swore that, when he operated the gun, it fired only one shot per trigger pull, and functioned poorly at that. Staples was convicted; an appeals court overturned the decision.
The Clinton administration appealed and, in 1994, the Supreme Court heard the case. As the brief for Staples pointed out, “Upon seizure, the AR-15 at issue was inoperable, absent critical parts and in a state of disrepair.” The gun was disassembled and rebuilt by federal agents with “different parts, cleaned and oiled thoroughly and fired with soft primer ammunition. The weapon was reassembled by the government with a bolt carrier which was not the bolt that originally fit this AR-15.” Staples’s lawyer, Stephen Halbrook, noted that the ATF, after it confiscates a person’s guns, routinely tampers with them to make them shoot automatically, and then drags the person into court on trumped-up charges.
The brief for the Clinton administration asserted: “A defendant may be convicted of such offenses so long as the government proves that he knew the item at issue was highly dangerous and of a type likely to be subject to regulation.” To justify their claim that gun owners must be presumed guilty, the Justice Department cited cases involving the presumption of guilt under the federal Narcotics Act of 1914. Federal prosecutors argued that “one would hardly be surprised to learn that owning a gun is not an innocent act.”
The Supreme Court, by a 7-2 margin, disagreed. Justice Clarence Thomas, writing for the majority, declared, “The government’s position, is precisely that ‘guns in general’ are dangerous items. [For] the Government . . . the proposition that a defendant’s knowledge that the item he possessed ‘was a gun’ is sufficient for a conviction.” Justice Thomas pilloried the Clinton administration’s position: “In the Government’s view, any person . . . who simply has inherited a gun from a relative and left it untouched in an attic or basement, can be subject to imprisonment, despite absolute ignorance of the gun’s firing capabilities, if the gun turns out to be an automatic.”
The ATF engaged in institutionalized perjury to boost its conviction rate of gun owners. The ATF’s National Firearms Branch keeps the National Firearms Registration and Transfer Records – the records of all the owners of machine guns, short-barreled rifles and shotguns, and other destructive devices. Anyone found in possession of a machine gun or other prohibited device who is not listed as the owner in the official records faces ten years in prison.
ATF officials testify in up to a thousand federal prosecutions a year of violators of the National Firearms Act. On October 18, 1995, Thomas Busey, chief of the ATF’s National Firearms Act Branch of the ATF, in a videotaped presentation at ATF headquarters, declared that “when we testify in court, we testify that the database is 100 percent accurate. That’s what we testify to, and we will always testify to that. As you probably well know, that may not be 100 percent true . . . 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.” By claiming that the records were 100 percent accurate, the ATF generated convictions of innocent citizens whose lives were destroyed because of ATF paperwork snafus. The errors in the records especially affected collectors of “curios and relics” – guns more than 50 years old.
The Treasury Department Inspector General investigated ATF’s record system and concluded that ATF employees had intentionally destroyed records of machine gun and other registrations. As GAO’s Eric Larson noted, “The IG also found that ATF improperly registered NFA firearms, and that more than 100,000 NFA firearms are registered to people who are dead. “ The ATF admitted in correspondence to Larson that the NFRTR database in 1998 “as a whole does not reflect reliable data.” Yet, ATF officials continued testifying in court that the database was accurate and reliable – and thus that any citizen whose firearm was not registered should be sent up the river.**//
Here is Len Savage’s recent piece.
Am I an Enemy of the US Government?
by Len Savage
Prior to July 7, 2003, I would never have asked myself that question. Now I find myself reflecting back to that day when I ponder, “How in the world did this mess get started?”.I am a Federally licensed firearms manufacturer. As a responsible member of my industry I always worked closely with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). I had always encountered good people at the local Atlanta field office. Very professional, very prompt, and yes even courteous.As a manufacturer I am not required to submit any sample to ATF for review. I submit samples to be completely open and transparent, and most of all, to verify compliance with all federal laws. I do not ever wish to make or sell an illegal product.On July 7th, 2003 I called Sterling Nixon, Chief of the ATF Firearms Technology Branch (FTB), to ask the status of a classification of one of my company’s products. To my shock, this guy acted like a hot head. He immediately told me about being too busy to deal with a “nobody” and hung up.
I had spoken with his boss on a previous occasion, and still had his number. I called him and asked, “What’s with the new guy (Sterling Nixon)? Mr. Nixon called me a short time later and warned me to never ever go “over his head” again. He clearly explained that criminal cases always take precedence over submission samples at FTB, and FTB was very busy dealing with some federal cases. He went to say FTB serves every single Federal Court by classifying firearm-related evidence as firearm, machine gun, short barrel rifle, etc.
I eventually received my classification letter on the product from the FTB about a month later. However, the letter was an obvious “cut and paste” job from a previous letter that ATF had sent to my company and was full of errors (as it described a different rifle). I promptly notified the FTB of those errors. I was again told because of the high load of criminal cases that their mistake on my submission must have “fallen through the cracks.” I was asked to make corrections in the margin and fax it to FTB so they could write a revised classification letter. I did so. Later I received a revised letter — that I had essentially written myself.
I became very concerned with other errors the ATF/FTB was making on submitted samples. How many innocent people may have had their evidence in criminal cases “fall through the cracks” if FTB was under a large caseload? Would the agency take short cuts with submitted product samples or worse, with evidence in criminal trials?
I was soon to find out. The situation was worse than I — or anyone — could have imagined.
Among other things, I was more than a little curious as to how ATF/FTB conducted examinations on firearms used as evidence in Federal Court. Around this time, I was asked by defense attorney Monroe Whitesides, Esq. to examine a rifle the FTB had declared to be a machine gun in the case of US v Glover. Mr. Whitesides received permission to document the tests and my examination of the rifle in question, which we did using videotape. Only later would we understand how important that video was to be.
The day of the test came and it revealed that Mr. Glover, the defendant, had indeed “fallen through the cracks” at FTB. And that’s describing the situation charitably. Firing tests and my examination of the rifle’s mechanisms showed that the firearm was not an “illegal machine gun” at all, but a malfunctioning semiautomatic. Any expert who disassembled the rifle would have immediately discovered this. The FTB’s “expert” admitted on tape that he had never examined the rifle’s inner workings, and yet he and his agency were willing, even eager, to turn the rifle’s owner into a felon! The video document prevented an innocent citizen from being imprisoned.
I shared my growing concerns with ATF during conference calls with both ATF management, and FTB management. I was knocked speechless one day (and brother that is HARD to do), by the revelation of both the Chief and the Assistant Chief of FTB that no documented procedures ever existed for testing firearms! They went on to tell me they design the test of a submitted “evidence” on a case by case basis. In other words, they make procedures up as they go along. (And many of those procedures, as we shall see below and as I have written elsewhere, are simply outrageous.) The lack of documented scientific procedure has been confirmed by Congressional Research Service investigation. There is no documented scientific testing procedures for firearms evidence in Federal Court!
The firearms “experts” from FTB will look official testifying in court in their three-piece suits. They will have impressive titles. They will sound technically knowledgeable. In short they will carry great influence with judges and a jury (after all they are from the government). I have seen it first hand, it IS impressive.
But it is simply an illusion. Nothing but smoke and mirrors.
With no testing standard, no use of scientific method, what is to keep ATF agents from modifying the firearm, then declaring a legal semiautomatic to be “readily restorable” to the status of “illegal machine gun”? In fact, they have done this.
I have also seen an “expert” declare — with a straight face — that a lump of steel that is incapable of firing anything is a machinegun because of unspecified “machinegun features and characteristics.”
FTB “experts” have even added external and internal conversion devices to legal semi-auto rifles during testing, then claimed that that the firearm was — because of these ATF additions — an “illegal machine gun.” (The ATF-added devices are by law machineguns in and of themselves, because they when installed, allow a host firearm to fire full auto as a machinegun.) ATF “experts” have done this in full view of the entire court! In the case of US v Wrenn, for instance (another case in which I acted as an expert for the defense) FTB personnel did not take their conversion devices off prior to coming to trial.
Apparently I had enraged the ATF so greatly by the time of the Wrenn case that a few months later the agency declared one of my company’s products to be “illegal contraband” and a “machinegun.” The ATF had classified this device as a “non firearm” nine months earlier. I had been in production for months after receiving the “non-firearm” classification. Now suddenly — for no reason other than spite — my product was illegal. My investment was wasted. I was in jeopardy of becoming a criminal. Had I sold the device to any customers, they also would have been in danger of being declared felons.
The re-classification was obviously done to teach me a lesson for showing up at court cases
With my living and my freedom in jeopardy, I felt compelled to notify the United States Federal District Court of ATF malfeasance and to notify the Department of Justice, as well. This harassment of me and my livelihood is unacceptable behavior on the part of ANY federal agency.
Unfortunately, the result of my protest was predictable: The Department of Justice (of which the ATF is a subsidiary) claimed to have investigated itself. It found itself faultless.
Years after I first began asking questions, the FTB still does not have a documented firearms testing procedure. Today, defense attorneys use the Congressional Research Service report to demonstrate the ATF’s lack of credibility. And — no surprise — prosecution of “mystery machinegun” crimes have dropped drastically. This is a good thing for justice. For years, too many innocent people were railroaded into prison.
Unfortunately my own circumstances are less bright. The ATF has forbidden me to contact it in any way other that written correspondence. This puts me at a disadvantage to all my competitors, who may still freely call the agency to ask questions. But that’s not the worst. The agency has managed to “lose” many of my letters. They have not seen fit to answer some of my correspondence for 14 months. I am for all purposes shut down by the US Government. They have done this by bureaucratic fiat and bad faith. They have shut down my business and destroyed my livelihood without cause or court order, without the due process allegedly guaranteed by that same government.
Am I now an enemy of United States Government?
Historic Arms LLC [email protected]
UPDATE: Just heard from JPFO’s webmaster. They have a movie on the history of ATF’s abuses coming out this Spring – details here.