BATF

Hopefully this will be the first of many such cases.  No one should be thrown in jail because the BATFE lost their records.  I got the tip from David Hardy.

The details are here.  The basic idea: a prominent statistics expert has testified that the BATFE's registry of restricted weapons is not sufficient to maintain a criminal conviction "beyond a reasonable doubt".  There's all sorts of reasonable doubt as to whether someone's registration was lost or incorrectly recorded, based on poor record-keeping procedures and the possibility of lost or inaccurate records.

There's a two-part series (Part 1, Part 2) on the Olofson case (in which an AR-15 rifle malfunctioned and the ATF charged and convicted him for transferring a machinegun).  This is exactly the sort of case that demonstrates that the BATFE (as a whole, if not every individual agent) is treating every gun owner like a criminal... rather than as someone exercising a protected constitutional right.  The legal gun owning community is subject to persecution (not to mention prosecution) from a government agency whose unwritten laws are throwing honest citizens into prison for years.

The Washington Post has a story on a whistleblower at BATFE.  The whistleblower, who originally complained about conditions under the BATFE's previous director Truscott, has now filed a complaint alleging retaliation for his reporting.

My first thought is that the BATFE's raid on Cavalry Arms was intended to be a media circus, and the timing is really, really close -- almost as if they were trying to distract the press from covering this story, but moved just a little too soon.

Red's had the story before I did, but the speculation and conspiracy-mongering is all mine.

Speaking of the Cavalry Arms raid, I haven't said anything about it because I don't really have anything to add.  It seems to me to be a glaring example of how horribly unfair it is for the government to raid a heavily-regulated business, confiscate all their inventory without filing any charges (that we know of, yet) and then expect that business to be able to defend itself in a court of law sufficient to receive a fair hearing.  Confiscating an entire inventory seems more like a tactic intended to put someone out of business and thus prevent them from obtaining due process in a court of law.

But it's hard to make any sort of opinion statement based on nothing at all, and that's what we've got for the moment.

When the nomination is for the head of the BATFE, and the nominee appears willing to defend his agent's misconduct and persecution of gun owners and dealers.  Of course, they can't do it with logical arguments; they have to resort to lies...

US ATTORNEY Michael Sullivan has taken an even-handed approach toward reducing the use of illegal firearms while still respecting the constitutional right to bear arms. But that's not good enough for some Republican US senators who have fallen under the sway of the gun lobby and are blocking his confirmation as head of the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives.

... and name calling...

So, some cow chip-kickin' senator from Louisiana doesn't want Mike Sullivan, the US attorney in Boston, to become head of the US Bureau of Alcohol, Tobacco, and Firearms because Sullivan wants to make it harder for people to get guns.  Um, isn't that what the head of the ATF is supposed to do?

For the record, the BATFE as an agency is supposed to collect taxes.  That's why it was originally formed under the Treasury.  It took almost 40 years for the agency to move from its origin, under the Treasury as a tax-collection agency, to its current position under Homeland Security as a "save-us-from-homegrown-terrorists" scare-monger.

That's right; the anti-gun Democrats are defending a Bush nominee, while the pro-gun Republicans are opposing him.  Has any constituency been so thoroughly betrayed by a President they put in office before?  Between his promise to sign the Assault Weapons Ban renewal (if it reached his desk; it didn't), his brief in Heller, his mishandling of the Armed Pilots issue, and his handling of the BATFE both in general and with this nomination, gun owners could be forgiven for asking whether their efforts in 2000 and 2004 were worth it.

Hat tip to David Codrea for the stories.

The JPFO are asking for donations to help them boot the BATFE. 

There's been some excitement over at SaysUncle's place.  It seems one of his friends was raided by the BATFE.  There was quite a bit of confusion on all sides, and as a result, it's useful to consider the sequence of events:

1. Scoot, the accused, breaks up with his ex.
2. The ex calls the police, telling them that Scoot has "machineguns".
3. The ATF get excited and conduct a raid.  They forget to bring a search warrant, but get one a few hours later.
4. Searching the house, they don't find any machineguns.
5. They DO find lots of documentation about firearms, along with "assorted gun parts" and machine tools.
6. They don't find any machinegun parts, but they talk to Scoot's current girlfriend about how she "knows he was making machineguns, right?"
7. Finally, after all the dancing around, Scoot is apparantly charged with being a felon in possession.

We all know that being a felon in possession of a firearm is a big no-no, and that's the impression that will be left in most minds after reading this story... that is, that the BATFE is actively knocking on doors and searching homes looking for violent criminals in possession of firearms.  Perhaps not quite door-to-door but not far off and only a tip away.  Very scary for the violent criminals illegally possessing firearms.

But that's not what really happened.

What really happened was that someone was living their life, to all my knowledge peacefully, and because someone they married got angry, the government will now ruin their life.

The BATFE did not arrive because Scoot had committed a violent crime; nor because he was planning one; nor because he was enabling others to commit violent crimes.  They showed up because an ex-wife wanted to ruin his life, and was willing to tell lies (or, at best, speak in ignorance) in order to accomplish her goal.

They showed up without a warrant -- probably just a few minutes after she said "machineguns".  They couldn't wait even two hours to get a warrant before sticking their own fancy guns in Scoot's face on the word of an angry ex-wife. 

When they didn't find machineguns, they went digging.  They tried to accuse him of making machineguns, but apparantly couldn't make that stick either.  Finally they settled on felon-in-possession; unfortunately that part of the story appears to be accurate.  Scoot seems to be a convicted felon, a fact that a law enforcement officer should be able to determine readily enough.  It seems likely to stick because it seems to be true... but it's important to remember that it was the last thing on the list.

I don't know the man, and I don't know if he could be trusted with a gun.  I do know that this isn't about his criminal history, or any of his actions relating to firearms, or any real and immediate threat posed to public safety.  It's about a failed relationship and a woman willing to hurt a man she once loved.

The government isn't anything more than a weapon in her hand.

UPDATE: Some improvements in the situation, from SaysUncle.

Dave Kopel has a must-read article on the misuse of BATFE gun trace data.  It's fairly old (dating from 1999)  but the points it makes are still quite valid, and anti-gun organizations continue to make spurious and scientifically misleading claims based on this data.

"The ATF tends to focus or has a significant focus on trivial, immaterial violations which are unrelated to public safety," Gardiner said. "And they impose unreasonable standards of perfection which are simply not humanly achievable."

The core problem with the BATFE is that they imagine themselves to be a public-safety agency, when in fact they are a tax-and-regulatory agency... one whose authority to "regulate" is on shaky (to say the least) Constitutional grounds to begin with.  They find it very difficult to target criminals, since criminals generally don't buy guns at stores.  Instead they focus on paperwork crimes that are easy to prosecute because the people targeted are legitimately trying to follow the law.

One of the big differences between the BATFE and other tax-and-regulate agencies is that the laws the BATFE is charged with enforcing bear some heavy penalties.  It's like going after people who pay their taxes late with rocket launchers and ignoring people who don't pay at all.

Yep.. our stalwart friends at the Convenience Store Agency have saved the world from a real ninja.  They subdued him in daring hand-to-hand combat on a college campus, where the ninja had disguised himself as a student and was in the process of planning to nefariously out-party the pirate gangs at a local event.

I know I appreciate the BATFE's attempts to keep the world safe from ninjas.

Go read about the friend or foe question, excerpts from Congressional testimony, and a partial video from Of Arms and the Law.

Way back in the late 90's, the Bureau of Alcohol, Tobacco, Firearms, and Explosives woke up grumpy one morning and decided to classify the engines used in model rocketry as "explosives", thus bringing those materials under their regulatory purview.  As anyone familiar with government knows, the more an agency regulates, the larger that agency's budget.  There's a built-in incentive to regulate more... and more... and more.  Normally, to increase an agency's regulatory authority, the agency has to convince Congress to pass a law doing so.  But if they are feeling especially grumpy they can try to reclassify something themselves, simply by issuing a new regulation under their present grants of authority.

That's how rocket engines became classified as explosives, after decades of safe, sane very-very-low-orbit insertions.  The BATFE woke up one day and said they were now explosives, subject to BATFE regulations, and you can just quit shooting those things into the air right away now. 

Makes you just squirm for the chance to issue regulations, doesn't it?  Mmmm, power.  Nothing like making little kids cry and science teachers swear to make a bureaucrat smile.

Well, the National Association of Rocketry wasn't about to take that sitting down.  They filed suit.  And on Friday, Febuary 10th, 2006, the DC Circuit Court of Appeals handed down a decision.  And what a decision!

"The problem in this case is that ATFE's explanation for its determination that APCP deflagrates lacks any coherence. We therefore owe no deference to ATFE's purported expertise because we cannot discern it. ATFE has neither laid out a concrete standard for classifying materials along the burn-deflagrate-detonate continuum, nor offered data specific to the burn speed of APCP when used for its 'common or primary purpose.' On this record, the agency's decision cannot withstand judicial review."

Yep, that's the agency we all know and love to hate.

"Alcohol, tobacco, and firearms should be a convenience store, not a government agency."  That quote (whose origin slips my mind) was originally inspired by the Bureau of Alcohol, Tobacco, and Firearms, which is the government agency in charge of regulating those three things, and doing a notoriously poor job of it.

By way of John Lott, we learn that Texas has turned that saying into reality. 

Unfortunately, since that quote was first uttered, the agency which inspired it has gone through a reorganization.  They are now the Bureau of Alcohol, Tobacco, Firearms, and Explosives.

I can only hope that the wonderful little Texas convenience store will view the change in the agency's scope as an inspiration.

David Hardy reports that an audit of the BATFE's handling of its duties may be in the works.  Assuming it is conducted honestly, it will likely produce a great deal of evidence which can be used to drive reforms.

SaysUncle has the scoop on the BATFE's latest tactic: changing the rules without changing the law.

Suppose you were going to fund a federal agency to the tune of $852 million (2004).  Suppose you were going to empower that agency to conduct testing and enforcement operations in pursuit of both tax revenue and criminal convictions of those caught violating the law.  Suppose that that agency would be responsible for classifying particularly dangerous items, with felony charges and hundreds of thousands of dollars in fines resting on whether a particular item was classified properly (and whether that could be proven in a court of law beyond a reasonable doubt).  Wouldn't you expect that agency to develop some standardized scientific tests in order to fulfill its duties consistently and accurately?

Yeah, me too.

Would you say that a testing process that could make or break a felony conviction had better be fair, reliable, and predictable, in order to satisfy the Constitutional requirement for equal protection of the law?

Sure, I would too.

So why exactly does the Bureau of Alcohol, Tobacco, Firearms and Explosives get a free pass?

If you asked ex-President Clinton with the aid of truth serum, you might get an answer something like "because that agency is in charge of harassing and intimidating gun owners, not enforcing the law."

Well, we've been putting up with the BATFE's misadventures for much too long, and the Jews for the Preservation of Firearms Ownership have started to score some serious points.  You see, obtaining convictions based on "arbitrary and made-up standards" is a little bit unConstitutional.  And it's time we started to apply pressure. 

Thanks to the efforts of the JPFO, the Congressional Research Service has issued a report, which leads with this paragraph:

This memorandum has been written in response to several congressional inquiries about firearms testing procedures employed by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), and whether those procedures are outlined in a manual.  Regarding this matter, ATF officials have informed the Congressional Research Service that there is no single "firearms testing procedures manual," given the wide variety of firearms available in both legal and illegal markets.  Critics of ATF, who have requested congressional verification as to whether such a manual exists, have questioned the adequacy of ATF firearms testing procedures -- particularly in regard to machine guns and other firearms regulated under the National Firearms Act.  To address issues raised by ATF critics, Representative Phil Gingrey has introduced the Fairness in Firearm Testing Act (H.R. 1603) that would require ATF to make video recordings of all firearms and ammunition tests.

Now that's a real scorcher of a memorandum, despite the weasal words the ATF insisted on.  And it's a good idea to thank Congressman Phil Gingrey for his efforts (gingrey.ga@mail.house.gov).  Hat tip to SaysUncle for the original story.

Personally, I'm thankful for Gun Owners of America.  But I get what Larry Pratt has to say about the Richmond gun-show scandal.

The Jews for the Preservation of Firearms Ownership have caught the Beauro of Alcohol, Tobacco, Firearms, and Explosives on video trying to lock someone up because their firearm was malfunctioning. Based on an anonymous tip that someone was constructing automatic firearms, they seized an old, worn rifle from someone's inventory and test-fired it. The rifle was worn enough to double-fire occasionally, so they indicted him.

But then a firearms manufacturer with expert knowledge stepped in, took apart the firearm, and demonstrated that it was a semi-automatic firearm with all appropriate semi-automatic parts. The indictment was dropped because prosecutors were honest enough not to charge someone with a felony because his firearm was worn.

But the BATFE hadn't even bothered to take apart the gun to find out.

This could happen to anyone the BATFE decides to target, folks.

The Jews for the Preservation of Firearms Ownership brings us another "model prosecution" for the BATFE. This time, an intrepid rookie agent is induced by two senior agents to commit perjury; the senior agents themselves falsify several forms, committing a federal felony in the process; and the government manages to indict the ham sandwich honest citizen they had targetted.

Is this how you want a law enforcement agency to behave?

Recently, a former BATFE official said out loud what he has presumably been thinking for years:

"If it wasn't for criminals, there wouldn't be a gun industry in this country."

This fellow used to run the BATFE's National Tracing Center during most of the Clinton presidency and is now a "partner" in anti-gun consulting firm Crime Gun Solutions.  The Citizen's Committee for the Right to Keep and Bear Arms rightly criticizes the statement, describing it as slanderous, and the Houston Chronicle for printing it unchallenged. 

What I find more interesting, though, is the story that comes up when you read between the lines.  Here we have an obviously anti-gun political appointee.  He's so anti-gun that he apparantly believes only criminals buy new firearms.  And yet he was tasked with running a major portion of an agency that requires the best possible relations with the gun industry to do its job.  When the only hope that the BATFE has of enforcing the regulations it is tasked with is voluntary compliance, the officials of that agency should be reaching out a hand in friendship, not raising their fist to strike.

So what's the connection with the British political comedy Yes, Minister?  Simple.  There are many ways to bribe a politician, and political appointees are politicians.  One of the dodges used regularly on that program is to arrange for a delayed payoff; in return for present considerations, you arrange for a cush consulting job when the official leaves office.  The BBC called it Jobs for the Boys. 

Nunziato's "partner" role in Crime Gun Solutions, a consulting firm often cited by the Brady Campaign, may well be nothing more than a rubber stamp; putting his name and past official position behind the policies he is being paid to promote. 

Does that consulting job involve anything more strenuous than saying, "In my time as director of the National Firearms Tracing Center, I noticed that..." with a straight face?  Apparantly it doesn't involve anything like maintaining a website.  His firm does things like "facilitate Crime Gun Interdiction Summits", but that's evidently not the role of a former BATFE official.  It also seems to be quoted a lot about
the Assault Weapons Ban.

And guess who was in charge of the BATFE's Tracing Center during the run up to that legislation (passed in 1994), along with the following 4 years and at least one legislative report?  Nunziato.  Remember how studies cited the decline in assault weapon traces as evidence the ban was working (even though it's not really any evidence at all)?  You think maybe the head of that department could take steps to change which guns were traced? 

Of course, none of this is evidence of any impropriety.  That's the whole point of doing things this way, after all; ex-officials have a right to work in their field of expertise.  For that matter, they have a right to work as Mongolian underwater basket weavers if they can get someone to pay them for it. 

But it doesn't exactly breed confidence as to the objective nature of the man's work... including that performed as a government official on the Assault Weapons Ban, now does it?

David Hardy at Of Arms And The Law has a highly-compressed version of the BATFE videotape wherein a BATFE agent admits that their registration database has a 50% error rate, but "[we] will testify that it is 100% accurate in court."

The BATFE has been trying to keep this tape a secret for years, in order to prevent defendents in firearms cases from countering testimony from agents with it.  Now, they can't anymore. 

(Note: The video is embedded in the page; you will need to wait for it to download in order to watch.  For your convenience, here is a direct link).

There are three important elements to this:

1. A BATFE official has admitted openly to committing perjury, stating that his agents have lied and will continue to lie under oath in criminal cases.
2. People have had their homes and businesses searched, their lives turned upside down, some have gone to jail, and more than a few have been killed based on this agency's testimony of 100% accuracy. 
   
3. The federal agency charged with the registration of fully-automatic firearms and destructive devices can't even manage to keep their records accurately for 720,000 firearms.  There are over 200 million firearms in the United States that are not presently subject to registration -- how inaccurate would the registration records for all of those firearms become?

The fact is, registration systems are not accurate once they began to scale up to national populations.  It's too easy for errors to get into the system.  It's too easy for someone to miss an entry, forget to file a form, mistype or misspell a name.  People who own registered firearms are extremely careful with their records, because it means a felony conviction for them if they are not. 

Government agencies are much less careful with those records, because the consequences of carelessness are much less significant. 

Those who propose registration systems need to explain why a simple, inevitable paperwork mistake by a government official is worth sending an honest citizen to jail. 

The AnarchAngel is excited about the results of Schulz v IRS, wherein a US Court of Appeals held that IRS "administrative procedures" do not constitute due process of law, and that the IRS must seek enforcement orders through the Federal Courts rather than issuing their own liens and so forth.

No argument that the case is important for those who think the tax system is abusive.  But Chris seems to think that the case will also gut the authority of the BATFE, and I don't think so.  The reason is simple: Schulz v IRS deals with enforcement, and the issues with the BATFE he outlines are with simple regulations.  This ruling may force the BATFE to get a search warrant (on trumped-up evidence, if necessary) before raiding the house of an FFL dealer, but it won't mean they can't find him guilty in a federal court of violating their regulations.  It just means they have to try him in said court before punishing him.

And, of course, there are always appeals.

The BATFE has issued an open letter to firearms importers, indicating that they plan to stop permitting the import of certain parts.  All the usual suspects make their appearance. I honestly have to wonder why this is appearing now; is Attorney General Gonzales protecting Bush's political flank with this, or did it originate within the BATFE?  Either way, it's shameful to see this kind of idiocy during a supposedly pro-gun administration.

I will say this: if the Republicans ever manage to stab gun owners in the back often enough to convince us that neither side supports gun ownership rights -- and they are not far from convincing me of exactly that -- then there will be hell to pay.  The left is dilligently trying to take away the soapbox; the elected and appointed right is rapidly convincing me that the ballot box is useless; that leaves the ammo box, and we don't want to go there. 

Packing.org suggests HR1703 as a remedy to this BATFE action.

This is worrying, but no longer surprising.  There have been judicial rulings indicating that prosecutors were less than forthcoming with the defense team -- pity how that evidence only came to light after McVeigh had been executed, and could no longer be asked about the additional evidence...

There's also a BATFE angle, which was a surprise to me:

One former senior member of the DOJ put it in strong terms. He laid blame at the feet of the Bureau of Alcohol, Tobacco and Firearms.

"I know Strassmeir was central to this crime and I believe Carol Howe, the informant, was dead right. She warned the ATF and they blew this whole thing. They knew the details of what was in the works and they messed everything up."

Take this with the usual grains of salt due anonymous whistleblowing, of course.  I got it from Firehand.

Claire Wolfe has an account of BATFE abuse that will shock and horrify you.  It seems the BATFE agents set up outside a Virginia gun show and sent investigators to the homes of everyone buying a gun.  The investigators filled out surveys from the people they found there ("Hello, ma'am.  Did you know your husband was buying a gun at a gun show today?") or their neighbors ("Hello.  Did you know your neighbor is buying a gun at a gun show today?  How do you feel about that?"). 

If this checks out, it's completely outrageous, and I expect large civil judgements to be paid.

UPDATE: There's a thread on The High Road and American Minutemen about this incident.  The latter has a supposedly (apply the internet rule) first-person account of the incident.

UPDATE: CyberCast News Service has a story about the situation up.  It's a good summary of what we know so far, and includes some new information and research.