§ 479.101 Registration of firearms.

(a) The Director shall maintain a central registry of all firearms in the United States which are not in the possession of or under the control of the United States. This registry shall be known as the National Firearms Registration and Transfer Record and shall include:

(1) Identification of the firearm as required by this part;

(2) Date of registration; and

(3) Identification and address of person entitled to possession of the firearm as required by this part.

(b) Each manufacturer, importer, and maker shall register each firearm he manufactures, imports, or makes in the manner prescribed by this part. Each firearm transferred shall be registered to the transferee by the transferor in the manner prescribed by this part. No firearm may be registered by a person unlawfully in possession of the firearm except during an amnesty period established under section 207 of the Gun Control Act of 1968 (82 Stat. 1235).

(c) A person shown as possessing firearms by the records maintained by the Director pursuant to the National Firearms Act (26 U.S.C. Chapter 53) in force on October 31, 1968, shall be considered to have registered the firearms in his possession which are disclosed by that record as being in his possession on October 31, 1968.

(d) The National Firearms Registration and Transfer Record shall include firearms registered to the possessors thereof under the provisions of section 207 of the Gun Control Act of 1968.

(e) A person possessing a firearm registered to him shall retain proof of registration which shall be made available to any ATF officer upon request.

(f) A firearm not identified as required by this part shall not be registered.

Source: 36 FR 14256, Aug. 3, 1971. Redesignated at 40 FR 16835, Apr. 15, 1975, and amended by T.D. ATF 48, 44 FR 55843, Sept. 28, 1979.
   

The Secretary of the Treasury, after publication in the Federal Register of his intention to do so, is authorized to establish such periods of amnesty, not to exceed ninety days in the case of any single period, and immunity from liability during any such period, as the Secretary determines will contribute to the purposes of this title.

Source: United States Statutes at Large, Volume 82. Washington, D.C.: U.S. Government Printing Office, 1969, page 1236.

NOTE: Effective January 24, 2003, the Bureau of Alcohol, Tobacco and Firearms (ATF) was transferred from the Department of the Treasury to the Department of Justice, and renamed the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE). Duties of the Secretary of the Treasury regarding ATF functions were transferred to the Attorney General. Thus, under current law, the Attorney General is empowered to establish future amnesty periods under provisions of § 207(d).
   

In a 1998 report (click here to read it), the Treasury Department Inspector General determined that "The law provided that such amnesty periods could be granted 'after publication in the Federal Register of (the Secretary of the Treasury's) intention to do so.' ATF advised us that the Bureau never issued a notice in the Federal Register. . . . ATF Counsel advised our counsel that a temporary grace period was authorized as an inherent corollary of the statute. ATF, however, was unable to locate any documented support for its limited conferral of amnesty beyond the statutory period exclusive of the IRS Amnesty Guidelines" (pages 11-12).

Importantly, the "former section of the IRS manual entitled 'Amnesty Guidelines', dated April 16, 1969," was issued after ATF issued (on January 1, 1969) published regulations in the Code of Federal Regulations stating that unregistered NFA firearms could only be registered during an amnesty period, in violation of ATF's own regulations.
   

At a 2000 hearing, the Subcommittee on Treasury, Postal Service, and General Government of the Committee on Appropriations, House of Representatives, requested ATF to provide the Subcommittee reasons why a new amnesty period could not be established. ATF's reasons have been reproduced on pages 26-27 of the published hearing record (click here to read them). This hearing record may be the most complete formal statement ATF has given as reasons it declines to establish a new amnesty period. The hearing also includes discussion of the amnesty issue.

In 2005, a subsequent analysis of the amnesty issue, in light of continuing problems with the accuracy and completeness of the NFRTR, was prepared and published by the Congressional Research Service (click here to read it; see pages 16-18

Finally, also of interest is the 1968 Congressional testimony of then-IRS Commissioner Sheldon Cohen about the effects on enforcement of the NFA by the Haynes decision, which invalidated the registration requirement because it conflicted with the 5th Amendment: "We had been averaging, under the national act, about 60 to 70 prosecutions per month for national act violations. Since the first of the year, when the Haynes decision was rendered, we are down to about something in excess of 40 a month. So we are talking about 35 to 40 percent in the area of prosecutions under Haynes. And, therefore . . . I would like to see this amendment to the National Act passed at the earliest practical moment." Click here to read the testimony; see pages 161-162

Commissioner Cohen's testimony may be the only known public record of the impact of invalidating the NFA's firearm registration requirement on federal law enforcement, and is significant because it refutes contentions by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), that a new amnesty period would suspend enforcement of the entire NFA.

Also of interest is Commissioner Cohen's testimony on pages 161-162 about the effects on enforcement of the NFA by the Haynes decision, which invalidated the registration requirement because it conflicted with the 5th Amendment: "We had been averaging, under the national act, about 60 to 70 prosecutions per month for national act violations. Since the first of the year, when the Haynes decision was rendered, we are down to about something in excess of 40 a month. So we are talking about 35 to 40 percent in the area of prosecutions under Haynes. And, therefore . . . I would like to see this amendment to the National Act passed at the earliest practical moment."

This may be the only known public record of the impact of invalidating the NFA's firearm registration requirement on federal law enforcement, and is significant because it refutes contentions by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), that a new amnesty period would suspend enforcement of the entire NFA. This hearing may be cited as "Federal Firearms Legislation," Hearings before the Subcommittee to Investigate Juvenile Delinquency, Committee on the Judiciary, United States Senate. 90th Congress, 2nd Session, Pursuant to S. Res. 240, 90th Congress. June 26, 27, 28 and July 8, 9 and 10, 1968. Washington, D.C.: U.S. Government Printing Office, 1968.

To view this instructive video, click here.
   

Volume I (click here to read)
Volume II (click here to read)
Volume III (click here to read)
Volume IV (click here to read)
Volume V (click here to read)
Volume VI (click here to read)
Volume VII (click here to read)
Volume VIII (click here to read)

This case is based on ATF's belief that Mr. Freisen, a licensed criminal attorney, possessed two STEN Mark II machine guns--one that was legally registered to him, and another unregistered one to which Mr. Friesen applied the serial number of the STEN that was legally registered to him. ATF believes Mr. Friesen gave his legally registered STEN to a member of an outlaw motorcycle gang, and applied the serial number of his registered STEN on the unregistered STEN so it would match his legal paperwork. The case revolves around the technical issue of whether the STEN which Mr. Friesen is charged with illegally possessing was manufactured by Charles Erb or not; ATF contends it was not; and Mr. Friesen contends the STEN is the same one he originally bought in February 1996. The background of the case is summarized in Volume I, pages 15-28 (click here to read it). The Government apparently never wanted this case to come to trial, as evidenced by dumping some 1,600 pages of Discovery material on the defense just 2 days before trial, about which Federal District Judge Tim Leonard made clear his displeasure. Judge Leonard also repeatedly questioned ATF's practice of producing documents exclusively for trial (which the Assistant United States Attorney (AUSA) characterized as "copies, your Honor") rather than original business documents. This practice worked against ATF when defense counsel brought Dr. Fritz J. Scheuren, a nationally and internationally recognized expert on statistics and administrative records, to testify about the validity of data from the National Firearms Registration and Transfer Record (NFRTR). The reason is that Judge Leonard overrode the Government's objections that it had not been provided copies of documents and reports in advance for study, noting that it was the Government's turn to take that on the chin because of its conduct toward the defense. The result is that the AUSA was unprepared to deal with Dr. Scheuren's testimony.

The NFRTR was invoked in this case, in part, because ATF presented one Form 2 dated May 14, 1986, as the birth certificate for a STEN Mark II machine gun bearing serial number E683, manufactured by Charles Erb. In response to a Discovery motion by the defense, ATF also produced a Form 2 dated April 20, 1986, bearing identical serial numbers (click here to see each of these Forms 2). During direct and cross-examination, NFRTR Custodian Denise Brown was unable to explain the differences between the Forms 2, but said she preferred to use the one dated May 14, 1986 (to read Custodian Brown's testimony, click here for pages 30 to 77 of Volume I). Defense did not question Custodian Brown about the new NFRTR form entitled ""Firearms Inspection Worknote: NFA Inventory Discrepancies" (click here here to read it), bearing the date 2006, was not introduced and discussed, and the current accuracy of the NFRTR was not established (e.g. "Since you don't know, does anybody at ATF know how accurate and complete the NFRTR is? Who would that be? How can we know these NFRTR certifications you are making are accurate? When was the last time the NFRTR was completed audited?"). Even with redactions made during the FOIA process, the "Worknote" discloses its objective to address discrepancies between the NFRTR and the records of Special Occupational Taxpayers (SOTs) during routine compliance inspections. Failure of the NFRTR Custodian to (for example) satisfactorily define the term "discrepancy," describe how data gathered in the "Worknote" is routinely used, demonstrate an awareness of the procedures for correcting errors or discrepancies, and so forth, would diminish the credibility of the Government.

Mr. Erb testified that ATF rejected the receivers he manufactured as noted on the Form 2 dated April 20, 1986, as incomplete, and that an ATF Inspector required additional work to be done to render them complete. The Form 2 dated May 14, 1986, has "x" notations by each serial number that Mr. Erb testified were placed by the ATF Inspector (click here to read Mr. Erb's testimony on these points on pages 581 to 586 of Volume IV).

The Government filed a motion in limine to exclude Dr. Fritz J. Scheuren as an expert witness, a motion that was overruled. Judge Leonard explained: " . . . two things persuade me to allow the testimony and overrule the motion. One is, of course, the duplicate records of Exhibit 100, and then the government's record of the same firearms, which both appear -- I've never heard satisfactorily explained why there were two of those records. Secondly, the other relationship to the issue over the accountability of the other guns that are on the government's chart. And thirdly, the issue, the fact that the government has relied almost exclusively on many of its exhibits which are records from the [NFRTR]." To read Judge Leonard's remarks, click here for pages 1011 and 1012 of Volume VI).

Dr. Scheuren testified: "I find the existing [NFRTR] records are quite useful in an exploratory setting, but they are not accurate enough by themselves to be used in a confirmatory way," including "for purposes of prosecution" (click here to read his full testimony, on pages 1016 to 1042 of Volume 6). NFAOA readers note: To see copies of the audit Work Papers Dr. Scheuren reviewed, see the "Resources" page section entitled "ATF and Treasury Department Inspector General investigations and audits of the NFRTR, and related issues" and the subsection entitled "Unpublished audit work papers from 1998 Treasury Department Inspector General Reports on the NFRTR," particularly Work Paper Bundles F and H.

Several parts of Dr. Scheuren's testimony merit the detailed comments below.

1. First, Dr. Scheuren testified that the accuracy and completeness of the NFRTR could not be reliably determined from a 1998 audit report by the Treasury Department Inspector General, because "What happened is the original 1998 report had an 18 percent and [ATF] looked at it and said it was too high. And that was based on a set of predetermined critical variables. And they [the Treasury Department Inspector General's auditors] went back in and change the critical variables that they were using based on the error rate they had in order to bring the error rate down to something under five percent." Dr. Scheuren further testified " . . . in fact, their reworking of the original 1998 data is data fishing. And you cannot make a statement about the reliability, the probability of your being right with that data fishing, that exercise." Note bene to the attorneys who are reading this and tempted to lift it verbatim for their next case: Dr. Scheuren was referring to Discovery Sample data from Form 4467 (not the entire NFRTR, but the AUSA didn't know that because he hadn't been provided copies of the audit reports), and that was not discussed during his testimony. The lesson is there's no substitute for grunt work --- an attorney who lifted this exchange without doing anything else, and used it in a court case, would likely be made to look quite foolish by the AUSA, who has most certainly read this sentence, a consequence of ATF monitoring this Internet site. Worrying that ATF won't see this is like worrying that the Milky Way is going to go out.

2. Second, defense counsel failed to challenge the AUSA's contention, in both examination of Dr. Scheuren and in closing arguments, that the NFRTR data are just fine. In the case of Dr. Scheuren, the AUSA asked him if he was aware there was such a statement in the June 2007 report by the Department of Justice Inspector General, to which Dr. Scheuren replied in the affirmative, and could not go beyond because he was not asked a question. Importantly, at closing, the AUSA made the following statement to the Jury, beginning with a quotation from the report: "'We did not find evidence that errors in the ATF records caused inappropriate seizure or criminal charges against NFA weapons owners or federal firearms licensees.' So this is much to do about nothing, the smoke and mirrors behind the case. He says if you sponsor it it's okay, we have witnesses to sponsor it, and he says even their own report concludes there was never a problem at all, ever, ever, ever, with NFA documents." (see page 1532, Volume VII; click here to read it). The June 2007 report (click here to read it) states, on page iii, " . . . we did not find evidence that individual weapons owners or federal firearms licensees had been sanctioned or criminally prosecuted because of errors in the [NFRTR] database . . . "

This statement is misleading (and may have unfortunately contributed to some Jurors voting to convict) because of the implications of page 31 of the 2007 report, where the Department of Justice Inspector General determined: "If the NFA weapons owner [sic] can produce the registration paperwork, ATF assumes the error is in the NFRTR and fixes it in the database." The AUSA's statement is misleading because the 2007 report fails to address what happens when an individual has lost his or her copy of an NFA firearm registration document, and ATF has also lost its copy of the document. Are "criminal charges against individuals or licensees" not made in any of these instances? Are no firearms seized and forfeited, or "voluntarily abandoned" to ATF? The 2007 report does not say.

3. The AUSA sought to obtain "confirmatory" information about the STEN in question, by asking if the transfers of the firearm could be verified at each stage, he would consider the NFRTR to be accurate for that particular firearm, and Dr. Scheuren replied in the affirmative. On redirect, defense counsel said " . . . although you didn't come here to testify about this, if there is a break in the link, for example, one of these witnesses didn't testify, would that cause you a concern from a statistical standpoint? A. You're using the word "statistic" in a casual way. My answer is that if there was gap in the evidence, yes. If there was a chain of custody break, yes." This exchange is useful because it underscores the AUSA's lack of understanding of the implications of Dr. Scheuren's testimony, and also from a technical standpoint on the use of the term "statistic." (There are several exchanges between Dr. Scheuren and the AUSA in Dr. Scheuren's testimony that demonstrate the AUSA didn't understand what Dr. Scheuren was talking about.)

The Friesen trial is also notable for what was omitted, given the NFRTR data upon which the Government relied. There are additional findings in the June 2007 report that could establish reasonable doubt about the validity of certifications produced for criminal prosecutions by the NFRTR Custodian. The report states ". . . continuing management and technical deficiencies contribute to inaccuracies in the NFRTR database. For example, NFA Branch staff do not process applications or enter data into the NFRTR in a consistent manner, which leads to errors in records . . . [and] [f]urther, the NFRTR's software programming is flawed and causes technical problems . . . [and] [t]he lack of consistence in procedures and the backlog in reconciling discrepancies, combined with the technical issues, result in errors in the records, reports, and queries produced from the NFRTR." Finally, the 2007 report states: "These errors affect the NFRTR's reliability as a regulatory tool when it used during compliance inspections of federal firearms licensees." How do these findings bear on the results of compliance inspections by ATF, including the one undergone by Mr. Friesen? This is not a topic ATF would like to see explored by asking ATF employees questions under oath in Federal District Court, much less ATF managers who are responsible for managing, administering, and maintaining these records.

Finally, it would seem appropriate for defense counsel in such cases to conduct vigorous Discovery, which would include requesting unredacted copies of the Work Papers for the June 2007 "review" of the NFRTR by the Department of Justice Inspector General. Copies of these Work Papers may invalidate NFRTR certifications, through questioning along the lines identified and testified to by Dr. Fritz J. Scheuren.
   

The foregoing circumstances contributed to what may be bad case law because (1) the defendant was convicted, (2) the conviction was upheld by the Court of Appeals, which may not have taken the case seriously, (3) the accuracy and completeness of the NFRTR was not adequately challenged, although valid and reliable evidence was presented, and (4) the Judge, AUSA and defense counsel may not have fully understood how the NFRTR works or the implications of missing records, and that nobody knows how accurate the NFRTR data are. Because the Giambro case illustrates the importance of attention to legal details, this writeup will focus on what seem to be critical points, and why the points seem to be critical.

On September 25, 2007, Dario Giambro of Auburn, Maine, was convicted of the felony charge of Possession of Unregistered Firearm, a Model 1908 Marble's Game Getter Gun. The case is United States vs. Dario Giambro, Criminal Number 07-41-P-S, United States District Court, District of Maine. Before trial, on August 17, 2007, Chief United States District Judge George Z. Singal denied motions in limine to allow testimony by Eric M. Larson as an Expert Witness on the NFRTR, and in seeking to have the NFRTR declared insufficiently reliable for purposes of criminal prosecution (click here. Judge Singal determined that Mr. Larson's statements "largely contain conjecture, speculation, and lack any scientific basis" (click here to read Judge Singal's order), referring to a Declaration dated July 18, 2007, by Mr. Larson (click here to read it).

Mr. Larson cited nearly two dozen Exhibits in his motion in limine testimony. For ease of reference, a version of Mr. Larson's testimony has been prepared for NFAOA readers in which each Exhibit he cites is inserted on the page following. The transcript has not been changed; the only thing that is different from the version above is that it contains a copy of each Exhibit that Mr. Larson cites. Click here to read the supplemented version of the transcript of Mr. Larson's motion in limine testimony.

Judge Singal cited United States vs. Rith (164 F.3d 1323, 10th Cir. 1999) as the most reliable evidence of the reliability of the NFRTR (click here to read Rith), which cites a 1996 audit of the NFRTR by the Audit Services Division, Department of the Treasury, that reported a "critical-error" rate of "no more than 1.5%." Judge Singal rejected what he termed "outdated" records, referring to a partial audit of the NFRTR by the Treasury Department Inspector General published in two audit reports in 1998. Importantly, the Treasury IG published audit results indicate "critical error" rates of 4.3% for Form 4467, 8.4% for "Letter" and 7.9% for "Other" NFRTR records, and unpublished Work Papers from the 1998 audit disclose that Treasury IG auditors initially found an 18.4% "critical error" rate for Form 4467; the results for "Letter" and "Other" categories were redacted completely.

What happened?

Because Judge Singal's August 17, 2007, denial was without prejudice, defense petitioned the court September 5, 2007, to bring Eric M. Larson to the Giambro trial for a motion in limine hearing (click here to read it. On September 24, 2007, Mr. Larson introduced nearly two dozen exhibits he cited as evidence to support his belief that the NFRTR is inaccurate and incomplete and, therefore, unreliable; virtually all the Exhibits were documents created by the Government. Mr. Larson testified he observed discrepancies in annual NFRTR transaction data, such as Form 4 (in which up to 625 Forms 4 may have been added), because the number of transactions reported for past years would change from year to year, giving the appearance that ATF could be adding registration documents to the NFRTR to replace documents that ATF lost or destroyed. Mr. Larson also testified the Treasury Department Inspector General determined in its 1998 report that persons working at or for ATF had destroyed NFA documents, but the number and type could not be determined. While the Treasury Department Inspector General declined to investigate Mr. Larson's allegation that ATF was adding firearm registration documents back into the NFRTR, Mr. Larson testified that the Department of Justice Inspector General determined, in a June 2007 "review" of the NFRTR, that "If the NFA weapons owner can produce the registration paperwork, ATF assumes the error is in the NFRTR and fixes it in the database" (click here and go to page 31 of the 2007 report). Mr. Larson testified that a 1979 Memorandum by the Criminal Division, Department of Justice, determined if "a particular individual or weapon is registered" in the NFRTR and ATF finds that its "files are missing," then "the only solution would be to declare another amnesty period" (click here to read the Memorandum; see page 4). The AUSA in cross-examination, stated that ATF was doing a good job by adding missing registration documents back into the NFRTR (indicating a lack of understanding of the implications, because the AUSA was reinforcing Mr. Larson's testimony), but sought to diminish the number of lost documents, and said essentially that mistakes happen. In response to the AUSA's request to identify cases he knew of personally in which ATF lost registration documents, Mr. Larson identified only two cases (involving Capt. Mont Lamar Mendenhall, and Noel Napolilli). When Judge Singal interjected a question about his further knowledge that documents had been destroyed, Mr. Larson failed to identify the finding the determination by the Treasury Department Inspector General in one of its 1998 reports that NFA documents had been destroyed, and their number and type could not be determined. Defense counsel did not redirect. In affirming his earlier decision to exclude him as an Expert Witness, Judge Singal again characterized Mr. Larson's testimony as mainly based on conjecture and speculation, possibly because in his testimony, Mr. Larson acknowledged (as he had in Congressional testimony and statements, as well as his testimony in the Giambro case) that there could be other explanations for the appearance of ATF adding NFA documents, such as misfiling data under the incorrect form, recording an incorrect year for the transaction and refiling under the correct year, and so forth, and that only a complete audit --- which the Treasury IG failed to do --- could settle the question. Importantly, Judge Singal chose to disregard the most recent evidence Mr. Larson cited; namely, that the Department of Justice Inspector General determined that ATF is adding firearm registrations to the NFRTR, as stated in its June 2007 report, which supported Mr. Larson's testimony that ATF may have been adding registration documents to teh NFRTR. Judge Singal may also have been influenced by the failure of the defendant to directly question the accuracy and reliability of the NFRTR, and been unsure of the relevancy to the Giambro case; however, he allowed the defense to argue the possibility the records could be in error. Click here to read the transcript of the September 24, 2007, motion in limine hearing.

At trial on September 25, 2007, it was only at the last minute that Judge Singal ruled the defense could introduce the two 1998 Treasury Department Inspector General reports, and the 2007 Department of Justice Inspector General "review" of the NFRTR (click here for Part I and click here for Part 2). The defense was unable to convince the Jury that the reports were sufficient to exonerate the defendant of the charges against him. Trial transcripts disclose instances where evidence about the accuracy and completeness of the NFRTR could have been introduced, and misleading statements by the AUSA. For example, during direct and redirect examination of ATF expert witness Gary N. Schaible, questions about the current accuracy and completeness of the NFRTR were not fully developed; for example, the new NFRTR form entitled ""Firearms Inspection Worknote: NFA Inventory Discrepancies" (click here to read it), bearing the date 2006, was not introduced and discussed, and the current accuracy of the NFRTR was not established. Even with redactions made during the FOIA process, the "Worknote" discloses its objective to address discrepancies between the NFRTR and the records of Special Occupational Taxpayers (SOTs) during routine compliance inspections. In closing arguments, the AUSA referred to a statement in the 2007 Department of Justice Inspector General report "that errors in NFRTR records have not resulted in appropriate criminal charges against individuals or licensees," rendering defense counsel's assertions about inaccurate records legally meaningless for purposes of the trial. The AUSA's inference is misleading because the 2007 report fails to address what happens when an individual has lost his or her copy of an NFA firearm registration document, and ATF has also lost its copy of the document. Are "criminal charges against individuals or licensees" not made in any of these instances? Are no firearms seized and forfeited, or "voluntarily abandoned" to ATF? The 2007 report does not say. Because the AUSA gets the last word, defense counsel was unable to rebut. The Court of Appeals decision denying Mr. Giambro's appeal (click here to read it) is no doubt result of some combination of the Giambro case being flawed; of Judge Singal not understanding the implications of errors in the NFRTR; and a less-than-perfect understanding of the NFA and NFRTR issues by all parties to the case. To read the defendant's appeal, click here.

There has been a recent Internet blog about the Giambro appeal, copied below from http://appellate.typepad.com/appellate/evidence/ (visited December 26, 2008):

October 02, 2008

CA1: First bends to help government prove negative in antique gun registration case

US v. Giambro, No. 08-1044 affirms a conviction for possessing an antique gun. (He was acquitted of a number of state charges.)

The least interesting issue is under 26 U.S.C. 5861(d), where the court holds that the defendant need not have specific knowledge of the registration requirement, but just knowledge of the statutory elements of the guns subject to the registration requirements.

More interesting is the admission of the ATF's "Certificates of Nonexistence" of a registration record. The maker of the certificate testified. The First's analysis isn't that satisfactory. It basically says "other circuits have upheld their use" even though there used to be problems.

Finally, and without much analysis, the First says that it was fine for the District Court to exclude the testimony of an expert witness that had done some statistical analysis on the reliability of the ATF's system of gun registration. Because the First speaks in broad, general terms (and throws around words like "Daubert," it doesn't seem like it was taking this issue seriously.
   

The following night, March 14, 2008, Mr. Dobbs further reported details of the Olofson case, noting that when ATF tested the AR-15, ATF reported that the AR-15 was not a machine gun; however, the ATF Special Agent in charge of the case requested that ATF re-test the AR-15 using ammunition with more sensitive primers, and after the AR-15 fired multiple rounds and jammed, ATF took the position that the AR-15 was a machine gun. Mr. Dobbs repeatedly expressed concerns that charging and convicting Mr. Olofson under these conditions was wrong, and that ATF had made a mistake in doing so (click here to view the report). In an interview with Mr. Dobbs, firearms expert Len Savage, President, Historic Arms LLC of Franklin, Georgia, a expert witness in two recent federal prosecutions involving firearms, stated that the reason for this problem is that ATF has no firearms testing standards; that each firearms test is done individually; and that the lack of scientific testing standards is a serious problem. Mr. Dobbs noted that proposed legislation under H.R. 1792 would require ATF to videotape all firearms tests, and showed a clip of ATF firearms examiner Michael J. Cooney testing a rifle under similar conditions (that particular firearm had broken internal parts and had malfunctioned; defendant John Glover's conviction was ultimately dismissed with prejudice for that reason, following its exposure by Mr. Savage; click here to read about the Glover case).

The foregoing two reports are not the end of this story. Mr. Dobbs stated that future reports will feature interviews with or about ATF so that questions about why Mr. Olofson was targeted for prosecution inappropriately can be answered, as well as what the Congressional delegation from Wisconsin and the National Rifle Association has to say about the injustice perpetrated against Mr. Olofson, and how the problem of inappropriate prosecutions involving malfunctioning firearms can be corrected.
   

Source: The below is copied from http://thehighroad.org/showthread.php?t=375570 (visited July 9, 2008)

ATF has developed an alternative procedure for FAXing such requests to the Disclosure Division; click here to access a different letter than can be used as a model for the FOIA request.

ATF has a FOIA link on its home page (www.atf.gov); also, be sure to read the Department of Justice FOIA Reference Guide at http://www.usdoj.gov/oip/04_3.html.

Some people have doubted the value of doing a FOIA on an NFA firearm, believing the information is too limited to be of any real consequence, historically or from the perspective of learning about the firearm. While the personal identifying information of previous registrants is "tax return information" protected from disclosure, the results of a FOIA can and do serve as legitimate protection on establishing the provenance of an NFA firearm. It is becoming more evident, as the demand for quality machine guns continues to outpace the supply, that knowing exactly what gun one has is critical from many perspectives.

From time to time, Bob "Bubba" Naess of Black River Militaria, Cavendish, Vermont, posts information ib various boards about how valuable FOIA information can be in (for example) establishing Curio or Relic status for a machine gun. With his kind permission, NFAOA brings Mr. Naess' thoughts and many years of experience to its readers in his comments below.

There is a wealth of information available from an FOIA search. First is the date of registration, and ATF or other Form of the original registration, if the firearm is in the National Firearms Registration and Transfer Record (NFRTR). For some FOIA requestors, that's the first thing they find out: there is no record of the original registration registered NFA item for which they have approved paperwork. Or they might find out there is no record of the serial number, again for a machine gun which they have correct, approved paperwork.

The date of registration can confirm that the gun is Curio or Relic or an original factory machine gun. In combination with the date, the original registration type will reveal the circumstance under which the machine gun was originally registered. There are half a dozen or more ways it could have been registered between 1934 and prior to the end of the Amnesty of 1968 (which lasted from November 2 to December 1, 1968), some of which are very interesting. It might reveal a date of registration that confirms that it is a WWII bringback machine gun, or it was registered during the time of the commercial DEWAT collector's frenzy of the middle 1950s, or even right after beer wars, or?

The original registration can reveal that the gun was registered after the end of the 1968 Amnesty, when the registrant believed the machine gun was a Curio or Relic or original factory machine gun, by the date of registration and form used to register the original machine gun, it is not a Curio or Relic. This is not uncommon. Date and form can reveal that an alleged registered and reactivated DEWAT is in fact a machine gun that was mistakenly or deliberately falsified as a registered DEWAT, when in reality it was registered by Form 2 post 1968. Also, not uncommon. The original registration form might reveal that a remanufactured machine gun was registered by an individual on a Form 1, post 1968, rather than by a Class II manufacturer. The original registration might reveal that the model of the machine gun is different from that listed on their current paperwork, or the caliber and other specifications. It might reveal that the machine gun is a completely different machine gun, which has been substituted for the machine gun orignally registered. Or, everything might be correctly and exactly the same as the owner's current paperwork.

A FOIA search can mean the difference between getting the full, legitmate value for a machine gun when it is offered for sale, or much less due to the compromised status of the machine gun as disclosed by the registration information in the NFRTR. A FOIA is valuable to confirm that a Curio or Relic machine gun is exactly that, which can make the difference between a sale and no sale. A FOIA, on occasion, has revealed that an allegedly fully transferable machine gun is actually a pre-May sales sample, or even a post-May sales sample.

For a registered DEWAT, copies of subsequent transfers can reveal if the correct paper trail was was observed for reactivation. Copies of subsequent transfers can also reveal if the machine gun was only owned by one or two people, or twenty. A history of a number of Form 5s might reveal that the machine gun has been repaired a number of times, or been in an estate, or in a Police Department inventory.

FOIA is the only access that the private owner has to learn anything about the recorded history of the weapon and, scant as it may appear at the outset, there is a great deal that can be learned from a search, for better or worse.
   

Answer: In July 2007, Mr. Shafizadeh received an "Error Letter" from ATF, stating that an NFA firearm that ATF approved for delivery to Pars International Corporation and which was delivered on April 30, 2007, "was not shown registered" to Pars. As an enclosure to his July 11, 1007, letter, Mr. Shafinzandel enclosed a copy of "an approved ATF Form-3 dated April 12, 2007," further noting: "Since it appears that the transfer to Pars was pursuant to an approved ATF Form 3, I am very concerned that the National Firearms Registration and Transfer Records do not reflect the same."

When Mr. Shafinzandel says he has "written many letters" like this one during the past 25 years, without effect, it is noteworthy that he memorialized his concerns about the accuracy and completeness of the NFRTR in this affidavit (click here to read it) for a case in 1998 being handled by NFA attorney James H. Jeffries III.

Unfortunately, this issue is not addressed in the Department of Justice Inspector General's recent review of the NFRTR, published in June 2007 (click here to read it). Among other reasons, the June 2007 report is a failure because, as attorney Stephen P. Halbrook stated on page 545 of his treatise, Firearms Law Deskbook (2008 edition): " . . . if the owner or the executor of a deceased owner cannot find the registration paperwork, which may be lost or destroyed, and if the record cannot be found in the NFRTR, then a voluntary abandonment of the firearm may be induced, or even a criminal prosecution initiated. On such issues the report is not sufficiently informative." [emphasis added]

Mr. Shafizadeh distinguished himself by going to law school to become an attorney (while an NFA dealer) so he could sue ATF as needed. Long-term NFA attorney David T. Hardy, Esq., wrote up one of attorney Shafizadeh's cases in his firearms blog, Of Arms and the Law (click here to read it). The case, Baranski and Pars International Corporation vs Fifteen Unknown Agents of the Bureau of Alcohol, Tobacco and Firearms, et al. (click here to read it), the United States Court of Appeals, 6th Circuit, ruled that ATF's search warrant was invalid, and that the ATF Special Agents involved are not entitled to qualified immunity from being sued.    

As a former Chairman of the House Subcommittee on Treasury, Postal Service and General Government, Committee on Appropriations, Rep. Lightfoot had responsibility for approving ATF's budget and gained insights into ATF operations. At one Subcommittee hearing in 1996, Rep. Lightfoot heard testimony about issues regarding ATF's classifications of certain AOWs as Curio & Relic firearms (click here about here] to read it); it was the first detailed testimony before the Congress about any NFA Curios & Relic firearms since the NFA was amended under Title II of the Gun Control Act of 1968, effective November 1, 1968.

In his November 20, 2010, letter, Rep. Lightfoot urged incoming freshman members:

"[G]overnment agencies all suffer from the 'Blackbird Syndrome.' That's where several hundred Blackbired as sitting on a telephone wire and then suddenly one of them takes off. No one knows where that one bird is headed but the entire flock takes off behind him.

Agencies work the same way. They watch each other like a Hawk (Blackbird).

Pick one or two agencies for the 'Mr. Clean' treatment. Go after them in high profile. You will be surprised how many other agencies will start to clean up their acts.

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) would be a good place to start. It is one of the smaller agencies, therefore completing the audits and investigations will take less time. It is an agency that has drifted for nearly 6 years without a permanent Director.

ATF was recently featured on CNN regarding an agent who blew the whistle on an illegal wiretap and was rewarded wtih exile to an office with nothing to do for two years.

One of their Special Agents in Charge (SAC) was found by a local reporter to be driving a brand new Cadillas with all the bells and whistles plus a police package. His punishment was to move him to DC Headquarters with a promotion.

Check the millions of dollars paid out in settlements to employees as well as the huge backlog of employee complaints being ignored. Compare this to other larger agencies and you will be shocked at the level of abuse and waste.

Bottom line, it is your responsibility and obligation to make these agencies accoutable to yoy and, by extension through yu, to me the taxpayer.

Demanding accountability is where you can make the biggest difference in the shortest amount of time.

It hasn't been done for years. Focus and cut, change Washington not the other way around."

Rep. Lightfoot has other advice -- "Just because an agency head is sitting across from you in a hearing room do not assume he/she is always telling the truth. As Ronald Reagan once said, 'trust, but verify.'"
   

Record Group 165, Box 208 (8 pages, click here to read)

Memorandum for Colonel Pasco from A.D. Surles, Major General, U.S.A, Director, Bureau of Public Relations, War Department, 22 August 1945
Undated press release for TIME Magazine on Marlene Dietrich and War Trophy firearms
Memorandum on amending War Department Circular 155 by William A. Walker, Colonel, GSC, Deputy Chief, Current Group, OPD, 3 August 1945
Memorandum on amending War Department Circular 155, by Thomas North, Brigadier General, GSC, Chief, Current Group, OPD, 29 July 1945

Record Group 165, Box 307 (13 pages, click here to read)

Memorandum for the Secretary, General Staff, on War Trophies, by Harry H. Mole, Colonel, GSC, Deputy Director of Intelligence, 31 May 1946
Memorandum on maintaining War Department Circular 107, by W. S. Paul, Major General, GSC, Director of Personnel & Administration, 5 September 1946
Summary of regulations on War Trophy firearms, by J. M. Roamer, Colonel, GSC, Director of Intelligence, 27 May 1946
Letter to the Secretary of the Navy on War Trophy firearms, by Robert B. Patterson, Secretary of War, 12 June 1946
Incorrect Classification Sheet, War Department Circular 155, 16 October 1945
Memorandum on disposition of War Trophy firearms, by R. L. Maxwell, Major General, GSC, Assistant Chief of Staff, G-4, 2 March 1946
Letter to Senator Chan Gurney on disposition of War Trophy firearms, by Robert B. Patterson, Secretary of War, 15 February 1946

Record Group 407, Box 2967 (56 pages, click here to read)

Cover sheet for files on "War Trophies, WD Cir. 155, Sec. VI, 1945"
Indexing and filing sheet for War Department Circulars involving War Trophy firearms
Memorandum for the Adjutant General on revision of Cricular 353, by J. M. Roamer, Colonel, GSC, Director of Intelligence, 23 May 1945
War Department Circular 133, 28 May 1945
Memorandum for the Adjutant General on revision of Circular 353, by J. M. Roamer, Colonel, GSC, Director of Intelligence, 29 August 1945
War Department Circular No. 267, 5 September 1945
Memorandum for the Adjutant General on revision of Circular 155, by J. M. Roamer, Colonel, GSC, Director of Intelligence, 16 October 1945
War Department Circular No. 320, 19 October 1945
Memorandum for the Adjutant General on revision of Circular 155, by J. M. Roamer, Colonel, GSC, Director of Intelligence, 26 February 1946
Comment on revisions to Circular 155 and Circular 267, by Earl S. Hoag, Brigadier General, GSC, Deputy Assistant Chief of Staff, G-4, 15 March 1946
Comment on revisions to Circular 155 and Circular 267, by Peter C. Hains, 3rd, Colonel, GSC, Chief, Projects Branch, 2 April 1946
War Department Circular No. 107, 12 April 1946
War Department Circular No. 122, 27 April 1946
Comment on amending Circular 107, by Edward F. Witsell, Maj. Gen., The Adjutant General, 29 April 1947
Comments on amending Circular 107, by Alton C. Miller, Col., CMP, Chief, Provost Division, 11 April 1947
Comments on amending Circular 107, by Geo. S. Price, Colonel, GSC, Chief, Military Personnel Service Group, Personnel & Administrative Division, WDGS, 28 March 1947
Comments on amending Circular 107, Edward F. Witsell, Major General, The Adjutant General, 10 September 1947
Comments on amending Circular 107, by LeR. Lites, Lieutenant General, GSC, Director of Service, Supply and Procurement and K. Al. McCrimmon, Lt. Colonel, GAS, Service, Supply & Procurement Division, 15 September 1947
Memorandum for Record on Expiration of Section IV, WE Circular 107, 10 September 1947
War Department Circular No. 5, 23 September 1947
Memorandum (?) on updating Circular 107, by Cheney L. Bertholf, Colonel, AGD, Chief, Operations Branch, AGO, 2 November 1948
Order extending Circular 107 to 1 May 1950, by Omar N. Bradley, Chief of Staff, United States Army, 19 October 1948
Partial documentation discussing Circular 107, dated November 1948
Letter to Colonel Strecker from John W. Keys, Mineral Springs, Arkansas, 28 July 1945, regarding a confiscated machine gun
Letter to John W. Keyes from W. C. Strecker, Colonel, GSC, Chief, Technical Intelligence Branch, Intelligence Division, regarding the confiscated machine gun, 4 August 1945
Letter to Senator J. W. Fulbright from Wilton B. Persons, Major General, GSC, Chief, Legislative and Liaison Division, offering a replacement machine gun to Mr. Keys, 24 August 1945
Memorandum to the Adjutant General on an apparent violation of Circular 155 involving War Trophy firearms, by Wm. F. Pearson, Colonel, General Staff Corps, Liaison, 29 November 1945
Memorandum to War Department Liaison Officer regarding War Trophy firearms shipped to the United States by Herman H. Goldstein, by Edward F. Witsell, Major General, Acting The Adjutant General, 6 December 1945
Letter to Major General Edward T. Witsell, The Adjutant General, regarding Japanese swords as War Trophies, by James E. Armstrong, Secretary, Committee on Interstate Commerce, United States Senate, 16 November 1945
Letter to Senator Homer E. Capehart regarding War Trophy firearms, by H. N. Gilbert, Major General, Acting The Adjutant General, 21 November 1945
Letter to Senator Walter F. George regarding War Trophy firearms, by William K. Inman, Captain, Hq. 4th Armored Division, APO 254, 21 September 1945
Memorandum for War Department Liaison Officer on "Permission for Servicemen to Retain Captured Weapons," by Edward F. Witsell, Major General, Acting The Adjutant General, 18 October 1945
Communication from Secretary of State to the Secretary of War, regarding "the possibility of German pistols or machine guns" being brought into the United States by merchant seamen, 31 August 1945
Letter to American Embassy, Paris, France, regarding firearms brought to the United States by merchant seamen, by Clara Colford Doreau, undated
Letter to Secretary of State regarding German pistols or machine guns being brought to the United States by merchant seamen and others, by Henry L. Stimson, Secretary of War, 13 September 1945
Memorandum for the Deputy Chief of Staff regarding War Trophy firearms being retained by civilians who served with the United States Army overseas, by LeR. Lutes, Lieutentant General, USA, Commanding, 1 August 1945
Letter to Senator Guy Cordon regarding War Trophy firearms, by John W. Martyn, Administrative Assistant to Colonel J. M. Roamer, Director of Intelligence, ASF, Room 3E 584, Pentagon, 7 May 1945
Index sheet for revision of Circular 353
Letter/Memorandum (?) from Headquarters, Mediterranean Theater of Operations, United States Army, on War Trophy firearms acquired under Circular 3535, by C. W. Christenberry, Colonel, AGD, Adjutant General, 4 March 1945

Record Group 407, Box 2968 (20 pages, click here to read)

War Department Circular No. 217, 1 June 1944
War Department Circular No. 353, 31 August 1944
Summary for record on revision of Circular 353, by F. A. Helleman, Major General, GSC, Director of Supply, ASF, 12 April 1945, 21 April 1945
Comments on revisions of Circular 353, by I. H. Edwards, Major General, GSC, Assistant Chief of Staff, G-3, 21 April 1945
Memorandum (?) discussing civilians being allowed to retain War Trophy firearms, order of the Secretary of War, 5 October 1943
Memorandum by the Secretary of War on "Retention of Captured Materiel Trophies by Military Personnel," 19 July 1943

Note that the "Certificate of Retention and Customs Declaration" and the "Individual Certificate, Affidavites [sic], and Customs Declaration" (the latter has "(APPENDIX 0)" printed in the bottom center of the document and does not appear in this scan) incorporate language stating that the "Theater Commander" has authorized the bearer to import the listed items into the United States. It is unclear whether ATF would regard such declarations as acceptable substitutes for Form 6; however, it would be difficult to argue that firearms imported under the authority of such certifications had not been legally imported.

It is possible that further research will disclose further details of how War Trophy firearms were sent or brought back to the United States by soldiers, under military and other laws and regulations in effect during the World War II era.
   

ATF regards an approved Form 6 as a legitimate registration document for an NFA firearm. Form 6 may or may not have been used in conjunction with machine guns or other NFA firearms that were brought or sent back to the United States by soldiers under provisions of War Department Circulars, in particular No. 217 (effective June 1, 1944) and No. 353 (effective August 31, 1944). Circular No. 155, effective May 28, 1945, prohibited soldiers from bringing or sending machine guns back to the United States. According to these circulars, Bureau of Customs officials collected approved certificates that authorized the bearer to bring or send machine guns back to the United States; it is unclear whether these approved certificates were accepted in lieu of Form 6 or not. At least one MP-40 machine gun that was identified in a certificate under Circular No. 353, described elsewhere in this section, was determined by ATF in 2007 to be a registered NFA firearm, indicating that it had been imported and accepted for registration by some means presumed lawful.

It appears that the first military regulation involving War Trophy firearms during World War II may be "Memorandum No. W570-3-43, 22 July 1943, subject Retention of Captured Material Trophies by Military Personnel," which is referred to in and rescinded by Circular No. 217.
   

Click here to read a copy of War Department Circular 353; and click here to read a copy of War Department Circular 217, both copied at National Archives II, College Park, Maryland, located in Record Group 407, Box 2968.
   

This certificate is of historical interest, in part, because it (1) approved the bringing back of machine guns after Section III of Circular No. 353 was superceded by Section VI of Circular 155, effective May 28, 1945, which prohibited bringing or sending back automatic weapons, and (2) the heir who inherited these MP-40 machine guns contacted ATF in 2007 to arrange for their lawful transfer, and ATF was able to locate a registration for only one of the machine guns. It would seem illogical for the solider to have registered one of the MP-40s, but not the other. Did ATF lose or destroy the registration document for the other MP-40? This soldier had brought back various War Trophies that were not firearms, and appeared diligent in following regulations in six additional approved certificates, two of which were under Circular 217 (effective June 1, 1944), and four of which were under Circular 353 (which superceded Circular 217 effective August 31, 1944).

Because (3) Section 3(b)(3) of Circular 155, Section IV(3)(B)(3), effective May 28, 1945, prohibited "Firearms of the automatic type (or component parts) such as machine guns, submachine guns, or any type gun in which a number of shots or bullets may be discharged with one continuous pull of the trigger," an argument could be made that this bringback under Circular 353 on June 27, 1945, was in violation of existing regulations.

It is difficult to know what to make of this approved certificate, in light of the prohibition then in effect on including machine guns as War Trophy firearms. Did the authorizing official know about the provisions of Circular 155, or just not care? It is probably impossible to know, but the use of an outdated Certificate would tend to support a belief that the authorizing official did not know about Circular 155. Circular 353 states that in the case of soldiers returning with War Trophy items: "The signed duplicate certificate will be taken up by the Customs Bureau; the original will be retained by the bearer." Did Customs officials allow an importation in violation of regulations? There is no reliable way to know. Click here to read a copy of War Department Circular 353, copied at National Archives II, College Park, Maryland, located in Record Group 407, Box 2968.
   

In Record Group 165, Box 307, is a Memorandum dated May 31, 1946, from Harry N. Mole, Colonel, GSC, Deputy Director of Intelligence, for the Secretary, General Staff, in denying the appeal of a civilian to bring back a War Trophy firearm, noted that "several prominent citizens . . . had forfeited enemy firearms to the Bureau of Customs" (including Marlene Dietrich), and no exceptions had been made for them.

In Record Group 165, Box 208, is a copy of a press release about the Dietrich case to TIME Magazine, and an explanatory Memorandum dated August 23, 1945, from A. D. Surles to Col. H. Merrill Pasco, and refers to Col. Pasco's Memorandum on War Trophy firearms to General Marshall, which undoubtedly makes reference to the August 1, 1945, Memorandum cited by Mr. Bland in his article.

Record Group 407, Box 2967, contains a Memorandum for the Deputy Chief of Staff ("Subject: War Trophies") dated August 1, 1945, from LeR Lutes, Lieutenant General, which states: "One of the provisions of these regulations prohibits United States civilians serving with the United States Army overseas from bringing or mailing back of military firearms," and mentions several civilians whose War Trophy firearms were confiscated, including Marlene Dietrich. There is also an inquiry dated August 31, 1945, from the Secretary of State to the Secretary of War, referring to an American citizen married to a Frenchman, who inquired about the "possibility of German pistols or machine guns" being brought to the United States by merchant seamen, and requested the Secretary of War to inform State of "any regulations that may be issued relative to the control of such shipments and any other actions that may be taken." In a letter dated September 13, 1945, Secretary of War Henry L. Stimson noted that War Department Circular No. 155 prohibited shipping or bringing back machine guns, and that War Trophy pistols were limited to one per soldier.
   

This certificate is of historical interest, in part, because it (1) authorizes the bearer to bring back an 8mm German MP43 rifle, which is a machine gun, (2) attests that the items "do not include any items prohibited by Sec. VI, Cir. 155, WD, 28 May 1945," and (3) Section 3(b)(3) of Circular 155, Section IV(3)(B)(3) prohibits "Firearms of the automatic type (or component parts) such as machine guns, submachine guns, or any type gun in which a number of shots or bullets may be discharged with one continuous pull of the trigger."

It is difficult to know what to make of this approved certificate, in light of the prohibition then in effect on including machine guns as War Trophy firearms. Did the authorizing Theater Commander know about the provisions of Circular 155, or just not care? It is probably impossible to know. Because Circular 155 stated that in the case of soldiers returning with War Trophy items, "the signed duplicate certificate will be taken up by an officer of the port of embarkation (and a consolidated certificate accomplished) or by the Customs Bureau or by military authorities at the port of debarkation," it is possible that in some cases "military authorities" allowed the importation nevertheless, possibly sympathetic to their comrades in arms, but this is a conjecture. Customs officials may have been less likely to allow an importation in violation of regulations but, again, there is no reliable way to know. Click here to read a copy of War Department Circular 155, copied at National Archives II, College Park, Maryland, located in Record Group 407, Box 2967.
   

During the latter part of June 2010, ATF created an updated PowerPoint presentation entitled "OVERVIEW OF NATIONAL FIREARMS ACT: ROLL CALL TRAINING," which was made available to all ATF employees (click here to see it). Slide 39 states:

--The NFRTR System is an effective investigative tool in determining whether an inquiry is worth pursuing; however, an "official" NFRTR must be obtained for purposes of "probable cause" for a warrant or for conducting a compliance inspection of an NFA dealer, manufacturer or importer.

--The "official" NFRTR is only available from the NFA Branch.

--Sealed certificates must be requested for Court.

The language in the first bullet of Slide 39 is nearly identical to language in the e-mail message to Deputy Director Melson, and implies that a higher standard of evaluation has now been formally implemented for review of NFRTR evidence than has been in the case in the past. Whether or to what extent ATF has made "unofficial" use of NFRTR data was not addressed in the presentation.

According to documentation released August 3, 2010, in response to a FOIA request (click here to read it) for documents that provided the basis for the "OVERVIEW OF NATIONAL FIREARMS ACT: ROLL CALL TRAINING" slide presentation, it was "developed" on June 16, 2010, for "Special Agent and Industry Operations Investigator personnel," and was accompanied by 22 pages of "LESSON OBJECTIVES." A note on page 22 of the lesson objectives states: "IOIs should not discuss the reconciliation of the NFRTR to the inventory on-hand with the FFL during an inspection. Coordinate reconciliation from inspection findings with the NFA Branch upon returning to the office and include in the inspection report."

On page 18 of the lesson objectives, SAs and IOIs are instructed: "The NFRTR system is an effective investigative tool in determining whether an inquiry is worth pursuing, however, an 'official' NFRTR must be obtained for purposes of 'probable cause' for a warrant or for conducting a compliance inspection of an NFA dealer, manufacturer or importer." The lesson objective also states: "The 'official' NFRTR is only available from the NFA Branch," but, again, no definition of the "official" NFRTR is stated. Defense counsel would be advised, in a case involving apparently discrepant and/or missing NFRTR records, to obtain documentation through Discovery of what is meant by the "official" NFRTR and the implications of the past use of an "unofficial" NFRTR. It might also be useful to ask ATF how it justified including transactions in NFA firearms or devices on the revised Form 4473 in August 2008, inasmuch as it duplicates the record-keeping in the NFRTR and might be viewed as committing waste of public resources. But it seems obvious that NFRTR transactions are also recorded on Forms 4473 because of significant and continuing problems with the accuracy and completeness of the NFRTR. An ATF Special Agent remarked in August 2010: "All I know is the NFRTR is a mess. What to do about it I'm not sure."

Concurrently available with the PowerPoint presentation is a Memorandum dated December 4, 2007, (click here to read it) which states "there has not always been a consistent procedure for reconciling inventory discrepancy reports sent to the NFA Branch by Industry Operations Investigators (IOIs)." The Memorandum also notes that "[t]he NFA Branch has no independent means of validating" NFRTR data "from applications submitted by [firearm] industry members and law enforcement agencies," and that field inspections "serve as an important quality assurance check on NFRTR data not previously validated by an independent, physical examination of a weapon." This latter statement appears to acknowledge that ATF has been aware for some time that its NFRTR description of an NFA firearm or device may not be accurate.

Also of interest in the FOIA release dated August 3, 2010 is what appears to be a page from what ATF refers to as the IOI Handbook ATF H5030.2C, which is used by Industry Operations Investigators (IOIs), but may also be an instruction to what are now called Legal Document Examiners (NFA Branch employees who approve transfer applications). Click here to read it. The page was not, however, specifically attributed to a source by any of the materials in the FOIA, so it could be part of some other type of manual, such as from the NFA Branch or other ATF component. What stands out is the instruction to look in old paper files if the registration was prior to 1983. But how would anybody at ATF know whether the registration was prior to 1983? More baldly, the instruction suggests that not all the registration data from an old paper-based system were transferred into whatever presumably automated/electronic data base system being used now. If ATF is still telling their own folks to check paper records from 1983 and earlier, what does that say about how accurate and complete ATF regards the NFRTR right now?

The other thing that stands out is the reference to firearms manufactured on or before May 19, 1986, a presumable reference to machine guns. The instruction to refuse to accept a manufacturer's copy of a Form 2 is puzzling because (1) ATF returns an approved Form 2 to the manufacturer, along with a notation of the date it was received, and (2) ATF is currently using manufacturer's copies of approved Forms 2 to make corrections in the NFRTR by adding a record of registration, such as are shown in copies of documents from FOIA release 08-726, posted below.

The records of missing NFRTR documents included under FOIA release 08-726 (click here to read them), were not disclosed until after the plea bargain in the Friesen case was completed. Had those documents been timely disclosed (defense counsel had requested them in Discovery, without results), the motion in limine filed in Friesen (click here to read it) would have been more complete. Arguably, ATF's failure to disclose the records of missing NFRTR documents in Friesen constitutes withholding potentially exculpatory evidence (Brady material) and obstruction of justice.

It is also possible a court may find that NFRTR data are unreliable and should be excluded as evidence in criminal cases. In Herring vs. United States (2009) (click here to read it), the Supreme Court decided: "We do not suggest that all recordkeeping errors by the police are immune from the exclusionary rule . . . . If the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests, exclusion would certainly be justified under our cases should such misconduct cause a Fourth Amendment violation." The evidence cited in this section may show that ATF has relied on "systemic error or reckless disregard of constitutional requirements," and thus trigger the exclusionary rule.

Slide 39 also seems to confirm that top ATF management is becoming more aware that the NFRTR would be unable to withstand the scrutiny that certain kinds of federal criminal prosecutions would bring. One logical outcome of this realization is that as defense counsel and U.S. Attorneys become familiar with NFRTR issues, ATF may be careful to present cases that (1) do not use any NFRTR data, or (2) NFRTR data which are presented as evidence have been independently confirmed as valid and reliable. It also seems likely there maybe more seizures and forfeitures instead of criminal charges, and perhaps fewer cases in which a gun owner is encouraged to "voluntarily abandon" an NFR firearm or device, as U.S. Attorneys become more and more aware of the problems with raw NFRTR evidence that has not been independently validated.

Because of long-standing efforts by ATF, the Treasury Department Inspector General, and the Department of Justice Inspector General to willfully cover up materially significant errors in the NFRTR, NFAOA has necessarily been skeptical of implications that these long-standing problems will be resolved, and the NFRTR rendered accurate and complete. Regarding the latter, it is clear that much work remains to be done -- perhaps establishing a new amnesty period. In the meantime, however, it would be remiss of NFAOA not to acknowledge the significant action that Deputy Director Melson has initiated, because it is the clearest action to date by ATF that acknowledges there are problems with the legal validity of some NFRTR evidence.

Further background on this FOIA request is discussed in the entry entitled "ATF uses new form to identify 'discrepancies' in the NFRTR" in this section, and will not be repeated here in the interest of conserving space and in reporting new information. NOTE: Anybody can request copies of these documents. Although ATF is still processing this FOIA, the information released so far is too important to wait upon the release to be completed before making these documents public. To obtain copies, do a FOIA to request the same documents that are being released to Eric M. Larson, P.O. Box 5497, Takoma Park, Maryland 20913, under the release identified as 08-726.

What's new is that ATF has released hundreds of pages of evidence that it has added firearms to the NFRTR after obtaining evidence from Special Occupational Taxpayer (SOT) FFL dealers. It has been common knowledge for a number of years that ATF has been using SOT records to correct its version of the NFRTR. The two documents reproduced here are representative of hundreds of other such documents.

As previously noted, ATF heavily redacted its "Firearms Inspection Worknote: NFA Inventory Discrepancies" document, whose obvious "purpose" was to correct the NFRTR. In releases of documents for this FOIA request, ATF has provided a considerable amount of information that had been previously redacted (click here to read it), thus confirming the evidentiary nature and value of the document.

In this document (click here to read it), ATF has provided evidence that ATF had no record of 3 (three) silencers in an SOT's inventory from 2001 to 2003.

On May 13, 2010, ATF released additional documents, 10 of which are shown to provide some variation in the examples listed so far (click here to read them), in what ATF has termed the 7th release, containing 300 pages. Each page is number stamped using a Bates numbering machine stamp. Page 050 identifies four NFA firearms received by the licensee during 1993 to 1994; note that each of these NFA firearms was "Not on the NFA Br Inventory print/out," and that each of them was in the licensee's inventory on April 25, 2006, indicating that there was no record of any of these NFA firearms in the NFRTR for more than 10 years. For many of the pages (078 to 081), the "Nature of the discrepancy" between the licensee's records and the NFRTR is that the NFA firearms in the licensee's inventory were "Not in NFA Records." If this isn't evidence the NFRTR is incomplete and, therefore, inaccurate, what is? This FOIA contains hundreds of such pages.

For the benefit of SOTs, attorneys and Government officials who may have interest in these materials, the documents ATF has released so far are as listed below, and additional documents will be added as received. Inspection of the records released so far indicate more than 800 instances of an NFA firearm or device in an SOT's inventory, for which the SOT had his or her copy of an ATF-approved Form 2 or Form 3 (or other document issued by ATF), for which there was no record in the NFRTR.

Release #1, June 18, 2009; click here to read it.
Release #2, September 22, 2009; click here to read it.
Release #3, October 5, 2009; click here to read it.
Release #4, October 27, 2009; click here to read it.
Release #5, December 18, 2009; click here to read it.
Release #6, February 27, 2010; click here to read it.
Release #7, May 13, 2010; click here to read it.

In Herring vs. United States (2009), the Supreme Court decided: "We do not suggest that all recordkeeping errors by the police are immune from the exclusionary rule . . . . If the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests, exclusion would certainly be justified under our cases should such misconduct cause a Fourth Amendment violation." Reliance on "systemic error or reckless disregard of constitutional requirements" would trigger the exclusionary rule. Click here to read the decision.

While in theory ATF might be able to correct its version of the NFRTR, given enough compliance inspections, there's a vaster hole in that logic than can ever be addressed. The reason is that ATF has no means of making these sorts of corrections in many instances where ATF has approved transfers of NFA firearms or devices between unlicensed transferors and transferees who live in the same state, and are not required to keep records. What happens when James buys a machine gun from Robert in 1985 (or some other year); ATF approves that transaction; Robert takes possession of the machine gun in a timely way; Robert loses his copy of the Form 4 because there was a house fire, flood like Katrina, or just plain human error, and asks ATF for a replacement copy. ATF checks the NFRTR and finds only that the machine gun is registered to James, who died in 1987; whose relatives/survivors recall "Yes, there were some guns, but we don't know anything about them, or in fact anything about guns because guns don't interest us." Where does that leave Robert? The insidious thing about this is that many people who are likely to be victimized are people who only did their best to follow the law. An ATF Special Agent does a lookup on, for example, an amnesty gun that the owner (or heir) recall was registered, and the single piece of paper at ATF's end has vanished, lost or destroyed, or cannot be found. Virtually nobody fights an ATF Special Agent suggesting that "charges here can be avoided if you voluntarily abandon the weapon to ATF, but remember the statute of limitations on your violation is 3 years." The cost of fighting a seizure and forfeiture quickly exceeds the value of the firearm, and is a serious personal disruption.

What else about this? It is worth noting that ATF refused to release any of these Work Papers in the Friesen case, and their significance is clear in the Motion in Limine filed in the case (click here to read it), because they provide valid and reliable evidence that demonstrates the legal basis for the Department of Justice Inspector General's finding that ATF has added firearms back into the NFRTR after losing or destroying NFA paperwork. The legal repurcussions are frightening, in the sense that at least some innocent citizens have been unlawfully deprived of their valuable firearms, some of them heirloom firearms used by a grandfather, father, and son; irreplaceable family artifacts. The American people deserve a better standard of justice by a federal law enforcement agency.

As noted elsewhere in discussion on this site, the Department of Justice Inspector General's "review" of the NFRTR states on page 31: "If the NFA weapons owner [sic] can produce the registration paperwork, ATF assumes the error is in the NFRTR and fixes it in the database." This condition apparently fulfills a Department of Justice standard for requiring a new amnesty period. Specifically, if ATF determines that "a particular individual or weapon is registered" and ATF finds that its "files are missing," then "the only solution would be to declare another amnesty period (click here to read the document).

Finally, while the NFAOA "Resources" page has taken a necessarily critical view of ATF's institutional conduct, ATF should be publicly credited for having the courage to release these documents. Why ATF has chosen to release documents that will probably impeach the NFRTR in Federal District Court at some point, is unclear. That should not be a reason fail to praise the good citizenship and respect for Constitutional processes that ATF as an institution has exhibited by releasing these documents. After the FOIA distribution and appeals are complete, all of the FOIA documents will be put into PDF files and posted on the NFAOA "Resources" page.

The sensitivity with which ATF regards this "Firearms Inspection Worknote: NFA Inventory Discrepancies" bears some additional examination, because it demonstrates the lengths ATF is willing to go to deny a complete and reasonable response to a legitimate FOIA request, as follows. First, the initial FOIA letter dated January 24, 2007 (click here to read it) clearly states a request for the foregoing form, as well as the results of analyzing information gathered from it. Note that the FOIA requests training instructions and guidance to ATF staff on use of the form, as well as what use ATF has made of the information collected. Second, in response to ATF's initial contention that the form requested could not be located, a follow-up Administrative Appeal dated April 14, 2007 (click here to read it) identifies the "Firearms Inspection Worknote: NFA Inventory Discrepancies" and clarifies that it does not have an ATF Form number, possibly because ATF intended to try and use the lack of a form number to rebuff FOIA requests. ATF, nevertheless, provided the form. Third, in a letter dated October 2, 2007 (click here to read it), Janice Galli McLeod, Associate Director, Office of Information and Privacy, Department of Justice, stated: "After carefully considering your appeal, I am affirming ATF's action on your reqeust. ATF conducted a search for records responsive to your request and was unable to locate any records pertaining to the National Firearms Registration and Transfer Record documentation you referred to in your request. I have determined ATF's response was correct."

Associate Director McLeod's statement may be reliable and evidence that both the Department of Justice and ATF have improperly denied a legitimate FOIA request. The reason is that it is hard to conclude that documents which describe how ATF personnel are supposed to record and, presumably, follow up after encountering "discrepancies" in NFA records, particularly when the "purpose" of the form is to "reconcile discrepancies" in the NFRTR. In fact, when ATF personnel encounter a "discrepancy" in the records, they are required to assign each "discrepancy" a "control number," and forward the information to the National Firearms Act Branch. Associate Director McLeod's contention that no documents within the National Firearms Act Branch are responsive to the FOIA request is unworthy of belief.

This article is probably far from the last word on the NFRTR, despite its comprehensiveness, because the NFRTR has yet to face an appropriate judicial review in an applicable case; and because a topic as complicated as the NFRTR will surely be explored and probably expanded by others. For example, the program overseen by U.S. military authorities during World War II that allowed some soldiers to bring or send machine guns back to the United States (under War Department Circular 155 of 28 May 1945 or War Department Circular 353 of 31 August 1944, among others) has yet to be thoroughly researched. How were those machine guns brought or sent to the United States by military authority that was apparently separate from provisions of the National Firearms Act that applied to the importation of NFA firearms? The historical record is, as yet, not clear, and needs to be cleared up. The reason is that machine guns are being encountered in the estates of deceased World War II veterans, accompanied by valid paperwork, such as a certified "capture" paper (click here to see an example).

This document -- a Memorandum to the ATF Director from the ATF Chief Counsel -- was written in response to a FOIA filed by a collector for information about firearms registered in the National Firearms Registration and Transfer Record (NFRTR). Like some documents that ATF releases, some information that ATF intended to redact was not redacted; in this case, at the bottom of page 5, ATF failed to censor out the name of the original requestor, one Mr. Smith, and the name of the entity at issue, Auto-Ordnance Corp.

This Memorandum is doubly informative, because it (1) discusses ATF rationale for withholding certain information that it deems to be "tax return" information, and (2) describes the organization of the NFRTR in a fairly comprehensive manner, enabling a better understanding how the NFRTR records are organized.

Importantly, on page 7, the Memorandum states that "tax return" information "does not include data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer." Further, on page 9, the Memorandum observes: " . . . the courts have held that the Secretary has no discretion under 6103(c) to withhold a return from the taxpayer's designee." This determination is significant for heirs, executors, personal representatives and similar persons authorized to receive and/or distribute the assets of a deceased NFA firearm registrant's estate, as well as an attorney whom the registrant may authorize Power of Attorney on his or her behalf. It should be noted that the "Secretary" referred to the Secretary of the Treasury, but now refers to the Attorney General since ATF was transferred to the Department of Justice in 2003.

This Memorandum may be cited as: "Memorandum to Director, ATF, from ATF Chief Counsel regarding Freedom of Information Act Appeal of [redacted] dated August 18, 1980, bearing symbols CC-18,778 RMT."    

Answer: In July 2007, Mr. Shafizadeh received an "Error Letter" from ATF, stating that an NFA firearm that ATF approved for delivery to Pars International Corporation and which was delivered on April 30, 2007, "was not shown registered" to Pars. As an enclosure to his July 11, 1007, letter, Mr. Shafinzandel enclosed a copy of "an approved ATF Form-3 dated April 12, 2007," further noting: "Since it appears that the transfer to Pars was pursuant to an approved ATF Form 3, I am very concerned that the National Firearms Registration and Transfer Records do not reflect the same."

When Mr. Shafinzandel says he has "written many letters" like this one during the past 25 years, without effect, it is noteworthy that he memorialized his concerns about the accuracy and completeness of the NFRTR in this affidavit (click here to read it) for a case in 1998 being handled by NFA attorney James H. Jeffries III.

Unfortunately, this issue is not addressed in the Department of Justice Inspector General's recent review of the NFRTR, published in June 2007 (click here to read it). Among other reasons, the June 2007 report is a failure because, as attorney Stephen P. Halbrook stated on page 545 of his treatise, Firearms Law Deskbook (2008 edition): " . . . if the owner or the executor of a deceased owner cannot find the registration paperwork, which may be lost or destroyed, and if the record cannot be found in the NFRTR, then a voluntary abandonment of the firearm may be induced, or even a criminal prosecution initiated. On such issues the report is not sufficiently informative." [emphasis added]

Mr. Shafizadeh distinguished himself by going to law school to become an attorney (while an NFA dealer) so he could sue ATF as needed. Long-term NFA attorney David T. Hardy, Esq., wrote up one of attorney Shafizadeh's cases in his firearms blog, Of Arms and the Law (click here to read it). The case, Baranski and Pars International Corporation vs Fifteen Unknown Agents of the Bureau of Alcohol, Tobacco and Firearms, et al. (click here to read it), the United States Court of Appeals, 6th Circuit, ruled that ATF's search warrant was invalid, and that the ATF Special Agents involved are not entitled to qualified immunity from being sued.    

In this 2007 letter, Dr. Scheuren reiterates and adds to a similar letter he wrote in 2000, when he first responded to a Congressional request to evaluate ATF's response to three questions asked by the Subcommittee on Treasury, Postal Service, and General Government Appropriations (click here to read the Subcommittee's questions; ATF's responses; and his May 23, 2000, letter evaluating ATF's responses). Dr. Scheuren said: "ATF has serious material weaknesses in its firearm registration system which it has yet to acknowledge," and that his reading of the 1998 audit reports on the NFRTR by the Treasury Department Inspector General (click here and here to read each report) "suggests that very serious problems were uncovered in ATF's recordkeeping systems. In fact, in my long experience, I cannot think of an instance where poorer results were obtained."

Stephen P. Halbrook, a nationally recognized expert on firearms law, similarly then advised the Subcommittee to " . . . investigate . . . further . . . [and] . . . [u]nless and until BATF can conform its records to acceptable standards of accuracy, the Subcommittee should consider legislation to prohibit use of the NFRTR database in civil and criminal proceedings." Click here to read his letter.

What errors are causing these concerns? Answer: the "critical errors" summarized in this table (click here to read it) of NFRTR errors http://www.nfaoa.org/documents/SummaryNFRTRerror1.pdf, taken from public documents and long known to the Government. ATF defines "critical errors" as those which impact the mission of ATF, such as incorrect firearm serial numbers. In fact, all of these "critical errors," and "critical error" rates, were defined and reported by the Government.

Dr. Scheuren is in some ways an unlikely spokesman for the firearms community, because he isn't. In fact, Dr. Scheuren (1) owns no firearms, (2) is not involved in gun control one way or the other, (3) is distinguished by pro bono work on international human rights, (4) takes action to uphold professional standards within the statistical profession; and (5) is that rare combination of public servant who is informed by executive experience with federal statistical agencies, and equally respected in the private sector. His resume (click here to read it; it's worth reading again) shows that he's as good as they come.    

In this 2007 letter, Dr. Scheuren reiterates and adds to a similar letter he wrote in 2000, when he first responded to a Congressional request to evaluate ATF's response to three questions asked by the Subcommittee on Treasury, Postal Service, and General Government Appropriations (click here to read the Subcommittee's questions; ATF's responses; and his May 23, 2000, letter evaluating ATF's responses). Dr. Scheuren said: "ATF has serious material weaknesses in its firearm registration system which it has yet to acknowledge," and that his reading of the 1998 audit reports on the NFRTR by the Treasury Department Inspector General (click here and here to read each report) "suggests that very serious problems were uncovered in ATF's recordkeeping systems. In fact, in my long experience, I cannot think of an instance where poorer results were obtained."

Stephen P. Halbrook, a nationally recognized expert on firearms law, similarly then advised the Subcommittee to " . . . investigate . . . further . . . [and] . . . [u]nless and until BATF can conform its records to acceptable standards of accuracy, the Subcommittee should consider legislation to prohibit use of the NFRTR database in civil and criminal proceedings." Click here to read his letter.

What errors are causing these concerns? Answer: the "critical errors" summarized in this table (click here to read it) of NFRTR errors http://www.nfaoa.org/documents/SummaryNFRTRerror1.pdf, taken from public documents and long known to the Government. ATF defines "critical errors" as those which impact the mission of ATF, such as incorrect firearm serial numbers. In fact, all of these "critical errors," and "critical error" rates, were defined and reported by the Government.

Dr. Scheuren is in some ways an unlikely spokesman for the firearms community, because he isn't. In fact, Dr. Scheuren (1) owns no firearms, (2) is not involved in gun control one way or the other, (3) is distinguished by pro bono work on international human rights, (4) takes action to uphold professional standards within the statistical profession; and (5) is that rare combination of public servant who is informed by executive experience with federal statistical agencies, and equally respected in the private sector. His resume (click here to read it; it's worth reading again) shows that he's as good as they come.    

Answer: In July 2007, Mr. Shafizadeh received an "Error Letter" from ATF, stating that an NFA firearm that ATF approved for delivery to Pars International Corporation and which was delivered on April 30, 2007, "was not shown registered" to Pars. As an enclosure to his July 11, 1007, letter, Mr. Shafinzandel enclosed a copy of "an approved ATF Form-3 dated April 12, 2007," further noting: "Since it appears that the transfer to Pars was pursuant to an approved ATF Form 3, I am very concerned that the National Firearms Registration and Transfer Records do not reflect the same."

When Mr. Shafinzandel says he has "written many letters" like this one during the past 25 years, without effect, it is noteworthy that he memorialized his concerns about the accuracy and completeness of the NFRTR in this affidavit (click here to read it) for a case in 1998 being handled by NFA attorney James H. Jeffries III.

Unfortunately, this issue is not addressed in the Department of Justice Inspector General's recent review of the NFRTR, published in June 2007 (click here to read it). Among other reasons, the June 2007 report is a failure because, as attorney Stephen P. Halbrook stated on page 545 of his treatise, Firearms Law Deskbook (2008 edition): " . . . if the owner or the executor of a deceased owner cannot find the registration paperwork, which may be lost or destroyed, and if the record cannot be found in the NFRTR, then a voluntary abandonment of the firearm may be induced, or even a criminal prosecution initiated. On such issues the report is not sufficiently informative." [emphasis added]

Mr. Shafizadeh distinguished himself by going to law school to become an attorney (while an NFA dealer) so he could sue ATF as needed. Long-term NFA attorney David T. Hardy, Esq., wrote up one of attorney Shafizadeh's cases in his firearms blog, Of Arms and the Law (click here to read it). The case, Baranski and Pars International Corporation vs Fifteen Unknown Agents of the Bureau of Alcohol, Tobacco and Firearms, et al. (click here to read it), the United States Court of Appeals, 6th Circuit, ruled that ATF's search warrant was invalid, and that the ATF Special Agents involved are not entitled to qualified immunity from being sued.    

Regulations involving pistol-gripped shotguns were included in the first regulations implementing the NFA, published in the INTERNAL REVENUE BULLETIN, Cumulative Bulletin XIII-2, July-December 1934, pages 433-440 (click here to read them). In particular, S.T. 772 states: "A so-called shotgun with a pistol grip, which fires a shot shell, falls within the class of 'any other weapon' . . . [i]f such a gun is capable of being concealed on the person." S.T. 779 addresses classification of a firearm that is "a single shot, single trigger, and single hammer gun with a pistol grip, and is chambered for shot loads. It is so compact that it may be strapped over the shoulder, either over or under the coat." S.T. 779 further states that "The test described by the [National Firearms] for determining whether a particular weapon comes within the classification of 'any other weapon' . . . is not the length of the barrel, but whether the weapon is capable of being concealed on the person," and that the foregoing gun met the definition of "any other weapon" under the NFA.

When the Congress amended the NFA under the National Firearms Act of 1968 (also known as Title II of the Gun Control Act of 1968), it defined a "destructive device," in part, as "Any weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes." Source: 26 U.S.C, Section 5845(f). "Secretary" refers to the Secretary of the Treasury; however, the Attorney General began performing all functions of the Secretary of the Treasury with respect to firearms after ATF was transferred to the Department of Justice on January 24, 2003.

Until the November 2009 article, and a subsequent ATF Letter Ruling, what many people have called pistol-grip shotguns may have occupied a gray area under the GCA and the NFA. These two recent ATF documents appear to have two effects (1) classifying what ATF now term a "Pistol Grip Firearm" as a Destructive Device, and (2) clarifying that certain Destructive Device firearms have probably been incorrectly classified by ATF as AOWs. Both of these issues will be discussed below, but some historical context will help rendered the explanations more understandable.

The Congress did not define "shotgun" in the original NFA in 1934. In 1960, the Congress amended the NFA to establish a 26" overall length requirement for a rifle or shotgun; a 16" barrel length standard for a rifle; and a $5 transfer tax for all "any other weapon" NFA firearms (click here to read it). Before the 1960 Act, both rifles and shotguns were required to have barrel lengths of 18" (there was no overall length requirement), and AOW transfers were $200. ATF adopted the 26" overall length requirement for a shotgun or rifle as a criteria for "concealibility" to uniformly implement the AOW standard (a rifle or shotgun with less than a 26" overall length, regardless of the length of the barrel, was considered an AOW). It appears that since 1960, ATF may have viewed what many people call a pistol-grip shotgun as a "shotgun" as long as it was at least 26" in overall length and had a barrel or barrels at least 18" in length. Since 1960, various manufacturers have manufactured millions of pistol-grip shotguns, and ATF has regulated them as Title I firearms; and in 1968, ATF did not classify any of them as Destructive Devices, and apparently committed a legal error by failing to do so.

In response to a request for clarification of the law, ATF advised a firearms manfacturer in a letter dated July 20, 2010 (click here to read it): " . . . in an effort to achieve consistent application of the law, ATF utilizes 26 inches as the presumptive standard to determine whether a firearm is 'capable of being concealed on the person' [and] "barrel length is considered only to the extent that it constitutes a portion of the overall-length measurement of a firearm." ATF also stated "because the [AOW] statute does not expressly indicate any overall length, a firearm measuring greater than 26 inches in length may properly be classified as an . . . AOW . . . if it otherwise satisfies the definition of an AOW and there is evidence that the firearm in question was actually concealed on a person [italics in original]."

The foregoing discussion, played out in Federal District Court in a criminal case, might well cause millions of what ATF now terms a "pistol grip firearm" to be reclassified as an "Any Other Weapon" if any such firearms are concealed on a person. Such a reclassification could occur, for example, in a criminal case if a defendant is found guilty of concealing a "pistol grip firearm" on his or her person. But that is not the only legal complication; the reason is that if the bore diameter of "pistol grip firearm" exceeds 1/2", the firearm is a Destructive Device..

ATF's stated position that a "pistol grip firearm" is not a "shotgun" also affects the classification of certain AOWs, because it appears they are Destructive Devices. For example, various "witness protection"-type shotguns with pistol grips and a barrel or barrels less than 18" in length, have been commercially manufactured and sold as AOWs for decades, typically in 20 gauge or 12 gauge variations. Under the NFA, as we have seen, a Destructive Device is defined as: "Any weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes." Consequently, the foregoing AOWs appear to be Destructive Devices; what else could they be? This is because the only relevant exception exception under the NFA is "a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes."

If one takes ATF's October 27, 2010 letter at face value, it means if ATF decides that a person has concealed a "pistol grip firearm" (regardless of its barrel length) on him- or herself, ATF could legally classify it as an "Any Other Weapon" subject to the NFA. And if the bore diameter of the "pistol grip firearm" exceeds 1/2", the firearm is a Destructive Device. Recall that the 12 gauge Streetsweeper with a barrel 12" in length, equipped with a pistol grip, was sold as an AOW; and that when ATF reclassified Streetsweeper shotgun (originally a Title I firearm) a Destructive Device in 1994, the AOW version was also reclassified as a Destructive Device.

ATF committed a serious legal error in its October 27, 2010, letter. The reason is that ATF determined in writing that a 12 gauge pistol grip firearm with an overall length of 26-1/4" and a barrel 17" in length "is a firearm subject to the Gun Control Act of 1968 (GCA), [but] it is not a 'firearm' as defined by the NFA." Since ATF determined that a "pistol grip firearm" is not a "shotgun," in this instance the firearm is clearly a Destructive Device, because its bore diameter exceeds 1/2". ATF disregarded the Destructive Device definition, which applies to this firearm.

But consider the much vaster implications of ATF's announcement in the 2009 FFL Newsletter, which states that "pistol grip firearms" are not "shotguns." There are millions of 20 gauge and 12 guage "pistol grip firearms" that have been lawfully owned by millions of law-abiding citizens for many years, and they are manufactured by a variety of firearms manufacturers. If ATF ruled these firearms to be NFA firearms (all gauges greater than .410 have bore diameters that exceed 1/2", and consequently would be Destructive Devices), they would be instantly and involuntarily converted into illegal contraband. Moreover, under current law, there is no legal mechanism to enable their continued legal possession except by (1) registering them as NFA firearms during an amnesty established by the Attorney General, or (2) a change in the NFA law, which must be enacted by the Congress and signed by the President. Just because ATF hasn't stated that certain "pistol grip firearms" are Destructive Devices, doesn't mean they aren't Destructive Devices

ATF has created a potential legal conundrum for millions of law-abiding gun owners by stating that that certain "pistol grip firearms" are not shotguns, because apart from the "Any Other Weapon" issue just discussed, ATF has not acknowledged the fact that these firearms are Destructive Devices under the NFA. Again, taken at face value, a "pistol grip firearm" with a bore diameter larger than 1/2" in diameter is a "Destructive Device" under the NFA, unless the Attorney General determines that it is "a shotgun . . . generally recognized as particularly suitable for sporting purposes." By determining that a "pistol grip firearm" is not a shotgun, it is difficult to understand that if the firearm has a bore diameter exceeding 1/2", why ATF would not classify it as a Destructive Device under current law."

Keep in mind that (1) ATF cannot change federal law with a Letter Ruling or any other type of ruling, and (2) a Federal District Judge, confronted with the Destructive Device provision and ATF's public position that a "pistol grip firearm" is not a shotgun, would not instruct a Jury in any Federal District Court to do anything except follow the law. A Federal District Judge has a duty to instruct a Jury about the law -- just because ATF may not have properly enforced the law doesn't mean that the Judge will ignore the law as well. Under the current NFA statute, "pistol grip firearms" whose bore diameter exceed 1/2" are Destructive Devices; they cannot be classified as anything else unless there is a change in the statute.

In the table below, various configurations of "Pistol Grip Firearms" are classified under the GCA or the NFA, depending on (1) their bore diameters, and (2) whether the "Any Other Weapon" category is legally appropriate.

Classifications of various "Pistol Grip Firearms" under the GCA or NFA
Example "Pistol Grip Firearm"	Gauge or bore diameter	Classification under GCA / NFA
26" overall, 18" barrel(s)	.410	GCA: Pistol Grip Firearm
26" overall, 18" barrel(s)	Up to .50 (1/2")	GCA: Pistol Grip Firearm
26" overall, 18" barrel(s)	Exceeds .50 (1/2"), and includes all gauges larger than .410	NFA: Destructive Device
20" overall, 14" barrel(s)	.410	NFA: Any Other Weapon
20" overall, 14" barrel(s)	Up to .50 (1/2")	NFA: Any Other Weapon
20" overall, 14" barrel(s)	Exceeds .50 (1/2"), and includes all gauges larger than .410	NFA: Destructive Device

   

According to one source, the 1914 Act "profoundly changed the nature of the narcotics problem in the United States. This law was intended as a revenue and control measure and was not designed to penalize the user of the drug, to whom no direct reference was made. The enforcement of the law was entrusted to the Bureau of Internal Revenue of the U.S. Treasury Department. It was evidently assumed or hoped that by requiring all persons who handled drugs to register with the government and maintain records the flow of drugs would be subject to public control. The act applied equally to cocaine and to opiates and made no distinctions between them. It required all persons who imported, manufactured, produced, compounded, sold, dealt in, dispensed, or gave away any derivative of opium or of coca leaves (cocaine) to register with the Collector of Internal Revenue, to pay special taxes, and to keep records of their transactions. Preparations containing minute quantities of cocaine or of opiates were exempted from the regulations." (See http://www.drugtext.org/library/books/adopiates/chapter10.htm, visited February 6, 2008).
   

These lengthy hearings were published in two Parts, as noted and summarized below. While there is continual reference to proposed amendments to the National Firearms Act, the bulk of the testimony and debate pertained to Title I firearms. Interestingly, there is some interchange between proposals to amend the National Firearms Act and the Federal Firearms Act, regarding the treatment of "destructive devices," which were ultimately put under the NFA because they were not deemed to have a "sporting purpose." Sections of the hearings pertinent to the NFA have been identified below.

* * *

"Proposed Amendments to Firearms Acts." Hearings before the Committee on Ways and Means, House of Representatives, 89th Congress, 1st Session. Proposed Amendments to the National Firearms Act and the Federal Firearms Act, July 13, 13, 14 19, 20, 21, 22, 23, 26, 27 and 28, 1965. Part 1. Washington, D.C.: U.S. Government Printing Office, 1965. [pages 1 to 355; click here to read]

Pages 3 to 25 summarize the need to "Bring under Federal control interstate shipment and disposition of large caliber weapons such as bazookas and antitank guns, and destructive devices such as grenades, bombs, milliles, and rockets," curb the flow into the United States of surplus military weapons and other firearms not suitable for sporting purposes, and "increase to twice the present rate of all taxes under the National Firearms Act of 1934," noting that "the principal rates have not been changes since the original enactement of the act in 1934," and that "it is necessary to increase the rates in order to carry out the purposes of the act."

Also of interest is a provision for a registration period to bring "destructive devices" under the NFA, whereby persons possessing such devices "shall have 30 days from the effective date of this act to register such firearm, and that no liability (criminal or otherwise) shall be incurrred in respect to failure to so register under such section prior to the expiration of such 30 days. This provision is necessary so that a person who possesses a firearm which is brought under this coverage of the National Firearms Act, by reason of the amendments to such act which are contained in the first section of the bill, will be afforded a reasonable opportunity to comply with the registration requirements contained in subection 5841 of the Internal Revenue Act of 1954." The 1965 Treasury Department regulations on NFA firearms are reproduced in full on pages 138-150. Note that persons could register unregistered NFA firearms by filing Form 1 and identifying the firearm; there was no requirement to provide photographs, fingerprints, or certification by a law enforcement entity.

Pages 73-83 contains a detailed discussion of the constitutionality of the proposed legislation, within a context of the 2nd Amendment; further discussion of 2nd Amendment issues appears on pages 202-218.

One of the bills to amend the NFA lists proposed tax increases (from $200 to $200, and from $5 to $10); see pages 174-175. There is a propose definition of "antique" firearm on pages 177-178 based on designs used before 1870, and a provision for Secretary to remove from the NFA any device which the Secretary finds is not likely to use as as weapon. On page 185, the NRA proposed that an "antique" firearm included those manufactured prior to 1898, which used loose powder and ball, and firearms with obsolete ammunition. Page 350-351 further clarifies 1898 as "the approximate date of transition in ignition from black powder to the current modern smokeless powder." On page 200, there are listed objections to "sporting purpose" and other language regarding importations as vague and said they woud "grant the Secretary of the Treasury the authority to do away with all imports.

* * *

"Proposed Amendments to Firearms Acts." Hearings before the Committee on Ways and Means, House of Representatives, 89th Congress, 1st Session. Proposed Amendments to the National Firearms Act and the Federal Firearms Act, July 13, 13, 14 19, 20, 21, 22, 23, 26, 27 and 28, 1965. Part 2. Washington, D.C.: U.S. Government Printing Office, 1965. [pages 357 to 717; click here to read]

While the increased regulation of NFA firearms is prominently featured in the 1965 hearings, there is little testimony from people who would be affected by this legislation. One exception is the testimony of one Leslie E. Field, who was then a class 4 dealer under the NFA. As Mr. Field puts it: "A class 4 dealer is one of that extremely small group of persons -- some years ago there were only 75 of them -- who pays the dealers' occupational tax of $200 and is able therefore to handle weapons under the act," further noting "it may be estimated that less than 100 persons an dbusiness organizations in the close to 200 million population of the United States have chosen to obtain licenses, which does not sound like a large, frivolous group." (pages 449-450) Mr. Fields makes detailed observations about the lack of criminal use of large, obsolete military ordnance, adding that "no cannon has been used in bitter family arguments, and the juvenile gangs are apparently stilll indifferent to their insidious charm" (page 451). and further suggests that the Congress ought to "avoid getting into the area of regulating a speculative crime."

Interestingly, Mr. Fields recognized that ATF did not have sufficiently competent technical personnel, and suggested that the Congress consider "setting up within the Alcohol Tax Unit, of a new, and larger, firearms division, and providing an attorney within the section, together with a definite liaison to a relevant agency of the Department of the Army to provide the section with technical assistance. . . . "What the Alcohol Tax Unit needs in our opinion is, No. 1, a definite technical liaison and trade technical personnel in the analysis of firearms which it does not have and which it has to borrow form the armed services very often to write opinions and it needs an emphasis within the Treasury Department, an emphasis of its importance." (pages 460-461).

Other testimony was given regarding the Chicago Palm Pistol, an unusual "any other weapon" firearm that was designed to fire ammunition that had become obsolete, and "the viciousness of the Alcohol and Tobacco Tax people's action" in charging a California dealer with possessing three unregistered Chicago Palm Pistols, although the dealer prevailed in court and ATF had to return the pistols. (pages 472-473). This case involved "one Minneapolis palm protector pistol and two Chicago palm protector pistols," and is further described on pages 490-491. In response to the court ruling, then-ATF Director Dwight E. Avis advised the National Rifle Assocation that ATF would regard the ruling as valid "only within the jurisdiction of said court, specifically the southern judicial district of California," and that Revenue Ruling 55-44, published on January 24, 1955, in Internal Revenue Bulletin No. 4 (Rev. Ruling 55-44, C.B. 1955-1, 29) takes precedence elsewhere."

Pages 618-619 contain a letter from the Connecticut State Pistol and Revolver Association, Inc., criticizing ATF for "numerous instances of abuse by Treasury agents by harasment [sic] of legitimate dealers, collectors, and metchants who deal in the welded-up and useless ornaments known as dewats. The history of harassment, embarrassment and senseless criminal and civil prosecutions of these people reads like a chapter from the numerous books on tyranny and its successful imposition." On pages 663-664, Washington Arms Collectors, Inc., expressed concerns about "tens of thousands of antique U.S. Army and Navy single-shot cartridge rifles and pistols notably U.S. rifle models 1868, 1869, 1870 and 1871, and numerous other cartridge single-shot rifles, not to mention English double barrel rifles, all having a bore of one-half inch or more in diameter. The former (antique rifles and pistols) are particularly dear to thousands of colllectors of U..S. martial and historical arms," and suggested language to exempt them from the proposed definition of a "destructive device." On page 667, another the President of the Memphis Gun Collector's Association stated that "most weapons used in the Civil War, Indian Wars, and Revolutionary War in this country have bores of 1/2 inch or larger in diameter." Another commentor stated that the NFA "destroyed the American genius for building superior automatic weapons, and therefore contributed directly to the deaths in combat where tactical conditions caused it, of American soldiers equipped with indifferent arms." (page 682)
   

Following the assassinations of the Rev. Martin Luther King, Jr., and Senator Robert F. Kennedy in the spring of 1968, Congressional hearings were held to advocate for a system of the national registration of firearms, a measure endorsed by then-President Lyndon B. Johnson. Under S. 3604, "any person who owns or possesses any firearm, or who transfers any firearm to any other person by whatever means," would be required to register the firearm with the Federal Government within 270 days after passage of the legislation, and pay a fee of $1 per firearm for doing so. The legislation also provided for a 180 day amnesty period that would allow any person who didn't want to register a firearm to surrender it to any Federal, State or local law enforcement official without penalty, but the provision offered no immunity from prosecution to persons charged with a firearm offense. Under S. 3634, a similar registration system would be established; personal information required would be "the name, age, address, and social security nmber, if any "for both transferor and transferee," and for the firearm "the name of the manufacturer, the caliber or gage [sic], as appropriate, the model and the type, and the serial number identification, if any, of the firearm," and all firearm and ammunition possession would thereafter be licensed. Persons would be required to report lost or stolen firearms to the Secreatary of the Treasury.

There is an interesting, but brief, discussion on page 64 by then Sen. Roman Hruska about S. 1854, a bill he introduced in 1967 that "would make it unlawful for a person under 21 years of age to possess a National Firearms Act firearm," which was submitted for comment to the Treasury Secretary and the Attorney General. The latter advised Sen. Hruska: "It seems doubtful that . . . provision can be justified under the taxing or commerce powers, or under any other power enumerated under the Constitution for Federal enactment. Consequently, the Department questions the advisability of including in the measure a measure which could be construed as an usurpation of a police power reserved to the states by Article 10 of the United States Constitutional Amendments." Then -Attorney General Ramsey Clark disagreed, stating: "In my judgment, the Congress clearly has the power under the commerce clause, and also under the delegated powers of the Constitution which empower the Congress to enact criminal laws for the public safety, and to do all things necessary and proper to enforce those laws." On pages 80-87, Attorney General Clark is engaged by then Sen. Strom Thurman, who questioned the legal authority of the federal government to require registration at the state level, arguing that the commerce clause does not apply to intra-state commerce. The Treasury Department estimated the cost of registering all guns in the United States (75 million, at the time) to be $25 million,and then $22 to $23 million annually thereafter to maintain the registration system.

On page 119, then-IRS Commissioner Sheldon S. Cohen discusses "the effect of recent Supreme Court decisions concerned with registration and the constitutional right against self-incrimination," referring to Haynes vs. United States, 390 U.S. 85; Marchetti vs. United States, 390 U.S. 39; and Rossi vs. United States, 390 U.S. 62, "all decided on January 29, 1968." He discusses the intended effects of a amnesty period on pages 122. Of interest is a section-by section analysis of proposed amendments to the National Firearms Act; the $200 transfer tax would be increased to $400, and the $5 transfer tax to $20; and the making tax from $200 to $400. The legislation included provision for a 30-day amnesty period, and a new provision to remove collector's items (other than a machine gun or destructive device) from the NFA; and a discussion of the intentions of the provision to preclude use of registration information in criminal prosecutions (see pages 130 to 142). The section-by-section analysis is part of the legislative history of the National Firearms Act of 1968, also known as Title II of the Gun Control Act of 1968. Because courts look to the legislative history when confronted with difficulties or ambiguities in statutory interpretation, these materials are important and not to be overlooked, because they are often a definitive method of determining Congressional intent.

There is a brief discussion on page 626 of NFA amendments Sen. Hruska offered to attach to other legislation. The discussion also notes that that Sen. Hruska had introduced such legislation for each of the preceding four years.

Commissioner Cohen further discusses the NFA on pages 658 to 663; of particular interest is his observation that Treasury "had been averaging . . . about 60 to 70 prosecutions per month" for NFA violations. Since the Haynes decision, he said, they were "down to about something in excess of 40 per month. So we are talkign about 35 to 40 percent in the area of prosections," indicating that the invalidation of the NFA registration requirement did not halt prosecutions under the NFA.

One of the most interesting historical discussions of firearms registration appears on pages 480 to 505, in Exhibit 61, better known as the Library of Congress study on (1) Firearm registrations in Belgium, Czechoslovakia, France and Norway preceding the German invasion; (2) The shortage of small artms in Great Britian after Dunkirk; (2) English translations of German statutes, decrees and other documents concerning firearms regulations in the occupied territories of Belgium, Netherlands, Czechoslovakia, Luxemburg, Norway, Denmark, Poland and Yugoslavia. Included is a copy of the transmittal letter to then Sen. Thomas Dodd, conveying the translated Nazi gun control regulations that were used as a pattern for the regulations enacted under the Gun Control Act of 1968.

Finally, there is a study entitled "Federal Registration of Firearms: A Consideration of Two Constitutional Problems, Constitutional Basis, Self-Incrimination," by Johnny H. Killian, Legislative Attorney, American Law Division, Library of Congress Legislative Reference Service, June 17, 1968, on pages 739 to 765.