Silver Spring, Maryland, June 1971: Four government agents in plain clothes broke down the back door of the apartment of Ken Ballew, who was in the bathtub at the time. Ballew armed himself with a pistol and prepared to defend himself. He was shot by the agents and suffered permanent brain damage and paralysis as a result.
San Jose, California, June 1978: Twenty armed government agents raided a collectors’ show, for two hours allowing no one to leave. The agents photographed exhibitors and bystanders and forced everyone present to sign “warning forms .”
Charleston, South Carolina, January 20, 1977: Agents entered the home of Patrick Mulcahey and confiscated all his collectors’ items, valued at $15,000. Included were a gift from his grandfather when he was 11, the first item he purchased for his collection when he was 15, and an engraved piece worth more than $1,000.
Kirkland, Washington, October 1978: In a paramilitary-style operation, government agents invaded the neighborhood of Mr. and Mrs. Elmer Tungren. A four-block area was sealed off, the neighborhood evacuated, and the Tungren home surrounded. Some of the agents ransacked their home, while others stood over the Tungrens with automatic rifles.
Hardened criminals? Not quite. Armed? Well, it’s true that the government agents were after firearms–but consider what kind, and the circumstances. The firearms of Ken Ballew, who assumed the intruders were criminals and so armed himself, were found to be properly registered and owned legally. The San Jose raid was at a gun collectors’ show, where enthusiasts display and trade antique and choice firearms–not the kind used by criminals. Patrick Mulcahey was charged by the government with illegal possession of firearms but was acquitted in court. (Yet the government still has not returned his collection, appropriated without compensation.) The agents found a few rifles and a .22 caliber target pistol in the Tungrens’ home–all properly registered. Yet those agents had come in “like a bunch of storm troopers,” as Mr. Tungren described it afterwards to the press.
And the agents involved? They belong to the federal government’s Bureau of Alcohol, Tobacco, and Firearms. A part of the Internal Revenue Service, BATF has existed in various forms for many years. After passage of the Gun Control Act of 1968, the IRS’S Alcohol and Tobacco Division was given, along with bureau status, responsibility for enforcing firearms laws.
Some of the Bureau of Alcohol, Tobacco, and Firearms’ zealous pursuit of gun owners can no doubt be laid at the feet of gun-control sentiments in the United States. Many people appear willing to put aside constitutional protection of the citizen’s right to bear arms because of worry about crime statistics showing that some 50 percent of homicides are committed with handguns.
But consider 1976, for example. In that year, according to FBI Uniform Crime Reports, 9,202 illegal homicides (49 percent of the total) were committed with handguns. Yet, of the estimated 40 million in private hands, 9,202 is only .023 percent. (And gun-control advocates who put that estimate even higher, sometimes as high as 100 million, should note that the percentage of homicides committed with handguns is then even lower.) Moreover, BATF itself has repeatedly pointed to cheap handguns-valued under $50, caliber .32 or less, barrel 3 inches or less–as the weapon most often used by criminals. So why is it pursuing gun collectors and dealers, rather than individuals who have used firearms in a criminal manner?
A good part of the explanation may well be that the Bureau has been placed in a very awkward position by a decline in moonshining. With sugar prices escalating rapidly since 1972, illegal brewing has fallen off dramatically. In 1972 BATF raided nearly 3,000 stills; by 1978 the number had fallen to a mere 381. Clearly, the public–and Congress–would not find its alcohol-controlling functions very important any more. But if BATF could build up an impressive arrest record in the area of firearms... And it looks like that is exactly what this government agency proceeded to do during the 1970s, often using questionable and outright illegal tactics, often to carry out lengthy investigations, appropriate the property, and make highly publicized numbers of arrests–not of criminals or even would-be criminals, but of law-abiding citizens.
Entrapment is but one of the meth-methods used by the Bureau in these operations. TV cop shows have made this technique familiar to millions of Americans. Kojak’s right-hand officer hits the streets as a lonely man in search of the attention of a street-walker or as a desperate junkie after a fix; mad-junkie meets prostitute/pusher and suggests transaction; the nod is given and a police badge quickly produced, followed by handcuffs; and so a law-breaker is caught in the act.
Entrapment is in fact a centuries-old law-enforcement tactic and is also used to trip up criminals involved in the exchange of stolen property, con artist schemes, and so on. In theory, it is a useful means of cornering people who are already engaging in or intending to engage in criminal activity. In practice, it treads a thin line between offering the opportunity for a person to commit a crime and actually encouraging him to do so.
Over the years, various forms of entrapment have been held legal by the courts. But the crucial test, the Supreme Court has declared, is the object of the ruse. “The first duties of the officers of the law are to prevent, not to punish, crime,” said the Court in the case of Sorrels v. the United States in 1932. “It is not their duty to incite crime. . . . Decoys may be used to entrap criminals, and to present opportunity to one intending to commit crime. But decoys are not permissible to ensnare the innocent and the law-abiding into the commission of a crime.”
Yet a look at the record of the Bureau of Alcohol, Tobacco, and Firearms leads to the inescapable conclusion that it is making an art out of just such entrapment of innocent and law-abiding citizens. It was handed the opportunity to do so by the Gun Control Act of 1968, which is the major piece of control legislation on the books and is rife with vague language. It is left to the Bureau to come up with regulations to implement the intent of Congress. In doing so, BATF has exploited the very vagueness of the Gun Control Act. It is clear that the Bureau has purposely created and perpetuated ambiguities, allowing for citizens to be misled into violations of the law. And that’s where entrapment, of both licensed dealers and private citizens, enters the picture.
In entrapment of dealers, BATF makes use of a scheme known as a “straw-man sale.” This sale hinges I upon the fact that dealers may not sell to certain “prohibited persons”–nonresidents of their state, persons under a certain age, felons, and some others. At the same time, it is common for one individual legally to buy for another who might himself be prohibited from purchase. An adult, for example, purchases for a juvenile, or an out-of-state dealer makes a purchase so that a resident of his state may then purchase from him.