American Gestapo

How the BATF is riding roughshod over civil liberties.

Credit: Reason Magazine

- 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.

Creating Crime Entrapment is but one of the 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 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.

BATF has often recognized the legality of such transactions. In its publication Gun Control Questions and Answers, the Bureau presents a dialogue for guidance on these matters:

(34) Can a licensed dealer send or sell a gun to anyone?
No, except for rifles and shotguns in contiguous State sales, a licensee may not make direct sales to a non-resident. What the dealer can do is ship the firearm to a licensed dealer of the purchaser's choice whose business is in the purchaser's state of residence. The individual could then pick up the firearms after completing form 4473 [the federal registration form].

(54) Since persons under 18 years of age cannot buy long guns or ammunition from dealers, how can they obtain them?
A parent or guardian may purchase firearms and ammunition for a juvenile. [Gun Control Act] age restrictions are intended only to prevent juveniles from acting without their parents' or guardians' knowledge.

These are the Bureau's only public statements on this subject. BATF has avoided ever stating conditions under which such purchases may make the dealer subject to a felony prosecution.

The straw-man case, however, makes it clear that just such transfers may indeed bring one face-to-face with the law. In this form of entrapment an agent or informant who is a prohibited person approaches a dealer to buy a firearm. The agent then produces out-of state identification or indicates that he cannot sign the registration form (which contains a statement that he is not a prohibited person). The dealer invariably refuses to sell.

The "prohibited person" then suggests that perhaps someone else (usually a local relative or friend) could purchase the gun for him. If the dealer takes the bait, he will respond that he can sell to a local person, provided that person can produce valid local identification and can legally fill out the purchase forms.

The "prohibited person" then returns with a second agent, the "straw man." The straw man produces the required identification and signs the appropriate forms. The "prohibited person," however, is the one who comes up with the money; at the end of the transaction, the straw man steps back and the "prohibited person" quickly steps in to pick up the firearm. And that's it for the dealer, who is arrested by BATF agents for selling to a prohibited person.

(It is possible to sidestep the trap. In two reported cases, the dealer refused to go through with the transaction unless the money was offered by the straw man; likewise, he handed the firearm to the straw man, in one case having to snatch it from the hands of the quickly grabbing "prohibited person." Although the Bureau nevertheless arrested both dealers, it prosecuted without success.)

When BATF goes after dealers engaging in straw-man sales, is it merely implementing the Gun Control Act? To permit wide open sales of this type, under any conditions, would allow for extensive evasion of the act. Even so, if the intent of the law is to prohibit the transfer of firearms to certain persons, why should enforcement be aimed at the dealer, who nominally sells to the straw man, rather than the straw man himself, who makes the transfer to the "prohibited person"? In at least one case where a straw-man sale occurred'"without BATF inducement'"the Bureau prosecuted the woman who served as the straw man and did not bring charges against the dealer.

If BATF believes that a straw-man sale constitutes violation of the law, it could easily prevent most future violations by simply informing dealers that it is a violation. This has obviously not been its intent. It is far easier to build up its status with Congress by creating felons of those who are disinclined to crime than by taking the time and risk to seek out real criminals.

Dealers are not the only ones to have been caught in the Bureau's entrapment snare. A second scheme, equally dependent on BATF'S calculated ambiguities, involves the "implied dealership." It is used exclusively against those who do not hold federal firearms licenses.

The law requires that a license be obtained by anyone "engaged in the business" of dealing in firearms. The statute, however, does not define dealing, and BATF regulations make no attempt to do so, except to say that persons who sell but "four to six" guns a year'"mostly collectors'"do not need a license. In fact, such persons are actively discouraged from obtaining licenses. Yet, when non-dealers sell weapons, fully complying with the standards set out by the Bureau, they are in danger of being arrested for dealing without a license.

Entrapment proceeds in this way: One or two agents approach a collector at a gun show and make a purchase. The same happens at the next gun show, and so on, until the "implied dealer" has made four to six sales. At this point, the collector is booked on felony charges of dealing without a license. Legal defense costs can run as high as $20,000 (with the person's gun collection usually having been seized by BATF). If convicted of a felony, the collector loses all right to possess any firearms in the United States.

And the conviction is not difficult for BATF to come up with. In spite of its public position that sales of "four to six" guns a year do not require a license, in court it has consistently been successful with an argument that conviction may be based on very few sales by a private individual, for no financial profit. The Bureau thus appears to interpret "dealing" in any way that seems likely to ensure the most arrests and then, on the opposite interpretation, the most convictions. It has uniformly failed to inform collectors or anyone else of its position, leaving its actual policy on dealing beyond the ascertainment of citizens interested in obeying the law.

Why this two-handed BATF campaign to prosecute those selling only a few firearms a year, while at the same time insisting that one must make a significant quantity of sales per year to qualify for a license? It not only serves to make people more vulnerable to charges of dealing without a license; it also cuts down on the workload of the Bureau in regulating licensees, leaving it free to pursue more impressive tasks.

Bureau officials have made no secret of their policies toward the small businessmen who make up the majority of the nation's gun dealerships. Speaking to a police convention in Buffalo, New York, in 1979, former BATF director Rex Davis told the group that he planned to "tighten BATF'S regulation of licensed firearms dealers," effectively reducing their number "from the present 159,000 to about 30,000.…The reduction will make their regulation more manageable for BATF'S outnumbered forces." The implication is clear: since it is difficult for BATF to regulate these businesses as relentlessly as it wishes to, it has undertaken to drive large numbers of them out of business. Is that the intent of Congress?

Disregard for Property Entrapment of the law-abiding, however, is only one appalling feature of BATF'S new campaign against gun owners. Its behavior during and after trial is curious for a supposedly law-enforcing agency of the government.

The Bureau confiscates many firearms. According to a BATF press release, total confiscations for the years 1976-78 numbered 25,936. The value of the nearly 9,000 firearms confiscated in 1978 is conservatively estimated at $1.05 million. And the odds of citizen getting his guns back are not good, even in the case of an acquittal. In a few reported cases, firearms have been seized but no arrest made. One gun collector provided documentation of a chilling scenario:

- BATF'S move against him, as documented from the prosecution's files, began with a 14-month investigation commencing in early 1976.

- Firearms were seized'"without arrest or indictment'"in March 1977.

- Nearly a year passed as the Bureau made offers to forgo prosecution if the collector would permit BATF to keep his weapons (apparently a common BATF position).

- On January 20, 1978, the collector sued for return of his collection.

- On February 1, 1978, less than two weeks after filing suit, the collector was indicted and was subsequently convicted.

Gun collections are often the product of years of devoted effort, valued in tens of thousands of dollars. In virtually all cases, government confiscation represents a major loss to the collector.

In a number of cases, there is clear evidence of what can only appear to be vindictiveness in the treatment of firearms in the Bureau's custody, both at the time of arrest and later. Gus Cargyle is but one example. A collector in Corpus Christi, Texas, he had firearms valued at $55,000 confiscated by BATF agents. According to the local newspaper, the Corpus Christi Caller, agents deliberately dropped the guns on the concrete floor and stacked them outside "like cordwood." Cargyle successfully sued for return of the weapons (no charges were ever filed) but discovered upon their return that they had been stored in a damp warehouse and allowed to rust during the Bureau's custody.

Not only does BATF seize weapons without making any arrest; it also continues to withhold collections even after acquittal of the defendant. As a tax agency, BATF argues, it is entitled to retain seized weapons (and the vehicles from which they were confiscated, if applicable) to compensate the government for lost revenue. But in an implied dealership entrapment, the only lost revenue is the license fee'"$10'"which in many cases would have been paid to the government if the government had allowed the implied dealer to obtain a license in the first place.

In fact, many of the firearms confiscated by the Bureau'"about one-third, according to records obtained under the Freedom of Information Act'"are not kept because of any "lost revenue" but are appropriated, without compensation, "for official use" or for the "reference collection" at BATF national headquarters. One firearm so retained was an Ingram M10 submachine gun with silencer. The Ingram with silencer is familiar to moviegoers as the weapon used by the contract killer in Three Days of the Condor, and the Bureau's listing of it as "desired for official use by this office" is surely ironic. Other weapons retained for official use include derringers, antiques, and deer-hunting rifles, weapons that would seem to be of little use to a law enforcement agency.

Disregard for Crime Since the Bureau of Alcohol, Tobacco, and Firearms is a law-enforcement agency, one might expect that the guns it is taking out of circulation would be the types most often used in crime. But this is not the case at all.

Freedom of Information requests for BATF data yielded an 18-inch-high stack of Reports of Property Subject to Judicial Forfeiture. The record shows that rifles and shotguns are confiscated more often than handguns'"nearly 60 percent long arms, compared to 40 percent handguns. Guns that are used rather rarely in street crime, such as a $10,000 silver-inlaid shotgun, were not only confiscated but "retained for official use," according to the property reports. "Saturday Night Specials"'"the ubiquitous weapon of crime, according to the Bureau'"account for only four percent of the confiscated guns listed in those reports. Compare all these facts to a December 1973 BATF press release claiming that small, concealable handguns accounted for 71 percent of the crime in four major US cities, and it becomes clear that if BATF is making any attempt to curtail the use of firearms in crime, it is failing dismally.

Other BATF data make it highly questionable whether the Bureau is even expending much effort in that direction. Its own published breakdown of prosecutions by city show that in Washington, D.C., for example, the Bureau conducted 1,603 investigations during the period reported, and only 206 of them dealt with felon in possession of firearms, only 58 with stolen firearms, and only 20 with use of firearms in commission of a felony. Since numerous studies have shown that 25 percent of the handguns used in crime are stolen, it is shocking that less than four percent of BATF'S Washington investigations zeroed in on firearms theft.

The situation has moved some police officers to speak up, noting that in their experience BATF has shown not only neglect but a distinct lack of interest in pursuing those actually committing firearms crimes. A.H. Pickles, chief of police of Leavenworth, Kansas, reports that "on a few occasions I did call [BATF] on cases that were serious violations of federal law. One was a criminal who completely forged a federal form to purchase a pistol, and the other was a case of an illegal alien who bought a pistol with which she shot her male companion.…There was never any action taken against these real criminals by [BATF]." Chief Pickles issued an order to his department that they would henceforth not participate in any joint operation with BATF unless no other federal agency could provide assistance.

Of course, catching thieves and murderers is far more dangerous and difficult than entrapping citizens who are likely to abide by clearly stated laws and, believing themselves to be law-abiding, are unlikely to resist confiscation or arrest with violence. Evidence does indicate that in some cases individuals are picked out for criminal investigation on the basis of the ease and safety with which they may be arrested or because of some special grudge.

One Illinois dealer who regularly spoke out publicly against BATF was pursued by the Bureau for years. Attempting to build a case through the use of informants and entrapment, BATF had amassed a file, obtained under Freedom of Information, in excess of 5,500 pages. The dealer's attorney related that there had been eleven separate attempts to entrap the dealer. One BATF agent had kept a notebook detailing these attempts, and the attorney estimated that the agent had spent over 1,000 hours in his efforts against the dealer.

Yet for several years Bureau administrators have been appearing before Congress complaining that they have neither the funds nor the manpower to do an adequate job of enforcing federal gun law. It is especially ironic that they emphasize not having the resources to begin to move against gun thefts.

The point of the investigations it does specialize in'"and the resultant seizures and arrests'"seems clear: to generate enough publicity to impress Congress and the public with the Bureau's enforcement record. Accordingly, BATF has developed an extensive press relations program, which includes using the press to increase its conviction rate.

In his introduction to the BATF manual Public Affairs Guidelines, former director Rex Davis noted that an "effective public affairs program…has a favorable impact on the attitudes of the court, jurors and prosecutors" (emphasis added). What goes under the name of press relations might therefore be more accurately characterized as indirect jury tampering. "Trial by press" is a popular method for those defendants against whom the Bureau has a weak case.

The press is also used to create "newsworthy material." The strategy is to generate interest by escalating the most mundane record-keeping and administrative inspections into full scale raids.

In July 1974, for example, a number of BATF and customs agents surrounded Jensen Custom Ammunition, a large-scale gun dealer in Tucson, Arizona. Agents entered the store, leaving one agent, armed with an automatic weapon, to maintain order in the parking lot. Employees were frisked, and all customers had to show identification before they were allowed to leave. Administrative records and a few guns were taken. No charges were ever filed.

An operation in June 1978, for the mundane purpose of handing out information on federal firearms laws at a gun show in San Jose, California, became notorious after agents made what amounted to a mass arrest of all attendees. The result is a $2.1 million lawsuit, which the Bureau has unsuccessfully attempted to settle out of court. Although its "educational" activity could have been quietly accomplished by two agents before the show was even open to the public, BATF insisted upon escalating it into a para-military operation, apparently for the benefit of the press.

Civil Rights Abuses Even if BATF'S raids never resulted in tragedies'"and the case of Ken Ballew, paralyzed by BATF agents, confirms that tragedies do occur'"it should be obvious that there is considerable danger to the public inherent in such operations. The Bureau has given us enough examples of what is known in law enforcement as a strike-force mentality to suggest either a general policy or an attitude among individual agents favoring over-utilization of force and misdirection of resources. An examination of BATF publications, obtained through Freedom of Information requests and lawsuits, indicates that policy is as much to blame as any excesses on the part of individuals.

Quite revealing, for example, is a Bureau manual entitled Raids and Searches. In spite of hearings in federal courts, this manual is only available in a censored form.

David Caplan, a New York attorney long active in opposing gun control, filed suit in the Southern District of New York, asking Judge Whitman Knapp to compel BATF to release portions of the manual withheld when Caplan obtained it under the Freedom of Information Act. Judge Knapp chose the middle of the road, ruling that certain portions would have to be disclosed but others could remain secret. While the court agreed with the Bureau's arguments that disclosure of some sections could hinder investigations or enable violators to avoid detection, it expressed reservations about some of the information it had discovered during its inspection of the manual.

"Some withheld sections describe enforcement techniques which are of dubious legality under the Fourth Amendment," Knapp wrote. "Although we do not decide whether any techniques are unconstitutional, we do note our grave doubts with respect to some of them."

Armed with the knowledge that the censored sections would probably show that many of BATF'S civil rights abuses are matters of official policy, Caplan turned to a higher court. In October 1978 the appeals court affirmed Judge Knapp's ruling, arguing that Caplan had "no standing to question the constitutionality of any of the regulations simply because he is writing a book on the subject.…Our jurisdiction is constitutionally limited to 'cases and controversies' and there is none presented here which would permit a review in the abstract of the constitutionality of procedures described in the BATF manual."

Despite the apparent impossibility of seeing an intact copy of Raids and Searches, the portions that have been released reveal a mentality that is hardly appropriate to the administrative regulation of law-abiding citizens. On the contrary, the term raid is defined as "the sudden appearance by officers for the purpose of arresting law violators and seizing contraband." These are obviously not the situations the Bureau has been focusing on, and the courts have declined to let the public see how it handles such cases when they do arise.

Another questionable BATF technique has been criticized by the courts. The use of informants is a legally vague area of which the Bureau has taken liberal advantage. But in the words of one judge, informants are often "totally lacking in scruples of any kind." Given the slightest reason to do so, they have no compunction about lying to judge and jury.

More importantly, BATF often presents them with a motive to lie: payment for their information only if it results in arrest or conviction. While the American Bar Association holds it unethical for an attorney to acquiesce in such contingency-witness payments because they encourage frame-ups and are a substantial inducement to perjury, this is what BATF resorts to in attempt to boost its conviction rate.

In one instance in 1978, a New York judge threw the case of United States v. Brown out of court because of BATF practices: "BATF used an informer who was a wholly immoral individual; BATF provided him with an economic motive for producing arrests; BATF failed to take steps to insure the reliability of the informant's version of the events." Concluded the judge, "We believe that the criminal defendant is needlessly exposed to unacceptable risk of a serious miscarriage of justice and this trial should not be permitted to continue." In another case, the court noted that such contingency fees are "essentially revolting to an ordered society."

BATF'S use of informants'"not unusual in law enforcement'"is particularly disturbing when considered against the background of its record concerning the selection of individuals for criminal investigation or prosecution. The evidence indicates that BATF does not focus its arsenal of law-enforcement tactics on those who have used firearms in violation of other citizens' rights or those who have obtained firearms in violation of others' rights. Instead, the objects of the Bureau's dubious practices are more often citizens whose only "crime" has been a failure to be wary of BATF and its deliberately misleading regulations.

To broaden Judge Knapp's comment about BATF'S manual on raids, grave doubt should be expressed toward all facets of the Bureau and its activities. The history of BATF since the demise of its liquor enforcement functions has been a classic tale of bureaucracy in search of a job. Piling up arrests could only help at budget time. The victims of this legal fallout became statistics, proudly paraded before congressional appropriations committees.

The unethical and unconstitutional activities of the Bureau are not the aberrations of individual, overzealous agents: The evidence is that they are a clearly laid out matter of BATF policy. But as one of its victims said to the press'"after BATF agents had descended on his neighborhood and home "like a bunch of storm troopers"'""We don't need this in our country."

John D. Lewis, Jr., is public affairs director of the Second Amendment Foundation. Some of the material for this article is derived from the SAF study The BATF's War on Civil Liberties.