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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.”