No. 79-1382 UNITED STATES COURT OF APPEALS TENTH CIRCUIT KENNETH W. DAVIS, JR., Plaintiff-Appellant vs. ERNST ERDMANN & REX D. DAVIS, Defendants-Appellees APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA TULSA DIVISION REPLY BRIEF FOR APPELLANT Robert S. Travis Ralph H. Duggins, III Cantey, Hanger, Gooch, Munn & Collins 1800 First National Bank Building Fort Worth, Texas 76102 817/335-9595 Attorneys for Appellant July 26, 1979 [new page] TABLE OF CONTENTS ARGUMENT Page I. Plaintiff's Exhibit 19 is primarily a collector's item and is not likely to be used as a weapon .......... 1 II. Plaintiff's Exhibit 19 can be placed in "unserviceable" condition and thereby imported as a curio .................... 6 CONCLUSION ................................................... 7 CERTIFICATE OF SERVICE ....................................... 11 [new page] TABLE OF CITATIONS Cases: Page Brennan v. United States, 435 F. Supp. 451 (E.D. Mich. 1977) 1 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) 7 First Girl, Inc. v. Regional Manpower Adm. of U.S.D. of L., 499 F.2d 122 (7th Cir. 1974) 8 International U. of Operating Eng., Local 627 v. Arthurs, 355 F. Supp. 7 (W.D. Okla. 1973) 9 National Citizens Com. For Broadcasting v. F.C.C., 555 F.2d 938 (D.C. Cir. 1977) 8 Miscellaneous: National Firearms Act, 26 U.S.C. section 5801 et seq. 1, 2 Gun Control Act of 1968, 18 U.S.C. section 921 et seq. 5 L. Jaffe, Judicial Control of Administrative Action 9 (1965) [new page] UNITED STATES COURT OF APPEALS TENTH CIRCUIT KENNETH W. DAVIS, JR., Plaintiff-Appellant, v. No. 79-1382 ERNST ERDMANN & REX D. DAVIS, Defendants-Appellees. REPLY BRIEF FOR APPELLANT I. There are only two fundamental issues presented by this lawsuit. First, is plaintiff's Exhibit 19 - - a U. S. Small Arms Company knife-pistol manufactured around 1917 and presently a part of the weapons collections in several museums, including the Smithsonian, a "firearm" as defined in the National Firearms Act, 26 U.S.C. section 5845? Secondly, can the knife-pistol in question be placed in "unserviceable" condition and imported as a "curio" within the meaning of the Gun Control Act of 1968, 18 U.S.C. section 925(d)(2)? [footnote 1] -------------------------- 1/Defendants-Appellees curiously state at page 4 of their brief that "[A]ppellant has continuously attempted to complicate the issues here by raising the importation provisions of Title I of the Gun Control Act of 1968 (Chapter 44 Title 18, U.S.C.)." It is clear that both the Gun Control Act of 1968 and the National Firearms Act are germane to the appeal. Both are independent of each other insofar as importation of weapons is concerned. Gun Control Act of 1968, Pub. L. No. 90-618, section 104, 82 Stat. 1213, Brennan v. United States, 435 F.Supp. 451, 453 (E.D. Mich. 1977). [new page] In order to import a "firearm" as defined in the National Firearms Act, 26 U.S.C. section 5845, the importer must, inter alia, seek to import the item for one of the reasons set forth in 26 U.S.C. section 5844. That section, however, applies only to National Firearms Act "firearms." If a particular item is not a "firearm", then the importation restrictions obviously do not apply. This is the point that Defendants-Appellees continue to overlook. Plaintiff-Appellant submits that plaintiff's Exhibit 19 is not a firearm because the plain language of the definition of a firearm excludes "any device (other than a machinegun or destructive device) which, although designed as a weapon, the Secretary finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector's item and not likely to be used as a weapon." 26 U.S.C. section 5845(a), (emphasis added). The knife-pistol is just such a device. It was designed as a weapon and it fits within the "any other weapon" category of firearms. However, because it was made in 1917 - now over 60 years old; because it is worth around $200; and because of its novel and unique design - the relevant factors - it is now primarily a collector's item and it is not likely to be used as a -2- weapon. In addressing the issue of whether or not plaintiff's Exhibit 19 is primarily a collector's item, the Defendants- Appellees state at pages 6 and 7 of their brief that the item is not primarily a collector's item because "knife-pistols manufactured by the U. S. Small Arms Company were not consistently identifiably marked thereby making it impossible to readily distinguish it from other knife-pistols." (emphasis added). This contention is a non sequitur. Although this item did not have a serial number it did have the manufacturers's name on it. Even so, how is this knife-pistol less of a collector's item because it contains no serial number? At the trial of this cause counsel for the defendants admitted that plaintiff's Exhibit 19 could be given a serial number, (tr. p. 109-110): "THE COURT: Wasn't he just asking that this particular single item be removed? "MR. WILLIAMS: But we had no way to - - we have no way to identify it unless we said the one owned by Mr. Davis. And we don't, you know, when we remove a firearm we remove that type of firearm. "THE COURT: Well, can't you give this a particular serial number and remove it? "MR. WILLIAMS: Well, we could, except it still likely to be used as a weapon. There were two reasons on the decision. To remove it it has got to be primarily a collector's item, which we agree this one is valuable, it is a curio-relic. But then the second problem to the test is whether it is likely to be used as a weapon and we determined it just wouldn't fall in because it was likely to be used as a weapon. -3- "THE COURT: You are talking about this particular gun? "MR. WILLIAMS: That particular gun, right. "THE COURT: Well then, do we need to explore whether or not it could be duplicated by some other manufacturing of a similar - - "MR. WILLIAMS: I don't think so, Your Honor. We are willing to concede of its value, it's a curio-relic and we could stamp a number on there. I don't think it's much value. Our argument really is that it is likely to be used as a weapon." At the trial the government says because it does not have a serial number it will likely be used as weapon. Now, in their brief it is not primarily a collector's item for the same reason. Nevertheless, if Defendants-Appellees can assign and stamp a serial number on plaintiff's Exhibit 19 - as contemplated by 26 U.S.C. section 5842(b) - then it would be simple to distinguish it from other knife-pistols. These admissions, and the stipulated testimony of several museum curators that a similar knife-pistol was in their collections (plaintiff's Exhibits 32 through 37) establish beyond any doubt that plaintiff's Exhibit 19 is primarily a collector's item. The superficial arguments proffered in Defendants-Appellees' brief on page 7 - that the knife-pistol could easily be duplicated, that similar knife-pistols would be inexpensive to manufacture, and that the prosecution of persons possessing unregistered identical -4- knife-pistols would be hindered, are irrelevant to the question of whether the item in question is primarily a collector's item, assuming arguendo, that there is any evidence of the government's contentions. Defendants-Appellees conclude saying "that because of the design and other characteristics of the knife-pistol, it could not be determined that the knife-pistol would not be used as a weapon." This argument is also totally lacking in evidentiary support. It is uncontroverted that Plaintiff-Appellant has a federal firearms license, has extensively collected guns and weapons for over eight years, and has not fired a gun since World War II. Moreover, Robert Scroggie and Robert Miller, both witnesses called by the government, admitted they had never heard of any knife-pistol being used as a weapon. Attachments to Exhibits submitted by the plaintiff to the government contained letters from officers in the New York City and Los Angeles police departments also stating they had never heard of any knife-pistol being used as a weapon. In addition, they indicated it was not likely to be used as a weapon. There simply is not one shred of evidence to support Defendants-Appellees determination that this knife-pistol would be used as a weapon by this plaintiff or that any knife-pistol, if such could be found, would be used as a weapon. -5- The fact that this type of weapon is no longer manufactured indicates the lack of popularity with its design and usefulness. It is merely a novelty which inaccurately discharges a single shell through a short, smoothbore barrel. (Tr. pages 63-64). II. Secondly, the Defendants-Appellees determined that plaintiff's Exhibit 19 could not be imported as a "unserviceable" curio under 18 U.S.C. section 925(d)(2). Although Plaintiff-Appellant proposed at the suggestion of Robert Scroggie, ATF "expert" and witness, to "flatten the end of the firing pin in an approved manner or to make the firing pin inoperative" and "to plug the barrel by silver solder or some other permanent means," (Plaintiff's Exhibit 28), Defendants-Appellees tell the Court at page 9 that the ATF determination that such a proposed alteration would not make plaintiff's Exhibit 19 "unserviceable" was rational because Scroggie stated he could drill the solder out in fifteen minutes. Plaintiff submits such a determination was arbitrary for several reasons. Scroggie admitted at trial he had never drilled silver solder out of a gun barrel (tr. p. 86). Secondly, and the most unbelievable part of this story, is that Scroggie is the ATF agent and expert who suggested to plaintiff that such an alteration would make the knife-pistol -6- unserviceable. (See tr. pp. 42, 85-86). Plaintiff would further add that he has also offered and would prefer to make the knife-pistol unserviceable by using a high quality epoxy resin. Plaintiff's Exhibit 1 is a letter from plaintiff to the government offering to handle the importation of this knife-pistol in a fashion similar to that used when the plaintiff imported a Nazi belt buckle pistol in 1972. In the previous importation of the belt buckle, ATF expert John West said: "Your recommendation of using solder to block the chamber area is felt to comply with the intent of the law. However, we would prefer you use a high quality epoxy resin in lieu of the solder since this possesses sufficient bonding strength and perhaps might have a cosmetic factor which would distract less than the use of solder." What could be more arbitrary and irrational? This government opinion states both solder and epoxy will render an item unserviceable but suggests the use of epoxy because of the damage solder causes to a barrel, Now, the government contends neither is sufficient to place the knife-pistol in unserviceable condition. This type of unsupported inconsistency illustrates that the agency's determination depends on the caprice of whoever rules on the application. There are no standards or guidelines. CONCLUSION The appellees' brief patently illustrates the complete lack of merit in the determinations by the government. There is -7- simply no evidence to support appellees' position that Plaintiff's Exhibit 19 is "not primarily a collector's item" and that "it is likely to be used as a weapon." In fact, the evidence overwhelmingly proves the contrary to be true. Similar items are rare. They are found in museums and they are not in the hands of the public. Because they have a very short, smooth barrel and can hold only one cartridge, they are virtually useless as a weapon. There is no evidence that plaintiff is likely to use this or any other item as a weapon. The proposed alterations, either by epoxy resin or silver solder have been previously approved or suggested by the government as sufficient to render a gun unserviceable. This Court is obliged to review the District Court's findings to determine if they were clearly erroneous. In doing so the Court should review the relevant factors to determine if the agency's determination was based on clear errors in judgment. Citizens to Preserve Overton Park v Volpe, 401 U.S. 402, 416 (1971). In this case the government has vacillated back and forth in an effort to substantiate their determinations. What conclusions they have made were not supported by evidence. For example, the conclusion that the knife-pistol was likely to be used as a weapon was based on the contention that it had no serial number, could be easily duplicated, would be inexpensive -8- to manufacture, and would lead to frequent use of other unregistered knife-pistols as weapons. If the government simply assigns a serial number to this particular item, and it is imported and owned by this plaintiff, how can it be said that other knife-pistols would suddenly become available? How is a knife-pistol, presently on display in several museums, any easier to duplicate by the importation of one more knife-pistol which would be stored in a private collection? How does the expense of manufacturing make it more likely that this item will be used as a weapon by this plaintiff? How would the importation of this item hinder the prosecution of others using other knife-pistols when they are not available and would not be made any more available by the proposed importation? The nexus is just not there. We submit the government's position is patently arbitrary because the facts upon which it is based are simply untrue and not supported by the record. National Citizens Com. For Broadcasting v. F.C.C., 555 F.2d 938, 956 (D.C. Cir. 1977) afield in part, rev'd in part on other grounds, 436 U.S. 775. A finding based on a total void of reliable evidence is a clear error of judgment and is an abuse of discretion. First Girl, Inc. v. Regional Manpower Adm. of U.S.D. of L., 499 F.2d 122, 124 (7th Cir. 1974). The statutes relied upon by the government were not enacted to inhibit the lawful ownership of guns. They were -9- enacted in large part to attempt to control crime. The preamble to both acts states in part: The Congress hereby declares that the purpose of this title is to provide support to Federal, State, and local law enforcement officials in their fight against crime and violence, and it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law abiding citizens with respect to the acquisition of firearms appropriate to the purpose of any lawful activity, and that this title is not intended to discourage or eliminate the private ownership of firearms by law-abiding citizens for lawful purposes. Gun Control Act of 1968, Pub. L. No 90-618, section 101, 82 Stat. 1213. The government has ignored that intent by refusing to allow a law-abiding citizen to import a collector's item useful only as such. Where an agency completely ignores the purposes of the controlling statutes there cannot be any rational basis to support its decision and the reviewing court should set it aside. International U. of Operating Eng., Local 627 v. Arthurs, 355 F.Supp. 7, 9 (W.D. Okla 1973), afield, 480 F.2d 603 (10th Cir. 1973) "An agency is not an island entire of itself. It is one of the many rooms in the magnificent mansion of the law." L. Jaffe, Judicial Control of Administrative Action, (1965), at page 590. Plaintiff-Appellant submits the actions of the Bureau of Alcohol Tobacco and Firearms were totally arbitrary and were based on improper constructions of the relevant law. As such, the district court should have adopted the findings and -10- conclusions of the magistrate reversing those determinations. By failing to do so and by rubber stamping the agency's determinations, the district clearly erred. Appellant therefore requests that this Court reverse the judgment of the lower court and order defendants-appellees to allow plaintiff to import the knife-pistol so that he may make the gun unserviceable by plugging the barrel with epoxy resin. Respectfully submitted, ROBERT S. TRAVIS RALPH H. DUGGINS, III Cantey, Hanger, Gooch, Munn & Collins 1800 First National Bank Building Fort Worth, Texas 76102 817/335-9595 Ralph H. Duggins, Attorneys for Appellant Certificate of Service I, Ralph H. Duggins, III, one of the attorneys of record for Appellant Kenneth W. Davis, hereby certify that I served a copy of the foregoing Reply Brief upon the Appellees by placing two copies thereof addressed to their counsel of record in the United States mail on this 26th day of July, 1979. Ralph H. Duggins, III -11-