UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT NO. 79-1382 KENNETH W. DAVIS, JR. Plaintiff-Appellant, -versus- ERNST ERDMANN, Port Director (Port of Tulsa, Oklahoma), Bureau of Customs, Department of the Treasury, and REX D. DAVIS, Director, Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury, Defendants-Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA TULSA DIVISION BRIEF OF APPELLEES HUBERT H. BRYANT UNITED STATES ATTORNEY BY: GEORGE CARRASQUILLO Assistant U.S. Attorney and RONALD E. WILLIAMS Office of Chief Counsel Bureau of Alcohol, Tobacco and Firearms Attorneys for Defendants-Appellees [new page] TABLE OF CONTENTS Page CITATION OF AUTHORITIES ---------------------------------- ii STATEMENT OF THE ISSUES ----------------------------------- iv ARGUMENT: SCOPE OF REVIEW --------------------------------------------- 1 IS THE KNIFE-PISTOL IN QUESTION A "FIREARM" UNDER 26 U.S.C. section 5845? ---------------------------- 2 WAS THE DECISION OF THE DIRECTOR, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, REFUSING TO REMOVE THE KNIFE-PISTOL FROM THE NATIONAL FIREARMS ACT (TITLE 26, U.S.C. CHAPTER 53) ARBITRARY OR CAPRICIOUS? --------------------------------------- 5 WAS THE DECISION OF THE DIRECTOR, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, DETERMINING THAT THE PROPOSED ALTERATION TO THE KNIFE-PISTOL WOULD NOT TAKE THE KNIFE-PISTOL OUT OF THE CATEGORY OF NATIONAL FIREARMS ACT FIREARMS CLASSIFIED AS "ANY OTHER WEAPON" UNDER 26 U.S.C. section 5845(e) ARBITRARY OR CAPRICIOUS? --------------------------------------------------- 8 CONCLUSION ----------------------------------------------------- 10 CERTIFICATE OF SERVICE ---------------------------------------- 12 -i- TABLE OF CITATIONS CASES: Bowman Transportation Inc. v. Arkansas and Best Freight Lines, -------------------------------------- 1 419 U.S. 281 (1974) Brennan v. United States --------------------------------- 5 435 F. Supp. 451 (ED Mich. 1977) Citizens to Preserve Overton Park v. Volpe, --------------- 1 401 U.S. 402 (1970) National Labor Relations Board v. Minnesota Mining and Manufacturing Co., ------------------------------- 1 179 F.2d 323 (8th Cir. 1950) Sabin v. Butz, ---------------------------------------------- 1 515 F.2d 1061 (10th Cir. 1975) Transportation Insurance Co. v. Hamilton, ------------------ 11 316 F.2d 294 (10th Cir. 1963) United States v. Catanzaro, -------------------------------- 10 368 F. Supp. 450 (D. Conn. 1973) United States v Smith, --------------------------------------- 10 477 F.2d 399 (8th Cir. 1973) STATUTES: 26 U.S.C. section 5844 ------------------------------ 3, 4, 5, 26 U.S.C. section 5845(a) --------------------- iv, 2, 5, 6, 8 26 U.S.C. section 5845(a)(5) ------------------------ 2 26 U.S.C. section 5845(e) ------------------------- 2, 3, 8 28 U.S.C. Federal Rules of Civil Procedure, ----------------- 11 Rule 52 Title 18, U.S.C. Chapter 44 ------------------------------ 4, 9 Title 26, U.S.C. Chapter 53 ---------------------------- iv, 2, 9 Public Law 90-618 (82 Stat. 1227) ------------------------ 4 5 U.S.C. section 704 ------------------------------- iv 5 U.S.C. section 706 ------------------------------ iv, 1 -ii- TABLE OF CITATIONS Page REGULATIONS: 27 C.F.R. section 178.2 ---------------------------- 5 27 C.F.R. section 179.25 -------------------------- 6 -iii- [new page] STATEMENT OF THE ISSUES The defendants-appellees object to the plaintiff-appellant's Statement of the Issues contained in its brief. The basis for the court's jurisdiction lies under 5 U.S.C. sections 704 and 706 which gives the court authority to review final agency action to determine if it is arbitrary, capricious, an abuse of discretion or unlawful. The only agency action taken in this matter which may be the subject of this court's review is the decision of the Director, Bureau of Alcohol, Tobacco and Firearms, that the knife-pistol in question does not qualify for reclassification such as to remove it from the National Firearms Act under 26 U.S.C. section 5845(a), and the decision of the Director, Bureau of Alcohol, Tobacco and Firearms that the proposed alterations to the knife-pistol would not remove it from the category of National Firearms Act firearms known as "any other weapon." Defendant-appellees submit that the three basic issues involved in this litigation are as follows: 1. Does the knife-pistol qualify for importation under the National Firearms Act (26 U.S.C. Chapter 53)? 2. Was the decision of the Director, Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury, as delegate of the Secretary of the Treasury, that the knife-pistol was not by reason of its date of manufacture, value, design and other characteristics primarily a collector's item and was likely to be used as a weapon arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law? -iv- 3. Was the decision of the Director, Bureau of Alcohol, Tobacco and Firearms, that the proposed alteration to the knife-pistol would not remove it from the category of National Firearms Act firearms known as "any other weapon" arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. -v- ARGUMENT I Scope of Review The scope of judicial review is limited to a determination of whether the agency action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law (5 U.S.C. section 706(2)(a)). The United States Supreme Court in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416-417 (1970), stated, To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment . . . [citing cases] Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. * * * The final inquiry is whether the Secretary's action followed the necessary procedural requirements. See also, Sabin v. Butz, 515 F.2d 1061 (10th Cir. 1975). If an administrative decision has a rational basis in the evidence and law, it may not be nullified by a reviewing court, even though that court is of the opinion that it would have reached a different conclusion had it tried the case. National Labor Relations Board v. Minnesota Mining & Manufacturing Co., 179 F.2d 323 (8th Cir. 1950). "While we may not supply a reasoned basis for the agency's action that the agency itself has not given, we will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." Bowman Transportation, Inc. v. -1- Arkansas and Best Freight Lines, 419 U.S. 281, 285-286 (1974). The evidence presented in this matter clearly supports the fact that the Director, Bureau of Alcohol, Tobacco and Firearms, did not abuse his discretion nor act arbitrarily or capriciously in reaching the determination that the knife-pistol in question did not qualify for removal from the National Firearms Act under the provisions of 26 U.S.C. section 5845(a) in that the knife-pistol might be used as a weapon and that by reason of its design (easy duplication) and other characteristics, the knife-pistol is not primarily a collector's item. Also, the evidence presented in this matter clearly indicates that the Director, Bureau of Alcohol, Tobacco and Firearms, did not abuse his discretion nor act arbitrarily or capriciously in determining that the proposed alteration to the knife-pistol (placing silver solder in the barrel and flattening the firing pin) would not remove the firearm from the definition of the term "any other weapon" as defined in 26 U.S.C. section 5845(e). II Is The Knife-Pistol A National Firearms Act Firearm? We are concerned here with the desired importation of a knife- pistol by plaintiff-appellant. A "firearm" is defined under the National Firearms Act (Chapter 53, Title 26, U.S.C.) at 26 U.S.C. section 5845(a)(5) to include an "any other weapon," as defined in section 5845(e). Section 5845(e) defines the term "any other weapon" to mean any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, -2- and shall include any such weapon which may be readily restored to fire. The knife-pistol in question here is, with the blade closed, approximately 3 8/10 inches long. It's appearance is that of a pocket knife. However, it has two moving parts other than the blade. A barrel which is approximately 1 2/16 inches long which, when pulled out, will accept a single .22 caliber bullet. Once loaded, the barrel is then closed back into the handle. The other moving part is a small lever. The weapon is cocked by pulling the lever out, and it is fired by squeezing the lever like a trigger. The knife-pistol definitely is, therefore, a weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive. Thus, the knife- pistol is a National Firearms Act firearm as it falls within the definition of the term "any other weapon" in 26 U.S.C. section 5845(e). As the knife-pistol is a National Firearms Act firearm, it must qualify for importation under the importation provisions of the National Firearms Act at 26 U.S.C. section 5844 before it may be imported. Section 5844 provides that: No firearm shall be imported or brought into the United States or any territory under its control or jurisdiction unless the importer establishes, under regulations as may be prescribed by the Secretary or his delegate, that the firearm to be imported or brought in is - (1) being imported or brought in for the use of the United States or any department, independent establishment, or agency thereof or any State or possession or any political subdivision thereof; or -3- (2) being imported or brought in for scientific or research purposes; or (3) being imported or brought in solely for testing or use as a model by a registered manufacturer or solely for use as a sample by a registered importer or registered dealer; except that, the Secretary or his delegate may permit the conditional importation or bringing in of a firearm for examination and testing in connection with classifying the firearm. The desired importation by plaintiff-appellant does not fall within any of the exceptions allowing importation provided in section 5844. On October 31, 1973, plaintiff-appellant's application to import the knife-pistol was denied, and by letter dated November 26, 1973, plaintiff-appellant was informed of the fact that the knife-pistol does not qualify for importation under the National Firearms Act. It is pointed out that appellant 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.). The definition of the term "firearm" as used in Chapter 44 is much broader than the term "firearm" as defined in the National Firearm Act. In that respect, Congress provided in section 104(a) of Public Law 90-618, cited as the Gun Control Act of 1968, that nothing in Title I of the Gun Control Act of 1968 shall be construed as modifying or affecting any provision of the National Firearms Act (see 82 Stat. 1227). In implementation of this, the regulations implementing Chapter 44, Title 18, U.S.C., provide at -4- 27 C.F.R. section 178.2 that "The provisions in this part are in addition to, and are not in lieu of, any other provision of law, or regulations respecting commerce in firearms or ammunition." On a similar question concerning the desired importation of machineguns, the United States District Court for the Eastern District of Michigan in Brennan v. United States, 435 F. Supp. 451 (E.D. Mich. 1977), held that the plaintiff there could not show that he met the requirement of 26 U.S.C. section 5844 although he did qualify under the importation provisions of Chapter 44, Title 18, U.S.C., and that the action of the Bureau of Alcohol, Tobacco and Firearms in denying the importation of the firearms was reasonable and in compliance with the law. Since the knife-pistol does not qualify for importation under the National Firearms Act, the question turns to whether the knife- pistol can be removed from the provisions of the Act. III Was The Decision Of The Director, Bureau of Alcohol, Tobacco and Firearms, Department Of The Treasury, As Delegate Of The Secretary, That The Knife-Pistol Was Not By Reason Of Its Date Of Manufacture, Value, Design And Other Characteristics Primarily A Collector's Item And Was Likely To Be Used As A Weapon Arbitrary, Capricious, An Abuse Of Discretion, Or Otherwise Not In Accordance to Law? As provided by 26 U.S.C. section 5845(a), the Secretary of the Treasury or his delegate may remove a device which, although designed as a weapon, the Secretary or his delegate finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector's item and is not likely to be used as -5- a weapon. The regulations implementing the National Firearms Act provide at 27 C.F.R. section 179.25 that the Director, Bureau of Alcohol, Tobacco and Firearms, as delegate of the Secretary, shall determine whether a firearm or device is primarily a collector's item and is not likely to be used as a weapon. A person desiring such a determination is required to submit a request to the Director setting forth information which would sustain a finding that the firearm is primarily a collector's item and is not likely to be used as a weapon. Several items of correspondence were made between plaintiff- appellant and the Bureau of Alcohol, Tobacco and Firearms concerning the knife-pistol. Finally, on April 29, 1974, plaintiff-appellant requested the Director to reclassify the knife-pistol as he believed the knife-pistol was primarily a collector's item. The plaintiff-appellant's request was considered as a request for removal from the National Firearms Act under the authority of 26 U.S.C. section 5845(a) and 27 C.F.R. section 179.25, and by letters of June 7, 1974 and December 10, 1974, plaintiff-appellant was advised that the knife-pistol in question could not be reclassified such as to remove it from the provisions of the National Firearms Act. In particular, plaintiff-appellant was advised that it had been determined that this knife-pistol could not be considered primarily a collector's item by reason of its date of manufacture, value, design and other characteristics, because (1) the 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; (2) the knife-pistol could be easily duplicated -6- and counterfeited; (3) such a knife-pistol would be inexpensive to manufacture; and (4) the prosecution of persons possessing unregistered identical knife-pistols would be hindered, if not frustrated. In addition, it was determined that because of the design and other characteristics of the knife-pistol, it could not be determined that the knife-pistol would not be likely to be used as a weapon. It is clear the Director followed the proper procedure in making his determination and did not exceed his statutory authority or act unlawfully. Further, as indicated by the testimony of ATF firearms expert Robert Scroggie 1/ (Tr. p. 82-83), the request of plaintiff-appellant that the knife-pistol be reclassified was considered and evaluated by a group of firearms experts including Mr. Scroggie, and the Bureau's Office of Chief Counsel and a recommendation made to the Director that the knife-pistol did not qualify for reclassification for the reasons stated above. Based on this evaluation and recommendation by experts in the firearms field, it --------------------------- 1/ As indicated by the answer to interrogatory number 22 of Defendant's Answers to Plaintiff's Interrogatories (Second Set) (Docket Entry No. 33), Mr. Scroggie has been employed with ATF (Bureau of Alcohol, Tobacco and Firearms) since 1968 as a firearms expert, having previously been employed for about one year by the Smithsonian Institution as Custodian of the Firearms Study Collection, Department of Military History, and served in the armed forces from 1947 - 1967 where he received extensive training in weaponry. Mr. Scroggie has co-authored one book and provided technical assistance for another, both of which concern firearms. -7- was determined that the knife-pistol could not be reclassified under the authority of 26 U.S.C. section 5845(a). There was, therefore, clearly no abuse of discretion or action of an arbitrary or capricious nature on the part of the Director, as the determination not to reclassify the knife-pistol was based on the evaluation of the knife-pistol by several firearms experts and their recommendation that the knife-pistol not be reclassified. IV Was The Decision Of The Director, Bureau Of Alcohol Tobacco And Firearms, That The Proposed Alteration To The Knife-Pistol Would Not Remove It From The Category Of National Firearms Act Firearms Known As "Any Other Weapon" Arbitrary, Capricious, An Abuse of Discretion, Or Otherwise Not In Accordance With Law? As plaintiff-appellant could not get the knife-pistol reclassified and thus remove it from the National Firearms Act under 26 U.S.C. section 5845(a), he requested that he be allowed to alter the knife-pistol by placing silver solder in the barrel and flattening the firing pin such that the firearm could not discharge a shot through the energy of an explosive (26 U.S.C. section 5845(e)). It was thus plaintiff-appellant's intention to modify the knife-pistol such that it did not meet the term "any other weapon" as defined in 26 U.S.C. section 5845(e). The proposed alteration to the knife-pistol was placed before the Bureau of Alcohol, Tobacco and Firearms' Firearms Classification Panel which was created by the Director in March of 1975 to handle all requests concerning the classification of firearms under the -8- National Firearms Act (Chapter 53, Title 26, U.S.C.) and Title I of the Gun Control Act of 1968 (Chapter 44, Title 18, U.S.C.). The Panel consists of representatives of the Bureau's Office of Chief Counsel, the National Firearms Act Branch, the Office of Criminal Enforcement, and firearms experts from the Firearms Technology Branch. This Firearms Classification Panel evaluated the plaintiff-appellant's proposed alterations and concluded that the proposed alterations would not remove the knife-pistol from the definition of "any other weapon" as such an altered knife-pistol could be readily restored to a firing condition as a result of its design. The Panel felt the silver solder could be easily removed and the firing pin replaced or fixed in a short interval of time. Mr. Robert Scroggie, the Bureau's expert witness at the district court hearing, and a member of the Firearms Classification Panel, testified that the silver solder could be drilled out of the barrel in approximately 15 minutes using a drill press (Tr. 85-86). Mr. Scroggie further testified that he had drilled out silver solder on several occasions and had training in the use of drill presses 2/. ---------------------- 2/ It is pointed out that although plaintiff-appellant~s expert, Kenneth Wallingford, testified that a drill press won't drill an exact hole, the barrel of the knife-pistol is only 1 2/16 inches long. The hole doesn't, therefore, have to be exactly straight as long as it can chamber a .22 caliber short cartridge which is 11/16 of an inch long leaving only a barrel of 7/16 of an inch that need be traveled by the bullet. Further, the use of a drill press restricts the movement of a drill bit and practically eliminates any possibility of the drill bit slipping or moving. -9- Where a firearm may be readily restored to fire, it is still a firearm under the National Firearms Act. In United States v. Catanzaro, 368 F. Supp. 450 (D. Conn. 1973), the court held that the restoration of a firearm in approximately one hour made the firearm fall within the category of "readily restored to fire." In United States v. Smith, 477 F.2d 399 (8th Cir. 1973), the court went so far as to hold that the restoration of a firearm in eight hours using a machine shop was such that the firearm was readily restored to fire. The panel's determination and reasons therefore were forwarded to the Director who reviewed and agreed with such determination. The Director, therefore, did not act unlawfully in making such determination or abuse his discretion. Further, as the Director's decision was based on the evaluation of a panel of experts in the field of firearms, including Mr. Scroggie who testified at the hearing, his decision agreeing with their determination and recommendation can not be termed arbitrary or capricious. CONCLUSION The issues presented for review by this Court were resolved in the district court in favor of the position advanced by defendant- appellees. The defendant-appellees proved in the district court that the agency action was not arbitrary, capricious, an abuse of discretion, or unlawful. Plaintiff-appellant now seeks a reversal of this determination. -10- The trial court's findings are presumptively correct and should not be set aside unless clearly erroneous. Rule 52, Fed. Rul. Civ. Proc., Title 28, U.S.C. See also, Transportation Insurance Company v. Hamilton, 316 F.2d 294 (10th Cir. 1963). The questioned decisions of the Director, Bureau of Alcohol, Tobacco and Firearms, were based on the evaluations, determinations, and recommendations of firearms experts and cannot be said to be "clearly erroneous." WHEREFORE, for the aforesaid reasons, the Judgment of the district court below in favor of defendants-appellees should be affirmed. Respectfully submitted, HUBERT H. BRYANT UNITED STATES ATTORNEY By: George Carrasquillo Assistant U.S. Attorney and Ronald E. Williams Office of Chief Counsel Bureau of Alcohol, Tobacco and Firearms -11- CERTIFICATE OF SERVICE I HEREBY CERTIFY that two true copies of the foregoing Brief of Appellees were on the 9th day of July 1979, served by mail upon Robert S. Travis and Ralph H. Duggins, III, attorneys for appellant, at Cantey, Hanger, Gooch, Munn & Collins, 1800 First National Bank Building, Fort Worth, Texas 76102. By: George Carrasquillo -12-