UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA EUGENE STEELE, Plaintiff, v. NATIONAL FIREARMS ACT BRANCH, BUREAU OF ALCOHOL, TOBACCO, AND FIREARMS, DEPARTMENT OF TREASURY, UNITED STATES OF AMERICA, JANET RENO, STATE ATTORNEY OF THE ELEVENTH JUDICIAL CIRCUIT, STATE OF FLORIDA, STANLEY MARCUS, UNITED STATES ATTORNEY, SOUTHERN DISTRICT OF FLORIDA AND CARLOS CRUZ, UNITED STATES MARSHAL, SOUTHERN DISTRICT OF FLORIDA, Defendants. CASE NO. 82-2013-Civ-SMA PLAINTIFF'S REPLY TO DEFENDANTS' MOTION TO DISMISS Plaintiff, Eugene Steele, pursuant to Local Rule 10(c) files this reply memorandum to Defendants' Motion to Dismiss and further respectfully refers the Court to Plaintiff's Memorandum in Support of Complaint for Declaratory Judgement previously filed. Federal Defendants have filed their Motion to Dismiss based on FRCP 12 b(1) lack of jurisdiction of the subject matter and b(6) failure to state a claim upon which relief can be granted. Defendants have not argued in support of their Motion to Dismiss based on FRCP 12 b(1) unless its combination with 12 b(6) is presumed. It is clear that for the purposes of the motion, the wellpleaded material allegations of the Complaint are taken as admitted. A complaint should not be dismissed for insufficiency unless it appears to a certainty that the Plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. Miami Parts & Spring, Inc. v. Champion Spark Plug Co. (CA 5th 1966) 364 F2d 957. Defendant, Bureau of Alcohol, Tobacco, and Firearms, Department of Treasury, cite several cases to support its position that the last sentence of 27 CPR 179.85 is a valid use of the regulatory power of the Director. No case cited by that Defendant permits the delegation of its responsibilities to State, local or other Federal officials. Those officials do not want nor are they empowered to accept this responsibility. Form (4)'s Law Enforcement Certificate does not contain the entire language of 27 CFR 179.85 that portion stating "that he is satisfied that the fingerprints and photograph appearing on the Form 4539 and those of the transferee" has been omitted. ATF has been willing to transfer NFA weapons without the first sentence of the certificate. "I have no information indicating that the transferee will use the firearm or device described on this application for others than lawful purposes" until this litigation was threatened then they changed their position. The regulations seem to change from moment to moment. The validity of the Title 26 USC 5812(a) is not the issue in this case. The issues in this case are (1) a portion of the last sentence of 27 CFR 179.85 contained in the Law Enforcement Certificate. Specifically, the recruitment of other Federal and State officials into the registration scheme, and (2), if the regulation is held valid the appropriateness of a blanket refusal by those qualified signers to sign Form (4) for any applicant. Defendant Cruz contends that his inclusion in this suit is unfair because Defendant (Bureau of Alcohol, Tobacco, and Firearms, Department of Treasury) intends to exclude all U.S. Marshals as qualified signers. "At our first opportunity" (Government Exhibit K). Defendant Bureau of Alcohol, Tobacco and Firearms, Department of Treasury, also notes that the Department of Justice now prohibits U.S. Attorneys from signing Form (4) although they have not yet been specifically disqualified by ATF (Government Exhibit A 7). This eliminates all Federal officials now qualified to sign ATF Form (4). No doubt Defendant Reno would like to be excluded as she has indicated "I do not sign applications for firearms, permits or registration" (Plaintiff Exhibit B1), and all qualified signers under 27 CFR 179.85 would like to be excluded as Plaintiff is unable to find a willing qualified signer for legal weapons transfers. It was clearly Congress' intent to provide for the legal registration of these weapons and not to delegate to state officials, local police chiefs or other federal officials the right to ban their possession. ATF has acknowledged the difficulty of recruiting local officials into the regulatory scheme "Some law enforcement officials are reluctant to sign the certification as it is presently worded" (Plaintiff's Exhibit B6) letter February 12, 1982 Acting Chief, NFA Branch) and the U.S. Marshals' service seemed surprised to learn of this "long standing" regulation. "It has come to our attention that (BATF) requires written certification by a law enforcement officer", (Government Exhibit 1, letter April 12, 1982). Six states have banned possession of machine guns. Florida has prohibited their banning by municipalities and provided for their legal possession by statute FSA 790.221(3). Should this Honorable Court agree with the Federal Defendants' position the result will be a ban on NFA weapons which is specifically prohibited in Florida and not provided for by either state or Federal law. Legal ownership of machine guns for those who undergo photographing and fingerprinting has never been attributed to an increase in their criminal use. To now prohibit their possession at the whim of a minor local official through the so-called registration requirement is a clear abuse. Defendants state that the Director may by fiat refuse to register an NFA weapon. The law is clear. All persons are qualified except those specifically excluded. The Director does not have the discretion alleged by the Defendants. 26 USC Section 5812 must be read in its entirety. On this reading rather than by a portion of a sentence, it is clear what the standards are for possession of NFA weapons. Where there are published standards, discretion should not be attributed to the Secretary. Had Congress wanted to ban these weapons or given the Secretary absolute discretion on which citizens could own them, no standards would have been necessary. Congress detailed in the 1968 Gun Control Act which citizens would be allowed to own any weapon as well as the requirements of the NFA Act. Federal Defendants attempt to give examples of why a qualified signer would refuse to sign. These reasons cited by Defendants have a chilling result. "Its necessity was obvious; Congress wanted to keep these dangerous weapons out of the hands of the criminally inclined". Who are the criminally inclined. By the argument of the Defendants, they are not persons who have violated the law but those who might. The argument is, you may use this NFA weapon for an illegal purpose because you are criminally inclined. Although you have not violated the law (Defendants' Memorandum p. 11). But Congress said "The gangster as a law violator must be deprived". Prior to this, in 1934, felons could own NFA weapons. These Defendants have issued a blanket refusal to sign and not a reasoned one. Defendant, ATF Director is attempting to boot strap the powers of local police chiefs allowing them to arbitrarily ban NFA weapons, an option which is not even available to the Director. Defendant ATF complains that local officials are better able to determine local law. However, the Secretary is required by Federal law not only to be familiar with state and local law (Section 921 (a)(19) Title 18, USC) but annually publish, and distribute all Federal and State gun laws including city ordinances in the United States (Plaintiff's Exhibit D). ATF is well informed on the status of state and local law. The legal requirement that they be clearly shows that Congress intended ATF to make the determination regarding any violation of law. Dealers and owners of NFA weapons should not be required to sue multiple Defendants on each and every legal transfer of NFA weapons. It is the role of the ATF to conduct such registration and investigation as required. Federal Defendant argue that because the regulation has been in existence for some time it should given great weight. But the regulation has never been challenged before (Plaintiff's Exhibit B 6, letter Acting Chief, NFA Branch). There was never a need to challenge the regulation until the last qualified signer who was willing to follow the law was replaced. Now that there remains no qualified signer willing to abide by the requirement litigation has resulted and will continue (Exhibit E, pending litigation). In United States v. Freed cited by Defendants, the Court dealt solely with the issue of whether the Amendments to the NFA Act violated the Fifth Amendment in view of the new section 26 USC 5848 providing a prohibition against the use of registration in criminal proceeding. It lends no support to validating the recruitment of non-ATF or state personnel into the regulatory scheme. The facts of the case involved possession of unregistered hand grenades. Justice Brennan's concurring opinion clearly shows the administrative issues were not discussed "The only disclosure required under the Amended Act is that the transferee has received a firearm and is in possession of it" at 364. Sipes v. United States 321 F2d 174 (8th Cir 1963) cited by Defendants adds nothing to the discussion. The case involved a conviction under 26 USC 5851 for possession of a firearm with a barrel less than 16" in length. It dealt with the question of whether State regulations prohibited Federal regulation of firearms. Defendants have failed to meet the burden for the granting of a Motion to Dismiss the Complaint herein. Their motion should be denied and they should be required to answer. Respectfully submitted, EUGENE STEELE 155 South Miami Avenue Penthouse 1 Miami, Florida 33130 (305) 374-8166 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Motion was mailed by U.S. mail this 22 day of December, 1982, to Mark Cohen, Assistant U.S. Attorney, 155 South Miami Avenue, Miami, Florida 33130; and Ralph C. Rocheteau, Assistant County Attorney, 1626 Dade County Courthouse, 73 West Flagler Street, Miami, Florida 33130. ------------------- EUGENE STEELE