Part 4: “ATF has moved against honest citizens and criminals with equal vigor:”
Sen. Dennis DeConcini (D-AZ)
The ATF is not your friend
by Tanya K. Metaksa
In Part 3 (GW June 15), we covered the Bureau of Alcohol, Tobacco and Firearms (ATF) raid in 1971 that left a former US Air Force (USAF) security policeman, Kenyon Ballew, severely injured and unable to recover damages for the injuries he had sustained when his home was invaded. If Ballew was the only victim of ATF’s desire for cases to prosecute, the incident would have been forgotten by most, but Ballew was symptomatic of the way ATF enforced GCA’68. ATF intentionally went after law-abiding citizens who were not breaking the federal law intentionally and with malice. In fact, the agency loved to use entrapment schemes to lure gunowners—especially federally licensed firearms dealers—into breaking the law.
During the 1970s many more of these otherwise law-abiding citizens became victims of ATF abuse. As a result Sen. Dennis DeConcini’s (D-AZ) congressional hearing on ATF abuses heard testimony not only from Neal Knox, then Executive Director of the NRA Institute for Legislative Action (NRA-ILA) and Mike Acree, a former Commissioner of Customs.
After the conclusion of testimony from Knox and Acree, DeConcini told the Committee “We noticed in the attempts to put this together a great reluctance on the part of a number of witnesses to come and testify... But I can assure those who will testify today that if, in fact, they feel that any harassment is developed as a result of their testimony, that there will be at least one strong voice—and I am sure Senator McClure and others will join-in—exerting whatever pressure is necessary to see the individuals who have taken time and courage to testify today on specific allegations of abuse by ATF are not harassed or bothered.”
Then DeConcini called a New Hampshire gun dealer and his wife, David and Janet Moorhead. David, a totally disabled Vietnam veteran, opened a gun shop in New Hampshire. He was approached by a person to buy a gun without the required paperwork. He refused and immediately called the ATF District office to report the attempt. After alerting ATF he was harassed by agents about an M-14 that he owned. Finally, they barged into his house, handcuffed him and charged him with owning a fully-automatic firearm.
At the end of the trial Judge Bownes took the case away from the jury and said, I am “dismissing the indictment and I am dismissing it on two grounds that I don’t think there is evidence from which the jury could find beyond a reasonable doubt that this was a machinegun as defined in the statute. I am also dismissing it on the further grounds that there is no evidence from which the government has shown at all that the defendant knew or should have known that this weapon was or could be converted into a machinegun.” Bownes went on to say, “And I want to say to you, Mr. Moorhead, that on behalf of the government, I apologize. I don’t think this case should have been brought. At most, we have here a technical violation. And now this man has lost his license as a result of the indictment. And, Mr. McLaughlin, I am informing you that I want you to try immediately to get his license back.”
At the end of his testimony, David Moorhead, went on to tell the senators that he was not the only person arrested at that time. He produced a newspaper with the headline, “Illegal gun sales charged, police officer at Hillsborough among accused.” The author of that article penned a follow-up article that said, “Several persons arrested in headline-grabbing ‘gun raids’ by Federal agents this week have told the Sunday News they believe they are the victims of ‘trumped-up charges’ as part of a campaign to reduce the number of gun dealers and win favor for gun control legislation.”
The next witness was J. Curtis Earl, who held a federal firearms license as well as a Class 3 license for fully automatic firearms. He testified that in 1976, “I had had a compliance inspection by one of the regulatory agents and was 100% correct.” He went on to say that around April 1977, “I had a compliance inspection by a regulatory agent who also gave me a clean bill of health.” However, in June of 1977 a group of approximately 10-15 police personnel with both a still camera, and movie camera led by two ATF agents, Charles Walker and Dave Finney, came to his house with a search warrant. Earl said that after showing their search warrant the two agents told Earl, “We want all locked doors, your vault, safe unlocked or we will blow it open.”
The reason for the extraordinary personnel on the search warrant was that Earl was the largest Class 3 dealer in the country and ATF believed he was purchasing machineguns illegally. They alleged that a transfer of five automatic firearms from Donald Lane, the police chief in Kearny, AZ, had been done to give Earl the military and police discount on the purchase of these weapons. Over a year later in December 1978 Earl’s case went before a grand jury. The grand jury returned a “no bill” against him while indicting Donald Lane on two counts. Yet, two months later Chief Lane was acquitted in a court of law on both counts.
After his testimony at DeConcini’s hearing, Earl launched an $8.4 million lawsuit against ATF for “malicious prosecution.” After a short while he stopped pursuing the suit because he believed that unless he dropped the lawsuit “the Feds will not renew” his license. In order to continue his business as the biggest machinegun dealer he needed that license to maintain his livelihood and his reputation.
R.C. Lindsey from Stuart, FL, followed Earl. Lindsey testified that he was a regular firearms dealer until June 11, 1974 when he was visited by special agent George R. Truitt. The agent, according to Lindsey, was arrogant, critical, nasty and as he was leaving he told Lindsey, “Mr. Lindsey, if you want to keep your gun license, I will see to it you have to hire a lawyer.”
On Aug. 14, 1974 he received notification that his FFL renewal had been declined. As special agent Truitt predicted, Lindsey did “have to hire” an attorney and went to court to renew his license. Lindsey requested a hearing and the hearing was held before a Mr. McDivit, who Lindsey later learned had written on July 19, 1974 that Lindsey’s license renewal should be denied.
After the hearing McDivit concluded that, “the applicant willfully violated the provisions of the Gun Control Act of 1968 and does not qualify for licensing. I recommend the denial of notice of application.” Lindsay followed this hearing with Freedom of Information requests to ATF for information on his denial. It took 53 days for ATF to produce the documents leaving Lindsey only a week to file for a Petition for Review of Denial of Federal Firearms License.
After reviewing Lindsey’s petition for review ATF handed down its final decision on Jan. 6, 1975. McDivit’s conclusion was upheld. Lindsey then filed suit against ATF.
Before the lawsuit went to court, the US government’s attorney, Steven Burrow, reviewed the evidence and decided to settle with Lindsey. The agreement dismissed all allegations made by ATF as to why they denied Lindsey’s renewal application and directed ATF to allow Lindsey to reapply.
On the following day ATF was called before the Committee. Although they tried to give excuses for the actions of some of their agents, the damaging testimony had been given. It became obvious that the enforcement of the 1968 Gun Control Act was not consistent throughout the agency and that overzealous interpretation of the law by agents was rampant. An additional hearing was held in September 1980. These hearings set the stage for a change in the law that would take seven long years to come to fruition—the McClure-Volkmer (Firearm Owners Protection) Act.
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