Thursday, October 02, 2008

BATFE Takes It on the Chin--Deservedly

Arcane, but important.

In a major victory for those of us arguing that the National Firearms Registration and Transfer Record (NFRTR) is insufficient for criminal proceedings, Dr. Fritz Scheuren, “the” statistician in the United States (possibly the world), today informed the United States District Court, Western District of Oklahoma, (The Honorable Tim Leonard) that the NFRTR is insufficient for criminal proceedings. While no decision has been rendered in the case of US v. Larry Douglas Friesen (CR-08-41-L), this is a MAJOR defeat for the BATFE, who, over the years, has argued that although the NFRTR is flawed, it still can be used in criminal proceedings. To understand just how flawed the NFRTR is, see my article on the NFRTR violating Due Process

In brief: the National Firearms Act (NFA) was created in the 1930's, and was a tax law (thus evading potential 2A problems.) Part of the legislation was the creation of the NFRTR (the Registry of all these taxed firearms.) At the time this was enacted, there were concerns that owners of covered weapons might 'lose the paperwork,' whether through negligence or disaster (e.g., fire, flood, etc.) and that NFRTR copies should be available.

The problems with NFRTR documentation held by BATFE are manifold. In 1979, the Attorney General's office issued an audit report including the following language:

The amnesty period spawned a massive volume of registrations, transfers and correspondence which the clerical staff was ill-equipped to handle. As a result, some weapons were registered, some were mistakenly registered by part number rather than serial number, and some documents were misfiled. The staff responsible for the system was aware of these

SCOTUS was not aware of the above report, and in Freed, they declared that the NFA (and NFRTR) did not violate the 5th Amendment, nor due process rights. Problems with NFRTR continued through the 1960's, 1970's, and 1980's--the numbers simply would not add up on the Registry; either BATFE was running its own (illegal) amnesties and adding weapons, OR it was 'discovering' lost/misfiled paperwork and adding to the NFRTR.

In several different cases over the years, BATFE would bring criminal actions against dealers or individuals for possession of non-registered (NFRTR) weapons, only to be confronted with the original documents (fortunately) still in the possession of the dealer or individual.

Internal to BATFE, this became a serious "face" issue:

Our response to inquires on the existence or nonexistence of proper registration of an NFA firearm is the basis for seizure, arrests, prosecution, fines, and imprisonments. Our testimony or certification of the nonexistence of such record is evidence subject to close examination in
court. We continuously discover discrepancies and inaccuracies in the registration file which, if discovered during trial, would destroy the future credibility of such evidence. One resultant possibility is that a defendant who maintains he had properly registered his firearm but had lost his approved form could, subsequent to his arrest based on non-registration, locate his lost document. If the court should discover that our negligence caused an unwarranted arrest and trial, the resultant loss of public trust would be irreparable. Just as serious is the possibility that an innocent man might be convicted if he could not find his registrant form and we certified that he had not registered the firearm when, in fact, we had failed to locate his registration in the Record [NFRTR].

(It is interesting that the possibility of convicting and jailing an innocent man is SECONDARY to BATFE's "loss of credibility" in this memo, no?)

In 1995, a very enthusiastic BATFE (NFA Branch Chief) appeared in a training video, ordering the trainees to testify in courts that "NFRTR is 100% accurate"--which would, of course, be perjury. The very same man also stated that the NFRTR error rate was 'about 49-50%' before he became NFA Chief--but that in only 1 year, he had reduced the error rate to only 8%.

That is a remarkable achievement indeed, if you believe what he said.

Of course, you cannot. BATFE's registry is chock-full of errors--and the Oklahoma case cited above may well be the beginning of the end of the "jackboot-thug" era of BATFE enforcements.

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