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October 17, 2003

Dumb Collectors and Possibly Venal Cops

From the NEAL KNOX REPORT on Shotgun New's website comes this tale of jerk cops and dumb collectors.

‘Engaging’ Traps More Collectors

["Engaging", in this context, means collectors engaging in activities that constitute dealing]

By Neal Knox


WASHINGTON, D.C. (Oct. 20) – Eight St. Louis area collectors were indicted Sept. 28 for “engaging in the gun business” without a Federal Firearms License. They are the latest victims in the 40-year battle over the fuzzy definition of who must have an FFL.

[I have a collector's license. The definition of 'dealing' is fuzzy. Apparently deliberately so|

Vaguely defined “unlicensed dealing” carries more severe punishment than some willful violations by licensed dealers – plus the potential forfeiture of every gun in a collection, and the loss of gun ownership rights, firearms hunting rights, and often even voting rights – for life.

[True. Strange, but true.]

In addition to the ruinous legal costs of fighting a felony offense punishable by up to five years imprisonment and $250,000 fine, the St. Louis collectors – five of them 60 to 79 years old – have had 572 firearms seized.

[While some of these guys (read on) aren't all innocent - this does represent an odd application of enforcement power - since each of these guys has to follow the same rules as dealers when disposing of their collections, 4473's (the yellow form), Brady checks, etc, as well as any state and local laws that apply. And, unlike a dealer, who can separate his 'personal collection' from his business stock, we are told essentially to treat any C&R firearm, whether acquired with the license or without, as a "bound book,", i.e., recordable, weapon. You may not have to from a purely technical point, but if you can't prove how you got the weapon, they are going to assume you used the license, and ya better hope your jury is all guys and gals like me.]

[Update: I just realized that nowhere does the article list these guys as LICENSED collectors, which means the rules are different in terms of having to do paperwork. This actually complicates it for me, though not in the favor of the ATFE guys. There are state and local restrictions that govern selling guns, such as California requires ALL handgun transfers, even between private individuals, go through a federal 01 licensee. The only federal restrictions that I'm aware of regard interstate transfers of handguns, and the application of 'contiguous state' domicile issues. If these guys were simple collectors, who bought and sold their guns without the benefit of a license, this is even more troubling - the ATFE is essentially trying to get case law established that says if you own guns (no license involved) and you sell them, you are in violation? I need more info, and will send a note to Neal to see what the situation of the 'offenders' is. Anyone with illuminating info is invited to email or post a comment!]

Their guns were already the subjects of civil forfeiture suits. And the criminal indictments also demand their forfeiture – including antiques which are not subject to the Gun Control Act.

[Hey, law enforcement wants to confiscate your house - not just the window - if they can tie a window you bought to illegally obtained money.]

The grand jury also indicted a licensed dealer for allegedly selling at gun shows without maintaining required records or conducting background checks – something clearly forbidden in BATF instructions, but only as a misdemeanor punishable by up to one year imprisonment and/or $100,000 fine.

[He's an idiot - but notice the difference in potential penalties?]

The nine indictments are the result of a year-long BATF investigation in which undercover agents traveled to gun shows in other states to buy and sell guns.

[Trolling for trolls. I don't mind this that much. I see these idiots at gun shows and wonder how they get away with it. I especially don't like the guys selling post-ban guns as pre-ban to unsuspecting buyers. Ya want to flout the law in order to push a 2A case to the Supreme Court, well, okay, but I hope you're rich. Ya just want to flout the law because you don't like it... well that's your risk, good luck.]

The eight collectors are in a Catch-22. They do not qualify for an FFL under the laws and regulations imposed during the Clinton Administration, which upped the $10 annual license to $500 and required licensees to have a locally sanctioned business with special security systems and regular hours.

Those changes succeeded in meeting President Clinton’s stated goal of reducing the number of dealers – which dropped from about 260,000 to less than 60,000.

[I was one of the 200,000. It didn't bother me that much, because as I've said before, I collect mostly C&R. But it certainly would have affected me a lot more if I liked the stuff the Kim du Toit or the boys at Boots and Sabers like. I have mixed feelings about it. On the one hand, it's certainly an infringement - but only on doing business, not owning. And on the other hand, it was unpoliceable, and all sorts of silly stuff was going on. You could see it at the gun shows and flea markets]

Because of those more stringent rules for obtaining a license, the gray area between buying and selling guns as a hobby, and not for “livelihood and profit,” has broadened.

[I belong to several listgroups on this subject, The controversy rages. If I make $45 k a year, and sell out of my collection $5k of guns, am I making my livlihood at it? What if I sell one Henry Rifle, for $20,000? How do we distinquish from well off collectors and ones who aren't? The license lets you buy from wholesalers who will periodically clear their warehouses with 3fers and 5fers. If I buy a 5fer (five of the same kind of rifles), cherry-pick the best one, maybe two, and then sell the others - to plow that money back into my collection, am I dealing? Or facilitating a collection? That's the crux of the issue here. My personal feeling is you are skating pretty close to the line. If you hold on to them for a while, and dribble 'em out, is that different? Therein lies the dilemma. I avoid by having sold only one gun out of the collection]

James Martin, lawyer for one of the indicted men, 69-year-old Caesar Gaglio, told the St. Louis Post-Dispatch his client is a collector who did not need a license for the relatively few guns he sold. BATF had purchased seven guns from him at gun shows over a five month period. At a later show agents observed him at a table “with about 10 handguns and six long guns for sale.”

Martin said Gaglio “has a large personal collection and he has been retired. He has sufficient income from his pension and investments to support himself.” He was not trying to make his “livelihood” from gun sales, Martin said. The law exempts from the license requirement anyone who “makes occasional sales, exchanges, or purchases of firearms for the enhancement for a personal collection or for a hobby …”

[If I were seated on this jury, and the guy is simply liquidating his collection, he walks based on this info alone. If he's buying and selling, and in so doing, he's either modifying or upgrading his collection, he walks. It's only if you can show me that his buying and selling pattern represents that he's only skimming off the profit and not enhancing or changing focus in his collection, am I going to start looking hard. But you are still going to have a tough sell. Or, you can show he's otherwise not following the rules for sales that well all have to follow. Unfortunately for these guys, I'll never get selected for a jury like this - because I'm a licensed collector. I will offer myself up as a defense witness on what collecting is like, and help coach a lawyer who has to defend one of these cases, however. That's a standing offer where I live to the defense bar.]

In the raid on another indicted man, Elmer Pigg, 79, agents seized 138 guns and “$18,770 … derived from illicit gun sales,” according to BATF.

[I need a lot more info to have an opinion on this. Like I said before, some collectibles are high priced. This guy is in my ball park for overall numbers of guns owned, though. Not that I'm going to, but I wonder what the St. Louis ATFE guys would think if I just chose to sell my collection. I think they would assert that constitutes dealing. Which it isn't. If I sell off my car collection, porcelain Outhouse collection, comic book collection, does that constitute engaging in illegal commercial activity? Maybe if I turn right around and do it again. And again. And again. Without 'enhancing' my collection or putting the bucks to something else. Maybe. But I'm still not convinced. I haven't run a market value on the collection lately, but I know I could clear all my debt, except a small chunk of what's left on the house.]

The BATF and its predecessors have always opposed any objective standard of what constitutes an “illicit gun sale” – as opposed to unlicensed buying and selling for the purpose of enhancing a personal collection, which is specifically authorized in the law.

At the 1968 NRA convention in Boston, officials from BATF’s predecessor, the Alcohol and Tobacco Tax Unit of the Internal Revenue Service, discussed what constituted “engaging in the firearms business” at a crowded NRA Gun Collectors Committee Meeting.

The Midwest Region ATTU director considered the dividing line six gun sales in a year. The head of Boston ATTU contended two sales made a person a dealer. (That guy later charged a Fall River, Mass. memorial group with failure to register the 16-inch guns on the Battleship Massachusetts.)

[He was correct, on a technical note, but puh-leeeze. I'm sure the bubbas were going to find ammo and powder and shell Boston. Just go up to 'em, tell 'em they gotta do it, give 'em the paperwork. Charge them? That's just bullshit grandstanding.]

Significantly, the ATTU official from Washington declined to give an objective definition, saying “dealing” should be decided on a case-by-case basis.

[By unaccountable, unelected bureacrats, who work for people who many times have political ambitions - federal prosecutors. And as I've noted before, elsewhere, prosecutors want their jobs to be easy, so they want as much activity criminalized as possible (as long as they have discretion about prosecuting, and definitions to be as broad as possible - simply so that they can do a Good Thing, and put Al Capone away, even if all they can get him for is jaywalking. Of course, that's where the unintended (or intended, if you wear tinfoil hats) consequences come in. Such as when LE/ambitious prosecutor come in and use the overly broad law to whack amoebas. This makes collectors particularly good targets. Because you just have to say, "He had 150 guns in his basement." and people who don't know any better are going to mutter to themselves, "Glad they got that guy!" Another argument on the listserv is "Should you let people know you collect, and how much?" This is a tough call, and certainly has to take into account where you live. If you live in Malibu, as long as you are rich, and in accordance with California law, you're just going to be thought of as eccentric by your neighbors. If you live in a trailer, just outside of Malibu, those same people are going to not like you. I live in a gun-friendly stretch of Red America (Thanks, CNN, for making the conservative part of the country commie-colored) and I live in a low-crime area, so I let people know I collect, and what. I give talks and presentations on the collection. I loan bits of it out to the local JROTC unit for classes, for displays at the Command and General Staff college. For a couple of years, my Vickers machine gun was a centerpiece at ANZAC Day receptions hosted by the liaison/student officers of Australia and New Zealand here at the Fort. I've given presentations to Rotary, where the local police chief and sheriff are memebers. Why? Two reasons - one, it shows people who might otherwise be Gun Fearing Wussies that not every gun nut is dangerous, and that you actually CAN have a reason for having that arsenal in the basement. Two, the other guns nuts (two dentists, one doctor, the director of the local waterdepartment, a gargae owner, and two college professors) also came out of the closet. Point is, some big bad federal LE type comes to hassle me, I've got important, locally powerful people who have a far better idea of what's going on - including the publisher of the local newspaper. Doesn't diminish the propaganda value to federal law enforcement, but I can pull in a bevy of people as defense witnessess who will be hard to ignore.]

In 1979, while I was NRA-ILA Director, we copied the McClure-Volkmer bill’s definition of “engaging in business” directly from a landmark court case. At BATF’s insistence, that definition was fuzzed before the remnants of the bill passed in 1986.

What so often happens in cases of “unlicensed dealing” is that the accused cannot afford the legal costs to fight the case, and agrees to a single felony offense – losing all gun ownership rights – and forfeiting many thousands of dollars worth of guns. Those cases “make law,” further encouraging BATF.

The St. Louis indictments are the type of precedent-setting cases that caused us to create the NRA Firearms Civil Rights Legal Defense Fund in 1978 – which I hope will assist these cases.

[Note to defense lawyers: I'll help you to frame your cross examine and redirect questions.]

I am *NOT* a lawyer. The views expressed here are generally informed, but not legal advice! Your mileage may vary.