Abuses of the BATF

Kerby Ferris

By Neal Talbot

When the Bureau of Alchohol, Tobacco and Firearms (BATF) called Kirby Ferris's sporting goods store in Marin County, CA. to request an appointment for a spot inspection, Ferris thought to ask the agent calling what they were actually going to do in his store. The BATF agent informed Ferris that they were going to check his inventory and his records to see that everything was in order. Then, the agent mentioned that they were probably going to check some of the names of Ferris's customers "against the crime computer".

"That set me back", recalls Ferris.

"To the best of my knowledge, the form 4473 my customers fill out, when they buy a rifle or pistol (or shotgun), remains confidential to the dealer...unless an actual crime weapon or suspect is the issue of the search", he said.

Ferris, with some serious doubts about the legitimacy of this proposed BATF procedure, asked to call BATF back to confirm a later appointment time and date. He then immediately called a friend he believed versed in federal law. After talking to his friend, Ferris had serious reservations about the BATF copying any information from his files without a warrent. His friend instructed him in the meaning and intent of 5 U.S.C. 552, known as the "Privacy Act of 1974."

The appointment was made with BATF and when the agents arrived Ferris was waiting at his store with four witnesses and a video camera. Ferris then asked the agent to sign a carefully worded indemnity release that would hold him clear of violation of the "Privacy Act" and any subsequent suit against him by his customers for the improper use of confidential information. The BATF agent refused to sign the release and left the store.

Soon thereafter, Ferris was directed to Federal Law 18 U.S.C. 926 (2) (a). This section reads, "No such rule or regulation prescribed after the date of the enactment of the Firearms Owners Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or disposition be established. Nothing in this section expands or restricts the Secretary's authority to inquire into the disposition of any firearm in the course of a criminal investigation."

A few days later, BATF called to request that Ferris obey the inspection request. He carefully explained his doubts to the agent calling. He offered to cooperate fully in any warrented search for a crime suspect or in the trace of a crime weapon. He asked to speak to the top man in San Francisco, and Regional Director Harry Alder came on the phone and told Ferris he had to obey or his FFL would be revoked.

Ferris then sat down and wrote a letter demanding that BATF's Harry Alder "cease and desist" and reminded Alder that he, as a federal employee, was required to obey the law under 28 U.S.C., Section 1361. Basically speaking, this is a command for an officer to perform lawfully.

Ferris also reminded Alder of the Fourth Amendment to the Constitution of the United States.

Alder did not answer Ferris's written specific doubts about the legality of the BATF search. In fact, Alder's apparent response to Ferris's letter does not mention those legitimate inquiries by Ferris. Alder revoked Ferris's FFL and is now threatening Ferris with a $250,000 fine and/or five years in prison. Ferris was also denied a review by the BATF and believe he is being wrongly denied proper administrative due process.

Comments Ferris:"This is the start of what I have been now told is called 'Operation Forward Trace'. BATF agents are looking for specific types of firearms that fit a local 'crime profile'. The customer who has bought the 'crime profile' firearm has his name, address, and any other identifying information entered into a centralized crime computer to see if he is a felon. Since when is an American citizen suspected of criminal wrongdoing because he bought a certain type of legally available firearm?"

Ferris points out that this has sinister implications for rifle owners. California already has handgun registration. Documentation of a handgun purchase is filed at the State Capitol and with the local police chief or sheriff of the area where the customer resides. "Anybody knows that handguns are the 'gun of choice' for the huge majority of criminals. The 14-day waiting period for California handgun buyers is meant to check the criminal background of the purchaser before the gun is delivered by the store".

Ferris says he has no doubt that "Operation Forward Trace" is a quiet and deliberate effort to establish the owners and location of rifles, specifically semi-automatics. He believes that BATF has now defined semi-automatic rifles as "crime profile weapons".

"It is time for every FFL dealer in this nation to stand up to the BATF and demand that they show probable cause for this type of computer assisted search. This is a very ominous invasion of the privacy of every law-abiding American rifle owner. I cannot help but believe that this is the start of national gun registration. The BATF, in my sincere opinion, is asking me to disobey several distinct federal laws at their arbitrary request. I am going to stand my ground and see this thing out....in court if it is necessary. Gunowners should read 18 U.S.C. 926 (2) (a) and tell me if they honestly think that BATF isn't out of line with this 'Operation Forward Trace'".

Ferris is asking for financial support from firearms owners, other dealers and the gun industry. He has legal counsel but does not have the money to proceed with the action against the BATF that his counsel has outlined. He has requested that he be granted the review hearing that he was previously denied on a technicality. But he believes that he should certainly have counsel at that BATF hearing.

GUN WEEK readers are invited to call Kirby Ferris at (415) 381-1837 or write him at P.O. Box 603, Stinson Beach, California 94970. He welcomes inquiries and will send copies of all his relevant documentation to anyone who calls or writes him.

"We can fight this now, or we can fight it later. Now is not too soon, and later....well, later may be too late for the freedom of American gunowners," says Ferris.

"Operation Forward Trace", which Gun Week first reported on over two years ago, is also the subject of a case pending in a federal district court in Ohio. In that court challenge, the judge indicated that a decision would be forthcoming back in January, 1990. While no decision has been handed down as yet, the federal judge has prohibited BATF from conducting "Forward Trace" investigations in that jurisdiction pending his final ruling.

In the meanwhile, GUN WEEK has received reports, which have so far been undocumented, of BATF letters to individual gunowners who purchased more than one of the so-called "crime guns". These letters are purported to ask the individuals, who reportedly did not have records in the national crime computer, what disposition they had made of the guns in question.