Davis v. Erdmann, No. 79-1382

• Decision Date: 15 October 1979
• Docket Number: No. 79-1382
• Citation: 607 F.2d 917
• Parties: Kenneth W. DAVIS, Jr., Plaintiff-Appellant, v. Ernst ERDMANN, Port Director, (Port of Tulsa, Oklahoma) Bureau of Customs, Department of the Treasury, and Rex D. Davis, Director, Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 917

607 F.2d 917

Kenneth W. DAVIS, Jr., Plaintiff-Appellant, v. Ernst ERDMANN, Port Director, (Port of Tulsa, Oklahoma)

Bureau of Customs, Department of the Treasury, and Rex D.

Davis, Director, Bureau of Alcohol, Tobacco and Firearms,

Department of the Treasury, Defendants-Appellees.

No. 79-1382.

United States Court of Appeals, Tenth Circuit.

Submitted Aug. 20, 1979.

Decided Oct. 15, 1979.

Robert S. Travis and Ralph H. Duggins, III, of Cantey, Hanger, Gooch, Munn & Collins, Fort Worth, Tex., for plaintiff-appellant.

Hubert H. Bryant, U. S. Atty., George Carrasquillo, Asst. U. S. Atty., Tulsa, Okl., and Ronald E. Williams, Washington, D. C., Bureau of Alcohol, Tobacco and Firearms, for defendants-appellees.

Before PICKETT, McWILLIAMS and BARRETT, Circuit Judges.

PICKETT, Circuit Judge.

This action was brought to review the refusal of the Director of the Bureau of Alcohol, Tobacco and Tax, an agency of the United States Treasury Department, to grant the application of Kenneth W. Davis, Jr., for a permit to import from England a device or weapon described as a "knife-pistol." The complaint alleges that the device is a curio or museum piece, primarily a collector's item, and not likely to be used as a weapon. It is also alleged that Davis had fully complied with all of the statutes and regulations permitting the lawful importation of the device, and that the Director's action in denying the application was arbitrary, capricious, and an abuse of discretion. These allegations were denied. By agreement of the parties, the matter was tried by a court magistrate, without a jury, who found that the action of the Director was arbitrary, capricious, and an abuse of discretion. The magistrate recommended to the court that the relief prayed for be granted. The Director filed objections to the findings, alleging that his action was lawful and within his statutory authority. In sustaining the objections, the district court held that the "knife-pistol" was a weapon within the meaning of 26 U.S.C. § 5845, and that the Director's determination that the device was not primarily a collector's item and would likely be used as a weapon was not arbitrary, capricious, or an abuse of discretion. The disposition of these issues is to be determined by the provisions of the National Firearms Act, 26 U.S.C. § 5801, et seq., the Gun Control Act of 1968, 18 U.S.C. § 921, et seq., and a review of the evidence.

In 1968, the United States was confronted with a rapid increase in major crimes throughout the country, including those committed by the use of firearms, particularly hand guns. For the purpose of assisting state and local governments in reducing the incidence of crime and to strengthen federal control over interstate and foreign commerce in firearms, Congress enacted the Omnibus Crime Control and Safe Streets Act of 1968. The Act included amendments to the National Firearms Act and the enactment of the Gun Control Act of 1968. Each of these acts in somewhat different language recognized the interest of many citizens in antique and unusual firearms. Provision was made to exempt such firearms from the acts. 2 U.S.Code Cong. & Admin.News p. 2197, 3 U.S.Code Cong. & Admin.News p. 4410 (1968). The Gun Control Act (1968) specifically stated that it was not the purpose of the act "to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trap-shooting, target shooting, personal protection, or any other lawful activity . . . ." Section 101, P.L. 90-618, quoted following 18 U.S.C. § 921. The 1968 legislation was intended to control widespread traffic in firearms and their availability to those whose possession was contrary to the public interest. Barrett v. United States, 423 U.S. 212, 218, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976); Huddleston v. United States, 415 U.S. 814, 824, 94 S.Ct. 1262, 39 L.Ed.2d 782 (1974).

Section 5845 of the National Firearms Act defines firearms and includes this provision: "The term 'any other weapon' means any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive . . .." 26 U.S.C. § 5845(e); see also 18 U.S.C. § 921(a)(3). Section 5845(a) also provides:

. . . The term "firearm" shall not include an antique firearm or any device (other than a machinegun or destructive device) which, although designed as a weapon, the Secretary finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector's item and is not likely to be used as a weapon.

Section 5844 prohibits the importation of firearms except under conditions which do not exist here. 18 U.S.C. § 925(d)(2) authorizes the Secretary to permit the importation of a firearm "as a curio or museum piece."

Congress has delegated the administration of the National Firearms Act and the Gun Control Act of 1968 to the Department of the Treasury of the United States, which acts through the Bureau of Alcohol, Tobacco and Firearms. The scope of court review of Bureau decisions is a narrow one. Generally, it is limited to determining whether the agency action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Although, under the statutory standard, the court cannot substitute its judgment for that of the agency, it should make a searching and careful inquiry to determine if the agency decision is based on a consideration of all relevant facts and is not a clear error in judgment. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 195 S.Ct. 438, 42 L.Ed.2d 447 (1974); ¹ Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); National Beef Packing Company v. Secretary of Agriculture and United States of America, 605 F.2d 1167 (10th Cir.), filed September 13, 1979; Sabin v. Butz, 515 F.2d 1061 (10th Cir. 1975).

Davis concedes that the knife-pistol was designed as a weapon and was within the "any other weapon" provision of Section 5845(e), but contends that it is primarily a collector's item not likely to be used as a weapon, and therefore not included in the Section 5845(a) definition of a firearm. Throughout the trial the Director admitted that the device is primarily a collector's item and a curio relic, but urged, as he does here, that it is not excluded from the provisions of the National Firearms Act because it is likely to be used as a weapon. Under this state of the record, there remains only the narrow question of whether there is any basis for the Director's finding that this particular knife-pistol is likely to be used as a weapon.

A review of the evidence discloses that Davis, a business executive and resident of Tulsa, Oklahoma, was a licensed dealer and collector of unique, odd or curiosity-type firearms. He was not engaged in the business of buying and selling such firearms, but collected them for his own satisfaction and the entertainment of others. He does not hunt and has not discharged a firearm...