Gun South, Inc. v. Brady

• Decision Date: 26 April 1989
• Docket Number: Civ. A. No. 89-AR-0551-S.
• Citation: 711 F. Supp. 1054
• Parties: GUN SOUTH, INC., Plaintiff, v. Nicholas BRADY, Secretary of Treasury; Stephen E. Higgins, Director of the Bureau of Alcohol, Tobacco and Firearms; and William Von Rabb, Commissioner of the United States Customs Service, Defendants.
• Court: U.S. District Court — Northern District of Alabama

711 F. Supp. 1054

GUN SOUTH, INC., Plaintiff, v. Nicholas BRADY, Secretary of Treasury; Stephen E. Higgins, Director of the Bureau of Alcohol, Tobacco and Firearms; and William Von Rabb, Commissioner of the United States Customs Service, Defendants.

Civ. A. No. 89-AR-0551-S.

United States District Court, N.D. Alabama, S.D.

April 26, 1989.

James C. Barton, Robert S. Vance, Jr. and Robert H. Smith, Johnston Barton Proctor Swedlaw & Naff, Birmingham, Ala., for plaintiff.

Frank W. Donaldson, U.S. Atty., George Batcheler, Asst. U.S. Atty., Nicholas Brady, Sec. of the Treasury, Dept. of the Treasury, William Von Raab, Com'r., U.S. Customs Services, Office of Legal Counsel, Teresa Troy, Stephen E. Higgins, Bureau of Alcohol, Tobacco & Firearms, Office of

Legal Counsel, John R. Bolton, Sandra M. Schraibman, Alan L. Ferber and Shawn Jensen, Dept. of Justice, Civ. Div., Washington, D.C., for defendants.

MEMORANDUM OPINION

ACKER, District Judge.

Gun South, Inc., seeks declaratory and injunctive relief against, or a writ of mandamus directed to, Nicholas Brady, Secretary of Treasury, Stephen E. Higgins, Director of the Bureau of Alcohol, Tobacco and Firearms, and William Von Rabb, Commissioner of the United States Customs Service. Pursuant to Rule 65(a)(2), F.R. Civ.P., the court, without objection by any party, telescoped the original prayer for a preliminary injunction into a consideration of the merits. Defendants filed both an answer and a motion for summary judgment which defendants agreed could be taken under submission earlier than the regular ten-day period mandated by Rule 56, F.R.Civ.P., in order that the entire matter could be decided as expeditiously as possible. The nature of the relief sought and the nationwide importance of the issues presented call for an immediate disposition, particularly when the issues are predominantly, if not exclusively, issues of law and not of fact.

Recognizing that the government is very much interested in the outcome of this case, and mindful that the Eleventh Circuit earlier found this court to have "become hardened against the government," this court, as it promised to do in In Re: Possible Recusal of William M. Acker, Jr. in Government's Cases, 696 F.Supp. 591 (N.D.Ala.1988), examined itself, declined to find itself disqualified, and thereupon moved the case toward disposition as rapidly as the court's and the parties' schedules would permit. The parties agree that most, if not all, of the facts upon which they respectively rely are undisputed, and that the case basically resolves itself into a question of law. The parties, of course, disagree over the relative significances of various undisputed facts, and, of course, they disagree over the conclusion to which the undisputed facts must lead.

The court not only received evidence and heard oral argument on April 6, 1989, at a preliminary injunction hearing, but has subsequently received and considered numerous affidavits and documents, uncontradicted as to the facts contained therein. Some of the affidavits do contain "conclusions" or "arguments" which have been taken by the court as if they are parts of the well-written briefs.

Findings of Pertinent Facts

The court will not make findings as to every fact which one or more of the parties holds up as important. The court will limit its findings to the relevant facts, i.e., those facts upon which the court will rely for its ultimate conclusion.

At all times pertinent Gun South was a wholesale gun dealer in the United States, with its only place of business located in the Northern District of Alabama. It held valid federal licenses under 18 U.S.C. § 923 and 27 C.F.R. §§ 178.41-.60. Gun South had and has an exclusive contract with an Austrian gun manufacturer, Steyr-Daimler-Puch, for the importation and distribution of Steyr rifles within the United States. At all times pertinent, Gun South was duly registered, pursuant to the Arms Export Control Act of 1976, to engage in precisely the business it was in.

On October 4, 1988, defendant Higgins, as Director of ATF, issued to Gun South a written permit to import 1,700 Steyr AUG "semi-automatic rifles" and 200 "receiver assemblies." This permit contained a special stamp in addition to the printed material. The stamp said: "NOT TO INCLUDE FULLY AUTOMATIC FIREARMS." The weapons listed and described on the said permit are semi automatic. Generally speaking, a semiautomatic weapon like the Steyr AUG requires that the trigger be pulled for the firing of each round, whereas a fully automatic weapon allows rapid, repeating fire as long as the trigger remains depressed. The perfect example of a fully automatic weapon is, of course, a machine gun. On February 21, 1989, Director Higgins issued to Gun South another permit, this time authorizing the importation of an additional 3,000 Steyr AUG rifles and an additional 200 receiver assemblies.

These two permits were lawfully issued pursuant to 18 U.S.C. § 925(d)(3). They were regular in every respect. This statute, in the form in which it existed when these permits were issued, contains the following language:

(d) The Secretary of Treasury, the department which contains the ATF, which, in turn, is in charge of the firearm aspect of the Secretary's responsibility shall authorize a firearm ... to be imported or brought into the United States or any possession thereof if the firearm ...

* * * * * *

(3) is of a type that does not fall within the definition of a firearm as defined in section 5845(a) of the Internal Revenue Code of 1954 and is generally recognized as particularly suitable for or readily adaptable to sporting purposes ...

* * * * * *

The Secretary shall permit the conditional importation or bringing in of a firearm ... for examination and testing in connection with the making of a determination as to whether the importation or bringing in of such firearm ... will be allowed under this subsection.

(emphasis supplied).

A separate statute, 18 U.S.C. 924(a), establishes that the importation of an unapproved firearm in violation of 18 U.S.C. § 925(d)(3) constitutes a crime against the United States. This statute says:

Penalties

(a)(1) ... whoever ... willfully violates any ... provision of this chapter, shall be fined not more than $5,000, imprisoned not more than five years, or both....

The permits issued by ATF to Gun South on October 4, 1988 and on February 21, 1989, were not accompanied by any oral or written warnings or reservations or caveats. They were clear and unequivocal.

On January 23, 1989, acting pursuant to its permits, Gun South ordered and inalterably obligated itself to pay no less than $700,000 for 800 Steyr AUG semi-automatic rifles and certain accessories, none of which accessories can be used to convert the rifles into fully automatic weapons. Gun South obligated itself to pay this $700,000 in advance toward a larger total purchase price. This constitutes, in effect, an out-of-pocket expense for Gun South. Gun South is absolutely committed to at least $700,000, from which there is no retreat. The funds are guaranteed by Gun South's local bank.

At the time Gun South first undertook to become Steyr's dealer in the United States, Gun South sought, and obtained from Edward M. Owen, Jr., the Chief of ATF's Technology Branch, a written finding or determination that the Steyr AUG "has been approved for importation as a firearm which is suitable for sporting purposes." It must be assumed that this approval was after the "examination and testing" called for by § 925(d). The finding tracked the statutory language in § 925(d)(3), and was intended to do so. Further explaining, Mr. Owen wrote in the same approval letter to Gun South: "This classification means that the AUG semi-automatic rifle may be imported by licensed importers for resale in the civilian marketplace." This last sentence was a free, but sound, piece of legal advice.

Between the date upon which the last permit was issued by ATF to Gun South and March 15, 1989, there was no change in the controlling statute, no change in the controlling federal regulations or in ATF's permitting procedures, no change in the design of the AUG, and no change in the official ATF finding that the AUG is suitable as a sporting gun.

In recognition of the growing problem of drugs and drug-related crimes of violence in the United States, President Bush, after his inauguration in January, 1989, with Congressional approval, created a new cabinet-level position and agency. The agency is entitled, "Office of National Drug Policy." President Bush then appointed William H. Bennett as what the media immediately began to refer to as the "Drug Czar." Insofar as this court has been able to ascertain, the Office of National Drug Policy has no precise statutory interconnection with, or official relationship with, the Department of Treasury or to either of its sub-agencies, ATF or the Customs Service, but it is obvious that the President intended to clothe Director Bennett with broad powers to address a widely perceived and serious societal problem.

Director Higgins has filed an affidavit in support of defendants' motion for summary judgment. Even if he were not entirely credible, he is uncontradicted when he says:

In the early part of March, 1989, William J. Bennett, Director, Office of National Drug Policy, and I discussed the growing problem presented by semi-automatic assault-type rifles and their use in crime in the United States. ATF's authority to approve or disapprove the importation of assault-type rifles under 18 U.S.C. § 925(d)(3) was discussed in the course of these discussions.

Pursuant to the discussions between Director Bennett, Secretary Brady, and myself, on March 14, 1989, Director Bennett announced that Secretary Brady had decided to suspend, effective immediately, the importation of several makes of assault-type weapons, pending a decision as to whether these weapons are, as required under § 925(d)(3),

...