Closed: Borchardt Rifle Corporation

[Ray Newman]

Silver City Gun Firm Loses Appeal
By Journal Wires on Thu, Jul 12, 2012

SANTA FE — A federal appeals court on Tuesday affirmed a ruling that revoked the firearms license of Borchardt Rifle Corp. of Silver City.

Members of the Bureau of Alcohol, Tobacco, Firearms and Explosives in 2007 said they found numerous violations of the Gun Control Act by Borchardt.

Some of the violations had also been spotted in 2002, the year Borchardt owner Al Story received the license.

The AFT in 2008 revoked Borchardt’s license based on repeat violations.

Borchardt filed a petition for review in U.S. District Court, challenging the revocation by arguing that Story did not willfully violate the act.

Story lost that appeal and also the second one decided Tuesday by a panel of three judges from the U.S. 10th Circuit Court of Appeals.

“The errors which served as a basis for revocation of Borchardt’s federal firearms license were not inadvertent errors or technical mistakes, but rather were a systematic and continuing failure to abide by known legal requirements,” the judges said in their decision.

Ruling for the government and against Story were Chief Judge Mary Beck Briscoe of Lawrence, Kan., Senior Judge Bobby Ray Baldock of Roswell and Circuit Judge Jerome Holmes of Oklahoma City.


http://www.24hourcampfire.com/ubbthread ... _th#UNREAD

[JReed]

That sucks.

[Ben_Rumson]

The link comes up as a discussion on the 300 Win Mag ???

[earlmck]

I wonder what dangerous paperperwork "violations" a fellow could make while building faithful reproductions of an 1878 single-shot rifle? I sure would have liked to have one of Mr. Story's rifles, too.

[AJMD429]

The link comes up as a discussion on the 300 Win Mag ???

If Ray Newman reads this, he might want to check...

...maybe the LINK is wrong.....?????

[rabbit hunter]

I know Al Story personally and have done business with him. He is an honerable person as well as a very good gunsmith: a super barrel maker. I suppose this is another example of the BATF arbitrarily taking a man's livelyhood away on a whim. I simply don't believe he would intentionally violate the law. Of course, the law is always so darned complicated no ordinatry man can comprehend it. It must be written that way on purpose so they can prosecute law abiding citizens. This just makes me sick!

[Ray Newman]

Try this link:

http://www.24hourcampfire.com/ubbthread ... _th#UNREAD

[klhill]

Sorry to hear about this. I too have dealt with Al and stopped in at his shop a number of times.He did a 327/32-20 conversion on an OM Ruger for me.Great gunsmith, he even does own rifling and color-case hardening.Always a nice guy to visit with.

[Ray Newman]

From the 15 page Appellate Court record:
Pages 4-5

“In the June 2002 inspections, an ATF officer inspected Story’s records and business premises... . During the inspection, Story signed an acknowledgment of ATF rules and procedures, stating that the rules and procedures were thoroughly explained to him by an ATF inspector and all of his questions regarding the rules were answered. The inspector found four violations—failure to properly record necessary information in the record book, failure to properly complete more than one-third of the Form 4473s on file, failure to pay taxes associated with gun sales, and failure to distinguish personal inventory from business inventory. Story acknowledged these mistakes and signed a statement that he had corrected them.”

“In August 2007, another ATF agent conducted a second compliance inspection, reviewing Story’s records from 2004 to 2007.3 The 2007 Inspection Report lists twelve violations, with many consisting of multiple infractions. In total, Story had fifty-two Form 4473s on file, and forty-three of those forms contained errors.4 Several violations were repeated from the 2002 inspection, indicating that Story had already been informed that the conduct at issue was a violation but had still repeated the same conduct. The repeated violations were violations of 27 C.F.R. 478.21(a) (failure to properly execute Form 4473 in seventeen instances); 27 C.F.R. 478.123(g) (failure to properly maintain the record book); 27 C.F.R. 478.124(b) (failure to properly file Form 4473 in twelve instances); 27 C.F.R. 478(c)(1) (failure to properly complete Form 4473 in thirty-two instances); 27 C.F.R. 478.124(c)(5) (failure to sign and date Form 4473 in twelve instances).5 Story stated that the repeat violations were all oversights and that he could
not account for the mistakes.”

[Footnotes 3-5 below]
“3 After Borchardt received its license, Story began conducting this business through the corporation. For clarity, we continue to refer to the Borchardt corporation as Story, as he is the corporation’s sole owner and operator, and because his state of mind is at issue in this case.

“4 By year, all thirteen of the 2004 forms had errors, all seven of the 2005 forms had errors, fourteen of the twenty 2006 forms had errors, and nine of the twelve 2007 forms had errors.

”5 His other violations included failure to report the loss of a firearm in a timely fashion; two instances of transfer of a firearm without conducting a background check; transfer of a firearm without completing Form 4473; failure to properly record type of identification used on Form 4473 in six instances; failure to record NICS information on Form 4473 in twenty-eight instances; failure to record firearm type on Form 4473 in five instances; failure to properly add information to the record book in fifty-nine instances.”

Pages 7-8

The district court astutely noted that the parties’ real dispute was not over what standard must be met to establish willfulness, but rather what type of evidence is needed to prove willfulness. Story argued that Cook was required to present direct evidence of Story’s state of mind at the time the violations of the Gun Control Act occurred. In contrast, Cook relied largely upon circumstantial evidence—in particular, Story’s repeated violations of the Act after the ATF advised him of the Act’s reporting requirements. The district court agreed with Cook and concluded that Story’s state of mind could be proven through circumstantial evidence, and that the evidence of Story’s to the Act’s requirements. Id. at 53, 56–58 (citing RSM, 466 F.3d at 317 (‘Because Valley Gun repeatedly violated requirements of the Gun Control Act with knowledge of the law’s requirements and after repeated warnings by ATF, we hold that Valley Gun’s plain indifference toward its known legal obligations satisfies the willfulness requirements in 18 U.S.C. § 923(e)’”)). In particular, the district court found that the high error rate, Story’s testimony that the errors were “oversights,” the ATF’s previous instruction to Story on how to comply with the law, and the errors repeated from the 2002 inspection “conclusively establish[] that [Story] was aware of the regulations imposed on him] and yet, despite that knowledge, [Story] continued to violate those same regulations . . . demonstrat[ing] plain indifference to [his] legal obligations.” Id. at 41. Based on this conclusion, the district court granted Cook’s motion for summary judgment and affirmed her decision to revoke Borchardt’s federal firearms license.”

Page 12

“We join our sister circuits and hold that, after a dealer has been informed of the Gun Control Act requirements and warned of violations, a dealer’s subsequent repeat violations suffice to show plain indifference to the statutory requirements.”[Italics added: RCN]

Page 13-15

“First, Story maintains that his actual error rate was very low, roughly three to six percent, and that this low error rate only supports a finding of negligence. He arrives at these numbers by dividing the number of incorrectly completed information blanks by the number of Form 4473s at issue multiplied by the number of information blanks per form. Aplt. Reply Br. at 3. This approach obscures the fact that ninety percent of Story’s Form 4473s were completed incorrectly. Although the completion of each form presents numerous opportunities for error, on the whole Story’s error rate was very high. In light of his numerous past violations, when coupled with his present high error rate, more than mere negligence is evident.

“Second, Story argues that the mistakes were due to carelessness, as Story testified at the administrative hearing. He notes that the Supreme Court has equated carelessness to negligence, not plain indifference. This argument fails because it relies on the reasoning behind Story’s first argument, that the past violations should not be considered evidence of Story’s state of mind at the time he committed the infractions. Based on our holding here, the evidence in the record compels the conclusion that Story acted with plain indifference, in spite of his own statements that the violations resulted from carelessness. Story’s continued carelessness, in the face of Story’s acknowledged prior violations and his understanding of the Gun Control Act requirements, amounts to the plain indifference necessary to support Cook’s willfulness determination.”
***
“In summary,…. Story knew of the regulations, had violated them in the past and been warned of the need for compliance, and then continued to violate the same regulations.12 This evidence shows Story was plainly indifferent to his ongoing reporting requirements under the law, despite his awareness of the law’s requirements. His plain indifference rises to the level of willfulness under 18 U.S.C. 923(e). The errors which served as a basis for revocation of Borchardt’s federal firearms license were not inadvertent errors or technical mistakes, but rather were a systematic and continuing failure to abide by known legal requirements.”

Read all ‘bout it:
http://docs.justia.com/cases/federal/ap ... -07-10.pdf

[Ji in Hawaii]

What a shame, there are such nice looking rifles.

[Streetstar]

I hate to hear of a man that makes cool stuff getting shut down ------- it sure sounds like he wasn't much of a paperwork wizard though

[KirkD]

It used to be that the law concerned itself with activities that harmed people, not with the proper filling out of forms which, themselves, have utterly failed to keep guns out of the hands of felons. The law finds itself enforcing the letter of the law, not the intent.

[Bridger]

I hate to say this, but sounds like he was in fact breaking the law, whether it is just or otherwise, and he is going to have to deal with the consequences. The laws are ridiculous anyway, and the ATF is a bunch of thugs. But rules are rules.

[Griff]

What it sounds like, is the hounding of a man who loves making fine arms, and could care less about Gov't oversight. As to the letter vs intent of the law... the intent is to have a form for every gun sold... the letter is to have every form filled out, 'i' dotted and 't' crossed. Judges are supposed to be the "reasonable men" to differentiate between the two. However, they are constrained by the need to maintain a standard and, in this instance, not set a precedent that would allow other firearms manufacturers/retailers to become so lax in their recordskeeping. IMO, it seems they (BATFE), have decided to make an example of this single-shot rifle maker to those that build more "sophisticated" arms... and possibly contribute more to the political futures of persons un-named... or is it because someone sees that even the shutting down of one manufacturer is a good thing, (especially if he doesn't build something they'd find useful in their own fiefdom).

I have no doubt that many a retail operation has similar if not less lax standards. What Mr. Story needs, is a paper-work detail oriented person running that retail portion of his business, while he concentrates on building guns.

Nope, I ain't an "expert", nor did I sleep in a Holiday Inn last night.

[Ray Newman]

Here’s my take on this.

Borchardt Rifle Corporation was its own worst enemy.

A prior ATF inspection found problems with the 4473 forms, paying taxes, and background check information, etc.

Even though Borchardt Rifle Corporation corrected some of these violations, the corporation still continued to make more of the same.

A reasonable person would take the necessary remedial steps to avoid any more problems with ATF.

And it is common knowledge in the shooting community that since the Clinton administration, ATF has been cracking down on slip shod firearms dealers, manufacturers, and gunsmiths. Difficult to understand that as a result of the earlier inspection problems, Borchardt Rifle Corporation could not or did not realize or understand that it was on ATF radar screen and would be subject to closer scrutiny.

The tragedy is that the Brady Center, Cease Fire, et al, have another example to use against us.

Griff: well said about the law’s intent.

[rafter-7]

It is a shame my original is sure a hoot to shoot



my daughter holding a 1978 40/70 BN




the trigger pull is a bit to be desired but it is dead on with paper patch and black

rafter-7

[MrMurphy]

Agreed. Gunmaker does not equal paperwork genius.


Sounds like he needed a secretary at the least, and a business manager (even part time) reviewing records and papers and correcting taxes as a better plan.

[Ysabel Kid]

That sucks.

+1