Cite as Davis v. Erdmann, Case No. 75-C-356 Order of January 14, 1980 (N.D.Ok.) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA KENNETH W. DAVIS, JR., Plaintiff, Civil Action No. 75-C-356 V. ERNST ERDMANN, Port Director ORDER ON MANDATE (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. The Plaintiff, Kenneth W. Davis, Jr., a Tulsa, Oklahoma businessman and licensed collector of firearms, purchased a knife-pistol manufactured by the U.S. Small Arms Company from an English auction company in Sussex, England. The knife-pistol was shipped by the English company to Plaintiff and was received by the Customs Import Authority in Tulsa, Oklahoma. Plaintiff thereupon filed with the Bureau of Alcohol, Tobacco and Firearms a Form 6, Application and Permit for Importation of Firearms, Ammunition and Implements of War, requesting authorization to import the knife-pistol. The Bureau of Alcohol, Tobacco and Firearms denied the Form 6 application on the basis that the knife-pistol is a National Firearms Act firearm, as that term is defined in 26 U.S.C. section 5845, and that Plaintiff did not meet the importation requirements set out in 26 U.S.C. section 5844. Plaintiff thereafter requested that the firearm be removed from the provisions of the National Firearms Act by the Director, Bureau of Alcohol, Tobacco and Firearms, under his authority under 26 U.S.C. section 5845(a). Section 5845(a) provides that the term "firearm" shall not include any device (other than a machinegun or destructive device) which although designed as a weapon, the Secretary or his delegate 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. Plaintiff furnished several statements of curators of museums indicating that the knife-pistol in question was a "curio" or a "collector's item". Plaintiff also later indicated that he would have the knife-pistol made unserviceable by the placement of silver solder or [new page] epoxy in the barrel in order that the knife-pistol would qualify for importation under Chapter 44, Title 18, United States Code, should the Director remove the knife-pistol from the National Firearms Act. The Director, Bureau of Alcohol, Tobacco and Firearms denied Plaintiff's request to remove the knife-pistol from the National Firearms Act on the basis that he could not find that the knife-pistol by reason of its date of manufacture, value, design and other characteristics is primarily a collector's item and is not likely to be used as a weapon. The Director further determined that the placement of silver solder in the barrel of the firearm would not make it unserviceable. Plaintiff brought this action challenging the decisions of the Director, Bureau of Alcohol, Tobacco and Firearms as being arbitrary and capricious and asking the court to declare that the firearm be removed from the National Firearms Act and that Plaintiff be allowed to make the firearm unserviceable by plugging the barrel with silver solder or a high quality epoxy resin. The matter was tried without a jury before a Magistrate who entered Findings of Fact and Conclusions of Law to the effect that the decisions of the Director, Bureau of Alcohol, Tobacco and Firearms were arbitrary and capricious and recommended that an Order be entered directing the Director to issue the appropriate permit for the importation of the knife-pistol so that it may be made unserviceable. This court, after the filing of objections to the Findings and Recommendations of the Magistrate by Defendants, determined that the determinations by the Director, Bureau of Alcohol, Tobacco and Firearms with relation to the knife-pistol were not arbitrary or capricious, and that there was substantial evidence to support the determinations of the Director. This court entered its final judgement on March 20, 1979, in favor of the Defendants. An appeal was taken to the United States Court of Appeals for the Tenth Circuit. The Tenth Circuit concluded that the evidence was undisputed, that the knife-pistol was a collector's item, that there was no evidence that the knife-pistol had been used in the commission of a crime, and that there was no evidence that the knife-pistol in the possession of Plaintiff would likely be used as a weapon. The Tenth Circuit held that the denial of the importation permit was arbitrary and capricious and that the necessary permit to require delivery of the knife-pistol to Plaintiff should be issued. -2- No Petition for Rehearing or Petition for Certiorari was taken from the Circuit Court decision, and the mandate thereafter issued to this Court on December 6, 1979. In accordance with the Tenth Circuit's opinion, it is hereby ORDERED AND ADJUDGED that the Director, Bureau of Alcohol, Tobacco and Firearms will forthwith assign a serial number which will be affixed to the knife-pistol and that the Director, Bureau of Alcohol, Tobacco and Firearms will forthwith issue such order such order removing the U.S. Small Arms Company knife-pistol with such serial number from the provisions of the National Firearms Act. It is further ORDERED AND ADJUDGED that the Plaintiff will designate a gunsmith, qualified jeweler, or other qualified person who shall affix the assigned serial number and plug the barrel of the knife- pistol with a high quality epoxy resin such as to make the knife- pistol unserviceable and qualified for importatation under the provisions of 18 U.S.C. section 925(d). It is further ORDERED AND ADJUDGED that immediately upon notice that the assigned serial number has been affixed and that a high quality epoxy resin has been added to the knife-pistol in question in such a manner as to plug the barrel to the extent that a cartridge cannot be inserted therein and the knife-pistol thus rendered unserviceable, the Director, U. S. Bureau of Alcohol, Tobacco and Firearms, shall forthwith authorize the importation of the knife-pistol after it has been so rendered unserviceable under the provisions of 18 U.S.C. section 925(d), and upon receipt of such authorization, the Port Director (Port of Tulsa, Oklahoma), Bureau of Customs, Department of the Treasury, will take such steps as necessary to affect importation of the knife-pistol in question and its delivery to plaintiff Kenneth W. Davis. DONE AND ORDERED in Chambers at Tulsa, Oklahoma, this 14th day of January, 1980. H. Dale Cook UNITED STATES DISTRICT JUDGE Approved Ronald E. Williams Bureau of Alcohol, Tobacco and Firearms Attorney for Defendants Robert S. Travis Cantey, Hanger, Gooch, Munn & Collins Attorney for Plaintiff On Feb. 11, 1980, I took custody of the above described knife- pistol with the intention of delivering it to Mr. Dan Wallace, 2016 Utica, Tulsa, Okla. for the engraving of serial # 4500-037 and to have the barrel plugged as required by the court order and then inspect the knife-pistol and deliver it to the Customs Port Director for release to Mr. Davis. Robert J. White RAIC-Tulsa, Okla.