FOIA Response Confirms NFRTR Data Unreliable for Prosecutions

By David Codrea

USA – -(Ammoland.com)- “NFA database seriously flawed,” attorney and author David T. Hardy charged Wednesday on his Of Arms and the Law blog. “Mind you, felony prosecutions are undertaken relying on the NFRTR to establish that a gun is not registered, and with evidence consisting of an affidavit from the custodian of records for the NFRTR certifying that no record of registration could be found.”

He is talking about the National Firearms Registration and Transfer Record, “the central registry of all NFA [National Firearms Act] firearms in the U.S. which are not in the possession or under the control of the U.S. Government.”  And by “fil[ing] a Freedom of information Act suit pending in D.C. District Court, where I’m represented by progun attorney Stephen Stamboulieh,” Hardy has obtained “some of the work papers of a Justice Department Office of Inspector General audit of the NFRTR … which is consulted to see if a firearm is registered.” (Link to data summary is here.)

Received files include results from an Office of Inspector General survey of ATF’s Industry Operations Inspectors (some of whom have glorious backgrounds of their own), which in turn has produced some interesting conclusions from the people assessing citizen compliance:

“OIG asked how often there was a discrepancy between the inventory and what the NFRTR said the inventory should be: 46% of inspectors said either ‘always’ or ‘most of the time.’ (Only 5% reported ‘never’). How often was the discrepancy found in the NFRTR? 44% said always or most of the time, only 6% said ‘never.’”

In their own words, some of the inspectors say they know “the register will be incomplete or inaccurate,” that “discrepancies in the NFRTR make it impossible to verify the onsite inventory,” and that they will “encounter discrepancies on a daily basis.”  Yet despite that, per Hardy, “felony prosecutions are undertaken relying on the NFRTR to establish that a gun is not registered, and with evidence consisting of an affidavit from the custodian of records for the NFRTR certifying that no record of registration could be found.”

Think about that.

These results provide irrefutable corroboration for why ATF folded in the U.S. v. Friesen illegal machine gun possession case back in 2008. As noted at the time by attorney Joshua Prince:

“In a major victory for those of us arguing that the National Firearms Registration and Transfer Record (NFRTR) is insufficient for criminal proceedings, Dr. Fritz Scheuren, “the” statistician in the United States (possibly the world), today informed the 10th District Court that the NFRTR is insufficient for criminal proceedings.”

That’s hardly the first time the unreliable nature of the government’s records has been established.

37 years ago in United States v. Seven Misc. Firearms, 503 F. Supp. 565 (D.C. 1980), the court noted:

“However, the Association offered extensive evidence in the form of reports of officials of the Bureau to demonstrate the incompleteness of the Bureau’s records. It is my finding that [a government exhibit] is a demonstration item or display piece and not a firearm and further that the Government has failed to prove that the item is not registered.

“Considerable evidence was received that the Bureau’s officials have for many years recognized the inadequacy and incompleteness of the Bureau’s records. The Court is not required to pass judgment on this, however, because the Government has failed to show that these seven items are firearms.”

In 2005, Congressional Research Service produced a memorandum on “Issues regarding data accuracy, completeness and reliability” of the NFRTR and noted earlier audits that found “significant problems,” including “improperly destroyed records … significant inaccuracies [and that ] employees had not always followed proper procedures.

“One leading firearms law attorney has advised defendants in federal criminal cases to file discovery motions for U.S. government documents that he suggests may cast a reasonable doubt as to whether an NFA firearm is unregistered due to findings in these documents that the NFRTR is not accurate, complete and reliable,” the report notes.

Documenting such unreliability is a “Summary of Errors in the National Firearms Registration and Transfer Record Disclosed in Results of Audits or Reviews by ATF or the Treasury Department Inspector General, 1994 to 1998.”

For those with Dropbox accounts (they’re free), you can download a Zip file for multiple OIG documents including IOI survey data, results and analyses.

“The OIG report is 2007–I think it calls into question (at the very least) every NFA conviction over the last ten years,” Hardy tells AmmoLand Shooting Sports News.  “ATF usually proves failure to register by producing an affidavit from the NFRTR custodian of records, attesting that they have searched the NFRTR and found no registration. It’d be hearsay (the person isn’t appearing to testify, just sending an affidavit) but there are hearsay exceptions for public records that allow this — provided there is no reason they believe the records are unreliable. Oops.”

UPDATE: And yes, it does make it fair to wonder what kind of potentially lethal and/or life-destroying legal terror gun owners would be subjected to if the government ever had total registration, when they can’t even manage a relatively small sub-group of records.

About David Codrea:

David Codrea is the winner of multiple journalist awards for investigating / defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament.

In addition to being a field editor/columnist at GUNS Magazine and associate editor for Oath Keepers, he blogs at “The War on Guns: Notes from the Resistance,” and posts on Twitter: @dcodrea and Facebook.