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Gilbert Equipment Co., Inc. v. Higgins, as mirrored on 3/4/2010

   Cite as Gilbert Equipment Co., Inc. v. Higgins, 709 F.Supp. 1071
(S.D.Ala. 1989).   This case was affirmed without any opinion, at
894 F.2d 412 (11th Cir 1990). 

                      GILBERT EQUIPMENT COMPANY,
                           INC., Plaintiff,

                                 v.

  Stephen E. HIGGINS, Director, Bureau of Alcohol, Tobacco, and   
       Firearms, U.S. Department of the Treasury, Defendant.

                      Civ.  A. No. 88-0242-P.

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

                        March 7, 1989.


Stephen Halbrook, Fairfax, Va., Alex F. Lankford, III, Hand,
Arendall, Bedsole, Greaves & Johnston, Blane Crutchfield, Mobile,
Ala., for plaintiff.

Andrea Newmark, Dept. of Justice, Sandra Schraibman, Washington,
D.C., Eugene Seidel, Asst.  U.S. Atty., Mobile, Ala., for
defendant.

ORDER ADOPTING THE RECOMMENDATION OF THE MAGISTRATE

     PITTMAN, Senior District Judge.

     After due and proper consideration of all portions of this
file deemed relevant to the issues raised, and a de novo
determination of those portions of the recommendation to which
objection is made, the recommendation of the magistrate made under
28 U.S. C. section 636(b)(1)(B) is ADOPTED as the opinion of this
court.

     An analysis considering the plaintiff's objections and the
reasons for this court adopting the magistrate's recommendation are
set forth herein.

ANALYSIS:

      1. Gilbert argues that the magistrate improperly
bootstraps standards under "arbitrary-capricious" review onto the
mandamus count.  Gilbert bases this argument on the magistrate's
statement that "inasmuch as this court has already decided that the
agency's decision that the USAS-12 is not particularly suitable or
readily adaptable to sporting purposes is not arbitrary and
capricious, the magistrate certainly cannot find that there was a
clear duty on the part of the defendant to grant Gilbert a permit
to import the firearm."  According to plaintiff, a mandamus claim
is irrelevant to whether an APA claim survives a deferential
"rational-relation" test, and the magistrate erred in equating the
two.  Gilbert's contention is without merit.  Mandamus is an
extraordinary writ which may not properly issue unless three
elements co-exist: (1) a clear right to the relief sought; (2) a
clear duty on the part of the defendant to do the act in question,
and (3) no other adequate remedy available.  District Lodge No.
166, International Association of Machinist and Aerospace Workers
v. TWA Services, Inc., 731 F.2d 711, 717 (11th Cir.1984).

      18 U.S.C. section 925(d)(3) does not grant Gilbert a
clear right to import arms into this country.  In fact, section
925(d)(3) allows for the importation of firearms only after it has
first been determined that the weapon is particularly suitable or
readily adaptable to a sporting purpose.  In the case sub judice,
the bureau concluded that due to the weight, size, bulk, designed
magazine capacity, configuration, and other factors, the USAS-12 is
not particularly suitable for or readily adaptable to a sporting
purpose.  This decision was reviewed by the magistrate under the
arbitrary and capricious standard, and was affirmed.  Although the
magistrate did not specifically so state, the decision and
affirmation in fact establishes that the plaintiff had no clear
right to import firearms, and that bureau had no duty to issue the
permit.  With these two elements lacking, a writ of mandamus is not
proper.

      2. Plaintiff argues that the magistrate applied the
"rational basis" test to the contrary to law portion of Count Two
when the "rational basis" test is only appropriate for a claim of
arbitrariness and capriciousness.  While the magistrate's rec-
ommendation is devoid of any discussion of the contrary to law
standard, a review of 18 U.S.C. section 925(d)(3) and its
legislative history, reveals that,the bureau's action is in
accordance with it. section 925, as initially enacted, was designed
to keep firearms out of the hands of those not legally entitled to
possess them (Magistrate's Recommendation (hereafter MR) p. 6).  An
amendment in 1986 sought to liberalize importation by providing
that the Secretary [of the Treasury] shall, as opposed to may,
authorize the importation of firearms generally recognized as
particularly suitable for or readily adaptable to sporting purposes
(MR p. 10).  In addition, the importer's burden of establishing
this fact to the Secretary was eliminated.  As the magistrate notes
however, the Secretary retains the obligation to determine whether
specific firearms satisfy this test (MR p. 10).  The bureau denied
Gilbert's permit request due to the firearm's weight, size, bulk,
designed magazine capacity, configuration, and other facts.  In
light of the fact that section 925(d)(3) provides the Secretary
with little guidance in making this determination, there are no
facts to indicate that these were not proper factors for the bureau
to consider in reaching its decision.  Accordingly, it cannot be
said that the bureau's decision was contrary to law.

      3. Gilbert argues that by disregarding the statutory
"generally recognized" component, the agency applied the wrong
legal standard in making its decision, and this cannot be corrected
by the court.  Gilbert bases its argument on that portion of the
bureau's decision that reads "the USAS-12 semiautomatic shotgun is
not particularly suitable for or readily adaptable for sporting
purposes." (Admin.  Rec. p. 22).  Gilbert also notes that the
court may not supply a reasoned basis for any agency's action which
the agency has not given.  While this is true, the Supreme Court in
Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d
106 (1973), held that if the agency fails to explain its actions so
that effective judicial review is frustrated, the reviewing court
must either (1)  obtain from the agency, through affidavits or
testimony, such additional explanation of the reasons for the
agency decision as may prove necessary, or (2) remand to the agency
for further amplification.  Here, the agency provided the
magistrate with additional explanation of the reasons for its
decision through the declarations of Edward Owen, Jr. and William
Drake (MR p. 15, n. 13).  The declaration of Mr. Owen included an
in-depth discussion of the agency's position on the "generally
recognized" component.  According to Mr. Drake, the bureau takes
the position that the "generally recognized" component requires
both that the firearm itself or the "type" of firearm to which the
subject firearm is being compared, has attained general recognition
as being particularly suitable for or readily adaptable to sporting
purpose, and that a particular use of a firearm has attained
general recognition as having a sporting purpose," or that an event
has attained general recognition as being a sport" before those
uses and/or events can be "sporting purposes" or "sports" under
section 925(d)(3) (Drake declar. p. 3).  Thus, contrary to
Gilbert's assertion, the "generally recognized" component was
indeed utilized by the bureau in reaching its decision.  The
magistrate's recommendation also includes a discussion on the
bureau's position regarding the "generally recognized" component.

      4.  Gilbert argues that the magistrate gave deference to
the agency's opinion of contested questions of law, whereas the
deference rule only applies to contested questions of fact within
the special expertise of the agency.  Gilbert asserts that the
issues of whether the USAS-12 is sporting and whether formal target
competitions are sports, are legal questions, thus the agency's
opinion of these issues was not entitled to deference.  Whether
these questions are deemed legal, factual or mixed questions of
law, the determination of what is a sporting gun and what
constitutes a sport clearly involves construction of section
925(d)(3).  Generally, the construction of a statute by those
charged with its execution should be followed unless there are
compelling indications that it is wrong.  Florida Gas Transmission
Co. v. FERC, 741 F.2d 1307, 1309 (11th Cir.1984). If the rule was
otherwise, target shooting could be deemed a sport by some courts,
yet not recognized as such by others.  As there is nothing in the
record to indicate that the bureau's construction is wrong it is
entitled to deference from this court.

      5. Gilbert contends that as a matter of law, no rational
basis exists in the administrative record for the agency's deci-
sion.  The bureau's two denial letters were indeed short and curt
as noted by the magistrate; however, the bureau provided the court
with further elucidation of its reasons for denying Gilbert's
application for a permit.  The magistrate correctly determined that
those reasons provide a rational basis for the agency's decision. 
The bureau determined that the USAS-12 weighed 12.4 pounds
unloaded, and this weight makes the gun extremely awkward to carry
for extended periods, as used in hunting, and cumbersome to lift
repeatedly to fire at multiple small moving targets, as used in
skeet and trap shooting (Owen declar. p. 13).  The bureau also
determined that the USAS-12 contains detachable magazines which
permit more rapid reloading.  A large magazine capacity and rapid
reloading are military features, according to the bureau.  The
bureau also opined that the overall appearance of the weapon was
radically different from traditional sporting shotguns, and
strikingly similar to shotguns designed specifically for or
modified for combat/law enforcement/anti-personnel use (Owen
declar. p. 14).  Further, the bureau determined that the activities
that the USAS-12 was designed for, various police combat
competitions, have not attained "general recognition" as shotgun
sports.  These reasons provide a rational basis for the bureau's
decision.  The magistrate correctly noted that it is of no moment
that the administrative record might also support the opposite
conclusion, as the court needs only determine that a rational basis
exists for the agency's decision.

     6.  Gilbert argues that the magistrate's decision is based on
the bureau's post hoc litigation rationalizations, and has no basis
in the administrative record.

      7. Gilbert also contends that the post hoc litigation
affidavits relied on by the magistrate should not have been con-
sidered according to the rules set forth in Citizens to Preserve
Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed. 2d 136
(1971) and Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d
106 (1973).  The Supreme Court in Overton Park and Camp stated that
the focal point of an administrative review is the administrative
record already in existence, not some new evidence made initially
in the reviewing court.  Overton Park 401 U.S. at 420, 91 S.Ct. at
825; Camp 411 U.S. at 142, 93 S.Ct. at 1244.  Where the court is
faced with a bare record that does not disclose the factors that
were considered or the Secretary's construction of the evidence, it
may be necessary for the district court to require some explanation
in order to determine if the Secretary acted within the scope of
his authority and if the Secretary's action was justifiable under
the applicable standard.  Overton Park 401 U.S. at 420, 91 S.Ct. at
825.  It is clear from the magistrate's recommendation that he
relied heavily on materials which were not a part of the
administrative record at the time the bureau rendered its decision.
A review of the record shows that it was necessary for the
magistrate to view additional materials in order to conduct a
meaningful review of the agency's action.  The two denial letters
simply failed to discuss in detail the reasons advanced as the
basis for the bureau's decisions.  The declarations of Mr. Owen and
Mr. Drake [Chief of the Firearms Technology Branch and Deputy
Director, Bureau of Alcohol, Tobacco and Firearms, respectively] do
not advance new and different reasons for the bureau's actions but
merely provide the court with a more detailed explanation of the
bureau's action.  The magistrate was thus correct in considering
the declarations of Mr. Owen and Mr. Drake.

     8. Gilbert argues that no rational basis exists for denying
sporting uses on the basis of a pistol grip, box magazine, and
marketing, the only reasons cited by the magistrate.  Plaintiff is
totally incorrect in its allegations that the pistol grip, box
magazine and marketing were the only reasons cited by the
magistrate for the denial of the sporting use of USAS-12.  While
these were no doubt pivotal reasons for the denial, the
magistrate's recommendation also included a discussion of the gun's
weight and drum magazine, and the fact that the bureau was wholly
unimpressed with the evidence that Gilbert submitted with its
initial application and reconsideration letter, The magistrate
found that a rational relationship existed between these facts and
the decision made by the bureau.  As discussed in objection # 5,
the magistrate's finding is supported by the record.

      9. Gilbert argues that no rational basis exists for
holding that organized competitive target competitions, using
bulls-eye or animal-like targets and shooting ballshot or slugs, is
some kind of "police combat" game and is not a "sport." section
925(d)(3) provides absolutely no guidance in determining which
activities constitute a "sport." The determination of a weapon's
suitability for sporting "rest[s] directly with the Secretary of
the Treasury." 114 Cong.Rec. 27465, col. 2 (Sept. 18, 1968)
(statement of Sen. Murphy).  The Secretary has delegated his
authority to make determinations concerning sporting purposes to
the Bureau of Alcohol, Tobacco and Firearms. 27 C.R.F. Part 17B. 
Great deference is to be accorded the interpretation of section
925(d)(3) by the agency charged with its administration.  Udall v.
Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1964);
American Mutual Liability Ins.  Co. v. Smith, 766 F.2d 1513, 1519
(11th Cir.1985).

      The bureau determined that bullseye or animal-like
targets and shooting ball-shot or slugs are of a kind of "police
combat" game and is not a "sport." In 1982, the bureau took the
position that police combat" games did in fact constitute a sport;
however, in 1984, the bureau changed its position on this issue. 
According to the bureau, "police combat" competitions have only
recently generated interest outside the military/law enforcement
area, and had not by 1984-and still have not gained general
recognition as sports.  The bureau states that it simply misapplied
the sporting test" in 1982 [see Owen and Drake declar.]. The court
cannot say that this was not a rational basis for the bureau's
decision that "police combat games" were not a sport.

      10.  Gilbert argues that the magistrate relied on
allegations of which there are material questions of fact in con-
troversy, which is prohibited in a summary judgment motion. 
Specifically, Gilbert contends that the questions of whether a 12-
pound shotgun is too heavy for hunting and competition, or whether
the game in question has sufficient numbers of participants to be
"sports," etc. are material issues of fact which are in dispute. 
In Bank of Commerce of Laredo v. City National Bank of Laredo, 484
F.2d 284, 289 (5th Cir.1973). cert. denied 416 U.S. 905, 94 S.Ct.
1609, 40 L.Ed.2d 109 (1974), the Fifth Circuit stated that "when a
plaintiff who has no right to a trial de novo brings an action to
review an administrative record which is before the reviewing
court, the case is ripe for summary disposition, for whether the
order is supported by sufficient evidence, under the applicable
statutory standard, or is otherwise legally assailable, involve
matters of law.  The appropriate legal standard for conducting such
review is that established by the legislation authorizing the
agency action and the appurtenant provisions of the Administrative
Procedure Act." Thus, contrary to the plaintiff's contention, the
court's role here is not to resolve contested fact questions which
may exist in the underlying administrative 'record, but rather the
court must determine the legal question of whether the agency's
action was arbitrary and capricious.

      11.  Gilbert argues that a deference rule is inconsistent
with the intent of the Firearms Owners' Protection Act (FOPA) of
1986.  There is nothing in the Act or its legislative history to
support plaintiff's allegation.  In fact, the plain language of the
statute places the task of administering the statute on the
Secretary of the Treasury [who has delegated this authority to the
bureau] not the courts.  This makes sense in view of the fact that
the bureau is in a far better position to determine whether an
activity is a sport, and whether a firearm is a sporting firearm. 
While the courts generally accord great deference to an
interpretation of a statute by the agency charged with
administering, it, the agency's decisions are not merely rubber
stamped; instead they are subjected to a searching and careful
review by the courts.  Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct.
792, 801, 13 L.Ed.2d 616 (1964), reh'g denied, 380 U.S. 989, 85
S.Ct. 1325, 14 L.Ed.2d 283 (1965); Citizens to Preserve Overton
Park, 401 U.S. at 416, 91 S.Ct. at 823.  In the end though, the
court's review is limited to whether a rational basis exists for
the agency's action.

     12.  Gilbert argues that the magistrate misapplied
the deference standard by rejecting the administrative inter-
pretation of 1968-1986, and applying an admittedly "subjective" and
vague standard concocted for this litigation.  It should first be
noted that in one of  the cases relied upon by plaintiff, National
Distributing Co., Inc. v. U.S. Treasury Dept., 626 F.2d 997, 1014
(D.C.Cir.1980), the court criticized the agency's change in policy
not because the agency saw fit to change its interpretation of a
statute, but because the agency had denied any shift in its policy,
and had refused to issue an explanation for the change.  In this
case, the bureau unequivocally set forth the reasons for its change
in position.  The bureau acknowledges that prior to 1986, the
agency relied upon caliber, gauge and safety features as being
indicative of sporting use.  The bureau maintains that even then
the firearm still bad to be evaluated as a whole to determine
whether it was particu-
larly suitable for a sporting purpose.  The bureau contends that
from 1968 to approximately 1980, the vast majority of new shotguns
have been traditional sporting shotguns, and that not until this
decade, in response to a recently growing interest in paramilitary
equipment, has shotguns developed for law enforcement been sought
to be imported as sporting shotguns.  Thus, prior to 1980, the
bureau contends that it was not necessary for them to establish a
list of factors for the importation of these allegedly "sporting"
shotguns (Owen declar. p. 21).  As noted by the magistrate, these
factors (weight, size, bulk, designed magazine capacity,
configuration, etc.) are characteristic of all firearms thus are
logical characteristics for the bureau to consider in determining
whether a particular firearm is particularly suitable for or
readily adaptable to sporting purposes.

      13.  Gilbert argues that even if deference to the
agency's administrative practice as the proper interpretation of
law is proper, the magistrate ignored the administrative practice
followed in 1968-1986 and instead deferred to litigation arguments,
The reason for the agency's policy shift has already been
discussed.  It has also already been determined that the dec-
larations of Mr. Drake and Mr. Owen were properly considered by the
magistrate. The bureau did not invent new rationales for its denial
of importation of the USAS-12 but simply expounded on the reasons
originally given.  The declarations of Drake and Owen speak to the
weight, size, bulk, configuration of the USAS-12.  These were all
reasons given for the initial denial of importation of the USAS-12.
It was not the magistrate's role, and it is not this court's role,
to determine that the bureau's prior practice was the better posi-
tion.  The court need only be satisfied that the bureau's policy
change, and denial, were not the result of arbitrary and capricious
action.

     14. Gilbert argues that statutory interpretation is for the
judiciary, and the magistrate erred in deferring to the agency on
questions of law.  While it is true that the magistrate deferred to
the agency's interpretation of section 925(d)(3), the plaintiff
fails to cite any instance in which the magistrate deferred to the
agency on purely questions of law.  There is no doubt that the
courts are the final authorities on issues of statutory
construction, yet it is a long established principle that the court
will adhere to the construction of a statute by those charged with
its execution, unless there are compelling indications that it is
wrong.  Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13
L.Ed.2d 616 (1964).  There are no indications that the bureau's
construction is erroneous.

     15.  Gilbert contends that the magistrate ignores accuracy,
safety, and other sporting factors cited in the statute by ATF n
the years 1968-1986, and by sportsmen, and instead relies on
meaningless factors invented for this litigation.  The magistrate
found that the factors relied upon by the bureau, namely, weight,
size, bulk, designed magazine capacity and configuration, for the
denial of importation of the USAS-12 had not previously been cited
as factors determinative of the sporting test.  The magistrate
concluded, however, that because these factors are characteristic
of all firearms, they are logical characteristics for the bureau to
consider.  The bureau has indicated that this switch in factors has
been necessitated by the growing number of non-conventional
shotguns sought to be imported as "sporting" firearms.  The court
cannot say that this was not a rational basis for the bureau's
decision.

      16.  Gilbert argues that the magistrate defers to the
opinion of one bureaucrat, Mr. Owen, without any examination of his
credentials or those of Gilbert's experts.  From a review of the
record, it is clear that the magistrate relied heavily on Mr.
Owen's declaration in an effort to discern further elucidation for
the agency's action.  The plaintiff points the court to no facts
which would tend to show that Mr. Owen is unqualified to serve the
bureau, and his opinion is entitled to no weight.  Mr. Owen's
declaration shows that he has extensive experience in the area of
firearms.  The magistrate was thus correct in relying on the
declaration of Mr. Owen to discern further elucidation for the
agency's action.

      17.  Gilbert argues that numerous post hoc litigation
rationalizations, which the magistrate relies on as if they are
parts of the administrative record, are clearly refuted by the
administrative record.  Gilbert contends that the videotape,
submitted with its application, shows that the USAS-12 has less
muzzle rise than standard sporting shotguns, although the bureau
(and later the magistrate) state that the tape did not compare
USAS-12 with conventional sporting shotguns.  The bureau did not
deny that the USAS-12 has less muzzle, but criticizes the tape
because it failed to compare the firearm's weight, bulk, size,
designed magazine capacity, and configuration with conventional
firearms.

     The plaintiff also argues that the bureau incorrectly stated
that the survey of state game commissions was directed to the le-
gality of the use of the USAS-12 for hunting rather than to its
suitability for sporting purposes.  The question posed to state
game commissions was "would the USAS-12 be particularly suitable
for or readily adaptable to hunting under the game regulations of
your state?" Some of the comments received in response to this
question clearly indicate that at least some of those answering the
question thought it was directed to the legality as opposed to the
sporting purposes of the firearm.  One respondent in particular
stated that the USAS-12 would be legal for small and large game-but
not particularly suitable (A.R. 113, 123, 133).

     Plaintiff argues further that the bureau's statement that
Gilbert's experts, Crossman and Sears, did not address the salient
physical features of the firearm which served the basis for the
agency's decision, is incorrect.  According to Gilbert, these
experts explained the clear sporting advantages of the box magazine
and the reduced kick and muzzle rise due to the weight, pistol
grip, and straight line stock.  The bureau states that the physical
features that Gilbert's experts addressed were not features that
render a shotgun particularly suitable for sporting purposes.  The
bureau opined that the low recoil effect and muzzle rise, which
Gilbert's experts emphasized, was of little value to the "sporting"
determination, since it is offset by the weight and bulk of the
USAS-12, which is more important to sportsmen.  The bureau also
noted that Gilbert's expert, Mr. Crossman, never stated that the
USAS-12 is "of a type" of shotgun "generally recognized" as
sporting, or that the "sports" for which it may be suited are
"generally recognized" sports.  The bureau's findings are not
clearly refuted by the administrative record.

     18.  Gilbert argues that the magistrate erred in deciding that
the agency's decision was "warranted by the facts" as "borne out by
the administrative record."  Although the magistrate states that
the agency's decision was warranted by the facts as borne out by
the administrative record, it is clear that the declarations of Mr.
Owen and Mr. Drake were also relied upon by the magistrate to
substantiate the agency's decision.  Contrary to the plaintiff's
contention, those declarations were not mere post hoc litigation
rationalizations, but constituted more detailed explanations of
those reasons originally advanced by the agency for its denial.  It
has already been determined that based on the administrative
record, and the declarations of Mr. Owen and Mr. Drake, the
agency's decision was rational, and borne out by the complete
record.

      19.  Gilbert contends that the magistrate's decision
would delete the "readily adaptable" standard from section
925(d)(3).  Gilbert argues that the magistrate dwelled on the
particularly suitable component of section 925(d)(3), and
essentially ignored the alternative "readily adaptable" standard. 
Although the magistrate's recommendation lacks an in-depth
discussion of the "readily adaptable" standard, a review of the
record shows that the bureau did in fact consider the "readily
adaptable" standard in reaching its decision to deny importation. 
The bureau has consistently stated that the USAS-12 is a semi-
automatic version of a military type assault shotgun.  Mr. Owen
stated that the Benelli Super 90 and the Benelli VM, which Gilbert
compares to the USAS-12, are traditional sporting shotguns adapted
for military/law enforcement use by adding over-sized magazines,
non-glare finished and synthetic stocks and forearms.  According to
Mr. Owen, the USAS-12 was designed as a military assault weapon and
has never had the basic features of a traditional sporting shotgun
(Owen declar. p. 19).  The bureau cites the separate combat style
pistol grip located on the bottom of the receiver forward of the
buttstock, the barrel to buttstock configuration, and the general
shape and overall appearance of the firearm that makes it radically
different from traditional sporting shotguns and not readily
adaptable to sporting purposes (Owen declar. p. 15).  Contrary to
Gilbert's contention, the "readily adaptable" standard was indeed
utilized by the bureau in reaching its decision.

      20.  Gilbert argues that in recommending dismissal of the
due process claim, the magistrate ignored the fact that competitors
are allowed to import shotguns with features similar to the USAS-
12, but Gilbert is held to a different standard.  Gilbert is in
essence arguing that the bureau has applied a facially neutral
statute in an unequal manner.  As was noted by the magistrate, in
order to prevail on this claim, Gilbert must prove that the bureau
intentionally discriminated against them. E & T Realty v.
Strickland, 830 F.2d 1107, 1112 (11th Cir.1987), cert. denied,    
-U.S.-, 108 S.Ct. 1225, 99 L.Ed.2d 425 (1988).  There are no facts
in this case to support a claim of purposeful discrimination.  The
bureau acknowledges that SPAS-12 and Benelli Super 90 shotguns are
allowed to be imported, although they have features similar to the
USAS-12 and are marketed to both sportsmen and law enforcement. 
The bureau notes that while these guns have some military features,
they retain the basic features of traditional sporting shotguns. 
The bureau also states that the USAS-12 is not the only shotgun
denied an importation permit.  The Striker-12 was denied
classification as a sporting shotgun, and the SPAS-12, which the
bureau allowed to be imported on the basis of its suitability for
use in police combat competitions back in 1982, will be subjected
to the "revised" sporting test.

      Gilbert argues that liberty and property interests exist
in the freedom of a licensed importer to import and sell com-
modities, and be subject to the same standards as competitors.    
 As noted above, there is no indication that Gilbert is being
subjected to standards which are different from those other
importers are subjected to. Further, in order to have a protectable
property interest, Gilbert must demonstrate that it has a
legitimate claim of entitlement to it.  The magistrate was correct
in concluding that any right to import firearms is activated only
after the firearm sought to be imported is shown to be particularly
suitable or readily adaptable to sporting purposes.  It has been
determined that the USAS-12 does not meet this criteria.

      21.  Gilbert's final argument is that the magistrate
ignores the fact that before arms may be "kept" under the second
amendment, arms must be produced and acquired.  The magistrate
found that the second amendment guarantees the right to keep and
bear arms but does not give Gilbert a right to import arms.  Gil-
bert argues that the magistrate is incorrect, yet fails to cite any
authority in support of its position.  The magistrate relied on
United States v. Swinton, 521 F.2d 1255 (10th Cir.1975), cert.
denied, 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324 (1976) in
reaching his decision.  Swinton is a criminal case wherein the
defendant was convicted of engaging, without a license, in the
business of dealing in firearms.  The Court held, in part, that
there is no absolute constitutional right of an individual to pos-
sess a firearm.  In United States v. King, 532 F.2d 505 (6th
Cir.1976), cert denied, 429 U.S. 960, 97 S.Ct. 384, 50 L.Ed.2d 327
(1976), the defendant was also convicted of dealing in firearms
without a license.  In upholding his conviction, the Fifth Circuit
noted that the defendant was convicted not of bearing arms, but of
selling them without a license.  Id. at 510.  Similarly, in the
case sub judice, Gilbert is not being denied its right to bear
arms, but is simply being prevented from importing into this
country arms that are not particularly suitable or readily
adaptable to a sporting purpose.

     Accordingly, the magistrate's recommendation is ADOPTED as the
opinion of this court.

                              JUDGMENT
     It is ORDERED, ADJUDGED and DECREED that defendants' motion
for summary judgment is GRANTED.  Plaintiff's cross-motion for
summary judgment is DENIED, costs to be taxed to plaintiff.

RECOMMENDATION OF MAGISTRATE

     WILLIAM E. CASSADY, United States Magistrate.

     This case is before the Magistrate for report and
recommendation pursuant to 28 U.S.C. section 636(b)(1)(B) on cross-
motions for summary judgment.  Upon consideration of the
administrative record and all pertinent materials contained in this
file, the Magistrate makes the following recommendation.

                              FACTS

     In 1986, Gilbert Equipment Company, a licensed importer of
firearms, applied to the Bureau of Alcohol, Tobacco and Firearms
(hereinafter "ATF") for a permit to import the USAS-12 shotgun.
(See A.R. 2).  The USAS-12 is a highly advanced magazine-fed
semiautomatic 12-gauge shotgun manufactured by Daewoo Precision
Industries in Korea. (para. 5 of Complaint).  Soon after applying
for the permit, Gilbert submitted information to the Bureau in an
attempt to demonstrate that the USAS-12 "is generally recognized as
particularly suitable for or readily adaptable to sporting
purposes" and is thus importable under 18 U.S.C. Section 925(d)(3).
(9 6 of Complaint; see A.R. 2-19).  After several meetings between
the parties and testing and evaluation by the Bureau, ATF, by
letter dated December 16, 1986 from the office of William T.  
Drake, ATF Deputy Director, denied permission to Gilbert to import
the USAS-12 inasmuch as "due to the weight, size, bulk, designed
magazine capacity, configuration and other factors, the USAS-12
semiautomatic shotgun is not particularly suitable for or readily
adaptable to sporting purposes." (A.R. 22).  On February 19, 1988,
Gilbert sought ATF's permission to import five hundred (500) USAS-
12 shotguns and accompanied its application with extensive
memoranda, exhibits, and a videotape in support of a sporting use
determination (para. 14 of Complaint).  By letter dated March 1,
1988, William E. Earle, Chief of the Firearms and Explosives
Division, denied the application stating that ATF's position
remained unchanged (A.R. 197-98).  On March 24, 1988, plaintiff
filed in this Court a complaint seeking: (1) mandamus relief; (2)
a determination by this Court that defendant's actions were
arbitrary, capricious, and an abuse of discretion; (3) a
determination by the Court that defendant's conclusions were
unwarranted by the facts and were not based on any facts; (4) a
determination by this Court that the defendant violated its rights
to due process of law and equal protection of the laws, rights
which are guaranteed by the Fifth Amendment; and (5) a
determination by this Court that defendant violated plaintiff's
Second Amendment right to keep and bear arms. [footnote 1] The
parties' summary judgment memoranda have addressed all of the forms
of relief requested and thus, a determination by this Court on the
cross motions will make unnecessary a trial of this cause.

                          STATUTORY HISTORY

     In 1968, Congress enacted the Gun Control Act which was
designed to keep firearms out of the hands of those not legally
entitled to possess them because of age, criminal background, or
incompetency, and to assist law enforcement authorities in the
states and their subdivisions in combating the ever increasing
prevalence of crime in
the United States. 1968 U.S.Code Cong. & Admin.News 2112, 2113-
2114. [footnote 2] In 1968, Section 925(d) of the Act provided in
pertinent part as follows:

          The Secretary may authorize a firearm or ammunition to be
     imported or brought into the United States or any possession
     thereof if the person importing or bringing in the firearm or
     ammunition establishes to the satisfaction of the Secretary
     that the firearm or ammunition ...

     (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, excluding surplus military firearms.

18 U.S.C. section 925(d)(3) (emphasis added).  [footnote 3]

     The clear intent of Section 925(d)(3) was to "curb the flow of
surplus military and other firearms being brought into the United
States which are not particularly suitable for target shooting or
hunting." 1968 U.S.Code Cong. & Admin.News 2112, 2167. [footnote 4]
As Senator William Dodd, sponsor of the legislation, emphasized,

     Title IV prohibits importation of arms which the Secretary
     determines are not suitable for research, sport, or as museum
     pieces ...
     The entire intent of the importation section is to get at
     those kinds of weapons that are used by criminals and that
     have no sporting purpose.

114 Cong.Rec. S 5556 Col. 3, S 5582 Col. 1, S 5585 Col. 2 (May 14,
1968) (statement of Senator Dodd). [footnote 5] The determination
of a weapon's suitability for sporting purposes was entrusted to
the Secretary of the Treasury. 114 Cong.Rec. 27465, Col. 2 (Sept.
18, 1968) (statement of Sen. Murphy).  As noted in one of the
Senate Reports,

     The difficulty of defining weapons characteristics to meet
     this target [of eliminating importation of weapons used in
     crime], without discriminating against sporting quality
     firearms, was a major reason why the Secretary of the Treasury
     has been given fairly broad discretion in defining and
     administering the import prohibition ...

S.Rep. No. 1501, 90th Cong.2d Sess. 38 (Sept. 6, 1968) . [footnote
6]

     To assist the Secretary in exercising his discretion, Congress
"recommended that the Secretary establish a council that would y
provide guidance and assistance to him in determining those
firearms which meet the criteria for importation into the United
States...."    S. Rep. No. 1501, 90th Cong. 2d Sess. 38 (Sept. 6,
1968).  Immediately following enactment of the Gun Control Act, the
Secretary of the Treasury appointed a Firearms Evaluation Panel to
establish guidelines for implementation of the "sporting purposes"
test of Section 925(d)(3), said panel being composed of rep-
resentatives from the military, law enforcement, and firearms
industries. [footnote 7]  While the panel did not propose specific
criteria for evaluating shotguns [footnote 8] the apparent general
criteria relied upon by the advisory panel and ATF from 1968
through 1986 for determining what is "generally recognized" as a
sporting firearm is as follows:

         The Director may compile an Importation List of firearms
     and ammunition which he determines to be generally recognized
     as particularly suitable for or readily adaptable to sporting
     purposes....  No firearm shall be placed on the Importation
     List unless it is found that:

          (1) the caliber or gauge of the firearm is suitable for
     use in a recognized shooting sport,

          (2) the type of firearm is generally recognized as
     particularly suitable or readily adaptable to such use, and

          (3) the use -of the firearm in a recognized shooting
     sport will not endanger the person using it due to
     deterioration through such use or because of workmanship,
     materials or design.

Specifically, with regard to shotguns, the two factors panel
members were concerned with were the lack of easy convertability to
full automatic and the barrel and overall length of the weapon (18
inch barrel length and 26 inch overall length for shotguns).

     In 1986, Section 925(d) of the Gun Control Act was amended by
the Firearms Owner's Protection Act to read in pertinent part as
follows:

          The Secretary shall authorize a firearm or ammunition to
     be imported or brought into the United States or any
     possession thereof if the firearm or ammunition ...

          (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, excluding surplus military firearms, except in any
     case where the Secretary has not authorized the importation of
     the firearm pursuant to this paragraph, it shall be unlawful
     to import any frame, receiver, or barrel of such firearm which
     would be prohibited if assembled.

18 U.S.C. section 925(d)(3) (emphasis added).

     The amendments to the Statute provide that the Secretary shall
(instead of "may") authorize the importation of firearms generally
recognized as particularly suitable for or readily adaptable to
sporting purposes.  Additionally, the amendments whittled away at
the Secretary's discretion by eliminating the requirement that the
importer of firearms establish to the satisfaction of the Secretary
that the particular firearm sought to be imported is generally
recognized as particularly suitable for or readily adaptable to
sporting purposes.  Regardless of the changes made, the firearm
must meet the sporting purposes test and it remains the Secretary's
obligation to determine whether specific firearms satisfy this
test.  The Senate Report on the 1986 amendments S.Rep. No. 583,
98th Cong. 1st Sess, August 8, 1984, stated that "[i]t is
anticipated that in the vast majority of cases, [the substitution
of "shall" for "may" in the authorization section] will not result
in any change in current practice." However, opponents of the
amendments viewed the changes as liberalizing and opening up of the
importation of firearms into the United States "by mandating the
Secretary to authorize importation of a firearm if there is a
sporting purpose and eliminating the requirement that the importer
has the, burden of satisfying the Secretary of the sporting
purpose." Firearms Owners' Protection Act, 100 Stat. 1340 (1986)
(amending section 925 of the Gun Control Act of 1968, 18 U.S.C.
sections 921-929 (1986)).

                          DISCUSSION

I.  WAS ATF'S DETERMINATION THAT THE USAS-12 SHOTGUN IS NOT A
"SPORTING" WEAPON ARBITRARY OR CAPRICIOUS?

     A.  The Scope and Standard of Review.   As the Magistrate has
noted previously, plaintiff has alleged that ATF's determination
that the USAS-12 is not a "sporting" weapon was "arbitrary,
capricious, an abuse of discretion, in excess of statutory
authority, and otherwise not in accordance with law." (Complaint,
para. 20).  Section 706 of the Administrative Procedure Act pro-
vides six separate standards of judicial review of agency actions. 
Specifically for this Court's purposes, Section 706(2)(A) provides
that a reviewing court shall "hold unlawful and set aside agency
action, findings, and conclusions found to be ... arbitrary,
capricious, an abuse of discretion or otherwise not in accordance
with law." 5 U.S.C. section 706(2)(A). [footnote 9] This is the
standard of review this Court will employ to determine whether ATF
properly concluded that the USAS-12 is not a sporting shotgun; a
closer examination of this standard is, therefore, warranted.

     Before a court can reach the determination that an agency's
actions were arbitrary or capricious, said court "must consider
whether the decision was based on a consideration of the relevant
factors and whether there has been a clear error of judgment....
Although this inquiry into the facts is to be searching and
careful, the ultimate standard of review is a narrow one.  The
court is not empowered to substitute its judgment for that of the
agency." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971); Bowman
Transport, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S.
281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974). [footnote 10]
That is, the particular agency must articulate a "rational
connection between the facts found and the choice made." Bowman,
supra, 419 U.S. at 285, 95 S.Ct. at 442 (quoting Burlington Truck
Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 246,
9 L.Ed.2d 207 (1962)). [footnote 11] While the Supreme Court has
stated that it will "not supply a reasoned basis for the agency's
action that the agency itself has not given, SEC v. Chenery Corp.,
332 U.S. 194, 196 [67 S.Ct. 1575, 1577, 91 L.Ed. 19951 (1947)," the
High Court has also indicated that it will "uphold a decision of
less than ideal clarity if the agency's path may reasonably be dis-
cerned.  Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595 [65
S.Ct. 829, 836, 89 L.Ed. 1206] (1945)." Bowman, supra, 419 U.S. at
285-86, 95 S.Ct. at 442.  [footnote 12]

     In applying the arbitrary and capricious standard, the focal
point of review is the administrative record "already in existence,
not some new record made initially in the reviewing court." Camp v.
Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106
(1973).  If the agency fails to explain its actions so that
effective judicial review is frustrated, the reviewing court must
either (1) obtain from the agency, through affidavits or testimony,
such additional explanation of the reasons for the agency decision
as may prove necessary, [footnote 13] or (2) remand to the agency
for further amplification.  Pitts, supra, 411 U.S. at 142-43, 93
S.Ct. at 1244.

     B.  "Sporting Purposes" Test.  The statute establishes that a
"sporting" firearm is a weapon which is generally recognized as
particularly suitable or readily adaptable to sporting purposes. 18
U.S.C. section 925(d)(3).  The Bureau claims that in making a
sporting determination it attempts to determine whether the firearm
is of a type traditionally used in recognized sporting activities
or is as suitable for recognized sporting activities as firearms
traditionally used for such activities. (Drake Dec. para. 7).  ATF
views the "generally recognized" qualification to require both that
the firearm itself or the "type" of firearm to which the subject
firearm is being compared have attained general recognition as
being particularly suitable for or readily adaptable to sporting
purposes, [footnote 14] and that a particular use of a firearm have
attained general recognition as being a "sporting purpose," or that
an event have attained general recognition as being a "sport," be-
fore those uses and/or events can be sporting purposes" or "sports"
under Section 925(d)(3). [footnote 15]

     The interpretation of a statute by the agency charged with
administering it is generally entitled to great deference, Udall v.
Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616, reh'g
denied, 380 U.S. 989, 85 S.Ct. 1325, 14 L.Ed.2d 283 (1965); see
Blue Cross & Blue Shield v. Department of Banking & Finance, 791
F.2d 1501, 1506 (11th Cir.1986) ("We need not find that its [the
agency's] construction is the only reasonable one, or even that it
is the result we would have reached had the question arisen in the
first instance in judicial proceedings."), unless there are com-
pelling indications that said interpretation is wrong.  American
Mut. Liab. Ins. Co. v. Smith, 766 F.2d 1513, 1519 (11th Cir. 1985)
("We will adhere to the 'principle that the construction of a
statute by those charged with its execution should be followed
unless there are compelling indications that it is wrong.'"); see
Florida Gas Transmission Co. v. FERC, 741 F.2d 1307, 1309-10 (11th
Cir.1984) ("The agency's view must be upheld unless it is so
plainly erroneous or so inconsistent with either the regulation or
the statute authorizing the regulation that its decision is
arbitrary, capricious, an abuse of direction or otherwise not in
accordance with law.").

     Furthermore, "[t]he words of statutes ... should be
interpreted where possible in their ordinary, everyday senses,"
Malat v. Riddell, 383 U.S. 569, 571, 86 S.Ct. 1030, 1032, 16
L.Ed.2d 102 (1966); Lane v. United States, 727 F.2d 18, 20 (1st
Cir.) (in a suit involving the Equal Access to Justice Act, the
appellate court stated that "the plain language of the statute
itself must be regarded as conclusive."), cert. denied, 469 U.S.
829, 105 S.Ct. 113, 83 L.Ed.2d 57 (1984).  However, "a court should
go beyond the literal language of a statute if reliance on that
language would defeat the plain purpose of the statute."  Bob Jones
University v. United States, 461 U.S. 574, 586, 103 S.Ct. 2017,
2025, 76 L.Ed.2d 157
(1983); Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571,
102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982) ("[I]n rare cases the
literal application of a statute will produce a result demonstrably
at odds with the intention of its drafters, and those intentions
must be controlling."). Thus, ATF argues that the "generally
recognized" qualification must be read to limit the types of
firearms and sports which would classify a firearm as "sporting"
under Section 925(d)(3).  Additionally, ATF contends that given the
fact that the word "particularly" modifies the word "suitable" a
firearm which might be recognized as "suitable" for use in
traditional sports would not meet the statutory criteria unless it
were recognized as particularly suitable for such use. [footnote
16] Finally, ATF argues that the drafters of the legislation did
not intend for "sports" to include every available type of activity
or competition which might employ a firearm inasmuch as a "sporting
purpose" could be advanced for every firearm sought to be imported.
[footnote 17]

     C.  Application of the "Sporting Purposes" Test By ATF to the
USAS-12.   As this Court has heretofore stated, ATF, after testing
and examining the USAS-12, concluded that due to the weight, size,
bulk, designed magazine capacity, configuration, and other factors,
Gilbert's semiautomatic shotgun is not particularly suitable for or
readily adaptable to sporting purposes; rather, ATF is of the
opinion that the weapon is a semiautomatic version of a selective
fire military type assault shotgun (A.R. 22-23).  The Bureau argues
that the aforementioned factors or characteristics provide a
rational basis for its determination denying Gilbert permission to
import the USAS-12 into the United States.  Since the curt
administrative denial of Gilbert's application to import the
USAS-12 and the mere reaffirmation of that decision in late March,
1988, (A.R. 199), ATF has provided this Court with further
elucidation of its reasons for denying Gilbert's application for a
permit to import the firearm, as follows:

     1.  The weight of the weapon, 12.4 pounds, makes it much
heavier than traditional 12-gauge sporting shotguns [footnote 18]
and thus makes it awkward to carry for extended periods, as is
required in hunting, and cumbersome to lift repeatedly to fire at
multiple small moving targets as used in skeet and trap shooting.

     2.  The width of the USAS-12 with drum magazine (approximately
6 inches) and the depth with box magazine (in excess of 11 inches)
far exceed that of traditional sporting shotguns which do not
exceed three inches in width or four inches in depth. [footnote 19]
The Bureau argues that because of the large size and bulk of the
USAS-12, the firearm is extremely difficult to maneuver quickly
enough to engage in moving targets as is necessary in most types of
hunting, and in skeet and trap shooting.

     3.  The detachable box (12-cartridge capacity) and the drum
magazine (28-cartridge capacity) have larger capacities than those
of traditional repeating sporting shotguns which contain tubular
magazines with a capacity of three to five cartridges.  Ad-
ditionally, detachable magazines permit more rapid reloading than
do tubular magazines.  Finally, the few manually operated 12-gauge
shotguns which incorporate detachable box magazines are supplied
with two (2) cartridge capacity magazines; those 12-gauge
semiautomatic and fully automatic shotguns which employ larger
capacity detachable magazines are specially designed combat weapons
or conventional shotguns modified for law enforcement and military
use. [footnote 20]

     4. The combat style pistol grip (located on the bottom of the
receiver forward of the buttstock), the barrel-to-buttstock con-
figuration, the bayonet lug, and the overall appearance and general
shape of the gun are radically different from traditional sporting
shotguns and strikingly similar to shotguns designed specifically
for or modified for combat and law enforcement use.  Specifically,
the pistol grip facilitates the handling of the weapon when fired
from positions other than the shoulder and also facilitates control
of the weapon with one hand while traditional shotgun sports
generally involve firing from the shoulder.  Additionally, the
bayonet is a distinct military feature which has no sporting
application. [footnote 21]

     In addition to giving further explanation of the specific
reasons for denying to Gilbert a permit to import the USAS-12, ATF
spokesman Edward M. Owen has stated that ATF relied in part on
Gilbert's own marketing and advertising literature, which listed
the various combat uses of the weapon (but listed no recognizable
sporting uses), in determining that the USAS-12 was not a sporting
shotgun.  The Bureau
argues that the representations, concerning the weapon, made by
Gilbert in its advertising literature, together with the physical
characteristics of the firearm, indicate that its determination to
deny the application to import the weapon was rational, based on
relevant factors, and was not a clear error in judgment. [footnote
22]

     Finally, ATF was wholly unimpressed with the evidence Gilbert
submitted with its February 17, 1988 letter requesting re-
consideration of the agency's decision specifically finding: (1)
that the tape demonstrating the firearm's uses did not provide
comparisons of the USAS-12 with conventional sporting shotguns to
demonstrate that it was of a type generally recognized as
particularly suitable for or readily adaptable to the traditional
shotgun sports of hunting and trap or skeet shooting; (2) that
comparisons cannot be made between the USAS-12 and rifles or
handguns because they are distinctly different weapons and thus it
is immaterial that some of the handguns, rifles and "combination"
rifle/shotguns the agency has allowed importation of share one or
more features with the USAS-12 which the agency now finds
objectionable; (3) although the agency has allowed importation of
several military-style 12-gauge shotguns (e.g., the Benelli Scope-
90, the Benelli VM, and the Benelli 212-M1), these shotguns
maintain the basic features of traditional sporting shotguns; (4)
the SPAS-12 is a traditional sporting shotgun adapted for military
and law enforcement use and was approved for importation in 1982
based upon an agency policy (a policy which recognized police
combat competition as a sport) which has been subsequently
reversed; [footnote 23] (5) the survey of state game commissions
was directed to the legality of the use of the USAS-12 for hunting
rather than to its suitability for sporting purposes; and (6) the
evaluations made by Edward B. Crossman and Robert Sears did not
address the salient physical features of the firearm which served
as the basis of ATF's December 11, 1986 determination and neither
stated that the USAS-12 is a shotgun "of a type" generally
recognized as sporting or that the "sports" for which it is
suitable are "generally recognized" sports.

     D.  Decision. It is clear to this Magistrate that the 1986
amendments to Section 925(d)(3) of the Gun Control Act were meant
not only to liberalize importation of firearms but also to ease the
burden on importers by eliminating the requirement that the
importer satisfy the Secretary that the firearm sought to be
imported is particularly suitable or readily adaptable to sporting
purposes.  Nevertheless, there is left the basic and undeniable
requirement that the particular firearm sought to be imported must
be particularly suitable or readily adaptable to sporting purposes.
[footnote 24]

     As this Court has heretofore noted, the Bureau of Alcohol,
Tobacco and Firearms determined that due to the weight, size,
bulk, designed magazine capacity, configuration and other factors,
the USAS-12 semiautomatic shotgun is not particularly suitable for
or readily adaptable to sporting purposes.  Although the factors
relied upon by ATF, to the Court's knowledge, have never been
previously cited by ATF as factors determinative of the sporting
purposes test, they are characteristic of all firearms and thus,
the Magistrate opines that they are logical characteristics for ATF
to consider in determining whether a particular firearm is
particularly suitable for or readily adaptable to sporting pur-
poses.  Given the narrow standard by which this Court must judge
agency decisions, see, e.g., Volpe, supra, 401 U.S. at 416, 91
S.Ct. at 823-24, the undersigned Magistrate cannot determine that
the Bureau's decision to deny permission to Gilbert to import the
USAS-12 is arbitrary and capricious.  The administrative record
supports the agency's determination that the overall appearance and
design of the weapon (especially the detachable box magazine and
the pistol grip) is that of a combat weapon and not a sporting
weapon.  In fact, the USAS-12 was specifically marketed by Gilbert
as a military and law enforcement weapon.  Accordingly, the
Magistrate finds that there was a rational relationship between the
facts and the decision made by the Bureau not to allow the
importation of the USAS-12, and therefore, the Court does not find
the decision to be arbitrary or capricious.  It is of no moment
that the administrative record might also support the opposite
conclusion that the USAS-12 is suitable for use as a sporting
weapon. [footnote 25] This Court need only decide that a rational
basis exists for the agency's decision and having done so, the
Magistrate turns to  Gilbert's remaining arguments.  [footnote 26]

                     II.  MANDAMUS RELIEF.

     In its complaint, plaintiff has also asserted that it is
entitled to mandamus relief.  Mandamus is an extraordinary remedy
which requires the coexistence of the following three elements
before the writ may properly issue: "(1) a clear right in the
plaintiff to the relief sought; (2) a clear duty on the part of the
defendant to do the act in question; and (3) no other adequate
remedy available." Carter v. Seamans, 411 F.2d 767, 773 (5th
Cir.1969), cert. denied, 397 U.S. 941, 90 S.Ct. 953, 25 L.Ed.2d 121
(1970); District Lodge No. 166, International Assn of Machinists &
Aerospace Workers v. TWA Services, Inc., 731 F,2d 711, 717 (11th
Cir.1984), cert. denied, 469 U.S. 1209, 105 S.Ct. 1175, 84 L.Ed.2d
324 (1985).  That is, the writ will issue "only if the act to be
compelled is ministerial and so plainly prescribed as to be free
from doubt." Bass Angler Sportman Soc'y v. United States Steel
Corp., 324 F.Supp. 412, 416 (S.D.Ala.1971), aff'd sub nom. Bass
Anglers Sportsman Soc'y v. Koppers Co., 447 F.2d 1304 (5th
Cir.1971).

     In the instant case, a reading of Section 925(d)(3) clearly
indicates that before ATF must allow the importation of a firearm,
said weapon must be shown to be particularly suitable or readily
adaptable to sporting purposes.  Inasmuch as this Court has already
decided that the agency's decision that the USAS-12 is not
particularly suitable or readily adaptable to sporting purposes is
not arbitrary and capricious, the Magistrate certainly cannot find
that there was a clear duty on the part of the defendant to grant
Gilbert a permit to import the firearm.

                  III.   CONSTITUTIONAL CLAIMS.

     A.  Fifth Amendment.  Gilbert alleges in its complaint that
ATF has applied shifting, unequal standards, or no standards, and
has continued to approve permits to import firearms less suitable
for sporting purposes than the USAS-12 and by doing so, has
violated its right to due process of
law and equal protection of the laws, rights guaranteed by the
Fifth Amendment to the United States Constitution.  To prevail on
this claim, which essentially asserts that ATF unequally applied a
facially neutral statute, Gilbert must prove intentional dis-
crimination.  E & T Realty v. Strickland, 830 F.2d 1107, 1112 (11th
Cir.1987), cert. denied, - U.S. -, 108 S.Ct. 1225, 99 L.Ed.2d 425
(1988).  "Unequal administration of facially neutral legislation
can result from either misapplication (i.e., departure from or
distortion of the law) or selective enforcement (i.e., correct
enforcement in only a fraction of cases).  In either case, a
showing of intentional discrimination is required." Id. at 1113. 
"Even arbitrary administration of a statute, without purposeful
discrimination, does not violate the equal protection clause." Id.
at 1114, citing Jurek v. Estelle, 593 F.2d 672, 685 n. 26 (5th
Cir.1979) (where plaintiff alleges "arbitrary and capricious"
administration of statute, plaintiff still must prove intentional
discrimination), issue vacated without being addressed, 623 F.2d
929, 931 (5th Cir.1980) (en banc), cert. denied, 450 U.S. 1014, 101
S.Ct. 1724, 68 L.Ed.2d 214 (1981).  In the instant case, plaintiff
has simply not proved that ATF intentionally discriminated against
it in the agency's application of Section 925(d).  It would simply
be anomalous for this Court to find on the one hand that ATF's
administration of Section 925(d) of the Gun Control Act was not
arbitrary and capricious only then to find that ATF, in
administering the statute, intentionally discriminated against
Gilbert in violation of the equal protection clause of
the Fifth Amendment.

     Additionally, the Magistrate finds that Gilbert has neither
sufficiently alleged or proven that a liberty or property interest
was deprived by ATF's actions for the purpose of establishing a
procedural due process violation.  The Magistrate has some
difficulty in surmising the exact property or liberty interest
alleged here.  In its complaint, Gilbert argues that ATF deprived
it of its right to import the USAS-12 as a sporting weapon under
Section 925(d)(3) of the Gun Control Act, as amended.  Even if that
Section arguably creates a right in a person to import arms, said
right is activated only after the firearm sought to be imported is
shown to be particularly suitable or readily adaptable to sporting
purposes.  Given this, the Magistrate cannot find that the statute
creates an absolute right to relief sufficient to constitute a
property or liberty interest.  See Thompson v. Dereta, 549 F.Supp.
297, 299 (D. Utah 1982), appeal dismissed, 709 F.2d 1343 (10th
Cir.1983).  [footnote 27]

     B.  Second Amendment.  The Second Amendment to the United
States Constitution guarantees to all Americans the right "to keep
and bear arms" and further provides that this right "shall not be
infringed." U.S. Const. Amend. II.  Plaintiff alleges that the
right to keep and bear arms includes the right to manufacture,
import, sell and purchase firearms and to the extent that 18 U.S.C.
section 925(d)(3) allows ATF not to authorize importation of the
USAS-12 on the ground that it is not a sporting shotgun, said code
section infringes upon the right of the people to keep arms and is
thus unconstitutionally void.  In the context of this case, the
Magistrate is concerned with whether the Second Amendment's right
to keep arms necessarily involves the right to import firearms. 
The plaintiff, of course, desires to bootstrap the right to import
firearms to the right to keep and bear arms.  However, Gilbert has
cited this Court to no authority, and the Court finds none, where
it has been found that the right to keep and bear arms necessarily
involves, or extends to, the right to import arms.  Clearly, if
this Magistrate was to declare 18 U.S.C. section 925(d)(3) consti-
tutionally void, the Court would with one sweep of the pen destroy
over twenty years of effort to keep undesirable firearms from
flooding into the United States. This, the Magistrate will not do. 
Accordingly, this Court finds that the right to keep and bear arms
does not extend to and include the right to import arms and further
finds that 18 U.S.C. section 925(d)(3) does not unconstitutionally
impinge on the right to keep and bear arms. [footnote 28]

                               CONCLUSION

     Considering the foregoing discussion, the Magistrate
recommends that the defendant's motion for summary judgment be
granted and that plaintiff's cross-motion for summary judgment be
denied.

     The attached sheet contains important information regarding
objections to this recommendation.

     DONE this 12th day of January, 1989.

MAGISTRATE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES 
FOLLOWING RECOMMENDATION, AND FINDINGS CONCERNING NEED FOR TRAN-
SCRIPT

1.  Objection. Any party who objects to this recommendation or
anything in it must, within ten days of the date of service of this
document, file specific written objections with the Clerk of this
court.  Failure to do so will bar later attack or review of
anything in the recommendation.  See 28 U.S.C. section
636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88
L.Ed.2d 435 (1985); Nettles v. Wainwright, 677 F.2d 404 (5th
Cir.1982) (en banc).  The procedure for challenging the findings
and recommendations of the Magistrate is set out in more detail in
Local Rule 26(4)(b), which provides that:

     Any party may object to a magistrate's proposed findings,
     recommendations or report made under 28 U.S.C. section
     636(b)(1)(B) within ten (10) days after being served with a
     copy thereof.  The appellant shall file with the Clerk, and
     serve on the magistrate and all parties, written objections
     which shall specifically identify the portions of the proposed
     findings, recommendations or report to which objection is made
     and the basis for such objections.  A judge shall make a de
     novo determination of those portions of the report or
     specified proposed findings or recommendation to which objec-
     tion is made and may accept, reject, or modify in whole or in
     part, the findings or recommendations made by the magistrate. 
     The judge, however, need conduct a new hearing only in his
     discretion or where required by law, and may consider the
     record developed before the magistrate, making his own
     determination on the basis of that record.  The judge may also
     receive further evidence, recall witnesses or recommit the
     matter to the magistrate with instructions.

A Magistrate's recommendation cannot be appealed to a Court of
Appeals; only the District Judge's order or judgment can be
appealed.

2.  Transcript (applicable Where Proceedings Tape Recorded). 
Pursuant to 28 U.S.C. section 1915 and FED.R.CIV.P. 72(b), the
Magistrate finds that the tapes and original records in this case
are adequate for purposes of review.  Any party planning to object
to this recommendation, but unable to pay the fee for a transcript,
is advised that a judicial determination that transcription is
necessary is required before the United States will pay the cost of
the transcript.


                         FOOTNOTES

1. Plaintiff opines that the right to keep and bear arms includes
the right to manufacture, import, sell and purchase arms.

2. The Gun Control Act of 1968, as amended, 18 U.S.C. sections 921-
29, along with the National Firearms Act of 1934, as amended, 26
U.S.C. Chapter 53, regulate the importation of firearms.

3.  The underlined words were deleted in 1986.

4.  However, Section 925(d) of the Act was not meant to interfere
with the bringing in of "currently produced firearms, such as
rifles, shotguns, pistols or revolvers of recognized quality which
are used for hunting and for recreational purposes, or for personal
protection." Id. (emphasis added).

5. Apparently at that time, the thrust of the legislation was to
keep Saturday Night Specials and other cheaply made revolvers out
of the United States.

6. In fact, opponents of the bill contended that
     The proposed restrictions of Title IV would give the Secretary
     of the Treasury unusually broad discretion to decide whether
     a particular type of firearm is generally recognized as
     particularly suitable for, or readily adaptable to, sporting
     purposes....
S.Rep. No. 1097, 90th Cong.2d Sess. 255 (April 29, 1968), reprinted
in 1968 USSCAN at 2306 ("Individual Views of Messrs. Dirksen,
Hruska, Thurmond and Burdict on Title IV.").

7. At the initial meeting of the Firearms Advisory Panel it was
clearly understood that the role of the panel would be advisory
only and that it was the responsibility of ATF to make final
"sporting purposes" determinations. (A.R. 103).

8.  The panel did, however, recommend the adoption of factoring
criteria to evaluate the various types of handguns based upon such
considerations as overall length of the firearm, caliber, safety
features, et cetera, and an evaluation sheet (ATF Form 4590) was
thereafter developed  and used for the purpose of evaluating
handguns pursuant to Section 925(d)(3).  The development of a
specific evaluation sheet for handguns emphasizes the concern of
many in the late 1960's of the proliferation of the cheaply
manufactured Saturday Night Specials.

9.  Section 706 of the Act also provides for de novo review. 5
U.S.C. section 706(2)(F).  However, de novo review is authorized
only in the following circumstances: (1) when the action is adju-
dicatory in nature and the agency factfinding procedures are
inadequate; and (2) when issues that were not before the agency are
raised in a proceeding to enforce nonadjudicatory agency action.
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,
413, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971).  The facts of the
instant case do not fit within one of these two situations and
therefore de novo review is not warranted.

10.  This deferential standard of review presumes the validity of
the agency action. Manasota-88, Inc. v. Thomas, 799 F.2d 687, 691
(11th Cir. 1986).

II.   Put still another way,for a court to affirm an agency's
actions, said court need only determine that the agency had a
rational basis for its decision. Manasota-88, Inc. v. Thomas, 799
F.2d 687, 691 (11th Cir.1986).

12.  The Circuit Court for the District of Columbia has stated that
"[i]t is only where there is no rational nexus between the facts
found and the choice made that a court is authorized to set aside
the agency determination." Certified Color Manufacturers Assn v.
Mathews, 543 F.2d 284, 294 (D.C.Cir.1976). Additionally, the Su-
preme Court has noted that when a purely factual question within
the area of competence of an administrative agency created by
Congress is considered and when "resolution of that question
depends on 'engineering and scientific' consideration," the
relevant agency's technical expertise and experience, is recognized
and its analysis is deferred to "unless it is without substantial
basis in fact." FPC v. Florida Power & Light Co., 404 U.S. 453,
463, 92 S.Ct. 637, 644, 30 L.Ed.2d 600 (1972).

13.  The Bureau has provided this Court with additional explanation
of the reasons for its decision through the declarations of Edward
M. Owen, Jr. and William T. Drake.

14.  Specifically, where classification of a 12 gauge shotgun under
Section 925(d)(3) is involved, ATF looks to see whether the firearm
is the "type" of 12-gauge shotgun which is generally recognized as
suitable for traditional shotgun sporting purposes such as hunting,
and trap and skeet shooting, or is as suitable for recognized
sporting activities as the type which is generally recognized.
(Drake Dec. para. 8); (Owen Dec. para. 7).

15.  Thus, ATF argues that while hunting, and trap and skeet
shooting have been recognized shotgun "sports" for centuries, and
target shooting a recognized handgun and rifle "sport," events such
as police combat competitions only recently have generated interest
outside the military and law enforcement arena and may or may not
attain general recognition as sports." (Drake Dec. para. 8); (Owen
Dec. para. 33).

16.  Senator Dodd pointed out that the intent of the legislation
was to "[regulate] the importation of firearms by excluding surplus
military handguns, and rifles, and shotguns that are not truly
suitable for sporting purposes." 114 Cong. Rec. S 5586, Co. 2 (May
15, 1968) (Statement of Sen. Dodd).

17.  During the Congressional discussions leading to enactment of
the Gun Control Act, Senator Dodd and Senator Hansen engaged in the
following colloquy concerning the meaning of "sporting purposes":

     MR. HANSEN: Would the Olympic shooting competition be a
     "sporting purpose?"
     MR. DODD: I would think so.
     MR. HANSEN: What about trap and skeet shooting?
     MR. DODD: I would think so.  I would think that trap and skeet
     shooting would certainly be a sporting activity.
     MR. HANSEN: Would the Camp Perry national matches be
     considered a "sporting purpose?"
     MR. DODD: Yes, that would not [sic] fall in that arena.  It
     should be described as a sporting purpose.
     MR. HANSEN: I understand the only difference is in the type of
     firearms used at Camp Perry which includes a wide variety of
     Military types as well as commercial.  Would all of these
     firearms be classified as weapons constituting a "sporting
     purpose?"
     MR. DODD: No, I would not say so.  I think when we get into
     that, we definitely get into a military type of weapon for use
     in matches like those at Camp Perry; but I do not think it is
     generally described as a sporting weapon. It is a military
     weapon.  I assume they have certain types of competition in
     which they use these military weapons as they would in an
     otherwise completely sporting event.  I do not think that fact
     would change the nature of the weapon from a military to a
     sporting one. 
     MR. HANSEN: Is it not true that military weapons are used in
     Olympic Competition also?
     MR. DODD: I do not know.  Perhaps the Senator can tell me.  I
     am not well informed on that.
     MR. HANSEN: It is my understanding that they are.  Would the
     Senator be inclined to modify this response if I say that is
     true? (27461)
     MR. DODD: It is not that I doubt the Senator's word.  Here
     again I would have to say that if a military weapon is used in
     a special sporting event, it does not become a sporting
     weapon.  It is a military weapon used in a special sporting
     event.  I think the Senator would agree with that.  I do not
     know how else we could describe it ...
     MR. HANSEN: If I understand the Senator correctly, he said
     that despite the fact that a military weapon may be used in a
     sporting event, it did not by that action, become a sporting
     rifle. It [sic] that correct?
     MR. DODD: That would seem right to me.... As I said previously
     the language says no firearms will be admitted into this
     country unless they are genuine sporting weapons.... I think
     the Senator and I know what a genuine sporting gun is.
114 Cong.Rec., 90th Cong., 2d Sess.  Pt. 21, 27461-62 (September
18, 1968).
     The Firearms Advisory Panel also made it clear that not every
activity in which ammunition is expended and persons participate
would be considered a sport for purposes of importation (eg.,
"'plinking' was described as a pastime by the panel since any
firearm that could expel a projectile could be used for this
purpose without having any characteristic generally associated with
target guns."). (A.R. 103).

18. The Bureau spokesmen note that traditional 12-gauge sporting
shotguns on average weigh 7-8 pounds and rarely, if ever, exceed
ten pounds.

19. In fact, ATF claims that the width of the drum magazine is
similar to the drum-fed machine guns and other specialized weapons
used by the military and law enforcement.  Gilbert notes that the
agency's findings are somewhat misleading inasmuch as the width of
the USAS with box magazine is only 11/4 inches.

20. The Bureau argues that a large magazine capacity and rapid
reloading are military features.  Gilbert has indicated that ATF
has falsely stated that the USAS-12 box magazine holds twelve
shells. Instead, Gilbert states that a seven round magazine was
produced for ATFs inspection.  Additionally, Gilbert argues that
box magazines can be lengthened or shortened depending on desired
shell capacity.

21. Gilbert has denied that the model it sent to ATF, for
examination and testing to determine if the weapon is a sporting
shotgun, was fitted with a bayonet lug.

22. The Bureau claims that despite the plaintiff's evidence on the
initial application from a number of people who wanted to use the
weapon for deer hunting, target shooting, etcetera, it was
reasonable for the agency to conclude that the firearm's
predominant physical features (i.e., weight, size, etcetera) are
not those of a sporting firearm.  The agency argues that almost all
firearms currently being manufactured have a conceivable sporting
purpose but that this particular firearm is simply not of "a type
[of firearm] ... generally recognized as particularly suitable for
or readily adaptable to sporting purposes."

23. In 1982, ATF determined that a police combat competitions could
be considered a "sport" under Section 925(d)(3) and found the
Franchi SPAS-12 shotgun to be particularly suitable for that sport
(A.R. 169).  However, in 1984, ATF reversed that position and
refused to classify the Striker-12 as a "sporting" weapon (A.R.
175).  The Bureau maintains that the policy change was made in 1984
because police combat competitions had not by 1984-and still have
not gained general recognition as "sports."  ATF claims that due to
administrative oversight, the importers of the Franchi SPAS-12 have
continued to receive agency permission to import that firearm. 
However, on December 8, 1988, just one day prior to oral argument
in this cause on the cross-motions for summary judgment, ATF sent
a letter to the importers of the SPAS-12 informing them that future
applications for importation of that firearm will be considered on
a case-by-case basis.

24.  This Court gives due deference to the agency's interpretation
of Section 925(d)(3), inasmuch as there no compelling indications
that said interpretation is wrong. See, eg., Smith, supra, 766 F.2d
at 1519.

25. If ATF was not allowed to make distinctions between firearms
and exclude those that are more clearly military than sporting,
that agency would be reduced to a nonentity so far as importation
under Section 925(d)(3) is concerned.

26. In deciding that ATF's decision was not arbitrary and
capricious, this Court means to suggest that defendant's conclusion
was warranted by the facts and was based on the facts born out by
the administrative record. (See Count Three of the Complaint).

27. For a person to obtain a protectable property interest, he must
"have more than an abstract need or desire for it.  He must have
more than a unilateral expectation of it.  He must instead, have a
legitimate claim of entitlement to it."  Board of Regents v. Roth,
408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). 
Gilbert has not proven that it has a legitimate claim of
entitlement to the importation of the USAS-12 sufficient to create
a property or liberty interest.

28. That is, this court finds no absolute constitutional right of
an individual to import firearms. Thompson v. Dereta, 549 F.Supp.
297, 299 (D. Utah 1982) Cf. ("There is no absolute constitutional
right of an individual to possess a firearm."), appeal dismissed,
709 F.2d 1343 (10th Cir.1983); United States v. Swinton, 521 F.2d
1255, 1259 (10th cir.1975) (in a criminal case, the defendant was
convicted of engaging, without a license, in the business of
dealing in firearms and the court in part held that there is no
absolute constitutional right of an individual to possess a
firearm), cert. denied, 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324
(1976).

-- SeanNewton - 04 Mar 2010

Topic revision: r1 - 04 Mar 2010 - SeanNewton
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