An Investigation into the Massachusetts Attorney General’s Regulations on Handguns
(940 CMR 16.00)
In the summer of 1996, Attorney General L. Scott Harshbarger received nationwide media attention when he announced his so-called consumer product safety regulations on firearms. The focus of this report is on uncovering the fraudulent manner in which the Attorney General used “unfair and deceptive” tactics to create 940 CMR 16.00.
After the announcement of these proposed regulations, a public hearing was held in November 1996. This hearing left many individuals with more questions than answers.
This report will show that prior to the receipt of any technical supportive information, the regulations were put in place in early 1998.
Working on behalf of several firearms manufacturers, the American Shooting Sports Council challenged the new regulations in court. Although a Superior Court initially granted an injunction, the Massachusetts Supreme Judicial Court overturned that decision. Scott Harshbarger’s successor, Attorney General Thomas Reilly, began enforcing the regulations in April of the year 2000 still having answered none of the pertinent questions.
Because proof of need had not been provided to the gun owners, the industry, or the citizens of Massachusetts GOAL decided it was time to review whatever records were available.
In April of the year 2000, Gun Owners’ Action League Executive Director Michael D. Yacino wrote to the Attorney General of the Commonwealth of Massachusetts and made a request for all documents under the Freedom of Information Act. The actual request was:
As of December 1, 2001, GOAL staff has reviewed 14 boxes containing more than 24,000 pages of material. To view those materials, GOAL paid $12,160.76 in fees to the Attorney General’s office.
In order to obtain actual copies of any of the material, GOAL was required to submit a written request specifying the material we wanted. GOAL was also informed that in addition to the original “research” fees, copies of any documents would cost us an additional $.20 per page.
From the beginning it became obvious the exorbitant research fees charged to GOAL were the result of an extremely poor method by which the material was filed. The Attorney General’s office apparently archives material by employee, rather than by case or subject matter. Archived file boxes from individual employees that took part in the firearms issue had to be separately recovered and reviewed by the Attorney General’s staff. Any material thought to be pertinent to GOAL’s FOIA request was held for approvaland then copied for our review. For the second and subsequent boxes viewed, each page was given an individual number, beginning with AGO 00001.
Rather than providing GOAL with a concise “Handgun Regulations” file (which apparently does not exist) the GOAL staff was forced to wade through the files of every employee involved in the project. While this method of archiving is understandably practical in storing employees’ historical records, it is not an acceptable method of keeping records on the creation of state regulations. It is abundantly obvious that the average citizen could never afford the cost for reviewing public documents.
Over the course of eighteen months, GOAL would, from time to time, receive notice that the Attorney General’s staff had found more material that matched our request. The notice would also indicate the amount of money GOAL owed for research. Only upon payment of that sum was the GOAL staff allowed to view the material. The GOAL staff was provided with a conference room at the Attorney General’s office, which always included one of his staff.
Our review has left us with many questions.
If these regulations were so badly needed:
The very manner in which these regulations were created and subsequently “sold” to the public was indeed “unfair and deceptive”. By releasing this report GOAL hopes that the current legislative, administrative and judiciary branches of government will feel compelled to review the manner in which the regulations were enacted as well as the overall conduct of the agency.
Section 16.01 is the definitions section. The following terms are defined: “average group diameter test result; combination handle lock; educational collector; group diameter test result; hammer deactivation device; handgun; handgun drop test; handgun performance test; handgun purveyor; key activated trigger lock; load indicator; magazine safety disconnect; make and model; make and model performance requirements; make and model’s average group diameter test result; malfunction; passive use-limitation device; prone to accidental discharge; ready to fire; serial number; solenoid use limitation device; test loaded; and transfer.”
Section 16.02 defines “general” unfair and deceptive practices, that is, it is an unfair and deceptive act under Chapter 93A of the general laws to sell a gun in violation of “any other existing local, state or federal statute, rule or regulation.” Specific examples of actual Massachusetts crimes are cited, but not by section.
Section 16.03 is labeled Tamper Resistant Serial Numbers, stating that a handgun purveyor may not offer to transfer a handgun if the serial number is susceptible to eradication.
Section 16.04, “Sale of Handguns Made From Inferior Materials” sets both a performance test and a material composition test. However, the materials composition test does not apply if the handgun meets the Make and Model Performance Requirements.
Section 16.05 “Sale of Handguns Without Childproofing or Safety Devices” requires that all handguns sold have a safety device, contain a mechanism which precludes an average five year old from operating the handgun, and requires all semi-automatic handguns to contain a load indicator or magazine safety disconnect.
Section 16.06 requires that handguns be sold with “Safety Warning Disclosures,” and that the handgun-purveyor demonstrate all safety devices on the handgun. On a jump to a different topic, it also requires that a handgun purveyor not sell a handgun with a barrel shorter than three inches unless the “limits of the accuracy of the make and model” are provided in writing to the customer.
Section 16.07 is entitled “Transfers Of Used Handguns” and lays down some confusing exceptions with cites back to previous sections of the regulations. The structure is very confusing why were the exceptions not just placed with the original sections?
Section 16.08 contains the standard “Severability” clause.
Section 16.09 lays out a schedule of enforcement dates, from January 15, 1998 to September 30, 1998.
WHY WAS 940 CMR 16.00 CREATED?
Records obtained through GOAL’s FOIA request show that as early as 1994, the Attorney General was pursuing a means to restrict the lawful sale of handguns in Massachusetts. The initial focus seemed to be the regulation of firearms advertising as would be normal with issues surrounding the use of MGL c. 93A. An interoffice memo dated March 28, 1994 states:
In April 1995, Jon Vernick and Stephen Teret wrote a glowing letter to George Weber of the Office of Consumer Protection. In the letter they stated “enjoyed the opportunity to meet with you and other members of the Attorney General’s office and are excited about the prospects for action in Massachusetts.” The letter goes on to detail 16 different enclosures, most of which are related to firearms advertising.
At some point in early 1995 the Attorney General’s staff seemed to have lost interest in the regulation of handgun advertising. This may have been caused by the lack of proof that any manufacturers were using deceptive advertising.
However, the desire to restrict the lawful sale of handguns in Massachusetts was not lost as was evident in another interoffice memo dated May 18, 1995. In this memo the staff looked at copying the success of the tobacco lawsuits:
And again in a May 25, 1995 memo from Peter Sacks included some Department of Public Health statistics, and said:
By the end of 1995 it seems the agency personnel were no longer even trying to fool themselves or disguise their intentions. In fact the tenor of the memos seemed to reflect the staff’s frustration caused by their inability to come up with a legitimate platform with which to satisfy Mr. Harsharger’s objective.
The terminology used in these memos is very important. They describe an action that was not motivated by an existing problem, but rather one that was simply seeking a way to justify the Attorney General’s agenda.
It is obvious from what we found that the original intent in creating some type of regulation had little or nothing to do with advertising, accident prevention, crime prevention, or consumer protection. Clearly the purpose was the persecutionof gun manufacturers in an attempt to use a state regulatory scheme to eliminate or substantially reduce the lawful sale of handguns in the Commonwealth.
THE MIND SET
Throughout the time period of the regulation’s initial creation and subsequent revision, the Attorney General’s office continued to gather data without really knowing what they were looking for, what they were trying to accomplish, or realizing the limitations or scope of any given data source they might discover.
Many individuals on the Attorney General’s staff received and shared information from the state’s Weapon Related Injury Surveillance System (WRISS). The state’s Department of Public Health publishes this data on knife and gun related injuries, which is gathered through a hospital based reporting system. This particular data focuses on the type of injury and occasionally more specific data on the type of weapon used. However, the parameters of this reporting system makes it very difficult to break down the data into useful information.
No attempt is made to determine whether or not a firearm used was lawfully owned, or unlawfully owned.Furthermore, no attempt was made to distinguish between crimes committed and lawful acts of self-defense.
There are several concerns created by this lack of data. If all of the gun related injuries being reported are caused by unlawfullyowned guns, then regulating lawfulownership will have no effect. There is no evidence the Attorney General’s staff was aware of the limits of the WRISS data or any other studies they collected. In fact, there is no indication that there was ever any distinction between lawful and unlawful gun owners in their mind.
This lack of distinction is further borne out by a conference held in June 1996. Entitled “Disarming Children, Creative Responses To Youth Handgun Violence”. The Attorney General’s office was active in the creation of this event. The invitees to the symposium included representatives of many social programs, and local organizations that oppose firearms ownership.Though it was obvious that firearms ownership would be denigrated as part of this event, no invitations were extended to groups representing the interests of lawful gun owners.
Repeatedly, the Attorney General staff’s files contained studies on firearm injuries. However, there was no realistic attempt to examine the cause of “firearms injuries,” e.g.: how many injuries were due to crime? How many were due to poor firearms design? The staff’s lack of expertise in interpreting these studies resulted in regulations that fall most heavily on the group of consumer/gun owners least likely to cause crime, and on the manufacturers of quality firearms.
WHO WAS CONSULTED?
Stepping aside from the questions of regulation content, a person reviewing the record would be curious to know who were the experts consulted by Attorney General Harshbarger as part of the regulation’s creation.
On January 5, 1996, a staffer sent George Weber a draft of a form letter, with the subject of “Potential Consumer Protection Regulations.” The letter read:
It is very important to note that the letter never mentioned anything about individuals who were versed in firearms manufacturing, firearms safety, criminology, or any other field that might be able to provide the correct technical expertise necessary in establishing these types of regulations. There is also no indication in the files that such a letter was ever sent to anyone in Massachusetts, nor is there a record of persons to whom the letter was sent.
However, on February 9, 1996, David Kennedy (Senior Research Fellow, John F. Kennedy School of Government), did receive a letter from George Weber that briefly stated, “Enclosed are the draft regulations we discussed. Thank you.”
Why was Mr. Kennedy consulted? The archives attached to the copy of that letter include an internal memo from Norah Wylie that describes Mr. Kennedy as follows:
In short, Mr. Kennedy’s background tells us that his field of expertise is not in gun manufacturing, consumer products, firearms safety nor firearms accidents, but rather is studies on juvenilesand gun crimes.
A second person consulted was Stephen Teret, Director of the Center for Gun Policy and Research at Johns Hopkins University. George Weber sent him a letter on February 21, 1996:
Mr. Teret has a history of opposing handgun ownership. Mr. Teret is described as a lawyer and a physician, but there is no evidence in the record that he is knowledgeable about the manufacturing or retail process of firearms.
Another person to whom the regulations were sent is Whit Collins. Mr. Collins claims to be a former editor of Guns And Ammo magazine back in the 1970’s. Another recipient was Garen J. Wintemute, MD, from the University of California, Davis. Mr. Wintemute has written several articles about firearms, such as “Ring of Fire: the Handgun Makers of Southern California.” In June of 1996, he released a report entitled “The Relationship Between Firearm Design and Firearm Violence.” It appears this report MAY have influenced slightly the final format of the regulations.
Mr. Wintemute’s report outlines the shift in firearms manufacturing that took place over the last two decades from primarily revolvers to mostly semi-automatic handguns. It tracks other changes in design such as double-action-only semi-automatics, and new calibers (9mm and 10mm) that were becoming more common. Mr. Wintemute then outlines which guns ATF trace data say are more common.
As a Congressional report decisively proved, the ATF does not trace every gun. So-called “trace guns” are chosen using subjective criteria that may or may not be related to a criminal investigation. So any conclusion drawn from trace data is equally subjective. At any rate none of that material had anything to do with product design imperfections.
In addition the report, did not support the ban of any gun. The only conclusion that may accurately be drawn is that when design changes were made, some amount of the new guns were used in crime. In other words, the guns used in crime are a reflection of what was more recently manufactured. Nowhere in the study is there an attempt to determine what percentage of newly manufactured guns makes its way to the criminal nor how to stop that process. The report suffers from the same inability to separate lawful use from criminal misuse as earlier demonstrated by the Attorney General’s staff.
IGNORANCE OF THE RETAIL MARKET
The Attorney General’s office, in drafting up the regulations, seemed to have very little understanding of how the retail firearms market works. Their lack of understanding (or perhaps the unwillingness to acknowledge firearms manufacturing and retail as a legitimate industry) is one of the very reasons why the regulations have impacted lawful commerce so heavily.
The Attorney General’s office mistakenly believed that manufacturers sell directly to dealers. Therefore, they assumed that it would be easy for a manufacturer to make modifications to sell guns in Massachusetts. However, this industry, like many others, does not operate in that manner.
Manufacturers, licensed by the federal government, produce guns. However, most manufacturers do not sell directly to firearms dealers. Instead, distributors, or wholesalers, buy firearms from the manufacturers, and then sell these to licensed firearms dealers all across the country.
Thus Smith and Wesson, based in Springfield, Massachusetts, manufactures a handgun, which could be sold to a distributor in Illinois. From there, the distributor could just as easily sell that handgun to a licensed dealer in California as to one in Massachusetts.
In short, the Massachusetts Attorney General is dictating to manufacturers, “Make handguns this way, or don’t sell them in Massachusetts.” Because of the way the retail market works, the Attorney General’s office is now forcing all gun manufacturers to make wholly Massachusetts compliant guns, or else forgo any Massachusetts sales at all. In short, these regulations impact interstate commerce! Inexplicably, our state’s courts have allowed this situation to continue.
More importantly, 940 CMR 16.00 blurs the line between dealer and manufacturer. “Serial number” is defined as: “shall mean the number stamped, inscribed or placed upon a handgun by a handgun purveyor pursuant to G.L. Chapter 269, section 11E.” Dealers do not place serial numbers on firearms, this operation is done by the manufacturers. So is a handgun purveyor intended to be a manufacturer? No, because the regulations define a purveyor as one who conducts retail sales, something handgun manufacturers do not do.
STANDARD OF PROOF
In his creation of the new Handgun Regulations (940 CMR 16.00) claims that his ability to establish said regulations is defined and granted under Massachusetts General Law Chapter 93A, Section 2: Unfair practices; legislative intent; rules and regulations. This particular section of law does allow, in Chapter 93A, Section 2 (c), the attorney general to make rules and regulations regarding “unfair or deceptive acts”, but not without restrictions.
Chapter 93A: Section 2 lays out specific guidelines by stating in (c): “Such rules and regulations shall not be inconsistent with the rules, regulations and decisions of the Federal Trade Commission and the Federal Courts interpreting the provisions of 15 U.S.C. 45(a)(1) (The Federal Trade Commission Act), as from time to time amended.”
Since Chapter 93A, Section 2 restricts the Attorney General to the same extent that the Federal Trade Commission would be, we must then refer to 15 U.S.C. 45 to determine those guidelines. Referring to 15 U.S.C. 45(n), we find that this section of federal law holds the Commission, and therefore the attorney general, to a “standard of proof”. This standard is clearly outlined so that the parties in question “shall have no authority to declare unlawful an act or practice on the grounds that such act or practice is unfair unless the act or practice causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers…”
The second part of paragraph (n) specifically states that such regulations may only be adopted if said regulations are:“not outweighed by countervailing benefits to consumers or to competition”It is evident that these regulations severely “outweigh” benefits to the consumer. Since the passage of the regulations, access to quality firearms for all purposes has been drastically hindered. Coupled with the fact that the Attorney General has never been able to show ANY harm caused by “unfair practices”, is further proof these regulations were fraudulently implemented and do not meet the “standard of proof”.
Through GOAL’s investigation we have determined that the Attorney General has not met this “Standard of proof”. Nowhere in any of the materials we have reviewed did the Attorney General demonstrate that anyone had been harmed or was likely to be harmed by a handgun because of existing manufacturing standards. Nowhere has he proved that injuries were likely to occur if a person had taken standard safety precautions, thus making accidents reasonably avoidable by consumers.
In an October 16, 2001 decision in Emerson v. U.S., the United States District Court stated that: “firearms ownership is not inherently evil or suspect and that thus a certain mens reais required.” While this case is not directly pertinent to these regulations, this part of the courts decision clearly indicates that before any restriction on firearms can be enforced, the government would have to demonstrate a criminal or wrongful purpose (“unfair or deceptive”). Since our investigation did not uncover any evidence that firearms manufacturers showed any criminal intent or wrongful purpose in the advertising, distribution, or manufacturing of their products, it is doubtful that the creation of these regulations could be considered lawful.
The Attorney General did not meet the requirements necessary for him to be covered by 15 U.S.C. thus he was not covered by Chapter 93A, Section 2. Indeed the Consumer Product Safety Commission has been prohibited from regulating guns by Congress. It is our opinion that reasonable minds would conclude that according to the very laws cited by the Attorney General, he was not eligible to promulgate these regulations.
THE SPIRIT OF THE LAW
Chapter 93A, Section 2(a) is specifically designed to address the conduct of a company/person. This conduct comes in question when the company/person uses “unfair” or “deceptive” practices, normally in the advertisement of their product, to gain an advantage over their competitors.
For example, imagine a car manufacturer claiming that a specific model got 30 miles per gallon in fuel economy, when in fact the model actually produced 15 miles per gallon. By using these distorted mileage figures the auto company is clearly using “unfair and deceptive” business practices to gain an advantage over their competitors.
What is important to note in this example is the Attorney General could, under 93A, force the manufacturer to cease advertising the false numbers. However, there is nothing in 93A that would allow the Attorney General to force the car manufacturer to change the performance standards of the car.
In the case of 940 CMR 16.00, the Attorney General has failed to show how any person was harmed financially, physically, or otherwise by any sort of misleading advertising by a firearms manufacturer. He has also failed to demonstrate how other competitors in the industry were harmed by another manufacturer’s advertisement.
The actual irony is that 940 CMR 16.00 is itself unfair and deceptive. With its title of “Handgun Sales”, it leads people believe that these regulations have something to do with the conduct surrounding the sale of handguns. In actuality the regulations have little to do with sales or advertisement, but rather they regulate the manufacture of handguns.
To accomplish this, the Attorney General created a set of manufacturing standards based noton scientific evidence, but rather to satisfy the wishes of gun control groups. With these new manufacturing standards in place, the Attorney General could then claim that any company who did not adhere to them was trying to gain an advantage over their competitors.
The Attorney General tries to further legitimize his approach by using the actual language from 93A within his regulations. For example:
Nowhere has the Attorney General’s office proved that any companies ever advertised that their products originally met these type of standards and later failed to do so. Once again, this demonstrates that in order to meet the spirit of 93A, the Attorney General’s office had to “manufacture” standards in order to establish a problem for which they could “create” a solution.
THE AFFECT ON FIREARMS DEALERS
The federal government licenses certain persons as firearms dealers. These people are referred to as FFL’s (short for federal firearms license). Massachusetts provides an additional level of licensure, and requires that persons engaged in retail sales to the public obtain a state dealer’s license.
Although the Attorney General was clearly targeting manufacturers, he has little authority to regulate out of state businesses. Therefore the format of the regulations is to forbid the state’s licensed dealers from selling guns that do not meet certain standards.
There is no evidence that the Attorney General’s office ever considered the effect 940 CMR 16.00 would have on licensed dealers. The cover sheet filed with the Secretary of State’s office claimed that the effect on the dealers would be “de minimus.”
Fostered by vague wording of the regulations, many firearms distributors are not clear as to what will and will not comply. Most have refused to ship any handguns into Massachusetts due to the heavy fines involved for noncompliant guns ($5,000 per gun) and the Attorney General’s unwillingness to make any clarifications in writing.
There are virtually no handguns by Sturm Ruger, Thompson/Center, Freedom Arms, Hammerli, and other fine manufacturers being sold. Beretta, Sig, and Glock are selling only a fraction of their product line. Glock and Beretta are not even selling or shipping the same handguns used by the military and our own law enforcement personnel, because they are not 940 CMR 16.00 compliant.
If gun dealers do not have products to sell, their businessisaffected. The reality is that the regulations have greatly impacted licensed dealers, and that hundreds of small properly licensed businesses have closed.
WHY NO ANSWERS?
The very questions that have been asked by many individuals, organizations and companies prior to the creation of these regulations, still persist:
These questions were never answered as part of the public hearing process. In fact the records show that the Attorney General’s staff never took the time to respond to the questions even as a matter of courtesy.
In December of 1996, a local representative of the Jews for the Preservation of Firearms Ownership submitted a FOIA request for datato back up the regulations. Surprisingly the Attorney General’s office replied “we have no recordsthat match your request”.
Any dictionary would tell us that there is a difference between the word “data” and the word “records.” The fact that the Attorney General’s office declined the FOIA request shows us that neither data nor records to back up their claims existed at that time (see also the section labeled “staff have doubts” in this report), which would explain why the agency has taken so long to respond to GOAL’s request.
After viewing thousands pages, we are left with the conclusion that the regulations were created primarily for political reasons. Further, that the internal memos clearly indicate the Attorney General’s staff wanted to “get” the gun manufacturers, chose the method, and then sought exuses for them. The real reasons appear to be a mixture of Scott Harshbarger’s dislike of guns; his desire to appear to be tough on gun owners, and his political ambitions.
DISSENSION IN THE STAFF
By early 1996, the outline for the regulations had taken shape, but the doubts of the Attorney General’s staff were becoming clearer and stronger.
In a memo, staffer Bill Lee voiced his doubts on several of the issues present in the current internal drafts. Mr. Lee emphasized that such action should be legislative and urged that the Attorney General’s office act only if the legislature failed to.Here are key excerpts of this January 9, 1996 memo:
1. “Saturday night specials.I don’t think that we should move to ban those guns by regulation at this point. First I think the decision to ban a type of weapon outright is a legislative one.
2. “Serial Numbers. ATF has stated in meetings that defaced serial number are not that big a problem. They have the technology to “raise” serial numbers that have been tampered with or eradicated.
3. “Childproofing. Like the Sat. Night Special regs, these requirements seem to me to be legislative choices, at least in the first instance. Requiring higher trigger pressure, multiple motion firing mechanisms and load indicators would force a major change in the manufacturing process. Such a regulation would only hurt Massachusetts manufacturers, because out of state manufacturers would simply cease to send products to Massachusetts.
4. “Safety warning. I think this provision should be deleted from any initiative that we undertake. A warning such as this, included with a newly purchased gun, will fall on deaf ears. Moreover, the validity of the statement regarding likelihood of homicide in a home with a gun is fiercely debated. Other language in the warning sounds overly tentative.”
In an attempt to address some of Mr. Lee’s concerns, Glenn Kaplan (another member of the Attorney General’s staff) explained that the last time the legislature had considered a ban on so-called “Saturday Night Specials” was in 1974. GOAL finds that statement to be untrue. Bills to ban all or certain classes of handguns are routinely filed in the state legislature.Rather than suggest the Attorney General file legislation to ban them, Mr. Kaplan used the supposed legislative inaction as a validation for regulating them. In either case, the desired end result was clearly a gun ban, not to improve the quality of small guns, but to ban them.
Secondly, Mr. Kaplan indicated that there was plenty of data with regard to:
Once again, the cart is before the horse. The last sentence of one paragraph of this memo speaks eloquently of the backwards approach and does not begin to state how the intended regulations would prevent crime with illegal firearms or the injuries caused by these crimes. Mr. Kaplan then goes on to contradict himself:
Once again, the records show a clear and deliberate attempt to engage in a purely political endeavor against gun manufacturers. The Attorney General and his staff were planning to ban or regulate out of existence an entire “class” of guns, without even remotely knowing if they were causing any problem at all in Massachusetts.
These previously outlined facts bring us to a very important question that all Massachusetts citizens should demand an answer to: Does the Attorney General of the Commonwealth have the authority to regulate items when he has no evidence that they are a safety threat to the consumer? The evidence that GOAL uncovered suggests that the Attorney General’s own staff wanted this and other questions answered.
On April 24, 1996, Ed Cafasso, Scott Harshbarger’s Director of Communications sent a harshly worded memo to members of the Consumer Protection Division, Scott Harshbarger, and others. The memo raises important questions which Mr. Cafasso wanted answered, and that he expected the media to raise.
“Some relevant questions regarding this ‘proposal’, which apparently has already been shopped around:
1) “Isn’t it true that most accidental kid deaths are the result of careless owners? This proposal does nothing in that regard. In fact, it appears to blame manufacturers entirely. How does that fit Scott’s consistent theme of individual responsibility?
2) “The argument made by police officers for the past decade is that they are facing new, high-powered guns on the streets. That is why they have gotten rid of their old six-shot revolvers. Now we are arguing that Saturday Night Specials are the weapon of choice? How is that possible? Doesn’t that fly in the face of reality?
3) “Is this the best that the AG has to offer? The President of NAAG, with an army of prosecutors and state police at his disposal, is going to try to discounters and careless care dealers? Why isn’t he doing something (sic) about a coordinated effort to stop the flow of guns brought up here from states with weaker handgun laws? Aren’t there more forceful and relevant things to be done?
4) “How do we expect this regulation to accomplish anything given 1) the existing underground supply of Saturday Night Specials; 2) the fact that we don’t have the great wall of China around our state borders? 3) the fact that manufacturers can simply make a new kind of gun that skirts the regulations?; 4) the fact that criminals will simply obtain other kinds of more lethal guns that are not covered by the regulations?
5) “How many kids were killed with Saturday night specials in Massachusetts in the past year, two years, five years? I have yet to see any compelling reason to do this. Is there one, besides the old “one life is enough argument.” If that’s our rationale, why don’t we propose regulations to correct every conceivable situation that could save one life?
6)”How do we expect to enforce this/ will we simply add a 93A charge to anyone arrested for using a Saturday night special in commission of a crime? Do we have the staff to do it and do it right? Why would any criminal take this seriously, given the existing criminal laws? Are we just looking for headlines here?
7) “If we all agree with the kid-proofing and serial number ideas, why don’t we just do those instead of with an incredible gun control over-reach?
8) “Is it really an effective use of staff time and resources to put together a huge media event and pre-brief major dailies just so they can divert attention from the fact that much of this proposal, or at least the Saturday night special portion, is Ed
9) wrong-headed? It’s one thing to go nuclear on something like tobacco, which needs to explained (sic) more than anything, and going nuclear on something because it is flawed.
10)”Doesn’t the fact there are this many (and probably more) legitimate questions about this proposals (sic) serve as a warning of how it will be received, no matter how much spinning we attempt to do?
11) “What precedent does this set in terms of exposing other businesses to excessive regulatory intervention?”
This blunt assessment by one of Scott Harshbarger’s key people brutally outlines the major flaws with the regulations and the Attorney General’s approach to this issue. It also spells out the truth about Mr. Harshbarger’s real agenda:
On April 24, Mr. Lee sent around a memo to the gun “group” further expressing his doubts about the intentions and effectiveness of the proposed regulations. The first sentence indicates “I can’t make the meeting, so I am giving you some quick thoughts in writing.” It explains why this memo is dated the same day as Mr. Cafasso’s memo. In his memo Mr. Lee stated:
Timing: we shouldn’t announce this until after the assault weapons ban has passed.It would only feed into the NRA’s position that the assault weapons ban is just the beginning of the slippery slope of taking away everyone’s guns.
Statistical support:I agree with those of you who feel we need more support if we are going to do this correctly. How many Saturday night specials in circulation? What % of market? What % of guns used in crimes are SNS’s? Do they really blow up in your hand let’s collect the anecdotes.”
Clearly, the desire here is to find statistics that support their point of view, not to create regulations that will effectively solve a real problem. Once again, this is further proof that the regulations were created in the absence of supporting data. Mr. Lee further states:
Two months later, on July 22, 1996, Ed Cafasso sent another memorandum to concerned parties in the office. From the angry tone of his memo, it appears that no one had bothered to respond to the April memo. GOAL feels it necessary to reproduce this lengthy memo in full in order to demonstrate how it truly expresses the fundamental flaws of these regulations.
“Here is a shorter version of the questions I first posed about this idea on April 24. (for purists, a copy of the original memo is attached). Not a single one of these questions has been answered, which I assume is an indication that there are no satisfactory answers.
“Also attached is the (June 20) question and answer memo that purports to respond [to] these concerns. As you can see, new questions were created. The answers won’t fly far. The original questions were ignored.
“For the record, I consider the idea of banning Saturday Night Specials to be an incredible publicity stunt that will not only subject the Attorney General to unnecessary criticism (and in some cases, derisive laughter) but also prove to be absolutely worthless from a consumer protection and law enforcement perspective.
“In the meantime, it might be nice if one of you could realistically and satisfactorily answer the kinds of questions that the Attorney General will be expected to answer once you make this mistake official.”
Questions and Answers
Unfortunately for consumers, the media did not respond as the Attorney General’s staff had predicted. The only persons to raise these questions were Gun Owners’ Action League, and affiliated dealers. Neither the Attorney General nor his staff has ever reasonably responded to either party.
As explained earlier in this report, the process of reviewing materials is such that GOAL is looking at copiesof original documents. Therefore when we request a copy of a memo, we receive a copy of a copy.
The GOAL copy of Ed Cafasso’s July 22, 1996 memo has several handwritten notes on it. Most are illegible, but they appear to be someone’s attempt to answer these questions. The responses that were given are lame at best.
Mr. Cafasso asked, “Why are we doing this to small businesses?” the recipient indicated “affects all equally.”
In response to the question “Do we know how many of these were sold in state last year?” the recipient said, “no.”
Regarding the questions on data (point # 3 above), the recipient cited WRISS data. However, as indicated earlier, in the report, that report might show caliber of firearms wounds, but it can not and does not distinguish between lawful and unlawful gun ownership and use. A woman defending herself from rape, and a drive-by shooting would be treated equally in the WRISS data.
Regarding the current supply of these guns, the recipient noted, “37% of firearms found in a study 1991-1994 were sold interstate.” In fact, federal studies show that Massachusetts might be a recipient of traffic in stolen guns, but it is not considered a “supply state.” The idea that the regulations might choke lawful traffic into Massachusetts, but would not touch the problem of unlawfultraffic seems to have been ignored by the AG’s staff.
A footnote on question seven indicates that the Attorney General’s staff met in three instances with the manufacturers. The record indicates otherwise. There is no record of any meetings after the 1994 meeting with the New England Attorneys General. The talk at that meeting was how manufacturers could keep “guns off the streets” and not the issues of duplicate serial numbers, safety devices, trigger pulls, magazine disconnects or any other topics. Indeed, in April of 1996, Mr. Lee indicated that no meetings had taken place since 1994.
The bottom line is that Mr. Cafasso’s assumption is correct. Not a single one of these questions was ever completely answered, nor was there ever an honest attempt to do so. This is yet another indication that there are no satisfactory answers.
One of the most frustrating aspects of the creation and implementation of the regulations has been the vagueness of the focus. The regulations were advertised as a means to prevent crime or accidents. The Attorney General’s staff has been very adept at switching back and forth between the two topics.
To justify these “consumer product safety” regulations, the public hearing had a long parade of crime victims. When someone raised a question about accidents, the answer was given about how the guns were used in crime. When someone raised a question about crimes, the response was a fact about accident statistics. The truth is, neither the Attorney General nor his staff had accurate data to justify the regulations, but they successfully switched topics often enough to even confuse their own people as to the intentions.
For example, Mr. Cafasso was cited earlier in this report as having grave doubts about the lack of supporting data. He felt so strongly about this topic that he sent an email (July 23) to “Tom”. Ed wrote:
“I appreciate your views and look forward to getting this resolved. My main concern at this point is that we do not have enough empirical or statistical evidence regarding Saturday night specials in MASSACHUSETTS.
“We cannot tell anyone how many we think are available here, how many are sold legally or illegally each year, how many are used in the commission of crimes in Massachusetts, how many have blown up in someone’s hands, etc.
“If we could just nail down some factual support for a ban beyond general national numbers ginned up by gun control types it would be a lot easier to swallow and a lot easier to sell.
“That was the strongpoint of the tobacco launch. We were able to say how many people in Massachusetts die each year, how may people in Massachusetts get addicted, how much money we spend. It gave the suit instant credibility.
“Right now, all Scott will be able to say in defense of a ban is that “these guns are generally thought to maybe be poorly made and are used in a lot of crimes in Massachusetts, we think.
“Can’t we use our friends in the law enforcement field to come up with some fairly hard facts on these guns and their role in Massachusetts. My fear is that we will spend the next three months on the defensive, scrambling to answer legitimate questions.“
Once again, the data was never found. The Attorney General announced the regulation just a couple of weeks later. Ed Cafasso’s email was “responded” to by George Weber. I use the word in quotes because most of Ed’s questions were deflected, not answered.
No scholar of logic would consider the above statement to be an answer to Mr. Cafasso’s questions.
There has been no attempt on the part of the AG’s office to determine whether so-called Saturday Night Specials are disproportionately represented in crime, that is, to compare the numbers manufactured with the numbers that end up being used in crime. Knowing that the ATF chooses which guns to trace, they can therefore skew the statistics by choosing to trace only “Saturday Night Specials.” There is also no attempt to figure out how these guns are getting into the black market, that is, how to prevent their unlawful use. Nor is there an attempt to weigh how these guns might be used lawfully with how these guns are used in crimes.
One of the only pieces of data that has shown up in our investigation is the production figures from certain companies, which are unfortunately unrelated to the crime and safety efforts purported to be underway. It appears that even though this data is factually unrelated to the issues at hand, Mr. Weber appears to be stretching the only data available to him to fit his purpose.
In June 1997, Glenn Kaplan sent a memo to George Weber regarding the 1995 handgun production figures that had just been released by the ATF. In the memo Mr. Kaplan divided the production figures into three categories: Ring of Fire, Gun Valley and Whole Industry. The records reflected that the 1993 production figures for the so-called “Ring of Fire” companies were less than900,000 for 1993, 892,000 to be precise. But in 1995, two years later, the production had dropped substantially, to 233,000. Those numbers represented a 73% drop in production. If these numbers actually had any relevance to the issues of safety and crime, then the Attorney General’s office should have been able to produce corresponding data showing a drop in crime and accidents by 73%.
Even though the Attorney General’s own staff knew the allegedproblem did not exist and that the fictitious correlation between handgun manufacturing and public safety hazards could no longer be supported, the regulations were still put forth. What a public relations ploy, with crime and accidents steadily declining they could claim the drop was due to the regulations.
We have also examined some drafts of Attorney General Harshbarger’s initial speech, delivered in July 1996, announcing the regulations. A careful look at the text of the speech shows the shell game continued.
It appears that part of the shell game was to lull the media and the public into believing only a few guns would be targeted. As usual, the sound bite sounds plausible and even reasonable to some, but once questions are raised about the issue, the veil of deception is lifted. Regardless of how it sounded, the authority granted to the Attorney General to regulate business practices does not grant him any special powers to regulate product manufacture, or violent crime.
The authority to regulate product manufacture, in general, is granted to the Federal Consumer Product Safety Commission and covers “unfair and deceptive business practices”, not perceived accident prevention and crime reduction. In general, our state expects rules regarding criminal justice to come from the Executive Office of Public Safety or originate from the legislature, not the Attorney General’s office. The Attorney General’s position is that of the chief prosecutor of our state. Specifically that he prosecutes the laws created by our legislative process, not those made by his thirst for political attention.
Catch phrases such as “tamper proof serial numbers” might lead someone to believe that the Attorney General was not aware that federal regulations already require serial numbers on guns, or that it was already illegal under state and federal law to remove them.
“Equipped with childproofing features” is another unique catch phrase. Even though the Attorney General had already announced the regulations, the compliance requirements were not yet spelled out. The draft speech said:
The term “might include” once again demonstrates the Attorney General’s lack of knowledge of the subject and the reasons for the industry’s inability to ready themselves for compliance. The regulations, as proposed, would have required that all handguns sold have (1) a safety mechanism such as a trigger lock, or solenoid or trigger handle locks (2) a mechanism which effectively precludes a child under age six from operating the weapon and (3) a load indicator device.
The final paragraph of the proposed speech is seemingly and specifically designed as a cover, aimed at misinforming the public. With such a presentation, the Attorney General presents the citizens with a facade of mutual cooperation and benefit, neither of which actually took place because of his unwillingness to answer questions and work together with industry.
Yet just a few months after the final draft of the regulations, the American Shooting Sports Council filed suit against the Attorney General. Their Executive Director, Richard Feldman, stated:
SAFETY & CRIME WERE NEVER THE ISSUE
As of the summer of 1996, the regulations had been announced, but not yet published in The Massachusetts Register. With the hearing scheduled for November, on August 14, Ed Cafasso wrote to George Weber and Tom Green:
But as has been already demonstrated in this report, the data on these guns is not available. In another memo from Glen Kaplan to George Weber, Mr. Kaplan stated:
What is significant about this memo is that once again, the alleged purpose of the regulations is only to banspecific brands, not improve the quality of manufacturing or decrease accident rates. The intent to ban just a few guns is confirmed by the draft speech, which states that:
However, the current effect of the regulations has been much broader, as many precision quality gun manufacturers are unable to sell their product to properly licensed citizens in the Commonwealth and neither the past nor present Attorney General has ever attempted to change the regulations. Literally hundreds of models are not eligible for private sale in Massachusetts at this time, including those used everyday by law enforcement and military personnel.
This raises some disturbing questions. Either the Attorney General’s staff were incapable of drafting a regulation that effectively accomplished the advertised objective or their target was indeed much wider, a first of its kind handgun ban that successfully avoided the legislative process.
Further proof that the ban is wide of the mark is contained in a November 15, memo from Glenn Kaplan to George Weber:
So we have in writing, the Attorney General’s staff stating their goal is to eliminatecertain cheaply made guns, and further that the materials test will accomplish that goal. So why were the extra modifications the loaded chamber indicator and the magazine disconnect required? Simply put, these requirements can only have been put in place to create the illusion of scientific solutions and to ensure that most of the existing (including precision grade) firearms could not be sold.
With the information provided to us, or the lack thereof, it is evident the intent of the Attorney General was to take the matter out of the hands of the professionals, the people, and the legislature and simply ban handguns through a regulatory fiat.
As preparations for the hearings began, the scramble for data continued. Frantic hand scribbled memos appear as part of the official records, now, with long lists of people to call. Several drafts of the hearing schedule appear, packed with victims of crime. The scramble for hard data to back up the facts seems to be reaching a fevered pitch. Even as the Attorney General was boasting about how he was leading the nation in a solution for handgun violence and safety, his staff was struggling to try and figure out if the alleged guns to be banned were a problem in Massachusetts.
On September 19, 1996, Robert Sikellis, Chief of the Narcotics and Special Investigations Division submitted a report to George Weber, Chief of the Consumer Protection Division. The report states, in pertinent part,
“These statistics cover weapons related cases handled by the Division from July 1, 1995 to present. As we discussed, I am including all cases handled by the Division where a weapon was involved, not just a situation where the defendant is charged with buying or selling a weapon. ”
“During that time period, the Division disposed of 12 weapons related cases, of these, 7 were armed robberies (6 involving the same group of defendants). The remaining 5 cases were for unlawful possession/sale of firearm involving, in total 7 weapons. None to my knowledge were Saturday Night specials.”
“The Division presently has pending six separate weapons cases. Of these, all but one involved unlawful possession/sale of firearms. The remaining case is an assault with intent to murder. Again, none of the weapons, to my knowledge, are Saturday Night Specials.”
“Most of the unlawful possession/sale cases mentioned above are cases referred to us by the ATF. In addition, our State Police Unit has, over the years, seized many weapons. I have attached and (sic) inventory list of those weapons. I am told by Lt. Palombo of our State Police Unit who has reviewed the list that none of the weapons qualify as Saturday Night Specials.”
But Glenn Kaplan didn’t take no for an answer. He wrote to George Weber and others regarding the memo. Here is how Mr. Kaplan interpreted Mr. Sikellis’ memo:
Why was there a discrepancy between “no guns” and “4 definite and 3 possible”? A careful review of the list shows a lot of misspellings, and no pattern of “Saturday Night Specials.” Cross referencing the list of targeted manufacturers Mr. Kaplan himself generated a month prior, there are only three guns out of 57 – on this list (made by Davis Industries). It is clear now that the Attorney General’s office was redefining and stretching the supporting data to meet their personal agenda.
Perhaps the blatant arrogance of the staff in proceeding to regulate a non-existent problem and one for which they had no data – is best demonstrated in a memo on October 17, 1996, one month before the public hearings. Glenn Kaplan writes to George Weber:
Mr. Kaplan goes on to suggest that the Attorney General hire HP White Laboratories to prepare a report for $2000, and to hire Whit Collins to fly out and spend a few days doing research and responding to any “false or misleading statements” for approximately $6000 in costs.
Once again the staff is proving that there is no strong factual basis to the advertised need for the regulations.
After the public hearing, there is a flurry of activity required under the Administrative Procedures Act. The number of memos in the files drops off, and the pace slackens. In fact, the final version of the regulations would not be made public until June of 1997, over 7 months later.
Four months after the public hearing, the staff is still trying to justify a ban on guns. The records show that Glenn Kaplan sent a memo to George Weber to ask for money to conduct tests.
THE PROBLEMS WITH THE REGULATIONS
In this section we will try to explain a few of the specific reasons why the regulations are so difficult to understand and the facts that lead to their having such a harsh effect. Our focus will be on the practical, that is the aspects of the regulations that are confusing and unworkable. It is our contention that the present Attorney General and his staff knew, were advised, and should have known of these problems, and it is only politics, pride or perhaps the true purpose that prevents correction of these many problems.
Here are just a few of the problems in implementation of the regulations:
It is worth noting that if a gun is manufactured, there is most likely a competition for which it is used. That is, every kind of gun could be conceived of as a target gun, as there are competitions for accuracy involving .45 caliber guns, as well as .22 caliber guns. In addition, many beginning pistol competitors start out with less expensive .22’s, and proceed to more conventional target style pistols as they acquire expertise and confidence. The exception for target pistols is impracticably not aimed at their intended use, but at the type of guninstead.
A loaded chamber indicator is typically a hole drilled into the chamber where a cartridge sits when the gun is ready to be fired. One AG staffer suggested it was like a “clearly marked on/off switch on a child’s toy”, but that is a completely inaccurate and possibly dangerous description. If one were to review the physical process by which a primer is ignited, powder is burned, and the resultant gases drive the projectile, a more accurate analogy would be to compare a loaded chamber indicator to a hole drilled into a piston’s chamber in an internal combustion engine to observe that ignition is indeed taking place. While loaded chamber indicators are used in some firearms, they should be done so very cautiously, and never simply by the demands of an unqualified politician.
This puts a dealer in a bad position when the used gun to be sold is not intended to be fired. Picture a collector whose passion is derringers from the 1800’s. If the collector does not also have a machine gun license, the dealer must fire the handgun and provide the average group diameter test result. The results of which can vary greatly depending upon the ability of the shooter, type of firing vise used, and even the type and grade of ammunition used.
All of the questions raised by these regulations might indeed be explainable if the Attorney General had the desire to do so. Many dealers have called the Attorney General’s office when they had questions as to whether a specific model was compliant with the regulations. They quickly learned that such an approach is fruitless.
That office’s standard reply in 1996 was “call your lawyer.”
Unfortunately, the attitude has not changed with the current administration. In the spring of 2001, the aide to one state senator, calling to ask what one portion of the regulations meant, was also told to “consult a lawyer.” As it turns out, the aide is a lawyer.
We are not aware of any other agency of government telling a citizen who seeks to comply with the Commonwealth’s regulations to “call their lawyer” for clarification of the law. Regardless of how the reader feels about gun control, the Attorney General’s office should be roundly condemned for their rude and abusive treatment of both the public and the legislature.
Proof of the staff’s unwillingness to be helpful is given by a August 2001 letter from Si H. Bloom, General Counsel to Taurus International Manufacturing:
It certainly is a trap. In the absence of any official “list” of approved guns, dealers often hesitate to sell a gun because they can’t afford the fine or the cost of defending themselves and proving their innocence. As one gun owner recently complained to GOAL:
A FAILURE BY ANY STANDARD
At the time of this report it is has been nearly two years since 940 CMR 16.00 was allowed to stand by the courts, and the current state of affairs is as follows:
The regulations were designed according to their press release – to impact the sale of “cheap poorly made handguns comprised of inferior materials.” Yet, because of the Attorney General’s refusal to work with the industry, the regulations are instead keeping out of the Commonwealth, high quality firearms used by law enforcement officers, members of the military reserve, sportsmen and even Olympic athletes. The irony is that while Massachusetts citizens are kept from purchasing these high quality handguns, criminals are seemingly still finding ways to obtain their choices.
Neither the past nor present Attorney General has seen fit to narrow the scope of the regulations to more clearly reach the intended target. In fact, their refusal to work with the industry has only worked to reinforce the public’s and industry’s mistrust of the system and belief that the regulations were only created as a backdoor ban on handguns.
One of the Attorney General’s initial press releases outlines that the intent of the regulations was the prohibition of the sale of so-called “Saturday Night Specials.” It is further clear, from the continued text, that the regulations were aimed specifically at certain manufacturers:
One of the things that is painfully obvious about the regulations is that they closely resemble, what is called a “bill of attainder”. If the intent of a law or regulation is to target specific manufacturers, the law or regulation is not any less unethical if the “bill of attainder” does not name them by proper name.
Ethical questions about bills of attainder aside, the naming of the specific targeted guns is also very troubling. It would take very little effort for the present Attorney General’s staff to discover that sales of many high quality firearms such as Sturm Ruger, Glock, Sig, Beretta, Kimber, Freedom Arms, Thompson/Center and more are also being prohibited.
Now that the record clearly shows that regulations have missed their advertised target, why doesn’t the Attorney General fix them?
The silence is deafening.
Though hampered by the necessity of wading through so much irrelevant material (provided to us at an extensive cost), we have uncovered no substantial evidence that supports the creation and implementation of these regulations. This report shows:
These regulations have not helped, but actually harmed consumers. They have had no positive effect on reducing violent crime, which is actually increasing at an alarming rate since the regulations have taken affect. They have had no favorable impact on handgun accidents since accidents were and have been dropping steadily nationwide without the regulations. Finally, from our investigation, there can be no other determination than the regulations must be condemned by their own history of creation, their poor design and their politically motivated implementation.
With all of the prior arguments set aside, the fact remains that the regulations are in place and the industry is expected to follow them. What industry will be the next victim of an agency out of control?
Massachusetts Chapter 66, Section 10 requires that a government agency respond within ten days. The Attorney General took more than four months to respond to the April, 2000 letter. Alas, the government agency responsible for punishing abuses of the Freedom of Information act is you guessed it – The Attorney General.
The statute allows a government agency to charge “reasonable costs” for preparation of the material.
GOAL was informed that certain documents were withheld citing MGL Chapter 4, Section 7, Twenty-sixth.
The GOAL staff was only allowed to review copies of the actual documents.
In one instance, the person assigned to oversee the process refused to give their name, and alluded to the fact that a memo had encouraged her not to do so.
At this time national gun control groups were petitioning the Federal Trade Commission to restrict firearms advertising as being “false and deceptive.”
For many years, GOAL has filed legislation that would require the state to track whether or not firearms crimes are committed by licensed gun owners. To date, this legislation has not passed. On a national level, it is estimated (but not proven) that 99% of gun owners never commit crimes. In testimony before the legislature’s Joint Committee on Public Safety, the director of the State’s Firearms Records Bureau once testified that it was estimated that less than 1ƒ2 of 1% of the state’s licensed gun owners ever come into contact with the law in a negative way.
Ironically, a careful review of the speeches by those present indicates that most believed the best way to combat youth violence was through intervention: “providing our youth with programs to stimulate self esteem, keep them busy and out of gangs.” There is nothing in this approach which conflicts in any way with gun ownership.
mens rea: is defined as a “guilty mind; a guilty or wrongful purpose; a criminal intent
Attorney General Harshbarger announced the regulations that summer, long before the legislative session was over for the year. He obviously did not wait for the legislature “to fail to act.”
In December of 1996, Roy Innis of the Congress of Racial Equality wrote the Attorney General to point out the term Saturday Night Special is racist in origin. From that time, the use of the term virtually disappears from the staff’s vocabulary. This report will use the term only when quoting text.
For example, S.980 (1992), An Act Prohibiting the Sale or Resale of Certain Handguns, S.1004 (1990), An Act Restricting the Sale and Distribution of Snub-Nosed Handguns and H.2546 (1990), An Act Restricting the Sale and Distribution of Snub-Nosed Handguns.
National Association of Attorneys General
A ban on semi-automatic rifles and shotguns, called “assault weapons” by those seeking to ban them, did not pass until two years later.
The end of this email was missing from the records.