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United States v. Vyatskie Polyany Machine Building Plant "Molot" Vepr Rifle

February 9, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ONE (1) VYATSKIE POLYANY MACHINE BUILDING PLANT "MOLOT" VEPR RIFLE, SERIAL NUMBER 03KK7846; THIRTY (30) 7.62 X 39 MILLIMETER CALIBER RIFLE CARTRIDGES, DEFENDANTS.



The opinion of the court was delivered by: Hurley, District Judge

MEMORANDUM AND ORDER

Plaintiff United States of America ("Plaintiff" or "United States") brings this civil forfeiture action seeking a judicial determination of forfeiture of the following two defendants in rem: (1) Vyatskie Polyany Machine Building Plant "MOLOT" VEPR Rifle, Serial Number 03KK7846; and (2) Thirty (30) 7.62 x 39 Millimeter Caliber Rifle Cartridges (the "Defendants"). The United States has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons stated below, the motion is granted.

BACKGROUND

The material facts, drawn from the Complaint and Plaintiff's Local 56.1 Statement, are undisputed.*fn1

On June 1, 1977, Daniel Floyd Walker ("Walker") was acquitted by reason of mental disease or defect of the charges of Assault in the First Degree, Assault in the Second Degree, and Reckless Endangerment in the First Degree, in connection with the 1973 shooting of a Suffolk County Police Officer. (Compl. ¶ 7.) On June 30, 1977, the Honorable Joseph Jaspan, Acting Justice of the Supreme Court of the State of New York, committed Walker to the custody of the Commissioner of the Department of Mental Hygiene, pursuant to N.Y. Crim. Proc. L. § 330.10. (Id. ¶ 8 and Ex. 1.) Following a hearing conducted on June 6, 1978, Walker was discharged. (Id. ¶ 9 and Ex. 2.)

Many years later, on or about November 3, 2004, Walker completed and signed a Department of the Treasury, Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") Form 4473 to purchase Defendants from American Outdoor Sports, a federally licensed firearms dealer, located in Farmingdale, New York. (Id. ¶ 10 and Ex. 3.) Question 12(f) on that form asked: "Have you ever been adjudicated mentally defective . . . or have you ever been committed to a mental institution?" (Id. Ex. 3.) Walker responded "No." (Id.)

On November 3, 2004, American Outdoor Sports contacted the National Instant Criminal Background Check System ("NICBCS") to verify that Walker was not prohibited from possessing or receiving a firearm in violation of the federal Gun Control Act, 18 U.S.C. §§ 1921, et seq., based on any false statements on Form 4473. (Id. ¶ 13.) American Outdoor Sports received a response of "delayed" from NICBCS, indicating that there was insufficient information available at the time to determine Walker's status. (Id. ¶ 14.) NICBCS's response of "delayed" prevented Walker from acquiring the Defendants on November 3, 2004. (Id. ¶ 15.)

On or about November 9, 2004, Walker returned to American Outdoor Sports and completed Section C of ATF Form 4473, certifying that the responses he had given on November 3, 2004 were still correct and true. (Id. ¶ 18 and Ex. 3.) Having received no notification from ATF that the sale of Defendants to Walker would violate the federal Gun Control Act, American Outdoor Sports sold the Defendants to Walker.*fn2 (Id. ¶ 19.)

ATF subsequently learned that Walker was prohibited from receiving or possessing a firearm or ammunition because of his 1977 commitment following his acquittal. (Id. ¶ 20.) Accordingly, on or about November 24, 2004, ATF seized Defendants from Walker. (See Declaration of Matthew Myerson, dated July 7, 2006, ¶ 2.)

By certified letter dated February 6, 2005, the ATF notified Walker of his right to contest the seizure and forfeiture. (Id. ¶ 4 and Ex. A.) On February 22, 2005, the ATF received a claim to the Defendants from Walker, who asserted as follows:

I own the above mentioned rifle. I need the rifle for security during a time of war. The United States of America is presently engaged in a war with no for[e]seeable end; with an enemy unlike any we have ever encountered. I believe a "well armed militia" is as important and necessary today as it was during the American Revolutionary War. I am a natural born citizen of the United States of America. (Id. Ex. B.) In response to Walker's claim, the ATF referred the matter to the Office of the United States Attorney for the Eastern District of New York. (Id. ¶ 7.)

On April 20, 2005, the United States commenced the instant civil forfeiture action against the Defendants. On April 21, 2005, the Court issued a Warrant of Arrest for Articles in Rem against the Defendants. Thereafter, Walker filed a pro se Answer to the Complaint wherein he "urge[s] [the Court] not to take away [his] Constitutional right to bear arms." (Answer ¶¶ 2, 4.) On May 2, 2005, Walker filed a verified claim to the Defendants.

Presently before the Court is the motion by the United States for summary judgment, seeking judicial determination of forfeiture of the Defendants to the United States. For ...


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