JRH6856
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but he could have pulled the pin from a distance with a string...
Why the fear of the BATF?
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but he could have pulled the pin from a distance with a string...
You might want to read your own citation as much of what you've claimed about the case is false, as is proven by the court record which you yourself have cited. Maybe you're not aware, but what judges and juries do is determine the facts to render a judgement.
The judge determined that what Ballew possessed were in fact "destructive devices" as defined by the US Code.
From your own citation:
"Plaintiff argues that Agent Davis should have undertaken a
more extensive and careful investigation before seeking a search
warrant from the Magistrate. The simple answer to this contention
is that Davis' belief stated in the affidavit that there were
unregistered hand grenades in Ballew's apartment proved to be
entirely accurate. This Court finds that several of the grenades
seized by the federal agents on June 7, 1971 in Ballew's apartment,
in combination with components likewise seized, were firearms as
defined in the National Firearms Act and had not been registered as
required by law.
Plaintiff contends that the items seized were harmless when
found, were neither designed nor intended to be used as firearms
and therefore were not in violation of federal law. The evidence
in this case does not support such contention.
26 U.S.C. section 5861(d) makes it unlawful for any person "to
* * * possess a firearm which is not registered to him in the
National Firearms Registration and Transfer Record; * * *."
section 5845(a)(8) defines firearm as "a destructive device." The
term "destructive device" is further defined as follows in section
5845(f):
(f) Destructive device.-The term "destructive device"
means (1) any explosive, incendiary, or poison gas (A) bomb,
(B) grenade, (C) rocket having a propellant charge of more
than four ounces, (D) missile having an explosive or
incendiary charge of more than one-quarter ounce, (E) mine, or
(F) similar device; (2) any type of weapon by whatever name
known which will, or which may be readily converted to, expel
a projectile by the action of an explosive or other
propellant, the barrel or barrels of which have a bore of more
than one-half inch in diameter, except a shotgun or shotgun
shell which the Secretary or his delegate finds is generally
recognized as particularly suitable for sporting purposes; and
(3) any combination of parts either designed or intended for
use in converting any device into a destructive device as de-
fined in subparagraphs (1) and (2) and from which a
destructive device may be readily assembled. The term
"destructive device" shall not include any device which is
neither designed nor redesigned for use as a weapon; any
device, although originally designed for use as a weapon,
which is redesigned for use as a signaling, pyrotechnic, line
throwing, safety, or similar device; surplus ordinance sold,
loaned, or given by the Secretary of the Army pursuant to the
provisions of section 4684(2), 4685, or 4686 of title 10 of
the United States Code; or any other device which the
Secretary of the Treasury or his delegate finds is not likely
to be used as a weapon, or is an antique or is a rifle which
the owner intends to use solely for sporting purposes.
In United States v. Freed, 401 U.S. 601, 609, 91 S.Ct. 1112,
1118, 28 L.Ed.2d 356 (1971), Mr. Justice Douglas observed that the
National Firearms Act "is a regulatory measure in the interest of
public safety, which may well be premised on the theory that one
would hardly be surprised to learn that possession of hand grenades
is not an innocent act." More recently, the United States Court of
Appeals for the Fourth Circuit has had occasion to construe section
6845(f) in United States v. Morningstar, 456 P. 2d 278 (4th Cir.
1972). At page 280 of that opinion, the Court said the following:
Section 5845(f), subparagraph (1) deals with explosive and
incendiary devices which have no business or industrial
utility. They are covered regardless of their intended use.
Subparagraph (2) is inapplicable because it refers to weapons.
Subparagraph (3) deals with two types of materials "from
which a destructive device may be readily assembled.". The
first type is a "combination of parts. . . designed. . . for
use in converting any device into a destructive device. . ."
[Emphasis added] such as a bomb. This type includes, for
example, the unassembled parts of a military fragmentation or
incendiary bomb. Because of their design they are proscribed
regardless of how the possessor intends to use them. If
Congress had resolved not to include commercial explosives, it
could have stopped at this point. Instead, in subparagraph
(3) it defined a second type of illegal materials as a
"combination of parts. . . intended for use in converting
any device into a destructive device. . . ." [Emphasis
added] such as a bomb. It is apparent, therefore, that
Congress provided that the use for which these materials are
intended determines whether they fall within the Act.
(Emphasis in original.)
At page 281, the Court went on to say:
On its face, the definition of a destructive device gives
fair notice to a person of ordinary intelligence that
includes any combination of parts intended to be used as a
bomb or weapon and from which a bomb or weapon can be readily
assembled. See United States v. Harriss, 347 U.S. 612, 617,
74 S.Ct. 808, 98 L.Ed. 989 (1954).
Included among the many items seized in plaintiff's apartment
on June 7, 1971 were a practice fragmentation hand grenade, a
plastic, baseball type grenade, and a smoke or gas grenade
canister. (Defendant's Exhibits Nos. 6, 7 and 8). Each of these
items was equipped with a grenade fuse assembly. Also recovered in
proximity to the grenades were several cans of black powder and a
number of cans of smokeless powder suitable for use in rifles,
pistols and shotguns. (Defendant's Exhibits Nos. 10-15,
inclusive). From the testimony of the witness Scroggie (called as
an expert by the government) and from an examination of the
exhibits themselves, including photographs of various tests
conducted by the government, this Court finds that these three
grenades together with the powder seized were in combination both
designed and intended to be used as destructive devices. Although
these grenades could not have been exploded as found, they could
have been fully activated merely by adding either the black powder
or the smokeless powder likewise seized in plaintiff's apartment on
June 7, 1971. [footnote 15] Unassembled parts of a hand grenade,
like parts of a military fragmentation bomb, would be a combination
of parts "designed" for use in converting any device into a de-
structive device within the meaning of section 5845(f)(3). See
United States v. Morningstar, supra, 456 F.2d at 280. In United
States v. Shafer, 445 F.2d 579 (7th Cir. 1971), cert. den. 404 U.S.
986, 92 S.Ct. 448, 30 L.Ed.2d 370 (1971), the Court held that
grenade shells, fuses and powder in combination constituted a "de-
structive device" under section 5846(f), even though unassembled.
In United States v. Kiliyan, 456 F.2d 555 (8th Cir. 1972), a
training grenade, similar to Defendant's Exhibit No. 6 in this
case, was held to be in violation of this statute.
Plaintiff relies on that part of section 5845(f) which
provides that "the term 'destructive device' shall not include any
device which is neither designed nor redesigned for use as a
weapon, * * *." It is argued that possession of ordinary household
articles would result in a violation of the law if the government's
interpretation of the statute is accepted here. Such argument was
specifically rejected in United States v. Davis, 313 F.Supp. 710,
714 (D.Conn. 1970), in which the Court found that cloth, gasoline
and bottles which could be used to construct a Molotov cocktail
were a combination of parts in violation of section 5845(f). The
Court concluded that what Congress meant by the term "combination"
was "an association of the components of a destructive device, at
the same time and place, capable of being converted into a
destructive device-not an actual union of parts in an assembled
device." See also United States v. Ross, 458 F.2d 1144, 1145 (5th
Cir. 1972).
Moreover, the grenade shells themselves in this case had been
"redesigned" for use as a weapon. Thus, the component parts seized
here would also fall within the second type of illegal materials
proscribed by section 5845(f)(3), as the evidence shows that in
combination they were "intended" to be converted into destructive
devices such as active hand grenades. [footnote 16] Plaintiff was
a collector of firearms and ammunition of various types and was in
possession of a large quantity of weapons, devices and component
parts at the time of the raid on June 7, 1971. Plaintiff spent
much of his spare time disassembling, cleaning and re-assembling
his weapons and firing them at practice ranges. He had inserted
pistol primers in the fuse assemblies of the smoke grenade
(Defendant's Exhibit No. 8) and the practice hand grenade
(Defendant's Exhibit No. 6), had placed paper caps in the fuse
assembly of the plastic grenade (Defendant's Exhibit No. 7) and had
done other work on these devices designed to reactivate them. By
placing live pistol primers in two of these grenades, plaintiff
clearly disclosed his intention to make them explosive. Plaintiff
argues that the smoke grenade contained no delay element and
therefore could not in fact be used as a true hand grenade.
Although as reactivated the smoke grenade could not be thrown with-
out causing injury to the thrower, it was quite capable of being
used with other items in the apartment as a booby trap and as such
constituted a destructive device within the meaning of section
5845(f) (3)."
However, even though what the officers/agents recovered were in fact destructive devices as defined in the law, that is irrelevant to whether or not they had established probable cause for the search. Again, your own citation shows they clearly had established probable cause for the search.
Further, your claim that the door was not a normal entry door is also false. The door the officers/agents used led directly into the living room of the apartment.
Again from your own citation:
"Shortly before 8:30 P.M. on June 7, 1971, the law enforcement
officers entered the building through a laundry room and then
proceeded by way of a flight of stairs to an interior hallway and
a door which led from the hallway into the living room of Apartment
No. 2. [footnote 8] . . .
. . . 8. Plaintiff argues that the officers did not enter through the
"front" door. Whether or not the door entered could be called the
front door, the evidence discloses; that it was one of the
principal means of gaining entrance into plaintiff's apartment.
Also, the court determined the officers/agents did properly identify themselves as law enforcement, and their announcement of the warrant could be heard at a great distance from the door.
Again, from your own citation:
"From the evidence here, this Court finds that plaintiff heard
the law enforcement officers at his door. [footnote 18] Rather
than admitting the officers and submitting to a search of his
premises, plaintiff chose to resist the lawful right of the agents
to enter his apartment. Attempts were made to barricade the door
and prevent entry by the officers. Even more imprudently,
plaintiff and Mrs. McNeil armed themselves and prepared to shoot it
out with the officers. After Agent Seals had entered the apartment
and fired the first shot, plaintiff continued to point his loaded
revolver at the other agents and officers who followed Seals into
the room. Even after the first shot, plaintiff could have avoided
injury to himself by taking cover and surrendering his weapon, or
at the very least by not pointing his revolver at the other
officers who entered the room after Agent Seals. His own negligent
actions led directly to the serious injuries he suffered.
The credible evidence in this case does not support
plaintiff's contention that he did not know that these men in his
apartment were law enforcement officers. This Court finds that
plaintiff did in fact hear the knocking and the loud announcement
that federal officers were at the door with R search warrant.
Although dressed in civilian clothes, a badge was prominently
displayed by Agent Seals who was the first law enforcement officer
to enter the apartment.
Whatever plaintiff was doing in the nude before the officers
entered his apartment, he was not, as he claims, in the bathtub
when they first knocked on his door. The evidence discloses, in
the words of one witness, that he was "bone dry" when shot. More
likely, plaintiff was not dressed when be first heard law
enforcement officers at his door and in his haste to arm himself
and try to keep them out, be did not take the time to clothe
himself."
Also, from your own citation:
"One police officer, stationed outside the building, testified
that he could hear the pounding and the command from where he was
then located."
Further, your assertion that Ballew was a military veteran is unsubstantiated, but even if true is irrelevant. Being a veteran does not change the facts. I'll point out that many veterans (and many currently serving military personnel for that matter) have committed a wide variety of crimes.
Further, is nothing in the record that indicates that anyone claimed Ballew fired first, however, that too is irrelevant. It is not necessary for a person to actually be fired upon for them to reasonably believe there is an imminent threat of death or serious bodily injury and be justified in using lethal force to stop that threat.
So the facts are:
1- The officers/agents clearly established probable cause to believe that Ballew was violating federal law, and that there was probable cause to believe the evidence was located in the apartment.
2- The officers/agents acted properly in knocking and announcing their presence and the service of the warrant, and then waiting a reasonable time for the occupants to allow them to enter and serve the warrant before attempting to force entry.
3- After the occupants (Ballew and a woman married to another man) refused to allow entry, barricaded the door, and armed themselves (the woman was also armed with a pistol), the officers attempted to force entry into the apartment.
4- Ballew pointed a cap and ball revolver at the officers/agents, and the officers/agents responded to that threat with deadly force.
Those are the facts, and those facts are why Ballew's attempt at suing the government under the Federal Tort Claims Act failed.
Next time maybe you should read your own citation and acquaint yourself with the truth, rather than cherry picking a few quotes in a lame attempt to support your false claims.
Well you see Carl N. Brown left out an important part of the court ruling, probably because it doesn't support his false claims about what was going on in the Ballew case.
Here it is for you, again from Carl N. Brown's own citation, and it goes directly to your point:
"Plaintiff argues that the smoke grenade contained no delay element and
therefore could not in fact be used as a true hand grenade.
Although as reactivated the smoke grenade could not be thrown with-
out causing injury to the thrower, it was quite capable of being
used with other items in the apartment as a booby trap and as such
constituted a destructive device within the meaning of section
5845(f) (3)."
Quite enough thread drift.
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