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Sunday, January 9, 1994 - Page updated at 12:00 AM

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Firearms-Law Quirk Helps Robbery Suspect -- Civil War Replica Exempt

A drug-addicted Vietnam veteran was charged with robbery and a firearms violation for pressing a loaded gun against his doctor's head and demanding methadone at Seattle's Veterans Affairs Medical Center last November.

But after review, federal prosecutors realized the firearms charge against James Quentin Hafner wouldn't stand up.

The reason: Hafner's weapon was a replica of a Civil War-era revolver, a type of pistol exempted from the federal Gun Control Act of 1968.

In essence, prosecutors had to drop the charge that Hafner carried a firearm in the robbery because under federal law his weapon was not a firearm.

"I was surprised," said Joanne Oliver, Hafner's public defender. "I'd never frankly had this come up before."

The gun was certainly capable of inflicting death: FBI firearms experts found it worked and was loaded in all six chambers. But last month Hafner, a 49-year-old convicted bank robber, pleaded guilty to an amended charge of kidnapping in connection with the dramatic, two-hour standoff at the VA hospital, which ended peacefully.

He's due to be sentenced next month, but the dropped firearms charge means he stands no chance of receiving the five-year mandatory-minimum term he would have faced.

However, under sentencing guidelines, Hafner still could receive stiffer-than-normal punishment for possessing and using the old-style weapon, according to Assistant U.S. Attorney Ken Parker.

Parker noted that the definition of firearms differ depending on the particular federal statute.

"It's an exceedingly rare situation where this arises," said Parker, referring to the antique-gun exemption. He said he's encountered the phenomenon only twice in the past 15 years.

Still, the case demonstrates a loophole in federal and state firearms laws: The government is barred from invoking certain firearms statutes, among them prosecuting felons for possessing firearms, if the weapons at issue were produced before Jan. 1, 1899, or if they are replicas. The exemption evaporates if the weapons have been converted to accommodate modern ammunition.

Likewise, such primitive but still-deadly weapons are exempt from provisions of the recently passed Brady bill, including the five-day waiting period.

Law-enforcement authorities could not say why Congress carved out the exemption; possibly lawmakers were pressured by gun collectors. But authorities and gun experts agree that black-powder muzzleloading rifles and cap-and-ball revolvers are just as lethal as modern firearms. The primary drawback to the old models is they take more time to reload.

Hafner's revolver, for example, is loaded by packing black powder down each cylinder, followed by a lead ball. Finally, a percussion cap is placed on the rear end of the cylinder.

Pulling the trigger detonates the cap, which spits flame into the chamber, igniting the powder and driving the ball down the barrel. By contrast, modern cartridge-case weapons fire fixed ammunition in which the bullet, powder and cap are combined.

It's impossible to know how many 19th-century-style weapons are in circulation because there is no requirement that owners register them.

Referring to the replicas, which still are being manufactured, salesman Ed Page of Seattle's Central Gun Exchange said the "cap-and-ball craze" peaked a couple of years ago.

There's been a slight resurgence, he said, with the advent of "End of the Trail" matches involving enthusiasts who dress up in Western gear and shoot inanimate objects.

Muzzleloading hunting remains quite popular, but interest in cap-and-ball revolvers generally is limited to collectors, accounting for about 1 percent of the store's annual sales, Page said.

But he noted the popularity of such weapons is regional. They remain in vogue in the South, for example, where Civil War re-enactments are commonly played out.

Page said the pistols are priced at about "$200 on up" and that most of the replicas are Italian made. He believes most are sold through legitimate stocking gun dealers, but they are also available through mail-order catalogs.

Jon Uithol, vice president of the National Muzzleloading Rifle Association in Friendship, Ind., estimated 3 million to 5 million Americans own muzzleloading weapons. He reached this figure by adding the number of hunters who annually buy black-owder hunting licenses.

The sale of black powder, which is used to ignite the lead ball or bullet, is regulated by the federal government.

But again, an exception is carved out for quantities of less than 50 pounds when the purchase is for "sporting, recreational or cultural purposes in antique firearms or replicas."

During a recent debate on the new federal crime bill, some conservative members of Congress attempted to move the exemption date for antique weapons and their replicas forward to 1918.

The Bureau of Alcohol, Tobacco and Firearms opposed that effort

because it would have added millions of weapons to the exempt pool, including the standard military handgun from World War I.

Dan Satterberg, chief of staff for King County Prosecuting Attorney Norm Maleng, said Washington law also carves out an exemption for antique guns in certain circumstances.

"The only thing this little quirk prohibits (charging) is felon-in-possession or delivery-to-a-minor-type cases," Satterberg said.

Civil War-era guns are not the weapon of choice on the streets, he said, and to his knowledge the issue has never come up.

"They're not big in holding up 7-Elevens that we're aware of," Satterberg said.

Copyright (c) 1994 Seattle Times Company, All Rights Reserved.

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