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Old July 22, 1999, 07:21 AM   #1
abruzzi
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July 22, 1999


Are Gun Laws, and Agency That Enforces Them, Equal to the Task?

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Issue in Depth: America Under the Gun
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By FOX BUTTERFIELD

ALTIMORE -- It was another routine transaction in the deadly business of how criminals get their guns.

In March 1998, a stranger paid 21-year-old Tia Branch $200, drove her to the Baltimore Gunsmith store near her housing project and showed her a $700 semiautomatic pistol he wanted. Outside the store, he gave her the money for the gun, and she went back in and bought it. As a convicted felon, he was barred by Federal law from buying a gun.
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GOING AFTER GUNS
First of two articles.
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The sales clerk did not question the young woman, although law-enforcement officials say the clerk should have known from the couple's behavior that it was an illegal straw purchase. Baltimore Gunsmith has made so many similar sales, they say, that the store is responsible for selling 20 percent of the guns used in crimes that the Baltimore police have traced in the last nine years.

Police officers, Federal agents and prosecutors have tried numerous times, using existing gun laws, to shut the place down since 1991. Despite these efforts, it still remains open.

As Congress debates gun control, the gun industry and its supporters often say that the United States has enough gun laws already, that what is lacking is enforcement. But a review of cases like the Baltimore Gunsmith and of the agency charged with enforcing Federal gun laws, the Bureau of Alcohol, Tobacco and Firearms, reveals a much more complicated situation.

The bureau, an arm of the Treasury Department, was created with limited power, has existed under constant threat of attack by the National Rifle Association, has been kept short-staffed and has to enforce laws often written to make prosecutions difficult.

An examination of the bureau also shows a major distinction in its approach to the job. Historically, it has arrested a sizable number of criminals who use guns in robberies or drug sales, particularly career criminals with three or more convictions. These are considered safe cases that do not arouse N.R.A. opposition.

Until recently, the bureau has been less aggressive in what is now being recognized as a critical part of gun control: going after illegal gun traffickers and the small number of corrupt dealers, among the 104,855 federally licensed dealers, who supply guns to criminals and juveniles.

While half of all crime guns traced by the A.T.F. in the past two years were linked to just 389 dealers, only 42 dealers were recommended for prosecution last year, and only 19 had their licenses revoked.

"There is not a whole lot of vigor in gun enforcement," said Julius Wachtel, who retired last year after 23 years as a firearms agent. When it comes to investigating dealers, traffickers or gun shows, he said, the agents have a saying: "No cases, no waves. Little cases, little waves. Big cases, big waves. All those years of being hammered by Congress have had a chilling effect."

In an interview, John W. McGaw, the director of the A.T.F., acknowledged: "I virtually never use the term 'gun control' because that would make us anti-gun. Everything we touch is unpopular and controversial, so we have to be very careful to do what Congress has decided we should and be neutral regulators, not take sides in the gun debate."

Under Mr. McGaw, a former director of the Secret Service who became director of the A.T.F. in 1993 after the raid on the Branch Davidian compound near Waco, Tex., the number of gun trafficking cases recommended for prosecution rose to 788 in 1998, up from 533 in 1994.

In keeping with what Mr. McGaw sees as his Congressional mandate, he has formulated a policy of treating gun dealers as "partners," members of the legitimate firearms industry whom agents often rely on for tips on straw purchases or gun traffickers.

The bureau's small size -- its 1,631 agents are only 9 more than in 1973 -- means it sometimes must forgo investigations, prosecutors say.

And the agents must spend much of their time investigating bombings and arsons, as well as enforcing the laws on alcohol and collecting tobacco taxes.

By comparison, the number of agents in the Drug Enforcement Administration has grown to 4,261 today, from 1,370 in 1973.

"This shows that Congress has never decided it is serious about going after gun trafficking the way it is about the war on drugs," said David Yassky, an assistant professor at Brooklyn Law School and a Democratic counsel to the House Judiciary Committee.

"With drugs, we've realized we've got to go all the way up the chain," Mr. Yassky said. "If all you do is arrest the crack addict, we won't get anywhere. But with guns, we only arrest the end user, the shooter."

Federal gun laws underscore the difference in priority between drugs, which are illegal to sell, possess and use, and guns, which start out as legal products, and illustrate the difficulty the bureau faces in pursuing gun control.

A dealer who sells 1,000 or more guns to criminals might get only six months in jail, but for drug dealers there are stiff mandatory minimum prison sentences of up to 25 years, even for selling small quantities.

Undercover purchases are a common tactic of drug agents, but under appellate courts' rulings, firearms agents may not pose as felons buying guns. Agents must use an actual convicted felon in undercover operations, which makes prosecution more difficult because juries are reluctant to believe convicted felons.

In addition, the Firearms Owners Protection Act of 1986, a law championed by the N.R.A. and sponsored by Senator James A. McClure, an Idaho Republican who has retired, and by Representative Harold L. Volkmer, a Missouri Democrat who lost his seat in 1996, raised barriers to prosecutions.

Mr. Volkmer, now living in Hannibal, Mo., said the law was still necessary to rein in what he sees as an overzealous Government agency. In the minds of firearms agents, Mr. Volkmer said: "It's almost like, if you are a gun owner or dealer, you're weird or not legitimate. They believe the only way to resolve violence is to take away our guns."

Mr. McClure did not return phone calls to his office or home seeking comment.

The Origins: From Moonshine To Gun Control

The law limited A.T.F. agents to only one inspection of a dealer a year, reduced record-keeping violations by a dealer from a felony to a misdemeanor -- a disincentive for Federal prosecutors in cases where a dealer has forged or destroyed his records to hide evidence -- and required prosecutors to prove that dealers who sold guns to criminals or straw purchasers did so "knowingly and willfully," a nearly insurmountable hurdle, lawyers say.

It also prohibited the A.T.F. from establishing any national system of gun registration, which makes tracing the origin of guns used in crimes much more difficult.

"The gun laws weren't very strong to start with," said William J. Vizzard, a retired firearms agent who is now a professor of criminal justice at California State University in Sacramento. "But after McClure-Volkmer they were Swiss cheese."

The firearms bureau's difficulties lie partly in its origins. It was created with little planning when Congress, after the assassinations of the Rev. Dr. Martin Luther King Jr. in April 1968 and of Senator Robert F. Kennedy two months later, hastily passed the Gun Control Act of 1968.

That law required that everybody dealing in firearms be licensed by the Federal Government, and it prohibited convicted felons, illegal immigrants and drug addicts from buying guns. The law gave the Government no power to regulate the manufacture, design or marketing of guns. Indeed, Representative John D. Dingell, a Michigan Democrat who was a member of the N.R.A. board of directors, had the gun industry exempted from the new Consumer Product Safety Commission.

The agency charged with supervising the 1968 law was the Alcohol and Tobacco Tax Division of the Treasury Department. Until 1968, its agents were mainly revenuers, famous in film lore for tracking down whisky stills, largely in the Southeast. Most of the agents themselves were Southerners who grew up with guns and were likely to be members of the N.R.A.; they had little interest in the new notion of gun control.

Mr. Wachtel, who joined the agency in Phoenix in 1972, the same year it was renamed the Bureau of Alcohol, Tobacco and Firearms, recalled that his first training officer "basically knew nothing about firearms trafficking."

But soon Mr. Wachtel and other new agents began making some alarming discoveries.

"We walked into gun shows and found you could buy a machine gun, which was illegal, without even having to give your name," Mr. Wachtel said. They also stumbled on dealers "who were putting guns on the streets without paper," he said, selling to criminals without keeping the required records. And Mr. Wachtel said they found that traffickers would buy guns in states with lax gun control laws, like Georgia or South Carolina, and then drive them north for resale to criminals in Washington or New York.

In short, by the late 1970's the new agents had an understanding of how guns moved quickly from manufacturers, wholesalers and dealers to criminals. But as they began to make criminal cases, gun industry supporters in Congress held angry hearings into alleged abuses of law-abiding gun owners and dealers.

In 1981, President Ronald Reagan, at the urging of the N.R.A., announced the elimination of the A.T.F., and many agents were given layoff notices, until his Administration later reconsidered the action.

And in one of the most famous attacks on the A.T.F., Congressman Dingell, who was influential in the defeat of a gun-control bill in the House on June 18, called firearms agents "a jackbooted group of fascists who are perhaps as large a danger to American society as I could pick today."

In 1979, to protect itself against criticism of this kind, the A.T.F. ordered that any agent who wanted to investigate a gun dealer had to get permission from headquarters in Washington. This policy lasted until the Clinton Administration. Mr. Vizzard remembered "the chilling effect" when he received a reprimand because he was investigating three corrupt dealers concurrently.

David Kennedy, a senior researcher at the John F. Kennedy School of Government at Harvard University and director of the Boston Gun Project, the most successful citywide program to stop gun trafficking, said of the firearms agents: "These people are heroes, and the only fair thing to say is that they have been systematically kept away from doing a vitally important job."

The A.T.F. operates out of an unremarkable, granite-faced eight-story building in Washington. By mandate of Congress, 25 percent of the bureau's time must be spent on explosives, a priority that gained new urgency after the bombing of the Federal Building in Oklahoma City in 1995. The bombing was directed against the A.T.F. office there in retaliation for the bureau's role in the Branch Davidian raid near Waco.

After the Waco incident, Mr. McGaw, who was popular with Republicans, was appointed director of the A.T.F. He has emphasized training and professionalism as a way to re-create an agency that had its start in moonshine and to give it more of a buttoned-down image like that of the Secret Service or the Federal Bureau of Investigation.

Mr. McGaw's most important initiative has been to quadruple the number of crime guns the A.T.F. traces back to manufacturers and dealers, which has led to a much clearer understanding of the role of illegal dealers and traffickers in helping criminals get their guns. But to make the program more palatable to the N.R.A., which always worries about the Government's keeping information on guns, it has officially been described as an effort to stop the flow of guns to juveniles.

Mr. McGaw is not one to lead the call for new gun laws, and he makes no apologies for treating gun dealers as partners. Gun trafficking is a victimless crime, he says, where no one calls up to report an illegal sale, so the bureau depends on having good relations with dealers who can tip it off about suspicious activity.

Mr. McGaw said he was surprised when he took over the A.T.F. and found that all its functions "are negatives, are controversial." Even when it investigates white supremacist groups or the bombing of an abortion clinic, the bureau has drawn criticism.

So to avoid attacks on the bureau's budget, he tries to steer a course down the middle. "For our agents, some of the laws may be frustrations," he said, but he added that these impediments "tell us what Congress wants us to do."

The Problem: Quirks in the Law Help the Dealer

Law-enforcement officials first became interested in Baltimore Gunsmith in 1991 when Detective Ed Bochniak of the Baltimore Police Department went to the home of a drug dealer, Anthony Jones, 18, to investigate the fatal shooting of a 13-year-old girl in his bedroom.

In the Jones home, the police found receipts showing that Mr. Jones's cousin, Sheila Kelly, had bought eight guns for $5,274 from Baltimore Gunsmith, and Ms. Kelly later confessed that Mr. Jones had paid her to buy them. The guns included a .40-caliber Glock semiautomatic pistol, two 9-millimeter Glock semiautomatic pistols, a 9-millimeter Beretta semiautomatic pistol with a laser sight and a Cobray Streetsweeper shotgun. One of the pistols killed the 13-year-old; another had been used to shoot two drug dealers.

Detective Bochniak turned over the evidence to the A.T.F. office in Baltimore. But when firearms agents recommended prosecution to the United States Attorney's office in Baltimore, they were turned down.

A spokesman for the United States Attorney said he could not discuss the case because no prosecution had been made.

But agents involved in the investigation said they were told the prosecutor feared that the case would be nearly impossible to prove, given the quirks in the gun laws. Under the McClure-Volkmer standard, the agents would have to show that the owner, Anthony A. DiMartino, had sold the eight guns to Ms. Kelly knowing that she was a straw purchaser.

In other words, they would have to prove his state of mind.

That would take valuable extra time, the agents were told, and even if by chance Mr. DiMartino was found guilty, the prison sentence would be only a few months, not the kind of high-profile case that ambitious Federal prosecutors usually seek.

With no trial, Baltimore Gunsmith kept selling hundreds of guns that turned up in crimes in the city, the police found, and the A.T.F.'s agents kept trying to catch Mr. DiMartino. In 1996 they mounted an undercover operation. They could not take the easy path, posing as felons, since Federal courts had ruled that the buyer must be an actual felon.

Instead, an agent posing as a waitress and equipped with a hidden tape recorder bought a .22-caliber Beretta pistol at the store, saying she was buying it for a convicted murderer whom Mr. DiMartino knew. Again, the United States Attorney's office declined to prosecute. Even if Mr. DiMartino was convicted, which would be difficult, he might simply transfer his firearms license to his son, who worked in the store, agents say the prosecutor's office told them.

Mr. DiMartino's license was up for renewal at the time. But Mike Campbell, a spokesman for the A.T.F. in Baltimore, said Federal law required the bureau to hold off on any revocation and automatically renew a license during a criminal investigation to insure citizens' rights.

Last March the agency scheduled a revocation hearing, but it was postponed when a firearms agent who had been part of the investigation could not attend because he had been transferred to another city. No new date has been set.

The lawyer for Baltimore Gunsmith, Richard Karceski, said his client had done nothing wrong.

The Blame: Finding Fault With Congress

James Baker, the chief lobbyist for the N.R.A., said that dealers who violate the law "ought to be prosecuted," but that the McClure-Volkmer standards "were put in to protect law-abiding people from well-documented abuses by A.T.F."

"We don't think forcing A.T.F. and the Justice Department to prove a case should prevent effective law enforcement," he said.

But Detective Bochniak, who is now assigned to a special new gun squad, said, "From the point of view of local law enforcement, all this is very frustrating. Whose fault is it? Should people sue the gun dealer, or the A.T.F. that failed to shut the store down?"

The fault, he said, is "in the law, and all the judges and politicians that don't take guns seriously."

Sometimes the oddities of the gun laws can mar even a successful prosecution.

B&E Guns, in Cypress, Calif., is the second largest dealer in the state. Firearms agents had long been suspicious about B&E Guns, and in 1990 they got the owner's license revoked for forging records of his purchases and sales. But that did not deter the owner, Robert Komor. He simply transferred the license to his wife, Esperanza Juan-Komor, said Tom Makar, the agent who handled the investigation.

In the mid-1990's, more than 200 guns that the A.T.F. had traced to B&E Guns began showing up in murders, robberies and shootings in Southern California. Other guns traced to B&E Guns were being smuggled into Japan and Australia.

The bureau raided B&E Guns, and after its agents pored through the shop's files they found that it had illegally sold about 9,000 guns in less than two years, Mr. Makar said. It was one of the biggest such sales in the United States. The store had improperly accounted for the sale of 3,000 of the guns by listing them as having been sold to other dealers who were unaware of the transactions. There were no records at all for the remaining 6,000 guns, Mr. Makar said, even though manufacturers and wholesalers reported that they had sold the guns to B&E.

It was lucrative, agents said, because a gun with no paper trail could be sold to criminals for double the normal markup.

Despite the seriousness of the case, the United States Attorney's office in Los Angeles last year allowed the Komors' son, Zak Komor, who was the store's manager, to plead guilty to only five counts of causing a false statement to be made in B&E's record books involving just 24 guns. He was sentenced to a year in prison. No one else was prosecuted, and the store is still open.

Michael Brush, Mr. Komor's lawyer, said the A.T.F.'s claim that 9,000 guns were involved was exaggerated. The Komors' mistake, he said, was just "sloppiness in record keeping, not an attempt to put guns in the hands of criminals."

The United States Attorney's office declined to answer questions about the deal, saying the court records were under seal. But several agents familiar with the case said they believed that prosecutors had simply run up against the McClure-Volkmer law, which reduced fraudulent record-keeping by a dealer to a misdemeanor.

Mr. Vizzard, the former A.T.F. agent in Sacramento, says the problems with gun control lie in Congress. He recalled that at Senate Judiciary Committee hearings in 1995 into the deadly standoff between Government agents and white separatists at Ruby Ridge, Idaho, a number of Senators, Democrats and Republicans alike, had grilled Herb Byerly, a firearms agent, on his decision to arrest Randy Weaver, a separatist, after Mr. Weaver had sold an informer two sawed-off shotguns and offered to sell him five more.

If Mr. Weaver had sold only two sawed-off shotguns, said Senator Arlen Specter, Republican of Pennsylvania, "It is a little hard to understand how you can say to this subcommittee that this man has a profile as a gun trafficker."

Watching the hearings on television, Mr. Vizzard said he wondered if Congress took gun crimes seriously. For one thing, selling or even possessing an unregistered sawed-off shotgun is a felony. But what would the Senators have said, he wondered, if it had been a young boy selling just two vials of crack cocaine? That is punishable by years in prison.

And what would the Senators say now, after the shootings at Columbine High School in Littleton, Colo., last April? Two of the four guns the teen-age killers used -- and the ones that claimed the most victims -- were sawed-off shotguns. Would the Senators still say, Mr. Vizzard wondered, "only two sawed-off shotguns?"

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Old July 22, 1999, 06:14 PM   #2
Futo Inu
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I wonder if this author accidentally hit a pedestrian with his car, and was charged with murder, if he would consider it an "oddity of the murder laws" that the prosecutor would have to prove the mens rea (evil intent)?
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Old July 22, 1999, 06:59 PM   #3
James K
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That article is typical self-promotion by BATF and articles like it appear in the BATF's cheering section in the press every time their budget comes up for review in Congress.

It is a typical, whining, bureaucratic exercise designed to get more money and more power from Congress. Every agency does it, it is just that BATF can always count on help from the anti-gun press.

Dont forget that the real cause of the Waco disaster was the bureau's desire to "show off" its capabilities for the new administration, after its director was told by the transition team that BATF had to show a "can do" attitude if they wanted more money and a bigger role in the gun control plans of the Clinton administration.

Basically, Waco was not a law enforcement exercise. Its goal was not to "get" law breakers, but to "get" an expanded role, with more personnel and more GS-13s, 14s, 15s, and SES types to supervise them. Those people died because BATF bureaucrats wanted promotions.

Jim
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