Prosecution Is Prevention

Posted on October 17, 2000

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FEDERAL PROSECUTIONS TAKE A NOSEDIVE
Prosecutions of federal Firearms Laws
CASES REPORTED, EXECUTIVE OFFICE, U.S. ATTORNEY
REQUESTED FIREARMS SECTIONS COUNTS CHARGED, CALENDAR YEARS 1996-1998

Title 18 U.S.C.

Penalty
1996
1997
1998

Providing a firearm to a prohibited person unspecified category

10 years
17
25
10

Providing a firearm ta a felon

10 years
20
13
24

Possession of a firearm by a prohibited person, unspecified category

10 years
683
752
603

Possession of a firearm by a felon

10 years
1213
1366
1550

Possession or discharge of a firearm in a school zone

5 years
4
5
8

*AIl violations under the Brady act, Instant Check phase

1 year
0
0
0

**Transfer of a handgun or handgun ammunition ta a juvenile

1 year
9
5
6

Possession of a handgun or handgun ammunition by a juvenile

1 year
27
3
8

***"Enhanced penalty: Use of a firearm during crime of violence or drug-related crime prosecutable in federal court

5 years
1987
1885
1763
*For knowingly making any false statement or representation on Federal Form 4473, the penalty is 10 years.
***But if he knew or had reasonable cause to believe that juvenile would commit crime of violence the penalty is 10 years.
***10 years if short-barrelled rifle or shotgun or "assault weapon." 30 years if machine gun, destructive device, or firearm with silencer. On subsequent conviction: 20 years; life if machine gun, destructive device. or firearm with silencer.
Federal Prosecutions of Criminal Use of Guns
FY 1992-1998

"I think people around the country are shocked when they realize that we don`t have federal laws, when it comes to guns."

"It is very, very apparent that we don`t have federal laws. We have the 1968 Gun Control Act and that`s about it."

--Sarah Brady, before Women`s
National Democratic Club Luncheon,
September 21, 1993

Since1968, when Congress enacted the Gun Control Act--Title 18 of the United States Code, Chapter 44, FIREARMS--virtually every aspect of lawful firearms commerce--from manufacture to retail sale--has been strictly controlled, regulated and licensed by the U.S. Department of the Treasury, through its Bureau of Alcohol, Tobacco and Firearms (BATF).

More importantly, under the 1968 Gun Control Act, every aspect of unlawful firearms commerce was codified and Federal criminal felony penalties attached.

In the area of legal commerce, virtually no post-1968 firearm--imported, domestically manufactured, assembled, or sold--is without a Federally required record of its history. And virtually no pre-`68 Act firearm sold or otherwise transferred through a licensed dealer is without its paperwork as well. An entire Federal bureaucracy exists merely to record and track firearms pedigrees.

Since 1968, persons engaging in retail firearms sales must be vetted and licensed by the U.S. Department of the Treasury. Licensees are required to keep a formal record of each firearm they handle as part of their trade. They are subject to inspections and stringent reporting requirements. For example, a sale of more than two handguns to the same individual must be reported to Federal and state law enforcement authorities within close of business the day of purchase. Failure to keep records or make reports to the satisfaction of the government regulators is covered by draconian criminal and civil penalties. Dealers have been imprisoned for Federal paperwork violations.

If the public has been led to believe that crime is the engine driving the issue of gun control, then Congressional response over the years--with the exception of a very narrow area of long-existing law--has bordered on a political hoax.

None of the strictly regulatory provisions of Federal gun law has ever served as a prophylaxis against crime--any more than Food and Drug Administration statutes have any effect on the unlawful trade in and use of narcotic drugs: heroin, cocaine or crack. A Federal law regulating the business of the corner drug store does not have any effect on the highly illegal activities inside a darkened crack house.

From a practical view, the regulation of lawful firearms trade merely feeds the bureaucracy.

Yet, in the Federal gun law, there are sections of the act that could bear directly on crime and real criminals if they were used and enforced. Those sections cover per se criminal activity involving firearms and criminal possession of firearms.

At the urging of the National Rifle Association and with the active opposition of Sarah Brady`s Handgun Control Inc. those sections were strengthened in 1986 with enactment of the Firearm Owners Protection Act. In some cases, mandatory penalties were added.

In defining unlawful firearms commerce in 1968, Congress declared certain classes of people to be prohibited from even simple possession of a firearm, Simple possession means touching, not even ownership.

This prohibition covers possession of any firearm--be it a handgun, pistol, revolver, long gun, shotgun, rifle, semi-auto, single shot, full-auto. And it covers ammunition--cartridges and shotshells.

For practical purposes, this set of prohibitions made any and all commerce in any and all firearms unlawful for those people declared as constitutionally disabled from firearms possession.

Those prohibitions cover both the commerce which is legal to the rest of the population, as well as specific acts of commerce which have been prohibited since 1968 to all persons--such as any interstate transfer of any firearm by anybody except through a licensed dealer.

So, for 30 years, all transactions between licensed dealers and individual gun purchasers have been a point of special regulation by the Federal government.

To buy a gun from a licensed dealer, a purchaser of any firearm--handgun or long gun--must read and sign a Federal Form 4473, on which the buyer swears under penalty of stiff fines and stringent jail terms that he or she is not prohibited by law from firearms possession.

Virtually every aspect of lawful firearms commerce is heavily regulated, and there are heavy Federal penalties for criminals caught with guns already in place.

The form requires a yes or no answer to questions which define each category in the law which would prohibit gun possession.

The Form 4473 is filled out before the purchaser takes ownership of his or her firearm from a licensed dealer. Under the law, the form itself is physically held among records in the possession of the licensed dealer but is always accessible to Federal officers on demand. This custodial provision for 4473s was specifically created to avoid Congressional concerns that the information on the forms would provide the basis for a permanent national firearms registration system--something Congress has steadfastly refused to enact.

Among the major disqualifiers, specifically, a purchaser must declare that he or she is not a convicted felon, not under felony indictment, not a known user of illegal drugs, not an adjudicated "mental defective," not a fugitive from justice, nor an illegal alien, nor been dishonorably discharged from the U. S. military.

During the past year, the Treasury Department revamped the questions on the Form 4473 to clarify the issue:

"Have you been convicted in any court for a crime for which the judge could have imprisoned you for more than one year even if the judge actually gave you a shorter sentence?"

"Are you an unlawful user of, or addicted to, marijuana, or any depressant, stimulant, or narcotic drug, or any other controlled substance?"

In signing the form, the individual attests:

"I ALSO UNDERSTAND THAT THE MAKING OF A FALSE ORAL OR WRITTEN STATEMENT OR THE EXHIBITING OF ANY FALSE OR MISREPRESENTED IDENTIFICATION WITH RESPECT TO THIS TRANSACTION IS A CRIME PUNISHABLE AS A FELONY."

The purchaser must also affirm that he or she is a legal resident of the state in which the transaction is being made. (Interstate transfers of handguns by individuals are prohibited, except between licensed dealers.)

Additionally, under the Brady law, a handgun buyer was required to sign what has become known as the "Brady form" (ATF- F 5300.35), attesting to "Statement of Intent to Obtain a Handgun(s).

To make false or misleading statements on either form is to commit a number of Federal felonies. There is the same warning as on the Form 4473 that making a false statement on the form is a felony.

Congress specified Federal five and 10 year prison sentences for felons and drug users caught with--or even touching--a firearm under the Gun Control Act. This existing law applies to every corner of our nation. The law can be used to put armed felons behind bars--where they belong.

Since it is a Federal felony for a convicted felon or known drug user to possess a firearm, the `68 Act could be used to put every convicted felon or narcotics addict in prison if he or she subsequently possesses a firearm. Period.

Again, the law speaks not just to criminals and handguns, but criminals and all guns.

Inversely, any gun in the hands of a felon or drug user is an illegal gun. So the persistent spotlighting of a particular generic class of firearm by the media and anti-firearms-ownership special interest groups as being "preferred by criminals," is irrelevant under existing law. A so-called "Saturday Night Special" in the hands of a drug user or convicted felon is an illegal gun. A so-called "Assault Weapon" in the hands of a drug user or convicted felon is an illegal gun. Possession of any such gun by a prohibited person is already an illegal act.

In 1986, Congress enacted a series of amendments to the Federal gun control statutes through the Firearm Owners Protection Act, which added new layers of mandatory penalties for certain criminal use of firearms.

For example, in Sec. 924(g)(4), Congress provided sentencing of 10 years on each count for whoever in violating state or Federal drug laws, travels across state lines to acquire or attempts to acquire a firearm in another state.

And it provided that if a violator of the Gun Control Act can be shown as intending to commit a state or Federal felony involving the firearm, he has committed an additional Federal felony punishable by up to 10 years in prison for each count. Sec. 924(b)

The social price for criminal possession and use of firearms was escalated with these built-in multipliers for gun possession related to the illegal drug trade or use or intended use in a felony.

On March 16, 1999, the U.S. Attorney for Eastern Pennsylvania Michael Stiles explained the causes of crimes and the solution--better prosecution of armed criminals. "There is just no real risk attached to the conduct of the criminal deciding that he`s going to put a firearm in his pocket before he goes out. There`s no expectation that conduct will bring any significant jail time if caught. But with Federal prosecution we will change that culture, we will change that expectation by investigating, by prosecution, by obtaining convictions...," said U.S. Attorney Stiles.

Most recently, new prohibited-persons categories were added by Congress:

* persons convicted of misdemeanors covered by a myriad of criminal law under Congress` broad definition of "domestic violence."

* persons subject to a court order restraining the individual "from harassing, stalking, or threatening an intimate partner or child of such partner ..."

(The ex post facto and other concerns aside, these additional prohibitions in new law cover a huge body of state and local law.)

How can society make it any more illegal for criminals to possess and use any type or class of firearm?

It cannot.

This law applies to every corner of the nation. It is homogeneous. It could be enforced in any jurisdiction in the country by any Federal law enforcement official and prosecuted by any United States Attorney. It requires no special Federal officers, and it requires no special prosecutorial knowledge.

For example, a records check of a prohibited individual arrested for any crime involving possession of firearms, such as armed robbery, should result in Federal prosecution.

These are not high-risk apprehensions. For the most part, suspected violent Federal gun law violators could be arrested while they are already in custody of local police, charged with related crimes.

What should all this mean to the average peaceable citizen? Look at the possible effect on a single crime-ridden urban area.

Theoretically, assume there are 5,000 individual armed career criminals plying their violent trade in the Los Angeles basin during any given time. Assume those people are either convicted felons, fugitives, under indictment for felonious crimes, or known drug users. If police records or court documents show they have been found in simple possession of a firearm, life as free-roaming predators for these individuals should be over.

This law applies to every corner of the nation. It is homogenous. It could be enforced in any jurisdiction in the country by any Federal law enforcement officer.

Federal prosecutors could use the Gun Control law to take most of LA`s violent armed criminals off the streets--all 5,000 of them.

How can Federal arrest and prosecution of criminals and drug users with firearms be any easier?

Enter the Brady law. If the purpose of a verification of a potential handgun buyer`s bona fides is designed to catch and punish prohibited persons in the highly unlawful act of "attempted acquisition" of a firearm, then such a concept as "instant check" could provide some benefit. (This is a concept which the NRA has supported in opposition to Brady but with a deep and great caution; that no permanent record be maintained by the vetting authority.)

But as we shall see--catching criminals--was never the purpose of Brady.

In 1986 as part of the Firearm Owners Protection Act, Congress added new federal mandatory penalties for certain criminal uses of firearms, including a 10 year sentence each count for those who violate state of federal drug laws.

Take a single hypothetical example. Put a criminal face on an illegal gun buyer. He is drug dealer from Washington, D.C., with adult convictions for sale of narcotics, armed robbery and assault on a police officer. He is currently on parole for those offenses and has been indicted for a subsequent drug possession charge in the District of Columbia and is awaiting trial under a personal recognizance release. He is also wanted for an armed robbery charge in neighboring Prince George`s County, Maryland. There are pending fugitive warrants on him issued by courts in Indianapolis, Indiana.

By any measure, this is a bad guy. For Washington, D.C., this hypothetical composite is no exaggeration. This is the criminal profile feared by the public.

When this man walks into a gun store in Shade Gap, North Carolina, and attempts to buy a firearm, he is committing a series of Federal crimes--all felonies. These are violations as serious under the law as bank robbery or interstate car theft in terms of penalties Congress expected to be extracted on conviction.

It`s all found in United States Code, Title 18, Chapter 44, FIREARMS.

Following the "Can I help you?" greeting, the Federally licensed dealer asks our man if he is a North Carolina resident. He lies and says "yes" and that he`s from Raleigh. He also produces a counterfeit driver`s license. Those are separate criminal acts covered by Sec. 922(a)(6) which makes it unlawful for "a person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a ... licensed dealer ... to knowingly make any false or fictitious oral or written statement or to furnish or exhibit any false or fictitious or misrepresented identification ... ." Those acts are each punishable under Sec. 924(a)(1)(B) by up to five years in prison. Up front, when he speaks, our man opens himself up for arrest and prosecution for three Federal felony counts which would send him to prison for 15 years.

... any gun in the hands of a felon or drug user is an illegal gun.

Next, our man picks through a selection of handguns, handling several. He makes his choice--a used S&W Model 27 .357 Magnum revolver.

Given his criminal background, this act alone--during which he puts his fingerprints on the firearm chosen--constitutes violations of Sec. 922(g)--simple possession by a person to wit: (1) "who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;" (2) "who is a fugitive from justice;" (3) "who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C.)" Conceivably, each gun he touches is a separate set of felonies. Each of these violations of Federal law is covered in Sec. 924(a)(2) calling for up to a 10 year jail sentence. So just for picking up just the S- alone, he is liable for up to a 30 year Federal jail term.

After having chosen his firearm, our man is given a copy of the Brady form by the dealer. He fills it out. Here, he has again violated Sec. 924(a)(1)(B)--for making a written false statement. He attests that he is not a felon, not a drug user and not a fugitive. And he swears to a false name and address. This calls for an additional 25 years in jail.

Anticipating his clearing the now-"voluntary" background check under the "voluntary" Brady Law, our man buys two boxes of ammunition and takes them with him. Here again, he violates Sections 922(g)(1), (2), and (3) which prohibits him on three separate disqualifiers from possessing ammunition. The penalty here, up to 10 years in prison, each count. Those two boxes of shells constitute individual violations combined with his three personal disqualifiers (felon, fugitive and drug user), would get him another 60 years in prison.

When our man returns at the end of the (still intact) obligatory five day waiting period to take ownership of the S & W revolver, he is asked by the dealer to fill out the Treasury Form 4473.

He answers "no" to three questions on the 4473, as to his legal disqualification to own a gun. Again, he uses a false address and false name. These acts constitute five more individual felonies, totaling 25 years in a Federal penitentiary. Oh yes, he gives the dealer his false North Carolina Drivers license, who uses it to fill in the dealer portion of the form. Another five years in prison.

So ... assume the background check by local police produces evidence that our man is a multi-prohibited person and that he has thus committed a raft of federal crimes once he set foot in the Shade Gap Gun Shop.

Enforcement of Federal firearms laws could quickly rid a city of almost all its violent armed criminals, fugitives and drug users. If court records show they were found in simple possession of a gun, each and every one could be removed from the streets by prosecuting them under existing Federal law with mandatory sentences and ending the crime-sprees of these predators.

Now what?

All in all, our Washington, D.C., convicted felon/drug dealer has broken laws that--if he were tried and convicted to the maximum--would put him away for a total of 160 years as a guest of the Federal Bureau of Prisons. This is serious.

One would assume at this point, a United States Treasury agent from the Bureau of Alcohol, Tobacco and Firearms (BATF) would be waiting patiently for the final signature on the 4473 and for our man to take ownership of his illegal gun.

One would assume there would follow an arrest.

One would assume there would be at least a plea-bargain, perhaps a trial. One would assume, with all the clear-as-a-bell evidence of multiple mega felonies, that the criminal gun buyer would see the inside of a Federal correctional facility.

One would also assume that having caught a "fugitive" from justice, that the United States Justice Department would fulfill an obligation and notify the jurisdiction that issued warrants for this individual. "We`ve got your man."

Not with the Clinton Administration.

Almost nobody expects violent felons and drug dealers who break the law to be allowed to roam free--except perhaps President Bill Clinton, U. S. Attorney General Janet Reno, and a host of government officials who have the responsibility of enforcing the 1968 Gun Control Act as amended by Brady legislation. They have accepted the sworn duty to enforce all of that law, not just a portion of it.

President Clinton is consistent in his statements about the Brady law and about its place among the Federal Criminal statutes.

The President is fond of reminding the public of an ever-growing number of prohibited persons turned away from acquiring "handguns" by the Brady Act.

Violations of Federal laws on the criminal use or possession of firearms are feloniesÐjust like the Federal laws against bank robbery. But they are not enforced, and President Clinton gleefully brags about the fact that 250,000 "convicted felons, fugitives, drug dealers, gang members, stalkers ... and mentally unstable persons" are allowed to walk away from the scene of multiple Federal felonies with no fear of arrest, prosecution, conviction or imprisonment.

For example, on February 28, 1995, the first anniversary of the signing of the Brady Bill, the President said, "over 40,000 convicted felons, fugitives, drug dealers, gang members, stalkers, were prevented from purchasing handguns in the Brady Law`s first eleven months." (emphasis added.) The President`s description of these individuals conjures images of criminals bent on terrible hurt and harm to their peaceable fellow Americans.

He`s not wrong there.

Again, on June 27, 1997, at the White House signing of the Drug Free Communities Bill the President stated, "Since the Brady Bill passed, 250,000 felons, fugitives and mentally unstable persons have been stopped from purchasing handguns. ... And I`m going to do everything I can to make sure that we continue to keep guns out of the hands of people who should not have them."

There is something twisted here.

The law does not say that convicted felons, fugitives, drug dealers, gang members, stalkers "should not have guns."

If that had been Congress` only intent, it would not have specified five year and ten year and mandatory prison terms for violations of the Gun Control Act. Instead, United States Code, Title 18, Chapter 44, FIREARMS, Sec. 924 would have provided language to the effect that "persons found violating felony provisions of this title will receive a verbal warning and be released without any other action on the part of Federal law enforcement."

Indeed, had Congress enacted such an absurd penalty section, the public would have reacted by turning members who voted for it out of office.

What the law actually says is that any combination of acts in which prohibited persons attempt to obtain firearms as well as the mere possession of any firearm are serious crimes with equally serious consequences. It says that if they touch a gun they have committed a felonious criminal act, and will be punished for it.

The law defines a series of specifically feloniously unlawful acts which are part of an "attempted acquisition" of a firearm by a prohibited person.

There are Federal laws against bank robbery. To use Clinton-speak, bank robbery is "prohibited." In reality, bank robberies are not "prevented" by an FBI policy that says agents who arrive at the scene of a robbery in progress are required to inform the robber that he is not entitled to the money he has taken, and with that warning, let him go. In truth, the robber has committed bank robbery, nothing less than a serious Federal felony, and the FBI will act as the law requires. The public deserves no less.

Laws calling for penalties for the crime of murder could be viewed as "prohibition" against murder. But when a person violates that prohibition, he has committed the crime of murder. With respect to a murderer, the criminal justice system acts as the law requires. The public deserves no less.

President Bill Clinton and U.S. Attorney General Janet Reno ... have the responsibility of enforcing the 1968 Gun Control Act... They have accepted the sworn duty to enforce all of that law, not just a portion of it.

Why in the case of the felon or drug user violating provisions of the Gun Control Act does the public deserve nothing? Here, criminals are shooed away from the scene of their crimes, and public officials brag about it.

On that first Brady anniversary ceremony, the President also said "Three percent of the American people buying guns for the wrong reasons can do a phenomenal amount of damage, and stopping them can do a phenomenal amount of good, can keep a lot of citizens alive, and it can keep an awful lot of law enforcement officials alive."

The President seems to indicate that the terrible experience of being turned away after violating the Federal gun law serves as an epiphany for violent criminals. The robber who wanted this gun to rob, goes straight, and sees the light. Political connivance or wishful thinking; you decide.

Isn`t it logical that a violent felon will go elsewhere for a gun and that he will continue to commit other violent felonies? Doesn`t it make sense that the prohibited criminal needed a gun to commit a crime?

If the law provides easy arrests, easier prosecution, and very tough (often mandatory) sentences for felons, drug dealers et al buying guns, why are these "convicted felons, fugitives, drug dealers, gang members, stalkers ... and mentally unstable persons," not prosecuted?

Incarcerating violent criminals saves lives.

Every crime subsequently committed by (to use the President`s words) "convicted felons, fugitives, drug dealers, gang members, stalkers" turned away under the Brady Law by the Clinton administration was preventable. A criminal predator in jail cannot hurt any more innocent civilians on the outside. That`s what prison is for. That`s why Congress enacts criminal laws. That`s why the public has a right to expect those laws to be enforced.

Any blood spilled by a criminal turned away by the Clinton Administration is on the hands of the public officials who violated their public trust to enforce the law.

The prosecution--and subsequent imprisonment--of many armed criminals under Federal gun laws could be as simple as a phone call to the U.S. Attorney`s office.

No matter how large the number grows, what the President is really crowing about is the number of criminals turned away from arrest and prosecution for crimes they have committed under the law that the Brady Bill amended.

The President says lives have been saved by Brady. There is no empirical data that could possibly support that supposition.

There is--on the other hand--a waiting body of hard evidence that any good criminologist or statistician could assemble showing that lives have been lost because Clinton law enforcement officials have refused their sworn obligation to uphold the laws of the United States. The refusal to enforce the pre-existing prohibitions against criminal possession of firearms has cost lives. Every criminal found to have attempted acquisition of a handgun under Brady who was subsequently released back into society with no penalty, and who has taken a life, has done so with the official blessing of President Clinton.

The White House prides itself in its online technology. It boasts an impressive "search engine" which is capable of finding and producing documents; speeches, statements, press conferences, press releases, public addresses, announcements and the like from the White House data base. On the White House Internet site, the actual category is titled "White House Documents: Publicly-released documents since the start of the Clinton Administration." One can choose time periods running from Jan 1, 1993 through whatever today`s date is, or search the whole history.

The electronic service is accurate and specific.

Ask for a search for a string of words and it produces the number of documents where those words occur.

For example, Search:

"Brady law" and it produces titles for 33 individual files or documents.

"Brady law arrest" and the engine gives the message, "Zero Results".

"Brady law convictions" shows, "Zero Results".

"Brady law prosecutions" indicates, "Zero Results".

"Brady law enforcement" produces, "Zero Results".

Used in conjunction with the words "Brady law" any common phrase or term that describes using the law to put criminals in prison simply is not part of the President`s normal vocabulary. Such words are not in the Clinton lexicon.

The only hard figures that have been produced on the number of arrests and prosecutions under the Brady law were part of a General Accounting Office study issued January 25, 1996.

About this time, the President was claiming "60,000 people with criminal records being denied access to guns." These were claimed as hard and fast figures. From that statement, one might assume that prosecutions of felons, fugitives and drug users trying to purchase guns would have been in the tens of thousands, or perhaps thousands, or at least hundreds. One would assume that the priority of Federal law enforcement here would be to enforce the law and to prosecute those who violate the law.

GAO noted it found seven Brady-related prosecutions.

Seven.

If the President`s figures of 60,000 were taken at face value, they represented the active commission of at least 240,000 felonious acts in violation of Federal law.

In a footnote, the GAO explained the disposition of the seven cases:

"None of the prosecutions involved prospective gun purchasers with previous convictions for violent offenses. However, three of the cases did involve individuals who lied on the Brady handgun purchase form about drug-related felony convictions. ... the subsequent Brady prosecutions of these individuals resulted in prison or custody sentences of 12 to 24 months."

As to the rest: "The other four cases--related gun-trafficking cases prosecuted within the Southern District of West Virginia--involved individuals who had falsified state identification cards and the Brady handgun purchase form to portray themselves as residents of West Virginia when, in fact, they were residents of New York. In all four cases, the defendants pled guilty. Three of the four defendants were sentenced to 2 years` probation, and the fourth was sentenced to 6 months` home confinement and 3 years` probation."

Any blood
spilled by a
criminal ...
is on the hands
of the public officials who
violated their
public trust
to enforce
the law.

In responding to GAO inquiries about the numbers of Brady law prosecutions, Justice Department officials said that gleaning such figures would be "unduly burdensome to undertake." (Yet they easily produce the Brady turn-down figures.)

"Such statistics are not a meaningful measure of the effectiveness of the Brady Law. ... [T]he statute was not primarily intended as a prosecutive mechanism but rather as a means of keeping handguns out of the hands of convicted felons, fugitives, and other prohibited persons.

Prosecution of armed violent felons under Federal gun laws are not generally high risk apprehensions for law enforcement officers. For the most part, suspected Federal gun law violators could be arrested while they are already in custody of local police. They can simply be moved to Federal custody for prosecution under existing Federal gun laws.

"From an enforcement perspective, the Brady Law fully serves its purpose when it succeeds in thwarting the acquisition of a firearm by such individuals."

GAO stated, "In response to our inquiries about referrals and prosecutions issues, the Acting Assistant Attorney General--who is a senior DOJ official responsible for monitoring Brady implementation--reinforced the view that the act was intended primarily to deter or prevent unauthorized individuals from obtaining handguns from federally licensed firearms dealers. (emphasis added). DOJ has noted that because prosecutions for false statements on handgun purchase applications are inefficient and ineffective in advancing this purpose, the number of prosecutions is not a good measure of Brady`s effectiveness or usefulness. In addition, with regard to the prospect of prosecuting Brady-generated cases, the Special Counsel to the Acting Assistant Attorney General stated that no new resources were provided to U.S. Attorney Offices, which already must make resource allocation decisions to address competing demands, including the emphasis in recent years on prosecuting drug kingpins and pursuing other complex, significant cases.

"... most U.S. Attorneys do not view the act as being a prosecutorial tool to use frequently, irrespective
of the volume of referrals and potential cases ..."
--ATF officials quoted by
General Accounting Office

"Similar views were expressed by ATF officials in response to our inquiries. For instance, the Special Agent in Charge of the Firearms Enforcement Branch (ATF headquarters) told us that Brady is achieving its primary purpose of preventing felons from being able to purchase handguns from gun dealers. However, most U.S. Attorneys do not view the act as being a prosecutorial tool to use frequently, irrespective of the volume of referrals and potential cases involving falsified Brady forms," said ATF officials quoted by the GAO.

In essence and in fact, these officials are ignoring any connection between Brady and the rest of the body of Federal law with respect to prohibited persons and guns. It is as if they believe that Sarah Brady`s totally false statement--"we don`t have federal laws, when it comes to guns"--were true.

Furthermore, we have government prosecutors and law enforcement officials saying that lying on a Federal form is no big thing. How about lying on or falsifying a Form 1040? The entire draconian nature of Federal income tax law enforcement is based on falsifying a written claim.

At a U.S. Senate Judiciary Committee hearing Attorney General Janet Reno was asked if there would be any improvement in sluggish Federal prosecution of firearms law violations. "I can`t promise you improvement in numbers," she replied. Said the May 24, 1999, Washington Post of Reno: "Her priority was controlling possession of guns, not their use."

The President likened the Brady bill to high-tech Federal aviation security "... it`s kind of like airport metal detectors."

It`s an interesting analogy and points up the Orwellian nature of language in the Clintonian era.

Try walking through an airport metal detector, or a Federal court house metal detector or, better yet, the White House metal detectors with a gun. Having committed that crime, you would not be "turned away." You would not be "discouraged." You would not be "prevented." You would not be "thwarted." You would not be "stopped" from committing that criminal act.

You would be arrested, most likely, plea-bargained and jailed for committing that crime.

Thwarting, stopping, preventing or discouraging would be brought about before the crime is committed. A man with a gun trying to enter the White House through a metal detector who decides not to attempt such a fool hardy act is discouraged and all the rest of those things.

The act of not committing that crime in the first place, is a discouragement brought about by the common knowledge of swift and sure punishment.

If such a law were enforced in a widely publicized, wide-ranging effort, criminals would cease to use and possess firearms. The cost for them would be too high.

Not going into the gun store because the trip would mean spending the rest of your life in a Federal prison--now that is an illegal act that has been "stopped".

Although countless editorials have been written in the politically-correct media about President Clinton`s huge "turnaway" numbers, not a single comment has been issued about his single digit arrest figures cited by GAO.

Why isn`t there a terrible outcry in the media? Why doesn`t the general public know any of this?

The NRA has surely tried to tell the public. But our efforts to get the truth out have been "thwarted," "stopped," etc.

If the Federal firearms laws were actually being aggressively enforced, as the American people assume them to be, armed violent criminals would be in prison and there would be a dramatic drop in crime as Project Exile in Richmond, Va., plainly proves. If the Clinton Administration were enforcing the laws Congress has written, innocent lives would be saved each day, and the clamor for more gun laws would evaporate.

Because the real teeth of Federal law with respect to criminals and guns is a secret guarded by those who wish to outlaw possession of firearms by peaceable Americans. If left to the media, and anti-firearms politicians and anti-firearms ownership special interest groups, it will remain a deep secret.

If such a law were enforced in a widely publicized, wide-ranging effort, criminals would cease to use and possess firearms. The cost to them would be too high. If their price for violating existing Federal felon-with-a-gun provisions, alone, were paid in full, predatory violent criminals would simply be taken off the streets.

The law is never enforced, never acknowledged by the Bradys or politicians like Bill Clinton because were the truth out, the gun control issue in all of its permutations would be moot. Not a single new gun law would be supported by any right thinking citizen.



RICHMOND`S VIOLENT FELONS KNOW:
"TOUCH A GUN, GO TO PRISON"*
LAW ENFORCEMENT AS CONGRESS INTENDED

Where the official Clinton-Gore Administration national policy has been active refusal to enforce the law one jurisdiction thwarted the party line and prosecuted the armed felon provisions of federal law. That jurisdiction was Richmond Virginia, were a joint federal/state/local task force called Project Exile was organized.

Seizing on the success in Richmond, several Governors moved to enact programs modeled after Project Exile. Thus Exile is now in place on a statewide basis in six jurisdictions: Virginia, Colorado, South Carolina, Pennsylvania, Louisiana and Texas. Project Exile has spread thanks to the work of Governors and law enforcement officers in those states despite the fact that the Clinton-Gore Administration initially opposed it, has only reluctantly admitted that Exile does indeed work and has yet to put the full weight of the executive branch behind the program.

To see the effectiveness of Project Exile, one only has to look at the city where it started--Richmond, Virginia. There it has been so successful that it`s actually changing the way criminals operate in the city. Thanks to Exile drug dealers are reportedly disarming themselves rather than face enhanced sentencing for gun possession involving drugs which could easily mean life imprisonment under existing federal law.

In just one city, Federal gun law prosecutions have locked up more armed criminals than enforcement of the Brady Act has in all 50 states

Before it began in 1997, the city of Richmond suffered the second highest per capita homicide rate in the nation. Today, the U.S. Attorney`s Office in Richmond reports that following the implementation of Project Exile, lives are being saved. Homicides in 1999 were 46% below 1997 for the lowest number since 1987. Gun crimes have declined an amazing 65%.

Under Project Exile, Richmond Police Department officers and Virginia State Troopers carry a laminated card that lists the types of criminals targeted for Project Exile proSecution under federal law. That list includes a person who has a gun and is a "convicted felon (state or federal!, drug user or addict, fugitive who has fled another state, (or) is under indictment for a felony." When an officer makes an arrest and one of these crimes may be involved, the officer calls the 24-hour pager number listed on that laminated card to determine if federal law may have been broken. If it has, Project Exile initiates federal prosecution immediately.

Project Exile officials say the federal system offers the advantages of prompt indictments, no bond (there fore no pretrial release), and faraway prisons less accessible to the inmate`s family and friends. Press reports show that a felon-in-possession case in state court would take about a year to prosecute, during which time most defendants are on the streets, free on bond. The same case in federal court would take about 70 days, and bond is denied in 69% of Project Exile cases.

The U.S. Attorney reports that publicity i essential to the program`s success. Thousands of business cards printed with the slogan "An illegal gun gets you 5 years in Federal Prison" have been distributed, and the message is repeated on billboards and other advertising.

Breaking federal gun laws carries a heavy penalty. For example, for possessing a gun or ammunition, a felon can be sent prison for 10 years and fined $250,000. Moreover, federal law requires a mandatory minimum five years in prison for this offense, and under Project Exile, prosecutors will not plea bargain to a sentence below the mandatory minimum. If a plea agreement is not reached, the case proceeds to trial.

Under Project Exile in Richmond, as of April 1, 2000:

  • 607 individuals have been indicted for federal firearm violations
  • 460 individuals have been arrested on the federal charges
  • 311 (approx. 69%) have been held without bond
  • 383 have been sentenced to an average 56 months (4.7 years) in a federal prison

Due to "Project Exile," murder has been reduced by 33% and robbery is down 30% since 1997 in Richmond, Virginia. Publicity is part of Project Exile`s success, including putting the program`s message on billboards and through other advertising. It is so effective that many drug dealers are disarming themselves.

Under Project Exile, one state prosecutor was assigned to the U.S. Attorney`s Office to assist in the federal prosecutions. Additionally, the Richmond Police Department and Virginia State Troopers each assigned two members of their staffs to the Richmond office of the BATF to assist in Project Exile investigations. The U.S. Attorney`s Office reports that "(t)he project requires a minimal amount of prosecutorial and investigative resources."

Project Exile puts into practice what NRA and others have been saying all along. Violent armed criminals are arrested and "exiled" from innocent citizens through absolute and certain Federal prosecution and prison under existing law. Criminals drug dealers, felons, fugitives all those categories that make the revolving door statistics of the Brady Act so obscene are in deep trouble in Richmond if they possess any gun. Punishment is swift and there is no escape for the guilty. As a result many innocent lives have been saved.

President Clinton, Al Gore and their Congressional anti-gun allies continue to hold up the Brady Act as an effective crime-fighting tool, but they can`t explain why the 500,000 felons, drug dealers, stalkers and fugitives who walked into federally licensed dealers to purchase guns illegally were simply turned away. They committed multiple federal felonies, crimes punishable with 10-year prison terms. But these felons, drug dealers, stalkers and fugitives were not arrested. They were not prosecuted. They didn`t go to prison, and no community was made safer.

*This analysis was written subsequent to the publication of Commentaries on Law & Public Policy: 1997 and not included therein.


"(e)xperience ... demonstrates that
federal prosecutors can undertake a large scale prosecution effort of gun crimes with relatively limited personnel resources. ... The program is highly replicable. Frankly, all it takes is the will to implement it."
--July 18, 1998, Project Exile Report

Excerpted From:

Commentaries on Law & Public Policy: 1997 Yearbook
as printed by The Dumont Institute for Public Policy Research.

Photos by Mark C Ide, for illustration purposes only.

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