Weak Gun Laws: The ATF Scandal Rep. Issa Won't Talk About

June 13, 2011 12:47 pm ET

This week, Rep. Darrell Issa's (R-CA) will hold hearings into Operation Fast and Furious, a controversial effort by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to investigate the flow of guns from southwest across the border into Mexico by allowing certain shipments of firearms to pass. Issa's hearing will likely focus solely on attacking members of the Obama administration for their possible involvement in approving the program, rather than also investigating the weak statutory authority that law enforcement have to stop gun trafficking to Mexican drug cartels. Law enforcement officials have noted that without a federal firearms trafficking statute, they are forced to rely on lesser statutes that carry low penalties. While gun dealers are required to report the sale of multiple handguns, there is no such requirement for the sale of assault weapons, making it more difficult for law enforcement to identify possible trafficking activity. Furthermore, traffickers can purchase such weapons without needing to pass a background check.

The Problem: Weak Laws Allow Gun Trafficking Across The Border To Mexican Cartels

Since 2006, 60,000 U.S. Guns Have Been Recovered In Mexico. The Washington Post reported: "Federal authorities say more than 60,000 U.S. guns of all types have been recovered in Mexico in the past four years, helping fuel the violence that has contributed to 30,000 deaths. Mexican President Felipe Calderon came to Washington in May and urged Congress and President Obama to stop the flow of guns south." [Washington Post, 12/15/10]

In 2008, Before Operation Fast And Furious Began, 7,700 Weapons That Were Recovered In Mexico Were Traced To U.S. Gun Sellers. The Washington Times reported in March 2009: "ATF officials say more than 7,700 weapons recovered in Mexico last year were traced to U.S. gun sellers." [Washington Times, 3/22/09]

Mexican President Calderon Has Sought Help In Stopping Flow Of Guns From U.S. To Mexican Gangs. From The Washington Post:

Mexican President Felipe Calderón, speaking to a joint session of Congress Thursday, pleaded for more help in limiting the flow of weapons to Mexico, saying they were contributing to the devastating drug violence in his country.

In a speech punctuated by applause and standing ovations, Calderón thanked lawmakers for providing hundreds of millions of dollars to bolster his country's fight against drug gangs. He emphasized his government's resolve to confront the narco-traffickers, who have killed more than 20,000 people in Mexico in recent years.

However, he said, Mexico needs greater U.S. assistance stopping the flow of assault weapons and other deadly arms across the border. [The Washington Post, 5/21/10]

Former ATF Assistant Director Bouchard: "Very Weak" Laws, "Very Few" Resources Hinder Effort. From an April 1 Center for Public Integrity article: "Michael Bouchard, a former ATF assistant director who oversaw the bureau's field operations until 2007, summed up the problem succinctly. The laws, he says, are 'very weak,' the resources 'very few.'" [IWatchNews.org, 4/1/11]

Vice President Of Association Of Prosecuting Attorneys Steven Jansen: ATF "Handcuffed By Ineffective And Weak Laws." In a statement to Media Matters, Jansen said:

Through straw purchasers the Mexican drug cartels continue to arm themselves with military-style weapons such as the AK-47 style assault rifles.  This is an urgent concern for U.S. law enforcement as we attempt to stop the flow of drugs into our country and create safer communities along our southern border states. Last November, the U.S. Justice Department's Inspector General Report identified that the Bureau of Alcohol, Tobacco, Firearms and Explosives was handcuffed by ineffective and weak laws, especially for straw buyers. [Media Matters, 4/12/11]

Weak Laws: No Reporting Requirement For Multiple Sales Of Cartel's Weapon Of Choice

Gun Shops Are Required To Report Sales Of Multiple Handguns To Law Enforcement. From the Department of Justice Office of the Inspector General's review of AIF's Project Gunrunner: "The Gun Control Act requires that gun dealers report multiple sales of handguns (defined as two or more handguns sold at once or during any 5 consecutive business days) to ATF." [DOJ IG report, Review of ATF's Project Gunrunner, November 2010]

Multiple Sales Are Considered An Indicator Of Possible Firearms Trafficking. From the IG report:

The purchase of multiple guns within a short period of time by an individual who is not a gun dealer may indicate that the individual is engaged in firearms trafficking. For example, firearms trafficking indicators include:

  • multiple sales in which a purchaser also appears on one or more past gun traces;
  • multiple sales in which the purchaser was born outside the United States;
  • a multiple sale of five or more guns;
  • more than one multiple sale at the same gun dealer on the same day;
  • traces in which the recovered gun was purchased in a multiple sale; and
  • crime guns traced back to a multiple sale in a state other than where a gun was recovered. [DOJ IG report, Review of ATF's Project Gunrunner, November 2010]

Handgun Reports Are A "Valuable Source Of Timely And Actionable Investigative Leads." From the IG report:

Additionally, ATF uses multiple sales reports to verify gun dealers' records, to detect suspicious activity, and to generate investigative leads. ATF personnel we interviewed in Southwest border offices cited multiple handgun sales data as a valuable source of timely and actionable investigative leads for detecting firearms trafficking and said such leads have led to the prosecution of traffickers. [DOJ IG report, Review of ATF's Project Gunrunner, November 2010]

Multiple Sales Of Long Guns Are Not Required To Be Reported. From the IG report: "Multiple sales reporting is a less viable source of intelligence on firearms traffickers because multiple sales of long guns are not reported. Multiple sales of long guns are not subject to the same reporting requirements as handguns." [DOJ IG report, Review of ATF's Project Gunrunner, November 2010]

Long Guns Are "Mexican Cartels' Weapons Of Choice." From the IG report:

[L]ong guns have become the Mexican cartels' weapons of choice. ATF reported in a statement to Congress last year:

Until recently drug traffickers' "weapon of choice" had been .38 caliber handguns. However, they now have developed a preference for higher quality, more powerful weapons, such as.223 and 7.62x39mm caliber rifles, 5.7x28 caliber rifles and pistols, and .50 caliber rifles; each of these types of weapons has been seized by ATF in route to Mexico.

The OIG's analysis of National Tracing Center data of Mexican crime guns recovered from FY 2004 through FY 2009 confirmed the increase in the use of long guns by Mexican drug cartels. During this time, the percentage of crime guns recovered in Mexico that were long guns steadily increased each year from 20 percent in FY 2004 to 48 percent in FY 2009. [DOJ IG report, Review of ATF's Project Gunrunner, November 2010, emphasis added]

Evidence Indicates Mexican Cartels Are Acquiring Long Guns Through Multiple Sales In The U.S. From the IG report:

Evidence also indicates that Mexican cartels are obtaining long guns in multiple sales. The case study in the text box below demonstrates how high volumes of trafficked long guns can be obtained through multiple gun purchases. In that particular case, a trafficking ring purchased at least 336 weapons, of which the OIG determined through ATF data that 251 (75 percent) were long guns. Of the 251 long guns, all but 1 were purchased as a part of multiple sales, and these sales would have been reportable to ATF had they been handguns. According to ATF and other Department personnel, this case is one of many ATF cases involving multiple purchases of long guns. [DOJ IG report, Review of ATF's Project Gunrunner, November 2010]

Congressional Republicans Opposed Proposed Rule That Would Establish Reporting Requirement For Long Guns. From the Center for Public Integrity:

So in December, ATF proposed an emergency rule to have gun dealers in southwest border states immediately report anyone buying multiple semi-automatic rifles in a five-day span.

[...]

On March 9, in a letter to the Justice Department criticizing the ATF for letting guns into Mexico, 14 House Republicans on the Judiciary Committee voiced their strong opposition to the proposed rule.

"We are also troubled that ATF engaged in activities that may have facilitated the transfer of guns to violent drug cartels while simultaneously attempting to restrict lawful firearms sales by border-area firearms dealers," said the letter signed by committee chairman Rep. Lamar Smith, R-Texas, and 13 others. [IWatchNews.org, 4/1/11]

Weak Laws: Without Federal Firearm Trafficking Statute, Law Enforcement Forced To Rely On Minor Statutes With Low Penalties

There Is No Federal Firearm Trafficking Statute. From the IG report: "There is no federal statute specifically prohibiting firearms trafficking or straw purchases." [DOJ IG report, Review of ATF's Project Gunrunner, November 2010]

ATF Addresses Criminal Firearms Trafficking Activities Through A Variety Of Minor Statutes. From the IG report:

We analyzed ATF data on all Project Gunrunner cases referred to USAOs [U.S. attorneys' offices] for prosecution between FY 2004 and FY 2009 and identified the most frequently used statutes and the average sentences given in cases that were prosecuted federally. ATF used 75 different statutes to obtain federal prosecutions of Project Gunrunner cases during that period. We determined through our interviews of ATF personnel and analysis of ATF cases referred to USAOs for prosecution that four of the statutes are most often used to build cases against firearms traffickers:

1.  Knowingly making a false statement - 18 U.S.C. § 924(a)(1)(A) - ATF commonly uses this charge for straw purchasers who knowingly made false statements to gun dealers or in the records that gun dealers are required to maintain (Form 4473);

2.  Knowingly making a false statement in connection with a firearm purchase - 18 U.S.C. § 922(a)(6) - ATF commonly uses this charge when individuals make false statements that affect the legality of sales;

3.  Knowing possession of a firearm by a convicted felon - 18 U.S.C. § 922(g)(1) - ATF uses this charge for convicted criminals who qualify as "prohibited persons" under the Gun Control Act and can be prosecuted for being in possession of a firearm; and

4.  Willfully engaging in firearms business without a license - 18 U.S.C. § 922(a)(1)(A) - ATF commonly uses this charge when individuals deal in guns as a regular course of trade or business. Those who make occasional gun sales cannot be charged under this statute. [DOJ IG report, Review of ATF's Project Gunrunner, November 2010]

Commonly Used Straw Buyer Charge "Difficult To Prove And Judges Often Don't Take It Seriously." From an April 1 Center for Public Integrity article:

Without a targeted federal gun trafficking law, prosecutors are forced to rely on other statutes that agents and prosecutors say are difficult to enforce and riddled with loopholes.

Chief among them: a frequently used law against lying on the ATF's Form 4473 at a gun shop - especially in claiming the buyer is purchasing for himself, rather than someone else. But court decisions have made this "straw buyer" charge difficult to prove and judges often don't take it seriously. The issue has been highlighted in recent months by both U.S. Attorneys posted along the border and the Justice Department's inspector general. [IWatchNews.org, 4/1/11]

Statutes Used To Prosecute Firearms Traffickers Carry Low Sentences. From the IG report:

We examined the Sentencing Guidelines for the statutes that ATF most frequently used in charging defendants with firearms trafficking. Under the Guidelines, straw purchasing-related offenses are categorized as lesser crimes, punishable by 10 to 16 months in prison. This is because these crimes are assigned low "offense levels" and because to legally purchase a gun, by definition, a gun purchaser must have had no prior felony convictions. The OIG's analysis of ATF's case data found that 40 percent of all defendants who were charged and convicted of "knowingly making a false statement in connection with firearm purchase" (18 U.S.C. § 922(a)(6)) - one of the primary charges associated with straw purchasing - received only probation. [DOJ IG report, Review of ATF's Project Gunrunner, November 2010]

U.S. Attorneys' Offices Often Decline To Prosecute Cases Based On Those Statutes. From the IG report:

USAOs are less likely to accept and to prosecute ATF's Project Gunrunner cases for several reasons, including the lower penalties described above. We found that AUSAs often decline Project Gunrunner cases because they believe it is difficult to obtain convictions on the violations established in the four statutes that ATF typically uses for firearms trafficking and because they believe it is difficult to obtain evidence from Mexico. We also found that USAOs decline to prosecute ATF Project Gunrunner cases that are based on the four statutes at a much higher rate than Project Gunrunner cases citing violations of other statutes. [DOJ IG report, Review of ATF's Project Gunrunner, November 2010]

Assistant U.S. Attorneys Believe Cases Involving Gun Trafficking Are Difficult To Prosecute. From the IG report:

In discussions with the OIG, Department and USAO attorneys explained that proving the elements necessary to obtain convictions under the statutes used to combat firearms trafficking is difficult. For example, a Deputy Assistant Attorney General who was a former AUSA told the OIG that willfully engaging in a firearms business without a license is a very difficult charge to prove because the government has to prove that an individual was acting in a business capacity. To do that, ATF must establish that the sale was not a private transaction but was part of a revenue earning enterprise. In practice, this means ATF must get the suspect to admit or acknowledge selling guns "willfully," as specified in the statute. According to the Deputy Assistant Attorney General, many suspects can avoid prosecution simply by claiming they were selling guns from their private collection, which is not a crime. [DOJ IG report, Review of ATF's Project Gunrunner, November 2010]

U.S. Attorney: There Would Be More Prosecutions If Penalties Were Stiffer. From the IG report:

Overall, our interviews with AUSAs in Southwest border districts indicated that the factors cited above make USAOs less likely to dedicate their resources to ATF's firearms trafficking-related Project Gunrunner cases than to other types of cases. Our interviews with AUSAs found that the lack of long sentences is also a key factor in their decisions about whether to accept these Project Gunrunner cases. As one AUSA stated, "If there were more penalties for firearms trafficking cases, you would see a lot more interest [from USAOs] in pursuing [those cases]." AUSAs told us that the limited prosecutions and low penalties reduce their ability to use the threat of prosecution to induce suspects to cooperate and provide evidence against their co-conspirators. [DOJ IG report, Review of ATF's Project Gunrunner, November 2010]

Five U.S. Attorneys Called On Sentencing Commission To Increase Penalties For Straw Buyers. In a letter to Chief Judge William K. Sessions of the United States Sentencing Commission, the U.S. Attorneys for the five border jurisdictions wrote:

As chief federal law enforcement officers in the Southwest border region, we strongly believe the Commission must amend USSG § 2K2.1 if it is truly to address the national security implications of arms trafficking. As the Department explained during its meeting with Commission staff, straw purchasers are the primary source of firearms trafficked to Mexico from the United States. Most of the defendants prosecuted for arms export or arms trafficking offenses involving the Southwest border would not have obtained the firearms at issue were it not for the efforts of straw purchasers. Yet because straw purchasers face such low guideline ranges under § 2K2.1, and because many judges see straw purchasing as a mere "paper" violation, the sentences received by straw purchasers fail to reflect the seriousness of the crime or the critical role played by these defendants in the trafficking and illegal export of weapons. Simply put, straw purchasing and illegal arms exporting go hand in hand, and both must be addressed together.

[...]

[W]e believe it is critical that in this amendment year, the Commission promulgate amendments to the firearms trafficking-related sentencing guidelines like those the Department has discussed with Commission staff, which would provide modest but meaningful increases in penalties for straw purchasing offenses. [Letter to Sessions, 12/2/10, via PublicIntegrity.org, emphasis added]

Weak Laws: Traffickers Banned From Buying Guns Can Purchase Them From Private Sellers

Traffickers Can Buy Guns At Gun Shows Without Passing Background Check. From the IG report:

Individuals who buy guns from an unlicensed private seller in a "secondary market venue" (such as gun shows, flea markets, and Internet sites) are exempt from the requirements of federal law to show identification, complete the Form 4473, and undergo a National Instant Criminal Background Check System check. Therefore, according to ATF and other Department officials we interviewed, individuals prohibited by law from possessing guns can easily obtain them from private sellers and do so without any federal records of the transactions. [DOJ IG report, Review of ATF's Project Gunrunner, November 2010]

Gun Shows A "Primary Source" For Mexican Drug Cartels. From the IG report: "According to these officials, gun shows are a primary source of weapons for Mexican drug cartels." [DOJ IG report, Review of ATF's Project Gunrunner, November 2010]

Law Enforcement Largely Unable To Trace Guns Sold By Gun Dealers. From the IG report: "Generally, ATF can most readily trace a gun to the individual who first purchased it from a gun dealer. ATF has limited ability to trace used firearms sold by gun dealers and generally cannot trace privately sold guns to the private purchaser." [DOJ IG report, Review of ATF's Project Gunrunner, November 2010]

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