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NYC Mayor's Criticism of Gun Legislation Challenged
By Jeff Johnson
CNSNews.com Senior Staff Writer
http://www.cnsnews.com/ViewNation.asp?Page=\Nation\archive\200603\NAT20060331a.html
(CNSNews.com) - New York City's mayor is blasting a congressional proposal under which several temporary federal gun regulations would become permanent law. Michael Bloomberg claimed the legislation "would explicitly impinge on our ability to fight illegal gun trafficking, and it would result in the shooting deaths of innocent people." But an attorney who specializes in federal firearms laws calls Bloomberg's claims "patently false."
The House Judiciary Subcommittee on Crime Terrorism and Homeland Security met Tuesday to discuss the "Firearms Correction and Improvement Act" (H.R. 5005) introduced last week by Rep. Lamar Smith (R-Texas). Smith wrote the bill to permanently include in federal firearms laws a number of provisions that have been reenacted annually as "riders" to appropriations bills.
The portion of Smith's bill with which Bloomberg took issue is Section 9, entitled "Trace Disclosure." It makes permanent a ban on using so-called "crime gun trace data" collected by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) for any purpose other than criminal prosecutions and ATF administrative proceedings.
Bloomberg called that trace data "the single most powerful way to demonstrate unmistakable patterns of illegal conduct."
But attorney and firearms law expert Richard Gardiner challenged that description.
"That assumes that trace data is meaningful in indicating that [firearms] dealers are involved in selling guns that are used in crimes," Gardiner told Cybercast News Service. "And the problem with that is that the trace data does not include all guns used in crimes, that is to say, not all trace guns are 'crime guns' and not all 'crime guns' are traced."
In fact, a law enforcement agency request for ATF to trace the ownership of a firearm - from manufacturer to distributor to retailer to buyer - does not necessarily indicate that the firearm was used in the commission of a crime or even that it was illegally possessed.
Gardiner cited multiple examples of firearms that were not true "crime guns" being traced at the request of law enforcement agencies, including weapons found in the homes of deceased people who lived alone and stolen firearms recovered by police. In both examples, traces are conducted not because the firearms are "crime guns" but because law enforcement agencies want to return them to their rightful owners.
Still, Bloomberg argued that the data from those traces can help identify willful misconduct on the part of gun dealers.
"It's pretty simple," Bloomberg said, "gun dealers with inordinately large numbers of traces to crime guns are gun dealers that make it their practice to sell to straw purchasers." (A "straw purchase" is when a person legally entitled to own a firearm purchases it on behalf of another person who is prohibited from possessing any gun either because of a felony conviction or other disqualifying factor. Such sales are a criminal violation of federal law.)
Gardiner said Bloomberg's conclusion is not supported by facts.
"Even if there were straw sales, straw man sales being made from dealers, that doesn't prove that the dealer was doing anything wrong," Gardiner argued. "There's no evidence from tracing, because of the problems with tracing, that dealers are selling guns unlawfully. The trace couldn't indicate that and, in fact, doesn't indicate that."
Gardiner cited the case of a gun dealer he is currently representing who was charged with conspiring to facilitate three straw purchases. All three of the buyers admitted under cross examination that the gun dealer knew nothing about their illegal actions and that they went to great lengths to conceal the straw purchases from the gun store's staff.
"So, the fact that there are straw sales going on from a dealer doesn't mean the dealer is doing anything wrong," Gardiner suggested. "Mayor Bloomberg's theory is that, if straw sales are being made at that dealer's premises, [the dealer is] committing a crime when, in fact, he's the victim."
Bloomberg also chastised supporters of the bill, claiming that it would, "actually treat police officers like criminals."
"Under the terms of H.R. 5005, a detective who shares ATF trace information with another state government for use in a license revocation hearing against a rogue dealer would be committing a federal felony - a crime punishable by up to five years in prison," Bloomberg complained. "In other words, if an NYPD Detective talks to a New Jersey State Trooper about a problem gun dealer problem, that Detective could go to jail."
Gardiner called Bloomberg's charge "an absolute fabrication."
"There's nothing in this bill that has anything to do with criminal penalties," Gardiner said. "All it does is prohibit the disclosure of trace data information by ATF to anyone other than law enforcement.
"Even if ATF violated it, it's not a criminal violation. It probably should be, but it's not," Gardiner continued. "It just says ATF can't do it, but it doesn't provide any penalty if they do."
Gardiner believes one sentence in Bloomberg's testimony reveals the mayor's real objection to the bill.
"By forbidding the use of trace data in civil and administrative proceedings," Bloomberg complained, "H.R. 5005 would make it far more difficult to bring civil suits against rogue gun dealers."
Those lawsuits, Gardiner contends, are designed to put allegedly "rogue" gun dealers out of business even after they have been cleared of any wrongdoing by the ATF and the criminal courts.
"I think that's the real issue because that's what they wanted [trace data] for and that's exactly what the bill prohibits," Gardiner said. "It's about bringing suits against gun dealers and trying to shut them down that way."
Multiple contacts with Mayor Bloomberg's office via telephone and email seeking comment on Gardiner's allegations yielded no response.
H.R. 5005 specifically states that ATF trace data "shall not be admissible as evidence, and testimony or other evidence relying on the information shall not be admissible, in any civil action in a State or Federal court, or in any administrative proceeding other than a proceeding commenced by the Bureau of Alcohol, Tobacco, Firearms, and Explosives."
Bloomberg's efforts to sue gun manufacturers for the actions of criminals who misuse their products were thwarted recently when the "Protection of Lawful Commerce in Arms Act" became law. Gardiner hopes H.R. 5005 will stop cities like New York from misusing ATF trace data in lawsuits designed to cripple the legal firearms industry.
By Jeff Johnson
CNSNews.com Senior Staff Writer
http://www.cnsnews.com/ViewNation.asp?Page=\Nation\archive\200603\NAT20060331a.html
(CNSNews.com) - New York City's mayor is blasting a congressional proposal under which several temporary federal gun regulations would become permanent law. Michael Bloomberg claimed the legislation "would explicitly impinge on our ability to fight illegal gun trafficking, and it would result in the shooting deaths of innocent people." But an attorney who specializes in federal firearms laws calls Bloomberg's claims "patently false."
The House Judiciary Subcommittee on Crime Terrorism and Homeland Security met Tuesday to discuss the "Firearms Correction and Improvement Act" (H.R. 5005) introduced last week by Rep. Lamar Smith (R-Texas). Smith wrote the bill to permanently include in federal firearms laws a number of provisions that have been reenacted annually as "riders" to appropriations bills.
The portion of Smith's bill with which Bloomberg took issue is Section 9, entitled "Trace Disclosure." It makes permanent a ban on using so-called "crime gun trace data" collected by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) for any purpose other than criminal prosecutions and ATF administrative proceedings.
Bloomberg called that trace data "the single most powerful way to demonstrate unmistakable patterns of illegal conduct."
But attorney and firearms law expert Richard Gardiner challenged that description.
"That assumes that trace data is meaningful in indicating that [firearms] dealers are involved in selling guns that are used in crimes," Gardiner told Cybercast News Service. "And the problem with that is that the trace data does not include all guns used in crimes, that is to say, not all trace guns are 'crime guns' and not all 'crime guns' are traced."
In fact, a law enforcement agency request for ATF to trace the ownership of a firearm - from manufacturer to distributor to retailer to buyer - does not necessarily indicate that the firearm was used in the commission of a crime or even that it was illegally possessed.
Gardiner cited multiple examples of firearms that were not true "crime guns" being traced at the request of law enforcement agencies, including weapons found in the homes of deceased people who lived alone and stolen firearms recovered by police. In both examples, traces are conducted not because the firearms are "crime guns" but because law enforcement agencies want to return them to their rightful owners.
Still, Bloomberg argued that the data from those traces can help identify willful misconduct on the part of gun dealers.
"It's pretty simple," Bloomberg said, "gun dealers with inordinately large numbers of traces to crime guns are gun dealers that make it their practice to sell to straw purchasers." (A "straw purchase" is when a person legally entitled to own a firearm purchases it on behalf of another person who is prohibited from possessing any gun either because of a felony conviction or other disqualifying factor. Such sales are a criminal violation of federal law.)
Gardiner said Bloomberg's conclusion is not supported by facts.
"Even if there were straw sales, straw man sales being made from dealers, that doesn't prove that the dealer was doing anything wrong," Gardiner argued. "There's no evidence from tracing, because of the problems with tracing, that dealers are selling guns unlawfully. The trace couldn't indicate that and, in fact, doesn't indicate that."
Gardiner cited the case of a gun dealer he is currently representing who was charged with conspiring to facilitate three straw purchases. All three of the buyers admitted under cross examination that the gun dealer knew nothing about their illegal actions and that they went to great lengths to conceal the straw purchases from the gun store's staff.
"So, the fact that there are straw sales going on from a dealer doesn't mean the dealer is doing anything wrong," Gardiner suggested. "Mayor Bloomberg's theory is that, if straw sales are being made at that dealer's premises, [the dealer is] committing a crime when, in fact, he's the victim."
Bloomberg also chastised supporters of the bill, claiming that it would, "actually treat police officers like criminals."
"Under the terms of H.R. 5005, a detective who shares ATF trace information with another state government for use in a license revocation hearing against a rogue dealer would be committing a federal felony - a crime punishable by up to five years in prison," Bloomberg complained. "In other words, if an NYPD Detective talks to a New Jersey State Trooper about a problem gun dealer problem, that Detective could go to jail."
Gardiner called Bloomberg's charge "an absolute fabrication."
"There's nothing in this bill that has anything to do with criminal penalties," Gardiner said. "All it does is prohibit the disclosure of trace data information by ATF to anyone other than law enforcement.
"Even if ATF violated it, it's not a criminal violation. It probably should be, but it's not," Gardiner continued. "It just says ATF can't do it, but it doesn't provide any penalty if they do."
Gardiner believes one sentence in Bloomberg's testimony reveals the mayor's real objection to the bill.
"By forbidding the use of trace data in civil and administrative proceedings," Bloomberg complained, "H.R. 5005 would make it far more difficult to bring civil suits against rogue gun dealers."
Those lawsuits, Gardiner contends, are designed to put allegedly "rogue" gun dealers out of business even after they have been cleared of any wrongdoing by the ATF and the criminal courts.
"I think that's the real issue because that's what they wanted [trace data] for and that's exactly what the bill prohibits," Gardiner said. "It's about bringing suits against gun dealers and trying to shut them down that way."
Multiple contacts with Mayor Bloomberg's office via telephone and email seeking comment on Gardiner's allegations yielded no response.
H.R. 5005 specifically states that ATF trace data "shall not be admissible as evidence, and testimony or other evidence relying on the information shall not be admissible, in any civil action in a State or Federal court, or in any administrative proceeding other than a proceeding commenced by the Bureau of Alcohol, Tobacco, Firearms, and Explosives."
Bloomberg's efforts to sue gun manufacturers for the actions of criminals who misuse their products were thwarted recently when the "Protection of Lawful Commerce in Arms Act" became law. Gardiner hopes H.R. 5005 will stop cities like New York from misusing ATF trace data in lawsuits designed to cripple the legal firearms industry.