Politicians Push Anti-Gun Trafficking Bill, Bash New Law

By Jeff Johnson | July 7, 2008 | 8:22 PM EDT

(CNSNews.com) - Two northeastern lawmakers joined a small group of law enforcement administrators on Capitol Hill Tuesday to reintroduce legislation they argue will reduce the illegal flow of guns to criminals. But the news conference to promote the Anti-Gun Trafficking Act of 2006 quickly switched to an attack on a recently enacted law that protects the gun industry from lawsuits over crimes committed by others.

Rep. Peter King (R-N.Y.), chairman of the House Homeland Security Committee, said the bill he is reintroducing is intended to address the "scourge of gun trafficking in our country."

"This legislation will actually create a new federal crime of gun trafficking, make it a federal crime and give federal authorities the power, which they need, to go after gun traffickers," King explained. "It would also make it a new crime for criminals to use stolen firearms [or those] which have [obliterated] serial numbers."

Rep. Marty Meehan (D-Mass.), a member of the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security, also supports the anti-trafficking measure, which was originally introduced in 2003.

"It's our duty, in Congress, to do everything we can to make our streets safer," Meehan said. "If you ask any police chief anywhere, either the commissioner or the chief here, or anywhere in the country, they'll tell you that putting an end to gun trafficking is critical."

New York City Police Commissioner Ray Kelly told the congressmen that theoretical debates about the meaning of the Second Amendment are far removed from what he called "the most dangerous type of police work: undercover purchasing of guns from gun traffickers."

"There's a lot of rhetoric that goes along with taking guns off the streets," Kelly said. "But for those people who actually do take guns out of the hands of the wrong people -- the police officers of this country -- there's great risk and too often they lose their lives."

The bill is named in memory of New York Police Detectives James Nemorin and Rodney Andrews, who were murdered while working undercover as part of NYPD's gun trafficking task force.

Chief Mary Ann Viverette of the Gaithersburg, Md., Police Department also spoke at the event, representing the International Association of Chiefs of Police, of which she is also president. Viverette briefly praised the anti-trafficking bill, but then attacked another piece of legislation -- the Firearms Corrections and Improvements Act (H.R. 5005).

"H.R. 5005 would make our job more difficult by severely limiting the ability of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to share tracing information with state and local law enforcement agencies," Viverette claimed. "This legislation clearly has the potential to severely impede the investigation of criminal activities."

New York City Criminal Justice Coordinator John Feinblatt echoed Viverette's complaint.

"It's obvious that Chairman King understands the importance of trace data for law enforcement," Feinblatt argued. "But, as we've heard today, unfortunately, those in Congress who support bills like H.R. 5005 do not understand its importance."

But, as Cybercast News Service previously reported, H.R. 5005 contains no prohibition against the ATF sharing gun trace data with state and local law enforcement agencies for use in criminal investigations or prosecutions. The bill does prohibit the agency from sharing the data with state or local governments' civil attorneys for use in lawsuits or other administrative procedures against gun dealers.

In an interview for that report, attorney and firearms law expert Richard Gardiner challenged New York City's repeated attempts to cite the number of traced guns sold by a particular dealer as an indicator that the dealer was knowingly selling guns to traffickers.

"That assumes that trace data is meaningful in indicating that [firearms] dealers are involved in selling guns that are used in crimes," Gardiner said. "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."

Gardiner explained that when a law enforcement agency requests information on the ownership of a firearm -- from manufacturer to distributor to retailer to buyer -- from ATF, that trace does not necessarily indicate that the firearm was used in the commission of a crime or even that it was illegally possessed.

The pro-gun attorney cited numerous instances of firearms that do not meet that definition of a "crime gun" being traced at the request of law enforcement agencies.

Among the examples were guns retrieved from the homes of deceased individuals who lived alone and stolen firearms recovered by law enforcement. In both cases, the request for a trace comes not because the firearm is a "crime gun" but because investigators want to deliver the property to its rightful owner.

Feinblatt, however, attempted to link the promotion of the anti-trafficking bill to the attack on H.R. 5005 by promoting the very type of municipal lawsuit H.R. 5005 is intended to discourage.

He discussed a recent campaign by New York City Mayor Michael Bloomberg in which private investigators hired by the city were sent to out-of-state gun dealers to attempt to make illegal firearms purchases.

"Last month, New York City announced civil litigation against 15 gun dealers in five states for selling guns in typical straw purchases," Feinblatt said. "It was trace data that allowed the city to identify these 15 rogue dealers."

But retired ATF Deputy Assistant Director Wally Nelson, writing in Monday's New York Sun, called the city's alleged "investigation" a "headline-grabbing stunt" that "jeopardized over a dozen ongoing criminal investigations, putting law enforcement officers at risk."

"A suspect who suddenly finds out that a gun store he frequents is under surveillance will likely stop his activities. He also could violently turn on anyone he believes is an investigator; shop owners and employees are potential targets, too," Nelson wrote.

"The few gun store owners who are corrupt will be on their best behavior. Suspects and evidence may disappear, with weeks or months of investigative work being lost," Nelson added.

Kelly said he is aware of Nelson's complaints.

"Nobody has shown us any information that substantiates that," Kelly responded. "That information was put out fairly soon after the mayor announced this operation."

But Nelson said New York City's "misuse" of the gun trace data in targeting the gun dealers it is currently suing shows why "Congress put such records off limits to all but law enforcement."

"These restrictions must remain in place to prevent ATF's national firearms trace database from being misused in the public domain. The ill-considered use of trace data -- like conducting private investigations -- can be dangerous," Nelson wrote.

"Realizing a risk to law enforcement, Congress in 2003 restricted access to the data to law enforcement, saying it 'holds the potential of endangering law enforcement officers and witnesses [and] jeopardizing on-going criminal investigations,'" Nelson added.

Nelson noted that the ATF has historically worked well with the NYPD and that the federal agency is far from being "asleep at the switch," as Bloomberg has asserted.

"The number of defendants referred by ATF for prosecutions is up 170 percent since 2000, with a 14 percent increase in the number of convictions for illegal firearms trafficking in just the past year," Nelson noted.

"Criminal firearms violence is a problem that ATF attacks vigorously, with assistance and cooperation from local law enforcement and the firearms industry. ATF is equipped to handle it. The city should let it," added Nelson.

Bloomberg initiated the investigations into allegedly "rogue" gun dealers after Congress passed the Protection of Lawful Commerce in Arms Act, (S. 397). The law prohibits lawsuits against gun makers, distributors, marketers and dealers for the illegal actions of third parties unless those entities aided in the commission of the crimes or were negligent in their legal duties.

King's anti-trafficking bill would also increase the federal penalties for drug traffickers who possess or use firearms during the commission of drug-related crimes. He said that he is "somewhat optimistic" about his chances to get the bill passed.

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