Sen. Orrin Hatch (R-UT) has introduced S. 10 in hopes that it will "make a heck of a difference on the problem of juvenile crime in this country." Despite the author's intent, however, this bill treats gun owners like organized crime figures. Originally, S. 10 could have sent a gun dealer, manufacturer or owner to prison for up to 20 years for something as minor as two record-keeping errors.
Gun Owners of America (GOA) has focused considerable attention on S. 10, notifying Senate members of the problems in the bill. At the same time, GOA activists have sent thousands upon thousands of postcards, letters, e-mails and faxes to Senate offices opposing the bill.
After GOA staff contacted Senate offices with the problems in the bill, two Senators withdrew their names as cosponsor: Senators Wayne Allard (R-CO) and Bob Smith (R-NH). Other cosponsors told GOA they could not support the bill as it was then drafted. Note: Sens. Conrad Burns (R-MT), Craig Thomas (R-WY), Larry Craig (R-ID), Michael Enzi (R-WY), and Rod Grams (R-MN) became the most recent cosponsors to withdraw, bringing the total number of defectors to seven.
Facing pressure on all fronts, Sen. Hatch revised his bill and modified the most onerous provision in it. But S. 10 still remains a dangerous piece of anti-gun legislation. Consider the problems which remain in the version that was reported out of the Senate Judiciary Committee in July.
The most important provision in the bill (section 206) would apply the Racketeer Influenced and Corrupt Organizations Act (RICO) to a wide variety of firearms offenses, if the offense is committed by a person who knowingly furthers a federal offense that is a serious violent felony.
The chief danger of this provision, as reported from committee, concerns large gun manufacturers and dealers. Assume a victim of a shooting with a Tech 9, prodded by Handgun Control, sues Intertech under RICO. The victim alleges that Intertech transported and sold Tech 9's, with reasonable cause to believe that those weapons are disproportionately favored by criminal gangs -- and, therefore, with reasonable cause to believe that a disproportionate number of its products would be used to commit felonies. The victim further alleges that Intertech knew that its production of Tech 9's was facilitating federal offenses by these gang members constituting serious violent felonies.
If unsuccessful in civil and related criminal cases, Intertech could not only be required to pay crippling damages, its entire business could be forfeited as well. And its officers and directors could go to prison for up to 20 years.
If this sounds far-fetched, consider the fact that firearms opponents have recently announced that they intend, over the next decade, to use litigation to cripple the firearms industry in exactly the same way that lawsuits have crippled the tobacco industry, forcing an agreement by cigarette companies to pay over $365 billion in reparations.
Moreover, the anti-gun lobby has ALREADY started bringing these types of lawsuits against the gun industry -- even before getting any help from RICO provisions in S. 10 (with its treble damages afforded to activist lawyers).
The New Gun Week (June 20, 1996) reported how the anti-gun lobby dealt a crushing blow to a Nevada pawnshop:
In a move that could have a bearing on future product liability suits directed at firearms manufacturers or makers and sellers of gun-related products, a Nevada pawnshop has admitted its role in selling one of two TEC-DC9 semi-auto pistols used by Gian Luggi Ferri in the 1993 shooting of the San Francisco law firms of Pettit & Martin where eight died.
According to news reports . . . Camco Inc., parent company of Superpawn, the Las Vegas pawnshop, has agreed to pay victims' survivors of the 1993 shooting an estimated $150,000 in damages to settle a suit lodged against the retailer.
Phillip Emmons, an attorney for the pawnshop, said the settlement was "basically an economic decision."
Authorities were never able to determine where Ferri had purchased the second pistol.
In announcing the settlement, Dennis Hennigan, director of the Washington, DC-based Center to Prevent Handgun Violence, a sister organization of Handgun Control Inc. (HCI), said that, "Camco's willingness to settle the suit sends a message to other gun sellers that there is a cost associated with the sale of 'assault weapons' to the general public."
The tragic thing about this settlement is that the Nevada pawn shop probably could have won in court. Navegar, the other defendant in the suit, refused to settle out of court and later beat the charges (see "Suit Dismissed Against Maker of Murder Gun," in The New Gun Week, May 20, 1997).
But the pawnshop owners could not afford the potential damages that might be inflicted against them. Even though they were no more guilty than the hardware store that sells a crowbar to someone who uses it to commit a murder, the pawnshop felt it was an "economic decision" to give up some cash now, instead of giving up a bunch of cash during a long, protracted suit.
With the tremendously enhanced booty available in S. 10, one can expect two things will happen. First, more anti-gun lawyers will be willing to "roll the dice" and bring trumped-up charges against the gun dealers and manufacturers using the RICO provisions of S. 10. Moreover, the victims of this onslaught will be forced to settle out of court (like the pawnshop above) to avoid the tremendous treble damages that could be inflicted against them.
Could firearms manufacture and sales in America survive a comparable demand for reparations? It is unlikely.
One final point: It is true that it is currently unlawful to sell a firearm with "reasonable cause to believe" that it will be used in a felony. This provision has already caused legal nightmares for many firearms dealers.
Gun Owners Foundation has assisted honest gun dealers against BATF agents who have frequently argued that dealers "should have known" that the persons they sold guns to were felons using fake ID's. Clearly, "should have known" is a very low standard, and increasing the penalties (as S. 10 does) will only open the floodgates to prosecutions of the gun industry.
BUT while this "reasonable cause to believe" provision in the law has already been misapplied to gun dealers, it will only be the tip of the iceberg when one considers the legal abuses which will occur. Once the "plaintiffs' bar" (that is, lawyers who specialize in bringing lawsuits) realizes that it can reap huge profits by bringing lawsuits against gun dealers and manufacturers under the RICO provisions of S. 10, the gun industry might eventually have to buckle under.
The "Son of RICO" provisions (in section 203 of S. 10) are also troubling. If a group of five or more persons commits two or more of a list of gun offenses in connection with the activities of the group, the entire group will face RICO-like penalties, and be sent to prison for at least five years if it can be demonstrated that the violation was "a primary activity" of the group. (The "offenders" would be treated as a "criminal gang" and could face as much as 25 years in prison.)
The list of gun offenses triggering "Son of RICO" is almost identical with the list of offenses triggering RICO under S. 10.
For example, if a family regularly takes its three children pistol shooting -- and if the children fail to possess the written letter of permission required by law -- the parents would be subject to mandatory five-year prison sentences if a court found that the pistol shooting was "a primary activity" of the family. Does anyone want to risk between five and 25 years in prison in order to find out what this term means?
Likewise, this provision could be enforced against the gun industry. Under S. 10, the BATF could find that a gun dealer (or manufacturer) qualifies as a "criminal gang."1 The BATF can then send unsuspecting gun dealers to jail for 25 years if they sell two firearms when they supposedly should have known that the purchasers were prohibited by federal law.
As mentioned above, Gun Owners Foundation has already assisted honest gun dealers against BATF agents who have frequently used this "should have known" standard to sting gun dealers. Increasing these penalties (as S. 10 does) will only make such gun dealers a juicier target.
If this bill passes intact, gun dealers might as well hire a private investigator to check out prospective buyers. The penalties for not doing so will be immense -- twenty-five years in jail and the possible forfeiture of their business, firearms and home.
To be sure, these immense penalties will lead to additional BATF harassment. Even as far back as 1982, the Senate Subcommittee on the Constitution stated that "approximately 75 percent of BATF gun prosecutions were aimed at ordinary citizens who had neither criminal intent nor knowledge, but were enticed by agents into unknowing technical violations." (Emphasis added.)
As if the preceding provisions were not bad enough, there are other problematic provisions that endanger gun owners' rights. The committee-reported version of S. 10 would do the following:
* Punish Thought Crimes. S. 10 would create an across-the-board "conspiracy" crime whereby any "agreement" to engage in a violation of any gun law will be treated as harshly as if the crime were actually consummated (section 504). Technically, current law does require an overt act must accompany the "conspiracy." But what constitutes an "overt act" can be defined by prosecutors to include almost anything.
Consider what could happen if your neighbor, who is being stalked by her violent ex-husband, asks you -- a gun dealer -- to sell her a handgun without complying with the Brady Bill harassment period. You agree, but, as you are walking back to obtain a blank Form 4473, you think better of it, and refuse to sell her the gun. You could still be incarcerated for the same prison sentence as if you had actually sold the gun.
* Drag Dad from the target range and throw him into jail. Section 207 would increase to five years imprisonment the penalty for a parent who takes his son pistol shooting without a written note of permission -- which is required by 18 U.S.C. 922(x). At first glance, this provision may seem similar to the "Son of RICO" provision mentioned above. The above provision requires that five people be involved (such as a family or a group of families). But the section 207 provision only requires two people to be involved (for example, the parent and the child who receives the target pistol without the required written note).
* Lock-up your safety? The juvenile crime bill would require dealers to have trigger locks or comparable "safety devices" for firearms which they sell (section 503). While the federal government certainly has no Constitutional authority to require this, one wonders what will follow. After requiring such "safety devices" to be sold, the next step (which has already passed in several states) will be to require homeowners to store their firearms with such trigger locks in place. This would obviously make it difficult for gun owners to use their firearms in a self-defense emergency.
* Increase punishment for record-keeping mistakes. This bill would impose a five year prison sentence on a licensee for a negligent misstatement with respect to the transfer of a firearm to a juvenile or resident of another state (section 506). Of course, the problem here is that an honest record-keeping mistake could land a gun dealer in jail for five years. It bears repeating again what the Senate Subcommittee on the Constitution had to say in 1982: "approximately 75 percent of BATF gun prosecutions were aimed at ordinary citizens who had neither criminal intent nor knowledge, but were enticed by agents into unknowing technical violations." (Emphasis added.)
* Brandish a gun in self-defense; lose your gun? Finally, this bill would require the criminal forfeiture of a firearm used in connection with a crime of violence (sections 509). Most people think that "crime of violence" just refers to violent criminal acts, like robbery, murder, assault, etc. But federal law defines a "crime of violence" to include the "use, attempted use, or threatened use of physical force against the person or property of another" (18 U.S.C. 924(c)).
Decent gun owners have been charged with state counterparts of "crime(s) of violence" for merely brandishing their guns in self-defense. Such was the case in 1995, for example, when a Pennsylvania man took his licensed firearm from his glove compartment and merely laid it on his passenger-side seat in view of an individual who was attempting to force him off an interstate highway. The other person never even claimed that the man had pointed the gun at him. Nevertheless, state authorities charged the gun owner with intent to "brandish a firearm" and "threatening same which served no legitimate purpose." In essence, this law-abiding gun owner was charged with the Pennsylvania counterpart of a federal "crime of violence." Thus, in a similar situation where federal authorities have jurisdiction, S. 10 would now give such authorities the power to forfeit the gun owner's firearm.
One objection to this bill which still needs to be made is one of jurisdiction. With each crime bill it puts forth, Congress continues to usurp more and more of the states' authority. In September of 1996, The Washington Times noted that, "In just 220 years, Congress has increased its criminal jurisdiction from three crimes to more than 3,000. Is this a threat to federalism?"
Indeed, many are beginning to answer with a resounding "YES!" Pete DuPont, former governor of Delaware, correctly notes that bills like S. 10 will federalize state crimes. Writing in the June 2, 1997 issue of The Washington Times, DuPont states:
U.S. attorneys prosecute no more than a couple hundred juveniles a year. And crime, with just a few constitutional exceptions, is a state matter. So why is Congress making this a federal issue? Because people are concerned about crime and politicians believe passing a crime bill means votes. . . .
What is happening here is another federal seizure of state authority. Giving U.S. attorneys this measure of control over state courts is a significant, and unwarranted, broadening of federal power and diminishment of federalism principles.
Another opponent of federalizing crime is Edwin Meese, III, former Attorney General of the United States. Meese correctly noted in The Orange County Register on February 11, 1996:
Perhaps the most compelling reason to oppose nationalizing crime is that it contradicts constitutional principles. The drafters of the Constitution clearly intended the states to bear responsibility for public safety. The Constitution gave Congress jurisdiction over only these crimes: treason, counterfeiting, and piracy on the high seas and offenses against the law of nations.
In conclusion, there are many horrible provisions in S. 10. But even if these provisions are removed, advancing any crime bill (such as S. 10) will open up the possibility of Democratic anti-gun floor amendments. Based on last year's record (when the Lautenberg and Kohl gun bans easily passed), can we assume that anyone will take a firm stand against such amendments?