Pol­icy shift drives de­cline in ATF cases since Con­necti­cut ram­page

The Washington Times Weekly - - Front Page - BY KELLY RID­DELL

While Pres­i­dent Obama de­cries gun vi­o­lence and presses for more laws to re­strict own­er­ship, his Jus­tice De­part­ment has pros­e­cuted 25 per­cent fewer cases re­ferred by the main law en­force­ment agency charged with re­duc­ing firearms vi­o­lence across the coun­try, a com­puter anal­y­sis of U.S. prose­cu­tion data shows.

Fed­eral prose­cu­tors brought a to­tal of 5,082 gun vi­o­la­tion cases in 2013 rec­om­mended by the Bureau of Al­co­hol, To­bacco, Firearms and Ex­plo­sives, com­pared with 6,791 dur­ing the last year of Ge­orge W. Bush’s pres­i­dency in 2008, ac­cord­ing to data ob­tained from the Ex­ec­u­tive Of­fice of U.S. At­tor­neys.

The 2013 to­tals rep­re­sent a 42 per­cent de­cline from the record num­ber of 8,752 pros­e­cu­tions of ATF cases brought by the Jus­tice De­part­ment in 2004 un­der Mr. Bush, ac­cord­ing to the data.

Syra­cuse Univer­sity’s Trans­ac­tional Records Ac­cess Clear­ing­house, re­garded as one of the pre­mier re­searchers on fed­eral prose­cu­tion per­for­mances and trends, an­a­lyzed the data at the re­quest of The Wash­ing­ton Times.

U.S. at­tor­neys have been slow­ing gun pros­e­cu­tions even fur­ther, with 2,598 brought in the first seven months of this fis­cal year. The pace of ac­tiv­ity puts the Jus­tice De­part­ment on track to pros­e­cute the fewest ATF cases since 2000, well be­fore the drug gang wars in Mex­ico sharply in­creased vi­o­lence on both sides of the border.

“We have this irony. The Obama ad­min­is­tra­tion, which is ask­ing for more in the way of gun reg­u­la­tions — in terms of in­creased back­ground checks for pri­vate sales and at gun shows — is ac­tu­ally pros­e­cut­ing less of the gun laws al­ready on the books,” said Robert Cot­trol, a gun con­trol his­to­rian at Ge­orge Wash­ing­ton Univer­sity. “For a lot of peo­ple, there’s more ide­o­log­i­cal cache ha­rass­ing Bubba at the gun show than get­ting a han­dle on gun crime.”

The data con­trast with Mr. Obama’s procla­ma­tions af­ter the deadly shoot­ing sprees at a New­town, Conn., ele­men­tary school and an Aurora, Colo., movie the­ater that he would take ev­ery step pos­si­ble to stem firearms vi­o­lence.

“We should get tougher on peo­ple who buy guns with the ex­press pur­pose of turn­ing around and sell­ing them to crim­i­nals. And we should se­verely pun­ish any­body who helps them do this,” the pres­i­dent de­clared in the im­me­di­ate af­ter­math of the New­town tragedy.

Though the ATF has been the pri­mary agency to com­bat il­le­gal gun traf­fick­ing, the data di­rectly from the 94 fed­eral ju­di­cial district of­fices across the coun­try show that the num­ber of pros­e­cu­tions of cases from ATF has gone down since Mr. Obama made his prom­ise in Jan­uary 2013. ATF-re­lated pros­e­cu­tions fell from 5,935 in 2012 to 5,082 in 2013, and are on track to fin­ish around 4,500 this year, the data show.

The num­ber of cases de­vel­oped by the ATF also is plum­met­ing. The agency be­came the fo­cus of wide­spread crit­i­cism in 2011 when it ad­mit­ted that agents know­ingly al­lowed hun­dreds of semi-au­to­matic weapons to slip across the border and into the hands of drug gangs in Mex­ico in a bun­gled in­ves­ti­ga­tion known as Op­er­a­tion Fast and Fu­ri­ous.

Cases rec­om­mended for prose­cu­tion by the ATF have de­clined from a high of 17,877 in 2004 un­der Mr. Bush to 12,066 last year, ac­cord­ing to the data com­piled by Syra­cuse Univer­sity and re­viewed by The Times.

Fed­eral prose­cu­tors, cur­rent and for­mer ATF agents and gun law re­searchers told The Times that the down­ward trend in ATF-re­lated pros­e­cu­tions pri­mar­ily re­flects a Jus­tice De­part­ment shift away from track­ing down one-off vi­o­lent of­fend­ers and to­ward pros­e­cut­ing more com­pli­cated reg­u­la­tory-type cases, which take longer to de­velop.

“Within the later part of the Bush years, case se­lec­tions within the ATF have gone from mostly vi­o­lent crime cases — which is their forte — to­ward the reg­u­la­tory, where they look at deal­ers, man­u­fac­tur­ers and traf­fick­ing cases,” said Robert San­ders, a for­mer ATF as­sis­tant direc­tor. “The agency’s phi­los­o­phy has shifted to guns are the prob­lem and ac­cess to guns are the prob­lem, rather than the crim­i­nal be­ing the di­rect in­di­ca­tor of crime.”

Cur­rent ATF agents, who spoke to The Times only on the con­di­tion of anonymity be­cause of fears of re­tal­i­a­tion, said the Jus­tice De­part­ment has be­come risk-averse un­der Mr. Obama, es­pe­cially af­ter the Fast and Fu­ri­ous scandal.

“The cur­rent cli­mate within ATF is: ‘Let’s take a step back and not go af­ter too many hard-hit­ting vi­o­lent crime cases that use in­for­mants or un­der­cover agents,” one ATF agent said. “We can’t just go it alone any­more, or even lead a case. We need buy-in from ev­ery­body: lo­cal law en­force­ment, other agen­cies. Then, and only then, are we able to sell it in­ter­nally and will the U.S. at­tor­ney come on­board.”

Obama ad­min­is­tra­tion officials de­fend their record of gun law en­force­ment. An ATF of­fi­cial re­ferred The Times to a re­cent Govern­ment Ac­count­abil­ity Of­fice re­port that stated: “ATF is fo­cus­ing more on the most vi­o­lent crim­i­nal threats and on us­ing crim­i­nal in­tel­li­gence data to bet­ter tar­get vi­o­lent crime than it did in fis­cal year 2003.”

The agency also cited staffing short­ages brought on by se­ques­tra­tion. Ac­cord­ing to in­ter­nal sta­tis­tics, though, the agency has as many em­ploy­ees now as it did in 2004, when the surge in cases be­gan.

Jus­tice officials said they pre­fer to use in­ter­nal gun sta­tis­tics rather than the Syra­cuse Univer­sity anal­y­sis, even though the data were pro­vided by the of­fice of U.S. at­tor­neys.

But even Jus­tice De­part­ment sta­tis­tics show a marked de­cline in pros­e­cu­tions orig­i­nat­ing from ATF cases — about 28 per­cent since 2004. Even when smaller gun cases against drug deal­ers are added, the Obama ad­min­is­tra­tion’s fig­ures show a 20 per­cent de­cline in Jus­tice De­part­ment pros­e­cu­tions as re­ferred by the ATF since 2008.

David Burn­ham, a co-direc­tor and co-founder of Syra­cuse’s clear­ing­house, said what­ever sta­tis­tics ad­min­is­tra­tions pre­fer, data from the ex­ec­u­tive of­fice of U.S. at­tor­neys his­tor­i­cally have pro­vided the fairest mea­sures of per­for­mance.

“Ac­cu­rate, com­plete in­for­ma­tion about the per­for­mance of the govern­ment is an es­sen­tial part of demo­cratic govern­ment,” Mr. Burn­ham said. “Un­for­tu­nately, the record shows that in case af­ter case the of­fi­cial claims and press re­lease and con­gres­sional tes­ti­mony of many agen­cies — whether from the IRS, the FBI, the [Drug En­force­ment Ad­min­is­tra­tion] or the ATF — of­ten fail to pro­vide such in­for­ma­tion. And in al­most all ad­min­is­tra­tions, Repub­li­can or Demo­cratic, the of­fi­cial records that have been pre­sented don’t help the pub­lic un­der­stand whether the agen­cies are achiev­ing their stated goals.”

Shift to white-col­lar crime

Le­gal an­a­lysts say U.S. prose­cu­tors have sim­ply shifted their at­ten­tion from gun crimes — which were pri­or­i­ties un­der the Clin­ton and Bush ad­min­is­tra­tions — to more com­pli­cated fed­eral is­sues such as white-col­lar crime, im­mi­gra­tion, and cor­po­rate and govern­ment fraud un­der Mr. Obama. In many cases, fed­eral prose­cu­tors now leave gun crimes to lo­cal au­thor­i­ties, where states have the same pros­e­cu­to­rial rights.

“In a lot of ju­ris­dic­tions, U.S. at­tor­ney of­fices don’t want very much to do with these [gun] cases,” said David Kennedy, direc­tor of the Cen­ter for Crime Pre­ven­tion and Con­trol at John Jay Col­lege of Crim­i­nal Jus­tice in New York City. “In the eyes of a lot of fed­eral prose­cu­tors, they’re mun­dane and de­classe. They would much pre­fer to work other kinds of cases — non-street-crime kinds of is­sues that are longer-term and more com­pli­cated, in­volved cases. They’re more than happy to go af­ter a mafia or­ga­ni­za­tion rather than one person for car­ry­ing an il­le­gal pis­tol.”

U.S. at­tor­ney’s of­fices also are in­flu­enced on case se­lec­tion by their boss, cur­rently At­tor­ney Gen­eral Eric H. Holder Jr., who has taken a dif­fer­ent ap­proach than his Repub­li­can pre­de­ces­sors.

In 2001, Mr. Bush es­tab­lished Project Safe Neigh­bor­hoods within the De­part­ment of Jus­tice. The pro­gram pro­vided fund­ing to help lo­cal law en­force­ment, U.S. at­tor­neys and ATF agents crack down on street crime and pros­e­cute gun of­fend­ers. In 2004, they recorded the high­est level of fed­eral gun pros­e­cu­tions in 20 years.

Since Mr. Obama took of­fice, vi­o­lent crime rates have abated, which may have led the ad­min­is­tra­tion to re­di­rect re­sources to prob­lems such as white-col­lar crime. Some of the big­gest head­lines out of Mr. Holder’s de­part­ment have been a $7 bil­lion set­tle­ment with Cit­i­group Inc. over its han­dling of mort­gage-backed se­cu­ri­ties and a $13 bil­lion set­tle­ment with JPMor­gan Chase & Co. — the big­gest U.S. bank. Other high-pro­file cases have in­cluded hedge fund SAC Cap­i­tal Ad­vi­sors over in­sider trad­ing and the in­dict­ments of Chi­nese hack­ers, which gleaned in­tel­lec­tual prop­erty from U.S.-based com­pa­nies.

“You have to think of U.S. at­tor­ney’s of­fices as be­ing the hub and all the other var­i­ous agen­cies are the spokes,” said Bob Driscoll, a deputy as­sis­tant at­tor­ney gen­eral for civil rights dur­ing the Bush ad­min­is­tra­tion. “Every­one is pitch­ing cases to them, say­ing, ‘Take my case.’ They’re sort­ing through them, and they’re not nec­es­sar­ily an­ti­gun prose­cu­tion.

“Pri­or­i­ties show up in these sta­tis­tics be­cause every­one wants to please their boss. You’re go­ing to take the cases that the pres­i­dent and the at­tor­ney gen­eral em­pha­size.”

Mr. Holder his­tor­i­cally has gone against ag­gres­sive pros­e­cu­tions of gun cases at the fed­eral level.

Mr. Bush’s Project Safe Neigh­bor­hoods was based partly on Project Exile, which be­gan in Rich­mond, Vir­ginia, in the late 1990s. It was partly the brain­child of U.S. At­tor­ney James B. Comey, who has since be­come direc­tor of the FBI.

The idea be­hind Project Exile was to fed­er­ally pros­e­cute peo­ple caught with il­le­gal guns and to send them, if con­victed, to prison for five years with­out plea bar­gain­ing or pa­role. Lo­cal officials cred­ited the pro­gram for chang­ing crim­i­nal be­hav­ior and re­duc­ing homi­cides by one-half in just one year.

At the time of Project Exile, Mr. Holder was deputy at­tor­ney gen­eral. He called the pro­gram a “cook­iecut­ter” ap­proach to fight­ing crime and said it was “fun­da­men­tally wrong” to ear­mark funds for en­forc­ing fed­eral gun laws.

Sen. Chuck Grass­ley of Iowa, the rank­ing Repub­li­can on the Se­nate Ju­di­ciary Com­mit­tee, raised the is­sue dur­ing Mr. Holder’s con­fir­ma­tion hear­ing in 2009.

“I’m con­cerned about Mr. Holder’s re­luc­tance to ex­pand pro­grams that en­force cur­rent gun laws, such as Project Exile,” Mr. Grass­ley said. “I don’t un­der­stand why Mr. Holder is will­ing to con­sider the need for new gun laws and reg­u­la­tions, when we could be em­brac­ing a na­tion­wide ex­pan­sion of a proven, suc­cess­ful pro­gram en­forc­ing ex­ist­ing gun laws.”

Although, Mr. Bush’s Project Safe Neigh­bor­hoods con­tin­ues at the De­part­ment of Jus­tice, it hasn’t been a pri­or­ity on Mr. Holder’s watch.

Cul­ture shift

The ATF also has un­der­gone a cul­tural shift since merg­ing its reg­u­la­tory divi­sion, which mostly in­cluded govern­ment bu­reau­crats fo­cused on gun reg­istries and dealer ap­provals, with its law en­force­ment divi­sion, which in­cluded ac­tive po­lice of­fi­cers fo­cused on vi­o­lent street crime, Mr. San­ders said.

Over time, the law en­force­ment guys would leave the agency. They typ­i­cally have a 20-year ca­reer span, whereas the reg­u­la­tory bu­reau­crats would stay and of­ten make it to the top lev­els of lead­er­ship, with the abil­ity to in­flu­ence re­sources and caseloads to­ward their fa­vored work. Of the past six ATF di­rec­tors, in­clud­ing cur­rent direc­tor B. Todd Jones, only two — Ron­nie Carter and Edgar Domenech — have had law en­force­ment ex­pe­ri­ence at the street level.

“The cul­ture within the ATF — the dom­i­nant force — the driver of pol­icy within the agency is for more reg­u­la­tion,” Mr. San­ders said. “Re­wards and pun­ish­ments are geared to­ward it, lead­er­ship is on­board with it, so now it’s more or less be­come a reg­u­la­tory agency.”

In­deed, among the fastest-grow­ing ATF charges in terms of Jus­tice De­part­ment pros­e­cu­tions is Ti­tle 26, U.S. Code Sec­tion 5845, which in­volves taxes on mak­ing firearms, ac­cord­ing to Syra­cuse Univer­sity data. Pros­e­cu­tions are up 243 per­cent over the past five years and 129 per­cent this year alone.

Another statute gain­ing trac­tion is pros­e­cut­ing gun charges un­der the Hobbs Act, which takes aim at the in­ter­state com­merce of firearms. It is on track this year to be­com­ing the third most pros­e­cuted gun statute, com­pared with the fifth most fre­quently in­voked five years ago, seventh a decade ago, and 13th two decades ago.

Although an un­law­ful act with a firearm and car­ry­ing an il­le­gal firearm re­main the most fre­quent cases brought by the ATF, they are get­ting harder to make in­ter­nally, said agents who wanted to re­main anony­mous for fear of re­tal­i­a­tion.

“This is not a vi­o­lent crime ad­min­is­tra­tion — not by any stretch of the imag­i­na­tion,” said an ATF field of­fi­cer based in the West. “In­ter­nal man­age­ment and U.S. at­tor­neys seem to be risk-averse. They’re wor­ried about ATF mak­ing mis­takes, es­pe­cially when it comes to un­der­cover agents and in­for­mants. Un­for­tu­nately, that’s where we’re most ef­fec­tive.”

Af­ter the Fast and Fu­ri­ous gun-run­ning scandal, agents have found it more dif­fi­cult to sell their cases to U.S. at­tor­neys and have had to abide by more in­ter­nal rules and reg­u­la­tions, the agent said, and their own su­per­vi­sors are turn­ing down field cases more than ever be­fore.

There is also bad press. USA To­day pub­lished a se­ries that ex­posed ATF home in­va­sion tech­niques in which un­der­cover agents and in­for­mants work to en­tice sus­pects to rob fake drug stash houses. Once the sus­pect agrees to the of­fer, the re­port said, law en­force­ment of­fi­cers go in for the sting.

A num­ber of fed­eral judges have dis­missed the op­er­a­tion, mak­ing it harder for agents to per­suade U.S. prose­cu­tors to take their cases.

A fed­eral ap­peals court in Chicago called the stings tawdry and said the op­er­a­tion “seems to be di­rected at un­so­phis­ti­cated, and per­haps des­per­ate de­fen­dants who eas­ily snap at the bait.” This year, a U.S. District Court judge in Los An­ge­les said in a rul­ing that an ATF sting went too far, “en­snar­ing chron­i­cally un­em­ployed in­di­vid­u­als from poverty-rid­den ar­eas.” The agency has taken note. “The cases that are be­ing adopted are the ones that in­clude the lit­tlest amount of risk,” said the cur­rent ATF agent. “So it’s dis­heart­en­ing. But I keep telling my line agents not to be dis­cour­aged. We need to con­tinue to build the best cases and go af­ter the most vi­o­lent of­fend­ers be­cause even­tu­ally, things will change. Yes, we’ve made mis­takes, and we’ve taken those on the chin. But we’re still the best when it comes to vi­o­lent crimes.”


Pres­i­dent Obama, ac­com­pa­nied by Vice Pres­i­dent Joseph R. Bi­den, wel­comed chil­dren who wrote about gun vi­o­lence. Af­ter the deadly shoot­ing sprees at a New­town, Conn., ele­men­tary school and an Aurora, Colo., movie the­ater, Mr. Obama said he would take ev­ery step pos­si­ble to stop such tragedies. Pros­e­cu­tions of gun vi­o­la­tions, how­ever, have de­clined dur­ing his ad­min­is­tra­tion.


“Guns are the prob­lem and ac­cess to guns are the prob­lem,” said Robert San­ders, a for­mer as­sis­tant direc­tor of the fed­eral Bureau of Al­co­hol, To­bacco, Firearms and Ex­plo­sives. He said a pol­icy shift in the Jus­tice De­part­ment un­der At­tor­ney Gen­eral Eric H. Holder Jr. has down­graded the pur­suit of crim­i­nals with guns as a pri­or­ity.

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