Thanks to Pat Watson for transcribing article to ASCII --------------------------------------------------------------------------- THE GUN OWNERS LETTER VOLUME 16, NUMBER 3 * JUNE 20, 1997 HATCH, FEINSTEIN BILL THREATENS GUN OWNERS. CONGRESS 'GANGING UP' ON THE BILL OFRIGHTS. BY DAVID KOPEL ASSOCIATE POLICY ANALYST CATO INSTITUTE Imagine the following scenarios: Every week a group of office workers bet money on NFL football games, in an office betting pool. A father and a mother take their teenage children target shooting every weekend one summer. The teenagers use their parents' handgun, under parental supervision. Although the teenagers are under continuous parental supervision, the teenagers do not possess and keep in their possession at all times a written note from their parents authorizing them to possess a handgun at the target range. Three adult men often go hunting together, and like to tinker with their rifles. One afternoon they put a folding stock on one of their rifles, to make it easier to carry in the field. Another day, they put a muzzle brake on the rifle, to make the follow-up shot more accurate. All of the above activities are already federal crimes. S.54 would substantially increase the penalty for all these crimes, by defining the persons who did any of these things as a "criminal street gang" engaged in a "pattern of criminal gang activity." Every one of the persons described in the above scenarios would be imprisoned for a minimum of 10 years. All property associated with the crime (such as the hunting lodge, all of the guns, the cars that carried the guns, and the office computers which tracked the football betting) would be forfeited to the federal government. How can it be that a bill bearing the attractive title of "Federal Gang Violence Act" can impose many draconian, patently unjust penalties on persons who have nothing to do with gangs? The answer, oddly enough, is that every thing gangs do--such as sell controlled substances, kill rival gang members, and steal property--is already illegal under state and federal law. Because the enactment of legislation is often confused with genuine actions, enacting "anti- gang" legislation may have a strong political appeal--even when the criminal law has already covered everything that gangs do. When there are a few substantive laws which can be added(e.g., murder and drug dealing are already illegal), legislatures may be tempted to create what might be called "second order laws." That is, laws which take existing laws, arrange those existing into new combinations, and create new "crimes" out of the new combinations. For most part, S.54 is a second order law. It takes exiting federal criminal laws--many of them for very minor crimes--and creates new crimes-- with severe penalties--built of the bricks of trivial crimes. In an era when hardly any Congressperson carefully reads and studies the text of every bill he or she is voting on, second order laws are especially dangerous. Because the impact of the bill depends heavily on the content of other laws, which are only briefly referenced, many legislators may not understand the implications of S.54's severe penalties. SO-CALLED "CRIMINAL STREET GANGS" The bill was introduced by Senators Orrin Hatch (R-UT) and Dianne Feinstein (D-CA), among others. Entitled the "Federal Gang Violence Act," it should deal only with gang violence. But most of the crimes which are labeled as "gang" crimes are not violent crimes. The vast majority of the persons who are covered by the law are not gang members. And the bill addresses other subjects- -such as the possession of handguns by teenagers, or the wearing of body armor by anyone--which sometimes involve gangs, but which usually do not. A "criminal street gang" is defined in Section 3 of the bill as a "formal or informal," ongoing group, club, organization, or association, or association of 3 or more persons" who meet certain requirements. There is a difference between a genuine gang(such as the Crips)--which typically has dozens or thousands of members--and a mere group of friends. Three juvenile delinquents may spend a lot of time together, and even commit various crimes together, but they ae not a real gang. (The three are, of course, still criminals, and can be punished for violating whatever laws they violate.) The very broad definition of 'criminal street gang" makes it very easy for almost any association of there people, including almost any business, to be labeled a "criminal street gang," providing that at least one person in the group commits two "predicate gang crimes" in a five- year period, and offenses are in some way "committed in connection with, or in furtherance of" the group. Most people who hear the phrase "predicate gang crimes" would think of drive-by shootings, fencing stolen property, first degree assault, and a few other major violent felonies. But S.54 defines "predicate gang criimes" to include a vast number of minor or non-violent crimes, many of which are paperwork offenses, which real gang members--generally illiterate--would never commit. For example, one of the five sub-sections listing a "predicate gang crime" includes any federal firearms offense, any federal gambling offense, and defaming the dead. The entire federal Gun Control Act of thrown in as a predicate gang offense. Notably, the Gun Control act does not define any violent crimes. Rather, the act defines possession of a gun under various conditions as a crime, bans some guns, and establishes a complex regulatory system for licensed firearms dealers. To state the obvious, a federal licensed firearms dealer is not a "criminal street gang." He operates out of a storefront, not on a street. But the kinds of paperwork offenses, generally misdemeanors, which a store might commit are labeled "gang" crimes. Many other minor firearms offenses would be turned into "predicate gang crimes." For example: It is illegal ( and it would therefore be a "predicate gang offense") to put certain accessories, such as a folding stock or a bayonet lug, on an imported gun [18 U.S.C. 922(r)]. It is illegal to take your own children target shooting with a handgun unless the children carry a permission note from you at all times. Even if the children are carrying the note, it is illegal if they transport the unloaded handgun to a target range in a case, and they do not lock the case [18 U.S.C. 922(x)]. It is illegal even to hold a gun in your hands if you were once convicted of a domestic violence misdemeanor, or if you have used drugs within the last several months [18 U.S.C. 922(g)]. It is illegal to have a gun in your car for protection if your car comes within a thousand feet of a school. It is no defense to this crime to point out that your state's laws specifically authorize carrying a gun in a car for protection, and no permit is needed to so carry [Gun Free School Zones Act of 1996]. Simply put, this clause amounts to a sub rosa repeal of the Firearm Owners Protection Act of 1986. Enacted in response to copious testimony about abusive prosecution, the bill lowered the penalties for various paperwork offenses. This clause turns all those minor offenses into "predicate gang crimes" carrying a 10-year mandatory minimum. FIREARMS AND RICO: THE METZENBAUM LEGACY S.54 also revives legislation sponsored in 1988 by then-Senator Howard Metzenbaum (D-OH)-- one of the most energetic foes of the Second Amendment ever to serve in the U.S. Senate; turning every violation of the Gun Control Act (including a conspiracy to violate) into a RICO predicate offense. Of the many anti-gun provisions in this bill, section 6 is the most important. The RICO statute is one of the most powerful in the entire federal code. RICO prosecutors are granted enormous powers; forfeiture provisions are heavily weighted in favor of the government; sentences run up to 20 years. The attorney general is granted sweeping subpoena power to investigate potential RICO violations. And private plaintiffs are granted extensive rights to sue, to obtain broad injunctions, and to recover attorney fees. And S.54 turns even the tiniest violation of federal gun laws into a RICO predicate. S.54 is a dream-come-true for anti-gun lawyers determined to destroy firearms manufacturers, wholesalers, and retailers through litigation. Indeed, even individual gun owners could be sued by anti-gun groups. PROHIBITIONS RELATED TO FIREARMS Currently, federal law imposes an unworkable, inappropriate ban on the possession of handguns by minors [18 U.S.C. 922(x)]. The conditions under which minors should possess handguns ought properly to be set by each state, taking into account the conditions in each state. Rules that might make sense in Manhattan might be inappropriate for Montana. There are some exceptions allowing juveniles to possess handguns while ranching or farming, or engaged in lawful target shooting or hunting. But even then, the juvenile must have prior written permission from his or her parents, and must carry that permission at all times while in possession of the handgun. It would be a mistake to think that teenagers helping on their parents' ranches and farms are actually complying with this silly statute. On the ranch, they do not carry around prior written permission. Off the ranch they may carry a handgun in their pickup truck for protection while driving on isolated rural roads at night, as people in their family have for many generations. It is doubtful that most farmers and ranchers even know of the federal statute. Currently, fedreal law provides a penalty of up to one year for an adult who violates the statute, and no penalty for the juvenile. Section 7 of S.54 imposes a mandatory sentence of at least one year on adults and on juveniles aged 14 or older. If there is something to be gained by sending teenage farmers, ranchers and their parents to federal prison for one year,it is hard to discern. If there is no intent to imprison farm and ranch children, then there is no jutification for a mandatory prison sentence. MORE PROSECUTORS AND MORE FEDERALIZATION S.54 is not the type of bill which could become a good bill through revised drafting. Simply put, S.54 addresses crime, the overwhelming majority of which have no place in the federal criminal law. To the extent that S.54 relates to legitimate federal powers, all things which it criminalizes are already federal crimes. S.54 therefore makes no legitimate contribution to the federal criminal code. The sponsors of this legislation [Senators Hatch, Feistein, etc.] might note that they are concerned about actual gang violence, and not about the myriad of non-violent crimes discussed in this testimony. But the sponsors' intent is no defense at all to the applicationof this bill as written; if enacted, the bill will be applied as written. It is plain beyond doubt that Congress never contemplated abortion protesters when enacting the RICO statutes. But prosecutors do not enforce according to the literal text of the law. And because of the literal text of the law, Sammy Weaver, and William F. Degan are dead as the result of a federal law which makes it a felony just to process--without any violent purpose--a shot-gun whose barrel is too short. Nicole Richardson is serving a 10-year federal prison term just for answering the phone and telling an undercover federal agent where her boyfriend ( a drug dealer) could be found. * --------------------------------------------------- * Nicole Richardson was the girlfriend of an LSD dealer whose customers included and undercover federal agent. When the agent called the boyfriend's house one day, Richardson picked it up, and, in response to the agent/buyer's request, told the agent where to find the boyfriend, to make a purchase. Under federal drug laws, this participation in the "conspiracy" makes her criminally liable for the entire quantity of drugs which the agent bought from the boyfriend. Years after breaking up with the boyfriend, she ws charged with the conspiracy and is serving a 10-year mandatory sentence. ---------------------------------------------------- Especially when prosecutors can earn notches on their belts by winning convictions for long mandatory sentences, laws are applied as written. As a former appellate prosecutor, I know that most prosecutors push written statutes as far as the language can possibly go. Families Against Mandatory Minimums can supply hundreds of horror stories of harsh federal laws being applied just as written, against minor offenders. Significantly, S.54 appropriates 100 million dollars for extra prosecutors--twenty million a year for five years. All of the underlying offenses which are actually real gang crimes are already being fully prosecuted. There are no state or federal prosecutors in this country who are going soft on gang murders, gang arson, and the like. So at least some of the new prosecutors will necessarily have to look for "new" offenses to justify their funding. S.54 aggravates the problems that led to Waco and Ruby Ridge. As a "second order" law, it adds a second layer of federal control to a group of offenses which for the most part have no place in the federal statute books. The extreme mandatory sentences for minor offenses will not only cause injustice to many individuals, but will also further reduce the already low level of respect many Americans have for the federal government.