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Obama talks tough about gun control, but prosecutions plummet on his watch

Policy shift drives decline in ATF cases since Newtown tragedy

- The Washington Times - Wednesday, July 23, 2014

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 anti-gun 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 "cookie-cutter" 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."

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