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EDITORIAL: ATF gone wild

Another bureaucracy breaks the law to enforce it

- - Wednesday, March 19, 2014

When President Obama rewrote inconvenient parts of his very own Obamacare law, he undermined more than health care. The attitude of "we can do what we want" trickles down to the lowliest federal agencies. That's what several federal judges are saying about the schemes of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

The ATF is the Rodney Dangerfield of law enforcement; among its peers it "don't get no respect." So the agency devises creative ways of proving itself, if only to itself. For example, ATF agents posing as cocaine couriers in poverty-stricken neighborhoods of Los Angeles boasted of big plans to steal the narcotics they were supposed to deliver. They did this to goad "small-time crooks" into joining a high stakes fake "stash house" raid to obtain fake cocaine. The hoods would then be arrested.

Agents are allowed to infiltrate a criminal enterprise, but this sting constituted what a federal judge called an outrageous fishing expedition. "In these stash-house cases," said U.S. District Judge Otis D. Wright II, "the Government's 'participation in the offense conduct' is what makes them particularly repugnant to the Constitution. Everything about the scheme — and therefore almost everything bearing upon a defendant's ultimate sentence — hinges solely on the Government's whim."

Threatened with stiff drug penalties, few perps challenge the charges, and federal prosecutors add easy convictions to their trophies. No drugs were taken off the street. "That's the problem with creating crime," observed Judge Wright, "the Government is not making the country any safer or reducing the actual flow of drugs." The judge dismissed all charges against defendants, saying: "The time has come to remind the Executive Branch that the Constitution charges it with law enforcement — not crime creation."

Lack of concern for the law was evident on Saturday when ATF agents raided Ares Armor, a gun accessory store in Oceanside, Calif., that sells what are called "80 percent" lower receivers. These are chunks of polymer that, with extra machining and a lot of additional parts, can become a functioning AR-15 rifle. Without the extra parts and labor, it's a harmless piece of plastic.

The ATF insisted that the empty plastic shape constitutes a firearm, and agents ordered Ares Armor to hand over its entire customer list for their examination. The store refused, asking for a restraining order against the federal agents, and got one.

"Having reviewed the materials submitted," wrote U.S. District Court Judge Janis L. Sammartino, "the Court hereby orders that any steps to deprive Ares Armor of the Property shall not be executed until after the Court holds a hearing as to whether a preliminary injunction should issue." Judge Sammartino then told the parties to appear Thursday for a hearing on the injunction.

Those words are plain and unambiguous, yet before the hearing the federal prosecutors twisted the judge's arm into adding a sentence clarifying that the order "does not enjoin lawful criminal proceedings." The change rendered the original order meaningless, and the agency seized thousands of dollars worth of items from the store.

The ATF said it couldn't wait a few days for a fair court hearing and had to act. But to what end? As in the fake stash-house scheme, nothing illegal was taken off the streets. Instead, many law-abiding customers of this business are entitled to wonder whether the next knock at their door is an agent looking to confiscate a piece of plastic.