Lethal Passage (19 page)

All this, however, adds up to a reactive orientation that helps bolster the culture of nonresponsibility in the firearms industry, with
the unintended effect of leaving all but the most blatantly crooked dealers free to push the limits of the law.

In fairness, ATF stands in an almost untenable position.
It must police the nation’s 245,000 licensed firearms dealers—known in the industry as FFLs, or Federal Firearms Licensees—with only four hundred inspectors, each of whom must also conduct inspections of wineries, liquor distributors, distilleries, breweries, tobacco producers, and the country’s 10,500 explosives users and manufacturers.
This ratio of inspectors to licensees is an improvement, by the way, over the rough-and-ready 1960s when only five inspectors faced the daunting task of inspecting the records of one hundred thousand gun dealers.

At the same time, the agency finds itself obliged by law to grant a firearms license to virtually anyone who asks for one, provided the applicant has $30 to cover the licensing fee.
In 1990, 34,336 red-blooded Americans applied for an FFL. ATF denied licenses to only 75. Another 1,408 withdrew or abandoned their applications, yielding a combined rejection/withdrawal rate of about 4 percent. If the current rate of licensing continues, the number of FFLs will double through the 1990s to well over half a million licensed weapons dealers, even though the fortunes of domestic arms manufacturers are likely to continue their current decline. Increased competition for the shrinking gun-consumer dollar can only increase the already prevalent tendency among dealers to do only the minimum required by law to keep guns out of the wrong hands.

Depending on one’s stance in the gun debate, the application process is either too stringent or appallingly lax. An applicant doesn’t have to demonstrate any firearms knowledge, not even whether he knows the difference between a revolver and a pistol, a .44 or a .45. It is much harder to get a license to operate a powerboat on the Chesapeake Bay, to become a substitute teacher in New Jersey, or to get a California driver’s license—far, far harder to get a
Maryland permit to carry a single handgun or a license to hunt in Maryland’s forests—than it is to get a license that enables you to acquire at wholesale prices thousands of varieties of weapons and have them shipped right to your home.
Roughly half the federal firearms licensees don’t maintain a bona fide store, according to ATF, but operate instead out of their homes. Some of these “kitchen-table” dealers sell guns at gun shows, but many don’t deal guns at all; they hold a license simply to buy their guns at cheap wholesale prices. A small but obviously important segment use their licenses to buy guns wholesale for distribution to inner-city arms traffickers.

“We’re not in the business of putting people out of the firearms business,” said Anthony A. Fleming, chief of ATF’s firearms and explosives operations branch, in charge of dealer licensing and inspections. “If people qualify for a firearms license, by law we have to issue them a license.”

But federal law, at least on paper, also insists that anyone who receives a license must actually engage in the business of selling firearms. In practice, however, Fleming concedes there is little ATF can do to compel a licensee to become a legitimate commercial business. “We can’t force him to advertise,” Fleming said. “We can’t say you’ve applied for a license and by the end of two years you have to have at least ten sales. Your retort, immediately, would be, ‘I’m open for business, I’ve got my door open, anybody comes in here I’m ready to sell them a gun.’ There’s nothing we can do about that.”

He added that some licensees who operate from their homes do run sophisticated dealerships. “I’ve seen residential dealers with a better setup and better inventory than a commercial business. And then I’ve gone into commercial places and found only five or six guns in there. You wonder why they’re paying rent. But they’re allowed to have a license and be in the business.”

A look at ATF licensing records can turn up some surprising revelations about who among us are licensed gun dealers. Licensed dealers turn up everywhere, even on the quietest streets in the best neighborhoods.
My ATF printout of Maryland dealers identified 334
in Baltimore alone, yet the 1992–93 yellow pages for Greater Baltimore listed only eighteen established dealers and pawnshops. Among the dealers not listed in the phone book were two entities with the intriguing names Make My Day Guns and Shalom Services Company.

A
Los Angeles Times
reporter, David Freed, acquired the roster of Los Angeles County licensees and found the list included a Chinese baker, a survivalist, a fertility specialist, a school policeman employed by the Los Angeles Unified School District (he listed school offices as his licensed place of business), a man who told Freed he had experienced “multiple personality changes,” and an agent of the U.S. Drug Enforcement Administration (he listed DEA headquarters in Los Angeles). The list also included a former soldier dishonorably discharged from the Army and arrested on burglary and concealed-weapons charges whose licensed premises was a hotel room.

My neighbors may not want to hear this, but on May 15, 1992, I set out to join this none-too-exclusive club and applied for my own Federal Firearms License. The two-page application, ATF form 7, asked which grade license I wanted. There are nine levels, costing from $30 to $3,000, the latter qualifying the holder to import “destructive devices” such as mortars, bazookas, and other weapons with a barrel-bore diameter of half an inch or more. The form asked the same nine questions about my criminal past that appear on form 4473. It also asked what other business would be pursued at my “business location,” in my case, my home. I wrote “communications,” typically a catchall category for journalists, advertisers, writers, and others. It also asked my business hours—I listed ten to five-thirty, Monday through Saturday. The form then asked: “Are the applicant’s business premises open to the general public during these hours?”

I thought about this one. If I ever did get down to actually selling guns, of course I would admit my customers. But they would have to ring the bell first and I would have to be home, but yes—they’d have the run of the place or at least my office, where my FFL is currently
openly displayed as per federal regulations. It is taped to my wall, above my official National Rifle Association membership card.

I received my license on June 22, 1992, well within the forty-five days in which ATF is required to accept or deny an application.

No one called to verify my application. No one interviewed me to see if in fact I planned to sell weapons or not. There was no federal requirement that I first check with authorities in Maryland and Baltimore about specific local statutes that might affect my ability to peddle guns in the heart of my manicured, upscale, utterly established Baltimore neighborhood. As far as the federal government was concerned, I was in business and could begin placing orders for as many weapons as I chose. In short, I could supply an urban army with modern, high-powered weapons of state-of-the-art lethality, and ATF wouldn’t know anything about it. The bureau would not know, that is, unless the weapons began turning up during arrests by ATF agents or local police, or unless ATF inspectors conducted a routine compliance audit. Federal law allows ATF to do only one such audit a year of each licensee, unless the agency has a specific investigative reason for doing more.

In one crucial area, federal firearms law explicitly favors gun dealers over consumers.
Any consumer who knowingly makes a false statement or representation during a firearms transaction, as Curtis Williams found when he bought a gun for Nicholas Elliot, automatically commits a felony and faces a fine of up to $5,000 and a prison term of up to five years. Yet any Federal Firearms Licensee—a dealer, manufacturer, importer, or distributor—who commits the same offense faces a maximum fine of only $1,000 and imprisonment for not more than one year. In short, the consumer commits a felony; the dealer a misdemeanor. The distinction is crucial. A dealer convicted of a mere misdemeanor can still keep his Federal Firearms License; if convicted of a felony, he cannot.

In cases where dealers are suspected of knowingly and willfully selling guns to crooks and traffickers, ATF can be a tenacious, sly, and forceful investigator. The agency is fond of saying that dealers
who commit such violations will get caught sooner or later, once the ATF National Tracing Center at Landover, Maryland, detects evidence of their wayward dealings. Indeed, in the 10 percent of crimes where law-enforcement officials actually request a federal trace, the tracing network often proves an effective investigative tool both in solving crimes and for identifying renegade dealers. There is a fundamental problem with this approach, however: by the time the tracing center does get involved, the guns in question have been used in crime, typically serious crime involving assault, homicide, or narcotics peddling. ATF gets another notch in its holster, the illegal dealer is put out of business, but society is left to tend its wounds—grief, disability, surgical bills, lost income, psychic trauma, and the increasingly pervasive feeling that one is not safe in one’s own home.

At times through its history ATF has tried to take a more proactive stance toward regulating the flow of firearms. The agency is immensely proud of the lawmen it counts as its ancestors, in particular Eliot Ness, the legendary commander of “The Untouchables.” Walk into the offices of many senior ATF officials and you’ll find a framed poster from the 1987 movie
The Untouchables
, which starred Kevin Costner and Sean Connery. The ATF press office provides reporters with a packet of background information on the bureau, including a one-page biography of Ness.

Only by understanding how ATF evolved from a tax-collection agency to the nation’s sole firearms cop can one come to understand the complex relationship between the bureau and the firearms industry, and why no federal entity saw a need to examine Guns Unlimited’s role in the arming of Nicholas Elliot.

The Bureau of Alcohol, Tobacco and Firearms became the nation’s enforcer of federal firearms laws largely by default.
ATF traces its roots as far back as 1791, when Congress imposed the first federal tax on distilled spirits, an act that promptly led to the Whiskey Rebellion of 1794. Congress periodically repealed and levied alcohol
taxes until 1862, when it created the Office of Internal Revenue and made the tax a formal, permanent part of the government’s income. The office deployed three agents to enforce the law.

On January 16, 1919, the Treasury Department became far more deeply involved in law enforcement when Nebraska cast the last vote necessary to ratify the Eighteenth Amendment to the Constitution, banning the manufacture, sale, and transport of alcoholic beverages. The national Prohibition Act, also known as the Volstead Act for Minnesota congressman Andrew J. Volstead, placed responsibility for enforcing the amendment with the commissioner of Internal Revenue because of the department’s prior role as collector of alcohol taxes and enforcer of violations of the alcohol tax laws.

The amendment may have crimped the supply of booze, but it did nothing to diminish America’s thirst. Underworld entrepreneurs throughout the country sought to satisfy demand by building illegal distilleries and saloons. The amendment guaranteed them a large clientele: while it outlawed the production and distribution of booze, it allowed consumers to own, drink, and even buy alcoholic beverages without penalty. Gangs fought each other for control of the underground distilleries and distribution networks and paid a substantial portion of their profits to local officials and police to help protect their interests.

What ATF neglects to tell in its fact sheets and its biographic handout on
Eliot Ness is that agents of Treasury’s Prohibition Unit were themselves notoriously corrupt. They received abysmally low salaries, which Robert J. Schoenberg, author of the 1992 biography
Mr. Capone
, called an “invitation to corruption.” The agents’ behavior heartened the leaders of Chicago’s Prohibition gangs, who found they exhibited, as Schoenberg puts it, “an almost Chicagoan capacity for corruption.”