We're not prosecuting gun stores
There are new tools to stop gun trafficking. Let's use them.
Welcome to “The Background Check,” a rundown of gun safety policy insights. If you don’t know us (👋) we’re Evergreen, a policy and comms firm with a specialty in gun violence prevention issues. We hope these monthly emails spark ideas and highlight opportunities for you to engage. Have feedback? We’d love it! Find this valuable? Share our sign-up page within your org. Hate it? We’re sorry (and feel free to unsubscribe).
By Corey Ciorciari, Molly Voigt, Jacquelyn Katson, and Arman Abrishamchian
The Bipartisan Safer Communities Act (BSCA) was the most significant piece of federal GVP legislation passed in decades. But one part of the BSCA you don’t hear much about these days are the law’s gun trafficking and straw purchasing provisions. So we decided to take a closer look. The upshot: There’s a big opportunity for DOJ to get more creative.
Back when the BSCA was signed, experts thought making gun trafficking and straw purchasing federal crimes for the first time would open up a new front in the fight against illegal guns. Prosecutors would finally address the flow of crime guns at their source by policing gun sellers (and not just end-users) for the first time.
And if you read the headlines, that seems to be what’s happening. But while DOJ has charged roughly 100-200 defendants with “new BSCA offenses,” the vast majority of those charges could have been brought had the BSCA never existed. (Check out our case tracker of all publicly available cases).
How’s that possible? To answer that question you need to understand three things about federal gun prosecutions:
Pre-BSCA, federal prosecutors almost exclusively focused on gun possession, not trafficking. The numbers are staggering: 88% of defendants charged with federal gun crimes between 2000-2016 were charged with unlawful possession. And it wasn’t just who was charged, it was who was investigated. In 2016, only 8% of federal gun crime investigations focused on unlawful sales or transfers. Only 1% focused on business-type offenses by gun stores, or federal firearms licensees (FFLs).
But wait…it turns out those numbers are a bit misleading. While it’s true the vast majority of charges were brought for illegal possession, some were brought against individuals because they were suspected of gun trafficking. Like John Gotti and tax fraud, prosecutors were charging for a crime they could prove (illegal possession) to hold people accountable for activity that, pre-BSCA, wasn’t technically criminal (gun trafficking). Something similar was happening with straw purchasing. While “straw purchasing” was not explicitly illegal pre-BSCA, basic elements of the activity were, including lying on a background check form, misleading an FFL, and making false statements in connection with a gun purchase. Prosecutors just charged those.
While prosecutors used “possession” crimes to police gun trafficking and straw purchasing by individuals pre-BSCA, they couldn’t reach gun stores. You can’t really charge a gun store with illegal gun possession. Stores don’t have hands (or prior felony convictions that make possessing a gun illegal). And while there were crimes to charge the buyer in a straw purchase, there were no real options to charge the seller, or FFL.
That was a BIG problem. Corrupt gun dealers are the single largest gun trafficking channel in the US. These dealers make false statements on sales records, fail to conduct background checks, and knowingly sell to straw purchasers.
The BSCA’s superpower is that it finally allows prosecutors to go after FFLs because trafficking and straw purchasing no longer need to be charged as illegal possession or paperwork violations.
But of the 124 publicly available charges DOJ has brought under the BSCA’s new gun trafficking provision, we only found four against FFLs. All the others are against individuals.
That means DOJ has an enormous opportunity to go after law-breaking gun stores. Just to get technical: Prosecutors can charge gun stores – not just buyers – for straw purchase sales (18 U.S.C. § 922(d)(10-11)). For the first time, they can prosecute FFLs for selling guns to those prohibited under state law, not just federal law (18 U.S.C. § 933). And they can look for violations of state laws regulating general business activity – such as public nuisance laws (think Big Tobacco litigation) – and use those state-level crimes to charge an FFL for federal gun trafficking (18 U.S.C. §933).
The point is corrupt gun stores have evaded accountability for too long, but because of President Biden, prosecutors now have the tools to change that.
POLICY DOCKET
An Opportunity post-Rahimi: We were surprised SCOTUS signaled they’ll uphold federal gun restrictions for those subject to domestic violence restraining orders. But even if the Court does side with sanity, it’ll still be unclear who is covered by DV gun restrictions under federal law post-Rahimi (do the restrictions apply to boyfriends? Live-in dating partners?). While the BSCA tried to answer that question, ATF can still provide further clarity.
Here’s one idea on how: Issue a rule clarifying certain relationship factors — including cohabitation, relationships lasting 6+ months, or engagements — are sufficient to trigger gun prohibitions.
“In The Business” of Circular Arguments: On December 7th, comments closed on ATF’s proposed rule clarifying who is “engaged in the business” of selling firearms – and thus, who must conduct background checks under federal law. The NRA’s 19-page comment opposing the rule was chock-full of platitudes all corporate interest groups throw at the wall to block regulations (it’s too broad! It’s burdensome! It doesn't align with the statutory text!).
But the Gun Lobby also came up with a clever trick to spook the ATF: At every turn, they claimed the ATF was making “presumptions.” They used the word 52 times! But “presumption” is not in the Administrative Procedure Act. It’s a smokescreen. An NRA invention to make it sound like the ATF is creating – and breaking – some legal standard when in reality all they’re doing is interpreting the law (AKA doing their job). Our advice: Ctrl-F and replace every NRA mention of “presumption” with “interpretation” and their comment looks as weak as their finances.
Using the First Amendment to Expand the Second: The hot new legal trend industry groups are experimenting with is how to use the First Amendment to block regulations. The most extreme example: A federal judge in California blocked a children’s privacy law on the grounds Big Tech companies have a First Amendment right to collect data on kids. The reasoning has big implications for gun regulation in that it frames a corporation’s business activity – in this case, collecting and monetizing data – as speech.
Gun sales as speech?: In NRA v. Vullo, the Gun Lobby (with the help of the ACLU) is making a similar argument. They claim New York violated the First Amendment in warning insurers about the risks of offering policies like “Carry Guard” – an NRA-endorsed insurance plan that covers shooting someone with criminal intent. Can warnings about the harms of a product by an enforcement agency constitute a First Amendment violation? We’ll see.
BIDEN’S STRONG SUPPORT
Our friends at Navigator are out with new polling on President Biden’s main accomplishments and something interesting jumped out to us: Outside of healthcare, the President’s work on gun violence generates the highest intensity of support of any Biden accomplishment.
It’s not just the public who are big fans. Republican Governors Glenn Youngkin and Mike DeWine touted investments their states made with money President Biden secured in the BSCA. And Governor Greg Abbott’s education department praised President Biden’s law for providing “historic funding” for school safety in Texas.
STATESIDE
CVI in Schools: A great new report by Senator Gillibrand found BSCA funding helped schools hire 14,000+ new mental health workers. But the BSCA isn’t just funding school counselors, it’s also funding school-based community violence intervention (CVI) programs. That was the U.S. Department of Education’s intention when they released guidance encouraging states to invest funding from the BSCA’s $1 billion Stronger Connections Grant Program into CVI-type programs.
The Education Department’s efforts are working: The guidance they released has filtered down to states like Wisconsin, South Carolina, and Montana — all of which specifically encouraged school districts to invest in CVI when they released their own guidance.
Under the Hood of State Byrne-SCIP Plans (Minus Florida): The BSCA created the Byrne State Crisis Intervention Program (Byrne-SCIP), providing states $750 million over five years to improve extreme risk laws and bolster gun safety efforts. We dug into how states plan to use the funds: only 14 are planning to invest in extreme risk law implementation, 21 are investing in specialized court-based programs, and 16 are investing in gun safety public education. Oh, and Ron DeSantis is the only governor in America turning away free safety funding. Florida didn’t bother to submit a plan.
Heads up: DOJ is requiring states to formally certify their extreme risk laws meet the BSCA’s due-process requirements before using Byrne-SCIP funding to implement them. Formal certification isn’t required by the BSCA and advocates should make sure states don’t hit the panic button and redirect the funding to other uses.
Maine’s Post-Shooting ERPO Uptick: Following the mass shooting in Lewiston, Maine, data showed there was an uptick in utilization of the state’s “yellow flag” law (similar concept to a so-called “red flag” law, but with more obstacles). We took a look at the data and confirmed the utilization rate in Maine increased by about 17.5% following the tragedy (from about 7.1 x 100k people to 8.4 x 100k).
Mass shootings shouldn’t be a stand-in for public education: It shouldn’t take a mass shooting to make communities aware of extreme risk laws, but Lewiston shows that’s clearly what’s happening. States should take note and direct resources (like Byrne-SCIP funds!) towards public education campaigns on how to access gun safety tools.
DON’T MISS
Freakonomics | Do the Police Have a Management Problem
Featuring Jens Ludwig
Ms. | Opinion: “Upcoming SCOTUS case exposes domestic violence victims to new risks”
By Angelina Rosado and Chethan Sathya
CNN | Opinion: The Supreme Court may make America’s gun violence problem even worse
By Shannon Watts