ATF Sees 'No Evidence of Misconduct' in Gun Show Stings

Jeff Johnson | July 7, 2008 | 8:05pm EDT
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( - Federal agents did not use racial or sexual profiling during sting operations at gun shows in Richmond, Va., according to the official in charge of field operations for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

Michael Bouchard, assistant director of field operations for the bureau, told members of Congress Tuesday that his agents broke no laws and violated no one's civil rights.

Bouchard told the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security that ATF has conducted its own probe of the allegations, first reported by Cybercast News Service, and found no wrongdoing.

"Our internal review has shown no evidence of misconduct or any concerns reflecting negatively on the integrity of our agents or our [other law enforcement agency] partners," Bouchard said.

Bouchard also declared that accusations of racial and sex-based profiling leveled by show promoters, gun dealers and show attendees were "totally false.

"I listened to the allegations of racial profiling that were leveled against ATF and I can assure you they have no basis in fact," Bouchard said. "Our focus is on disrupting criminal activity without regard to the race [or] gender of those who appear to be engaged in unlawful acts."

As Cybercast News Service previously reported, numerous individuals claiming to be eye-witnesses or victims accused agents of targeting women, African-Americans and, in particular, African-American women for special scrutiny.

"If a woman showed up at my table, she was surrounded by law enforcement," said John White, a former law enforcement officer who now works as a gun dealer. "Every woman that makes a purchase, every woman who comes to my table to buy a gun was automatically [treated as] a 'straw purchaser.'"

A "straw purchaser" is an individual who can legally purchase a firearm, but who does so with the intent to illegally provide it to an ineligible buyer such as a convicted felon or an illegal alien. "Straw purchases" are illegal, and Bouchard said they had become a major problem at Richmond-area gun shows.

"ATF's presence was necessary because criminals have been using Richmond gun shows as a source of firearms for years," Bouchard said. "Between 2002 and 2005 more than 400 firearms sold by federally-licensed dealers - also known as FFLs - sold at Richmond gun shows were recovered in connection with criminal activity, including homicides. Of this total, more than 300 were recovered in the Richmond area alone."

ATF addresses specific complaints

Between May 2004 and Aug. 2005, city and county police officers acting under the direction of ATF agents conducted 302 "residency checks" on gun buyers who were awaiting the results of their background investigations at Richmond gun shows. Officers would go to the address the gun buyer listed on the ATF Form 4473 "Firearms Transaction Record Part I - Over-The-Counter," to determine whether the gun buyer really resided at that address.

Bouchard said the 302 checks reportedly conducted involved only eight percent of the total sales at the shows and yielded 47 "bogus addresses."

Some of the targets of those residency checks complained about officers informing their family members and even neighbors of their presence at the gun show and their plans to purchase a firearm. Rep. Louie Gohmert (R-Texas), a former prosecutor, asked Bouchard if it is "appropriate for an officer doing a residency check to knock on a neighbor's door and say, 'Your neighbor is buying a gun and I need to know if they actually live there?'

"Wouldn't it be more appropriate to say, 'We're just doing a background check and wondered if these people [live here],'" Gohmert asked, "without saying they're buying a gun or sharing any other information?"

Bouchard replied that some gun buyers' family members were falsely denying that the buyer lived at their address for reasons unrelated to the firearm purchase.

"That was giving us what we call 'false positives,' [because] they'd say 'No, he doesn't live here,'" Bouchard explained. "We would then stop the sale of that gun.

"So we, then, had to practice telling people, 'This is why we're here. We have no other concerns. We're not looking to do anything else,'" Bouchard continued. "We had the same response [from neighbors]. 'Why are you asking?' So we made it a standard practice just to tell them, 'They're looking to buy a firearm. We're trying to verify their residence.'"

Gohmert also asked Bouchard if the information contained on the state and federal forms gun buyers complete as part of the purchase is confidential.

"No, sir," Bouchard responded.

But, as Cybercast News Service previously reported the federal law concerning the licensing of gun dealers appears to contradict Bouchard's claim. Title 18 Section 923 of the U.S. Code) contains the following restrictions on the information collected during the process of a gun purchase:

"(g)(3)(B) Except in the case of forms and contents thereof regarding a purchaser who is prohibited by [federal law] from receipt of a firearm, the department of State police or State law enforcement agency or local law enforcement agency of the local jurisdiction shall not disclose any such form or the contents thereof to any person or entity, and shall destroy each such form and any record of the contents thereof no more than 20 days from the date such form is received."

Rep. Bobby Scott (D-Va.), who represents the Richmond area, pressed Bouchard about ATF's legal authority for the residency checks.

"It's a general investigative tool that we use," Bouchard responded. "There's no specific authority to do that."

The subcommittee learned that ATF agents confiscated 50 firearms that had been purchased at the gun shows and have since returned 15 of those. Ten remain unclaimed by their owners and the remaining guns are being held as evidence in criminal cases against the 25 people prosecuted as a result of the multi-year operation.

Bouchard conceded that those who had their guns confiscated were "probably not" told that they had the right to have an attorney present during the meeting and to refuse to answer agents' questions "because it was not a custodial situation.

"If they chose to bring counsel with them, but it was not going to be an arrest or a custodial situation," Bouchard said. "They were free to come and go as they pleased."

But ATF agents gave each person who had a firearm confiscated a letter explaining that the seizure was the result of an alleged violation of federal law. The letter informed the gun buyer when and where to meet with ATF officials to explain their purchase and threatened arrest if they did not appear.

Bouchard acknowledged, for the first time during Tuesday's hearing, that the letter is "meaningless.

"It's basically telling you when to come into our office to talk," Bouchard said. "You're not obligated to. If you don't show up there's not a darn thing we can do about it unless we're going to arrest you for the [alleged] crime for which we seized your gun."

Bouchard assured the congressmen that "ATF does not condone [the letter] and I've never seen it used before, nor will it ever be used again."

"What they should have done is given them a receipt and a business card instead of this letter," Bouchard said, "because this letter serves no purpose."

But Gohmert asked Bouchard how ATF justified confiscating guns from buyers - with or without the letter - prior to an arrest being made or a warrant being issued.

"If they had probable cause to believe that a 'straw purchase' had occurred ... they had probable cause to both arrest that person on the spot and seize that gun," Bouchard argued. "Because it was either on a roadside or in the middle of a gun show or a parking lot, they would seize the gun and tell the person [to come to the ATF office the next business day to defend the purchase]."

"So, basically, this was a probable cause 'arrest' of the gun?" Gohmert asked.

"It was a probable cause seizure of the gun," Bouchard acknowledged.

Gohmert confirmed to Cybercast News Service that law enforcement officers generally do not have the authority to seize private property without a warrant unless they are making an arrest and the property seized is evidence supporting the arrest. Since no arrests were made at the time of the gun seizures, Gohmert questioned their legality.

ATF practices didn't meet 'best practices'

Bouchard believes that the complaints from gun show promoters, vendors and attendees are the result of changing tactics to combat "straw purchases."

"We had changed our practices from reacting to straw purchases and, blatant 'straw purchases,' to more proactive," Bouchard said. "We would walk the floor and, if we saw blatant straw purchases, we would try and stop those before we occurred."

He acknowledged that "some techniques used in our Richmond operations were not implemented in a manner consistent with ATF's best practices.

"In this isolated incident, we have determined that we could have done better by having the law enforcement command post and briefings off-site of the gun show, and by not utilizing a letter to convey possible violations of laws when guns were taken into custody and by more thoroughly explaining the parameters for residence checks," Bouchard said.

Bouchard said ATF conducts such sting operations at approximately two percent of the more than 5,000 gun shows held throughout the nation each year.

"Except for the issues surrounding the Richmond gun show operations on August 13 and 14, 2005, we have not received any complaints regarding this important element of our firearms enforcement program," Bouchard said.

As Cybercast News Service reported in a Feb. 17 follow-up report, numerous individuals who attended gun shows in the Pittsburgh area claim to have been targeted by similar tactics.

Bouchard said that the number of guns bought from FFLs at Richmond gun shows later connected to crimes has been reduced as a result of the stings. The numbers were 156 in 2003, 129 in 2004 and 57 in 2005.

"Many of these same people had bought other guns that turned up in crimes," Bouchard said. "The word got around on the street that you could go to these shows, use a bogus address and, if you bought a gun, they couldn't trace it back to you."

Subcommittee Chairman Howard Coble (R-N.C.) described ATF's tactics as "heavy-handed," but expressed his satisfaction that Bouchard understood the severity of the claims. Rep. Steve Chabot (R-Ohio) said he wants more information about the individuals targeted for residency checks and gun confiscations to make sure that law-abiding citizens' rights are not being violated."

View related stories:
ATF, Virginia Police Accused of 'Persecuting' Gun Shows
Records Confirm at Least Seven ATF Gun Show 'Stings'
Gun Show Owner, Patrons May File Civil Rights Suit
Congress Told of ATF Seizures, Threats to Gun Buyers

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