THE LIBERTARIAN ENTERPRISE
Number 733, August 11, 2013
Over the next several years, the most
important issue in American history will
be decided. Freedom or non-freedom.
LAPD's Hypocrisy About Gun Prosecutions
Special to L. Neil Smith's The Libertarian Enterprise
The Los Angeles Police Department (LAPD) is extremely aggressive in enforcing federal, state, and local firearm regulations. In fact, years ago it created its very own "Gun Unit" that is dedicated to investigating and prosecuting violations of firearm laws. Since its creation, the LAPD Gun Unit has earned a notorious reputation for being unduly aggressive in prosecuting these cases, and for interpreting the confusing, numerous, and complicated California and federal firearm laws extremely broadly. Simply put, the LAPD attempts to criminalize as much firearm related activity as possible. In doing so, it has made criminals out of lots of well-intentioned and harmless civilians.
For years our office has defended our clients in and out of court from the Gun Unit's proclivities. We have resisted the LAPD's efforts to push criminal charges against people for inadvertent violations of firearm laws or for acts that are not clearly (or even likely) criminal. Rarely, if ever, did LAPD express concerns about making sure our clients' acts were criminal or not an innocent mistake.
So it came as a surprise to us to read an article in the Los Angeles Times that the LAPD now says it needs help from the federal government's lawyers to determine whether LAPD SWAT officers violated federal firearm laws by purchasing and reselling special edition Kimber brand pistols. These special edition Kimber handguns were made specifically for LAPD SWAT officers. But those officers apparently then resold the firearms for profit to other LAPD officers and to civilians. The problem? If the officers who originally ordered the guns intended to resell them from the start, they likely violated federal law by lying on the federal 4473 firearm purchase form. And if they did it more than once for profit, they likely violated the law by failing to have the required federal firearm dealers license needed to resell firearms.
Ironically, the laws that cover these resales really aren't that complicated, especially when compared to many other gun laws LAPD has unhesitatingly interpreted and enforced against civilians. The main one is 18 USC § 922(a)(1)(A), a federal statute that prohibits "Engaging in the Business of Dealing in Firearms Without a License."
What does "engaging in the business" mean? Federal law allows a person to sell firearms without a license up to a certain point. But once a person establishes a pattern of sales, selling guns repeatedly, the person can be considered "engaged in the business" of selling firearms. At that point the person needs to have a federal firearms license.
The courts have made fairly clear what constitutes a violation of 18 USC § 922(a)(1)(A), explaining that the government must show the defendant:
"was not a licensed dealer, that he 'devote[d] time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms,' 18 U.S.C. § 921(a)(21)(C), and that he acted with knowledge that his conduct was unlawful."
United States v. Allah, 130 F.3d 33, 45 (2d Cir. 1997).
So whether the LAPD SWAT officers violated federal law could turn on several questions, including, for example, whether they made repetitive purchases and resales of the special edition Kimber pistols, and if so, whether they had profit as a motive. Of course, there is plenty of legal precedent and case law to aid the LAPD and prosecutors in answering these questions. See for example this legal memorandum (.pdf) from Michel & Associates. Perhaps they can't find it? More likely, they found it and didn't like what it says.
There is another element to this case that makes it potentially even more egregious: the person who exposed the reselling of the Kimber pistols -- LAPD Lieutenant, Officer in Charge of the Armory, Armando Perez -- may have been retaliated against for having done so. In a whistle blower lawsuit he has filed against the City and the LAPD, Perez alleges that after he requested an investigation into the Kimber pistol sales, fellow officers filed complaints against him. He received a five-day suspension, and he was ostracized and threatened at work. Perez's lawsuit reveals a troubling fact. The Internal Affairs investigation into the Kimber pistols resulted in a mere 39-page report, while the report into complaints against Perez was 257 pages. This fact is even more troubling in light of the Inspector General's subsequent report concluding that the Internal Affairs' investigations into the Kimber pistol matter had been "deficient."
It is infuriating that LAPD is so reluctant to judge its own officers' conduct as criminal without input from the FBI. Not because the officers deserve to be prosecuted, they don't. But, it is because when it comes to prosecuting civilians, LAPD has routinely relied on its own employee's (non-lawyers) opinions (who are cross-designated as both LAPD officers and ATF (federal) agents) to pursue criminal cases against people for alleged violations of firearm laws without having any such reluctance.
Had civilians done what these LAPD SWAT officers are alleged to have done, LAPD would not hesitate. It would have issued press-releases about their arrests, supplied mug-shots and photos of the seized guns to the media, and labeled the sellers as "dangerous gun runners." But the shoe is on the other foot. Now that it is LAPD's officers being investigated, suddenly LAPD thinks the law is unclear and the officers deserve the benefit of the doubt.
What makes this situation even more curious is the fact that Sacramento Sheriffs' Department deputies were charged by federal prosecutors for practically identical conduct. http://www.foxnews.com/us/2012/06/01/california-sheriff-deputies-accused-illegally-selling-weapons
One of those deputies has already pleaded guilty and his status conference for sentencing is scheduled on August 29.
The other deputy being charged is currently scheduled for a jury trial on December 2, but that could change at his August 8 status conference. Why Sacramento deputies are being aggressively prosecuted, while LAPD officers are getting a pass so far, is confounding.
To be clear, the point is not that these officers should be prosecuted. They shouldn't be. The fact that they may be considered to be dealing firearms illegally even though they made all transfers through licensed dealers shows how enforcing this law can lead to absurd results. This wasn't a notorious criminal enterprise selling guns to bad guys. These were collectable firearms being sold to collectors. But if LAPD routinely pursues cases against law-abiding and well-intentioned civilians based on legal interpretations that lead to injustice, their own officers should suffer the same fate. No double standards!
Police are not above the law, and civilians should not be held to a higher standard of understanding the law than those who should know better; in fact, the exact opposite should be the case.
The take away from this should be that firearm laws are generally harmful to the law-abiding, and do not protect the public from the truly dangerous. This LAPD case, and the Sacramento case showing police officers (most likely) inadvertently violating the law, demonstrate that. But again, while these dumb laws remain on the books, there should be no double standards.
Our office has submitted to LAPD requests for records concerning this matter under California's Public Records Act, most of which were denied as seeking "privileged information." But we are awaiting response on additional records requests, which we will make available on www.CalGunLaws.com if and when we receive them.