Here is an article from the Wall Street Journal on the city of chicago lawsuit against suburban gun retailers (sounds better than gun dealer).
The gist of the article is that the retailer was suppose to know that the person legally buying the gun was going to give it to a criminal. Sort of like when a woman asks a man to assist her when she buys a car. I guess if the guy is dressed in a suit and tie its o.k., but if he wears a leather jacket or baggy pants its not o.k.
Common sense would seem to dictate that the government should concentrate their efforts on prosecuting the straw buyer and on getting the word out that straw buyers will be prosecuted, not on expecting gun retailers to have esp.
___________________________________________
CHICAGO -- In the fall of 1998, the Chicago Police Department sent squads of undercover officers into area gun stores to see if retailers would bend or break the law on weapon sales. After purchasing 171 handguns from a dozen stores, the officers reported that firearm dealers were routinely facilitating illegal gun trafficking.
Grainy surveillance video of the sting -- known as Operation Gunsmoke -- appeared repeatedly on local and national television, becoming Exhibit A in the antigun movement's campaign to hold the firearm industry financially liable for urban crime. Chicago made the investigation the centerpiece of its trailblazing civil lawsuit against the industry -- a legal action that helped inspire a wave of municipal antigun lawsuits from coast to coast.
While the civil litigation launched by Chicago and other cities in late 1998 has moved at a predictably slow pace, one might imagine that gun dealers caught on video making allegedly illegal sales would be headed for prison, and fast.
But almost two years later, Operation Gunsmoke hasn't made much of a mark.
Only four out of 12 gun dealers, and a handful of employees, were indicted. The dealers have all denied wrongdoing, saying they follow the rules. The first case to go to trial, in January, ended with a hung jury. In a retrial late last month, another jury took just 10 minutes to acquit. The judge who presided over both trials went so far as to suggest in open court that the case never should have been brought.
What is going on here?
Operation Gunsmoke's first problem is its genesis as a part of Chicago's civil antigun suit -- an unusual combination of a police investigation with a politicized piece of litigation. A second difficulty is that regardless of an investigation's origins, using a sting operation to prosecute gun dealers is a tricky business. Obstacles range from gun-store architecture, which hampers undercover snooping, to surprising gaps in state and federal firearm laws.
"The criminal law generally is designed for unambiguous conduct, like robbing a bank," says Lawrence Rosenthal, a former federal prosecutor who is now a senior civil attorney for Chicago and who helped design Operation Gunsmoke. "It's very difficult to use the criminal law to attack irresponsible sales practices."
While firearm-rights enthusiasts argue that there are enough gun laws on the books, and the problem is merely lax enforcement, the Chicago case illustrates that in some areas, the gun laws have holes and enforcement is harder than one might think.
The idea for the Gunsmoke investigation arose when Chicago Mayor Richard Daley in 1997 asked aides for new ways to fight gun violence. Mr. Rosenthal came up with the idea of suing the firearm industry as a whole to recover the public costs of gun violence.
His argument: that the industry saturates the Chicago suburbs, where it is legal to buy arms, knowing that many weapons will seep into the city, where generally it is illegal even to possess handguns. The city lawyer suggested buttressing this theory with the police sting. Saddled with a somewhat ambiguous role, the police didn't intend initially to make any arrests, although the local Cook County state's attorney's office did monitor the investigation for possible criminal prosecutions later.
Pairs of undercover cops fanned out to suburban stores, some dressed in leather as motorcycle hooligans, others in baggy pants as drug-gang members. One officer typically presented himself as the person really acquiring one or more guns, but barred from doing so legally because of a criminal record. The other officer posed as the "straw" buyer, a person with a clean record who fills out the government forms and undergoes the required background check instead of the real buyer. The police wanted to demonstrate that gun dealers routinely play along with this sort of fraud.
But legal and logistical complexities arose from the start. Under Illinois law, criminal investigators may surreptitiously audio tape their targets. The Chicago police, however, were helping with a civil lawsuit, so they had to refrain from recording voices in the gun shops.
State law didn't prohibit videotaping, but gun stores happen to present a poor target for concealed cameras. As a deterrent to break-ins, few stores have large windows, making it hard to video tape from a surveillance van on the street, Mr. Rosenthal explains.
Bell's Gun & Sport Shop in Franklin Park, Ill., for example, has a brick exterior, with only modest windows on the door that are obscured by security bars. Since they were supposed to be posing as street thugs, the undercover police didn't want to carry attache cases in which they could conceal cameras, Mr. Rosenthal adds. Sting activities in "only two or three" of the dozen stores were videotaped, he says, Bell's not among them.
But the police were persistent. On Sept. 14, 1998, an undercover officer allegedly engaged Bell's salesman Dean Ceretti in conversation about Sturm, Ruger & Co. pistols. When the officer, who was dressed in black leather to suggest motorcycle-gang membership, said he would buy two of the handguns, Mr. Ceretti properly asked him for a state firearm-identification card required in Illinois.
Rather than produce the card, however, the officer openly directed a female cop, who was posing as his leather-clad girlfriend, to show Mr. Ceretti her firearm card and driver's license, according to government court filings. She was supposed to be the straw purchaser.
The male officer allegedly told his companion to give Mr. Ceretti $200 as a deposit. The female officer, whose fake persona included a clean record, allegedly completed the federal paperwork required for a criminal background check and later returned to pay Mr. Ceretti the balance and pick up the guns.
These encounters at Bell's were among dozens cataloged in Chicago's civil suit against the firearm industry, which named Bell's as a defendant. Mayor Daley hosted two large news conferences in late 1998 to publicize Operation Gunsmoke and the civil suit. The investigation, he said, revealed retailers who "defy the laws and encourage their customers to deceive federal, state and local police."
But while Chicago officials widely disseminated their sparse surveillance video -- CBS's "60 Minutes" ran two segments on Gunsmoke in February and August 1999 -- the Cook County state's attorney, Richard Devine, decided to pass on prosecuting any of the dealers and instead referred the investigation to federal authorities. "It was felt that the feds had better laws," says a spokesman for Mr. Devine. But the feds at first showed little interest in the case.
That changed in mid-1999, after the Clinton administration sent word to regional federal prosecutors that gun cases should become a top priority.
The new federal mandate stemmed partly from fresh research suggesting the potential effectiveness of cracking down on straw sales. It also reflected the White House's desire to counter National Rifle Association charges that President Clinton has been soft on gun crime.
Last August, Scott Lassar, the U.S. attorney in Chicago, announced that he would prosecute four of the dozen suburban Chicago dealers and some of their employees, as part of a broader federal gun-trafficking offensive. Publicly, he said that the action would "send a message about the perils of violating federal firearm laws."
But behind the scenes in Mr. Lassar's office, some of his line prosecutors still weren't thrilled by the retailer cases. They worried that there was surveillance video in only two of the four cases, and no audio at all, according to people familiar with the situation. The U.S. attorney himself concedes in an interview that he turned down the other eight cases because there was insufficient evidence of criminal activity.
Federal prosecutors historically have been unenthusiastic about gun-retailer cases in part because of a startling gap in the federal statute book: There is no law directly banning gun sales.
So federal prosecutors use roundabout methods to go after the practice. Mr. Lassar's office settled on the federal provision prohibiting false statements to the government. A gun dealer who facilitates a straw sale must submit forms to the government that conceal the true gun buyer, and in that way, the dealer lies to the government. A false-statement conviction has a maximum five-year prison term. A retail corporation convicted of any felony is supposed to lose its federal firearm license and be shut down.
If relying on the false-statement law sounds convoluted, that's because it is. The absence of a more straightforward ban on sellers' tolerating dishonest gun transactions "is an amazing thing, and it explains why there are problems in bringing these criminal cases," says David Kairys, a law professor at Temple University in Philadelphia who advises Chicago on its civil gun suit. Out of a total of roughly 86,000 licensed dealers nationwide, the ATF says it recommended only 46 for prosecution in 1998, the most recent available statistic.
The best explanation for the lack of straw-sales prohibitions on the federal or state level, says Mr. Kairys, is that until recently, law enforcers didn't pay systematic attention to gun trafficking involving retailers. (Only one state, Maryland, has a direct ban on straw sales, according to Handgun Control Inc., a Washington advocacy group.)
In Chicago, the false-statement strategy hasn't worked well. The U.S. attorney's office brought its first case to trial in January, pressing three false-statement counts against Bell's Gun & Sport, as a corporate entity, and its clerk, Mr. Ceretti.
Assistant U.S. Attorney Stuart Fullerton told the federal jury that the case was about "three separate straw purchases" by undercover officers that Mr. Ceretti, 29 years old, "knowingly and willfully" covered up by filing government forms that misidentified the true buyers.
Bruce Rafalson, Mr. Ceretti's attorney, countered that his client was innocent and had been caught up in a "political prosecution." James Valentino, the attorney for the store's owner, Sherwin Tarnoff of Custer, S.D., stressed the inherent weakness in the government's approach of using deception to entice a clerk into making false statements. "The government agents were the ones that intended to deceive a firearm dealer," the attorney said, "not the firearm dealer intending to deceive the government."
U.S. District Judge James Holderman, himself a former federal prosecutor, clearly sympathized with the defense. In the midst of testimony, he dismissed two of the three counts, telling prosecutors out of jurors' earshot, "If these officers had walked in and said, 'Hey Deano, I'm a criminal, I've been convicted of a crime, and I want to buy a gun,"' then the government "might have a case."
The judge did let the jury consider one count, concerning the fake motorcycle tough who picked out the two Ruger pistols and had his female companion serve as his alleged straw purchaser. The defense suggested that Mr. Ceretti thought the man and woman were married and that the wife was legitimately buying the weapon with her husband's advice.
The jury deliberated for about 10 hours before declaring that it couldn't reach a verdict. The foreman, Paul Dahlquist, explains in an interview that he and some of his colleagues had recalled seeing television reports about police "gun stings" and were disturbed that prosecutors hadn't presented any audio or video recordings. "It could have all been trumped up," he says.
The U.S. attorney's office retried Mr. Ceretti and Bell's two weeks ago on the one count that hadn't been dismissed. This time, the jury took 10 minutes to acquit both defendants.
Juror Patricia Taylor says in an interview that she doesn't like gun shops, but the false-statement approach didn't hold together. "Something is wrong with the gun laws," she adds.
"They want gypsy crystal-ball tellers at the counter," Mr. Tarnoff, the store owner, complains in an interview. He intends to keep Bell's open. Mr. Ceretti, a Marine veteran, has quit gun selling and is looking for a new job. His life, he says, has been "decimated" by the prosecution.
One of the dozen gun stores that wasn't criminally prosecuted has closed, blaming the cost of defending against Chicago's civil litigation. U.S. Attorney Lassar says he intends to proceed with the other three retailer prosecutions, with the next one set for trial in May.
The gist of the article is that the retailer was suppose to know that the person legally buying the gun was going to give it to a criminal. Sort of like when a woman asks a man to assist her when she buys a car. I guess if the guy is dressed in a suit and tie its o.k., but if he wears a leather jacket or baggy pants its not o.k.
Common sense would seem to dictate that the government should concentrate their efforts on prosecuting the straw buyer and on getting the word out that straw buyers will be prosecuted, not on expecting gun retailers to have esp.
___________________________________________
CHICAGO -- In the fall of 1998, the Chicago Police Department sent squads of undercover officers into area gun stores to see if retailers would bend or break the law on weapon sales. After purchasing 171 handguns from a dozen stores, the officers reported that firearm dealers were routinely facilitating illegal gun trafficking.
Grainy surveillance video of the sting -- known as Operation Gunsmoke -- appeared repeatedly on local and national television, becoming Exhibit A in the antigun movement's campaign to hold the firearm industry financially liable for urban crime. Chicago made the investigation the centerpiece of its trailblazing civil lawsuit against the industry -- a legal action that helped inspire a wave of municipal antigun lawsuits from coast to coast.
While the civil litigation launched by Chicago and other cities in late 1998 has moved at a predictably slow pace, one might imagine that gun dealers caught on video making allegedly illegal sales would be headed for prison, and fast.
But almost two years later, Operation Gunsmoke hasn't made much of a mark.
Only four out of 12 gun dealers, and a handful of employees, were indicted. The dealers have all denied wrongdoing, saying they follow the rules. The first case to go to trial, in January, ended with a hung jury. In a retrial late last month, another jury took just 10 minutes to acquit. The judge who presided over both trials went so far as to suggest in open court that the case never should have been brought.
What is going on here?
Operation Gunsmoke's first problem is its genesis as a part of Chicago's civil antigun suit -- an unusual combination of a police investigation with a politicized piece of litigation. A second difficulty is that regardless of an investigation's origins, using a sting operation to prosecute gun dealers is a tricky business. Obstacles range from gun-store architecture, which hampers undercover snooping, to surprising gaps in state and federal firearm laws.
"The criminal law generally is designed for unambiguous conduct, like robbing a bank," says Lawrence Rosenthal, a former federal prosecutor who is now a senior civil attorney for Chicago and who helped design Operation Gunsmoke. "It's very difficult to use the criminal law to attack irresponsible sales practices."
While firearm-rights enthusiasts argue that there are enough gun laws on the books, and the problem is merely lax enforcement, the Chicago case illustrates that in some areas, the gun laws have holes and enforcement is harder than one might think.
The idea for the Gunsmoke investigation arose when Chicago Mayor Richard Daley in 1997 asked aides for new ways to fight gun violence. Mr. Rosenthal came up with the idea of suing the firearm industry as a whole to recover the public costs of gun violence.
His argument: that the industry saturates the Chicago suburbs, where it is legal to buy arms, knowing that many weapons will seep into the city, where generally it is illegal even to possess handguns. The city lawyer suggested buttressing this theory with the police sting. Saddled with a somewhat ambiguous role, the police didn't intend initially to make any arrests, although the local Cook County state's attorney's office did monitor the investigation for possible criminal prosecutions later.
Pairs of undercover cops fanned out to suburban stores, some dressed in leather as motorcycle hooligans, others in baggy pants as drug-gang members. One officer typically presented himself as the person really acquiring one or more guns, but barred from doing so legally because of a criminal record. The other officer posed as the "straw" buyer, a person with a clean record who fills out the government forms and undergoes the required background check instead of the real buyer. The police wanted to demonstrate that gun dealers routinely play along with this sort of fraud.
But legal and logistical complexities arose from the start. Under Illinois law, criminal investigators may surreptitiously audio tape their targets. The Chicago police, however, were helping with a civil lawsuit, so they had to refrain from recording voices in the gun shops.
State law didn't prohibit videotaping, but gun stores happen to present a poor target for concealed cameras. As a deterrent to break-ins, few stores have large windows, making it hard to video tape from a surveillance van on the street, Mr. Rosenthal explains.
Bell's Gun & Sport Shop in Franklin Park, Ill., for example, has a brick exterior, with only modest windows on the door that are obscured by security bars. Since they were supposed to be posing as street thugs, the undercover police didn't want to carry attache cases in which they could conceal cameras, Mr. Rosenthal adds. Sting activities in "only two or three" of the dozen stores were videotaped, he says, Bell's not among them.
But the police were persistent. On Sept. 14, 1998, an undercover officer allegedly engaged Bell's salesman Dean Ceretti in conversation about Sturm, Ruger & Co. pistols. When the officer, who was dressed in black leather to suggest motorcycle-gang membership, said he would buy two of the handguns, Mr. Ceretti properly asked him for a state firearm-identification card required in Illinois.
Rather than produce the card, however, the officer openly directed a female cop, who was posing as his leather-clad girlfriend, to show Mr. Ceretti her firearm card and driver's license, according to government court filings. She was supposed to be the straw purchaser.
The male officer allegedly told his companion to give Mr. Ceretti $200 as a deposit. The female officer, whose fake persona included a clean record, allegedly completed the federal paperwork required for a criminal background check and later returned to pay Mr. Ceretti the balance and pick up the guns.
These encounters at Bell's were among dozens cataloged in Chicago's civil suit against the firearm industry, which named Bell's as a defendant. Mayor Daley hosted two large news conferences in late 1998 to publicize Operation Gunsmoke and the civil suit. The investigation, he said, revealed retailers who "defy the laws and encourage their customers to deceive federal, state and local police."
But while Chicago officials widely disseminated their sparse surveillance video -- CBS's "60 Minutes" ran two segments on Gunsmoke in February and August 1999 -- the Cook County state's attorney, Richard Devine, decided to pass on prosecuting any of the dealers and instead referred the investigation to federal authorities. "It was felt that the feds had better laws," says a spokesman for Mr. Devine. But the feds at first showed little interest in the case.
That changed in mid-1999, after the Clinton administration sent word to regional federal prosecutors that gun cases should become a top priority.
The new federal mandate stemmed partly from fresh research suggesting the potential effectiveness of cracking down on straw sales. It also reflected the White House's desire to counter National Rifle Association charges that President Clinton has been soft on gun crime.
Last August, Scott Lassar, the U.S. attorney in Chicago, announced that he would prosecute four of the dozen suburban Chicago dealers and some of their employees, as part of a broader federal gun-trafficking offensive. Publicly, he said that the action would "send a message about the perils of violating federal firearm laws."
But behind the scenes in Mr. Lassar's office, some of his line prosecutors still weren't thrilled by the retailer cases. They worried that there was surveillance video in only two of the four cases, and no audio at all, according to people familiar with the situation. The U.S. attorney himself concedes in an interview that he turned down the other eight cases because there was insufficient evidence of criminal activity.
Federal prosecutors historically have been unenthusiastic about gun-retailer cases in part because of a startling gap in the federal statute book: There is no law directly banning gun sales.
So federal prosecutors use roundabout methods to go after the practice. Mr. Lassar's office settled on the federal provision prohibiting false statements to the government. A gun dealer who facilitates a straw sale must submit forms to the government that conceal the true gun buyer, and in that way, the dealer lies to the government. A false-statement conviction has a maximum five-year prison term. A retail corporation convicted of any felony is supposed to lose its federal firearm license and be shut down.
If relying on the false-statement law sounds convoluted, that's because it is. The absence of a more straightforward ban on sellers' tolerating dishonest gun transactions "is an amazing thing, and it explains why there are problems in bringing these criminal cases," says David Kairys, a law professor at Temple University in Philadelphia who advises Chicago on its civil gun suit. Out of a total of roughly 86,000 licensed dealers nationwide, the ATF says it recommended only 46 for prosecution in 1998, the most recent available statistic.
The best explanation for the lack of straw-sales prohibitions on the federal or state level, says Mr. Kairys, is that until recently, law enforcers didn't pay systematic attention to gun trafficking involving retailers. (Only one state, Maryland, has a direct ban on straw sales, according to Handgun Control Inc., a Washington advocacy group.)
In Chicago, the false-statement strategy hasn't worked well. The U.S. attorney's office brought its first case to trial in January, pressing three false-statement counts against Bell's Gun & Sport, as a corporate entity, and its clerk, Mr. Ceretti.
Assistant U.S. Attorney Stuart Fullerton told the federal jury that the case was about "three separate straw purchases" by undercover officers that Mr. Ceretti, 29 years old, "knowingly and willfully" covered up by filing government forms that misidentified the true buyers.
Bruce Rafalson, Mr. Ceretti's attorney, countered that his client was innocent and had been caught up in a "political prosecution." James Valentino, the attorney for the store's owner, Sherwin Tarnoff of Custer, S.D., stressed the inherent weakness in the government's approach of using deception to entice a clerk into making false statements. "The government agents were the ones that intended to deceive a firearm dealer," the attorney said, "not the firearm dealer intending to deceive the government."
U.S. District Judge James Holderman, himself a former federal prosecutor, clearly sympathized with the defense. In the midst of testimony, he dismissed two of the three counts, telling prosecutors out of jurors' earshot, "If these officers had walked in and said, 'Hey Deano, I'm a criminal, I've been convicted of a crime, and I want to buy a gun,"' then the government "might have a case."
The judge did let the jury consider one count, concerning the fake motorcycle tough who picked out the two Ruger pistols and had his female companion serve as his alleged straw purchaser. The defense suggested that Mr. Ceretti thought the man and woman were married and that the wife was legitimately buying the weapon with her husband's advice.
The jury deliberated for about 10 hours before declaring that it couldn't reach a verdict. The foreman, Paul Dahlquist, explains in an interview that he and some of his colleagues had recalled seeing television reports about police "gun stings" and were disturbed that prosecutors hadn't presented any audio or video recordings. "It could have all been trumped up," he says.
The U.S. attorney's office retried Mr. Ceretti and Bell's two weeks ago on the one count that hadn't been dismissed. This time, the jury took 10 minutes to acquit both defendants.
Juror Patricia Taylor says in an interview that she doesn't like gun shops, but the false-statement approach didn't hold together. "Something is wrong with the gun laws," she adds.
"They want gypsy crystal-ball tellers at the counter," Mr. Tarnoff, the store owner, complains in an interview. He intends to keep Bell's open. Mr. Ceretti, a Marine veteran, has quit gun selling and is looking for a new job. His life, he says, has been "decimated" by the prosecution.
One of the dozen gun stores that wasn't criminally prosecuted has closed, blaming the cost of defending against Chicago's civil litigation. U.S. Attorney Lassar says he intends to proceed with the other three retailer prosecutions, with the next one set for trial in May.