Rick Schmitt stories from The Center for Public Integrity

Carrying concealed weapons just keeps getting easier

Ohio,United States — 2011-11-22T12:44:25-05:00

In Ohio, it is now OK to possess a hidden, loaded handgun in cars and bars, public parks and parking lots. Gun owners have broad discretion in using deadly force against burglars and car thieves. A 12-hour gun training course is still needed to get a concealed-carry permit, one of the stiffest requirements in the country. But in 2008, a written test to renew a concealed-carry license was abolished as over-regulation.

Today, seven years after the Buckeye State first allowed citizens to carry concealed weapons, more than a quarter-million Ohioans have concealed carry permits. People debate the impact, although the fact that the identity of the permit holders is off limits to the general public makes that tough. A law giving reporters access to the information was scaled back after gun rights’ groups complained that the press had abused the privilege.

The sweeping changes are part of a little-known but dramatic expansion of user-friendly gun laws across the country. Rough estimates put the number of concealed carry permit holders at between 4 and 7 million nationwide.

In just the past three years, 22 states have weakened or eliminated laws regulating the possession of concealed weapons, according to the Legal Community Against Violence, a public-interest law firm in San Francisco that supports more restrictive gun laws.

These measures are easing testing and eligibility requirements for obtaining a permit, opening up new public and private places where people can have concealed weapons, and giving new legal clout to those who use guns to defend themselves.

Many states now give concealed carry permit holders the right to have their guns in parked cars at work — and some have extended the right to parents picking up their children in school zones. Landlords are being told they can no longer refuse to lease property to someone who owns guns.

Since Nov. 1, a sweeping new Wisconsin concealed carry law allows weapons on parts of college campuses and in government buildings. (See Sidebar.)

Last year, Louisiana lawmakers enacted a new law allowing churches and other houses of worship to have armed security guards with concealed weapons.

Kansas allows its permit holders to drink while carrying a concealed weapon, so long as they are not legally intoxicated, under the state’s Personal and Family Protection Act, enacted in 2006.

Utah amended its concealed-carry laws in 2003 to clarify that permit holders may bring their guns into public schools.

Numerous states have also lowered barriers to obtaining a permit. Since 2009, Virginia has allowed applicants to satisfy a training and safety requirement under the law by completing an online test. That has given rise to a cottage industry of instructors who promise results in about an hour – no prior experience necessary.

Last year, Arizona decided to allow citizens to carry concealed weapons without any permit at all, declaring that the right to do so cannot be limited under the state’s constitution. Three other states now have similar laws.

Some anti-gun activists see that as the ultimate aim of what concealed-carry proponents are shooting for: hollowing out the law until there is nothing left to enforce.

“It is the Swiss cheese effect,” says Andy Goddard, president of the Richmond, Va., chapter of the Million Mom March against gun violence. “You keep shooting holes in the bill until there is nothing left.”

The liberalization of concealed carry laws in the states is also helping drive legislation on Capitol Hill for a federal concealed carry law that would require states to recognize each other’s permits. The measure, the National Right-to-Carry Reciprocity Act of 2011, was passed by the House of Representatives on Wednesday.

Gun rights proponents see a system analogous to how states now honor each others’ driver’s licenses.

Critics say the law would undercut local control in states that have imposed tough licensing requirements out of concern for the safety of their citizens.

All of this legislative wrangling also reveals a broad shift in both the tactics and strategy of the gun lobby writ large, including a growing emphasis on policy skirmishes outside the Beltway. Since just 2003, the National Rifle Association has poured $2.5 million into the coffers of state candidates, according to the non-partisan National Institute on Money in State Politics.

Meanwhile, scores of new grassroots gun groups have cropped up in recent years, making a mark with their political activism and assertive tactics.

Borrowing organizing and advocacy techniques from the civil rights movement, these activists are casting gun owners as victims, denied the right to defend themselves and their families against violence, even as the parameters of that right under the Second Amendment remain far from clear under current Supreme Court precedents.

At the same time, a nationwide decline in violent crime over the last two decades has left anti-gun groups on the defensive. Even a growing number of Democrats who previously supported some gun control measures have found little downside from voting with the gun lobby.

The parade of new laws, though, is creating fresh issues and quandaries for private employers, restaurants, churches and other institutions. The laws are also prompting debate about the cultural shift that comes with growing acceptance of guns in daily life and society.

“Permissive concealed carry laws violate our shared expectations that public places will be safe environments where we can be free from guns and gun violence,” the Legal Community Against Violence says. “Instead, they subject all of us to the cynical worldview of a frightened few, a view that says a person can’t be safe in public without a loaded handgun at his or her disposal.”

For gun owners, however, riding the support of a new generation of Republican-controlled legislatures, the changes represent some long-delayed recognition of their rights to self defense under the Second Amendment.

Beyond ideology, gun rights groups say, recession-driven cutbacks in state and local law enforcement budgets have made these rights even more important.

“Probably now more than ever,” John Hohenwarter, the NRA lobbyist for Ohio told iWatch News, “people need the ability to defend themselves.”

Bar fight – round one

When the 129^th Ohio General Assembly convened in January, Republicans, with a commanding new majority, wasted little time in forging an aggressive new conservative agenda.

Heading the list: legislation that would allow concealed carry permit holders to bring hidden loaded handguns into restaurants that serve alcohol.

Ever since the state passed its concealed carry law in 2004, it had been legal to bring a weapon into a McDonald’s — but not a restaurant or bar that provided alcohol. Gun rights activists said there was no reason they should have to check their rights to self defense at the door of an establishment just because it had a liquor license.

Locked in cars, guns become targets for thieves, not to mention inaccessible to protect rightful owners and their families in the walk to and from restaurants on dark city streets.

There were built-in safeguards: the law stipulated that gun owners could not consume alcoholic beverages. Establishments would still have the option of keeping patrons with loaded guns out.

The gun legislation was dubbed “the Applebee’s bill.”

“We are making one less victim zone in Ohio,” Dr. Terry Johnson, a Republican state representative and co-sponsor of the bill, said on the House floor in May just before the legislation was put to a final vote. “Right now, a bad guy knows that is a place where law-abiding citizens will not carry a firearm.”

The lawmakers had already heard in committee from gun lobby witnesses who saw loved ones gunned down in bars or restaurants because of ineffectual and restrictive laws.

Johnson, an Army National Guard doctor who served two tours in Iraq, called the legislation “commonsensical.”

Some of his colleagues, though, were not so sure. The legislation drew no distinction between restaurants and bars, meaning guns would be permitted not just at the state’s finer restaurants, but also in its dankest, darkest roadhouses. The ban on drinking and carrying would still apply in bars, but the critics wondered: Why invite trouble?

The state restaurant and bartender associations opposed the measure. So did the state’s major law enforcement groups.

Even some Republicans expressed grave doubts, saying the law would put otherwise law-abiding citizens in an inherently dangerous environment.

Tavern owners didn’t need the trouble.

“These are the guys with baseball bats behind the bars, with the sheriff on speed dial,” said Republican Todd McKenney who represents a district near Akron. “We are not making it safer” by adding guns to the mix.

But the elephant in the room was the Buckeye Firearms Association, a local gun rights group, which had circulated a plainly worded letter to members about the legislation, saying it would hold any opponents accountable next November. The group had already targeted one lawmaker for his committee vote by taking out newspaper ads saying he had lied to the group in order to win an endorsement.

Democrat Mark Okey of Canton decried Buckeye Firearms’ “political hits” and intimidation, and urged his fellow lawmakers not to succumb to the pressures.

“This is our house,” he said in an emotional plea. “We have a right to defend it.” He announcesd his intention to vote against the bill, declaring, “Buckeye Firearms, you don’t own my vote.”

McKenney, an NRA member, acknowledged he was inviting trouble for himself by opposing the legislation. “They don’t agree with my view. They said they will be sure to point this out at the next election. Of course they will. They could have saved their postage,” he said.

But McKenney and Okey and their allies were embracing a losing cause; the skeptics were mocked as thin-skinned.

“Let’s talk about where the real courage is here,” said Republican Robert Mecklenborg. “We hear a lot of talk about, ‘Well, gee, it takes courage to vote against these special interest groups.’ I would submit it takes quite a bit of courage to support the Constitution —even when the police chiefs’ association says, ‘Don’t do that.’”

Just before the vote, Republican Danny Bubp, one of the bill’s sponsors, a crew cut former Marine Colonel who was the go-to man in the assembly for the gun lobby, had the final say about the legislation, House Bill 45.

“When I went to Officer Candidate School in 1976 with the Marine Corps the first weapon that they introduced me to there was a .45 caliber Colt. I carried that weapon for over 20 years,” he said. “HB 45 … It just has a great ring.”

His colleagues apparently agreed. The billed passed the House by a vote of 56-39, and the Senate, 25-7; Gov. John Kasich signed it into law June 30.

Background check

If they seemed impatient, the frustration of Ohio gun-rights supporters was in a way understandable.

Over the years, rules governing the availability of concealed weapons permits have radically changed. In 1981, most states either prohibited private citizens from carrying concealed weapons or gave issuing agencies — police departments, mostly — wide discretion in deciding who should receive them. Today, 49 states issue permits, and most applicants qualify automatically once they meet certain minimum criteria. The lone holdout is Illinois, and its prohibition is being attacked in court.

In Ohio, the gun lobby had tried for a dozen years to enact such a law. It was repeatedly rebuffed in the 1990s because of opposition from moderate Republican Gov. George Voinovich, a former mayor of Cleveland. His successor, Robert Taft III, also a GOP moderate, did not make the issue a priority.

Opponents exploited divisiveness in the gun rights camp: the state’s main gun group at the time wanted a system without any permitting requirements, and showed little interest in anything less. Concerns about urban violence seemed to take precedence over the rights of gun owners hailing from rural parts.

Starting in 1999, a new group, Ohioans for Concealed Carry, decided to take a different tack. It found a police chief in suburban Gahanna, Ohio, who supported the idea of concealed carry, in sharp contrast with the party line espoused by state law enforcement organizations. The group also adopted a more conciliatory tone in negotiating a bill, giving it added credibility. “We were seen as the reasonable gun guys,” says Jeff Garvas, 36, the group’s founder and chairman, who by day is an IT professional at a local communications firm.

Taft eventually signed a concealed-carry bill into law in January 2004, with some conditions. The new law gave permit holders the right to carry a loaded handgun in their cars, but only if it were holstered or kept in a locked glove box or compartment.

Like most states, Ohio put the names of permit holders off limits to the general public, although Taft insisted on a provision making that information available to journalists.

Investigations of concealed permit holders in Texas and Florida had turned up hundreds of people with criminal backgrounds who were nonetheless receiving concealed carry licenses. The media access, Taft said at the time, was “so we can ensure that the right people are getting permits and that the wrong people aren’t.”

To gun control groups, the moves were straightforward safety and oversight measures.

Gun groups saw the rules for guns in cars as traps for the unwary and the media access as dangerous. But they backed the legislation as a first step. And they set their sights on coming back for more expansive protections later.

A well-organized militia

James Irvine, the chairman of Buckeye Firearms, says his message for lawmakers in Ohio and their party bosses is simple: “If you cross us, we are going to hit back,” he says in an interview. “Know it is coming.”

He backs it up with a little money and a lot of motivated volunteers on the ground, including experts on the Internet, who adroitly leverage technology as an organizing and advocacy tool to rally support for both legislation and preferred candidates.

Besides Irvine, a commercial airline pilot, the leadership includes a lawyer who is an NRA firearms instructor, and a pre-owned car dealer who is the main blogger and opinion leader on the Buckeye web site. They all were originally part of Garvas’ group but split in 2006 over what the two sides call strategic differences.

Buckeye has its own PAC, and while its war chest is modest — about $54,000 right now, Irvine says — its giving is carefully targeted. Among the beneficiaries: the current Speaker of the Ohio House of Representatives, the Secretary of State, the chair of the Ohio Republican Party, and the Chief Justice of the Ohio Supreme Court.

Members — 33,500 people subscribe to its weekly newsletter — are encouraged to take advantage of an Ohio law that gives a tax credit ($50 for a single person, $100 for a couple) for contributions to state legislative campaigns.

More important: delivering support on the ground to favored candidates. In 2010, Irvine stumped for the incumbent governor, Democrat Ted Strickland, riding around rural Ohio in an RV, dubbed “Sportsmen for Strickland,” which was decorated with a camouflage paint job and endorsements from the NRA and other pro-gun groups. The NRA gave $2,500 to Strickland, and spent another $26,000 in independent expenditures promoting his election. Buckeye Firearms gave Strickland $1,000.

Strickland, long a gun-rights proponent, had earned the NRA’s highest candidate rating. The credentials of his Republican opponent, John Kasich, were suspect ever since he voted for a national ban on assault weapons while a member of Congress in the mid-1990s.

“It ticked off a lot of my Republican friends,” Irvine says. “People would ask, ‘Can we really trust a Democrat on the gun issue?’ My answer was, ‘I am a Republican. I am riding around with him. If that is the case — we can absolutely trust him.’ ” Kasich won but it remains to be seen whether the gun lobby will rally around him.

The Buckeye web site – Irvine says it generates about 375,000 page views a month — features pointed commentary, analysis, legislative updates, and tools, such as a downloadable 38-page “Grassroots Action Guide,” including tips on how to be an effective pro-gun volunteer and insights into “how the anti-gun mind works.”

It also has an online messaging system that allows members to instantly contact legislators in Columbus. What it calls a social-media “strike force” to get subscribers to link items of interest to their personal Web pages or other media is generating tens of thousands of new hits.

An occasional web series titled “the Idiot Chronicles” brings new insights on anti-gun lawmakers and other adversaries. A favorite target: Toby Hoover, the long-time head of the Ohio Coalition Against Gun Violence, the state’s largest gun-control group. Among other things, Buckeye has revealed ties between Hoover and the Chicago-based Joyce Foundation, which has made more than $400,000 in grants to the Ohio watchdog. (The Center for Public Integrity has also been a Joyce grantee.)

“[Buckeye Firearms] has become a leader of leaders of the grassroots groups … a model that people are emulating and copying,” says Alan Gottlieb, the chairman of the Citizens Committee for the Right to Keep and Bear Arms, which named Buckeye its organization of the year in 2011.

Media war

Matt Westerhold was not the first reporter to run afoul of Irvine’s group. But he says he personally will never make that mistake again.

In July 2004, three months after concealed carry became legal, newspapers in Ohio began publishing the names and ages of people who had applied for and obtained permits.

Editors argued that since other public safety information was available to the public — such as whether your neighbor was a sex offender or ex-con — people licensed to possess hidden loaded weapons should not get a pass.

For gun groups, though, the decision to publish this data was a serious act of betrayal. The legislature never intended to allow for wholesale publication of lists of the permit holders, they said. Rather, the idea was to allow journalists to determine whether specific individuals — someone with a criminal record, for instance — had a gun permit. Publishing the information, they said, gave gun thieves a road map, violated the privacy of permit holders, and discouraged citizens from getting permits.

James Aslanides, a former Republican House member who was the lead sponsor of the original 2004 concealed-carry bill, successfully rallied support for a legislative fix that continued to allow journalists to view the permits but prohibited them from taking notes or making photo copies.

Westerhold, the managing editor of the Sandusky Register, a 20,000 circulation daily, decided to engage.

He had been getting calls from readers wanting to know if their neighbors had guns. A local prosecutor had gone to court to suppress a request for the records from another publication. One day in June, 2007, Westerhold thought it was time to take a stand.

“We had the list…We had readers who had requested the information,” he recalls. “We decided to publish the list … as a public service.” The list, including the names and birthdates of some 2,500 permit holders, was published on the paper’s Web site. The response was immediate. “A firestorm,” he says.

Irate gun owners felt he had blown the cover of permit holders and put innocent lives at risk.

“I was getting phone calls from all over the country, hundreds of phone calls,” he says, including 250 calls just from readers within his paper’s circulation area. Some he considered personally threatening.

“There were so many nut jobs. There were so many threats that said, ‘I am going to kill you’ …. ‘You should die slowly’… probably dozens of emails and phone calls,” he says.

“And then, Buckeye Firearms got involved,” he says, “in a very pro-active way.”

The group searched the public record and posted on its Web site Westerhold’s phone numbers, auto records, traffic citations, a partial Social Security number, a photo of his home, and details about his divorce and ex-wife.

His daughter, then 12, even got pulled into the fray. Buckeye published a kind of road map on how one might obtain information about the public school she attended and the bus she took there. The group noted that a photo of the girl from her school yearbook could probably be found in the reference section of the local library.

“I never experienced anything like that in my life,” Westerhold says.

“Everything was fair game,” he says, until his daughter became an issue.

He says he consulted an attorney, and took the information to a local prosecutor, who found no grounds to take action.

Irvine said Buckeye Firearms did not publish the information about Westerhold to be vindictive, but wanted to show the editor the downside and destructive impact of publishing information just because it was publicly available. “We could have gotten way, way more personal,” he said.

The blowback appeared to achieve its unstated aim.

“At that point, I went to a low profile,” Westerhold says. “We left the information on line but I have never sought to follow up or do anything with the list.”

“We had a Democratic governor and a state chairman of the Democratic Party who absolutely sold out the issue completely,” he said. “I thought, ‘Why should I fight this fight?’”

Reload and repeal

After concealed-carry proponents broke through with successful legislation in 2004, other gun-related restrictions in Ohio started to fall like dominos.

That the law had been on the books without the explosion in violence that some critics predicted also helped energize the cause.

In 2006, the legislature passed a sweeping “preemption” bill over the veto pen of Taft, joining more than 40 states that prohibit cities and counties from enacting their own firearm ordinances. The Ohio law also gave private gun groups the right to sue municipalities that were not in compliance with the law — and to require them to pay the gun groups’ legal bills if they lost. The so-called fee-shifting statute put gun groups in some exclusive company: only one other Ohio law — covering access to public records — is believed to provide such a benefit.

In 2008, lawmakers gave homeowners and motorists new rights to use deadly force against burglars and other assailants. In the past, such persons were often prosecuted, and had to establish in court that they acted in self-defense. Under the change, which has been adopted by about 20 other states, they now avoid prosecution so long as they can show that they were in danger of death or serious bodily harm. The measure also granted qualifying shooters immunity from civil suits.

By tackling the legal restrictions on guns piecemeal, gun rights groups found that it became more and more difficult for gun-control groups to persuade lawmakers that any single measure would be catastrophic.

“By passing it incrementally,” said Tom Smith, lobbyist for the Ohio Council of Churches and an opponent of expanded gun laws, “people got used to it.”

Prospects were further buoyed by the 2006 election of Strickland. The 2008 legislation included 10 provisions that eased restrictions on guns or made it easier to obtain a concealed-carry permit.

As part of that 2008 measure, for instance, a law making it a crime to have a concealed gun in a privately owned parking garage was repealed. Parents were allowed to possess a gun while picking up and dropping off their kids in a school zone. Landlords were prohibited from disallowing gun ownership by their tenants.

Barriers to obtaining a concealed carry permit were lowered. The requirement of a written test to renew a license was eliminated — as was the requirement of U.S. citizenship. A measure prohibiting applicants with a sealed or expunged criminal record from having a permit was also repealed.

Limits on having loaded handguns in cars were eased and eventually eliminated. People previously convicted of violating any of the guns-in-cars’ rules were given a chance to have their records scrubbed clean.

Gun groups saw the restrictions as entrapping unwary and innocent gun owners in technical violations of the law.

Law enforcement groups, which had opposed concealed-carry, fought for the limits on loaded guns in cars, concerned that giving drivers’ ready access to guns posed a safety risk to officers during traffic stops. But there was no stopping the momentum.

“Once they got their foot in the door, they came back every session and watered it down,” laments Mark Drum, a lobbyist for the Fraternal Order of Police of Ohio.

The scuttling of municipal gun ordinances under the 2006 law and the prospect of awards of attorney fees for suing cities refusing to abide by the law gave gun groups a kind of license to sue.

In 2004, the NRA helped bankroll a lawsuit by Ohioans for Concealed Carry against the city of Clyde, Ohio, population 6,000, which had banned guns in city parks in response to the newly passed concealed-carry law. The suit became a test case of the home rule powers of municipalities under the Ohio constitution — and the double-barreled approach of the gun groups prevailed when the Ohio Supreme Court ruled in 2008 that Clyde’s law was invalid.

Garvas’ group won $8,500 in an out-of-court settlement with the city of Campbell, Ohio, outside Youngstown, over a 2010 ordinance prohibiting firearm sales within city limits, which the city repealed.

In August 2011, the group sued the city of Cleveland Heights for refusing to repeal a series of gun laws dating to 1985, throwing a hot dogs and guns picnic in a city park to draw attention to the issue.

City officials said they had not been enforcing the ordinances since the court decisions upholding the right of the state to preempt the local laws. But they took steps to formally repeal the ordinances after the suit was filed.

Ohioans for Concealed Carry is continuing to press the court to give it credit for the decision and be awarded attorney fees. The city is opposing the request. “All they did was file a canned complaint,” says John Gibbon, the city law director.

More guns, more crime?

The impact of all this maneuvering on crime and public safety is, at best, inconclusive.

From the beginning, a belief that concealed-carry laws lead to less violent crime has driven the movement, although the evidence is debatable.

A 1998 book, More Guns, Less Crime, purported to find a statistical link between concealed carry laws and declines in violent crime in states adopting them. Its author, John R. Lott, an economist and visiting professor at several universities including the University of Chicago, was widely celebrated as concealed carry’s leading intellectual.

But his work has been disputed by several other academics who believe other factors, such as sentencing laws and the number of police officers on the street are more important determinants of crime.

Using Lott’s model, John Donohue, an economist and lawyer at Stanford Law School, found that more guns may actually increase certain kinds of violent crime, though even Donohue concedes that concealed carry laws have not led to the bloodbath some of its opponents once feared.

A 2004 review of various studies, including Lott’s, by the National Research Council found “no credible evidence that the passage of right-to-carry laws decreases or increases violent crime.”

Violent crime in Ohio actually increased for two years after concealed carry was adopted in 2004. The increase was striking because crime had steadily declined in the decade preceding enactment. Proponents ascribe the increase to rising gang and drug-related violence, rather than to the new law.

Absent hard proof, both sides have poured out anecdotal evidence to bolster their respective cases.

At least three people with concealed carry permits have faced criminal charges for using their guns to kill people since the law went into effect.

In 2007, a Cincinnati woman with a concealed carry permit shot and killed a panhandler after he asked her for 25 cents at a gas station. She got nine years in prison.

A Twinsburg, Ohio, police officer was shot and killed in 2008 by a concealed carry permit holder after pulling him over on suspicion of drunken driving. His assailant was convicted of murder and sentenced to death.

Concealed carry proponents say there are even more examples of citizens using their guns to prevent crime or to defend themselves or loved ones from harm.

On its Web site, Buckeye Firearms cites the case of a 70-year-old great-grandma with a permit who pulled a .357 Magnum from her purse and shot and killed an armed robber who burst into a hotel room in Columbus in 2009 where she was staying with family members.

Even when justified, however, the use of force can leave otherwise law-abiding citizens with powerfully ambivalent feelings.

When somebody drove off with his car while it was idling outside his Cincinnati home one morning in 2006, Bennie Hall grabbed his .45 and sprang into action.

He ran into the street and saw his Taurus turning around at the end of the block a few houses away. He said he thought the car would stop when the driver saw him in the street. He fired three times. The driver was killed by a shot to the chest.

Hamilton County prosecutors said the homeowner had a right to defend himself because he thought he was going to be hit. No charges were brought.

The thief turned out to be 14 years old.

“If I had known he was a child I would have taken the hit,” Hall told the Cincinnati Enquirer. “I would have laid down and not fired the gun.”

Bar fight — final round

If Ohio’s legislators had any doubts on how to vote on this year’s bill allowing concealed weapons in bars, there was always the case of Matt Lundy to consider.

Lundy, a Democratic House member representing Lorain County near Cleveland, had voted for other gun-friendly measures, but decided he could not support guns in bars. He thought the idea was absurd and was troubled that law enforcement opposed it. “Is there any guarantee that the bullets always hit the bad guys?” he asked during a committee hearing.

To Buckeye Firearms, however, Lundy had suddenly become a turncoat. Two weeks before the House vote, it blasted him with a media barrage, pegged to a 2010 candidate questionnaire in which he indicated support for allowing guns in restaurants and other locations that serve liquor.

Buckeye Firearms issued a press release to hundreds of news outlets in Ohio, emailed thousands of pro-gun voters, and shared its viewpoint in a newspaper advertisement headlined “Matt Lundy LIED!” The ad appeared in two newspapers that covered his district, both of which published stories about the flap, one accusing him in an editorial of “weaseling.”

“[Buckeye Firearms] wanted to intimidate members who might have been on the fence,” Lundy says in an interview. He said the message seemed to be: “We are going to throw you under the bus and make sure the tire hits you on the way through.”

What influence the shot across the bow had on the vote was unclear. But the final tally was overwhelmingly in favor of the legislation. Lundy indeed voted no. Kasich signed the bill at a ceremony attended by gun lobbyists, including several Buckeye Firearms representatives. Bubp was honored by Ohioans for Concealed Carry for his work on the bill.

As for Lundy, he now finds the whole episode a little baffling. “I don’t think you can effectively be a legislator if you agree with someone 100 percent of the time,” he says. “I was disappointed how you can go from being someone who is well-liked to being totally hated.”

Irvine said Buckeye has not decided whether it will campaign against Lundy when he is up for reelection next year. That will depend on the record of his opponent. “We will send him a survey and see how he responds,” Irvine says. “But … he has lost some trust.”

What the future holds for guns, bars and restaurants is far from clear. About two dozen states have laws that allow guns in bars that serve at least some food. Only a handful of states, now including Ohio, allow guns in bars regardless of whether food is sold.

Tennessee, home to one of the witnesses who testified in Ohio about losing loved ones in bars because of restrictive gun laws, passed a law in 2009 similar to the one that Ohio enacted. But it also allowed bars to opt out of letting gun owners in the door. The bar where one witness lost her husband reportedly decided to keep guns out.

Whether concealed-carry permit holders will be as responsible as their handlers suggest is also unclear. It has been a rough few months for some of the legislative champions of the laws.

A Tennessee state representative who was the lead sponsor of the bar law in that state was arrested in October on charges of drunken driving and possessing a loaded handgun while under the influence.

The month after Kasich signed the guns-in-bars bill in Ohio, three lawmakers who voted for the legislation became entangled in alcohol-related incidents. Two had concealed-carry permits. One resigned under pressure from the Republican leadership.

The departed included Mecklenborg who was arrested for DUI in Indiana with a 26-year-old woman who reportedly worked at a strip club. The lawmaker failed a field sobriety test; a later blood test showed that he was legally intoxicated. The married father of three, and concealed-carry permit holder, announced his resignation July 17.

“Is that a good example of someone I should trust carrying a weapon in public?” says Hoover, of the gun-violence group.

Some people around the capital are still scratching their heads. One critic, Michael Coleman, the mayor of Columbus, has suggested that the legislature “should do unto themselves what they intend to do to us” and follow Wisconsin’s example in allowing guns in the State Capitol building.

Some restaurant and bar owners fret about getting sued if they serve someone who is packing. “Is there going to be a pat down? Do we have to ask every guest before we serve them a glass of wine?” says Michael Singer, who manages Barcelona Restaurant & Bar in Columbus. “Who carries the liability?”

Since Ohio’s law went into effect on Sept. 30, even one Applebee’s has decided to take advantage of an option in the law that allows establishments to post signs and keep people with hidden weapons out. (Most other restaurants in the chain appear to be welcoming patrons with guns.)

And on Oct. 11, permit-holder Chad O’Reilly, 25, was arrested for threatening to kill a fellow bar patron in Deer Park, Ohio, near Cincinnati.

Police said O’Reilly got into a heated argument with another man at the H&H Tavern, walked out of the bar and returned with a .40 caliber semiautomatic Glock pistol. According to the arrest report, obtained by the Cincinnati Enquirer, O’Reilly shouted a racial slur at the man, who is Hispanic, and said, “I’m going to kill you.”

Deer Park police said O’Reilly’s friends ushered him out of the bar and police arrested him at gunpoint a few minutes later, according to the newspaper. He did not resist and no one was hurt.

O’Reilly, who police said had been drinking, was charged with aggravated menacing, ethnic intimidation, possession of a controlled substance (injectable testosterone) and illegal possession of a firearm in a liquor establishment, according to the Enquirer. He faces up to five years in jail if he is convicted of violating the new gun law.

The gun lobby said the incident showed how the new law was working.

“The law has been tested and it passed the test,” Buckeye Firearms editorialized. “An apparent crime was detected, law enforcement were called, no one was hurt, and the accused is facing serious felony charges.”

Badly flawed background check system fails to contain firearms sales

2013-04-11T12:44:40-04:00

Editor's note, April 11, 2013: A compromise in the Senate may ultimately improve the chances for legislation expanding background checks on gun purchases, but a host of obstacles remain to improving the National Instant Criminal Background Check System that grew out of the landmark Brady Act back in the early 1990s.

The deal brokered this week by Sens. Pat Toomey (R-Pa.) and Joe Manchin (D-W.Va) would extend the reach of the current system beyond gun purchases from federally-licensed dealers; under the compromise legislation, background checks would also be required for sales at gun shows or involving firearms advertised for purchase in print or on the Internet. Checks would still not be required, however, for a host of transactions among private individuals.

The compromise seems likely to help the bill's prospects in the Senate, but its fate in the more conservative House is uncertain at best. Even if the legislation passes, the background check system still faces a variety of challenges. As the Center for Public Integrity reported in 2011, the system is plagued by a host of data problems, loopholes and disputes over just who should be barred.

Like many states, Maine depends on the FBI to conduct background checks of people who want to acquire firearms from the state’s federally licensed gun dealers.

And like many states, Maine is a slacker in supplying the records that the FBI depends on to run those checks.

That’s how Raymond Geisel got his guns, including a Glock Model 17 pistol and a semi-automatic version of the AK-47 assault rifle. Geisel had previously been committed to a psychiatric hospital in Bangor, which made him ineligible under federal law to buy or possess a gun. But because state officials had not supplied records of his commitment to the FBI, Geisel passed background checks without being flagged.

Eventually, the law caught up with Geisel. He was arrested in Miami in August 2008 for making threats against Barack Obama, who was campaigning in south Florida around the same time. Another gun that Geisel had acquired in Maine was subsequently recovered by federal agents in his hotel room, along with a combat-style hatchet, armor-piercing ammo and canisters of tear gas.

The data gap that Geisel exploited should have been closed by now. Four years ago, after the massacre at Virginia Tech exposed gaps in the National Instant Criminal Background Check System (NICS), Congress and the Bush administration took decisive action to shore up the joint state-federal operation, which is supposed to keep guns away from the deranged and the dangerous.

But the so-called NICS Improvement Amendments Act of 2007 has clearly not improved things much at all, an iWatch News investigation found. And that’s far from the only problem. The federal background check system, conceived as a first line of defense against gun crime, remains riddled with data gaps, loopholes and disputes over just who should be barred – a troubling conclusion brought into sharp relief by the January shooting spree in Arizona that killed six and wounded 13 others, including Rep. Gabrielle Giffords.

A dozen years after it went fully operational, NICS is still a patchwork operation that, despite a huge data base, often relies on massively incomplete information.

Millions of pertinent documents – from mental health and drug abuse records to the case records of accused felons – remain outside the system, in boxes in courthouse basements or in legal limbo because of state and local laws that prohibit sharing with the feds. As a result, guns are getting into the hands of people who should never possess them.

The mess reflects policy differences with states over which records should be supplied as well as a lack of money and political will and computer prowess to hook up aging state and federal networks.

Many millions of records have been added over the years – and many millions spent on overhauling the technology to get it there. Yet officials are still far from having such basic information as a comprehensive list of everyone who is barred under the law from buying guns. One reason is because the NICS system was bootstrapped to two existing federal data bases that were not designed to conduct background checks.

“We have no idea how many prohibited people there are in the United States,” says John Strong, chief of the FBI section overseeing the NICS operation, in an interview at the NICS headquarters in Clarksburg, W.Va. “We’re not even close to being able to know.”

Background on background checks

Federal background checks are rooted in the assassination attempt on President Ronald Reagan in March 1981 by John Hinckley Jr.; the system was authorized in 1993 in a law named for the former Reagan press secretary, James Brady, who was wounded in the attack. Until then, gun checks were left to the states; 21 continue to do their own checks at least for some guns.

The federal law has 10 categories of “prohibited persons,” including felons, “mental defectives,” drug users, people subject to restraining orders and convicted of misdemeanor domestic assault, fugitives and illegal immigrants, among others.

Millions of checks are done every year, but just a small fraction, between 1 and 2 percent, turn up a problem. In 2009, the latest data available, only about 150,000, or 1.4 percent, of the 10.8 million applications to purchase firearms through a federal dealer were denied, according to a study published last October by the Justice Department’s Bureau of Justice Statistics.

Convicted felons account for the largest share of those rejected; persons with a record of domestic violence, while growing in recent years, are a distant second.

Lying about one’s criminal history or background on the form to purchase guns is fairly common – and a federal offense – but hardly anyone is ever prosecuted. Among the 67,000 people who failed background checks conducted directly by the FBI in 2009, fewer than 70 ever faced criminal charges, a Justice Department-funded study published in April found. Justice officials cited a lack of resources.

What’s more, several thousand people each year who are prohibited from buying guns are cleared to buy them anyway. That is because gaps in the FBI criminal history data base prevent examiners from completing background checks within the three-day time limit set by federal law.

The impact of the Brady law is also the subject of debate. Proponents say the act is one of an amalgam of factors that has brought violent crime down over the last two decades. But some academics believe the effect has been minimal because criminals have been able to get guns from other sources.

A 2004 report by the Justice Department’s Inspector General found that even agents who regularly investigate gun crime believe that most people who fail background checks are not dangerous, and that the reasons they flunk the check are minor or based on incidents that occurred years in the past. The report cited the case of a man who was rejected because of a 1941 felony conviction for stealing a pig.

The actual number of people denied guns for failing a background check, while rising annually since 2004, is still down by about 25 percent from its peak in 1999, NICS' first full year of operations.

During that same period, the number of records of prohibited persons in the system has increased six-fold.

Experts say that adds credence to the notion that the really bad guys are getting their guns elsewhere, through unregulated or illegal sources.

“The word went out, ‘You are going to be denied. You might as well find another means of getting it, either through the illicit market or through the legal non-NICS markets, such as gun shows and private transactions,’” says Alfred Blumstein, a crime expert at Carnegie Mellon University.

A seemingly smooth system

To be sure, NICS seems a highly efficient operation, based on the records that it does have.

The NICS headquarters, four hours from Washington on a West Virginia hill top, has the look and feel of a finely honed retail operation. Operators are standing by, 17 hours a day, every day except for Christmas. More than 90 percent of the gun checks are resolved in a phone call that, on average, takes three to five minutes.

The checks involve searching three different federal data bases, including a massive 58-million record FBI repository of state and federal criminal history records, and a separate system with “hot files” of fugitives and persons subject to restraining orders.

A new “NICS Index” was created as a kind of default to include people who would not show up in the other files but who are prohibited from buying guns. These include the dishonorably discharged, mental defectives, illegal immigrants, among others.

Thousands of checks are conducted every day, with a record 98,000 completed on the Friday after Thanksgiving in 2008. Gun sales are booming, with the volume of background checks up 14 percent through April.

Dealers are initially routed through one of three call centers around the country, in Wheeling, W.Va, Barbourville, Ky., and Fort Worth, Texas, manned by contract employees who resolve about 70 percent of the checks. Calls are transferred to the FBI center in Clarksburg, W.Va., only when a would-be buyer has been flagged by a document in the system. (The contract employees do not see the actual documents because they are not FBI employees.)

The case is then handed off to an FBI “legal examiner” who plumbs the record systems to figure out whether the deal can legally go through. On the surface, it is monotonous work.

On a recent morning, an examiner gave the green light to a man once convicted of DWI (“not disqualifying”) and another who had been charged with narcotics possession (the charges were dismissed).

A third buyer had a misdemeanor disorderly conduct charge on his record, not a disqualifying offense unless it involved domestic violence, which a quick check of the system showed, it did not.

“That transaction will be a proceed,” the examiner says, over and over again.

The mental health loophole

The horrific April 2007 shootings at Virginia Tech focused new attention on the NICS’ lack of access to many relevant mental health records. Seung-Hui Cho murdered 32 people with guns he acquired despite a documented history of court-ordered mental health treatment – records of which never made their way into the background check system. The obstacles to accessing mental health records were numerous. State privacy laws often prohibited the sharing of documents with law enforcement, absent consent or a court order. Most states did not have a single contact person to collect the information and ship it to NICS. The FBI’s Strong said that in some states the bureau still has to check with individual psychiatric hospitals to stay on top of the latest cases.

The NICS improvement act, signed by President George W. Bush in January 2008 – and supported by the National Rifle Association – theoretically provided hefty federal grants to help states overhaul their computer systems in order to get more mental health and other records into the NICS. State legislatures responded by starting to rewrite privacy laws that had limited information-sharing. Under the 2007 law, Congress authorized $875 million over five years for states willing to overhaul their systems and get records to the FBI quicker. But in the ensuing only about 5 percent of the money has actually been appropriated.

Using one of those federal grants, the state of New Jersey expects to have a fully automated records system up and running next year that could deliver thousands of mental health records to the NICS.

At the same time, though, a requirement pushed by the NRA that states offer the mentally ill a chance to win back their gun rights once they return to health has created a major new stumbling block. The Violence Policy Center, a Washington-based gun control group, charged that the measure showed how the legislation had been “hijacked by the gun lobby.”

Experts say such a formal process for restoring those gun rights may be legally required under the Second Amendment. But the idea has stoked an often emotional and fractious debate that has left state legislatures stalemated. As a result, only eight states have thus far won a share of the federal money.

“These issues are so sensitive that they just polarize people,” says Kristen Mahoney, president of the National Criminal Justice Association, a Washington-based nonprofit advocacy group of state and local law enforcement officials. She is also a senior crime-control adviser to the governor of Maryland, Martin O’Malley.

In 2008, Maine became one of the first states to give the formerly mentally ill a clear pathway to buying guns again. But its legislature also stopped short of granting the right to everybody, drawing the line at people who had been found not guilty by reason of insanity.

The move seemed reasonable to its supporters: the few Maine cases in which the insanity defense was employed successfully have been unusually grisly, including the murder trial of a man who gained national attention by attacking four elderly nuns in a chapel in Waterville, stabbing and bludgeoning two of them to death.

But Washington decided the state did not go far enough.

“The NICS Section declares unless your law is 100 percent in compliance with federal law then we are not going to give you any money to build these systems,” says Anne Jordan, the state’s public safety commissioner at the time the law was passed.

Jordan says she found the state’s approach to be reasonable and appropriate. “Maine is a very traditional gun rights state, a huge tradition of hunting in this state,” she says. “The legislature was very aware and careful where it drew the line in the law.”

The Bureau of Alcohol, Tobacco, Firearms and Explosives said the agency does not comment on individual applications.

Illinois qualified for a federal grant but its own system for collecting mental health records is such a mess that it could take many years to improve the situation.

Mental health data that is available there is rarely reported in a systematic way. Only 41 of the 130,000 licensed practitioners and clinicians in Illinois are reporting adjudications of mental deficiency. The state’s judiciary has no standard practice in place to have judges instruct clerks to report court adjudications of mental incompetence. Records at the state’s mental health department are not automated. The state police background check system is 40 years old and showing its age.

“It is a Tower of Babel,” says Elliot Fineman, chief executive of the National Gun Victims Action Council, a Chicago-based advocacy group, which monitors efforts by the state of Illinois to improve its background check system.

Illinois has submitted 5,000 mental health records to NICS. Fineman estimates that total is just 5 percent of the number held by state agencies and courts.

State police say they are trying to improve the system as quickly as possible. “The biggest hurdles continue to be advocacy concerns with regard to dissemination of names of prohibited individuals and the pace with which much need technical improvements can be made,” said Illinois State Police spokesman Scott Compton in an e-mail. “The ISP is working cooperatively to improve processes on both fronts.”

Beyond records, the debate raises broader questions over defining categories that should allow for denial of a gun purchase. The federal law’s definition of mental illness, for example, is a narrow one, limited to people who have been involuntarily committed or found insane or incompetent by a court. Large segments of the population – including alleged Tucson shooter Jared Lee Loughner, a diagnosed schizophrenic -- are not captured by that system.

Criminal histories and other loopholes

The criminal history data base the FBI uses to check for felons has its own troubled history. The good news is that the system contains millions of easily accessible arrest records. The bad news is that in about half of the cases there is no information about how the cases turned out – whether the person was found guilty or not or even prosecuted at all.

Without that information, the FBI cannot make a final decision to approve or reject an application. Moreover, under the law, a dealer has the right to transfer a firearm to a purchaser after three days, even if the FBI has not completed the background check.

What that means at the NICS operation center in Clarksburg is that missing disposition information begins a race against time.

Calls are placed to local courts where the initial charges were filed, in the hope of finding a clerk willing to run down documents. Often, the documents are in storage. Sometimes, they have been destroyed.

In most cases, the examiners beat the clock. The FBI digs out thousands of disposition records each year – and sends the information back to state agencies to update their records.

But if the deadline is not met the dealer can transfer the firearm to the purchaser even if the check is not completed, which happens hundreds of times a year. While declining since NICS was launched, the number – about 3,000 in 2010 – remains a concern.

The FBI overnights the names of “delayed denials” to the ATF, which is responsible for retrieving the guns, but which has been criticized for devoting inadequate time and resources to the problem.

“ATF views delayed denials as a top priority and is committed to act quickly in the interest of public safety and preventing violent crimes,” an agency spokesman said in an e-mail. Since the inspector general report, ATF has issued new guidelines on handling such cases, including a requirement that initial action be taken within 48 hours of receipt of the referral, the spokesman said, adding that about 10 percent of the referrals turn out not to involve a person who is prohibited from buying a gun.

Drug abusers and addicts are also prohibited from buying guns under the law – but the law has been interpreted to bar only those who have been convicted of drug crimes or charged on multiple occasions. And that no doubt leaves a lot of addicts and abusers out. More and more people have been blocked from buying guns because they are subject to restraining orders designed to protect family members. But the prohibition ends when the restraining orders lapse, which advocates argue still leaves potential victims vulnerable.

In addition, some criminals game the system by saying they are someone else. NICS relies on government-issued identification cards like driver’s licenses that are easily and often faked. A 2001 Government Accountability Office report revealed that GAO investigators were able to purchase firearms in five states — Virginia, West Virginia, Montana, New Mexico and Arizona — using counterfeit driver’s licenses with fictitious identifiers. Some law enforcement officials believe the only sure-fire identification of a prospective gun purchaser would be through fingerprints, which would be read at a gun store by a scanner, and then compared against the FBI’s automated fingerprint database. But such an idea doesn’t even seem to be on the table for consideration.

Gun shows, straw buyers and gaming the system

John Patrick Bedell was one of those tripped up by the background check system. But he also tragically found a way around it.

One of the guns that Bedell used to shoot two police officers at a checkpoint outside the Pentagon in March 2010 – before the officers returned fire and killed him — was purchased in a private sale at a gun show in Las Vegas.

Bedell was able to acquire the 9mm Ruger pistol even though he had a history of mental illness, and had been rejected by a gun dealer in California a few weeks earlier.

That’s because private sales at gun shows – and other venues — are essentially unregulated, with no requirement that the sellers have a license or keep records, and no requirement of a background check for the people they do business with, although requiring them anew has been frequently proposed.

Gun-control groups see private sales at gun shows as a massive loophole for criminals and other prohibited persons to arm themselves. The ATF has called gun shows “a major venue for illegal trafficking.” Several studies have found them to be a magnet for gang members from Mexico and California. The Violence Policy Center has referred to gun shows as “Tupperware Parties for Criminals.”

American-born al-Qaida member Adam Gadahn suggested in a video message over the Internet earlier this month that would-be terrorists check out gun shows as a way of getting easy access to arms to launch attacks in the United States.

''America is absolutely awash with easily obtainable firearms,” Gadahn said. “You can go down to a gun show at the local convention center and come away with a fully automatic assault rifle, without a background check, and most likely, without having to show an identification card. So what are you waiting for?''

Critics say gun shows are also rampant with straw purchasers, people who use their own clean records to pass background checks and buy guns for felons and other prohibited persons. While requiring background checks might not directly address the issue of straw buyers, some academics believe that creating an atmosphere of tighter regulation would discourage such sales.

Ann Trina Collins, 37, was a working mother of four, who bought three semi-automatic pistols and three Romanian-made knock-offs of the AK-47 at a gun show near Cleveland.

Collins told investigators that she went to the show because she was having problems with people trespassing and damaging property at her home, and wanted some protection.

But one of the pistols ended up in the possession of her estranged husband, who had a string of felony convictions, and another weapon showed up at the scene of a felonious assault and attempted murder. An investigation turned up the fact that she had bought other guns for her husband.

Collins was convicted of illegally using her clean record to purchase guns for others, and was sentenced to 48 months in prison. She is appealing.

“Whenever one speaks of restricting gun rights, the immediate response is that the result will be that only criminals will have guns if such restrictions are put in place,” U.S. District Judge John R. Adams said in sentencing Collins. “Unfortunately, it appears that even with regulations, guns will inevitably end up in the hands of criminal due to persons like the defendant circumventing the existing restrictions.”

Washington dithers

In an op-ed in the Arizona Daily Star two months after the Tucson shootings, Obama launched his own campaign for tougher laws.

He said the NICS system had not been “properly implemented.” He called for enforcing existing laws to ensure that data supplied by the states to NICS is complete; rewarding states that provide “the best data”; and making the system “faster and nimbler” for sellers “who want to do the right thing.”

“I want this to at least be the beginning of a new discussion on how we can keep America safe for all our people,” Obama wrote.

The NRA responded that it welcomed such a discussion – so long as it focused on prosecuting criminals and fixing what it said were deficiencies in the mental health system. “Any proposals to the contrary are not a legitimate approach to the issue,” NRA officials said in a letter to Obama in March.

Since then, progress has been marked by periodic meetings at the Justice Department where gun-control advocates make a case for tougher laws and policies. Legislation developed by the Mayors Against Illegal Guns -- a coalition of more than 500 mayors led by Michael Bloomberg of New York and Boston Mayor Thomas Menino — began surfacing in Congress.

In March, Sen. Charles Schumer of New York introduced the Fix Gun Checks Act of 2011, which would toughen the penalties for states that fail to share the various records the system depends on, as well as mandating cuts in federal crime-fighting grants for the underperformers. The legislation would also extend background checks to virtually all gun sales, routing private transactions at gun shows through a federally licensed firearms dealer or a law enforcement agency.

Schumer’s bill would also broaden the prohibition on drug users to include anyone who has admitted to “using or possessing a controlled substance unlawfully within the past 5 years” — a provision that critics say could also snag many ordinary citizens if strictly enforced.

Rep. Carolyn McCarthy of New York, the co-author of the 2007 NICS amendment law, introduced companion legislation in the House last month that she says would “close some of the loopholes” that have allowed states to shirk their record-reporting duties.

Beyond legislation, Obama is said to be reviewing ways he could tighten up the NICS system through an executive order, including getting federal agencies to turn over more records.

Activists say they regret Obama has not devoted more public attention to the issue. Paul Helmke, the president of the Brady Center to Prevent Gun Violence, has been pushing unsuccessfully for a presidential commission to examine the issues of mental health and gun violence.

“My main disappointment with the administration has been they have not even used the bully pulpit on this issue,” Helmke said, adding that he felt Obama’s election on a strong gun-control platform suggested to him that the nation was ready for a crack down on guns. “It showed me this isn’t as politically radioactive as some people like to think it is.”

The White House says that Obama remains committed and is not backing off the issue. “The President believes we can identify some common sense measures that would improve American safety and security while fully respecting Second Amendment rights,” White House spokesman Eric Schultz said. “And that is why he has directed the attorney general to do just that.”

North Country Blues

Back in Maine, Raymond Geisel spent 16 days in 2003 at the state psychiatric and chemical dependency treatment hospital in Bangor, following an emergency commitment, according to court records.

Starting in 2005, he acquired at least six weapons from licensed gun shops in Maine. In addition to the Glock pistol and the Romanian-made AK-47, he purchased a Smith & Wesson revolver, a variant of the AR-15 assault rifle, and two shotguns.

He had moved to Florida in January 2008. At the time of his arrest, he was taking a 10-day class in Miami, learning to become a licensed bail bondsman.

Classmates overheard him making angry and racist threats against Obama, in one case vowing to “assassinate him myself” if he were elected, according to an affidavit on file in U.S. district court in Miami. Another student said she heard Geisel say he “hated George W. Bush and that he wanted to put a bullet in the President’s head."

The information made its way to the Secret Service, which interviewed Geisel on Aug. 1, the same day Obama arrived in St. Petersburg to campaign. Geisel was arrested the next day, and charged with making threats against Bush and Obama.

A search of his SUV and his hotel room yielded an astounding cache: military fatigues, hand-held radios, a loaded Smith & Wesson handgun, 40 rounds of Black Talon armor-piercing ammunition, body armor, a stun gun, two canisters of tear gas, and more. The arsenal stunned federal authorities in Maine, who had no access to his mental health records because of a state ban on sharing commitment records with law enforcement.

After Geisel’s arrest, the Secret Service notified the ATF office in Maine, which tied Geisel to purchases of five other guns, which he had left with a friend. Those weapons were later seized.

Geisel pleaded guilty to a charge of possessing a firearm and ammunition after having been committed to a mental institution. He was sentenced to 10 months in prison. He could not be reached, and his attorney declined comment.

He told the Secret Service that he had been a victim of physical and emotional abuse when he was younger. He also said that he had voluntarily checked himself into a mental health facility in Maine, and had sought psychiatric treatment for post traumatic stress disorder.

Observers say the episode shows that making NICS work is not as easy or straightforward as some politicians might suggest.

“This is a perfect example why simplistic enforcement of the law is not working … because we have the federal and state governments out of sync,” said William Harwood, a Portland, Maine attorney, and founder of the Maine Citizens Against Handgun Violence.

“We are a NICS state, not a state that has set up its own system,” he adds. “If we have submitted to being a NICS state, why are we fighting NICS?”

Last month, Maine’s legislature held a hearing on a bill that would put the state in compliance with the federal law, requiring the sharing of all commitment papers and broadening the procedures for restoring rights. It died in committee.

Strong, of the FBI, appreciates the dilemmas that states face in making such judgments.

“There’s probably some folks in the community that say ‘Yeah, that’s something that happened to them 20 years ago, they’ve been a responsible citizen since,’ ’’ he observes. “But do you want to be the judge that signs off on that? That’s a tough one. Do you want to be the legislature that votes for that and then somebody that gets their rights restored has another Virginia Tech type incident? It’s a hard sell.”

Even the most ardent supporters of the background check system question its suitability for catching every worrisome person. Jared Lee Loughner was able to buy a gun from a dealer and pass a check even though he was widely viewed as troubled. Pima Community College police had several contacts with him, and college officials had informed Loughner that he could not return to campus without a mental health clearance.

“If we had at least some human involvement in this process…maybe he would have been stopped. Instead we rely purely on a computer thumbs-up or thumbs-down,” said Helmke of the Brady Center. “The guy could be frothing at the mouth, talking to aliens, and if his record is clear, he gets the gun. There is a problem with a system like that. It is harder for a high school kid to get a job at McDonald’s.”

Rick Schmitt is a Maryland-based freelance writer. This story was funded in part by a grant from the Joyce Foundation.

Romanian weapons modified in the U.S. become scourge of Mexican drug war

2012-12-21T11:47:29-05:00

Editor's note: Since the tragic carnage in Newtown, Conn., much of the talk in Washington has focused on reinstating the domestic assault weapons ban that existed from 1994 to 2004. But as the Center for Public Integrity reported last year, powerful imported semiautomatic weapons have also been a problem, despite a long-standing law designed to keep them from U.S. shores —weapons like the Romanian made WASR-10, a fearsome version of the iconic AK-47.

Foreign-made guns without a "sporting" purpose, like hunting or target shooting, are barred from import, but clever importers have found a completely legal way around the law. Foreign guns like the WASR-10 are shipped here stripped of their military features so they can be treated as "sporting" guns. The weapons are then modified with a few U.S. parts, declared to be American-made and shipped through wholesalers to local gun dealers for sale with high-capacity magazines, bayonets and the other features of a bargain assault weapon.The WASR-10 has become a favorite of the Mexican drug cartels and in recent years hundreds of them have been traced to crimes in Mexico.

Back in 2009, more than 50 mostly-Democratic members of Congress pleaded with the Obama Administration to alter its interpretation of the "sporting purposes" law to close what they saw as a loophole—something they claimed the President could do through executive order. But the Justice Department responded that the guns in question—like the WASR-10— "are lawfully entering the country." On Friday, the leader of that Congressional effort, Rep. Eliot Engel (D-N.Y.), sent a new letter to President Obama, asking him once again to more tightly enforce the "sporting purposes" test. Engel complained that over the past decade, the Bureau of Alcohol, Tobacco, Firearms and Explosives "has almost completely abrogated the ban on imported assault weapons."

On Dec. 17, Sen. Dianne Feinstein (D-Calif.) announced that on the first day of the new Congress, she would introduce legislation halting the sale, transfer, importation and manufacture of assault weapons. The draft bill would, among other things, target 100 specifically named guns. One of them, said an aide to the senator, is the WASR-10.

Read our original story, reported in collaboration with the Investigative Reporting Workshop at the American University School of Communication, InSight, FRONTLINE and the Romanian Centre for Investigative Journalism:

Camron Scott Galloway, 21, walked into X Caliber Guns in Phoenix, Ariz., on Jan. 30, 2008, and filled out forms for the purchase of six AK-47 rifles.

Reliable and powerful, and a bargain at about $500 each, the Romanian-made gun, a semiautomatic version of the iconic Kalashnikov assault weapon, had become popular with the drug cartels in Mexico.

Galloway, who eventually pleaded guilty to a forgery charge and became a cooperating prosecution witness in a broader case, testified that he agreed to act as the purchaser of the Romanian AKs on behalf of a co-worker’s brother, who was trafficking weapons south of the border. Just for doing the paperwork, he earned $100 per rifle.

Four months later, one of the same guns that Galloway signed for surfaced in a safe house used by the Beltrán Leyva drug cartel in northwest Mexico. The discovery followed a deadly shootout between federal agents and drug dealers in Culiacán, the capital of the Pacific state of Sinaloa. Eight police officers were killed.

In the grim accounting of death and violence from Mexico’s drug wars, the episode might be written off as a footnote. After all, almost 35,000 people have been killed in violence in the four years since President Felipe Calderón began deploying troops and federal police throughout Mexico to ratchet up the fight against the cartels.

Mexican gun laws, among the most prohibitive in the world, continue to drive drug dealers and their agents to the United States and its more permissive laws.

But the Romanian AK stands out, both for the popularity it has achieved with the cartels and for the route it has traveled from Romania through the United States to Mexico — a journey made legally even though for years it has actually been illegal to import high-powered, semiautomatic weapons that do not have a “sporting purpose” into the United States.

U.S. gun laws have been interpreted by federal regulators in a way that affords importers a way around the ban. Foreign guns like the Romanian AKs are shipped into the United States stripped of their military features so they can be treated as sporting guns.

The weapons are then modified by an importer with a few U.S.-made parts, declared to be American-made and shipped through wholesalers to local gun dealers for sale with high-capacity magazines, bayonets and the other trimmings of a bargain assault weapon.

The Romanian AKs — sold by Florida-based Century International Arms as the WASR-10 — have become the most common gun purchased in the United States since 2006 to be traced to crimes in Mexico, according to a review by the Center for Public Integrity, InSight, the Investigative Reporting Workshop at the American University School of Communication, PBS’ FRONTLINE and the Romanian Centre for Investigative Journalism.

Reports from the Justice Department’s Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) show that over the last four years, more than 500 of the WASR-10s imported into the United States by Century were recovered in Mexico after being purchased in the United States. That is the most of any rifle or pistol purchased, recovered and traced during that four-year span, accounting for more than 17% of the total guns recovered, the reports show. While Century does sell an unmodified version of the WASR-10 in the U.S., most of its guns showing up in the smuggling cases have been upgraded to include high-capacity magazines and other military features, according to law enforcement officials, investigative documents and court records.

Other popular models identified in the ATF reports include several American-made versions of the AR-15 assault weapon, and two guns made by Fabrique Nationale Herstal of Belgium, including a sleek, compact rifle called the PS-90.

The relatively modest price of the WASR-10, and the large premium it fetches in Mexico, where it is valued for its durability and firepower, has contributed to demand for the gun. Sold for as little as $400 in gun shops on the U.S. side of the border, the rifle can fetch upwards of $2,000 to $3,000 in Mexico, officials said.

A matter of legal interpretation

The Obama administration says the process is perfectly legal.

“There is no evidence that rifles entering the country fail to match the description of the weapons authorized for importation on the import permits issued by ATF,” Justice Department spokeswoman Tracy Schmaler said. “To the extent that semiautomatic rifles in non-sporting configuration are going across the Southwest border, they are likely being reconfigured following importation.”

To law enforcement on the front lines of the drug wars, that interpretation of U.S. gun laws is the source of the problem.

“They let in just about anything,” said Gerald Nunziato, a former ATF official, who is now an independent consultant.

Added Arizona’s former Democratic Attorney General Terry Goddard, “We’re declaring ourselves … to be the allies of the Mexican government and fighting against the cartels. And yet through official inaction, the United States is, in fact, arming the cartels.”

Some members of Congress have been frustrated in their efforts to get the Obama administration to change its position.

A picture of the X Caliber storefront in Phoenix, Ariz. The store was shuttered after authorities arrested owner George Iknadosian for conspiracy, money laundering and fraud, among other alleged crimes. The charges against him were later dismissed. Credit: ATFA group of more than 50 mostly-Democratic members of Congress, led by then-House Foreign Affairs Western Hemisphere subcommittee chairman Eliot Engel, wrote Obama in February 2009 that the ATF’s interpretation of the law and its reaction to the reality of the situation has effectively abrogated the ban on imported non-sporting weapons. A similar letter was written just this week by Sen. Dianne Feinstein (D-Calif.).

The lawmakers claim that Obama could close the existing loopholes using executive powers — and avoid a battle over gun-control legislation with congressional Republicans. But the President, they say, seems unwilling to do so.

“We are contributing to the instability in Mexico, and we are sowing the seeds of potential instability in the United States,” Engel said in an interview. “It doesn’t make sense to me ... It is not defensible.”

Gun rights advocates note that the U.S. already has a host of laws that apply to every link in the trafficking chain.

“Strong enforcement of existing U.S. firearm laws, and cooperative enforcement programs with Mexican authorities, are likely to be more productive than added restrictions,” the National Rifle Association says in a statement on its website. The NRA declined comment for this story.

For the time being, the Justice Department appears comfortable with the status quo.

“ATF is committed to vigorous enforcement of the import restrictions on non-sporting firearms, but the restrictions under current law do not amount to a complete ban,” Ronald Weich, the assistant attorney general for legislative affairs, wrote back to Engel in December 2009. “ATF believes that the vast majority of the firearms you cite in your letter are lawfully entering the country ...”

The gap between law and regulation

After an epidemic of urban crime and political violence, the Gun Control Act of 1968 banned imports of most guns other than those with a “sporting” purpose, such as hunting or target shooting.

Originally applied to handguns, this “sporting purposes” test was extended to so-called assault weapons, including semi-automatic variants of the AK-47, under the administrations of both George H.W. Bush and Bill Clinton.

When it was enacted as part of the Gun Control Act of 1968, the sporting purposes test was seen as a way to keep the U.S. from becoming a dumping ground for surplus military weapons from around the world.

Federal customs and firearms authorities were empowered to block guns from coming ashore unless they were “generally recognized as particularly suitable for or readily adaptable to sporting purposes.”

Gun owners and manufacturers saw it another way. The NRA has called the language “the single most dangerous and elastic phrase in the federal gun law,” a threat to citizens’ Second Amendment rights, and said just last week that the provision needs to be changed. Importers have viewed the ban as a kind of unfair protectionism for domestic gun makers.

In 1989, the administration of George H.W. Bush first attacked the problem of imports of assault weapons, after five children were killed in a Stockton, Calif., schoolyard by a man wielding an imported Chinese semi-automatic AK variant.

The new rules banned the import of semiautomatic rifles that had what were considered “military” features. The prohibited parts included pistol grips and folding stocks and flash suppressors, and magazines holding more than 10 shots. The defining language and reasoning were reflected in the domestic assault weapon ban enacted in 1994.

The industry complied — and assault weapons still kept pouring in. The Bush era rules left a loophole for importers to bring in rifles whose only military feature was a detachable magazine holding more than 10 shots.

The Clinton administration tightened the import rules further after finding that even some gun clubs and hunters felt the high-capacity magazines — defined as those with more than 10 rounds of ammunition — were not well suited for hunting or competitive target shooting.

It fashioned a regulation that made the large magazine alone a disqualifying feature for semi-automatic imports. The industry sued, but the administration prevailed in federal court in 2002, and the ban remained in effect even after the domestic assault weapon ban expired two years later.

But importers had another card to play. Ironically, that turned out to be a provision of the Crime Control Act of 1990 that was intended to limit abuses of the import ban in cases where rifles were assembled in the U.S. using foreign parts.

A Tucson-based importer of AK-47s from China was able to skirt the ban by tearing apart the weapons and re-assembling them using a U.S.-made receiver, which includes the trigger and firing mechanism. At the same time, there was concern that individual gun owners might be exposed to prosecution for using a few foreign parts in domestic weapons that were functionally similar to the banned imports.

Regulations later developed to implement the crime law laid out some basic ground rules, identifying a list of key parts used in the rifles and limiting the number that could be used. The effect: if you use more than 10 of the foreign-made parts in the assembly of the weapon in the U.S. you are really making a foreign gun and, depending on the parts you are adding, you are breaking the law.

But the opposite was also true — that using 10 or fewer foreign parts in the manufacture of a firearm made it American — at least for purposes of the import ban. The emphasis thus shifted to replacing foreign parts with American parts — the cheaper the better.

Importers had turned the law on its head.

Import business booms

Since the assault weapon ban expired, imports have surged. In 2009, 2.96 million rifles and handguns were imported into the United States, more than double the 1.32 million imported in 2005, Commerce Department and International Trade Commission data show.

Domestic firearms production grew 80% to 4.5 million arms in 2009, compared with 2.5 million in 2005, ATF data show.

Importers like Century have a well-honed process for some of their guns.

They start with slimmed-down “sporting” versions of their foreign rifles that can pass the import test. Then, once the weapons are legally in the United States, a few foreign parts are replaced with American ones.

The alchemy yields a gun that — at least according to regulations enforced by ATF — is American-made. It can then be loaded up with more features such as a high-capacity magazine and bayonet because under the law it is no longer an import.

Mark Barnes, an attorney in Washington who represents Century, said the closely held company had “elected not to comment” for this story.

Romarm SA, the state-owned arms and ammunition firm in Romania that supplies the weapons to Century, said its policies ensure that the arrangement comports with U.S. law.

“Century buys guns destined for the civilian market, guns which are based on the well known military models known by Century’s clients,” the company said in a statement. “The guns are modified in accordance with the severe legislation in the U.S.; these models were approved by the specific institution in the U.S. that monitors all the imports of guns and ammunition.”

Century is not the only importer selling a high-powered rifle from abroad that, as altered, would be barred under the import laws. The PS 90 made by FN Herstal undergoes a similar transformation. A fully automatic version of the rifle was originally designed for NATO as a lightweight option for delivering high-velocity ammo capable of piercing body armor.

In a statement, the U.S. unit of FN Herstal said that it is in full compliance with all ATF regulations, including the one covering imported and domestic parts, known as Section 922(r).

“The PS90 meets ALL BATF 922(r) regulations and is approved by BATF as a sporting firearm,” the company said.

The Century Arms success story

Like many other gun companies, Century is a small business, but one with outsized influence.

Its founder, William Sucher, got his start overhauling and selling old office equipment. He turned to firearms in the early 1960s after a cash-poor customer offered to swap some old carbines for office machines. Sucher turned a quick profit and never looked back.

With his brother-in-law and partner — a garrulous Canadian named Manny Weigensberg — he would scour the warehouses of Europe and Asia for surplus military arms. Sucher told government officials in 1964 that he had bought “hundreds of thousands of rifles” by the pound from the Italian government.

Sucher died in 1976, and Weigensberg in 2004.

Century had operations both in Canada and the United States. It set up a warehouse and manufacturing plant across the Canadian border in Vermont, which it has maintained to this day in the town of Georgia, even after moving its corporate offices to Florida years ago. Its headquarters are currently in Delray Beach. Century has long been considered the largest importer of surplus firearms and accessories in North America.

In the late 1980s and early 1990s, Century was one of the largest importers of SKS rifles from Russia and China, variants of a semi-automatic carbine that was once a staple of the Soviet military before being eclipsed by the AK-47. The guns, which at one point sold for as little as $125, were marketed by some dealers as a way for ordinary citizens to own a semi-automatic weapon.

Perhaps its best-known sale was when Weigensberg procured a shipment of arms for the Nicaraguan contras in the 1980s. He and the company were questioned by the Canadian government after a photo of a rebel with his foot on an empty case of ammo marked “CIA, Montreal, Canada,” turned up in Soldier of Fortune magazine.

Business boomed in the 1990s, after the collapse of the Warsaw Pact sent massive stockpiles of arms and ammunitions onto the market. Mining new sources of supply in Eastern Europe, the company was reportedly buying and selling 50,000 rifles a month, including many home-grown versions of the AK-47 made by the former Soviet satellites.

Today, Century advertises a broad assortment of rifles, including versions of classic guns originally from Poland, Czechoslovakia and Israel. The company also makes what it describes as a “100% American made” AK called the Centurion which, at about $749.95, retails online for almost twice the price of the Romanian rifle.

The Romanian connection

The company’s Romanian supplier is located in the town of Cugir, in a region long famous for its iron resources. Over the years, factories in the area have turned out everything from washing machines and sewing machines to military components.

In the 1980s, Romania was one of the world's largest arms exporters, supplying weapons to member countries of the Soviet-led Warsaw Pact and to Arab nations. Today, the Fabrica de Arme Cugir is part of the state-owned arms and ammunition firm, Romarm SA, and the conglomerate’s only unit to focus principally on rifles and handguns.

Its primary American customer: Century Arms.

The relationship goes “way back,” even predating the fall of dictator Nicolae Ceauşescu, a former Century manager says.

When the U.S. eased restrictions on imports from Eastern Europe in the mid-1990s, the relationship expanded. Romarm says it signed its first contract with Century in 1997.

A version of the WASR-10. Credit: Teknorat.The weapon that became the WASR-10 was built for the U.S. market with an eye towards the limits U.S. law placed on imports. Romarm says the rifles are produced with a fixed 10-shot magazine to comply with the U.S. import law. “The subsequent modification is the owners’ problem,” Romarm said.

A review in American Rifleman, an NRA publication, said the WASR-10 “represents an exceptional deal to those in the market for a short- to mid-range semi-automatic rifle that is both extremely reliable and highly affordable.”

Rifle imports from Romania to the United States have more than doubled since the domestic assault ban expired in 2004 to 82,312 in 2009, from 37,239 in 2004, Commerce Department and International Trade Commission data show.

Financially, the Romania plant struggles, officials say. It fell into an insolvency proceeding a few years back, and the government weighed offers to have private firms take it over. Century was among several potential investors that expressed interest in such a transaction, a newspaper in Cugir reported in 2005, but the plant for now remains in state hands.

Brisk business for Century

Century grabbed headlines in 2004 after it tried shipping 7,500 Romanian AK-47s on a Turkish flagged ship bound for New York. These firearms — fully automatic machine guns, according to a federal law-enforcement worker — were illegal in the United States. Authorities halted the ship in an Italian port.

It turned out that Century was taking advantage of a customs rule that permitted imports of banned guns into bonded warehouses so long as the guns were destroyed. Century was scrapping the firearms for parts, and had a license, an ATF spokesman said at the time. It is unclear what happened to the parts.

The company also builds a wide variety of weapons aside from the WASR-10. One of them, featured in the September issue of Small Arms Review, is a semi-automatic version of a Soviet machine gun that was introduced at the height of World War II. It comes with two 250-round ammo belts, and is designed to be mounted on a rolling carriage with an armor shield.

Century’s recipe for the WASR-10 is straightforward: Start with a legal imported weapon. Break it down. Apply some Yankee ingenuity.

The American Rifleman article described the process. After arriving in the U.S., the rifles are disassembled, and six U.S.-made parts, including a trigger, hammer, and gas piston, are added. (That trims the number of foreign parts so the gun can be considered American-made, and not subject to the sporting purposes test.) The magazine wells are machined out to accept a larger “double-stack” high-capacity magazine that can hold 30 or more rounds of ammo.

The article goes on to say that the expiration of the domestic “assault-weapons ban” means U.S.-made guns can have features such as threaded muzzles, folding or collapsing stocks and bayonet lugs. But since the import laws continue to restrict those features, Century threads the muzzles and welds on and machines new bayonet lugs after they have entered the United States.

The rifle also comes with a batch of accessories, including two 30-round magazines, and a bayonet, according to the American Rifleman report.

J&G Sales — a top online dealer based in Prescott, Arizona — sells a Romanian WASR-10 with a 30-round magazine for $409.95, with a discount for multiple purchases. On its website the retailer lists almost a dozen iterations of semi-automatic AK-47s — all Century products.

“The WASR-10 proves that Mikhail Kalashnikov came up with such a fantastic design that even a low-cost importer who has to cheaply modify it in order to comply with ridiculous government regulations can’t screw it up,” an online reviewer wrote of the gun last spring.

Wheeling and dealing at the border

Far removed from Century’s import facility, WASR-10s are showing up in border crime cases.

In March of last year, a 48-year-old Mexican was stopped in the southbound lanes of the Anzalduas port of entry in Mission, Texas, allegedly with five Century WASR-10 rifles and 10 high capacity magazines stuffed in the cargo panels and front and rear bumpers of his Chevrolet suburban.

In May, a 20-year-old Wilcox, Ariz., man was stopped walking to Mexico at the Douglas port of entry when officers noticed a bulge in his clothing — a bulge that turned out to be a Romanian AK with a pistol grip and collapsible stock strapped to his body. He also had a 20-round magazine in his sock. He told authorities he was walking to Mexico to close a deal with a man who requested he purchase the rifle for him. He pleaded guilty and his sentencing is scheduled for later this month..

Last week, indictments were unsealed in federal court in Del Rio, Tex., charging three men with attempting to smuggle at least 40 assault weapons from San Antonio to Mexico last summer. The guns included several WASR-10s as well as a Romanian-made assault pistol imported by Century that some gun owners consider a sawed-off version of the WASR-10, court documents show.

Experts say the reasons driving the demand for the WASR-10 are manifold. The gun can be fitted with a folding stock that makes it shorter and more concealable. It can also be easily upgraded. A study by the Woodrow Wilson International Center for Scholars last summer found that many of the rifles recovered in Mexico had been converted to select-fire machine guns.

The economics are also compelling. An AK-47 sold in Mexico fetches three to four times its purchase price along the U.S. Southwest border, or between $1,200 and $1,600, according to the study. In the interior of Mexico, the authors found, the rifles are even more desirable, fetching a $2,000 to $4,000 premium above their purchase price.

The straw buyer problem

The case that ensnared Galloway exposed the problem of trafficking networks disguising their purchases through straw buyers as well as the complications of bringing prosecutions against dealers and buyers allegedly involved in the distribution chain.

George IknadosianGeorge Iknadosian, the dealer who owned X Caliber Guns, sold more than 700 guns to two networks that were trafficking firearms to Mexico, prosecutors alleged.

At least 320 of the guns were the same Romanian AK model that Galloway signed for, investigative reports show.

Dozens of the Romanian guns purchased at X Caliber later surfaced at crime scenes in Mexico, according to ATF reports. In some instances, they helped fuel battles between warring cartel factions that were the most intense in Sinaloa history.

In 2008, Iknadosian was arrested, and X Caliber was shuttered. Along with two alleged traffickers, he was charged with fraud, conspiracy and money laundering, among other crimes. Iknadosian was tried several months later in state court in a case that investigators thought was air-tight.

Iknadosian, who previously owned a gun store in southern California, had grown impatient with strict gun laws there, which include a ban on high-capacity assault weapons. Arizona offered a more gun friendly environment. Soon, federal authorities allege, he became the go-to dealer for two groups smuggling arms to Mexico.

One of the networks, authorities allege, was run by two brothers, Cesar and Hugo Gamez, who appeared to have little trouble finding young adults willing to front large purchases of guns for them.

Hugo worked at a vehicle emissions testing station in Scottsdale, where he enlisted Galloway and other co-workers. Cesar solicited people at big box stores and parties, where he impressed with his red Camaro. Another recruiter was a woman known as “Peekachu.” Most of the so-called straw buyers were in their late teens or early 20s.

Steven Fouts, 19 at the time, told investigators he was approached by Cesar in a Walmart. Cesar promised all he would have to do was sign for some guns at the X Caliber shop and deliver them to him. Fouts completed the paperwork and delivered 16 Century rifles.

Another straw buyer, Grant Dorman, told investigators he was dyslexic and could not read or write, but would bring along a friend, Anthony Uzeta, to help fill out the forms. Dorman and Uzeta, who worked together at the emissions center, purchased 49 Century AK-47s for Cesar and Hugo.

Galloway, who signed for 13 of the guns, was tripped up when he claimed to investigators that he had purchased the firearms for $400 to $500, sold them for $150 and made a profit. When ATF agents pointed out he could not have made a profit selling the firearms for less than he had paid for them, he admitted to being part of the scam.

The routine was followed over and over again. More than 170 of the WASR-10 rifles were processed through the straw buyers between November 2007 and April 2008, ATF records show.

“My job is to sell,” Iknadosian was heard to say, in a secretly recorded conversation with a federal informant in early spring 2008. “When you guys buy them, I run the paperwork. You’re okay; you’re gone. And I get the money, and I don’t give a crap.”

When he was arrested on May 6, according to an ATF report, agents interviewing Iknadosian at his home in Glendale asked whether he knew where all the AK-47s were going.

Iknadosian: “They were going south.”

ATF: “How far south?”

Iknadosian: “Mexico.”

Iknadosian declined to be interviewed. His attorney, Thomas Baker, subsequently argued at trial that the conversation had been mischaracterized, and that Iknadosian was merely guessing that the guns were going to Mexico. He said Iknadosian believed the guns were really going to gun shows for resale.

According to Baker, Iknadosian was “baited” by the ATF informant, and was merely passing along information about other cases he had learned about from ATF agents.

Carnage south of the border

May of 2008 would be registered as the most violent month in Sinaloan history.

As 20 federal police served a warrant to search a security company known as “Culiacán del Pacífico” in the heart of Culiacán, tensions were running high. Just two days earlier, on May 8, 25 gunmen, wielding AK-47s and reportedly a bazooka, descended from five cars and opened fire on a small group of people leaving a shopping center. In a matter of minutes, four people were dead, among them Edgar Guzman Lopez, the son of Joaquin Guzman Loera, the infamous head of the Sinaloa Cartel.

ATF documents say that one of the AK-47s recovered by authorities after the May 26th firefight in Sinaloa was a ROMARM/CUGIR model GP WASR 10/63 7.62 rifle, serial number SBH-4629-85 — the gun purchased by Camron Galloway on January 30 from X Caliber. Credit: ATFThe gunmen were eager to send a message: Hundreds of spent cartridges were found at the scene of the crime. The death of the younger Guzman ended any hope of a truce between the warring factions of the cartel — Guzman’s and that of the Beltrán Leyva brothers.

The atmosphere was such that anyone in uniform had become a target, and as the police served their warrant at the security firm, they came under fire. A short gun battle ensued. Two suspects were injured, including Alfonso Gutierrez Loera, the cousin of Joaquin Guzman Loera, as police overran what was a weapons safe house. Among the recovered cache: one .50 caliber rifle, one grenade launcher, three grenades, eight bullet-proof vests, more than 3,500 rounds of ammunition, one H&K G-3 rifle, and 12 AK-47s.

Six of these AK-47s, including five Romanian-made WASR-10s that were imported by Century, had been purchased at X Caliber in February 2008 through straw buyers working for the Gamez brothers.

But the carnage wasn’t over. On May 26, police received a call close to 11 p.m. that an armed group had fired shots in a residential neighborhood of Culiacan. Upon arrival, the cops were ambushed by suspected members of the Beltrán Leyva Organization wielding AK-47s. A firefight ensued.

Hundreds of backups from the police and army arrived as the battle intensified, covering two city blocks and stretching into the early hours of the morning. When the battle ended seven policemen were dead, another died later, and three were injured. Authorities captured two suspects and killed another. They also seized seven AK-47s, 36 magazines, and 500 rounds of ammunition. Subsequent investigations revealed that one of the AK-47s was ROMARM/CUGIR model GP WASR 10/63 7.62 rifle, serial number SBH-4629-85 — the gun signed for by Galloway on Jan. 30, 2008 from X Caliber.

The case goes awry

Less than a year later, in March 2009, Iknadosian went to trial. Prosecutors from the Arizona attorney general’s office used his conversations with the federal informant and the comments he had made at the time of arrest to argue Iknadosian knew the guns he sold were headed to Mexico.

Among the evidence, Galloway and other straw buyers testified that they had participated in an elaborate ruse, signing for the guns but never paying for them with their own money or intending to take ownership of them. At the same time, the witnesses testified they never heard Iknadosian talk about Mexico.

ATF has long taken the position that since an accurate record of dealers’ firearms sales is required by federal law as an aide in the tracing of crime guns, untrue statements on those records — known as Form 4473 — are sufficient to prosecute dealers.

“It is a no brainer,” Jack Patterson, a retired senior ATF lawyer says of the Iknadosian case. “During my time at ATF, this would seem to be a case begging for federal prosecution,” he said.

But some federal courts have started taking the position that more is required — that the true purchaser must himself be legally prohibited from receiving or possessing firearms, because of a previous criminal conviction, for example, in order for the dealer to be prosecuted.

It turned out that neither Cesar nor Hugo Gamez had criminal records. In theory, they could have legally purchased the weapons. It also turned out that one of the federal courts taking a harder line was the 9th U.S. Circuit Court of Appeals, which covers Arizona.

Federal prosecutors declined to bring the case. But Arizona state prosecutors were eager to step in, and they thought they had found a winning strategy.

At Iknadosian’s trial, they argued that since the case was brought in state court in Arizona the federal court precedent was irrelevant. And, they argued, Iknadosian’s complicity in the straw purchases, as evidenced by the undercover recordings and testimony of the straw buyers, was a crime under the state fraud statutes.

But Maricopa County Superior Judge Robert Gottsfield took the same view as the 9th Circuit, that buying for someone who himself could legally purchase weapons did not constitute fraud. On March 18, 2009, he dismissed the charges. The state considered appealing but determined that a new trial would be barred by the Fifth Amendment’s protection against double jeopardy.

The ATF has notified Iknadosian that it does not intend to renew his license, which is up for renewal. According to Baker, Iknadosian has requested a hearing.

Iknadosian is also fighting to recover his assets, estimated at $2.2 million, which were seized when he was arrested. He has sued the state of Arizona for wrongful and malicious prosecution and for refusing to return the assets.

Meanwhile, the evidence grows of the flow of weapons from U.S. gun shops through straw buyers to Mexican criminals.

In late January, federal authorities charged 34 Arizona residents with buying some 700 guns for the Sinaloa cartel. Some 560 weapons were recovered. Many of them were traced back to buyers after they were confiscated by customs inspectors at the border or following their use in crimes in Mexico. Among the guns purchased were dozens of AK-47-type rifles — including many of the Romanian WASR-10s.

Steven Dudley, William W. Cummings, Sorin Ozon and Adrian Mogos contributed reporting to this article.

This story was funded in part by a grant from the Joyce Foundation.