Censure and Move On
All (OK, almost all) the gun bloggers are calling for the heads of CNN correspondent Drew Griffin and the anonymous Texan who violated subsections (a)(5) and (a)(3), respectively, of 18 U.S.C. 922 on national TV on Thrusday, February 17, 2005. To recap, the “straw purchase” allegation is a strawman; no such violation occurred. Nor did the Houston, TX seller Griffin contacted through GunsAmerica.com appear to have committed any crime; he lawfully sold his gun to a fellow Texan (whom I’ll dub “Mr. Straw”), which he had every right to do. However, if Mr. Straw turned around and transferred it to Mr. Griffin, a non-Texan, he violated 18 U.S.C. 922 (a)(3), and Griffin himself violated 18 U.S.C. 922(a)(5) if he brought it back to his home state. [Alternatively, it's possible that no laws were broken, and Griffin grossly misled viewers as to what he and Mr. Straw had actually done.]
Assuming the violations did in fact take place, I can think of few worse things that the ATF could do than to prosecute them aggressively.
First, CNN has no shortage of lawyers to beat the rap, at least for Griffin and probably for Mr. Straw. That’s a bad reason not to prosecute. Second, making an enemy out of a natural ally like CNN would be a dumb thing to do. That’s an even worse reason. Third, as the ATF has observed, there’s no evidence Griffin and Mr. Straw had any criminal intent. That’s a very good reason to exercise prosecutorial discretion in their favor. The last thing we need is a more aggressive ATF that throws the book at everyone who inadvertently missteps in the labyrinth of America’s arcane gun laws.
That said, the ATF should send a strongly worded letter stating their opinion that one, probably two, crimes were in fact committed, and that CNN has a duty like everyone else to obey them. An on-air apology by Griffin - perhaps with a follow up segment along the lines of “Buying a gun - not as easy as we thought” - would go a long way, too. Unfortunately, given CNN’s terrible record, that’s probably too much to hope for, but that’s a reason to stop watching CNN; it’s not a reason to bring criminal charges against innocent violators of laws even most lawyers don’t understand.
UPDATE: Kevin Baker says no crime was committed after all - just another example of dishonest journalism.
February 23rd, 2005 at 12:17 pm
Gun control statutes are never enforced with “intent” in mind. If I inadvertently carry my handgun across the Virginia border into D.C. or Maryland, you can damn sure bet they will throw the book at me. Likewise, if I accidently stumble on a Federal gun control law, lets say by changing the magazine on my imported SKS rifle so that it’s removeable instead of fixed, the ATF will do the same.
They have a long history of throwing the book at anyone and everyone for even the most minor of offenses. They have a history of vigorously enforcing the law. All we are asking for here is equal treatment.
CNN should not be exempted from the law just because they are celebrity journalists.
February 23rd, 2005 at 12:27 pm
[...] evious Post | Main |
CNN Rifle Felony Update
|By SayUncle|
Xrlq calls for an apology and not an arrest. I should point out that this issue is rath [...]
February 23rd, 2005 at 1:16 pm
“That said, the ATF should send a strongly worded letter stating their opinion that one, probably two, crimes were in fact committed, and that CNN has a duty like everyone else to obey them.”
What?
Why would they send a letter, documenting proof of federal felonies, and then *not act on it as they would do to anybody else?*
This makes no sense.
“Second, making an enemy out of a natural ally like CNN would be a dumb thing to do.”
Are you speaking for the ATF? Or for “gun bloggers?” Because again, this doesn’t make sense - look at the report that was made. CNN isn’t an ally in the gun rights struggle, they’re actively working to deceive the public and impose restrictions and more laws. They’re not an ally, they’re not attempting to help, *why* would we *not* insist that they be held to the same standard you or I would? Now, the ATF doesn’t want to piss off CNN - so if you’re referring to why I don’t expect ATF to press charges, yes, you’re right.
We didn’t pick a fight with CNN. They picked one with us, and since they broke the law, they should pay the same penalty as the other poor souls who accidentally, unknowingly broke laws - and ATF threw the book at them. (Leaving aside the trolling for violations that they’re well-reputed for at gun shows)
February 23rd, 2005 at 1:26 pm
So, lemme get this straight. You’re advocating NOT prosecuting CNN because they’re rich and powerful?
That’s about as unAmerican a position as I can think of.
I think you need to rethink this one. You might be able to make a case that you don’t want to see CNN prosecuted because you wouldn’t want to see some ordinary slob spend 10 years at club fed for the same thing. (And it happens. A Lot). But I don’t think CNN would extend us the same concern.
February 23rd, 2005 at 2:03 pm
Xrlq,
The thing is that the ATF has a rather extensive history of busting us peasants despite intent or lack thereof to break the law.
I don’t think anyone, even the CNN reporter should be prosecuted for violating a prior restraint based gun control law, but if consistency is called for then the atf backing off due to the lack of harmful intent on CNN’s part would by hypocritical in the extreme.
If it were me or some other common gun nut then intent would be the very last thing the atf considered. There are countless tales of people being branded felons & sitting in jails over similar violations even thought the atf knew they had no harmful or devious intent.
But what I fear will happen is the atf will give a pass to CNN & go after the seller. That seems the most likely course for them & one of the underlyign reasons why I discuorage calling the atf for anything. They’re not benevolent even if you’re cool with the gun laws they enforce. They only thing that keeps them from being worse than they already are is their generally incompetent.
But you are right - they are probably looking at the amount of legal resources that CNN has (though they have equal resources at worst) & the fact that CNN is their ally in the war on gun nuts. Thise two things will weigh more in their decision making process than any discussion of intent.
February 23rd, 2005 at 3:11 pm
Addison: CNN is a natural ally from the perspective of the ATF, not the gun bloggers. That’s a lousy reason for the ATF not to go after them, but realistically speaking, it probably will play some role. The reason they should let CNN off wtih a stern warning is because their violation was innocent and extremely technical - as nearly all the gunbloggers calling for their heads concede.
Publicola: abuses exist, sure, however, I suspect that the total number of actual abuses is a small fraction of the ones that would occur if the ATF threw all prosecutorial discretion to the wind and went after every technical violator with both barrels. Case in point: Ruby Ridge. It’s been well over a decade since the ATF got rightly blamed for entrapping him and wrongly blamed for his wife’s murder (the shooter, Lon Horiuchi, was an FBI sniper, not ATF), and yet gunnies can’t stop talking about him. Not about cases like his, mind you; him personally. If his case were anything but an aberation, we’d have long forgotten about him, as there would have been hundreds if not thousands of Weaver cases since then.
I don’t work for the ATF, so I can’t say with any certain what their policy is in determining which crimes to prosecute and which ones not to. I do know, however, that if lack of criminal intent does not play a major role in that decision, it certainly should, and I can’t see lobbying them to do the opposite just to “get” CNN. The short term high would be nice, but the hangover would last for years if not decades to come.
February 23rd, 2005 at 3:25 pm
Perhaps, if you speak one of those dialects where “bad” means “good.” Otherwise, I’m not sure how you can read “[t]hat’s a bad reason not to prosecute” and think I am advocating that they not prosecute on that basis.
That was my point, basically, and while I know that it happens some, and a lot more than I am comfortable with, I don’t think it happens nearly as frequently as it would if the ATF adopted a general policy of throwing the book at every individual believed to have committed even the most technical violation of any firearms law. And if they do have a policy like that, it should be ended yesterday.
Neither do I, but that’s completely beside the point.
February 23rd, 2005 at 7:42 pm
The ATF should prosecute CNN to the full extent of ther law. We have no idea how many people have been setup by the ATF nor how many abuses have taken place though one can safely assume they are not uncommon. Exactly what justification is there for letting CNN off when the ATF routinely harasses those who do not have the power ofd the media. No wonder the public distrusts the legal system and its agents.
February 23rd, 2005 at 11:48 pm
Xrlq, can you clarify the “intent” thing for me?
Let’s assume the transfer to Griffin did occur, and Griffen brought the gun to Georgia. So, CNN and Griffin definitely intended to make the purchase and the transport. Isn’t the “intent” argument based on intent to commit the act itself, as opposed to ignorance of the law? Yeah, I know, the “ignorance is no excuse” thing is a staple of TV crime shows, but I’ll be surprised if you tell me that ignorance is a positive defense.
February 24th, 2005 at 4:37 am
Xrlq,
The reason you hera about the Weaver incident & the Davidians isn’t because similar events don’t occur - it’s because usually the BATFU (stole that from David Codrea) usually doesn’t end up with dead victims. Last thing I recall hearing was a gun store owner in Az who got “raided” during business hours. Black hoods, MP-5’s, etc. in his strip mall store. The bastards took all his guns & threw them indiscriminantly & none too delicately into plastic trash cans & hauled them away. His infraction? He didn’t get a city pawn permit required of anyoen who buys used firearms. It’d have run him $75 if he’d have known it applied to him. Federal lawsays that an FFL has to comply with all local laws as well as state & federal.
There are a dozen or so cases I coudl pjt to within the last ten years or so - usually the BATFU steals property & drags the court case out in the hopes of drainign their victims financially. That’s just not nearly as sexy as someone getting killed.
So just because Weaver is all you hear about don’t assume that’s all that’s been going on.
& the point is the BATFU is not a bunch of nice guys trying to do a public service - they’re a bunch of asses who don’t let common sense or constitution interfere with their conviction rate. If you have any friends in the DA’s office ask him to pull the figures on the BATFU’s conviction rates (for cases they bring). Then ask him to see ho wmany offenders were violent criminals. The unusually hgih rate will surprise you; the lack of harmful intent probaby won’t.
I’ll stop before I turn this into a blog post of its own. I’m just saying that if there’s one federal agency to not give any benefit of the doubt to it’d be the BATFU. Go to Keepandbeararms.com & look under their atf abuses category (in the right margin) to see some non-Weaver things they’ve done.
February 24th, 2005 at 7:38 am
“CNN is a natural ally from the perspective of the ATF, not the gun bloggers. That’s a lousy reason for the ATF not to go after them, but realistically speaking, it probably will play some role.”
Ah, well, we agree on that. ATF won’t want to prosecute CNN, and the likelihood is slim, I agree.
But that’s why our pressure, our calling for their heads, our INSISTANCE that this be investigated thoroughly is so important.
Sure, it’s entirely possible that CNN never bought a gun, never left Atlanta, never did a score of things. And I’d prefer that CNN have to detail this to ATF in a manner that will allow other people who don’t know how many other lies or deceptions CNN had on that segment to understand that CNN was out to score cheap political points.
But we shouldn’t TRY to cut the poor news network a break, for saying that they broke federal law. That’s just silly.
Do I expect anybody to get the treatment we would? No. But then, that’s why I’m fired up, and why we have to insist on heads rolling.
February 24th, 2005 at 10:16 am
Jed: Common law crimes require some form of criminal intent, some general, some specific. Murder is a general intent crime, as the murderer must act with ill intent, but needn’t specifically intend that his victim die. Attempted murder, by contrast, is a specific intent crime, meaning you can’t be charged for attempted murder just for doing something bad that could have gotten someone killed, even though said act would have constituted murder if you had tried. Example: deliberately shooting someone in the leg with the intent to torture him. If he dies, it’s murder. If he lives, it’s not attempted murder.
Regulatory laws, by contrast, are generally “strict liability” crimes, meaning if you did the crime, you are liable, whether you intended anythind bad or not. So if Griffin had taken possession of the weapon and transported it back to his home state (he probably didn’t, according to Kevin Baker’s last update) his lack of a criminal intent would not have nullified the crime. It would, however, play a major role in determining which cases the ATF will pursue and which ones will get let off with a warning.
[Note also that in some cases, though not this one, ignorance of the law can be a defense to criminal prosecution. That's typically the case for tax deficiency notices vs. criminal actions for tax evasion; it's also the reason Linda Tripp was not prosecuted for illegally taping her conversations with Monica Lewinksy before getting a court order permitting her to do so.]
Publicola: I’m sure there are too many examples like yours to count. They aren’t limited to firearms, either; heavy-handed enforcement seems to be the norm for everything within that agency’s jurisdiction. A few years back, a popular Pasadena restaurant had its liquor licensed yanked for several months over a very technical infraction of a Pasadena ordinance the Pasadena authorities themselves didn’t seem to care much about. I don’t know of any such cases involving tobacco, but I can’t imagine their heads are any cooler when it comes to that. My point is that these cases are the sort of things we ought to be attacking the ATF for - using too little prosecutorial discretion rather than too much. By calling for Griffin’s head over a violation that ensnares one asshole journalist and millions of otherwise law-abiding gun owners, we dilute our message beyond recognition. The absolute last thing we need to do is to give the ATF a mandate to start enforcing laws even more rigidly than they already do.
February 24th, 2005 at 11:04 am
I wonder if there is a way that we can measure how many cases the BATFE decides not to investigate or drops vs those they investigate, execute warrants, or prosecute? Is this information available via FOIA? Something to research..
February 24th, 2005 at 11:24 am
Thanks for the explanation, but I still feel a bit in the dark here. Even in the example of murder, there’s still the concept of performing a deliberate act, irrespective of how the law treats it. IOW, I can still construe this as intent to commit the act itself, rather than intent to violate a particular law. Does any murderer act with specific intent to break PL44-bfrz section 12?
More specific to CNN: interesting distinction between crimes of specific harm, and regulatory law, which I realize is fuzy, because even regulatory law is predicated upon some supposition of harm. But CNN’s actions fall much more in the realm of regulatory, rather than immediate harm, and so this seems to me to weaken the intent argument, in the question of whether ignorance of the law can determine intent.
February 24th, 2005 at 12:57 pm
TF: good question. I doubt the ATF would be dumb enough to specifically favor news companies friendly to the gun control cause, but I could see there being a pattern of treading lightly when dealing with news agencies generally, at least in situations where the purpose of the purchase was to run a news segment and not to actually do anything with the gun (e.g., rob a bank, sell the gun on the black market or, worst of all, use it to protect anyone’s safety).
Jed: In the case of common law crimes, the defendant need not intend to violate a law per se, but does need to intend to do something inherently wrongful. In the case of felony murder, the intent is to commit an inherently dangerous felony, where the connection between that felony and somebody’s death is tenuous at best.
Tax evasion and wiretapping in Maryland are teh only examples I’m aware of where the specific intent has to be to violate a law per se, although I’m sure there are others. But for any crime, especially a strict liability one like a gun law, I would hope that most prosecutor would have the good sense to go lighter on a generally law-abiding citizen who violates a law inadvertently than they would on one who intentionally defies the law.
December 19th, 2005 at 5:30 am
[...] So, head on over and make yourself heard. I like Kevin’s question but think it needs some specific examples, like the press lying to/about Barrett; or CNN breaking the law by transferring a rifle over state lines (though the fact they didn’t do it willfully means no prosecution but they did, in fact, assert that what they did was legal); or that time they lied and said a Glock was a plastic gun that could beat metal detectors at the Capitol Building; Or that one time at band camp . . . [...]