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The Gottlieb-Tartaro Report
Issue 033
September, 1997
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Dear Subscriber,
Public confidence in our federal government has sunk a few more notches, according to recent polls. Outrage at federal behavior appears to have fueled this latest drop. A grand jury in Texas late last month decided not to prosecute a Marine corporal who shot dead an 18-year-old student, and the Justice Department decided not to file charges against four FBI agents involved in the killing of Vicki Weaver at Ruby Ridge, Idaho in 1992.
The Libertarian Party couldn’t stomach the abdication of responsibility, and released a statement that began, “It’s now legal for Marines to use high-powered M-16 assault rifles to kill American high school students and for FBI sharpshooters to gun down mothers holding their infant daughters — without worrying about any criminal penalties.”
Libertarian Party national chairman Steve Dasbach continued, “In America today, your innocence is no guarantee that you won’t be killed by your own government. And incontrovertible proof of guilt is no guarantee that military personnel or FBI agents will be charged with any crime.”
These two decisions, said Dasbach, show that the government is more concerned about protecting the military and FBI from justice than protecting innocent civilians from death.
In Redford, Texas, Esquiel Hernandez, Jr. — a “shy, hard-working” young man, according to neighbors — was gunned down by a four-man squad of U.S. Marines in May as he grazed his herd of 45 goats on his family’s farm. He was the first American killed by U.S. soldiers on U.S. soil as part of the War On Drugs.
The grand jury ruled that the Marines were acting self-defense when they shot Hernandez — despite overwhelming evidence that the high school sophomore never saw the camouflaged Marines in the first place.
“This grand jury sent a deadly message,” said Dasbach, “Anything goes in the War On Drugs. This so-called war has become a military shooting war, with M-16 assault rifles pointed directly at American citizens.”
The grand jury’s decision brought heavy criticism: charges of a military cover-up and demands for a Justice Department investigation because of numerous inconsistencies in the “official” version of the events.
The military claims that Hernandez opened fire with his antique .22-caliber rifle on the four Marines, who were lurking in the scrub brush while on a covert drug-surveillance mission.
In response, they stalked Hernandez for several hundred yards and Marine Corporal Clemente Banuelos killed him with a single shot from an M-16 rifle.
According to Texas Rangers, Hernandez was shot in the side, while facing away from the Marines. The boy lay bleeding for 22 minutes before the Marines called for emergency aid.
The young victim had never been suspected of or arrested for any criminal or drug-related activity.
After the shooting, the Pentagon pulled 240 military personnel from the border area, and said the policy of using the U.S. military in covert anti-drug efforts on American soil was “under review.”
“Was the military upset over the death of an innocent civilian?” asked Dasbach. “No. The Pentagon was concerned because the Marines might face criminal penalties for gunning down a high-school student.”
After the grand jury convened, Pentagon spokesman Navy Lt. Cmdr. Scott Campbell complained that counter-drug operations “are not fair to the members of our armed forces,” because it exposes them to “legal liability.”
The Pentagon said it will ask border states — Texas, California, Arizona and New Mexico — to sign “status of forces” agreements with the federal government, which limit U.S. troops’ liability to local criminal law. Such an agreement would be similar to those the U.S. government signs with foreign nations where American troops are stationed.
Dasbach said “The belief that in America, justice will prevail has been mortally wounded. The only cure: for the judicial system to take immediate steps to bring the killers of innocent Americans to justice.
Cases such as the Hernandez killing might be prevented, said Dasbach, by the following moves:
STATE TO PROSECUTE FBI RUBY RIDGE SHARPSHOOTER AFTER FEDS REFUSE
Lon Horiuchi, the FBI sniper who shot and killed RANDY WEAVER’s wife Vicki Weaver, was charged with manslaughter by an Idaho county prosecutor just before the five-year statute of limitations would have foreclosed criminal prosecution.
The FBI sniper killed Vicki Weaver on August 22, 1992, as she was standing in the doorway of the family cabin in northern Idaho holding her baby daughter. Horiuchi said he was aiming at KEVIN HARRIS, who was fleeing into the house from the sniper's first shot, and did not see Vicki Weaver.
Boundary County Prosecutor Denise Woodbury said Horiuchi was charged with involuntary manslaughter by use of a firearm in a reckless, careless or negligent manner. Woodbury said he fired the fatal shot through the front door “without first determining whether any person other than his intended target was behind the door.”
The accusation paralleled the findings of a special Justice Department task force, which concluded several years ago that Horiuchi “needlessly and unjustifiably endangered the persons he thought might be behind the door.”
The task force recommended the case be considered for prosecution but was overruled by higher-ups. Just the week before HORIUCHI was charged in Idaho, a specially appointed U.S. attorney, Michael Stiles, found no basis for proceeding against the FBI sharpshooter under federal law.
Idaho prosecutors also charged Kevin Harris with first-degree murder for killing U.S. Marshal William Degan. Both Harris and Randy Weaver previously faced a murder trial in federal court in Degan's death and were found not guilty.
The jurors at the first Ruby Ridge trial were convinced that the government was the culprit. Most agreed that the marshals fired first, killing the Weavers’ dog and provoking the gunfight. The acquittal on federal charges did not preclude prosecutors from filing state charges.
Prosecutor Woodbury said at a news conference in Bonners Ferry, Idaho, that she also had investigated the death of the Weavers' 14-year-old son, Sammy, who was killed by a shot in the back on August 21, 1992, apparently as he was running away.
The teenager's death, Woodbury said, “has been determined to be a justifiable killing based on self-defense.”
Horiuchi could face a maximum penalty of 10 years in prison and a $10,000 fine. HARRIS could face the death penalty.
FBI Director Louis Freeh said he was “deeply disappointed" by the decision to prosecute Horiuchi, adding that his job with the FBI's Hostage Rescue Team “involved making split-second decisions.”
Freeh said Horiuchi, a West Point graduate and 13-year veteran of the FBI, would continue to have his legal expenses paid by the Justice Department. One of HORIUCHI’s attorneys, Adam Hoffinger, said they might try to have the case moved to federal court, using a law that permits U.S. government employees to seek such a change of jurisdiction by claiming they were acting in the proper and necessary performance of their duties.
WEAVER and his three daughters now live in Montana. HARRIS lives in Republic, Washington, and works as a welder. HARRIS is out on bail pending trial.
JUSTICE DEPARTMENT ENDS COVER-UP PROBE OF RUBY RIDGE INCIDENT
After two years of investigating the cover-up of evidence about the August 1992 siege at Ruby Ridge, the Justice Department has announced that no additional criminal charges will be filed against FBI officials, but left open the possibility of disciplinary action.
The department said it lacked sufficient evidence to bring obstruction of justice charges against the FBI’s former No. 2 official, Larry Potts, then-deputy Danny Coulson and two other officials, GALE R. EVANS and MICHAEL BAIRD.
HOWARD PEARL, a lawyer for POTTS, said he was pleased. “We always knew this day would come but it’s nice to see it finally arrive,” PEARL said.
Readers will recall that the four FBI men were suspended after allegations that senior FBI officials tried to cover up their roles in the aftermath of the shoot-out at white separatist Randy Weaver’s cabin in a mountainous area of Idaho. Marshals had gone to arrest WEAVER for failing to appear in court to face illegal shotgun sale charges.
The three marshals involved in the gunfight were part of a surveillance operation that had spent more than a year spying on Weaver. They were dressed in jungle camouflage when WEAVER, his 14-year-old son SAMMY and friend KEVIN HARRIS heard their dogs barking and took up the chase.
The FBI snipers were subsequently sent to Ruby Ridge with unprecedented shoot-to-kill orders.
After Weaver’s wife and a U.S. marshal, WILLIAM F. DEGAN, were killed in the FBI attack, a congressional investigation was conducted into whether law enforcement had gone too far in using deadly force.
The Justice Department’s probe resulted only in the single prosecution of former FBI supervisor E. Michael Kahoe, who pleaded guilty to obstruction of justice, admitting that he destroyed the after-action critique of the siege.
Prosecutors had accused KAHOE of destroying the document so that it would not be available for prosecutors when WEAVER and KEVIN HARRIS, an associate, were tried on charges of killing DEGAN. The two were later acquitted.
KAHOE is to be sentenced this month.
The Justice Department also investigated whether federal law enforcement officials committed any civil rights violations or other criminal activity during the confrontation.
The department’s announcement said, “The available evidence does not support further criminal prosecution of FBI officials.”
Sen. Charles Grassley, R-Iowa, who investigated the episode, immediately criticized the decision. The decision “means accountability has still not been achieved. And so, neither has a restoration of the public’s confidence in federal law enforcement,” Grassley said.
Charles Peterson, the Boise attorney who helped represent Weaver, said he disagreed with the decision not to prosecute Lon Horiuchi, the FBI sharpshooter who killed Weaver’s wife because he “clearly took a reckless shot and killed an innocent woman.”
The Justice Department’s Office of Professional Responsibility will be the one to recommend “any disciplinary sanctions, up to and including termination of employment. The FBI will not be the decision-maker regarding any disciplinary sanctions.”
FEDERAL LAW ENFORCEMENT PANEL FINALLY FILLED
The Commission on the Advancement of Federal Law Enforcement finally has its full five-member complement. For nearly a year, VICTORIA TOENSING, a former REAGAN administration deputy assistant attorney general, was the only member of the blue-ribbon panel created by Congress to study federal law enforcement agencies, their priorities and their operations.
The newly appointed chairman of the review commission is WILLIAM H. WEBSTER, 73, a former federal judge who served as director of both the FBI (from 1978 to 1987) and the CIA (from 1987 to 1991). He was selected for this post by Chief Justice WILLIAM H. REHNQUIST.
Other panel members are GILBERT GALLEGOS, president of the Fraternal Order of Police; ROBERT M. STEWART, chief of South Carolina’s law enforcement division; and DONALD DAHLIN, chairman of the political science department at the University of South Dakota. They were chosen by Republican and Democratic leaders of Congress.
Congress created the panel as a part of the anti-terrorism law last year, but provided no funding until this spring, when it included $2 million in the supplemental spending bill for fiscal 1977 that President CLINTON signed into law on June 12.
The panel exists because Republican conservatives in Congress were outraged at the disastrous 1992 and 1993 federal law enforcement sieges at Ruby Ridge, Idaho, and Waco, Texas, and pressed for outside scrutiny of the entire law enforcement system.
Whether this panel will provide the close scrutiny Congress sought remains to be seen.
Mrs. TOENSING said, “There are some very good things about law enforcement and there are some very grave concerns.”
Since leaving the Justice Department, Mrs. TOENSING and her husband have established their own law firm. There, she says, she has been able to see government prosecutions from the other side of the fence.
As a result, she would like the commission to explore the “deference that is given to U.S. attorneys” by the Justice Department.
This commission should be watched closely by gun owners everywhere. At every opportunity for public input to its process, gun owners should do their civic duty by speaking out on the issues, either in person at hearings, or in writing. Be sure to request that your remarks be made part of the record.
UPS DELIVERS — TO AN INSIDER RING OF GUN THIEVES
Well before the recent UPS strike, Jim Reed noticed that an important shipment had gotten lost in the shipping giant’s delivery system.
The Bureau of Alcohol, Tobacco and Firearms asked him about it, because they recovered a stolen gun in San Jose, California, and traced its serial number to Jim Reed, who owns Reed’s Sports Shop there. Reed confirmed that an expected shipment had failed to arrive.
The gun was part of the missing shipment — from Smith & Wesson.
Manufacturers are required to report such stolen shipments to BATF, which puts them on a special computer list.
An investigation recently netted four United Parcel Service employees who were arrested in a theft ring that diverted gun shipments into the hands of co-conspirators who sold the weapons on the street.
The UPS employees allegedly pasted fake merchant address labels over the real ones and off the gun packages went to their buddies.
The ring stole at least 50 Smith & Wesson 9 mm and .40-caliber semiautomatic hand guns, each worth as much as $600.
Only six of the stolen guns have been recovered.
Jo Ann Kocher of the BATF said, “It appears some of the guns were going to gang members, and there are apparently more out there.”
The four UPS employees arrested were Leon Travis Duval, 22, a supervisor, and three other workers: Jose Avalos, Jr., 21; Jonathan Aguila, 23; and Amarildo Jose Padilla, 25.
They face charges of conspiracy, grand theft and possession of deadly weapons.
After the BATF recovered the first gun in mid-June, their investigation unraveled the story. During the first two weeks of August, authorities raided nine sites in the San Jose area and recovered five more stolen guns, bringing the total recovered to six. A total of 16 persons were arrested in connection with the theft ring, including the four UPS employees. Police are still seeking another man.
DRIVERS MAY NOW SHOOT BACK — LEGALLY
The Louisiana legislature recently passed a law allowing drivers to shoot carjackers dead. The law says that such shooting qualifies as justifiable homicide. Lawmakers say the law fires a warning shot against a crime that since the early 1990s has occurred with increasing frequency.
Self-defense laws in many states allow you to kill your attacker, usually in your own home or an inescapable public place, but this is the first that allows killing a person trying to steal your car.
Erika Schwartz, a Louisiana attorney, said of the new law, “It seems that your car is an extension of your home, and you should have an expectation of safety.”
Schwartz has a personal reason to care: Last December, a bandanna-wearing gunman jumped into her white Ford Taurus and stole it as she pulled into her driveway. Schwartz may have attracted the gunman’s attention because she was the 1996 Miss Louisiana and the first runner-up in the Miss America pageant.
Louisiana’s recently passed concealed carry law allows residents with no criminal record to arm themselves in situations where carjacking is likely to occur, a fact that should give pause to carjackers.
Whiners, of course, are saying the law will lead to a bloodbath on the road.
The U.S. Department of Justice provides these statistics about carjacking: the favorite spot for carjacking is a parking lot, followed by city streets, driveways, car dealers and gas stations. Most carjackings take place between 8 and 11 p.m. Half of all carjackings happen on weekends. 27 percent of carjackings occur in December, more than any other month. When carjackers use a weapon, 90 percent use a handgun.
pasadena ammo-registration ordinance revoked
In an unexpected turnaround victory for gun owners, Pasadena, California’s City Council recently repealed its two-year-old ammunition registration measure.
The repeal passed on a 5-2 vote, bringing to an end a requirement that people buying ammunition had to register.
Police had lauded ammunition registration as a symbolic deterrent to crime, but no evidence appeared during the two years of registration that linked it to convictions or crime prevention.
Serious opposition to the measure peaked when anti-gun activists proposed using the ammo registration ordinance as a ”Christmas tree” on which to hang additional burdens, beginning with the addition of thumbprints to the information collected.
Opposition to the measure had begun when it became apparent that registration logs were collected and stored but never used by police. Then police admitted that it would not help them solve crimes because the information would not stand up in court. In fact, gun-related homicides rose in Pasadena during the law’s first year.
The repeal passed after two previous attempts failed, one in May of 1997 and another in July. The May repeal actually passed 4 to 2, but the council members agreed to wait for gun control advocates to draft an alternative proposal before taking the second vote required to formally repeal the law. When the alternative merely added the thumbprint requirement, council members decided that it would not provide the evidentiary power required to stand up in court, and finally repealed the ordinance.
Joel Friedman, chairman of the Pasadena chapter of the National Rifle Association, said “We are very happy the members of the Pasadena City Council have finally come to their senses and ended this worthless city ordinance.”
But Ibrahim Naeem, executive director of the Coalition for a Nonviolent City, said of the failed replacement proposal, “It helps the Police Department and makes our city safer.”
Los Angeles, which passed a similar ammo registration law, is considering whether to add fingerprints to its regulation.
An ordinance similar to Pasadena’s was adopted in Azusa, but repealed a year later.
SENATE MOVES TO SPLIT NINTH U.S. CIRCUIT INTO TWO COURTS
The U.S. Senate has attached a provision to a budget bill to break up the Ninth U.S. Circuit Court of Appeals. The move would create a Twelfth Circuit Court of Appeals that would hear appeals from U.S. District Courts in the Pacific Northwest states, Arizona and Hawaii, leaving only California, Nevada and the Pacific territories of Guam and the Northern Mariana islands in the Ninth Circuit.
The liberal Ninth Circuit has the worst gun rights record of any court, having upheld local records checks under the Brady Act, among other problematic deeds.
The Ninth Circuit also has the distinction of being the most reversed court in history: The Supreme Court reversed 28 of the 29 cases it accepted from the circuit in 1996-97. The high court overturned the Brady Act ruling, along with doctor-assisted suicide and other high profile controversies.
Chief Judge Proctor Hug shrugs off the reversals. “We’re on the cutting edge of a lot of cases,” he said. “If a ruling creates a lot of heat, that’s why we have life tenure.”
Critics like Sen. Conrad Burns, R-Montana, says the 9th Circuit is “out of control.”
The Senate’s bill to split the court faces an uncertain future in the House, which last year fended off a breakup bill and voted to study the court’s 9-state size. The 9th Circuit’s 28 authorized judgeships are more than twice that of any other appeals court, but 9 positions are vacant.
NATIONAL RIGHT TO CARRY RECIPROCITY GAINING SUPPORT IN CONGRESS
H.R. 339, the “Right to Safety and Personal Protection Act,” has picked up eight more co-sponsors, jumping from 45 to 53. The most recent members to sign on are:
Rep Charles Canady (R-FL), Rep. BUD CRAMER (D-AL), Rep. JOHN DOOLITTLE (R-CA), Rep. WALTER JONES (R-NC), Rep. RON PAUL (R-TX), Rep JOE SCARBOROUGH (R-FL), Rep. LINDA SMITH (R-WA), and Rep SONNY BONO (R-CA).
The bill provides for nationwide reciprocal recognition of a concealed carry permit properly authorized in any state.
ASSETS FORFEITURE BILL PASSES HOUSE COMMITTEE
H.R. 1965, an assets forfeiture bill, has passed the U.S. House Judiciary Committee and awaits floor consideration. The bill is seen by insiders as a strong anti-gun measure that would allow federal officials to seize the assets of virtually any business on any pretext, particularly firearms-related businesses.
The bill provides that even if the warrant for the original seizure is struck down, the government would be given additional time in the discovery process to examine the business records to try building a case to continue holding the assets.
The law would apply to even non-criminal regulatory infractions, such as occupational health and safety and environmental infractions.
The law would clearly apply to gun stores, collectors and perhaps even ordinary gun owners with a number of guns. The civil rights questions the bill raises are horrendous.
Gun owners and civil rights activists need to monitor the progress of this dangerous bill.
CALIFORNIA MOVES TO STRIKE DOWN ANTI-GUN CITY ORDINANCE
California Attorney General Dan Lungren has filed a brief urging the Second District Court of Appeals to overturn West Hollywood’s ban on so-called “Saturday Night Specials.” The ordinance conflicts with the state’s firearms preemption statute, the 14-page legal brief argues.
This is the first time the Attorney General’s office has entered the battle over such bans. West Hollywood’s ban served as a model for 30 other cities and counties in the state to place similar laws on their books. The California Rifle & Pistol Association is challenging the gun ban.
ANIMAL RIGHTS CONVENTION POINTS TO HEIGHTENED ANTI-GUN CONFLICT
Hunters beware! The 1997 National Animal Rights Convention recently held in the metro-Washington, D.C. area hosted speakers who recommend illegal activity as the main way to push the agenda to give animals human rights under the law.
The favored tactic to abolish hunting is the “hunt sab,” sabotage of a hunt by animal rights activists who enter the woods and fields and disrupt the hunt with noise, ultra-light aircraft and thrashing around to frighten the game away. STEVE LINDI of the Chicago Animal Rights Coalition argued that hunt sabs are the most effective way to end hunting despite sportsmens protection laws that have been passed nationwide.
Animal extremists are making hunters and the fur industry their primary target. This year numerous mink ranches suffered animal releases by extremists — and most of the highly territorial creatures died in fights with each other after being released from their cages. A pipe bomber also destroyed a mink-feed factory in Utah. An Animal Liberation Front activist has been indicted on 16 related counts, but remains at large.
Hunters are facing a violent, determined movement to eliminate the hunting heritage of this nation. Hunters have one of the lowest political participation rates in the gun rights movement. This is your wake-up call.
WELL EQUIPPED FOR YOUR JOB?
Some people are better equipped for their role in life than others. You would think that U.S. Representative Joseph P. Kennedy II (“Little Joe”) would have political savvy in his blood, coming from the same clan that gave us a President, a U.S. Attorney General, a Senator and various other politicos.
Last issue, we reported that Little Joe injured one of his 16-year-old twin sons with fireworks during a July Fourth celebration at his Massachusetts home—in a state where the possession and use of fireworks is outlawed. Even worse, Little Joe was neither prosecuted nor investigated.
The polls showed it soured voters on his bid for Governor of Massachusetts. He’s not equipped to do the job.
So, Little Joe KENNEDY has withdrawn from the race for Governor.
Across the nation, the office of Rep. Edward Royce, California Republican, provided the following excerpt from a local radio interview. The female newscaster is interviewing the leader of a youth club.
Interviewer: “So, Mr. Jones, what are you going to do with these children on this adventure holiday?”
Mr. Jones: “We’re going to teach them climbing, canoeing, archery, shooting...”
Interviewer (interrupts): “Shooting! That’s a bit irresponsible, isn’t it?”
Mr. Jones: “I don’t see why. They’ll be properly supervised on the range.”
Interviewer: “Don’t you admit that this is a terribly dangerous activity to be teaching children?”
Mr. Jones: “I don’t see how. We will be teaching them proper range discipline before they even touch a firearm.”
Interviewer: “But you’re equipping them to become violent killers.”
Mr. Jones: “Well, you’re equipped to be a prostitute, but you’re not one, are you?”
We guess you could accuse Mr. Jones of “sexism” for his remark, but what do you call the unreasoning prejudice of the interviewer, “gunism?”
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