Sept/Oct. 98
Behind the News

Eleven Years Later: The Firearms Owners’ Protection Act
by Nancy Norell, contributing editor

Watching your baby get up and walk is one of life’s great moments. It makes just about every sacrifice worthwhile, even if the baby is a law.

The Firearm Owners’ Protection Act was passed in 1986 when I worked for US Senator Jim McClure of Idaho. There were times when it felt like this baby was being born sideways. The major goal of this legislation was to refocus federal firearms law in a way that would protect peaceful firearms owners from the egregious civil rights violations that had been rife since the Gun Control Act of 1968 came into force. And there were times when it looked like the law would never serve the other purpose it was written for—to put violent criminals behind bars.

The creation of a law is a quixotic and contentious business, and as my boss (Sen. McClure) said, "Nancy, we follow the laws and we eat hot dogs, and it’s a good thing most people don’t know what goes into either one."

One of the most interesting steps in writing legislation is something called a "mark-up." This is when Senators actually discuss and write the language in a bill. It’s not as formal as hearings, which believe me, can be dull as dirt. In a mark-up, the Senators argue, joke and bargain like actual human beings, with little of the pompous language you hear from the Senate floor. My first mark-up was an eye-opener.

Senators like to limit who can watch a mark-up, so often they choose a tiny, inconvenient room. This particular mark-up was a classic. It was in a cramped, overheated cell in the Capitol building. Only the Senators and a few staff members were allowed. I was loaded for bear, so to speak, with armloads of files containing statistics, legal cites and so forth. No chairs for us worker bees. And there were the Judiciary Committee members, the Senators themselves. In the flesh.

Most of the flesh belonged to Teddy Kennedy, who removed his suit jacket, revealing steamy, ecru sweat stains under his meaty arms. Sen. Joe Biden, his face beatific with self-satisfaction, pontificated. Blinded by my own perspiration, I listened as each Great Man held forth. What was fascinating about this mark-up was how little these Great Men knew about the bill they were supposedly writing.

But even more ignorant were the members of the press.

Clueless

The Senator’s press secretary and I had to explain to reporters what the bill was about. None of them had a clue, although many were writing stories implying that the purpose of the bill was to get deadly firearms into the hands of criminals and lunatics. And with a typical attention span of 30 seconds, they had a hard time grasping the meaning of a long and very technical piece of legislation. We finally boiled our explanation down to one blip:

"The purpose of the Firearms Owners’ Protection Act is to punish dangerous prohibited persons who use firearms. It is to protect firearms owners from civil rights abuses. It directs law enforcement efforts away from non-violent paperwork mistakes. It obliges law enforcement to focus on the individuals who present a real threat to society."

And indeed that was a major purpose. What most people think of as violent firearms crime—murder, robbery, assault—is state crime, not federal. The only way the US Congress has any jurisdiction over firearms is through interstate commerce. So, federal firearms law deals almost exclusively with buying, selling, or transporting firearms. Our goal was to give federal prosecutors the tools to lock up dangerous criminals who were rash enough to do these things.

If enough of these criminals were locked up, we reasoned, the streets would be safer for regular people. And peaceable gunowners would be left to enjoy their Second Amendment Rights.

As the bill made its way through the legislative process, we consulted with the Justice Department and the Bureau of Alcohol, Tobacco and Firearms. Time and again they came to Sen. McClure with big, sad tears in their eyes—they needed more severe, mandatory penalties for gun crimes. And Sen. McClure was agreeable, as long as the penalties were designed for really dangerous thugs.

So, with the passage of time, the bill became a law. And very soon thereafter, Sarah Brady and her pals were calling for more gun control laws. Not for enforcement of existing law, which was designed to send predators to jail for a long, long time, but to "get the guns off the streets." As if the guns—not the drug dealers and robbers—were committing the crimes.

It was as if the law didn’t exist.

But some aggressive and clever federal prosecutors have finally discovered that the law Sen. McClure and Congressman Harold Volkmer worked so hard to pass 12 years ago can be a powerful tool for reducing violent crime.

‘Exile’ in Richmond

Strict enforcement of federal firearms law against armed, violent criminals has dramatically cut the homicide and armed robbery rate in Richmond, VA. Authorities credited the program, dubbed "Project Exile," with reducing gun-related homicides from 140 last year to 34 so far this year. Gun related armed robberies are down by a third.

Here’s how it works: Every time state troopers arrest a criminal with a gun, they refer the case to a special Bureau of Alcohol, Tobacco and Firearms task force. The task force recommends federal prosecution when the case falls under federal law. Law enforcement and prosecutorial efforts are coordinated. If the suspect has been charged with both state and federal crimes, he is tried on the federal charges first, and if the federal charges stick, the state charges are dismissed. If the federal charges fail, prosecutors can pursue the state charges. Suspects are held without bond, and no plea bargaining is allowed. Finally, prosecutors seek maximum sentences under federal law.

The sentences range from five to 30 years, and terms must be served consecutively. Fines range from $1,000 to $10,000.

According to the federal prosecutors’ office in Richmond, the most common charge is "felon in possession of a gun." It is a violation of federal law for a convicted felon even to touch a gun. The other charge that succeeds in giving street thugs prison time is under USC 924 (c), which enhances penalties for those who use a firearm in a crime of violence, or in connection with drug trafficking.

Aggressive Prosecution

According to a Washington Post story by R. H. Melton, aggressive prosecution of federal firearms violations last year resulted in the conviction of 191 of the 261 persons arrested on gun violations; 137 were sentenced to an average of 56 months in jail.

James B. Comey, the executive assistant US attorney who was instrumental in setting up Project Exile, said the number of guns confiscated in Richmond when police make an arrest dropped from 135 a month to 67. This indicates crooks are learning that it’s risky to do crimes while carrying a gun.

Before Project Exile, Richmond had the highest homicide rate of any city in the United States, except New Orleans. Comey said of Project Exile, " ... It’s about locking up criminals with guns."

Hampton Roads, VA, was another city with a disproportionately high rate of violent gun crime. US Attorney Helen Fahey decided to bring Project Exile there as well. She said, "Families in some neighborhoods are virtually prisoners in their own homes. It is time that gun thugs be locked up rather than those innocent families."

New Rule

She said, "The ‘new’ rule I am announcing today [Jan. 22, 1998] is quite simple: NO GUNS IN THE HANDS OF CRIMINALS. That message is directed at those previously convicted of a felony or engaged in drug dealing. If you are found carrying a gun you will be arrested by federal authorities, appear in federal court, be detained as a danger to the community, convicted of federal violations, and sentenced to lengthy prison terms. In short, you will be exiled down from our community to a federal prison."

I found particularly interesting a story in The Richmond Times-Dispatch by Tom Campbell. It puts a face on the statistics, and the face belongs to one Melvin Douglas Smith, 22, known on the street as "Bug."

"He was definitely a player [drug dealer]," said Philip J. Caudery, a Richmond police officer. "I’ve worked [in Smith’s neighborhood] seven and a half years. It’s pretty hard to work over there and not know Melvin Smith. ...He was known and feared by people in the community."

According to court filings, Smith had three previous murder arrests. He acknowledged that he had been dealing drugs since he was 15. In addition to the murder charges, he had been charged four times with larceny, once with vandalism, once with resisting arrest, once with assault, once with wounding, four times with firearms violations, once with failing to appear in court and once with obstruction of justice.

Smith had been arrested and convicted, but he never faced any prison time until November of 1997, when he was sentenced to 16 years for trafficking crack cocaine while carrying a 9mm Ruger pistol and a short-barreled shotgun. Your classic 924 (c).

"Bug" made a big mistake when he committed the traffic violation that allowed Officer Caudery to pull him over. As "Bug" got out of his car, Caudery saw crack cocaine in a plastic bag. He also found a loaded short-barreled 12-gauge shotgun on the floor in front of the passenger’s seat—a ten-year mandatory sentence. A loaded 9mm Ruger semi-automatic pistol was under the driver’s seat, a round in the chamber—that’s five years, mandatory.

The program has drawn wide support, and a call to try similar programs in other high-crime areas. NRA Executive Director Wayne LaPierre told the Post that the program "ought to be in every major city in the country where there’s a major crime problem. The dirty little secret is that there is no enforcement of federal gun law."

Enhanced federal firearms crime prosecution is being considered in Philadelphia, PA and Rochester, NY.

In the past, the law went unenforced because prosecutors claimed that they did not have the money or the personnel to seek convictions. But a Reuters story points out that US Sen. Arlen Specter (R-PA) has reopened a Senate appropriations bill to set aside $1.5 million for extra federal prosecutors, investigators and other resources to set the project up in Philadelphia.

Reuters said, "Operation Exile in Richmond was launched without extra resources or special endorsements from the White House and Congress."

The Clinton White House is not enthusiastic about the Philadelphia project. White House spokesman Joe Lockhart told Reuters, "Our concern is that running this program somehow becomes an excuse not to fund these other programs and that would be a mistake."

It’s clear to me that the Clinton White House is dragging its heels because effective enforcement deflates further gun control initiatives against peaceable citizens. I think it is obvious that the Clinton White House does not care about violent firearm crime or tragedy. And it is one more step toward the Clinton Administration goal of a passive and helpless citizenry.

A spokesman for the US Attorney’s Office in Richmond said, "Experience since US Attorney Fahey announced the project demonstrates that federal prosecutors can undertake a large scale prosecution effort of gun crimes with relatively limited personnel resources, and with a quick disposition of cases."

Perhaps another reason federal prosecutors have been slow to press for federal gun law convictions is the petty level of the typical violation. As S. David Schiller, the senior litigation counsel in the US attorney’s office said, "These cases are not sexy. These are mutts with guns."

But with "mutts" off the streets, many ordinary Tidewater area Virginians are a lot safer now.

Good to see the baby not just walk, but go out and kick butt.

Nancy Norell is a contributing editor to Gun Week, Gun News Digest, and Women & Guns. She worked for Sen. James McClure (R-ID) until he retired in 1990. She lives with her husband and six shedding cats in an old house in South Central Pennsylvania.

Sen. McClure lives in a lakeside cabin in McCall, Idaho with his wife, Louise.

Melvin "Bug" Smith lives somewhere behind bars.