04.17.13

Leahy: Senate Should Support Bipartisan Legislation to Combat Gun Trafficking

. . . Republican Alternative To Leahy-Collins Amendment A “Half-Baked Alternative”

WASHINGTON  – Judiciary Committee Chairman Patrick Leahy (D-Vt.), author of the bipartisan Stop Illegal Trafficking in Firearms Act that would make illegal the abusive practice of straw purchasing and trafficking of firearms, said Wednesday that a Republican alternative to his proposal would do nothing to help law enforcement investigate and prosecute these crimes.

The Judiciary Committee approved Leahy’s measure, coauthored by Sen. Susan Collins (R-Maine), last month on a bipartisan vote and after the panel held three hearings on the issue of gun violence. Leahy originally introduced legislation to combat gun trafficking in June, and most recently he and Collins announced an agreement with the National Rifle Association on a modified version of the legislation. The Republican alternative, however, was introduced Wednesday morning just hours before the Senate’s scheduled vote and does little to help law enforcement prosecute gun trafficking and straw purchasing crimes, Leahy said.

“The trafficking provisions suggested by the Republican alternative essentially give straw purchasers a road map to avoid prosecution.  As long as straw purchasers ask no questions and bury their heads in the sand, they cannot be held accountable,” Leahy said. “The Republican substitute requires prosecutors to prove beyond a reasonable doubt that a straw purchaser knew for certain that he was buying for a prohibited person.  A straw purchaser could have every suspicion in the world that the actual buyer is a dangerous criminal, but as long as he deliberately shields himself from getting confirmation of that fact, he is untouchable.  Willful ignorance will be their shield.”

Leahy urged Senators to instead vote in favor of an amendment cosponsored by he and Collins that reflects modifications agreed to by the NRA and supported by several law enforcement organizations including the Fraternal Order of Police, the National District Attorneys Association, the Federal Law Enforcement Officers Association, the Major Cities Chiefs Association and the National Law Enforcement Partnership to Prevent Gun Violence. The amendment is also cosponsored by Sen. Dick Durbin (D-Ill.), Sen. Kirsten Gillibrand (D-N.Y.), Sen. Mark Kirk (R-Ill.), Sen. Richard Blumenthal (D-Conn.) and Sen. Angus King (I-Maine).

“The bill Senator Collins and I have proposed prohibits an individual from buying a gun and giving it to someone he or she knows will then give it to a criminal,” Leahy said.  “The Republican proposal inexplicably removes this provision.  So as long as the organizer of a firearms trafficking ring uses a middle-man between the straw purchaser and the ultimate recipient, the Republican proposal makes it easy to avoid prosecution for providing guns to dangerous criminals.”

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Statement of Senator Patrick Leahy
Chairman, Senate Judiciary Committee
On Amendment No. 713 to S.649, Safe Communities, Safe Schools Act of 2013
April 17, 2013

Last Thursday, the Senate rejected the ill-conceived filibuster against considering the Safe Communities, Safe Schools Act of 2013.  After considering the bipartisan efforts of Senator Manchin and Senator Toomey to plug loopholes in the background check system, the Senate will consider a partisan alternative offered by Senator Grassley, and then my bipartisan amendment to prevent criminals from circumventing the existing background check system. 

The Leahy-Collins Amendment, number 713, amends slightly title II of the Safe Communities, Safe Schools Act.  Our bipartisan amendment makes minor changes to the Stop Illegal Trafficking in Firearms Act, which is designed to give law enforcement the necessary tools to combat the practices of straw purchasing and illegal trafficking in firearms.  I commend Senator Collins for her work in developing this amendment and for her strong support of the law enforcement officials who requested this legislation to help them keep our communities safe. 

Straw purchasers circumvent the purposes of the background check system.  Straw purchasers put guns into the hands of someone who is legally prohibited from having one.  And it was an ATF whistleblower who testified last Congress that the existing firearms laws are “toothless.”  We can create better law enforcement tools and that is what we are doing with the Stop Illegal Trafficking in Firearms Act.  We need to close this dangerous loophole in the law that Mexican drug cartels, gangs and other criminals have exploited for too long.

We know that many guns used in criminal activities are acquired through straw purchases.   It was a straw purchaser who enabled the brutal murders of two brave firefighters in Webster, New York, this past Christmas Eve, and it was a straw purchaser who provided firearms to an individual who murdered a police officer in Plymouth Township, Pennsylvania, last September. 

We need a meaningful solution to this serious problem.  We also include suggestions from Senator Gillibrand to go after those who traffic in firearms by wrongfully obtaining two or more firearms.  We worked hard to develop effective, targeted legislation that will help combat a serious problem and that will do no harm to the Second Amendment rights of law-abiding Americans.  

The Stop Illegal Trafficking in Firearms Act, originally introduced as S.54, will make important changes to better equip law enforcement officials to investigate and prosecute the all-too-common practices of straw purchasing and illegal trafficking of firearms.  Straw purchases typically involve a person who is not prohibited by Federal law, purchasing a firearm on behalf of a prohibited person, or at the direction of a drug trafficking or other criminal organization. This practice supports larger criminal organizations, and the illegally-obtained guns are often sold and resold across state lines.  This trafficking in firearms results in the proliferation of illegal firearms and gun violence in our communities.  Gun trafficking and straw purchasing make our communities less safe.

Under current law, there is no specific statute that makes it illegal to act as a straw purchaser of firearms.  Nor is there a law directly on point to address the illegal trafficking of firearms.  As a result, prosecutors must cobble together charges against a straw purchaser using so-called “paperwork” violations such as misrepresentations on a Federal form.  These laws are imperfect, and do not give prosecutors the leverage needed to encourage straw buyers, often the lowest rungs on a ladder in a criminal enterprise, to provide the information needed for investigators and prosecutors to go after those directing and profiting from such activity. 

Our bill and this amendment would change that.  They will add two new provisions to our Federal criminal code to specifically prohibit serving as a straw purchaser of firearms and trafficking in firearms.  The bill establishes tough penalties for these offenses in an effort to punish and, importantly, deter this conduct.  I was accused at the Committee markup on this bill of being too tough on these crimes.  I believe we need a meaningful solution to these serious problems. 

Another key provision of our bipartisan bill is that it complements existing law that makes it a crime to smuggle firearms into the United States by specifically prohibiting the smuggling of firearms out of the United States.  In light of what we know is occurring, particularly on our Southwest border, this is an important improvement to current law and another tool that was needed but missing over the last few years.  

The provisions in our legislation are focused, commonsense remedies to the very real problems of firearms trafficking and straw purchasing.  Our bill does not affect lawful purchases from Federal firearms licensees, and in no way alters their rights and responsibilities as sellers of a lawful commodity.  We listened to concerns about family members who give firearms as gifts and other transfers that are not designed to get around the existing background check system.  As a result, the bill contains important exemptions for the innocent transfer of a firearm as a gift, or in relation to a legitimate raffle, auction or contest. 

In an effort to encourage even broader support for our bill, Senator Collins and I have made changes to our bipartisan bill to emphasize that we intend no adverse impact on law-abiding gun owners.  In developing the language now before the Senate, we consulted with a number of different groups, including law enforcement, prosecutors, victims, and the National Rifle Association.  I am pleased that our discussions with all of these groups resulted in legislation that reflects diverse views yet is a focused approach to combat the destructive practices of straw purchasing and firearms trafficking, while protecting the Second Amendment rights of Americans.

Our amendment retains all of the important provisions of the measure that was favorably reported by the Judiciary Committee, including the two new Federal criminal statutes that will help law enforcement go after straw purchasers and firearms traffickers.  That bill was passed by a bipartisan majority of the Committee.  The Committee report that was filed in relation to S.54 made plain our intent and the meaning of the bill.  Our clarifying language likewise ensures that lawful gun purchasers can buy firearms from licensed dealers to give as bona fide gifts, raffle or contest prizes, gratuities, or bonuses.  This amendment should also eliminate any concern about imposing potential liability on the original purchaser of a firearm for the criminal acts of the ultimate recipient of the firearm after it is conveyed by that purchaser and reconveyed a number of times.  The amendment also includes other technical changes to conform the bill to existing law regarding the forfeiture of firearms and ammunition.

Throughout our Committee process and throughout our discussions no one has questioned the constitutionality of these provisions.  In fact, the required nexus to interstate commerce in the bill is identical to that already in existing law.  Our bill does not create a national firearms registry, nor does it place any additional burdens on law-abiding gun owners or purchasers.   

I have worked with Senator Collins, Senator Durbin, Senator Gillibrand, and others to provide a real world, common sense solution to the problem of gun trafficking and straw purchasing.  This is an important law enforcement measure.  There is wide agreement that straw purchasing and illegal gun trafficking must be stopped.  That is why our bill is strongly supported by law enforcement.  In fact, this measure was introduced at the request of law enforcement officials who have said for years that they lack the legal tools necessary to combat illegal straw purchasing and firearms trafficking.  It will provide needed tools to fight against the drug cartels and other criminals who threaten our communities.  Like our original bill, the amendment we now offer has the support of numerous law enforcement organizations, including the National Fraternal Order of Police, the Federal Law Enforcement Officers Association, the International Association of Chiefs of Police, the Major Cities Chiefs Association, the FBI Agents Association, the National District Attorneys Association, and all nine member organizations of the National Law Enforcement Partnership to Prevent Gun Violence. 

In contrast to the broad law enforcement support we have earned for our attempt to combat gun trafficking and straw purchasing, there is suddenly a Republican alternative that would gut the protections and tools that our law enforcement community needs.  That partisan alternative was released late this morning and surprisingly the effort is led by members of the Senate Judiciary Committee.  None of their provisions was considered through regular order or even offered and debated in committee. 

As Chairman of the Senate Judiciary Committee, I took my responsibility seriously when the Committee considered gun violence legislation.  We held three hearings and four lengthy mark ups.  There were many amendments circulated and debated.  We worked to broker bipartisan compromise.  And the result?  The same members who serve on the Senate Judiciary Committee circulated a lengthy substitute just hours before the scheduled vote on their half-baked alternative.  The partisan substitute has not been the subject of a hearing or any committee debate or vote.

The lengthy partisan substitute does several things to make our communities less safe but one of its provisions directly undermines what Senator Collins and I are trying to accomplish.  The trafficking provisions suggested by the Republican alternative essentially give straw purchasers a road map to avoid prosecution.  As long as straw purchasers ask no questions and bury their heads in the sand, they cannot be held accountable.  The Republican substitute requires prosecutors to prove beyond a reasonable doubt that a straw purchaser knew for certain that he was buying for a prohibited person.  A straw purchaser could have every suspicion in the world that the actual buyer is a dangerous criminal, but as long as he deliberately shields himself from getting confirmation of that fact, he is untouchable.  Willful ignorance will be their shield.  

The partisan substitute also gives gun traffickers the same road map.  The bill Senator Collins and I have proposed prohibits an individual from buying a gun and giving it to someone you know will then give it to a criminal.  The Republican proposal inexplicably removes this provision.  So as long as the organizer of a firearms trafficking ring uses a middle-man between the straw purchaser and the ultimate recipient, the Republican proposal makes it easy to avoid prosecution for providing guns to dangerous criminals.

The Republican substitute will also help the Mexican drug cartels by eliminating an existing tool that the Justice Department needs to combat violence on the Southwest border.  The Republican substitute also interferes with state prosecutions of gun crimes.  Under existing law, a person who is traveling through a state with a gun he is not allowed to possess in that state can assert as a defense that he was merely traveling between two states in which his possession would be legal.  This is fair.  But the Republican proposal takes this defense and places the burden on the state prosecutor to disprove the defendant’s claim beyond a reasonable doubt in all cases, even if the defendant has offered no evidence at all to support his claim.  If the state prosecutor fails to meet this high burden, the Republican proposal requires the state to pay the defendant’s attorney’s fees.  This is a clear intrusion on the longstanding police powers of states.

I urge everyone who cares about helping law enforcement and keeping firearms out of the hands of criminals to oppose the Republican substitute, number 725, and to support the bipartisan, Leahy-Collins amendment, number 713.

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