What in the blue blazes is going on with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)? Are we permitted to ask, in all seriousness, if there are any adults in charge there? Ever since the murder of Border Patrol Agent Terry in a December shootout with Mexican smugglers, and the revelation that ATF has been approving questionable arms purchases which U.S. gun dealers had red-flagged as illegal straw-man purchases, the agency has been in full spin/damage-control mode. And now the shit has really hit the fan: ATF has finally admitted that the guns used in Agent Terry’s murder were among the guns that AFTE had been ‘monitoring.’
Against the full might and, ehem, majesty of the ATFE, the press seems to have little influence. Instead of coming clean with the facts, they’ve earned the wrath of Senator Chuck Grassley (R-Iowa) by clamping down on whistleblowers who spoke to the senator’s staffers. The FBI has lent a hand in this skullduggery, declining to honor to FOIA requests from the press and refusing to even release the names of the four Mexican nationals held in connection with the murder.
What we do know is this: Brian Terry, a Border Patrol agent and U.S. Marine veteran, was murdered on American soil by foreign nationals using rifles that were illegally purchased a year ago by straw-man buyers at an Arizona gun store. We also know that ATF has been instructing U.S. dealers to proceed with the sale of guns to illegal straw purchasers, even after the dealers had specifically warned them that they appeared to be illegal. We know that two of these ‘monitored’ guns were recovered at the scene of Agent Terry’s murder.
The ATF has attempted to portray these illegal sales as part of a ‘sting’ operation, but this explanation falls flat on its face. As a criminal defense lawyer, I’ve read God-knows how many police reports of ‘sting’ drug buys, so I can tell you how the cops work a sting operation.
It goes like this: the cops suspect Mr. X of being a drug dealer, so they arrange to buy some drugs from him. An undercover cop (or a snitch with a wire) will go to the meeting with Mr. X. They’ll flash the money, get the drugs, and skedaddle. As soon as they do, the police tactical unit descends on the scene in force and in full entry gear, and nabs Mr. X. The drugs are recovered and put in the evidence locker.
As a variation on this theme, the cops might conduct several ‘buys’ from Mr. X and then either 1) Nail him with multiple felony charges, or 2) Threaten him with multiple felony charges and scare the crap out of him so he’ll ‘flip’ and help bring down his own suppliers, in exchange for leniency. No matter how many ‘buys’ occur, the drugs go in the evidence locker.
There are also ‘reverse stings’ where the suspect gets nabbed not for selling drugs, but for buying them from the undercover agent. (Prostitution busts often work this way as well.) But whether it’s a ‘sting’ or a ‘reverse sting’, the cops never allow any illegal drugs to actually go out on the street. Ever. If they buy drugs from Mr. X, they put them in the evidence locker until trial. If they sell drugs to Mr. X, they bust the scumbag as soon as the deal is complete. Whatever happens, they keep track of the drugs and put them in the evidence locker.
This is what the ATFE failed to do. They put these guns in criminal hands, and then they lost track of them. For a year. In order to illustrate the magnitude of this disaster, let’s pretend this was a drug operation instead of a gunrunning operation.
Imagine what would happen if your local narcotics squad set up a reverse-sting operation to nab Mr. X., the suspected drug dealer, by selling him two or three kilograms of highly refined heroin. Sounds like a good enough idea, right?
Now imagine that the narcotics squad decided not to bust Mr. X right away, but to let him keep the heroin so they could catch him in the act of selling it. It’s starting to sound like a bad idea at this point. And now imagine that they didn’t bother to actually keep track of Mr. X, and that Mr. X then sold the heroin to a teenager. Now it’s a really bad idea. And the teenager died of an overdose. Now it’s a god-damned disaster.
The press will go crazy, City Hall will feel the heat, and heads will roll. Cops will be disciplined, and the police chief will suddenly announce his retirement so he can “spend more time with his family.” Lawsuits will be filed, and the city will cough up several million dollars to the family of the overdosed teenager.
Well, that’s where we’re headed right now. Agent Terry’s loved ones, along with the American people, deserve a full accounting of just how and “why” the ATFE knowingly allowed guns to be illegally sold and delivered to his murderers. The press may not be able to get these answers, yet, but the family can get them by filing a claim under the Federal Tort Claims Act.
Under 28 U.S.C. § 1346(b), the United States is liable for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
I can’t lay claim to any particular knowledge of Arizona tort law, but my gut feeling is that knowingly allowing a gun to be sold to a straw purchaser for Mexican drug gangs should expose you to the same kind of civil liability as knowingly selling another drink to a driver you suspect to be drunk. You may not intend for anyone to get hurt, but you just can’t go around doing these kinds of things when it’s your statutory duty to enforce our gun laws and not violate them.
If the family files a tort claim, the ATF would have six months to respond to it, either by offering a settlement or by denying liability. After the ATFE’s response, the family would have another six months to file their lawsuit.
I think it would be in the ATFE’s interests to pay off the family quickly and quietly, since an angry family would have the full arsenal of federal civil discovery rules at their disposal if the case headed to trial. Subpoenas and depositions of ATF personnel, and far-reaching demands for ATF documents could reveal secrets that might spell ruin for the agency.
Here’s hoping, anyway.