Walking firearms to gunrunners: ATF's flawed operation in a flawed system.

• Author: Krantz, Michael
• Position: Firearms and explosives

On December 14, 2010, Customs and Border Patrol Agent Brian Terry was shot and killed in a gun battle near the United States-Mexico border. (1) Near the scene, investigators found two AK-47 assault rifles, (2) regular tools of the trade for Mexican drug-trafficking organizations (DTOs). Over time, Congress discovered that these weapons were part of the elaborate Operation Fast and Furious, conducted by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). (3)

It is standard procedure for ATF agents to track high-powered firearms, which are sometimes illegally purchased by straw purchasers, (4) to determine the flow of illegal weapons. Procedure also dictates that agents interdict these weapons when possible to prevent them from ending up on the black market. (5) According to documents and testimony before Congress, however, the Fast and Furious agents allowed the weapons to "walk" into the hands of drug cartel members certain to use the weapons for harming others. (6) Agents hoped that they could ultimately follow the weapons to leadership in the Mexican drug cartels, thus connecting illicit U.S. weapons purchases to the cartels. (7) The agents could then build cases against specific cartel leaders. (8) Contrary to the plan, ATF lost track of the weapons, and Mexican law enforcement subsequently found some at crime scenes of gruesome violence in Mexico. Once called to their attention, U.S. lawmakers immediately questioned the extremely risky operation that allowed weapons to be transported to dangerous Mexican cartels, putting both Mexican and American lives at risk. (9) Most recently the Office of the Inspector General in the U.S. Department of Justice issued a report determining that the Department of Justice did not carefully oversee the operations conducted by the ATF and failed to provide completely accurate information during the scandal's aftermath. (10)

Every day United States law enforcement faces an uphill battle in its efforts to control the trafficking of weapons throughout the United States and across the southern border into Mexico. (11) In 2006, Mexican President Felipe Calderon launched a war against the Mexican drug cartels, deploying military regiments to crime-ridden areas, increasing arrests and prosecutions of traffickers, and extraditing more traffickers to face charges in the United States. (12) The Mexican cartels responded to the declaration of war by ramping up violence across Mexico. (13) The violence in Mexico has been largely indiscriminate, with cartels targeting Mexican law enforcement, rival cartels, and innocent civilians, all in an effort to control the drug routes into the United States and to intimidate opponents into submission. (14)

Mexican weapons laws are far more stringent than those in the United States. The Mexican Constitution contains a provision similar to the Second Amendment to the United States Constitution espousing a right to bear arms, (15) but the Mexican Constitution also restricts possession of many high-powered weapons for citizens who are not members of the military or law enforcement. (16) Article Ten of the Constitution of the United Mexican

States declares:

The people of the United Mexican States have the right to possess weapons in their homes, for their security and legitimate defense, with the exception of those prohibited by federal law and those reserved for the exclusive use of the Army, Navy, Air Force, and National Guard. Federal law will determine the cases, conditions, requirements and places in which the carrying of firearms shall be authorized. (17) Mexico's Federal Law of Firearms and Explosives determines which high-powered weapons individual citizens may not possess. (18) As a result, most of the high-powered weapons employed by the Mexican cartels, such as AK-47 assault rifles and Barrett .50-caliber sniper rifles, are not manufactured or legally sold in Mexico and must instead come from outside of Mexico via illicit trafficking. The weapons usually come from the United States.

Cartels use an elaborate and diffuse web of straw purchasers and transactions in order to avoid detection as they smuggle firearms south into Mexico. (19) Cartels hire buyers to purchase a few weapons at a time and those weapons may then pass through four or five additional middlemen to throw U.S. authorities off track. (20) This process of passing firearms from a legal primary market into an illegal secondary market is known as weapons trafficking. (21) Once a weapon is swallowed into the secondary market, it is easy to smuggle across the U.S. border with Mexico.

A 2009 report by the U.S. Government Accountability Office estimated that 90% of traceable weapons recovered in Mexico between 2006 and 2008 came from the United States. (22) This number could be taken out of context because 90% of total traceable weapons is a significantly smaller number than the total number of weapons actually recovered. (23) When viewed as a fraction of the total number of weapons recovered, the percentage affirmatively traced to the United States is thus much lower. This quantity, however, is also underinclusive since it does not include weapons manufactured abroad and then smuggled into Mexico through the United States. (24) The numbers unequivocally show, however, that the flow of weapons from the United States plays a large role in the weaponry amassed by Mexican drug cartels. (25) Preventing weapons trafficking along the border would undoubtedly alleviate some of the violence in the area. Recent budget cuts have left ATF understaffed along the border and unable to grapple adequately with the enormous problem of weapons trafficking. (26) Moreover, ATF has difficulty recruiting personnel for dangerous operations in Mexico and in southwestern border states. (27) Although the number of special agents working gtmrunning cases along the border has significantly increased from just eighty-four agents in 2006 to 224 in 2010, the number remains insufficient to combat the problem without dismantling the top cartel leadership. (28) Additionally, due to stringent opposition from the National Rifle Association (NRA), the lobbying organization that most ardently stands up for unqualified gun rights for individuals, the ATF has not had a Senate-confirmed director since 2006. (29) The resulting ATF manpower is not sufficient to carry out the stated goal of stemming the tide of weapons smuggled daily into Mexico. One way to make up for insufficient resources is to ensure that the criminal laws afford law enforcement the necessary means to dismantle the organizations that threaten public safety. But law enforcement presently does not have the necessary legal tools to combat gun trafficking from the United States into Mexico. The current statutory regime, which consists of the federal criminal code and sentencing guidelines that criminalize and punish weapons offenses, is insufficient to dismantle gun-smuggling organizations operating with near impunity along the U.S.-Mexico border. The level of knowledge required to prove weapons offenses and the inflexibility of the criminal elements make even clear-cut cases difficult to prove. As a result, insufficient and inconsistent penalties ensure that the punishment does not fit the crime and that the crimes are not taken seriously enough.

In response to the Fast and Furious scandal, the House of Representatives has proposed H.R. 2554, a statute that would for the first time criminalize weapons trafficking in the United States and punish offenders more severely than the federal code currently punishes violators of weapons offenses. (30) Although it solves many of the current problems, a trafficking statute alone, in the absence of more comprehensive measures, will not do enough to stem the flow of weapons into Mexico.

This Comment will explain the deficiencies in the current regime and describe how H.R. 2554 fails to solve the entire problem. Part I explains the current tools in the law enforcement arsenal by examining what conduct the penal code criminalizes and what penalties exist for buyers and sellers of weapons. Part II examines why high knowledge requirements and low, ungraduated penalties are insufficient to combat weapons trafficking on the border. Part III illustrates the consequences of the current regime in three ways: (1) by contrasting an atypical weapons prosecution, where the sentencing judge departed upward from the federal sentencing guidelines, with an example of how the current statutes lead to prosecutors bringing extremely odd charges; (2) by describing the ultimate breakdown in enforcement of the weapons statutes--Operation Fast and Furious--which has contributed to countless deaths in Mexico and the death of Agent Terry; and (3) by examining international implications for maintaining the current statutory regime. Part IV analyzes the proposed legislation in the wake of the Fast and Furious scandal and speculates whether the statute could ultimately become law. Part IV also proposes additional statutory measures that comprehensively focus on international trafficking in an effort to curb abuses along the border. Part V concludes by calling upon Congress to debate openly how to balance the Second Amendment right to bear arms with a need to keep Americans, and our international neighbors, safe from violence perpetrated by drug traffickers along the United States-Mexico border.

1. CURRENT TOOLS IN THE LAW ENFORCEMENT ARSENAL

   United States law enforcement is vastly underequipped to battle international weapons trafficking. The archetypal trafficking situation involves the following two transactions, each with its own problems for law enforcement. First, a straw purchaser buys weapons either from a federally licensed weapons dealer (a federal firearm licensee, or FFL) or from an unlicensed dealer legally selling his personal collection, possibly at an unregulated gun show. (31) Second, the straw purchaser...