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National Rifle Association CEO Wayne LaPierre testifies on Capitol Hill in Washington, Wednesday, Jan. 30, 2013, before the Senate Judiciary Committee, as supporters and opponents of stricter gun control measures faced off on what lawmakers should do to curb gun violence. (J. Scott Applewhite/AP)

In his testimony before the Senate Judiciary Committee on Jan. 30, National Rifle Association executive vice president Wayne LaPierre trotted out a hoary chestnut of NRA mythology: Prosecutors don’t go after gun criminals.

“That means violent felons, gang members and the mentally ill who possess firearms are not being prosecuted. And that’s unacceptable,” LaPierre said.

It’s also untrue.

LaPierre offered no statistics to back up his oft-repeated charge, save for a mention of federal gun crime prosecutions falling by 35 percent in 2011 compared to 2010 — a claim discredited by the fact that violent crimes decreased nationwide during that span. LaPierre left unsaid that about 75 percent of federal gun crimes are originated by the Bureau of Alcohol, Tobacco, Firearms and Explosives, an agency the NRA has gone to extraordinary lengths to weaken.

You don’t have to dig too deep to find cold water for the NRA’s hot allegations.

LaPierre also didn’t mention that the vast majority of gun crimes in America are handled by state, not federal, prosecutors. Gun murders, gang shootings, firearm assaults and armed robberies are rarely pulled up to federal court, for the simple reason that these crimes violate existing state laws and state prosecutors possess the investigative resources to pursue the cases. This is where the NRA’s statistical claims become even more assailable.

Typically in a criminal case involving a firearm the most serious charge is the offense committed with the gun, not the possession of the gun itself. For instance, a gun murder case will typically consist of a first- or second-degree murder charge, and a separate illegal possession of a firearm charge, assuming the gun wasn’t properly licensed to the individual charged. If the defendant is convicted, the judge typically sentences on the lead charge — murder — and might order the sentence on the gun charge to be served concurrently with the murder charge. The criminal has been convicted and is serving time, but because the gun conviction is not being served as a consecutive, or add-on, sentence, the NRA counts it as an unenforced — which is voiced in the organization’s parlance as an un-prosecuted — offense.

Another example might include a serious offense involving a gun for which the defendant is convicted, but the gun charge is “filed,” which is a somewhat vague judicial exercise resulting in the sentence being imposed on the case’s most serious charge, be it intent to murder, armed robbery, rape. Again, the criminal is convicted and imprisoned, but the NRA isolates the filed gun charge for inclusion in its unenforced column.

With a reckless mix of umbrage and rhetorical license, NRA spokesmen take cases like these and declare that new laws aren’t necessary — all prosecutors need do is enforce laws already on the books. This argument rarely gets challenged. Indeed, LaPierre didn’t face a single question during the Jan. 30 Senate hearing specific to his statement alleging a general lack of enforcement.

It defies logic that prosecutors wouldn’t be serious about pursuing gun cases. That’s like saying fish aren’t serious about swimming. It’s what they do.

Lawmakers don’t have to dig too deep to find cold water for the NRA’s hot allegations. For instance, according to the Suffolk County District Attorney’s office, in Boston there were 366 criminal cases involving guns in 2011, with 168 of them serious enough to be indicted to superior court. The remaining 198 cases were handled in a special gun session attached to Boston Municipal Court. It defies logic that prosecutors in other cities wouldn’t be as serious about pursuing gun cases. That’s like saying fish aren’t serious about swimming. It’s what they do.

It’s somewhat artful that the NRA consistently talks about lack of prosecution, not lack of arrests. This might be attributable to the organization equating prosecutors, more than police, with government overreach, a great source of NRA paranoia (it’s interesting how the NRA’s strong-government phobia co-exists with its howls for expanded prosecutions). Or perhaps they wish not to offend their own board members, many of whom are current or former law enforcement officers (none are prosecutors).

Either way, their argument that gun cases aren’t prosecuted is a dud.

Related:

Editor’s note: Jim Borghesani was director of communications at the Suffolk DA’s office from 1995 to 2001.

Tags: Guns, Law, Newtown, Security

The views and opinions expressed in this piece are solely those of the writer and do not in any way reflect the views of WBUR management or its employees.

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  • Thinkfreeer

    If you had actually watched the Congressional hearing, you would have seen that later questioning by senators clarified or refuted LaPierre’s claim. Since the hearing was about proposed Federal legislation on gun control, discussing Federal prosecutions was proper, and figures about state and local prosecutions are immaterial to the discussion. You totally missed the point of LaPierre’s, and NRA’s, approach on this. The point is, why are you proposing more regulations when you do not enforce the existing ones? A good question. It cannot be answered by saying, “But we are enforcing them.”

    • Mark Lai

      “Since the hearing was about proposed Federal legislation on gun control, discussing federal prosecutions was proper” — no, it wasn’t.

      The proposed Federal legislation on gun control tries to reduce the number of guns sold to people who shouldn’t have them. Prosecutions of gun crimes, which the NRA says are committed mostly by people who shouldn’t have guns to begin with, are done mostly by states, not by the feds. The NRA is simply trying to change the subject to something irrelevant.

      • Thinkfreeer

        You’re wrong, but so what.

      • Thinkfreeer

        No, what wasn’t what? Your first paragraph is meaningless.

        My point was that discussion of state and local gun law prosecutions is immaterial to a hearing on Federal law. State and local officials do not enforce Federal law.

        Senator Leahy chaired the hearing. In Senator Leahy’s statement, he said. “I have introduced a measure to provide law enforcement agencies with stronger tools against illegal gun trafficking. Others have proposed restrictions on military style weapons and the size of ammunition clips [sic]. Others have proposed modifications to the background check systems to keep guns out of the wrong hands, while not unnecessarily burdening law-abiding citizens.” The only bill actually on the docket and printed by the GPO at this time is S-150, which is Senator Feinstein’s Assault Weapon Ban bill. This is the only bill which we can read and know what is in there. And I don’t believe that changes to the check system will “not unnecessarily burden law-abiding citizens.” But I’m willing to look at the proposals and then decide.

        So, there have been some proposed modifications to the Federal background check system, but we don’t know exactly what. They are not bills yet. Thus the hearing. The NRA is not trying to change the subject. One of the subjects is background checks. It is a valid question to ask, why are you discussing more laws regarding background checks when you do not enforce the current laws? Why would we care? Because we already willingly comply with the background check system now, and volunteer our time to fill out the paperwork or computer screens, and state, under penalty of law, yet again, that we are not felons, not under arrest for a crime, not drug users, not under a domestic abuse restraining order, etc, etc, even though the background check will check many of these things. Some people lie and are not prosecuted, they just are denied the sale. It seems to me this is good enough for you. The NRA is saying it is not good enough.

  • http://www.facebook.com/futo.buddy Futo Buddy

    we have 20,000+ gun laws if they were all being enforced (or enforcable) then we should not have any more problems with guns right? Will there be a story about the oft repeated claim that the current background checks prevented 1.5 million people from buying guns when all it did was prevent them from buying guns legally at stores and we have no idea how many of those people went ahead and bought guns on the black market?

    • massappeal

      Your concluding question seems like a good argument in favor of something the vast majority of Americans—and NRA members—tell pollsters they support: universal background checks for all gun sales in the USA.

      • http://www.facebook.com/futo.buddy Futo Buddy

        well I think we all know polls can easily be manipulated. I don’t believe any of the 1.5 million were prevented from getting guns, just from getting guns from reputable stores. Unless there is some evidence otherwise its just a feel good statistic that really means nothing and not a reason to expand a program that we have no evidence if it actually works.

        • massappeal

          Thanks for the response. True, polls can easily be manipulated. A problem for the NRA right now is that there are multiple polls, by competing pollsters, who have nothing to gain (and much to lose) by manipulating their polling on this issue.

          Opinions obviously differ, but for many Americans the fact that the current background check law prevented 1.5 million sales to individuals who couldn’t pass the background check would fall in the category of “evidence that this law works and should be expanded/improved upon”.

          • http://www.facebook.com/futo.buddy Futo Buddy

            yup i agree that number makes most people feel good but all it means is that many insane or criminal people attempted to get guns at stores. presumably an additional number of insane and felons knew they would not pass a background check and went directly to the black market. did getting denied for a background check ((which generate many false positives and holds by the way) stop them on their quest for a firearm or send them to the black market or to break into their neighbors house? there is no way to know. i dont actually have a problem with the background checks here in mass but i dont think expanding it to private sales, unless its voluntary, will do anything but add expense to firearms(which i know elitiests love) while not preventing bad people from selling them to other bad people. straw buyers wont head on down to the gun store to pay $40 for their background checks before they do the deal. We already have to fill out a form for a private sale but i bet some would take the option of an instant background check if they were selling to a stranger from the internet or whatever. More would doit if it was free. In mass we have checks already at gunshows by the way so the “gun show loophole” is a myth.

  • maraith

    Rather than having gun violations served concurrently with a “more serious” offense, they should be added on. THAT would make the point that a crime committed using a gun is treated seriously.

  • LeftShooter

    Mr. Borghesani,

    I appreciate your making me aware of the Boston Gun Court and the link to its report.

    I must criticize you, however, for exhibiting the same kind of shallow analysis and presentation of which you accuse the NRA. For example, above you say: “LaPierre offered no statistics to back up his oft-repeated charge, save for a mention of federal gun crime prosecutions falling by 35 percent in 2011 compared to 2010 — a claim discredited by the fact that violent crimes decreased nationwide during that span.” If one follows the provided link to the FBI press release, it says that violent crime declined by 4%–a happy circumstance but not enough to “discredit” a 35% prosecution decline, in my view.

    Moreover, your discussion of 2011 gun-related criminal cases in your penultimate paragraph cannot be validated by your use of a link to a report which only contains data from 2006-2009.

    Do my examples suggest a “rush to publish?” If so, then please slow down and do it right, since so much emotion, rather than reason, already pervades this nation’s “discussion” of gun violence and possible solutions.

  • Thinkfreeer

    “It’s somewhat artful that the NRA consistently talks about lack of prosecution, not lack of arrests. This might be attributable to the organization equating prosecutors, more than police, with government overreach, a great source of NRA paranoia (it’s interesting how the NRA’s strong-government phobia co-exists with its howls for expanded prosecutions).”

    Your journalistic diatribe does not make it so. Somehow you managed to hold down more than one job as a journalist. Now, at least you admit that your job is strategic media, not real journalism.

    Reckless. Umbrage. Rhetorical license. Hoary chestnut. Mythology. Artful. Government overreach. Paranoia. Phobia. Howls. These terms are accusatory, demonizing, and offensive.

    I am a life member of NRA. And I take exception to your statements. There is no record of the NRA consistently talking about lack of prosecutions or arrests. I have seen no statement from the NRA equating prosecutors with “government overreach.” The NRA has no paranoia or phobia. These are individual traits, not group traits. As individuals, we are not suspicious or afraid of the government, we are organizing to exercise our First Amendment rights (which protect speech and permit redress of grievances) to defend our Second Amendment rights.

    • massappeal

      Thanks for your comments. I won’t get into the debate whether paranoia can be an organizational characteristic as well as an individual one. I will just note that all recent public opinion surveys of which I’m aware show that the vast majority of NRA members support universal background checks for gun sales (as do the vast majority of all Americans). Given that this was the stated position of the NRA as recently as a decade or so ago, I can understand why observers like Mr. Borghesani view Mr. LaPierre’s comments as they do.

  • Thinkfreeer

    Now that the testimony and statements are posted for public viewing (find it yourself), what LaPierre actually provided in print (including the statistical references, which are never read in testimony, but only entered into the record) was, “In addition, we need to enforce the thousands of gun laws that are currently on the books. Prosecuting criminals who misuse firearms works. Unfortunately, we’ve seen a dramatic collapse in federal gun prosecutions in recent years. Overall in 2011, federal weapons prosecutions per capita were down 35 percent from their peak in the previous administration (Calculated from U.S. Department of Justice data available through Transactional Records Access Clearinghouse, http://tracfed.syr.edu.)

    That means violent felons, gang members and the mentally ill who possess firearms are not being prosecuted. And that’s unacceptable.

    And out of more than 76,000 firearms purchases denied by the federal instant check system, only 62 were referred for prosecution and only 44 were actually prosecuted (Ronald J. Frandsen, Enforcement of the Brady Act, 2010: Federal and State Investigations and Prosecutions of Firearm Applicants Denied by a NICS Check in 2010 , available at https://www.ncjrs.gov/pdffiles1/bjs/grants/239272.pdf.)

    Proposing more gun control laws – while failing to enforce the thousands we already have – is not a serious solution to reducing crime.”

    So, he did offer statistics. He just didn’t recite them.

    • jcm52

      So now the NRA is arguing that it’s unacceptable that the background check does not result in prosecutions for violations? This would be the same background check that the NRA fought tooth and nail and called a violation of our rights when it originally came into force?

    • http://twitter.com/ADRIANMONK101 7HEAVENS

      The NRA once had a section in their magazines which contained stories of criminals who had murdered with a gun – and always they had been let go from illegal gun possession before one or many times. Many would not have been free to the commit the crimes they did because they would have been imprisoned. This article shows quite clearly that the authors do not have a clue as to what they are talking about – which does not stop them from talking about it with a pompous air of haughtiness they have no reason to display.

      • http://www.facebook.com/futo.buddy Futo Buddy

        i like their stories they have with the people who defend themselves using their firearms. these stories seldom make the news so otherwise you would never here them

  • PaulD

    How about looking at MA as a microcosm? In MA, we have a system that records all gun purchases, private sales (of which only 4 are allowed per year) by licensed individuals, losses and thefts. This is done via form FA10. How often has the state used that system to track down a gun used in a crime? Of those, how often was it found that a properly licensed MA resident committed the crime? Yes, our state politicians are, right now, trying to add on a whole raft of very onerous gun laws onto the onerous lot we already have.

    Also, the NRA is national yet you cite one little area and provide no real statistics to back your statements up. One big part of what LaPierre was referring to was form 4473 violations. This is the federal background check (for MA residents this is a 2nd background check on top of what the state does). It is a crime to lie on the 4473 form and it’s a crime to even try to buy a gun if you’ve stated on the form that you’re excluded from purchase. In fact it’s a crime to try buying a gun if you’re denied on the background check. This is federal so how many times has the ATF prosecuted someone who has been denied?

    The definition of “cognescenti’” is someone in the know. It’s disappointing that the person writing this article really isn’t.

  • PaulD

    I should also add, since most of the gun control discussion is about banning assault weapons (a disingenuous term invented by a political hack trying to write gun control legislation) , that the real data is in the FBI uniform crime reports. If you look in there, you’ll find that the number of rifles (a superset of of assault weapons) used in murders is exceedingly small. In MA in the last 3 years, no rifles were used in murders. In previous years, the numbers are in the single digits. In all those years, knives, other sharp instruments, blunt objects and fists are all much higher in terms of numbers.

  • David F

    You want facts and figures, here’s one.

    M.G.L. ch.269 §10 basically states that if you are knowingly in possession of a firearm illegally in MA you are guaranteed 18 months (and possibly up to 5 years) of free room and board provided courtesy of the state.

    The sentence may not be reduced to less than 18 months, nor suspended. You’re not eligible for probation, parole, work release, or furlough or any deduction from the sentence for good conduct until you have served 18 months of your sentence.

    Seems cut and dry doesn’t it? Be found in illegal possession of a firearm and go to jail for at least 18 months.

    However Congressman Tierney hosted the panel “An Important Discussion on How to Prevent Gun Violence in Our Communities” in Lynn this past March. Essex County District Attorney Jonathan Blodgett was asked directly, how many people found to be in possession of a firearm illegally are actually prosecuted. He hemmed and hawed a bit saying he didn’t have exact figures available to him right then. When pressed though he admitted that less than 20% of those found in illegal possession of a firearm are actually prosecuted.

    We do not need any new anti-gun laws. We need to start applying the laws we already have.

    M.G.L. ch.269 §10
    http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter269/Section10

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