by Dave Kopel
America's 1st Freedom, March 2014
A popular bumper sticker quips: "Alcohol, Tobacco and Firearms ought to be a convenience store, not a government agency."
Apparently taking that slogan to heart, the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) has been running phony storefronts all over the country--out of control operations that have often featured reprehensible tactics, in several cases including the targeting of mentally disabled persons.
Through a scheme called "Operation Fearless Distributing," the batfe in Milwaukee set up and operated a storefront--also known as Fearless Distributing--that sold clothing, auto parts and drug paraphernalia. And the bureau enticed a brain-damaged man to advertise its new venture. Chauncey Wright's iq of 54 puts him well within the bottom 1 percent of the population in regard to mental capacity. From February to September 2012, the BATFE paid Wright to bicycle around the city handing out flyers for the store. At BATFE's request, Wright also brought firearms and drugs to the store, which BATFE purchased from him at sky-high prices.
Then, BATFE had Wright arrested, and the U.S. Attorney's office charged him with felonies.
Wright's mental disability is readily apparent: During conversations, he sometimes loses attention and begins talking to an invisible person. (His brain damage stems from an incident when he was a baby and nearly drowned in a bathtub, deprived of oxygen for several minutes.) As experts have pointed out, individuals with traumatic brain injuries are easily manipulated because they are so eager to be accepted by a group.
Leigh Ann David, a program manager for the disability rights group, The Arc, said that mentally disabled people "are easy prey ... They can't make good judgment calls. That's a serious issue if a [BATFE] agent comes up and wants to be your friend."
"I never heard of anything so ludicrous in my life," said a 30-year veteran of the Milwaukee Police Department with extensive experience running gun stings. A spokesperson for Disability Rights Wisconsin called BATFE's actions "real exploitation" and "morally outrageous."
The modus operandi of Fearless Distributing was to get as many people as possible to commit gun crimes. So the BATFE store offered prices double the retail price of guns. Thus, people who could legally purchase firearms would buy guns from legitimate gun stores and then immediately bring the gun to Fearless Distributing to sell for a 100 percent profit.
Obviously, this is not an operation designed to "get crime guns off the street," although it probably emptied gun racks at a few nearby stores. But it did put guns on the street. Some guns were even resold to convicted felons, who exited the store with their guns--cash and carry.
Federal Bureau of Investigation agents had initially agreed to participate in the Fearless Distributing sting, but quickly dropped out after seeing the operation's multiple flaws.
On Sept. 13, 2013, three BATFE guns, including an automatic Colt M4 rifle, were stolen from an agent's vehicle. B.J. Zapor, the BATFE field division director in St. Paul, Minn., responsible for Wisconsin and three other states, ordered Fearless Distributing shut down. The local agents, however, claimed they thought the order meant the store should shut down for a single day, and Zapor did not follow up to ensure that his order had been carried out.
Then on Sept. 24, the U.S. attorney ordered the store be closed for good, which it finally was on Oct. 3. When BATFE agents left, the store's burglar alarm was turned on, but it was not functioning. The burglar alarm operated via a phone line, and the phone line had been removed eight months prior, as approved by BATFE agents at the store. There was no deadbolt on the door.
On Oct. 7, someone broke the store's electric meter, thus disabling the security cameras, and over the next two days, burglars loaded Fearless Distributing's $40,000 worth of inventory into a U-Haul truck and drove away.
"Operation Fearless Distributing" lasted 10 months, and ended with charges brought against 30 people, three of whom were wrongly charged. One of the men wrongly charged was in federal prison at the time he supposedly committed the crime. The vast majority of the charges were for low-level offenses, and few of the defendants had violent histories.
Interestingly, the abuses of "Operation Fearless Distributing" came to light only because of the same bungling and arrogance that had facilitated the burglary of the store. Once BATFE finally vacated the premises, the landlord found that the building had been badly damaged--and that the agents had left behind secret documents about undercover investigations.
According to the landlord, BATFE inflicted $15,000 in damages to the property, yet when the landlord complained, he claimed a BATFE attorney warned him to stop or he could be charged with threatening a federal agent. So the landlord complained to the local newspaper.
The scandal was initially reported in February 2013 by the Milwaukee Journal-Sentinel. BATFE promised an investigation, and the Milwaukee operation was said to be "isolated." So far, BATFE has not announced any results, or reforms as the result of, its internal investigation. An inspector general at Eric Holder's Department of Justice has also commenced an investigation, but no results have been released as this article goes to press.
Meanwhile, the Journal-Sentinel kept up its own investigation throughout the year, with a blockbuster report published on Dec. 7. The newspaper found that targeting of the mentally disabled in storefront stings was not confined to Milwaukee.
Here are findings about other BATFE "stores" discovered by the Journal-Sentinel:
Portland, Ore. Squid's Smoke Shop persuaded (and paid for) teenagers--one of them mentally disabled--to be tattooed on their necks and shoulders with the store's logo: A squid smoking a marijuana cigarette.
Squid's Smoke Shop was located right across the street from H.B. Lee Middle School. Crimes in school zones carry extra-long sentences, but deliberately locating an operation designed to attract criminals near a school obviously conflicts with the whole premise and purpose of those laws. On top of that, Squid's Smoke Shop provided a handy location for seventh graders to purchase drug paraphernalia.
BATFE described the location of Squid's Smoke Shop as an accident, and said it was the only commercial location where the agency could get a month-to-month lease. But in fact, BATFE signed a one-year lease for the premises.
At least six BATFE "stores" have been located within 1,000 feet of a school. BATFE lured juveniles into Squid's by providing a free Xbox video game system for them to play in the store.
One of BATFE's chumps with a Squid's tattoo bartered an ounce of marijuana for some clothing from Squid's. He was later charged with selling marijuana in a school zone, a serious federal felony.
The other guy with the tattoo, who is mentally disabled, was sentenced to 18 months for selling a sawed-off shotgun and procuring prostitutes to attend a Squid's party. A federal judge did, at least, order BATFE to pay for the removal of the tattoos.
Before vacating the leased space in Portland, BATFE agents also trashed the place, cut holes in the walls, and ripped out a ceiling spotlight so ineptly that they punctured a hole in the building's brand-new roof. According to the property's owner, BATFE has not paid for any of the damage its agents caused.
Wichita, Kan. The BATFE store Bandit Trading specialized in hip-hop clothing. They found a local man with an IQ in the mid-50s, whom they described as "slow-headed." The man had a prior conviction for burglary, and told the "store" managers that he was trying to stay out of trouble.
The agents befriended him by hiring him for odd jobs in exchange for cigarettes, clothing and cash, and they sometimes took him to McDonald's for meals. At their request, he brought them more than a hundred guns. He was then prosecuted for more than a hundred counts of being a felon in possession of a weapon. Federal sentencing guidelines indicate a sentence of 10 to 12 years, but the judge gave him a break, sentencing him to three years.
BATFE also asked a man who was selling a shotgun to the store to use a saw to shorten the barrel, and even told him what kind of saw to use. After doing so, the man was charged with the serious federal felony of selling a sawed-off shotgun.
Albuquerque, N.M. Guillermo Medel was brain-damaged from having been hit by a drunk driver when he was seven years old. Medel was also a drug addict with felony convictions for drug possession and aggravated assault. He had never trafficked in guns until BATFE persuaded him to do so.
Aiming to get Medel to commit an especially serious crime, agents asked him
to bring them a machine gun. He had no idea what a machine gun was, so he was
given a "tutorial" by BATFE agents of the Jokerz Traderz pawnshop. He found a
machine gun, and brought it to them. He was later sentenced to eight years in
prison. A federal judge dismissed charges against another victim of Jokerz
Traderz, who had "an extensive psychiatric history."
Pensacola, Fla. The BATFE pawnshop Anything for a Buck was run by a convicted felon. (He had agreed to do so in exchange for not being prosecuted for having been found with an illegal gun.) A man named Jeremy Norris had put a classified ad in the newspaper to sell his guns. BATFE called Norris, who has an IQ of 76 (borderline mentally disabled) and no criminal convictions. BATFE spurred him to sell his guns at steep prices to Anything for a Buck. The agents joked among themselves that Norris was "half-retarded." He was also a drug addict, and desperate to get money to feed his habit. Norris knew that the pawnshop buyer was a convicted felon, so Norris's sale of guns to him were federal felonies.
Norris ended up being sentenced to probation, in light of his low IQ. Anything for a Buck had also ensnared several other mentally disabled persons but the federal prosecutors in Pensacola made the decision to refuse to bring charges against these defendants, which BATFE had handed to them on a silver platter.
However, the felon who ran Anything for a Buck for BATFE fared well as he was allowed to buy and sell goods for his own account at the pawnshop, and was invited to BATFE office parties. After he pulled a gun on someone outside a bar, he could have been sentenced to seven years but instead received six months in jail, plus a year in a residential release center.
He flunked out of the residential center in two months and could have been sent to prison, but instead was sentenced to house arrest with no ankle bracelet, just random check-in phone calls. The leniency was justified by his "physical and mental health conditions."
Anything for a Buck also functioned as a high-priced buyer for stolen goods. Since legitimate pawnshops try to make sure that they are not buying stolen goods, the existence of a pawnshop paying extravagant prices for goods that were known to be stolen likely stimulated additional burglaries and robberies in the area. Few of the stolen goods were ever returned to their owners.
Atlanta, Ga. The BATFE's phony pawnshop and smoke shop ATL Blaze also knowingly bought stolen property including guns that had just been stolen from law enforcement vehicles. The local sheriff's office and police departments wasted many hours trying to solve the thefts and recover the stolen guns, since BATFE never reported to anyone that the guns had been purchased by ATL Blaze within hours of the thefts.
In Milwaukee and elsewhere, known felons were even repeatedly allowed to leave the stores carrying guns--including one instance in which the felon said he was planning to shoot a personal enemy with the gun.
Contradicting BATFE's assertion that Milwaukee was a rogue operation, the similar operations in other cities have been praised by BATFE headquarters. Upper-level BATFE personnel blamed "Fearless Distributing" on an isolated problem with poor supervision. But in fact, "Fearless Distributing" received high-level authorization from BATFE headquarters in January 2012.
"Fearless Distributing" was even put into the agency's Monitored Case Program--a program implemented as a reform after "Operation Fast and Furious" to provide headquarters oversight of potentially problematic operations. But the Monitored Case personnel apparently never saw anything wrong with "Fearless Distributing."
For years, BATFE has been running tattoo parlors, pawnshops, recording studios, thrift shops and other businesses. There were no guidelines about how to do so until 2013, when guidelines were created after the Milwaukee scandal was made public.
One BATFE agent, speaking anonymously, attributed the problem to a desire to report large numbers of arrests to Congress in order to win more funding. As a result, a large volume of low-quality arrests might sound much better than a few arrests of genuinely dangerous violent criminals.
You might wonder if the activities reported here constitute "entrapment." In a practical sense, some would certainly seem to qualify. But the Supreme Court and lower federal courts have defined "entrapment" so narrowly that it is almost never a viable defense to criminal charges. To assert entrapment, the defendant must show that he was not "predisposed" to commit the crime. Often, the simple fact that a defendant agreed to commit the crime is taken as proof that he was predisposed to do so.
One BATFE agent, speaking anonymously, said: "Taking advantage of the handicapped is pretty cheap, that's pretty low. ... We take on the worst of the worst, not the mentally disadvantaged kid." The agent's quote is an important reminder that BATFE has plenty of agents who, like most law enforcement officers in the United States, want to serve and protect, not to oppress and abuse.
Of course, any large organization is going to have a small percentage of bad apples and knuckleheads, and we don't mean to suggest that batfe is unique in this regard. What makes batfe so dysfunctional is that management rewards the abusers, rather than disciplining or firing them.
University of Pittsburgh law professor David Harris, who studies law enforcement tactics, said, "If your agency is in good shape with policy, training, supervision and accountability, the bad apples will not be able to take things to this level."
One of the favorite talking points of the gun-ban lobby is that anything the BATFE does wrong is the NRA's fault. Because of the NRA, these groups claim, the BATFE budget is too small.
Actually, that budget has grown from $771 million in 2001 to $1.15 billion in 2012, which apparently leaves plenty of money to run stores whose business model is to sell products for less than they cost, and to buy products for double their ordinary price.
NRA is also said to be responsible for poor leadership at BATFE, since the Association has fought against the Senate confirmation of BATFE director nominees who have established anti-gun records.
Yet, the fact is that President Barack Obama appointed B. Todd Jones as acting director of BATFE in the summer of 2011. Jones was confirmed as director by the Senate in July 2013. "Operation Fearless Distributing" transpired while Jones was running the agency.
Which begs the question: What has Director Jones done with the people who were responsible for the "Fearless Distributing" fiasco?
Bernard "B.J." Zapor was head of the St. Paul Field Division, which was in charge of Wisconsin and three other states. Shortly after Fearless Distributing was shut down, Zapor was promoted to headquarters in D.C., in charge of eight field divisions. Then in June 2013, Zapor was put in charge of the Phoenix BATFE office--the office that ran "Operation Fast and Furious."
The man in charge of the Milwaukee office during the early stages of "Operation Fearless Distributing" was Fred Milanowski. He, too, now works in Phoenix. Jacqueline Sutton, who directly ran "Operation Fearless Distributing," now works at BATFE headquarters.
These promotions and moves bring up an important question in the minds of thinking people: If you were director of BATFE and wanted to clean up the Phoenix office after the "Fast and Furious" scandal, would you give that responsibility to the people in charge of "Operation Fearless Distributing"?
Time will tell whether these troubling reports about BATFE's tactics will be further substantiated, and if so, whether those responsible will be dealt with accordingly. In the meantime, they lend further credence to the notion that "Fast and Furious" was not merely an "isolated," "rogue," or "botched" operation, but evidence of systemic mismanagement and dysfunction within batfe. They also counsel against giving BATFE even broader enforcement authority in the form of additional gun control laws. Instead, BATFE should focus on getting its own house in order and use existing laws to target, rather than manufacture, serious criminal activity.