Get Ready For RICO

Wednesday, May 23, 2007

RICO. That acronym for the Federal Racketeer Influenced and Corrupt Organizations Act of 1970 represents the single most dangerous threat to gun rights looming on the near political horizon. It is the hidden centerpiece ofU.S. Sen. Chuck Schumer's, D-N.Y., anti-gun-rights legislation--S. 77--and the absolute short-term lobbying target of New York City Mayor Michael Bloomberg's axis of 160 urban mayors throughout the country.

RICO, when it was enacted in 1970, was intended to make prosecutions of organized crime figures easy, and was called the "hydrogen bomb" of federal criminal law.

It lifts all manner of normal due process and lowers the burden of proof needed to convict defendants. And it empowers federal authorities to freeze all assets of RICO defendants upon mere indictment so that they are denied the means to pay for a defense.

One measure of any law--no matter how well meaning the sound of its title--is how it will be administered in the wrong hands. For RICO, the wrong hands could well be the next presidential administration. Or it could be a rogue blue-state mayor or urbanU.S. attorney.

Remarkably, there is nothing in RICO that is not already illegal. Rather, it creates a new layer of criminal acts called "derivative crimes" based on what the law spells out as "predicate" crimes, which include violation of any law or even regulation specifically named as "predicate" under RICO statutes. Two such "predicate" offenses within a 10-year period is the standard for creating a RICO prosecution.

For RICO to kick in, there is no requirement of conviction involving an original "predicate" allegation.

RICO also provides federally assisted avenues for "racketeering" civil actions under which individuals or organizations can sue other individuals or entities and collect triple damages.

Such suits--especially when tied into RICO provisions providing loose allegations concerning "racketeering conspiracies"--would resurrect the big-city agenda to kill outright or extort total control over lawful firearms commerce in America.

Among the bizarre legal theories that drove a series of New York City lawsuits against the firearms industry was the absurd notion that a conspiracy existed among lawful firearms producers and distributors to intentionally "overproduce guns" to ultimately fill a huge illegal gun market run by criminals circumventing federal law. It was, of course, an insane theory, but clearly with RICO as a tool, a future attorney general in, say, a Hillary Clinton administration, could revisit such theories and likely prevail.

In fact, were S. 77 or any similar legislation expanding RICO to become law, RICO provisions could wipe out any protections against new punitive lawsuits that were ostensibly ended by enactment of the Protection of Lawful Commerce in Arms Act of 2005.

But there is an even more evil side to RICO civil action--punitive suits to take down opponents on purely political hit lists.

In fact, were S.77 or any similar legislation expanding RICO to become law, RICO provisions could wipe out any protections against new punitive lawsuits that were ostensibly ended by enactment of the Protection of Lawful Commerce in Arms Act of 2005.

Keep in mind that a series of civil RICO actions was indeed brought by the National Organization for Women against individuals and groups alleged to be involved in peaceful picketing of abortion clinics, claiming "extortion" as the predicate offense. Ultimately, theU.S. Supreme Court threw out those actions, but considerable damage was done to many groups and individuals all the same.

As for the immediate short-term goals of Bloomberg and Schumer, look no further than S. 77. The same RICO civil litigation tools that are ready-made for destruction of the firearm industry could also become the means to vindictively pursue individual gun owners.

One of the best descriptions of the criminal law aspects of RICO can be found in a 2004 monograph by William L. Anderson and Candice E. Jackson, published by the Independent Institute:

"[I]t has been used--with federal judges, members of Congress, and the press acting as cheerleaders--to overturn the protections inherent in due-process guarantees of theU.S. Constitution ... in a RICO case, those charged are treated as guilty until proven innocent."

If applied to federal gun control statutes as prescribed in S. 77, RICO would open the way for unprecedented civil liberties abuses against Americans who practice the Second Amendment.

Remember, to trigger a RICO prosecution, federal authorities only need to claim "a pattern of racketeering activity" based solely on allegations of two or more RICO predicate violations within a 10-year period.

For a federal firearm dealer living under Schumer's S. 77, such a "pattern" could entail two simple paperwork errors involving anything Schumer might claim to include "illegal gun trafficking" within a decade, or any number of unknowing, innocent business mistakes.
Once RICO comes into play, the dealer, or an accused individual, is subjected to a whole new set of procedures and rules that make defense difficult, if not nearly impossible.

While the current burden of proof for conviction of a Gun Control Act "predicate" charge is the high constitutional bar of "guilt beyond reasonable doubt," the burden of proof for the racketeering "derivative crime" is merely that required in civil cases--guilt based on the "preponderance of evidence." There is, of course, an enormous difference.

But what makes RICO so dangerous for firearm owners and those in the lawful trade of firearms is that knowledge--"state of mind"--is neither a defense nor a requirement for prosecution.

Where many predicate crimes require overwhelming proof that they were committed "willfully"--that is, intentionally, with full knowledge of the law and its consequences--RICO derivative crimes require no such state of mind. Nothing. A breach of the law alone constitutes the sole evidence considered by a court.

Yet there is another "state of mind" issue that also factors into the inherent dangers of RICO--the malicious state of mind of those who would abuse the law to federally prosecute gun owners.

What RICO Could Really Mean

It is obvious how RICO could be used against any business entity or person in the lawful chain of federally licensed commerce. Yet what about individual gun owners?

What about the danger to any organization a RICO defendant might be associated with or have membership in? Under RICO, federal prosecutors could claim such an entity is a related "racketeering enterprise." Gun clubs. Collectors' associations. The NRA. All could be in danger.

For firearm collectors, and especially for ordinary, casual firearm owners who know little about federal gun laws, there are already provisions on the books that present a terrible potential danger for individual gun owners under RICO.

For example, it is a federal felony to transfer a firearm from one individual across state lines to another without going through a federally licensed dealer for the transaction.

Here's a plausible RICO scenario:

As a birthday gift, a grandfather in Belpre, Ohio, gives a 1930s vintage Savage .410 single-barrel shotgun to his 12-year-old granddaughter a few miles across the river in St. Maries, W.V. Most would call him a wonderful grandfather, but technically he has committed a federal felony.

That act--a gift across state lines for perfectly innocent reasons--is known in legal circles as "malum prohibitum," meaning that there is nothing intrinsically criminal about it, other than the fact that government has outlawed it. There is no criminal intent; there is no knowledge of wrongdoing. Compare that doctrine of law with "malum in se," criminal conduct that is universally wrong, like murder, robbery, assault, rape, etc. Included in that category is real gunrunning, where real criminals commit real felonies with real criminal intent.

Today, absent RICO, to pursue a federal case against the grandfather, a federal prosecutor would have to prove that this was a willful violation of the law; that the grandpa had some criminal intent in mind. It is doubtful that any court--given the protections of Volker-McClure--would convict, or even agree to hear such a case.

With RICO--absent criminal intent and with a soft burden of proof--it could be a different story. Additionally, it's possible the gun club the grandfather belongs to could also be prosecuted under RICO for "racketeering conspiracies." In fact, if the grandfather was an NRA member, our Association could also find itself drawn into such a conspiracy allegation.

In the "bad old days," before enactment of the Firearm Owners Protection Act, miscarriages of this type actually happened quite often. If Schumer, Bloomberg and their ilk have their way, those "bad old days" would return, ushered in by RICO statutes being applied to federal gun laws.

If Schumer has his way, passing down a family heirloom across a state line could jeopardize not only you, but your family, your gun club and any other like-minded organization to which you belong--even the NRA.

In his April 1997 "Standing Guard" column, NRA Executive Vice President Wayne LaPierre exposed an internal planning memo generated in then-U.S. Attorney General Janet Reno's Justice Department that listed a series of anti-gun "initiatives." Prominent among them was the use of RICO against gun owners. The language of the memo gives a frightening look into the anti-civil liberties mindset of those who would use RICO to persecute gun ownership.

It spoke of plans to "amend the RICO statute to add certain federal offenses involving the illegal transfer of firearms to the list of RICO predicates ... and facilitate the prosecution of certain RICO cases by providing the prosecutors need not prove that a defendant personally agreed to commit any acts of racketeering." (Emphasis added.)

Of course, that is insane. But that could be the future under an anti-gun-rights administration.

To see what such a future could hold, gun owners must take a look at the past. A bit of history is in order here.

It has been 21 years since the enactment of Volkmer-McClure--the Firearm Owners Protection Act of 1986--named in honor of its prime co-sponsors, U.S. Rep. Harold Volkmer, D-Mo., and U.S. Sen. James A. McClure, R-Idaho, who doggedly led a long battle for its passage. Enactment of that law succeeded in curbing what had been years of civil liberties abuses against federal firearm licensees and ordinary gun owners by a rogue Bureau of Alcohol, Tobacco and Firearms (BATF).

When NRA's young Institute for Legislative Action (ILA) began its seven-year campaign to reform the law, the landscape was littered with the shattered lives of thousands of men and women--firearm dealers, collectors, ordinary gun owners--who had become the victims of BATF abuse.

The evidence collected and presented to Congress was so compelling that even key senators who had been major anti-gun leaders, like Indiana'sU.S. Sen. Birch Bayh, took active part in shaping the reforms. Because of the exposure of BATF abuses in a series of congressional hearings, and through successful efforts by NRA-ILA to reach the general public with stories of abuse, the legislation passed both houses and became law in a truly bi-partisan effort.

A very key provision of Volkmer-McClure was the inclusion of intent as an element for arrest and prosecution. Prior to enactment of the reforms, not a single violation of the Gun Control Act required any element of criminal intent, and every violation was a felony--even the most miniscule, innocent slip. It was a brutal combination often abused by agents and prosecutors.

Lives were ruined, families were shattered, and people were convicted and sent to prison over arbitrary interpretations of simple regulatory mistakes where no intent was ever required for prosecution. Under Volkmer-McClure, the government finally had to prove that breaches of the law were knowing, or willful--that violators knew the law and intended to break the law regardless of criminal consequences.

The abusive prosecutions were stopped dead in their tracks.

If gun control violations were added in S. 77--all of those essential protections would instantly vanish.

Again, as stressed by Anderson and Jackson, "Conspicuously absent from RICO is any required mental state: Violation of RICO does not require intent, recklessness, willfulness or even knowledge on the part of the accused." (Emphasis added.)

There is nothing new about the gun-ban crowd attempting to harness RICO as their ultimate weapon. It was proposed in 1988 by then-U.S. Sen. Howard Metzenbaum as an amendment to what became the so-called Brady law.

Through a considerable effort by Second Amendment supporters in both houses of Congress, RICO did not become part of that package.

Among those instrumental in stopping the RICO provision then was Dave Kopel, one of the foremost writers and scholars on Second Amendment issues, a frequent America's 1st Freedom contributor and now research director for the Independence Institute in Colorado. At the time he testified against the Brady RICO amendments before the Senate Judiciary Committee, Kopel was fresh from a two-year stint in law enforcement as an assistant district attorney in Manhattan, N.Y.

"Approximately 75 percent of BATF gun prosecutions were aimed at ordinary citizens who had neither criminal intent nor knowledge, but were enticed by agents into unknowing technical violations."

Calling the inclusion of federal gun laws as RICO predicates "offensive to the Constitution," Kopel warned that "the case for these proposals is based on deception, misstatement and outright lies" and that its "only real utility is to increase police and government control over law-abiding gun owners."

When Kopel testified against RICO, the abuses of BATF and the relief provided by Volkmer-McClure were still fresh in the minds of the nation's gun owners, and he nailed the heart of the matter:

"[T]he bill amounts to a back-door repeal of the Firearm Owners Protection Act. This bill gives the Bureau of Alcohol, Tobacco and Firearms new authority with which to harass non-criminal gun owners.

"For many years, BATF spent much of its time pulling the so-called 'straw man' entrapment game. Agents posing as fake buyers would trick gun collectors and small-scale dealers into technical violations.

"The Firearm Owners Protection Act took BATF out of this dirty business," Kopel continued. "The RICO gun bill lets BATF back in. Gun collectors tricked by BATF would now be 'gun racketeers operating a criminal enterprise.' Further, BATF could invoke civil forfeiture, even after an acquittal, to confiscate the collections of these small-scale dealers.

"From a civil liberties or due process point of view, the last agency that deserves any additional discretionary power is BATF," Kopel said.

Furthermore, Kopel testified: "According to this subcommittee: Approximately 75 percent of BATF gun prosecutions were aimed at ordinary citizens who had neither criminal intent nor knowledge, but were enticed by agents into unknowing technical violations."

At that time, it was a numbers game pure and simple--a conviction was a conviction.

That brings us back to S. 77--and to any future legislation that would promote federal gun laws to RICO "predicates."

With a combination of RICO in firearm law and Hillary Clinton or Barack Obama in the White House, you can bet the farm the "bad old days" would quickly return. Every peaceable individual who owns a firearm will be in jeopardy.

The gun-ban crowd always talks about "first steps." In the case of the Bloomberg-Schumer big lie campaign about the phony issue of "illegal guns," this "first step"--enactment of S. 77 or any other RICO legislation--could easily be the final step.