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Author’s Commentary on Article Entitled, “Mayors Against Illegal Guns: A Plan to Prevent Future Tragedies”

May 13, 2011

Author’s Note:

I want to point out the following exemptions listed under “Step Two”of the Mayors Against Illegal Guns campaign.  I think this means that they intend, under certain circumstances, to “bend the laws” so to speak. Generally,

“Revised legislation would exempt certain gun permittees and some types of transactions from background checks:

  1. Transfers of guns to an immediate family member, grandchild, or grandparent;
  2. Inheritance of guns; and
  3. Sharing guns while hunting, at a shooting range, or at a competition.”

You will forgive me in advance for being extremely blunt in this commentary.

*  *  *

My son committed suicide in the home of a convicted domestic violence felon, his father and my ex-husband, where he lived and kept guns until the day of his death last October 2011.

Even as my son lay dead on the coroner’s slab, the Sheriff’s Investigator actually initially asked my ex-husband,

“[If he wanted] the .45 caliper back after the investigation was closed.”

I was livid when I discovered this information through the verbal admission of the investigator as he answered my query as to the disposition of what I felt was a weapon used during the commission of a crime. I went on to express that the crime, namely, was —inter alia, illegal possession of weapons by a convicted domestic violence felon. And as such the weapon is evidence for an alleged crime into which I demanded an investigation. I informed him that I saw at least three weapons to include:

  1. a .22 caliper long rifle propped in the corner of the room with no trigger lock;
  2. a shotgun or other single-bore large game rifle in the corner of the room with no trigger lock;
  3. a black  .9 millimeter handgun that was in an opened combination safe.
  4. I believed that the father did not have the combination to the safe; and therefore he would leave the door open so that he could maintain exclusive use and possession of the handgun, which was not confiscated during the investigation and therefore flew successfully “under the radar of law enforcement.”
  5. I informed him of my concern that a four-year-old was running unsupervised around my son’s room, where the unsecured weapons and ammunition remained within her reach. Kids are accidentally shot by guns every day. I told him that police officers, once informed must file a mandatory report to DSS Child Protective Services.

Yes, the felon decided that now that he possessed the shot gun and long gun, the handgun, and a few boxes of ammunition — and what was reported as a homemade black silencer — he would keep them indefinitely for his exclusive use and possession, with full knowledge that as a convicted felon that he is prohibited from keeping them. This is willful intent with knowledge. He refrained indefinitely from informing law enforcement of this prohibition because to do so, primarily, would be an admission of guilt. A man cannot be forced to testify against himself. And so he didn’t.

And the cops didn’t ask.

Are you following me here? The father’s options, so he decide to choose otherwise, included:

  1. “Having the gun melted down;”
  2. “Selling the gun and giving the proceeds to the father;”
  3. “Letting the Office of the Sheriff use the weapon for their own legal purpose;” or
  4. “Retitling the gun to someone else through the Sheriff’s office.”

My ex-husband replied, I was informed, that he

“Wanted the Sheriff’s office to sell the gun [by whatever means] and then he would ‘donate the money to the Sheriff’s Office.”

The investigator was going to allow this felon to “donate money to the Sheriff’s Office after he made sure that they sold the evidence of a crime first. Stinks like a bribe to me, or a conspiracy to aid and abet a convicted felon to escape prosecution for what is mandatory gun possession laws.

But then again, I’m just the victim sitting on the outside looking in from the window of truth that is being painted before my very eyes as the story continues to unfold like some great nightmare.

Of course, there is that the possibility that the Sheriff’s Office would actually — before releasing the weapon to this felon:

  1. Run a NICS background check against the father of the child who committed suicide at his house;
  2. Find that he is a convicted felon of domestic violence prohibited to possess weapons and ammunition;
  3. Would make an inquiry through proper channels to verify any other guns that the suicide victim may have possessed at his residence, which he shared with his father who now would have constructive possession of the weapons, which is illegal;
  4. Run a complete and comprehensive criminal background check against the felon to see if there are any other violent crimes for which he was convicted;
  5. Relate the information to the State’s Attorney so that he would file an information on what are mandatory gun laws;
  6. At which point a jury may decide if the felon should be indicted on criminal conspiracy and possession and perhaps involuntary manslaughter in that the felon was directly responsible for allowing his son to keep weapons with his full knowledge and consent;
  7. That a search warrant and arrest warrant would be issued; and
  8. An arrest would have been immediately made to ensure the immediate safety of family, friends and the community in general.

Nah. I seriously doubted it.

I immediately contacted the lead investigator who wrote the official report and was in charge, from what I understood, of overseeing the investigation in general. When I told him of my ex-husband’s felony background to include a conviction on possession with intent to distribute two pounds of marijuana, the extradiction for kidnapping a nonfamilial minor across state lines compounded with the indictment on felony rape of a 14-year-old and contributing to the delinquency of a minor; of assault and battery whereupon he bit a chunk out of a man’s cheek; of the domestic violence felony charge for which he was sentenced three years imprisonment, amongst other things. He acknowledged my concern and told me to contact the State’s Attorney’s office

“…since they originally prosecuted my ex-husband on the domestic violence charges as this would be a violation of his felony conviction.”

This made sense to me. I believe that he also may have said that I could talk to the Sheriff “if it would make me feel better,” but since he seemed to address my concerns and assured me that the .45 would not be released to a felon and that it would remain in the possession of the Sheriff, I felt comfortable that since I live out of state that the State’s Attorney might be the best person to address on the matter next.

So I contacted the State’s Attorney directly via email. [Coincidentally, I had child support and alimony enforcement procedures occurring simultaneously through the State’s Attorney’s Office of Child Support Enforcement with hearings pending for arrears of over $50,000. My complaint included the fact that I was concerned that my ex-husband — defendant in the upcoming support hearings — was in constructive possession of my son’s weapons and ammunition and that his Assistant State’s Attorney informed me that I would have to travel to Maryland to be physically present for the hearing(s) — despite the fact that I knew otherwise.] I was very specific and informed him that I was aware of the mandatory gun laws and that a convicted domestic violence felon — which his office prosecuted — was in constructive illegal possession of guns and ammunition. He told me,

“If you believe that a crime is being committed, contact your local law enforcement agency.”

Funny. The Sheriff’s Office referred me to this guy, who then refuses to file an information or obtain a search and arrest warrant based on bona fide information by an eyewitness who just lost her son to suicide at the felon’s residence .

But, I do as I am advised, and this time I am sure to speak directly with the Sheriff himself. He immediately assigns a task force to include a detective and an “ATF liason” with whom he has “set a meeting for Friday morning.” At this point, it is more than three-and-a-half months since my initial concern and complaint to the Sheriff’s office via the investigator in October.

Meanwhile, the holidays to include old anniversary dates… Thanksgiving… Christmas… New Years… Valentine’s Day… my birthday… St. Patty’s Day… the ex’s birthday… and Easter (the anniversary date of “the final beating” which got the convict his felony domestic violence charge) were ticking off the calendar with my daughter’s and my dead son’s birthdays just around the corner. Anybody who knows about domestic violence knows that the holidays are the worse time of year for violent outbursts from a repeat offender. And, the guns are in the house with the ex’s new baby momma of their rambunctious four-year-old full time, and neither the State’s Attorney nor the Sheriff’s reported the fact the DSS Child Protective Services, as is mandated by law. As far as I am concerned, the State and County law enforcement put innocent lives in immediate harms way by allowing an “investigation” creep along — and all the while I am being told to

“Be patient,” and that

“The wheels of justice turn slowly.”

Right. Slowly. One more incident involving this particular felon and illegal weapons would be blood on these individuals’ hands because of their blatant refusal to take the situation seriously and to intervene on potentially lethal consequences. They were, in fact, worried that

“No judge or prosecutor would act on this case or even issue a search and/or arrest warrant because — now, get this:

(1) Too much time has passed since the suicide; /1

(2) They could not be sure that the weapons were still there or not;

[that I was a reliable eye-witness to the fact that the weapons and ammunition were in the house after the suicide because I saw them with my own eyes and FURTHER informed my ex that he was “prohibited to possess them and that he MUST call the Sheriff to come get them” and that as consequently proved over six months later he still possessed the guns with the intention of owning them indefinitely and with full knowledge and understanding that he is prohibited from doings so. And, and further that there are at least a dozen other reliable eyewitnesses who are qualified to testify in a court of law that Michael owned the guns, kept them in the house, and that he did so with his father’s full knowledge and willful consent to keep the guns and ammunition in his son’s room to which father has full access and son was guaranteed no right to privacy by virtue of a formal lease;

(3) The suicide weapon is not considered evidence in any criminal proceeding [even though the father knowing and willingly allowed his son to keep the weapons in the house since the day he purchased them until the day he used one to blow out his brains];

(4) The father was really upset because of the suicide and he owns and operaes a landscape design business (he lived in the second detective’s town and she was aware of his business for some reason unknown to this author);

(5)

Miraculously, no blood was spilled before the “ATF liason” — a State Trooper — took three weapons from the house, including one weapon that I had not seen when I was on the premises; I further contend that a shotgun and illegal silencer remain unaccounted for by law enforcement and that a felon is still in illegal possession or else made an illegal transfer. Either way, that is two more counts against this felon. At least the shotgun can be tracked through NCIC reporting requirements, but to this date law enforcement refuses to confirm with this author that no other weapons may be in the felon’s possession.

The above guidelines would not prevent illegal transfers when a father and son conspire to avoid the radar of law enforcement by allowing the latter to live in the convict’s home with guns and ammunition — especially if the son is dead and the father is left to his own devices postmortem.

“Possession” in this case is illegal. The felon had possession for over six months of at least two rifles, a shot gun, a silencer, and a handgun with ammunition. The shotgun and silencer are still unaccounted for as law enforcement decided to prematurely close this case. Search my blog articles for case law and legal statutes for this topic, amongst others, relating to this case.

While law enforcement “assumed” that transfer of my son’s guns to an felon falls under “transfers to immediate family members through inheritance” by virtue of death is absurd. If I did not find my voice and take a stand, the guns would still be there. However, no arrests were made. I therefore take another stand to ensure this felon’s conviction. Follow my story, which is about to hit the national media circuit.

Let’s see what the Mayor in Frederick Maryland has to say about what is happening in his own town — and what he intends to do about it.

Charley

*  *  *

In 1968, assassins gunned down Martin Luther King, Jr. and Robert F. Kennedy.  In the wake of that double tragedy, Congress passed the first federal laws to limit access to guns, by prohibiting dangerous people, like felons, drug abusers, and the mentally ill from purchasing or possessing guns.

In 1993, Congress passed the Brady Bill, named for President Reagan’s press secretary James Brady, who had been critically wounded in the assassination attempt on President Reagan.  The Brady Bill created a system of background checks that helped to make real the purpose of the 1968 law.

Unfortunately, incomplete records and loopholes in the law have stopped background checks from doing their job:

  • The Columbine killers got around the system by using guns bought at a gun show from an unlicensed seller: no paperwork, no questions asked.
  • At Virginia Tech, a killer got a gun he should have been prohibited from buying because his records were never reported to the FBI’s gun background check system.
  • The shooter in Tucson also got a gun he should have been prohibited from buying because his records weren’t in the database – and then got a second gun because lax federal regulations frustrated the intent of the law.

Most murders that take place with illegal guns do not make the headlines.  Every day, 34 Americans are murdered with guns, and most of them are possessed illegally. Since, 1968, more than 400,000 Americans have been killed with guns.

The system needs to be fixed.  Creating a comprehensive system to keep guns out of the hands of dangerous people requires two steps:

Step one:  Get all the names of people who should be prohibited from buying a gun into the background check system.

Step two:  Close the loopholes in the background check system by requiring a background check for every gun sale.

A Plan by Mayors Against Prohibited Guns

STEP ONE:  GET ALL THE NAMES OF PEOPLE WHO SHOULD BE PROHIBITED FROM BUYING A GUN INTO THE BACKGROUND CHECK SYSTEM.  

Context:  NICS, the National Instant Criminal Background Check System, which is used to conduct background checks on prospective gun buyers, is missing millions of records. Federal law requires records concerning the mentally ill, drug abusers, perpetrators of domestic violence, and other people who are forbidden, under current state and federal law, from having guns to be included in the system.  The problem of missing records became obvious in 2007, when Seung Hui Cho, who was prohibited from owning a gun due to mental illness, was not listed in the background check system and was therefore able to buy two guns to commit the Virginia Tech massacre.  Congress responded by passing the NICS Improvement Amendments Act, which encourages states to share records.  As a result, the number of records in NICS’ Mental Defective File increased significantly under the new law, from nearly 300,000 in 2006 to more than 1.1 million today.  The murders in Tucson, however, show that problems persist.  The shooter, Jared Loughner, was able to buy a shotgun less than a year after admitting to the U.S. Army that he was a regular drug abuser because the armed forces had not forwarded his name to NICS.   Today, there are just over 2,000 people listed as drug abusers in NICS.

Revised legislation would strengthen the NICS system in six ways:

Funding:  Fully fund the NICS Improvement Amendments Act to help agencies and states cover the costs of gathering records and making them electronically available to the FBI. The legislation, enacted in 2008, is failing to achieve its goals in part because Congress has supplied only 5.3% of the authorized amount from Fiscal Year 2009 through Fiscal Year 2011.

  • That money was supposed to be available to states to help cover the cost of gathering and supplying records.
  • The revised law would guarantee full funding to states and federal agencies to comply with reporting requirements to the NICS database.

Penalties:  Establish tougher penalties for states that do not comply with the law by cutting more of their Justice Department funding.

The NICS Improvement Amendments Act establishes only minor penalties for non-compliance.  It sets out a timeline, and in each year starting in Fiscal Year 2011 states are required to turn over a target percentage of the records they have naming people who should not be allowed to buy guns under federal law.  If they do not comply, they could face cuts to a portion of their federal justice assistance funding. The potential cuts are small, however: only 3% to 5% of a single grant (Byrne Justice Assistance Grants or JAG), which provides about $300 million a year nationwide to states.  Furthermore, DOJ has almost total discretion to reduce or waive them.

Revised legislation would put in place tighter deadlines and stricter penalties for states to comply with the law and submit records. States would be required to turn over 75% of their records within two years of enactment and 90% of their records within six years or they would face cuts not only to JAG grants, but also to other Justice Department programs that normally guarantee a share to each state, such as the State Criminal Alien Assistance Program (SCAAP, $249 million a year); Title II grants for juvenile justice ($60 million a year); Juvenile Accountability Block Grants (JABG, $46 million a year), and Enforcing Underage Drinking Laws Block Grants ($20 million a year).  Furthermore, these penalties would rise to 50% of each grant.

Why it matters:  Across the country, the total potential penalties that face all states combined under the current NICS Improvement Amendments Act are only about $15 million.

Federal reporting:  Require every federal agency to certify to the Attorney General twice a year that all relevant records have been submitted. Under the NICS Improvement Amendments Act, each Federal agency must provide to DOJ, at least quarterly, the name of any person it is aware is federally prohibited from buying guns.  Current law does not, however, hold any person accountable for guaranteeing an agency’s compliance.

And federal agencies are not following the law.  For example, only three agencies have sent any records on drug abusers to the FBI.  Revised legislation would hold agencies accountable for quarterly reporting by requiring the head of each agency to report to the Attorney General, twice a year, about the number of records it has shared in each category of prohibited person.  Each report would include the agency head’s written certification that all relevant records have been transmitted.

Why it matters:  Even though Jared Loughner admitted to the U.S. Army that he regularly abused drugs, the Army did not submit his name to the FBI for inclusion in NICS as required by law, and less than a year later, Loughner was able to pass a background check and buy a shotgun.  Later, Loughner bought the Glock he used to kill six people and injure 13 others.

Mental health definitions:  Clarify the definition of mentally ill people who are prohibited from having guns to ensure that dangerous people are included in NICS.

Two critical changes are needed to ensure that people who are mentally ill are listed in NICS.

  • First, the system should include people who have been suspended or expelled from a federally funded college or university because of mental illness.
  • Second, it should include people who are compelled by a court to take medication for mental illness or to get other mental health care, even if they are not “committed” to in-patient treatment, as the ATF currently interprets the law.

Why it matters:  Jared Loughner was deemed too mentally ill to come to school without a note from a mental health professional, but safe enough to buy a gun.Drug abuse definitions:  Clarify the definition of drug abusers who are prohibited from having guns to ensure that dangerous people are included in NICS.

Since 1968, federal law has prohibited anyone “who is an unlawful user of or addicted to any controlled substance” from possessing any gun.  The revised law would do two things to enforce that prohibition.  First, it would reverse the overly narrow interpretation that ATF and the FBI now give to the law.  They interpret it to apply only to people who have had a drug-related arrest, a drug-related conviction, a failed drug test, or an admission of drug use within the previous year.

The revised law would change that one-year prohibition to a five-year prohibition.  Second, the revised law would require federal courts to report to NICS anyone sentenced to mandatory drug treatment even if the requirement was part of a diversionary program that does not result in conviction.

Due process:  Safeguard the rights of people who are listed in NICS.

The revised legislation would continue to ensure that individuals who were wrongly included in NICS as a prohibited purchaser are able to seek relief and be removed from the list of prohibited gun purchasers.  For example, those who were arrested on a drug charge within the past five years but can show they have recovered from their addiction would be able to regain their gun rights.  So would people who had been mentally ill but have recovered and no longer present a risk.

STEP TWO:  CLOSE THE LOOPHOLES IN THE BACKGROUND CHECK SYSTEM BY REQUIRING A BACKGROUND CHECK FOR EVERY GUN SALE.   

Context:  Even if the NICS database included the name of every person prohibited from having a gun under federal or state law, it would still be easy and legal to obtain guns with no background check, no questions asked.  That is because the current law only applies to gun sales by federally licensed dealers.

Under current federal law, only persons “engaged in the business” of selling guns are required to get a license, keep paperwork, and conduct background checks.  People who maintain they are collectors or only occasionally sell guns are not required to do these checks.  Such sellers often congregate at gun shows, which is why many refer to this exception as the “gun show loophole.”   But felons can exploit the loophole whether they are at a gun show or not – buying guns with no background checks at unlicensed sellers’ homes, via classified ads, or even in some cases on the internet.  Experts estimate that over six million guns a year – perhaps 40% of all sales – are made by unlicensed private dealers not subject to the law.

Background checks:  The new law would require that non-licensed people selling guns ensure that the buyer has undergone a background check in NICS.  Sellers would be able to do so in three ways.  First, the seller can go to a licensed dealer to have a background check run on the buyer.  The revised law would cap the fee for conducting these background checks on behalf of private sellers at $15.

Second, the seller can inspect a permit issued to the buyer by a state or local government that confirms they have passed a background check within the previous five years.  Third, the seller can go to or contact a law enforcement official for the background check at the time of purchase.

Why it matters:  ATF has reported that over 27% of the guns involved in its criminal trafficking investigations were tied to trafficking by unlicensed sellers, and over 30% were tied to trafficking at gun shows.

Reasonable exceptions: Similar to the Brady Law, revised legislation would exempt certain gun permittees and some types of transactions from background checks:

  1. Sales to a federally licensed dealer, manufacturer or wholesaler (including sales of curio or relic firearms to a licensed collector);
  2. Sales to law enforcement;
  3. Transfers of guns to an immediate family member, grandchild, or grandparent;
  4. Inheritance of guns; and
  5. Sharing guns while hunting, at a shooting range, or at a competition.

Learn more at http://www.fixgunchecks.org

http://www.MayorsAgainstIllegalGuns.org

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2 Comments
  1. Name Withheld permalink

    This is a very disturbing story and I am sorry for your loss. I hope you get justice. You should call The,Washington Post and the big media circuit. Frederick needs a new sheriff in town. Why didn’t the states attorney do anything? I just read the article you posted on the four-year-old girl who shot herself in the head with a .45 very recently. That could have been the child in your case. The child in your story is endangered and you should report this to Child Protective Services, like you addressed inh another article. I will spread this story like wildfire and will look for a followup article in your blog. By trhe way, your blog has helped me on so many topics to include child support. Did you get a criminal conviction on the nonsupport? How did your case work out for you?

  2. I will keep you informed. Currently, I am unable to speak about this during the investigation phase. But do look for this story in the media. The reporters are waiting for more information and an outcome. This story will hit nationwide. Thank you for your support.

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