Assault Weapons: the political game


By Harry V. Martin


Copyright FreeAmerica and Harry V. Martin, 1995


The fear that assault weapons were proliferating in California caused the State Legislature to enact tough legislation outlawing and/or requiring registration of such weapons. The hysteria over assault weapons was fanned by the state Attorney General's Office. The law that was created was both impractical and costly to enforce.

The foundation for the legislation was the shooting of students in a Stockton schoolyard by Purdy. After the shooting, in preparation for legislation on assault weapons, the Attorney General's Office conducted a survey of all law enforcement agencies and coroners to determine the amount of crime in which assault weapons were used. While the survey was being conducted, the Attorney General's Office was pushing for the extensive and virtually impractical legislation.

The Attorney General's Office not only hid its findings from the Legislature and from the public, but it also destroyed the draft report written on September 26, 1991. With the destruction of the report and survey material, the Attorney General's Office today insists it does not have any statistics on assault weapons. In a letter to State Senator Robert Presley, Patrick Kenady, assistant Attorney General for Legislative Affairs, states, "We have received your request for a copy of a document entitled Assault Weapon Use Survey. However, such a document does not exist. What you refer to was a preliminary draft document not retained in the ordinary course of business and furthermore, would be exempt from disclosure under the California Public Records Act. Government Code 6254, subsection (a)." The Attorney General's Office even denied a Public Records request for the report by the California Organization for Public Safety. "Certain documents were not provided for your inspection and were excluded as exempt from disclosure," Deputy Attorney General Anthony L. Dicce wrote to the California Organization for Public Safety. Dicce specifically stated that one of the items refused was the "Preliminary drafts of assault weapons survey". M. David Stirling, chief Deputy Attorney General, told Senator Presley on November 5, 1991, stated, "Not only do they not have actual use statistics of any value on the question, but they do not even have a system or process for collecting statistical information about assault weapons use in the commission of crimes."

ATTORNEY GENERAL'S OFFICE REFUSES TO RELEASE DOCUMENTS

Despite the unsuccessful efforts of State Senators and law enforcement agencies to obtain a copy of the assault weapons report, the Napa Sentinel has obtained a copy of that destroyed report and its contents may reveal why the Attorney General's Office destroyed the document. Not only has the Sentinel obtained the actual report, but it also has the various data used to compile the report, all of which the Attorney General's Office denies exists or which it refuses to release. The Sentinel documents include the following:

  • Draft Report on a Survey of the use of Assault Weapons in California in 1990 by Torrey D. Johnson, program manager for the California Criminalistics Institute.

  • Assault Weapons Survey Addendum by the California Organization for Public Safety.

  • Crime and Delinquency in California, 1990, by the California Department of Justice.

  • Laboratory Survey of Assault Weapons Submissions.

  • Memorandum of Gregory Cowart, director of the Department of Justice, dated October 10, 1991, entitled "Data on Assault Weapons".

  • Memorandum to G. W. Clemons, director of the Division of Law Enforcement, dated February 13, 1991, from S.C. Helsley, assistant director of Investigations and Enforcement Branch.

  • Memorandum to G. W. Clemons, director of the Division of Law Enforcement, dated October 31, 1988, from S.C. Helsley, assistant director of Investigations and Enforcement Branch.

  • Memorandum to Patrick Kenady, assistant Attorney General, dated February 14, 1991, from S.C. Helsley, assistant director of Investigations and Enforcement Branch.

    The material contained in the material is damaging to the Attorney General's Office and to the legislation of assault weapons.

    The documents reveal that in December 1988, law enforcement officers and prosecutors meeting in Oakland. "Their object was to reinvigorate the push to achieve some level of assault weapon control," a February 14, 1991, memorandum states. "As a follow-up to the meeting, a survey instrument to assess the assault weapon problems was developed and distributed by the Department of Law Enforcement. The results were not compelling and many large agencies did not respond. A generic description of what was not an assault weapon was also developed and became the foundation for later 'lists.' The first legislative draft was also prepared which included the notion of a commission that would decide twix (sic) good and bad assault weapons." In early January 1989, the Attorney General (John Van de Kamp) and his Executive Staff were briefed on the difference (or lack thereof) between assault and non-assault weapons. At the conclusion of that briefing, the Attorney General, to the obvious displeasure of some of his key advisers, said that he would not support assault weapon legislation unless hard data could be developed," the memorandum states. That hard evidence was never found.

    STOCKTON SHOOTING CHANGED THINGS

    Only after the Purdy schoolyard shooting and while Van de Kamp was seeking higher political office, did he agree to support legislation without the statistics to support it. Yet the legislation never banned the type of weapon used by Purdy. The Attorney General's Office agreed, according to the memorandum, that "information on assault weapons would not be sought from forensic laboratories as it was unlikely to support the theses on which the legislation would be based." Because a large group of "constituents" had Ruger Mini 14, MI Carbine, MI Garard and other assault weapons, they were excluded from the list. "It was agreed that certain weapons probably had too large a constituency to ever be worth the risk," the memorandum states. The legislation finally boiled down to a comprise list of an "odd collection of firearms which range from the long out of production, to exorbitantly expensive, to the 'evil' AK 47. As no specifically defined problem drove our efforts, such an odd collection should not be surprising." The memorandum states, "The old adage of If you don't know where you're going - you won't know when you get there seems relevant to our efforts in support of the Roberti/Roos Act."

    The memorandum admits the following circumstances surrounding the assault weapons legislation:

    ASSAULT WEAPONS BILL IS TOO VAGUE

    The February 14, 1991 memorandum by Helsley, states, "We can effectively control all semi-automatic weapons or leave them all alone. What I don't think we can accomplish is proper implementation of a vague and ambiguous law.." Helsley proved correct when Attorney General Dan Lungren announced that the assault weapons registration would be extended, noting the law was very difficult to enforce.

    The day before Helsley wrote the above memorandum, he wrote to the Division of Law Enforcement. "In anticipation that additional legislation would be authored on the assault weapon issue, I directed the Bureau of Narcotic Enforcement and Bureau of Forensic Services to collect relevant data for 1990. Two of the theses on which the Roos/Roberti legislation was founded focused on the use of assault weapons by drug trafficking organizations and violent criminals. To gain an updated understanding about those issues, I requested the following: (From the Bureau of Forensic Services) a listing of machine guns, submachine guns and assault weapons submitted for analysis as part of homicide or assault investigations. (From the Bureau of Narcotic Enforcement) a list of machine guns, submachine guns and assault weapons seized as part of the BNE investigation and booked into evidence at a field office or task force."

    The Bureau of Forensic Services operates 11 regional laboratories. Crimanlistic services are provided to 46 counties that have approximately 30 percent of the state's population. BFS services mostly rural areas, but its service areas include urban centers such as Riverside, Fresno, and Stockton. While all weapons involved in violent crime do not require forensic analysis, it is reasonable to assume that the firearms submitted to BFS are representative of what is generally used in violent crime, according to the memorandum.

    The survey showed that of 378 firearms submitted to the BFS in 1990, only one was a submachine gun, 1/4 of 1 percent. The total assault weapons listed in the Roberti/Roos Act totaled 22, 5.8 percent, of which seven (1.8 percent) were used in homicide or assault cases and 15 were found in the possession of individuals. In 1987, a similar survey was done which found that of 215 firearms submitted from homicide and assault cases, five were "assault type" weapons. Of 1,979 firearms seized by the Bureau of Narcotics Enforcement, four were machine guns, 8 submachine guns, and 58 assault weapons, 2.9 percent. The memorandum states, "It is possible that some of the weapons have been double counted as BFS is the primary source of forensic support to BNE."

    Helsley memorandum states, "The only shooting BNE special agents had in 1990 involved a suspect with a handgun. The percentage of armed suspects encountered by BNE during arrests has, at worst remained constant, but has more likely decreased in recent years. In the past 20 years, BNE special agents have never been fired at by a suspect with one of the weapons listed in 12276 PC (Roberti/Roos Act)."

    U.S. GOVERNMENT PROVIDES MILLIONS OF WEAPONS

    Helsley also wrote a memorandum on October 31, 1988. "On October 19, 1988, Acting Director Wynbrandt asked me to provide some thoughts on whether a definition could be formulated which would allow legislative control of 'assault rifles' without infringing on sporting weapons. I do not think the necessary precision is possible." Helsley proceeded to outline concepts, such as action type, caliber, magazines, rifles vs. pistols, and size. "A war on assault rifles would have a number of vulnerable flanks," Helsley wrote. "For many decades the Federal Government has been selling World War II era M-1 Garands and M1 Carbines (both are potential assault rifles) at bargain basement prices through the Director of Civilian Marksmanship. This has been done to encourage the growth of, and participation in, formal rifle matches. Some of the most likely victims of assault rifle control would be the AR-15 and the M-1A. As these weapons are the very foundation of national 'service type' rifle matches, a ban could devastate competitors in California."

    Helsley further wrote, "At more of a gut level, a ban would deprive military veterans of souvenir war trophies and commemorative issue firearms. It goes without saying that the three million strong National Rifle Association would take exception to such an approach. We could expect them to ask, 'What's the problem'? Obviously, there have been some high visibility crimes which involved semi-automatic UZIs and AK-47s, but I suspect that a close analysis would put that frequently at or slightly above the statistical aberration level. Last year, I surveyed the firearms used in violent crimes which were submitted to BFS for analysis. I believe that this would provide a good picture of what criminals use when they want to hurt someone. The figures are self explanatory and confirmed our intuition that assault type firearms were the least of our worries. It's really the .22 and .38 Caliber handguns and 12 gauge shotguns that inflict the majority of the carnage." Yet the State Attorney General's Office still denies it has any statistics on the issue of assault weapons.

    "Consequently, I believe that assault weapons cannot be defined in a workable way, by size, caliber, action type or magazine capacity," Helsley wrote. "By focusing on assault rifles, we create the impression that somehow a 10 shot semi-automatic rifle is inherently more evil or dangerous than a pistol with a 20 round magazine. Such reasoning is supported by the same faulty logic that logic created the threat that was allegedly posed by 'cop killer bullets' and 'invisible plastic guns'. Unless a realistic definition can be developed for 'assault weapons', we should leave the issue alone."

    CHANGE IN WEAPON'S MANUFACTURING, NUMBER MAKES IT LEGAL

    The legislation names specific weapons and manufacturers. The AKs were the prime targets, especially the AK-47. Since the law took effect, AK 47s have been assembled in the United States with a whole new set of model numbers. Because the new models are not included on the Roberti/Roos Act list, they are legitimate.

    While the Attorney General's Office says it has not data available on assault weapons, the draft report disputes that stand. "Though much is being said, there has been a dearth of hard data relating to the actual use of the so-called 'assault weapons' as listed in 12276 PC," the introduction of the draft report states. "The California Criminalistics Institute undertook this survey to attempt to develop a more accurate picture of the 'assault weapon' use in homicides and assaults in California in order to respond to inquiries from members of the legislature."

    "One of the questions raised by legislators was whether the tax dollars necessary to implement and enforce 'assault weapon' control legislation are justified by the extent of the problem and potential result," the introduction continues. Despite the fact the Attorney General's Office says no statistics are available and despite the fact the Attorney General's Office assisted in framing the legislation, its destroyed report does not support either stand. The draft report states in its summary of results, "It is clear from the data that assault weapons play a very small role in assault and homicide firearm cases submitted to city and county labs. This data shows that in the neighborhood of less than 5 percent of homicide and assault firearms fall into the 12276 PC list." The shocking fact of the Attorney General's denial of available statistics is that the conclusions of the destroyed report parallel previous findings, as well. "This is in agreement with previous data collected on firearms submitted to California Department of Justice crime laboratories prior to the enactment of the California Assault Weapon Control Act as well as for the years following the effective date of that law," the destroyed report states. "The data collected in this study, counted 4844 guns which included 45 'assault weapons' (less than 1 percent assault weapons)."

    The draft outlines how the data was collected, stating that on July 17, 1991, a letter and simple questions were sent to 21 city and local crime laboratory directors. In Los Angeles County, alone, 3881 weapons were used in homicides and assault, of which eight were assault weapons described in the Roberti/Roos Act. The destroyed report states, "The discussions that surround the question of gun control, particularly efforts in the area of assault weapon control, are fraught with lack of data and tremendous misinformation in media, literature, and confusion in the law. The lack of data was pointed out in 1982 in the report of a $287,203 study by the National Institute of Justice." The report admits that the Purdy schoolyard shooting spurred efforts to promulgate gun control. "When this new 'assault' weapon legislation was proposed, the California Department of Justice, Bureau of Forensic Services records indicated that the incident of 'assault' weapon use was very low." The report states about assault weapons, "Firearm examiners generally agree that these weapons are infrequently encountered in casework related to homicides and assaults. When attempts were made to find and photograph 12276 PC weapons, it become obvious that there is a dearth of these firearms in private collections and in retail sales as well as in law enforcement collection."

    REPORTS SAYS ASSAULT WEAPONS LOW IN CRIME STATISTICS

    One of the reasons the Attorney General's Office states it would not release the now destroyed report was that it did not have sufficient data on assault weapons. The report, however, states differently. "It appears that surveying the crime laboratories has provided a good handle on the numbers and types of weapons used in homicides and assaults," the report states. "This is because most of all homicide evidence would have been examined by a laboratory prior to prosecution. Furthermore, information about the firearms such as manufacturer and model, provided by firearms examiners, should be more reliable than that provided by the media, police officers or most pathologists. This is because of the training and expertise of the firearm examiners and the technical complexity of the discipline."

    Thus, the report may have been destroyed because of its conclusion, a conclusion that disputes the need for legislation. "Conclusion: The incidence of the use of 'assault weapons' is very much lower than is represented in the media and in political states. The levels are consistent with those predicted by forensic firearms examiners in many laboratories prior to the enactment of the Assault Weapons Crime Act. The levels of use in 1990 are consistent with the levels of use found in BFS laboratories from July 1986 to May 1987. The data from the Los Angeles Sheriff's Office also reflects low incident of use of centerfire rifles that is relatively constant from 1987-1990. Accordingly, the cost to potential benefit ratio may be very high."

    Senator David Roberti stated in a December 6, 1990, letter, "We in California, though, have a unique problem with our gang and drug wars, particularly in our larger urban areas. Regardless of the story printed in the National Rifle Association newsletter, police and law enforcement agencies reported to me that the increase in assault weapons in these types of arrests unnecessarily put their officers at risk of being gravely injured or killed." The destroyed report does not agree, stating law enforcement very seldom encounter assault weapons described in the Roberti/Roos Act in any arrests.

    On May 8, 1991, Senator Presley wrote to Attorney General Lungren and stated, "As a legislator who voted for the Assault Weapon Ban of 1989, I have followed the implementation and enforcement with a great deal of interest and recently with some growing concerns. One of these concerns is the inability of some law enforcement agencies to provide the statistical information to substantiate law enforcement's claim for need for this law. Furthermore, I have been concerned about reports that of these arrests under the law, most have been pleaded out and haven't gone to trial. And it has been further asserted that charges under this law have not been considerable enough in number to substantiate the claims of need made to garner its passage." Chief Deputy Attorney General M. David Stirling wrote to Senator Presley on October 7, 1991, "there is not a lot of hard statistical data available to assess the impact of the new 'assault weapons' law. The raw data received as a result of that inquiry is of limited value because most of the jurisdictions were unable to provide the information requested." This is in direct contrast to the destroyed report. In a November 5, 1991, letter from the Attorney General to Senator Presley, it is stated, "You expressed frustration in that at the time of the legislative deliberations of the assault weapons bill in 1989, law enforcement and the Attorney General's office represented that assault weapons were proliferating in sheer numbers among the street gangs and drug dealers; whereas now the Attorney General's office is telling you, via my letter to you on October 7, 1991, that we neither have statistical data available to assess the need for the 1989 law nor the means to determine the cost of enforcement of the 1989 law as of this date."

    THE CAT AND MOUSE GAME FOR THE 'NON-EXISTENT' REPORT

    On November 6, 1991, Senator Presley notes that the Attorney General's Office does not intend to publish The Assault Weapons Use Survey. Gregory G. Cowart, director of the Division of Law Enforcement, wrote a memorandum to David Stirling, the Chief Deputy Attorney General, on November 12, 1991, stated, "Senator Presley has requested a copy of subject report. I understand that there is a Public Records Act request pending. Therefore, I don't want to respond without legal authority. I would appreciate it if you could ask whoever is handling the other Public Records Act request to respond to Senator Presley for me." The Attorney General's Office memorandum shows some trepidation about releasing the report to the Senator because the report would show the Attorney General's Office has not been truthful to the Legislator or the Senator.

    The Attorney General's Office then absolutely lied to Senator Presley. On December 20, 1991, Patrick Kenady, wrote to Presley, "We have received your request for a copy of a document entitled Assault Weapon Use Survey. However, such a document does not exist." Two months earlier, Gregory Cowart wrote a memorandum about that very report. "We have discussed the report in our meeting of September 30 and a review of the data conducted by a group of statisticians in our Law Enforcement Information Center. As a result we will not be issuing a report."

    On December 20, 1991, Senator Presley was told the report did not exist. On January 23, 1992 at 5:30 p.m. the report was still on the desk in the Attorney General's Office. The report was on the desk of Tony Dicce, who acknowledged having it but refused to release it. The Napa Sentinel was able to obtain the report and all the relative memorandums and letters in May of this year from a clandestine source.

    It appears the assault weapon ban, that is limited to very few weapons, was more politically motivated than needed. The cost to enforce such a law has proven extremely expensive and ineffectual. Of an estimated hundreds of thousands of these weapons in existence in California, mainly with collectors, z only about 50,000 have been registered. The law appears to be more cosmetic than enforceable. Thus, the report on the low level use of assault weapons in the commission of crime has been destroyed, except, perhaps for a few copies.