BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session J
R
1
0
SJR 10 (De León)
As Amended January 4, 2012
Hearing date: January 10, 2012
Uncodified
SM:mc
FIREARMS TRAFFICKING
HISTORY
Source: Author
Prior Legislation: SB 23 (Perata) - Chap. 129, Statutes of 1999
Support: Asociacion Retalteca; Brady Campaign to Prevent Gun
Violence-California Chapters; California-Mexico Project
(CSU Long Beach Chicano and Latino Studies Department);
Casa De La Cultura Maya; Central American Resource
Center (CARECEN); Council of Mexican Federations
(COFEM); Hermandad Mexicana Nacional; Hondurenos Unidos
de Los Angeles (HULA); Legal Community Against
Violence; Los Angeles County Sheriff's Department;
Sonora USA; Union de Guatemaltecos Emigrantes (UGE);
Union de Poblanos en el Exterior (UPEXT); United Job
Creation Council
Opposition:California Rifle and Pistol Association
KEY ISSUE
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SHOULD A RESOLUTION BE ADOPTED URGING THE PRESIDENT AND THE
CONGRESS OF THE UNITED STATES TO PURSUE A COMPREHENSIVE APPROACH
TO STEM THE TRAFFICKING OF ILLICIT UNITED STATES FIREARMS AND
AMMUNITION INTO MEXICO, AS SPECIFIED?
PURPOSE
The purpose of this bill is to adopt a resolution urging the
President and the Congress of the United States to pursue a
comprehensive approach to stem the trafficking of illicit United
States firearms and ammunition into Mexico, as specified.
Current federal law requires arms exports to be licensed by the
federal government under the Arms Export Control Act. (22
U.S.C. § 2278.)
Current federal law states that it is unlawful for any person
(other than a licensed importer, licensed manufacturer, licensed
dealer, or licensed collector) to transfer, sell, trade, give,
transport, or deliver any firearm to any person (other than a
licensed importer, licensed manufacturer, licensed dealer, or
licensed collector) who the transferor knows or has reasonable
cause to believe does not reside in (or if the person is a
corporation or other business entity, does not maintain a place
of business in) the State in which the transferor resides,
except as specified. (18 U.S.C. § 922.)
Current federal law states that whoever fraudulently or
knowingly exports or sends from the United States, or attempts
to export or send from the United States, any merchandise,
article, or object contrary to any law or regulation of the
United States, or receives, conceals, buys, sells, or in any
manner facilitates the transportation, concealment, or sale of
such merchandise, article or object, prior to exportation,
knowing the same to be intended for exportation contrary to any
law or regulation of the United States, shall be fined under
this title, imprisoned not more than 10 years, or both. (18
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U.S.C. § 554.)
Current California law regulates the manufacture, sale, and
possession of firearms and ammunition in the State of California
and requires that all transfers of firearms take place by or
through a licensed firearms dealer, except as specified. (Penal
Code § 16000, et seq.)
This bill would make the following findings and declarations:
WHEREAS, The rise of firearms and ammunition
trafficking from the United States into Mexico has
fueled the terrorism of both United States and Mexican
citizens by Mexican drug trafficking organizations
(DTOs), that has devastated thousands of families who
have lost loved ones to violence on both sides of the
border; and
WHEREAS, Since the start of Mexican President Felipe
Calderon's administration in December 2006, Mexican
law enforcement agencies have confiscated 102,600
handguns and rifles as of March 10, 2011, and Mexican
security forces have seized 11,849 grenades and 10.6
million rounds of ammunition; and
WHEREAS, Violence along the United States-Mexico
border has escalated dramatically during this same
timeframe as President Calderon has aggressively
fought the growing power of Mexican DTOs, and
approximately 34,612 people have been killed as a
result of drug cartel organized crime-related violence
in Mexico; and
WHEREAS, In a report by the United States Government
Accountability Office (GAO), United States officials
note that violence associated with Mexican DTOs poses
a serious challenge for United States law enforcement,
and given the increased level of criminal activity in
the southwestern United States, violence threatens the
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safety of citizens on both sides of the border; and
WHEREAS, In May 2010, the Mexican government stated
out of the 75,000 illegal firearms seized by Mexican
authorities in the last three years, about 80
percent-60,000 firearms-originated in the United
States; and
WHEREAS, Estimates of guns flowing into Mexico from
the United States are as high as 2,000 guns every day,
a staggering statistic given that Mexico has only
approximately 6,000 legally registered guns; and
WHEREAS, The federal Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF), as of May 2010, has
processed 69,808 firearm trace requests from Mexico,
and, it appears that a majority of these firearms have
a nexus to the United States; and
WHEREAS, There are an estimated 8,479 licensed United
States gun dealers operating along the United
States-Mexico border and according to several ATF
officials, individuals or groups engage in straw
purchasing on a regular basis as part of a scheme to
traffic United States firearms into Mexico; and
WHEREAS, The ATF reports that 87 percent of firearms
seized by Mexican authorities and traced over the last
five years originated in the United States.
Approximately 68 percent of these illegal firearms
were manufactured in the United States, and
approximately 19 percent were manufactured in other
countries and then imported into the United States
before being trafficked into Mexico; and
WHEREAS, In addition to the trafficking of firearms,
the illicit trafficking of ammunition is fueling the
proliferation of gun violence along the United
States-Mexico border, as Mexican drug trafficking
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organizations have virtually unfettered access to
ammunition from the United States; and
WHEREAS, According to ATF, between the years 2006 and
2011, over 1.2 million rounds of ammunition believed
to be destined for Mexico were seized during the
course of ATF-instigated investigations or joint
investigations originating in California, Arizona,
Texas, and New Mexico. During this timeframe, 527,809
rounds of ammunition were confiscated by the ATF's Los
Angeles Field Division, 14,154 rounds were confiscated
by the San Francisco Field Division, 196,450 rounds
were confiscated by the Phoenix Field Division,
380,001 rounds were confiscated by the Houston Field
Division, and 123,300 rounds were confiscated by the
Dallas Field Division; and
WHEREAS, ATF officials state that the most common
method of transporting firearms illegally across the
United States-Mexico border is by vehicle using United
States highways, and that an opportune time to catch
firearm smugglers is following a United States gun
show in Arizona or Texas; and
WHEREAS, Local and state law enforcement agencies are
often the first responders to the scene of a crime,
and have had to deploy and devote ever-increasing
numbers of officers, equipment, and other resources to
address the crimes associated with the DTOs and their
firearms and ammunition trafficking activities; and
WHEREAS, Despite increasingly scarce resources, local
and state law enforcement agencies have implemented a
proactive, cost-effective, and successful border crime
initiative that highlights collaboration among all
levels of law enforcement-local, state, and
federal-and includes the judicious leveraging and
sharing of intelligence, equipment, and personnel to
combat illegal firearms and ammunition trafficking and
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other border-related crimes; and
WHEREAS, Since 2006, 14 United States Custom and Border
Patrol (CBP) Agents have been killed along the border
of Mexico, most recently Agent Brian Terry, who was
killed on December 15, 2010, by being shot with an
AK-47; and
WHEREAS, In February 2011, United States Immigration
and Customs Enforcement Special Agent Jaime Zapata was
shot and killed and another federal agent was wounded
in an ambush by Mexican drug gang members at a fake
military checkpoint on a Mexican highway north of
Mexico City; and
WHEREAS, DTOs have escalated the use of firearms to
attack and intimidate high level Mexican law
enforcement figures, including directors of federal
agencies, politicians, journalists, businesses, and
the general public; and
WHEREAS, Mexican government officials report that
since December 2006, a total of 915 municipal police,
698 state police, and 463 federal agents have been
killed by Mexican organized crime groups, and between
1999 and 2009, 32 news reporters or editors were
killed and an additional nine disappeared; and
WHEREAS, On June 28, 2010, a leading Mexican
gubernatorial candidate, Rodolfo Torre Cantu, was
killed by gunfire in Tamaulipas, just days before the
July 4, 2010, elections, and in late 2008, Armando
Rodriguez, a crime reporter for El Diario de Juárez,
was shot in the head by a 9mm as he drove his daughter
to school; and
WHEREAS, In June 2008, Edgar Millan Gomez, acting
director of the federal preventive police, was
assassinated in his own home by a man wielding two
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9mm pistols one week after holding a press conference
in Cuiliacán to announce the arrests of 12 hit men
working for the Sinaloa Cartel, and that same day,
Roberto Velasco, one of the directors of the federal
organized crime unit, was shot and killed in Mexico
City. The next day Jose Aristeo, chief of staff for
the federal preventive police, was shot and killed in
the same city; and
WHEREAS, United States citizens have also been
terrorized by the violence associated with United
States firearms and ammunition trafficking and Mexican
DTOs. For example, in May 2010, a Phoenix businessman
leading a hunting expedition in Sonora, Mexico, was
found shot dead by an AK-47; in February 2010, United
States and Mexican citizens waiting to cross into
Mexico from Nogales, Arizona, were trapped in a
firefight that erupted in the nearby plaza; in the
spring of 2008, American tourists returning through
the Lukeville port of entry were trapped by gunfire
while waiting in line, and a woman from Nogales,
Arizona, was shot and killed by an AK-47 gunfire at a
fake military checkpoint on a Mexican interstate
highway in Sonora; and
WHEREAS, In July 2011, the United States Department of
Justice announced a new federal policy that would
require all United States gun stores in southwest
border states to submit a report to the ATF when an
individual purchases two or more rifles, including
assault rifles, within five business days; and
WHEREAS, Following the expiration of the Federal
Assault Weapons Ban in 2004, it has become easier to
purchase high-powered assault weapons, and the United
States Department of Justice, Office of the Inspector
General has reported that 48 percent of crime guns
recovered and traced in Mexico in 2009 were long guns,
up from 20 percent in 2004, and recent data also shows
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a surge in seizures of assault rifles and .50 caliber
guns. According to the ATF, the drug cartels tend to
favor military-style assault weapons such as AK-47s,
AR-15s, and FN 5.7mm caliber pistols, known in Mexico
as "cop killers" because they can pierce body armor;
and
WHEREAS, The United States is now experiencing an era
in which the number of illegal border crossings have
decreased over the last decade yet drug-related
violence and the trafficking of United States firearms
and ammunition into Mexico has skyrocketed; now,
therefore, be it
Resolved by the Senate and the Assembly of the State
of California, jointly, That the Legislature urges the
President and the Congress of the United States to
pursue a comprehensive approach to stem the
trafficking of illicit United States firearms and
ammunition into Mexico, that includes as its
centerpiece enhanced collaboration among local, state,
and federal law enforcement agencies to coordinate the
interdiction of illegal firearms and ammunition
trafficking and the implementation of associated
border security policies and operations in an
integrated manner, the allocation of a permanent
source of federal funding to sustain local and state
law enforcement operations to combat firearms
trafficking and other border-related crimes, the
redirection of federal Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF), United States
Immigration and Customs Enforcement, and United States
Customs and Border Protection resources towards this
effort, reenactment of a strong federal assault
weapons ban, along with a ban on high-capacity
ammunition magazines, stronger federal authority to
crack down on corrupt gun dealers, extending Brady
criminal background checks to all gun sales, including
all sales at gun shows to prevent firearms
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trafficking, and the maintenance of firearm purchase
records to help law enforcement track down armed
criminals and solve gun crimes; and be it further
Resolved, That the Secretary of the Senate transmit
copies of this resolution to the President and Vice
President of the United States, to the Speaker of the
House of Representatives, to the Majority Leader of
the Senate, to each Senator and Representative from
California in the Congress of the United States, and
to the author for appropriate distribution.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
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prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This joint resolution does not appear to aggravate the prison
overcrowding crisis described above.
COMMENTS
1. Need for This Joint Resolution
According to the Author:
Drug trafficking organizations along the U.S.-Mexico
border have been terrorizing citizens and law
enforcement in both countries, and this violence is
being fueled by what the federal Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF) describes as an
"iron river of guns"-the flow of thousands of illegal
U.S. firearms into Mexico.
SJR 10 draws attention to this problem, and urges the
President and U.S. Congress to pursue a comprehensive
approach in combating this growing epidemic that
includes: enhanced collaboration among local, state,
and federal law enforcement agencies; the allocation
of a permanent federal funding source to sustain local
and state law enforcement operations; the redirection
of existing ATF, Immigration and Customs Enforcement,
and Customs and Border Protection resources towards
this effort; reenactment of a strong federal assault
weapons ban, along with a ban on high-capacity
ammunition magazines; stronger federal authority to
crack down on corrupt gun dealers; extending Brady
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criminal background checks to all gun sales, including
all sales at gun shows to prevent firearms
trafficking; and the maintenance of firearm purchase
records to help law enforcement track down armed
criminals and solve gun crimes.
2. Guns Trafficked from the U.S. Are Arming Organized Crime
Groups in Mexico
In June 2009, the U.S. Government Accountability Office found:
Available evidence indicates a large proportion of the
firearms fueling Mexican drug violence originated in
the United States, including a growing number of
increasingly lethal weapons. While it is impossible
to know how many firearms are illegally trafficked
into Mexico in a given year, around 87 percent of
firearms seized by Mexican authorities and traced over
the past 5 years originated in the United States,
according to data from ATF. Around 68 percent of
these firearms were manufactured in the United States,
and around 19 percent were manufactured in third
countries and imported into the United States before
being trafficked into Mexico. According to U.S. and
Mexican government officials, these firearms have been
increasingly more powerful and lethal in recent years.
For example, many of these firearms are high-caliber
and high-powered, such as AK and AR-15 type
semiautomatic rifles. Many of these firearms come
from gun shops and gun shows in Southwest border
states such as Texas, California, and Arizona,
according to ATF officials and trace data. U.S. and
Mexican government and law enforcement officials
stated most guns trafficked to Mexico are intended to
support operations of Mexican DTOs, which are also
responsible for trafficking arms to Mexico. (FIREARMS
TRAFFICKING - U.S. Efforts to Combat Arms Trafficking
to Mexico Face Planning and Coordination Challenges,
United States Government Accountability Office, Report
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to Congressional Requesters, No. 09-709, June 2009.)
3. Is More U.S. Government Effort Needed?
According to a paper released by the Mexico Institute at the
Woodrow Wilson Center in April of 2011:
Despite an increase in brutal Ýorganized crime
groups'] tactics and some new efforts by the U.S. and
Mexican government, both governments have either moved
slowly or failed to act on key previously identified
challenges to more effectively address U.S. firearms
trafficking to Mexico. The Mexican government, for
example, has yet to significantly improve the quality,
quantity, and timeliness of its firearm trace requests
to the United States, which are key to helping ATF
develop firearms trafficking trends and discover
individuals involved in such trafficking. While ATF
has some information on firearms recovered in Mexico,
a total of 69,808 firearms as of May 2010, ATF agents
say they can use only about eight percent of Mexico's
firearm trace requests to initiate investigations, in
part because many of the trace requests lack basic
identification data and were purchased in the United
States more than five years ago. The U.S. government
also faces substantial challenges, particularly in
identifying firearms traffickers and persuading U.S.
Attorneys to accept more criminal cases related to
firearms trafficking to Mexico. Perhaps the most
worrying from the Mexican government's point of view,
however, is ATF's Fast and Furious Operation based out
of Phoenix, Arizona, which reportedly allowed hundreds
of firearms to be sold to potentially known
traffickers as a way to build more attractive cases
for U.S. Attorneys and ATF did not notify Mexican
authorities. (Goodman, Update on U.S. Firearms
Trafficking to Mexico Report, Woodrow Wilson Center
for International Scholars, April 2011.)
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In an editorial dated June 26, 2011, the Washington Post
commented on ATF's Fast and Furious operation and the criticism
it has generated:
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Operation Fast and Furious was launched in 2009 and
was centered in the ATF's Phoenix office, where agents
surveilled straw purchases of AK-47 knockoffs and
other high-powered weapons known to be favorites of
the drug cartels. The agents did not try to seize the
weapons but instead watched as straw buyers made
repeated visits and passed firearms to third parties.
In January, the Justice Department indicted some 30
relatively low-level individuals on charges of gun
running and making straw purchases.
The ATF had hoped to move against higher-ups in the
chain of command, but the operation went awry when the
bureau lost track of 2,500 weapons, some of which have
now been traced to criminal activity south of the
border. Two such weapons were found in December at
the scene of the murder of a U.S. Border Patrol agent.
The Justice Department's Office of Inspector General
and Congress are investigating, understandably. The
probes could help to explain what went wrong and what
could or should have been done differently. But
Capitol Hill's intense interest in the ATF should not
stop there.
Lawmakers should give the ATF the tools it needs to
fight illegal gun trafficking. They should enact
stronger penalties for straw purchases and craft a
federal gun-smuggling statute; close the gun-show
loophole, which allows buyers under certain
circumstances to purchase weapons without a background
check; resuscitate the ban on assault weapons; and
give the ATF the authority to collect data on multiple
sales of long guns in border states. The Senate
should move quickly to confirm a director for the
long-leaderless bureau.
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We may never know whether the bureau would have
launched the Fast and Furious operation had it had
other, more effective tools at its disposal. Those
who would clobber the bureau for possible mistakes
should look in the mirror and accept some
responsibility for its failings. (How Congress can
empower the ATF, Washington Post Editorial Board, June
26, 2011
http://www.washingtonpost.com/opinions/2011/06/21/AGaGO
cmH_story.html)
4. Joint Resolution Urged
This joint resolution urges specifically:
? reenactment of a strong federal assault weapons ban,
along with a ban on high-capacity ammunition
magazines, adoption of the ATF's proposed rule to
require the reporting of rifle, including assault
rifle, purchases in southwestern border states,
magazines, stronger federal authority to crack down on
corrupt gun dealers, extending Brady criminal
background checks to all gun sales, including all
sales at gun shows to prevent firearms trafficking,
and the maintenance of firearm purchase records ?
SHOULD THIS JOINT RESOLUTION BE ADOPTED?
5. Argument in Support
The Council of Mexican Federations (COFEM) states:
COFEM is a non-profit organization which strives to
empower the Latino community in the areas surrounding
health, immigration, and education. COFEM is the
largest immigrant led organization in the U.S.
representing over 300 Hometown Associations (HTA).
SJR 10 (De León)
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COFEM represents the Latino community and is primarily
comprised of Mexican immigrants. COFEM members
represent individuals that are deeply family-oriented,
committed to making a difference in their local and
native communities, and seek to fulfill the American
dream.
Mexican drug organizations have been terrorizing
citizens and law enforcement on both sides of the US
and Mexico border and this violence is fueled by the
flow of illegal weapons across the two countries.
This growing epidemic has devastated tens of thousands
of families who have lost loved ones to gun violence.
Violence in Mexico has become the main topic of
discussion for many of our Hometown Associations.
As a neighboring state, California should take a
strong stand and support the ongoing efforts to combat
the traffickers of firearms. In addition to
strengthening the enforcement of the existing gun
control laws in our state, we urgently need change at
the federal level.
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