At first glance, that doesn’t appear to be the case.
Three-and-a-half years after being implemented, not one single person in Philadelphia has been prosecuted under the lost/stolen ordinance. In fact, no one in the entire state has been prosecuted under similar laws. Of course, that’s primarily because of the questions surrounding the legitimacy of the ordinances and the reticence to send a test case up the legal chain and watch a court strike down the law entirely. In fact, after Nutter signed the law, then-District Attorney Lynne Abraham stated that she would not enforce the law because it was unconstitutional.
A handful of other states—including New York, New Jersey, Ohio and Massachusetts—have mandatory state lost/stolen laws, so there are no concerns about pre-emption there, yet proponents of the laws cite only two cases in the entire country in which someone’s been prosecuted under lost/stolen (both occurred in Cleveland, once in 1996 and the other in 2001).
The problem is that it remains exceptionally difficult to prove because even a mildly savvy straw purchaser can still easily wiggle out of any interrogation by claiming they didn’t know the weapon was lost or stolen.
“They got smarter,” laments PPD Capt. Fran Healy, special advisor to Commissioner Charles Ramsey. “Instead of saying, ‘I lost it two years ago,’ they’re saying, ‘Oh, I thought it was in my house ...’”
Another issue: To date, no academic or law-enforcement studies exist that demonstrate the impact of lost/stolen laws on straw purchases. “I don’t know anybody who has studied that,” confirms Daniel Webster, co-director of the Johns Hopkins Center for Gun Policy and Research.
Add to that the fact that the Pennsylvania Uniform Firearms Act already provides serious penalties for straw purchasers. According to the act, anyone who knowingly sells or otherwise transfers a firearm to someone ineligible to possess a firearm commits a third-degree felony. Straws can be charged with illegal transfer of firearms, and get up to seven years in jail. If that’s not going to deter a would-be straw purchaser, why would the possibility of violating a Philadelphia code ordinance—an arrestable offense, but in the grand scheme of things equivalent to only a summary offense—make a difference?
According to several law-enforcement officials, there are a couple of compelling reasons.
The first is the idea that some not-so-bright gun traffickers think that they can outsmart the system by preemptively reporting firearms as lost or stolen to steer attention away from their illicit activities. “Well, guess what? You do that two or three times and your local law enforcement are gonna get the picture of who you are and what you’re doing,” says Healy, saying that the red flag spurs police to open an investigation. “I can see losing one gun in a year, things happen. But four or five or more? Are they falling out of your pocket? That’s one of the benefits of the law—I’ll be able to identify somebody who’s trying to play cute.”
The second reason—says one high-ranking Philadelphia law-enforcement official with extensive knowledge of the investigation and prosecution of straw purchasers, who spoke to PW on condition of anonymity—is that in practice, the ordinance is employed more often as a leveraging tool to get a confession from the straw, helping to build a case for the third-degree felony charge. Perhaps they’ve already caught a perp with the firearm and want to shut down the source. Or they need information about who the straw gave the gun to, particularly if the gun in question was recovered at a crime scene, such as a homicide, and there are no suspects.
The source explains that that investigative approach has to do with who the straw purchasers mostly are. Typically, they’re a girlfriend—or sometimes a family member—of the felon, and they’ve been sweet-talked, intimidated or outright threatened to make the purchase. Often, they’re addicts who trade guns for drugs, according to the source. When investigators trace the gun back to them, they’ll give the “It was stolen months ago” line. Without the ordinance, says the source, investigators couldn’t do much. But with the ordinance, law enforcement can threaten an immediate arrest for failure to report the gun stolen. It’s a means to flip a suspect, to get them to tell the truth.
“By their nature they’re all first-time offenders, because otherwise they couldn’t buy a gun,” the source says. “If this was a hardened criminal they’d say, ‘Fuck you, I’ll plead guilty [to the lost/stolen ordinance] and be done with it. But to a person that’s never been arrested or convicted before, never seen the inside of a jail, and maybe been pressured into this transaction in the first place, we can say, ‘Hey, we got you, you lied.’ They’re scared. And sometimes that’s when they’ll admit what they did.”
Reading Police Chief William Heim, one of the state’s most outspoken law-enforcement proponents of the lost/stolen ordinances, confirms the tactic.
“Even if we don’t wind up charging someone with the ordinance, a lot of times just having the ability to talk to someone about them possibly being charged can yield information that might lead to a prosecution down the line,” Heim says.
“Sometimes you detain somebody on a lesser crime that we can prove but we know they committed a more heinous crime but we can’t get the probable cause to go to the next level,” he continues. “If you can get them talking ... we solve more crimes from people talking than we do from physical evidence.”
Law enforcement insists it works. According to numbers provided by the state Attorney General’s Office, as of the last week in February the Philadelphia Gun Violence Task Force—a team of detectives and prosecutors established in December 2006 to go after straw purchasers and other gun traffickers—have opened 2,099 investigations, seized 1,521 illegally owned guns, made 677 arrests, and have an annual conviction rate consistently over 90 percent (the conviction rate on illegal transfer or illegal possession of firearms was 95 percent in 2011).
Still, no law-enforcement officials who spoke with PW could cite a single case in which the use of the lost/stolen ordinance as an investigative tool led to a straw purchaser being convicted on an illegal transfer of firearms charge.
Saying he doesn’t want to give away “too many investigative tricks of the trade,” Heim notes there’s no central database with that data set, or any formal studies, it’s just a matter of taking law enforcement’s word for it.
“These ordinances are just a couple of years old so you’d have to give it some time until you can see the proper analysis,” says Heim. “But certainly, if you don’t try this kind of thing and think outside of the box, you’re not gonna get any changes [in gun crime]. What’s the harm?”
But that’s not good enough for Stolfer.
PW's Summer Guide 2015