Gray Gun Stories

The New York Times

By Dave Kopel & Paul H. Blackman

June 9, 2003, 9:15 a.m., National Review Online (corrected version)

The Gray Lady of American newspapers is red with embarrassment caused by reporter Jayson Blair, who admitted that many of his stories involved invention or plagiarism. Some New York Times reporters have expressed concern that the exposure of so many bogus stories over such a long period of time from such a respected newspaper could cause readers of American newspapers to doubt the credibility of what they read. On gun-control issues, those doubts are well-merited; the Times' credibility when it comes to guns is about equal to that of the National Enquirer's reporting on celebrity romances: Some of it is true, a large part is false, and much of the rest is presented in a significantly misleading way.

Interestingly, the Times, and its lead reporter on gun issues, Fox Butterfield, were recently acquitted of libel in a case involving a story having nothing to do with guns, the Sam Sheppard murder case. According to the May 23 AP report, Butterfield and the Times won despite the jury's finding that the article he wrote was "not substantially true" and involved false and defamatory statements. His victory was based on a finding that there was "no malicious intent." Supporting the jury's finding that there was no malice was the Times' prompt publication of a correction, once the paper learned about the error in Butterfield's story.

Regarding firearms coverage, the case for actual malice and reckless disregard of the truth by the Times is much stronger.

In an Oct. 21, 2001, article observing that many people were thinking about gun policy in light of the 9/11 attacks, Butterfield concluded the piece: "Meanwhile, in Seattle, a sniper killed a federal prosecutor, Thomas C. Wales. The motive was not immediately clear, but investigators took note that Wales made many enemies as a strong gun-control advocate." Presumably, there were people who didn't like Wales because of gun-policy disagreements, but those people had won overwhelmingly at the ballot box, defeating a 1997 initiative that Wales had promoted. Sometimes federal prosecutors make mortal enemies by prosecuting real criminals.

It says a great deal about Butterfield's prejudices that he shoehorned the news about the murder of a federal prosecutor into a story about gun policy, and that Butterfield used an anonymous quote to insinuate that Second Amendment activists were the prime suspects.

Butterfield's frequent errors on simple gun-related issues belie the Times' claim to be the "newspaper of record." On April 9, 1997, in an article touting a gun-control report released by then-representative Charles Schumer, Butterfield wrote about "Florida, which has no restrictions on the purchase of handguns beyond the five-day waiting period mandated by Federal law . . ." This sentence was triply wrong. First, the Florida legislature adopted an instant check system for the sale of handguns and long guns, starting in 1989. (Florida Statutes sect. 790.065.)

Second, in 1990 the people of Florida amended their state constitution's right-to-arms provision in order to require a three-day waiting period for handgun purchases. (Florida Constitution, Art. I, § 8, clauses (b)-(d); and Florida Statutes sect. 790.0655.)

Third, because Florida already had a functioning background-check system for handgun purchases, the Brady five-day waiting period never applied there.

The nadir of Butterfield's solo antigun lobbying under the guise of news reporting was his article "Guns: The Law as Selling Tool" (Aug. 13, 2000). The article was a litany of false, misleading, or incomplete assertions about federal gun laws and federal gun prosecution. Butterfield told readers that the Bureau of Alcohol, Tobacco and Firearms "is allowed to inspect a dealer's records only once a year." Actually, BATF can inspect dealer records as often as it wishes, when in conjunction with a criminal investigation of the dealer or of anyone else, or of a gun used in a crime. (18 U.S. Code sect. 923(g)(1)(B).) The one-per-year limit is only for investigations for no reason.

The Brady Act "requires background checks on handgun buyers," Butterfield wrote. This was true from 1994 through early 1999. By the time Butterfield wrote his article in August 2000, the Brady check applied to rifles and shotguns, not just handguns. According to Butterfield, the Bureau "cannot send in undercover agents posing as felons to buy guns from a gun store." Not so: There is no law against BATF doing so. Typically, however, BATF uses undercovers who are actually convicted felons. This makes it easier to prosecute the gun dealer for selling a gun to an illegal person. The federal courts are split on whether it's a crime for a dealer to sell a gun to a person whom the dealer thinks is an illegal buyer, but who is actually a legal buyer. Contrast United States v. Plyman (551 F.2d 965 [5th Circuit, 1977]), which argued that it is not a crime to sell to a legal, in-state buyer who falsely claimed to be an illegal, out-of-state buyer, with United Colichhio (470 F.2d 977 [4th Circuit, 1972]), which found that such a sale is a crime.

Butterfield wrote that BATF "lacks the authority to regulate sales by individuals at gun shows or elsewhere." It's true that a person who occasionally sells guns (e.g., someone who sells an old rifle to a friend at work) is not required to comply with BATF's paperwork and tax requirements. But any person who sells a gun in violation of any federal law (such as by transferring a gun to a convicted felon) can be prosecuted by BATF.

According Butterfield, "penalties for gun crimes are light." Well, selling a single handgun to person who is not a resident of the seller's state is a five-year federal felony. (18 U.S. Code 922(b)(3)) Selling a single firearm to a "prohibited person" (such as a convicted felon) is a ten year federal felony. (18 U.S. Code 922(d) & 924(a)(2) ) Each gun illegally sold is a separate offense, so the illegal sale of a dozen guns brings a de facto penalty of up to life in prison.

Butterfield contrasted the "light" gun sentences with "the harsh mandatory penalties for drug crimes, often 10 to 25 years in prison." Well, if a person with two felony convictions merely possesses a gun, that's a ten-year mandatory sentence. If a person "uses" or "carries" a gun in a violent or drug crime (use can include merely displaying the gun, and "carries" can include having the gun in a car trunk), then the person gets a mandatory five extra years in prison; if the gun is a machine gun, the mandatory sentence is 30 extra years. (18 U.S. Code 924 (c))

If a person with three prior violent felony or serious drug offenses (broadly defined) even holds a gun in his hands, his possessory offense requires a 15-year mandatory minimum. (18 U.S. Code 924 (e))

Instead of telling readers what the gun penalties actually are, Butterfield pointed to two Georgia gunrunners who received light sentences in 1998; one got 18 months and the other half a year of home detention. Without more details, it's impossible to pass comment on the sentences; we don't know if the light sentences were because the defendants made a deal to provide testimony against bigger criminals. But a single case can't single-handedly support a claim that crimes involving decades of potential prison time have "light" punishments.

The news peg for Butterfield's story was a federal district-court case in which a judge threw out a prosecution of gun-store owners from Birmingham, Alabama. Butterfield told readers that the case "was a classic example of straw purchasing, using someone to buy a gun for a person prohibited from doing so."

The court's decision, though, directly contradicted Butterfield's report. In United Dollar (25 F.Supp.2d 1320), Judge U. W. Clemon explained that the brother and sister defendants had sold guns out of their store from 1990 to 1994. The judge noted that the law against straw purchases is based on the 1968 federal statute making it unlawful "for any person in connection with the acquisition of a firearm from a … licensed dealer" to "knowingly make any false or fictitious oral or written statement … intended or likely to deceive such … dealer … with respect to any fact material to the lawfulness of the sale …" (18 U.S. Code 92(a)(6)). Thus, if John Jones cannot lawfully buy a gun (e.g., he is a convicted felon), and if Sam Straw (who has a clean record) buys a gun from a gun store for the purpose of giving the gun to Jones, then Sam Straw has committed a "straw purchase" and can be sent to federal prison. If the licensed firearms dealer is complicit in the straw purchase, then the dealer is also guilty of a crime.

In 1980, the BATF published written guidelines for firearms dealers, detailing the meaning of "Straw Man Transaction." The BATF explained that it was all right for one person to purchase a gun on behalf of a second person, "as long as the ultimate recipient is not prohibited from receiving or possessing a firearm." In 1984 and 1988, BATF published similar guidelines.

In 1995, BATF changed the guidance, and instructed dealers that a straw purchase also includes sales in which both the initial buyer and the ultimate recipient could legally purchase and possess firearms.

The district court ruled that because the gun sales by Mr. and Ms. Dollar took place in 1994 and before, and because the initial purchasers and ultimate recipients were all legal buyers, the Dollars could not be guilty of assisting straw purchases. The court explained that "all of the alleged 'straw purchasers' as well as the alleged actual purchasers were eligible to purchase firearms."

Butterfield's description of the case as "a classic example of straw purchasing, using someone to buy a gun for a person prohibited from doing so" was completely contrary to the judge's written opinion.

Butterfield wrote that there were "witnesses willing to testify" against the Dollars at trial. Butterfield's August 2000 story made it seem that the case had been dismissed prior to trial, despite "witnesses willing to testify." Actually, a full trial took place in September 1998. The case was dismissed after the government presented its evidence, and after witnesses had testified. Butterfield's August 2000 story never mentioned the dates of the case, even though the case was the main "news" item in the story.

Butterfield summarized the witnesses' case against the Dollars, but Butterfield did not tell his readers that the court found that BATF had violated its explicit legal duty, under the Brady and Giglio decisions by the U.S. Supreme Court, to disclose certain material facts about the witnesses. Namely, some of the witnesses "had given statements to ATF agents inconsistent with their anticipated trial testimony." Some of this information had been illegally withheld for months, causing the trial to be postponed; other information was never disclosed. According to the judge, the prosecutors illegally chose "to withhold materials which clearly and directly contradicted the direct testimony of several of its most important witnesses."

Quoting the Supreme Court, the district court suggested that the prosecutors had engaged in "deliberate deception of a court and jurors by the presentation of known false evidence." Butterfield's article contained not a single word about the enormous credibility problems of the prosecution witnesses, or the judge's findings of extreme and outrageous prosecutorial misconduct and deceit.

The premise of Butterfield's article, as stated in the early paragraphs, was to disprove candidate George Bush's claim that federal gun laws were adequate and just needed better enforcement. Butterfield proved his thesis with descriptions of existing gun laws, and those descriptions were wrong in almost every respect; and every one of the errors tilted in the direction of greatly understating the scope and severity of federal gun laws.

Butterfield was irresponsible in the extreme in his mischaracterization of the strength of the case against the Dollars. His one-sided and highly selective presentation of very incomplete evidence was the journalistic equivalent of the prosecutorial misconduct that the trial judge had denounced.

Butterfield is not the only Times author who is casual with facts where gun control is concerned. Thomas Friedman claimed (April 3, 1996) that Larry Pratt, the head of Gun Owners of America, has "spoken at rallies held by white supremacist" leaders. This is absolutely false. Indeed, Pratt is so far from being a "white supremacist" ally that he is married to a Panamanian and speaks Spanish at home.

In May 1995, Friedman wrote that Republican presidential candidates want "to repeal the ban on assault weapons so that paranoid private militias trying to subvert the Constitution will be much better armed to resist the police, FBI and the Bureau of Alcohol, Tobacco and Firearms the next time they try to blow up a federal building." Friedman's column thus presumed that "militias" were involved in the Oklahoma City bombing.

As the facts developed, Timothy McVeigh's entire connection to the militia movement was, first, that he and Terry Nichols attended two meetings of the Militia of Michigan. The pair were told to leave because they were talking about violence. Second, Mark Koernke, a short-wave radio personality with a mail-order business selling militia gear, was seen with someone who looks a great deal like McVeigh. That's all the evidence that ever was produced showing any contact at all between McVeigh and the militias. That evidence obviously does not suggest that anyone in a militia encouraged McVeigh to do anything illegal, let alone assisted one of the most vicious mass murders in American history.

Friedman, writing before even this slender body of evidence had been brought forth, recklessly and maliciously pinned the Oklahoma City bombing on a group of many thousands of Americans who were completely innocent.

Friedman displayed similar bigotry with his April 1999 claim that "Assault weapons have only one purpose, and that is to kill other human beings." This is nonsense. A 1991 Congressional Research Study of one of the most notorious "assault weapons," the Navegar Tec-9 pistol, found that only 2 percent of the Tec-9 guns had ever been traced in connection with a criminal investigation of any sort.

Of course, not all gun crimes result in a gun trace, but before Navegar went out of business, it sold many tens of thousands of guns. In 1998, for example, the company manufactured 15,565 pistols, according to BATF reports.

Quite obviously, the overwhelming number of Navegar buyers didn't buy the gun in order "to kill human beings." Even if Navegar were the only murder weapon ever used in the United States, the number of Navegar guns sold greatly exceeds the number of gun murders. Hence, there must be at least some (indeed, an overwhelming number) of "assault weapon" buyers who purchase their guns for reasons other than murder.

Among those purchasers are the competitors in the most prestigious American target shooting competitions, the annual National Matches at Camp Perry, Ohio, under the auspices of the congressionally created Civilian Marksmanship Program. Many so-called "assault weapons" (such as Colt and Ruger rifles) are used at these matches.

Friedman is a very skilled reporter who easily could have learned about the Camp Perry matches if he had bothered to conduct a little bit of research. But instead, he followed the fashion of Times gun reporters, which was to "report" as fact the crude preconceptions of Manhattanites who know almost nothing about American gun culture.

Another Times columnist, Maureen Dowd, claimed that Dick Cheney, when he was a congressman from Wyoming, defended "plastic guns that could slip through airport metal detectors." Actually, there's never been an actual plastic gun, let alone a plastic gun which could slip through metal detectors.

In a May 1998 column, Dowd opened by decrying the "sulfurous" and "icky name-calling" in Washington. She closed the column by calling the NRA "wicked." It says a lot about the bigoted atmosphere at the New York Times that neither Dowd nor an editor noticed the contradiction between a complaint about name-calling and calling the NRA "wicked."

The New York Times and the NRA member magazines such as The American Rifleman both cover the gun issue through strongly worded advocacy articles. Both the Times and the Rifleman have a huge bias in favor of relying on experts whose viewpoints are in line with their publisher's. Yet while the Times and the Rifleman are in some ways mirror images of gun-policy advocacy publications, there are two important differences: First, the Rifleman doesn't pretend to be unbiased; second, the Times has much lower standards of factual accuracy.

Back on Sept. 8, 1988, the New York Times' television reviewer, John J. O'Connor, praised David Frost for letting an antigun spokesman "present his case cogently and persuasively." Frost then "informed" the NRA's representative that his argument didn't really make sense, and cut him off. The Times concluded, "Occasionally, balance is beside the point." So is accuracy, at least for the Times.

— David B. Kopel and Paul H. Blackman are co-authors of No More Wacos: What's Wrong with Federal Law Enforcement, and How to Fix It. Kopel is a NRO contributing editor; Blackman is research coordinator of the National Rifle Association. Both are donors to the NRA.

More by Kopel on media bias in coverage of gun control.