Definition of 'use of firearm' should extend to guns traded for drugs

U of Ideas of General Interest ó August 1999
University of Illinois at Urbana-Champaign

Contact: Mark Reutter, Business & Law Editor (217) 333-0568; [email protected]

GUNS
Definition of ëuse of firearmí should extend to guns traded for drugs

CHAMPAIGN, Ill. ó What does it mean to "use" a firearm? If the answer to the question seems simple enough, a surprising number of courts have had difficulty in interpreting a 1986 federal law that places special penalties on drug traffickers who "use" a firearm, according to a University of Illinois legal scholar.

"Even after the Supreme Court addressed the definition of ëuseí on two occasions, the federal courts still are divided regarding whether a gun traded for drugs constitutes ëuseí of a firearm under the statute for parties on both sides of the transaction," John K. Mehochko wrote in the latest issue of the University of Illinois Law Review.

Because the statute can add between five and 30 years to a drug-trafficking conviction, the determination of the wording has major implications in the sentencing and sometimes conviction of drug traffickers, Mehochko, an associate editor of the journal, noted. A difference of opinion by several circuit courts ñ together with unclear decisions by the Supreme Court ñ has resulted in decisions in which a gun used as an item of barter by a drug trafficker is considered different from a firearm used as a weapon.

The most important case was U.S. vs. Westmoreland, decided by the Seventh Circuit Court in 1997. The court overturned the conviction of Joseph "Smoke" Westmoreland, a member of the Undertaker Vice Lords, a Chicago street gang, who traded 11 bags of crack cocaine for two guns, on the grounds that his acceptance of the guns from an undercover agent was a passive act.

Mehochko criticized the decision on several points, most importantly that it flew in the face of common sense. "As most people know, the drug trade is rife with violence and murder, and the introduction of firearms into a drug transaction only magnifies the danger," he wrote. "Even looking past the inherent danger in transactions where guns are traded for drugs, the future danger of well-armed drug dealers who received the weapons as payment must be considered Ö The deterrent value of enhanced penalties for using firearms during and in relation to drug trafficking crimes is maintained by applying the sanction to those who trade guns for drugs as well as the more traditional use of a firearm as a weapon."

Part of the interpretative problems facing the courts stems from the legislation itself. The original law was part of the Gun Control Act of 1968, but amendments made in 1984 and 1986 broadened the law to address different types of firearms while extending the penalties to drug-trafficking crimes.

"Each of the amendments was passed quickly, with little discussion and without significant hearings, reports or debates," Mehochko wrote. Nevertheless, a broad interpretation of "use of firearms" is warranted in light of the stated goals of Congress, he concluded.

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