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Issue Brief #3592 on Legal Issues

May 7, 2012

The FOCUS Act and Federal Law Enforcement


An article by Jon Adler at the Police: The Law Enforcement Magazine Website,[1] written on behalf of the Federal Law Enforcement Officers Association (FLEOA), is quite critical of the recently introduced Freedom from Over-Criminalization and Unjust Seizures (FOCUS) Act of 2012. The thrust of the article is that the FOCUS Act would put federal officers and agents at risk by taking away their right to carry firearms in the course of their criminal law enforcement duties. That claim, in short, is a canard. Because The Heritage Foundation published a Legal Memorandum, entitled “Defanging the Lacey Act: The Freedom from Over-Criminalization and Unjust Seizures Act of 2012,”[2] commending Senator Rand Paul (R–KY) and Representative Paul Broun (R–GA) for introducing this bill, it seems appropriate for Heritage to comment on this article.[3]

Let’s start with its title and first sentence. The title is “Bill Would Strip Fed Wildlife Agents of Firearms.” The article claims that the FOCUS Act is “a dangerous over-reach and over-reaction” to the Gibson Guitar case and is “totally unfocused” (pun likely intended). The article maintains that the FOCUS Act would deprive U.S. Fish and Wildlife Service (FWS) and National Oceanic and Atmospheric Administration (NOAA) officers and agents of the right “to carry firearms” when enforcing the criminal law, even when they “execute warrants.”

That claim is grossly misleading. The FOCUS Act would decriminalize the Lacey Act; that is, the bill would eliminate the provisions that allow the law to be investigated and enforced criminally. If a violation of the Lacey Act occurred, it no longer would be a crime, which means that there would be no justification for federal agents to execute warrants or investigate such cases—and certainly no justification for Justice Department lawyers to bring criminal charges against a supposed offender—and therefore no risk of harm to FWS or NOAA officers and agents. They still can carry their firearms when they investigate other crimes, but there would be no need to investigate a violation of the Lacey Act, because no such violation would be a federal offense. No criminal violation, no criminal investigation, no risk of harm.

The remainder of the article is a hodgepodge of other complaints. (Ironically, those other complaints seem implicitly to assume that there will be no criminal enforcement of the Lacey Act rather than that FWS or NOAA officers and agents will be armed with only harsh language when they enforce that law.) For example, the article says that federal law enforcement is necessary to help the states enforce their own laws for manpower and jurisdictional reasons. No proof is offered why that is true. In my experience, all state and local law enforcement members help each other.

In any event, federal law enforcement has abused its investigative and prosecutorial discretion in connection with this law, and that abuse should be halted. The Gibson Guitar case is but one example. The Abner Schoenwetter case is another.[4] Schoenwetter spent five-plus years in federal prison for “heinous” crimes such as importing lobsters into the United States that were too small to be taken under a void Honduran law and that should have been packed in boxes rather than in clear plastic bags. That investigation and prosecution were a travesty of justice. If federal law enforcement personnel act like teenagers and abuse their freedom to drive the family car—and history proves that they have done so—then Congress should take away the keys.

The next argument is that repealing the criminal provisions of the Lacey Act would make it difficult to enforce the Endangered Species and Marine Mammal Protection Acts, as well as the Convention on the International Trade of Endangered Species, “because many times”—NB: not all—“violations of th[ose] law[s] and this treaty are enforced under the Lacey Act.”

That argument gets the matter backwards. If there is no sufficient reason to enforce the Lacey Act via the criminal law, then the criminal provisions should go. The merits of criminally enforcing those other laws should stand or fall on their own. If those other laws also are not worth enforcing criminally, then they, too, should be decriminalized. It is silly to keep one harmful criminal law just to keep others of the same ilk.

The article argues that the Lacey Act is a necessary means for safeguarding public health against “importation of invasive plants and injurious species of wildlife.” By definition, importation involves crossing our border, so civil inspection and seizure tools should be adequate to the job.

Finally, the article argues that eliminating the criminal provisions of the Lacey Act would “impact jobs and the economy by providing an unfair competitive edge to unscrupulous seafood dealers and threatening the livelihoods of the tourism industry in Florida and other southeastern states.” The article does not say whether the states have laws that could be used to deal with “unscrupulous seafood dealers,” and they probably do, since every state prohibits fraud.

As for “threatening the livelihoods of the tourism industry in Florida and other southeastern states,” spare me; I can’t believe that this is a serious point. Florida has sun, sand, surf, nightclubs, jai alai, the Glades, Disneyworld, three teams in the NFL, two in Major League Baseball, and a host of other attractions. Decriminalizing the Lacey Act won’t deter college students from heading to Ft. Lauderdale on Spring Break.

But this argument does get us somewhere, just not where the article wants to go. The implicit common denominator for this collection of arguments is this: By taking away the criminal provisions of the Lacey Act, FWS and NOAA agents will have less to do—which means that, over time, there could be fewer such agents.

Ask Abner Schoenwetter whether that is such a bad idea.

Paul J. Larkin Jr. is Senior Legal Fellow and Manager of the Overcriminalization Project in the Center for Legal & Judicial Studies at The Heritage Foundation.

Show references in this report

[2]Paul J. Larkin, Jr., Defanging the Lacey Act: The Freedom from Over-Criminalization and Unjust Seizures Act of 2012, Heritage Foundation Legal Memorandum No. 78 (Mar. 16, 2012), available at http://www.heritage.org/research/reports/2012/03/defanging-the-lacey-act-the-freedom-from-over-criminalization-and-unjust-seizures-act-of-2012.

[3]In the interest of full disclosure, I should say that I was a Special Agent with the EPA Office of Criminal Enforcement, Forensics, and Training from 1998–2004. I believe that I was a member of FLEOA during that period, but I can’t remember.

[4] See Heritage Foundation, Excessive Criminal Laws Trap Honest American Businessman, YouTube (Aug. 8, 2011), http://www.youtube.com/watch?v=pHvJ6ld_Mic&noredirect=1.

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