This is my final say on Fast and Furious.

I was late to the Fast and Furious story, like most folks never peering behind the news flashes that began in Dec 2010 when Officer Terry was shot, which grew into congressional investigations, which then took off on the same track all other investigations have taken when a Democrat is in the  White House, a dead end.

By typical Republican standards for sticktoitiveness and guts, Darrel Issa did himself proud, but still there are no indictments for what are at least 2000 separate criminal offenses, stacked like pancakes, plus a host of other offenses stemming from those original 2000, all of which may go unpunished.

Early on, criminal assessment took a back seat to the politics, for the people tasked by law to make those assessments didn’t. Instead they deflected and lied. So there it stands, in the eyes of the left, a public witch hunt of the poor beleaguered men (of color) running this government, or from the right, a chance to bring at least one, maybe more, corrupt high ranking officials to account for serious crimes of coverup.

With all due respect, no one seems to be speaking for the victims of these 2000 crimes. The federal indictments handed down cite the only victim of these crimes to be the US Code (i.e, the people) never mentioning, let alone naming, the 300 people killed by these weapons.  As I have been ranting about for a month, going after the real crimes and real justice for the victims is the best road to cast the light of truth on all the hidden perpetrators of these crimes.

Over three articles in 20 days, (I’m not so much plugging these as providing some background)… Treat Fast and Furious as a Crime, not a Political Event (June 22), Fast and Furious, Where are the Indictments? (June 25), then Fast and Spurious, and a Prosecution by Federal Co-Conspirators (July 8)….I more or less concluded that the focus has been on the wrong end of the hockey stick (or, corn cob, as my grandpappy used to say.)

Hell, folks, there have been lots of murders here, and God knows how many wounded citizens, cars and houses shot up, property damage in the millions (and that’s saying a lot for Mexico)  and we’re spending all this time trying to nail down a getaway driver to see if he was carrying incriminating plans in his hip pocket.

Where’s the outrage? (Present company excluded, for I know how active, and expert, most of the readers of David Codrea’s at WaronGuns.blogspot,com and and The Sipsey Street Irregulars. are.)

The folks who write over there are true experts, not only on Fast and Furious but a host of 2nd Amendment gun issues. Bookmark them.

But my coverage of F&F is more narrow. I’m not a foot-noting scholar, but a boots-on-the-ground analyst. My mission is to find out 1) is there a crime, 2) who committed it, 3) who helped the responsible parties evade justice, and 4) is there still a path to find justice?

While I know the scholars among you would love to have full access to all the emails, letters, memos, phone records, etc, that passed between the originators, planners, advisers and executors of the Fast and Furious project (there would be a helluva good book in it, just ask Mark Lane), I don’t need that much. In fact I already know the answer to 1) above.

There most definitely was a crime. In fact, 2000 of them, in about 90 separate incidences. (Prosecutors would call these “counts”.) You don’t have to have all the “i’s” dotted and “t’s” crossed to know this, and to get on with the basic indictments (with others to follow). In fact, I guarantee those missing documents will just suddenly appear once each and every identified perpetrator knows that a prima facie case has already been made on one felony charge (x 2000 counts). And Darrel Issa has all the evidence to bring these charges.

The Crime

So that even a kid from OccupyWallStreet can understand this, and who is probably revulsed at even the mention of guns anyway, I’ll analogize this with schtick. Imagine Gallagher (the comedian) going to the roof of a 10-story hotel building in downtown Omaha, carrying a 10-pound watermelon.

Gallagher leans over the ledge, looks at the crowded sidewalk below, then raises the watermelon over his head, and lets it drop. (I’ve done this several times before with water balloons, so I know the rush.)

Question for lawyers and non-lawyers alike: Was a crime committed, and if so, when?

Answer: Yes, a crime was definitely committed and it occurred at the moment Gallagher let that watermelon slip from his fingers. His intent to injury didn’t matter, only his intent to drop it. That is where the first crime in Fast and Furious was committed.

That crime goes by several names, and is common in every state’s criminal statutes. It’s most commonly referred to as “wanton or reckless endangerment” and is based on the common law notion of placing innocent civilians and property in danger by a careless act.

So, if Gallagher’s watermelon merely hits the sidewalk, missing all the passers-by, it’s still reckless endangerment. And if it’s midnight and virtually no one is on the sidewalk, it’s still a crime. In most states this is a low level felony or high misdemeanor….but only if no one is injured.

If there is injury or damage, the crime is elevated to a more serious offense. If Gallagher’s watermelon hits someone on the shoulder, or splatters on the street, an exploding seed lodging in someone’s eye, a more serious crime has occurred. The same is true if the watermelon put a huge dent in the top of someone’s new Hyundai parked on the street.

You can see where civil penalties also are involved.

Finally, the level of criminality rises considerably if someone is killed. Then we usually see a manslaughter or negligent homicide charge (effect) attached to the wanton endangerment charge (cause), which usually remains as a lesser included offense.

Now in all these higher crimes, one must be able to prove both cause and effect, but since the basic crime requires only the intent to drop the watermelon, the intention to harm is not an element of proof (only the indifference to it), and no cause and effect need be proved.

(You can see why this lowest criminal charge is so important, for it can be a great investigative tool.)

Since people rarely go the top of a hotel and throw over watermelons, where you most often see these charges arise are in the misuse of a vehicle or getting drunk and taking target practice in the back yard of a suburb.  But also, you see these charges levied (often out of public sight) when police officers go beyond guidelines in high speed chases, or improperly discharge their firearms. Even if they made a good shoot they still may be disciplined, even charged. for one wayward shot can wind them up in the pokey. Only recently Florida cops shot and killed an innocent man they mistook for a fugitive. Accidental? Sure. But they will be investigated and probably taken before the grand jury for having intentionally discharged their firearms (cause) which inflicted death (effect). Look for indictments here, even though the victim brandished a pistol.

So what about the feds?

So, now we understand what happens when a citizen or state law enforcement guy recklessly launches that dangerous watermelon. The crimes I have described are all state crimes and the ATF, FBI, DEA and District Attorney are not involved. No federal crime or jurisdiction.

So what happens when a federal officer, instead of Gallagher or a police officer, drops that watermelon from high atop the hotel?

Interesting you should ask, he said.

You see, it should be no different in the eyes of the state of Nebraska. They cuff him. Only most often these days, they don’t, if the agents were acting under the color of law. Nebraska assumes the feds will handle their own, only as we’ve seen over the past 20 years or so, instead of punishments we’re seeing federal agents being reassigned, or laterally moved in the agency. Janet Reno referred to this as fixing “process.” (I’m getting ready to describe a federal loop hole.)

Often the feds can’t charge their own people criminally, for while the US Code is filled with incidences where it’s a federal offense to assault a federal officer, I can find nothing where it is unlawful for a federal officer to (unintentionally) assault a citizen, while acting under the color of his badge. You know, “oops.” Cities and states do this routinely; the feds, not so often.

For the hell of it, let’s say this is a loop hole that the feds have used in the Fast and Furious case, that while a gun store owner can’t legally throw a 10 lb watermelon off the top of a building, he can (even must) if a federal officer tells him to. And if someone gets killed, well, than it ain’t nobody’s fault.

If this is indeed a loop hole Congress needs to close it. But still, if a federal officers runs down a citizen in a high speed chase, or accidentally-on-purpose invades the wrong house, or shoots the wrong innocent civilian, can he be made to answer to the state criminally?

Short answer, yes, but as we know over the past several years, it requires some balls for the states to challenge federal suzerainty, although in these case, including Fast and Furious, I don’t think any really federal suzerainty exists. Carpe federalus.

About the lower crime that forms the basis for criminality in Fast and Furious, as I have just described, letting go of that watermelon, the state may have sole jurisdiction, making inaction in the Fast and Furious case downright convenient for federal prosecutors.

Another question of jurisdiction, which involves the loss of life and property to Mexican citizens from guns walking across the border, who can claim criminal (and civil) jurisdiction? Feds or state? or both? In this case, imagine Gallagher building a catapult in El Paso and then launching watermelons over the fence and cement ditch into Juarez, landing near the fair Carlotta, my first love, who I hitchhiked 2000 miles to meet when I was 19.

Ordinarily the feds would knock people down to indict a catapulting Gallagher, or at least hold him for extradition. But so could the state, I argue.

Civil charges are dicey of course where direct and proximate cause cannot be proved, but from Mexico, unlike Agent Terry’s case, a direct chain of custody can be made back to the store and buyer but also to the agent(s) in charge of allowing that to happen.

Clearly such claims for damage and injury can be brought (only, I’m told) in state court, not only against agents and legal accomplices, but also the gun dealers and buyers.

What about the DOJ lawyers?

As I previously mentioned, the local DA’s office would have detailed all the things ATF officers would have to do to protect public property and life in their planned watermelon drop, unless, they were instructed from above not to do so…or were incredibly incompetent. For example, in the normal course of a routine tossing a watermelon from a high building operation, the DA would have instructed the ATF  to construct a huge catch-net at about the second or third story….which makes you wonder, why toss the damned watermelon in the first place? (I’m begging a question here.)

Clearly, we know no such catch-net existed for almost none of the watermelons (guns) were netted. So then, the ATF officers were either 1) criminally neglectful in not following the guidelines of the DA’s office (this is an offense that can be found in the US Code) or the ATF and DA’s office were acting in concert, making them equally complicit in the damage the watermelons caused.

Now, I’m no dummy, I know this is where the central focus of the senate and house investigations have been, to determine if the DOJ was a participating partner in these 2000 watermelons being dropped on innocent people in Mexico.

But by clumsy and inartful dodgery, protected by an order of executive privilege, congressional investigators are not able to piece that veil of secrecy which clearly is to cover up a crime, 2000 of them to be exact. Solution: Indict the known ATF perps on state reckless endangerment charges and that information will come gushing forth.

What I have related here is a non-partisan examination of the first tier of crimes that were committed in Fast and Furious. So far I haven’t been political, but I think Congress needs to address the loophole that allows federal law enforcement to exonerate itself from crimes simply by collaborating with the only federal agency capable of indicting them, and by absolving actors (the gun dealers) of a crime under the quaint and bogus theory that in doing so, they are also absolving the crime itself, and that all the predictable bad things that might occur afterwards, is merely bad luck instead.

The government has done a terrible, terrible thing here. It has caused unimagined pain and sorrow, and were it any others but itself that caused it, it would have pursued them with gusto, indictments and prosecutions then slept the sleep of saints once it had put the bad guys away.

Instead, it has become one of them.

My own advice is to pursue state charges right away. Darrel Issa has the minimum evidence required, and if Arizona (and other states?) don’t have it, he should share it. Something tells me Texas and Arizona alike would like enjoy a reckoning with some of their persecutors in Washington.

If not, signal all the known perps (again, Issa can make a list), especially those beyond the file-burning apparatus in DOJ, that this case will survive the administration, and there will be a reckoning.

For reasons I’ve mentioned before, this really is much much bigger than than making it right with the Terry and Zapata family, and the hundreds of families in Mexico. It’s for setting aright a freight train that has lost control.