The Journey of a Gun
Kevin Brown's .22 handgun had its own strange odyssey – one of a million more like it
By Jordan Smith, Fri., Oct. 5, 2007
Late Thursday night, May 31, just two days before he died, Kevin Alexander Brown got a phone call from his friend Wesley Smith. Smith, who wanted information about an Eastside drug dealer known as "Icy Mike," was calling on behalf of another young man, Austin Ayers. Ayers had told Smith that earlier that evening, he and two of his friends, Theron Fisk and Annice Cannon, had been scammed by Icy Mike in a drug deal. Through an intermediary, Ayers had forked over $1,100 for an ounce of speed and in return got a plastic bag full of sugar. "We all got pissed and started talking about finding who'd ripped us off," he later told police. The group drove around the Eastside for a while looking for Icy Mike, then headed to a hotel near I-35 and Oltorf, where Smith and another group of friends were hanging out, to see if Smith could help. "Wes [Smith] said that he knew a guy who lives on the Eastside who knows everyone and that he could call him and ask if he knew the dude who ripped us off," Ayers wrote in his affidavit for investigators. "Wes called ... Black [as Kevin Brown was known to his friends] and asked him about the [dealer]. Black said that for $100 or something of value, he would tell us, because we weren't getting the information for free." Having already blown $1,100 on sugar, the group didn't have any cash. But they did still have something of value. That was a gun – specifically, a chrome, pocket-sized, .22-caliber Jennings Firearms Inc. pistol.
As it happened, the gun did not in fact belong to Ayers, Fisk, or Cannon, and it wasn't really theirs to give away. It actually belonged to another man, Michael Lane, whose mother had given him the pistol as a gift in 1989. Lane brought the gun with him when he moved to Austin from Uvalde, and he kept it until March, when his friend Fisk asked if he could borrow it to do some target shooting. Lane agreed and never saw the gun again. "I never really asked [Fisk] to bring the pistol back," he told police.
Instead, Fisk kept the pistol, which Cannon told police she found in the back seat of Fisk's Jeep on May 31, the night she rode with Fisk and Ayers, who were looking to buy some speed. Cannon picked up the pistol and "tucked the gun into the front of my pants, shoving it into my crotch area," she told police. According to Cannon's affidavit, the hotel meeting with Smith was tense, and she sounded nervous about the idea of exchanging the gun for information about the dealer. Nonetheless, Smith, Ayers, Fisk, and Cannon followed one another to a Jack in the Box restaurant on Airport Boulevard, not far from Chester's Club on 12th Street, to meet with Brown. After some last-minute wrangling, with Brown and Smith standing at the driver-side window of the Jeep, Cannon reluctantly handed the pistol to Smith, who turned it over to Brown.
Brown supplied the information on Icy Mike, but according to Ayers, Fisk, and Cannon, they didn't pursue it. Instead, after stopping briefly at an IHOP, the group split up and went their separate ways. And although Smith told police that Brown agreed to return the pistol if and when Lane or someone else came up with $100 in exchange, that never happened.
Instead, the chrome .22 resurfaced just two nights later, in the early-morning hours of June 3. It was lying on the ground, roughly 30 feet from Kevin Brown's dead body in the courtyard of the apartment complex behind Chester's. Brown had fled from Austin Police Sgt. Michael Olsen, who had attempted to search him in the Chester's parking lot. Olsen had been told by club staff that Brown was carrying a handgun, and their brief scuffle began a chase that ended with Brown's death – from two gunshots to the back, fired by Olsen in the courtyard of a neighboring apartment complex.
If Brown hadn't answered Smith's call that Thursday night, if he hadn't agreed to supply information about Icy Mike, if he hadn't required a trade for that information, if Brown hadn't run away from Olsen when the officer approached him at Chester's, or if he simply hadn't carried the gun to the club that night, Brown might be alive today. But Smith's phone call set off a tragic chain of events that inexorably culminated in Brown's death. Whether Olsen's decision to shoot Brown as he fled, still tugging at his waistband, was in fact justified under Austin Police Department use-of-force policy, is a matter still under investigation by the department. (A Travis County grand jury no-billed Olsen in August, clearing him of any criminal responsibility for Brown's death.) But whatever happens to Olsen, it will not bring Brown back to life.
Still, Brown's possession of the pistol that night was illegal – he did not have a concealed-handgun license, and even if he had, carrying the gun on club property is a criminal violation. Moreover, exchanging the gun for information on Icy Mike – in legal terms, a transaction made in furtherance of an illegal drug deal – was itself a violation of state firearms law, if not also federal gun laws. Yet such transactions involving firearms, especially in connection with drug-related crimes, are common, say local and federal law-enforcement officers.
That also means that leading to and from the Brown shooting is another story: the tale of a gun, and of its journey from the legal firearms market, from friend to friend, and then to the black market, where it served as a catalyst for Brown's untimely demise. That story is also a stark, almost textbook illustration of the difficulty of enforcing the laws regulating the ownership and possession of handguns – as well as the virtually inevitable results.
A Free Market
Although the official sources interviewed for this story declined to comment specifically on the Brown case, they agree that the manner in which the Jennings .22 made its way from its original owner into the hands of Brown is not at all unique. A large number of firearms that are diverted to the "black market" (that is, according to the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), "any movement of firearms from the legal to the illegal marketplace through an illegal method or for an illegal purpose") and eventually implicated in criminal acts are also connected to the illegal drug trade. "That's pretty much where they all go," says Austin Police Detective T.J. Vineyard, one of just two detectives currently assigned to the department's Firearms Review Unit, dedicated to tracking and investigating firearm cases. "You learn that pretty fast in police work."
This transition happens in a variety of ways. There are guns that are stolen from their legal owners (in, say, a residential burglary) by drug users looking to trade them for dope, and there are guns that drug dealers carry to protect their stash. "A lot of times [users] are trading guns for drugs because the cash flow isn't there," says 19-year veteran ATF agent Franceska Perot, who works out of the agency's Houston office. "Not only are guns used for trading but also for the protection of the industry itself."
"A lot of that is the nature of the business," agrees Vineyard. "The bulk of guns we see are connected to dope, [or are recovered from] felons in possession that [previously] went to prison [on charges] related to dope."
In an average year, the APD seizes more than 1,000 firearms, under a variety of circumstances. There are firearms seized by police for "safekeeping" in connection with family-violence calls – weapons that haven't been used to harm anyone but are removed from a situation where that threat exists; there are weapons seized in the course of organized crime, robbery, or homicide cases (roughly half of Austin's murders involve a firearm); and there are the randomly "found" firearms collected by police. (Vineyard says he is shocked by the number of firearms people report simply as "lost.") But the majority of firearms seized by police are collected from people like Kevin Brown, who are apprehended "unlawfully carrying a weapon" (generally a class A misdemeanor, punishable by up to a year in jail), often during traffic stops or in connection with street-level drug-dealing or -possession cases. In 2005, APD made 530 arrests for unlawfully carrying a weapon; last year APD made 629 such arrests, and they're about on pace for that again this year.
These numbers may seem relatively modest in a city of 700,000 people, but to law-enforcement officers, they're significant: "Guns are used to commit crimes against persons," says APD Chief Art Acevedo. "And let's face it, when there's a firearm involved, there is always the risk of death or serious bodily injury." Police routinely structure their work around "strategic enforcement initiatives" – gang, drug, or driving-while-intoxicated enforcement units – and so it follows that police would contemplate a similar approach to removing guns from the streets and away from prohibited persons. Interestingly, that isn't always the case – not only in Austin but also in law-enforcement agencies across the country. Yet there is a growing body of research and compelling anecdotal evidence that suggests that making gun-law enforcement a top police priority also provides police a clear means to reducing all manner of violent crime – and importantly, suggests Vineyard, reducing drug-crime-related violence.
Getting Leverage
Twelve-year APD veteran Vineyard got interested in targeted firearms enforcement in the late Nineties after reading Los Angeles Police Chief William Bratton's book Turnaround, detailing Bratton's tenure as New York City Police commissioner. Of particular interest to Vineyard was Bratton's approach to gun-law enforcement as an important tool in reducing violent crime. Vineyard believed Bratton's approach should be modified and implemented at APD. Conceptually, the approach was simple: Put together a team of officers whose job it is to fully investigate every firearm-related arrest, no matter how seemingly insignificant. This means not only building a solid case against the suspect at hand but also being proactive, trying to get a line on other suspects and to ferret out the sources of diverted firearms.
This approach made sense to Vineyard, so in January 1999 he wrote a memo to his supervisors proposing that the APD create its own gun squad. As Bratton had done in New York, APD detectives would interview every individual arrested with a firearm and would use any "solid case" against a suspect as "leverage," Vineyard wrote. In essence, gun dicks would investigate weapons violations in the same way that narcos investigate drugs: "As narcotics [investigators do] with their cases, [a gun investigator] would try to build [confidential informants] and get bigger cases and more weapons." Investigators would track all seized weapons using the ATF's Firearms Trace System database to determine their origin and whether they were implicated in any other crimes, and APD firearms experts would load test-fire data into the National Integrated Ballistics Information Network. They would review every firearm-related case to ensure appropriate charges were filed, to decide whether those charges could be "enhanced," and to determine which cases should be referred to the ATF or the U.S. attorney's office for possible federal prosecution. The goal is to send the message that firearm enforcement is a priority at APD: "It should become the policy of the officers that if you commit an arrestable offense, and you are found to be in possession of any weapon," Vineyard wrote, "you will be arrested."
In the course of researching the feasibility of such an initiative, however, Vineyard discovered a host of problems with the department's approach to firearms enforcement – frankly, that there really wasn't any organized approach. In a second memo, addressed to then-Assistant Chief Mike McDonald, Vineyard identified four areas of concern: inaccurate statistics, "lack of investigation" for many gun cases, "cases filed improperly," and an absence of "proactive efforts for tracking down and seizing illegally possessed handguns." APD's firearms data was weak – differences in the way officers completed incident reports meant that determining the exact number of crimes involving firearms could only be accomplished by reviewing the text of individual reports. The numbers that were available weren't exactly encouraging – for example, Vineyard discovered that in 1998, police recovered only 20% of all pistols reported stolen.
In the absence of a dedicated team of gun detectives, the job of vetting cases and filing charges was essentially distributed throughout the department, to whomever made an arrest – to robbery detectives, for example, or narco officers. The problem there, Vineyard wrote, was that no one in particular was keeping an eye out for repeat gun-offenders, whose cases could be referred to the feds for prosecution, where criminal penalties are stiffer and without possibility of parole. Overall, in 1997 and 1998, Vineyard estimated that although police seized nearly 3,000 weapons, only about 2% of all firearm cases were actually referred to the feds for prosecution.
Under those circumstances, it was hard to determine the scope of the city's gun problem – whether offenses were clustered in specific areas and whether meaningful punishments were being pursued. "It seems that the installation of a strategy aimed at firearms with the express goal of reducing violent crime could serve several purposes at one time," Vineyard wrote to McDonald, on Jan. 28, 1999. "Instead of being viewed as just a new unit and new policy, this is something which could serve to inspire officers and comfort citizens. Instead of just fighting crime, we should maximize the opportunity and attack the fear of crime simultaneously." With McDonald's support, former Chief Stan Knee accepted Vineyard's proposal, creating the APD's Firearms Review Unit.
Vineyard was pleased. It was progress. Still, eight years later, the APD gun initiative has yet to be fully implemented.
'We Love Guns!'
By the available evidence, the APD hasn't exactly considered gun-law enforcement a top priority. Certainly that was true in the years leading up to Vineyard's 1999 gun-squad proposal, and since then things haven't consistently improved. There are currently just two detectives – Vineyard and Howard Staha (who has worked the gun beat since it was created) – assigned to the Firearms Review Unit, which means there isn't much time to do any real proactive policing of firearms cases. As a result, many of the activities Vineyard proposed back in 1999 simply haven't happened. They don't have the manpower to interview every suspect arrested with a firearm, to leverage further leads, or to cultivate a network of gun informants. Most of the work of the firearms unit is "reactive" – reviewing existing cases to ensure appropriate charges are filed and that the proper venue for prosecution is sought. "Policing has to be divided between reactive and proactive work," Vineyard says. "Really, the reactive [work] has to be done. But with just two of us, we're stuck there now." The lack of dedicated resources means investigators aren't able to effectively use all the tools available to them – including, notably, the ATF's Firearms Trace System, which allows police to track a firearm to its original buyer and provides investigators with a paper trail that can help them determine where, when, and how a specific gun traveled into the illegal market.
Yet in fact, that's how police traced the .22-caliber pistol from Brown back to Margaret Lane in Uvalde to her son Michael Lane and then forward, tracking the gun as it changed hands and as the story of a late-night drug deal unfolded. But the Jennings was traced only because it played a central role in a tragic homicide. Even so, police reports reflect that the Firearms Review Unit detectives were not called to the scene of the Brown shooting to help manage the investigation of the .22.
When completed regularly – that is, for every firearm seized by police – ATF gun-trace information can provide investigators with valuable data that can be used to identify patterns in illegal firearms transactions. Currently, at APD there is no mandate to run every seized firearm through the national database – and even if there were such a policy, the Firearms Review Unit doesn't have the manpower to make that happen. (In contrast, every firearm seized by APD is test-fired by the APD's ballistics team, led by Greg Karim, the department's expert firearms examiner, and the resulting information – the unique tool marks a firearm etches onto a projectile – are loaded into the NIBIN system. It's time-consuming work, but Karim considers it an important tool to track crime guns, and he's secured the funding to make it happen.)
Although Vineyard's fellow gun detective Staha recalls a time when gun traces were common and produced valuable leads, Vineyard says that isn't feasible now. In all, he says, perhaps 5% of all seized firearms are traced through the system. In other words, if the Jennings .22 had been seized because Brown was arrested for carrying a concealed weapon, instead of being shot and killed by an APD officer, it is unlikely the story of the pistol would ever have come to light.
Under the administration of Chief Acevedo, this situation might change. In a recent interview, Acevedo said that "removing weapons from suspects and finding firearms" is extremely important and that he believes strongly that police should trace the origin of every recovered firearm. Additionally, Acevedo said that his executive team is currently reviewing the caseload of each unit and will use that information to ensure that resources are allocated appropriately. "Throughout my career, I have known that [it is important] to seek ways to get weapons off the streets," he said. It is important to "take the time" to investigate firearms cases thoroughly; otherwise, "[we] miss the opportunity to remove a gun that could be used in a later tragedy."
While the limitations of the APD's gun unit are frustrating to Vineyard, the situation isn't unique to Austin, says Daniel Webster of the Johns Hopkins Center for Gun Policy and Research. In part, what hinders many police agencies from making gun-law enforcement a top priority is the perception that the black market for weapons is too vast to curb and, consequently, that gun-related crime is better addressed by focusing resources in other areas, like drug crime. "People don't complain about guns going into the black market because they don't see that," says Vineyard. "They see dope on the corners," reinforcing the perception that drug-law enforcement is easily attacked and that firearm enforcement is a far more nebulous task. "What it comes down to is [the assumption] that [policing] the gun trade is hopeless," says Duke University economist Philip Cook, an expert in gun policy and the connection between gun availability and crime. "The problem is that they're wrong."
Guns aren't easily obtained by street criminals, Cook says, in part because they "don't have a lot of cash, and when they do, they have other things they want to spend it on." So, when police make firearm enforcement a priority, they're "able to tighten the screws farther in," reducing the opportunity for "prohibited" people to access firearms. In a 2006 study, Cook and three other researchers sought to determine how readily available guns were on the streets of Chicago, where private handgun possession is banned. Working with an ethnographer, who conducted a host of interviews with cops, gang members, drug dealers, thieves, prostitutes, and teens in one South Side neighborhood, researchers made some surprising discoveries – notably, that the Chicago Police Department's long history of making firearm policing a priority actually reduced the likelihood that drug dealers and gang members would trade in guns or even carry firearms. As one Chicago gang leader explained: "Police don't like [guns] moving around here, man. We stay away from that shit, see, 'cause we already got enough trouble with the police."
The Chicago PD gun strategy is effective because the zero-tolerance message is consistently reinforced with action, says Cook. "Look, I'll be honest with you," one Chicago officer said. "There will always be drugs, drug dealing, and drug dealers. The reason we get tight on guns is that it's better that there be drugs and no one gets killed than if someone gets killed." The officer continued: "We love guns! We love getting them because it makes the job easier on the street. So, when we find one, yes, we really go after them [gang leaders] because they know the rules. They know the agreement, and if we get a gun, that means they broke it."
If the number of guns seized by police is any indication of the effectiveness of the policy, then the CPD's approach is an overwhelming success: From 1999 to 2003, CPD officers confiscated more than 10,000 guns per year, far more than are seized in other large cities. (In contrast, from 1999 to 2001, about 12,000 guns were seized per year by all New York state law-enforcement agencies combined.) Chicago's "confiscation rate is off the charts, even when adjusted for population rates," Cook said recently. And the message has hit home: "Drug dealers in Chicago don't want to deal in guns because there is so much [risk]." Although the researchers suspected that Chicago's handgun ban might explain the limited underground gun market, Cook said that after reviewing additional data, they concluded that Chicago's experience "is not as unusual as you might think." Indeed, similar studies suggest that strict gun enforcement works even where gun ownership is more prevalent. In Boston, where gun violence had escalated to near epidemic levels by the early Nineties, a successful interagency initiative known as Operation Ceasefire took a similar approach, making it clear that firearm violations would not be tolerated. There, Cook explained, part of the police message was, "We'll let you continue drug dealing as usual – with no more pressure than you're usually under – unless you get involved in gunplay, at which point all hell will break loose."
This approach may at first seem counterintuitive, but it makes far more sense than the often-employed alternative, says Webster. The "irony here is that in ... most cities, there is an enormous amount of resources that go toward policing illegal drugs, and they think they can win this 'drug war' through this process," he says, but, "quite frankly" that approach has failed to produce hard results. Webster says he's never seen any studies that show that the strategy has made "any kind of dent on any kind of crime – drugs, property," or any type of gun crime. "One thing we know about the illegal drug market is that it is enormous and that there are so many players that it is just impossible" to stop, he says. "My hope is to wake public-safety officials up to the fact that ... if they want to [reduce homicides], they would take half, or even a quarter," of resources dedicated to fighting the illegal drug market and instead devote those to firearm-law enforcement. "People aren't addicted to gun violence," and yet we consistently choose to fight the twin "beasts" of drug crime – addiction and profit – "instead of focusing on gun crime."
This resonates with Vineyard, who notes that police inherently understand that guns and drugs "go hand in hand." So it makes sense to target guns first – and to make sure resources are available to do so. Ideally, Vineyard would like to see the two-man Firearms Review Unit expanded to include eight or even 16 detectives dedicated to firearm-law enforcement. That's modest, really, considering that APD currently has 85 officers (including supervisors) dedicated to drug investigations. "How many narcotics cases are there?" he asks. "If there are 20,000 people selling crack, you can't go after them all, so you have to focus on the worst ones. And how many of them are carrying guns? If you focus on the gun first, you're going to get a better criminal case, a better crook, and a bigger doper," Vineyard says. "If you work guns that hard, [you're] going to [find] more guns and more dope."
A Deadly Crossroads
There is no evidence (at least publicly available) that the Jennings .22 Kevin Brown was carrying the night he died had been used in the commission of any violent crime. Nonetheless, it became a nexus of violence on June 3. Sgt. Olsen was working a directed patrol overtime shift in the congested area around Chester's – a persistent neighborhood trouble spot – on the night Brown died. He was in the middle of a traffic stop when a club security guard approached him to report his suspicion that a man hanging around outside the club was carrying a firearm. Olsen promised to check things out as soon as he finished with the stop, but before that happened, the guard returned, telling Olsen that he now believed the gun had been passed from one man to another, later identified as Kevin Brown. Whether that transfer ever occurred is unclear – the person the guard originally identified as carrying the weapon denied that he ever passed a gun to Brown (DNA results excluded that man from contributing to the genetic mixture recovered from the pistol's grip), and other witness statements suggest that Brown was likely carrying the weapon the entire time. In any case, once Olsen was alerted to the likelihood of a club patron carrying a gun, he had to check it out. When he did, Brown bolted and ran, triggering the chase by Olsen and his partner and the final fatal scene nearby.
Was Brown's death preventable – and could targeted firearm enforcement have played any role in averting the tragedy? Possibly, if police make it clear that violations of firearm laws will not be tolerated – and if that message is actually backed up with strict enforcement. If that were the case, perhaps Michael Lane wouldn't have agreed to lend his pistol to Theron Fisk, or perhaps Fisk would've left the gun at home instead of carrying it in his car the night of May 31, which in turn would have meant there was no firearm to offer Brown for information on the rogue dealer, Icy Mike. Developing a reputation for hard-line weapons enforcement takes time, Vineyard notes, but he firmly believes the potential benefit would be worth the effort. Not only would such a strategy let the public know that the APD "will ... not tolerate criminals carrying weapons, but [also that] if you are intoxicated or involved in a disturbance, your weapon will be seized to prevent future problems," Vineyard wrote in 1999. "Although a majority of such weapons will be returned, we will likely have prevented a violent crime in the meantime."
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