The Last Gun (28 page)

One of the more tragic of these examples is the horrific murder of Skyla Whitaker, eleven, and Taylor Paschal-Placker, thirteen, on Sunday afternoon, June 8, 2008, near the small town of Weleetka, Oklahoma.

Skyla and Taylor were inseparable friends. Taylor was “a big-hearted girl who rescued turtles crawling in the middle of the
road and wanted to become a forensic scientist.” Skyla was “the carefree adventurer—the girl who walked barefoot almost everywhere and rode her bicycle down dirt roads.” Taylor was the only girl in the sixth grade class, Skyla the only girl in the fifth.
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The girls often spent weekends at each other's homes.
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That Sunday at about five
P
.
M
., Skyla and Taylor went for a walk—as they often did—down a deserted dirt road toward the Bad Creek bridge. The bridge is “a popular place for teens to gather and shoot guns.”
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A few minutes later, Taylor's grandfather called her to tell the girls to come home. When she did not answer her cell phone, he went looking for the two. He found both girls lying side by side in a ditch, shot dead.
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An autopsy found that Skyla was shot eight times and Taylor five. Both were shot in the legs, torso, neck, and base of the skull. Both were shot with guns of two different calibers. Both were apparently facing the shooter.
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There was little for investigators to go on. Authorities suspected that the shooter was probably a local, given the remote rural location, even though residents were horrified by the thought. “Everybody wants it to be a monster because they don't want to believe it could happen in their town,” an Oklahoma City detective said of such cases. “But monsters come in all shapes and sizes. It's not like a Disney movie where you can see the villain right away”
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Investigators doubted that a stranger would wander into the remote area.
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They also considered the possibility that, given the two types of guns used, there had been two shooters.
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One of the guns the girls had been shot with was a 22 caliber, and some of these comparatively small bullets, less than a quarter of an inch in diameter, were recovered in the autopsy. But what would turn out to be most important clue were five shell casings found at the scene, fired from another gun. The shells were in 40 Smith & Wesson caliber. They were manufactured by Winchester. The casings were sent for analysis to the Oklahoma State Bureau of Investigation (OSBI) Forensic Science Center in Edmond, Oklahoma.
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Microscopic but highly individual tool marks are left on the
working parts of guns during their manufacture, “analogous to the fingerprints of the firearm.”
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By comparing under magnification the microscopic marks on the shell casings found on the crime scene, an OSBI firearms criminalist was able to determine that they had all been fired from the same gun, and that it had been a Glock 40 caliber pistol.
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The 40 caliber round was developed by Smith & Wesson and Winchester and introduced at NSSF's 1990 SHOT Show. The plan was that Smith & Wesson would make the guns and Winchester would manufacture the ammunition in the new caliber. The .40 Smith & Wesson round was the “perfect compromise,” according to the gun writer and entrepreneur Massad Ayoob, between those who wanted more rounds in their pistols' ammunition magazines and those who wanted bigger bullets. The existing “wondernine” 9mm pistol typically held about sixteen rounds. Although the .45 ACP bullet was much bigger and thus capable of inflicting more damage, its size demanded bigger magazines and thus bigger grips for pistols chambered in it. The 40 caliber was developed as a compromise. Glock quickly followed Smith & Wesson into the market with a pistol chambered in the new round.
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Heavily marketed to law enforcement by Glock, the new round became widely favored for its “stopping power” among law enforcement agencies and civilians.
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A trainer at the Georgia Peace Officers Standards and Training Center told the
Atlanta Journal-Constitution
in 2004 that the “heavier bullet” used in the 40 caliber “tends to penetrate deeper . . . into the body to impact the organs deep in the body. This whole thing is about terminal ballistics.”
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Agents took pictures of people as they left the girls' funeral and confiscated the funeral service registry.
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Investigators also released a drawing of a “person of interest” in the case.
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But the investigation stalled. The OSBI originally assigned about a dozen agents to the case. Three months later, that number had dropped to four as leads dwindled.
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OSBI case agent Kurt Titsworth
continued to follow up clues as they came in. In January 2010, for example, he learned that a man named Kevin Joe Sweat had bought a 40 caliber Glock in the fall of 2007. Titsworth interviewed Sweat, who said that he had sold the gun in 2007 and did not know the serial number.
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Authorities later said that there was no reason at that time to connect Sweat to the murders.
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He was just one more of a score of people who owned Glock 40 caliber pistols in and around bucolic Okfuskee County.

That is where matters remained until August 15, 2011, more than three years after the Weleetka shootings, when Kevin Joe Sweat was arrested and charged with the capital murder of Ashley Taylor, his girlfriend. Ashley and Kevin left the town of Okmulgee, near Weleetka, on July 17, supposedly headed for Louisiana to get married. When they did not return, Ashley's mother reported her missing. Kevin was tracked down and gave several different explanations to Agent Titsworth, who was investigating the woman's disappearance. Eventually, the investigation led to the property of Kevin Sweat's father near Weleetka, and the charred remains of a bonfire. In the ashes, investigators found burned clothing, bits of eyeglasses consistent with those of Ashley, and human remains believed to be hers.
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Soon after, agents returned to the elder Sweat's property and searched an area where, he had told OSBI agents, Kevin sometimes shot his gun. A number of 40 caliber shell casings were found in the dirt. Forensic examination revealed that they had been fired from the same gun as the shells found at the site of the 2008 murder of Skyla and Taylor.
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On September 13, 2011, Titsworth interviewed Kevin Sweat, who was already in custody on the charge of murdering his girlfriend. Sweat confessed to the murders of Skyla and Taylor, according to the affidavit filed in support of charges against him.

Sweat pulled over on the side of the road and saw “two monsters” come at him. Sweat then “panicked.” Sweat grabbed his Glock .40 caliber handgun from between the
seats of his car. Sweat then “shot the monsters” with the Glock handgun. Sweat then grabbed a “22 caliber” gun from the glove box and “shot the monsters” with the .22 caliber gun. Sweat then got into his car and left. Sweat told Titsworth that he shot the “monsters” with the Glock .40 caliber handgun that he had purchased in 2007 while living in Henryetta, OK.
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A question of proof still remained. Agents had evidence connecting the shell casings on the crime scene to the casings on the elder Sweat's property. Were those casings fired from the very Glock 40 caliber pistol that Kevin Sweat had admitted buying and claimed that he had sold? If investigators had the gun, they could cycle a round through the chamber and compare the marks on the shell casing to the ones they already had. By then, OSBI had obtained the serial number of the gun from the dealer who sold it to Sweat—EKG463US.
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But they could not find the gun itself. OSBI asked the FBI to run a crime-gun trace request through ATF, using the gun's serial number. That trace turned up an interesting history, and a one-in-a-million piece of physical evidence that sealed the case tight.

The FBI reported that the ATF trace revealed that the Glock pistol had originally been sold to the Baltimore Police Department sometime around 2005. The Baltimore police sent the gun back to Glock shortly thereafter, one of a batch of defective pistols. Glock refurbished the guns, and one from Baltimore ended up in the Oklahoma gun store where Kevin Joe Sweat bought it in the fall of 2007. But there was more. It turned out that the Baltimore police test-fire all guns before they are distributed to officers and keep the sample casings on file.
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The police department had a shell casing from the 40 caliber Glock with serial number EKG463US. On October 5, 2011, an OSBI agent picked up the shell casing from the Baltimore Police Department. The next day, an OSBI technician matched the casing to the shells recovered at the crime scene and on the Sweat property near Weleetka.
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As of this writing, the gun itself has not been found.

There are millions of similar tracing reports in ATF's records. It was reported in 2007 that every day ATF agents from six ATF regional gun-tracing centers “use a combination of science and shoe-leather detective work to track hundreds of firearms from crime scenes.”
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This data documents the links among millions and millions of guns like Kevin Sweat's 40 caliber Glock and crimes like Sweat's murder of Skyla and Taylor. “Every gun has a story to tell,” William G. McMahon, the special agent in charge of the ATF's New York field office told the Associated Press in 2007.
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Aggregating this data in summary or “wholesale” form—i.e., cutting it free from the details of specific criminal investigations—would provide a picture over time of the types, makes, models, calibers, and origin of guns used in crime in America.

The gun industry's makeshift rationale for not releasing this data to the public is that it might compromise criminal investigations and endanger undercover operations. But Bradley A. Buckles, who was the director of ATF at the time the first of the Tiahrt restrictions was passed in 2003, told the
Washington Post
in 2010 that ATF did not ask for the amendment—for that or for any other reason. “It just showed up,” he said. “I always assumed the NRA did it.”
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He was right, of course. The NRA did do it, on behalf of the gun industry. The makeshift law-enforcement-protection argument was and is a cynical cover story. Tiahrt slipped his amendment into an appropriations bill, ensuring that it would be considered without any sort of hearing. When the Republican chairman of the relevant appropriations subcommittee objected, Tiahrt assured his colleagues that the NRA had reviewed the language. “I wanted to make sure I was fulfilling the needs of my friends who are firearms dealers,” Tiahrt said. NRA officials “were helpful in making sure I had my bases covered.”
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The “needs” of Tiahrt's friends in the gun business were simple. They wanted insulation from lawsuits that were seeking to hold the industry responsible for deliberately polluting
communities all over America with increasingly deadly militarized guns. The Tiahrt Amendment was very specifically and precisely aimed at cutting off these lawsuits.

One notable such suit was
City of Chicago v. Beretta U.S.A. Corp
., in which the City of Chicago filed a civil suit in Illinois state court against firearms manufacturers, distributors, and dealers. The city alleged that these defendants created and maintained “a public nuisance in the city by intentionally marketing firearms to city residents and others likely to use or possess the weapons in the city, where essentially possession of any firearm except long-barrel rifles and shotguns is illegal.”
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Chicago's case was based on the defendants' distribution practices. In order to show the irresponsible pattern of those practices, the city submitted a Freedom of Information Act request to ATF, seeking trace data. Although ATF had often provided such information in the past, it refused to comply fully with the city's request. Chicago then filed suit against ATF in federal district court to force the agency to provide the requested information. The city won against ATF both in the district court and the court of appeals. Then, while an appeal was pending in the U.S. Supreme Court, the NRA and Representative Tiahrt worked behind the scenes to save the gun industry. Acting in the legislative equivalent of the dead of night, Tiahrt introduced what is known in Congress-speak as a rider, an amendment to the Consolidated Appropriations Act of 2003. Professor Colin Miller described the result in a law review article. “By appending the rider to the appropriations bill, he was able to prevent it from being scrutinized in a congressional committee and subjected to a floor debate. Indeed, the only opposition to the rider came after the rider was already appended to the appropriations bill. In a floor statement, Senator Richard Durbin of Illinois lamented that the rider was ‘slipped in the bill' and contended that it was a response to
City of Chicago.
”
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It was as crass and as simple as that.

What about the argument that withholding even summary,
abstracted ATF data is necessary to protect law enforcement? In 2002, this assertion was all but laughed out of court by the U.S. Court of Appeals for the Seventh Circuit, in a caustic opinion written by Judge William Joseph Bauer, who was appointed to the district court by Richard Nixon and the court of appeals by Gerald Ford.
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Judge Bauer wrote on behalf of a three-judge panel in the Chicago case against ATF that “in all its affidavits, documents and testimony, ATF could not identify a single concrete law enforcement proceeding that could be endangered by the release of this information.”
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The judge wrote: