Why most gun arrests in D.C. don't lead to charges

It's not just prosecutorial discretion

Murder is down about 12% in American cities in 2023 relative to 2022 (which was itself a down year) as we head into the critical summer season.

In Washington, D.C. where I live, the trend has unfortunately gone in the opposite direction and we are on track for a 12% increase in murder. Congressional Republicans have recently taken an interest in D.C. crime issues, largely for the purposes of political posturing, but it’s worth underscoring that this is not purely a question of congressional meddling in local affairs — the federal government actually plays a crucial role in District law enforcement. Even under Home Rule, the city does not have a court system. Instead, our local courts are Article I federal courts¹, and the presidentially-appointed United States Attorney prosecutes the vast majority of serious crimes in the city.

This is noteworthy because a very large share of arrests for carrying a pistol without a license (CPWL) and unauthorized possession of a firearm (UPF) in D.C. do not result in charges, as this chart from the excellent DC Crime Facts blog shows.

One common view in the criminal justice reform community holds that this is good. My councilmember, Brooke Pinto, was recently accused by the D.C. Justice Lab of excessive focus on “possessory offenses not violence prevention.”

This is deeply wrongheaded, and the national constituency of people who think gun control has a role to play in public safety needs to understand that this is where many reformers are coming from. It seems to me that the connection between people cruising around town with illegal guns and violence prevention is extremely clear — interpersonal disputes conducted with guns are much more deadly than disputes conducted without guns, so strongly discouraging people from carrying guns is a good way to reduce lethal violence.

The low papering rate raises the question of whether U.S. Attorney Matthew Graves is on Justice Lab’s side of this — which was, in fact, my initial interpretation of the situation. My current understanding, though, is that this is not the case, and the problem has deeper roots, both in the judiciary and in poor coordination across the USAO, MPD, the mayor’s office, and the council. This is unfortunate because the city just isn’t that large.

The relevant stakeholders need to get together, decide what goals they are pursuing for the city, and align their decisions — about police tactics, about what is actually illegal, and about who they recommend for judicial gigs — with those goals.

A tough town for prosecutors

Part of the baseline context for prosecutors’ actions is the reality that D.C. is a hard city to win a conviction in.

Donald Trump got a lower share of the vote in D.C. than in any county in America — less than half of what he pulled in San Francisco. Local jury pools are unusually skeptical of police officers’ claims and unusually intolerant of any sloppiness or error in their behavior. And as Radley Balko wrote in 2019, “the District’s public defender’s office, known as Public Defender Services (PDS), is often cited as the gold standard for indigent defense. The office is independent from other city agencies, as is its budget, both of which help insulate it from politics and partisanship. Compared to other public defender offices, PDS is well-funded and well-staffed, and it tends to attract smart and aggressive young lawyers from around the country.”

D.C. prosecutors, in other words, are up against the toughest team of defense lawyers that you’ll find anywhere, paired with relatively defendant-friendly juries.

But even when they do secure a conviction, prosecutors still need to face judges. When the U.S. Supreme Court ruled in D.C. v. Heller that the city’s total ban on handgun possession was unconstitutional, that was a huge national news story. In practice, though, the implications of that decision have been extremely minor. It is very difficult to get legal permission to own a handgun in the city, and the overwhelming preponderance of lethal violence is carried out with illegal weapons. Yet a case like T.W. v. United States, which was decided in the D.C. Court of Appeals this past April, attracts almost no media attention.

To quote from the decision:

T.W. raised his hands in the air upon seeing the two officers exit the front vehicle. Ewing asked T.W. whether he had a gun on him, and T.W. responded no. Ewing and Gendelman continued approaching T.W. from each side, and Ewing asked “You sure?” to which T.W. replied, “Yeah, I’m positive.” Gendelman then asked, “I can pat you down just to make sure?” T.W. said “Yeah,” and Gendelman responded, “My man,” as he began to pat T.W. down. Gendelman found a gun in T.W.’s waistband. The encounter lasted about ten seconds from when the first officers exited their vehicle to when the pat-down search began, and it took just about another five seconds for the officers to find the gun on T.W. He was charged with carrying a pistol without a license, possession of an unregistered firearm, unlawful possession of ammunition, and possession of a large-capacity ammunition- feeding device.

Before trial, T.W. moved to suppress the gun, its magazine, and its ammunition. He argued that he was unlawfully seized in violation of the Fourth Amendment when he consented to a pat-down search, and that his consent was the fruit of the illegal seizure. During a hearing on his motion to suppress, T.W. testified that he was “scared and nervous,” never having been arrested before, and did not think he could say “no” to Gendelman’s pat-down request. Asked why not, T.W. responded, “Because of how they came up on me. I felt like I couldn’t walk away.” T.W. further highlighted his youth (21 years old at the time), his “complete lack of experience” with police, “and the fact that he was confronted by multiple officers” who “essentially jumped out on [him] and immediately began asking accusatory questions.”

The trial judge ruled that this was a valid search, and the jury convicted. But the appeals court reversed and held that these police pressure tactics constituted an illegal search.

Without commenting on the merits of the ruling, a few points here:

• Directionally, this is the D.C.-specific version of 4th Amendment law moving the opposite way from the Supreme Court. There are lots of examples of complaints about the Roberts Court weakening defendants’ 4th Amendment rights.

• The ruling made no splash in local media or politics. To the best of my knowledge, it wasn’t covered in the Washington Post or DCist, and I’m not aware of any politician making a statement about it.

• I don’t believe there have been any official changes to statutes or police directives in response to the ruling.

This is the kind of thing that, whether you think the ruling was right or wrong, can open up a big wedge between arrests made by MPD and cases brought by the USAO. To quote the decision, the arresting officers in this case “were part of an MPD ‘crime suppression team,’ which proactively patrols high-crime areas for guns, drugs, and other illegal activity,” and there’s no claim here that they did anything particularly unusual. The city’s highest court simply ruled that this apparently routine tactic of trying to pressure a suspect into consenting to a search is unconstitutional.

If a judicial ruling like this isn’t followed by some kind of change from the mayor and the police chief, you end up with lots of gun seizures that don’t lead to prosecutions. That could be a deliberate decision about the allocation of police resources — the illegal guns do get off the streets, even if nobody is arrested for their possession — but I don’t have the sense that it actually is deliberate. Police officials I’ve spoken to are frustrated that their cases don’t get papered. Prosecutors insist that they are, in fact, trying to enforce the District’s gun laws. And most D.C. elected officials claim to believe that enforcing gun laws is important. But they’re not closing the loop in terms of what the statutes are, nor are they considering their own role in shaping the composition of the judiciary that’s issuing these rulings.

An unusual judiciary

In most places, judges for high courts are either elected by the voters or they are appointed by the governor, which means they get feedback, directly or indirectly, from the public.

D.C. is different. The judges are not elected by D.C. residents, nor are they appointed by D.C.’s mayor. Instead, they are appointed by the President of the United States. But these aren’t typical presidential appointments — when a vacancy arises, the president selects one person out of a panel presented to him by the D.C. Judicial Nomination Commission. The commission itself has seven members, one selected by the president, one selected by the chief judge of the U.S. District Court for DC, one by the D.C. Council, two by the D.C. Bar Association, and two by the mayor of DC.

This is a very unusual degree of political distance between the electorate and the judicial selections. I don’t think most D.C. residents are aware of the relationship between electoral outcomes and these judicial picks, and I don’t know how much attention the Bowser administration or other officials are paying to what happens here. But given the lack of media attention on the D.C. appeals court, you don’t generally see anyone saying, “that case was rightly decided and we’re going to bring police tactics into line with it” or “that case was wrongly decided and we’re going to make some changes.”

Personally, I find this all to be somewhat vexing.

About five years ago, we had the case of Proctor v. United States. An officer named James Love stopped a car with a broken taillight and smelled marijuana. James Proctor, who was driving the car, said he’d just been smoking marijuana. They searched the car and found drugs, money, a scale, Proctor’s mail, and Proctor’s ID. They concluded that he was a drug dealer and got a warrant to search his residence. A bunch of people lived in the house, but in the bedroom that he shared with his girlfriend, they found a CVS bag containing a gun wrapped in a blanket and some mail addressed to Proctor. A jury convicted Proctor of being a felon in possession of an illegal firearm. But he succeeded in getting the conviction overturned on appeal on the grounds that the prosecution had not proven beyond a reasonable doubt that it was Proctor’s gun rather than a gun owned by his girlfriend, Shauna Johnson.

Originally, Johnson had been charged as a co-defendant in the case, but she was able to get the charges dismissed on the grounds that (to quote the appeals court) “there was no evidence to connect her to the car and no evidence that she was the owner of the house.” Once no longer on trial, she testified that she responded to the initiation of the police search by wrapping her gun in a blanket and stashing it in the CVS bag under the bed, and that the police were lying about the mail, which according to her had never been in the bag and was just separately under the bed.

According to the courts, in other words, it’s Schrödinger’s Illegal Handgun — sitting in a bag under the bed shared by a couple but not provably owned by anyone. That case had downstream consequences. Here’s a Washington Post story from about a year ago:

A D.C. police officer pulled over the driver of a Pontiac Bonneville because it had license plates registered to a different type of car, then spotted an open container of alcohol and ordered its occupants to step outside.

A search turned up two silver handguns — one, which was legally registered, in the driver’s pants; the other, which was not, in a green and white bag in the trunk.

Police arrested all four young men who had been in the vehicle, charging each with multiple gun offenses.

But prosecutors soon dropped the cases. According to police, they wanted more evidence to link the illegal gun in the trunk to a specific person in the Bonneville. Eight months after they were taken into custody last fall, those in the group remain uncharged.

When I read that piece last year, I thought the prosecutors were being nutty. Now that I’ve read Proctor, I think the courts are being a bit nutty, but the prosecutors are correct that they can’t bring this case in good faith. The police are frustrated that they are catching guys driving around town with illegal guns based on legitimate searches and charges aren’t filed. And voters are frustrated that so little is being done about gun violence. But nobody is really connecting the dots properly.

We need coordinated solutions

In his post on the low papering rate, DC Crime Facts contrasts the scant media interest in this issue with the extensive coverage of Brooke Pinto’s bill to re-criminalize fare evasion.

To an extent, though, these are linked issues, and the coverage needs to link them more explicitly. If the courts are going to rule (per Proctor) that a person has to have the gun on his person to win a conviction and (per T.W.) that you can’t pressure someone into consenting to a search, then in practice you need laws in place that provide legitimate grounds for searches. Fare evasion happens to be the most salient opportunity here because Pinto’s bill would bring D.C. into closer alignment with Maryland and Virginia and because it also helps address WMATA’s budgetary needs. But I think the Council needs to take this factor seriously across the board, from fake or expired tags to smoking pot on the street and whatever else.

But the Council should also think harder about this Schrödinger’s Gun situation because it’s in part a question of statutory interpretation. Driving a car that has an illegal gun in the trunk could be a crime. It could be a crime to own a gun while sharing a residence with a felon. Judges do what they do, but legislators make policy. If you don’t want convicted felons to have guns in their house, even if they share the dwelling with others, you need to write a law that accomplishes that. It seems really bad to me to say that crews can drive around town with illegal guns as long as there’s more than one guy in the car, and I think a majority of the Council agrees. If so, they need to write a law that has that effect.

The T.W. ruling seems less unreasonable to me.

But if the city government doesn’t think guys in that kind of situation should be stopped and searched, the mayor should direct MPD to have its officers do something else with their time. Resources are limited, and having officers conduct searches that don’t get papered is frustrating for everyone and a waste of time and money. The Council should also contemplate whether it’s their considered view that T.W. didn’t actually do anything wrong. Unlike Proctor, he had no prior arrests and there’s no evidence he was committing any crimes other than carrying a gun. In large swathes of America, they make it easy to get a permit to do that. In D.C., it’s almost impossible. Is that the right solution?

Last but by no means least, elected officials should think about what kind of judges they want. The Court of Appeals has more people with public defender backgrounds than with prosecutorial backgrounds on it, and most of the other judges practiced civil law for the government or for progressive advocacy groups.

There’s been a push by progressives to get more people like that in the federal judiciary, which I think is good in a context where 50% of the judges are appointed by Republicans. But D.C. needs to think about how much of an outlier it wants its judiciary to be. More progressive than the average state? Yes. But should the professional experience of our top court be way to the left of the top court in New York? I’m skeptical. New York is a very low-crime city because they not only have strict gun laws, they enforce them.

None of this is to say that the USAO’s decisions should be beyond scrutiny. They may need to charge more cases. They may also just need more resources — both in terms of line prosecutors in the Superior Court division and in terms of Superior Court judges to hear cases. But people need to understand the situation facing prosecutors in court, and the mayor and the council need to make some choices about whether they are happy with the status quo.

1. I originally said they were Article III courts, but they are in fact Article I courts per Palmore v US (1973). Apologies for the error.