All this talk from progressives about how felon possession laws shouldn't be enforced really goes to show that for some, when talking about gun control the aim is really just to disarm those who they dislike for political and cultural reasons. If gun violence was the actual motivation for the people pushing "assault weapon" bans, enforcing existing laws regarding felon possession should be the lowest of low hanging fruit. And unlike law abiding citizens who legally own guns, felons have already proven that they should not freely be able to do so.
If you support gun control, and also support enforcing existing laws, then while I disagree with your views, at least you're consistent and honest, and I can respect you for that and we can have an actual conversation.
Right, I think in general it's more productive to stress the policy disagreement. There are already enough loud fantasies online about how the other side in politics wants to get me killed, etc.
I think this is pretty uncharitable. Many left-wing critics of the criminal justice system don't like gun possession crimes because they harshly punish people for minimally culpable conduct. People who carry guns often carry them for self-defense (and often in circumstances where they cannot rely on police protection) and without any intent to initiate violence. That's true for convicted felons too, who are particularly likely to live in high-violence places and who may be at higher risk because of previous associations.
"But what about gun control?" It depends--many people who have the kind of view I'm describing are not gun control enthusiasts! Public defenders in NYC filed an amicus brief in support of the challenge to NY's gun laws in Bruen. The left is not a monolith and people who are very strong skeptics of police and prosecutors tend also to be more skeptical of gun control. But also, of course, there is more than one way to do gun control, and one way to do it without criminalizing people for minimally culpable conduct is to cut off the supply of guns by expanding restrictions on and civil liability for gun manufacturers and retailers. There is an active intra-left discourse about these issues.
But it's not gun violence in general that gun control advocates are principally motivated by, it's mass casualty incidents in particular, which are popularly conceived as being committed with "assault weapons." Also, wanting to disarm someone as a punishment doesn't really make sense from within the liberal worldview. Like, the idea that owning guns is something that some people really value and would feel harmed to be deprived of is fundamentally alien to most liberals (for instance, recall this slow boring article https://www.slowboring.com/p/national-democrats-misguided-re-embrace)
"Like, the idea that owning guns is something that some people really value and would feel harmed to be deprived of is fundamentally alien to most liberals"
Do you really think liberals, or anyone, are unaware that there are a lot of people in America who really like and value guns?
While many liberals may think the way you describe, at the same time, they know very well that there are others that do see having their guns taken away as a punishment (not to mention an imposition of tyranny). I have spent a lot of time in *very* left wing spaces (a college with a very liberal student body, growing up in the SF Bay Area) and know firsthand that for some the idea of pissing off the rubes is a huge bonus. It's fundamentally the same underlying psychology as the conservative impulse to "own the libs". Man is flawed and our current political atmosphere unfortunately exacerbates this.
People who want a lot of restrictions on gun sales from FFL dealers don't live in gang territory. They don't know about gang violence and how minors are affected.
I think a lot of people want bans on handguns too, but no, that's even more politically dead in the water than the mild restrictions they're currently pushing.
I would add that the rural/urban split plays a role in this too, because more liberals live in cities and there is arguably less need to own guns there. But I grew up in the middle of nowhere, and many people owned long guns to deal with hostile animals and because there were NO cops anywhere around.
I'm probably one of the most anti-gun people here, as in, I'd be perfectly OK with pretty harsh treatment of current gun owners to lower the guns in circulation, but even I'm perfectly OK with ownership of long guns in very rural areas, both for safety and dealing with varmints.
The issue is a lot of gun owners turn around and try to treat their exurban community that hasn't had any violent crime outside of domestic disputes in years as the same as the middle of Montana or whatever.
If you have an Applebee's or Chik-Fil-A within 10 minutes driving of your home, you're not the same as a rancher in Wyoming.
Yeah, I've come to the sad conclusion that mass shootings are a twisted cultural meme much like serial killings in the 70s, and that there's little to nothing we can do until it dies out on its own, aside from things like hardening schools to the extent reasonable, sad as it is that it has to come to this.
Not sure this is a fair assessment. I think you are implying that progressives are interested in gun control only when it affects white, middle class, conservatives. But progressives don’t have some affinity for urban, gang, and drug selling culture while despising the Cracker Barrel set. I think there may be two counterbalancing pressures. I think progressives understand that access to guns in certain areas of the city is a huge problem but believe that systemic racism in society and the judicial system outweighs that concern to an extent. It is easier to focus on the lone wolf who takes his assault rifle into a school than on the more complicated issue of who to charge when five young people are caught with an illegal gun in the trunk.
"But progressives don’t have some affinity for urban, gang, and drug selling culture while despising the Cracker Barrel set."
They don't have an *affinity* for that culture, no, but many progressives sure do make a lot of excuses for it. More generally, these progressives see urban blacks as the ingroup that must be protected and rural whites as the intrinsically evil outgroup, and this ends up extending to their views on law and justice. The events of the summer of 2020 made that very clear, for example that awful letter from those 1000+ "public health experts".
True, but incoherent. This "protection" is of the criminal minority of urban blacks making life hell for the law-abiding majority of urban blacks! In other words, this is not a real "pro-black" position at all.
Again, depending on the city, much of the law-abiding majority of urban blacks seem OK with laws that hew closer to protecting the "criminal minority" than this community wants.
Intrinsically evil? I guess some do, but certainly not much different than what rural conservatives think about coastal “elites”. Sometimes the simplest explanations are the best—progressives believe black people have faced more barriers, for example due to systemic racism, than suburban and rural whites which makes them more sympathetic (more sympathetic than some might think is warranted, not that they are inherently “better” than the average rural person).
Combine this with the fact that the strongest barrier to new gun control measures comes from conservatives, and you have a recipe for less focus on illegal guns in the city. I think they should redirect some of their focus, but I am loth to assume the motives you attribute.
I'm not inclined to read into their motivations as much as Wendigo is, but I will note that it seems backward to want to control behavior of people who live further away from you more than you want to control the behavior of people close to you...and yet, for so much of the culture war, that is what people want to do.
As I mentioned above, I'm not inclined to delve into their motivations, but more the consequences of their actions. Looking at that, the majority of the judges, prosecutors, and public defenders discussed in this article, are likely strongly in favor of national gun control. This would criminalize behavior all over the country! And yet, when they have the opportunity to enforce the local gun control laws, they choose not to do so.
As for applying the law differently because of race, I think there is a term for that...
But there is more focus on illegal guns in the city, not less. NYC, DC, and Chicago long had some of the harshest and most restrictive gun laws in the country. Those laws are still enforced (though the Supreme Court has repeatedly weakened them). The whole premise here is bizarre. Nobody wants to let off convicted felons who own guns who live in urban centers, but not non-felons who own guns who live in rural areas.
"Nobody wants to let off convicted felons who own guns who live in urban centers, but not non-felons who own guns who live in rural areas."
But they want to simultaneously enact restrictions on legal gun ownership (non-felons) while not prosecuting illegal gun ownership.
And it just so happens that the former negatively affects a lot members of the conservatives coalition, and the latter avoids negatively affecting members of the liberal coalition.
It's a logically tortured position to hold in the first place, and the rationale for why it is nevertheless held is obvious.
Except not prosecuting *does* negatively affect a core coalition group as I pointed above. Victims of crime far outnumber the perpetrators, and the deterioration of cities will affect democratic voters far more than anyone else.
Before Heller and McDonald, DC and Chicago flatly banned owning handguns. So someone who supported those laws thinking that there should be a wider ban on handgun ownership is not being inconsistent. The question of enforcement mechanisms is separate; there are plenty of laws that mostly go unenforced as a matter of discretion or because costs are too high. There's a kind of theoretical problem there but it's a routine feature of law enforcement not limited to guns.
But because they don't like guns they are totally comfortable with a huge tangential legal crackdown on the cracker barrel people if it will even marginally impact the number of guns available in urban areas instead of actually enforcing against people who commit violence.
I don't know what this means, really. MY is trying to change the focus--at least at this time--from just talking about new gun control legislation to talking about needing better enforcement of current laws, and specifically those laws in DC. I tend to agree with him on this. Yes, there are people who want to see way fewer legal guns everywhere, but that is an argument in a different thread for a different article.
And I'm saying the reason for the bad enforcement is that the focus is on enforcing bad laws. When the statutes are constitutionally infirm trash you're not gonna have good enforcement and you need to either replace them with better laws or target your enforcement to more sound ones.
You seriously don't think, "We shouldn't be sending these people to jail we should just get rid of the guns." is a commonly held view?
Edit: Maybe you mean the "people who commit violence" part. We use these pretextual possessory crimes in lieu of actually meaningfully pursuing shooters because it's it's a politically convenient way to be seen to be "doing something!" without having to actually make a case for spending more resources.
I mean, the whole problem here is we have a bunch of laws on the books that don't get enforced because fucking of course we're not gonna send everyone who breaks them to prison. That would be psychotic. Instead we all get to live in this world Matt describes of Schrödinger’s felonies where going to jail mostly comes down to whether the cops think you look like someone who belongs in jail.
I agree, but I find the focus on school shootings frustrating. I always worry about summer because that is when youth in my city get shot. (Our last day of school was Friday, and there were two gun fatalities on Sunday in my city of 100,000.) I am not really worried about a school shooting in my kids' school, even though there are violent incidents there. I feel like crying when people put all their focus on school shootings, especially because I feel like these weird and random shootings are harder to solve than the ones that happen every day out on the sidewalk. It's like the kids who get shot in my city don't matter because they aren't young and cute.
Agree, and I get into lively discussions with liberal friends who have not spent real time with gun homicide datasets. They are worked up about horrible school shootings, but then connect that to a "guns are the leading killer of children" meme that is actually about teenage gang violence.
And they are afraid of big Rambo rifles when most people are killed with handguns.
There's probably someone, somewhere, who believes that conservatives with legal AR-15s should go to jail and inner city criminals with illegal guns shouldn't. But I would be extremely surprised if this were anything close to a majority of progressives.
See also: "You say that people shouldn't go to jail for saying Hitler was right, but you also shouted 'boo' when someone proposed raising taxes by 0.1%. Why are you softer on Nazis than on the center-left?"
These deep dives into the weeds are helpful because much discussion just focuses on "what are the laws" without examining these challenges in how they get enforced.
But I do want to put in a word of sympathy for young men catching a ride where someone just happens to have an illegal gun in the trunk. That kind of "sweeping up everyone near a bad guy" really is questionable policing and public policy... And I say that as someone who wants laws to be enforced to keep our cities safe.
Seems like the owner of the car should be the default responsible party if the gun is in the trunk. If it’s not his, he should testify as to whose it is.
Some guy smashed my parked truck with his bigger truck and just drove off. A bystander saw it, photographed the plates, and showed them to me. Police wouldn't arrest the registered owner of the vehicle because the witness didn't see the driver.
I mean, we've decided that criminal penalties are harsh, so we prefer type II errors to type I errors.. In fact, if no one saw who was driving you don't really know who was driving.
We have looser standards for civil laws and litigation. In a lot of places (e.g. NY) the owner of the car is strictly liable for the negligence of anyone driving their car and you only need to establish it through a preponderance of the evidence.
I think arresting the person is going too far because you can't prove they were driving (joyriding?) but sure feels like you should be able to get civil compensation (your registered car damaged my registered car)
That's my point, you can, just sue them. And, like I said, many jurisdictions make thr owner of the vehicle vicariously liable for whomever was driving. In the context of a minor auto accident, usually you don't even sue them, you submit it to your insurance and they arbitrate with the insurer of the other vehicle.
The police are not really involved in civil compensation.
I don't know if this is what proof means in a criminal context (proof beyond a reasonable doubt). People get convicted of crimes all the time in cases where there was an alternative explanation for events, if that other explanation simply isn't credible.
For example, if someone stole your car for a joyride but you never reported it stolen or have any other evidence that the theft happened, then I probably don't believe that story. The classic line is that we'd rather have ten criminals go free than imprison one innocent man, not that we'd let a thousand criminals go free to avoid the possibility that some innocent might get fucked by extremely unlucky circumstances.
We will never have an answer to this in the prospective sense because people change their behavior to account for how rules are enforced.
It matters if people know that if there are two of us in the car and we put it in the trunk the result is a magic trick of non-enforcement. I’ve never accepted the string case for deterrence, but on the margins there is some influence, which does change the behavior of cops and criminals. The question you’re asking has very different implications in a society where it is generally known to be true.
As a criminal defense lawyer, the Schrödinger's gun argument just doesn't compute for me. Obviously an illegal gun can't lead to a conviction when it isn't possessed by anyone beyond a reasonable doubt.
I also think Matt is pretty cavalier on what criminal convictions actually mean for defendants. Prison is genuinely miserable. Presumably Matt knows that--like most white-collar professionals, if he were ever charged with a crime, he would probably bankrupt himself to try to minimize his time. How would he like to be locked up on stretch facts?
Matt gets the holding of the T.W. case wrong, because he gets the issue wrong. Matt says: "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."
But the defendant did not challenge the legality of the search (ie, the frisk). He challenged the legality of the stop, and the issue in the case was whether the stop constituted a "seizure." From the first paragraph of the opinion: " The government concedes that, if officers did in fact seize T.W. before he consented to a pat-down search, the seizure was unlawful, the motion to suppress should have
been granted, and we must reverse T.W.’s convictions. It contends only that T.W. was not in fact seized when he consented to a search." And, to clarify, it later says: "The government does not contend
that officers had a lawful basis for seizing T.W. before discovering the gun"
This issue of whether a seizure has occurred is very fact-specific, and so it is unlikely to have much effect on police practices. The fact-specific nature of these cases also makes it unsurprising that the case did not get much publicity.
Note also that a "seizure" takes place whenever “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” The Court relied on the following facts in finding that he was seized: "(1) T.W. was the only person in the area; (2) two marked police vehicles, with at least three armed and uniformed officers in
each, quickly pulled into an alley after T.W.; (3) the officers positioned their vehicles in a manner that boxed T.W. in, cutting off his two most obvious escape paths and signaling that he was not free to leave; (4) the two officers who exited the front vehicle approached T.W. from both sides, further obstructing his potential exits, a third officer had exited the rear vehicle, and a fourth had their door open (though it is unclear from the video footage if they had fully exited the car at the time T.W.
consented to a search), so that four officers were approaching T.W. before T.W. agreed to be searched; (5) the officers asked T.W. only accusatory questions, all suggesting they believed he had a gun on him; and (6) although T.W. twice denied having a gun, the officers did not accept his answer and instead asked if they could search him “just to make sure,” manifesting their disbelief in T.W. and suggesting they were not going to let him walk away unless he could alleviate those suspicions."
Matt has an idiosyncratic dislike for lawyers and judges, but he consistently gets legal stuff wrong. Almost as if there is actual expertise involved. If he had asked a lawyer, they would have told them that this case is completely unremarkable. In fact, I'm not sure what could have brought it to his attention.
Fascinating, thanks for sharing! I haven't read the papers on this, but do you happen to know why the government apparently conceded that there wasn't a basis for even a reasonable suspicion Terry Stop? "Suspicious dude who looks like he's engaging in criminal activity is in fact engaging in exactly said criminal activity" sort of the ur-example of justified stops, and sending six officers in two cars after a guy in an alley seems like rather heavy-handed approach for cops lacking even reasonable suspicion, even if you were to assume they're engaging in rampant casual profiling.
1. The fact that he was "in fact engaging in exactly said criminal activity" is irrelevant Lee v. United States, 232 F. 2d 354, 356 (DC Cir. 1956) ["of course the search cannot be justified by what it turned up. United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210; Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520."]
2. The facts mentioned in the appellate decision are :
"As they approached an apartment building at 2348 Ainger Place SE, [at 5:30 pm in March]Gendelman saw somebody, later identified as T.W., “pop out” of a side alley connecting the apartment building’s parking lot to the street. T.W. seemed to notice the approaching police vehicles before he walked back into the alley toward the apartment building’s nearby entrance. Gendelman found T.W.’s conduct suspicious, and the vehicle’s driver sped up and then turned into the alley after T.W. As the officers pulled up, T.W. was in front of the steps leading to the apartment building’s entrance, set back several feet from the alley."
That isn't close to being reasonable suspicion for a stop. And a cop being suspicious is not relevant; there must be ""specific and articulable facts" that would cause a reasonable person to suspect that crime was afoot; "'[A]n inchoate and unparticularized suspicion or hunch' cannot support reasonable suspicion" United States v. Hawkins, 37 F. 4th 854, 857-858 (2nd Cir. 2022).
TL;DR You can't have "reasonable suspicion" if you don't have a reason to believe a crime has occurred, no matter how "suspicious" the person may appear to act.
I read what you wrote and just think lawyers are getting a lot of people killed. How do you expect illegally possessed weapons to be confiscated if every search and seizure is inspected to that degree? How would anyone function in any job if there were a dozen veto points for every step? The answer is we can't. These kinds of lawyerly veto points harm delay or derail every government project, every new housing development, every other criminal charge.
All I can say in response is to quote Justice Scalia in the oral arguments in Maryland v. King:
Katherine Winfree: Mr. Chief Justice, and may it please the Court: Since 2009, when Maryland began to collect DNA samples from arrestees charged with violent crimes and burglary, there had been 225 matches, 75 prosecutions and 42 convictions, including that of Respondent King.
Justice Antonin Scalia: Well, that's really good. I'll bet you if you conducted a lot of unreasonable searches and seizures, you'd get more convictions, too. [Laughter] That proves absolutely nothing.
So, your grievance is not with lawyers; it is with the Constitution.
I mean, if you zoom out and look at the whole world over let's just say the last 120 years- the threat to regular people from the state security services of authoritarian governments is so, so much bigger than random criminals. How many countries have actually collapsed into criminal anarchy, really? Versus, let's look back through the 20th century and say, in how many countries is the armed wing of the government oppressing people by far the bigger concern? Like the ledger isn't even close man. The death toll certainly isn't close!
Many people who want to do violence on behalf of the state are fundamentally bad people, they took positions of power so that they can do bad things, and a liberal democracy should operate with a fundamental amount of skepticism of them
It takes so many leaps of logic and assumptions just to get anywhere close to connecting what you just wrote to what I said in the previous comment. In the realm of protections from police procedural abuses, we have 10x the protections of any government in Western Europe. Relaxing them a bit is not a slippery slope to Stalinist Russia or Pol Pot, but cities like Washington DC are close to El Salvador or Jamaica in terms of murder rate.
The great thing about having a constitution with an enumerated bill of rights is that 'relaxing them a bit' (which will totally go great this time around! promise!) is luckily not an option that's available to you
Again, leaps of logic and many assumptions on your part are required to connect what you just wrote to what I had written. You seem to want to argue against positions I don't even have, good luck with that
Yes, the leaps of logic and many assumptions like (checks notes) quoting what you yourself write 12 hours ago:
'if every search and seizure is inspected to that degree....These kinds of lawyerly veto points'
A bit of reading comprehension shows that you were responding to someone (who I assume is an actual attorney) explaining why this search was thrown out- that the police may not arbitrarily stop & search a group of young men simply because they feel like it
Having strict gun laws that are weakly enforced is a recipe for an "only the criminals have guns" outcome. If I wanted to get a gun, I'd want to do it legally, since the risk of even being arrested for it makes the whole thing not worth it, even if I ultimately don't get convicted. But for a criminal the low risk of conviction makes having a gun much more attractive, since part of their "job" is interacting with the criminal justice system anyway.
Is it better if law-abiding people don't have guns when the criminals do? Probably, because any reduction in guns decreases deaths from guns. But I can see how this can make law-abiding people uncomfortable.
For those of us who don't live in Washington, D.C. -- most of us, I suspect -- this is more of a learning opportunity than anything else. For law-and-order liberals like me, I wish nothing but the best for Matt and others of like mind in their push for a safer city.
Mostly, this article reminded me D.C. is a small and unique place -- the data point about how San Francisco supported Trump twice as much as D.C. is amazing.
Yeah, I live right across the river in Arlington - a very liberal city with a progressive prosecutor who I'm not a fan of. But whenever I cross into DC it strikes me that it really is a world apart.
I got caught in the middle of Dupont Circle's pride. So many teenagers fighting, jumping turnstiles, smoking huge blunts, and carrying liquor bottles in the open. It was anarchy. I am too old for that much stimulation.
Oh ya and the worst part, some people subjected their poor dogs to all that.
The subtext of this piece that we should dial down civil liberties to a point where we get more gun convictions seems bad. “Schrödinger’s Gun” is a well understood consequence of the fact that our standard of proof is substantially higher than “50% likelihood” so it’s not enough to just limit things to two suspects. Public defenders being as skilled and able to devote as much time as prosecutors is a (rarely practiced) underlying assumption of the adversarial legal system. For wherever you draw the line for the fourth amendment, it’s absolutely crucial that violations disqualify any evidence collected when the line is crossed. Juries are as validly democratic governance as anything else.
There are a lot of dials you can turn for 100% conviction rate on crimes, but there are also reasons that we put the bar for convictions so high, and this post didn’t really grapple with those.
This reminds me of the complaint about sexual assaults not being prosecuted. Its not (or least not just) a patrearchal conspiracy, acquaintance rape is very hard to prove b/c the physical evidence is often similar or identical to consensual sex, which has also been known to occur. Usually the only way tell them apart is testimony of the people involved, which tends to be contradictory, and therefore create reasonable doubt.
We could lower the standard for sexual assault convictions, but then we'd be risking more Type I errors, which the criminal justice system is very much designed to avoid.
The same goes for a lot of"white collar" crime, where we want intent to be a required element (math errors on tax returns should be treated differently than lying on your tax return), but intent is necessarily hard to prove.
OTOH, if you have a dead body with a bullet hole in it, it's usually just a question of figuring out who pulled the trigger.
One of my greatest frustrations with the current left Discourse is the common and frankly lazy refrain that obviously blue-collar crimes like "I stuck a knife in your face and demanded money and it's on tape" are designed to be easier to convict than "fudged stuff on my taxes" crimes.
As if this somehow proves that The Man and The Elite are somehow rigging the system nefariously for their own ends, rather than the fact that sticking a knife in somebody's face is prima facie not okay and sort of embeds the question of intent in the act itself.
It's hard to prosecute white-collar crime because the facts are usually very complex and expertise-intensive, and thus expensive to prosecute, and because the crimes often border on perfectly legal business practices. Those things aren't really in the courts' or prosecutors' control. The courts could be less concerned with protecting ordinary business from criminal liability, but I think that criticism is awfully cavalier with the actual reality of what a criminal prosecution means for a defendant's life.
I disagree that the exclusionary rule is essential to keeping strong fourth amendment protections. In fact it is a lousy mechanism that only very weakly sanctions cops and very strongly rewards actually guilty people.
We should fine or fire cops who do illegal searches, not destroy good evidence.
Yes! This! US goes too far with the "fruit of the poisonous tree" doctrine and way too little to hold cops personally accountable for fuck ups (or worse).
I mean the monkey's paw curling here is that if cops can get fired for any search deemed unconstitutional they are going to stop doing any kind of search or seizure that isn't signed off by a judge, which could have a lot of consequences.
The point is there needs to be a more effective way to motivate them to follow the law. Not every democracy go so far with inadmissibility like the us and they still maintain rule of law and due process.
One problem is that, historically, that worked better in theory than in practice. The Supreme Court first applied the exclusionary rule to federal, but not state, prosecutions in 1914 in Weeks v. United States. When the Court finally extended the exclusionary rule to to state prosecutions in 1964 in Mapp v. Ohio, part of the rationale was:
"Significantly, among those now following the rule is California, which, according to its highest court, was "compelled to reach that conclusion because other remedies have completely failed to secure compliance with the constitutional provisions . . . ." People v. Cahan, 44 Cal. 2d 434, 445, 282 P. 2d 905, 911 (1955). In connection with this California case, we note that the second basis elaborated in Wolf in support of its failure to enforce the exclusionary doctrine against the States was that "other means of protection" have been afforded "the right to privacy."[7] 338 U. S., at 30. The experience of California that such other remedies have been worthless and futile is buttressed by the experience of other States. The obvious futility of relegating the Fourth Amendment to the protection of other remedies has, moreover, been recognized by this Court since Wolf. See Irvine v. California, 347 U. S. 128, 137 (1954).",
Note also that this law review article https://repository.law.umich.edu/cgi/viewcontent.cgi?article=3743&context=articles (written, fwiw, by a big name in the criminal procedure field) quotes an NYPD Dep Commissioner as saying: "Before [Mapp], nobody bothered to take out search warrants. [Before Mapp] the U.S. Supreme Court had ruled that evidence obtained without a warrant-illegally if you will-was admissible in state courts. So the feeling was, why bother?"
Relatively minor point of order with respect to your overall comment, but I don't think that "public defenders being as skilled and able to devote as much time as prosecutors is a (rarely practiced) underlying assumption of the adversarial legal system" -- in particular, the right to a public defender in state criminal trials only dates to 1963 (Gideon v. Wainwright), which far postdates the basic outlines of criminal prosecution in American law. Given the relatively late date of the incorporation of the right to counsel (viz., appointment of a public defender) against the states, combined with the well-known (and generally accepted / considered good) selection effect whereby prosecutors bring the cases they think they're most likely to win, it seems that an assumption of parity between prosecution and defense resources isn't necessarily implicit in the structure of American criminal trials.
The idea of enforcing or, even worse, creating other crimes to create an excuse to search people for guns makes me queezy. At the very least, it seems to violate the spirit of the law. It also results in a system of overcriminalization
The point of the 4th Amendment is that the government shouldn't go looking for a reason to arrest someone, and certainly shouldn't search someone without a reason to think they have evidence of a particular crime on them. The fear is that, absent that protection, the government will start searching people or groups of people to harass them. There ste obviously trade offs to that, it's easier to get away with crimes if the police can't search you at will, but that's the trade off we've made via the 4th Amendment. If you want to change that change it, don't come up with a wierd work-around.
It also results in overcriminization. I've heard people arguing that pot should stay illegal because the smell of pot provides cops with an excuse to search people for evidence of other crimes. Thet is doubly bad. Not only have those cops violated the purpose of the 4th Amendment, but in order to allow them to do so, we've limited the liberty of people to smoke pot if they want to.
"The idea of enforcing or, even worse, creating other crimes"
I'm with you that we shouldn't create other crimes, and we should think twice about the crimes we do start enforcing more stringently but enforcing fare evasion seems reasonable on its own.
It's reasonable on its own, but should it them be an excuse to pat the person down looking for other crimes? Is that actually necessary for enforcing laws against fare evasion, or is it just a pretext?
Also, if it looks like enforcing laws against fare evasion is just a pretext to search and harass people (especially if not done evenly), it undermines the the legitimacy of a legitimate law.
I think the law should have some legitimate benefit that we actually care about. So regardless of whether your search finds something, you need to pursue the fare evasion you searched them for.
I agree that even if it's not pure pretext it has some worrying implications and _could_ lead to a slippery slope of adding more and more infractions for this - I just don't think fare evasion or illegal tags (especially because illegal tags aid in the commission/evasion of enforcement for other crimes) fall there.
It stops being a pretext when someone has broken the law within sight of a police officer. At that point it's highly reasonable to assume they might be breaking other laws too, and should be searched.
The way the 4A works is you don't just get to search someone because you have a vague notion they may have committed a crime. Generally, you need a particular crime and a reason to think you will find a particular thing when you search them. Usually you also need a warrant.
There are some exceptions to this. The one at issue here is that police can do a search incident to arrest to make sure the person doesn't have a weapon that they can use to resist arrest - basically you dont want the guy in the hakc of the police car or jail cell pulling out a gun. But it's a very limited exception. It doesn't mean that you get to go search their house for evidence of other crimes. If they had a bag with them, but that bag is more than a few feet away when you are arresting them, you don't even get to search the bag. This is because the purpose is safety, not to go fishing for evidence, and a gun in their house, or in a bag they left down the hall because there is no safety justification.
Technically searching someone you are arresting for a turnstile jump doesn't get you this safety search, but if you are arresting them ~so that you can search them~ it really is the tail wagging the dog.
It is a genuine problem that we have lots more highly lethal guns in the hands of Americans than we ever have had before. I think an unfortunate consequence of this is that we have to create new laws and enforce existing ones more stringently to counteract the private arsenal our communities have amassed.
We can’t have the same live and let live approach to “minor” crime that might have flown when few people in the community had these highly lethal weapons.
I'm always a but skeptical of arguments that center the volumne of guns, because there's little discernible relationship between the volume of guns and the level of crime. This is true over time and between jurisdictions in the US. At best, there's a weak correlation.
Of course, we have way more guns and way more crime than W Europe or Asia, so that link seems strong. But if you zoom out further, we have more guns but less crimes than Latin America and the Caribbean (in general), so all off the sudden other factors are required to explain the relationship and the link seems less strong,
We would have more crime than W Europe or Asia even if we had fewer guns. Americans are maniacs. We already have a higher murder rate for murders committed with only fists.
Yeah, particularly given that I think much of US gun volume comes from individual collectors who own, like, a shitton of guns. America is wealthy, so a gun enthusiast/nut can easily afford to own 27 firearms whereas a similar individual in a poorer country would not.
While there's an obvious massive shift in your odds of shooting someone when you go from owning 0 gun to owning 1 gun, it isn't intuitively obvious that your odds of shooting someone go up meaningfully from there the more you own. I'd love to see some research into whether there's anything here, but if there isn't we really should focus gun reduction on getting people from 1 to 0 rather than trimming some collector back from owning 30 guns to owning 5. The latter will look much bigger in terms of raw gun numbers on paper, but is probably completely useless.
In DC, at current trends, approximately 1/13 Black men can expect to be murdered and around 1/6 can expect to be shot, non-fatally. Many other urban, low-income, Black neighborhoods have similarly dire statistics.
At those levels it's hard to describe existing levels of gun arrests as over-criminalization
I'm not describing gun arrests as "over-criminalization," I'm describing making a bunch of minor things crimes to justify otherwise impermissible searches "over-criminalization." We should make things crimes on their own merits, not because it makes it easier for police to search people.
This reasoning only works for me if you don't think illegal guns everywhere are bad; if we want the cops to focus on removing illegal guns and we know people breaking minor laws are more likely to have illegal guns, then of course it's a good excuse to pat them down! As long as there is an initial crime I can't imagine how that would violate the 4th amendment or the spirit of the law
The search is supposed to be to find something you reasonably suspect is there, not a fishing expedition based on population demographics. Its why you can't search everyone wearing a Greatful Dead shirt for drugs and why getting stopped for a turnstile jump doesn't let them search your house.
Is anyone suggesting that police should do that? I'm not going to pretend that getting a pat down is the same as them turning your house or car upside down. Do you have anything besides thinking searching people is unconstitutional?
No one is suggesting it because it is clearly unconstitutional. But the logic thet jumping a turnstile is cause for cops to search you b/c it shows you might be engaged in other crimes leads to that conclusion.
In fact the constitution justification for cops to search someone after they are caught jumping a turnstile is for the safety of the officers, so they don't have to worry about your having a weapon. Usually the search is limited to your "wingspan." If you dropped your backpack 6 feet away, they can't search it.
Arguments that cops should stop more turnstile jumpers so they can search more people just proves that the safety rationale is BS.
I am astounded at the amount of pushback you're getting on this. I had no idea the 4th amendment was so controversial, though I guess it shouldn't really be all that surprising given the diversity of attitudes toward the 1st and 2nd.
Honestly, I'm not 100% on board with it myself, just in a different way. Evidence suppression is a weird way to safeguard the right since it literally only helps people who are guilty. It isn't even like the right against self-incrimination, where there's a lot of reason to believe forced confessions are bad evidence - if you have an illegal gun on you, you were breaking the law.
However, I'm open to thr idea that evidence suppression is the least-bad way to handle this (money damages won't really do much).
There is a certain type of progressive that thinks that punishing people for quality of life crimes and infractions against civil society is inherently racist. The DC city council has sympathies with these views. It makes me roll my eyes when they work to make it hard to prosecute shoplifting, fare evasion, and defund bus and bike infrastructure to make buses they don't enforce fare collection on free (while not resolving frequency issues.) Oh and the budget shortfalls.
I don’t think very many people believe ‘punishing people for quality of life crimes and infractions against civil society is inherently racist.’ The folks you’re presumably talking about have a more specific to objection to (a) the selective enforcement of those laws to target particular groups, (b) the inconsistency with which those offenses are punished and (c) the insistence that aggressive order maintenance have some effect on overall crime without good evidence supporting that belief.
There actually are some people who actually do think that “quality of life”-type laws only exist as a pretext for harassing members of minority groups, but I suspect that the viewpoint is pretty rare among people who wield actual power; if you look hard enough you can find vocal advocates for pretty much any political opinion.
I think the adjacent belief is that quality of life rules are not per se racist but any deviation from the general population's racial makeup in enforcement is proof of racist intent coupled with the belief that racist enforcement is worse than no enforcement at all.
I'm relatively ok with quality of life crimes (though many could probably be violations). I'm less ok with criminalizing random stuff as a mechanism to get around the 4th Amendment, especially when those laws are then selectively enforced.
Why is anyone stopped for a broken tail light? If the issue is the tail light, send the owner of the car a letter reminding them to fix it. Maybe if they already got a letter, send them a fine with the letter. Otherwise, it's just an excuse to harass people and perform searches you otherwise aren't permitted to do.
That's why we require you to have functional tail lights, but doesn't explain why you need to be stopped. It isn't like you aren't then allowed to drive away with the broken tail light. Send a letter to the car owner.
Those two things have nothing to do with eachother. You are basically acknowledging the stop is pretextual.
Also, the DMV generally knows if you have insurance. Most states require insurance companies to let them know who has insurance and when it is cancelled.
DC courts are not Article III courts. They are akin to territorial courts created under federal law; they're not subject to Article III. I don't think there is any constitutional obstacle to setting them up to be appointed exclusively by DC government like courts elsewhere in the country. There's a recent discussion of this issue in the Supreme Court's 2020 decision Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC, https://www.supremecourt.gov/opinions/19pdf/18-1334_8m58.pdf.
I don't think this post correctly understands what is going on in the T.W. case. The police stopped, interrogated, and then searched T.W. T.W. consented to the search, but the court primarily addressed the antecedent question of whether, at the time of consent, T.W. had already been "seized" (in essence, whether a reasonable person in T.W.'s situation would have felt free to leave). The government conceded that if there was a seizure, it was unlawful (the police had no lawful basis to seize T.W.). There's a general principle that evidence the government discovers as a consequence of a violation of Fourth Amendment rights can be suppressed. And criminal procedure is not my area of expertise, but it does seem pretty clear to me that a person in these circumstances (surrounded by police officers and interrogated about possessing a gun) would not feel free to unilaterally terminate the encounter.
Curious people should read the Proctor decision (correct link here: https://www.dccourts.gov/sites/default/files/2017-10/15-CF-309%20Amended%20Opinion.pdf) but it's also somewhat more complicated than this post suggests. Among other things, it wasn't "Schrodinger's illegal handgun"--Ms. Johnson told the police the handgun was hers pre-trial, and she was acquitted of the unregistered firearm and ammunition charges because the prosecution didn't lay the proper foundation for the admission of registration certificates. That wasn't the only example of sloppy work by the government either (the police officer who found the handgun dumped the CVS bag's content on the floor but there was no testimony that there was nothing else on the floor, which made the court skeptical of the testimony that the mail was in the bag beforehand).
There's a Second Amendment backdrop here too that would be worth keeping in mind: I am not sure that DC could ban non-felons from keeping a firearm in their home (the core right protected in Heller) simply because they live with a felon.
Do you happen to know what the lack of foundation was? (e.g. just the absence of a sponsoring witness?) It seems odd to acquit on the basis of a business records foundation objection given the heavy FRE bias in favoring of admitting them.
I was also curious about this but the decision doesn't say. I agree that it doesn't seem like a hard hearsay problem for the government so not sure how it got messed up.
I tried searching in the DC Superior Courts page (which is a bit of a mess to navigate) but I think it may have been an in-court objection without a readily publicly-accessible hearing transcript. Bother. Also: their CAPTCHA implementation is too hard for actual humans to do, which seems like it makes its susceptibility to computers rather moot...
I am forever vexed by "a lot of laws that won't be enforced" style progressivism. Pisses off everyone involved and makes cities exponentially more dangerous, for absolutely no gain
A post about guns is the perfect opportunity for everyone to talk in circles around each other. 🙂
There is a strain of activist thought that rejects negative reinforcement; ie, it holds that society should refrain from punishing bad behavior in favor of incentivizing good behavior. I do not share this belief.
Carrying a gun unlawfully is a bad thing. If you do a bad thing, you become a bad person, and you should be punished for your badness. Open and shut.
If simply not following a law is what makes a bad person, it follows that if there is no law, there is no bad person. That's your logic, I simply stated the next step. Maybe you want to revise your statement?
Absolutely not! I will not be fazed by the Argument for Anarchy™! There are natural laws. We will disagree on what those natural laws might be, and such disagreement is what positive law exists to resolve. But my sentiment is less rooted in endless debate about laws and more rooted in my conviction that negative reinforcement is a good and valuable tool that should be used to enforce expectations.
Ahh that sweet, sweet, natural law. I will point out that self defense and bodily autonomy are about as natural as law gets, and that one should not give an order which one does not believe will be followed. I don't have qualms about negative reinforcement, but defining a good person by their obedience to bad laws is a fools game.
I like Matt's writing a lot, and I value this publication, but I think he needs to find an attorney or former attorney with criminal law experience to talk through this stuff with him if he's going to analyze or rely on caselaw. I'm just a paralegal, but his description of TW and Proctor doesn't jibe with the opinions as I read them.
The explanation of the CVS bag case makes it sound like there is no such thing as constructive possession in DC. (This is a doctrine that says everybody who has opportunity to possess a contraband item can be charged and convicted for possessing it. Items in trunks are a difficult issue for that doctrine in all jurisdictions though, since it’s not clear everyone in a car has an “opportunity” to grab a gun in the trunk that they might not know about or have easy access to). I suspect but don’t know for sure that this isn’t accurate and that constructive possession is still a thing in DC.
It sounds more to me like a case getting blundered, and law enforcement using it as an excuse in other situations. (This happens plenty as well.) Good lawyering by the defense attorneys and a blunder in timing by the prosecutors seems like the problem to me. They lost all leverage on the co-defendant woman before she testified, which freed her up to then point the finger at herself and put reasonable doubt on her boyfriend. Any case where that happens is going to become a tougher slog for prosecutors (though here in Kentucky, I will grant that a jury has a greater chance of just choosing not to believe the girlfriend).
I agree with the overall point about everybody needing to coordinate better as to what they want, and to proactively pass laws that accomplish those goals. But I also suspect there is a police union contract coming up or something.
Personally the idea that a driver with a gun legally in his waistband could somehow go to jail for the pistol in the trunk is totally bananas. Similarly that a law abiding person can't legally own a gun if anyone living in their house is a prohibited person. Matt is right to identify that the original sin from which all of this flows as DCs totally broken permitting system which went from blatantly, entirely, disregarding the 2nd amendment to only aggressively violating it in spirit. As long as your system is premised on making it as hard as possible for people to exercise their rights this is the outcome you should expect. The solution is a permitting scheme that promotes rigorous enforcement by making it accessible to law abiding persons in a way that makes it truly indefensible not to get one.
I'm struggling to understand why it is "totally bananas" that someone might legally possess a handgun and also illegally possess a handgun.
I'm not familiar with the facts of this case in particular, but it doesn't seem like your analysis relies on the facts, either. Instead, if I'm understanding you correctly, you see no reasonable circumstance under which someone can both legally possess a handgun and illegally possess a handgun.
I can think of several circumstances where it makes sense to me that someone might legally possess an item and also illegally possess an item:
* perhaps the second item was stolen, by this individual or by a third party
* perhaps the person followed proper procedures to obtain and register the first item but did not do so with the second
* perhaps the second item itself is illicit in the jurisdiction the person is in
These seem pretty straightforward to me, so it's hard for me to see where you are coming from. But maybe I'm not understanding your position.
I don’t think that’s the OP assertion at all. ‘A person having a legal firearm doesn’t make them criminally liable for an illegal one nearby’ is not remotely the same thing as ‘There is no reasonable circumstance in which a person can legally possess handgun and illegally possess a firearm.’
It seems to me that OP's focus has on been on the driver of the car being legally allowed to possess a firearm, meaning that he can't possibly be held criminally liable for an illegal firearm in the trunk of the car he was driving. See his reply above, which focused on licensing.
But I might still be misunderstanding him! This is a very real possibility. That's why I asked.
Possession =/= ownership. A licensed person can possess any firearm in the class of firearm the license covers. The question of the legal ownership status of the firearm is a separate one that is distinct from my commentary.
So, this actually gets pretty in the weeds. Typically in the US it is not the case that a pistol is actually "registered" anywhere. That's kind of a myth. Some specific localities (NYC. Maybe DC, not sure given how many times they've been forced to revise their permitting system since Heller) try to enforce fairly constitutionally dubious schemes where you have to like get a new permit for each firearm you purchase, or maybe your carry permit only covers certain guns you might own. We'd really need more information about the status of this guy's specific permit and whatever registration requirement the courts currently are or aren't allowing to be in force in DC to actually evaluate the situation rigorously. Fundamentally all of those laws are extremely vulnerable to appeal in the current legal environment so it's in no way surprising that even if there is some unusual technical way a permitted gun owner might be in possession of an "illegal" gun that it wouldn't get charged. And that's really the moral of the story, trash laws don't get enforced. If there was evidence the gun was stolen, or the driver was a prohibited possessor it would probably be different.
Your response prompted a little Googling on my end, since I just took it as an article of faith that the Washington Post meant something when they said that one gun was registered and the other wasn't. I found this site, which indicates that all firearms in the District are legally required to be registered:
My Googling has also confirmed what you pointed out, which is that this kind of requirement is quite rare in the US. I live in New York City, and while I've never possessed a firearm here in NYC, I am vaguely familiar with the registration requirements (at least, I know there are registration requirements). I knew NYC took a stricter approach to firearm regulation than most of the rest of the country, but I was not aware how much stricter.
Yea, this is exactly the sort of thing has has kept the district tied up in court for like 2 decades and is probably doubly so since Bruen last year. Stringent enforcement of that is really gonna present major legal headaches for them.
I mean... I have to register the tags for *both* of my cars, and update *both* my passport and my driver's license for them to be useful, and file taxes for *both* of my household's incomes, and...
I mean, it’s clearly more akin to saying “my vehicle’s registration doesn’t also apply to my neighbor’s car.”
Just up and say “I don’t like that the law requires permits for each firearm” instead of making up bullshit analogies.
If libertarians actually displayed a scrap of intellectual honesty in distinguishing between normative and descriptive claims maybe the rest of us wouldn’t find you all to be so damned obnoxious.
My specifically descriptive claim about permitting of individual firearms rather than possessors is that it is unusual and constitutionally infirm, but if you happen to live in one of those jurisdictions one not openly flout said laws unless one's intent is to create a test case for litigation. Especially if you happen not to be the sort of person likely to slide on that type of Shrodinger's felony. I stand by the normative claim that it is an absolutely bananas thing to charge and only really gets charged as a BS means of coercing plea deals from people they aren't actually able to stick more legitimate charges to.
I get where you're coming from here. It is entirely reasonable to assume that an item found in the trunk of your car while you are driving it is yours, but possession of an unregistered pistol when you are licensed to possess a pistol should be considered a minor administrative offense, assuming it's a normal pistol and not an NFA item or something like that. Also, shall-issue should have been explicitly written into the constitution.
I'm going to have to disagree that having a girlfriend should be a get-out-of-jail-free card for a felon in possession, though.
When I lived in the District I had a firearms license. But definitely there were significant hoops. You are of course correct on the merits. I would even say that it is highly likely that a driver with a legal gun is not the owner of an illegal gun in the trunk (potential accessory liability is another matter).
The starting point for the piece is about the high murder rate in DC. Do you think making it easier to own a gun in DC will reduce the murder rate? If not, then I don’t think it makes sense to consider the permitting system as being the ultimate cause (“original sin”) of the problem. Maybe it’s the proximate cause of the legal headaches, but then you’re still left with an abnormally high murder rate.
The broken permitting system makes it harder to impact the murder rate through enforcement. The availability of permitted handguns has essentially zero correlation with the homicide rate.
Ok. This is where I failed at the necessary degree of specificity. The number of persons with a permit to carry a handgun has essentially zero correlation with with homicides. In some broad sense the commerce in handguns enables the straw purchases and thefts that supply most of the guns used in homicides, which is a reasonable target for enforcement (the straw purchases). Broadly acting to constrain the legal commerce in arms violates the constitution and would require an amendment to meaningfully enable.
I disagree on the constitutional question--what’s all that verbiage about a well-regulated militia? Just some irrelevant stream-of-consciousness stuff? That said, you might be right that changing the permitting rules would be good on the merits, but I don’t see how increasing permits will decrease murders, and so this whole discussion seems irrelevant to the motivation for the piece.
The militia clause is a clear statement of the intent of the amendment. Maintaining a free state requires that effective combat capacity be retained by the citizenry. It exists to promote both national defense and the separation of powers.
I take some solace knowing that as the ownership of legal firearms becomes increasingly more concentrated in a handful of mostly batshit people (I love my dad and grandfather but they’re completely fucking insane), that’s almost inevitably where the courts will eventually end up, and then I’ll be able to ditch my concealed carry permit and weapon because there’ll be no need.
1. Illegal gun possession should be taken seriously.
2. But that does not necessarily require prison time for cases of just possession.
3. Some cases are messy and hard to prosecute because of guilt beyond a reasonable doubt, like the gun in a house where 4 people live, and that's just too bad.
4. Public defenders should be good professionals and adequately funded everywhere.
1 and 4 and 3 with some tweaking. The owner/renter of the house could be held responsible for allowing storage of an unlicensed gun. THAT probably should just be a stiff fine rather than prison.
Hey - I have a dashboard / visualization webpage with a lot of relevant graphics if you want to know what's been happening with homicide in DC and cities like it.
The above link is a new addition that looks at premature deaths like homicide, suicide, ODs, traffic accidents and how much they've gone up since 2018-2019. You can view by age, race, gender, state and a couple more. If you look by state, you can see that DC has had a huge 54% rise across all categories and it's the 2nd worst in the nation. DC has also led the nation in the rise in fatal traffic accidents, with a 42% rise.
you can see the last 45 years in reported murder data and clearance rates for any county in the country. Unfortunately, if you type in DC you'll see it has especially bad issues even reporting the data to the FBI, but that's interesting in itself:
All this talk from progressives about how felon possession laws shouldn't be enforced really goes to show that for some, when talking about gun control the aim is really just to disarm those who they dislike for political and cultural reasons. If gun violence was the actual motivation for the people pushing "assault weapon" bans, enforcing existing laws regarding felon possession should be the lowest of low hanging fruit. And unlike law abiding citizens who legally own guns, felons have already proven that they should not freely be able to do so.
If you support gun control, and also support enforcing existing laws, then while I disagree with your views, at least you're consistent and honest, and I can respect you for that and we can have an actual conversation.
I am going to say this is an unfair assessment because people often hold contradictory and poorly reasoned beliefs simultaneously.
Right, I think in general it's more productive to stress the policy disagreement. There are already enough loud fantasies online about how the other side in politics wants to get me killed, etc.
We need a reverse Zardoz.
No, the penis is not good.
I think this is pretty uncharitable. Many left-wing critics of the criminal justice system don't like gun possession crimes because they harshly punish people for minimally culpable conduct. People who carry guns often carry them for self-defense (and often in circumstances where they cannot rely on police protection) and without any intent to initiate violence. That's true for convicted felons too, who are particularly likely to live in high-violence places and who may be at higher risk because of previous associations.
"But what about gun control?" It depends--many people who have the kind of view I'm describing are not gun control enthusiasts! Public defenders in NYC filed an amicus brief in support of the challenge to NY's gun laws in Bruen. The left is not a monolith and people who are very strong skeptics of police and prosecutors tend also to be more skeptical of gun control. But also, of course, there is more than one way to do gun control, and one way to do it without criminalizing people for minimally culpable conduct is to cut off the supply of guns by expanding restrictions on and civil liability for gun manufacturers and retailers. There is an active intra-left discourse about these issues.
But it's not gun violence in general that gun control advocates are principally motivated by, it's mass casualty incidents in particular, which are popularly conceived as being committed with "assault weapons." Also, wanting to disarm someone as a punishment doesn't really make sense from within the liberal worldview. Like, the idea that owning guns is something that some people really value and would feel harmed to be deprived of is fundamentally alien to most liberals (for instance, recall this slow boring article https://www.slowboring.com/p/national-democrats-misguided-re-embrace)
"Like, the idea that owning guns is something that some people really value and would feel harmed to be deprived of is fundamentally alien to most liberals"
Do you really think liberals, or anyone, are unaware that there are a lot of people in America who really like and value guns?
Hatred of the outgroup, as described in the article I link here, is a very powerful force in American politics. https://slatestarcodex.com/2014/09/30/i-can-tolerate-anything-except-the-outgroup/
While many liberals may think the way you describe, at the same time, they know very well that there are others that do see having their guns taken away as a punishment (not to mention an imposition of tyranny). I have spent a lot of time in *very* left wing spaces (a college with a very liberal student body, growing up in the SF Bay Area) and know firsthand that for some the idea of pissing off the rubes is a huge bonus. It's fundamentally the same underlying psychology as the conservative impulse to "own the libs". Man is flawed and our current political atmosphere unfortunately exacerbates this.
Eh, I think some groups like to bond over the idea they are hated by others.
This is always weird to me because the vast majority of under-18 gun deaths are due to handguns and not mass shootings.
People who want a lot of restrictions on gun sales from FFL dealers don't live in gang territory. They don't know about gang violence and how minors are affected.
I think a lot of people want bans on handguns too, but no, that's even more politically dead in the water than the mild restrictions they're currently pushing.
I would add that the rural/urban split plays a role in this too, because more liberals live in cities and there is arguably less need to own guns there. But I grew up in the middle of nowhere, and many people owned long guns to deal with hostile animals and because there were NO cops anywhere around.
I'm probably one of the most anti-gun people here, as in, I'd be perfectly OK with pretty harsh treatment of current gun owners to lower the guns in circulation, but even I'm perfectly OK with ownership of long guns in very rural areas, both for safety and dealing with varmints.
The issue is a lot of gun owners turn around and try to treat their exurban community that hasn't had any violent crime outside of domestic disputes in years as the same as the middle of Montana or whatever.
If you have an Applebee's or Chik-Fil-A within 10 minutes driving of your home, you're not the same as a rancher in Wyoming.
Yeah, I've come to the sad conclusion that mass shootings are a twisted cultural meme much like serial killings in the 70s, and that there's little to nothing we can do until it dies out on its own, aside from things like hardening schools to the extent reasonable, sad as it is that it has to come to this.
Not sure this is a fair assessment. I think you are implying that progressives are interested in gun control only when it affects white, middle class, conservatives. But progressives don’t have some affinity for urban, gang, and drug selling culture while despising the Cracker Barrel set. I think there may be two counterbalancing pressures. I think progressives understand that access to guns in certain areas of the city is a huge problem but believe that systemic racism in society and the judicial system outweighs that concern to an extent. It is easier to focus on the lone wolf who takes his assault rifle into a school than on the more complicated issue of who to charge when five young people are caught with an illegal gun in the trunk.
"But progressives don’t have some affinity for urban, gang, and drug selling culture while despising the Cracker Barrel set."
They don't have an *affinity* for that culture, no, but many progressives sure do make a lot of excuses for it. More generally, these progressives see urban blacks as the ingroup that must be protected and rural whites as the intrinsically evil outgroup, and this ends up extending to their views on law and justice. The events of the summer of 2020 made that very clear, for example that awful letter from those 1000+ "public health experts".
True, but incoherent. This "protection" is of the criminal minority of urban blacks making life hell for the law-abiding majority of urban blacks! In other words, this is not a real "pro-black" position at all.
Again, depending on the city, much of the law-abiding majority of urban blacks seem OK with laws that hew closer to protecting the "criminal minority" than this community wants.
Intrinsically evil? I guess some do, but certainly not much different than what rural conservatives think about coastal “elites”. Sometimes the simplest explanations are the best—progressives believe black people have faced more barriers, for example due to systemic racism, than suburban and rural whites which makes them more sympathetic (more sympathetic than some might think is warranted, not that they are inherently “better” than the average rural person).
Combine this with the fact that the strongest barrier to new gun control measures comes from conservatives, and you have a recipe for less focus on illegal guns in the city. I think they should redirect some of their focus, but I am loth to assume the motives you attribute.
I'm not inclined to read into their motivations as much as Wendigo is, but I will note that it seems backward to want to control behavior of people who live further away from you more than you want to control the behavior of people close to you...and yet, for so much of the culture war, that is what people want to do.
Do you think the reason DC doesn’t enforce local gun laws is because they focus on controlling them far away?
As I mentioned above, I'm not inclined to delve into their motivations, but more the consequences of their actions. Looking at that, the majority of the judges, prosecutors, and public defenders discussed in this article, are likely strongly in favor of national gun control. This would criminalize behavior all over the country! And yet, when they have the opportunity to enforce the local gun control laws, they choose not to do so.
As for applying the law differently because of race, I think there is a term for that...
But there is more focus on illegal guns in the city, not less. NYC, DC, and Chicago long had some of the harshest and most restrictive gun laws in the country. Those laws are still enforced (though the Supreme Court has repeatedly weakened them). The whole premise here is bizarre. Nobody wants to let off convicted felons who own guns who live in urban centers, but not non-felons who own guns who live in rural areas.
"Nobody wants to let off convicted felons who own guns who live in urban centers, but not non-felons who own guns who live in rural areas."
But they want to simultaneously enact restrictions on legal gun ownership (non-felons) while not prosecuting illegal gun ownership.
And it just so happens that the former negatively affects a lot members of the conservatives coalition, and the latter avoids negatively affecting members of the liberal coalition.
It's a logically tortured position to hold in the first place, and the rationale for why it is nevertheless held is obvious.
Except not prosecuting *does* negatively affect a core coalition group as I pointed above. Victims of crime far outnumber the perpetrators, and the deterioration of cities will affect democratic voters far more than anyone else.
Before Heller and McDonald, DC and Chicago flatly banned owning handguns. So someone who supported those laws thinking that there should be a wider ban on handgun ownership is not being inconsistent. The question of enforcement mechanisms is separate; there are plenty of laws that mostly go unenforced as a matter of discretion or because costs are too high. There's a kind of theoretical problem there but it's a routine feature of law enforcement not limited to guns.
But because they don't like guns they are totally comfortable with a huge tangential legal crackdown on the cracker barrel people if it will even marginally impact the number of guns available in urban areas instead of actually enforcing against people who commit violence.
I don't know what this means, really. MY is trying to change the focus--at least at this time--from just talking about new gun control legislation to talking about needing better enforcement of current laws, and specifically those laws in DC. I tend to agree with him on this. Yes, there are people who want to see way fewer legal guns everywhere, but that is an argument in a different thread for a different article.
And I'm saying the reason for the bad enforcement is that the focus is on enforcing bad laws. When the statutes are constitutionally infirm trash you're not gonna have good enforcement and you need to either replace them with better laws or target your enforcement to more sound ones.
I don't think this is a real view that anybody holds.
You seriously don't think, "We shouldn't be sending these people to jail we should just get rid of the guns." is a commonly held view?
Edit: Maybe you mean the "people who commit violence" part. We use these pretextual possessory crimes in lieu of actually meaningfully pursuing shooters because it's it's a politically convenient way to be seen to be "doing something!" without having to actually make a case for spending more resources.
That's a real position. But it doesn't entail sending "cracker barrel people" to prison either.
I mean, the whole problem here is we have a bunch of laws on the books that don't get enforced because fucking of course we're not gonna send everyone who breaks them to prison. That would be psychotic. Instead we all get to live in this world Matt describes of Schrödinger’s felonies where going to jail mostly comes down to whether the cops think you look like someone who belongs in jail.
I agree, but I find the focus on school shootings frustrating. I always worry about summer because that is when youth in my city get shot. (Our last day of school was Friday, and there were two gun fatalities on Sunday in my city of 100,000.) I am not really worried about a school shooting in my kids' school, even though there are violent incidents there. I feel like crying when people put all their focus on school shootings, especially because I feel like these weird and random shootings are harder to solve than the ones that happen every day out on the sidewalk. It's like the kids who get shot in my city don't matter because they aren't young and cute.
Agree, and I get into lively discussions with liberal friends who have not spent real time with gun homicide datasets. They are worked up about horrible school shootings, but then connect that to a "guns are the leading killer of children" meme that is actually about teenage gang violence.
And they are afraid of big Rambo rifles when most people are killed with handguns.
There's probably someone, somewhere, who believes that conservatives with legal AR-15s should go to jail and inner city criminals with illegal guns shouldn't. But I would be extremely surprised if this were anything close to a majority of progressives.
See also: "You say that people shouldn't go to jail for saying Hitler was right, but you also shouted 'boo' when someone proposed raising taxes by 0.1%. Why are you softer on Nazis than on the center-left?"
These deep dives into the weeds are helpful because much discussion just focuses on "what are the laws" without examining these challenges in how they get enforced.
But I do want to put in a word of sympathy for young men catching a ride where someone just happens to have an illegal gun in the trunk. That kind of "sweeping up everyone near a bad guy" really is questionable policing and public policy... And I say that as someone who wants laws to be enforced to keep our cities safe.
Seems like the owner of the car should be the default responsible party if the gun is in the trunk. If it’s not his, he should testify as to whose it is.
Can only make him testify if he’s not a suspect. Or you can give him immunity and make him testify. That’s a prosecutorial choice.
Works for me
Doesn't surprise me at all.
Some guy smashed my parked truck with his bigger truck and just drove off. A bystander saw it, photographed the plates, and showed them to me. Police wouldn't arrest the registered owner of the vehicle because the witness didn't see the driver.
I mean, we've decided that criminal penalties are harsh, so we prefer type II errors to type I errors.. In fact, if no one saw who was driving you don't really know who was driving.
We have looser standards for civil laws and litigation. In a lot of places (e.g. NY) the owner of the car is strictly liable for the negligence of anyone driving their car and you only need to establish it through a preponderance of the evidence.
I think arresting the person is going too far because you can't prove they were driving (joyriding?) but sure feels like you should be able to get civil compensation (your registered car damaged my registered car)
That's my point, you can, just sue them. And, like I said, many jurisdictions make thr owner of the vehicle vicariously liable for whomever was driving. In the context of a minor auto accident, usually you don't even sue them, you submit it to your insurance and they arbitrate with the insurer of the other vehicle.
The police are not really involved in civil compensation.
I don't know if this is what proof means in a criminal context (proof beyond a reasonable doubt). People get convicted of crimes all the time in cases where there was an alternative explanation for events, if that other explanation simply isn't credible.
For example, if someone stole your car for a joyride but you never reported it stolen or have any other evidence that the theft happened, then I probably don't believe that story. The classic line is that we'd rather have ten criminals go free than imprison one innocent man, not that we'd let a thousand criminals go free to avoid the possibility that some innocent might get fucked by extremely unlucky circumstances.
Arrest the vehicle. Boot time. Civil asset forfeiture.
We will never have an answer to this in the prospective sense because people change their behavior to account for how rules are enforced.
It matters if people know that if there are two of us in the car and we put it in the trunk the result is a magic trick of non-enforcement. I’ve never accepted the string case for deterrence, but on the margins there is some influence, which does change the behavior of cops and criminals. The question you’re asking has very different implications in a society where it is generally known to be true.
It's also insane to think the driver with a pistol legally in his waistband is somehow guilty of a crime for the pistol in the trunk.
As a criminal defense lawyer, the Schrödinger's gun argument just doesn't compute for me. Obviously an illegal gun can't lead to a conviction when it isn't possessed by anyone beyond a reasonable doubt.
I also think Matt is pretty cavalier on what criminal convictions actually mean for defendants. Prison is genuinely miserable. Presumably Matt knows that--like most white-collar professionals, if he were ever charged with a crime, he would probably bankrupt himself to try to minimize his time. How would he like to be locked up on stretch facts?
Matt gets the holding of the T.W. case wrong, because he gets the issue wrong. Matt says: "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."
But the defendant did not challenge the legality of the search (ie, the frisk). He challenged the legality of the stop, and the issue in the case was whether the stop constituted a "seizure." From the first paragraph of the opinion: " The government concedes that, if officers did in fact seize T.W. before he consented to a pat-down search, the seizure was unlawful, the motion to suppress should have
been granted, and we must reverse T.W.’s convictions. It contends only that T.W. was not in fact seized when he consented to a search." And, to clarify, it later says: "The government does not contend
that officers had a lawful basis for seizing T.W. before discovering the gun"
This issue of whether a seizure has occurred is very fact-specific, and so it is unlikely to have much effect on police practices. The fact-specific nature of these cases also makes it unsurprising that the case did not get much publicity.
Note also that a "seizure" takes place whenever “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” The Court relied on the following facts in finding that he was seized: "(1) T.W. was the only person in the area; (2) two marked police vehicles, with at least three armed and uniformed officers in
each, quickly pulled into an alley after T.W.; (3) the officers positioned their vehicles in a manner that boxed T.W. in, cutting off his two most obvious escape paths and signaling that he was not free to leave; (4) the two officers who exited the front vehicle approached T.W. from both sides, further obstructing his potential exits, a third officer had exited the rear vehicle, and a fourth had their door open (though it is unclear from the video footage if they had fully exited the car at the time T.W.
consented to a search), so that four officers were approaching T.W. before T.W. agreed to be searched; (5) the officers asked T.W. only accusatory questions, all suggesting they believed he had a gun on him; and (6) although T.W. twice denied having a gun, the officers did not accept his answer and instead asked if they could search him “just to make sure,” manifesting their disbelief in T.W. and suggesting they were not going to let him walk away unless he could alleviate those suspicions."
Thanks for writing this up; you beat me to it. I feel Matt should print a correction; his characterization of this case is way off.
Matt has an idiosyncratic dislike for lawyers and judges, but he consistently gets legal stuff wrong. Almost as if there is actual expertise involved. If he had asked a lawyer, they would have told them that this case is completely unremarkable. In fact, I'm not sure what could have brought it to his attention.
Fascinating, thanks for sharing! I haven't read the papers on this, but do you happen to know why the government apparently conceded that there wasn't a basis for even a reasonable suspicion Terry Stop? "Suspicious dude who looks like he's engaging in criminal activity is in fact engaging in exactly said criminal activity" sort of the ur-example of justified stops, and sending six officers in two cars after a guy in an alley seems like rather heavy-handed approach for cops lacking even reasonable suspicion, even if you were to assume they're engaging in rampant casual profiling.
I don't know for sure. However:
1. The fact that he was "in fact engaging in exactly said criminal activity" is irrelevant Lee v. United States, 232 F. 2d 354, 356 (DC Cir. 1956) ["of course the search cannot be justified by what it turned up. United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210; Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520."]
2. The facts mentioned in the appellate decision are :
"As they approached an apartment building at 2348 Ainger Place SE, [at 5:30 pm in March]Gendelman saw somebody, later identified as T.W., “pop out” of a side alley connecting the apartment building’s parking lot to the street. T.W. seemed to notice the approaching police vehicles before he walked back into the alley toward the apartment building’s nearby entrance. Gendelman found T.W.’s conduct suspicious, and the vehicle’s driver sped up and then turned into the alley after T.W. As the officers pulled up, T.W. was in front of the steps leading to the apartment building’s entrance, set back several feet from the alley."
That isn't close to being reasonable suspicion for a stop. And a cop being suspicious is not relevant; there must be ""specific and articulable facts" that would cause a reasonable person to suspect that crime was afoot; "'[A]n inchoate and unparticularized suspicion or hunch' cannot support reasonable suspicion" United States v. Hawkins, 37 F. 4th 854, 857-858 (2nd Cir. 2022).
TL;DR You can't have "reasonable suspicion" if you don't have a reason to believe a crime has occurred, no matter how "suspicious" the person may appear to act.
Dang it, beat me again!
I read what you wrote and just think lawyers are getting a lot of people killed. How do you expect illegally possessed weapons to be confiscated if every search and seizure is inspected to that degree? How would anyone function in any job if there were a dozen veto points for every step? The answer is we can't. These kinds of lawyerly veto points harm delay or derail every government project, every new housing development, every other criminal charge.
All I can say in response is to quote Justice Scalia in the oral arguments in Maryland v. King:
Katherine Winfree: Mr. Chief Justice, and may it please the Court: Since 2009, when Maryland began to collect DNA samples from arrestees charged with violent crimes and burglary, there had been 225 matches, 75 prosecutions and 42 convictions, including that of Respondent King.
Justice Antonin Scalia: Well, that's really good. I'll bet you if you conducted a lot of unreasonable searches and seizures, you'd get more convictions, too. [Laughter] That proves absolutely nothing.
So, your grievance is not with lawyers; it is with the Constitution.
Translation, 'I like authoritarianism'.
I mean, if you zoom out and look at the whole world over let's just say the last 120 years- the threat to regular people from the state security services of authoritarian governments is so, so much bigger than random criminals. How many countries have actually collapsed into criminal anarchy, really? Versus, let's look back through the 20th century and say, in how many countries is the armed wing of the government oppressing people by far the bigger concern? Like the ledger isn't even close man. The death toll certainly isn't close!
Many people who want to do violence on behalf of the state are fundamentally bad people, they took positions of power so that they can do bad things, and a liberal democracy should operate with a fundamental amount of skepticism of them
It takes so many leaps of logic and assumptions just to get anywhere close to connecting what you just wrote to what I said in the previous comment. In the realm of protections from police procedural abuses, we have 10x the protections of any government in Western Europe. Relaxing them a bit is not a slippery slope to Stalinist Russia or Pol Pot, but cities like Washington DC are close to El Salvador or Jamaica in terms of murder rate.
The great thing about having a constitution with an enumerated bill of rights is that 'relaxing them a bit' (which will totally go great this time around! promise!) is luckily not an option that's available to you
Again, leaps of logic and many assumptions on your part are required to connect what you just wrote to what I had written. You seem to want to argue against positions I don't even have, good luck with that
Yes, the leaps of logic and many assumptions like (checks notes) quoting what you yourself write 12 hours ago:
'if every search and seizure is inspected to that degree....These kinds of lawyerly veto points'
A bit of reading comprehension shows that you were responding to someone (who I assume is an actual attorney) explaining why this search was thrown out- that the police may not arbitrarily stop & search a group of young men simply because they feel like it
Having strict gun laws that are weakly enforced is a recipe for an "only the criminals have guns" outcome. If I wanted to get a gun, I'd want to do it legally, since the risk of even being arrested for it makes the whole thing not worth it, even if I ultimately don't get convicted. But for a criminal the low risk of conviction makes having a gun much more attractive, since part of their "job" is interacting with the criminal justice system anyway.
Is it better if law-abiding people don't have guns when the criminals do? Probably, because any reduction in guns decreases deaths from guns. But I can see how this can make law-abiding people uncomfortable.
It's basically the situation in Jamaica and Mexico., each of which is much stricter "on paper" but neither of which is exactly crime-free.
For those of us who don't live in Washington, D.C. -- most of us, I suspect -- this is more of a learning opportunity than anything else. For law-and-order liberals like me, I wish nothing but the best for Matt and others of like mind in their push for a safer city.
Mostly, this article reminded me D.C. is a small and unique place -- the data point about how San Francisco supported Trump twice as much as D.C. is amazing.
Yeah, I live right across the river in Arlington - a very liberal city with a progressive prosecutor who I'm not a fan of. But whenever I cross into DC it strikes me that it really is a world apart.
I got caught in the middle of Dupont Circle's pride. So many teenagers fighting, jumping turnstiles, smoking huge blunts, and carrying liquor bottles in the open. It was anarchy. I am too old for that much stimulation.
Oh ya and the worst part, some people subjected their poor dogs to all that.
The number of young people in the District in June 2023 still wearing masks outside (in this heat) is nuts.
Yeah. In Arlington it's down to around 10-15% in grocery stores, and maybe 1 or 2 percent among young people outdoors. Definitely way more in DC.
Beijing's around 5%-8% in stores, I'd say. Cab drivers still mask.
What are the 100 percenters?
ROFLMAO.
I may have to subscribe to BARpod just to listen to this one. Wow.
I mostly feel bad for the kids having their social lives choked off by this. We will get to a point where I think CPS has to start getting involved.
The subtext of this piece that we should dial down civil liberties to a point where we get more gun convictions seems bad. “Schrödinger’s Gun” is a well understood consequence of the fact that our standard of proof is substantially higher than “50% likelihood” so it’s not enough to just limit things to two suspects. Public defenders being as skilled and able to devote as much time as prosecutors is a (rarely practiced) underlying assumption of the adversarial legal system. For wherever you draw the line for the fourth amendment, it’s absolutely crucial that violations disqualify any evidence collected when the line is crossed. Juries are as validly democratic governance as anything else.
There are a lot of dials you can turn for 100% conviction rate on crimes, but there are also reasons that we put the bar for convictions so high, and this post didn’t really grapple with those.
This reminds me of the complaint about sexual assaults not being prosecuted. Its not (or least not just) a patrearchal conspiracy, acquaintance rape is very hard to prove b/c the physical evidence is often similar or identical to consensual sex, which has also been known to occur. Usually the only way tell them apart is testimony of the people involved, which tends to be contradictory, and therefore create reasonable doubt.
We could lower the standard for sexual assault convictions, but then we'd be risking more Type I errors, which the criminal justice system is very much designed to avoid.
The same goes for a lot of"white collar" crime, where we want intent to be a required element (math errors on tax returns should be treated differently than lying on your tax return), but intent is necessarily hard to prove.
OTOH, if you have a dead body with a bullet hole in it, it's usually just a question of figuring out who pulled the trigger.
One of my greatest frustrations with the current left Discourse is the common and frankly lazy refrain that obviously blue-collar crimes like "I stuck a knife in your face and demanded money and it's on tape" are designed to be easier to convict than "fudged stuff on my taxes" crimes.
As if this somehow proves that The Man and The Elite are somehow rigging the system nefariously for their own ends, rather than the fact that sticking a knife in somebody's face is prima facie not okay and sort of embeds the question of intent in the act itself.
It's hard to prosecute white-collar crime because the facts are usually very complex and expertise-intensive, and thus expensive to prosecute, and because the crimes often border on perfectly legal business practices. Those things aren't really in the courts' or prosecutors' control. The courts could be less concerned with protecting ordinary business from criminal liability, but I think that criticism is awfully cavalier with the actual reality of what a criminal prosecution means for a defendant's life.
I disagree that the exclusionary rule is essential to keeping strong fourth amendment protections. In fact it is a lousy mechanism that only very weakly sanctions cops and very strongly rewards actually guilty people.
We should fine or fire cops who do illegal searches, not destroy good evidence.
Yes! This! US goes too far with the "fruit of the poisonous tree" doctrine and way too little to hold cops personally accountable for fuck ups (or worse).
I mean the monkey's paw curling here is that if cops can get fired for any search deemed unconstitutional they are going to stop doing any kind of search or seizure that isn't signed off by a judge, which could have a lot of consequences.
The point is there needs to be a more effective way to motivate them to follow the law. Not every democracy go so far with inadmissibility like the us and they still maintain rule of law and due process.
https://lawcomic.net/guide/?p=1585
Law comic has a pretty good primer on this. It seems like an interesting argument where reasonable people can disagree.
The idea is that throwing out illegally obtained evidence prevents some of the harm that comes from government violating your rights.
That's how Europe does it.
One problem is that, historically, that worked better in theory than in practice. The Supreme Court first applied the exclusionary rule to federal, but not state, prosecutions in 1914 in Weeks v. United States. When the Court finally extended the exclusionary rule to to state prosecutions in 1964 in Mapp v. Ohio, part of the rationale was:
"Significantly, among those now following the rule is California, which, according to its highest court, was "compelled to reach that conclusion because other remedies have completely failed to secure compliance with the constitutional provisions . . . ." People v. Cahan, 44 Cal. 2d 434, 445, 282 P. 2d 905, 911 (1955). In connection with this California case, we note that the second basis elaborated in Wolf in support of its failure to enforce the exclusionary doctrine against the States was that "other means of protection" have been afforded "the right to privacy."[7] 338 U. S., at 30. The experience of California that such other remedies have been worthless and futile is buttressed by the experience of other States. The obvious futility of relegating the Fourth Amendment to the protection of other remedies has, moreover, been recognized by this Court since Wolf. See Irvine v. California, 347 U. S. 128, 137 (1954).",
Note also that this law review article https://repository.law.umich.edu/cgi/viewcontent.cgi?article=3743&context=articles (written, fwiw, by a big name in the criminal procedure field) quotes an NYPD Dep Commissioner as saying: "Before [Mapp], nobody bothered to take out search warrants. [Before Mapp] the U.S. Supreme Court had ruled that evidence obtained without a warrant-illegally if you will-was admissible in state courts. So the feeling was, why bother?"
There are good arguments against the exclusionary rule, but the alternatives are not politically feasible.
Relatively minor point of order with respect to your overall comment, but I don't think that "public defenders being as skilled and able to devote as much time as prosecutors is a (rarely practiced) underlying assumption of the adversarial legal system" -- in particular, the right to a public defender in state criminal trials only dates to 1963 (Gideon v. Wainwright), which far postdates the basic outlines of criminal prosecution in American law. Given the relatively late date of the incorporation of the right to counsel (viz., appointment of a public defender) against the states, combined with the well-known (and generally accepted / considered good) selection effect whereby prosecutors bring the cases they think they're most likely to win, it seems that an assumption of parity between prosecution and defense resources isn't necessarily implicit in the structure of American criminal trials.
The idea of enforcing or, even worse, creating other crimes to create an excuse to search people for guns makes me queezy. At the very least, it seems to violate the spirit of the law. It also results in a system of overcriminalization
The point of the 4th Amendment is that the government shouldn't go looking for a reason to arrest someone, and certainly shouldn't search someone without a reason to think they have evidence of a particular crime on them. The fear is that, absent that protection, the government will start searching people or groups of people to harass them. There ste obviously trade offs to that, it's easier to get away with crimes if the police can't search you at will, but that's the trade off we've made via the 4th Amendment. If you want to change that change it, don't come up with a wierd work-around.
It also results in overcriminization. I've heard people arguing that pot should stay illegal because the smell of pot provides cops with an excuse to search people for evidence of other crimes. Thet is doubly bad. Not only have those cops violated the purpose of the 4th Amendment, but in order to allow them to do so, we've limited the liberty of people to smoke pot if they want to.
"The idea of enforcing or, even worse, creating other crimes"
I'm with you that we shouldn't create other crimes, and we should think twice about the crimes we do start enforcing more stringently but enforcing fare evasion seems reasonable on its own.
It's reasonable on its own, but should it them be an excuse to pat the person down looking for other crimes? Is that actually necessary for enforcing laws against fare evasion, or is it just a pretext?
Also, if it looks like enforcing laws against fare evasion is just a pretext to search and harass people (especially if not done evenly), it undermines the the legitimacy of a legitimate law.
If it's purely pretext yes.
I think the law should have some legitimate benefit that we actually care about. So regardless of whether your search finds something, you need to pursue the fare evasion you searched them for.
I agree that even if it's not pure pretext it has some worrying implications and _could_ lead to a slippery slope of adding more and more infractions for this - I just don't think fare evasion or illegal tags (especially because illegal tags aid in the commission/evasion of enforcement for other crimes) fall there.
I dont think they do either, but I also don't think it is really necessary for the police to search you to give you a ticket.
Make people believe that these are legit laws, by not just using them as a pretext.
It stops being a pretext when someone has broken the law within sight of a police officer. At that point it's highly reasonable to assume they might be breaking other laws too, and should be searched.
Should you be able to go search their house too?
The way the 4A works is you don't just get to search someone because you have a vague notion they may have committed a crime. Generally, you need a particular crime and a reason to think you will find a particular thing when you search them. Usually you also need a warrant.
There are some exceptions to this. The one at issue here is that police can do a search incident to arrest to make sure the person doesn't have a weapon that they can use to resist arrest - basically you dont want the guy in the hakc of the police car or jail cell pulling out a gun. But it's a very limited exception. It doesn't mean that you get to go search their house for evidence of other crimes. If they had a bag with them, but that bag is more than a few feet away when you are arresting them, you don't even get to search the bag. This is because the purpose is safety, not to go fishing for evidence, and a gun in their house, or in a bag they left down the hall because there is no safety justification.
Technically searching someone you are arresting for a turnstile jump doesn't get you this safety search, but if you are arresting them ~so that you can search them~ it really is the tail wagging the dog.
It is a genuine problem that we have lots more highly lethal guns in the hands of Americans than we ever have had before. I think an unfortunate consequence of this is that we have to create new laws and enforce existing ones more stringently to counteract the private arsenal our communities have amassed.
We can’t have the same live and let live approach to “minor” crime that might have flown when few people in the community had these highly lethal weapons.
We live in a society.
I'm always a but skeptical of arguments that center the volumne of guns, because there's little discernible relationship between the volume of guns and the level of crime. This is true over time and between jurisdictions in the US. At best, there's a weak correlation.
Of course, we have way more guns and way more crime than W Europe or Asia, so that link seems strong. But if you zoom out further, we have more guns but less crimes than Latin America and the Caribbean (in general), so all off the sudden other factors are required to explain the relationship and the link seems less strong,
We would have more crime than W Europe or Asia even if we had fewer guns. Americans are maniacs. We already have a higher murder rate for murders committed with only fists.
Yeah, particularly given that I think much of US gun volume comes from individual collectors who own, like, a shitton of guns. America is wealthy, so a gun enthusiast/nut can easily afford to own 27 firearms whereas a similar individual in a poorer country would not.
While there's an obvious massive shift in your odds of shooting someone when you go from owning 0 gun to owning 1 gun, it isn't intuitively obvious that your odds of shooting someone go up meaningfully from there the more you own. I'd love to see some research into whether there's anything here, but if there isn't we really should focus gun reduction on getting people from 1 to 0 rather than trimming some collector back from owning 30 guns to owning 5. The latter will look much bigger in terms of raw gun numbers on paper, but is probably completely useless.
The graph of gun ownership rises while the graph of murder falls.
In DC, at current trends, approximately 1/13 Black men can expect to be murdered and around 1/6 can expect to be shot, non-fatally. Many other urban, low-income, Black neighborhoods have similarly dire statistics.
At those levels it's hard to describe existing levels of gun arrests as over-criminalization
I'm not describing gun arrests as "over-criminalization," I'm describing making a bunch of minor things crimes to justify otherwise impermissible searches "over-criminalization." We should make things crimes on their own merits, not because it makes it easier for police to search people.
This reasoning only works for me if you don't think illegal guns everywhere are bad; if we want the cops to focus on removing illegal guns and we know people breaking minor laws are more likely to have illegal guns, then of course it's a good excuse to pat them down! As long as there is an initial crime I can't imagine how that would violate the 4th amendment or the spirit of the law
The search is supposed to be to find something you reasonably suspect is there, not a fishing expedition based on population demographics. Its why you can't search everyone wearing a Greatful Dead shirt for drugs and why getting stopped for a turnstile jump doesn't let them search your house.
That's why i said search people already caught committing a crime and not "search black people".
Should police be able to search your house or car for contraband if you jump a turnstile?
Is anyone suggesting that police should do that? I'm not going to pretend that getting a pat down is the same as them turning your house or car upside down. Do you have anything besides thinking searching people is unconstitutional?
No one is suggesting it because it is clearly unconstitutional. But the logic thet jumping a turnstile is cause for cops to search you b/c it shows you might be engaged in other crimes leads to that conclusion.
In fact the constitution justification for cops to search someone after they are caught jumping a turnstile is for the safety of the officers, so they don't have to worry about your having a weapon. Usually the search is limited to your "wingspan." If you dropped your backpack 6 feet away, they can't search it.
Arguments that cops should stop more turnstile jumpers so they can search more people just proves that the safety rationale is BS.
I am astounded at the amount of pushback you're getting on this. I had no idea the 4th amendment was so controversial, though I guess it shouldn't really be all that surprising given the diversity of attitudes toward the 1st and 2nd.
Honestly, I'm not 100% on board with it myself, just in a different way. Evidence suppression is a weird way to safeguard the right since it literally only helps people who are guilty. It isn't even like the right against self-incrimination, where there's a lot of reason to believe forced confessions are bad evidence - if you have an illegal gun on you, you were breaking the law.
However, I'm open to thr idea that evidence suppression is the least-bad way to handle this (money damages won't really do much).
I just don't like the pretextual search idea.
There is a certain type of progressive that thinks that punishing people for quality of life crimes and infractions against civil society is inherently racist. The DC city council has sympathies with these views. It makes me roll my eyes when they work to make it hard to prosecute shoplifting, fare evasion, and defund bus and bike infrastructure to make buses they don't enforce fare collection on free (while not resolving frequency issues.) Oh and the budget shortfalls.
Sigh.
I don’t think very many people believe ‘punishing people for quality of life crimes and infractions against civil society is inherently racist.’ The folks you’re presumably talking about have a more specific to objection to (a) the selective enforcement of those laws to target particular groups, (b) the inconsistency with which those offenses are punished and (c) the insistence that aggressive order maintenance have some effect on overall crime without good evidence supporting that belief.
There actually are some people who actually do think that “quality of life”-type laws only exist as a pretext for harassing members of minority groups, but I suspect that the viewpoint is pretty rare among people who wield actual power; if you look hard enough you can find vocal advocates for pretty much any political opinion.
Some people think anti-littering laws are an imposition on personal liberty.
Wait until you hear people from New Hampshire. Live free or die!
Those people are buttheads.
I think the adjacent belief is that quality of life rules are not per se racist but any deviation from the general population's racial makeup in enforcement is proof of racist intent coupled with the belief that racist enforcement is worse than no enforcement at all.
I'm relatively ok with quality of life crimes (though many could probably be violations). I'm less ok with criminalizing random stuff as a mechanism to get around the 4th Amendment, especially when those laws are then selectively enforced.
Why is anyone stopped for a broken tail light? If the issue is the tail light, send the owner of the car a letter reminding them to fix it. Maybe if they already got a letter, send them a fine with the letter. Otherwise, it's just an excuse to harass people and perform searches you otherwise aren't permitted to do.
“Why is anyone stopped for a broken tail light?”
Same reason drivers are stopped for speeding: It’s unsafe.
That's why we require you to have functional tail lights, but doesn't explain why you need to be stopped. It isn't like you aren't then allowed to drive away with the broken tail light. Send a letter to the car owner.
I want the police to make sure the driver at least has insurance before allowing him to drive away to get the light repaired.
Those two things have nothing to do with eachother. You are basically acknowledging the stop is pretextual.
Also, the DMV generally knows if you have insurance. Most states require insurance companies to let them know who has insurance and when it is cancelled.
No, I want unsafe and/or uninsured vehicles to be taken off public roads.
DC courts are not Article III courts. They are akin to territorial courts created under federal law; they're not subject to Article III. I don't think there is any constitutional obstacle to setting them up to be appointed exclusively by DC government like courts elsewhere in the country. There's a recent discussion of this issue in the Supreme Court's 2020 decision Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC, https://www.supremecourt.gov/opinions/19pdf/18-1334_8m58.pdf.
I don't think this post correctly understands what is going on in the T.W. case. The police stopped, interrogated, and then searched T.W. T.W. consented to the search, but the court primarily addressed the antecedent question of whether, at the time of consent, T.W. had already been "seized" (in essence, whether a reasonable person in T.W.'s situation would have felt free to leave). The government conceded that if there was a seizure, it was unlawful (the police had no lawful basis to seize T.W.). There's a general principle that evidence the government discovers as a consequence of a violation of Fourth Amendment rights can be suppressed. And criminal procedure is not my area of expertise, but it does seem pretty clear to me that a person in these circumstances (surrounded by police officers and interrogated about possessing a gun) would not feel free to unilaterally terminate the encounter.
Curious people should read the Proctor decision (correct link here: https://www.dccourts.gov/sites/default/files/2017-10/15-CF-309%20Amended%20Opinion.pdf) but it's also somewhat more complicated than this post suggests. Among other things, it wasn't "Schrodinger's illegal handgun"--Ms. Johnson told the police the handgun was hers pre-trial, and she was acquitted of the unregistered firearm and ammunition charges because the prosecution didn't lay the proper foundation for the admission of registration certificates. That wasn't the only example of sloppy work by the government either (the police officer who found the handgun dumped the CVS bag's content on the floor but there was no testimony that there was nothing else on the floor, which made the court skeptical of the testimony that the mail was in the bag beforehand).
There's a Second Amendment backdrop here too that would be worth keeping in mind: I am not sure that DC could ban non-felons from keeping a firearm in their home (the core right protected in Heller) simply because they live with a felon.
Do you happen to know what the lack of foundation was? (e.g. just the absence of a sponsoring witness?) It seems odd to acquit on the basis of a business records foundation objection given the heavy FRE bias in favoring of admitting them.
I was also curious about this but the decision doesn't say. I agree that it doesn't seem like a hard hearsay problem for the government so not sure how it got messed up.
I tried searching in the DC Superior Courts page (which is a bit of a mess to navigate) but I think it may have been an in-court objection without a readily publicly-accessible hearing transcript. Bother. Also: their CAPTCHA implementation is too hard for actual humans to do, which seems like it makes its susceptibility to computers rather moot...
I am forever vexed by "a lot of laws that won't be enforced" style progressivism. Pisses off everyone involved and makes cities exponentially more dangerous, for absolutely no gain
A post about guns is the perfect opportunity for everyone to talk in circles around each other. 🙂
There is a strain of activist thought that rejects negative reinforcement; ie, it holds that society should refrain from punishing bad behavior in favor of incentivizing good behavior. I do not share this belief.
Carrying a gun unlawfully is a bad thing. If you do a bad thing, you become a bad person, and you should be punished for your badness. Open and shut.
You know some people are just bad at being people too.
Or just make it legal to carry a gun, that way you eliminate all those bad people, which is even better!
Now that's just pure applesauce.
If simply not following a law is what makes a bad person, it follows that if there is no law, there is no bad person. That's your logic, I simply stated the next step. Maybe you want to revise your statement?
Absolutely not! I will not be fazed by the Argument for Anarchy™! There are natural laws. We will disagree on what those natural laws might be, and such disagreement is what positive law exists to resolve. But my sentiment is less rooted in endless debate about laws and more rooted in my conviction that negative reinforcement is a good and valuable tool that should be used to enforce expectations.
Ahh that sweet, sweet, natural law. I will point out that self defense and bodily autonomy are about as natural as law gets, and that one should not give an order which one does not believe will be followed. I don't have qualms about negative reinforcement, but defining a good person by their obedience to bad laws is a fools game.
I like Matt's writing a lot, and I value this publication, but I think he needs to find an attorney or former attorney with criminal law experience to talk through this stuff with him if he's going to analyze or rely on caselaw. I'm just a paralegal, but his description of TW and Proctor doesn't jibe with the opinions as I read them.
I think every attorney on this thread agrees.
The explanation of the CVS bag case makes it sound like there is no such thing as constructive possession in DC. (This is a doctrine that says everybody who has opportunity to possess a contraband item can be charged and convicted for possessing it. Items in trunks are a difficult issue for that doctrine in all jurisdictions though, since it’s not clear everyone in a car has an “opportunity” to grab a gun in the trunk that they might not know about or have easy access to). I suspect but don’t know for sure that this isn’t accurate and that constructive possession is still a thing in DC.
It sounds more to me like a case getting blundered, and law enforcement using it as an excuse in other situations. (This happens plenty as well.) Good lawyering by the defense attorneys and a blunder in timing by the prosecutors seems like the problem to me. They lost all leverage on the co-defendant woman before she testified, which freed her up to then point the finger at herself and put reasonable doubt on her boyfriend. Any case where that happens is going to become a tougher slog for prosecutors (though here in Kentucky, I will grant that a jury has a greater chance of just choosing not to believe the girlfriend).
I agree with the overall point about everybody needing to coordinate better as to what they want, and to proactively pass laws that accomplish those goals. But I also suspect there is a police union contract coming up or something.
Personally the idea that a driver with a gun legally in his waistband could somehow go to jail for the pistol in the trunk is totally bananas. Similarly that a law abiding person can't legally own a gun if anyone living in their house is a prohibited person. Matt is right to identify that the original sin from which all of this flows as DCs totally broken permitting system which went from blatantly, entirely, disregarding the 2nd amendment to only aggressively violating it in spirit. As long as your system is premised on making it as hard as possible for people to exercise their rights this is the outcome you should expect. The solution is a permitting scheme that promotes rigorous enforcement by making it accessible to law abiding persons in a way that makes it truly indefensible not to get one.
I'm struggling to understand why it is "totally bananas" that someone might legally possess a handgun and also illegally possess a handgun.
I'm not familiar with the facts of this case in particular, but it doesn't seem like your analysis relies on the facts, either. Instead, if I'm understanding you correctly, you see no reasonable circumstance under which someone can both legally possess a handgun and illegally possess a handgun.
I can think of several circumstances where it makes sense to me that someone might legally possess an item and also illegally possess an item:
* perhaps the second item was stolen, by this individual or by a third party
* perhaps the person followed proper procedures to obtain and register the first item but did not do so with the second
* perhaps the second item itself is illicit in the jurisdiction the person is in
These seem pretty straightforward to me, so it's hard for me to see where you are coming from. But maybe I'm not understanding your position.
I don’t think that’s the OP assertion at all. ‘A person having a legal firearm doesn’t make them criminally liable for an illegal one nearby’ is not remotely the same thing as ‘There is no reasonable circumstance in which a person can legally possess handgun and illegally possess a firearm.’
It seems to me that OP's focus has on been on the driver of the car being legally allowed to possess a firearm, meaning that he can't possibly be held criminally liable for an illegal firearm in the trunk of the car he was driving. See his reply above, which focused on licensing.
But I might still be misunderstanding him! This is a very real possibility. That's why I asked.
Possession =/= ownership. A licensed person can possess any firearm in the class of firearm the license covers. The question of the legal ownership status of the firearm is a separate one that is distinct from my commentary.
I believe you are more knowledgeable on this subject than I am.
If the firearm in the trunk was not registered, wouldn't that make the question of licensing moot?
Possessing an illegal firearm is surely illegal, no?
So, this actually gets pretty in the weeds. Typically in the US it is not the case that a pistol is actually "registered" anywhere. That's kind of a myth. Some specific localities (NYC. Maybe DC, not sure given how many times they've been forced to revise their permitting system since Heller) try to enforce fairly constitutionally dubious schemes where you have to like get a new permit for each firearm you purchase, or maybe your carry permit only covers certain guns you might own. We'd really need more information about the status of this guy's specific permit and whatever registration requirement the courts currently are or aren't allowing to be in force in DC to actually evaluate the situation rigorously. Fundamentally all of those laws are extremely vulnerable to appeal in the current legal environment so it's in no way surprising that even if there is some unusual technical way a permitted gun owner might be in possession of an "illegal" gun that it wouldn't get charged. And that's really the moral of the story, trash laws don't get enforced. If there was evidence the gun was stolen, or the driver was a prohibited possessor it would probably be different.
Thanks for this information.
Your response prompted a little Googling on my end, since I just took it as an article of faith that the Washington Post meant something when they said that one gun was registered and the other wasn't. I found this site, which indicates that all firearms in the District are legally required to be registered:
https://giffords.org/lawcenter/state-laws/registration-in-washington-dc/
My Googling has also confirmed what you pointed out, which is that this kind of requirement is quite rare in the US. I live in New York City, and while I've never possessed a firearm here in NYC, I am vaguely familiar with the registration requirements (at least, I know there are registration requirements). I knew NYC took a stricter approach to firearm regulation than most of the rest of the country, but I was not aware how much stricter.
I appreciate the engagement!
Yea, this is exactly the sort of thing has has kept the district tied up in court for like 2 decades and is probably doubly so since Bruen last year. Stringent enforcement of that is really gonna present major legal headaches for them.
Is the shit in the trunk of my car any less mine than my wallet?
If he's in legal possession of the gun in his waistband a law that says his possession of the gun in the trunk is illegal is legitimately asinine.
I mean... I have to register the tags for *both* of my cars, and update *both* my passport and my driver's license for them to be useful, and file taxes for *both* of my household's incomes, and...
I can keep going here, this ain't complicated.
Possession =/= ownership. This is like saying my license doesn't cover me driving my neighbor's car.
I mean, it’s clearly more akin to saying “my vehicle’s registration doesn’t also apply to my neighbor’s car.”
Just up and say “I don’t like that the law requires permits for each firearm” instead of making up bullshit analogies.
If libertarians actually displayed a scrap of intellectual honesty in distinguishing between normative and descriptive claims maybe the rest of us wouldn’t find you all to be so damned obnoxious.
My specifically descriptive claim about permitting of individual firearms rather than possessors is that it is unusual and constitutionally infirm, but if you happen to live in one of those jurisdictions one not openly flout said laws unless one's intent is to create a test case for litigation. Especially if you happen not to be the sort of person likely to slide on that type of Shrodinger's felony. I stand by the normative claim that it is an absolutely bananas thing to charge and only really gets charged as a BS means of coercing plea deals from people they aren't actually able to stick more legitimate charges to.
I get where you're coming from here. It is entirely reasonable to assume that an item found in the trunk of your car while you are driving it is yours, but possession of an unregistered pistol when you are licensed to possess a pistol should be considered a minor administrative offense, assuming it's a normal pistol and not an NFA item or something like that. Also, shall-issue should have been explicitly written into the constitution.
I'm going to have to disagree that having a girlfriend should be a get-out-of-jail-free card for a felon in possession, though.
When I lived in the District I had a firearms license. But definitely there were significant hoops. You are of course correct on the merits. I would even say that it is highly likely that a driver with a legal gun is not the owner of an illegal gun in the trunk (potential accessory liability is another matter).
I have a DC CCW and I think the bigger practical barrier is the cost of the process.
The starting point for the piece is about the high murder rate in DC. Do you think making it easier to own a gun in DC will reduce the murder rate? If not, then I don’t think it makes sense to consider the permitting system as being the ultimate cause (“original sin”) of the problem. Maybe it’s the proximate cause of the legal headaches, but then you’re still left with an abnormally high murder rate.
The broken permitting system makes it harder to impact the murder rate through enforcement. The availability of permitted handguns has essentially zero correlation with the homicide rate.
>The availability of permitted handguns has essentially zero correlation with the homicide rate.
This is only true if there are almost no permits. Once permitting increases, then you affect the secondary black market.
Ok. This is where I failed at the necessary degree of specificity. The number of persons with a permit to carry a handgun has essentially zero correlation with with homicides. In some broad sense the commerce in handguns enables the straw purchases and thefts that supply most of the guns used in homicides, which is a reasonable target for enforcement (the straw purchases). Broadly acting to constrain the legal commerce in arms violates the constitution and would require an amendment to meaningfully enable.
I disagree on the constitutional question--what’s all that verbiage about a well-regulated militia? Just some irrelevant stream-of-consciousness stuff? That said, you might be right that changing the permitting rules would be good on the merits, but I don’t see how increasing permits will decrease murders, and so this whole discussion seems irrelevant to the motivation for the piece.
The militia clause is a clear statement of the intent of the amendment. Maintaining a free state requires that effective combat capacity be retained by the citizenry. It exists to promote both national defense and the separation of powers.
I take some solace knowing that as the ownership of legal firearms becomes increasingly more concentrated in a handful of mostly batshit people (I love my dad and grandfather but they’re completely fucking insane), that’s almost inevitably where the courts will eventually end up, and then I’ll be able to ditch my concealed carry permit and weapon because there’ll be no need.
I’ll be like 80, but better than never.
https://supreme.justia.com/cases/federal/us/554/07-290/index.pdf
Can we believe these at the same time?:
1. Illegal gun possession should be taken seriously.
2. But that does not necessarily require prison time for cases of just possession.
3. Some cases are messy and hard to prosecute because of guilt beyond a reasonable doubt, like the gun in a house where 4 people live, and that's just too bad.
4. Public defenders should be good professionals and adequately funded everywhere.
1 and 4 and 3 with some tweaking. The owner/renter of the house could be held responsible for allowing storage of an unlicensed gun. THAT probably should just be a stiff fine rather than prison.
Hey - I have a dashboard / visualization webpage with a lot of relevant graphics if you want to know what's been happening with homicide in DC and cities like it.
https://theusaindata.pythonanywhere.com/avoidable_deaths_after2020
The above link is a new addition that looks at premature deaths like homicide, suicide, ODs, traffic accidents and how much they've gone up since 2018-2019. You can view by age, race, gender, state and a couple more. If you look by state, you can see that DC has had a huge 54% rise across all categories and it's the 2nd worst in the nation. DC has also led the nation in the rise in fatal traffic accidents, with a 42% rise.
And then in this one: https://theusaindata.pythonanywhere.com/murder_trends
you can see the last 45 years in reported murder data and clearance rates for any county in the country. Unfortunately, if you type in DC you'll see it has especially bad issues even reporting the data to the FBI, but that's interesting in itself: