It's not just prosecutorial discretion
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.
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.
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."
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.
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.
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.
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.
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.
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.
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.
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.
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.
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: