FWIW the Roberts Court likely would have decided that 4th Amendment case the same way. It's obviously a seizure and apparently suspicionless, which means suppression. And the CW is that the Court is quite pro Fourth Amendment, see e.g. Carpenter v. US from 2018 or anything written about it. Gorsuch and Barrett are pro 4th too, apparently. Those complaints are over a decade old. The only way to change rulings like that would be to amend the Constitution, haha, or pack the court. And it'd be difficult to find Justices who are anti 4th Amendment but not ultraconservative.
Anyway there are worse things in the Constitution - the 5th Amendment no self-incrimination right is harder to justify, for example.
"interpersonal disputes conducted with guns are much more deadly than disputes conducted without guns, so strongly discouraging people from carrying guns is a good way to reduce lethal violence."
Johnny Cash knew it years ago:
"Don't take your guns to town, son. Leave your guns at home, Bill. Don't take your guns to town."
(For those not familiar with the song: Young man disregards his mother's advice, takes his guns to town with him for the first time. An older man at a saloon laughs at him; young man gets angry, grabs his gun, but older man is quicker on the draw, and he shoots and kills him. Young man's dying words are, "Don't take your guns to town.")
A good compromise on this that'd make people like Matt happy who want less guns and as a result, less crime and murder and make many people in these communities happy who don't want their cousins, brothers, and co-workers going to jail for carrying a gun is pretty simple, and it also pushes the actual long-term goal of gun control advocates - ie. less guns in total circulation.
Instead of a jail term or a fine, the sanction for getting caught with an illegal gun is simple. You give up that gun. Maybe a nominal fine as well, or some agreement where your personal home can be searched for more weapons, but since the issue, frankly, is easy access to guns, the way to help with that in a way that doesn't lead to pushback is this.
But I don't know why gun control advocates care about guns in circulation since there's not much correlation, across time or space, between guns in circulation and gun crime. It would be like trying to increase literacy by printing more books.
I agree this is a start, but aren't we already here? I assumed that police didn't give back illegal guns taken, even if they were not able to press charges for them, but I suppose I might be wrong.
This still ultimately won't work that well as guns are cheap, with a quick internet search telling me that you can get a cheap handgun for a few hundred, perhaps under $100 if you're lucky. Unless you're doing a very large number of searches (which comes with its own issues), criminals should be able to restock seized guns without too much trouble.
Sorry, no personal experience with this, but I do presume guns (illegal or legal) aren't just dropped into the unsuspecting arms of iinnocent bystanders like some random fliers, yes? Those "cousins, brothers etc." preusmably paid signficant amounts of money to get a hold of these illegal guns for some reason, no? Two options: either they had a legitimate reason to want a gun, and if so we either need to eliminate that legitimate need (e.g. fear for personal safety) or make it easier to get a gun legally. Alternatively they got one precisely with criminal activity in mind, in which case, I, for one, would very much like to see them punished. How does your solution address either scenario?
I mean, since we only have Minority Report-style screens, not Minority Report precogs, I'm OK with just getting rid of the gun, instead of punishing somebody for something they won't do know once they no longer have the gun.
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 presumptively illegal gun should be impounded for 30 days. Then if the weapon has a legal, registered owner, they can gather up their documents and go fetch the weapon. If no legal owner claims the weapon it should be destroyed.
Whenever the topic of crime and safety in DC comes up, it's always worth pointing out how truly horrific social safety conditions are for Black men in DC. In 2021, 2,337 Black men died of all causes. A full 7.5% of those were homicide deaths. 12.5% of all deaths were a drug overdose, and another 10% were other unnatural causes like alcohol poisoning, traffic accidents or suicides.
There are many tradeoffs between freedom and safety inherent in any discussion of the legal or policing system, and some genuinely challenging issues of fairness. But I'm not sure the progressive side is really aware of the full extent of the social costs of holding police and prosecutors to the highest possible standards.
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
I don't think the D.C. judicial selection process sounds *that* unusual. Obviously the fact that POTUS officially makes the selection is unusual, but there are states where the Governor defers a lot to a nominating commission. I believe Maryland is one, where the members of the commission are just a bunch of local lawyers no one's ever heard of.
Whatever the case may be, you definitely don't want to be electing trial judges. That way lies madness (lots of states do it though). Probably should just give Bowser veto power, not just a seat on the commission.
As for the "four guys two guns" situation - can any criminal lawyers out there comment on whether that's unusual? What do other states do in situations like that?
In any jurisdiction “four guys, one illegal gun without prints or DNA” is going to be a tough slog for the prosecution. Sure you could give one of them immunity and make him testify but then the guy he fingers will assert that you gave immunity to the perp. Still the guy with the legal gun is probably the least likely to be guilty so you could give him immunity and see what happens.
I'm not sure what you mean. This scenario is rarely going to be an appellate issue as a. the case isn't going to go to trial or b. it's going to be an acquittal. If you mean cases where they give one person immunity and compel the testimony, happens all the time.
I would think there might be a case where a defendant was convicted on similar facts and then successfully (or unsuccessfully) challenged the conviction on appeal on grounds of insufficient evidence of possession. I get that it would be a rare situation but there are 50 states out there, and if cases like this typically don't go to trial, presumably some court(s) somewhere established a precedent some years ago.
Maybe if there's a law student with a free Westlaw account reading this, you can take a break from studying and run some searches for us.
Matt, you are mistaken. DC Courts are “Article I” courts, making them technically a legislative agency. Congress could take power away from the President to be involved with the nominations and it would be constitutional (unlike for Article III judges).
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.
A lot of court systems in large metros are tilting more and more towards defendants. There is still this perception (whether driven by popular culture or certain cases that make national news) that there are swathes of people being wrongly convicted of crimes.
I mean...It’s a matter of perspective as to what constitutes a “swathe” of people! But in many criminal cases, no matter the jurisdiction:
1. Prosecutors will charge with the harshest crime they think they can get to hold up, AND will charge with something that is a stretch, for purposes of negotiation if nothing else
2. I’ve had relatively few clients who I thought were “innocent” - as in, they literally did nothing wrong but got charged anyway -- but how many is too many? 5%? 1%? I’ve personally had thousands of clients and 50-100 who I get to lose sleep over.
3. I’ve had tons of clients - the majority for sure - for whom the punishment they ended up receiving felt harsh once you really knew what had taken place. So is that a “wrongful” conviction?
Most people charged with something end up convicted of something. If someone is completely innocent, even a “pretrial diversion” or a “deferred prosecution” (basically a dismissal that is time delayed to make sure no new offenses are committed) are in some sense a bad result, right? The vast majority of people I represented who I believe were innocent are the same as my clients writ large -- they got convicted of something more often than not. Some kind of plea deal to a lesser charge with probation, or a diversion/time-delayed “dismissal.” An outright dismissal is so rare bc prosecutors have to save face. Going to trial is the “fun” part as an attorney, but you are playing with people’s lives. So it’s options 2 and 3 for most of them. (And a plea bargain IS a conviction, but I assume you meant 3 to refer to a conviction at trial.) Trials in general are so rare, so the vast majority of people end up in category 2.
As an additional data point from a different jurisdiction with different policies:
I practice in a different jurisdiction with slightly different laws: here, open carry is legal but concealed carry requires a permit. I've represented many defendants accused of carrying a concealed gun without a permit which here, like in DC, is a misdemeanor.
Our local DA has essentially a no-drop policy on these charges. So there is basically no discretion. All of these get prosecuted, although if someone has a clean enough record, and they weren't a jerk to the police officer who charged them, usually they can get a deferred prosecution agreement where the case gets dismissed eventually. Virtually always, though, they will have to give up the gun as a part of the agreement.
Our judges here are, like our DA, elected officials.
I've represented many defendants charged with carrying concealed. Many of these go to trial, since the trial penalty is not high (usually it's going to be unsupervised probation whether you plead or are found guilty) and the DA is only very rarely going to outright dismiss.
It's not impossible to win these trials, but it's not easy either. I would say not many of the cases I've had would be covered by the holdings in the cases mentioned. And I don't think it's controversial that "gun in the trunk, we don't know/can't prove whose it is" would not lead to a conviction. Even if a legislature tried to make having a gun in the trunk a strict liability offense (that is, you're guilty even if you didn't know it was there or had no control over the gun), I'm not sure due process would allow it. At the very least I think courts would make every effort to read some sort of knowledge requirement into the statute, so the legislature would have to make it very clear that they are creating a strict liability offense.
The more common reason that cases get dismissed is not that there was some constitutional violation but that the State can't get their officers to come to court to testify. Maybe they'll be able to get a continuance once or twice, but they often don't figure out in time which officers they need to make the case, or the officers are unavailable for whatever reason. Of course once officers retire or move or whatever, it's going to be difficult to get them to court to testify, especially on low-level misdemeanors.
I don't know what percentage of carrying concealed charges lead to a conviction in my jurisdiction, but I would guess it's at least 50% (if you include those deferred prosecution agreements as convictions, which they kind of are).
As an aside, IIRC Public Defender Services (PDS), the "gold standard" mentioned in the post, only takes felony cases, so would only be representing defendants charged with this carrying without a license offense if they also had attached felonies.
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.
Biden just nominated two prosecutors and a public defender to D.C. Superior Court https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/28/president-biden-names-thirty-fifth-round-of-judicial-nominees-and-one-new-nominee-to-serve-as-u-s-attorney/
FWIW the Roberts Court likely would have decided that 4th Amendment case the same way. It's obviously a seizure and apparently suspicionless, which means suppression. And the CW is that the Court is quite pro Fourth Amendment, see e.g. Carpenter v. US from 2018 or anything written about it. Gorsuch and Barrett are pro 4th too, apparently. Those complaints are over a decade old. The only way to change rulings like that would be to amend the Constitution, haha, or pack the court. And it'd be difficult to find Justices who are anti 4th Amendment but not ultraconservative.
Anyway there are worse things in the Constitution - the 5th Amendment no self-incrimination right is harder to justify, for example.
"interpersonal disputes conducted with guns are much more deadly than disputes conducted without guns, so strongly discouraging people from carrying guns is a good way to reduce lethal violence."
Johnny Cash knew it years ago:
"Don't take your guns to town, son. Leave your guns at home, Bill. Don't take your guns to town."
(For those not familiar with the song: Young man disregards his mother's advice, takes his guns to town with him for the first time. An older man at a saloon laughs at him; young man gets angry, grabs his gun, but older man is quicker on the draw, and he shoots and kills him. Young man's dying words are, "Don't take your guns to town.")
A good compromise on this that'd make people like Matt happy who want less guns and as a result, less crime and murder and make many people in these communities happy who don't want their cousins, brothers, and co-workers going to jail for carrying a gun is pretty simple, and it also pushes the actual long-term goal of gun control advocates - ie. less guns in total circulation.
Instead of a jail term or a fine, the sanction for getting caught with an illegal gun is simple. You give up that gun. Maybe a nominal fine as well, or some agreement where your personal home can be searched for more weapons, but since the issue, frankly, is easy access to guns, the way to help with that in a way that doesn't lead to pushback is this.
That's just the status quo in most places.
But I don't know why gun control advocates care about guns in circulation since there's not much correlation, across time or space, between guns in circulation and gun crime. It would be like trying to increase literacy by printing more books.
I agree this is a start, but aren't we already here? I assumed that police didn't give back illegal guns taken, even if they were not able to press charges for them, but I suppose I might be wrong.
This still ultimately won't work that well as guns are cheap, with a quick internet search telling me that you can get a cheap handgun for a few hundred, perhaps under $100 if you're lucky. Unless you're doing a very large number of searches (which comes with its own issues), criminals should be able to restock seized guns without too much trouble.
Sorry, no personal experience with this, but I do presume guns (illegal or legal) aren't just dropped into the unsuspecting arms of iinnocent bystanders like some random fliers, yes? Those "cousins, brothers etc." preusmably paid signficant amounts of money to get a hold of these illegal guns for some reason, no? Two options: either they had a legitimate reason to want a gun, and if so we either need to eliminate that legitimate need (e.g. fear for personal safety) or make it easier to get a gun legally. Alternatively they got one precisely with criminal activity in mind, in which case, I, for one, would very much like to see them punished. How does your solution address either scenario?
I mean, since we only have Minority Report-style screens, not Minority Report precogs, I'm OK with just getting rid of the gun, instead of punishing somebody for something they won't do know once they no longer have the gun.
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 presumptively illegal gun should be impounded for 30 days. Then if the weapon has a legal, registered owner, they can gather up their documents and go fetch the weapon. If no legal owner claims the weapon it should be destroyed.
Whenever the topic of crime and safety in DC comes up, it's always worth pointing out how truly horrific social safety conditions are for Black men in DC. In 2021, 2,337 Black men died of all causes. A full 7.5% of those were homicide deaths. 12.5% of all deaths were a drug overdose, and another 10% were other unnatural causes like alcohol poisoning, traffic accidents or suicides.
There are many tradeoffs between freedom and safety inherent in any discussion of the legal or policing system, and some genuinely challenging issues of fairness. But I'm not sure the progressive side is really aware of the full extent of the social costs of holding police and prosecutors to the highest possible standards.
What does it mean to “paper” a case?
To actually file charges in court by the prosecutor.
Great reporting, thank you!
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
I don't think the D.C. judicial selection process sounds *that* unusual. Obviously the fact that POTUS officially makes the selection is unusual, but there are states where the Governor defers a lot to a nominating commission. I believe Maryland is one, where the members of the commission are just a bunch of local lawyers no one's ever heard of.
Whatever the case may be, you definitely don't want to be electing trial judges. That way lies madness (lots of states do it though). Probably should just give Bowser veto power, not just a seat on the commission.
As for the "four guys two guns" situation - can any criminal lawyers out there comment on whether that's unusual? What do other states do in situations like that?
In any jurisdiction “four guys, one illegal gun without prints or DNA” is going to be a tough slog for the prosecution. Sure you could give one of them immunity and make him testify but then the guy he fingers will assert that you gave immunity to the perp. Still the guy with the legal gun is probably the least likely to be guilty so you could give him immunity and see what happens.
That sounds right. Do you know of any good case cites from other states?
I'm not sure what you mean. This scenario is rarely going to be an appellate issue as a. the case isn't going to go to trial or b. it's going to be an acquittal. If you mean cases where they give one person immunity and compel the testimony, happens all the time.
I would think there might be a case where a defendant was convicted on similar facts and then successfully (or unsuccessfully) challenged the conviction on appeal on grounds of insufficient evidence of possession. I get that it would be a rare situation but there are 50 states out there, and if cases like this typically don't go to trial, presumably some court(s) somewhere established a precedent some years ago.
Maybe if there's a law student with a free Westlaw account reading this, you can take a break from studying and run some searches for us.
Matt, you are mistaken. DC Courts are “Article I” courts, making them technically a legislative agency. Congress could take power away from the President to be involved with the nominations and it would be constitutional (unlike for Article III judges).
https://code.dccouncil.gov/us/dc/council/code/sections/11-101
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.
A lot of court systems in large metros are tilting more and more towards defendants. There is still this perception (whether driven by popular culture or certain cases that make national news) that there are swathes of people being wrongly convicted of crimes.
I mean...It’s a matter of perspective as to what constitutes a “swathe” of people! But in many criminal cases, no matter the jurisdiction:
1. Prosecutors will charge with the harshest crime they think they can get to hold up, AND will charge with something that is a stretch, for purposes of negotiation if nothing else
2. I’ve had relatively few clients who I thought were “innocent” - as in, they literally did nothing wrong but got charged anyway -- but how many is too many? 5%? 1%? I’ve personally had thousands of clients and 50-100 who I get to lose sleep over.
3. I’ve had tons of clients - the majority for sure - for whom the punishment they ended up receiving felt harsh once you really knew what had taken place. So is that a “wrongful” conviction?
"as in, they literally did nothing wrong but got charged anyway"
Anything you care to provide about, of those "innocent" were:
1) Charged but acquitted/dropped
2) Charged and plea bargained (for something they didn't do)
3) Charged and convicted
#1 isn't _great_ but that seems particularly impossible to avoid.
Most people charged with something end up convicted of something. If someone is completely innocent, even a “pretrial diversion” or a “deferred prosecution” (basically a dismissal that is time delayed to make sure no new offenses are committed) are in some sense a bad result, right? The vast majority of people I represented who I believe were innocent are the same as my clients writ large -- they got convicted of something more often than not. Some kind of plea deal to a lesser charge with probation, or a diversion/time-delayed “dismissal.” An outright dismissal is so rare bc prosecutors have to save face. Going to trial is the “fun” part as an attorney, but you are playing with people’s lives. So it’s options 2 and 3 for most of them. (And a plea bargain IS a conviction, but I assume you meant 3 to refer to a conviction at trial.) Trials in general are so rare, so the vast majority of people end up in category 2.
Yes, I did mean conviction at trial for #3.
Thanks for the info.
As an additional data point from a different jurisdiction with different policies:
I practice in a different jurisdiction with slightly different laws: here, open carry is legal but concealed carry requires a permit. I've represented many defendants accused of carrying a concealed gun without a permit which here, like in DC, is a misdemeanor.
Our local DA has essentially a no-drop policy on these charges. So there is basically no discretion. All of these get prosecuted, although if someone has a clean enough record, and they weren't a jerk to the police officer who charged them, usually they can get a deferred prosecution agreement where the case gets dismissed eventually. Virtually always, though, they will have to give up the gun as a part of the agreement.
Our judges here are, like our DA, elected officials.
I've represented many defendants charged with carrying concealed. Many of these go to trial, since the trial penalty is not high (usually it's going to be unsupervised probation whether you plead or are found guilty) and the DA is only very rarely going to outright dismiss.
It's not impossible to win these trials, but it's not easy either. I would say not many of the cases I've had would be covered by the holdings in the cases mentioned. And I don't think it's controversial that "gun in the trunk, we don't know/can't prove whose it is" would not lead to a conviction. Even if a legislature tried to make having a gun in the trunk a strict liability offense (that is, you're guilty even if you didn't know it was there or had no control over the gun), I'm not sure due process would allow it. At the very least I think courts would make every effort to read some sort of knowledge requirement into the statute, so the legislature would have to make it very clear that they are creating a strict liability offense.
The more common reason that cases get dismissed is not that there was some constitutional violation but that the State can't get their officers to come to court to testify. Maybe they'll be able to get a continuance once or twice, but they often don't figure out in time which officers they need to make the case, or the officers are unavailable for whatever reason. Of course once officers retire or move or whatever, it's going to be difficult to get them to court to testify, especially on low-level misdemeanors.
I don't know what percentage of carrying concealed charges lead to a conviction in my jurisdiction, but I would guess it's at least 50% (if you include those deferred prosecution agreements as convictions, which they kind of are).
As an aside, IIRC Public Defender Services (PDS), the "gold standard" mentioned in the post, only takes felony cases, so would only be representing defendants charged with this carrying without a license offense if they also had attached felonies.
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.
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.
You know some people are just bad at being people too.