Articles Tagged with DC gun laws

This is the final part of a three part series on DC gun laws.  In the first part, I discussed the current state of DC gun laws and how its important to challenge current gun charges on the basis of the law’s unconstitutionality.  The second part discussed the process for attempting to withdraw a guilty plea on a gun conviction under the District’s old law and weighed the pros and cons of trying to withdraw a guilty plea.  This final part discusses the class action lawsuit filed by Scrofano Law PC and the Law Office of William Claiborne.

In Smith et al v. District of Columbia, we argue that after Palmer was decided, the District government should not have continued to prosecute gun offenses.  We argue that the government’s prosecution of unconstitutional gun laws violated plaintiffs’ Second Amendment rights.  In addition, we argue that the seizure of guns violated the plaintiffs’ Fifth Amendment rights.  As previously discussed, a typical scenario that occurs in the District of Columbia is a law abiding out of state resident visiting the District who is unaware of the District’s draconian gun laws gets pulled over for a minor traffic violation.  That person tells the law enforcement officer that she has a gun in the vehicle—as one is typically trained to do in gun safety courses.  Then, the officer arrests that person and charges them with a felony gun crime.

In the past, the best outcome you could typically hope for was a misdemeanor plea agreement to avoid a felony conviction.  Palmer changed things for at least a period of timePalmer declared the District’s gun laws unconstitutional and many cases got dismissed.  However, after Palmer was decided the District government continued to prosecute folks—including out of state residents with lawfully registered firearms in their home state for misdemeanor registration offenses.  However, because Palmer declared that the District’s absolute ban on carrying a pistol violated the Second Amendment, we believe the then-existing registration scheme was also unconstitutional.

We argue the registration scheme was unconstitutional in at least two ways.  First, it made District residency a requirement for registration.  That mean none of the folks arrested who had lawful firearms from their home state could not ever carry in the District solely on the basis of their non-residency.  Second, no mechanism existed to register a firearm for the purpose of carrying.  Palmer recognized that the Second Amendment includes the right to carry for self-defense not just the right to possess a firearm in the home for self-defense.  Furthermore, this whole process of prosecuting individuals from out-of-state is particularly onerous considering the District government expends no resources to create awareness of its strict gun laws.  There are no signs on the metro telling people not to bring their guns into the city.  There are no commercials and no billboards.  Hundreds if not thousands of innocent non-residents have unknowingly ran afoul of these laws and became felons and misdemeanants.

Carrying a pistol is not like a DUI for example where everyone knows it’s a crime to drink and drive.  Many individuals mistakenly believe that if something is legal in their home state, it is legal in other states or the District.  We believe the people who were arrested and prosecuted under these unconstitutional laws deserve compensation for the damages they suffered.

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u-s-supreme-court-1-1221080The first part of this three part series discussed the current state of the District of Columbia’s gun laws. The second part will discuss the process involved in attempting to withdraw a guilty plea in DC Superior Court and the pros and cons of attempting to get your plea withdrawn.

Ordinarily, moving to withdraw a guilty plea is a very difficult process. Many defense attorneys refer to the process for withdrawing a guilty plea as “pulling teeth.” However, given the negative consequences associated with having a criminal conviction on your record, and the current successful challenges to the District’s gun laws, it may be worth it to go through the process.

The law disfavors a defendant withdrawing a guilty plea. Imagine every time someone plead guilty and did not like the sentence then cases would never have finality. The rule that governs the withdrawal of a guilty plea is D.C. Criminal Rule 11 (e), which states:

A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice, the Court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.

The plain text of the rule indicates that it is easier to withdraw a guilty plea before an individual is sentenced. Once a person is sentenced, the only way to withdraw a guilty plea is to “correct manifest injustice.” The first issue that a trial judge would have to resolve on letting someone withdraw a guilty plea is whether the person is entitled to a hearing. Many judges will look for a way to just deny the motion without holding a hearing. However, the law only permits a judge to summarily deny a motion to withdraw guilty plea under the following circumstances:

1. If the motion is palpably incredible;
2. If the motion, even if true, would not entitle the person to relief; or
3. If the motion is so vague it fails to state any legal basis for action by the court.

Typically, the government will aggressively oppose such motions and argue to the judge that the court should not even hold a hearing. However, given the fact that a federal judge in the District of Columbia ruled that its “Carrying a Pistol” statute was unconstitutional, it would be difficult for the Court to find that such a motion fit into any of the three requirements above. For example, there is nothing “palpably incredible” about an individual wanting to get a conviction off his or her record when they plead guilty to a crime that was later declared unconstitutional.

Having said all that, there are some cons for trying to withdraw a plea. First, it will cost time and money and put you back into the court system. Second, if successful, the government could potentially reinstate any charges that were dismissed as part of the plea agreement. However, they could not and would not likely reinstate the felony “carrying a pistol” felony charge as it has been declared unconstitutional.

Of course, the pros in many circumstances may outweigh the cons. If Carrying a Pistol in DC is the only conviction on one’s record (or only felony conviction), there are tremendous benefits for not having a felony conviction on one’s record. Individuals with felony convictions often can’t vote and have difficulty finding jobs and passing background checks, among other consequences.

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black-and-white-gun-1409524-mLast year, in Palmer v. District of Columbia, a federal judge in the United States District Court for the District of Columbia held that the District of Columbia’s carrying a pistol statute was facially unconstitutional. In a lawsuit that had been pending for several years, the judge granted the plaintiffs’ request for an injunction. The judge enjoined the city from enforcing provisions of the D.C. Code that imposed an absolute bar on carrying pistol in the District of Columbia.

The Court also held that the Court could not categorically bar out of state residents from possessing a firearm in the District of Columbia solely on the basis that they are out of state residents. The consequences of this ruling were far reaching and the full effect of this decision has yet to be seen.

After a few days, the judge in the Palmer case, the judge granted the government’s request for a stay so that the District could come up with a licensing scheme that complied with the court order. The practical result was that hundreds of people charged with felony carrying a pistol in DC Superior Court had their charges dropped by the United States Attorney’s Office for the District of Columbia. Folks charged with felon in possession were not affected by Palmer.

The Attorney General’s Office for the District of Columbia (“OAG”) re-filed misdemeanor charges against most of the people who’s carrying a pistol charge was dismissed. The OAG has jurisdiction over mostly traffic crimes—like DC DUIs and DC hit and runs. However, OAG also has jurisdiction over two misdemeanor gun charges—unregistered firearm (“UF”) and unregistered ammunition (“UA”).

It appeared that the USAO acknowledged that it could no longer prosecute individuals for carrying a pistol under a statute that a federal judge found unconstitutional. The OAG took the position that Palmer did not impact the registration crimes—UA and UF. So, while many people were fortunate to have their felony charges dropped, they still face prosecution for two serious misdemeanors. Litigation is ongoing in DC Superior Court as to the impact, if any, Palmer has on the registration crime.

At Scrofano Law PC, we are aggressively challenging the constitutionality of the UF and UA charges as applied to out-of-state residents who have lawfully registered their firearms in their home state. The main takeaway from Palmer is that the Second Amendment guarantees the right to keep and bear arms for self-defense. Palmer thus recognized a right to carry as part of the Second Amendment. The District’s registration scheme makes it impossible to exercise that right for nonresidents who cross into the District.

In addition, the District passed a new carrying a pistol without a license law in October of 2014 to theoretically comply with the judge’s decision in Palmer. However, the plaintiffs in Palmer have challenged that new law and moved for contempt against the District arguing that the new law is just as restrictive as the old law.  That litigation is ongoing.

In reality, if the government simply took a reasonable approach to offering diversion for law-abiding, nonresidents who happen to get arrested for possessing a firearm in the District, they would avoid many of these challenges. The OAG and USAO will almost categorically refuse to offer folks in this situation some type of deal that involves community service in exchange for a dismissal. For whatever policy justification, the powers that be seem to think it benefits society to have law-abiding first offenders who did not know how strict the District’s gun laws convicted of crimes.

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