Articles Tagged with felonies

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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DC Gun Lawyer

A common, unfortunate scenario that often occurs in the District of Columbia goes something like this:

Average out-of-state, law abiding citizen with no prior criminal record travels through or to the nation’s capital. We will call him John.  John commits one of the hundreds of possible District of Columbia traffic infractions while driving.  And this traffic infraction could involve something as innocuous as hanging something from the rear view mirror or having window tint that is too dark.  One of the dozens of law enforcement agencies that has jurisdiction in the District pulls the person over.  We will call him Officer Friendly.  Officer Friendly either asks Johns: “Do you have any weapons in the vehicle” or John, accustomed to the laws of his home state, voluntarily announces to Officer Friendly that he has a firearm in the vehicle.  John then tries to show Officer Friendly his home state concealed carry permit for his lawfully registered firearm.  In John’s mind, all of this is no big deal.

What John does not know is that his life is about to change forever.  Officer Friendly places John under arrest for “carrying a pistol,” which in the District of Columbia is a felony punishable by up to five years in prison.  It is likely when John sees a judge for presentment after arrest, he gets held in jail for at least three days because of the felony charge.  The Court may order pretrial release conditions like drug testing or reporting to the Pretrial Services Agency.  And now John has a serious criminal matter hanging over his head.

Within a few weeks the United States Attorney’s Office for the District of Columbia will indict John through its Rapid Indictment Process (or “RIP”).  The indictment will come down with at least three charges: carrying a pistol, which is a felony, and unlawful possession of a firearm and unlawful possession of ammunition (if the gun has bullets), which are both misdemeanors.  John’s total criminal exposure will be seven years in jail.

To John, the whole situation is absurd, and he wonders if the government will just drop the whole thing.

The sad thing is the government will not just drop it.  Even worse, in that scenario, there is virtually no basis to challenge Officer Friendly’s actions.  No illegal search; no custodial interrogation; no violation of constitutional rights.  John simply thought he was doing nothing wrong so he unknowingly admitted guilt to the officer.  The best John can hope for is to find an experienced DC gun lawyer who can convince the prosecutor or her supervisor to offer him a misdemeanor plea.  In some extremely rare circumstances, the government may offer a type of diversion where if successfully jumps through some hoops, the case will be dismissed.

Fortunately, many of the judges in DC Superior Court have more common sense then the prosecutors and their supervisors.  If John’s DC gun lawyer can get him a misdemeanor plea agreement, the judge will likely impose a very easy sentence.  The sentence could be as little as a small fine or a short period of unsupervised probation.  However, John’s criminal record won’t be eligible for expungement for eight years and his life is forever changed.

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