Articles Tagged with guns

The District of Columbia has some of the toughest gun laws in the nation.  While federal courts have on several occasions struck down D.C. gun laws, the city still maintains some of the most restrictive policies for gun owners.The District of Columbia has some of the toughest gun laws in the nation.  While federal courts have on several occasions struck down D.C. gun laws, the city still maintains some of the most restrictive policies for gun owners.

The first step in lawfully possessing a firearm in the District of Columbia is registering it with the Metropolitan Police Department.  This must be done at MPD headquarters located at:

Metropolitan Police Department Headquarters (Main Entrance)
300 Indiana Avenue, NW, Room 3058
Washington, DC 20001
Telephone: (202) 727-4275
Hours: Monday-Friday, 9 am – 5 pm

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For a city dedicated to the admiration of the Constitution and the nation that it founded, Washington, D.C. has a history of having some of the strictest gun laws in the country.  It’s protection of the 2nd Amendment Right to Bear Arms has always been heavily regulated and severely enforced. On July 25, 2017, however, the tide seemed to turn when a panel on the U.S. Court of Appeals for the D.C. Circuit ruled 2-1 that the “good reason” requirement in obtaining a license to carry a pistol in the District is unconstitutional.  The United States Circuit Court of Appeals for the District of Columbia, in Wrenn v. District of Columbia, struck down the District’s licensing scheme for obtaining a license to carry a pistol outside the home for self-defense.

Prior to this ruling, citizens had to prove that they had a “good reason” (ie. a job that makes them carry a lot of cash or valuables, or being in a position where one would be targeted) to carry a concealed firearm.  Now, if this decisions stands, this might no longer be the case.

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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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gun-1503923There has been a lot of news lately regarding DC’s gun laws.  If you have been convicted in the District of Columbia for carrying a pistol, unregistered firearm, or unregistered ammunition prior to October of 2014, there may be a legal remedy available to get your conviction overturned.  Part I  will discuss the current state of the District’s gun laws and how you may be able to get your conviction overturned.  Part II will discuss the pros and cons of trying to get your conviction overturned.  Finally, Part III will discuss a class action lawsuit filed by Scrofano Law PC and The Law Office of William Claiborne III on behalf of folks who were prosecuted in DC under the city’s unconstitutional gun laws.

In July of 2014, a federal judge in the District Court for the District of Columbia ruled that the city’s “carrying a pistol” statute was unconstitutional.  At that time, the District maintained an absolute ban on the carrying of a pistol.  No mechanism existed to obtain a concealed carry permit.  In Palmer v. District of Columbia, Judge Scullin ruled that right to bear arms articulated in the Second Amendment of the Constitution extended beyond the right to self defense in the home and to “carry” as well.

In response to the decision, the United States Attorney’s Office for the District of Columbia (“USAO”) dismissed basically all of its carrying a pistol prosecutions–recognizing that it could not prosecute an unconstitutional law.  These dismissals did not happen immediately but rather occurred over the course of several months.  Unfortunately, for many law abiding non-DC resident citizens who were arrested in the District of Columbia when they had either properly registered their guns in their home state or had a concealed carry permit from their home state, the USAO’s actions did not end their prosecutions.

For each case dismissed by the USAO, the DC Office of the Attorney General’s Office (“DC OAG”) basically picked up the cases and prosecuted the individuals for misdemeanor gun charges.  The DC OAG is the local prosecuting agency in the District that mainly prosecutes traffic crimes like DC DUI cases.  The charges included possession of an unregistered firearm and unlawful possession of ammunition.  In October of 2014, the DC City Council passed legislation in response to the Palmer decision.  The same attorneys from the Palmer case brought another lawsuit arguing that the new legislation was also unconstitutional.  In Wrenn v. District of Columbia, the Plaintiffs have argued that the new law’s requirement that the individual applying for a carry permit demonstrate a “special need” for self-defense (i.e. that someone has threatened them) makes the law unconstitutional.

Initially, the same judge from the Palmer case agreed.  However, that preliminary decision was reversed by the Court of Appeals for the DC Circuit.  The parties are now briefing the issue and the DC Circuit is expected to rule in the next few months.  That means the state of the new gun law is currently in limbo until the DC Circuit rules.

Regardless of the status of the new law, Judge Scullin’s decision in Palmer still stands.  No legal ruling yet exists whether this ruling should apply to individuals who were convicted under the pre-Palmer law.  In other words, whether the decision applies retroactively is yet to be decided.  That means if you plead guilty under the old law, there is a basis to try and withdraw your guilty plea and get the conviction taken off of your record.  It also means if you were convicted at trial, there may be a basis to get your conviction overturned given that the law was later ruled unconstitutional.  

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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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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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