When it comes to gun laws in Washington, local officials know that the world — or, at least, the throng of national advocates on all sides of the debate — is watching.
The city’s gun laws have been part of the national conversation surrounding the Second Amendment since 2008, when the U.S. Supreme Court struck down the city’s handgun ban in District of Columbia v. Heller. With that in mind, D.C. Council Chairman Phil Mendelson (D) is backing legislation that lawyers say illustrates the line that councilmembers now walk between respecting gun owners’ rights and fighting crime.
The Administrative Disposition for Weapons Offenses Amendment Act would give the D.C. Office of the Attorney General new discretion in handling certain gun-related cases. Under the bill, prosecutors could offer a civil penalty to non-D.C. residents charged with possessing unregistered firearms or ammunition, instead of prosecuting the case as a misdemeanor crime.
Mendelson, who heads the council’s judiciary committee, said his office crafted the legislation with tourists and other travelers unfamiliar with the District’s laws in mind. “It seems a bit excessive to impose a criminal penalty on that individual,” he said. He cited a case covered at length earlier this year by The Washington Times, in which a South Carolina Army national guardsman was arrested for possessing unregistered firearms during a visit to the Walter Reed Army Medical Center in Washington.
The attorney general’s office has yet to weigh in. Deputy Attorney General Andrew Fois, who leads the public safety division, said in an email that “we are studying the legislation and working with the Mayor’s office to prepare for the hearing.”
Lawyers say they expect the effect would be limited. Metropolitan Police Department data show that, in the majority of cases, individuals arrested under the possession charges at issue are also charged with more serious crimes, making them ineligible for the civil penalty anyway. Still, Richard Gilbert, chairman of the legislative committee of the D.C. Association of Criminal Defense Lawyers, said the legislation seems to be an “olive branch” to the gun rights community.
“This bill is a little different in tenor from the previous legislation before the council,” said Gilbert, a solo practitioner. “It seems to be recognizing that in some cases, this can be less serious than we normally treat it.”
The National Rifle Association plans to support the measure. Spokeswoman Jacqueline Otto said the measure is a “step in the right direction.”
Gun rights advocates aren’t the only ones on board. Josh Horwitz, executive director of the Coalition to Stop Gun Violence, said he understands that councilmembers are “trying to be as accommodating as possible” to gun owners in the post-Heller environment. “Giving prosecutors and attorneys general more discretion isn’t necessarily a bad thing,” said Horwitz, a lawyer. “It’s an opportunity for people to weed out those carrying a gun criminally and those doing it by mistake.”
A hearing before Mendelson and the judiciary committee is scheduled for September 24.
A LAW FOR TOURISTS
The U.S. attorney’s office serves as the District’s local prosecutor in most cases, but the D.C. attorney general’s office handles misdemeanor arrests for possessing unregistered firearms or ammunition.
In 2011, according to police department data, there were 452 arrests for possessing unregistered firearms and 594 arrests for possessing unregistered ammunition. About 75 percent of the firearm arrests and 87 percent of the ammunition arrests involved D.C. residents. Mendelson said he expected the number of arrestees eligible for the civil penalty option would be small.
Under the proposed law, the attorney general’s office could offer the civil penalty to out-of-state residents not charged with another crime at the same time. The bill would leave it up to the attorney general’s office to decide what criteria they would use to determine who is eligible.
Criminal defense attorney Shawn Sukumar of Washington’s Price Benowitz said the cases at issue tend to fall into two categories: tourists, and Maryland and Virginia residents traveling through the District. He said the proposed legislation might cost his firm some clients, but from a fairness perspective he thought it was the right move.
The fact that the legislation draws a line between D.C. residents and out-of-towners could prove controversial, Gilbert said. Alan Gura of Gura & Possessky in Alexandria, Va., a lead attorney challenging the city’s gun laws in the Heller case, agreed. “It does raise the question, of course, as to why [Washington] is so restrictive with firearms carrying when it recognizes that the occasional carrying of guns by nonresidents is unworthy of wasting criminal justice resources or criminal penalties,” he said in an email.
Post-Heller, Gura said he sensed that city officials are generally more open to easing gun laws in limited circumstances. “[T]he District maintains many unconstitutional laws that are being and will yet be challenged in court, but the city doesn’t have a sense of infallibility that some others, notably Chicago, do,” he said. Courts have struck down Chicago’s gun laws for being too restrictive.
Gun laws adopted by the City Council since Heller have mostly survived court challenges, although some firearm registration requirements are still being litigated. Horwitz said the latest bill is evidence of the city’s efforts to strike a balance. “There’s been a real concerted effort, especially by Chairman Mendelson, to support the strong gun-trafficking laws the city has,” he said. “But at the same time, I think Mendelson has been very deferential to concerns from the gun rights community.”
Mendelson said he hoped his bill would reinforce the message the council has tried to send since the Heller decision: “We wanted to preserve gun control, but be reasonable about it.”
Contact Zoe Tillman at firstname.lastname@example.org.