The public safety division chief of the District of Columbia Office of the Attorney General testified today against proposed legislation that would allow local prosecutors to offer civil penalties to non-D.C. residents charged with possessing unregistered firearms or ammunition.
Criminal defense lawyers and a national prosecutors association offered support for the bill during this morning's hearing, although there was concern about whether the city could face litigation by creating a system that treated residents and non-residents differently under the law.
Deputy Attorney General Andrew Fois, who leads the public safety division, said that the legislation is a "solution in search of a problem" and would send the wrong message about how seriously the District takes violations of its gun laws. Council Chairman Phil Mendelson (D), who introduced the bill, defended it as necessary to make sure out-of-towners unfamiliar with D.C.'s laws aren't unnecessarily caught up in the criminal justice system.
The Administrative Disposition for Weapons Offenses Amendment Act (PDF) would allow the attorney general's office to offer a civil penalty (and, as a result, no criminal record) to non-D.C. residents charged with possessing an unregistered firearm or unregistered ammunition. At the moment, those crimes are prosecuted as misdemeanors.
The bill comes as D.C. officials continue to shape local gun laws in light of the U.S. Supreme Court's 2008 decision striking down the city's handgun ban. A number of lawyers have said they see this latest proposal as part of the city's efforts to extend an olive branch to gun rights supporters.
Mendelson began today's hearing by recounting anecdotes of individuals recently arrested under the gun laws at issue, most of whom said that they were unaware of D.C.'s laws or had forgotten that they had the ammunition or firearm in question in their car at the time. "These different incidents, if they are taken at face value, in my view speak to the need for prosecutors to have discretion," he said.
David LaBahn, president of the Association of Prosecuting Attorneys, spoke in favor of the bill, saying it was in line with the growing number of states trying to write more flexibility into their laws when it came to certain low-level offenses. The D.C. Public Defender Service also expressed its general support for the bill, although Laura Hankins, special counsel to the director, said they would prefer that it cover D.C. residents, noting that such a two-tier system could spark litigation. Patrice Sulton, a member of the legislative committee of the D.C. Association of Criminal Defense Lawyers, expressed similar sentiments and called for Mendelson to ensure the attorney general's office would make the guidelines for such a procedure clear.
Mendelson heard from D.C. resident Dick Heller – the subject of the 2008 Supreme Court decision and subsequent litigation over D.C. gun laws – who spoke more generally about his displeasure with the city's gun laws as too restrictive. George Lyon Jr., president of the D.C. chapter of the Community Association for Firearms Education, also spoke in favor of rolling back the city's gun laws, but called the proposed bill a step in the right direction. Josh Horwitz, executive director of the Coalition to Stop Gun Violence, supported the bill, saying it would only rarely come into play and was a commendable attempt by the council to work with all sides of the gun control debate.
Fois spoke last, asking Mendelson and the council to reject the measure. He said it would send "the wrong signal at the wrong time" to the public about the city's commitment to its gun laws. He said that the civil penalty procedure that would serve as the model, known as post-and-forfeit, is inappropriate for gun offenses and should be reserved for offenses such as disorderly conduct. He noted that by his office's math, the bill would have applied, at most, to 18 people last year. Mendelson pushed back, saying that it shouldn't matter how many people might be affected, pointing to other laws, such as the D.C. Innocence Protection Act, that have only applied to a handful of individuals.
Fois said that there were already a number of policies and procedures in place to cover the scenarios Mendelson envisioned in the bill. Assuming the attorney general's office decides to bring charges, he said many of these cases play out through a mechanism known as a deferred-sentencing agreement, where a person agrees to plead guilty but their case is later dropped if they comply with certain conditions, such as a fine or community service. Mendelson said he wasn’t convinced and that he didn't see a reason not to give prosecutors another tool for resolving cases.
The council is accepting public comments on the bill through October 8.