The Supreme Court is likely to rule in June on the constitutionality of the District of Columbia’s ban on handguns. The case has drawn nationwide attention, but the court’s decision will have little effect on gun violence in the nation’s capital, according to police officers and prosecutors.
Despite the ban, in effect since 1976, gunshots ring out and bodies fall every day and night across the city. Gunfire recently killed six people in eight days in one Northeast DC neighborhood. Police reported 627 gun crimes in DC from January through April 28.
According to the law-enforcement officials, politicians, and criminal-justice experts interviewed for this article, the gunplay is aided and abetted by a combination of factors, including a liberal city council, citizen mistrust of police, beleaguered cops, struggling prosecutors, lenient judges, and laws that favor defendants’ rights. All of this results in a city so soft on gun violence that it sometimes seems to encourage it.
“We are too accepting of people having guns,” says Isaac Fulwood Jr., who was police chief in 1991, when DC’s 479 homicides made it the nation’s murder capital. He’s now on the US Parole Commission. “There needs to be something done from top to bottom—the council, the police, the prosecutors, and the courts. Right now there are no consequences for having guns illegally.”
Gun violence is relatively rare across the Potomac River in Virginia, despite the fact that guns are easily bought and registered there. And there is much less gunplay in urbanized parts of Montgomery County, just over the line from DC.
Why? Activists outside the criminal-justice system blame poverty and the flow of illegal guns into DC; police and prosecutors point to cases like that of D’Angelo Thomas.
At about 2:20 am on October 11, two DC patrol officers stopped a car for a traffic violation on Benning Road, Northeast. When they asked the four young men inside to step out, one officer saw a .380 handgun on the floor behind the front seat. They called more cops. A search of the car turned up a nine-millimeter Luger fully loaded and with a round in the chamber, a silver Ruger loaded and ready to fire, a black Glock .357 locked and loaded, and a loaded Ruger .44 revolver with a sawed-off barrel.
D’Angelo Thomas was sitting in the passenger seat when police stopped the car. He and the three others were arrested, charged with carrying a pistol without a license, and jailed. Three of the suspects already were on probation, including Thomas—on a previous gun offense and robbery. When they went before a magistrate that evening, prosecutors inadvertently had not included Thomas on the charging statement. They asked to return the next morning with amended documents.
At 9:35 the next morning, the case was called before Magistrate Judge J. Dennis Doyle. Police were still working to fix the documents. The prosecutor asked for more time. Defense attorneys argued that the case should be dismissed because the government wasn’t prepared. Doyle granted their motion to dismiss, clearing his calendar of all four cases. About ten minutes later, police arrived in the courtroom with the corrected documents, but the suspects had been released.
Eleven days later D’Angelo Thomas allegedly walked up to Delonte Kent, put a pistol to his head, and killed him. Thomas was arrested. This time two judges in succession agreed to hold him pending trial on the murder charge.
The Thomas case is far from isolated. Once police arrest a suspect, the system that is supposed to prevent that person from getting back on the street and shooting someone is a sieve.
“Suspects arrested in DC don’t fear the criminal-justice system,” says Edgar Domenech, head of the DC field office of the Bureau of Alcohol, Tobacco, Firearms, and Explosives. “The majority of the gun cases go through Superior Court, and they don’t see any real jail time.”
DC police officer Tamika Hampton says she has made a number of arrests for CPWL—carrying a pistol without a license. “They get right back out on the street,” she says. “They know it when I make the arrest. After I process them, they walk out of court the same time I do. They laugh at me.”
Says Kristopher Baumann, head of the police union: “If the US Attorney’s office decides to prosecute someone, the judges often allow them back out on the street. If they are convicted, they don’t face much jail time.”
The District’s strict gun ban only appears to be strict. True, the law says it is a crime to possess an unlicensed gun—but the matter is not that simple. First, proving “possession” is not easy. If police find an unregistered firearm in a home or car, that does not prove possession. Even if possession is clear, police have to prove that the weapon is operable before someone can be charged with a crime and held.
If you are convicted, the penalty for simple possession is no worse than a traffic ticket. If cops catch you with a loaded .45 pistol in your waistband, and if they arrest you, and if prosecutors charge you, and if your case goes before a judge, and if you are found guilty or plead guilty, and if you have no prior record, you probably will serve no time. So much for the nation’s toughest handgun law.
Responding to complaints from DC residents about gun violence, Mayor Adrian Fenty last fall ordered a review of gun-law enforcement. He and police chief Cathy Lanier launched Gunstat, a program developed in Baltimore to document gun crimes and organize the system to get guns off the streets.
“We need a coordinated approach with aggressiveness by police, the US Attorney, and the courts,” Fenty says. “It’s time to do the community’s will—if you commit a crime, you have to do the time.”
Sounds tough, but any change in gun enforcement laws has to pass through a DC Council that sometimes seems to favor criminals over cops.
Since the 1970s, when it passed the landmark ban on handguns, the 13-member council has been among the nation’s most liberal legislatures on law-enforcement problems.
Until the law was changed two years ago, even a convicted felon caught with a gun in DC could be charged at most with a misdemeanor and would likely serve no time.
In early 2005 then-mayor Anthony Williams proposed reforms to toughen penalties on many crimes, including gun possession. Judiciary Committee chair Phil Mendelson held the bill in his committee for a year and a half.
Mendelson, 56, came to DC from Cleveland to attend American University. He got a political-science degree, became a local activist, and went to work as a council aide, first to Jim Nathanson and then to chair David Clark. In 1998, Mendelson ran for an at-large council seat in a field of ten candidates in the Democratic primary, won with 17 percent of the vote, and went on to win the general election.
In 1975 he launched his activist career by saving McLean Gardens on upper Wisconsin Avenue from the wrecking ball. He lives there still with his wife and daughter.
In giving Mendelson its “lukewarm” endorsement in the last election, the Washington Post called his current term “disappointing” and said his chairmanship of the Judiciary Committee was “timid” and “indecisive.”
When Mendelson finally moved the crime bill, some penalties were strengthened, but he had stripped out most of the mandatory-minimum-sentencing clauses Williams had proposed. Mendelson ignored pleas from police and prosecutors to stiffen the penalties. The effectiveness of mandatory-minimum sentences, directing judges to sentence criminals to specific jail terms, is a matter of debate. But they have been shown to lower crime in cities such as Portland, which has experienced a drop in violent crime since Oregon passed minimum-sentencing laws in 1995.
“If a drug dealer knew he would face a five-year minimum sentence if he was caught carrying a gun,” says a veteran federal prosecutor in DC, “I guarantee you gun crime would drop dramatically.”
Says Mendelson: “I don’t believe minimum-sentencing laws are effective.”
Mendelson also doesn’t believe in holding violent offenders while they are awaiting trial. Mayor Williams had proposed changes in the law that would make it easier for judges to hold suspects. Mendelson stripped the provisions from the bill.
In a January 10 hearing, police-union representative Delroy Burton testified that beefing up detainment rules would “help keep violent offenders off the street.”
Mendelson said that would never happen: “We have rules that favor release.”
When I asked Mendelson what he would do to keep defendants arrested for gun possession from returning to the street, he said, “I don’t believe that’s happening. That’s very anecdotal.”
Prosecutors and police disagree, saying that hundreds of people arrested for gun possession are sent right back out.
Mendelson also made it harder for prosecutors to charge a defendant as a gang member. They had to show that a defendant had three close contacts in a gang to prove membership; Mendelson changed it to five.
“There’s soft on crime, there’s softer on crime, then there’s Phil Mendelson,” says police-union head Kris Baumann.
When I asked Mendelson why gun violence was so prevalent in DC as opposed to the suburbs, he said: “It’s not the District’s fault. . . . We have too many guns coming in from shops in Maryland and Virginia.”
What could police do to control gun crime better?
“Use new and different methods,” Mendelson says. “Foot beats. Bikes. Segways. Share statistics.”
One DC councilmember in favor of tougher penalties, including mandatory-minimum sentences for gun crime, is former mayor Marion Barry. In 2005 the Ward 8 councilmember introduced legislation to make the penalty for possession of an illegal gun a mandatory minimum of ten years in jail.
He told reporters at the time: “I don’t think it is harsh enough, because murder and violence need to stop in this town. I am usually not for mandatory minimums. But in this case, I think we need to do that.”
Mendelson says DC’s gun laws are strong enough—with the exception of what’s known as the “operability” ruling. Thanks to a 1974 ruling by the DC Court of Appeals, the District is the nation’s only jurisdiction where police have to prove that a gun works before a suspect can be held pending trial.
In practice, if police arrest a suspect and want to charge that person with CPWL, a cop has to take the pistol into the basement of police headquarters and fire it into a water tank. If it goes off, police can charge the suspect. It sounds simple enough, but it sometimes means cops have to make a difficult decision because the process of proving operability lessens their chances of tracing the gun.
“If a gun is found on the floorboard of a car, and it is tied to a shooting, and we have witnesses to the shooting, we call an evidence technician to the scene,” says US Attorney Jeff Taylor. “The technician photographs the gun, takes it to a mobile crime lab, and coats it with a material that will allow us to digitally record the fingerprints.”
If the same gun is found in a car but is not directly tied to a shooting, police have to test-fire it immediately. The evidence technician is forced to use a less reliable method of dusting it to get fingerprints.
Says Taylor: “We don’t get the best prints, and we don’t always get to hold the suspect.”
Everyone involved in fighting gun crime agrees that forcing police to prove a gun works can gum up the enforcement system. Removing the requirement will take a change in the law through Phil Mendelson’s committee.
“We have a bill pending,” Mendelson says. No hearings have been held.
Let’s say the DC police arrest someone for carrying a pistol without a license and prove that the gun works. Even if that person does not have a prior arrest for violent crime, says US Attorney Taylor, “we would move to hold that person 97 out of 100 times. But in 40 to 45 percent of those cases, they would not be held.” Superior Court judges typically release such suspects, Taylor says.
That arithmetic means that of the 982 people arrested in 2007 for CPWL as a first offense, at least 390 were turned back out into the community.
Taylor, appointed by President George W. Bush, is the highest-ranking prosecutor in DC. Unique among American prosecutors, he presents cases to both the DC Superior Court and the federal District Court. Superior Court is subject to local laws, and its judges are more sensitive to community concerns; the federal District Court relies on federal laws and typically handles more-violent and repeat offenders.
“It’s a big system,” Taylor says. “We process a lot of cases.”
According to his records, the US Attorney’s office filed firearms-related charges in 870 cases in 2007. Illegal possession was the lead charge of 68 percent of the cases. The rest included offenses such as armed robbery, carjacking, and murder.
Taylor’s prosecutors got guilty pleas or verdicts in 566 cases involving possession of illegal firearms. It is highly unlikely that many of those convicted served any significant time. The verdict carries a five-year maximum penalty but no minimum. Judges often apply a split sentence that might put the person on probation but suspend jail time.
If the person pleads guilty or is convicted at trial for being a felon in possession of an illegal firearm, he or she now must serve a mandatory-minimum sentence of one year. Taylor says he charged 167 felons under this law in 2007.
Taylor is in an unusual position—a federal appointee who’s a chief local prosecutor. He’s careful not to criticize either local politicians or judges. It’s pretty clear, though, that he thinks the DC court system is deferential toward defendants. He points out that Superior Court is open most days, including Saturdays, Christmas, and other holidays, “so people arrested can be promptly brought to court and released, if appropriate.
“We live in a jurisdiction that’s very solicitous of defendants’ rights, very defendant-friendly. That is reflected in some of our juries, judges, and elected officials. It has an impact on public safety.”
Superior Court chief judge Rufus King III doesn’t see his judges as being soft on defendants.
“We have one of the highest incarceration rates compared to any state,” meaning the highest percentage of arrests resulting in jail time, he says in his office in Superior Court, just up the street from police headquarters. “Our judges are not shy about handing out time.”
King, who plans to step down from his post in the fall, says his judges are not always inclined to let defendants out while they await trial.
“Pretty much what the government asks for, they get,” he says. “Some of the time, prosecutors don’t ask. But I’m sure there are times they ask us to hold suspects and they don’t get it.”
King says DC’s bail-bond system—under which defendants are entitled to release pending trial absent specific findings of danger to the community or risk of flight—is unique among area jurisdictions.
“There is no bond in DC,” he says, noting that the city council followed federal practice when it passed its law. Because there is no bail provision, judges cannot put a price on people’s detention, releasing them, for example, on $1,000 bail as an incentive to appear in court.
The inability of judges to set bail, says King, “creates a strong presumption that anyone charged with anything but a few major crimes—such as murder or assault with intent to kill—is released pretrial.”
When judges had to impose bail for someone to be released, “that was very different. Now we have to have a reason to hold someone.”
King is no fan of mandatory-minimum sentencing laws. “You can do sentencing two ways—either the judges or the legislature decides on the appropriate sentence,” he says. “If the legislature passes mandatory minimums, a whole lot of people go to jail for a long time.
“As a community,” he says, “we have drawn a balance in favor of judicial discretion rather than blanket mandatory minimums that send everyone off to jail. There are costs of doing it either way.” ➝
King insists that judges take gun crime seriously. “Repeat offenders are going to do some time,” he says. He thinks DC’s gun laws could be “augmented,” particularly by removing the requirement that a gun be proved “operable” before a suspect is arraigned—the legislation awaiting action in Phil Mendelson’s Judiciary Committee.
Edgar Domenech says the US Attorney could help fix DC’s rampant gun crime by prosecuting more cases in federal court.
“The majority of gun cases in the District go through Superior Court,” he says, “and the majority of defendants just don’t see any real jail time.”
Domenech, DC’s ATF chief, is the city’s top federal gun cop. Before coming here, he ran ATF’s operations in New York and Miami. “I have a different philosophy and focus than my predecessors,” he says. “Guns are my forte—my passion is firearms.”
I ask him why gun crime is worse in DC than in Virginia.
“They know if they commit a serious gun crime in Virginia, they could go to federal court for the Eastern District,” he says. “They start to cry. They realize the consequences of their actions. They will do serious jail time.”
Domenech’s main job is to enforce federal gun laws, which govern sales and trafficking of firearms. His agents trace illegal weapons with the goal of taking down trafficking networks. They bring most of their cases to prosecutors and federal courts in Virginia and Maryland, he says, because DC’s federal prosecutors are less interested in their cases.
According to the TRAC data system, which tracks federal prosecutions, the DC US Attorney’s office prosecuted 423 cases in federal court in 2007; of those, five were weapons cases. Federal prosecutors for
eastern Virginia, based in Alexandria, brought 4,888 cases, and 243 were weapons charges.
Domenech says gun crime could be reduced in DC if Jeff Taylor would take more cases to federal court.
Taylor says it’s “flat-out false” that his office is unwilling to prosecute major gun cases in federal court: “Edgar and I have an understanding that if we’re not handling cases in the way he wants, I am happy to discuss it with him.”
Taylor does agree that “for defendants with multiple prior felony convictions, a gun-crime conviction will likely result in a more appropriately severe sentence in federal than Superior Court.”
Gun-control advocates often blame Maryland and Virginia for allowing guns to be shipped illegally into DC. Domenech says the days of rampant gun trafficking into DC are past.
“The bulk of DC’s guns are not what we would call trafficked guns,” he says. “Of the 1,500 guns we were able to trace, the time of sale to crime was over three years.” That means fewer people than before are acquiring guns by purchasing them illegally or stealing them.
“Most guns are being traded on the secondhand market,” he says. “Our criminals are trading guns among themselves.”
The ATF’s most recent bust of a major dealer in illegal guns was Garfield Hedlam, who used straw purchasers to buy guns one at a time legally in Virginia, then sold them illegally in DC.
“That’s not happening as much any longer,” says Domenech. “The criminal element is moving guns among themselves—trading guns, bartering guns.” Domenech says federal investigators need to refocus their efforts: “We have to get closer to the streets and the hand-to-hand sales.”
If there is any good news in the fight against gun crime in DC, you might find it in the police department’s Gun Recovery Unit and its leader, Sergeant Curt Sloan.
Sloan has focused on getting guns off the street since he made sergeant in 1993. He was on the case until former chief Charles Ramsey disbanded the gun-recovery units and dismantled gun-crime teams that were working with federal agents in the late ’90s.
Late one night in early 2007, Sloan says, he had just fallen asleep when the phone rang. He answered, and a woman said, “Hey, Curt, how have you been?”
“Fine, baby, how about you?” Sloan recalls saying. “Sergeant Sloan,” the woman said, “this is Cathy Lanier.”
“Sorry, Chief,” he said. Lanier had just been named to run DC’s police department.
“I want you to start up the gun-recovery unit again,” she said.
The unit now has 29 cops whose primary job is getting guns out of the hands of criminals. They solicit tips on illegal guns, get search warrants, batter down doors, and round up illegal weapons. Since they started in November, they have taken in more than 220 weapons. But Sloan knows the limits of DC’s gun laws.
Acting on a tip from Alexandria police about a suspected armed robber, Sloan’s unit located the suspect’s home, got a search warrant, raided it, and discovered an unregistered pistol. The suspect walked in during the raid and was arrested.
Sloan sent the suspect directly to Virginia for prosecution on the armed-robbery charges. Though cops found a gun in his place, DC’s possession laws make it hard to prove it belonged to him, and the worst he could get was a misdemeanor with no jail time.
Even after restarting the gun-recovery unit, Cathy Lanier knew reducing gun violence would take an assault on the enforcement system.
“We’re on the front end of the system,” she says. “In the last 40 days my officers have taken 312 guns off the street. That’s a lot of guns.”
It’s the last week of April. Nine people have been killed by gunfire in and around the Turkey Thicket neighborhood of Northeast DC. Lanier has just deployed 1,200 cops to try to stop the bloodshed.
“We keep arresting people on gun charges, and they keep getting back on the street,” she says. “What the street cops see is a revolving door.”
Having been a street cop before climbing through the ranks to become chief, Lanier has felt the frustration. Last fall she asked Mayor Fenty to examine the system from arrest through court. She now chairs the monthly Gunstat meeting that brings together cops, prosecutors, and court officials to track cases.
Unfortunately, Councilmember Phil Mendelson, whose Judiciary Committee is responsible for many of DC’s weak gun laws, is not part of these sessions.
“We’re trying to look at all the people we’re bringing in and check their histories,” she says. “If they have been arrested 23 times since 1999, and some of those arrests are for possession of a weapon or armed robbery or murder or CPWL, why is this person still on the street? Where is this falling through the cracks?
“If we are arresting people,” she asks, “what happens then? Ten different things can happen from the day I lock you up until I see you back on the street.”
Cops locked D’Angelo Thomas up for gun possession, but a magistrate freed him because the paperwork for his arrest didn’t show up on time. Before cops rearrested him, he allegedly killed Delonte Kent.
Thomas awaits trial on the murder charge. He now has been convicted on the gun-possession charge and sentenced to five years. Delonte Kent’s sentence was death.
This article is from the June 2008 issue of The Washingtonian. For more articles from the issue, click here.
