Court Holds Any Object Complainant Reasonably Perceived to Be A Gun Qualifies As A “Dangerous Weapon,” but Casts Some Doubt on Whether Such an Object Should Also Qualify As An “Imitation Firearm”

Warren B. Washington v. United States (decided April 7, 2016)

Players: Chief Judge Washington, Associate Judge Fisher, and Senior Judge Belson. Opinion by Chief Judge Washington. Concurrences by Chief Judge Washington and Judge Fisher. PDS for Mr. Washington. Trial Judge: Stuart G. Nash.

Facts: Mr. Washington was convicted of ADW and PFCV committed “with a firearm or imitation thereof” for an incident in which he brandished an object as if it were a gun, and threatened his ex-girlfriend and her companion as they sat inside a locked car. The object was not recovered, and there was conflicting evidence about whether it was in fact a gun or a cell phone, though at least one of the complainants believed it was a gun. The jury was instructed that to convict for ADW, it must find Mr. Washington “committed the threatening act with a dangerous weapon; that is, a firearm or imitation thereof,” and that “[a]n object is a dangerous weapon if it is designed to be used, actually used, or threatened to be used in a manner likely to produce death or serious bodily injury.” The deliberating jury sent a note inquiring whether “an object that is not a gun (or other truly dangerous weapon)—such as a cell phone—but is brandished in a manner so as to give the impression that it is a dangerous weapon, count[s] as ‘an imitation thereof,’ as set forth” in the ADW instruction. The trial court initially responded by repeating the catchall definition of “dangerous weapon,” but then issued a supplementary instruction defining “imitation firearm” as “any object that resembles an actual firearm closely enough that a person observing it in the circumstances would reasonably believe it to be a firearm.” On appeal, Mr. Washington argued that this answer was erroneous because “imitation firearm” means a physical replica of a gun, not some other object—like a cell phone—that is misperceived to be a gun.

Issue: Was the trial court’s answer incorrect because it failed to require that an “imitation firearm” actually physically resemble a real firearm?

Holding: The jury instruction was not incorrect under the current state of the law. While there is no statutory definition for “imitation firearm,” the Court noted that the definition used here was virtually identical to an instruction defining “imitation pistol” that the Court had previously approved in Smith v. United States, 777 A.2d 801, 810 n.15 (D.C. 2001) (defining “imitation pistol” for purposes of “while armed” statute). Moreover, the Court reasoned, because “any object which the victim perceives to have the apparent ability to produce great bodily harm can be considered a dangerous weapon,” it ultimately “did not matter whether the object in appellant’s hand was objectively physically similar to a firearm.” In other words, the fact that “the victim perceived the item in appellant’s hand to be a firearm” was enough for the jury to conclude that the object was “a dangerous weapon.”

Concurrence #1: Chief Judge Washington, who wrote the opinion for the Court, also wrote a concurring opinion in which he concluded that the Smith-approved definition of “imitation firearm” is overbroad and should be corrected by the full court sitting en banc. The concurrence details why the plain meaning of the term, the statutory context in which it is used, and its legislative history all indicate that “an imitation firearm must physically conform to the characteristics commonly attributable to a real firearm.” It also notes that, despite opining on the meaning of “imitation firearm,” the court in Smith was not actually focused on whether an object like a cell phone could qualify as an “imitation firearm.”

Concurrence #2: Judge Fisher wrote a separate concurrence opining that en banc review is unwarranted in this case because “[a]ny metaphysical shortcomings in the jury instruction defining an imitation firearm did not lead to an unjust conviction,” since Mr. Washington used the object—whatever it was—to create a situation “fraught with danger” by making it appear that he had a gun.

Of Note: 

• The PFCV and while armed statutes both expressly include “imitation” firearms among the specific weapons to which they apply, but the ADW statute says only that it applies to “dangerous weapons.” The Court held that an “imitation firearm” is a type of dangerous weapon within the meaning of the ADW, because it is a “gun,” and a “gun” is an inherently dangerous weapon—not only because it can be used to injure someone, but also because its apparent ability to cause injury can prompt people to react in a way that itself might lead to harm. 

• The Court’s opinion seemed to take care to state that the complainant’s mere perception that Mr. Washington was holding a gun was enough to find that the object in his hand was a dangerous weapon. Despite acknowledging that Smith currently remains good law, the Court’s opinion did not state that the complainant’s perception was enough to find the object was an imitation firearm. This distinction may be important in cases where the charged offense requires proof of a real or imitation firearm, rather than the broader category of any dangerous weapon. 

•  Because there is a suggestion that the court might revisit this issue en banc, it is wise to preserve any challenges to a Smith-type instruction for the foreseeable future. FT

Read full opinion here.