DCCA: Neither the Second Amendment nor Wrenn bars CPWL prosecution of those with prior felony convictions.

Hooks v. United States (decided August 30, 2018)

Players: Associate Judges Fisher, Beckwith, and McLeese. Opinion by Judge Fisher. Donald L. Dworsky for Mr. Hooks. Trial Judge: Kimberly S. Knowles.

Issue 1: Whether the evidence suffices to support appellant’s convictions for unlawful possession of a firearm (UPF), carrying a pistol without a license (CPWL), possession of an unregistered firearm (UF), and unlawful possession of ammunition (UA)?

Holding 1: Yes. The evidence showed that as police were approaching appellant, he walked over to a metal dumpster; that the officers heard something metal hit the dumpster; and that appellant took his arm out of the dumpster and walked away. The officers found a loaded pistol in the dumpster and nothing else that would account for the noise they heard. When they pursued appellant, he ran. This evidence suffices to show beyond a reasonable doubt that appellant possessed the loaded pistol. Appellant stipulated to the remaining elements, including his prior felony conviction, at trial.

Issue 2: Whether the appellant’s CPWL conviction violated the Second Amendment?

Holding 2: No. Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017) did not invalidate the CPWL statute; it only invalidated (and enjoined enforcement of) the requirement to demonstrate “good reason to fear injury” or some other “proper” need to carry a pistol before obtaining a license to do so. That requirement is severable from the provision that penalizes carrying a pistol without a license and requires licensees to be otherwise “suitable” to obtain a license. Appellant was not “suitable” and further had no Second Amendment right to carry a pistol outside of his home because he had been convicted of a felony. WC.

Read the full opinion here.

A Tip From “The Neighborhood” Gave Police Reasonable Articulable Suspicion.

Jackson v. United States (decided April 13, 2017)

Players: Associate Judges Fisher & Beckwith, Senior Judge Stedman. Opinion by Judge Fisher. Opinion concurring in part and dissenting in part by Judge Beckwith. PDS for Mr. Jackson. Trial Judge: John McCabe.

Facts: Around noon, a man approached Corinthea Thompson as she was walking down the street and demanded that she hand over her belongings. When she said no, the man hit her in the head with a gun and stole her watch and gold necklace. Ms. Thomas told the police that her assailant was a dark-skinned black man with dreadlocks who had a thin build.

Ms. Thompson’s mother, Ms. Thompson-Wright, arrived on scene shortly after the incident and spoke with her daughter. Then, 45 minutes after the robbery, Ms. Thompson-Wright called the police to report a second-sighting of the robbery suspect. Officer Chih responded to find Ms. Thompson-Wright cursing and yelling, screaming the suspect was in a nearby apartment building inside of apartment 301, and that if police did not go in there and get him, she was going to go in there herself.

Officer Chih tried to calm down Ms. Thompson-Wright so she could tell him what was going on. She explained that her daughter had been robbed and she has a picture of the suspect. Ms. Thompson-Wright gave Officer Chih a picture of a dark complexioned black male with dreadlocks. She told Officer Chih that she had received the photo “from the neighborhood.”

Officer Chih called for backup. Once it arrived, he and another officer went up to apartment 301. Joyce Lewis answered the door. Officer Chih told her that they were investigating a crime and they had information that the suspect was in her apartment. Ms. Lewis told the officers that only her son was home.

Ms. Lewis invited the officers inside and her son Craig came to the door. He was not the person in the photograph. The officers asked Craig for identification and he told them it was in his bedroom. When the officers asked whether anybody else was in the apartment, both Craig and Ms. Lewis said no.

The officers followed Craig to the bedroom, where they found Mr. Jackson and his brother. They looked like the person in the photograph. Noting that the brother had a facial tattoo, Officer Chih focused his attention on Mr. Jackson, who appeared very nervous. His attention on Mr. Jackson intensified after Craig told police that Mr. Jackson’s brother had spent the night in the apartment, while Mr. Jackson showed up 15-20 minutes before the police arrived.

The police ordered Mr. Jackson not to move and patted him down for weapons. Officer Chih then left the room to coordinate a show-up, while two other officers remained with Mr. Jackson. Mr. Jackson began acting suspiciously, and then, pretending he was tired, laid back and began reaching underneath the sheet at the head of the bed. After Officer Chih took Mr. Jackson outside for the show-up, a gun was found underneath the sheet where Mr. Jackson had been reaching.

Outside, a witness identified Mr. Jackson immediately.

Issue: Did the police have reasonable articulable suspicion to seize Mr. Jackson based on Ms. Thompson-Wright’s tip?

Holding: Yes. Looking at the “overall reliability” of the tip, the DCCA opined that although Ms. Thompson-Wright did not observe the robbery herself, her tip was more reliable than an anonymous tip because she “was present before, during, and after the police investigation of her tip” and she therefore “could be held accountable for the information she gave.” The DCCA went on to note that there was nothing that suggested Ms. Thompson “had any bias or motive to falsify information.” And although Ms. Thompson-Wright’s information came from “the neighborhood,” there was enough particularized information that “the general public would be unlikely to have”—the picture and exact address—and “the fact that the information turned out to be correct enhanced the overall reliability of the tip.”

The DCCA finally pointed out other “corroborative circumstances under which Ms. Thompson-Wright’s tip panned out”: Ms. Lewis denied that anyone else in the apartment, yet the police found Mr. Jackson and his brother in the back; the brothers were behaving nervously; and Officer Chih learned that Mr. Jackson arrived at the apartment shortly before the police got there.

Thus, assessing the totality of the circumstances, the police acted reasonably when they ordered Mr. Jackson not to make any sudden moves, frisked him for weapons, and detained him pending the show-up.

Dissent: Judge Beckwith dissented, asserting that “the tip and the photograph—although transmitted through an non-anonymous intermediary, complainant Corinthea Thompson’s mother—came, for all intents and purposes, from an anonymous source (“the neighborhood”), whose reputation could not be assessed and who could not be held responsible if the allegations turned out to be fabricated.” In Judge Beckwith’s opinion, “the tip was completely conclusory” and there was no way for the police to assess its reliability. And the other facts pointed out by the majority—the Lewises’ possible dishonesty about no one else being in the apartment and “the nervousness of Mr. Jackson and his brother in the presence of the officers”—were insufficient to remedy these deficiencies.

Of Note: Mr. Jackson also argued that the old carrying a pistol statute, formerly D.C. Code § 22-4504(a), was facially unconstitutional. The DCCA rejected that argument because a “separate division of the court recently considered and rejected the same attack upon the same statute.” See In re T.M., 14-FS-199, 2017 WL 1034394 (D.C. Mar. 16, 2017).  DH

Read full opinion here.

The DCCA’s Latest Conspiracy Theory: Liability Imposed Based on Unsolicited, Unheeded Advice about How to Commit the Crime

In re T.M. (decided March 16, 2017)

Players: Chief Judge Washington, Associate Judge Beckwith, Senior Judge Reid.  Opinion by Chief Judge Washington.  Partial dissent by Judge Beckwith.  PDS for T.M.  Trial Judge: Florence Pan.

Facts: T.M. was charged and tried on a 22-count indictment in relation to the August 2013 shooting of seventeen-year-old J.W.  The evidence showed that T.M. and a group of more than ten approached J.W. and four others, who were smoking marijuana in an alley behind a high school after a football game.  Three from J.W.’s group identified T.M. as a fellow student who had been in a physical altercation with J.W. the year before.  When J.W.’s group started walking out of the alley toward a nearby Safeway, T.M.’s group followed.  One person from J.W.’s group testified that T.M. was pointing a gun in their direction but slightly downward, toward the ground.  This witness and one other testified that they heard an unidentified male state, “don’t do it in the light” or “if you’re going to shoot it, get out of the light.”  As J.W.’s group crossed an intersection, they heard a single gunshot and saw J.W. fall.  A bullet penetrated both of her legs.  An ambulance transported J.W. to a hospital where she was treated for a broken right leg.  Following a bench trial, the trial court adjudicated T.M. delinquent for several offenses, including carrying a pistol in violation of now-repealed D.C. Code § 22-4504(a) (2013) and conspiracy to commit murder or assault with a dangerous weapon.

Issue 1: Did the evidence presented prove beyond a reasonable doubt that T.M. conspired to commit murder or assault with a dangerous weapon?

Holding 1: Yes.  The evidence showed that T.M. arrived in an alley with a large group, waited for J.W. and her friends, and promptly followed them.  The evidence also showed that T.M. was openly carrying a weapon when she was seen among the group of teenagers and at least one – the unidentified male – followed and advised her on how to carry out the shooting.  His statement (“don't do it in the light”) could reasonably indicate that he had knowledge of T.M.’s “plan to shoot” and intended to help T.M. avoid detection.

Judge Beckwith writes in dissent that, contrary to the trial court’s reasoning, it is impossible to conclude beyond reasonable doubt, based on the fact that an unidentified male told T.M. to not “do it in the light,” that T.M. engaged in “some prior discussion” during which they formed an agreement to commit the shooting.  “The evidence established at most that another person who was expecting T.M. to shoot a gun gave her advice about how to avoid detection.”

Issue 2: Did the trial court plainly err in adjudicating T.M. delinquent for carrying a pistol under D.C. Code § 22-4504(a), given that statute’s purported facial unconstitutionality under District of Columbia v. Heller, 554 U.S. 570 (2008)?

Holding 2: No.  As of the appeal in this matter, this Court had not interpreted Heller to extend Second Amendment protection to carrying a pistol outside the home or place of business.  While Palmer v. District of Columbia, 59 F. Supp. 3d 173 (D.D.C. 2014) did interpret Heller that way, that decision is at best persuasive and its weight has been significantly undermined by the subsequent en banc reversal of Peruta v. County of San Diego, on which it chiefly relied.  742 F.3d 1144 (9th Cir. 2014), rev'd en banc, 824 F.3d 919 (9th Cir. 2016).  Unlike the statute at issue in Conley v. United States, 79 A.3d 270 (D.C. 2013), former § 22-4504(a) does not offend any basic principle of due process or comparably well-settled Second Amendment principle.

Read full opinion here.