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U.S. judge upholds legality of charging D.C. gun cases in federal court

The D.C. attorney general and ACLU-DC had opposed crackdowns on gun crimes in Black wards as discriminatory and violations of home rule

From right, D.C. Mayor Muriel E. Bowser, Police Chief Robert J. Contee III and Deputy Mayor for Public Safety Chris Geldart on April 25 with guns collected from the Van Ness shooter. (Bill O'Leary/The Washington Post)

A federal judge on Monday upheld the legality of a Trump-era policy of charging certain gun crimes in federal court, saying it did not violate the District’s Home Rule Act or the authority of D.C. Superior Court.

Two District men convicted under the “felon-in-possession” initiative had challenged the policy, which was announced in 2019, arguing that federal prosecutors had usurped D.C. authorities’ power to enforce similar local laws by “categorically” prosecuting certain charges federally.

Their stance won support from nearly 90 former federal prosecutors who asked Attorney General Merrick Garland and the U.S. attorney in Washington to abandon the policy amid concerns about long prison sentences that disproportionately affect Black residents.

In a 62-page opinion, U.S. District Judge Emmet G. Sullivan disagreed, faulting prosecutors’ treatment of some defendants but finding that “the FIP Policy does not ‘nullify’ the D.C. Code felon-in-possession offense or ‘strip’ the Superior Court of its adjudicatory role.”

Read the judge's opinion here

Instead, the judge sided with the Justice Department, which argued that prosecutors have broad discretion to make charging decisions and to target people with a history of committing violent crimes. Instead of being applied in any “categorical” manner, the policy was levied based on prosecutors’ “evaluation of an individual’s particular circumstances,” Sullivan wrote.

Notwithstanding the District’s long campaign for a locally appointed top prosecutor, the federal government has reserved the power to prosecute felonies in the nation’s capital to the presidentially appointed U.S. attorney, the judge said.

“It is clear that Congress granted the District the authority to enact local criminal laws, subject to Congress’s right to repeal, and therefore control over local penal policy, but also that Congress has expressly excluded the U.S. Attorney’s Office from the checks and balances of the D.C. government,” Sullivan continued.

“Ultimately, ‘nothing in the language, structure, or legislative history of’ either [the Court Reform Act or the Home Rule Act] suggests that the U.S. Attorney should choose to prosecute one offense over another,” he concluded.

However, Sullivan ruled that judges retain broad discretion at the time of sentencing and can apply both federal and D.C. sentencing guidelines, within certain limits.

The opinion came in cases brought by John Victor Reed, who moved to dismiss his one-count indictment from March 2019 on a charge of unlawful possession of a firearm by a felon, and Jarome F. Simmons, who similarly moved to dismiss his November 2018 case after it was transferred from D.C. Superior Court to the U.S. District Court for Washington, claiming prosecutorial harassment.

Represented by federal defenders and Harvard law professor Andrew Crespo, Reed argued that the program unlawfully nullifies the authority of local gun statutes and courts, is arbitrary and capricious, and retaliates against defendants who seek pretrial release in D.C. Superior Court. The American Civil Liberties Union of the District of Columbia and the D.C. Attorney General’s Office filed friend-of-the-court briefs in the case.

Justice Department pressed to stop charging D.C. gun cases in federal court

At a February 2019 news conference announcing the program, then-U.S. attorney Jessie K. Liu declared that the initiative would be phased in citywide so that by later in 2019, authorities would be “bringing essentially all of these in [U.S.] District Court.” The effort was backed by D.C. Mayor Muriel E. Bowser (D) and then-D.C. police chief Peter Newsham as the city faced a 40 percent jump in homicides, but it was opposed by 10 of 13 D.C. Council members.

On average, prison sentences are twice as high in federal court. Between Feb. 1, 2020, and Feb. 28, 2021, the U.S. attorney’s office charged 87 “felon-in-possession” cases federally and 217 locally.

But in answering Reed’s lawsuit, prosecutors revealed that the crackdown targeted three predominantly Black wards — Wards 5, 7 and 8 — and was not enforced citywide as announced. The disclosure drew condemnation that city leaders had signed off on a policy exacerbating what critics call problems of mass incarceration and overpolicing in Black communities, although prosecutors said the effort was to focus on the areas of the District with the most crime.

After prosecutors’ disclosure in summer 2020, Bowser withdrew her support for the policy as implemented, and Newsham said he was unaware of the policy’s geographic targeting. Deputy Mayor Chris Geldart said Bowser continues to support the program.

D.C. crackdown on gun crime targeted Black wards, was not enforced citywide as announced

Then-acting U.S. attorney Michael R. Sherwin said he ended the geographic focus in August 2020. He said that it was not racially discriminatory but that the “most equitable” way to proceed was to base charging decisions on suspects’ prior relevant conduct, including their criminal history, whether they had previous gun charges, their age and whether a violent offense was committed, not just the place of arrest.

Justice Department lawyer David Goodhand said the initial approach was driven by statistics and targeted the areas of the city with the highest rates of crime.

The District’s murder rate climbed nearly 40 percent in 2018, even though many other large cities saw a decline in killings that year. Of 160 homicides in the city that year, 79 percent were committed with a gun. Three-fourths of homicides and nearly two-thirds of 1,926 illegal guns seized that year took place in three police districts — the 5th, 6th and 7th Districts — while police reported that 40 percent of homicide suspects had a prior gun arrest and 26 percent had a prior felony conviction.

Unlike other cities with local or state prosecutors, D.C.’s governance structure means that the U.S. attorney handles serious local crimes. D.C. Attorney General Karl A. Racine (D) opposed the policy, saying it undermines D.C.’s own laws and authority.

“This policy sidesteps our local courts, exacerbates overincarceration while not improving public safety, and fails to enable those in the criminal justice system for these charges to benefit from access to public safety reforms in the District,” Racine spokeswoman Abbie McDonough said. “District residents deserve fairness — and we’ll continue to fight for it every day.”

On Monday, ACLU-DC Legal Director Scott Michelman said in an interview that the ruling reflected the law’s “extreme deference” to prosecutors, but he called the lawsuit critical to revealing the policy’s racially discriminatory implementation and to highlighting the case for expanding home rule.

D.C. attorney general opposes pushing District gun cases into federal court

“Without statehood, we cannot fully implement the criminal policy views of our community just as every state can. Instead, we are subject to the whims of a federally appointed official in whose selection our residents have no voice,” Michelman said. “Certainly a policy so obviously racist in its application would never have been implemented by an elected D.C. attorney general.”

Both Reed and Simmons argued that the government adopted or applied the policy in retaliation against defendants who sought pretrial release in D.C. Superior Court. Before its implementation, judges in the local D.C. court granted bond in 55 percent of cases, compared with 23 percent in federal court.

Simmons, whose true name is Bernard Byrd, was arrested on Nov. 15, 2018, and released three days later by a Superior Court judge to high-intensity supervision, when he was indicted on federal charges alleging the same conduct. He was arrested a second time on Nov. 30 and released by a U.S. magistrate judge on similar conditions.

Sullivan did not endorse the government’s overall conduct, which he called “strikingly similar” to what he has characterized in the past as “disturbing” and “outrageous” abuses.

Simmons was arrested and jailed twice based on the same alleged conduct, actions “disruptive to Mr. Simmons’ life” at the very least, the judge said, threatening his placement in a job training program and meetings with a social worker.

But the judge said neither Reed nor Simmons had shown that the government acted out of vindictiveness, to retaliate or to gain a tactical advantage, as opposed to responding to the defendants’ alleged danger to the community or to seeking a “more just sentence.”

In oral arguments, Sullivan said that he was sympathetic to the argument as a lifelong D.C. resident but that the court is constrained by past Supreme Court rulings that caution judges against second-guessing prosecutorial decisions.

“If I could rule from my heart, you would win in a heartbeat, but I can’t rule from my heart,” Sullivan said. He noted that because D.C. is not a state, city officials do not have exclusive authority when it comes to prosecuting crimes in the city.


This article has been updated to include comment from the office of D.C. Mayor Muriel E. Bowser.