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January 09, 2013

Prosecutorial Discretion

When National Rifle Association chief executive Wayne LaPierre appeared on NBC's "Meet the Press," host David Gregory confronted him with a high capacity magazine in his hand and asked,

“Here’s a magazine for ammunition that carries 30 bullets,” Gregory says. “Now, isn’t it possible that if we got rid of these” — he sets it down and picks up a smaller one — “if we replaced them and said, ‘Well, you can only have a magazine that carries five bullets or 10 bullets,’ isn’t it just possible that we could reduce the carnage in a situation like Newtown?”

The answer is, "No," it won't reduce the carnage, and that's how Wayne LaPierre responded.  But the more interesting thing about their conversation is that it happened in Washington, DC where possession of a 30-round magazines, such as the one in David Gregory's hand at the time, is already illegal.  What's more, NBC asked the DC police, would it be OK if they used the magazine as a prop.  The answer was "No."

“NBC contacted [D.C. police] inquiring if they could utilize a high capacity magazine for their segment. NBC was informed that possession of a high capacity magazines is not permissible and their request was denied. This matter is currently being investigated.” A police spokeswoman confirmed that the e-mail was authentic.

Gregory appears to have used a large-capacity ammunition magazine anyway.

The DC police had little choice but to investigate.  The result?  The case has been given to the DC Office of the Attorney General

In an e-mail, a spokeswoman for D.C. Police Chief Cathy L. Lanier said her department has “completed the investigation into this matter, and the case has been presented to the OAG for a determination of the prosecutorial merit of the case.”

Possessing a magazine capable of holding 10 or more rounds of ammunition, even if empty, is a misdemeanor punishable by up to one year in jail and a $1,000 fine.

Should Gregory, the fabulously wealthy host of NBC's award winning "Meet the Press," be thrown in jail because he used a prop for dramatic effect while he interviewed the CEO of the National Rifle Association?  Even the NRA President doesn't think so.

NRA President David Keene told CNN last month that he did not think Gregory should be prosecuted, saying the incident shows “in a very graphic way, perhaps not intentionally, but in a graphic way just how silly some of these laws are.”

It's in the hands of the OAG.  DC's head prosecutor may exercise discretion

Prosecutorial discretion refers to the fact that under American law, government prosecuting attorneys have nearly absolute powers. A prosecuting attorney has power on various matters including those relating to choosing whether or not to bring criminal charges, deciding the nature of charges, plea bargaining and sentence recommendation. This discretion of the prosecuting attorney is called prosecutorial discretion.

Call me mean spirited, but I have mixed feelings about this.  More and more we find ourselves living in a society where laws are for the little people.  Like me.  I have no doubt that if I ever made the mistake of putting my hands on a high capacity magazine while inside the DC city limits and in sight of the law, David Gregory would heartily approve of me going to jail for a year and paying $1,000 for the privilege.

On the one hand I don't wish Gregory any harm.  But on the other, if punishing somebody for possession of a high capacity magazine is such a good idea, as he seemed to argue in his interview, shouldn't he, too, be subject to that law?

I can't wait to hear what the DC OAG decides.  David Gregory asked for permission to use the magazine and was refused.  By using it anyway, he deliberately and flagrantly broke the law.  On national TV, no less.  How's that for "in your face!"

It's true that this magazine law is pretty much useless, particularly as it applies to the situation with the host of "Meet the Press."  Why should anybody care if Gregory had a high capacity magazine when he didn't have a rifle to go with it?  There was no threat.  Nobody would be protected if he couldn't bring it onto his show.

The same is true of gun control laws in general.  They don't protect anybody.  Let me step back.  They have always been intended to protect someone, but it's not who you might think.  Gun contols laws were first imposed on U.S. citizens in the "Black Codes" of post Civil War south. 

Penal Code

Section 1. Be it enacted by the legislature of the state of Mississippi, that no freedman, free Negro, or mulatto not in the military service of the United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry firearms of any kind, or any ammunition, dirk, or Bowie knife; and, on conviction thereof in the county court, shall be punished by fine, not exceeding $10, and pay the costs of such proceedings, and all such arms or ammunition shall be forfeited to the informer; and it shall be the duty of every civil and military officer to arrest any freedman, free Negro, or mulatto found with any such arms or ammunition, and cause him or her to be committed for trial in default of bail.

Back then it was the Ku Klux Klan that was looking for protection.  The Klan wanted their raids on black communities to be risk-free

Previous issues of America’s 1st Freedom have told the story of how the defeated Confederate states enacted the Black Codes, which explicitly restricted gun possession and carrying by the freedmen. Sometimes these laws facilitated the activities of the terrorist organization Ku Klux Klan, America’s first gun control organization. The top item on the Klan’s agenda was confiscating arms from the freedmen, the better to terrorize them afterward.

Outraged, the Reconstruction Congress responded with the Freedmen’s Bureau Bill, the Civil Rights Act of 1866, the 14th Amendment and the Civil Rights Act of 1870—every one of them aimed at racial subordination in general and racist gun control laws in particular.

President Ulysses S. Grant (1869-77), who would later serve as president of the National Rifle Association, vigorously prosecuted Klansmen, and even declared martial law when necessary to suppress KKK violence.

Reconstruction formally ended in 1877 with the inauguration of President Rutherford B. Hayes and the withdrawal of federal troops from the South. Even before that, white supremacist “redeemer” governments had taken over one Southern state after another.

Because the new 14th Amendment forbade any state to deny “the equal protection of the laws,” gun control statutes aimed at blacks could no longer be written in overtly racial terms. Instead, the South created racially neutral laws designed to disarm freedmen. Some laws prohibited inexpensive firearms while protecting more expensive military guns owned by former Confederate soldiers. Meanwhile, other laws imposed licensing systems or carry restrictions. As a Florida Supreme Court justice later acknowledged, these laws were “never intended to be applied to the white population” (Watson v. Stone, 1941).

In the bad old days the color of your skin determined the extent to which you were protected by law and whether or not you would be allowed use a gun to protect yourself.  The 14th amendment was adopted to fix that.  But as always has been the case, we have legislatures tailoring laws so that favored constituencies are exempted.

And when all else fails we have prosecutorial discretion. It will be interesting to see if it comes into play here.  After all, David Gregory is a very popular and influential guy.  Is there really any reason he should be subject to the same laws as you and me?  I'm sure he doesn't think so.

Posted by Tom Bowler at 03:40 PM | Permalink

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