DC Court of Appeals Holds Travelling Firearm Law Unconstitutional

On September 26, 2013, a divided three-judge panel of the District of Columbia Court of Appeals struck down a D.C. law that had been effective since 2009.

D.C. Code Section 22-2511, entitled “Presence in a Motor Vehicle Containing a Firearm,” made it a felony offense for a person to be physically present in a vehicle that contained an illegally registered or improperly transported firearm.  The offense was punishable by up to five years of imprisonment, up to a $5,000 fine, or both.  The penalties were doubled for any second or subsequent offense.

In overturning the statute, the Court of Appeals found the law violated the Due Process Clause of the Constitution.  The Court enunciated two reasons for its ruling of unconstitutionality.

First, the law improperly shifted the burden of proof beyond a reasonable doubt to the defendant, rather than the prosecutor.   Specifically, the law made it a crime to ride in a motor vehicle with knowledge that it contains an illegal firearm.  However, the law then required the defendant to prove as an affirmative defense that he no longer intended to remain in the vehicle after learning of the firearm’s presence.  In essence, rather than requiring the prosecutor to prove the defendant’s continued presence in the vehicle with knowledge of the firearm, it required the defendant to prove that he did not.  This type of burden-shifting in criminal law has been deemed in violation of due process for decades.

Second, the law unconstitutionally made it a felony offense to fail to take a legal action, even if he did not know he was supposed to take a required legal action.  The Court called this an impermissible “crime of omission.”  Ever since the Supreme Court’s 1957 decision in Lambert v. California, it has been a violation of due process to criminally punish a lack of action.  In sum, because the law punished a person for merely knowing the firearm was in the vehicle and being present, it criminalized a passive act that breached due process.  The Court of Appeals held that this constitutional defect could not be cured by statutory interpretation, and the law was void on its face.

While the Court of Appeals aptly detailed the major defects with the firearm-travel law, those were not its only faults.  Another constitutional problem was present in the notice requirement of the Due Process Clause.  The Court of Appeals touches on this issue, but qualifies it as part of the “crime of omission” defect.  In truth, due process requires that a person may only be convicted of a crime that they were reasonably on notice was a violation of the law.  Prior to this recent decision of the Court of Appeals, it is questionable whether many D.C. citizens knew that merely riding in a vehicle with a firearm was a crime, much less a possible felony offense.

The D.C. Court of Appeals successfully ensured that due process rights of D.C. citizens be protected by striking down this law.  Hopefully, the D.C. Council will take care not to create unconstitutional crimes of omission in the future.