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The District of Crime

Monday, April 24, 2023

The District of Crime

D.C. stands for District of Columbia, but one may be excused for thinking that lately, it stands for Defend Criminals, or Delusional Council, or Don’t Care. 

The D.C. police force has now “shrunk to a half-century low as officers leave faster than they can be replaced,” and Metropolitan Police Department (MPD) Chief Robert J. Contee III expects the number to fall still further by the end of fiscal year 2024. Although the proposed D.C. budget for the new fiscal year allocates funds for recruiting and bonuses for new police hires, the force is currently losing between 30 and 35 officers a month, and spending on overtime due to officer attrition is costing the District over a million dollars a year.   

Greggory Pemberton, the chairman of the D.C. Police Union, which represents the 3,200 officers, detectives and sergeants of the MPD, testified before a congressional committee recently and laid the blame for the “mass exodus of sworn law enforcement officers and an exponential increase in violent crime” squarely on the D.C. Council and its experiments in progressive law enforcement reform. Pemberton pointed to several laws that council members have proposed since 2020, including a “Comprehensive Policing and Justice Reform Emergency Amendment Act” (which, according to him, has been before the council seven times), the Law Enforcement Present Sense Impression Act of 2021, and the Reducing Law Enforcement Presence in Schools Act of 2021. These legislative efforts correspond, he says, with “blatantly awful” rhetoric used by the council members in relation to policing and the MPD.

Pemberton states that since 2020, “the MPD has lost 1,194 officers, one-third of the department…[and] nearly 40% [] of these separations were resignations; employees who just walked away from a career with MPD.”

This “ongoing crisis” in policing, he adds, is occurring against a backdrop of exponential increases in violent crime. “Over the past six years of plummeting numbers of police, homicides have increased 75%, armed carjackings have increased 227%, armed robberies  have increased 46% and most tragic and alarming, is that last year alone the juvenile homicide rate doubled. These statistics I have mentioned are citywide. If one parses out the data to the neighborhood level, some of these communities have grown to look like warzones.”

Despite the lack of any indication that these policies have reduced lawlessness and crime, District lawmakers continue to “reimagine” public safety. An overhaul of the District’s criminal code, the Revised Criminal Code Act of 2022 (RCCA), was passed unanimously by the council late last year. The law would “eliminate most mandatory minimum sentences, allow for jury trials in almost all misdemeanor cases and reduce the maximum penalties for offenses such as burglaries, carjackings and robberies.” 

D.C. Mayor Muriel Bowser vetoed the bill, citing her “very significant concerns,” first of which was that the RCCA “reduces sentences for illegally carrying a gun in our streets” (emphasis in original) from a maximum of 15 years to four years, even though “firearm offenders recidivate at a higher rate” and are “more likely to be rearrested for serious crimes.” An almost unanimous D.C. Council opted to override her veto and ignore these concerns.

Last week, Zachary Parker, a D.C. council member and self-described “visionary public servant,” announced a new legislative effort aimed at addressing crime. The “Establishment of Reasonable Controls for the Firearm Industry Amendment Act of 2023” would allow suits against the firearm industry for harms caused by the manufacture or sale of a “firearm-related product” and the failure to implement measures to prevent firearm trafficking, the loss or theft of firearms, failure to comply with obligations to report the sale, transfer, theft or loss of a firearm, or the unlawful manufacture, sale, possession, marketing or use of a firearm-related product. In a statement, Parker describes the bill as “a meaningful step towards measured responsibility for the ongoing trauma gun violence inflicts on District residents.”     

In summary, the bill would apply to any “firearm industry member” (a “person, firm, corporation, company, partnership, society, joint stock company, or any other entity or association engaged in the manufacture, distribution, importation, marketing, wholesale, or retail sale of firearm-related products”) if the product is sold, made, or distributed in D.C., intended to be sold or distributed in the District, or simply possessed in the District provided it was reasonably foreseen that such possession would occur (sec. 1101(4)).

Sec. 1102, on the responsibilities of firearm industry members, directs that such entities must implement and enforce “reasonable controls and procedures.” These include “prevent[ing] the sale or distribution of a firearm-related product to a straw purchaser, a firearm trafficker, a person prohibited from possessing a firearm under state or federal law, or a person who the firearm industry member has reasonable cause to believe is at substantial risk of using a firearm-related product to harm themselves or another or of possessing or using a firearm-related product unlawfully,” and preventing “the unlawful … use of a firearm-related product.”

The bill authorizes the District’s Attorney General to bring civil actions against firearm industry members who are in violation or “threaten to violate” these requirements, and allows private citizens, companies and others to bring their own civil actions with respect to an alleged violation. 

By far the most expansive part of the bill is Section 1105, which reads, “An intervening act by a third party, including, but not limited to, criminal misuse of a firearm-related product, shall not preclude a firearm industry member from liability under [this] title.”

Where does one begin with this blatantly awful bill?

There isn’t a large “firearm industry member” community in D.C. and it’s not driving the rampant crime wave. In 2020, when the only federal firearms licensee (FFL) in D.C. who processed firearm transfers (but kept no inventory) retired, the MPD itself became an FFL, solely to process transfers. Currently, the MPD webpage listing FFLs in the District shows precisely two authorized dealers for the entire District, and these are already tightly regulated by both federal and local law.

A federal law, the Protection of Lawful Commerce in Arms Act (2005) (PLCAA), which was enacted specifically to curtail lawsuits against the industry based on the criminal acts of third parties, prohibits “civil liability actions from being brought or continued against manufacturers, distributors, dealers, or importers of firearms or ammunition for damages, injunctive or other relief resulting from the misuse of their products by others.” As explained by the NSSF, this “common sense law” was enacted by a broad bipartisan margin after 33 states passed similar laws incorporating existing legal principles of liability. Rather than giving the gun industry any kind of special immunity, the law ensures that “responsible and law-abiding federally licensed manufacturers and retailers of firearms and ammunition are not unjustly blamed in federal and state civil actions for ‘the harm caused by those who criminally or unlawfully misuse’ these products that function as designed and intended.” The proposed D.C. bill completely ignores the PLCAA.

The bill also ignores the central role that criminals, the trigger-pullers, play in the ongoing crisis in the Nation’s Capital. Section 1105 of the bill subverts the standard rules regarding liability and vicarious liability by redirecting the legal responsibility for violent, illegal acts from the criminal perpetrator who personally and directly caused the harm, to a law-abiding defendant. Rather than holding accountable the individuals who illegally use firearms to commit violent acts, the bill places the blame on the “firearm industry member.” As with the RCCA, the message is clear: individuals who engage in violent, illegal conduct aren’t the problem.

Changing the rules like this and more ineffective legislation will have no impact on public safety. The D.C. Police Union appears to agree – in an April 13 tweet, the union responded to Parker’s announcement about the new bill with, “You should change the name of this bill to the ‘Acting Like We Care About Violent Crime When We Really Don’t Care About Violent Crime Act of 2023.’”

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