Can it be a crime to simply ride in a car in which you know there is an illegal gun? In a 2-1 opinion by Judge Glickman today, the D.C. Court of Appeals says no.
The law in question is a 2009 D.C. law, D.C. code § 22-2511, which criminalizes the knowing presence in a motor vehicle containing a firearm. (“PMVCF” for short.) The law was supposed to make it easier to convict the occupants of a car where a gun is found, when the government can’t prove who actually owned it or had control over it.
The court found two constitutional problems with the law: first, it shifted the burden away from the government and onto the defendant regarding whether the defendant’s presence in the car was voluntary or involuntary. But the court wrote this constitutional flaw would not require striking down the statute entirely, but rather modifying the law to put the burden on the government.
More troubling to the court was that this was a “crime of omission.” In other words, if you learn that there’s an illegal gun in the car, failing to get out of the car as soon as you can is a crime — and laws that criminalize the failure to do something are very rare. The court compared it to a 1957 Supreme Court case in which Los Angeles required convicted felons to register with the city when they moved there; the Supreme Court found that law unconstitutional, because it was an unexpected and unusual crime of omission.
Although ignorance of the law is no excuse, you simply wouldn’t expect to be punished just for being around someone who’s breaking the law. The court pointed to one way in which the law is illogical — you can hang around with someone all day and go anywhere with them while they’re carrying an illegal gun, but don’t you dare get into a car with them. This is not what an ordinary person would expect.
Judge Thompson concurred in the judgment only, finding that the jury was improperly instructed and that the defendant should get a new trial. She dissented, however, from the court’s decision to hold the statute unconstitutional. She argued the 1957 Lambert case was an anomaly, and has almost never been used to strike down other statutes.
The defendant’s conviction was reversed, and the statute prohibiting presence in a motor vehicle containing a firearm was struck down. For now, PMVCF is no longer a crime in the District. But given the hard line DC takes on gun charges, it’s probably still not a good idea.
