With violence on the rise in D.C., a popular moderate politician proposed legislation allowing for warrantless searches of formerly incarcerated people in a bid to get more illegal guns off the street. That sentence could just as easily describe Mayor Muriel Bowser in 2015 or Ward 2 Councilmember Brooke Pinto today. Plainly, history has a way of repeating itself in D.C. politics.
Eight years ago, Bowser’s push to allow police to search the homes of people recently released from prison died a fiery death amid fierce protests from racial justice activists and civil rights advocates. Only time will tell what will become of Pinto’s proposal, which the Council’s judiciary committee chair introduced Monday in response to building pressure for lawmakers to address crime in the city. But the early rumblings among the District’s advocacy community and from leaders of the local judiciary suggest this bill will draw similar resistance, as it goes even further than Bowser’s failed proposal.
Specifically, Pinto’s legislation requires that anyone convicted of a gun crime and released before the end of their sentence (whether it’s via parole, probation, or supervised release) can be searched by police at any time, without a warrant, if they’re in a public place. Loose Lips had to chuckle that her bill specifies that “it is not the intent of the Council to authorize law enforcement officers to conduct searches for the sole purpose of harassment,” as if simply wishing away decades of police abuse will be possible with this bit of legislative text. Others are similarly skeptical that this bill will do anything other than make it easier for police to stop and search anyone they want based solely on the vague impression that they look like a criminal.
“It will make jump-outs a whole, whole lot worse,” predicts Patrice Sulton, the founder of the DC Justice Lab and a longtime civil rights attorney, referring to the Metropolitan Police Department’s tendency to jump out of unmarked cars and suddenly search people without probable cause. MPD has frequently denied that it still uses these tactics, though there is plenty of evidence to suggest otherwise.
“In practice, the law would encourage all police agencies in D.C. to stop and frisk, and at a minimum harass, all young Black men they see, as the young gentlemen wear neither yellow nor any other stars to indicate their release status,” Gretchen Franklin, who has worked as a court-appointed defense attorney in D.C. for decades, wrote in an email to the Council subsequently forwarded to LL. “The result will be a free-for-all in which police stop young men at random and detain them for however long it takes to determine whether they have been previously accused of a crime. The damage to the relationship between the Black community and the men and women in blue will be deep and wide. Is this really what we want in our community?”
Pinto argues that her legislation (styled the “Addressing Crime through Targeted Interventions and Violence Enforcement” or “ACTIVE” Act in a bit of branding that would make the cheesiest member of Congress blush) is designed to target the people most likely to commit new crimes. She believes it’s modeled on a sound policy in California, which requires anyone released from prison early to agree to such searches, and thinks it could make a difference in preventing shootings before they happen.
“We have certain conditions sometimes placed on people who are not behind bars,” Pinto tells LL. “Those could be things like check-ins with a parole officer or a curfew…We just need to make sure that, for people experiencing those conditions, we’re getting the balance right so that they don’t have access to illegal guns.”
Instead of preventing crimes, Sulton expects that Pinto’s proposal could actually drive recidivism “in the opposite direction.” Evidence from other states shows that similar policies tend to make it harder for returning citizens to reintegrate back into their communities, in part because no one wants to associate with someone who could be questioned by police at any moment of the day.
“It drives another wedge between them and the home they’re returning to if they’re walking around with a scarlet letter on their back,” Sulton says. “It’s just another level of tyrannical government practice, really.”
Pinto says this particular idea came directly from the United States Attorney’s Office for D.C., which prosecutes most crimes committed by adults in the city, and that fact does not particularly surprise LL. The office has been under heavy fire from Bowser and other conservative voices in the city for its failure to prosecute most people arrested by MPD. And U.S. Attorney Matthew Graves has responded to that pressure by pointing the finger at the D.C. Court of Appeals, which has ruled that MPD used illegal search tactics in several prominent cases, reversing convictions and making life a bit more complicated for police and prosecutors.
The problem for Pinto and the prosecutors is that the judges who issued these rulings aren’t going anywhere. They can try pressuring the appeals court publicly and changing the law to circumvent them, but the judges serve 15-year terms and are therefore immune to many of the political considerations affecting other actors in the system.
Judge Anna Blackburne–Rigsby and Judge Anita Josey–Herring, the chief judges of the D.C. Court of Appeals and Superior Court, respectively, even took the unusual step of sending a letter warning that Pinto’s proposal might violate the Constitution.
“Without knowing the legal basis for California’s law permitting individuals on probation, parole, and pre-trial release be subject to warrantless searches, which the proposed legislation seeks to implement in the District of Columbia, the proposed legislation appears to violate the Fourth Amendment’s prohibition on warrantless searches of individuals without probable cause,” the judges wrote in a letter sent to Pinto on Monday.
Local attorneys echo the judges’ reaction.
“This legislation will certainly be subject to successful constitutional challenges,” attorneys Lynne Bernabei and Michael Bruckheim wrote in an email to the Council Monday forwarded to LL. Bernabei represents MPD Sgt. Charlotte Djossou, who claims in a lawsuit that her supervisors retaliated against her after she complained about the use of jump-outs, while Bruckheim represents four men suing the city in federal court over the same sort of warrantless searches.
“Litigation over additional unconstitutional searches is likely to make the community-police relationships even worse,” they added in the email.
Anyone sincerely concerned with seeing more arrests resulting in criminal charges would be better suited pushing for better police training and different tactics, Sulton says, to ensure that MPD actually makes searches that can hold up in court. The USAO has admitted that it doesn’t prosecute many of MPD’s arrests because it expects judges will toss them out based on body camera evidence.
LL wonders why there isn’t similar pressure on MPD to root out misconduct in its ranks, which can lead to cases getting dropped? Astute City Paper readers may remember that 19 officers working in Southeast D.C. are currently under criminal investigation for questionable searches—an unfolding scandal that has already resulted in the dismissal of dozens of criminal charges while communities are continually plagued by violence.
“Their theory? We know we have no right to search you illegally, but if we search you illegally and find a gun you may not be charged but we will have your gun,” Franklin wrote in her email, noting that some of the officers under investigation were seizing guns but not making arrests. She fears that those tactics have already become an “epidemic” around the city based on cases she sees, and would only grow worse under Pinto’s proposal.
LL suspects that the reason Pinto is pursuing this avenue instead of pushing MPD to shape up is largely political. After a violent summer and a resulting rise in public anxiety about crime, it’s not especially popular for any politician to be seen as somehow criticizing the police. That goes double for a politician up for reelection next year like Pinto is (particularly with her predecessor, Jack Evans, dropping hints about a law-and-order-infused comeback bid).
Pinto’s approach certainly holds some appeal in certain corners of the city, who’d like to see police freed from pesky concerns about civil liberties in order to address rising crime in the city. LL’s heard this argument from Pinto’s Whiter, wealthier base in Ward 2, but also from Black leaders east of the Anacostia River who bear the brunt of the crime and violence in D.C. It’s a pitch that calls to mind Nazi jurist and theorist Carl Schmitt’s old ideas about the “state of exception,” which theorized that a leader was justified in breaking the rule of law if it meant serving the greater good and averting catastrophe. (The problem, of course, is that this “state of exception” generally never ends.)
“Residents are pleading with the city to do more to keep them safe,” Pinto says, noting that she released this bill alongside a host of other public safety proposals her committee will consider this fall.
It’s too early to tell yet whether these ideas will have a broader appeal on the Council. Pinto controls the relevant committee, so she can ensure the legislation gets a hearing. She’s likely to pick up Bowser’s support, too, given how closely the pair have been aligned on public safety issues. The rest of the Council (minus Ward 4 Councilmember Janeese Lewis George) rushed to support Pinto’s last big crime bill before the summer recess, but that was much more limited in scope. When asked about Pinto’s bill at a press conference Monday, Council Chair Phil Mendelson was noncommittal, only repeating his familiar talking point that he is “very sensitive to folks looking to the Council on this and then putting blame on the Council for not solving the problem.”
“My goal in releasing all of these is to make sure everybody is on notice of what my priorities are,” Pinto says. “But they’re invited and welcome to be part of this process.”
A key weather vane here will likely be At-Large Councilmember Kenyan McDuffie. Eight years ago, he vehemently opposed Bowser’s similar bill and blocked it from advancing out of the judiciary committee, which he chaired at the time. But that was a very different political reality. Back then, McDuffie was championing his own police reform bill (the NEAR Act) and openly clashing with Bowser as he mulled a mayoral challenge. Those days are gone, and McDuffie has flipped into one of Bowser’s staunchest supporters on the Council (including on public safety matters) after she backed his bid to unseat Elissa Silverman. A spokesperson for McDuffie didn’t respond to LL’s request for comment on Pinto’s bill, and Pinto’s office did not immediately provide details about which (if any) of her colleagues will co-introduce it or co-sponsor her legislation.
Even if this effort ultimately fails, Sulton admits feeling more than a bit exasperated at having to endure such a debate once again. She notes that the city poured a ton of time and resources into study after study of these issues, with the Council, the mayor, activists, and MPD involved each time. These reports persistently call for broader, more systemic changes to address gun violence. Yet, “each summer the Council goes back to reacting to headlines and pecking out legislation that’s poorly drafted and poorly conceived,” Sulton says.
“It’s not as if we don’t have the solutions sitting there, and it’s not as if they’re not recent and fresh,” Sulton says. “It’s hard to call this bill ACTIVE when it is quite obviously reactive.”