A California man who could have been looking at a 10-year prison sentence was instead set free this week by a federal judge because of fears that the suspect could catch the coronavirus while in federal custody. 48-year old Damion Davis was pulled over on a traffic violation, but officers found a handgun, rope, a mask, and drugs in Davis’s car. Prosecutors had cut Davis a break by only seeking a 30-month sentence, but that was far too long for Davis’ attorneys.

Davis’ defense attorney, though, argued that Davis would end up serving the bulk of a long prison sentence in Santa Rita Jail in Dublin, because the Bureau of Prisons stopped accepting new inmates, due to COVID-19. He said conditions at the jail are “much worse” than normal due to the pandemic.

“As a middle-aged man with respiratory problems, Mr. Davis is especially at risk,” federal public defender senior litigator Daniel Blank wrote. He added that Davis was “terrorized” with “neglect and abuse” as a child and that he’d become addicted methamphetamine, which was an underlying cause of his crime.

Amazingly, U.S. District Judge William Orrick sided with the defense team and released Davis from custody, with orders to stay home until he can enter a drug treatment program.

“It is particularly disturbing when the owner of these items also possesses a loaded gun, a recent conviction for violating a restraining order, and a past domestic battery conviction,” assistant U.S. Attorney Aseem Padukone wrote in a sentencing memo. “Only Mr. Davis knows what would have happened had the police not stopped his car and found his gun that night.”

Davis wasn’t caught in the commission of a violent crime, so it makes sense for prosecutors not to seek the full decade behind bars that he could have received. What makes no sense is for Davis to get off with probation, given his previous criminal history. This wasn’t a slap on the wrist by Orrick, but a kiss on the cheek.

Orrick was appointed to the bench by Barack Obama in 2013. After serving in private practice in San Francisco for several decades, Orrick joined the Eric Holder’s Justice Department in 2009, and was Assistant Attorney General in charge of the Office of Immigration Litigation until 2013.

Since become a judge, Orrick has developed a bit of a reputation as an activist judge. It was Orrick who blocked the release of undercover videos from the anti-abortion group Center for Medical Progress, and the judge also made headlines in 2017 when he blocked an executive order from Donald Trump that withheld federal funds from sanctuary cities. In 2019 Orrick’s judicial overreach was again in the news after he ordered the Trump administration to enforce Obama-era regulations dealing with methane emissions from oil and gas wells.

If Orrick thinks that justice is served by giving a free pass to a felon in possession of a firearm, I can’t help but wonder what he thinks the punishment should be for a Californian who brings a box of shotgun shells into the state that she purchased at a gun shop in Nevada. What about a Californian who owns a 20-round magazine, or even a legal gun owner in San Francisco who carries a firearm without having a concealed carry license? I’d like to believe that in the interests of justice, Orrick would say that none of these people deserve prison time either, but I until he’s assigned to preside over a challenge to one of the state’s myriad gun laws, we’ll never know for sure. Still, I’d say there’s probable cause to suspect the Obama appointee wouldn’t find any issues with any of the gun control measures on the books.