The Trump administration isn't just lending a hand to existing legal challenges on "assault weapon" bans. In the District of Columbia, the DOJ's Civil Rights Division has launched a lawsuit of its own, alleging that the D.C. ban violates the 1994 Violent Crime Control and Law Enforcement Act, which includes a section prohibiting law enforcement from engaging in any unconstitutional pattern or practice of conduct.
The DOJ contends that, since AR-15s and other firearms banned under D.C.'s "assault weapons" ban, D.C.'s Metropolitan Police Department is engaging in an unconstitutional practice by refusing "law-abiding citizens the ability to register awide variety of commonly used semi-automatic firearms."
Acting pursuant to the authority granted them by the D.C. Code governing Washington, D.C., Chief Smith and the MPD enforce the provisions of the District of Columbia Code. These provisions include the power to approve or deny certificates of registration for firearms. Their decisions to deny certificates of registration for commonly possessed semiautomatic firearms run afoul of binding Supreme Court precedent and therefore trample the Second Amendment rights of law-abiding citizens. This case concerns much more than dormant, bad law. It concerns the very real requirement that the DC Defendants have acted and are continuing to act in blatant disregard to our Constitution and the rulings of our Nation’s highest court.
The lawsuit isn't challenging D.C.'s gun registration scheme. Instead, it's narrowly focused on the commonly-owned guns that D.C. refuses to register, thereby placing them off-limits to D.C. residents who want to remain in compliance with the law.
Admittedly, claiming a violation of the Violent Crime Control and Law Enforcement Act is an interesting approach to take, and the anti-gunners are up in arms over DOJ's tactic.
D.C. recently filed a motion to dismiss the lawsuit. On Friday, Brady United and Giffords Law Center filed an amicus brief in support of that request, along with more than a dozen former Justice Department civil rights division officials. Among those signing on are former associate attorney general Vanita Gupta and former assistant attorney general Kristen Clarke, who served in the Biden administration. Gupta also served in the Obama administration.
In the new brief, former attorneys who have enforced the pattern-or-practice statute say the Justice Department is misinterpreting the three-decade-old measure, which they believe could undermine public safety. They say the statute, passed in the wake of the 1991 police beating of Rodney King in Los Angeles, was meant to address police misconduct such as excessive force and discriminatory practices, as well as restore trust among communities harmed by systemic law enforcement failures.
Umm, this is a discriminatory practice, and if these folks don't think the District's gun ban is hurting trust among communities harmed by systemic law enforcement failures (including the enforcement of possessory gun control laws), they're deluding themselves. Now, the argument that MPD is merely following a law established by the D.C. Council might have some merit, but the District of Columbia government itself is also a named plaintiff in the case, so those responsible for keeping the law in place are also being held to account alongside those charged with enforcing the statute.
Brady United chief legal officer Douglas Letter said the Trump administration is using the provision to challenge D.C. police for “merely enforcing a law passed by the representatives of the people,” and not a case of discriminatory or unconstitutional conduct.
“This lawsuit by the Trump Justice Department is just an extremely bizarre use of this statute,” Letter said in an interview. “Which was designed not to be used to attack statutes and laws, but instead to get at patterns and practices of misconduct by police officers and police departments.”
That echoes what the District of Columbia said in its response to the DOJ complaint; that the statute cannot be used to challenge "substantive criminal prohibitions," only the conduct of law enforcement officers.
DOJ Civil Rights Division head Harmeet Dhillon is far more versed in federal law than I am, but I do wonder if the DOJ isn't putting the cart before the horse here. Like it or not, D.C.'s statute banning these commonly-owned arms has not yet been successfully challenged, so it's a little odd to argue that the MPD is engaged in a pattern or practice of violating the Second Amendment rights of D.C. residents for upholding a statute that has yet to be struck down.
It may be that this was the only way to approach the ban since previous challenges on 2A grounds have failed. And there's nothing stopping a judge from concluding that these arms are protected by the Second Amendment and therefore the statute and its enforcement are violating the Second Amendment rights of D.C. residents. I just don't know how likely it is, though. To the best of my knowledge, the DOJ's position here is the first time the Civil Rights Division has sued police over the enforcement of a statute that has not been struck down, so we're swimming in uncharted waters here.
