Gun Crimes

Published on: June 26, 2017

Feds Announce Five Gun Crime Guilty Pleas

Federal law enforcement officers from agencies such as the FBI, DEA and ATF rarely patrol our streets, and they have far less contact with the public than state and local officers. As a result, common firearms crimes such as possession of a handgun are typically handled in state court, as local police officers are usually the ones making the arrests on these cases. A typical federal firearms case could involve the ATF busting an illegal gun trafficking ring or the DEA making a drug bust and seizing firearms in the process. Each of these examples usually involves a formal investigation possibly including confidential informants, wiretaps and search warrants where the feds continue to build a case as the crime is ongoing. In contrast a state firearms case typically starts as a traffic stop or a call to investigate a completed crime. This type of case rarely ends up in U.S. court, but federal prosecutors in Baltimore are trying to get the word out that no gun case is too trivial for their caseload.

The U.S. Attorney’s Office for the District of Maryland recently announced that five men have been found guilty of federal firearms crimes that originated in state court. Four were Baltimore City cases and one was an Anne Arundel County case. The men were originally facing charges in the respective state circuit courts, but these cases were all closed after the assistant state’s attorneys announced them as nolle prosequi and forwarded the files over to their federal counterparts. The charges the men are facing vary, as two are charged with illegal gun possession, two are charged in relation to drug trafficking and one in relation to an assault. But the one constant is that all five of the defendants were convicted of a felony prior to being arrested on the current charges. Federal prosecutors in Baltimore are taking affirmative measures to let state prosecutors know they will gladly take any case that involves possession of a firearm by a convicted felon. With resources that dwarf its state court neighbors, the Baltimore federal court has a much higher conviction rate for gun crimes, and the criminal code may provide higher penalties in some cases. Currently a defendant in U.S. court for illegal possession of a handgun faces up to 10 years in prison. A defendant who carries a firearm during the commission of a crime of violence or a drug trafficking crime faces an additional 5-year mandatory sentence. If the gun is brandished the mandatory sentence increases to 7 years, and if it is fired it increases yet again to 10 years. There are also mandatory penalties for crimes involving assault weapons and short-barreled shotguns and rifles.

There is a broad class of individuals that are prohibited from possessing a firearm under U.S. law; if you think only convicted felons are prohibited then think again. In reality any person convicted of a crime that carries a maximum penalty of more than a year, anyone who is an unlawful user of a controlled substance and anyone convicted of a misdemeanor crime of domestic violence could face federal firearms charges for possessing a gun. Each of the five men currently in custody and awaiting sentencing has learned the hard way that the feds are not messing around when it comes to gun possession in Baltimore. However it remains to be seen whether these efforts will serve as a deterrent to future offenders. The Blog will continue to follow these five cases as well as other state cases that are picked up by the feds. We may post a follow up article in the future so stay tuned. Benjamin Herbst is a state and federal gun lawyer that handles illegal possession by a convicted felon and transportation cases in all Maryland courts. Contact Benjamin for a free consultation about your case anytime at 410-207-2598.

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Published on: April 6, 2017

Fast Food Robber Sentenced To 10 Years

By Benjamin Herbst

A Prince George’s County man was recently sentenced to just over ten years in prison followed by three years of probation for robbing a fast food restaurant in Hyattsville. The sentencing occurred last week at the United States District Court of Maryland in Greenbelt after the man pled guilty back in December. According to facts stated in the plea agreement the defendant, who was once an employee at the restaurant, entered wearing a hooded sweatshirt and a mask of the popular Marvel Comics superhero Iron Man. Upon entering the restaurant the masked robber brandished a revolver type handgun at one of the store employees and demanded access to the safe. After realizing the employee did not have access to the safe the robber could have fled the scene, but instead hid behind a wall and waited for the manager to return. The defendant later used his gun to corral the manager and other employees into the manager’s office, where he stole cash from the safe and then from a register on his way out. Before leaving the restaurant the defendant also sprayed and lit lighter fluid on the wall and floor, and fired multiple rounds from his revolver that struck the building. Prince George’s County Police were alerted to the scene during the robbery and located the defendant as he was attempting to flee in his vehicle. Rather than surrender, the masked robber led cops on a high speed chase. The chase did not last long, as the defendant eventually stopped his vehicle and was taken into custody without any further violence. Police ultimately recovered and entered into evidence over $2,000 cash and a revolver with three live rounds and three spent cartridges.

The defendant was charged with numerous offenses, but ultimately pled guilty to robbery and using, brandishing and discharging a firearm. The plea agreement called for a sentence of between 121 months and 14 years prison under the federal guidelines, and the judge ended up going with the lower end. While this case certainly had some terrible facts, the defense probably provided mitigation to offer to the judge on sentencing. It does not appear that the defendant has a prior criminal record in Maryland, and there may have been some mental health issues involved with the case, as the defendant apparently decided to rob the restaurant because he was upset over being fired.

The robbery actually occurred on Christmas Eve of 2014, which is a relatively long period of time for a case of this magnitude. There are several reasons why a case that seems open and shut could last over two years. Cases where the defendant has or is suspected to have a mental health disorder often taken longer to settle due to the need for professional evaluations and treatment prior to plea or trial. Despite an arrest by county officers, this particular case did not appear to originate in state court before the feds took over. Some cases, especially cases involving robbery and firearm use, are filed in state court and then later dismissed and refiled in federal court. This process can cause delays, although a 2+ year gap between arrest and sentencing is still high.

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Published on: March 28, 2017

State Lawmakers Debating Gun Bills

By Benjamin Herbst

Marijuana grabbed many of the criminal law headlines over the last few state legislative sessions, but this year it has taken a back seat to other pressing issues such as prescription narcotics, heroin and firearms. We recently posted about proposed bills targeting heroin dealers and there has been heated debate about potential laws designed to limit the amount of prescription pain killers a patient may receive. While the fate of these bills remains to be seen, there are also multiple guns bills that have recently appeared on the House and Senate floors in Annapolis.

The first bill is an attempt to alter a strict state law prohibiting the possession of firearms on public college campuses. As it stands now any person arrested for possessing a handgun at a state university or public school faces a felony charge with a 3-year maximum jail sentence. Possession of a knife or other deadly weapon on school property is a misdemeanor, albeit with the same maximum punishment. The new bill would alter the statute by eliminating the possibility of a felony charge for a person caught possessing a handgun on a college campus. Rather, this offense would become a civil infraction only punishable by a fine of up to $1,000 come this October year if the bill passes. The changes would not apply to gun possession at a public elementary, middle or high school.

A civil citation for possession of a handgun on a public college campus would be handled in the same manner as a citation for offenses such as possession of alcohol by a minor, or using a fake ID. The defendant would be summoned to appear in court, and failure to appear could result in the issuance of a warrant. Failure to pay any fine imposed could result in the defendant being held in criminal contempt of court. Despite these possible sanctions, which can include jail time, this type of citation is not criminal and may not be considered a criminal conviction if the defendant is found guilty. On the other hand, if these citations are not expunged they will be accessible to the public and negative collateral consequences could follow. This is in contrast to the marijuana civil citation statute, which does not permit public access on casesearch and at the courthouse. Defendants would be entitled to have an attorney present at court hearings for these citations, and the prosecutor could elect to place the case on STET or enter a nolle prosequi pursuant to an agreement.

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Published on: March 15, 2017

Police Searching For Rockville Gun Shop Burglars

By Benjamin Herbst

Two suspects who burglarized a Rockville gun shop last week remain at large, and now law enforcement officers believe they may be linked to another recent burglary in nearby Virginia. Montgomery County police officers were alerted to the crime scene last week by the store’s alarm system at round 4 a.m., and they quickly responded to the Rockville shop to find the door pried open and glass cases smashed. Several firearms were taken from the glass cases as well as from racks behind the counter. In total the store reported more than 30 missing handguns and long rifles. The burglary gained national attention after the entire 90-second spree was captured on two high definition cameras, which were played for television and internet audiences. Both suspects were covered head to toe on black garb, and their faces were covered, thus making visual identification nearly impossible. A small clip of one of the suspects warning the other that it was time to leave the scene is audible and the burglars were allegedly spotted fleeing in a light colored four-door sedan, but there does not appear to be any other identifying information on the pair. There is no word yet whether crime scene investigators were able to recover any beneficial forensic evidence such has hair, skin or shoe samples.

Another gun store was burglarized this week in the same manner, and law enforcement officers are searching for clues as to whether these two smash and grabs are linked. The suspects in the Fairfax County crime were dressed differently, but appear to be similar in stature to the suspects in the Rockville burglary. Montgomery County Police are joined by federal agents from the ATF and Virginia officers in searching for leads to these two burglaries. If the suspects are apprehended they could be prosecuted under state law, federal law or both. Under Maryland state law the actions of the two suspects would be classified as a second degree burglary. There is a special provision under 6-203 of the Maryland code that deals specifically with breaking and entering with the intent to steal a firearm. The maximum punishment for a violation of this section is 20 years as opposed to 15 years for a standard burglary in the second degree. If prosecuted under state law each defendant could face over 30 counts (one for each gun) of second-degree firearm burglary as well as theft and destruction of property charges. With the announced involvement of the ATF though, it is likely that if the case is ever cracked the defendants will have to answer for their actions in the U.S. District Court in Greenbelt.

The ATF reported over 550 burglaries of licensed gun stores nationwide in 2016. This number rose from 377 in 2015, which represents a disturbing increase of over 50 percent. The illegal market for firearms will continue to thrive as states such as Maryland pass stricter limitations on gun possession and legal purchases, and as a result the ATF and local law enforcement could once again have their hands full in 2017.

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Published on: February 28, 2017

Federal Appeals Court Upholds Maryland Gun Ban

By Benjamin Herbst

Lawmakers stated in no uncertain terms their desire to make Maryland one of the toughest gun law states in the country when they passed the Firearm Safety Act back in the spring of 2013. The then democratic governor’s signature was a foregone conclusion and as of October of that same year the sale, purchase and transfer of semi-automatic handguns with a magazine capacity greater than 10 rounds became illegal, as did the possession of certain “assault” rifles and pistols. New security requirements were also established for state residents wishing to purchase firearms. While the magazine capacity limitation was frustrating for dealers, potential buyers and manufacturers such as Beretta, which was in essence forced to move dozens of M9 pistol manufacturing jobs out of Maryland, it was the assault rifle ban that caused the most backlash.

Politicians and anti-gun lobby groups hailed the assault rifle ban as a major victory in the fight against gun violence but it also left many outraged that it was neither constitutional nor beneficial. Firearms rights advocacy groups such as the NRA challenged the ban on numerous popular weapons such AR-15, which is a semiautomatic civilian version of the M-16 automatic assault rifle. The state prevailed in round one of litigation after a federal district court judge ruled that Maryland lawmakers did not overstep constitutional boundaries by banning weapons they believed were not built for self defense or recreational purposes, but rather to kill. Round two of litigation went to the NRA and other original plaintiffs. The United States Court of Appeals for the Fourth Circuit remanded the decision back to district court because the judge used an incorrect standard when conducting a balancing test between government intrusion and the state’s interest in protecting its citizens. But not long after this decision came down the state appealed, and the Fourth Circuit agreed to hear the case again. Only this time all judges at the Richmond, Virginia appellate court would be present and involved in the decision rather than a panel of just three judges like in the prior appeal.

In a somewhat lopsided decision, the Fourth Circuit recently ruled 10-4 that the Second Amendment does not protect so called assault rifles from being banned by Maryland law. The opinion labels weapons like the AR-15 as “weapons of war” that have already been excluded from constitutional protection by the Supreme Court in a prior case out of Washington D.C. The appeals court wrote that state lawmakers and not the courts bear the responsibility for the safety of their residents, and should not be prevented from regulating assault weapons. A strong dissenting opinion argued that states should have no say in what type of weapon citizens should be able to keep in their homes for protection as long as that weapon is one commonly possessed by American people for lawful purposes, and the AR-15 is undeniably possessed lawfully by thousands of Americans.

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Published on: January 5, 2017

Arrests Down, Shootings and Overdoses Up In Baltimore

By Benjamin Herbst

Baltimore Police made fewer arrests in 2016 than in 2015 and homicide numbers were slightly lower, but think twice before assuming the city was a safer place last year. The reality is that despite a 7 percent decrease in total arrests and 26 fewer murders, Baltimore was actually more dangerous in 2016 than any year in recent memory. Last year saw a staggering number of shootings in a city with a steadily declining population. All told the police department reported 936 shootings at year’s end, a number that came in just 60 shy of New York City’s number of shootings. The catch being that NYC has 14 times the population of Baltimore.

About 1 out of every three shootings ended up being deadly, which kept the homicide number above 300 for the second year in a row and placed Baltimore among the most deadly cities in America for gun violence in 2015. Another statistic to ponder is the 39 percent clearance (case closed by arrest) rate for Baltimore murders. The 39 percent clearance rate is one of the lowest in the country, but thankfully is up from 31 percent in 2015. 86 percent of people shot last year ended up dying from their injuries. This number appears to be higher than most other urban areas in the country due to the popularity of larger caliber firearms, and the frightening trend of Baltimore shooters using more bullets and firing their weapons from closer range. Over half of the deadly shootings in 2016 occurred on city streets and public places such as parks, which has devastating consequences for many innocent bystanders. Just over 10 percent of homicide victims were killed in their cars and a similar number were in their homes. Most victims were males between the ages of 18 and 24.

In addition to shootings skyrocketing, drug overdoses are approaching historic levels. This is a trend throughout most of Maryland, but Baltimore is the epicenter. Full year-end statistics for 2016 drug overdoses are not available yet, but as of October 1 there were 481 overdoses compared to 291 for the first 9 months of 2015. Heroin is responsible for a large percentage of these deadly overdoses, though the infusion of fentanyl on the streets may be playing an increased role as well. It is estimated that over 20,000 people in Baltimore use heroin, which is over 3 percent of the population. Other areas within Maryland that saw large increases in drug overdoses include Anne Arundel County, Baltimore County, Harford County and Howard County. As we mentioned in a previous post, health and law enforcement officials in less populated areas such as Bel Air face the same concerns as those in the city. More heroin users and an influx of powerful new drugs such as fentanyl will continue to rock the smaller communities and urban areas alike. The Blog will continue to follow the crime and drug overdose statistics from 2016 as new data is made public, and we may post a follow up article in the near future so stay tuned.

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Published on: December 22, 2016

Feds Not Overlooking Gun Possession Cases

By Benjamin Herbst

Maryland has some of the toughest gun laws in the country, and concealed carry licenses nearly impossible to obtain. A law abiding citizen basically has to prove that he or she has a legitimate need to carry a gun to even be considered for a carry license, and a large percentage of applications are denied. Many people, especially out of state residents, carry or transport firearms within the state illegally without even knowing it, and others know full well they are breaking the law but do it anyway. Either way, the strict laws on who can carry or transport a firearm and how they must legally do it make simple gun possession an extremely common offense in our state. But the strict laws don’t always mean harsh sentences for defendants. While some jurisdictions place a particularly high level of scrutiny on gun cases, most treat these cases like any other. And there are plenty of pro gun judges that decline handing down sentences that fall in line with the state legislature’s overzealous intent. However, under the current administration the federal government has continued to place an emphasis on vigorously prosecuting gun cases, especially cases involving illegal possession by a convicted felon.

Most people would associate federal criminal prosecutions with charges such as drug trafficking, fraud, money laundering, racketeering, and perhaps white-collar offenses, complex theft schemes, and crimes committed in multiple states. But the U.S. Attorney’s Office in Baltimore City has shown a willingness to get down and dirty in prosecuting simple firearms cases that involve one defendant and one gun. The feds are not too busy to make sure convicted felons possessing guns in Baltimore see the inside of a jail cell, and they know the only way to accomplish this may be to to make sure it’s a federal jail.

Federal prosecutors in Baltimore have been inclined to take cases from city prosecutors, often sending letters offering their services. And when they take a case out of state court it usually means bad news for the defendant. State law provides a fifteen-year maximum penalty for a felon or other disqualified person in possession of a firearm, and if the disqualifying offense was within 5 years then a minimum mandatory prison sentence may apply. Defendants in state court rarely receive anywhere near the maximum jail sentence, and rightly so. In most of these cases the defendant is only disqualified from possessing a firearm due to street level drug offenses that have no business being classified as felonies. But in federal court a defendant in an unlawful gun possession case is far more likely to serve serious prison time, and two recent cases support that contention. The U.S. Attorney’s Office recently announced that a 28-year old Baltimore man was sentenced to 15 years in prison for possessing a loaded .45 caliber handgun. The man never brandished the handgun or used it in the commission of another offense, but rather threw it in an alley as he allegedly ran from city police officers. And just one day before that case another man pled guilty to possession of a stolen gun in the same federal court downtown. This man was also prohibited from possessing a firearm due to previous felony convictions, and is due to be sentenced in the coming months. He too could face a lengthy prison sentence, although it won’t be the 15 years his younger counterpart received. The Blog will continue to follow the federal government’s prosecution of gun possession cases, as we may see a shift when the new administration takes over in January.

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Published on: October 2, 2016

Maryland Cities Look To Ban Toy Guns

By Benjamin Herbst

Maryland has some of the toughest firearm laws in the country, with harsh penalties for illegal possession and all out bans on many popular gun models. But the focus is not confined to working and operable firearms any longer, as legislation to ban toy and replica guns in now in the works in at least two jurisdictions within the state. The proposed bans did not come out of the blue, but rather were prompted by an incident in Baltimore City where a 13-year old boy brandishing a replica pistol was shot by a police officer that feared the replica was the real thing. Luckily the boy survived, but the two bullet wounds he sustained could have easily ended his life prematurely. While this potential disaster generated a good deal of press, there are likely hundreds of incidents each year where cops are placed in the dangerous position of encountering citizens with replica guns. Rather than hope their officers make the right split decision, Baltimore City and Salisbury want to take measures to assure their officers are no longer placed in this perilous position in the first place.

The Baltimore City Counsel recently introduced a bill that would ban ownership and possession of replica guns within city limits. The bill is specifically focused on replicas with largely similar characteristics of their real counterparts, which does not include toys such as water pistols and Nerf type guns. Rather it will focus on BB and pellet guns, as well as replicas that are the same size, shape and color as common handguns and rifles. The proposed law is not designed to throw kids in jail for carrying around plastic pistols, as city officials have suggested minor penalties for first and even second time offenders. Violators would face a civil citation and seizure of the replica weapon for a first or second offense, while criminal penalties could come into play upon a third offense. As it stands now a third time offender faces arrest, and then a maximum penalty of 30 days in jail and a $1,000 fine. Since this would be a city code violation the city attorney could be the office that ends up handling the prosecutions of these cases, though it is a little premature to speculate on this.

Officials in the city of Salisbury have also stated their desire to institute a ban on replica guns, which would likely be similar to the law in Baltimore. Salisbury legislators plan to hammer out the details of the proposed bill in the coming weeks. The Blog will update the progress of these potential city laws, and will post a follow up article if necessary. We will also monitor the 2017 Maryland legislative session to see if state lawmakers put replicas on their agenda.

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Published on: May 19, 2016

Police Announce Large Howard County Marijuana Bust

By Benjamin Herbst

Howard County may not be known for high volume drug trafficking, but a recent marijuana bust near Columbia captured state headlines last week for its shear size. Police are reporting that the 600 pot plants found in a four bedroom Glenelg home set the record for the county’s largest illegal marijuana grow operation, and two suspects were arrested and charged with multiple felonies. The male and female defendants were apparently renting the home, which was auctioned off last month. Upon visiting the recently acquired property, the new owner saw a suspicious van in the driveway and called police. Cops then allegedly smelled a strong odor of marijuana and observed other suspicious signs at the property, and they applied for a search warrant. In addition to the plants, the search revealed a sophisticated growing operation with ventilation, hydroponics and lighting systems. Police also found 8 pounds of packaged marijuana, THC wax, $75,000 cash, heroin, prescription pills, cocaine and a firearm. The estimated street value of the seized plants was over $270,000.

The female defendant was found in the home at the time of the search, and was arrested that day. She was charged with two felonies including manufacturing CDS and possession with the intent to deliver. Each of these charges carries a five-year maximum jail sentence because the drug at issue was marijuana, and not a narcotic such as heroin. The female defendant is also charged with two counts of possession, most likely for the heroin, pills or cocaine that was found. These charges are misdemeanors that carry a four-year maximum sentence. Currently the female’s case is set for a preliminary hearing on June 3^rd in the Ellicott City District Court, but the case will likely be indicted and sent straight to the Circuit Court for Howard County.

Police did not arrest the male defendant at the grow house, but found and arrested him shortly thereafter. He was charged with the same two felony counts plus an additional felony count for possession of a firearm in a drug trafficking crime. This charge carries a mandatory minimum prison sentence of five years and a maximum sentence of 20 years, and in this case was likely filed due to police finding a shotgun at the house that they traced back to male defendant. Section 5.621 of the Maryland criminal code applies to anyone who possesses a firearm during the commission of a drug felony. It serves as an enhancement, and is part of the state’s concerted effort to jail defendants that commit crimes with guns. Unfortunately police officers and even prosecutors often wrongfully incorporate this particular statute. The appellate courts have repeatedly said that the firearm at issue must have some sort of nexus or connection to the drug felony. In other words the government must prove that the gun served a purpose in furthering the crimes, which in this case were manufacturing and possession with intent. If the defendant was not dealing marijuana out of the rental house, and the gun was simply there with his other possessions then there would be no nexus to the drug crimes. On the other hand, if the defendant kept the gun as protection during his illicit transactions then there would be a nexus.

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Published on: May 1, 2016

Baltimore And D.C. Causing Increased National Murder Rate

By Benjamin Herbst

During the early and mid nineties violent crime within the city limits of Baltimore and Washington reached unprecedented critical levels. In 1990 there were 474 murders in D.C., which led to the capital city taking on the notorious title of our nation’s murder capital as well. One year later a record 479 homicides were documented. Thirty miles north Baltimore was experiencing the same type of violent crime spike, with a record 353 murders taking place in 1993. Those who have studied crime in the early 90’s have often attributed the murder spike to the proliferation of crack cocaine as a big business street drug. With the lucrative business came turf wars between well-funded and well-armed gangs, who would kill for much less than preserving their profitable racket.

As law enforcement became more sophisticated and local governments began focusing on cracking down on the crack epidemic, these two troubled cities witnessed a dramatic decrease in their murder rates. By 2011 there were 196 murders in Baltimore, and in 2012 there were 92 total murders in Washington, which was the lowest total since the early 1960’s. These numbers, although nothing to be proud of, have remained fairly consistent over the past decade until last year, when troubling data came from both cities. Baltimore reported a staggering 344 homicides in 2015, which factoring in the city’s population decrease actually translated into a higher per capita murder rate than the record year of 1993. This was a 63 percent increase from 2014, and Washington wasn’t much better after reporting a 51 percent jump in homicides from 2014 to 2015. These increases were so significant that they almost single handedly caused the national murder rate to spike 13.3 percent last year. Chicago is also partially responsible, but their rate increased by a much lower 13 percent.

It is almost impossible to pinpoint an exact cause for the rise in murders and other violent crimes. In Baltimore though at least some of the spike can be attributed to the unsettled atmosphere following the spring riots, which also led to some western district police precincts decreasing their normal crime fighting tactics and deliberately becoming less of a presence. The spike in Washington is more of an enigma, though the some of the same factors could have contributed to the violence in D.C. Urban police officers in the entire country were undoubtedly hesitant to be proactive while on duty last spring and summer, as the whole world was watching with a microscope.

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