There has been a great deal of misinformation put out about the case of Phillip F. Thompson, aide to Senator Jim Webb. Most of this misinformation has its origin in malicious attempts to game the situation to embarrass Senator Webb. The individuals who are perpetrating these smears ignore the fact that there is a real person involved, an honorable man whose career, family and entire future is at stake.
For the sake of my own curiousity I have decided to try and find out what happened and what laws apply to the situation. I want to understand this situation, rather than spin it.
I start with certain advantages: I am an attorney and I do know the basics of criminal law and criminal procedure. However, my license is in California, not the District of Columbia, and my specialty is corporate taxation, not criminal law or criminal procedure. As such, I will be asking more questions than I answer and I hope that qualified attorneys who are members of the DC bar will chime in with answers. I will not be offering any legal opinions, because clearly this case lies beyond the jurisdiction where I am licensed and the area of the law in which I am competent.
Here are some of the facts as I have been able to glean them from various sources.
Senator Jim Webb, a veteran and a vocal 2nd amendment advocate has a Virginia concealed carry permit and frequently carries a semi-automatic pistol. It is unclear what kind of pistol it is or what caliber. I have heard it described as a 9mm, but Webb carried a .45 caliber when he was Marine, was qualified with it, and apparently was an instructor. A .45 caliber featured prominently in an incident in Vietnam for which Webb was later awarded the Silver Star.
From what I have been able to learn, this is what I think happened: on or about Friday March 23, 2007, Webb was at Reagan National Airport in Virginia preparing to fly to Louisiana with his wife to visit his wife's family. Realizing that he could not fly with his pistol, Webb placed the pistol in a briefcase and placed the briefcase in the trunk of his car. Phillip F. Thompson, Webb's executive assistant, or "body guy" as they are sometimes called, drove Webb's car back home.
On Monday, March 26, 2007, Thompson drove the car with the briefcase in the trunk to the Capitol. Not realizing what was in the briefcase, but unwilling to leave it in the car, Thompson made the fateful decision to carry the briefcase to the Senator's office for him. While undergoing a routine screening at the entrance to the Capitol or a Senate office building, the briefcase was passed through a metal detector and the pistol was detected.
Thompson was confronted by Capitol police at that point and asked for a license. Thompson identified the pistol as belonging to Senator Webb and admitted he did not have a license to carry a pistol in the District of Columbia. At that point, Capitol police arrested Thompson. It's worth pausing here to note that the Capitol police did exactly the right thing in arresting Thompson. Safety is paramount, and it has only been a few years since two Capitol police officers lost their lives in the line of duty due to gun violence. The U.S. Capitol Police are to be commended both for their service in general and their professionalism during this particular incident.
Thompson spent the night in jail and was subsequently arraigned and charged with four felony counts, though no media outlet that I have been able to reach has identified exactly what the charges were or what statutes were allegedly violated.
Having done a little digging, I suspect that at least one of the charges against Mr. Thompson is based on DC ST § 22-4504, which states in relevant part:
No person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon capable of being so concealed.
Thompson was charged with four felony counts, I suspect at least one was based on this statute. I am trying to find out what, if any, other statutes he may have been charged under.
Now, as to the legal issues underpinning this case. I have more questions than answers. Having looked at DC ST § 22-4504 and some other related statutes I am unclear on several very important issues. It is on these issues that I hope a DC-licensed attorney will be able to chime in and offer some guidance on. I'll state the most critical of my questions, then I'll try to explain why it seems important to me.
My question is: are the District of Columbia's gun statutes--DC ST § 22-4504 in particular--intended to define "strict liability" offenses? Some explanation is required for those of you who haven't attended at least the first year of law school.
In criminal law, a "strict liability" crime is crime in which the prosecutor does not have to prove that the defendant had the requisite "mens rea" (translated from the Latin as "guilty mind") or intent. In other words, the prosecutor does not have to show that you knew or understood that what you were doing was wrong: if you violated the statute you are guilty.
Most strict liability crimes are misdemeanors: parking tickets and the like. A handful of strict liability crimes are felonies. The "classic" law school example is statutory rape: it doesn't matter if you believed in good faith that your partner was of age, if you sleep with an underage partner you are guilty of statutory rape. But I digress.
The question for me at this point is: can the District of Columbia hold Mr. Thompson liable for being in possession of Senator Webb's pistol if he didn't know he was in possession of Senator Webb's pistol?
If the District of Columbia's laws on this subject are strict liability, then Mr. Thompson is in trouble because beyond any doubt he was in control of the briefcase that contained Senator Webb's pistol. On the other hand, if mens rea is required--either expressly or implicitly, due to case law or otherwise--then Mr. Thompson need only show that he was unaware of the pistol in the briefcase in order to be found not guilty of the charges. The very fact that Mr. Thompson placed the briefcase in the metal detector suggests one of two things: that he was unaware of the presence of the pistol or that he is the world's least skillful arms smuggler.
As I learn more about the facts of Mr. Thompson's case and the laws that apply, I will be updating and republishing this post.
One charge I would like to deal with tonight is the basically empty charge that some have made that Webb should have "done something" to "get his aide off the hook." The Republicans bloggers who made such accusations have unconsciously indicted themselves and the entire Republican Party. The idea that an elected official should "pull strings" or otherwise seek to affect the outcome of an ongoing criminal investigation or prosecution is simply wrong. I am certain that Senator Webb is offering all the support that lies within his power to give: assistance with the legal costs associated with Mr. Thompson's legal defense, moral support, legal advice (Webb is an attorney with criminal defense experience) and any other support that is within his power to provide legally. The Republican accusations in this case do more to shine light on the underlying causes of the unfolding U.S. Attorney scandal than explain Webb's reaction to Thompson's plight.
None of the above is meant to exculpate Senator Webb from what I think was irresponsible behavior regarding the carrying and storage of his pistol and its ammunition. As much as I like and admire Senator Webb, I cannot help but conclude that his actions fell short of responsible gun ownership and handling, a fact that is all the more disappointing considering his level of experience with firearms.