Judge says Baltimore gun registry unconstitutional

Decision chides "vague, overly broad" regulations

April 08, 2011|By Justin Fenton, The Baltimore Sun

Baltimore's gun offender registry is unconstitutional, a Circuit Court judge ruled Friday, calling into question one of the city's signature programs against gun violence.

Judge Alfred Nance said the Police Department had "failed or refused to comply" with establishing clear regulations for the registry, which required people convicted of gun crimes to provide addresses and other information with the city every six months for a period of three years.

The city judge also called the program, created in 2007, "unconstitutionally vague and overly broad." Among the data registrants must provide, according to a list, is "any other information required by the rules and regulations adopted by the Police Commissioner," language that Nance said appeared to give police "limitless discretion." The city said it was considering whether to appeal.

Though Nance's opinion is not binding on other judges, they might follow his lead, said University of Maryland law professor Douglas Colbert.

"It will have an effect over anyone appearing before Judge Nance, and it could have an influential effect on his colleagues," said Colbert. "It's a ruling the state would likely not want to remain unchallenged."

Sheryl Goldstein, director of the mayor's Office on Criminal Justice, said city officials are pleased that the opinion reaffirmed that the program did not conflict with state laws, a complaint that had been raised when the program was being created.

"This is one judge's opinion, and one of the first on the issue," she said. "We're considering all of our legal options, and in the meantime, we're going to keep the gun offender registry up and running."

The Office of the Public Defender brought the challenge in the case of Adrian Phillips, who was convicted of armed robbery and handgun offenses in 2008. He was charged in February with failing to register as a gun offender as a result of that sentence.

Joshua Insley, a defense attorney who argued a motion to dismiss the charges, said his office had been looking for an opportunity to challenge a law they see as flawed, and Phillips' case was a prime opportunity.

The city and Police Department "want the laws to be enforced, except for where their obligations come in, and then they're too busy," Insley said.

The law was modeled after a registry in New York City, and fueled by statistics showing that half of those charged with homicides in Baltimore had previous gun convictions.

City officials say the program helps police keep close tabs on repeat offenders and other "bad guys with guns," as Police Commissioner Frederick H. Bealefeld III often calls them.

Through a spokesman, Bealefeld declined to comment on the judge's opinion.

"The purpose of crafting the gun offender registry was to create a method of oversight and knowledge of gun offenders, with the idea of deterring future gun crime," Goldstein said. "Folks who are registered have a low rate of recidivism, period, and very low with respect to gun crime."

The law requires those convicted of shootings or other violations of gun laws to provide personal information to the police for a citywide database. Offenders must provide names, aliases, addresses and information about their convictions twice a year. Police also visit homes to verify addresses and connect offenders with social services.

Nance said the city could legally create a gun offender registry, but the Police Department had failed to give "reasonable guidance and fair notice to the public" on the specifics of the law. "The rules and regulations are not simply unclear, they are unknown and unreviewable outside of the walls of the Police Department," he wrote.

Prosecutors argued that there is ample discussion of the expectations — at sentencing hearings, through a printed acknowledgment form, and inquiries at the time of registration, according to court papers

Nance disagreed, saying that placed the burden on defendants to "go to the bowels of the Police Department to learn what constitutes the law and then instantly comply with its requirements or be found in violation of the law." Insley said the public defender's office was concerned that police could use the registration process to quiz defendants about recent crimes or demand cooperation in other investigations.

"They could ask you 'There was a shooting on this block, what do you know about it?' basically under threat of locking you up for failure to comply with the gun offender registry," he said, although he was unaware of such instances.

Nance said police failed to file documents with the city's Department of Legislative Reference that could alleviate some of his concerns. Goldstein said officials would promptly file those documents.

justin.fenton@baltsun.com

http://twitter.com/justin_fenton



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