Exempting police from 18 U.S.C.

• Author: Kuschel, Noah A.
• Position: Section - C

TABLE OF CONTENTS INTRODUCTION I. SECTION 924(c) A. History of the Statute B. Proving the Elements of [section] 924(c) II. AGENTS RAMOS AND COMPEAN A. The Altercation, Trial, and Appeal B. Congressional and Public Reaction III. PROPOSED CHANGE A. The Michigan Statute B. The Proposed Amendment to [section] 924(c) 1. Law Enforcement Officer 2. Qualified To Carry the Firearm When the Crime Is Committed 3. Acting in the Performance of His Duties a. Crimes of Violence i. Conduct That Would Fall Under the Exemption ii. Conduct That May Fall Under the Exemption iii. Conduct That Would Fall Outside the Exemption b. Drug Trafficking Crimes i. Conduct That May Fall Under the Exemption ii. Conduct That Would Fall Outside the Exemption C. Recent Congressional Proposals IV. WHY POLICE SHOULD RECEIVE AN EXEMPTION A. Police/Criminal Distinction B. Police Must Use Force C. Alternate Liabilities for Police V. ARGUMENTS AGAINST ALTERING [section] 924(c) A. Statutory Protections Already in Place 1. Drug Trafficking Crimes 2. Crime of Violence B. Jurors Believe Police C. Prosecutorial Discretion 1. Crime of Violence: Wrongful Shooting 2. Drug Trafficking: Escorting Drugs 3. Acting Outside Official Duties: Personal Vendetta D. Police Believe They Are Above the Law VI. FEDERAL SENTENCING GUIDELINES CONCLUSION INTRODUCTION

On January 19, 2009, President George W. Bush commuted the prison sentences of two Border Patrol agents. (1) The agents were convicted of shooting and wounding a drug smuggler who had attempted to escape arrest and flee to Mexico. (2) The two agents, Ignacio Ramos and Jose Compean, were convicted not only of assault and related charges but also of violating what is commonly referred to as [section] 924(c), a federal statute that imposes a mandatory minimum sentence for involvement of a firearm in a crime of violence or drug trafficking crime. (3) Although the President believed the agents "deserved to be punished," he also believed the sentences, which exceeded ten years, were excessive. (4)

Agents Ramos and Compean's prosecution sparked outrage among members of Congress. (5) Their anger was not solely because the agents were prosecuted for shooting a drug smuggler while attempting to arrest him; such prosecutions are not unheard of. (6) What sparked much of the outrage in Ramos and Compean's case was the fact that, beyond charges for assault and denial of civil rights, the agents were additionally charged under [section] 924(c), which carried a mandatory ten-year sentence. (7)

Although this prosecution brought the issue of [section] 924(c) charges against police officers to the forefront, numerous officers have been charged under the statute. When [section] 924(c) was originally enacted, police officers were exempt from punishment under the statute when they carried a firearm during a felony, but could be punished if they used a firearm, for instance by firing it. (8) Later, [section] 924(c) was amended to remove any exemption for police officers.

This Note proposes that Congress exempt police officers from [section] 924(c) if two conditions are met. First, at the time the underlying crime of violence or drug trafficking crime occurs, the officer must be authorized to carry the firearm either by the local law enforcement agency or by federal statute. Second, the officer must be acting in the performance of his duties. The exemption would apply both to carrying and using a firearm.

Part I outlines the history of [section] 924(c) and the evidentiary requirements for conviction. Part II analyzes Ramos and Compean's prosecution, their appeal, and the congressional and public reaction. Part III outlines this Note's proposal--an altered version of [section] 924(c).

Part IV gives justifications for why police should receive an exemption. Part V answers criticisms of this Note's proposed exemption. Part VI briefly discusses possible corollary arguments applicable to the Federal Sentencing Guidelines.

1. SECTION 924(c)

   1. History of the Statute

      In 1968, Congress debated an amendment to a gun control bill that would punish those who committed crimes with firearms. (9) The amendment's original language imposed a ten-year mandatory minimum sentence on anyone who used or carried a firearm while committing certain enumerated crimes. (10) The amendment's purpose was to "persuade the criminal to leave his gun at home." (11)

      During floor debate, some representatives expressed concern that the amendment would apply to police officers who commit a felony while carrying their firearm. (12) One representative asked whether an officer could be subject to prosecution if "a policeman carrying a gun, as policemen do, were to slap somebody and it were found that he was not justified in doing so." (13) Another representative raised concerns about an officer who pushed someone improperly "in the course of a sudden dispute." (14)

      The amendment's sponsor agreed that these hypothetical situations were problematic. (15) Congress passed a modified version of the amendment, which exempted police officers and those with licensed firearms from punishment for carrying a firearm during a felony. The statute, known as [section] 924(c), imposed a sentence between one and ten years on anyone who used a firearm to commit a felony or who unlawfully carried a firearm while committing a felony. (16) Police officers were therefore exempt when they committed a felony while carrying a gun; no exemption was given for using a gun.

      In 1984, Congress deleted "unlawfully" from [section] 924(c) and changed the underlying offense from "any felony" to any "crime of violence." (17)

      In a footnote, the Senate Committee on the Judiciary's report explained the deletion of "unlawfully." (18) According to the report, a police officer who commits a crime with a firearm should be punished the same as a person not legally authorized to carry a firearm. (19) Because the amended [section] 924(c) included a requirement that the firearm be used or carried "during and in relation to any crime of violence," the report described the "unlawfully" language as unnecessary; the new language would shield a situation such as "a pugilistic barroom fight" when the gun is "carried in a pocket and never displayed or referred to," because "the weapon played no part in the crime." (20) In 1986, drug trafficking was added as an underlying crime. (21)

      In 1998, Congress passed the current version of [section] 924(c), which added the possession of a firearm as a basis for prosecution. (22) The current statute punishes anyone "who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm" or "in furtherance of any such crime, possesses a firearm." (23)

      There are three possible minimum sentences: five years (the default sentence), seven years (if the firearm is brandished), and ten years (if the firearm is discharged). (24) Second and subsequent convictions result in mandatory minimum sentences of twenty-five years. (25) The sentences are served consecutively; (26) that is, they are served after the sentences received for the underlying crime of violence or drug trafficking crime.

   2. Proving the Elements of [section] 924(c)

      To prove possession "in furtherance" of the underlying crime, more than the mere presence of the firearm must be established. (27) The government must show "that the firearm was possessed to advance or promote the criminal activity." (28) Factors considered to determine whether the possession furthered the underlying crime include "whether the weapon is stolen" and "the status of the possession (legitimate or illegal)." (29)

      To prove that the defendant carried the firearm "during and in relation to" the underlying crime, the government must "establish a nexus between the carriage of the firearm and the underlying offense." (30) The defendant must have "intended the weapon to be available for use" during the underlying crime. (31) Further, "the presence and availability of a weapon permits a jury to infer an intent to use the weapon should there be an 'evident need."' (32)

      To prove that the defendant used the firearm, the government must show "active employment" of the firearm. (33) This can be established by showing that the firearm was brandished or discharged. (34)

2. AGENTS RAMOS AND COMPEAN

   The current version of [section] 924(c) allows a prosecutor to bring charges against police officers for their firearms' involvement in drug crimes or violent encounters with civilians. The trial of Agents Ramos and Compean brought public attention to this issue. This Part outlines the altercation, the trial, the appeal, and the subsequent congressional and public reaction.

   1. The Altercation, Trial, and Appeal

      On February 17, 2005, Border Patrol Agent Jose Compean, on patrol near Fabens, Texas, received an alert that a sensor at the U.S.-Mexican border had been activated. (35) Another agent saw a van driving near the area of the sensor and began to pursue it. (36) Driving the van was Oswaldo Aldrete-Davila, who had illegally entered the United States from Mexico to smuggle 743 pounds of marijuana. (37) Aldrete-Davila sped away from the agents, starting a high speed chase. (38) Aldrete-Davila eventually crashed his van into a ditch near the border, jumped out, and ran toward Mexico. (39) Compean, shotgun in hand, was waiting on the other side of a levee that stood between Aldrete-Davila and his escape to Mexico. (40)

      What happened next was disputed at trial. Compean testified that he struggled with Aldrete-Davila, during which Aldrete-Davila threw dirt in Compean's face and ran toward Mexico. (41) Compean claimed that while Aldrete-Davila was running, Aldrete-Davila turned to look back at him and had something in his hand. (42) Compean opened fire at Aldrete-Davila with his service handgun, firing one magazine, switching it for a new one, and firing a few more shots--all of which missed. (43)

      On the other hand, Aldrete-Davila...