New Gun Court in Queens County Criminal Court
By Don Murray, Esq.
Partner, Shalley & Murray
Queens County Criminal Court began a new felony gun court starting in January, 2004. The creation of this court followed the implementation of a similar plan in Brooklyn.
The idea is that all felony gun cases will be tracked to one courtroom and they will be dealt with from start to finish in that one courtroom. The same judge will do all the hearings and trials for gun cases and the cases will be handled in an expedited manner.
The concept of a particular gun court is one that has drawn some criticism among criminal defense lawyers and others concerned with civil liberties.
The problem as some see it, is that gun cases frequently generate legal issues that quite literally define the boundary between a police state and what it means to live in a free society under our Constitution. This may sound abstract, but here is why:
By their nature, guns tend to be small and easily hidden. As a result, the police frequently find themselves searching closed spaces and compartments, pockets, cars, and other areas that we in America tend to think of as private personal areas not typically available for Government inspection. Now in many cases, the police are perfectly within their rights, whether for reasons of personal safety or based upon specific reliable information, to search the places they search.
The difficulties arise, however, when the police search locations or people when perhaps there is little or no legitimate justification other than the Government's persistent desire to see whether or not a crime is being committed.
It was decided long ago by people like James Madison that there really ought to be a line beyond which the Government ought not be allowed to go just because one or more Government agent might feel like seeing what he could find. Mr. Madison, and the others attempted to help fix this line by writing the Fourth Amendment to the United States Constitution. The Fourth Amendment, as written, was really about trying to define the line between a Government's legitimate need to investigate and punish crime and the citizen's right to privacy.
This concept of a citizen's right to privacy is a concept that represents one of the basic and most important principles of our country. Indeed it is a concept that quite literally helps to define what it means to be free in the United States.
Now, while the Founding Fathers included this important privacy concept in the Constitution, they weren't exactly clear on how to enforce it. In other words, the Constitution tells us that we all have the right to expect privacy against unreasonable Government intrusion into our lives, but it doesn't say what happens if, God forbid, a particular Government agent violates that expectation of privacy. Furthermore, it doesn't answer the even more difficult question of what to do if the Government violates that expectation of privacy BUT in violating a citizen's expectation of privacy reliable evidence of criminal activity is discovered.
To put it simply, what happens if the police kick down my door for no good reason, BUT when they come in to my house, they find an illegal gun? The Constitution doesn't specifically say what to do about it. It just tells us that it isn't supposed to happen.
Well, as more and more uncomfortable situations just like this occurred, the United States Supreme Court finally told us what was going to happen. In a landmark case, the United States Supreme Court said that the remedy for violating this most basic of Constitutional rights would be that any evidence obtained as a result of the violation would not be allowed to be used against the person whose rights were violated.
In short, if the police kick down my door for no good reason and thereby find an illegal gun in my house, the gun would not be admissible evidence against me. The Government would not be allowed to benefit from violating one of the most important founding principles of our Constitution, even if it means that it would not be able to prosecute me for illegal possession of a weapon.
The Supreme Court considered a number of different possible remedies including simply leaving it up to the police to discipline police officers who violate fundamental Constitutional principles. Among other reasons for rejecting this alternative, the Supreme Court was not entirely confident that the police would really police themselves. Furthermore, this is not some trivial administrative police regulation that we are talking about. It is a basic Constitutional principle that quite literally defines citizens' relationships to their Government. In a world where getting tough on crime is increasingly so popular, and in a world of ever increasing mandatory minimums for more and more crimes, it would seem that the punishment for Governmental action that undermines the very meaning of freedom in America ought to be extremely severe.
Now why all this talk of lofty Constitutional principles in an article about gun cases and the new gun court? Gun cases, by their very nature frequently involve these sorts of privacy issues. Guns are small and frequently found in secret locations. Police are often quite curious about what people might have in these personal and secret locations. Therefore, as you can probably imagine, the police will frequently invade these personal and secret locations hoping to find things like guns.
And with police invading all sorts of personal and secret locations in the quest for things like guns, you can imagine that there will be times when the legitimacy of the police intrusion might be called into question.
And if you agree that the line between "legitimate" Government investigation and unwarranted Government intrusion into the personal lives of citizens is a line that is important to keep tabs on, then you will find that gun cases then become an extremely important measure of where that line is.
Gun cases are serious enough and carry sufficient prison sentences to make it worth it for people to litigate. In other types of cases in which Fourth Amendment privacy issues occur, the stakes may not be high enough to make it worth the risk to litigate.
So this is part of the problem of putting all the gun cases in a given location into one particular Courtroom to be decided. Rather than spreading the judicial responsibility for "keeping the flame of freedom" among the full range of various Judges and judicial temperaments in Queens County, the responsibility will fall to one judge and one judge alone who will rule with absolute authority in Queens County.
We all hope and believe of course, that this new plan to place all the gun cases into one courtroom will result in a Court specially sensitive to the staggeringly significant fundamental issues frequently presented.
One of the most troubling aspects of the press coverage of this new gun court is the focus on increasing the punishment for gun cases in New York City with very little if any focus on the opportunity presented to deal thoughtfully and consistently with some of the tough issues of privacy and freedom that gun cases routinely generate.
The most important message of the press coverage was that gun cases were going to result in speedier resolutions, higher conviction rates, and longer prison sentences. There was little or nothing reported as said by Mayor Bloomberg or District Attorney Richard Brown about a renewed scrutiny of Government action that will be brought to bear in this new Court.
And there is the worry.
The messages of speedier resolutions, higher conviction rates, and longer prison sentences are the sorts of messages that might be appropriate as goals of a Prosecuting Government Agency, but why the "Independent" Courts are participating is an interesting and difficult question. For every quote from the District Attorney crowing about longer prison sentences and higher conviction rates, one would think there would be a quote from someone in the Court system speaking of the opportunity to carefully scrutinize the serious Constitutional issues that will inevitably be raised in a "gun court". And yet there is silence on this issue.
People unconnected with the criminal justice system also need to understand that these determinations with respect to Government action in gun cases can very quickly and easily be transformed into what amounts to a sham hearing in which almost anything the Government agents testify to is accepted without question.
Here is how:
A "typical" gun case is one in which an illegal gun is recovered from inside a car. Typically the police will not actually be investigating a report of an illegal gun, but will for some reason or another have cause to be interacting with people who happen to be in a car. At some point during the interaction, the police will take actions that will lead them to the discovery of a gun somewhere inside the car. The occupants of the car (all of them) are then all arrested and charged with possession of the same gun.
Frequently there is vast difference between how the police say they came to take the actions that led to the discovery of the gun and how the occupants of the car say the police came to take the actions that led to the discovery of the gun. And this is where the line between Government action and privacy is drawn.
The police frequently say things like:
- The gun was visible out on the seat when they approached the car
- They observed the butt of the gun sticking out from some otherwise hidden location inside the car.
- They observed some stray bullets rolling around on the floor of the car as they approached and a further search revealed a gun under the seat.
The occupants of cars frequently say things like:
- The police immediately ordered us out of the car, told us to shut up, made us lie down on the ground or lean face down on the back of the car, and they tore the car apart until they found (either nothing, a gun, or something else illegal).
Now in some cases, of course, it stands to reason that people will be foolish enough to leave guns on seats as uniformed police officers approach to give them tickets for speeding. In other cases, people will leave guns carelessly sticking out of hiding places. And in still other cases, people may forget to pick up those stray bullets they normally keep on their car floors.
Nevertheless, the frequency with which the police make these sorts of claims in combination with the frequency with which people claim that the police search first and tell you to shut up later would lead even the most cynical of people to believe that maybe the gun butt wasn't showing from under the driver's seat after all, and that maybe the police officer is saying that so that a judge won't tell him that he had no right to search the car.
Off the record, just about anyone involved in any way with the criminal justice system will usually admit that the testimony at these suppression hearings is often not, to put it one way, of the highest quality. One famous trial lawyer once suggested that on a scale of truthfulness or reliability, police testimony at suppression hearings would probably fall significantly below testimony of the Devil himself.
On the record, however, is always a different story. And this would explain the extreme rarity with which the Government is ever told that its agents acted improperly. People imagine that "liberal judges" suppress guns constantly, thereby allowing criminals to roam free out of court in leering mockery of justice. The truth of course is that our liberal judges almost never suppress evidence of case critical importance.
All of this is by way of explanation of the danger of funneling all of these decisions into one Courtroom for one judge. Rather than spreading the cases around among a variety of judicial temperaments and perspectives, the cases will all be decided by the perspective of whichever Judge happens to be the Gun Czar at any given moment.
Of course familiarity with the issues that arise and the development of a specialty could result in quite a positive atmosphere. A wise and just person with absolute power has the capability to do enormous good with astonishing efficiency. But there is also the opposite possibility.
Our system of government was designed to incorporate numerous checks and balances because our Founding Fathers were well aware that great intentions and the hope that people in positions of power will always rise to the occasion are simply not good enough. Power must therefore be spread around.
And here is the danger of this Gun Court. The problem is not with the gun cases themselves. The problem is that gun cases carry with them some of the most significant and delicate issues of freedom and privacy that are addressed in the criminal courts of our country. The danger is that rather than being treated with the delicacy that they deserve, these issues will be treated as run-of-the-mill, assembly line stumbling blocks to speedier resolutions, higher conviction rates, and longer prison sentences.
One legitimate question to be asked about this new gun court, for example is whether the focused caseload of gun cases will cause the court to carefully explore the Constitutional privacy issues raised at hearings. Common practice in Queens is to forgo the writing of formal legal arguments after these Constitutional hearings in favor of off the cuff oral arguments followed by oral decisions from the bench. Given the smaller focused caseload of a Gun Court, one would expect the Court to want to explore issues more formally and more thoroughly with written legal arguments after hearings. Certainly written legal arguments are the better practice and a more professional way to decide a matter of Constitutional importance. Perhaps a Gun Court then will offer lawyers the opportunity to more thoughtfully flesh out the issues in these important cases.
One would certainly expect that the extremely cynical approach of "hearing into trial" would not be implemented. Hearing into trial suggests that defense counsel conduct a Constitutional Hearing, and then immediately begin picking a jury for the trial. Of course this assumes that the Constitutional hearing will be LOST - a somewhat blatant and cynical concession about the reality of criminal court (Where are all those liberal judges?).
Of course the parties involved in the creation of this Gun Court have nothing but the highest motivations and best of intentions. It simply strikes me as a dreadful mistake, not necessarily for what everyone hopes it will be today, tomorrow or this year, but because of what it might well become.
I hope to be proven wrong.