Some Comments on the Arrest Warrant for the DC Sniper suspects

Federal authorities arrested the alleged DC sniper, John Allen Muhammad, on federal weapons charges. Similarly, his alleged accomplice, John Lee Malvo, wasn’t charged with any crimes, but picked up on a “material witness” warrant.

Why don’t the police just come out and say they suspect these guys of several murders? Because even serial killers have constitutional rights.

The “material witness” statute is essentially an extension of Grand Jury powers to subpoena witnesses to appear and testify. Witnesses can be arrested if there is some chance that they might be uncooperative or flee. See 18 USC § 3144.

For example, law enforcement initially sought to arrest Terry Nichols, now serving a life sentence for his involvement in the Oklahoma City bombings, on a “material witness” warrant. It proved unnecessary because he turned himself in. Nichol’s lawyers then tried to have the warrant quashed. By that time, however, he had been charged with participating in the bombing. A court subsequently ruled that, even if his initial detention was improper, it could not affect his subsequent detention on a proper warrant based on the criminal charges against Nichols.

A real difficulty might arise in the DC sniper case, however, not with prosecuting Muhammad or Malvo, but rather with evidence seized on the arrest warrant. This evidence would include the vehicle itself, with the alleged sniper modifications, as well as the Bushmaster rifle found in the trunk. Evidence obtained as a result of an unlawful search can be excluded at trial under the “fruit of the poisoned tree” doctrine: if some of the affidavits used to convince the magistrate judge in the State of Washington to issue this warrant proved to be false and unreliable, a good defense lawyer could annihilate the whole case.

Rather than risk screwing up the prosecution with a bad warrant based on speculation which might prove incorrect, law enforcement authorities got a warrant based on relatively solid evidence that Muhammad had violated federal firearms law.

In the course of tracking down Muhammad, they learned (1) that he liked to play with guns, and had even tried to manufacture an illegal silencer, and (2) that there was a domestic violence order entered against him.

Federal law, codified at 18 U.S.C. § 922 (g), prohibits a list of certain persons from shipping, possessing or receiving firearms or ammunition. Specifically, the following people cannot have guns in the U.S.A. (with cites to the statute paragraph following):

Incidently, to all those Europeans prone to comment that we let “just anyone” have a gun in the U.S.A., please note that under paragraph (g)(5), we don’t let you have a gun if you come to visit.

At first, upon mere cursory reading of the statute, I was taken aback by the charges under Paragraph g (8) against John Allen Muhammad. A restraining order seems a flimsy basis for depriving anyone of constitutionally-protected liberty, including, perhaps, the freedom to own a gun. Restraining orders issue automatically in all divorces in New Mexico, and domestic violence is frequently alleged in divorces (on perjured testimony) to get a soon-to-be-ex husband kicked out of the house pending a divorce. These kinds of restraining orders are obtained ex parte (with the judge only hearing “from one side”) and without a hearing, that is, without the affected party getting a chance to argue or rebut. Thus, it appeared that people were being deprived of the God-granted, inalienable right to possess murder weapons, in violation of the Second Amendment (which is pretty much dead, in the law) AND in violation of the due process clause of the Fifth Amendment, which is very much alive and enforceable.

Reading Section 922(g)(8) more closely, however, I realized that Congress denied guns only to people who have had a domestic violence order entered after a hearing and upon a judicial finding of a “credible threat” to the physical safety of a partner or child. In other words, this statute probably passes muster under the due process clause. The text of the paragraph is as follows

[ The following are prohibited from shipping, possessing or receiving firearms or ammunition in interstate commerce: any person ... ]

(8) who is subject to a court order that -

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;

The arrest warrant for John Allen Muhammad:

The writeup was provided as a Public Service by the Everything2 Bar Association as entertainment and education regarding current events, and not as legal advice. If you think any of the above applies to you, you better get a damn good lawyer.