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How David Gregory can minimize criminal exposure over displaying a bullet magazine from a D.C. TV studio

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On December 23, Meet the Press host David Gregory held up a gun magazine in asking the NRA’s Wayne LaPierre about passing laws limiting magazine bullet capacity size. Were I Gregory’s lawyer, I would have advised against displaying the magazine without confirmation that the law allowed its display or that police and prosecutors would refrain from going after him for the display. It appears that possession of gun magazines is completely forbidden by statute in Washington, D.C. — where he displayed the magazine during the Meet the Press segment — and that the D.C. police told NBC’s inquirer(s) in advance of the program that he would not be allowed to make such a display.

As I commented on Jonathan Turley’s blog entry on the matter: The police will be wasting their time to seek a prosecution so long as those at NBC and LaPierre refuse to talk with the police and so long as the magazine is not recovered. Of course, nobody at NBC may advise anyone not to talk, lest the adviser get charged with obstruction of justice. Unless the police recover the magazine displayed by Gregory, who is to know whether this was but a replica magazine that cannot even hold bullets, thus falling outside the DC criminal law’s magazine definition?

The courts are not likely to provide a First Amendment journalists’ exception for possessing banned weapons and weapons implements, just as the Fourth Circuit in 2000 refused to give journalist Larry Matthews any journalists’ pass for child pornography distribution and possession as part of his reporting investigation into such activity. 

By now, nearly 10,000 votes are on a petition on the White House website to prosecute Gregory. I do not support calls for prosecuting people who may have violated the law but caused no harm in the process, as in Gregory’s case. Moreover, during my twenty-one years as a criminal defense lawyer I have never advocated prosecuting anyone.

I do not expect that Gregory will receive any comfort in the monumental Second Amendment-strengthening decision in D.C. v. Heller, 554 U.S. 570 (2008). Even though the Seventh Circuit this month held that the Second Amendment includes protection for carrying handguns on the street, that was for purposes of self-protection, whereas Gregory did not possess the magazine for self-protection.

Were I Gregory’s attorney, due to the reported police investigation into Gregory’s magazine display, I would have been inclined immediately to try to work out a deal with police or prosecutors for him to pay penance in the form of attending a gun violence education class and a few dozen hours of community service (at the most) — and possibly a promise not to violate the applicable weapons laws in the future — in an effort to get an agreement for no prosecution.