How Justice Department prosecutors help fight gun violence
When a 911 caller reports a shooting in New York City, only one law enforcement agency — the New York Police Department — typically responds. But any resulting prosecution could go through one of two different legal systems. Typically, shootings are handled in state court, but a small number of cases are prosecuted in federal court. Important consequences can follow: the type of evidence gathered and allowed at trial, whether the suspect is bailed or jailed before trial, whether a conviction results and the length of any sentence.
So how does law enforcement make a federal case out of a shooting in New York City, and what are the pros and cons of doing so?
Requirements for a federal charge
Federal court is not an option for every shooting. There is no law that makes the act of shooting a gun at another person alone a federal crime. In the limited number of cases where federal prosecutors are able to prove a shooting was connected to a federal drug, robbery or gang crime, prosecutors can charge an offense that carries a mandatory minimum of 10 years imprisonment and a maximum of life — often a substantially heavier punishment than for applicable New York State criminal offenses.
In addition, federal prosecutors are able to charge some shootings even without federal-motive evidence through creative application of a law that prohibits certain people from possessing guns or ammunition, regardless of the motive. Since the 1990s, the U.S. Department of Justice’s “Project Triggerlock” has encouraged federal prosecutors to use that law to charge people who illegally possess guns. In those cases, recovering a gun originally manufactured in another state from a prohibited person provides the federal legal hook.
But shooting investigations do not usually involve a suspect being caught with a gun. Shooters often leave the scene immediately. So, increasingly in recent years, in offices like the U.S. Attorney’s Office for the Southern District of New York (which includes Manhattan and the Bronx), prosecutors have used an innovative approach to charge shootings. Known as “ammolock” cases, prosecutors use the shell casing ejected from a gun when it fires to prove that the shooter had ammunition that was manufactured in another state. The suspect is then charged not with the act of shooting but with illegally possessing the ammunition.
Bringing a federal case can mean additional evidence available to the prosecution, stricter bail rules, a greater likelihood of conviction and a substantial sentence.
A recovered shell casing (or a gun) is one prerequisite for federal shooting cases. Others are that the suspect must be 18 or older and must be a person prohibited under federal law from carrying a firearm — typically, a felon. In the cases where a federal charge can be brought, there are substantial advantages for law enforcement, including favorable evidence and bail laws.
Investigating a federal shooting case
There are three key elements that investigators look for in building a federal ammolock case: 1) evidence that the suspect was a prohibited person and knew it at the time of the shooting; 2) a recovered shell casing or gun that was manufactured outside of New York State and 3) evidence of who shot the gun. The first and second items are often easily obtained. Proving the identity of the shooter can be more difficult.
Identity evidence in shooting cases can include witnesses, surveillance video and electronic forensics. (A common misperception is that there is often conclusive DNA or fingerprint evidence; in fact, it is rare.) While many nonfatal shootings have witnesses, not every shooting case has a witness who is usable at trial. Witnesses may not have gotten a good look at the shooter’s face, may be afraid to testify publicly against the suspect, or may themselves be involved in criminal conduct that they do not want to disclose or that makes them unusable in court. Even where there is one testifying eyewitness, one witness with no corroborating evidence does not a unanimous guilty verdict make. Nor is that the type of evidence likely to result in a guilty plea.
Despite the high percentage of cases that result in guilty pleas — about 92% of New York City federal cases ended in a guilty plea in FY 2022 (state court plea bargaining rates are similar) — triggerlocks and ammolocks are some of the most common federal trials. The cases often have no lesser charges available to make plea bargaining attractive to the defense.
The availability of high-quality surveillance video has increased significantly in recent years. Still, not every shooting is captured on video. Even when a shooter is seen on video, his or her face may not be visible. And even when video shows a shooter’s face, unless the quality is so good that jurors can identify the shooter as the defendant for themselves, the prosecution will have to find a person willing to testify that they know the person shown on the video. (Facial recognition technology can be used to develop investigative leads but is not offered in court as proof of the identity of the person pictured.)
Federal prosecutors have smaller dockets and more time for each case. They are thus often able to join shooting cases at the investigation stage.
Talented investigators can solve cases even where there is no usable eyewitness or clear video evidence. Investigators can seek warrants to search a suspect’s social media accounts, email accounts and Google/Apple cloud accounts for things like photographs of the suspect with a gun, photographs of the suspect wearing the same unique clothes as the shooter or messages about the shooting. Prosecutors can also obtain warrants for cellphone location data to show where the suspect was using his or her cellphone at the time of the shooting.
Differences between state and federal court
There are meaningful differences for shooting cases depending on whether they are brought in state or federal court. In appropriate cases, bringing a federal case can mean additional evidence available to the prosecution, stricter bail rules, a greater likelihood of conviction and a substantial sentence.
First, federal prosecuting offices cannot handle as many cases as state offices can, but each individual federal prosecutor typically has more time to devote to investigations than their state counterparts. In New York City, there are roughly six times as many state prosecutors as there are federal prosecutors. But given the broader scope of state criminal law, the proportion of state cases is far greater. In 2022, for example, there were 68,637 adult felony arrests with dispositions in New York City state courts. While some were declined by the prosecution or later dismissed, there were still 22,291 convictions. In New York City’s federal courts, on the other hand, only 1,671 defendants were charged in 2022, and that includes not just New York City, but all of Long Island and Westchester and other counties.
As a result, federal prosecutors have smaller dockets and more time for each case. They are thus often able to join shooting cases at the investigation stage, in contrast to most state cases where prosecutors only become involved after the NYPD decides that it has probable cause to arrest a suspect. The precharge involvement of a prosecutor who knows what it takes to win a conviction in a federal shooting case can help avoid legal errors and result in the accumulation of substantial evidence that is likely to hold up at trial.
Second, federal law regarding what evidence is admissible in court is generally more favorable to prosecutors than state law. For example, New York law does not recognize the exception, available under federal law, for evidence obtained by law enforcement officers who acted in good faith based on a search warrant that was later deemed defective. New York law would exclude the evidence at trial; federal law allows it.
Third, pretrial detention rules give federal judges more discretion than their state counterparts. A federal judge can order a defendant detained, without bail, upon a showing by the prosecutor that no conditions of release would reasonably assure the safety of the community. A federal prosecutor, armed with the evidence used to charge that the defendant has shot at someone, is often able to make this showing. Under New York’s bail laws, on the other hand, defendants are rarely ordered detained without bail. Even after recent amendments to New York’s bail reform laws, state judges do not have the same discretion as their federal counterparts in detaining charged defendants or setting bail.
A new law signed by President Biden in 2022 increased the maximum penalty for triggerlock and ammolock cases to 15 years’ imprisonment.
Fourth, federal discovery laws are less rigid than New York’s laws. New York’s discovery reform laws include early deadlines which prosecutors must abide by or face dismissal of the case. Under federal law, there are no statutory deadlines; instead, judges have discretion to set a reasonable discovery schedule and fashion appropriate remedies for any delays. In addition, federal discovery law, unlike New York law, does not require witness statements (except for exculpatory information) to be provided to the defendant early in the case — which may be reassuring for nervous witnesses deciding whether to speak to investigators.
Fifth, federal prosecutors’ smaller dockets not only result in more time to participate in investigations but also to successfully litigate. The conviction rate in New York City’s two federal courthouses was approximately 95% of charged defendants in FY 2022, compared to a 53% felony conviction rate for local state prosecutors in 2022, with an additional 19% of defendants initially charged with a felony convicted of a misdemeanor (it is rare that a defendant achieves a misdemeanor plea bargain in federal court).
Finally, federal sentences in shooting cases can be substantial. A new law signed by President Biden in 2022 increased the maximum penalty for triggerlock and ammolock cases to 15 years’ imprisonment, and federal sentencing guidelines encourage the judge to consider, in determining the sentence, whether the shooter attempted to kill the victim or injure the victim. There is also no parole in the federal system, unlike in state court.
Federal charges are possible in only a limited number of cases, and federal resources are limited. In determining whether to bring federal charges in a particular case, prosecutors and law enforcement are well served to consider the risk to public safety posed by the suspect; the type and strength of the evidence, including if there are sensitive lay witness statements; the likelihood of an appropriate bail package or detention order being set and the available sentences. Used in the right cases, federal charges can be an important tool for fighting gun violence in New York City.
Arms and the Men
Joseph Richardson Jr.