Lt. Cmdr. White, A Shooting in Chattanooga, Part II: Deferred Action

[This post, the second in a series, addresses the power of the Executive Branch to decline to prosecute a Navy Officer even if, technically speaking, his actions constituted a violation of law, by comparing a decision to prosecute or not against the officer with the decisions of the Obama administration to "Defer Action" against certain illegal immigrants in the United States. on the possibility that a Navy officer may be charged for the use of his personal weapon to protect himself and others from an unlawful attack by Muhammad Abdulazeez principally addresses certain defenses that the Navy Officer would be entitled to assert if he is charged and put on trial. Part I addresses the initial rumor that the Officer would be charged and parses the Navy's declamation of that rumor. Part III addresses certain defenses that the Navy Officer would be entitled to assert if he is charged and put on trial.]

A previous post discussed the rumor that the United States Navy will charge Lt. Commander Timothy White, a career officer, with discharging a weapon on federal property. The charge, the rumor suggested, would grow out of Lt. Commander White's use of his personal sidearm to deter a Kuwait-born Palestinian, Muhammad Abdulazeez, from continuing his attack on a recruiting facility in Chattanooga in July.

While temporary comfort can be taken in the Navy's statement that "no charge has been filed," the question remains, "might a charge be filed against Lt. Commander White for the use of his personal sidearm?" As improbable as such a charge seems in the circumstances, there are grounds for such a charge, and for that reason, we must all insist that careful attention to the process undertaken by this Administration be given by Congress.

There is a federal statute that Lt. Commander White may have, at least as a technical matter, violated by possessing a firearm while at the recruiting facility. That statute prohibits possession of firearms by virtually everyone, with a few specific exceptions, while present in a government facility.

The firearms possession charge makes anyone whose knowingly possesses a firearm in a federal facility guilty of a felony. The exceptions to that absolute rule apply to certain law enforcement officials, certain federal officials and members of the military who are authorized by law to possess a firearm, and certain individuals whose possession is related to "hunting or other lawful purposes." In the diagram above, anyone in the blue segment is guilty of a possession offense and subject to prosecution, with a possible fine and imprisonment for up to one year.

[This provision of law, by the way, was added to the federal code in the waning days of President Ronald Reagan's second term in office. Reagan signed the "Anti-Drug Abuse Act of 1988 on November 18, 1988. This restriction was an amendment included in the legislation. Glenn Beck's the Blaze reported in 2013 that the ban on weapons was a function of a George H.W. Bush administration regulation regarding military law enforcement. That conclusion is only partially correct. As the statute makes clear, it does not apply to possession of a firearm by a member of the military if authorized by law. The directive mentioned in the 2013 article on the Blaze is that provision that authorizes military law enforcement personnel to possess firearms during the performance of their duties. In the absence of that directive, even military policing personnel would violate the possession statute by carrying a weapon on their person in a federal facility.]

Now, we are not privy to all the salient facts of Lt. Commander White's actions. From reports, however, he appears to have possessed a firearm at the recruiting center. Another section of the same statute designates such property as a "federal facility." So, it would seem from published reports that White possessed a firearm in a federal facility. Still, if White possessed that firearm because he was a "member of the Armed Forces possessing a firearm ... authorized by law," he would not be in the blue segment, and he would not be punishable under the possession statute.

One point of contention -- in the aftermath of the shootings at Fort Hood, the Washington Navy Yard, and now Chattanooga -- is the refusal of the federal government to permit members of the military to possess their firearms aboard military installations, at their duty stations. As noted above, the ban on possession of a firearm in federal facilities dates back to the Reagan administration. It became part of federal law with the adoption of the Anti-Drug Act of 1988. Given that the ban is statutory, but that it includes a provision allowing possession of firearms "authorized" by law, it seems the quickest fix now for our disarmed military personnel would be a new directive from the Pentagon or the Department of Defense rather than attempting to amend a federal statute.

Nothing that I have discovered publicly available suggests that commanding officers of recruiting installations have been authorized specially to carry sidearms in federal facilities. I invite correction of my misapprehension if anyone knows otherwise. Assuming that there is no such authorization, then, Lt. Commander White would have committed a technical violation of 18 U.S.C. 930 simply by possessing the sidearm while in a federal facility.

Still, simply because a person has committed a technical violation of a law does not invariably mean prosecution and conviction for the offense. We know that this is so because we have watched President Obama ignore our immigration laws for nearly seven years, and then, to compound his dereliction of duty, he announced two separate programs that involve refusals by the Executive Branch to enforce existing law. In both the Deferred Action for Childhood Arrivals and the Deferred Action for Parents of Americans programs, the key feature is the determination by the Department of Homeland Security to exercise "prosecutorial discretion" not to enforce the law.

That's right.

The very decision of the Obama Administration not to enforce immigration law against beneficiaries of its DACA and DAPA programs reflects the assertion by the Executive Branch of a power not to enforce an otherwise applicable criminal law. Controversy surrounds the decision by federal law enforcement agencies not to enforce the law. Yet, the basic principle reflected in a decision not to prosecute -- that the Executive possesses some discretionary authority to prioritize the enforcement of the law -- is rooted in the history of our law. [Jonathan Keim, on National Review's Bench Memos, gives a whirlwind tour of the history of prosecutorial discretion in Prosecutorial Discretion, Part One: Indisputably There, But Disputably from Where?]

Neat constitutional separation of powers questions exist at the federal level when the Executive Branch declines to prosecute one case or another, to the effect that a statute enacted by the Congress is left unenforced. For our purposes, it suffices to note that this Administration is convinced it has the right to exercise discretion in deciding which cases to prosecute, and that it can exercise that discretion by declining to prosecute some cases that appear to fall squarely within the scope of a federal statute.

Given its own proclivities to exercise such discretion, it would be beyond unreasonable, in the particular circumstances of the Chattanooga shootings, for the Department of Justice or the Department of Defense to prosecute Lt. Commander Timothy White for his technical violation.

Indeed, while many may think that the word "impeach" gets bandied about too frequently, I could not imagine a more reasonable ground for impeaching a United States Attorney, an Attorney General, or the President, than that they failed to exercise sound discretion in this matter to refuse to prosecute.