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FOIA Litigation Beat: Under Court Order, DC Releases Papers from 2012 When Police Sought Arrest of David Gregory of NBC

dcogcadmin | January 25, 2015


DC – January 25.   After David Gregory showed an empty 30-round clip on his NBC-TV “Meet the Press” show December 23, 2012, as he interviewed Wayne LaPierre of the NRA, police sought a warrant for his arrest.  D.C. decided against prosecution and the subject faded, but after another unsuccessful FOIA defense, D.C. government agencies dropped their fight Friday (23) and a key document emerged at the court’s order. 

The original kerfuffle was whether to enforce against Gregory and those working with him a part of the District’s strict gun laws. DC Code makes it a misdemeanor criminal offense to possess a “large capacity ammunition feeding device” (large, meaning more than 10 rounds). Police at the time looked into the TV show incident and presented a warrant to D.C. Attorney General Irvin Nathan, who declined to sign off, informing NBC January 11, 2013.

William A. Jacobson, a Cornell Law School clinical professor who founded the “Legal Insurrection” blog featuring conservative politics and law, suspected “draconian D.C. gun laws are not enforced against the famous and connected D.C. elites.”  In search of details in his quest for “public officials to be held accountable for the unequal application of the law,” Jacobson just days later in January 2013 requested under DC FOIA the District’s files, including correspondence exchang ed between D.C. agencies and counsel for NBC plus all otyer records including the recommended warrant and supporting affidavit forwarded to the AG.   

The Office of Attorney General in February 2013 released some emails with redacted details but withheld the warrant and affidavit that police had presented the attorney general. The Metropoliltan Police Department responded in April 2013 again with a partial release. According to Jacobson’s complaint later filed in court, the OAG cited exemptions for records of law enforcement investigations where release would interfere with “enforcement proceedings” (Exemption (a)(3)(A)(i)) and for several kinds of privileged materials (Exemptions (a)(4) and (e)).

In May 2013, with representation from Judicial Watch, the blogger sued in D.C. Superior Court, Jacobson v. D.C., Case No. 2013-CA-3283. 

FOIA cases can be Dickensian in pace.  The District originally tried to get the case tossed on grounds the agencies had done all they needed to do under the law–an odd argument at the start of a FOIA case since the premise of going to court over a public records denial is that the requester has not received all releasable records. That is, the lawsuit is intended precisely to ask the court to sort out what should be released–to test the government’s assertion that it has done what the law requires.   The court made short work of the District’s view and allowed the case to proceed. 

By late last year, with both sides claiming everything was clear and could be decided without need of a trial, the case came to an end. On December 9, the court (Okun, J.) ordered the District to turn over the witheld affidavit in 30 days. 

This month, on the eve of the deadline to comply, District defendants offered a flurry of papers to the courts to stay and to reconsider, and they filed a notice of appeal in the D.C. Court of Appeals.

But the parties agreed at week’s end their case should be dismissed (aided, according to Judicial Watch, by their own agreement to forego legal fees).  The fate of other parts of the original request is not immediately clear.

Judicial Watch posted the affidavit Friday (23) and by Saturday news stories headlined details from it including how police warned against using the prop.