Herrington v. United States
6 A.3d 1237
| D.C. | 2010Background
- Herrington was convicted in 2006 of unlawful possession of ammunition (UA) based on handgun ammunition found in his home.
- After Heller, the District's handgun ban was held unconstitutional; Herrington argues UA is unconstitutional as applied because it prohibits protected Second Amendment conduct.
- Two boxes of ammunition were found in a bedroom heating vent; fingerprints on the .380 ammo box belonged to Herrington.
- The jury convicted Herrington of UA; the trial court had instructed that proof of possession and knowledge sufficed, without requiring lack of a valid firearm registration.
- DC Court of Appeals previously held in Logan that possession of ammunition is presumptively unlawful and lack of a registration is not an element; exceptions are affirmative defenses.
- The majority concludes UA is unconstitutional as applied where the defendant’s possession of ammunition in the home is protected by the Second Amendment and no lack of registration evidence was shown at trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is UA unconstitutional as applied post-Heller? | Herrington (Logan) argues Second Amendment protects home ammo possession. | United States asserts UA is valid with registration defenses not required to prove absence of registration. | Yes; UA unconstitutional as applied to Herrington. |
| Does Logan place the burden on defendants for exceptions to UA? | Herrington did not need to negate registration; burden lies with prosecution per Logan. | Prosecution bears burden to prove possession and defenses are not elements. | Burden on defendant for exceptions; government need not prove lack of registration. |
| Does plain error review apply to this unpreserved Second Amendment claim? | Plain error because law was settled and contrary after Heller/mCDonald; conviction rests on protected conduct. | No plain error because the error was not obvious at time of appeal. | Plain error; error satisfied and prejudices substantial rights. |
| Does the constitutionality depend on lack of a registration certificate evidence at trial? | Lack of registration is not required to convict under UA; but as applied it’s unconstitutional. | Registration status could be used as an affirmative defense but not required for conviction. | Conviction reversed; cannot sustain UA as applied. |
Key Cases Cited
- United States v. Heller, 554 U.S. 570 (U.S. 2008) (fundamental individual right to possess firearms for self-defense; home possession implicated)
- McDonald v. City of Chicago, 130 S. Ct. 3020 (U.S. 2010) (Second Amendment incorporated against states)
- Logan v. United States, 489 A.2d 485 (D.C. 1985) (possession of ammunition presumed unlawful; four exceptions are affirmative defenses)
- Plummer v. United States, 983 A.2d 323 (D.C. 2009) (unconstitutional to convict for unregistrable handgun in home when registration ban blocked registration)
- Lowery v. United States, 3 A.3d 1169 (D.C. 2010) (plain-error analysis in Second Amendment context; distinctions from Plummer)
- Howerton v. United States, 964 A.2d 1282 (D.C. 2009) (trial court rejection of Second Amendment protection for possession in home under certain facts)
- In re Winship, 397 U.S. 358 (U.S. 1970) (beyond a reasonable doubt standard for criminal convictions)
- Patterson v. New York, 432 U.S. 197 (U.S. 1977) (due process limits on burden-shifting in criminal statutes)