• Millions spent for two years on prosecuting man for having single, inoperative shotgun shell
By Dave Gahary
In a town “ranked eighth in murders per capita in cities populated with 500,000 or more residents” in 2012, it would be reasonable to assume that the 3,800-strong Metropolitan Police Department of the District of Columbia (MPDC) would be busy chasing down leads to solve crimes. It would seem, however, that the cops in Washington, D.C. have bigger fish to fry.
Take their latest catch, Mark Witaschek, “a successful financial adviser with no criminal record,” who was “facing two years in prison for possession of unregistered ammunition.” This was no ordinary ammunition, however. In fact, this was “the first known case of a citizen being prosecuted in D.C. for inoperable ammunition.” Mr. Witaschek is a legal gun owner and avid hunter, who stores his firearms at his sister’s home in Arlington, Virginia, in order to abide by the law. In fact, Mr. Witaschek has never had a firearm in D.C.
Acting on a tip from Mr. Witaschek’s ex-wife, who was issued a temporary restraining order against him “for threatening her with a gun,” a claim later ruled “to be without merit,” the Metropolitan Police performed their duties worthy of a Hollywood movie on the antics of an out-of-control SWAT team.
On July 7, 2012, at 8:20 p.m., in the historic Georgetown section of our nation’s capital, D.C. Police banged on Witaschek’s front door to execute a search warrant for “firearms, ammunition, gun cleaning equipment, holsters, bullet holders and ammunition receipts.” Incredibly, “30 armed officers in full tactical gear” were let inside by Witaschek’s 14-year-old daughter, who “immediately went upstairs.”
Witaschek, relaxing with his girlfriend, was greeted by a SWAT team, who pointed guns at their “heads and demanded they surrender, facedown and be handcuffed.” Witaschek’s son was in the shower. “They used a battering ram to bash down the bathroom door and pull him out of the shower, naked,” said Witaschek. “The police put all the children together in a room, while we were handcuffed upstairs. I could hear them crying, not knowing what was happening.”
MPDC “shut down the streets for blocks and spent more than two hours going over every inch of his house.” Mr. Witaschek figured they caused $10,000 in damage.
Although they found no weapons, they did find an inoperable 12-gauge shotgun shell that misfired years earlier while he was hunting, which Witaschek kept as a souvenir, a spent brass casing of .270 caliber ammunition, a box of bullets “used in antique-replica, single-shot, muzzle-loading rifles,” and a holster, “which is perfectly legal.”
Incredibly, this was the second search of Witaschek’s home. On June 7, “exactly one month earlier, Witaschek allowed members of the ‘Gun Recovery Unit’ access to search without a warrant because he thought he had nothing to hide.”
They uncovered a box of .40 caliber ammunition, a gun-cleaning kit and a Civil War-era Colt antique revolver that Witaschek kept on his desk. They seized the relic “even though antique firearms are legal and do not have to be registered.”
Only registered gun owners can possess ammunition, including spent shells and casings, and D.C. law requires residents to register every firearm with MPDC. “The maximum penalty for violating these laws is a $1,000 fine and a year in jail,” according to the only mainstream media reporter who has covered this story, Emily Miller, the senior editor of opinion for The Washington Times.
Two weeks later, “D.C. police investigators went to his sister’s house — unaccompanied by Virginia police and without a warrant — and asked to ‘view’ the firearms.” His sister refused, and MPDC returned the next day “with the Arlington County police and served her with a criminal subpoena.”
About a month after the second raid, Irvin B. Nathan, D.C.’s Attorney General, “signed an affidavit in support of a warrant to arrest Mr. Witaschek.”
This is the same Mr. Nathan who gave NBC News anchor David Gregory a pass when who violated the law on live television on the December 23, 2012 broadcast of “Meet the Press” while interviewing the National Rifle Association’s chief executive officer Wayne LaPierre. Gregory, born to a Jewish father and a non-Jewish mother, was raised Jewish and is a practicing Jew today, wielded “an illegal 30-round magazine,” even after permission from MPDC had been denied. Although “D.C. Code 7-2506.01(b) prohibits the possession of magazines with a capacity in excess of 10 rounds of ammunition,” and Gregory clearly broke the law, Nathan felt that prosecuting Gregory “would not promote public safety.”
At 5:30 in the morning on August 24, Witaschek went to the police station to turn himself in. Caught in the cogs of MPDC’s bureaucracy, used to dealing with black, violent felons, he was “not transferred to central booking until 11:30 a.m., at which time he was told it was too late to be arraigned that day. He spent the night in jail and was released the next day at 10 a.m.”
A month later, Nathan offered “Witaschek a deal to plead guilty to one charge of unlawful possession of ammunition with a penalty of a year of probation, a $500 fine and a contribution to a victims’ fund,” which he turned down on “principle.”
There have been two pre-trail hearings up until this point, with the judge giving the government “until January 3 to come up with a good defense for the initial police raid without a search warrant.”
Witaschek declined the offer of probation if he plead guilty, and the judge at the second hearing disallowed the first warrantless search, which then excluded the box of rifle ammunition from the charges.
Determined to punish a law-abiding, hard-working, upstanding, taxpaying citizen, prosecutors pushed the charges forward, this time using “two items from the second raid—a misfired 12-gauge shotgun shell and a box of muzzleloader sabots,” which “are plastic covers that make it easier to push the bullet into a muzzleloader gun.”
Thus, the charge for “unregistered ammunition,” “the misfired shotgun shell that Mr. Witaschek has kept as a souvenir from deer hunting years earlier,” is all that remains.
Witaschek explained why he feels they are pursuing him.
“I believe that some in the prosecution and police apparatus know what they did and are trying to continue this charade to cover their tracks,” he said. “If I am proven a ‘criminal,’ then their bad acts are covered. If not, they are liable.”
Witaschek told Ms. Miller: “Since the night my home was invaded and family terrorized by a militarized D.C. police force, I am more afraid of what government is doing than I am of any of the people I encountered when I spent the night in jail. The Second Amendment was meant to guarantee individuals the right to protect themselves against government—as much as against private bad guys and gangs.”
A jury trial is scheduled to begin on February 11. If convicted, Witaschek “faces a year in jail and a $1,000 fine for having a single, inoperable shotgun shell in his home.”
Dave Gahary, a former submariner in the U.S. Navy, is the host of AFP’s ‘Underground Interview’ series.