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Mr. ADAMS. For example, title 22, section 504 covers assault under the District of Columbia Code and carries a fine of not more than $500 or imprisonment of not more than 12 months. That is a misdemeanor, isn't it?
Mr. CHARLES DUNCAN. Yes.
Mr. ADAMS. I would like your comment as to whether we should, perhaps, have in that section something further, as well as the actual section, because as I understand it, all of the “attempts” under the District of Columbia Code are defined as “misdemeanors," or nearly all of them.
That is one of the breakdowns—that is one of the ways that an offense can be broken down. In other words, a man may commit an act that is housebreaking, which is a felony, but it can be broken down to attempted housebreaking, which is a misdemeanor; is that correct?
Mr. CHARLES DUNCAN. That is correct.
Mr. ADAMS. And Mr. Tobriner said that the purpose of that title II, arrest without a warrant, is to extend the arresting power of the officer to arrest for a misdemeanor without having a warrant, or filing an information. That is basically what this is, is it not?
Mr. TOBRINER. That is correct, provided the officer, also, findsunless immediately arrested, the suspect would not be apprehended, or may cause injury to others and damage to property, and tend to destroy evidence.
Mr. ADAMS. This is the circumstance that you mentioned where something has happened and that the officer at the present time is handicapped by not knowing whether this is a misdemeanor or a felony; therefore, he does not arrest. This proposal would allow the officer to arrest without risking a charge of false arrest, and so on.
Mr. TOBRINER. But he may arrest, and, subsequently, charge him with a misdemeanor.
Mr. ADAMS. Thank you.
Mr. Dowdy. And then he might not be apprehended, and would put a limitation upon the authority of the officer to arrest without a warrant-unless probable cause could be shown.
Mr. TOBRINER. In respect to this, extended class, yes.
Mr. TOBRINER. That is under the other clause. That is the intent section.
Mr. HARSHA. An attempt to violate.
Mr. Dowdy. An attempt to commit grand larceny is a misdemeanor in the District of Columbia ?
Mr. CHARLES DUNCAN. That is correct.
Mr. HARSHA. I was under the impression that in the joint hearings that we had of the District Committee of the Congress on the crime situation that there should be stiffer sentences for crimes of violence against individuals and for the use of concealed weapons in committing a crime that stiffer sentences should be meted out and should be. included in this statute. Is that correct?
Mr. TOBRINER. I do not recall.
Mr. HARSHA. If I read your bill right, the bill recommended by the Board of Commissioners and the Attorney General, there is nothing in there that imposes any stiffer penalties; is that right?
Mr. TOBRINER. They do increase the maximums, but-
Mr. HARSHA. You still leave that question to the enforcement methods?
Mr. TOBRINER. I do.
Mr. BROYHILL. Mr. Tobriner, this title I, as to arrest, is the result of an order by the Board of Commissioners?
Mr. TOBRINER. The result of?
Mr. BROYHILL. An order of the Board of Commissioners. Prior to that time, was there any abuse on the part of the Police Department as to the constitutional rights of the suspect?
Mr. TOBRINER. Yes, there was quite a few—a dragnet arrest in one instance-I recall 90 persons were arrested on suspicion of the commission of a crime of violence.
Mr. BROYHILL. Were these upheld by the courts-any action in the courts?
Mr. TOBRINER. I do not think so, because they were all released.
Mr. BROYHILL. This was about 2 years ago when your order was issued?
Mr. TOBRINER. Two or three, or four.
Mr. BROYHILL. Have there been fewer convictions since that order was issued?
Mr. TOBRINER. I would say—I cannot quote the figures on the convictions, but I can say that the rate of clearance by the Police Department has gone down since 1934.
Mr. BROYHILL. That may be the opinion of the court as to what is constitutional and what is not, as to title III of this bill--between that and Mr. Adams' title II. Are there any constitutional problems involved there?
Mr. TOBRINER. In title-
Mr. BROYHILL. When you passed your order there was no charge by the court or rule by the court?
Mr. TOBRINER. Yes, there was. There were a number of Supreme Court cases that held that arrests without probable cause are unconstitutional.
Mr. BROYHILL. Were any suspects set free as a result of the Department's action under investigative arrest procedures prior to your order?
Mr. TOBRINER. No, I think not. This was it.
Mr. WHITENER (presiding). I apologize for my late arrival, but airlines do not always abide by their printed schedules.
I understand that you did not see much in my bill that you approved of, Mr. Tobriner.
Mr. TOBRINER. There were a number of sections that we approved. Mr. WHITENER. Which ones?
Mr. TOBRINER. We have no objection to certain parts of II. We, also, approve the addition of the word "robbery” in title V.
We approve section 623 in respect to burglary in the first and second degree but without any minimum sentence.
We approve section 605 in respect to violence-an additional penalty.
Mr. WHITENER. You are opposed to that?
And we approve section 872 in respect to false reports to the police, although we think it is unnecessary since we have a police regulation that covers the same subject.
Mr. WHITENER. And you approve the section 607; do you?
Mr. TOBRINER. I made no comment on that. I do not see it. No, there will be no objection.
Mr. WHITENER. Then, you did find something in it, did you not? Well, now, I am interested in what you say about title III of this bill and your position that it is unconstitutional, because that is the title that was based exactly upon the draft of the American Law Institute, the Uniform Arrest Act. I would like to know in what specific matters you disagree with the great scholars who compose that institute.
Mr. TOBRINER. Ten members of this committee felt about it the same way, and the Bar Association of the District of Columbia, too.
Mr. WHITENER. There was a close vote in the District of Columbia Bar Association.
Mr. TOBRINER. I beg pardon?
Mr. WHITENER. The Chairman of the President's Crime Commission urged the President to sign the bill.
Mr. TOBRINER. And, apparently, in accordance with the President's veto message, every Federal agency suggested the veto.
Mr. WHITENER. Your Commission was not unanimous on this. Mr. TOBRINER. That is correct.
Mr. WHITENER. The bar association was close in its vote on it. The bar association vote was very close and far from conclusive as to the sentiment of the District lawyers. Out of a membership of approximately 4,000 lawyers, the vote was 168 in favor of a veto and 113 opposing the veto.
The former Assistant Attorney General in charge o I the Criminal Division of the Justice Department, who served as the Chairman of the President's Commission on Crime of the District of Columbia, apparently, agreed with us.
Why are you not willing to let the courts decide this, if you think it is so unconstitutional?
Mr. TOBRINER. Sir, I think that it is my duty as a public official, who is sworn to uphold the Constitution, to make that position known in respect to his approach to a bill which he feels to be believes to be unconstitutional.
Mr. WHITENER. I assume from your testimony that you get concerned about the constitutional aspects of firing a .22-caliber pistol in target practice. You do not worry about that constitutional problem, do you?
Mr. TOBRINER. I think that this has a very definite relationship to age. I think that it is publicly proper, too, to make a classification of this kind.
Mr. WHITENER. You think-
Mr. WHITENER. I do not have an alcoholic son, but I have a son who would like to shoot a target pistol. I am not talkling about alcoholics. I understand that you take the position that they are not criminals, they are sick people.
Mr. TOBRINER. That position has been taken for us.
Mr. WHITENER. You recommend that this Congress write into the law that a father cannot buy a pistol for target practice and then let his child who is under age--what is it, 21?
Mr. TOBRINER. Twenty-one, yes.
Mr. WHITENER. To fire the pistol unless the Commission issues some proclamation approving it.
Mr. TOBRINER. Yes, sir, I think this is justifiable.
Mr. TOBRINER. Yes, sir, we have many laws which prevent minors from doing things that constitutionally adults can.
Mr. WHITENER. But you think that it is bad constitutional law for officers to be able to stop a man when they have probable cause to believe that he has a machinegun under his coat, and to take him down to the police station?
Mr. TOBRINER. I say that he can arrest him, sir.
Mr. WHITENER, Yes, sir, but when does he arrest him-how does he know that this man has this--you said a little while ago---I understood you to say--that you did not approve of the officer, where they have probable cause, to believe that a man has committed or is about to commit an offense to take the man down and to hold him and to interrogate him for 6 hours.
Mr. TOBRINER. No, sir, I said that where there is probable cause to believe that an offense has been committed and the arrestee is the person to--person believed to have committed that offense that there was no objection to the arrest of that suspect.
Mr. WHITENER. The bill limits it to where he has probable cause to believe that this individual is committing or has committed a crime. I read that to mean that he can then ask the man for his name, his address, his business he is involved in, and the like, and then if the individual does not give that information in a manner satisfactory to the officer, that he may be detained and interrogated. That would not constitute an arrest and would not go on his record if he turned out not to be guilty of any criminal act.
Mr. TOBRINER. Calling attention to it nevertheless does not change it.
Mr. WHITENER. That is a play on words.
Mr. WHITENER. Suppose that this man had under his coat a machinegun--under it in a pocket built for it, and the officer had probable cause to believe that he had it.
Mr. TOBRINER. Then he may arrest him--not detain him-without a record, but to arrest him.
Mr. WHITENER. All right.
Mr. WHITENER. What if we call it an arrest, and put it on his record?
Mr. TOBRINER. And we say no record should be made of it, to give the police the right to interrogate him for 4 hours, thereby effectively relieving his right to make bail, to testify against himself.
Mr. WHITENER. Where does that enter into this—there is nothing in this to make a man testify against himself-there is nothing in the law to that effect.
Mr. TOBRINER. He is not given his right to counsel in this so-called detention proceeding. This is one of the requirements laid down by the Miranda case.
Mr. WHITENER. Why do you say that it gives him no right to counsel?
Mr. TOBRINER. Because there is no provision in here, whereas, there is under title I.
Mr. WHITENER. So that you say that if we write a new subsection in to say that nothing in this title shall preclude an individual from the right to counsel- you say it is all right?
Mr. TOBRINER. Well, plus that he shall have the right to bail and that he should be entitled to be presented without unnecessary delay to a committing magistrate.
Mr. WHITENER. We should write into it, in your view, the clear language that is now in the Constitution, even though it be surplusage and say that no person in the District of Columbia shall be required to give excessive bail?
Mr. TOBRINER. I think that this would clarify it.
Mr. WHITENER. We are playing with words again. This does not matter whether it is in an arrest or otherwise--every citizen in America has the right to habeas corpus and the reason for holding him does not make any difference. You do not think that there is anything in this that deprives him from that right to habeas corpus?
Mr. TOBRINER. No, sir, but if he has no right of communication to the outside world, it is an effective deterrent.
Mr. WHITENER. Where does this title say that he does not have any such right?
Mr. TOBRINER. Because in title I he is given the right-the right to be warned that anything he says can be used against him—the right to remain silent, and the right to have the effective assistance of counsel.
Mr. WHITENER. You are now saying that you are for title I?
Mr. TOBRINER. I am saying that I find no constitutional difficulty in respect to that.