Much has been made of David Gregory’s alleged possession of a large capacity ammunition feeding device during an airing of Meet the Press on December 23.

In my mind there are two big questions to answer: 1) can the government prosecute Mr. Gregory; and 2) if it can, should it expend the time and resources to do so.

There are several unanswered questions regarding the government’s ability to prosecute. First, was the magazine real? Does law enforcement have possession of it? If law enforcement can’t recover the magazine, does the recording of Meet the Press’s broadcast provide enough evidence to prove the authenticity of the magazine?

Next, as some media sites have asserted, did the ATF, perhaps mistakenly, inform NBC personnel that it was permissible to use a large capacity magazine as a prop on the show? If that happened, it would be difficult to successfully prosecute Mr. Gregory. It would be hard to convince a jury to convict Mr. Gregory if he could credibly claim he was relying on the approval of a federal law enforcement agency that had been asked for permission before using the magazine.

Even if it could prosecute Mr. Gregory, does it make sense?

On the one hand, the Metropolitan Police Department (MPD) is faced with what could be perceived as someone publicly flouting the law to make a point on TV. This practically compels MPD to investigate.  On the other hand, given that there seem to be large obstacles to prosecution, no injuries were sustained, and that there is no real possibility of any punishment being either necessary or actually imposed, is this a case that DC’s Office of the Attorney General should take on?

Finally, putting aside the investigation-specific considerations, in the wake of the massacre at Newtown, is this really what we want the focus of our debate about gun-control issues to be?

During Sunday’s show, Mr. Gregory agreed with NRA Executive Vice President Wayne LaPierre’s position that we should explore any and all possibilities to make massacres like that at Newtown less likely. Mr. LaPierre had proposed putting armed officers and/or volunteers at elementary schools. Mr. Gregory challenged Mr. LaPierre, stating that a logical extension of his position would be to explore the possibility that a restriction on assault rifles and large capacity magazines might help. Mr. LaPierre categorically stated that any restriction on either assault rifles or magazines would have no possibility of working. That simply makes no sense. 

Along with improvements to our tracking of access to weapons to those with serious mental health issues, which Mr. LaPierre proposed, we must explore every possibility to prevent another massacre of children.

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David Benowitz is a criminal defense attorney based in Washington, DC. He is a founding partner of Price Benowitz LLP, a criminal defense and personal injury firm with offices in the District of Columbia, Maryland and Virginia. You may visit his firm’s Maryland gun lawyer and Virginia gun lawyer pages for more information about relevant laws in those areas.

 
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