EXCLUSIVE: Supreme Court considering case of man prosecuted for shotgun shell in D.C.
Mark Witaschek sues for government overreach in violation of the Fourth Amendment rights
Nine years ago, I exclusively reported about D.C. raiding Mark Witaschek’s house and prosecuting him for having one inert shotgun shell, but no gun.
I was in court when the judge convicted him of possession of unregistered ammunition. Witaschek later was able to get the case overturned.
But the D.C. government was determined to get him on something and went after his taxes. And now the Supreme Court will determine if it will hear his case.
“They wanted really to bring me down on the ammunition case. They were mad that I only got a $50 fine and had to register as a gun offender” Witaschek told me in an interview Wednesday. “They thought I should have gotten a bigger fine and jail time. They wanted more.”
Witaschek said the day after his conviction on muzzleloader bullets in 2013, the city announced it was starting a criminal investigation into his taxes. The government went through every aspect of Witashek’s life – without a warrant – until it could catch him on some unpaid taxes from years earlier.
On Wednesday, the Supreme Court announced Witascheck’s case was distributed to the justices to determine if it will hear it. The conference on his case — Mark A. Witaschek v. District of Columbia - will be on February 18.
The Petition for Certiorari and appendix filed in the Supreme Court are attached at the bottom of this story.
“They’ve used unlimited resources of the government to attack me on a tax issue that could have been easily settled by an audit. And they did it because they were retaliating against me for losing on the ammunition case,” said Witaschek, who moved out of Washington after the raid on his house.
Dan Peterson has been Witaschek’s lawyer since the ammunition case.
“Mark deserves to have his case heard by the Supreme Court because he has been through a decade-long fight with the D.C. government that has threatened his livelihood and reputation, and the well-being of his family,” Peterson told me Wednesday.
“This has happened because of outmoded privacy rules about Fourth Amendment searches and seizures. Only the Supreme Court can correct those.”
When I first started reporting on this case, Witaschek was fighting the government both for infringing on his Second Amendment rights and violating his Fourth Amendment rights. Now, the case that came out of the tax investigation is solely a fight for his rights against illegal search and seizure.
Bruce Fein, who was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan, is Witaschek’s lawyer. I asked Fein why this case is important for the Supreme Court to take up this term.
“The prevailing, pre-internet jurisprudence is as divorced from reality as the geocentric theory of the universe. It denies intimate details of our privacy constitutional protection,” said Fein.
“The case seeks to bring the Fourth Amendment into alignment with reasonable expectations of privacy in the digital age.”
The major question presented in the petition for cert is:
Whether the Fourth Amendment’s third-party doctrine should be overruled, limited, or held inapplicable when the government collects massive digitally recorded data revealing a detailed mosaic of an individual’s private life without satisfying any threshold of suspicion or vetting by a neutral magistrate consistent with Carpenter v. United States, 138 S.Ct. 2206 (2018).
Peterson pointed out that the digital records used to convict his client were not obtained by warrant but by 26 non-judicial, administrative summonses issued to third parties by the District’s Office of Tax and Revenue.
“This is my last chance to get my life and reputation back,” said Witaschek. “I’m hoping the Supreme Court will take my case and issue a decision that provides more definition on the government overreach in violation of the Fourth Amendment.”
Witaschek has been through biblical-level persecution for a decade by the D.C. government. He is the proof of the saying that if the government wants to get you, it will.
This could happen to anyone because all your digital communication is not private. There is no Fourth Amendment protection for digital footprints that you leave behind with companies. The high court now can say if the government can continue to abuse its power.
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