DC Superior Court Judge Hildum found probable cause for unlawful discharge of a firearm and released the defendant on personal recognizance on July 16.
Barry Fox, 72, is charged with unlawful discharge of a firearm for his alleged involvement in a shooting that occurred on July 12, on the 2500 block of Brentwood Road, NE. No injuries were reported.
According to court documents, the incident allegedly occurred at Fox’s home. Three rounds of ammunition were reportedly fired inside the home from a Colt Lawman 357. The shots were reported to 911 by two separate neighbors.
The prosecution called a responding Metropolitan Police Department (MPD) officer to testify regarding his involvement in the case.
The officer established that he responded to two phone calls alleging three gun shots were fired from the general area of the incident address. The officer responded to the scene with other members from MPD.
“He didn’t want us to come in and he also didn’t want to come out,” the officer said.
The officer explained that upon arrival, Fox denied law enforcement entry into the unit. MPD went to Fox’s wife, who was across the street, and the officer said she granted them permission to enter the home out of concern for Fox. According to the officer, Fox’s wife told officers that Fox had been drinking while on medication for a recent hip surgery. The officer confirmed he was not present for this conversation.
While searching the home, the officer said he found a firearm on the couch, next to where Fox was sitting. The officer explained that there were three spent shell casings and three live rounds still in the firearm.
During cross-examination, Fox’s attorney, James Brockway, emphasized that no witness has identified Fox as the shooter, or specified his home to be the location the shots were fired from.
Brockway confirmed with the officer that he was not present for the 911 calls that reported the shots, or any other conversations had with witnesses.
In addition, Brockway asked the officer about the state of the firearm when he recovered it. The officer said it was not warm to the touch.
When asked whether MPD received any other reports of gunshots that night, or if there were frequent gunshot reports in the neighborhood, the officer said he did not know.
“There is not probable cause for three principal reasons,” said Brockway.
Brockway alleged that there is no evidence that these shots were fired without a permit from the Chief of Police, which is a legal requirement of unlawful discharge. In addition, he said there is no evidence shots were fired from a specific location or identification of Fox as the shooter.
“A reasonable person who obtained a permit to fire a firearm, when contacted by the police, would say so,” said the prosecution.
The prosecutor argued for probable cause, explaining that Fox was found with a firearm next to him right after 911 calls were made. They also said there is no evidence of a lawful permit from the Chief of Police and Fox never indicated that he acted in self-defense.
“I think what we have here is circumstantial evidence… we know from the laws that circumstantial evidence is good evidence,” said Judge Hildum and found probable cause.
Brockway urged Judge Holdim to release Fox, citing multiple letters of support from the community, Fox’s current gun licenses in Virginia, Maryland, and DC, and a history of employment as a driver for Metro Transit and cellphone technician. Brockway highlighted Fox’s limited criminal history, a 1983 minor drug charge.
“It is a tragic reality that many people in DC have been hit by stray bullets,” said the prosecution.
The prosecution asked for a continued hold, highlighting the seriousness of the offense. They asked Judge Hildum to restrict Fox’s access to firearms if he grants release.
Judge Hildum released Fox on personal recognizance, emphasizing Fox’s good standing with the community and that the gun was registered at the time of the incident.
The judge prohibited Fox from possessing any form of firearm or ammunition. Other conditions of his release include the completion of substance abuse and mental health assessments with the Pretrial Services Agency (PSA) and biweekly PSA meetings.
Parties are slated to reconvene Sept. 8.
