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OSD 155: Gun rights and the police
Police tactics in a world where everyone's armed.
That title probably puts some ideas in your head. Here’s a question to explore: why? Why does that title mean anything? Gun rights are a concept and the police are a concept, but why do they overlap?
The interesting thing is that the shape of the overlap has changed over time. After the birth of gun control in the late 19th century, the effect of permit regimes was to transform gun ownership from a natural born right into a power that originates in the state, and which is meted out by the state to those it favors.
In “Everybody agrees on guns and they just realized it”, we described this centralized conception of gun ownership:
There’s a frequent shape of online talking-past-each-other that goes like this:
Gun control folks: “Ha, let’s see how gun rights people like it if black people start getting into guns.“
Gun rights folks: “Um, cool? We think that’s awesome, gun rights are human rights. And a lot of us are black.”
The reason for that misunderstanding is what we ran through earlier in this piece: gun control is actually just a particular flavor of the centralized model of gun rights. So its adherents come at this from the understanding that everyone’s on the centralized model, and they’re just disagreeing about who should get the steering wheel. So of course they’d predict racism on the other side: they have good reason to! Historically, the centralized model has been used by powerful groups to control weaker groups. That’s how it works, by definition.
But today’s gun rights community is as confused by that as they are insulted. They’re not coming from the centralized model, where gun rights flow through a central authority. Gun rights people today are native to the decentralized model, where gun rights — the right to self-defense, really — are intrinsic to all people, with no authority needed (or wanted) to bless them.
So on one side, you’ve got gun control people arguing about which particular flavor of centralized model ought to be law. On the other side, you’ve got gun rights people arguing for the decentralized model. Each side thinks their model is the one that the other side should value. So weird things happen when they argue.
This confusion is understandable, though, because in a way, the decentralized model is very new. The 20th century was prime time for the centralized one — post-Reconstruction gun laws in the south, the Sullivan Act, may-issue laws in dozens of states, the National Firearms Act of 1934, the Gun Control Act of 1968, the 10-year federal assault weapons ban passed in 1994, and a variety of state-level bans and permitting regimes.
People objected throughout, but to little avail. There was nothing like the pro-gun-rights efforts you see today. The reason why is almost tautological, and springs from the rules of the centralized model itself. In a world where you need the authority’s blessing to exist, you either make the authority-approved version of your thing, or you disappear. So, some people made the authority-approved version of gun rights — discriminatory carry permits, feature bans, weakening of Fourth Amendment protections for gun carriers, and so on.
The centralized model put the police at the very center of gun rights, because the state was the font from which your rights dribbled. In the jurisdictions that used to have may-issue carry regimes, and in the last eight states that still do, it was/is the police deciding who has the “good moral character” for a permit. Your gun rights were tightly correlated, explicitly by law, to what the local police thought of you.
But the centralized model is, in the U.S., a historical anomaly. Gun control began in the late 19th century, and it peaked in 1994. On either side of that time window, the decentralized model of gun culture has ruled. And in that worldview, the role of police is very different.
This is where, incensed by the killing of Amir Locke last week, it’s easy (and tempting) to go full Rage Against the Machine on this stuff. Yes, something must be done about vengeance, a badge, and a gun. And yes, if you’re minding your own business and a bunch of guys burst into your house in the middle of the night with guns drawn, with very few exceptions their violence doesn’t magically take on a positive moral valence just because they happen to be government employees.
That’s easy, but it’s incomplete. Let’s examine the problem fully.
First, just to make sure we approach this rigorously, the good news: the chances of something like this happening to any particular gun owner are extremely low. About 43% of US households have guns, over 50 million people have contact with the police each year, and horrors of this shape — gun owner lawfully and reasonably exercises their right to possess a gun, and is summarily killed by police who created a situation where the gun owner had no way to get out alive — number in the dozens.
The bad news is that these cases do happen — this one, Breonna Taylor, Daniel Shaver, Andrew Scott, Philando Castile, Kathryn Johnston, and the list goes on much longer unfortunately. Everybody understands that across millions of interactions, tragic mistakes may occasionally happen. The problem, and what really grinds, is that it’s often not at all apparent that the people making the mistakes care. Deputy Richard Sylvester, who killed Andrew Scott, got qualified immunity. Officer Philip Brailsford, who killed Daniel Shaver, took a medical retirement based on PTSD he developed in the public response to his killing of Shaver, and is now on a $2500/month pension.
Bodycam footage of these cases routinely shows police make no attempt to render aid even after any “split-second” misunderstandings become clear — as in the killing of Ryan Whitaker above, where the police stand around while Ryan bleeds out, playing semantic games with his grief-stricken girlfriend and refusing to let her hold him as he dies. (The common refrain here is that there’s no useful aid they could render, but contrast that utter indifference to how they respond when fellow officers have been shot.)
There are fortunately innumerable videos of police acting with incredible heroism, in all kinds of situations. Those are all over YouTube too. And again, statistically, it’s vanishingly unlikely that any particular gun owner will, in the course of exercising their rights, be killed by police and then bleed to death while those police stand around making wisecracks. But recognizing that gun rights are paramount means recognizing that each horrific video has to be a learning opportunity — not a call to make excuses, or to dig for reasons why this one was yet again “justifiable”. They’re a call to say, “Ok, this happened, and nobody wants this. So as professionals, what is each of us going to improve so that this doesn’t happen again?”
The centralized model of gun “rights” places police at the center. That’s where you get headlines like “Armed man shot by police”. But Amir Locke was an armed man. So were Daniel Shaver, Ryan Whitaker, Philando Castile, and on and on. They had guns, which in the centralized model means their gun rights exist at the whim of the state. By definition in the centralized worldview, “armed man” means “threatening man” whenever the police say it does.
In that model, your gun rights have to bend to work around police tactics. In the decentralized model, it’s police tactics that have to bend around your gun rights.
That sounds a bit more normative than we like to be around here, but it’s really just descriptive — widespread gun rights are mutually exclusive with the status quo of police tactics. One or the other has to change.
The status quo isn’t great, but one thing it has going for it is that it’s clearly defined. It’s the “objective reasonableness” standard established in the 1989 Supreme Court case Graham v. Connor. From Wikipedia:
The Court then explained that, “As in other Fourth Amendment contexts... the ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” The Court also cautioned, “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
On its face, that sounds pretty … reasonable. But the operative bit is that last part. “No hindsight allowed.” The way courts have applied that is to emphasize the “split-second” nature of police shootings. Which is fine, but what courts have studiously avoided emphasizing is any role that police tactics play in creating the very split-second exigencies that get people killed.
All of the shootings we mentioned above fit this pattern. Take Amir Locke. Police entered the apartment silently, roused him, and killed him when in the few seconds of twilight between sleeping and waking up he did what anybody would have done. The justification will be that the police had only a split-second to decide whether to fire.
To recap: a half-asleep Amir Locke should have instantly assessed the situation to understand that the two strangers standing over him while he slept were police, he should have done everything right with that knowledge, and errors are punishable by death. But the police, by contrast, aren’t held to a standard of perfect judgement (even when they have hours to plan ahead, not just a few seconds), and if painting everyone into a corner and then shooting their way out gets a random person killed, then hey, oopsie.
This is what Scott Alexander called an “isolated demand for rigor”. Great essay. This excerpt doesn’t do it justice, but it is the excerpt that most succinctly captures the point:
I see this a lot in medicine. Someone jumps on a new study showing the selenium or chromium or plutonium or whatever cures cancer. It is brought up that no, really, the medical community has investigated this sort of thing before, and it has always been found that it doesn’t.
“Well, maybe the medical community wasn’t investigating it the right way! Maybe the investigators were biased! Maybe they didn’t randomize right! Maybe they used a population unusually susceptible to cancer-getting! Ninety percent of medical studies are wrong! Those twenty experiments showing a lack of effect could be total bunk!”
Yes, maybe these things happened in each of the twenty studies that disagree with you.
Or maybe they happened in the one contrarian study you are getting so excited about.
As more people become able exercise their gun rights, an ever-bigger percentage of people are going to have a gun on them or nearby when encountering police. And that means that in a raid (which are often indistinguishable from home invasions), or when there’s a strange knock on the door at night, people are going to use their gun for its purpose. That’s just a description of reality in a world of robust gun rights. So either that can be a death sentence for ≥1 of the people involved in the encounter, or police tactics can change.
The good news is that the changes aren’t hard. On-street encounters are more dynamic, and training to end those peacefully is a much more advanced skill. Home raids are easy to train for, because for the most part the training shouldn’t happen at all — these types of raids should become a relic of the past.
Side note: the knock vs. no-knock distinction is often not material. Just a matter of whether they shout “police” a few seconds before or after smashing the door. But the general point stands. Callout raids for the vast majority of cases, and forced entry should be almost completely exclusive to hostage situations. Anything else is going to keep getting people killed.
Just last week, Delta Force did a callout raid on the head of Islamic State. If that’s good enough for Delta Force to go after the world’s most wanted terrorist, it’ll work fine for the local PD.
This week’s links
We often talk about how the First Amendment is to encryption as the Second Amendment is to guns. But this is an interesting perspective on digital tools as arms in and of themselves.
Thorough data from Lucky Gunner.
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