A Bullet-Proof Argument

James Weyant, a 46-year-old with underwear issues, was shot when confronted by an Altoona, Pennsylvania, police officer in an alley at about four in the morning.  It seems Weyant was carrying his pair of guitar hero boxers in his hand because the waist band had stretched some and they no longer stayed put.  The officer, Mark Sprouse, mistook the underpants for a gun and shot Weyant.

Blair County District Attorney Richard A. Consiglio said in June that Sprouse was investigating the “suspicious actions of a civilian in a dark alley” when the officer was confronted by a man holding black underwear that appeared at the time to be a weapon.

Sprouse was cleared of any wrongdoing. Or as Turley explains it:

The officer said that he mistook the shorts as a weapon, a claim that was accepted by the police review board composed of representatives of the police department and the Fraternal Order of Police.

These were underpants. What if they were a gun? A legally carried gun?  It’s times like this that I truly wish Joel Rosenberg was still with us to explain things to me.

Chicago police superintendent Garry McCarthy is not happy about the new concealed carry laws in Illinois.  And now he is predicting that police will shoot citizens who are lawfully carrying firearms.

During an interview with WVON radio McCarthy made some very bold statements that show his disdain for the 2nd amendment.

“You put more guns on the street expect more shootings,” McCarthy said. “I don’t care if they’re licensed legal firearms, people who are not highly trained… putting guns in their hands is a recipe for disaster. So I’ll train our officers that there is a concealed carry law, but when somebody turns with a firearm in their hand the officer does not have an obligation to wait to get shot to return fire and we’re going to have tragedies as a result of that. I’m telling you right up front.”

But there is a constitutional right under the Second Amendment? You bet there is, and that’s what makes this particularly problematic.  Not only does the law not require a police officer to wait until he sees a muzzle flash before acting in self-defense, but the First Rule of Policing demands he take no crazy chance at all.   If it’s perfectly reasonable to shoot a guy for walking about with underpants in hand, there is no way the glint of steel doesn’t draw a bullet.

The story comes via a gun blog Guns ‘n’ Freedom, an excellent name if you’re a fan of guns and, well, freedom. The post culminates in this point:

While it’s a sad truth that police officers do sometime make mistakes and shoot the wrong person, predicting that his training will result in gun carrying citizens being shot is way over the line.

The contention is that Garry McCarthy’s “threat” is intended to intimidate gun folks to either not get concealed carry permits or not carry guns for fear of being shot, perhaps killed, by police.  And no doubt, that’s what McCarthy has in mind when he tells gun folks that they’re going to die.

But McCarthy’s point, that no cop is going to wait until a guy with a gun identifies himself as a law-abiding, Second-Amendment loving, American or a skel bent on harming a cop before invoking the First Rule is real.  Gun rights advocates, freedom advocates, can call it “over the top,” but no cop will await the bullet headed his way to find out.

Much of what gets posted here involves police violence, whether the product of malevolence or stupidity, where someone is needlessly harmed or killed at the hands of police who could have done far better in the performance of their duties.  The point McCarthy raises reaches the line where it becomes hard to explain how a police officer is wrong to shoot.  When he’s staring down a gun barrel rather than boxer shorts, the situation is substantively different.

Others are far more knowledgeable about guns than I am, and perhaps they have an idea about how this bottom line is resolved.  Do people with concealed carry weapons keep them holstered? If so, then what’s the point in having them? Do they propose that cops be required to yell “drop the weapon” before shooting? That doesn’t seem adequate if a gun is pointed at them, as it only takes a fraction of a second for a trigger to be pulled, and somewhere in mid-word the bullet can strike them.

And yet the argument about rights and freedoms can’t be ignored.  There is no right if it can’t be exercised. There is no right if the penalty for exercising it is death.  It strikes me that McCarthy makes a sound point that there will be tragedy stemming from Chicago’s concealed carry law, and yet there will be a different kind of tragedy, the loss of freedom, if people are afraid to exercise their rights.

The bottom line is that no cop will be punished for defending himself at the sight of a gun pointed at him, regardless of whether the person holding that gun does so lawfully.  And no argument to the contrary is going to stop that cop’s bullet.  Ending up dead is no way to celebrate freedom, and there doesn’t appear to be any way to prevent it from happening.

24 thoughts on “A Bullet-Proof Argument

  1. the other rob

    I was once stopped for speeding. Upon handing the officer my driver’s license and concealed handgun license, he asked if I was armed. I replied that I was, indicating (verbally, not by means of gestures that might be misinterpreted) where my guns were and he said “Well, let’s just leave them there.” He then let me off with a warning. That, however, was in the Texas/Oklahoma Panhandle area, where attitudes are somewhat different to those in Chicago.

    I am aware that this anecdote fails to address our host’s question “Do people with concealed carry weapons keep them holstered? If so, then what’s the point in having them?”. Thankfully, I have never had to draw my weapon, but there is an example from a recent case that might prove useful. After using his handgun in self defence, George Zimmerman re holstered it – it was, therefore, not in his hands when the police arrived.

    I would suggest that just as my anecdote reflects the majority of encounters between people with concealed handguns and LEOs, the Zimmerman case reflects the majority of that subset of encounters in which the handgun must be drawn. This leaves a vanishingly small number of encounters in which the initial circumstances posited by McCarthy might come to pass.

    1. SHG Post author

      It appears from the tone of your comment that you already realize that your anecdote does nothing to answer the question. That it won’t arise often is great, but fails to address what happens when it does arise. And that’s the issue.

      1. the other rob

        I do believe that quantifying the likely scale of a problem is a useful precursor to addressing it. If we did more of that, we might not have the TSA.

        That said, you’re quite right – I don’t have an answer, except to wonder whether McCarthy’s words might come back to haunt him in the inevitable civil suit.

        1. SHG Post author

          It’s not clear how experiences elsewhere will play out in a big city like Chicago. It may not scale as one might expect. As for McCarthy’s words, I don’t see how they will hurt him.

  2. bookmoth

    I’m not a lawyer but I’ve done lots of reading and talking to lawyers about self-defense.

    Try Massad Ayoob’s _In the Gravest Extreme_ for advice from a former cop and current firearms instructor. Try _The Law of Self Defense_ by attorney Andrew F. Branca.

    “Do people with concealed carry weapons keep them holstered? If so, then what’s the point in having them? ”

    Licensed CCW holders do carry guns in holsters, for lots of reasons – it keeps the gun where you can reach it easily, it keeps the gun secure and controlled (so it doesn’t fall out or someone else can grab it), it keeps the gun in place so it can be concealed, it’s the most comfortable way to keep a gun close and it protects the gun from damage from sweat, etc. The point of a holster is to keep the gun where you can reach it without having it in your hand. Drawing a gun from a holster, if you are not immediately ready to stop an imminent threat, is foolish or suicidal or assault with a deadly weapon (or all three). Carrying a gun in your hand is probably brandishing or assault with a deadly weapon.

    If a gun is pointed at you, you are probably justified to respond to that as you would to any assault with a deadly weapon. If you see someone holding a gun, though, or wearing on in a holster, you can’t automatically interpret that as an imminent attack and respond accordingly (at least, citizens can’t, if they want to stay out of jail). That makes you the aggressor. You are not responding to a sufficient show of deadly force to justify your own use of deadly force.

    1. SHG Post author

      I realize you’re trying to be helpful, though I am reluctant to let you post the book titles since I haven’t (and would not be inclined to) read them and do not recommend them. Bear in mind this is a law blog, meant for lawyers, and we already have some familiarity with the law. That said, your comment has nothing to do with the issue of the post.

      1. bookmoth

        Then I don’t understand what you’re asking when you ask why have a gun in a holster.

        Sorry about the book titles – I knew you didn’t want links but wasn’t sure about book titles.

        1. SHG Post author

          It’s not the inclusion of book titles that presents a problem, but rather that I don’t know the books and don’t want to give the appearance of recommending them as being accurate or worth reading. I’m not saying they aren’t, but that I don’t know.

          As for your question about the gun in a holster, the point is that a gun may eventually come out of that holster in public. If a someone carries a gun, but won’t unholster it, then it makes no sense to have it at all.

          1. bookmoth

            Got it.

            And I get now what you’re saying about guns in holsters. They aren’t magic talismans that ward away evil.

  3. nidefatt

    Well, this all a little over the top. Idaho has plenty of folks with concealed carry, but more than that, we have a lot of people that just carry, because you don’t need a license to walk around with a gun slung over your shoulder. I once saw a handicapped gentleman cross a busy city street in his wheelchair with what appeared to be an assault rifle hanging on the back. And while we may have police officers occasionally shooting our citizens while they hold knives to their own throats, the actual number of police gunning down innocent people is pretty low. Chicago can look at Houston, too, for an example of not a particularly great police force but one which does not go about gunning down its 2nd amendment loving citizenry.

  4. Chris Ryan

    As a holder of a ccw, I will say that I do not carry but have the permit because I do a lot of hunting out of my home state and rather then risk being jailed over a misunderstanding of how the locals want guns to be transported, the ccw cuts that conversation short.

    My father also has a ccw and he commonly carries a small handgun in a holster. He would tell you that his reason for carrying is because its right and he needs to have a handgun just in case.

    I don’t carry by choice because I tend to agree that carrying just to carry seems like a person trying to prove their manhood. I would not expect an officer to practice restraint if they found a weapon pointed at them, but underwear….

    1. SHG Post author

      Are you asking technically, or whether he would prevail at trial on self-defense? My guess is the answer would be yes and no.

  5. John Burgess

    I think Mr Weyant made a grave error. He should have been wearing officially authorized BOP underwear — briefs or boxers, doesn’t matter. The appearance of Guitar Hero boxers simply confounded the police responding the the call. They were not trained to recognize such as inoffensive and, as we know, the default is “If we don’t know what it is, we assume it is both dangerous and hostile.”

    And now, in addition to the calls from the various police benevolent associations selling car stickers, I can anticipate calls for new underwear. It’s for the children… the cops’ children.

  6. C. N. Nevets

    I need to take police officers out of the equation for a moment to figure out if we’re dealing with a police issue or a firearms issue. If they were two civilians encountering one another and one saw a gun in the other’s hand, with no indication of brandishing per se, would that be legally sufficient cause to draw and shoot?

    If they were two civilians encountering one another and one believed that a firearm were being brandished in his direction, inspiring him to fire in self defense, but it turned out to be underwear, would that legally clear him?

  7. Ken Bellone

    TWhat’s left out is the question of CCW vs. “open carry”. There have been numerous cases where police have drawn their weapons (and even fired upon) people exercising their right to open carry where legal, even when the citizen’s hands were occupied with other objects. ie. carrying groceries. The police routinely state they will “prone-out” anyone they see legally carrying in the interest of “officer safety”. This is humiliating and absolutely unnecessary, provided there have been no attempts at reaching for the firearm. That LE is so very afraid of the citizenry wearing a gun on their hip because is “scares people”, yet expect no reaction to their doing the same because, heck, they wear badges is wrong. If the law permits it, then that’s what they are paid to enforce: the right of the people to do so. If the people vehemently oppose it, I’ve no doubt the law would change quickly.

    That citizens are frequently shot (or at, as marksmanship is generally dismal in the LEO community), for having virtually anything in their hands is disconcerting, to say the least.

    I have no illusions that if a police officer were to fire upon me unjustifiably, and I happened to be legally carrying, drew my firearm and successfully returned fire, I would be justified in my actions, but convicted as a cop killer. That’s the reality of our world and our justice system, where a cop’s word carries more weight than a citizen’s. Take any case where the only two witnesses to an alleged offense: the accused and the LEO. Ideally, innocent until proven guilty beyond a reasonable doubt would demand acquittal, but the public is deemed less trustworthy than LE. Cops are people, prone to lying, cheating on their wives, drinking excessively and even perjuring themselves…just like the rest of humanity. This bias perpetrates and reinforces the “us vs. them” mentality that grows every day. It needs to be defused, before it gets much worse, and despite what people think, it can and will get worse.

    I understand a cops right to life, but their first responsibility is to that of the people, not the reverse. That’s why I sense such a growing resentment against LE. I use the term “citizen” rather than civilian, because as former military, I see cops and people as citizens, not soldiers, sailors, airmen and Marines. The phrase is used to further delineate them from us and it’s not helpful.

    The key difference is pointing vs. simply carrying. Pointing demands a response on the part of LE, carrying demands vigilance and wariness, but also a degree of restraint. That is the part that is missing.

  8. Jim March

    We who legally carry handguns already know that a gun in hand can draw gunfire – from cops or even other legal carriers. That’s not a new issue and trust me, it won’t ever be limited to Chicago. We know that holsters that allow fast RE-holstering with just one hand are a must to get the damn gun back out of the hand ASAP after it’s been drawn but before the cops get there. Doesn’t matter if it’s being carried concealed or open.

    When cops draw on legal open carriers with holstered hardware, that’s a very different issue and in each instance a criminal act by law enforcement – who have no more right to commit violent assault than anybody else.

    Specific to Chicago, the new handgun carry law does NOT specify open or concealed. A plain reading of that law says that with the permit both open and concealed carry will be legal – because open carry isn’t specifically banned. Chicago PD is already sending out memos otherwise. Somebody is going to get a really juicy lawsuit out of that one unless CPD changes court right pronto, because CPD is effectively telling their officers, in writing, to commit violent assault.

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