A guy walks into a bar in San Antonio with a gun strapped to his leg. The start of a funny joke? Nah. The start of a conundrum. The guy has a right to open carry, a fundamental right according to the Supreme Court in Heller and McDonald,* and one that is widely accepted in Texas culture.
What does this mean? It means that it’s a perfectly lawful exercise of constitutional rights, until it’s not. It means that gun guy should not be subject to seizure and interrogation to prove to the satisfaction of police (or anxious observers) that he’s entitled to exercise his constitutional right to bear arms. It means that no one knows, until something bad happens, that the gun guy is a bad dude whose possession of a weapon crosses the line between an exercise of a constitutional right and the commission of a crime. It means that there is a conundrum.
The conundrum was obvious in Dallas.
The state has long been a bastion of pro-gun sentiment and the kind of place where both Democrats and Republicans openly talk about the guns they own and carry, on their person, in their vehicles, at their offices, at their homes and even in the halls of the Texas Capitol.
The issue would be different in, say, New York, where the sight of a gun on anyone but a cop would launch a thousand 911 calls and mass hysteria. New Yorkers do not like guns. But Texans do.
There was someone shooting a rifle at police officers. He crossed the line from exercising a constitutional right to committing murder. No one would dispute the cops’ authority to deal with this.** But in the confusion of a person killing cops, issues arose.
Two men who were armed and a woman who was with them were detained, fueling an early, errant theory by the police that there was more than one gunman.
In addition, the Dallas police put out a twit on social media with the image of a guy carrying a long gun, saying they were seeking him as a suspect in the killings. To their credit, the Dallas cops only detained the “two men who were armed,” as opposed to gunned them down in the street based upon their objectively reasonable fear that, with bullets being shot into cop bodies, their life was perceived to be threatened.
As for the guy whose image appeared on the twitters, and was left up by the Dallas police for nearly a day after they knew he had no involvement in the shooting, he survived by sheer kismet. If it wasn’t a cop who took him out, it could well have been some good Samaritan just doing his part to stop the killing. Fortunately, no one did.
Even more fortunately, people in the crowd with long guns didn’t start shooting at each other, knowing that they weren’t the bad dude but not knowing that the other guy with the long gun wasn’t the bad dude. Then again, they also didn’t shoot the bad dude, so having their own guns in hand didn’t do much to help the situation either.
But it raises a serious question: how do you tell the good gun from the bad one?
Mayor Mike Rawlings of Dallas suggested in an interview on Sunday that, in the wake of the attack, he supported tightening the state’s gun laws to restrict the carrying of rifles and shotguns in public.
“There should be some way to say I shouldn’t be bringing my shotgun to a Mavericks game or to a protest because something crazy should happen,” said Mr. Rawlings, a Democrat. “I just want to come back to common sense.”
Or to a protest? On the streets of Dallas? Obviously, the good old saw, “common sense,” conceals the conundrum. So you have no answers, but there should be something. Damn tootin’, mayor, but what that something is remains a bit of a problem. You’re obviously shooting blanks.
Ironically, the deaths of Alton Sterling and Philando Castile showed two more pieces of this puzzle. Sterling had a gun of his own, but it was an illegal gun. Castile too had a gun, fully legal, and he did what every law-abiding gun possessor is told to do, to inform Officer Jeronimo Yanez that he was lawfully carrying. So Sterling, whose gun remained in his pocket, was killed anyway.
And Castile? According to Yanez’s lawyer, he was killed because the cop “reacted to the gun,” the weasel words of bullshit when what he means to say is his cop panicked and didn’t give a rat’s ass that Castile was exercising his constitutional right. Gun! Scary to cops. Kill! All the nuance and details swept away, and one dead body is left behind.
This isn’t a new theme. Tamir Rice was killed for having a toy gun in his waist in a state where it’s lawful to carry a real gun. You can’t reconcile what happened, which is not to say that it means the cop will pay a price for his kill. But if you’re on the cop side of the equation, see a gun, don’t know whether it’s a good gun or bad gun, the First Rule of Policing kicks in and you kill first because if only one person gets to go home for dinner, the cop wants it to be him.
Is there a principled way to distinguish the good gun from the bad one? Is there a practical way? If it’s a constitutional right, then cops don’t get to challenge a person for exercising it. We have the right to be left alone, to go about our day exercising our rights without being stopped, seized, questioned, challenged. And not being killed for it either. It’s a conundrum.
*Edit: No, Heller and McDonald don’t create a right to open carry. but this is part of the set up to reach the point of the post. I really should have crafted a better set up, but it’s too late now. So give me a break, okay?
**There are myriad questions raised by how they ultimately dealt with this, by robot execution, but that’s not the point of this post and won’t be addressed.
Good gun bad gun? Let me get back to you on that.
“Nuns” have all the fun.
Geesh!
https://pbs.twimg.com/media/CnCesgOXgAATBSr.jpg
I would suggest a simple rule such as we had in Iraq. We were allowed to point a weapon in the direction of a potential threat, but we were not allowed to fire the weapon until we had made positive identification of the threat. This might mean that we had to wait until a weapon was actually being moved to point in our direction, as in the case of a weapon such as the fully automatic assault rifle that every male was allowed to own, or simply identifying a weapon such as an rpg in the hands of a person who was not police or military. All of these studies that talk about how short an amount of time it takes to draw and fire a weapon, ignore that there are two stages. If a police officer has his weapon drawn, it takes a fraction of a second for the officer to actually fire said weapon. At this point the officer has time to make sure that the threat actually exists, and is not some kid putting his hand in his pocket, or some guy reaching for his I.d..
Hate it when you use that word “conundrm”. You know it irks me. You are a mean dude, all hat and no cattle.
You were doing okay up to that last phrase. Then you lost it.
Yea this open carry thing is kind of working out like the Trump thing, not the what folks were counting on. Guess finding out what could go wrong will is becoming an eye opener.
Well, Zanez killed Castile because Castile had a gun, not because he was black. We can all sleep better now knowing that the shooting wasn’t racial.
Yeah, just because the lawyer said so doesn’t make it so, or preclude the alternatives.
I think the difficulty is overstated. You wouldn’t wonder how one could tell the difference between a person beating the tar out of a little old lady and all the other people around him who also have hands and feet. Presumably you’d have no trouble telling the difference between someone going on a stabbing spree through a kindergarten class and someone walking down the street with a Leatherman on his belt. Objects are objects and aggression is aggression, and people don’t usually have serious trouble telling the difference between the two – unless they’ve been specially conditioned to associate one with the other. That would seem to be the case with New York City, and with police in general.
There are an infinite number of quasi-factual scenarios we can invent where it won’t be a problem, which does absolutely nothing to alter the fact that it is a problem or address the problem. This is the palliative position of the willfully ignorant, “let’s look at situations where it isn’t a problem so we can pretend it’s not a problem.” I’m not of the view that being willfully stupid is a useful answer or a good thing.
Where it’s very easy to see the possibility of a random person using that gun to open fire, creating this conundrum, I see stories in which an agent of the state killed someone for holding an object that isn’t merely permissible, but was actually permitted by the state for that individual to carry.
There are hundreds (if not thousands) that choose to carry weapons illegally because the real danger posed to them in their neighborhoods is perceived (or actually might be) greater than the danger of being found with an illegal weapon.
So, yea, while we can come up with quasi-factual scenarios for why carrying around guns is problematic, we can list ad-nauseum the scenarios why people choose to carry them.
I’m far more concerned that this will be handled like most emergency situations, with an eye on the present with no account taken for why the present situation exists at all.
Because frankly, in a society where police as agents of the state are capable of killing you for possessing permitted objects, I’m not sure removing the ability to resist with force will be a long term win. But maybe it will.
Anyway, enough thinking for today – carry on.
I assume, in creating the conundrum, that they’re legal. The problem isn’t counter arguments, but that nobody wants to win the argument from the grave.
The legality certainly creates another layer to the legitimacy of the conundrum. But people respond to incentives whether it’s going to be legal or not and we can certainly see the evidence plain that many people whose day to day existence exposes them to more danger than that of their interactions with police, regularly choose to carry weapons. So, as a purely legislative policy issue, the question becomes whether to bring them into the fold as legal owners or to search for them and deal with them as law breakers.
We’ve seen how stop & frisk worked out. We’ve seen the abysmal rates at which people are registering weapons in CA, NY & CT. So I’d look at the larger scheme as to whether the answer of “doing something” here would actually be beneficial at all. Creating more potential criminals might not be the cool trick we think it is for people more afraid of their neighborhood drug gang, than the gang in blue. You mileage may vary based on location.
I’m not seeing how any of this relates to the conundrum I wrote about.
[Ed. Note: Deleted. I told you last time, use a real email or no comments.]
To their err.. credit Dallas police also arrested a protester wearing a flack jacket and a gas mask who was not armed.
The irony was not lost on me that it was a perfect form of first amendment expression of just how bad things are getting when such casual wear choices are dictated on the oft chance that one might win the lottery of a “police encounter”.
Disclaimer:
I grew up in Texas when the high school parking lot had pickup trucks with long guns resting in rear window gun racks in student vehicles. There were also a lot more cattle and even fewer hats here in the metroplex.
Cool story, bro.
The conundrum is deeper than good gun/bad gun. The conundrum has its roots in the rule of law.
Is every citizen is subject to the same law, including law makers and enforcers? Plainly not. Cops want to be the only ones armed; disarming everyone at a traffic stop, or after a big flood, or in myriad other cases is SOP.
You recently recently wrote “the law prefers the life of a cop over the life of the other guy.” Alton Sterling’s body wasn’t even cold, much less buried, before both Radley Balko and Greg Prickett provided thoughtful arguments as to why the execution was legal.
So the state of the law is that
1) Someone, anyone, without verification, identification, or any consequence for their actions, punches 911 and says the magic word “gun.” Or a cop yells it out, or remembers seeing one, or makes up pretty much any story with the magic word.
2) between the First Rule of Policing, the Objectively Lying Cop Test, the Reasonably Stupid Cop Test, and the Flagrantly Unlawful Police Misconduct Test, police get a free kill. At least 4 bullets, maybe more.
Meanwhile, the supremes are busy creating incentives for cops to stop anyone they want, anytime they want, run the name in the hope of picking up an errant warrant. If they find a gun in the process, or the one being tossed mentions the magic word in hopes of defusing the situation, free kill.
That’s the conudrum. It never gets as far as distinguishing good guns from bad guns. Invoking the magic word is all that is required.
What makes it a conundrum is that the cause of death is the exercise of a constitutional right, the possession of a gun.
Do you read Heller & McDonald as establishing a right to open carry? I don’t. The cases were about ownership in the home. Maybe that will be the natural progression, but I don’t think we’re there yet. Carry laws (whether open or concealed) vary by state and sometimes city because we don’t have a SCOTUS decision on point.
Seems like it’s still a novel question whether cops can seize and detain someone for open carry to check the license (as one is required for handguns, but not long guns, in Texas) regardless of whether there’s a constitutional right to open carry. So the question is whether there’s reasonable suspicion of non-licensure just by seeing the gun? Of course it doesn’t work that way for cars (i.e., just seeing someone driving doesn’t give rise to reasonable suspicion to stop and check for licence). But according to my city’s police department website, they say they can stop an open-handgun-carrier for a license check. So in your example, it’s the department’s position the guy in San Antonio could be seized and interrogated.
No, they don’t establish a right to open carry, but it’s close enough to make the point without getting so tangled in the weeds that the bigger question is obscured by the open carry question.
No guns in bars. It’s a felony.
Bad gun then…
He needed killing.
No, just arresting.
“Why should he be required still to wait an assault and to endure longer haunting and hazard when he might at any moment become the victim of his own forbearance”
What could be more reasonable?
IIUC, that’s a bit of a simplification. Handgun=felony, Long gun=criminal trespass if you don’t leave when the bar owner explains that it’s you taking your gun outside or him losing his license.
Bar owners typically know this, but it’s become increasingly apparent that some (most?) store and restaurant operators still don’t get it. All the news reports I’ve seen about the conundrum facing places like Chipotle are framed as “they have to choose whether to piss off the long gun demonstrators or piss off the peace-niks” while completely ignoring the point that pissing off the long gun folks is the right answer if the establishment wants to continue to sell alcohol.
So the third tranche of guns, those that were being carried by people not cops and not the shooter… what were they?? Good guns? Bad guns? ….or agnostic guns.
Just cool ornaments to show how tough the carriers were, of no use on either side, good or bad? They might have out-numbered the good guns and been the ‘great unwashed’ who don’t take a side.
Carrying a gun may not be of any worth if you are not prepared to use it, especially if it increases the risk of getting shot-by-cop.
I think your conundrum adds an unnecessary layer of complication to a very simple issue: A police officer is a civil servant. We refuse to put up with civil servants such as building inspectors or DMV clerks who kill people needlessly, why are we putting up with police who kill needlessly?
You don’t need to make it complicated. Stop tolerating civil servants who kill citizens when there is no obvious need for self-defense.
We always tolerate bad service from our civil servants. The only reason the DMV clerk doesn’t kill you is because he doesn’t have a gun handy.
Going postal?
The last time I was caught speeding I pulled over and when the nice police officer came up to my window, I handed him my driver’s license and concealed handgun license, just as we were taugh in the CHG course. He asked me if I was packing and I told him I was. He asked me what I carried, and I told him. He asked to see my gun. I let him fondle it for a while. He returned my gun and told me to slow down and to “have a nice day”. This was in the DFW area. Of course, I’m white. Apparently I had a good gun. (Ive had this happen four times in five years). I’ve often wondered what the outcome would have been if I’d been black or Hispanic.
This isn’t an actual standard, so feel free to disregard it. But it seems like public carry of guns is much easier both on civilians and cops when there are good relationships between the cops and the community, and the beat cops have enough local knowledge of their block or district and its denizens that their reactions are informed by more than just: “GUN! GUN! GUNNNNNN!1!111!” Of course, this seems like it’s not easy or even necessarily possible. But reading old-school Queen-And-Country British conservatives like Peter Hitchens has put a few utopian ideas in my head.
It sounds like the ordinary gun-carriers in the crowd at Dallas did exactly the right thing, which is not overreact and do something stupid in a situation where guns were not helpful. You seem inclined to take points off because they “didn’t shoot the bad dude”, but what else could have been asked of them, when it wasn’t the cops’ “good guns” either, but their bomb-toting robot, that killed the “bad dude”? As far as I know, the second amendment doesn’t seem to require the ability to work miracles.
As for this conundrum, it shouldn’t be any more of a conundrum than distinguishing the good car from the bad one that might run someone over, and, while the police often have trouble with that too, particularly when the car is fleeing, they don’t usually shoot preemptively at a traffic stop just because you’re in possession of a potentially deadly car. The only acceptable answer is that the gun is innocent until proven guilty; that people, including cops, have trouble understanding this doesn’t make it a conundrum.
Any chance that you’re going to write about your double asterisk drone-applied lethal force usage?