Simple Solutions to a Complex Crime Problem (concluded)

Studies of the widespread use of stop and frisk in New York conclude that it did little or nothing to decrease crime. Other studies, however, have shown that the practice increased distrust of the police. That is not surprising. In 1968, the Supreme Court held in Terry v. Ohio that a stop and frisk did not violate the Constitution, but the police could only stop someone if they had reasonable suspicion to believe that the person had committed or was about to commit a crime. Almost 700,000 times in one year police in effect maintained that they had such reasonable suspicion to stop someone. It is true that some were charged with an offense as a result of the encounters, but 87% of the time no charges were lodged, and the offenses that were charged were almost always for something minor, usually for possession of a small amount of drugs, most often marijuana. Almost no one was convicted for a violent offense or even a property crime because of widespread stop and frisk. And, of course, the notion that police had a reasonable suspicion that all the people stopped had committed a crime or were about to strains credulity, to put it politely. You can’t have reasonable suspicion that someone has a spliff in the pocket merely by seeing them on the street. As a result of widespread stop and frisk, many concluded that the police were widespread liars.

Even if a person is validly stopped, the Supreme Court standards say that the police may frisk—pat down the outer clothing—only if the officer reasonably believes that the stopped person has a weapon. In my experience in defending such cases, the cop would usually say that he saw a bulge in the clothing that he believed could be a gun. If during that frisk the officer feels something like a weapon, he may then search—reach inside the clothing—for the object. Remember again that only one in a thousand times did the police find a weapon. How often, then, did an officer truly reasonably believe there was a gun? And in all the cases, the person stopped felt violated. Is anyone surprised that widespread stop and frisk produced distrust of the police?

Those who were stopped learned to distrust the police. And who were they? Out of proportion they were young, nonwhite males. Even controlling for estimates for “crime participation” by race, Blacks and Latinos were stopped more than other groups. In one year, the number of stops of 14- to 24-year-old Black men exceeded New York City’s population of young Black men. A wide swath of New Yorkers could not peacefully walk down the street without a fear that they would be physically accosted by men with badges and guns. It is not too harsh to say that New York had a modern version of an antebellum slave patrol.

And yet even though most studies of the stop-and-frisk policies of fifteen years conclude that the practice was ineffective, and even though the practice produced distrust of the police, some want it reinstituted because they fear crime has increased. They want this even though murders and shootings, already low by historical standards, have decreased recently in New York. (Or as I like to put it, murders, which increased during Trump’s presidency, have begun to decline.) As is often the case, fear triumphs over rationality.

The Supreme Court has introduced a new twist for those who want to reinstitute the discredited stop-and-frisk practices. When the policy was widespread, few people in New York could legitimately carry a concealed gun in public, because New York State had strict gun control laws. However, the Supreme Court ruled this year that those laws violated the Second Amendment. New Yorkers, so saith the Supreme Court, have a constitutional right to be armed on Broadway now, and the seizure of those few guns that police found in stop and frisks of the past cannot be so readily seized today.

New Yorkers have always had legitimate concerns about crime. But whatever that concern is or should be, simplistic solutions to crime are almost never the answer.

The Supreme Court’s Sensitive Places

          Lawyers like other people have always had concerns about sensitive places, such as bikini wax zones, Adam’s apples, and bunions. Now, however, they will be litigating about different kinds of “sensitive zones,” for the Supreme Court in its recent gun case has indicated that, although there is a constitutional right to carry firearms in public, their presence can be restricted in “sensitive zones.”

In District of Columbia v. Heller (2008), the Supreme Court recognized (created?) a right that had not been established in the first two centuries of the nation: Ordinary, law-abiding citizen now had the right under the Second Amendment to possess a handgun in the home for self-defense. Last week in New York State Rifle and Pistol Association, Inc. v. Bruen the Court expanded that right to carrying a handgun for self-defense outside the home. The Court found a New York law that required a showing of a special need to pack a pistol in public, whose roots go back to 1905, unconstitutional.

The Court concluded that constitutional rights have the scope they were understood to have when adopted, and that the definition “bear” in the Second Amendment naturally encompasses the right to carry a handgun in public. Therefore, they reasoned, the state must justify any restriction on that presumptive right. The majority emphatically rejected what most lower courts had done when they had considered the interests a gun restriction promotes. Instead, SCOTUS decided that a limitation on carrying can only be constitutionally upheld if it falls within the country’s historical tradition of firearm regulation no matter what good purposes are served by the gun safety measure. So, after reviewing history without considering the benefits the law serves (surprise, surprise), Clarence Thomas, writing for the majority, stated “[W]e conclude that respondents have not met their burden to identify an American tradition justifying the State’s proper-cause requirement.” And so now there is a constitutional right for you to carry a handgun next to me in Times Square. And for me to carry a handgun next to you.

          In the recent Bruen case, however, the Court suggested that there were exceptions to this right. The 2008 Heller decision had discussed longstanding laws forbidding guns in “sensitive places” such as schools and government buildings. Thomas in Bruen stated, “Although the historical record yields relatively few 18th and 19th century ‘sensitive places’ where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions. We therefore can assume it settled that these locations were ‘sensitive places’ where arms carrying could be prohibited consistent with Second Amendment. And courts can use analogies to those historical regulations of ‘sensitive places’ to determine those modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.”

          And, thus, lawyers and others will be occupied with the question of what defines “sensitive places” for Second Amendment purposes. The Court did not attempt any comprehensive definition of “sensitive places,” but it rejected New York’s claim that they include the places where people congregate, and where law enforcement is presumptively available. The streets and parks of your town are not such zones. Apparently, however, schools, government buildings, and polling places are.

          But hold on. The Bruen opinion seemingly relied on a law review article, written by David B. Kopel and Joseph G.S. Greenlee, entitled The “Sensitive Places” Doctrine: Locational Limits on the Right to Bear Arms. In finding that New York’s law was not constitutional, Thomas wrote that the most important history in understanding a right was the history shortly before and after the founding. Kopel and Greenlee’s survey of laws found few restrictions on gun carrying before the Civil War. They found no ban on firearms at legislative assemblies and wrote, “In general, Americans did not seem to mind people coming armed to attend or participate in legislative matters. Congress had no rules against legislative armament, and through the mid-nineteenth century, it was common for Congressmen to be armed.” Delaware in 1776 did prohibit guns at polling places, but the authors found no other such restriction until Reconstruction. One example does not seem like a tradition.

          Only after the Civil War did the country start to have widespread limitations on firearms: “In the half-century following the Civil War, the former slave states were the center of the gun control movement. . . . The racial subtext of Southern gun control was obvious.” Thomas in Bruen, however, stated that the history a hundred years after the founding should not bear much weight in determining our traditions in restricting guns. And yet, some of the “sensitive places” are even much more recent than Reconstruction. For example, “bans on guns in schools are, in most places, of similarly recent vintage. For most of the twentieth century, students brought guns to school. . . . When Antonin Scalia was growing up in New York City in the 1950s, he carried a rifle on the subway on his way to school, for use as a member of his school’s rifle team.” Only in 1980s and 1990s was there a widespread ban on guns at schools. The authors conclude, “Given the relatively thin historical record in support of the sensitive places doctrine, attempts to elaborate and extend the doctrine by analogy may be difficult.”

          By the current Court’s standards, then, the historical tradition of sensitive places where guns can be restricted is, in fact, inconsistent with Thomas’s assertion that we should look primarily to the years immediately before and after the founding.  The Court did not discuss the rationale for re-invoking such a doctrine. If they had, they would have had to recognize that the doctrine is based on reasoning that the Court states could not be used to justify the New York law. Kopel and Greenlee state that an 1874 Georgia Supreme Court ruling that upheld a law banning the carrying of weapons into a courthouse employed the first sensitive places analysis. That court stated that access to a court is “just as sacred as the right to carry arms” and armed people at courthouses deny free access to the courts. In other words, safety and court access outweighed the right to carry arms.  Bruen , however, explicitly rejected safety concerns in considering whether New York’s law was valid.

          Using Bruen’s own historical analysis, then, there is little basis for the sensitive places doctrine. Moreover, the doctrine is based on reasoning that the Court rejects. But still the Court seems committed to preserving and perhaps extending “sensitive places.” Why? I, like many others, thought in 2008 that the Supreme Court in Heller would expand gun rights, but I was also confident that the new right would not extend to carrying guns into the Supreme Court building itself. And I am not surprised that Bruen will not allow the carrying of handguns there either. The Court may not weigh your safety or mine when the right to carry is considered, but the Supreme Court justices want to make sure that their own safety outweighs what they claim are Second Amendment rights.

Gun Violence/Gun Safety (concluded)

          Even if we knew more about the warning signs for shootings, authorities can only take action if they are legally authorized to do so. That is where red flag laws (they go by different names in different places) come into play. These provisions allow police, family members, and others to petition a court to order the temporary removal of firearms from people whose behavior and statements indicate they present a danger to others or themselves. Although opinion polls indicate strong support for such laws, only about a dozen states have them. Perhaps surprisingly, Florida is one of them. Not surprisingly, the National Rifle Association has opposed such laws as an infringement of the Second Amendment, although I am aware of no court agreeing with them.

In a sensible world–unlike the U.S.–all would be trying to figure out the best possible red flag laws. The details of such provisions do matter, such as the standard of proof and the duration of the firearms’ removal. We should be studying the red flag laws that exist to see what insights they offer for future or amended laws, and we would also be seeing what we can learn from orders of protection in domestic disputes, which bear many similarities to red flag laws.

          Studies have shown that red flag laws have a positive effect on gun violence especially when it comes to suicides, but this aspect of the laws is important. The largest number of deaths by guns is not from mass shootings, other homicides, accidents, and certainly not from self-defense; they are from suicides. Red flag laws do not prevent all suicides or even most of them. Nevertheless, we should understand that no single reform can be expected to have a huge effect. Instead, we need many reforms each bringing an incremental decline in gun violence.

          Red flag laws highlight how much more we need to know about gun violence and gun safety. We are far behind where we could be in our knowledge because of the Dickey Amendment. A study funded by the Centers for Disease Control published in the early 1990s found that having a gun in the home was correlated with an increased risk of homicide. Those conclusions, of course, undermined the NRA message and the conclusion of the Supreme Court that guns are needed for protection and the defense of liberty. In response to that study, the NRA pushed what became known as the Dickey Amendment. Passed by Congress in 1996, it stated that CDC funds available for “injury prevention and control” could not be used “to advocate or promote gun control.” Of course, while the offending study may have led reasonable people to think about gun control, the study did not advocate it. Even so, Congress not only passed the Dickey Amendment, it also reduced the CDC budget by the exact amount that the guns-in-the-home study had cost. The message became clear: no studies of guns by federal agencies if the agencies did not want their budgets slashed by Congress. (The Dickey Amendment was expanded to other government funding agencies in 2012.) However, in 2018, Congress accepted the interpretation of the Dickey Amendment by a Health and Human Services secretary; it voted to allow the government to fund and conduct research into gun violence that does not specifically advocate for gun control. The government now funds some of that research, but only at modest levels. Of course, in a sensible government, this research would have a high priority. The first defense of weak minds is to remain ignorant, and that has been the official stance of our government about gun violence. Perhaps that can be changed, but I am willing to bet few conservatives will stand against ignorance.

          Many of our politicians have lived in fear of the NRA. For example, the Colorado legislature a while ago passed gun safety measures. The NRA went to work and got recall elections against some of the supporters of the legislation. Stories like that scare politicians about the consequences of opposing the NRA. Even if the power of the NRA is waning because of its internal problems, many politicians pledge fealty to the Second Amendment and are concerned that they could lose in a primary to someone who is even more opposed to gun safety.

          The fear of that power needs to be broken if we are ever to advance towards sensible gun measures. Here’s my suggestion: Gun safety organizations should identify five or six legislative districts in each state that might be swing districts where the incumbent unthinkingly follows the NRA line. Time, money, and effort should be concentrated by the reformers on these relatively small number of elections. Gun safety advocates would not have to win all these elections to have an impact. If thirty or forty state legislative incumbents around the country lost their positions at least partly because they were allied with the NRA, the NRA would start to look less invincible. Only when legislators begin to think that they could lose their seats because of their opposition to gun safety measures supported by most American will the NRA’s hold on this country start to weaken.

          Mass shootings are (generally mistakenly) seen as an opportunity for gun safety reform, but there are other possibilities. As I have been working on this post, a man was arrested near the home of Supreme Court Justice Brett Kavanaugh. He was exercising what many would see as his Second Amendment right to carry a pistol, but when he saw federal marshals outside the Justice’s house, he called a Maryland county emergency number and said that he was having suicidal thoughts, planned to kill a Justice, and had a firearm in his suitcase. While he was still on the phone, the police arrived and arrested him.

          This is, of course, akin to a red flag situation and highlights the need for such laws.

          Republican Maryland Governor Larry Hogan said about the incident: “I call on leaders in both parties in Washington to strongly condemn these actions. It is vital to our constitutional system that the justices be able to carry out their duties without fear of violence against them and their families.”

          Of course, but it also should be vital to our society that schoolchildren, worshippers, shoppers, subway riders–all of us–be able to go about our lives without fear of violence against ourselves or our families. Condemning such potential violence is easy. Taking steps to try to prevent more of it seems to be beyond the ability of our elected representatives.

Gun Violence/Gun Safety

          The term “gun violence” misleads. There is not a single violence problem; there are several. Gun violence includes mass shootings, but the term should also refer to suicide by firearms, which takes more lives than homicides in this country. Urban shootings are also part of the violence as are family killings. It is important to recognize the different problems because the motivations for them vary. Important, too, to understand that different firearms are involved in the different settings. Because there are different problems, there can be no one solution or even one palliative for “gun violence.” We can, however, hope to have reforms that serve to decrease violence in a particular area. With enough incremental reforms a significant dent can be made in our national shame.

          A discussion of gun violence should recognize that there is a constitutional right “to keep and bear arms.”  The goal for those wishing to decrease gun violence should be to make it more likely guns are used safely rather than to take guns away from responsible people. A recent column by Nicholas Kristoff offers many sensible proposals. Opinion | These Gun Reforms Could Save 15,000 Lives. We Can Achieve Them. – The New York Times ( None of these possibilities is “the solution” to gun violence—there is no such thing. However, incremental improvements in gun safety can add up to a real difference. Increasing the age to buy assault rifles will not by itself make a huge difference in gun violence, but it may lessen gun deaths and injuries a little. Requiring all who buy guns to have background checks will not make a huge difference, but perhaps things will improve somewhat. Better  reporting of felony and domestic violence convictions will not make a huge difference, but it might help some. Limiting the size of magazines will not make a large difference, but perhaps some lives will be saved. If we make enough little changes, we might end up strides ahead of where we are now.

          Here’s my suggestion for an incremental improvement: Make it a crime to carry a gun while intoxicated. Of course, carrying a gun is not the same as using it, but even carrying one while drunk should be prohibited because the decision whether to use a carried firearm should not be made when a person is intoxicated. The consequences should be similar to drunken driving. Perhaps a first conviction would be a misdemeanor, but just as driving licenses are suspended for a period for a DUI, the right to possess guns would be suspended for a period, and all guns owned by the offender placed in police custody during that time. A second conviction would be a felony, and the person could no longer possess guns. . . and might even go to jail.

          Frequently after a car mishap, the driver gets tested for intoxication. The same should happen after gun accidents. Each year at least a few people are hurt or killed in hunting accidents when there has been too much drinking, and perhaps that problem can be lessened.

          Those who favor the status quo on gun violence often proclaim that new gun safety measures will not accomplish anything. Sometimes this is an act of misdirection. They might say, for example, that age restrictions on the purchase of an AR-15 will do little about urban gun violence because assault weapons are hardly ever the firearms used on city streets. The response should be–once again–that there is no single solution to gun violence, but that the different components of gun violence must be addressed in different ways to make incremental increases in safety in all the areas.

          Gun safety advocates need to shape the debate on the effectiveness of reform. Part of it might be mockery. Those of us who regularly read The Onion are familiar with its headline: “‘No Way to Prevent This,’ Says Only Nation Where It Regularly Happens.” But more data-driven responses should also be regularly presented, such as was done in the New York Times recently. The study indicated that up to a third of mass shootings might not have happened or could have been less deadly if simple reforms had been in place—such as universal background checks, no extended magazines, and no sale of guns, or at least assault weapons, to those under twenty-one. None of these would have removed guns from responsible people.

          A few days after a mass shooting, a story often appears telling us about the “warning signs” exhibited by the shooter missed by the “authorities” implying that the shooting could have, or perhaps should have, been prevented. In considering the “warning signs,” however, there is a hindsight bias. We know that the shooter has slaughtered many people, and that makes the missed warning signs seem especially egregious. But we need to evaluate “warning signs” before the violence, not after. Many people engage in the behavior that are called warning signs after a mass shooting and almost none of them become murderers. . We need to find the predicters of future gun violence. How often are the signs accurate? How often do they produce false positives? What are the responses that lessen the possibility of future violence? How often are such warning signs reported to law enforcement or other agencies? What resources does it take to respond? Where do the resources come from? What responses will politicians legally authorize? We need to know more.

(concluded June 10)