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| Christopher Wright Durocher |
In New York State Rifle & Pistol Association Inc. v. Corlett, the court will decide whether New York state violated the petitioners' Second Amendment rights when it denied their applications for concealed-carry licenses. While seemingly unrelated, a decision by the court that weakens gun regulations could mix with the court's existing precedents regarding police use of force to form a particularly lethal cocktail for police violence against Black people.
Three decades ago, in the 1989 case of Graham v. Connor, the Supreme Court articulated a constitutional standard for police use of force, including deadly force, based on "the perspective of a reasonable officer on the scene" and taking into account "that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving."[2]
The standard laid out by the court has proven overly permissive, giving police officers the benefit of the doubt even when the force used was clearly excessive based on an objective evaluation of events.
In 2020, the majority of fatal police shootings started off with officers responding to nonviolent crimes, traffic violations or no suspected crime at all, but the police disproportionately interpret these encounters with people of color as dangerous, particularly when officers perceive a gun to be present.[3]
The Supreme Court's use-of-force standard means that officers seldom face repercussions when they shoot or otherwise harm someone they correctly or incorrectly believe are armed. The prevalence of guns — and there are more guns than people in the U.S.[4] — and general weakness of gun regulations in America, combined with this permissive standard, help to fuel the epidemic of police violence in the U.S., and Black Americans pay the heaviest price.
If the court loosens or eliminates what few gun restrictions exist in this country, the result is likely to be more guns carried in public — or at least the perception that more guns are being carried in public. Regardless of who actually carries them, this perception risks compounding the more nefarious impression by police officers that people of color are likely to be armed. Given the court's deference to officers, the actual question of whether a person of color is armed matters less than whether the officers perceived them to be.[5]
In Virginia last month, a sheriff's deputy shot and critically injured Isaiah Brown, a Black man, when he mistook Brown's cellphone for a gun after Brown called 911 about a domestic disturbance.[6]
In March, a Chicago police officer shot and killed 13-year-old Adam Toledo, who was Latino, moments after he had allegedly discarded an unloaded handgun and raised his hands.
In 2016, Philando Castile was murdered during a traffic stop because he informed a police officer that he had a concealed-carry permit and was, in fact, lawfully carrying a firearm.
Two years earlier, 12-year-old Tamir Rice was gunned down by police seconds after they arrived at the park where Rice was playing with a toy gun, despite the fact that the person who called 911 described the gun as "probably fake."
For every person whose name we know and say, there are so many more whose names go unsaid because their death at the hands of police was not captured by video.
They are all victims of this toxic stew that combines the prevalence of guns in this country and resulting impression that police are in regular fear for their lives, the systemic racism that characterizes people of color as inherently violent and dangerous, and the authority granted to police to shoot first and ask questions later.[7] As one officer interviewed for a 2020 study by professor Michael Sierra-Arévalo about how police officers perceive the dangers of policing in American cities put it, "We train to expect someone to have a gun, to try and hurt us."[8]
Though we do not know what the consequences might be for the officers who shot Brown and Toledo, we do know that a jury acquitted Castile's killer and a grand jury refused to even indict Rice's killer. This is not unique.
Out of roughly 15,000 police shootings over the course of a decade and a half, only 104 police officers were arrested for murder or manslaughter, and far fewer have been tried and convicted.[9] And this is prior to the Supreme Court's decision in the pending case — while existing gun restrictions are still in place.
Meanwhile, Kyle Rittenhouse, a white man, was able to walk by police officers last summer in Kenosha, Wisconsin, unmolested with his murder weapon in hand before killing two people and injuring a third with an AR-15-style assault weapon. Robert Long, the perpetrator of the March anti-Asian mass shootings in Atlanta that killed eight people, was taken safely into custody after being given 30 to 45 seconds to comply with officers' commands to put his hands up while still in his car.[10]
This disparity in police response is the practical effect of the Supreme Court's deference to "split-second decisions" by officers — white people have an inalienable right to be armed and are often given the benefit of the doubt, while people of color risk death by police if they have a gun, even legally, or are even thought to have gun.
A decision by the Supreme Court that would lift existing restrictions or licensing requirements for publicly carrying handguns will only exacerbate this dynamic wherein police disproportionately perceive people of color to be armed.
A 2017 study published in the American Journal of Public Health found that states with the weakest gun regulations had twice the rate of fatal shootings by police than states with the strongest laws.[11] Weakening gun laws across the country will only make police more likely to perceive a person of color to have a gun — whether they do or do not.
Moreover, if past is prologue, we are likely to see a stark distinction between how law enforcement responds to people of color lawfully carrying a gun and a white person doing the same, with the lethality rate far higher for the former.
While handgun restrictions are not sufficient to address our gun violence or police violence epidemics, lifting them risks making both worse.
To address police violence, the court should find an opportunity to reassess its use-of-force precedent, given the evidence of the current standard's failure to protect people, particularly people of color, from unnecessary police violence. And while it may seem unrelated, to address police violence, the court should also allow cities and states to continue to regulate handguns in public.
Police violence is gun violence. No single decision by the Supreme Court can change that fact, but it is within the court's power to make the problem either marginally better or much, much worse.
Christopher Wright Durocher is senior director of policy and program at the American Constitution Society.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.scotusblog.com/2021/04/court-to-take-up-major-gun-rights-case/.
[2] https://supreme.justia.com/cases/federal/us/490/386/#396.
[3] https://policeviolencereport.org/.
[4] http://www.smallarmssurvey.org/fileadmin/docs/T-Briefing-Papers/SAS-BP-Civilian-Firearms-Numbers.pdf.
[5] https://academic.oup.com/socpro/article/67/3/399/5545183.
[6] https://www.cnn.com/2021/04/24/us/virginia-deputy-shooting-isaiah-brown/index.html.
[7] https://academic.oup.com/socpro/article/67/3/399/5545183.
[8] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2864104.
[9] https://www.bgsu.edu/content/dam/BGSU/health-and-human-services/document/Criminal-Justice-Program/policeintegritylostresearch/-9-On-Duty-Shootings-Police-Officers-Charged-with-Murder-or-Manslaughter.pdf.
[10] https://www.11alive.com/article/news/crime/sheriff-troopers-describe-steps-they-took-to-arrest-spa-shooting-suspect/85-3845f294-038f-48c1-9cf8-67cdc72f10f6.
[11] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5463213/.