Guns – Page 41 – Shall Not Be Questioned

Using Castile Case to Hawk Carry Guard? Are You Kidding Me?

NRA breaks its silence on the Philando Castile case:

Do I believe that Philando Castile deserved to lose his life over his [traffic] stop? I absolutely do not. I also think that this is why we have things like NRA Carry Guard, not only to reach out to the citizens to go over what to do during stops like this, but also to work with law enforcement so that they understand what citizens are experiencing when they go through stops like this.

I guess all things are taking a back seat to what’s really important: signing people up for Carry Guard. Radley Balko has an article in the Washington Post: “How the NRAâ€™s allegiance to cops undermines its credibility on gun rights.”

A law-abiding gun owner was shot and killed by a cop after doing everything he was supposed to do. It then took more than a year for anyone from the nationâ€™s largest gun rights organization to comment, and when she did, she offered aÂ vague, heavily qualified, quasi-criticism of the cop while implying not only thatÂ Castile contributed to hisÂ death but also that he might be alive if only he were carrying an NRA Carry Guard card.

Actually, Castile did a number of things that you should never do in a stop, but in my opinion the officer did not handle the situation well either. More training on both sides of a stop is a valid answer, but I really don’t like using this to hawk Carry Guard.

Where I really part with Balko is that I don’t want the NRA taking sides on the militarization of police any more than I want them to be militantly pro-police for the sake of taking sides a culture war that has nothing to do with gun rights. NRA has fostered police involvement for years through it’s LE program, and I’m fine with that. That’s part of NRA’s mission.

But I’ll be bluntly honest, I’m not happy where NRA’s PR firm, and Dana Loesch in particular, seem to be taking the organization.

The NICS Figures for June

What I think the June NICS figures boil down to is that there will never again be a better driver for gun sales than the Obama Administration alongside the “inevitability” of a Hillary Administration.

But the repeated media stories about an utter collapse in gun sales don’t appear to be true. We’re still nearly double what we were when Obama took office. Will it continue to drop? Time will tell, but I think as long as we live in uncertain times, sales will remain above historical levels.

Bucking Precedent

While I was taking a break over the week of the 4th of July holiday, a ruling was handed down by a federal court in California enjoining the state from carrying out its confiscation of standard capacity magazines. Dave Kopel’s article about the case is the best I’ve seen, so read the whole thing.

The court ruled that the Second Amendment was implicated in the magazine ban and such a ban failed intermediate scrutiny. To me this should trigger strict scrutiny, but intermediate scrutiny, prior to Second Amendment law, was still a pretty high standards if Courts actually applied it. The problem with what the lower courts have done is they’ve taken to just reclassifying rational basis review as some higher level of scrutiny, and so far SCOTUS has allowed them to get away with it.

The court here also ruled that the taking was an issue, that essentially the state can’t confiscate property without fair compensation.

It will take courts willing to buck precedent in the future if the makeup of SCOTUS improves, so that we can move cases forward. There are judges out there that think what the lower courts have done with Second Amendment law is wrong and are willing to help us address that. It should be noted that Judge Benitez, who wrote the opinion in this case, was appointed by George W. Bush. It is possible for us to improve our lot even with very imperfect presidents in the White House.

Good News in Pennsylvania

The Pennsylvania Supreme Court has denied appeal on FOAC et al. v. Lower Merion Township, basically upholding the ruling in Commonwealth Court that their ordinance banning firearms and discharge in township parks was illegal.

Our current preemption law usually works when we can take these ordinances to court, but getting them there is difficult.

Also from Josh Prince: “It is time for the citizens of Pennsylvania to stop paying millions of dollars, each year, for a broken and duplicative system, when the FBI offer NICS to us for free.” PICS is awful. At some point I’d like to see a bill in Congress to eliminate POC states. That way there’s only one entity to keep an eye on. POC state agencies have gotten away with a lot worse malfeasance than the FBI, and the FBI does a much better job with uptime on NICS than the PSP does with PICS, which is very outage prone for as much as it’s costing taxpayers.

Weekly Gun News – Edition 61

It’s been a few weeks since I did a gun news post. Weekly is just an indicator that it’s not monthly. It doesn’t mean I have to do one every week, right? Unfortunately I got a call from my cousin informing me that my Uncle had passed away quite unexpectedly during the night. In truth I was raised calling them Aunt and Uncle but they are not blood relations. He was my dad’s best friend from childhood. But other than my own father, he probably had more impact on who I am today than any other male figure in my life. I did not grow up in a gun owning family. He is the reason I took up shooting and the gun rights cause. If he had not been the influence on my life that he was, none of you would be reading this blog. So things might be a bit scarce this week.

Police departments can either pay for their officers to have decent training, or they can pay that money out in settlements.

Cert has been denied in the case of Sessions v. Binderup, which leaves the 3rd circuit decision standing.

I have to agree with Miguel on this one… Everytown is reaching. NRA doesn’t comment on a lot of things, and they aren’t obligated to respond to every single person who is ever shot. I do think NRA missed an opportunity to show they don’t just care about OFWGs, but this is ridiculous. Somehow I believe Shannon Watts is behind this one.

Looks like CNMI is looking to reinstate its handgun ban, despite Heller. And why not? Heller has been effectively rendered meaningless by the lower courts.

Some sneakiness going on in Indiana. Seems you can’t carry in buildings with courtrooms in them, so some local communities are claiming there are court rooms in municipal buildings.

John Feinblatt of Everytown: “In the wake of Scalise shooting, gun control couldn’t be more urgent.”

Over at Reason: “Why Did a Conservative Judge Uphold an Assault Weapons Ban?” Judicial minimalism are judges abrogating their responsibility to the Constitution and the people. It forwards this silly notion that the silly people we elect and send to Washington somehow so represent that who needs any kind of pesky constitution? It’s time for the dinosaurs who practice this travesty retire from the court.

There are a lot of things about this NRA Carry Guard offering that seem poorly considered.

WaPo: “These GOP lawmakers are pushing for more gun rights after baseball shooting”

Delaware has been living on borrowed time for a while. But probably not as much borrowed time as New Jersey if it gets a Dem governor in 2018. You can definitely forget about pardons if that happens.

On the other hand, this proposal in Delaware seems worthwhile, even if it falls short of actual shall-issue.

Dave Kopel: “Bad police training may have killed Philando Castile.”

More Dave Kopel: “The Hearing Protection Act and ‘silencers’”

Training Scars: Brass in Pockets.

NJ Supreme Court says you can answer the door with a defensive weapon. More here.

Well, well. It looks like Shannon Watts might be running for office after all. I didn’t know Polis had ambitions to be Governor. She better be better at campaigning than she is at running MDA if she wants to have a shot.

Concealed Carry as a Martial Art.

Cert Denied in Peruta v. California

The Supreme Court will not hear Peruta. It looks like Thomas and Gorsuch dissented from the cert denial, signaling that Gorsuch is willing to take the torch from the late Justice Scalia when it comes to Second Amendment issues. From the dissent, written by Justice Thomas:

Had the en banc Ninth Circuit answered the question actually at issue in this case, it likely would have been compelled to reach the opposite result. This Court has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion. As we explained in Heller, to â€œbear armsâ€ means to â€œwear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offenÂ sive or defensive action in a case of conflict with another person.â€

For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiÂ quated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. I respectfully dissent.

Also, some tea leaf reading: if Kennedy retires this summer, as is rumored, if you ask me it’s a strong signal that he’s not the weak link in the Heller majority. The case would be heard before whatever justice replaces him, which given Trump’s short list, is liable to be good on the issue. I’ve long argued that I believe Roberts’ judicial minimalism is the issue we’re up against, and not Kennedy’s tendency to switch hit. Though, it could be a combination of both.

What we do know is that Thomas, Alito, and now Gorsuch have written or joined forceful dissents of the Supreme Court abrogating its responsibility to the Second Amendment. That’s three solid votes. Unfortunately, we need five solid votes to move the ball forward.

No One Should Have to Own Crazies

I for one am glad that Ladd Everitt, formerly of the Coalition to Stop Gun Violence, and now working for George Takei’s new gun control effort, has decided to start a column at Medium.com. His latest piece contains some glorious schadenfreude, into which I shall delve.

First, credit where credit is due: Ladd Everitt is at least trying to own up to the political violence on the left just like he’s demanded Second Amendment advocates own practically every act of political violence that’s come along since… well… as long as I can remember. I’ll give him points for being consistent. But maybe the issue is that he’s just wrong, and that it’s fundamentally unfair to blame the actions of kooks and whack jobs on people who are in no way, shape or form responsible for their actions.

Hodgkinson didnâ€™t come to his violent anti-government extremism by way of right-wing politics (as is common with mass shooters). Hodgkinson was a Bernie Sanders volunteer. He loved Rachel Maddow. He couldnâ€™t stand Karen Handel. He said things like, â€œI have never said â€˜life sucks,â€™ only the policies of the Republicans.â€

You can’t get away from it, can you Ladd? You have to tie the nuts to your opponents, don’t you? Jared Loughner thought that the US government was using grammar to control our minds. Loughner wasn’t on the left or right spectrum: he was a paranoid schizophrenic, who, like many mentally ill people, slipped through the cracks of the system and was never put “into the system” until after he committed an act of violence.

The Pulse shooter? In his mind, at least,Â on a revenge mission for ISIS. The San Bernardino shooters? Same deal. The Charleston Church Shooting? I’m pretty sure everyone was uniformly disgusted by his actions, and I’m pretty sure no one in the mainstream conservative movement advocates or condones that kind of racial violence.

Ladd, you don’t own Hodgkinson any more than I own Roof or Loughner. Neither does Bernie Sanders own Hodgkinson. And you know what? Sarah Palin has never owned Loughner either. Maybe your insufferable insistence on spouting this kind of nonsense is why no one is listening to you.

If there are some on the left who have bought into the NRAâ€™s perverse â€œInsurrectionist Ideaâ€ regarding the citizen / state relationship, make your voices heard now. Suggestions that the solution to our political problems can be found at the end of a gun barrel must no longer be might with silence by progressives. Itâ€™s time for a robust debate about the civic health of our democracy.

No Ladd, they’ve bought into the caricature that exists in your head. This “Insurrectionist Idea” has always been a straw man bandied about by your former boss. The “Insurrectionist Idea” you imagine is not part of nor has it ever been part of any mainstream conservative or libertarian thought.

This might be a shock to you Ladd, but I too an concerned about this country’s apparent descent into the type of madness we’ve been seeing. I’m also concerned about the nastiness, the factionalism, the anger, divisiveness and thoughtlessness we’re seeing today. I don’t want to see this descend into pitched street battles or even worse any more than you do. But the solution is not, and has never been, to disarm people who scare us. A disarmed populace is going to be more easily bullied by extremists factions than a confident and armed population. Think Weimar Germany.

Revolution or “insurrection” is not a mechanism for settling differences over health care, welfare policy, immigration, or any number issues that bedevil us today. We’ve never believed that. To quote Judge Kozinki’s dissent in the Silveira case:

The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failedâ€”where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

That’s what most of us believe, Ladd. We don’t think it’s OK to start shooting elected officials because an election didn’t go our way. Neither did another group of people who actually used this “Doomsday Provision”:

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

This is what we believe. Maybe it’s true that some disturbed people don’t get the details right, but we don’t own those people. Neither of us do.

Final Thoughts on the Castile Case

I think whether or not a person cares about an injustice depends on whether they can see themselves in the shoes of the victim. That’s why it’s hard to make systematic change. People don’t tend to care about injustices they can’t ever see happening to them.

In this case, I think the answer is an unqualified yes that for just about all of us, we can see ourselves getting burned in a situation like this. Police training on how to deal with armed citizens has been a drum we’ve been collectively beating for a while, and the Castile shooting is a prime example of a department that isn’t offering proper training to its officers. I’ve seen on other forums people pointing out in the dash cam video: “Watch the action of his partner on the far right of the screen. That’s not the kind of behavior you’d expect from a backup officer when shots are being fired.”

This all jibes with what Prof. Joe Olsen, who lives in Minnesota, mentioned when this all first came to light in the media: the department in question would seem to have serious training issues. Here is the basic issue, from my point of view:

Mr. Castile informed Officer Yanez that he was armed. At this point, he should have been reading the “not a cop killer” signals loud and clear, since cop killers don’t tend to inform the officer they intend to shoot that they have a gun before they shoot them. Philando Castile was signaling “I’m one of the good guys,” by informing Officer Yanez he was armed.
Officer Yanez claims that Mr. Castile then reached for the gun. The girlfriend disputes this. Perhaps he could have been reaching for his wallet to show his license to carry. It looked to me in the dash video he already had some documentation out. If Castile did make a move for something without instruction, this was his mistake. But because of item one, it did not need to be a fatal mistake. The Officer overreacted.
Our legal system is set up to create a high burden for prosecutors. The burden the state bears is “beyond a reasonable doubt.” This means that the prosecution has to disprove a claim of self-defense beyond a reasonable doubt. Absent any other evidence, I believed this case was going to end in acquittal, unless there was some evidence that was not released to the public that showed Castile didn’t make any kind of sudden or “furtive movement.” It is also a fact, perhaps an unfortunate fact but a fact nonetheless, that police are afforded a lot more leeway for reasonableness by juries than you or I would.
Like Colion Noir, I don’t think Officer Yanez woke up that day hoping he’d have the opportunity to shoot a young black man. I don’t have any evidence he is racist one way or the other. I believe the proximate cause here is a lack of training on dealing with legally armed civilians. Do I think race played a role? Yes. I believe cops are going to be biased towards a certain way of thinking and acting when dealing with young black men. To argue that police don’t profile is foolish. That would be to assume they are machines rather than flawed people with biases. But the way that is overcome is training.

Finally, is the NRA wrong not saying much? Now that the jury verdict is in, no. I’m not big on second guessing juries, and so I can’t blame anyone else for not doing so. But I think they should have been out there talking about the case and expressing concern a lot more often and loudly than they were. The Castile case was talked about in the NRA Legal Seminar, but NRA certainly wasn’t out there talking about it much in public.Â It’s possible to have a discussion while still being respectful to the justice system and to the millions of police officers out there who know how to handle armed citizens.

The fact is that NRA needs to diversify its membership. It needs to attract young people. So it should be talking about these issues. While people with law enforcement and military backgrounds will probably always remain heavily represented among NRA’s membership, if the Association is to have a future, that future is going to look a like more Colion Noir, and a lot less like Ted Nugent’s fan base. By NRA’s silence, they’ve given the media and their opposition a great example to show the people NRA needs to attract that “Those NRA people don’t care about people like me.”

Finally, I want to end with this video by Massad Ayoob and Tom Gresham:

UPDATE: I’m also adding this multi-part Twitter rant by Julian Sanchez, because it’s brilliant.

An Open Letter From Colion Noir

I offer without commentary:

In The case of officer Jeronimo Yanez, I donâ€™t feel he woke up that day wanting to shoot a black person. However, I keep asking myself, would he have done the same thing if Philando were white? As I put on my Monday morning quarterback Jersey, it is my opinion that Philando Castile should be alive today. I believe there was a better way to handle the initial stop. If he suspected Philando was a suspect in a robbery, there were ways to conduct that stop in a way that would have completely avoided the shooting altogether, but Yanez neglected to do so.

Read the whole thing.

How Not to Get Shot in a Traffic Stop

I’ve heard a lot of advice over the years, but if you ask me, the following things make the most sense:

Don’t tell the officer you’re armed unless you’re in a state where you’re legally required to. This goes against the advice of a lot of trainers (who tend to be former cops and who also tend to know how to deal with armed civilians). Not every cop who pulls you over will be Massad Ayoob. Don’t talk about it, and definitely don’t touch it. The only negative encounter I’ve had in a stop has been in Texas, where I was legally required to inform. In all other cases, I’ve kept my mouth shut and things went smoothly.
Note that the first bit of advice will only work if you’re not likely to be searched. That’s most of us, but not all of us. If you live in a “duty to notify state” or you fit the profile for being highly likely to be searched, you’ll need to inform the officer.Â When you inform the officer, don’t even think about uttering the word “gun.” If an officer hears that word, and misses some context, there can easily be an overreaction. I’ve heard this advice from Massad Ayoob at NRA’s legal seminar, and I like it. Turn your license to carry over with your driver’s license and inform the officer you are carrying, where the firearm is, keep your hands on the steering wheel, and ask him what he would like you to do.
Do not, under any circumstance, make any sudden move once the cop knows you’re armed. Don’t reach for your wallet unless the officer knows what you’re going to do and OKs it. Don’t reach for anything. Don’t do anything without the officer giving you the OK. Don’t even itch your nose. Some cops will want to disarm you. Others will just tell you to sit tight and keep it holstered.

In my case in my Texas stop where I had to inform, the cop asked me to unload and make clear, then took the firearm. I was glad he had me do it. One of my fears with “duty to inform” is having a cop relieve me of a firearm who does not have good trigger discipline. That’s a big reason I’m a proponent of the first item: keep your mouth shut if you legally can and you’re not likely to be searched.

I’d rather deal with the fallout from “Officer, I will comply with your order to get out of the vehicle but I need to inform you that I have a license to carry and I am carrying. Please tell me what you want me to to do,” than to risk being the next Philando Castile.

The dash cam video in the Castile case is now public. If you carry a firearm legally, you should watch this:

The officer claimed he reached for the weapon. I shared Bob Owen’s belief on this:

While I have strong doubts about the validity of Yanezâ€™s claims that he thought Castile was reaching for a gun, how do prosecutors prove beyond a reasonable doubt that Yanezâ€™s response to that perceived threat was both unreasonable and criminal?

A jury found the claim reasonable, or at least credible enough to support the Officer Yanez’s self-defense claim. I was not on the jury, and I did not follow the trial closely. If someone did, feel free to chime in if you have information I don’t.

But if you inform an officer that you’re armed, and then move for the gun, or move for your wallet or something else, even if your intention is to hand it over to the officer, you’re running a very very severe risk of being shot. Once you inform, and you should have your hands in plain view on the wheel when you do, do not do anything that the officer does not first order you to do.

UPDATE: I should mention, though it won’t help you avoid being shot, is recording your encounter. If Castile’s girlfriend were recording the whole encounter, and not just after the shooting, it could have changed the entire dynamic as to whether the officer’s actions were reasonable.