How a major Supreme Court case is changing how police do their jobs
Vox Members got to read this story first. Support independent journalism and get exclusive access to stories like this by becoming a Vox Member today.Two and a half years ago, the Supreme Court handed down a decision that experts said would upend Americas gun laws. On the surface, New York State Rifle & Pistol Association, Inc. v. Bruen centered on how New York issued permits to people who wanted to carry their guns in public. The Court said that the states practice of issuing concealed carry permits only to those who could prove they had a special need to carry a gun like a threat to their personal safety was a violation of their constitutional rights.The ruling invalidated not only New Yorks laws but also the regulations in California, New Jersey, Maryland, and other states that are home, collectively, to more than 80 million Americans. But it wasnt just that a few states laws were overturned. The Court also established a new standard for judging gun laws: Going forward, government officials had to prove their regulations were consistent with the Second Amendment by pointing to a similar gun law from American history.Legal experts blistered the Court for the decision, pointing out that this new standard would open up nearly every gun law in the country to legal challenge. Gun violence researchers worried, too, about the possibility of more gun deaths, pointing to research showing that states that allowed people to carry guns had higher rates of violent crime.Since the Bruen decision, much has been written about the havoc it has unleashed in the lower courts. Judges have protested that theyre not trained to be historians. Scholars in niche corners of legal academia have become in-demand expert witnesses. And several laws that were relatively uncontroversial, including banning guns from churches and other places of worship and prohibitions on young adults from carrying, have been challenged as unconstitutional. In United States v. Rahimi over the summer, the Court appeared to narrow the scope of Bruen, clarifying that the government had the right to prohibit people with restraining orders for domestic violence from owning firearms. But the clarification still left plenty of questions, and Justice Ketanji Brown Jackson noted numerous complaints about Bruen from lower courts in her concurring opinion.Bruen is still a very new decision. The true fallout will likely take years to unfold. Rahimi is the only other Second Amendment case the Court has resolved since. Other cases, involving more legally and morally challenging disputes, are likely still to come.Since Bruen, there have been more than 1,000 court cases in which people convicted of felonies have contested their bans on gun ownership, according to nonprofit newsroom The Trace. And there are hundreds of legal challenges to gun laws now working their way through the courts. Less discussed has been what the change has meant for policing and for criminal justice in America. The worst-case scenario experts warned about where gun violence rose because more people were carrying weapons hasnt yet materialized. (Violent crime and murder continued to drop at a historic rate in 2023.) Still, the fall of Bruen has presented new challenges to how the police operate and new opportunities for the people theyve charged with crimes.When the Bruen decision came down, LeRonne Armstrong felt like his job was about to get a lot more difficult.Armstrong was then Oakland, Californias chief of police. Like many American cities, Oakland was suffering from an epidemic of gun violence that got worse during the pandemic. Armstrong didnt think that having more guns on the street would help solve the citys problems, and state law allowed police to deny people concealed carry permits if they couldnt demonstrate a reason for one. We just felt like it wasnt appropriate to approve more guns when we were taking the stance that we were trying to remove guns from the community, Armstrong says. We were really trying to emphasize that this is not a city where we are welcoming concealed carry permits.But after Bruen, law enforcement in California could no longer deny concealed carry permits at their own discretion. Oakland, Armstrong said, saw a huge spike in requests for concealed weapons permits. Similarly, applications to carry a gun skyrocketed in New York City, Baltimore, and Washington, DC matching trends in other big cities like Chicago and Philadelphia. Some police departments, facing staffing shortages and the pandemic gun violence surge, were overwhelmed with the number of applications and couldnt keep up, so much so that they were sued for failing to process them quickly enough.But lawmakers in states affected by the Bruen decision didnt just accept that people could now carry their guns wherever they wanted. Instead, they moved quickly to pass new regulations intended to protect public spaces. In New York, for example, the state legislature passed the Concealed Carry Improvement Act of 2022, which banned weapons from a large number of public places. The law also required concealed carry applicants to meet with a state official and provide extensive documentation to prove their good moral character. In other words, while Bruen upended the states gun regulations, a new set of laws quickly upended them again. Two years later, everyone from cops to courts to criminal defense lawyers is still trying to sort out the mess. Its not just that officers are concerned about public safety with more people carrying guns in public. Bruen, along with years of state legislatures legalizing concealed and open carry, has also created confusion about whether seeing someone with a gun is an inherent danger and a reason to believe a crime is taking place. Previously, the courts have held that the presence of a gun, or even the suspicion that a gun might be present, represented a threat significant enough that it allowed police extraordinary powers to stop and search citizens. Now, those long-held shibboleths are coming into question, upending some of the basic premises of police work in the United States. As recently as 1980, nearly all US states either banned carrying guns in public or permitted them only when a person could prove special need, write Brandon del Pozo and Barry Friedman, academics who focus on law and policing, in a 2023 article titled Policing in the Age of the Gun. For that reason, in big cities especially, officers could reasonably assume that a person carrying a gun in public was committing a crime. The world has told the cops that when you see a gun, its probably illegal, and if you suspect a gun is out there in public, you should suspect that a crime is afoot, says del Pozo, who began his career as an officer in the New York City Police Department and served as chief of police in Burlington, Vermont, before becoming an academic researcher at Brown University. In other words, he and Friedman write, generations of police officers were taught that the mere suspicion of a gun gave them the right to stop and search.The Court upheld this practice in a landmark 1968 ruling when it decided in Terry v. Ohio that an officer could detain someone they suspected had committed, were committing, or were about to commit a crime. The Court also held that officers were allowed to briefly search a person if they had reasonable suspicion to believe they could be armed and presently dangerous. Terry formally gave police the power to stop and search people in public. The decision paved the way for the rise of controversial police practices like stop-and-frisk, a widespread practice of stopping people usually Black and brown men and patting them down to check for weapons. Later, the Court expanded the powers of police to include pretextual traffic stops, where officers could pull over a car after saying they observed a traffic violation and then use the opportunity to search someone. In the law, guns have been permission slips, says Friedman, a professor at New York University who specializes in constitutional law, policing, and criminal procedure. An actual gun or the threat of a gun, even a bulge that might indicate a gun all of these gave a license to do a lot of things to people. The courts have historically allowed officers those powers in part because the presence of a gun was considered a threat to their safety. The Supreme Court has continually emphasized its commitment to officer safety, says Guha Krishnamurthi, a professor and expert in criminal procedure at the University of Maryland Francis King Carey School of Law. Then came years of state laws declaring that it was legal for people in certain states to carry guns in public, and Bruen, which took it a step further and said that citizens have a right to carry their gun in every state. The change raises a fundamental question about how much of a risk guns are to the police.The Court is suddenly saying: Guns arent dangerous. Owning a gun is your individual right. You shouldnt be trespassed upon by law enforcement simply because you have a gun, Krishnamurthi says. Theres a real tension because if thats true, then merely [seeing] some guy pacing in front of a store with a displayed firearm is not a danger. And that means that the officer cant approach them, cant frisk them, cant do all of that. Or can they? Its still not entirely clear. In some states, lawmakers have passed legislation making it clear that officers arent allowed to stop and search someone just because they suspect they might have a gun they arent allowed to be carrying. But in jurisdictions where those laws arent in place, the courts are still struggling to figure it out.In 2023, according to the New York Times, a man named Robert Homer was searched by police after they spotted him on surveillance footage in a high-crime area putting a gun in his pocket. An officer, saying he had reason to suspect a crime was taking place, searched Homer, located the gun, and then discovered that Homer had a prior conviction for sex trafficking. Homer was indicted and charged with being a felon in possession of a firearm. Homers lawyer protested the charge, saying that having a firearm in public wasnt enough to warrant a search. She claimed Homer shouldnt have been stopped by police in the first place because Bruen makes it clear that carrying a gun is his right. A judge agreed with the lawyer and dismissed the charge. But in another case later that month in Manhattan, a state judge said he disagreed with the finding and rejected a different persons request to have his conviction thrown out on Bruen grounds. So, at least in New York, theres still confusion about what, exactly, police can and should do when they see a gun. Its not just New York, though, and its not just a question of what right police have to search someone. Some police worry that an increasingly armed public makes everyone less safe. As Armstrong notes, officers arent carrying around lists of people who are licensed to carry. When they encounter people who are armed, that threat is serious for law enforcement, he says. In a dangerous situation, police are making a split-second decision, he adds. Those decisions, at times, have tragic and deadly consequences for civilians: Every year in the United States, the police shoot and kill innocent people, later saying they opened fire because they feared for their lives. The risks to officers arent hypothetical: In 2024, at least 49 officers were shot and killed while on duty. Its not unfounded, because there are police who get shot within seconds of a stop, del Pozo says. Its a real tension. Those stories stay with officers, who are constantly thinking about safety on the job. You worry, as a police officer, who are you making contact with, Armstrong says. Is this person armed? For criminal defense attorneys and their clients, though, the uncertainty hasnt been a bad thing. The ruling is creating new opportunities for legal defense, with some arguing that Bruen allows them to challenge charges that disproportionately affect Black Americans. In the decades after Terry, stop-and-frisk and traffic stops became widespread, as did the criticism that they violated Americans Fourth Amendment right against unreasonable search and seizure. In 2013, for example, a court found that New York Citys policy of stop-and-frisk violated citizens constitutional rights. Researchers have shown that the policies have been used to disproportionately harass and incarcerate Black and brown people. Bruen now gives defendants a chance to challenge one of the most common charges that police use to try to control violent crime criminal possession of a weapon as well as other charges. Some legal scholars have noted that the new precedent established by Bruen could provide opportunities to end long-held policing practices that have ensnared a disproportionate number of racial minorities in the criminal justice system. Bruen should be used as a tool for decriminalization of minority gun ownership, writes William Jacobs-Perez in the University of Maryland Law Journal of Race, Religion, Gender and Class. The fact that Bruen makes it harder for police to justify practices like stop-and-frisk, he says, provides an opportunity to abandon the current system of punishing people for gun possession in favor of policies that tackle the root causes of gun violence.Not everyone is optimistic that the outcome of Bruen will be more racially just policing. In Policing in the Age of the Gun, Friedman and del Pozo argue that police will likely just find other methods like asking people if they have a weapon on them to justify their searches. [The] police are almost certainly going to rely more on supposedly consensual encounters, and courts will grant them leeway, del Pozo and Friedman write. Friedman says that police will probably find judges who are sympathetic to their arguments. For that reason, hes skeptical that Bruen will lead to more just law enforcement practices in overpoliced neighborhoods.I dont really believe that policing of guns is going to stop in those communities, Friedman says. But maybe were going to get ever more complicated stories about why the police had to conduct a stop in a situation.In other words, like so many other consequences of Bruen, he expects the chaos will continue.See More:
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