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Scholarship Highlight: Restrictions for Juvenile Offenders, Bruen's Use of History, and ShotSpotter Detection Technology

  • Date:
  • October 26th, 2022

By: Andrew Willinger

Today we’re highlighting a few new pieces of firearms-related scholarship, ranging from an empirical analysis of restrictions on gun possession by those convicted of juvenile felony-equivalent offenses (by Center faculty affiliate Jeffrey Swanson and colleagues), to a critique of Bruen’s historical methodology, to an evaluation of police use of ShotSpotter gunshot-detection technology under the Fourth Amendment.  Each piece is summarized further and linked below.

Authors:  Jeffrey W. Swanson, Guangyu Tong, Michele M. Easter, Josie Caves Sivaraman, Elizabeth J. Gifford, Brett O. Gardner, Ellen A. Donnelly, Kelly E. Evans, William E. Copeland, Marvin S. Swartz, Richard J. Bonnie

Abstract

Youth who acquire a juvenile crime record may be at increased risk of perpetrating gun violence as adults. North Carolina and 22 other states permit young adults who were adjudicated by a juvenile court – even for some felony-equivalent offenses – to legally access firearms. Effectiveness of gun restrictions for adults with juvenile crime histories has not been systematically studied. This article reports findings from a longitudinal study of arrests and convictions for gun-involved and other offenses in 51,059 young adults in North Carolina, comparing those with gun-disqualifying and not-disqualifying juvenile records. The annualized rate of arrest for gun-involved crime in those with a felony-level juvenile record was 9 times higher than the rate of reported comparable offenses in the same age group in the North Carolina general population (3349 vs. 376 per 100,000). Among those with a felony-equivalent juvenile delinquency adjudication who became legally eligible to possess firearms at age 18, 61.8% were later arrested for any criminal offense, 14.3% for a firearm-involved offense. Crimes with guns were most likely to occur among young adults who had committed more serious (felony or equivalent) offenses before age 18; had been adjudicated at younger ages; acquired a felony conviction as a youth; and spent time in prison. The prevalence of arrests for crimes involving guns among young adults in North Carolina with a gun-disqualifying felony record acquired before age 18 suggests that the federal gun prohibitor conferred by a felony record is not highly effective as currently implemented in this population. From a risk-based perspective, these restrictions appear to be justified; better implementation and enforcement may improve their effectiveness. Gun crime prevention policies and interventions should focus on these populations and on limiting illegal access to firearms.

From the Abstract

In New York State Rifle & Pistol Association v. Bruen, by a vote of 6-3, the Supreme Court held that the “Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home,” and any state or local laws that condition the “issuance of a license to carry on a citizen’s showing of…special need” are thereby unconstitutional. The decision is remarkable in several respects. For one, Bruen upended a regulatory regime that has existed since the mid-to-late nineteenth century—a regime that was instituted and sustained by lawmakers to preserve the Second Amendment, not violate it. What is also remarkable about Bruen is the manner historical evidence was marshalled, selected, and analyzed. Rather than examine all the historical evidence objectively and at face value, Bruen made it quite clear that “not all history is created equal,” and therefore conveniently cherry-picked whatever historical evidence supported broad carry rights and rejected or explained away any evidence that did not.

It is difficult to say what history-based jurisprudential methodology Bruen employs. On its face, Bruen appears to be grounded in public meaning originalism. Yet at several points the Bruen majority picks and chooses historical evidence on little more than a whim. Yet no matter how Bruen is methodologically classified—whether it be originalist or some other history-based form of constitutional interpretation—the fact of the matter is that the 6-3 majority’s historical approach is neither objective nor holistic. To be blunt, Bruen fails to adhere to even basic academic standards. The length in which the Court margin walks history and then claim that virtually all the relevant evidence points in one direction is particularly worrisome. In this author’s opinion, it proves once and for all that history is not so much a constitutional guardrail as it is a jurisprudential pawn in the wider debate over the Constitution’s meaning. Equally concerning are the interpretative historical rules laid down in Bruen, for they appear to stack the constitutional deck against firearms regulations moving forward. Even worse, these interpretative rules blatantly set aside even the appearance of historical accuracy, objectivity, and transparency, and therefore, if adopted by the lower courts wholesale, will assuredly undermine the legitimacy of Second Amendment jurisprudence moving forward. The way this author sees it, Bruen has created a new, fugazi Second Amendment. And by fugazi, what is meant is that the Second Amendment, at least as articulated by Bruen, is historically ruined and fake.

This article will expound on how the Supreme Court’s opinion in Bruen has created a fugazi historiographical crisis of its own making. To highlight Bruen’s historical flaws, this article will first examine and unpack several of the majority’s history-based arguments and justifications. This article will then expound on why the majority’s text, history, and tradition guidance create several problems for the lower courts moving forward, including the soon to be highly contested “sensitive places” doctrine.

Abstract

ShotSpotter technology is a rapid identification and response system used in ninety American cities that is designed to detect gunshots and dispatch police. ShotSpotter is one of many powerful surveillance tools used by local police departments to purportedly help fight crime, but they often do so at the expense of infringing upon privacy rights and civil liberties. This Article expands the conversation about ShotSpotter technology considerably by examining the adjacent Fourth Amendment issues emanating from its use. For example, law enforcement increasingly relies on ShotSpotter to create reasonable suspicion where it does not exist. In practice, the use of ShotSpotter increases the frequency of police interactions, which also increases the risk of Black Americans becoming the victims of police brutality or harassment. Such racialized policing facilitates the status quo of violence and bias against Black Americans.

This Article uses recent cases from the D.C., the Fourth, and Seventh Circuits as a foundation to argue that officers arriving on the scene to investigate a gunshot sound they were alerted of via ShotSpotter technology should not be allowed to use the gunshot sound as the basis of reasonable suspicion and subsequent search and seizure. At the heart of this Article is the argument that the use of ShotSpotter technology is unconstitutional under City of Indianapolis v. Edmond because it is not used for a specific law enforcement purpose beyond preventing crime generally. Under the reasoning and result of Edmond, law enforcement is prohibited from using ShotSpotters unless officers have reasons for individualized suspicion.

Spending more money on ineffective ShotSpotters placed in “high crime” neighborhoods across America is not the answer to reducing gun violence. As seen with Oakland's successful Ceasefire program, there are innovative ways to simultaneously build trust in communities and curb gun violence. Indeed, properly designed group violence reduction strategies will foster and maintain dignity for participants in a program tailored to saves lives and promote community healing.