As the manager of the Repository of Historical Gun Laws at the Duke Center for Firearms Law, I spend a great deal of my time searching for and reviewing historical firearm regulations. Occasionally, during this research, I serendipitously come across unusual, intriguing, or enlightening laws. This post is the first in what will be an ongoing series of blog posts highlighting interesting regulations in the Repository.

Before getting into the substance, I should briefly explain a bit about my background. I hold an MA in History from North Carolina State University and a MLIS (Master’s in Library and Information Science) from North Carolina Central University.  I worked as a librarian at a variety of public and private institutions before joining the Center earlier this year.

This post highlights an interesting set of regulations I have not seen discussed elsewhere: 19^th-century laws that include provisions setting forth significant punishments for peace officers (individuals responsible for enforcing the law) who refused to arrest someone suspected of violating a gun-related restriction.

These “refuse to arrest” provisions generally were included within laws that limited the carrying of certain easily concealable weapons, and—as you can see from the sample below—similar provisions appeared across the country in the mid-late 1800s.  Readers can find “refuse to arrest” laws in the Repository by following this link.

While determining the rationale for these provisions is beyond the scope of this short post, I have found one clue related to the Maryland law. On January 13, 1860, a Baltimore newspaper called The Daily Exchange published an article entitled “More Incidents of the November Election.” One incident described in the article involved a political gang known as the “Rip-Raps,” a violent arm of the Know-Nothing movement associated with the American Party:

…I at once saw Gregory… Barrett … in the act of firing a revolver; I saw him fire three times, one of his shots taking effect in Daniel Duffy, another in Mr. Stiles, I did not recognize the third person he shot at; immediately upon discharging the third barrel of his pistol, as witnessed by me, a police officer approached him, whom Gregory Barrett took by the lappel of his coat and pointing with his pistol towards the house into which Duffy had escaped, they both went in the direction of the house… when they came out of the house together, and passed in the direction of the polls… perceiving that Barrett was not in custody, but that the police officers were acting apparently in complicity with him, I crossed the street, and said to [officer] No. 223, that it must be apparent to him that Barret was armed and attempting to take human life, and that it was his duty to take him into custody immediately; upon which he looked me sternly in the face and replied; “You be damned, attend to your own business…” (emphasis added)

The article goes on to detail a number of similar stories. Ideologically, the Rip-Raps were nativist, strongly anti-immigrant, and especially concerned about the German and Irish Catholics who had recently come to the US in large numbers. The Know-Nothing movement was more or less national in scope, but support for it in Baltimore was especially strong (see this 2008 article for additional background).

The Daily Exchange included several other eye-witness interviews, and, in each case, the police refused to arrest any of the perpetrators, perhaps because they were sympathetic to the political views of the Rip-Raps. The refusal-to-arrest provision included in the St. Mary’s County, Maryland law of 1886 may have been intended in part to prevent similar events from happening in the future, especially considering its focus on restricting public carry during elections. While it is difficult to draw any definite conclusions, the inclusion of refusal-to-arrest penalties in 19^th century public carry regulations is an especially promising area for further historical research.

Today’s post highlights a new book by Center faculty affiliate Phil Cook (a Professor Emeritus at Duke’s Sanford School of Public Policy) and University of Pennsylvania Professor Anthony Braga titled Policing Gun Violence: Strategic Reforms for Controlling Our Most Pressing Crime Problem.  The book was just released by Oxford University Press this week, and can be ordered online here and through other platforms. 

Professor Cook has written extensively on issues related to gun violence, including the 2014 book The Gun Debate: What Everyone Needs to Know, which was co-authored with Center faculty Kristin Goss (also a Professor at the Sanford School).

Summary of Policing Gun Violence:

In many U.S. cities, gun violence is the most urgent crime problem. High rates of deadly violence make a city less livable, dragging down quality of life, economic development, and property values. The police are the primary agency tasked with controlling gun violence, yet advocates for gun violence prevention either ignore the police or only reference them as a part of the problem. But in fact, more effective policing is key to the success of any comprehensive effort to reduce community gun violence.

The stakes are high–gun violence is concentrated in low-income Black communities, and consequently these communities bear the brunt of the associated economic, social, and psychological burdens. Any successful strategy must overcome the current impasse where the residents of high-violence neighborhoods do not trust the police, having experienced both abuse and neglect in their dealings with officers. How can police departments find the right balance between over- and under-policing of high-violence areas? What are the best practices for police to preempt and deter gun violence, while engendering support and cooperation from the public?

Drawing on fifty years of research and practical experience, Policing Gun Violence argues that it is possible for the police to create greater public safety while respecting the rights of individuals and communities. While gun violence can be attributed to various systemic causes that should remain on the public agenda–from widespread gun availability to poverty and racism–Anthony A. Braga and Philip J. Cook make the case that violence is itself a root cause of social disparity and future violence. Effective law enforcement is a vital component of a just society. They review and synthesize the evidence in several key areas: enforcement of gun laws, policing hot spots, controlling high-risk groups through focused deterrence, enhancing investigations to increase the arrest and conviction rate, preventing officer-involved shootings, and disrupting underground gun markets. Policing Gun Violence serves as a guide to how the police can better utilize their considerable resources to make
cities safer.

Introduction

Justifiably, there has been considerable attention and focus by the public, scholars, policy makers, and criminal justice and public health practitioners on violent crimes involving firearms. However, much less attention has been paid to the crime of illegal possession of firearms. Part of this reflects dramatically different definitions of this behavior across the states given the variation in the requirements for concealed carry of a handgun, and thus what constitutes legal versus illegal possession or carrying. And while clearly the commission of a violent crime with a firearm versus the possession of a firearm by someone not licensed/permitted to do so are substantively different behaviors, often the term “gun crimes” conflates the two criminal offenses. This essay examines the issue of how illegal possession of a firearm is responded to by the justice system, with a focus on Illinois to illustrate some of these issues and how arrests and convictions for these offenses disproportionately impact Black men.

Violent Crime Committed with a Firearm (The Real Problem)

In 2019, it is estimated that there were more than 480,000 violent crimes committed with a firearm in the United States,[1] representing a 68% decrease when compared to 1993.[2] However, despite this dramatic decrease in the number of violent crimes committed with a firearm, the rate at which Blacks experience fatal and non-fatal firearm violence victimization remains significantly higher than that experienced by whites. In 2019, for example, the rate of non-fatal firearm violence victimization (i.e., robbery, assault/battery, rape) among Blacks was 287 per 100,000 population, more than double the rate of 134 per 100,000 among whites and similar to the 251 per 100,000 rate among Hispanics.[3] The racial disparity in firearm homicide victimization rates is even more pronounced nationally, with the 2019 rate for Blacks at 19.6 per 100,000, or 12-times higher than the rate of 1.6 per 100,000 population for whites and six-times higher than the rate of 3.8 per 100,000 among Hispanics.[4]

However, we also know that these rates vary considerably across individual states and communities within states. In, Illinois, for example, in 2019 the rate of firearm homicides among Blacks was 32.7 per 100,000, compared to 1.1 per 100,000 for whites and 4.3 per 100,000 among Hispanics.[5] Even more specifically, the rate of firearm homicides among Blacks in Cook County, Illinois (which includes Chicago) was 37.9 per 100,000 in 2019, 1.2 per 100,000 among whites, and 5.9 per 100,000 among Hispanics.[6] However, in 10 of Chicago’s 77 “community areas,”[7] the overall homicide rate in 2019 was over 50 per 100,000, and is even higher among Black men.[8]  Thus, when it comes to the highly publicized instances of firearm homicides, as well as the less publicized, but much more prevalent, non-fatal firearm victimizations, Blacks, and particularly young Black men, experience the highest rates of firearm violence, particularly in specific communities within large, urban areas.

Despite the seriousness of these violent crimes committed with a firearm, not only are a substantial portion not reported to the police, but of those that are reported to the police, most do not result in an arrest. For example, of the non-fatal violent crimes committed with a firearm in 2019 in the United States, 60% were reported to the police.[9] However, even when these crimes are reported to the police, in most instances they do not result in arrests. The Federal Bureau of Investigation estimated that in 2019 less than one-third of all aggravated assaults and robberies with a firearm in the United States were cleared by an arrest.[10] For the most serious form of gun violence—homicide—clearance rates tend to be higher than non-lethal violent firearm offenses, but are still low given the seriousness of the offense and relative to historic levels (i.e., clearance rates in 2020 were 54%, but exceeded 65% prior to 2000).[11]

Further, when it comes to responses by the justice system to gun violence, much of the focus has been on the sanctions that can be imposed on violent crimes committed with firearms. Examples of the more punitive sentences that can be imposed on violent crimes committed with a firearm include mandatory minimum prison sentences, sentencing enhancements when violent crimes are committed with a firearm (e.g., additional years added to a sentence when armed with a firearm or when a firearm is discharged during the commission of a crime), violent crimes committed with a firearm being subject to truth-in-sentencing, or three-strike/habitual offender laws, all of which are intended to increase the certainty and severity of punishment. Much of the response by legislatures, prosecutors and judges to violent crimes committed with a gun has been based on the understandable recognition that these violent crimes pose a significant danger to the public, and that those individuals who commit these offenses need to be incapacitated, punished, and not released until they no longer pose such a significant risk to public safety.

A Focus on Illegally Possessing Firearms

Given the limited degree to which the criminal justice system is able to apprehend and sanction those who commit violent crimes with a firearm, due to not all crimes being reported to the police and low clearance rates, the logical alternative is to find those who may be illegally possessing firearms under the view that some of them may be driving the gun violence problem. We saw similar thinking during the late 1980s and the war on drugs—those possessing drugs illegally may be drug dealers or may be driving violence, and thus, penalties associated with the illegal possession of drugs like cocaine, heroin and methamphetamine were increased. However, the justice system’s response to the illegal possession of a firearm, often lumped into the broad category of “gun crime,” is less well understood empirically. Further, while possession of a firearm is necessary to commit a violent crime with a gun, not all of those who possess a gun (either legally or illegally) intend to use it that way. While there has been a lot of research that has used gun confiscations (i.e., arresting people who illegally possess firearms) as an outcome measure in, for example, evaluations of hot-spot policing or assessment of the efficacy of stop-and-frisk practices, there is little research that has examined the characteristics of those arrested for illegal firearm possession, the sentences imposed on those convicted of these offenses, and subsequent recidivism patterns of those convicted.

Frequently these crimes are referred to as “unlawful use of a weapon,” or UUW, however, to many (particularly the general public) this terminology conflates possession with actually using a weapon to commit a violent crime. And while it is recognized that not all UUW offenses involve the illegal possession of a firearm, in many jurisdictions most crimes that fall into this category are in fact firearm possession crimes. In 2019, there were more than 153,000 arrests by state and local police departments in the United States for weapon offenses (i.e., UUW), 9% more than in 2014;[12] arrests by federal law enforcement agencies for weapon offenses, albeit much fewer, increased 67% between 2014 and 2019, reaching almost 12,000.[13] For context, while arrests by state and local police departments in the United States for UUW increased 9% between 2014 and 2019, arrests for all crimes combined fell 10% and arrests specifically for violent crimes remained essentially unchanged (falling 0.5%).[14] It is important for scholars to determine if this increase in arrests for weapon offenses reflects an increased focus by police on these types of crimes, an increased prevalence of the behavior (i.e., more illegal carrying of weapons), or a combination of both.

In addition to an increase in arrests, arrests for UUW are also much more likely to involve Black individuals than are arrests for other crimes; in 2019, 42% of all people arrested for weapon offenses in the United States were Black, while Blacks accounted for 37% of all arrests for serious violent crimes and 26% of arrests for all other offenses.[15] Again, trends in arrests for illegal possession of a firearm offenses likely differ from state to state, and community to community, as does the degree to which Blacks are overrepresented among those arrested. Research in Illinois found that while total statewide arrests for illegal firearm possession increased 70% between 2014 and 2019, specifically in Chicago (and Cook County) arrests for these offenses increased 85%, with much larger (and smaller) percent changes seen across other large jurisdictions in the state.[16] Throughout this period of increased arrests for illegal firearm possession were announcements by Chicago’s Mayor and Superintendent of Police regarding “crack downs” on illegal gun possession, suggesting the increase in arrests in Chicago were, at least partly, attributed to a greater focus by police on proactively looking for these crimes (i.e., through traffic stops and other on-view enforcement activity). In terms of the race of those arrested in Illinois, 79% of those arrested in Chicago (Cook County) were Black, compared to 54% of those arrested in the rest of Illinois for this offense being Black.[17] An even finer point, to illustrate the specific population most impacted by arrests for illegal firearm possession in Chicago (Cook County): 79% were Black, 92% were male, and 52% were between the ages of 18 and 24 (i.e., young, Black men).

Importantly, and as mentioned above, the legal criteria for what constitutes the offense of illegal possession of a firearm varies from state to state, depending on their laws regarding licensing of gun owners or licensing requirements for carrying a concealed handgun. In a state without licensing requirements for concealed carry of a handgun (i.e., permitless carry), what constitutes illegal possession is much narrower and more limited than a state that requires a permit in order to carry a concealed handgun. Thus, in a state like Illinois, where concealed carry requires both a Firearm Owners Identification (FOID) card (permit to purchase/own) and a concealed carry license (which requires training classes, registration, and fees) the opportunities to be found illegally possessing a firearm are greater than in states that do not require a permit to carry a concealed handgun. Currently, 21 states have no permit requirement,[18] and it is likely that, as a result, there is a lower rate of arrests for illegal possession of a firearm in these states. Thus, the degree to which individuals are arrested, convicted and sentenced for the illegal possession of a firearm will vary considerably from state to state given the differences in what is legal versus illegal from state to state.

In addition, the consequences of arrests for illegal possession of a firearm depend on state law, and are also influenced by local practices. How this behavior is legally classified in states ranges from misdemeanor-level to non-probationable felony crimes. In states where this crime is a felony, a conviction potentially has life-long consequences given the implications of having a felony conviction, including restrictions or limitations on an individual’s employment opportunities, voting rights, access to housing, and firearm ownership. In addition, whether or not a conviction for a felony firearm possession offense results in a sentence to prison will also vary from state to state, and county to county (or prosecutor’s office to prosecutor’s office). Indeed, even the degree to which the illegal possession of a firearm is viewed as a “crime of violence” varies from jurisdiction to jurisdiction, and practitioner to practitioner, but has obvious implications for how these offenses are viewed by practitioners as they make decisions regarding pre-trial release, charging, plea-bargaining and sentencing.

Illegal Firearm Possession as a(n imprecise) Proxy for Firearm Violence

Given the pressure for police to address gun violence in the communities most impacted, it is understandable that if police are unable to identify those committing fatal and non-fatal shootings, they would seek at least identify potential shooters by arresting those illegally possessing firearms. And if the police are going to focus on illegal firearm possession to address firearm violence, they will likely concentrate their efforts in the specific communities with the highest rates of gun violence. Illustrative of the impact of this pattern and approach, in Chicago there is a near perfect correlation between arrest rates for illegal firearm possession and rates of non-fatal violent crimes committed with a firearm across the 77 community areas in the city (Figure 1).[19] In other words, the communities with the highest rates of gun violence, which are also the communities where police and Black residents are most highly concentrated, experience the highest rates of arrests for illegal firearm possession. However, the analyses presented in Figure 1 also illustrates how in some communities the rate of arrests for illegal firearm possession actually exceeds the rate of fatal and non-fatal firearm shootings (i.e., the data points, which represent each of the 77 Chicago community areas, below the line are communities that had firearm possession arrest rates that were higher than the rate of fatal and non-fatal firearm shootings).

Figure 1: Rates of Fatal and Non-Fatal Firearm Shootings versus Rates of Arrests for Illegal Firearm Possession, by Chicago Community Areas, 2017-2019 Combined

Still, clearance rates for the actual violent crimes committed with a firearm remain low: in 2019, less than 10% of aggravated batteries and robberies with a firearm resulted in an arrest.[20] In addition, the means by which the police identify people illegally possessing firearms often rely on approaches—hot-spot policing, aggressive enforcement of traffic laws, and stop-and-frisk practices in communities with high rates of gun violence and large concentrations of Black residents—that have the potential of exacerbating distrust between police and minority communities. Further, in carrying out operations to increase arrests for illegal firearm possession, it is likely that police are casting a wide net—not all of those in a community who illegally possess firearms are doing so with the intent of committing violent crimes with a firearm. Indeed, given the high rates of violence, particularly gun violence, in these communities, it is understandable why those with the highest risk of victimization (young Black men) would perceive a benefit to carrying a firearm for self-protection. Research has consistently found that most people who own, and carry, firearms do so for personal protection, including those that have concealed carry licenses as well as those who may be prohibited from/not licensed to legally carry a concealed handgun. In many states, to obtain a concealed carry permit, and to therefore be legally compliant, involves a process (costs and submission of information to law enforcement) that many may not be an able to afford, or, more importantly, may not trust. For example, a survey by the Urban Institute of young people (aged 18 to 26) living in Chicago neighborhoods most impacted by violence, and almost all of whom were Black, found that while one‐third (32%) of the entire sample had carried a firearm illegally at some point in their lives, the prevalence was higher (50%) among males, and even higher among those who had been previously victimized. Almost all of those who reported having carried a firearm reported that self‐protection or to protect friends/family members was the reason for gun carrying. Among those respondents who reported carrying a firearm, the vast majority did not have strong perceptions of police legitimacy and did not perceive the police as effective at reducing crime.[21] Of all those arrested in Illinois for illegal possession of a firearm offenses between 2008 and 2019, it is estimated that just over one-third (35%) were older than 20 and had no prior conviction for a felony or a domestic violence offense (i.e., they did not have a disqualifier to applying for and obtain a concealed carry license in Illinois) and most were Black.[22]

Sentencing Those Convicted of Illegal Firearm Possession

Thus, we see nationally, and specifically in Illinois and Chicago, an increase in arrests for the illegal possession of firearm (i.e., UUW) in recent years that disproportionately impact individuals that are Black, and, as illustrated in Chicago, young Black men from specific neighborhoods with high rates of gun violence. How these arrests are responded to by prosecutors and the courts, however, is less well known. Nationally, the availability of data on sentencing those convicted of illegal possession of a firearm offenses is limited, and quite dated. The most recent nationally representative sample of sentencing outcomes for those convicted of a felony-level weapon offense (i.e., UUW) is 2006, and found that 45% of those convicted of a felony weapon offense were sentenced to prison.[23] A slightly more recent assessment of felony sentences imposed in large, urban counties in the United States found that in 2009, 53% of those convicted of a felony weapon offense were sentenced to prison.[24] However, as noted above, given the wide variation across states in what constitutes illegal firearm possession (i.e., differences in concealed carry requirements), and the degree to which those offenses are felony or misdemeanor crimes, understanding sentencing outcomes of these arrests requires a state by state examination to fully determine the influence of defendant, case, offense, and jurisdictional characteristics influence sentencing decisions.

Research performed in Illinois, and separately for Cook County (Chicago), found that changes to how the offense of illegal possession of a firearm is classified in state statute over time resulted in a dramatic increase in the likelihood of a prison sentence. Importantly, since 2011, almost all instances where a loaded handgun is carried, or accessible in a vehicle, without a concealed carry permit by someone without any prior convictions is a non-probationable felony (with a sentence of 1 to 3 years). When this law was signed into effect, Richard M. Daley, the Mayor of Chicago at the time and an advocate for the new legislation said “This legislation will reduce the threat of gun violence by sending a clear message that serious offenders will be held accountable and will not be let off scot-free as many of them have been in the past” (emphasis added).[25] Even more to the point, and illustrating the conflating of illegal firearm possession with the commission of violent crimes with a firearm, Ronald Holt, from the Chicago Police Department but also the parent of a son killed by gunfire stated “(This bill) sends a clear message to violent offenders that they will be dealt with to the fullest letter of this law, as punishment will be swift, severe and fair” (emphasis added).[26] Again, the law required a prison sentence for illegal gun possession by people without any prior convictions, and had nothing to do with violent crimes committed with a firearm, which already require prison sentences with potentially long sentences given the firearm sentencing enhancements in place.

However, despite these state laws, the application of the law appears to have primarily occurred in Chicago (Cook County). When the law requiring a prison sentence for those without a felony conviction, but illegally carrying a handgun, went into effect in 2011, sentencing patterns changed dramatically in Cook County (Chicago), but did not change at all outside of Cook County. In Cook County, the proportion of those convicted of this offense being sentenced to prison went from 30% in 2010 to 80% by 2013; outside of Cook County, the proportion of those convicted of this offense sentenced to prison remained at 30%. And although race did not influence whether or not those convicted of these offenses went to prison after controlling for other characteristics, such as age, gender, and prior arrests, the vast majority of those arrested, convicted and sentenced to prison were Black men.

In addition to mandatory prison sentences for those illegally possessing a handgun among those without prior felony convictions, over the past two decades in Illinois the sentencing for those with prior felony convictions that illegally possess firearms has also shifted to mandatory prison sentences (with longer maximums than other crimes in the same felony class). Since 2006, someone with a prior felony conviction for specific violent offenses, firearm possession offenses or specific drug-law violations who are subsequently in possession of a firearm are guilty of a non-probationable felony (with a sentence of 3 to 14 years), and since 2012 someone possessing a firearm with any prior felony conviction is also guilty of a non-probationable felony (with a sentence of 2 to 10 years). This change in 2012 was made despite the fact that most of those convicted of this offense were already being sentenced to prison, but this change resulted in all being sentenced to prison. Again, the vast majority of those convicted of the offense of a felon in possession of a firearm in Illinois were Black men in Chicago, and disproportionately from 11 specific neighborhood in the city.

In other words, as a result of these legislative changes, everyone who is arrested and convicted of illegally carrying a handgun in Illinois—primarily young, Black men in Chicago—is viewed as so dangerous that prison is seen as the only appropriate sentencing response. For those with felony convictions, it does not matter what the prior felony was for, how long ago the felony conviction occurred, or if the prior felony conviction indicated any propensity for violence. Among those convicted as a felon in possession of a firearm, the majority—74%—did not have any prior conviction for a violent felony offense. Rather, most were “felons” as a result of a prior conviction for drug-law violations, property crimes, or a prior illegal firearm possession offense.

Although there is limited, current national data on the sentencing of those convicted of illegal firearm possession offenses in the United States, it is possible to examine the number, trends and characteristics of those admitted to prison for these offenses (i.e., the illegal possession of, primarily, firearms, not the use of firearms in the commission of violent crimes). When looking at national trends, admissions to prison for these weapon offenses increased 9% between 2014 and 2019, while admissions for all non-weapon offenses fell 21% during that same time period.[27] These differential trends, for the most part, reflect trends seen in arrests, and are also consistent with the pattern in Illinois: more prison admissions for firearm possession offenses, but decreased admissions for all other crimes. Further, nationally, prison admissions for weapon offenses reflect an even higher degree of racial disparity than seen among arrests: Black individuals accounted for the majority (55%) of those admitted to prison for weapon offenses in 2019, but Blacks accounted for only 32% of prison admissions for all other offenses.[28]

Again, as a result of differences in state laws, policies and practices, the degree to which prison admissions are accounted for by weapon offenses varies. Illustrative of this variation, in 2019, weapon offenses (primarily illegal firearm possession) accounted for 5% of all prison admissions in the United States, however in states like California, New York and Illinois, 10% or more of the prison admissions were for these offenses. Even more specifically, a much larger share of prison admissions from large, urban counties are for weapon offenses. For example, in the 2018-2019 period, 21% of all prison admissions from Cook County (Chicago) were for weapon offenses, 17% of all prison admissions from Wayne County (Detroit) were for weapon offenses, and 13% of all prison admissions from Los Angeles County were for these crimes.[29] In fact, one out of every 10 (11%) prison admissions in the entire United States for weapon offenses in 2018-2019 were from just two counties, Cook and Los Angeles County, combined. Overall, the three states of California, Illinois and New York accounted for almost one-third (32%) of all prison admissions for weapon offenses in the United States in 2018-2019, but only 22% of the total U.S. population.[30]

Conclusions

There are a number of implications from the patterns and issues raised in this essay. First, there is little empirical research that has examined the extent and nature of arrests, convictions and the sentences imposed on individuals who illegally possess firearms. Determining the degree to which states with more restrictive policies regarding firearm ownership and possession/carrying are potentially exacerbating racial disparity among those on probation, parole or in prison, as well as the disparity with respect to felony records, is critical research needed to expand our understanding. Although Illinois, and Cook County (Chicago) is discussed in detail, the implications of the research findings from Illinois apply to any state where a first-time conviction for the crime of illegal possession of a firearm can result in a felony conviction, or requires the imposition of a mandatory prison sentence. Allowing for discretion, and basing this sentencing decision on more objective risk factors, would ensure that unnecessary incarceration of young Black men is avoided. Not classifying this behavior as a felony, which carries significant, long-term consequences would not only limit the use of incarceration (i.e., a jail sentence could still be imposed), but would also prevent a life-long felony record for behavior that may be motivated by fear of victimization and also disproportionately impacts Black men.

Indeed, even when mandatory prison sentences are in place for someone who possesses a firearm and has a prior felony conviction, it must be recognized that the offenses that constitute a felony vary from state to state, have changed significantly over time, and, as a result of the war on drugs and other factors, disproportionately impacts Black men. For example, during the 1960s when the federal Gun Control Act of 1968 was passed, it was estimated that roughly 10% of Blacks had a felony record, compared to roughly 2% of non-Blacks; by 2010, 23% of Blacks, 33% of Black men versus 6% of non-Blacks had a felony record.[31] Again, allowing discretion to determine who poses a risk to public safety, rather than solely being determined by a prior conviction that may have nothing to do with a propensity to commit violence, would avoid unnecessary incarceration that primarily impacts Black men. Ideally, any alternative to incarceration would involve services and programming that addresses risk of victimization, trauma resulting from experiencing or witnessing violent crime victimization, to reduce the need to illegally possess a firearm for self-protection.

Finally, it is important to use language and terminology that more accurately reflects the behavior of illegally possessing a firearm (i.e., unlawful use of a weapon), when the firearm is not actually used in the commission of a crime of violence. In Illinois, for example, the crime of carrying a concealed handgun without a license is referred to as “Aggravated Unlawful Use of Weapon,” and as described earlier, is a felony that carries a mandatory 1-3 year prison sentence. Rhetoric used by practitioners and policy makers that conflates illegal firearm possession with “gun crime” or “violent gun crime” further contributes to the public misunderstanding of what illegal possession of a firearm implies, and what might be the most appropriate legal responses. This conflation results in the view that increased enforcement of firearm possession in high crime communities is actually identifying those who are driving the gun violence in the community, as opposed to a wide net being cast that ends up including a mix of people who may potentially be committing gun violence but also potential victims seeking a means for self-protection.

Click here to view a PDF of this essay.

Cite as: David E. Olson, Illegal Firearm Possession: A Reflection on Policies and Practices that May Miss the Mark and Exacerbate Racial Disparity in the Justice System, Duke Ctr. For Firearms L.: Second Thoughts Blog (Jan. 19, 2022), https://firearmslaw.duke.edu/2022/01/illegal-firearm-possession-a-reflection-on-policies-and-practices-that-may-miss-the-mark-and-exacerbate-racial-disparity-in-the-justice-system.

[Ed. note: This essay is part of a collection of writings from the Center’s 2021 roundtable on Race and Guns in America.]

Notes

[1] Morgan, R. E. and Thompson, A. (2020): Criminal Victimization, 2020, U.S. Department of Justice, Bureau of Justice Statistics. https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/cv20.pdf

[2] Data generated from the Bureau of Justice Statistics, National Crime Victimization Survey, 1993-2019. https://ncvs.bjs.ojp.gov/year-to-year-comparison/characteristic

[3] Author’s computations using data generated from the U.S. Department of Justice, Bureau of Justice Statistics National Crime Victimization Dashboard (https://ncvs.bjs.ojp.gov/Home#hometopHome) and race-specific population figures from Morgan and Thompson (2020).

[4] Data generated from the Center for Disease Control and Prevention’s Web-based Injury Statistics Query and Reporting System (WISQARS) at https://wisqars.cdc.gov/fatal-reports. Rates are for non-Hispanic Blacks and whites.

[5] Ibid.

[6] Author’s analyses of Cook County Medical Examiner’s Office data. See https://datacatalog.cookcountyil.gov/d/cjeq-bs86/visualization

[7] Community area’s in Chicago were “mapped out by two University of Chicago sociologists, Robert E. Park and Ernest Burgess, in the late 1920s, grouping together neighborhood and surrounding areas. Except for the addition of O’Hare in 1965 and Edgewater in 1980, the boundaries of these regions have been kept unchanged.” These 77 community areas consist of hundreds of individual neighborhoods. Description from the Chicago Studies College of the University of Chicago, retrieved from https://chicagostudies.uchicago.edu/neighborhoods. These community areas are still used today as a way of presenting information about the city, including crime rates.

[8] Data generated from the City of Chicago Violence Reduction Dashboard. See https://www.chicago.gov/city/en/sites/vrd/home.html

[9] Morgan and Thompson (2020).

[10] Federal Bureau of Investigation (2020): Crime in the United States, 2019. U.S. Department of Justice retrieved from https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-2019/topic-pages/tables/table-27

[11] See Murder Accountability Project web-site at https://www.murderdata.org

[12] Author’s analyses of arrest estimates produced annually by the Federal Bureau of Investigation and published in their annual Crime in the United States series.

[13] Author’s analyses of arrest figures published through the Federal Justice Statistics Program: see https://bjs.ojp.gov/data-collection/federal-justice-statistics-program-fjsp#publications .

[14] Author’s analyses of arrest estimates produced annually by the Federal Bureau of Investigation and published in their annual Crime in the United States series.

[15] Ibid.

[16] Olson, D.E., Stemen, D., Foust, K., Guzman, C., Jacobs, L., Juarez, S., Michalak, H., Pankratz, A., Ward, A. (2021). Sentences Imposed on Those Convicted of Felony Illegal Possession of a Firearm in Illinois: Examining the Characteristics and Trends in Sentences for Illegal Possession of a Firearm. Center for Criminal Justice Research, Policy and Practice, Loyola University Chicago. See https://www.luc.edu/media/lucedu/ccj/pdfs/IllinoisGunPosessionArrestBulletinjuly2020[9718].pdf

[17] Olson, D.E., Stemen, D., Michalak, H., Juarez, S., Guzman, C., Ward, A., and Jacobs, L. (2020). Arrests in Cook County for Illegal Possession of a Firearm: Examining the Characteristics and Trends in Arrests for Illegal Possession of a Firearm within the Context of Crimes Involving Guns. Center for Criminal Justice Research, Policy and Practice, Loyola University Chicago. See https://www.luc.edu/media/lucedu/ccj/pdfs/CookCountygunpossessionbulletindecember2020.pdf

[18] Vasilogambros, M. (2021): No Permit, No Problem: More States Allow Residents to Carry a Hidden Gun. December 6, 2021. Pew Stateline. https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2021/12/06/no-permit-no-problem-more-states-allow-residents-to-carry-a-hidden-gun

[19] Illustrative of the near perfect correlation is a Pearson’s r statistic of .94 based on the author’s analyses of these data.

[20] Author’s analysis of Chicago Police Department data available through Chicago’s on-line data portal at https://data.cityofchicago.org/Public-Safety/Crimes-2021/dwme-t96c

[21] Fontaine, J., La Vigne, N., Leitson, D., Erondu, N., Okeke, C., and Dwivedi, A. (2018): We Carry Guns to Stay Safe: Perspectives on Guns and Gun Violence from Young Adults Living in Chicago’s West and South Sides. Washington, DC: Urban Institute. Retrieved from: https://www.urban.org/sites/default/files/publication/99091/we_carry_guns_to_stay_safe_1.pdf

[22] Author’s analyses of data obtained for Loyola’s study of those arrested for gun crimes in Illinois; Olson, D.E., Stemen, D., Michalak, H., Juarez, S., Ward, A., and Jacobs, L. (2020). Arrests in Illinois for Illegal Possession of a Firearm: Examining the Characteristics and Trends in Arrests for Illegal Possession of a Firearm within the Context of Crimes Involving Guns. Center for Criminal Justice Research, Policy and Practice. Center for Criminal Justice Research, Policy and Practice, Loyola University Chicago. See https://www.luc.edu/media/lucedu/ccj/pdfs/IllinoisGunPosessionArrestBulletinjuly2020[9718].pdf   

[23] Rosenmerkel, Sean, Durose, Matthew, and Farole, Donald (2009): Felony Sentences in State Courts,2006-Statistical Tables. U.S. Department of Justice, Bureau of Justice Statistics. https://bjs.ojp.gov/content/pub/pdf/fssc06st.pdf

[24] Reaves, B. A. (2013): Felony Defendants in Large Urban Counties, 2009-Statistical Tables. U.S. Department of Justice, Bureau of Justice Statistics. https://bjs.ojp.gov/content/pub/pdf/fdluc09.pdf

[25] Governor Quinn Signs Legislation to Reduce Gun Violence, Press Release, July 19, 2010. Retrieved from https://www.illinois.gov/news/press-release.8651.html

[26] Ibid.

[27] Author’s analyses of data obtained through the National Corrections Reporting Program (NCRP): United States. Bureau of Justice Statistics. National Corrections Reporting Program, 2000-2019. Inter-university Consortium for Political and Social Research, 2021-07-15. https://doi.org/10.3886/ICPSR38047.v1

[28] Ibid.

[29] Ibid.

[30] Ibid.

[31] Shannon, S.K.S., Uggen, C., Schnittker, J., Thompson, M., Wakefield, S., and Massoglia, M. (2017): The Growth, Scope, and Spatial Distribution of People with Felony Records in the United States, 1948-2010. Demography, 54: 1795-1818.

 In the past decade, three high-profile trials have revolved around a seemingly straightforward question: can a person take a gun to a location where they are reasonably sure that there will be volatility and even violence, introduce that firearm into a fight, shoot someone in the course of that fight, and then claim self-defense because they were afraid that the other person in the fight would take that gun and use it against the gun owner? In two of those three cases, the answer is “yes”—a self-defense claim led to legal success for Kyle Rittenhouse in 2021 and for George Zimmerman before him, in 2013. In a third case, the ultimate answer was “no,” but only after a lengthy and not altogether reassuring sojourn through the legal system. Travis McMichael, his father, Gregory McMichael, and William “Roddie” Bryan were all convicted of murder in the shooting death of Ahmaud Arbery in November 2021, but nearly evaded arrest and prosecution altogether; the McMichaels were only arrested following the release of damning video footage of the shooting and subsequent public uproar, 74 days after the murder. Bryan wasn’t arrested until 89 days after the shooting.

The success of self-defense claims in Rittenhouse’s and Zimmerman’s trials, and the need for extensive, irrefutable video evidence in order to even arrest the McMichaels and Bryan, point to larger questions about how self-defense is viewed within the text of the law, and how it is actually practicable in everyday life. Performance studies, an academic discipline that uses performance as a lens through which to study human behavior, offers a new way to approach the old question of how facially neutral laws transform when they are lived and enforced by actual humans. Performance is a practice of repetition, whether it is on stage, at a political rally, or in one’s own home; like the law, it gains meaning and currency through iteration. Unlike the law, however, performance is always generated through the body and the event rather than the text.  When used to study the law or legal concepts, this emphasis on lived, embodied practices can offer one method for disentangling how the ambiguity present in the language of the law—particularly an emphasis on a “reasonable belief” that one’s life or property are in danger—means that custom, tradition, and an iterative version of common sense become valid bases for interpreting constitutional rights, including the right to life and the right to bear arms. In a country saturated with firearms and with a long history of anti-Black attitudes, entertainment, and state-sanctioned violence, this calculus basically ensures that self-defense will remain primarily the prerogative of men who are protecting the status quo, and that Black people will remain at greater danger of being perceived as a “reasonable” threat.

Self-defense, as a legal concept, is inherently theatrical. Although the precise wording varies by state and federal statute, we can use the instructions given to members of the jury in Rittenhouse’s recent trial as a general paradigm of the legal requirements of a self-defense claim. A claim of self-defense must meet all the following requirements in order to be considered lawful: 1) “force is used for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his person by the other person”; 2) “the person uses only the amount of force that he reasonably believes…necessary to prevent or terminate the interference”; and 3) “the person may not intentionally use force which is intended or likely to cause death unless he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.” Embedded in these jury instructions, and in the text of the Wisconsin statute that it cites, is the abstract concept of “reasonableness.” Over and over, the jury is reminded to adjudicate claims of self-defense from the perspective of “a person of ordinary intelligence and prudence” and to consider what that person “would have believed in the defendant’s position under the circumstances that existed at the time of the alleged offense.” This requirement draws primarily on two elements of theatricality in order to be legible: first, it centers audience interpretations of the allegedly defensive acts; second, it encourages members of the jury (or, prior to trial, it asks police officers or prosecutors) to imaginatively emplot themselves in the shooter’s mind at the moment they killed or injured someone by firing their gun at them.

Theatricality, of course, is often associated with the theatre, but it is not limited to that arena. Rather, its power extends beyond the realm of the stage and shapes our everyday lives. Theatricality is a transformative, yet quotidian, process that, as performance scholar Josette Féral explains, is “the result of two simultaneous cleavages: between everyday space and representational space” and “between reality and fiction.”[1] That is, theatricality is both what allows audiences to suspend their disbelief and enjoy a performance at face value and what allows those same audiences to identify the artifice that occludes the mechanics that produce the theatrical magic. In everyday life, theatricality can result in a dual consciousness: a recognition that, even as we go about our daily activities, we overcode them with meaning. We recognize that we “perform” differently with our boss than with our spouse and that, while that may indeed be playing a social role, it is not not reality. Comments offered by the Justices in the recent oral argument in New York State Rifle & Pistol Association v. Bruen demonstrate that we already understand public carry as theatrical: Justice Barrett wanted to ensure, for example, that striking down New York’s permitting law would not mean that people could attend New Year’s Eve Festivities in Times Square while armed. While there are logistical reasons to prohibit firearms during those events, surely the right to self-defense does not end on New Year’s Eve nor at the boundaries of Times Square? This suggests that, even for people inclined toward expansive public carry gun rights, there is an inherent understanding that both the everyday and the representational space of Times Square on New Year’s Eve is different. A gun in Times Square communicates—it acts—differently than a gun in rural Maine.

While theatricality helps disentangle the ways that the audience of a gun display might interpret such an act, it also explicates the ways that a gun owner might engage with their firearm, and other people, in a public space. This is similar to the ways that gun owners talk about “living the gun life” of carrying in public. Concealed carry training programs often encourage gun carriers to remain in a mental state of constant surveillance and awareness of their surroundings so that they can neutralize a threat at any moment. Dan Baum, a writer and gun owner who later decided to stop publicly carrying his weapon, suggests that having a gun on his hip “made [his] days a lot more dramatic.” He describes the feeling of constant surveillance and knowledge he could kill at any moment as both a reality and a fiction: “Suddenly, I’m dangerous. I’m an action figure. I bear a lethal secret into every social encounter. I have to remind myself occasionally that my gun is not a prop, a political statement, or a rhetorical device, but an instrument designed to blow a ragged channel through a human being.” Much like an actor, he functions both in everyday space and representational space, balancing the responsibility of carrying a gun with the fanciful and aesthetic experience of being “a little sexier as [I] make [myself] more dangerous.”

Another performance concept that illuminates how gun owners interact with their gun and the public spaces they take it into is restored behavior. Performance scholar Richard Schechner defines restored behavior as “performed actions that people train for and rehearse.”[2] Schechner explains that, while this rehearsal can be seen more easily in ritual and theatre, it can also be identified in everyday life: that is, we rehearse our identities everyday by remixing and performing that which we have seen, and even sensed, before. We learn by repetition, and that repetition soon begins to feel natural, though it remains, essentially, a performance. While describing behavior as “performance” usually signals a devaluation, the concept of restored behavior makes it clear that everything we do—all of our embodied actions—are mimetically recreating other behaviors we have previously witnessed or in which we have participated. This includes things like how we move through a space, how we hold our bodied in interactions with other people, and how we assess our safety or vulnerability in a space. Gun owners, as they train for and imagine themselves in defensive situations, imaginatively emplace themselves in a role—the good guy with a gun. By so doing, they necessarily imagine others as the threat in need of neutralization and rehearse scenarios in which they might righteously wield a weapon. Restored behavior offers a potential way of understanding how gun owners might imagine and, in split-second situations, enact the violence they have rehearsed for—and how imagining oneself as deputized to enact social control might even encourage such violence.

When an act of alleged self-defense escalates to the point that it is adjudicated by the wider public—whether through repeated viewings of videos that circulate on social media and television or the more formal legal processes of arrest, dentition, and trial, which are then disseminated through those same channels—the question of audience immediately becomes a central concern. The audience for an alleged act of defensive violence can really be divided into multiple audiences, two that are constituted at the time of the violence and two that are constituted after the fact. The former category consists of the witnesses who saw the event and can offer eyewitness testimony (sometimes from the receiving end of the violence) and, perhaps most compellingly, the shooter themselves as audience to the victim’s actions that allegedly caused the defensive violence. In the latter category are the post-event audience of the wider public (who become audience members either through viewing video evidence of the event or through descriptions that circulate in the media) and the carceral and legal audiences (the police, lawyers, judges, and jury members who officially assess the event). What each of these audience members experiences as they spectate the allegedly defensive event (in real time or through later reproductions of the event) forms some of their measure of what is a “reasonable” defensive response to alleged provocation.

Audience members do not, however, come to an event as empty slates. Instead, they view incidents from the perspective of “a member of an already constituted interpretive community” and bring with them “a horizon of expectations shaped by pre-performance elements.”[3] If we think of the act of allegedly defensive violence as the “performance” in this construction of audience foreknowledge, then everyone who witnesses that event will see it with some preconceived ideas about self-defense, guns, and threat already in place. Indeed, the meaning of the defensive violence is produced at the nexus of these preconceived notions and the event itself. In the three high-profile occurrences of allegedly defensive violence that opened this essay, and in many instances of defensive violence, attitudes and biases toward racial difference played outsized roles in the foreknowledge that various audience members brought to their spectating of the event after the fact. Audience members may, for example, come to a video or description of an act of allegedly defensive violence with clear ideas of what a “good guy with a gun” would look like. As I have argued elsewhere, the ongoing anti-Blackness that is present in many facets of our everyday lives in the United States—what Christina Sharpe has identified as the “total climate” of anti-Blackness within which we all exist[4]—means that white men with guns are more often identified as “good guys” than Black men with guns are. It also means that Black men are more often viewed as a reasonable threat that requires lethal violence in response, even if they are unarmed.[5]

The fact that defensive gun use seems more “natural” when enacted by some people and in some places is a product of theatricality—those bodies fit the “role” we expect of gun owners, and those spaces can be policed for those who belong and those who don’t. In all three aforementioned high-profile cases of allegedly defensive gun use, the men who fired the guns argued that they were the “good guys” with guns in a volatile situation, and that their introduction of guns into the mix was the only thing that saved their lives. During the trial of Ahmaud Arbery’s killers, defense lawyer Frank Hogue argued that his client, Gregory McMichael, was “in abject fear that he [was] about to witness his only son possibly shot and killed before his very eyes.” Kyle Rittenhouse, testifying in his own trial for murder, described his fear for his safety, collapsing in tears at the memory. Later, in closing arguments, Rittenhouse’s lawyer claimed, “when my client shot Joseph Rosenbaum, he feared for his life.”  And while George Zimmerman did not testify in his own behalf, a juror interviewed after his acquittal recognized the script he was following, saying that she had “no doubt” that Zimmerman “feared for his life” when he killed seventeen-year-old Trayvon Martin in 2012. The repetition of this “script”—that the only person with a gun was, in fact, the one who was most at danger of being mortally wounded—is one way in which the theatricality of repetition starts to actually produce reality. Audiences for future instances of defensive violence see people repeatedly claiming they “feared for their life” in a situation escalated by their own introduction of a gun into the situation and it starts to seem reasonable to fear an unarmed person who is reacting in their own defense to an armed assailant. When called upon to perform their own adjudication, whether in the court of public opinion or in a proper court of law, they now have an expanded “horizon of expectations” for what is appropriate defensive behavior.

Another place that an audience’s pre-formed opinions come in is in determining what is “suspicious” or “threatening” behavior. Often, this assessment comes down to who audience members—particularly the person who shoots someone and then claims self-defense—determine “belongs” in a certain space and what kinds of behaviors are permitted there. In all three cases, the people who were killed were identified by their killer(s) as not belonging in the spaces they were in and as participating in behaviors that made them suspicious: Martin, in the Sanford, Florida gated community in which Zimmerman lived and served as neighborhood watch captain; Arbery, in the Brunswick, Georgia neighborhood that the McMichaels and Bryan were patrolling; and Joseph Rosenbaum and Anthony Huber in the Kenosha, Wisconsin area that Rittenhouse was protecting from alleged “riots.” One aspect of restored behavior is that it naturalizes the way that each of us scans a location and “reads” the situation. We may feel like our assessments are objective and a manifestation of common sense, but, in reality, we are reiterating assessments we have seen, imagined, and even participated in in the past. Prior to entering a space, we each already have a sense of what this space ought to be “normally” and who and what behaviors would represent an incursion into that normality.

Again, because of the United States’ total climate of anti-Blackness, Black men are often identified as not belonging in a space that, in fact, they have every legal right to be in. Their actions are also more often determined to be suspicious, regardless of whether that suspicion was warranted. This was certainly the case with Trayvon Martin. Zimmerman, in his written statement to police, described Martin as “a male approximately 5’11” to 6’2” casually walking in the rain looking into homes.” In reality, Martin was simply walking back to his father’s residence from a nearby convenience store, but Zimmerman’s description—along with his repeated references to Martin as “the suspect”—emplace Martin in the role of an outsider intent on maliciously (lasciviously?) peeping into homes as he sauntered by in the rain. Zimmerman’s 911 call, during which the dispatcher tells him to stay in his vehicle and to not follow Martin, likewise reveals that Martin’s very presence was what made Zimmerman uneasy. “Hey we’ve had some break-ins in my neighborhood,” Zimmerman told the dispatcher, “and there’s a real suspicious guy…This guy looks like he’s up to no good, or he’s on drugs or something. It’s raining and he’s just walking around, looking about.” Martin’s mere existence in a space that Zimmerman felt like belonged to him is what triggered the spasm of violence that would end with Zimmerman shooting and killing Martin. Zimmerman also analyzed Martin’s behavior from the perspective of an audience member interpreting a performance’s meaning. “He’s got his hand in his waistband,” Zimmerman told the 911 dispatcher, “and he’s a black male.” Zimmerman seems to tack on that last bit of information to give context to the behavior of having one’s hand in one’s waistband—there is an implication that a Black man who is touching his waistband is inherently, and understandably, a threat. During the trial, Zimmerman’s lawyers argued that Zimmerman shot Martin while the two struggled over the gun, making it clear that Zimmerman became aware that Martin was unarmed at some point in his pursuit of the teen and the ensuing altercation.

Gregory and Travis McMichael likewise identified Arbery as not belonging right away, describing the 25-year-old Black man as “bold” for daring to enter a house that was under construction and had no windows or doors installed. During his trial, Travis McMichael described his feelings about seeing a video that showed Arbery inside the house on the day the McMichaels murdered him. “Seeing a video of him walking around so nonchalant in that house, kind of, it startled me a little bit…Just catching him creeping through that front yard and obviously trying to avoid detection and then doing what he did there and going into the house and walking around in there like it’s no big deal, that was alarming. […] It’s just bold…it’s a bold move.”  Later, after he and his father had retrieved guns and returned to find Arbery, McMichael claimed he drove up next to Arbery and said, “Hey what’s going on, stop a minute, stop a minute, I want to talk to you.” McMichael continued, attempting to validate his defensive violence through a performance analysis of Arbery’s actions. Arbery was “still running,” McMichael said, and “I noticed at this point he was looking very angry…It wasn’t what I expected with me just coming up and talking to him.” Then McMichael’s assessment becomes even more dependent upon his own interpretation of Arbery’s actions: “It was clenched teeth, closed brow. He was mad, which made me think, something’s happened.” Because neither we nor McMichael can be inside Arbery’s head and we cannot hear his testimony because he is deceased, we as an audience to this event are left interpreting the embodied actions that McMichael claims he saw. Even more than usual, we are asked to use our own preconceived notions to determine whether such behavior rises to the level of a lethal threat that requires lethal violence to neutralize it.

Finally, Kyle Rittenhouse’s case proceeded slightly differently. Rittenhouse has claimed that he traveled to Kenosha during the volatile protests of the police shooting of Jacob Blake, a Black man, in order to “watch over the Car Source,” a local car lot at which several cars had been set on fire during the unrest. Rittenhouse testified that, when he encountered Joseph Rosenbaum (the first man that he killed), Rosenbaum was shouting obscenities, including racial epithets. Later, when Rittenhouse ran into Rosenbaum again, Rosenbaum threw a bag at him. Although the bag, which Rittenhouse says he thought was a chain, did not hit Rittenhouse, the teen turned and pointed his gun at Rosenbaum. Rosenbaum, according to Rittenhouse, was not deterred by this act of brandishment; instead, the man tried to disarm Rittenhouse and the teen fired his weapon, killing Rosenbaum. Here, again, we have an example of a shooter positioning himself as audience to certain behaviors and deeming those behaviors threatening enough to warrant lethal force in response. From Rosenbaum’s perspective, he may have been trying to disarm an active shooter, but, since he did not live through the encounter, his assessment of Rittenhouse’s actions cannot enter into the conversation. Rittenhouse thus becomes the unquestioned determiner of what could be read as threatening in that moment and, therefore, defend his “reasonable” response. This assessment seems doubly certain when we examine Anthony Huber’s actions; in an interview, Huber’s girlfriend said he chased Rittenhouse and tried to disarm him in order to protect her and others around them. It is not a stretch to imagine Huber himself had a reasonable belief that Rittenhouse was dangerous and in need of disarming, since the teen had just shot and killed someone. Nevertheless, once Huber’s testimony can no longer enter into the conversation, only the shooter can describe what contributed to his belief that three different men in three different locations all deserved to be shot because of his assessment of their actions.

Analyzing each of these acts of allegedly defensive violence through the lens of performance reveals how the very definition of self-defense requires that we think like audiences about acts of violence. It also underscores how rehearsing for defensive violence increases the chances that uncomfortable, but probably not otherwise lethal, encounters are escalated by the presence of a firearm. Most importantly, however, it demonstrates how the proliferation of firearms paired with histories of anti-Blackness in the United States foments a volatile social landscape within which self-defense becomes the purview of those who fit the “role” of civilian protector, patroller, or watchman—that is, a male who is aligned with the state. Zimmerman was a neighborhood watch captain who aspired to become a police officer, Rittenhouse was part of a cadet program in his hometown and a vocal Blue Lives Matter supporter, and the McMichaels were both former law enforcement: the father a former officer and the son former Coast Guard. All three shooters styled themselves as provisional police in their encounters; in other words, they self-deputized. Far from this being a failure of the state, it reveals one of the ways that certain people are permitted to police the actions of others, going so far as to dole out lethal punishments for the crime of being in the wrong place with an armed, self-deputized man at the wrong time. 

During and after the Rittenhouse trial, a number of opinion pages and commentators worried about the messages being sent to other young, politically inclined gun owners. But state-sanctioned self-deputization is not new; in fact, it has a long history in the U.S.[6] What these three relatively recent cases of allegedly defensive violence demonstrate is that there is renewed public and legal support for the practice of proactively self-deputizing by determining a threat in a public space, confronting the person one deems threatening, and introducing a gun into that confrontation. As gun laws become even more permissive and our social cohesion continues to fray, it is a fair assumption that more and more Americans will arm themselves and carry those arms in public. Because of the impact of anti-Blackness on our social mores and the stories we tell about ourselves, this accelerating arms race is likely to result in more Black Americans being seen as threatening by those who self-deputize, which is likely to lead to more deaths chalked up to self-defense when they are more appropriately the result of self-deputization by those who see themselves as ancillary agents of the state. Right now, the legal definition of self-defense cannot adequately account for someone starting a fight, killing the person they are fighting with, and then claiming self-defense. Too often, such shooters are not even arrested, as initially happened with both Zimmerman and the McMichaels, or are cleared in a pre-trial hearing without a jury ever even entering in. When such cases do make it to trial, the focus on reasonable belief as the standard for self-defense both rewards lethal, rather than debilitating, gunfire and encourages a focus on only the few moments before the gunfire happened—rather than taking into full account how and why the armed person was where they were and why their introduction of a gun into the situation is not part of the initial aggression. Thinking more deeply about self-deputization, and how our increasing acceptance of guns in public facilitates that process for some Americans at the detriment to others, may help refine and clarify what should be considered a reasonable, and thus legally justified, defensive action.

Click here to view a PDF version of this essay.

Cite as: Lindsay Livingston, From Self-Defense to Self-Deputization: Defensive Gun Use and the Performance of Reasonable Belief, Duke Ctr. For Firearms L.: Second Thoughts Blog (Jan. 7, 2022), https://firearmslaw.duke.edu/2022/01/from-self-defense-to-self-deputization-defensive-gun-use-and-the-performance-of-reasonable-belief.

[Ed. note: This essay is part of a collection of writings from the Center’s 2021 roundtable on Race and Guns in America.]

Notes

[1] Josette Féral, “Theatricality,” SubStance 31.2/3 (2002): 11.

[2] Richard Schechner, Performance Studies: An Introduction, 3rd ed. (New York: Routledge, 2013), 28.

[3] Susan Bennett, Theatre Audiences: A Theory of Production and Reception, 2^nd ed. (New York: Routledge, 1997), 139.

[4] Christina Sharpe, In the Wake: On Blackness and Being (Durham, NC: Duke University Press, 2016), 21.

[5] Although the men who Kyle Rittenhouse killed and injured were all white, the location of the shooting at a Black Lives Matter protest and the designation of those killed and injured as looters and rioters, with all the racial baggage those terms carry, means that the event must be read through the lens of anti-Black racial conflict in the United States.

[6] Wilbur R. Miller, “A State within ‘The States’: Private Policing and Delegation of Power in America,” Crime, Histoire & Sociétés/Crime, History & Societies 17.2 (2013): 125-135.

The theory of interest convergence, articulated first by Professor Derrick Bell in a Harvard Law Review article, states that “the interests of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites.”[1] Using the landmark school desegregation case of Brown v. Board of Education[2] as an example, Bell argued that the country’s shift away from segregation in schools was occasioned more by America’s need to demonstrate its moral superiority to communist nations during the Cold War and the impetus to help industrialize the south,[3] than by sudden appreciation for the immorality of segregation.[4] Interest convergence theory applies to many forms of racial inequity and injustice beyond school desegregation. Modern day adherents of Bell’s theory continue to find ulterior motives among all efforts toward social and legal advancements for African-Americans.[5]

It’s possible to view interest convergence as a highly cynical description of the political process when it comes to racial equality. But one might also view it as a pragmatic tool to help effect social change, or at least to identify the underlying conditions that make change possible. If the interests of African Americans on a particular issue converge with White majoritarian interests, then that alignment can be harnessed to produce a mutually beneficial result. 

It is with this latter view that we might approach the disheartening and steady scourge of police violence against civilians in the United States, and the disproportionate impact it has on Black and Latino communities. One response to law enforcement’s use of excessive force has been the refrain that “Black Lives Matter,” often accompanied by a rallying cry to defund or abolish the police. Police advocates and supporters have responded with a slogan of their own, somewhat of a non-sequitur, that “Blue Lives Matter.” In this essay, I argue there is a point of convergence between the interests of those who want to reduce excessive force incidents—most notably shootings—against (disproportionately Black male) civilians and the interests of police officers who claim to shoot in protection of their lives. That point of convergence is disarmament, and it begins with the police.

Among the recent outcries to defund,[6] and in some circles, to abolish[7] the police in the United States, one argument that has not been made seriously is that of disarming the police. This may sound like a far-fetched thought experiment but hear me out. This Essay proceeds in three parts. I argue first that there is ample precedent for police disarmament as many countries around the world have fully or partially disarmed their law enforcement officers. Second, I show that concerns for officer safety have been greatly exaggerated. And that, in any event, disarmed police forces sufferer few fatalities than do American police officers. And third, I consider some positive direct and collateral consequences of disarming the police.

Nineteen Jurisdictions Have Disarmed Police Forces

American police forces would not be alone in disarmament. Eighteen nations and one U.S. territory (the U.S. Virgin Islands) maintain police forces who do not carry firearms in the ordinary course of their duties.[8] The countries include Botswana, Fiji, Iceland, Ireland, Malawi, Marshall Islands, New Zealand, Norway, Samoa, and the United Kingdom, among others.[9] Among these, I aptly focus on the United Kingdom, as it is the system of government and socio-cultural norms most similar to that of the United States.

In the United Kingdom (including England, Wales, Scotland but not Northern Ireland) only a small group of highly trained officers carry firearms. Among the 135,301 full-time officers in England and Wales, 6,543 (4.8%) were armed as of March 2021.[10] In Scotland, 3.04% of officers are authorized to carry firearms. The percentage is only much higher in Ireland but remains only at approximately 20% of officer qualified to use firearms.[11]

Nor are these police officers clamoring for guns. One study revealed that 82% of Police Federation^[12] members surveyed said that they did not want officers to be routinely armed, even though nearly half also said then they had faced life threatening situations within the last three years. Remarkably, these officers felt safer without guns. New Zealand officers also have reason to feel safer. One professor calculated that it was safer for police not to carry weapons.[13] This is true despite New Zealand’s relatively higher level of citizen gun ownership as compared to other countries—though not compared to the United States ownership figures. Iceland’s gun ownership rate rivals the United States, with approximately one-third of the citizens owning guns while police officers do not.[14]

Officers may ultimately be safer when they were not armed—but so is the public. Consider the number of fatal police shootings in England and Wales in 2018 to 2019: only three.[15] In Norway, there were only two deaths in the more than ten years spanning from 2002 to 2014.[16] On the other hand, the United States has approximately 1000 (approximately, because the U.S. does not keep reliable records on this^[17]) fatal officer shootings per year. Even accounting for differences in population, police officers in the United States carry out more than 50 times the number of fatal shootings as British officers. When Icelandic police shot a man in 2013, it was said to be the first time police had fatally shot a person in the country’s history.[18] These differences are worthy of attention.

How do other countries—some highly industrialized, some ethnically diverse with large urban centers, some with high levels of gun ownership, some with similar common law criminal law principles—have such different approaches to armed policing? American police officers approach every encounter with the public on the assumption that that they are in a war zone and every individual—man, woman or child—is armed until proven otherwise. This approach has serious ramifications for policing and for public and officer safety.

Are American Police Officers Generally in Great Danger?

Contrary to civilians, police are not fatally shot in high numbers

The primary objection to police disarmament is likely to be that officers need their guns for safety and that any proposal to disarm them fails to take officer safety seriously. As noted above, jurisdictions in which police officers do not generally carry guns actually involve fewer officer fatalities, even in populations with high rates of gun ownership. But more importantly, it is important that we begin to dismantle the myth that police officers are in constant and immediate danger. Policing is an incredibly stressful and difficult job that demands patience, integrity and professionalism. They deserve our gratitude. However, most officers are not typically harmed by civilians on the job.[19] According to the data collected by the Federal Bureau of Investigations in the Uniform Crime Reports for the decade spanning from 2011 to 2020, a total of 503 police officers were feloniously killed in the line of duty.[20] That’s an average of approximately 50 officers killed each year.[21] These deaths are certainly tragic but to understand the scope of the problem, it is worth noting that the statistics for 2020 encompass 9,895 agencies and cover 505,212 officers.[22] It is probable that the guns police carry have some deterrent effect and help account for the low police deaths, but it’s unclear how much of that deterrence is achieved by the high resolution rates and aggravated sentences for crimes against police officers. 

In contrast, data regarding civilian deaths at the hand of police tell a different story. For the years 2015-2021—a considerably shorter subset of the decade described above—police officers shot and killed 6,810 people.[23] While the number of fatalities ranged from 1021 to 865 depending on the year, on average, 972.86 people were fatally shot by police per year. This figure does not account for death by other means, shootings that do not result in death or other forms of assault or excessive use of force. In other words, the number of civilians that police fatally shoot each year is nearly 20 times more than the number of officers killed feloniously by all means each year.

Firearms Pose Great Danger to Blue Lives

While the danger to officer lives is not nearly as high as many suppose—and certainly not as high as the danger to civilian lives in a police-civilian encounter—the reality is that guns play an outsized role in all of these deaths.

The greatest danger to police lives at the hand of civilians are firearms and the rise in gun ownership. Of the 503 officers killed in the last 10 years, 458 were killed with firearms. And 17 of those officers were killed with the officer’s own firearm. The biggest danger to civilian lives is the excessive use of force using firearms in large part because of officer exaggerated—but perhaps genuinely held—assumptions regarding the dangerousness of civilians.

These are dangerous assumptions. But they grow truer every day. According to the best gun sale data collected by the FBI using firearm background checks statistics, gun sales were up by 26% in 2021,^[24] over the already 40% increase in gun sales from the previous year. This is a not a pandemic-inspired trend. Indeed, gun sale figures have risen in most years since 1999, the first full year that the FBI has tracked these figures. There are not only more gun sales, but there are also more gun owners. Approximately 20% of these sales were made by new gun owners,^[25] with presumably less training and experience.

The police officer’s fear of civilians with guns is not unfounded. In 2020, 42% of American households possessed at least one firearm.^[26] Gun control laws are one answer. Some studies^[27] have shown that gun control laws correlate with lower rates of homicide by police officers, who fear that civilians may be carrying a weapon. While it doesn’t prove causation, the correlation between the rate of gun ownership and the rate of police shootings suggests that police feel safer—and thus we would all be safer—with fewer guns per capita.

Police training could be one answer to this problem, but that’s unlikely. Arguably, officers could be educated about the fact that most gun owners keep their firearms at home for protection.  Although 36% of American adults now own guns, only 18% of gun owners carry their firearms daily. Unfortunately, the efficacy of police training in many areas—from implicit bias to de-escalation to threat perception failure—has been controversial in both progressive and conservative circles. There is little evidence that it would be a solution here, especially when officers perceive their lives to be at risk. A better solution for everyone would be to enact reasonable limitations on the number of firearms with which police officers have to contend. 

Where Blue Lives Interests Converge with Black Lives—Gun Control

When police officers assume that more civilians are packing, they are more likely to use force, and thus more likely to use excessive force. Gun control laws—licensing requirements, age limits, mental health restrictions—might alleviate some of the unnecessary sense of dangerousness. Of course, some argue that the opposite is true—that gun control laws only restrict access of law-abiding civilians but do not deter those who are prepared to violate the law anyway and therefore such laws do not enhance public safety or officer safety. 

However, the problem with an overflow of guns is that even well-intentioned officers cannot always differentiate between law abiding citizens who have legal firearms and criminals who do not. This is especially true when race enters the picture. Both Black and White officers are more likely to assume that a Black person is carrying a gun, and that a Black person carrying a gun is a criminal than they are to assume this of a White person. This is known as a “threat perception bias”^[28] and is based in part on stereotypes that equate Blacks with criminality and dangerousness. Despite their enormous and very public failures, police officers are actually better at this than the average untrained civilian. But they are not nearly good enough.

Police shootings continue to rise, and they impact all lives. Statistics^[29] show that although African-Americans were killed by police in 2020 at far higher rates than other groups, more Whites were fatally shot by cops (457) than African-Americans (241) and Latinos (169) combined. The race and ethnicity of 154 victims that year were classified as “other” or “unknown,” but all these lives matter. Even when police shootings are deemed justifiable—which occurs far too often in the eyes of the public—the trauma of taking a life will impact officers greatly. Studies^[30] of war veterans reveal that although the fear of dying is often traumatic, bearing “responsibility for ending the life of another human is a significant source of trauma” as well. In other words, killing is bad for police officers too. Black and Blue Lives interests converge when fewer civilians are armed and fewer police are armed. 

Disarmament should ideally be part of a larger gun control policy. Although some other countries manage to have unarmed police officers while also having high rates of civilian gun ownership, that would be politically difficult in the United States. Police officers might feel more willing to give up their firearms if civilians gun ownership were more reasonably regulated. Moreover, gun control laws will be needed to discourage any increased vigilantism. Individuals like Kyle Rittenhouse, Michael Zimmerman, and Greg and Travis McMichael all viewed themselves as replacing absent or ineffectual law enforcement when they killed their victims. One concern is that more civilians will resort to self-help by taking the law into their own hands if police officers are not carrying firearms.

Additional Benefits to Disarmament

I have argued above that a disarmed police force is feasible (many other countries do it), that police lives are not in inordinate danger, and that high rates of armament among law enforcement and the public is bad for everyone, particularly racial minorities. But there are other benefits to disarming the police. I turn to these now.

First, we should acknowledge that one reason for the calls to defund and abolish the police have much to do with the sense that the regulation of police violence and the excessive use of force has been a failure. Law enforcement agencies do a poor job of regulating police misconduct generally and the criminal justice system is no better. In the United States, police officers are issued firearms and are generally left to self-regulate their use. This is not hyperbole. Officers receive significant training about when and how to unholster, use and discharge their weapons but ultimately the barometer for police use of force is left to their sense of what is objectively reasonable in the moment.  

Consider the fact that the Fourth Amendment—largely believed to regulate the use of excessive force—only regulates force when seizures are involved.[31] And yet, both the Fraternal Order of Police and the International Association of Chiefs of Police reject the notion that police use of force should be regulated by any standard beyond the Fourth Amendment-derived notion that an officer’s own sense of the “objective reasonableness” of their behavior.[32] If police cannot effectively self-regulate firearms use, then removing that option from the table may be a good second-best solution.

A second benefit of disarmament is the impact it would have on training. Police forces that are not armed focus much more on de-escalation training, community policing strategies and other forms of combat. This would be a welcome move away from the hyper-masculine militaristic stance that characterizes many American police forces today.[33] Experts agree that police training is critical to the re-imagination of policing. Again, investments in better training would be mutually beneficial to police and the public.

Third, a conversation about disarming the police, even if it seems politically far-fetched to many, can begin us thinking concretely about the benefits of partial disarmament. Most jurisdictions that do not have armed police officers maintain a cadre of armed task forces, marshals or special operatives who carry firearms. Police officers can carry firearms for tasks that are known to be dangerous. Relatedly, there are officers for whom disarmament can be prioritized. While beyond the scope of this Essay, commentators have raised questions about the necessity of armed police in schools and universities, on transit system, in traffic stops to name a few. In other words, disarming the police does not have to be an “all or nothing” proposition to begin reaping some rewards.

American municipal police departments—as opposed to the U.S. Marshalls service, regional sheriffs or state rangers —have not always been armed. It wasn’t until the late 1800s that local and city agencies started issuing firearms broadly to its officers and training officers to use them.[34] The advent of technology, from the automobile or the computer or video camera, has changed policing considerably over the years. The industrialized production and accessibility to firearms has been one of those changes. It may be time to examine the drawbacks of that change and consider a modification.

Click here to view a PDF version of the essay. 

Cite as: Margareth Etienne, Disarming the Police: Blue Lives, Black Lives and Guns, Duke Ctr. For Firearms L.: Second Thoughts Blog (Jan. 5, 2022), https://firearmslaw.duke.edu/2022/01/disarming-the-police-blue-lives-black-lives-and-guns. 

[Ed. note: This essay is part of a collection of writings from the Center’s 2021 roundtable on Race and Guns in America.]

Notes

[1] Derrick Bell, Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv. L. Rev. 518, 523 (1980).

[2] Brown v. Board of Ed. of Topeka, Shawnee County, Kan., 347 U.S. 483 (U.S. 1954).

[3] Id. at 524-25.

[4] Id.

[5] Alexis Hoag, Derrick Bell’s Interest Convergence and the Permanence of Racism: A Reflection on Resistance, Harvard Law Review Blog (Aug. 24, 2020), blog.harvardlawreview.org/derrick-bells-interest-convergence-and-the-permanence-of-racism-a-reflection-on-resistance/.

[6] Defund the Police, https://defundthepolice.org/ (last visited Dec. 21, 2021).

[7] Ben Kesslen, Calls to reform, defund, dismantle and abolish the police, explained., NBC News (Jun. 8, 2020), https://www.nbcnews.com/news/us-news/calls-reform-defund-dismantle-abolish-police-explained-n1227676.

[8] Philip Alpers and Michael Picard, Guns in the United States: Routine Arming of Police, GunPolicy.org (Sep. 24, 2021), https://www.gunpolicy.org/firearms/compare/194/police_use_of_firearms/ (add countries from left column, then click “compare” hyperlink to generate table).

[9] Id.; see also Jon Kelly, Why British police don’t have guns, BBC News Magazine (Sep. 19, 2012), https://www.bbc.com/news/magazine-19641398 [https://perma.cc/A24H-AMNF].

[10] GOV.UK, Police use of firearms statistics, England and Wales: April 2020 to March 2021 second edition (Jul. 22, 2021), https://www.gov.uk/government/statistics/police-use-of-firearms-statistics-england-and-wales-april-2020-to-march-2021/police-use-of-firearms-statistics-england-and-wales-april-2020-to-march-2021.

[11] Rick Noack, 5 countries where most police officers do not carry firearms – and it works well, Wash. Post (Jul. 8, 2016), https://www.washingtonpost.com/news/worldviews/wp/2015/02/18/5-countries-where-police-officers-do-not-carry-firearms-and-it-works-well/.

[12] Kelly, supra note 9.

[13] Noack, supra note 11.

[14] Id.

[15] Number of fatal shootings by police in England and Wales from 2004/05 to 2018/19, Statista (Jun. 8, 2021), https://www.statista.com/statistics/319246/police-fatal-shootings-england-wales/.

[16] Adam Taylor, Norway gave its cops guns. After 1 year, it’s taking them away. What did it learn?, Wash. Post (Feb 5, 2016), https://www.washingtonpost.com/news/worldviews/wp/2016/02/05/norway-gave-its-cops-guns-after-1-year-its-taking-them-away-what-did-it-learn/.

[17] Tom McCarthy, The uncounted: why the US can’t keep track of people killed by police, The Guardian (Mar. 18, 2015), https://www.theguardian.com/us-news/2015/mar/18/police-killings-government-data-count [https://perma.cc/9MA6-LY86].

[18] Noack, supra note 11.

[19] Policing doesn’t make the top twenty list of most dangerous jobs according to the U.S. Bureau of Labor Statistics; it comes in at 25 after construction workers, pilots, drivers, farmers, landscapers, and the like. See Table 5. Fatal work injury rates per 100,000 full-time equivalent workers by selected occupations, 2019-20, U.S. Bureau of Lab. Stat., (Dec. 16, 2021), https://www.bls.gov/news.release/cfoi.t05.htm.

[20] FBI, 2020 Uniform Crime Report: Law Enforcement Officers Feloniously Killed, https://crime-data-explorer.app.cloud.gov/pages/downloads (under “Law Enforcement Officers Killed and Assaulted Annual Reports,” select “Officers Feloniously Killed” from the leftmost dropdown menu, then select the year “2020” from the next dropdown menu, then click the “download” hyperlink to download the report).

[21] Officers are assaulted in much larger numbers than they are killed, . See id. In 2019 for example, 17,188 officers sustained injuries from assaults. These assaults were typically with hands, fists or feet, but 3.8% were assaulted with firearms. Of that 3.8 %, 5.6% sustained injuries from firearms. Id.

[22] FBI, 2020 Uniform Crime Report: Law Enforcement Officers Assaulted, https://crime-data-explorer.app.cloud.gov/pages/downloads (under “Law Enforcement Officers Killed and Assaulted Annual Reports,” select “Officers Assaulted” from the leftmost dropdown menu, then select the year “2020” from the next dropdown menu, then click the “download” hyperlink to download the report).

[23] Police Fatal Force Database, Wash. Post (Dec., 16, 2021),  https://washingtonpost.com/graphics/investigations/police-shootings-database/.

[24] Douglas A. McIntyre, Gun Sales Reach 19 Million: Here’s Every State Ranked, 24/7 Wall St (June 4, 2021), https://247wallst.com/consumer-products/2021/06/04/gun-sales-reach-19-million-heres-every-state-ranked/ [https://web.archive.org/web/20211110175345/https://247wallst.com/consumer-products/2021/09/04/gun-sales-top-27-million-every-state-ranked/].

[25] Edward Helmore, US gun sales spiked during pandemic and continue to rise, The Guardian (May 31, 2021), https://www.theguardian.com/us-news/2021/may/31/us-gun-sales-rise-pandemic [https://perma.cc/WSB4-2YXN].

[26] Gun Ownership in the U.S. 1972-2020, Statista (Nov. 24, 2020), https://www.statista.com/statistics/249740/percentage-of-households-in-the-united-states-owning-a-firearm/ [https://perma.cc/4F52-ATR4].

[27] Aaron J. Kivisto et al, Firearm Legislation and Fatal Police Shootings in the United States, 107 Am. J. of Pub. Health, 1068 (June 7, 2017), https://ajph.aphapublications.org/doi/10.2105/AJPH.2017.303770 [https://perma.cc/C3BU-T2L6].

[28] Cynthia Lee, Race, Policing, and Lethal Force: Remedying Shooter Bias with Martial Arts Training, 79 Law & Contemp. Probs., no. 3, 145 (2016), https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4796&context=lcp [https://perma.cc/5RNS-9764].

[29] Rates of fatal police shootings U.S. 2015-2021, by ethnicity, Statista (Nov. 1, 2021), https://www-statista-com.proxy2.library.illinois.edu/statistics/1123070/police-shootings-rate-ethnicity-us/ [https://perma.cc/A2LV-WBM7].

[30] Robert T. Muller, Death Becomes Us: The Psychological Trauma of Killing, Psych. Today (Feb. 21, 2014), https://www.psychologytoday.com/us/blog/talking-about-trauma/201402/death-becomes-us-the-psychological-trauma-killing [https://perma.cc/25MD-NV2Z].

[31] Seth W. Stoughton, The Regulation of Police Violence, 70 Emory L.J. 521, 523-25 (2021).

[32] Id. at 523.

[33] See generally Frank Rudy Cooper, “Who’s the Man?”: Masculinities Studies, Terry Stops, and Police Training (2009), 18:3 Colum. J. Gender & L.  671 (2009).

[34] See Scott W. Phillips, A Historical Examination of Police Firearms, The Police Journal: Theory, Practice & Principles  122-24 (April 10, 2020); David LaPell, A Brief History of America’s Police Sidearms in Guns.com (June 30, 2011), at https://www.guns.com/news/2011/06/30/a-quick-history-of-americas-police-sidearms.

We are excited to begin rolling out the essays from the Center’s recent roundtable on Race and Guns in America. The essays are impressively rich and thoughtful, offering various descriptions and diagnoses (and some prescriptions) for the persistent problems that arise in a country flooded with guns and saturated with systemic racism.

Starting tomorrow, we will publish one essay each day on the blog (excluding Mondays, when we publish the SCOTUS Gun Watch), with an accompanying link to a PDF version of the post. The titles of the essays are below, and we’ll update this page with the final links to all the essays once the series is complete. [Updated with links.]

We are very grateful to the authors for their time, contributions, and engaging dialogue on a difficult subject.

• Daniel S. Harawa, The Racial Justice Gambit
• Margareth Etienne, Disarming the Police: Blue Lives, Black Lives and Guns
• Lindsay Livingston, From Self-Defense to Self-Deputization: Defensive Gun Use and the Performance of Reasonable Belief
• Gregory S. Parks, When CRT Meets 2A
• Angela R. Riley, Native Nations and The Right to Bear Arms in a Post McGirt World
• Pratheepan Gulasekaram, “The People”, Citizenship, and Firearms
• Patrick J. Charles, Some Thoughts on Addressing Racist History in the Second Amendment Context
• Kami Chavis, The Dangerous Expansion of Stand-Your-Ground Laws and its Racial Implications
• David E. Olson, Illegal Firearm Possession: A Reflection on Policies and Practices that May Miss the Mark and Exacerbate Racial Disparity in the Justice System
• Brennan Gardner Rivas, The Problem with Assumptions: Reassessing the Historical Gun Policies of Arkansas and Tennessee

Despite the deadly effects of firearms, ordinary civilians can often own and publicly carry them with far less training than is required of peace officers. A peace officer and a civilian are both capable and authorized by law to use a publicly carried weapon in a deadly manner. Yet, civilians can frequently access these deadly instruments with minimal or even no training. What might justify this disjunction between civilian and peace officer requirements? Does peace officers’ accountability to the public necessitate that they are more trained than the public they are meant to serve? Does the Second Amendment’s historical backdrop create a hesitation to regulate the citizenry to the extent that the law governs state agents? Have the ongoing policy aims of the political left and right to hold peace officers to higher standards and strengthen Second Amendment rights, respectively, facilitated two uncoordinated and divergent policy agendas? As the number of permitless carry states increases,[1] the gap between civilian training requirements and peace officer qualification requirements only widens.

I surveyed six states’ requirements for peace officer qualification and civilian firearms training: Texas, Georgia, New York, Maryland, Rhode Island, and California. Of these states, California, Rhode Island, and Maryland each require civilians to undergo some training before purchasing a firearm or carrying a concealed weapon. The table below describes state-mandated firearms training requirements for civilians, state-mandated firearms qualification requirements for all peace officers, and additional/modified firearms training requirements for peace officers in large cities (specific departments denoted in parentheses) within the respective states. Civilian prerequisites for the concealed carry of a firearm, rather than firearm ownership, are indicated with an asterisk. The concealed carry policies of states that lack civilian training requirements are classified as “may-issue,” “shall-issue,” or “permitless carry.” Any other distinctions, including those between ongoing training rather than qualification requirements, are indicated.

The disjunction most prominently appears in states without civilian training requirements. In Texas, a permitless carry state, peace officers are still subject to annual requirements that include an external inspection of their weapon’s functioning, a demonstration in its maintenance, and a course of fire. In Georgia, a shall-issue state without civilian training requirements, peace officers are subject to three hours of annual firearms training. The disjunction is comparatively narrow in states with civilian training requirements, with the possible exception of Rhode Island. Because Rhode Island’s unique policy permits police departments to develop alternative training proposals, civilians may be subject to more strenuous requirements than peace officers in some cases. Nonetheless, civilians can generally publicly carry a firearm with less training than is required of peace officers.

In response to the political and racial salience of police shootings, some have advocated increased peace officer training requirements.[2] However, peace officers appear to already receive significantly more firearms training than civilians, despite the capacity of both civilians and peace officers to use firearms in a deadly manner. This analysis does not seek to endorse the sufficiency of each state’s existing firearms training requirements for peace officers but instead highlights the comparative insufficiency of civilian firearms training requirements.

[1] See Many States are Pushing Through More Permissive Gun Laws, Economist, May 1, 2021, https://www.economist.com/united-states/2021/05/06/many-states-are-pushing-through-more-permissive-gun-laws. (stating that in the past twenty years the amount of states with permitless carry laws have risen from one to twenty).

[2] See Not Enough Training, Institute for Criminal Justice Training Reform, https://www.trainingreform.org/not-enough-training.

[3] Texans Can Carry Handguns Without a License or Training Starting Sept. 1, After Gov. Greg Abbott Signs Permitless Carry Bill Into Law, Texas Tribune, Aug. 16, 2021, https://www.texastribune.org/2021/08/16/texas-permitless-carry-gun-law/.  

[4] Tex. Admin. Code § 218.9(b), https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=37&pt=7&ch=218&rl=9.

[5] Tex. Admin. Code § 218.9(c)(1), https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=37&pt=7&ch=218&rl=9.

[6] Dallas Police Academy, Basic Training Curriculum 2, https://dallaspolice.net/joindpd/Shared%20Documents/DPD%20Basic%20PO%20Course%20Curriculum%20-%207-9-18%20-%20MASTER.pdf.

[7] Dallas Police Academy, Basic Training Curriculum 2, https://dallaspolice.net/joindpd/Shared%20Documents/DPD%20Basic%20PO%20Course%20Curriculum%20-%207-9-18%20-%20MASTER.pdf.

[8] Dallas Police Academy, Basic Training Curriculum 4, https://dallaspolice.net/joindpd/Shared%20Documents/DPD%20Basic%20PO%20Course%20Curriculum%20-%207-9-18%20-%20MASTER.pdf.

[9] Dallas Police Academy, Basic Training Curriculum 4, https://dallaspolice.net/joindpd/Shared%20Documents/DPD%20Basic%20PO%20Course%20Curriculum%20-%207-9-18%20-%20MASTER.pdf.

[10] Dallas Police Academy, Basic Training Curriculum 4, https://dallaspolice.net/joindpd/Shared%20Documents/DPD%20Basic%20PO%20Course%20Curriculum%20-%207-9-18%20-%20MASTER.pdf.

[11] Dallas Police Academy, Basic Training Curriculum 4, https://dallaspolice.net/joindpd/Shared%20Documents/DPD%20Basic%20PO%20Course%20Curriculum%20-%207-9-18%20-%20MASTER.pdf.

[12] Dallas Police Academy, Basic Training Curriculum 4, https://dallaspolice.net/joindpd/Shared%20Documents/DPD%20Basic%20PO%20Course%20Curriculum%20-%207-9-18%20-%20MASTER.pdf.

[13] Ga. Code § 16-11-129, https://codes.findlaw.com/ga/title-16-crimes-and-offenses/ga-code-sect-16-11-129.html.

[14] Ga. Comp. R. & Regs. 464-5-.03.1, https://casetext.com/regulation/georgia-administrative-code/department-464-georgia-peace-officer-standards-and-training-council/chapter-464-5-training/rule-464-5-031-annual-firearms-training.

[15] Ga. Comp. R. & Regs. 464-5-.03.1(b)(1), https://casetext.com/regulation/georgia-administrative-code/department-464-georgia-peace-officer-standards-and-training-council/chapter-464-5-training/rule-464-5-031-annual-firearms-training.

[16] Ga. Comp. R. & Regs. 464-5-.03.1(b)(2), https://casetext.com/regulation/georgia-administrative-code/department-464-georgia-peace-officer-standards-and-training-council/chapter-464-5-training/rule-464-5-031-annual-firearms-training.

[17] Ga. Comp. R. & Regs. 464-5-.03.1(b)(3), https://casetext.com/regulation/georgia-administrative-code/department-464-georgia-peace-officer-standards-and-training-council/chapter-464-5-training/rule-464-5-031-annual-firearms-training.

[18] Ga. Comp. R. & Regs. 464-5-.03.1(b)(4), https://casetext.com/regulation/georgia-administrative-code/department-464-georgia-peace-officer-standards-and-training-council/chapter-464-5-training/rule-464-5-031-annual-firearms-training.

[19] Georgia Police Officer Standards and Training Council, Semi-Auto Pistol Qualification Course.

[20] Training Academy, Atlanta Police Department, https://joinatlantapd.org/training-academy/.

[21] N.Y. Penal L. § 400(1)(l), https://www.nysenate.gov/legislation/laws/PEN/400.00.

[22] N.Y. Penal L. § 400(2)(f), https://www.nysenate.gov/legislation/laws/PEN/400.00.

[23] N.Y. Crim. Proc. § 2.30(1), https://www.nysenate.gov/legislation/laws/CPL/2.30.

[24] Firearms and Tactics Section, New York City Police Department, https://www1.nyc.gov/site/nypd/bureaus/administrative/training-firearms-and-tactics.page.

[25] Firearms and Tactics Section, New York City Police Department, https://www1.nyc.gov/site/nypd/bureaus/administrative/training-firearms-and-tactics.page.

[26] Md. Public Safety Code § 5-117.1(d), https://codes.findlaw.com/md/public-safety/md-code-public-safety-sect-5-133.html.

[27] Md. Public Safety Code § 5-117.1(d), https://codes.findlaw.com/md/public-safety/md-code-public-safety-sect-5-133.html.

[28] Md. Code Reg. 29.03.02.05(C), http://mdrules.elaws.us/comar/29.03.02.05.

[29] Md. Code Reg. 29.03.02.05(C)(1), http://mdrules.elaws.us/comar/29.03.02.05.

[30] Md. Code Reg. 29.03.02.05(C)(2), http://mdrules.elaws.us/comar/29.03.02.05.

[31] Md. Code Reg. 29.03.02.05(C)(3), http://mdrules.elaws.us/comar/29.03.02.05.

[32] Md. Code Reg. 29.03.02.05(C)(4), http://mdrules.elaws.us/comar/29.03.02.05.

[33] Md. Code Reg. 12.04.02.04(B)(1), http://mdrules.elaws.us/comar/12.04.02.04.

[34] Md. Code Reg. 12.04.02.04(B)(3)(a), http://mdrules.elaws.us/comar/12.04.02.04.

[35] Md. Code Reg. 12.04.02.04(B)(3)(b), http://mdrules.elaws.us/comar/12.04.02.04.

[36] Md. Code Reg. 12.04.02.04(B)(3)(a), http://mdrules.elaws.us/comar/12.04.02.04.

[37] Md. Code Reg. 12.04.02.04(B)(5), http://mdrules.elaws.us/comar/12.04.02.04.

[38] Baltimore Police Department, Policy 409 Firearms Regulations 1 (2016), https://www.baltimorepolice.org/sites/default/files/Policies/409_Firearms_Regulations.pdf.

[39] R.I. Gen. Laws § 11-47-35, http://webserver.rilin.state.ri.us/Statutes/TITLE11/11-47/11-47-35.HTM.

[40] R.I. Dept of Env’t Management, R.I. Handgun Safety Certification Process 1, http://www.dem.ri.gov/programs/bnatres/fishwild/pdf/blue-card-testing-locations.pdf.

[41] R.I. Gen. Laws § 11-47-15, http://webserver.rilin.state.ri.us/Statutes/TITLE11/11-47/11-47-15.HTM.

[42] R.I. Gen. Laws § 11-47-15.3(a), http://webserver.rilin.state.ri.us/Statutes/TITLE11/11-47/11-47-15.3.HTM.

[43] R.I. Gen. Laws § 11-47-15.3(a); R.I. Gen. Laws § 11-47-15.3(c), http://webserver.rilin.state.ri.us/Statutes/TITLE11/11-47/11-47-15.3.HTM.

[44] Providence Police Department, General Order 310.01 12 (2019), https://www.providenceri.gov/wp-content/uploads/2019/01/310.01-Department-Issued-Authorized-Weapons.pdf.

[45] Providence Police Department, General Order 310.01 10 (2019), https://www.providenceri.gov/wp-content/uploads/2019/01/310.01-Department-Issued-Authorized-Weapons.pdf.

[46] Bureau of Firearms, Cal. Dep’t of Just., Firearm Safety Certificate Study Guide 1 (2020), https://oag.ca.gov/system/files/media/hscsg.pdf.

[47] Cal. Penal Code § 26165(a)(1), https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=26165.

[48] Cal. Penal Code § 26165(a)(2), https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=26165.

[49] Cal. Penal Code § 26165(a)(3), https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=26165.

[50] Cal. Penal Code § 832(a), https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=832.

[51] Commission on Peace Officer Standards and Training, Training and Testing Specifications for Learning Domain #35 Firearms/Chemical Agents 1 (2020).

[52] Commission on Peace Officer Standards and Training, Training and Testing Specifications for Learning Domain #35 Firearms/Chemical Agents 1 (2020).

[53] Commission on Peace Officer Standards and Training, Training and Testing Specifications for Learning Domain #35 Firearms/Chemical Agents 2 (2020).

[54] Commission on Peace Officer Standards and Training, Training and Testing Specifications for Learning Domain #35 Firearms/Chemical Agents 3 (2020).

[55] Commission on Peace Officer Standards and Training, Training and Testing Specifications for Learning Domain #35 Firearms/Chemical Agents 3 (2020).

[56] Commission on Peace Officer Standards and Training, Training and Testing Specifications for Learning Domain #35 Firearms/Chemical Agents 1 (2020).

[57] Commission on Peace Officer Standards and Training, Training and Testing Specifications for Learning Domain #35 Firearms/Chemical Agents 6–10 (2020).

[58] Academy Training, City of Los Angeles, https://per.lacity.org/joinlapd/selection.cfm?section=academytraining.

I’m very happy that the video is now available from our terrific discussion last fall with Jennifer Carlson on her compelling new book, Policing the Second Amendment: Guns, Law Enforcement, and the Politics of Race. Drawing on local and national newspapers, interviews with close to eighty police chiefs, and a rare look at gun licensing processes, Carlson explores the ways police talk about guns, and how firearms are regulated in different parts of the country. Examining how organizations such as the National Rifle Association have influence police perspectives, she describes a troubling paradox of guns today – while color-blind laws grant civilians unprecedented rights to own, carry, and use guns, people of color face an all-too-visible system of gun criminalization. This radicalized framework — undergirding who is “a good guy with a gun” versus “a bad guy with a gun” — informs and justifies how police understand and pursue public safety. The moderated discussion is followed by a Q&A.

On Tuesday, November 10th from 12:30pm to 1:30pm the Center is hosting a book discussion with Jennifer Carlson, Associate Professor of Sociology and Government & Public Policy at the University of Arizona on her recently published book, Policing the Second Amendment: Guns, Law Enforcement, and the Politics of Race.

Here’s a description of the book:

Drawing on local and national newspapers, interviews with close to eighty police chiefs, and a rare look at gun licensing processes, Carlson explores the ways police talk about guns, and how firearms are regulated in different parts of the country. Examining how organizations such as the National Rifle Association have influence police perspectives, she describes a troubling paradox of guns today – while color-blind laws grant civilians unprecedented rights to own, carry, and use guns, people of color face an all-too-visible system of gun criminalization. This racialized framework—undergirding who is “a good guy with a gun” versus “a bad guy with a gun” —informs and justifies how police understand and pursue public safety.

We will have a moderated discussion followed by a Q&A.

To sign up, please register here: https://bit.ly/3jYUVVw

Since May, millions of demonstrators have taken to the streets to protest the killing of George Floyd and the countless other victims of police violence. In response, they’ve been met with armored vehicles, helicopters, and law enforcement officers decked out in tactical gear. With law enforcement agencies looking more like military forces than local policemen, these demonstrations have reopened the dialogue about escalating police militarization.

In the context of police militarization, there is perhaps no program as widespread or as controversial as the “1033 program.” This federal program, which provides Department of Defense (“DOD”) equipment to law enforcement agencies at no cost, received a fair share of scrutiny in 2015 following the Ferguson unrest. Although it underwent some reform as a result, billions of dollars of property have been transferred through the program since then. This post provides a quick look at the 1033 program and some of the publicly available information provided by the DoD.

The 1033 program, codified at 10 U.S.C. § 2576a, is the primary vehicle by which law enforcement agencies obtain military equipment. The program allows the DoD to transfer its excess property to federal, state, and local law enforcement agencies at no cost other than what is required for transfer and maintenance. This property includes “vehicles, helicopters, weapons, ammunition and other property that is needed by law enforcement agencies.”

Originally passed in Section 1033 of the National Defense Authorization Act for 1997, the program was initially an extension of a counter-narcotics program, intended to be used in the War on Drugs. Today, the statute expresses a preference towards applicants intending to use the equipment in counterdrug, counterterrorism, and border security activities, but the program is not restricted to such activities.

As of 2020, $7.4 billion worth of property has been transferred to federal, state, and local law enforcement agencies. Around 8,200 agencies from 49 states and 4 U.S. territories currently take advantage of the program, with Hawaii being the only state not participating. Last year, 92% of the property provided through the 1033 program was considered “non-controlled” property, or property without any military attributes: things like furniture, first aid kits, sleeping bags, and computers. The remaining 8% is known as “controlled property,” because it is transferred conditionally or on loan from the DoD. Controlled property includes night vision equipment, small arms, tactical vehicles, and aircraft, and is the type of property most relevant to the discussion of police militarization. Controlled property has been making up a higher proportion of 1033 equipment transfers over the past few years. Additionally, although controlled property makes up a smaller percentage, a majority of the most transferred items and the most expensive items are all controlled.

Following public outrage during the Ferguson unrest, President Obama issued Executive Order 13688 in January 2015, which established a working group to help address some of the concerns regarding law enforcement acquisition of military equipment. Following the recommendations of this working group, the DoD implemented a series of reforms to the 1033 program, including the creation of a prohibited items list. The program also began requiring law enforcement agencies to obtain certification of protocols on appropriate use, training, maintenance, sustainment, and accountability. President Trump revoked Obama’s executive order in August 2017, which rescinded all of the working group’s recommendations. Despite this, the DoD has chosen to keep most of the reforms, only removing some items off of the prohibited items list such as bayonets and tracked armored vehicles.

The prohibited items list today consists of: “[A]ny aircraft, vessels or vehicles that inherently contain weaponry, (e.g. tanks, Bradley fighting vehicles, armed drones); crew served/large caliber (.50 caliber or greater) weapons and ammunition; military uniforms; body armor; Kevlar helmets; and explosives or pyrotechnics of any kind.” Besides these prohibitions, some of the DoD’s equipment may need to be modified for more specific law enforcement use before it is transferred. For example, firearms are often converted from fully automatic to semi-automatic, and armored vehicles are stripped of their weapons.

Advocates of the program claim that the use of military-style equipment represents a safer and more effective way of handling the dangerous situations that police officers face, and assert that it has a positive impact on public and officer safety. However, the verdict is still out regarding the accuracy of these claims. While some studies attribute a decrease in crime rates to an increase in military aid and transfers, others have found it to “provide no detectable benefits in terms of officer safety or violent crime reduction, on average.” While there are some contradictory results in this respect, studies do seem to agree that police militarization is often correlated with increased shootings and violence by officers. Some researchers have suggested that “officers with military hardware and mindsets will resort to violence more quickly and often.”  Consequently, even if police militarization does decrease crime, that benefit might be negated by the increase in police violence.