Steve Russell

Thinking About Slogans: The Heated Gun Debate

Most gun deaths are not about good guys and bad guys – they are simply about guns

After lawyering up and making sure that nothing in his narrative would conflict with video evidence—and don’t take this to be a criticism, just a complaint that it’s not two-way—the officer who shot Philando Castile spoke through his attorney.

He said the killing had nothing to do with race and everything to do with the presence of a gun. Therefore, had the deceased not had a pistol permit, his chances of being alive today would substantially improve.

The police officer who killed Castile said the gun was responsible. This is not a rhetorical trick. To say that the only thing that stops a bad guy with a gun is a good guy with a gun ignores that most gun deaths are not about good guys and bad guys. They are simply about guns.

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The greater share of gun deaths are suicides, mistakes, and accidents. The Center for Disease Control broke down firearms deaths in 2010 at 61 percent suicide, 35 percent homicide, and 4 percent accidents. There are mistakes hidden within that 35 percent figure, leaving very little room for good guys using guns on bad guys.

The proposition that suicides will choose another method and get the job done has been studied to death (no pun intended) and it’s not true. And, as Molly Ivins used to say, when was the last time somebody got killed cleaning his knife?

Look at that video and listen to that officer’s voice. His state of mind is obvious. If being notified the civilian had a gun did that, he’s too tightly wrapped to be a law enforcement officer. Ditto seeing a gun in the possession of somebody with a permit—and that could be anybody since the NRA got its way and most states “shall issue” a permit unless a disqualification appears within a stated time.

If you believe what the officer said, a gun rather than a person killed that victim. His own gun.

The officer also said it was a pretext stop, apparently for a broken taillight but actually suspicion of armed robbery. Pretext stops used to be illegal, but it’s now both legal and common to follow somebody you want to stop and wait for them to make an error. Changing lanes without signaling, “exhibiting acceleration,” inspection sticker out of date, trailer hitch obscuring license plate—as long as the pretext is real, it no longer matters that it was a pretext.

For the record, I was opposed to the line of cases that legalized pretext stops and I was very opposed to the SCOTUS case that approved a custodial arrest for a traffic violation when the “perp” is willing to sign the promise to appear AKA “ticket.”

It’s uncontested that the deceased told the officer he had a permitted weapon. In Texas, you are required to do that. I don’t know about Minnesota, but if I were the cop that’s information I would rather have.

It’s not required by law that you then hang your empty hands out the window, but that’s the only SOP I can come up with that might have saved the young man’s life.

There’s an exception to the hearsay rule for an “excited utterance,” something blurted out under the influence of a stressful event before the speaker has a chance to get a story together or even consider the possible need.

Which brings me back to lawyering up and making sure the story fits the video evidence. If I’m going to represent somebody I want to be consulted ASAP and as I ask them what happened I will have let them know what the video says happened.

The officer did nothing wrong when he asserted his rights; the lawyer did nothing wrong when he divulged the contents of the videos, as I’m pretty sure he did.

Contrast the only other adult witness. She was removed in handcuffs, her child taken away, and subjected to a long interrogation while still under the immediate influence of what she saw and how close she was when she saw it. She had no lawyer present and the police had no obligation to tell her exactly what was going on. Meaning what she was suspected of, if anything. Where her child was.

This woman appeared to have it together pretty well, all things considered. But if she didn’t, an experienced interrogator could have gotten her to implicate herself in the disappearance of Jimmy Hoffa and make her deceased boyfriend a narcotics kingpin.

Contrast again what would happen if she had been born to the class of people that has a lawyer on speed dial. The lawyer who is at the other end of the speed dial would call a lawyer who is of lower status in the legal profession because he or she does criminal cases and say who called and that the fee was guaranteed.

The second lawyer would immediately head for the cop shop to do the number two drill, the aggressive one, the demanding one.

The number one drill is you notify the detectives in whichever division would have the case that you represent X and you ask them not to interrogate X outside of your presence, understanding that they will do as they please and the courts will ratify it because the right to counsel belongs to the defendant, not the lawyer.

In the number two drill you make yourself obnoxious until you get to see your client, up to and including going outside the chain of command or doing things that might draw the attention of the reporter on the crime beat if you are in a city big enough to have one.

You throw elbows to get to your client because you know most arrests do not result in trials.

When trials happen, they are competing narratives—stories—about what happened. Often, once everybody’s stories are set in concrete—such that if the story changed, the speaker would have major ‘splainin’ to do for the jury—it’s clear that the prosecutor should not go forward or the defense lawyer should focus on cutting the best deal possible.

Much of what happens to arrive at that point in an officer-involved shooting takes place on an atypical playing field that is severely tilted. Even police operating totally in good faith often do not notice the tilt, because the tilted reality is where they live.

A cop who recognizes that tilt in the system is as exceptional as the white person who recognizes white privilege. A fish does not recognize “wet.”

For the same reason a fish does not recognize wet, most Americans do not consider the presence of firearms at all unusual, and they respond to the idea that an inanimate object can be a proximate cause of a crime to be absurd.

Note that I said a proximate cause and not the proximate cause. An event can have many proximate causes. In the case of a gun homicide, the gun is both a proximate cause and something that can be removed by public policy.

The Second Amendment does not mean the government can’t regulate firearms, just that the government must have a good reason for the regulation. Just like the First Amendment does not mean speech cannot be criminal. You can advocate armed revolution, but if you threaten a specific person with harm and you have the immediate means to carry out the threat, the First Amendment will not save you from jail.

The Second Amendment, for example, will not strike down a ban on firearms where alcohol is being served. The hope is that bar fights will be limited to fists, but there will always be bar fights.

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When the government declares a “gun free zone,” it gets accused of creating a free fire zone where all the potential victims are disarmed. Maybe so, but it also creates a zone where, should a law enforcement officer notice a firearm, it’s not necessary to wait until it is pointed at a victim. The gun itself becomes cause for arrest.

The gun lobby, which can deploy as much money as most lobbying shops, normally can sway legislators simply by pointing at their political bankroll. But to keep their special privileges, they must also sway ordinary voters, and for that they use cute slogans, most of which turn around on a dime if given a dime’s worth of thought.

While it’s true that people kill people, guns also kill people.

It’s also true that when guns are outlawed, only outlaws will have guns. Sometimes that’s a good result, as in declaring gun free zones.

Any judge who thinks gun free zones are such a bad idea as to be irrational and therefore unconstitutional will have more credibility if the first place made safe for gun-toting is a courtroom. The opinion should also probably claim that the judge will never be influenced by looking around and seeing interested parties packing heat.

It will be easier to believe a judge who says, “You can have my gavel when you pry it from my cold, dead fingers.”

Steve Russell, Cherokee Nation of Oklahoma, is a retired Texas trial court judge and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.


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Thinking About Slogans: The Heated Gun Debate