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Excerpted from: SpearIt, Firepower to the People! Gunrights & the Law of Self-defense to Curb Police Misconduct, 85 Tennessee Law Review 189 (Fall, 2017) (317 Footnotes) (Full Document


SpearitBut today's blanket condemnation of resistance toward officers cloaks a more complicated national history, one that celebrates--selectively--individual rights to refuse compliance with state agents ... When viewed alongside the common law right to resist unlawful arrest once widely recognized in the United States, and alongside the recently resurgent Second Amendment right to bear arms, the Fourth Amendment's treatment of resistance as a license for officers to use force seems less self-evident, and perhaps, less defensible.

This Article represents a polemic against the most harmful aspects of the policing status quo. At its core, the work asserts the right of civilians to defend against unlawful deadly police conduct. It argues that existing gun and self-defense laws provide a practical and principled basis for curbing police misconduct. It also examines legislative trends in gun laws to show that much of most recent liberalizing of gun rights is a direct response to self-defense concerns sparked by mass public shootings. The expansion of gun rights and self-defense comes at a time when ongoing police killings of Black civilians menace public opinion of the police and killings that result from ambush-style execution of a warrant.

This Article posits that expanded gun rights and self-defense law can lead to greater police accountability such that civilians are empowered in the streets, in their homes, and in courts, with knowledge of their rights against police. The central thrust of the work is that expanded lawful gun possession by educated carriers increases the potential for legal gun possessors and carriers to intervene--not only to prevent mass killings, but also to counter unlawful bodily harm by police. Hence, this Article contemplates how existing law can be used to achieve more just outcomes, underscores that gun rights are at the core a self-defense issue, and maintains that sometimes police are the trigger for the use of self-defense.

As the above lyrics suggest, the problem of police misconduct is nothing new. Neither is the biological instinct to self-defend. The words articulate a base presumption that a legitimate self-defense claim offered a legal shield for resisting unlawful and injurious conduct by police. Hence, when Marley claims he shot the sheriff, he is relying on a self-defense claim against the unlawful, deadly police force of Sheriff John Brown. This Article fathoms how the expansion of gun rights and expansion of education in self-defense can chill police misconduct and lead to better outcomes in policing. In Marley's time, the likelihood of an individual owning a gun was slight. But, in today's America, it is estimated that there are more guns than people in the country,with an increasing number being carried in public.The positive aspect perhaps is that more people “packing” potentially means more opportunities for public intervention to help stop not just the Columbines and Sandy Hooks of the world, but also the Sheriff Browns.

Of course, considering recent and shocking attacks against Dallas, Texas police forces that left at least five officers dead, such an exposé may seem untimely.Not to mention an ambush two weeks later on police in Baton Rouge, Louisiana, which left three more officers dead.To be certain, illogical, cold-blooded killing is not the subject of this Article. Those cases were indiscriminate ambushes on police that left innocent officers dead. This Article, by contrast, is about the fundamentals of rational conduct. It is not about visiting terror upon police, but genuine instances where police conduct calls for a response in self-defense--it is about the police aggression that sparked the Dallas protest in the first place. As this Article will highlight, many national headline cases give instances in which civilians may have been justified in using force against police. Simultaneously, as one researcher notes, “those who believe allowing private citizens to carry concealed weapons will endanger the lives of law enforcement officials do not even have anecdotal evidence to support them ... we have no examples of law-abiding citizens with concealed weapons assaulting police officers.”

Many critical questions drive this work. First is the obvious: what are the social implications of laws that expand gun rights? Although studies have tried to measure gun violence levels after the enactment of gun legislation, few efforts have focused on the impacts on police. Moreover, what does this will to armament imply for the post-Trayvon era, where police and police-want-to-be alike can apparently kill Blacks at will?Beyond, can gun rights be consciously combined with self-defense principles to stem police abuses? Such questions are of heightened importance in jurisdictions that allow open-carry and those that allow carrying on school campuses.

This Article points to some of the interests at stake in the answers. For example, public discourse typically frames the will to arms in terms of public safety and the Second Amendment right to bear arms. More civilians arming themselves for defense purposes has converged, in some ways, with civil-rights campaigns and organizations like Black Lives Matter and Color of Change. These movements have been sparked by the ongoing police killings of Black civilians. Arming for self-defense was a central Black Panther practice, which was developed as a means of protecting against excessive police force. As such, these groups' interests converge with interests of the National Rifle Association [NRA] and other gun enthusiasts who push for expanded gun rights and less government regulation. Whether these groups accept this strange bed fellowship is uncertain, but the convergence in interests is clear.

The argument unfolds in several steps. First, it begins with Exercising Self-Defense: Under Law of Color, which focuses on how racial bias is evident throughout the criminal justice system. Second, the argument examines two self-defense cases that show the stark racial disparity in the use of self-defense against police. Next, Gun Rights Logic explores the most recent wave of gun-carrying legislation as a reaction to mass public shooting. As the legislative histories suggest, self-defense was a central concern of the law making. The final section provides a backdrop of the legal principles of self-defense law. Police as Trigger, the Very Tyranny the Second Amendment Meant to Check holds that there are indeed times when police wrongdoing calls for a response in self-defense. In these instances, citizens are often held to a higher standard than police, which seems backward in a democratic society. Today's legal landscape is not the common law of kings, but a place where citizens have the right to repel state tyranny. When a civilian defends against police, a jury's decision can mean the difference between a life or death sentence, or freedom. These realities point to the importance of citizen education in gun and self-defense law. Education for Self-preservation & Maximizing Rights advocates street law programs as a potential means of educating civilians and police on a grassroots platform. This section also examines some of the obstacles to the feasibility of successfully defending against police. Finally, Toward a Future of Hope and Despair offers some concluding remarks on the viability of defending against police. It looks forward to prospects for reducing violence and to leaving the reader aware of how the need for protection from the police is real, and all too often, lacking.

Robust gun rights combined in praxis with self-defense may be a natural deterrent to police abuses that increases accountability. As one scholar has argued, police brutality is an organizational problem that must be remedied with systemic solutions as opposed to resorting to “rogue” or “rotten apple” narratives about police conduct:

First, it is factually inaccurate to focus on individual [police] deeds, and ignore the organization, in analyzing the causes of police conduct. Law enforcement organizations have cultures--commonly held norms, social practices, expectations, and assumptions--that encourage or discourage certain values, goals, and behaviors. Police agencies are culpable if they tolerate cultures that promote conduct that is morally or legally objectionable.

The expansion of public education in self-defense law promises a means of reducing police misconduct nationwide.In addition, there is the promise of putting more power into the hands of the people in jury boxes across the country, where indictments and acquittals take place. It also promises more civilian ownership of policing efforts--including the policing of police. Understanding the difference between criminal violence against police and a civilian's lawful right to self-defend will be critical moving forward in today's new law-and-order climate. Whether such a movement can manifest may depend on whether the public is willing to hold police as equally, if not more, accountable than civilians. After all, the police are hailed as professionals, not civilians; and above all, the law should afford leniency to the people. The law today has this equation reversed. The current law allows the state countless fatal errors with hardly any recourse for civilians, while a civilian's mistake in turn is usually met with the full brunt of the criminal justice system and its killing machine.

[. . .]

This Article offers a theoretical framework for grassroots curbing of police misconduct. The plan involves combining existing laws with understanding how they can interact and be consciously used toward greater social justice. In essence, this Article advocates public praxis that maximizes benefits at the intersection of lawful gun possession and lawful self-defense. Whether these ideas can manifest only time will tell, but if history is any indication, there will be victoriesand defeats that make this thesis sometimes seem sensible, and other times, silly.

Perhaps the most important normative point is that there must be space for self-defense, especially against the police. A correlative point is that in all instances of violence in society, police should be held to higher standards compared to civilians. They are the ones with training and temperament that should make violence a last resort. Instead, violence is the first resort, particularly when it comes to minorities. “African Americans often experience the Fourth Amendment as a system of surveillance, social control, and violence, not as a constitutional boundary that protects them from unreasonable searches and seizures.”On this point, social science evidence shows that people around the world are more likely to obey the law when they have the moral authority, in addition to the legal basis for telling them what to do.At the present, it is backwards when it comes to minority communities who see citizens being killed and, if they attempt to fight back, pay an exacting price to the state.

Police should not be afforded greater deference nor protected as a special class--they are the hand of the state, which should always be held more accountable, while all leniency should go to civilians. Indeed, there is not even a system of professional licensing and decertification for police officers, who may be terminated in one geographical area, but hired on the force of a different department.“Officers are entrusted with the power to use deadly force to enforce the law. They should use this power sparingly and with an eye to causing the least amount of harm.”This naturally leads to the question of whether police might work to minimize contacts with civilians since, as one scholar notes, Terry stops are “probably the most common negative interactions that citizens have with the police.”For many Americans it is almost never a good idea to engage with police voluntarily, which suggests that many of the lawful contacts by police are in fact unwanted. Beyond these considerations, it may also be worth asking:

whether suspicion of any legal violation merits a forcible police intervention. Instead of prosecuting police officers, we might ask them to do less--to give up on protecting the country from the scourge of broken taillights, for example, and to focus more narrowly on addressing the most serious forms of criminal conduct.

Such police pretenses and misconduct inspire attacks against police, the likes of which reveal a radicalization occurring in America.It has been well over a decade since researchers reported that disparities in treatment of minorities contribute to lower opinions of police legitimacy.In recent times, police persecution of Black communities has amplified and helped manufacture ambushers who are willing to die to kill police officers. Additionally, this urges officers whose training has been described as encouraging a warrior mentality, which likely leads most of these officers to consider the people they are supposed to serve, the enemy.Hence, while politicians and political pundits decry terrorism committed in the name of race or religion, police brutality might rightly be seen as a radicalizing force.

Video recordings will likely help to push these issues along, and hopefully result in reforms that increase both civilian and officer safety. The ability of mass citizens to record police encounters is already changing the Americans' commentary and debate about the criminal justice system. More citizens armed with video recorders promises to help deter police misconduct even further. More video recordings of these encounters will be powerful evidence for juries to evaluate self-defense claims. Even more promising, the recordings might prompt prosecutors not to press charges against an individual who claims self-defense. Video recordings, however, are not a guarantee since they can shape public opinion in favor of police, which tempers their force. Noting that the Rodney King beating was captured on video but that all police officers were acquitted, one scholar describes that “[v]ideotape is not a deterrent, particularly when it can be stopped, started, and edited to conform to a narrative that excuses police misconduct.”

Finally, the killings of police officers, no matter how important the issue is, should not be subject to a “blue lives matter” campaign. Such a posture is flawed not only because it suffers from the same infirmities as “all lives matter” slogans or any others that diminish the power of the Black Lives Matter campaign. The idea poaches from the violence and oppression visited upon Black civilians. To appropriate this language is to present police as suffering the same victimization as Blacks have, which is untenable in the age of the “warrior cop.”To say that “blue lives matter” is to suggest that police need special protection as a class, which only dilutes the real problems faced by communities.

Associate Professor, Thurgood Marshall School of Law, Texas Southern University.

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