Bob Owens of Bearing Arms asked me to comment on a news piece by one Michael Edison Hayden on the subject of the police shooting of Keith Lamont Scott in Charlotte NC a few days ago: “Presence of a Gun Alone Was Not Enough to Disarm Keith Lamont Scott, Legal Experts Say.”

The theme of the piece bears the usual hallmarks of anti-gun propaganda: Step one, create a straw man argument as if it had been presented by the police as justification for shooting Scott—in this case that a black man can be lawfully shot by police if he merely has a gun present.

Step two, quote purported legal authority to destroy the straw man argument.

Step three, with the straw man destroyed conclude that the police acted wrongly in their shooting of the black man—coincidentally (?) promoting the false Black Lives Matter political narrative that there is an epidemic of police gunning down black suspects for no reason other than institutional racism.

Hayden managed to find a couple of law professors whom he uses to both frame and destroy his straw man argument, thus executing steps one and two. Step three is necessarily implied.

The two law professors cited by Hayden are E. Gregory Wallace, a professor at Campbell University School of Law in North Carolina, and Joseph Kennedy, a law professor at the University of North Carolina. In the interests of full disclosure, in 2014 Professor Wallace invited me to speak at Campbell at a Second Amendment event. Both he and Campbell were kind and generous hosts. My interaction with Professor Wallace would strongly suggest that his comments in this piece of “journalism” were presented in an inaccurate or incomplete context.

What is certain is that the words of Professors Wallace and Hayden as printed in the context provided by Hayden’s piece have little to do with the legal or tactical realities involved in the use of force by police in dealing with non-compliant armed suspects in general or the shooting of Scott in particular.

Hayden constructs his straw man argument in the same paragraph in which he introduces the professors, writing “they agreed that short of brandishing a gun, the presence of a handgun on Scott would not on its own justify an attempt by officers to disarm him.”

The reason this qualifies as a straw man argument is that the police have never claimed that they were justified in shooting Scott on the mere basis of the “presence of a handgun on Scott.” Disproving this never-made argument therefore in no way shows that the police lacked legal justification for the shooting of Scott.

To put it another way, the entire premise of Hayden’s act of “journalism” is a lie. It’s simply a variation of the “hands up, don’t shoot” lie made infamous following the justified and necessary shooting of Michael Brown in Ferguson MO.

Hayden goes on to quote Professor Wallace as stating, “The mere display of a firearm in the city of Charlotte doesn’t give police cause to detain or disarm a citizen.” This follows some brief discussion on the open carry of handguns in public, and the observation that North Carolina allows for public open carry.

Having met Professor Wallace, I seriously wonder whether he might have been misquoted, or if accurately quoted whether in hindsight he would have spoken more precisely given the opportunity. Unfortunately, the exact wording of the statement as quoted by Hayden provides excessive opportunity to obfuscate the legal and practical reality of open carry, particularly in the context of the Scott shooting.

Open carry is intended to allow for the carry on one’s person of a handgun in a manner open to public view. It is NOT intended to allow for the public display of a handgun in one’s hand. The latter fully qualifies as unlawful brandishing or disorderly conduct at the very least, because it would be reasonably expected to cause fear of imminent harm in people observing such conduct.

That this is true is obvious to anyone who considers even a uniformed police officer engaged in such conduct. We all routinely see uniformed officers with handguns holstered on their belts, and this sight causes not the slightest bit of alarm. If we were to see a police officer present his handgun from the holster and display it in his hand, however, any reasonable person would infer that deadly violence was very possibly imminent. Brandishing and “mere presence” or not the same thing.

If imminent violence is reasonably inferred from a police officer brandishing a firearm in public, it may certainly be inferred from a non-officer doing the same. A private citizen open carrying a handgun in a holster in public is obviously an entirely different matter than is a private citizen bearing a handgun in their hand in public, especially when that citizen is being non-compliant with lawful police orders, as was Scott.

It naturally follows that if Scott was observed in public with a gun in hand he certainly was acting in a manner sufficient to raise the reasonable suspicion necessary for the police to lawfully detain and disarm him while they investigate his conduct, and Scott would have been required by law to comply with their orders consistent with such a stop.

That Scott was in fact bearing a gun in his hand when approached by police is supported by audio captured as events unfolded. As Hayden himself reports, “Officers can be heard shouting, ‘Drop the gun!’ in the video.” It is not reasonable to believe that the officers were shouting “Drop the gun!” at a suspect who did not apparently have a gun in hand.

Hayden goes on to quote the second law professor, Kennedy, as stating, “Having a gun makes you armed, but it doesn’t necessarily make you dangerous.” This observation is irrelevant to the Scott case unless one also takes into consideration that Scott was non-compliant with lawful police orders to drop his gun. Police officers are well within the bounds of reasonable conduct to infer that an armed man with a gun in hand who is refusing lawful orders to drop his gun presents an imminent threat of death or grave bodily harm to themselves and the public.

Hayden also attributes to Kennedy the statement that “without a gun in Scott’s hand, the shooting of him should be considered ‘grossly negligent’ on the part of police.”

Hayden further claims Professor Wallace said “if it could be determined that Scott had his weapon in his holster at the time of the shooting, it would be a ‘game changer,’ noting that it would not have put the police in enough danger to warrant shooting him.”

Both of these statements are utter legal and practical nonsense.

Let us set aside for the moment the evidence that Scott did in fact have a gun in his hand (“Drop the gun!”), and imagine that the gun was still in Scott’s holster. There is absolutely no legal requirement that the police must wait until an obviously armed and non-compliant suspect actually has their gun in their hand before the police can use deadly force to defend themselves and the public.

Rather, the law permits the police to use deadly force to defend themselves and the public against a reasonably perceived imminent threat of deadly force. A holstered gun more than qualifies as such an imminent threat when possessed by a non-compliant suspect who makes an apparent motion to reach for the gun contrary to police orders. This police use of defensive force would be lawful even if the combative suspect never managed to actually close his hand on his holstered weapon.

Furthermore, as a simple practical matter it seriously endangers the lives of our officers to suggest that they have or should have any such legal requirement to wait until the noncompliant suspect has his gun in hand. A suspect can retrieve a gun from a holster and fire it at an officer in perhaps a second, all while the officer has to first observe, understand, and react to the suspect’s attack. That’s quite a difficult tactical challenge even if the officer already has his own gun drawn, as the suspect’s action almost always beats the officer’s reaction. Keep in mind that the consequence of “losing the draw” is the likely the life of the officer or member of the public who might be struck by that suspect’s bullet.

Now imagine how much worse the situation would be if the officer was required to wait until the attacking suspect actually had his gun in hand. The officer would have not a second but mere tenths of a second in which to react in defense. This would be a superhuman feat that cannot be reasonably expected of our police officers.

Advocating that our police have to place their lives at such risk when facing non-compliant armed suspects can only lead to increased unnecessary deaths of officers who are acting lawfully to protect the public.

Hayden goes on to write that Professor Kennedy “spoke critically of open-carry laws and said that the laws put both citizens and police officers in an ‘impossible situation’ because of the legal justification for citizens to be armed in public.”

This, too, is utter nonsense. There is a very “possible” option available to anyone who is open carrying a handgun who finds themselves the subject of police orders—comply with those orders, keep your hands in plain sight and away from your handgun, and do nothing that could be reasonably perceived by the officers as representing a threat to their lives or the lives of the public. Easy-peasy. Should it later turn out that the police acted unlawfully in stopping and detaining you, that’s a matter most prudently dealt with through the courts and after the fact, when a momentary mistake in judgment made under stress is unlikely to cost a human life.

That’s all I have time for at the moment, as actual work calls. Thanks to Bob for providing the opportunity write in on this matter.

Attorney Andrew Branca and his firm Law of Self Defense have been providing internationally-recognized expertise in American self-defense law for almost 20 years in the form of books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.

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