Thanks to Bob for allowing me to respond to Andrew Branca’s earlier post, Legal Expert: Of Course the Keith Lamont Scott Shooting Was Justified. Mr. Branca was critical of an ABC News article in which I was quoted several times.

To begin with, I’m a fan of Andrew Branca. I invited him to speak on firearms and self defense at Campbell University School of Law, where I teach. I require students every year in my Firearms Law and the Second Amendment class to watch the video of his excellent talk, and I urge my students to purchase his book.

Because I teach and write in these areas, reporters sometimes contact me to ask my opinion about firearms law, the Second Amendment, and police encounters. As Mr. Branca knows, when you speak to a reporter, there is no guarantee that the article will come to the conclusions you want, or even that you will be quoted accurately.

Mr. Branca reads the ABC News article as “anti-gun propaganda” that mounts a roundabout attack on the lawfulness of the shooting of Mr. Scott, a black man, by the Charlotte police. I understand his point and think he probably is right. But I want to clarify my comments in the article and examine a couple of Mr. Branca’s points.

The Charlotte police made two critical decisions the day of the shooting—first, the decision initially to approach Mr. Scott in an attempt to forcibly disarm him, and second, the decision to shoot Mr. Scott. My comments to the reporter, with one exception, were about the first decision, not the second. I addressed only the police’s initial approach to Mr. Scott—i.e., what justification did they have for moving toward him in the first place with their guns drawn. A close read of the ABC News article makes this clear.

At first, the only statement from the Charlotte police was that they saw Mr. Scott sitting in the car, he got out of the car, at which time officers saw that he had a firearm in his hand, and then he got back into the car. The police then drew their weapons and attempted to forcibly disarm him. They gave no other reason for approaching Mr. Scott.

The Fourth Amendment prevents police from detaining and disarming a person for investigatory purposes without reasonable suspicion that the person is engaged in criminal activity or otherwise dangerous. The ABC News article quoted me as saying that the mere public display of a firearm in a state where open carry of firearms is legal, without more, does not give police sufficient justification to forcibly detain and disarm that person. That is a correct statement of the law, as explained in recent cases from the Third, Fourth, Sixth, and Eighth federal circuits and from state courts in Tennessee and Kentucky.

Mr. Branca says that simply holding a gun in one’s hand in public gives the police reasonable suspicion necessary for the police to lawfully detain and disarm while they investigate the person’s conduct. I’m not so sure.

If Mr. Scott was “brandishing” a firearm, the police would be justified in initially advancing on him. But brandishing a firearm typically means more than merely holding it in your hand.

Federal law, for example, defines brandishing to mean that the person is pointing, waving, or displaying the firearm in a threatening manner. At common law, the crime of going armed to the terror of the people requires more than the mere display of a firearm. The person must display or hold the gun in an aggressive, menacing, or threatening manner.

To be sure, whether a person legally can open carry a firearm while holding it in his hand may be subject to specific rules in certain jurisdictions. In Texas and some other states, where open carry is authorized by state statute, the law requires that a handgun be holstered. (Some states in the late nineteenth century, such as Arkansas and Tennessee, actually required the carrying of an army or navy pistol in the hand rather than in a holster.). But there is no requirement that openly-carried weapons be holstered in North Carolina, where the right to open carry was established by a 1921 state supreme court decision interpreting the state constitution.

Mr. Branca is a smart man and an expert on self defense law. Perhaps he can point me to cases where police lawfully detained and disarmed a person in a jurisdiction where open carry is legal simply because that person held a firearm in his hand in public in a non-threatening manner.

To my knowledge, neither the Charlotte police nor any witness has said that Mr. Scott was brandishing a firearm or otherwise displaying it in an aggressive or threatening manner when the police initially observed him. Something more was needed, in my view, to justify the initial police approach to Mr. Scott to detain and disarm him.

Under Fourth Amendment law, the police would have been justified in initially approaching Mr. Scott if they had seen him display a weapon while engaging in other criminal activity. Several days after the shooting, the Charlotte police announced that they first observed Scott to be rolling a marijuana blunt and then saw the gun. If this is true, then the police had legal cause to approach

Mr. Scott. The combination of the marijuana and the gun would give the police reasonable suspicion that Scott was a criminal or dangerous.

I said as much in the ABC News article. I also pointed out that none of the videos show any of the events—the rolling of the blunt or display of the firearm—that supposedly gave the police legal cause to approach Mr. Scott in the first place. While I have no reason to doubt the veracity of the police account, this would not be the first or last time that police falsely claim to see or smell marijuana to justify an investigatory detention. Count me just a little skeptical.

Now to the shooting itself. Even if the initial police approach to Mr. Scott was not justified, his actions after the police approached still could give the police legal cause to shoot. The dash cam video shows Mr. Scott exiting his vehicle with his hands at his side, wearing an ankle holster.

The Charlotte police chief said that the video does not show conclusively whether Mr. Scott has a gun in his hand, although the police are heard to shout “Drop the gun!” Mr. Scott appears to back away, still with his arms at his side, and he is shot several times.

If Mr. Scott had a gun in his hand, even though he was not pointing it at the police, and failed to follow police orders to drop the gun, the shooting was legally justified. A non-compliant suspect holding a gun poses a reasonable threat of danger to the police and public. That should not be controversial.

My only comment about the shooting to the ABC News reporter was when I hypothesized that if the gun was in Mr. Scott’s ankle holster rather than in his hand (which I didn’t think it was), then it could be a “game changer,” because a court could rule that the police were not in sufficient danger to shoot.

Mr. Branca calls my statement “utter legal and practical nonsense.” He says that “[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.”

I agree that if Mr. Scott’s gun was holstered and he had reached for the gun contrary to police orders, the shooting would be lawful. That’s not even a close call. But the video does not show Mr. Scott reaching for his holster, and I assumed that in my holster hypothetical. Mr. Branca changed the hypothetical to add a factor I had not included, and then called my answer to the hypothetical “nonsense.”

Even if Mr. Scott’s weapon remained in the ankle holster and he did not reach for it, Mr. Branca says that the shooting was justified because Mr. Scott still could have drawn the weapon quickly.

He makes a strong argument for this result, one that the police officer’s lawyer no doubt would make in court. Again, I’m not as certain of this as Mr. Branca. Courts consider the totality of circumstances. Given the fact that Mr. Scott would have had to retrieve the gun from an ankle holster rather than his belt and that he apparently was not making any other threatening movements when he was shot, but actually was backing up (watch the video), a court could rule a shooting at this point unjustified. I’m not saying that would be the correct result, but it would be a closer call than if the gun was in Mr. Scott’s in his hand.

Mr. Branca and I agree that the shooting was legal if Mr. Scott had the gun in his hand, was moving, and refused to obey police orders. I also agree with Mr. Branca that when armed and confronted by police, follow their orders and only later, if necessary, challenge the legality of the confrontation in court. Your life may will depend on it.

My concern over the Charlotte shooting has been about why the police initially approached Mr. Scott with guns drawn, not about whether the shooting itself was justified. That is what I focused on in my comments to the ABC News reporter, and I think that is a legitimate question.

Nobody wants police officers to be shot by criminals or the mentally-deranged. But lawfully-armed individuals should not be forcibly disarmed when there’s nothing to suggest they’re doing anything criminal. Allowing the police to detain someone openly carrying a firearm simply because he might do something illegal would eliminate constitutional protections for the lawfully armed. When a state decides that its citizens can be entrusted to carry firearms in public, the police have no authority to disregard that trust by detaining and disarming law-abiding persons without some evidence of criminality or dangerousness.

I’m no great fan of open carry, but it’s important for both the police and the public to be reminded that the mere display of a gun in a state where open carry is legal does not give the police legal cause to forcibly stop and disarm the carrier. Those of us who are pro-gun rights cannot be so invested in the pro-law- enforcement or anti-BLM narratives to see why the initial police approach to Mr. Scott might be troubling to gun owners.

Thanks again to Bob for allowing me to respond.