POLICING IN THE AGE OF THE GUN

Abstract

This Article examines how the rapid deregulation and rampant possession of firearms is likely going to impact policing, and the constitutional law that governs it. For the longest time, lawful gun carry, concealed or open, was exceedingly rare. For a police officer to see a gun was both to see danger, and a crime in progress. This link among guns, danger, and unlawful possession has shaped much of the law of policing. But now, this understanding of the world is in its last stages of unraveling.

In nearly all states, guns are no longer unlawful to own and carry by default. In many, they are barely regulated. Recent Supreme Court Second Amendment decisions like New York State Rifle & Pistol Association v. Bruen serve only to hasten where state laws already were headed. For police, however, the harm guns can do exists irrespective of what the law has to say about the legality of carrying them. As a result, the nation’s gun laws are on a collision course with the practice and law of policing. This Article explores how the constitutional law governing policing is changing and will change in the face of gun legalization.

Part I of this Article explains the ubiquitous role guns play in the life of a police officer, and what actions guns lead police to take. Part II is about the legal doctrine of policing, both before and after firearm legalization. It details how the law shaped what police could do in order to protect themselves and others, and how that law is changing to accommodate legalization. Police now must operate in a terrain that increasingly is uncertain as to their lawful authority, and that in many instances may put them or others in jeopardy. Part III examines how the shifting laws of guns and policing might impact police behavior, likely resulting in ad hoc carve-outs for police authority that—if history is any guide—overwhelmingly will be imposed on Black and Brown communities.

Introduction

In the old Frank Sinatra tune, love and marriage go together like a horse and carriage. “This I’ll tell ya, brother, you can’t have one without the other.”¹ Here in America, the same seems to be true of police and their guns. American police are exceptional in many ways, but one is that all of ours carry guns, are taught to resort to them quickly as both a coercive and persuasive tool, and as such their work leads to an extraordinary number of mortal encounters.² It is a commonly recited fact that police kill roughly one thousand people each year, wound countless more, and most of those deaths and injuries occur when police shoot people.³

But there is another, deeper connection between guns and the police, one that drives that data point about deadly force and much else around policing. Guns are ubiquitous in American culture, and with that ubiquity comes danger. For the police officer, the threat from guns is around every corner. For a long time, there was yet one more absolutely crucial datapoint that tied this story together: The public possession of guns by people other than the police was almost always unlawful.⁴ Lawful carry, concealed or open, was exceedingly rare.⁵ To see a gun was to see danger. But it was also to see a crime in progress.

The link between guns, danger, and unlawful possession construct much of the law of policing as it exists today. At least until recently, police could conduct a forcible stop of people at the sight of a gun, or even based on a tip that a gun was present somewhere.⁶ Police can frisk people on reasonable suspicion that they are armed and dangerous.⁷ Police can search people they arrest—and the grab area around them— without a warrant because a lurking firearm could pose a threat.⁸ In New York v. Quarles, the Supreme Court held that police could dispense with reading Miranda rights to a suspect if that suspect was believed to have hidden a gun somewhere in a supermarket, because with a gun on the loose, there was an imminent threat to public safety.⁹ Guns in plain view (certainly in public, and sometimes not) could be seized as contraband because possession was almost certainly unlawful.¹⁰ And so on.

In other words, guns—in the doctrine of policing—have served as permission slips. The presence of a gun, the possibility of the presence of a gun, the threat of a gun—all these, in the case law, allow police to do a variety of things we otherwise would prohibit: for example, to invade people’s privacy,¹¹ put the public at risk,¹² and act in ways that have deeply racialized effects.¹³

This law developed, notably, in a world in which the courts overwhelmingly loved cops and consistently disliked guns.¹⁴ Which, again, was easy to do. Because guns were unlawful, guns were dangerous, and police were the heroic figures that dispossessed criminals of their guns at great personal risk.

The problem is that this state of the world, one that constructed policing, is in its last stages of unraveling. In nearly all states, guns are no longer unlawful to own and carry by default.¹⁵ In many, they are barely regulated.¹⁶ Much-controverted Supreme Court Second Amendment decisions like District of Columbia v. Heller and New York State Rifle & Pistol Association v. Bruen served only to affirm and hasten where state laws were already headed.¹⁷ At the time Bruen was decided, the vast majority of states in the country either allowed people to carry guns at will, or mandated that authorities “shall issue” permits to carry them.¹⁸

Today, the United States is awash in guns, with a national supply of firearms unrivaled anywhere else in the world. There are an estimated 393 million guns in the United States, a nation with a population of 330 million people.¹⁹ Unlike smartphones and computers, they are not built with planned obsolescence in mind, and unlike cars, they are not so complex that at some point they simply will wear out or break. As long as a gun is kept dry and lightly oiled, it almost certainly will work as well decades from now as the day it was made. Lawfully-held guns are every bit as dangerous as when they are contraband. Guns are insentient, and the damage they can do is oblivious to what the law has to say. It may be true that those who possess guns lawfully are less prone to use them criminally.²⁰ But the sheer volume of guns in circulation may lead to more violence. Unlawful gun ownership remains rampant, and lawfully-owned guns are lost or stolen regularly, finding their way into hands of people with criminal intent.²¹ As news stories make clear, even lawful gun owners can use their guns—or have them used—to tragic effect.²²

As a result, the law of guns is on a collision course with the law of policing, the growing ripples of which are being felt all over the country. The question we take up in this Article is how the rapid deregulation and rampant possession of firearms is going to affect policing. What will the legalization of guns do to the law of policing? How will that, in turn, affect what cops can do, or in fact do? And what—because judicial review is in a feedback loop with society, its priorities, and its shifting sentiments—will then happen to the law of policing?

Part I is about guns and policing. It discusses the ubiquity and role of the gun in the life of a police officer: what role guns play in their lives, and what actions guns lead police to take. It illustrates how the gun is one of the central, defining objects and ideas of American policing. The need for police to be both safe from guns and keep them off the street has been at the core of who police are and what they do. These realities have shaped modern police practice, yielding what seem to be inexorably disparate and often tragic results.

Part II is about the legal doctrine of policing, in the before and after times of gun legalization. In the beforetimes, guns were a clearly-written permission slip for officers, facilitating invasive police conduct of many sorts. But the legalization of guns is causing that to change in some ways (though not in others). The law is shifting, and often in ways that would seem to disadvantage police. If nothing else, police now must operate in a terrain that increasingly is uncertain as to their lawful authority. Once, courts seemed to love police and dislike guns; now, they prefer guns, often to the disadvantage of police.

Finally, in Part III, we ask how the shifting law of guns and of policing will impact police behavior and then how that in turn will affect the law as courts evaluate police actions. We predict—with some evidence from case law—that police will continue to do what they have always done to “get guns off the streets” and to protect themselves from physical danger. We also suspect that courts will bless much of it. Even if the law no longer permits police to do things at “wholesale” because a gun may be lurking during an encounter, courts will allow it at “retail” if police merely articulate fear and suspicion. Indeed, pretextual justifications are likely to become the order of the day. We will go one step further and suggest that just as the law and the police came together to visit disproportionate harms on Black and Brown communities in the beforetimes, evolving circumstances will allow these practices to persist if not worsen during Policing in the Age of the Gun.

I. Police and Guns

A. Cops and Guns: A Relationship in Three Parts

Guns are central to the communal culture of the American police officer. Guns figure into their lives in three ways: police carry guns, others’ guns are a danger to police (and third parties), and it is the job of police to keep illegal guns off the street. In this piece, we focus on the latter two, although in Part III we discuss the danger police can pose to others as armed law enforcement, and how the law is likely to respond to that danger in an era of widely-legalized gun possession.

Carrying the gun is the most concrete and practical manifestation of the police officer’s lawful powers; it is the final backstop to every lesser means of persuasion and coercion available to police.²³ Police officers’ service firearms are central to their professional identities, which in police culture invariably comes to form the basis for their personal ones as well.²⁴ “Every run you go on is a ‘gun run,’” NYPD recruits are told, “because you are bringing a gun.”²⁵

But it is the danger of other people’s guns that truly makes American policing distinct. Guns allow any person who can exert a few pounds of pressure with their index finger to match the proximate, situational power of a police officer. If an armed person gets “the drop” on an officer, it is not merely a match, but an ambush in which the officer-victim is all but helpless. To the extent someone views U.S. police work as dangerous, heroic, and requiring courage—conceptions that police internalize and highly value—it is because of the objective danger that guns create. Guns could be anywhere and can appear without warning.

Finally, there is the belief that it is the mission of the police to achieve public safety by eradicating the presence of dangerous guns in public.²⁶ The danger of the gun is present in any encounter between armed people. But it is the police who shoulder the affirmative responsibility of dealing with the threat of others’ guns.²⁷ On the eve of the 2022 West Indian American Day Parade, Brooklyn’s Labor Day celebration, which has been marred by violence in the past, New York City Police Commissioner Keechant Sewell tweeted out that “[o]n #LaborDayWeekend and every day in between, NY’s Finest are dedicated to taking illegal guns and those willing to pull the trigger off the streets of NYC.”²⁸

B. What Cops Did About Guns

For the longest time, all three of these factors came together to form the everyday fabric of policing. It generally was a safe assumption for police in most states and certainly in nearly all large cities that a person carrying a firearm in public—concealed or openly—was a criminal by virtue of doing so.²⁹ As of 1980, twenty-one states had laws that almost completely banned the public concealed carry of firearms.³⁰ Of the remainder, twenty-four states had laws giving the government the discretion to issue permits to people it felt needed them, while denying applicants who couldn’t demonstrate such a necessity.³¹ Only four states had “shall issue” laws, which limited the discretion of those charged to issue permits.³² Vermont was the only state in the nation that allowed people to carry a concealed handgun without a permit.³³ The idea that a gun seen in public was criminally carried was a reasonable assumption in nearly every state.

In America’s metropolitan areas, especially the ones with the strongest gun control laws, three beliefs—beyond the fact that guns are an omnipresent danger—came to define police conduct: (1) Guns lawfully carried by responsible citizens are the exception, and illegal guns carried by criminals are the rule; (2) The fewer guns there are on the street, the safer a city is; and (3) It is the job of police officers to find these illegal guns and the people carrying them and to remove both from circulation.³⁴ This task, in and of itself, puts police in peril.

Police tactics and behaviors have been shaped by these realities in powerful ways.

1. Staying Safe

The work life of the officer on patrol centers around the possibility that hostile people with guns can materialize at any time.³⁵ In some cases, the precautions against attack are general ones, and the gun is the worst case scenario. In others, police take actions specifically to protect against firearms.

This isn’t simply paranoia; police officers are in the business of dealing with the nation’s armed criminals, and they are not invulnerable. Sometimes, police are targeted by virtue of their professional identity. Two Las Vegas officers were shot and killed in 2014 by right-wing radicals as they ate lunch in a pizzeria in Las Vegas.³⁶ The same year, two New York City police officers were murdered by a gunman without warning as they sat in their patrol car.³⁷ In response, the City retrofitted its fleet of thousands of police cars with bullet resistant doors and unmistakable side windows as thick as a bank teller’s.³⁸ Of course, the actuarial probability of a police officer being shot and killed is comparatively small, but it is fair to wonder if it is low in part because police take constant tactical precautions.³⁹

The threat of guns influences how police dress. The typical armored vest—which is required wear in most jurisdictions—will stop all but the most powerful pistol rounds.⁴⁰ They are bulky, don’t breathe, and become a cauldron in hot weather.⁴¹ They are a literally palpable reminder that police officers must be prepared to face people who may shoot at them. Some officers will wear a smaller metal plate over the vest on top of their heart to add an extra layer of protection for this vital organ and to stop the energy of a bullet’s impact from disrupting its rhythm.⁴²

Guns also define many police tactics. New York City police officers, like all police, are steeped in this omnipresent danger of the gun from their first days in the police academy.⁴³ The police academy hallways sport signs reminding trainees that “Good Cops Demand to See Hands,” underscoring the logic that empty hands are safe ones and a hidden hand might be holding a gun.⁴⁴

When police officers knock on the door of a private home, many of them then step to the side, in case someone inside opens fire.⁴⁵ When they stop cars, officers approach from behind, and many pause at the “B-pillar,” the one behind the driver’s window.⁴⁶ Many lean forward to talk to the driver—almost as if they intend to whisper in her ear—so that if the driver wants to shoot, she’ll have to pivot around and shoot from an awkward angle.⁴⁷ When police officers respond to calls for armed, violent crimes in progress, they are trained never to stop directly in front of the address in question, so they can have more time and distance if someone from inside suddenly starts shooting at them.⁴⁸

Search warrant execution is perhaps the police practice most built around the danger of guns. Fear of drug dealers with better firepower than the police led to the advent of the no-knock warrant at the dawn of the ill-fated War on Drugs in the 1970s.⁴⁹ It was driven by the principle that police who knock on a door and announce their presence allow time for their opponents to arm themselves and start shooting.⁵⁰ A no-knock execution intends to establish tactical dominance with speed, surprise, and violence. This is accompanied by a protective sweep of a premises for weapons to be sure no threat goes undetected. In embracing this strategy, the search warrant has become the straightest path toward the profession’s militarization, in which everything meant to protect the police from the risk of a gun on the other side of the door was brought to bear. Officers wearing helmets, heavy vests, and ballistic shields, and armed with long rifles, deploy flash-bang grenades and send in the dogs.⁵¹ These teams often arrive in armored cars.⁵² Even warrants where officers knock and announce their presence are likely to be executed by teams with this tactical disposition, to be prepared for assailants with guns.

2. Getting Guns off the Street

The quest to recover illegal firearms is considered the paradigmatic urban police activity.⁵³ One of the principal violent crime control strategies remains arresting people for criminal possession of a weapon, often enhanced by the federal charges that apply to a person in possession of a weapon who has been convicted of a prior felony.⁵⁴ To achieve this goal, many departments resort to small teams of officers “jumping out” on groups of men (most often young, Black men) on street corners, spreading their hands on the hoods of cars or against walls so they can be frisked for weapons. This tactic can be seen on street corners from Baltimore to Philadelphia to Chicago.⁵⁵

Again, the NYPD is instructive on the central mission of police in getting guns off the street. Making an arrest for the criminal possession of a concealed firearm almost always guarantees that an officer will receive the Meritorious Police Duty medal.⁵⁶ The NYPD’s stop, question, and frisk regime—peaking at 685,724 pedestrian encounters in 2011—was the most intensive and relentless hunt for illegal firearms in the history of municipal policing.⁵⁷ Its critics noted that less than two percent of the stops for suspicion of a weapon actually yielded one.⁵⁸ But this critique disguised what others believed was the underlying logic of the frisks: their sheer volume was meant to deter people from carrying guns in the first place, and the fact that so few were found to do so was, to them, evidence that the strategy was working.⁵⁹ This logic was suppressed in the public discussions because it was facially unconstitutional; each stop had to be based on its own elements of reasonable suspicion, and the idea that the police were noticing more and more genuinely suspicious activity as reports of violent crime went down year after year did not seem plausible.⁶⁰ (In 2013, Judge Shira Scheindlin ruled that the NYPD’s practices were indeed unconstitutional on Fourth Amendment and Equal Protection grounds, and the department was placed under a federal monitorship.⁶¹ By 2015, stops had declined by ninety-seven percent, while the violent crime rate remained steady and in some categories continued to decrease.⁶²)

C. The Legalization of Guns

What we have seen since the turn of the century, however, is a subversion of the fundamental assumptions about the legality of guns on which policing is based. The 2022 Bruen decision, which allows nearly anyone to carry a gun concealed in public, is only the latest event in a decades-long national trend that steadily is turning the police profession’s relationship to guns on its head. So-called “Constitutional Carry” regimes now prevail not only in Vermont, but in twenty-five additional states, providing citizens with the right to carry a handgun (concealed or openly) without a registration or permit.⁶³ An additional eighteen states utilize a “shall issue” system, in which the permit-issuing agency—most typically the police—has no discretion to set standards beyond whether or not the person meets the basic requirements of the law.⁶⁴ The remaining six states, among them California and New Jersey, retain the right to withhold concealed carry permits for a wide range of reasons broadly related to a lack of necessity.⁶⁵ It is the subjective nature of their standards that Bruen attacked in an attempt to push these remaining states into the “shall issue” category.⁶⁶

This shift toward a nation of citizens who could freely arm themselves with guns in public suggests Bruen—however much alarm it caused in gun-control quarters—was actually a decision of limited practical impact: It only affected the laws in the (then) eight remaining states that had retained the means to make subjective value judgments when deciding to issue concealed carry permits.⁶⁷ In that sense, Bruen was a mopping-up operation of what can be considered a long and steady victory march for the gun industry and proponents of an unregulated right to bear arms. State by state, legislative efforts and targeted lobbying yielded a string of successes that gradually transformed the nation with an effectiveness that should be the envy of special interest groups everywhere.⁶⁸

In other words, the taxonomy that police used to organize their relationship with guns and the citizens who carry them—and that influenced their overall sense of policing in critical ways—has been up-ended. The idea that carrying a concealed weapon is the prerogative of nearly all the residents of forty-two states assails the idea that keeping guns off the street is one of the keys to public safety. The nation’s legislators have voiced consistent disagreement and written their laws accordingly, despite emerging evidence that shows the opposite—that deregulating firearm carrying increases violence and homicide rates.⁶⁹ A police culture that is still shaped by the gun laws of the 1980s has failed to keep up with the normalization of a heavily-armed populace, and it has left police in the lurch. The instinct to get guns off the street persists, and the idea that guns can be anywhere and are a grave threat to officer safety still dominates police work. But the people of nearly every state now can carry concealed handguns lawfully. As the fallout from Bruen runs its course, this right will continue to expand. We now must understand the terms of Policing in the Age of the (Legal) Gun.

II. Guns, Police, and the Law

For a long while, when it came to guns, the courts were aligned with the police. Supreme Court decisions generally approved at wholesale the sorts of actions police could take, both to protect themselves and to get guns off the streets.⁷⁰ Those decisions effectively provided “scripts” to officers, so they could articulate the right things to get courts to sign off on their actions in individual cases.⁷¹

As state legislatures have moved in the direction of legalizing guns in public, courts are being forced to confront the changing landscape.⁷² The permission slips that guns once provided to policing are being rescinded, or altered in significant ways.⁷³ In some areas, the new judicial doctrine is relatively clear; in others it is shifting and deeply uncertain. What those decisions manifest—as this Part and the following one make clear—is a growing tension between the Supreme Court’s love of police and their former (but now shifting) dislike of guns.

When the movement to legalize guns began to bear fruit, it is not clear that anyone—including legislators or judges—was thinking through how it would affect policing. As the developing body of doctrine makes clear, though, it plainly is making its mark.

One of the most stunning developments in the doctrine has been to pry apart the dual nature of guns, separating unlawfulness from danger.⁷⁴ Guns could be either, or both. But the two do not necessarily travel together anymore. Nowhere is the impact of that simple but significant fact more evident than in the emerging doctrine of Terry v. Ohio, or stop and frisk, often seen as one of the principal tools in the police arsenal.⁷⁵ We focus there, then summarize other doctrines that have involved the gun’s role as a permission slip.

A. Beforetimes: Stop and Frisk

Just as guns and police go together like a horse and carriage, in the beforetimes so too did the danger and unlawfulness of guns themselves. To see a gun was to have a reasonable fear for one’s safety and that of others.⁷⁶ Given state laws at the time, to see a gun was also to almost certainly see a crime in progress.

Nowhere was the dual nature of guns more evident than in the Supreme Court’s early cases on stop and frisk. In Terry v. Ohio, the Court famously held that police could detain an individual, using force if necessary, on reasonable suspicion of criminality—the “stop”—in order to investigate further.⁷⁷ And it also held that—on reasonable suspicion that the suspect was “armed and dangerous” and thus posed a threat to an officer—a “frisk” of the person’s outer garments was permissible to look for weapons.⁷⁸

Although in Terry itself, the basis for the stop was not the gun, but a separate crime, in many cases both the criminality and the threat of danger were embodied in the gun. In Terry, the suspected crime was casing a business for a stick up, and the frisk for the weapon was incidental to that.⁷⁹ But in countless subsequent cases, the only crime of which the target was suspected was carrying a gun.⁸⁰ The gun, then, justified both the stop and the frisk. Adams v. Williams, the Supreme Court’s first post-Terry case, was indicative.⁸¹ A police officer got a tip that Williams had a gun at his waist and heroin in the car. The cop went up to the car, and when the driver rolled the window down, the officer simply reached in and pulled out the gun.⁸² Having found the gun, the driver was arrested; the car search incident to the arrest yielded heroin.⁸³ All this was fine, the Supreme Court majority held.⁸⁴

Over time, a rubric developed in which it wasn’t necessary to actually glimpse a gun. Seeing a gun-like bulge, or getting a tip about a gun, was enough to justify both the stop and the frisk as well.⁸⁵ The only question in these early cases was whether the facts the officer had articulated added up to actionable reasonable suspicion that there was a gun, such that a stop was permissible. Florida v. J.L. was the rare case in which the Supreme Court held that it wasn’t.⁸⁶ The Justices disapproved of a stop based on an anonymous tip that a Black boy in a plaid shirt at a bus stop had a gun, even though a gun indeed turned up when the boy was frisked.⁸⁷ It was clear in J.L. that the majority was skeptical that there even had been a tip.⁸⁸ That skepticism was revealing, though, of how relentless the mission to hunt for guns had become, and how the Justices struggled even to find a toehold in addressing wayward police conduct. In many other cases, mostly in the lower courts, but also from the Supreme Court, tips, bulges, and glimpses were enough to allow all manner of police intrusions.⁸⁹

B. Now Times: Stop and Frisk

1. The Stop

In retrospect, the stunning fact that stands out about the 1972 decision in Adams v. Williams is that carrying a gun was legal in Connecticut, so long as the person with the gun had a permit to carry it.⁹⁰ Although the lower court had admitted the gun and drugs, Chief Judge Henry Friendly—a legend in the law—dissented, pointing out that “Connecticut allows its citizens to carry weapons, concealed or otherwise, at will, provided only they have a permit … and gives its police officers no special authority to stop for the purpose of determining whether the citizen has one.”⁹¹ When the Supreme Court majority in Williams also upheld the search and seizure, it rankled three of the liberal Justices, who dissented.⁹² Justice Douglas grumbled: “Can it be said that a man in possession of narcotics will not have a permit for his gun? Is that why the arrest for possession of a gun in the free-and-easy State of Connecticut becomes constitutional?” (Presciently, he also took a swipe at “[a] powerful lobby” that “dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment ….”)⁹³

Undoubtedly, part of what could justify the Williams Court’s decision in 1972 was the rarity of lawful gun possession itself.⁹⁴ As late as 2018, the Ninth Circuit upheld a stop based on a gun tip, on the ground that “California law ‘generally prohibits carrying concealed firearms in public, whether loaded or unloaded.’”⁹⁵ At that time, California “[s]trictly limit[ed] the issuance of concealed carry permits” such that only .2% of its adult population had one.⁹⁶ “Given the insignificant number of concealed carry permits issued in California, a reasonable officer could conclude that there is a high probability that a person identified in a 911 call as carrying a concealed handgun is violating California’s gun laws.”⁹⁷

But as Bruen stressed, California was an outlier in the regulation of guns, and state legalization of gun possession would bring with it a dramatic shift in how courts would look at police stops.⁹⁸ This was evident in another Ninth Circuit case, United States v. Brown.⁹⁹ It involved another tip that a person “had a gun.”¹⁰⁰ This time, though, the tip was in Washington State, where—as the Ninth Circuit explained—carrying a firearm is “presumptively lawful,” and failure to have a license for it was only a civil infraction.¹⁰¹ For that reason, “[t]he anonymous tip that Brown had a gun thus created at most a very weak inference that he was unlawfully carrying the gun without a license, and certainly not enough to alone support a Terry stop.”¹⁰²

In quite a turn of events, it has become fashionable for some judges to be indignant about police stopping people and interfering with their liberty simply because they were armed with a firearm. This shift in sentiment—and law—was on display in United States v. Ubiles.¹⁰³ In that case, an anonymous individual told an off-duty officer at Carnival in St. Thomas that a man, Kahli Ubiles, had a gun. Officers approached Ubiles, patted him down, and recovered a machete and firearm. The firearm turned out to be unregistered and the serial number defaced.¹⁰⁴ The District Court refused to suppress the firearm as unlawfully-seized, but the Third Circuit reversed, explaining that “[i]t is not necessarily a crime to possess a firearm in the Virgin Islands.”¹⁰⁵ For that reason, “[f]or all the officers knew … Ubiles was another celebrant lawfully exercising his right under Virgin Islands law to possess a gun in public.”¹⁰⁶ Criticizing the trial court for suppressing evidence based on after-discovered facts, the Third Circuit explained:

The situation is no different than if [the tipster] had told the officers that Ubiles possessed a wallet, a perfectly legal act in the Virgin Islands, and the authorities had stopped him for this reason. Though a search of that wallet may have revealed counterfeit bills—the possession of which is a crime under United States law … the officers would have had no justification to stop Ubiles based merely on the information that he possessed a wallet, and the seized bills would have to be suppressed.¹⁰⁷

In short: If possession of guns is lawful in a state, then stops are not. A growing body of cases recognizes this new reality. This alone will necessitate a sea change in policing.

2. The Licensure Conundrum

Things are not quite that simple, though, even with regard to stops. Differences in state laws raise the question of whether officers can conduct a stop in order to ask whether the person with the gun is licensed to own and carry it. In “constitutional carry” states, no permit is required at all to carry a gun, concealed or otherwise. Things are more complicated elsewhere, however, and courts are struggling to figure out what to do.¹⁰⁸

The rules are fairly straightforward in states where the legislature has flat out barred police from stopping people to ask for permits. “A person carrying a weapon shall not be subject to detention for the sole purpose of investigating whether such person has a weapons carry license,” says § 16-11-137 of the Georgia Code.¹⁰⁹ And so, presumably, they will not be. (Though note the phrase “sole purpose,” which might give the sort of fact-based permission slip to which we will return in Part III.)¹¹⁰

But other states, like New Jersey, see it differently, apparently enabling officers to ask to see the permit. New Jersey law provides that “[w]hen the legality of a person’s conduct … depends on his possession of a license or permit … it shall be presumed that he does not possess such a license or permit … until he establishes to the contrary.”¹¹¹ In other words, gun possession is presumptively unlawful until proven otherwise, which can give rise to a stop, enabling the officer to inquire as to whether there is indeed a permit or license.¹¹²

As is evident in the competing opinions in the Pennsylvania Supreme Court’s decision in Commonwealth v. Hicks, however, courts are sundered on what to do when state legislation is less clear.¹¹³ In Pennsylvania—outside of Philadelphia—one can carry a gun openly without a license, but a license is required to carry a concealed weapon.¹¹⁴ In 1991, Pennsylvania courts had interpreted state law to mean officers could stop an individual to ensure a person concealing a weapon was licensed to do so.¹¹⁵ But in 2010, in Commonwealth v. Hicks, the Pennsylvania Supreme Court reversed the rule, over a stricken concurrence, concluding that such stops were inconsistent with the spirit of Terry and Fourth Amendment rights more generally.¹¹⁶

Hicks elaborated upon the interpretive move—resting in the structure of state law—that many courts are making to determine whether police may (or may not) conduct licensure stops. Courts draw a distinction between statutes in which “nonlicensure is an element of the crime of carrying a firearm without a license” and statutes in which “licensure serves as an affirmative defense to the criminal charge ….”¹¹⁷ Apparently, the theory is that when licensure is an element of the offense, the officer cannot know ex ante if someone with a gun has violated the law, so there is no reasonable suspicion for the stop. On the other hand, if possession is presumptively unlawful, and “the permit holder has the obligation to provide evidence of his permit as a way to avoid criminal responsibility[,]” then a Terry stop to verify licensure is permitted.¹¹⁸ The Hicks majority dismissed this distinction, concluding that focusing only on possession as justification for the stop leads to “categorical treatment of a rather large class—all persons carrying concealed firearms, whether they are licensed to do so or not.”¹¹⁹ But the concurrence would have relied upon the distinction, fretting that the majority’s ruling limited the ability of police to investigate what was unlawful only in Philadelphia: the open carry of firearms in a city—according to the concurrence—beset by gun violence.¹²⁰

At the least then, police face uncertainty until the courts in their jurisdiction resolve what the structure of any particular state’s law means for Terry stops. Uncertainty is part of life, but in this case, it is particularly problematic. Not only are state laws themselves in flux, but convictions obtained based on searches that later are proven to have been unlawful will be in jeopardy.

Then there’s the problem that all this is up for grabs after Bruen, with nary a clue, frankly, about how it will play out. In terms of predicting how the Bruen Court will rule in future Second Amendment cases, one actually can put to one side the extraordinarily long and historically very odd “majority” opinion in Bruen.¹²¹ All the important action is in Justice Kavanaugh’s concurrence, for himself and Chief Justice Roberts.¹²² The vote in Bruen was 6–3, meaning the Kavanaugh concurrence was pivotal to the outcome—the majority needed those two votes.¹²³ Justice Kavanaugh’s opinion joined the majority and nodded to its historical approach, but he wrote “separately to underscore two important points about the limits of the Court’s decision.”¹²⁴ The first was that states still are entitled to impose “licensing regimes” for “carrying a handgun for self-defense.”¹²⁵ The second was to stress the “‘variety’ of gun regulations” that remain permissible, including on who may carry a gun—such as limits on “felons and the mentally ill.”¹²⁶ Justice Kavanaugh’s Bruen concurrence certainly points to a degree of regulatory permissiveness beyond the majority¹²⁷ and even gestures toward the lawfulness of “stop and inquire” regimes.¹²⁸ After all, how is the state to enforce its licensure regime absent the ability of police to check? On the other hand, as the Hicks court said, that sort of regime opens up a lot of people to police stops, and it is not certain a Supreme Court majority—when forced to confront the issue as it almost certainly will—will tolerate it.

There’s yet one more Fourth Amendment wrinkle here, which courts have struggled with by analogizing to automobiles. In Delaware v. Prouse, the Supreme Court held that police may not stop an automobile, absent other suspect facts, simply to check license and registration.¹²⁹ Roadblocks to check the documents of all motorists were fine; discretionary, individualized stops were out.¹³⁰ Some courts—including Pennsylvania Supreme Court’s decision in Hicks—have relied on that logic to argue that license checks of individual gun owners are impermissible, absent other individualized suspicion that possession is unlawful.¹³¹ One would think guns would be treated like automobiles, although one cannot be certain.

In short, in some places, the law of policing is clear around gun stops, but in many, it is not. In constitutional carry states, it stands to reason that no stops for guns will be allowed. In states in which the legislature has barred stops, no stops also will be allowed—though in Virginia v. Moore the Supreme Court held that courts still may admit evidence discovered in the course of stops that violate state law.¹³² In states in which courts have held that failing to have a license is an element of the offense, stops probably are not allowed. In states in which courts conclude licensure is an affirmative defense, or where the legislature has required production of a license, it’s entirely up for grabs. Clarity may not shake out for some time. Police do their work in specific jurisdictions, and clarity also may be a function of geography.

3. The Frisk

If the state of the law about what is permissible policing in the Age of the Gun is muddy with regard to stops, it’s downright opaque on the question of the frisk. The root of the problem is Terry’s “armed and dangerous” formulation.¹³³ Police can stop a person to investigate only with reasonable suspicion of criminality.¹³⁴ But once the stop occurs, a police officer can frisk immediately if there is “reason to believe” that the target of the stop is “armed and dangerous.”¹³⁵

The question courts have debated is whether being “armed” with a firearm is inherently dangerous, or if police must in each instance identify specific facts of dangerousness. The courts are split on this issue.

Courts that permit the very fact of a firearm to justify a frisk rely heavily on the inherently dangerous nature of firearms, as well as what seems to be pretty clear support from the Supreme Court itself. In Pennsylvania v. Mimms, for example, the Supreme Court held that as a safety precaution officers can demand occupants of a vehicle get out during a traffic stop.¹³⁶ But it went further on the facts and approved the frisk of Mimms, in telling language: “The bulge in the jacket permitted the officer to conclude that Mimms was armed and thus posed a serious and present danger to the safety of the officer.”¹³⁷ (We’ve added italics to make the point that danger flowed simply from the presence of the gun.) In McLaughlin v. United States, the Court devoted only a few paragraphs to holding that an unloaded handgun was a “dangerous weapon” within the meaning of the federal bankruptcy statute.¹³⁸ In that short space the Court rattled off reasons that support the “armed equals dangerous” approach. Guns are “typically and characteristically dangerous.”¹³⁹ Indeed, “the use for which [the gun] is manufactured and sold is a dangerous one ….”¹⁴⁰

And guns are inherently dangerous, are they not? Justice Alito’s concurrence in Bruen took pains to tell the tales of gun-wielding individuals frightening off assailants, and the underlying logic of the Court was that armed criminals are a terrifying prospect, requiring more guns in the hands of citizens to stave them off.¹⁴¹ As the McLaughlin Court said, even the “display of a gun instills fear in the average citizen; as a consequence, it creates an immediate danger that a violent response will ensue.”¹⁴²

From the perspective of the police officer, any concealed firearm poses a danger, regardless of its legal status. Although the legal phrase is “armed and dangerous,” the police ethos can more accurately be summed up as “armed is dangerous.” In 2020, Bill Bratton, the former chief of the Los Angeles Police Department and two-time commissioner of the NYPD, was asked why U.S. police officers couldn’t be expected to de-escalate situations as well as their counterparts in places such as England and Scotland.¹⁴³ He was quick to dismiss the notion by arguing that the threat of the gun in the United States put police officers in an acute and incommensurate type of danger. He explained that “the issue is guns, a country that has more guns than people, which increases significantly the apprehension level of an officer in every encounter because he never knows if he’s going to be dealing with somebody with a gun.”¹⁴⁴ Thinking along those same lines, when the Police Executive Research Forum developed its rigorous de-escalation training for U.S. police officers, the nation’s most oft-cited and noteworthy police de-escalation curriculum, it advised that the training is designed specifically for situations involving persons who are “either unarmed or [have] a weapon other than a firearm.”¹⁴⁵ In other words, guns still loom large in the minds of police, and their dangers are beyond the pale of de-escalation tactics.

Yet, despite this on-the-ground reality, some courts have held that guns are not per se dangerous and that police must be able to point to specific facts about the situation that justify their perception of danger.¹⁴⁶ The New Mexico Supreme Court typifies this view, holding in State v. Vandenberg that “[t]o justify a frisk for weapons, an officer must have a sufficient degree of articulable suspicion that the person being frisked is both armed and presently dangerous. Any indication in previous cases that an officer need only suspect that a party is either armed or dangerous is expressly disavowed.”¹⁴⁷

Most peculiar in all this is the role the legality of gun possession under state law plays as a special fact in determining whether a person who is armed is also dangerous.¹⁴⁸ As a matter of logic, the idea that guns are inherently dangerous remains objectively true no matter the status of state law, given that their purpose and capabilities as machines haven’t changed. The majority in Adams v. Williams didn’t even feel the need to acknowledge what the dissent emphasized: that Connecticut made gun possession lawful.¹⁴⁹ But many judges do not see it that way. This dispute over the role of state law in defining dangerousness played out in a hotly-debated en banc decision of the Fourth Circuit in United States v. Robinson.¹⁵⁰ Based on a tip about a gun, police conducted a traffic stop (using the pretext of a seatbelt violation), frisked Robinson, and indeed found a gun.¹⁵¹ He was convicted (as so many of the defendants in these cases are) of being a felon in possession of a firearm.¹⁵² Robinson challenged the conviction by arguing that if the police action was valid, “in any state where carrying a firearm is a perfectly legal activity, every citizen could be [considered] dangerous, and subject to a Terry frisk and pat down.”¹⁵³

The Fourth Circuit majority basically said that Robinson was right: “[A]n officer who makes a lawful traffic stop and who has a reasonable suspicion that one of the automobile’s occupants is armed may frisk that individual for the officer’s protection and the safety of everyone on the scene.”¹⁵⁴ Be clear about what you just read. The only basis for criminality in the Robinson case was a seatbelt violation. In the view of the Fourth Circuit, any similar basis for a stop will do to permit a frisk. In reaching its conclusion the Fourth Circuit leaned heavily on the danger police face in making traffic stops.¹⁵⁵ “The concern—i.e., the danger—[is] found in the presence of a weapon during a forced police encounter.”¹⁵⁶

Writing in dissent for herself and three others, Judge Pamela Harris presciently confronted the “collision course” between the law of policing and the law of guns.¹⁵⁷ Quoting her colleague Daniel Hamilton on the Seventh Circuit, she said, “as public possession and display of firearms become lawful under more circumstances, Fourth Amendment jurisprudence and police practices must adapt.”¹⁵⁸ As Judge Harris saw it, the fact that “states have elected to trust their citizens to carry guns safely” changes the “facts on the ground to which Fourth Amendment standards apply.”¹⁵⁹ That already was the case with the stop, and “the same reasoning compels the conclusion” that in a state that allows possession of firearms, “reasonable suspicion that a person is armed does not by itself give rise to reasonable suspicion that the person also is dangerous, so as to justify a Terry frisk.”¹⁶⁰ In short, there is no longer a reason to believe that a person carrying a gun during a traffic stop is anything but a law-abiding citizen.

Given the dangerousness that some see in the gun, courts have been remarkably blasé about where this leaves police, when they have addressed it at all. Judge Sutton exemplifies this view in Northrup v. City of Toledo.¹⁶¹ Northrup was on a walk one “midsummer evening” with his wife, daughter, grandson, and dog, wearing a “This Is The Shirt I Wear When I Don’t Care” T-shirt and carrying “a cell phone, which he holstered on his hip—next to a black semiautomatic handgun.”¹⁶² (Welcome to America, circa early 21st century.) Acting on a 911 call from someone alarmed about the gun, Officer Bright stopped Northrup, and when Northrup protested (precisely what happened is in dispute), Bright grabbed Northrup’s gun. Northrup sued, and the Sixth Circuit denied Bright qualified immunity.¹⁶³

What is an officer like Bright supposed to do when called upon to confront someone with a gun? Absent reasonable suspicion of danger, Judge Sutton wrote, just try to talk to the guy. “While open-carry laws may place police officers … in awkward situations from time to time, the Ohio legislature has decided its citizens may be entrusted with firearms on public streets.”¹⁶⁴ “Awkward” may not quite capture how many cops view their obligation to address these situations. Put sharply, it is now impossible to love guns and cops equally, and so courts are choosing.

C. Now Times: Other Doctrines

In the Robinson decision, the concurrence and dissent pointed to other doctrines that might have to give way if armed automatically means dangerous.¹⁶⁵ For example, are no-knock warrants now automatically appropriate if the very existence of a gun poses danger?¹⁶⁶ Can First Amendment rights be restricted now to those without firearms, given the inherent danger of carrying a gun?¹⁶⁷ Judge Harris went so far as to question whether the very presence of a gun would then justify the use of deadly force.¹⁶⁸ In truth, as this very brief canvas of some relevant doctrine suggests, there’s great uncertainty in the law, and precious little guidance for the police. Judge Harris was right about the collision course between the law of policing and the law of guns, but how that collision will play out with many doctrines is still anyone’s guess.

Take no-knock warrants. Police began to rely on these heavily during the War on Drugs. They were concerned about approaching homes with less firepower than those inside might have, and they feared that suspects might flush critical drug evidence down the toilet before they could seize it.¹⁶⁹ Yet, the no-knock warrant has—rightfully—become a symbol of all that is wrong with both policing and its judicial governance. Today, judges hand out no-knocks like candy on Halloween.¹⁷⁰ The carnage from such warrants, and indeed, the entire militarized “dynamic” entry of police into homes, has been documented by many.¹⁷¹ A no-knock was in part responsible for the tragic death of Breonna Taylor, who was fatally shot by police officers who forced entry into her apartment.¹⁷²

So what does gun legalization spell for no-knock warrants? Despite the fact that many courts say armed equals dangerous when it comes to Terry stops and frisks, that is not the case with no-knock warrants.¹⁷³ Police must have some other facts besides the presence of a gun to justify entering without knocking and announcing their presence.¹⁷⁴ This general rule preceded both legalization and Bruen and perhaps represents special solicitude for the home.¹⁷⁵ Still, a gun plus any additional articulation of danger will justify a no-knock warrant, at least in the many places no-knock warrants still are lawful.¹⁷⁶ In some places, evidence of drug dealing plus guns is enough.¹⁷⁷ In others, prior conduct of the target—such as prior convictions or threats—will do the trick.¹⁷⁸ Or it could be the sort of gun: While ordinary handguns won’t justify dispensing with knocking, less ordinary weapons will.¹⁷⁹

Then there is the Quarles doctrine, discussed in the introduction, which allows officers to eschew giving Miranda warnings if there is a public safety threat and critical questions remain unanswered.¹⁸⁰ In some jurisdictions, the possibility of the presence of a gun is enough.¹⁸¹ But those are the minority. In others, additional factors are required before questioning without reading Miranda warnings is permitted.¹⁸² As the Fourth Circuit has remarked, “[a]bsent other information, a suspicion that weapons are present in a particular setting is not enough, as a general matter, to demonstrate an objectively reasonable concern for immediate danger to police or public.”¹⁸³ Those factors include the presence of other individuals, the nature of the offense or dangerousness of the suspect, and the ubiquitous reliance on “furtive movement.”¹⁸⁴ Interestingly, no federal court, at least, has held that the legality of gun possession affects any of this, a state of affairs that might in the future give way in courts that treat the possibility of a gun as sufficient.

As a final example, it is hard to see how the legalization of firearms will do anything but wreak havoc on the “plain view” doctrine. The doctrine allows police to seize anything in plain view from a place where the police have a legal right to be, without a warrant, so long as there is probable cause to believe the thing they want to take is unlawful to possess.¹⁸⁵ In many cases, the plain view doctrine has followed the path of other doctrines. In some states in which possession of a gun was presumptively unlawful, courts allowed a plain view seizure on the mere sight of a gun.¹⁸⁶ In general, though—and increasingly—courts recognize gun possession might be entirely lawful and bar plain view seizure absent other giveaway indicia of unlawful possession.¹⁸⁷ These indicia include possession of a gun by a convicted felon, at the site of a violent crime, or in proximity to drug dealing.¹⁸⁸ The caution around seizing guns is highlighted by a recent federal case from Kentucky, in which the court (in dicta) perplexingly distinguished a gun from a baggie containing a white substance, concluding: “Clearly, as a general matter, seeing a firearm in plain view is different from seeing, e.g., a baggie of cocaine; the latter is intrinsically incriminating, while the former is not necessarily so, in every circumstance.”¹⁸⁹ But guns, after all, are recognizable as guns—and absent a great deal of other context, cocaine is just a white powder in a plastic bag.

The short of it is, the law of guns is colliding with the law of policing. There is a lot police once could do that they ostensibly can do no longer. And in many instances, they face uncertainty about which tactics—to protect themselves or others, or get guns off the street—are lawful. One might think this uncertainty would limit the capacity of police, and to some degree it might. But, as the next Part indicates, if history is any guide, police will find ways to take the actions they consider appropriate. This will increase their use of discretion, with unfortunately predictable results.

III. Law and Policing in the Age of the Gun

Law and policing are iterative processes, in dialogue with one another. Courts learn what police do, or want to do, from cases that come before them, and respond in written opinions. Police learn of court decisions and alter conduct. They comply.¹⁹⁰ Or they engage in structured defiance, which is to say they find ways to achieve what they wish or feel they must within the bounds of what they are told.¹⁹¹ And then courts decide whether these new approaches are acceptable.

The questions we take up here are how police are likely to respond to the changing law of guns, and how courts will respond to shifting police tactics. It is our instinct, based on mutual learning and experience, that the police are going to do what they need to do to protect themselves from danger, and also to remove unlawful or dangerous guns from the street. In response, courts are going to find a way to sign off on what police do.

And perhaps reflecting some cynicism, for this has been an unending pattern in American policing, we believe that as police adapt their tactics, and courts sign off, it is—as always seems to be the case—Black and Brown men who are going to bear outsized scrutiny and pay a disproportionate price in the new world of gun policing.¹⁹²

A. Cops Are Going to Cop … Often with Tragic Results

It is commonly held that proactive policing—of guns and much else—took a steep decline in the past few years, owing first to COVID-19 and then to the political and social fallout that followed the murder of George Floyd.¹⁹³ Yet, rather than defunding the police, as activists demanded, the opposite has occurred. Historic increases in homicides and shootings in several U.S. cities have put pressure on police to respond to gun violence and pressure on politicians to fund them to do so.¹⁹⁴ A prime example? The President set aside $13 billion in grants to hire 100,000 more officers nationwide.¹⁹⁵

Police departments are entrenched and resilient bureaucracies with immense forward momentum, led by officials who respond to political pressure. The steady deregulation of concealed carry and the coup de grace of Bruen has made policing guns more difficult and uncertain by revoking some of the permission slips of gun enforcement.¹⁹⁶ But there can be little doubt that the police will continue to police. The hunt for illegal guns will continue.¹⁹⁷

As we have seen, some tactics police long have relied upon will have to change—and yet they probably will continue to look oddly familiar. If the “suspicion” of a handgun no longer is available to justify a stop or frisk, police are going to rely more on “consent”—to ask about guns, to search for them, to check permits and run serial numbers.¹⁹⁸ Much of what the police need to do to act can be justified in terms of an officer’s need for personal safety, regardless of whether guns are much more likely to be lawful as time goes on.¹⁹⁹ If existence of the gun alone is insufficient, police are going to imbue a wide range of other acts and circumstances with criminal suspicion. If armed doesn’t automatically equal dangerous, a host of other factors will emerge that made the gun holder seem threatening. “Drug prone” locations, high crime areas, and active violent crime patterns, combined with vague suspect descriptions or “furtive movements” all can provide the ingredients to view a lawfully-carried gun as a possible threat that warrants seizure at the outset of a stop and that provides the cause for further investigation.²⁰⁰

In other words, we will see more officers articulate their fear of the gun in the specific context they encounter to justify stops and seizures they characterize as protective actions. We also are likely to see dusted off and put back to use the same sort of minimally-sufficient, often-flimsy, and sometimes completely inadequate articulations that officers used to justify a multitude of forcible stops at the height of stop, question, and frisk in New York City.²⁰¹ Together, these two approaches can serve as counterbalances to the evolving gun law and the handicaps of Bruen, whatever those prove to be. The question will become to what extent courts accept such articulations, and how disparately they are invoked along the lines of race and class.

We also may see an increase in police shootings. Guns are not just a permission slip to stop a person and investigate; they are also a reason to shoot first. In the mind of the police officer, the lawfully-carried gun can kill just as easily as the illegal one; it is never more than a moment away from doing so. In states where legal concealed carry isn’t a difficult proposition, there is no reason for police to think people with legal guns are less of a threat. The 2016 police killing of Black motorist Philando Castile in Saint Anthony, Minnesota is a painful example of how this thinking can manifest among police.²⁰² Castile was stopped by an officer for a defective brake light, as he had been many times before.²⁰³ He dutifully informed the officer that he had the handgun he was licensed to carry.²⁰⁴ And then a panicked officer—unable to contain his sudden fear of Castile, an armed Black man pleading to be told what to do so he could safely comply with instructions—shot Castile several times.²⁰⁵ A jury acquitted the officer,²⁰⁶ likely on the basis of the defense’s argument that even if he wildly overreacted and the gun itself was lawful and licensed, the officer’s conduct still was not criminal.

All this is going to be exacerbated by the wildly-increasing number of guns in the hands of people in the United States, as well as the likelihood that with more guns out in public—and more people out in public in general as the pandemic lifts—chaos will at times ensue.²⁰⁷ There will be the tactical confusion of incidents in which citizens draw their weapons in self-defense at the sound of gunfire, and nobody has a clear idea of who is an aggressor and who is trying to defend themselves. There also will be more of the confusion and fear that comes to people naturally when they are shopping at the supermarket and a man openly carrying a combat rifle walks in, giving them seconds to decide if they should nervously continue shopping, run for their lives, or prepare to return fire with a gun of their own, further compounding the confusion experienced by responding officers when someone calls the police.²⁰⁸

This is neither a hypothetical nor trivial concern. Police officers have shot and killed their own off-duty or plainclothes colleagues in tragic, confused confrontations of this exact type, and too often those colleagues themselves have been Black and Brown.²⁰⁹ And the same sort of confusion is going to cause the death of other people, often in tragic ways. An exemplar is the 2021 killing in Arvada, Colorado of a man who—carrying a concealed weapon—shot a gunman who had just killed a police officer. The man was then shot and killed by a responding officer.²¹⁰

B. Courts Are Going to Sign Off

The question is, as police keep policing guns and responding to the danger of guns, what courts are going to do with all this.

1. Police Shootings

Our focus here is on the conscious tactics police will adopt in the age of guns, but we pause momentarily to acknowledge one part of that law we have heretofore left untouched—the breadth of immunity given to officers as they fatally wield their guns in precarious situations. All too often, prosecutors don’t charge police at all, as in the case of Tamir Rice.²¹¹ And in the rare instances in which they do, or when civil rights actions are filed against police, immunity from punishment, even for clear misdeeds, is too often the rule.²¹²

The Supreme Court has resisted doing anything about the doctrine of qualified immunity, even in the face of truly outrageous police conduct that did not involve responding to threats of gunfire.²¹³ Public criticism seemingly has had little effect on the Justices. It’s hard to see that law moving in any direction but favorably to cops when, in the face of omnipresent guns, police are a little too quick to respond to perceived threats with force. Uses of force may increase, and immunity travels right along with them.

2. Police Tactics

What about the simply ordinary tactics of stopping, investigating, frisking, seizing, checking papers, and the like? As police ramp up all these tactics, we predict that courts will find ways to sign off on what cops do. To be clear, there are, and will be, hard doctrinal questions, such as with licensure stops. But the emerging doctrine already shows indications that the police will find the permission slips they need, and the courts will approve them.

Police will, with judicial blessing, conduct pretextual traffic stops to seize guns. We saw that in the Robinson case, in which police got a tip about a gun but waited to use a seatbelt violation to make the stop itself.²¹⁴ Police will candidly tell you that with all the traffic offenses that exist, if they follow a vehicle for a short time, they will find reason to pull a car over.²¹⁵ And once they have, existing law lets them order people out of the vehicle, and in the case of reasonable suspicion that someone is armed and dangerous, conduct a frisk.²¹⁶

Traffic stops will become the focus of much more activity courts will deem “consensual.” The Idaho Supreme Court’s decision in State v. Henage displays this sort of doublespeak of consent. In Henage, police stopped a vehicle driven by two brothers they knew.²¹⁷ The ostensible basis for the stop was because a taillight was out, but it quickly emerged that they suspected drug use.²¹⁸ And so once—by both the officers’ and the court’s account—the traffic stop ended, a police sergeant who had shown up started to ask the passenger, Jeremy Henage, some questions, including whether he had a weapon.²¹⁹ He said he had a knife, and during the subsequent frisk, the officers turned up drug paraphernalia.²²⁰ Even though the court ultimately suppressed the evidence, deeming the frisk unwarranted, it noted that the post-stop questioning may have been fine because “a traffic stop may evolve into a consensual encounter to which Fourth Amendment protections do not apply.”²²¹ Just think about that. Cops stop a motorist for some small-potatoes traffic violation. And apparently the motorist then “consensually” wants to hang out with the police some more and talk about possible criminal behavior? So a forcible stop “evolves into” a consensual gabfest. Given additional restrictions on deeming any gun suspicious, police are almost certainly going to rely more on supposedly consensual encounters, and courts will grant them leeway.

As Henage makes clear, the next thing officers are going to do is ask people they have stopped if they have weapons, and often, that will allow a frisk as well. The Henage court thought this practice was fine, too, even if in that particular case it didn’t think Jeremy Henage’s answer justified the frisk.²²² But as we have seen, in many jurisdictions armed automatically means dangerous, and the subsequent search is justified on those grounds.²²³ So when compliant individuals are honest with police about weapons they carry—and hasn’t Bruen said carrying weapons is perfectly understandable?—courts are going to allow the frisk that automatically follows.

Pedestrian stops may prove trickier—beyond jaywalking, police tend not to rely at present on as many pretextual violations to justify them—but here too, things are likely to change. Police are going to make strident claims that stops are consensual, and courts are likely to accept that the consent was freely given. In United States v. Orman, police got a tip that someone was walking into a shopping mall with a gun in his boot.²²⁴ So an off-duty officer—John Ferragamo—in uniform, moonlighting as mall security, located Orman, went up to him, and asked, “[E]xcuse me, may I speak to you?”²²⁵ When Orman consented (because he may not have found it easy to say no to a uniformed officer), the officer “motioned Orman away from the foot traffic and toward a store window.”²²⁶ Ferragamo’s and Orman’s versions of what happened next differ wildly. Orman said he was summarily frisked; Ferragamo said that Orman conceded he had a gun when asked, and indicated where it was.²²⁷ The court believed Ferragamo, which is the pattern in these cases.²²⁸ Orman argued it all was unlawful because he had been seized at the time; he “knew [that he] didn’t have any question of walking away at the time from that point.”²²⁹ The Ninth Circuit agreed with the trial court that the encounter was “consensual, polite, and without coercion.”²³⁰ Officer Ferragamo never drew his gun. Another officer, who stationed himself behind Orman, “was not threatening.”²³¹ The understanding of “consent” by the courts in these cases is not how countless people who have been stopped by police view the word.

Courts likely will be fine with officers next asking people if they ever have been arrested or imprisoned for a felony. Why do they ask this question? Because, as becomes clear from reading all these cases, one of the primary goals is to find a means to probe for “felon-in-possession” cases.²³² For a felon to possess a firearm is a federal offense with the potential for a great deal of jail time.²³³ Felon-in-possession cases are brought by federal prosecutors, rather than beleaguered and overworked municipal prosecutors.²³⁴ Given the jeopardy of answering yes, it seems a violation of Miranda to ask whether someone is a felon without the appropriate warnings.²³⁵ But courts are likely to find that Miranda doesn’t apply either because the suspect is not in “custody” at the time²³⁶ or because the public safety exception applies—perhaps on the pretense that a felon in possession of a firearm is a public safety threat, even if guns generally are not.²³⁷

Officers also are going to run the serial numbers of guns to see if they are stolen, and courts may well uphold this too, though it seems a violation of the Fourth Amendment. In Arizona v. Hicks, the Supreme Court held that police on the premises to investigate a shooting could not turn over a stereo to locate the serial number and call it in to see if it was stolen—this was another “search” for which “probable cause” was required despite falling under the purview of the plain view doctrine.²³⁸ Yet, in United States v. Mazon, the U.S. District Court for the District of New Mexico essentially shrugged off, with little analysis, a Hicks claim, holding that the police had “legal possession” because they had taken the gun during a frisk, so checking the serial number was constitutionally valid.²³⁹

3. Police Narratives

As must be apparent, making these tactics work requires police offering narrative testimony to justify their actions. These will take the form of accounts about how the encounter was “polite,” or “cordial” and “friendly,” and so not a seizure, but consensual. They will involve stories about what factors created suspicion. And here too, courts and police collaborate in an unchoreographed but notable iterative dance to craft what works and what doesn’t.²⁴⁰

To see how the dance is constructed, return to Idaho, in the aftermath of Henage. There, the Idaho Supreme Court found the frisk was unwarranted, because the officer did not genuinely feel threatened. The officer’s concern that his safety was compromised was “not particularized to a particular individual in a specific fact situation.”²⁴¹

Ten years later, in the Idaho Court of Appeals case of State v. May, it was clear all the players had learned their lines. May was a passenger in a car stopped for speeding, and “[t]he officer obtained information” (whatever that means) “regarding the driver and May and learned that May was on probation.”²⁴² A subsequent frisk yielded methamphetamine.²⁴³ May argued there was no basis for believing she was armed and dangerous.²⁴⁴ But now the frisk was permissible. Whereas in Henage, where “the officer did not connect the defendant’s nervousness with anything tending to demonstrate a risk to his safety” and “did not articulate any furtive movements or behavior from which a person in the officer’s position could reasonably conclude the defendant posed a risk,” here, the officer knew better what the testimony should look like: “May [was] acting incredibly nervous and fidgety, which are signs of stimulant use.”²⁴⁵ May was making furtive movements, such as avoiding eye contact, bouncing her feet, and turning her body away from the officer by shifting her weight to her left hip.²⁴⁶ As the officer explained, and the court accepted, “people under the influence of stimulants behave erratically, which causes [the officer] to be concerned for his safety.”²⁴⁷

So, even if armed does not automatically equal dangerous, courts are incredibly forgiving of officer behavior if any explanation, no matter how tenuous, is given to justify their actions. We’ve seen how in State v. Vandenberg, the New Mexico Supreme Court sternly said that the very presence of the gun alone does not justify a frisk.²⁴⁸ But let’s take a closer look at the case and its outcome. Police stopped a vehicle for speeding, although it was clear that this stop was a pretext, and that they were out to get the defendants.²⁴⁹ This was their second stop of the car, because all the first stop yielded was a refusal to permit a canine sniff of the car.²⁵⁰ Officers found this suspicious, as well as the fact that the passengers “looked at each other, refused to make eye contact with” the officer, and “became very nervous when asked about the canine sniff.”²⁵¹ So the officer issued a “be-on-the-lookout” for the car and shortly thereafter another officer—who typically made fifty traffic stops a night—stopped the defendants for going ten miles over the speed limit.²⁵² An articulation of suspicious behavior then opened the door to a frisk. Although the driver was “cooperative,” he was “tapping fingers on the hood of the car, glancing back at [the officer] in both the driver’s side view mirror and the rearview mirror, and glancing over his shoulder.”²⁵³ Oh, and rolling his window up and down several times.²⁵⁴ Officers frisked the driver, who (for what it is worth) insisted they had no authority to do so.²⁵⁵ They found marijuana.²⁵⁶

The Supreme Court of New Mexico upheld the frisk in an opinion that makes clear just how low the threshold for officer “danger” can be. Working overtime to deny that “nervousness alone” can be enough to justify a frisk—this is a court that plainly is of two minds all at once—nervousness plus “articulation by the officer of specific reasons why the nervousness displayed by the defendant caused the officer to reasonably believe that his or her safety would be comprised” was enough.²⁵⁷ What reasons were given here? “Officer Roberts felt Swanson was trying to expel nervous energy through his movement, stretching, drumming his fingers on the roof of the car, and being aware at all times of the location of the officer.”²⁵⁸ The defendants’ “nervousness indicated that they might have been in ‘fight or flight’ mode, a concept he learned at the law enforcement academy.”²⁵⁹ That, plus the “be-on-the-lookout”—itself a product of “nervous” behavior—was enough.²⁶⁰

The same willingness to accept thin justification is true in additional areas in which the simple presence of a gun is not enough. This includes, for example, the Quarles exception and no-knock warrants.²⁶¹ Courts rely on a variety of factors which are subjective or manipulable, ranging from vague suspicion of dangerousness, or furtive movements, to enable the police.²⁶² The more things change, the more they remain familiarly the same.

C. Race Is Likely to Yet Again Rear Its Head

To be sure, these cases are happening out west, where gun laws, after all, have been permissive for much longer than in parts of the east. It’s also impossible to tell the race of the defendants in some of the cases (though Hispanic surnames are common, as are some other indications). But it is the formula itself that unavoidably leads one to conclude that race is going to play a big role in policing in the age of the gun. The task now is to tell good guns from bad guns, which is to say, lawful ones from unlawful. Unfortunately, the police will resort to racial markers to do so.

Start with felon-in-possession cases. As we have said, it is impossible to read these cases and miss that officers are conducting stops to find guns, and especially guns held by felons. That’s the big federal prosecution payoff, one that is much more likely to yield a conviction and substantial prison time.²⁶³ But after years of targeted enforcement in minority communities, it is Black and Brown individuals who have the notably disproportionate number of felony convictions.²⁶⁴ Police will aggressively be looking for those among them who possess guns and are not supposed to have guns.

Of course, getting in place to ask the question requires some cause, but here too, the formula is all too familiar. In State v. Bishop, the Supreme Court of Idaho set out the factors that justify concluding that a person is armed and dangerous:

[W]hether there were any bulges in the suspect’s clothing that resembled a weapon; whether the encounter took place late at night or in a high crime area; and whether the individual made threatening or furtive movements, indicated that he or she possessed a weapon, appeared nervous or agitated, appeared to be under the influence of alcohol or illegal drugs, was unwilling to cooperate, or had a reputation for being dangerous.²⁶⁵

Boil that story down, and what you get is a huge amount of police discretion, particularly in “high crime” areas. And sure enough, we see the cases in which police patrol the block around a “high crime” convenience store, approach or follow people nearby to make pretextual stops, and ask about weapons.²⁶⁶ There also will be cases, as we have seen, in which police officers “know” the people they are dealing with, whose dangerous reputations will precede them.²⁶⁷

That was precisely the story in United States v. Robinson,²⁶⁸ and in it Judge Pamela Harris, dissenting, put her finger on the problem. Reading Robinson, one initially might wonder why some of the Fourth Circuit’s most “liberal” judges were so very willing to bar police from concluding that armed equals dangerous.²⁶⁹ The pro-gun (or at least deferential to pro-gun legislatures) language of that opinion seemed oddly placed. But then Judge Harris said out loud what too often is subtext.

The “biggest concern,” Harris wrote, “is that these ‘special burdens’—most relevantly, the Terry frisks at issue here—will not be distributed evenly across the population.”²⁷⁰ Allowing frisks during traffic stops whenever someone is armed “giv[es] police officers unbridled discretion.”²⁷¹ How that plays out is well-known. Once again quoting Judge Hamilton, Judge Harris said there is “the potential for intentional or unintentional discrimination based on neighborhood, class, race, or ethnicity.”²⁷²

If you are a person committed to the safety of residents beleaguered by crime, as police often are, there’s a perverse irony in all this. As Justice Alito explained in Bruen (and it is worth reading it carefully):

Some of these people [who carry firearms] live in high crime neighborhoods. Some must traverse dark and dangerous streets in order to reach their homes after work or other evening activities. Some are members of groups whose members feel especially vulnerable. And some of these people reasonably believe that unless they can brandish or, if necessary, use a handgun in the case of attack, they may be murdered, raped, or suffer some other serious injury.²⁷³

To be clear, we have our serious hesitations with Justice Alito’s eagerness to privatize what long had been the state’s primary responsibility to use force to secure personal safety.²⁷⁴ But we also read this with some measure of cynicism, well-grounded in experience and history. One of the main factors in the cases justifying frisks based on officer concern for danger is that the stop occurred in a “high crime area.” But people without means are forced to live in those areas. They know full well that the areas are “high crime,” and sometimes unbearably so.²⁷⁵ That’s why, as Justice Alito seemingly understands, some choose to carry weapons of their own. Yet many also cannot obtain licenses because they have prior felony convictions or face other hurdles or disqualifications. So we may be forgiven in thinking that what Judges Harris and Hamilton predict will become all too true. People in high crime areas will want to carry guns, and Black and Brown people will pay a disproportionate price for this.

Conclusion

Policing in the Age of the Gun will be different, and yet it will be more of the same. Because legislators have determined that nothing apparently was quite as good as the Wild West, we will be—we already are—awash in guns, legal and otherwise.²⁷⁶ Courts have taken the signal and are limiting what police can do with those guns. But guns, lawful or otherwise, pose a threat. To officers, for sure, but equally to others in areas riven by gun violence. Cops will cop, as they have. And though the ritual incantations will become more complex and more likely to strain credulity, courts will instinctively uphold their actions. The price will be borne by all of us, but will especially continue to be borne by Black and Brown communities.

Biographies

Del Pozo was an NYPD officer from 1997 to 2015 (rising to the rank of deputy inspector), and served as the chief of police of Burlington, Vermont, from 2015 to 2019. In New York City he was assigned to uniformed patrol in Brooklyn, intelligence, internal affairs, policy and planning, the police academy (as a trainee and later as an instructor), and commanded police precincts in the Bronx and Manhattan and the department’s Strategic Initiatives section. In Burlington, he led the police department of Vermont’s largest city.

Founding Director, Policing Project at New York University School of Law. This article was prepared for a Symposium organized by the Duke Center for Firearms Law, and hosted by the New York University Law Review. The authors would like to thank the organizers and editors for their hard work on the Symposium and this issue. They are grateful to Symposium participants, as well to Daniel Harawa, Emma Kaufman, Christy Lopez, Erin Murphy, Adam Samaha, and Chris Slobogin for helpful comments on the draft manuscript. Thanks as well to Eleanor Citron, Morgan Hylton-Farrington, Wesley Johnson, and Gabriel Shoemaker for dedicated research assistance. This work was supported by the Filomen D’Agostino and Max E. Greenberg Research Fund at New York University School of Law.