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Police Using Data Concerning Lawful Gun Ownership to Ratchet Up Scrutiny, Escalate Tactics

Friday, February 7, 2014

In recent years much progress has been made in protecting the privacy of gun owners by restricting access to gun licensing and right-to-carry permit data, with a majority of states now limiting the availability of this information to law enforcement officers for official use. Unfortunately, two recent incidents have highlighted how government data indicating firearm ownership can be used by law enforcement officials as justification to escalate encounters with gun owners.

The latest episode took place February 4th in Des Moines, Iowa, during the execution of a search warrant by the police department of Ankeny, Iowa, on the residence of concealed carry permit holder Justin Ross and his mother Sally Prince. The search warrant was for electronics and clothes police allege are connected to a case of credit card fraud.

Around 10:20 a.m., a group of at least eight Ankeny officers clad in SWAT gear, with weapons drawn, arrived at the home, delivered a cursory knock on the door, and then used a battering ram to break into the house.  The occupants, fearful that the commotion indicated a violent burglary, hid inside the home. Surveillance cameras inside and outside the house captured a portion of the raid, before they were dismantled by the search team.

As the police were moving through the house, Ross was in a bathroom armed with a pistol, with which he was prepared to defend himself from the apparent burglars. Following an officer's unsuccessful attempt to kick in the bathroom door, Ross heard someone say "police" outside the bathroom, at which point he holstered the firearm. Following the raid, Ross told a local news outlet that had the officer succeeded in breaching the bathroom door on his first attempt, "I would have been standing there with my weapon drawn pointed at the doorway and they probably would have shot me."

Former Des Moines Police Chief William Moulder categorized the Ankeny Police department's actions as unusual, telling the Des Moines Register that "credit card cases typically involve a detective or two knocking on the door." Why then did the police use such forceful tactics? Ankeny police Capt. Makai Echer justified the department's decision by citing the officers' knowledge of Justin Ross's concealed carry permit.

As a result of the raid, police did arrest two of the home's occupants on charges unrelated to the initial search warrant, and discovered electronics, drugs and drug paraphernalia that could lead to further charges. So far Ross has not been charged with any crime.

We want to be absolutely clear that NRA is not defending the behavior of anyone in this household with respect to any underlying criminal activity. But it is equally important to defend the principle that information indicating lawful gun ownership should not be used as justification dangerously to escalate police officers' encounters with citizens, certainly not those initiated in response to suspicions of nonviolent conduct.

The Ankeny incident comes less than a month after a report surfaced of Florida concealed carry licensee John Filippidis's experience with the Maryland Transportation Authority Police (MTAP).  While that account was based only on Filippidis's statements and did not explain how the officer involved learned of Filippis's Florida concealed carry license, the fact that Filippis is a concealed carry licensee reportedly led to a lengthy roadside detention and a prolonged, intrusive vehicle search during an otherwise routine traffic stop.

The use by police of government records of lawful gun ownership to increase scrutiny, force, or aggression effectively punishes the exercise of a constitutional right, creates suspicion between gun owners and law enforcement officers, and can potentially lead to explosive and tragic consequences.  Moreover, it ignores the facts that gun ownership is common in the United States and those who obtain or carry firearms for criminal purposes rarely do so through ordinary legal channels. 

The United States Supreme Court, in the 1994 case of Staples v. United States, rejected the premise that those who possess firearms should expect to be treated like criminals. The government had argued in the case that all firearms are tantamount to narcotics and hand grenades and that anybody who possessed one therefore did so at his or her legal peril, whether or not the person had any knowledge he or she was doing anything wrong.  The Court flatly disagreed: 

Here, the Government essentially suggests that we should [apply] the … assumption that "one would hardly be surprised to learn that owning a gun is not an innocent act." That proposition is simply not supported by common experience. Guns in general are not "deleterious devices or products or obnoxious waste materials," … that put their owners on notice that they stand "in responsible relation to a public danger." …

… "[T]hat an item is "dangerous," in some general sense, does not necessarily suggest, as the Government seems to assume, that it is not also entirely innocent. Even dangerous items can, in some cases, be so commonplace and generally available that we would not consider them to alert individuals to the likelihood of strict regulation. As suggested above, despite their potential for harm, guns generally can be owned in perfect innocence.

The Court also states that "common experience" establishes "that owning a gun is usually licit and blameless conduct."

The Court may take up this issue again in the case of Quinn v. Texas, which is pending on a petition that asks the Court to consider whether police can assume occupants of a residence are dangerous, and dispense with the usual requirement to knock and announce their presence when serving a warrant, based on someone in the home lawfully owning a gun.

In the meantime, the questions raised by these cases provide reason for caution on the part of gun owners as calls increase for both the registration of firearms and for measures, like "universal" background checks, that create the information and records from which registries could later be compiled.

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