What kind of right is the right to film police?

It is pretty clear to me that there ought to be some kind of right to photograph and film police, especially arrests. And yet, at least one US District Judge Finds no First Amendment Right to Film or Photograph Police:

We find there is no First Amendment right under our governing law to observe and record police officers absent some other expressive conduct. (Fields and Geraci v. City of Philadelphia et al)

Here’s the problem: the First Amendment protects expressive conduct. We often think of the main role of the photographer as quietly observing and recording; their expressive conduct comes later, when they publish that record. Of course, there’s some reason to think that that required action is thus equally-well protected: I can’t publish a video of police if I’m not allowed to film a video of police.

But we don’t really think this is a generic right. We usually assume that ordinary folks have some right to their likeness and some expectations of privacy. Police are special, and we need enhanced rights to record their activities. Yet the First Amendment might not be designed to cover that special instance. I suspect that the right to film police would best be understood as one of those old penumbral rights no longer in fashion: a living update of the implications of the First, Fourth, and Fourteenth.

I think of filming the police sort of like I think of election monitors: the right to free and fair elections occasionally requires an ancillary right (to monitor elections and note violations) to preserve that primary right to vote. This is always a strategic or practical question, though: you wouldn’t need election monitors of the ordinary sort in Oregon, where all voting is done by mail. Under those circumstances, it would be odd for an election monitor to shove his way into your living room to make sure your postal ballot was properly prepared. But we do need some form of accountability in these matters, and under the current circumstances, photography is a good check on police abuses.

You can’t guarantee due process, reasonable search and seizure, or free expression of dissent without the ability to record interactions with police. And yet, this would fail any originalist’s test, for how can there be an implied right in an 18th century document that can only be exercised with 21st century technologies? It’s not like firearms or the printing press, where some version of the technology existed and it has merely become more effective.

Alternatively, the courts should recognize a First Amendment right to observe and record police as a variety of assembly. This, though, would subject it to much more exacting restrictions on the time, place, and manner of the recording. Legislatures might even be able to curtail filming police arrests entirely under this understanding of the right! Consider that even with a constitutional right to assemble, a city may appropriately require permits for rallies and even restrict the spaces where protests can occur. Would we accept restrictions on observing and recording police such that only credentialed journalists could do it? I think not: the power of the camera phone is that anyone can act as a citizen journalist when they see police engaged in potential misconduct.

Of course, my real problem with original meaning arguments is that they assume the framers were godlike or genius-like in their pronouncements. They certainly weren’t. We should have a lot less respect for them, a lot less of a tendency to call them Founding Fathers with capital letters. They were men, and venal ones. Most of them had slaves, and large parts of the Constitution and the Bill of Rights were designed to help them keep their slaves. When we help people draft their own constitutions–like in Iraq or East Timor–we always make sure they don’t repeat the model in the US Constitution, because it’s antiquated and usually leads to massive constitutional crises in short order. Most of US politics is basically an elaborate work-around for that; a patch on a patch on a patch of broken code.

That’s why I hope that the Supreme Court will eventually recognize filming the police as an act of expressive conduct worthy of protection under the First Amendment: not because that’s the best analysis of such cases, but because our system increasingly needs such “cheats” just to function.

Are gun suicides gun deaths?

After the President asked news organizations to compare deaths by firearms with deaths from terrorism, many did. It’s pretty striking, here’s the chart from CNN:



But not all of the charts looked the same. Vox’s chart excluded suicides, and thus came to a much smaller (though still striking) result:

gun homicides v terrorism deaths

And this raises an important question. Should we include suicides with a gun in our calculations of gun deaths? Asked that way, the answer seems obvious: of course they should count, a gun death is a gun death. But I think there are important reasons to exclude them. Suicides make up 2/3 of all firearms deaths, but those deaths are probably not preventable by restricting access to guns.

Here’s the argument in outline: people commit suicide with guns because that’s the dominant image of suicide in our culture. Serious restrictions on gun control would change the dominant image of suicide in our culture, and potential suicides would choose different methods.

And yet there’s plenty of evidence to the contrary, so it’s important to think that evidence through. In many cultures, targeting the means of suicide led to major reductions in suicide. We know that when we interview survivors, we find that 70% spend less than an hour planning, so they’re mostly using ready-to-hand methods. Britain reduced its suicide rate by changing the kinds of gas they used to power their ovens. San Francisco hopes to prevent suicides at the Golden Gate Bridge with a steel net.

And yet there are many differences between survivors and successful suicides. Successful suicides plan more carefully, and for longer, choosing deadlier methods. Successful suicides are generally older and maler than survivors. In short, successful suicides seem to mean it more than unsuccessful ones, they make determined choices based on social facts rather than psychological whims. So they won’t be deterred if forced to change methods; we need to change the social facts instead!

The National Academies of Science concluded much the same thing when last they evaluated these questions: “Some gun control policies may reduce the number of gun suicides, but they have not yet been shown to reduce the overall risk of suicide in any population.” The difference is between micro-reductions (fewer deaths at the Golden Gate bridge) and macro-reductions (fewer deaths per 100,000 people.) We can make lots of changes at the margin without touching the infra-marginal causes of suicide, which are likely not tied to method.

This is an example of Simpson’s Paradox: you can reduce the marginal propensity to commit suicide, even make small, local reductions in those numbers, but without affecting the overall rate of suicides. And the same thing goes in the opposite direction: increasing access to guns might lead to short-term and local effects on suicide, but we compensate in various ways. Otherwise, it would be hard to make sense of the fact that our suicide rate is quite low while we have more guns than anyone in the world. We’re in the middle of the pack for the OECD, and France, Finland, and Japan all beat us:

suicide rates

Why is the US suicide rate so low, given the overwhelming number of guns we have? Guns seem to massively increase our homicide rate but not our suicide rate, so what’s going on there? For the largest group of suicides: people basically understand the lethality of the method they choose, and they use less-lethal methods if they don’t want to succeed. So suicide success mostly tracks desire, not access.

Around the world suicides use different methods:

“Poisoning by pesticide was common in many Asian countries and in Latin America; poisoning by drugs was common in both Nordic countries and the United Kingdom. Hanging was the preferred method of suicide in eastern Europe, as was firearm suicide in the United States and jumping from a high place in cities and urban societies such as Hong Kong Special Administrative Region, China.”

So while of course, there’s some feasibility to reducing access to pesticides and firearms, there’s little hope of eliminating access to drugs, high places, or potential nooses.  Britain removed a major non-violent method, and saw serious reductions. We can do the same by targeting non-violent suicide methods. But the big group of suicides have a high transition rate among violent methods (hanging, firearms, jumping) while the smaller group of suicides have low transition rates among non-violent methods (ovens, drug/pesticide poisoning.)

So you can best reduce suicide by regulating access to pesticides and drugs, but regulating access to firearms leads to substitute violent methods. There’s even the risk that though relatively few people will transition from non-violent to violent methods, they’ll do so at a much higher success rate. Britain avoided that fate with its coal gas oven transition, but further targeting prescription drug poisoning might yield different results.

There’s nothing wrong with trying to make suicide more difficult; I endorse strategies that might force rethinking, like waiting periods. But I’m not convinced it’s possible to deter the determined. So in that sense, we should probably treat gun suicides more as suicides and less as gun deaths. The best evidence is that policies designed to reduce our (already low) suicide rate will target social facts, about masculinity, bonding social capital, mental health and self-worth, while the policies best tailored to reduce our (quite high) homicide rates should target a single variable: access to firearms.

An American With a Gun Kills Students, Again

I have a two year old daughter, and I’m overwhelmed every time this happens with fear and anger. I teach at a university, and I feel special fear every time there is an active shooter reported, though I quickly cover it with bravado and statistical arguments. (There were two on my old campus in a single semester a few years back.) Guns make me scared, I don’t want to be anywhere near them. I even think it’s creepy that police officers carry them.

And yet, I’m never very happy with the way these discussions go. More than perhaps any other policy discussion, there’s a palpable sense of paralysis; I have more hope for a basic income guarantee than for substantial and effective gun control. For one thing, everyone who talks about gun control of any sort has to recognize that most there are almost as many guns as people in the US. The horse has left the barn, Pandora has opened the pithos, the djinn has escaped the lamp, etc. Plus it’s impossible to amend the 2nd Amendment under anything like current partisan political conditions. So our response has to be geared towards that. It’s got to involve action and organization and policy savvy.

The NRA’s power is not primarily money: it’s a large, active, and single-issue-voting membership list. The money is comparatively small and irrelevant: all you can do with money is buy ads to affect votes. The NRA already *has* votes, and gun control advocates don’t. For instance, most liberals who want more gun control would still be happy to have Bernie Sanders as President, despite his stance on guns.

So when the President says we should become single issue voters, he’s saying we should choose guns over finance sector regulation, campaign finance consistency, real attention to inequality, pro-choice judges, funding for Planned Parenthood, climate change, and many other things that matter.

That’s what a single-issue voter is: would you vote for a member of the other party if she had a stronger pro-gun-control record than the incumbent from your party? Because NRA members will, even if they mostly don’t have to: they will primary out a viable candidate and accept a loss, which comes to the same thing.

Despite the fact that gun control proponents are in the majority, we just don’t want it enough. We have a minor desire to see fewer mass shootings; gun owners have a strong desire to support untrammeled access to guns. Forget what people say: look at what they do. And we just don’t do much about guns.

And even if we did take that single-issue stance, there’d still be a gun for every man, woman, and child in the US for decades. So we’ll continue to be a country where assholes with guns kill our children and neighbors. And Black men will continue to die at twice the rate of whites, because we talk about school shootings and automatic weapons, but not handguns used in assaults and homicides.

I want to hope that someone will give an answer to the question of what we should do–what my readers and neighbors and friends and I should do–to actually change the terrible, atrocity-ridden status quo. And yet a sober calculations suggests that despair and impotent anger is the appropriate response. The love and hope we nurture can’t reach these issues: the guns will always be a background condition of our lives, a potential risk, yet–if we are white and comfortable–a statistically unlikely one.

It’s like Camus describes in La Peste:

And, indeed, as he listened to the cries of joy rising from the town, Rieux remembered that such joy is always imperiled. He knew what those jubilant crowds did not know but could have learned from books: that the plague bacillus never dies or disappears for good; that it can lie dormant for years and years in furniture and linen chests; that it bides its time in bedrooms, cellars, trunks, and bookshelves; and that perhaps the day would come when, for the bane and the enlightening of men, it would rouse up its rats again and send them forth to die in a happy city.