An open carry law didn’t stop police from killing Keith Lamont Scott

On Tuesday, police officers in Charlotte, North Carolina, shot and killed Keith Lamont Scott, a 43-year-old black man. According to police, an officer shot Scott after he refused repeated orders to drop a handgun.

But North Carolina is an open carry state, meaning residents are legally allowed to carry firearms. So why was Scott’s alleged possession of a firearm reason enough to shoot him?

This wasn’t the first high-profile incident of its kind. In 2014, police officers in Ohio shot and killed John Crawford in a Walmart in Beavercreek and, in a separate shooting, 12-year-old Tamir Rice outside of a Cleveland recreation center, largely on the belief that Crawford and Rice were carrying real firearms — even though both were carrying toy guns. Ohio is also an open carry state.

Legal experts, however, say that open carry laws and the laws that govern police use of force don’t really have much to do with each other. Here’s why.

Forty-five states allow their residents to carry firearms openly in public, according to OpenCarry.org. Thirty of those states don’t require a permit to open carry. There are also varying regulations from state to state on where exactly an unconcealed gun is allowed. Ohio, for instance, allows open carry without a permit virtually anywhere — with a major exception for keeping a gun in a car, which requires a concealed carry permit.

These laws generally allow people to carry guns in public without fear of arrest. Alan Gura, an attorney who helped fight gun control laws in Washington, DC, previously said that in a state where open carry is allowed, misuse of a firearm is definitely grounds for formal police intervention, but not mere possession.

However, the open carry laws have little to do with whether a police shooting is justified, experts say. As attorney and gun rights advocate David Kopel previously explained, police officers wouldn’t necessarily be allowed to shoot someone just because he’s wielding a gun where open carry isn’t legal. Under the two Supreme Court decisions — Tennessee v. Garner and Graham v. Connor — that dictate police use of force, officers must show they had an objectively reasonable belief that a suspect was a threat up to the moment the last bullet was fired.

“Let’s say there’s no open carry,” Kopel said. “The officer has every right to intervene, to arrest, and so forth. But that doesn’t mean you can shoot the guy.” Unless that person brandishes his gun in a threatening manner, Kopel explained, a police officer wouldn’t be justified in shooting.

Prior to the Crawford and Rice shootings, police officers reportedly heard from 911 callers that the suspects were waving firearms, which turned out to be toy guns, in a threatening manner. The legal question for the officers involved in these shootings isn’t whether Crawford and Rice had a right to carry a gun in public, but whether they reasonably believed the reported threats were still present up to the moment they shot Crawford and Rice. Open carry laws don’t play a role.

The same applies to Scott in North Carolina: Did officers reasonably believe Scott was brandishing his gun in a threatening manner and about to shoot them at that moment? That’s the key question, regardless of open carry laws.

Ultimately, grand juries did not indict the officers who shot Crawford or Rice, agreeing that the cops involved in the separate shootings reasonably believed the toy guns were actual firearms and were used in a threatening manner against others. An investigation into Scott’s death is underway.

Following the shootings of Crawford, Rice, and Scott, many people questioned whether cops treat black people openly carrying guns differently than their white counterparts.

Charles Goodson, head of the Huey P. Newton Gun Club, previously called it a “valid argument.” He said his predominantly African-American group, which holds regular open carry patrols and marches in Texas, has been harassed by heavily armed police in the past. In contrast, white open carry protests in the state faced limited police attention despite high levels of media scrutiny.

Jamelle Bouie, a writer at Slate, voiced some of his concerns on Twitter, which were further echoed by the hashtag #BlackOpenCarry.

There’s evidence to support this concern: Studies on implicit bias show cops may subconsciously perceive a black person with a gun as a threat more easily than a white person with a gun.

By putting police officers through a video game simulation, Josh Correll of the University of Colorado Boulder found that cops generally pull the trigger more quickly against black suspects than white suspects when the suspect was seen carrying a weapon. That could suggest, Correll told me, that police officers may be more likely to incorrectly shoot a black suspect in a real-life environment.

“In the very situation in which [officers] most need their training,” Correll said, “we have some reason to believe that their training will be most likely to fail them.”