How 'Open Carry' Laws In North Carolina Apply To Keith Lamont Scott's Case

MICHEL MARTIN, HOST:

We're going to return now to a story that's captured public attention in recent days, the shooting of an African-American man named Keith Lamont Scott by police in Charlotte, N.C. It was one of two police shootings of black men recently that reignited the issue of police conduct toward African-Americans and prompted ongoing protests. Demonstrators gathered today outside the Bank of America Stadium in Charlotte before the NFL game between the Carolina Panthers and the Minnesota Vikings.

And one of the issues cited by protesters was the refusal by Charlotte police to make police video of the encounter public. Yesterday, the police changed course and made some of the video public, and Police Chief Kerr Putney said the totality of evidence would make clear that the shooting was justified. Attorneys for the Scott family disagree. So we thought we would contact someone not involved with the case itself to try to understand some of the legal issues involved here, so we've called Joseph Kennedy. He's a professor at the University of North Carolina law school at Chapel Hill. He teaches criminal law and criminal investigation procedure. And he is with us now.

Professor Kennedy, thank you so much for joining us.

JOSEPH KENNEDY: My pleasure.

MARTIN: Well, first of all, I just have to ask the basic question, do you think that the video makes clear whether this was a justified shooting or not?

KENNEDY: No, it doesn't. I mean, it's - I've watched it a couple of times, and you can't see a gun in his hands. But it's hard to tell whether there is anything in his hands at all.

MARTIN: One of the things that people who are critical of the shooting have talked about is the fact that North Carolina is a so-called open-carry state. And so their argument is that Mr. Scott had a right to have a gun in his possession, even to have it in his hands, unless he was deemed to be doing something dangerous. So can you help us understand that? What does it mean to be an open-carry state?

KENNEDY: Sure. That means that, you know, you're allowed to carry a loaded weapon in public openly. You're not allowed to threaten anyone with it or brandish it in a threatening manner, but you can carry it. So, yes, one of the issues that's definitely raised by this case is, you know, assuming that the police version of what happened is true, does smoking marijuana and having a gun in a public place mean that you are dangerous?

MARTIN: Just to clarify for people, the police, in addition to the video, released a rather lengthy statement where they describe the sequence of events from their point of view. And they say that they observed Mr. Scott rolling a marijuana cigarette, a blunt. They said that they were actually at this location in order to serve a warrant on someone else, so they did not consider this a priority. But at the point at which they observed a gun, called for him to put his gun down as he exited the vehicle. So that speaks to the question that you were raising, which is, is there anything in the law that says that you cannot both have marijuana and a gun at the same time?

KENNEDY: Not specifically. So here's the question is do the police have a reasonable suspicion that you're not just armed but dangerous? So think of that in terms of three scenarios. Scenario one, the police see me littering and I have a gun on my hip. Scenario two, police see me breaking into a car with a crowbar and I have a gun on my hip. Arguably, the police are justified in pointing their guns at me in scenario two. They see me committing what is a felony in North Carolina, and the reasonable fear would be that since I have a gun, maybe I'll use it to resist arrest for a felony. Scenario one, it doesn't seem reasonable to sort of draw their guns on me because littering is an infraction. The question is where does smoking marijuana fit on that spectrum? Is it reasonable to assume that someone who's smoking marijuana and has a gun is also dangerous and is likely to resist to police contact with deadly force?

MARTIN: When does failing to comply with a police order justify the use of deadly force?

KENNEDY: That's the million-dollar question. And the courts and the legislatures have refrained from laying out any sort of specific guidelines for police because they're afraid of sort of handcuffing and limiting the police in dealing with a difficult, stressful encounter that requires a split-second decision.

MARTIN: I think the thing that we're all trying to understand here is from the standpoint of the laws of North Carolina and the practices of the Charlotte Police Department, what, if any, about Mr. Scott's conduct would prompt that level of response?

KENNEDY: That's a great question. And I think the only answer that I see is that they assumed that the fact that he was smoking marijuana meant that he was involved in serious criminal activity. They said that they were there to serve a warrant, you know, for a drug offense on some other individual. And it's too early to tell what they thought about, you know, Mr. Scott. If they suspected he was involved in serious criminal activity, well, that sort of individual sometimes might use deadly force to resist arrest.

On the other hand, as you sort of pointed out, it's lawful to carry weapons openly in North Carolina. So simply having a gun, it means you're armed. It doesn't necessarily mean that you're dangerous. So the issue that's really raised is how do we look at smoking marijuana? Does smoking marijuana give the police a reasonable basis to assume that you're a potentially serious violent offender, or does it just simply mean that you're one of thousands of people in our state who do smoke marijuana, notwithstanding the fact that it's illegal?

MARTIN: Joseph Kennedy is a professor of law at the University of North Carolina law school at Chapel Hill. He was kind enough to join us from his home office there. Professor Kennedy, thank you so much for joining us.

KENNEDY: Thank you, Michel.

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