Hamline Law Review
Symposium on Firearms Legislation and Litigation
vol. 6, no. 2. 1983: 333.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
LAW ENFORCEMENT PERSPECTIVE ON UTILITY OF HANDGUNS
Richard J. Brzeczek*
MR. BRZECZEK: Approximately one year ago, the Mayor of Washington, D.C. came to Chicago to talk to a Handgun Control Group. During lunch today it dawned on me, that here I am a year later in Washington, D.C. discussing essentially the same issue.
I find it rather sad that we even have to get together and meet like this. Not sad because of your enthusiasm or your energy or your desire to do something about a serious problem, but sad that we have to even acknowledge the fact that such a serious problem exists in our country. However, unless we continue to develop groups like this, to generate enthusiasm to do something about the serious problem of gun violence, the problem will only continue to get worse. The invitation I received to speak this afternoon contained a suggestion that I look at the problem from a different perspective. I am going to try to give you several different perspectives. I am not exactly sure how helpful or how interesting they may be to you, but they will be perspectives from the standpoint of a chief executive, chief operating officer of a large metropolitan police department.
My department has to serve a community in excess of three million residents in 232 square miles. Some parts of that community suffer a tremendous amount of violence on a daily basis; violence precipitated, perpetuated, and fostered by firearms in general and handguns in particular. In our work, we have to deal with a very volatile and emotional issue. Although I do not think anyone really knows exactly what the rate of crime is in this country, despite the best reporting efforts of the police departments, there is a general perception that crime is on the increase. This perception is something that must be dealt with seriously and attacked vigorously, for it alone creates many problems. The police are not doing a good [Page 334] job, we need more police, the police have to get out of their cars and on foot. These are just some of the things that people are clamoring for, not only in the city I come from, but in every major metropolitan area in this country. It boils down to the fact that the people feel that sufficient resources are not available to them from the local law enforcement agency, and as a result they are taking steps on their own to protect themselves. There is no longer a city in this country that does not have citizensí groups wanting to help the police, but yet we have to go back to the fundamental problems of what each and every individual citizen can do, and one of the things that they are doing is trying to secure themselves. They are buying bigger, better, and more locks for their apartments and homes. They are buying dogs. And in a lot of cases they are buying guns. That presents a very serious problem for law enforcement from many standpoints.
It is very difficult to argue rationally and reasonably against the wholesale acquisition of guns. Itís hard to do because in some jurisdictions the chief law enforcement officer comes out publicly and tells people "We canít do the job anymore. You have to buy a gun and protect yourself."
There was a very dramatic picture appearing in the newspapers last year. It went out over the wire service showing two people in Miami getting into some type of altercation in a traffic situation and somebody pulling a gun out and settling the problem right then and there. Fortunately, no one was hurt, but someone could have been hurt very seriously or even killed.
In trying to deal with the problem of firearm violence overall and trying to dissuade people as much as possible from even getting involved with firearms, there is always the argument, "I need a gun to protect my home." The counter-argument to that is that the argument is nonsense, because statistically the chances of using that firearm against the intruder are almost non-existent. Basically; the intrusions are made into the homes, into apartments, condominiums and town homes which are vacant. Since most people know they can not carry a firearm with them, they generally leave the gun at home, and as a result, the vacant home simply provides an additional commodity for the intruder to take and to resell on the street. Eventually that gun ends up in circulation to be used in the commission of a serious criminal offense such as homicide, rape, or armed robbery.
They do not understand it that way. They do not understand [Page 335] that despite the fact that in the spring of 1981 there was a very dramatic article in the Chicago Tribune in which the Bureau of Alcohol, Tobacco and Firearms demonstrated through its own research, that most of the guns that were being picked up on the streets of Chicago in connection with serious offenses were guns taken in residential burglaries in the outlying areas of the city and in the suburban areas around the city. People do not realize that exactly what they have in their home is a weapon available for potential use in a murder or other serious offense.
The other thing that saddens me about the so-called "home protection gun" is the number of really outrageous accidental shootings or unintentional shootings that take place. One of the most dramatic things that I read was an article appearing in the The Washington Post not too long ago, where an individual in Andover, Kansas, out of fear of someone making an intrusion into his home, bought a .357 Magnum. One would think that he was concerned about elephants or hippopotami making the intrusions, but he purchased that type of weapon to protect himself, his family and his home. Around 2:00 oíclock one morning he heard a noise coming from another part of the house, and as the good leader of his family, and protector of his domicile, he grabbed his .357 Magnum, ran to that part of the house where he heard the noise coming from, heard the noise again, and proceeded to discharge his firearm through the door. After he discharged the firearm, he heard a thump, opened the door and found his wife lying on the floor, fatally wounded. The reason why she was in that room at that time of the night was that she had recently given birth to a new baby and was up for the two oíclock feeding. The husband thought it was a burglar in the house, grabbed his gun, shot through the door, and killed his wife.
That is just a typical example. Maybe a little extreme but a typical example of the types of things that we see around the country resulting from the use of firearms by individual citizens.
One of the arguments I get from discussions and meetings and even debates on television with NRA people is that they try to persuade me that they know how to use a gun. I can tell you that Chief Rinaldi, of the District of Columbia, will stand here alongside of me and talk about his 3,880 police officers and I can talk about my 12,575 police officers and how well they know how to use a gun, because we do spend a lot of time, a lot of money, and a lot of effort training police officers in the use of a gun, how to point it, cock the [Page 336] hammer, and how to pull the trigger and fire under different conditions.
I think Chief Rinaldi and myself will agree that "how to use a gun" is not the problem that we have in law enforcement agencies. The problem is whether the officers know when to use the gun, and when not to use the gun, and that is the real issue with most of the people who own guns either legally or otherwise. Do they really know when to use a gun? Can they differentiate among the myriad offenses? Are they sufficiently acquainted with the intrinsic elements of different offenses so they can decide whether, in the face of that specific type of offense, a citizen can use deadly force to protect his home or protect his own life?
You will find, in looking at the use of deadly force by police officers throughout the country, that most of them will act in good faith, and that they get into trouble acting under a mistake of fact. Had the situation been what they perceived it to be, there would not have been any problems. What we are really comparing are highly trained police officers against someone who has had no training in this area, and still we have the situation where there are a lot of guns out there with people who know how to use them but do not really know when to use them.
Governmental agencies, whether in the legislative or the executive branches, have through their respective powers the opportunity to regulate various types of conduct. You can not legitimately drive a car unless you have a license, take some tests, and in most jurisdictions even attend some schooling. All that must take place as the conditions precedent to driving, and further the testing process is such that it gives the examiner a reasonable expectation that this person is able to operate a motor vehicle. And this happens in many, many other activities. For example, we entrust our health and well-being to people who have been trained, passed the test and obtained a license to practice medicine. We entrust our property rights and goods to people who have been trained, passed the test and earned the right to practice law. We entrust ourselves to people who fly airplanes, and we go on and on.
In light of these requirements, it seems somewhat ludicrous to me that when the activity is the ownership of a weapon, the ownership of what I call an inherently dangerous instrumentality, these same governmental agencies require absolutely no prior training in their usage.
I read some of the literature that the foundation provided to me [Page 337] as to their purpose. I think it is noble. I think that attorneys who have been molding the attitudes and philosophies of this country for well over 200 years are the ones that can possibly do something in this area likewise, because they are able to get away from the emotionalism of the issues and consider them in a rational manner. At the same time, however, there is a need to look at some comparisons. In addition to comparing and drawing upon the concepts involved in the area of product liability and strict liability in tort, we should also consider what other requirements can be reasonably and constitutionally placed upon the firearm owner.
The handgun control groups have been quite supportive in dealing with these issues. The unfortunate thing is that they are being overshadowed in terms of numbers by a mentality that just simply wants to go to the opposite extreme. They have also been overshadowed by the fact that there is a tremendous amount of money out there attempting to defeat what the handgun control groups are trying to do.
If you have not paid attention to it, Proposition 15, which was the handgun registration control proposition in California, lost at a rate of about two to one in the election there. That brings up something interesting. We talk about the polls, and although I think that there is some quarterbacking occuring as to the results of these polls, they showed in California that the handgun proposition Was regarded favorably by the voters of California, and yet it lost signficantly in the election.
What are some of the reasons behind the loss? Well, for several weeks prior to the election there was a full-page advertisement in the Los Angeles Times which informed readers of the names and jurisdictions of possibly several hundred police chiefs in the State of California who opposed the proposition to control and register handguns. Think about what a full one-page advertisement costs in a newspaper like the Los Angeles Times.
The problem is that there are many, many people in influential positions, influential from the standpoint of molding public policy, who in actuality are taking an emotional position on this very sensitive issue. They are not looking at the facts and figures as to what Ďis happening
When I say "influential," you might think that police chiefs are not influential, but Peter Hart, who is a reknowned pollster for a public opinion research firm in Washington, recently completed a study which indicated that people look to their local police chief as [Page 338] the authority or the expert or the consultant or the guide on local law enforcement matters.
It is unfortunate that the actual situation I discussed in California is such that they do not have several hundred police chiefs of a very large state willing to take the position of publicly supporting some efforts to restrict, not handguns per se, not registered handguns per se, but the bottom line problem of violence directed by one person against another. They simply will not go out and take that position, and it is beyond me why they do not. I should say beyond me from a purely philosophical or academic standpoint. I do not know why, or how they can take those positions with those facts continually slapping them in the face.
The overall problem of firearms is a big one. To give you an example: last year in Chicago, we seized over 16,000 guns on the streets, over 16,000, and that was rather a low year for us. We have been as high as over 21,000 in a given year. That is a lot of guns.
I can tell you that the Firearms Identification Unit is constantly busy examining those weapons, checking them, cross checking them against open homicides and open shootings. But despite our efforts, there are still a lot of weapons out there.
I think some attempts have been made by various jurisdictions to deal with the handgun problem. Of course, you have reactions and counter-reactions to these efforts. The one, of course, that received a lot of notoriety in the past year is Morton Grove, a suburb outside of Chicago, which banned handguns completely.
The counter-reaction to Morton Groveís ban was the town of Kennesaw, Georgia which required handgun ownership for self-protection. That is the kind of mentality that you have to deal with. But, at the same time there are other jurisdictions that are taking steps like Morton Grove.
We passed a new handgun registration ordinance in the City of Chicago which, although not as drastic as Morton Groveís, is an attempt to limit the possession of firearms to those who are seemingly qualified, and to limit the possession, at least on the front end, to those who are not convicted felons, and-those who are not inmates of mental institutions, or recent discharges from mental institutions, or the young, or those who are involved in drug addiction, or those with alcohol problems.
It is an attempt, but what I see happening is that the people in the metropolitan areas are looking to Congress for some type of federal legislation to deal with the problem of firearm violence; and [Page 339] that is probably the most logical and reasonable approach, because the problem results from the commerce in weapons, especially in interstate commerce.
As you know, Congress has been basically unresponsive to the issue, and I think local jurisdictions are starting to take steps to pass their own local ordinances. Whether they are municipal or county ordinances, these laws may sometime in the future develop into a patchwork quilt of various ordinances which have an impact on the firearm problem.
Just as an example, Morton Grove and the City of Chicago and now the City of Evanston, Illinois, have passed handgun registration ordinances or handgun banning ordinances based on home rule powers that were given to the municipalities with the state constitutional change in 1970. There is a provision in the Illinois Constitution that says that anything that may be preempted by state statute, by action of the General Assembly, is reserved for the state and, therefore, the local municipalities cannot legislate and regulate those kinds of activities. A typical example would be the licensing of doctors or barbers. That is something to be reserved for the state.
The NRA came in with some money and got a bill introduced in the last session preempting municipalities from passing local handgun ordinances. The bill did not pass. This group will attempt every tactic and approach that they can to assert their position and undermine any impediments that may be placed on it in order to give everyone the opportunity to possess and do whatever they please with firearms.
Another issue that comes up along these lines is the issue of teflon bullets. These bullets have been developed with the idea in mind that terrorists may be wearing bulletproof vests, so police officers, who may be in a shootout with terrorists, could use this type of ammunition and penetrate the bulletproof vests. We have terrorists in this country, there is no question about it, but I think that the problem of using those types of bullets against police officers and other potential crime victims is a lot greater than worrying about having to use deadly force against terrorists. There have been jurisdictions that passed legislation and there is a bin presently in Congress which would outlaw the use of teflon bullets by anybody. Again, when that law was passed in Illinois, there was tremendous opposition by the pro-gun lobby. You could ask them questions about why they would want this type of ammunition out on the street since it serves no useful purpose other than penetrating bullet- [Page 340] proof vests, and the basic answer is, "Because it exists, we think people should have it." The second amendment. Thatís the kind of mentality we are dealing with.
For the most part, I think what I wanted to do with you this afternoon was to share some of the frustrations that a person in my position would have in dealing with these problems that confront policing in the metropolitan area.
The people in the community are looking to law enforcement agencies for direction and leadership to deal with the problem of violence on the streets in American cities. They are looking for a pro-active stance by American law enforcement agencies, and yet as you know, we cannot do these things alone. We have very little control over what happens out there on the streets unless we caní somehow tie in the legislative branch and the judicial branch to support some of the activities upon which we are embarking.
I think the time has come, despite what we hear from the NRA, to hear from what we can call the silent majority on this issue. I. think people are getting a little fed up with the overall posture of violence in this country.
We are really the international laughing stock when it comes to violence, and we cannot talk about that fact by using the slogan that people kill people, guns donít kill people. It is amazing that in a city like Tokyo, where there are ten million people living in a fairly congested, confined area, there are about as many murders in one year as there are in one week in New York City. It is just amazing that people do not see that without weapons, people living in congested areas are much less likely to have disputes which result in someone suffering great bodily harm or death.
I simply want to applaud you for the approaches that you are taking. I think that they are novel, and that they reflect what American jurisprudence and the American practice of law is about. From the standpoint that you are looking to confront a serious problem in our society, there is very, very little precedent for you to use. But through these types of conferences where reasonable people get together and use their collective intelligence to deal with a problem, I think dents will be made.
On behalf of the Mayor and all the people in the police department, I thank you for inviting me here this afternoon. It has been enjoyable, and I wish you every success. Thank you very much.
* Richard Brzeczek received his B.S. (1965) from Loyola University, Chicago, his Masters of Public Administration (1968) from Illinois Institute of Technology, and his J.D. (1972) from John Marshall Law School. He served as Superintendent of Police in Chicago, Illinois from January 1980 to April 1983. He is now a partner with the law firm of Levy and Erens in Chicago.
The following remarks were presented at the conference on "Victim Recovery: Firearm Litigation in the Eighties" in Washington, D.C. on Nov. 6, 1982.