By Dave Kopel
America's 1st Freedom, May 2012
George Orwell’s novel 1984 described the horrors of a society with pervasive surveillance by the government. New York City Mayor Michael Bloomberg, however, seems to regard the book as more of an instruction manual than a warning.
Bloomberg’s got the police department working with the U.S. Department of Defense to develop remote gun detectors. In other words, when you are walking down the street carrying a handgun under your jacket, you can be searched without your knowledge, and your handgun will be discovered.
If you do not live in New York City and you never travel there, perhaps you think that Bloomberg’s spy program is not your problem, but you’re wrong. Its national spread is nearly inevitable, so the main question is whether or not every place that you do live or travel will legally respect your right to carry a firearm for self-defense.
As reported Jan. 17 in the New York Times, New York City Police Commissioner Raymond Kelly revealed the gun-detector program in a speech to the New York City Police Foundation. Like the mayor who appointed him, Kelly is ardently opposed to lawful gun ownership, especially the carrying of guns for self-defense.
Work on remote gun detection has been under way for years. In March 1995, under the Clinton administration, the National Institute of Justice (NIJ)—a research division of the U.S. Department of Justice—began what it calls “an aggressive program to find ways to detect concealed weapons from a safe distance.” The work has continued ever since, led by the NIJ’s Law Enforcement Technology Center, in Rome, N.Y. The research has also been supported by DARPA (Defense Advanced Research Projects Agency).
Among the researchers on remote gun detection have been Raytheon, Lockheed-Martin, JAYCOR, Millitech, Nicolet Imaging Systems, DecisionTek and the Idaho National Laboratory.
In an October 2007 report, the NIJ explained that of all the methods studied, “passive millimeter wave (MMW) cameras offered the greatest potential” (NIJ Journal no. 258; NJC 219608). Unlike some other remote detection cameras, the MMW cameras can see through a heavy coat. The NIJ pointed to two MMW models that have become commercially available: the Sago ST 150 and the Brijot BIS-WDS. You can find the corporate advertising for both of these products on the Internet.
Since the research began, the size and cost of the cameras has been reduced tenfold from the prototypes.
Here’s how they work: Humans naturally emit radiation in the infrared portion of the electromagnetic spectrum (wavelengths from 0.74 micrometers (µm) to 300 µm). Humans also emit longer radiation waves, at millimeter wavelengths (about 100 GHz). A camera that can see these portions of the spectrum can also see the shape of an object which blocks radiation—such as a firearm.
While the 2007 NIJ report touted detectors with focus on the millimeter wavelengths, the Times reported that the Bloomberg gun detectors work on the longer, infrared wavelengths. For the person carrying the gun, it doesn’t really matter which particular wavelength is searched, because the end result is the total loss of privacy from a nonconsensual, and secret, search.
NYPD spokesman Paul J. Browne told the Times that the Bloomberg gun detectors are currently effective at a range of 3 to 5 meters, and that the department is working to extend their range to 25 meters.
Even broader applications are on the horizon. A 1998 report from the Air Force Research Laboratory (AFRL-IF-RS-TR-1998-220) noted that “Passive MMW systems can be used to frisk large crowds, i.e. political demonstrators.” The report also noted the potential application of putting concealed-weapons detectors onto police vehicles. Then, everywhere the police car goes, it can automatically search everyone in the vicinity.
It seems inevitable that in the not-too-distant future, remote body scanners will be widely available, and not too expensive. Consider the body scanners now in use at U.S. airports. They did not exist a few years ago but were developed by private industry at the behest of the Federal Aviation Administration.
Perhaps you think that the Fourth Amendment to the Constitution will protect you from the Bloomberg detectors. Not necessarily. The Fourth Amendment does prohibit “unreasonable” searches and also (as interpreted) requires a court-issued warrant for some, but not all, searches.
Yet the Fourth Amendment, like almost all of the rest of the Constitution, is only a control on governments. It says nothing about nongovernment searches. The websites for Sago and Brijot show that these companies are already aggressively marketing their MMW search machines to shopping malls and other nongovernment buyers.
So when you’re walking through a shopping mall, the mall’s private security staff can scan you remotely, and if they see a hidden gun, they can call the police and have you arrested—unless, of course, you clearly have the legal right to carry in the mall.
What about searches by the government? The constitutional protections actually are weaker in practice than they are on paper.
Two key Supreme Court cases are relevant. Terry v. Ohio (1968) says that when the police have “reasonable suspicion” that a person is illegally carrying a gun, they may immediately stop and frisk the person.
The second case is Kyllo v. United States, decided in 2001. In that case, the police used passive thermal imaging to detect an unusually high amount of heat coming from a person’s garage. Suspicious that the heat indicated the use of grow lights for marijuana cultivation, the police then obtained a search warrant and discovered Kyllo’s marijuana-growing facility.
By a 5-4 vote, the Supreme Court ruled that it was unconstitutional for the police to have used thermal imaging on the home without having first obtained a search warrant.
The logic of Kyllo would seem to suggest that search warrants should be required for the use of remote gun detectors as well, except in places (such as airports) where people are deemed to have consented to a search.
However, it is by no means certain that courts would apply Kyllo to gun detector searches in public places. First of all, since the 1920s the Supreme Court has been much more rigorous about enforcing the warrant requirement for searches of homes than it has for searches in public, including searches of automobiles.
Second, Kyllo was a 5-4 split, and the split did not break down along the ideological lines of cases such as Heller. Justice Antonin Scalia’s majority opinion was joined by Justices David Souter, Clarence Thomas, Ruth Bader Ginsburg and Stephen Breyer. The John Stevens dissent was joined by Justices William Rehnquist, Sandra Day O’Connor and Anthony Kennedy. Nobody knows whether future Supreme Court appointments might result in Kyllo being overturned, or in a decision that limits Kyllo’s privacy protections only to the home.
The Court’s decision in Kyllo also had worrisome language suggesting that the use of the thermal imaging technology was unconstitutional because it was new and rare, but that might change if the technology became more common. So if the time comes when you can buy a milliwave detection system at your local Wal-Mart, the Fourth Amendment is in real trouble.
Third, and perhaps most important, there are easy ways for an anti-gun police department to evade Kyllo. Consider the tactics of the Los Angeles Police Department during the 1978-92 reign of the vehemently anti-gun Police Chief Daryl Gates.
In flagrant violation of federal wiretap laws, Gates’ LAPD conducted wiretaps without obtaining a court warrant. The LAPD kept the illegal wiretaps secret by never using the wiretap evidence itself in court. Instead, the information gleaned from the wiretaps would then be used by LAPD to target people for other, lawful surveillance. Only the lawfully obtained evidence was used in criminal prosecutions or in search warrant applications.
So now imagine the Bloomberg detectors in the hands of a rogue chief like Gates. Or, for that matter, in the hands of a rogue officer acting on his own. Ignoring Kyllo, an officer discreetly uses the Bloomberg detector to scan people as they walk down the street.
When a gun is detected, the officer then confronts the individual. The officer claims to have “reasonable suspicion” to stop and frisk the individual because the officer claims to have seen a bulge or some other indication that the person is carrying a handgun.
Perhaps the gun was actually being carried so discreetly that there was no bulge. But in court, it will be the officer’s word against the individual’s, and police officers tend to win these contests. The end result is that the individual ends up with a criminal conviction for illegal carrying.
The bottom line is this: While the NRA has been working hard for the past quarter century to protect carry rights across the nation, many people who carry handguns for protection have been sitting passively on the sidelines. They figured that they do not need to care about whether carry licenses are issued on a fair and objective basis. Instead, they imagine that so long as they are careful about keeping their handgun concealed, they have almost no risk of being caught.
In the past, that might have been true. But it’s not going to be true in the near future.
And looking a little further into the future, even the handgun in the console or the trunk of your car may not be immune to remote detection, thanks to rapidly developing technology for remote sensing of minute, airborne quantities of explosives, such as gun powder.
Thus, it is more urgent than ever to protect the right to carry nationwide. This means passing “shall-issue” licensing laws in the nine states that either deny or severely restrict Right to Carry. It also means enacting national Right-to-Carry reciprocity legislation, which passed the U.S. House of Representatives last fall but is currently stalled in the Senate.
This is one reason why the 2012 elections are so important for the Right to Keep and Bear Arms—not just the presidential election, but also congressional and state legislature elections all over the nation.
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