The Drug Exception to the Second Amendment

Jeronimo Yanez remembered smelling “the odor of burning marijuana” as he approached the white Oldsmobile sedan he had stopped near the intersection of Larpenteur Avenue and Fry Street in Falcon Heights, Minnesota. It was a little after 9 p.m. on a Wednesday in July 2016, and Yanez, who worked for the St. Anthony Police Department, had been assigned to patrol the streets of Lauderdale, a city just west of Falcon Heights.

The whiff of weed from the Oldsmobile, Yanez later said, figured in the threat he perceived from the car’s driver, a 32-year-old school cafeteria worker named Philando Castile. Yanez fatally shot Castile, who had a permit to carry a concealed weapon, a few seconds after learning that he had a gun in the car.

The marijuana that alarmed Yanez also figured in public comments about the shooting by Dana Loesch, a conservative radio host who at the time was a spokeswoman for the National Rifle Association (NRA). Castile’s death seemed to be a clear case of an innocent man who was killed for exercising his Second Amendment rights. But the NRA, which initially called the incident “troubling,” never took a position on whether the shooting was justified. Several journalists thought they had an explanation for the NRA’s reticence when Loesch brought up Castile’s marijuana use, which made it illegal for him to own a gun, let alone carry one in public.

Loesch rejected that interpretation of her comments. But it seemed plausible in light of the NRA’s longstanding support for the federal bans on gun possession by illegal drug users and people convicted of drug-related felonies. The organization’s enthusiasm for enforcing those restrictions illustrates a blind spot shared by many right-leaning critics of gun control, whose concerns about overcriminalization, law enforcement abuses, and violations of civil liberties usually do not extend to the war on drugs.

That inconsistency is the mirror image of attitudes among progressives, who readily recognize the injustice and racially disparate impact of drug laws while enthusiastically supporting gun laws with strikingly similar historical roots and contemporary consequences. In addition to overlooking their potential common ground, both sides tend to miss the perverse interaction between the twin crusades against guns and drugs, which combine to inflict double damage on people like Castile.

‘I Wasn’t Reaching for It’

“The reason I pulled you over,” Yanez told Castile, was that the car’s brake lights were not working properly. The top light was out, and the broken lens on the left light was covered with red tape.

Although Castile had no way of knowing it, that was not the real reason Yanez had pulled him over. The real reason was that Yanez thought Castile looked like a suspect in a recent armed robbery of a nearby convenience store. Surveillance video from the store showed two black men with handguns. One had shoulder-length dreadlocks, while the other had longer dreadlocks and was wearing glasses.

Castile likewise was a black man with dreadlocks and glasses. But at the time of the stop, Yanez told investigators from the Minnesota Bureau of Criminal Apprehension (BCA) the next day, he could not recall whether the robbers had “corn rows or dreadlocks or straight hair.”

In that interview and in a radio call before he pulled the car over, Yanez mentioned Castile’s “wide-set nose,” a detail that had not been included in the description of either robbery suspect. Jeffrey Noble, a use-of-force expert consulted by local prosecutors, concluded that “no reasonable police officer would have believed that Mr. Castile matched the description of an armed robbery suspect.”

When Yanez asked Castile for his driver’s license and proof of insurance, a dashcam video showed, Castile handed over his insurance card. “Sir,” Castile then calmly told Yanez, “I have to tell you that I do have a firearm on me.” Castile presumably was trying to avoid a surprise that might have alarmed Yanez. But his disclosure proved to be a fatal mistake.

“OK,” Yanez initially replied. “Don’t reach for it then.” Castile, who seems to have been responding to the officer’s request for his driver’s license by trying to retrieve his wallet, repeatedly assured Yanez that he was not reaching for the gun. So did Castile’s girlfriend, Diamond Reynolds, who was sitting in the front passenger seat. But Castile’s movements unnerved Yanez, who drew his gun and fired seven rounds at Castile.

“You just killed my boyfriend!” Reynolds exclaimed. “I wasn’t reaching for it,” a mortally wounded Castile said. It was one of the last things he said before he died.

The Smell of Homicidal Intent

“I thought he had the gun in his hand,” Yanez told the BCA investigators. “I thought I was gonna die.” But Noble found “the weight of the evidence supports a conclusion that the handgun was in Mr. Castile’s right front pants pocket at the time of the shooting.”

When Yanez was prosecuted for second-degree manslaughter, the jurors were more inclined to credit his account. “Some of us were saying that there was some recklessness there,” one juror said after Yanez was acquitted in June 2017, “but that didn’t stick because we didn’t know what escalated the situation: Was he really seeing a gun?”

According to Yanez, the marijuana he smelled colored his perception of Castile’s intentions. Castile’s passengers included Reynolds’ 4-year-old daughter, who was sitting in the back. “I thought…if he has the guts and the audacity to smoke marijuana in front of the 5-year-old [sic] girl and risk her lungs and risk her life by giving her secondhand smoke,” Yanez recalled during the BCA interview, “then what care does he give about me?”

Whatever risk secondhand marijuana smoke might have posed to Reynolds’ daughter, it paled in comparison with the danger created by the seven bullets Yanez fired into the car. As Noble noted, Yanez admitted “the girl was in his line of fire.”

Yanez said the fact that “the inside of the vehicle smelled like marijuana” also made him wonder why Castile was carrying a gun. “I didn’t know if he was keeping it on him for protection…from a drug dealer or anything like that or any other people trying to rip him [off],” he said.

The implication seemed to be that Yanez thought Castile might be an armed and dangerous drug dealer. While “the odor of burnt marijuana would be cause to investigate,” Noble noted, “a reasonable police officer would not have believed that Mr. Castile was a drug dealer or that he was armed to protect his illicit activity.”

Yanez’s claims about the wild inferences he drew from the smell of marijuana may be what you would expect from a cop desperately trying to avoid prison. But it is not clear why anyone else would think Castile’s marijuana use was relevant in assessing whether Yanez’s use of deadly force was reasonable in the circumstances.

‘He Had Pot in the Car’

A day after the shooting, the NRA said “the reports from Minnesota are troubling and must be thoroughly investigated.” It promised “the NRA will have more to say once all the facts are known.”

A year passed before the NRA had more to say. The month after Yanez was acquitted, Loesch discussed the case on CNN as an NRA representative. “I think it’s absolutely awful,” she said. “It’s a terrible tragedy that could have been avoided.” But she was notably noncommittal on the wisdom and justice of the jury’s verdict.

“I don’t agree with every single decision that comes out from courtrooms of America,” Loesch said. “There are a lot of variables in this particular case, and there were a lot of things that I wish would have been done differently. Do I believe that Philando Castile deserved to lose his life over his [traffic] stop? I absolutely do not. I also think that this is why we have things like NRA Carry Guard, not only to reach out to the citizens to go over what to do during stops like this, but also to work with law enforcement so that they understand what citizens are experiencing when they go through stops like this.”

Loesch’s reference to NRA Carry Guard, a training and insurance program for permit holders, could be read as implying that Castile might still be alive if he had known “what to do during stops like this.” That was a common refrain from Yanez’s defenders, who said Castile, after disclosing that he had a concealed weapon, should have immediately placed his hands on the dashboard or steering wheel and awaited further instructions from Yanez.

But Yanez never asked Castile to do that. Nor did he tell Castile to stop moving or to keep his hands in plain sight. He did not even ask Castile where the gun was. Instead he told Castile not to pull the gun out, and Castile assured him that he wouldn’t. According to Reynolds, Castile thought he was doing what Yanez wanted by retrieving his driver’s license. Perhaps Castile could have been more proactive and more sensitive to Yanez’s nervousness. But the officer had a responsibility to contro