Second Amendment
David Kopel | 12.20.2023 7:10 PM
Proponents of bans on standard firearms magazines claim that the bans do not affect lawful self-defense, and do impair mass shooters. Supposedly, victims will be able to escape or fight back during the "critical pause" when a mass shooter is swapping magazines. The claims are not plausible, as explained in an amicus brief I filed on Nov. 30 in the U.S. District Court in Colorado. The case is Gates v. Polis, which challenges the Colorado legislature's 2013 ban on magazines over 15 rounds.
The brief was on behalf of Sheriffs and law enforcement training organizations: the International Law Enforcement Educators and Trainers Association, the Colorado Law Enforcement Firearms Instructors Association, the Western States Sheriffs Association, 10 elected Colorado County Sheriffs, and the Independence Institute (where I work).
Below are excerpts from the brief explaining how magazine bans endanger the innocent, and do not impede mass shooters.
Law enforcement officers carry standard capacity magazines—up to about 20 rounds for handguns, and 30 rounds for rifles—for the same reason that law-abiding citizens often should: they are best for lawful defense of self and others. When defenders have less reserve ammunition, they fire fewer shots, thus increasing the danger that the criminals will injure the victim. . . .
The most common type of handgun chosen by sheriffs and their deputies is the full size 9mm pistol. Although larger calibers (such as .45) are available, many deputies and citizens prefer 9mm because its recoil is easier to control, and because its ergonomics make it a good fit, including for many females. The 9mm pistols still have good "stopping power," which is the purpose of defensive shooting.
While compact or subcompact 9mm handguns have small magazines, the standard magazines for a full-size 9mm are commonly 16 or more, as in the 17-round Glock 17; the same is true for full-size 9mm pistols from Springfield, Ruger, Smith & Wesson, and similar companies.
Most law enforcement patrol cars carry a rifle, a shotgun, or both. The rifle is usually a semi-automatic with magazines of 20 or 30 rounds. A typical officer's arms are powerful enough for defense against violent criminals, and appropriate for use in civil society, because ordinary officers' arms are not military arms.
In a typical Sheriff's Office, only a small number of deputies possess genuinely military arms, such as machine guns or stun grenades. These arms are deployed only for unusual situations, such as hostage scenarios or high-risk warrant service. These are certainly not the arms that a citizen would see a deputy carrying during standard foot, bicycle, or automobile patrol. Neither sheriffs nor the public would tolerate the use of military equipment for routine law enforcement. . . .
Almost always, law enforcement officers are second responders. Because officers cannot be everywhere, and because criminals choose the time and place for their surprise attacks, crime victims are their own first responders. If a victim has the opportunity to call 911, the call is in effect a request to send armed men and women who will bring the arms sufficient to defeat the attacking criminals. While waiting for minutes for armed rescuers to arrive, the victims should have sufficient arms to repel the attackers.
Just as any gun is better than no gun, a small magazine is better than nothing. But in general, the best magazines for defeating violent attackers are the magazines chosen by prudent professionals with extensive collective experience in lawful defense. . . .
Neither citizens nor law enforcement officers frequently fire more than 15 shots in self-defense. Indeed, the vast majority of Colorado law enforcement officers never fire one defensive shot in their careers. This does not mean that officers should not carry firearms. A firearm, like a fire extinguisher, is a tool for rare emergencies, and in emergencies, essential to survival.
The largest national survey of defensive gun use found that 51.2% of incidents involved multiple attackers. See Wiliam English, 2021 National Firearms Survey: Updated Analysis Including Types of Firearms Owned, Georgetown McDonough School of Business Research Paper No. 4109494, at 10, 14-15 (Sept. 28, 2022).
Most defensive shots are misses. A New York Police Department study of 1998–2006 found an average hit rate "18 percent for gunfights," and 30 percent "in situations in which fire was not returned." Bernard Rostker et al., Evaluation of the New York City Police Department Firearm Training and Firearm-Discharge Review Process 14 (2008). Another study examined target range shooting at realistic-size targets at various distances; the hit rate for police recruits who had completed academy firearms training was 49 percent, whereas the rates for untrained, "naive" recruits with little if any prior firearms experience was 39 percent. William Lewinski, et al., The real risks during deadly police shootouts: Accuracy of the naive shooter, 17 Int'l J. of Police Sci. Management 117 (2015).
Unlike in the movies, many attackers do not desist after being hit once. See Police1, Should cops shoot to incapacitate? (May 13, 2021); English at 28–33 (examples). In general, only hits to the central nervous system or an airway instantly incapacitate. Emily Lane, Why do police shoot so many times? FBI, experts answer on officer-involved shootings, The Times-Picayune (New Orleans), July 19, 2019.
If a citizen or an officer sees one assailant, she does not know if a second assailant is unseen nearby. As officers are taught, "If you see one, there's two. If you see two, there's three." When a defender knows that she has a greater reserve, she is more likely to fire sufficient shots, because she knows she will have sufficient ammunition to deal with a possible second or third attacker.
Conversely, when a defender has fewer available shots, she must make a calculation before each shot to determine whether she can successfully make a threat-ending shot now or whether it is worth the risk to wait a few moments in hopes of a better opportunity. The defender's critical moments of hesitation could cost her life. By constricting reserve capacity, the magazine ban increases the risk of injury for victims and reduces it for attackers. That is the opposite of the Second Amendment.
Reserve capacity is even more important for citizens than for law enforcement officers. It may be impossible for a citizen under attack to extract a cell phone and dial 911. Usually, the only magazine the citizen will have is the one in her firearm. In contrast, officers generally wear small always-ready radios, to immediately summon assistance. Unlike the typical citizen, the typical officer will have several back-up magazines ready on a belt. Officers can sometimes call for back-up before taking on a situation, but the citizen never has the option, because the criminals decide the time and place for attack. Persons with mobility disabilities are impacted even more severely because they cannot retreat or take cover to change a magazine.
Law enforcement and citizens also prefer standard magazines for cover fire (a/k/a "suppression fire"). With cover fire, the defender shoots carefully to keep the attacker pinned down. This stops the attacker from being able to target potential victims and allows victims to escape. For example, at the University of Texas in 1966, the criminal shooting from a tower was pinned down by cover fire from citizens and police. Mark Lisheron, A Killer's Conscience, Austin American-Statesman (Dec. 9, 2001). Similarly, at Trolley Square, Salt Lake City, in 2007, an off-duty officer kept the shooter pinned down until a SWAT team arrived. It took 15 hits until the criminal collapsed. See Off-duty officer shrugs off 'heroic' label, Deseret News (Feb. 16, 2007). . . . .
As detailed in Part II, supra, crime victims who are forced to rely on magazines with sub-standard capacity will fire fewer defensive shots, even against multiple attackers, for fear of running out ammunition. This reduces the risk of injury to the attackers and increases the risk of injury to the victim. Usually, the citizen defender will have only the one magazine in his or her firearm. Law enforcement officers often carry two spare magazines (sometime more) on their duty belts. This is a better practice, but most citizens do not wear duty belts, so even if they had a spare magazine, they would be defenseless while fishing for a magazine in a pocket or purse.
Mass shooters operate differently. They bring enormous quantities of ammunition, and often two or more firearms. While a well-prepared citizen might have a spare magazine in a compartment in her purse, the mass shooter can arrange for all his magazines to be handy for rapid swaps; this is because the mass shooter knows in advance exactly when he will attack.
For mass shooters, magazine changes are speedy. At Columbine, one criminal used a 9mm TEC-DC9 semiautomatic pistol with one 28-round, one 32-round, and one 52-round magazine to fire 55 rounds total. The other criminal used 13 ten-round magazines in a 9mm Hi-Point 995 semiautomatic carbine to fire 96 rounds during the same period. Carey Vanderborg, Columbine Shooting Anniversary: Five Other Deadly School Shootings, Int'l Bus. Times (Apr. 20, 2012).
Likewise, the Sutherland Springs shooter changed magazines 15 times, firing at least 450 rounds in seven minutes; the Parkland shooter fired more than 150 rounds in five-and-one-half minutes, changing magazines five times; the Sandy Hook shooter fired 156 rounds in five minutes, emptying three 30-round magazines and replacing two other 30-round magazines that still contained ammunition; the Fort Hood shooter used 20- and 30-round magazines, firing 214 rounds in 10 minutes. See E. Gregory Wallace, "Assault Weapon" Lethality, 88 Tenn. L. Rev. 1, 31–32 (2020) (citing sources). At Virginia Tech, the criminal fired 174 rounds from two handguns in 10–12 minutes while walking among classrooms, and changed magazines 17 times. All his magazines—of 10 or 15 rounds—were legal in Colorado. The shooting review panel concluded: "10-round magazines . . . would not have made much difference in the incident." TriData Division, Mass Shootings at Virginia Tech: Addendum to the Report of the Review Panel 74 (Nov. 2009).
Defendant theorizes that magazine changes provide a "critical pause" allowing the opponents to retreat or to attack the shooter. This is an accurate scenario when the shooter is a citizen defending herself. Under the stress of surprise violent attacks, fine motor skills degrade. The victim may need a good number of seconds to retrieve and insert her back-up magazine.
In contrast, mass shooters are not surprised. Defendant's speculation about the "critical pause" for mass shooters is unsupported.
First, the majority of mass shootings take place over an extended time, so that the criminal can change magazines at leisure. "[C]lose examination of mass shootings also indicates that killers typically take their time, firing deliberately at individual victims over fairly long periods of time." Gary Kleck, Mass Shootings in Schools: The Worst Possible Case for Gun Control, 52 Am. Behav. Scientist 1447, 1451 (2009). "[M]ass shootings . . . usually progress over the span of several minutes or more. Given that removing a magazine and inserting a new one takes only a few seconds, a mass murderer—especially one armed with a backup gun—would hardly be stymied by the magazine size limit. It's thus hard to see large magazines as materially more dangerous than magazines of normal size." Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1489 (2009).
A study of all U.S. mass shootings 1994-2013 in which shooters used semiautomatic firearms and detachable magazines, found only one case, Tucson 2011, where the shooter may have been tackled by bystanders while swapping magazines. Gary Kleck, Large-Capacity Magazines and the Casualty Counts in Mass Shootings: The Plausibility of Linkages, 17 Just. Res. & Pol'y 28 (2016). As Kleck noted, eyewitness reports conflicted about whether the Tucson shooter was trying to reload or his gun jammed. Id. at 39–40. The reload claim comes down to the testimony of one eyewitness who insisted that Glock handguns never jam—which is not true. See Colorado Outfitters Assoc. v. Hickenlooper, Joint Appendix at 16:3358-60. At the district judge's urging, the parties stipulated that Glock pistols can jam. Id. at 18:3763. [The amicus brief here cites the Joint Appendix in the 10th Circuit appeal, 823 F.3d 537 (10th Cir. 2016) (holding no party has standing on any claim). The Joint Appendix is not available on the public Internet. The cited testimony is from the district court case, 24 F. Supp. 3d 1050 (D. Colo. 2014), by Roger Salzberger on April 9, 2014, on pages 1428-29. The stipulation that Glocks can jam came the next day, April 10, 2014, on trial transcript page 1832.] See also Sam Quinones & Michael Muskal, Jared Loughner to be charged in Arizona shootings targeting Gabrielle Giffords, L.A. Times (Jan. 9, 2011) (eyewitness descriptions of the jam).
Yet [defendant's expert George Louis] Klarevas claims that Tucson involved only a reload. Klarevas Decl., Ex. 32 ¶30.
Klarevas swears as a fact that people escaped the 2007 Virginia Tech shooting because of magazine changes. Id. There is nothing in the official report about students escaping while the shooter was reloading. See TriData Division, Mass Shootings at Virginia Tech: Addendum to the Report of the Review Panel 74 (Nov. 2009).
The Klarevas Declaration likewise states with certainty that the children at Sandy Hook "escaped their attacker as he was swapping out magazines." Klarevas Decl., Ex. 32 ¶30. But the Hartford Current article he cites states that children escaped because the shooter "stopped firing briefly, perhaps either to reload his rifle or because it jammed." Dave Altimari, et al., Shooter Paused, and Six Escaped, Hartford Courant (Dec. 23, 2012) (Ex. J to Klarevas Decl.). According to the article, it also was possible that the children escaped while the shooter was firing at others in the room. Understandably, the children's statements were "not entirely consistent." Id.
Gun jams do interrupt shooters. Clearing a jam involves both of the steps for a magazine swap (remove one magazine, and insert another) plus all the intermediate time to do whatever is necessary to clear the jam. Some jams take minutes to clear. No one knows when a gun will jam, but a criminal can anticipate and prepare for magazine changes. The random benefits of long pauses from gun jams are distinct from the very short pauses from magazine switches.
Uncited is Klarevas' prior candid admission: "a person set on inflicting mass casualties will get around any clip prohibitions by having additional clips on his person (as Loughner did) or by carrying more than one fully loaded weapon (as Virginia Tech shooter Seung-Hui Cho did)." He argued that the better approach was to improve laws to stop dangerously deranged people from acquiring firearms. Louis Klarevas, Closing the Gap, The New Republic (Jan. 13, 2011).
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