The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Second Amendment

Law Enforcement Officers Are Part of "the People," Not Above Them

Law enforcement amicus brief against Colorado magazine ban.


Two weeks ago, I filed an amicus brief in U.S. District Court in Colorado, in Gates v. Polis, a case challenging 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).

Some of the brief explains the practical mechanics of armed self-defense, and why bans on standard magazines do not impair mass shooters, but do endanger ordinary citizens, especially when attacked by multiple criminals. Another part of the brief shows that the key data created by some of the Colorado Attorney General's expert witnesses is obviously false.

But in this post, I will focus on a more fundamental argument in the brief. The law enforcement amici reject the claim that arms universally recognized as appropriate for ordinary law enforcement officers should be banned for ordinary citizens. The claim is based on the pernicious idea that law enforcement officers are above the people, rather than part of the people. Here are some excerpts from the brief:

The magazine ban attempts to divorce today's common arms of law-abiding citizens from today's common arms of law enforcement officers, including sheriffs and their deputies. The divorce, contrary to the wishes of both parties, endangers citizens and officers alike.

The arms of ordinary law enforcement officers are carefully selected for only one purpose: lawful defense of innocents in civil society. Throughout American history, many citizens have looked to law enforcement for guidance in choosing arms for the same purpose. Denying those arms to citizens and to retired law enforcement officers  endangers them for the same reasons that denying these arms to active law enforcement officers would endanger them. The most important reason is the necessity of reserve capacity, as detailed in Part II.

More fundamentally, the magazine ban violates the principles of our Constitution and of American law enforcement. Policing by consent is the American value, not militarized occupation from above.

The magazine ban is based on the sponsors' repeated claim that the "one purpose" of magazines over 15 rounds is "to kill large numbers of people quickly." This false characterization was never challenged by any legislator who voted for the bill. The pernicious notion that Colorado law enforcement officers routinely carry arms for the "one purpose" of mass killing creates a false division between officers and the citizens whom they serve. The notion reduces citizen cooperation with officers, and also endangers officers. . . .

According to the magazine ban, the very arms most commonly carried by ordinary law enforcement officers are off-limits to the community. This is backwards. As the Connecticut Supreme Court unanimously ruled, "widespread acceptance … within the law enforcement community also supports the conclusion that they [police batons] are not so dangerous or unusual as to fall outside the purview of the second amendment." State v. DeCiccio, 105 A.3d 165, 200 (Conn. 2014). . . .

Amici reject the implied libel that the ordinary arms of American peace officers are the weapons of mass killers. Consider the following descriptions:

  • "Officer X shot the suspect with common Glock 17 equipped with a standard 17-round magazine, well-suited for lawful defense of self and others."
  • "Officer X shot the suspect with an 'unusually dangerous' handgun whose only purpose is mass killing."

The first statement is accurate. The second inflames anger and hatred against law-abiding law enforcement officers.

If Defendant prevails because standard magazine are "unusually dangerous," then the most typical arms of average deputies and officers are called into question, as supposedly excessive.

The magazine ban envisions policing from above, employing weapons of war. This is contrary to policing by consent. Law enforcement officers, including elected sheriffs, are part of their community. Colo. Const., art. XIV, §8. They enforce civil law, not martial law.

In 1828, United Kingdom Home Secretary Robert Peel (later Prime Minister) led a committee to study police. The resulting Metropolitan Police Act of 1829 created the first disciplined police force for the Greater London area. Peel's "nine principles" defined a policing system founded on public support. Because the police act with public approval, the public and police cooperate to tip the community balance against the criminals. Peel's principles were designed so that the power granted to government to carry out policing would not be abused. In the Peelian principles of law enforcement, "[T]he police are the public and the public are the police, the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence."

In contrast, the magazine ban treats police like soldiers of an occupying army. The ordinary handgun and rifle magazines routinely carried for reasonable defense by deputies and other LEOs are declared to be weapons for mass murder. Supposedly, possession of weapons for mass killing by law enforcement is to be accepted as normal. What a perverse vision of police-community relations! Law enforcement officers are servants of the people, not their masters.

The idea that an ordinary sheriff's deputy on bike patrol is carrying arms made "only" for militarized mass killers poisons community relations. The divisive attitudes fostered by the magazine ban make the public less willing to cooperate with law enforcement. Sometimes, such attitudes result in attacks on officers.

In truth, the ban's law enforcement exemption falsifies Defendant's thesis that standard magazines are unneeded for lawful defense. . . .

Defendant might argue that the law enforcement exemption is reasonable because law enforcement officers have more training and stronger vetting than does the average citizen. This is true. But the magazine ban is not a law about extra training or more thorough background checks. The magazine ban is ban for every citizen, no matter how impeccable of character and no matter how proficient.

Because the ban does not even allow inheritance, Colorado is on a path to become a state where typical law enforcement officers must appear among the people while carrying arms that are forbidden to the people. Such a repressive scenario contradicts our consensual Constitution. The Second Amendment protects "the security of a free State." A free State—a state of consent—is the opposite of law enforcement officers being above "the people."