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."

Comments

[Estragon]

What if the police officer was a woman, or black? Would they be considered part of “the people” under the currently operative 2nd amendment test?

[Estragon]

“We can’t have magazine bans because we might need to call out posses” is truly one for the books, by the way. Nothing’s ever gone wrong with THAT!

[Michael Ejercito]

Who is the victim if someone possesses a magazine?

[Michael P]

Yes. Do you have any other silly questions that need easy answers?

[Estragon]

Counsel for zachy rahimi would like a word

[Michael P]

Last I checked, he has never been a police officer.

[Estragon]

So? Those persons would not have been considered part of the “the people” at ratification of the 2nd A. Or does the mere fact of being a police officer in the present day have a retroactive historical effect on the “text history and tradition” analysis we are supposed to be doing here to evaluate firearms regs? And what would that say about the legitimacy of this whole analytical method?

[Area Man]

All free people, including women and blacks, were considered part of the people at the time of the founding. Slaves were not, but, in case you hadn’t heard, slavery was abolished. Now, all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and the state in which they reside.

[Estragon]

That’s not what rahimi’s lawyer said. I don’t even know that that’s kopel’s position. Hence my question.

[SDN]

Rahimi's lawyer is a lawyer who is obliged to make any bull$h!t argument that will get his client off. Doesn't mean it bears any approach to reality.

[Estragon]

So your theory is that the “text history and tradition” of the 2nd A, including the understanding of it at the time it was ratified, provided for unrestricted possession of firearms by freedmen and women? I suppose you have support for that?

[Noscitur a sociis]

Do they feel the same way about NFA weapons?

[Scooter]

Given that Law Enforcement in the United States is Civilian, any weapons/accessories available to law enforcement should be available to the non-prohibited public.

[Absaroka]

Heh. I can see reasonable people saying LEOs are a special case and can be trusted with bigger magazines or whatever. I disagree, but it's not crazy.

But trusting LEOs with 'weapons of war only useful for mass murder of innocents!'? Heck, we shouldn't trust soldiers with those. It just shows how unhinged some of the rhetoric is.

[Stephen Lathrop]

Kopel, unsurprisingly seems vague on American constitutionalism. Assuming LEO's have sworn an oath to defend the Constitution, they are manifestly not part of the People, but instead under the People's special constraint, along with the rest of the government.

It had not occurred to me to think of the issue that way. Maybe agents of the sovereign acting under specific constraints could reasonably be justified access to weapons barred to others who were not likewise constrained. Just speculating.

[iowantwo]

The police only have powers delegated to them by the people.

How can the people delegate powers to the police, they don't have?

[Stephen Lathrop]

What? Who doesn't have what?

[Stephen Lathrop]

Iowantwo, you've missed the mark. In American constitutionalism, the people jointly are sovereign. No individual is separately sovereign.

Acting jointly, the people can delegate powers at pleasure, without limitation. Government cannot constrain that power. If in the course of exercising their will at pleasure, the people choose to empower sworn government officials operating under the people's constraint a power that each person individually does not enjoy, there is no contradiction.

[Avi the K]

According to Hobbes and Locke, they HAD the power but delegated it to the state so that there would not be a situation of every person making and enforcing his own laws.

[Stephen Lathrop]

Avi the K, neither Hobbes nor Locke ever published a syllable on American constitutionalism, which arrived on the scene after both were dead.

To the extent you want to look to those two as influences, some rough inferences can be drawn. Locke, who published later, was nevertheless not an exemplar of modernism. He was instead represented a trailing remainder of fading pre-Enlightenment political thinking. Locke, like the pre-enlightenment church, served up a political take based on God, not experience. Hobbes, with his structural justification for sovereignty based on experience was the more modern of the two.

Locke was notably less influential than his reputation at present leads some to believe, but he did write a colonial-era charter to justify slavery and aristocratic rule throughout the American Deep South. To the extent Locke's ideas about liberty are admired today, they have been admired uncritically, principally among folks who continue to long for lost-cause justifications.

Hobbes, the more modern thinker of the two, was also the more influential among pro-Federalist founders. James Wilson, for instance, was educated in the Scottish Enlightenment, in an unmistakably Hobbesian political tradition. Wilson, although a lesser name among the principal founders, was admired and followed by several of the most influential of them, including Franklin, Hamilton, Jefferson, and Madison. Wilson was one of only 6 founders to sign both the Declaration and the Constitution. Franklin, another of the six, was a long-time Wilson associate (or perhaps more appropriately, vice versa). The penultimate and most influential draft of the Constitution was written in Wilson's hand.

You can do a thought experiment to get an interesting result. Read the DoI, all of it, concentrating on the often ignored bill of particulars. Ask yourself how much of that list of grievances seems to refer to violations of Lockean God-given rights. Then make the same comparison against Hobbesian notions of sovereignty, but recast in the emerging form of joint popular sovereignty. An alternative question is whether the primary complaint illustrated by that list is more about God-given rights, or more about a notion of Britain's offenses against a joint popular power of self-government. The latter is the Hobbesian view, and exactly in line with Wilson's political philosophy.

[Rossami]

I took an oath to uphold and defend the Constitution against all enemies, foreign and domestic. I was and am emphatically still part of the People. Absolutely nothing in that oath granted me any constitutional authority or rights greater than I held before.

State level law enforcement officers, on the other hand, do not routinely take such an oath. They might take an equivalent oath to uphold their state constitutions but that's not relevant to your analysis.

So pretty much nothing about your starting premise is correct.

[Absaroka]

I surely haven't done a 50 state survey of LEO oaths, but the WA oath must include "support the Constitution of the United States and the Constitution and laws of the state of Washington".

Just spot checking, VA: "I do solemnly swear (or affirm) that I will support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia..."

Kansas: "I will always uphold the constitution of the United
States and of the state of Kansas,..."

Couldn't find WY's oath. Only tried to find those 4.

[Scooter]

In GA I took an oath twice, both required me to 'support and defend the Constitution of the United States'. It's be weird not to, given my actions are often judged by the 14th Amendment.

[Stephen Lathrop]

Rossami, rights have little or nothing to do with this. It's mostly a question of distribution of powers, and distribution of constraints. Sworn oaths are less about conferring powers, more about voluntarily taking on personal constraints in exchange for either employment or the gift of office.

[Grifhunter]

Firearms accidents, suicides, bystanders struck, and other such bad outcomes occur with same or similar frequency between law enforcement guns and civilian owned guns. If you confine it to only licensed concealed carriers, they are as a rule safer than LEO with their guns.

Few canards are as persistent as the myth of the cop as gun expert, specially selected for naturally occurring, limited in the population mental and physical capacity for skillful gun usage.

[Stephen Lathrop]

Grifhunter, how do you suppose those relative safety statistics would look if each licensed carrier was subject multiple times a day to be ordered to a scene of suspected lawbreaking or criminal violence?

Your vague citation does not contain enough information to say what might have been done statistically to deal with that obvious difficulty. Can you show your work?

[Absaroka]

"Among police, firearms violations occur at a rate of 16.5 per 100,000 officers. Among permit holders in Florida and Texas, the rate is only 2.4 per 100,000. That is just 1/7th of the rate for police officers."

See page 38. Of course, you have been provided this information many times before.

That's from John Lott/Mary Rosh. It is also footnoted. You should check the footnotes - if you catch him/them doing a Bellesiles and making stuff up, you can be famous!

[Rossami]

Since that comparison excluded on-the-job shootings, the answer is that it'd look precisely the same. But you know that because, as Absaroka says, you've been provided direct links to that study multiple times. And even if that link is broken (it is for me this morning), the study was trivially easy to find via google.

[Absaroka]

Thanks, my bad! That link was to my copy of the downloaded PDF. Here is the link to the SSRN abstract from which you can download the full PDF.

[Grifhunter]

Steve, how do you suppose the statistics would look if cops didn't have the the benefit of the Blue Code of silence to cover up the instances where Barney Fife lets off a stray round in the locker room, or leaves their off duty gun in the bathroom stall at Chuckie Cheese?

[Martinned]

I can see why LEOs would want to submit an amicus brief against gun control. Obviously they would, euh, wait, hang on. That's nuts!

[Brett Bellmore]

You could just read it to see their reasoning.

[Martinned]

I guess they enjoy being shot at.

[Brett Bellmore]

They're not under the illusion that denying the law abiding arms will stop criminals from shooting at them. Why would you embrace such a stupid notion?

Over 200 years ago, the founders' favorite criminologist, Cesare Beccaria, wrote,

"A principal source of errors and injustice are false ideas of utility. For example: that legislator has false ideas of utility who considers particular more than general conveniencies, who had rather command the sentiments of mankind than excite them, who dares say to reason, "Be thou a slave;" who would sacrifice a thousand real advantages to the fear of an imaginary or trifling inconvenience; who would deprive men of the use of fire for fear of their being burnt, and of water for fear of their being drowned; and who knows of no means of preventing evil but by destroying it.

The laws of this nature are those which forbid to wear arms, disarming those only who are not disposed to commit the crime which the laws mean to prevent. Can it be supposed, that those who have the courage to violate the most sacred laws of humanity, and the most important of the code, will respect the less considerable and arbitrary injunctions, the violation of which is so easy, and of so little comparative importance? Does not the execution of this law deprive the subject of that personal liberty, so dear to mankind and to the wise legislator? and does it not subject the innocent to all the disagreeable circumstances that should only fall on the guilty? It certainly makes the situation of the assaulted worse, and of the assailants better, and rather encourages than prevents murder, as it requires less courage to attack unarmed than armed persons."

He was right then, and he's right now. Gun control laws don't disarm the people who NEED to be disarmed, those people don't obey laws, and it's obnoxious to pretend that black markets don't exist. They only disarm the people who won't misuse the arms.

[Stephen Lathrop]

Bellmore, if you have even a single citation to show any founding father, during the founding era, made any reference during constitutional debate, to the part of Beccaria's work you dote on, that could be a useful contribution to history. I doubt it exists. Can you show it?

[Absaroka]

Here's a source that says Thomas Jefferson copied Beccaria's quote from above (in Italian!) into his Commonplace books. No doubt because he disagreed, amirite?

[Stephen Lathrop]

Absaroka, I doubt you are right. Read again the brief list of conditions I specified, which I did to establish agreed-upon standards for historical relevance.

The link to your questionable source does not specify a founding era date, but does mention a questionably relevant later date for a translation. It is not even clear from that linked text that the passage Jefferson copied included all of the text on offer in the link, or that all of it did not come to Jefferson's attention post-founding.

I am too lazy to go to an archival Jefferson source and track that down, so maybe you can prove me mistaken. See if you can provide an actual quote from Jefferson from a known document with a known date, and my hat will be off to you.

[Absaroka]

"The link to your questionable source does not specify a founding era date,..."

Jefferson's legal commonplace book was was written between 1762 and 1767. No doubt he changed his mind by 1787, amirite?

[Stephen Lathrop]

Absaroka, if your notion is to link Beccaria to the U.S. Constitution via Jefferson, no, you are not yet right. But you have not been proved wrong, either.

You have not found relevant historical evidence to do either. You don't even know whether Jefferson, as a young student trying to teach himself Italian by copying passages, yet grasped the language well enough to understand the text he copied.

You are not entitled to presume without other evidence that everything found in the archives of historical figures is there because they approved the content. That is too often demonstrably untrue to support any such presumption. Nothing you have cited links any text by Beccaria to any substantive influence on the understanding of the Constitution or the 2A.

What you are doing is what Bellmore has been trying to do, and what Scalia tried to do with Heller. Which is to rummage through history, picking up anything you find anywhere which seems tangentially relevant topic-wise, without regard to provable historical relevance. Then you presume in your own remarks that your rummagings must have uncovered influential stuff.

History practiced on that basis makes everything potentially the cause of everything else, and, conversely, everything becomes potentially the disproof of everything else. Unrealized potential does not add up to legitimate historical inference. In fact, the larger and broader becomes the corpus of unrealized potential, the more paradoxically irrelevant it all becomes.

[Absaroka]

Props to you for "trying to teach himself Italian by copying passages"; it takes talent to argue that with a straight face! Next up: it doesn't matter that someone wrote X, because he might have just been practicing penmanship writing random words, rather than believing X.

More generally, you seem to be under the false impression that if we know something with only 95% likelihood, we have to pretend we know nothing at all, or perhaps that SL's preferred version of history governs unless disproved with 99.999% certainty. But that's not how the reality based world operates; we make reasonable inferences all the time, and your preferences don't get special treatment.

You also make inferences based on imperfect information: "GMOs in Nebraska must be bad because I see fewer insects around my friend's streetlight in Delaware", for one example. You should at least practice a little consistency.

[Michael Ejercito]

Why would you conclude so?

[iowantwo]

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.

Yes, how is it police carry guns of any sort? Its not in the constitution. I know our State Constitution never mentions granting law enforcement the power to carry and use guns.

That only path available is the power was delegated to the police.
By Who? Oh yea. The people. The people have delegated to the police their constitution power to keep and bear arms.

Its impossible to think the police have some super power the people don't have.

The police only have the power delegated to them by the people.

[Avi the K]

Armed civilians stop mass shooters when they are trained. In Israel, for example, civilians who own weapons are typically combat veterans and, unless they are over the age, reservists. In Switzerland, men are required to pwn weapons but also to undergo annual military training.

[SRG2]

Policing by consent is the American value, not militarized occupation from above.

How cute! He may even believe it.

[mydisplayname]

It's an excellent brief -- the whole thing is worth reading!

[Michael Ejercito]

Does anyone seriously contend that these magazine bans would quell gang violence in the inner cities, considering what gangs are capable of obtaining?

[Z Crazy]

If these magazines were banned, then the police can punish gang members whom they catch with these magazines. Is that too hard to understand?

[Abdul Abulbul Amir]

Police can’t punish anyone. The DA can plea bargain away the mag charge to get the J walking conviction.

[Middyman]

So you're arguing the conviction must come from the box with the spring rather than the illegally possessed firearm it is inserted into? Staggering logic there.

Magazine capacity is irrelevant to convicting criminals of illegal FIREARM possession. Seriously, you want the focus to be on boxes with springs rather than the criminal themselves?