UPDATE: The amicus brief that was filed incorrectly omitted the names of Sheriffs Lou Vallario from Garfield County and Shawn Mobley from Otero County. The amici have filed a motion with the Colorado Supreme Court to correct the omission. The article has been updated accordingly.
DENVER–Thirty-two Colorado Sheriffs joined The Colorado Law Enforcement Firearms Instructors Association and the Independence Institute* in filing an amicus curiae (friend of the court) brief with the Colorado Supreme Court opposing Colorado’s firearms magazine ban on Monday.
The brief, written by Independence Institute Research Director and Denver University law professor David Kopel, provides the Court with the concerns of county sheriffs with respect to the effects of the magazine ban on both law enforcement officers as well as on the ability of citizens to defend themselves using firearms.
The original case was brought in Denver District Court in Sept. 2013 by Rocky Mountain Gun Owners and the National Association for Gun Rights, among other plaintiffs, challenging the constitutionality of the ban.
The complaint was thrown out by the trial court, but the Colorado Court of Appeals found that the plaintiffs’ argument that the law, House Bill 13-1224, banning magazines that can hold more than 15 rounds, violated the Colorado Constitution was improperly dismissed. The case was remanded to the District Court for further consideration.
After a week-long trial a judge ruled against the plaintiffs, saying that the magazine ban is a “reasonable exercise of the police power designed to address a specific and valid governmental concern regarding the health, safety and welfare of people in Colorado.”
The plaintiffs appealed again in 2017, and the Court of Appeals ruled the law does not violate article II, section 13 of the Colorado Constitution, agreeing with the trial court that the standard of review is if the law is a “reasonable exercise” of the state’s power to regulate “for the protection of public health and safety.”
The plaintiffs then filed a petition with the state Supreme Court in Nov. 2018 asking it to review the Court of Appeal’s reasoning and conclusions, saying that the right to keep and bear arms is a fundamental right guaranteed under the state Constitution and that therefore the standard of review for all gun laws must be much higher than that.
The Supreme Court granted the request for review.
After the request was granted, 32 Colorado Sheriffs asked to file an amicus brief to further enlighten the Court on the issues and concerns of Colorado sheriffs. That request was granted Monday.
In the amicus brief Kopel argues that the 15-round magazine limit makes many standard-issue firearms magazines illegal. Many handguns, he says, come from the manufacturer with 16 to 20 round magazines, and many rifles come with 30 round magazines.
“Prohibition is based on the false premises that standard magazines have no legitimate uses, and that their elimination has no effect on lawful self-defense,” Kopel writes. “Sheriffs and deputies possess standard capacity magazines…for the same reason that law-abiding citizens should: they are best for lawful defense of self and others. When defenders have less reserve ammunition, they fire fewer shots. This increases the danger that the criminal(s) will injure the victim.”
Pointing out that the Court “brushed off” the fact that magazines containing more than 15 rounds were “in common use in Colorado in 1876,” Kopel said, “Banning the very arms that were typically owned by Coloradoans when they ratified the Constitution contradicts the text: the right “shall not be called in question.””
Proponents of the ban, including the prime sponsors in both the state House and Senate said that “large capacity magazines” have no purpose other than “mass killing,” but Kopel responded saying, “Sheriffs’ arms are not selected for mass killing. Instead, sheriffs’ arms are best for defense of self and others, including against multiple attackers.”
Distinguishing between police, who carry spare magazines and have instant radio communications to summon help, Kopel writes, “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.”
He also brought up two purposes of the state Constitution’s protection of the right to keep and bear arms, including defense of “home, person, and property,” and “in aid of the civil power when thereto legally summoned.”
Making this point Kopel says that “standard magazines” as he describes them are “exactly the magazines best suited for aid of the civil power,” including under the power of law enforcement officers to command assistance or form a posse comitatus.
A state statute gives sheriffs power to “call to their aid such person of their county as they may deem necessary.”
Two examples were given, “Most famously, large Colorado volunteer posses thwarted the escape of serial killer Ted Bundy after he escaped from the Pitkin County Courthouse. A large Hinsdale County posse in 1994 blocked the escape of two criminals on a nationwide spree, who had murdered County Sheriff Roger Coursey,” writes Kopel.
Concluding, Kopel debunks the claims of the bill’s sponsors by showing that magazine bans in other states, and the 2013 Colorado ban have “no statistically significant effect on homicide, gun homicide, or mass shooting fatalities.”
The case, 18SC817, has not yet been scheduled for arguments.
The county sheriffs signed on to the brief are: Shannon Byerly (Custer), Todd Combs (Yuma), Allen Cooper (Fremont), Garth Crowther (Conejos), Bill Elder (El Paso), Thomas Elliott (Phillips), Matt Lewis (Mesa), Anthony Mazzola (Rio Blanco), Don McDonald (Rio Grande), Tom McGraw (Park), Jason Mikesell (Teller), Tim Norton (Elbert), Brett Powell (Logan), Steve Reams (Weld), Richard Reigenborn (Adams), Danny Sanchez (Costilla), Brent Schroetlin (Grand), Aaron Shiplett (Baca), Jeff Shrader (Jefferson), Justin Smith (Larimer), Tony Spurlock (Douglas), John Stivers (Washington), Rick Valdez (Archuleta), James Van Beek (Eagle), Garrett Wiggins (Routt), Dave Martin (Morgan), Sam Zordell (Prowers), Casey Sheridan (Kiowa), KC Hume (Moffat), Don Wilson (Dolores), Shawn Mobley (Otero) and Lou Vallario (Garfield).
The brief is available here.
*Complete Colorado is a project of the Independence Institute.