The URL can be used to link to this page

Home My WebLink AboutTC Agd Pkt 2016-04-06 (2)SENIOR COUNSEL C O. MIC -FEL' SPECIAL COUNSEL JOSnun R DALE, ERIC M. NAKASU W LE£ SMITH ASSOCIATES ANNA M BAr v q MIC! -TELL C..IGLARFAM SEAN A. BRADY MATTHEW t Cues!Ro St -,0T7 M FRAN:CLAN MANOAriCT E. LEiGY SEN A MA."..nlQA C.LiNT 5 MONFORT JCISEPM A SILVOSC. ill Los ANGELES, CA ALSO ADMITTED 1N TEXAS ANO THE D I5TRICT QF COLUMBIA LATE MAIL MwTrnEW M LOS Or COUNSEL ANaeLes. CA MIC EL'& ASSOCIATES, L.C. Mayor Erin Tollini Vice Mayor Jim Fraser Councilmember Frank Doyle Councilmember Alice Fredericks Councilmember Emmett O'Donnell TIBURON TOWN COUNCIL 1505 Tiburon Boulevard Tiburon, CA 94920 town@townoftiburon.org VIA U.S. MAIL & E-MAIL Attorneys a t Law April 1, 2016 D WN[T€R'$ DIRECT CONTACT: 562-2 t 5.44453 ASARVIR@H C.'ELLAWVERS COM ' E V IE 1 2�10I.0 :� TOWN CLERK TOWN OF TIBURON Re: Ordinance Amending Municipal Code Title IV, Chapter 16 (Zoning) - OPPOSITION Dear Councilmembers: \TV'e write on behalf of our clients, the National Rifle Association of America, Inc., and the California Rifle and Pistol Association, as well as the hundreds of thousands of their members in California. including those members residing in the Town of Tiburon. Our clients oppose the adoption of the Council's proposal to amend Municipal Code title IV, Chapter 16 (Zoning) to prohibit "firearm sales as an allowable type of home occupation" in residential zones. The proposed amendment would limit home occupations to art and craft work, tailors and sewing, and office -only uses, expressly prohibiting firearm sales as a home occupation. We are concerned that the prohibition of home-based firearm businesses—coupled with the wide discretion Tiburon is afforded to deny conditional use permits ("CUPs") for all sorts of businesses in its commercial zones)—will effectively prevent firearm businesses from operating in Tiburon at all. We urge you to vote NO on this ill-conceived, business -crushing measure. We understand that the Town also plans to add "firearm sales" to the list of uses permitted in Neighborhood Commercial zones as long as the business acquires and maintains a CUP. While we do not oppose this amendment on its face, we are concerned that the CUP requirement will become a mechanism by which the Town will exercise its broad discretion to improperly deny CUPs to firearm businesses, effectively barring them from an already limited zoning area. 1 80 EAST OCEAN BOULEVARD • SurrrE 200 • LONG BEACH • CALIFORNIA • 90802 TEL: 552-216-4444 • FAX: 562-216-4445 • WWW.MICHELLAWYERS.COM April 1.2016 Page 2 of 3 I. The Prohibition on Firearm Sales as a "Home Occupation" Violates the Second Amendment and the Equal Protection Clause Prohibiting "firearm sales" as a home occupation unduly and unjustifiably burdens Second Amendment activity, and it treats similarly situated businesses differently without providing the required level of justification that the Constitution demands in violation of the Equal Protection Clause. The Second Amendment affords firearm retailers certain protections, including a right to keep and bear arms, which implies a right to buy and sell them. See Jackson v. City and Cnty. of San Francisco, cert. denied, 746 F.3d 953 (9th Cir. 2015). What's more, as the purveyors of the fundamental Second Amendment right to acquire firearms, firearm retailers—while not exempt from general commercial regulations or zoning—cannot be singled out for exceptionally harsh restrictions and regulations that do not meet heightened scrutiny. See Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68 (1981) (citations omitted). In other words, "when a zoning law infringes upon a protected liberty, it must be narrowly drawn and must further a sufficiently substantial government interest." Id. Similarly, the Equal Protection Clause requires that the government advance a justification as to why "kitchen table sellers" should be treated differently from other types of businesses the Town authorizes to operate from residences. "Where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized." Hussey v. City of Portland, 64 F.3d 1260, 1265 (9th Cir. 1995) (quoting Harper v, Va. Bd. of Elections, 383 U.S. 663, 670 (1966), and citing Kramer v. Union Free School Dist., 395 U.S. 621, 633 (1969)). Classifications that "impinge on personal rights protected by the Constitution" "will be sustained only if they are suitably tailored to serve a compelling state interest." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). The Town has not—and cannot—meet that significant burden. The proposed zoning requirements, coupled with the Town's existing firearm business licensing scheme, create a particularly harsh regulatory scheme affecting only businesses who deal in constitutionally protected goods, i.e., firearms and ammunition. The Town, however, provides no substantive justification for its differential treatment of "kitchen -table" firearm businesses as compared to other home-based businesses. Sure, the draft ordinance's "findings" claim that the amendments are "necessary for the protection of the public health, safety, and welfare." 13ut they do not explain how or why. While "further regulating firearm dealers," is one of four stated goals raised by the Council at is January 20, 2016 meeting, it is unclear why firearms businesses would merit further regulation when Tiburon already has a comprehensive firearm business licensing mechanism in place to regulate them. Ultimately, the Town has made no efforts to show ongoing problems with "kitchen -table" firearm businesses in Tiburon, nor has it provided any justification for its desire to further regulate them. Indeed, potential concerns regarding the negative impacts of those businesses are largely unfounded. When considering a firearm business zoning ordinance of its own, the City of Sunnyvale studied the secondary effects of the presence of firearm retailers, concluding there was no evidence that firearm stores are a threat to their surrounding communities. Unsurprisingly, city staff found "no evidence of increased crime, property devaluation or land use incompatibilities as the result of the 1 SO EAST OCEAN BOULEVARD • SUITE 200 • LONG BEACH • CALIFORNIA • 90802 TEL: 562-216-4444 • FAX; 562-2 16-4445 • WwW.MICHELLAWYERS.COM April 1, 2016 Page 3 of 3 [firearm] businesses.' The study also found that the majority of firearm retail businesses, including four home-based businesses, had been operating in the city for more than 20 years without incident and that there was no obvious relationship between firearm sales businesses and gun -related crime, including home-based businesses.' Ultimately, the city concluded that "there is no correlation between gun -related crimes and the location of firearms businesses."a Sunnyvale found that even storefront federal firearms licensees (`'FFLs") did not present the types of harmful effects that might justify a restrictive zoning ordinance. Were too, the Town has provided no evidence that Tiburon—or any community like it—has a problem with home-based firearm sales and increased violence, safety concerns, or other negative effects. Rather, home-based firearm businesses are uncommon, have a lower output than other firearm businesses, and are far more benign in their operation than the Town might believe. To reiterate, the proposal furthers no compelling governmental interest, and it is not sufficiently tailored to any such end. Lacking any support that firearm retailers pose any special threat to their communities, the proposal's classification and unequal treatment of those businesses cannot stand. M. CONCLusION We strongly urge the Tiburon Town Council to reject this proposal. Firearm dealers are generally some of the most upstanding members of society, and they enjoy a protected status as purveyors of a fundamental right. See McDonald v. City of Chicago, 561 U.S. 742, 745 (2010). Whether someone should be permitted to sell firearms from a residence should be based on a case-by- case consideration, not a total ban on the practice. Should you require further guidance, our office is available to discus the constitutional issues raised in this correspondence. Sincerely, Michel & Associates, P.C. l Anna M. Barvir AMBIdsk '- See 2011-7071 Location and Operation of Firearm Sales Businesses (Study Issue) Staff Report at 1 (Sept. 27, 2011), mailable at http:!!sunnyvale.ca.govPortalsfo/SunnyvalefNonCounciIR.eports/pc/2011/pc-2011-7071.pdf (last visited Mar. 30, 2016) (emphasis added) (attached as Exhibit A). 3 See id. at 6, 10. �Id. at5. !BO EAST OCEAN BOULEVARD • SUITE 200 • LONG BEACH • CALIFORNIA • 90802 TEL 562-216-4444 • FAX; 562-2 16-4445 • 'WWW.MICHELLAWYERS.COM .4SUMA,i =.��•\F�rc, �� Agenda Item #3 rw Draft for Planning Commission review on August 22, 2011 Council Date: September 27, 2011 SUBJECT: 2011-7071 Location and Operation of Firearm Sales Businesses (Study Issue) REPORT IN BRIEF The passion surrounding firearms is intense, with arguments on all sides of the issue about the effectiveness or need for additional controls and regulations. Most of these discussions, however, go well beyond Sunnyvale's purview, and are regulated by numerous existing state and federal laws. This study originated when a gun shop opened (legally) and neighbors were concerned because of the visible location and they were not given advanced notice. These concerns led to the question of whether firearm sales businesses should be restricted as to location or should require a Sunnyvale permit (see study issue paper, Attachment A). Currently, firearm sales businesses are treated the same as most other retail uses, which means they are allowed by right in a commercial zoning district. The Department of Public Safety (DPS) also issues a permit for every firearm sales business to ensure they meet the state and federal requirements, and have received a Local business license. Sunnyvale firearms dealers have been in business for decades, with little or no incident. Although there has been no evidence of increased crime, property devaluation or land use incompatibilities as the result of the businesses, residents have expressed concerns about the potential crime and public safety risk associated with a firearm sales business located near their homes and schools. The greatest concerns appear to be who is buying and selling firearms and the potential secondary land use effects of this activity. There are various ways to address this concern. One would be to require a planning permit for the use at a specific location, and the other would be to require a more rigorous permit from DPS for the dealer selling the products. Planning permits address typical land use concerns to ensure a use is compatible with its surroundings (e.g. buffers, hours of operation, noise controls, parking management, etc.), while a DPS permit would ensure the person selling firearms meets state and federal requirements, while also meeting local concerns, such as security. Staff recommends the Council adopt the draft ordinance (Attachment B) to amend the Municipal Code to: i c,i ptale fey. 12,/08 2011-7071 Location and Operation of Firearm Sales Businesses September 27, 2011 Page 2 of 11 • Add a definition for "firearms sales business;" • Prohibit these businesses in commercial and industrially -zoned districts within 200 feet of public schools in order to provide a buffer to the schools; • Require a new DPS Firearms Dealer Permit. Each permit should include additional conditions such as requiring a security plan to be installed and then inspected by the City, and that the Federal Firearm License (FFL) holder and all employees meet the state and federal requirements regarding past criminal convictions, etc. (current requirements are limited to the dealer and not the employees). BACKGROUND The majority of state and federal laws regulate the person buying a firearm (including background checks and a 10 -day waiting period) and the person or business selling firearms. There are several types of licenses and methods to sell or transfer firearms. In Sunnyvale, two retail operations have FFLs and five home-based businesses hold FFLs, plus there are: an auction business and a machine shop. The locations of those holding FFLs in Sunnyvale are shown on the map in Attachment C. The two retail businesses, Big 5 and U.S. Firearms, are located on El Camino Real. Big 5 sells only long guns (or rifles), while U.S. Firearms sells all types of firearms. Four of the home-based businesses are generally located south of Caltrain tracks and have had licenses for at least 20 years and the most recently issued home-based business issued this year is located near Highway 237. When U.S. Firearms opened for business in Sunnyvale in the fall of 2010, the owner and operator gained all the necessary permits and state and federal licenses to open. Surrounding neighbors of the business noticed the sign for the business and raised concerns to the Council, Planning Commission and staff about: the lack of notification; compatibility concerns; and the safety of children that walk by the business on the way to school. Subsequently, the Planning Commission sponsored the Study Issue, and Council ranked it number 4 of 4 for 2011 EXISTING POLICY Land Use and Transportation GOAL CI: Preserve and enhance an attractive community, with a positive image and a sense of place that consists of distinctive neighborhoods, pockets of interest, and human -scale development. Action Statement C1.1.1: Prepare and update land use and transportation policies, design guidelines, regulations and 2011-7071 Location and Operation of Firearm Sales Businesses September 27, 2011 Page 3 of 11 engineering specifications to reflect community and neighborhood values GOAL C4: Sustain a strong Local economy that contributes fiscal support for desired city services and provides a mix of jobs and commercial opportunities. Action Statement C4.1,3 Promote commercial uses that respond to the current and future retail seruice needs of the community. Policy C4.3: Consider the needs of business as well as residents when making land use and transportation decisions. Title 19 (Zoning Code) The zoning code allows many retail uses (such as firearm sales businesses) by right. Other uses, such as hotels, schools, day care centers, churches, car washes, restaurants, service stations, car sales businesses, animal hospitals, medical clinics, and the sale of alcohol at service stations requires a Planning permit such as a Miscellaneous Plan Permit (MPP) or Use Permit (UP). The sale of alcohol at a service station requires a Use Permit. The reason some uses require planning permit is because of unique aspects of the business, such as late hours, parking concerns, and possible compatibility issues. Planning permits run with the land, and not the applicant. A Miscellaneous Plan Permit (MPP) is required for retail businesses in industrial -zoned locations to ensure the use meets site requirements, such as parking and that the industrial nature of the area is not adversely affected. Horne -based businesses do not require a separate planning permit, but home occupation requirements must be met before a business license is issued (Attachment D lists home occupation requirements). These requests are referred to the Department of Public Safety for a DPS License to Sell Firearms Permit with a requirement to be renewed annually (see discussion below). Federal Law and State Law Under the federal Gun Control Act of 1968 (Title 18 U.S.C. §101 et. seq.), it is unlawful for any person to engage in the business of importing, manufacturing, or dealing in firearms without obtaining a Federal Firearms License (FFL) from the Department of the U.S. Attorney General. Dealers must also obtain a state - issued firearms dealer's license from the California Attorney General under Penal Code §12071. Licensed firearms dealers must comply with state and federal laws related to purchase and sale of firearms, such as background checks, waiting periods, handgun safety certificates, and gun registration. They are subject to inspection by the Bureau of Alcohol, Tobacco and Firearms (ATF) and the California Department of Justice. Their state and federal licenses must be 2011-7071 Location and Operation of Firearm Sales Businesses September 27, 2011 Page 4 of 11 renewed periodically, and the DPS License to Sell Firearms Permit is issued annually. Neither the federal or state gun control laws preempt the ability of cities to regulate where licensed firearms businesses may locate. The laws provide that firearms dealers must obtain a local business license and comply with all local ordinances and regulations. (18 U.S.C. §923(d)(1)(E)(i); Penal Code §12071(a)(1)(B).) In addition, cities may require that firearms dealers obtain a local permit to operate. (Penal Code §12071(a)(2).) Examples of some requirements of buyers and sellers of firearms can be seen in Attachment E. DISCUSSION Overview The Second Amendment to the U.S. Constitution states: "A well -regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed." How this amendment is interpreted and regulated is a passionate discussion for all sides of the issue. This study does not, however, include any discussion or consideration of the larger issue of the right to keep or bear firearms. It is limited to city permitting criteria related to firearm sales businesses. This study does not consider banning future firearm sales in Sunnyvale or eliminating existing businesses that sell firearms. Concerns The main concern about a firearm sales business is the sale of potentially dangerous products that have a long history of public debate. Although some retail establishments sell products that are also potentially harmful, none are as heavily regulated as firearms. The obvious reason for the regulations is the danger that can result from firearms being in the wrong hands. That may be why existing regulations are more focused on the individuals buying and selling the firearms, rather than the location of the business engaged in that activity. Factors to Consider Sunnyvale Requirements to Sell Firearms In all cases, there are two basic requirements for a Sunnyvale firearms sales business: A Business License and a License to Sell Firearms Permit from DPS. The business license application is reviewed by Planning for conformance with the zoning code. Once the business license is issued, a seller must thenreceive the DPS permit. That permit is issued once all other permit requirements are met (local, State and Federal). Basically, the DPS permit is intended to confirm 2011-7071 Location and Operation of Firearm Sales Businesses September 27, 2011 Page 5 of 11 that the seller has received all federal, state and local permits necessary to operate in Sunnyvale. Other Cities In Santa Clara County, different approaches are used in the permit process for firearms (Attachment F). Many cities in the County have specific regulations in their municipal codes relating to the sale of firearms. Palo Alto requires a Firearms Dealer Permit issued by the Chief of Police with limitations including: prohibition of firearms sales in zoning districts in which residential use is the principal permitted or maintained use; within 250 feet of a day care center, school or residential use; and within 250 feet of another firearms dealer, a cardroom, massage establishment, or adult entertainment business. San Jose specifically prohibits the sales of firearms as a home occupation. Bay Area cities regulate firearm sales differently: some require a Use Permit process, while others require a permit from the Chief of Police. There are a few cities that require both permit types, and all cities require a business license. Crime Statistics Attachment G shows a map of each business with a FFL, and the locations of crimes involving guns from January 2006 to June 2011. As can be seen in the map, there is no correlation between gun -related crimes and the location of firearms sales businesses. Considerations The sale of firearms near schools and homes creates uncertainty and apprehension to some members of the community. Most concerns seem to relate to firearms themselves, and not the store, per se. It is difficult to determine the impact a store has on a community. During review of other cities' ordinances and regulations, most of the criteria used in determining whether or not to regulate businesses are based on the perceived danger firearm sales can introduce to an area. There is no confirmed evidence that a firearm sales store increases gun -related or other crimes in an area. Listed below are some of the concerns raised about firearm sales businesses: • They can cause a decrease in nearby property values; • They create insecurity for nearby residents about their safety; • There may be a negative influence on children that may walk by the business; • A violent or criminal element could be brought into a neighborhood; • Businesses could be a source of trafficked firearms; 2011-7071 Location and Operation of Firearm Sales Businesses September 27, 2011 Page 6of11 • State and federal inspections and requirements may not be sufficient in assuring the businesses meet all laws or cover all necessary aspects in the sale of firearms; and • The sale of ammunition does not require a license, so ammunition can get into the wrong hands. Staff could find no report that substantiated the concern that a firearm sales business devalues nearby properties. Determining the impact of a firearm sales business on nearby property values is difficult to assess because of the multitude of factors that influence property values. There is also no tangible evidence that a firearm sales business within a commercial district adversely affects surrounding businesses. As the DPS map shows, in the past five years, there is no obvious relationship between firearm sales businesses and gun -related crime. These results include home-based businesses. It does not appear that the presence of a firearms sales business increases crime or introduces criminal elements into surrounding neighborhoods. Attachment H is an article from the American Planning Association that shows a security plan is the most effective tool that can be applied through land use controls. A goal of this study is to determine whether firearm sales businesses should require a specific permit, and, if so, what types of performance standards and conditions of approval would be included. As opposed to the medical marijuana study, where the complete lack of state and federal laws and guidelines created a situation where the City would become the regulating body in all ways, firearm sales have extensive regulations and requirements imposed by state and federal governments. There is a similarity between the sale of firearms and the sale of alcohol from liquor stores. In both cases, a significant concern is the effect the use has on children and young adults. In 2009, in response to the concern about the location of liquor stores near schools, the Council adopted requirements that prohibit them from being located within 200 feet of public school sites. This may be a feasible option to use for commercial firearms sales businesses since the public concern over alcohol sales has a similar basis. City Requirements and Regulations Two options the city can use to regulate the sales of firearms in Sunnyvale would be to require a discretionary permit from Planning for the use of the property, or to expand the License to Sell Firearms Permit from DPS for the 2011-7071 Location and Operation of Firearm Sales Businesses September 27, 2011 Page 7 of 11 dealer. In either case, staff has tried to avoid duplicating state and federal regulations. Planning Permits- Permits issued through the Planning Division could include either a Miscellaneous Plan Permit (MPP) or Use Permit (UP). An MPP is a staff- level review, typically with limited or no public noticing. An MPP is commonly used to consider site issues (such as parking, landscaping and architecture) or performance measures (hours of operation, noise concerns, etc.). A UP is typically required for unique or disputed land uses, or for those that have aspects about the use that requires a higher level of discretion. A UP requires a public meeting by either the Zoning Administrator or Planning Commission and requires notification of the application to surrounding property owners and tenants. Findings for approval and conditions of approval are part of both planning permits. Planning permits "run with the land", meaning that if the business owner/operator changes, the new owner can continue the use. DPS Permits- In contrast, a Firearms Dealer License could be required for a firearms dealer. Currently, DPS requires approval of a License to Sell Firearms Permit, although it is not required by code. This permit has been used for decades by DPS to ensure firearm sales businesses meet all state, federal and local licensing requirements before opening. By codifying the requirement for a Firearms Dealer License, it would create a formal process to ensure that firearms sales businesses operate securely, and provides DPS with legal authority to take enforcement action should the operation not meet any requirement for the permit. City review for this permit would focus on local issues, such as on-site security measures, plans and inspections. Other cities also require background checks for employees, inventory reports, and ammunition sales records as part of this license. A DPS permit may be a more appropriate requirement than a planning permit because public concerns center more on the sale of firearms and compliance with state and federal requirements. Home-based Businesses - Currently, the home occupation requirements in the code prohibit the sales of items from the home where a showroom is included, or where a significant amount of area is devoted to the sale of products. Mail order and internet sales are allowed from the home, as are those types of businesses (such as firearms) where the majority of the business is not conducted in person at the home; although, with firearm sales the final transaction may be concluded where the license for the business is issued (as required by state and federal law). The existing home-based firearm sales businesses meet all of the home occupation requirements. 2011-7071 Location and Operation of Firearm Sales Businesses September 27, 2011 Page 8 of 11 Distance Limitations- Some cities have distance limitations of firearms sellers from uses such as residential, schools, day care centers, and other firearm sellers. The distance limitations range from 150 feet to 1,000 feet and can include the above-mentioned uses, as well as adult businesses, card rooms, etc. In Sunnyvale, the use of distance regulations from residentially -zoned properties would effectively prohibit all home-based businesses and almost all of the commercial properties on El Camino Real since the majority of them back up to residential properties. The result would be that firearms sales businesses could mainly locate in the industrially -zoned properties in the north of the city. Another option is to limit firearm sales businesses near schools. This approach was used by Council in 2009 when new liquor stores were prohibited within 200 feet of a public school. Although this requirement would not affect many commercial properties, it would ensure a buffer between firearm stores and schools. The reason there would not be many properties affected is because most Sunnyvale schools are not Iocated near commercially -zoned areas. Attachment I shows the 200 foot distance from public schools to commercial areas. Residential home-based businesses were not included in this alternative since they have little traffic and no obvious signs of being a business. No existing business would be affected by this requirement. Prospective Application- Any proposed change is anticipated to apply only to future proposals, and would not affect existing businesses. An amortization program to bring existing businesses into current requirements would be costly and time consuming to the City. Path to Schools- Zoning distance limitations are usually calculated using the straight line method. This technique provides the most consistent and objective method for calculating setbacks and distances between uses. The study issue paper included consideration of not allowing firearm sales by using a "path to school" method. This is a very difficult method of regulating land uses since there is not a designated path between residential areas and schools; in fact, there are likely many paths possible. After evaluating this option and realizing the difficulty of codifying this approach, staff believes that a distance buffer would meet the intent of this option and would substantially eliminate the potential of a firearms store located along a heavily used school path. Signage Controls- The study issue paper also suggested a review of limiting the type of signs at firearm sales businesses. In general, the First Amendment of the Constitution limits the City's ability to regulate sign content, including firearm advertising. It would be difficult for the City to justify an exception to this Constitutional limit. The City must show that an enacted regulation 2011-7071 Location and Operation of Firearm Sales Businesses September 27, 2011 Page 9 of 11 substantially advances the City's stated interest, with evidence in support of the effectiveness of the regulation, and that other existing alternatives are not superior in terms of effectiveness and burden on speech. As Sunnyvale does not currently have empirical evidence of a problem or how a ban on firearm advertising would reduce a perceived problem, this option was not considered feasible. FISCAL IMPACT Any change in permitting requirements, or the requirement for a new permit type, should include a fee to ensure cost recovery so that there is no fiscal impact to the City. Additional fee and inspection costs would create a greater financial burden on the businesses engaged in the sales of firearms. PUBLIC CONTACT Public Contact was made through posting of the Planning Commission agenda on the City's official -notice bulletin board, on the City's Web site, and the availability of the agenda and report in the Office of the City Clerk. A public outreach meeting was held on June 29, 2011, at which approximately 120 people attended. Over 110 notices of the meeting were sent to neighborhood associations, the Chamber of Commerce, existing firearm sales businesses, the Legal Community Against Violence (LCAV), and all people who spoke at the September 28, 2010 City Council meeting during the Public Comment period of the meeting. Comments from the outreach meeting have been summarized and are part of this report (Attachment J). The majority of comments were against additional regulation for firearms sales businesses, and stating the importance of allowing and maintaining these businesses for Sunnyvale. A City web page(www.FirearmSales.inSunnvvale.com) and e-mail address FirearmSales;a`,ci.sunnvvale.ca.us have been established for the study, and all e-mails and correspondence received have been included with this report (Attachment K) . The LCAV also submitted a model ordinance for consideration in regulating firearms dealers (Attachment L). ALTERNATIVES I. Introduce an ordinance to amend the Municipal Code to: a. Create a definition in Titles 9 (Public Peace, Safety and Welfare) and 19 (Zoning) for "firearms sales" to include all firearms licensed by the state and federal governments, b. Amend the Zoning District Tables (Title 19) to prohibit firearm sales in any commercial and industrial zoning districts located within 200 feet of a public school, 2011-7071 Location and Operation of Firearm Sales Businesses September 27, 2011 Page 10 of 11 c. Amend Title 9 to require a new Firearm Dealer Permit issued by the Director of Public Safety. Such a plan may include conditions, such as: i. Require a security plan subject to approval by DPS, ii. Require the Federal Firearms Licensee and all employees to meet all State and Federal requirements for holding a license. 2. Same as number 1, but also require a Miscellaneous Plan Permit for any new firearm sales business. 3. Adopt an alternative with modifications or further restrictions desired by Council, such as: a. Require a greater buffer around public schools, b. Require a buffer for other uses, such as residential, parks, day care centers or other uses, c. Require a Use Permit with noticed public hearing. 4. Make no changes to the existing code requirements. RECOMMENDATION Alternative 1; amend the code to define "firearm sales business", prohibit those businesses within 200 feet of a public school, and codify the requirement for a permit from Public Safety. The greatest concern regarding firearm sales is the business operator that is engaged in buying and selling the firearms. The location is also a concern, but staff has not identified any adverse land use impacts associated with a firearms store. The focus of state and federal regulations is on the buyers and sellers of firearms. Codifying the requirements for a permit from DPS would provide additional public assurances of the safety of the operation of a firearms store. The goal of this permit would be to provide assurance that the business meets state and federal requirements, as well as local security requirements. Staff does not see a need to duplicate the strict regulations required by state and federal authorities. Staff recommends making no changes to the land use permitting requirements for these uses, since the store itself has not shown to be an incompatible use. In order to meet community concerns about the possible impact to children, however, staff recommends prohibiting the retail sales of firearms within 200 feet of public schools. Staff also does not see the need for a MPP or UP as the DPS Firearm Dealers Permit would allow for sufficient local controls. Until late 2010, there were seven firearm sales businesses located in Sunnyvale. The majority of these businesses, including four home-based businesses, have been operating for more than 20 years without incident. A 2011-7071 Location and Operation of Firearm Sales Businesses September 27, 2011 Page 11 of 11 new firearm sales business opened in September 2010, at which time concern was raised about the safety of such a use. This business has also operated without incident. Crime statistics have not shown negative impacts tied directly to these operations. All businesses have complied with state, federal and local regulations and requirements. The proposed changes to the code would address future businesses, and not those currently existing in Sunnyvale. Reviewed by: Hanson Hom, Director, Community Development Reviewed by: Trudi Ryan, Planning Officer Prepared by: Andrew Miner, Principal Planner Reviewed by: Dayton Pang, Interim Director, Public Safety Approved by: Gary M. Luebbers City Manager Attachments A. Study Issue Paper B. Draft ordinance C. Map of existing firearm sales businesses D. Title 19 Home Occupation requirements E. Existing requirements to buy or sell firearms F. Other cities regulations G. Map of gun -related crime in Sunnyvale H. Information from the American Planning Association I. Map of non-residential Zoning near schools J. Outreach meeting summary of comments K. Correspondence received L. Legal Community Against Violence model ordinance and discussion SENIOR COUNSEL C. D. MICHEL• SPECIAL COUNSEL JOSHUA R. DALE ERIC M. NAKASU W. LEE SMITH ASSOCIATES ANNA M. BARVIR MICHELLE BIGLARIAN SEAN A. BRAOY MATTHEW D. CUBEIRO SCOTT M. FRANKLIN MARGARET E. LEIDY BEN A. MACHiDA CLINT B. MONFORT JOSEPH A. SILVOSO, 111 LOS ANGELES, CA ALSO ADMITTED IN TEXAS AND THE DISTRICT OF COLUMBIA Mayor Erin Tollini Vice Mayor Jim Fraser Councilmember Frank Doyle Councilmember Alice Fredericks Councilmember Emmett O'Donnell TIBURON TOWN COUNCIL 1505 Tiburon Boulevard Tiburon, CA 94920 town@townoftiburon.org VIA U.S. MAIL & E-MAIL r n e y s a April 4, 2016 a w OF COUNSEL DON B. KATES BATTLEGROUND, WA Rum P. HARING MATTHEW M. I'IORECZKO LOS ANGELES, CA WRITER'S DIRECT CONTACT: 562.2 16-4444 AGARVIR@MICHELIAWPERS.COM 0/,*4400/7 (cuvta -f 1 ,lidki11Cf) Re: Ordinance Amending Municipal Code Title VI, Chapter 32 (Regulation of Firearms) — OPPOSITION Dear Town Council Members: We write on behalf of our clients, the National Rifle Association of America, Inc., and the California Rifle and Pistol Association, as well as the hundreds of thousands of their members in California, including those members residing in the Town of Tiburon. Our clients oppose the proposal to adopt an expansive package of gun control measures mandating reports of firearm theft or loss within 48 hours, requiring the locked storage of handguns, and banning the possession of standard -capacity ammunition magazines capable of holding more than ten rounds. In light of the detailed points raised in this letter, we request that this item be removed from the Consent Calendar for separate discussion. And we urge you to vote NO on this ill-conceived package of anti -gun measures. I. FIREARM THEFT AND LOSS REPORTING REQUIREMENT Proponents of theft reporting requirements often claim that requiring firearm owners to report the theft or loss of firearms will encourage responsible gun ownership, thwart "straw purchases," and assist in the investigation of crime. While laudable goals, claims that the proposal will achieve them are wildly overstated. The proposal is instead likely to trap unsuspecting, and otherwise law-abiding, gun owners, punishing them for unknowing violations of the law. Our clients thus oppose the proposed reporting mandate. April 4, 2016 Page 2 of 5 A. Theft -Reporting Ordinances Are Not Used in the Cities That Have Them In 2006, the Sacramento Police Department reported on the effectiveness of theft -reporting requirements like the one Tiburon is now considering. The study ultimately demonstrated that such ordinances are largely unused and ineffective in the cities that have adopted them.' Indeed, "no jurisdiction or agency contacted by the SPD [was] able to provide examples of (1) investigations or arrests, (2) successful prosecutions, (3) studies of effectiveness, (4) studies of the costs of enforcement, or (5) studies of fees to cover those costs." Id. at 5. SPD's review of San Francisco's experience with theft -reporting is illustrative. An experienced inspector in the SFPD Weapons Unit, who reads 3,000 reports every month, reported that he had not handled nor had he heard of any cases in which the ordinance was invoked. Id. This is hardly surprising. As a San Francisco Assistant District Attorney explained, "I do not believe it will expand my ability to prosecute crime...." That DA added: "[i]t will take special circumstances for the ordinance to be useful in prosecution, in that the person charged under the ordinance would have to be proven cognizant of the burglary or theft of the firearm." Id. In light of the study, Sacramento Councilwoman Lauren Hammond, while acknowledging that she supported the concept, conceded that even though the "ordinance ... sounds really good, it hasn't done anything.... [W]e've had an opportunity to see what it's done in other jurisdictions and it hasn't done a darned thing...." She went on to ask why the city should move forward with such a law. Tiburon would be wise consider the same question. B. Theft -Reporting Ordinances Can Do Little to Frustrate the Illegal Acts of "Straw Purchasers" or Prohibited Persons Ironically, the ordinance cannot be used against the real bad guys. No law can compel lawbreakers to report themselves. So a straw purchaser who legally buys a gun cannot be compelled to report that he resold it illegally. And since it wasn't actually lost or stolen, he hasn't violated the ordinance. Similarly, if a felon prohibited from possessing a gun illegally possesses one anyway, and it is lost or stolen, he cannot be prosecuted for failing to incriminate himself by reporting the loss. What's more, enforcement of this type of ordinance places prosecutors in a precarious legal and ethical position—which may explain why there have been few, if any, prosecutions in the cities that have these laws. Say a straw purchaser's gun is recovered at a crime scene and traced back to him. If he lies to police claiming his gun was "stolen" when he really purchased it on behalf of a prohibited person, will the Town prosecute him for something he did not do (fail to report his gun stolen when it was not), but to which he "confessed"? 1 Staff Report to Law & Legislation Committee, Update on Ordinance: Drafting Ordinance Requiring Mandatory Reporting of Theft or Loss of Firearms 4-5 (Nov. 21, 2006), available at https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web &cd=2&ved=OahUKEwjxu-XTxuTLAhVIKGMKIDC pA1MQFggjMAE&url=http%3A%2F%2Fwww.records.cityof sacrament°. org%2FV iewD oc. aspx%3FID%3Ds6tFBnt4W%2BIuRoheTbT6zBJzAtmlz70t&usg=AFQjCNHPgCjubYUq 1PRC 1Rjnx9WLPSJG4A&cad=rja (Exhibit A). 1 80 EAST OCEAN BOULEVARD • SUITE 200 • LONG BEACH • CALIFORNIA • 90802 Tr-. . =C.9-2 1 G2 -AA Ait • C'or • 9-2 1 ('i-dd. . • WWW MIC:HFI 1 AWYFRS COM April 4, 2016 Page 3 of 5 C. Theft -Reporting Ordinances Discourage Reporting and Frustrate Investigations Most people already report the theft or loss of their firearms in hopes of getting them back if recovered by law enforcement and to ensure they are not implicated in any crime that may be committed with them. To mandate such reporting and attaching criminal penalties for failing to comply only further victimizes the victim. And it will encourage those who miss the 48-hour reporting window not to report their loss at all for fear of criminal penalty. Indeed, legal representation is advised when a firearm is first discovered missing because the ordinance authorizes prosecution if the missing gun was not reported when the owner "should have known" the gun was missing—whenever that may be determined to have been. Once an attorney is involved, the attorney communicates with the police and often advises the victim to remain silent. The process frustrates the investigation of the crime involving the lost or stolen firearm while the possible liability of the victim for having the firearm stolen is evaluated. As a practical matter then, the measure is more likely to hinder police investigations than to facilitate them. Ultimately, the Town should not be in the business of passing criminal laws proven to be ineffective or unused—especially when it has failed to identify any concrete problems Tiburon has had regarding the reporting of firearm thefts, the tracing of guns used in crime, or "straw purchases." The proposal is indeed an ineffective solution in search of a problem. II. LOCKED STORAGE OF HANDGUNS The proposal would also require handguns in a residence to be kept in a locked container or disabled with a trigger lock, unless carried by an individual over 18 or under the control of a peace officer. For the reasons discussed below, our clients oppose this amendment. A. The Proposed Locked Storage Ordinance Is Preempted by State Law Under the preemption doctrine, a local ordinance must be struck down if it duplicates state law, conflicts with state law, or enters into a field wholly occupied by the state to the exclusion of local regulation, expressly or impliedly. Fiscal v. City and County of San Francisco, 158 Cal. App. 4th 895, 903-04 (2008). Dictating the mariner in which residents keep their firearms within their own homes, requiring that they keep their handguns in a locked container or disabled with a trigger lock unless carried, is preempted insofar as it contradicts state law and enters into an area of law fully occupied by the state. First, Tiburon's locked storage proposal is preempted as contradictory to state law to the extent it dictates the manner one must store their firearms in the home, disallowing methods explicitly contemplated by the state. See O'Connell v. City of Stockton, 41 Cal. 4th 1061, 1068 (2007). California maintains a comprehensive set of statutes, creating liability for the improper storage of a firearm whenever a minor or prohibited person accesses a firearm and carries it to a public place or uses it to cause death or bodily injury. Cal. Penal Code §§ 25100-25135, 25200-25225. Liability is subject to an equally comprehensive set of exceptions. Id. at §§ 25105(a) -(g), 25135(a)(1)-(6), 25205. Specifically, state law exempts one from liability whenever the firearm is: (1) (2) (4) (5) Kept in a locked container; Kept in a location reasonably believed to be secure; Carried on one's person; Kept in close enough proximity to the person to be retrieved and used as if it were carried on one's person; or Locked by a locking device. 1 80 EAST OCEAN BOULEVARD • SUITE 200 • LONG BEACH • CALIFORNIA • 90802 1 L: -AAAA • r e• 1 %-QQdS • \NMl1N 1%4Ir9.4 FI 1 &WYFRM f:(1M April 4, 2016 Page 4 of 5 Id. By its express terms, Tiburon's proposal strips from ordinary residents the right to engage in behavior deemed lawful by the state. For it flatly denies individuals two options explicitly authorized by state law—i.e., to keep their firearms in a secure location (locked or not) or to keep them within close enough proximity to be retrieved and used as if carried on one's person—thereby contradicting state law. Second, the proposal is impliedly preempted by state law because the storage of firearms is fully and completely regulated by the Penal Code, occupying the entire field of firearm storage to the exclusion of local regulation. See Fiscal, 158 Cal. App. 4th at 903-04. Aside from the prevention of access statutes described above, California mandates that any firearm sold by a licensed dealer must be accompanied by a safety device. Cal. Penal Code § 23635(a). Similar requirements apply to the sale of long guns. And there are several storage requirements when one lives with someone who is prohibited by state or federal law from owning firearms. Id. at § 25135. Because the state's firearm storage scheme is so comprehensive, any local interference with that scheme (except that which was expressly authorized) is likely preempted. B. The Proposed Locked Storage Ordinance Violates the Second Amendment The "inherent right of self-defense has been central to the Second Amendment right[,]" a right that is "most acute" in the home. District of Columbia v. Heller, 554 U.S. 570, 628 (2008). At issue in Heller was a D.C. ordinance substantially similar to the locked storage ordinance Tiburon proposes—requiring residents to keep lawfully owned firearms "unloaded and disassembled or bound by a trigger lock or similar device." Id at 630. The Supreme Court expressly held that such a law, barring the act of "rendering any lawful firearm in the home operable for the purpose of immediate self-defense[,]" violates the Second Amendment. Id. at 635 (emphasis added). Tiburon's proposed locked storage ordinance is completely at odds with Heller. The fact the Supreme Court recently declined to review Jackson—an appeal regarding the denial of a request to temporarily enjoin the enforcement of a similar law—should not be read as tacit approval of the ordinance. Indeed, dissenting Justices Clarence Thomas and Antonin Scalia stated in no uncertain terms that the San Francisco ordinance at issue in Jackson was clearly unconstitutional, noting that the Ninth Circuit's decision was in "serious tension with Heller." Jackson v. City & County of San Francisco, cert. denied, 135 S. Ct. 2799, 2800 (2015). The dissent sends a strong message that the Second Amendment analytical framework must not be overly deferential to the government. III. "LARGE CAPACITY MAGAZINE" POSSESSION BAN The proposal would, subject to a number of exceptions, ban the possession of magazines capable of holding more than 10 rounds of ammunition. Because the proposal is preempted by state law and violates the Second Amendment, our clients oppose it. A. Banning "Large Capacity Magazines" Is Preempted By California Law Recall, under the preemption doctrine, a local regulation is void if it duplicates, conflicts with, or enters a field wholly occupied by the state to the exclusion of local regulation, either expressly or by implication. Fiscal, 158 Cal. App. 4th at 903-04. By prohibiting the possession of magazines over ten rounds, items that are already heavily regulated by state law, the 1proposed "large capacity magazine" law both conflicts with and enters a field fully occupied by state law. It is thus preempted by state law. 2 State law prohibits the manufacture, importation, sale, giving, lending, buying, or receiving of arty "large -capacity" magazine, Cal. Penal Code § 32310. It does not prohibit their mere possession. Indeed, many lawfully owned "large -capacity" magazines existed well before the state sales restriction took effect in 2000. 1 80 EAST OCEAN BOULEVARD • SUITE 200 • LONG BEACH • CALIFORNIA • 90802 _...., .. . — 41 . . . - rAA= • ..n.n., .nn uCi 1 AM/VCCG rrlr.A April 4, 2016 Page 5 of 5 Notably, our office is currently involved in litigation against Los Angeles on preemption grounds for passing a nearly identical ordinance. It is in the Town's best interests to wait until that case, Bosenko v. Los Angeles, L.A. Super. Ct. Case No. BS 158682, is resolved before acting. B. Banning "Large Capacity Magazine" Violates the Second Amendment The Second Amendment protects arms "typically possessed by law-abiding citizens for lawful purposes" or those "in common use for lawful purposes." Heller, 554 U.S. at 572, 624. That protection clearly extends to common ammunition feeding devices necessary for the exercise of the right. Fyock v. Sunnyvale, 779 F.3d 991, 997 (9th Cir. 2015). Under any level of scrutiny, a flat ban on items protected by the Second Amendment is unconstitutional. See Heller, 554 U.S. at 628-29 (fording D.C. ban on handguns, arms typically possessed by law-abiding citizens for lawful purposes, was unconstitutional regardless of the standard applied); see also Caetano v. Massachusetts, No. 14-10078, slip op. at 9 (U.S.S.C. Mar. 21, 2016) (Alito, J., concurring) (reasoning that a categorical ban on stun guns is unconstitutional under any level of judicial scrutiny). The lawful use of magazines over ten rounds is exceedingly common. Indeed, such magazines are "standard" on firearms owned by millions of Americans. Due to the popularity of these magazines, and because of their effectiveness for personal defense, these items are widely used (and often preferred) for home defense.3 Accordingly, law-abiding citizens are guaranteed the right to acquire, possess, and use them for lawful purposes. Heller, 554 U.S. at 628.29. That guarantee prevents the Town from banishing these items from its borders. The Town would be wise to refrain from proceeding while litigation over this issue moves forward in other jurisdictions. As you know, Sunnyvale became subject to litigation after passing a similar ban. While the Ninth Circuit recently upheld the ordinance, its review was significantly limited. That case, Fyock v. Sunnyvale, was on appeal from the denial of preliminary injunction—not a final decision on the merits. The case is currently stayed, and it remains in the early stages of litigation before the district court. The Town should wait for fmal judgment in Fyock before taking any action to bar the possession of common magazines over ten rounds. IV. CONCLUSION For the foregoing reasons, we strongly urge you to oppose the proposed gun -control package in its entirety. We also ask that this item be removed from the Consent Calendar for separate discussion and consideration in light of the new and detailed information presented in this communication. Should you require further guidance, our office is available to discuss the constitutional issues raised herein. Sincerely, MicAssociates, P.C. Anna M. Barvir AMB/mel 3 See Expert Decl. of G. Kleck (Exhibit B), Suppl. Expert Decl. of G. Kleck (Exhibit C), Expert Decl. of M. Ayoob (Exhibit D) Supp. Mot. Prelim. Inj., Fyock v. City of Sunnyvale, No. 13-05807 (2014). 1 80 EAST OCEAN BOULEVARD • SUITE 200 • LONG BEACH • CALIFORNIA • 90802 a A A A .4 • C. ... Gam!_'] 1 L^_ A A A G • ....... .....ur. 1 w....ICoc flr+.• EXHIBIT A REPORT Ts LA & LEGISLATION COMMITTEE City of Sacramento 915 I Street, Sacramento, CA 95814-2671 4 STAFF REPORT November 21, 2006 Honorable Members of the Law and Legislation Committee Title: Update on Ordinance: Drafting Ordinance Requiring Mandatory Reporting of Theft or Loss of Firearms Location/Council District: Citywide Recommendation: Staff recommends that the Law and Legislation Committee direct the City Attorney to draft an ordinance requiring mandatory reporting of the theft or Toss of firearms to police. Contact: James Maccoun, Lieutenant, 808-0866 Presenters: James Maccoun, Lieutenant, 808-0866 Department: Police Division: Fiscal/Economic Development Organization No: 2112 Description/Analysis Issue: Councilmember Kevin McCarty requested that staff research establishing an ordinance requiring gun owners to report the loss or theft of a firearm to the Police Department within forty-eight (48) hours of knowledge of Toss or theft. Consistent with the protocols established by the Committee and City Council, staff previously submitted a report with the requested information on the establishment of such an ordinance to receive direction from the Committee. Staff is currently submitting an updated report addressing concerns and answering questions expressed in the previous session. The adoption of such an ordinance could have an impact on reducing the diversion of firearms from the legal market to the illegal market and on tracking firearms in the hands of criminals, domestic violence offenders, unauthorized juveniles, and other persons prohibited by law from possessing firearms. This ordinance would require gun owners to take responsibility for the whereabouts of their weapons and prevent use of a common alibi for illegal firearm transfer. In addition, a reporting requirement could give prosecutors another weapon against illegal trafficking in firearms. Reductions in gun violence have been achieved Mandatory Firearm Theft or Loss Reporting Ordinance November 21, 2006 where communities have adopted focused, comprehensive, and innovative strategies to attack their gun violence problems. The ordinance would require that: • Person owning or in possession of a lost or stolen firearm reside within the City of Sacramento limits, or the loss or theft of a firearm occur within the City of Sacramento limits. • Persons owning or in possession of a firearm notify the Sacramento Police Department within forty-eight (48) hours of becoming aware of the loss or theft of such firearm. o Persons reporting a lost firearm provide the following information to the Sacramento Police Department: (1) type of firearm, (2) model of firearm, (3) caliber of firearm, (4) manufacturer of firearm, (5) date and place of theft or loss, (6) complete statement of facts and circumstances surrounding such theft or loss, and (7) serial number if available. • Failure to report a stolen or missing gun would be a misdemeanor. Similar ordinances have been enacted in San Francisco, Berkeley, Oakland and Los Angeles. A copy of the ordinance recently enacted in Los Angeles is attached. Policy Considerations: This ordinance would be consistent with City's mission to protect, preserve, and enhance the quality of life for present and future generations. It would also be consistent with current California law requiring registration of newly purchased handguns as a restriction on the unlawful possession of firearms. Previously Expressed Concems: • Enforcement— No jurisdiction with similar ordinances contacted by SPD staff has enforced a similar ordinance. Enforcement would be incidental to other criminal investigations. • Penalty— The penalty would be a misdemeanor, pursuant to the maximum authority for City ordinance violation. • Cost for Enforcement/ Cost Recovery— Unknown. No California city has enforced similar ordinances, and no mechanism is known or authorized for cost recovery. Any tax or fee on gun sales would require voter approval. • Bureaucracy— No special staff would be required beyond that necessary to handle a possible increase to the workloads of prosecuting City Attorney and District Attorney staff. 2 Mandatory Firearm Theft or Loss Reporting Ordinance November 21, 2006 Environmental Considerations: This report concerns administrative issues that will not have any significant effect on the environment, and that do not constitute a "project" as defined by the California Environmental Quality Act (CEQA) [CEQA Guidelines Sections 15061(b)(3); 15378(b)(2)]. Rationale for Recommendation: Staff recommends that the Committee direct the City Attorney to draft the ordinance described above to reduce the diversion of firearms from the legal market to the illegal market and therefore affect gun violence problems in the City of Sacramento. Financial Considerations: The proposed ordinance has no current fiscal effects. Emerging Small Business Development (ESBD): Not applicable. Respectfully Submitted by:/-- Approved y: Approved by: Recommendation Approved: GUSTAVO F. VENA Assistant City Manager Ref: COP 11-6 James Maccoun Lieutenant Table of Contents: Report pg. 1-3 Attachments: 1 Background pg. 4-5 2 Ordinance Sample (City of Los Angeles) pg. 6 Albert Najera Chief of Police 3 Mandatory Firearm Theft or Loss Reporting Ordinance November 21, 2006 Background: It has been estimated that only one in six guns used to commit crimes is obtained legally, and that many of the rest are stolen, trafficked, or purchased through "straw" buyers. Police officers often waste precious time and resources trying to contact the original purchaser of a firearm who later claims it was lost or stolen. "Straw" buyers often purchase weapons which they pass on to criminals, gang members, and others unable to purchase firearms legally, complicating the tasks of tracing weapon ownership and solving gun -related crimes. This ordinance would require persons owning a firearm or in possession of a firearm to report any theft or loss of their personal firearms to the Sacramento Police Department within forty-eight (48) hours of becoming aware of the Toss or theft. The purpose of this ordinance is (1) to deter the criminal use of stolen or lost weapons, (2) to facilitate the recovery of stolen or lost property, (3) to facilitate the apprehension of criminals who commit crimes with stolen or lost weapons, (4) to prevent unwarranted criminal accusations against owners who suffer the loss or theft of a firearm, (5) to deter persons from falsely claiming that a firearm was stolen or lost to avoid punishment for an illegal firearm transfer, and (6) to deter "straw" firearm purchases, in which persons purchase firearms legally and then sell these firearms to persons who are prohibited from gun ownership due to a felony conviction, age restriction, or another prohibition. The Sacramento Police Department has conducted two surveys of police departments and offices of the district attorney in three cities that have similar ordinances in their municipal codes. In July 2006, the SPD Criminal Intelligence Unit contacted police departments of the three California cities with similar ordinances: San Francisco (since 2004), Oakland (since 2003), and Berkeley (since 2001). Specific questions focused on: 1. the impact of the ordinance on the reduction of crime and the method of measurement, 2. details of arrests and convictions for violations of the ordinance, and 3. revisions in police procedures due to adoption of the ordinance. The agency personnel contacted: 1. were unaware of the ordinance, 2. reported that no investigations, arrests or convictions related to the ordinance existed, and 3. were unaware of any studies of costs of enforcement or impact on crime related to the ordinance. In October 2006, the SPD Economic Development Unit re -contacted the above- mentioned police departments and consulted with the District Attorney's Offices in Alameda County and San Francisco County. 4 Mandatory Firearm Theft or Loss Reporting Ordinance November 21, 2006 Results of this survey echoed those of the earlier survey: 1. An experienced Inspector in the Weapons Unit of the SFPD, who reads 3,000 reports every month, had not handled nor had he heard of any cases in which the ordinance was invoked. 2. A Criminal Intelligence Unit Sergeant in the Oakland PD, while aware of the municipal code, had never heard that it had been charged. 3. An Assistant District Attorney for the County of San Francisco in charge of prosecuting misdemeanors was unaware of the existence of the ordinance and therefore, had never heard of any prosecution involving violation of the ordinance. 4. An Assistant District Attorney for the County of San Francisco stated that he did not believe it would expand his ability to prosecute crime and that it would take special circumstances for the ordinance to be useful in prosecution, in that the person charged would have to be proven cognizant of a burglary or theft of the firearm. 5. An Alameda County Deputy District Attorney who prosecutes weapons charges had not used the ordinance to prosecute and had not heard of anyone else using it. 6. A Berkeley PD Lieutenant also had not used the ordinance nor heard of its use. In short, no jurisdiction or agency contacted by SPD has been able to provide examples of: 1. investigations or arrests, 2. successful prosecutions, 3. studies of effectiveness, 4. studies of the .costs of enforcement, or 5. studies of fees to cover those costs Additional Notes: ❖ On September 29, 2006, Gov. Schwarzenegger vetoed Senate Bill 59 (mandating reporting of stolen or lost firearms or parts of firearms to law enforcement within 5 working days of the time the person should reasonably have known of the theft or loss). In doing so, the Governor: 1. noted that the measure "could result in cases where law-abiding citizens face criminal penalties simply because they were the victim of a crime " 2. cited "unproven results of jurisdictions in California that have passed similar measures." • Persons who illegally possess a firearm cannot be required to incriminate themselves by reporting its loss. Haynes v. United States 390 U.S. 62 (1968). 5 Mandatory Firearm Theft or Loss Reporting Ordinance November 21, 2006 ORDINANCE NO. An ordinance adding a new Section 55.12 to the Los Angeles Municipal Code to require the reporting of a theft or loss of a firearm to the Police Department. THE PEOPLE OF THE CITY OF LOS ANGELES DO ORDAIN AS FOLLOWS: Section 1. A new Section 55.12 is added to Chapter V, Article V of the Los Angeles Municipal Code to read: Section 55.12. Duty to Report Theft or Loss of Firearms; Exemptions. A. Any person who owns or possesses a firearm (as defined in Penal Code Section 12001 (b) or as amended) shall report the theft or loss of the firearm to the Los Angeles Police Department within 48 hours of becoming aware of the theft or Toss, whenever: (1) the person resides in the City of Los Angeles; or (2) the theft or loss of the firearm occurs in the City of Los Angeles. B. Any person who has experienced the theft or loss of a firearm within the five years prior to the effective date of this ordinance without the firearm having been recovered during that period, and who otherwise meets the reporting requirements in Section A above, is required to report the loss or theft of the firearm to the Los Angeles Police Department within 60 days of the effective date of this ordinance. C. Any person who fails to report the theft or loss of a firearm as required in Subsections A or B, when the person knew or should have known of the theft or loss, shall be guilty of a misdemeanor. D. Persons licensed to sell or manufacture firearms pursuant to Penal Code Sections 12071 or 12086 are exempt from this section, if the firearm lost or stolen was business merchandise, was lost or stolen from their firearm -related business, or was in their possession pursuant to Penal Code Section 12082. E. If any provision of this ordinance is found to be unconstitutional or otherwise invalid by any court of competent jurisdiction, that invalidity shall not affect the remaining provisions, which can be implemented without the invalid provisions, and to this end, the provisions of this ordinance are declared to be severable. Section 2. The City Clerk shall certify to the passage of this ordinance and have it published in accordance with Council policy, either in a daily newspaper circulated in the City of Los Angeles or by posting for ten days in three public places in the City of Los Angeles: one copy on the bulletin board located at the Main Street entrance to the Los Angeles City Hall; one copy on the bulletin board located at the Main Street entrance to the Los Angeles City Hall East; and one copy on the bulletin board located at the Temple Street entrance to the Los Angeles County Hall of Records. 6 EXHIBIT B 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Pagel of 71 C. D. Michel - S.B.N. 144258 Clinton B. Monfort - S.B.N. 255609 Sean A. Brady - S.B.N. 262007 Anna M. Barvir - S.B.N. 268728 MICHEL & ASSOCIATES, P.C. 180 E. Ocean Boulevard, Suite 200 Long Beach, CA 90802 Telephone: (562) 216-4444 Facsimile: (562) 216-4445 Email: cmichel@michellawyers.com Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION LEONARD FYOCK, SCOTT ) CASE NO: CV13-05807 RMW HOCHSTETLER, WILLIAM DOUGLAS, ) DAVID PEARSON, BRAD SEIFERS, and ) ROD SWANSON, ) ) Plaintiffs ) ) vs. ) ) THE CITY OF SUNNYVALE, THE ) MAYOR OF SUNNYVALE, ANTHONY ) SPITALERI in his official capacity, THE ) CHIEF OF THE SUNNYVALE ) DEPARTMENT OF PUBLIC SAFETY, ) FRANK GRGURINA, in his official ) capacity, and DOES 1-10, ) ) Defendants. ) ) DECLARATION OF GARY KLECK IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION -1- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page2 of 71 DECLARATION OF GARY KLECK My Qualifications 1. I am a Professor of Criminology and Criminal Justice at Florida Stat University. I received my doctorate in Sociology from the University of Illinois in 1979, where I received the University of Illinois Foundation Fellowship in Sociology. I currently the David J. Bordua Professor of Criminology at Florida State University, where have been on the faculty since 1978. My research has focused on the impact of firearms and gun control on violence, and I have been called "the dominant social scientist in the field o guns and crime" (Vizzard, 2000, p. 183). 2. I have published the most comprehensive reviews of evidence concerning guns and violence in the scholarly literature, which informs and serves as part of the basis of my opinions. I am the author of Point Blank: Guns and Violence in America, which won th 1993 Michael J. Hindelang Award of the American Society of Criminology, awarded to the book of the previous several years which "made the most outstanding contribution to criminology." More recently, I authored Targeting Guns (1997) and, with Don B. Kates, Jr., The Great American Gun Debate (1997) and Armed (2001). 3. I have also published scholarly research in all of the leading professional journals in my field. Specifically, my articles have been published in the America Sociological Review, American Journal of Sociology, Social Forces, Social Problems Criminology, Journal of Criminal Law and Criminology, Law & Society Review, Journal o Research in Crime and Delinquency, Journal of Quantitative Criminology, Law -2- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23113 Page3 of 71 Contemporary Problems, Law and Human Behavior, Law & Policy Quarterly, Violence an Victims, Journal of the American Medical Association, and other scholarly journals. 4. I have testified before Congress and state legislatures on gun control issues and worked as a consultant to the National Research Council, National Academy o Sciences Panel on the Understanding and Prevention of Violence, as a member of the U.S. Sentencing Commission's Drugs -Violence Task Force, and, most recently, as a member o the Institute of Medicine and National Research Council Committee on Priorities for Public Health Research Agenda to Reduce the Threat of Firearm -Related Violence. I am referee for over a dozen professional journals, and serve as a grants consultant to th National Science Foundation. 5. Finally, I teach doctoral students how to do research and evaluate the quality o research evidence, and have taught graduate courses on research design and causal inference, statistical techniques, and survey research methodology. My current curriculu vitae is attached. 6. I am being compensated for my work at the rate of $350 per hour. Opinions and Supporting Evidence 7. Criminals rarely fire large numbers of rounds in a given crime incident, so possession of magazines capable of holding more than ten rounds of ammunition (termed "large -capacity magazines" by the Sunnyvale ordinance and thus referred to as "LCMs" hereafter) merely provides surplus rounds that are not fired and thus rarely can injure -3- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page4 of 71 additional victims. 8. Supporting Evidence: A study of Jersey City, NJ, found that offenders did not even fire a single shot in over two-thirds of crimes in which the offender was armed with a handgun (Reedy and Koper 2003, p. 153). Of all violent crimes in which handguns were fired, only 2.5-3.0% involved more that 10 rounds being fired by the offender (p. 154). Even if limited just to incidents in which semi-automatic pistols were fired, only 3.6-4.2% of the incidents involved over 10 rounds being fired, which is just 1.7-2.0% of all handgun violent crimes (whether the gun was fired or not). The average number of rounds fired was 3.23-3.68 in semi-automatic pistol incidents in which the gun was fired, and 2.30-2.58 in revolver incidents in which the gun was fired. Likewise, a study of gun homicides in Philadelphia found even fewer shots fired per incident than in the Jersey City study — only 2.7 shots per semi-automatic pistol killing in 1990 (McGonigal et al. 1993). 9. The only kind of shootings in which large numbers of rounds are commonly fired are mass shootings, incidents that involve many victims. Mass shootings fortunately are quite rare in absolute terms. For the most recent ten-year period for which we have complete data, 2003-2012 inclusive, there were 31 incidents with more than 6 persons shot (see Appendix) — about three per year in the United States (none occurring in Sunnyvale). Further, mass shootings account for only a very tiny share of all the homicides in the U.S. For the 2003-2012 period, mass shootings resulted in the murder of 233 persons (see Appendix), while rBI data indicate that there were a total of 159,927 murders and non- -4 - DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page5 of 71 negligent manslaughter committed in the U.S. over that same period (U.S. FBI 2013). Thus, mass shootings were responsible for just 117th of 1% of the nation's criminal homicides, whether committed with a gun or not. Even as a share of gun homicides, mass shootings account for well under 1% of the killings. 10. Even in the extremely rare mass shootings in which large numbers of victims were shot, the shooters virtually never needed LCMs to injure or kill as many victims as they did, because they either (a) possessed multiple guns, (b) possessed multiple magazines, or (c) had ample time and opportunity to reload, using smaller -capacity magazines. Therefore, even the hypothetical potential for reducing harm or improving the public's safety by limiting magazine capacity to no more than 10 rounds can be fairly described as being limited to no more than a very small subset of already very rare events. 11. A study of every mass shooting (more than six victims wounded or killed) that occurred in the United States over a ten year period (1984-1993 inclusive) found that offenders possessed multiple guns in thirteen of the fifteen incidents (about 87%), and in one of the two remaining cases (the Colin Ferguson case in New York in 1993) the offender reloaded at least once. Thus, the killers in mass shootings did not need LCMs to quickly fire large numbers of rounds or wound large numbers of victims — they either just switched loaded guns or reloaded their guns without interference from bystanders (Kleck 1997, pp. 124-126, 144). 12. I have updated the analysis of mass shootings beyond this published analysis -5- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page6 of 71 covering 1984-1993. All shooting incidents involving more than six victims shot (fatally or non -fatally, not including the offenders) for the period 1994 through July 2013 inclusive were examined based on news media accounts, and occasionally official reports. The incidents were confined to those involving more than six victims because the proposition that the use of LCMs affects the number of people killed or wounded is most likely to be supported in incidents with many victims. The cut-off of six victims was chosen because it would be virtually impossible to shoot more than six victims using a typical 6 -shot revolver without reloading. 13. I supplemented my list of mass shootings with a list of mass shootings that involved use of LCMs compiled by the Violence Policy Center, an advocacy organization that favors strong gun control laws and specifically supports bans on LCMs. They gathered an arguably comprehensive set of shootings in which magazines of capacity 15 or more were used by the shooters (Violence Policy Center 2013). I used this list to supplement my list because VPC was well -motivated to locate every mass shooting involving the use of an LCM, as they clearly favored the notion that use of LCMs leads to a larger death toll in mass shootings (Violence Policy Center 2011). Thus, I sought to compile as comprehensive a list of such incidents as possible. 14. The updated results (see Appendix) confirmed the conclusions of the 1984- 1993 analysis — LCMs were not needed for mass shooters to kill or injure as many victims as they did. The killer in every single mass shooting was either armed with multiple guns, -6- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page7 of 71 had multiple magazines, or actually reloaded during the incident. There were a total of 57 mass shootings (i.e., incidents with more than 6 victims killed or wounded in a single incident) in the U.S. in 1994-2013 — none of which occurred in Sunnyvale. The shooters used one or more magazines with a capacity of 15 or more rounds in 22 of these incidents; no LCM was used in the other 35 incidents (or about 61%). Of the 22 mass shootings in which LCMs were used, the shooter possessed only one gun in just four, or perhaps five, incidents (see, in Appendix, those dated 11-2-96, 12-5-07, 1-8-11, 9-6-11, and possibly 3- 12-05). In the other 17 or 18 incidents, the shooter possessed multiple guns and therefore could continue firing large numbers of rounds simply by switching guns, even if they had not possessed an LCM. Of the 22 mass shootings in which LCMs were used, the shooter possessed only one magazine in just one incident (dated 2-7-08). In the other 21 LCM incidents, the shooter possessed multiple magazines, and could therefore continue firing large numbers of rounds simply by switching magazines. There was not a single mass shooting in which the offender used an LCM, and was known to have possessed just one gun and just one magazine in his immediate possession. Thus, even if LCMs had not been available, all of the shooters could have fired large numbers of rounds simply by firing multiple guns or using a single gun but changing smaller capacity magazines. 15. One circumstance in which use of an LCM could affect the number of casualties even if the shooter possessed multiple guns or multiple magazines is if there were bystanders willing to tackle the shooter during his attempt to change magazines or firearms. -7- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page8 of 71 The use of an LCM prior to that time could affect the number of victims shot, since the killer could have fired more rounds before needing to reload or switch guns. The only mass shooting in this 20 -year period in which this definitely occurred was the Springfield, Oregon murders on May 21, 1998, in which the shooter (Kip Kinkel) used an LCM, but was tackled while attempting to reload. In this single case, the shooter's possession of an LCM may have affected the number of casualties because he was able to fire more rounds before needing to reload, and there were bystanders willing and able to intervene when he did try to reload. Thus, merely having multiple smaller capacity magazines would not have been, in this incident, a complete substitute for an LCM, since the casualty count was a function of the capacity of the magazine used before bystanders stopped the shooter. 16. There was also one other mass shooting in this period in which bystanders intervened, but key details are in dispute, making it unclear whether bystanders intervened while the shooter was reloading. In the Tucson, Arizona shooting in January 2011 in which Rep. Gabrielle Gifford was wounded, the shooter was tackled by bystanders. Some eyewitnesses stated, however, that the shooter was already trying to leave the scene when he was tackled by bystanders, in which case the bystanders did not interrupt the shooting while the shooter was trying to reload (New York Times January 10, 2011, p. Al). There were no other mass shootings known to me in this 20 -year period in which the shooter was disrupted by bystanders while attempting to reload or switch guns. 17. In sum, use of large -capacity magazines arguably affected the number of -8- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page9 of 71 persons killed or wounded in just one, or possibly two, of the 57 mass shootings occurring in the U.S. in 1994-2013. Synopses of the mass shootings for 1994-2013, and sources relie. upon, can be found in the Appendix. 18. It might be speculated that the total number of rounds fired, and thus the number of victims shot, might be increased by an offender's use of an LCM rather than a smaller capacity magazine because use of the LCM would not require a magazine change so soon or so often. Thus, the absence of LCMs would slow the shooter's rate of fire and extend the time the killer was not shooting, allowing some prospective victims to take additional evasive or defensive actions they otherwise would not have been able to take. While this has some hypothetical plausibility, it is inconsistent with the rates of fire sustained in actual mass shootings. A change of the box -type magazines used in semi- automatic pistols and rifles takes no more than 2-4 seconds, depending on the shooter's skill. Mass killers, however, virtually never fire at a rate of even one round every 2 seconds, and usually fire at even slower rates. 19. Table 1 summarizes data on all 21 of the 57 total mass shootings summarized in the Appendix for which news media accounts provided information on both the number of shots fired and the time span in which shots were fired, thereby allowing reasonable computation of rates of fire. Only 2 shooters of the 21 total took less than 2 seconds per shot fired, and only 5 took under 4 seconds. Even with this handful of incidents with unusually rapid fire, however, the difference between the 1.4 seconds per shot and 1.6 -9- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Pagel° of 71 seconds per shot observed in two incidents with the highest rates of fire, and the 2-4 seconds that it takes to change a box -type magazine is not likely to even be perceptible to prospective victims. That is, they would be unlikely to even be aware of the very slight slowing of the killer's rate of fire necessitated by his changing of magazines. In sum, even if LCM bans forced some mass shooters to use smaller capacity magazines and therefore change magazines earlier and/or more often, it is unlikely that it would perceptibly reduce those offenders' rate of fire and thereby allow victims to take any additional evasive or defensive actions that they otherwise would not have been able to take. Only in the rare cases in which shooters took an unusually long time to reload might there be an opportunity for victims to take additional defensive or evasive actions that they would not have taken, but for the magazine change. 20. On the other hand, limits on magazine capacity are likely to sometimes impair the ability of citizens to engage in lawful self-defense, in those crime incidents necessitating that the victim fire many rounds in order to stop the aggressive actions of offenders. In contrast to mass shooters, victims of crimes generally cannot plan for or anticipate crimes to occur at a specific time and place — these things are beyond their control. Therefore, they ordinarily cannot plan, like an intentional mass shooter, to routinely have many loaded guns and/or numerous magazines with them at the times and places in which particular crimes against them might occur. Victims usually have to make do with a single available gun and its ammunition capacity. Consequently, if their one gun or magazine's capacity was limited -10- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page11 of 71 to 10 or fewer rounds, this means they cannot do what mass -shooters do and simply plan to have multiple guns and magazines ready for their use. Further, persons who are law- abiding would be unlikely to simply violate the law and acquire banned LCMs, as criminals, by definition, freely do. 21. Some defensive gun uses (DGUs) are likely to require large numbers of rounds being fired either because (a) the crime victim faces multiple offender adversaries who will not stop their aggression unless shot or fired upon, and/or because (b) the victim will, under the stressful conditions of a crime victimization, miss with most of his or her shots. 22. Regarding the first point, the 2008 U.S. Department of Justice's National Crime Victimization survey, indicated that 17.4% of violent crimes in the United States involved two or more offenders, and that nearly 800,000 violent crimes occurred in 2008 in which the victim faced multiple offenders. Thus, crime victims would need to fire larger numbers of rounds to protect themselves because they would face multiple criminal adversaries. Regarding the second point, a reasonable estimate of the marksmanship of crime victims using guns for self-defense can be inferred from a review of the many detailed studies that have been done of shootings by police officers in which the officers were trying to shoot criminal adversaries. In many of these shootings, the officers fired large numbers of rounds. Yet, in 63% of the incidents, the officers failed to hit even a single offender with even a single round (Geller and Scott 1993). 23. Police officers have the experience, training, and temperament to handle -11- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12123l13 Page12 of 71 stressful, dangerous situations, so it might be argued that marksmanship among civilians using guns for self-protection is lower than the 37% "hit rate" of police. ("Hit rate" here means the percent of incidents in which the police officer achieved at least one hit, not the percent of shots fired that hit the criminal.) Certainly there is no reliable empirical evidence that civilian marksmanship in such situations is better than that of police officers. Thus, these data indicate that the typical crime victim would have to fire at least three rounds in order to successfully wound each offender they tried to shoot. Crime victims facing four or more offenders would therefore statistically need at least 12 rounds or more to even wound all of them. A ban on magazines with more than 10 rounds would make it impossible to fire this many rounds with a single magazine. 24. Although we do not know the number of DGUs by crime victims that involved use of LCMs or the firing of more than 10 rounds, the number is likely to be larger than the number of crimes in which LCM- use caused a larger number of victims to be injured or killed, for two reasons. First, the number of criminal uses fitting this latter description is, as previously noted, close to zero, so even a tiny number of DGUs requiring an LCM would outnumber criminal uses requiring an LCM. Second, the total number of defensive uses of guns by crime victims, without regard to number of rounds fired or use of LCMs, is far larger (perhaps five times larger) than the total number of crimes committed by offenders using guns. 25. Regarding the second point, the most detailed survey of DGUs, based on the -12- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page13 of 71 largest sample of U.S. adults (n=4,977), was conducted in 1993. The researchers found that 1.32% of U.S. adults (age 18+) had used a gun defensively, either firing the gun at, or threatening, a criminal offender in the preceding 12 months. Multiplying this times the size of the adult population yielded an estimate of 2.55 million DGUs in the preceding year (Kleck and Gertz 1995). This estimate was consistent with estimates derived from many other, smaller scale, surveys (Kleck 2001). (Criticism of this estimate has been uninformative due to an exclusive one-sided focus on errors tending to make the estimate too large, while ignoring well-known factors discouraging the reporting of crimes in general, and possession or use of guns in particular - see Kleck 2001). 26. In that same year, there were no more than 554,000 crimes committed in which offenders fired a gun or used it to threaten a victim (Kleck and Gertz 1995, pp. 169-170), indicating there were about five times as many DGUs as there were crimes in which offenders used guns. At least 18 other national surveys have likewise yielded estimates of the national total of DGUs that exceeded the NCVS estimates of criminal uses of guns (Kleck 2001). 27. Some law-abiding citizens, like many criminals, might acquire multiple smaller capacity magazines as a substitute for banned larger capacity magazines. This development would to some extent defeat the purpose of the magazine capacity limit. Some crime victims, however, will not be able to make effective use of multiple magazines. Under the intense emotional stress of a crime victimization, when the victim's hands are likely to be -13- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page14 of 71 shaking violently, it will often be impossible for victims to eject the expended magazine and insert a new one quickly enough to make effective use of the second magazine. Further, elderly or physically handicapped persons may find it physically impossible for them to quickly change magazines. 28. By definition, criminals obey laws at a lower rate than non -criminals, so violation of legal limits on magazine capacity are likely to occur at a higher rate among criminals than among non -criminals. That is, such a law will reduce possession of LCMs more among law-abiding citizens than among criminals, and thus more among non -criminal victims and prospective victims than among criminal offenders. 29. Points (24)-(28) in combination logically lead to the conclusion that a law limiting the maximum capacity of magazines to no more than 10 rounds will reduce (a) DGUs by victims who needed to fire large numbers of rounds to effectively defend themselves and were able to successfully do so more than it will reduce (b) criminal attacks in which offender use of LCMs caused larger numbers of victims to be killed or injured. 30. Victim DGU is generally effective: it makes it less likely the victim will be injured or lose property. Consequently, a law that obstructs DGU by crime victims impairs their capacity for effective self-protection and increases the likelihood of the victims suffering injury or property loss. 31. Analyses of data generated by the U.S. Census Bureau's National Crime Victimization Survey (NCVS) have consistently indicated that crime victims who use guns -14- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page15 of 71 for self-protection are less likely to be injured or lose property than victims who do not (Kleck 1988; Kleck and DeLone 1993; Southwick 2000; Kleck 2001, Chapter 7; Tark and Kleck 2004). More specifically, DGU is more effective in preventing serious injury than any other victim self-protection strategy, among the 16 strategies covered in the NCVS (Tark and Kleck 2004, pp. 891-894). 32. Opinions 29 through 31 in combination logically lead to the conclusion that a law limiting magazine capacity to no more than ten rounds will do more harm than good, because it will reduce (a) the harm preventing effects of victim DGU more than it will reduce (b) the extremely rare harm -causing effects of offender use of LCMs. 33. This conclusion not only follows logically from opinions 29 through 31, but is also supported by actual experience with the federal ban on LCMs (also defined as holding over 10 rounds) that was in effect nationwide from 1994 to 2004. A U.S. Department of Justice -funded evaluation found that there was "no discernible reduction in the lethality or injuriousness of gun violence during the post -ban years" (Koper 2013, p. 165; see also Koper 2004, p. 96). The author of the evaluation argued that the federal ban would eventually have benefits if it were allowed to persist long enough. This claim, however, was basically speculative, not based on any actual observed changes in violence. 34. In sum, the best available evidence indicates that Sunnyvale's ban on LCMs is more likely, on net, to harm the safety of its citizens than to improve it. -15- DECLARATION OF GARY KLECK 1 3 4 5 6 7 8 9 10 11 12 13 14 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page16 of 71 1 declare under penalty of perjury that the foregoing is true and correct. Executed within the United States on December 23, 2013. References %: Gal -y1(1 ck Geller, William A. and Michael S. Scott. 1993. Deadly Force: What We Know.l Washington, D.C.: Police Executive Research Forum. Kleck, Gary. 1997. Targeting Guns: Firearms and their Control. NY: Aldine de Gruyter. Kleck, Gary. 2001a. "The frequency of defensive gun use: evidence and disinformation.' Chapter 6 in Armed, by Gary Kleck and Don B. Kates. NY: Prometheus Books. 15 Kleck, Gary. 2001 b. "The nature and effectiveness of owning, carrying, and using guns fors 16 self-protection." Chapter 7 in Armed, by Gary Kleck and Don B. Kates. NY: Prometheus 17 Books. 18 Kleck, Gary, and Miriam DeLone. 1993. "Victim resistance and offender weapon effects in 19 robbery." Journal of Quantitative Criminology 9(1):55-81. 20 21 23 24 25 26 27 28 Kleck, Gary, and Marc Gertz. 1995. "Armed resistance to crime: the .prevalence and nature of self- defense with a gun." Journal of Criminal Law and Criminology 86:150-187. Koper, Christopher. 2004. An Updated Assessment of the Federal Assault Weapons Ban Report to the National Institute of Justice. Philadelphia: Jerry Lee Center of Criminology Available online at Iltt ps:,•r v, \\ w. nc j rs. ov: 1 ffi le:�. l . n j , rants. 2 1-1-i 31.pd t. Koper, Christopher. 2013. "America's experience with the federal assault weapons ban, 1994- 2004." Pp. I57-171 in Reducing Gun Violence in America. edited by Daniel W. Webster and Jon S. Vernick. Baltimore: Johns Hopkins University Press McGonigal, M.D., Cole, J., Schwab, C.W., Kauder, D.R., Rotondo, M.F., and Angood, P.B. -16- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page17 of 71 1993. "Urban firearm deaths: a five-year perspective." The Journal of Trauma 35:532-537. Reedy, D. C., and C. S. Koper. 2003. "Impact of handgun types on gun assault outcomes." Injury Prevention 9:151-155. Southwick, Lawrence. 2000. "Self-defense with guns: The consequences." Journal of Criminal Justice 28:351-370. Tark, Jongyeon, and Gary Kleck. 2004. "Resisting crime: the effects of victim action on the outcomes of crimes." Criminology 42:851-908. U.S. Bureau of Justice Statistics, 2013. Data from the 2008 National Crime Victimization Survey, on the BJS website at http://bjs.gov/content/pub/pdf/cvus08.pdf, Table 37. U.S. Federal Bureau of Investigation. 2013. Crime in the United States, 2012 (Uniform Crime Reports). Available online at http://www.fbi.gov/about-usicjis/ucr/crime-in-the- u. s/2012/crime-i n -the -u . s.- 2012/tables/ 1 .- 2012/tables/1 tabledatadecoveiviewpdf/table 1 crime in the united states by volume an d rate per 100000_inhabitants 1993-2012.xls. Violence Policy Center 2011. "High-capacity ammunition magazines: the common thread that runs through mass shootings." Press release dated January 11, 2011, available online at http://www.vpc.org/press/1101 az2.htrn. Violence Policy Center. 2013. Mass Shootings in the United States Involving High - Capacity Ammunition Magazines. Washington, D.C.: Violence Policy Center. Available online at http://www.vpc.org/fact sht/VPCshootinglist.pdf. Vizzard, Willaim J. Shots in the Dark: The Policy, Politics, and Symbolism of Gun Control. NY: Rowman & Littlefield. Table 1. Rates of Fire in Mass Shootings (over 6 casualties), 1994-2013 Date of Time of Firing Incident Shots Fired' (minutes) Shots per minute Seconds per Shot 6-20-94 >50 c. 5 >10 <6.0 2-28-97 1,101 44 25 2.4 4-20-99 188 49 3.8 15.6 9-15-99 >100 10 >10.0 >6.0 11-2-99 10 <30 <0.3 >180.0 5-24-00 c.5 <90 >0.06 <1080.0 -17- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page18 of 71 9-22-00 9+ <10 >0.9 <66.7 12-26-00 37 5-8 (6.5) 5.7 10.5 2-5-01 25-30 (27.5) 8-15 (11.5) 2.4 25.1 3-5-01 c. 24 6 c. 4.0 c. 15.0 3-12-05 22 <1 >22/0 <2.7 3-21-05 45 9 5.0 12.0 3-25-06 8+ c. 5 >1.6 <37.5 10-2-06 17-18 (17.5) c. 2 c. 8.75 c. 6.9 4-16-07 c.174 156 c.1.11 c.53.8 10-7-07 30 c. 1 c. 30.0 c. 2.0 12-5-07 >30 c. 6 > 5.0 <12.0 2-14-08 56 5 11.1 5.4 8-3-10 19 3 6.3 9.5 9-6-11 60+ 1.42 42.3+ 1.4 12-14-12 154+ 4 38.5+ 1.6 Note: a. Where a range was provided in news media accounts, the midpoint of the range (shown in parentheses) was used in rate -of -fire computations. Source: Appendix synopses of mass shootings. Appendix - Synopses of Mass Shootings, 1994 -July 2013, in Chronological Order (Mass shooting = more than six victims killed or wounded in a single incident) Mass Shootings in 1994 • The Washington Post: "5 Arrested in Shooting at Market; NE Men Charged with First Degree Murder," April 11, 1994 • Date: March 31, 1994 • Shooters: Unknown (Up to 4) • Number of Guns in Shooter's Immediate Possession: Unknown • Types of Guns Used: Tec -9 semi-automatic (found but no confirmation it was used during the shooting) • Number of Magazines: Unknown • Maximum Capacity of Largest Magazine: Unknown • Number of Shots Fired: 30+ • Did Offender Reload: Unknown • Time from Start to End: Unknown • How Gun was Acquired: Unknown -18- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Pag e19 of 71 • Number Killed: 1 • Number Wounded: 9 Notes: This was a gang related incident. Some reports indicate that other guns were found and there was more than one shooter but nothing was confirmed. The shooters had 5 specific targets, 4 of which they hit. • The New York Times: "Gunman Kills 2 and Hurts 19 on Air Force Base," June 21, 1994 • New York Times "An Airman's Revenge: 5 Minutes of Terror," June 22, 1994; Seattle Times "Man Bent on Revenge Kills 4, Hurts 23," June 21, 1994. • Date: June 20, 1994 Shooters: 1 • Number of Guns in Shooter's Immediate Possession: 2 • Type of Gun Used: MAK-90 rifle, another `unspecified 'single shot' weapon (unused) • Number of Magazines: Unknown • Maximum Capacity of Largest Magazine(s): 70 • Number of Shots Fired: Over 50 • Did Offender Reload: Unknown • Time From Start to End: Unknown — 5 minutes? • How Gun Was Acquired: Legally purchased from licensed dealer • Number Killed: 4 (5 including gunman) • Number Wounded: 23 • The Washington Post: "Gunman Kills 2, Wounds 5 in Attack on Abortion Clinics," December 31, 1994 • Shooters: 1 • Number of Guns in Shooter's Immediate Possession: 1-2 (A second was found at the scene but unused) • Type of Gun Used: .22 caliber rifle, miscellaneous handgun • Number of Magazines: Unknown • Maximum Capacity of Largest Magazine: Unknown • Number of Shots Fired: Unknown • Time from Start to End: Unknown • How Guns were Acquired: Unknown • Number Killed: 2 • Number Wounded: 5 • Notes: This was targeted at two abortion clinics with no specific individual target. Mass Shootings in 1995 - none Mass Shootings in 1996 — none Mass Shootings in 1997 - 19 - DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23113 Page20 of 71 • CNN: "Gunman Shoots 7, Kills Self at Empire State Building," February 24, 1997. • Date: February 23, 1997 • Shooters: 1 • Number of Guns in Shooter's Immediate Possession: 1 • Type of Gun Used: .380 caliber Beretta • Number of Magazines: Unknown • Maximum Capacity of Largest Magazine: Unknown • Number of Shots Fired: Unknown • Did Offender Reload: Unknown • Time from Start to End: Unknown • How Gun was Acquired: Purchased in Florida (Legality unknown) • Number Killed: 1 (2 including gunman) • Number Wounded: 6 Police Magazine: "5 Gunfights That Changed Law Enforcement," May 4, 2011. Date: February 28, 1997 Shooters: 2 Number of Guns in Shooter's Immediate Possession: At least 4 Types of Guns Used: Fully automatic AIM AK -47, Norinco Type 56 S-1, semi-automatic HK -91, and a Bushmaster XM15 E2S (modified) Number of Magazines: Unknown Maximum Capacity of Largest Magazine: Unknown (at least 3,300 rounds in box and drum magazines) Number of Shots Fired: 1,101 Did Offenders Reload: Yes Time from Start to End: 44 minutes How Guns were Acquired: Unknown Number Killed: 0 (2 including gunmen) Number Wounded: 18 Notes: The shooters had an arsenal that the police could not compete with. Many of their weapons were fully automatic and the magazines were likely high capacity. Accounts differ on the number of shots fired. • The Associated Press: "Man to be Executed Friday for Plant Shootings," October 30, 2005 • Date: September 15, 1997 • Shooters: 1 • Number of Guns in Shooter's Immediate Possession: 1 • Type of Gun Used: semi-automatic pistol -20- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23113 Page21 of 71 • Number of Magazines: 4 empty • Maximum Capacity of Largest Magazine: 8 rounds • Number of Shots Fired: Unknown • Did Offender Reload: Yes • Time from Start to End: 2.5 hours • How Gun was Acquired: Unknown • Number Killed: 4 • Number Wounded: 3 • Notes: The shooter was fired and sought revenge. By some accounts he had four other magazines for a total of 8 magazines with 8 rounds. • Reuters News: "Six Charged in Mississippi High School Shooting," October 7, 1997 • Date: October 1, 1997 • Shooters: 1 • Number of Guns in Shooter's Immediate Possession: 1 • Type of Gun Used: Rifle • Number of Magazines: Unknown • Maximum Capacity of Largest Magazine: Unknown • Number of Shots Fired: Unknown • Did Offender Reload: Unknown • Time from Start to End: Unknown • How Gun was Acquired: Unknown (possibly from parents) • Number Killed: 2 (3 if mother included in separate killing, no gun used) • Number Wounded: 7 • Notes: Six were charged, but with conspiracy. There was only one shooter and his target was an ex-girlfriend. • The New York Times: "Gunfire Inside a School Kills 3 and Wounds 5," December 2, 1997 • Date: December 1, 1997 • Shooters: 1 • Number of Guns in Shooter's Immediate Possession: 5 • Type of Guns Used: .22 caliber handgun (shooter also had two rifles and two shotguns) • Number of Magazines: More than 1 • Maximum Capacity of Largest Magazine: Unknown • Number of Shots Fired: Unknown • Did Offender Reload: No • Time from Start to End: Unknown • How Guns were Acquired: Unknown • Number Killed: 3 • Number Wounded: 5 -21- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page22 of 71 • Notes: According to a CNN article entitled "Kentucky School Shooter 'Guilty but Mentally Ill,"' October 5, 1998, the shooter stole the guns from different homes. According to The St. Petersburg Times: "Programmed to Kill," December 1, 1997, the shooter shot 8 to 10 rounds. According to The New York Times: "Forgiveness, After 3 Die in Shootings in Kentucky," printed on December 3, 1997, the shooter shot up to 12 rounds. • The New York Times "Dismissed Worker Kills 4 and Then Is Slain," December 20, 1997; Los Angeles Times "Aftermath of Killer's Fury," December 20, 1997 • Date: December 18, 1997 • Shooters: 1 • Number of Guns in Shooter's Immediate Possession: 3 • Type of Gun Used: AK -47, shotgun, and handgun • Number of Magazines: Unknown • Maximum Capacity of Largest Magazine(s): Unknown • Number of Shots Fired: 70 • Did Offender Reload: Unknown • Time from Start to End: Unknown • How Gun was Acquired: Unknown • Number Killed: 4 (5 including gunman) • Number Wounded: 3 • Notes: Employer was dismissed from Caltran's and a subsequent job. He then returned to the work site and randomly shot employees. He battled with police as well, for at least a minute, before his was killed. Mass Shootings in 1998 • The New York Times: "From Wild Talk and Friendship to Five Deaths in a schoolyard March 29, 1998 • Date: March 24, 1998 • Shooters: 2 • Number of Guns in Shooter's Immediate Possession: At least 4 (shooters had access to 10 guns and a crossbow) • Type of Guns Used: Remington .30-60 hunting rifle, Ruger .44 Magnum rifle • Number of Magazines: 3 .30 caliber magazines (19 .44 caliber shells, 41 .357 shells, 49 .380 shells, 16 .30 special shells, 26 .357 magnum shells, 6 .30 caliber shells) • Maximum Capacity of Largest Magazine(s): 30 round • Number of Shots Fired: At least 26 • Did Offenders Reload: Unknown • Time from Start to End: Unknown • How Guns were Acquired: Stolen From Parents -22- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23113 Page23 of 71 • Number Killed: 5 • Number Wounded: 11 (15 hit) • Notes: The History Channel has an article entitled "A School Shooting in Jonesboro, Arkansas, Kills Five. This article states that the two youths had "thirteen fully loaded guns including three semi automatic rifles, and 200 rounds of ammunition." The weapons were taken from the Golden family's home. • The New York Times: "Sorrowful Town Honors Teen -Ager Killed in School Shooting," May 26, 1998. • Date: May 21, 1998 Location: Springfield, Oregon • Shooters: 1 (Kip Kinkel) • Number of Guns in Shooter's Immediate Possession: 3 • Type of Guns Used: .22 caliber semi-automatic rifle, 9 mm Glock semi-automatic pistol,.22 caliber Ruger semi-automatic pistol • Number of Magazines: At least 3 • Maximum Capacity of Largest Magazine: 50 • Number of Shots Fired: 51 • Did Offender Reload: Attempted to do so, tackled by bystanders • Time from Start to End: Unknown • How Guns were Acquired: From Parents • Number Killed: 2 (4 including the parents who were killed the night before) • Number Wounded: 22 • Notes: According to PBS' Frontline (http://www.pbs.org/wgbh/pages/frontline/showslkinkel/kip/cron.html) the shooter "carried 3 guns: a .22 caliber semi-automatic Ruger rifle, his father's 9mm Glock pistol and a .22 caliber Ruger semi-automatic pistol." The article states that he used a 50 round magazine and injured 25 students. Mass Shootings in 1999 • The New York Times: "3 are Killed and 5 Hurt in Shootout in Utah City," April 16, 1999 • Date: April 15, 1999 • Shooters: 1 • Number of Guns in Shooter's Immediate Possession: 1 • Type of Gun Used: .22 caliber semi-automatic handgun • Number of Magazines: Unknown • Maximum Capacity of Largest Magazine: Unknown • Number of Shots Fired: Unknown • Did Offender Reload: Unknown • Time from Start to End: 1-2 hours -23- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page24 of 71 • How Gun Was Acquired: Unknown • Number Killed: 2 • Number Wounded: 5 • Notes: Numerous other sources list the wounded as 4 and not 5. According to The South Florida Sun -Sentinel: "Gun Sale Issues Raised After Salt Lake City Shooting," the shooter likely purchased the gun, a .22 caliber Ruger and had previously had a gun confiscated due to a misdemeanor gun offense. • CNN Special: Using a copy of the Jefferson County Website with Details about the Columbine Massacre. (http://www.cnn.com/SPECIALS/2000/columbine.cd/Pages/EQUIPMENT TEXT.htm) • Date: April 20, 1999 • Shooters: 2 (Dylan Klebold and Eric Harris) • Number of Guns in Shooter's Immediate Possession: 4 • Types of Guns Used: Intratec TEC -DC -9 9 -mm semi-automatic handgun, Hi -Point 995 9mm carbine rifle, Savage -Springfield 67H 12 gauge pump action shot gun, Stevens 311D double barreled shot gun. • Number of Magazines: Unknown • Maximum Capacity of Largest Magazine: Unknown • Number of Shots Fired: 188 • Did Offenders Reload: Yes • Time from Start to End: 49 minutes • How Guns were Acquired: From Friends • Number Killed: 13 (15 including shooters) • Number Wounded: 21 • Notes: This is one of the most reported and well known mass shootings. Details are solidified through official reports by the Jefferson County Sheriffs' Department and the FBI. Some of the above information was taken from additional published sources. • CNN: "'Mental Breakdown' Defense Hinted in Georgia School Shooting," May 24, 1999 • Date: May 20, 1999 • Shooters: 1 • Number of Guns in Shooter's Immediate Possession: 2 • Types of Guns Used: .22 caliber rifle, .357 magnum handgun • Number of Magazines: Unknown • Maximum Capacity of Largest Magazine: Unknown • Number of Shots Fired: 14 • Did Offender Reload: No • Time from Start to End: Unknown • How Guns were Acquired: Stolen from parents • Number Killed: 0 • Number Wounded: 6 -24- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page25 of 71 • Notes: None • The New York Times: "Shootings in Atlanta: The Overview; Gunman in Atlanta Slays 9, then Himself," July 30, 1999 • Date: July 29, 1999 • Shooters: 1 • Number of Guns in Shooter's Immediate Possession: 2 • Types of Guns Used: 9mm semi-automatic pistol, .45 caliber handgun • Number of Magazines: Unknown • Maximum Capacity of Largest Magazine: Unknown • Number of Shots Fired: Unknown • Did Offender Reload: Unknown • Time from Start to End: 5.5 hours • How Guns were Acquired: Unknown • Number Killed: 9 (13 including family, but they were not shot, 14 including gunman who shot himself) • Number Wounded: Unknown • Notes: CNN: "Shooter Lost $105,000 in Month, but Motive Still a Mystery," July 30, 1999 states that 13 were wounded. This same article claims there were a total of four guns in the car with over 200 rounds of ammunition. There was a Glock 9mm handgun, a Colt .45 handgun, a H&R .22 caliber revolver, and a Raven .24 caliber pistol. The H&R was legally purchased by the shooter in a pawn shop in 1976 and someone else purchased the Raven from another pawn shop in 1992. The Glock and Colt were used during the shootings but there is no information regarding how they were obtained. • Time Magazine: "Terror In The Sanctuary," September 20, 1999 • Date: September 15, 1999 • Shooters: 1 • Number of Guns in Shooter's Immediate Possession: 2 • Types of Guns Used: 9 -mm semi-automatic handgun and a .380 caliber handgun • Number of Magazines: 3 • Maximum Capacity of Largest Magazine: 15 • Number of Shots Fired: Unknown • Did Offender Reload: Yes • Time from Start to End: Unknown • How Guns were Acquired: Purchased (Unknown source) • Number Killed: 7 (8 including the gunman) • Number Wounded: 7 • Notes: According to a Houston Press article entitled "Faith's Fusillade" from November 4, 1999, the gunman had purchased the guns seven years before the shooting in Grand Prairie. He took 10 magazines with him. They state that the 9mm gun was a Ruger and that the event lasted 10 minutes. According to the official Wedgwood Baptist Church website, the gunman fired over 100 rounds. -25- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page26 of 71 • The New York Times: "Man Opens Fire in Xerox Office, Killing 7," November 3, 1999. • Date: November 2, 1999 • Shooters: 1 • Number of Guns in Shooter's Immediate Possession: 1 • Types of Gun Used: 9mm pistol • Number of Magazines: 3 • Maximum Capacity of Largest Magazine: 15 • Number of Shots Fired: Unknown • Did Offender Reload: Unknown • Time from Start to End: Less than 30 minutes • How Guns were Acquired: Legally Purchased and Registered 17 of the 18 • Number Killed: 7 • Number Wounded: 0 • Notes: The shooter was a registered owner of 17 guns, but 18 were recovered from his home including 11 handguns, 5 rifles and 2 shotguns. According to The Honolulu Advertiser's article "No Closure Yet for Families Suing Uyesugi" published on November 1, 2004, the gun was a Glock. According to TruTV's Crime Library in an article entitled "Examining Workplace Homicide: The Xerox Murders," the shooter fired 10 rounds. • The New York Times: "Gunman Kills 5 in Rampage Starting at Florida Hotel," December 31, 1999 • Date: December 30, 1999 • Shooters: 1 • Number of Guns in Shooter's Immediate Possession: 2 • Types of Guns Used: 9mm semi-automatic handgun, .38 caliber handgun • Number of Magazines: Unknown but more than one • Maximum Capacity of Largest Magazine: Unknown • Number of Shots Fired: Unknown • Did Offender Reload: Yes • Time from Start to End: Unknown • How Guns Were Acquired: Legally purchased at a flea market and a local store • Number Killed: 5 • Number Wounded: 3 Notes: None Mass Shootings in 2000 ❑ The Baltimore Sun "Police Arrest Teen Suspect in National Zoo Shooting," April 26, 2000 ❑ Date: April 24, 2000 O Shooters: 1 O Number of Guns in Shooter's Immediate Possession: 1 -26- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page27 of 71 ❑ Types of Guns Used: 9mm (Gun was never recovered, but 9mm shells were found on the scene along with a holster) ❑ Number of Magazines: Unknown ❑ Maximum Capacity of Largest Magazine: Unknown O Number of Shots Fired: According to a witness 6-8 (See video here: http://www.c- spanvideo.org/programl156805-1) O Did Offender Reload: Unknown but unlikely ❑ Time from Start to End: Unknown ❑ How Gun was Acquired: Unknown (Since the shooter was a minor it was likely illegally obtained) ❑ Number Killed: 0 O Number Wounded: 7 ❑ Notes: Two groups of teens had a fight early in the day and this event was believed to be related and some form of retaliation. O CNN "Two Suspects in Wendy's Shootings Arrested," May 26, 2000 ❑ Date: May 24, 2000 ❑ Shooters: 2 ❑ Number of Guns in Shooter's Immediate Possession: 1 O Types of Guns Used: Bryco-Jennings .380 caliber semi-automatic pistol O Number of Magazines: Unknown O Maximum Capacity of Largest Magazine: Unknown ❑ Number of Shots Fired: Unknown (Each victim was shot once in the head so likely 5) ❑ Did Offender Reload: Unknown but unlikely O Time from Start to End: Less than 1.5 hours O How Gun was Acquired: Unknown ❑ Number Killed: 5 ❑ Number Wounded: 2 ❑ Notes: This was connected to a robbery, but the shooters knew ahead of time that they would execute each of the employees. O The Washington Post "Gay Shooting Said Linked to Jokes," September 27, 2000 ❑ Date: September 22, 2000 ❑ Shooters: 1 ❑ Number of Guns in Shooter's Immediate Possession: 1 ❑ Types of Guns Used: 9mm Ruger semi-automatic handgun O Number of Magazines: 1 ❑ Maximum Capacity of Largest Magazine: Unknown but more than 9 ❑ Number of Shots Fired: Unknown (Victims suffered wounds from at least 9 shots see Roanoke Times "Grand Jury Indicts Suspect in Bar Shootings if Convicted on All Charges, He Could Face 180 -Year Sentence," 2000 -27- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filedl2/23/13 Page28 of 71 ❑ Did Offender Reload: No ❑ Time from Start to End: Less than 10 minutes ❑ How Gun was Acquired: Unknown O Number Killed: 1 ❑ Number Wounded: 6 • Notes: A Vietnam vet who suffered from post traumatic stress disorder who was unable to get medication hated that his last name was "Gay" and that people teased him for that. O The New York Times "A Deadly Turn to a Normal Work Day," December 28, 2000, Boston Herald "Wakefield Massacre; Accused Shooter Amassed Arsenal at His Home, Work", December 28, 2000 O Date: December 26, 2000 O Shooters: 1 O Number of Guns in Shooter's Immediate Possession: 3 O Types of Guns Used: AK -47 style rifle, a Winchester 12 gauge pump -action shotgun and a .32 caliber semi-automatic pistol ❑ Number of Magazines: 4+ ❑ Maximum Capacity of Largest Magazine: 30 ❑ Number of Shots Fired: 37 O Did Offender Reload: Yes O Time from Start to End: 5-8 minutes O How Guns were Acquired: Unknown ❑ Number Killed: 7 ❑ Number Wounded: 0 • Notes: The shooter claimed that he heard voices and that his victims were Nazis from the past. The jury didn't believe he was mentally ill and the prosecution showed he was intelligent and executed this plan targeting specific people and it was due to owing upwards of $5,000 in back taxes that were to be garnished from his wages. Mass Shootings in 2001 O ABC News "Ex -Employee Kills 4, Self in Rampage," February 6, 2001, Chicago Tribune "Navistar Gunman Got Past Cracks in Gun Law," February 7, 2001, Chicago Tribune "Weapon Used at Navistar Traced to Shorewood Man," March 1, 2001 O Date: February 5, 2001 ❑ Shooters: 1 O Number of Guns in Shooter's Immediate Possession: 4 O Types of Guns Used: SKS semi-automatic rifle, Remington shotgun, .30 caliber -28- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12123113 Page29 of 71 hunting rifle, .38 caliber revolver ❑ Number of Magazines: Unknown ❑ Maximum Capacity of Largest Magazine: Unknown ❑ Number of Shots Fired: 25-30 O Did Offender Reload: Unknown O Time from Start to End: 8-15 minutes ❑ How Guns were Acquired: The Remington shotgun and .30 caliber hunting rifle were purchased legally in 1993 from a dealer. The SKS rifle was transferred illegally. ❑ Number Killed: 4 (5 including shooter) O Number Wounded: 4 Notes: The shooter claimed that he heard voices and that his victims were Nazis from the past. The jury didn't believe he was mentally ill and the prosecution showed he was intelligent and executed this plan targeting specific people and it was due to owing upwards of $5,000 in back taxes that were to be garnished from his wages. O ABC News "Exclusive: Santana School Shooter," October 10, 2001 O Date: March 5, 2001 O Shooters: 1 ❑ Number of Guns in Shooter's Immediate Possession: 1 O Types of Guns Used: .22 caliber revolver O Number of Magazines: N/A ❑ Maximum Capacity of Largest Magazine: N/A ❑ Number of Shots Fired: —24 ❑ Did Offender Reload: Yes ❑ Time from Start to End: 6 minutes ❑ How Guns were Acquired: Stolen from shooter's father O Number Killed: 2 O Number Wounded: 13 Notes: The shooter was a 15 year old freshman who claimed he was bullied and wanted to prove that he was strong enough to fend for himself. He reloaded the revolver three times and had a total of 40 bullets with him at the time. Mass Shootings in 2002 — none Mass Shootings in 2003 O The New York Times "Man Kills 5 Co -Workers at Plant and Himself," July 9, 2003, The Clarion -Ledger "Meridian Rampage: Investigation Winds Down," November 17, 2003 O Date: July 8, 2003 -29- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page30 of 71 ❑ Shooters: 1 ❑ Number of Guns in Shooter's Immediate Possession: 2 (Shooter had a total of 5, 3 in his car) ❑ Types of Guns Used: Winchester 12 gauge pump -action shotgun (did not fire but had a Mini -14.223 semi-automatic; in the car he had a .22 Magnum derringer, a .45 caliber Ruger, and a .22 rifle) ❑ Number of Magazines: Unknown (He wore a bandolier to store ammunition) ❑ Maximum Capacity of Largest Magazine: Unknown ❑ Number of Shots Fired: Unknown ❑ Did Offender Reload: Yes ❑ Time from Start to End: —10 minutes O How Guns were Acquired: Unknown O Number Killed: 6 (7 including the shooter) O Number Wounded: 8 Notes: This was a racially motivated work place shooting. The shooter was heavily armed but used only the pump -action shotgun during the shooting. Mass Shootings in 2004 O The Associated Press "Suspect Says Hunters Shot at Him First," November 23, 2004, Duluth News Tribune "Timeline of Sunday's Shootings," November 23, 2004, The Associated Press "Murder Trial of Hmong Immigrant Accused of Killing Six Hunters Opens in U.S.," September 10, 2005 ❑ Date: November 21, 2004 ❑ Shooters: 1 ❑ Number of Guns in Shooter's Immediate Possession: 1 ❑ Types of Guns Used: SKS 7.62mm semi-automatic rifle ❑ Number of Magazines: 1-2 ❑ Maximum Capacity of Largest Magazine: 10 rounds ❑ Number of Shots Fired: 20+ 0 Did Offender Reload: Yes ❑ Time from Start to End: Unknown (Captured four hours after the shooting) O How Guns were Acquired: Unknown O Number Killed: 6 ❑ Number Wounded: 2 Notes: Some accounts claim that the shooter had a 20 round magazine. However, the AP report states that prosecutors displayed a 10 round magazine in court and claimed that he shot at least 20 rounds. -30- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page31 of 71 Mass Shootings in 2005 ❑ The New York Times "Police Search for Answers in Wisconsin Shooting," March 13, 2005, The New York Times "After Shootings in Wisconsin, a Community Asks 'Why,"' March 14, 2005 O Date: March 12, 2005 ❑ Shooters: 1 ❑ Number of Guns in Shooter's Immediate Possession: 1 ❑ Types of Guns Used: 9mm semi-automatic handgun ❑ Number of Magazines: 2 ❑ Maximum Capacity of Largest Magazine: Unknown (Based on shots fired, they must have been 11+) ❑ Number of Shots Fired: 22 ❑ Did Offender Reload: Yes ❑ Time from Start to End: Less than a minute ❑ How Guns were Acquired: Unknown ❑ Number Killed: 7 (8 including shooter) ❑ Number Wounded: 4 Notes: None. ❑ CBS News "Red Lake Massacre Took 3 Minutes," February 11, 2009 ❑ Date: March 12, 2005, CNN Anderson Cooper 360 Degrees, Aired March 22,2005 O Shooters: 1 ❑ Number of Guns in Shooter's Immediate Possession: 3 ❑ Types of Guns Used: Ruger .22 caliber semi-automatic handgun, Glock .40 caliber semi-automatic handgun, Remington 12 gauge shotgun (The brands were listed on Wikipedia but the articles only list the caliber and types) O Number of Magazines: Unknown ❑ Maximum Capacity of Largest Magazine: Unknown O Number of Shots Fired: 45 (13 more were used to kill his grandfather and his friend) O Did Offender Reload: Unknown ❑ Time from Start to End: 9 minutes (This is for the school shooting. He killed his grandfather and his grandfather's friend that morning as well) ❑ How Guns were Acquired: Stolen from grandfather ❑ Number Killed: 7 (9 including grandfather and grandfather's friend, 10 including shooter) ❑ Number Wounded: 5 Notes: Another school shooting by a troubled teen. He killed his grandfather by shooting him twice in the head and ten times in the chest with the .22. He then shot and killed his grandfather's friend before going to the school. -31- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filedl2/23/13 Page32 of 71 Mass Shootings in 2006 O Panel Report on the Shooting (See http://seattletimes.nwsource.com/AB Pub/2006/07/17/2003133196.pdf) O Date: March 25, 2006 ❑ Shooters: 1 O Number of Guns in Shooter's Immediate Possession: 2 (Others found in his car) O Types of Guns Used: Winchester Defender pump -action 12 gauge shotgun, Ruger P- 94 .40 caliber handgun (He had an AR -15 in his car) O Number of Magazines: 2 bandoliers containing 15 rounds of 00 buckshot shotgun and 3 total magazines for the Ruger (Shotgun was reloaded twice with 8 rounds and the handgun was reloaded once) ❑ Maximum Capacity of Largest Magazine: Unknown ❑ Number of Shots Fired: 9+ from the shotgun (one to kill himself) 8+ from the Ruger O Did Offender Reload: Yes O Time from Start to End: —5 minutes O How Guns were Acquired: Purchased legally O Number Killed: 7 O Number Wounded: 2 Notes: Perhaps one of the most detailed shootings given the full report. The magazines seemed to hold less than 15 rounds given the number fired and when they were reloaded. Most of the damage was done with the shotgun, but the shooter did use both guns on victims who didn't die. It is unknown why he didn't use the AR -15 but carried ammunition for it. O The Washington Post "Pa. Killer had Prepared for 'Long Siege,"' October 4, 2006, Fox News "Gunman Reportedly Bent on 'Revenge' Kills Girls, Self at Amish School," October 3, 2006, Vancouver Sun "Man Takes Own Life at End of Killing Spree," October 3, 2006 O Date: October 2, 2006 ❑ Shooters: 1 O Number of Guns in Shooter's Immediate Possession: 3 O Types of Guns Used: Springfield 9 mm semi-automatic pistol, a Ruger .30-06 bolt - action rifle and a Browning 12 gauge pump action shotgun) ❑ Number of Magazines: Unknown (Shooter had a bag with over 600 rounds) O Maximum Capacity of Largest Magazine: Unknown ❑ Number of Shots Fired: 17-18 rounds (One coroner report lists at least 24 shots in one child, which differs from the police reports) O Did Offender Reload: Unknown -32- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page33 of 71 ❑ Time from Start to End: c. 2 minutes ❑ How Guns were Acquired: 9mm purchased legally, others unknown O Number Killed: 5 (shooter killed himself, bringing the total to 6) O Number Wounded: 5 Notes: The shooter broke into the school, forced the boys and older women to leave and then made the remaining ten girls line up facing the chalkboard. He planned on molesting the girls, but attempted to execute them all instead. Mass Shootings in 2007 O The New York Times "After a Rampage, Trying to Grasp What Led a Son to Kill," February 20, 2007, The Associated Press "Agents Say Pistol had Changed Hands Many Times," March 29, 2007, Desert Morning News "Gun Dealer to Plead in Trolley Square Gun Case," November 20, 2007, The Associated Press "Man Pleads Guilty to Selling Handgun to Mall Shooter," October 25, 2007 O Date: February 12, 2007 ❑ Shooters: 1 O Number of Guns in Shooter's Immediate Possession: 2 O Types of Guns Used: Maverick Arms Model 88 12 gauge shotgun, Smith and Wesson .38 caliber pistol O Number of Magazines: N/A (Shooter had "backpack full of ammunition" and "bandolier of shotgun shells") O Maximum Capacity of Largest Magazine: N/A O Number of Shots Fired: Unknown ❑ Did Offender Reload: Unknown but unlikely ❑ Time from Start to End: 6 minutes ❑ How Guns were Acquired: Shotgun purchased legally, handgun stolen from a man's father to trade for drugs and eventually sold to shooter(Sources differ on the shotgun's legality. The shotgun had a pistol grip and the shooter was 18 thus making it illegal. If that is the case, both guns were illegally possessed by the shooter) ❑ Number Killed: 5 (6 including shooter) ❑ Number Wounded: 4 Notes: The shooter went to Trolley Square and opened fire with no known motive. An off-duty police officer fired at him and stopped him from killing others until the SWAT team showed up and killed the shooter. ❑ Virginia Tech Review Panel (See http://www.governor. virgini a. gov/TempContent/techPanelReport.cfm) O Date: April 16, 2007 O Shooters: 1 O Number of Guns in Shooter's Immediate Possession: 2 -33- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page34 of 71 O Types of Guns Used: Glock 19 9mm semi-automatic pistol, Walther P22.22 caliber pistol ❑ Number of Magazines: 19 O Maximum Capacity of Largest Magazine: 15 rounds ❑ Number of Shots Fired: —174 O Did Offender Reload: Yes ❑ Time from Start to End: 2 hours 36 minutes O How Guns were Acquired: The Walther P22 was purchased online and picked up at a pawn shop, the Glock 19 was purchased at a gun shop. O Number Killed: 32 (33 including shooter) O Number Wounded: 23 (17 by gunfire) Notes: The VA Tech shooting was as highly or more highly publicized than the Columbine shooting. All the information here is taken from the official panel review. The panel review also states that if Cho had only used 10 round magazines, it was unlikely that the outcome would have been different. O CNN "Computers May Yield Clues About Mall Shooter," December 7, 2007, The New York Times "Details of Omaha Shooting Emerge," December 6, 2007 O Date: December 5, 2007 O Shooters: 1 ❑ Number of Guns in Shooter's Immediate Possession: 1 ❑ Types of Guns Used: AK -47 style semi-automatic rifle O Number of Magazines: 2 (Some reports indicate that the magazines were taped together "jungle style") ❑ Maximum Capacity of Largest Magazine: 30 rounds ❑ Number of Shots Fired: —30 ❑ Did Offender Reload: Unknown but likely (Police report that the shooter likely shot more than 30 rounds) ❑ Time from Start to End: —6 minutes ❑ How Guns were Acquired: Stolen from father ❑ Number Killed: 8 (9 including shooter) ❑ Number Wounded: 5 Notes: A depressed and suicidal teen randomly picked this mall and opened fire. There is no clear motive. O (A shooting on December 10, 2007 was a spree killing not a mass shooting. 12 hours Shootings took place over a 12 -hour period, were in two different locations about 75 miles apart. Shooter posted threats online between shootings) Mass Shootings in 2008 O St. Louis Dispatch "Thornton Used Stolen Gun in Kirkwood Killings," February 28, -34- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23113 Page35 of 71 2008, The Los Angeles Times "Killer of Five Left Note: 'Truth will win' The Gunman ha a Long -Running Feud with City Officials," February 9, 2008 ❑ Date: February 7, 2008 O Shooters: 1 ❑ Number of Guns in Shooter's Immediate Possession: 2 ❑ Types of Guns Used: .44 caliber revolver (article claims gun's make and model cannot be identified), Smith and Wesson .40 caliber semi-automatic pistol O Number of Magazines: 1 (Based on the fact that shooter stole the gun from police officer) O Maximum Capacity of Largest Magazine: Unknown (15 would be likely) O Number of Shots Fired: 15+ O Did Offender Reload: Unknown but unlikely ❑ Time from Start to End: O How Guns were Acquired: .44 caliber revolver was stolen over ten years before the shooting (shooter may not have known it was stolen), the .40 caliber handgun was stolen from a police officer the shooter shot O Number Killed: 6 (7 including shooter) O Number Wounded: 1 Notes: The shooter used all six rounds in his gun, shooting a police officer and taking his gun. It is unknown exactly how many shots he fired from it, but he shot at least 15 total. O U.S Fire Administration/Technical Report Series (See here http://www.usfa.fema.gov/downloads/pdf/publications/tr 167 .pdf) Report of the February 14, 2008 Shootings at Northern Illinois University (See http://www.niu.edu/febl4report/Febl4report.pdf) O Date: February 14, 2008 ❑ Shooters: 1 ❑ Number of Guns in Shooter's Immediate Possession: 4 (Reports indicate that he had 4 but may have only used two; the Remington and the Glock) O Types of Guns Used: Sig Sauer P232 9mm semi-automatic pistol, HiPoint CF380 .380 caliber semi-automatic pistol, Glock 19 9mm pistol, Remington Sportsman 48 12 gauge shotgun O Number of Magazines: At least 6 O Maximum Capacity of Largest Magazine: 33 (Shooter had 2 15 round magazines and 2 33 round magazines for the Glock) O Number of Shots Fired: 56 (6 rounds from the shotgun, 50 rounds from the Glock) O Did Offender Reload: Yes O Time from Start to End: 5 minutes O How Guns were Acquired: Legally purchased from gun store -35- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filedl2/23113 Page36 of 71 ❑ Number Killed: 5 (6 including shooter) ❑ Number Wounded: 21 ❑ Notes Both reports indicate that he fired with the Glock and Remington. Two fully loaded .380 magazines were found on the floor. The shooter was diagnosed with schizophrenia, depression, anxiety and had delusions. It is somewhat unclear what the motive for the killings was. (An incident occurring on September 2, 2008 was a spree killing, not a mass shooting.) ❑ The Associated Press "Santa Gunman Had Lost Job, Wife Before Gory Attack," December 27, 2008 O Date: December 24, 2008 O Shooters: 1 O Number of Guns in Shooter's Immediate Possession: 4 O Types of Guns Used: semi-automatic handguns ❑ Number of magazines: Unknown O Maximum Capacity of Largest Magazine: Unknown ❑ Number of Shots Fired: Unknown (One news account stated that all four guns were emptied) ❑ Did Offender Reload: Unknown but unlikely O Time from Start to End: Unknown O How Guns were Acquired: Purchased (Unknown if legal or not) O Number Killed: 9 (10 including shooter) ❑ Number Wounded: 2 Notes: There aren't any news reports indicating the brand or model of the guns or the size of the magazines. Mass Shootings in 2009 New York Tines, March 10, 2009 Location: Geneva County, AL Date: March 10, 2009 Number of Guns in Shooter's Immediate Possession: 4 Types of Guns Used: Bushmaster AR -15, SKS rifle, shotgun, and .38 caliber pistol Number of Magazines: Unknown Maximum Capacity of Largest Magazine: Unknown Number of Shots Fired: Unknown Did Offender Reload: Unknown Time from Start to End: Unknown How Guns Were Acquired: Unknown Number Killed: 10 -36- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page37 of 71 Number Wounded: 0 Fayeitevi I I e Observer, " Carthage Killings: A Key Eyewitness Speaks," March 31, 2009 Location: Carthage, NC Date: March 29, 2009 Shooters: 1 Number of Guns in. Shooter's Immediate Possession: 2+ Types of Guns Used: Shotgun, at least one other gun O Number Magazines: Unknown ❑ Maximum Capacity of Largest Magazine: Unknown ❑ Number of Shots Fired: Unknown ❑ Did Offender Reload: Unknown ❑ Time from Start to End: 15 minutes? O How Guns were Acquired: Unknown O Number Killed: 8 ❑ Number Wounded: 3 O The New York Times "Shooting in Binghamton, N.Y.," April 3, 2009; Bloomberg "Binghamton Killer Fired 99 Shots from Two Handguns, Police Say," April 8, 2009 O Date: April 3, 2009 O Shooters: 1 ❑ Number of Guns in Shooter's Immediate Possession: 2 O Types of Guns Used: Beretta .45 caliber semi-automatic pistol, Beretta 9mm semi- automatic pistol O Number of Magazines: 3+ O Maximum Capacity of Largest Magazine: 30 ❑ Number of Shots Fired: 99 O Did Offender Reload: Yes O Time from Start to End: Minutes (It took police hours to secure the building) O How Guns were Acquired: Legally purchased (Shooter had a license for the two guns) O Number Killed: 13 (14 including shooter) ❑ Number Wounded: 4 Notes: A somewhat deranged individual who believed police were secretly harassing him entered the immigration office and started shooting. The motive is unclear due to his mental condition and rambling letter. The number of magazines isn't exact, but at least two 30 round magazines were discovered for the 9mm and only 11 shots were fired from the .45. Pittsburgh Tribune -Review, "Gunman Kills 3, Wounds 9 Before Killing Himself at Collier Fitness Center," August 5, 2009 -37- DECLARATION OF GARY FLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page38 of 71 Location: Collier, PA Date: August 4, 2009 Shooters: 1 Number of Guns in Shooter's Immediate Possession: 4 Types of Guns Used: 2 x 9 mm pistols, .45 caliber pistol, .32 caliber pistol Number of magazines: 2+ Maximum Capacity of Largest Magazine: 30 Did Offender Reload: Unknown Number of shots fired: 50 Time from start to end: Unknown How Guns Were Acquired: Unknown Number Killed: 3 Number Wounded: 9 O ABC News "Alleged Fort Hood Shooter Nidal Malik Hasan was 'Calm,' Methodical During Massacre," November 6, 2009, The Dallas Morning News "Investigators Detail Ammo Found at Fort Hood Shooting Scene," October 21, 2010 (Updated November 26, 2010) ❑ Date: November 5, 2009 O Shooters: 1 O Number of Guns in Shooter's Immediate Possession: 1-2 ❑ Type of Gun Used: FN Herstal 5.7 tactical pistol (Smith and Wesson .357 magnum was found but not used in the shooting) O Number of Magazines: 15 (6 loaded with 177 rounds, 6 empty with 146 spent casings, 3 empty with 68 casings) ❑ Maximum Capacity of Largest Magazine: 20-30 ❑ Number of Shots Fired: 214 ❑ Did Offender Reload: Yes ❑ Time from Start to End: Minutes (It took police hours to secure the building) ❑ How Guns were Acquired: Legally purchased O Number Killed: 13 O Number Wounded: 38 Notes: The widely covered Fort Hood shooting. Mass Shootings in 2010 St. Louis Post -Dispatch, "Why the Rampage? Police Plan to Interview Family of Gunman, Co-workers at ABB Plant," January 9, 2010 Date: January 7, 2010 Location: St. Louis, MO Shooters: 1 -38- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page39 of 71 Number of Guns in Shooter's Immediate Possession: 3 or 4 Type of Guns Used: Romarm AK -47 -style rifle, Tristar 12 gauge shotgun, Hi -Point .40 caliber pistol, possibly one other pistol Number of magazines: 2 Maximum Capacity of Largest Magazine: `Banana -style" magazines — probably LCMs Did offender reload? Unknown Number of shots fired: "Over 100" Time from Start to End: Unknown How Guns Were Acquired: Unknown Number Killed: 3 Number Wounded: 5 Notes: Workplace shooting by disgruntled employee The Lynchburg News & Advance, "Law Officers Maintained Dark Vigil to Wait Out Appomattox Shooting Suspect." Date: January 19, 2010 Shooters: 1 Number of Guns in Shooter's Immediate Possession: Unknown Types of Guns Used: "High-powered rifle" Number of Magazines: Unknown Maximum Capacity of Largest Magazine: Unknown Number of Shots Fired: Unknown Time from Start to End: Unknown How Guns Were Acquired: Unknown Number Killed: 8 Number Wounded: 0 Washington Times: Three are Arrested in Drive-by Shooting," April 1, 2010 Date: March 30, 2010 Shooters: 3 Number of Guns in Shooter's Immediate Possession: 3 Types of Guns Used: AK -47 "assault rifle," 9 mm semiautomatic pistol, .45 caliber semiautomatic pistol Number of Magazines: Unknown Maximum Capacity of Largest Magazine: Unknown Did Offender Reload: Unknown Number of Shots Fired: Unknown Time from Start to End: Unknown How Guns Were Acquired: Unknown Number Killed: 4 -39- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filedl2/23/13 Page40 of 71 Number Wounded: 5 Miami Herald "Massacre in Hialeah Captured by Cameras," June 9, 2010. O Date: June 6, 2010 O Shooters: 1 O Number of Guns in Shooter's Immediate Possession: 1 O Types of Guns Used: .45 caliber semi-automatic handgun O Number of Magazines: Unknown O Maximum Capacity of Largest Magazine: Unknown O Number of Shots Fired: Unknown ❑ Did Offender Reload: Unknown ❑ Time from Start to End: Unknown ❑ How Guns were Acquired: Unknown O Number Killed: 4 O Number Wounded: 3 ❑ The Associated Press "Police Report: No Racism Before Conn. Shootings," May 12, 2011, The Hartford Courant "Shooter had a Plan, Police: Mass Murderer hinted at His Intentions to Kill Co -Workers," May 13, 2011, The Associated Press "Cops: Conn. Gunman May Have Targeted Some Victims," August 4, 2010 O Date: August 3, 2010 ❑ Shooters: 1 ❑ Number of Guns in Shooter's Immediate Possession: 2 (Shooter also had an unused shotgun in his car) O Type of Gun Used: 2 x Ruger 9mm semi-automatic handguns O Number of Magazines: 3-4 (Uncle stated that he saw 4 17 round magazines the night before the shooting but some reports say there was only 1 extra magazine) ❑ Maximum Capacity of Largest Magazine: 17 rounds O Number of Shots Fired: 19 0 Did Offender Reload: Unknown (Reports seem to indicate that he only used one of the guns. If so, he reloaded) ❑ Time from Start to End: 3 minutes ❑ How Guns were Acquired: Legally registered ❑ Number Killed: 8 (9 including shooter) O Number Wounded: 2 O Notes: Eyewitness accounts state that he used one gun while carrying his lunchbox which held the other gun, magazines and extra ammo. The Buffalo News "Two more sought in shootings," August 20, 2010 Buffalo, NY -40- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page41 of 71 Date: August 14, 2010 Shooters: 1 Number of Guns in Shooter's Immediate Possession: Unknown Type of Guns Used: Unknown Number of magazines: Unknown Maximum Capacity of Largest Magazine: Unknown Number of Shots Fired: Unknown Did Offender Reload? Unknown Time from Start to End: Unknown How Guns Were Acquired: Unknown Number Killed: 4 Number Wounded: 4 Mass Shootings in 2011 O NBC News "Tucson Shooting with High -Capacity Magazines Reignites Gun Debate," January 9, 2011, Reuters "TIMELINE: Tucson Shooting Rampage as it Unfolded," January 14, 2011; New York Times January 10, 2011, p. Al O Date: January 8, 2011 ❑ Shooters: 1 O Number of Guns in Shooter's Immediate Possession: 1 O Types of Guns Used: Glock 19 9mm semi-automatic handgun O Number of Magazines: 4 O Maximum Capacity of Largest Magazine: 2 x 33, 2 x 15 O Number of Shots Fired: Unknown O Did Offender Reload: Not successfully. Witness reports conflict as to exactly what happened. O Time from Start to End: 5 minutes O How Guns were Acquired: Legally purchased ❑ Number Killed: 6 ❑ Number Wounded: 13 O Mlive "Felon Linked to Stolen Gun in Rodrick Dantzler's Killing Spree Pleads to Firearms Charge," June 11, 2013, The Grand Rapids Press "Wife's Intent to Leave May have Set Off Killer, Police Say Gun was Stolen from a Kent County Home, but Motivation Remains Elusive," July 10, 2011, Wood TV Channel 8 "Man to Plead to Selling Dantzler a Gun," June 27, 2013 ❑ Date: July 7, 2011 ❑ Shooters: 1 ❑ Number of Guns in Shooter's Immediate Possession: 1 O Types of Guns Used: Glock 9mm semi-automatic handgun O Number of Magazines: 2+ -41- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Fifedl2/23/13 Page42 of 71 ❑ Maximum Capacity of Largest Magazine: lx 12 round (One report indicates that police had reason to believe he had an "extended" magazine) ❑ Number of Shots Fired: Unknown O Did Offender Reload: Yes O Time from Start to End: 8 hours (4 hour standoff with police and hostages before committing suicide) O How Guns were Acquired: Stolen ❑ Number Killed: 7 (8 including shooter) O Number Wounded: 2 Notes: No clear motive and not much evidence regarding the magazines or their capacity. O CNN "Gunman Kills 3, Wounds Other at Nevada IHOP," September 7, 2011 O September 6, 2011, RGJ "TROP Shooting One Year Later: 85 Seconds that Changed Carson City," September 12, 2012 O Date: September 6, 2011 O Shooters: 1 O Number of Guns in Shooter's Immediate Possession: 1 O Types of Guns Used: Norinco MAK 90 (Illegally modified to be fully automatic) O Number of Magazines: 3 O Maximum Capacity of Largest Magazine: 2x 30, lx Unknown (likely 30) O Number of Shots Fired: 60+ O Did Offender Reload: Yes ❑ Time from Start to End: 1 minute 25 seconds O How Guns were Acquired: Unknown O Number Killed: 4 (5 including shooter) O Number Wounded: 14 o Notes: Shooter had been diagnosed with paranoid schizophrenia at age 18 and had used medication. The toxicology reports show no medication in his system. ❑ The Los Angeles Times "Prosecutors Seek Death Penalty in Salon Shooting Case," October 15, 2011, The Press Telegram "DA to Seek Death Penalty for Alleged Seal Beach Shooter," October 14, 2011 O Date: October 14, 2011 O Shooters: 1 ❑ Number of Guns in Shooter's Immediate Possession: 3 O Types of Guns Used: Springfield 9mm semi-automatic handgun, Heckler and Koch .45 caliber handgun, Smith and Wesson .44 Magnum O Number of Magazines: 5+ (Reports say he had "extra magazines") O Maximum Capacity of Largest Magazine: Unknown O Number of Shots Fired: Unknown -42- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page43 of 71 ❑ Did Offender Reload: Yes ❑ Time from Start to End: 2 minutes ❑ How Guns were Acquired: Legally purchased and registered ❑ Number Killed: 8 ❑ Number Wounded: 1 • Notes: Upset over a custody battle, the father executed his ex-wife and several employees at a salon. It is unclear how many magazines he had at the time or their capacities. It is also unclear how many shots were fired. Mass Shootings in 2012 O Reuters "Accused Gunman in Oakland Shooting Unfit for Trial: Judge," January 7, 2013, The San Jose Mercury News "California's Tough Gun Laws Could Not Prevent East Oakland Tragedy," April 5, 2012 O Date: April 2, 2012 O Shooters: 1 O Number of Guns in Shooter's Immediate Possession: 1 ❑ Types of Guns Used: Unknown .45 caliber handgun ❑ Number of Magazines: 4 ❑ Maximum Capacity of Largest Magazine: Unknown (News sources described them as "fully loaded") ❑ Number of Shots Fired: Unknown ❑ Did Offender Reload: Yes ❑ Time from Start to End: Minutes (Shooter was apprehended 2 hours later) ❑ How Guns were Acquired: Legally purchased (Police are still confirming the gun they found that has a matching serial number to the one purchased by the shooter was used in the murders) ❑ Numbers Killed: 7 O Number Wounded: 3 • Notes: The San Jose Mercury News states that the magazines were 8 round magazines. California law prohibits magazines larger than 10 rounds. The shooter has been diagnosed as paranoid schizophrenic and is currently unfit to stand trial. ❑ The Denver Post "12 Shot Dead, 58 Wounded in Aurora Movie Theater During Batman Premier," July 21, 2012, ABC Channel 7 News "Aurora, Colo Theater Shooting Timeline, Facts," July 26, 2012 ❑ Date: July 20, 2012 ❑ Shooters: 1 ❑ Number of Guns in Shooter's Immediate Possession: 3 ❑ Types of Guns Used: Remington tactical shotgun, Smith and Wesson M&P semi- -43 - DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filedl2l23113 Page44 of 71 automatic rifle, Glock .40 caliber semi-automatic handgun ❑ Number of Magazines: Unknown ❑ Maximum Capacity of Largest Magazine: 1 x 100 round magazine, which jammed; others unclear O Number of Shots Fired: Unknown ❑ Did Offender Reload: Yes ❑ Time from Start to End: —6 minutes O How Guns were Acquired: Purchased legally O Numbers Killed: 12 O Number Wounded: 58 ▪ Notes: Some information has not been released or determined yet. While the shooter had purchased 6,295 rounds (2,600 for the Glocks, 375 for the Remington, and 3,370 for the Smith and Wesson) it is unknown how many were with the shooter at the time, how many magazines were with him, and how many shots were fired. ❑ The Los Angeles Times "Sikh Temple Shooting: Gun Shop Owner Says Wade Page Seemed Normal," August 8, 2012; "7 Shot Dead at Sikh Temple," August 6, 2012. O Date: August 5, 2012 O Shooters: 1 ❑ Number of Guns in Shooter's Immediate Possession: 1 W ❑ Type of Gun Used: Springfield Armory XDM 9mm semi-automatic handgun ❑ Number of Magazines: 3 ❑ Maximum Capacity of Largest Magazine: 19 O Number of Shots Fired: 19+ (50-60 according to one witness) O Did Offender Reload: Yes O Time from Start to End: Unknown ❑ How Guns were Acquired: Purchased legally O Numbers Killed: 6 (7 including shooter) O Number Wounded: 3 Notes: The final FBI report has not been released yet. Several news outlets describe "several empty clips" but there is no evidence suggesting how many, how large or how many rounds were fired. Associated Press, Minnesota state wire 9-29-12 Date: 9-27-12 Shooters: 1 Number of Guns in Shooter's Immediate Possession: 1 Types of Guns Used: Glock 9 mm semiautomatic pistol Number of Magazines: Unknown Maximum Capacity of Largest Magazine: Unknown -44- DECLARATION OF GARY KLECK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentl9 Filed12/23/13 Page45 of 71 Number of shots fired: At least 46 Did Offender Reload: Yes Time from Start to End: How gun was acquired: Legally purchased at gun store a year earlier Number killed: 6 Number wounded: 2 ❑ The New York Times "Children were All Shot Multiple Times with a Semiautomatic, Officials Say," December 15, 2012; CNN "Newton Shooting Details Revealed in Newly Released Documents," March 29, 2013; Office of the State's Attorney, Judicial District o Danbury, Report of the State' s Attorney for the Judi ci al District of Danbury on the Shootings at Sandy Hook Elementary School and 36 Yogananda Street. Newtown, Connecticut on December 14, 2012, available online at http://www.thecrimereport.org/news/i nside-crimin al -jus tice/2013-11-report- newtown-massacre-was-over-in-minutes ❑ Date: December 14, 2012 O Location: Newtown, CT ❑ Shooters: 1 ❑ Number of Guns in Shooter's Immediate Possession: 3 O Types of Guns Used: Bushmaster XM15-E2S.223 caliber semi-automatic rifle, Glock 20 10 nun semi-automatic pistol, Sig Sauer P226 9 mm semi-automatic pistol (not used in shootings) O Number of Magazines: 12+ O Maximum Capacity of Largest Magazine: 10 x 30 round, 2+ others of unknown O Number of Shots Fired: 154+ O Did Offender Reload: Yes ❑ Time from Start to End: c. 4 Minutes ❑ How Guns were Acquired: Stolen from mother ❑ Numbers Killed: 26 (27 including shooter's mother, 28 including shooter) O Number Wounded: 2 Notes: The shooter seemed to have used mostly the Bushmaster, and 154 casings for it were found. That is the minimum number of shots fired. (Considering he shot himself with the Glock, 155 would be the minimum) Of the 30 round magazines, 3 were found completely full, three were completely empty, and the others had 10, 11 or 13 rounds left in them. Mass Shootings in 2013 (January 1 through July 31) - None (A Santa Monica shooting on 6-7-13 was a spree shooting, not a mass shooting — killer shot 9 people in 3 different locations.) -45- DECLARATION OF GARY KLECK Pages 46 to 71 (Kleck Ciriculum Vitae) Intentionally Omitted EXHIBIT C 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Document45-2 Filed02/10/14 Pagel of 20 C. D. Michel - S.B.N. 144258 Clinton B. Monfort - S.B.N. 255609 Sean A. Brady - S.S.N. 262007 Anna M. Barvir - S.B.N. 268728 MICHEL & ASSOCIATES, P.C. 180 E. Ocean Boulevard, Suite 200 Long Beach, CA 90802 Telephone: (562) 216-4444 Facsimile: (562) 216-4445 Email: cmichel@michellawyers.com Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION LEONARD FYOCK, SCOTT HOCHSTETLER, WILLIAM DOUGLAS, DAVID PEARSON, BRAD SEWERS, and ROD SWANSON Plaintiffs vs. THE CITY OF SUNNYVALE, THE MAYOR OF SUNNYVALE, ANTHONY SPITALERI, in his official capacity, THE CHIEF OF THE SUNNYVALE DEPARTMENT OF PUBLIC SAFETY, FRANK GRGURINA, in his official capacity, and DOES 1-10, Defendants. CASE NO: CV 13-05807 RMW SUPPLEMENTAL DECLARATION OF GARY KLECK IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION -1- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Document45-2 Filed02/10/14 Page2 of 20 DECLARATION OF GARY KLECK 1. Sunnyvale suggests that large -capacity magazines (LCMs) are rarely used for self-defense. Since there are probably at least 1 million defensive gun uses (DGUs) per year (Kleck and Kates 2001, Chapter 6), even if just one in a thousand DGUs involved LCM use, this would be 1,000 defensive uses with LCMs per year. And if Sunnyvale is asserting that it is reasonable to describe this many defensive uses of LCMs as rare, the exact same characterization would apply at least as strongly to the number of times LCMs were used in mass shootings and were likely to have affected the number of casualties simply because the latter quantity may well be as low as three in the past 30 years. 2. The truth is no one knowshow many times LCMs are used defensively. I suspect that only a tiny fraction of DGUs involve over 10 rounds being fired. However, assuming that one is trying to assess the relative costs and benefits of an LCM ban, it matters a great deal just how tiny this fraction is. It is clear that the benefits are likely to be extremely limited, so DGUs in which large numbers of rounds had to be fired to prevent deaths or injuries would not have to be very numerous in order to outnumber the shooting incidents in which LCM use affected the number of casualties 3. Sunnyvale relies on the Expert Report of Lucy Allen to support their claim that few DGUs involve many rounds being fired. This report establishes no such thing. Allen analyzed a non -randomly selected set of DGUs reported in the National Rifle Association magazine, The American Rifleman in its "Armed Citizen" column, and drew conclusions about the entire population of DGUs based solely on this analysis; specifically that it is "rare" (without specifying how rare) for a person to fire more than ten rounds when using a gun in self-defense incidents. Leaving aside the validity of this conclusion, neither the NRA nor Allen claims these incidents were chosen according to any acknowledged scientific random sampling procedure. There was no formal basis for believing that this sample was representative of all U.S. DGUs, with respect to number of rounds fired or any other attribute of the events. Therefore, it was impossible to legitimately infer from an analysis of this sample the fraction of all U.S. DGUs that involve more than 10 rounds fired by the defender. Anyone who was a genuine expert on the conditions under which one can -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Document45-2 Filed02/10/14 Page3 of 20 infer conclusions about a population from a sample would never draw the conclusions that Ms. Allen drew, based on the sample she analyzed. This by itself is a strong indication that she is not an expert on these matters. 4. Further, even if NRA staff had somehow selected a simple random sample of all DGUs, there wer- far too few cases in the NRA sample analyzed by Allen. (n=279) to reliably estimate the share of DGU incidents that involved more than 10 rounds being fired, if such incidents are relatively rare, though not as rare as Allen claims. Consider the implications, for example, if just 1% of all DGUs involved over 10 rounds being fired. Since national surveys that have specifically asked about DGUs have consistently indicated 0.5-3.5 million DGUs per year, it would be reasonable to assume an annual average of at least 1 million DGUs. If this were the total frequency of DGUs, 1% would imply a number of DGU incidents with over 10 rounds fired that was huge in absolute terms — about 10,000 per year. Thus, this percentage does not have to be very large in order for it to imply a huge absolute number of incidents. 5. Even if the NRA sample were a representative simple random sample of all DGUs, Allen's results would not be statistically sufficient to reject the idea that 1% of DGUs involved over 10 rounds fired. Ms. Allen's finding of 0% of DGUs with over 10 rounds fired in her small sample of DGUs is actually not statistically inconsistent with the hypothesis that 1% of the entire population of DGUs involve over 10 rounds fired, since her 0% result is well within the bounds of what one could reasonably expect as a sample result in a randomly selected sample of just 279 cases. Samples selected from larger populations of events do not all perfectly resemble the population, since they are always subject to random sampling error. That is, due to the random character of the sampling process, an analyst may, by pure chance, obtain a sample that contains either more or fewer of the events of interest than would be the case if the sample resembled the population perfectly. 6. The 95% confidence interval (CI) estimate of the percent of DGUs with over 10 rounds fired (symbolized as p) is a range in which one would expect to find 95% of all the estimates one would obtain if one selected an infinite number of samples of a given size. If one assumes that the true population -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Document45-2 Filed02/10/14 Page4 of 20 percentage is 1% (p=.01), the 95% CI is -0.17 to 2.17%. This is the result of the following computations: 7. The formula for the 95% CI is: p plus or minus 1.96 (square root of (p x q)/n), where q=1 -p 8. If p=.01, then the 95% CI = 0.01 +/ — 1.96 (square root of ((.01 x .99)/279)) =0.01 +/- 0.01168 = -0.00168 to .02168, or -0.168% to 2.168% 9. This means that if the true population percentage of DGUs with over 10 rounds fired were 1%, and one took an infinite number of random samples, each with 279 DGUs, one would expect 95% of sample estimates of this percentage to be between -0.168% and 2.168%. Of course, percentages can't really go below 0, but this is what statistical theory predicts. 10. In plain English, what this means is that even if 1% of all DGUs involved over 10 rounds, one could nevertheless realistically expect to get a percentage of 0 in a sample of 279 DGUs, due solely to random sampling error. Thus, getting a sample result of 0%, as Allen did, is not a statistically significant result allowing one to reliably reject the idea that the percentage in the population of all DGUs with over 10 rounds fired is 1%. 11. Sunnyvale contends the evidence provided by Plaintiffs does not show there are "reasonable grounds" to believe a crime victim would ever face multiple attackers requiring over 10 rounds to be fired in defense; calling such scenarios "fantastical." The policy -relevant issue is whether DGUs in which victims face multiple offenders in their homes occur often enough for the number of lives saved or injuries avoided by defensive LCM use to exceed the number of such harms caused by LCM use by offenders. Since the latter number is close to zero, even if crimes with multiple offenders were quite rare, they could still result in far more harm averted by victim defensive use of LCMs than harm caused by offender use. 12. Suppose that only a tenth of 1% of DGUs involved victims facing multiple attackers in the home. Since there are at least a million DGUs per year, this would imply 1,000 such DGUs a year, compared to less than one mass shooting per year in which LCM use caused more casualties (or even the few mass shooting generally per annum). -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Document45-2 Filed02/10/14 Pages of 20 13. It is worth noting that the only reason I offered no evidence about the frequency of people facing multiple offenders is simply because published NCVS data do not provide sufficiently detailed breakdowns of number of offenders. Sunnyvale offers no evidence that such crimes do not occur frequently. 14. NCVS respondents, however, were asked for the exact number of offenders, so I therefore examined an NCVS dataset I happened to have on my hard drive, covering the period 1992-1994. My analysis of that dataset indicated that the NCVS estimated, for 1992-1994, that there were 30,497,554 violent crimes in which victims directly confronted offenders and could state the number of offenders. Of these, 6,368,235 involved multiple offenders. Of these, 1,997,481 involved four or more offenders. Since this total pertained to a three-year period, the annual average was 665,827. Thus, during that period American crime victims faced four or more offenders in 665,827 violent crime incidents per year. This was a peak crime period, but even if there were half as many in recent years, the annual total would be about 333,000. In short, by any reasonable standard, it is an eminently realistic prospect that an American crime victim would face four or more offenders in a violent crime. 15. Sunnyvale characterizes my descriptions of typical mass shootings as "flawed and misleading." As purported evidence (aside from referring to a brief filed in a different case, which is addressed in Paragraphs 31-46 below), Sunnyvale provides only one example of the way I addressed missing data. I would say that my phrasing of some of my findings was not sufficiently precise, but not "flawed" or "misleading." Instead of saying that "no LCM was used in ... 35 incidents," I should have stated that "no LCM was known to have been used in 35 incidents." My underlying assumption was that if an LCM had in fact been used in a mass shooting, that at least one available news account would have reported this fact, especially in light of the editorial policies of so many news outlets favoring bans on LCMs. It seems unlikely that not a single such news outlet would take advantage of a mass shooting in which an LCM had actually been used to report this fact to its audience. Further, I also made use of the compilations of LCM- involved mass shootings by advocates of LCM bans like the Violence Policy Center, Mayors Against Illegal Guns, and Mother Jones magazine, for reports of LCM use in mass shootings, on the assumption -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Document45-2 Filed02/10/14 Page6 of 20 that these organizations were well -motivated to search for any evidence of such LCM use. If LCM use had been reported in any news story, even one that my assistants and I missed, it was likely that the staff of these organizations would have located at least one of these news stories. Thus, I stand by the position that most mass shootings did not involve LCMs, and that, to phrase it very precisely, there is no affirmative evidence that LCMs were used in 35 of the 57 mass shootings that I studied. In any event, as I have maintained, whether a LCM is used in a mass shooting is rarely relevant. 16. Sunnyvale cites three cases occurring within the past thirty years, in which bystanders tackled shooters two of which I had already acknowledged in my initial declaration (the 1993 Long Island railroad incident and 1998 Oregon incident). The Gabrielle Giffords shooting in Tucson, however, is questionable in this regard because it is unclear from media accounts whether bystanders were able to subdue the shooter because (1) he was reloading (Sunnyvale's position), or because (2) his magazine had failed due to a broken spring and he was unable to fire. Since such magazine defects would disrupt a mass shooter's firing regardless of whether the magazine's capacity was large or small, interpretation (2) would not support the position that use of non-LCMs would have made a difference. 17. Sunnyvale then pads out the list of cases supposedly supporting the proposition that magazine changes affected casualty count in mass shooting by citing the Sandy Hook shooting, even though bystanders did not tackle the shooter or otherwise intervene. Sunnyvale switches in mid -paragraph to an entirely different argument as to why LCM use might affect casualty counts — that potential victims could escape "while the shooter was switching magazines." This is an especially deceptive passage, because Sunnyvale switches from discussing facts to discussing evidence -free speculations, without informing the reader of this critical shift. Their full statement reads: "And law enforcement sources have stated that a half-dozen children may have been able to escape from Sandy Hook Elementary School while the shooter was switching magazines" (8/8-10, emphasis added). The text of the supporting Hartford Courant article cited by Sunnyvale makes it clear that this was just a speculation by one or more unnamed law enforcement persons. Some children did indeed escape, and there was indeed a pause in the shooting, but investigators -6- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Document45-2 Filed02/10/14 Page7 of 20 could not establish either (1) that the children escaped during the pause, or (2) that the shooter was reloading during the pause (see States Attorney Report). 18. Investigators also found multiple magazines that had cartridges still left in them, indicating that even when the shooter did change magazines, he did not do so because he had to, because he had exhausted the magazines, but rather that he had chosen to change magazines even though he could have continued firing with the same magazine. The significance of this is that at the time the children were escaping, the shooter could have chosen to fire at them by simply continuing to fire the remaining rounds in the "old" magazine, rather than changing magazines "prematurely," as he repeatedly did. This means even if the children escaped during the pause (which is not known), and even if the pause was due to a magazine change (which is also not known), one could still not reliably conclude that the children escaped because the shooter had to change a magazine. In sum, there was no factual foundation whatsoever for the speculation that a need to reload saved any lives in the Sandy Hook incident. 19. John Donahue makes, or hints at, a plainly false claim in his paragraph 11. He vaguely alludes to "a review of the resolution (sic) of mass shootings in the U.S." on which he based his conclusions, but does not say if this is a review he performed or if he was instead citing a review conducted by others. If it is the former, he failed to describe or even briefly outline the methods by which he conducted the review, making it impossible to judge whether it was competently done. If it is the latter, he failed to cite a source where a reader could find a detailed description of the "review." Expert scholars describe their methods and cite sources. As things stand, there is no reliable basis for believing Donahue was doing anything in paragraph 11 other than stating his own unsupported personal opinions. 20. His specific claim is that "citizens have frequently taken advantage of a perpetrator stopping to reload his weapon to tackle him or otherwise subdue him in at least 20 separate shootings in the United States since 1991" (Donahue Declaration, p. 4). Donahue does not claim that these "shootings" were mass shootings or that they involved semiautomatic weapons, multiple firearms, or multiple magazines, which are normally used by mass shooters. There may well be shootings in which bystanders subdued shooters -7- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Document45-2 Filed02/10/14 Page8 of 20 while they reloaded, in shootings bearing little resemblance to mass shootings, such as shootings in which the perpetrators used types of firearms that take far longer to reload than the semi-automatic firearms used in most mass shootings. These sorts of cases, however, would tell us nothing about whether banning LCMs would do any good, because they have no relevance to the willingness of bystanders to intervene when shooters have semi-automatic guns capable of accepting detachable, possibly large -capacity, magazines. It is the latter sorts of shootings that are relevant to the question of whether LCMs should be banned. In short, if Donahue's undocumented 20 shooting incidents were radically different from the mass shootings in which LCMs might contribute to the casualty count, they are irrelevant to the merits of an LCM ban. In any case, Donahue does not cite 20 specific cases, or cite any external sources that document these 20 cases. Further, I am not aware of more than two or three such cases over the past thirty years. 21. Instead, Donahue cites only three cases that he claims fit his description, and then tosses in a fourth case that, even based on his own inaccurate description, did not involve victims subduing a shooter, while he was reloading or at any other time. The first case, occurring near the White House, was not a mass shooting; indeed, the gunman did not shoot a single person. Further, there was no indication he was going to shoot any of the people who tackled him, making it far safer to do so than would be the case in a mass shooting. The incident was indeed a shooting in the sense that a person was criminally firing a gun, but was not a shooting in the sense that the gunman was shooting people. It therefore has no clear relevance to the merits of banning LCMs. 22. The 1993 Long Island shooting cited by Donahue does genuinely fit Donahue's description, but the 2011 shooting involving Gabby Giffords is not so clear, as explained above in Paragraph 17, because it cannot be determined from eyewitness accounts whether bystanders were able to subdue the shooter because he was reloading (as Donahue claims) or because he was struggling with a malfunctioning magazine (a spring broke in one of the magazines he was using, or trying to use). If the latter is correct, it does not help support an LCM ban, since any magazine, of any size, might fail, thereby giving bystanders a chance to intervene. Finally, Donahue makes the same speculative and unfounded claim about 11 children -8- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Document45-2 Filed02/10/14 P age9 of 20 at Sandy Hook Elementary School being able to escape because the shooter was reloading refuted above in Paragraphs 18-19. 23. In sum, Donahue could cite only one genuinely supportive incident (the 1993 Long Island shooting), and one possibly supportive case (the Gabby Giffords shooting), over a period of 30 years, to support his claim that citizens have "frequently" subdued shooters while they stopped to reload. One or two cases in 30 years probably would not fit most people's notions of what "frequently" means. As to his claim that there have been "at least 20 separate shootings" where this happened, Donahue provides no documentation at all. Twenty cases in thirty years, in a nation with over 300 million people, is not very frequent either, but Donahue did not supply supporting evidence of this many or even half this many. 24. Thus, Sunnyvale actually offered nothing to support the claim that victims in mass shootings have escaped while the shooter was changing magazines. 25. Sunnyvale asserts that where LCMs are used there are more casualties. But, correlation is not causation, i.e., this simple statistical association does not establish that LCM use causes a higher casualty count. Instead, all evidence known to me, including all evidence presented by Sunnyvale, is completely consistent with the proposition that LCM has no causal effect of its own on body count, but rather is merely the result of some mass shooters' more lethal intentions, which are what actually cause higher casualty counts. Neither Dr. Koper nor Ms. Allen has offered any evidence, of any quality, that this association reflects a causal effect of LCM use on the number of people killed or injured in mass shootings, as distinct from it being a spurious association due to the fact that the lethality of mass shooters affects both the casualty count and the choice of weapons and magazines. 26. Sunnyvale points out that LCMs are used more often in certain crimes, but mere use of an LCM in a crime is irrelevant unless more than 10 rounds were actually fired, because, as I explained in my original declaration in this matter, LCMs merely provide surplus rounds that are not fired. Since criminals rarely fire large numbers of rounds in a given crime incident -- only 2.5-3.0% of all violent crime in which a handgun was fired involved over 10 rounds fired (under 1% of all handgun crimes) — the fact that they use -9- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Document45-2 Filed02/10/14 Page10 of 20 LCMs more often further supports that magazine capacity usually does not matter in a crime. 27. Unless LCM use actually causes, to some degree, the number of victims harmed in crime incidents, or specifically in mass shootings, there is no valid evidence supporting restrictions on LCMs, let alone banning possession by law-abiding individuals. The City offers no evidence, and I am not aware of any, that removing LCMs from the homes of the law-abiding will reduce crime or increase safety in any way. A mere statistical association between LCM use and casualty count is not sufficient to establish that one causes the other. Sunnyvale correctly notes that the number of rounds fired and victims shot in mass shooting with LCMs is larger than the number in those without LCMs, but fails to note that this would be true even if LCM use had no causal effect whatsoever on the harm done in these shootings. This is so because the lethality of the shooter's intentions, i.e. the degree to which he intends to shoot many people, almost certainly affects both (1) the number of people he in fact ends up shooting, and (2) the choice to bring LCMs (along with more guns and more total rounds of ammunition) into the incident. Mass shootings are typically planned, and thought about by the shooter for a long time, offering plenty of time for offenders to make preparations such as acquiring guns, ammunition, and magazines. 28. If these premises are correct, the result would be a spurious (noncausal) association between LCM use and number of casualties. Sunnyvale's experts do nothing to rule out or even mildly undercut this interpretation of the associations they cite. The desire to increase the death toll would cause an increased likelihood that an aggressor would acquire and bring LCMs to a shooting. 29. The claim that LCM use has an actual causal effect of its own on victim count in mass shootings would be more plausible if close analysis of the details of actual incidents indicated the LCM use was actually necessary to inflict as many injuries as were inflicted in LCM-involved mass shootings. This sort of analysis, however, indicates precisely the opposite. There are no mass shootings in which the details indicate that the shooter needed an LCM to inflict the amount of harm he inflicted. Instead, in all incidents where the relevant information was available, mass shooters had either multiple guns or multiple magazines, and thus could easily fire many rounds either without reloading or by quickly reloading a -10- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Document45-2 Filed02/10/14 Page11 of 20 detachable magazine. The details likewise show that even if shooters had lower capacity magazines and had to reload slightly more often, this would not slow their rate of fire, since the killers in actual mass shooting average so low a rate of fire that the 2-4 seconds it takes to reload would be no longer a time period than the average interval between shots fired in mass shootings (Kleck Declaration). 30. Attached hereto as Exhibit F is a true and correct excerpt of my book, Targeting Guns: Firearms and Their Control 125 (Aldine De Gruyter 1997). Rebuttal of San Francisco's Critiques 31. Sunnyvale references a brief filed by the City of San Francisco in a separate lawsuit against that city challenging its similar ordinance, as purportedly showing that the effectively identical declaration 1 submitted on behalf of the plaintiffs in that case as to the one I submitted in this case contains claims that are "flawed and misleading." The following paragraphs are my responses to each of the City of San Francisco's attacks on my work. Citations to "SF" refer to the page and line(s) from San Francisco's brief, according to internal pagination, where the relevant text occurs. E.g., the first line of SF's section titled Statement of Facts would be cited as 1/18, denoting p. 1, line 18. 32. 5/25-27. It's probably a minor point, but SF subtly mischaracterizes my DGU estimates, claiming that we estimated that there were 2.5 million DGUs "each year." This is misleading. The survey that generated that estimate was conducted in early 1993, and the strongest estimates generated by the survey pertained to the previous 12 months. Thus, the 2.5 million estimate pertained to a specific single year, 1992, which was a peak crime year, and also likely to be a peak year for defensive uses of firearms by crime victims. In more recent years, with lower crime rates, the annual number of DGUs would likely be smaller. 33. 5/23 to 6/11. Every single one of the criticisms of the Kleck-Gertz estimates of DGU frequency cited by SF, as well as all other published criticisms, have been thoroughly rebutted for years — a handy source compiling all of the rebuttals into one place is Chapter 6 of the 2001 book Armed (Kleck and Kates 2001). None of the experts or sources cited by SF have refuted a single one of these rebuttals. -11- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Document45-2 Filed02/10/14 Page12 of 20 34. More specifically, every single claim made by David Hemenway and cited by SF was false. For example, our survey did not "show 132,000 perpetrators killed or wounded by defenders each year," and thus there could not be any conflict between our survey results and hospital data on numbers killed or injured. We had too few DGU sample incidents (n=213, unweighted) to reliably estimate the share that resulted in wounded offenders, so our survey did not imply any particular number of "perpetrators killed or wounded by defenders each year," and it was therefore impossible to show any contradiction between our estimates and hospital data. 35. Likewise, our survey did not show that "more guns are wielded to defend against rapes each year than there are actual rapes or attempted rapes each year," for the simple and indisputable reason that we do not know the actual number of such crimes that occur each year (among many other problems with Hemenway's claim). It is universally understood among criminologists that neither the National Crime Victims Survey ("NCVS") nor any other source can tell us the total number of sexual assaults or any other crime, because the true number of crimes is almost certainly larger than the NCVS indicates. Hemenway also compared data on the wrong universe of sexual assaults, citing figures that pertained to a smaller, noncomparable, subset of these crimes (Kleck and Kates 2001, Chapter 6). 36. In sum, there is no scholarly foundation for the claim that the Fleck -Gertz or other survey -base. estimates of DGU frequency are too high. Quite the contrary, the overwhelming weight of scholarl evidence favors the proposition that surveys are more likely to underestimate the frequency of this sort o crime -related experience than to overestimate it. To report a DGU in a survey requires that the responden who has had such an experience be willing to report (1) a victimization experience (otherwise there can b no defensive reaction to a crime), (2) their possession of a gun (otherwise the defensive action could not b classified as a defensive use of a gun), and (3) (usually) the crime of unlawful possession of a firearm in public place (since most DGUs occur in public places where, in 1993, it was unlawful for all but a tin percent of the population to possess a gun). The scientific literature on survey response errors uniforml indicates that survey respondents in the general adult population on net underreport (1) crim -12- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Document45-2 Filed02/10/14 Page13 of 20 victimizations, (2) gun possession, and (3) unlawful behaviors by the respondent. Consequently, estimates of DGU frequency are far more likely to be too low than too high (see Kleck and Kates 2001, Chapter 6 for supporting citations). 37. Most outrageously of all, SF quotes a claim from David Hemenway that "all attempts at external validation [have] reveal[ed] it to be a huge overestimate," when in fact every attempt at external validation has confirmed our estimates of DGU frequency. Our survey figures were not only completely consistent with hospital data on numbers of persons medically treated for gunshot wounds, and estimates of the frequency of sexual assaults and other crimes, but have also been consistently confirmed by the results of other professionally conducted national surveys of representative samples of the U.S. adult population. By 2001 there were at least 20 such surveys that all indicated huge numbers of DGUs each year, exceeding the number of crimes in which offenders used guns (Kleck and Kates 2001, Chapter 6). 38. 6/22-28. SF criticizes me for concluding that LCM use does not affect rates of fire in mass shootings because some shooters were not shooting continuously. My conclusion did not rely in any way on an assumption that any shooters fired continuously, or that a constant rate of fire was maintained. My data pertained to average rates of fire throughout the period of firing, and I assume as a matter of course that rates of fire during any given brief segment of time within those periods were sometimes higher than average and at other times lower than average — including periods when there was no firing at all. This, however, has no bearing on whether any mass shooters have ever needed to fire any more rapidly than these average rates in order to harm as many victims as they did, which is the relevant question. The policy -relevant fact is that all mass shooters for whom we had the relevant information regarding rates of fire had ample time to fire as many rounds as they did, even if they had needed to take a few more seconds to change magazines. Whether the shooters fired faster during some subperiods than they averaged over the whole shooting period is irrelevant. 39. SF brings up a red herring in this connection — stating that the rates of fire that I reported do not approximate how fast a mass shooter with an LCM "can fire" (7/4, emphasis added). The theoretical upper -13- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Document45-2 Filed02/10/14 Page14 of 20 limit rate of fire that such a shooter might hypothetically attain is completely irrelevant to the issue of how fast real-world mass shooters actually had to shoot in order to inflict all the injuries and deaths they inflicted, for the simple reason that no real mass shooter has ever come even remotely close to this maximum possible rate of fire. Eyewitnesses have repeatedly described mass shooters as firing deliberately and taking careful aim at specific individual victims, rather than firing as fast as they could. The high percentage of wounded victims who die (reaching 100% in some incidents) also supports the view that mass shooters shoot carefully, aiming for vital areas of the victim's body, rather than firing rapidly and inaccurately. In short, the rates of fire that mass shooters could sustain is irrelevant to the rate they actually do sustain, and it is only the latter that can affect the number of casualties actually inflicted. 40. SF mischaracterizes my positions on when LCMs are likely to affect the number of casualties, claiming that I asserted that this is true "only where the shooter possesses only one gun and only one LCM" (7/11-12). This is false, since I explicitly stated that LCM use also could affect the casualty count if there were bystanders willing to tackle the shooter when he was reloading. Under that circumstance, use of an LCM prior to the bystander intervention could affect the number of rounds fired, and thus the number of victims hurt before the magazine change (Kleck Declaration, 6/6-10). It is dubious that SF could have honestly misunderstood this point, since I made it quite clearly: "One circumstance in which use of an LCM could affect the number of casualties even if the shooter possessed multiple guns or multiple magazines is if there were bystanders willing to tackle the shooter during his attempt to change magazines or firearms, the use of an LCM prior to that time could affect the number of victims shot, since the killer could have fired more rounds before needing to reload or switch guns." 41. Consequently, it is especially outrageous for SF to claim that "[Kleck's] narrow criteria for when an LCM matters exclude the single incident where he admits that a shooter was tackled while reloading— that is, where actual events proved that magazine capacity mattered—because that shooter had three guns and three LCMs," (SF 7/23-25), a reference to the 1998 Springfield, Oregon shooting by Kip Kinkel. My criteria obviously did not exclude this incident, since I had carefully explained why LCM use might matter -14- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Document45-2 Filed02/10/14 Page15 of 20 in certain rare circumstances even if the shooter possessed multiple guns or multiple magazines. Thus, SF misstated my position, creating a false impression of some contradiction or inconsistency in my work. I also noted, however, just how extremely rare this circumstance is in mass shooting incidents. It is known to have occurred just two or three times in the past 30 years. 42. SF also made a blatantly false claim about shootings I had supposedly missed, presumably for the sake of suggesting that my work was sloppy. SF cites two cases of single -gun shootings that SF alleged were mass shootings that I "missed" (7/16-20). These cases, occurring in 2013 in Hialeah, FL and Herkimer, NY were not mass shootings according to the definition I was using, and therefore did not belong in my dataset. The Mother Jones dataset on which SF relied, and the news stories the magazine cited as sources, indicated that both incidents involved six victims shot. I had clearly stated that my dataset encompassed shooting incidents in which more than six victims were shot, not including the shooter himself (KIeck Declaration 4/17). Their claims that these single -gun incidents belonged in my dataset were plainly wrong. 43. SF also suggests that I believed, or somehow relied on the belief, that "it is just as fast to switch guns or magazines as it is to keep shooting with the same magazine" (SF 7/21-22). This too is false, as I never stated, hinted at, or assumed any such thing. Instead, I made a more subtle and far more relevant observation about mass shootings: that the 2-4 seconds it takes to change detachable magazines on semi- automatic firearms does not slow the actual rates of fire maintained by actual mass shooters. It is true that a hypothetical shooter attempting to fire as fast as possible would take 2-4 seconds longer to switch magazines and resume firing than it would to keep shooting with the same magazine, but this is completely irrelevant to actual mass shootings that have occurred in the past or are likely to occur in the future, since actual mass shooters do not fire anywhere near as fast as they possibly can, and if they did, they would not fire nearly as accurately as they unfortunately do. 44. SF claims to have identified an inconsistency between my Declaration in a New York case, and my Declaration in the SF case (8/17). There is no inconsistency. I wrote the New York Declaration in -15- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Document45-2 Filed02/10/14 Page16 of 20 April of 2013 before I had conducted my study of mass shootings in the period 1994 -July 2013. I stated at that time that I knew of just one mass shooting in which bystanders had intervened while the shooter was reloading — a Long Island incident that 1 had studied for a brief analysis of mass shootings published in my 1997 book, Targeting Guns, which covered only cases that occurred between 1984 and 1993. My statement in the NY Declaration was exactly correct — it was indeed the only such case that I knew of as of April 2013. I began my analysis of the 1994-2013 cases three months later, in July of 2013, at which point I discovered one, and possibly two, more such cases — the 1998 Springfield Oregon case and possibly the Tucson shooting in which Gabrielle Giffords was shot. Rather than this being an inconsistency, it is simply a reflection of the growth of my knowledge — I knew of one relevant case in April 2013, and learned of one or two more by July 2013. The addition of one or two more such cases, however, does not alter the conclusion that incidents in which bystanders subdue a mass shooter while he is trying to reload are extremely rare, as only two or three cases are known to have occurred in the past 30 years. 45. SF quibbles with my assertions about civilian marksmanship in DGU incidents, but seem unaware of the implications of their own arguments (10/21-22). They note that the 37% hit rate I cited in my Declaration was a per -incident rate, not a per bullet hit rate (just as I accurately noted in the Declaration). The per bullet hit rate, however, will necessarily be even lower since at least some incidents involve multiple bullets being fired, meaning that the denominator in the hit rate (number of bullets fired) would be even larger, and the per bullet hit rate even lower, than the per -incident rate. This in turn implies that lawful defenders would need even more rounds to achieve a given number of hits, i.e. be in even greater need of larger capacity magazines. SF's comment, then, supports the Plaintiffs' case rather than undercutting it. 46. SF states that "even if ... a civilian is likely to miss with 63% of his bullets, he is still likely to hit a target with a legal 10 -round magazine" (10/25-27). This is misleading because, as noted in the previous paragraph, the per bullet hit rate is lower than 37%, so civilian defenders would miss with more than 63% of their rounds, by SF's own reasoning. -16- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Document45-2 Filed02/10/14 Page17 of 20 I declare under penalty of perjury that the foregoing is true and correct. Executed within the United States on February 9, 2014. 4f ij Cary Kteck : -17- Case5:13-cv-05807-RMW Document45-2 Filed02/10/14 Page18 of 20 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION LEONARD FYOCK, SCOTT ) CASE NO: CV13-05807 RMW HOCHSTETLER, WILLIAM DOUGLAS, ) DAVID PEARSON, BRAD SEIFERS, and ) ROD SWANSON, ) CERTIFICATE OF SERVICE ) Plaintiffs, ) ) vs. ) ) THE CITY OF SUNNYVALE, THE ) MAYOR OF SUNNYVALE, ANTHONY ) SPITALERI, in his official capacity, THE ) CHIEF OF THE SUNNYVALE ) DEPARTMENT OF PUBLIC SAFETY, ) FRANK GRGURINA, in his official ) capacity, and DOES 1-10, ) ) Defendants. ) ) IT IS HEREBY CERTIFIED THAT: I, the undersigned, am a citizen of the United States and am at least eighteen years of age. My business address is 180 E. Ocean Blvd., Suite 200, Long Beach, California, 90802. I am not a party to the above -entitled action. I have caused service of SUPPLEMENTAL DECLARATION OF GARY KLECK IN SUPPORT OF PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION on the following party by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them. Roderick M. Thompson Anthony P. Schoenberg Rochelle L. Woods Farella Braun + Martel LLP 235 Montgomery Street, 17`h Floor San Francisco, CA 94104 aschoenberg@fbm.com I declare under penalty of perjury that the foregoing is true and correct. Executed on February 10, 2014. /s/ C. D. Michel C. D. Michel Attorney for Plaintiffs 18 Case5:13-cv-05807-RMW Document45-2 Filed02/10114 Pag e19 of 20 EXHIBIT "F" Case5:13-cv-05 W Document45-2 Filed02/10/14 Page20 of 20 Assault Ries and Assault Weapons 125 yid p',,i wounded. There is usually much less information available from press accounts about incidents involving fewer victims, and it would be harder to argue for the significance of large magazine capacity in connection with cases with fewer victims, and thus presumably fewer shots fired. Of the fifteen mass shootings, no more than four involved weapons banned under any existing federal or state AW bans: the Gian Luigi Ferri case, which involved two Intratec DCO pistols; the Joseph Wesbecker case, involving a gun loosely described as an "AK -47," which might fall within the banned category; the Patrick Purdy case, which involved a Model 56S variant of an AKM-47; and the James Huberty incident, which involved a semiautomatic Uzi carbine. In all four of these cases the killer was also armed with other, non -AW guns, and it is therefore not clear how many of the wounds were inflicted with AWs. For example, it is not known if any of Huberty's victims were killed with the Uzi because he also used an ordinary Browning pistol, which used the same caliber am- munition (9 mm) as the Uzi and at least half of the dead victims were killed with a shotgun. In eleven of the seventeen mass shootings, the killer was arrned with multiple guns, and in at least five cases it was known that the killers reloaded their guns at least once (Ferguson, Hen- nard, Purdy, Sherril, and Huberty). Both of these facts support the asser- tion that in these cases the killer did not require a single gun with a large magazine to kill or wound so many people. For those incidents where the number of rounds fired and the duration of the shooting were both reported, the rate of fire never was faster than about one round every two seconds, and was usually much slower than that. Witnesses commonly reported that the killers went about their dead- ly work in a "calm," "matter-of-fact," or "almost methodical" fashion, taking careful aim at victims and seemingly taking their time (e.g., Los Angeles Times, 19 July 1984, p. 1, 18 January 1989, p. 3; Washington Post, 15 September 1989, p. Al; Houston Post, 17 October 1991, p. A-1). For exam- ple, Joseph Wesbecker, who killed seven people and wounded seventeen over a period of thirty minutes, "showed extreme "shooting discipline," .. firing directly at his human targets and taking few random shots" (Louisville Courier Journal, 15 September 1989). None of the mass killers maintained a sustained rate of fire that could not also have been maintained --even taking reloading time into account—with either multi- ple guns or with an ordinary six -shot revolver and the common loading devices known as "speedloaders." Further, there is no evidence that these killers could not have taken more time than they actually did. Inflicting the number of casualties in even these extreme and rare cases did not require the large -capacity magazines and/or high rate of fire provided by either AWs or by semiautomatic guns in general. It therefore is highly unlikely that shootings with fewer rounds fired and fewer vic- EXHIBIT D Case5:13-cv-05807-RMW Documentll Filed12/23/13 Pagel of 25 C. D. Michel - S.B.N. 144258 Clinton B. Monfort - S.B.N. 255609 Sean A. Brady - S.B.N. 262007 Anna M. Barvir - S.B.N. 268728 MICHEL & ASSOCIATES, P.C. 180 E. Ocean Boulevard, Suite 200 Long Beach, CA 90802 Telephone: (562) 216-4444 Facsimile: (562) 216-4445 Email: cmichel@michellawyers.com Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION LEONARD FYOCK, SCOTT CASE NO: CV13-05807 RMW HOCHSTETLER, WILLIAM DOUGLAS, DAVID PEARSON, DECLARATION OF MASSAD BRAD SEIFERS, and ROD AYOOB IN SUPPORT OF MOTION SWANSON, FOR PRELIMINARY INJUNCTION Plaintiffs vs. THE CITY OF SUNNYVALE, THE MAYOR OF SUNNYVALE, ANTHONY SPITALERI in his official capacity, THE CHIEF OF THE SUNNYVALE DEPARTMENT OF PUBLIC SAFETY, FRANK GRGURINA, in his official capacity, and DOES 1-10, Defendants. 1 DECLARATION OF MASSAD AYOOB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentll Filed12/23/13 Page2 of 25 DECLARATION OF MASSAD AYOOB 1. I, Massad Ayoob, am not a party in the above -titled action. I am over the age of 18, have personal knowledge of the facts and events referred to in this Declaration, and am competent to testify to the matters stated below. 2. I have been a competitive handgun shooter since the late 1960s, a published writer in the field of defensive firearms since 1971, and a firearms instructor since 1972. My resume is attached. I have served for more than thirty years each as handgun editor for Guns magazine and law enforcement editor for American Handgunner magazine. I served for 19 years as chair of the Firearms and Deadly Force Training Committee for the American Society of Law Enforcement Trainers, and have served for ten years on the advisory board of the International Law Enforcement Educators and Trainers Association. I have served as an expert witness on firearms, firearms training standards, deadly force training standards, dynamics of violent encounters, and related subject matter areas since 1979. I have also been an instructor in disarming and firearm retention (i.e., the countering of a disarming attempt) since 1980 and became a trainer of other instructors in those disciplines in 1990. 3. In my role as a self-defense and weapons expert, including as an expert witness, I have researched incidents of defensive gun uses by law-abiding citizens, including by both private citizens and law enforcement officers. My opinions about defensive guns uses provided herein are based, in part, on the information I have learned during such research. Ten Round Magazine Limit: Disparate Impact on Law -Abiding Citizens 4. Limiting the law-abiding citizen to a magazine of ten rounds or less will clearly limit their ability to protect themselves from violent criminals in certain situations. Such limits on magazine capacity are likely to impair the ability of citizens to engage in lawful self-defense in those crime incidents necessitating that 2 DECLARATION OF MASSAD AYOOB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentll Filed12/23/13 Page3 of 25 the victim fire many rounds in order to stop the aggressive actions of offenders. 5. An illustrative, real-world example is the case of Susan Gonzalez. She and her husband were attacked by two intruders within their home one night. The attackers shot both of them multiple times, but she was able to escape to their bedroom where she located her husband's semi-automatic pistol, while her husband bravely physically fought the attackers off into the front room. She entered the room where the attackers were struggling with her husband, and, not wanting to shoot her husband, discharged three warning shots in the air, hoping the attackers would flee. They did not. 6. One attacker charged toward her, causing her to flee back to the bedroom. From an opening in the bedroom she could see the attacker lying in wait for her in the kitchen. So she used her knowledge of the house to exit the bedroom from and approach the attacker from behind via another door leading to the kitchen. She pointed the pistol at the attacker and discharged seven rounds in his direction, gravely wounding him, but not immediately killing him. 7. The wounded attacker was still able to exit the house aided by his accomplice. The other attacker reentered the house and demanded Mr. Gonzalez give him keys to an automobile to escape. During his search for keys in the bedroom he located Mrs. Gonzalez who was out of ammunition. He put the gun to her temple and demanded the keys, which she gave him. 8. Fortunately, the attacker decided to spare Mrs. Gonzalez's life, but he could have just as easily pulled the trigger. Had she had more rounds in her magazine, maybe she would not have had to leave her fate to chance. It is impossible to say how many more cases where victims lost (or almost lost, as in Mrs. Gonzalez's case), due to having an insufficient amount of ammunition readily 3 DECLARATION OF MAS SAD AYOOB Case5:13-cv-05807-RMW Documentll Filed12/23113 Page4 of 25 available in a self-defense firearm.' 9. The published account of this shooting has Mrs. Gonzalez firing three shots into the ceiling, then seven at the homicidal intruder, and then running dry. This would indicate only ten cartridges at her disposal. The gunfight occurred during the ten-year period when the Federal "high capacity magazine ban" was in force. The Ruger 9mm pistol she used, designed to hold fifteen cartridges in the magazine and one more in the firing chamber, was sold during that ten year period of that ban with magazines which could only hold ten rounds. In such a situation, five more shots can make the difference between neutralizing the murderous threat, and being rendered helpless with an empty guns at the hands of a law -breaking, homicidal, heavily armed felon. 10. It is difficult to say exactly how many private citizens have actually fired more than ten rounds in a self-defense shooting, because the amount of rounds fired in self-defense shoots, from my experience in researching such incidents, is very often an omitted fact in written accounts of such defensive gun uses. Oftentimes the accounts just say "multiple shots fired." That could mean more or less than ten, it just cannot be known. This does not seem to be the case, however, with shootings involving police officers, for which, generally the number of shots that were fired is documented. In my experience researching such shootings, officers often fire more than ten rounds. And, cases where an individual officer fired less than 10 rounds, but there were multiple officers shooting, can be fairly characterized as involving more than ten rounds if the multiple officers involved fired over ten rounds in aggregate. 11. Officer -involved shootings are relevant in evaluating private citizen shootings, for the simple reason that private citizens arm themselves for protection ' Robert A. Waters, Guns Save Lives: True Stories of Americans Defending Their Lives with Firearms 149-59 (2002). 4 DECLARATION OF MASSAD AYOOB Case5:13-cv-05807-RMW Documentll Filed12/23/13 Pages of 25 against the exact same criminals the police are armed to deal with. Tim Gramins of the Skokie, Illinois police department was in a shootout with an armed robber whose car he had pulled over. The gunman came out shooting. The gunman was armed with two semiautomatic pistols, one on his person and one snatched from his car, both of which he fired during the gun battle. He also had in his possession a semiautomatic rifle in his car, which he did not deploy. Gramins fired 33 rounds before the gunman, now fatally wounded, stopped firing. The suspect had absorbed 16 hits by the time he was neutralized, and the officer had been forced to reload twice. The officer was armed with a Glock Model 21 .45 caliber pistol, loaded with a 13 round magazine and a fourteenth in the firing chamber. The officer was down to the last few cartridges in his last magazine at the time he finally won the gunfight. Gramins was wounded in the shooting. As a result of this incident, he now carries a higher -capacity handgun with more spare magazines.2 12. While, as mentioned, the number of rounds fired in a self-defense shoot involving a private citizen is usually not documented, there are nevertheless various accounts of private citizens discharging more than ten rounds during a criminal attack. A South Carolina gun store owner who lived in the rear of his shop was awoken by three men, at least one of them armed, crashing a van into his store. When going to investigate, one of the robbers yelled to another to kill him, so the owner opened fire, discharging thirty rounds, hitting all three attackers, mortally wounding one and causing the rest to flee. 13. There is also the account of Travis Dean Neel. While sitting in a traffic jam behind an officer with a car pulled over, an occupant emerged from the 2 Charles Remsberg, Why one Cop Carries 145 Rounds of Ammo on the Job, Police One http://www.policeone.com/patrol-issues/articles/6199620-Why-one-cop-carries-145-r ounds-of-ammo-on-the-job/ last updated April 17, 2013). 5 DECLARATION OF MASSAD AYOOB Case5:13-cv-05807-RMW Documentll Filed12/23/13 Page6 of 25 detained vehicle and opened fire on the officer. Neel responded by retrieving his pistol with three magazines from his backseat and opened fire on the assailant, which resulted in him being fired upon and an ensuing gunfight, during the course of which he prevented the assailants from "finishing off' the officer and (with assistance from an off-duty police officer who joined him in the gunfight with his own handgun) from car jacking a woman to get away, which may have saved that woman's life. Despite Neel using all three of his fifteen -round magazines, and the several shots fired by the off-duty officer, the assailants were still able to flee, but could just as easily decided to continue their attack and overcome Neel.' 14. Ronald Honeycutt was delivering pizzas when approached by a man with a gun from behind. He turned and fired when he saw a gun in the man's hand, discharging all of his magazine's fifteen rounds, which still did not immediately stop the threat, as the attacker remained upright with the gun pointed at him. But the attacker eventually succumbed to his wounds before being able to rack a round into the firing chamber of his pistol, which he had forgotten to do, and is probably why he was pointing the gun at Honeycutt but never discharged a single round.4 15. Additionally, in California, consider the well-documented multiple gunfights with armed robbers experienced by Los Angeles watch shop owner Lance Thomas.5 More than one of his five shooting incidents required him to fire more than the Sunnyvale ordinance would allow to be in any one handgun. In one of those incidents, Thomas had to fire nineteen shots before the last of his multiple 3 Robert A. Waters, The Best Defense: True Stories of Intended Victims Who Defended Themselves with a Firearm, 23-40 (1998). 4 Chris Bird, Thank God I Had A Gun: True Accounts of Self -Defense 251-274 (2007). 5 Gun shop owner shoots, kills man during attempted robbery, WIS TV (Aug. 9, 2012, 7:54 AM), http://www.wistv.com/story/19236842/gun-shop-owner-shoots-kills-man-during-atte mpted-robbery (last updated Aug. 19, 2012, 8:22 AM). 6 DECLARATION OF MASSAD AYOOB Case5:13-cv-05807-RMW Documentll Filed12/23/13 Page7 of 25 opponents ceased attempting to murder him.' 16. Thomas' strategy was to stage multiple loaded handguns every few feet in his workspace. He could do this, as a sole proprietor with a small shop, a workspace closed to the public, and with buzz -in entry. A pair of brothers used the same strategy in defending themselves against two violent career criminals robbing their Richmond, Virginia jewelry store. They went through multiple firearms staged throughout the store placed in anticipation for such an event.' The strategy of staging multiple firearms employed by these shopkeepers is a unique circumstance, however. It would not be practical or safe for most shopkeepers or for homeowners, due to the danger of unexpected children wandering behind the counter or unexpectedly arriving at the given home. Thus, most private citizens could not be expected to have multiple handguns in multiple locations in their home or on their person in order to engage in a defensive gun use. 17. The homeowner who keeps a defensive firearm and is awakened in the night by an intruder is most unlikely to have time to gather spare ammunition. The sudden and unpredictable nature of such attacks, and their occurring in relatively confined spaces, generally do not permit gathering multiple firearms or magazines. Ideally, one hand would be occupied with the handgun itself, and the other, with a telephone to call the police. And, assuming they even had time for a magazine change, most people do not sleep wearing clothing that would allow them to stow spare magazines, etc. on their person. They would have only what was in the gun. 18. Most plainclothes police officers do not find it practical to carry multiple handguns, let alone private citizens. Any suggestion that private citizens 6 See http://articles.latimes.com/1992-02-21/local/me-2663_1_watch-shop-owner; http://backwoodshome.com/blogs/MassadAyoob/2012/12/29/why-good-people-need- semiautomatic-firearms-and-high-cap acity-magazines-part-i/ ' Id. 7 DECLARATION OF MASSAD AYOOB Case5:13-cv-05807-RMW Documentll Filedl2/23/13 Page8 of 25 simply get more guns or more ammunition feeding devices would, for the reasons stated above, be impractical. 19. Criminals bent on causing harm, on the other hand, even assuming they were impeded from obtaining magazines holding over ten rounds due to the ordinance, could simply arm themselves with multiple weapons, and often do. 20. Criminals have time to assess and plan shootings, whereas victims do not. Whitman, the Texas Tower mass murderer, literally brought a large box of rifles, handguns, a shotgun and ammunition to his sniper perch.8 Harris and Klebold had four firearms between them at Columbine.9 Holmes in Aurora brought rifle, shotgun, and pistol into the theater.10 Hassan was armed with a pistol and a revolver at the Fort Hood." Lanza entered the elementary school in Newtown, Connecticut armed with a rifle and two pistols, leaving a shotgun in his car.12 The mass murderer Cho entered Virginia Tech armed with two pistols and a backpack full of magazines.i3 21. None of these murderers' victims had planned to repel an attack by a perpetrator with multiple firearms. 22. The likelihood of the mass murderer arriving on scene with multiple 8 http://www.texasmonthly.com/topics/ut-tower-shooting 9 http://extras.denverpost.com/news/shot0427a.htm 10 http://www.latimes. com/news/nation/nationnow/la-na-nn-dark-knight-shooting-2012 0720,0,2147749.story#axzz2nDkU7CW B 11 http://www.nydailyncws.com/news/national/ft-hood-shooter-nidal-hasan-private-lega lly-bought-pistol-military-weapon-rampage-article-1.414799 12 http://www.cnn.com/2012/12/18/us/connecticut-lanza-guns/ 13 Virginia Tech Review Panel, Report of the Review Panel at pg. 89 available at,http://www.governor.virginia.gov/tempcontent/techPanelReport-docs/FullReport.p df 8 DECLARATION OF MASSAD AYOOB Case5:13-cv-05807-RMW Documentll Filed12/23/13 Page9 of 25 firearms also largely negates the theory that with fewer rounds in the gun, the killer could be more easily disarmed and subdued by unarmed citizens when he first ran empty, before he could reload. Hassan, Holmes, Lanza, or Cho simply could have drawn a second (or third) gun that they had on their persons and shot whoever attempted to grab the empty one. 23. The virtuous citizen, by contrast, cannot practically be expected to have accessible that many guns or that much ammunition at a moment's notice. The victimized citizen is the one who is, therefore, most deleteriously impacted by the magazine capacity limitation. If he or she must use the gun to protect self and family, they will most likely have only the ammunition in the gun with which to fend off determined, perhaps multiple, attackers. 24. Virtuous citizens buy their guns to protect themselves from the same criminals police carry guns to protect the citizens, the public, and themselves from. Therefore, armed citizens have historically modeled their choice of firearms on what police carry. The vast majority of California law enforcement agencies, including those in the Bay Area, carry pistols with double -stack magazines whose capacities exceed those of the Sunnyvale ordinance. While on -duty police are exempt from the Ordinance, it is unclear to me whether off duty officers are. 25. The on -duty, uniformed police officer generally will be armed with a service pistol containing a detachable magazine holding more than ten rounds, and generally two spare magazines holding more than ten rounds on the uniform belt. He or she will normally be wearing body armor, have immediate access to a loaded shotgun and/or loaded patrol rifle with magazines holding more than ten rounds in the patrol car, and will have instant radio access to fellow officers and dispatch if help is needed. 26. The off-duty officer and the law-abiding citizen alike are not likely to have that volume of spare ammunition on their person or elsewhere readily accessible. They are not likely to be wearing body armor, nor to be in reach of a 9 DECLARATION OF MAS SAD AYOOB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentll FiUed12/23/13 Page10 of 25 rifle or shotgun. Their only communication to potential backup will be by phone, relayed through Police Dispatch to responding officers. Thus, for them, the ability to have a pistol already loaded with a significant amount of ammunition is all the more important. 27. It takes even a world champion speed shooter a full second to reload with a fresh magazine. A highly skilled police officer or competitive shooter may be able to accomplish a reload in two seconds. Most people take considerably longer; especially someone who is under the mental duress typically experienced during an attack. Changing a magazine is a fine motor skill, the type of skill which degrades severely in human beings under stress due to vasoconstriction (loss of blood flow to the extremities) and also due to tremors induced by internally -generated adrenaline (epinephrine). This is a well-known physiological reaction that has been in the medical literature and training literature for a century or longer, defined as "fight or flight" response by Dr. Walter Cannon at Harvard Medical School before World War I. 28. By contrast, simply pulling the trigger again on a pistol that still has more ammunition in it can be accomplished in a fraction of a second. Based on my experience in self-defense scenarios, fractions of seconds can mean the difference between the victim successfully repelling an attacker and the victim being subdued. Thus, a magazine change for the person being attacked could be the difference between life and death.14 The same, however, is not generally true for the attacker. The loss of time for a magazine change is generally of little consequence for the attacker. This is because it is the attacker who gets to choose when, where, how, and whom to attack. So the attacker is not burdened by the surprise and shock factor that the victim is, and, as explained above, is generally prepared for the 14 http://reason.com/archives/2013/01/16/the-threat-posed-by-gun-magazine-limits 10 DECLARATION OF MASSAD AYOOB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case5:13-cv-05807-RMW Documentll Filed12/23/13 Page11 of 25 confrontation with large amounts of arms and ammunition. This is demonstrated by the multiple mass shootings where the attacker made magazine changes without being subdued. The most illustrative example is the Virginia Tech shooting, where the attacker carried with him seventeen magazines for his two semi-automatic pistols, from which he fired 174 rounds.15 At least five of those magazines had a capacity of only ten rounds and would be legal under the challenged ordinance.16 While it cannot be said exactly how many magazine changes he made during what was the deadliest mass shooting in the country's history, based on the number of rounds fired and the fact that authorities found seventeen empty magazines at the scene, he had to have made several reloads." 29. Supporters of the magazine capacity limitation will undoubtedly point to some firearm expert who is comfortable with an eight- or nine -shot pistol, or even a five- or six -shot revolver. It should be noted, however, that the operative term there is "expert." The individual who has spent a lifetime training in shooting, and may fire hundreds or even thousands of shots on the range per month, has developed a level of skill and confidence that is not practical to expect from the average police officer, let alone the average law-abiding citizen who keeps a firearm in the home or on his person for protection of self and family. 30. I would also be remiss to fail to also consider the needs of retired law enforcement officers and corrections officers, and the families of such personnel, whether retired or still employed in the justice system. It is common for violent criminals to threaten revenge on the families of law enforcement personnel, and it is my experience that these people more often than not keep firearms at home for defensive use by their spouses and other responsible family members, should such is Virginia Tech Review Panel, Report of the Review Panel at pg. 92. 16 Id. 17 Id. 11 DECLARATION OF MASSAD AYOOB Case5:13-cv-05807-RMW Documentll Filed12/23/13 Page12 of 25 threats of vengeance be acted out. For the reasons described above, the Sunnyvale ordinance puts those innocent people at an unfair tactical disadvantage. Disparate Impact on the Disabled 31. A particular subset of law-abiding citizens who are disparately, negatively impacted by the Sunnyvale ordinance is the physically disabled. This is true of many categories of the physically challenged. 32. Over the last twelve years, we have seen many war veterans joining the amputee community. Those who have lost fingers or a hand will have great difficulty reloading an empty gun if a ten -round magazine does not prove sufficient to defeat an attacker. Work-related injuries such as carpal tunnel syndrome can greatly slow ability to reload. So can many of the infirmities of age: rheumatism, arthritis, bursitis, etc. 33. The wheelchair-bound individual, and many more mobility -challenged individuals (back issues, ankle issues, knee issues, etc.), cannot run to cover to reload. They will be caught in the open if they have to reload in a fight with one or more armed criminals, and thus will become totally helpless as soon as their ordinance -mandated ten -shot magazine is depleted. 34. Thus, in conclusion, study of events in the real world indicates that the Sunnyvale ordinance as related to magazine capacity can be expected to have little, if any, effect in reducing casualties due to intentional mass murder. However, law-abiding citizens, off-duty and retired criminal justice personnel, families of criminal justice personnel, recipients of death threats, stalking victims, and people working in places of business prone to armed robbery, will be severely disadvantaged by this ordinance in terms of their ability to lawfully protect themselves and others. This impact will be particularly severe upon members of such groups who are physically disabled. 12 DECLARATION OF MASSAD AYOOB Case5:13-cv-05807-RMW Documentll Filed12/23/13 Pagel3 of 25 I declare under penalty of perjury that the foregoing is true and correct. Executed within the United States on December 22, 2013. 13 DECLARATION OF MASSAD AYOO13 Pages 14-21 (Ayoob Ciriculum Vitae) Intentionally Omitted