IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK RICHMOND BORO GUN CLUB, INC., et al., ) ) Plaintiffs ) ) v. ) CIVIL NO. CV-92 0151 ) JUDGE RAGGI CITY OF NEW YORK, NEW YORK, et al., ) MAGISTRATE CHREIN ) Defendants ) SUPPLEMENTAL AFFIDAVIT OF PAUL H. BLACKMAN, Ph.D. I, Paul H. Blackman, Ph.D., hereby swear or affirm as follows: 1. My name is Paul H. Blackman, Ph.D., and my address is NRA Institute for Legislative Action, 1600 Rhode Island Avenue, N.W., Washington, D.C. 20036. 2. My experience and qualifications are detailed in my previous affidavit filed in this case, Plaintiffs' Exhibit 9, which was filed in support of the motion for a preliminary injunction. I make the following further statement in opposition to defendants' motion for summary judgement. 3. In response to a question by me as to whether there are "any noticeable trends" in the use of some guns called "assault weapons" against law enforcement officers during the 1980s, J. Harper Wilson, Chief of the Uniform Crime Reporting Section of the Federal Bureau of Investigation responded, "No." [Letter of Paul H. Blackman to J. Harper Wilson, July 20, 1990; letter of J. Harper Wilson to Paul H. Blackman, September 5, 1990.] 4. 4. Nationally, shotguns are rarely involved in homicides, and involvement is declining. While shotguns in general were involved in an average of 1627 reported criminal homicides annually nationally each year from 1979-1981, out of an average figure of 22,340 criminal homicides (7.3%), that figure dropped to an average of 1177 (5.1%) in the three most recent years (1989-1991), when the total average number of homicides was put at 23,213. Survey research of felon preference in firearms suggests that felons prefer sawed-off shotguns to ordinary ones. By their nature, revolving-cylinder and semi-automatic shotguns are less amenable to such alteration. [James D. Wright and Peter H. Rossi, Armed and Considered Dangerous: A Survey of Felons and Their Firearms (New York: Aldine de Gruyter, 1986), p. 95.] 5. Rifle use in homicide has also declined. Rifles have gone from being reported used in an average of 1056 reported criminal homicides annually nationally from 1979-1981 (4.7%) to reported use in an average of just 784 (3.4%) for the past three years, 1989-1991. [FBI Uniform Crime Reports, Crime in the United States, 1983 (Washington, D.C.: U.S. Department of Justice, 1984), pp. 10 and 43, and Crime in the United States, 1991 (Washington, D.C.: U.S. Dept. of Justice, 1992), pp. 17 and 58.] 6. In sum, reported rifle and shotgun use in homicide has fallen from 12.3% to 8.5% during the 1980s. And, during the period of 1987 to 1991, for which Commissioner Brown, in his affidavit, claimed an increase in "assault weapon" use, reported handgun use in homicide rose from 44% to 53%, with reported rifle and shotgun use falling two percentage points. 7. Available data suggest that rifles are the third choice of the three general types of firearms used in crime, far outdistanced by handguns, and significantly outdistanced by shotguns. [Wright and Rossi, Armed and Considered Dangerous, p.95; Criminal Justice Statistics Association, Futures in Crime Analysis: Exploring Applications of Incident-based Crime Data, Bureau of Justice Statistics, U.S. Department of Justice, 1991, p. 19.] The fact that rifles accounted for 17% of the firearms traced in the Cox Newspaper study of BATF tracing data, while shotguns accounted for only 13% is just further evidence of the unrepresentativeness of BATF tracing data as a guide to determining the firearms preferences of criminals. 8. Most recently, criminology professor Gary Kleck wrote: "Contrary to widespread claims, however, assault weapons are not the 'preferred' firearms of criminals. I know of 24 reports on the prevalence of these weapons among guns seized by the police; in 23 of these cases, police records indicate that criminals almost never use them to commit crimes. Virtually all of the studies show that only 0 to 4 percent of confiscated guns are assault weapons. Since about 12 percent of violent crimes involve guns, this means that assault weapons are used less than l/2 of 1 percent of the time." [Gary Kleck, "Assault Weapons Aren't the Problem," New York Times, September 1, 1992, p. A-17.] 9. Contrary to the assertions in the affidavit of Commissioner Brown, the Cox news organization's analysis of data from the Bureau of Alcohol, Tobacco & Firearms is not recent, does not show that assault weapons "comprised approximately 0.5 percent of the guns in circulation," does not show that these guns represented "10 percent of all guns used in connection with the commission of a crime," does not show that the guns comprised "12 percent of all guns used in narcotics-related crimes," and does not show that "Assault weapons were thus 20 times more likely to be used for criminal activity than conventional weapons." [Affidavit of Lee P. Brown, Police Commissioner of the City of New York, paragraph 4.] Even if the 1989 Cox newspaper study did as Commissioner Brown erroneously asserts, the data are undermined by the fact that nearly one-quarter of the BATF traces examined by the Cox reporters involved handguns, which are not the subject to Local Law 78. 10. Contrary to Commissioner Brown and Cox newspaper reports, "assault weapons" did not, and do not, comprise only 0.5 percent of the guns in circulation. While the Cox newspapers certainly made that assertion, claiming there were only about one million "assault weapons" in America [Cox Newspapers, Firepower: Assault Weapons in America, 1989, p. 1], in calling the Army "a Major Supplier of Assault Guns," Cox noted there were an "estimated 1.5 million M-1 'Garand' semiautomatic rifles in private hands." [Ibid., p. 10.] Cox was thus asserting there were one million "assault weapons" of which 1.5 million were one particular model, an obvious impossibility. In fact, Smithsonian Institution firearms expert Edward Ezell estimated that there were 3.5 - 4 million firearms which could be designated "assault weapons" privately owned as of early 1989. [Testimony of Edward C. Ezell, to the Constitution Subcommittee. Senate Committee on the Judiciary, U.S. Senate, May 10, 1989.] Thus, even if all of the other assertions by Commissioner Brown were correct, the "20 times" figure would have to be divided by 3.5 - 4. But the other assertions by Commissioner Brown are not accurate. 11. Undermining Commissioner Brown's reliance on the Cox newspaper review of BATF data are BATF responses to the Cox material. BATF's initial "position on Cox Newspapers study of assault type guns" noted: "We do not necessarily agree with the conclusions of Cox Newspapers and need to express that all firearms trace requests submitted by law enforcement agencies are not crime guns and that the 42,000 traces examined are but a small percentage of all firearms recovered by law enforcement during the period." (Emphasis added.) [I'D LOVE TO CITE IT. WHAT THE HELL IS IT CALLED. ALL I HAVE IS A SHEET OF PAPER WITH BATF PRINTED IN. I HAVE SEEN A COVER SHEET FOR A FAX INCIDATING THAT IT CAME FROM BATF, BUT I DON'T HAVE A COPY OR KNOW WHAT THE RESULTING THING IS CALLED.] More recently, in a letter, BATF explained: "Many crimes may not be reported to the police, and traces requested by police are not always for guns that are used in crimes. Traces are sometimes submitted for firearms recovered by police investigating crimes where the guns were found but were not necessarily used to commit a crime reflected in the UCR. Accordingly, concluding that assault weapons are used in 1 of 10 firearm related crimes is tenuous at best since our traces and/or the UCR may not truly be representative of all crimes." [Letter from Director, Bureau of Alcohol, Tobacco and Firearms to U.S. Representative Richard T. Schulze, March 31, 1992; emphasis added.] 12. Only a tiny portion of guns seized by police are traced by BATF. For one thing, over half of police departments surveyed seldom or never used BATF, and only one-third of those who used BATF rated the experience useful in their investigations [James D. Wright and Peter H. Rossi, Weapons, Crime, and Violence in America: Executive Summary, National Institute of Justice, U.S. Department of Justice, November 1981, p. 23.]. For another, many firearms are too old to be traced, or their tracing is irrelevant to making a case. In addition, BATF is most apt to be able to trace successfully only newer firearms; so, in addition to police agencies being told by the news media that "assault weapons" are the weapons of choice of the most dangerous of criminals, their newness enhanced their traceability. To cite merely one example, at a time when the Los Angeles Police Department firearms expert was testifying before Congress and the California General Assembly that only about 3% of firearms seized by police were "assault weapons," the Cox news service was finding 19% of traced seized Los Angeles firearms to be "assault weapons." 13. I have reviewed the data obtained by the Cox Newspapers from the BATF, which provided the basis for the Cox Newspapers' conclusions relied upon by Commissioner Brown in his affidavit. In particular, I have analyzed in detail the data concerning the ten models of "assault weapons" which accounted for 90% of the traces of "assault weapons." 14. Most of the guns traced by BATF were not seized in connection with violent crime, and most guns used in violent crime were not traced by BATF, leaving their tracing data meaningless. If the four makes and models of handguns (MAC 10 and 11, TEC 9, and pistol versions of the Uzi) not covered by Local Law 78 are removed from the BATF tracing data on what Cox Newspapers concluded were the top ten makes and models of "assault weapons," seven models of rifles and shotguns (including Uzi carbines, so that Cox Newspapers' 10 really becomes 11 different models) account for less than 5% of the firearms traced -- and 70% of those traces related to three non- violent/non-drug-related categories: Miscellaneous; GCA (technical violations of federal gun laws); and Property (indicated primarily recovered stolen property -- i.e., ownership by the law-abiding taken by the lawless). By contrast, 65% of all the Cox/BATF traces fell into those three categories. 15. If the four models of handguns not covered by Local Law 78 are subtracted from the numbers of ten models of "assault weapons" in the Cox/BATF data, which were seized in connection with a violent crime, there were only 144 "assault weapons" seized in connection with violent crime during a period when nearly 500,000 gun-related violent crimes were reported to police. Of those 144, less than 5% were involved in organized crime investigations of any type. During a time period when there were well over one-million arrests for drug-abuse violations, fewer than 500 "assault weapons" of a type covered by Local Law 78 were traced in connection with narcotics cases -- and fewer than forty such guns were associated with organized crime investigations -- or roughly one for every 30,000 narcotics arrests. Again, the entire Cox/BATF data set indicates the worthlessness of tracing data for crime analysis: There was roughly one gun trace for every 200 narcotics arrests nationwide. The Cox/BATF data fail to indicate an organized crime or narcotic offender preference for "assault weapons." Overall, contrary to Commissioner Brown's assertion that 12% of narcotics-related guns are "assault weapons," less than 6% of the traced guns related to narcotics investigations were "assault weapons" sort covered by Local Law 78 -- and only about 8% of those narcotics investigations involved organized crime investigations. Given the vast overtracing of "assault weapons," as the Los Angeles data demonstrate, it would appear that long guns designated "assault weapons" by Local Law 78 are involved in narcotics investigations in the same, or even a lower, proportion to their ownership levels nationally. With nationwide discussions of gangs, narcotics, and violence, only 42 of the leading makes and models of "assault weapons" nationwide of a sort covered by Local Law 78, were traced to organized criminal involvement in violence or drugs. ______________________________________ PAUL H. BLACKMAN, Ph.D. ______________________________________ DATE WASHINGTON, DISTRICT OF COLUMBIA SUBSCRIBED and SWORN to before me by Paul H. Blackman, Ph.D., this ______ day of _______________, 1992. ______________________________________ Notary Public My Commission Expires:___________________________