Jan 9, 2014

Lawson on Epstein and “Classical Liberal Construction.”

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Gary Lawson has a review of Richard Epstein’s new opus, The Classical Liberal Constitution: The Uncertain Quest for Limited Government. The review focuses on Richard’s theory of constitutional interpretation, which Gary contends is not really interpretation grounded in originalism, but is construction Here is the abstract:

In The Classical Liberal Constitution: The Uncertain Quest for Limited Government (2013), Richard Epstein says that he “incorporates but goes beyond” originalist theory by calling for adjudication “in sync with” classical liberal theory political theory, which Professor Epstein claims underlies the Constitution. Without in any way detracting from the numerous virtues of this book, I argue that this is primarily a work of constitutional construction rather than constitutional interpretation. From the standpoint of interpretation, the background rules that best supplement the constitutional text are found in eighteenth-century fiduciary law rather than in classical liberal political theory, though the latter is relevant in many contexts. From the standpoint of adjudication, the Constitution implicitly prescribes a set of default rules, rather than reliance on political theory, to govern in the face of interpretative indeterminacy. Hence, Professor Epstein’s adjudicative scheme cannot be derived from interpretation of the Constitution but must result from constitutional construction.
And from the article:
Yet in barely more than a dozen pages,3 Professor Epstein manages to lay out a rigorous theory of constitutional interpretation, and it is on that aspect of the book that I will focus my attention. That narrow focus should not obscure the importance of the remaining 567 pages of the work, all of which merit careful attention and profound respect and any portion of which would justify a lengthy comment. Professor Epstein contests – or at the very least says that he “incorporates but goes beyond”4 – two of the leading contemporary theories of constitutional interpretation: originalism and living constitutionalism.5 Obviously, neither he nor I think this choice exhausts the range of preferred constitutional methodologies. In particular, pragmatism,6 eclecticism,7 perfectionism,8 and common law constitutionalism9 quickly leap to mind as prominent alternatives. But time and space are scarce resources, and one must choose one’s targets. Because I defend a species of originalism, the merits vel non of living constitutionalism or any methodologies not addressed by Professor Epstein are not pertinent to this Comment. I am fairly confident that Professor Epstein and I would largely agree on the inadequacy, though not necessarily on all of the reasons for the inadequacy, of all of these other modes of interpretation. Instead, the relatively modest, but nonetheless important, disagreement with Professor Epstein on which I want to focus concerns whether originalism can carry all of the necessary interpretative water without a supplementing framework drawn from classical liberal political theory. With one very important qualification, described at the conclusion of this Comment, I think that it can.
Lawson spends 31 pages digesting a dozen from Epstein. That sounds about right. Very interesting ground though to differ on.
I never thought of Richard as an originalist. In fact, his idiosyncratic views on the Heller (that it doesn’t apply in D.C. because it is not a “state”) seem quite distant from originalist thought.
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Jan 9, 2014

Laszewski: Mix of Healthy and Sick People “Doesn’t Look Good Right Now” and Mandate is “Almost Worthless”

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From Ezra Klein’s interview with Robert Laszewski, a leading health wonk.

EK: I recognize that we won’t really know what the mix of healthy and sick people is until at least April, once we see the surge from the individual mandate. But what are insurers seeing in the mix so far?

RL: It’s not positive. I don’t want to say people have given up on the notion they’ll get a good mix. They know the administration will make a big push. The insurance companies will spend big on advertising and outreach. So no one has given up. But it doesn’t look good right now.

There’s a big misconception that this is about young people. That’s baloney. It’s about healthy people. A healthy 20-year-old might only pay a $100 premium. You want healthy 40 and 50-year-olds. The big problem right now is really total enrollment. We only have about 10 percent of the uninsured in here. Insurers think you need more like 70 percent of a pool of people to sign up.

So who’s signing up? Primarily sick people.

EK: When you say “a pool,” what do you mean by that here?

RL: The people who are uninsured and eligible for the exchanges and the people coming over from the individual market. That’s the new pool. It’s hard to estimate exactly how many of them there are. But I think we’re going to ultimately need about 20 million people for a sustainable pool. It doesn’t need to be this year. That’s what the transitional risk corridors are all about. But it needs to happen in the first few years. So when I hear people talk about the goal being seven million, I think, “time out.” This needs to be 20 million people within three years.

The problem with the enrollments today is that they’re so small, it’s less than 10 percent of the uninsured coming in, it really can’t be anything but sick people. So if it’s going to be sustainable you need loads of people coming in the door. So when I judge where Obamacare is on December 31st or March 31st, I want to have confidence that this thing is ramping up to 20 million. I want to see momentum.

And what about the individual mandate? “Almost worthless” and it will be eliminated soon.

EK: That brings up two issues. The first is the individual mandate, which begins this year but is a much bigger penalty in year two, and then even bigger in year three. So one question here is how well that works.

RL: I have an interesting answer for that. I think the mandate is almost worthless because the word is getting around that they can’t really collect it. And by year three, it’s really a lot of money. I think there’ll be real pressure to just get rid of it. I don’t think you can force people to buy this insurance. If they don’t want it there’ll be a political groundswell to get rid of it. So in my mind the individual mandate is kind of irrelevant to this.

Of course. Just get rid of the cornerstone of the entire fricking law, that the government told us was essential and could not be severed. This is infuriating.

And why will it be eliminated? Because the American people have not “accept[ed] OBamacare.”

EK: There seems to be a bit of a contradiction there. You’re saying the mandate wont scare people because it can’t be collected, but that the penalty is so large that they’ll hate it enough to get rid of it. It seems to me that if people really think the penalty is huge, then the mandate is likely to do its work and persuade people to buy insurance.

RL: I think it’s all about whether they have confidence in Obamacare or not. The mandate will be effective for free riders. No one has a problem penalizing people who don’t pay their fair share. But if Obamacare hasn’t been sold to the American people as something they should want then the mandate will just be rubbing salt in the wound and there’ll be enormous political pressure to get rid of it. So I think this gets back to whether the American people end up accepting obamacare or not.

And how will the rates be better for next year? Eliminate many of the “mandated benefits.” You know, like forcing single men to pay for prenatal car.

EK: Do you think there’s anything the Obama administration can do about that? Or is it just a question of the marketplace at work now?

RL: I don’t think there’s anything they can do for March 31. But as we move to 2015 open enrollment, the Secretary of Health and Human Services has some power to reshape the plans. The mandated benefits are so high they’ve driven costs up and created narrower networks. The statute talks about actuarial levels so the Secretary can’t just do anything she wants. But given a combination of regulatory authority and what the Obama administration has been willing to do already in overriding statute, I think they could do some pretty significant things.

The entire core of this law–the mandate, the mandated benefits, lower premiums–continues to unravel.

 

 

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Jan 9, 2014

Alex Rodriguez Considers The Cost of Litigating in Federal Court

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Fascinating calculus for A-Rod to consider, in his decision of whether to seek a restraining order in federal court of any suspension he may receive:

According to the source, a suspension longer than 100 games will likely lead Rodriguez and his attorneys to pursue a temporary restraining order against Horowitz’s ruling in federal court.

If he is given a shorter suspension, however, “then Alex will have some things to think about,” the source told ESPNNewYork.com.

According to the source, who has been privy to some internal discussions in the Rodriguez camp, the player is weighing the financial implications of continuing to fight this battle versus accepting a suspension that will allow him to take the field sometime in the second half of the coming season.

Taking his battle into the courtroom will cost Rodriguez “at least $10 million, with no guarantee of winning,” said the source, while a 100-game ban would cost him $15,425,000 of his scheduled $25 million salary for 2014.

“All of this has been presented to Alex, and he is weighing his options,” the source said. “In certain situations it may not make much sense to continue to fight.”

$10 million to litigate this in court?! I assume this includes appeals. Fascinating.

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Jan 9, 2014

New Strategies To Stop Active Shooting Situations Quicker

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In addition to finding that the number of active shooting situations has increased over the last decade, (in contrast with mass shootings which have remained the same), a new report in the FBI Law Enforcement Bulletin offers new thinking on the fastest and quickest ways of stopping active shooting situations.

Here is the summary:

In addition, though officers responded quickly (i.e., median time 3 minutes), shooters inflicted devastating damage beforehand. This adds to the growing evidence that citizens must have insight on how to respond. The FBI’s support for strong citizen awareness, detailed in the “Run, Hide, Fight” protocol, is endorsed by all other federal agencies.[2] The data establish that when prepared, the potential victims themselves can stop the shooter. 

The report continues to suggest that the quickest way to stop the carnage is for solo officers moving quickly, rather than waiting for teams to assemble.

Initially, training programs and departments instructed their officers to form teams before entering a structure to seek out an attacker. Teams offer the responding officers a variety of advantages, but they also take time to assemble. As time went by, agencies began to weigh the advantages and disadvantages of smaller teams and even solo officer entry into the attack location. Many departments now authorize officers to make solo entry into locations where an ASE is occurring.

The authors also sought to assess how events that included solo officer entry unfolded. In many cases, solo officer entry was a difficult item to code. Police and media reports often did not contain enough information to determine whether a solo officer entry was conducted; nonetheless, the authors identified 18 cases that they confidently believe involved solo officer entry. The resolution of the cases is presented in figure 8. During solo officer entries, the event likely would be ongoing, and the officers probably would use force to stop the attacker. This most likely was a product of these officers arriving on scene and entering the attack site quickly—the median response time was 3 minutes for all events and 2 minutes for those involving solo officers.

In total, 13 of the 18 events (72 percent) still were ongoing when solo officers arrived on scene. Of these 13 incidents, law enforcement personnel either shot or physically subdued the shooter 12 times. Solo officers were also more likely to be injured during the event. Three of the 18 solo officers (17 percent) were shot. If only cases ongoing at the time of solo officer entry (13) were considered, officers were shot 23 percent of the time. Solo officer entries provide faster response, but also increase the danger to the officer.

In the end, it is the people on the scene who serve as the first line of defense.

The five highest casualty events since 2000 happened despite police arriving on scene in about 3 minutes. Clearly, fast and effective police response comprises only part of the answer to limiting the damage done during these attacks.

Also important are the actions that civilians take to protect themselves during the 3 or more minutes that it takes the police to arrive. Civilians need to be trained about what to do if one of these attacks occurs. A variety of resources are available at no cost. Federal agencies, including both the FBI and the Department of Homeland Security, Federal Emergency Management Agency, endorse the use of the teaching technique of Run, Hide, Fight to explain to civilians how they can protect themselves and others around them.[8] Police departments and the communities they serve should work together to implement this training.

The report makes no mention of the benefit of placing armed guards in schools, but does allude to armed people on the scene stopping the shooter.

Of the cases that ended before the police arrived, 67 percent (34) ended with attackers stopping themselves via suicide (29 cases) or by leaving the scene (5 cases). In the other 33 percent (17) of the cases that ended before the police arrived, the potential victims at the scene stopped the shooter themselves. Most commonly they physically subdued the attacker (14 cases), but 3 cases involved people at the scene shooting the perpetrator to end the attack.  

Relatedly, time is of the essence:

The authors have seen discussions on message boards—even in training classes—where officers suggest the only training needed to respond to ASEs is to get to the scene quickly. The belief is that most events will be over, or suspects will kill themselves. While it is true that 1) 49 percent of the events end before officers arrive and 2) suspects kill themselves after the police arrive 14 percent of the time, responding officers used force to stop the attack in 31 percent of the ASEs assessed. This 1 in 3 chance of having to use force makes it clear that simply training officers to show up is not enough.

I should note that in Arapahoe, an armed resource officer rushed towards the shooter within a minute after the incident began. He committed suicide.

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Jan 9, 2014

My Talk In Philadelphia Featured on MainStreet.com

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Michael Tremoglie of Main Street, an offshoot of TheStreet.com, interviewed me while I was in Philadelphia about Unprecedented. Here are the highlights:

Blackman recently addressed the Philadelphia chapter of the Federalist Society about the constitutionality of the ACA, commonly referred to as Obamacare. He observed that conservatives and liberals have changed positions about healthcare reform for more than two decades now. He stressed that the individual mandate, so abhorrent to conservatives now, was first advanced by some Republicans as an alternative to Hillarycare in the early 1990s. Romneycare was another Republican initiative that contained a mandate.

“There are many unprecedented things about the ACA,” Blackman said. “There are a lot aspects to it that are stunning. It is novel in that it was the first time Congress forced Americans to buy a product. It was also passed along along a strict party line vote – no Republicans voted for the bill.”

Blackman says that the Supreme Court addressed the mandate issue in 2012. The famous Roberts vote was such a shock to most people that two major cable news networks reported it incorrectly. They were so certain that the conservative majority in the Court would rule against Obama.

“In order to save the law from being struck down, the Chief Justice changed it from a requirement to purchase insurance to a tax,” Black said. “The Chief Justice called it a tax in order to save it constitutionally. He used a ‘saving construction’ which means you take a statute and make the words mean something they do not. Roberts obviously did not want to strike down the law. So he pretended it was a tax.”

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Jan 9, 2014

No, the number of mass shootings has not tripled since 2008

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The FBI Law Enforcement Bulletin has released a new report focusing on “Active Shooter Events from 200o to 2012.” Is an “Active Shooting Event” the same thing as a mass shooting? No.  As I discuss in The Shooting Cycle, the number of mass shootings, defined by four or more deaths in as ingle incident, has remained at roughly the same level for the past few decades.

In contrast, an “Active Shooting Event” involves, one or more death in a single incident where the shooter intends to kill multiple people.

The federal government defines an active shooter as “an individual actively engaged in killing or attempting to kill people in a confined and populated area, typically through the use of firearms.”[3]  For this study ASEs were located via a systematic search strategy.[4] Public records were searched using a variety of search terms to locate news stories from 2000 to 2012 involving potential ASEs in the United States. Incidents identified from these searches then were evaluated to see if they met the following criteria: The event had to involve one or more persons engaged in killing or attempting to kill multiple people in an area occupied by multiple unrelated individuals—at least one of the victims must be unrelated to the shooter.

Part of the report tracks the number of active shooting events over the last 12 years, and shows the number has increased threefold over the last 12 years.

Figure 1 presents the frequency of ASEs by year. The dotted trendline shows a definite increase over the past 12 years. In fact, the number of events drastically increased following 2008. The rate at which these events occurred went from approximately 1 every other month between 2000 and 2008 (5 per year) to more than 1 per month between 2009 and 2012 (almost 16 per year). The authors’ tracking also indicates that this increased rate has continued into 2013—more specifically, there were 15 events. While it is possible that this increase is an artifact of the search strategy (perhaps, archiving of the news reports has improved in recent years), the authors believe that the observed rise represents a real increase in the number of events in recent years. Figure 2 shows the number of people shot and the number of people killed for each year. Here again the trend line shows a definite increase. The authors’ tracking indicated that there were 72 people shot and 39 killed in 2013.

active-shooting-events

I’ve already seen several news outlets report this number to prove that mass shootings are on the rise. NPR is more nuanced, accurately labeling them “mass murders,” which are different from mass shootings.

I will quote at length from my new article, The Shooting Cycle, which offers the most recent numbers confirming that there is no increased trend in mass shootings, defined as four or more deaths in a single incident.

“Shooting” is not considered a term of art among criminologists. The closest approximation is the “mass murder.” The government does not keep statistics focusing specifically on of “mass shootings.” Politifact observed that despite reading through the FBI’s Uniform Crime Report[1] and the Bureau of Justice Statistics’ National Crime Victimization Study,[2] they could not “find any published statistics on mass shootings.”[3] The FBI defines a “mass murder,” as distinguished from a “serial murder,” as “a number of murders (four or more) occurring during the same incident, with no distinctive time period between the murders.”[4] Two of the leading scholars on mass murder, Professors James Alan Fox and Jack Levin, define mass murder more precisely, as the “slaughter of four or more victims by one or a few assailants within a single event, lasting but a few minutes or as long as several hours.”[5] As Fox and Levin noted, in “striking contrast to the expanding scholarly interest in serial homicide, mass killings—the slaughter of victims during a single act or a short-lived crime spree—have received relatively little consideration.”[6] We will rely on the definition of mass murder as defined by Professors Fox and Levin, and use the term “mass shooting” interchangeably.

Contrary to popular perceptions, mass shootings are rare, constituting a tiny share of homicides. The magazine Mother Jones offers a detailed, comprehensive list of mass shootings between 1982 and the present, counting 67 mass shootings.[7] The New Republic, building on the Mother Jones report, counted 70 mass shootings between 1982 and 2012.[8] Though each loss of life is tragic, these deaths constitute a very, very small percentage of gun homicides. In 2005, 0.12% of homicides involved four victims (the threshold for a mass shooting).[9] To put that in perspective, roughly 1 out of every 1,000 gun homicides results from a mass shooting. [10] If you decrease the threshold to three victims, the rate rises to 0.60%.[11] Another study revealed that between 1976 and 2005, “less than 1/5 of 1% (0.18%) of all murders in the United States involved four or more victims.”[12]

Even among mass murders, the “indiscriminate slaughter of strangers”—what is commonly portrayed as a mass shooting—“is the exception to the rule.”[13] From 1976-1995, 39.4% of mass murders were “familicides,” where the victim was related to the shooter, and 38.2% were people the shooter knew.[14] Only 21.4% of the victims of the 483 mass murders during this period were strangers. In other words, even among the small number of mass shootings, an even smaller share are indiscriminate killings in public places, such as schools or movie theaters.  As a total percentage of unfortunate bloodshed, mass shootings are a small, small sliver that nonetheless captures a huge percentage of the public fascination.

Further, contrary to what the zeitgeist may suggest, mass shootings are not on the rise. Professor James Alan Fox has found that “[d]espite the huge media coverage devoted to them, crime statistics show that there is no upward trend in mass killings.”[15] Fox and DeLateur offer an alternate analysis based on “the FBI’s Supplementary Homicide Reporting (SHR) program” from 1976 to 2011 that reflects “all 672 mass shootings with at least four fatalities reported to local law enforcement authorities.”[16]

 shooting-trned

Fox and DeLateur observe that over the past few decades, “there have been, on average, nearly 20 mass shootings a year in the United States,” most of which were nowhere near “as deadly” as Newtown or Aurora. The authors conclude, “Without minimizing the pain and suffering of the hundreds of those who have been victimized in recent attacks, the facts clearly say that there has been no increase in mass shootings and certainly no epidemic.” Instead, the only thing that is clear about the data is the “largely random variability in the annual counts.” Fox stressed, “the risk of this type of crime is significantly less than a wide array of other catastrophes that we confront every day.”

According to another analysis by Politifact, which considered these events over the past three decades, there is no clear trend in the number of annual mass shootings: 1976-1980 (20.6 incidents annually), 1981-1985 (16.8), 1986-1990 (18.2), 1991-1995 (23.0), 1996-2000 (20.0), 2001-2005 (21.0), 2006-2009 (25.5).[17] Politifact rated as “half true” a statement that recent shootings in Arizona reflect a “disturbing trend.” Rather than a “disturbing trend,” Politifact observed that the number of mass shootings in 2007 (23), 2008 (29), and 2009 (27) barely changed; it was “statistical noise.”[18] This reflects Professors Fox and DeLateur’s findings.

Noted criminologist Gary Kleck observes that “It would be misleading to suggest that there was some long-term upward trend in mass shootings since 1976.” He added, “The exact number are highly unstable, but ignoring small, year-to-year fluctuations, there was no trend one way or the other from 1976 to 2009. Further, if these figures were computed on a per-capita basis, taking into account population increases, the long-term trend in the rate would be downward.”[19] These numbers even hold true throughout most of the twentieth century, as “mass murder”—slightly different from mass shootings—“was nearly as common during the 1920s and 30s as it has been since the mid-1960s.”[20] Further, as Professor Mark Melter points out, “the mass shooting rate has remained relatively stable over the past forty years” as compared with “the rates of homicide and serious violent crime have dropped significantly during the same period.”[21] The rate of mass shootings has remained nearly constant, notwithstanding numerous other changes in our increasingly-safer society.

Specifically, mass shootings on college campuses are also not as common as popular culture would suggest. Professor Fox observed that, “Overall in this country, there is an average of 10 to 20 murders across campuses in any given year.”[22] As noted, single homicides are much, much less common than mass murders.  Fox continues, “Compare that to over 1,000 suicides and about 1,500 deaths from binge drinking and drug overdoses annually.”[23] A 2011 study looking into the causes of death of college students, conducted across 157 four-year institutions, comprising 1,361,304 students, found that the annualized mortality rate per 100,000 students was, ranked from highest to lowest, (1) suicide 6.18, (2) alcohol related traffic deaths 3.37, (3) unknown cause 3.00, (4) cancer (1.94), (5) alcohol related non-traffic injury (1.49), and finally (6) homicide (0.53).[24] Homicide—not from mass shootings—trails far, far behind on causes of deaths. For every 200,000 college students, roughly two die per year due to homicide (to say nothing of a mass shooting), while thirteen die from suicide and 7 die from drunk driving. Similar trends hold true for safety in K-12 schools, which garnered a significant amount of attention in the wake of the tragedies of Columbine and Newtown. According to a report by the Center for Disease Control, the probability of a child “dying in school in any given year from homicide or suicide was less than one in 1 million between 1992 and 1994 and slightly greater than one in 2 million between 1994 and 1999.”[25]

A study performed by USA Today quantified the number of mass killings, rather than mass shootings, which include incidents where four or more people are killed by any means, including gun shot, in addition to smoke inhalation, stabbing, strangulation/suffocation, blunt force, and drowning.[26] Even with this expanded metric, the study concluded that “the number of mass killings has not increased in recent years.”[27] A report from the Advanced Law Enforcement Rapid Response Training (ALERRT) Center at Texas State University found an increase from 2000 to 2013 in the number of “active shootings in public settings where the primary motive appeared to be mass murder and at least one of the victims was unrelated to the suspect.”[28] But these active shooter situations are not mass shootings, as it includes incidents with a single, rather than four, deaths.

These statistics should dispel many of the common perceptions about the prevalence and frequency of deaths by mass shootings.



[1] FBI Releases Preliminary Semiannual Crime Statistics for 2010, Federal Bureau of Investigation (Dec. 20, 2010), http://www.fbi.gov/news/pressrel/press-releases/prelimsemiucr_122010

[2] Jennifer Truman & Michael Rand, Bureau of Justice Statistics Bulletin: Criminal Victimization, 2009 (Oct. 2010), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cv09.pdf

[3]“This Week” report says hundreds have died in multiple-victim shootings, Polifact (Jan. 11, 2011), http://www.politifact.com/truth-o-meter/statements/2011/jan/11/pierre-thomas/week-report-says-hundreds-have-died-multiple-victi/

[4]Federal Bureau of Investigation National Center for the Analysis of Violent Crime, Serial Murder: Multi-Disciplinary Perspectives for Investigators (2005), available at http://www.fbi.gov/stats-services/publications/serial-murder/serial-murder-1#two.

[5] James Alan Fox & Jack Levin, Multiple Homicide: Patterns of Serial and Mass Murder, 23 CRIME J. 407, 429 (1998).

[6]James Alan Fox & Jack Levin, Multiple Homicide: Patterns of Serial and Mass Murder, 23 CRIME J. 407, 430 (1998).

[7] As of December 2013, there are 67 mass shootings on the list. See Mark Follman, Gavin Aronsen, Deanna Pan & Maggie Caldwell, US Mass Shootings, 1982-2012: Data From Mother Jones’ Investigation, Mother Jones (Dec. 28, 2012) available at  http://www.motherjones.com/politics/2012/12/mass-shootings-mother-jones-full-data

[8] Amy Sullivan, Mass Shootings Are on the Rise—And 2012 Has Been Deadlier Than Ever Before, New Republic (Dec. 14, 2012), http://www.newrepublic.com/blog/plank/111149/why-are-mass-shootings-the-rise#

[9] “This Week” report says hundreds have died in multiple-victim shootings, Polifact (Jan. 11, 2011), http://www.politifact.com/truth-o-meter/statements/2011/jan/11/pierre-thomas/week-report-says-hundreds-have-died-multiple-victi/

[10] “This Week” report says hundreds have died in multiple-victim shootings, Polifact (Jan. 11, 2011), http://www.politifact.com/truth-o-meter/statements/2011/jan/11/pierre-thomas/week-report-says-hundreds-have-died-multiple-victi/

[11] “This Week” report says hundreds have died in multiple-victim shootings, Polifact (Jan. 11, 2011), http://www.politifact.com/truth-o-meter/statements/2011/jan/11/pierre-thomas/week-report-says-hundreds-have-died-multiple-victi/

[12] Mark B. Melter, The Kids Are Alright; It’s the Grown-Ups Who Scare Me: A Comparative Look at Mass Shootings in the United States and Australia, 16 Gonz. J. Int’l L. 33, 35 (2012) citing Homicide Trends in the U.S., BUREAU OF JUSTICE STATISTICS (Feb. 28, 2011), http://bjs.ojp.usdoj.gov/content/homicide/tables/multivictab.cfm.

[13] James Alan Fox, Jack Levin, Multiple Homicide: Patterns of Serial and Mass Murder, 23 Crime & Just. 407, 438 (1998).

[14] James Alan Fox, Jack Levin, Multiple Homicide: Patterns of Serial and Mass Murder, 23 Crime & Just. 407, 434 (1998).

[15] Laura Smith-Spark, Are mass killings on the increase? Criminologist says no, CNN (April 3, 2012), http://www.cnn.com/2012/04/03/us/us-mass-killings/

[16] James Alan Fox & Monica J. DeLateur, Mass Shootings in America: Moving Beyond Newtown,

Homicide Studies,  published online 18 December 2013 at 5   http://hsx.sagepub.com/content/early/2013/11/27/1088767913510297

[17]“This Week” report says hundreds have died in multiple-victim shootings, Polifact (Jan. 11, 2011), http://www.politifact.com/truth-o-meter/statements/2011/jan/11/pierre-thomas/week-report-says-hundreds-have-died-multiple-victi/

[18] “This Week” report says hundreds have died in multiple-victim shootings, Polifact (Jan. 11, 2011), http://www.politifact.com/truth-o-meter/statements/2011/jan/11/pierre-thomas/week-report-says-hundreds-have-died-multiple-victi/ Cf. Mark B. Melter, The Kids Are Alright; It’s the Grown-Ups Who Scare Me: A Comparative Look at Mass Shootings in the United States and Australia, 16 Gonz. J. Int’l L. 33, n. 35  (2012) (“There were on average 22.25 incidents and 108.75 victims from 2006-2009. By contrast, there were on average 18.46 incidents and 84.46 victims between 1976-2010.”).

[19]“This Week” report says hundreds have died in multiple-victim shootings, Polifact (Jan. 11, 2011), http://www.politifact.com/truth-o-meter/statements/2011/jan/11/pierre-thomas/week-report-says-hundreds-have-died-multiple-victi/

[20] Grant Duwe, A Circle of Distortion: The Social Construction of Mass Murder in the United States, 6 W. CRIMINOLOGY REV. 59, 60 (2005).

[21] Mark B. Melter, The Kids Are Alright; It’s the Grown-Ups Who Scare Me: A Comparative Look at Mass Shootings in the United States and Australia, 16 Gonz. J. Int’l L. 33, 38 (2012).

[22] Laura Smith-Spark, Are mass killings on the increase? Criminologist says no, CNN (April 3, 2012), http://www.cnn.com/2012/04/03/us/us-mass-killings/

[23]Laura Smith-Spark, Are mass killings on the increase? Criminologist says no, CNN (April 3, 2012), http://www.cnn.com/2012/04/03/us/us-mass-killings/

[24] James C. Turner, MD & Adrienne Keller, MD, Leading causes of mortality among American college students at 4-year institutions, American Public Health Association (Oct. 29, 2011), https://apha.confex.com/apha/139am/recordingredirect.cgi/id/45544

[25]Harding, David, Cybelle Fox, & Jal Mehta, Studying Rare Events Through Qualitative Case Studies: Lessons from a Study of Rampage School Shootings, 31 Sociological Methods Research 174 (2002).

[26] http://usatoday30.usatoday.com/news/nation/mass-killings/index.html#title

[27] http://www.usatoday.com/story/news/nation/2013/12/03/fbi-mass-killing-data-inaccurate/3666953/

[28] http://news.yahoo.com/spike-in-mass-shootings-creates-demand-for-different-police-approach-132625638.html  “The rate at which these events occurred went from approximately one event every other month between 2000 and 2008 (5 per year) to more than one a month between 2009 and 2012 (almost 16 per year). Our tracking also indicates that this increased rate has continued into 2013.”

Update: Another part of the report focuses on the number of people shot per event:

Figure 5 depicts the number of people shot per event—the median is five. It should be noted that if the shooter is shot, the authors do not include the shooter in their counts of the number of people shot or killed. As can be seen in the figure, most of the events are clustered on the left side and do not represent mass casualty situations. However, there are a number of mass casualty situations on the right-hand side of the figure. It also is worth noting that in the five largest-casualty events (Northern Illinois University in DeKalb; Sandy Hook Elementary School; Fort Hood Army Base, Killeen, Texas; Virginia Polytechnic and State University in Blacksburg; and the Century 21 Theater) the police were on scene in about 3 minutes; yet, a substantial number of people still were shot and injured or killed.

Figure 5. Number Shot Per Event

Because it is not broken down by year, it is hard to assess the trend. By my count, there were a total of 44 incidents with between 0 and 3 deaths, 28 incidents with between 4 and 7 deaths, and 38 incidents with 8 or more deaths. No matter how you look at it, the chart is skewed to the left. The mass shooting incident with many deaths is the outlier.

 

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