oberkommando
New member
Sorry for long post I cut quite a bit out so feel free to cut more, I'll understand, I just thought some might find their gall interesting.
REASON * October 1999
Big Guns
Plaintiffs' lawyers declare themselves the "fourth branch of government" and go after firearms
By Walter Olson
You don't need to be a big Second Amendment booster to be appalled by the newest round of litigation against gun makers. All you have to do is take a look at some of the coverage that has appeared recently in press outlets that are basically sympathetic to gun control, like Salon, the American Lawyer, the National Law Journal, and The New Yorker.
According to Jake Tapper in the July 13 Salon, many of the cities suing gun makers are themselves major distributors of guns, police surplus and otherwise, to the used market. Disposing of firearms in "gun swaps," generally with no questions asked, has been a handy way for localities like Boston, Detroit, and Alameda County, California, to defray the cost of new police weapons. Boston, for example, attached no strings to resale when it recently got rid of more than 3,000 .38s, even though it has now endorsed a new legal theory that private vendors should be liable because they displayed "willful blindness" to what happened after guns left their hands.
For hypocrisy, it's hard to top that. Not impossible, though. New Orleans was the first city to jump on the gun lawsuit train: "We have been so focused here in New Orleans on getting guns off the street and protecting our citizens," Mayor Marc Morial declared at the press conference. Yet New Orleans recently scored what may be the biggest deal of its kind ever in the U.S. when it recycled to street use through an Indiana broker some 7,300 guns, most of which it had confiscated from lawbreakers. These included TEC-9s and various other semiautomatics whose importation and manufacture Congress banned in 1994.
The municipal gun suits demand that manufacturers equip their wares with safety locks, but New Orleans officials attached no such condition to the resale of the guns in their own inventory, only two of which had locks among the thousands they shipped. Nor did they require that the guns be resold only to other police departments, a financially unwelcome stipulation since weapons may fetch only half as much on the market when that particular condition is attached.
These lawyers are not really interested in law. Instead, they are quite openly spinning out new liability theories as fast as they can dream them up, asking the courts to penalize the gun companies for not pre-emptively anticipating and complying with those theories in the past.
How worried are the plaintiffs' lawyers about going to trial and losing? "As in the war against tobacco, winning in court isn't necessarily the objective of the lawyers," observes Peter J. Boyer in a fascinating article about the origins of these cases in the May 17 New Yorker. "If twenty cities do bring suits, defending against them, according to some estimates, could cost the gun manufacturers as much as a million dollars a day." That would force gun makers to the negotiating table as the only alternative to bankruptcy.
"Judge shopping" also plays a role in the strategy. On the federal side, according to the July 19 National Law Journal, the NAACP is desperately angling to get its new suit against gun makers heard by Brooklyn's extremely liberal senior-status judge Jack Weinstein, because the underlying theories "might not succeed in any other courtroom in America".
New Yorker's Boyer. "Well, we've started a war." Attorney Dennis Henigan of the Center to Prevent Handgun Violence said what he's after is to create a "credible threat of liability....The more cities that file, the greater is the threat. So what you really want is a diversity of cases in lots of different regions, lots of different courts to create the greatest threat of liability." You might call this a "spaghetti strategy": Throw a potful against the wall and see if any strands stick. You might also compare it with what the Irish Republican Army said after its Brighton hotel bombing failed to assassinate Margaret Thatcher: "We only have to be lucky once. You have to be lucky every time."
The reason it can't be found in any civics book is probably that it's so alien to the form of government the Founders thought they were giving us. The June American Lawyer, in its article recounting the origins of the firearms litigation, reports that prominent New Orleans trial lawyer Wendell Gauthier was the first to talk his colleagues into suing gun makers, even though their pockets weren't all that deep. The suit "fit with Gauthier's notion of the plaintiffs bar as a de facto fourth branch of government, one that achieved regulation through litigation where legislation failed."
Remember, it's not our side that's decided to call the trial lawyers a de facto fourth branch of government: That's their view of the matter, in the words of the American Lawyer. Of course, there remain a few differences between this new Fourth Branch and the three original branches the Founders had in mind. For one thing, those who labor in the other three branches of government aren't supposed to use their coercive powers to turn themselves into billionaires.
Visit Walter Olson's official Web site
overlawyered.com
[This message has been edited by oberkommando (edited November 18, 1999).]
[This message has been edited by oberkommando (edited November 18, 1999).]
REASON * October 1999
Big Guns
Plaintiffs' lawyers declare themselves the "fourth branch of government" and go after firearms
By Walter Olson
You don't need to be a big Second Amendment booster to be appalled by the newest round of litigation against gun makers. All you have to do is take a look at some of the coverage that has appeared recently in press outlets that are basically sympathetic to gun control, like Salon, the American Lawyer, the National Law Journal, and The New Yorker.
According to Jake Tapper in the July 13 Salon, many of the cities suing gun makers are themselves major distributors of guns, police surplus and otherwise, to the used market. Disposing of firearms in "gun swaps," generally with no questions asked, has been a handy way for localities like Boston, Detroit, and Alameda County, California, to defray the cost of new police weapons. Boston, for example, attached no strings to resale when it recently got rid of more than 3,000 .38s, even though it has now endorsed a new legal theory that private vendors should be liable because they displayed "willful blindness" to what happened after guns left their hands.
For hypocrisy, it's hard to top that. Not impossible, though. New Orleans was the first city to jump on the gun lawsuit train: "We have been so focused here in New Orleans on getting guns off the street and protecting our citizens," Mayor Marc Morial declared at the press conference. Yet New Orleans recently scored what may be the biggest deal of its kind ever in the U.S. when it recycled to street use through an Indiana broker some 7,300 guns, most of which it had confiscated from lawbreakers. These included TEC-9s and various other semiautomatics whose importation and manufacture Congress banned in 1994.
The municipal gun suits demand that manufacturers equip their wares with safety locks, but New Orleans officials attached no such condition to the resale of the guns in their own inventory, only two of which had locks among the thousands they shipped. Nor did they require that the guns be resold only to other police departments, a financially unwelcome stipulation since weapons may fetch only half as much on the market when that particular condition is attached.
These lawyers are not really interested in law. Instead, they are quite openly spinning out new liability theories as fast as they can dream them up, asking the courts to penalize the gun companies for not pre-emptively anticipating and complying with those theories in the past.
How worried are the plaintiffs' lawyers about going to trial and losing? "As in the war against tobacco, winning in court isn't necessarily the objective of the lawyers," observes Peter J. Boyer in a fascinating article about the origins of these cases in the May 17 New Yorker. "If twenty cities do bring suits, defending against them, according to some estimates, could cost the gun manufacturers as much as a million dollars a day." That would force gun makers to the negotiating table as the only alternative to bankruptcy.
"Judge shopping" also plays a role in the strategy. On the federal side, according to the July 19 National Law Journal, the NAACP is desperately angling to get its new suit against gun makers heard by Brooklyn's extremely liberal senior-status judge Jack Weinstein, because the underlying theories "might not succeed in any other courtroom in America".
New Yorker's Boyer. "Well, we've started a war." Attorney Dennis Henigan of the Center to Prevent Handgun Violence said what he's after is to create a "credible threat of liability....The more cities that file, the greater is the threat. So what you really want is a diversity of cases in lots of different regions, lots of different courts to create the greatest threat of liability." You might call this a "spaghetti strategy": Throw a potful against the wall and see if any strands stick. You might also compare it with what the Irish Republican Army said after its Brighton hotel bombing failed to assassinate Margaret Thatcher: "We only have to be lucky once. You have to be lucky every time."
The reason it can't be found in any civics book is probably that it's so alien to the form of government the Founders thought they were giving us. The June American Lawyer, in its article recounting the origins of the firearms litigation, reports that prominent New Orleans trial lawyer Wendell Gauthier was the first to talk his colleagues into suing gun makers, even though their pockets weren't all that deep. The suit "fit with Gauthier's notion of the plaintiffs bar as a de facto fourth branch of government, one that achieved regulation through litigation where legislation failed."
Remember, it's not our side that's decided to call the trial lawyers a de facto fourth branch of government: That's their view of the matter, in the words of the American Lawyer. Of course, there remain a few differences between this new Fourth Branch and the three original branches the Founders had in mind. For one thing, those who labor in the other three branches of government aren't supposed to use their coercive powers to turn themselves into billionaires.
Visit Walter Olson's official Web site
overlawyered.com
[This message has been edited by oberkommando (edited November 18, 1999).]
[This message has been edited by oberkommando (edited November 18, 1999).]