Posted on 07/23/2003 2:44:45 AM PDT by kattracks
Capitol Hill (CNSNews.com) - A senior official with a pro-Second Amendment group is charging gun control advocates of manipulating the legal system to find better venues for cases involving firearm manufacturers and whether they should be held liable in cases where guns are used to commit crimes.
Numerous groups - both supportive of and opposed to the Second Amendment recognition of an individual American's right to keep and bear arms - have gone to court at the state and federal level seeking judicial support for their positions. Some gun-rights advocates argue that those court cases have been filled with "legal trickery" from anti-gun groups.
As CNSNews.com reported Monday, the U.S. District Court for the Eastern District of New York dismissed a lawsuit filed by the National Association for the Advancement of Colored People (NAACP) against nearly 100 firearms industry defendants.
Such cases are supposed to be assigned to judges by a random lottery to ensure that attorneys do not seek out judges with a predisposition to rule in a certain manner in specific types of cases.
But Lawrence Keane, vice president and general counsel of the National Shooting Sports Foundation (NSSF), believes the NAACP's attorney deliberately structured the case to be argued before Senior Federal District Judge Jack B. Weinstein, whom he said has a reputation as being "plaintiff-friendly" in cases against the gun industry and other product manufacturers.
"In order to get in the door of the [federal] courthouse in the first place, the NAACP has got to have 'diversity jurisdiction,'" Keane said, referring to the legal principle that allowed the NAACP to take its state lawsuit before a federal judge.
U.S. law allows state civil claims to be heard by federal judges if the plaintiff does not reside in the same state as any of the defendants and if the amount in controversy is more than $75,000. The case was eligible to be heard in the Eastern District of New York because the defendants' products are sold there, a fact used to establish the legal principle of "personal jurisdiction."
But Keane accuses the NAACP's anti-gun attorney, Elisa Barnes, of intentionally excluding the third largest distributor of handguns in the country - Beretta USA Corporation, located in Maryland - from the lawsuit.
"To get the NAACP, a Maryland corporation, in front of Judge Weinstein, you can't have Beretta USA as a defendant," Keane explained. "So they leave Beretta USA out of the case, so that they can manufacture diversity [jurisdiction], so that they could be in federal court, so that that she can check the 'relatedness' box and have the case directed to Judge Weinstein."
'Relatedness' of cases intended to promote 'judicial economy'
The "relatedness box" to which Keane referred is part of a "civil cover sheet" that attorneys are required to file with the court clerk's office when launching a civil suit. The rules of the court mandate that the same judge should hear related cases to promote "judicial economy."
Examples given of the principle include two different plaintiffs suing the same defendant for breaching two essentially identical contracts. Because the cases have many details in common, the same judge would hear both suits to avoid duplication of testimony and research. But one plaintiff suing one defendant for breach of one contract and a second plaintiff suing a different defendant for breach of a separate contract would not be related, even though they involve the same underlying legal principle.
Keane accused Barnes of stretching the definition of "relatedness" far beyond what the court's rules intended.
"It's an old plaintiff's trick to get the case in front of your favorite pro-plaintiff judge, which Judge Weinstein clearly is," he said. "We went to the clerk's office, we pulled the civil cover sheet, and what did we find? [Barnes] had checked 'related.'"
Barnes allegedly listed cases to which the NAACP lawsuit was "related" progressing back to the 1995 Hamilton v. AccuTek lawsuit, also filed by Barnes against a gun manufacturer. But that case had been decided by Weinstein in Barnes' favor, and Weinstein's ruling had been unanimously overturned on appeal before the NAACP lawsuit was filed.
Keane believes that neither Hamilton, nor any of the other cases Barnes had filed using Hamilton as the basis for a "related" claim, qualified under the court's rules.
"This is not related. This case should go back for a spin on the wheel, those are the rules," Keane argued. But the judge who receives the case under a "related" claim has the final authority over whether or not he or she will hear the case.
"[Weinstein] clearly conceded that the case was not related. Not withstanding that, he refused to deal with the issue, refused to send the case back to the clerk's office for [random assignment]," Keane continued. "Judge Weinstein is clearly not going to send the cases away because he wants them. That's how these cases end up in front of him."
Turning defeat into legal victory
While the firearm industry defendants were pleased that the suit against them was dismissed, they were less than pleased with Judge Weinstein's legal "findings" in the case.
A 12-member "advisory jury" heard six weeks of testimony and found that the NAACP failed to prove any of the defendants had engaged in any conduct constituting a public nuisance.
Despite the jury's findings, Weinstein ruled that the NAACP had established "clear and convincing evidence" that manufacturers had allowed "careless practices" by retail dealers and that the gun industry had not done enough to "eliminate or even appreciably reduce the public nuisance they individually and collectively have created."
He then dismissed the case, stating as his reason that: "[The NAACP] failed, however, to show that its harm was different in kind from that suffered by other persons in New York."
Keane believes Weinstein accommodated Barnes' ultimate goal of ruling that the firearm industry had created a "public nuisance" despite New York law and the jury's determination.
"[Weinstein] slaps them in the face, disregards their findings and creates his own findings," Keane alleged. "There's a reason [Barnes] wanted to be in his courtroom."
Barnes' office did not return calls seeking comment on this article prior to deadline.
Because the firearm industry won the case, it cannot appeal to have Weinstein's "finding" that gun makers are guilty of creating a "public nuisance" stricken from the record.
The industry is supporting Senate passage of the Protection of Lawful Commerce in Arms Act (S. 659), which has 54 cosponsors and passed the House by a vote of 285-140.
The bill would allow liability lawsuits against gun makers, distributors and sellers when a product is defective or does not function as advertised, but would not allow the protected entities to be sued for damages or injuries resulting from the criminal misuse of their lawfully sold products.
Gun control groups such as the Brady Center to Prevent Gun Violence and the Violence Policy Center oppose the bill.
E-mail a news tip to Jeff Johnson.
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Therein lies the crux of the problem: rules don't apply to liberals.
I must disagree, I have been to court enough to see that the real problem we have is not that the rules don't apply to liberals. The problem is that we don't have a justice system, we don't even have a legal system anymore, we just have a system, period. No one care about justice, not the judge, not the prosecutor, not the defence lawyer, not even the jurry. We don't have a legal system anymore either, the judge blatatly and flagrantly disregards the law at any time it pleases him.
We now have a system in which the prosecutor is playing a numbers game. His (or her) sole objective is to get 'wins'. Since plea agreements count as a win, they stack the deck increddibly. They start by charging you with 2-3 times as many offences than are actually applicable (meaning that the officer accused you of, not that you actually did), then they offer a plea agreement that gives some piddly little punishment for the original crime that you are alleged of comitting, and dropping all others. Only a fool or an innocent man would not take it. That leaves the fools and innocent men to deal with. The fools are easy because they usually don't have lawyers, so the prosecutor can walk all over them - judge rules 'Guilty'. That leaves the innocent man. He will usually have a defense lawyer (unfortunately it is often a public defender, who while he may be a fine lawyer (relative term) he is usually so overworked he can't investigate or prepare for your case in any way shape or form so it is almost always a slam dunk for the prosecutor again.) The last possibility is the innocent man that has money (or at least can get some) He can get a decent lawyer and then the real (and only) fight is on. It is a no holds barred, bare fisted spectacular. They both lie, mislead, and insinuate to get the favor of the judge and the jurry. The judge is a very powerful ally or foe depending on which side he takes. I personally believe he will take the side of the prosecutor 10 to 1 because I believe every conviction generates fines and court costs which can only be used as justification for a higher salary, so how could he (she) be impartial?
How's that for a brief synopsis of the "American Justice System"
I must disagree, I have been to court enough to see that the real problem we have is not that the rules don't apply to liberals. The problem is that we don't have a justice system, we don't even have a legal system anymore, we just have a system, period. No one care about justice, not the judge, not the prosecutor, not the defence lawyer, not even the jurry. We don't have a legal system anymore either, the judge blatatly and flagrantly disregards the law at any time it pleases him.
We now have a system in which the prosecutor is playing a numbers game. His (or her) sole objective is to get 'wins'. Since plea agreements count as a win, they stack the deck increddibly. They start by charging you with 2-3 times as many offences than are actually applicable (meaning that the officer accused you of, not that you actually did), then they offer a plea agreement that gives some piddly little punishment for the original crime that you are alleged of comitting, and dropping all others. Only a fool or an innocent man would not take it. That leaves the fools and innocent men to deal with. The fools are easy because they usually don't have lawyers, so the prosecutor can walk all over them - judge rules 'Guilty'. That leaves the innocent man. He will usually have a defense lawyer (unfortunately it is often a public defender, who while he may be a fine lawyer (relative term) he is usually so overworked he can't investigate or prepare for your case in any way shape or form so it is almost always a slam dunk for the prosecutor again.) The last possibility is the innocent man that has money (or at least can get some) He can get a decent lawyer and then the real (and only) fight is on. It is a no holds barred, bare fisted spectacular. They both lie, mislead, and insinuate to get the favor of the judge and the jurry. The judge is a very powerful ally or foe depending on which side he takes. I personally believe he will take the side of the prosecutor 10 to 1 because I believe every conviction generates fines and court costs which can only be used as justification for a higher salary, so how could he (she) be impartial? How's that for a brief synopsis of the "American Justice System"
It is perfectly fine. It also explains why nearly all the political support from tort lawyers goes to Democrats. It also explains why it is the liberal side of the gun argument that has to cheat to get its way.
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