Bond, Babes, Boom

So sue me for the alliteration... I just thought I would share the new Bond trailer.

NRA v. San Francisco Housing Authority

Flush from their success before the Supreme Court, the NRA has vowed to challenge gun control laws it views as violative of the Second Amendment around the country. Two of the ones which were mentioned frequently after the Supreme Court released the decision in District of Columbia v. Heller, were San Francisco and Chicago.

The suit against San Francisco was filed on Friday before the U.S. District Court for the Northern District of California.

Now, it first might be helpful to explain what the Heller decision actually says. Written by Justice Scalia, the decision essentially states that the 2nd Amendment of the U.S. Constitution is a personal right. It is not a right which is dependent on being an active member of an organized militia. The reason why, argues Justice Scalia, is that when the Amendment was written certain terms had slightly different meanings than they do now. In 1789, militia effectively meant any able-bodied (male) person who could hold a weapon and use it as part of an organized militia. (Interestingly, he also argues that the "free state" term in the Amendment refers to a free politiy instead of a political entity. While I agree with the first definition the second one seems a little bit of a stretch.)

In striking down the District of Columbia law, the Justice Scalia's majority opinion made it clear that they were not making 2nd Amendment an exception under American law, i.e. that there were no limits on it. Within the opinion, he stated that the States and Federal government could limit the rights of felons and the instance to own firearms. He also stated that reasonable time and place limitations could be placed on the keeping of firearms (District of Columbia v. Heller, (2008) slip op. 07-290 at 54.) Specifically, the opinion states,

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

So, while the right is personal, and cannot be taken away, it can be limited as to when and where the firearms may be brought. Blanket bans are unconstitutional.

Now, the NRA has brought suit against the San Francisco Housing Authority, the City and County of San Francisco, as well as other entities which help enforce San Francisco's ban on firearms. Under San Francisco's ban, passed last August, firearms are prohibited from generally everywhere in the city that is not private property (including public buildings of the city and county, parks, and public housing operated by SFHA), unless you fall into one of the exceptions. These exceptions including police officers, military personnel, private guards, and "honorably retired Federal officers and agents of Federal law enforcement". It also curtails sales of weapons and ammunition except for a gun club/firearms range.

What the law does not do is ban ownership of firearms by private citizens in their own homes. It does not criminalize them for transporting their own weapons on city streets or sidewalks.

Now, although the gun advocates have won a significant victory with the Heller decision, that does not mean that suddenly San Francisco's gun ban on county property going to go away. There are significant differences between the Heller situation and the law in San Francisco. First off, the D.C. law banned all weapons everywhere in the District of Columbia unless you had a special permit that had to be renewed every year. Furthermore, it mandated that for those who were able to obtain the special permit, the weapon must be rendered inoperable or disabled by use of a trigger guard.

San Francisco's law does neither of these things. It only permits firearms on city and county property.

Now, the complaint was filed on behalf of NRA members in the county, including named plaintiff Guy Montag Doe (a pseudonym) for a man who lives in an SFHA unit (and I wonder now, have I ever represented this guy?) who keeps the weapon for protection. The argument goes that Mr. Doe is being denied his right to keep a firearm for self-defense against

particularly against perpetrators of sexual orientation-based hate crimes, i.e. physical attacks on persons perceived as homosexuals, motivated solely by antagonism to them because of their perceived sexual orientation.

(side note... did anyone tell this attorney who picked this guy as the named plaintiff that this is San Francisco? Yes I know hate crimes and discrimination occur, but...)

Looking at the Heller decision, a lot of the law should withstand challenge. It is unlikely that anyone in the U.S. N.D.CA is going to completely strike down this law (or the 9th Circuit). The ban on weapons in county buildings, including schools, will probably remain in effect. The banin those places can be supported by the clear wording of the Heller decision It may be closer as far as weapons in plaza's, parks, and the like, but I think that the courts will probably uphold the ban there as well.

The question, at least in my mind, is how the court is going to deal with guns in public housing. On the one hand, a lot of people live there. On the other, they are not required to live there. Now, although the argument could have been made that gun owners did not have to live in the District of Columbia, that situation was different. Under that law in Heller, nowhere in the District of Columbia could a person own a firearm, even in their own private homes. Under the San Francisco law, the right is not curtailed in private property, only on government property.

Furthermore, there is a host of case law which acknowledges that if you accept public benefits you have to comply with the rules of the benefit programs in order to retain those benefits. People receiving SSDI/SSI have to spend down their assets or forego other types of employment if they want to retain their benefits. People who are receiving aid under Section 8 have to comply with the programs guidelines and re-certify economically periodically. Arguably, both require a person to forgoe property rights that they might have had by earning additional money (i.e. a Fifth Amendment taking does not occur).

While I don't have brief ready to go to court on this one, I am sure some well-qualified attorney over at the San Francisco City Attorney's office is already putting together the case law to write one up on this issue. Basically, I think the NRA is not going to get the law struck down like they think they will.

And the UN takes another step towards irrelevancy

In case you had not heard the latest bit of lunacy from the UN, apparently a new rule was adopted recently by the UN Human Rights Council. Apparently, it has decided that it is no allowed to criticize the practices of any religion.

Incidentally, the rule was proposed by the Pakistani (a predominantly Muslim country) representative to the head of the council, a Nigerian (a country where a large portion of the country is subject to Sharia law heard by courts of Islamic mullahs), and supported by Egypt and Iran.

That's nice. So being unable to criticize, apparently in any form, practices of any religion, the Council can no longer really deal with issues such as genital mutiliation, stoning, and child marriage. Interestingly enough, all issues which are practiced (to some form or another) by reactionary Islamic nations such as Iran, unstable Islamic nations such as Pakistan, and authoritarian dictatorships like Egypt and Saudi Arabia.

I guess with all those pesky issues out of the way, the UN Human Rights Council can get back to important issues, like condemning Israel for defending itself against outlaws who want to indiscriminately kill its citizens. Nice to see their priorities are in the right place.

Oy! My Head This Week From All the Supreme Court Decisions

So, as anticipated, with the end of term approaching, the Supreme Court has been releasing its decisions in the most controversial cases. Since I have to actually try and work (more so since I just got back from a little trip) I am still putting my thoughts together on some of the cases that picque my interest.

However, I saw today that the Supreme Court ruled 5-4 in District of Columbia v. Heller. Essentially, the majority held that there is an individual right to gun ownership and that blanket bans such as the ones in the District of Columbia are unconstitutional.

Now, I am not a gunowner. When I read the 2nd Amendment, I see that there is a provision for a well-regulated militia and an individual right of the people to bear arms so that there is a militia. However, I am also some one who lives in the 21st Century and realize that well regulated militias no longer drill on the town green ever few weeks before heading off to the tavern for a few pints of beer (which the locality would pay for usually in exchange for showing up for the drill).

Therefore, it would seem that the Court got this one right (I'll tell you more when I finish reading the opinion). However, this does not mean an end to gun regulation.

Now, some people would tell you that any regulation on firearm ownership is just wrong. But I think there is an opportunity to do some things that would both respect the rights of gun owners and assuage fears on the left of guns flooding the streets.

My initial response is to propose that there be some additions to the state statutes. One of them making it a felony to lose control of a weapon that is stored that does not have a trigger lock. Another would be a statute making it per se negligence to own a firearm without first attending a firearms safety course. You want to exercise your right to have a weapon, fine, you have to be responsible for it.

Most gun owners I know are actually very responsible people about their weapons. However, I do remember some idiots from when I was growing up. I think the goal, when it comes to personal ownership of firearms, should be to make sure that people understand the gravity of exercising that right, not trying to prohibit them from exercising it.

Of course, this could all change after I finish the decision and dissent.

So, I Can't Sleep And Then I Read This...

I was reading over at TortsProf Blog about the a recent report issued by the publication, Directorship talking about which states have the best "litigation climates". And as I was reading the article, I came across this:

The Guide is a collaboration of Directorship and the American Justice Partnership (AJP), a coalition of more than 70 state and national organizations that work together to achieve tort and other business liability reform at the state level through legislative action and public support for pro-reform candidates for state office.
Why the mobilization? Trial Lawyers Inc. has created nearly a trillion-dollar tort industry. If America’s tort system was a country and tort awards were its gross domestic product, our tort system would be the 17th largest economy. The total direct and indirect costs of our tort system are $865 billion annually; Australia’s GDP is only $24 billion more than this.
Then there’s the danger of the “litigation trifecta.” The first stage was asbestos lawsuits, the longest running mass-tort category in history. The second stage was the $265-billion national tobacco settlement between states and tobacco companies. The R&D arm of Trial Lawyers Inc. hopes to cash in on the third stage of the trifecta: global climate-change litigation. If the plaintiffs’ lawyers hit the “litigation trifecta,” U.S. tort costs could soon exceed Russia’s GDP of $1.2 trillion.

Let's think about this paragraph for a second. Or rather, what they are trying to say. First, they start off by decrying the costs to their target audience, saying how bad things are for corporate America because of the U.S. tort system. They point out how much money has been paid out in judgments and settlements, as well as the costs of defending the cases. Then to show how truly horrific these numbers are, they compare them to the GDP of Australia.

Of course, a lot of the numbers to support the alleged "tort crisis" which are used come from a study which has been repeatedly reviewed and found to be inaccurate. Included in the numbers are the administrative costs for insurance companies (i.e. rent for their offices, employees on staff, and etc) and the costs of auto accidents (paid for by a driver's premiums).

There is always room for improvements to the system. We do need to take a look at some of the tort actions which we as citizens allow to be filed every day in almost every jurisdiction of this country. But then, they try and point out the evils of some of the largest tort groups going on in various states: asbestos and tobacco.

Why has asbestos been going on for so long? Could it be that asbestos was used in so many different types of products? That asbestos was used on virtually every ship manned by members of the U.S. Navy and Coast Guard during World War II, Korea, Vietnam, as well as all throughout the numerous other small actions that made up the Cold War? That it was even used by a tobacco company as filter for a brand of Kent cigarettes?

What the article conveniently omits is that asbestos industry brought this on themselves. From as early as 1935, with the Saranac Lab studies, as well as Johns Manville's own testing, it was known that inhalation of the fibers could cause pleural plaques, asbestosis, and possibly cancer. Earlier studies from Britain at the beginning of the twentieth century had already revealed a link between asbestos fibers and respiratory problems and deaths among asbestos miners and workers. Fearing that they might lose their profits, or be sued, the companies and their insurers decided to alter the report of the Saranac Lab when they published it. They covered up other studies which confirmed the earlier ones... because they looked only at the profits they were reaping.

Terrible now that those companies and their successors are being sued for their actions.

The second example of the horrors of the mass tort litigation is the tobacco industry. That's right, saying that the poor tobacco industry has been hurt by plaintiff's attorneys and various state attorney generals pressing suits against the tobacco industry. The cost in terms of health-expenditures alone for smoking has been variously estimated at being around $55 billion to $75.5 billion a year. Did the smokers bring on these? To an extent they did. On the other hand, the companies which produce the cigarettes have agressively marketed their products, that they knew their products were addictive, and that they caused cancer. However, the tobacco industry, instead of doing something other than making money off addiction, did everything in its power to undermine studies, and cover up what it knew about the health effects of their products.

Apparently producing a product which you know to be harmful, which causes a great amount of harm, should be rewarded by insulation from further law suits. Ok.

Then the authors of the report go into their top states, the ones which they believe are the best for corporations. However, even the states which they believe to be the best for corporations under this "litigation climate" are worrisome for them. For instance,

1. TENNESSEE
Moving up from 11th place in last year’s rankings, Tennessee is now the top-ranked state. Pacific Research Institute’s 2008 report listed Tennessee as the state with the lowest litigation risks in the country. While the state’s liability climate encourages growth and job creation, it’s also a state to watch because its tort laws do not place limits on non-economic and punitive damages and there are someplaintiff-friendly venues in Tennessee. The state Supreme Court is considered neutral on liability issues.

The key here is that the authors are applauding the ones where corporate America will face the least cost in litigation. In reading the article, the methodology seems to be placed heavily on the question of "how much can a corporate wrongdoer expect to pay if they do wrong."

Now, I know, not every corporation is evil. Not every plaintiff is an angel. However, where someone does wrong, why should they not be placed at risk for their actions? Why should we limit punitive damages in the way that U.S. Supreme Court has fashioned over the past decade? Punitive damages, based on number which I can find right now, were calculated at being awarded in only 1 to 4% of all civil cases.

When looking at the numbers for tort actions (which is really what the Directorship "study" is about), the numbers indicate the juries and judges award punitive damages in approximately 5.3% of the cases filed. Interestingly, when businesses sue each other, the number goes up a bit to 5.8%. The average punitive award in a tort case was (inflation adjusted average) $50,000. In cases based on contract action (typically corporation vs. corporation) punitive awards were typically $83,000.

Let's see, studies by the DOJ and others show that tort actions only produce the rare punitive damage award averaging $50,000. Then we have Directorship, along with the misnamed American Justice Partnership and the American Tort Reform Association fanning the fears of uncapped punitive awards.

Not only do they want to limit punitive damages, but they also seek to limit what are referred to as "non-economic" damages. That is what people who have been injured call the pain and suffering which they go through. However, they are more than that. They include damage claims for permanent disability.

One of the more commonly cited examples of a success is California's MICRA law. This law caps recovery for injured people in medical malpractice cases to $250,000. Sounds like a lot. However, when you consider that this is the most someone can recover for a life-long injury, its really not that much. Furthermore, since the law was passed in 1975, the cap has remained the same. $250,000 in 1975 was a lot of money. Were it to be adjusted for inflation, that cap should be $1,006,654.28. Unfortunately, no such provision was included. And every year, the insurance industry reaps the benefits while the people injured by medical malpractice are forced to try and stretch out the cap limit even further.

Getting back to the tort-reform groups, these organizations, like all others, represent an interest group. In this case, these organizations are representing the people who by and large are the targets of plaintiff's suits: corporations, manufacturers and etc. They argue that people are better served by allowing these groups to be able to have certainty when it comes to forecasting their own wrongdoing.

From my perspective, this is simply nuts. We live in a society where the implements which we use have become so complex, that it is simply impracticable for us not to turn to corporations to produce them. A century ago, the pharmaceutical industry was competing with doctors and pharmacists for control of the drug market. A century ago, it was not necessary to have a computer, all that was necessary was a pen/pencil and paper to do much of what would be necessary to operate a business.

Now, corporations have an interest in keeping their customers happy. However, they also have a greater interest in keeping their bottom line healthy. In the past when corporations have felt able to plan out how much they can expect to incur in litigation costs when determining whether to make a safety improvement, the result is a situation like Ford Pinto litigation.

The only way that consumers, individuals, in this era can protect themselves from being taken advantage of is by being able to assert their rights. Not only must individuals have the ability to assert their rights in court, but they must also have the ability to seek to civilly punish a wrongdoers. The only thing that hurts a corporation is money. Since that is the one thing about which a corporation ultimately values, it stands to reason that the deterrent effect of lawsuits is a valid one.

Of course, tort reformers, argue that what law suits really do is simply inhibit corporations from doing more innovative things. Maybe. However, what is to protect the end-user, or even the bystander when that new innovation proves to be half-baked? The government can only regulate so much, or else the free-market will cease to be free. Furthermore, it depends on the government to fully fund and support the agencies which enforce the regulations in order to make that work.

The better course would be to allow for people to take responsibility for what happens to them. If they feel that they have been injured, then they should press their own rights in court. If industries want to decrease their litigation exposure, maybe they should implement better practices which take into account something other than the bottom line. It would be in their own self-interest to do so.

Limiting a person's ability to seek compensation and redress devalues the people in our society. Are there abuses of the system? Yes. Are there cases that go unprosecuted because people choose not to press for their rights? Yes. Are there cases which result in unusual verdicts that seem outrageous? Yes, but when you get into the facts of the case, the verdicts make more sense.

Despite all the hoopla of the tort-reformers, the sky has not fallen. The sky is not going to fall. Bottom line is this: this report is just another piece of propaganda to solve a problem which does not really exist.

And people wonder why I despise IP law most days

So in the past, I have mentioned my dislike for IP law. Yes, I understand that it is important for the creator of something to be compensated for its use. However, I think that the way it is being abused lately, among other things, to protect vested interests over public discourse.

And the latest, if you have not heard by now is the AP's new policy. Apparently, if I were to quote from their article, which I am not going to anymore barring a change, it would cost me $12.50 for up to 25 words. Should I go whole hog, and say put in a paragraph or two totaling up to 100 words, I would be hit with a bill for $25.00.

As some people have pointed out, apparently the AP feels that they are exempt from the fair use laws in the U.S. Apparently, the AP feels that fair use is violated if more than 4 words is used from one of their articles.

Note: World Has Not Ended

Even though California has allowed two women to get married. And here I was promised brimstone... or at least the end of civilization. What a gyp!