But What If…

Knife Rights put out a release this past Friday that I didn’t notice until Monday. In it, they discuss the arrest for having a “concealed switchblade” of Freddie Gray in Baltimore. I have posted the release below along with the links.

Knife Rights brings up some interesting points and makes me say, “What if”.

What if Freddie Gray had not been arrested.

What if police treated all knives like ordinary tools.

What if knife laws weren’t based on a 1950s West Side Story myth.

What if the knife hadn’t had a clip – would he still have been stopped.

I’m not saying Baltimore wouldn’t have erupted in the not so distant future. They will always be more incidents that the hucksters and their complicit media allies will play up. I am also not saying that Freddie Gray might not have been arrested for something else. I am saying that policies, laws, and ordinances the encourage the police to stop anyone with a knife that has a pocket clip are flawed, out of date, and unreasonable.

May 1, 2015 – Gilbert, AZ: In the case of the arrest on a knife charge and subsequent death of Freddie Gray in Baltimore, Baltimore City State’s Attorney Marilyn Mosby charged that Freddie Gray was falsely arrested and that the knife in his pocket was not an illegal switchblade. Mosby is filing murder charges against one officer while others are being charged with crimes including manslaughter and assault.

According to news reports and court documents, Freddie Gray was arrested after a police officer supposedly found a “switchblade” in his pocket. But, the court documents (click to review) reveal something else: “The officer noticed a knife clipped to the inside of his front right pants pocket. The defendant was arrested without force or incident,” the documents say. “The knife was recovered by this officer and found to be a spring-assisted, one-hand-operated knife.” (Emphasis added.) Note that the officer did not refer to the knife as a “switchblade.”

Maryland law (§4–101) prohibits concealed carry of switchblades, but open carry and possession are not illegal. The court documents state that the knife was visibly clipped to Gray’s pocket. Therefore, it was not concealed, and accordingly not illegal, even if it had been a switchblade. But, it clearly wasn’t even a switchblade according to the court documents — it was an assisted-opening knife (meaning that the blade had to be opened manually part way before the spring assist was engaged and opened it the rest of the way).

Maryland does not have knife law preemption, so municipalities such as Baltimore are allowed to fabricate laws more restrictive than the state itself. Baltimore’s city code (§ 59-22 Switch-blade knives) prohibits the sale, carry or possession of “any knife with an automatic spring or other device for opening and/or closing the blade, commonly known as a switch-blade knife.” While it might be possible in theory to interpret that unusual definition of “switch-blade” to include assisted-opening knives, such an interpretation would conflict with virtually all other switchblade definitions throughout the country. Additionally, the court documents show that the arresting officer clearly knew it was not a switchblade; the officer easily could have referred to it as a switchblade instead of accurately describing it as a “spring-assisted, one-hand-operated knife.”

While it is theoretically possible that without the presence of a knife in his pocket, Gray might have been arrested on some other trumped-up charge, it is clear that the presence of a knife was used as the actual basis for the arrest, and the practice has unfortunately become a common one.

Thousands of law-abiding citizens are regularly harassed and arrested for nothing more than carrying this basic tool, and that is unacceptable. Knife Rights is committed to forging a Sharper Future™ by passing knife law preemption and removing all restrictions on the lawful carry of knives. Those who misuse any tool (knife or otherwise) in the commission of a crime should be severely punished, but law-abiding citizens who possess knives should be left alone.

Charging Documents in Freddie Gray Case: http://www.kniferights.org/263171878-Freddie-Gray-Charging-Documents.pdf

Maryland Switchblade Law: http://mgaleg.maryland.gov/webmga/frmStatutesText.aspx?article=gcr&section=4-101&ext=html&session=2015RS&tab=subject5

Baltimore Switchblade Law: http://baltimorecode.org/19/59/59-22/

As a final aside, I met with a client yesterday who always brings me inexpensive knives as a gift.  The knife I got yesterday had a clip and was a switchblade.

UPDATE: Attorney Andrew Branca has an excellent post up at Legal Insurrection concerning probable cause and the arrest of Freddie Gray. He notes that whether or not the knife in question was actually illegal is irrelevant to the issue of probable cause. This reinforces my point that knife laws are so convoluted and so out of date that you probably could find probable cause to stop someone for carrying a Case Tiny Trapper which is all of 2 3/8 inches closed.

Bad Apple Lawyers – The Theorist

I had intended to start my series on Bad Apple Lawyers with the current head of the Brady Center’s Legal Action Project, Jonathan E. Lowy. However, the more I read, the more I was convinced that I needed to go back further to the law professor who helped initiate the use of lawfare against the gun industry with his novel legal theory. That professor is David Kairys of Temple University School of Law.

Kairys (right) after a recent lecture at Swarthmore College

Just as the Communist revolutionaries Lenin and Mao needed the theorist Karl Marx for their revolutions, so, too, did the tort attorneys need the theories of David Kairys for their attack on the gun industry in conjunction with anti-gun mayors. Kairys, who made his name in the 60s, 70s, and 80s as a civil rights lawyer, advanced the theory that gun makers and dealers could be sued on the grounds that they were creating a public nuisance through “irresponsible marketing of handguns”.

A younger Kairys (center) with his client Dr. Benjamin Spock (right)

According to Howard Erichson, in the book Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts, Kairys first brought his theory to the City of Philadelphia and then-Mayor Ed Rendell. In turn, he was hired to draft the complaint. However, just before Kairys and the legal team were to file the lawsuit, Rendell got cold feet in the face of criticism as well as his own desire to be governor of Pennsylvania. Kairys had to look elsewhere to peddle his theory of guns as a public nuisance.

That elsewhere was Chicago where Mayor Richard M. Daley was looking for a way to attack the firearms industry. By happenstance, Kairys heard that Daley’s city lawyers were making inquiries about his theory and he contacted them. Chicago used Kairys public nuisance theory as the centerpiece of the lawsuit that they filed in late 1998. Though Chicago had tough gun control laws, gangs and criminals were still obtaining firearms. Chicago contended that these weapons were coming from unscrupulous gun shops outside the city who engaged in dubious sales. To Kairys’ and Chicago’s mind, this constituted a public nuisance for which the city was entitled to stop.

Mass tort actions, especially those brought by plaintiffs’ attorneys (aka ambulance chasers), depend upon a large number of individuals harmed. When dealing with asbestos or tobacco, it was easier to find potential clients. However, when dealing with gun shot victims, there are many fewer and it was harder to line up potential clients. Thus the alliance with municipalities was critical for both the private plaintiffs attorneys who handled cases for New Orleans and other locales and for those who used Kairys’ public nuisance theory. By taking the focus off the individual and putting it on a mass group, the “blame the smoker” approach of defense attorneys is harder to employ. Erichson noted this in his essay for Suing the Gun Industry.

As a matter of causation, plaintiffs in individual gun cases have difficulty proving that different industry conduct would have prevented a particular victim’s shooting. Municipal gun lawsuits, by treating the harm on an aggregate level in terms of cost to the municipality, remove attention from any individual shooting and thus diminish the power of the defense arguments that focus on blameworthy victims, owners, or shooters. Thus, the public entity plaintiff in tobacco litigation is less vulnerable to to the defendants’ “blame the smoker” argument for contributory negligence, comparative fault, or assumption of risk, while the public entity plaintiff in gun litigation is less vulnerable to the defendants’ “blame the shooter” argument for superseding cause or for challenging actual causation.

In a discussion of the firearms lawsuits of the late 90s and early 200s, Kairys himself notes that the predominant legal theory of public nuisance was new. It was also a unique tort which had as its hallmark the incompatibility of the defendant’s conduct with the public’s rights. Normally, when one thinks of a public nuisance, you think of unkempt homes, air and water pollution, and crack houses. Kairys contended that firearms manufacturers intentionally saturated the market with small and, in his words, crime-friendly, handguns knowing that some dealers and distributors allowed diversion to criminals through straw purchases or outright illegal sales. He further contended that manufacturers knew or should have known who the problem dealers were due to requests for gun traces from the ATF.

Kairys laid out his theory in a number of law journal articles and book chapters. The quote below comes from his essay, “The Cities Take the Initiative: Public Nuisance Lawsuits against Handgun Manufacturers.”

The conduct that forms the basis of the claim is their distribution of handguns. The public nuisance is not handguns or criminals but those items in combination – criminals and youths with handguns – a combination that the manufacturers facilitate with full knowledge of what they are doing and of the consequences.

He said that three of the recognized grounds for establishing the public nuisance tort apply to the gun makers. First, they interfere with public safety given the criminal misuse of handguns. Second, he accuses them of reckless conduct by continuing to sell to distributors or dealers they “know” are doing the most harm. Finally, he says manufacturers’ actions are “unreasonable on the totality of the circumstances.” That is, there is no legitimate interest in criminals or prohibited persons getting guns and that the gun makers only care about their profits. He says that the makers could take “reasonable actions” by refusing to sell to certain dealers or distributors that they “know” are conduits to criminals.

Congress decided that both the public nuisance theory and product defect theory were flawed when applied to the firearms industry. They passed the Protection of Lawful Commerce in Arms Act in 2005 as a response to this misuse of the courts. Kairys railed against the law’s passage in an article in Slate in which he said the Congress and the President had given the gun industry “immunity from the rule of law.”

It was not only Congress that thought the public nuisance theory flawed. So too did the Illinois Supreme Court when it agreed with the trial court that the dismissal of City of Chicago v. Beretta was warranted. They said, in conclusion, that:

Any change of this magnitude in the law affecting a highly regulated industry must be the work of the legislature, brought about by the political process, not the work of the courts. In response to the suggestion of amici that we are abdicating our responsibility to declare the common law, we point to the virtue of judicial restraint.

Even with rulings like Beretta (above) and the PLCAA, the public nuisance theory is not dead. In the recently dismissed Phillips et al v. Lucky Gunner et al, the Brady Center and their associated attorneys still clung, in part, to this theory. They accused Lucky Gunner and the other defendants of violating Colorado and Aurora laws and ordinances concerning public nuisances. They also asked the court for an order “enjoining or abating the public nuisance.”

Kairys is 72 years old now. He graduated from Cornell in 1965, from Columbia Law in 1968, and took a LLM from U.Penn in 1971. In addition to his work on gun control, he is the editor of The Politics of Law: A Progressive Critique which is now in its third edition. As I alluded to in the first picture, he defended Dr. Benjamin Spock in a free speech case during the Vietnam War. He also has written a memoir of his days as a civil rights lawyer in Philadelphia fighting the Philly PD and Mayor Frank Rizzo called Philadelphia Freedom. He donated his papers to the University of Pennsylvania.

Kairys is married to Antje Mattheus. She is a German immigrant who came to the US in 1974 to work with the United Farm Workers Union. She has written about non-violent self-defense for Waging Nonviolence. Kairys met Mattheus when he represented her in a “post-demonstration incident with State Police.” Together they have been restoring Cresheim Farm in the Mt. Airy section of Philadelphia since 1988.

David Kairys’ contribution to the anti-Second Amendment forces was his theory on controlling gun makers as a public nuisance. It was the basis for many of the municipal lawsuits and is still being used by the Brady Center today in their “Bad Apple” lawsuits. It is a shame that a civil rights attorney who seemingly had great respect for the First Amendment and individual rights has so little respect for the Second Amendment. Unfortunately, that dichotomy is altogether much too common among so-called progressives.

Happy May Day

Today is May Day which is also known as International Workers’ Day. It was chosen as that by the Second International which was an organization of socialist and labor parties. Perhaps its most notorious member (or illustrious depending on your view of Communism) was none other than Vladimir Lenin himself.

May Day Poster, 1930

It used to be the day that you saw big parades of Soviet tanks and missile launchers in Red Square. Under the other Vladimir – Putin – that has been moved to World War II Victory Day on May 9th. The Russians plan to unveil their new main battle tank, the Armata T-14, at the massive parade.

May Day, Red Square 1964

And finally, in the stuff you find when looking for something else category comes this. I was following a link posted by Prof. David Yamane at his Gun Culture 2.0 blog about Jennifer Dawn Carlson’s article in the Wall Street Journal. Carlson is a sociologist at the University of Toronto who has written a well received new book on those who carry, open and concealed, entitled Citizen-Protectors: The Everyday Politics of Guns in an Age of Decline. This, in turn, led me to the location of one of her recent talks about her research.

How appropriate that one of the universities most associated with the left-wing has a research institute dedicated to the study of “the right-wing”.

The mission of the Center, which is housed at the Institute for the Study of Societal Issues (ISSI), is twofold: first, to identify right-wing movements, flesh out their twentieth-century histories (how they aligned and how they survived) while isolating their novel aspects in the 21st century; and second, to develop and apply principles of how right-wing thought, ideology and organizational capacities operate to understand the state of the contemporary Right and identify its likely directions and successes.

Their research collection includes files on the NRA, the Second Amendment Foundation, Gun Owners of America, and the Second Amendment Sisters. This is in addition to those other notorious right-wingers such as Cowboys for Christ, the PTL Club, and the Cato Institute. I guess Christians, cowboys, televangelists, and libertarians are all part of the mix they consider “right-wing”.