More Problems For The King Of The Bad Apple Lawyers

Jonathan Lowy, director of the Brady Center’s Legal Action Project, has run into more problems in Wisconsin. Just last month he and fellow Brady Center attorney Alla Lefkowitz were forced to withdraw from one of their “Bad Apple” lawsuits for violating Wisconsin Supreme Court rules. These rules dealt with attorney conduct with respect to pretrial publicity.

Now it appears that he may have done it again in the other case involving Badger Guns and Badger Outdoors.

Now an attorney for Badger Guns and Badger Outdoors, the West Milwaukee gun-selling operations sued by the officers, wants the Brady attorneys off the second case, citing in a new court filing “zealous and unethical trial publicity.”

A hearing on whether the Brady attorneys will be removed from the case is set for July before Milwaukee County Circuit Judge John DiMotto, who is now presiding over both cases. This second case was filed by Officer Jose Lopez III and former Officer Alejandro Arce, who were injured in a 2007 shooting by weapons sold by the gun dealer.

Brady attorneys Jonathan Lowy and Alla Lefkowitz are not licensed to practice law in Wisconsin, but were allowed to join both cases —as they have in cases across the country litigated by Brady. Milwaukee attorney Patrick Dunphy also represents the officers and former officers.

The permission that allows an out-of-state attorney on a case can be rescinded, and the attorneys for Badger Guns and Badger Outdoors are seeking a court order withdrawing the permission.

“The Brady Center’s conduct is inexcusable,” Brookfield attorney Wendy Gunderson wrote in a brief filed earlier this month. “Attorneys appearing before Wisconsin courts are here as a matter of privilege and charged with knowing the rules. The privilege has been abused, seriously affecting not only these two cases but countless others.”

Ms. Gunderson said the material posted by Lowy on the Brady Campaign website and in fundraising letters about Badger Guns with regard to the earlier case also could serve to prejudice the jury in this case. Gunderson submitted copies of the social media and fund raising letters to the court in a sealed filing.

Jonathan Lowy is one of the attorneys that I plan to feature in my “Bad Apple Lawyers” series. I am still gathering material regarding Lowy. Given his position as head of the Legal Action Project, Lowy must be considered the King of the Bad Apple Lawyers.

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.

Bad Apple Dealers? What About Bad Apple Lawyers

The Brady Center To Prevent Gun Violence (sic) has an ongoing project called “Stop Bad Apple Gun Dealers”. Ostensibly this project is meant to go after gun dealers who knowingly allow firearms to go into the hands of criminals, the mentally ill, and straw purchasers. In reality, the goal is to bankrupt mom and pop firearms dealers through extended legal action.

This project was the topic of a presentation by Florida attorney Cord Byrd at 18th Annual Firearms Law Seminar. Byrd discussed the Protection of Lawful Commerce in Arms Act, the statutory exceptions to the qualified civil liability immunity that it provides, and how the Brady Center is seeking to use state courts to pierce the veil of PLCAA’s immunity protection. Byrd then discussed the case of Allen v. Lock N Load where he is the defense counsel to the owners of Lock N Load.

The Protection of Lawful Commerce in Arms Act was passed to stop the many civil cases aimed at gun makers by anti-gun mayors. Congress explicitly called the use of the courts to attack the firearms industry “an abuse of the legal system.”  The act provided qualified civil liability protection to gun makers and dealer in both state and Federal courts from the criminal or unlawful misuse of guns and ammo. The law does provide specific exceptions to this qualified immunity.

(i) an action brought against a transferor convicted under section 924(h) of title 18, United States Code, or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted;

(ii) an action brought against a seller for negligent entrustment or negligence per se;

(iii) an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought, including–

(I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or

(II) any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of section 922 of title 18, United States Code;

(iv) an action for breach of contract or warranty in connection with the purchase of the product;

(v) an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; or

(vi) an action or proceeding commenced by the Attorney General to enforce the provisions of chapter 44 of title 18 or chapter 53 of title 26, United States Code.

It is the second and third exceptions that the Brady Center is using to try and pierce the veil of qualified immunity. They are trying to use state statutes on negligence and negligence per se to attack the gun dealers. Moreover, they are trying to use the third exception by claiming the dealer knew it was a straw purchase and then made a false entry into his or her bound book.

In the Lock N Load case, Benjamin Bishop used a shotgun to kill his mother and her boyfriend while they slept. The Brady Center alleges that Lock N Load had denied the sale of a shotgun to Bishop after he failed a NICS check whereupon Bishop came back with his friend Gerald Schwab who bought the shotgun. They then allege that Schwab sold the shotgun to Bishop. Because Schwab allegedly bought the shotgun while accompanied by Bishop, Brady lawyers contend that Lock N Load should have known this was a straw purchase.

It should be noted that BATFE found that Lock N Load did nothing wrong in this case. Moreover, the State’s Attorney for Pinellas County made the same finding.

In bringing these cases, the Brady Center attorneys are assisted pro bono by lawyers with large law firms. In this case, it is attorneys from the international law firm of White and Case which has 38 offices in 26 countries. It has US offices in LA, New York, Silicon Valley, Washington, and Miami. They have approximately 1,900 attorneys. By contrast, Cord Byrd is a solo practitioner in Jacksonville Beach, FL concentrating on civil litigation.

This use of pro bono attorneys from major law firms to attack the PLCAA has given me the idea for a series of blog posts. I will be profiling what I call “Bad Apple Lawyers”. These are the attorneys who either work for the Brady Center or for these major law firms who are, to be blunt, conspiring to steal our Second Amendment rights. It is past time to shine the light of day on these anti-civil rights attorneys. Fortunately, LinkedIn, Google, and the law firm’s own web pages give plenty of info about these attorneys.

I will be starting this series with Jonathan Lowy who heads the Brady Center’s Legal Action Project and who was just forced to withdraw from one of their cases in Wisconsin for violating Wisconsin’s rules of professional conduct concerning trial publicity