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Friday, July 31, 2015

The Campaign against the 7th Amendment right to trial by Jury

I believe that the right to a Jury trial in Civil trials is a fundamental right that ought to be up to the discretion of the litigants and not the judges. And I believe that the 7th Amendment establishes that right. I also believe that it is our Justices and Legislators who are infringing on that right by denying people access to Jury trials, illegally reducing their findings of fact on Jury awards, and using "standing" arguments to deny due process in civil proceedings.

In my blog entry "Jury Trials, Judicial Tyranny and the Seventh Amendment" [] I was talking about the principles of the 7th Amendment and Common Law. I was focused yesterday on the meaning of the 7th amendment, how it's been interpreted over time, and while not as a lawyer (I'm not one), how it should be a fundamental right. When Courts overturn Jury verdicts and jury awards they are doing something unconstitutional as far as I can tell. I read up on all the excuses, and when I first started reading about such cases I bought those excuses. But on further reflection I've realized that that is all they are, they are excuses, and when higher courts overthrow "findings of facts" by a Jury they are violating the Constitution's 7th amendment:

"no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law."

As far as I can tell their only excuse for doing so is from parsing that same common law. Likewise when courts deny litigants a trial:

"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved"

People have a fundamental unalienable right to Trial By Jury. And denying that right to litigants for any reason, parsing the meaning of "common law" or changing the limit of $20.00 to $75,000.00, is to me, unconstitutional. I talked about that in "Jury Trials, Judicial Tyranny and the Seventh Amendment". Today I want to pick up where I left off with the first of three subjects:

Denying Access to Civil Trials
Overturning Verdicts on Specious Grounds
Using abusive litigation to punish victims of abusive judging

Denying Access to Jury Trials in Civil Court

Aurora Theater Shooting

A lot of the "Gun Regulation" folks have focused on the gun control issues and the apparent corruption of the judges involved. But to me the issue is broader. Judges have been interjecting into legal disputes for centuries. The real issue is that when they do they corrupt the process. We have a real gun violence issue, and those damaged by gun violence, naturally want to sue. In this case the proximate cause of the lawsuit was the fates conspiring to murder a young lady named Jessica Ghawi who had escaped a mass shooting in Toronto only to be mass murdered in Aurora Toronto. In July 2012 there was a Mass Shooting in an Aurora Colorado Theater. Shootouts in the Rocky Mountains have become so common it's hard to keep track of them. but the headling: "Theater Shooting Adds To List Of Violent Colorado Incidents" says it all:

"The Dark Knight Rises in the city of Aurora, was the state's worst mass shooting since the 1999 Columbine High School massacre in Littleton" [Aurora Theater Shooting]

Naturally the family reacted the way families ought to react. "There ought to be a law!" "Who should I sue!" They appear to have looked up the Brady Center, which has championed this cause all over the country:

The Brady Center's efforts center on changing culture, laws and also in using the tort system:

"The decisions by bad actors in the gun industry to engage in reckless and dangerous practices is one of the primary drivers of gun violence in America. Litigation led by the Brady Center’s Legal Action Project has revealed that the industry knows that their sales practices put guns in the hands of gang members, domestic abusers, and other dangerous people. Gun manufacturers know that roughly five percent of gun dealers (the “bad apples” supply 90% of guns used in crime, many through sales to straw purchasers and traffickers – but manufacturers and dealers choose to profit off the criminal market rather than take responsible actions to protect public safety. Instead, they’ve successfully lobbied Congress to provide them with broad immunity from civil liability, and prohibit the release of crime gun trace data that would expose “bad apple” gun dealers and the manufacturers and distributors that supply them." [Brady Center Campaign]

And they are trying to use civil courts to do this:

"Brady is leading the fight to change the gun industry and force it to reform by holding gun companies accountable to victims in the courts, and staging protests to challenge “bad apple” gun dealers at their doorsteps. Learn more about the Brady Center’s Legal Action Project and the campaign to Stop Bad Apple Gun Dealers."[Brady Center Campaign]

In 2013 the Brady Center could boast:

"The Brady Center’s Legal Action Project wins victories against bad apple gun dealers in appeals courts in Alaska, Kansas, and New York. Each state court set precedent to make it possible to hold gun dealers accountable for recklessly selling guns to dangerous people."

That case proceeded out of someone who had bought a gun by skirting laws like the Brady Bill, which aims at limiting gun purchases to those who can safely and sanely bear them. The suit was justified by a "bad apple gun deal" that the carelessness and greed of some gun dealers had made possible. It is this that the Brady center is seeking to fight.

"The murder of eight-year-old Zeus Graham (left) with a straw purchased gun is the subject of the Brady Center’s case in Kansas." []

Of course they face an organized, determined and well funded opposition. In 2014 they took the Ghawi case to court. Hoping to repeat their 2013 victories:

In September 2014, the Brady Center brought suit on behalf of her parents against Lucky Gunner LLC, Sportsman's Guide, and two other vendors for "failing to screen the gunman and making it too easy for him to buy ammunition, tear gas and body armor." [Guns&Money]

But what they run up against are Cons who claim to be conservative, but really don't care about the conservative causes of rule of law or the other basic things that are worth conserving in our system. The Brady Center brought the suit on their behalf. But of course the courts resist treating "jury trials" as a right for class actions, so the Brady Center has been bringing individual suits around the county. They hoped that they could follow up on their victories in the Zeus case. The Lucky Gunner folks describe what happens this way:

"to outlaw the sale of ammunition online by judicial decree. After several months of spending our own money defending the lawsuit, it was dismissed and the judge awarded us $111,971.10 as a partial reimbursement for our legal fees." [brady-v-lucky-gunner]

There is a fundamental disconnect here because on the one hand the Brady Group is trying to get online weapons-sales folks like the Lucky Gunner folks to either do good quality background checks or cease and desist. On the other hand the Brady Group is trying to accomplish a public good and policy change using the courts. Something that has been part of our political discourse since the Colonists in the British Colonies used courts to pursue their rights vis-a-vis the Crown prior to the American Revolution. As I-forget-who-said it said it's better to Jaw-Jaw than start a shooting war. But the Judge prefers the bullets:

"It is apparent that this case was filed to pursue the political purposes of the Brady Center and, given the failure to present any cognizable legal claim, bringing these defendants [Lucky Gunner] into the Colorado court... appears to be more of an opportunity to propagandize the public and stigmatize the defendants than to obtain a court order." [brady-v-lucky-gunner]

But a look at the complaint tells a different story:

"The lawsuit names Lucky Gunner (, which allegedly sold Holmes over 4,000 rounds of ammunition; The Sportman’s Guide, which allegedly sold Holmes a 100-round drum ammunition magazine and 700 rounds;, which allegedly sold Holmes multiple pieces of body armor; and BTP Arms, which allegedly sold him two canisters of tear gas, as defendants." []

These businesses sold these weapons and ammunition without background checks or even doing "due diligence" on whether this was a sane order. The result was predictable. I doubt the Judge and the RW Gun Nuts would have reacted that way if a Muslim had purchased those weapons. But in this case it was a White:

“...crazed, homicidal killer should not be able to amass a military arsenal, without showing his face or answering a single question, with the simple click of a mouse,” said Jonathan Lowy, director of the Brady Center’s Legal Action Project and co-counsel for Sandy and Lonnie Phillips. “If businesses choose to sell military-grade equipment online, they must screen purchasers to prevent arming people like James Holmes. Sandy and Lonnie Phillips have brought this lawsuit to make sellers of lethal arms and military equipment use reasonable care.” [[brady-center-sues-online-sellers-of-ammunition-and-equipment-used-in-aurora-movie-theater]]

To the Judge this was an outrageous misuse of the legal system. To them it doesn't matter that someone is injured and is seeking redress:

“Two years ago when our daughter Jessica was murdered, and we first heard the details of the massacre, I asked my husband: ‘How can anyone order over 4,000 rounds of ammunition without raising any red flags? Why weren’t any questions asked of the person who bought all of this ammunition?” said Sandy Phillips. “As gun owners, parents, and citizens of this country, we hope that our lawsuit will spare other families the tragedy that we have gone through after the death of our beautiful daughter.” [brady-center-sues-online-sellers-of-ammunition-and-equipment-used-in-aurora-movie-theater]

The Thing is the Judge never looked at the merits of the Case.

In the complaint they note:

"This Court has jurisdiction over the claims in this case pursuant to Colo. Rev. Stat. § 13-1-124 because Defendants conducted business and committed tortious acts in the state. 16. Venue is proper in this Court pursuant to C.R.C.P. 98, as it is a county where Defendants regularly conduct business and where Plaintiffs were injured. " [PhillipsvsLuckyGunner Complaint]

But here is what is most important:


So to me the issue isn't whether the action was "political". That has nothing to do with whether an action for injunctive relief is actionable. What makes it actionable are the facts of the case and the evidence. The Judge violated the 7th Amendment guarantee that folks have a right to a Jury trial when he dismissed the case and awarded legal fees to the defendant's lawyers. That is a decision that is suppoted to be up to a "trial by a twelve person Jury."

"It has long been established that the calculation of the amount of compensatory damages for noneconomic injury, such as pain and suffering, is a question of fact reserved for the jury. The Supreme Court holds this function of a jury in high regard, and jury fact-finding on damages, if supported by the evidence, cannot be simply thrown out. In fact, outside of certain narrow circumstances, any reexamination of jury awards raises Seventh Amendment concerns." [AJS]

It wasn't supposed to be his call and what he did was unconstitutional. And he's doing this along with a lot of Judges across the country. I suppose the decision came as a surprise to the Brady Group as U.S. District Judge Richard P. Matsch had been the judge in the McVeigh Case. But more importantly the Statute he ruled on the case by is unconstitutional:

"(1) A person or other public or private entity may not bring an action in tort, other than a product liability action, against a firearms or ammunition manufacturer, importer, or dealer for any remedy arising from physical or emotional injury, physical damage, or death caused by the discharge of a firearm or ammunition." [Case Record]

Which was his real excuse for dismissing the case. But this is unconstitutional if one understands the 7th amendment as guaranteeing a right to a jury trial:

"the right of trial by jury shall be preserved" [Constitution 7a]

But of course for lawyers and other officials insistent on enforcing laws that are oppressive, this is "optional."


Now I'm not a lawyer so my understanding of both is as an educated layman and my opinions are based on that education and principles I've learned in the "School of Hard Knocks" as much as in classrooms and online readings. When I say that we have a fundamental right to the courts, to Jury trials, and to sue for redress of grievances, I'm just stating a principle that has been articulated for at least 600 years and probably a lot longer. Like all principles it is unalienable and it is fundamental. It's not a left-right thing, but it is a legally conservative and yet radical view and it is a principle that we need to enforce on our legal community.

Back when Juries were protecting police (oops they still are), and local thugs, Conservatives were adamant about the right to Jury trial. Legitimate Conservatives with integrity still are. This is a bigger issue than the 2A battle. What good is it to protect the Second Amendment while courts are allowed to invalidate or corrupt the other protections we have? Are we going to take on the American Marines or the USA Army with our own assault riffles? Or is all the talk just designed to get folks scared and angry so the cons can steal from them. I don't know why but I have my own opinions. I have a lot more to say but this is enough for now. The Con Lawyers will probably quote from various decisions parsing the Common Law and tell me how wrong I am. I might be. I'm speaking about what ought to be not what is.

Further Reading

Jessica Ghawi
Guns and Money (NRA) Blog:
Brady Center Campaign:
Lucky Gunner:

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