Antis suing for pro-gun rights and intentionaly losing to set legal precedents


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Zoogster
September 19, 2008, 01:17 PM
I was wondering if examples of this can be found.

I know in politics a number of fake fronts are created to argue in favor of the very things founders and financial backers are against. They can then intentionaly present poor arguments or be in favor of compromises through the front organizations. Some of the fake fronts even get many real supporters that buy into the fake front and support it as thier voice.

This thread reminded me of that:
http://www.thehighroad.org/showthread.php?t=393743


So my concern is that it could be easier to defeat gun rights by pretending to be pro gun. Anti gunners could provide cheap legal services, or otherwise help out in gun cases with the intention of making the case go poorly. Clearly a lawyer intentional and clearly involved in that could lose thier license to practice law, but they would not have to be open about it and could say they argued the case to the best of thier ability.

Antis could also bring lawsuits against gun control bills, and the intentionaly set precedents in favor of that gun control.

It really is not that hard to imagine when they spend large sums and effort to create fake fronts and organizations already.

So what would be the best way to combat antis pretending to be pro gun in lawsuits and losing to set legal precedents intentionaly?
Clearly that could be an effective tactic for them (as it could be for us, who hired Fenty?) and would allow them to choose favorable jurisdictions and judges more readily than cases that naturaly arise. It is also much easier to intentionaly lose a case than to win one and to steer it in a direction that allows other legal statutes to prevail against you.

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Henry Bowman
September 19, 2008, 01:56 PM
Clearly a lawyer intentional and clearly involved in that could lose thier license to practice lawYep.

So what would be the best way to combat antis pretending to be pro gun in lawsuits and losing to set legal precedents intentionaly?File a motion to intervene as an interested party who rights are not being adequately represented by the current plaintiff.

deaconkharma
September 19, 2008, 11:15 PM
way to stay on top of it man! I nevder would have thought of that but the crazy anti's I am sure to some of them being disbarred would be a badge of honor... This idea really intrigued me of yours. I really wouldn't put it past them. We probably should keep an eye out. We saw what terrible damage was done by a case like Miller when the defense wasn't even represented... wouldn't be a far shot to think that this sort of thing could be "arranged"...

Tribal
September 20, 2008, 12:27 AM
Henry Bowman is right. Your lawyer would have to be in the dark, as legal ethics would make it very, very hard to do very much if he knew in a case like this. Furthermore, if another group sees this and thinks your case is weak or your lawyer isn't good enough, they can seek to intervene and even take over. From what I've heard, this is what the NRA initially tried to do in the Heller case before finally coming around.

It's easier to use an astroturf (fake grassroots) campaign to attempt to influence the media and public opinion and go from there, probably through the legislature and executive branches. Your state senator and your governor aren't bound by the same set of ethics as a lawyer (that's not a values statement; legal ethics are simply different) and can do things an attorney ethically can't.

Frank Ettin
September 20, 2008, 01:02 AM
...Clearly a lawyer intentional and clearly involved in that could lose thier license to practice law, but they would not have to be open about it and could say they argued the case to the best of thier ability.
But the work of the lawyer in question would be subject to the scrutiny of other lawyers. It would be apparent if he "took a dive."

Zoogster
September 20, 2008, 02:36 AM
But the work of the lawyer in question would be subject to the scrutiny of other lawyers. It would be apparent if he "took a dive."
Maybe, but what would they do even if they believed that was the case? File a complaint with the state BAR association?
The lawyer in question could certainly counter any such complaint, and would likely have the benefit of the doubt to have not acted unethically.

After all choosing to argue a case based on points that are valid but likely to be defeated or will result in a 'compromise' (gun control victory and precedent) rather than on those most likely to give the greater victory to gun rights would not be easily proven to be intentional.

Other lawyers having a strong suspicion is not grounds for terminating thier ability to practice law. That would only be likely if they commit actions blatantly contrary to what would be fair representation. Such blatant actions are not necessary to steer a case to a desired 'compromise' or to intentionaly choose 'valid' legal arguments that are simply less likely to prevail.
So absent such blatant actions, all the strong suspicions in the world would not likely keep them from practicing law, and as such not be a strong deterent for those inclined to manipulate the system and set strong gun control precedents with such tactics.

Frank Ettin
September 20, 2008, 02:49 AM
Zoogster, are you a lawyer? I am. IME, the Bar wouldn't have a whole lot of sense of humor about throwing a case in the way you describe, and I think any attempt to do so would be apparent.

TAB
September 20, 2008, 03:16 AM
I'm not a lawyer, but My understand is a lawyer "throwing the case" would be grounds for apeal.

Correct me if I'm wrong.

Cosmoline
September 20, 2008, 03:19 AM
The system is set up to prevent this sort of thing. I wouldn't say it's *impossible,* but it's extremely unlikely and would entail enormous risks. Not just for the attorney pretending to work for one client while working for another, but for the payor. It would constitute both civil and criminal fraud, plus a half dozen other torts and crimes.

Moreover, whatever bad things you want to say about us lawyers, this business of "taking a dive" to screw over a client cuts so deep against the grain that you'd be hard pressed to find any attorney, anywhere, willing to do it. Even a drunk one in a sleazy motel on his last dimes. They'll take a dive to *BENEFIT* a client, as criminal counsel sometimes does to create an ineffective assistance claim. But that's a question of sacrificing yourself to HELP a client, not hurt them.

The only risk I can see, realistically, is a false "pro gun" front organization trying to file amicus briefs or otherwise mess with existing litigation on its own.

Aguila Blanca
September 20, 2008, 03:37 AM
Cosmo, I don't think the OP was suggesting that an attorney take a hidden paycheck from a second (third?) party to misrepresent his client. I think what he's asking is, if I am an anti- and I'm in favor of the gun ban in San Francisco, what's to stop me from filing a lawsuit against San Francisco claiming that my rights are being trampled, but in fact intentionally putting on a weak case in the hope of losing in order to establish a precedent, thus cutting off a stronger (and more legitimate) case at the pass.

Cosmoline
September 20, 2008, 03:53 AM
Precedent doesn't come from parties, it comes from appellate courts. In the case of SF, you'd have to get up to the 9th and somehow put on this charade in front of he judges. I don't think they'd take kindly to it. Besides they're perfectly free to ignore your nonsense and come up with their own ideas about the law. They do it all the time.

jonmerritt
September 20, 2008, 11:10 AM
You would be rejected from the BAR

bogie
September 20, 2008, 12:02 PM
So they find someone sacrificial...

JImbothefiveth
September 20, 2008, 01:01 PM
Also important, could WE sue for greater gun control, and fail, to set a legal precedent? We'd have to be careful though, maybe the judge could be very anti. It might also be illegal, though, in which case we shouldn't do that.

mgkdrgn
September 20, 2008, 01:09 PM
I'm not a lawyer, but My understand is a lawyer "throwing the case" would be grounds for apeal.

Correct me if I'm wrong.

It would be, but the party making the appeal would have to be the orig plaintiff. As they WANTED to loose, I can't see any reason why they would appeal.

BruceRDucer
September 20, 2008, 06:28 PM
Yep. It's ideological piracy.

It pre-empts the advocacy of 2nd Amendment activism, then trashes it.

It's a brilliant strategy though.

Honesty is something some groups cannot comprehend.

:scrutiny::scrutiny:

Zoogster
September 21, 2008, 04:36 AM
It would be, but the party making the appeal would have to be the orig plaintiff. As they WANTED to loose, I can't see any reason why they would appeal.
I can. As I said earlier one could choose a valid legal argument that is designed to lose. It can be designed to lose at the Appellate level.
The stances of some Appellate courts are well known, and some much less favorable to firearms. While the lower courts within a district can vary greatly.
So if one wanted to really hamper firearm rights they could argue a perspective likely to win at the lower level on valid grounds, but which would ultimately fail in the Appellate courts.
The stances of some of the Circuit courts can be very firm, with much greater variation at the local level.
So for example a case can be tried in a local pro gun portion of CA, and then will end up heard in the 9th circuit, which is much less favorable to firearm rights than some other circuits.
Since the position of the different circuits is easy to research, the outcome is highly predictable.

So you can easily design an argument to win at the lower level that will lose based on known views at a higher court, creating your desired precedent.

While the opposite could be done in say a 'liberal' city in Texas. One could create an anti gun argument that would be likely to win localy, but lose at the Appelate levels, and be tried in the more pro gun 5th circuit. Manipulating to create the desired precedent.

So the best pro gun precedents will likely come from anti-gun local areas eventualy heard by pro rights leaning circuits. While the worst anti-gun precedents will likely be from pro gun local areas, eventualy heard by more anti leaning circuit courts.

Arguably that is what happened with Heller. The 4th Circuit is pretty good and includes several pro gun regions, but DC is a very anti local area. So a very anti local area created an ideal case to be heard in a more pro rights circuit court.
The worst case scenario for bad precedents would be very pro gun local places overseen by anti leaning district courts.

You can look at this map and imagine which regions encompass more anti or pro leaning views. You can then think of local areas within those regions that have the opposite views. Those are where the biggest precedents would likely stem from.

http://www.uscourts.gov/images/Circuit-Map-outlined-rs2.gif

Zoogster
September 21, 2008, 05:30 AM
Quite frankly some of those districts are rather scary. You must remember to think in terms of population. The entire state of AZ for example has fewer people than the single county of Los Angeles, which is just a small portion of CA.

To think a lot of Judges with mindsets more commonly found in CA (Or Seattle, WA) will eventualy hear gun related cases from places like Idaho, Montana, or Arizona (not to neglect Nevada or Oregon) and even Alaska if they make it up the chain means the gun rights of those places is not very secure. The majority of the population in that region is CA based, and the representation and mindsets also CA based.

Looking at that map I would say the 5th and 11th Circuits should be the best for gun rights, though you would need to look at the individual judges serving in the districts to accurately say such things with certainty.
Some include equal pro and less pro rights areas.
While places like VT or NH could find thier laws tried mainly by representation stemming from more populous MA/CT or NY respectively. So even though they are very pro gun, thier rights would appear less secure.

Of course the SCOTUS trumps them all.
Definately something gun owners should think about.

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