David Randolph Smith

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Lex et Scientia
[Law & Knowledge]
Tennessee Personal Injury Lawyer Blog : A Collection of Legal News and Commentary


Cornell West
"Injustice Anywhere is a Threat to Justice Everywhere"
January 25, 2012


Beavers the Betrayer
January 24, 2012

On January 12, 2012 Tennessee State Senator Mae Beavers, Chair of the Senate Judiciary Committee, introduced a bill, SB 2348, that (as the official "Bill Summary states)“[a]s introduced provides that the supreme court, circuit, criminal and chancery courts have no jurisdiction to determine the constitutionality of a statute properly enacted by the general assembly. - Amends TCA Title 4, Chapter 5 and Title 16.” 

This is not a joke. Senator Beavers actually thought that the Tennessee legislature could prevent their laws from being declared unconstitutional by the courts. On January 23, 2012 she withdrew the bill after howling criticism from both Democratic and Republican legislators. Her betrayal of the Constitution borders  on treason and is act of defiance of the oath she took to uphold the Constitution of the State of Tennessee.  Her take:" God is doing a lot of work in the legislature. It's really, really changed over the years." (Speech to Wilson County Christians United at 4:04).


A Tale of Two Trials
January 7, 2012.

    Trial 1: A tragic car wreck case. Plaintiff suffered quadraplegia when the car she was driving was t-boned by a speeding police cruiser that ran a red light at an intersection. The jury awards $35 million in 2006. Then the verdict is reversed on appeal because evidence that the victim had been drinking was excluded at trial.

    Trial 2: Now that evidence of the plaintiff's alcohol use was admissible, the case proceeds to a second trial in 2009.The jury returns a defense verdict. Plaintiff takes nothing. That verdict is then reversed on appeal because an overly zealous defense attorney plays to the heartstrings of the jury by arguing in final argument that drunk drivers should be kept off the road and telling a personal story of how one of his relatives died in a drunk driving accident. He also improperly argued that the police officer was a public servant with a taxpayer-funded salary. These improper arguments resulted in the Court of Appeals affiming the trial court's decision to grant a new trial to the plaintiff in an opinion handed down on December 16, 2011. Petraski v. Thedos, Individually and as Agent/Employee of the Sheriff of Cook County and Michael Shehan, Sheriff of Cook County (No. 09 L 2953, Ill. Ct. Appeal, 2011). Absent a settlement, a third trial will now be necessary. The court's latest opinion demonstrated how important it is for lawyers to reign in their personal feelings when litigating a motor vehicle accident case and instead focus on the relevant evidence and legal standards.


    "“I am a lawyer, but I am not a bad lawyer. I am not one of those trial lawyers”
    Rick Santorum, Centerville Iowa, Nov. 1, 2011
    January 6, 2012

    Rick Santorum closed his Iowa campaign for President by bashing trial lawyers and advocating tort and medical malpractice "reform." As the Des Moines Register announced, "Santorum backs tort reform in final push to campaign in all 99 Iowa counties." Santorum told Iowans, "I am a lawyer, but I am not a bad lawyer. I am not one of those trial lawyers." Yet when Santorum's wife, who was also a nurse and a non practicing lawyer, had a bad medical outcome from treatment from a Virginia chiropracter, she sued the chiropracter for $500,000 and obtained a jury verdict of $350,000 (remitted to $175,000). Santorum fought lowering the verdict (despite the fact that he sponsored legilslation in Congress to cap damages for pain and suffering to $250,000 in medical malpractrice cases. Here is his hypocritical brief. And when Santorum negligently failed to get on the Virginia ballot (by failing to submit enough valid signaturers) who did he turn to? Yes, a trial lawyer. Santorum filed to intervene in Rick Perry's lawsuit challenging Virginia's ballot access law. Yesterday the court granted his request. So while right wing "conservatives" like Santorum criticize trial lawyers, they know who to turn to when they need justice. Another example: Newt Gingrich' has now hired lawyers and who have threatened to sue TV stations for running Romney attack ads. See the above video, "A World Without Lawyers" that aptly makes the point. Here's a re-look at an ABC News Story from 2005 that highlighted Santorum's hypocrisy:


Legal News
January 5, 2012


926 People Died in Traffic Accidents in 2011 in Tennessee
January 2, 2012

Report in today's Tennesean. See our new webpage & video on Auto Accidents: http://www.drslawfirm.com/autoaccidents.html


Update to drslawfirm on-line legal research library
January 2, 2012

    Happy New Year! We have updated our online legal research collection. Five webpages with some real gems. (Link).


    Cellphone-related fatal wrecks lead families to push for change
    January 1, 2012.

    The Tennessean newspaper presents a compelling case for re-evaluating cell phones, texting and driving.(Link). In 2009 alone, nearly 5,500 people were killed and 450,000 more were injured in distracted driving crashes. http://www.distraction.gov.We have written about the serious risks and legal liability associated with distracted driving (here). More news.


    Driver’s marijuana use kept from jury
    December 31, 2011

    Although blood toxicology tests were positive for marijuana, a state Supreme Court ruled such evidence was properly excluded absent proof that the driver was "under the influence" at the time of the accident.(Link).


    Mother can sue for wrongful death of unborn child
    December 30, 2011

    A mother who gave birth to a stillborn male could maintain a wrongful death action against her medical providers, the Utah Supreme Court has ruled in answering a certified question from a U.S. District Court. (Link).


    $17.8 million Awarded to Family in Federal Tort Claim Act Case
    December 29, 2011

    A United States federal judge has ordered the U.S. government to pay $17.8 million to a family who lost four members when a military jet malfunctioned and smashed into their home in 2008 (Link). The victims were 36-year-old Youngmi Lee Yoon, her fifteen-month-old daughter Grace, her two month old daughter Rachel, and her 59-year-old mother Seokim Kim Lee, who was visiting to help with the children. All four burned to death when the jet destroyed the house in San Diego. In Tennessee tort reform limits non-economic damages to $750,000 to $1 million. This new law is almost certainly unconstitutional for the reasons we noted here.


Mississippi's "Personhood" Amendment: Dead on Arrival

I have written in the past (1987) on the subject of "personhood" and the U.S, Constitution: Consciousness: The Most Critical Moral(Constitutional) Standard for Human Personhood. American Journal of Law & Medicine 1987;XIII(2-3):233-248 (with Dr. Ronald Cranford). In that article I discussded the issue of personhood as applied to abortion and cited the 1973 decision of the federal district court in Rhode Island, Doe v. Israel, 358 F.Supp. 1193 (D. R.I. 1973). In that article we wrote:

  • "Another category . . . is the pre-conscious fetus. These human beings have many of the characteristics of the permanently unconscious patient -- lack of awareness and lack of the capacity to experience pain and suffering -- but have the potential for developing normal consciousness. We believe there are more similarities relating to consciousness between the end of life and the beginning of life than previously appreciated. If this is the case, the arguments concerning when human personhood ends will have significant impact on when human personhood begins during gestation. One important potential legal implication of this view could be that the most critical constitutional threshold during pregnancy for recognizing fetal rights over maternal rights is the point at which the fetus develops consciousness, albeit minimal, and the capacity to experience pain and suffering, rather than at the point of viability or birth. Roe v. Wade should have focused more on consciousness, not viability, as the more crucial threshold for the balance between maternal and fetal rights."
  • Indeed, the determination of what constitutes a person under the fourteenth amendment is a question of law to be determined by the federal courts [Doe v. Israel, 358 F.Supp. 1193 (D. R.I. 1973)]

Twenty-four years later, I find I have to return to this issue and again cite Doe v. Israel in connection with the "Personhood" ballot measure and movement now teed up for a vote in Mississippi on November 8th.

Mississippi’s "Personhood" initiative (No. 26) defines the word "person" in the Mississippi Constitution as "every human being from the moment of fertilization, cloning or the equvalent thereof.”  Pro-Life & "Personhood" advocates hail the measure as a means of undoing Roe v. Wade. Just the opposite is true. Abortion foes appear blissfully ignorant that the federal courts have already rejected a state law personhood/”life begins at conception” challenge to Roe v. Wade. In 1973 Rhode Island’s legislature  passed a law (“AN ACT Relating to Abortions)” to define personhood from the moment of conception:

  • "Whereas, The state of Rhode Island, in its fulfillment of its legitimate function of protecting the well-being of all persons within its borders, hereby declares that in the furtherance of the public policy of said state, human life and, in fact, a person within the language and meaning of the fourteenth amendment to the constitution of the United States, commences to exist at the instant of conception"

The statute went further and criminalized abortion. The law was challenged as being unconstitutional in direct violation of the Supreme Court’s holding in Roe v. Wade.  The case was: Jane Doe v. Richard Israel, Attorney General of the State of Rhode Island, 358 F.Supp. 1193 (D. R.I. 1973). This decision was affirmed by the First Circuit Court of  Appeals. The U. S. Supreme Court denied certiorari. Israel v. Doe, 416 U.S. 993, 94 S. Ct. 2406, 40 L. Ed. 2d 772, 1974 U.S. LEXIS 310 (1974).  The District Court declared Rhode Island’s “personhood law” unconstitutional in no uncertain terms:

  • "Can it be said that the decisions of the Supreme Court in Roe v. Wade and Doe v. Bolton make frivolous any claim that the Rhode Island criminal abortion statute on its face is not unconstitutional? Is the constitutional defense presented here "essentially fictitious?" With due respect and in no way meaning to mitigate the sensitive and consuming nature of the abortion controversy, I am constrained to answer both questions in the affirmative. For reasons hereinafter stated, I find the statute to be unconstitutional. Defendant and intervenors have raised two principal and interrelated arguments in defense of this statute. It is first argued that the state legislature has found that life begins at conception and has protected this life from homicide. Secondly, it is argued that the state legislature has declared a fetus to be a "person" within the meaning of the Fourteenth Amendment to the United States Constitution and that this legislative declaration is binding on this Court. Both arguments are insufficient.The Rhode Island legislature apparently read the opinion of the Supreme Court in Roe v. Wade to leave open the question of when life begins and the constitutional consequences thereof. This is a misreading of the opinions of the Supreme Court in Roe v. Wade and Doe v. Bolton.It is apparent from the opinion in Roe that the argument that life begins at the instant of conception and that the taking of this fetal life would be homicide was raised by the parties and amici before the Supreme Court and that the Supreme Court considered this argument in reaching its decision. A reading of the opinion as a whole can result in no other conclusion. Moreover, there are numerous specific indications that this argument was raised and considered.First, the Texas statute found to be unconstitutional in Roe had previously been found to be constitutional by a Texas court on the grounds, in part, that the Texas statute implicitly recognized human life prior to actual birth and that the definition of human life was for the legislature and not the courts. 410 U.S. at 119, 93 S.Ct. 705, 35 L.Ed.2d 147. Second, the court went to great lengths to detail the history of attitudes and laws about abortions, including various concepts of when life begins. At 129-146, 93 S.Ct. 705. Third, the argument was specifically addressed at 147, 93 S.Ct. 705, where the court declined to accept Texas' argument that the State's interest was defined by the "fact" that life began at the moment of conception and instead recognized that the State's interest was in the protection of potential life.[4] Fourth, the court held, in 1200*1200 the face of the argument that life begins at conception, that a fetus is not a person within the meaning of the Fourteenth Amendment, at 156-162, 93 S.Ct. 705. Lastly, the court noted that those in medicine, philosophy, and theology had been unable to agree on when life began and that, in any event, the law has never recognized a fetus as a person in the whole sense. At 158-162, 93 S.Ct. 705.The circumstance that the argument presented to and rejected by the Supreme Court in Roe is presented again in the guise of a "factual" declaration by the Rhode Island legislature does not change the result in Roe or the obvious applicability of Roe here. The state through the passage of legislation, cannot establish a presumption which violates the constitutional rights of the persons affected by such laws, as the women of Rhode Island are affected here. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 75, 13 L.Ed. 2d 675 (1965); Heiner v. Donnan, 285 U.S. 312, 52 S.Ct. 358, 76 L.Ed. 772 (1932).As the Supreme Court stated in Roe, 93 S.Ct. at 731:"[W]e do not agree that, by adopting one theory of life [the state] may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman . . . and that it has still another important interest in protecting the potentiality of human life." (emphasis added)A further indication that the issue has been conclusively determined against these Rhode Island statutes is given by the post-Roe action of the unanimous Supreme Court in refusing to reconsider its remand of the Connecticut abortion cases for further consideration in light of Roe and Doe[5] and in dismissing the 1201*1201 appeal for want of a substantial federal question in Byrn v. New York City Health & Hospital Corp.[6] Nor does the Rhode Island legislature have the power to determine what is a "person" within the meaning of the Fourteenth Amendment. Such a question is purely a question of law for the courts, independent of any power in the state legislature to create evidentiary presumptions. It has always been the Supreme Court that has given content to the term "person" under the Fourteenth Amendment. The argument of intervenors pointing to Supreme Court decisions based on state recognized interests in property misses the point that the Supreme Court exercises an ultimate, independent judgment about what "property" is property for purposes of constitutional protection. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Municipal Investors Ass'n v. Birmingham, 316 U.S. 153, 62 S.Ct. 975, 86 L.Ed. 1341 (1942); Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 58 S.Ct. 443, 82 L.Ed. 685 (1938). Furthermore, as amicus curiae has argued,[7] while the States have traditionally established a network of property and contract rights, they have not done so as to life, liberty or person. There is little reason to accept or give determinative weight to varying state versions of the existence or character of the rights at stake. Such issues are exclusively questions of Federal constitutional law. See Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L.Ed.2d 510 (1965).The Supreme Court has held in Roe v. Wade that a fetus is not a "person" within the meaning of the Fourteenth Amendment. As amicus to this Court, Professor Thomas I. Emerson, has so well stated, "Clearly the Federal courts must reserve ultimate authority to say what the meaning of the Fourteenth Amendment is. Surely the States could not, by legislative or judicial fiat, overturn the Dartmouth College case, 4 Wheat. 518, 4 L.Ed. 629 (1819), by finding that a charter was not a `contract'; or overturn Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), by finding that the right to welfare benefits was not `property'; or overturn Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), by finding that the right of parents to send their children to private school was not a `liberty'; or overturn Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), by finding that black children were not `persons'. If a Federal Constitution is to exist, these decisions must be made by the Federal courts."It is sheer sophistry to argue as the defendant does that Roe v. Wade and Doe v. Bolton can be nullified by the simple device of a legislative declaration or presumptions contrary to the court's holding. Indeed it is a surprising attempt by one independent branch of government 1202*1202 to invade and assume the role of the other. The right of a state to declare an entity does not carry with it the judicial prerogative to determine the constitutional status of such entity.Finally, it must be said that the Supreme Court having ruled on this issue, its judgment is the law of this land. Under our scheme of government, it is the Supreme Court, not state legislatures, that ultimately determines the meaning of constitutional guarantees. Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 60 (U.S. 1803); McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 (U.S. 1819).Because R.I.G.L. § 11-3-1 which prohibits the procuring, the counseling or attempting a miscarriage except when necessary to preserve the woman's life cannot survive a constitutional attack, § 11-3-2 and § 11-3-3, being integrally interwoven with it, must also fall. It is clear that the "conclusive presumption" of § 11-3-4 is also foreclosed by Roe and that § 11-3-4 must fall. Section 11-3-5, the savings clause, having nothing to operate upon, it too must be void.

The United States Supreme Court has the final word on the interpretation of the United States Constitution. It is simply futile for Mississippi to attempt to enlarge the universe of "persons" under the Fourteenth Amendment. In fact, not even Congress can pass legislation to undo Roe v. Wade. In a brilliant law review article the late Professor Thomas Emerson at Yale detailed the constitutional folly of the "Human Life Bill" (a bill in Congress to define life from the moment of conception). Simply put, neither Congress nor the states can undo Roe v. Wade. When the Fourteenth Amendment was passed in 1868, abortions were common enough to suggest that the state legislatures that had ratified the Amendment did not consider fetuses to have rights.  Merely because a state considers a fetus a “person” under state law does not “trump” the Fourteenth Amendment or Roe v. Wade. Cf. Webster v. Reprod. Health Servs., 492 U.S. 490 (U.S. 1989)( the U.S. Supreme Court specifically upheld a state’s right to enact abortion restrictions, even where the state defines life to begin at conception. Missouri law that “The life of each human being begins at conception” did not invalidate Missouri’s restrictions on abortion law). (More here).


It Can Be Done

In last night’s GOP debate (10/18/2011) much was made of Mitt Romney’s lawn care company hiring “illegals” who cut Romney’s lawn when he lived in Massachusetts. For decades undocumented foreign and migrant workers have done the toughest and lowest paying jobs “in our economy.” Rather than express any compassion or concern for the exploitation of “illegal” immigrants, the GOP wants to extirpate “illegals” from the USA – a country of immigrants. “Roll Tide” has a new meaning in Alabama : ride the tidal wave of anti-immigrant sentiment and root out the illegals.

Without a humane and rational program to allow a path to legal work and citizenship, the anti-immigrant bombasts of the GOP will actually harm the U.S. economy by removing the hardest working and most productive workers from payrolls and taxrolls, according to an extensive and thoughtful report of the Migration Policy Institute (Feb,2011) http://www.migrationpolicy.org/pubs/E-Verify-Insight.pdf

The GOP should be reminded that the plight of immigrant workers has been with us for a long time. Cesar Chavez’s “Boycott Grapes ” movement was about poverty and injustice and ushered in the now famous rallying cry (“Si se Puente! [It can be done]) which Barack Obama adapted to “Yes We Can.”

Instead of expressing feigned outrage that a multi-millionaire has his grass cut by “illegals” yet advocates fencing out Mexico and denying tuition breaks to U.S. citizens with immigrant parents, I’d like to see more anger directed at the failure of our country to compassionately and rationally bring immigrants out of the shadows and into our society by a path to economic and legal freedom.


Death Sentence for the Death Penalty

The Troy Davis execution should be the  death sentence for the death penalty. The State of Georgia, and the federal courts,  sanctioned the execution of Troy Davis on the basis of unreliable “eyewitness” testimony and ballistics “evidence.” I read the 172 page opinion written by the U.S. federal district judge, William T. Moore, Jr. It is available here:

The murky and conflicting “eyewitness” evidence of what happened that night would never the met the standard of “reliability” that we face as civil trial attorneys. In other words, if you are seeking to recover money,  judges must conduct an independent investigation of expert, scientific or technical  evidence – a Daubert hearing – a mini-trial within a trial, conducted before the judge only, not the jury, over the validity and admissibility of expert opinion testimony. The judge must determine whether the evidence is reliable. But in criminal cases, eyewitnesses are free to testify to their dim and partial recollection of  often fast-moving and  blurred events (such as homeless man drinking beer in parking lot at 1 a.m. who then gets into an altercation and someone is shot)(“ Mr. Young informed the police that, during the early hours of August 19, 1989, he was sitting in the Burger King parking lot drinking beer with his girlfriend, Ms. Murray.” Of the first 225 exonerations of wrongfully convicted individuals in the United States by the Innocence Project, 77 percent were based on mistaken eyewitness identifications. Then, if on the basis of horribly flawed and unreliable eyewitness testimony the jury convicts the defendants and imposes the death penalty, the defendant can only review that corrupted verdict by showing "clear and convincing" evidence of innocence (the "standard of review" used by Judge Moore).

In the Troy Davis case, Judge Moore credited the original statements of witnesses to a shooting at a Burger King parking lot in Savannah, Georgia (that was at 1:09 a.m.). The witness statements were  obtained beginning at 3:10 a.m. All of these statements are sketchy,  riddled with inconsistencies,  and only provided  bits of pieces of “evidence” that were melded into a “case” against troy Davis. Despite seven recantations and very probative  evidence that another person at the scene actually had a gun at the time of the shooting (Sylvester Coles) and was identified by two eyewitnesses as the gunman, Judge Moore rejected the recantations and affidavits, saying:

  • “Affidavit evidence is viewed with great suspicion and has diminished value.”
  • “The two witness identifications of Mr. Coles as the shooter were not credible, and Peggie Grant's affidavit testimony placing Mr. Coles in a white shirt is widely refuted in the record.”
  • “Courts look upon recantation evidence with suspicion.”

The whole legal construct for the death penalty is flawed. Even in a case of “no doubt” as to who was the killer, the issues of state of mind, mens rea, intent and the mitigating factors of mental capacity, insansity, drug or alcohol use make the “justice” of the State killing a human being a crapshoot where the outcome often depends on whether the defendant has the money to fight the resources of the state. We should remember the Troy Davis case and Justice Arthur J. Goldberg’s observation in “Our Beseiged Bill of Rights” 1970 (“The criminal’s power is nothing when compared with the power of the state.”). Support ending the death penalty. Go to : Amnesty International's website -- Protect the Human


A History Lesson for Professor George and the Teahadists

Professor Robert P. George, a Roman Catholic Princeton professor of jurisprudence, described by the NYT as a Christian conservative, asked a question at the Teahadist forum (sponsored by Senator Jim DeMint) in South Carolina yesterday about the 14th Amendment, the Dred Scott decision and abortion. He was asking whether the candidates would support using section 5 of the 14th Amendment ("The Congress shall have power to enforce, by appropriate legislation, the provisions of this article") to essentially have Congress trump Roe v. Wade. Professor George is a strident pro-life advocate who likes to compare and describe the Supreme Court's decisions in Dred Scott and Roe v. Wade as constitutional "travesties."

None of the candidates answered correctly or even showed the barest understanding of the law, the Constitution or history. And the same is true for Prodessor George.

The 14th Amendment applies to "persons". Dred Scott held the Constitution did not include slaves as "citizens". Slaves were persons, ruled Chief Justice Taney, but clearly not "citizens" given the protection of slavery in the Constitution (e.g. the African slave trade could not be abolished until 1808, Art. I, § 9, cl. 1 and Art. IV).note 2 Thus there was no diversity jurisdiction (between citizens of different states) and Dred Scott lost. In a brilliant law review article the late Professor Thomas Emerson at Yale detailed the constitutional folly of the "Human Life Bill" (a bill in Congress to define life from the moment of conception).

And the same goes for the 14th amendment and the fetus or unborn child. Roe held states could protect "fetal life after viability" even even though a fetus is not "a person within the meaning of the Fourteenth Amendment". note 1 Likewise the Constitution does not treat a fetus or unborn child as a person or citizen.

So the right answer to Professor George's pro-life softball question was very simple. "No. Section 5 of the 14th Amendment cannot be used to overrule Roe v. Wade because a fetus is not a "person" under the 14th Amendment. Only a constitutional amendment can overrule Roe v. Wade --just as only the 14th Amendment could overrule the decision in the Dred Scott case." But African Americans were always considered persons. The "comparisons" between Roe and the Dred Scott case falls apart when when understands the Constitution and history. Dred Scott was correctly decided (although the result was a travesty) because the framers clearly intended that slaves were not "citizens." See note 2 below. It was the Tea party heroes (the framers) who created the travesty by enshrining human slavery into the Constitution. That is why Justice Thurgood Marshall did not have much respect for the original intent of the framers of the Constitution --they were embedders of slavery and the government they created "was defective at the start."

Roe v. Wade also correctly held as a matter of legal precedent, stare decisis and constituonal history that fetuses were not persons. As the Roe opinion made clear:

  • "The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, [p157] for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. [n51] On the other hand, the appellee conceded on reargument [n52] that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment. The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, § 2, cl. 2, and § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3; [n53] in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emolument Clause, Art. I, § 9, cl. 8; in the Electors provisions, Art. II, § 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, § 1, cl. 5; in the Extradition provisions, Art. IV, § 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in §§ 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application. [n54] [p158]All this, together with our observation, supra, that, throughout the major portion of the 19th century, prevailing legal abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn. [n55] This is in accord with the results reached in those few cases where the issue has been squarely presented. McGarvey v. Magee-Womens Hospital, 340 F.Supp. 751 (WD Pa.1972); Byrn v. New York City Health & Hospitals Corp., 31 N.Y.2d 194, 286 N.E.2d 887 (1972), appeal docketed, No. 72-434; Abele v. Markle, 351 F.Supp. 224 (Conn.1972), appeal docketed, No. 72-730. Cf. Cheaney v. State, ___ Ind. at ___, 285 N.E.2d at 270; Montana v. Rogers, 278 F.2d 68, 72 (CA7 1960), aff'd sub nom. Montana v. Kennedy, 366 U.S. 308 (1961); Keeler v. Superior Court, 2 Cal.3d 619, 470 P.2d 617 (1970); State v. Dickinson, 28 [p159] Ohio St.2d 65, 275 N.E.2d 599 (1971). Indeed, our decision in United States v. Vuitch, 402 U.S. 62 (1971), inferentially is to the same effect, for we there would not have indulged in statutory interpretation favorable to abortion in specified circumstances if the necessary consequence was the termination of life entitled to Fourteenth Amendment protection."

Professor George, as a Catholic, has a religious belief that from the moment of conception "personhood" exists. But as a profeessor of history and jurisprudence he surely knows neither the Constitution nor the 14th Amendment accept this religious dogma. "Personhood" amendments - to define "persons: from the moment of conception -- resoundingly failed in Colorado (in 2008 and 2010) and pro-life advocates are attempting an amendment process in Mississippi. Professor George's Teahadist effort to rewrite the 14th Amemdment will require amending the U.S. Constitution.

_________________________________
note 1: The background on the holding in Roe: In the book, THE BRETHREN by Bob Woodward and Scott Armstrong, it says "Justice Stewart had one more change that he insisted on before he would join the opinion. It was imperative that they say more clearly that a fetus was not-- as far as the Fourteenth Amendment was concerned --a person. If the fetus were a person, it had rights protected by the Constitution, including 'life, liberty and property'. Then the Court would be saying that a woman's right outweighed those of the fetus. Weighing two sets of rights would be dangerous. The Court would be far better off with only one set of rights to protect. Stewart was certain that in legal terms a fetus was not a person. No previous case had held so. States conceded that, where the mother's life was at stake, a fetus had no rights. When the Fourteenth Amendment was passed in 1868, abortions were common enough to suggest that the state legislatures that had ratified the Amendment did not consider fetuses to have rights. Blackman (the author of Roe vs. Wade) did not disagree, but he felt the point was implicit in the opinion. Why expand it and stir up trouble? Stewart was insistent, and Blackman finally agreed to say clearly that a fetus was not a person."

note 2: The clear facts that the Constitution protected slavery:

The Constitution specifically protected slavery in a number of places. Among other things, the Constitution:

(A) Gave the slave states extra representatives in Congress for their slaves, U.S. CONST. art. I, § 2, cl. 3;

(B) Guaranteed that the federal government would suppress slave rebellions and slave insurrections, U.S. CONST. art. I, § 8, cl. 15 and U.S. CONST. art. IV, § 4;

(C) Guaranteed that the African slave trade could not be abolished until at least 1808, U.S. CONST. art. I, § 9, cl. 1 and U.S. CONST. art. IV;

(D) Prohibited taxes on exports, thus preventing both the states and federal government from indirectly taxing slavery by taxing the export crops of the South, which at the time were the most important exports produced in the nation, U.S. CONST. art. I, § 9, cl. 5 and U.S. CONST. art. I, § 10, cl. 2;

(E) Counted slaves in determining presidential electors, thus giving the slave states extra influence in electing presidents, U.S. CONST. art. II, § 1, cl. 2 (Without these extra electors the slave- holding Thomas Jefferson would never have been able to defeat the non-slave-holding John Adams in the 1800 election);

(F) Protected the right of a master to recover a fugitive slave who escaped to a free state, U.S. CONST. art. IV, § 2, cl. 3; and

(G) Made it structurally impossible to end slavery through a constitutional amendment by requiring that three-fourths of the states ratify any amendment. U.S. CONST. art. V. Had the fifteen slave states that existed in 1861 remained in the Union, and continued to support slavery, to this day those states would be able to block a constitutional amendment to end slavery.


The Right to a Jury Trial in Civil Cases in Tennessee: Why Governor Haslam & the GOP Lobbyists Will Fail
Updated: April 20, 2011


"Section 6. That the right of trial by jury shall remain inviolate, and no
religious or political test shall ever be required as a qualification for jurors."

Tennessee Constitution, Declaration of Rights.

"The declaration of rights hereto prefixed is declared to be a part of the Constitution of the state, and shall never be violated on any pretense whatever. And to guard against transgression of the high powers we have delegated, we declare that everything in the bill of rights contained, is excepted out of the general powers of the government, and shall forever remain inviolate."

Tennessee Constitution. Art. 11 § Section 16.


Governor Haslam and his lobbyists are poised to pass the Governor’s bill for “tort reform”. But there is good news. The tort reform law, with its damages caps, is plainly unconstitutional under our Tennessee Constitution.

I commend  the Governor to re-read Article I § 6 of the Tennessee Constitution and Art. 11 § 16. For over 200 years, the Tennessee Constitution has provided that, "That the right of trial by jury shall remain inviolate.” The Tennessee Supreme Court has long recognized that compensatory damages, including damages for "mental and physical pain," is a form of "property" protected by the constitutional right to trial by jury. See also Kaiser v. Cannon, 529 S.W.2d 235 (Tenn. Ct. App. 1975) and  Pitts v. Exxon Corp., 596 S.W.2d 830, 835 (Tenn. 1980). Taking away a jury's finding of damages in personal injury tort cases violates that which cannot be violated—the right to trial by jury.

Through time, there have been many discussions of the American jury process and the role it plays in our justice system. U.S. Supreme Court Justice Story considered the subject as a privilege: "The inestimable privilege of a trial by jury in civil cases -- a privilege scarcely inferior to that in criminal cases, which is counted by all persons to be essential to political and civil liberty" Alexis de Tocqueville discussed trial by jury as a political institution more than as a judicial institution. His analysis of jury in the United States led him to find that the process educates people. The influence of a jury in civil cases affects all of the interests of a community and is gradually associated with the idea of justice itself. Alexis de Tocqueville asserted that the greatest advantage of a jury was that it contributed to form the judgment and to increase the natural intelligence of the people. He concluded that "the jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it to rule well.

The Georgia Constitution has the same language as the Tennessee Constitution: “The right to trial by jury shall remain inviolate.” Ga. Const. Art. I. § 1 ¶ XI. The Georgia  Supreme Court recently held that damages caps violated the “inviolate”” right to trial by jury guaranteed by the Georgia Constitution. Atlanta Oculoplastic Surgery, P.e. v. Nestlehutt, 691 S.E.2d 218 (Ga. 2010). In 2005, the Georgia legislature enacted a $350,000 cap on noneconomic damages in medical malpractice cases. Georgia's state constitution protects the right to a jury trial, as does ours, stating "[t]he right to trial by jury shall remain inviolate." Ga. Const. of 1983, Art. I, Sec. I, Par. XI (a). Because the determination of damages has always been the jury's province, and noneconomic damages have always been a component of compensatory damages, the damages cap unconstitutionally infringed on the right to a jury trial. Id. at 223. The Court concluded: "The very existence oft he caps, in any amount, is violative of the right to trial by jury." Id.

The Georgia Supreme Court’s opinion was unanimous.

“At common law at the time the right to trial was written into the first Tennessee Constitution a jury verdict in personal tort cases could not be disturbed, and a new trial granted, merely because the judge found the damages as assessed to be either excessive or inadequate. n1 Sedgwick on Damages, § 349 at 688-89 (9th ed. 1912). Kaiser v. Cannon, 529 S.W.2d 235 (Tenn. Ct. App. 1975)

Given that Georgia's constitutional language is the same as Tennessee's and  that the Georgia  Supreme Court struck down caps  in July of last year as violating the constitutional right to trial by jury, one may rightly ask whether Governor Haslam and the Tennessee GOP legislators  who seek to change the very essence of democracy are being disloyal to their oath of office: "I do solemnly swear that I will perform with fidelity the duties of the office to which I have been elected, and which I am about to assume. I do solemnly swear to support the constitutions of Tennessee and the United States." Governor Haslam has attempted in his first 100 days in office to take away a sacred right that has been enshrined in Tennessee's Constitution for over 200 years.

The same "inviolate" language was in Washington’s state constitution and the Washington Supreme Court reached the same result as the Georgia Supreme Court. In Sofie v. Fibreboard Corp., 112 Wn.2d 636 (Wash. 1989) The court held that Wash. Const. art. I § 21 protected the jury's role to determine damages. The court held that the statute limiting damages violated appellants' right to a trial by jury.

Tennessee’s right to trial be jury has included the requirement of a unanimous jury – and “qualifies as a precious individual right. See Tenn. Const. art. I, § 6 ("That the right to trial by jury shall remain inviolate . . .”Waters v. Coker, 229 S.W.3d 682, 688 (Tenn. 2007). This is a  very important point--we have the unanimous jury rule in Tennessee because we stick to the historic common law jury rules as they existed at the time of the  adoption of Tennessee Constitution. The constitutional provision in Tennessee’s Constitution declaring that the right to trial by jury shall remain inviolate protects the right of trial by jury as it existed at common law. Marler v. Wear, 117 Tenn. 244 (Tenn. 1906). “The right to trial by jury is one of the most cherished rights preserved by our Constitution” and preserves the right as it existed at common law "insofar as that law had been adopted and was in force in North Carolina when the territory embraced in Tennessee was ceded by North Carolina to the United States government." State v. Dusina, 764 S.W.2d 766 at 768 (Tenn.1989).

Article 1, § 6 guarantee "that the right to trial by jury shall remain inviolate" was incorporated into the Constitution of 1870 from the Constitution of 1796. It protects the right of trial by jury as it existed at common law. Woods v. State, 130 Tenn. 100, 169 S.W. 558 (1914); State v. Sexton, 121 Tenn. 35, 114 S.W. 494 (1908); Marler v. Wear, 117 Tenn. 244, 96 S.W. 447 (1906).

Other cases on the right to jury trial are  collected in Annotation, Validity, Construction, and Application of State Statutory Provisions Limiting Amount of Recovery in Medical Malpractice Claims, 26 ALR 5th 245 (1995) and Cumulative Supplement. Other states have held that damage caps violate the state constitutional right to a trial by jury. Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156, 164 (Ala. 1991) (statute setting $ 400,000 damage cap on noneconomic damages in medical malpractice cases violated the Alabama Constitution's guarantee of a right to a trial by jury because "the statute caps the jury's verdict automatically and absolutely, the jury's function, to the extent the verdict exceeds the damages ceiling, assumes less than an advisory status," which violates the mandate of a trial by jury (emphasis in original)); Kansas Malpractice Victims Coal. v. Bell, 757 P.2d 251, 243 Kan. at 346 (Kan. 1988) (a $ 250,000 damage cap for recovery of noneconomic damages and requirement that award of future benefits must be used to purchase an annuity contract violates the Kansas constitutional right to a trial by jury); Lakin v. Senco Prods. Inc., 329 Ore. 62, 987 P.2d 463, 474 (Ore. 1999) (a $ 500,000 statutory damage cap interferes with  [**66] jury's fact-finding function, and "[l]imiting the effect of a jury's noneconomic damages verdict eviscerates 'Trial by Jury' as it was understood in 1857 and, therefore, does not allow the common-law right of jury trial to remain 'inviolate'"); and (as discussed above)  Sofie v. Fibreboard Corp., 112 Wn.2d 636, 771 P.2d 711, 719 (Wash. 1989) (damage cap violated the constitutional right to trial by jury in Washington, stating: "[T]he Legislature has power to shape litigation. Such power, however, has limits: it must not encroach upon constitutional protections. In this case, by denying litigants an essential function of the jury, the Legislature has exceeded those limits." Id. at 719. Interestingly, the trial judge stated that although he found the jury's damage award reasonable, he was required to reduce the award based on the damage cap. Id. at 713.). It is also important to note that, as the Washington court pointed out in Sofie, the language of the right to trial by jury provisions in states that have found the damage limit unconstitutional are nearly identical to Tennesse’s  provision that the right of a trial by jury shall remain inviolate. Id. at 723. See also Carly N. Kelly & Michelle M. Mello, Are Medical Malpractice  [**67] Damage Caps Constitutional? An Overview of State Litigation, 33 J.L. MED. & ETHICS 515 (2005).

Trial by jury is one of the most potent checks on government power ever devised. The power grab by the Tennessee GOP is being spearheaded by business interests with a conflcit-of-interest--having a history of causing injuries and deaths. Bill Lee, the president of this lobbying group (Tennesseans for Economic Growth) runs an HVAC contrtactor, Lee Company. This company was sued and Mr. Lee was deposed by me when Lee company --in violation of Codes -- installed 2 swimming pool water heaters in the Ramada Inn at Opryland in an interior room with no source for outside combustion air. John Spalding died and his wife was brain damaged from CO poisoning. The case settled in 1986. More here. Likewise National HealthCare Corporation (NHC--who runs nursing homes). National HealthCare ( NHC's ) President, Steven F. Flatt is also on the Board of this lobbying group. Sure they too want to cap damages--being the same company that failed to install sprinklers in a four story nursing home where 16 people died. For a link to the hearings beforte the Senate Judiciary Committee see here: It would be funny if it weren't true:

(1986 New Yorker Cartoon) (fair use).


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The Second Amendment Does Not Guarantee A Right to Carry Concealed Handguns: States May Ban Handgun Carry


The Maryland Court of Appeals so held in Williams v. State of Maryland (Jan. 5, 2010). The same issue is pending in Palmer v. District of Columbia. Both Wisconsin and Illinois ban carrying concealed handguns in public. Banning carrying handguns is, rightly analyzed, not prohibited by the Second Amendment or the Heller decision and sane law makers should ban handgun carry. Period. Here is what the Court said in Williams:

  • "Williams, however, attempts to bring his conviction of wearing, carrying, or transporting a handgun in public, without a permit, within the ambit of Heller and McDonald by claiming that those opinions would prohibit his conviction. This is not the case, because Heller and McDonald emphasize that the Second Amendment is applicable to statutory prohibitions against home possession, the dicta in McDonald that “the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home,” notwithstanding. --- U.S. at ----, 130 S.Ct. at 3044, 177 L.Ed.2d at 922. Although Williams attempts to find succor in this dicta, it is clear that prohibition of firearms in the home was the gravamen of the certiorari questions in both Heller and McDonald and their answers. If the Supreme Court, in this dicta, meant its holding to extend beyond home possession, it will need to say so more plainly."

Legal Updates

New Changes to the Federal Rules of Civil Procedure take effect December 1st.

New Sixth Circuit opinion discusses Tennessee law of puntive damages.


Arguing Before the Supreme Court

I have had the pleasure, or daunting task, of arguing a number of cases before the Tennessee Supreme Court and the Kentucky Supreme Court. But never the U.S. Supreme Court. Several petitions for certiorari, but no oral arguments. But the style and procedure is very similar based upon this recent article about arguing before the U.S. Supreme Court:

  • "With just 30 minutes to persuade the U.S. Supreme Court of the merits of your case, you'd think you would want to have a watertight oratory down cold. But the justices wouldn't go for it. Thomas Goldstein, a veteran of Supreme Court appeals, said lawyers are often just 10 seconds into their arguments -- and rarely past 30 seconds -- when several of the black-robed justices start bombarding them with questions. "There's no speechifying," said Goldstein, who is co-chairman of the Supreme Court practice at Akin Gump in Washington. Jonathan Entin, a professor of law and political science at Case Western Reserve University, said it's key for a lawyer in a Supreme Court case to be able to turn on a dime, even if it's not a direction you think the discussion should go. The half hour each side gets to argue its case unfolds more like a high-speed intellectual exchange than the stump speech made in final arguments to a jury. "The main thing is, you can't be so taken with yourself that it gets in the way," Entin said. "You need to be able to figure out what's important for the justices to figure out." "It's often said that you stand up and you think, 'God, this is horrible, what am I doing here?' " Goldstein said. "And then you finish up 30 minutes later and say, 'Oh my gosh, when can I do that again?'"It's daunting. But for people who like to do appellate work, it's the height of fun."

Artist Formerly Known as the Racist Lawyer Who Represented James Earl Ray

I love reading the NYT obituaries. Fascinating recent obituary about Nashville attorney (and inveterate racist) Jack Kershaw who  represented James Earl Ray in an unsuccessful post-guilty plea effort to exonerate Ray by spinning a wacko-conspiracy theory (“Raul” did it). Turns out Mr. Kershaw also was the  “sculptor” responsible for “creating”  the monstrosity on I-65: the statute of Civil War General (and famous KKK founder and sympathizer) Nathan Bedford Forrest (replete with Confederate flags). So SCV (Sons of Confederate Veterans), KKK and other wing nuts can salute the Stars and Bars,  General Nathan Bedford Forrest and the racist lawyer who defended Dr. Martin Luther King’s murderer.


Guerilla Right Wing "Journalists"

Guerrilla journalism, as practiced by a group of "rising stars" young neo-cons, including recently arrested James O'Keefe (for attempting to record/tape at the New Orleans office of Louisiana Senator Mary Landrieu) now appears to be a well-organized and robustly funded effort by right wing groups including the "Leadership Institute", Breitbart News and Andrew Breitbart. The modus operandi of O'Keefe and others (e.g. "Live Action" films & Planned Parenthood" stings) is to attend workshops and training sessions, create a salacious/made up story and then embarass an "opponent" with a secret tape or recording made by invading privacy, trespassing and lying. Politico details that young college conservatives are being trained and recruited by big-monied right wing organizations to engage in these activities, give speeches and win awards. More here . . .


A Confederancy of Dunces

The National "Tea Party" Convention is scheduled to take place in Nashville starting February 4th at Opryland. The "Tea Party Nation" will be addressed by keynote speaker Sarah Palin and other speakerss including: Michelle Bachmann (R. Minn.), Judge "Ten Commandments in the Courthouse" Roy Moore (formerly on the Alabama Supreme Court) and Marsha Blackburn (R. Tenn). The brainchild of a Franklin, Tennessee DUI lawyer, Judson "Up thre Creek" Phillips, it has all the earmarks of a scamfest, as Frank Rich (New York Times), Jeff Woods (Nashville Scene) and Nate Rau and Chas Risk (Tennessean) break down in today's papers.

Posted: January 16, 2010


Cry for Haiti . . . A Poem

The tragedy in Haiti brought to my mind the hauting poem by Rumi -- "Cry Out in Your Weakness." We must cry, we must give:

Cry Out in Your Weakness

A dragon was pulling a bear into its terrible mouth.

A courageous man went and rescued the bear.
There are such helpers in the world, who rush to save
anyone who cries out. Like Mercy itself,
they run toward the screaming.

And they can’t be bought off.
If you were to ask one of those, "Why did you come
so quickly?" he or she would say, "Because I heard
your helplessness."
Where lowland is,
that’s where water goes. All medicine wants
is pain to cure.
And don’t just ask for one mercy.
Let them flood in. Let the sky open under your feet.
Take the cotton out of your ears, the cotton
of consolations, so you can hear the sphere-music.

Push the hair out of your eyes.
Blow the phlegm from your nose,
and from your brain.

Let the wind breeze through.
Leave no residue in yourself from that bilious fever.
Take the cure for impotence,
that your manhood may shoot forth,
and a hundred new beings come of your coming.

Tear the binding from around the foot
of your soul, and let it race around the track
in front of the crowd. Loosen the knot of greed
so tight on your neck. Accept your new good luck.

Give your weakness
to one who helps.

Crying out loud and weeping are great resources.
A nursing mother, all she does
is wait to hear her child.

Just a little beginning-whimper,
and she’s there.

God created the child, that is your wanting,
so that it might cry out, so that milk might come.

Cry out! Don’t be stolid and silent
with your pain. Lament! And let the milk
of loving flow into you.

The hard rain and wind
are ways the cloud has
to take care of us.

Be patient.
Respond to every call
that excites your spirit.

Ignore those that make you fearful
and sad, that degrade you
back toward disease and death.
________________________________________
Jelaluddin Rumi, "Cry out in Your Weakness." The Essential Rumi. Trans. Coleman Barks, with John Moyne, A. J. Arberry, and Reynold Nicholson. Edison, New Jersey: Castle, 1997, pp. 156-157.

Posted: January 16, 2010


Don't Jump the Gun:
Supreme Court Briefs in McDonald v. City of Chicago

I have been reading the briefs in the pending U.S. Supreme Court case, McDonald v. City of Chicago. This is the case, set for oral argument in March, that will decide whether the Second Amendment is "incorporated" into the Fourteenth Amendment and therefore applies to the states. The precise issue: "Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment's Privileges or Immunities or Due Process Clauses."

But the really interesting question raised in these briefs is whether/how the Court will address the level of scrutiny to be applied to review state and local gun laws, e.g. Chicago's ban on carrying weapons. The amicus brief of the States of Illinois, Maryland and New Jersey is especially interesting in arguing for the constitutionality of local regulation of firearms and "carrying."

Gun laws passed by cities or states that prohibit handgun carry or gun shows have been upheld by the courts. The Court in Heller did not decide whether the Second Amendment is a fundamental right or whether gun laws should be reviewed under "strict scrutiny" or "deferential review." No constitutional "right to carry" arms in public has been established or acknowledged by the Courts. The Supreme Court may address this issue in McDonald. Until then people who say they have a "right to carry" under the Second Amendment are guessing. Any right to carry is presently permissive, subject to state and local laws and many states, counties and cities restrict or ban concealed or open carry or gun shows. Tennessee presently allows handgun permits and open or concealed carrying in state parks. Other cities, states and D.C. do not. The contours of the Second Amendment are in flux. Guns in the home are protected under the Second Amendment under the Heller case. But don't jump your guns beyond that.

I would also note that the Tennessee Constitution does not confer a right to carry a concealed weapon. In Aymette v. State, 21 Tenn. 154 (1840) the Tennessee Supreme Court held that the state constitutional guarantee of the right to “bear” arms did not prohibit the banning of concealed weapons. This case was specifically discussed in the US Supreme Court's decision in Heller.


Guest Editorial in Tennesses (January 7, 2010) here



Posted: January 3, 2010

Although a recent poll found that over two-thirds of Tennesseans do not want handguns in bars, lawmakers in Tennesee plan to introduce a new guns-in-bar law that will permit handguns wherever alcohol is sold for on-premises consumption. This comes on the heels of embarassing news for Tennessee that three University of Tennessee football players were arrested for armed robbery and now four University of Tennessee basketball players were arrested for unlawful possession of a firearm and possession of a firearm with an altered serial number, which is a felony. Add to that the holiday hiking of a Brentwood, Tennessee man with an "openly carried" AK-47 "pistol" and you get a flavor of the direction of "civil life" in Tenneessee if the gun lobby gets its way --more guns, no gun free zones or public places free from guns.

Tennessee has passed a law exempting weapons made and owned in-state from federal restrictions and is home to Barrett Firearms Manufacturing, maker of a .50-calibre shoulder-fired rifle that the company says can shoot bullets up to 8km. Lawmakers, supported by the NRA, want guns in schools, parks, churches -- basically everywhere, with open carry.

This is quite a change from the Tennessee of 1988 and beforehand. Prior to 1989 concealed carry of firearms was illegal. In 1989, Tennessee overhauled its handgun carry laws to provide that sheriffs “may issue” a handgun carry permit to authorize “any person” to carry a handgun. This change in the law allowed a local sheriff to issue handgun carry permits without having to make the person a special deputy or officer. Although the 1989 law authorized a sheriff to issue handgun carry permits it did not require the sheriff to issue civilian permits and the permits were only good in the county in which they were issued. Today permits must be issued to qualified applicants with the result that over 339,000 handgun carry permits have been issued in Tennessee. Because Tennessee recognizes/allows a handgun permit holder from any state to carry a handgun in Tennessee, a conservative estimate) is that 4 million handgun permit holders can/could carry handguns in Tennessee. My retort: (this video says it all):


Catch-22 and the Supreme Court’s Heller Decision: Why Tennessee May Ban Open Carry of Firearms:
Palmer v. District of Columbia

Posted: January 1, 2010

The curious case of Mr. Embody openly toting an AK-47 firearm (pistol) in Radnor Park has sparked a debate on Tennessee’s handgun carry laws.

Let me share the details of another debate: one I had on October 19, 2009 at a CLE conference in Little Rock, Arkansas at the University of Arkansas at Little Rock William H. Bowen School of Law sponsored by the Arkansas Bar Association and the American Bar Association Governmental Practice Institute. The topic was the Constitutionality of Gun Laws & the Second Amendment. On the panel with me was attorney Alan Gura, a Washington, D.C. attorney. Mr. Gura represented Dick Anthony Heller in the U.S. Supreme Court case, District of Columbia v. Heller.

We got into a lively debate on the holding and meaning of the Supreme Court’s decision in Heller. I noted that even after Heller was decided the District of Columbia still banned concealed and open carry of handguns in public and that Heller merely decided that D.C.’s ban on handguns in a person’s home was unconstitutional and therefore states could prohibit open carry of firearms (as do Arkansas, Texas, Illinois, New York, Oklahoma, Florida, and South Carolina) or completely prohibit carrying weapons in public, concealed or openly (as do Wisconsin, Illinois & D.C.).

I argued that even though he handled the Heller case, Mr. Gura was misreading Heller. I stated that the Supreme Court did not hold that the Second Amendment right identified there is fundamental nor did the Court’s decision preclude states or the District of Columbia from restricting or prohibited concealed or open carry of firearms in public. In effect Heller had its own “Catch-22”: yes the rule is the Second Amendment is not limited to militias and applies to individuals, but like Joseph Heller’s Catch-22, the catch is that States may regulate individual use and ownership of firearms (to wit-gun control). While the Court used the word “fundamental” three times in its decision, it did not use it in its conclusion or holding. The relevant portion of that opinion (on the standard of review) makes clear that the Court was declining to decide such issues. Id. at 2817– 18. See United States v. Moore, 2009 WL 1033363, * 3 (W.D.N.C. Apr. 17, 2009) (“the Heller Court did not explicitly declare this right to be fundamental.”); United States v. Miller, 604 F.Supp.2d 1162, 1170 (W.D. Tenn. Feb. 26, 2009) (same); United States v. Radencich, 2009 WL 127648, * 4 (N.D.Ind. Jan. 20, 2009) (same); United States v. Schultz, 2009 WL 35225, * 5 (N.D. Ind. Jan. 5, 2009) (same).

Mr. Gura argued that that Heller held that that the “right to bear arms” encompasses the right to carry guns in public. I argued that he was expanding Heller well beyond its boundaries. The focus of Heller was not about “bearing” at all, let alone about public carrying—it was about banning weapons in the home. Wisconsin’s Supreme Court for example, presaged Heller in upholding a ban on carrying firearms in public explaining: “If the constitutional right to keep and bear arms for security is to mean anything, it must, as a general matter, permit a person to possess, carry, and sometimes conceal arms to maintain the security of his private residence or privately operated business, and to safely move and store weapons within these premises.” State v. Hamdan, 665 N.W.2d 785 (Wis. 2003).

On January 22, 2010 Mr. Gura will get another chance to make his argument. On that day the U.S. District Court for the District of Columbia will hear oral arguments on the summary judgments filed in Mr. Gura’s challenge to D.C.’s ban on carrying firearms in public in the case Palmer v. District of Columbia. The District of Columbia has filed briefs in support of its motion arguing:

  • The Court should grant summary judgment to the District because its regulation of firearms does not violate either the Second Amendment or Heller v. District of Columbia, ___ U.S. ___, 128 S. Ct. 2783 (Jun. 26, 2008). As the Supreme Court recognized, “[l]ike most rights, the right secured by the Second Amendment is not unlimited. [T]he right [i]s not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. at 2816. Despite this language, plaintiffs baldly claim that the “Second Amendment guarantees the right to carry handguns in public for self-defense.” P.Mem. at 6. That conclusion is incorrect. Plaintiffs attempt to stretch the language of Heller far beyond what the Supreme Court found to be protected by the Second Amendment—“the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” 128 S. Ct. at 2821. Plaintiffs’ invocation of various snippets of language from Heller—that “the right to keep and carry arms” authorizes the public carrying of weapons—is not supported by that decision, or any other controlling decision. Plaintiffs rely almost exclusively on legal treatises or inapposite, outdated decisions from other jurisdictions. The District’s regulation of handguns at issue here is squarely in the mainstream and eminently reasonable, minimally intruding on the right announced in Heller to bear arms for the protection of “hearth and home,” while at the same time safeguarding public safety under traditional police powers."

The Palmer case will likely wend its way to from the district court, to the D.C. Circuit Court of Appeals and then the U.S. Supreme Court. In the meantime, Tennessee should join Arkansas, Texas, Illinois, New York, Oklahoma, Florida, South Carolina, and Wisconsin and ban open carry of firearms in public places.

Links to briefs in the Palmer v. District of Columbia case:


Handgun Carry Permit Holders: What Now?
Posted: December 23, 2009
December 31, 2009

After the U.S. Supreme Court decision in Heller, law and social policy will now evolve with a heated debate as to where, when and whether "permit holders" can "carry" weapons in public places. Handgun/ccw permit classes and permit holders are burgeoning. The NRA boasts that almost all states grant handgun permits to people with clean criminal and psychological records. In 1987, just 10 states did. Only Wisconsin, Illinois and Washington DC now prohibit carrying concealed handguns entirely.

The contours of a "Second Amendment" "right to carry" have yet to be sorted out. The U.S. Supreme Court decision in Heller struck down a Washington, D.C., law that prohibited handguns for protection in your home, saying that was guaranteed by the Constitution. But that was all it extended to, the home. There is no Second Amendment “right” to carry a permitted handgun everywhere and the effort to pass laws to permit guns in "sensitive places" such as bars is, as detailed in this blog, beyond the fringe of law and common sense.

Two recent federal cases have also clarified that law enforcement officers (police) may lawfully stop, detain and pull a gun on handgun carry permit holders since spotting someone with a gun in public creates probable/reasonable cause that they are about to engage in criminal activity. The First Circuit case (here); Georgia federal district court case (here). In a Virginia case a HCP permit holder was detained at length and his .45 caliber hangdun was taken in a traffic stop.

A larger issue is how "permit holders" -- growing in numbers -- are determined to change the very nature of public life and public places and the character of life and society in Tennessee and other "right to carry" states. Recall the saga of the gun toting soccer mom in Pennsylvania who "openly carried" her permitted handgun to her 5 year old's soccer game (and later was shot to death by her husband).

For example, a news story in Nashville detailed an incident at Radnor Lake Sate Park where a man with a loaded AK-47, military boots and a black skull cap was in the state park, apparently "exercising" his Second Amendment rights. A park patron, told Channel 4 news , "This is a place where people come to find serenity, to be apart from the hustle and bustle. The guy is clearly trying to push the boundaries." WKRN story here: Leonard S. Embody, (posts to opencarry.org discussion forum (and Tennesse Gun Owners forum) under name "kwikrnu") age 37 of Brentwood, TN carried the gun at Radnor State Park and vows to carry it to the Bicentennial Mall next week and posted details of his encounter on a web forum (link) (pdf), saying:

  • I went to the Tennessee State Radnor Lake State Park this afternoon to take in some nature and get some exercise. I dressed in boots, blue jeans, t-shirt, vest, and an old military issue gore-tex woodland camo jacket. I carried my new Romanian Draco AK pistol loaded with 31 123 grain FMJ ammunition from Walmart. I arrived at approximately 3:30 pm and with the pistol slung on my back I started my walk. It was mostly uneventful. I saw no deer and passed maybe 30 hikers. As I reached the end of the trail I made sure no one was close by and shifted the ak-47 pistol to the front of my body. I reached the end of the trail and turned onto the roadway where I saw the first ranger of the day. He asked me if it was an airsoft and I said no it was an AK-47 type pistol. He looked at me strangely and asked to see my permit. I showed my Tennessee handgun carry permit. He asked where I parked and I told him. He said I could keep walking I kept walking as he called someone. By the time I reached my car the ranger was no where in sight as I walk quickly. However, another ranger vehicle pulled in the parking lot and a ranger jumped out with a shotgun pointed at me and yelled at me to stay still and put the weapon on the ground. After I put the weapon down he told me to move away which I did. He then told me to put my face on the ground and my arms on my head. I complied. I think he had a gun trained on me the whole time, but I couldn’t see. He searched me quickly and put my AK into the truck. This particular ranger has seen me before and has asked to see my TN handgun carry permit. He asked to see the permit again and asked for my driver license. I told him I would not give him my license, but he could see the permit.

Mr. Embody is likely simply a zealous advocate of "open carry" and the Second Amendment and poses no risk or threat.

Elsewhere, however, the Violence Policy Center is keeping a tab on the number of shooting deaths by ccw permit holders (107 killed since 2007). This Thanksgiving, for example, a Florida permit holder killed four members of his family (is still at large) and, because of reciprocity, he may lawfully carry in Tennessee.

Other recent shootings by permit holders:

  • Dec. 28, 2009: Detroit MI: handgun permit carrier charged with homicide: kills unarmed fleeing trespasser.
  • Dec. 25, 2009: Philadelphia, PA: gun permit holder (a pastor no less) shoots & kills his son on Christmas
  • Dec. 16, 2009: Quincy MA: prominent developer w/ HCP shoots a man in a road rage incident.
  • Dec. 8, 2009: Omaha, NE: HCP holder shoots/kills man in an argument over Texas-Nebraska football game.
  • Dec. 7, 2009: Pelham, AL: HCP holder shoots/kills police officer.
  • Nov. 28, 2009: Indianapolis, IN: 19 year old HCP shoots up the food court at a mall (no injuries).
  • Nov. 25, 2009 (Beaver Township , PA) (permit holder fatally shoots hunter in an argument).
  • Nov. 25, 2009 (Jupiter, FL) (permit holder fatally shoots four family members; was in gun shop day of the shooting.
  • October 17, 2009: Suffolk, VA: HCP holder shoots/kills man in road rage incident.
  • August 4, 2009 (Pittsburgh, PA) (permit holder kills four women and himself at a gym). The sixth mass killing by a permit holder in the last 2 years.
  • Tennessee
    # Concealed Handgun Permit Holder: Troy D. Whiteside
    PENDING
    Date: August 22, 2009
    People Killed: 1
    Circumstances: On August 22, 2009, Troy D. Whiteside, 41, allegedly shot and killed
    Reginald Stacy Sudderth, 43, in a parking lot outside a clothing goods store in East
    Knoxville. According to news reports, neighborhood residents said the two, who had
    known each other for years and had competing businesses, “couldn’t stand to be around
    each other.” There were also allegations of arson. In the parking lot, Whiteside allegedly
    shot at Sudderth more than 10 times with a 9mm pistol. Sudderth was hit several times
    and died. Whiteside’s attorney claimed that in the lot Sudderth threatened his client and
    acted as though he were reaching for a weapon. The attorney representing Sudderth’s
    family stated that Sudderth, who was barred from possessing firearms because of a felony
    drug conviction, “was unarmed as he is always unarmed and known in the community
    not to carry weapons.” Whiteside, who was issued a concealed handgun permit on
    October 19, 2007, was charged with second degree murder and faces a three million
    dollar wrongful death suit filed by Sudderth’s family.
    Source: “Update: Shooting case to keep businessman away from ORNL,” wbir.com, September 2, 2009;
    “Bad feelings between two East Knoxville residents went back years,” knoxnews.com, August 30, 2009;
    “Attorney: Whiteside killed man in self-defense,” knoxnews.com, August 24, 2009.
  • Tennessee
    Concealed Handgun Permit Holder: Thomas Pate
    PENDING
    Date: April 30, 2009
    People Killed: 1
    Circumstances: On April 30, 2009, Thomas Pate reported his wife missing to police,
    telling them that she had failed to return home after going for a run. Pate eventually gave
    investigators information that led them to his wife’s body. Police found her body the
    night of May 1 near the Loosahatchie River about five miles from the couple’s home.
    Pate told police he had shot his wife in the head and then threw the pistol in the river.
    His lawyer claimed the shooting was accidental. Pate had a concealed handgun permit
    that was issued on November 27, 2006. He was initially charged with second degree
    murder. The charge was later upgraded to premeditated first-degree murder.
    Source: “Murder charges upgraded against Bartlett man,” Associated Press, September 21, 2009;
    “Husband charged in Tenn with Searcy woman’s death,” Associated Press, May 5, 2009; “Pate Claims
    Wife’s Death an Accident,” myfoxmemphis.com, May 4, 2009; “Bartlett nurse’s husband charged with
    second degree murder,” wmctv.com, May 3, 2009; “Neighbors Shocked Husband Arrested in Wife’s
    Death,” wreg.com, May 2, 2009.
  • Tennessee
    Concealed Handgun Permit Holder: Austin Agee
    SUICIDE
    Date: March 2009
    People Killed: 2 (including shooter)
    Circumstances: In March 2009, Austin Agee shot and killed Lisa Davis and dumped her
    body in a field where he used to ride four-wheelers. On March 7, 2009, Agee, Davis, and
    three other acquaintances partied together in the Beale Street entertainment district in
    Memphis. The group dropped Davis off at her residence early Sunday morning, but
    Agee is believed to have returned to the house. Friends reported Davis missing on
    Sunday when she failed to show up for work at Bumpus Harley-Davidson. On Tuesday,
    March 10, 2009, Agee fatally shot himself after detectives arrived at his residence to
    question him as a “person of interest” in the Davis disappearance. A note found at his
    residence quoted Agee as being sorry for what he had done and revealed where the body
    could be found. Agee had a concealed handgun permit which was issued on November
    10, 2008.
    Source: “Details Emerge About Tennessee Model Slain in Mysterious Murder,” FoxNews.com, March 13,
    2009; “Double tragedy: Suspect’s note leads to remains of missing Bartlett woman in Lakeland field,”
    Memphis Commercial Appeal, March 10, 2009.
  • Tennessee
    Concealed Handgun Permit Holder: Harry Raymond Coleman
    PENDING
    Date: February 6, 2009
    People Killed: 1
    Circumstances: On February 6, 2009, Harry Raymond Coleman allegedly shot and
    killed Robert “Dutch” Schwerin during an argument over how close their SUVs were
    parked. The shooting occurred outside the Villa Castrioti restaurant where Schwerin and
    a woman identified as Coleman’s wife were arguing over how close his GMC Yukon
    Denali was parked to her Hummer. Coleman retrieved his gun from the Hummer and
    shot Schwerin in the chest. Coleman, who received a concealed handgun permit in June
    2006, was charged with second-degree murder.
    Source: “Attorney: Accused shooter in Cordova parking-lot killing regretful,” Memphis Commercial
    Appeal, February 9, 2009; “In Brief: Cordova shooter appears in court,” Memphis Commercial Appeal,
    February 24, 2009.
  • Tennessee
    Concealed Handgun Permit Holder: Martino Johnson
    PENDING
    Date: February 2009
    People Killed: 1
    Circumstances: In February 2009, Martino Johnson allegedly shot and killed Terrelle
    Beasley following a car accident in Memphis. Johnson reportedly also threatened to kill
    an eyewitness who was trying to call 911. Johnson had a concealed handgun permit
    issued on January 24, 2007. Johnson was charged with second degree murder.
    Source: “Most say shooter’s actions during robbery attempt on target,” Memphis Commercial Appeal, July
    10, 2009.
  • Tennessee
    Concealed Handgun Permit Holder: Demetria Nance
    CONVICTED
    Date: December 2008
    People Killed: 1
    Circumstances: In December 2008, Demetria Nance shot and killed her on-again, offagain
    boyfriend Aaron Benton III, firing four shots from a 9mm pistol. Nance testified
    that after Benton decided to end their relationship she was emotionally confused and that
    after Benton shoved her and turned away she drew her pistol and fired—intending to hit
    him in the leg. Nance’s lawyer said that she had not planned in advance to shoot Benton,
    but that after having been robbed “it was her habit to carry the gun with her at all times in
    her purse.” Nance, who had a concealed handgun permit, was convicted of second
    degree murder in November 2009.
    Source: “Woman convicted of 2nd degree murder,” The Knoxville News-Sentinel, November 13, 2009;
    “Trial Centers Around Intent to Kill,” The Knoxville News-Sentinel, November 10, 2009.
  • Knoxville, TN 05/04/09. Thomas H. Whitaker, a reported concealed carry licensee, discharged his gun on a bike trail, very close to children playing. Whitaker, who was arrested for impersonating a law officer, “did not seem to be mentally stable” at the time of his arrest
  • Franklin, TN 12/20/08. Joseph Sepulveda, 29, pointed a gun at a woman during an argument over a parking spot in a mall parking lot. The woman called police, who found Sepulveda sitting in a car with a loaded handgun in a holster on his hip. Sepulveda was arrested and charged with aggravated assault.
  • Nashville, TN 06/13/08. Brandon Jones of the Tennessee Titans, a reported concealed carry licensee, brought a loaded gun into Nashville International Airport. The gun was discovered in his luggage during routine screening. He was charged with unlawful possession of a firearm and was then allowed to board his flight. Jones was sentenced to six months probation and a $500 fine plus court costs; he also had to forfeit the weapon.
  • Memphis, TN 12/28/01. Barry Brunstein of Tampa, FL, was caught with a loaded .9-mm Beretta in his briefcase at Memphis International Airport during a random security stop. Brunstein, a transportation safety consultant, said that he had forgotten that the gun was in his briefcase. Alarmingly, Brunstein had passed through security at Tampa International Airport on the first leg of his flight without the weapon being detected.

This list/analysis also understates the "death risk" associated with carrying firearms where carry permit holders become emboldened, start shooting, and die in a shootout where the permit holder did not have a self defense privilege and over-reacted. An example: The tragic death of boxer Vernon Forrest. He was robbed at at a gas station at gunpoint. The robber fled. A HCP holder, Forrest got his gun and chased the robber. Shots were exchanged. He gave up the chase and was the shot 7-8 times in the back. Another example: a permit holder who chases and shoots at a shoplifter.

The above analysis also understates the death risk where permit holders' guns accidentally get in the hands of children, causing death. Examples here; here and more here andhttp://www.knoe.com/global/story.asp?s=11754668

In addition, the "death toll" associated with handun carry permits should also include cases where the permit holder kills a criminal in a situation where the criminal was committing a robbery with no intent to cause bodily harm or death. For example, three Univ. of Tennessee football players recently attempted an armed robbery late at night at a Pilot gas station. Had the victim been a handgun permit holder arguably the victim would have been justified in shooting all three of these individuals. In North Carolina, for example, an off duty police officer was held up when he used a dribe by ATM late at night. He shot the robber, a 19 year old who "made a mistake but was not a cold hard criminal." The permit holder in effect escalated an armed robbery that would have resulted in the loss of a few hundred dollars into a justifiable homicide

The Tennessee legisltaure (and the NRA) has, in this writer's view, taken a very dangerous and legally unjustified view of the contours of the Second Amendment that threatens to drastically alter what we have viewed as "civilized life." Having loaded weapons in parks, churches, schools, workplaces, restaurants and bars -- the agenda of the Tennessee GOP and the NRA -- should be opposed in the first instance as horrible social policy. It should also be challenged as an unlawful distortion of the holding in Heller and as an unconstitutional infringment on the right of people, citizens to meet and associate in public and society without exposure to AK-47s.

A recent opinion article from Dayton, Ohio summarized:

  • Kristen Rand, a VPC spokesman, says, “When the National Rifle Association launched its ... campaign ... it made this promise: ‘People who get permits ... are law-abiding, upstanding community leaders who merely seek to exercise their right to self-defense.’ “To the contrary,” says Rand, “concealed handgun permit holders are killing people over parking spaces, football games and family arguments.” She says that if people had known in advance about the police fatalities, the conceal-and-carry bills never could have been passed. The VPC stats don’t indicate that the permit-holders are an exceptionally violent lot, not when you consider the millions across the country who hold permits. The numbers do suggest something about what happens when guns are around.One shooter in Utah insisted his crime never would have happened if not for the permit. (Also, he was on seven prescription drugs. In July 2008, a police officer in suburban Twinsburg in northern Ohio pulled over one Ashford Thompson for playing loud music. Thompson shot him four times in the head with a “pocket pistol,” killing him. Thompson had a permit.
    In 2007, on the Fourth of July, a firefighter with a permit killed three people and wounded two in a dispute over fireworks the three were setting off. The (Cleveland) Plain Dealer reported the shooter being seen by acquaintances as a “ticking time bomb” before the shootings.There was a case in Ohio of a 66-year-old man killing himself and his wife; a man killing himself and his girlfriend; and a 5-year-old accidentally killing himself with his father’s gun. (The last one is still pending in court.) All involved permits. The VPC gathers its numbers from news accounts (and removes cases that result in acquittals). It’s not an ideal way. But nobody keeps such stats officially. News accounts are far from all-inclusive. Sometimes news outlets look into — and report — whether the shooter had a permit; sometimes they don’t(The names of permit holders in Ohio are not released as a group. That’s another fight the gun lobby won. News media can, however, find out if a particular person has a permit.) Toby Hoover, executive director of Ohio Coalition Against Gun Violence, a small operation based in Toledo, points out that the VPC numbers are just about fatalities. Nobody seems to have stats on how many non-fatal shootings might involve permits. The stats coming from the VPC aren’t the last word in the debate about concealed weapons, of course. But they are worth keeping in mind when proposals come up for still more and more liberalization of gun laws.

See also: Mark Duggan, More Guns, More Crime, University of Chicago and National Bureau of Economic Research:

"Increases in gun ownership lead to a higher gun-homicide rate and legislation allowing citizens to carry concealed weapons does not reduce crime, according to a recent NBER Working Paper by Mark Duggan. After peaking in 1993, gun homicides in the United States dropped 36 percent by 1998, while non-gun homicides declined only 18 percent. In that same period, the fraction of households with at least one gun fell from more than 42 percent to less than 35 percent. Duggan finds that about one-third of the gun-homicide decline since 1993 is explained by the fall in gun ownership. The largest declines occur in areas with the largest reductions in firearm ownership." link.



Tennessee Attorney General files Notice of Appeal
Posted: December 22, 2009

I received today the AG's Notice of Appeal in Rayburn ex rel. v. Robert E. Cooper, Jr., Tennessee Attorney General (Davidson Ch. Ct.) (Chancellor Bonnyman's ruling that TCA 39—17—1305(c), the guns-in-bars law, was unconstitutionally vague). The record will be filed and briefs filed thereafter. We have the right to raise arguments and authorities in our reply brief not only that the law was uncosntitutionally vague but also the issue of whether it was preempted by the OSHA/TOSHA "general duty" clause to ensure employees have a safe place to work free from "recognized hazards" and whether it constituted an unconstitutional delegation of police and legislative powers (by leaving it to restaurant and bar owners whether or not to post "no firearms" signs). American Chariot v. City of Memphis, 164 S.W.3d 600 (Tenn. Ct. App. 2004).


Time to ReLoad: Response to Senator Jackson
Posted: December 19, 2009

On Nov. 20th Chancellor Claudia Bonnyman ruled in a case I filed, Rayburn ex rel. v. Robert E. Cooper, Jr., Tennessee Attorney General (Davidson Ch. Ct.) that Tennessee’s “guns in bars law” —actually an exception added to a pre-existing law banning guns in public places where alcohol is served—was “fraught with ambiguity” and therefore unconstitutional.

Today, the Tennessean reported that State Senator Doug Jackson, Democrat of Dickson and sponsor of the legislation that passed intends to file a new bill that will legalize guns in bars and restaurants that serve alcohol. Senator Jackson and Rep. Curry Todd, Republican of Collierville wasted valuable legislative time, taxpayer money* and embarrassed Tennessee (see the Colbert Report) by passing a law that expressly allowed carrying handguns (concealed or open) into restaurants that served alcohol (all the while the proposents realizing that in Tennessee all bars were licensed as “restaurants that served alcohol").

In representing the Plaintiffs (Nashville restaurateur Randy Rayburn et al.) we fought the law as an unconstitutional act of “legislative malpractice” that was passed in the wake of absolutely false statements by the proponents, the NRA and Senator Jackson. I had great help from attorneys Adam Dread, David Raybin and Will Cheek.

A word to Senator Jackson & Representative Todd. If passed again it can be challenged again as being unconstitutionally vague and in violation of federal and state occupational and health safety laws (preemption).

Guns in alcohol-serving restaurants create a dangerous workplace in violation of OSHA standards** and because of the maze of alcohol permit laws (for hotels, zoos, restaurants, etc.) permit holders themselves will still not know if they are in violation. During next year’s General Assembly session, the legislators will now have to revisit this absurd issue of whether to flatly allow guns inside actual “bars” and “restaurants that serve alcohol. ”

The legislature knew this was a problem in Round I: they proposed bans in 21-plus establishments, curfews on when the exception would apply. All of these were eventually voted out of the final passed bill, and a “restaurant carry” exception ultimately rested on the narrowest of restrictions to distinguish itself, if only nominally, from a full-blown “guns-in-bars” exception. Chancellor Bonnyman ruled: “The court finds that TCA 39—17—1305 (c) does violate the due process rights of the plaintiffs—generally, the plaintiffs gun permit holders—because the language ‘the serving of such meals shall be the principal business conducted’ cannot be known to the ordinary citizen.”

Senator Jackson now makes no pretense that he wants to pass a ‘guns in bars’ law explicitly. Not only is this opposed by 80% of Tennesseans, such a law is vastly at odds with Tennessee’s history relating to alcohol regulation. Tennessee came late to the table in terms of legalizing liquor by the drink. Liquor by the drink wasn’t legalized in Tennessee until 1967. When it went through, it wasn’t intended to include bars. There aren’t supposed to be bars in the state, just restaurants that serve alcohol. But, obviously there are bars in the state of Tennessee.

Senator Jackson’s mission has been to make Tennessee the first state in the nation to pass a law expressly allowing guns in bars. Senator Jackson and the NRA have falsely claimed that “40 states have similar laws.” This is a shameless misstatement . Only 14 have laws that expressly allow some type of firearm carry in restaurants that serve alcohol, but each and every one of those states has very explicit provisions to keep guns out of bars (places that have more than 50% of their business from alcohol or or parts of restaurants where the primary business is alcohol. Florida, for example, doesn’t allow guns in the bar area of restaurants. Jackson and NRA tell you that 40 other states have a similar law. That is simply a lie. The New York Times acknowledged the accuracy of our research and the falsity of the claims made by Jackson and the NRA (read comments as well).

This is one of the many untruths that we have come up against since we began our constitutional challenge. The other mantra of Jackson et al is “Second Amendment rights.” The U.S. Supreme Court decision in Heller struck down a Washington, D.C., law that prohibited handguns for protection in your home, saying that was guaranteed by the Constitution. But that was all it extended to, the home. There is no Second Amendment “right” to carry a permitted handgun everywhere and the effort to pass a law to permit guns in bars is beyond the fringe of law and common sense.

_________

* Including, for example, statutory attorneys fees and expenses pursuant to 42 U.S.C. § 1988.
** Chancellor Bonnyman did not rule in favor of the Plaintiffs on the OSHA/preemption count. This issue remains undecided in the U.S. appellate courts as to firearms in the workplace generally and the Tennessee law would provide, we believe, a very good case for appellate review in the event guns were allowed where alcohol is sevrved--particulary true "bars" as Senator Jackson now proposes. For example, the newly appointed head of OSHA, David Michaels, has advocated keeping guns out of the workplace.


Tennessee Locality Rule & Alternative Methods Jury Instruction
Posted: April 11, 2009

Tennessee Pattern Jury Instruction § 6.14 Alternate Methods. provides "When there is more than one accepted method of diagnosis or treatment, and no one of them is used exclusively and uniformly by all physicians of good standing, a physician is not negligent for selecting an accepted method of diagnosis or treatment that later turns out to be unsuccessful. This is true even if the method is one not favored by certain other physicians."

T.P.I. § 6.14 is inapplicable to the issue of the prima facie case (and getting a plaintiff’s verdict) where one alternative is established by expert proof to be outside the standard of care. In Ledford v. Bradley Memorial Hosp. Not Reported in S.W.3d, 2001 WL 1448500 Tenn.Ct.App.,2001: "Where competent medical authority is divided, a physician will not be held responsible if, in the exercise of his judgment, he followed a course of treatment advocated by a considerable number of his professional brethren in good standing in his community." Gresham v. Ford, 192 Tenn. 310, 315, 241 S.W.2d 408, 411 (1951) (quoting Floyd v. Walls, 26 Tenn.App. 151, 167, 168 S.W.2d 602, 608-09 (1941)); see also Harris v. Buckspan, 984 S.W.2d 944, 952-53 (Tenn.Ct.App.1998) ("It is not a departure from the applicable standard of care for a physician to use a procedure that is but one of several procedures recognized in the profession as adequate in the treatment of the plaintiff's condition."). The plaintiffs have not shown that Dr. Johnson's decision to implant a 1/3 tubular plate violated the standard of care. "

Likewise, in Click v. Mangione, Not Reported in S.W.3d, 2000 WL 897774 Tenn.Ct.App.,2000.): " It is not a departure from the standard of care for a physician to choose one of several different medically accepted courses of treatment for his patient. Harris v. Buckspan, 984 S .W.2d 944, 952-53 (Tenn.Ct.App.1998).” Thus, under these cases, Harris v. Buckspan, 984 S.W.2d 944 (Tenn.App.,1998.) and TPI 6.14 the law and instruction is cautionary-- to tell the jury that just because a doctor uses a method that is "accepted" and used by other physicians "in good standing" the doctor defendant doesn't commit malpractice just because his method is "disfavored" by certain other physicians if it is an "accepted method".

If you read all case law it is clear that the law and instruction does not mean there cannot be malpractice where you have one method that the defendants says is SOC and one method that plaintiff says is not SOC. The law and instruction is simply to caution the jury (and establish as law) that merely because there are 2 accepted alternatives that is not enough to prove malpractice. The plaintiff must prove a violation of the SOC in the same or similar community.

Tennessee defense attys should not be allowed to argue that this instruction = no malpractice where there are two views on SOC. The proper plaintiff’s retort to the alternate methods defense argument is: no -- we are not talking about 2 accepted methods-- we are talking about 1 method that is SOC (proven in the similar community) and one that is not SOC—that the defense position is utterly unacceptable, outside the SOC and the one that the defense wants you the jury to bless as unsafe medicine. So TPI 6.14 can be given in a case but so what? That does not make the problem go away. If the SOC established by P by expert testimony for a similar community is A (and not B) but the defense expert says SOC in D's community is B, then P has proven a violation of SOC and the method is not accepted (at least by prima facie case).

The vagueness problem and due process problems are still there because if all there is proof that the SOC in the similar community (let's say GA) is A and not B. Then how can a jury say/decide SOC in a similar community was not violated. I say they can't just pick the SOC in D's community or even make a valid choice because the statute allows prima facie case in either. Juries in TN in medmal cases are really deciding cases on the basis of which expert they like and have no principled or instructed basis to decide between the differing SOCs.

Under TN law as set forth in the medmal statute if P establishes D violated the SOC in the similar community there is simply no standard or instruction does for the jury decide liability where D experts say SOC in D's community was met.

Another twist. Just settled a case where hosp in Nashville failed to do a test in a newborn baby case. Our expert from VA said SOC in similar VA community required the test. Experts for defense said SOC in Nashville did not require the test. Defense also had expert from NC who said test not required by SOC in NC. The medical literature, however, strongly supports the test.

So if we had not settled what was the jury to do? How would they pick/decide and by what standards or instruction? We proved SOC in similar community (VA) was violated. Does jury decide what the better/more reasonable rule on SOC was? Where is that in the statute or instructions. Do they decide on the more impressive expert? Do you see my point?

The statute should be used by Plaintiffs and victims as a sword—the TN legislature said a Plaintiff could win if they proved SOC violation in a similar community. Where the SOCs conflict but P proves a violation in a similar community the statute says P wins or we need a new constitutional non-vague comports with due process law that explains how the jury decides and picks between differing SOCs I between D community and the Plaintiff’s similar community.

And it is pretty clear the TN medmal locality rule involves two potential SOCs.: "[The locality rule is two-pronged. The party calling an expert witness has the burden to establish the appropriate standard of care in (1) the community in which the defendant practices, or (2) a community similar to the one in which the defendant practices. Mabon, 968 S.W.2d at 831. Thus, the party's expert must be knowledgeable of one or the other to be competent to testify. Tenn.Code Ann. § 29-26-115(a)(1); Robinson v. LeCorps, 83 S.W.3d 718, 724 (Tenn.2002)." Conley v. Life Care Centers of America, Inc. 236 S.W.3d 713, 742 Tenn.Ct.App.,2007.

To close the loop of my thoughts. What the TN legislature probably meant to say/do is have 1 SOC provable by the D's community or a similar community. Because the law is badly written the jury is really at sea when the SOCs are different and the experts differ as to the SOC in the same versus similar community.

The locality rule should be abolished and one way to do so is to attack its utter vagueness, irrationality and lack of procedural due process for victims of malpractice.


Tennessee Locality Rule: The Missing Instruction & Potential New Const’l Challenge (Due Process/Vagueness)
Posted: April 10, 2009

I was sitting in a lengthy all too boring depo yesterday in Atlanta where a medmal defense atty was spending > 1 hr on the Tennessee locality rule and the issue of whether a community in GA was similar to the defendant doctor's community in TN. After what seemed interminable forays on this I objected on the grounds that the whole line of questioning was argumentative, misleading and totally irrelevant.

Here’s my new, maybe, “take” on this “rule”: The statute (29-26-115) and case-law define the relevant standard of care inquiry as “The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time the alleged injury or wrongful action occurred” (emphasis supplied). Thus, I say, it matters not a whit whether the GA MD knows MDs in the TN defendant's community, it doesn’t matter whether he’s ever been to TN, etc. If he knows the recognized standard of acceptable professional practice in his GA community and testifies based upon sufficient facts that his community is similar to the TN community that’s a prima facie case.

But here’s the rub. What if the practices or standard of care are in fact different in the 2 communities? Suppose, just as a hypothetical, that surgeons in the TN community never take x-rays to confirm catheter placement but they always do in GA (and everywhere else). Suppose, another hypo, no OB/GYN in the TN community tests for group B strep but they do in similar communities in GA, KY, etc (and in fact this is reasonable and a national standard to boot).

The jury needs a specific instruction that if they find the standard of care was not followed in the similar community then the defendant is liable for medical malpractice. The jury should not be allowed to choose which standard it is going to go with. Otherwise the statute is unconstitutionally vague, with no guidance or due process for decision, and permits a locality in which the defendant practices to act unreasonably and outside the similar community/reasonable standard of care for similar communities. Recall the TJ Hooper case (Learned Hand, if B<PxL then negligence). None of the tugboats in NY harbor had lights but there was still negligence because that was unreasonable. Granted the locality rule changes the common law, but it can’t do so irrationally and violation of due process or with utter vagueness. If in “the community that the defendant practices in” they do X, but in a proven similar community they do “not X” what is a jury to do? Pick? How? If the jury picks the defendant’s community (the X) the jury has rendered a verdict contrary to the statute I would say.

I believe many medmal cases are lost because the TN medmal defense bar convinces a jury that the defendant did it the way they do it in their community and the plaintiff’s out of town expert doesn’t know jack about “our community”. This jingoistic BS must stop. Bottom line: we need to try the medmal cases and force the judge to explain that the Plaintiff wins if the Plaintiff proves the standard of care in a similar community was not followed, especially if different from the defendant’s community standard and if there is a conflict we should raise a due process, vagueness constitutional objection on the grounds that the law gives the jury no rational basis to choose which standard. The jury needs to receive “the missing instruction” that “if they find the standard of care was not followed in the similar community then the defendant is liable for medical malpractice.”

Update: excerpt from brief on locality rule, here.


Defective Chinese Dry Wall
Posted: March 30, 2009

Two U.S. Senators have filed a bill seeking a temporary ban on certain Chinese-made drywall, the latest effort to address problems with Chinese-made drywall believed to be emitting unpleasant, sulfurous odors and causing unusual air-conditioner problems in homes from Florida to Louisiana. Sens. Bill Nelson (D., Fla.) and Mary Landrieu (D., La.) introduced the bill, which also asks the Consumer Product Safety Commission to conduct a study in conjunction with the National Institute for Standards and Technology and the Environment Protection Agency. They want the study to include at least 10 samples of drywall that was imported from China during 2004 through 2007 and used in residential dwellings in the U.S. The study should include at least one sample of drywall from residences located in Florida, Louisiana, Mississippi, Texas and Virginia, according to the bill's text. The bill is called the Drywall Safety Act of 2009. Reports of problem drywall first surfaced in January in Florida, where home builder Lennar Corp. is suing two Chinese manufacturers of drywall, claiming the wallboard is defective and is causing electrical problems and emitting rotten odors in dozens of homes in the state. This month, the legal battle over the imported construction material spread to Louisiana, where a couple in a suburb filed a lawsuit against certain drywall manufacturers alleging the wallboard in their house was emitting a "rotten egg" smell, causing respiratory problems and corroding electrical equipment. More . . .


Assault Weapons Ban On the Table
Posted: March 27, 2009

I had posted here (2005) with outrage, the shameful decision by Senate majority leader Bill Frist to allow the U.S. assault weapons ban to expire and permit gun dealers to sell these true weapons of mass destruction. Fast forward four years and now U.S. Secretary of State Hillary Clinton, in Mexico, has called for a new U.S. assault weapons ban. Mexico's president Felipe Calderone ( with U.S. officials agreeing) states that "90% of the arms used by Mexican cartels come from the U.S." Picture here.


A Passage to India
Posted: March 24, 2009

Sometime in your life you become especially aware that we are on this earth with millions of other people who struggle to eke out a daily existence and yet have true happiness with no concern for wealth, the stock market or television. India is such a place. My wife and I just spent 10 days in India. Amazing place. Extreme poverty but tremendous wealth -- in the people. Here is a slideshow of our trip. Namaste.


Barack Obama: The Law Student
Posted: December 17, 2008

“I went to Harvard Law School spending most of three years in poorly lit libraries, poring through cases and statutes,” Obama wrote in his memoir, “Dreams from My Father.” Over the last two years, he hasn’t dwelled publicly on his HLS days—not surprising during a campaign where the label “elitist” proved a potent political epithet. But his time at HLS had an important impact on Obama, says David Mendell, who wrote the 2007 biography “Obama: From Promise to Power.” “I don’t think you can discount how much that period helped educate him and played a big role in his development,” says Mendell, a former Chicago Tribune reporter. It was as a law student that Obama first made history—and national headlines—when he was elected the first black president of the Harvard Law Review in the spring of 1990." Read more.


The Brutal Side of Fraternity Hazing
Posted: December 15, 2008

In 1994 I represented a college student at Tennessee State University who had been brutally hazed as part of his initiation to a Black fraternity. His name was Wardell Pride. He was a courageous young man who broke the code of silence and exposed the very sinister and sadistic side of college hazing. His story and the case was covered by the New York Times. "Lawsuit Shatters Code of Silence Over Hazing at Black Fraternities" (New York Times, December 21, 1994). His case was settled and he has gone on to lead a happy and successful life, including playing professional tennis.

Quite a different road and result for Brian Nichols. You may have read last week that Brian Nichols, the man who went on a shooting spree at a courthouse in Georgia was sentenced to prison last week (a life sentence without parole). Nichols shot and killed the Superior Court judge in his case, Rowland Barnes, and court reporter Julie Brandau, in Barnes’ courtroom. He shot and killed Fulton County sheriff’s deputy Hoyt Teasley on the street outside the courthouse, and U.S. Customs agent David Wilhelm later that night in Buckhead. In his defense his attorneys cited to his terrible childhood and to something that caught my attention and was all too familiar. Nichols had been the victim of a brutal hazing episode at a Black fraternity in college in 1990: "The witness said Nichols was subjected to brutal beatings during hazings when he was a fraternity pledge in the early 1990s at Newberry College in South Carolina. :

  • "Terrence Tyson, a member of the fraternity, said Nichols complained to him about the brutality of the paddlings, which went on for weeks. “It wasn’t normal hazing,” Tyson said. “It was abnormal. It was too rough.” He testified that Nichols complained about bruises and, at one time, went to the school nurse go get ointment to treat his wounds. He said Nichols said to him: ” ‘Man ya’ll are beating me like slaves,’ which we were. It was real violent.” Nichols eventually videotaped the hazings and gave the tape to school authorities. He was blackballed and not made a member of the fraternity, after he’d been led to believe he was being accepted. “They [fraternity brothers] just beat him and threw him out to the curb,” Tyson said."

For more details on the legal ramifications of hazing: Read here.


Law Offices of David Randolph Smith & Edmund J. Schmidt Announce Charitable Donation Program
Posted: December 10, 2008



A donation to Action Against Hunger is made by the firm from any attorneys' fees obtained by settlement or judgment. Action Against Hunger / Action Contre la Faim (ACF) is a global humanitarian organization committed to eliminating world hunger. Through integrated programs in nutrition, water and sanitation, and food security, ACF works to save the lives of malnourished children while ensuring families have access to safe water and sustainable solutions to hunger. Read more. Please donate here


Yes We Did!
Posted: November 4, 2008

  • "He seems slender and slight and young, astonishingly young, and you notice first of all, for it is impossible not to, the physical grace; he moves like an athlete much more than a politician, taking pleasure in his body: bursting up onto the stage, the lanky highly stylized movement, shoulders bent slightly concave, gathering everything into those constantly clapping hands, using the hands in their clapping to acknowledge the crowd, his head nodding all the while, as if he is drawing his energy only from them and showing that energy with his clapping and nodding, with the bursting energy of his body that is an embodiment of theirs, an embodied picture of what they're giving him. He prances with evident pleasure around the little stage, moving his head in big theatrical nods, embracing each politician in turn, big full-bodied embraces, and again one thinks of an athlete on the sidelines or in the dugout: all of it is done with the unhindered pleasure of the body, all of it says confidence and pleasure, as if this, being bathed in the huge cheers, taking sustenance and energy from the wave of sounds and the shouts of his name, is the place where he breathes his true oxygen, where he really lives. He seems made to be precisely here—in the midst of these thousands of sun-drenched cheering people. On this perfect mid-October day, there is only him and them and what is between them. "How's it goin', Northwest?" That salutation, and the enormous opening roar in response, tells you that he knows these people and they know him. "What a beautiful day the Lord has made!"

Posted: November 4, 2008

In June 1963, the California legislature passed AB 1240, the Rumford Act, a fair housing bill banning discrimination in the sale or rental of housing and to forbid lending institutions, mortgage holders, real estate brokers and others to practice discrimination in housing transactions. The Rumford Act was named after Assembly Member W. Byron Rumford.

In April 1964, a "Realtor's Initiative", Proposition 14, was put on the state ballot.  California has a long-standing, if somewhat peculiar tradition, of ballot propositions that can defeat acts of the legislature. The text of proposition 14 stated that it was an initiative to prohibit the State from denying a person the right to rent or sell property "to any person as he chooses." In effect, the initiative would have been a repeal of the 1963 Rumford Act. It would have permitted whites to not sell their homes to African-Americans or any person of color (or of any relgion).

Proposition 14, or the California Fair Housing initiative, became a focal point for the issue of racial discrimination and the civil rights movement in California. The Rumford Act preceded the 1964 and 1968  Federal Civil Rights Acts. 

My mother, Marilyn Smith and father, David Edward Smith were both graduates of Middlebury College (1950) and were  teachers in the San Mateo County public school district. They were active in opposing Proposition 14.

I was eleven years and attended school at Saint James Boys’ School in the Mission District in San Francisco. With my parents and others I went door to door and urged people to vote “No on 14” – to prevent overturning one of the earliest and most important Civil Rights measures ever enacted.

What I vividly remember --to this day -- was the face of racial hatred. Here I was a white Catholic 5th grader asking the person opening the door to vote against discrimination and "No on 14." There were sneers, name-calling and seething anger. All too many white people simply refused to accept that they could not discriminate against minorities (especially blacks) in housing and real estate.

Proposition 14 passed in 1964 election but was declared unconstitutional by the the California Supreme Court, whose ruling was affirmed by the U.S. Supreme Court in Reitman v. Mulkey, 387 U.S. 369 (1967). This United States Supreme Court decision set an important legal precedent that states could remove a constitutional amendment passed by initiative, if the proffered amendment "encouraged" racial discrimination. In 1968 Congress outlawed discrimination in housing at the federal level.

Today, hopefully, we will elect a black man president of the United States.  In doing so we move towards the day when racial hatred will be absolutely unacceptable and intolerable in America. Hope. Change. Obama.


Tennessee Court of Appeals Declares Three-Year Statue of Respose in Medical Malpractice Cases Unconstitutional as to Minors Injured Before Calaway
Posted: October 30, 2008

In a case argued by David Randolph Smith to the Court of Appeals on September 8, 2008, on October 29, 2008, in a 2-1 decision the Tennessee Court of Appeals ruled in Crespo v. McCullough that Tennessee's three-year statute of repose in medical malpractice cases could not be constitutionally applied to minors injured before December 9, 2005. The Court ruled in favor of the minor-plainitff Laura Crespo and held that the constitutional guarantees of due process and equal protection of laws were violated by applying the three-year statute of repose to minors who were injured prior to the Supreme Court's decision in Calaway v. Schucker, (12/09/05). In Calaway the Tennessee Supreme Court held (3-2) that the three year statute of repose in the medical malpractice statute trumped the legal disability statute for minors and, contrary to prior law, minors did not have until age 19 to sue for medical malpractice. The Supreme Court decision in Calaway, however, did not consider or address any contitutional issue or challenge. The Court of Appeals accepted the argument advanced by the Crespos that the constitutionality vel non of the three-year statute of repose as applied to minors injured before the date of the Calaway decision was an issue of first impression.

  • The majority opinion by Judges Susano and Franks:
  • The dissenting opinion by Judge Swiney:

U.S. Supreme Court to Hear Oral Argument in "Business Case of the Century
Posted: October 30, 2008

On November 3rd the Supreme Court will hear the case of Wyeth v. Levine, which has been called the “business case of the century”—and with good reason. In essence, Monday’s ruling will decide if patients have the right to sue pharmaceutical companies for personal injuries stemming from prescription drugs approved by the Food and Drug Administration (FDA). The Court has agreed to decide whether a musician who lost her arm after receiving an anti-nausea drug via an off-label injection method may recover under Vermont tort law despite FDA approval of the drug's label.

The case, Wyeth v. Levine, No. 06-1249, arose when Diana Levine went to the hospital suffering from nausea associated with a migraine headache. Physicians initially gave her Phenergan, a drug manufactured by Wyeth, by injecting it into her muscles. When her nausea persisted, they gave her the drug using the so-called "IV push" method, involving injection of the drug into her vein. They bypassed administration via an IV drip. The drug made contact with her arteries, leading to gangrene and forcing doctors to amputate her arm.

The Phenergan label had been approved by the FDA in 1955, and re-evaluated and approved in the late 1980s. Wyeth knew that if the drug reached the arteries it could cause gangrene. Its approved label cautioned that if the drug were administered by and IV drip, care should be taken to avoid arterial exposure and noted the risk. The label did not mention the IV push method of injection, and evidence suggested that the FDA did not evaluate whether the label should address the risk associated with the IV push method.

After settling with her health care providers, Levine went to trial against Wyeth. A Vermont jury awarded her $6.7 million, concluding that Wyeth had failed to warn of the risks associated with IV push administration of Phenergan.

On appeal, the Vermont Supreme Court ruled that the state tort claim was not preempted by the FDA approval of the Phenergan label. The state high court reasoned that it would have been possible for Wyeth to provide the FDA-approved label and additional warnings cautioning against IV push administration. It further found that requiring Wyeth to do so would not obstruct any goals of the federal Food, Drug and Cosmetic Act.

Seeking certiorari, Wyeth argued that state court are often asked to hold drug manufacturers to different standards than those set by the FDA, creating a situation of national urgency. Moreover, the drug company contended, the FDA's labeling requirement did not merely set a minimum standard for release of drug information, but took into account all the risks and benefits associated with Phenergan and opted for a label that reflected the best level of information to achieve optimal use of the drug. Finally, the company argued, compliance with the Vermont tort standard would frustrate the FDA's goal of optimal Phenergan use by basically prohibiting its administration via IV push.

Resisting review, Levine compared the case to Sprietsma v. Mercury Marine, 537 U.S. 51 (2002), where the Court held that an Illinois tort recovery for boat injuries that could have been avoided with a propeller guard were not preempted where a federal agency had considered requiring guards but eventually dropped the issue. Here, Levine argued, Vermont should not be prevented from applying its tort law where the FDA never considered whether to include a prohibition on the IV push method on its label.


Potemkin Prevarications:
Posted: September 9, 2008

From Wikipedia: Potemkin villages were fake settlements erected at the direction of Russian minister Grigori Aleksandrovich Potemkin to fool Empress Catherine II during her visit to Crimea in 1787. Potemkin, who led the Crimean military campaign, had hollow facades of villages constructed along the desolate banks of the Dnieper River in order to impress the monarch and her travel party with the value of her new conquests, thus enhancing his standing in the empress's eyes.

Sarah Palin, from the village of Wasilla, Alaska has taken the center stage of American politics. To impress her new audience of admirers, like Potemkin, she has paraded out walls of falsehoods and half-truths. She earnestly peddles a grand façade of lies and half-truths (and then leaves the stage to the cheers of the Potemkin/Palin villagers at McCain-Palin rallies and takes no questions). Here are some examples of Palin's prevarications delivered from her teleprompter at the St.Paul convention and in "McCain Country":

  • I told the Congress "thanks, but no thanks," for that Bridge to Nowhere. A lie. She supported it as a candidate and as governor and moved away from support only after Congress killed the project. She kept and spent the money to boot.
  • That luxury jet was over the top. I put it on eBay. A lie/materially misleding. There were no bids, it was taken off ebay and sold through a broker at a loss to the state. Moreover selling on eBay was not her idea, it was standard pratcice in Alaska before this jet was put on eBay.
  • Against pork barrel entitlements: A lie. Alaska, during her tenure as governor was singulalrly successful in asking for and getting massive federal pork spending.
  • Obama’s “Present” Votes Somehow Gutless or Stupid: A lie. Voting "present" was a respected and well-recognized parliamentary procedure in Ilinois that Obama used adriotly.
  • Community Organizers Don’t Have Responsibility: A lie. Obviously.
  • That Obama “talked bitterly” on a radio interview in San Francisco that people in small towns cling to guns and religion: A lie. Obama said said economic problems had led voters in some small towns to become "bitter" and "cling to guns or religion." Palin left out the ecomomic problems point and faslely charged Obama "talked bitterly."
  • That she took on the old politics as usual in Juneau and stood up to the special interests, the lobbyists, big oil companies, and the good-ol' boys network. A lie.
  • I also drive myself to work. A lie/half-truth. If Juneau (the capitol) was her home base, she charged taxpayers to get to work in Juneau and charged taxpayers for the drive from Wasilla to Juneau.
  • And I thought we could muddle through without the governor's personal chef. A lie. The chef was reassigned when she moved to Wasilla and she charged the state for her meals at home.
  • And when that deal was struck, we began a nearly forty billion dollar natural gas pipeline to help lead America to energy independence. That pipeline, when the last section is laid and its valves are opened, will lead America one step farther away from dependence on dangerous foreign powers that do not have our interests at heart. A lie. Although Governor Palin approved the building of the pipelline by granting a license to TransCanada Corp., the necessary permits have not (and may never be obtained). Palin implies that construction has begun on a major natural gas pipeline from the top of Alaska into Canada. That is not correct.In fact, no building has begun and actual construction is years away, if it ever happens. This summer the Alaska Legislature, at Palin's request, passed a bill under which the state will issue a "license" to a Canadian energy company, TransCanada Corp., and pay it up to $500 million as an incentive to someday build this enormous project, which Alaska politicians have long sought with little success. The license is not a construction contract, and federal energy regulators have not yet approved the project. Palin also puts the price tag for the project at $40 billion, an exaggeration. This is roughly $10 billion more than most cost estimates industry players and consultants have made to date.
  • Terrorist states are seeking nuclear weapons without delay ... he wants to meet them without precondition. A lie/half-truth.Obama said the military option is "on the table" for dealing with Iran's nuclear program, and in contrast to earlier statements, he said he would meet with Iranian leaders "if and only if it can advance the interest of the United States."He made it clear that we should not expect a President Obama to be sitting down with Iranian President Mahmoud Ahmadinejad any time soon: "[A]s president of the United States, I would be willing to lead tough and principled diplomacy with the appropriate Iranian leaders at a time and place of my choosing if and only if it can advance the interest of the United States. That is my position. I want to be absolutely clear."
  • Victory in Iraq is finally in sight ... he wants to forfeit. A lie again. McCain-Palin and have not clearly defined "victory" and Senator Obama's plan for a phased redeployment and transfer of military responsibility is hardly a forfeit. In fact the Iraqi prime minister backed Obama's timetable plan!
  • Al Qaeda terrorists still plot to inflict catastrophic harm on America ... he's worried that someone won't read them their rights? A lie. Most persons of average intelligence know that the Miranda case requires telling a suspect that they have rights (rights to remain silent, right to counsel, etc.). Obama has never suggested that terrorists or enemy combatants should enjoy Miranda (read them their rights) protection. What Obama has been in favor of (as the U.S. Supreme Court ruled in Boumediene v. Bush) is the fundamental human/legal right of the writ of habeas corpus for persons charged by military tribunals. Sarah Palin's (Bush's speechwriter's) mockery of this constitutional protection would return the U.S. to the Star Chamber and Spanish Inquisition (which perhaps she really is in favor of). This is a village idiot argument made by extremists who are truly ignorant of what the writ of habeas corpus means.

Sarah Palin, with her effective "let me tell you something" delivery of a "hockey-mom" is simply reading what George Bush's speechwriter puts on the teleprompter. Bush, Palin and McCain have corrupted (or perhaps adopted as their mantra) Churchill's famous line: "In wartime, truth is so precious that she should always be attended by a bodyguard of lies."


Sarah Palin's Criminal Record
Posted: August 29, 2008

  • A Westlaw criminal records search shows that in 1993 Sarah Palin pleaded no contest to criminal failure to register for commercial salmon fishing. She was also charged with commercial fishing without proper identification.
  • The permit to fish in Bristol Bay (where sockeye salmon gather en masse for a brief period of 10 days) costs tens of thousands of dollars. By fishing without a commercial license/permit Sarah Palin cheated and pleaded no contest to criminal negligence. So she crossed the ethical/criminal line well before "Troopergate" (where she is under investigation for misusing her position as Alaska's governor to get her brother in law fired as a state trooper to help her sister's custody battle in state-court).
  • The permit law, price aside, is designed to protect the salmon population and equalize the setting as between drift and shoreline commericial sockeye salmon fishing:
  • 5 AAC 06.370. Registration and reregistration. (a) Before taking salmon in Bristol Bay, each commercial salmon set gillnet or drift gillnet CFEC permit holder shall register for a district described in 5 AAC 06.200. Each drift gillnet permit holder also shall register for the same district the drift gillnet vessel that the permit holder will be operating. Initial district registration is accomplished by completing a registration form provided by the department and returning the completed form to the department office in Dillingham or King Salmon. For the purposes of this section, a CFEC permit holder and a drift gillnet vessel may be registered in only one district at a time.
  • The Alaska Supreme Court upheld the law in Meier v. State, Bd. of Fisheries 739 P.2d 172 Alaska,1987. A commercial salmon fisherman must register in a district before he may fish there. 5 AAC 06.370(a). The Board of Fisheries promulgated 5 AAC 06.370 in 1986. Commercial salmon fishermen may operate either set gillnet gear or drift gillnet gear in Bristol Bay. 5 AAC 06.330. Setnet fishermen work from shore, and generally remain at the same location throughout the season. Driftnet fishermen work exclusively from boats, and are by definition more mobile. Although some driftnetters confine their activities to one area of the Bay, others prefer to “follow the fish.” The percentage of the total fish harvest achieved by setnetters depends on the number of driftnetters fishing offshore. If driftnetters saturate an area, few fish reach the beach where setnetters have an opportunity to catch them. An obvious effect of the waiting period in 5 AAC 06.370(b) is to discourage mobility among Bristol Bay salmon fishermen. Because driftnetters are more mobile than setnetters, the waiting period burdens driftnetters more heavily.

Obama @ Google
Posted: August 5, 2008


Vincent Bugliosi's Latest
Posted: June 3, 2008

  • A simply fascinating, dare I say brilliant, legal analysis. Available here.

Assault Weapons & Tort Liability

  • The tragic deaths in Nebraska and Colorado involved high powered assault rifles. Apart from the controversy over Congress having let the assault weapons ban expire (which covered AK-47 rifles) one issue worth considering is whether strict liability (against the gun seller or owner) might prevent mass killings.
  • Vicarious liability assigning strict liability to the gun owner for firearms casualties that occur when a careless gun owner loses proper custody and control of his firearm might deter or reduce mass gun killings. In the Nebraska case the AK-47 was left by the owner in an unlocked closet.
  • The District of Columbia enacted the Assault Weapon Manufacturing Strict Liability Act of 1990. This statute provides that the manufacturer, importer, or dealer of an assault weapon can "be held strictly liable in tort, without regard to fault or proof of defect, for all direct and consequential damages that arise from bodily injury or death" resulting from a shooting in the District of Columbia. The statute applies to all semiautomatic firearms with a capacity of more than 12 rounds, as well as specific guns identified as assault weapons in the statute. The viability and constitutionality of this statute is being challenged by gun manufacturers.
  • Highly dangerous weapons should simply not fall into the hands of mentally ill or unstable individuals. Laws that imposed strict liability on careless owners or gun sellers in such settings should be passed at both the federal and state level.

Lead Paint Litigation: Justice or Money?

Posted: December 9, 2007

  • Joe Nocera, a business columnist for the New York Times, criticizes the lead paint/public nuisance litigation spearheaded by the Ness Motley firm in an article titled: "The Pursuit of Justice or Money?"
  • Nocera finds fault in the idea of using a public nuisance theory to hold lead paint manufacturers liable as a group even though the plaintiffs (in this case the State of Rhode Island) cannot identify the specific manufacturer of the lead paint. Although market share liability (the Sindell v. Abbott Labs case) has not been widely adopted, its theory and intellectual weight remain, in my view, compelling and appropriate for a case in which, had there been perfect records each manufacturer, would surely be found at fault but for the "failure" of proof regarding the identity of the product manufacturer. The public nuisance theory works because it is the State that is bringing the case.
  • Nocera writes:
    • "But what are the companies supposed to do? Let Motley Rice bankrupt them because of something they did three decades ago that was perfectly legal? When I asked Dr. Landrigan why he was working for the plaintiffs he said: “The removal of paint from apartment buildings is expensive. States and cities are chronically underfunded. So basically, getting a judgment against the companies is a way to get revenue to do the removal.” You will never hear a purer distillation of the real motivation for bringing these suits. The companies have lots of money, so make them pay — no matter what the evidence."
  • Nocera misses the point. The whole legal premise and rationale for strict product liability is that manufacturers are in a better position to spread the risk and cost of defective products (like lead paint). Every first-year torts student reads Justice Roger John Traynor's concurring opinion in Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal. 2d 453, 150 P.2d 436 (1944). Traynor advanced a number of justifications for strict liability: negligence is often too difficult to prove; strict liability can be accomplished through a series of actions for breach of warranty; strict liability provides needed safety incentives; the manufacturer is in the best position to either prevent the harm or insure or spread the cost of the risk; and the manufacturer of a product induces consumer reliance on the expectation of the product's safety and should be made to stand behind the product.
  • In the lead paint litigation the product is defective and it matters not that the manufacturers were allegedly unmindful of the risk just as it did not matter whether Coke knew there was a glass shard in the Coke bottle: the product was defective so the manufacturer must pay for the harm.

Barack Obama: Lawyers & Public Service


Posted: December 7, 2007
  • Senator Barack Obama has written a stirring Foreword to Volume 2 of the Charleston Law Review (Fall 2007):
  • "Law is the language of power. It is a language that helps resolve conflicts, governs the order of transactions, and distributes the rights to property and power. It is a language that describes the legitimate exercise of force by the state and defines the limits of protest against that force. Law is the language not just of courts and of contracts but of everyday life. It speaks to the constraints and commitments we accept as citizens in a nation under the rule of law. Because lawyers are trained in the language of law, we have a special responsibility. We are not like other professionals with a skill to sell to the highest bidder. We are not merely technicians implementing faithfully the designs of others. We are often relied on to be participants in the debate over rights and power; we are called on to be stewards of public order, justice, and democracy; we are called on to be architects and catalysts both for making real the American Dream, and for protecting people from abuse around the globe. We are called on for our judgment and counsel, not just our ability to use the language to any advantage. .
  • Available here . . .

Compliance With Government Standards, Pt. 2

Posted: December 4, 2007

  • Medtronic Inc. and other medical- device makers have a chance to win a new shield from patient lawsuits in a case before the U.S. Supreme Court.
  • In arguments today in Riegel v. Medtronic , the justices will consider whether patients can press product-liability lawsuits over devices cleared for sale by the Food and Drug Administration's most rigorous approval process. A federal appeals court barred a suit that claims a New York man suffered permanent injury when a Medtronic heart catheter burst during an angioplasty.
  • More . . .

"The First Thing We Do, Let's Kill All the Lawyers"

Posted December 1, 2007

  • Two of the nation's most prominent plaintiff's attorneys are facing federal criminal charges. Geoffrey Fieger of Southfield, Michigan is set for a trial in January 2008 for allegedly violating a federal campaign contribution law in connection with the 2004 Presidential election. Mississippi attorney Dickie Scruggs has been indicted on federal bribery charges for allegedly offering $50,000 to a Mississippi state-court judge. In both cases the FBI descended on the offices of the attorneys and searched the attorneys' files and records. Time will tell if these charges will stand. One has to seriously question whether the anti-plaintiffs' lawyer rancor of the Administration has played a role in the prosecutions.
  • When Shakespeare described the first order of business for the triumph of anarchy and despotism his character Dick the Butcher uttered his famous line: "The first thing we do, let's kill all the lawyers." King Henry VI, Part II, (Act IV), Scene 2. Dick the Butcher, in Shakespeare's play is a follower of anarchist Jack Cade, whom Shakespeare depicts as “the head of an army of rabble and a demagogue pandering to the ignorant,” who sought to overthrow the government. Shakespeare’s acknowledgment that the first thing any potential tyrant must do to eliminate freedom is to “kill all the lawyers” is, indeed, a classic and well- deserved compliment to our distinguished profession.

Compliance With Government Standards

Posted: Novcember 29, 2007

  • The Tennessee Supreme Court has heard oral argument in this products liability suit (against Daimler Chrysler) where the essential defense from Chrysler is “we complied with federal safety standards, therefore we cannot be liable for punitive damages.” Flax v. DaimlerChrysler Corp., 2006 WL 3813655 (Tenn. Ct. App., 2006). The case involved a defective seat and a federal motor vehicle safety standard for seatback strength. The jury awarded $98 million dollars in punitive damages and the trial court remitted the punitive damages award to $20 million. The Tennessee Court of Appeals reversed, accepted Chrysler’s compliance with regulations argument and vacated the punitive damages award. Chrysler’s argument, that compliance with federal standards precludes punitive damages, should lose.
  • Does the Ford Pinto case come to mind? In Grimshaw v. Ford Motor Co., 119 Cal. App. 3d 757 (4th Dist. 1981) the California Court of Appeal for the Fourth Appellate District reviewed Ford's conduct and upheld compensatory damages of $2.5 million and punitive damages of $3.5 million against Ford. Of the two plaintiffs, one was killed in the collision that caused her Pinto to explode, and her passenger, 13-year old Richard Grimshaw, was badly burned and scarred for life.
  • Regulatory agencies, at the state or federal level, are subject to “capture” by the very industries they purport to regulate. The classic case in law, history and economics is how the railroad industry captured the I.C.C. for its own purposes. In 1887 Congress created the Interstate Commerce Commission to regulate railroads. After President Grover Cleveland appointed Thomas M. Cooley, a railroad ally, as its first chairman, the commission quickly fell under the control of the railroads, gradually transforming the American transportation industry into a cartel. By 1935, when it was given oversight of the trucking industry, the commission was restricting competition and enabling price increases throughout virtually the entire surface transportation industry. Decades later, in 1970, a report released by a Ralph Nader group described the commission as “a forum at which transportation interests divide up the national transportation market.”
  • The NHTSA (National Highway Traffic Safety Administration) promulgates federal motor vehicle safety standards and it is no stranger to ossification and capture. See Jerry L. Mashaw & David L. Harfst, Inside the National Highway Traffic Safety Administration: Legal Determinants of Bureaucratic Organization and Performance, 57 U. Chi. L. Rev. 443 (1990). In this study the authors concluded that NHTSA has shifted away from developing new auto safety standards in order to avoid judicial reversal. And that “devastating” losses in rulemaking litigation in the early 1970s led NHTSA to retreat from rulemaking. They claim that most of NHTSA’s safety standards were put into place before 1974 and none were issued since 1976 (as of the 1990 article). They also argue that, instead of issuing new rules, NHTSA shifted its efforts toward increasing the number of recalls of defective vehicles, an approach which they argue leaves NHTSA less susceptible to judicial reversal.

  • We should also remember the curious case of Lee Iacocca and Richard Nixon retold in a PBS Frontline episode: available at http://www.pbs.org/wgbh/pages/frontline/shows/rollover/nixon/
    • "On the morning of April 27, 1971, Henry Ford II and Lee Iacocca -- the chairman and president, respectively, of Ford Motor Company -- sat down in the Oval Office for a private meeting with President Richard Nixon. (See the photograph above.) At that moment the National Highway Traffic Safety Administration (NHTSA), the fledgling federal auto-safety agency that grew out of Ralph Nader's consumer crusades of the mid-1960s, was gathering momentum in its push to regulate Detroit's Big Four automakers. At the top of the agency's agenda was a proposed safety regulation, strongly favored by Nixon's Secretary of Transportation, requiring "passive restraints" (usually airbags) on all new cars. Throughout its history, whether the issue was airbags or SUV rollovers, NHTSA's mission has been hampered by political intervention. Nixon's meeting with Ford and Iacocca can now be seen as an early and dramatic example of the auto industry flexing its political muscle to influence, and even thwart, impending regulations. Here's the story of Nixon's dance with Detroit in 1971, as told through a series of recently released White House documents and a tape recording of the Oval Office meeting which has never been broadcast, and which FRONTLINE presents here on the Web for the first time. The documents and the recording were provided by the Nixon Presidential Materials staff at the National Archives."

Medical Malpractice

  • The Tennessee Court of Appeals in White v. Premier Med. Group (Nov. 29, 2007) affirmed a defense verdict in a medical malpractice case where the plaintiff had alleged on appeal the trial court improperly gave a superseding cause jury instruction.
  • In Hill v. Giddens (Nov. 29, 2007) the Tennessee Court of Appeals affirmed a summary judgment for the defense because the plaintiff's expert failed to satisfy the locality rule.