By Karen MacNutt,
Contributing Editor

"Barratry: The offense of frequently exciting and stirring up quarrels and suits."

"Champerty: A bargain by a stranger with a party to a suit, by which such third person undertakes to carry on the litigation at his own cost and risk, in consideration of receiving, if successful, a part of the proceeds or subject sought to be recovered. 'Maintenance' consists in maintaining, supporting, or promoting the litigation of another."

"Common law" is an unwritten set of community standards used by courts to judge peoples' behavior. It was developed over hundreds of years in England and the United States. Unlike countries such as France where every aspect of the law is written out in codes, the Anglo-America system of law is governed by an evolving system of common or customary law based upon precedent. For example, robbery is a crime in all states. In many states, however, you will not find a definition of "robbery" in the statute books. "Robbery" is defined by the common law. Likewise you may be made to pay damages if you are negligent and injure someone.

"Negligent" is a legal word for careless. "Negligence" is defined by the "common law." It is generally held to be a failure to follow the standard of care that reasonable people in a given area would follow given the circumstances. For example, what might be a proper medical care rendered by a doctor at the scene of an automobile accident, could be negligent if the same conduct occurred at Boston Medical Center. What is reasonable varies with the circumstances. Common law changes gradually over time as community standards change.

At common law a person was only liable (that is only had to pay damages) if they had a duty of care to someone (including the public), failed to do something they had a duty to do, someone was injured, and the injury was the proximate (the direct) cause of the act or failure to act.

For example, if there is a large pot hole in the public street in front of my house, I have no duty to repair it. If you fall into the pot hole and are hurt, I am not responsible. (No duty.) If I decide to fix the pot hole but do a poor job, you fall into the hole and are hurt because of my poor repair, you can recover damages from me. That is because once I undertook the repair, I had a duty to everyone who might use the street to make a proper repair. If I failed in that duty, and someone is hurt, I can be made to pay damages.

Assume the same example. This time, as you are walking across the street, a person on a bicycle runs into you and pushes you into the hole. I am not responsible because my actions in poorly fixing the hole was not the direct cause (proximate cause) of your injury. There was an intervening cause, the person on the bicycle.

Under common law, barratry and champerty were considered great evils. Lawyers who stirred up lawsuits to make money, or who financed lawsuits out of their own pocket, could be barred from the practice of law. Those admonitions are less stringent today but still exist in most states. In the mid-20th century, people who wanted to force social change using the courts rather than legislatures started using the term "social engineering" to describe their actions rather than the more onerous term of "barratry."

Unlike the gradual changes that occur in the common law, the proponents of judicial activism wanted the courts to impose sweeping social changes without regard to the elected representatives of the people or traditional community standards. Their use of the courts for social change demonstrated their contempt of the average American and the democratic process.

Some years ago the anti-gun movement shifted its focus from the legislative process to the courts. They recruited big city mayors to finance kamikaze legal attacks on gun manufacturers. Their goal was gun control by destroying the ability of citizens to buy guns. The fact that putting the manufacturers out of business would also hurt the ability of cities to arm their police departments was ignored.

One theme of the suits was that manufacturers should be held liable for the actions of third parties over whom they had no control (intervening cause). The manufacturers argued on the basis of the common law that there was no proximate cause between their conducting a lawful business and the injury. Further, they did not fail to perform any duty required of them by law in the manufacturing and sale of their product.

The anti-gun groups wanted to change the standards of negligence to financially destroy the firearms industry. If they change the standard, however, the new standard of saying industry is responsible for the misuse of its products, would be disastrous. Such a standard would make some lawyers wealthy but would destroy much of our remaining industry and put thousands of common people out of work. This possibility did not deter the anti-gun movement but it did inspire Congress to pass legislation to protect industry. As of this writing, most, but not all, of the suits against manufacturers have been dismissed.

That has not deterred the anti-gun movement. They devised sting operations to entice dealers into sales that they then argued are illegal "straw man" sales. The fact these "sting" operations may compromise legitimate law enforcement investigations is lost on the anti-gun movement. Based on their own vigilante actions, they then file civil actions against the dealer. Most dealers are small businesses. Defending against a civil suit is very expensive and destructive of the business.

Dealers have settled suits they thought were groundless because the expense of defending themselves was prohibitive. That is, the anti-gun movement has taken to violating the law, entrapping (or sometimes lying to) dealers, to use the legal system to extort something of value from the dealers. There is a name for that in the law. It is called racketeering. Their actions are not directed at criminals, but they want to shift the responsibility for crime onto the average citizens trying to comply with the law.

The intent of the anti-gun movement is laid out on the Legal Action Project web page of the Brady Center:

"For too long, those who make and sell guns have escaped responsibility. . . . The Legal Action Project is changing that in courts across the country, the Project's lawyers offer free help. . . . In some cases, the Project serves directly as counsel for the individuals bringing the lawsuit at no cost to the victim. In others, the Project provides pro bono help to private lawyers who represent the plaintiffs. . . ."

In the 85 or so lawsuits supported or brought by the Brady Center, there was an attempt to shift the responsibility for crime or accidents from those directly responsible to someone, manufacture or dealer or individual, who may have owned a gun at some time in the past but had no control over it at the time of the injury. This is in violation of the cornerstone of the American justice system which is that individuals are held accountable for their own wrongful acts.

The thrust of the Brady Legal Program is to focus responsibility away from the criminal or person directly responsible for an injury. It goes after private individuals whose only "crime" is that they own guns. In many cases, the gunowners are the same people who are the victims of the very perpetrators the Brady Legal Program chooses to release from responsibility. The fact that a city might not adequately man, train or fund its police department is of no interest to the Brady Center. Nor is it concerned with the types of heavy handed civil rights violations that drive a wedge between the community and law enforcement.

They are trying to develop a line of cases that will alter the common law to establish liability against persons other than the individual who directly causes a harm. They want some court to rule that an owner of a gun, or other people that might have some relationship to the owner of a gun, are liable for injuries caused by those who might misuse the gun.

The point is, if the only thing a person can do to protect him or herself from having to pay damages for the actions of people over whom he or she has no control, is to not have a gun, then perhaps the honest people who are subject to these lawsuits will willingly stop owning guns. This, of course, has no impact on the dedicated criminal element who do not worry about getting sued because they do not have any money from which to pay a judgment.

The traditional standard of liability (having to pay damages to someone) says that you are responsible if you fail to take reasonable steps to do, or not do, something and that there was foreseeable harm from your act or failure to act and that harm actually did occur. You are not responsible if some other factor beyond your control contributed to the injury. You are generally not responsible if someone steals something of yours and hurts someone with it or uses something of yours without your permission.

The Brady Legal Project ispushing to establish a legal theory that the storage of guns by a private person, specifically someone who has the guns lawfully, is itself a public nuisance regardless of any other factor. They argue that guns are ultra hazardous and injury to others from the theft of the guns is predictable. Therefore the owner or person in charge of the storage of the guns should be held responsible for any damage a thief or unauthorized user might make of the guns. Of course the same argument could be made for any number of household items including alcohol and cars.

The Brady Center's target in these cases are the average people and their home insurance companies. The dishonesty of the anti-gun leaders' claim that all they want are "reasonable" laws is clear. They want courts to rule that the private storage of guns should subject the owner to liability without regard to any negligence on the part of the owner. In light of that, any claim by the Brady's or people like John Rosenthal (who argued manufacturers were soliciting criminals because gun finishes were "resistant to finger prints") that they too are gunowners, is high hypocrisy.

In the recent Massachusetts case of Jupin v. Kask, the Brady Center, together with a combination of anti-gun groups, made the following statement in their "friend of the Court" brief:

". . . the responsibility for ensuring that privately-owned guns do not fall into unauthorized hands should not always rest solely with the gun owner; the responsibility should extend as well to a property owner who has agreed to allow guns to be stored on his or her property. Guns are highly dangerous instrumentalities. . . . When a property owner permits an unrelated gun owner to store his guns on her property, the property owner may be as capable or even more capable than the gun owner of controlling access to the guns by third parties. . . ."

That is, they wanted the owner of the house to be liable because an occupant of the house stored a gun on the property.

Citing the Reida v. Lund case from California, the brief went on to state, "A person who allows firearms to be stored on his or her property 'is held to the highest standard of due care. . . , even a slight deviation from which may constitute negligence. . . .'"

At this time, most courts do not permit a land owner to prohibit a tenant from owing guns. The Brady Project brief is a window to their thought process and goals. It clearly lays the ground work to intimidate landlords into not allowing tenants to own guns. If the Brady Project came out and said, "We don't trust poor people or minorities and society should discriminate against them," there would be a huge outcry. Yet this is the practical results of their policies if they are successful.

Gunowners are concerned with safety. They must, however, be careful that their desire for safety is not turned against them. The Brady Project is attempting to create a standard of care for the storage of guns, that makes it impossible to keep a gun for self-defense and undesirable to keep a gun for any purpose.

Obviously guns should be stored in a manner that discourages unauthorized access. What is reasonable storage will change with circumstances. Reasonable storage is not, and should not be, a guarantee to the world that no one can gain unauthorized access to that gun. You should not be held responsible because there are dishonest people in the world. As will be discussed in the next edition, there is an attempt to twist safe storage laws so as to victimize the gunowner twice, once when the thief steals the gun and once when the gunowner is held accountable for the misdeeds of the thief.