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Brady Center Dives in to Hain Case

The Brady Center is offering legal aid to the Lebanon County sheriff, in a one million dollar lawsuit that Ms. Hain plans to file against him.  I have not seen the case, but given that it’s being filed in federal court, I’m guessing it’s a section 1983 suit.

One could easily dismiss this as a desperate ploy for attention by the Brady Center, but I don’t think so.  Based on commentary I’ve seen in local news articles surrounding this suit, the communities are rather outraged about the suit.  This was an opportunity for them to be seen in a positive light by folks in what normally is a part of the state not entirely warm to their cause.  Their involvement is strategic, and I think this was smart for them.  They see an opportunity to benefit themselves, and damage us, and I think that opportunity is there.

Taking a 1983 suit into federal court, based on the Second Amendment, and relating to concealed carry, is an incredibly unwise move at this point in time.  This could possibly set precedent for the entire Third Circuit, and possibly the entire country if it’s willing to go far enough.  If we’re going to challenge arbitrary licensing, I think there are better examples of that than Pennsylvania’s concealed carry law.  A mom openly carrying to a kids soccer game would also not be my first choice of plaintiff for the case.  We also don’t even have definitive incorporation of the Second Amendment at this point in time.

If this case goes forward, it’s likely to end badly for us, and will stick us with bad precedent that could be very difficult to overcome.  Keep in mind that New Jersey is also in the Third Circuit, and has a number of very bad and arbirary licensing guidelines, even relating to guns in the home.  I’d hate to screw future cases over a lawsuit where I don’t think the issue is ripe.

21 Responses to “Brady Center Dives in to Hain Case”

  1. Blake Sobiloff says:

    I can’t share your pessimism, Sebastian. The Sheriff arbitrarily took away Melanie’s concealed carry permit when no law was broken. That action caused Melanie to spend a lot of money to defend herself, and the ensuing defamation of character cost her current and future work. The Government deprived her of her livelihood and her rights without due cause and should be forced to provide restitution, plus takes steps to ensure that such actions don’t happen again.

    This seems straight-forward to me, and I don’t see any support for your assertion that suing in Federal court “is an incredibly unwise move at this point in time.” Of course it’ll set a precedent, just like any legal case does (or follows existing). What would be a better example? I don’t think she even needs to rely on incorporation since PA’s constitution clearly enumerates the right.

  2. VariableFeedback says:

    I tend to agree with Sebastian on this one.

    Even setting aside for now the question of the timing of the suit given the societal climate, the merits of the suit seem questionable at best. While Hain broke no laws while open carrying to soccer game, and the sheriff was absolutely wrong in revoking her LTCF, the alleged defamation of character was caused by Hain’s decision to be seen open carrying in front of potential clients, not by the Sherrif’s actions. If someone is going to appear outside the social norm (and that is where open carry currently is in PA), he of she needs to be prepared to accept the social consequences of that decision. Should the sheriff be held responsible for her legal fees in appealing the revocation? I believe so, but should the sheriff be held responsible her husband’s loss of his wife’s “companionship, consortium, society and services” as a result of the harm she has suffered? I don’t believe so.

  3. Tom says:

    I’ll bite.

    This is the NRA argument. “It’s not the right case” and meanwhile it continues and becomes the accepted position of government to violate and persecute those who don’t go along with the herd.

    The community is MORE concerned over a “frivilous” lawsuit then with rights. That’s the damn problem.

    They’ll probably offer her a settlement and she’ll have the audacity to decline it and make an example of people violating other’s rights. Just like all those who have done so before her.

    I just hope she has a good lawyer who can tie her rights into those of the sheeple. Oh, and by the time she sees ANY money the government will have already taken it’s cut, and the lawyer, so IF it was about money she’d take any offer they give her. (By the time it gets heard it’ll be The Barack Obama’s tax rate and she’ll have made over $250K)

  4. RKV says:

    As in Heller (aka Parker) the time has come to close ranks, support our rights and do this properly. Hopefully some of the big guns will get involved and support the litigation. As I recall the NRA wasn’t real happy about Parker when it was filed. And yes the result was way closer than we’d like. The facts are very straightforward in this case. Commonwealth v. Hawkins (1996) clearly states that open carry, in and of itself, lacking any actual threatening or illegal behavior on the part of the person open carrying, is not grounds for a “stop and ID” by police. There are some limits with respect to court facilities, federal buildings, motor vehicles and cities of the first class (Philadelphia). The facts indicate that this lady was not limited by those specific exceptions.

  5. RKM says:

    I semi-agree with Sebastain. This should have stayed in-State at least for one more evolution. She would not have recouped any money (yet) but she could have charged the LEO’s with:

    S 195.00 Official misconduct.
    A public servant is guilty of official misconduct when, with intent to obtain a benefit or deprive another person of a benefit:
    1. He commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized; or
    2. He knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office. Official misconduct is a class A misdemeanor.

  6. RKM says:

    ETA:

    And then upon convictions, the State with Section 1983.

  7. Sebastian says:

    Blake:

    That might be true, but this is a 1983 suit. The argument here isn’t that the Sheriff damaged her reputation, but that he violated her civil rights. We might believe that, but convincing the courts of that is another thing entirely. I’m not arguing the case is wrong on the merits, but that it’s a bad strategy for advancing the Second Amendment through the courts.

    RKV:

    All Hawkins says is that an anonymous and unverified “man with a gun” call is not grounds for reasonable articulable suspicion for the purposes of a Terry Stop. The fact that open carry is legal here isn’t really the issue, so much as whether the sheriff, through administration of Pennsylvania’s licensing laws, violated her Second Amendment right. Whether we personally believe that to be the case isn’t really the problem. I happen to think licensing carry at all is a violation of the Second Amendment, but what we can successfully convince judges of. Heller left open the possibility of the state being able to prohibit concealed carry entirely, while at the same time saying you had a right to bear arms in anticipation of “confrontation”. Not any confrontation, but there’s a right to be found there to carry in some manner. This is treacherous territory, and it should be entered with the utmost care.

    The one thing Parker had going for it, is even when folks thought it was very risky, is that it was a great case. It was pretty obvious that it was a well thought out, and that the people taking it forward knew what they were doing. The concern was, despite all that, it was still going to lose. People eventually bought into the idea that the risk was worth taking, because, as Alan Gura argued, if we didn’t go ahead with that case, someone was going to go ahead with a worse one. The groundwork had already been laid.

    Heller laid the groundwork in this case, but I think this is an incorrect next step. I could be wrong on this one too, and I hope that I end up being, but court cases are very risky, and the ground being tread on here is more fraught with risk than just about any other area I could think of litigating under based on Heller.

  8. gattsuru says:

    the alleged defamation of character was caused by Hain’s decision to be seen open carrying in front of potential clients, not by the Sherrif’s actions.

    As noted, if it’s a 1983 suit, it’s about rights rather than defamation.

    Unlike Sebastian holds, though, the matter does not have to be based under Heller or the Second Amendment; the text of the relevant law is :

    Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law

    This specifically includes privileges or immunities secured solely by the law.

  9. Sebastian says:

    I should really wait until I see the actual suit before saying anything. The article says “Second Amendment” but it’s not like newspapers really take care to get the specifics correct in stories of this nature.

  10. RKV says:

    Sebastian, I’ve read Hawkins, and while you are correct describing the facts, the state constitution and relevant state precedents are very clear that this woman was well within the law, and the sheriff was not. Hell, you don’t even have a clear picture of what statutory authority she’s filing under, do you?
    “I have not seen the case,”

  11. Sebastian says:

    RKV:

    I know what the article says… and based on what it says, there’s not much it could be other than a Section 1983 suit. But I hold out the possibility that the article is confusing matters, and the case is actually pretty good. I will try to find the actual case, so we can discuss this based on more than speculation.

  12. RKV says:

    Between me and thee Sebastian, I hope some knowledgeable 2nd Amendment attorney will give her the benefit of experience. It appears to me that this should be dealt with at the state level and hopefully even a federal judge would rule that she hadn’t exhausted her remedies there.

  13. Oscar says:

    Folks,

    If a law-abiding “soccer mom” is not the “right plaintiff”, then who the h**l is? We often complain about plaintiffs in 2A suits because they’re convicts, or alleged abusers, or they carry some other piece of baggage. If a soccer mom is arbitrarily punished for engaging in a perfectly legal act, then what recourse do any of the rest of us have for restitution?

    Moreover, the abuse of power displayed in this case is as clear-cut as we’re going to see. If we sit back and wait for the “right case” to come along, we’ll still be waiting for it when we’re turning in our guns at to the local police barracks.

  14. Sebastian says:

    She’s more sympathetic than, say, a drug dealer, in that she was not a law breaker. But the circumstances that created this is not easily understandable or acceptable to the public, who will comprise the jury for the lawsuit. It’s even less acceptable to judges, who get to decide matters of law.

    In the case of the lawsuit to get her LTC back, which I agreed with, the judge ruled based on the facts of the case and the law, which was largely not disputable. In this instance, the judge will have a lot more room to decide a not too well established area of law. You don’t want to give the judge a reason to start looking for ways to rule against you, because he finds the circumstances of the case unpleasant.

    That’s one reason why Shelly Parker and Dick Heller were such good plaintiffs. They were both squeaky clean, sympathetic figures who just wanted to be able to keep a gun in their home for self-protection. That’s something people can relate to. Carrying a gun to a kids soccer game, not so much.

  15. Critic says:

    This doesn’t seem like a very good case to take to the top. We don’t want the judges to spend much of their deliberations thinking about all the places they would hate to see people carrying guns. This also isn’t a completely clean carry case, because she had the option of carrying concealed and instead carried openly, to the disturbance of the people at the game. Instead of the simpler question of whether a person has a right to carry concealed, it’s the trickier question of whether a person who can carry concealed has a right to disturb the public. While I personally think the disturbance was the fault of the people who got disturbed and not the carrier, since there was no good reason to get disturbed, a judge might not see it that way.

    If we get a bad precedent on concealed carry, thousands of people could die on the streets for want of the means to defend themselves. The lives of those people should be at the forefront of this woman’s decision making process.

  16. chris says:

    all it takes is for a federal judge to say that open carry isnt protected under the 2nd if the state offers CCW… and we loose open carry nation wide…

    i agree, this is a shaky suit

  17. Sebastian says:

    Someone beat you to it… but I wanted to read it and get some opinions before I commented.

  18. Melancton Smith says:

    Here is the deal, the sheriff has violated her 2nd Amendment right to carry a firearm in case of confrontation. Because she carried openly, he revoked her license to carry concealed, leaving her no way to carry.

  19. RKV says:

    If a federal judge says open carry isn’t protected under the 2nd Amendment, then the word “bear” in the Constitution will have ceased to exist. That said, this should have gone to state court first.

  20. Tom says:

    “That’s one reason why Shelly Parker and Dick Heller were such good plaintiffs. They were both squeaky clean, sympathetic figures who just wanted to be able to keep a gun in their home for self-protection.”

    I’ll fix that for you.

    That’s one reason why Shelly Parker and Dick Heller were such good plaintiffs. They were both squeaky clean, sympathetic figures who just wanted to be able REGISTER a gun TO KEEP in their home for self-protection.

    There ya go.

    Back to the specific case at hand. She has the RIGHT to open carry, and the PRIVILEGE of concealed carry.

    http://paopencarry.org/uniform-firearms-act#subchaptera

    PA constitution, article 1, section 1,

    All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

    POSSESSING and PROTECTING, best way to possess and protect is when you always have it under your direct control, like on your person I guess.

    section 21
    The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.

    not even QUESTIONED. Plenty of discussion on just what “bear arms” in Heller, wasn’t there? Wasn’t that the highest court in the land? I think unless they bring in a Brady judge and an all anti-rights jury that is pretty much settled.

    IV. 13 “granted the right” BZZZT! Pre-existing right guaranteed by the constitution (state and federal) not something government can grant, only protect.

    VI. Prayer for relief PRAYER? is that a PA thing, is that how it’s always worded? Who the hell are they praying to?

    It could have been worked on a bit, and the crap about loss of consortium and indignity I find a bit much.

    If everyone HERE thinks it should have been done in state court (and it probably should have) you think the court’s going to stick it’s neck out and not toss it?

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