Could We Sue Over Operation Choke Point?


We’ve been noticing more problems with Operation Choke Point, the Obama Administration’s program to bully banks into starving the gun industry of financial services. As Prof. Glenn Reynolds notes, “Sounds like a conspiracy to deny civil rights.” That would be under 18 U.S.C. 241. The Second Amendment necessarily has to protect a right, though one subject to regulation according to the Heller decision, to engage in commerce with firearms. If it’s not legal to engage in the business of manufacturing or selling firearms, then in effect the Second Amendment would be meaningless.

Now, I don’t expect Eric Holder to prosecute himself, but that’s why we have 42 U.S.C. Section 1983, which allows a person subject to deprivation of rights to file suit. It looks like in the time since Prof. Reynolds original post, the financial institution has retracted its statement that Operation Chokepoint was to blame. But if we can get some solid proof, why not file a 1983 action against the DOJ, going all the way up to President Obama? The discovery alone would be epic.

11 thoughts on “Could We Sue Over Operation Choke Point?”

  1. I think standing would be the main issue. Mainly because the Gov is a third party and not the one directly harming you.

    1. I would link it to the government through the old Duress of goods. That would show Conspiracy by the Federal Government to force financial institutions to do what they want or face Punishment. In turn the Financial institutions would be passing down the Duress to Gun Businesses.

  2. They absolutely would have standing per the law: “If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States”

    The two persons being the bank and the DOJ or other federal agency.

    The problem I see isn’t standing, it is proof as Sebastian noted. This will be especially hard in light of the other things the banks and payment processors exclude, such as pornography, drugs, etc… They word their internal policies in such a way that it will make it hard to prove conspiracy.

  3. “It looks like in the time since Prof. Reynolds original post, the financial institution has retracted its statement that Operation Chokepoint was to blame.”

    It seems to me that part of getting proof is timing. Someone would need to have the lawsuit written up and ready to be filed at a moment’s notice, so that both a statement that Operation Chokepoint is to blame and a retraction of that statement become discoverable evidence not only of the conspiracy, but also of perjury on the part of the financial institution.

  4. That’s a criminal law statute, so pretty much only a prosecutor can do this. Lawsuits are civil, which is a completely different animal.

    What you would have to do is establish that their behavior violates the law AND that this violation constitutes a tort. I have no idea if this is possible or not. Your chances would likely be improved by documenting any and all dollars lost due to this action–lost transactions, compliance costs, the whole nine yards. No one will go to jail, but you might get some of your fellow citizens’ hard-earned money as compensation.

    Disclaimer: IANAL. If you take legal advice from some guy on the internet you deserve what you get.

    1. Most likely (if it got that far) the .gov would try to argue “volenti non fit injuria”–i.e. that by going into the gun business the company knew or should have known that new government regulations are an inherent risk associated with any business activity. Therefore by going into business anyway they have consented to assume that risk and there is no tort.

      Again: IANAL

  5. The answer is simple, file a RICO lawsuit against the agency and the bank. Federal law allows an individual to file a RICO suit, it allows for treble damages, it allows both defendants to be sued even for a pattern of indirect actions, and if you’re really good you may get the agencies assets frozen so they can’t continue the practice (until another judge higher up the food chain releases them). The scope of RICO prosecutions has been drastically widened over the years, so I’m sure you could stretch it just a bit more, and even Blakley, a senate advisor who helped draft the legislation, said, “We don’t want one set of rules for people whose collars are blue or whose names end in vowels, and another set for those whose collars are white and have Ivy League diplomas.” That sounds like Holder to me!

    1. PS – to be charged you do need to break at least two of 27 federal laws, including fraud, extortion, bribery, and obstruction of justice…. I think we can argue the case!

  6. Can this also be used by citizens of DC , against Prosecutor Irvin Nathan , for failure to represent the people by not charging David Gregory ( while charging others ) ? It seem that intentional and selective enforcement makes the people of DC victims.

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