First, as the NRA’s suit against the San Francisco City Housing Authority, press reports indicate that the NRA will likely dismiss the City & County of San Francisco from the lawsuit challenging a ban on the possession of firearms in San Francisco’s Housing Authority developments. The federal lawsuit sought to overturn both a 2007 local ordinance banning gun possession on county land and a provision in the San Francisco Housing Authority’s lease agreement that prevented residents from keeping a gun on Housing Authority land. Mayor Newsom appoints the Housing Authority. The NRA failed to tie the city ordinance to the lease provision of the Housing Authority, which apparently is a federal agency.
San Francisco City Attorney Dennis Herrera had called the lawsuit “little more than a publicity stunt that improperly names SF as a defendant, and makes false representations to the court,” after the lawsuit was filed. If such is the case, the SF under the loser pays provisions of 42 USC 1988 should file its own request for attorney fees and costs.
We're being told their much-publicized lawsuit fired on the wrong target?
Anybody know anything about this? Because it appears sanctions are being sought, and I haven't seen anything giving NRA's side, either on their site or from any of the many gun bloggers who promote the Association (although in fairness I have not had time to do more than a cursory search).
Although it's long and written more toward policy/legal types than a general audience, the entire article is worth reading for insights and analysis. We've met Irwin Nowick before. His ability to navigate the legislative process and focus on details, connections and implications is impressive, and we ignore his opinions at our peril, because the leading anti-gun legislators in California listen to him with rapt attention.
UPDATE: Here's the complaint. Hopefully those with legal expertise can educate us on what this all really means.
And here's an "About" link for SFHA: "Housing Authorities are unique entities established by a combination of federal, state and local actions. While the Mayor appoints the seven members of the SFHA's Board of Commissioners, the SFHA is an independent agency and a state chartered corporation."
Beats me what this all means--that's why I'm asking for informed opinions.
UPDATE: Dave Hardy weighs in in "Comments," below.
UPDATE: From Chuck Michel
I assure you there is no screw up here...
8 comments:
Oh, for...
You can expend millions of dollars and thousands of hours assembling your case and have it dismissed because of a tiny procedural error which isn't really an error but more of a failure to do what's CUSTOMARY in these things...
Another Intolerable Act.
The NRA says obey existing gun laws. At least they're taking their own advice and fighting those laws through legal channels. Are the People still rendered helpless or homeless, their choice, in the meantime?!?
Erm....no. As I read the reports (and this is going on secondary information, not the actual pleadings) what these articles are saying is that the NRA named the wrong party in the suit. The City of SF is not the owner/manager of the public housing. QED, suing the City is wrong.
It's not a "tiny procedural error," since suing the wrong person is generally considered Bad Form in the legal industry.
would not the SF ban on guns be covered under this suit? Or does the suit not address that particular issue?
It sounds to me like the NRA only named SF and SF county in regard to the housing authority prohibition.
I'm not sure how it wouldn't apply to the parks prohibition that was mentioned - that's why we in the legal industry often say that we need to see actual documents to make good accurate legal assessments.
I just posted a link to the complaint as an update. They also included the Housing Authority, so it looks like the beef here is including the city and county--I also see Newsom's name, and don't know if that's problematic.
Opinions?
Looks like a screw up to me. Don Kates is no amateur at this stuff though, so perhaps this isn't as bad as it's being made to look. I hope it's not as bad as it looks, because it looks pretty bad.
I'd forward your link along to Dave Hardy and see if he has anything to say about it.
With government agencies, it's often unclear just who to sue. At the federal level, anyway, a few agencies have "sue and be sued" legislation, which means you can name the agency, it's a separate legal person. Most don't, and with them you sue the US and not the agency. The agency is not a legal person, any more than, oh, the research division of General Motors is a person and can be sued separate from GM.
Then you have situations like this, where a local agency runs the project, and may or may not have separate legal status, apart from the city and county.
Looks as if Don Kates just hedged his bet, suing both the governmental units and the authority, and now the governmental units are arguing the authority alone is a separate legal person, so it, and not them, should have been sued.
If so, they'll get dismissed. The sanctions claim is likely a publicity-grabber or playing head games with the other side, rather than a real risk.
It can get complex -- I know an attorney who sued a local public health clinic, and found that legally they were by statute part of a federal agency, and could only be sued under the Federal Tort Claims Act (where the defendant is the US, not the agency or the clinic). Fortunately, when Congress enacted the legislation saying that such clinics were covered by FTCA, someone realized that people would not know this, and put in a provision saying that if a plaintiff didn't know this, and it was brought to his attention, he had X days to submit an FTCA demand (which is required before filing suit, and on which the time limits would likely have run already).
Thanks David, the maze of government is a small wonder. It would be nice to be able to sue the folks who run a government agency and they have to bring in the proper government ghost so victims of government abuse don't have to play ghost hunter.
If its a nightmare, than its not by design to serve the very people who pay for it.
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