Brady Campaign Sues Over Kansas Gun Law

The Associated Press reports:

The Brady Campaign filed a federal lawsuit last week against a 2013 state law declaring that the federal government has no authority to regulate guns, ammunition and accessories manufactured, sold and kept only in Kansas. Brady officials argue that it is a blatantly unconstitutional attempt by a state to nullify federal laws. 

. . . 

The law makes it a felony for any U.S. government employee to attempt to enforce federal regulations for Kansas-only firearms, ammunition or accessories and allows lawsuits by the state attorney general or county prosecutors to block federal enforcement attempts. The statute also says no state or local official shall attempt to enforce any federal gun regulation for Kansas-only items.

The full complaint is available here. The Brady Campaign argues that the federal government has the authority to regulate firearms that are made and sold within Kansas. From the complaint:

58. In the exercise of its Commerce Clause authority, Congress has enacted “comprehensive legislation to regulate the interstate market in a fungible commodity.” See Raich, 545 U.S. at 22. This firearms regulation properly reaches the intrastate manufacture, ownership, and possession of firearms and ammunition. Kansas has no power to “carve out” intrastate “Kansas” firearms from the comprehensive federal regulation.

59. The United States Court of Appeals for the Tenth Circuit explicitly upheld federal regulation of entirely intrastate possession of firearms. United States v. Haney, 264 F.3d 1161 (10th Cir. 2001). The court held that the firearm regulation was an “essential part of the federal scheme to regulate interstate commerce in dangerous weapons.” Id. at 1168. The court found “no question that the market in firearms generally is heavily interstate — indeed, international — in character.” Id. at 1169 (citing 18 U.S.C. § 922(q)(1)(D)). The court also found that “[b]ecause of the ease of moving weapons across state and national lines, Congress has rationally concluded that it cannot rely on the states to control the market in these devices by themselves.” Id.  Another federal appellate court squarely rejected a Montana law that attempted to do exactly what Kansas attempts here—to carve out an intrastate firearms market that Congress cannot regulate. See Montana Shooting Sports Ass’n. v. Holder, 727 F.3d 975, 982-983 (9th Cir. 2013) . . . .

The Brady Campaign seems to be on pretty solid legal ground in challenging the Kansas law. If the federal government has the authority to pass a law, and if a state law conflicts with the federal law, then under the Constitution's Supremacy Clause the federal law will trump the state's.

From a legal perspective, this case is fairly simple, since the Kansas law is pretty clearly unconstitutional. But that hasn't stopped supporters of the law from arguing that the Brady Campaign is playing politics with this lawsuit. From the AP:

GOP Gov. Sam Brownback's spokeswoman Eileen Hawley said, “It’s unfortunate that the Brady center has chosen to file such a politicized lawsuit.”

However...

So far, the law has been mostly a symbolic protest against the federal government. There have been no known attempts to arrest federal employees or lawsuits over federal enforcement actions. . . . .

The law also is a vehicle for Republican politicians in Kansas to showcase the depth of their opposition to Democratic President Barack Obama’s administration ahead of this year’s elections. Brownback is a strong supporter of the law, and his re-election campaign sent out a fundraising email the day after the lawsuit was filed, seeking financial help for his “stand against the attacks from the Obama Administration and their gun-grabbing friends.”

Meanwhile, the Brady Campaign argues that Kansas's opposition to the federal government is akin to the sentiments that motivated opponents of Brown v. Board.

While the legal merits of the case are relatively simple, it will be interesting to watch the law's supporters and the Brady Campaign continue to duke it out on the public relations level.

"Being Injured by Sluggerrr’s Hotdog Toss is Not a Risk Inherent in Watching Royals Baseball"

So holds the Missouri Supreme Court. Back in 2009, John Coomer was injured by a flying hot dog thrown by the Kansas City Royals mascot, Sluggerrr. Yesterday, the Missouri Supreme Court overturned the trial court's dismissal of Coomer's lawsuit and held that Coomer can sue the team for negligence. The full opinion of the court is available here, and the Kansas City Star's report on the ruling is available here (H/T: Howard Bashman's How Appealing)

I blogged about this case last November, where I noted that this case presented the question of whether the Coomer's injury resulted from a risk inherent in watching a baseball game. Under the "baseball rule," courts hold that fans who are injured by stray baseballs or bat fragments have assumed the risk of these injuries by attending the game, since foul balls and flying bats are an unavoidable risk of the game. Because fans assume the risk, they cannot sue the team for negligence.

Here are some excerpts of the Court's analysis on why the baseball rule does not Coomer's lawsuit. It's a long quote, but I think its approachable language and no-nonsense treatment of the baseball rule makes it worth posting:

The Royals admit that, “[s]trictly speaking, this is not a baseball rule case” because Coomer does not claim he was injured by a foul ball or loose bat. But, because it claims the Hotdog Launch is a “common sense” activity, the Royals contend that the same implied primary assumption of the risk rationale should apply and bar all recovery by Coomer. According to the Royals, the risk to a spectator of being injured by Sluggerrr’s hotdog toss shares the same essential characteristics as the other risks that this Court (and many others) determined long ago were inherent in watching a baseball gamein person, i.e., risks that a spectator will be injured by a flying ball or bat. The Court disagrees.


The rationale for barring recovery for injuries from risks that are inherent in watching a particular sport under implied primary assumption of the risk is that the defendant team owner cannot remove such risks without materially altering either the sport that the spectators come to see or the spectator’s enjoyment of it. No such argument applies to Sluggerrr’s hotdog toss. Millions of fans have watched the Royals (and its forebears in professional baseball) play the National Pastime for the better part of a century before Sluggerrr began tossing hotdogs, and millions more people watch professional baseball every year in stadiums all across this country without the benefit of such antics.

. . .


The Hotdog Launch is not an inherent part of the game; it is what the Royals do to entertain baseball fans when there is no game for them to watch. Sluggerrr may make breaks in the game more fun, but Coomer and his 12,000 rain-soaked fellow spectators were not there to watch Sluggerrr toss hotdogs; they were there to watch the Royals play baseball.

. . .

Accordingly, the Court holds as a matter of law that the risk of injury from Sluggerrr’s hotdog toss is not one of the risks inherent in watching the Royals play baseball that Coomer assumed merely by attending a game at Kauffman Stadium. This risk can be increased, decreased or eliminated altogether with no impact on the game or the spectators’ enjoyment of it. As a result, Sluggerrr (and, therefore, the Royals) owe the fans a duty to use reasonable care in conducting the Hotdog Launch and can be held liable for damages caused by a breach of that duty.

As I predicted in my earlier post on the case, the Court relied on Lowe v. California League of Professional Baseball to conclude that the risk Coomer faced was not a risk inherent to the sport of baseball. The Court acknowledged that flying balls and bat fragments are unavoidable risks fans face at a baseball game. And hot dogs have been associated with the game for time immemorial. But combining these two essential features of baseball creates a risk that fans do not assume.

First Amendment Students Take Note: Kansas Professor Placed on Leave for Tweet

Over at Constitutional Law Prof Blog, Ruthann Robson posts about a University of Kansas journalism professor, David Guth, who was recently placed on administrative leave following a tweet about the Navy Yard shooting in Washington DC.  The Kansas City Star reports on the story here.

The tweet read:

"The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.”

Law students who are taking First Amendment law should take note of this story because, as Robson notes, this scenario is an excellent candidate for an issue-spotting question. This scenario raises the issues of speech by public employees, true threats, advocacy of illegal action, defamation, and probably others.

The one point I would like to Robson's analysis is that I don't think that there is as much of a reason to analyze this situation under a true threats approach as there is to ask whether it constitutes advocacy of illegal action. Guth does not seem to indicate that he is about to attack NRA members so much as he voices a call that the members suffer.

Because of the general nature of Guth's tweet, and because the tweet appears to simply wish that NRA members suffer from violence rather than urge others to do violence upon NRA members, the tweet does not seem to rise to the level of unprotected speech under Brandenburg.

As a final note on this issue, I checked out Guth's personal blog. As Robson notes, the September 16 entry discusses the Navy Yard shooting. I was distracted, however, by Guth's blog description, which I found to be eloquent, if not poetic:

There are a lot of people online with nothing much to say. I am not one of those folks. I hope that you find my comments insightful, provocative and occasionally amusing. I am a college professor, Jayhawk Journalist and writer. I am not software engineer. I am a content guy. Whatever this blog may lack in flash will be more than made up for in substance.

Also, every post that Guth writes ends with "That's it for now.  Fear the Turtle."  I don't know why.