We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.

Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]

A thousand lawyers at the bottom of the ocean?

There are times when I suffer an acute sense of embarrassment when I tell people that I am a lawyer. The discomfort is usually at its worst when stories like this emerge:

New York’s attorney general Eliot Spitzer has demanded changes to the way Wal-Mart sells toy guns in its New York stores.

Mr Spitzer says the guns don’t carry a number of distinctive markings required by state law, meaning they could be confused with real firearms putting people at risk of being shot by police officers.

When I first read this, my immediate response was to wonder who exactly the Plaintiff is until I realised that, as Attorney General, his client is the the City or State of New York (I believe that is right but I am happy to stand open to correction).

Okay, fair enough. Mr.Spitzer would probably respond by arguing that he is only doing his job. However, leaving aside the rather comical image of Mr.Spitzer traipsing around his local Wal-Mart examining the toys for regulatory compliance, would the good burghers of New York not be entirely reasonable in asking whether their Attorney General has anything better to do?

I suppose of most significance is the threat of legal action against this retailer based not on what they have done or even allowed to happen or failed to prevent happening but on what Mr.Spitzer claims could happen. This is an unfortunate trend. State enforcement procedures are a big enough nightmare for most merchants without introducing a precautionary element driven by febrile imaginations.

19 comments to A thousand lawyers at the bottom of the ocean?

  • Della

    Oh please,

    They’re not even threatening them with jail

    “British dentists have been warned that they face criminal prosecution under EU law if they use tooth-whitening treatments ”

    “Dentists have now been warned that they face six months in jail or a £5,000 fine if they offer the treatment, ”

    “George Rodgers, a dentist in Wigan who has received a warning letter from trading standards officers about the treatment, said: ‘It is immoral of this government to make illegal by petty bureaucracy a treatment which is safe and far less destructive than its alternatives, especially as this tooth whitening is available in America and across Europe.'”

  • Nick

    He would be the Attorney General of New York State, sadly. I also prefer not to refer to myself as an attorney or lawyer at times like these!

  • Ted Schuerzinger

    What’s worse is that he won election in 1998 largely by portraying his opponent (Dennis Vacco) as “far right” because his opponent favored allowing abortion protesters to protest where they wish. Some of you may recall Vacco as the AG who went after Procter and Gamble for stopping publication of coupons in the Buffalo area as a test case. (The test would have failed from a business standpoint — coupon clippers hated the idea and P&G would have had to reintroduce coupons anyhow even if Big Government hadn’t intervened.)

    State Attorneys-General here in the States don’t serve any real purpose, other than to punish businesses. Any infractions of the state criminal codes (murder, robbery, etc.) are handled by the county District Attorneys’ offices.

  • On the other hand, making toy guns clearly distinguisable from the real thing is probably a very good thing in terms of preventing accidental shootings by the police – and surely Samizdata would view that as more constructive than banning the guns themselves…

  • Jenn

    “meaning they could be confused with real firearms putting people at risk of being shot by police officers.”

    Hmm, does this mean the NYAG thinks: 1) that a lot of adults actually carry plastic guns around in their purses, pockets, and waistbands, 2) that police routinely mistakenly shoot children who are playing with toy guns, or 3) that citizens exercising their 2nd amendment right to own firearms are in danger of being shot by the police? (I’m not a New Yorker, so I’m not exactly sure what the carry laws are there.)

    Let’s see, this follows a proposed ban by the NYC to ban all toy guns and an attempt by the Brooklyn DA to punish Ron Dixon for defending his family with a firearm. Wow, the NY govt. really has its priorities in order.

    I suspect this is really a way for the NY Attorney General to get his foot in the door with the whole Wal-Mart/firearms issue–especially considering California recently suspended Wal-Mart’s gun sales in its state.

  • Jim

    As the news item indicates, this is about markings “required by state law” — so this isn’t some crazy thing that the AG has thought up on his own, it apparently is based on a law passed by the state legislature and signed by the governor and hence is the law until and unless repealed by subsequent legislation or thrown out as unconstitutionall by judicial process.

    Although I do not know the details of this law but I am aware of the reasoning behind these kinds of laws which are attemptin to ban toy guns that can too easily be mistaken for real ones: (1) they can be used by criminals in robberies, (2) a kid with a toy gun that may be mistaken for a real gun. That second reason is why many copys support this kind of law — picture an early evening scene, police are called for some reason, officer sees a big kid, maybe 12 or 13 maybe 16 or 17 (my youngest son at 13 or 14 could easily pass for 18 or 19 unless you looked carefully) and this kid is carrying a toy gun — or is it a real gun — it looks like a real gun. No cop wants to be the one who blows away a kid who is only playing with a toy gun, but neither does he want to be killed if it turns out to be a real gun.

    You can argue about the value of this law, etc. — and I am not a fan of Mr. Spitzer — but in this case it would seem that he is merely reminding a retailer of the requirements of the law. (Yes, yes, of course he is also a publicity-seeking politician, so what else is new?)

  • Jim

    Jenn, I think I covered your first two point in my prior post (didn’t see your post until after I entered mine, we must have been responding at around the same time) — as for your point (3) New York State has one of the most restrictive gun laws in the country (and in NYC it is even more restrictive) so it would be very rare to find a citizen legally carrying a gun (exceptions would mostly be for security-related jobs) — I’m talking about carry permits — with luck and connections and filling out appropriate paperwork and having good references, you could have a handgun for home protection, for sport target shooting, for hunting, but not to walk around town with it.

    Naturally New York has one of the lowest murder rates in the country and the use of guns by criminals is almost unknown. What? You mean that isn’t true? Gee, I thought that those tough gun laws would protect us? They’ve had enough time to work NY has been the poster state for restrictive gun laws for decades. Ah, must be those communters from Connecticut and New Jersey.

  • “State Attorneys-General here in the States don’t serve any real purpose, other than to punish businesses.”

    Some of the really hard-working ones find time to persecute ordinary citizens as well. California Attorney-Generals (past and present) like to creatively reinterpret the state’s already horrendous gun laws in ways that make them even worse.

  • dave fordwych

    For some time now I have been arguing – without much support- that lawyers are destroying British society.Practically all of the problems which drive many people mad can be traced back to lawyers.

    People tell me it’s not the lawyers it’s the law.
    Who drafts the law? Who advises governments on law before it is adopted?
    Because every government of the past 30 years has been top heavy with lawyers, bad law -drawn up by unaccountable lawyers and unable to be successfully challenged – has spread like a cancer through the British body politic.

    What am I talking about?

    For example;Taliban refugees who cannot be thrown out or refused entry.[soon to be followed by Ba’athists]

    Local authorities banning parents photographing their kids -because their lawyers have told them they could be sued if one of the photographers turned out to be a paedophile.

    Crime out of control yet the top judge in the country recommends that burglary is not serious enough to jail people for.

    Business owners and professionals like doctors architects and engineers terrified of being sued or taken to employment or other tribunals

    Britons unable to defend themselves in their own homes because they might infringe intruders human rights.

    A career criminal can sue his local authority[i.e. us] for not sending him to a special school at age 9 thereby “causing “him to take up a life of crime.

    Known terrorists and sympathisers cannot be extradited . it would breach their human rights.
    Yet the writer Robin Page received scant sympathy for his human rights when he was arrested for saying in public that he would like the same rights for foxhunters as are enjoyed by other minorities.

    And in London lately the most heinous crime would seem to be saying something which may hurt someone else’s feelings-so called hate crime.

    I could go on ad infinitum.There are many other cases particularly where the defence of property is concerned where the law seems to be more than ever the opponent of the ordinary British citizen.

    My point is simply that as the list of legal lunacies inexorably grows my belief has also grown that the lawyers[including the unaccountable judges]and their interpretation of the law are becoming issues which must be addressed before they destroy the fabric of our society for ever.

    I used to believe the old saw that a strong judiciary was necessary to guard against an overmighty executive.But we can vote the executive out.We can’t do the same with the judges.That is a large part of the problem.

  • jk

    Sadly. AG Spitzer does have other things to do. He led a crusade against the Investment Banking Industry, could not get enough evidence to convict, so he started to leak embarrassing emails that he had subpoenaed to the media. Pretty soon they had to settle. Today’s Wall Street Journal Editorial catches the Governor-wanna-be helping Trial Lawyers collect astronomical fees in the tobacco coercion:

    “And the Attorney General’s office? Surely its stand couldn’t have anything to do with the political ambitions of a certain judicial officer who understands that, next to the teachers unions, the New York State Trial Lawyers Association was the state’s top-spending PAC last year. For the trial lawyers have proved themselves good members of the political club. The Albany Times Union reports that the firms in question contributed $250,000 to New York politicians, Republican and Democrat alike, before the settlement and another $200,000 after.”

    I rest more easily when he plays with toy guns…

  • John J. Coupal

    Mr. Spitzer’s antics remind me of something related to the title of this post.

    Ques.: What is the one problem with 1000 lawyers buried up to their necks in sand?

    Ans.: An insufficient amount of sand.

    P.S. I used to live in New York state, and fortunately no longer do. See above reason.

  • ellie

    As I recall, NYC police officers, not so long ago, mistook a wallet for a gun.

  • David, you silly boy. AG Spitzer is doing this because 10,000 children were shot by the NYPD last year when the police mistook toy guns for real ones.

    Or maybe it was 100,000… it was in the New York Times somewhere.

  • Outlaw toy guns, and only criminals will have toy guns!

    Actually, has anyone thought of the implications of this law? Let’s see: orange stripe means toy, toy means don’t shoot the guy pointing this gun at you.

    How long do you think it will be before a criminal gets the idea of painting an orange stripe down the side of his barrel? While the cops are hesitating, thinking they’re facing a toy gun, the guy with the orange gun is taking his time to aim.

    I know that if someone’s pointing a gun at me, I’m not going to stop to check what color the thing is.

    Maybe a better law would be that cops should shoot anyone who points a gun at them, and that in order to avoid being shot for brandishing a toy gun, people should refrain from pointing toy guns at cops. It’s not hard to distinguish between someone a game of cowboys-and-indians and someone sticking up a liquor store, no matter what he’s got in his hand.

    Good arguments can be made against such a policy, but somehow I don’t think that restrictions on the right to point toy guns at armed police is the thin end of the authoritarian wedge.

  • Douglas

    It happens all the time, you nitwit:

    Cops kill robbery suspect they say pointed toy gun

    By Terry Horne
    March 15, 2003
    Police say officers did not know the gun a robbery suspect pointed at them was a toy when they fatally shot him Friday.

    Nathan Gillard, 27, Indianapolis, who was shot at 2:45 a.m., died in surgery about 45 minutes later in Wishard Memorial Hospital.

    Friday’s incident was the 18th police shooting by Indianapolis Police Department officers in the past two years. Five of the shootings have resulted in death.

    Lt. Paul Ciesielski said the shooting occurred within minutes of a robbery of an Eastside convenience store that was under surveillance by an East District detective.

    Detective Richard “R.J.” Kenney had parked his unmarked police car near the Village Pantry at 10th Street and Grant Avenue, Ciesielski said. Kenney saw a man park behind the store, go inside for a few minutes, then run out and get into a car.

    Several Village Pantry stores have been robbed recently, and police believed the robberies were the work of one man.

    When Kenney approached in his car, Gillard sped his car in reverse down an alley and around the block before it struck a parked sport utility vehicle in the 800 block of Chester Avenue.

    Kenney summoned help and began pursuit. East District officers Lawrence Wheeler and Bruce Smith arrived, and when Gillard got out of the car, he pointed what appeared to be a handgun at police, Sgt. Stephen Staletovich said.

    Ciesielski said all three officers fired their guns at Gillard, with at least one bullet striking him.
    The weapon was a black rubber replica of a semiautomatic, Ciesielski said.

    Staletovich said the toy gun was found at Gillard’s feet. Money was recovered from the floor of his car.

    Gillard had been convicted at least five times since 1995 on felony charges, including theft, battery, escape and cocaine possession. He had been arrested at least 24 times since 1992. In his most recent bail interview, he listed his address as the 2500 block of Brandywine Court.

    Ciesielski said Kenney was one of only three officers to receive IPD’s medal of honor.

    The medal was awarded for the first time in 1999. Kenney received it for aiding, under threat of gunfire, Sgt. Jack Ohrberg, who was fatally shot while trying to serve an arrest warrant in 1980. Kenney joined the department in 1968.
    In keeping with departmental procedures, the shooting will be investigated by homicide and internal affairs investigators.

    Ciesielski said the internal affairs results would be turned over to the Firearms Review Board and would be presented to a grand jury for review, as well.

    All three officers, he said, would be on administrative duty during the initial investigation.

    Call Star reporter Terry Horne at 1-317-444-6082.

  • Liberty Belle

    Re Douglas’s post: Thank you Nathan Gillard for clarifying the gene pool just that little bit.

  • Biased Observer

    Re: Mr Carr

    Anyone pointing a gun (replica or not) at a police officer should expect to get shot. This opinion is not due to a rigid adherence in some law-and-order agenda, but simply because it is an incredibly stupid thing to do. Stupidity of this magnitude has its own Darwinian consequences, which is often fatal and reasonably so.

    Occasionally there are situations (posing a reasonable threat to public safety) where a person (whose body type is misinterpreted as a threat) is holding a replica gun (which is misinterpreted as a threat). This unfortunate combination of factors sometimes leads to a preventable shooting. Despite your naive (or willfully blind) belief that this combination of events has never occurred, obviously Mr Spitzer’s employer, the State of New York, felt there was sufficient precedence and incentive to pass a preventative law. Since Mr Spitzer is in fact fulfilling the requirements of his office, am I to take it from Mr Carr’s cynical comments he would prefer Mr Spitzer NOT do the job for which he was hired?

    Perhaps Mr Carr objects to the law itself? Given the libertarian philosophy of this web site, I assume he considers the potential reduction in mistaken shootings does not justify the intolerable restriction of the citizen’s “right” to run around in public banishing realistic replicas. As a citizen, I however DO have concerns about being forced to guess whether my live is actually at risk, or its just somebody “playing” with a toy. Perhaps Mr Carr objects to the curtailment of artistic freedom of design involving the “realism” of replica guns. As an adult, I do not play with replica guns, so the infringement on the right to realistic toys doesn’t bother me as it does him. As for children, I don’t think a realistic gun is, or ever was, a catastrophic obstacle to playtime. As precedence I cite the prevalent use of “sticks” as a common substitute.

    The other aspect is financial liability of the state, and by extension all taxpayers including Mr Carr. Despite the fact mistaken shootings involving replica guns are entirely predictable, nevertheless when it happens lawyers (such as Mr Carr) crawl out of the woodwork to sue the police department and anyone related to them by birth or marriage. Again, this particular law and its enforcement (that’s Mr Spitzer job remember) is intended to reduce the financial risk of taxpayers having to pay to settle claims of “wrongful death etc.” involving replicas. As a libertarian taxpayer yearning to be of the yoke of needless taxes, one would assume Mr Carr would naturally support measures to reduce this portion of his tax load. However, I doubt we will see Mr Carr campaigning to institute measures that eliminates any civil recourse for mistaken shootings when replica guns are involved. After all, that’s how lawyers make their living. In the meantime, Mr Carr condescendingly mocks all other preventative measures, as long as they don’t threaten his own wallet.

  • cydonia

    Dave Fordwych:

    It’s best not to mix up judge-made common law and politician-made statute.

    The former actually has a pretty good track record on this side of the pond. It’s true that tort law in the U.S. has gone off the rails but the problems in the U.S. stem not from the law itself but from the awarding of punitive damages and the use of juries in civil cases (plus the fact that losers don’t pay costs).

    Statutes are a different story. Many (most) statutes are passed by politicians in response to pressure from various self-interest groups. To call them “law” is an insult to real (common) law. Almost all of your examples are derived from interest-group derived statutes. The blame for this cannot be laid at the door of lawyers. It is the inevitable consequence of a political system in which the State hands out favours to those who shout the loudest.


  • Biased Observer

    To continue flogging the horse…

    “Police forces are keen to prevent incidents like the fatal shooting in 2001 of Derek Bennett, who was carrying a cigarette lighter shaped like a handgun”.
    Times On line 17 April.

    It appears this is a problem on your side of the pond as well.