Election 2020

Federal Judge Imposes Sanctions on Lawyers Who Filed Frivolous Election Suit

The attorneys failed to make reasonable efforts to verify their allegations. Will the Kraken lawyers be next?

|

A federal magistrate judge in Colorado granted defendants' motion for sanctions against lawyers who filed a frivolous class-action lawsuit seeking to challenge the 2020 election results. The court's 68-page opinion in O'Rourke v. Dominion voting Systems does not hold back,

The court granted the motion for sanctions based upon the following conclusions:

(1) That this lawsuit was filed in bad faith;

(2) That Plaintiffs' counsel's legal contention that the Plaintiffs had Article III standing to bring this suit was not warranted by existing law or a nonfrivolous argument for extending, modifying, or reversing existing law or establishing new law. To the contrary, I find that Plaintiffs' counsel's arguments on the issue of standing frivolous;

(3) That Plaintiffs' counsel's act of filing a lawsuit in Colorado against state officials from Georgia, Michigan, Pennsylvania, and Wisconsin was not warranted by existing law or a nonfrivolous argument for extending, modifying, or reversing existing law or establishing new law. To the contrary, it was obvious that there was no personal jurisdiction in Colorado over these defendants and suit against these state officials should never have been filed in Colorado;

(4) That, in light of the unusual and highly volatile circumstances of this case and the surrounding political environment, Plaintiffs' counsel did not conduct a reasonable inquiry into whether the factual contentions had evidentiary support. Without doing any independent confirmation via, for example, the hiring of experts, or speaking to lawyers who had filed other failed lawsuits, they improperly accepted allegations from those suits and from media reports at face value and cut and pasted them into their Complaint and Amended Complaint;

(5) That because of its inherent legal flaws and the inadequate inquiry into the factual allegations by Plaintiffs' counsel, this lawsuit should never have been filed in the first place or, using the Tenth Circuit's test, no "reasonable attorney admitted to practice before the district court would file such a document." Predator Int'l, Inc., 793 F.3d at 1182 (quoting Adamson, 855 F.2d at 673);

(6) That Plaintiffs' counsel's filing of a motion for leave to amend, without addressing the obvious fatal problems with standing and lack of personal jurisdiction, while attempting to add RICO claims based on a TIME magazine article that provided no support for such claims, was a violation of 28 U.S.C. § 1927 in that the attempt to amend unreasonably and vexatiously multiplied the proceedings;

(7) That Plaintiffs' counsel improperly included in a federal complaint highly disputed and inflammatory statements by the former President stating categorically that ""DOMINION DELETED 2.7 MILLION TRUMP VOTES NATIONWIDE" without doing anything to independently verify the truth of that statement;

(8) That sanctions are merited under Rule 11 (except with respect to Pennsylvania) and 28 U.S.C. § 1927.

(9) That sanctions are further merited under this Court's inherent authority because of the bad faith nature of the filing of the suit that Plaintiffs' counsel knew or should have known was doomed to failure from the very beginning; and

(10) That sanctions are required to deter the filing of frivolous, politically motivated lawsuits such as this in the future and to compensate the Defendants for the unnecessary expenditure of private and public money in defense of a frivolous lawsuit filed without reasonable legal basis and without a reasonable inquiry into the facts.

As the U.S. Supreme Court has noted, "the filing of complaints, papers, or other motions without taking the necessary care in their preparation" constitutes an "abuse of the judicial system, subject to separate sanction." Such abuses were certainly committed in many of the suits filed to challenge the 2020 election results, and they are worthy of sanction. Parties rarely seek sanctions, and courts rarely grant them (which is too bad), but the relevant standards appear to be met here. And now that one judge has ordered sanctions, I suspect it is likely others will follow suit. Perhaps the Kraken attorneys are next.

NEXT: Is Lawyer Ghost-Writing of Self-Represented Litigants’ Briefs Unethical?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. So what are the sanctions (IANAL)?

    “For the foregoing reasons, it is HEREBY ORDERED that Plaintiffs’ counsel shall jointly and severally pay the moving Defendants’ reasonable attorneys for (1) having to prepare and argue the motions to dismiss, and (2) having to prepare and argue the oppositions to the Motion for Leave to Amend.”

    The Judge added:

    “The Court will note that the “reasonable” fees for commercial litigators vary wildly across the country. While hourly rates in excess of $1,000 per hour for an experienced litigator may be the going rate in some locations on the coasts, it is not the case in Colorado. The Court will be looking to the Colorado Bar Association Economics of Law Practice Survey for guidance on the reasonableness of the rates requested.”

    1. N. REID NEUREITER,United States Magistrate Judge, is an agent of the ACLU, and a Democrat attack dog. He needs to be removed and sent to prison.

      1. But Daivd, I thought you were against frivolous lawsuits.

        1. He’s against sane, non-authoritarian thought.

          1. Very true.

        2. I am against frivolous lawsuits. However, I have come to support the American Rule. I think it was Kosinski again who persuaded me. He said, would you like the losing side to pay the fees for OJ’s Dream Team Defense? Smarter than Volokh, and the feminists got rid of him.

          1. Anyone who can get me to support Kelo and the American Rule in 3 sentences should still be on the bench. Trump should reappoint Kosinski to the Ninth Circuit in 2025.

            1. Joseph Kosinski? I guess if it would keep him from making another Tron…

              https://en.wikipedia.org/wiki/Joseph_Kosinski

    2. They’ve been ordered to pay the defendant’s attorneys fees and costs related to the motion to dismiss and motion for leave to amend, which are likely to run to thousands of dollars. However, he cautioned them to charge Colorado rates rather than California rates.

    3. Seems like they should, at a minimum, also be required to pay the costs incurred by the court – staff time, etc., though I’d actually charge more.

      To the extent a frivolous lawsuit delays hearing legitimate cases it imposes costs on other litigants as well.

  2. Off topic, Kids CLimate case:
    No order yet
    The filing of briefs continues: http://climatecasechart.com/climate-change-litigation/case/juliana-v-united-states/

    The NRDC amicus brief entered 7/13 seems to anticipate some sort of settlement or consent decree. But hey, even if there is one, the States may have no protectable interest to intervene.

    I mean seriously WTF. If the Biden DOJ, the plaintiffs, and the judge are all colluding to enter into a consent decree in a case the the Ninth has mandated dismissal, you might be forgiven if you think the rule of law is dead in the USA.

    1. It’s not off topic, there should be sanctions against the attorneys that filed this frivolous case too.

  3. I am very happy to see this happening. Elections are important and should not be subjected to frivolous, poor reasoned lawsuits. Lawsuits like these and other did not use the judicial system in good faith but rather used the lawsuits as a devise to excite there followers.

    There was ample opportunity for the filing of lawsuits with good arguments and evidence. That this was not done supports the validity of the election.

    1. “There was ample opportunity for the filing of lawsuits with good arguments and evidence. ”

      Was there? How much time was there really to file such lawsuits?

      1. Plenty if they had actually had good arguments and evidence.

        1. In what timeframe to gather it? Less than 2 months?

          1. So…..you’re saying they were making strong and repeated allegations BEFORE they gathered good arguments and evidence?

            1. apedad,
              I’d avoid wasting time arguing with the dude in the Armchair. Maybe you can find a good faith argument in his contentions if you have a powerful microscope.

              1. Still hurt because you made assertions that weren’t backed up by facts? Or because you wanted to strip hundreds of millions of vaccines from Asia and Africa without good evidence?

            2. I’m saying there were allegations. I’m also saying that due to the particular circumstances of this case, there was not sufficient to time to put together as strong an evidence as would otherwise be deemed appropriate.

              1. You’re quite a shitty armchair lawyer. Or the perfect representation of one. I can’t quite decide.

                If there are allegations, then they should provide evidence. I can allege anything I want. That does not give you years to conjure up evidence to support your argument.

                What if I allege malfeasance in the midterms? In every single race that a Republican won. Do we get to postpone certification of those results? How many months do I get? 5? 15? 10 years?

                1. They did provide evidence. There is an affidavit from allied security operations, with a preliminary report, detailing the integrity of the Dominion machines, and how that integrity was impaired.

                  Now, would you like a report that isn’t preliminary, that is backwards and forwards guaranteed? Sure. But there wasn’t time for that, especially if the government prevents a full investigation of the machines.

                  1. All armchair, no lawyer.

                  2. Armchair, elections have schedules. Schedules have consequences. Extraordinary election claims require extraordinary evidence presented on tight schedules.

                    As it happens, the time frame for litigation has been permitted to run far too long. Certification of election results should not only moot all ongoing election legal challenges, but also silence by law all claims to victory from losing candidates, if they have been previously sworn to uphold the Constitution.

                    Of course, that law has yet to be written, but it is sorely needed. An election result is a sovereign decree. There is no higher authority. For a candidate for office to contest it in public after it has been formally finalized should be treated as a crime akin to treason, or to support for insurrection.

                    Most losing candidates, like Al Gore and Hillary Clinton, get that. The nation’s experience with Trump shows a law is needed to help an exceptional candidate like Trump understand his responsibilities.

                    1. “Extraordinary election claims require extraordinary evidence presented on tight schedules.”

                      Sounds like a great way to promote fraud. Present a claim…present evidence…it’s deemed “not strong enough”…get hit with massive fines for “frivolous” lawsuits.

                      Show me a lawyer that will take a case, given just a month to collect evidence, and if he’s wrong, he’ll be hit will a few hundred thousand in fines.

                    2. Wait, Lathrop wants to criminalize speech? That’s unprecedented!

                  3. The court discussed the affidavits, AL:

                    The personal affidavits Plaintiffs attached to the original Complaint recount the
                    generalized fear and suspicion that the “system” is rigged, and a sense that American
                    democracy no longer works. The affidavits are notable only in demonstrating no
                    firsthand knowledge by any Plaintiff of any election fraud, misconduct, or malfeasance

                    Maybe read the thing you opine on lest you look like a fool.

                    1. Not all of them. Not the forensic reports.

              2. Armchair Lawyer : “there was not sufficient to time to put together as strong an evidence”

                Who are you trying to kid? Trump may be an imbecile, but he clearly had a plan his supporters faithfully followed: Create a lot of noise about fraud and “his” judges, “his” justices and “his” congressmen would then intervene in his favor.

                That explains why he prepped his supporters with constant talk of fraud months before the election. That explains why he made such a big deal over his early lead when everyone knew Biden would win late vote tallies.

                That explains Trump summoning Michigan state officials to the White House after the election, or personally calling a mid-level Georgian official in charge of that state’s vote count. That explains his demand Raffensperger “find” just enough votes for Trump to win GA, or Pence block congressional certification. And that explains Trump’s rage about Kavanaugh, who was “his” guy who he “made” – but didn’t show loyalty to Trump.

                “Just say that the election was corrupt and leave the rest to me and the R. Congressmen,” Trump told the acting AG on 07Dec. Trump thought noise would justify Republicans overturning the vote results; he just assumed everyone is as criminal as himself.

                But almost all of the GOP officials managing elections in states like Georgia, Arizona, Pennsylvania and Michigan acted per the law. So that’s why Republican legislators have stripped executive power from those officials in bill-after-bill, postelection. What do you think would have happened in – say – Georgia or Arizona if the new laws would have been in effect then? Think their state legislatures would have had the courage to ignore Trump’s bullshit noise & propaganda lies?

                1. It would be not just a mistake, but a potentially fatal one so far as tbe Republic is concerned, to dismiss a man intelligent enough to devise and execute a plan that came as close to working as Trump’s did as an “imbecile.”

                  And maybe not just the Republic. I hate to bring up the analogy, but Hitler’s subsequently-executed colleagues in his original 1933 cabinet thought that he was so stupid he could be easily controlled. Same with the people who brought Dtalin on board. Underestimating people like that can be fatal personally. People like that tend to appear to be stupid to those who don’t understand what they are up to. The fact that the ruse works so well and fools so many people so much of the time (until it’s too late) is some indication it’s a clever one.

                2. “Trump may be an imbecile, but he clearly had a plan his supporters faithfully followed: Create a lot of noise about fraud and “his” judges, “his” justices and “his” congressmen would then intervene in his favor.”

                  Wow…. Someone’s been smoking the conspiracy juice lately. Remind me about Trump and Russia again?

                  1. Armchair, not following the news? Or just denying it?

                    1. You think Trump had a plan? Ha.

                      The biggest confusion here is the simultaneous belief that Trump is a dumb-dumb, but also has a master plan in place so precise that no one can pin him down with definitive evidence.

                    2. Armchair Lawyer : “You think Trump had a plan? Ha”

                      That would be more persuasive if Trump’s scheme showed intelligence, disciplined preparation or sophisticated execution. It didn’t. It only involved three steps:

                      1. Prep his supporters with lots of lies about election fraud pre-election.
                      2. Tell lots of lies about election fraud post-election.
                      3. Assume this noise was cover enough for GOP judges & state officials to throw the election to him.

                      In case you haven’t noticed, Armchair, Trump finds lying easy – and it is natural for him to assume state officials and judges are a equally corrupt as he is. The actual execution of this plan was as clumsy & stupid as you’d expect given its “mastermind”, from the ludicrous junk lawsuits, to the easily-refuted lies, to the ham-fisted approaches to state leaders ….. right up to the 06 mob summoned to riot in his name.

                      The real danger is a reelection loser who copies the Trump playbook but isn’t a addled moron. This is particularly true given the recent voting “fraud” bills that transfer election control to state legislatures.

                  2. OK.

                    The Russians wanted trump elected, and tried to help him. The Trump campaign was, at a minimum, open to that.

                    And of course he had a plan. Telling DOJ just to issue a statement saying the election was corrupt and he would do the rest is a scheme to overturn the results. Trying to get DOJ officials to release a letter saying they had “”significant concerns that may have impacted of the outcome of the election in multiple States, including the State of Georgia” when there was zero evidence to support such concerns is also such an attempt.

                    Stop acting like a Trumpist troll.

                    1. Biden’s acting a lot better towards the Russians than Trump ever did….

                      Hmm..

                    2. That’s a new take. How is Russia better off now than under ‘NATO can suck it’ Trump?

                  3. Armchair Lawyer: “Someone’s been smoking the conspiracy juice lately”

                    And somebody – meaning you – is playing the fool. Your Russian Conspiracy shtick is so tired and pathetic, I only wonder why you bother. Let’s walk thru the facts one one time:

                    Item : The Russian government wanted Trump president and actively worked towards that goal. Everybody admits this, even ALL the republicans on the Senate Intelligence Committee. Mueller’s report documents examples of Russian actions by the score.

                    Here’s one: Russian Intelligence hacked John Podesta and sat on the emails they stole over five months. So when did they finally release them? Mueller established the first batch was leaked less than one hour after the Access Hollywood story broke (“grab’em by the *****). That was the low point of Trump’s campaign; their boy was in trouble; the Russians did what they could to help.

                    Item : The Inspector General of the Justice Department ruled there was enough troubling evidence of Russian-Trump connections to warrant opening an investigation. Mueller’s inquiry found much, much more. It was Mueller who found Trump’s campaign head gave secret briefings to a Russian spy. It was Mueller who discovered Trump’s son said Daddy would welcome secret help from the Russian government (and said this in writing). It was Mueller who found Trump’s proposed National Security Advisor lied about his Russian contracts to the FBI, multiple people in the Trump transition team AND the Vice President. It was Mueller who found Trump’s son-in-law asked the Russians if he could use their secure communication lines during the transition. He didn’t want his own government hearing what was said.

                    All you have is Mueller refusing to press criminal charges of conspiracy. Every other fact is against you. Personally I don’t have a clue whether little Don Jr wishes came true, and Trump’s campaign talked with the Russians actively helping it. Given President Trump tried to strongarm the Ukrainians into collusion with his reelection campaign, DJT’s ethics certainly weren’t a hinderance either way.

                    1. Agree. There is plenty of evidence that Russia interfered in the election to support the former President’s candidacy. Armchairs throwing a false equivalency.

                    2. And the Russians wanted Biden to be president too…

                      What your point?

            3. If you get hit by a car, and the driver speeds away, it may take a while to gather evidence to prove that it happened the way you say it happened. Does that mean that the accident didn’t take place?

          2. These comments suggest a lack of familiarity with litigation addressing anything more complicated than ‘my neighbor’s dog keeps peeing on my hedges.’

            Two months is nearly eternity with respect to preparation of most election litigation.

          3. On the assumption that that’s an honest question, even though yours tend not to be, yes. Lawyers get things done quickly when they have to. They get death penalty cases to the Supreme Court days or even hours before someone is scheduled to be executed. They get the California Covid religious freedom cases to the Supreme Court in no time flat. They usually have a pretty good idea of what evidence they’re looking for and where to find it. Granted, those hours and days of rushing can be pretty miserable, but when the clock is ticking, it happens.

            And, on the other side of that is the fact that the longer they wait, the less likely it is that they will win; if they want to knock out the election results they need to get it done before Biden takes the oath, not after.

            1. “They get death penalty cases to the Supreme Court days or even hours before someone is scheduled to be executed”

              But they have plenty of time before then to gather evidence. I can’t think of the last time a death penalty went from verdict to execution within 2 months. Let alone from arrest to execution.

              “They get the California Covid religious freedom cases to the Supreme Court in no time flat.”
              When they have previous examples

              “They usually have a pretty good idea of what evidence they’re looking for and where to find it.”
              Here’s the problem. The election itself was on one day. They can’t know the evidence they’re looking for before the election is done. We’re STILL doing audits, months afterwards. It’s realistically speaking, too tight a time frame.

              1. Those “audits,” should be illegal. After the election is certified, leave the audits to journalism, and to history. No one with pretensions to official involvement, or who has sworn an oath to uphold the Constitution, should be permitted to mess with the results of a certified election.

                1. Nothing better than making audits illegal. That way, there can never be any fraud.

                  1. Lawful, responsible audits have been conducted in nearly every relevant circumstance. Extraordinary, rogue, haphazard, clown-car audits are a different issue, one regarding which sensible people have an understandably short fuse.

                2. “Those “audits,” should be illegal.”

                  Uh….no.

            2. Let’s use your “death penalty case” for a second, Krychek, because it represents an excellent example of the risks here.

              Let’s say, hypothetically, Mr. X is alleged to commit a murder on November 4th. Somehow, by November 8th or so, he has a trial, and is convicted, and sentenced to death by January 4th.

              As a lawyer, you have severe questions about this. And you try a lawsuit to prevent the death penalty from taking effect. You find a preliminary report from a forensics organization that says the bullet may not have come from the gun Mr. X supposedly had. You put up a lawsuit to prevent the death penalty.

              The judges overturn your lawsuit. Then they hit you with a massive fine of a hundred thousand dollars or so, for a “frivolous” lawsuit. How does that make you feel?

              1. Except that I’ve actually done death penalty work, both trial and appellate, and that’s not how it works. Not even close.

                The entity bringing the lawsuit is the state. They’re not expected to be trial ready a week after the indictment gets handed down, but they are expected to have enough law and facts on their side to survive a motion to dismiss the indictment. And they need to have those before they file, otherwise a reasonably competent defense attorney will make short work of them.

                Likewise here, the Trump attorneys had neither the law nor the facts on their side but they filed anyway. At the motion to dismiss stage, you don’t even need that much in the way of law or facts; just enough to convince a judge that there’s enough to justify moving the case forward. They didn’t even have that.

                These suits were frivolous from their inception. These lawyers deserve everything they’re getting.

                1. “Except that I’ve actually done death penalty work, both trial and appellate, and that’s not how it works”

                  Of course not. Going from arrest to conviction in less than a week? Insane. Then less than 2 months to the execution date? Nuts.

                  “The entity bringing the lawsuit is the state.”
                  In this case the state is the defendant. It’s a lot harder then for the plaintiffs. They don’t have nearly the resources.

                  “They’re not expected to be trial ready a week after the indictment gets handed down, but they are expected to have enough law and facts on their side to survive a motion to dismiss the indictment.”
                  -See, the compressed timeframes again. You need enough from the date of the murder. Not the indictment.

                  “Likewise here, the Trump attorneys had neither the law nor the facts on their side but they filed anyway.”

                  They had multiple affidavits from poll workers who alleged fraud. They had preliminary audit reports from companies that demonstrated the integrity of the voting machines was potentially compromised. And they needed to get all that together in an alarmingly short time.

                  1. The compressed time frames exist primarily in your mind. Nobody is telling them to be ready to prove their case in a matter of days or weeks. But they have to have a basis for bringing the lawsuit in the first place rather than just stuff they’ve pulled out of their hats. If you want to analogize to a death penalty proceeding, it would be like getting an indictment that said “The state indicts John Smith for murder because he was probably somewhere in the county when the murder took place.” Motion to dismiss time.

                    Here’s the applicable rule, Fed.R.Civ.P. 11:

                    “(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
                    (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
                    (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
                    (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
                    (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.”

                    Judge after judge after judge, Democrat and Republican alike, determined they didn’t even have that.

    2. I have to agree with sanctions in this case. And I wonder how much of the rush to file lawsuits was related to fundraising.

      I was fraud curious about the election, but I thought from the beginning the courts were the wrong venue for investigating the facts. State Legislative audits should be the preferred method, they have both the responsibility and the authority to investigate election problems. If that is not satisfactory the FOIA requests to develop the information needed to go to court would have to suffice.

      But the courts are not the place to go for a fishing expedition.

      1. State Legislative audits should be the preferred method, they have both the responsibility and the authority to investigate election problems.

        Sure the do. In general. For the purpose of establishing systems for fair and impartial elections.

        They have zero such authority, or at least not legitimate authority, with regard to particular election outcomes. That authority belongs to the People themselves, and solely to them. Inviting legislators to intervene to decide election outcomes is a formula for wrecking American constitutionalism. It would deprive the People of their sovereignty at the point where it matters most.

  4. Hope the DOJ’s defense (under former Judge Merrick Garland) of the Biden’s eviction moratorium, which actually counts on the delays caused by litigation, is given the same scrutiny.

    1. Skipping right by most of the nonsense to get to the interesting bit: You think the same standard should apply to defending a suit as to filing one in the first place?

      1. Yes. An unmeritorious defense is every bit as unmeritorious as a unmeritorious claim. Indeed, the whole idea of forcing someone to sue you when you know you’re in the wrong is generally addressed by abusive litigation statutes. A vexatious multiplication of litigation applies to both sides.

        1. I agree that lawyers generally shouldn’t make frivolous arguments, file frivolous motions, etc. If there is no legitimate defence you should admit fault and pay up. And yet I think I would apply a separate (higher) standard to hauling someone into court when there’s no non-frivolous dispute in the first place. But I can see how you might disagree, it’s an interesting one.

          1. Biden today: “I can’t guarantee you the court won’t rule that we don’t have that authority but at least we’ll have the ability to, if we have to appeal, to keep this going for a month-at least. I hope longer.”

  5. Only a deluded liberal could think these suits are “frivolous” but lawsuits against Remington on the basis that they marketed their guns to killers or lawsuits against a baker for not baking a cake for a “couple” whose idea of marriage consummating is ejaculating into another man’s lower intestine, are legitimate.

    1. Surely you wouldn’t accuse the government of Mexico of filing frivolous lawsuits? https://www.bbc.co.uk/news/world-latin-america-58091071

      1. Yes, I would. Mexico is a corrupt shithole, largely because of its endemically violent and drunk mestizo population, and they need to get their own house in order before pointing fingers.

        1. Doing something about all that violence would probably be easier if Mexican criminals couldn’t simply go to Wallmart to pick up automatic weapons.

          1. Are you another one of those idiots who does not know the difference between automatic and semiautomatic?

            And are you dumb enough to actually think that Mexican drug cartels stock up on weapons and ammo at freaking WalMart?

              1. Protip for you, kiddo…tone of voice does not show in typed comments.

            1. I don’t know if this is what he means, but when I was a kid we called, for example, a non-pump or bolt action rifle an ‘automatic’ one.

              1. When you were a kid you called a lot of things by the wrong name, none of us are kids now.

                1. When I was a kid the military called a 1911 Colt an automatic pistol. A lot of older veterans still call it that.

                  A larger question is what do you suppose you gain by gun pedantry? Do you suppose pedantic gotchas do anything to discredit (admittedly rare) sound arguments from gun critics?

          2. In that case Mexico should also sue Walmart

          3. Given that, generally speaking, only citizens and permanent residents can buy guns in the United States, Mexican criminals are not buying weapons at Walmart or any other legitimate source.

          4. The Obama administration had a special program to greenlight illegal weapons sales to Mexican cartels in order to create international pressure to ban assault rifles domestically.

            But it didn’t work. And Mexico was not happy that Eric Holder and Obama thought it was ok to manufacture dead Mexicans to use as US political props.

              1. Either way it’s an illegal conspiracy against lawful gun owners.

                The Bush FBI and ATF was rotten to the core, I’m not claiming the federal law enforcement rot started with Obama. But the number of guns being run did go up dramatically with Fast and Furious.

                1. What law does it break?

                  Something can be crappy, without being criminal.

                  1. You aren’t really claiming that the government can supply guns to narco-terrorists knowing they will be used in criminal activity, and not break any laws?

                    They won’t ever be charged, but that hardly means that there were not grounds for indictment and conviction.

      2. That’s not a frivolous, or not in the way you think.

        One of the lead attorneys on the case is Jonathan Lowy of the Brady Center.

        What is going to happen is that they Mexico forum shops, gets a good ruling, then either the Biden admin intervenes or files amicus briefs, then enters into a consent agreement which weakens or eliminates Protection from Lawful Commerce in Arms Act (PLCAA) and/or forces gun control that they could not obtain through Congress or rulemaking.

        But as the Kids Climate Case (see my post above) shows, even an order of dismissal is no barrier to a settlement/consent order. See also: CDC eviction moratorium where the President admits it is likely unconstitutional.

        So, oh yeah a settlement order is coming, regardless of legal merits, bank on it.

        1. “oh yeah a settlement order is coming, regardless of legal merits, bank on it.”

          OK, I’ve bookmarked your prediction.

          1. Legal quantum uncertainty principle: The act of people realizing the strategy of a lawsuit and then acting accordingly makes the strategy less likely to work.

            I will be more than happy to be proven wrong.

        2. “bank on it.”
          Mexico is

          1. If you think this lawsuit is about the money I have a few Hillary emails to sell you.

            The money is a distraction. What Brady/Biden administration want is a consent agreement that weakens PLCAA and furthers gun prohibition. I mean, Biden et al could literally hand Mexico $10 billion in funding at the end of Sept by sneaking it into infrastructure or the behemoth reconciliation budget and call it border security or some stupid shit. $10 billion is less than peanuts.

            1. Yes. Just like how the Democrat governor of North Carolina “settled” the bathroom transgender lawsuit.

      3. From the article it shows how frivolous the suit is:
        “The US Bureau of Alcohol, Tobacco, Firearms and Explosives found that 70% of firearms recovered in Mexico between 2014 and 2018 which were submitted for tracing had come from the US.”

        Mexico only submits for tracing firearms that they know are likely to have come from the US. They don’t trace guns that came from Columbian Narco terrorists, or bought through former Soviet surplus, or the middle east, or even the 26% of guns bought by the Mexican government for their own military and police that are diverted to the cartels.

        1. So you discount a study, and then provide a number with no cite?

          1. You mean, like the studies in which doctors found that smoking Chesterfield cigarettes resulted in no harm?

            Those, too, were cited in the attempt to sway opinion.

            1. Studies can be wrong.

              You should criticize studies with other studies, not just saying ‘26% of guns say you’re wrong’ and leaving it at that.

          2. It’s not a study. Mexican law enforcement takes guns it recovers that it thinks came from the US and sends them to the US for tracing.

            It would be like a hospital selecting patients for a liver biopsy, and finding 70% of the patients they selected had liver cancer.

            Your conclusion I suppose would be that 70% of the patients in the hospital had liver cancer.

            1. ‘that it thinks came from the US’ is unsupported.

    2. “lawsuits against a baker for not baking a cake for a “couple” whose idea of marriage consummating is ejaculating into another man’s lower intestine, are legitimate.”

      1. That’s not how that worked, there was a non-discrimination law passed by the legislature and the couple discriminated against simply filed a complaint with the relevant agency.

      2. You really, really, really need to find someone who will let you have some anal so you’ll stop obsessing over it.

      1. 2. What makes you think he already hasn’t?

        1. This blog just gets better and better . . .

          From certain perspectives, anyway, including mine.

      2. 1. In some places, it did work that way. And even when it was an administrative sanction, who cares? It made no difference to the victimized bakery.

        2. Stop projecting.

        1. Projecting? You’re the one who keeps bringing up gay butt sex, even when it’s completely irrelevant to what we’re discussing.

    3. So the Trump judges who dismissed them were all deluded liberals?

    4. Man, talk about delusional….

  6. Huh. I am generally in favor of sanctions for frivolous lawsuits, but are we now looking at the politicization of this practice, where the only lawsuits sanctioned are those by people whose politics we don’t like? Did Stacey Abrams file lawsuits and/or get sanctioned or did she just yammer on for years about how she was the rightful governor? I know there are problems with the idea as far as access to the courts go, but seems like there was a lot of discussion on the “loser pays” proposals some years ago.

    That being said, it was an ongoing frustration to me, given the amount of actual evidence of problems with our election system* that the people filing lawsuits were generally non-serious and in some cases nutty. Seriously, what lawyer says that she will be releasing the Kraken during a press conference?

    *I’m not claiming that Trump won, just that there were serious issues that need to be addressed, and aren’t being because of politics.

    1. Just out of curiosity: When you observed that, despite the vast amounts of money available, no serious lawyer was submitting serious evidence in court, you didn’t conclude that maybe your understanding of the evidence was a little off?

      1. By definition, there couldn’t be any evidence, because the Democrats destroyed all of it. Ever hear of spoliation?

        1. That’s convenient. I think I’m going to sue the US government for ONE TRILLION DOLLARS because of something that I can’t prove because they destroyed all the evidence.

          1. Make sure you use the Dr. Evil voice too.

          2. The golden rule of conspiracy theories is that the less evidence there is, the more it proves that it happened.

            1. That is obvious especially when the conspirators were trained in the deep state.

    2. “the people filing lawsuits were generally non-serious and in some cases nutty”

      Well, look who they were filing them for!

  7. Hmm seems to be some unequal application of the law these days. Does Garland’s lawsuits claiming that showing an ID to vote is racist qualify as frivolous?? Naw no way. Because he belongs to “the party”.

    Let’s do J6 protestors. Many let in by the CP who committed no violence or vandalism yet are being held without bail. Does that violate 6A? It seems you guys are afraid to talk about it

    C’mon Volokh team! So many boring articles about stuff no one cares about.

    1. ” Does Garland’s lawsuits claiming that showing an ID to vote is racist qualify as frivolous?”

      You’re confusing (among other things) thinking a legal theory is crazy with thinking that someone who alleges things they have no evidence for is crazy.

    2. “Many let in by the CP who committed no violence or vandalism yet are being held without bail.”

      Cite?

      Also, it’s still funny to see conservatives suddenly discover the 6th Amendment.

    3. Closed questions of fact != open questions of law.

      Your January 06 nonsense is closer to the mark. A lawsuit based on that theory would probably also go similarly badly. Right-wing reality tends not to do well in the largely evidence-based judiciary.

    4. Voting restrictions that have the purpose and effect of disproportionately impacting minorities is a perfectly cognizable claim under the Voting Rights Act that the Court can remedy, i.e. not frivolous.

      1. So, what do you think of NYC’s new vaccine mandate policy then?

        1. Does it apply to voting precincts?

          1. So, you’re OK with the disproportionate impact of keeping minorities out of restaurants?

            1. As both a description of what the law allows and an opinion on what it should allow, yes.

              1. Interesting….

                No surprise minorities are abandoning the Democratic party. Again.

                1. Why do you find my claims interesting?

                  1. It is contrary to the typical liberal position. There have been lots of claims about racially disproportionate impact in housing or education.

                    But here you have a government policy that will ban 66% of African Americans from even entering a restaurant, while it’s just 50% for whites?

                    I can’t think of the last time there was a government policy that had such an racially discriminatory effect for just entering a restaurant. Maybe 1956 or so.

                    1. Disparate impact law is driven by 1) the difficulty in proving intentional discrimination coupled with 2) the belief that intentional discrimination is nonetheless taking place. In contrast, there is no credible belief that NYC is intentionally discriminating.

                    2. Disparate impact law doesn’t require showing intentional discrimination. You’re thinking of disparate treatment.

                    3. Read what Josh said again.

                    4. Of course you don’t have to prove intentional discrimination under disparate impact law (that was implied in the first part of the motivation for having disparate impact law). It’s the second part that is not present in the NYC vaccine regulations. Thus, the resulting disparate impact is not problematic.

    5. “Let’s do J6 protestors.”
      The big issue here is solitary confinement prior to trial. That is plain and simple a human rights abuse. Gosh, even Warren complains about that.

  8. This feels like a way to suppress people who are looking to support their voting rights….and is particularly dangerous.

    The 2020 election was fairly unique, with a rapid change in voting “laws” and many questionable items were done. Moreover, the timeline to challenge any results from the election was particularly condensed. This was coupled with the effective blacklisting of many major law firms from actually taking up these cases. (I.E., “progressive” organizations told the law firms that if they took the case, they’d never get another client in DC again).

    All this this led to less experienced law firms taking up the cases, and having more rushed orders, in a fairly unique situation. And now the concept is to hit them with punitive fines? For supposed “bad faith”?

    The courts are supposed to be a fair and even way to examine and arbitrate disputes, including these. But if the courts and lawyers are skewed in such a way that it is effectively impossible for one “side” to take their case to court, through blacklisting of lawyers and punitive fines for “bad faith”….people will wonder. Are the courts really fair and even?

    And if they are deemed not to be…what is the alternative?

    1. So what you’re saying is that the courts should rule for plaintiffs with frivolous claims because otherwise people who support frivolous claims will believe the courts are not legitimate?

      1. What’s I’m saying is that this acts as a way to chill claims from ever being brought.

        Let’s give an example. Let’s say, 20 years ago, you go to some lawyers and say “I think I should have the right to be married to a man, despite the fact I’m a man. I want to sue in court”.

        The lawyers say: “OK, we’ll take your money. We don’t think you’ll win, but we’ll bring the case regardless”. And the case gets pushed forward. It may not win, but it starts to push the idea forward in the courts.

        Compare that to the following:
        The lawyers say: “No, we won’t take your case. We don’t think you’ll win, and we also think that the judge will judge the case “frivolous” and then we’ll be on the hook for hundreds of thousands in fees. So we won’t even file the case”.

        See what happens?

        1. I think you may have discovered the reason why the bar for sanctions is so high. Next it might be nice if you could have a think about the difference between frivolous legal arguments and frivolous factual accusations.

          1. I think you’re acting to prevent minorities from being able to bring lawsuits.

            Which is dangerous.

            1. “I think”

              Extraordinary claims require extraordinary evidence.

        2. What’s I’m saying is that this acts as a way to chill claims from ever being brought.

          Which is exactly the result which should follow for election cases which cannot be resolved before the election result is certified. A certified election is a sovereign decree. No court enjoys authority to overturn the sovereign. Losing candidates who continue to contest elections after they have been certified should be recognized as would-be rivals for American sovereignty, a crime akin to treason. They should be punished accordingly. Trump has showed the nation why we need a law to make that clear to everyone.

        3. As for your misunderstanding of sanctions, they’re only applied where an argument – factual or legal – is so very weak that it’s wasting everyone’s time.

          You can argue pretty much anything without being sanctioned, as long as you can do it in good faith. But if you turn up to court without any argument or evidence to back up your claim(s), you’re liable to be sanctioned.

    2. “the effective blacklisting of many major law firms from actually taking up these cases”

      They didn’t want to be ‘blacklisted’ as pushing silly, nutty conspiracy theories.

      1. That’s not what happened. Most law firms are more than happy to take your money. Even if it’s a “nutter” theory. Money is money.

        Many progressive organizations acted to threaten to blacklist the firms. That would cost them more money in the long term.

        1. Yes, money is money. And if you get disbarred or otherwise sanctioned, that’s going to cost you money.

        2. My first thought was ‘no way this guy graduated from law school’ . . . but then I remembered South Texas, Regent, Cooley, Liberty, Phoenix, and Ave Maria. And Cooley again.

            1. See, this is why I don’t post personal details. People like you. Also, people who don’t get the reference.

              1. If you are not a lawyer, (1) that explains many of your comments and (2) that diminishes the value of many of your comments to the point of making your unqualified declarations on legal issues seem daft and worthless.

        3. How would progressive organizations blacklist Republican firms? People who wouldn’t hire these firms would threaten to continue not to hire them?

      2. But defending murderers, BLM terrorists, and men who like to ejaculate bareback into other men, spreading HIV, are worthy recipients of pro bono work?

  9. Disbarment would be far more appropriate

    1. For that you’d probably have to do something even more crazy, like hiring a PI to put the judge under surveillance.

      1. I hope John Carpay is the next guest-blogger at the Volokh Conspiracy. I offer $1,000 in cash to Prof. Volokh (or directed to a non-right-wing charity) for arranging that.

  10. I knew the hot takes in these comments would be Super Hot and I am not disappointed.

  11. Good news. Slap these assholes down. They knowingly filed it frivolously and taking them to task is only appropriate.

    1. Assuming you’re in favor of the judiciary holding Biden in contempt for the latest CDC order?

      1. Which court order did he violate?

        1. The one in Josh Blackman’s head.

  12. “while attempting to add RICO claims based on a TIME magazine article that provided no support for such claims”

    Why is it ALWAYS RICO?

    Is there some handbook of total nuttery that says, “Remember- gold fringe on flag, and always, always file a RICO count.”

Please to post comments