For well over a century, the Commonwealth of Virginia has disobeyed a federal law designed to protect the right of former enslaved people to vote. When the United States started to readmit the rebellious slave states after the Civil War, Congress feared that the former Confederate powers would invent new crimes with which they could disenfranchise Black Americans. To help ensure the right to vote across the Commonwealth, Congress passed the Virginia Readmission Act of 1870. That Act prevents Virginia from changing its constitution to deprive any citizen of the right to vote, “except as a punishment for such crimes as are now felonies at common law.”
Several times, Virginia has rewritten its constitution contrary to the statute. Each new version has disenfranchised people for offenses other than felonies at common law, and Virginia now automatically disqualifies all felons from the ballot box.
The Plaintiffs, Tati Abu King and Toni Heath Johnson, have lost their right to vote under this provision. They brought the instant class action to enjoin election officials from enforcing Virginia’s felon disenfranchisement provision.
The Plaintiffs proffered two expert witnesses, Prof. Carissa Hessick and Prof. Edward Ayers. The Defendants moved to exclude both.
Law And Legal Expert Witness
Carissa Byrne Hessick received her undergraduate degree from Columbia University in 1999 and her law degree from Yale Law School in 2002. She has been researching and teaching criminal law since 2005. Currently, she is the Anne Shea Ransdell and William Garland “Buck” Ransdell, Jr. Distinguished Professor of Law at the University of North Carolina School of Law.
Prior to joining the faculty at the University of North Carolina, she served as a Professor of Law at the University of Utah’s S.J. Quinney College of Law, a Professor of Law at Arizona State University’s Sandra Day O’Connor College of Law, and a Climenko Fellow and Lecturer on Law at Harvard Law School. From January through May of 2024, she served as the Fulbright Distinguished Chair in Arts, Humanities, and Social Sciences at the Australian National University.
Edward L. Ayers is a professor at the University of Richmond. He is the Tucker-Boatwright Professor of the Humanities and President Emeritus at the University of Richmond, as well as the executive director of New American History and former co-editor of American Panorama, two digital projects based at the University. Ayers is also a co-host of BackStory: the American History Podcast, a nationally syndicated podcast, made possible through Virginia Humanities.
Hessick analyzed the history of Reconstruction and concluded that the law of the Reconstruction Era distinguished between common law felonies and statutory ones.
From this premise, Hessick offered a definition of “felonies at common law” and compiled a list of such felonies at the time of Reconstruction. Hessick then used comparative techniques to categorize Virginia’s modern felonies as common law felonies or not common law felonies, according to whether today’s crimes descend from Reconstruction Era common law felonies.
First, the Defendants argued that the Court must exclude Hessick’s evidence because she offered an inadmissible legal conclusion by defining the phrase “felonies at common law” in the Virginia Readmission Act. Second, the Defendants argued that Hessick used an unreliable methodology in her report because she could not classify some modern felonies, and her first-of-its-kind analysis made peer review difficult.
Hessick offered a reliable analysis generated largely by traditional, primary-source historical research. Moreover, Hessick’s conclusions did not affect the result in this case: The Court has reached its own conclusion about the law. Again, the Rule 702 inquiry here “is much less critical . . . because there is little danger of prejudicing” the Court sitting as both trier of fact and law—and the Court, which has now heard “the expert’s testimony or opinion,” has determined it has no effect on the Court’s legal analysis.
Ayers
As with Hessick, the Defendants contended that Ayers presented an inappropriate legal conclusion on the meaning of the disenfranchisement provision in Virginia’s Constitution.
The Defendants further labeled Ayers’s evidence irrelevant because it focuses on “racial discrimination in the south,” and “[P]laintiffs are not bringing a racial-discrimination claim” or claims involving other states’ regimes. The Defendants also questioned Ayers’s methodology.
The Court’s analysis of Hessick’s relevance applied with equal force here. To the extent the Court has relied on Ayers’s offerings, they have merely provided a largely undisputed context of Congress’ concerns about the expected legal shenanigans of the readmitted states: Ayers comments on the legal and political regime in place during the Reconstruction Era, colored by unsurprising discriminatory motivations.
The Court acknowledged that Ayers considered racial history in and beyond the Commonwealth’s borders. But again, “because there is little danger of prejudicing the judge,” the Court can determine what weight this portion of Ayers’ evidence deserves in resolving any factual disputes.
Finally, the Court rejected the Defendants’ allegations that Ayers departed from his “normal methodology” in preparing for this case. Ayers consulted with and cited to a variety of historical sources. Ayers further detailed his reliable methodology, at length, during a deposition.
Held
The Court denied the the Defendants’ motions to exclude the testimony of Professor Carissa Byrne Hessick and Dr. Edward L. Ayers.
Key Takeaway
An expert may meet Rule 702’s relevancy requirement even if he or she offers a legal conclusion. In this case, Ayers considered racial history in and beyond the Commonwealth’s borders. The complex legal concepts involving voting rights and constitutional law make it a typical case for allowing expert testimony that arguably states a legal conclusion in order to assist the jury.
This case involves the alleged unconstitutionality of House Bill No. 71, Act 676 (“H.B. 71” or the “Act”).
This law provides in relevant part: No later than January 1, 2025, each public school governing authority shall display the Ten Commandments in each classroom in each school under its jurisdiction. The nature of the display shall be determined by each governing authority with a minimum requirement that the Ten Commandments shall be displayed on a poster or framed document that is at least eleven inches by fourteen inches. The text of the Ten Commandments shall be the central focus of the poster or framed document and shall be printed in a large, easily readable font.
Defendants Cade Brumley, Conrad Appel, Judy Armstrong, Kevin Berken, Preston Castille, Simone Champagne, Sharon Latten-Clark, Lance Harris, Paul Hollis, Sandy Holloway, Stacey Melerine, Ronnie Morris, East Baton Rouge School Board, and St. Tammany Parish School Board (collectively, “AG Defendants”) challenged Plaintiffs’ introduction of Steven K. Green as an expert witness under the Daubert standard.
History Expert Witness
Steven K. Green earned a B.A. degree in History and Political Science, Magna Cum Laude, from Texas Christian University in 1978 where his minor was Religious Studies. He graduated from the University of Texas School of Law in 1981, earning a J.D. degree. In 1987, he received a Master’s degree in American Religious History from the University of North Carolina, Chapel Hill and a Ph.D. in Constitutional History from the same university in 1997. He is currently the Fred H. Paulus Professor of Law and Affiliated Professor of History and Religious Studies at Willamette University in Salem, Oregon, where he was also the Director of the Willamette Center for Religion, Law and Democracy from 2007 to 2020. He has authored “seven books and more than fifty scholarly articles and book chapters” in the area of “the intersection of law, religion, and history.”
In his report and testimony, Green offered opinions regarding “the history of the U.S. Constitution and First Amendment with respect to religious matters; the history of the Ten Commandments with respect to U.S. law and government; the history of displays of the Ten Commandments in public schools; and the denominational nature of the specific version of the Ten Commandments adopted in House Bill No. 71, Act No. 676 . . . .” In his report and testimony, Green offered “four key conclusions”: –
The Religion Clauses of the First Amendment were rooted in the Founders’ profound concerns for protecting the conscience of individuals and religious communities; avoiding official denominational preferences, including official promotion of religious doctrine; and preventing the religious divisiveness that flows from government favoritism of some religions or non-religion.
The historical record demonstrates that the Ten Commandments are not a foundation of the American Government or legal system.
There is no evidence of a longstanding historical acceptance and practice of widespread, permanent displays of the Ten Commandments in public school classrooms.
The version of the Ten Commandments adopted under H.B. 71 is Protestant and thus religiously exclusive.
Summary of AG Defendants’ Arguments
AG Defendants contended that Green has failed “to identify any external standard validating his methodology.” Moreover, his opinions “attempt to overrule the Supreme Court on historical questions it has already definitively asked and answered.” AG Defendants added that Green’s proffered opinions are not truly independent because of his background as an advocate.
Most importantly, Green’s opinions are not relevant because (a) “the standard [governing the Establishment Clause] is not concerned with whether a specific challenged practice occurred in the past, but instead with whether the current challenged practice reflects any of the already-identified hallmarks of a religious establishment[,]” and (b) his opinions do “not tend to establish any fact at issue [since] the historical facts are not in dispute, just how to characterize those facts.”
Analysis
A. Has Green Used an Accepted Methodology in Reaching His Opinions?
AG Defendants argued that Green has failed to use, or at least identify, an “external standard validating his methodology.” But in his report, Green explains the methodology he used for his historical analysis which he described as “standard and well-accepted methodologies used by historians” including “review[ing] both primary and secondary sources[,]” determining the reliability of the sources, comparing their consistency to other evidence, considering the circumstances of their production (including the place, time and source of production), “consider[ing] how the plain language of the source would have been interpreted at the time of its writing, and avoid[ing] the application of modern interpretations to documents that were centuries old.”
At the Daubert hearing, during both direct and cross-examination, Green went into greater detail regarding the standard methodology utilized by historians in reaching conclusions and how he utilized this methodology in reaching his opinions in this case. To the extent that he relied on his prior work in this area, he explained that he followed that same methodology there. In both direct and cross-examination, Green pointed to the fact that many, if not most, of the books and articles relied upon by him had been peer-reviewed and explained the peer-review process.
Counsel for the AG Defendants acknowledged that Fifth Circuit precedent does not require the same criteria for measuring reliability of expert testimony in the “soft sciences” as in the “hard sciences.” Similarly, and pertinent to this case, the Fifth Circuit has concluded that “soft sciences” involve “necessarily diminished methodological precision” when compared to other scientific disciplines like mathematics and engineering.
The Court found that Green has shown a well-articulated, supported, and adequate methodology used in reaching his opinions and therefore denies this basis for AG Defendants’ Daubert challenge.
B. Do Green’s opinions “attempt to overrule the Supreme Court on historical questions it has already definitively asked and answered”?
AG Defendants argued that Green’s opinions “attempt to overrule the Supreme Court on historical questions it has already definitively asked and answered.” Specifically, AG Defendants pointed to Green’s statement that “the Ten Commandments are not a foundation of the American government or legal system.” They argued that this is at odds with Supreme Court and Fifth Circuit jurisprudence.
AG Defendants contended that Green’s opinions contradict the Supreme Court and is thus ipso facto unreliable.
To state the obvious: contrary to AG Defendants’ suggestion to the contrary, an expert cannot “overrule” a Supreme Court opinion. Indeed, experts cannot render legal conclusions at all. But Green was not tendered as a legal expert and, indeed, the Court sustained objections to questions posed to Green by counsel for AG Defendants during cross-examination that attempted to elicit legal opinions from him.
The Court held that AG Defendants’ objections go to the merits of his testimony and are therefore a matter for cross-examination at the hearing rather than exclusion via a Daubert motion.
C. Does “Green’s background as an advocate . . . mean[ ] his proffered opinions are not truly independent and are thus unreliable”?
AG Defendants argued that “Green’s background as an advocate means his proffered opinions are not truly independent and are thus unreliable.” They maintained that his work for Americans United for Separation of Church and State (“AUSCS”) for over a decade including directing the organization’s litigation practice and representing AUSCS in cases similar to the present one “indicated a potential for bias.”
Both sides agreed that the fact that an expert is an employee or former employee of a party is not grounds for automatic exclusion and that employees and former employees are sometimes admitted as experts.
The Court agreed with Plaintiffs that AG Defendants have failed to show bias merely because of Green’s employment with AUSCS some twenty years ago, and this is especially true in light of Green’s extensive scholarship in the area at issue. Despite the opportunity to cross-examine Green on this issue, AG Defendants have offered no additional evidence of supposed bias.
D. Are Green’s Opinions Relevant to the Issues to be Decided?
The Court rejected AG Defendants’ arguments regarding the alleged irrelevance of Green’s opinions.
E. Is There a Lessened Need for Daubert Scrutiny?
If this Daubert motion were in advance of a jury trial, the Court would, for the reasons stated above, find Green’s methodology and the reliability of his opinions such that the Court would deny the Motion. But the testimony was given at a preliminary injunction hearing tried to the bench where “[t]here is less need for the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself.” This is an additional reason that denial of the Motion is warranted.
Held
The Court denied the Defendants’ motion to exclude the testimony of Steven Green.
The Court accepted Green as an expert in the fields tendered: the history of the United States Constitution and the First Amendment with respect to religious matters, the history of religion in U.S. public schools, and denominational variations in the text of the Ten Commandments.
Key Takeaways:
It is not the role of the court to decide whether an expert’s opinions are correct or, in the case of competing and conflicting expert opinions, which one is right or even which one has greater support. It will often occur that experts come to different conclusions based on contested sets of facts. A Daubert challenge does not test the correctness of the opinion but only the methodology utilized by the expert.
The fact that an expert is an employee or former employee of a party is not grounds for automatic exclusion and employees as well as former employees are sometimes admitted as experts.
Both in his report and in his testimony, Green explained in exquisite detail how his “four key conclusions” were supported by historical sources and the other data upon which he relied.
Respondent traveled with her three minor children, J.H., A.H., and S.H., from Mexico to the United States in 2022. Petitioner sought the return of his minor children to Mexico under the Hague Convention. Respondent called Dr. Minal Giri to testify as an expert witness on July 16 and Dr. Paul Gillingham to testify as an expert witness on August 5. Petitioner reserved his objections during the hearing and now moves to exclude the opinions and testimony of Giri and Gillingham.
Pediatrics Expert Witness
Minal Giri is a licensed pediatrician with a medical degree from the University of Chicago. She has been a practicing pediatrician for over twenty years, since she completed her residency at Lutheran General Hospital in 2002. As part of her training, she studied mental health and mental trauma experienced by children. And as part of her current practice, she sees and treats children suffering from mental health conditions such as anxiety and depression on a regular basis. She completed a Global Mental Health Certificate at Harvard University in 2020 that focused on refugee trauma and recovery.
Paul Gillingham is a Professor in the History and Spanish & Portuguese Departments of Northwestern University and holds a Ph.D in the history of modern Mexico.
In her report and testimony, Giri diagnosed J.H. with post-traumatic stress disorder (“PTSD”) and generalized anxiety disorder, A.H. with PTSD and generalized anxiety disorder, and S.H. with separation anxiety disorder. She opined that if the three children were to return to Mexico, this would compound their existing trauma and exacerbate their disorders.
Qualifications
First, Petitioner argued that Giri is not qualified to provide psychological diagnoses because she is neither a psychiatrist nor a psychologist. But Giri has specific experience diagnosing and treating mental health and mental trauma for immigrant and refugee children. She has written expert reports for approximately 35 prior cases, each of which involved the mental evaluation of children or adults seeking asylum and immigration relief. The Court held that Giri is qualified to provide psychological diagnoses for the three children.
Methodology
Petitioner challenged Giri’s methodology. Primarily, Petitioner argued that Giri’s methodology was flawed because she did not ask questions during the interviews about possible causes of the children’s symptoms, beyond their father’s alleged mistreatment. Moreover, Petitioner contended that Giri’s reliance on the Istanbul Protocol implies a false assumption by Giri that the children had been traumatized.
The Court held that Giri’s methodology was sound. She interviewed J.H., A.H., and S.H. consistent with her training as a pediatrician and reached conclusions based on those interviews.
Petitioner also argued that Giri’s methodology was flawed because the DSM-5 contains eight requirements for a PTSD diagnosis and Giri’s reports for J.H. and A.H. enumerated just five of these requirements. The Court held that Petitioner’s cross-examination was the appropriate remedy to attack the missing information rather than exclusion of Giri’s entire report.
Petitioner argued that Giri’s methodology was flawed because Giri was not present when J.H. and A.H. filled out the GAD-7 and PHQ-9 questionnaires (screening tests for mental health conditions) and thus had no way to verify their answers. Giri testified that her diagnoses were based on the interviews, not the questionnaires, and that the questionnaires merely confirmed the diagnoses she had already reached based on the interviews. The Court affirmed the admissibility of the diagnoses.
Paul Gillingham
In his report and during his testimony, Gillingham offered an opinion on 1) the general level of violence in Respondent’s hometown of Zitácuaro; 2) whether, based on his understanding of Mexico and Zitácuaro, Respondent’s allegations of violence were credible; and 3) whether, based on his understanding of Mexico and Zitácuaro, Respondent would have been able to rely on the police or court system for recourse in her divorce case or for physical protection.
First, Petitioner argued that Gillingham’s report should be excluded because Gillingham failed to disclose all his sources. The Court held that this particular nondisclosure does not warrant exclusion of the entire report. Gillingham testified that he had relied on three data points in forming his opinion about violence in Zitácuaro: homicide rates, internally displaced persons, and disappearances. Gillingham’s report disclosed homicide rates but failed to disclose anything about internally displaced persons or disappearances. Overall, Gillingham’s eighteen-page report contains thorough citations with fifty-eight footnotes. Moreover, Petitioner’s counsel effectively and extensively cross-examined Gillingham on this issue. The Court found that Petitioner fully cured any prejudice stemming from the non-disclosure and thus that the non-disclosure was harmless.
Second, Petitioner argued that Gillingham’s report and testimony should be excluded as unreliable and irrelevant because Gillingham failed to rely on facts specific to this case. However, Gillingham’s mission was to take the allegations made by Respondent and to assess their general plausibility given what he knows, as an expert, about the political and criminal situation in Zitácuaro. The Court held that the nature of Gillingham’s testimony is unusual. It is less of an analysis and more a sharing of information about Zitácuaro. But there is nothing to suggest that the information provided by Gillingham is flawed. The Court found it at least minimally relevant and thus admissible.
Held
The Court denied the Petitioner’s motions to exclude the opinions and testimony of Minal Giri and Paul Gillingham.
Key Takeaway:
All expert opinions come with assumptions and conclusions. Petitioner is free to disagree with Giri’s assumptions and conclusions, but that does not render Giri’s testimony inadmissible.
There is nothing to suggest that the information provided by Gillingham is flawed. And his testimony is at least minimally relevant to provide the Court with context for Respondent’s hometown of Zitácuaro. Whether the Court will ultimately afford Gillingham’s testimony much weight in deciding this case is an open question. The testimony, however, is at least minimally relevant and thus admissible.
Case Details:
Case Caption:
Delgado Moreno V. Hernandez Escamilla
Docket Number:
1:23cv15736
Court:
United States District Court for the Northern District of Illinois, Eastern Division
A district judge in Vermont refused to exclude the testimony assessing the impact of gun laws presented by the State’s expert witnesses.
Plaintiffs, corporate entities affiliated with gun ownership and several Vermont residents, filed this action against Defendants, high-level Vermont state officials. Plaintiffs allege that 13 V.S.A. § 4021, which prohibits possession and sale of “large capacity ammunition feeding device[s],” and 13 V.S.A. § 4019a, which prohibits transfer of a firearm without a background check or expiration of a waiting period, are unconstitutional under the Second Amendment. On December 20, 2023, the Plaintiffs filed a motion for a preliminary injunction against the enforcement of the Vermont laws. A hearing on that motion is set for May 23, 2024. In anticipation of that hearing, Plaintiffs filed a motion to bar the State’s expert witnesses from testifying.
Economics Expert Witness
Lucy Allen is a Senior Managing Director of NERA Economic Consulting (“NERA”), a member of NERA’s Securities and Finance Practice and Chair of NERA’s Product Liability and Mass Torts Practice. She has analyzed issues related to mergers, ERISA claims, market microstructure, and alleged market manipulation and insider trading, including on complex financial instruments such as credit derivatives, futures, and swaps. She holds a bachelor’s degree from Stanford and three graduate degrees from Yale (M.B.A., M.A., and M.Phil.)
Dennis Baron is a Professor Emeritus and Research Professor at the University of Illinois, serving in both the English and Linguistics Departments. He holds a Ph.D. from the University of Michigan and did his dissertation on “historical aspects of the English language.” In addition to his scholarly publications, he writes frequently on language and technology issues in the news, and his essays have appeared in the New York Times, the Washington Post, the Chicago Tribune, and many other papers.
John Donohue is a law professor at Stanford Law School. He holds a law degree from Harvard and a Ph.D. in economics from Yale. He teaches a course on empirical law and economics issues involving crime and criminal justice and has “published extensively” on the impact of gun regulation (or the lack thereof) on crime.
Randolph Roth is a professor of history and sociology at The Ohio State University. He has a B.A. in history from Stanford and Ph.D. in history from Yale. He teaches and researches with a primary focus on “criminology and the history of crime.”
Robert Spitzer is a professor of political science at the State University of New York at Cortland. He is currently teaching at William and Mary Law School. He has a Ph.D. in government from Cornell and has written extensively on American politics and gun policy. Professor Spitzer’s “expertise includes the history of gun laws, gun policy in American politics, and related historical, legal, political, and criminological issues.”
The State sought to introduce Allen’s testimony on “the number of rounds of ammunition fired by individuals using a gun in real-life self-defense” and “the outcomes when large-capacity magazines are used in public mass shootings, including the associated number of casualties.”
Allen analyzed more than 736 incidents in the NRA Armed Citizen database and 200 news stories from a random sample of 4,800 detailing incidents of self-defense and found that “it is extremely rare for a person . . . to fire more than 10 rounds [when using a firearm in self-defense].” Her research revealed only two incidents “where more than 10 rounds were used.”
Allen also analyzed roughly 200 mass shootings from four different sources between 1982 and 2022 and found that “(1) large-capacity magazines are often used in mass shootings; (2) both injuries and fatalities were higher in mass shootings that involved large-capacity magazines than in other mass shootings; (3) it is common for offenders to fire more than 10 rounds when using a large-capacity magazine in mass shootings; and (4) the majority of guns used in mass shootings were obtained legally.”
The Court held that her expert testimony made a “fact that is of consequence to the determination of the action” – namely, how LCMs are used – “more or less probable than it would be without” her testimony. Moreover, the underlying sources of Allen’s analysis – NRA data and news reports – are the kind that an expert would “reasonably rely” upon in forming an opinion on the subject.
Dennis Baron
Baron would testify that “during the Founding Era and the Reconstruction Era, ‘arms’ was used as a general term for weapons . . . but did not include ammunition [or] ammunition containers.” This is based on analysis of broader phrases such as “arms and accoutrements” which, in Baron’s opinion, were used to specify items (accoutrements) other than firearms themselves. Baron would also testify that he has found “no lexical evidence that either repeater firearms or repeater air guns were used as military weapons in England or America in the Founding Era, or that they were used as weapons of personal self-defense at that time.”
Baron’s analysis of the historical understanding of the term “arms” is relevant to determining whether the government’s regulation covers conduct protected by the Second Amendment. Resolution of that issue requires evaluating whether the restricted items – LCMs, in this case – qualify as “arms” under the Second Amendment. The Court held that Baron’s research is relevant to determining whether the regulation covers protected conduct requires textual analysis.
Plaintiffs stated that there is no way to use a firearm without ammunition, rendering magazines integral to “arms” within the meaning of the Second Amendment, but the fact that having some magazine may be crucial to keeping and using a firearm says nothing about whether governments may impose outer limits on those magazines, which is the question before the Court. Baron’s understanding of the historical context of these terms is relevant to this determination.
John Donohue
Donohue would testify that “restrictions on the size of large-capacity magazines . . . can be expected to reduce deaths and injury from gun violence.” He would also testify that “substantial empirical evidence illustrates that waiting periods prior to the purchase of weapons . . . will reduce suicides – particularly among young adults – and would be expected to reduce the risk of . . . enraged individuals buying firearms on the way to commit mass violence.” Finally, Donohue reported that restrictions on LCMs generally have “little or no effect on the ability of individuals to possess weapons for self-defense,” but “should have” a mitigating effect upon mass violence.
Donohue stated that “the problem of public mass shootings in the United States is a serious and worsening national problem.” He added that governments “began responding to this growing menace with . . . restrictions on the type of weaponry that facilitated mass shootings.”
Donohue’s declaration goes directly to the question of whether mass shootings are a social problem addressed by previous generations, or whether they are a novel challenge requiring legislative innovation.
This is a substantial consideration undergirding the historical analysis pursuant to Bruen and is therefore relevant to the case. The Court held that Donohue’s causal claims are not solely applicable to interest balancing frameworks. Empirical research on gun regulation and violence rates is relevant to the question of whether societal problems are new, and whether they correspondingly mandate new solutions.
Plaintiffs correctly asserted that “reasoning by analogy” from a contemporary firearm regulation to historical regulation is a “commonplace task” for a lawyer or judge. But reasoning by analogy requires an analog. That is what Donohue’s testimony purports to provide.
Randolph Roth
Randolph Roth would testify that increased American homicide rates correlate with “political instability, a loss of trust in government and political leaders, a loss of fellow feeling among citizens, and a lack of faith in the justice of the social hierarchy.” He would also testify that “the availability of guns,” especially “rapid-fire semiautomatic weapons and extended magazines in the late twentieth century, have pushed the homicide rate in the United States well beyond what it would otherwise have been.” Roth also wished to address colonial firearm restrictions and the gradual development of firearm regulations.
The Court held that Roth’s declaration demonstrated expertise in the history of violent crime and the relationship between “extended magazines” and the American homicide rate.
Plaintiffs asserted that Roth’s testimony focused primarily on the rise in violence stemming from “breechloading” guns, and that his declaration failed to evince a “dramatic technological change” or “unprecedented societal concern.” The Court disagreed because Roth’s declaration traced homicide and mass killing rates as compared to advancing gun technology, and concluded that the advent of submachine guns led to increased threats to “public safety” and governmental regulation.
Robert Spitzer
Spitzer’s declaration stated that “[t]he current controversy surrounding legislative efforts to restrict large capacity magazines (LCMs) would seem to be a purely contemporary matter, responding to the modern phenomenon of mass shootings.” He would testify to the prevalence of assault weapon and LCM restrictions around the country. He would also state that “restrictions on LCMs are historically grounded.”
With regard to waiting periods, Spitzer would testify that three features of the contemporary gun purchasing landscape explain the rise of gun purchase waiting periods. First, the rise of “mass production techniques” and “[r]paid, convenient, gun sales processes” are relatively new. Second, “no organized system of gun background checking could feasibly exist until the modern era.” And finally, “homicide rates in the colonies and early Federal era were generally low, and when homicides occurred, guns were seldom used because of the time involved in loading them, their unreliability, and (especially for pistols) their inaccuracy.” Additionally, Spitzer would testify that there are “similar, analogous historical gun laws” notwithstanding the lack of statutory waiting periods, such as “laws regulating weapons and intoxication, and weapons licensing laws.”
The Court held that Spitzer’s proposed testimony was relevant considering analysis of the history of political response to gun-related problems is central to the Court’s mandate in this case.
Rule 403 Objection
Plaintiffs stated that the Court should exclude the State’s expert testimony as “more prejudicial than probative” under Federal Rule of Evidence 403. Plaintiffs have not supported this contention with any detail, so that request is denied. Additionally, because the Court concludes that the State’s experts are admissible, it need not hold aDaubert hearing.
Held
The Court denied the Plaintiffs’ motion to exclude the State’s expert witnesses Lucy Allen, Dennis Baron, John Donohue, Randolph Roth, Robert Spitzer.
Key Takeaways:
The Court refrained from excluding Allen’s testimony on hearsay grounds because if expert testimony drawing statistical conclusions based upon database records were to be excluded as hearsay, nearly all expert testimony would be excluded.
Baron’s analysis of the historical understanding of the term “arms” is relevant considering the fact that having some magazine may be crucial to keeping and using a firearm says nothing about whether governments may impose outer limits on those magazines, which is the question before the Court.
Analysis of the history of political response to gun-related problems is central to the Court’s mandate in this case. Spitzer’s testimony deals with the history of American gun regulation, which is a verifiable issue of fact material to this litigation.
The risk of prejudice from overly broad testimony is substantially reduced because the Court is the finder of fact at this stage of litigation.
Case Details:
Case Caption:
Vermont Federation Of Sportsmen’s Clubs Et Al V. Birmingham Et Al
