Amici Curiae: Still More Gun-Talk, Even as the NCAA Imposes Major Sanctions & Libor Scandal Banks Face Criminal Liability

Another Tragedy, Another Round of Debates on U.S. Gun Control Laws

At TheCourt.ca, we try and cover a diverse range of pertinent legal issues from one week to the next, taking care not to beat the same tired and dying horse. That being said however, whenever an issue keeps cropping up over and over, and constantly garners the attention of the masses, the media and the courts, it becomes hard to look away and carry on as usual. One such matter is that of gun issuance, usage and enforcement in North America.

Tragedy befell the town of Aurora, Colorado at midnight on July 20/21, 2012, when a gunman walked into the midnight premiere of the latest Batman movie, The Dark Knight Rises, and opened fire, killing 12 people and injuring 58 more. The mind-numbing senseless of the act is only heightened by the shocking discovery of the amounts of ammunition and weaponry that were found in the booby-trapped apartment of the 24-year old former neuroscience Ph.D. student and prime suspect, James Egan Holmes. In the days leading up to the trial, the circumstances surrounding the event have seen, among other things, the renewal of the gun-control debate in the U.S. Those for stricter laws have compared statistics between U.S. and Canada, leading to the “suggestive” conclusion that stricter gun control laws lead to lesser gun ownership among the general populace, which in turn leads to lesser gun violence. Obviously, this might not be the best time to make comparisons to Canada, since we are dealing with our own mass tragedies caused by gun violence.

Much has been said about Holmes’ possession of the sophisticated guns that were used in the massacre. While deeming his ownership to be legitimate, the media has also pointed to the fact that his mental state was called into question when he was rejected from a gun club that he applied to for membership, on account of his bizarre voicemail greeting that suggested an unstable frame of mind. However, as has been said in the media, gun control laws cannot control an alleged psychotic from committing mass murder. This may be true, but the fact remains that stricter laws would have prevented him from getting hold of the guns and the huge amounts of ammunition as easily as he did in the first place. The media has been provided with some details on Holmes’ massive collection of arsenal, and the debate has only intensified in the last few days. The cultural implications and the history of the debate, for instance, speak to a mistrust on both sides, implying that it is perhaps time to consider multiple voices and perspectives. In any case, the urgency of the matter might have something to do with the upcoming presidential elections, with many talking heads being prepared to wax eloquent on the subject. As if the reality check of the recent events hasn’t been enough, a disturbing trend has recently been reported in Colorado, where the applications for gun ownership went up by 43% in the space of the 4 days since the Colorado shooting. This not only speaks to the distrust the general public feels towards law enforcement, but it might also have been triggered by recent reports of citizen justice, as in the case of the geriatric Florida man who stopped a bank heist by shooting at the armed suspects with his own concealed gun. The message then, is quite clear: something needs to be done, and soon, because the public is getting impatient with the current regime of gun control. And the only thing worse than one loose cannon is several more of the same, each with their own sense of vigilante justice,  which can only lead to chaos of the worst kind.

Football Sanctions: The NCAA is the New Sheriff in Town

On Monday, the NCAA imposed unprecedented sanctions against Pennsylvania State University (“Penn State”), which Mark Emmert, NCAA President, says reflect “the magnitude of these terrible acts and will allow the rebuilding of the school’s athletic culture.” Despite imposing a $60 million sanction, a four-year football postseason ban, a recall  of all wins from 1998, a major reduction of athletic scholarships, placing the athletic department on probation for five years and forcing the program to work with an athletic-integrity monitor, the NCAA claims that the sanctions are not meant to be punitive. Instead they are seen to ensure that athletics are not elevated to the same pedestal the school placed them upon.

Last month, Jerry Sandusky was convicted on 45 counts of child sex abuse after jurors found him to be a “predatory pedophile.” Despite knowledge of Sandusky’s sexual misconduct with young boys in the locker room showers, Joe Paterno, the football team’s coach (who was, until Monday, was listed as the NCAA coach with the  “most winnings”) enabled his disgusting behaviour to continue. He and three other college officials helped conceal criminal acts for as long as 14 years. Essentially, they prioritized winning and the school’s football program over the safety of children.

According to an anonymous source, the Penn State Board of Trustees gathered on Wednesday to discuss whether the school’s president, Rodney Erickson, had the authority to agree to NCAA’s sanctions. Trustees have publicly expressed outrage that the a member of the board would enter into a consensual agreement without first discussing it with the board. David La Torre, Penn State spokesman, told the Associated Press that Erickson does in fact have the authority to act without approval from the entire board. He went on to say that the multiple year “death penalty” of a four year ban was also discussed as a potential sanction.

The sanctions will have greater financial impact on the school beyond the $60 million fine and related penalties. For instance, State Farm Insurance pulled its ads from Penn State’s football broadcasts, General Motors reevaluated its sponsorship deal, and Wall Street threatened to downgrade the school’s credit rating. On top of all this, with the loss of scholarships, the program will be crippled even further, as top notch high school students choose other, less tarnished programs that can provide them with more assistance.

The NCAA’s executive committee chair, Ed Ray, explained that the sanctions were justified under the NCAA’s bylaws with respect to integrity and ethical conduct. While celebrated for adequately demonizing the acts that went on at Penn State, they expose the organization to a breadth of criticism. As the Economist wrote on Tuesday, the NCAA’s jurisdiction has extended primarily over recruiting and eligibility. With these sanctions,  it has acted overnight (with the consent of the university) in “what it deems to be the best interest of college sports…. [and] the NCAA’s member universities could regret granting it such far-reaching authority if it deploys its new powers capriciously.”

A Signature Moment to Hold Big Banks Accountable?

The biggest banks in the world are being dragged through the trenches right now. It’s not as though they do not deserve it, though. Earlier this year, regulators discovered that employees at Barclays and a handful of other banks had been rigging the Libor, the London interbank offered rate. This is a measure of how much banks charge one another for loans, and helps determine the borrowing costs of a plethora of financial products, as Protess and Scott helpfully explain. A media uproar then ensued; people were frustrated, disappointed and angry, so decisive actions needed to be taken by regulators in both London and Washington.

This week it was revealed that the United States Department of Justice was planning to take those decisive actions – namely, building criminal cases against these banks. The government has seldom displayed such bloodthirst against bankers. Another reason why it was a somewhat surprising move is that Barclays had agreed to an enormous settlement – somewhere in the tunes of $450 million – just a few weeks ago.  But that deal does not shield the bank and its employees from criminal prosecution.

It will be a bumpy road ahead for the Department of Justice. It needs to prove that these executives and the men working under them, particularly traders, have committed fraud. Questions of jurisdiction can be settled rather quickly, as the Libor affects markets in the United States. But the gathering of evidence may be encumbered when they need to be collected across state boundaries. As with investigations into any big corporation, it will be enormously complex and can be drawn out for years and years. Unsurprisingly, these investigations usually end in settlements, not indictments.

Some wonder if it would be more fruitful to impose stricter rules for banks, rather than going through the painfully long litigation process. For example, there should be a ‘Chinese wall’ erected between traders and those individuals who deliver information used to set the Libor. This is why we have seen such pieces of legislation as the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub.L. 111-203 come into play in the last decade. It remains to be seen what real consequences have come out of that piece of legislation, or any other attempts to better regulate big banks. Based on an evaluation and understanding of these consequences, it might perhaps be worth exploring other paths.