This is Bloomberg Law with June Brusso from Bloomberg Radio. It was another victory for gun control advocates at the Fourth Circuit on Friday, as the full Court rule that Maryland's gun licensing scheme is constitutional and by an overwhelming vote of fourteen to two. The gun control measure requires applicants to submit fingerprints for a background investigation, complete a four hour safety training course, and wait up to thirty
days to get approval before continuing the process. More than forty other states have similar so called shall issue licensing laws, under which there's no discretion to deny a handgun license to anyone who meets the statutory requirements. Joining me is an expert in the Second Amendment, John Donahue, a professor at Stanford Law School. It's difficult to keep track of all the Second cases in the courts these days.
Well, of course, the Supreme Court seems to be trying to almost deregulate all issues of gun safety, and this has become like a snowball going downhill where the gun rights groups keep insisting that they need more and more freedom to pursue you whatever purchase they want at almost whatever age. These guns can be purchased and regardless of
the fletality of the weapons. And so it's really almost remarkable to me to see things that a few years ago almost everyone would consider as unassailable as necessary gun safety measures are now being challenged in court.
So last Friday, the full Fourth Circuit so on Bank meeting, all the judges reversed the decision of a panel last year which had voted two to one that the law violated the Second Amendment. And it was a fourteen into two decision reversing that panel and finding the law constitutional. Will you explain the majority's reasoning in the case.
So essentially, the plaintiffs in that case, who were challenging the regulations in Maryland, were saying that this was depriving them of their immediate ability to access guns. They want to be able to walk into a store and you know, just walk out with a gun, and this was imposing
a licensing requirement. And essentially what the court said is, if you look to the concerns expressed by the US Supreme Court, if you have a licensing scenario that doesn't involve you know, burdensome delays in access to weaponry, that should be presumptively permissible. And so that was the language that the Court used in saying that these shall issue requirements comported with the standards that the US Supreme Court has set for the requirements of the Second Amendment.
The majority they cited a footnote in the Supreme Court's Ruined decision that said, quote, nothing in our analysis shall be interpreted to suggest the unconstitutionality of the forty three states shall issue licensing regimes. In light of that footnote, how did the two judges on the first panel come out against this shall issue law because it seems pretty clear.
Yeah, well, there's always a pathway to complicate Second Amendments decisions. What happened there was the Court said that footnote that you just alluded to only dealt with shall issue laws dealing with the right to carry guns, while the regulation at issue in the current case that we're talking about dealt with access to possess guns in the first instance.
And so they were trying to draw distinction saying that you have greater rights to get immediate access to guns that you're going to be taking into your own home as opposed to guns that you're going to be carrying outside the home. And this court said, no, that distinction is irrelevant as long as it's a non discretionary judgment of the administrators of the law. These sort of shallish your requirements are acceptable in either domain.
Maybe we should step back for a minute. And since you know, the Bruin case seems to be causing a lot of confusion in the lower courts, explain what the tests set out in the Bruin case in the majority opinion written by Clarence Thomas.
So what Ruin said which has created an enormous, you know, chaos literally among courts all across the country, is it seemed to suggest if anything in any way infringes on access to guns or even accessories to guns, then a burden is then imposed on the government to come forward and assert that there were similar regulations in place in seventeen ninety one when the Second Amendment was adopted, or
maybe sometime close to that. And of course, since the world has changed enormously in seventeen ninety one, the legality of weapons is vastly greater. The threats of mass shootings, which was nonexistent in seventeen ninety one, is very real today.
It is sort of a nonsensical decision, but that's what the Court said, and brew In and many courts have felt very constrained by that language, even though more recently, with the Rashimi decision of just a couple of months ago, the Supreme Court seemed to be signaling that they're not going to be invoking the Bruin standard as aggressively as many of the judges who decided cases over the last two years since Brune was decided have done.
And just to explain, Rahemi was a June decision by the Supreme Court upholding a federal law that bars firearm possession by people under domestic violence restraining orders. And the vote was eight to one, with Justice Clarence Thomas the loan dissenter. Turning back to the Friday Fourth Circuit decision, which is another victory for gun control advocates in the
Fourth Circuit, it's the third on bank decision upholding firearms laws. Recently, one upheld regulations for assault rifles, another upheld of federal law criminalizing guns without serial numbers. And now this shall issue tell us about the decision upholding regulations for assault rifles.
So this was the decision authored by Judge Harvey Wilkinson, very conservative Reagan appointed judge who I should note was very critical of the Heller decision when it was first handed down. Judge Wilkinson wrote a very condemning article of the wisdom of the Heller decision. So in some sense he is continuing to express his concerns about the Second Amendment jurisprudence that the Court has embarked upon since the
Heller decision was decided in two thousand and eight. And essentially he said that weapons such as the assault rifles that were banned by the Maryland law are not protected by the Second Amendment. You do not have a constitutional right to have a weapon of that level of lethality. And I think in terms of wise public policy, that's
unassailably true. If states like California, New York, Massachusetts, Connecticut, and Maryland wants to protect their citizens from the dangers of assault weapons, it certainly seems wise policy to allow them to do so. So.
The Fourth Circuit has fifteen active judges, nine appointed by Democrats and six appointed by Republicans. The two judges who voted against the law in the first case we were talking about Republican appointees is it surprising that so many Republican appointees are agreeing with these gun control laws.
Yeah, well, you do have a little bit of a split, because you know, twenty years ago, Republicans were very pro gun safety. You know, Reagan of course endorsed the gout aal assault weapon ban, He endorsed the Brady Bill. He's as governor of California put into place restrictions on carrying of guns. So, you know, even Reagan, who was in some sense, you know, the idol of conservative Republicans, was very, very strongly in favor of gun safety regulation. But there
has been this shift in the party. So some of the older judges, like Judge Wilkinson, continued to conform to earlier Republican notions about the need for protecting the citizenry. But the newer cadre of Republican judges, many of whom were appointed by President Trump, have taken on a very macho posturing that the stronger the Second Amendments is, the
more they're conforming to constitutional dictates. And even though that's a very controversial position from a legal standpoint, it does seem to be a very prevalent view among younger Republican judges.
What's your opinion about the constitutionality of the way the Supreme Court has been expanding gun rights.
Well, I do think Bruin will go down in history as one of the most poorly reasoned and really absurd decisions handed down by the United States Supreme Court. You know there over the years. The dred Scott case is obviously something that stands out as a horrible decision, and Bruin is definitely up there. It really makes literally do sense to constrain government policy today against threats that were
completely inconceivable in seventeen ninety one. I still remember one case that I worked on involving a mass shooting in Sutherland Springs, Texas, where a guy stood outside a church fired two hundred and fifty four bullets through the walls of the church and killed twenty six people inside the church. This was November twenty seventeen, and that would not be
at all possible in seventeen ninety one. There was no weapon I could shoot through walls that people were carrying around and could kill twenty six people back in seventeen ninety one. So to look back to what the regulatory apparatus was at the time of the adoption of the Second Amendment really is nonsensical given the very different threats, and weaponry is getting more lethal of course all the time,
while the history stays exactly the thing. So this mismatch between the growing lethality of weaponry and the history of Second Amendment regulation really renders the Brewing decision, I think an incoherent judicial standard, which I think you started to get a sense even the Supreme Court realized their mistake in their effort to cut back a little bit in the Ratheemi decision.
So in the Rahemi decision in a concurring opinion, just as Katanji Brown Jackson quoted a dozen lower court opinions complaining that judges can't figure out how Brewin is supposed to work. Shouldn't the Court have taken that opportunity in Rahemi to set the standard out better, or you know, to rework breugh In in some way because the confusion continues.
Oh yeah, it's I mean, it's disgraceful and embarrassing for the Supreme Court that they have allowed this confusion to arise. And you know, if you look across some of the articulated decisions of courts across the country explicitly condemning the Court and saying, you know, we're quite frankly afraid of what you're doing. It's almost unheard of in American history, the widespread judicial you know, astonishment at the lack of wisdom that the Supreme Court seems to be engaging in.
Coming up next on the Bloomberg Lawn Show, I'll continue this conversation with Stanford law professor John Donahue, and we'll talk about a shocking decision from a Kansas judge, the first to find the federal ban on machine guns to be unconstitutional. I'm June Grosso and you're listening to Bloomberg.
It's a decision that's shocking on many levels. In a first, a federal judge in Kansas has found that the federal ban on machine guns is unconstitutional and tossed out two machine gun possession charges against a twenty two year old man, which JAW Judge John Broomes, a Trump appointee, wrote the court that the Second Amendment applies to the weapons charged because they are bearable arms within the original meaning of
the Amendment. The judge pointed out that prosecutors couldn't find a historical analog, and that there were no laws similar to the modern day ban on machine guns either in eighteenth century England or during the period around America's founding. Of course, the obvious reason for that is that the machine gun wasn't invented until eighteen eighty four. I've been talking to Professor John Donahue of Stanford Law School. So, John, the judge basically found you have a Second Amendment right
to own a machine gun. How did he come up with that conclusion.
Well, it's a terrible decision in every respect, except the only thing that you can say about it is it's not an absurd decision if you believe what the court said it Brewin the Brewing decision was so nonsensical it opened up the ability for plants all across the country to challenge every single conceivable gun safety measure that's been
in existence, no matter how long. You know, we're talking about ninety years ago this federal law went into effect, and the aftermass of you know, the Tommy gun episodes of people getting massacred all across the country during Prohibition. So this machine gun van seems tolly unassailable in the minds of almost every judge. But after Bruin, it became, you know, a clear pathway for attacks and literally every
other gun safety measure. So it was an embarrassment for the judge that he went down this path, but at least he can say, look, I was being faithful to what the Supreme Court did in Brewing and making this decision.
It really was an appalling decision. I think that the Supreme Court will realize that they will look so bad if this were to be sustained, when you know people are going to be mowed down in the street app extreme levels that they will not want to have that on their plate, and they will not support this decision. But it does mean they're going to have to cut back on the language that they endorsed in Ruined.
So this will go to the Tenth Circuit, which is liberal leaning. Democratic appointees outnumber Republicans by seven to five. Does it seem likely to you that the Tenth Circuit will overturn this judge's decision?
I think though. You know the problem is that many of the Republican judges think the way that I can make a name for myself, you know, be the hero in the conservative circles that I dwell in now and maybe get elevated to a higher court is to take the most extreme possible Second Amendment interpretation that I can find, And of course it's helped Brett Tavanaugh make it to the Supreme Court. He took some the extreme positions when he was a lower court judge and encouraged the NRA
to push for his elevation by Donald Trump. And the judge in Kansas might have been taking along these same lines. But if there are enough Democratic members on the panel, and of course it doesn't necessarily have to go to an non bossed decision, so you could get you know, two or three Democratic judges on a panel exsemination. So
it's unclear exactly what would happen. But this decision I think will be such a bad case in the mouths of so many judges that I think it will be overturned ultimately at the circuit court level, and the Supreme Court would probably not want to have this one come back to them.
Does Bruin make all federal gun control laws subject to challenge?
Yes, I mean it's an absurd decision because what it says is if there's any way in which someone can argue that the particular measure infringes on, you know, the ability to get a gun, or even something related to a gun, like a magazine that enters into a gun. Then it requires the government to come forward with a strong and compelling argument that there was a historical tradition
of the same type of gun regulation. And you know, obviously there were no high capacity magazines in seventeen ninety one, so there were no such restrictions. And you know, there were no restrictions on people who battered their wives and keep them from getting guns at seventeen ninety one. So that's what led the Fifth Circuit to say that the federal prohibition gun carrying by those subjects to a domestic
violence restraining order was unconstitutional. Luckily, that part at least was overturned in Rahimi, But even Rahimi could have gone much farther in trying to cut back on the excesses that has invited.
As far as the Fourth Circuit's decision upholding the Maryland assault weapons ban, the Third Circuit in the Seventh Circuit have also found such restrictions aren't prohibited under the Bruant approach, and the First Circuit has upheld a large capacity magazine ban, have any circuit courts ruled against assault weapons bans.
There has been no such decision. On the other hand, Judge Kavanaugh, when he was on the DC Circuit, had written that the DCSOL weapon band was unconstitutional. So we know that there's at least one person on the three court who believed that, and I'm sure that Alito and Thomas would follow that particular path as well. The interesting thing is that the Fifth Circuit has shown this enormous, super zealous attachment to the most extreme version of the
Second Amendment. But this issue can't come up in the Fifth Circuit because no assault weapon ban exists in the Fifth Circuit. So all of the states that have a saw weapon bans outside of the Fifth Circuit, clearly, if there were any such ban in the Fifth Circuit, they would render that decision. But the already conservative nature of those legislatures has preempted that decision from coming up before the Fifth Circuit.
It's so amazing to me that in Bruin that the you know, the five justices signed on to this test that Thomas laid out. It sounded absurd upon first hearing, and it's proven to be absurd, as the lower courts try to make heads or tails of it.
Yeah, it is absurd. You know, some of these judges of the sixth Conservatives are sort of shall we say, wacky zellets. But even Robert, who at least was a moderate Zellate, you know, has embarrassed himself enormously by signing his name on the Brilling decision. You know, this is something we will live in infamy for joining such an absurd decision. And at some point this decision will be overturned.
It's going to take a while, obviously, either an expansion of the US Supreme Court or just many years until the composition of the court changes. It's hard to imagine that the sid Zealots will change their mind. But you know, if we get enough matt killing who even they might realize the folly of the Brillain decision.
Thanks so much for your insights, John, that's Professor John Donahue of Stanford Law School.
Mister Girardi was no champion of justice. In fact, he was a perpetrator of injustice, victimizing his own clients when they were most vulnerable and most need.
Tom Girardi has gone from famous legal heavyweight to disgrace disbarred lawyer to convicted felon. Girardi was catapulted into the national limelight after the two thousand Oscar winning movie Aaron Brockovich showcased his role in getting a more than three hundred million dollars settlement from PG and E for poisoning a California town's drinking water.
In the interest of putting this whole thing to rest, PG and He is willing to offer the Jensens two hundred and fifty thousand dollars for their own two hundred and fifty thousand in terms of land value out in Hinckley. Mister Masery, we feel that's a more than fair price.
How About in terms of medical expenses, two hundred and fifty thousand isn't going to come close to what this family is going to have to spend on doctors.
He was hailed as a pioneer of toxic tort litigation, known for getting massive settlements for his clients. This season on The Real Housewives of Beverly Hills, and his fame was enhanced as the husband bank rolling the extravagant lifestyle of one of the Real Housewives of Beverly Hills. His wife, Erica Girardi, I'm.
An enigma wrapped in a riddle and cash.
But US attorney Martina Strada says Girardi funded that extravagance by embezzling tens of millions of dollars from his clients in a ten year Ponzi scheme, and.
Mister Giardi chose to take advantage those very same clients, those vulnerable people, the ones who'd gone through traumatic incidents, in order to enrich himself.
A Los Angeles jury agreed and convicted Girardi of four counts of wire fraud. So, now, at age eighty five and suffering from dementia, the one's high powered lawyer is facing jail time. Joining me is Bloomberg Law correspondent Maya Spodo, who covered the trial. Maya, how did the prosecution present its case against Girardi?
So the prosecution's case started rooted in the testimonies of these clients, who's missing funds made up the backbone of the charges against Girardi. And so the first witness we
heard from was Joseph Rugomez. His home exploded and his body was covered in burns, and his girlfriend died in the explosion, and so we saw him limp up to the witness stand and explain how Girardi used these excuses such as a fake six point five percent interest accruing savings account and the sake excuse that he needed approval from a judge to justify stalling these payments to Rugoma. And we heard these excuses get echoed throughout the remaining
clients who testified these excuses became ridiculous. There was one excuse that Girardi used where he said he was having the funds held up because he was working on a tax issue which would tax women more than men on certain personal injury settlements and he needed to work sat out with the irs. And even a lawyer at the firm who was freshly out of law school and had just passed the bar spotted that excuse and said that
makes no sense. And so we started the case hearing about these excuses and the pain that they caused for clients. And then the prosecutors presented their detailed path where they followed the money, and we heard from the federal government on what these client trust bake accounts really looked like and where the funds were going. So that's how we got into more of the lavish lifestyle part. Of the case.
Fans of the Real Housewives know about that extravagant lifestyle, how much did the jury learn about it?
Sure saw so much money being used to purchase different categories of luxury items, such as two private jets already purchased expensive jewelry. We saw a check written directly out of one of the client trust accounts for seven hundred and fifty thousand dollars to pay for diamond earrings for his now exchanged wife, who's Eric Jane. We also saw how funds were taken from Gerardi Keith to pay for
Girardi's memberships and country clubs. One of the lawyers at the firm charged property taxes to his Girardi Keith American Express card. And we also heard details about the lavish parties that were hosted on the company's dime, which had
six figure entertainment budgets. There was a Super Bowl party where lawyers were given as goodie bags their own personal jerseys, and all of these parties were being hosted while some clients who were in immense pain still were not receiving all of the settlement funds that they were doe.
The testimony of the client victims was very emotional at times, tell us about the most compelling testimony.
So the one that I found most compelling, and also the first client witness that one of the jurors named when he spoke to report after the decision was Erica Saldana's. She showed up to court actually with COVID and had to testify remotely, but she was sobbing for much of her testimony. Had to push up her glasses twide away
her tears because she was crying so hard. Her very young son was immobilized after a drunk driver crashed into Saldana's car, and she turned to Gerardi Keis for representation, but she never received from the firm the entire amount of her settlement, which she needed to purchase an accessible home for her son, And so Saldana spoke of how she spent the last year of her son's life chasing down Girardi to ask for the money she needed, and at one point Girardi even called her while she was
in the hospital with her son and accused her of not being sympathetic to Girardi's own health issues he was having he said, eye cancer surgery, and she said, how can you accuse me of not being sympathetic to health issues.
My son is dying, And the jury heard Girardi's own voice in voicemail messages giving his clients these excuses.
Yes, one of the common refrains that he would say to clients was don't be bad to me. Don't be mad at me. I'm a good guy. He would tell clients, including Joe Rogomez, that he loved their family. This was one of the most important cases to him. He would, even into the late years of the firm, send these detailed messages where he got the facts of the case right. He knew who he was talking to, and he was just saying, please, you know, don't be mad at me.
The payments are coming later, here are the reasons why they're being held up.
So the prosecutor to say it was a Ponzi scheme, how did they show that?
They basically showed how they said clients three settlement funds were used to pay off Client two settlement funds which were used to pay off client one settlement funds, and they had an IRS agent present in a now of bank records from the firm's client trust accounts, which showed how the settlements from later in the twenty tens were used to pay a client whose settlement was made in twenty thirteen, and the firms client trust accounts are subject
to these rules that are very strict, where you can't commingle funds and you can't have a negative balance in the account, otherwise it would alert the state bar. But these transfers happened anyway.
The defense tried to shift the blame to Christopher Comone, the former chief financial officer of the law firm, saying he was the one responsible for the loss of client funds, not Girardi. He's going to be tried separately in January. Why didn't that defense work?
It wasn't successful because the prosecutors emphasized in closings that they have substantial evidence against Comone and that he is a co defendant in the case and he will see
his day in court. The defense spent a lot of time going through records of how Comone used Gerardi Keith's funds to pay essentially shell companies that were either companies where Kimone had a leadership role or he was closely affiliated with members of these companies, And they also described how he paid twenty thousand dollars a month from the firm to his then fiance. She testified, and he purchased
lavish trips for the two of them. And so the picture that the defense was trying to paint was that Chris Comone was basically taking advantage of Girardi's declining mental state and taking these funds out from under his nose. But the jury didn't ultimately.
Buy that Girardi is suffering from dementia and is currently living in the memory ward of a nursing home. So I was very surprised that he took the stand, was his testimony coherent.
Everyone in the audience was shocked. It was a surprise move. He got a on the stand, and at first it seemed like this was just something that has been programmed into him from years of being this formidable trial lawyer. He had all the instincts. He smiled at the jury, he addressed them when he spoke, He made jokes, he tried to banter with the prosecutor, but it became clear as he was speaking that he was getting some pretty
important facts wrong. He said that he thought that Gerardi Keith Law firm was still running when it closed down and went into bankruptcy. Several years ago, and he also said he didn't know his own lawyer's name and the exact quote. This was the last question that his defender asked him. Sam Croft said, Tom, what's my name? And Girardi said, I have no idea. That mean terrible. It's one of those.
Do you think his cognitive decline his dementia made him at all sympathetic.
It was hard to feel sympathy after all of the clients explained exactly how this death had had ruined their lives. I think that the defenders were leaning hard into the appeal to jurors who had family members with dementia, which my grandmother has dementia, so I was thinking of her. But he talked about how his mother, who was a lawyer too, had dementia for a couple of years and eventually had to hang up the hat. And he was very emotional as he was saying this during closing arguments.
But ultimately I don't think that that appeal worked. One thing that stood out to me during the trial was Girardi's appearance. He was wearing this gray blazer the whole time, and the blazer came in every day looking more crumpled. It seemed to me, and this is speculation, but it seemed like they had just thrown it into the washing machine every day, because it appeared to get smaller and more greased, and the lining was peeking out a lot
more toward the end of the trial. So they were definitely either purposefully or not leaning into that appeal just using Girardi's own appearance.
Did the prosecution acknowledge that Girardi has cognitive issues and how did they deal with it?
Yes, they said, and now it's pretty clear that he has cognitive issues. But it's twenty twenty four now, and he didn't conduct the scheme in twenty twenty four. It was from twenty ten to twenty twenty.
It was a twelve day trial and the jury came back with guilty verdicts on all counts after just four hours of deliberations. Did Girardi react when the verdict was read?
He did not react as it was read in any significant way. But after he was standing up from the table and walking out, he had this kind of smile on his face that we had seen throughout the trial, which I describe as kind of wax in, and he walked out pretty steadily. One of the report orders asked him if he had comment on the verdict, and he chuckled and he said no, no, And may.
You spoke to one of the jurors who said it wasn't a hard decision.
He said that the facts were all there. We asked him if anyone on the jury needed to be convinced, and he said no. He's not perhaps representative of the entire group of jurors, but he made it sound like there was very little resistance inside the room.
Did did jur say anything about the issue of Girardi's dementia.
The juror said that they were not convinced by his neurologist testimony. They said that she met him in twenty twenty one and didn't have enough information about the case and what happened from twenty ten to twenty twenty. The juror basically said, you know, it is clear that Girardi's mind isn't all there now, but it's twenty twenty four, it's years after what happened during the charged time period.
But she showed as brain scans, including one where in the late twenty tens, Girardi's hippocampus, which is very responsible for memory function, had atrophied significantly, and it was among the bottom percentiles for the size of that brain structure in people his age. But she did also at one point say that she couldn't determine whether that diagnosis that she gave him in twenty twenty one could cause her to determine that he wasn't capable of carrying out a fraud.
Maybe his cognitive decline will be a mitigating factor in his sentencing, though Girardi faces decades in prison when he's sentenced on December sixth, and the US attorney said the fact that he's older doesn't mean they won't seek prison time, so we'll have to see what prosecutors ask for. Thanks so much for coming on the show, Maya. That's Bloomberg Law correspondent Mayas Bodo, and that's it for this edition
of the bloomb Podcast. Remember you can always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast, Slash Law. I'm June Grosso and this is Bloomberg