On occasion, I’ve questioned the fact that journalists tend to be slightly less than accurate in reporting legal matters. It’s not that they’re bad people, necessarily, but that they just don’t know any better. Like most folks, they assume too much, apply their own sensibilities to things about which they know little to nothing, and then put it out there on their platform for all their readers to see. It’s not always pretty.
But ABC30 News’ Gene Haagenson doesn’t get the benefit of Hanlon’s Razor when he wrote his story about the 9th Circuit’s opinion that a medical marijuana user was precluded from purchasing a handgun. He was told.
My first reaction when Gene Haagenson called me from ABC30 news to ask about a Nevada case preventing a woman with a medical marijuana card from owning—note that I’m stating it as the question was originally put to me, not as it really was considered in the court—a gun was that it was unconstitutional.
I told Gene I had not heard of the case yet, but would check as soon as I got the opportunity. I was driving at the time, so I couldn’t even look anything up on the computer.
Reporters often call for a quote to fill out their story for three reasons. First, it takes up space, thus providing them with cheap filler to take up enough space to satisfy their boss. Second, it creates the appearance that the story is sound because someone with some actual basis of knowledge agrees with whatever the writer wants the story to say. And third, and most importantly, lawyers are usually willing to talk to them.
So Haagenson called Fresno criminal defense lawyer Rick Horowitz, who was an excellent choice. When it comes to legal issues like medical marijuana, Rick is exceptionally knowledgeable. For no better reason than to help Haagenson not make people stupider, Rick returned to his office, read the opinion carefully, and called Haagenson back.
Since then, I was able to locate, and read, the actual Ninth Circuit Court of Appeal opinion in the case.
Two things: you can’t really believe much of anything you see in the news anymore, and the opinion doesn’t say marijuana card holders cannot own a gun. That might be coming down the pike, but it’s not the holding of the opinion in Wilson v. Lynch.
Great news? Whereas Haagenson came to Rick with a mind full of mush, he now had the opportunity to have this opinion which, to the lay eye, was easily misunderstood, and thus would be sold to the public in such a way as to grossly misstate the holding as explained to him? Nope. Not quite.
Before I get into the opinion, though, I want to clean up a few things from Gene Haagenson’s story. If anyone listened to me, these mistakes would never be made in the first place. But I’m apparently not able to say the kind of sensational things—I tried, believe me—that will entertain the writer who is really only after the gist of what he thinks is a shocking story, anyway. And after today—after this blog post—I doubt I’ll ever have to worry about that writer calling me again, anyway.
While Rick explained it to him, he couldn’t understand it for him. And Haagenson wanted nothing to do with understanding it. He had a great narrative, that people who held medical marijuana ID cards would be denied their Second Amendment rights, and he was sticking with it, no matter how wrong it was.
What to do if you can’t get a lawyer to give you a quote consistent with the story you want to tell? But of course, turn to a physician for your legal analysis.
First, and foremost: doctors are doctors, and lawyers are lawyers. I know you’d think that the logical“law of identity” would make that pretty clear, but my law practice which I practice as a lawyer who studies law things and offers law-oriented advice, rather than trying to fix broken bones, or prescribe drugs, or diagnose illness as a doctor would do, tells me differently. Sadly, there are a lot of convicted felons in California who would not be convicted felons if they had not followed the legal advice given to them by their non-lawyer doctors.
Docs can be great people, very smart and really good physicians, but that doesn’t mean they know shit from shinola about law. Then again, why should they? They’re doctors.
But Dr. Brubaker is a doctor. Not a lawyer. And, as much as I hate to sound like I’m criticizing a man I like, I would suggest that you not follow Dr. Brubaker’s legal advice. (Because much of it, from what I have seen, is wrong.)
And you might want to believe me, because I am not a doctor: I’m a lawyer.
Maybe I need a new mug?
Yet, Haagenson’s story explains the 9th Circuit’s opinion through the thoughtful legal analysis of Dr. Brubaker rather than Rick Horowitz. What was wrong with that? How did Brubaker get it all screwed up? Rick explains the underlying opinion, and the law, so go there to get all your questions answered.
For the purposes of this post, the notable aspect of the story put out by ABC30 News’ Gene Haagenson is that he wanted a quote he could stick into his story to confirm the pre-determined narrative, and this damn lawyer went and told him he got it all wrong. So rather than reframe his story, shoot for a little legal accuracy so as to not make his readers stupider, Haagenson did the next best thing: find someone willing to say something consistent with the story he wanted to tell, even if it happened to be a doc rather than anyone with any qualifications to offer an opinion.
And that’s how Americans come to understand the law. And why we can’t have nice things.
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Thanks! At least I am no longer stupid about Gene Haagenson. I will add him to my list of reporters who are no longer trusted. And Gene, if you’re reading this, reporters like you are the reason that our lovely democracy doesn’t work very well. Some personal integrity from fools like you would be very nice!
If you were planning on just whittling away those individual rogue reporters who get the details wrong, hoping to be left with a core of highly professional journalists who can be trusted to get it right, I’m afraid I have some bad news.
So, Doctors are doctors and Lawyers are lawyers?
So Scott, does that mean, you’re not going to do my Back Surgery and maybe I should drop that Doctor handling my legal issues?
Not at all. But I don’t take insurance, so send your back surgery retainer ASAP.
jim ryan should have made his comment more generic. You’re different than most lawyers in this regard, either because you stayed at a Holiday Inn Express or because you’re married to a doctor. Both are fine qualifications.
It was a very nice Holiday Inn Express. I mean, *really* nice.
Thanks, Scott. I appreciate the shout-out, and the support.
I think Gene, from what I’ve heard, is probably largely a decent guy. But I was a bit peeved (as I wrote in my article) that I took the time to try to analyze the case for him, and then he didn’t even mention my name, let alone get things right.
Also, Dr. Brubaker—who I know not just because I considered retaining him on a case once as an expert, but because we’re fellow photographers, and I’ve been to his home to help him set up his printer—is, as I said, a very nice guy. But…well, I said what needed to be said about that in my article. I just want to reiterate that he’s a decent guy.
One thing that I’m personally much more interested in is, of course, seeing what happens with what I said at the very end of my article: will some court eventually decide that a felony is committed by anyone who smokes marijuana in a state where it would be legal for them to do so when at the same time, they happen to also possess a gun?
Since you covered that far better than I could, I left that piece to you.
What part of the reporting did Gene Get Wrong ?
Sure he left a hell of a lot shit out, & didn’t use Rick’s consultation as reference in the story.. but what did he get wrong ??
hell with the time he has, you assholes want a friggin law class given..
ok so, he’s referenced a Doc instead of a lawyer, it is in reference to a case before the 9th regarding a MEDICAL card.. holy shit, oh the outrage..
maybe just maybe he checked multiple & reputable sources, made a decision & ran with it..
Do you guys need a safe space because of your triggering ??.. sheesh
Rick’s goes on at length about what he got wrong. Would it help if he drew pictures in crayon?
In fairness, law is hard. Hard to write about, hard to understand when reading. But it’s the hard that makes the difference.
well, being a doctor is a tad hard too.. maybe even being a reporter isn’t easy.. with deadlines & all.. & limited time.. but hey..
Gene, got the Dr.’s opinion in the report, & even the fact that you can ‘own a gun’, you just can’t ‘buy a gun’.. which is correct.. as far as I could read.. (thankfully some of the opinion was written in a sharpie so that helped a bit..)
stop with the peacock feathers, you’re starting to look like college students..
One point you’re missing: lawyers don’t do surgeries (unless they are also trained and licensed surgeons); doctors should not be giving legal opinions (because, as Scott said, it’s hard, which is why doctors get it wrong, and people who listen to them often end up with felonies); reporters should not be spreading doctors’ legal opinions as if they were trustworthy.
Especially when the reporter can’t even get the simple facts right themselves.
Sorry If I got something wrong! It was not intentional. Not a deliberate attempt to craft a certain story line. Mr. Horowitz offered me his interpretation of the ruling over the phone, and it was about as clear as his posting here.
Yeah, that’s pretty unclear, Gene.
Maybe you didn’t understand me, but I broke down the opinion for you, and said why (contra Dr. Brubaker), it made sense based on the case law the court cited. And, as the most obvious error, I told you it was a Nevada case, but that the reasoning would seem to apply to California ID cards, not that the case involved a woman from California, or with a California card, as your story says.
I also pointed out to you that the case did not say that you could not own a gun if you used marijuana, but that I expected that would be the natural progression. I think my words were “I could see that coming next,” or something similar. As it turns out, after I talked to you, I did more research (because you’ll possibly remember I said these issues exist in some of my clients’ cases), and that’s when I came to the realization that the interpretation of 924(h) combined with the case you sort of wrote about would be a way of arguing, now, that you can’t own a gun while using marijuana.
Or did you not read the article I told you I would be posting later the same day we spoke at least three times on the phone?