Gadfly is Marty Aussenberg, a columnist for the weekly Memphis Flyer. Marty is a former SEC enforcement official, currently in private law practice in Memphis, Tennessee. (A full bio is below the fold.)
The man the Vice President shot last week said, during his remarks to the press upon leaving the hospital, that “we all assume some risk in what we do, no matter how careful we are,” the implication being that by going hunting he was assuming the risk that he would be shot by a fellow hunter. I understand the need for this die-hard Republican to be obsequious in the face (excuse the expression) of Cheney’s assault, but what I don’t understand is his utter mischaracterization, especially given his training as a lawyer, of a long-standing legal doctrine to justify that kind of brown-nosing.
The doctrine known as “assumption of the risk,” is a legal construct, established in the common (i.e.., court-made) law which says, in essence, that someone who is injured in an activity that is inherently dangerous can’t claim damages from being injured during that activity. So, for example, if you’re beaned by a foul ball that hits you while you’re a spectator at a baseball game, you’re SOL (another legal construct, loosely translated as “sadly out of luck”) as far as being able to sue anyone for your injuries. Similarly, if you’ve served honorably in the armed forces and decide to run for public office against a Republican opponent, you’re not going to be able to complain when s/he questions your service and suggests you were actually a coward, because being “Swift-boated” is just a risk you assume when you take on a Republican opponent.
There are many other things we do where we assume the risk of something bad happening. … continued below …
Running with the bulls in Pamplona, riding one of those “crotch rocket” motorcycles down a city street at 100 plus miles per hour, and jumping out of an airplane from 20,000 feet with nothing more than a few yards of silk to slow your fall all come immediately to mind. But there are some consequences of potentially risky activities we all undertake which we definitely do not assume the risk of. Food preparation, electricity and driving all involve elements of risk, but none of us assumes the risk of contracting salmonella from eating in a restaurant, being electrocuted by our computers or being run into by an 18-wheeler on the road. When any of those things happen, it’s not because of a risk we assumed, it’s because someone screwed up royally, which is what Mr. Cheney did when he shot Mr. Whittington.
In bending over backwards (or maybe forward) to kowtow to the Vice President, Mr. Whittington would have us believe that hunters assume the risk of being shot. Yes, hunting entails a certain amount of danger, if for no other reason than that lethal weapons are involved, but a steak knife is a lethal weapon, yet no one assumes the risk that they’ll be stabbed by one while having a steak dinner with friends. The worst a hunter anticipates is wetting himself because the zipper on his hunting garment jammed at an inopportune moment.
Strangely enough, statistics show that fewer people are injured in hunting accidents than in dozens of other activities, from taking a bath to playing golf. Now maybe it’s a different matter if one of your hunting companions is taking a potent mix of pharmaceuticals to keep his heart from stopping, has a history of alcohol abuse, and is willing to admit he only had “a beer” shortly before he slung his shotgun over his shoulder. If being shot while hunting were as risky as Mr. Whittington would have us believe, then hunting attire would be made with kevlar (which it isn’t), and hunters wouldn’t be able to get life insurance (which they can). No, the only risk Mr. Whittington assumed by hunting with Dick Cheney was that if he was shot, someone would try to blame him for it.
BIOGRAPHY:Mr. Aussenberg is an attorney practicing in his own firm in Memphis, Tennessee. He began his career in the private practice of law in Memphis after relocating from Washington, D.C., where he spent five years at the Securities and Exchange Commission as a Special Counsel and Trial Attorney in its Enforcement Division, during which time he handled or supervised the investigation and litigation of several significant cases involving insider trading, market manipulation, and management fraud. Prior to his stint at the S.E.C., he was an Assistant Attorney General with the Pennsylvania Department of Banking in Philadelphia and was the Attorney-In-Charge of Litigation for the Pennsylvania Securities Commission, where, in addition to representing that agency in numerous state trial and appellate courts, he successfully prosecuted the first case of criminal securities fraud in the state’s history.
Mr. Aussenberg’s private practice has focused primarily on investment, financial, corporate and business counseling, litigation and arbitration and regulatory proceedings. He has represented individual, institutional and governmental investors, as well as brokerage firms and individual brokers, in securities and commodities-related matters, S.E.C., NASD and state securities regulatory proceedings, and has represented parties in shareholder derivative, class action and multi-district litigation, as well as defending parties in securities, commodities, and other “white-collar” criminal cases.
Mr. Aussenberg received his J.D. degree from the University of Pittsburgh School of Law, and his B.A. degree in Honors Political Science from the University of Pittsburgh. Immediately following law school, he served as a Reginald Heber Smith Community Lawyer Fellow with the Delaware County Legal Assistance Association in Chester, Pennsylvania.
He is admitted to practice in Tennessee, Pennsylvania and the District of Columbia, before the United States Supreme Court, the Third and Sixth Circuit Courts of Appeals, and the United States Tax Court, as well as federal district courts in Tennessee, Arkansas, Mississippi and Louisiana. He is an arbitrator for the NASD, New York Stock Exchange and American Arbitration Association, has published articles (“Stockbroker Fraud: This Kind of Churning Doesn’t Make Butter”, Journal of the Tennessee Society of C.P.A.’s,; Newsletter of the Arkansas Society of C.P.A.’s; Hoosier Banker (Indiana Bankers Association), and been a featured speaker on a variety of topics at seminars in the United States and Canada, including: Municipal Treasurers Association of the United States and Canada, Ottawa, Canada; Government Finance Officers Association; National Institute of Municipal Law Officers, Washington, D.C. ; Tennessee Society of Certified Public Accountants, Memphis, TN; Tennessee Association of Public Accountants, Memphis, TN (1993)
Mr. Aussenberg has two children, a daughter who is a graduate of Columbia University and holds a Masters in Public Health from Johns Hopkins University and is currently a student at the University of Pittsburgh School of Law, and a son who is a graduate of Brown University and is working with a conservation organization in Marin County, California while he decides what to do with the rest of his life.
Mr. Aussenberg is an avid golfer whose only handicap is his game, an occasional trap shooter whose best competitive score was a 92, and an even less frequent jazz drummer.
