Neutral Expert Witnesses in Oregon District Court

A bias assertion of bias in Judge Karin J. Immergut’s recent opinion in Firearms Federation v. Kotek Oregon Alliance for Gun Safety raises a question. What makes an expert witness bias?

Immergut placed a lower weight on the expert testimony of Ashley Hlebinsky. The plaintiff’s witness is the former curator at the Cody Firearms Museum at the Buffalo Bill Center of the West and a current Senior Fellow at the University of Wyoming College of Law’s Firearms Research Center. Despite having hands-on knowledge of historical firearms and an M.A. in history, Immergut dismissed Hlebinsky for lacking “background and training as a historian,” having received awards from the Second Amendment Foundation, and “[p]erhaps most importantly … is married to” a man who derives his income from the firearms industry.

However, Immergut found: “[d]efendants’ experts come from neutral academic backgrounds and possess no economic interest in the sale of LCMs [large-capacity magazines].” “This Court finds the testimony of Defendants’ neutral historical experts to be significantly more credible—and entitled to more weight—than that of Ms. Hlebinsky.” Is having an academic background a predictor of greater objectivity?

Consider Robert Spitzer, the defense’s main witness, who has a Ph.D. in political science and is a professor emeritus at the State University of New York. Dr. Spitzer has been retained as an expert witness to defend many firearm restrictions. How neutral is he to the current Supreme Court precedent decided in New York State Rifle & Pistol Ass’n v. Bruen? Spitzer reacted to the Bruen decision with an article entitled “How the Supreme Court rewrote history to justify its flawed gun decision.” He said the Court’s conclusion that little evidence existed of an early American practice of regulating public carry of firearms meant “not only deliberately overlooking, but also actually contradicting that historical record.” In 2000 Spitzer wrote a law review article stating: “the Second Amendment pertains only to citizen service in a government-organized and regulated militia,” a view emphatically rejected by the Supreme Court in Heller. His article decried that law reviews were publishing too many articles supporting the individual rights view of the Amendment. Spitzer’s piece was published in a symposium issue of the Chicago-Kent Law Review featuring only authors with the collective-rights viewpoint. The issue was financed by the Joyce Foundation. The editor was paid $30,000 and each author got $5,000. Does Spitzer, as a professional witness, have no financial interest in advocating for only one side?

I don’t think either side’s witnesses were neutral. That’s not the problem. The way in which one witness was arbitrarily discounted by the judge as biased and that judge undeservedly privileged another as neutral is the bias we should be concerned with.

Eric Shierman lives in Salem and is the author of We were winning when I was there.