Gun manufacturer liability
The Newtown lawsuit against Bushmaster
Prof. Nick Johnson (Fordham Law) takes it apart, at the Library of Law and Liberty.
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Lawsuit filed over Newtown murders
Story here. I really can't see it as filed in good faith. Apart from the Lawful Commerce in Firearms Act problem (a massive one), where is the negligence (selling a lawful rifle?), how do they solve proximate causation (intentional criminal misuse of a tool usually breaks the chain of cause), and after that they have to prove facts that aren't true -- that the AR-15 platform is unsuited for sporting use or self-defense. The lawsuit may be good for PR but this is the type of thing that risks a court awarding sanctions to the defendants.
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Brady Campaign sues ammo dealer, etc.
Story here. Brady will sue on behalf of the parents of a child killed in the Aurora CO shooting, against the dealer who sold the ammunition and some unnamed others.
I cannot figure this one out. First, the tort law is pretty clear that (with very narrow exceptions) a person does not have a duty to prevent someone else from committing a crime that harms someone else. Second, how can an ammunition dealer, of all people, be expected to know that a buyer whom he has never met plans on using the ammo in a crime? In other words, even if there was a legal duty, where is the negligence? Third, unless the killer bought all his ammo from that one dealer, how can the dealer be shown to have any involvement?
And to top it off... the murders were committed on July 20, 2012. From what I can see, Colorado has a two-year statute of limitations for personal injury. So the statute ran nearly two months ago. Oops. Now, Brady could contend that it's suing for a minor, and the statute of limitations doesn't begin to run until a minor's 18th birthday. BUT the minor died, and the article says the suit is actually brought on behalf of her parents (wrongful death statutes differ somewhat in this respect, in some the suit is brought on behalf of the decedent's estate, in some it's brought by the survivors in their own right).
It does sound like a civil action that is a sure loser, brought in hopes of gaining publicity. That of course runs a big risk of getting hit with sanctions.
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Court slaps sanctions on atty who sued gun maker
It's a 34 page scanned pdf, so it is both detailed and slow to download. Reading the earliest versions of what happened, or was alleged to have happened, I find them incomprehensible. Bullets coming out of the trigger guard or the side of the gun? Then he changes to an out-of-battery discharge, but even that doesn't hold up.
The judge doesn't fix a number, but orders the defense to file its documents on attorney fees (with a hint that they shouldn't be tempted to pad things out). I suspect this will be a VERY expensive mistake.
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5th Circuit rules no jurisdiction over Italian manufacturer
The ruling was that plaintiff had failed to establish either general or specific jurisdiction over the foreign company. Opinion, in pdf, here.
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IL Supreme Court on Lawful Protection of Commerce Act
PDF here. Adames v. Sheahan. UPDATE: this is strange. The link stopped working. I had a perfectly ordinary pdf in another window, so to test it I hit reload ... and it went blank, too.
Basically, a correctional officer kept a Beretta at home. His son got the gun (apparently despite being locked away) and thought that removing the magazine leaves it unloaded. He pulled the trigger with a round chambered and killed a friend.
Next of kin sued the government and Beretta, the latter because the gun didn't have a magazine disconnect safety and the loaded chamber indicator supposedly wasn't enough (I suspect the argument was it didn't have something saying "loaded chamber"), and on failure to warn.
The Illinois Supreme Court holds that the Protection of Lawful Commerce Act applies, and bars the suit since the suit is based on criminal misuse (negligent manslaughter). Plaintiff's arguments that doesn't apply because the shooter was adjudicated delinquent rather than convicted, that the adjudication doesn't count because it's unpublished, etc. are rejected.
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Supreme Court turns down Bloomberg suit appeal
Report here. The denial of cert. leaves in place rulings that dismissed NY City's suit against gun manufacturers.
Hat tip to reader Ambiguous Ambiguae...
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More on the Jack Weinstein gun lawsuits
Interesting story in The Daily Report. Judge Weinstein, US District Court, denied jury trial to one of the dealers sued by Bloomberg. To be precise, he allowedly only an "advisory jury." That's a procedure in judge-only trials (of which there are a few narrow classes), where the judge takes the jury's verdict as "advice" in the course of entering his own verdict.
Going on memory, I think Weinstein is dead wrong in denying a jury. His theory appears to that the suit is for abatement of a public nuisance, the only remedy sought is injunction, and under State law, injunction trials are judge-only.
BUT this is a Federal case, and the 7th Amendment provides "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved..." Nuisance is common law. As I recall, the courts assess the value of an injunction suit in terms of its money value, the dispute being whether you assess it by (a) its value to the plaintiff if he wins one, or (b) its cost to the defendant if he loses. I trust Bloomberg would not asset that if he wins the injunction would benefit NY by less than $20, and it's safe to say that the dealer's compliance cost would exceed $20. So the defendant dealer has not just a right, but a constitutional right, to a regular jury. Of course, Jack Weinstein is unlikely to allow a trifle like that to stand in his way.
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NYC lawsuit--very strange event
Judge Jack Weinstein forbids New York to call Mayor Bloomberg as a witness.
If the witness is willing to testify, a party wants to call him, and his testimony is relevant, it's pretty peculiar for a judge to bar it. I could see an argument that the subject of the testimony is irrelevant, but Weinstein says the city should call someone else to testify to it, so he can't see it as irrelevant. Maybe the Mayor didn't really want to testify, so Weinstein has been tipped to that. Or maybe it's just the judge running plaintiffs' case for them, as he has in the past. I heard from an attorney who'd defended on a gun lawsuit in this court, and at the end of plaintiff's case he moved for judgment as a matter of law, since they hadn't proven their claim. Weinstein said he agreed they hadn't proven it, but they could prove it if they were establish this, and that, and the other thing, and he would allow them to reopen their case to prove what he had just ruled would be sufficient!
Hat tip to reader Jack Anderson...
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Bloomberg lawsuit heading for trial
Story here.
Hat tip to reader William Taggart...
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Mayor Bloomberg has problems with 1st as well as the 2nd amendment
According to the New York Sun, Mayor Bloomberg has moved, in the suit against a GA gun dealer, to forbid the defense from mentioning the Second Amendment. As the paper notes, "While trials are often tightly choreographed, with lawyers routinely instructed to not tell certain facts to a jury, a gag order on a section of the Constitution would be an oddity."
I suppose we'll see if Hon. Jack Weinstein has problems with both amendments as well.
UPDATE: it's called "long arm jurisdiction." A very technical end of the law (took a case to the state Supreme Court on it once). Basically, you can sue a person or company where they reside, and also sue a company where it "does business," so to speak. If you go beyond that, it's a denial of due process. The question of how much contact the company has to have with a State is confused and confusing, even at the US Supreme Court level. But local courts of course want to assert jurisdiction (having locals sue out of Staters sounds like a great idea). In my case, it was product liability, a single action being dropped and firing. The mfr was in Italy. At the time the gun was sold, the mfr had no advertising in the US, no local company. Its sole contact had been to make one lot of arms, which an American importer based in Connecticut picked up in Italy and sold in the US. Twenty years later, one of them was dropped in AZ and fired, killing a local. How it got from CN to AZ was not determined; someone could have bought it back east and moved here.
AS Supremes held that the AZ courts had jurisdiction over the Italian manufacturer, and the US Supremes denied cert..
Purposeful availment--I forget how they dealt with that. Claimed to go with the Asahi plurality, using that standard, but then construed it to mean ... memory is faint, but it was something like: this was shipped to the US, a single-action is a Western looking gun and would be likely appeal to a person in a Western state such as AZ, aha, that's purposeful availment of AZ markets! The state Supremes were very pro-plaintiff then, which I didn't mind since I mostly do plaintiffs' work. The case was A. Uberti v. Leonardo, 181 Ariz. 565, 892 P.2d 1354 (1995).
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Circuit court tosses NYC suit
The 2nd Circuit has held that the NY City lawsuit must be dismissed. From the article, it sounds as if they rejected the antigun district judge, Jack Weinstein's approach that a suit based on state nuisance law wasn't covered by the Federal legislation.
Update: here's the the opinion in pdf.
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DC Circuit upholds dismissal of suit against gun makers
It's discussed at the Volokh Conspiracy.
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Bloomberg being sued
Story here. Bob Barr, as attorney for two of the gun dealers Bloomberg sued, counter-sued in local courts for defamation; the courts just denied Bloomberg's motion to dismiss and ordered him to sit for a deposition.
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City of Gary wins on appeal
Very brief news story here. It suggests that Gary, in its suit against gun manufacturers, argued the Protection of Lawful Commerce in Arms Act was unconstitutional (basis not stated).
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Weinstein lets NYC suits against dealers proceed
Not to say it shows a tiny bit of bias, but the AP release begains "A federal judge ruled Wednesday that more than a dozen out-of-state gun dealers have helped criminals terrorize New Yorkers and now must face the city in court."
UPDATE: how do all these suits wind up in front of Weinstein, when every federal district court I know of has random assignment of judges? I once talked to one of the manufacturer's defense lawyers, and he said that in one case they were served with the usual summons and complaint, but not with the cover sheet that has to be filed with them. When they did get the cover sheet, it turned out that plaintiffs' attorney had claimed (falsely) that Weinstein was already hearing a related case ("related" under the rules requires something more than "another case against a gun manufacturer"). The defense raised an objection, which Weinstein denied.
He told of some other wierdnesses in the case. E.g., at the end of plaintiffs' case, the defense moved to dismiss it as insufficient in a legal sense. The judge stated that yes, their legal theory was insufficient, but they could have gone ahead if they had proven a different theory, which he outlined, and then said he was going to permit them to reopen their case to prove the approach that he had set out.
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Reason on gun & product liability litigation
Walter Olson has "Dangerous When in Power: Does government protect us from hazardous products, or does it put us in harm's way?" in Reason Online. An interesting note:
"The resale of city-owned weaponry-police surplus, as well as guns seized from lawbreakers-is a prized cash cow for city administrations. New Orleans, for example, at the very moment of announcing its first-in-the-country suit against gunmakers, had just finished scoring one of the biggest gun-resale deals ever when it sold through a broker some 7,300 guns, including TEC-9s and various other semiautomatics whose importation and manufacture Congress had banned in 1994. Detroit unloaded a remarkable 13-plus tons of weaponry not long before filing its suit. ...Were the lawyers' theories to be taken seriously, the cities might have to worry about winding up in court as defendants, not plaintiffs."
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Lawsuit in Buford Furrow slayings
There's been a lawsuit filed against an FFL in connection with the 1999 serial killings of Buford Furrow in California. The press report isn't clear (it refers to failure to complete "federal registration" forms) but it sounds as if the allegation is that the FFL didn't fill out a 4473. Whether that means entirely failed, failed partially, and whether he ran a background check or not, isn't clear from the story.
7 years -- I wonder what angle they plan to take on the statute of limitations? That's 2 years in most states, 3 in some, as I recollect. The story suggests that they may argue that it runs from discovery of the wrongful action, and they only recently discovered the 4473 issue.
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Gary, IN city lawsuit allowed to proceed
A state trial court has allowed the Gary, Indiana suit against six FFLs to proceed, over a motion to dismiss based on the Protection of Lawful Commerce in Firearms Act. It's hard to make much assessment, based on a news article, which is itself largely a Brady Campaign release, but it sounds as if the key was that the suit is against six specific dealers who were accused of straw man sales, rather than one of those against dealers, mfrs, etc., based on general claims that they're suable because criminals used guns they handled.
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Bloomberg lawsuits beginning to look like a fiasco
The New York Sun has the story. A second dealer has filed a counter-suit in his home state, a NY dealer they charged with criminal offenses had to be let off with disorderly conduct (in most states, about a minor a misdemeanor as they have), they seized guns from that dealer but had to return them, the city has settled with two on terms that have them audited by a special master (whom the city has to pay)... oh, and a third dealer now says he's going to sue.
Bloomberg is trying to make the best of it, saying that the plea to disorderly conduct (what you'd get for being a noisy drunk) sends a "strong message" about how vigorously he's enforcing gun laws.
[Hat tip to Budd Schroeder]
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More on NYC gun settlement
SayUncle has more details, and a commentary.
It sounds as if the settlement is: the gun shops agree to better train their salespeople, and to be monitored, and plaintiff NYC agrees to pay for it all! Sounds like quite a settlement ... for the defense. Normally you're happy to walk away--let alone make the plaintiff pay to give your guy something. Monitoring the records -- sure, nothing like free audits to protect against the risk of license revocation.
As SayUncle observes, "So, the city of New York is going to monitor (and pay for it) two small pawn shops in Georgia? Doesn’t sound like much to me other than a symbolic victory, which may be all they’re after." It sounds to me as if NYC sued, and then bailed out before anyone moved to dismiss.
Via the Bitchgirls.
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DC gun lawsuit tossed
A DC district court has dismissed the DC lawsuit against gun mfrs.
Interesting to read the parts of the opinion quoted. The judge plainly has little use for gun or gunmakers, but the integrity to reach a result contrary to the world as she'd like it to be. And anyone who thinks that level of integrity is standard issue hasn't spent a lot of time in court!
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Take on Bloomburg's gun suits
Gun Law News has a very good analysis of the effect of the Protection of Lawful Commerce in Firearms Act on the latest NYC suits.
I'd add:
1. I doubt that NYC meets the requirement that the plaintiff be directly injured by any alleged violation. At most, they claim to have paid someone else's bills.
2. There may be dormant commerce clause problems with a civil suit, against an out of state company, on the claim it sold to some persons in its state (I assume the alleged straw sales were to residents) and should be liable in NY for a transaction in, say, PA, on the theory that someone else might thereafter use a gun illegally in NY.
3. The suit seem pretty flimsy to me. Why bring them? I can only think of (a) publicity; (b) try to drive up insurance rates for ALL dealers, and hence get rid of them or (c) the fix is in.
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Another municipal lawsuit
New York City just filed one, against out of state FFLs, alleging that they were allowing straw purchases.
If they can prove that, they can probably invoke the exception to the gun mfrs' liability protection. I still see major barriers in terms of (a) duty (b) causation and (c) damages. Not to mention (d), standing. I mean -- if you can prove a dealer on a certain day was willing to make a strawman sale, does that prove he ever did so in the past? How many times? What crimes were caused or not caused?
As far as standing goes -- anyone who's ever tried to represent a cop or fireman suing a private individual for negligence that resulted in on-duty injuries runs afoul of the "fireman's rule" -- they can't sue, because running those rirks are part of their job. A city as a government is, I'd think, in an even weaker position.
UPDATE: most of the stories so far have just been paraphrases of the NYC press release. Here's one with a bit of detail. One interesting question is which judge got the case. If Jack Weinstein -- then the fix is in.
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Harvard Law Rev. on Firearm Mfrs Protection Act
Don Kates pointed out at recent Note in the April 2006 Harvard Law Review. (pdf file--down at bottom of cover). It discusses enactment of the Protection of Lawful Commerce in Arms Act, and in particular how the Act's purposes clause (which invoked the 14th Amendment as protecting an individual right to arms, might play an advisory role in any Supreme Court decision on the right to arms.
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Gun Mfrs protection act forces dismissal of suit
In a 58-page opinion, a California federal district court has become the first to invoke the Act in dismissing a lawsuit. NSSF press release here.
The judge had earlier dismissed the suit on other grounds, but the Ninth Circuit (Circus?) reversed him.
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Judge Weinstein lets suit against gun mfr proceed
The NY Times reports that Judge Weinstein has refused to dismiss NY City's suit against gun manufacturers. (BTW, as far as bias goes, I believe he's the one who, in one trial against a gun mfr, agreed that plaintiffs had not proven a case at close of their evidence, then outlined what case he thought they shouldproven, and told them he was reopening their case so they could prove it.
The rationale appears to be that the gun mfr liability protection statute makes an exception where the gun sale violated the law, and the allegation here is that the sales in general violated NY's nuisance law. I gather that the sales complained of did not occur in NY, but involved sales in other states where the eventually wound up in NY. I'm not entirely clear how a NY nuisance law can be applied to events that do not occur in NY.
The article is in extended remarks, below (thanks to John Hosford for the tip).
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Prof. Volokh on gun mfr liability protection
Slate ran an article accusing the gun manufacturing industry of buying legal protection, and Prof. Volokh engages in a butt-stomping contest over it. He wins, by the way.
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Debate on gun mfr liability protection act
Via the Volokh Conspiracy -- Legal Talk Network has posted video of a debate on the statute. Participants were David Kopel, Prof. Voloh, and Josh Horowitz, head of the Coalition to Stop Gun Violence [formerly National Coalition to Ban Handguns].
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Prof. Volokh on preamble to gun mfr liability bill
Over at the Volokh Conspiracy, Prof. Volokh comments on the impact of the gun mfr liability bill's preamble on the "evolving constitution" concept (i.e., that those who dislike the Second Amendment can pronounce it evolved into nothingness).
I've commented on this (citing Prof. Volokh as the originator of the response) below and more generally here.
[BTW, Prof. Volokh and I both feel the "evolving constitution" is a crock of BS. The very provision for amending the Constitution (with its requirements of supermajorities in both houses and in the States) indicates that the framers intended that the original agreement be changed only by a formal agreement, indeed a near-universal consensus of Americans.]
[Another BTW: under the "evolving constitution," would not the Confederacy have had a solid argument that even if the original Constitution did not permit withdrawal from the Union, by 1860 it had "evolved" to do so? There, they at least had (1) substantial ambiguity as to whether the Constitution permitted withdrawal (as I recall, Robert E. Lee at once point argued that it didn't allow, and Lincoln at another had argued that it did -- things don't get more ambiguous than that) and (2) they had the formal acts of States and people in conventions taking that view. That's a lot more than rub your belly three times and decide whether you individually think the Constitution has "evolved" into a different wording.]
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Canadian govt considering suing gun mfrs
The Toronto Star reports that the Ottawa government is considering suing US gun manufacturers. (If link doesn't work, go to Star and hit search button for Ottawa and sue. It's free subscription, but I get tired of the process. Relevant portions of the article are in the extended entry.
This would pose some interesting choice of law problems -- esp. since it would have to be a suit under Canadian law (since US law now bars it), over the making and legal sale of a firearm in the U.S.. Not to mention questions of personal and subject matter jurisdiction. In any event, it'd been a good time for any US manufacturer to "disinvest" in anything Canadian.
[Hat tip to Don Kates]
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More on S.397
ISN reports the bill passed the House by 283-144 (just a few votes shy of 2:1). It'd earlier passed the Senate by 65-31, over two to one. In the House, 59 Demos crossed over to vote for it, while four Republicans crossed over against it.
The report notes: "One amendment would require gun dealers to sell each buyer trigger locks or gun safes for each handgun bought. Another would ban the possession of armor-piercing ammunition. Rand said her group would work with local advocates to examine the "exceptions to the bill" and move forward on the issue.
"The NRA and their followers are going to be very surprised at the large numbers of cases that survive because of the numerous exceptions," she told ISN Security Watch."
Here's the language of the bill, as passed. There may be exceptions which the antis can work around in some cases, but the armor-piercing statement is rather funny. Yes, Sec. 6 says it bans mfr and import of AP (NB--that is AP as defined in the statute, basically bullets whose entire core is a specified hard metal, as opposed to standard military AP, which has both lead and steel).
But that's merely a slight rewording of the existinglaw. For example, substituting "unless" for "except that this paragraph shall not apply to." Then there's an increase in the mandatory penalty for use of such AP in a crime. (Since, so far as I can find out, no one has ever been prosecuted for such, for the reason that no one has ever used it in a crime, this has all the practical significance of imposing mandatory imprisonment for use of a dirigible in a drive-by shooting).
Then the AG is to conduct a study of whether a uniform system of testing bullets against body armor is feasible. He can't outlaw anything, just study the question. And since he is required to consider different barrrel lengths and loadings, and rifle rounds, I rather suspect the result will be "are you kidding?" Unless maybe "uniform system" means buy 400 samples of armor, shoot at them, and write a check next to any load that penetrates. What's uniform about that I cannot see. (PS: if anyone from the AG's office is reading this, send me 400 samples, a hundred or so guns, and lots of ammunition, and I'll do the test for fre... for a modest fee proportionate to the extremely complex physics involved.)
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Brady Campaign vows suit against mfr protection bill
The Brady Center has announced it will file suit over the gun manufacturer/dealer protection legislation.
I can't see a broad challenge. Brady and suchlike places have pushed the legislation that pushed the envelope on Congress's powers over interstate commerce (somehow, having an assault rifle or other designated gun in your closet is a matter involving interstate commerce), and this law involves commerce far more clearly than any of those. Specifically, it involves protecting commerce from state actions, which is at the very core of the commerce clause power.
One possibility might be the claim that cutting off lawsuits after they were filed is a violation of due process, a deprivation of "property" without due process. I haven't done much research there, but it'd at best rescue the lawsuits already filed. Given the the vast majority of ones filed to date have lost anyway, that wouldn't be much of a victory.
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Gun Mfr. liability protection act
Here's the Senate text, which I gather is what the House passed today. And here's Dave Kopel's take on the statute, via the Volokh Conspiracy.
Interesting language in the findings and purposes section:
"SEC. 2. FINDINGS; PURPOSES.(a) Findings- Congress finds the following:
(b) Purposes- The purposes of this Act are as follows:
(1) The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed.
(2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms.....
....
(3) To guarantee a citizen's rights, privileges, and immunities, as applied to the States, under the Fourteenth Amendment to the United States Constitution, pursuant to section 5 of that Amendment."
Prof. Volokh has made the point that those who argue for an "evolving" or "living" constitution have a serious problem with just who judges the evolution. If the people -- the majority of the US believes the right to arms is individual. If the Congress -- it has before enacted statements that the right to arms is individual (Freeman's Bureau Act in the late 1860s, the Firearms Owners' Protection Act in 1986, now this). If States -- all State constitutional movement for decades has been toward clarifying an individual rights understanding. So even if we hold to an "evolving" constitution, it has evolved toward stronger individual rights understandings. Unless, of course, the "evolving" position becomes so obvious as to admit "To hades with the American people, Congress, and the states -- it's 'evolving' in the minds of judges, and that's what counts."
The reference to the enforcement clause of the 14th Amendment (which says Congress may protect the rights guaranteed, by appropriate legislation) is very interesting, too. Don't have time to look it up, but as I recall there was some caselaw suggesting that enactments pursuant to the enforcement clause have special authority in interpreting what rights are guaranteed under the amendment. If so, this might some day carry some weight, since it ties the 14th rather specifically to buying and owning ordinary, individual, firearms.
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Gun mfr protection bill passes the House
The House has passed the gun mfr. liability protection bill. Since it already passed the Senate, it now goes to the president for signature (and I gather there is no risk of veto, grin). Clayton Cramer remarks on claims that this makes the firearms industry "unregulated."
[UPDATE: the Library of Congress webpage indicates the House passed the Senate bill S.397. I should say suggests. A resolution calling for consideration of the Senate bill passed on 10/17, and then H Res 439 passed on 10/18, providing for the same.
Of course, you never really know until you see the final language. Sometimes the House will, just because it wants the final act to be a "House Bill," take a House bill, strike all its language, insert the Senate-passed language, and pass that. That way the final legislation is labelled as having been a House bill. Strange things happen in Congress.
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C-SPAN poll on gun mfr liability protection.
CSPAN has an online poll on whether Congress should pass gun mfr liability protection.
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Mfr protection passes Senate, and mfr stocks rise
The gun manufacturer protection bill passed the Senate, and word is that Ruger and S&W stocks shot up 25% upon hearing the news. Ah, if I'd only had a little money to invest! (With five kids, fat chance of that).
[In case anyone wonders where all the postings went, the program archives everything at the end of the month. I was out of town until last night, so the main page appears blank].
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Gun Mfrs seek cert. on DC decision
The Insurance Journal reports that gun manufacturers have filed for cert. with the Supreme Court, from the DC Circuit ruling upholding the DC ordinance that imposes strict civil liability for making an "assault weapon" that winds up (by any means) in DC and is used to harm a resident. My previous post on the case is here.
A modest proposal: if a law such as this (a mfr is liable if his product reaches this state (in any way, including by theft and interstate transport), strictly liable for any misuse (even tho the original retail sale in a different state was lawful), then perhaps my own Arizona could enact a law that would enrich its citizens at the expense of out-of-state auto manufacturers. Just enact a law imposing strict liability on the manufacturer of a vehicle that is misused in way that causes an injury. This should be appealing to the Legislature, since there are no in-state manufacturers, and it would drain a few hundred million a year out of Detroit and into Tucson and Phoenix.
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Clayton Cramer on gun mfr liability bill
Clayton Cramer has a take on the present draft of the gun manufacturer's liability bill. I'd tend to read it differently. The bill (if link doesn't work, go here and search for HR 800) essentially prohibits civil suits against dealers and manufacturers, with several exceptions. A person can file the following suits:
(i) an action brought against a transfer or convicted of an offense under section 924(h) of title 18, United States Code, or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted;
(ii) an action brought against a seller for negligent entrustment or negligence per se;
(iii) an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, if the violation was a proximate cause of the harm for which relief is sought, including-- (knowingly making false record, etc.)
Now, (i) covers conviction for violating 18 USC 924(h), which forbids knowing transfer of a firearm to a person who intends to use it in a violent crime or a drug transaction.
(ii) covers negligent entrustment (separately defined as where the seller knew or should have known that the buyer would use the gun in a hazardous way) or negligence per se. The latter is the idea that violating certain types of laws proves negligence automatically. It mostly arose out of traffic laws -- if a person runs a red light or speeds, that itself proves civil negligence. (I'm not sure, but suspect that DUI may not be negligence per se -- after all, a person may be intoxicated but be involved in an accident the other person caused, whereas if one person had the red light and the other the green and an accident occurs, the one who had the red light is clearly responsible for it). In the gun context, as I remember, negligence per se is pretty much found only where a gun was knowingly sold to a prohibited possessor.
(iii) covers knowing violation of federal or state law, if the violation proximately caused the harm. Proximate cause is an ambiguous concept that there must be more than simple "but for" cause, there has to be some degree of direct cause. A lot of gun liability cases have failed on that ground. Seller sells gun, user commits crime with it. Yes, *maybe* if he hadn't got the gun he wouldn't have committed the crime, but the user's decision to commit crime usually makes the causation insufficiently direct, the decision is an "intervening cause."
As I see it, the exceptions are pretty broad. Enough so that all that is ruled out is a suit where no criminal law was broken, and the seller had no reason to believe that the buy would misuse the gun. Given the breadth of regulations in this area, that's pretty narrow. But it would bar suits for, oh, "you make guns, one was used in crime, so I sue," or "the dealer made a completely legal sale, but we feel it was negligent, even tho there was no way to know the purchaser would commit a crime," and of course the wierd nuisance theory suits.
(there are also exemptions for warranty actions, and product liability suits other than ones based on the purchaser's criminal use).
I suspect the bill was redrafted in a hurry, because it has at least one big quirk. The definitions start out by defining "engaged in the business" of mfr, dealer, etc., taking the definitions straight from the GCA. But then the only time that term is used is in the definitions of mfr, dealer, etc. where it says these are folks engaged in the business and licensed to do so. A better approach would have been to leave out all reference to engaged in the business and simply say an mfr is one licensed to be an mfr, etc.. Not only does adding in the term add useless wording, it also leaves at least a tiny loophole, an argument that this fellow may have a dealer's license but he didn't do enough business to be engaged in the business, and hence is not protected.
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Another gun manufacturer lawsuit bites the dust
Via David Kopel, at the Volokh Conspiracy--the Florida Court of Appeals has shot down Grunow v. Valour Corporation.
Facts: a student took a gun from his grandfather (who had inherited it, from a lawful purchaser) and murdered a teacher. Eleven years had passed between the original, legal, sale, and the homicide. The manufacturer had since gone out of business, so the plaintiff sued the distributor. After a ten week trial (how any civil PI trial could last ten weeks is beyond me) the jury found the wholesaler liable on a theory that it had not transferred the gun with "feasible safety measures." It held the wholesaler liable for 5% of the loss.
The Court of Appeals, citing earlier caselaw, held the distributor not liable. " We certainly sympathize with Grunow and recognize the tragedy of the events that transpired. However, it was Brazill, his grandfather, and perhaps the school that were liable, not Valor. "
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Personal jurisdiction
Overlawyered raises an interesting question regarding the DC gun liability suit: isn't lack of personal jurisdiction over the manufacturer a defense?
Personal jurisdiction amounts to -- you can't sue a person anywhere you want: in order to sue a person in a State (or here, DC) you must be able to prove he had some substantial "contacts" with the State. If he doesn't have a real presence there (headquarters, place of doing business, etc.) you have to show other "contacts."
As I recall, the Supreme Court Asahi case split along two lines. The plurality (not enough for majority) position was that the defendant company must have "purposefully availed" itself of the State's markets. Advertised to customers there, things like that. The minority held with a broader "stream of commerce" theory. My memory's a bit foggy, but it amounted to putting things in the stream of commerce when you knew they would go to that State, even if you yourself didn't promote them there.
This might be a especially interesting argument in the DC context, since the firearms in question were forbidden to be sold in DC, hence it would be 100% foreseeable that even the stream of commerce would not lead to their being sold there. And "it was sold at retail elsewhere and somehow private purchasers (or thieves from them) took it to DC" probably would fly under neither theory.
My own experience with personal jurisdiction defenses suggests that, absent this, they're hard to win...
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Prof. Volokh on DC gun mfr decision
Prof. Gene Volokh (UCLA Law School) posts his take on the DC Court of Appeals decision. A snippet:
And this law imposes liability for manufacturing and distributing semiautomatic weapons even if the manufacturers and dealers are distributing the guns far outside D.C., in a jurisdiction where the guns are perfectly legal -- and semiautomatic guns are legal nearly everywhere in the U.S. You may have the perfect right to buy such a gun in some state (let's say Tennessee), sellers may have the right to sell it to you there, and Tennessee-based manufacturers may have the right to make it there, both under Tennessee law and under federal law. But because of the actions of the D.C. City Council, the manufacturers may find themselves having to stop selling the guns in Tennessee, for fear of being sued in D.C. Or they may at least increase the gun's price, which means that the D.C. City Council would have effectively imposed a tax on what happens in Tennessee.
Now some people may think that such guns should be banned or taxed because some people use them illegally, or gun manufacturers should be held liable for that. Others (including me) think that this is no more proper than allowing lawsuits against car or alcohol manufacturers because some people drive drunk. (There are about as many alcohol-related and car-related deaths of innocent bystanders as of gun-related bystanders.)
But whatever you think of the bottom line, surely it's wrong for the D.C. City Council, which represents about 0.2% of the U.S. population, to make rules that affect 99.8% of the population. That's precisely the sort of burden on extra-state behavior that Congress has the power to lift (even if the burden is imposed by a quasi-sovereign state, rather than by the D.C. City Council, which is directly within Congress's plenary power), and that Congress indeed should lift.
And I'd also say the same about similar liability rules imposed on other products besides guns. Say that some neo-prohibitionist state indeed decides to make alcohol manufacturers strictly liable for all alcohol-related crimes caused in that state, even if the alcohol is made and sold outside the state. It would be just as wrong for that state to impose its alcohol-prohibitionist rules on out-of-state manufacturers, distributors, and consumers as it is for D.C. to impose its gun-prohibitionist rules.
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DC Court of Appeals ruling on gun mfr suit
The DC Court of Appeals (not the DC Circuit) has ruled on a gun mfr liability appeal (caveat: pdf file and 48 page opinion).
The suit was based on claims of negligence, nuisance, a DC statute (imposing strict liability for mfrs of assault weapons, which under DC law include any gun capable of firing more than 12 shots without reloading), and some other grounds. The trial court dismissed the suit in its entirity.
A skim of the opinion indicates it affirms all dismissals except for that of the DC statute claim. There, it held that DC itself had no right to sue, but its inhabitants might. One inhabitant was suing, altho he couldn't prove just what mfr's gun had been used (it was only known he was hit by a 9mm). The court holds that it was error to dismiss him at this stage (this was a Rule 12 dismissal, right at the start of the case) since it remains possible that thru discovery he might somehow figure out just what gun it was.
It holds that this imposition of liability would not violate the dormant Commerce Clause, even tho the gun would almost certainly have been sold outside DC. It cites cases holding that tort liability imposed by a state does not violate the dormant clause, even tho it may affect transactions in other states.
Judge Wagner dissents, arguing that the claim under the DC statute should have been dismissed as well.
UPDATE: as the commenter correctly notes, the court did allow DC's subrogation claims as to the two names plaintiffs to survive. I was rapidly skimming the 40+ page ruling and missed that section.
Subrogation is ... well, where you get hit by someone, your auto insurer pays your claim, and has a right by contract to sue the person who hit you to get back what they paid you. In this case, DC has a law providing that where it pays for medical care, it has subrogation rights to sue whoever caused the injury. That may not be much comfort to DC, tho, since (1) the claims are only as to two individuals named as plaintiffs in the suit and (2) apparently they have no idea what guns were used to shoot them.
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Gun Mfr suits and the dormant Commerce Clause
It seems as if at least some of the (now dying off) suits against gun manufacturers would face a serious problem under the dormant Commerce Clause. Specifically, the suits which allege that a manufacturer should be liable because they sold guns to State A, where they are legal, and should have known that some would flow from there to State B, where they are more strictly controlled.
The Commerce Clause empowers Congress to regulate interstate commerce; the dormant clause application of that forbids States (at least beyond a minimal level) to interfere with interstate commerce. (The dormant clause comes in with some frequency, as States try to forbid shipment of this or that through their borders, or impose special regulations on trains or trucks passing thru the State, or try to tax trucks and other equipment used in multiple States). In the above setting, State B (or its courts) is clearly being asked to interfere with legal commerce to State A.
As a thought experiment, let's flip the setting around. State A is the place of business of a gun manufacturer, and it enacts a law imposing a civil penalty of $100,000 plus attorney fees for filing of a lawsuit (anywhere) seeking to impose liability on a manufacturer within its borders, for a lawful gun transfer. Or its courts evolve a comparable doctrine: such a suit is an abuse of process, rendering plaintiff liable for actual and punitive damages.