DC v Beretta: Amicus Curiae
|
Following the ruling
in the Superior Court, the District appealed. That shouldn't
surprise anyone, given that the District has two objectives: they'd
like to win the case and get money from the firearms industry to I was able to dig up an amicus curiae ("friend of the court": someone with an interest in the case who wants to file their arguments, but who is not a party to the case) brief from the National Association of Manufacturers in this case. There is at least one other amicus brief by the American Jewish Council, filed in support of the District, but I don't have a copy. The National Association of Manufacturers represents a LOT of manufacturers; it is the nation's larest industrial trade association. It has 14,000 members, of which 10,000 are companies, and 350 sub-association members. They are understandably concerned that the legal principles invoked in this attempt to punish firearms manufacturers will be applied to their members shortly thereafter. Here's how they put it: Order, stability, and predictability in tort law are not only necessary for proper business planning, but also essential to the international competitiveness of U.S. manufacturers. The unpredictable imposition of liability on U.S. manufacturers through the use of novel legal theories makes the investment of capital in the United States less attractive, and tends to push investment overseas, along with the job opportunities that investment in manufacturing industries creates.This is why stare decisis is such a big deal. Legal outcomes should be predictable, if you bother to look at the law and the case history, and know the facts. What the NAM characterizes as "novel legal theories" destroy the ability of a person to follow the law, because the rules could change even after the individual has taken action. And if that can happen, then the rule of law is merely a farce played out by actors in black robes. (In the legal profession, "creative" and "novel" are not compliments). Predictability is important. Sometimes a decision that is wrong needs to be overturned, but the bar for doing so is , and should be, high. The firearms lawsuits, like the tobacco lawsuits, are stretching the law out of shape in order to obtain a result that many liberal judges find desirable. If you can't pass laws that do what you want, you can still force your opponents to the bargaining table with the threat of endless legal costs. And that would spell legal doom for manufacturers of knives, matches, rope, automobiles -- literally any product that could foreseeably cause harm if misused. There's obvious reason for concern. And there's an obvious precedent: Delahanty v Hinckley. Yes, that Hinckley, the one that tried to kill President Reagan. That's a 1989 case wherein the Delahantys sought to recover damages for injuries suffered during the assassination attempt, suing the manufacturer of the firearm (R.G. Industries) as well as the (attempted) assassin himself. They alleged that the firearm Hinckley used is easily concealed, inexpensive, poorly constructed, unreliable, and not useful for legitimate purposes, but instead (due to its low price) commonly used for criminal purposes. In that case the lower court certified a question to the Court of Appeals regarding whether the lower court should adopt the plaintiffs' theories of liability. The Appeals Court said no, without equivocating on that point -- indeed, they expanded the question to cover whether any established theory of tort law in the District provide a cause for action following criminal misuse. And they said no. Hence the Strict Liability Act, which sought explicitly to provide such a cause for action. The amicus brief points to Delahanty v Hinckley and notes that that case pretty much destroys the plaintiff's case with regard to the public nuisance and negligent distribution allegations. They are not dealing directly with the Strict Liability Act because they are more concerned with legal theories that would affect other manufacturers without additional legislation. Plaintiff's response to D v H is to cite DC v Carlson. In the latter case (according to the summary in the amicus), the court found liability for injuries sustained in a car accident caused by a non-functioning traffic light within the District's jurisdiction. That case dealt with the issue of causation, rather than the question of duty; there was unquestionably a duty on the part of the defendents to maintain the traffic signals or provide reasonable alternatives, and they did not argue otherwise. In other words, Carlson is answering a different question -- whether the District's failure in that case was a proximate cause of the accident. The Strict Liability Act gets around the causation issue but does not avoid the question of duty -- or at least, so the Superior Court ruled. To understand what the amicus is talking about, remember that establishing liability requires several components; one is a special duty of care, eg, for a landowner to keep his property safe, or perhaps for an employer to control his employee's conduct in the workplace; and another is that the negligence must be a proximate cause of the injury. Carlson establishes liability for negligence, but doesn't remove the requirement for a special duty of care. The second point addressed in the amicus is whether there can be a public nuisance claim on property not controlled by the defendants at the time of the injury. It's sort of like suing someone who owned a particular swimming pool several years before the injury occurred, but who had sold the pool to someone else by the time the injury took place. This is a fairly nuanced point, since normal product liability claims do, in fact, work that way -- the manufacturer is liability for injuries due to defect regardless of the present owner. But public nuisance claims don't; the manufacturer of a pool is not liable for injuries that occurred because the owner of the pool did not install a fence. It's also worth noting that the swimming pool's fence does not need to keep out everyone who might try to get in to swim in the pool; it needs to present a token barrier, sufficient to convert someone walking around casually and accidentally falling in to someone deliberately breaking through the fence to swim. Finally, since the defendents in this case do not control the property which allegedly constitutes a public nuisance, they have no way to abate the nuisance. There is no action that the manufacturers could take that would prevent or mitigate the criminal use of existing handguns within the District. They could stop manufacturing more, of course, but that would only reduce potential liability in the future; it would not do anything about the existing handguns in the hands of criminals. And, of course, public nuisance claims depend on the negligence inherent in not taking actions where actions are possible. When someone else is in control of the property, it becomes their responsibility to abate the nuisance. Overall, this brief is interesting more for its existance than its argument. We've seen the arguments before in the Superior Court's decision. But this time they are being made by a large and prominent association of manufacturers, who feel seriously threatened by the theories of liability that the District is proposing. They saw something very similar happen to the tobacco industry, and now they are seeing it happen to the firearms industry, and they can connect the dots -- one of their members will be next. |
Check the groups below and enter your email address to receive updates by email:
The trackback URL for this entry is: http://triggerfinger.org/weblog/servlet/trackback/6733
phentrmine
cheap phentrmine
Search engines for mp3, people, web and ...
A Directory of all the worlds search engines and directories.