DC v Beretta: You can take this to the banc...
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Following the decision in the DC Court of Appeals, the court voted to hear an appeal of the three-panel decision en banc; that's all the active judges on the court hearing the case. (You may recall that our side in the Seegars case petitioned for an en banc appeal
but did not receive it). It's interesting to note, when reviewing
this decision, something that is implied by the language of the
decision that may offer some understanding of both side's motivations. The decision cites the District of Columbia and the individual plaintiffs as the appellants. (In strict legal terminology, once you are at the appellate level, you no longer have plaintiffs and defendents -- you have appellants, who are requesting that the lower court be overturned, and appellees, who are usually defending the lower court's decision; and it gets even more confusing if both parties decide to appeal... but I don't think that happened in this case). So, with DC and the individual plaintiffs as the appellants, they are the ones who appealed to the decision and are requesting that the DC Court of Appeals overturn their own three-judge panel. This is interesting primarily because it implies that the the manufacturers chose not to appeal the decision. That's not a solid fact, it's a guess; there are other ways to explain the use of terminology. For example, perhaps both parties petitioned the court to hear the case en banc (each for their own reasons) and the court accepted the District's petition but not the industry's. But, assuming that the manufacturers did not appeal, it's interesting to examine their possible reasons for that decision. Following the decision from the panel, which struck the District's collective claims but retained the individual claims, were the manufacturers willing to let the remaining claims go forward in the Superior Court? That's one of those sticky, uncomfortable tradeoffs. There's no practical way that the plaintiffs could establish a sufficiently direct link through discovery. There's an outside chance that the police could recover one or more matching firearms. However, the primary objective of the plaintiffs is not necessarily to recover damages, but to bankrupt the industry and impose regulation by settlement; it is in their interest to prolong the case as much as possible, because that will increase the cost to the industry in legal fees. The manufacturers, and particularly the insurance companies likely providing their legal services, would presumably prefer to deal with 9 individual cases requesting specific damages, facing a substantial burden of proof, and potentially amenable to settlement than the District's more generalized claims seeking damages for all gun violence within their jurisdiction. They may well be willing to make that tradeoff rather than appeal the case and prolong it further. However, following this decision, the industry did petition for a writ of certiorari before the Supreme Court. They did that despite the fact that this decision is almost identical to the panel decision. Was there a change? Did I miss some subtle difference between the panel decision and the en banc decision? Or am I reading too much meaning into this? Probably the last, but I'll be keeping an eye out as I read the petition later, and it may illuminate the question for me. Now, to the details of the en banc decision. In broad outline, it appears to reach the same outcome as the lower court. In fact, large sections of the discussion appear at first glance to have been lifted almost verbatim. The only significant difference that I can see between this decision and the panel's earlier decision regards whether the public nuisance claim can stand on its own, or whether it is merely a type of negligence. That doesn't affect the outcome much, since the separate claim is still dismissed. Negligent Distribution This count was decided at the two lower courts on the basis of Delahanty as controlling precedent. Before the 3-judge panel, the District invited the court to overturn Delahanty; the panel properly replied that it was still bound. The DC Court of Appeals sitting en banc is not so bound, but nonetheless declines to overturn Delahanty. Point for our side. Some of the relevant points from discussion:
In addition, the court notes that legislative action in this area (eg, the Strict Liability Act) is a more appropriate means of expanding the rules of liability than requesting that the court do so under the common law. The claim of general negligence fails because the legislature has specifically authorized a different claim more specific to this situation. Public Nuisance The discussion of the public nuisance claim has some new material. First, it defines the tort of public nuisance as "an unreasonable interference with a right common to the public." The en banc court accepts the case on this basis, suggesting that there could be a separate public nuisance claim (under DC law, which I gather may be somewhat unusual in this regard) and asking whether the District has sufficiently pleaded that cause of action separately. The answer is no; even though a separate claim may be possible under DC law, the plaintiffs have failed to distinguish their public nuisance claim from their negligence claim to justify a separate result. This sort of decision has got to be frustrating for the District; the court is basically telling them that they might have won this point, if only they had done things a little differently, or found a plaintiff with a different set of facts, or developed the claim further. But for our purposes as gun-rights advocates, it's acceptable. There is also some interesting discussion of City of Chicago v. Beretta, U.S.A. Corp., 821 N.E.2d 1099 (Ill. 2004). That case is very similar, except that it includes retail dealers selling to residents of Chicago (where handguns are banned for civilian use) from their retail location outside of the jurisdiction of Chicago. That court noted that the risk of liability might well continue to exist even if the particular defendents entirely ceased selling firearms, and that the consequences of so holding would be far-reaching. Once again the court gives in briefly to the language of gun control: Deplorable though these facts may be, the ready availability of firearms in the nation at large, and the sheer number and variety of opportunities by which persons intent on acquiring them unlawfully can do so, counsel strong restraint on the part of a court asked to hold defendants ? individual or corporate ? answerable for a common-law nuisance that "result[s from] the aggregate of the criminal acts of many individuals over whom they have no control."The wide availability of firearms may be "deplorable", but it means that no individual manufacturer or dealer can expect to reduce gun crime by voluntarily changing their business practices. I translate that passage to mean "We in the majority dislike guns, but recognize that the policies of gun control do not and can not reduce gun crime." Strict Liability The analysis here is mostly identical to the panel's decision. The individual plaintiffs (and the District as subrogator) may proceed to discovery, but may recover damages under the SLA if and only if they can link a specific plaintiff's injury to a specific firearm and from there to a specific defendent. If anything this point is emphasized even more strongly than in the panel's decision. The Constitutional challenges to the SLA are examined and dismissed, as before, and as before, the dismissal of those challenges seems outcome-driven. Only by handwaving firearms into a special category of devices "whose lethal nature far outweighs their utility" and ignoring the fact that the legal manufacture, possession, and sale are forbidden within the District's jurisdiction can the court justify allowing the SLA to pass due process and commerce clause review. Conclusion Overall, the en banc decision is almost identical to the panel's earlier decision. One or two minor points are adjusted, but that's about it as far as I can tell. |
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