Beretta

The judge, it seems, was none too happy about the outcome, but felt that it was dictated by the Protection of Lawful Commerce in Arms Act: 

The D.C. Council, she wrote, had determined that assault weapons have "little or no social benefit but at the same time pernicious consequences for the health and safety of District residents and visitors." Congress, however, "has trumped local law by passing legislation to protect the profits of such manufacturers," she wrote.

Of course, the legislation doesn't protect "profits"; it just protects the manufacturers from liability.  If the DC Council is right about the social value of firearms, then surely no one would want to buy a firearm and all the manufacturers will shortly go out of business.

This particular case is as close to a slam dunk as we are likely to see from the POLCIAA.  I'm not surprised by the outcome.  Any judge with a minimal respect for the law would be compelled to find similarly. 

The Brady Campaign is making noise about the Supreme Court's denial of cert in DC v Beretta.  It's kind of silly, because the Supreme Court's refusal to hear the case doesn't really change much.  While we had of course hoped that the Supreme Court would take the case and strike down the Strict Liability Act that the District is so fond of, the court has repeatedly emphasized that denial of cert is neither meaningful or precedential. 

And I can probably tell you why the court declined to take that case, and the reason is rolled up in the new Chief Justice.  Rehnquist would have been a solid vote for gun rights.  Chief Justice Roberts might be, but he has indicated that he would recuse himself from participating as a Supreme Court Justice in decisions that he took part in as a lower court judge... such as this case, which was heard en banc while he was on the DC Appeals Court. 

While he's not listed in either of the opinions before that court, the simple fact that he was on the court and the case was heard en banc might well be enough to earn a recusal, particularly since I do not have a vote count for this case (Roberts would probably have voted).  It's also possible that Roberts recused himself simply because he was not familiar with the work that has been done on the case; the denial of cert was handed down on his first day. 

Whatever the reason, the Supreme Court docket clearly states that the Chief Justice took no part in the case.   If he would have continued that practice for the remainder of the case, our side would have lost one of our strongest voices and surest votes.  Under those conditions, it's clearly better to retreat for the moment.  The outcome of DC v Beretta is not really in doubt following the appeals court's decision; the industry will face ongoing legal costs, discovery, and a potential settlement, but they will face those things in a matter of eight individuals rather than all victims of gun violence in the District of Columbia. 

In addition, the plaintiffs will have a very hard time proving the link from their injuries to a specific weapon manufactured by one of the defendents, something that almost certainly prevents them from winning anything.  They can only hope to drag the case out as long as possible in discovery, running up the industry's legal costs and praying for some embarassing document or testimony to turn up.

Any further suits will likely follow a similar path to the Supreme Court, and that Court will have a new Chief Justice and possibly a new Associate Justice, both of whom are presumably in favor of the right to keep and bear arms and able to participate in the case. 

And that's assuming that any such suits are still around after Congress finishes the liability protection act designed to block these cases.

Make no mistake, this is not a loss.  It's simply not a complete victory.

If you will recall, the DC v Beretta case is currently on hold, waiting for the Supreme Court to respond to a petition for certiorari.  While we wait with anxiety to hear the results of that petition, I will look towards the other front on this particular legislation: the Protection Of Lawful Commerce In Arms Act of 2005.  That mouthful will have absolutely no problem passing the House and even less getting signed by President Bush.  The Senate is tougher; last year the Democrats narrowly succeeded in attaching poison-pill amendments that were sufficient to block the legislation.   This year, the Democrats won't have a conveniently-expiring assault weapons ban to flog, and this will likely make it tougher on them to block the legislation.  They might still be able to filibuster it. (See update below)

So, what if it passes?  What effect will this have on the DC v Beretta case?

The legislation provides that "a qualified civil liability action may not be brought in any Federal or State court"; and it orders the immediate dismissal of any "qualified civil liability action" pending on the date it becomes law.  That pretty much answers the question right there; if DC v Beretta is a "qualified civil liabilty action" then it must be dismissed. 

What is a qualified civil liability action?  It is a lawsuit "brought by any person against a manufacturer or seller of a qualified product [a firearm], or a trade association, for damages ... resulting from the criminal or unlawful misuse of a qualified product [firearm] by a person or a third party."  That pretty much covers it; the District is suing manufacturers for damages resulting from the criminal use of firearms.  However, there are exclusions:

• Actions brought against an illegal transferor who has been convicted of felony related to the transfer;
  
• Actions brought against a seller for negligent entrustment or negligence per se. 
  
• Actions brought against a manufacturer or seller who knowingly violated a law in the course of the sale, and in which damages are sought persuant to that violation.
• Actions brought for breach of contract or warranty.
• Actions brought for death, physical injury, or property damage resulting directly from a defect in design or manufacture of the product, except for criminal offenses.

So how do these exceptions stack up?  There are no allegations that the defendents engaged in illegal transfers in the case.    There are no allegations that the manufacturer or seller violated a law in the course of the sale.  There are no allegations of breach of contract or warranty.  While there are  actions brought for death, physical injury, or property damage, they are not alleged to result from a defect in design or manufacturer, and they are the result of criminal offenses.

The only one that might apply relates to actions for negligent entrustment or negligence per se.  Negligent entrustment involves knowingly or negligently failing to know that the buyer intended something criminal; that doesn't apply here.  Negligence per se might, since the District did bring a claim for negligence; but no court has upheld the negligence claim.  Both the DC Appeals Court and the Superior Court dismissed the negligence and public nuisance claims; the DC Appeals Court allowed those claims based on the Strict Liability Act to survive. 

This legislation, if passed, would require that the Court immediately dismiss the remaining claims, and would bar the court from entertaining similar claims in the future. 

It would not prevent the District from coming back with silly claims about "defective" firearms involved in accidents.   However, since the District views possession of a functional firearm by a civilian to be a crime, they will need to wait until the "criminal act" exception to the exception does not apply -- eg, a firearms accident involving an elite, either a police officer, security guard, or politician.

Note that some of the other lawsuits do involve defective product claims.  This particular one does not.

One thing that does worry me, now that I've looked at the new version of the law, however: the criminal act exception to product liability statutes becomes an incentive to manufacturers to lobby for "safe-storage" laws, because firearms not stored in compliance with such laws shield the manufacturers from product defect liability.  It might be a good idea to find a better way to phrase this that would remove that incentive somehow.  Unfortunately, I can't think of anything better off the top of my head.

UPDATE: A commenter points out that the Act passed the Senate in July.  He's right.  However, it's still not law -- the companion bill has not yet passed the House, although it has been scheduled for debate.  It should clear the House and be signed by the President without any serious obstacles, but it has not yet (as of the time of this writing, and assuming the information sources here are up to date) become law.

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:

1. There is no duty to warn of the dangers of criminal misuse because the hazards of firearms are obvious.
2. Manufacturers' actions in manufacturing and marketing firearms are not abnormally dangerous, because the danger arises from their use not their marketing.
3. Rejecting "social utility" theory of tort on a particular class of firearms ("Saturday Night Specials") because all firearms are capable of being used for criminal activity.
4. Distinguishing Carlson (the broken traffic light negligence case) by noting that the violation of a criminal statute by the driver was not intentional.
5. Reiterating that the manufacturers are not accused of a direct link, only an extremely indirect one, and finding liability for the criminal actions of unrelated third parties is simply not the law -- absent the Strict Liability Act, of course.
   

The only point that worries me is the third, which originated from a Maryland court.  If the courts are allowed to judge the "social utility" in determining whether or not it can be manufactured or sold, the legislature has no purpose.  Insofar as judgements of social utility are required, they should not be the province of the courts.  However, this decision gracefully sidesteps the issue, and it's really not a relevant issue for this litigation.

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.

A three-judge panel of the DC Appeals Court (represented by Terry, Farrel, and Pryor) issued a 42-page decision in DC v Beretta, which the District had appealed following their loss-on-all-counts in the Superior Court.   As before, I note that this is not the final resolution of the case; I'm still reporting on backstory.  This decision was issued April 29th, 2004. 

To end the supense, here's the summary from the Appeals Court:

We reverse the dismissal of the statutory count as to the individual plaintiffs, holding that they may advance to discovery on strict liability notwithstanding the difficulties of proof they may confront. We also reverse the dismissal of that count as to the District of Columbia to the extent ? but only the extent ? that it seeks subrogated damages as to named individual plaintiffs for whom it has incurred medical expenses. Otherwise we sustain the judgment of the trial court, holding that none of the plaintiffs has stated a valid claim of common-law negligence and the District has not stated a claim of public nuisance on the facts alleged.

On the whole, it's not a bad outcome.  The only claims to survive are those based on the Assault Weapons Strict Liability Act.  Those claims have survived only to the extent that the plaintiffs are allowed to conduct discover in order to attempt to produce evidence that proves their claims -- by establishing a specific tie between an injury and a particular manufacturer.  The collective liability theory appears to have been completely discarded, as have all claims based upon public nuisance or negligence theories. 

This decision, though it allows individual claims to proceed, does not seek to overturn massive amounts of case law.  It's basically saying that the District's strict liability law may be valid, and the plaintiffs get the chance to make their case.  We're no longer setting new rules for the whole industry and back into something that's just about guns, using the normal standards of proof for the injury causation analysis.

That said, it's still a potentially very bad outcome for our side of the issue.  Here's why:

1. It means that the case can continue.  That means the industry, or their insurers, needs to pay its lawyers.  That raises the likelihood of a settlement.
2. Even if the plaintiffs lose on all counts after a full trial, they will have access to massive amounts of information obtained in the discovery phase.  While this is probably not going to contain any smoking gun, it's going to give the enemy a treasure trove of industry information to use in future claims.  Remember that the gun control movement is paying the lawyers for a number of different city lawsuits, and they will share information.
3. The DC Appeals Court has not declared the Strict Liability Act unconstitutional.  While I don't think this is the final word on the constitutionality of that act, if a city can pass such a law and have it pass constitutional review, the death of the firearms industry in this country is inevitable.
4. If the case reaches a jury, the jury may not care about the finer points of a legal analysis and render a verdict based on ... well, to be honest, based on their prejudices. 
   

Negligent Distribution

As to the actual decision itself, it spends a fair amount of space discussing Delahanty and the certified question asked of the DC Appeals Court in that case.  The decision establishes that Delahanty is binding on both the lower court and the present court (noting that the plaintiff's invitation to overrule that case is not properly directed to the present court). 

The court also notes that there may be some leeway in the case law requiring a special relationship -- that is, the foreseeability of a criminal act "may, and perhaps must have, a relational component."  That's not absolute, but it's still fairly strong.  Consider the hypothetical case of the gun dealer who sells a firearm to a man who states baldly, and with all appearance of seriousness, that he needs the gun to kill his wife.  There's no special duty relationship there, but you could make a good case for liability based on the fact that it was obvious what the man intended to do with the gun. 

The court describes the law thusly (quoting from Potts v District of Columbia (emphasis in the panel's decision):

this court has repeatedly held that liability depends upon a more heightened showing of foreseeability than would be required if the act were merely negligent. In such a case, the plaintiff bears the burden of establishing that the criminal act was so foreseeable that a duty arises to guard against it. Because of the extraordinary nature of criminal conduct, the law requires that the foreseeability of the risk be more precisely shown.

The bar here is pretty high.  Remember that anyone buying a firearm must be approved by the federal government, and that process is supposed to detect and reject those subject to restraining orders or the like.  In addition, federally-licensed manufacturers sell to federally-licensed distributors who sell to federally-licensed dealers who sell to legal customers and only then can crime become a significant possibility.  Usually it takes several more sales.  The foreseeability test can't possibly be met until the transfer immediately before the criminal use, which puts the manufacturer completely out of the picture. 

One case which found for liability on this basis was DC v Doe, claiming that the District could have prevented a child rape at a District school.  However, that case involved evidence of heightened risk factors to a particular location and a particular type of attack; several succeeding cases declined to find liability where no evidence of such was introduced.  (Personally, I would think that a student in school presents a textbook special relationship that would thus not required heightened foreseeability; but I could be missing something).

Several of the succeeding cases cited deal with firearms, including cases where liability was not found despite evidence indicating that a particular area was a "high crime" area.  That's not enough.  It has to be specific to the location under the defendent's control to even come close to meeting this test, even if we ignore the fact that we're talking about a manufacturer rather than a property owner.

Public Nuisance

The same basic arguments apply to the public nuisance claims.  The sheer distance of the alleged cause from the alleged injury is a strong discouraging factor, as is the lack of control or duty on the part of the defendents.  The District tries to get around this by alleging intentional tortious conduct by the manufacturers and distributors.  That theory might be legally sufficient if it was not absurd on its face.  As it is, in the absence of any real evidence, it serves mainly to demonstrate the paranoid and prejudicial mindset of the gun control advocates.  That they can allege intentional supply of criminals with a straight face surprises me, and speaks volumes concerning what they actually think of the firearms industry.

Strict Liability

The language of the Strict Liability Act:

Any manufacturer, importer, or dealer of an assault weapon or machine gun shall be held strictly liable in tort, without regard to fault or proof of defect, for all direct and consequential damages that arise from bodily injury or death if the bodily injury or death proximately results from the discharge of the assault weapon or machine gun in the District of Columbia.

The panel begins by holding that the Strict Liability Act confers a right of action to individuals, but not to the District directly.  This destroys the District's independent claim under the statute.  The District's argument consists of suggesting that the term "arise from" in the statute denotes something less direct than, for example, "result from"; and on the basis of that narrow shading of meaning they want to recover the costs of providing emergency services to gun crime victims.  The court says, in essence, that they are asking for too much based on too little.  Even if they are right that the term is supposed to be broader than simple personal injuries, there's no indication that it is supposed to provide for something on the scale that the District is requesting.

Second, it examines the District's subrogated claims.  The panel decision leaves most of those claims on the floor where the Superior Court left them, but does resurrect the subrogated individual claims from the specifically-named plaintiff's injuries.  In other words, it may be possible to recover damages for individual injuries, via the subrogation statutes that allow for that, but not for "gun violence" as a whole.

As I mentioned before, what the District is really trying to do here is bring a class-action suit for all victims of gun violence within its jurisdiction, without jumping through the necessary hoops to do so.  This ruling will at least force the District to litigate each and every claim, rather than receiving a lump-sum judgement.

Rule 12 (b) (6)

The Superior Court dismissed the claims under the Strict Liability Act because those claims did not identify the specific weapons used to injure the plaintiffs, nor link the weapons to a particular manufacturer or importer, nor demonstrate that the weapons were considered "assault weapons".  The DC Court of Appeals basically rules that these claims cannot be dismissed at this stage, because the plaintiffs have had no opportunity to make that identification through discovery.  The proper course would be to allow discovery and rule upon a summary judgement motion once it was clear that the plaintiffs would not be able to identify the particular weapons used to injure them.

That's sort of like saying that you can't dismiss the case... yet.  It's annoying because it means increased legal costs defending the case, and the potential for information in discovery to leak out, but doesn't mean that case is lost, or even that it will come before a jury. 

Constitutional Challenges (Commerce Clause)

Unfortunately, this panel is not persuaded by the Constitutional arguments against the Strict Liability Act.  This is probably the most significant defeat here, since if the Act is valid the District can keep coming back with new individual claims until they get some that stick. 

It's clear that the SLA is not economic protectionism, which the Commerce Clause was presumably intended to prevent.  There are no legal manufacturers (or even dealers?) of assault weapons in the District's jurisdiction.  That's relatively non-controversial, although it could be argued that the lack of such industries within the District makes the law an effort to punish the industries within other states -- one half of the protectionism equation.

The panel also holds that the SLA does not directly regulate conduct outside of the District of Columbia.  It simply imposes liability, which the defendents might avert by changing their business practices.  The panel holds that the validity of the commerce clause challenge depends on whether the law imposes a clearly excessive burden on interstate commerce in relation to the local benefits.  Interestingly enough, the cite for this is Brown-Forman Distillers Corp v New York State Liquor Authority; we've now cited precedent from alcohol, tobacco, and firearms cases...

The panel proceeds to rely upon legislative findings for the "benefits" of the SLA to the District.  This is where the panel drinks the gun-control koolaid, concluding with:

The legislation, in short, addresses a pressing concern for public safety by giving innocent victims of gun violence in the District a cause of action against manufacturers or dealers for injuries caused by particularly lethal firearms whose destructiveness outweighs any legitimate utility they may have.

Remember, when the District talks about assault weapons, thjey are talking about all semiautomatic firearms.  The findings that the panel relies upon here include such gems as "the manufacture and distribution of these weapons are among the proximate causes of the rising number of homicides in the District," "assault weapons are abnormally and unreasonably dangerous," "pose risks ... which far outweigh any benefits that assault weapons may bring."

If those claims were true, it would be one thing.  But they are absurdly false.  Nevertheless, they convinced this panel.

Interestingly, the panel decision notes that it upheld the District's ban on handguns against a commerce clause challenge in McIntosh v. Washington (1978, shortly after the law passed).  Personally, I think there's a difference between a local ban and a local imposition of liability; it's reasonable to restrict the sale of a particular item within a particular jurisdiction, but not reasonable to restrict (by means of threat of liability) the manufacturer and sale of such items anywhere.  The defendent's actions all take place outside of the District's jurisdiction, so how can they incur liability within the District?

Constitutional Challenges (Due Process)

The panel decides that the Superior Court and the defendents confuse the question of punitive damages with compensation to victims.  The correct rule, says the panel, would distinguish between those two types of damages.  

Under Gore, the SLA would violate due process only if it penalized manufacturers ?for conduct that was lawful where it occurred and that had no impact on [the District] or its residents."

The problem here, of course, is that the defendent's conduct can have no legal impact upon the District or its residents.  Any civilian possessing an assault weapon within the District has violated the law in doing so.  How can it not be a due process violation to punish someone for someone else's conduct that is prohibited by law?

This part of the decision shows additional evidence that the author drank the gun control koolaid, repeating the claims that assault weapons "danger far outweighs their utility".  Although it's not stated explicitly, the implication is that the nature of the product (eg, an "assault weapon") somehow renders it more vulnerable to liability from criminal misuse.  And I just can't agree with that.  This section of the decision appears to be based on claims that are factually incorrect, for which no evidence was presented, and seeks to create a special due process exception for products which fail a utility analysis that was never undertaken.

The 2nd Amendment is, of course, the elephant in the room that no one bothers to mention.  Because the defendents did not bring it up in their challenge, it's not dealt with in the opinion. 

This decision was appealed to the DC Court of Appeals en banc.  That decision is next.

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 line their pockets support their city's police and firefighters, and if they can't win the case, they can at least make the industry spend a lot of time and money defending it.  Appeals are inevitable, especially with the anti-gun lobby paying the legal bills for the city. 

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.

Following the extremely favorable decision in the DC Superior Court, the case was appealed to the DC Court of Appeals.  That court upheld in part and reversed in part.  Specifically, it upheld the individual claims while allowing the dismissal of the District's action to stand, under the theory that the plaintiffs are entitled to discovery concerning their claims in the hopes of tying their injuries to a particular firearm, and thus to a particular defendent. 

That's less of a victory than the Superior Court decision, but the case isn't over yet.  The industry has petitioned the Supreme Court in the hopes of overturning the ruling.  Even if that appeal fails, it's still not a loss.  Unfortunately, it does mean that the industry will need to continue to defend the case, paying the necessary legal fees.  Even "not losing" is still expensive, and that's been the whole point of these lawsuits from the beginning.  Gun Week has a summary of this decision.

I'm trying to get my hands on the whole decision, so I can present the case in some semblance of chronological order.   I may even already have it filed somewhere.  You'll see it when I do.  After that, or if I can't find the decision anywhere, I'll move on to post the petition for certiori to the Supreme Court, which I do have ready...

UPDATE: 30 seconds after I posted this, I found the decision of the DC Appeals Court.  Analysis to follow.

This post continues my analysis of the DC v Beretta decision in the DC Superior Court.  This is not the final resolution of the case; and this count specifically deals with the collective liability claim (more commonly known as "market share liability").

Count V: Collective Liability Theory of Damages

To summarize from the decision:

Even if all the substantive causes of action had been pleaded sufficiently as against each defendant, the Complaint must be dismissed to the extent that plaintiffs seek anything other than individualized liability of each defendant. In other words, this case is not pleaded in such a way as to erect a lawful demand for damages based on the concept of ?market share liability? or any other iteration of this theory. There is ample case law to demonstrate this point, and it totally favors the defendants.

Doesn't look good for the plaintiffs at this point, but let's find out why.  The basis for market share liability is to find a way to deal with situations where products from separate manufacturers are interchangable and the manufacturer of a particular product that did harm cannot be determined. 

From a successful market-share liability case:

Key to our decision were the facts that (1) the manufacturers acted in a parallel manner to produce an identical, generically marketed product; (2) the manifestations of injury were far removed from the time of ingestion of the product; and (3) the Legislature made a clear policy decision to revive these time-barred DES claims.

And regarding similar market-share liability claims in Hamilton v Beretta:

Circumstances here are markedly different. Unlike DES, guns are not identical, fungible products.  Significantly, it is often possible to identify the caliber and manufacturer of the handgun that caused injury to a particular plaintiff. Even more importantly ? given the negligent marketing theory on which plaintiffs tried this case? plaintiffs have never asserted that the manufacturers?marketing techniques were uniform. Each manufacturer engaged in different marketing activities that allegedly contributed to the illegal handgun market in different ways and to different extents. Plaintiffs made no attempt to establish the relative fault of each manufacturer, but instead sought to hold them all liable based simply on market share.

Firearms are manufactured with significant design differences, have substantial differences in marketing and distribution, are uniquely marked with serial numbers to enable a chain of ownership to be established, and are about as far from identical, untraceable products as can be reasonably achieved.

The collective liability claim fails because the facts of the case do not merit application of market-share liability.  Firearms are simply not generic, interchangable products impossible to trace to a specific manufacturer. 

This post continues my analysis of the DC v Beretta decision in the DC Superior Court.  This is not the final resolution of the case; and this count specifically deals with the subrogated claims raised under public reimbursement statutes -- or in layman's terms, the District seeking reimbursement for services provided or costs incurred on behalf of someone else who was injured (in this case, emergency personnel) and whose original claim is the actual cause of action.  This is basically what an insurance company does in the case of legal action: they pay you, and they sue other parties on your behalf,  if necessary, to recover the costs of what they paid you.

Count IV: Subrogated Claims

Here's what the decision has to say about the subrogation claims overall:

The District?s subrogation claims are beset with many pleading deficiencies. The Complaint is oddly organized and worded in a variety of ways.  There is an ambiguity as to whether the District relies on the three subrogation statutes as the basis for its right to sue in any of the substantive Counts other than Count I. In either event, the subrogation claims must be dismissed.

So, at least according to the judge, the District's lawyering here is very muddy.  More specifically, the District has failed to include the identities of those individuals whose claims it is subrogating; failed to include an assignment of claim from those employees whose claims are being subrogated, when such assignment is required; failure to detail the specific claims and claimants it is seeking to subrogate. 

To use the insurance analogy, it's like suing Ford or GM, claiming that their products were involved in a car accident that injured an employee, and refusing to specify which employee, which vehicle hit him or her, when and where the accident occurred, or what specific costs were incurred as a result of the accident. 

In this respect, this claim reminds me very much of the tobacco lawsuits again; very broad, very sweeping, trying to handle a broad "public health" claim all at once rather than litigating each case individually or using a class action, and basically engaging in extortion: settle the lawsuit for some amount of money, even though it's meritless, and we'll withdraw the case rather than risking an even bigger loss in front of a jury. 

In addition to the failure to identify the specific claims and claimants, those claims dealing with the costs for police and firefighters are invalid because the District is barred from filing suits for injuries sustained while performing their ordinary public duties -- the professional rescuers doctrine.

There may be some subrogated claims which do not fall under that doctrine, but those claims also fail due to lack of specific identification.  As the decision puts it, "a plaintiff cannot wear a mask".  His or her identity and the basis of his or her claim must be revealed. 

Finally, the lawsuit also seeks to recover damages for future, speculative costs.  That's so obviously invalid it's hard to believe it was included at all -- except that similar ideas and claims were included, successfully, in the tobacco lawsuits.  (Most of those lawsuits settled out rather than going to trial, which means the legal validity of the future damages is not necessarily established precedent).

The District does win a very minor point in this section: they are permitted to aggregate claims without enumerating the details of the specific incidents for each claim, at least with regard to this count.  However, it's only a partial victory, since the judge rules that they are still required to detail the individuals whose claims are subrogated.

This post continues my analysis of the DC v Beretta decision in the DC Superior Court.  This is not the final resolution of the case; and this count specifically deals with the claims raised under the District's strict liability law.

Count I: The Strict Liability Act

The defendents here are using a two-prong defense.  They seek to convince the court both that the Act is unConstitutional on commerce-clause grounds, and simultaneously argue that even if Constitutional, the plaintiffs' pleadings are insufficient to have standing to sue, even under the Act.  They're not betting the farm on the constitutional issue surviving through the Supreme Court; that's just safe lawyering.  There are two core allegations here; first, that the plaintiffs have insufficiently pleaded their claims, and second, that the District itself is not authorized to sue for damages under the law.

The Individual Claim of Lawson

Lawson was shot twice within the district in 1997 and paralyzed.  The bullets were "either .380 or 9mm caliber" (sic), and "most likely were fired from a 'machine gun' as defined by the Strict Liability Act which was manufactured, imported, or sold by one of the Defendants." 

There are some obvious problems here.

First, Lawson doesn't have a link to a specific defendant.  He doesn't even allege one.  He doesn't have the specific firearm used (which would enable the specific manufacturer to be determined).  He can't even say with certainty that the bullets were fired from a 'machine gun', which is required to trigger the Strict Liability Act. 

At this stage of the process, plaintiffs have a distinct advantage.  All they want is to get before a jury, where they can do their best to wave sympathetic plaintiffs and publicity before the noses of District residents living in perpetual victimhood.  In order to get there, they need to allege (not prove, just allege) a theory of the case that is legally sound, if they can prove their allegations.  Juries try questions of fact, judges deal with questions of law. 

But the plaintiff Lawson doesn't allege a specific link between his injuries and a specific plaintiff.    That means he doesn't have standing to sue all the manufacturers; there's no specific case or controversy before the court, just an allegation that one of them was responsible for his injuries.  You can't generally win "collective" damages from a group unless each member of the group individually injured you.  In other words, sue the right person.

Now, sometimes you can bring a suit with facts like this unknown, expecting to uncover them in the trial process (the discovery phase).  After all, sometimes you need records from the parties you are suing, or some third party, and you can't get them without a court order.  But in this case, the parties best able to determine the necessary facts (ie, who manufactured the firearm used to shoot Lawson, and was that firearm a "machine gun") are the plaintiffs.  The manufacturers aren't going to conduct a criminal investigation to locate the gun that shot Lawson; the police are the ones with the tools and the responsibility of doing that.

Instead, the police neglected to do so in favor of attempting to impose collective responsibility for the injury.

And he doesn't allege a specific firearm, either.  This is even more important.  By refusing to allege a specific firearm, Lawson cannot establish standing under the Strict Liability Act.  He was shot with two bullets, which could have been 9mm  (commonly used in semiautomatic firearms covered by the Act), OR .380 caliber (less popular smaller semiautomatic firearms), OR, assuming some confusion, a 38 Special -- a very common revolver round that produces wounds very similar to a typical 9mm semiautomatic.  Unless there's a very unusual revolver with more than 12 rounds per cylinder floating around, revolvers are not covered by the Strict Liability Act.

So, Lawson doesn't have a case against any one manufacturer, because he doesn't know who manufactured the firearm that was used to shoot him; and he can't even bring in the Strict Liability Act, because he can't show that he was shot with a "machine gun" under that law.  Those are two great big glaring holes in his claim.  Now, it's true that they are technicalities; a different plaintiff could sue, having recovered the "machine gun" used to injury him or her, and allege a specific link.  But they couldn't do it all at once, just one manufacturer per plaintiff per injury.  And they didn't do that in this case.

What amazes me about this is that the District's lawyers apparantly didn't see it coming.  Surely they could have dug up one plaintiff injured by one of each manufacturer's "machine guns", such that they could produce the firearms, invoke the Strict Liability Act, and proceed to an emotional jury trial which could obscure the legal principles involved? 

Evidently not.  I guess they were trying to treat the case like some sort of class-action case with representative plaintiffs, and the judge just isn't letting that fly.  As the judge puts it:

The Strict Liability Act, while eliminating the concept of ?fault? from the analysis, does not in any way eliminate a plaintiff?s obligation to be specific about the identity of the firearm and the identity of the manufacturer, importer, or seller who is responsible for the particular weapon.

You've got to be able to link the injury to a specific defendent, you can't just blame 'em all.  And you've got to be able to link the injury to a specific firearm, or you can't invoke the Strict Liability Act.

The Other Individual Claims

The flaws just discussed do not just apply to Lawson; they apply to all individual plaintiffs in the case.  (That crashing sound you hear is about half the lawsuit falling away -- oops).  There's only one additional point worth raising; since the Strict Liability Act applies to firearms manufactured or imported after its effective date, you really do need a specific weapon in order to apply the Act.  Without the weapon, you can't readily determine that it was manufactured or imported after the Act was in force.  Thus, even a plaintiff who brings testimony that he was shot with "an AK-47", would need to also bring evidence that the "AK-47" was manufactured or imported after the effective date of the Act.

The District's Claim

The defendents attack the District's claim on several fronts.  First, the District's independent claim is not authorized by the Strict Liability Act; only individual claims are so authorized.  Second, case law prevents lawsuits for "municipal cost recovery".  Third, the subrogated claims (that's claims to recover the cost of services provided to injured parties) are not identified with specificity, nor linked to a weapon covered by the Strict Liability Act.

In order words, once again the District's lack of specificity bites them on the ass.  They don't name the people they are supposedly suing on behalf of, they don't produce the weapons involved to demonstrate that they fall under the Strict Liability Act, they are trying a cost-recovery tactic that courts have already ruled is inappropriate, and the District isn't authorized to recover damages directly under the Strict Liability Act even if they could prove it applied.

Direct recovery not authorized by the Strict Liability Act

The argument here boils down to simple legislative language.  The Strict Liability Act, in relevant part:

Any manufacturer, importer or dealer of assault
weapons and machine guns shall be held strictly liable in tort, without regard to fault or proof of defect, for all direct and consequential damages that arise from bodily injury or death if the bodily injury or death proximately results from the discharge of the assault weapon or machine gun in the District . . .

This section shall not operate to limit in scope any cause of action, other than that provided by this subchapter, available to a person injured by an assault weapon.

Clearly, we're talking about people who suffer injury or death, not a right for the District to file a class-action suit on behalf of such persons.  The plain language of the statute is how it should be understood.  The District itself is bringing this lawsuit presumably because, after waiting nearly a decade after passage of the law, no individual plaintiffs took advantage of it... until the District offered to pay their legal costs.  I imagine that was quite frustrating.

The Bar to Municipal Cost Recovery

In addition to the subrogated health care claims, the District is seeking to recover the costs of providing law enforcement services due to "gun violence".  This goes beyond the Strict Liability Act's application to personal injuries and consequential damages.  In other words, while you might be able to sue under the Act to recover subrogated health care treatment costs, you can't recover the costs of operating a police force.

Even aside from that, the defendents cite District of Columbia v. Air Florida, Inc. for the claim that municipal cost recovery for emergency services requires a specific authorizing statute.  It's fairly clear, established precedent.

Constitutional Issues with the Strict Liability Act

This section of the opinion is dicta (ie, not relevant to the outcome of the case) since the District's claims under the Strict Liability Act were successfully defeated without requiring Constitutional analysis.  That said, the decision states unequivocally:

In short, if there were no other basis on which to adjudicate the legal sufficiency of  the claim in Count I, this Court would be compelled to grant the instant motion on  constitutional grounds.

The reasons for that determination are the Commerce Clause and the Due Process clause.  In essence, the legislation was intended to affect commerce in firearms nationwide, not merely within the District.  This claim of intent is supported with direct quotes from the Act's sponsor within the District's legislature while introducing the bill.  The Constitution grants the power to regulate interstate commerce to Congress, not to the District. 

There's a lot of argument on that point, but that's what it boils down to -- the District's absurd protests that the Act is not intended to be a regulatory scheme beyond the District's borders notwithstanding.
UPDATE: Clarified the discussion of the weapons above, hopefully reducing the confusion.

This post continues my analysis of the DC v Beretta decision in the DC Superior Court.  This is not the final resolution of the case; this count specifically deals with the claims of common law public nuisance raised by the case, outside of the District's strict liability law.

Count III: Public Nuisance

Historically, public nuisance claims were minor criminal offenses that interfered with the health, safety, comfort, convenience, or morals of the community.  They were not necessarily spelled out explicitly, but served as a way to punish conduct not otherwise explicitly forbidden but, after the fact, considered sufficiently annoying to the community as a whole to warrant action. 

Modern jurisprudence generally requires conformance to specific statutes for a public nuisance claim, and even more so for the abatement of such nuisances.  The executive branch of the city government is responsible for correcting conditions on property within its jurisdiction that have arisen in violation of law or of any regulation made by authority of law, and any reimbursement for such correction is to be obtained through taxation rather than lawsuit.  

That's actually a little scary -- it means that DC can correct a violation on your property against your will and assess a special tax on your property to recover the cost of the correction.  But the important point is that there is no statute allowing the Executive to engage in abatement of public nuisance outside the boundaries of the District.  And seeking reimbursement for a "public nuisance" not occurring within the District itself would do just that.  If manufacturing firearms is a public nuisance, the claim would need to occur under the the laws and jurisdiction of the manufacturer's corporation and facilities, not the District.

Insofar as the Assault Weapons Strict Liability Act purports to change this, it appears to conflict with the Commerce Clause of the Constitution -- discussed more later.  Furthermore, the statute does not grant authority for reimbursement of abatement expenses, merely money damages.

So, to summarize:

1. Defendents' conduct violated no laws of the District or outside the District.
2. Defendents' conduct violated no regulation or health and safety law (which would present cause for "abatement" damages).
3. There is no "abatement" that the District can perform, because all actions they are seeking to regulate take place outside the District; and thus there can be no costs of abatement.
4. The defendents have no ability to control the alleged nuisance.

As usual, there is discussion of the plaintiff's cited cases as they seek to defeat the defendent's motion to dismiss.  One particular case stands out; the plaintiffs cited an Illinois case that proceeded to trial on a public nuisance claim.  That case proceeded to trial based on an 1888 case, and similarly-dated ordinance, declaring public picnics and open-air dancing to be a public nuisance.  The plaintiffs' lawsuit was based on part upon drive-by shootings that had occurred at events that could be so described.

That's fairly described as an absurd result, and more importantly, one that is specific to that region and statute. 

Finally, the decision notes that the abatement claims might simply be an attempt to recover expenses allegedly due under other statutes, without meeting the requirements of those statutes.  Obviously such an attempt can't fly, if that's actually what the District was trying to do.

This post continues my analysis of the DC v Beretta decision in the DC Superior Court.  This is not the final resolution of the case; this count specifically deals with the claims of common law negligence raised by the case, outside of the District's strict liability law. 

Count II: Negligence

The industry lawyers attacked this theory of liability by suggesting simultaneously that the alleged injury was too remote to establish proximate cause, and that the plaintiffs had no actual duty which they failed to perform.

Proximate Cause

Proximate cause is a legal concept that applies to questions of liability.  In order to be liable for damages following an event, the defendent's actions (or, sometimes, failure to act) must be shown to be a proximate cause of the event.  To establish proximate cause, the plaintiffs generally need to show that:

1. The defendent's actions could be reasonably foreseen to result in injury;
2. The injury would not have occurred without the defendent's actions;
3. There are no subsequent superseding causes.
   

What most people don't expect is that the defendent's actions need not be the only cause or even the primary cause; they merely need to be one of the causes, without which the injury could not have occurred. 

The judge cites Ganim v. Smith & Wesson Corp., 780 A.2d 98 (Conn. 2001), which alleged similar public nuisance coimplaints associated with the criminal use of handguns.  That case was dismissed in the lower court; the plaintiffs appealed the dismissal of the public nuisance chance; the appellate court affirmed the dismissal, arguing that public nuisance claims are generally associated only with interference with real property or infringement of public rights and that neither applied to the case.

That's pretty clear.  The judge goes into detail on the proximate cause analysis, touching on some additional points of interest.

First, since part of the claims are based on BATFE trace data making the manufacturers aware of the path from their sale to a distributor to criminal misuse, it is important to note that trace data does not notify the manufacturer of an illegal act by a dealer or distributor.  Just because a particular dealer or distributor has a lot of firearms traced does not mean there was an illegal or negligent act.

Second, it's difficult to determine whether, or how many, incidents could have been avoided with different policies.  If a requested change of policy would not have prevented the injury, that policy could not have been a proximate cause -- the injury would have happened anyway.

Third, the plaintiffs don't even try to link a particular plaintiff with specific injuries or costs.  That would leave assigning percentage of liability among the defendents up to the court, which would be a substantial burden.  The absence of a specific link between injury and defendent also means that defendents could not challenge a particular claim according to defenses appropriate to that claim arising from the conduct of those injured; in other words, negligent or reckless behavior by plaintiffs, the injured parties, or intervening individuals (distributors and dealers) could not be invoked to protect the manufacturers from liability.

As the judge puts it:

Not one of the individual plaintiffs has stated his or her claim in such a way as to identify a particular defendant as being responsible for his or her injury or death. No plaintiff can prevail in a lawsuit against a group of defendants by essentially throwing a dart at the group and never making an assertion that any one of them was connected to the  injury.

Absence of Legal Duty

The absence of legal duty analysis is lengthy.  As the DC Court of Appeals expressed it, ?In general no liability exists in tort for harm resulting from the criminal acts of third parties, although liability for such harm sometimes may be imposed on the basis of a special relationship between the parties.?

The plaintiffs set forth no evidence suggesting a special relationship between the criminals and the firearms industry.  In the absence of such a relationship, there can be no liability -- the intervening criminal act is a superseding cause. 

There is binding precedent within the District's courts on this issue: Delahanty v. Hinckley, 283 U.S. App. D.C. 384, 900 F.2d 368 (1990), a similar case in some respects arising out of the assassination attempt on President Reagan.  Although the plaintiffs cite precedent from other circuits, such precedent cannot overcome the local precedent at this level.  In addition (and as dicta) the decision lays out distinguishing factors from each of the outside precedents:

1. Hunnings v Texaco: A distributor is sued for injury to a child who consumed mineral spirits stored in a reused milk container; Delahanty establishes that there is no "duty to warn" of the dangers of criminal misuse of a handguns.  If there is no duty to warn, there can be no duty to prevent criminal or negligent misuse. 
   
2. Suchomajcz v Hummel: Manufacturer of chemicals used in fireworks assembly kits is sued following injuries to minors using the kits.  The case was initially dismissed, but the dismissal was overturned because the existance of a special relationship between the chemical manufacturer and the kit manufacturer was an issue of fact that required a jury.  The plaintiffs in DC v Beretta allege no special relationship.
   
3. Moning v Alfono: A child struck in the eye with a slingshot bullet sued his playmate , along with the manufacturer, retailer, and wholesaler of the slingshot.   The trial court directed a verdict in favor of the defendents, which was reversed, as the question of whether the defendents had created an "unreasonable" risk of harm due to their purposeful decision to market slingshots to children.  That question was a factual question for a jury.  In DC v Beretta, there is no allegation that defendents are specifically marketing to criminals or negligent customers.

There is some additional discussion of the precedents relevant to this specific case in other circuits.  It's worth the read if you're interested.  The thing that stands out to me is how poorly the various lawsuits have fared, even in districts that are normally considered anti-gun.  New York, California, New Jersey... all locations where such suits have been dismissed before reaching trial.

A notable exception is City of Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d 1136 (Ohio 2002) before the Supreme Court of Ohio, which discarded the "special relationship" requirement.  The decision in DC v Beretta criticizes City of Cincinnati v Beretta in fairly strong terms.

The Ohio opinion is an elegant example of ignoring that ?a duty and the corresponding liability it imposes do not rise from mere foreseeability of the harm.? Hamilton v. Beretta, supra, at 1062 (emphasis in original). The decision in City of Cincinnati is an aberration from the mainstream of jurisprudence on this important subject.

The decision concludes this section by noting that it is independently convinced that there is no legal duty alleged.  In other words, even in the absence of binding precedent it would still have dismissed the claims on this point.

The decision (101 pages) of the DC Superior Court dismissing the city's lawsuit in DC v Beretta U.S.A. Corp.  The lawsuit springs from laws explicitly passed by DC's legislature to enable them.  When discussing firearms in DC, it's important to understand the background: DC bans all handguns owned by private citizens (it's still possible for security guards to possess them, if licensed, but they may not be stored in the home).  Pretty much any semi-automatic, magazine-fed firearm is banned.  Remaining firearms (shotguns and bolt-action hunting rifles) are licensed and registered according to onerous procedures.

With that in mind, it's laughable for the District to pass laws imposing strict liability on manufacturers of legal products outside of their jurisdiction when the manufacture, sale, and possession of those products is forbidden within the District's jurisdiction.  The vast majority of those possessing a firearm in the District of Columbia are doing so illegally.  The District compounds their hubris by filing suit with plaintiffs who do not even know which manufacturer produced the product with which they were shot.  They were shot with a "firearm" and that's enough to sue everyone who manufactures a "firearm".  Insane.

The District is a party to the suit and wants financial compensation and injunctive relief -- that is, they want to be able to dictate policy to the manufacturers as a result of this lawsuit.  The individual plaintiffs want money.  The case came before Judge Long (Civil Action 0428-00), and his decision was issued in response to a Motion for Judgement on the Pleadings.  For clarity, this decision does not represent the final outcome of the case; I'm including it here for background purposes.

The defendents in this case consist of a laundry list of firearms manufacturers, both US and foreign:

1. Beretta U.S.A. Corp.
2. B.L. Jennings, Inc
3. Browning Arms Company
4. Bryco Arms, Inc
5. Carl Walther GMBH
6. Century International Arms, Inc
7. Colt's Manufacturing Co., Inc
8. Davis Industries, Inc
9. Forjas Taurus, S.A.
10. Glock, Inc
11. Glock GMBH
12. H&R 1871
13. Heckler & Koch, Inc
14. Heckler & Koch, GMBH
15. Hi-Point Firearms
16. K.B.I. Inc
17. International Armament Corp.
18. Navegar, Inc
19. Norinco Sports, U.S.A. Inc.
20. Phoenix Arms, Inc.
21. Pietro Beretta SP.A.
22. Sigarms, Inc
23. Smith & Wesson Corp.
24. Sturm, Ruger & Company, Inc
25. Taurus International Manufacturing, Inc.
26. DOES 1-100
    

That last line means, in essence, that the District expects to discover the identity of additional defendents during the course of the case and add them as defendents as it does so.

The Motion for Judgement on the Pleadings is held to the same standard as a Motion to Dismiss for failure to state a claim upon which belief can be granted; it's a very high standard to meet, and (if successful) cuts the trial short without proceeding any further into the case (eg, no argument or evidence on the merits of case).  The motion must succeed or fail based on the contents of the plaintiff's pleadings, which are assumed to be true for the purposes of the motion.  I won't keep you in suspense; here's the most important paragraph of the ruling:

Based upon the following analysis of relevant case law and bedrock legal principles, this Court concludes that the arguments of the defendants are compelling as to the entry of judgment in their favor. The plaintiffs? myriad claims herein are burdened with many layers of legal deficiencies. The defendants are entitled to judgments in their favor even if every allegation in the Complaint is true.

In other words, there's no question of fact which would require a trial to determine; even if the plaintiffs' allegations are true, there is no justification for relief.  They are, in short, out of luck -- at least before this judge.  That's a clear win for our side, resulting in a dismissal of the case at this level.  (Inevitably, the plaintiffs appealed the dismissal; more on that later).

It's worth noting here that the model for this lawsuit was the various state-level tobacco lawsuits, which were successful beyond the wildest dreams of the plaintiffs.  Those lawsuits in effect sought huge monetary damages from extremely well-off tobacco companies as "compensation" for the "public health effects" of smoking.  The claim was that the tobacco companies had concealed the health risks of their products with false and misleading advertising and otherwise knowingly sold products with negative health consequences to supposedly unsuspecting consumers (and never mind that the government had ordered that tobacco products have warning labels). 

The claim was bolstered by insider testimony from industry executives, and the intent was to force the industry to settle the lawsuits rather than risk huge judgements that would bankrupt them.  Overall, the tactic was successful; the industry preferred to settle and continue in business than risk a dramatic loss.  With non-durable, addictive products, they could afford to raise prices in order to recover the amount of their settlement. 

But the basic idea was to win huge monetary awards for the state governments in conjunction with conduct restrictions that would not pass a state legislature.  That's the same strategy that is evident here, but there are some differences. 

First, the firearms industry is not wealthy; the products are durable, low-margin, simple to manufacture, and already broadly available.  The firearms industry does not have the money for huge payoffs. 

Second, the tobacco companies have a product which has health risks associated with its normal and proper use; firearms are generally very safe for the person using them.  The majority of firearms injuries are the result of criminal intent, suicide, or negligence, although there are of course genuine defective-product claims which have been adjudicated normally. 

Third, the tobacco industry faced allegations of actual wrongdoing supported by evidence from turncoat executives.  The firearms industry is heavily regulated and generally makes a substantial effort to remain within the law.  The testimony of Robert Ricker, ex-firearms-industry-lobbyist, is insufficient to be analogous; the worst he can allege is that the industry did not go above and beyond the strict requirements of the law. 

Fourth, all named plaintiffs in this case suffered their firearm injuries in the course of a crime.  One set of plaintiffs was shot in the course of a robbery, and another set were killed or injured in a gang shooting.  That intervening criminal act normally places all liability on the criminal.

As a result of those differences, in order to make this claim credible at all, the District passed a law imposing strict liability on the firearms industry.  Without such a law this lawsuit would be laughed out of court.

Here's the relevant law, the Assualt Weapons Strict Liability Act of 1990:

Any manufacturer, importer, or dealer of an assault weapon or machine gun shall be held strictly liable in tort, without regard to fault or proof of defect, for all direct and consequential damages that arise from bodily injury or death if the bodily injury or death proximately results from the discharge of the assault weapon or machine gun in the District of Columbia.

Since this is the District of Columbia, remember that a "machine gun" is defined as a semi-automatic firearm that can fire more than 12 shots without reloading.  Since almost all semiautomatic firearms can accept magazines holding more than 12 rounds, just about any semiautomatic firearm will trigger this law.  The law's definition of an assault weapon enumerates specific weapons by their trade names (eg, the "Street Sweeper"). 

Here's the claim for damages:

Defendants are strictly liable to Plaintiff District for (1) health care costs and Medicaid expenses the District has incurred for care and treatments of victims of this gun violence and (2) costs of other assistance and compensation provided or paid by the District to police officers, firefighters, and other District employees who have suffered injuries from this gun violence, which costs are recoverable under District statutes. D.C. Code §§ 1-624.31, 3-502, and 4-502. Defendants also are liable for any other costs incurred by the District that are recoverable by statute, in equity, or under common law.

Given the level of gun violence in the District, that's pretty much a blank check.  It is not limited to the specific plaintiffs in the case.

In order to try to link the defendents to the victims, the District describes how the firearms enter the District (where, as you will recall, the possession, manufacture, and sale are strictly regulated and in many cases banned entirely).  They cite the usual boogeymen; straw purchases, "unlicensed dealers", gun shows, and stolen firearms.  The possible remedies that the District alleges could have been used by the manufacturers to reduce their liability include a wish list of gun control policies; everything from "one handgun a month" to tracking individual sales.

So what are the arguments that won the day?

1. Count I (strict liability)
1. Deficencies in the complaint under the AW Strict Liability Act.
2. The Assault Weapon Strict Liability Act is unconstitutional, as it seeks to regulate interstate commerce.
2. Count II (negligent distribution)
1. No common law duty has been breached.
2. The claims are too remote to establish proximate cause.
3. Count III (public nuisance)
1. Public nuisance claims normally rest upon land bearing such a public nuisance, which in this case does not exist.
   
2. No statute exists permitting such a lawsuit.
3. Common-law public nuisance claims do not cover the circumstances of this case.
4. Count IV (subrogated individual claims)
1. District failed to plead specific cases as required by law; there is no right to aggregate claims.
5. Count V (reimbursement for cost of public services)
1. Case law explicitly precludes the District from seeking money damages to reimburse it for the cost of public safety services ("professional rescuers doctrine").
2. Collective liability and market share calculations as a basis for damages is invalid.
   

There's too much additional material to cover in a single post.  Additional posts with the details of each count will follow.

This is the petition for writ of certiori to the Supreme Court.  It presents the following questions:

1. Whether the District?s statute, which has the practical effect of deterring firearms manufacturers from making and selling their lawful products elsewhere in the country, violates the Commerce and Due Process Clauses of the United States Constitution, and contravenes basic principles of federalism.
2. Whether the Commerce Clause?s per se ban on ?direct regulation? of out-of-state commerce is limited to statutes explicitly regulating price or whether it applies to all types of extraterritorial regulation.

The answers that our side wants should be obvious.  The District's Strict Liability Statute should be ruled unConstitutional because the District simply does not have the authority to regulate the matters that Statute seeks to regulate.  States can regulate commerce within their borders; the Federal Government can regulate interstate commerce; the District is entirely a creature of the Federal Government and has no authority outside the District of Columbia itself.  It certainly cannot usurp the power of Congress.

It's remotely possible that a twisted interpertation of the enabling legislation for the District's government might be construed to delegate some of Congress' interstate regulatory power within that government, but I doubt it -- and if there is such a tortured interpertation possible, it can't possibly have been intended. 

So how does the District expect to prevail, if their Statute is unConstitutional on its face?  Simple: remember how they view the case.  They believe that the firearms manufacturers are maliciously and negligently distributing firearms to the areas surrounding the District (primarily Virginia; Maryland's firearm laws are rather tight already), deliberately oversupplying those markets in order to ensure a ready supply of firearms to the criminal market within the District itself. 

If you assume malice, it becomes a different question.  Consider an individual who sets up a cannon in Virginia and regularly fires cannonballs across the border into the District.  It's perfectly legal (at least in this hypothetical) to fire the cannon in Virginia, so long as you don't then damage someone else's property... in Virginia.  But since the cannonball was fired at the District, the damage it does is within the District's jurisdiction.  And if they can't arrest the person shooting the cannon in Virginia, they can make him liable for the damage if his cannonballs actually damage anything.

That's the theory that the District is working from, or at least the only one that seems to make any sense. Manufacturing firearms, to the District, is an action that involves actual malice or at least negligence.  Once manufactured, distributing those firearms to dealers loads the cannon; and private sales propel the firearm into the private sector, where they may well cross the border and do harm.  In fact, the District considers the very presence of the firearm within its borders to inevitably result in harm.  That's how they are trying to push the causal chain backwards to reach the manufacturers; if it is inevitable that manufacturing a firearm leads to harm, then the intervening events are nothing more than successive elements in some Rube Goldbergian contraption with a criminal use as the final result. 

This is something of a relevation to me; I feel that I finally understand how the lawyers arguing these cases for the gun control organizations are thinking.  It's such a foreign viewpoint that I'm not surprised it took me so long to pick up on it.  And believe me, looking out at the world through this particular viewpoint is not pretty.

At any rate, so long as you are actually talking about cannonballs shot across a border, it doesmake a certain amount of sense.  The cannonball is fired in Virginia and the laws of physics dictate what happens.  The problem, of course, is that the idea of shooting cannonballs is much more direct causation than anything actually being alleged in this case; the flight of a cannonball, governed by the equations of physics, is not even remotely comparable to the often-lengthy chain of sales, thefts, and criminal acts involved in getting a legally-manufactured firearm into the hands of a criminal within the District.

The petition calls out a few points of the Strict Liability Act worth examining, especially since the earlier filings that I have posted do not have much discussion of this aspect.  In particular, the Act contains an exception for "assault weapons" originally sold to law enforcement, as well as for "assault weapons" used by criminals to injure themselves.  Neither exception applies to "machine guns" (remember, the District considers any magazine-fed semiautomatic to be a machine gun). This leads to the possibility of finding, say, Beretta, liable for the medical care applied to a criminal who shoots himself with a police offcer's stolen firearm while trying to murder said police officer. 

I can't think of any reason to apply the exception only to "assault weapons" but not to "machine guns", except simple error in drafting the law.  Still, that is what the law says, and clearly that can lead to absolutely absurd results.  The exception itself was clearly intended to allow manufacturers to continue to sell to police officers, since the District would undoubtedly prefer not to face its disarmed peasantry without a substantial disparity in armament.  Under the circumstances I am suprised any manufacturer would agree to sell to anyone in the District at all, but that's the free market for you...

The petition proceeds to review the original Superior Court decision holding the Strict Liability Act unConstitutional.  In short, it is unConstitutional because:

1. It sought to regulate conduct occurring entirely outside the District's jurisdiction;
2. It is impossible for the Act to have only an "incidental" effect on interstate commerce (Pike v. Bruce Church, Inc., 397 U.S. 137 (1970)), since the only way to avoid liability under the act is to go out of business.
3. While public safety is a valid state concern, police powers cannot be exercized extraterritorially even in pursuit of the local interest in public safety.   In other words, you can't handwave away the Due Process requirements by invoking public safety.

Good points all, but they did not convince the Appeals Court.

One way that the petition seeks to reframe the issue is by suggesting that the balancing test between the local benefits of the statute and the burden on interstate commerce (from Pike, above) should not be applied at all.  The Appeals Court applied that test and found that the local benefits outweighed the burden (a result that is absurd on its face -- but oh well; that's what you get when you allow a court to make a value judgement).  The petition points out that when a statute "directly regulates" commerce in other States, the Court doesn't bother to apply a balancing test; it merely strikes down the statute. 

If successful, that would avoid the balancing test altogether.  That would require viewing the Strict Liability Act as direct regulation, something that isn't quite obvious on its face.  Remember that the Act purports to assign liability for the consequences of criminal acts that occur inside the District to parties operating outside the District.  It is only in combination with the District's draconian gun control laws that the intent of the Act becomes clear; it must be intended to affect interstate commerce because there is (almost) no legal intrastate commerce in firearms! 

And, in truth, the industry has already cited the statement of intent for the law, which explicitly speaks of regulating commerce activity outside the District.  Denying that is nothing more than partisan handwaving. 

The same basic argument is applied to the Due Process clause as well, this time citing BMW v Gore.  That case stated: "each State has ample power to protect its own consumers, [and] none may use the punitive damages deterrent as a means of imposing its regulatory policies on the entire Nation."  The DC Appeals Court distinguished from that case by claiming it applied only to punitive damages, not compensatory damages. 

The point is also made that even if the Act is intended to remedy injuries occurring within the District's jurisdiction, that is not enough to save it if the practical effect of the Act is to control conduct within the boundaries of the State.

The petition then makes the case that the lower courts are "divided and confused" about how, and whether, to apply the "direct regulation" test.  That's only of tangential interest to us, so I will not analyze it.  The same applies to the jurisdictional argument.

I would not be surprised if the Supreme Court chooses to take this case.  If they take it, I think the industry has an excellent chance of winning... depending, of course, on exactly who is sitting on the Court that hears the case.  Rehnquist would probably have been a solid voice on our side; Roberts is supposed to be similarly strict on commerce clause questions (confirmation-hearing waffles about Lopez aside).  No hints of a replacement for O'Conner, but we are unlikely to see Bush nominating anyone at serious risk of waffling on this issue.

That result, if we get there, might be the killing blow to the various other pending lawsuits.  That will depend on exactly how those lawsuits are structured.  The District's Strict Liability Act, handgun ban, and its pseudo-State status make it somewhat unique among plaintiffs.  However, those are only peripheral to this case, and a Supreme Court precedent on the permissibility of liability might at the least require future lawsuits to impose liability only on firearms sold within the appropriate jurisdiction.

That said, the Supreme Court is in flux right now, and rulings are likely to be unpredictable for the next few years.