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.