DC v Beretta: The Court of Appeals reverses in part

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:

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.
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.
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.
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.

Posted on 2005-08-29 21:58:20.0 by matthew@triggerfinger.org

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