[Eugene Volokh, May 11, 2009 at 4:43pm] Trackbacks
Ninth Circuit Panel Applies and Upholds the Federal Statute Preempting Various Lawsuits Against Gun Manufacturers,

in Ileto v. Glock, Inc. (just handed down today). I might not have time to say much about this, but I thought I'd give the pointer, and note that the opinion was by Judge Graber joined by Judge Reinhardt, with a partial concurrence and partial dissent by Judge Berzon. For more on the underlying tort theory, which the Ninth Circuit accepted before Congress passed the Protection of Lawful Commerce in Arms Act, see the four posts that begin here.

Note that the panel did hold that the Act doesn't apply to one of the defendants, a foreign manufacturer that isn't "licensed to engage in business as such a manufacturer under [federal law]," to quote the Act; but while there was some argument about that, the result seems to be pretty clearly correct. Thanks to How Appealing for the pointer.

Allan (mail):
Interesting decision on retroactivity of legislation, I would think. The 9th circuit seems to say that legislation can be retroactive if it just serves to shift the burden from one party to another.

So, in this case, Congress could repeal the law retroactively.

And Congress could also retroactively change any law that served to pre-empt a law suit. I think that should give one pause. Slippery slope, indeed, for business. A veritable double-edge sword.
5.11.2009 5:05pm
geokstr (mail):

Allan:
Slippery slope...

Nope. Can't be. These are mythical creatures, sort of like pink unicorns, as has been pointed out to us by many commenters here.

Except, that is, in the extremely rare, to the point of vanishingly small, cases where they slope to the right, in which case they immediately and magically morph into the most dangerous things imaginable, destined to lead to George Bush declaring himself Emperor for life.

That didn't happen? Oh wait...
5.11.2009 5:46pm
rosetta's stones:

Slippery slope, indeed...


And the dissent to this retroactivity seems plain-spoken and considered:


The majority tacitly breaks new ground in deciding these
questions. It need not — and should not — do so. The canon
of constitutional avoidance counsels that we should “construe the statute to avoid [serious constitutional questions] unless such a construction is plainly contrary to the intent of Congress.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg.
&Constr. Trades Council, 485 U.S. 568, 575 (1983); see also
Clark v. Martinez, 543 U.S. 371, 380-81 (2005); NLRB v.
Catholic Bishop of Chicago, 440 U.S. 490, 507 (1979). In
ILETO v. GLOCK 5591 accordance with that maxim, I would adopt a different, but in my view equally supportable, reading of the ambiguous statutory language, which would permit the Plaintiffs’ suit as against Defendants Glock and RSR (“Defendants”) to go forward. I therefore respectfully dissent from the majority’s discussion of Plaintiffs’ substantive due process challenge, as I would not decide the question, and from its holding that their lawsuit does not come within the PLCAA’s predicate exception.

.
.
.

But the PLCAA is unlike those other statutes in critical
respects. We have never upheld against substantive due process attack a federal statute with precisely the PLCAA’s constellation of characteristics: (1) It completely extinguishes an individual litigant’s ability to litigate a cause of action, rather than limiting the amount of recovery or the procedure for bringing suit, and it leaves no alternative channel by which the individual may address his injury; and (2) the individual’s cause of action is for an injury that would be cognizable under state common law, and it was filed and pending at the time of the federal statute’s enactment.4 To hold such a statute constitutional on rational basis review, despite the absence of any provision for alternative forms of redress, is to step onto new and uncertain constitutional territory.
5.11.2009 5:54pm
Tony Tutins (mail):

It completely extinguishes an individual litigant’s ability to litigate a cause of action, rather than limiting the amount of recovery or the procedure for bringing suit, and it leaves no alternative channel by which the individual may address his injury

Not so. The plaintiffs can always sue Buford Furrow, the Aryan Nations, the hospitals that released him, the judge who didn't commit him, and the manufacturer of the van he took from Washington to LA, General Motors.

It was odd to read in the dissent that a California cause of action could arise from events that took place wholly in Washington state, because they could have violated California law had they taken place in that state.
5.11.2009 6:16pm
yss (mail):
I think the poor people are distributing their children negligently. Those people responsible for producing the 1.5% who commit 90% of violent crimes should be liable in tort to the state and out of business.
5.11.2009 6:38pm
Clayton E. Cramer (mail) (www):

The plaintiffs can always sue Buford Furrow, the Aryan Nations, the hospitals that released him, the judge who didn't commit him, and the manufacturer of the van he took from Washington to LA, General Motors.
Of course, that would raise the horrible reality that at least part of why these random mass murders were shocking when I was a young adult--and are not even surprising anymore. And not just in the U.S., but even in European countries with pretty tight regulation of firearms. The core problem is the wonderful theory, but unpleasant reality, of deinstitutionalization of the mentally ill. The bulk of these tragedies have involved people who were recognized as mentally ill, but either not hospitalized, or held only briefly, before they went out and committed a mass murder against complete strangers.
5.11.2009 6:49pm
Larrya (mail) (www):
Interesting decision on retroactivity of legislation, I would think.
A. The law prevents current lawsuits from proceeding and bans future suits. Where is the “retroactive” provision?

B. Retroactive legislation is bad if it keeps gun manufacturers from being sued, but okay if it retroactively makes people ineligible to own firearms, as the Lautenberg Amendment did.
It completely extinguishes an individual litigant’s ability to litigate a cause of action, rather than limiting the amount of recovery or the procedure for bringing suit, and it leaves no alternative channel by which the individual may address his injury
Because the gun manufacturers should be held liable somehow!

Really?
5.11.2009 7:24pm
Crunchy Frog:
I knew Joe Ileto in passing - he worked at the same post office as my wife. Went to his funeral which was hijacked by Brad Sherman, Zev Yaroslavsky and the excrable Diane Watson for their own political aggrandizement. Seemed to be a pretty decent guy. So it continues to sadden me that his family has chosen to ride the litigation gravy train in this fashion.

Just one thing though - Reinhart was in the majority??? Wow. Wouldn't have guessed that in a thousand years. Maybe senilty works backwards in this case.
5.11.2009 7:26pm
Clayton E. Cramer (mail) (www):

Seemed to be a pretty decent guy. So it continues to sadden me that his family has chosen to ride the litigation gravy train in this fashion.
Someone should be held responsible. But those officials who released him in Washington State are, I believe, protected by sovereignty immunity. Furrow has nothing. If you could sue the ACLU for their part in causing deinstitutionalization, that might be entertaining, but there's a very indirect connection between the well meaning fools that filed suits back in the 1960s and 1970s and the release of Furrow when he was BEGGING to be hospitalized because he thought he was going to go off on a mass murder spree.
5.11.2009 7:37pm
Bruce Hayden (mail):
But the PLCAA is unlike those other statutes in critical respects. We have never upheld against substantive due process attack a federal statute with precisely the PLCAA’s constellation of characteristics: (1) It completely extinguishes an individual litigant’s ability to litigate a cause of action, rather than limiting the amount of recovery or the procedure for bringing suit, and it leaves no alternative channel by which the individual may address his injury; and (2) the individual’s cause of action is for an injury that would be cognizable under state common law, and it was filed and pending at the time of the federal statute’s enactment. To hold such a statute constitutional on rational basis review, despite the absence of any provision for alternative forms of redress, is to step onto new and uncertain constitutional territory.
First, there is redress, just not against federally licensed manufacturers or distributors, which is why China North was left in the suit. And, of course, they could litigate against those who are traditionally culpable under tort law, such as the shooter, etc.

Secondly, what the court did not mention, but was obvious, was that the Supremacy Clause was being utilized here. Congress determined that suits like these interfered with Interstate Commerce (of a federally regulated industry). Allowing the suits to proceed would propagate this interference. Besides, there was no final verdict on the merits, and so there was no property interest being lost.

The dissent here seems to be taking the view that just because the litigants were able to file suit before Congress was able to enact a law asserting its Constitutional supremacy here in regulating Interstate Commerce, that the cases should be allowed to proceed, despite them being the express object of that law. And that is what the dissent really didn't address, that Congress had rationally declared this to be an interference of Interstate Commerce.
5.11.2009 7:39pm
Soronel Haetir (mail):
I would be interested in some form of analysis of the dissenting judge's other rulings. Would be interesting to have some baseline to measure just how results oriented this decision was.
5.11.2009 7:58pm
Allan (mail):
It is retroactive in that it precludes lawsuits resulting from actions that occurred prior to the passage of the law. That was the problem here: when the law suits were filed, there was no pre-emption, now there is.

The law changed the rules in the middle of the game.
5.11.2009 10:10pm
Tony Tutins (mail):

It is retroactive in that it precludes lawsuits resulting from actions that occurred prior to the passage of the law. That was the problem here: when the law suits were filed, there was no pre-emption, now there is.

The law changed the rules in the middle of the game.

I'm going to disagree, because the entire legal theory -- that manufacturers and vendors were somehow responsible for injury caused by legal products that functioned properly as designed -- was brand new.

Did any manufacturer ever lose one of these suits?
5.11.2009 11:47pm
Soronel Haetir (mail):
Even more amazing, msnbc.com mentioned it on their first read blog and the first comment is supportive of the court ruling.
5.12.2009 2:00am
Brett Bellmore:

I'm going to disagree, because the entire legal theory -- that manufacturers and vendors were somehow responsible for injury caused by legal products that functioned properly as designed -- was brand new.


Exactly. The idea that this law preempts 'injuries which "would be cognizable under state common law" is way off base. As far as I know, no other product has been subject to lawsuits based on the same theory. If somebody knows of a case of an auto manufacturer being sued because their car was used as a getaway vehicle, I'd be interested to know of it.

Indeed, the people filing these suits were not shy about their intention being to harm the industry with legal expenses even if they lost every single suit.
5.12.2009 7:32am
rosetta's stones:
If this legal theory is "brand new", does that imply that this portion of the dissenting judge's opinion is false? Indeterminate? Or just swept away by the Congress?


(2) the individual’s cause of action is for an injury that would be cognizable under state common law...


I sure do dislike legislation and court decisions that are platformed upon "commerce", it just seems like this opens up everything to mischief. Right about now, they're printing money and buying Chrysler with it, and somewhere in the stack of paper, I bet it says it's all about "commerce".
5.12.2009 8:27am
Allan (mail):
Although the theory was novel, it is a cognizable legal theory.

It was possible that, if the plaintiffs could show that the defendant's intent was to produce firearms for purchase by criminals, that the plaintiffs could prevail. After the change in the law, intent did not matter.

That is, now, firearm manufacturers can produce arms specifically so that criminals can be armed, and there will be no liability. (The manufacturers, of course, would sell the weapons legally in the first instance).

I am not expressing an opinion on whether the law is good. It is just that it is clearly retroactive in nature.
5.12.2009 10:59am
LarryA (mail) (www):
Did any manufacturer ever lose one of these suits?
In the law, even if your case prevails, you lose. The stated purpose of these suits was to bankrupt companies, not win cases. Note that the process leaves plaintiffs in the cold.

This was gun control, pure and simple.
That is, now, firearm manufacturers can produce arms specifically so that criminals can be armed, and there will be no liability.
Firearm manufacturers must comply with loads of federal, state, and local regulations designed to keep criminals from getting guns. (At least the laws say so on the label.) The manufacturers were therefore being sued for obeying the law. How is intent relevant?
5.12.2009 11:56am
Tony Tutins (mail):

if the plaintiffs could show that the defendant's intent was to produce firearms for purchase by criminals

They could do so only by bending causation into a pretzel: Glock sold the firearms in question to a police department. The police department sold off the guns when they bought replacements, making them unwitting tools of the supposed Glock policy. Similarly, second-hand police cruisers make the best getaway cars.


Although the theory was novel, it is a cognizable legal theory.

I can't find a definition of cognizable that's not circular. The only thing that's certain is that the statute assures that the theory is not cognizable now.
5.12.2009 12:00pm
Matthew Carberry (mail):

Similarly, second-hand police cruisers make the best getaway cars.


As noted in the landmark case "State of Illinois v. Jake Blues and Elwood Blues, 1980"
5.12.2009 4:52pm
whit:

As noted in the landmark case "State of Illinois v. Jake Blues and Elwood Blues, 1980"



case was thrown out because it was deemed a violation of right to religious expression

after all, jake and elwood were on a mission from god.
5.12.2009 7:16pm
C. Norris (mail):
"The bulk of these tragedies have involved people who were recognized as mentally ill, but either not hospitalized, or held only briefly, before they went out and committed a mass murder against complete strangers."


Indeed Mr. Cramer. The "bulk" is so prominent in the statistical analysis of these tragedies that the few exceptions to the rule of the mentally ill being involved do eventually prove the rule. Lee Harvey Oswald was institutionalized at 14 years old and found to be mentally impaired. The same with Pres. McKinley's assassin, Leon Czolgosz, in 1901 and on to the latest recent shootings.

The irony of the last 50 years is that the precipitating legislation responsible for these tragedies in the US is legislation that was sponsored and promoted and eventually signed into law by JFK three weeks before his assassination. Specifically the "Community Mental Health Centers Act of 1963". JFK's speech regarding this legislation can be found at the c&p link below to the UC Santa Barbara archives:

http://www.presidency.ucsb.edu/ws/index.php?pid=9546 .

The irony and naivety of JFK in this speech is profound.
5.13.2009 3:01pm

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