(Take two.) Apologies for the shameless self-quoting, but I thought I'd pass along some of my comments on the Ninth Circuit gun manufacturer liability decision. Since they're from my Weblog, they're in reverse order from the order in which I posted them.
Eugene
No trial, no proof, you lose your business -- that's what the law says: I mention this a couple of posts down when talking about gun manufacturer liability and federal preemption, but I think this is worth stressing independently as well.
The heart of the Ninth Circuit's negligent distribution theory is that gun manufacturers are distributing guns in an unreasonably dangerous way. We're not saying guns can't be distributed at all, the panel says; the manufacturers just have to distribute them in ways that decrease the likelihood that guns fall into criminals' hands.
That sounds good in general, until you get to the details. The Ninth Circuit's decision is short on details about what exactly the gun manufacturers are doing wrong. Clearly selling guns knowing that some of them will end up in the hands of criminals isn't enough: That, after all, is equally true of alcohol, knives, cars, baggies, and a variety of other products.
Here's the most specific point that the Ninth Circuit makes. (There are others, two of which I mention a few posts down, but this is the most concrete one)The ATF has provided Glock with the names of the distributors who are responsible for the sales of guns that end up in the hands of criminals, but Glock has ignored the information and continues to supply these same distributors.Sounds bad, no? But note exactly what is being said. The ATF has not told Glock that these distributors are losing their federal firearms licenses. It hasn't told Glock that they're under indictment. It hasn't told Glock that ATF has found probable cause to believe they are acting criminally, or even negligently. It has only told Glock that somehow -- quite possibly with no fault on the distributor's part -- a disproportionate number of the guns are ending up in criminals' hands.
Maybe that's because the distributor is indeed acting criminally or negligently. But maybe he just sells guns in a part of town where there's an unusually high number of criminals; he may be acting completely properly (he can't tell which buyers are criminals or people buying on behalf of criminals, and which aren't) but it turns out that some fraction of the guns end up in criminals' hands.
To exclude the distributor under these circumstances, I think, would be a form of redlining: He'd lose his livelihood because of the part of town that he's in, and other residents (who may need guns to protect themselves from their criminal neighbors), would find it much harder to get such guns. If Glock did this on its own, it would be accused of unethical conduct, maybe even race discrimination (if the crime rates in the area are correlated, as they often are, with race). But that's what the Ninth Circuit says Glock must do, on pain of megabuck liability.
If the California legislature enacted a law saying that manufacturers had to cut off distributors in such situations -- with no proof, whether beyond a reasonable doubt, by a preponderance of the evidence, or anything else, of the distributor's misconduct -- I think people would quite properly object. There'd be zero due process here, zero protection for the distributor's rights, zero opportunity for the distributor to show that this isn't his fault, and zero concern for the distributor's lawful customers.
I expect that this would arouse a lot of opposition. Maybe it would also arouse support: Maybe legislatures would conclude that the interest in fighting crime justifies this extraordinary rule. So far, legislatures haven't been swayed by such arguments; remember that the plaintiffs are stating a general negligent distribution theory precisely because there are no specific statutes prohibiting Glock's conduct. But maybe some day they would be.
But here the Ninth Circuit just imposes this sort of rule on its own, because of the views of two unelected and unaccountable judges (this was a 2-1 panel decision). And there's not a word of concern about whether it's fair to the law-abiding distributors throughout the nation (not just in California) who, under the Ninth Circuit's decision, would essentially lose their small businesses with no trial and no proof that they did anything wrong.
Alcohol manufacturers sued: Alcohol manufacturers, it is claimed, "knowingly particiatepate in and facilitate the secondary market where persons who are illegal purchasers . . . . obtain their alcohol." (That secondary market happens when people who are over 21 buy alcohol, and then sell it to, give it to, or share it with, their friends.)
They "fail to exercise reasonable care to protect the public from the risks created by" this: For instance, even though they know that some distributors sell a disproportionate amount of the alcohol that ends up in minors' hands -- those would be liquor stores and supermarkets in college towns, and near other concentrations of under-21-year-olds -- they "continue[] to supply these same distributors." They "create[ an alcohol] market that is oversaturated," in that they know for a fact that there's more alcohol sold in the U.S. than is needed to serve the lawful desires of American adults (by definition, since some of the alcohol does end up in the hands of minors.)
They "fail to utilize basic training instruction that would help dealers and distributors recognize straw buyers or avoid distribution to illegal purchasers." Apparently they're so ruthless that all they expect their dealers to do is card their customers, rather than developing elaborate profiles of likely straw buyers, and demanding as a contractual matter that distributors not sell to people who fit that profile (even though it's perfectly legal under state law for people to buy alcohol when they fit that profile).
That's why whenever someone is killed by an underage drunk driver, or victimized by a crime committed by someone under 21 who was drunk, they are suing alcohol manufacturers -- and the Ninth Circuit says that they should win.
OK, that's not exactly right; what I've just said above is nearly exactly true for guns under the Ninth Circuit decision. There are no lawsuits against alcohol manufacturers. Yet. But the logic of the Ninth Circuit's decision seems exactly applicable to alcohol manufacturers. If you think the result is silly -- or even unduly restrictive of liberty, because it will interfere with some lawful alcohol users' ability to buy alcohol -- then it's equally so for guns.
Incidentally, the best estimates I've heard suggests that about as many innocent bystanders are killed as a result of the misuse of alcohol each year in the U.S. as a result of the misuse of guns. The total number deaths, including self-inflicted ones, is three times more for alcohol than for guns.
Why Congress should step in: Some people have argued that Congress should stay out of the gun manufacturer lawsuits, because each state should set up its own law. That's often a good argument -- if each state's law basically just affects conduct in that state. But the Ninth Circuit gun manufacturer case shows why Congress needs to step in.
The plaintiffs' theory, which the courts said would (if supported by the facts) support a negligent distribution claim, is that Glock engaged in negligent distribution, by distributing guns in a certain way:Plaintiffs allege that Glock�s marketing and distribution strategy includes the purposeful oversupply of guns to police departments and the provision of unnecessary upgrades and free exchange of guns with police departments to create a supply of post-police guns that can be sold through unlicensed dealers without background checks to illegal buyers at a profit. Glock allegedly targets states like Washington, where the gun laws are less strict than in California, in order toSo apparently
increase sales to all buyers, including illegal purchasers, who will take their guns into neighboring California. The ATF has provided Glock with the names of the distributors who are responsible for the sales of guns that end up in the hands of criminals, but Glock has ignored the information and continues to supply these same distributors.But under the Ninth Circuit's interpretation of California law, none of that matters. To avoid liability should their guns end up being used in crime in California, gun manufacturers must modify their practices in all 50 states. They have to "negotiate contracts with distributors" -- even those in Washington or Texas or Vermont -- that impose more stringest rules than those required by that state's law. They have to stop "oversupply of guns to police departments and the provision of unnecessary upgrades and free exchange of guns with police departments," even in those states where the police departments really value those features. They have to stop supplying distributors in Washington, Texas, and Vermont whenever the ATF tells the manufacturer that more than the usual number of the guns the distributor sold ended up in criminals' hands -- even if there's no proof of any wrongdoing on the distributor's part, and even if the distributor is in a state that doesn't require such treatment of distributors.
- Washington State -- the place where the gun used in the shooting was originally sold -- has decided, as a policy matter, to have less strict gun laws.
- Washington police departments have decided that it's in their interests to take advantage of Glock's police-frendly terms (the gun was originally sold to the police department, which then exchanged it because it decided it was too small).
- Washington has chosen not to mandate that gun manufacturers cut off sales to distributors whenever the ATF finds that some of the guns the distributors sold were used in crime. Maybe Washington decided that many of these distributors might be quite innocent of any wrongdoing, and just have the misfortune of being located in a bad part of town, where a higher number of customers than normal is, unbeknownst to the distributor, criminal. Or maybe Washington decided that it isn't fair to demand that manufacturers cut off businesspeople's livelihoods -- and to deprive the businesspeople's legitimate customers of convenient access to products that are constitutionally protected by Washington's right to bear arms provision -- simply on the suspicion that they're somehow doing something wrong, without any trial or even hearing to prove that the distributor was misbehaving. Maybe Washington concluded that the better approach is to leave the policing of distributors to, well, the police (state and federal).
So California law (as interpreted by the Ninth Circuit) ends up imposing its rules on all the other states in the union. The Ninth Circuit argued that this doesn't itself violate the Commerce Clause; I'm not expert enough in this area of the law (the so-called dormant Commerce Clause) to tell for sure. But surely this is ample reason for Congress to step in, and stop California from imposing its gun control policies to other states. (Incidentally, this was also a good argument for a nationwide, rather than statewide background check law, so that lenient states can't impose their gun control policies on other states; any objections to such a background check law would have to focus on reasons other than federalism.)
Ninth Circuit panel allows lawsuit against gun manufacturer: The decision is here. I'm reading it right now, and might (or might not, if I get too swamped) have thoughts about it soon. One thing I feel I can say even at the start: If this is just a decision that purports to apply California law -- as it seems to be -- then there's virtually no chance that the U.S. Supreme Court will agree to hear it. The U.S. Supreme Court's general view is that lower court decisions purporting to apply state law, even if mistaken, don't create important enough national issues for the U.S. Supreme Court to hear them. One could argue that it's different when such decisions threaten to affect a national market, but I doubt the Court will find that reason enough to accept the case.
The defendants could still ask for rehearing en banc by the Ninth Circuit, though the Circuit, too, is reluctant to hear state-law cases en banc. The theory is that if the California Supreme Court disagrees with the Ninth Circuit's interpretation of the law, it may eventually -- not in this case, which is before the Ninth Circuit and thus not appealable to the California Supreme Court, but in other cases -- correct the matter itself.
Of course, if Congress enacts the bill preempting gun manufacturer liability, then California law would be preempted. Also, if I recall correctly, the latest version of the Congressional bill purported to apply retroactively, so if the bill is enacted before a final judgment in this case (which should take years, since there hasn't been a trial yet -- the Ninth Circuit's ruling relates to a motion to to dismiss), then it would presumably preempt this very litigation, and not just future litigation.
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