SCOTUS case filed - Protection of Lawful Commerce in Arms Act

[LickitySplit]

In light of the recent thread discussing the SCOTUS WRT to states rights, this does not sound very promising for our side...

Tracking new cases: Suing gun makers
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Seeking to revive a lawsuit against a gun manufacturer over a teenager’s accidental but fatal shooting of a friend, lawyers for the Illinois parents of the dead boy have asked the Supreme Court to strike down a four-year-old federal law that shields the industry from many — but not all — lawsuits. The petition in Adames, et al. v. Beretta USA Corp., filed last Monday and docketed as 09-253, can be downloaded here. That file includes the appendix. For a link only to the Illinois Supreme Court decison rejecting the constitutional challenge, click here.

The 2005 law – titled the Protection of Lawful Commerce in Arms Act — was controversial when passed, and has been attacked repeatedly since then in court. The challengers have argued variously that Congress either had no power to wipe out already-filed lawsuits against gun makers, or that it went too far in doing so. So far, the Supreme Court has not been willing to get into the controversy, and the first issue facing the new lawsuit is whether it is sufficiently different that it can not only draw the Justices’ interest, but also overcome likely resistance from the federal government.

Last March 19, the Court denied review in two cases challenging the Act — New York City, et al. v. Beretta (08-530) and Lawson, et al. v. Beretta (08-545). The federal government joined in both of those cases to defend the law, and successfully urged the Court not to hear either one, arguing that neither one raised clearly the issues it sought to put forward. In the new case, the Justice Department was not involved as it went through Illinois courts, but because a federal law could be at stake, it could do so in the Court.

The narrower issue in the Illinois case is whether the specific lawsuit by the dead boy’s parents fits within an exception in the 2005 law that permits some cases to go ahead. The broader issue is whether Congress has intruded too deeply into the way states craft their own laws, barring those that test issues arising under state common law, allowing at least some that test a state statute. The petition quotes at length from congressional floor debates, with lawmakers blasting juries and judges for fashioning “novel” ways to attack the gun industry while showing respect for laws that emerge from state legislatures.

The tragedy that led to the Adames lawsuit in Illinois occurred eight years ago, when 13-year-old Billy Swan aimed and fired a Beretta pistol at a friend who had come over to play, Joshua Adames, who also was 13. The gun belonged to Billy’s dad, a Cook County sheriff’s deputy. Billy had taken out the gun’s clip before aiming it, believing that would make it harmless. A bullet that had remained in the gun’s chamber killed Joshua.

Billy’s parents sued Beretta, among others, contending that the gun manufacturer failed to warn users of this kind of pistol that removal of the magazine did not make it safe. Without a cheap device to prevent just such accidents, and without a specific warning about the hazard, the pistol was too dangerous, the lawsuit contended. (There were other claims, but that one is the center of the case now.)

While a lower state court allowed that claim to proceed, the Illinois Supreme Court blocked the lawsuit altogether. It ruled that, because Billy had intentionally aimed the gun and pulled the trigger, the incident did not come within the exception Congress had made to the lawsuit ban. But it also went further, and found that the law did not run afoul of the Constitution’s Tenth Amendment, and its protection of state laws, because it did not “commandeer” state officials or processes to carry out some federal order or duty.

Taken to the Supreme Court by some of the same lawyers who pursued one of the earlier challenges, the Adames petition puts its primary stress on the Tenth Amendment issue. That Amendment, leaving states free to create their own laws when the powers have not been assigned to Congress, bars Congress from dictating to states “which branch of state government may authorize liability against a particular industry so long as the federal enactment does not ‘commandeer’ state officials,” the petition argues.

The Illinois court, like the Second Circuit Court (in one of last Term’s cases), deferred to Congress “when it determined which branch of state government it would recognize as the authoritative expositor of state law, as well as limiting the scope of the Tenth Amendment to its anti-commandeering principle,” the filing contends. That “cannot be reconciled with our system of federalism,” it says.

On what kinds of lawsuits are affected by the 2005 law, the petition argues that the reach of that law “is an issue of pressing national importance that courts nationwide are continually struggling with and which requires this Court’s definitive construction.”

The Beretta company’s response to the appeal is now due by Sept. 28, unless the time to file is extended.

http://www.scotusblog.com/wp/tracking-new-cases-suing-gun-makers/

 

[DHJenkins]

Forget "our side", it's not very promising for the entire premise of "taking responsibility for being an idiot".

The tired old comedy routine about labels on hairdryers that say "do not use in shower" aren't just a joke - they're a reality.

My wife has a curling iron that actually says "Warning: Iron gets very hot! May cause burns on skin! Do not make contact with eyes!"

This whole thing is nothing more than blame shifting, and it's sickening. I'm so tired of all of this government-mandated hand holding that's now required by a large percentage of our population because they are, quite simply, too stupid to stay alive without it.

 

[2aHawaii]

I saw this same post. I agree with DHJenkins that people just can't take responsibility for the dumb things they do. If the instructions had said "Guns with a round in the chamber are still able to fire" have changed the outcome? No. These kids were playing with a gun and weren't taught to respect it and the sheriff's-deputy-dad didn't secure it.

 

[deadin]

No one told me not to paint the cat!

I used to work for an insurance company and you wouldn't believe some of the claims we got. (On second thought, you probably would believe them.)
One that comes to mind is the guy suing a local hardware store AND the manufacturer of a lawnmower he had purchased. It seems that he mangled his leg while trying to trim his hedge with it. (The instructions didn't say not to use it for hedge trimming.)
Then there was the one that set his house on fire by using his gas barbecue indoors. It seems that the instructions did say "Not for indoor use". The warning was printed in bold 1/4 inch letters with a black border around them, however the current standard (not the standard in force at the time he bought it) was the letters should have been 5/16th inch.

 

[Geneseo1911]

I don't know the first thing about the process, but can't anyone file a case for any reason? Do we really need to get worked up about it before the case gets accepted? It seems as though the ILSC got it right, is there any reason to believe the SCOTUS won't simply say their ruling stands?

 

[ArmedBear]

If PLCA isn't constitutional, can ANY tort reform be constitutional?

I'm afraid not. This would be ugly.

This case will be a big deal, if it's heard.

 

[goofy grape]

Do you ever see anyone suing an auto manufacturer because of auto accidents? Or do they sue Budweiser, Corona or any alcohol manufacturer for DUI deaths? No, they go after the gun manufacturers. In something like this if I was a gun maker, I'd fight it out in court instead of settling, just for the principle of it.

 

[leadcounsel]

Do you ever see anyone suing an auto manufacturer because of auto accidents? Or do they sue Budweiser, Corona or any alcohol manufacturer for DUI deaths?

Yes.

Unfortunately, it's often about deep pockets. Blame the family, blame the legal system, blame the lawyers (on both sides), blame the judges, blame the liberals for encouraging the "shift the blame" mentality...

In all fairness, I understand that if a company makes a product that doesn't work as it's supposed to, then that company and directors should be liable in civil (and sometimes criminal) court. For instance, a car with brakes that don't work and cause injury and death. A power saw that has a faulty blade that dislodges and kills the user. A gun with a weak slide stop that causes the slide to fly off during recoil and strike the shooter in the face. These are valid examples of product liability.

The problem is that people often sue EVEN THOUGH the product works as designed. Cars are meant to drive. If there was no fault and the driver ran over someone, it's the fault of the driver, not the car. If the user of the saw was careless and cut himself, then it's not the saw, it's the user. If the pistol functioned perfectly but through negligence a person was shot by the weilder of the gun, then there is no product liability.

 

[dogrunner]

I've suggested the following to several Attorneys I know and the initial reaction is one of jaw dropping silence at first, followed by all sorts of reasons "why" it won't work.

Simply put, nearly 100% of questionable actions filed could be stopped cold with the simple application of criminal rules of procedure as opposed to civil........in short, rather than having to prove a case is "more likely than not", as is current practice in U.S. civil actions, shift the burden to the more stringent one of "to the exclusion of reasonable doubt".

Doing so would strike a hard blow to the trial attorneys that abuse our system and drive up overall cost for everyone from the gun manufacturer to the medical industry...........a truly aggrieved person that CAN show genuine evidence of damage or loss would still be able to pursue their cause of action.

Now in practical fact, the sheer number of lawyers that inhabit our legislative halls would present an impossible burden to overcome, but the approach WOULD work.

 

[General Geoff]

The Beretta fired when the trigger was pulled, and a round was in the chamber. It functioned perfectly (as the IL Supreme Court found). I doubt the USSC will decide differently.

 

[green-grizzly]

I don't see that going anywhere. There may be a few judges on the Supreme Court that hate guns, but they love federal power even more. If the commerce in arms act was thrown out they would have to throw out thousands of other laws.

 

[DHJenkins]

Or do they sue Budweiser, Corona or any alcohol manufacturer for DUI deaths?

Forget deaths. I'd have loved to sue Jack Daniels for waking up next to... well, you get the idea.

 

[Phatty]

dogrunner,

Honestly, I don't think your idea of changing the burden of proof would make much of a difference in the end. Most of the time, juries don't even comprehend the burden of proof or how to properly apply it. They make up their mind (usually early in the trial) as to who they think should win and who should lose and that generally determines the verdict. Also, tons of cases are filed every day where the plaintiff's attorney knows that there is almost no chance of actually winning the case at trial but expects (correctly) that the defendant will still pay a significant amount of money to drop the lawsuit because the cost of defending a lawsuit is so high.

 

[Vibe]

I wish someone would remind SCOTUS that if Miranda had been decided BEFORE Miller had been heard, that the NFA would not have withstood the scrutiny, and none of this would be an issue now.

 

[Yellowfin]

Miller had equally as much to do with upholding everything King FDR decreed than anything else. Cruikshank, Presser, Slaughterhouse, and Plessy were bad lead-ins, and because of them NYS' Sullivan Act had not been successfully challenged and struck. Had that one been struck down and/or the FDR political gorilla not been in power then the NFA and Miller wouldn't have happened.

 

[Vibe]

True. But that was because Miller was not represented. Miranda ruled that a violation in itself. Miller was decided upon due to a lack of presented evidence by the non-extant defense. Evidence which existed in abundance, but was not presented solely due to the lack of representation.
Justice McReynolds pointed out as much in his decision

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

But you are also correct that FDRs scheme to threaten SCOTUS with additional Justices did get some bad law entrenched.

 

[dogrunner]

Phatty:

You do realize that a verdict rendered in a criminal case that fails to meet the standard of reasonable doubt cannot be upheld. Even it it succeeds at the trial level it'll be reversed on appeal. Insert that same standard in place of the lesser, easier one now existing and you've put the burden squarely where it belongs: in the hands of the accusatory party..............if it cannot meet that standard it cannot result in a conviction........do the same in tort issues and you gut the currently abused system.

Think about it, how many failed criminal cases would've resulted in a conviction with a standard of "more probable than not!

 

[ArmedBear]

There's also the issue of cost, though.

Our court system operates as if time, attorney's fees, and having one's life and/or business essentially frozen for the duration of a lawsuit, are not costs.

They ARE costs.

Winning should be winning, i.e. the strict standards as you suggest, combined with loser pays all -- including damages for lost time and opportunities.

 

[dogrunner]

Right on, Armed Bear, that's precisely the point..........civil process is viewed as 'minor', therefore deserving of that lower burden of proof..........jack up that proof requirement and you make it more difficult to insert the crippling effect of a civil action...............truth be told, given a choice, I would much rather face a minor term in a penal institution as opposed to losing all my assets, which can include even one's home and life's savings.

We need tort reform, and we really OUGHT to stop playing the game by the legal professions corrupted rule structure!

Would you fight a war according to the 'rules' demanded by your opponent

 

[garymc]

I may be wrong about this, but I thought when the U. S. govt selected the Beretta for the military, they specified the gun had to be able to fire without a magazine in it. There are perfectly good utility reasons why a defense weapon should be able to be loaded and fired without a magazine.

 

[ArmedBear]

We need tort reform, and we really OUGHT to stop playing the game by the legal professions corrupted rule structure!

There's only one practical obstacle to that.

We have three branches of government, all controlled by that rule structure.

The President, the entire Supreme Court, and 45% of the Legislative Branch are attorneys.

Good luck getting past that.

 

[Grey54956]

We so need to get away from suing companies for the gross misuse of products.

The Beretta functioned flawlessly. Someone pointed it at the target, pulled the trigger, and the gun fired. It functioned as intended. There was not a material defect. There was not a manufacturing defect. There was not a design defect. The only defects in this case was the lack of intelligence of two teenagers, and the negligence of a parent. The gun's purpose is to fire a cartridge if there is one in the chamber. Whether there is a magazine in place to feed more ammunition is not important. There is no magazine disconnect because there was never one put into the design of this firearm. Whether the operator believed that removing the magazine would disable the firearm is also unimportant. If I believed that rubbing my belly and scratching my head would turn the moon into gold has no basis in reality. Belief and reality are frequently unrelated. The operator broke the four rules, with obvious results.

The only basis for which someone should sue a manufacturer is injury or death caused by material, manufacturing, and/or design defects. The latter, only if the product fails to operate in the way it was intended, which does not apply to this case.

 

[DHJenkins]

We so need to get away from suing companies for the gross misuse of products.

Unfortunately, that would require that people take responsibility for their own actions, which is a concept that our public schools have been slowly removing from the curriculum, and our justice system has been removing from society.

 

[Warhawk83]

The cop needs to take responsibility for leaving the gun laying around. It's as much his fault as his son. Do you really think the cop didn't know a round would still be in the chamber? He also needs to beat junior's ass for pointing a gun at someone, let alone pulling the trigger. The way society is today they will probably win $50 mill from Beretta. Nobody will take responsibility anymore, they just want to pass the buck.

 

[ArmedBear]

The cop needs to take responsibility for leaving the gun laying around. It's as much his fault as his son. Do you really think the cop didn't know a round would still be in the chamber? He also needs to beat junior's ass for pointing a gun at someone, let alone pulling the trigger.

This case almost makes me want to support laws like those in California, where if you leave a gun around and a minor "misuses" it, you are criminally liable.

If there were a way to make the law so it didn't prevent people from displaying fancy guns, or having them accessible for self-defense, I'd almost be in favor of it... Too bad people are so stupid.

The cop should be stripped of his badge, though. Isn't he supposed to help keep others SAFER?