Just in from the Ninth Circuit: Ileto v. Glock, Inc. et al. Victims of gun violence sue the gun manufacturers and gun sellers and anyone who ever held a gun, whispered the word gun, or was a fan of the Gunn character on “Angel.”
The court upheld Congress’ ability to preempt such lawsuits, and said, as to most defendants, that this preemption meant they were off the hook. Left in play as a defendant is a foreign firm that apparently never registered with the US government as a firearms manufacturer or seller, and thus is outside the reach of Congress’ exemption.
This is a good result, correctly applying the law, and it’s a wise result as a matter of sound policy.
Interesting case. Did you read Berzon’s opinion, Bricker?
I’m not quite sure what to make of it, but at first glance it seems pretty reasonable. She argues that the majority insufficiently grapples with the larger question of what scrutiny should be applied to the abrogation of common law rights when no alternative remedies are provided.
Doesn’t there have to be some principled limit on when common law rights can be removed without any other remedy being provided? Could Congress extinguish the entire tort system, including current tort claims, without providing anything to fill the void?
Sure, but the “principled limit” certainly doesn’t apply here, where Congress has merely shifted the economic burden from the manufacturer to the actual wrongdoer. I grant that an effort by Congress to completely preempt common-law torts would trigger a more searching review than rational basis, but this is a far cry from that effort. In your hypo, procedural due process ould be impliacted; you will have completely removed ny forum for redress. Here, in sharp contrast, Congress has merely said that you can’t find liability against a gun manufacturer merely because someone legally buys their product and then uses it tortiously.
I don’t think that is happening here - the intent of the law was to restrict liability from misuse of the product, including criminal misuse. The criminals involved in this violence still carry responsibility for it and can be held civilly responsible for damages.
Congress has declared that despite what the common law might have said about who the actual wrongdoer is, they are going to statutorily define who the actual wrongdoer is. That’s a bit different from saying only the actual wrongdoer is responsible. Could Congress do this for all product liability cases? Suppose I manufacture a set of Disney Movie plates that clearly indicate in the packaging that they are not to be used for microwaving. Despite this, many parents use them in the microwave and the plates send out high frequency signal that kills all infants in the home. After my plates kill hundreds, could Congress retroactively declare that I am immune from suit and that the parents are the actual wrongdoers?
I don’t think the contrast is all that sharp. Consider vicarious liability. Could Congress statutorily and retroactively end all vicarious liability in tort? After all, there’s always someone that can be sued in a vicarious liability case, it’s just usually some boat captain or train engineer without any money instead of Exxon or WR Grace. It is insufficient to say that because there is someone else who can be sued for tortious injury then Congress can get rid of all other remedies.
FWIW, I happen to agree that as a policy matter, gun manufacturers should not be subject to product liability cases for unlawful or tortious use of otherwise nondefective products. But I think (in my three hours of considering the issue) the decision to retroactively grant that immunity should be subject to more than rational basis scrutiny. And it should probably rest in part on the Second Amendment.
No. That’s for the finder of fact in each case. Congress has merely declared who the wrongdoer isn’t, an action in line with Good Samaritan laws, which also circumvent the common-law determination of who has liability in certain situations.
The more sweeping a change from the common law, and the less of a forum an aggrived litigant has, the more scrutiny needs to be applied. At some point, it will certainly tip over into an intermediate scrutiny situation.
Fair enough. It is the retroactive aspect that I find especially problematic. It isn’t clear to me that a retroactive law immunizing Good Samaritans should be subject to only rational basis review. People make all kinds of decisions in reliance on the law. Suppose those suing Glock chose to forego suit against the penniless perpetrators of gun violence. Is it really fair to them to come in after they’ve made that decision and tell them they should have sued the perpetrators only and not Glock?
Yes, I understand that retroactivity alone does not impose a high hurdle. I was noting that the elimination of common law remedies is especially troubling in the context of retroactivity.
I’m still curious about your answer to my vicarious liability question. Could Congress eliminate vicarious liability for all, say, oil companies without meeting the burdens of intermediate scrutiny?