# Ileto v. Glock, Inc. et al -- Ninth Circuit upholds federal gun lawsuit ban! **URL:** \ **Category:** Great Debates\ **Created:** [May 12, 2009, 4:03pm UTC](https://boards.straightdope.com/t/ileto-v-glock-inc-et-al-ninth-circuit-upholds-federal-gun-lawsuit-ban/496174 "2009-05-12T16:03:42Z")\ **Posts on this page:** 11\ **Page:** 1
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 12, 2009, 4:03pm UTC](https://boards.straightdope.com/t/ileto-v-glock-inc-et-al-ninth-circuit-upholds-federal-gun-lawsuit-ban/496174/1 "2009-05-12T16:03:42Z")
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. I’m happy. ---
**Author:** ![mswas](https://avatars.discourse-cdn.com/v4/letter/m/e99b99/32.png) [@mswas](https://boards.straightdope.com/u/mswas)\ **Post date:** [May 12, 2009, 4:11pm UTC](https://boards.straightdope.com/t/ileto-v-glock-inc-et-al-ninth-circuit-upholds-federal-gun-lawsuit-ban/496174/2 "2009-05-12T16:11:38Z")
Good to hear. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [May 12, 2009, 4:45pm UTC](https://boards.straightdope.com/t/ileto-v-glock-inc-et-al-ninth-circuit-upholds-federal-gun-lawsuit-ban/496174/3 "2009-05-12T16:45:08Z")
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. > [@](#): > > Reading the PLCAA to extinguish Plaintiffs’ claims without providing any alternative scheme for compensation thus raises serious constitutional questions that neither we nor the Supreme Court have resolved. I do not know how I would resolve these questions if they were unavoidably before me, but I am certain that they are more serious and complex than the majority’s brief treatment suggests. 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? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 12, 2009, 5:36pm UTC](https://boards.straightdope.com/t/ileto-v-glock-inc-et-al-ninth-circuit-upholds-federal-gun-lawsuit-ban/496174/4 "2009-05-12T17:36:41Z")
> [@Richard\_Parker](#): > > Interesting case. Did you read Berzon’s opinion, **Bricker**? Yup. > [@](#): > > 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. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [May 12, 2009, 5:42pm UTC](https://boards.straightdope.com/t/ileto-v-glock-inc-et-al-ninth-circuit-upholds-federal-gun-lawsuit-ban/496174/5 "2009-05-12T17:42:14Z")
> [@Richard\_Parker](#): > > Doesn’t there have to be some principled limit on when common law rights can be removed without any other remedy being provided? 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. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [May 12, 2009, 5:44pm UTC](https://boards.straightdope.com/t/ileto-v-glock-inc-et-al-ninth-circuit-upholds-federal-gun-lawsuit-ban/496174/6 "2009-05-12T17:44:41Z")
More proof that I should preview more. **Bricker** answered this more comprehensively than I did. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [May 12, 2009, 5:59pm UTC](https://boards.straightdope.com/t/ileto-v-glock-inc-et-al-ninth-circuit-upholds-federal-gun-lawsuit-ban/496174/7 "2009-05-12T17:59:58Z")
> [@Bricker](#): > > 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. 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? > [@Bricker](#): > > 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 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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 12, 2009, 6:14pm UTC](https://boards.straightdope.com/t/ileto-v-glock-inc-et-al-ninth-circuit-upholds-federal-gun-lawsuit-ban/496174/8 "2009-05-12T18:14:21Z")
> [@Richard\_Parker](#): > > 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. 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. > [@](#): > > 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? 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. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [May 12, 2009, 6:20pm UTC](https://boards.straightdope.com/t/ileto-v-glock-inc-et-al-ninth-circuit-upholds-federal-gun-lawsuit-ban/496174/9 "2009-05-12T18:20:06Z")
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? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 12, 2009, 8:02pm UTC](https://boards.straightdope.com/t/ileto-v-glock-inc-et-al-ninth-circuit-upholds-federal-gun-lawsuit-ban/496174/10 "2009-05-12T20:02:46Z")
> [@Richard\_Parker](#): > > 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? Well, the majority opinion does a reasonably complete analysis of retroactive application of such strictures: > [@](#): > > Decrying primarily the retroactive aspects of the Act, Plaintiffs argue that the PLCAA is unconstitutional on its face and as applied. We note at the outset that “retroactive statutes raise particular concerns.” Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994). Indeed, [t]he Legislature’s unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration. Its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals. Id. > > The strongest protection that federal courts give to those concerns, however, is a requirement that Congress manifest the retroactive nature of legislation with “clear intent.” Id. at 272. “[A] requirement that Congress first make its intention clear helps ensure that Congress itself has determined that the benefits of retroactivity outweigh the potential for disruption or unfairness.” Id. at 268; see also id. at 272-73 (“Requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits.”). “Such a requirement allocates to Congress responsibility for fundamental policy judgments concerning the proper temporal reach of statutes, and has the additional virtue of giving legislators a predictable background rule against which to legislate.” Id. at 273. > > Where, as here, Congress has expressed its clear intent that the legislation be retroactive, “the constitutional impediments to retroactive civil legislation are now modest.” Id. at 272; see also id. at 267 (“The Constitution’s restrictions, of course, are of limited scope.”). “[T]he potential unfairness of retroactive civil legislation is not a sufficient reason for a court to fail to give a statute its intended scope.” Id. “Retroactivity provisions often serve entirely benign and legitimate purposes, [including] . . . simply to give comprehensive effect to a new law Congress considers salutary.” Id. at 267-68. > > Additionally, we note that the only function of the PLCAA is to preempt certain claims. The practical effect of the PLCAA is thus to shift the economic burden for those claims from the firearms industry to the would-be plaintiffs. “It is by now well established that legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality . . .” Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976). “[T]he strong deference accorded legislation in the field of national economic policy is no less applicable when that legislation is applied retroactively . . . .” Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 729 (1984). ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [May 12, 2009, 8:17pm UTC](https://boards.straightdope.com/t/ileto-v-glock-inc-et-al-ninth-circuit-upholds-federal-gun-lawsuit-ban/496174/11 "2009-05-12T20:17:08Z")
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?