Sigh. No, justwannono. I said that are not categorically innocent. Until Bush signs that law, anyway. Neither am I. Or you. You are reading what is not there.
ExTank, hey something nonvenomous! Thank you. You know we can disagree without the hyperbole. If I am mistaken show me. I have been known to admit my errors. Maybe Campion will explain to me why I am wrong. But your post does not show me my error, if it exists.
Above edited only for brevity.
I agree, that if it were to be proven they marketed with that demographic, they could probably be charged, even under this law. I used Joe Camel for a bit of Real World analogy. If there was evidence the Tobacco Companies were marketing to kids, they deserved to be busted. (I think there were memos) If they weren’t, and Joe, the old mascot, was simply a cigar and nothing more, then they don’t.
I think this law was intended to be written as a law that changes nothing, except for the filing of certain lawsuits. I don’t see any great loopholes there. (Do expand on what you see… where does it not cover your hypothetical?)
ExTank: Yep, look above your post, found out about Andrew Cuomo later in the day. I was looking for hard proof that’d convince other people, and he seems to qualify. I don’t need hyperbole, when the truth is on my side. I like that.
Well, if, say, Operation Rescue people keep suing abortion doctors for, uhm… Loss of Income Based on Potential Earnings of the fetus, say… and the lawsuits are all bullshit, and keep getting tossed out of court, then…
I’d say a law designed to prevent those lawsuits is probably worthwhile, as the Operation Rescue lawsuits are violations of the social contract. One that wouldn’t protect the doctors from malpractice lawsuits, simply those specific suits that come from performing their job as intended, with intended and wholy legal results.
Is that too wrong?
Where was your hypothetical? Was that the one I covered in the LadyColt/Joe Camel example? Was I wrong with that?
This is false. There are more guns in circulation now than are currently being manufactured and sold over the counter. Banning a gun that is in circulation does not automatically make it vanish into thin air. It is still going to be out there, and guns that aren’t traceable to the perpetrator are the preferred tools for gun crime anyway. If you ban the sale of guns right now, you are only preventing a law-abiding citizen from obtaining one legally. You are in no way preventing a criminal from obtaining one for use in a crime. Why is this so hard for opponents of gun ownership to understand? Is it because it is so devastating to your case?
I just recently purchased a firearm through the legal channels. It was a major pain in the ass because I had let my carry permit expire (my own fault) so I had to go through the normal channels. This took forever (The Federal Government has taken over gun checking from the states since the last time I purchased a firearm and now everything takes ten times as long). Trust me, there is more than enough precautionary measures going on right now to prevent guns being sold to the wrong people. In my opinion the issue has more to do with most gun crimes being committed with guns that were not obtained appropriately. What percentage of guns used in crimes last year were purchased legally by the perpetrator of the crime? I bet the number is staggeringly low.
If guns were to vanish into thin air, then criminals are still going to be criminals; they will commit crimes using other available tools. This mentality that something cold and made of polymer and steel has an evil and venomous soul is silly. It’s just a gun, it’s just a knife, it’s just a baseball bat, it’s just the front grille of a Buick.
Since Smith & Wesson, Glock, Beretta, etc. do not sell guns to the general public, how can they have any real control of who ends up with their product, and therefore be held liable for a crime committed with one of their products?
Just for the record, the gun I purchased was immediately given to my stepfather for a birthday present, which is perfectly legal.
Dseid
They are not categorically guilty either.
The anti gun folks and their cronies, read lawyers, have drawn a big huge bullseye around the gun industry.
Now since this has been allowed to go on, the gun industry needs help.
They need protection from constantly being sued for something they have no control over by folks that want to destroy them.
How is this difficult for you to see?
Answer please.
Yes, the hypothetical was the one analagous to your paraphrasing, and perhaps I am dense, but I cannot see how this law does not prevent that sort of suit, if it was valid.
I have not said they are guilty. I have said that the case to prove guilt is unlikely to be made, even if they are. They’d also need to be stupid enough to leave a documentary trail of intentional design and marketing for gun usage by the criminal demographic. I doubt they are either that evil or that dumb. But then I didn’t think tobacco was either, so who knows?
Once again, I have no problem with tort reform, including tort reform that would prevent gun producers and distributers from having to repeatedly defend themselves from baseless charges. I have problems with creating something just for them, when others are in the same exact boat (like us doctors), and I have a problem with a solution that gives them the equivilant of a “Get Out of Jail Free” card (or perhaps diplomatic immunity?) without knowledge of the facts of a particular case.
It is also unclear how big of a problem this really is to manufacturers. They have not lost any cases and again, it costs as much for plaintiffs to bring these to trial as it does to defend them. If they stand firm they’d soon go away as there has been no bonanza for the plaintiffs, like in tobacco. I think that they are trying to blame all their troubles on these suits, but the fact is that the product just isn’t selling as well as it used to. From one of E-Sabbath’s links:
And our own government is apparently often buying from overseas. Some little guys are going to fold. Others will concentrate on more profitable lines. That’s the marketplace.
If you are going to do tort reform, then do it right. Protect everyone from those who would abuse the legal system with frivilous suits of all sorts. And do it in a manner that does not prejudge in advance of specifics. The junk food industry also wants protection. I want protection. Everyone wants protection. If gun makers deserve it then so does everyone else.
Not every gun started as a legal gun. Some were kept after Army service. Good amount of Colt .45s and M1 Garands entered private hands that way. So did a number of AK-47s which got smuggled home from 'Nam.
I don’t understand, DSeid. Take it slow, and explain it in relation to the law, would you?
So much for my clever plan to leave this alone so someone else would do the heavy lifting for me. DSeid, apologies in advance for any liberties I take with what I believe is your position, and I’ll appreciate any corrections. Here’s your hypothetical:
As I understand your hypothetical, you assume that under current law, a gun manufacturer can be held liable for marketing its product to the black market. You further assume that the proposed legislation would change that result.
One of the things I’ve struggled with today is whether your first assumption is correct – can a gun manufacturer be held liable on some theory simply because people think its marketing is directed toward an illegal market? I don’t think that’s the case, without more. If you alleged damages, perhaps, you’d have something. So let’s assume that as a result of said marketing a person buys a gun intending to use it in the commission of a crime, and so uses it.
Under current law, you’d try to make out a negligence claim maybe, although I think you’d be in trouble (unless you had something like DC’s law that expressly sets out permission to file a negligence claim). Negligence is duty, breach, causation, damages. Everyone has a duty to conduct themselves in such a fashion that they do not harm other people unnecessarily. But causation is hard: you’d have to prove that the gun manufacturer’s marketing campaign caused the damage. I would argue (likely successfully) that the marketing campaign did not cause damage – instead, the damage was caused by the independent, intervening act of the criminal in using the gun.
Your better bet may be some kind of claim that the gun manufacturer aided and abetted the criminal in committing the crime, because the manufacturer deliberately made its product available to the criminal. Also a hard sell, but easier than negligence, I would think. And under the proposed legislation, aiding and abetting liability remains.
And that, to me, is the key: the proposed legislation leaves sufficient loopholes that the enterprising trial lawyers who came up with such creative theories initially to try to sock it to a new industry (what else do you do when tobacco and asbestos are played out?) could still assert causes of action against gun manufacturers and sellers. If a seller sells a gun to a criminal, he can still be held liable (if nothing else, for negligence per se).
I suppose that my response could be summed up this way, DSeid: show me how your hypothetical states a claim under existing law, and I’ll show you how the proposed legislation would affect your claim.
Two more thoughts: Snakescatlady rightfully points out that Congress is entitled to be concerned with the drain on the courts caused by frivolous lawsuits. Some people have theorized that it is just as expensive for a plaintiff to sue as it is for a defendant to defend. Sometimes yes, sometimes no. In cases like these, the plaintiff will have relatively little discovery to produce, so it is very cheap for the plaintiff’s lawyer simply to draft broad discovery requests (“All documents relating to your manufacture of the Acme Gun.”). The defendant must then review all its documents (including its electronic documents – think about how much email you get in a day, then multiply that by all employees in your company). I should say, the defendant must then pay his lawyer to review all his documents to determine whether they are responsive to the plaintiff’s request and whether the documents are privileged. This is but one area in which the defendants’ costs are likely higher. Another area is attorneys’ fees: the defendant actually has to pay an attorney, whereas the plaintiff gets an attorney on an contingent fee basis usually. This means that the defendant is out of pocket cash whether it wins or loses, while the plaintiff only pays his attorney if he recovers from the defendant.
The final point is this: several people have said that they feel uncomfortable having Congress pass a law limiting certain lawsuits. In my opinion, Congress ought to legislate. The judiciary should not. Congress already spends a fair amount of its time limiting lawsuits – it writes laws that give people certain rights, and it writes the procedural rules that have great effect on the progress of lawsuits. Given that the gun manufacturers have (as far as I know) been successful in fending off these suits, Congress is entitled to take notice of the drain on judicial and other resources and write a simple law that nips these issues in the bud, particularly where said law still permits suits that get at the heart of what people are complaining about.
E-Sabbath The point was an example of a response to a problem that might be a laudatory outcome, and an effective response (or not, a seperate debate really) but an excessive means. A case where the juice aint worth the squeeze so to speak.
mks I stand corrected, they have lost one case, narrowly framed that the problem was the gun’s design that required safety off in order to unload. And yes bad decisions, like this one at least appears to be from this source’s presentation of it, are possible. I’ll state with more precision then. They have usually won. They would likely win any case that claimed that a gun is inherently a bad design because it kills. Cases would die off quickly without the pots of gold appearing.
Campion I defer somewhat. If you are right in your analysis of my hypothetical then I am wrong. To my non-legal mind, I think that a proven targetted campaign of design and marketting aimed at the criminal market would be sufficient as a cause of damage under past law but not this new one. We’ll never really know.
I maintain that tort reform is needed across the board, not just for this industry, and that less severe means than prejudgements would be as effective, and therefore preferred.
A: Still don’t get where my example isn’t the same as your hypothetical. That’s why I asked you to take it slow. Take my example, if you want, and point out the failure in it.
B: Yeah, tort reform is needed. But how do you reform without penalizing the little guy? At the least, this specific issue can be legislated.
That case is irrelevant; it was a strict liability/design defect case, which under the proposed legislation still could have been brought, as long as the shooting was not itself a criminal act:
Bolding mine. So that case is not an argument for this legislation.
If I get some time this weekend, I’ll look at this issue and see what theories are out there. Penalizing a marketing campaign is difficult, though, because of the free speech issues (yes, it’s commercial speech, but there’s still a wee bit of protection).
This bothered me too much, so I looked at it this morning. DSeid, courts have soundly rejected theories of negligence and strict product liability in situations like your hypothetical (a gun manufacturer deliberately markets its product to a criminal element). So the new theory is one of public nuisance: Young v. Bryco Arms, a 2004 decision of the Illinios Supreme Court, rejecting a public nuisance theory under your hypothetical. I apologize in advance for the multiple quotations, but the court’s analysis is helpful, I think.
Note that both the trial court and the appellate court found that plaintiffs had stated a cause of action for public nuisance. The Illinois Supreme Court overruled those two courts. The procedural posture of the case is important: the defendants challenged the sufficiency of the complaint. There had not been a trial, or any exchange of discovery information. Instead, the defendants filed essentially a motion to dismiss the complaint on the ground that it failed to state a cause of action for which relief could be granted. When a court rules on such a motion, it assumes that the things stated in the complaint are true, and it considers the legal sufficiency of the pleading. In other words, when ruling on the motion, the courts assumed that the plaintiffs were right when they alleged that the defendants specifically marketed their product to criminals – that’s your hypothetical.
Public nuisance requires the plaintiffs to allege four elements:
Under that rubric, the court sidestepped the first two elements and assumed that plaintiffs had adequately alleged those elements. The court focused its analysis on the third element: proximate cause. Proximate cause is two things: cause in fact and legal cause.
It isn’t simply foreseeability, however:
Here, the court found that the gun manufacturers had merely created the condition by which injury became possible, but the gang members who acquired the weapons and killed the plaintiffs’ decedents were the proximate cause of the injury. The court noted explicitly that their decision was based on public policy:
Now, I think that the Young case does not foreclose a public nuisance theory, but you would have to make a showing much stronger than the plaintiffs made here. And it’s true that a public nuisance theory would likely be foreclosed under the proposed legislation. But, frankly, if you could show a closer connection between the manufacture of guns and the gang members who used them, you could try for aiding and abetting liability, or a conspiracy theory. Those kinds of claims would still pass muster under the new law.
Yes. In my hypothetical, a gun producer designed the gun with that demographic researched out as their target market, maybe even with focus groups. This “message to the gangstas”, to my analysis, fails to meet the standard aiding and abetting the purchase to an unqualified buyer. Too indirect and removed. And it does not break any criminal code. So my take was that it would be likely successful (with sufficient documentary evidence that it occured) under past law, but not under the new law. It could be that it is not too removed and still be an allowable suit. Or it could be that causation is too indirect to win in anycase. I cannot claim to know and do believe that Campion is likely more informed about legal matters than I. I suspect that it would be up to a court to decide. The point was merely that even I can imagine a hypothetical case which was just that was disallowed by prejudgement. And my imagination is not the most creative. Prejudgement of all future cases is a big step.
How to do more general tort reform? Well, this is off the cuff, not a detailed analysis, but right off I can see a process in which civil cases must first get past some kind of a prescreening to wean out the clearly frivolous. I can see an across the board cap on non-economic damages so people don’t try to come as close to priceless as possible with ever increasing bonanzas. I can see limiting venue shopping - for example, I am now named in a suit that I have absolutley no imaginable culpability in (my only contact was after the fact of the alleged mistake) because my home address gets a more favorable plaintiff venue. I can see mandating some kind of arbitration process be engaged in before trials are brought. The devil would of course be in the details and I’m sure that better minds than mine can come up with better ideas. And you’d have to get past the trial lawyers with it, who argue that forcing changes, like those Colt came up with and that Clinton’s administration dickered for, is exactly the benefit to society that their actions bring. (Gag me.)
And on preview I see a new pos by Campion so I will return soon.
I appreciate the analysis just provided. So it seems that even if one could prove that a gun producer was intentionally designing and marketting a product with the criminal market in mind, that even then old law was such that a gunproducer would win in court. The new law does not change that. At least in Illinois and one presumes in other jurisdictions as well. The law may indeed not be unjust. I am left with claiming it is then just unneeded. If even that exteme hypothetical cannot win under old law, how much did they really need to fear. Again, I acknowledge the costs of defending from suits, but I hope that others will acknowledge that without any significant losses, or spineless settlements, the suits would soon go away without federal intervention. I still maintain that the redress was disproporrtionate to the need, and specific for one industry that has no greater need than many others.
Well, in fairness, it hasn’t succeeded so far. As any trial lawyer will tell you, “I just want to get in front of a jury.” They don’t care so much about the law and the facts; they want to appeal to the jury’s emotions. The danger, of course, is that the jury could decide for the plaintiff even if there is no law permitting it; that requires an appeal, with its attendant uncertainty. In such situations, many defendants do the cost-benefit analysis: even if we win, we’ll be out a few million in attorneys fees. If we settle with the plaintiff, we can limit how much we’re paying out. You can see the appeal of that line of attack.
Personally, I’m indifferent to the new law. I think that the same suits will still be filed, just using new legal theories. That’s what the plaintiffs’ bar does – they look for new and novel ways of bringing the same claims that got shot down last week. That’s valuable, in my opinion; it keeps us all on our toes and permits the courts to do justice in new situations. That doesn’t mean I don’t curse them when we see what crack-pot theory they’ve come up with this week.
Whether or not this law is needed? Maybe not. It’s certainly easy for a state to get around it: pass a law that says that marketing to criminals is wrong. Then a plaintiff could have a negligence per se claim that would survive the new law. That puts the onus directly where it ought to be: on the legislature, to declare what our laws are and what our social and public policy is. Judges will do that work if they need to – when the world moves faster than the law, for example – but it’s entirely appropriate for the Congress to declare our public policy.
I’m with you on the tort reform, though.
Campion, can you tell me more about what is required to bring this kind of motion? I wonder if it could provide a model for dealing with frivilous suits away from juries in general, without the need to impose prejudgements in advance of the facts. Not in its exact current form but with some tweaking. Is that a reasonable thought?
Clearly the Gun Lobby proved their clout with this legislation (compare to how little my medical industry has been able to get past the trial lawyers’ influence in Congress, for example) and it actually is more narrowly framed than the news blurbs painted it. But I doubt that the gun industry will continue to help in the fight for meaningful, intelligent and balanced tort reform for all now that they percieve that they got their own asses covered. Politics makes for strange bedfellows indeed, and in this regard “medicine” (often not a friend of the gun industry) and gun rights advocates had some common interests.
Half the problem was, re: Andrew Cuomo, that it was an arm of the federal government pressing these suits, as a weapon to make policy, rather than legislate policy. This is, ah, bad governance. The trial lawyer equivalent to an activist judge. Right?
This law, was, therefore, not unneeded, in this case.
Well, in all fairnes to the “Gun Lobby,” they do have one heckuva grassroots movement behind them amongst ordinary American gun owners, and quite a few of them also believe (as I do) that Sarah Brady et. al. will not stop at assault weapons bans and handgun bans (in spite of the proclamation that that is their intention), and will continue on to hunting weapons once the “evil” guns are out of the system and but a distant memory to American gun owners.
So you also have various hunter’s organizations (closely related to pro-gun rights groups, but separate and distinct from them for the most part), and the more realistic wildlife conservation groups, as well.
I don’t know how that stacks up to the “medical lobby” and/or the “insurance lobby.”
Question: do you think getting medical liability tort reform through Congress will actually motivate insurance companies to lower premiums on malpractice insurance? After all, they’re already raking in the big bucks from one of the highest paid professions in the U.S.A…
Not really; the underlying law is what’s critical, because the law tells us what our rights are. A motion to dismiss, like a motion for summary judgment, is a way to get rid of a case before it goes to trial, but in each instance, it is simply a procedural device that brings to the judge’s attention the fact that the law bars plaintiff’s claim.
A motion to dismiss for failure to state a claim upon which relief may be granted is a motion brought early in the case, usually before the defendant has answered the complaint. It is essentially a legal “so what?”: that is, the motion says to the court, “for purposes of this motion only, I admit that I did everything the plaintiff says that I did. So what? He’s not entitled to get anything from me for that because the law bars his claim.”
This new legislation simply laws out the law that bars the claim. For example, the new legislation bars claims based on the criminal or unlawful misuse of a gun. In the Young case, discussed above, the claim was arguably based on the fact that the gun manufacturers were responsible for the deaths of the plaintiffs’ decedents because the gun manufacturers marketed and sold guns to the gang members who killed the plaintiffs’ decedents. In that case, were I defense counsel, I would move to dismiss on the ground that the claim is one barred by the new legislation. If the judge agreed with me, the complaint would be dismissed.
If the judge, however, believed that the damages did not “result from” criminal misuse of the weapon, but instead resulted from the marketing, the judge would deny my motion to dismiss, and we would go on to discovery. So, bottom line, the procedural device of a motion to dismiss is helpful, but the law on which your motion is based (and how the courts interpret that law) is what’s really at issue.
Thanks Campion again for the information. Oh well.
ExTank, certainly we do not have a comparable grassroots. Nor the ablity to convince as many people that anyone who wants any medmal capacity is actually trying to destroy all medicine and take away all medical care. We don’t have a mythical fearsome beast of hyperbole to bandy about to rally up our troops like you apparently do. Which isn’t to say that there are not some nutjob lawyers, just like there are some nutjobs on every side of every debate, including gun control isues. BTW, are your eyeballs better yet?
As to the insurance industry … I believe in a competitive marketplace. Lower their costs and risks and they can compete a little better. Plus lower my fear of drastically over policy limit settlements and I’ll be more willing to have enough spine of my own to fight meritless suits, even in the dreaded Cook County venue. But perhaps these issues have had enough threads of their own.