No, of course it doesn’t stop with guns: The British Medical Journal, which we have had occasion to criticize in the past (see Dec. 17, 2001 and links from there), has run an editorial entitled “Reducing knife crime: We need to ban the sale of long, pointed kitchen knives”. (John Schwartz, “British Medical Experts Campaign for Long, Pointy Knife Control”, New York Times, May 27; Edward Black, “Doctors seek kitchen knife ban”, The Scotsman, May 27). Dave Kopel (May 27) has more. And: Max at Untamed Fire of Freedom comments (May 27).
Posts Tagged ‘guns’
“Butter knife ‘an offensive weapon'”
Britain’s High Court has rejected an appeal by Charlie Brooker of Kent over his conviction for carrying a bladed instrument without good reason. Brooker’s lawyer, Mark Hardie, argued that the butter knife in question “had no handle, sharp edges or points and therefore could not fall foul of a law intended to protect people from dangerous weapons”, but the judges observed that the law by its terms did not confine itself to sharp or dangerous blades. “During the hearing, Mr. Hardie said the law would now catch even plastic knives restaurants and cafes supplied to customers with take-away food.” (Duncan Gardham, Daily Telegraph, Apr. 14; John Aston, “Carrying A Butter Knife May Lead to Prosecution”, The Scotsman, Apr. 13).
More on District of Columbia v. Beretta, U.S.A.
We get mail:
You mention in your “District of Columbia v. Beretta, U.S.A.” post that other commentators, such as Mr. Healy and Mr. Levy, have argued that individual states, not the federal government, should be initiating legislation preventing lawsuits against gun manufacturers. The idea is that businesses can “withdraw from doing business in a state that has an oppressive tort regime.” Your counter-argument, however, is that the latter idea “doesn’t help gun manufacturers who don’t do business in the District of Columbia to begin with.”
But, in fact, can’t businesses withdraw from states to the point where these businesses no longer have the “minimum contacts” necessary for the state courts to assert personal jurisdiction over the businesses? Then the businesses would be avoiding the oppressive tort laws of those states, but the states would not have personal jurisdiction for any lawsuits against these businesses.
Chris Schmitthenner
It is correct that gun manufacturers will, in litigation, attempt to get themselves out of the case by arguing lack of personal jurisdiction via such precedents as Asahi Metal Industry Co. Ltd. v. Superior Court of California. However, there are two separate issues that prevent Asahi from providing complete relief.
First, plaintiffs will argue that there are minimum contacts that suffice for personal jurisdiction. They’ll argue that the manufacturers placed ads in magazines that would be seen by residents of the state. They’ll argue purposeful availment under the same factual theories that underlie the “nuisance” claims in the Weinstein litigation. Cf. GTE New Media Services v. BellSouth Corp. (D.C. 2000) (plaintiff entitled to discovery whether defendant, while not physically present in District, intended for District residents to do business with it and caused injury within District); LaMarca v. Pak-Mor Mfg. Co. (N.Y. 2000) (distinguishing Asahi to find personal jurisdiction). In the case of the D.C. city council law, the manufacturers may even have problems to the extent they have lobbyists in the area. A particular judge may well decide that it’s a jury issue, and many manufacturers won’t want to take that risk.
Second, even if D.C. courts do not have personal jurisdiction over the manufacturer, little stops a D.C. plaintiff from suing a gun manufacturer in a state where there is personal jurisdiction. For example, in Peterson v. BASF, Minnesota state courts applied the New Jersey Consumer Fraud Act to a nationwide class; in Ysbrand v. DaimlerChrysler, Oklahoma state courts applied Michigan law. One can easily imagine a D.C. plaintiff and a well-funded attorney filing suit in Los Angeles County against a California manufacturer asking for application of D.C. law. I think, in such a circumstance, gun manufacturers have strong arguments under the principles behind Phillips Petroleum v. Shutts that, if D.C. has no personal jurisdiction over a defendant, choice-of-law principles cannot be used to apply D.C. law to the defendant in a manner consistent with due process. But the question, to my knowledge, has not yet been resolved definitively; the defendants in Peterson and Ysbrand certainly were within the personal jurisdiction of the forum whose law was applied. Cf. also the different case of Keeton v. Hustler Magazine, Inc., where a New York plaintiff was allowed to sue an Ohio/California defendant using New Hampshire courts and laws, solely for the purpose of taking advantage of a favorable statute of limitations.
In short, gun manufacturers have strong arguments for application of the Healy/Levy federalism theory should such a suit actually happen. But plaintiffs get to choose their forum, and a large part of forum-shopping is finding a forum where the courts are less likely to resolve issues of law in favor of the defendant. The advantage of an immunity law is that it removes that uncertainty.
I’ve opened comments on the narrow question of the interrelationship between personal jurisdiction and choice of law. Please keep discussion civil and limited to this issue.
Federalism and product liability
Doesn’t a proper respect for federalism require us to stand back and let individual states assert whatever powers they wish to assert on the matter of product liability? No, it doesn’t, because to do so is in many cases to deprive the other states of a chance to adopt their own favored policy. We’ve belabored this point for years (particularly in the gun context; see here and here, for example), but now Eugene Volokh sums up the whole matter (Apr. 25) with great clarity. He concludes with the following points:
Finally, I would caution against appeals to tradition here. It’s true that most tort law has traditionally been state law; but that’s partly because historically most tort liability has involved either entirely intrastate behavior or behavior that’s largely intrastate. In particular, I don’t think there has been a long tradition of tort law imposing liability on defendants’ purely out-of-state behavior in the first place, especially when defendants’ behavior was lawful in the state in which it took place.
Moreover, as the economy has gotten more nationally integrated, Congress has indeed preempted state tort liability in many fields. This is clearest in sectors that have heavily involved interstate behavior, such as air travel; but it has happened even in areas where much more of the behavior is intrastate, such as (in considerable measure) labor law, employee benefits law, and more. Whether these federal actions were right or wrong, they must surely be counted when one is deciding what’s “traditional” here.
District of Columbia v. Beretta, U.S.A.
Frightening decision in District of Columbia v. Beretta, U.S.A. today: the highest court in D.C. upheld the legality of a provision that allowed victims of gun violence to sue gun manufacturers for the misuse of their products. (The law in question applies only to “machine guns”, but then defines “machine guns” to include semi-automatic weapons with large magazines.) As Professor Volokh notes, this has the effect of permitting the D.C. city council to regulate gun sales nationwide. The Cato Institute’s Gene Healy and Robert A. Levy have written elsewhere that national litigation reform legislation to bar such gun lawsuits is a violation of federalism principles, but the Beretta case shows how misguided that position is: individual states (and, in the case of DC, a single city) can create liability regimes that affect interstate commerce nationally. Healy and Levy suggest that the remedy for businesses is to “withdraw from doing business in a state that has an oppressive tort regime” but that doesn’t help gun manufacturers who don’t do business in the District of Columbia to begin with.
Update: Illinois Senate defeats gun-suit bills
On Apr. 7 I wrote (prematurely as it turned out) that the Illinois legislature had killed two bills which would have encouraged lawsuits against gun manufacturers and dealers, the bills having been defeated in the Judiciary committee of the Illinois Senate. Sought by Chicago Mayor Richard Daley, the bills were aimed in part at reviving his litigation against gun dealers and manufacturers, which had been thrown out by the state Supreme Court. However, Daley’s allies in the legislature hastily got a different committee in the state’s upper house, the Executive Committee, which is more heavily dominated by members from Chicago, to give its narrow approval to the measures in order to bring them to the floor (Brian Mackey, “Gun-control measures approved”, Copley/Peoria Journal-Star, Apr. 14). To no avail: the full Senate defeated both measures Thursday night by 24-31 votes. (John O’Connor, “Gun bills fail to pass Senate”, AP/Bloomington Pantagraph, Apr. 15).
United Mine Workers of America
It’s among supporters of federal legislation to protect the firearms industry from abusive litigation, as are less surprising counterparts on the business side such as the National Association of Manufacturers, U.S. Chamber of Commerce and National Association of Wholesaler-Distributors. (UMWA letter at National Shooting Sports Federation site (PDF), with other statements of labor support as addendum; Mar. 15 House testimony of NSSF’s Lawrence Keane).
Gun roundup
Legislation is once again moving through Congress to pre-empt lawsuits which seek to saddle the manufacturers and lawful sellers of guns with the costs of crime. At the request of supporters of H.R. 800, the Protection of Lawful Commerce in Arms Act, I wrote a letter to the House Judiciary Committee explaining why such a bill is warranted now more than ever (longtime readers may recall that I testified on the Hill two years ago in favor of the measure). The new letter is here. (More: Mar. 15 hearings; chairman’s opening statement.)
Also, the Illinois legislature has soundly defeated efforts, backed by Chicago Mayor Daley and pro-gun-litigation groups, to alter state law so as to encourage lawsuits against gun dealers (“More Daley-backed gun bills go down in Senate committee”, AP/KWQC, Mar. 15; “House rejects measure to let victims sue gun dealers”, AP/KWQC, Apr. 6). (Update Apr. 16: backers revive measures, but they are defeated on floor of Ill. Senate). And David Hardy of the extremely promising-looking new blawg Arms and the Law finds that when law reviews present a viewpoint one-sidedly hostile to the right of individual gun ownership, it’s sometimes owing to the careful spadework of a generous outfit called the Joyce Foundation (Apr. 3)(further controversy on last point: here and here).
NYC gun-suit law
Lawprofs Anthony Sebok (Brooklyn) and Timothy Lytton (Albany) tend to view firearms liability litigation in a much more favorable light than I do. They agree, however, that New York City’s Gun Industry Responsibility Act, signed into law by Mayor Bloomberg earlier this year (Feb. 6; more), “may do more harm than good” and is likely to assist efforts in Congress to protect the gun industry from being taken to court over criminal misuse of weapons. They also say GIRA raises a second problem, little discussed so far: “whether local municipalities can create their own tort law, independent of their state legislatures or courts”. (“New York City’s Gun Industry Responsibility Act: Why It May Do More Harm than Good”, FindLaw, Mar. 7).
Victory in California
An appeals court has upheld a trial judge’s rejection of the lawsuit by San Francisco and nine other California cities and counties, which had sought to find the gun industry legally culpable for not instituting sales restrictions that go beyond any required by state or federal law. (Bob Egelko, “Court rejects suits against gun makers”, San Francisco Chronicle, Feb. 11). See Aug. 30, 2003, and our firearms litigation page generally.