Category: Law

The case is Adames, et al v. Beretta USA Corp, and they are asking that the Supreme Court review the constitutionality of the Protection of Lawful Commerce in Arms Act, which immunizes manufactures, distributors, and dealers from certain types of lawsuits in federal and state court.  As SCOTUSBlog points out:

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.

Under standard product liability law, manufacturers are liable for defects in design.  Typically this requires a manufacture to make a product more safe if they can possibly do so, without impacting its function.  The problem is, the function of a gun is to send a chunk of metal flying at very high speed out the barrel if you pull the trigger.  In this case, a gun was pointed at someone, and the trigger was pulled.  That the user did not know how to unload a firearm properly is not the fault of the manufacturer.

No doubt the plaintiff will claim a simple change in the design to include a magazine disconnect safety would have made the firearm safer without impacting the function.  But this is not really the case, especially for a police officer, as there are situations where you want the round in the pipe to go off even if the magazine is out.  Magazine disconnects are also dangerous in and of themselves, for reasons we’ve covered on here.

But the question of whether PLCAA preempts such lawsuits is an interesting one.  If you look at the language of the act, it gives this exception to the lawsuit immunity:

(v) an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage

I would say if this was just a standard argument of defect in design, this exception would apply.  But it’s the last part on “caused by a volitional act that constituted a criminal offense.” that probably makes the Adames unable to claim this exemption, because pointing a gun at someone and pulling the trigger is a criminal act, even if unintentional.  In fact, the Illinois Supreme Court recognized this, and restored the summary judgement of a lower court in favor of the defendant (Beretta).

The petition for cert is essentially asking to the Court to find the PLCAA unconstitutional under the 10th Amendment, which I think is a bit of a hail mary argument, considering preempting state tort actions that affect the interstate market in a product is pretty clearly within Congress’ commerce cause powers.  But they go further to argue along these grounds:

Congress’ clearly expressed preference for legislative determinations of grounds for liability over judicial applications of the common law in the PLCAA dictate to the States how its law must be made, at least when liability is to be assessed against the firearms industry. 15 U.S.C. § 7903(5)(A)(iii) (creating an exception to the immediate-dismissal dictate so long as the lawsuit is authorized by certain legislative actions); see also 15 U.S.C. § 7903(2)(a)(7) (finding stating that liability actions against gun manufacturers and dealers could only be imposed “by a maverick judicial officer or petit jury [and] would expand civil liability in a manner never contemplated by the framers of the Constitution, by Congress, or by the legislatures of the several States”) (emphasis added); Id. at § 7901(a)(8) (finding stating that plaintiffs in the actions intended to be preempted were “us[ing] the judicial branch to circumvent the Legislative branch”).

They are basically arguing that Congress only intended to usurp state judicial authority rather than legislative authority citing this exception as evidence:

(iii) an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product

But this section also includes two examples that give some idea of what Congress meant, and I don’t think it’s favorable to the plaintiff in this case.  I think Congress did intend to preempt state laws that would hold gun manufacturers accountable for third party criminal acts.  What Congress did not intend to do is preempt state law regarding the sale and marketing of firearms.  I think the Illinois Supreme Court got it right.  I expect the Supreme Court will decline to hear this case.

Ry points out that ATF does not seem to have the pin & weld method in their April 2009 handbook, meaning hundreds of thousands, possibly millions of gun owners out there could have just become instant felons!  ATF has considered pinned and welded extensions to a barrel to be part of the barrel for purposes of determining length under the National Firearms Act.  This Bushmaster, for instance, would be a Short Barreled Rifle under this new rule, and would fall under NFA requirements.  Current owners would have to register them with ATF as SBRs, or face prosecution.

Typically, something like this is not as simple as ATF making a change to its handbook.  You have a few different federal laws that govern the changing of rules.  Namely the Federal Register Act of 1935 and the Administrative Procedure Act of 1946, along with a few others.  A quick search of the Federal Register doesn’t show any rule change about pinning and welding barrels, but the Code of Federal Regulations also contain nothing the stipulates flash hiders, brakes, or other items pinned and welded to the end of a barrel count toward barrel length.

This means that the pin and weld technique was an “agency determination” rather than a rule or regulation.  ATF is infamous for preferring to exercise it’s regulatory power this way rather than use rule making, which is a more controlled and predictable process.  Regulated persons or entities can challenge an agency determiniation, in which case the courts will review under the standard that the decision was “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.”  There’s no set standard for what is arbitrary or capricious, but typically it would mean that ATF’s determiniation has no basis in law.  ATF does not have a good track record with its determiniations.  See Vollmer v. Higgins, which was an NFA case:

It is true that the National Firearms Act covers machineguns, as well as short-barrelled rifles and shotguns, even if they have been modified, so long as they can be “readily restored.” 26 U.S.C. Sec. 5845(b), (c), & (d).5 Neither the Act nor the Bureau’s regulations, however, define “readily restored.” See 26 U.S.C. Sec. 5845; 27 C.F.R. Sec. 179.11. We do know that, in the Bureau’s view, “firearms” subject to the Act may be excluded from coverage if they are “[a]lter[ed] by removing the feature or features that cause[d] the weapon to be classified as an NFA firearm.” FIREARMS ENFORCEMENT PROGRAM, ATF Order 3310.4B p 83(e)(2), at 43 (Feb. 8, 1989). Alterations of this sort include welding an extension onto a rifle or shotgun barrel; and welding closed a slot on certain handguns to prevent the attachment of a shoulder stock. Id. p 83(f)(2) & (4), at 43. The Bureau must believe that if welding removes a critical feature, the firearm cannot be “readily restored” and it therefore can be removed from the firearm classification. In the case of the modified HK receiver, the critical features were the lack of the attachment block and the presence of a hole. Vollmer’s welding the attachment block back onto the magazine and filling the hole it had drilled do not appear to be significantly different from the operations the Bureau describes as sufficient to remove a short-barrelled rifle or shotgun from the category of “firearm.” It would seem to follow that Vollmer’s operations thus removed the HK receiver from the category of machinegun.

So I think we would have room to challenge ATF’s determiniation in court.  For people who already own these firearms, the legal hazard was always there, because you’re possessing a firearm in a legal grey area in regards to barrel length.  Determinations don’t really mean crap if an ambitious AUSA wants to try to stick it to you.  But if I were to put money on it, ATF’s determiniation won’t hold up in court, especially if they try to argue that a millions of gun owners suddenly being made criminals isn’t really a problem, considering they are still allowing for extension by other methods that are really no better than pin and weld.

Do the anti-gun folks still want to come argue that the gun industry is unregulated, and guns are less regulated than teddy bears?