BECKMAN AND ASSOCIATES
BY: Bradley T. Beckman, Esquire
IDENTIFICATION NO. 53765
BY: Shane J. Harrington, Esquire
IDENTIFICATION NO. 88807
TWO PENN CENTER PLAZA
SUITE 910
PHILADELPHIA, PA 19102
(215) 569-3096
Attorneys for Defendant
Lou’s of Upper Darby, Inc.
Anthony Oliver, Sr., Administrator of the Estate of :
ANTHONY DANIEL OLIVER, JR., Deceased;
: COURT OF COMMON PLEAS
and Anthony Oliver, Sr., and Sheree Goode, in their : PHILADELPHIA COUNTY
own right
:
Plaintiffs,
: JULY TERM, 2005
v.
: NO. 001836
:
LOU’S OF UPPER DARBY, INC. and
: JURY TRIAL DEMANDED
PHOENIX ARMS
:
: ORAL ARGUMENT REQUESTED
Defendants.
:
:
MEMORANDUM OF LAW IN SUPPORT OF PRELIMINARY OBJECTIONS OF
DEFENDANTS LOU’S OF UPPER DARBY, INC.
TO PLAINTIFFS’ AMENDED COMPLAINT
Defendants Lou’s of Upper Darby, Inc. (hereinafter “Lou’s”), by and through its counsel,
Beckman and Associates, file its Memorandum of Law In Support of their Preliminary
Objections to Plaintiffs’ Amended Complaint.
FOREWARD
On October 26, 2005, President George W. Bush signed into law the Protection of
Lawful Commerce in Arms Acts (“PLCAA” or “Act”) as enacted by the Congress of the United
States. The Act clearly mandates that this lawsuit be dismissed by this Honorable Court.
The Preamble to the Act clearly states that it is “[a]n act to prohibit civil liability actions
from being brought or continued against manufacturers, distributors, dealers, or importers
of firearms or ammunition for damages, injunctive or other relief resulting from the misuse
of their products by others." (emphasis added). See Protection of Lawful Commerce in Arms
Act, 119 Stat 2095, a true and correct copy of which is annexed hereto and incorporated herein
as Exhibit “1”. In §3(b) of the Act, Congress addressed the issue of presently pending litigation
and required that a “qualified civil liability action that is pending on the date of enactment
shall be immediately dismissed”. (Emphasis added) PLCAA §3(b), 119 Stat 2095. The instant
lawsuit clearly falls within the statutory definition of “qualified civil liability action” and,
therefore, this lawsuit must be dismissed.
INTRODUCTION
The Plaintiffs are seeking damages from the retailer (Lou’s of Upper Darby, Inc.,
hereinafter “Lou’s”) and the manufacturer (Phoenix Arms) for the lawful distribution and sale of
a firearm. Noticeably absent from the lawsuit is Quamere Durham who has been indicted for the
death of Anthony Oliver, Jr. Simply put, the Plaintiffs’ decedent, Anthony Oliver Jr., was shot to
death by his friend Quamere Durham. Pltfs.’ Amen. Cmplt. at ¶¶5, 9 and 11. (Exhibit “2”
hereto). There can be no question that the shooting death of young Mr. Oliver was indeed a
horrific tragedy; however, the fact that the subject firearm was left unattended, unlocked and
apparently loaded, in the Durham household so that it could find its way into the hands of 13year old Quamere Durham was an event that could not have been prevented by the retailer
(Lou’s) or by the manufacturer (Phoenix Arms). The only persons who are potentially liable for
the damages sought by Plaintiffs are (a) Quamere Durham or his parents and/or lawful guardians,
or (b) Jerry Battle, the purchaser of the subject firearm, for allowing it to fall into the unlawful
possession of young Mr. Durham. Plaintiffs’ Amended Complaint at ¶ 22.
2
Once Lou’s completed the lawful sale of the subject firearm by first obtaining the
required federal and state approvals for sale of the subject firearm to Mr. Battle, Lou’s no longer
had any ability to control what Mr. Battle did with the firearm, including where he maintained or
stored it, or anything else with respect to that gun. Plaintiffs’ assert that Lou’s sold the subject
Phoenix Arms firearm to Jerry Battle (Plaintiffs’ Amended Complaint at ¶ 22) and, without any
support, further allege that “[a]t least one of the guns sold by Lou’s Loans to Jerry Battle, the
Phoenix Arms handgun, was trafficked, and then illegally obtained by Quamere Durham, an
illegal and irresponsible possessor, and then used to shoot and kill Anthony Oliver Jr.”.
Plaintiffs’ further allege, again without support, that Lou’s was “supplying gun traffickers and/or
criminals and other unauthorized users, and that Jerry Battle not buying guns for a legitimate
purpose and that Phoenix Arms handgun would likely be trafficked to illegal users”. (sic) Pltfs.’
Amended Cmplt. at ¶¶ 26 and 43. Lou’s complied with all applicable federal and state laws by
having the purchaser, Jerry Battle, complete the required ATF Form 4473, Firearms Transaction
Record, and the Pennsylvania State Police counterpart to such ATF form, and then obtaining the
Bureau of Alcohol, Tobacco and Firearms (“BATF”) and the Pennsylvania State Police
approvals for this sale to proceed. The purchaser, Jerry Battle, successfully passed all of the
required federal and state background checks that the law required before Lou’s consummated
the sale. Lou’s properly complied with all applicable federal and state requirements before
selling the subject firearm to Jerry Battle - - the BATF approval was received, the Pennsylvania
State Police similarly gave its “green light” for the transaction to proceed, and Mr. Battle
lawfully purchased the subject Phoenix Arms firearm.1 Any inferences from the Plaintiffs to the
contrary are simply baseless.
1
Lou’s acknowledges that the ATF Form 4473 and Pennsylvania State Counterpart (copies of which are annexed
hereto as Exhibit “C”) are outside of the record for purposes of the Court’s consideration of a party’s Preliminary
3
It is clear that neither Lou’s nor Phoenix Arms may be held liable for the sale of a nondefective product, legally produced and sold, which functions as intended, by reason of the
occurrence of subsequent, remote intervening criminal acts. This is exactly what the legislature
determined should not be permitted to continue when it passed the PLCAA and the President
signed it into law on October 26, 2005.
LEGAL ARGUMENT
I.
THIS CASE MUST BE DISMISSED PURSUANT TO THE PROTECTION OF
LAWFUL COMMERCE IN ARMS ACT.
The Protection of Lawful Commerce in Arms Act (“PLCAA” or “Act”) provides at
Section 3:
PROHIBITION ON BRINGING OF QUALIFIED CIVIL LIABILITY ACTIONS IN
FEDERAL OR STATE COURT.
(a) IN GENERAL. A qualified civil liability action may not be brought in any
Federal or State court.
Section 3(b) of the PLCAA further provides that:
(b) DISMISSAL OF PENDING ACTIONS.--A qualified civil liability action that
is pending on the date of enactment of this Act shall be immediately
dismissed by the court in which the action was brought or is currently
pending.
PLCAA §3, 119 Stat 2095 (emphasis supplied).
The PLCAA, in §5(A) defines a “qualified civil liability action”, in pertinent part, as
follows:
(5) QUALIFIED CIVIL LIABILITY ACTION.-(A) IN GENERAL.--The term "qualified civil liability action" means a civil
action or proceeding or an administrative proceeding brought by any person
against a manufacturer or seller of a [firearm] …. for damages, punitive damages,
Objections under Pa.R.C.P. 1028. However, there is no issue concerning whether the sale of the firearm at issue in
this case was sold in compliance with applicable laws and Plaintiffs have not alleged any violation of applicable
state or federal law regarding the sale.
4
injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other
relief, resulting from the criminal or unlawful misuse of a [firearm] by the person
or a third party, but shall not include…..2
PLCAA §5(A), 119 Stat 2095.
The Plaintiffs’ Amended Complaint is (i) a civil action, (ii) brought against a
manufacturer (Phoenix Arms) and a seller (Lou’s) of a firearm, (iii) for damages, punitive
damages, penalties or other relief, (iv) resulting from the criminal or unlawful use of a firearm by
a third party (Quamere Durham) . As such, the mandate of the PLCAA is crystal clear - - the
Plaintiffs’ Amended Complaint must be dismissed by this Honorable Court.
The preamble to the Act states that the PLCAA is “[a]n act to prohibit civil liability
actions from being brought or continued against manufacturers, distributors, dealers, or
importers of firearms or ammunition for damages, injunctive or other relief resulting from the
misuse of their products by others." (emphasis supplied). (PLCAA preamble, 119 Stat 2095).
Congress clearly stated that it is the purpose of the Act “[t]o prohibit causes of action against
manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their
trade associations, for harm solely caused by the criminal or unlawful misuse of firearm
products or ammunition products by others when the product functioned as designed and
intended.” (PLCAA §2(b)(1), 119 Stat 2095).
In this lawsuit, the purchaser of the firearm was Jerry Battle, a person over whom neither
Lou’s, the retailer, nor Phoenix Arms, the manufacturer, had any control once the sale was
lawfully consummated. The subject firearm was lawfully manufactured and sold by Phoenix
Arms to a wholesale distributor who is not a party to the instant suit, and thereafter was lawfully
sold to Lou’s and was subsequently lawfully sold by Lou’s to Mr. Battle. Despite this lawful
2
The exceptions to the statutory definition of a “qualified civil liability action” will be discussed infra. Defendants
note, however, that none of the six specifically enumerated exceptions to such definition encompass the claims set
forth in the Plaintiffs’ Amended Complaint and, therefore, cannot save this lawsuit from dismissal.
5
chain of events, the Plaintiffs seek to hold these Defendants liable for the unlawful and criminal
acts of Quamere Durham, a thirteen year old boy who had no connection to the initial lawful sale
of the subject firearm to Mr. Battle. It is indisputable that it is Quamere Durham, not Lou’s or
Phoenix Arms, who is primarily responsible for this tragic incident. How Quamere Durham
came to be in possession of the subject firearm is not presently known, but it certainly was not
through the fault of any Defendant in this case. Pursuant to the clear and unequivocal terms of
the PLCAA, the Defendants in this matter cannot be held liable for the criminal conduct of Mr.
Durham or anyone else. The Plaintiffs’ acknowledge that Mr. Durham has been charged as an
adult with third-degree murder and is currently under electronically-monitored house arrest
pending the adjudication of his criminal charges. See Pltfs.’ Amended Complt. at ¶12.
In passing the Act, Congress made a number of findings, including that the “manufacture,
importation, possession, sale, and use of firearms … are heavily regulated” (PLCAA § 2(a)(4),
119 Stat 2095); that the businesses involved in the firearms industry should not be liable for the
harm caused by the misuse of their products when they function as designed (emphasis
supplied)(id. § 2(a)(5)); and that actions against members of the firearms industry based on
the unlawful use of firearms is an abuse of the legal system and an unreasonable burden on
interstate and foreign commerce. (emphasis supplied) (id. § 2(a)(6)).
Lou’s of Upper Darby, Inc. therefore respectfully requests that the Plaintiffs’ Amended
Complaint be dismissed in accordance with the requirements of the Protection of Lawful
Commerce in Arms Act.
II.
DEMURRER TO COUNT III (NEGLIGENT ENTRUSTMENT) OF PLAINTIFFS’
COMPLAINT PURSUANT TO PENNSYLVANIA RULES OF CIVIL
PROCEDURE 1028(a)(4) FOR LEGAL INSUFFICIENCY OF THE PLEADING.
6
Recognizing the application of the PLCAA to their claims, the Plaintiffs have attempted
to plead around the Act by filing an Amended Complaint with new allegations. These new
allegations asserted by the Plaintiffs in their Amended Complaint, however, do not save this
lawsuit from dismissal in accordance with the broad and clear mandate of the Act.
In order to determine whether the Plaintiffs’ claims can properly be considered to fall
within any one of the six (6) enumerated exceptions to the definition of “qualified civil liability
action” it is necessary to review that definition which provides, in pertinent part, as follows:
(5) QUALIFIED CIVIL LIABILITY ACTION.-(A) IN GENERAL.--The term "qualified civil liability action" means a civil action or proceeding or an
administrative proceeding brought by any person against a manufacturer or seller of a qualified product, or
a trade association, for damages, punitive damages, injunctive or declaratory relief, abatement, restitution,
fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by
the person or a third party, but shall not include -(i) an action brought against a transferor convicted under section 924(h) of title 18, United
States Code, or a comparable or identical State felony law, by a party directly harmed
by the conduct of which the transferee is so convicted;
(ii) an action brought against a seller for negligent entrustment or negligence per se;
(iii) an action in which a manufacturer or seller of a [firearm] knowingly violated a State or
Federal statute applicable to the sale or marketing of the [firearm], and the violation was a
proximate cause of the harm for which relief is sought, including-(I) any case in which the manufacturer or seller knowingly made any false entry in, or
failed to make appropriate entry in, any record required to be kept under Federal or State
law with respect to the [firearm], or aided, abetted, or conspired with any person in
making any false or fictitious oral or written statement with respect to any fact material to
the lawfulness of the sale or other disposition of a [firearm]; or
(II) any case in which the manufacturer or seller aided, abetted, or conspired with any
other person to sell or otherwise dispose of a [firearm], knowing, or having reasonable
cause to believe, that the actual buyer of the [firearm] was prohibited from possessing or
receiving a firearm or ammunition under subsection (g) or (n) of section 922 of title 18,
United States Code;
(iv) an action for breach of contract or warranty in connection with the purchase of the
[firearm];
(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; or
7
(vi) an action or proceeding commenced by the Attorney General to enforce the provisions of
chapter 44 of title 18 or chapter 53 of title 26, United States Code.
PLCAA §4 Definitions, at ¶5, 119 Stat 2095 (emphasis supplied).
As the foregoing makes clear, the PLCAA does preserve some types of qualified civil liability
actions from its terminal provisions. However, since there are only certain claims asserted in the
Plaintiffs’ Amended Complaint that they attempt to fit into an exception, Defendants believe
it is important to point out to the Court which exceptions are not relevant to the instant inquiry
as to whether any of Plaintiffs’ claims fall into an exception:
1.
There are no claims asserted against a transferor convicted under 18 U.S.C.
§924(h) or a similar state felony statute. Thus, the Plaintiffs’ claims cannot fall
into the first exception set forth at PLCAA §4 Definitions, at ¶5(A)(i).
2.
There are no claims in the Plaintiffs’ Amended Complaint that allege that Lou’s
or Phoenix Arms knowingly violated any federal or state statutes applicable to
the sale or marketing of a firearm, let alone being such knowing violations that
are alleged to be the proximate cause of the damages sustained by the Plaintiffs.
Thus, the Plaintiffs’ claims cannot fall into the third exception set forth at PLCAA
§4 Definitions, at ¶5(A)(iii).
3.
There are no claims asserted against Lou’s or Phoenix Arms for breach of
contract or breach of warranty related to the purchase of the subject Phoenix
Arms firearm. Thus, the Plaintiffs’ claims cannot fall into the fourth exception set
forth at PLCAA §4 Definitions, at ¶5(A)(iv).
4.
There are no claims asserted against Lou’s or Phoenix Arms for a design defect or
manufacturing defect in the subject firearm (i.e., there are no allegations sounding
in tort for “traditional” products liability claims). Thus, the Plaintiffs’ claims
cannot fall into the fifth exception set forth at PLCAA §4 Definitions, at ¶5(A)(v).
5.
Since this lawsuit is not one commenced by the Attorney General of the United
States to enforce the 18 U.S.C. Chapter 44 or 26 U.S.C. Chapter 53, the Plaintiffs’
claims cannot fall into the sixth exception set forth at PLCAA §4 Definitions, at
¶5(A)(vi).
Thus, the sole inquiry is whether the Plaintiffs’ claims can conceivably fall into the
second enumerated exception set forth at PLCAA §4 Definitions, at ¶5(A)(ii) which provides an
exception for “an action brought against a seller for negligent entrustment or negligence per se”.
8
The Plaintiffs’ Amended Complaint asserts claims of negligent entrustment and violations of 18
Pa. Cons. Stat. §§ 6504 and 6111(g)(6) (hereinafter referred to as the “negligence per se”
claims). The inclusion of these new allegations and causes of action clearly seeks to push the
proverbial “square peg” of these claims into one of the “round hole” exceptions set forth in the
Act.3 The PLCAA clearly and unequivocally applies to this lawsuit requiring its immediately
dismissal, notwithstanding the Plaintiffs’ effort to “plead around” the direct legislative intent of
the Act.
Plaintiffs’ Amended Complaint at Count III avers that Defendants are liable to Plaintiff
for negligently entrusting the subject firearm, which was ultimately criminally misused by Mr.
Durham. However, in order for the Plaintiffs’ negligent entrustment claim to survive, it must fit
within the PLCAA’s definition of “negligent entrustment”4. Section 4(5)(b) of the PLCAA
specifically defines that term as follows:
(B) NEGLIGENT ENTRUSTMENT.--As used in subparagraph (A)(ii), the term "negligent entrustment"
means the supplying of a [firearm] by a seller for use by another person when the seller knows, or
reasonably should know, the person to whom the product is supplied is likely to, and does, use the
product in a manner involving unreasonable risk of physical injury to the person or others.
PLCAA §4(5)(B), 119 Stat 2095 (emphasis supplied)
The facts as plead by the Plaintiffs establish that the exception in the PLCAA for
negligent entrustment does not apply. Specifically, Plaintiffs concede that Lou’s sold the
firearm to Jerry Battle, not Quamere Durham. Mr. Battle was a lawful purchaser of the subject
firearm. Lou’s did not have any contact with Quamere Durham, either at the time of the sale to
Mr. Battle or at any other time. Quite simply, they did not “entrust” the firearm to Mr. Durham,
3
The legal insufficiencies of the Plaintiffs’ negligence per se claims under the PLCAA are discussed in detail
below. See infra Sections II, III and IV.
4
The PLCAA’s definition of negligent entrustment is controlling rather than traditional common law or state law
definitions of that principle of tort law.
9
and there is no connection known to Lou’s as to how the 13 year old Quamere Durham ended
up in the possession of the firearm lawfully sold to Jerry Battle.
Second, Mr. Battle did not “use the product in a manner involving unreasonable risk of
physical injury to the person or others”, let alone use the product in such a manner that its use
would have been known or reasonably should have been known by Lou’s. PLCAA §4(5)(B),
119 Stat 2095. In fact, the Plaintiffs’ Amended Complaint is devoid of any allegations that
relate to Mr. Battle’s possession or use of the subject firearm.
Thus, it is clear that the “negligent entrustment exception”, as set forth in PLCAA
§4(5)(B), does not apply in the instant case. Further, Plaintiffs’ allegations set forth no facts
which would support its claim of negligent entrustment against Defendants to satisfy the
requirements of Pa. R. C. P. 1028(a)(4). Under these circumstances, the allegations of Count III
of Plaintiffs’ Amended Complaint should be dismissed.
III.
DEMURRER TO COUNTS V AND VI (NEGLIGENCE PER SE) OF
PLAINTIFFS’ AMENDED COMPLAINT PURSUANT TO PA RULES OF
CIVIL PROCEDURE 1028(a)(4) FOR LEGAL INSUFFICIENCY OF THE
PLEADING AND PURSUANT TO THE PLCAA.
A.
The Plaintiffs’ Claims in Count V Must Be Dismissed
For Legal Insufficiency of Pleading.
Plaintiffs’ Count V avers that both Lou’s and Phoenix Arms have committed a statutory
violation and, consequently, are liable to Plaintiff for negligence per se by reason of violating 18
Pa.C.S.A. § 6504, a criminal statute that provides as follows:
§ 6504. Public nuisances
Whoever erects, sets up, establishes, maintains, keeps or continues, or causes to be
erected, set up, established, maintained, kept or continued, any public or common
nuisance is guilty of a misdemeanor of the second degree. Where the nuisance is in
existence at the time of the conviction and sentence, the court, in its discretion, may
direct either the defendant or the sheriff of the county at the expense of the defendant to
abate the same.
10
18 Pa.C.S.A. § 6504.
No criminal complaint has been filed against Lou’s or Phoenix Arms. There is no
private right of civil prosecution under §6504. Unquestionably, the Commonwealth is well
aware of the circumstances of the tragic shooting of Anthony Oliver, Jr. by Quamere Durham –
Durham is under house arrest pending trial as an adult on charges of murder in the third degree.
Plaintiffs Amended Complaint at ¶ 12. The Commonwealth has not commenced an action
against Lou’s or Phoenix Arms pursuant to 18 Pa.C.S.A. §6504. Absent a conviction of the
defendants by the Commonwealth for a violation of 18 Pa.C.S.A. § 6504, there can be no
negligence per se cause of action. Therefore, this claim must be rejected as a matter of law.
The Defendants respectfully request that the Plaintiffs’ claims under Count V of the
Amended Complaint be dismissed.
B.
The Plaintiffs’ Claims in Count VI Must Be Dismissed
For Legal Insufficiency of Pleading.
Plaintiffs’ Count VI avers that Lou’s committed statutory violations and, consequently,
are liable to Plaintiffs for negligence per se by reason of the alleged violation of 18 Pa. C.S.A.
§6111(g)(6).
As an initial matter, 18 Pa. C.S.A. §6111, et seq. relates to the conditions that must be
satisfied before a seller of a firearm may sell or otherwise transfer a firearm to another person. A
true and correct copy of the relevant statute, 18 Pa. C.S.A. §6111, et seq., is annexed hereto as
Exhibit “4” and incorporated herein by reference. This statute is a criminal statute providing for
criminal penalties for the violation of its provisions5.
5
By its very terms, this Pennsylvania statute has absolutely no application to a firearm manufacturer such as
Phoenix Arms, and there is no allegation that Phoenix Arms violated this statute. The Plaintiffs’ allegations of
negligence per se for violation of this statutory provision are directed only at Lou’s.
11
The section of this statute cited by the Plaintiffs as a basis for the negligence per se
claims set forth in Count VI against Lou’s only addresses penalties for criminal conduct. That
is, the Plaintiffs have alleged that Lou’s is liable to the Plaintiffs’ for negligence per se by
reason of its violation of 18 Pa. C.S.A. §6111(g)(6), which provides as follows:
(g) Penalties.—
(6) Notwithstanding any act or statute to the contrary, any person, licensed importer,
licensed manufacturer or licensed dealer who knowingly and intentionally sells or
delivers a firearm in violation of this chapter who has reason to believe that the firearm is
intended to be used in the commission of a crime or attempt to commit a crime shall be
liable in the amount of the civil judgment for injuries suffered by any person so injured
by such crime or attempted crime.
Simple logic dictates that in order to obtain “penalties” under §6111(g)(6), there would
necessarily first need to be a conviction for a violation under the substantive provisions of
§6111. Since Lou’s clearly complied with the provisions of this statute before transferring the
subject firearm to Jerry Battle, there can be no such criminal violation. The Plaintiffs have not
pursued a private criminal complaint nor has Lou’s been indicted or otherwise charged for any
violation of §6111 that arises out of or in any way relates to the transaction involving the lawful
sale of the subject Phoenix Arms pistol to Jerry Battle.
Lou’s, as a dealer of firearms, is required to abide by certain provisions of §6111(a) and
(b). Specifically, §6111(a) sets forth the time requirements under which the seller of a firearm
may deliver a firearm to a purchaser. See, e.g., 18 Pa. Cons. Stat. Ann. §6111(a)(1). Further,
§6111(b) sets forth additional duties on the part of the dealer, such as requiring certain
paperwork and information be obtained from the purchaser and provided to the Pennsylvania
State Police. See, e.g., 18 Pa. Cons. Stat. Ann. §6111(b)(1).
12
Lou’s fully complied with the state and federal requirements with respect to its
transaction with Mr. Battle. The appropriate federal and state forms were completed, submitted
to the appropriate law enforcement agencies for their conduct of background checks on the
purchaser, and, thereafter, Lou’s received the “green light” for the sale to Mr. Battle to proceed
upon receiving the NICS approval codes from the BATF and the Pennsylvania State Police
(indicating that Mr. Battle successfully passed the background checks performed by such law
enforcement authorities). Under these circumstances, there can be no violation of any provision
of 18 Pa. Cons. Stat. Ann. § 6111. Without a violation, the Plaintiffs’ reliance on the
“penalties” provision of the statute must fail.
Based on the foregoing, Defendant Lou’s of Upper Darby, Inc. respectfully requests that
the claims contained in Count VI of Plaintiffs’ Amended Complaint be dismissed.
C.
18 Pa. Cons. Stat. Ann. §6504 Is Not A “Statute Applicable To The
Sale or Marketing of [Firearms]” Under the Plain and Unambiguous
Language of the PLCAA and Must Be Dismissed.
The Plaintiffs’ allegations also cannot fit within the third exception to a “qualified civil
liability action” under PLCAA § 4(5)(A)(iii). Section 4(5)(A)(iii) provides:
A “qualified civil liability action” . . . shall not include –
****
(iii) an action in which a manufacturer or seller of a [firearm]
knowingly violated a State or Federal statute applicable to the sale or
marketing of the [firearm], and the violation was a proximate cause
of the harm for which relief is sought, including –
(I) any case in which the manufacturer or seller knowingly made
any false entry in, or failed to make appropriate entry in, any
record required to be kept under Federal or State law with respect
to the qualified product, or aided, abetted, or conspired with any
person in making any false or fictitious oral or written statement
with respect to any fact material to the lawfulness of the sale or
other disposition of a qualified product; or
13
(II) any case in which the manufacturer or seller aided, abetted,
or conspired with any other person to sell or otherwise dispose of
a qualified product, knowing, or having reasonable cause to
believe, that the actual buyer of the qualified product was
prohibited from possessing or receiving a firearm or ammunition
under subsection (g) or (n) of § 922 of title 18, United States
Code. . . .
PLCAA §4(5)(A)(iii), 119 Stat 2095. (emphasis supplied)
The starting point in statutory interpretation is the statute’s plain meaning. United States
v. Daury, 215 F.3d 257, 260 (2d Cir. 2000). “Because ‘the meaning of statutory language, plain
or not, depends on context,’ King v. St. Vincent's Hosp., 502 U.S. 215, 221 (1991), the
interpretation of a statute requires consideration of the language of the relevant provision in
conjunction with the entire statute.” Yerdon v. Henry, 91 F.3d 370, 376 (2d Cir. 1996). “Words
are not pebbles in alien juxtaposition; they have only communal existence; and not only does the
meaning of each interpenetrate the other, but all in their aggregate take their purport from the
setting in which they are used.” Shell Oil Co. v. Iowa Dept. of Revenue, 488 U.S. 19, 25 n. 6
(1988) (quoting NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941) (Hand, J.)). “[I]n
expounding a statute, [the court is] not . . . guided by a single sentence or member of sentence,
but look[s] to the provisions of the whole law, and to its object and policy.” Massachusetts v.
Morash, 490 U.S. 107, 115 (1989) (quoting Pilot Life Ins. Co. v. Dedaux, 481 U.S. 41, 51
(1987)). See also Bailey v. United States, 516 U.S. 137, 142 (1995) (“We consider not only the
bare meaning of the word but also its placement and purpose in the statutory scheme.”).
It is clear from the plain meaning of the words used in PLCAA §4(5)(A)(iii) - - “statute
applicable to the sale or marketing of [firearms]” - - that phrase does not encompass the
alleged violations of the criminal nuisance statute that the Plaintiffs have leveled against the
Defendants. The most recent edition of Black’s Law Dictionary defines “apply” as: “2. To
14
employ for a limited purpose. . . 3. To put to use with a particular subject matter.” Black’s Law
Dictionary 109 (8th ed. 2004).
This statute (18 Pa. Cons. Stat. Ann. § 6504) cited by the Plaintiffs as the basis for their
negligence per se claims set forth in Count V of the Amended Complaint, on its face, says
nothing at all about firearms generally, let alone their sale or marketing. Rather, it is a statute of
general applicability which could apply to a wide range of conduct completely unrelated to
firearms and indeed, to date, has never been applied by a court to the sale or marketing of
firearms.6
The specific examples of statutory violations set forth in PLCAA § 4(5)(A)(iii)(I) and (II)
make clear that the term “statute applicable to the sale or marketing of [firearms]” refers to
statutes regulating the manner in which firearms are sold or marketed, not statutes of general
applicability like 18 Pa. CSA §6504. Each of the specific examples cited in the PLCAA - knowingly making a false entry in, or failing to make an appropriate entry in, any record required
to be kept under Federal or State law with respect to the firearm (§4(5)(A)(iii)(I)); aiding and
abetting, or conspiring with any person in making any false or fictitious statement with respect to
any fact material to the lawfulness of the sale or other disposition of a firearm (id.); and aiding
and abetting, or conspiring with any other person to sell or otherwise dispose of a firearm,
6
In fact, the notes to 18 Pa. Cons. Stat. Ann. § 6504 identify several matters other than firearms, to which the
statute has been applied or application has been rejected. Those matters have all been proceedings initiated by this
Commonwealth, not a private litigant, all of which were either land based or regulatory violations. See, e.g.,
Commw. v. McClung, 3 Clark 413 (1829) (finding nuisance for keeping a fierce dog); Commw. v. Claditis, 35
Beaver 128 (1976) (not permitted to use to regulate exhibition of obscene films); Commw. v. Edwards, 29 Northam.
150 (1944) (employees not responsible for nuisance for dumping garbage); Commw. v. Meyers, 8 C.C. 435, 6 Mont.
141, 2 Northam. 213 (1890) (no nuisance for playing baseball on “remote spot”); Lenhart v. Wright, 133 A. 495,
286 Pa. 351 (1926) (applying to obstruction on a highway); Commw. v. Miller Bros., 32 Dauph. 15 (1927) (relating
to management of property); Graffins v. Commw., 3 Pen. & W. 502 (1832) (no action against street commissioners
for failing to keep borough street in repair); Commw. v. Soulas, 16 Phila. 523 (1884) (pollution); Southeastern
Pennsylvania Transit Authority v. Commw., 289 A.2d 784, 5 Pa. Cmwlth. 128 (1971) (attempting to use to seek
abatement of emission of fumes); and Bradley v. South Londonderry Twshp., 440 A.2d 665, 64 Pa. Commwlth. 395
(1982) (applying to issues related to zoning acts and ordnances).
15
knowing, or having reasonable cause to believe, that the actual buyer of the firearm was
prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of
§922 of title 18, United States Code (§4(5)(A)(iii)(II) - - involves the violation of a statute
specifically governing the manner in which firearms are sold or marketed. Nothing in the
language of §4(5)(A)(iii) suggests that an expansive construction of the PLCAA should be
advanced to cover the state statute relied upon by the Plaintiffs. Employing such a broad
construction would open the “exception” up to violations of every conceivable type of statute,
civil or criminal, and permit the very same public nuisance actions at which the PLCAA was
chiefly aimed at terminating.
D.
18 Pa. Cons. Stat. Ann. §6504 Is Not a “Statute Applicable to
the Sale or Marketing of [Firearms]” Under Established
Principles of Statutory Construction.
The conclusion that §4(5)(A)(iii) is limited to violations of statutes regulating the manner
in which firearms are sold or marketed - - and therefore excludes 18 Pa. CSA § 6504 - - is
bolstered by well settled principles of statutory interpretation and construction. Two such
principles are noscitur a sociis (“it is known by its associates”) and ejusdem generis (“of the
same kind”).7 See 2A Sutherland Statutory Construction §§47.16, 47.17 (6th ed.). “The meaning
of one term may be determined by reference to the terms it is associated with, and where specific
words follow a general word, the specific words restrict application of the general term to things
that are similar to those enumerated.” General Electric Co. v. Occupational Safety and Health
Review Comm., 583 F.2d 61, 64-65 (2nd Cir. 1968).
Here, the general exception created in § 4(5)(A)(iii) for lawsuits based on a knowing
violation of “a State or Federal statute applicable to the sale or marketing of [firearms]” is
7
Lou’s contends that the PLCAA is clear and unambiguous and that these principles of construction merely support
that conclusion.
16
followed by a specific description in PLCAA §4(5)(A)(iii)(I) & (II) of the types of violations of
state and federal statutes that trigger the exception. The examples noted are intended to be
illustrative, rather than comprehensive, since they are prefaced by the word “including.” Most
importantly, all of the examples involve violations of state and federal statutes regulating the
manner in which firearms are sold or marketed. Under the principles of noscitur a sociis and
ejusdem generis, the exception in PLCAA §4(5)(A)(iii) is therefore limited to actions of the type
described therein, namely, violations of statutes regulating the manner in which firearms are sold
or marketed. See Molloy v. Metropolitan Transportation Auth., 94 F.3d 808, 811-12 (2nd Cir.
1996) (construing general term followed by “including, but not limited to,” as meaning only
things similar in nature to the specific items in the non-exclusive list of examples that followed);
United States v. Philip Morris USA Inc., 396 F.3d 1190, 1200 (D.C. Cir. 2005) (construing
remedies available under RICO as limited to those similar in nature to remedies enumerated as
examples following the phrase “including, but not limited to”). It is clear that there is nothing
about the Pennsylvania nuisance statute set forth at 18 Pa.CSA § 6504 that fits within (or
anywhere rationally related to) the parameters of the examples cited at PLCAA §4(5)(A)(iii)
because it is a statute of general applicability rather than one which regulates, even indirectly, the
manner in which firearms are sold or marketed.
Limiting § 4(5)(A)(iii) to actions for violations of firearm statutes is the only sensible and
proper interpretation of the statute. Any suggested construction to the contrary would write the
qualifying language “applicable to the sale or marketing of [firearms]” out of the PLCAA
altogether, or render it so elastic as to make it essentially meaningless. See Duncan v. Walker,
533 U.S. 167, 174 (2001) (“a statute ought, upon the whole, to be so construed that, if it can be
prevented, no clause, sentence, or word shall be superfluous, void, or insignificant”) (quoting
17
Market Co. v. Hoffman, 101 U.S. 112, 115 (1879)). If the violation of any statute of general
applicability which might, under particular circumstances or through creative pleading be argued
to apply to firearms, gave rise to an exception under PLCAA § 4(5)(A)(iii), there would be no
end to the suits that would be brought against firearm manufacturers and sellers, especially of the
type that Congress specifically intended to be precluded.
Moreover, such a construction would violate the principle that exceptions in a statute are
to be narrowly construed. See, e.g., Commissioner v. Clark, 489 U.S. 726, 739 (1989) (statutory
exceptions are to be construed “narrowly in order to preserve the primary operation of the
provision”); Tasini v. New York Times Co., 206 F.3d 161, 168 (2nd Cir. 2000) (narrowly
interpreting statutory exception in Copyright Act).
Most importantly, alternative construction would defeat the whole purpose of the Act.
Congress passed the Act to bring a halt to abusive lawsuits seeking to hold firearm
manufacturers and sellers liable for harm caused by the criminal misuse of their products
by third parties. (emphasis supplied) See PLCAA, §§ 2(a)(3); 2(a)(5)-(8); 2(b)(1). Congress
was well aware of the lawsuits that had been instituted against the industry and the fact that those
suits were based on claims of public nuisance - -including this very lawsuit which was
mentioned during the debate preceding the PLCAA’s passage. If the exception of PLCAA
4(5)(iii) were construed to permit suits to proceed under broadly framed public nuisance statutes
like § 6504, the exception would swallow the rule and render the Act meaningless. “A statute
should be interpreted in a way that avoids absurd results.” United States v. Dauray, 215 F.3d
257, 264 (2nd Cir. 2000). See also Commissioner v. Clark, 489 U.S. 726, 739 (1989) (“we
should not eviscerate [the] legislative judgment through an expansive reading of a somewhat
ambiguous exception”).
18
The Plaintiffs’ negligence per se claim does not fall within the exception set forth in the
PLCAA. Defendant Lou’s of Upper Darby, Inc. respectfully requests that the allegations of
Count V (Negligence Per Se) set forth in Plaintiffs’ Amended Complaint be dismissed.
V.
DEMURRER TO COUNT IV (PUBLIC NUISANCE) OF PLAINTIFFS’
COMPLAINT PURSUANT TO PENNSYLVANIA RULES OF CIVIL
PROCEDURE 1028(a)(4) FOR LEGAL INSUFFICIENCY OF THE
PLEADING AND PURSUANT TO THE PLCAA.
Plaintiffs’ Count IV avers that Defendants are liable to Plaintiff for creating and
maintaining a public nuisance. As a matter of law, Plaintiffs have failed to set forth a cognizable
public nuisance claim against the manufacturer, Phoenix Arms, and the retail seller, Lou’s, of the
handgun at issue. PLCAA §§2 and 3; see also City of Philadelphia v. Beretta U.S.A. Corp., 126
F. Supp. 2d 882, 909 (E.D. Pa. 2000) (“[s]urely if defective products cannot constitute a public
nuisance, then products which function properly do not constitute a public nuisance”) aff’d City
of Philadelphia v. Beretta U.S.A. Corp. 277 F.3d 415 (3rd Cir. (Pa.) 2002). “The refusal of many
courts to expand public nuisance law to the manufacturing, marketing, and distribution of
products conforms with the elements of public nuisance law”. Id. at 910.
In the present suit, as was the case in City of Philadelphia v. Beretta U.S.A. Corp., the
injurious acts with their harmful consequences are not created by the manufacturer or the retail
seller of the firearms, but by criminals and other actors, like Quamere Durham, who are
unlawfully in possession of firearms.
As was pointed out by the Court in City of Philadelphia v. Beretta U.S.A. Corp., gun
manufacturers and retailers do not wrongfully “use” their products; in fact, their products are
legal, as was the case here when Lou’s lawfully transferred the subject Phoenix Arms firearm to
the legal purchaser of the subject firearm. Id. at 911.
19
In dismissing all of the City of Philadelphia’s claims against the manufacturer
defendants, the Court cogently instructed that extending nuisance law to the manufacturer of a
firearm would run contrary to notions of fair play, declined to extend liability for the lawful
distributions practices of the manufacturer defendants, and noted that “[t]he Defendants have a
diminished ability to dictate precisely to whom their products will be sold once they ship them to
legally licensed distributors and dealers. More importantly, they lack direct control over how
end-purchasers use (or misuse) weapons.” Id. at 411 (emphasis supplied). This point also
underscores Defendants’ assertions regarding remoteness, foreseeability and lack of duty.
Echoing this logical conclusion from the City of Philadelphia decisions, Congress’
enacted the PLCAA to finally resolve any remaining issues concerning the liability of
manufacturers, distributors and retailers of firearms for “public nuisance” and other claims
arising from the sale of lawful, non-defective products in compliance with a host of federal, state
and other laws and regulations. Under this law, this Honorable Court is obliged to dismiss the
Plaintiffs’ public nuisance claims that the PLCAA now clearly precludes.
The Defendants lacked any control over how the legal end-purchaser of the firearm
would use the subject firearm, or how and to whom he may have later transferred it. Clearly, the
Defendants had no means of controlling how Quamere Durham, or others like him, who
unlawfully possess a firearm, might criminally misuse it. Once the handgun was lawfully sold by
Lou’s, the Defendants had no means to control how the lawful buyer (Jerry Battle) would use the
firearm or how he might intentionally or negligently allow someone else to come into
possession. Defendants do not know how 13-year old Quamere Durham came to be in possession
of the subject Phoenix Arms pistol, and there was nothing that the Defendants could conceivably
have done to prevent the tragedy that occurred at the hands of Mr. Durham, any more than
20
automobile dealers and manufacturers can prevent an automobile buyer from driving off the lot
and thereafter driving that car while intoxicated or allowing someone else to do so.
As the name suggests, a public nuisance is one that affects an interest common to the
general public, rather than unique to one individual or even several individuals. Accord, City of
Philadelphia v. Beretta U.S.A. Corp. 277 F.3d 415 (3rd Cir. (Pa.2002) Bubalo v. Navegar, Inc.,
1998 WL 142359, *1 (N.D. Ill., Mar. 20, 1998). Plaintiffs have tried to characterize their
negligence, wrongful death and survival action as an attempt to vindicate the “rights common to
the public, including public health, safety, comfort, and peace”. Pltfs.’ Amen. Cmplt. at ¶73.
However, Pennsylvania courts have already displayed a loathing to recognize a public nuisance
claim even when the entire City of Philadelphia and several civic organizations were the
Plaintiffs. City of Philadelphia v. Beretta U.S.A. Corp. 277 F.3d 415 (3rd Cir. (Pa.) 2002)
(“Pennsylvania precedent does not support the public nuisance claim Plaintiffs advanced here”).
It defies all logic for Plaintiffs in the case at bar to argue that they personally have a tenable
public nuisance claim as a result of a single criminal shooting (no matter how tragic that shooting
may be). Plaintiffs have wholly failed to allege a special injury to maintain a private nuisance
claim.
Plaintiffs allege that “Lou’s exercised control over its sale of guns to illegal gun
traffickers, straw purchasers, and other persons providing guns to the illegal market, illegal
traffickers, and illegal users.” Pltfs.’ Amen. Cmplt. at ¶74. Plaintiffs further allege that “[t]he
conduct of Defendants contributed to the creation or maintenance of the public nuisance and
Defendants were each capable of preventing their contribution to the public nuisance and
resulting danger and harm by altering their conduct.” Pltfs.’ Amen. Cmplt. at ¶75.
21
There are several problems with the allegations set forth in these two paragraphs, not the
least of which is that the statements concerning Lou’s “exercise of control over its sales of guns”
contained in Paragraph 74, which are the only statements specifically made with respect to
Lou’s. In the remainder of the allegations in Count IV Plaintiffs utterly fail to identify (1) the
“conduct” for which Lou’s should be held specifically liable and (2) the “conduct” of other
unspecified entities for which Lou’s or Phoenix Arms should be held liable.
It is well settled that manufacturers, distributors and retailers of firearms have no liability
as a result of eventual distribution to persons who commit criminal acts with them, even if they
should have known that the firearms were likely to be misused. City of Philadelphia v.
Beretta U.S.A. Corp., supra, 277 F. 3d at 424; Mazzillo v. Banks, supra at *2. (Emphasis
supplied). This principle of law has been codified in the recent PLCAA, discussed supra.
This public nuisance claim must be dismissed given the unambiguous holding of the Court
in City of Philadelphia v. Beretta U.S.A. Corp. and the United States Congress’ prohibition on
public nuisance claims against the firearms industry under the PLCAA. These judicial and
legislative prohibitions against maintaining such an action are entirely appropriate and logical
since, once a lawful sale of a firearm is made by a retailer, it is not possible for that retailer or
manufacturer to prevent the subsequent criminal misuse of that firearm, any more than a car
dealer and manufacturer can prevent a buyer from driving while drunk and fatally injuring
innocent third persons. The commission of criminal acts are subsequent intervening events that
necessarily break any legally cognizable theory under which the Defendants can be held
accountable for the lawful sale of their products.
Plaintiffs’ generalized and conclusory statement as to “Defendants” provide no basis for a
cognizable claim against Lou’s or Phoenix Arms, and the law as it has been interpreted by the
22
Pennsylvania Court’s and as it currently exists in this Commonwealth, especially the PLCAA,
affords manufacturers and retailers from liability for the criminal acts of others for which
Plaintiffs are now attempting to hold both Lou’s and Phoenix Arms accountable. Therefore,
Plaintiffs’ claims must fail as a matter of law.
Based on the foregoing, Lou’s of Upper Darby, Inc. respectfully request that the
allegations of Count IV (Public Nuisance) set forth in Plaintiff’s Amended Complaint be
dismissed.
VI.
DEMURRER TO COUNTS I and II (NEGLIGENCE) OF PLAINTIFFS’
AMENDED COMPLAINT PURSUANT TO PENNSYLVANIA RULES OF
CIVIL PROCEDURE 1028(a)(4) FOR LEGAL INSUFFICIENCY OF THE
PLEADING AND PURSUANT TO THE PLCAA.
Plaintiffs’ Count I avers that Defendant Lou’s is liable in negligence for the way in which
it “distributed and sold the Phoenix Arms handgun”. Pltfs.’ Amended Cmplt. at ¶15. Similarly,
in Count II the Plaintiffs allege that Defendant Phoenix Arms was negligent in its sale and
distribution of the firearm to Lou’s. Plaintiffs Amended Cmplt. at ¶¶59-62. To state a cause of
action for negligent sale of a firearm, the facts alleged must be sufficient to establish the
existence of a legal duty owed to Plaintiffs, and a subsequent breach of that duty.
“The well settled rule [is] that the question of liability for negligence cannot arise at all
until it is established that the party who has been negligent owed some duty to the person who
seeks to make him liable for negligence”. Carlesberg Resource Corp. v. Cambria Savings and
Loan Ass’n, 413 F. Supp. 880, 886 (W.D. Pa. 1976); Mazzillo v. Banks, supra, 1987 WL 754879
at *2.
The issue of whether the law imposes upon a firearm seller a legal duty to the plaintiff is
a question of law which may be determined upon preliminary objections. In the present action
23
Plaintiffs have only alleged that Defendants “distributed and sold the Phoenix Arms handgun in a
manner that caused it to be obtained by Quamere Durham, an illegal and reckless gun user and
possessor, and then to be used to kill Anthony Oliver, Jr.” Pltfs.’ Amen. Cmplt. at ¶ 15.
As a matter of law, Plaintiffs have failed to set forth a negligence cause of action because
they fail to identify any duty owed by Defendants to Anthony Oliver, Jr. to protect Plaintiffs’
decedent from the intervening criminal act(s) by Quamere Durham. Moreover, the firearm was
legally sold by Lou’s, as evidenced by the documents annexed hereto as Exhibit “3”, clearly
demonstrating that Lou’s complied with and received approval for the sale transaction from all
required federal, state and local authorities when it sold the subject firearm.
Plaintiffs fail to even allege what the purchaser, Jerry Battle, did with the firearm
following its purchase, or how that firearm might have come into the hands of Quamere Durham
through the breach of some duty owed by Lou’s. Additionally, there are no allegations that Mr.
Battle wrongfully or illegally transferred the subject firearm to the shooter, Quamere Durham. In
fact, the Plaintiffs’ pleadings are devoid of any allegations or evidence regarding this important
aspect of their claims - - that is, how did the subject firearm come to be in the hands of a thirteen
year old child? However that may have come to pass, it certainly was not through any act of
commission or omission by Lou’s or Phoenix Arms.
The injuries which Anthony Oliver, Jr. sustained as a result of the gunshot wound were
too remote from the alleged conduct of Defendants to base liability in negligence. Plaintiffs
allege that Defendants “owed foreseeable victims, including Anthony Oliver, Jr., a duty to use
reasonable care in their sale and distribution of the Phoenix handgun; they breached that duty by
failing to exercise reasonable care in their sale and distribution of Phoenix handgun and their
negligence caused the death of Anthony Oliver, Jr.” Pltfs.’ Amen. Cmplt. at ¶ 20.
24
However, this “general duty” to “foreseeable victims” that Plaintiff alleges to support
their position is unfounded in the law. Rather, the opposite is true. The majority of courts across
the country have overwhelmingly rejected attempts by plaintiffs to establish a duty owed by
firearms manufacturers, distributors and retailers to protect individuals from the criminal misuse
of their products. See, e.g., Young v. Bryco Arms, 213 Ill.2d 433 (Ill. 2004); Camden County
Bd. of Chosen Freeholders v. Beretta U.S.A. Corp., 273 F.3d 536 (3d Cir. (N.J.) 2001); Hamilton
v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 727 N.Y.S.2d 7 (2001); City of Cincinnati v. Beretta
U.S.A. Corp., et al., 2000 WL 1133078, *6 (Ohio Ct. App., Aug. 11, 2000), citing First
Commercial Trust Co. v. Colt’s Mfg. Co., Inc., 77 F.3d 1081 (8th Cir. 1996); Penelas v. Arms
Tech., Inc., 1999 WL 1204353 (1999), aff’d, 778 So.2d 1042 (Fla. Dist. Ct. App. 2001); Addison
v. Cody Wayne Williams, 546 So.2d 220 (La .Ct. App. 1989); Knott v. Liberty Jewelry and
Loan, Inc., 748 P.2d 661 (Wash. Ct. App. 1988); Armijo v. Ex Cam, Inc., 656 F. Supp. 771
(D.N.M. 1997); Patterson v. Rohm Gesellschaft, 608 F. Supp. 1206 (N.D. Texas 1985); Linton v.
Smith & Wesson, 469 N.E.2d 339 (Ill. Ct. App. 1984); King v. RG Industries, Inc., 451 N.W.2d
874 (Mich. Ct. App. 1990).
Additionally, courts and municipalities throughout the United States such as New
Orleans, LA, Bridgeport, CT, Miami-Dade County, FL, Camden County, NJ, Atlanta, GA,
Boston, MA, Cincinnati, OH, Wilmington, DE, Cincinnati, OH, Camden, NJ , Detroit/Wayne
County, MI, the State of New York, Newark, NJ, St. Louis, MO, Jersey City, NJ, Chicago, IL
and 12 California municipalities actions very similar to the present action pending before this
Court have either been dropped by the Plaintiffs, or dismissed by the Court. (Plaintiffs’
25
Washington, D.C.-based counsel at the Brady Center was involved in most, if not all, of those
other lawsuits that were unsuccessful).8
Pennsylvania has followed suit with the dismissal of claims like this. See City of
Philadelphia v. Beretta U.S.A. Corp., 126 F. Supp.2d 882, 900 (E.D. Pa. 2000) aff’d City of
Philadelphia, 277 F.3d 415, 2002 WL 29740 (3rd Cir. (Pa.) 2002).
Defendants had no legal duty to protect Plaintiffs’ decedent from the intervening criminal
acts of Quamere Durham, nor are there any conceivable ways that Defendants could have
prevented this tragedy from occurring. The criminal acts of the then 13-year old Mr. Durham
operate as sufficient and superseding cause as to cut off any purported liability that may (but
does not) lie with Defendants. PLCAA §2(b)(1), 119 Stat 2095.
It is undisputed, as it is alleged in Plaintiffs’ Amended Complaint, that Mr. Durham was
charged with third-degree murder and presently is under electronically monitored house arrest.
See Pltfs.’ Amen. Cmplt. at ¶12. Thus, it is axiomatic that Mr. Durham’s conduct and criminal
misuse of the firearm constituted an intervening and superseding cause. This intervening and
superseding cause serves to cut off any potential liability to Lou’s as well as the even more
remote manufacturer, Phoenix Arms. PLCAA §2(b)(1), 119 Stat 2095.
The Plaintiffs’ Amended Complaint sets forth no specific facts which would impose a
duty upon Defendants. Furthermore, the Plaintiffs allege no facts that would support their claim
8
It should be noted that the Plaintiffs’ attorneys from the Brady Center have been plaintiff’s counsel in many of the
municipal lawsuits that have been filed throughout the country. It is further noted that none of those lawsuits were
successful since it was uniformly held that the efforts at “legislating through litigation” were not legally cognizable.
As discussed above, the PLCAA was enacted to address these “abusive” actions that were simply aimed at
legislating firearm regulation through litigation. Indeed, in Section 2(a)(7) of the PLCAA, the United States
Congress specifically found that “[t]he liability actions commenced or contemplated by the Federal Government,
States, municipalities, and private interest groups and others are based on theories without foundation in hundreds
of years of the common law and jurisprudence of the United States and do not represent a bona fide expansion of the
common law”. There is no doubt that the “private interest groups” addressed by this Congressional finding are
organizations such as the Brady Center to Prevent Gun Violence Legal Action Project, co-counsel for Plaintiffs’
herein.
26
that there was a breach or causation (assuming a duty) to support their claims under Counts I and
II to satisfy the requirements of Pa. R. C. P. 1028(a)(4).
Under these circumstances as set forth in Plaintiffs’ Amended Complaint, the allegations
of Counts I and II should be dismissed as to both Defendants.
VII.
MOTION TO STRIKE PARAGRAPHS 27, 28, 29, 30, 31, 32, 33, 34, 35, 36,
37, 38, 39, 40, 42, and 47-58 OF PLAINTIFFS’ AMENDED COMPLAINT
PURSUANT TO PENNSYLVANIA RULES OF CIVIL PROCEDURE
1028(a)(2) FOR INCLUSION OF SCANDALOUS AND IMPERTINENT
MATTERS.
In the event that this Court does not dismiss the Plaintiffs’ claims on the grounds that
they are legally insufficient or subject to dismissal pursuant to the PLCAA, then the Court should
strike the scandalous and impertinent material included in the Plaintiffs’ Amended Complaint.
Pennsylvania law permits this Court to strike a pleading or a portion thereof for failing to
conform to law or a rule of court or inclusion of scandalous or impertinent matter. Pa. R. Civ. P.
1028(a)(2). The basis for such a preliminary objection is to eliminate from a complaint
allegations of fact “which are not material or relevant to the issue(s).” Berkebile v. Nationwide
Ins. Co., 6 D & C 3d 243, 248, 1997 WL 275 (C.P. Somerset Co. 1977). “To be scandalous or
impertinent, the allegations must be immaterial and inappropriate to the proof of the cause of
action”. Common Cause/Pennsylvania v. Commonwealth, 710 A.2d 108, 114 (Commw. 1998)
aff’d 562 Pa. 632, 757 A.2d 367 (2000). Where allegations are wholly irrelevant to the action
and without any influence in leading to the results of the judicial inquiry, said allegations should
be deemed impertinent. See Jefferies v. Hoffman, 417 Pa. 1, 207 A.2d 774 (1965).
Paragraphs 27-40, 42, and 47-58 of Plaintiffs’ Amended Complaint are nothing more
than editorials by the Plaintiffs and unsubstantiated allegations condemning the firearm industry
generally, and Defendants specifically for domestic gun violence rather than pleadings in any
27
manner relevant to Plaintiffs’ purported claim of the negligent sale of the subject Phoenix Arms
handgun that was criminally used to fatally injure Anthony Oliver, Jr.
For example, in Paragraph 27 of the Amended Complaint, Plaintiffs allege that “reports
and studies . . . have reported for years that convicted criminals, drug users and dealers, and other
persons with criminal intent who cannot purchase guns legally at retail stores, or do not want to
do so in order to avoid a paper trail connecting them to the gun, use the straw purchasers or
purchase guns from gun traffickers”. The allegations of this paragraph are specious,
inflammatory and wholly unrelated to the allegation that Defendants negligently sold the firearm
that is the subject of this litigation. Furthermore, given the fact that Defendants complied with all
relevant federal, state and local laws and regulations before the subject firearm was sold to Jerry
Battle, the Plaintiffs cannot argue that the Defendants did anything wrong in connection with the
sale of this particular firearm. It is an unfortunate truth that there are in fact many people
throughout this community and throughout the country who purposely violate federal and state
laws by unlawfully acquiring and selling firearms, but that fact has no more bearing on the facts
and issues in this lawsuit than do the well documented statistics of minors who tragically kill
themselves and others as a result of drunk driving each year.
Plaintiffs also provide meaningless statistics concerning “tracing”. See, e.g., Pltfs.’
Amended Complt. at ¶¶30, 31 32 and 35. In addition to the newspapers and reporting services
cited, the Plaintiffs also rely on a study by the Americans for Gun Safety Foundation. See Pltfs.’
Amen. Complt. at ¶35. This is not the sort of information that constitutes admissible evidence of
the propositions asserted by the authors of such study, particularly where the authors of such
study are clearly dedicated to establishing such propositions (as opposed to an article published
in a peer review journal or treatise where the authors methodologies and conclusions are
28
subjected to rigorous review and analysis by other experts in their field). Hyperbole and rhetoric
are not evidence, and they certainly do not satisfy the fact pleadings requirements in
Pennsylvania.
As further example of the irrelevant and impertinent allegations of the Amended
Complaint, in Paragraph 31, Plaintiffs state that “[a] 1999 Associated Press article reported that
111 guns sold by Lou’s Loan were traced to crime between January 1995 and December 1997,
an average of more than three a month. 86% of all dealers in Pennsylvania have never had one
gun traced to crime.” Pltfs.’ Amended Cmplt. at ¶31. This article published by the Associated
Press is neither material to the allegation of negligent sale of the subject firearm in December
2003, nor is an article published by the Associated Press appropriate proof of the “facts” alleged
therein.
The most glaring example of Plaintiffs’ inclusion of inflammatory and irrelevant
allegations is in Paragraph 37, stating: “...between September 29, 1990 and November 29, 1990,
Theresa J. Bush, acting as a straw purchaser for her boyfriend, Saad Abdul Salaam, purchased a
total of seven guns from Lou’s Loan: some within a two-day period and four in a single
transaction. See U.S. v. Theresa J. Bush, Crim. A. No. 94-185, reported Aug. 7, 1995, E.D. Pa.
and U.S. v. Theresa J. Bush, No. 94-2025, reported June 12, 1995, 3d Cir. Salaam was allegedly
supplying guns to a co-conspirator in the 1993 World Trade Center bombing”.
The allegations of this paragraph makes reference to sales dating back to 1990,
allegations that the guns were used by co-conspirators in the 1993 World Trade Center bombing,
and have absolutely nothing to do with the Plaintiffs’ allegations - - namely, that Lou’s
negligently sold the subject firearm in 2003, which was later used in the unfortunate shooting of
14 year-old Anthony Oliver, Jr. by 13-year old Quamere Durham.
29
The only purpose for the inclusion of these irrelevant allegations is to place the
Defendants in a derogatory light. As such, these paragraphs should be stricken under
Pennsylvania pleading practices. See Common Cause/Pennsylvania v. Commonwealth, supra,
710 A.2d at 115. Plaintiffs conveniently fail to state that Lou’s was never charged, let alone
convicted, of any crime or other impropriety for any of the alleged transgressions referred to in
the Amended Complaint.
In short, a court of law is simply the wrong forum for Plaintiffs to raise concerns of
alleged “gun trafficking” and “straw purchasers”, and the specific allegations contained in
the above referenced paragraphs of the Amended Complaint include nothing more than
scandalous and impertinent matters which in no way relate to the present matter before this
Honorable Court. Thus, they must be stricken from the Amended Complaint.
Lou’s of Upper Darby, Inc. respectfully requests that Paragraphs 27-40, 42 and 47-58
be stricken from the Amended Complaint for alleging scandalous, impertinent and immaterial
matters in a pleading.
VIII. DEMURRER TO COUNT IX (PUNITIVE DAMAGES) OF PLAINTIFFS’
AMENDED COMPLAINT PURSUANT TO PENNSYLVANIA RULES OF CIVIL
PROCEDURE 1028(a)(4) FOR LEGAL INSUFFICIENCY OF THE PLEADING.
Plaintiffs’ Counts IX avers that Defendants are liable to Plaintiffs for punitive damages.
The only allegations made in support of this contention is that Lou’s “willfully, wantonly and/or
recklessly failed to take reasonable precautions and failed to use reasonable sales practices with
respect to sales of handguns which supplied illegal handgun users and accordingly Plaintiffs are
entitled to an award of punitive damages”. See Pltfs.’ Amen. Complt. at ¶98.
30
Punitive damages may only be awarded for outrageous conduct, i.e., for acts done with
bad motive or with reckless indifference to the interests of others. Restatement (Second) of Torts
§908, et seq. To support a claim for punitive damages, the pleadings must include facts that, if
proven, would establish that Defendant’s conduct was “such a severe departure from prevailing
moral values in terms of the evilness of motive or recklessness of the disregard of the victim’s
right in interests, such an extravagant, shocking, anti-social and extremely offensive misdoing, as
provokes instantly a cry to abhorrence.” Commonwealth v. Kitchen Appliances Distributors,
Inc., 27 Pa. D. & C. 3rd 91, 99-101 (Somerset Co. 1981). Thus, there is a higher degree of
particularity in pleading that is essential to establish a punitive damages claim.
In order to establish a claim for punitive damages, Plaintiffs must set forth sufficient facts
demonstrating outrageous conduct by Defendants. Punitive damages may not be awarded as a
matter of law only for such misconduct that would constitute ordinary negligence (mere
inadvertence, mistake, or errors of judgment), or recklessness rising to the level of gross
negligence). See Ferrick Excavating v. Seneger Trucking Co., 484 A.2d 744 (Pa. 1984)
(Pennsylvania common law does not recognize degrees of negligence).
In Pennsylvania, the function of punitive damages is to deter and punish egregious
behavior. Martin v. Johns-Manville Corp., 494 A.2d 1088, 1096, (Pa. 1985). Neither mere
negligent nor even grossly negligent conduct provides sufficient culpability to justify the
imposition of punitive damages. Feld v. Merriam, 485 A.2d 742 (Pa. 1984); Takes v.
Metropolitan Edison Co., etc., 655 A.2d 138,146 (Pa. Super. 1995); SHV Coal v. Continental
Grain Co., 587 A.2d 702 (Pa. 1991).
The Plaintiffs’ pleading does not establish or set forth any “outrageous” conduct by
Defendants and fails to support any claim for punitive damages. Thus, the allegations of Count
31
IX of the Plaintiff’s Amended Complaint must be dismissed.
IX.
THE PLCAA PASSES ANY POTENTIAL CONSTITUTIONAL CHALLENGE
AND THE AMENDED COMPLAINT IN THIS MATTER MUST BE DISMISSED
Lou’s anticipates that the Plaintiffs will challenge the PLCAA on constitutional grounds
in an effort to avoid dismissal of their lawsuit9. Accordingly, based upon the stated intention of
Plaintiffs’ counsel to mount a constitutional challenge, Lou’s preemptively provide this
Honorable Court with the legal grounds for overruling any such constitutional challenges to the
PLCAA.
A.
Applicability of the PLCAA
This lawsuit is similar to dozens that were filed throughout the country asserting the same
types of bases for liability – namely, pubic nuisance and similar claims based on the criminal use
and misuse of firearms.10 In fact, Congress cited the burdens on interstate and foreign commerce
from “actions commenced by the Federal Government, States, municipalities, private interest
groups and others.” PLCAA §2(a)(7)-(8), (b)(4). In this case, “others” clearly encompasses the
9
In a press release dated October 18, 2005, Dennis Henigan, Director of the Brady Center's Legal Action Project
and co-counsel for Plaintiffs’ herein, issued this statement:
"The Congress can pass it. The President can sign it. But this shameful law will not stand. We will
challenge the constitutionality of this special interest extravaganza in every court where the rights of gun
violence victims are being threatened. This bill is an unprecedented attack on the due process rights of
victims injured by the misconduct of an industry that seeks to escape the legal rules that govern the rest of
us. We believe state and federal courts across this Nation are prepared to strike it down."
This October 18, 2005 Brady Center press release further specifically refers to the instant lawsuit with the following
statement:
“Brady Center lawyers have nine pending lawsuits against gun sellers and manufacturers, in which they
represent individual victims of gun violence, as well as urban municipalities. The cases are pending in the
states of Indiana, New York, Pennsylvania, Massachusetts, North Carolina and in the District of Columbia.
See, Brady Center Legal Action Project Press Release dated October 18, 2005 at
http://www.bradycampaign.org/press/release.php?release=696 (Emphasis supplied)
10
The following municipalities filed similar lawsuits, all of which were dismissed or withdrawn by Plaintiffs’
counsel (including co-Plaintiffs’ counsel in this case, the Brady Center to Prevent Gun Violence Legal Action
Project): New Orleans, LA, Bridgeport, CT, Miami-Dade County, FL, Camden County, NJ, Atlanta, GA, Boston,
MA, Wilmington, DE, Cincinnati, OH, Camden, NJ , Detroit/Wayne County, MI, the State of New York, Newark,
NJ, St. Louis, MO, Jersey City, NJ, Chicago, IL, Philadelphia, PA and 12 California municipalities.
32
Plaintiffs. Additionally, “private interest groups” would certainly appear to include the Brady
Center, co-Plaintiffs’ counsel in this matter, have joined in the filing of dozens of similar
baseless lawsuits against members of the firearms industry.
The legislative intent of the PLCAA, namely that manufacturers and sellers should not be
liable for the unlawful and criminal misuse of firearms by third parties, specifically applies here.
In this lawsuit, the Plaintiffs seek to hold Defendants Lou’s and Phoenix Arms liable for the
unlawful and criminal misuse of the subject Phoenix Arms pistol by the shooter, Quamere
Durham.
This lawsuit and others like it were the very impetus for the Act being enacted. See, e.g.,
151 Cong. Rec. S8910 (daily ed. July 26, 2005) (statement of Sen. Sessions). The similarity
between this lawsuit and the others that have been filed throughout the country is no
coincidence—particularly when one considers that the Plaintiffs’ co-counsel, the Brady Center to
Prevent Handgun Violence Legal Action Project, has been involved as counsel in most of such
lawsuits that provided much of the impetus for the enactment of the PLCAA.
B.
The PLCAA Is Constitutional And Cannot Be Challenged On Any
Constitutional Basis.
The Acts of Congress are entitled to a strong presumption of constitutionality. Any
challenge by the Plaintiffs in this case will fail and cannot overcome that presumption11. See,
11
In the only constitutional challenge to the PLCAA to date, which challenge was mounted, in part, with the
assistance of the Brady Center, the United States District Court for the Eastern District of New York found that the
PLCAA was clearly constitutional. See, Opinion dated December 2, 2005 issued by the Honorable Jack B.
Weinstein in City of New York v. Beretta, --- F.Supp.2d ----, 2005 WL 3244336 (E.D.N.Y.) (“There is no violation
of the United States Constitution”; id at p. 23. The Court in City of New York specifically held that:
The PLCAA did not violate the Commerce Clause;
The PLCAA was not unconstitutional ex post facto legislation;
The PLCAA did not direct the outcome of a pending case without changing the substantive law underlying the suit,
in violation of the separation of powers guaranteed by the Constitution;
The PLCAA did not amount to congressional “commandeering” of state governments in violation of the Tenth
Amendment; and
The PLCAA was supported by rational basis, as required by equal protection.
33
e.g., Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 83 (1978) (holding that
liability-limiting provisions of the Price-Anderson Act, as a “classic example of an economic
regulation,” “‘come to the Court with a presumption of constitutionality’”) (quoting Usery v.
Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976)).
1.
The Act Does Not Violate the Separation of Powers Doctrine
Set Forth in United States v. Klein.
In Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995), the U.S. Supreme Court outlined
the three types of legislation that violate separation of powers principles. First, citing United
States v Klein, 80 U.S. 128 (1871), the Court noted that it had “refused to give effect to a statute
that was said ‘[to] prescribe rules of decision’ to the Judicial Department of the government in
cases pending before it.” Plaut, 514 U.S. at 218. Second, citing Hayburn's Case, 2 Dall. 409
(1792), the Court noted that “Congress cannot vest review of the decisions of Article III courts in
officials of the Executive Branch.” Id. Finally, the Court outlined a new circumstance, finding
that Congress violates separation of powers principles when it “command[s] the federal court to
reopen final judgments.” Id. at 219; see also id. at 227 (“having achieved finality, however, a
judicial decision becomes the last word of the judicial department with regard to a particular case
or controversy, and Congress may not declare by retroactive legislation that the law applicable to
that very case was something other than what the courts said it was”) (emphasis in original).
Thus, under Klein and its limited prohibition on “rules of decision,” and the Act does not violate
the doctrine and principles of separation of powers.
However, despite the first constitutional challenge to the PLCAA having failed, Lou’s is setting forth the grounds
for this Court to adopt Judge Weinstein’s rationale on this point in anticipation of an argument that Plaintiffs’ may
advance that Judge Weinstein was wrong in his conclusion about the constitutionality of the PLCAA.
34
a.
The Act does not violate Klein because it reflects a
change in the existing law applicable to this case.
In passing the PLCAA, Congress expressed its view that actions like the case at bar are
not justified by existing common law standards. However, it also recognized the possibility that
such claims could be sustained by a court or jury. PLCAA §2(a)(7). Thus, to eliminate the
undue burden it saw on interstate and foreign commerce and to protect the vitality of an industry
that Congress viewed as important to the nation’s defense and to the preservation of individual
rights guaranteed under the Constitution, Congress created a prohibition on such lawsuits where
no such prohibition existed before. There could be no clearer change in the law.
Because the Act changes the law, there is no separation of powers issue under Klein.
“Whatever the precise scope of Klein, however, later decisions have made clear that its
prohibition does not take hold where Congress ‘amends applicable law.’” Plaut, 514 U.S. at 218;
see also Axel Johnson, Inc. v. Arthur Anderson & Co., 6 F.3d 78, 81 (2nd Cir. 1993) (“Klein does
not preclude Congress from changing the law applicable to pending cases.”); id. at 82 (finding
legislation constitutional because it “constitutes a change in the law applicable to a limited class
of cases”); City of Chicago, 423 F.3d at ___ (finding fact that 2005 appropriations rider changed
the law and “makes it unnecessary to address the City’s Klein challenge”).
b.
Even if the Act did not change the underlying law, it
still would not run afoul of Klein because it does not
impose a rule of decision.
Even if the PLCAA changed the underlying law, there would still be no basis for finding
that the Act violates the “rule of decision” holding in Klein. At issue in Klein was a statutory
requirement that individuals show loyalty to the Union in order to obtain the return of property
seized during the Civil War. Congress enacted a subsequent law that prohibited courts from
considering a post-war, presidential pardon as evidence of loyalty, but instead directed that such
35
a pardon be “taken and deemed . . . conclusive evidence” barring the claimant’s right to the
property. Klein, 80 U.S. at 144-47. Thus, rather than changing or clarifying the standard for
return of property, the law directed the courts how they must apply that standard in cases before
them. Not surprisingly, the U.S. Supreme Court found this effort to impose a “rule of decision”
on courts unconstitutional. Id. at 147.12
The contrast between Klein and the case at bar is seen in numerous subsequent decisions.
In Robertson, the Supreme Court reversed the Ninth Circuit’s holding that statutory amendments
implementing the Northwest Timber Compromise violated the rule of Klein. In subsection
(b)(6)(A) of the amendment, Congress stated that management of lands in compliance with
certain subsections was deemed to meet the statutory requirements set out in other subsections.
Robertson, 503 U.S. at 437-38. The Ninth Circuit found that Klein prohibited Congress from
directing a particular result in a case “without repealing or amending the law underlying the
litigation.” Id. at 436. The Supreme Court, however, found that the new law “compelled
changes in law, not findings or results under old law” because the standard for compliance with
the timber harvesting restrictions changed. Id. at 438. The Court also found “nothing in
subsection (b)(6)(A) that purported to direct any particular findings of fact or applications of law,
old or new, to fact.” Id. Thus, because the amendment established a new standard for resolving
ongoing litigation “without directing particular applications under either the old or the new
standards,” the Court held it did not violate the Klein separation of powers rule. Id. at 437.
The same is plainly applicable here. The PLCAA does not direct any specific factual
findings, but establishes new standards that federal and state courts must apply in determining
12
Thus, the Klein prohibition on “rules of decision” applies to legislative acts that dictate evidentiary rulings of fact
for the courts and thereby improperly take away the traditional fact finding function of the courts. See, e.g., San
Carlos Apache Tribe v. Superior Court of Maricopa County, 472 P.2d 178 (Ariz. 1999) (act dictating that the court
could consider only certain facts and, from them, must conclude that water rights were de minimus).
36
whether Plaintiffs have stated claims that may proceed against manufacturers and sellers in the
firearms industry. The Act does not require this Court or any other court to make a factual
finding that a public nuisance does not exist, or that these Defendants have not contributed to a
public nuisance in Philadelphia or Pennsylvania, which the Plaintiffs will likely argue in light of
their Amended Complaint and pleading. The Act does not require that courts find that
“traditional common law” prohibits a particular case. Instead, the Act identifies particular types
of claims that are not permissible against manufacturers and sellers and leaves it to the courts to
apply those standards to the cases before them. Even if that classification did not change the
law, which it obviously does, it would not violate the “rules of decision” holding of Klein. The
courts must still perform the judicial function of determining whether particular cases in front of
them come within the terms of the Act, just as this Court will decide on these objections. The
fact that the Act prohibits claims found to be within its terms and requires their immediate
dismissal does not establish a rule of decision.
Numerous subsequent decisions reflect the narrow reach of Klein. In rejecting a “rules of
decision” challenge to Section 27A(a) of the Securities and Exchange Act adopting a new rule
for statutes of limitations, the Second Circuit stated:
Unlike the provision at issue in Klein, and like the statute at issue
in Robertson, § 27A(a) does not directly interfere with judicial fact
finding. For example the statute does not control courts’
determinations with respect to whether particular cases satisfy the
requisites set forth in § 27A(a) for avoiding application of the rule
in Lampf. Section 27A(a) leaves to the courts the task of
determining whether a claim falls within the ambit of the statute.
Axel Johnson, 6 F.3d at 80-81; see also City of New York v.
Beretta U.S.A. Corp., 222 F.R.D. 51 n.11 (E.D.N.Y. 2004) (“Klein
is inapplicable here because the 2004 Act does not mandate
particular findings in any of these pending actions.”).
37
Further, in a number of cases, the courts addressed the constitutionality of a provision of
the Prison Litigation Reform Act that required “immediate termination of prospective relief.”
See 18 U.S.C. § 3626(b)(2). In Nichols v. Hopper, for example, the court stated:
Here, Congress has enacted new standards, but has left to the
courts the judicial functions of applying those standards. . . . If the
court finds that the consent order in question has been narrowly
drafted, extends no further than necessary, and is the least intrusive
means necessary to correct the violation, then the order will not
terminate. Section 3626(b)(2) of the PLRA thus ‘provides only the
standard to which district courts must adhere, not the result they
must reach,’ [citation omitted], and does not violate the separation
of powers principles set out in Klein.
Nichols v. Hopper, 173 F.3d 820, 823 (11th Cir. 1999). Likewise,
the Fifth Circuit recognized that there was no violation of Klein
when Congress adopted new standards to be applied by the courts:
By enacting the termination provisions of the PLRA, Congress has
properly invoked its legislative authority to establish applicable
standards and procedural rules for courts to grant or continue
prospective relief regarding prison conditions. Section 3626(b) is
like any other statute in that it establishes a generally applicable
legal rule and allows district courts to apply that rule to the facts of
specific cases.
Ruiz v. United States, 243 F.3d 941, 949 (5th Cir. 2001).
Simply stated, the PLCAA does not interfere with the judicial function of taking the
standard established by the Act and applying it to existing cases, including the present one.
Thus, it does not violate separation of powers principles.
38
C.
The PLCAA Does Not Violate the Due Process and Equal Protection
Clauses.
Any due process challenge fails on the merits.
A procedural due process challenge fails because the PLCAA
changed the law.
Any challenge to the PLCAA pursuant to the Due Process Clause of the Fifth
Amendment will fail.13 Any such challenge will have to be based on the faulty premise that the
Act is a procedural measure which does not change the substantive law. This will have to be the
tact taken by the Plaintiffs because if they admit that the Act effected a change in the substantive
law, a procedural due process claim will fail because, under those circumstances, the legislative
determination provides all the process that is due.
Prior to the passage of the PLCAA, there was no statutory bar to bringing public nuisance
claims against gun manufacturers and sellers of firearms based on the criminal misuse of their
products by others. Municipalities and Plaintiffs across the country filed such suits with varying
degrees of success: many were dismissed at the pleadings stage; others proceeded to discovery;
none was successfully pursued to final judgment. In passing the PLCAA, Congress made the
legislative judgment that such lawsuits constituted an unreasonable burden on interstate
commerce and threatened the viability of an industry vital to the country’s national security and
defense and should be stopped. PLCAA changed the law by prohibiting the filing or
maintenance of these and similar suits against manufacturers and sellers based on the criminal
misuse of firearms, except under the limited circumstances set forth in PLCAA § 4(5)(A)(i) –
(v).
13
The Fifth Amendment provides, in pertinent part: “nor shall any person be subject for the same offence to be
twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor
be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public
use, without just compensation.” U.S. Const., amend. V. Equal protection of the laws is preserved against federal
action through the Due Process Clause of the Fifth Amendment. See, e.g., Adarand Constructors, Inc. v. Pena, 515
U.S. 200, 217 (1995); Harris v. McCrae, 448 U.S. 297, 322 (1980).
39
This is precisely the type of legislative change that the Supreme Court held would
invalidate a procedural due process challenge. Logan v. Zimmerman Brush Co., 455 U.S. 422,
432-33 (1982) (noting that a legislature remains “free to create substantive defenses or
immunities for use in adjudication – or to eliminate its statutorily created causes of action
altogether – just as it can amend or terminate its welfare or employment programs”; while such
actions might deprive a plaintiff of a protected property interest, it is not a deprivation “without
due process” because, in each case, “the legislative determination provides all the process that it
due”). See also Lyon v. August S.p.A., 252 F.3d 1078, (9th Cir. 2001) (statute of repose in
General Aviation Revitalization Act barring product liability action against aircraft manufacturer
based on date of delivery of aircraft did not violate Plaintiffs’ procedural due process rights, even
though Act was enacted after accident for which Plaintiffs were suing, because it was the product
of a rational legislative judgment).
Any substantive due process challenge fails because the
Plaintiffs do not have a vested right to pursue their public
nuisance claim, and due process does not require a substitute
remedy or quid pro quo for statutes abolishing state law tort
claims.
The Plaintiffs will likely argue that, if the PLCAA effects a change in the substantive
law, then it violates the Plaintiffs’ rights to substantive due process by wholly depriving the
Plaintiffs of its common law tort remedies without providing a reasonably just substitute. This
argument fails for several reasons.
The Act does not deprive the Plaintiffs of all remedies.
The PLCAA does not deprive the Plaintiffs or any victims of gun violence of any right to
a remedy for injuries if the unlawful misuse of a firearm contributes to an injury. Any such
exaggerated characterization of the Act should be disregarded. Under the PLCAA, the Plaintiffs
and victims of gun violence may still sue the gun traffickers and criminals directly responsible
40
for their injuries—in this case, Quamere Durham and, as the Plaintiffs’ allege, the purchaser of
the subject firearm. See Pltfs.’ Amen. Cmplt. at ¶19 (alleging that Jerry Battle is either a
“criminal and/or illegal handgun trafficker[]”). They also remain free to sue manufacturers and
sellers who knowingly violate federal, state, or local firearms laws, aid and abet others in
violating those laws, or engage in negligence per se. (This exception does not apply to this case
either as discussed below at Sections VI and VII, infra). These civil remedies are in addition to
the panoply of remedies at the disposal of law enforcement authorities under the criminal code
against violators of firearms laws. Far from stripping Plaintiffs “of any right to redress” for gun
violence, the Act bars a narrow range of claims against manufacturers and sellers of firearms,
leaving a number of remedies available against both manufacturers and sellers as well as those
parties directly responsible for Plaintiffs’ injuries.
Plaintiffs do not have a vested right to pursue their
public nuisance claim.
While the Act does preclude the Plaintiffs from suing the Defendants in public nuisance
for harm caused by the criminal misuse of firearms, the Plaintiffs have no vested right in that tort
claim absent a final, unappealable judgment. In the absence of a vested right, the application of
the newly enacted PLCAA to bar the Plaintiffs’ pending suit does not offend due process.
It is well established that legal claims do not give rise to vested rights until successfully
pursued to a final, unappealable judgment. Hammond v. United States, 786 F.2d 8, 12 (1st Cir.
1986). “No person has a vested interest in any rule of law entitling him to insist that it shall
remain unchanged for his benefit.” New York Central Railroad Co. v. White, 243 U.S. 188,
(1917). “‘A person has no property, no vested interest, in any rule of the common law.’” Duke
Power Co. v. Caroline Environmental Study Group, Inc., 438 U.S. 59, 88 n.32 (1978) (quoting
Second Employers’ Liability Cases, 223 U.S. 1, 50 (1912)). See also Cansius College v. United
41
States, 799 F.2d 18, 25-26 (2nd Cir. 1986) (federal statute that retroactively validated previously
unlawful FICA taxes did not deprive plaintiff college of vested right to refund of FICA taxes
where plaintiff had filed suit for refund but had no final judgment establishing such a right); Axel
Johnson Inc. v. Arthur Andersen & Co., 6 F.3d 78, 83-84 (2nd Cir. 1993) (judgment that gives
rise to vested right protected by Fifth Amendment and separation of powers doctrine is final,
unappealable judgment: “a case remains ‘pending,’ and open to legislative alteration, so long as
an appeal is pending or the time for filing an appeal has yet to lapse”).14
Courts across the country have rejected similar arguments that statutes modifying or
abrogating pending tort claims violate due process by depriving litigants of their right to proceed.
In Sowell v. American Cyanamid Co., 888 F.2d 802 (11th Cir. 1989), for example, a federal
employee who was injured at work sued a co-worker for negligence and received a jury verdict
in his favor. While the case was on appeal, Congress passed the Federal Employees Liability
Reform and Tort Compensation Act (“FELRTCA” or the “Westfall Act”) which prohibited tort
claims against individual federal employees acting within the scope of their employment and
provided an exclusive remedy against the United States. The court rejected the plaintiff’s
argument that retroactive application of FELRTCA to his claim was unconstitutional, even
though it resulted in setting aside the plaintiff’s judgment against his co-worker: “The fact that
14
The rule that rights in legal claims do not vest until there is final, unappealable judgment is a corollary to the
principle that a “court should apply the law in effect at the time it renders its decision, even though the law was
enacted after the events that gave rise to the suit,” Landsgraf v. USI Film Products, 511 U.S. 244, 273 (1994)
(citation omitted) – a principle applied by the Supreme Court over two hundred years ago in the case of United
States v. Schooner Peggy, 5 U.S. 103 (1801). In Schooner Peggy, Chief Justice Marshall, writing for a unanimous
Court, reversed a judgment condemning a French vessel seized on American waters because an intervening treaty,
first enacted while the case was on appeal, provided for the restoration of captured property “not yet definitely
condemned.” Id. at 107. “[T]he court must decide according to existing laws, and if it be necessary to set aside a
judgment, rightful when rendered, but which cannot be affirmed but in violation of the law, the judgment must be
set aside.” Id. at 110. See also 149 Madison Avenue Corp. v. Asselta, 331 U.S. 795 (1947), modifying 331 U.S.
199 (1947) (after affirming judgment for overtime pay due Plaintiffs under Fair Labor Standards Act, remanding
case, on timely motion for rehearing, for consideration of effect of newly enacted Portal-to-Portal Act which gave
employers good-faith defenses to back overtime pay suits under Fair Labor Standards Act).
42
the statute is retroactive does not make it unconstitutional as a legal claim affords no definite or
enforceable property right until reduced to final judgment.” Id. at 805 (citations omitted).15
Courts have upheld the constitutionality of similar tort reform statutes, even when the
result was to leave the particular plaintiff without a remedy. In Hammond v. United States, 786
F.2d 8 (1st Cir. 1986), a widow brought suit against a government contractor for wrongful death
and loss of consortium resulting from her husband’s death from radiation exposure. While the
action was pending, Congress passed a statute requiring that the United States be substituted as a
Defendant in all suits against government contractors for injuries arising out of atomic weapons
testing programs and making the Federal Tort Claims Act (“FTCA”) the sole remedy for such
injuries. As a result of the intervening statute, the United States was substituted for the
Defendant contractor and then successfully moved to dismiss the case because the plaintiff had
failed to file an administrative claim under the FTCA. On appeal, the court rejected the
plaintiff’s due process challenge to the statute:
Because rights in tort do not vest until there is a final,
unreviewable decision, Congress abridged no vested rights of the
plaintiff by enacting § 2212 and retroactively abolishing her cause
of action.
****
Plaintiff claims § 2212 must be specially scrutinized because she
has been denied her fundamental right of access to the courts. But
this case does not involve someone burdening or blocking
plaintiff’s right of access to the courts to seek enforcement of the
law as in the cases plaintiff cites. This is a matter of Congress
altering her prior rights and remedies. There is no fundamental
right to particular state-law tort claims.
15
Other courts have reached the same result. See, e.g., Salmon v. Schwarz, 948 F.2d 1131, 1142-44 (10th Cir.
1991) (using same rationale to uphold application of FELRTCA to pending tort claim against due process
challenge); Arbour v. Jenkins, 903 F.2d 416, 420 (6th Cir. 1990) (same); Connell v. United States, 737 F. Supp. 61,
63 (S.D. Iowa 1990) (same); Kitchen v. United States, 741 F. Supp. 182, 185 (D. Alaska 1989) (law retroactively
restricting medical malpractice plaintiff’s claim against government health service to suit against United States
under Federal Tort Claims Act did not violate due process because “rights in tort do not vest until there is a final,
unreviewable judgment”).
43
Id. at 12, 13 (internal citations omitted).
Similarly, in In re TMI, 89 F.3d 1106 (3rd Cir. 1996), Plaintiffs sued for injuries resulting
from the Three Mile Island nuclear accident. Because Pennsylvania’s two-year statute of
limitations had run, they filed suit in Mississippi, which had a six-year limitations period. While
the suit was pending, Congress passed the Price-Anderson Amendment requiring application of
Pennsylvania’s statute of limitations to all actions arising from the Three Mile Island accident,
thus barring Plaintiffs’ claims. The court rejected the Plaintiffs’ due process challenge to the
statute: “[L]egislation affecting a pending tort claim is not subject to ‘heightened scrutiny’ due
process review because a pending tort claim does not constitute a vested right.” Id. at 1113. The
court held that the statute easily passed muster under the “rational basis” standard of review. Id.
at 1113-15. See also Lyon v. August S.p.A., 252 F.3d 1078, (9th Cir. 2001) (application of
statute of repose in General Aviation Revitalization Act barring product liability action against
aircraft manufacturer based on date of delivery of aircraft did not violate due process, even
though Act was enacted after accident for which Plaintiffs were suing).
While the Plaintiffs have not specifically pleaded it, their public nuisance claim
necessarily suggests that they are seeking either injunctive relief or some order requiring
abatement into the future. The Plaintiffs thus lack a vested right to pursue their tort claim for the
additional reason that such injunctive relief operates in futuro. Application of a statute that
affects the propriety of injunctive relief is not retroactive and does not deprive litigants of any
vested right:
Even absent specific legislative authorization, application of new
statutes passed after the events in suit is unquestionably proper in
many situations. When the intervening statute authorizes or affects
the propriety of prospective relief, application of the new provision
is not retroactive. Thus, in American Steel Foundries v. Tri-City
Central Trades Council, 257 U.S. 184 (1921), we held that § 20 of
the Clayton Act, enacted while the case was pending on appeal,
44
governed the propriety of injunctive relief against labor picketing.
In remanding the suit for application of the intervening statute, we
observed that 'relief by injunction operates in futuro,' and that the
plaintiff had no 'vested right' in the decree entered by the trial
court.
Landsgraf v. USI Film Products, 511 U.S. 244, 273-74 (1994).
See also City of Chicago v. United States Dept. of Treas., Bureau
of Alcohol, Tobacco and Firearms, 423 F.3d 777, 783 (7th Cir.
2005) (even though 2005 Appropriations Act, barring disclosure of
ATF data, was enacted while FOIA suit was on appeal, and
Congress did not specifically authorize its application to pending
cases, court would apply it to deny plaintiff's claim for an order
compelling ATF to turn over data – “relief that operates in futuro,
rather than retrospectively”); Benjamin v. Jacobson, 172 F.3d 144,
164 (2nd Cir. 1999) (application of Prison Litigation Reform Act to
modify or terminate injunctive portions of consent decrees
previously entered by parties did not violate due process by
depriving parties of vested contractual rights: “[T]he provisions of
a consent decree that order prospective relief remain subject to
modification or alternation for changes in law or circumstances.
Such a right as a litigant may have to prospective relief is thus
neither final nor ‘vested’ in the constitutional sense.”). If a party
has no vested right in a judgment granting injunctive relief, then, a
fortiori, the Plaintiffs have no vested right in a claim for injunctive
relief that has not even progressed to judgment.
Due process does not require a substitute remedy or
quid pro quo for statutes abolishing state law tort
claims.
The Plaintiffs may also argue that the PLCAA is fundamentally different from other tort
reform statutes enacted by Congress because it completely abolishes their cause of action
without providing any alternative Defendant or substitute remedy. This argument must fail as a
substitute remedy is not required by due process when a statute eliminates a state law cause of
action.
In another case involving similar issues regarding the PLCAA, the cases of Poindexter v.
Greenhow, 114 U.S. 270 (1885), and Truax v. Corrigan, 257 U.S. 312 (1921) were cited for the
proposition that statutes completely eliminating common law causes of action violate due
45
process. Attempts were made to compare the PLCAA to the statutes struck down in those cases.
However, neither case supports the proposition for which they are cited.
Poindexter did not even involve a due process challenge. The question in that case was
whether two Virginia statutes, enacted in 1882 and 1879, violated Article 1, § 10 of the United
States Constitution by impairing the obligation of contracts. 114 U.S. at 274-75. The contract
alleged to have been impaired was set forth in a 1871 Virginia law, the “Funding Act,” which
provided that bonds and coupons issued by Virginia to finance its debts would, on maturity, be
accepted as payment for taxes due the state. Id. at 277-79. The 1882 and 1879 statutes that
allegedly impaired the contract created by the Funding Act provided that state tax collectors
would not accept coupons in payment of taxes, authorized the collection of delinquent taxes by
distraint of personal property, and created an exclusive remedy for taxpayers who claimed to
have been wronged by the actions of state tax collectors in collecting taxes, that remedy being to
pay the tax under protest and then sue the collector for return of the money improperly collected;
other common law remedies were barred. Id. at 275-76. The plaintiff, a taxpayer whose tender
of coupons to pay his taxes was rejected by the state tax collector in violation of the 1871
Funding Act and whose personal property was thereafter seized by the tax collector in distraint,
did not follow the exclusive remedy set forth in the 1882 statute but instead brought a common
law action in detinue against the tax collector for return of his property. Id. at 273-74.
The Supreme Court held that the 1882 and 1879 statutes unconstitutionally impaired the
contract created by the 1871 Funding Act, and that the exclusive remedy provided under the
1882 statute (paying the tax under protest and suing the collector to recover the money so paid)
did not cure the constitutional defect. Id. at 300-01. The Court held that the exclusive remedy
portion of the 1882 statute could not be severed from the portion of the statute forbidding tax
46
collectors from accepting coupons in payment of taxes and thereby saved, because that remedy
effectively deprived the taxpayer of the right secured to him by contract under the 1871 Funding
Act, a contract right Virginia could not constitutionally impair. Id. at 302-03. Although the
Court mentioned due process in passing, it did so as an example to explain why the 1882 statute
could not be used to deprive the taxpayer of the remedies necessary to protect his contract right.
Id. at 303-04.
Here, the Plaintiffs do does not have a contract right protected from impairment by the
Constitution. They have a common law tort claim that has not vested. Poindexter does not
speak to the issue of whether the legislature can modify or eliminate common law tort claims in
the absence of a vested contract right, much less whether due process requires a substitute
remedy.
The case of Truax v. Corrigan, 257 U.S. 312 (1921) supports this analysis. There,
business owners sued to enjoin their employees from engaging in a strike that included libelous
and abusive attacks on the employer, attacks on employees and customers, threats of attacks on
prospective customers, and other tortious activity. Id. at 321, 330. At issue was a state statute
that barred state courts from issuing injunctions in any case between employers and employees
involving or growing out of a dispute over terms or conditions of employment. Id. at 322. The
Supreme Court, over three strong dissents by Justices Holmes, Pitney, and Brandeis, held that, to
the extent the statute could be construed (as the Arizona Supreme Court had construed it) as
granting complete immunity from any civil or criminal action to Defendant employees and
declaring their conduct lawful, it violated due process. Id. at 328. If the statute were construed
as “not withhold[ing] from the Plaintiffs all remedy for the wrongs they suffered, but only the
47
equitable relief of injunction,” it nonetheless violated the Equal Protection Clause of the
Fourteenth Amendment. Id. at 330, 331-39.
Truax has been described as a case involving equal protection, not due process, probably
because the broad construction given the statute by the Arizona Supreme Court was untenable,
and the principal analysis was devoted to equal protection. See International Brotherhood of
Teamster, Local 695 v. Vogt, Inc., 354 U.S. 284, 287-88 (1957). Moreover, “[t]he
considerations that underlay that case soon had to yield, through legislation and later through
litigation, to the persuasiveness of undermining facts.” Id. at 288-93 (tracing subsequent history
of use of injunctions in labor disputes). While Truax was a product of an “attitude which
regarded any legislative encroachment upon the existing economic order as infected with
unconstitutionality,” the tide later shifted in the direction of an increased deference by the courts
to legislative judgment. American Federation of Labor v. American Sash & Door Co., 335 U.S.
538, 543-44 (1949) (Frankfurter, J., concurring). In upholding a state statute prohibiting
injunctions against peaceful picketing by employees, Justice Brandeis, writing for the majority
this time, stated: “Whether it was wise for the state to permit unions to do so is a question of its
public policy – not our concern. The Fourteenth Amendment does not prohibit it.” Senn v. Tile
Layers Protection Union, Local, 301 U.S. 468, 481 (1937). The deference to legislative
judgment in the area of economic regulation remains a hallmark of Supreme Court jurisprudence
today.
Even accepting Truax on its terms, it is not relevant to this case. The PLCAA does not
grant “complete immunity from any civil or criminal action” to firearm manufacturers and sellers
or “withhold from the Plaintiffs all remedy for the wrongs they suffered” – the qualities that
caused the majority in Truax to find the Arizona statute violative of due process. The PLCAA
48
simply bars Plaintiffs from suing manufacturers and sellers who comply with the myriad of laws
governing the sale and marketing of firearms for harm caused by third parties’ criminal and
unlawful misuse of their products. Manufacturers and sellers remain subject to civil lawsuits for
knowing violations of laws regulating the manner in which they sell and market firearms,
negligence per se, breach of contract and warranty, and the sale of defective products. They
remain subject to prosecution under the criminal code if they violate those laws. Plaintiffs have
these remedies, as well as criminal and civil remedies against the gun traffickers and criminals
who directly cause the harm, to remedy any wrongs they suffer. In short, the Act does not
remotely resemble the Arizona statute in Truax as construed by the Arizona Supreme Court.
In similar cases, New York Central R.R. v. White, 243 U.S. 188 (1917), and Duke Power
Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59 (1978), which have often been
cited for the proposition that where the Supreme Court has upheld the elimination of a common
law remedy, it has done so by simultaneously creating a reasonably just substitute system of
compensation. Any citation to these cases should be disregarded.
In White, the Court did not reach the issue of whether a legislature could abolish all
common law remedies or defenses between employers and employees without providing a
reasonable substitute and expressly stated that it “intimate[d] no opinion upon” the subject:
Nor is it necessary, for the purposes of the present case, to say that
a state might, without violence to the constitutional guaranty of
‘due process of law,’ suddenly set aside all common-law rules
respecting liability as between an employer and employee without
providing a reasonably just substitute. . . . [I]t perhaps may be
doubted whether the state could abolish all rights of action, on the
one hand, or all defenses, on the other, without setting up
something adequate in their stead. No such question is here
presented, and we intimate no opinion upon it.
White, 243 U.S. at 201 (emphasis added).
49
In Duke Power Co., the Court went one step further. Not only did the Court find it
unnecessary to resolve the issue, it expressed strong skepticism that any such constitutional
requirement exists: “[I]t is not at all clear that the Due Process Clause in fact requires that a
legislatively enacted compensation scheme either duplicate the recovery at common law or
provide a reasonable substitute remedy.” Duke Power Co., 438 U.S. at 93. In a footnote, the
Court expanded on this statement:
Our cases have clearly established that “[a] person has no property,
no vested interest, in any rule of the common law.” Second
Employers’ Liability Cases, 223 U.S. 1, 50, 32 S.Ct. 169, 175, 56
L.Ed. 327 (1912), quoting Munn v. Illinois, 94 U.S. 113, 134, 24
L.Ed. 77 (1877). The “Constitution does not forbid the creation of
new rights, or the abolition of old ones recognized by the common
law, to attain a permissible legislative object,” Silver v. Silver, 280
U.S. 117, 122, 50 S. Ct. 57, 58, 74 L.Ed. 221 (1929), despite the
fact that “otherwise settled expectations” may be upset thereby.
Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16, 96 S.Ct.
2882, 2892, 49 L.Ed.2d 752 (1976). See also Arizona Employers’
Liability Cases, 250 U.S. 400, 419-422, 39 S.Ct. 553, 555-556, 63
L.Ed 1058 (1919). Indeed, statutes limiting liability are relatively
commonplace and have consistently been enforced by the courts.
See, e.g., Silver v. Silver, supra (automobile guest statute);
Providence & New York S.S. Co. v. Hill Mfg. Co., 109 U.S. 578, 3
S.Ct. 379, 27 L.Ed. 1038 (1883) (limitation of vessel owner's
liability); Indemnity Ins. Co. of North America v. Pan American
Airways, 58 F.Supp. 338 (SDNY 1944) (Warsaw Convention
limitation on recovery for injuries suffered during international air
travel). Cf. Thomason v. Sanchez, 539 F.2d 955 (C.A.3 1976)
(Federal Driver's Act).
Id. at 93 n.32. Thus, far from supporting an argument that statutes
eliminating common law causes of action only pass muster under
due process if they provide a substitute remedy in their stead, Duke
Power Co. casts doubt on that very proposition.
The lower courts have expressed similar skepticism. In upholding the Swine Flu Act
against a due process challenge, the Fifth Circuit noted that “[l]egislation has even been upheld
where no remedy was substituted in place of the cause of action that was taken away.”
Ducharme v. Merrill-National Laboratories, 574 F.2d 1307, 1310 (5th Cir. 1978), citing Carr v.
50
United States, 422 F.2d 1007 (4th Cir. 1970) (upholding constitutionality of Federal Drivers Act
which abrogated federal employee’s cause of action against fellow employees), Silver v. Silver,
280 U.S. 117 (1929) (upholding constitutionality of state statute that abolished guest passenger’s
action against host driver for negligence), and Brady v. Roosevelt Steamship Co., 317 U.S. 575,
580 (1943) (recognizing congressional power to grant immunity from tort liability to private
operators of government vessels). See also Montgomery v. Daniels, 340 N.E.2d 444, 453-54
(N.Y. 1975) (in upholding constitutionality of New York no-fault automobile accident
compensation law, expressing skepticism that due process requires quid pro quo, but finding it
unnecessary to reach issue; “Many States have abolished common-law causes of action by
statute without providing any substitute remedy at all, e.g., the common-law right of a guest in an
automobile to recover for the negligence of his host, or the common-law right of a party to sue in
tort or contract for breach of promise to marry or for alienation of affections.”) (Citations
omitted).16
Moreover, as previously noted, the PLCAA does not abolish all causes of action against
firearms manufacturers and sellers or leave victims of gun violence without a remedy. It is only
those lawsuits that seek to blame manufacturers and sellers for third-parties’ criminal misuse of
their products, or to regulate firearms distribution from the bench – claims that are of
16
Several recently-enacted federal tort reform statutes do not provide any offsetting benefits for the common law
causes of action they abrogate, at least to the parties directly harmed by the loss of those claims. See, e.g., General
Aviation Act, Pub. L. No. 103-298, 108 Stat. 1552-54 (18-year statute of repose for claims against aircraft
manufacturers); Food Donation Act, 42 U.S.C. § 1791 (limiting liability for donors of food); Y2K Act, 15 U.S.C. §§
6601-17 (capping damages against small businesses in Y2K actions). Nevertheless, these statutes provide benefits
that extend to society as a whole. Here, the benefits of protecting innocent manufacturers and sellers of firearms
from frivolous lawsuits and preserving the viability of an industry that arms the nation’s military and law
enforcement personnel is more than adequate to justify the PLCAA. See Fein v. Permanente Medical Group, 695
P.2d 665 (Cal. 1985) (upholding constitutionality of state’s medical malpractice reforms; “even if due process
principles required some ‘quid pro quo’ to support the statute, it would be difficult to say that the preservation of a
viable medical malpractice insurance industry in this state was not an adequate benefit for the detriment the
legislation imposes on malpractice Plaintiffs”).
51
questionable merit in any event17 – that are barred by PLCAA. In short, the Plaintiffs have not
been stripped of a vested right without an adequate substitute remedy and thus the Act does not
offend principles of due process.
Any equal protection challenge must also fail on the merits.
Because the Act does not deprive the Plaintiffs of a
fundamental right or classify along suspect lines, it is subject to
rational basis review.
The PLCAA is subject to rational basis review and not strict scrutiny because it does not
burden a fundamental First Amendment right to petition the courts. There is no fundamental
right to pursue state law tort claims. See, e.g., Hammond v. United States, 786 F.2d 8, 13 (1st
Cir. 1986); Gronne v. Abrams, 793 F.2d 74, 78 (2nd Cir. 1986). “The Constitution does not
forbid the creation of new rights, or the abolition of old ones recognized by the common law, to
attain a permissible legislative purpose.” Silver v. Silver, 280 U.S. 117, 122 (1929). Where, as
here, the Act neither burdens a fundamental right nor classifies along suspect lines like race or
religion, it is subject to rational basis review.18 Burlington Northern Railroad Co. v. Ford, 504
U.S. 648, 651 (1992).
Under this standard, the Act is entitled to “a strong presumption of validity,” Heller v.
Doe, 509 U.S. 312, 319 (1993), and the Plaintiffs would bear the burden of showing “that the
legislature has acted in an arbitrary and irrational way.” Usery v. Turner Elkhorn Mining Co.,
428 U.S. 1, 15 (1976). The Supreme Court in Heller succinctly summarized the framework:
17
Defendants note that while the PLCAA creates an exception for claims of negligence per se, the Plaintiffs’ claims
in that regard are legally insufficient and should be dismissed. Defendants refer this Honorable Court to Sections VI
and VII, infra.
18
Other courts addressing legislation that abolished or substantially affected a plaintiff’s pending tort claims have
reviewed it under the rational basis standard. See, e.g., In re TMI, 89 F.3d 1106, 1113 (3rd Cir. 1996); In re
Consolidated U.S. Atmosphere, 820 F.2d 982, 990-91 (9th Cir. 1987); Hammond, 786 F.2d at 13-14; Connell v.
United States, 737 F. Supp. 61, 63 (S.D. Iowa 1990). Cf. Duke Power Co. v. Carolina Environmental Study Group,
438 U.S. 59, 93 (1978) (reviewing liability-limitation provision of Price-Anderson Act under rational basis
standard).
52
[R]ational-basis review in equal protection analysis is not a license
for courts to judge the wisdom, fairness, or logic of legislative
choices. Nor does it authorize the judiciary to sit as a
superlegislature to judge the wisdom or desirability of legislative
policy determinations made in areas that neither affect fundamental
rights nor proceed along suspect lines. For these reasons, a
classification neither involving fundamental rights nor proceeding
along suspect lines is accorded a strong presumption of validity.
Such a classification cannot run afoul of the Equal Protection
Clause if there is a rational relationship between the disparity of
treatment and some legitimate governmental purpose. Further, a
legislature that creates these categories need not actually articulate
at any time the purpose or rationale supporting its classification.
Instead, a classification must be upheld against equal protection
challenge if there is any reasonably conceivable state of facts that
could provide a rational basis for the classification.
A State, moreover, has no obligation to produce evidence to
sustain the rationality of a statutory classification. A legislative
choice is not subject to courtroom fact-finding and may be based
on rational speculation unsupported by the evidence or empirical
data. A statute is presumed constitutional . . . and the burden is on
the one attacking the legislative judgment to negative every
conceivable basis which might support it, whether or not the basis
has a foundation in the record. Finally, courts are compelled under
rational-basis review to accept a legislature's generalizations even
when there is an imperfect fit between means and ends. A
classification does not fail rational-basis review because it is not
made with mathematical nicety or because in practice it results in
some inequality. The problems of government are practical ones
and may justify, if they do not require, rough accommodations –
illogical, it may be, and unscientific.
Heller, 509 U.S. at 319-21 (internal citations and quotation marks
omitted). Pursuant to the foregoing framework and analysis, it is
clear that the Plaintiffs will not be able to meet the burden of proof.
53
The Act’s protection of firearm manufacturers and sellers
from abusive lawsuits is rationally related to the legitimate
goal of eliminating burdens to interstate commerce and
ensuring the viability of an industry vital to the country’s
security and national defense.
As the Act’s legislative findings make clear, Congress enacted the PLCAA to eliminate
the unreasonable burden to interstate commerce posed by certain lawsuits against firearm
manufacturers and sellers and to ensure the continued viability of an industry that arms the
country’s military and police, while at the same time preserving legitimate tort claims by victims
of defectively made firearms and unlawful gun sales. See PLCAA, §2(a)(6) & (8). Eliminating
burdens to interstate commerce and preserving an industry vital to the country's national security
are legitimate legislative purposes, and barring pending and future “qualified civil liability
actions” is a rational means of furthering those goals. “Qualified civil liability actions” impose
unreasonable burdens on lawful interstate commerce in firearms, and threaten the continued
viability of the firearms industry, by imposing crippling litigation costs on the Defendants and by
attempting to regulate, through court-ordered money damages and injunctive relief, the way
manufacturers, distributors, and retailers design, market, and sell their products in interstate
commerce. Prohibiting such lawsuits is a logical means of eliminating those burdens and threats.
The parsing out of protection to the firearm industry from liability for third-party criminal
acts over which they have no control, while leaving open to such actions other industries is also
proper. This classification is rational, since manufacturers of other products have generally not
been sued for harm caused by the criminal misuse of their products. The lethal nature of
firearms, together with the sharply divided political debate over gun control in this country, have
made gun manufacturers easy targets in recent years for lawsuits seeking to hold them liable for
the criminal misuse of their products. Further, certain Plaintiffs, including special interest groups
and municipalities, have filed similar suits in an effort to legislate and regulate through litigation.
54
Congress’ legislative findings and judgment is also protected from attack. “A legislative
choice is not subject to courtroom fact finding and may be based on rational speculation
unsupported by the evidence or empirical data.” Heller, 509 U.S. at 320 (quoting FCC v. Beach
Communications, Inc., 508 U.S. 307, 315 (1993)). Here, there was testimony before Congress
about the enormous costs to the industry associated with the lawsuits. See Senate Rep. No. 103151, at S8910 (July 26, 2005) (detailing costs including legal costs, loss of productivity, and
increased insurance premiums, and noting that “one lawsuit in one State could bankrupt the
industry”). Common sense supports the conclusion that the industry was in peril.
The scope of the Act is also valid. “A classification does not fail rational-basis review
because it ‘is not made with mathematical nicety or because in practice it results in some
inequality.’” Heller, 509 U.S. at 321 (quoting Dandridge v. Williams, 397 U.S. 471, 485 (1970).
See also Railway Express Agency of New York, 336 U.S. 106, 110 (1949) (“It is no requirement
of equal protection that all evils of the same genus be eradicated or none at all.”). “The problems
of government are practical ones and may justify, if they do not require, rough
accommodations.” Heller, 509 U.S. at 321 (quoting Metropolis Theatre Co. v. Chicago, 228
U.S. 61, 69-70 (1913)).
The Act rationally balances the need to protect manufacturers and sellers who comply
with the laws governing commerce in firearms from lawsuits based on the misuse of those
firearms by criminals with the rights of victims to sue those who knowingly violate those laws or
sell defective products. It is not for this Court to second-guess that balance. The Act is
constitutional.
55
CONCLUSION
For all the foregoing reasons, Lou’s of Upper Darby, Inc. respectfully requests that its
Preliminary Objections be granted and that the Plaintiffs’ claims be dismissed with prejudice as set
forth herein and the Court enter the attached Order(s).
Dated: December 16, 2005.
BECKMAN AND ASSOCIATES
By:
Bradley T. Beckman, Esq.
Shane J. Harrington, Esq.
1500 J.F. Kennedy Boulevard
Suite 910
Philadelphia, PA 19102
PH: (215) 569-8011
FAX: (215) 569-8769
Attorneys for Lou’s of Upper Darby, Inc.
56