Eugene Volokh has extensive commentary in several posts on the recent Ninth Circuit 2-1 decision holding gun manufacturers potentially liable because a mentally ill bigot, Buford Furrow, went on a shooting rampage. (David Kravets, AP, Nov. 20) (via Bashman). Furrow is not one of the thirteen defendants.

Trivia not noted elsewhere: the two judges in the majority opinion, Richard Paez (see Kausfiles, Sep. 17) and Sidney Thomas, had some notoriety a couple of months ago when they were two thirds of a panel that made nationwide headlines by trying to enjoin the California recall election before an en banc panel of the Ninth Circuit overturned them in an 11-0 decision. Among the problems with this decision: it forces California standards upon defendants in other states in violation of the Commerce Clause; and, like the punchcard case, the judges impose a new judicially-created rule on their public-policy say-so without any thought as to real-world consequences, which Professor Volokh effectively elucidates. The lead attorney for the plaintiffs, Peter Nordberg (who is better known to readers of this site for his Blog 702, see July 5), is quoted by the AP as saying “I believe this is the first federal court of appeals decision to sustain a claim like this one.” Does it make me an old fogey already because I remember when calling a position “unprecedented” was an argument against its judicial adoption? (UPDATE: Peter Nordberg responds.)(& welcome Kausfiles readers)

UPDATE: As part of a lengthy criticism of the opinion, Clayton Cramer notes the absurdity of the following allegation: “Plaintiffs also allege that the defendants intentionally produced more firearms than the legitimate market demands with the intent of marketing their firearms to illegal purchasers who buy guns on the secondary market.” (Nov. 20) (via Volokh). That same logic of liability can, of course, be used to hit the manufacturers of any product that can be misused: alcohol, cigarettes, slot machines or casinos (the market of “legitimate gamblers” as opposed to addicts), prescription medications, sugar, SUVs, telephones. Congress is considering action to undo the decision. (Jason Hoppin, “9th Circuit Takes Aim at Gun Companies”, The Recorder, Nov. 21).

Peter Nordberg responds in an e-mail:

Ted Frank’s post of 11/20 on the Ninth Circuit’s decision in Ileto v. Glock (the decision upholding claims of negligence and public nuisance against handgun manufacturers) repeats a quotation attributed to me by the AP that may be accurate, but which is also incomplete and may be misleading.

It is true, on the one hand, that so far as I know, the decision in Ileto v. Glock is the only federal appellate decision to uphold tort claims against gun manufacturers based on their distribution practices.

On the other hand, it is also true, so far as I know, that there is only one federal appellate decision rejecting such claims by shooting victims: Hamilton v. Beretta, 264 F.3d 31 (2d Cir. 2001). And even that decision, which was rendered only after trial and verdict, left open the possibility that liability could be imposed on a different factual record.

The main reason for the paucity of federal appellate precedent is that such claims are generally filed and litigated in state court, where the results are mixed. The claims in the Ileto matter were originally filed in state court too, but the case was removed.

I don’t think the Hamilton decision, which overturned a notorious compromise verdict after the New York state Court of Appeals held that gun manufacturers did not have the duty ascribed to them by plaintiffs, is as plaintiff-friendly as Nordberg would have it. As to the mixed record of state-court gun lawsuits, see our archives.

Filed under: Daubert, guns, Ninth Circuit