Ileto v. Glock, Inc.

Volume 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LILIAN S. ILETO, an individual and 

mother to Joseph S. Ileto,

deceased; JOSHUA STEPAKOFF, a

minor, by his parents Loren Lieb

and Alan B. Stepakoff; MINDY

GALE FINKELSTEIN, a minor, by her

parents David and Donna

Finkelstein; BENJAMIN KADISH, a

minor, by his parents Eleanor and

Charles Kadish; and NATHAN

LAWRENCE POWERS, a minor, by his No. 06-56872

parents Gail and John Michael  D.C. No.

Powers, for himself and on behalf CV-01-09762-ABC

of a class of persons similarly

situated,

Plaintiffs-Appellants,

v.

GLOCK, INC., a Georgia

corporation; RSR MANAGEMENT

CORPORATION; and RSR WHOLESALE

GUNS SEATTLE INC.,

Defendants-Appellees,



5543

5544 ILETO v. GLOCK

MAADI, an Egyptian business 

entity; QUALITY PARTS CO.,

formerly doing business as

Bushmaster Firearms, a Maine

corporation; IMBEL, a Brazilian

business entity; THE LOANDER

PAWNSHOP TOO, a Washington

corporation; DAVID MCGEE, an

individual; INTRAC ARMS

INTERNATIONAL, INC., a Tennessee

Corporation, formerly doing 

business as Intrac corporation also

known as Doe 1, and CHINA

NORTH INDUSTRIES CORP., aka

Norinco,

Defendants,

and

UNITED STATES OF AMERICA,

Defendant-Intervenor-Appellee.



ILETO v. GLOCK 5545

LILIAN S. ILETO, an individual and 

mother to Joseph S. Ileto,

deceased; JOSHUA STEPAKOFF, a

minor, by his parents Loren Lieb

and Alan B. Stepakoff; MINDY

GALE FINKELSTEIN, a minor, by her

parents David and Donna

Finkelstein; BENJAMIN KADISH, a

minor, by his parents Eleanor and

Charles Kadish; and NATHAN No. 07-15403

LAWRENCE POWERS, a minor, by his  D.C. No.

parents Gail and John Michael CV-01-09762-ABC

Powers, for himself and on behalf

of a class of persons similarly

situated,

Plaintiffs-Appellants,

v.

CHINA NORTH INDUSTRIES CORP.,

aka Norinco,

Defendant-Appellee,



5546 ILETO v. GLOCK

and 

UNITED STATES OF AMERICA,

Defendant-Intervenor-Appellee,

and

RSR MANAGEMENT CORPORATION;

RSR GROUP NEVADA, INC.,

formerly doing business as RSR

Wholesale Guns Seattle Inc.;

MAADI, an Egyptian business

entity; QUALITY PARTS CO.,

formerly doing business as

Bushmaster Firearms, a Maine 

corporation; IMBEL, a Brazilian

business entity; THE LOANDER

PAWNSHOP TOO, a Washington

corporation; DAVID MCGEE, an

individual; INTRAC ARMS

INTERNATIONAL, INC., a Tennessee

Corporation, formerly doing

business as Intrac Corporation also

known as Doe 1; GLOCK, INC., a

Georgia corporation,

Defendants.



ILETO v. GLOCK 5547

LILIAN S. ILETO, an individual and 

mother to Joseph S. Ileto,

deceased; JOSHUA STEPAKOFF, a

minor, by his parents Loren Lieb

and Alan B. Stepakoff; MINDY

GALE FINKELSTEIN, a minor, by her

parents David and Donna

Finkelstein; BENJAMIN KADISH, a

minor, by his parents Eleanor and

Charles Kadish; and NATHAN No. 07-15404

LAWRENCE POWERS, a minor, by his

parents Gail and John Michael  D.C. No.

CV-01-09762-ABC

Powers, for himself and on behalf OPINION

of a class of persons similarly

situated,

Plaintiffs-Appellees,

v.

CHINA NORTH INDUSTRIES CORP.,

aka Norinco,

Defendant-Appellant,

and



5548 ILETO v. GLOCK

RSR MANAGEMENT CORPORATION; 

RSR GROUP NEVADA, INC.,

formerly doing business as RSR

Wholesale Guns Seattle Inc.;

MAADI, an Egyptian business

entity; QUALITY PARTS CO.,

formerly doing business as

Bushmaster Firearms, a Maine

corporation; IMBEL, a Brazilian

business entity; THE LOANDER 

PAWNSHOP TOO, a Washington

corporation; DAVID MCGEE, an

individual; INTRAC ARMS

INTERNATIONAL, INC., a Tennessee

Corporation, formerly doing

business as Intrac Corporation also

known as Doe 1; GLOCK, INC., a

Georgia corporation,

Defendants.



Appeal from the United States District Court

for the Central District of California

Audrey B. Collins, District Judge, Presiding

Argued and Submitted

August 5, 2008—Pasadena, California

Filed May 11, 2009

Before: Stephen Reinhardt, Susan P. Graber, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Graber;

Partial Concurrence and Partial Dissent by Judge Berzon

5552 ILETO v. GLOCK

COUNSEL

Peter Nordberg, Berger & Montague, P.C., Philadelphia,

Pennsylvania; and Sayre Weaver, The Educational Fund to

Stop Gun Violence, La Habra, California, for the plaintiffs-

appellants.

Charles H. Dick, Jr., and Shannon D. Sweeney, Baker &

McKenzie LLP, for defendant-appellant/appellee China

North.

Christopher Renzulli, Renzulli Law Firm, LLP, White Plains,

New York, for defendants-appellees Glock & RSR.

H. Thomas Byron, III, Appellate Staff Civil Division, Depart-

ment of Justice, Washington, D.C., for the defendant-

intervenor-appellee.

ILETO v. GLOCK 5553

Beth S. Brinkman, Morrison & Foerster LLP, Washington,

D.C., for amicus curiae.

OPINION

GRABER, Circuit Judge:

By enacting the Protection of Lawful Commerce in Arms

Act (“PLCAA” or “Act”), 15 U.S.C. §§ 7901-7903, Pub. L.

No. 109-92, 119 Stat. 2095 (2005), Congress has protected

federally licensed manufacturers and sellers of firearms from

most civil liability for injuries independently and intentionally

inflicted by criminals who use their non-defective products.

Under the terms of the PLCAA, the claims brought here, by

the victims of a criminal who shot them, against a federally

licensed manufacturer and a federally licensed seller of fire-

arms must be dismissed. But the claims brought against an

unlicensed foreign manufacturer of firearms may proceed. We

therefore affirm.

FACTUAL AND PROCEDURAL HISTORY

On August 10, 1999, Bufford Furrow shot and injured three

young children, one teenager, and one adult at a Jewish Com-

munity Center summer camp in Granada Hills, California.

Later that day, he shot and killed Joseph Ileto, a postal

worker. Furrow was carrying at least seven firearms, which he

possessed illegally.

In 2001, the shooting victims and Ileto’s surviving wife

filed this action against the manufacturers, marketers, import-

ers, distributers, and sellers of the firearms. They alleged that

Defendants intentionally produce, market, distribute, and sell

more firearms than the legitimate market demands in order to

take advantage of re-sales to distributors that they know or

should know will, in turn, sell to illegal buyers. They also

5554 ILETO v. GLOCK

alleged that Defendants’ deliberate and reckless marketing

and distribution strategies create an undue risk that their fire-

arms would be obtained by illegal purchasers for criminal pur-

poses.1 They did not, however, allege that Defendants violated

any statute prohibiting manufacturers or sellers from aiding,

abetting, or conspiring with another person to sell or other-

wise dispose of firearms to illegal buyers. Instead, Plaintiffs

brought their claims against Defendants solely under Califor-

nia common law tort statutes for foreseeably and proximately

causing injury, emotional distress, and death through know-

ing, intentional, reckless, and negligent conduct.

In 2002, the district court dismissed the case for failure to

state a claim under California law. Ileto v. Glock, Inc., 194 F.

Supp. 2d 1040 (C.D. Cal. 2002). We affirmed in part and

reversed in part. Ileto v. Glock, Inc., 349 F.3d 1191 (9th Cir.

2003) (“Ileto I”). We held that Plaintiffs stated cognizable

negligence and public nuisance claims under California law

with respect to the firearms actually used in the shootings. Id.

at 1203-15. We therefore reversed the dismissal of the action

against Defendants RSR Management Corp. and RSR Whole-

sale Guns Seattle Inc. (collectively “RSR”), Glock Inc., and

China North Industries Corp. (“China North”), because Plain-

tiffs alleged that Furrow may have used the firearms manufac-

tured and distributed by those Defendants. Id. at 1215-16. We

affirmed the dismissal of the action against all other Defen-

dants, however, because the allegations did not support a con-

clusion that Furrow fired the firearms associated with those

Defendants. Id. at 1216.

That holding resulted in disagreement within our court.

The majority of our colleagues declined, however, to take the

case en banc. Ileto v. Glock Inc., 370 F.3d 860 (9th Cir. 2004)

1

Although Plaintiffs alleged knowing conduct by Defendants, the under-

lying factual basis for the claims is, of course, Furrow’s criminal acts. Had

the tragic shootings not occurred, there would be neither damages, nor

cognizable claims, nor standing by Plaintiffs to bring these claims.

ILETO v. GLOCK 5555

(order denying rehearing). As noted in our opinion our hold-

ing was not an outlier: Other jurisdictions had upheld similar

claims against manufacturers and distributors of firearms

under other state laws. Ileto I, 349 F.3d at 1200 n.10, 1206-

07, 1214 & n.30 (citing Hamilton v. Beretta U.S.A. Corp., 750

N.E.2d 1055, 1061 (N.Y. 2001); City of Cincinnati v. Beretta

U.S.A. Corp., 768 N.E.2d 1136, 1142 (Ohio 2002); City of

Chicago v. Beretta U.S.A. Corp., 785 N.E.2d 16, 24 (Ill. Ct.

App. 2002), rev’d, 821 N.E.2d 1099 (Ill. 2004)).

The dispute soon reached the floor of the United States

Congress and, in 2005, Congress enacted the PLCAA. The

PLCAA generally preempts claims against manufacturers and

sellers of firearms and ammunition resulting from the criminal

use of those products. The PLCAA affects future and pending

lawsuits, and courts are required to “immediately dismiss[ ]”

any pending lawsuits preempted by the PLCAA. 15 U.S.C.

§ 7902(b).

After enactment of the PLCAA, the district court halted

discovery and sought briefing on the effect of the Act on this

case. Plaintiffs argued that the PLCAA did not apply here

and, in the alternative, that the PLCAA is unconstitutional.

The district court permitted the United States to intervene,

pursuant to 28 U.S.C. § 2403(a), to defend the constitutional-

ity of the Act.

In a published opinion, the district court dismissed Plain-

tiffs’ claims against Defendants Glock and RSR. Ileto v.

Glock, Inc., 421 F. Supp. 2d 1274 (C.D. Cal. 2006). The court

held that the PLCAA preempted Plaintiffs’ claims against

those Defendants, id. at 1284-98, and upheld the constitution-

ality of the Act, id. at 1298-1304. The court eventually

entered a final judgment pursuant to Federal Rule of Civil

Procedure 54(b) as to Defendants Glock and RSR. Plaintiffs

timely appealed.

In an unpublished order, the district court denied Defendant

China North’s motion for summary judgment. The court held

5556 ILETO v. GLOCK

that the PLCAA did not preempt Plaintiffs’ claims against

China North because, by contrast to Glock and RSR, China

North is not a federal firearms licensee, as required by the

PLCAA. The district court then certified an interlocutory

appeal of that order.

We consolidated the appeals. In addition to the parties, the

United States appears before us as an intervenor in support of

the constitutionality of the PLCAA, and we accepted an

amicus curiae brief from the Legal Community Against Vio-

lence in support of Plaintiffs.

STANDARD OF REVIEW

All the questions presented here are questions of law that

we review de novo. See United States v. Lujan, 504 F.3d

1003, 1006 (9th Cir. 2007) (“[T]he constitutionality of a fed-

eral statute [is] a question of law that we review de novo.”);

J.&G. Sales Ltd. v. Truscott, 473 F.3d 1043, 1047 (9th Cir.)

(“We apply a de novo standard of review to . . . questions of

statutory interpretation.”), cert. denied, 128 S. Ct. 208 (2007);

Fajardo v. County of Los Angeles, 179 F.3d 698, 699 (9th Cir.

1999) (“This court reviews de novo Rule 12(c) judgments on

the pleadings.”).

DISCUSSION

A. Preemption of Claims Against Defendants Glock and

RSR

[1] The PLCAA requires that federal courts “immediately

dismiss[ ]” a “qualified civil liability action.” 15 U.S.C.

§ 7902(b).

The term “qualified civil liability action” means a

civil action or proceeding or an administrative pro-

ceeding brought by any person against a manufac-

turer or seller of a qualified product, or a trade

ILETO v. GLOCK 5557

association, for damages, punitive damages, injunc-

tive 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

[specified enumerated exceptions.]

Id. § 7903(5)(A). We agree with the parties that this case

meets all the elements of that general definition as applied to

Defendants Glock and RSR. This case is a “civil action”

brought by a “person” for damages and other relief to redress

harm “resulting from the criminal . . . misuse of a qualified

product by . . . a third party.” Id. Additionally, Glock and

RSR are “manufacturer[s] or seller[s] of a qualified product,”

id., because they are, respectively, a federally licensed manu-

facturer and a federally licensed distributor of the firearms

allegedly used in the shootings, see id. § 7903(2) (defining

“manufacturer”); id. § 7903(6) (defining “seller”).

[2] The PLCAA therefore requires dismissal if none of the

specified exceptions applies. Plaintiffs argue that the third

exception, § 7903(5)(A)(iii), applies. Under that exception,

the PLCAA does not preempt

an action in which a manufacturer or seller of a

qualified product knowingly violated a State or Fed-

eral statute applicable to the sale or marketing of the

product, 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 quali-

fied product, or aided, abetted, or conspired with any

person in making any false or fictitious oral or writ-

ten statement with respect to any fact material to the

5558 ILETO v. GLOCK

lawfulness of the sale or other disposition of a quali-

fied product; 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 qualified product,

knowing, or having reasonable cause to believe, that

the actual buyer of the qualified product was prohib-

ited from possessing or receiving a firearm or ammu-

nition under subsection (g) or (n) of section 922 of

Title 18[.]

Id. § 7903(5)(A)(iii) (emphasis added).

[3] This exception has come to be known as the “predicate

exception,” because a plaintiff not only must present a cogni-

zable claim, he or she also must allege a knowing violation of

a “predicate statute.” City of New York v. Beretta U.S.A.

Corp., 524 F.3d 384, 390 (2d Cir. 2008), cert. denied, 129

S. Ct. 1579 (2009); District of Columbia v. Beretta U.S.A.

Corp., 940 A.2d 163, 168 (D.C. 2008), cert. denied, 129

S. Ct. 1579 (2009); Smith & Wesson Corp. v. City of Gary,

875 N.E.2d 422, 429-30 (Ind. Ct. App. 2007). That is, a plain-

tiff must allege a knowing violation of “a State or Federal

statute applicable to the sale or marketing of the product.” 15

U.S.C. § 7903(5)(A)(iii). In City of New York, for instance,

the plaintiffs brought a common-law public nuisance claim

(the cause of action) and also alleged that the defendants

knowingly violated a state criminal statute (the predicate stat-

ute). 524 F.3d at 390.

Here, we previously ruled that Plaintiffs’ negligence and

public nuisance allegations state cognizable claims under Cal-

ifornia law.2 Ileto I, 349 F.3d at 1209, 1215. To meet the

2

We decline to revisit that holding. See Merritt v. Mackey, 932 F.2d

1317, 1320 (9th Cir. 1991) (“Under the ‘law of the case’ doctrine, one

panel of an appellate court will not as a general rule reconsider questions

ILETO v. GLOCK 5559

requirements of the predicate exception, Plaintiffs do not

point to an allegation of a knowing violation of any separate

statute. Instead, Plaintiffs point out that, unlike many jurisdic-

tions, California’s general tort law is codified in its civil code.

See Cal. Civ. Code § 1714(a) (negligence); id. § 3479 (nui-

sance); id. § 3480 (public nuisance). Plaintiffs argue that their

allegations of knowing violations of those statutes satisfy the

requirements of the predicate exception. In short, Plaintiffs

argue that California Civil Code sections 1714, 3479, and

3480 (“California tort laws”), provide both the cause of action

and the requisite predicate statute under the PLCAA. Defen-

dants counter that only a separate statute, regulating firearms

exclusively (or at least explicitly), can be a predicate statute.

The parties’ disagreement, then, is whether the California

tort laws are predicate statutes under the PLCAA. More spe-

cifically, the parties dispute whether the California tort stat-

utes are “applicable to the sale or marketing of [firearms3].”

15 U.S.C. § 7903(5)(A)(iii). When interpreting a statute, we

look first to its text. See Robinson v. Shell Oil Co., 519 U.S.

337, 340 (1997) (“Our first step in interpreting a statute is to

determine whether the language at issue has a plain and

unambiguous meaning with regard to the particular dispute in

the case.”); FMC Corp. v. Holliday, 498 U.S. 52, 57 (1990)

(“We begin with the language employed by Congress and the

assumption that the ordinary meaning of that language accu-

rately expresses the legislative purpose.” (internal quotation

marks omitted)). “If the statute’s terms are ambiguous, we

may use canons of construction, legislative history, and the

which another panel has decided on a prior appeal in the same case.”

(brackets and some internal quotation marks omitted)). Contrary to Defen-

dants’ assertion, the intervening case People v. Arcadia Mach. & Tool,

Inc. (In re Firearm Cases), 24 Cal. Rptr. 3d 659 (Ct. App. 2005), does not

conflict with our previous holding.

3

The statute covers both firearms and ammunition. Except as otherwise

specified, we will refer to “firearms” as a convenient shorthand for “fire-

arms and ammunition.”

5560 ILETO v. GLOCK

statute’s overall purpose to illuminate Congress’s intent.”

Jonah R. v. Carmona, 446 F.3d 1000, 1005 (9th Cir. 2006).

1. Text of the Predicate Exception

[4] “The plainness or ambiguity of statutory [text] is deter-

mined by reference to the [text] itself, the specific context in

which that [text] is used, and the broader context of the statute

as a whole.” Robinson, 519 U.S. at 341. Here, the statutory

text states that a predicate statute is “a State or Federal statute

applicable to the sale or marketing of [firearms].” 15 U.S.C.

§ 7903(5)(A)(iii). There is no dispute that the California tort

laws, which are codified in the California Civil Code, are state

statutes. The issue is whether those statutes are “applicable”

to the sale or marketing of firearms within the meaning of the

PLCAA.

As discussed below, Plaintiffs and Defendants present com-

peting definitions of the term “applicable.” Like most terms,

“applicable” does not have only one meaning when viewed in

isolation. Not surprisingly then, courts have struggled to

determine the meaning of “applicable” as used in a variety of

statutes. See, e.g., Medtronic, Inc. v. Lohr, 518 U.S. 470

(1996) (statute governing medical devices); McGee v. Peake,

511 F.3d 1352 (Fed. Cir. 2008) (statute governing the United

States Court of Appeals for Veterans Claims); Peter Pan Bus

Lines, Inc. v. Fed. Motor Carrier Safety Admin., 471 F.3d

1350 (D.C. Cir. 2006) (statute governing the Federal Motor

Carrier Safety Administration).

One everyday meaning, and a dictionary definition, of the

term “applicable” is “capable of being applied.” Black’s Law

Dictionary 98 (6th ed. 1990). Plaintiffs urge us to conclude

that this expansive definition is the only possible meaning of

the term “applicable” in the PLCAA’s predicate exception.

Under that definition, Plaintiffs would prevail: Because we

held in Ileto I that Plaintiffs’ claims concerning the sale and

marketing of firearms are cognizable, the California tort laws

ILETO v. GLOCK 5561

are “[capable of being applied to] the sale or marketing of

[firearms].”

By contrast, Defendants argue that Congress intended a

very narrow use of the term “applicable,” which can mean

“relevant” or “applicable specifically.” Defendants argue that,

under that narrow meaning of the term, the requirements of

the predicate exception would be met only if a plaintiff

alleged a knowing violation of a statute that pertained exclu-

sively to the sale or marketing of firearms. The dictionary cap-

tures this narrower definition, see Black’s Law Dictionary at

98 (defining “applicable” as “relevant”), and so does every-

day usage.4

[5] We are convinced at the outset, then, that the term “ap-

plicable” has a spectrum of meanings, including the two poles

identified by the parties. To determine Congress’ intended

meaning in the PLCAA, we must examine “the specific con-

text in which [the term ‘applicable’] is used[ ] and the broader

context of the statute as a whole.” Robinson, 519 U.S. at 341.

Congress listed examples of predicate statutes in the

PLCAA:

(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 quali-

fied product, or aided, abetted, or conspired with any

person in making any false or fictitious oral or writ-

4

For instance, if someone says, “the following rules are applicable to the

game of basketball,” one would expect to hear a list of rules concerning

traveling, foul shots, and the like. One would not expect to hear that force

equals mass times acceleration or that an object falls at an increasing rate

of 9.8 meters per second per second. The rules of physics undeniably

apply to the game of basketball in the broad sense of the term “applica-

ble,” but a speaker who listed those rules would almost certainly be doing

so for comic effect.

5562 ILETO v. GLOCK

ten statement with respect to any fact material to the

lawfulness of the sale or other disposition of a quali-

fied product; 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 qualified product,

knowing, or having reasonable cause to believe, that

the actual buyer of the qualified product was prohib-

ited from possessing or receiving a firearm or ammu-

nition under subsection (g) or (n) of section 922 of

Title 18[.]

15 U.S.C. § 7903(5)(A)(iii). We conclude from those illustra-

tions that Plaintiffs’ asserted meaning of “applicable” appears

too broad, but that Defendants’ proposed restrictive meaning

appears too narrow. See Jarecki v. G.D. Searle & Co., 367

U.S. 303, 307 (1961) (noting that "a word is known by the

company it keeps”); Cal. State Legislative Bd. v. Dep’t of

Transp., 400 F.3d 760, 763 (9th Cir. 2005) (“[T]he general

term should be defined in light of the specific examples pro-

vided.”).

The illustrative predicate statutes pertain specifically to

sales and manufacturing activities, and most also target the

firearms industry specifically. Those examples suggest that

Plaintiffs’ proposed all-encompassing meaning of the term

“applicable” is incorrect, because each of the examples has—

at the very least—a direct connection with sales or manufac-

turing. Indeed, if any statute that “could be applied” to the

sales and manufacturing of firearms qualified as a predicate

statute, there would be no need to list examples at all. Simi-

larly, the examples suggest that Defendants’ asserted narrow

meaning is incorrect, because some of the examples do not

pertain exclusively to the firearms industry.

In conclusion, we hold that, viewed in isolation, the term

“applicable” has a range of meanings. The context in which

ILETO v. GLOCK 5563

the term appears in the PLCAA suggests that neither Plain-

tiffs’ nor Defendants’ asserted meaning is wholly correct. In

any event, we conclude, as did the Second Circuit, City of

New York, 524 F.3d at 401, that the text of the statute alone

is inconclusive as to Congress’ intent.5 We thus are left to

examine the additional indicators of congressional intent.

Jonah R., 446 F.3d at 1005.

2. The Purpose of the PLCAA

Congress enacted the PLCAA in response to “[l]awsuits . . .

commenced against manufacturers, distributors, dealers, and

importers of firearms that operate as designed and intended,

which seek money damages and other relief for the harm

caused by the misuse of firearms by third parties, including

criminals.” 15 U.S.C. § 7901(a)(3). Congress found that man-

ufacturers and sellers of firearms “are not, and should not, be

liable for the harm caused by those who criminally or unlaw-

fully misuse firearm products or ammunition products that

function as designed and intended.” Id. § 7901(a)(5). Con-

gress found egregious “[t]he possibility of imposing liability

on an entire industry for harm that is solely caused by others.”

Id. § 7901(a)(6). Congress reasoned that “[t]he liability

actions . . . are based on theories without foundation in hun-

dreds of years of the common law and jurisprudence of the

United States and do not represent a bona fide expansion of

the common law.” Id. § 7901(a)(7).

5

We acknowledge that the Indiana Court of Appeals reached the oppo-

site conclusion. City of Gary, 875 N.E.2d at 434. We find that case to have

limited persuasive value, though, in part because the court’s decision

rested, in the alternative, on the fact that the plaintiffs there had alleged

violations of the state’s statutory firearm regulations. Id. at 432-33 & n.7.

No such allegations are made here. Indeed, the City of Gary court distin-

guished the facts of this case on that basis. See id. at 433 n.7 (“Here,

unlike in Ileto, the City alleged activity on the part of the Manufacturers

that facilitates unlawful sales and violates regulatory statutes.”).

5564 ILETO v. GLOCK

[6] The PLCAA’s stated primary purpose is:

To prohibit causes of action against manufactur-

ers, distributors, dealers, and importers of firearms or

ammunition products, and their trade associations,

for the harm solely caused by the criminal or unlaw-

ful misuse of firearm products or ammunition prod-

ucts by others when the product functioned as

designed and intended.

Id. § 7901(b)(1).

[7] In view of those congressional findings and that state-

ment of purpose, Congress clearly intended to preempt

common-law claims, such as general tort theories of liability.6

Plaintiffs’ claims—"classic negligence and nuisance,” Ileto I,

349 F.3d at 1202—are general tort theories of liability that

traditionally have been embodied in the common law. With

this background in mind, which strongly suggests that Con-

gress intended to preempt Plaintiffs’ claims, we turn to the

predicate exception at issue here.

The predicate exception covers causes of action that allege

knowing violations of a state or federal statute applicable to

the sale or marketing of firearms. Plaintiffs argue that this

exception covers all state statutes that could be applied to the

6

That conclusion is bolstered by Congress’ inclusion of the second

exception to preemption: The PLCAA does not preempt claims against a

seller of firearms for negligent entrustment or negligence per se. 15 U.S.C.

§ 7903(5)(A)(ii). That exception demonstrates that Congress consciously

considered how to treat tort claims. While Congress chose generally to

preempt all common-law claims, it carved out an exception for certain

specified common-law claims (negligent entrustment and negligence per

se). Cf. Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here . . .

Congress includes particular language in one section of a statute but omits

it in another section of the same Act, it is generally presumed that Con-

gress acts intentionally and purposely in the disparate inclusion or exclu-

sion.” (brackets and internal quotation marks omitted)). Plaintiffs have not

argued that their claims fall under this exception.

ILETO v. GLOCK 5565

sale or marketing of firearms. Because California long ago

codified its common law into the California Civil Code, Plain-

tiffs argue that its general tort claims fall within this excep-

tion. We disagree for three reasons.

[8] First, although the California legislature codified its

common law,

it was not the intention of the Legislature in enacting

section 1714 of the Civil Code, as well as other sec-

tions of that code declarative of the common law, to

insulate the matters therein expressed from further

judicial development; rather it was the intention of

the Legislature to announce and formulate existing

common law principles and definitions for purposes

of orderly and concise presentation and with a dis-

tinct view toward continuing judicial evolution.

Li. v. Yellow Cab Co. of Cal., 532 P.2d 1226, 1233 (Cal.

1975). In other words, although California has codified its

common law, the evolution of those statutes is nevertheless

subject to the same “judicial evolution” as ordinary common-

law claims in jurisdictions that have not codified common

law. That “judicial evolution” was precisely the target of the

PLCAA:

The liability actions . . . are based on theories

without foundation in hundreds of years of the com-

mon law and jurisprudence of the United States and

do not represent a bona fide expansion of the com-

mon law. The possible sustaining of these actions by

a maverick judicial officer or petit jury would

expand civil liability in a manner never contem-

plated by the framers of the Constitution, by Con-

gress, or by the legislatures of the several States.

15 U.S.C. § 7901(a)(7).

5566 ILETO v. GLOCK

Second, congressional findings speak to the scope of the

predicate exception. Against the backdrop of Congress’ find-

ings on the unjustified “expansion of the common law,” id.,

Congress also found that “[t]he manufacture, importation,

possession, sale, and use of firearms and ammunition in the

United States are heavily regulated by Federal, State, and

local laws,” id. § 7901(a)(4). We find it more likely that Con-

gress had in mind only these types of statutes—statutes that

regulate manufacturing, importing, selling, marketing, and

using firearms or that regulate the firearms industry—rather

than general tort theories that happened to have been codified

by a given jurisdiction.

Third, Plaintiffs’ argument leads to a result that is difficult

to square with Congress’ intention to create national unifor-

mity. If Plaintiffs’ view is correct, then general tort theories

of liability are not preempted by the PLCAA in those states,

like California, that have codified its common law. But, at the

same time, those same theories of liability are preempted by

the PLCAA in the states that have not codified their common

law.

[9] In conclusion, an examination of the text and purpose

of the PLCAA shows that Congress intended to preempt gen-

eral tort theories of liability even in jurisdictions, like Califor-

nia, that have codified such causes of action.

3. Legislative History

[10] We make two general observations from our review of

the extensive legislative history of the PLCAA.7 First, all of

the congressional speakers’ statements concerning the scope

of the PLCAA reflected the understanding that manufacturers

and sellers of firearms would be liable only for statutory vio-

7

We are indebted to the district court for its exhaustive analysis of the

legislative history. Ileto, 421 F. Supp. 2d at 1292-96; see also City of New

York, 524 F.3d at 403-04 (discussing the legislative history of the Act).

ILETO v. GLOCK 5567

lations concerning firearm regulations or sales and marketing

regulations. See, e.g., 151 Cong. Rec. S9087-01 (statement of

Sen. Craig) (“This bill does not shield [those who] . . . have

violated existing law . . . and I am referring to the Federal

firearms laws.”); id. S9217-02 (statement of Sen. Hutchison)

(“[Lawsuits] would also be allowed where there is a knowing

violation of a firearms law.”); id. (statement of Sen. Craig

reading a Wall Street Journal article) (“The gun makers . . .

would continue to face civil suits for defective products or for

violating sales regulations.”); id. (statement of Sen. Reed in

opposition to the PLCAA) (“We will let [plaintiffs] proceed

with their suit if there is a criminal violation or a statutory

violation, a violation of regulations, but for the vast number

of other responsibilities we owe to each other, that are defined

for the civil law, one will not have the opportunity to go to

court.”); id. S8927-01 (statement of Sen. Reed) (stating that

the PLCAA would not apply to violations of “statutes related

to the sale or manufacturing of a gun”); id. S9246-02 (state-

ment of Sen. Santorum) (“This bill provides carefully tailored

protections that continue to allow legitimate suits based on

knowing violations of Federal or State law related to gun

sales.”).

[11] Second, congressional speakers referred to this very

case as the type of case they meant the PLCAA to preempt.

See 151 Cong. Rec. E2162-03 (statement of Rep. Stearns) (“I

want the Congressional Record to clearly reflect some spe-

cific examples of the type of predatory lawsuits this bill will

immediately stop[:] . . . [An] example is the case of Ileto v.

Glock, in Federal court in Los Angeles, CA.”); id. (statement

of Sen. Craig) (“I want to give some examples of exactly the

type of predatory lawsuits this bill will eliminate. . . . [An]

example of a lawsuit captured by this bill is the case of Ileto

v. Glock, pending in Federal court in Los Angeles, CA.”); see

also Adames v. Sheahan, 880 N.E.2d 559, 586 (Ill. Ct. App.

2007) (noting that “Congress was primarily concerned with

novel nuisance cases like Ileto”), rev’d on other grounds, ___

5568 ILETO v. GLOCK

N.E.2d ___, No. 105789, 2009 WL 711297 (Ill. Mar. 19,

2009).

We are mindful of the limited persuasive value of the

remarks of an individual legislator. See, e.g., Consumer Prod.

Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 118

(1980) (“[O]rdinarily even the contemporaneous remarks of a

single legislator who sponsors a bill are not controlling in ana-

lyzing legislative history.”); Brock v. Writers Guild of Am.,

W., Inc., 762 F.2d 1349, 1356 (9th Cir. 1985) (“The remarks

of legislators opposed to legislation are entitled to little

weight in the construction of statutes.”). Nevertheless, the

unanimously expressed understanding of the scope of the

PLCAA assists our analysis, particularly when that expressed

understanding is in complete harmony with the congressional

purpose and the statutory text.

4. Conclusion

[12] “Our inquiry into the scope of a statute’s pre-emptive

effect is guided by the rule that ‘[t]he purpose of Congress is

the ultimate touchstone in every pre-emption case.’ ” Altria

Group, Inc. v. Good, 129 S. Ct. 538, 543 (2008) (quoting

Medtronic, Inc., 518 U.S. at 485) (some internal quotation

marks omitted). The purpose of the PLCAA leads us to con-

clude that Congress intended to preempt general tort law

claims such as Plaintiffs’, even though California has codified

those claims in its civil code.8 Our examination of the legisla-

tive history of the Act further confirms that conclusion.

Accordingly, we hold that the district court correctly held that

8

The constitutional avoidance doctrine therefore does not apply. See

Boumediene v. Bush, 128 S. Ct. 2229, 2271 (2008) (“The canon of consti-

tutional avoidance does not supplant traditional modes of statutory inter-

pretation. We cannot ignore the text and purpose of a statute in order to

save it.” (citation omitted)); see also supra Part B.4.

ILETO v. GLOCK 5569

Plaintiffs’ California tort claims against Defendants Glock

and RSR are preempted by the PLCAA.9

B. Constitutionality of the PLCAA

Decrying primarily the retroactive aspects of the Act, Plain-

tiffs argue that the PLCAA is unconstitutional on its face and

as applied. We note at the outset that “retroactive statutes

raise particular concerns.” Landgraf v. USI Film Prods., 511

U.S. 244, 266 (1994). Indeed,

[t]he Legislature’s unmatched powers allow it to

sweep away settled expectations suddenly and with-

out individualized consideration. Its responsivity to

political pressures poses a risk that it may be

tempted to use retroactive legislation as a means of

retribution against unpopular groups or individuals.

Id.

The strongest protection that federal courts give to those

concerns, however, is a requirement that Congress manifest

the retroactive nature of legislation with “clear intent.” Id. at

272. “[A] requirement that Congress first make its intention

clear helps ensure that Congress itself has determined that the

benefits of retroactivity outweigh the potential for disruption

or unfairness.” Id. at 268; see also id. at 272-73 (“Requiring

clear intent assures that Congress itself has affirmatively con-

sidered the potential unfairness of retroactive application and

determined that it is an acceptable price to pay for the coun-

tervailing benefits.”). “Such a requirement allocates to Con-

gress responsibility for fundamental policy judgments

concerning the proper temporal reach of statutes, and has the

additional virtue of giving legislators a predictable back-

ground rule against which to legislate.” Id. at 273.

9

We need not, and do not, express any view on the scope of the predi-

cate exception with respect to any other statute.

5570 ILETO v. GLOCK

Where, as here, Congress has expressed its clear intent that

the legislation be retroactive, “the constitutional impediments

to retroactive civil legislation are now modest.” Id. at 272; see

also id. at 267 (“The Constitution’s restrictions, of course, are

of limited scope.”). “[T]he potential unfairness of retroactive

civil legislation is not a sufficient reason for a court to fail to

give a statute its intended scope.” Id. “Retroactivity provi-

sions often serve entirely benign and legitimate purposes,

[including] . . . simply to give comprehensive effect to a new

law Congress considers salutary.” Id. at 267-68.

Additionally, we note that the only function of the PLCAA

is to preempt certain claims. The practical effect of the

PLCAA is thus to shift the economic burden for those claims

from the firearms industry to the would-be plaintiffs. “It is by

now well established that legislative Acts adjusting the bur-

dens and benefits of economic life come to the Court with a

presumption of constitutionality . . .” Usery v. Turner Elkhorn

Mining Co., 428 U.S. 1, 15 (1976). “[T]he strong deference

accorded legislation in the field of national economic policy

is no less applicable when that legislation is applied retroac-

tively . . . .” Pension Benefit Guar. Corp. v. R.A. Gray & Co.,

467 U.S. 717, 729 (1984).

With that background understanding, we address each of

Plaintiffs’ constitutional challenges. Like all appellate courts

that have assessed the constitutionality of the PLCAA, City of

New York, 524 F.3d at 392-98; Adames, 2009 WL 711297, at

*20-21; District of Columbia, 940 A.2d at 172-82, we hold

that the Act is constitutional on its face and as applied.

1. Separation of Powers

[13] Plaintiffs argue that, on its face, the PLCAA violates

the constitutional requirement of separation of powers

because, by enacting that Act, Congress impinged on the role

of the judiciary. It has long been recognized that Congress

may not “prescribe rules of decision to the Judicial Depart-

ILETO v. GLOCK 5571

ment of the government in cases pending before it.” United

States v. Klein, 80 U.S. (13 Wall.) 128, 147 (1872). “What-

ever the precise scope of Klein, however, later decisions have

made clear that its prohibition does not take hold when Con-

gress ‘amend[s] applicable law.’ ” Plaut v. Spendthrift Farm,

Inc., 514 U.S. 211, 218 (1995) (quoting Robertson v. Seattle

Audubon Soc’y, 503 U.S. 429, 441 (1992)). “Thus, if a statute

‘compel[s] changes in the law, not findings or results under

old law,’ it merely amends the underlying law, and is there-

fore not subject to a Klein challenge.” Imprisoned Citizens

Union v. Ridge, 169 F.3d 178, 187 (3d Cir. 1999) (alteration

in original) (quoting Robertson, 503 U.S. at 438).

[14] Here, Congress has amended the applicable law; it has

not compelled results under old law. The PLCAA sets forth

a new legal standard—the definition (with exceptions) of a

“qualified civil liability action"—to be applied to all cases. As

we explained in Catholic Social Services, Inc. v. Reno, 134

F.3d 921, 926 (9th Cir. 1997) (per curiam), the Supreme

Court in Robertson “held that a statute affecting pending

cases, indeed designating them by name and number, did not

offend separation of powers because Congress was changing

the law applicable to those cases rather than impermissibly

interfering with the judicial process.” Here, Plaintiffs’ argu-

ment that the PLCAA runs afoul of Klein is even less compel-

ling than the argument in Robertson because the PLCAA

applies generally to all cases, both pending and future.

We likewise reject Plaintiffs’ alternative argument that the

PLCAA violates the Supreme Court’s holding in Plaut that

Congress cannot “overrule[ ] ‘the judicial department with

regard to a particular case or controversy.’ ” (Quoting Plaut,

514 U.S. at 227.) As the quoted sentence makes clear, that

rule applies to final decisions by the judiciary, not to pending

cases. See id. (“[E]ach court, at every level, must decide [a

case] according to existing laws. Having achieved finality,

however, a judicial decision becomes the last word of the

judicial department with regard to a particular case or contro-

5572 ILETO v. GLOCK

versy [and cannot be overruled by congressional act].”

(emphasis added) (citation and internal quotation marks omit-

ted)). The PLCAA applies only to pending and future cases

and does not purport to undo final judgments of the judiciary.

The mere fact that members of Congress wanted to preempt

this pending case by name does not change our analysis.

[15] For those reasons, we hold that the PLCAA does not

violate the constitutional separation of powers. See also City

of New York, 524 F.3d at 395-96 (holding that the PLCAA

does not violate separation of powers doctrine); District of

Columbia, 940 A.2d at 172-73 (same).

2. Equal Protection, Substantive Due Process, and Tak-

ings

[16] Plaintiffs next argue that the PLCAA violates equal

protection and substantive due process principles because the

Act is an unconstitutional exercise of congressional power

that cannot withstand rational basis review. Plaintiffs face an

uphill battle: “[B]arring irrational or arbitrary conduct, Con-

gress can adjust the incidents of our economic lives as it sees

fit. Indeed, the Supreme Court has not blanched when settled

economic expectations were upset, as long as the legislature

was pursuing a rational policy.” Lyon v. Agusta S.P.A., 252

F.3d 1078, 1086 (9th Cir. 1989) (citations omitted); see also

Pension Benefit, 467 U.S. at 729 (“Provided that the retroac-

tive application of a statute is supported by a legitimate legis-

lative purpose furthered by rational means, judgments about

the wisdom of such legislation remain within the exclusive

province of the legislative and executive branches[.]”); Usery,

428 U.S. at 15 (“It is by now well established that legislative

Acts adjusting the burdens and benefits of economic life come

to the Court with a presumption of constitutionality, and that

the burden is on one complaining of a due process violation

to establish that the legislature has acted in an arbitrary and

irrational way.”).

ILETO v. GLOCK 5573

There is nothing irrational or arbitrary about Congress’

choice here: It saw fit to “adjust the incidents of our economic

lives” by preempting certain categories of cases brought

against federally licensed manufacturers and sellers of fire-

arms. In particular, Congress found that the targeted lawsuits

“constitute[ ] an unreasonable burden on interstate and foreign

commerce of the United States,” 15 U.S.C. § 7901(a)(6), and

sought “[t]o prevent the use of such lawsuits to impose unrea-

sonable burdens on interstate and foreign commerce,” id.

§ 7901(b)(4).10 Congress carefully constrained the Act’s reach

to the confines of the Commerce Clause. See, e.g., id.

§ 7903(2) (including an interstate- or foreign-commerce ele-

ment in the definition of a “manufacturer”); id. § 7903(4)

(same: “qualified product”); id. § 7903(6) (same: “seller”).

Plaintiffs disagree with Congress’ judgment in this regard.

In their view, the firearms industry is subject to relatively few

lawsuits compared to other major industries and, in any event,

the pending lawsuits could not possibly have an appreciable

effect on the firearms industry (and, by extension, on inter-

state or foreign commerce). We need not tarry long on these

considerations, because our only task is to consider whether

Congress’ chosen allocation was “irrational or arbitrary.”

Lyons, 252 F.3d at 1086; Usery, 428 U.S. at 15; see also

Pierce County v. Guillen, 537 U.S. 129, 147 (2003) (uphold-

ing a Commerce Clause challenge because “Congress could

reasonably believe” that the statute affected interstate com-

merce). We have no trouble concluding that Congress ratio-

nally could find that, by insulating the firearms industry from

a specified set of lawsuits, interstate and foreign commerce of

firearms would be affected. And “it was eminently rational for

10

We note that Congress also included findings and statements of pur-

pose related to its interest in protecting individuals’ Second Amendment

right to bear arms. 15 U.S.C. § 7901(a)(1)&(2); id. § 7901(b)(2). In their

briefs, Plaintiffs argued that the government has no such legitimate inter-

est, but the Supreme Court has since disagreed. District of Columbia v.

Heller, 128 S. Ct. 2783 (2008).

5574 ILETO v. GLOCK

Congress to conclude that the purposes of the [PLCAA] could

be more fully effectuated if its . . . provisions were applied

retroactively.” Pension Benefit, 467 U.S. at 730; see also City

of New York, 524 F.3d at 395 (“We find that Congress has not

exceeded its authority in this [PLCAA] case, where there can

be no question of the interstate character of the industry in

question and where Congress rationally perceived a substan-

tial effect on the industry of the litigation that the Act seeks

to curtail.”); District of Columbia, 940 A.2d at 175 (“Thus the

PLCAA . . . is reasonably viewed as an ‘adjust[ment of] the

burdens and benefits of economic life’ by Congress, one it

deemed necessary in exercising its power to regulate interstate

commerce.” (alteration in original) (quoting Usery, 428 U.S.

at 15)); Adames, 2009 WL 711297, at *20-21 (similarly

rejecting a Commerce Clause challenge to the PLCAA).

Plaintiffs argue, in the alternative, that both equal protec-

tion and substantive due process principles require us to con-

duct a more searching review. Plaintiffs cite Lawrence v.

Texas, 539 U.S. 558 (2003), but they fail to identify—and we

fail to see—any suspect classification common to those

adversely affected by the PLCAA.

Plaintiffs also argue that greater scrutiny is required

because they have a vested property right in their accrued

state-law causes of action. Plaintiffs’ premise is incorrect:

“We have squarely held that although a cause of action is a

species of property, a party’s property right in any cause of

action does not vest until a final unreviewable judgment is

obtained.” Lyon, 252 F.3d at 1086 (emphasis and internal

quotation marks omitted); see also Fields v. Legacy Health

Sys., 413 F.3d 943, 956 (9th Cir. 2005) (“Causes of action are

a species of property protected by the Fourteenth Amend-

ment’s Due Process Clause. However, a party’s property right

in any cause of action does not vest until a final unreviewable

judgment is obtained.” (citation, internal quotation marks, and

emphasis omitted)); Austin v. City of Bisbee, 855 F.2d 1429,

1435 (9th Cir. 1988) (explaining that, although a cause of

ILETO v. GLOCK 5575

action is a species of property, “it is inchoate and affords no

definite or enforceable property right until reduced to final

judgment” (internal quotation marks omitted)).

Plaintiffs’ argument that the PLCAA effects an unconstitu-

tional taking without just compensation fails for the same rea-

son. See Landgraf, 511 U.S. at 266 (“The Fifth Amendment’s

Takings Clause prevents the Legislature (and other govern-

ment actors) from depriving private persons of vested prop-

erty rights . . . .” (emphasis added)); see also Concrete Pipe

& Prods. of Cal. Inc. v. Constr. Laborers Pension Trust for

S. Cal., 508 U.S. 602, 641 (1993) (“Given that [the petition-

er’s] due process arguments are unavailing, it would be sur-

prising indeed to discover [that] the challenged statute

nonetheless violat[ed] the Takings Clause.”); District of

Columbia, 940 A.2d at 180-82 (rejecting a Takings Clause

challenge to the PLCAA).

3. Procedural Due Process

Plaintiffs next argue that the PLCAA violates their proce-

dural due process rights because their pending lawsuit was

abridged without adequate hearing. “As [the Supreme

Court’s] decisions have emphasized time and again, the Due

Process Clause grants the aggrieved party the opportunity to

present his case and have its merits fairly judged.” Logan v.

Zimmerman Brush Co., 455 U.S. 422, 433 (1982).

In Logan, state law required a state commission to conduct

a fact-finding conference within 120 days of receiving of an

employment discrimination complaint. Id. at 424. The plain-

tiff filed a timely complaint, but the commission inadvertently

convened the conference after the 120-day deadline. Id. at

424-25. The Illinois Supreme Court held that the Commission

therefore lacked jurisdiction over the complaint because the

120-day deadline was jurisdictional, and rejected the plain-

tiff’s due process arguments. Id. at 426-27.

5576 ILETO v. GLOCK

The United States Supreme Court reversed. The Court held

that the plaintiff had a protected property interest in her claim

and “that ‘some form of hearing’ is required before the owner

is finally deprived of a protected property interest.” Id. at 433

(quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564,

570 n.8 (1972)). “To put it as plainly as possible, the State

may not finally destroy a property interest without first giving

the putative owner an opportunity to present his claim of enti-

tlement.” Id. at 434.

But the Court explicitly limited its holding to “a procedural

limitation on the claimant’s ability to assert his rights, not a

substantive element of the [underlying] claim.” Id. at 433. The

Court explained:

Of course, the State remains free to create sub-

stantive 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. The

Court held as much in Martinez v. California, 444

U.S. 277 (1980), where it upheld a California statute

granting officials immunity from certain types of

state tort claims. We acknowledged that the grant of

immunity arguably did deprive the plaintiffs of a

protected property interest. But they were not

thereby deprived of property without due process,

just as a welfare recipient is not deprived of due pro-

cess when the legislature adjusts benefit levels. In

each case, the legislative determination provides all

the process that is due.

Id. at 432-33 (some citations omitted) (emphasis added).

[17] Here, the PLCAA does not impose a procedural limita-

tion; rather, it creates a substantive rule of law granting

immunity to certain parties against certain types of claims. In

such a case, “the legislative determination provides all the

ILETO v. GLOCK 5577

process that is due.” Id. at 433. On the substantive question

created by the PLCAA—whether this case meets the defini-

tion of a “qualified civil liability action"—Plaintiffs were, of

course, afforded an ample hearing before the district court.

We therefore hold that the PLCAA did not violate Plaintiffs’

procedural due process rights. See also District of Columbia,

940 A.2d at 177 (“[W]e hold that while the plaintiffs’ cause

of action . . . ‘is a species of property protected by . . . [d]ue

process,’ they received ‘all the process that is due’ when Con-

gress barred pending actions such as theirs from proceeding

as a rational means ‘to give comprehensive effect to a new

law that it considered salutary.’ ” (quoting Logan, 455 U.S. at

428; Landgraf, 511 U.S. at 268) (brackets omitted)).

[18] In conclusion, like all other appellate courts to have

addressed the issue, we hold that the PLCAA is constitutional.

4. Constitutional Avoidance

[19] We respond briefly to the thoughtful views of our dis-

senting colleague on the topic of constitutional avoidance.

That doctrine does not apply where, as here, congressional

intent is clear from the text and purpose of the statute. See

supra note 8 (quoting Boumediene, 128 S. Ct. at 2271).

Because the dissent’s alternative interpretation of the PLCAA

rests entirely on the doctrine, we explain below why the doc-

trine would not apply, even if congressional intent were not

clear from the text and purpose of the statute.

We begin with the scope of the doctrine. In Edward J.

DeBartolo Corp. v. Florida Gulf Coast Building & Construc-

tion Trades Council, the Supreme Court stated that, “where an

otherwise acceptable construction of a statute would raise

serious constitutional problems, the Court will construe the

statute to avoid such problems unless such construction is

plainly contrary to the intent of Congress.” 485 U.S. 568, 575

(1988) (emphasis added); see also Clark v. Martinez, 543

U.S. 371, 381 (2005) (describing the doctrine as “a tool for

5578 ILETO v. GLOCK

choosing between competing plausible interpretations of a

statutory text, resting on the reasonable presumption that Con-

gress did not intend the alternative which raises serious con-

stitutional doubts” (emphasis added)). As the Court has

instructed, we may invoke the doctrine only if we have “grave

doubts” about the constitutionality of the statute. Almendarez-

Torres v. United States, 523 U.S. 224, 237-38 (1998) (quoting

United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916)); see

also id. at 238 (“[T]hose who invoke the doctrine must

believe that the alternative is a serious likelihood that the stat-

ute will be held unconstitutional.” (emphasis added)).

We have no grave doubts here. The dissent does not, and

cannot, point to a single case in which we, the Supreme Court,

or any sister circuit has held that a federal statute violates sub-

stantive due process for the reasons asserted by Plaintiffs.

And, as discussed above, we have upheld against constitu-

tional challenges many statutes with characteristics nearly

identical to those of the PLCAA.

The dissent bypasses those important and indisputable facts

in the following way. First, it argues that the Supreme Court

has never addressed the precise issue at hand: whether Con-

gress may abolish pending common-law claims11 without pro-

viding any alternative means of redress. Second, the dissent

argues that the Supreme Court has suggested that this issue

would raise serious constitutional questions. We disagree on

both counts.

First, the PLCAA does not completely abolish Plaintiffs’

ability to seek redress. The PLCAA preempts certain catego-

ries of claims that meet specified requirements, but it also

carves out several significant exceptions to that general rule.

Some claims are preempted, but many are not. Indeed, as we

11

Plaintiffs bring statutory, not common-law claims; as we have recog-

nized above, however, the relevant California statutes essentially codify

state common law.

ILETO v. GLOCK 5579

hold below, Plaintiffs may proceed on their claims against

Defendant China North. Plaintiffs’ ability to seek redress has

been limited, but not abolished.12

Second, we do not doubt the constitutionality of the

PLCAA, let alone have “grave doubts.” As discussed above,

no decision by us, the Supreme Court, or any sister circuit has

held that a statute violates substantive due process for the rea-

sons asserted by Plaintiffs. To the contrary, scores of cases

concerning very similar statutes have held that the statutes do

not violate substantive due process principles.

The dissent finds, in a small number of sources, hints that

there could be a lurking, serious constitutional question. Jus-

tice Marshall stated in a concurrence that he would adopt a

more searching review, see PruneYard Shopping Ctr. v. Rob-

ins, 447 U.S. 74, 93-94 (1980) (Marshall, J., concurring), and

Justice White stated in a dissent from dismissal of certiorari

that he would prefer to address the issue, see Fein v. Perma-

nente Med. Group, 474 U.S. 892, 894-95 (1985) (White, J.,

dissenting from dismissal of certiorari). Dissent at 5597-98.

Those comments do not raise a serious constitutional ques-

tion. The doctrine of constitutional avoidance requires “grave

doubts,” not occasional statements by a justice or two.

More importantly, the dissent quotes majority opinions in

12

Furthermore, as the dissent recognizes, dissent at 5619, its proffered

interpretation of the PLCAA would raise the same constitutional concern.

The dissent would require a plaintiff to allege and prove a “knowing” stat-

utory violation, even though that requirement introduces a new, or more

difficult, element for the plaintiff to prove. Dissent at 5620. That interpre-

tation, however, also “abolishes” common-law remedies for a large class

of plaintiffs, because certain claims that were cognizable before the enact-

ment of the PLCAA would no longer be cognizable. Whatever the bound-

aries of the constitutional avoidance doctrine, its point is to adopt an

alternative interpretation of the statute that avoids any constitutional prob-

lem, whereas the dissent’s alternative still raises the identical issue in a

slightly different form.

5580 ILETO v. GLOCK

two cases: N.Y. Cent. R.R. Co. v. White, 243 U.S. 188, 201

(1917); and Duke Power Co. v. Carolina Envtl. Study Group,

Inc., 438 U.S. 59, 88 (1978). Dissent at 5597-98. But those

sources do not demonstrate a serious constitutional question

either. In White, the Court expressed concern about whether

“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 employer and employee,

without providing a reasonably just substitute.” 243 U.S. at

201 (emphasis added). That dictum is inapposite. The PLCAA

contains numerous exceptions and comes nowhere near set-

ting aside all common-law rules concerning firearm manufac-

turers.

The dissent’s reliance on Duke Power is even less persua-

sive. There, the Court reiterated that it was an open question

whether a legislature may abolish a common-law recovery

scheme without providing a reasonable substitute remedy.

Duke Power, 438 U.S. at 88. As we have repeatedly noted,

here Congress has left in place a number of substitute reme-

dies.

For these reasons, we decline to apply the doctrine of con-

stitutional avoidance.

C. Preemption of Claims Against Defendant China North

Finally, we address Defendant China North’s interlocutory

appeal from the district court’s order holding that the PLCAA

does not preempt Plaintiffs’ claims against it. We return to the

text of the PLCAA, which preempts

a civil action or proceeding or an administrative pro-

ceeding brought by any person against a manufac-

turer or seller of a qualified product, or a trade

association, for damages, punitive damages, injunc-

tive or declaratory relief, abatement, restitution,

fines, or penalties, or other relief, resulting from the

ILETO v. GLOCK 5581

criminal or unlawful misuse of a qualified product

by the person or a third party, but shall not include

[specified enumerated exceptions.]

15 U.S.C. § 7903(5)(A) (emphasis added). Again, we agree

with the parties that this case is a “civil action” brought by a

“person” for damages and other relief to redress harm, “result-

ing from the criminal . . . misuse of a qualified product by . . .

a third party.” Id. The parties dispute, however, whether the

case is “brought . . . against a manufacturer or seller of a qual-

ified product.” Id.

[20] In Ileto I, 349 F.3d at 1215, we held that Plaintiffs’

claims against Defendant China North stated a claim under

California law because of China North’s status as a manufac-

turer and seller of firearms. The PLCAA preempts only

actions brought against federally licensed manufacturers and

sellers of firearms. See id. § 7903(2) (defining the term “man-

ufacturer”); id. § 7903(6) (defining the term “seller”).13 China

13

The full text of those provisions states:

The term “manufacturer” means, with respect to a qualified

product, a person who is engaged in the business of manufactur-

ing the product in interstate or foreign commerce and who is

licensed to engage in business as such a manufacturer under [fed-

eral law].

15 U.S.C. § 7903(2).

The term “seller” means, with respect to a qualified product—

(A) an importer (as defined in section 921(a)(9) of Title 18)

who is engaged in the business as such an importer in interstate

or foreign commerce and who is licensed to engage in business

as such an importer under [federal law];

(B) a dealer (as defined in section 921(a)(11) of Title 18) who

is engaged in the business as such a dealer in interstate or foreign

commerce and who is licensed to engage in business as such a

dealer under [federal law]; or

(C) a person engaged in the business of selling ammunition (as

defined in section 921(a)(17)(A) of Title 18) in interstate or for-

eign commerce at the wholesale or retail level.

Id. § 7903(6).

5582 ILETO v. GLOCK

North concedes that it is not a federally licensed manufacturer

or seller of firearms. It follows, then, that the PLCAA does

not preempt Plaintiffs’ claims against China North.

To escape this straightforward reasoning, China North

points out that the PLCAA preempts more than actions

brought against federally licensed manufacturers and sellers

of firearms. The PLCAA also preempts actions brought

against all sellers of ammunition. Id. § 7903(6)(C). China

North argues that, because it is a seller of ammunition, the

PLCAA preempts Plaintiffs’ claims, notwithstanding the fact

that Plaintiffs’ claims concern only China North’s actions as

a manufacturer and seller of firearms and have nothing to do

with China North’s coincidental status as a seller of ammuni-

tion. We are unpersuaded.

The PLCAA preempts specified types of liability actions;

it does not provide a blanket protection to specified types of

defendants. See id. § 7902(a) (“A qualified civil liability

action may not be brought in any Federal or State court.”).

Furthermore, Congress chose to preempt certain actions

brought against manufacturers and sellers of firearms, but

explicitly limited the preemptive effect to those manufacturers

and sellers who are federally licensed. China North’s reading

of the statute would eviscerate that limitation when, as here,

the defendant also happens to be a seller of ammunition.

China North argues that, had Congress intended a nexus

between the basis of the allegations and the nature of the

defendant’s business, it would have modified the term “quali-

fied product” with the definite article “the,” instead of the

indefinite article “a.” The scope of preempted actions thereby

would encompass

a civil action or proceeding or an administrative pro-

ceeding brought by any person against a manufac-

turer or seller of a qualified product, or a trade

association, for damages, punitive damages, injunc-

ILETO v. GLOCK 5583

tive or declaratory relief, abatement, restitution,

fines, or penalties, or other relief, resulting from the

criminal or unlawful misuse of [the] qualified prod-

uct by the person or a third party.

15 U.S.C. § 7903(5)(A). We grant that China North’s alter-

ation arguably is more clear but, without more, we are not

persuaded on that basis alone that Congress intended to undo

the logical reading of the statute as requiring a nexus between

the basis of the allegations and the nature of the defendant’s

business. Plaintiffs’ claims concern the manufacture and sale

of firearms; we cannot conclude that those claims are pre-

empted simply because China North also happens to sell

ammunition.

[21] We therefore affirm the district court’s holding that the

PLCAA does not preempt Plaintiffs’ claims against China

North, and we remand for further proceedings.

CONCLUSION

We sympathize with Plaintiffs, who suffered grievous

harm, that Congress preempted some of their claims. Never-

theless, the Constitution “allocates to Congress responsibility

for [such] fundamental policy judgments.” Landgraf, 511

U.S. at 273. Finding no constitutional flaw, we affirm the dis-

trict court’s holding that the PLCAA applies to Plaintiffs’

claims against Defendants Glock and RSR. We also affirm the

district court’s holding that the PLCAA does not apply to

Plaintiffs’ claims against Defendant China North because,

lacking a federal firearms license, it cannot seek haven under

the PLCAA.

No. 06-56872: AFFIRMED. Costs on appeal awarded to

Defendants-Appellees Glock and RSR.

Nos. 07-15403 & 07-15404: AFFIRMED and

REMANDED for further proceedings. Costs on appeal

awarded to Plaintiffs-Appellants.

ILETO v. GLOCK 5585

Volume 2 of 2

ILETO v. GLOCK 5591

BERZON, Circuit Judge, concurring in part and dissenting in

part:

I agree with the majority that the language of the PLCAA’s

predicate exception is ambiguous. The interpretation on which

the majority ultimately settles, however, requires deciding

what I consider to be a substantial constitutional question:

whether, if the PLCAA requires the dismissal of Plaintiffs’

pending state causes of action, the statute will unconstitution-

ally deprive them of a protected property interest.

The majority resolves this question by concluding that the

PLCAA’s mandatory dismissal provision is rationally related

to a legitimate government interest and that no heightened

level of constitutional scrutiny is warranted. The majority’s

cursory discussion of the constitutional issue belies the

sweeping nature of what it reads the PLCAA to do, and the

difficult questions of constitutional law required to uphold

that reading. Neither the Supreme Court nor this Circuit has

ever made clear that rational basis review is the proper stan-

dard on which to review a federal statute that retroactively

requires the dismissal of pending causes of action for injuries

cognizable at common law but does not leave any alternative

means of redress. Moreover, even if we were to assume that

no heightened level of scrutiny is appropriate, I am not con-

vinced that such a statute would survive the rational basis

review outlined by the Supreme Court in Duke Power Co. v.

Carolina Envtl. Study Group, 438 U.S. 59 (1978).

The majority tacitly breaks new ground in deciding these

questions. It need not — and should not — do so. The canon

of constitutional avoidance counsels that we should “construe

the statute to avoid [serious constitutional questions] unless

such a construction is plainly contrary to the intent of Con-

gress.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg.

& Constr. Trades Council, 485 U.S. 568, 575 (1983); see also

Clark v. Martinez, 543 U.S. 371, 380-81 (2005); NLRB v.

Catholic Bishop of Chicago, 440 U.S. 490, 507 (1979). In

5592 ILETO v. GLOCK

accordance with that maxim, I would adopt a different, but in

my view equally supportable, reading of the ambiguous statu-

tory language, which would permit the Plaintiffs’ suit as

against Defendants Glock and RSR (“Defendants”) to go for-

ward. I therefore respectfully dissent from the majority’s dis-

cussion of Plaintiffs’ substantive due process challenge, as I

would not decide the question, and from its holding that their

lawsuit does not come within the PLCAA’s predicate excep-

tion.

I.

A.

Plaintiffs have raised a number of constitutional challenges.

The one that concerns me here is their substantive due process

argument. Before I explain why their challenge presents a

serious constitutional question, I think it useful, as a prelimi-

nary matter, to identify the property interest on which Plain-

tiffs contend the PLCAA intrudes. See Wedges/Ledges of

Cal., Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994).

Generally speaking, if a plaintiff alleges that a fundamental

right is burdened by a state action, the state action is subject

to strict scrutiny and cannot stand unless it is “narrowly tai-

lored to serve a compelling state interest.” Washington v.

Glucksberg, 521 U.S. 702, 721 (1997) (internal quotation

marks omitted). If a lesser liberty or property interest is at

stake, the state action is subject to rational basis review,

which requires “a reasonable relation to a legitimate state

interest.” Id. at 722. Various forms of intermediate scrutiny,

in between these two poles, have sometimes been found appli-

cable. See Hutchins v. District of Columbia, 188 F.3d 531,

563 & n.24 (D.C. Cir. 1999) (Rogers, J., concurring in part)

(collecting cases).

Plaintiffs here have asserted a property interest in maintain-

ing their pending state-law causes of action. They acknowl-

ILETO v. GLOCK 5593

edge that the monetary award those causes of action might

ultimately yield if they proceeded to a final judgment is

uncertain, so they currently have no enforceable right to any

particular amount of damages. But, they assert, the PLCAA

also trenches on a separate and independently valuable inter-

est: their interest in maintaining their causes of action prior to

judgment and not having them dismissed.

The majority implicitly agrees with Plaintiffs’ position that

this interest is cognizable and protected by the Due Process

Clause. This much is clear, because the majority applies ratio-

nal basis review. If Plaintiffs’ interest were wholly unpro-

tected, no scrutiny, rational basis or otherwise, would be

required.

I pause to emphasize this point, because the majority then

goes on to make a potentially misleading statement: that

Plaintiffs have no “vested property right in their accrued state-

law causes of action.” Maj. Op. at 5574. What the majority

appears to mean is that Plaintiffs have not stated a fundamen-

tal property interest deserving of heightened scrutiny. I do not

understand the majority to mean that Plaintiffs have no prop-

erty interest in their causes of action at all. If that were what

the majority meant, it would be quite wrong. Like stocks or

business operating licenses, the probable value of a plaintiff’s

cause of action may fluctuate over time — here, between fil-

ing and the entry of judgment — but such fluctuations do not

mean that the cause of action is without value.1 Plaintiffs have

expended time and money to maintain their lawsuit, and, if

1

Stock ownership creates a property interest, even though the value of

stock is uncertain until the moment it is sold. See Western Pac. R.R. Corp.

v. Western Pac. R.R. Co., 197 F.2d 994, 1008 (9th Cir. 1952), rev’d on

other grounds, 345 U.S. 247 (1953). Similarly, a state operating license

(such as a liquor license) that has been granted and can be revoked only

“for cause” creates a cognizable property interest, even though the ulti-

mate worth of that license, in terms of how much of a profit the licensee

will earn in a year by operating under it, is uncertain. See Barry v. Barchi,

443 U.S. 55, 64 (1979). And pending causes of action qualify as “prop-

erty of the estate” in bankruptcy under 11 U.S.C. § 541(a)(1) — including

causes of action sounding in tort, such as personal injury, for which the

ultimate amount of recovery is uncertain. See, e.g., In re Arnold, 252 B.R.

778 (9th Cir. BAP 2000); Sierra Switchboard Co. v. Westinghouse Elec.

Corp., 789 F.2d 705, 707-09 (9th Cir. 1986).

5594 ILETO v. GLOCK

they were so inclined, they could have “sold” their causes of

action to defendants by settling for a sum of money reflecting

the expected recovery at that point in the litigation.2 A pend-

ing cause of action, therefore, may be more or less valuable

at various points during its pendency, but, even before it is

reduced to a final dollar amount, it is a “species of property

protected by the . . . Due Process Clause,” as the Supreme

Court held in Logan v. Zimmerman Brush Co., 455 U.S. 422,

428 (1982) (citations omitted).

I therefore read the majority’s statement that Plaintiffs lack

a “vested property right in their accrued state-law causes of

action,” Maj. Op. at 5574, to indicate the majority’s view that

although there is a protected property interest at stake, it is not

a fundamental right, so rational basis review, rather than strict

scrutiny, is sufficient. This usage, though odd, appears to be

consistent with our case law. Lyon v. Agusta S.P.A., 252 F.3d

1078 (9th Cir. 2001), for example, stated that “a party’s prop-

erty right in any cause of action does not vest until a final

unreviewable judgment is obtained,” id. at 1086 (internal quo-

tation marks and emphasis omitted), but it also assumed that

a statute depriving the party of the ability to litigate that cause

of action must nevertheless withstand rational basis review.

See id. (“Of course, the legislature must act in a rational man-

ner; that almost goes without saying. Here the choice was

assuredly rational.”) (internal citations omitted). Accord Duke

Power, 438 U.S. at 88 n.32 (stating that “[a] person has no

property, no vested interest, in any rule of the common law,”

but applying rational basis review to federal statute precluding

2

Additionally, California law designates certain civil actions as “choses

in action,” which may be assigned to third parties while they are still pend-

ing. See Cal. Civ. Code Sec. 954 (tort actions for damage to personal prop-

erty are assignable). Although apparently not applicable to Plaintiffs’

causes of action in this case, see Pony v. County of Los Angeles, 433 F.3d

1138, 1143 (9th Cir. 2006) (tort actions for personal injury are typically

not assignable under California law), the “chose in action” concept further

underscores the fact that pending causes of action generally have value

prior to judgment.

ILETO v. GLOCK 5595

suit) (internal quotation marks and citation omitted); Fields v.

Legacy Health Sys., 413 F.3d 943, 955-56 (9th Cir. 2005)

(upholding statute against substantive due process challenge

on rational basis review; recognizing a distinction between

vested and non-vested property rights only in the context of

petitioner’s procedural due process claim).3

B.

If this case were directly controlled by the case law just

cited, I would agree that rational basis review is the proper

level of scrutiny to apply here. And if the PLCAA were indis-

tinguishable from the statutes at issue in Lyon, Duke Power,

Fields and Austin, I would be constrained to hold that the

3

The majority also cites Austin v. City of Bisbee, 855 F.2d 1429 (9th

Cir. 1988), as supporting its constitutional holding. Austin is confusing. It

states first that “[a] cause of action is a species of property protected by

the Fourteenth Amendment’s Due Process Clause,” id. at 1435 (internal

quotation marks omitted), then that a pending cause of action is “inchoate

and affords no definite or enforceable property right until reduced to final

judgment,” id. at 1436 (citation omitted), and finally that “[e]ven if Austin

had a cognizable property right to overtime compensation, his claim fails

on due process grounds.” Id. If the middle one of these statements is read

as indicating that even rational basis scrutiny is inapplicable, it would be

clearly at odds with Duke Power, which identifies rational basis as the

appropriate level of review for such a deprivation. It would also be incon-

sistent with the very case Austin cites as support: In re Consolidated U.S.

Atmospheric Testing Litigation, 820 F.2d 982, 988-89 (9th Cir. 1987),

which adopted the First Circuit’s analysis in Hammond v. United States,

786 F.2d 8 (1st Cir. 1986). Both Atmospheric Testing and Hammond,

despite their observation that one has no “vested” interest in a pending

cause of action, apply rational basis review to the deprivation of that inter-

est. See Atmospheric Testing, 820 F.2d at 990; Hammond, 786 F.2d at 12-

13. (The First Circuit recently clarified that Hammond does not stand for

the proposition that a litigant has no protected interest in a cause of action

prior to the entry of judgment; if it did, it would be “squarely in tension

with the Supreme Court’s recognition in Logan that a cause of action is

a protected property interest.” See Dr. Jose S. Belaval, Inc. v. Perez-

Perdomo, 465 F.3d 33, 37 n.4 (1st Cir. 2006).) I therefore do not read the

opaque line in Austin as anything other than a factual statement about the

nature of a pending cause of action.

5596 ILETO v. GLOCK

PLCAA’s intrusion on Plaintiffs’ interest survives rational

basis review.

But the PLCAA is unlike those other statutes in critical

respects. We have never upheld against substantive due pro-

cess attack a federal statute with precisely the PLCAA’s con-

stellation of characteristics: (1) It completely extinguishes an

individual litigant’s ability to litigate a cause of action, rather

than limiting the amount of recovery or the procedure for

bringing suit, and it leaves no alternative channel by which

the individual may address his injury; and (2) the individual’s

cause of action is for an injury that would be cognizable under

state common law, and it was filed and pending at the time

of the federal statute’s enactment.4 To hold such a statute con-

4

All the cases on which the majority relies are distinguishable on one

or more of these grounds.

Lyon involved a challenge to the General Aviation Revitalization Act’s

statute of repose, which barred any “civil action” against a manufacturer

if the accident occurred more than eighteen years after the aircraft was

delivered to the purchaser. See 252 F.3d at 1081. The statute did not com-

pletely extinguish litigants’ rights to sue in tort, but only limited the win-

dow in which such causes of action could be filed. The Lyon plaintiffs had

not yet filed an action at the time of the statute’s passage. See id.

Austin involved a challenge to an amendment of the Fair Labor Stan-

dards Act that barred recovery of unpaid overtime wages accrued prior to

1986. See 855 F.2d at 1431. The amendment did not abrogate state tort

law; rather, it curtailed a statutorily-created cause of action. See id. at 1436

(“Property rights to public benefits are defined by the statutes or customs

that create the benefits. When, as here, the statute authorizing the benefits

is amended or repealed, the property right disappears.”) (internal quotation

marks omitted).

Fields involved a challenge to Oregon’s statute of limitations for

wrongful death suits and its statute of repose for medical malpractice suits.

The state provisions did not extinguish individuals’ ability to sue entirely,

but only narrowed the temporal window in which suits could be filed. See

413 F.3d at 956-57. Moreover, Fields noted that the plaintiffs’ “right of

action for wrongful death is purely statutory and . . . in Oregon there was

no right of action for wrongful death at common law.” Id. at 959. In addi-

tion, Oregon’s statutes of limitation and repose were enacted long before

ILETO v. GLOCK 5597

stitutional on rational basis review, despite the absence of any

provision for alternative forms of redress, is to step onto new

and uncertain constitutional territory.

In general, the majority is correct that Congress may limit

or abrogate rights recognized at common law when enacting

legislation “adjusting the burdens and benefits of economic

life,” so long as the abrogation is rationally related to a per-

missible goal. Usery v. Turner Elkhorn Mining Co., 428 U.S.

1, 15 (1976). It is not clear from past case law, however,

whether rational basis review is the appropriate level of scru-

tiny for a statute that abrogates common-law remedies without

providing or leaving open a substitute remedial scheme.

In fact, the Supreme Court as a whole and individual Jus-

tices of the Court have repeatedly recognized that “[q]uite

serious constitutional questions might be raised if a legislature

attempted to abolish certain categories of common-law rights

in some general way.” PruneYard Shopping Ctr. v. Robins,

447 U.S. 74, 93-94 (1980) (Marshall, J, concurring). See also

New York Central R.R. Co. v. White, 243 U.S. 188, 201

(1917) (expressing uncertainty as to whether “a state might,

without violence to the constitutional guaranty of ‘due process

Fields filed his suit. See id. at 949; see also Or. Rev. Stat. §§ 30.020(1)

(statute of limitations), 12.110(4) (statute of repose).

Duke Power involved a challenge to the Price-Anderson Act, which

limited federally licensed nuclear facilities’ accident liability to $560 mil-

lion. See 438 U.S. at 66-67. The Act did not abrogate state tort remedies,

but only imposed a federal limit on the maximum amount of recovery

plaintiffs could obtain. The Act also provided for cost-sharing among

nuclear operators and the mandatory waiver of defenses in case of an acci-

dent, id. which the Court held was a “reasonably just substitute for the

[status quo at] common-law[.]” Id. at 88. The plaintiffs, who lived close

to planned nuclear facilities, had not filed any cause of action at the time

of the Price-Anderson Act’s passage; rather, they sought a declaratory

judgment that the Act was unconstitutional, premised on the prospective

due process violation they would suffer should a nuclear accident occur.

Id. at 67-70.

5598 ILETO v. GLOCK

of law,’ suddenly set aside all common-law rules respecting

liability as between employer and employee, without provid-

ing a reasonably just substitute”). To date, the Supreme Court

has never decided what level of constitutional scrutiny applies

to a statute that abrogates a common-law cause of action and

leaves no alternative remedy available. Dissenting from the

dismissal of certiorari in a case that would have presented this

question squarely, Justice White noted:

Whether due process requires a legislatively enacted

compensation scheme to be a quid pro quo for the

common-law or state-law remedy it replaces, and if

so, how adequate it must be, . . . appears to be an

issue unresolved by this Court, and one which is

dividing the appellate and highest courts of several

States.

Fein v. Permanente Med. Group, 474 U.S. 892, 894-95

(1985) (White, J., dissenting from dismissal of certiorari).

This same question was expressly left unresolved in Duke

Power, which declined to decide what constitutional test

would apply to a statute that left no alternative remedies avail-

able:

Initially, it 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. However, we need not resolve this question

here since the Price-Anderson Act does, in our view,

provide a reasonably just substitute for the common-

law or state tort law remedies it replaces.

438 U.S. at 88 (footnote omitted).

Following Duke Power’s lead, when this Circuit confronted

a substantive due process challenge to a portion of the Atomic

Energy Act abolishing individuals’ ability to sue certain gov-

ILETO v. GLOCK 5599

ernment contractors for injuries recognized at state common

law in Atmospheric Testing, it upheld the Act on rational basis

review only in conjunction with the observation that substitute

remedies — both the Federal Tort Claims Act and veterans

benefits legislation — were available to compensate the

would-be plaintiffs for the unavailability of personal injury

and wrongful death suits. See Atmospheric Testing, 820 F.2d

at 990-91.5 Other courts of appeal have done the same. See,

e.g., Hammond, 786 F.2d at 14 (noting that, in addition to the

Federal Tort Claims Act’s administrative scheme, “there may

be government compensation available to many of those

injured by radiation, including the plaintiff here, under veter-

ans benefits legislation, . . . or the [Federal Employees Com-

pensation Act].”); Ducharme v. Merrill-Nat’l Labs., 574 F.2d

1307, 1309 (5th Cir. 1978) (upholding the Swine Flu Act’s

prohibition on tort suits against private manufacturers of

swine flu vaccine, but also noting that “[t]he [substitute] cause

of action provided by the Swine Flu Act to an injured person

against the United States is substantially the same as that

afforded . . . under [Louisiana law] except that under the

Swine Flu Act no trial by jury is afforded and the plaintiff is

required to seek first administrative review of his claim.”)

Just as the federal courts are reluctant to construe a statute

as abolishing common-law rules without providing some

alternative method of redress, so Congress is reluctant to pass

legislation immunizing a private industry from common-law

tort liability — for example, when that industry is acting in

concert with a governmental program or playing a vital role

5

Kyle Rys., Inc. v. Pacific Admin. Servs., Inc., 990 F.2d 513 (9th Cir.

1993), is not to the contrary. The plaintiff in Kyle had not filed a state

claim for unjust enrichment at the time of ERISA’s passage, so the prop-

erty interest he was asserting was an interest in bringing a lawsuit, not in

maintaining a pending one. Kyle, 990 F.2d at 518-19. Additionally,

although ERISA did not furnish Kyle with a replacement federal cause of

action, id. at 519, it does provide certain “quid pro quos” to individuals

covered by employee benefit plans. The PLCAA, in contrast, provides

nothing but a “gap in the law.” Id.

5600 ILETO v. GLOCK

in the nation’s economy or defense — without preserving

state tort law as a parallel track or providing some alternative

mechanism to compensate injured parties.6 Similarly, the

Supreme Court has sometimes declined to read federal stat-

utes as extinguishing the availability of state tort causes of

action in preemption cases — even where no due process

argument was advanced by the parties — when the statute

lacks a clear statement that Congress intended to do so. See,

e.g., Wyeth v. Levine, 129 S.Ct. 1187, 1200 (2009); Sprietsma

v. Mercury Marine, 537 U.S. 51, 64 (2002).

The statute at issue here is different. As interpreted by the

majority, the PLCAA retroactively extinguishes Plaintiffs’

pending state tort causes of action, and it leaves them without

any remedy for the injuries they claim they have suffered due

to Defendants’ unlawful acts. No controlling case law estab-

lishes that such legislation survives constitutional scrutiny.

Rather, the cases canvassed above suggest that at least a mod-

ified form of rational basis review, and perhaps a more

searching type of review, may be warranted for such a statute.

More specifically, if one applied to a statute abolishing

pending common-law causes of action and providing no alter-

6

Consider, for example, the National Childhood Vaccine Injury Act, 42

U.S.C. §§ 300aa-1 et seq., which provides a no-fault compensation

scheme as an alternative to tort law, see Schafer v. American Cyanamid

Co., 20 F.3d 1, 1-2 (1st Cir. 1994); and the Air Transportation Safety and

System Stabilization Act, 49 U.S.C. §§ 40101 et seq., which creates a

compensation fund and provides “an exclusive federal cause of action for

. . . claims [arising out of the September 11, 2001, airplane crashes] to be

brought in the Southern District of New York, and adjudicated on the

basis of applicable state law.” Benzman v. Whitman, 523 F.3d 119, 126

(2d Cir. 2008) (internal citations omitted). But see FISA Amendments Act

of 2008, § 802, 122 Stat. 2436, Pub. L. No. 110-261 (July 10, 2008) (pro-

viding that a “civil action . . . in a Federal or State court” arising out of

an individual or telephone company’s cooperation with the government’s

counter-terrorism wiretap program “shall be promptly dismissed” upon the

Attorney General’s certification). No federal court has yet considered

whether the FISA Amendments Act violates due process.

ILETO v. GLOCK 5601

native remedy a test no more searching than the rational basis

review applied to the Price-Anderson Act in Duke Power, it

is possible that such a statute would be held to violate due

process. Duke Power inquired whether “the legislature has

acted in an arbitrary and irrational way,” 438 U.S. at 84 (quot-

ing Usery, 428 U.S. at 15), but, as part of its “arbitrary and

irrational” inquiry, engaged in a lengthy examination of the

Price-Anderson Act, taking into consideration among other

things that the Act provided a compensation scheme that was

a “reasonably just substitute” to the common law, id. at 88,

and perhaps even an improvement on the common law.7 In

other words, the availability and effectiveness of alternative

remedies was a factor in determining whether Congress had

acted rationally or not. Thus, Duke Power applied a modified

rational basis test, not unlike the due process test applied in

cases involving retroactive legislation. See Pension Benefit

Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 729 (1984)

(economic legislation that Congress plainly intends to have

retroactive effect must not only be rationally related to a legit-

imate state interest as a general matter, but there must also be

a rational basis for its retroactive application). Duke Power

suggests that, at a minimum, a modified rational basis test

would apply here, rendering the PLCAA constitutional only

if there were rational bases both for Congress’s failure to sup-

ply any alternative remedies and for its decision to apply the

7

See id. at 90-92 (“We view the congressional assurance of a $560 mil-

lion fund for recovery, accompanied by an express statutory commit-

ment[ ] to take whatever action is deemed necessary and appropriate to

protect the public from the consequences of a nuclear accident, to be a fair

and reasonable substitute for the uncertain recovery of damages of this

magnitude from a utility or component manufacturer, whose resources

might well be exhausted at an early stage . . . . Nor are we persuaded that

the mandatory waiver of defenses required by the Act is of no benefit to

potential claimants . . . . All of these considerations belie the suggestion

that the Act leaves the potential victims of a nuclear disaster in a more dis-

advantageous position than they would be in if left to their common-law

remedies — not known in modern times for either their speed or econo-

my.”) (internal citations omitted).

5602 ILETO v. GLOCK

dismissal provision retroactively to extinguish the remedies

for common-law injuries that had already occurred and were

the subject of pending litigation.8

Alternatively, Duke Power leaves open the possibility that

where the challenged statute leaves no alternative remedy

available, the statute should be subject not to rational basis

review but to a heightened form of scrutiny. See Duke Power,

438 U.S. at 88. Concurring in PruneYard, which upheld a

California state constitutional limitation on the availability of

private trespass claims against peaceful leafletters, Justice

Marshall agreed that states may alter the protection of the

common law to a point, but he emphasized:

I do not understand the Court to suggest that rights

of property are to be defined solely by state law, or

that there is no federal constitutional barrier to the

abrogation of common-law rights by Congress or a

state government. The constitutional terms “life, lib-

erty, and property” do not derive their meaning

solely from the provisions of positive law. They

have a normative dimension as well, establishing a

sphere of private autonomy which government is

bound to respect. Quite serious constitutional ques-

tions might be raised if a legislature attempted to

abolish certain categories of common-law rights in

some general way. Indeed, our cases demonstrate

that there are limits on governmental authority to

abolish “core” common-law rights, including rights

8

Of course, as rational basis review does not require that legislation be

the least restrictive means of achieving Congress’s ends, the alternative

remedy would not need to be an equally good substitute for the tort rem-

edy it displaced. See Atmospheric Testing, 820 F.2d at 991 (acknowledg-

ing that “Congress could have . . . [achieved its goal of protecting

independent government contractors from suit] and still provided those

injured by radiation a more generous substitute compensation scheme,”

but concluding that “we cannot say that Congress’[s] choice of means was

without any rational basis.”) (internal quotation marks omitted).

ILETO v. GLOCK 5603

against trespass, at least without a compelling show-

ing of necessity or a provision for a reasonable alter-

native remedy.

PruneYard, 447 U.S. at 93 (Marshall, J., concurring) (footnote

omitted; emphases added). In other words, even though no

one has a protected property interest in any particular rule of

the common law “entitling him to insist that it shall remain

unchanged for his benefit,” White, 243 U.S. at 198, an indi-

vidual does have a weighty property interest in having some

legal means available to redress an injury that would have

been compensable at common law. Justice Marshall’s concur-

rence in PruneYard suggests this interest may be so weighty

as to require not merely a rational relation to a legitimate gov-

ernmental interest, but a “compelling showing of necessity”

— a heightened form of scrutiny. PruneYard, 447 U.S. at 93

(Marshall, J., concurring).

C.

I will not venture further into this unsettled constitutional

territory. For purposes of the avoidance canon, it is sufficient

to determine that a serious constitutional question exists, and

the case law I have just canvassed demonstrates that this is so.

Clark, 543 U.S. at 381. The majority disagrees, noting that

“[t]he dissent does not, and cannot, point to a single case in

which we, the Supreme Court, or any sister circuit has held

that a federal statute violates substantive due process for the

reasons asserted by Plaintiffs.” Maj. Op. at 5578. But that is

precisely the point of the constitutional avoidance canon — to

avoid open questions. As I have explained, the Supreme Court

in Duke Power expressly left open the question whether “the

Due Process Clause . . . requires that a legislatively enacted

compensation scheme either duplicate the recovery at com-

mon law or provide a reasonable substitute remedy.” Duke

Power, 438 U.S. at 88. See also PruneYard, 447 U.S. at 93

(Marshall, J., concurring) (noting that the question whether

Congress can constitutionally “abolish certain categories of

5604 ILETO v. GLOCK

common-law rights in some general way . . . without a com-

pelling showing of necessity or a provision for a reasonable

alternative remedy” is unresolved). Nor has this Court ever

upheld against constitutional challenge a statute with the same

sweepingly preclusive effect on state tort remedies as the

majority reads the PLCAA to have.9 Precisely because we

have no precedent to follow in resolving Plaintiffs’ substan-

tive due process challenge, we should not do so if we can

avoid it.

I therefore cannot join the majority in rejecting on the mer-

its Plaintiffs’ substantive due process challenge. The applica-

ble case law does not compel the majority’s conclusions that,

applying rational basis review, the PLCAA survives review.

Nor does it foreclose the possibility that a focused form of

rational basis review, taking special account of the retroactiv-

ity feature and the lack of any alternative means of redress, or,

even, heightened scrutiny applies. Reading the PLCAA to

extinguish Plaintiffs’ claims without providing any alternative

scheme for compensation thus raises serious constitutional

questions that neither we nor the Supreme Court have

resolved. I do not know how I would resolve these questions

if they were unavoidably before me, but I am certain that they

are more serious and complex than the majority’s brief treat-

ment suggests.

II.

Given my view of the constitutional issue in this case, I am

constrained to apply the venerable maxim of statutory inter-

pretation prescribing that where ambiguous statutory language

9

The majority asserts that “scores of cases concerning very similar stat-

utes have held that the statutes do not violate substantive due process prin-

ciples,” Maj. Op. at 5579, but it cites to none. As I have shown above,

supra note 4, each of the cases on which the majority relies in rejecting

Plaintiffs’ substantive due process argument involves a statute that is dis-

tinguishable from the PLCAA in some significant respect.

ILETO v. GLOCK 5605

is capable of bearing two or more interpretations, courts

should adopt the interpretation that does not raise a serious

constitutional question “unless such construction is plainly

contrary to the intent of Congress.” DeBartolo, 485 U.S. at

575. See also INS v. St. Cyr, 533 U.S. 289, 299-300 (2001)

(“[I]f an otherwise acceptable construction of a statute would

raise serious constitutional problems, and where an alternative

interpretation of the statute is ‘fairly possible,’ we are obli-

gated to construe the statute to avoid such problems.”) (quot-

ing Crowell v. Benson, 285 U.S. 22, 62 (1932)).

As I explain below, there is such an alternative interpreta-

tion of the PLCAA’s predicate exception: one that would

avoid raising the substantive due process question altogether,

by construing Plaintiffs’ state-law causes of action as arising

under “statute[s] . . . applicable to the sale and manufacture”

of firearms. 15 U.S.C. § 7903(5)(A)(iii). This alternative

interpretation is not only “fairly possible” in light of the stat-

ute’s text and legislative history, see St. Cyr, 533 U.S. at 300

(internal citation and quotation marks omitted), but also pref-

erable to the majority’s reading raising the constitutional

questions just outlined.

A.

The PLCAA’s predicate exception creates a carve-out from

the PLCAA’s mandatory dismissal provision for “action[s] in

which a manufacturer or seller of a qualified product know-

ingly violated a State or Federal statute applicable to the sale

or marketing of the product, and the violation was a proxi-

mate cause of the harm for which relief is sought.” 15 U.S.C.

§ 7903(5)(A)(iii).

The ambiguity in this provision derives primarily from its

use of the word “applicable.” As the majority notes, the

phrase “applicable to X” can mean, broadly, “capable of

being applied to X,” or, narrowly, “specifically or even exclu-

sively relevant to X.” Construing other statutes and enact-

5606 ILETO v. GLOCK

ments, courts have read the word “applicable” more broadly

or more narrowly, depending upon contextual clues. See, e.g.,

Fong v. Glover, 197 F.2d 710, 711 (9th Cir. 1952); McGee v.

Peake, 511 F.3d 1352 (Fed. Cir. 2008); Snyder v. Buck, 75 F.

Supp. 902, 907 (D.D.C. 1948), vacated on other grounds, 179

F.2d 466 (D.C. Cir. 1950)). Like the majority, I think case law

construing what Congress meant when it used the word “ap-

plicable” in other statutes unrelated to the PLCAA does little

to illuminate the word’s meaning here. See Fogerty v. Fan-

tasy, Inc., 510 U.S. 517, 522-24 (1994). What is clear, at least,

is that the predicate exception cannot possibly encompass

every statute that might be “capable of being applied” to the

sale or manufacture of firearms; if it did, the exception would

swallow the rule, and no civil lawsuits would ever be subject

to dismissal under the PLCAA. I therefore agree with the

majority that a limiting principle must be found, and that

rather than trying to locate it in the word “applicable” itself,

we must look to the predicate exception’s surrounding words.

In my view, the key to interpreting the predicate exception

is Congress’s use of the word “knowingly.” 15 U.S.C.

§ 7903(5)(A)(iii). Generally speaking, a “knowing” violation

of a given law requires “proof of [the defendant’s] knowledge

of the facts that constitute the offense.” Bryan v. United

States, 524 U.S. 184, 193 (1998); see also Cal. Penal Code

§ 7, para. 5 (stating that for purposes of the California Penal

Code, “[t]he word ‘knowingly’ imports only a knowledge that

the facts exist which bring the act or omission within the pro-

visions of this code. It does not require any knowledge of the

unlawfulness of such act or omission.”). Knowing conduct

thus stands in contrast to negligent conduct, which typically

requires only that the defendant knew or should have known

each of the facts that made his act or omission unlawful and/

or the harm that was likely to occur.10

10

See RESTATEMENT (THIRD) OF TORTS § 3, cmt. g (“To establish the

actor’s negligence, it is not enough that there be a likelihood of harm; the

ILETO v. GLOCK 5607

Neither of the California statutes on which Plaintiffs’ suit

is based requires actual knowledge as a prerequisite for liabil-

ity. The negligence statute, Cal. Civ. Code § 1714(a), requires

as part of the proximate cause analysis that the harm caused

by a defendant’s act or omission be “reasonably foreseeable.”

Lugtu v. Cal. Highway Patrol, 26 Cal. 4th 703, 716 (2001).

A private nuisance under the nuisance statute, Cal. Civ. Code

§§ 3479-80, generally requires a showing that the defendant’s

act caused an “unreasonable invasion of [the plaintiff]’s inter-

est in the free use and enjoyment of [hi]s property.” Hellman

v. La Cumbre Golf & Country Club, 6 Cal. App. 4th 1224,

1230 (1992). This “unreasonableness” factor plays a similar

role to the “foreseeability” factor in the negligence context,

and California courts have recognized that an action for nui-

sance will often require functionally the same showing as an

action for negligence. See El Escorial Owners’ Ass’n v. DLC

Plastering, Inc., 154 Cal. App. 4th 1337, 1349 (2007);

Pamela W. v. Millsom, 25 Cal. App. 4th 950, 954 n.1 (1994);

Lussier v. San Lorenzo Valley Water Dist., 206 Cal. App. 3d

92, 103-04 (1988).

That neither Cal. Civ. Code § 1714 nor Cal. Civ. Code

§§ 3479-80 requires knowing conduct is not the end of the

inquiry. The PLCAA’s predicate exception does not limit its

application to suits for “violations of State or Federal statutes

that require knowing conduct”; rather, it applies to suits for

“knowing[ ] violation[s] [of] . . . State or Federal statute[s].”

15 U.S.C. § 7903(5)(A)(iii). The difference is material: The

PLCAA’s actual knowledge requirement can quite reasonably

be read to create a mental-state overlay, a heightened require-

ment that a plaintiff must meet if his lawsuit is to proceed

likelihood must be foreseeable to the actor at the time of conduct. Fore-

seeability often relates to practical considerations concerning the actor’s

ability to anticipate future events or to understand dangerous conditions

that already exist. In such cases, what is foreseeable concerns what the

actor ‘should have known.’ ”).

5608 ILETO v. GLOCK

under the new PLCAA regime, regardless of whether the

underlying statute requires such a mens rea.11

Plaintiffs here allege that Defendants knowingly committed

a range of acts in violation of California negligence and nui-

sance law. Specifically, they allege that “Defendants . . .

knowingly participate in and facilitate the secondary market

where persons who are illegal purchasers[, including Furrow,]

. . . obtain their firearms,” First Amended Complaint (“FAC”)

¶ 31 (emphasis added), and that “Defendant[s] . . . select and

develop distribution channels that they know regularly pro-

vide guns to criminals and underage end users . . . [and,

despite information from government crime trace reports,]

knowingly supply a range of disreputable distributors, dealers,

gun shops, pawnshops, gun shows, and telemarketers in the

State of California . . . .” Id. ¶ 32 (emphases added).12 Plain-

11

I note, in addition, that Congress’s use of the word “violation” does

not necessarily suggest a distinction between common-law-based duties

and legislatively-imposed duties. Cf. Riegel v. Medtronic, Inc., 128 S.Ct.

999, 1008 (2008) (“Congress is entitled to know what meaning this Court

will assign to terms regularly used in its enactments. Absent other indica-

tion, reference to a State’s [‘]requirements[’] includes its common-law

duties. . . . [C]ommon-law liability is premised on the existence of a legal

duty, and a tort judgment therefore establishes that the defendant has vio-

lated a state-law obligation.”) (emphasis added); Medtronic, Inc. v. Lohr,

518 U.S. 470, 486, 495 (1996) (plurality opinion) (holding that § 360k of

the Medical Device Amendments, which preempts “any requirement (1)

which is different from, or in addition to, any requirement applicable

under this chapter to the device,” does not “den[y] Florida the right to pro-

vide a traditional damages remedy for violations of common-law duties

when those duties parallel federal requirements.”) (emphasis added).

12

Further, Plaintiffs’ complaint alleges that “the easy availability of fire-

arms for criminal purposes is a direct, known result of [D]efendants’ mar-

keting and distribution policies and practices.” FAC ¶ 58 (emphasis

added). Although the Bureau of Alcohol, Tobacco and Firearms has “re-

ported . . . that . . . about 1% [of dealers nationwide] account for over half

of the successfully traced guns used in crime,” id. ¶ 49, and although ATF

regularly forwards Defendants crime-trace data on particular distributors

and dealers, Defendants “choose not to use the data . . . to change their

ILETO v. GLOCK 5609

tiffs also allege that Defendants intentionally flood police

departments with frequent waves of upgrades, enabling

Defendants to resell police departments’ retired models on the

secondary market. And Plaintiffs allege that “Defendants have

full knowledge that their policies and practices will and regu-

larly do result in substantially increased levels of firearms use

in crime . . . in California, and that their conduct . . . [unrea-

sonably] interferes with the public safety, health or peace

. . . .” Id. ¶ 126-29 (emphasis added).

With their allegations, Plaintiffs are not imputing vicarious

liability to Defendants for Furrow’s unlawful acts. Rather,

they are alleging that Defendants themselves knowingly

engaged in unlawful conduct: dangerous distribution and mar-

keting practices, and the knowing maintenance of a nuisance.

And while the majority is correct that Furrow’s shooting was

the last link in the causal chain that occasioned Plaintiffs’ suit,

see Maj. Op. at 5554 n.1, the violations of law for which

Plaintiffs seek redress as against Defendants Glock and RSR

are separate from the violations of law that Furrow himself

committed. In other words, Plaintiffs advance a theory of

direct liability, not vicarious liability, against Defendants.

Their cause of action is premised on the allegation that Defen-

dants’ own wrongful conduct proximately caused them harm.13

marketing and distribution practices to reduce the foreseeable risk that

their firearms will become possessed by prohibited persons.” Id. ¶ 66

(emphasis added). Further, Plaintiffs allege, Defendant manufacturers

choose not to train their dealers, id. ¶ 77, or to cut off contracts with dis-

tributors who sell to dealers with disproportionately high sale-to-crime

rates. Id. ¶ 72. Defendants also allegedly market their products to appeal

to prospective purchasers with criminal intent, emphasizing characteristics

such as easy concealability and rapid fire capability. Id. ¶ 81-88.

13

In this respect, the case law concerning suits against municipalities

under 42 U.S.C. § 1983 may provide a useful analogy, as it throws the dis-

tinction between direct liability and respondeat superior — a type of vicar-

ious liability — into sharper relief. Under Monell v. Dep’t of Soc. Servs.,

436 U.S. 658 (1978), “a municipality cannot be held liable solely because

5610 ILETO v. GLOCK

One could quarrel with Plaintiffs’ theory of causation, to be

sure, and perhaps they would lose on summary judgment or

at trial. But this Court determined on a prior appeal that Plain-

tiffs have properly stated violations of California law (includ-

ing satisfying the statutes’ requirement of proximate cause)

for purposes of surviving a motion to dismiss, see Ileto v.

Glock, 349 F.3d 1191, 1194 (9th Cir. 2003), and that holding

is the law of the case. Maj. Op. at 5558 & n.2. The question

now before us is whether, assuming that Plaintiffs have stated

violations of California law, they have also alleged sufficient

facts to come within the PLCAA’s predicate exception and

avoid its mandatory dismissal requirement.

At the time Plaintiffs’ complaint was originally filed, the

PLCAA had not yet been enacted. So, by alleging that Defen-

dants had actual knowledge of the impact of their intentional

actions rather than that the impact was reasonably foresee-

it employs a tortfeasor — or, in other words, a municipality cannot be held

liable under § 1983 on a respondeat superior theory.” Id. at 691. But,

Monell held, a municipality can be held directly liable for a violation of

the Constitution or a federal law under § 1983 if its own “policy or custom

. . . inflicts the injury[.]” Id. at 694. Later cases have clarified that a

municipality will be liable for a policy of inadequate training or supervi-

sion of police officers only if the policy “reflects a ‘deliberate’ or ‘con-

scious’ choice by a municipality” not to avoid the risk of harm. City of

Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989).

Suppose, for example, that a municipality maintains a policy of hiring

police officers without running criminal background checks on them or

providing firearms training, and that it knows several of its officers have

committed violent crimes in the course of duty in the past. If a police offi-

cer hired and retained under this policy then shoots and kills a group of

innocent bystanders, the municipality would not be liable to the victims

for the shooting on a respondeat superior theory, but it would be directly

liable for its own wrongful act: maintaining a policy of inadequate screen-

ing and supervision with “deliberate indifference” to the risk of harm that

policy created. See Bd. of County Commissioners of Bryan County, Okla-

homa v. Brown, 520 U.S. 397 (1997). The violations are distinct, even

though the same act — the shooting — occasions the victim’s suit.

ILETO v. GLOCK 5611

able, Plaintiffs put forward more than they needed to state a

claim under the California statutes.14 When Congress passed

the PLCAA in 2005, though, it effectively raised the bar con-

cerning what Plaintiffs must allege to avoid a motion to dis-

miss. As a result, even when the underlying state statute does

not itself require “knowing” action, plaintiffs must now allege

and, ultimately, prove such actions to survive PLCAA preemp-

tion.15

In short, Plaintiffs have presciently undertaken to prove

that Defendants knew the impact of their actions and under-

took them anyway, even though the underlying state statutes

require only that Defendants should have known, and not that

they actually knew, the impact of their actions. Because Plain-

tiffs have adequately and specifically pleaded actual knowl-

edge, they have shown “knowing[ ] violat[ions]” of the

14

I note, in this respect, that California courts do recognize “an aggra-

vated form of negligence,” sometimes called “willful misconduct,” for

which the “pleading requirements are similar to negligence but stricter”:

A plaintiff must show “(1) actual or constructive knowledge of the peril

to be apprehended, (2) actual or constructive knowledge that injury is a

probable, as opposed to a possible, result of the danger, and (3) conscious

failure to act to avoid the peril.” Berkley v. Dowds, 152 Cal. App. 4th 518,

526-28 (2007) (internal alterations, quotation marks, and citations omit-

ted). The PLCAA, on my reading, would require something slightly more

onerous: a showing of actual, not constructive, knowledge of all the ele-

ments that establish a violation of law.

15

When Congress is acting in an area over which it has constitutionally

delegated authority, there is nothing particularly unusual about a federal

statute adding to the proof burdens that would be applicable under state

law. See, e.g., Gorman v. Wolpoff & Abrahamson, LLP, 552 F.3d 1008,

1025-27 (9th Cir. 2009) (holding that the Fair Credit Reporting Act per-

mits state defamation claims to avoid preemption, if at all, only if plain-

tiffs plead and prove “malice or willful intent,” a mens rea not inherent in

most state defamation actions); 800 Adept, Inc. v. Murex Securities, Ltd.,

539 F.3d 1354, 1369 (Fed. Cir. 2008) (“State tort claims against a patent

holder, including tortious interference claims, based on enforcing a patent

in the marketplace, are ‘preempted’ by federal patent laws, unless the

claimant can show that the patent holder acted in ‘bad faith’ in the publi-

cation or enforcement of its patent.”).

5612 ILETO v. GLOCK

California statutes that form the basis for their suit. 15 U.S.C.

7903(5)(A)(iii).

Understanding the phrase “knowingly violated” as impos-

ing a heightened pleading requirement for litigants who seek

to come within the predicate exception thus gives sense and

structure to an otherwise ambiguous provision. 15 U.S.C.

7903(5)(A)(iii). Having located the predicate exception’s lim-

iting factor, it makes sense to read the term “applicable”

broadly, encompassing statutes that are “capable of being

applied” to the sale or marketing of firearms, as Cal. Civ.

Code §§ 1719 and 3479-80 certainly are.

B.

My interpretation of the predicate exception is fully consis-

tent with surrounding provisions of the PLCAA’s text. Unlike

the majority, I read the PLCAA’s text as strongly supporting

the view that the Act’s purpose is to protect firearms manu-

facturers and sellers from liability for acts solely those of third

parties.

First, according to the PLCAA’s “Purposes” section, the

purpose of the Act is “[t]o prohibit causes of action against

manufacturers [and sellers] . . . for the harm solely caused by

the criminal or unlawful misuse of firearm products or ammu-

nition products by others.” 15 U.S.C. § 7901(b)(1) (emphasis

added). The majority ignores Congress’s use of the word

“solely,” reading this provision to suggest that Congress’s

intention was “to preempt common-law claims, such as gen-

eral tort theories of liability.” Maj. Op. at 5564. I disagree.

The purpose articulated at § 7901(b)(1) is, by its own terms,

not to reject tort theories of liability in general, but rather to

prevent claims alleging strict or vicarious liability.

Indeed, the PLCAA repeatedly describes the sorts of law-

suits with which Congress was concerned as lawsuits based

particularly on vicarious liability theories. See 15 U.S.C.

ILETO v. GLOCK 5613

§§ 7901(a)(3) (“harm caused by the misuse of firearms by

third parties”); 7901(a)(5) (“harm caused by those who crimi-

nally or unlawfully misuse firearm products or ammunition

products that function as designed and intended”); 7901(a)(6)

(“harm that is solely caused by others”). Reading the predi-

cate exception to encompass only lawsuits alleging that defen-

dants themselves knowingly engaged in unlawful conduct is

fully consistent with this purpose, as such a reading would

preclude the filing of suits that allege liability arising solely

out of acts taken by third parties which the defendants failed

to correct or prevent.

Second, the majority notes that the PLCAA elsewhere

speaks of “Federal, State, and local laws” that “heavily regu-

late[ ]” the manufacture and sale of firearms, 15 U.S.C.

§ 7901(a)(4), and it concludes that Congress likely had only

this narrow subset of laws (apparently, firearm-specific laws

and regulations) in mind when drafting the predicate excep-

tion as well. Maj. Op. at 5566. I draw precisely the opposite

conclusion from Congress’s choice of language in

§ 7901(a)(4). That subsection speaks of “Federal, State, and

local laws” (not “statutes”) that “heavily regulate[ ]” (rather

than “apply to”) firearms. Id. § 7901(a)(4) (emphases added).

If Congress had intended the predicate exception to reach

only those statutes specifically regulating the sale or market-

ing of firearms, to which it appears § 7901(a)(4) refers, surely

the more straightforward way to do so would be to mirror the

language of § 7901(a)(4) more closely. See Boise Cascade

Corp. v. United States Envtl. Prot. Agency, 942 F.2d 1427,

1432 (9th Cir.1991) (“[W]e presume that words used more

than once in the same statute have the same meaning.”).

Instead, Congress chose to use the broader phrase “State or

Federal statute[s] applicable to the sale or marketing of [fire-

arms]” in the predicate exception. Id. § 7903(5)(A)(iii). If any

inference can be drawn from this difference in language, it is

not that § 7901(a)(4) and § 7903(5)(A)(iii) should be read as

coterminous, as the majority suggests, but that they should be

read differently. See Tang v. Reno, 77 F.3d 1194, 1197 (9th

5614 ILETO v. GLOCK

Cir. 1996) (“[W]here Congress includes particular language in

one section of a statute but omits it in another section of the

same Act, it is generally presumed that Congress acts inten-

tionally and purposely in the disparate inclusion or exclu-

sion.”).

Third, the majority states that “Congress’[s] intention to

create national uniformity” — an intention to which the

PLCAA adverts only indirectly, in the “Purposes” section at

15 U.S.C. § 7901(b)(4) (“[t]o prevent . . . unreasonable bur-

dens on interstate . . . commerce”) — is incompatible with a

reading of the predicate exception that would allow Plaintiffs’

claims to survive. Maj. Op. at 5566. I disagree here as well.

Reading the predicate exception to impose an actual knowl-

edge requirement on litigants does create a nationally uniform

baseline standard of liability. At the same time, this reading

also accommodates another of the PLCAA’s stated purposes

— “preserv[ing] and protect[ing] the important principles of

federalism [and] State sovereignty,” 15 U.S.C. § 7901(b)(6)

— by allowing the continued enforcement of state laws that,

like California’s, reflect the considered policy choices of the

legislature. It is worth noting, in this regard, that the Califor-

nia Penal Code specifically states that the unlawful possession

of a firearm is a nuisance. See Cal. Penal Code § 12028(b).

And several years after Defendants committed the acts alleged

in Plaintiffs’ complaint, the California legislature amended

the negligence statute to specify that “[t]he design, distribu-

tion, or marketing of firearms and ammunition is not exempt

from the duty to use ordinary care and skill that is required by

this section.” Cal. Civ. Code § 1714(a); see also A.B. 496,

2002 Cal. Legis. Serv. 906 (West) (2002).

I therefore conclude that the PLCAA’s text is fully consis-

tent with the reading of the predicate exception I have sug-

gested: that “statute[s] applicable to the sale or marketing of

[firearms]” includes any statutes capable of being applied to

the sale or marketing of firearms, but that to proceed under

the exception, litigants must allege that defendants “know-

ILETO v. GLOCK 5615

ingly violated” those statutes. 15 U.S.C. § 7903(5)(A)(iii). Far

from “ignor[ing] the text and purpose of [the] statute,” see

Maj. Op. at 5568 n.8 (quoting Boumediene v. Bush, 128 S. Ct.

2229, 2271 (2008)), I think this to be an entirely fair reading

of the PLCAA.

C.

DeBartolo counsels that courts employing the canon of

constitutional avoidance look not only to the statutory text,

but also to the legislative history, to ensure that their reading

of the statute is not contrary to Congress’s clear intent.

DeBartolo, 485 U.S. at 583-84; see also Catholic Bishop, 440

U.S. at 504. Unlike the majority, I read the PLCAA’s legisla-

tive history not to foreclose the reading I suggest here, but

rather in large part to support it.

Senator Sessions, one of the bill’s leading supporters, stated

that “[t]his bill is incredibly narrow. It only forbids lawsuits

brought against lawful manufacturers and sellers of firearms

or ammunition if the suits are based on criminal or unlawful

misuse of the product by a third party.” 151 Cong. Rec. S8908

(July 26, 2005) (statement of Sen. Sessions). Reading through

the legislative history, it becomes clear that like Senator Ses-

sions, the bill’s supporters broadly understood that the

PLCAA would not do away with all tort liability, but rather

that it would (1) limit firearms manufacturers or sellers’ tort

liability to their own conduct, not the conduct of third parties

(thus imposing a narrow view of foreseeability and proximate

cause), and (2) impose an extra “knowledge” requirement on

state-defined duties of care.16 The bill was viewed essentially

16

See, e.g., 151 Cong. Rec. S9088 (July 27, 2005) (statement of Sen.

Craig) (“[This bill] does not prevent [gun manufacturers and sellers] from

being sued for their own misconduct. This bill only stops one extremely

narrow category of lawsuits[:] lawsuits that attempt to force the gun indus-

try to pay for the crimes of third parties over whom they have no control.

We have tried to make that limitation as clear as we possibly can . . . .”);

5616 ILETO v. GLOCK

as a tort-reform measure, aimed at restraining the supposed

expansion of tort liability beyond its “traditional[ ]” bounda-

ries, 151 Cong. Rec. S8910 (July 26, 2005) (statement of Sen.

Sessions), particularly by “activist judge[s]” and municipali-

ties suing the gun industry on public nuisance and strict liabil-

ity theories. Id. at S8911.17 Suits for the wrongful acts of

id. (statement of Sen. Craig) (“This bill responds to a series of lawsuits

filed primarily by municipalities to shift the financial burden for criminal

violence onto the law-abiding business community. These suits are based

on a variety of legal theories. . . . seeking to hold gun manufacturers and

sellers liable for the cost of injuries caused by people over whom they

have no control — criminals who choose to use firearms illegally.”); id.

at S9089 (statement of Sen. Craig) (“This is not a gun industry immunity

bill. It prohibits one kind of lawsuit[:] a suit trying to fix the blame of a

third party’s criminal acts or misdeeds on the manufacturer or the seller

of the firearm used in that crime.”); 151 Cong. Rec. S8908-11 (July 26,

2005) (statement of Sen. Sessions) (“Manufacturers and sellers are still

responsible for their own negligent or criminal conduct . . . .” ); id. (“It

is simply wrong . . . to allow those manufacturers who comply with the

many rules we have set forth . . . to be sued for intervening criminal acts

. . . . [But] [i]f they knew, if they had reason to know, if they were negli-

gent in going through the requirements of the law or failed to do the

requirements of the law, they can [still] be sued [despite the PLCAA]”);

id. at S8911 (statement of Sen. Sessions) (“Plaintiffs can go to court if the

gun dealers do not follow the law, if they negligently sell the gun, if they

produce a product that is improper or they sell to someone they know

should not be sold to or did not follow steps to determine whether the indi-

vidual was [eligible] to buy[ ] a gun.”); 151 Cong. Rec. S9226 (July 28,

2005) (statement of Sen. Graham) (“What . . . [this bill will prohibit are

suits that seek] under a gross negligence or simple negligence standard

[to] create a duty on the part of sellers and manufacturers for an event that

they can’t control which is the intentional misuse of a weapon to commit

a crime . . . .” ).

17

See 151 Cong. Rec. S9088 (July 27, 2005) (statement of Sen. Craig)

(“This bill responds to a series of lawsuits filed primarily by municipali-

ties to shift the financial burden for criminal violence onto the law-abiding

business community.”); id. at S9088-89 (statement of Sen. Craig) (charac-

terizing the “junk lawsuits” that the PLCAA would prohibit as threatening

to “reverse a longstanding legal principle in this country . . . that manufac-

turers of products are not responsible for the criminal misuse of those

ILETO v. GLOCK 5617

firearms manufacturers and sellers themselves were not the

focus of the dismissal provision.

I recognize, of course, that individual legislators at times

suggested divergent views of what sorts of lawsuits the

PLCAA would affect if it were passed into law.18 Some of

those views appear perhaps implausibly narrow or implausi-

bly broad, likely because the bill excited strong emotions

products”); 151 Cong. Rec. S9378 (statement of Sen. Sessions) (“We

ha[ve] a group of activist, anti-gun litigators who sometimes buddy up

with a city or mayor somewhere — usually a big city — and try to conjure

up some way to make a legitimate manufacturer of a firearm liable for

intervening acts of criminals and murderers. That has never been the prin-

ciple of American law, but it is a reality that is occurring today and it

threatens an industry that supplies our military with weapons.”).

Relatively little of the debates focused on tort suits brought by injured

individuals, as opposed to municipalities. But see 151 Cong. Rec. S9386

(July 29, 2005) (statement of Sen. Reed) (advocating an amendment,

which ultimately failed, that would have “preserve[d] the right of an indi-

vidual to sue for negligence when they have been harmed and when that

negligence can fairly be attributed to a gun manufacturer . . . [or] dealer

. . . . [I]f we are confronted with this legislation, I propose we step back

and perhaps reluctantly eliminate suits by municipalities, but for goodness

sakes, we can have and maintain suits by individuals . . . . At a minimum,

we have to allow the tort law of the various States . . . to be operative

. . . .” ); id. at S9389 (July 29, 2005) (statement of Sen. Allen) (supporting

the bill as written, and stating that “[t]his legislation does carefully pre-

serve the right of individuals to have their day in court with civil liability

actions for injury or danger caused by negligence on the firearms dealer

or manufacturer[’s part] or defective product . . . .” ).

18

Compare 151 Cong. Rec. S9226 (July 28, 2005) (statement of Sen.

Kyl) (supporting the bill and opposing an amendment that would have

expressly permitted suits alleging gross negligence or recklessness to go

forward; arguing that the bill as written already would allow suits alleging

“gross negligence or reckless conduct . . . [as] the proximate cause of

death or injury”), and 151 Cong. Rec. S9926 (July 25, 2005) (statement

of Sen. Graham) (same), with 151 Cong. Rec. S9385 (July 29, 2005)

(statement of Sen. Schumer) (opposing the bill as written, and arguing that

“[e]ven when somebody is grossly negligent . . . they will” be immune

from suit), and id. at S9380 (statement of Sen. Kennedy) (same).

5618 ILETO v. GLOCK

from both its supporters and its opponents. As courts have

long cautioned, however, the statements of single lawmakers

do not establish congressional intent. Thompson v. Calderon,

151 F.3d 918, 928-29 (9th Cir. 1998) (“[I]ndividual senators

do not make laws; majorities of the House and Senate do.”);

see also Chrysler Corp. v. Brown, 441 U.S. 281, 311 (1979).

That is why committee reports are more persuasive indicators

of “the considered and collective understanding of those Con-

gressmen involved in drafting and studying proposed legisla-

tion.” Garcia v. United States, 469 U.S. 70, 76 (1984)

(internal quotation marks omitted); see also Gen. Elec. Co. v.

EPA, 360 F.3d 188, 193-94 (D.C. Cir. 2004) (the broad read-

ing of an ambiguous statutory preemption provision put for-

ward in the “floor statement by a single senator” is “hardly

persuasive evidence of congressional intent” in the face of

committee reports that read the provision more narrowly).

Here, the House Judiciary Committee Report confirms the

picture that emerges from the legislative history as a whole —

that the PLCAA was intended to preclude the imposition of

strict or vicarious liability on the gun industry for the criminal

actions of third parties. The House Report describes the bill

as aimed at combating a trend of “[r]ecent litigation . . .

against the firearms industry . . . based on novel claims that

invite courts to dramatically break from bedrock principles of

tort law,” H.R. REP. NO. 109-124, at 11 (2005), and to hold

firearms manufacturers and sellers “liable for the injuries

caused by the criminal action of third parties.” Id. at 6.19

19

Like the floor debates, much of the House Report focuses on the per-

ceived need to curtail lawsuits brought by municipalities, rather than those

brought by individuals. See id. at 18 (describing municipal plaintiffs as

attempting to “regulate firearms whereas only the State had the power to

regulate in this area”); id. at 13 (“The various public entities that have

brought suit against the gun industry in recent years have raised novel

claims that seek reimbursement of government expenses — including

costs for police protection, emergency and medical services, and pension

benefits — associated with gun-related crimes.”). (No Senate Report was

published.)

ILETO v. GLOCK 5619

Reading the predicate exception as preserving causes of

action for injuries caused by gun manufacturers and sellers’

own knowingly unlawful conduct is fully consistent with that

view.

The majority correctly points out that both Senator Craig

and Representative Stearns listed Ileto v. Glock among the

lawsuits that they expected the PLCAA would preempt. See

Maj. Op. at 5567-68. But there is no indication in their

descriptions of the case that these lawmakers actually under-

stood what Plaintiffs were alleging in this case: that Defen-

dants themselves knowingly committed unlawful acts. Quite

the contrary, Senator Craig and Representative Stearns’s

remarks suggest that they believed Ileto was purely a vicari-

ous liability suit.20 Whatever effect these two lawmakers

thought the PLCAA would have on Plaintiffs’ suit, their

apparently ill-informed projections do not amount to “clear

congressional intent” to enact a law that would immunize fire-

arms manufacturers and sellers from tort liability for even

their own knowing unlawful acts. DeBartolo, 485 U.S. at 574.

D.

Applying the PLCAA’s predicate exception as written —

that is, as applying to all statutes capable of being applied to

the sale or marketing of firearms, but imposing an actual

20

See 151 Cong. Rec. S9394 (July 29, 2005) (statement of Sen. Craig)

(“Another example of a lawsuit captured by this bill is the case of Ileto

v. Glock . . . . The United States Ninth Circuit Court of Appeals said Glock

and RSR could be sued for a criminal shooting when Glock sold the pistol

to a Washington State police department and the distributor RSR never

owned, nor sold, nor possessed the firearm.”); 151 Cong. Rec. E2163

(Oct. 25, 2005) (statement of Rep. Stearns) (extensions of remarks)

(“Another example is the case of Ileto v. Glock . . . . The facts, if you can

believe it, are that the manufacturer, Glock, sold the pistol later criminally

misused, to a Washington State police department and the distributor

being sued never owned, sold, nor possessed the firearm that was crimi-

nally misused.”).

5620 ILETO v. GLOCK

knowledge requirement — would prohibit a swath of lawsuits

against firearms manufacturers and sellers, including those

brought by municipalities for violations of no-fault or abso-

lute liability statutes or those brought by individuals alleging

vicarious liability under state tort law for the conduct of third

parties of which the gun manufacturers or sellers were not

aware.

It may well be that the PLCAA’s application to these other

state actions would be constitutionally problematic for the

same reasons outlined in Part II above. The reading of the

predicate exception’s ambiguous language I have suggested

might simply delay those hard constitutional questions for

another case. But that is, ultimately, what the canon of consti-

tutional avoidance is meant to do.21 The legislation or the con-

stitutional law could change in the meantime, or no concrete

case could arise in which the constitutional issue needs to be

addressed. The reading I have suggested here would resolve

the case in front of us, allowing Plaintiffs’ suit to go forward

and leaving the constitutional issue for another day, should

that day arise.

CONCLUSION

I would hold that the PLCAA does not require the dismissal

of Plaintiffs’ suit, and not decide the difficult questions of

constitutional law that the statute would otherwise raise. I

therefore respectfully dissent.

21

The majority asserts that the “point” of the constitutional avoidance

canon “is to adopt an alternative interpretation of the statute that avoids

any constitutional problem.” Maj. Op. at 5579 n.12 (emphasis added). But

surely, that is not so. The point, rather, is avoid constitutional questions

actually raised by a given case. Whatever constitutional problems might

be raised in other cases — or even in this one at a later stage in the litiga-

tion, if Plaintiffs were unable to prove the knowing conduct they have

pleaded and could show only negligence — are not before us today, and

cannot guide our choice between two plausible readings of the statute

when one would raise a serious constitutional question in this case.