Estate of Kim Ex Rel. Alexander v. Coxe

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email

corrections@appellate.courts.state.ak.us.

THE SUPREME COURT OF THE STATE OF ALASKA

ESTATE OF SIMONE YOUNG KIM, )

by its Personal Representative, SERENA )

ALEXANDER, CHU CHA KIM, and )

AMBROSUS H. KIM, )

) Supreme Court No. S-14077

Appellants, )

) Superior Court No. 1JU-08-00761 CI

v. )

) OPINION

RAY COXE, d/b/a RAYCO SALES, )

and JASON CODAY, ) No. 6752 - February 22, 2013

)

Appellees, )

)

and )

)

UNITED STATES OF AMERICA, )

)

Intervenor­ )

Appellee. )

)

Appeal from the Superior Court of the State of Alaska, First

Judicial District, Juneau, Philip M. Pallenberg, Judge.

Appearances: Mark Choate, Choate Law Firm L.L.C.,

Juneau, and Jonathan E. Lowy and Daniel R. Vice, Brady

Center To Prevent Gun Violence, Washington D.C., for

Appellants. Anthony M. Sholty and Lael A. Harrison,

Faulkner Banfield, P.C., Juneau, for Appellee Coxe. No

appearance by Appellee Coday. Richard Pomeroy, Assistant

United States Attorney, and Karen Loeffler, United States

Attorney, Anchorage, and Benjamin S. Kingsley, Attorney,

Appellate Staff, Civil Division, and Tony West, Assistant

Attorney General, Washington D.C. for Intervenor-Appellee

United States of America.

Before: Carpeneti, Chief Justice, Fabe, Winfree, and

Stowers, Justices.

WINFREE, Justice.

I. INTRODUCTION

Jason Coday shot and killed Simone Kim with a rifle obtained from Ray

Coxe’s gun store. Kim’s Estate (the Estate) brought a wrongful death action against

Coxe, alleging that Coxe negligently or illegally provided Coday the rifle. Coxe

defended in part by asserting immunity under the Protection of Lawful Commerce in

Arms Act1 (PLCAA). The Estate argued against applying the PLCAA and alternatively

that it was unconstitutional. The superior court ruled that the PLCAA was constitutional

and, interpreting and applying the PLCAA’s immunity provisions to the facts of this

case, granted summary judgment dismissing the Estate’s claims against Coxe. The

Estate appeals.

We affirm the superior court’s ruling that the PLCAA is constitutional and

its interpretation of the PLCAA, but because it is unclear whether certain evidence before

the superior court actually was or should have been considered when granting summary

judgment dismissing the Estate’s claims, we vacate the summary judgment ruling and

remand for further consideration.

1

15 U.S.C. §§ 7901-7903 (2006).

-2- 6752

II. FACTS AND PROCEEDINGS

A. Facts

Rayco Sales is a licensed gun shop in Juneau owned and operated by Ray

Coxe. On an August 2006 afternoon, Jason Coday entered Rayco. Present in Rayco

were Coxe, Rayco employee Bill Driver, and Rayco customer Stan Bickham.

Coxe thought Coday looked like he was “living in the woods or had just got

off the ferry” because he had on a backpack and had a sleeping bag in a plastic bag tied

around his waist. Coxe, Driver, and Bickham all testified that they did not notice any

appearances or behavior indicating danger, drug use, or potential for violence.

Coday asked Driver if Rayco stocked Ruger10/22 rifles. Coday then asked

Bickham about differences between several .22 rifles. Coday told Bickham he was going

to do some target shooting, and was wondering about the various rifles’ accuracy and

prices.

Coday then approached Coxe and asked to look at .22 rifles. Fearing

Coday’s backpack might knock over merchandise, Coxe asked Coday to remove it.

Coday complied and the two went behind the sales counter, where Coxe explained the

differences between several .22 rifles. Coday seemed most interested in a Ruger 10/22,

and Coxe showed Coday a used rifle priced at $195. After discussing the rifles and

prices, Coday indicated he would have to think about a purchase. He went back to the

public side of the sales counter and put his backpack on. Thinking Coday was leaving,

Coxe went to the back of the store to attend other matters.

Driver later noticed a rifle missing and two $100 bills on the counter.

Driver asked Coxe if he had sold Coday the rifle. Coxe verified the rifle was missing and

then drove his truck around the neighboring area in an unsuccessful attempt to find

Coday. At some point either Coxe or an employee called the Juneau Police Department.

Coxe reported the rifle stolen, and on the advice of a police officer, deposited the $200

-3- 6752

in the bank as a sale. Rayco had two videotape surveillance systems, but neither

captured any footage of the day’s events.

Two days later Coday shot and killed Simone Kim with the rifle.

B. Proceedings

In 2008 the Estate brought a wrongful death action against Coxe and

Coday. Coday did not appear and default was entered against him.

The Estate contended that Coxe had illegally or negligently provided Coday

the firearm. Coxe moved for summary judgment based on the PLCAA, which prohibits

certain civil actions for damages against a manufacturer or seller of a firearm in

connection with a third party’s criminal or unlawful misuse of the firearm.2 The Estate

opposed the motion, arguing the PLCAA did not apply, but that if it did, it was

unconstitutional. The Estate first argued the PLCAA did not immunize gun dealers from

their own negligent acts. The Estate also argued there were disputes of material fact

relevant to claims excepted from the PLCAA — negligent entrustment, negligence per

se, and knowing violations of laws “applicable to the sale or marketing of [firearms].”3

On the constitutional issues, the Estate argued the PLCAA violated the Tenth

Amendment, separation of powers, due process, and equal protection.

After oral argument the superior court granted Coxe’s motion for summary

judgment. The Estate appeals the superior court’s ruling on the PLCAA’s

constitutionality and construction, as well as the grant of summary judgment to Coxe

based on the PLCAA. The United States intervened to defend the PLCAA’s

constitutionality, but takes no position on PLCAA interpretations or its application to this

case.

2

15 U.S.C. §§ 7902-7903.

3

15 U.S.C. § 7903(5)(A)(ii)-(iii).

-4­ 6752

III. STANDARD OF REVIEW

We review a grant of summary judgment de novo, applying our

independent judgment.4 We also review issues of constitutional interpretation de novo,

applying our independent judgment,5 and similarly apply our independent judgment to

the interpretation of federal statutes.6

IV. DISCUSSION

A. The PLCAA Bars Negligence Actions Not Falling Under An

Enumerated Exception.

The Estate assigns error to the superior court’s interpretation of the PLCAA

as barring general negligence actions. The Estate argues that the PLCAA provides

immunity only in cases where the harm is caused solely by others, relying primarily on

the codified Congressional findings and purposes.7 Coxe responds that the superior court

correctly interpreted the PLCAA, consistent with the substantive provisions’ plain

meaning.

The PLCAA’s substantive portion, 15 U.S.C. § 7902, titled “Prohibition on

bringing of qualified civil liability actions in Federal or State court,” provides that: “A

4

Kalenka v. Infinity Ins. Cos., 262 P.3d 602, 607 (Alaska 2011) (citing

Burnett v. Covell, 191 P.3d 985, 987 (Alaska 2008)).

5

Stephanie F. v. George C., 270 P.3d 737, 746 (Alaska 2012) (quoting State

v. Alaska Civil Liberties Union, 978 P.2d 597, 603 (Alaska 1999) and Premera Blue

Cross v. State, Dep’t of Commerce, Cmty. & Econ. Dev., Div. of Ins., 171 P.3d 1110,

1115 (Alaska 2007)).

6

State v. Native Vill. of Tanana, 249 P.3d 734, 737 (Alaska 2011); John v.

Baker, 982 P.2d 738, 744 (Alaska 1999) (citing In re T.N.F., 781 P.2d 973, 975 (Alaska

1989)).

7

15 U.S.C. § 7901.

-5- 6752

qualified civil liability action may not be brought in any Federal or State court.”8

“Qualified civil liability action” is defined as “a civil action . . . brought by any person

against a . . . seller of a [firearm] . . . for damages . . . resulting from the criminal or

unlawful misuse of a [firearm] by the person or a third party.”9 The definition excludes

from “qualified civil liability action” those actions based on negligence per se, negligent

entrustment, and knowing violations of state or federal statutes related to firearms.10

A plain reading of this text supports a prohibition on general negligence

actions — including negligence with concurrent causation. The statutory exceptions do

not include general negligence, and reading a general negligence exception into the

statute would make the negligence per se and negligent entrustment exceptions a

surplusage.

The Estate argues the term “resulting from the criminal or unlawful misuse”

in § 7903(5)(A) must be read in light of Congressional findings and purposes codified

at § 7901, which provides: “Congress finds . . . [t]he possibility of imposing liability on

an entire industry for harm that is solely caused by others is an abuse of the legal

system”11 and “[t]he purposes of this chapter are . . . [t]o prohibit causes of action against

. . . dealers . . . of firearms . . . for the harm solely caused by the criminal or unlawful

misuse of firearm products . . . by others when the product functioned as designed and

intended.”12

8

15 U.S.C. § 7902(a).

9

15 U.S.C. § 7903(5)(A).

10

15 U.S.C. § 7903(5)(A)(i)-(iii).

11

15 U.S.C. § 7901(a)(6).

12

15 U.S.C. § 7901(b)(1).

-6- 6752

When interpreting statutes, “we must, whenever possible, interpret each part

or section of a statute with every other part or section, so as to create a harmonious

whole.”13 We presume that Congress “intended every word, sentence, or provision of

a statute to have some purpose, force, and effect, and that no words or provisions are

superfluous.”14 However a statutory preamble “can neither restrain nor extend the

meaning of an unambiguous statute; nor can it be used to create doubt or uncertainty

which does not otherwise exist.”15 The Estate’s construction would elevate the PLCAA’s

preamble over the substantive portion’s clear language.

In interpreting a statute, we do “not stop with the plain meaning of the text

. . . ‘even if a statute is facially unambiguous.’ ”16 Rather, we apply “a sliding scale

approach, where ‘[t]he plainer the statutory language is, the more convincing the

evidence of contrary legislative purpose or intent must be.’ ”17 The Estate points out

13

State, Dep’t of Commerce, Cmty. & Econ. Dev., Div. of Ins. v. Progressive

Cas. Ins. Co., 165 P.3d 624, 629 (Alaska 2007) (quoting Kodiak Island Borough v.

Exxon Corp., 991 P.2d 757, 761 (Alaska 1999)).

14

Id. (quoting Kodiak Island Borough, 991 P.2d at 761).

15

Commercial Fisheries Entry Comm’n v. Apokedak, 680 P.2d 486, 488 n.3

(Alaska 1984) (quoting 2A C. SANDS , STATUTES AND STATUTORY CONSTRUCTION §

47.04 (1973)); see also H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 245 (1989)

(explaining that Congress’s expressed purpose does not alter plain statutory language);

Jogi v. Voges, 480 F.3d 822, 834 (7th Cir. 2007) (citing authority holding titles and

preambles do not control over plain statutory language).

16

State, Commercial Fisheries Entry Comm’n v. Carlson, 270 P.3d 755, 762

(Alaska 2012) (quoting State, Dep’t of Commerce, Cmty. & Econ. Dev., Div. of Ins. v.

Alyeska Pipeline Serv. Co., 262 P.3d 593, 597 (Alaska 2011)).

17

Id. (quoting Gov’t Emps. Ins. Co. v. Graham–Gonzalez, 107 P.3d 279, 284

(Alaska 2005)); see also United States v. Poliak, 823 F.2d 371, 372 (9th Cir. 1987) (“The

(continued...)

-7- 6752

portions of the PLCAA’s legislative history supporting its interpretation. For example,

Senator Craig, the PLCAA’s sponsor, stated: “If manufacturers or dealers break the law

or commit negligence, they are still liable.”18 Coxe points out portions of the legislative

history supporting his position. For example, Senator Reed stated: “This bill goes way

beyond strict liability. It says simple negligence is out the door . . . .”19 Additionally, as

another court has noted, a PLCAA amendment creating a simple negligence exception

was offered but failed to pass.20

This history does not indicate a strong legislative intent in favor of either

construction. Even if legislative history is “somewhat contrary” to the plain meaning of

a statute, plain meaning still controls.21 The PLCAA’s legislative history is not

“somewhat contrary”; it is indeterminate, and it does not control the statute’s

interpretation.

The Estate also notes that, in contrast to the final version, a prior version

of the legislation that failed to pass the Senate two years before the PLCAA’s passage

17

(...continued)

plain meaning of the words used controls, absent a clearly expressed legislative intent

to the contrary.”); Oels v. Anchorage Police Dep’t Emps. Ass’n, 279 P.3d 589, 595

(Alaska 2012) (“We have held that ‘the plainer the language of the statute, the more

convincing any contrary legislative history must be . . . to overcome the statute’s plain

meaning.’ ” (quoting Peninsula Mktg. Ass’n v. State, 817 P.2d 917, 922 (Alaska 1991))).

18

151 Cong. Rec. S9099 (daily ed. July 27, 2005).

19

151 Cong. Rec. S9085 (daily ed. July 27, 2005).

20

Ileto v. Glock, Inc., 421 F. Supp. 2d 1274, 1294 & n.23 (C.D. Cal. 2006)

(noting statements of Senators Reed, Hutchison, and Craig).

21

Oels, 279 P.3d at 597 (citing Coughlin v. Gov’t Emps. Ins. Co. (GEICO),

69 P.3d 986, 988 (Alaska 2003)).

-8- 6752

did not contain the term “solely” in the purposes section.22 It couples this change with

the statutory interpretation maxim that the court is “obliged to give effect, if possible, to

every word Congress used.”23 But as noted above, the Estate’s construction seeks to

elevate the preamble over the substantive portion of the statute, giving effect to one word

in the preamble at the expense of making the enumerated exceptions meaningless.

The Estate also argues federal statutes do not preempt state common law

“unless that was the clear and manifest purpose of Congress.”24 Coxe responds that the

Estate’s argument relies on authorities discussing implied preemption, not express

preemption. Coxe is correct: when a federal law contains an express preemption clause,

the court “focus[es] on the plain wording of the clause, which necessarily contains the

best evidence of Congress’[s] preemptive intent.”25 The PLCAA expressly preempts

state common law by requiring that state courts immediately dismiss qualified civil

liability actions.26

In light of the PLCAA’s text and legislative history, Congress’s purpose

and intent was to bar any qualified civil liability action not falling within a statutory

exception. Our conclusion is supported by other courts that have held the PLCAA bars

22

Compare S. 1805, 108th Cong. § 2(b)(1) (2003), with 15 U.S.C. §

7901(b)(1).

23

Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979).

24

Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quoting Rice v. Santa

Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

25

Chamber of Commerce of U.S. v. Whiting, 131 S. Ct. 1968, 1977 (2011)

(quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993)).

26

15 U.S.C. § 7902.

-9- 6752

simple negligence claims.27 The Estate attempts to distinguish Ileto v. Glock,28 the

authority the superior court relied on, arguing that the plaintiffs in Ileto did not allege a

statutory violation and that the claim was against manufacturers and distributors, not a

dealer. These differences do not change Ileto’s holding that the PLCAA bars a simple

negligence claim.29

B. The PLCAA Is Constitutional.

“[A] party raising a constitutional challenge to a statute bears the burden

of demonstrating the constitutional violation. A presumption of constitutionality applies,

and doubts are resolved in favor of constitutionality.”30

1. The doctrine of constitutional avoidance is not applicable.

The Estate argues that the superior court erred by not interpreting the

PLCAA in a manner avoiding constitutional questions arising from the elimination of

general negligence claims. Coxe responds that the doctrine of constitutional avoidance

applies only where an ambiguous statute can be interpreted in a manner either violating

the constitution or not. Coxe argues the PLCAA is not ambiguous and does not violate

27

See Ileto v. Glock, 565 F.3d 1126, 1135-36 (9th Cir. 2009); Adames v.

Sheahan, 909 N.E.2d 742, 760-62 (Ill. 2009) (analyzing a failure to warn claim); see also

Gilland v. Sportsmen’s Outpost, Inc., 2011 WL 2479693, at *16 (Conn. Super. May 26,

2011); cf. Ryan v. Hughes-Ortiz, 959 N.E.2d 1000, 1006-07 (Mass. App. 2012) (barring

qualified civil liability action that does not fall under PLCAA enumerated exceptions).

28

565 F.3d 1126.

29

Id. at 1135-36.

30

Harrod v. State, Dep’t of Revenue, 255 P.3d 991, 1000-01 (Alaska 2011)

(quoting State, Dep’t of Revenue v. Andrade, 23 P.3d 58, 71 (Alaska 2001)); see also

SeaRiver Maritime Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 669 (9th Cir. 2002)

(“Statutes are presumed constitutional.”) (citing Heller v. Doe, 509 U.S. 312, 320

(1993)).

-10- 6752

the constitution. The United States echoes Coxe’s position.

The doctrine of constitutional avoidance “is a tool for choosing between

competing plausible interpretations of a statutory text.”31 Under this tool, “as between

two possible interpretations of a statute, by one of which it would be unconstitutional and

by the other valid, [this court’s] plain duty is to adopt that which will save the Act.”32

But, as discussed above, the PLCAA is not ambiguous. And, as discussed below, the

PLCAA is not unconstitutional. The superior court therefore did not err with respect to

the doctrine of constitutional avoidance.

2. The PLCAA does not infringe on Alaska’s sovereign right to

allocate its lawmaking function under the Tenth Amendment.

The Estate argues that the PLCAA violates Alaska’s sovereignty by

“dictating to Alaska how it must conduct its lawmaking function with respect to gun

seller liability.” The Estate contends it is beyond Congress’s power to prohibit Alaska

courts from imposing common law negligence standards while simultaneously allowing

liability to be imposed if the legislature adopts statutory standards.33 Coxe and the

United States counter that the preemptive effect of the PLCAA is within Congress’s

power and the PLCAA does not commandeer state government.

Under the Tenth Amendment “Congress cannot compel the States to enact

31

Clark v. Martinez, 543 U.S. 371, 381-82 (2005) (citing Rust v. Sullivan, 500

U.S. 173, 191 (1991)); see also Bigley v. Alaska Psychiatric Inst., 208 P.3d 168, 184

(Alaska 2009) (interpreting ambiguous statute to avoid constitutional problems).

32

Rust, 500 U.S. at 190 (1991) (quoting Blodgett v. Holden, 275 U.S. 142,

148 (1927)).

33

See 15 U.S.C. § 7902 (barring qualified civil liability actions in state

courts); 15 U.S.C. § 7903(5)(A)(ii)-(iii) (creating exceptions for negligence per se and

knowing violations of state firearms statutes from the definition of qualified civil liability

actions).

-11- 6752

or enforce a federal regulatory program.”34 But “state courts cannot refuse to apply

federal law — a conclusion mandated by the terms of the Supremacy Clause.”35 And

where Congressional action does not commandeer states or state actors, the Tenth

Amendment reflects Congress’s limitation to act within its enumerated powers.36

The PLCAA does not compel Alaska’s legislature to enact any law, nor

does it commandeer any branch of Alaska’s government. Although expressly

preempting conflicting state tort law, the PLCAA allows Alaska’s legislature to create

liability for harms proximately caused by knowing violations of statutes regulating

firearm sales and marketing.37 The Estate does not challenge Congress’s power to enact

the PLCAA, and because it is within Congress’s enumerated powers and does not

commandeer state actors, the PLCAA does not violate the protections of the Tenth

Amendment. We note that the Second Circuit Court of Appeals and the Illinois Supreme

Court have come to the same conclusion and rejected Tenth Amendment challenges to

the PLCAA.38

3. The PLCAA does not violate separation of powers.

34

Printz v. United States, 521 U.S. 898, 935 (1997); see also New York v.

United States, 505 U.S. 144, 149 (1992).

35

Printz, 521 U.S. at 928 (citing Testa v. Katt, 330 U.S. 386 (1947)).

36

New York v. United States, 505 U.S. 144, 155-56 (1992) (“If a power is

delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any

reservation of that power to the States; if a power is an attribute of state sovereignty

reserved by the Tenth Amendment, it is necessarily a power the Constitution has not

conferred on Congress.”).

37

15 U.S.C. § 7903(5)(A)(iii).

38

City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 397 (2d Cir. 2008);

Adames v. Sheahan, 909 N.E.2d 742, 764-65 (Ill. 2009).

-12- 6752

The Estate argues the PLCAA is unconstitutional under the separation of

powers principles announced in United States v. Klein 39 and Plaut v. Spendthrift Farm,

Inc.40 because Congress directly instructed the courts to dismiss all cases falling into a

certain category. Coxe and the United States respond that the PLCAA merely preempts

state law and creates a new legal standard. The United States adds that Klein and Plaut

apply only if Congress attempts to decide a pending case’s outcome and that the Estate’s

wrongful death action was filed three years after the PLCAA’s passage. The United

States also argues that “separation of powers principles constrain Congress’s conduct

only with respect to Article III federal courts.”

Klein’s exact holding is somewhat confusing,41 but the Estate is correct that

Klein stands for the general proposition that Congress cannot infringe on judicial

power.42 In Plaut the United States Supreme Court clarified the limitation on Congress’s

ability to affect a pending case:

Having achieved finality, however, a judicial decision

becomes the last word of the judicial department with regard

to a particular case or controversy, and Congress may not

39

80 U.S. 128 (1871).

40

514 U.S. 211 (1995).

41

See Gordon G. Young, Congressional Regulations of Federal Courts’

Jurisdiction and Processes: United States v. Klein Revisited, 1981 W IS . L. REV . 1189,

1195 (1981) (“The Klein opinion combines the clear with the delphic. Chief Justice

Chase’s excessively broad and ambiguous statements for the majority provide the delphic

elements in Klein. His statements have permitted Klein to be viewed as nearly all things

to all men.”).

42

Klein, 80 U.S. at 146-47; see also ERWIN CHEMERINSKY , FEDERAL

JURISDICTION 190 (5th ed. 2007) (noting that Klein “stands for the much more limited

principle that Congress cannot limit the Supreme Court’s jurisdiction in a manner that

violates other constitutional provisions”).

-13- 6752

declare by retroactive legislation that the law applicable to

that very case was something other than what the courts said

it was.[43]

The Estate is essentially correct that these cases hold that “Congress cannot direct the

outcome of a pending case without changing the substantive law underlying the suit.”

But as the United States points out, the PLCAA was passed in 2005 and the Estate did

not file suit until 2008. The PLCAA created new substantive law governing the Estate’s

claims and does not violate the principles announced in Klein and Plaut.

Every other court to consider a separation of powers challenge to the

PLCAA has rejected it.44 The Second Circuit Court of Appeals stated the PLCAA

“permissibly sets forth a new rule of law that is applicable both to pending actions and

to future actions.”45 The Ninth Circuit Court of Appeals stated “[t]he PLCAA applies

only to pending and future cases and does not purport to undo final judgments of the

judiciary.”46 We agree, and because we hold the PLCAA does not violate separation of

powers in this case, we do not consider the United States’s argument that separation of

powers principles do not apply to the relationship between Congress and state courts.

4. The PLCAA does not violate federal due process by denying the

Estate’s right to seek redress in the courts.

The Estate argues that the PLCAA violates federal rights of access to the

courts by “wholly eliminating the common law rights of Plaintiffs against particular

43

Plaut, 514 U.S. at 227 (emphasis omitted).

44

Ileto v. Glock, 565 F.3d 1126, 1139-40 (9th Cir. 2009); City of New York

v. Beretta U.S.A. Corp., 524 F.3d 384, 395-96 (2d Cir. 2008); Estate of Charlot v.

Bushmaster Firearms, Inc., 628 F. Supp. 2d 174, 184 (D.D.C. 2009); Dist. of Columbia

v. Beretta U.S.A. Corp., 940 A.2d 163, 172-73 (D.C. 2008).

45

City of New York, 524 F.3d at 395.

46

Ileto, 565 F.3d at 1139.

-14- 6752

tortfeasors who have caused them harm, without providing any alternate remedy.” Coxe

counters that the PLCAA limits, but does not eliminate, common law remedies. The

United States does not directly address the remedy elimination issue, instead framing the

court access issue as predicated on the existence of an underlying cause of action. This

raises two questions: (1) does the PLCAA infringe on the constitutional right of access

to the courts; and (2) does Congress have the power to eliminate a common law right?

a. The PLCAA does not infringe on the constitutional right

of access to the courts.

The federal constitutional right of access to the courts is a fundamental

right47 of uncertain origin.48 But for a potential plaintiff, the right to access requires an

“underlying cause of action.”49 The Second Circuit Court of Appeals has rejected an

identical right to access challenge to the PLCAA, stating: “The PLCAA immunizes a

specific type of defendant from a specific type of suit. It does not impede, let alone

entirely foreclose, general use of the courts by would-be plaintiffs . . . .”50

We agree with the Second Circuit Court of Appeals — the PLCAA does

not infringe on the Estate’s right to access the courts.

b. Because Congress has not completely eliminated a

common law remedy, we do not decide whether doing so

is within Congress’s powers.

The Estate first cites a dissenting opinion in Fein v. Permanente Medical

47

Tennessee v. Lane, 541 U.S. 509, 533-34 (2004).

48

Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002) (citing cases

describing different constitutional provisions to which right has been tied).

49

Id. at 415.

50

City of New York, 524 F.3d at 398.

-15- 6752

Group51 to support its argument that Congress does not have the power to eliminate

common law rights. The precedential value of a dissent from a dismissal of certiorari

aside, the Fein dissent simply noted the issue was undecided.52 The Estate next cites

Marbury v. Madison,53 Poindexter v. Greenhow,54 and Truax v. Corrigan55 in support of

its position. But to the extent these cases have not been overruled in relevant part or the

statements relied upon are not dicta, they are distinguishable: each discusses the

elimination of a previously vested property right. As the United States Supreme Court

has stated: “[A] person has no property, no vested interest, in any rule of the common

51

474 U.S. 892 (1985) (White, J., dissenting from dismissal of certiorari).

52

Id. at 894-95. Justice White stated:

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, thus appears to be an issue unresolved by

this Court, and one which is dividing the appellate and

highest courts of several States.

53

5 U.S. (1 Cranch) 137, 163 (1803) (“[I]t is a general and indisputable rule,

that where there is a legal right, there is also a legal remedy by suit or action at law,

whenever that right is invaded.” (quoting 3 W ILLIAM BLACKSTONE , COMMENTARIES

*23)).

54

114 U.S. 270, 303 (1885) (“No one would contend that a law of a state,

forbidding all redress by actions at law for injuries to property, would be upheld in the

courts of the United States, for that would be to deprive one of his property without due

process of law.”).

55

257 U.S. 312, 330 (1921) (“[A] statute whereby serious losses inflicted by

such unlawful means are in effect made remediless, is, we think, to disregard

fundamental rights of liberty and property and to deprive the person suffering the loss

of due process of law.”).

-16- 6752

law.”56

Other courts considering similar PLCAA challenges have rejected them.57

The Ninth Circuit Court of Appeals noted the absence of case law holding that the

elimination of common law remedies is a due process violation and explained that the

PLCAA only limited, not eliminated, common law remedies.58 The District of Columbia

Court of Appeals held that because “Congress did not deprive injured persons of all

potential remedies against manufacturers or sellers of firearms that discharge causing

them injuries,” it did not need to consider a claim that Congress could not eliminate a

cause of action.59

We follow these courts’ reasoning and reject the Estate’s PLCAA challenge

on these grounds.

5. The PLCAA does not violate equal protection.

The Estate argues the PLCAA violates the Fifth Amendment’s guarantee

of equal protection under the law. It argues the PLCAA should be subject to strict

scrutiny review because it violates the fundamental right of access to the courts. In the

alternative, the Estate argues the PLCAA cannot withstand even rational basis review.

It argues the PLCAA is not rational because it “irrationally shields from liability

negligent gun sellers who Congress intended not to shield” and violates equal protection

by treating potential plaintiffs differently depending on applicable state law.

56

Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 88 n.32

(1978) (quoting Second Emp’rs Liab. Cases, 223 U.S. 1, 50 (1912)).

57

Ileto. v. Glock, 565 F.3d 1126, 1143-44 (9th Cir. 2009); Dist. of Columbia

v. Beretta U.S.A. Corp., 940 A.2d 163, 177 n.8 (D.C. 2008).

58

Ileto, 565 F.3d at 1143-44.

59

Dist. of Columbia, 940 A.2d at 177 n.8.

-17- 6752

Coxe argues rational basis review is the correct standard, plaintiffs in

different states are not similarly situated, and the PLCAA passes rational basis review.

The United States also argues for the application of rational basis review and that the

PLCAA passes such review.

a. Rational basis review applies to the Estate’s challenge.

Because this case involves application of the equal protection clause of the

Fifth Amendment to the United States Constitution, we are bound to use the federal

tiered approach rather than our sliding scale approach.60 Under the federal approach,

“[u]nless a classification trammels fundamental personal rights or is drawn upon

inherently suspect distinctions such as race, religion, or alienage,” the law is presumed

valid and must only be “rationally related to a legitimate state interest.” 61 Courts

considering identical challenges to the PLCAA have applied rational basis review.62 We

agree with these courts — because the PLCAA does not implicate a fundamental right

or a suspect class, rational basis review applies to the Estate’s equal protection challenge.

b. The PLCAA passes rational basis review.

“The first step in equal protection analysis is to identify the . . .

classification of groups.”63 We must then identify and compare similarly situated

60

See State v. Erickson, 574 P.2d 1, 11-12 (Alaska 1978) (adopting Alaska’s

sliding scale test for equal protection while noting being bound by United States

Supreme Court precedent for federal constitutional questions).

61

City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976).

62

Ileto, 565 F.3d at 1140-41; City of New York v. Beretta U.S.A. Corp., 401

F. Supp. 2d 244, 294-95 (E.D.N.Y. 2005).

63

Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th Cir. 1995) (quoting

Country Classic Dairies, Inc. v. State of Mont., Dep’t of Commerce Milk Control Bureau,

847 F.2d 593, 596 (9th Cir.1988)).

-18- 6752

groups.64 The “similarly situated” analysis references the subject of the law and any

difference must pre-exist the statutory classifications.65 The Estate argues the PLCAA

classifies potential plaintiffs by reference to the laws of individual states, and treats

similarly situated potential plaintiffs differently based on different state law. Coxe and

the United States argue that potential plaintiffs in different states are not similarly

situated. Because we conclude below that the PLCAA passes rational basis review, we

assume without deciding that it treats similarly situated groups differently.

The equal protection clause “is not a license for courts to judge the wisdom,

fairness, or logic of legislative choices.”66 Under rational basis review a statute must be

upheld “if there is any reasonably conceivable state of facts that could provide a rational

basis for the classification.”67 “[B]arring irrational or arbitrary conduct, Congress 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.”68 Here, Congress found certain types of tort suits

threatened constitutional rights, destabilized industry, and burdened interstate

commerce.69 Protecting constitutional rights and interstate commerce is a legitimate

purpose and barring certain types of tort suits while allowing others is a rational way to

pursue this legitimate purpose. Other courts have rejected equal protection challenges

64

Id.

65

Williams v. Vermont, 472 U.S. 14, 27 (1985).

66

F.C.C. v. Beach Cmmc’ns, Inc., 508 U.S. 307, 313 (1993).

67

Id.

68

Ileto v. Glock, 565 F.3d 1126, 1140 (9th Cir. 2009) (quoting Lyon v. Agusta

S.P.A., 252 F.3d 1078, 1086 (9th Cir. 2001)).

69

15 U.S.C. § 7901(a)(6)-(7).

-19- 6752

to the PLCAA,70 and again, we agree — the PLCAA does not violate the Estate’s equal

protection right.

C. We Remand For The Superior Court’s Further Review Of The

Evidence That Should Be Considered For The Summary Judgment

Motion On The Estate’s Claims Under PLCAA Exceptions.

1. Overview

The Estate asserted claims based on knowing violations of laws related to

the sales of firearms, negligence per se, and negligent entrustment, and argues that a

genuine dispute of material fact precluded summary judgment dismissing these claims.

Coxe responds that there is no dispute of material fact, only “unsupported assumptions

and speculation.” This dispute is whether on the facts of this case a reasonable inference

can be drawn that Coxe voluntarily transferred or illegally sold Coday the rifle, or

whether the only reasonable inference to be drawn is that Coday stole the rifle from

Coxe.

2. Theft of a firearm does not support liability under claims

excepted from the PLCAA.

a. Knowing violation of firearms laws and negligence per se

The PLCAA allows an action against a firearms dealer who “knowingly

violated a State or Federal 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.”71 The

PLCAA also allows actions for negligence per se.72 Because the Estate only alleged

violations of statutes addressing the sale and marketing of firearms, the two are

70

Ileto, 565 F.3d at 1140-41; City of New York v. Beretta U.S.A. Corp., 401

F. Supp. 2d 244, 294-95 (E.D.N.Y. 2005).

71

15 U.S.C. § 7903(5)(A)(iii).

72

15 U.S.C. § 7903(5)(A)(ii).

-20- 6752

interchangeable in this context and we discuss them together.

The Estate asserts a jury could find Coxe knowingly violated firearms laws

even if Coday stole the rifle. It asserts violations of laws requiring a background check,73

completion of a transaction record form,74 precluding transfers if there is reasonable

cause to believe the transferee cannot legally possess a firearm,75 and prohibiting aiding

and abetting unlawful possession.76 Because these laws apply to “transfers” or

“disposals” of firearms in addition to sales,77 the Estate argues they apply to thefts, citing

United States v. Monteleone78 for the proposition that a transfer or disposal of a firearm

“occurs when a person ‘comes into possession, control, or power of disposal of a

firearm.’ ”79 Coxe responds that the statutory requirements apply only to intentional

transfers.

A firearms dealer must initiate a background check prior to the transfer of

73

18 U.S.C. § 922(t) (2006).

74

18 U.S.C. § 922(m); 27 C.F.R. § 478.124.

75

18 U.S.C. § 922(d).

76

18 U.S.C § 2(a); 18 U.S.C. § 922(g).

77

18 U.S.C. § 922(t) (requiring that licensed dealers conduct background

checks before transferring firearms); 27 C.F.R. § 478.124 (requiring a firearm

transaction record, Form 4473, before a licensed dealer disposes of a firearm); 18 U.S.C.

§ 922(d) (barring sales and disposals of firearms when there is reasonable cause to

believe the transferee cannot legally receive the firearm).

78

77 F.3d 1086 (8th Cir. 1996).

79

Id. at 1092 (quoting Huddleston v. United States, 415 U.S. 814, 823

(1974)). The Estate argues Coxe “violated his duty to take affirmative steps to keep guns

out of the hands of criminals.” But no statutes require such measures.

-21- 6752

a firearm.80 A knowing violation of this requirement is a crime.81 Likewise, a knowing

violation of the transaction record requirement is a crime.82 And a knowing violation of

the prohibition on transferring a firearm to a prohibited person is a crime.83 Because each

statutory violation requires a knowing state of mind, we do not agree that a dealer faces

criminal liability under these statutes when a firearm is stolen.

The Estate’s reliance on Monteleone is misplaced. In that case the Eigth

Circuit Court of Appeals explained that “dispose” means to transfer a firearm so the

transferee acquires possession, and explained that Monteleone disposed a firearm when

he gave it to his half-brother.84 Unlike the case before us, there was no dispute in

Monteleone whether the transferor knew that the transferee would possess the firearm.85

Coxe, however, asserts that the firearm was stolen and he did not know that Coday

would acquire it.

We agree with the superior court that the Estate’s “argument requires the

conclusion that a gun shop is required to perform a background check [and] complete a

80

18 U.S.C. § 922(t).

81

18 U.S.C. § 924(a)(5) (“Whoever knowingly violates subsection (s) or (t)

of section 922 shall be fined under this title, imprisoned for not more than 1 year, or

both.”).

82

18 U.S.C. § 922(m) (“It shall be unlawful for any licensed . . . dealer . . .

knowingly to make any false entry in, to fail to make appropriate entry in, or to fail to

properly maintain, any record . . . required . . . pursuant to section 923 of this chapter

. . . .”).

83

18 U.S.C. § 924(a)(2) (“Whoever knowingly violates subsection . . . (d)

. . . of section 922 shall be fined as provided in this title, imprisoned not more than 10

years, or both.”).

84

United States v. Monteleone, 77 F.3d 1086, 1088, 1092 (8th Cir. 1996).

85

Id. at 1088-89.

-22- 6752

federal firearms form before having a gun stolen.” The more logical conclusion is that

a firearm theft precludes a dealer’s liability under the PLCAA’s knowing violation of

statute and negligence per se exceptions. For this same reason, the Estate’s arguments

regarding aiding and abetting an unlawful disposal are also unavailing — for aiding and

abetting to apply, a defendant must “participate in [the criminal act] as in something that

he wishes to bring about, that he seek by his action to make it succeed.”86 A theft

precludes aiding and abetting.

The Estate’s knowing violation and negligence per se claims cannot survive

under Coxe’s version of the events — the firearm’s theft. But if there is a factual dispute

whether Coday stole the rifle or whether Coxe sold the rifle or otherwise knowingly

transferred it to Coday, summary judgment was not appropriate on these claims.

b. Negligent entrustment

The Estate argues the negligent entrustment exception could apply because

a jury could find Coxe voluntarily transferred the rifle to Coday through a sham

transaction and because, even under Coxe’s version of events, he supplied Coday the

rifle. Coxe responds that only conjecture supports the voluntary transfer assertion, and

negligent entrustment requires a knowing or voluntary transfer of the item.

The PLCAA exempts negligent entrustment actions from the qualified civil

liability action definition.87 The PLCAA defines negligent entrustment as:

the supplying of a qualified product by a seller for use by

another person when the seller knows, or reasonably should

know, the person to whom the product is supplied is likely to,

and does, use the product in a manner involving unreasonable

86

Nye & Nissen v. United States, 336 U.S. 613, 619 (1949) (quoting United

States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938)).

87

15 U.S.C. § 7903(5)(A)(ii).

-23- 6752

risk of physical injury to the person or others.[88]

The PLCAA definition is substantially the same as the Restatement version

Alaska follows.89 Coxe concedes the Restatement does not use the word “knowingly,”

but argues the Restatement commentary and illustrations show knowing transfer of an

item. In contrast, the Estate relies on a dictionary definition of “supply” as “to provide

for” and “to make available for use.”

Negligent entrustment requires “the act of entrustment.” 90 The Second

Restatement of Torts § 308 provides:

It is negligence to permit a third person to use a thing or to

engage in an activity which is under the control of the actor,

if the actor knows or should know that such person intends or

is likely to use the thing or to conduct himself in the activity

in such a manner as to create an unreasonable risk of harm to

others.[91]

By using the term “permit,” the Restatement does not encompass thefts of a chattel,

especially where the person with control over the chattel is not on notice that the chattel

will be used “in a manner involving unreasonable risk of physical harm to . . . others.”92

The Virginia Supreme Court has held that negligent entrustment does not apply to

unauthorized use of a firearm where “[t]here was no evidence that [the defendant] ever

88

15 U.S.C. § 7903(5)(B).

89

See Nelson v. Progressive Cas. Ins. Co., 162 P.3d 1228, 1232 (Alaska

2007) (“Alaska recognizes the common law tort of negligent entrustment and follows the

definition in the Restatement (Second) of Torts § 390 (1965) . . . .”).

90

Id.

91

RESTATEMENT (SECOND ) OF TORTS § 308 (1965) (emphasis added).

92

Id. § 390; see also id. § 390 cmt. b (“The rule stated in this Section is a

special application of the rule stated in § 308 . . . .”).

-24- 6752

either permitted [the third party] to use the rifle or prohibited him from doing so.”93

The Estate’s negligent entrustment claim cannot survive under Coxe’s

version of the events — a firearm’s theft. But if there are factual disputes whether Coday

stole the rifle, or whether Coxe (1) sold or otherwise knowingly transferred the rifle to

Coday and (2) knew or should have known Coday intended or was likely to use the rifle

in a manner to create an unreasonable risk of harm to others, summary judgment was not

appropriate on this claim.

3. Was summary judgment warranted?

On a motion for summary judgment, the moving party bears the initial

burden of proving the absence of any dispute of material fact and “its entitlement to

judgment as a matter of law.”94 Once the moving party meets its initial burden, “the

burden shifts to the non-moving party to produce ‘admissible evidence reasonably

tending to dispute or contradict the movant’s evidence.’ ”95 In meeting their respective

burdens, the parties may use pleadings, affidavits, and any other material that is

admissible in evidence.96 In evaluating a motion for summary judgment, the court must

93

Kingrey v. Hill, 425 S.E.2d 798, 799 (Va. 1993); see also 37 A M . JUR .

PROOF OF FACTS 3D 1, § 19 (1996).

94

Egner v. Talbot’s, Inc., 214 P.3d 272, 278 (Alaska 2009) (quoting Alakayak

v. British Columbia Packers, Ltd., 48 P.3d 432, 447-48 (Alaska 2002)).

95

Cikan v. ARCO Alaska, Inc., 125 P.3d 335, 339 (Alaska 2005) (quoting

Philbin v. Matanuska–Susitna Borough, 991 P.2d 1263, 1265-66 (Alaska 1999)).

96

Okpik v. City of Barrow, 230 P.3d 672, 677 (Alaska 2010) (citing Witt v.

State, Dep’t of Corr., 75 P.3d 1030, 1034 (Alaska 2003) and Charles v. Interior Reg’l

Hous. Auth., 55 P.3d 57, 59 (Alaska 2002)).

-25- 6752

draw all reasonable inferences in favor of the non-moving party.97 “To create a genuine

issue of material fact there must be more than a scintilla of contrary evidence.”98

The Estate offered two expert affidavits to oppose summary judgment. One

expert concluded Coxe “elected to violate the intent, letter and spirit of the law,” based

on the lack of security measures at Rayco and missing firearms discovered in a 2008

audit.99 In his reply, Coxe failed to raise any evidentiary objections to the Estate’s expert

witness affidavits. Coxe argued that the evidence the Estate relied on gave rise only to

speculation and conjecture that he had some active complicity in Coday’s taking

possession of the rifle.

At oral argument the superior court questioned Coxe’s attorney about the

inferences that might be drawn from the expert witness affidavits. Coxe for the first time

suggested an evidentiary problem with the affidavits: “I don’t think you can use other

bad acts to infer that somebody acted in an improper or bad fashion on the day in

question. I think that’s inadmissible evidence.”100 The Estate’s attorney did not address

97

Id. (citing Witt, 75 P.3d at 1033).

98

Cikan, 125 P.3d at 339 (quoting Martech Const. Co. v. Ogden Envtl. Servs.,

Inc., 852 P.2d 1146, 1149 n.7 (Alaska 1993)).

99

Coxe admitted a 2008 audit revealed approximately 200 missing firearms

over a 10 to 12 year span. Other testimony reflected most of the firearms were later

located. The majority of the “missing” firearms apparently were the result of simple

clerical errors, where the firearm’s disposition went unrecorded.

100

See Alaska Evidence Rule 404(b)(1):

Evidence of other crimes, wrongs, or acts is not admissible if

the sole purpose for offering the evidence is to prove the

character of a person in order to show that the person acted

in conformity therewith. It is, however, admissible for other

purposes, including, but not limited to, proof of motive,

(continued...)

-26- 6752

the evidentiary issue during his argument.

The superior court’s summary judgment order mentions the expert opinions

only once, immediately before dividing the Estate’s evidence into categories. One

category was “evidence that Coxe allegedly violated federal [firearms] laws or otherwise

failed to properly secure [firearms] in his business on other occasions.”

The superior court expressly excluded evidence of other bad acts from its

consideration on the summary judgment motion:

Evidence of other alleged crimes, wrongs, or acts on other

occasions may be offered to show negligence on the part of

Coxe. But even if there was evidence that Coxe had

conducted sham transactions such as the one plaintiffs claim

he conducted on this occasion, such evidence cannot show

that Coxe had a propensity to act in that way, in order to raise

an inference that he acted in conformity with that propensity

on this occasion. In other words, evidence of Coxe’s conduct

on other occasions could show negligence, but such evidence

cannot show entrustment. (Emphasis in original.) (Citation

omitted.)

In this case the determination of whether an issue of fact bars summary

judgment is very close. But in response to a question from the superior court at oral

argument Coxe raised a new issue — to which the Estate did not respond — and the

superior court then relied on that new argument in its final decision. We are concerned

the Estate may not have had an appropriate opportunity to present arguments relating to:

(1) why the superior court’s evidentiary ruling on the expert witness affidavits might

have been erroneous; (2) whether the second part of Alaska Evidence Rule 404(b)(1)

100

(...continued)

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.

-27- 6752

might allow the evidence for some purposes;101 or (3) whether the evidence might have

been admissible under another rule.102

Accordingly we vacate the entry of summary judgment and remand for

further consideration of this evidentiary issue so critical to the summary judgment

analysis.

V. CONCLUSION

We AFFIRM the superior court’s rulings on the PLCAA’s construction and

constitutionality. We REMAND the remainder of the superior court’s decision on

summary judgment for further consideration.

101

See id.

102

On appeal the Estate offers an alternative basis for admission — Rule 406

(habit). Rule 406 requires “more than mere ‘tendency’ to act in a given manner, but

rather, conduct that is ‘semi-automatic’ in nature.” Mueller v. Buscemi, 230 P.3d 1153,

1157 n.11 (Alaska 2010) (quoting Simplex, Inc. v. Diversified Energy Sys., Inc., 847 F.2d

1290, 1293 (7th Cir. 1988)). Coxe’s previously missing firearms would not seem to rise

to the level of habit, but we leave it to the superior court to consider first.

-28- 6752