Opposition Brief — China North Industries Corp. v. Ileto

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No. 04-423 oe Court. US

IN THE NOV 23 2004

Supreme Court of the United States wc

CHINA NORTH INDUSTRIES CORP.,

A Chinese entity a/k/a Norinco,

Petitioner,

LILIAN S. ILETO, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UnNiTED STATES Court OF APPEALS

a FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

SAYRE WEAVER PETER NORDBERG*

THE EDUCATIONAL FUND TO BERGER & MONTAGUE, P.C.

Stop GUN VIOLENCE 1622 Locust Street

1023 15th Street, NW Philadelphia, PA 19103

Sixth Floor (215) 875-3000

Washington, DC 20005

Counsel for Respondents

* Counsel of Record

191174 ce

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

QUESTIONS PRESENTED

1. Whether this Court should grant certiorari review:

where the decision below involves only claims

arising under California law, and gives rise to no

Rule 10(a) ground for certiorari review;

where Petitioner itself removed the case from state

court to federal court, and never sought certification

of any state law questions to the California Supreme

Court, but now claims that the Ninth Circuit’s failure

to certify those questions sua sponte is a ground for

extraordinary relief;

where the judgment below is interlocutory and not

final, and Petitioner fails to identify a single issue

so fundamental to further conduct of the case that it

merits this Court’s extraordinary review now; and

where, reduced to its essence, and stripped of its

rhetoric and tone of moral outrage, the Petition

amounts to little more than Petitioner’s claim that

the Ninth Circuit’s interpretation of California law,

and of Merrill v. Navegar, 26 Cal. 4th 465, 110 Cal.

Rptr. 2d 370 (2001), was erroneous.

2. Whether state law tort claims seeking compensatory

damages for personal injuries caused by the negligent or

otherwise tortious distribution of a commercial product are

barred by the dormant Commerce Clause.

PARTIES TO THE PROCEEDINGS BELOW

With respect to Respondents, the Petition incorrectly lists

Joseph S. Ileto, deceased, as a party to these proceedings. The

Petition also incorrectly identifies Nathan Lawrence Powers as

appearing on behalf of a class of persons similarly situated.

Respondents did not reallege their class allegations in the First

Amended Complaint (see Pet. App. A, 6a-7a).

lil

TABLE OF CONTENTS

Page

OCucstions Presented ..... 2... ccc cise eee ene 1

Parties to the Proceedings Below .............-. li

OTe ee Tea aT Eee ee ili

Table of Cited Authorities ...............--005- v

TODIDGIADDONGICES ... 2 06sec eee c ese eeeens Xx

Statement Of the Case .... 0... ccc ccc cccesees l

eR SF iwcrehetcet ee sereeseees es l

Il. Factual Background .................... A

Hi. Proceedings Below .............020s06. 8

Reasons for Denying the Petition ............... 10

I. Summary Of Argument ................. 10

II. Petitioner Fails To Identify A Single Issue So

Fundamental To Further Conduct Of The Case

That This Court Should Depart From Its Well-

Settled Rule Against Reviewing Interlocutory

PIS Fis d vei tonivctescsectssiece 11

Ill. The Ninth Circuit Correctly Analyzed The

State Law Issues Under Erie R. Co. v.

Tompkins, 304 U.S. 64 (1938), And In Any

Event, An Allegedly Erroneous Reading Of

State Law Is Not A Ground For Certiorari

Review By This Court. ............+006. 19

Contents

Page

IV. The Ninth Circuit Correctly Held That a Tort

Suit Seeking Compensatory Damages Against

a Product Manufacturer Does Not Offend the

Commerce Clause. ...........-......... 27

RANI sd ais Mg yy kus coon venice aa 30

aeasatio

TABLE OF CITED AUTHORITIES

Page

FEDERAL CASES

American Construction Co. v. Jacksonville,

T. & K.W. Railway Co.,

LAE UIS. STZ CUS) base Oeink eee ieee 11

BMW of N. Am. v. Gore,

SIT US. SIP CIGD oon vc vec rvcveviwectenees 27, 28

Brotherhood of Locomotive Fireman v. Bangor &

Aroostook R. Co.,

SOO US. 327 CGE) oo nbc hckkg cas vane te tern 11

California v. ARC American Corp.,

490 U.S. 93 (1989) 0... ce ccccsscssscceccess 28

English v. General Electric Co.,

MES HOM niece ee 28

Equality Found of Greater Cincinnati, Inc. v.

City of Cincinnati,

SIS US. PAS CFD) ook ck chavo cctevedecvts 18

Erie R. Co. v. Tompkins,

306 U.S. GA(USSE) onc creer ccccvescccenne 19

Fresno Rifle and Pistol Club, Inc. v. Van De Kamp,

965 F.2d 723 (9th Cir. 1992) .......--eeeeees 29

Gregory v. Ashcroft,

pi Bes as | errr Pee ee. er 28

Ileto v. Glock, Inc., 194 F. Supp. 2d 1040 (C.D. Cal.

MO oc eee 10, 14, 15

Cited Authorities

Page

Ileto v. Glock, Inc., 349 F.3d 1191 (9th Cir. 2003)

‘146+ 8 O00 es 05D OGRE HOU bd Cee ee Up 10, 26

Leroy v. Great W. United Corp.,

$93 U.S. ATS UDIDD ois icvevad cance 18

Leavitt v. Jane L.,

518 U.S. 137 (1996) 2.2... 19

Richmond Boro Gun Club v. City of New York,

896 F. Supp. 276 (E.D.N.Y. 1995), aff'd, 97 F.3d

681 (2d Cir. 1996) .............0........... 29

Virginia Military Inst. v. United States,

508 U.S. 946 (1993) ©... 1]

Young v. Masci,

289 U.S. 253 (1933) «00... 0... eee. 27

STATE CASES

Cal. Rifle & Pistol Assn. y, City of West Hollywood,

66 Cal. App. 4th 1302, 78 Cal. Rptr. 2d 591 (1998)

‘18 een hands de biebewteneentiaa eens 13

City of San Diego v. United States Gypsum Co.,

30 Cal. App. 4th 575, 35 Cal. Rptr. 2d 876 (1994)

Hhe4ea nw Cues «wie eked a man eee ae ee 23, 24

Detroit Board of Educ. v. Celotex Corp.,

196 Mich. App. 694, 493 N.W.2d 513 (1992),

appeal denied, 444 Mich. 908, 512 N.W.2d 318

(BPO sented viata ieee eee han ie ee 24, 25

vii

Cited Authorities

Page

Doe vy. City of San Francisco,

136 Cal. App. 3d 509, 186 Cal. Rptr. 380 (1982)

eT er Pree ee er Te eT ee 13

Great Western Shows, Inc. v. County of Los Angeles,

27 Cal. 4th 853, 118 Cal. Rptr. 2d 746 (2002)

LEE PC ee Ore ee ee Loree Tee 12, 13, 14

Galvan v. Superior Court,

70 Cal. 2d 851, 76 Cal. Rptr. 642 (1969) ....... i 32

Merrill v. Navegar,

26 Cal. 4th 465, 110 Cal. Rptr. 2d 370 (2001) .. passim

Mitchell v. Gonzales,

54 Cal. 3d 1041, 1 Cal. Rptr. 2d 913 (1991) .... 20

Nordyke. v. King,

27 Cal. 4th 875, 118 Cal. Rptr. 2d 761 (2002) .. 13

Olsen v. McGillicuddy,

15 Cal. App. 3d 897, 93 Cal. Rptr. 530 (1971) .. 13

People ex rel. Gallo v. Acuna,

14 Cal. 4th 1090, 60 Cal. Rptr. 2d 277 (1997),

cert. denied, 521 U.S. 1121 (1997) ........005- 12, 23

Rowland .. Christian,

69 Cal. 2d 108, 70 Cal. Rptr. 97 (1968) ...... 2, 20, 21

San Diego Gas & Electric Co. v. Superior Court,

13 Cal. 4th 893, 55 Cal. Rptr. 2d 724 (1996) ....24, 25

vill

Cited Authorities

Page

Selma Pressure Treating Co. v. Osmose Wood

Preserving, Inc.,

221 Cal. App. 3d 1601, 271 Cal. Rptr. 596 (1990)

PO EPP re er TTP TET iT Tee 25

Sippel v. Nelder,

24 Cal. App. 3d 173, 101 Cal. Rptr. 89 (1972) .. .13, 14

STATUTES

ait toe | «Serer re eee 28

RES. Com Bt) Sr reer err eee 9, 25

28 U.S.C. § 1603 ........ cece reece ceccccccees 9

Cal. Civ. Code § 1714 2... cc csccecscccccseses passim

Cal. Civ. Code § 1714.4 ........ Serer rr et passim

Cal. Civ. Code § 3470 ....... cee ee cere eeeerees 10

Cal. Civ. Code § 3479 ...... cee ee cece eeeenes 3, 23, 24

Cal. Civ. Code § 3480 ........ eee creer eeeeee 3, 10, 24

Cal. Gov. Code § 53071 .....-eeeeeeeees 12, 13, 14, 18

Cal. Pen. Code § 12026 ........-. eee eereeecees 14

1 COE or ere 16

Cited Authorities

Page

RULES

RW sido a bw S 50s eet eie ees i, 18, 19

oe Be as rere yer re 9,11

Pa a GE OD ok bb aa nad cece dees Ces ewies 10

Ca es RP nde eR sedusneseeesyuneueseeees 25

TABLE OFAPPENDICES

Page

Appendix A — Cal. Civ. Code § 1714

eer errr errr la

Appendix B — Cal. Civ. Code § 1714

| PETE eT eT ee eee ee 3a

Appendix C — Cal. Civ. Code § 1714.4

IE << 50h 040 v Nhe own ek eee ake 4a

Appendix D — Cal. Civ. Code § 3479 .......... Sa

Appendix E — Cal. Civ. Code § 3480 ........... 6a

STATEMENT OF THE CASE

I. Introduction

Reviewing de novo a judgment entered on an order granting

Petitioner’s motion to dismiss, the Ninth Circuit Court of

Appeals addressed the following issues below:

(1) whether, under California law, a manufacturer who

distributes its dangerous product in ways that negligently

facilitate the product’s availability to criminals owes a duty of

care to third parties who are then injured through criminal use

of the product;

(2) whether, under California law, a complaint states a

claim in public nuisance, where it alleges that a firearms

manufacturer engages in the foregoing conduct on a systematic

and ongoing basis, thereby giving sustenance to an illegal

firearms market;

(3) whether any California statute immunizes a firearms

manufacturer from liability in the foregoing circumstances; and

(4) whether the dormant Commerce Clause immunizes

manufacturers from liability in such circumstances.

As a federal court effectively sitting in diversity, the Ninth

Circuit was bound, as to the negligence claims, by California’s

statutory declaration that “every person is responsible for injury

occasioned to another by his want of ordinary care in the

management of his property or person.” Cal. Civ. Code

§ 1714(a). App. A, B. As the California Supreme Court has

acknowledged, this statute sets forth a civil law, not a common

law principle:

This code section, which has been unchanged in our

law since 1872, states a civil law and not acommon

law principle. ... Although it is true that some

exceptions have been made to the general principle

that a person is liable for injuries caused by his failure

to exercise reasonable care in the circumstances, it

is clear that in the absence of a statutory provision

declaring an exception to the fundamental principle

enunciated by section 1714 of the Cal. Civ. Code,

no such exception should be made unless clearly

supported by public policy.

Rowland v. Christian, 69 Cal. 2d 108, 112, 70 Cal. Rptr. 97, 99-

100 (1968) (emphasis added) (citations omitted); see also

Merrill v. Navegar, Inc., 26 Cal. 4th 465, 477, 110 Cal. Rptr. 2d

370, 379 (2001) (“we begin always with the command of...

section 1714, subdivision (a)”).

In California, then, the question is not whether or under

what circumstances the common law supports imposition

of a duty of care on a product marfacturer, but rather

under what statutory or judicially created exception to section

1714(a), if any, a manufacturer is excused from liability for

injuries that his negligent conduct is a substantial factor in

causing. Correctly concluding that no California statute

immunizes Petitioner against the mandate of section 1714(a)

on the facts alleged in the complaint, the Ninth Circuit went on

to consider, and reject, the proposition that clear public policy

requires that Petitioner be excused from the duty of care imposed

by section 1714(a). In short, the analysis conducted by the Ninth

Circuit was the precise analysis mandated by the California

Legislature.

Petitioner and the dissenting opinions below thus turn

California law upside down when they assert that the Ninth

Circuit engaged in “judicial activism” and violated federalism

principles by creating a “new common law liability” in

California. Whether a firearms manufacturer may be held liable

in negligence because it owes a duty of care in how it distributes

its firearms is a question that California has addressed, and

answered affirmatively, not by common law but by statute. In

applying section 1714(a), the Ninth Circuit was following

legislatively enacted state law, not creating new common law.

If anything, the alternative for which Petitioner clamors — that

is, ignoring the state legislative mandate of Cal. Civ. Code

§ 1714(a) — would have constituted the true affront to

federalism principles.

Meanwhile, a duty of ordinary care in how a manufacturer

chooses to distribute its products is not a duty “to refrain from

the production, sale and distribution of a lawful non-defective

product,” as Petitioner urges. See Pet. at ii, 11. By so stating,

Petitioner appears to assume that the distribution of firearms

can only occur in the absence of ordinary care.

Equally unmeritorious is Petitioner’s claim that the Ninth

Circuit sat not as a court but a “superlegislature” in deciding

that Respondents’ complaint states a claim in public nuisance

under California law. Preferring its own definition of public

nuisance to that of the California Legislature, Petitioner

incorrectly claims that under California law, public nuisance

concerns only the use or condition of property, not products —

a proposition for which Petition relies primarily on twelve words

from a private nuisance case, quoted out of context. Pet. at 11.

The Ninth Circuit, by contrast, relied on the definition of

public nuisance enunciated by the California Legislature. Under

Cal. Civ. Code § 3479, a nuisance is:

Anything which is injurious to health, including, but

not limited to, the illegal sale of controlled

substances, or is indecent or offensive to the sense,

or an obstruction of the free use of property, so as to

interfere with the comfortable enjoyment of life or

property, or unlawfully obstructs the free passage or

use, in the customary manner, of any navigable lake,

or river, bay, stream, canal, or basin, or any public

park, square, street, or highway, is a nuisance.

Id. (emphasis added). App. D. Under California Cal. Civ. Code

§ 3480, a public nuisance is “one which affects at the

same time an entire community or neighborhood, or any

considerable number of persons.” App. E. The knowing

provision of weapons to criminals and other persons who are

legally incompetent to possess them easily satisfies the plain

language of these definitions.

In short, as to both the negligence and the public nuisance

claims, the Ninth Circuit’s analysis was thoroughly grounded

in California statutes, which themselves embody the public

policies of the California Legislature. The Ninth Circuit

painstakingly applied the controlling California Supreme Court

and intermediate appellate decisions interpreting those statutes.

Because Petitioner does not agree with the public policies of

the California Legislature, Petitioner ignores them. Had the

Ninth Circuit done so, it would have been acting as a

superlegislature. Instead, it fulfilled its proper role as a federal

court sitting in diversity, as it was required to do after Petitioner

removed this case from state court.

II. Factual Background

This Petition arises out of an interlocutory judgment by the

Ninth Circuit, reversing a trial court judgment entered on an

order dismissing Respondents’ first amended complaint (“FAC”)

for failure to state a claim. In brief, the FAC alleges that Petitioner

Norinco knowingly and intentionally engages in marketing and

distribution practices designed to supply its firearms to criminals

and other persons who are prohibited by law from purchasing

and possessing them, including mentally unstable individuals.

Record 9, § 1. Further, the FAC alleges that as a result of these

practices, Buford Furrow, an avowed neo-Nazi with a history

of mental instability and a felony conviction, obtained and

possessed an illegally shortened Norinco model 320, 9 mm rifle

(“Norinco 320”) in addition to six other firearms. Record 13,

4] 23. The FAC also alleges that on August 10, 1999, Furrow

injured and terrorized the minor plaintiffs in an assault on them

at their summer camp at the Jewish Community Center in

Granada Hills, California (“JCC”), Record 14, {J 24-25, and

later that day murdered Joseph Ileto, a U.S. Postal worker of

Filipino descent, whom he shot with a Glock 26 handgun.

Record 39, | 148.

The FAC alleges that 9mm casings were found at both

locations, and that the Norinco 320 and the Glock 26 are the

only 9mm weapons Furrow possessed during the shootings.

Record 14, 9 27; Pet. App. A, 6a n.5. Accordingly, Petitioner is

incorrect in its statement that Respondents did not allege any

causal link between the Norinco 320 and Respondents’ injuries.

(Compare FAC ¥ 27, found at Record 14, with Pet. at 4.)

Likewise, Petitioner’s description of Furrow’s assaults as

“random and unexpected” is not supported by the record below.

As pled in the FAC, Norinco deliberately engages in various

distribution practices (which include, but are not limited to,

oversupply of the legal market) with the intent of supplying

prohibited persons such as Furrow with their products. Record

15, | 31. These individuals — convicted felons, mentally

unstable persons, juveniles, and others — are prohibited by law

from purchasing and possessing firearms precisely because the

law presumes they cannot be trusted to act responsibly and

predictably with them. Pet. App. A 270. In other words, in the

eyes of the lawmakers, it is so foreseeable that a person such as

Buford Furrow may be dangerous and violent when armed with

a firearm that they have declared him incompetent to purchase

and possess them. His violent acts when so armed therefore can

hardly be characterized as “unexpected.”

At the time of his assault on the JCC, Furrow is believed to

have had an arsenal of firearms in his possession. Record 13-

14, ¥ 23. His firearms included at least the following: Glock’s

model 26, a 9 mm handgun; Norinco’s model 320, a 9 mm

illegally shortened rifle; a Maadi model RML, 17.62 caliber

automatic rifle; a Bushmaster model XM15-E25, a .223 caliber

rifle; two Imbel model L1A1, a .308 caliber rifle; and a Davis

Industries’ model D-22, a .22 caliber handgun. Record 13-14,

q 23.

Furrow entered the JCC and shot and injured three very

young children, one teenager, and one adult. Two of the children

shot are plaintiffs Joshua Stepakoff and Benjamin Kadish, both

campers at the JCC at the time. Joshua, six years old at the time

of the shooting, was shot in his left lower leg and his left hip,

fracturing or breaking a bone. Benjamin, five at the time, was

shot in the buttocks and in his left leg, fracturing his left femur,

severing an artery, and causing major internal injuries. Plaintiff

Mindy Finkelstein, a sixteen-year-old camp counselor at

the time of the shooting, was shot twice in her right leg.

These plaintiffs suffered severe, life-threatening bodily injuries,

emotional distress, and permanent residual harm. Plaintiff

Nathan Powers, then four years old, was not hit with a bullet

but was present at the JCC during the shootings, and suffered

and continues to suffer severe emotional distress. Record 14,

q 24-25.

Furrow fled the JCC with his weapons. Later that day, he

saw Joseph Ileto, an employee of the U.S. Postal Service in the

midst of his mail route in Chatsworth, California. Furrow shot

and killed Mr. Ileto. The FAC alleges on information and belief

that Mr. Ileto was shot with the Glock model 26. Record 39,

q 148.

At the time of these shootings, Furrow was prohibited under

federal and California law from possessing, purchasing, or using

any firearm, having been committed to a psychiatric hospital in

1998, and convicted of assault in the second degree on May 21,

1999, in Washington State. Record 14, § 28.

The FAC additionally alleges how the crime gun tracing

system established by the federal government has put Norinco

on notice of the large number of its firearms that are traced as

part of a criminal investigation. Record 22-23, | 63-64. As a

result of the information available through the crime gun tracing

system, Norinco knows or reasonably should know that certain

of its distribution choices result in a disproportionately high

number of traced crime guns. Record 22, 4 62. Instead of

addressing these high risk distribution channels, Norinco

exploits them, as the crime gun trace data demonstrates, even

though Norinco knows or reasonably should know that by

exploiting them, Norinco is creating, assisting in creating, and

maintaining the illegal firearms market, the principal market

through which prohibited persons obtain firearms. Record 22,

{ 61; Record 23, | 66; Record 32, | 104-105. |

The specific distribution practices by Norinco that facilitate

widespread accessibility of its firearms to prohibited persons

such as Furrow include but are not limited to the following

practices alleged in the FAC:

. a. Norinco does not limit, or require its distributors and

dealers to limit, the number, purpose, or frequency of

firearm purchases, despite its knowledge that a number

of jurisdictions, including California, prohibit such

multiple sales of handguns and that ATF crime gun

data establishes a correlation between multiple sales

and guns traced to crime. Norinco chooses not to

monitor or supervise its distributors or dealers to guard

against practices or policies that facilitate access to

firearms for criminal purposes. It purposely avoids any

“vertical integration” as a technique for disassociating

itself from downstream distribution, while offering

monetary incentives for “high volume” sales. It chooses

not to use techniques for controlling inventory and

monitoring the distribution of its products that are _

commonplace in other industries selling their products

in this country. Record 18-19, 9 44; Record 24-25,

q 71-75.

Norinco repeatedly uses disreputable distribution

channels, such as corrupt dealers, that regularly provide

guns to criminals and underage users, as defendants

know from crime gun traces performed by the United

States Bureau of Alcohol, Tobacco, and Firearms.

Record 15-16, 4 32.

Norinco produces, markets, distributes, and sells

far more firearms than it reasonably expects to be

bought by law-abiding purchasers, intending to

create, foster, and profit from the criminal firearms

market. It deliberately oversupplies markets in

jurisdictions with lax gun laws that are close to or

neighbor jurisdictions with strict gun laws. Record 15,

q 31.

Norinco uses contracts with its distributors and dealers

that do not provide sanctions for conduct that may

enable criminals to obtain guns, though these same

contracts contain express provisions designed to protect

Norinco’s revenues. Record 16-17, ¥ 34.

Norinco fails to take even minimal steps readily

available to them that would eliminate widespread

accessibility of firearms to prohibited persons. Record

23-24, { 66.

Norinco knows or should know that the act of supplying a

prohibited person with a firearm creates an unreasonable risk

of harm to members of the public, and especially those members

of the public such as plaintiffs who may be particularly

vulnerable because of their ethnic or religious backgrounds.

Record 33, ¥ 108. The FAC further alleges that ATF crime gun

trace data reveals that guns manufactured by Norinco were

among the top ten guns most frequently traced to crime in the

Los Angeles area. Record 26, ¥ 81.

In addition, the FAC alleges that creation and maintenance

of the illegal firearms market, which serves as the main supplier

of firearms to prohibited persons, unreasonably interferes with

the public health, the public safety, and the public peace. Record

35, Y 124-125. The level of firearms violence, including

seemingly random violence, causes members of the public to

fear to-go out, to use public places, to leave their children at

school. Record 36, 4 127. By facilitating the purchase and

possession of firearms by individuals declared by law unfit to

have them, Norinco substantially and unreasonably

has interfered with the public’s safety generally. These

respondents (the child victims and surviving parent of murdered

postal worker Joseph Ileto) have all suffered an injury different

in kind from the general fear experienced by the public, because

they have suffered the physical and mental injuries resulting

from assault with a gun or gun shot wounds. Record 14, {J 24-

26; Record 38, 4 138.

III. Proceedings Below

Respondents filed their original complaint in Los Angeles

Superior Court on August 9, 2000, against defendants involved

in the manufacture, marketing, and distribution of various

firearms found in Buford Furrow’s possession: Glock, Inc.;

Glock GmbH; Petitioner China North Industries Corp. (“China

North” or “Norinco”); Davis Industries; Republic Arms, Inc.;

Jimmy L. Davis; Maadi; Bushmaster Firearms; Imbel; The

Loaner Pawnshop Too; David McGee; and 150 Doe Defendants.

The initial complaint alleged seven causes of action.

The first two claims were asserted by plaintiff Lilian Ileto,

against all defendants, for survival and wrongful death.

The remaining claims were brought by all plaintiffs, against all

defendants, for public nuisance, negligence, negligent

entrustment, and unfair business practices. As originally filed,

the complaint sought certification of a class, damages, and

injunctive relief. Pet. App. A, 6a.

Defendants Loaner Pawnshop and David McGee

successfully moved for dismissal for lack of personal

jurisdiction. Pet. App. B 72a. Defendants Republic Arms, Inc.

and Jimmy L. Davis answered. Jd. The Superior Court, by the

Honorable Anthony Mohr, granted demurrers filed by defendants

Glock, Inc., and Bushmaster Firearms, Inc., and dismissed all

claims with leave to amend. Jd.

On May 23, 2001, plaintiffs filed their First Amended

Complaint (“FAC’’). The FAC retained plaintiff Ileto’s survival

and wrongful death claims, as well as all plaintiffs’ negligence

and public nuisance claims, and the prayer for damages.

Plaintiffs did not reassert their other claims or prayers for relief.

In particular, plaintiffs withdrew their class allegations and their

requests for injunctive remedies, and defendants Loaner

Pawnshop and McGee were no longer named in the FAC. Pet.

App. A, 6a-7a. RSR Management Corporation and RSR

Wholesale Guns Seattle, Inc. (collectively “RSR”’), were named

in place of two Doe defendants. /d.

On October 17, 2001, following compliance with the Hague

Treaty, China North was served successfully with the original

complaint. Pet. App. B, 73a. On November 14, 2001, China

North removed the action to the court below under

28 U.S.C. § 1330 and 28 U.S.C. § 1603, on the ground that

China North is an instrumentality of a foreign state.

On December 6, 2001, the district court determined that removal

was proper. Jd.

The following defendants subsequently filed motions

to dismiss under Fed. R. Civ. P. 12(b)(6): Republic Arms, Inc.,

Jimmy L. Davis, and Davis Industries (collectively “Davis’’);

Quality Parts Company and Bushmaster Firearms (collectively

“‘Bushmaster’’); RSR; Norinco; and Glock, Inc. The district court

granted those motions to dismiss on March 25, 2002, in a

published memorandum order. Pet. App. A 14a. The district

court granted the RSR motion on June 11, 2002, and directed

the entry of final judgment in favor of all moving defendants

pursuant to Fed. R. Civ. P. 54(b). Jd. The order granting defendant

Glock’s motion to dismiss (with which all the other orders are

substantially similar) is published at J/eto v. Glock, Inc., 194 F.

Supp. 2d 1040 (C.D. Cal. 2002). Respondents timely filed their

notice of appeal on July 10, 2002. Pet. App. B, 71a.

Following briefing and argument the Ninth Circuit issued

its opinion reversing the district court’s judgment granting the

motions to dismiss. J/eto v. Glock, Inc., 349 F.3d 1191 (9th Cir.

2003). Pet. App. A la.

Following issuance of the panel’s opinion, Petitioner and

defendants-appellees Glock, Inc. and RSR Management Corp.

filed petitions for rehearing and rehearing en banc on December

17, 2003. All Petitions for rehearing were denied. Pet. App. C

llla. This Petition from China North followed. No other

defendant has joined its Petition or petitioned independently

for a writ of certiorari.

REASONS FOR DENYING THE PETITION

I. Summary Of Argument

After reviewing the applicable California statutes relevant

to the negligence and public nuisance claims, as well as the

numerous California cases applying those statutes, the Ninth

Circuit correctly held that in the distribution of their products,

firearms manufacturers and distributors are subject to Cal. Civ.

Code § 1714(a) and Cal. Civ. Code §§ 3470, 3480. Accordingly,

they may be held liable in negligence and pubic nuisance, under

those statutes, if they engage in irresponsible distribution

practices that knowingly facilitate criminal access to firearms,

thereby contributing to widespread firearms violence, crime,

personal injuries, and death.

In particular, and despite the alarm Petitioner seeks to raise,

the opinion below sustaining these shooting victims’ personal

injury claims, at the pleading stage, poses no threat to responsible

commerce in firearms or any other product. Respondents have

not raised, and the opinion below did not sustain, any strict

liability claims, as Petitioner urges. Instead, under the Ninth

Circuit’s opinion, Respondents will be required to prove both

that Petitioner’s wrongful conduct was a substantial factor in

causing their injuries and that Petitioner failed to exercise due

care in its distribution practices, or that those practices caused

unreasonable interference with the public health, safety or peace.

In short, responsible participants in firearms commerce can

shield themselves from liability to shooting victims through the

simple exercise of reasonable care. That will pose no threat to

federalism or to principles of international comity, or indeed to

responsible commerce in handguns.

II. Petitioner Fails To Identify A Single Issue So

Fundamental To Further Conduct Of The Case That

This Court Should Depart From Its Well-Settled Rule

Against Reviewing Interlocutory Judgments.

The judgment below is interlocutory and not final, and

simply reverses a trial court judgment entered on an order

granting motions to dismiss under Fed. R. Civ. P. 12(b)(6). This

Court rarely grants certiorari to review interlocutory judgments.

Virginia Military Inst. v. United States, 508 U.S. 946 (1993).

As this Court has recognized, the fact that a party must proceed

in litigation is not a ground for such review. See Brotherhood of

Locomotive Fireman v. Bangor & Aroostook R. Co., 389 U.S.

327, 328 (1967). Premature review may involve the Court in

unnecessary constitutional adjudication and should therefore

be avoided. Justice Brennan, Some Thoughts on Supreme Courts

Workload, 66 JupicaTurE 230, 231-32 (1983). Accordingly, as

a general rule, this Court will not issue a writ of certiorari to

review a decree of a circuit court on appeal from an interlocutory

order, unless it is necessary to prevent extraordinary

inconvenience and embarrassment to the conduct of the case.

American Construction Co. v. Jacksonville, T. & K. W. Railway

Co., 148 U.S. 372, 384 (1893).

There is no such necessity here. Avoiding this issue,

Petitioner fails to acknowledge that the judgment is interlocutory

in nature, and substitutes hysterical accusations of arrogation

of legislative power by the judiciary for identification of any

issue so fundamental to further conduct of the case that it must

be resolved now. The Ninth Circuit decision merely allows the

lawsuit to go forward on the pleadings, interpreting California

law to allow the negligence and public nuisance claims against

Petitioner to proceed on the facts pled. The California state court

allowed substantially similar public nuisance claims by some

California cities and counties to proceed past demurrer in People

v. Arcadia Machine & Tool, Inc., Judicial Council Coord.

Proceeding No. 4095, Slip Op. (San Diego County Superior

Court Sept. 19, 2000) (denying demurrers and finding

complaints stated public nuisance claims against firearms

manufacturers and distributors). '

Petitioner must distort California legislative policy and case

law to manufacture its accusations of judicial activism by the

Court below. For example, the California Supreme Court has

rejected soundly the position that Petitioner now profiers as its

opening argument (though it never raised the argument below)

— viz., that Cal. Gov. Code § 53071 expresses the intent of the

California Legislature to occupy the whole field of regulation

of firearms. Great Western Shows, Inc. v. County of Los Angeles,

27 Cal. 4th 853, 861, 118 Cal. Rptr. 2d 746, 751 (2002). Exactly

to the contrary, the California Supreme Court has held squarely

that the California Legislature has chosen not to occupy the entire

field of gun control but rather has preempted only certain discrete

areas of firearms regulation. “A review of the gun law

preemption cases indicates the Legislature has preempted

discrete areas of gun regulation rather than the entire field of

gun control. The seminal case to advance this proposition is

Galvan v. Superior Court (1969), 70 Cal. 2d 851, 76 Cal. Rptr.

642, 452 P.2d 930... .” See Great Western, 27 Cal. 4th at 861.

Under the controlling California cases, section 53071 is to be

narrowly construed to preempt only those subfields of firearms

—_—

1. In subsequent proceedings, the trial court granted summary

judgment against most defendants. People v. Arcadia Machine & Tool,

Inc., 2003 WL 21184117 (2003). That judgment is on appeal.

regulation it specifically addresses — i.e., licensing and

registration. For a review of the relevant case law, see Great

Western, 70 Cal. 2d at 861-863, in which the court cites with

approval to Olsen v. McGillicuddy, 15 Cal. App. 3d 897, 93

Cal. Rptr. 530 (1971). The Olsen court, in turn, notes that despite

the opportunity to include an expression of intent to occupy the

entire field of firearms regulation after Galvan narrowly

construed the predecessor to Cal. Gov. Code § 53071, the

Legislature declined to do so in subsequent enactments. /d.

Likewise, nothing supports Petitioner’s extrapolation from

their incorrect premise. None of the cases cited by Petitioner

and no other California case holds that “occupation of the field”

of gun control by the Legislature “bars any judicial action” other

than interpretation of the existing statutes and regulations. The

cases Petitioner relies on for this alleged premise all arise in the

context of challenges to local ordinances regulating firearms,

evaluating the extent of state preemption of such local

regulation, and none stands for the cited proposition.

As shown above, in Galvan v. Superior Court, 70 Cal. 2d

851, the California Supreme Court emphasized the narrowness

of state law firearms preemption, a principle reiterated in Great

Western, supra (upholding a local ban on gun sales on County

property), and in Nordyke. v. King, 27 Cal. 4th 875, 118 Cal.

Rptr. 2d 761, 44 P.3d 133 (2002) (upholding a prohibition of

firearms possession on county-owned property), and in Cal. Rifle

& Pistol Assn. v. City of West Hollywood, 66 Cal. App. 4th 1302,

78 Cal. Rptr. 2d 591 (1998) (upholding a local ban on dealer

sales of “junk guns”). In the two other cases cited by Petitioner,

Sippel v. Nelder. 24 Cal. App. 3d 173, 101 Cal. Rptr. 89 (1972),

and Doe v. City of San Francisco, 136 Cal. App. 3d 509, 186

Cal. Rptr. 380 (1982), the local ordinance was held to be

preempted by state law because it created a licensing

or registration scheme, and thus conflicted with Cal. Gov. Code

§ 53071 or its predecessor Cal. Gov. Code § 9619, the state.

statute occupying the subfields of licensing and registration of

firearms. However, as noted above, in a number of cases, the

courts have found local gun regulations to be valid in the face

of challenges based on state law preemption claims. See also

Great Western, 27 Cal. 4th at 861-63 (examining the cases

upholding iocal firearms ordinances).

In Sippel, relied on by Petitioner, the court found the

challenged ordinance conflicted with Cal. Gov. Code § 9619

(predecessor to section 53071) and Penal Code § 12026.

The Court made the unremarkable observation in passing that

while the record in the trial court suggested a critical need for

the local ordinance, which required a person to obtain a local

permit to possess a concealable weapon in his home, it was up

to the Legislature to determine how to address that need.

24 Cal. App. 3d at 177. Nothing in Sippel, or any of the cases

relied on by Petitioner, remotely suggests what Petitioner

attempts to torture out of them — that is, that by enacting section

53071 (or any other statute), the California Legislature has

thereby expressed its intent to exempt firearms manufacturers

from all tort liability.”

In addition, Petitioner’s strained interpretation of Cal. Civ.

Code § 1714.4 as expressing the Legislature’s intent to immunize

Petitioner from the claims of the FAC was carefully considered

and correctly rejected, not only by the Ninth Circuit, but also

by the district court itself. See Ileto v. Glock, 194 F. Supp. 2d

1040, 1050-51 (C.D. Cal. 2002).

Prior to its repeal in 2002, the text of Cal. Civ. Code

§ 1714.4 (App. C) provided as follows:

a. Inaproducts liability action, no firearm or ammunition

shall be deemed defective in design on the basis that

the benefits of the product do not outweigh the risk of

2. In fact, if that were the case, having enacted section 9619 in

1969 (the predecessor to section 53071) and subsequently amended and

renumbered section 9619 as section 53071 in 1971, there would have

been no need for the Legislature to enact Cal. Civ. Code § 1714.4 in

1983, immunizing firearms manufacturers from a specific class of civil

lawsuits.

injury posed by its potential to cause serious injury,

damage, or death when discharged.

b. For purposes of this section:

1) The potential ofa firearm or ammunition to cause

serious injury, damage, or death when discharged

does not make the product defective in design.

2) Injuries or damages resulting from the discharge

of a firearm or ammunition are not proximately

caused by its potential to cause serious injury,

damage, or death, but are proximately caused by

the actual discharge of the product.

On its face, this was narrowly crafted language, purporting

to bar only certain enumerated claims proceeding under specified

theories. It prohibited only liability premised on allegations that

firearms were “defective in design,” and only where such defects

were alleged “on the basis” that the firearms failed a risk/utility

test because any benefits they might have conferred were

outweighed by the weapons’ general capacity to cause injury.

The statute also provided that for “purposes of this section” —

i.e., for cases within the statute's scope — a special legislative

definition of causation applied.

The Ninth Circuit, like the district court, found section

1714.4 to be inapplicable, under its express terms, to claims

like Respondents’ — i.e., to claims predicated not on the

particular physical attributes of the relevant firearms, nor on

any design defect, but rather on the failure to exercise reasonable

care in their marketing and distribution. Pet. App. A, 18a-20a;

Ileto v. Glock, 194 F. Supp. 2d at 1050-51. Statutory language

conferring more sweeping immunity would have been easy to

draft.’ If no such language has every been found in the statute

3. Some other jurisdictions have, in fact, enacted provisions that

manifest such intent. In Pennsylvania, for example, the legislature has

explicitly enacted a flat ban on suits by municipalities against handgun

manufacturers and distributors who market their products in accordance

with applicable state and federal laws and regulations. The language of

(Cont'd)

books in California, it is because the actual public policy

underlying section 1714.4 was limited to the lawsuits it actually

covered.

Similarly, Petitioner’s argument that the holding in Merrill

v. Navegar, Inc., 26 Cal. 4th 465, 110 Cal. Rptr. 2d 370 (2001),

somehow bars these claims is misplaced, as the Ninth Circuit

and the district court held. Merrill merely applied section 1714.4

to claims of exactly the sort that the statute then barred. Because

the plaintiffs’ claims in Merrill were predicated on the allegedly

negligent design and physical attributes of the relevant weapons,

the court held them to be defective design claims within the

statute’s meaning. See 26 Cal. 4th at 478-80. And since the

plaintiffs in Merrill sought to impose liability in tort precisely

because the dangerousness of the weapons, as designed,

outweighed any social utility they might afford, the claims were

indeed brought “on the basis” of the very theories that section

1714.4 proscribed. See id. at 480-81. In so ruling, the Merrill

court took pains to distinguish other claims not within the

statute’s scope, including “far different” claims involving various

forms of “negligent furnishing” — a category into which the

claims in this civil action may readily be seen to fall. See id. at

483.

The Ninth Circuit was thus correct to distinguish Merrill.

Unlike the claims in Merrill, Respondents’ claims do not invoke

design defect principles under the thin camouflage of a different

legal label. These claims involve different legal and factual

(Cont'd)

the Pennsylvania provision, captioned “No Right of Action,” is not subtle,

indirect, or coy:

No political subdivision may bring or maintain an action at

law or in equity against any firearms or ammunition

manufacturer, trade association or dealer for damages,

abatement, injunction relief or any other relief or remedy

resulting from or relating to either the lawful design or

manufacture of firearms or ammunition or the lawful

marketing or sale of firearms or ammunition to the public.

18 Pa. C.S. § 6120(a)(A.1)(1).

elements, and a different underlying theory of tortious

distribution.’

In response to the Merrill decision, the California

Assembly and the California Senate passed S.B. 682, a bill

repealing Cal. Civ. Code § 1714.4 in its entirety. Signed into

law by Governor Davis on September 25, 2002, S.B. 682 also

amended Cal. Civ. Code § 1714(a), to add additional language,

shown in bold below:

1714.(a) Everyone is responsible, not only for the

- result of his or her willful acts, but also for an injury

occasioned to another by his or her want of ordinary

care of skill in the management of his or her property

or person, except so far as the latter has, willfully or

by want of ordinary care, brought the injury upon

himself or herself. The design, distribution, or

marketing of firearms and ammunition is not

exempt from the duty to use ordinary care and

skill that is required by this section. The extent

of liability in these cases is defined by the Title

on Compensatory Relief.

In short, the legislative response to the Merrill decision

was to repeal altogether even the limited immunity formerly

conferred by section 1714.4 on firearms manufacturers, and to

confirm that the design, distribution, and marketing of firearms

are activities to which the duty of ordinary care mandated by

section 1714(a) applies.

4, The physical characteristics of the Norinco 320 are germane to

Respondents’ claims only to the extent that properly functioning

handguns propel bullets, at high velocity, when their triggers are pulled.

But Respondents raise no contention that Petitioner should have designed

the Norinco 320 so that no bullets were propelled. Nor did section 1714.4

ever purport to bar all claims to which the general physical capacity of

handguns to cause harm was relevant. Any such theory would prove far

too much. For example, it would bar even claims against retailers who

sold handguns to purchasers who forthrightly announced their intention

to use them to imminent murderous purpose.

Even if Petitioner’s strained interpretations of former

section 1714.4 and Merrill were correct — and they are not —

a conflict between them and the Ninth Circuit’s interpretations

would not provide a basis for certiorari review under Rule 10(a),

much less a reason for the extraordinary exercise of that review

in the context of an interlocutory judgment. Twenty-four years

ago, this Court deleted from its rules a criterion previously

allowing for certiorari review where “a court of appeals has. . .

decided an important state or territorial question in a way in

conflict with applicable state or territorial law.” Compare

Sup. Ct. R. 19(1)(b) (1970) with Sup. Ct. R. 17.1 (1980) and

with Sup. Ct. R. 10 (current). That deletion recognized this

Court’s practice of limiting its appellate review to substantial

questions of federal law. See, e.g., Equality Found. of Greater

Cincinnati, Inc. v. City of Cincinnati, 525 U.S. 943, 943 (1998)

(opinion of Stevens, J., on denial of certiorari) (“This Court

does not normally make an independent examination of state

law issues that have been resolved by a court of appeals.”); Leroy

v. Great W. United Corp., 443 U.S. 173, 181 n.11 (1979) (“it is

not our practice to re-examine state law determinations of this

kind”).

Moreover, Petitioner cannot sustain its accusation that the

Ninth Circuit so “tortured” and “blatantly nullified” Cal. Gov.

Code § 53071, Cal. Civ. Code § 1714.4, or the Merrill case that

certiorari review by this Court is merited on any basis. As shown

above, contrary to Petitioner’s claim, the California Supreme

Court has held that Cal. Gov. Code § 53071 does not express

the Legislature’s intent to occupy the entire field of gun control.

To the extent that section 53071 preempts local regulation of

the limited subfields of licensing and registration of firearms, it

is simply irrelevant here (nor has Petitioner ever raised it before).

Further, it is plain that neither section 53071 nor any of the

cases construing that statute support the proposition Petitioner

urges, that is, that the California Legislature has expressed its

intent to “bar any judicial action that does more than merely

interpret the existing statutes and regulations.” In short,

Petitioner does not cite and cannot cite any California statute or

case law that precludes the state courts from applying Cal. Civ.

Code § 1714(a) and common law tort principles regarding breach

and causation, on a case by case basis, to actions of firearms

manufacturers alleged to violate the duty of ordinary care

mandated by Cal. Civ. Code § 1714(a).

With respect to the narrow immunity set forth in former

section 1714.4, both the district court and the Ninth Circuit relied

on the California Supreme Court’s anaiysis of that statute in

Merrill v. Navegar to conclude that section 1714.4 does not bar

Respondents’ claims. The Ninth Circuit denied rehearing en

banc, with some judges dissenting. At the most, this divergence

on how Merrill should be interpreted suggests that reasonable

minds may differ on the interpretation of that case. Thus, unlike

the lower court’s decision in Leavitt v. Jane L., 518 U.S. 137

(1996), the Ninth Circuit’s reading of California law is not

“plainly unsustainable” such that this Court’s extraordinary

review is merited, much less its review on certiorari of an

interlocutory judgment. The mere fact that Petitioner claims the

Ninth Circuit’s reading of Merrill was erroneous provides no

basis for certiorari review under Rule 10.

Ill. The Ninth Circuit Correctly Analyzed The State Law

Issues Under Erie R. Co. v. Tompkins, 304 U.S. 64 (1938),

And In Any Event, An Allegedly Erroneous Reading

Of State Law Is Not A Ground For Certiorari Review.

By This Court.

Having concluded that there was no statutory bar under

California law to Respondents’ claims, the Ninth Circuit then

engaged in a painstaking application of Erie principles to

determine whether, on the facts alleged, Respondents’ FAC

stated claims for negligence and public nuisance under

California law. In that analysis, the Ninth Circuit reviewed the

relevant statutes and the controlling decisions interpreting those

statutes, totalling almost two dozen cases.

As noted above, in their various arguments that the Ninth

Circuit improperly created a new common law liability in

California, both the Petitioner and the dissenting judges

misapprehend California negligence law. Under California law,

to state a negligence claim, plaintiff must allege that defendant

owed plaintiff a legal duty, that it breached that duty, and that

the breach was a proximate cause of plaintiff’s injuries.

However, the question whether a legal duty is owed is governed

by the “command” of Cal. Civ. Code § 1714(a), which declares

that “/e] very person is responsible, not only for the result of his

willful acts, but also for an injury occasioned to another by his

want of ordinary care or skill in the management of his property

or person.” See Merrill v. Navegar, 26 Cal. 4th at 477.

The California Supreme Court has acknowledged that this

code section states a civil law, and not acommon law principle.

Rowland v. Christian, 69 Cal. 2d 108, 112, 70 Cal. Rptr. 97,

100 (1968). The California Supreme Court has further stated

“it is clear that in the absence of statutory provision declaring

an exception to the fundamental principle enunciated by section

1714 of the Cal. Civ. Code, no such exception should be made

unless clearly supported by public policy.” /d.; see also Merrill

v. Navegar, 26 Cal. 4th at 477. Thus, in California, the question

is not under what circumstances a manufacturer of a product

owes a legal duty to another, but rather under what statutory or

judicially created exception, if any, a manufacturer may be

excused from liability for breach of that duty when his want of

ordinary care results or is a substantial factor in causing injury

to another. See Mitchell v. Gonzales, 54 Cal. 3d 1041, 1 Cal.

Rptr. 2d 913 (1991) (holding that under California law, the

proximate cause of an injury is a cause which is a substantial

factor in bringing about the injury).

Put another way, by enacting Cal. Civ. Code § 1714(a), the

California Legislature has already determined as a matter of

public policy that a product manufacturer is generally under a

duty of ordinary care. Therefore, as a federal court sitting in

diversity and deciding an issue of state law, the Ninth Circuit

was required by Cal. Civ. Code § 1714(a) to impose that duty

of ordinary care on Petitioner absent an applicable statutory

exception or a finding that a departure from the statute’s mandate

was Clearly supported by public policy. See Merrill, supra.

In short, the threshold issue before the Ninth Circuit on the

negligence claim, that is whether California law imposes a duty

of care on a firearms manufacturer, is not a question left to the

evolution of common law in California because it has already

been answered by the Legislature. Petitioner and the dissenting

judges thus turn California law upside down when they assert

that the Ninth Circuit violated federalism principles by reaching

out to create a “new common law liability” rather than certify

the state law negligence claim to the California Supreme Court

or abstain from deciding it.

The Ninth Circuit rightly concluded, based on the plain

language of the statute and Merrill v. Navegar (controlling

California Supreme Court authority), that the statutory exception

set forth at Cal. Civ. Code § 1714.4 did not apply to Respondents’

claims. Accordingly, the court went on to determine whether a

departure from Cal. Civ. Code § 1714(a) was clearly supported

by public policy, as it was required to do under controlling

California Supreme Court authority. As the Ninth Circuit

correctly held, departure from the fundamental principle set forth

at section 1714(a) involves the balancing of a number of

considerations, the major ones being the foreseeability of harm

to the plaintiff, the degree of certainty that the plaintiff suffered

injury, the closeness of connection between defendant’s conduct

and the injury suffered, the moral blame attached to defendant’s

conduct, the policy of preventing future harm, the consequences

to the community of imposing a duty to exercise due care with

liability for breach, and the availability, cost and prevalence of

insurance for the risk involved. Rowland, 69 Cal. 2d at 112-13;

see also Merrill, supra. Based on the required balancing of these

factors, the Ninth Circuit concluded public policy did not require

that Petitioner be immunized from liability for breach of its

duty of ordinary care to Respondents. Pet. App. at 27a-29a, 50a-

Sla.

By urging certification or abstention on the theory that the

Ninth Circuit should not have engaged in the foregoing policy

analysis, Petitioner and some of the dissenting judges also

misconstrue the role of public policy in resolving Respondents’

state law negligence claim. Faced with a demurrer to the FAC,

and taking the allegations of the complaint as true, a California

court would have balanced the various factors set forth above

not to determine whether the court should impose a legal duty

on Petitioner with respect to Respondents in the first instance,

but rather to determine whether these factors clearly weigh in

favor of relieving Petitioner from that duty. As a federal court

sitting in diversity, the Ninth Circuit was required to apply the

controlling statute, Cal. Civ. Code § 1714(a), and therefore to

conduct the foregoing public policy analysis. Had the Ninth

Circuit ignored section 1714(a), it would then perhaps have been

engaging in judicial activism. Yet that is precisely the course

Petitioner and the dissenting judges urge when they theorize,

incorrectly, that in California, the question of whether a product

manufacturer may ever be held to a duty of care in how it

distributes its product is a question of common law which the

courts of California have never addressed and that therefore the

Ninth Circuit should not have addressed it. Because Petitioner

relies exclusively on the foregoing misplaced “federalism”

theory, Petitioner fails to discuss, or analyze, or distinguish,

any of the case law relied on by the Ninth Circuit in concluding

that the FAC also alleges facts sufficient to establish breach

and causation under California law.

With respect to Respondents’ public nuisance claim,

Petitioner also fails to support its accusation that the Ninth

Circuit improperly extended California public nuisance law.

Petitioner’s contention that claims for public nuisance must have

some nexus with real or personal property rights is contrary to

hornbook law. That incorrect contention was also one of the

grounds for Petitioner’s rejected petition for rehearing and

rehearing en banc, and is an artificial construct based on twelve

words in a case involving a private nuisance claim, taken out of

context. Here again, Petitioner’s position is at loggerheads with

plain statutory language.

Under Cal. Civ. Code § 3479, a nuisance is defined as

follows:

Anything which is injurious to health, including, but

not limited to, the illegal sale of controlled

substances, or is indecent or offensive to the senses,

or an obstruction to the free use of property, so as to

interfere with the comfortable enjoyment of life or

property, or unlawfully obstructs the free passage

or use, in the customary manner, of any navigable

lake, or river, bay, stream, canal, or basin, or any

Id. (emphasis added). Under Cal. Civ. Code § 3480, in turn, a

public nuisance is “one which affects at the same time an entire

community or neighborhood, or any considerable number of

persons.” The widespread unlawful possession of handguns by

criminals and youth, which Petitioner’s negligent distribution

practices facilitate, easily satisfies both definitions. It likewise

satisfies the traditional standards for public nuisance outlined

in RESTATEMENT (SECOND) OF Torts § 821B, to which the

California Supreme Court looks for guidance. See People

ex rel. Gallo v. Acuna, 14 Cal. 4th 1090, 1104, 60 Cal. Rptr. 2d

277, 285 (1997) (any unreasonable interference with “five

general categories of ‘public rights’: . . . the public health, the

public safety, the public peace, the public comfort or the public

convenience’’), cert. denied, 521 U.S. 1121 (1997). Nothing in

these long-settled California standards has ever been supposed

to immunize defendants from public nuisance liability merely

because the sale of some product is involved, or to require some

nexus with plaintiffs’ real or personal property.

Petitioner’s argument to the contrary proceeds by conflating

the tort of private nuisance, on the one hand, with the different

and separate tort of public nuisance, on the other. To see how, it

is helpful to look more closely at the primary authority on which

Petitioner relies — a twelve-word quote fragment from the

California Court of Appeals decision in City of San Diego v.

United States Gypsum Co., 30 Cal. App. 4th 575, 586, 35 Cal.

Rptr. 2d 876, 883 (1994).

City of San Diego involved claims against asbestos

manufacturers arising from the health hazards posed by asbestos

products installed in city buildings. Among the theories of

liability addressed in the opinion was the city’s claim for

“nuisance.” Although the opinion nowhere states explicitly that

the claims were for “private” nuisance, the court’s entire analysis

is addressed to private nuisance concepts and invokes private

nuisance authorities. For example, the opinion cites California’s

general nuisance statute, Cal. Civ. Code § 3479, but not the

public nuisance statute, Cal. Civ. Code § 3480. Moreover, the

opinion characterizes the gravamen of the city’s claim as

involving interference with the enjoyment of property,

30 Cal. App. 4th at 584-85, echoing the classic language with

which the California courts, like courts everywhere, have long

defined private nuisance claims. See, e.g., San Diego Gas &

Electric Co. v. Superior Court, 13 Cal. 4th 893, 937, 55 Cal.

Rptr. 2d 724, 751 (1996) (“interference with the private use

and enjoyment of land”).

It is in this overall context of private nuisance that the court

in City of San Diego inscribed the twelve words on which

Petitioner relies, and whose ambiguity Petitioner seeks again to

exploit: “[N]uisance cases ‘universally’ concern the use or

condition of property, not products.” 30 Cal. App. 4th at 586

(citation omitted).

As the Ninth Circuit opinion properly notes, these twelve

words are actually part of a larger sentence, in which the state

appellate court is making passing reference to what the Michigan

Court of Appeals “noted” in Detroit Board of Educ. v. Celotex

Corp., 196 Mich. App. 694, 711, 493 N.W.2d 513, 521 (1992),

appeal denied, 444 Mich. 908, 512 N.W.2d 318 (1993). Pet.

App. A, 47a at footnote 2. As it turns out, the City of San Diego

court’s citation to Detroit Board of Education affirmatively

confirms that the twelve words quoted in the Petition refer to

private nuisance claims. The Michigan decision involved a

similar attempt to recast product liability claims involving

asbestos as claims for private nuisance (a point on which the

Michigan court was explicit, see 493 N.W.2d at 520), and it is

in that context of private nuisance that the Michigan court

observed: “The law of nuisance is fraught with conditional rules

and exceptions that turn on the facts of individual cases, and

the cases almost universally concern the use or condition of

property, not products.” /d. at 521.

It is settled, and no one disputes, that claims for private

nuisance generally involve “interference with the private use

and enjoyment of land.” San Diego Gas & Electric Co., 13 Cal.

4th at 937. No such requirement applies, however, to claims for

public nuisance. That distinction is a matter of longstanding

black-letter law, and cannot be undone by the artifice of locating

judicial quotations that drop the modifier “private” in unguarded

moments. See generally RESTATEMENT (SECOND) OF ToRTS

§§ 821A-821E (setting forth the respective elements of private

nuisance and public nuisance). Because the claims asserted here

are public nuisance claims, City of San Diego is simply

inapposite. Indeed, in Selma Pressure Treating Co. v. Osmose

Wood Preserving, Co., 221 Cal. App. 3d 1601, 1619 n.7, 271

Cal. Rptr. 596, 607 n.7 (1990), the court explicitly rejected the

view that any rule of law generally relieves the manufacturers

of products from public nuisance liability. Petitioner also

adduces no sound policy reason to create some new exemption

from public nuisance liability, unknown at common law, for

tortfeasors who manage to sell products at a profit in the course

of endangering the public health, safety, and peace.

Finally, with respect to certification or abstention, Petitioner

has in effect waived any argument that the Ninth Circuit should

have invoked either procedure. Not only is it Petitioner who

removed this lawsuit from state court to federal court (as it was

entitled but not required to do under the Foreign Sovereign

Immunities Act, 28 U.S.C. § 1330), but in addition, Petitioner

never moved for certification or abstention in either the district

court or the Ninth Circuit.° Nor did Petitioner ever complain

5. Furthermore, with respect to certification, the California

Supreme Court is not required to accept a certified question. See Cal.

Rules of Court, Rule 29.5(f).

that the district court should not have adjudicated whether the

FAC stated claims in negligence or public nuisance under

California law — issues the district court did in fact adjudicate,

albeit in a manner more to Petitioner’s liking. If Respondents’

negligence and public nuisance claims raised novel, unsettled

questions of state law, as Petitioner now alleges, then presumably

the federal district court was as inappropriate a forum for their

adjudication as the Ninth Circuit, but Petitioner never sought

certification in the trial court. Finally, Petitioner never mentioned

certification or abstention in any of its briefing in the Ninth

Circuit. 2 arabe

As shown above, Petitioner’s accusations of judicial

activism are unsupported except by gross distortions of

California statutory and case law and the opinion below. Further,

contrary to Petitioner’s dire warnings of forum shopping, this

case also does not present any looming crisis of disparate results

between California state courts and the federal district courts,

sitting in diversity. That theoretical possibility might once have

existed, if Merrill v. Navegar had indeed held that handgun

manufacturers enjoyed a blanket immunity from claims in tort

under California law. But Merrill did not so hold, and even if it

had, any hypothetical prospect of litigants fleeing the state court

system in favor of California’s federal district courts has been

decisively obviated by the California Legislature’s repeal of the

statute on which the holding in Merrill was based, see Ileto v.

Glock, Inc., 349 F.3d 1191, 1202 n.12 (9th Cir. 2003), and the

state Legislature’s simultaneous confirmation that firearms

manufacturers are subject to the same fundamental duty of care

that the law imposes on other persons. See id., 349 F.3d at 1203

n.14. Thus, even if plaintiffs who sue firearms manufacturers

formerly had some incentive to flee to federal court to avoid

disadvantageous rules of decision that would have governed in

California’s courts, any such incentive has been eliminated by

the Legislature’s repeal and repudiation of those arguably

disadvantageous provisions.

IV. The Ninth Circuit Correctly Held That a Tort Suit

Seeking Compensatory Damages Against a Product

Manufacturer Does Not Offend the Commerce Clause.

This Court has long made clear that a person who sets in

motion in one state the means by which injury is inflicted in

another state may be held liable for that injury according to the

law of the latter state for injurious consequences within it. Young

v. Masci, 289 U.S. 253, 258-60 (1933). In the FAC, Respondents

are not seeking to have any of Petitioner’s commercial activities

enjoined. They are asking that a trier of fact award damages for

the consequences of conduct by Petitioner that increased the

risk of harm they suffered and was a substantial factor in causing

that harm. In short, Petitioner’s out-of-state conduct (as well as

its in-state conduct) is alleged to have had injurious effects in

California, to these Respondents. As this Court made clear in

BMW of N. Am. v. Gore, 517 U.S. 559, 572-73 (1996), the

incidental extraterritorial effects of tort liability do not offend

the Constitution unless the conduct occurring outside the state

for which compensation is sought (1) had no impact on the state

or its residents or (2) was exercised to deter the defendant’s

conduct in another state, and to protect citizens in other states,

rather than to protect the state’s own citizens. Jd.

Thus, while Petitioner cites to the* part of the BMW decision

acknowledging that the Constitution may impose limits on all

forms of state law, Petitioner disregards the fact that in BMW

this Court rejected a rule which would prohibit exercise of state

power outside the state regardless of whether that conduct has

effects within the state. This Court has never held that a state

may not impose economic consequences through damage

verdicts on violators of its laws for conduct occurring exclusively

in another state. In fact, the Court in BMW recognized that a

civil suit may proceed even though the result may be to create

an incentive for change in out-of-state practices. What the

Constitution bars is an economic sanction penalizing conduct

that had no effect on the state or the residents of the state in

which the trier of fact sits, or where the intent of the sanction

was to punish the out-of-state conduct for the sake of protecting

out-of-state victims, rather than to protect and compensate the

state’s own residents for the injuries they suffer.

The Ninth Circuit correctly held that in this lawsuit, the

state’s interest in protecting the health and safety of its residents

is a legitimate interest as the basis for any extraterritorial exercise

of its power through a trial verdict. This lawsuit is well within

the type of state law exercise which this Court found permissible

in BMW.

Petitioner’s argument that the Commerce Clause is

implicated because Congress intends federal law to be the sole

source of regulation of firearms commerce is equally flawed.

Before a court finds Congress has “preempted” any subject

matter, it must be absolutely certain Congress intended to

preempt that field of regulation. Gregory v. Ashcroft, 501 U.S.

452, 464 (1991). There is a strong presumption against federal

preemption of state and local legislation. California v. ARC

American Corp., 490 U.S. 93, 101 (1989). This presumption is

especially strong in areas traditionally occupied by the states,

such as health and safety measures. English v. General Electric

Co., 496 U.S. 72, 79 (1990). To find preemption a court must

find an express statement by Congress of intent to preempt, or a

pervasive scheme of federal regulation that leaves no room for

state or local regulation, or an actual conflict between federal

law and the challenged statute or law. English, 496 U.S. at 73.

In enacting the Gun Control Act of 1968 and the Firearms

Owners’ Protection Act, Congress never expressed congressional

intent to preempt state regulation of firearms. In fact, Congress

expressly disavowed any intent to occupy the field of gun control

when it enacted the Gun Control Act. See H.R. Rep. No. 1577,

90th Cong. 2d Sess. (1968), reprinted in 1968 U.S.C.A.N. 4410,

4411. Moreover, the Gun Control Act specifically acknowledges

the existence of state and local laws regulating federal firearms

licensees and requires licensees to comply with the state and

local laws. 18 U.S.C. § 922 (b)(2)-(3). The federal courts have

noted, in various challenges to state and local laws, that Congress

has nowhere expressed an intent to exclude state and local

regulation of firearms. See Richmond Boro Gun Club v. City of

New York, 896 F. Supp. 276, 285-88 (E.D.N.Y. 1995), aff'd, 97

F.3d 681 (2d Cir. 1996); see also Fresno Rifle and Pistol Club,

Inc. v. Van De Kamp, 965 F.2d 723 (9th Cir. 1992).

In addition, even assuming arguendo that this lawsuit is an

exercise of state power, and may affect Petitioner’s distributional

practices, no federal law positively authorizes these practices,

and thus there is no actual conflict and no frustration of

congressional purpose. See Richmond Boro Gun Club v. City of

New York, 97 F.3d 681 at 687.

Petitioner’s argument that the Ninth Circuit decision will

result in piecemeal regulation and thus undermine uniformity

intended by Congress in regulating firearms also fails. It fails

first because, as shown above, Congress has never expressed

an intent to occupy the whole field of firearms regulation, to

the exclusion of the states, and further the distributional practices

alleged in this lawsuit are not authorized by Congress. Second,

this lawsuit seeks compensation for those practices which

Respondents show at trial are negligent or create or contribute

to the public nuisance alleged. It is up to Petitioner to determine

how or if to conduct its business in some other manner if

compensation is awarded. While it is true that among the many

distribution practices the FAC describes is Petitioner’s

intentional oversupply of markets in states with lax laws, that

practice is reached by this lawsuit only if Respondents prove it

is a negligent practice that was a substantial factor in their

injuries or is a practice that contributes to and maintains the

public nuisance alleged, and Petitioner then decides to modify

that practice rather than pay compensatory damages when harm

results.

The remainder of Petitioner’s “the sky is falling”

arguments are equally without merit. While acknowledging

that the principal goal of the federal firearms laws is to keep

firearms out of the hands of those not legally entitled to have

them, Petitioner in effect argues that it should not be subject

to any civil liability if it chooses, intentionally, to conduct

its business through various strategies designed to undermine

rather than support that goal, merely because no regulation

or statute prohibits those strategies. However, illegal acts

are not necessary conditions for tort liability. Should some

costs associated with those practices be shifted to Petitioner

through an award of compensation, Petitioner may simply

absorb them as a cost of continuing to do business through

strategies that undermine, rather than further, the legislative

goal of keeping firearms out of the hands of those

incompetent to possess or purchase them, such as Buford

Furrow.

CONCLUSION

For the reasons given, Respondents respectfully request

that the honorable members of this Court deny the instant

Petition for a writ of certiorari.

Respectfully submitted,

SAYRE WEAVER PETER NoRDBERG*

THE EDUCATIONAL FUND TO BERGER & MontTaGug, P.C.

Stop GUN VIOLENCE 1622 Locust Street

1023 15th Street, NW Philadelphia, PA 19103

Sixth Floor (215) 875-3000

Washington, DC 20005

Counsel for Respondents

* Counsel of Record

APPENDIX

APPENDIX A

CAL. CIV. CODE § 1714

(AS AMENDED EFFECTIVE JANUARY 1, 2004)

RESPONSIBILITY FOR WILLFUL ACTS

AND NEGLIGENCE;

CONTRIBUTORY NEGLIGENCE

(a) Everyone is responsible, not only for the

result of his or her willful acts, but also for an injury

occasioned to another by his or her want of ordinary

care or skill in the management of his or her property

or person, except so far as the latter has, willfully or

by want of ordinary care, brought the injury upon

himself or herself. The design, distribution, or

marketing of firearms and ammunition is not exempt

from the duty to use ordinary care and skill that is

required by this section. The extent of liability in

these cases is defined by the Title on Compensatory

Relief.

(b) Itis the intent of the Legislature to abrogate

the holdings in cases such as Vesely v. Sager (1971)

5 Cal.3d 153, Bernhard v. Harrah’s Club (1976)

16 Cal.3d 313, and Coulter v. Superior Court (1978)

21 Cal.3d 144 and to reinstate the prior judicial

interpretation of this section as it relates to proximate

cause for injuries incurred as a result of furnishing

alcoholic beverages to an intoxicated person, namely

that the furnishing of alcoholic beverages is not the

proximate cause of injuries resulting from

intoxication, but rather the consumption of alcoholic

beverages is the proximate cause of injuries inflicted

upon another by an intoxicated person.

Appendix A

beverages to any person may be held legally

accountable for damages suffered by that person, or

for injury to the person or property of, or death of,

any third person, resulting f-om the consumption of

those beverages.

APPENDIX B

CAL. CIV. CODE § 1714

(PRIOR TO AMENDMENT)

RESPONSIBILITY FOR WILLFUL ACTS

AND NEGLIGENCE;

CONTRIBUTORY NEGLIGENCE

(a) Every one is responsible, not only for the

result of his willful acts, but also for an injury

occasioned to another by his want of ordinary care

or skill in the management of his property or person,

except so far as the latter has, willfully or by want

of ordinary care, brought the injury upon himself.

The extent of liability in such cases is defined by

the Title on Compensatory Relief.

(b) Itis the intent of the Legislature to abrogate

the holdings in cases such as Vesely v. Sager (5

Cal.3d 153), Bernhard v. Harrah’s Club (16 Cal.3d

313), and Coulter v. SuperiorCourt(___Cal.3d_)

and to reinstate the prior judicial interpretation of

this section as it relates to proximate cause for

injuries incurred as a result of furnishing alcoholic

beverages to an intoxicated person, namely that the

furnishing of alcoholic beverages is not the

proximate cause of injuries resulting from

intoxication, but rather the consumption of alcoholic

beverages is the proximate cause of injuries inflicted

upon another by an intoxicated person.

beverages to any person shall be held legally

accountable for damages suffered by such person,

or for injury to the person or property of, or death

of, any third person, resulting from the consumption

of such beverages.

APPENDIX C

CAL. CIV. CODE § 1714.4

(PRE-REPEAL)

PRODUCTS LIABILITY;

DEFECTIVENESS OF FIREARMS OR AMMUNITION

(a) In a products liability action, no firearm

or ammunition shall be deemed defective in design

on the basis that the benefits of the product do

not outweigh the risk of injury posed by its

potential to cause serious injury, damage, or death

when discharged.

(b) For purposes of this section:

(1) The potential of a firearm or

ammunition to cause serious injury,

damage, or death when discharged does

not make the product defective in

design.

(2) Injuries or damages resulting

from the discharge of a firearm or

ammunition are not proximately caused

by its potential to cause serious injury,

damage, or death, but are proximately

caused by the actual discharge of the

product.

liability cause of action based upon the improper

selection of design alternatives.

(d) This section is declaratory of existing law.

APPENDIX D

CAL. CIV. CODE § 3479

NUISANCE DEFINED

Anything which is injurious to health,

including, but not limited to, the illegal sale of

controlled substances, or is indecent or offensive

to the senses, or an obstruction to the free use of

property, so as to interfere with the comfortable

enjoyment of life or property, or unlawfully

obstructs the free passage or use, in the customary

manner, of any navigable lake, or river, bay,

stream, canal, or basin, or any public park, square,

street, or highway, is a nuisance.

APPENDIX E

CAL. CIV. CODE § 3480

PUBLIC NUISANCE

A public nuisance is one which affects at the

same time an entire community or neighborhood,

or any considerable number of persons, although

the extent of the annoyance or damage inflicted

upon individuals may be unequal.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.