# Opposition Brief — China North Industries Corp. v. Ileto

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1372%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005
- **Citation:** 543 U.S. 1050

## Text

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,
v.
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.

il
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

iv

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

Vv

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

vi
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

ix

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

1

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,

2

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

3

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

4-

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.

5

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

6

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

7

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.

8

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,

9

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

10

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

11

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

12

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.

13

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

14

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.

15

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)

16

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).

17

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.

18

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

19

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

20

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.

21

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

22

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.

23

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

public park, square, street, or highway, is a nuisance. ©
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).

24

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

25

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).

26

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.

27

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

28

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

29

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

30

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

la

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.

2a

Appendix A

(c) No social host who furnishes alcoholic
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.

3a
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.

(c) No social host who furnishes alcoholic
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.

4a
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.

(c) This section shall not affect a products
liability cause of action based upon the improper
selection of design alternatives.

(d) This section is declaratory of existing law.

Sa

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.

6a
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1372%3A2. Public record. Not legal advice.