Category: Anti Civil Rights ideas & “Friends”
- Do you believe that criminals and domestic abusers should be able to buy guns without background checks?
No background check ever stopped a criminal from getting his hands on a gun. When they steal them out of cop cars and FBI vans, they don’t leave a 4473 on the seat, and the ATF has never received a 4473 from the local dope house. And given the ever-loosening definition of “domestic abuser”, I’ve got reservations there, too.
- What is your proposal for keeping guns away from criminals, domestic abusers, terrorists and dangerously mentally ill people?
Since domestic abuse is a crime, and since terrorism is a crime, let me tighten that up for you: “What is your proposal for keeping guns away from criminals and dangerously mentally ill people?
Easy. When they are convicted of a crime, stick their arses in prison.
- Do you believe that a background check infringes on your constitutional right to “keep and bear arms”?
Yes.
- Do you believe that I and people with whom I work intend to ban your guns?
Yes.
- If yes to #4, how do you think that could happen ( I mean the physical action)?
The same way you banned guns in New York. The same way you banned guns in Chicago. The same way you banned guns in Washington DC. Duh.
- What do you think are the “second amendment remedies” that the tea party GOP candidate for Senate in Nevada( Sharron Angle) has proposed?
I don’t have a clue. Ask her.
- Do you believe in the notion that if you don’t like what someone is doing or saying, second amendment remedies should be applied?
Since I don’t like being robbed, and I don’t like being assaulted, yes, I do. As for speaking, that’s what the Amendment next to the Second is for.
- Do you believe it is O.K. to call people with whom you disagree liars and demeaning names?
If they’re lying, it’s fairly appropriate. And since folks from your side have called me everything from crazy to redneck to inbred, I’d have to ask your stance on that one.
- If yes to #8, would you do it in a public place to the person’s face?
Oh, yes.
- Do you believe that any gun law will take away your constitutional rights?
Yes.
- Do you believe in current gun laws? Do you think they are being enforced? If not, explain.
Damn skippy they’re being enforced. That’s why it takes me, a peace officer and an honourably-discharged member of the United States military, five days for your so-called “Instant Check” to clear me; it’s why West Point graduates are being gunned down in a Las Vegas Costco parking lot for legally carrying their pistol, so on and so forth.
- Do you believe that all law-abiding citizens are careful with their guns and would never shoot anybody?
You mean never shooting anybody, or never shooting anybody who needs it? I believe that all law-abiding citizens are human, and thus, not perfect. That’s not a reason to ban their guns, though.
- Do you believe that people who commit suicide with a gun should be included in the gun statistics?
I don’t think there should be gun statistics. Statistics are only there to be massaged into giving the person with the statistics the answer they want to see.
- Do you believe that accidental gun deaths should “count” in the total numbers?
See above.
- Do you believe that sometimes guns, in careless use or an accident, can shoot a bullet without the owner or holder of the gun pulling the trigger?
No. Modern gun design prevents the discharge of the gun without the trigger being pulled.
- Do you believe that 30,000 gun deaths a year is too many?
Compared to what? Compared to the number of traffic fatalities, it’s minuscule. Compared to the number of swimming pool fatalities, it’s still a small number. Compared to the number of people killed each year by medical malpractice it’s tiny. Compared to the number of people beaten to death each year by a pyromaniac midget with an ivory elephant goad, it’s a large number.
- How will you help to prevent more shootings in this country?
The same thing I’ve been doing every day since I turned twenty-one. Donate my time to educate and teach.
- Do you believe the articles that I have posted about actual shootings or do you think I am making them up or that human interest stories about events that have happened should not count when I blog about gun injuries and deaths?
The plural of “anecdote” is not “data”.
- There has been some discussion of the role of the ATF here. Do you believe the ATF wants your guns and wants to harass you personally? If so, provide examples ( some have written a few that need to be further examined).
Personally? No. Doesn’t mean that they aren’t an impersonal pain in my arse, though.
- Will you continue a reasonable discussion towards an end that might lead somewhere or is this an exercise in futility?
Since what you consider to be reasonable isn’t even in the same plane of reality with what I consider reasonable, probably not.
Allow me to explain.
I hear a lot about “compromise” from your camp … except, it’s not compromise.
Let’s say I have this cake. It is a very nice cake, with “GUN RIGHTS” written across the top in lovely floral icing. Along you come and say, “Give me that cake.”
I say, “No, it’s my cake.”
You say, “Let’s compromise. Give me half.” I respond by asking what I get out of this compromise, and you reply that I get to keep half of my cake.
Okay, we compromise. Let us call this compromise The National Firearms Act of 1934.
There I am with my half of the cake, and you walk back up and say, “Give me that cake.”
I say, “No, it’s my cake.”
You say, “Let’s compromise.” What do I get out of this compromise? Why, I get to keep half of what’s left of the cake I already own.
So, we have your compromise — let us call this one the Gun Control Act of 1968 — and I’m left holding what is now just a quarter of my cake.
And I’m sitting in the corner with my quarter piece of cake, and here you come again. You want my cake. Again.
This time you take several bites — we’ll call this compromise the Clinton Executive Orders — and I’m left with about a tenth of what has always been MY DAMN CAKE and you’ve got nine-tenths of it.
Then we compromised with the Lautenberg Act (nibble, nibble), the HUD/Smith and Wesson agreement (nibble, nibble), the Brady Law (NOM NOM NOM), the School Safety and Law Enforcement Improvement Act (sweet tap-dancing Freyja, my finger!)
I’m left holding crumbs of what was once a large and satisfying cake, and you’re standing there with most of MY CAKE, making anime eyes and whining about being “reasonable”, and wondering “why we won’t compromise”.
I’m done with being reasonable, and I’m done with compromise. Nothing about gun control in this country has ever been “reasonable” nor a genuine “compromise”.
BREAKING: Plano, TX police officer allows armed left-wing militia to illegally block traffic, reprimands driver who attempts to clear road, defend himself pic.twitter.com/2YTE0dvo9S
— Jack Poso 🇺🇸 (@JackPosobiec) May 8, 2021
If people thought the aggression of Black Lives Matter couldn’t happen in a red state like Texas, they were wrong. A new, viral video shows BLM protesters blocking traffic and brandishing guns in an attempt to intimidate those trying to get through in Plano, TX.
As a note for accuracy about who these protesters actually are, multiple Black Lives Matter shirts are visible. The signs being held up also indicate their allegiances.
At one point, you can see one of the protesters point a gun at the man who is yelling at them to move out of the road. But it’s what the police do that really has people talking.
Instead of trying to clear the street, the officer just stands there and only gets involved to deal with the driver. While it’s obvious he’s trying to keep things from escalating, that’s no excuse to stand idly by when unlawful behavior is clearly happening.
In response to this video, I’ve seen several BLM supporters claim that the protesters have a right to be armed. That’s true, but pretending anything in that video is legal shows a fundamental misunderstanding of how open carry (or any carry of a firearm) works. One of the things that a firearms instructor will drill into you is that you can not instigate a confrontation and then finish it with a gun while claiming self-defense. In this case, you can’t block traffic, entrap people, and then threaten them with a firearm. You certainly can’t shoot anyone in that situation. Once you instigate a confrontation as the BLM protesters did, the legal hurdles to claim self-defense become massively high.
Further, I want to note that there is no situation in Texas where a protest can legally block a roadway. Even if this protest was originally permitted, it had reached the point of law-breaking by the time the camera started rolling. Police should have moved to clear the road to de-escalate the situation. Instead, nothing was done until motorists started to get into it with protesters. That’s a failure of the police to do their jobs, likely due to restrictions placed on them further up the food chain.
This kind of lawless mob behavior is not just limited to urban centers. Plano is an affluent, Dallas suburb. If local authorities don’t get control, things are going to get out of hand, and people are going to die.
God didn’t deliver for President Joe Biden, who recently begged “the Lord” to help him erase the congressionally approved immunity that gun-makers have from lawsuits.
In a little-noticed decision with a major impact on the firearms industry, a federal judge in Arizona has ruled in favor of pistol manufacturer Glock and dismissed a suit brought by the Brady Campaign to Prevent Gun Violence on behalf of a man who was accidentally shot and paralyzed.
U.S. District Court Judge Susan Brnovich upheld liability immunity granted in the Protection of Lawful Commerce in Arms Act passed in 2005 to block gun-makers from a potential wave of industry-killing lawsuits.
Brnovich, nominated by former President Donald Trump and the wife of Arizona Attorney General Mark Brnovich, dismissed multiple claims in the suit that the act’s protections were illegal, writing, “The statute is constitutional.”
While she made her decision in mid-March, it is just now winning attention as Biden and top congressional Democrats begin a campaign to impose new gun control restrictions and end liability immunity for gun-makers.
“The dismissal of this case is welcome news and demonstrates the importance of the Protection of Lawful Commerce in Arms Act,” said Mark Oliva, the spokesman for the industry trade group National Shooting Sports Foundation.
“These attempts to hold manufacturers responsible for the criminal and negligent misuse of firearms are misguided and are attempts at legislation through litigation. The PLCAA law was passed with a bipartisan majority in both chambers of Congress to keep activists from attempting to bankrupt firearm manufacturers by tying them up in court with unfounded claims. This demonstrates why protecting this legislation against attacks by President Biden and gun control factions in Congress is critical,” he added.
Last month, Biden falsely claimed that the firearms industry is “the only industry in America” that can’t be sued, and he called for divine intervention to end that.
During a Rose Garden event, he said, “This is the only outfit that is exempt from being sued. If I get one thing on my list, (if) the Lord came down and said, ‘Joe, you get one of these,’ give me that one.” He added, “Because I tell you what, there would be a come-to-the-Lord moment these folks would have, real quickly.”
The suit was filed against Glock, an Austrian gun-maker, on behalf of Carlos Travieso Jr., who was in a car with others returning from a church retreat in 2018. Another teenager found the 9 mm pistol in the car and apparently thought it was safe because the magazine holding the bullets was missing. However, there was a bullet in the chamber, and when she pulled the trigger, it hit Travieso, paralyzing him.
The suit charged that Glock, the No. 1 firearms manufacturer in U.S. sales, did not have adequate safety features on the gun warning that a live round was in the chamber. The pistol does have a chamber indicator, but the suit said the gun was defective because it did not include other warnings or safeties.
Glock said it was covered by the immunity act because the shooting was a criminal act.
Oliva told Secrets, “This is an example of lawyers attempting to put the blame for negligent use of a firearm on a manufacturer. The facts of the case are clear. The negligent mishandling of a firearm resulted in tragic effects. There was no defect in the product, design flaw, and as the opinion clearly notes, claims of warning notifications do not make for a claim of product defect.”
Brnovich agreed with Glock in her victory for the Second Amendment. She also noted that even the liberal U.S. Circuit Court of Appeals has repeatedly rejected challenges to immunity for gun-makers.
“A fair reading of the PLCAA shows that Congress intended the scope of its preemption to include claims like the plaintiff’s. The PLCAA’s plain text extends preemption to plaintiff’s tort and products liability claims. Its unambiguous terms bar any civil cause of action, regardless of the underlying theory, when a plaintiff’s injury results from ‘the criminal or unlawful misuse’ of the person or a third party, unless a specific exception applies,” she wrote.
No. CV-20-00523-PHX-SMBUNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
Traviesov.Glock Inc.
Decided Mar 10, 2021
No. CV-20-00523-PHX-SMB03-10-2021Carlos Daniel Travieso, Plaintiff, v. Glock Incorporated, et al., Defendants.Honorable Susan M. Brnovich United StatesDistrict Judge
ORDER
Pending before the Court is Defendant, Glock Incorporated’s, Motion to Dismiss for Failure toState a Claim and pursuant to the Protection of Lawful Commerce in Arms Act (“PLCAA”).(Doc. 19.) Plaintiff filed a response, (Doc. 21),and Defendant has filed a reply. (Doc. 25.) Part of Plaintiff’s response challenged the constitutionalityof the PLCAA,15 U.S.C. §§ 7901-7903. (Doc. 21at 13-17.) As such, the United States hasintervened pursuant to28 U.S.C. § 2403(a) andFed. R. Civ. P. 5.1(c) and 24(a)(1) to defend theconstitutionality of the statute. (Doc. 30.) Oralargument on the matter was held on February 12,2021, and after hearing from all parties, the Courttook the matter under advisement. (Doc. 37.) TheCourt now issues the following decision.
I. Factual and Procedural Background
On March 17, 2018, Plaintiff, Carlos DanielTravieso, was shot in the back with a Glock 19nine-millimeter handgun (“the handgun”). Theshooting occurred while Plaintiff was travellinghome from a youth camping trip in a churchleader’s vehicle. (Doc. 1 at 8.) The handgun wasalso in the vehicle. (
Id
. at 7.) By way of facts notclear in Plaintiff’s
*2
Complaint, a fourteen-year-old girl (“the Shooter”) who was in the vehiclecame into possession of the handgun. (
Id
.) Whilethe Shooter possessed the handgun, it discharged,firing the live round in its chamber. (
Id
.) Plaintiff was hit by the round in his back and sufferednumerous severe spinal injuries and injuries to hisorgans, including injuries that rendered him a paraplegic. (
Id
. at 8-9.)
2
No criminal charges were filed against any partyconnected to the shooting. (
Id
.) Plaintiff’sComplaint alleges that the handgun’s magazinehad been removed. (Doc. 1 at 8.) The Complaintfurther contends that, due to the absence of amagazine, the Shooter was deceived into believingthe magazine was empty, even though a live roundremained in the chamber. (
Id
.) Plaintiff allegesthat at the time of the shooting, the gun had not been modified in any significant way and retainedthe same features and “lack of safety features andwarnings” as it did when manufactured and sold.(
Id
. at 7-8.)This alleged lack of safety features is the center of Plaintiff’s suit. Plaintiff asserts his shooting“resulted from the negligent, reckless,unnecessary, and unreasonably dangerous actionsof Defendants, including their design,manufacturing, marketing, distribution, and sale of a handgun without a magazine disconnect safety,effective loading chamber indicator, internal lock,or other safety features that would have preventedit from being fired by a child or any other personwho did not have proper authority or maturity touse it, or effective warnings.” (
Id
. at 12.) Plaintiff brings four claims against the Defendants. Hisfirst claim alleges that Defendants are liable to
1
him under a theory of strict products liability based on the defective design of their product. (
Id
.at 17-20.) Second, he alleges that Defendants areliable to him under a theory of strict productsliability for an “information defect” and the failureto place adequate warnings on their product. (
Id
. at21-24.) Plaintiff’s third and fourth claims are for negligence rather than for strict products liability.(
Id
. at 24-25.) His third claim alleges Defendantshad a duty not to expose others to unreasonablerisks of injury and breached that duty by thenegligent design of the handgun. (
Id
. at 24.) Hisfourth claim also alleges Defendants had a generalduty not to expose others to reasonablyforeseeable risks of injury, and that Defendants breached that
*3
duty by “by negligentlymarketing guns,” and providing inadequatewarnings on the firearms themselves. (
Id
. at 25-26.) Plaintiff also seeks punitive damages againstthe Defendants for alleged willful and wantondisregard for others. (Doc. 27-28.)
3
Defendant Glock Incorporated has responded tothe Complaint with a Motion to Dismiss, (Doc.19), arguing Plaintiff’s claims against it are barred by the PLCAA because the Plaintiff’s shootingwas caused by the criminal act of a third party. (
Id
.at 6) Defendant alleges the shooter’s criminal actsinclude possession of a handgun by a juvenile inviolation of18 U.S.C. § 922(x)(2)(A), possessionof a handgun by an unemancipated minor inviolation ofAriz. Rev. Stat. § 13-3111(A),endangerment in violation ofAriz. Rev. Stat. § 13-1201(A), as well as assault and aggravated assaultin violation ofAriz. Rev. Stat. §§ 13-1204(A)(1)& (2). (Doc. 19 at 6.)Plaintiff filed a Response, (Doc. 21), arguing thecorrect statutory construction of the PLCAAshows the statute is inapplicable to the presentcase. Plaintiff also argues that even if the generalstatute did apply, his claims are allowed under thePLCAA’s “product defect exception.” (
Id
. at 5-8);15 U.S.C. § 7903(5)(A)(v). Finally, Plaintiff argues that if the PLCAA does bar its action, thenthe statute itself is unconstitutional under the Fifthand Tenth amendments to the United StatesConstitution. (Doc. 21 at 11-17.)Defendant in turn filed a Reply, (Doc. 25), arguingthat the PLCAA’s immunity clearly applies, andfurther arguing that the “product defect” exceptiondoes not apply because the shooting of Plaintiff “was caused by a volitional act that constituted acriminal offense[.]” (
Id
. at 2-3. (quoting15 U.S.C.§ 7903(5)(A)(v))).Because Plaintiff challenged the constitutionalityof the PLCAA, the United States also intervenedto defend the PLCAA’s constitutionality. (Doc.30.) The Government argues the PLCAA is aconstitutional application of Congress’senumerated powers under the Commerce clause.(
Id
. at 8.) Further, the Government contends thisCourt’s resolution of the constitutionality of thePLCAA is bound by the decision of the NinthCircuit in
Ileto v
.
Glock
, which directly rejectedPlaintiff’s arguments.565 F.3d 1126, 1131 (9thCir. 2009),
cert
.
denied
, 560 U.S. 924 (2010).
*44
II. Legal BackgroundA. The PLCAA
On October 26, 2005, Congress enacted thePLCAA into law. 109 P.L. 92, 119 Stat. 2095. ThePLCAA prohibits “the institution of a ‘qualifiedcivil liability action’ in any state or federal court.”15 U.S.C. § 7902(a). The act defines a “qualifiedcivil liability action” asA civil action or proceeding or anadministrative proceeding brought by any person against a manufacturer or seller of [a firearm that has been shipped or transported in interstate or foreigncommerce]…for damages, punitivedamages, injunctive or declaratory relief,abatement, restitution, fines, or penalties,or other relief, resulting from the criminalor unlawful misuse of a qualified product by the person or a third party…[.]
15 U.S.C. § 7903(5)(A);
see also
15 U.S.C. §7903(4). While the PLCAA creates an immunityfrom “qualified civil liability actions,” thisimmunity is subject to several exceptions.15U.S.C. § 7903(5)(A)(i)-(vi). For example, thestatute does not protect a seller who knowinglytransfers a firearm that will be used in a crime of violence, nor a seller being sued for negligententrustment or negligence per se. Nor does thePLCAA protect a manufacturer or seller whoknowingly violates “a State or Federal statuteapplicable to the sale or marketing” of a firearm.Most applicable to this action, the PLCAA doesnot give immunity from:15 U.S.C. § 7903(5)(A)(v) (emphasis added).an action for death, physical injuries or property damage resulting directly from adefect in design or manufacture of the product, when used as intended or in areasonably foreseeable manner,
except that where the discharge of the product wascaused by a volitional act that constituted a criminal offense
, then such act shall beconsidered the sole proximate cause of anyresulting death, personal injuries or property damage…[.]
B. The Second Amendment
The PLCAA was partly passed to safeguard theSecond Amendment from efforts to
*5
indirectlyassault the right to bear arms.
see
15. U.S.C. §§7901(a)(1)-(3), (b)(2). The Second Amendmentdefends an individual’s right to “keep and bear arms lawful purposes,” which the Supreme Courthas called “fundamental[ly]…necessary to our system of ordered liberty.”
McDonald v
.
City of Chicago
,561 U.S. 742, 778, 781 (2010). TheSecond Amendment also protects “ancillaryrights” necessary to realize the core right to possess a firearm.
Teixeira v
.
Cty
.
of Alameda
,873F.3d 670, 677 (9th Cir. 2017) (citing
Jackson v
.
City and County of San Francisco
,746 F.3d 953,968 (9th Cir. 2014),
cert
.
denied
, 135 S. Ct. 2799(2015)). After all, the fundamental right to bear arms “‘wouldn’t mean much’ without the ability toacquire arms.”
Id
. (quoting
Ezell v
.
City of Chicago
,651 F.3d 684, 704 (7th Cir. 2011)).
5
The PLCAA guards against infringement of Second Amendment rights by ensuring a citizen’scontinued ability to “acquire arms.”
Teixeira
,873F.3d at 677;15 U.S.C. § 7901(b)(2). The Actoperates by preventing efforts to achieveregulation by litigation, in which groups seek togain by judicial decree policy goals which, fromconstitutional defect or lack of political power, areunattainable through the legislative process. 15.U.S.C. §§ 7901(a)(8). Such efforts are especiallysuspect where they implicate the Court’s duty todefend rights protected by the Constitution fromattack. THE FEDERALIST No. 78 (Alexander Hamilton) (Giving to the judiciary the duty tosafeguard the Constitution from attack and statingthat “Without this, all the reservations of particular rights or privileges would amount to nothing.”)
C. Previous Ninth Circuit Litigation
Since its enaction, the PLCAA has been litigatednumerous times in both state and federal courts.The Ninth Circuit examined multiple challenges tothe act in the case of
Ileto v
.
Glock
,565 F.3d 1126(9th Cir. 2009). In
Ileto
, a gunman illegally in possession of multiple firearms, shot and injuredfive people at a community center in California.
Id
. at 1130. The same gunman later shot and killedJoseph Ileto.
Id
. Ileto’s widow and the other victims brought a civil action againstmanufacturers and sellers of the guns used in theshooting.
Id
. During the pendency of the case,Congress passed the PLCAA.
Id
. at 1131.
*6
Confronted with the statute, the
Ileto
plaintiffsargued it did not apply to their case because their claims fell within the “predict exception” of thePLCAA.
Id
. at 1132. In the alternative the
Ileto
plaintiffs argued the statute was unconstitutional.
Id
. at 1131. However, the Ninth Circuit wasunconvinced.
6
Instead, the Ninth Circuit found the plaintiffs’claims were barred by the PLCAA’s general prohibition against civil actions unless one of thePLCAA’s exceptions applied.
Id
. at 1131-32(citing15 U.S.C. § 7903(5)(A)). The
Ileto
courtfurther held that plaintiffs’ case did not fall withinthe “predict exception” of the PLCAA and as suchtheir claims were barred.
Id
. at 1136. Finally, the
Ileto
court rejected the plaintiffs’ contention thatthe PLCAA was unconstitutional. In holding theAct constitutional, the court noted it was“carefully constrained…to the confines of theCommerce Clause.”
Id
. at 1140. Further, the courtheld that the PLCAA passed rational basisscrutiny, the plaintiffs had no vested propertyinterest in their claim “until a final unreviewable judgment [was] obtained,” and that regardless, thePLCAA did not “completely abolish [p]laintiffs’ability to seek redress,” because claims againstother defendants were permitted.
Id
. at 1140-44.
III. Standard of Review
To survive a Rule 12(b)(6) motion for failure tostate a claim, a complaint must meet therequirements of Rule 8(a)(2). Rule 8(a)(2) requiresa “short and plain statement of the claim showingthat the pleader is entitled to relief,” so that thedefendant has “fair notice of what the . . . claim isand the grounds upon which it rests.”
Bell Atl
.
Corp
.
v
.
Twombly
,550 U.S. 544, 555 (2007)(quoting
Conley v
.
Gibson
,355 U.S. 41, 47(1957)). Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under acognizable legal theory.”
Balistreri v
.
Pacifica Police Dep’t
,901 F.2d 696, 699 (9th Cir. 1988). Acomplaint that sets forth a cognizable legal theorywill survive a motion to dismiss if it containssufficient factual matter, which, if accepted astrue, states a claim to relief that is “plausible on itsface.”
Ashcroft v
.
Iqbal
,556 U.S. 662, 678 (2009)(quoting
Twombly
,550 U.S. at 570). In ruling on aRule 12(b)(6) motion to dismiss, the well-pledfactual allegations are taken as true and construedin the
*7
light most favorable to the nonmoving party.
Cousins v
.
Lockyer
,568 F.3d 1063, 1067(9th Cir. 2009). However, legal conclusionscouched as factual allegations are not given a presumption of truthfulness, and “conclusoryallegations of law and unwarranted inferences arenot sufficient to defeat a motion to dismiss.”
Pareto v
.
FDIC
,139 F.3d 696, 699 (9th Cir. 1998).
7
This Court’s decisions are bound by the pastrulings of the Ninth Circuit.
Hart v
.
Massanari
,266 F.3d 1155, 1171 (9th Cir. 2001) (“Once a panel resolves an issue in a precedential opinion,the matter is deemed resolved, unless overruled bythe court itself sitting en banc, or by the SupremeCourt.”)) “A district judge may not respectfully (or disrespectfully) disagree with his learnedcolleagues or his own court of appeals who haveruled on a controlling legal issue[.]”
Id
. at 1170.“Binding authority within this regime cannot beconsidered and cast aside; it is not merelyevidence of what the law is. Rather, caselaw on point is the law.”
Id
. “In determining whether it is bound by an earlier decision, a court considers notmerely the ‘reason and spirit of cases’ but also ‘theletter of particular precedents.'”
Id
. (citing
Fisher v
.
Prince
, 97 Eng. Rep. 876, 876 (K.B. 1762)).“This includes not only the rule announced, butalso the facts giving rise to the dispute, other rulesconsidered and rejected, and the views expressedin response to any dissent or concurrence.”
Id
.Thus, where applicable circuit law governs anissue, this Court
must
apply it to the case.
Id
. at1171 (“Circuit law…binds all courts within a particular circuit, including the court of appealsitself.”).
IV. Analysis
Plaintiff brings arguments based on the statutoryconstruction of the PLCAA as well as argumentsalleging the PLCAA is unconstitutional.Whenever possible, a court should avoid passingon constitutional questions if there are other grounds upon which a case may be disposed.
See Pearson v
.
Callahan
,555 U.S. 223, 241 (2009);
see also Scott v
.
Harris
,550 U.S. 372, 388 (2007)
(Breyer, J., concurring) (quoting
Spector Motor Service
,
Inc
.
v
.
McLaughlin
,323 U.S. 101, 105(1944));
see also Ashwander v
.
TVA
,297 U.S.288, 347 (1936) (Brandeis, J., concurring) (“TheCourt will not pass upon a constitutional question
*8
although properly presented by the record, if there is also present some other ground uponwhich the case may be disposed of”). As such, theCourt turns first to Plaintiff’s arguments regardingthe statutory construction of the PLCAA.
8
A. Statutory Construction of the PLCAA andthe Federalism Canon
Before turning to the substantive construction of the PLCAA, the Court will address the impact of the federalism canon on its analysis. The core of the federalism canon is that “unless Congressconveys its purpose clearly, it will not be deemedto have significantly changed the federal-state balance.”
United States v
.
Bass
,404 U.S. 336, 349(1971);
see also John v
.
United States
,720 F.3d1214, 1223 n. 52 (9th Cir. 2013). Thus, the Courtrequires a clear statement of congressional intent before it will “presume Congress to haveauthorized…a stark intrusion into traditional stateauthority.”
United States v
.
Walls
,784 F.3d 543,547 (9th Cir. 2015) (quoting
Bond v
.
United States
,572 U.S. 844, 866 (2014)).
12
1
Defendant and the Government mistakenlyargue Plaintiff’s federalism arguments as based on the canon of constitutionalavoidance. While the federalism canon isrelated to the canon of constitutionalavoidance, the doctrines are notsynonymous.
See
,
e
.
g
.,
Pennhurst StateSch
.
& Hosp
.
v
.
Halderman
,451 U.S. 1,16-17 (1981) (listing cases whereCongress’s actions were admittedlyconstitutional, but still required a clear statement of Congress’s intent to upset thetraditional balance of state and federal power).
2
For the purposes of this motion, the Courtwill assume without deciding that thePLCAA interferes with a sphere of traditional state authority.
But see United States v
.
Morrison
,529 U.S. 598, 611(2000) (quoting
United States v
.
Lopez
,514 U.S. 549, 577 (1995) (Kennedy, J.,concurring) (referring to areas of “traditional state concern” as “areas havingnothing to do with the regulation of commercial activities”)).
However, Plaintiff argues the federalism canonrequires more. Plaintiff argues that even whereCongress has expressly preempted the states, thefederalism canon impacts this Court’s analysis on
the scope
of that preemption. Thus, Plaintiff, atvarious junctures, argues this Court must construethe PLCAA as preventing only “novel” and“ungrounded” theories of tort relief, (Doc. 21 at17), and argues the Court cannot construe thePLCAA to apply to traditional common law torttheories in the absence of
additional clear statements
that the scope of preemption reachesthose claims. (
See
,
e
.
g
., Doc. 21 at 5-6, 7-8(arguing the scope of the PLCAA’s preemptioncannot bar Plaintiff’s claims absent an
*9
“unmistakable intent” to do so.).)
9
Plaintiff is incorrect to argue that federalismrequires an additional “clear statement” of thestatute’s preemptive scope. Once the Courtestablishes Congress’s clearly stated intent to preempt the states, “any understanding of thescope of a pre-emption statute must rest
primarily
on ‘a
fair understanding of congressional purpose
.'”
Medtronic
,
Inc
.
v
.
Lohr
,518 U.S. 470,485-86 (1996) (quoting
Cipollone v
.
Liggett Group
,505 U.S. 504, 530 n.27 (1992) (emphasisadded)). Further, the purpose and scope of preemption is “primarily…discerned
from thelanguage of the pre-emption statute
and the‘statutory framework’ surrounding it.”
Id
. (citing
Gade v
.
National Solid Wastes Management Ass’n
,505 U.S. 88, 111 (1992)). The Court considers the“‘presumption against the pre-emption of state police power regulations’ to support a narrowinterpretation [of the preemption’s scope.]”
Id
. at485;
but see Puerto Rico v
.
Franklin Cal
.
Tax-Free
Trust
,136 S. Ct. 1938, 1946 (2016) (declining toapply the presumption against preemption to the“express preemption clause” of a bankruptcystatute). However, unlike the federalism canon, the presumption against preemption is a
presumption
,
not a “clear statement”
rule. It helps govern theCourt’s choice between two plausibleconstructions of a statute, but does not overridethe unambiguous intent of Congress as revealed by the text and framework of the law.
AltriaGroup
,
Inc
.
v
.
Good
,555 U.S. 70, 77 (2008)(applying the presumption against preemption“when the text of a pre-emption clause issusceptible of more than one plausible reading”);
see also Bates Dow Agrosciences LLC
,544 U.S.431, 449 (2005).Here the PLCAA contains a clear statement of Congress’s intent to preempt the states.28 U.S.C.§ 3702. As such, the role of the Court is merely toconstrue the scope of that preemption in light of the congressional purpose of the statute asrevealed by the text and statutory framework.
Altria Group
,555 U.S. at 77;
Bates
,544 U.S. at449;
Medtronic
,518 U.S. at 485-86;
Cipollone
,505 U.S. at 530 n.27;
Gade
,505 U.S. at 111.While the Court will factor the presumptionagainst preemption of the states into its analysis,
Medtronic
,518 U.S. at 485, the presumption ismerely one factor in the Court’s analysis. It willnot override the intended purpose of Congressrevealed by the text and framework
*10
of thePLCAA.
Altria Group
,555 U.S. at 77.
10
B. Scope of the PLCAA’s Preemption of “Qualified Civil Liability Actions”
Plaintiff argues that due to the federalism canon,the correct statutory interpretation of the PLCAAshows the Act was not intended to bar his case.Plaintiff further argues the PLCAA only “limit[s]liability where harm was ‘solely caused’ bycriminal or unlawful misuse.”
See
15 U.S.C. §7901(b)(1), (a)(6). Finally, Plaintiff appeals to thelegislative history of the PLCAA, arguing that thestatements of some legislatures indicate the actwas never intended to bar claims like thePlaintiff’s. The Court will examine each argumentin turn.
1. The Scope of PLCAA Preemption reachesPlaintiff’s Claims
Plaintiff argues that once the interests of federalism are factored into the Court’s analysis,the PLCAA’s preemptive scope is correctlyconstrued as reaching only novel claims and wasnot intended to preempt established theories of common law liability. However, the text andstatutory framework of the PLCAA defeatsPlaintiff’s argument. The PLCAA clearly statesCongress’s intent to intrude on Arizona’s authorityto hear qualified civil liability actions.15 U.S.C. §7902(a) (“[Q]ualified civil liability action[s] maynot be brought in any Federal or State court.”).Further, a fair reading of the PLCAA shows thatCongress intended the scope of its preemption toinclude claims like the Plaintiff’s. The PLCAA’s plain text extends preemption to Plaintiff’s tort and products liability claims. Its unambiguous terms bar
any
civil cause of action, regardless of theunderlying theory, when a plaintiff’s injury resultsfrom “the criminal or unlawful misuse” of the person or a third party, unless a specific exceptionapplies.15 U.S.C. §§ 7902(a), 7903(5)(A).Further, the provisions of the law indicateCongress intended to generally preempt commonlaw torts.The doctrine of
expressio unius est exclusioalterius
also shows Congress intended the scopeof preemption to bar cases like the Plaintiff’s because the PLCAA contains specific exceptionsallowing limited distinct common law causes of action. “The doctrine of
expressio unius est exclusio alterius
‘as applied to statutoryinterpretation creates a
*11
presumption that whena statute designates certain persons, things, or manners of operation, all omissions should beunderstood as exclusions.'”
Silvers v
.
Sony
Pictures Entm’t
,
Inc
.,402 F.3d 881, 885 (9th Cir.2005) (quoting
Boudette v
.
Barnette
,923 F.2d754, 756-57 (9th Cir. 1991)).The PLCAA designates specific common lawactions still allowed under the act.15 U.S.C. §§7903(5)(A)(i)-(vi). The exceptions listed allow“action[s] for negligent entrustment or negligence per se,” “action[s] for breach of contract or warranty,” as well as certain products liabilityactions.15 U.S.C. §§ 7903(5)(A) (ii), (iv)-(v).Under
expressio unius est exclusio alterius
, thePLCAA’s designation of specific common lawcauses of action as exempt from its preemptivescope shows its preemption was intended to reachcommon law actions not so designated. This resultaccords well with the Ninth Circuit’s conclusion in
Ileto
, where that court also found the explicitexclusion of
per se
negligence actions evidenced acongressional intent to preempt other common lawtort claims.565 F.3d at 1135 n.6.The canon against surplusages also shows thatCongress intended for the scope of the PLCAA’s preemption to reach Plaintiff’s claims. Courts have“long followed the principle that ‘statutes shouldnot be construed to make surplusage of any provision.'”
Northwest Forest Res
.
Council v
.
Glickman
,82 F.3d 825, 834 (1996) (quoting
Wilshire Westwood Assocs
.
v
.
Atlantic Richfield Corp
.,881 F.2d 801, 804 (9th Cir. 1989));
see alsoCorley v
.
United States
,556 U.S. 303, 314 (2009);ANTONIN SCALIA & BRYAN A. GARNER,READING LAW: THE INTERPRETATION OFLEGAL TEXTS 174 (2012) (noting no provisionshould be given an interpretation which causes itto have no consequence). Yet, if the Court findsCongress did not intend the PLCAA’s preemptionto reach established common law claims, thenmost of the statute’s exceptions would bemeaningless. If the scope of preemption wasmeant to be as limited as Plaintiff claims, therewould be no need to include specific exceptions inthe law allowing actions for
per se
negligence,negligent entrustment, breach of contract, breachof warranty, or products liability. The Courtcannot accept a reading of the statute’s operative provisions that renders such a large section
*12
meaningless.
12
2. The PLCAA’s Prefatory Language Does NotNarrow its Preemptive Scope
The Court is not alone in referencing the canonagainst surplusage to interpret the PLCAA.Plaintiff himself makes a similar argument.Plaintiff argues the PLCAA’s purposes sectionindicates the act was passed “[t]o prohibit causesof action for the harm
solely caused
by thecriminal or unlawful misuse of firearms.”15U.S.C. § 7901 (b)(1) (emphasis added). A similar statement in the PLCAA’s findings section decries“[t]he possibility of imposing liability…for harmthat is
solely caused
by others.”15 U.S.C. §7901(a)(6) (emphasis added). Plaintiff arguesthese and other statements show the PLCAA wasonly intended to preempt cases where a plaintiff sought to hold a gun manufacturer liable for conduct wholly beyond its control, not cases likePlaintiff’s where wrongful conduct is alleged onthe part of the gun manufacturer. Plaintiff arguesthat this is the only possible construction of thePLCAA because any broader construction wouldrender the phrase “solely caused” superfluous.While instructive, a statute’s purposes sectioncannot control over the law’s express terms.Preambles and prefatory language, such as thefindings and purposes section of the PLCAA, arevalid sources for determining congressional intent.ANTONIN SCALIA & BRYAN A. GARDNER,READING LAW 167-70 (2012). However, thesesources are used to resolve ambiguities, not tocreate them, and it is well established that the purposes section of a statute will not control in theface of clear enacting provisions.
Jogi v
.
Voges
,480 F.3d 822, 834 (7th Cir. 2007) (citing cases);
see also H
.
J
.
Inc
.
v
.
Nw
.
Bell Tel
.
Co
.,492 U.S.229, 245 (1989); 2A SUTHERLAND,STATUTES AND STATUTORYCONSTRUCTION § 47.04, at 146 (5th ed. 1992, Norman Singer ed.). In the present case, the
language of the PLCAA’s enacting provisionsclearly shows Congress intended to preempt a broader scope of actions than those suggested bythe Plaintiff. As such, the recitation of the phrase“solely caused” in the purposes section will notcontrol the Court’s analysis.Further, Plaintiff’s suggested interpretation is agreater departure from the canon
*13
againstsurplusages because, as discussed, it renders manyof the statute’s exceptions meaningless. If theCourt were to give credence to Plaintiff’sargument that the PLCAA only bars cases wherethe harm is “solely caused” by third parties, itwould be hard pressed to explain why exceptionswere needed to allow action of negligence
per se
or negligent entrustment.15 U.S.C. § 7903(ii).Plaintiff’s proffered construction also renders the predicate exception entirely superfluous; if PLCAA preemption never covered cases allegingany wrongful conduct by a manufacturer, then theexception allowing actions for a seller’s knowingviolation of State or Federal gun laws would becompletely unneeded.15 U.S.C. § 7903(iii). Thisconstruction would also render parts of the“products liability” exception superfluous.15U.S.C. § 7903(v). The products liability exceptionstates that “where the discharge of the product wascaused by a volitional act that constituted acriminal offense, then such act
shall be considered the sole proximate cause
” of any harm.
Id
.(emphasis added). This limitation on proximatecause would be rendered absolutely meaningless if the PLCAA in general only applied to cases whereharm was “solely caused” by a third-party badactor. The Court will not read the inclusion of “solely caused” in the statute’s purposes section torender entire sections of the statute’s enacting provisions meaningless.
13
3. The PLCAA’s Legislative History Does NotFavor the Plaintiff
Plaintiff argues that the legislative history of thePLCAA favors adopting his narrow interpretationof the law’s preemptive scope. Like statutory preambles, legislative history can be used toresolve ambiguous language in a statute, but doesnot control over the clear and express terms of alaw.
BedRoc Ltd
.,541 U.S. 176, 187 n. 8 (2004)(“resort to legislative history
only when necessaryto interpret ambiguous statutory text
” (emphasisadded)). Further, courts must remain criticallyaware of the tendency of “[j]udicial investigationof legislative history…to become an exercise in‘looking over a crowd and picking out one’sfriends.'”
Exxon Mobil Corp
.
v
.
Allapattah Servs
.,545 U.S. 546, 568 (2005) (citing WALD, SOMEOBSERVATIONS ON THE USE OFLEGISLATIVE HISTORY IN THE 1981SUPREME COURT TERM, 68 Iowa L. Rev. 195,214 (1983)).
*1414
It appears to the Court that, contrary to Plaintiff’ssuggestion, the legislative history of the PLCAAdoes not uniformly evidence Congress’s intent toadopt a narrow scope of preemption. Statements of multiple congressional speakers suggest thePLCAA was intended to preempt the sorts of product liability suits that might be used as aroundabout method of regulating the firearmsindustry.
See
151 Cong. Rec. 104 at S9074,S9087. Further, the legislative history of thePLCAA specifically referenced the
Ileto
case aswhat the PLCAA was intended to preempt,
Ileto
,565 F.3d at 1137 (citing 151 Cong. Rec. E2162-03), even though the
Ileto
plaintiffs had broughtclaims under established common law theories of negligence and public nuisance.For the above reasons, the Court finds thatCongress intended the preemptive scope of thePLCAA to generally bar common law cases likePlaintiff’s. 15 U.S.C. §§ 7902(a); 7903(5)(A). Assuch, the PLCAA requires the Court to dismissPlaintiff’s claims unless one of the exceptions toits preemption applies.
See
15 U.S.C. §§ 7903(5)(A)(i)-(vi).
C. Statutory Interpretation of the PLCAA’sProduct Liability Exception
Id
. According to Plaintiff, this exception meansthat even if the PLCAA generally preempts casesagainst manufacturers, claims like Plaintiff’s,alleging a firearm was defectively designed, arestill allowed. In response, Defendant points outthat product liability claims are still preempted“where the discharge of the product was caused bya volitional act that constituted a criminaloffense[.]”15 U.S.C. § 7903(5)(A)(v). However,Plaintiff argues
*15
this “exception to theexception” does not apply because there is noclear statement of Congress’s “intent to bar products liability cases…involving anunintentional act of a juvenile.” (Doc. 21 at 10-11.) Plaintiff further argues that under the canon of meaningful variation the PLCAA’s productliability preemption should not apply to accidentalshootings by a juvenile because such shooting arenot criminal offenses under Arizona law. Finally,Plaintiff argues that his injuries were not caused by the shooter’s “volitional” act. The Court willagain examine each of the arguments in turn.Plaintiff argues that even if the Court finds thescope of the PLCAA extends to common lawclaims generally, his theories of relief are stillallowed under the products liability exception tothe PLCAA.15 U.S.C. § 7903(5)(A)(v). The product liability exception states that the PLCAAwill not bar an action for death, physical injuries or property damage resulting directly from adefect in design or manufacture of the product, when used as intended or in areasonably foreseeable manner, except thatwhere the discharge of the product wascaused by a volitional act that constituted acriminal offense, then such act shall beconsidered the sole proximate cause of anyresulting death, personal injuries or property damage…[.]
15
1. The Product Liability Exception and“Information Defect” Claims
Before construing the product liability exception,the Court notes this exception, by its plain terms,can do nothing to save Plaintiff’s claims based onalleged information defects or for inadequatewarnings in Defendant’s products. The NinthCircuit previously held that in passing thePLCAA, “Congress clearly intended to preemptcommon-law claims, such as general tort theoriesof liability.”
Ileto
,565 F.3d at 1135. The
Ileto
court noted this conclusion was bolstered “byCongress’ inclusion of…15 U.S.C. § 7903(5)(A)(ii).”
Id
. at 1135 n. 6. The court explained thespecific inclusion of15 U.S.C. § 7903(5)(A)(ii),allowing claims for negligence per se andnegligent entrustment, demonstrated that Congressconsciously considered how to treat tort claimsand elected to preempt all theories of relief exceptthose included in the exception.
Id
.Under the same rational, this Court concludes thateven if the “product liability” exception allowsPlaintiff’s claim for design defect, it does notallow his claims of information defect or for inadequate warnings. Products liability claims arealmost uniformly brought on one of three theories:(1) defects in the design, (2) defects in themanufacturing process, or (3) defects based oninadequate instructions or warnings to reduce aforeseeable risk of harm posed by the product.
See
Restatement (Third) of Torts: Products Liability, §2. Yet, while the PLCAA specifically creates anexception for “action[s] for…damage resultingdirectly from a
defect in design or manufacture
of the product,”15 U.S.C. § 7903(5)(A)(v)(emphasis added), it has no similar exclusion for actions resulting from defective instruction or inadequate warnings. The inclusion of the
*16
“products liability” exception in15 U.S.C. §7903(5)(A)(v) “demonstrates that Congressconsciously considered how to treat [productsliability] claims.”
See Ileto
565 F.3d at 1135 n. 6.The fact that Congress carved out an exceptionspecifically allowing cases based on defectivedesign and manufacture without creating a similar exception for “information defect” and
“inadequate warning” claims can only lead thisCourt to presume the omission was intentional. Assuch, the Court concludes that even if it adoptsPlaintiff’s construction of the “products liability”exception, the scope of that exception will notallow Plaintiff’s information defect and inadequatewarning claims to go forward.
2. Clear Statement of Intent in15 U.S.C. §7903(5)(A)(v)
Plaintiff essentially reiterates his argument abovethat under the federalism canon the PLCAA must be construed narrowly. According to Plaintiff, “[the] PLCAA does not unmistakably state anintent to bar products liability cases…involving anunintentional act of a juvenile.” However, as noted
supra
, the PLCAA does contain a clear statementof Congress’s intent to preempt the states. Todetermine whether the scope of that preemptionextends to this case, the Court looks primarily tothe statute’s text and framework with the goal of reaching “”a
fair understanding of congressional purpose
.'”
Medtronic
,518 U.S. at 485-86 (quoting
Cipollone v
.
Liggett Group
,505 U.S. 504, 530 n.27 (1992) (emphasis added)). Though the Courtshould consider the “‘presumption against the pre-emption” in construing the scope of preemptionnarrowly,
Medtronic
,
Inc
.,518 U.S. at 485, theultimate goal is to discover Congress’s intent.Because of this, the Court rejects Plaintiff’sargument that his interpretation of the productsliability exception is compelled by the absence of an additional plain statement expressly extendingthe PLCAA to “cases…involving an unintentional[shooting by] a juvenile.” Instead, the Court willdetermine the scope of preemption based on itsunderstanding of Congress’s purpose.
3. Canon of Meaningful Variation
Plaintiff also argues that under the canon of meaningful variation, differences in the statute’slanguage indicate his case is allowed becausePlaintiff was shot by a juvenile. The meaningfulvariation canon states that where Congress usescertain language in one part of
*17
the statute anddifferent language in another, the variation is presumed intentional and the different wordsshould be given different meanings.
Keene Corp
.
v
.
United States
,508 U.S. 200, 208 (1993);
Russello v
.
United States
,464 U.S. 16, 23 (1983).
17
Two applicable subsections of the PLCAA havediffering language. In15 U.S.C. § 7903(5), thelaw generally preempts “civil action[s]…resultingfrom the
criminal or unlawful misuse
of aqualified product…[.]” (emphasis added).However, the products liability exception of thePLCAA only preempts actions “where thedischarge of the product was caused by avolitional act that
constituted a criminal offense
,”without mentioning the term “unlawful misuse.”15 U.S.C. § 7903(5)(iv) (emphasis added).Plaintiff argues due to this difference “theexclusionary phrase of the products liabilityexception only bar[s] cases involving “criminal”discharges, while allowing cases involving“unlawful” but not “criminal” discharges.” (Doc.21 at 6.) Plaintiff argues that under Arizona law,an accidental shooting by a fourteen-year-oldwould be handled by the juvenile justice system.As such, while the shooter might be founddelinquent, she would not face an actual criminalconviction. (Doc. 21 at 7 (citingA.R.S. § 8-207(A)). Due to this, Plaintiff asserts, the shootingof the Plaintiff was not a “criminal” offense andthe product liability exception allows the suit.However, the Court disagrees.
3
3
Though not referenced by the Plaintiff, thePLCAA actually defines the term“unlawful misuse” to mean “conduct thatviolates a statute, ordinance, or regulationas it relates to the use of a qualified product.”15 U.S.C. § 7903(9). ——–
In the present case, the Court finds that theShooter’s actions consisted of a criminal offensefor the purposes of the PLCAA. As Defendantnotes, the actions of the Shooter violated multiplecriminal statutes including the federal law against possession of a handgun by a juvenile,18 U.S.C. §922(x)(2)(A), Arizona’s laws against possession of
a handgun an unemancipated juvenile,A.R.S. §13-3111(A), reckless endangerment of another person,A.R.S. § 13-1201(A), and assault andaggravated assault by recklessly causing physicalinjury,A.R.S. §§ 13-1203(A)(1), 13-1204(A)(1) &(2). (Doc. 19 at 6.) While Plaintiff argues theShooter’s status as a juvenile means she cannot beconvicted of a criminal offense, this is bothfactually incorrect and not controlling theapplicability of
*18
the PLCAA.
18
Despite Plaintiff’s assertion to the contrary, under Arizona law the Shooter can be charged with acriminal offense.A.R.S. § 13-501(B)(4) (allowingfourteen-year -old defendants to be tried as adultswhen “accused of… [a] class 3, 4, 5 or 6 felonyinvolving a dangerous offense.”);A.R.S. § 13-105(13) (defining dangerous offense as “anoffense involving the discharge, use or threateningexhibition of a deadly weapon”). While thedecision whether to charge the Shooter as an adultis discretionary, the Court cannot believe that thePLCAA’s preemption hinges on whether the stateactually exercises this discretion of how to chargea shooter. To hinge the effect of the PLCAA on astate’s discretionary choice would be contrary toCongress’s purpose. The applicability of an actintended to preempt and prevent state actionwould be rendered entirely dependent on anindividual state officer’s charging decision. For similar reasons, the Court believes the PLCAA’s preemption of product defect cases is triggered bythe criminal nature of the volitional act, not onwhether the individual person is actually charged by the state.Further, the PLCAA’s product liability preemptionis triggered by the criminal nature of the act, notwhether the actor is or can be charged with thecrime.
Compare
15 U.S.C. §§ 7903(v)
with
7903(i). Here, even if a juvenile shooter would notface a criminal conviction, the finding of delinquency would be based on an admittedlycriminal act.
See
A.R.S. § 8-201(12);
JV-502820v
.
Superior Court
,181 Ariz. 243, 245 (Ariz. Ct.App. 1995). As such, the Court is convinced thatregardless of whether the Shooter would facecriminal charges, the criminal nature of the acttriggers the PLCAA’s preemption. This accordswith the result reached in other courts examiningthe application of the PLCAA to juvenile offenses.
See Adames v
.
Sheahan
,233 Ill. 2d 276, 309-14(2009).The canon of meaningful variation does notrequire a different result. The PLCAA defines theterm “unlawful misuse” to mean “conduct thatviolates a statute, ordinance, or regulation as itrelates to the use of a qualified product.”15U.S.C. § 7903(9) (emphasis added). Thisdefinition covers much more than conductconstituting a “criminal offense,” as there aremany acts which violate statutes and ordinances but do not trigger criminal
*19
penalties.
See
,
e
.
g
.,
United States v
.
Palmer
, No. CR 09-00536 MMM,2012 U.S. Dist. LEXIS 200428, at *13 (C.D. Cal.July 30, 2012) (citing
Mossew v
.
United States
,266 F. 18, 22 (2d Cir. 1920) (“By failure to provide a penalty for an infraction…the statutedoes not denounce the unlawful act as criminal.”)).So, the term of “unlawful misuse” in15 U.S.C. §7903(5)(A) extended the PLCAA’s preemption notonly to cases where a third party’s act could be acriminal offense, but also to situations where theact “violate[d] a statute, ordinance, or regulation”that relates to the use of a firearm, but carries nocriminal penalties.15 U.S.C. § 7903(9).Alternatively, the products liability exceptionlimits its preemption only to situations where theact is one which consists of a criminal offense.15U.S.C. § 7903(5)(A)(iv). This distinctionadequately explains the difference in the statue’slanguage without resort to a convoluted distinction based on the nature of criminal charges rather thanthe nature of the criminal act.
19
4. Defining “Volitional Act”
Plaintiff next argues his shooting was not theresult of a “volitional act,” because the Shooter didnot intend to fire the gun at the Plaintiff. Plaintiff argues that “volitional” is an undefined term in the
PLCAA, but that the Court should construevolitional to mean intentional, because Arizonacourt’s use the terms “volitional” and “intentional”interchangeably. However, the Court findsPlaintiff’s argument unavailing.First, while the term “volitional” often requiresmore than mere negligence, an act need not be“intentional” to be “volitional.”
See
,
e
.
g
.,
United States v
.
Trinidad-Aquino
,259 F.3d 1140, 1146(9th Cir. 2001) (construing crimes of violenceunder18 U.S.C. § 16 as “not…requiring specificintent, but rather merely
a volitional act equivalent to recklessness
.” (emphasis added)). Thus, themere fact the Shooter did not
intentionally
shootthe Plaintiff or fire the gun does not mean she didnot act
volitionally
. Second, even if the Shooter did not intentionally fire the gun, a third party isnot required to intentionally discharge a gun before the PLCAA will apply. The preemption istriggered if the injury is caused by “a volitional actthat constituted a criminal offense.”15 U.S.C. §7903(5)(A)(v). Apart from firing the gun, theShooter certainly took other volition acts that werecriminal
*20
offenses, such as intentionally taking possession of the gun and pulling the trigger whilein a vehicle with the gun pointed at another person.
See
18 U.S.C. § 922(x)(2)(A);A.R.S. §13-3111(A);A.R.S. § 13-1201(A). Under thePLCAA’s terms, these actions alone are sufficientto trigger preemption of Plaintiff’s product liabilityclaims. As such, it is clear to the Court that by her possession and behavior while in possession of thehandgun, the Shooter took multiple volitionalactions that constituted criminal offenses.
20
Having construed the PLCAA’s general preemption provision and the PLCAA’s productliability exception, the Court finds the PLCAAdoes bar Plaintiff’s claims against the Defendantwhere, as here, the shooting is caused by criminal possession and recklessness of a third party. Thus,if the PLCAA is constitutional, Plaintiff’s claimsmust be dismissed.
D. The Constitutionality of the PLCAA
Plaintiff argues that if the PLCAA bars his claimsthen the act itself is unconstitutional. Specifically,Plaintiff argues the act violates his rights to due process and equal protection under the FifthAmendment. (Doc. 21 at 15-17); U.S. Const.amend. V. Plaintiff also argues that the statuteviolates the Tenth Amendment to the UnitedStates Constitution by infringing on the states’lawmaking authority and attempting to dictatewhat branch of government is used to developstate law. (
Id
. at 13-14); U.S. Const. amend. X.The Ninth Circuit has previously considered theconstitutionality of the PLCAA.
Ileto
,565 F.3d at1140-44. To the extent the
Ileto
opinion addressesor applies to Plaintiff’s claims, the Court is bound by that ruling.
Hart v
.
Massanari
,266 F.3d 1155,1170-71 (9th Cir. 2001). “This includes not onlythe rule announced, but also the facts giving rise tothe dispute, other rules considered and rejected,and the views expressed in response to any dissentor concurrence.”
Id
.
1. Plaintiff’s Fifth Amendment Challenge
The Court is bound to rule against Plaintiff’s FifthAmendment claims because binding Ninth Circuit precedent forecloses his challenge. Plaintiff bringstwo challenges under the Fifth Amendment, one based on due process and one based on equal protection.
*21
(Doc. 21 at 15-17.)
21
Plaintiff’s due process claim alleges that “thePLCAA violates the Due Process Clause of theFifth Amendment because it eliminates anyremedy for victims of gun industry negligence likeCarlos.” (
Id
. at 15.) However, the Ninth Circuithas held that the “the PLCAA d[oes] notviolate…procedural due process…[and] does notcompletely abolish Plaintiffs’ ability to seek redress,”
Ileto
,565 F.3d at 1142, and the Court is bound by this ruling. Further, even were the Courtnot so bound, Plaintiff’s claim is plainly factuallyincorrect. Plaintiff may still pursue remediesagainst the owner of the gun and the actual shooter who caused him harm; he simply has elected notto.
Plaintiff’s equal protection claim is similarlyunavailing. Plaintiff argues the PLCAA violatesthe Equal Protection Clause “by creating a systemin which victims of gun industry negligence mayrecover damages in states with legislationcodifying liability standards, but not in statesrelying on common law.” (Doc. 21 at 17.) Plaintiff seems to concede that rational basis scrutinyapplies to this challenge, but argues the PLCAAnonetheless can’t pass rational basis scrutiny. (
Id
.)Plaintiff’s argument is both factually incorrect, and barred by Ninth Circuit precedent. The argumentis factually incorrect because the PLCAA barsliability for common law theories of liability evenwhen those standards have been codified.
See Ileto
,565 F.3d at 1137 (“the PLCAA preempt[s]…theories of liability even in jurisdictions…that have codified such causes of action.”). Regardless, Plaintiff’s argument is barred by precedent because the Ninth Circuit has previously held that the PLCAA passes rational basis review.
Id
. at 1140 (“There is nothingirrational or arbitrary about Congress’ choicehere[.]”).In light of the above, the Court finds that thePLCAA is not unconstitutional under the FifthAmendment’s due process or equal protectionrequirements.
2. Plaintiff’s Tenth Amendment Challenge
Plaintiff also argues that the PLCAA violates theTenth Amendment because “because it purports to bar certain common law claims against guncompanies, while allowing identical claims thatinvolve a statutory violation.” (Doc. 21 at 13.)Plaintiff
*22
alleges the Act is an “attempt bycongress [
sic
] to dictate how a state will make itslaw…[by] dictat[ing] which branch of governmentmust be used to make liability law applicable tothe firearms industry.” (
Id
.) According to Plaintiff “[t]his scheme violates principles of federalismenshrined in the Tenth Amendment [because]Congress has no authority to …deprive a state of its right to choose which branch of government touse to make law[.]” (
Id
. at 14.) However, theCourt finds Plaintiff’s argument unpersuasive because the PLCAA was passed pursuant toCongress’s enumerated power to regulate interstatecommerce.
22
The PLCAA does not violate the TenthAmendment because it is a constitutional exerciseof Congress’s specifically enumerated power toregulate interstate commerce, and Plaintiff has notshown the act commandeers state officials. TheTenth Amendment provides that “[t]he powers notdelegated to the United States by the Constitution,nor prohibited by it to the States, are reserved tothe States respectively, or to the people.” U.S.Const. amend. X. However, when Congress passesa law pursuant to the enumerated powersdelegated to it under the Constitution, the onlyapplicable limitation of the Tenth Amendment isits anti-commandeering doctrine.
City of New York v
.
Beretta U
.
S
.
A
.
Corp
.,524 F.3d 384, 396-97 (2dCir. 2008) (citing
Printz v
.
United States
,521 U.S.898, 933 (1997);
New York v
.
United States
,505U.S. 144, 161-66 (1992));
see also City of Spokane v
.
Fannie Mae
,775 F.3d 1113, 1118 (9thCir. 2014) (finding the supremacy clause allowsCongress to lawfully abridge a state’s powerswhen “properly exercise[ing] its enumerated powers” as long as it does not commandeer stateofficials). Here, the Ninth Circuit has previouslyheld that the PLCAA is a carefully constrainedexercise of Congress’s enumerated power toregulate interstate commerce.
Ileto
,565 F.3d at1140. So, as long as the PLCAA does not runafoul of the anti-commandeering doctrine,Plaintiff’s Tenth Amendment challenge must fail.Plaintiff never even expressly argues that thePLCAA violates the anti-commandeeringdoctrine. Instead, he simple states in a singlesentence that the PLCAA is not permissible preemption “since ‘every form of [permissible] preemption is based on a
*23
federal law thatregulates the conduct of private actors, not theStates.'” (Doc. 21 at 14 (citing
Murphy v
.
NCAA
,138 S. Ct. 1461, 1481 (2018)). However, the Court
does not agree. As Plaintiff’s own cited caseexplains: “[e]xpress preemption…is often obscured by the language used by Congress in framing preemption provisions.”
Murphy
,138 S. Ct. at1480. And Courts must “look beyond the phrasingemployed” to examine if the act is permissible preemption rather than commandeering.
Id
. For example, in the
Murphy
case the Court found theAirline Deregulation Act of 1978 was properlyconstrued as a preemption statute even though its phrasing seemed to regulate the conduct of statesrather than private actors.
Id
. The
Murphy
Courtnoted that regardless of the statute’s framing of language, the provision operated like all other federal preemption laws “confer[ing] on privateentities (i.e., covered carriers) a federal right toengage in certain conduct subject only to certain(federal) constraints.”
Id
. The same rationalapplies to the PLCAA which “confers on privateentities [(i.e., manufacturers)] a federal right toengage in certain conduct [(the sale of qualified products)] subject only to certain (federal)constraints.”
Murphy
,138 S. Ct. at 1480.Plaintiff argues that even where Congress isclearly acting pursuant to its expressly delegatedauthority, the Tenth Amendment preventsCongress from “infringing on state lawmakingauthority, or [depriving] a state of its right tochoose which branch of government to use tomake law.” (Doc. 21 at 14.) However, the legalsupport for Plaintiff’s argument is unpersuasive.Plaintiff quotes
Erie Railroad v
.
Tompkins
to arguethat “whether the law of the State shall be declared by its Legislature in a statute or by its highestcourt in a decision is not a matter of federalconcern.”304 U.S. 64, 78 (1938). But to hold thisquote forward as an inhibition on Congress’sability to regulate state law pursuant to itsenumerated powers is an exercise in selectivequotation. The very next paragraph of
Erie
quotesand adopts Justice Field’s dissent in
Baltimore &Ohio R
.
Co
.
v
.
Baugh
, clarifying that “[s]upervision over either the legislative or the judicial action of the States is in no case permissible
except as to matters by theConstitution specially authorized or delegated tothe United States
.”
Erie R
.
R
.,304 U.S. at 79(quoting
Baugh
, 49 U.S. 368,
*24
401 (1893));
seealso
,
Alden v
.
Me
.,527 U.S. 706, 754 (1999);
Garcia v
.
San Antonio Metro
.
Transit Auth
.,469U.S. 528, 549 (1985);
Schneckloth v
.
Bustamonte
,412 U.S. 218, 263 (1973). Here Congress hasacted pursuant to its authority, delegated to it bythe Constitution, to regulate interstate commerce.As such, Plaintiff’s reference to
Erie
is notgrounds to find the act unconstitutional.
24
Plaintiff also argues the PLCAA violates the TenthAmendment under
Matter of Vargas
, a New York State case finding a federal law could not simplyorder which branch of the state will exercise itssovereign powers. 131 A.D.3d 4 (2015). However,the
Vargas
case is easily distinguishable. First, theCourt notes that
Vargas
rests on dubious groundswhen weighed against the numerous SupremeCourt cases referenced establishing Congress’s power to supervise state action on mattersspecifically within its delegated powers.
Supra
at22. Second, the case is not binding authority, andhas had minimal impact outside of the specificcontext of undocumented aliens being admitted tothe New York bar.
Matter of Vargas
, 131 A.D.3d 4(2015). Third, unlike the statute at issue in
Vargas
,the PLCAA does not simply allow states to “optout” and allow tort claims as long as thelegislature creates them. (Doc. 21 at 14.) Whilethe statute’s restrictions in
Vargas
becameinoperative as soon the legislature acted, thePLCAA preempts tort actions regardless of what branch creates them. It does not matter if they aredeveloped by the courts or codified by thelegislature.
See Ileto
,565 F.3d at 1136.For the above reasons, the Court finds the PLCAAis a constitutional exercise of Congress’senumerated power to regulate interstatecommerce. The statute is constitutional and suffersno defect under either the Fifth or TenthAmendment to the United States Constitution. ////// /// /// ///
*25
V. Conclusion
Accordingly,
IT IS ORDERED
that Defendant Glock Incorporated’s Motion to Dismiss for Failure toState a Claim and pursuant to the Protection of Lawful Commerce in Arms Act (Doc. 19) is
GRANTED.
Dated this 10th day of March, 2021./s/_________Honorable Susan M. BrnovichUnited States District Judge
So, the day after Christmas 2020, I filled out the application, paid the $55 course fee, and passed the online handgun safety course required for the license. I knew that skyrocketing demand meant I was in for a much longer wait time than normal, and so I chuckled slightly and just sort of accepted it when the system told me my appointment to get my license would be in April 2021.
In the interim, my family and I had decided to move to Florida after the current school year ends. We became occupied with house-hunting, packing, selling a second property, and arranging contractors to make repairs to get our main home on the market. A whole series of columns will follow detailing why we decided to bail on Oregon, but suffice it to say that the kids needed real school, our entire family needed relief from pandemic fascism, and we have grown weary of big-city life.
This will become important in a moment.
Again, I had no real sense of urgency, and I’ve gone this long without my concealed handgun license, so I didn’t sweat the wait too much. It did make me wonder, though, what if you’re in a higher-crime neighborhood watching the crime rate skyrocket throughout Portland, as response times increase in direct proportion to how much city council has defunded the police? What if you’re in an abusive relationship, need a restraining order, and know that the police can’t protect you? What if you are worried about exploding gang violence? Any number of scenarios could give a Portland resident pause to consider carrying a handgun.
Anyway, my appointment rolled around on April 21 at 11 a.m. I showed up at the Penumbra Kelly Building, home of the Multnomah County Sheriff’s Office (MCSO), a few minutes early. Even though I’ve lived through nightly riots in Portland, I was still taken aback at the appearance of the building. Plywood covering EVERYTHING. I walked in, and the lobby was completely unlit. I looked up and saw plywood covering all the windows.
It looked like the working definition of dystopia.
I took their COVID-19 quiz and had my temperature taken. After a few minutes, the two ladies who process the paperwork arrived. Since I had arrived first, I was up. I walked into the little room to get my picture taken, get fingerprinted, etc.
We made small talk: “Boy, you guys are backed up, huh?”
“Yeah,” one of them replied, “it’s been pretty busy.”
“Seems like a nice place to work, at least, with all the plywood …” That engendered a snicker from both.
Related: Gun Sales in U.S. Set New Records in January, Fresh Off Huge Sales In 2020
The one lady finished taking my digital fingerprints, and the other took my $65 license fee. I was now into this thing for $120, the cost of the exam and the fee for the license. Next up, they took my picture for my concealed handgun license.
I got my receipt, my ID, and my certificate of course completion back. What the clerk said next caused me to double-take, as if I hadn’t heard her correctly.
“Ok now, this is not a license.”
“I—I’m sorry?”
“This is not a license. You won’t be receiving your license today.”
This, as you may imagine, was news to me.
“Yeah,” she said to me, “we still have to run the background check, and process your paperwork.”
I blinked back at her, disbelievingly.
“It could be up to 90 days.”
Now, mind you, I’ve legally purchased an undetermined amount of firearms in the not-so-distant past (all of which, I must reiterate, I tragically lost in a boating accident). When things got super busy, around Christmas time, my background check took up to an hour or two.
The MCSO told me that the entire process, from application, to safety certification, to license issue, will stretch from December 2020 to around July. Eight months.
Good thing Portland hasn’t given anyone a reason to need a concealed handgun over the past year and a half.
Remember, I had decided in the interim to pack my family up and move to Florida. This will happen sometime in June. Here’s the ironic thing. It’s almost certain that my new Oregon concealed handgun license will need to be forwarded to my new address out of state if and when it is finally issued. It’s also entirely possible that I will get my Florida license well before my Oregon license arrives.
A few things have run through my head about this whole ordeal. One: I know this is liberal deep-blue Portland. The clerks in the office reported, however, that they’ve seen unprecedented demand. The number of customers in the lobby confirm this, and the clerks also tell me they have appointments all day, every day. There must be thousands of Multnomah County residents applying for concealed handgun licenses, for myriad obvious reasons.
Two, and much more sinister: the conspiracy part of my brain can’t believe the Multnomah County Sheriff hasn’t used the pandemic and the nightly riots and the exploding demand as excuses to slow-walk CHL applications. That’s just how the politics of this county work.
A variety of forces have converged to make acquiring your concealed handgun license in Portland as onerous as possible. Just another in the pile of reasons to move out of Multnomah County and migrate to somewhere that doesn’t make it so difficult.
Sen. John Cornyn (R-TX) introduced national reciprocity legislation for concealed carry in the Senate on Thursday.
The NRA-backed bill would treat concealed carry licenses like driver’s licenses, ensuring permit holders could drive state-to-state and have their concealed permit recognized as valid.
BREAKING NEWS: NRA-Backed National Concealed Carry Reciprocity introduced in the U.S. Senate by Sen. @JohnCornyn (R-TX).
Cornyn released a statement coinciding with the introduction of the legislation, saying, “This bill focuses on two of our country’s most fundamental constitutional protections — the Second Amendment’s right of citizens to keep and bear arms and the Tenth Amendment’s right of states to make laws best-suited for their residents. I look forward to working with my colleagues to advance this important legislation for law-abiding gun owners nationwide.”
Breitbart News noted Rep. Richard Hudson (R-NC) introduced national reciprocity legislation in the House on January 4, 2021.
Hudson’s legislation, the Concealed Carry Reciprocity Act (HR38), treats concealed carry licenses like driver’s licenses as well, recognizing the license from one state as valid in the other 49.
Hudson released a statement upon introducing HR38:
Our Second Amendment rights do not disappear when we cross state lines, and H.R. 38 guarantees that. The Concealed Carry Reciprocity Act of 2021 is a common sense solution to provide law-abiding citizens the right to conceal carry and travel freely between states without worrying about conflicting state codes or onerous civil suits.
“I am especially proud to have such widespread and bipartisan support for this measure and will work with my colleagues to get this legislation over the finish line,” he concluded.
AWR Hawkins is an award-winning Second Amendment columnist for Breitbart News and the writer/curator of Down Range with AWR Hawkins, a weekly newsletter focused on all things Second Amendment. He is the political analyst for Armed American Radio. Follow him on Twitter: @AWRHawkins. Reach him directly at awrhawkins@breitbart.com. Sign up to get Down Range at breitbart.com/downrange.
