Breaking News

Tracking new cases: Suing gun makers

NOTE: From time to time, the blog will examine significant new cases as they are filed at the Supreme Court.  This post is one in that series.  Some of these cases very likely will appear later in the blog’s Petitions to Watch feature when the Court is ready to consider them.


Seeking to revive a lawsuit against a gun manufacturer over a teenager’s accidental but fatal shooting of a friend, lawyers for the Illinois parents of the dead boy have asked the Supreme Court to strike down a four-year-old federal law that shields the industry from many — but not all — lawsuits.  The petition in Adames, et al. v. Beretta USA Corp., filed last Monday and docketed as 09-253, can be downloaded here.  That file includes the appendix.  For a link only to the Illinois Supreme Court decison rejecting the constitutional challenge, click here.

The 2005 law – titled the Protection of Lawful Commerce in Arms Act — was controversial when passed, and has been attacked repeatedly since then in court.  The challengers have argued variously that Congress either had no power to wipe out already-filed lawsuits against gun makers, or that it went too far in doing so. So far, the Supreme Court has not been willing to get into the controversy, and the first issue facing the new lawsuit is whether it is sufficiently different that it can not only draw the Justices’ interest, but also overcome likely resistance from the federal government.

Last March 19, the Court denied review in two cases challenging the Act — New York City, et al. v. Beretta (08-530) and Lawson, et al. v. Beretta (08-545).  The federal government joined in both of those cases to defend the law, and successfully urged the Court not to hear either one, arguing that neither one raised clearly the issues it sought to put forward.  In the new case, the Justice Department was not involved as it went through Illinois courts, but because a federal law could be at stake, it could do so in the Court.

The narrower issue in the Illinois case is whether the specific lawsuit by the dead boy’s parents fits within an exception in the 2005 law that permits some cases to go ahead.  The broader issue is whether Congress has intruded too deeply into the way states craft their own laws, barring those that test issues arising under state common law, allowing at least some that test a state statute.  The petition quotes at length from congressional floor debates, with lawmakers blasting juries and judges for fashioning “novel” ways to attack the gun industry while showing respect for laws that emerge from state legislatures.

The tragedy that led to the Adames lawsuit in Illinois occurred eight years ago, when 13-year-old Billy Swan aimed and fired a Beretta pistol at a friend who had come over to play, Joshua Adames, who also was 13. The gun belonged to Billy’s dad, a Cook County sheriff’s deputy. Billy had taken out the gun’s clip before aiming it, believing that would make it harmless. A bullet that had remained in the gun’s chamber killed Joshua.

Billy’s parents sued Beretta, among others, contending that the gun manufacturer failed to warn users of this kind of pistol that removal of the magazine did not make it safe.  Without a cheap device to prevent just such accidents, and without a specific warning about the hazard, the pistol was too dangerous, the lawsuit contended. (There were other claims, but that one is the center of the case now.)

While a lower state court allowed that claim to proceed, the Illinois Supreme Court blocked the lawsuit altogether.  It ruled that, because Billy had intentionally aimed the gun and pulled the trigger, the incident did not come within the exception Congress had made to the lawsuit ban.  But it also went further, and found that the law did not run afoul of the Constitution’s Tenth Amendment, and its protection of state laws, because it did not “commandeer” state officials or processes to carry out some federal order or duty.

Taken to the Supreme Court by some of the same lawyers who pursued one of the earlier challenges, the Adames petition puts its primary stress on the Tenth Amendment issue. That Amendment, leaving states free to create their own laws when the powers have not been assigned to Congress, bars Congress from dictating to states “which branch of state government may authorize  liability against a particular industry so long as the federal enactment does not ‘commandeer’ state officials,” the petition argues.

The Illinois court, like the Second Circuit Court (in one of last Term’s cases), deferred to Congress “when it determined which branch of state government it would recognize as the authoritative expositor of state law, as well as limiting the scope of the Tenth Amendment to its anti-commandeering principle,” the filing contends.  That “cannot be reconciled with our system of federalism,” it says.

On what kinds of lawsuits are affected by the 2005 law, the petition argues that the reach of that law “is an issue of pressing national importance that courts nationwide are continually struggling with and which requires this Court’s definitive construction.”

The Beretta company’s response to the appeal is now due by Sept. 28, unless the time to file is extended.