Ileto v. Glock, Inc. ( 2009 )

Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LILIAN S. ILETO, an individual and 
mother to Joseph S. Ileto,
deceased; JOSHUA STEPAKOFF, a
minor, by his parents Loren Lieb
and Alan B. Stepakoff; MINDY
GALE FINKELSTEIN, a minor, by her
parents David and Donna
Finkelstein; BENJAMIN KADISH, a
minor, by his parents Eleanor and
Charles Kadish; and NATHAN
LAWRENCE POWERS, a minor, by his No. 06-56872
parents Gail and John Michael  D.C. No.
Powers, for himself and on behalf CV-01-09762-ABC
of a class of persons similarly
situated,
Plaintiffs-Appellants,
v.
GLOCK, INC., a Georgia
corporation; RSR MANAGEMENT
CORPORATION; and RSR WHOLESALE
GUNS SEATTLE INC.,
Defendants-Appellees,

5543
5544 ILETO v. GLOCK
MAADI, an Egyptian business 
entity; QUALITY PARTS CO.,
formerly doing business as
Bushmaster Firearms, a Maine
corporation; IMBEL, a Brazilian
business entity; THE LOANDER
PAWNSHOP TOO, a Washington
corporation; DAVID MCGEE, an
individual; INTRAC ARMS
INTERNATIONAL, INC., a Tennessee
Corporation, formerly doing 
business as Intrac corporation also
known as Doe 1, and CHINA
NORTH INDUSTRIES CORP., aka
Norinco,
Defendants,
and
UNITED STATES OF AMERICA,
Defendant-Intervenor-Appellee.

ILETO v. GLOCK 5545
LILIAN S. ILETO, an individual and 
mother to Joseph S. Ileto,
deceased; JOSHUA STEPAKOFF, a
minor, by his parents Loren Lieb
and Alan B. Stepakoff; MINDY
GALE FINKELSTEIN, a minor, by her
parents David and Donna
Finkelstein; BENJAMIN KADISH, a
minor, by his parents Eleanor and
Charles Kadish; and NATHAN No. 07-15403
LAWRENCE POWERS, a minor, by his  D.C. No.
parents Gail and John Michael CV-01-09762-ABC
Powers, for himself and on behalf
of a class of persons similarly
situated,
Plaintiffs-Appellants,
v.
CHINA NORTH INDUSTRIES CORP.,
aka Norinco,
Defendant-Appellee,

5546 ILETO v. GLOCK
and 
UNITED STATES OF AMERICA,
Defendant-Intervenor-Appellee,
and
RSR MANAGEMENT CORPORATION;
RSR GROUP NEVADA, INC.,
formerly doing business as RSR
Wholesale Guns Seattle Inc.;
MAADI, an Egyptian business
entity; QUALITY PARTS CO.,
formerly doing business as
Bushmaster Firearms, a Maine 
corporation; IMBEL, a Brazilian
business entity; THE LOANDER
PAWNSHOP TOO, a Washington
corporation; DAVID MCGEE, an
individual; INTRAC ARMS
INTERNATIONAL, INC., a Tennessee
Corporation, formerly doing
business as Intrac Corporation also
known as Doe 1; GLOCK, INC., a
Georgia corporation,
Defendants.

ILETO v. GLOCK 5547
LILIAN S. ILETO, an individual and 
mother to Joseph S. Ileto,
deceased; JOSHUA STEPAKOFF, a
minor, by his parents Loren Lieb
and Alan B. Stepakoff; MINDY
GALE FINKELSTEIN, a minor, by her
parents David and Donna
Finkelstein; BENJAMIN KADISH, a
minor, by his parents Eleanor and
Charles Kadish; and NATHAN No. 07-15404
LAWRENCE POWERS, a minor, by his
parents Gail and John Michael  D.C. No.
CV-01-09762-ABC
Powers, for himself and on behalf OPINION
of a class of persons similarly
situated,
Plaintiffs-Appellees,
v.
CHINA NORTH INDUSTRIES CORP.,
aka Norinco,
Defendant-Appellant,
and

5548 ILETO v. GLOCK
RSR MANAGEMENT CORPORATION; 
RSR GROUP NEVADA, INC.,
formerly doing business as RSR
Wholesale Guns Seattle Inc.;
MAADI, an Egyptian business
entity; QUALITY PARTS CO.,
formerly doing business as
Bushmaster Firearms, a Maine
corporation; IMBEL, a Brazilian
business entity; THE LOANDER 
PAWNSHOP TOO, a Washington
corporation; DAVID MCGEE, an
individual; INTRAC ARMS
INTERNATIONAL, INC., a Tennessee
Corporation, formerly doing
business as Intrac Corporation also
known as Doe 1; GLOCK, INC., a
Georgia corporation,
Defendants.

Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
Argued and Submitted
August 5, 2008—Pasadena, California
Filed May 11, 2009
Before: Stephen Reinhardt, Susan P. Graber, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Graber;
Partial Concurrence and Partial Dissent by Judge Berzon
5552 ILETO v. GLOCK
COUNSEL
Peter Nordberg, Berger & Montague, P.C., Philadelphia,
Pennsylvania; and Sayre Weaver, The Educational Fund to
Stop Gun Violence, La Habra, California, for the plaintiffs-
appellants.
Charles H. Dick, Jr., and Shannon D. Sweeney, Baker &
McKenzie LLP, for defendant-appellant/appellee China
North.
Christopher Renzulli, Renzulli Law Firm, LLP, White Plains,
New York, for defendants-appellees Glock & RSR.
H. Thomas Byron, III, Appellate Staff Civil Division, Depart-
ment of Justice, Washington, D.C., for the defendant-
intervenor-appellee.
ILETO v. GLOCK 5553
Beth S. Brinkman, Morrison & Foerster LLP, Washington,
D.C., for amicus curiae.
OPINION
GRABER, Circuit Judge:
By enacting the Protection of Lawful Commerce in Arms
Act (“PLCAA” or “Act”), 15 U.S.C. §§ 7901-7903, Pub. L.
No. 109-92, 119 Stat. 2095 (2005), Congress has protected
federally licensed manufacturers and sellers of firearms from
most civil liability for injuries independently and intentionally
inflicted by criminals who use their non-defective products.
Under the terms of the PLCAA, the claims brought here, by
the victims of a criminal who shot them, against a federally
licensed manufacturer and a federally licensed seller of fire-
arms must be dismissed. But the claims brought against an
unlicensed foreign manufacturer of firearms may proceed. We
therefore affirm.
FACTUAL AND PROCEDURAL HISTORY
On August 10, 1999, Bufford Furrow shot and injured three
young children, one teenager, and one adult at a Jewish Com-
munity Center summer camp in Granada Hills, California.
Later that day, he shot and killed Joseph Ileto, a postal
worker. Furrow was carrying at least seven firearms, which he
possessed illegally.
In 2001, the shooting victims and Ileto’s surviving wife
filed this action against the manufacturers, marketers, import-
ers, distributers, and sellers of the firearms. They alleged that
Defendants intentionally produce, market, distribute, and sell
more firearms than the legitimate market demands in order to
take advantage of re-sales to distributors that they know or
should know will, in turn, sell to illegal buyers. They also
5554 ILETO v. GLOCK
alleged that Defendants’ deliberate and reckless marketing
and distribution strategies create an undue risk that their fire-
arms would be obtained by illegal purchasers for criminal pur-
poses.1 They did not, however, allege that Defendants violated
any statute prohibiting manufacturers or sellers from aiding,
abetting, or conspiring with another person to sell or other-
wise dispose of firearms to illegal buyers. Instead, Plaintiffs
brought their claims against Defendants solely under Califor-
nia common law tort statutes for foreseeably and proximately
causing injury, emotional distress, and death through know-
ing, intentional, reckless, and negligent conduct.
In 2002, the district court dismissed the case for failure to
state a claim under California law. Ileto v. Glock, Inc., 194 F.
Supp. 2d 1040 (C.D. Cal. 2002). We affirmed in part and
reversed in part. Ileto v. Glock, Inc., 349 F.3d 1191 (9th Cir.
2003) (“Ileto I”). We held that Plaintiffs stated cognizable
negligence and public nuisance claims under California law
with respect to the firearms actually used in the shootings. Id.
at 1203-15. We therefore reversed the dismissal of the action
against Defendants RSR Management Corp. and RSR Whole-
sale Guns Seattle Inc. (collectively “RSR”), Glock Inc., and
China North Industries Corp. (“China North”), because Plain-
tiffs alleged that Furrow may have used the firearms manufac-
tured and distributed by those Defendants. Id. at 1215-16. We
affirmed the dismissal of the action against all other Defen-
dants, however, because the allegations did not support a con-
clusion that Furrow fired the firearms associated with those
Defendants. Id. at 1216.
That holding resulted in disagreement within our court.
The majority of our colleagues declined, however, to take the
case en banc. Ileto v. Glock Inc., 370 F.3d 860 (9th Cir. 2004)
1
Although Plaintiffs alleged knowing conduct by Defendants, the under-
lying factual basis for the claims is, of course, Furrow’s criminal acts. Had
the tragic shootings not occurred, there would be neither damages, nor
cognizable claims, nor standing by Plaintiffs to bring these claims.
ILETO v. GLOCK 5555
(order denying rehearing). As noted in our opinion our hold-
ing was not an outlier: Other jurisdictions had upheld similar
claims against manufacturers and distributors of firearms
under other state laws. Ileto I, 349 F.3d at 1200 n.10, 1206-
07, 1214 & n.30 (citing Hamilton v. Beretta U.S.A. Corp., 750
N.E.2d 1055, 1061 (N.Y. 2001); City of Cincinnati v. Beretta
U.S.A. Corp., 768 N.E.2d 1136, 1142 (Ohio 2002); City of
Chicago v. Beretta U.S.A. Corp., 785 N.E.2d 16, 24 (Ill. Ct.
App. 2002), rev’d, 821 N.E.2d 1099 (Ill. 2004)).
The dispute soon reached the floor of the United States
Congress and, in 2005, Congress enacted the PLCAA. The
PLCAA generally preempts claims against manufacturers and
sellers of firearms and ammunition resulting from the criminal
use of those products. The PLCAA affects future and pending
lawsuits, and courts are required to “immediately dismiss[ ]”
any pending lawsuits preempted by the PLCAA. 15 U.S.C.
§ 7902(b).
After enactment of the PLCAA, the district court halted
discovery and sought briefing on the effect of the Act on this
case. Plaintiffs argued that the PLCAA did not apply here
and, in the alternative, that the PLCAA is unconstitutional.
The district court permitted the United States to intervene,
pursuant to 28 U.S.C. § 2403(a), to defend the constitutional-
ity of the Act.
In a published opinion, the district court dismissed Plain-
tiffs’ claims against Defendants Glock and RSR. Ileto v.
Glock, Inc., 421 F. Supp. 2d 1274 (C.D. Cal. 2006). The court
held that the PLCAA preempted Plaintiffs’ claims against
those Defendants, id. at 1284-98, and upheld the constitution-
ality of the Act, id. at 1298-1304. The court eventually
entered a final judgment pursuant to Federal Rule of Civil
Procedure 54(b) as to Defendants Glock and RSR. Plaintiffs
timely appealed.
In an unpublished order, the district court denied Defendant
China North’s motion for summary judgment. The court held
5556 ILETO v. GLOCK
that the PLCAA did not preempt Plaintiffs’ claims against
China North because, by contrast to Glock and RSR, China
North is not a federal firearms licensee, as required by the
PLCAA. The district court then certified an interlocutory
appeal of that order.
We consolidated the appeals. In addition to the parties, the
United States appears before us as an intervenor in support of
the constitutionality of the PLCAA, and we accepted an
amicus curiae brief from the Legal Community Against Vio-
lence in support of Plaintiffs.
STANDARD OF REVIEW
All the questions presented here are questions of law that
we review de novo. See United States v. Lujan, 504 F.3d
1003, 1006 (9th Cir. 2007) (“[T]he constitutionality of a fed-
eral statute [is] a question of law that we review de novo.”);
J.&G. Sales Ltd. v. Truscott, 473 F.3d 1043, 1047 (9th Cir.)
(“We apply a de novo standard of review to . . . questions of
statutory interpretation.”), cert. denied, 128 S. Ct. 208 (2007);
Fajardo v. County of Los Angeles, 179 F.3d 698, 699 (9th Cir.
1999) (“This court reviews de novo Rule 12(c) judgments on
the pleadings.”).
DISCUSSION
A. Preemption of Claims Against Defendants Glock and
RSR
[1] The PLCAA requires that federal courts “immediately
dismiss[ ]” a “qualified civil liability action.” 15 U.S.C.
§ 7902(b).
The term “qualified civil liability action” means a
civil action or proceeding or an administrative pro-
ceeding brought by any person against a manufac-
turer or seller of a qualified product, or a trade
ILETO v. GLOCK 5557
association, for damages, punitive damages, injunc-
tive or declaratory relief, abatement, restitution,
fines, or penalties, or other relief, resulting from the
criminal or unlawful misuse of a qualified product
by the person or a third party, but shall not include
[specified enumerated exceptions.]
Id. § 7903(5)(A). We agree with the parties that this case
meets all the elements of that general definition as applied to
Defendants Glock and RSR. This case is a “civil action”
brought by a “person” for damages and other relief to redress
harm “resulting from the criminal . . . misuse of a qualified
product by . . . a third party.” Id. Additionally, Glock and
RSR are “manufacturer[s] or seller[s] of a qualified product,”
id., because they are, respectively, a federally licensed manu-
facturer and a federally licensed distributor of the firearms
allegedly used in the shootings, see id. § 7903(2) (defining
“manufacturer”); id. § 7903(6) (defining “seller”).
[2] The PLCAA therefore requires dismissal if none of the
specified exceptions applies. Plaintiffs argue that the third
exception, § 7903(5)(A)(iii), applies. Under that exception,
the PLCAA does not preempt
an action in which a manufacturer or seller of a
qualified product knowingly violated a State or Fed-
eral statute applicable to the sale or marketing of the
product, and the violation was a proximate cause of
the harm for which relief is sought, including—
(I) any case in which the manufacturer or seller
knowingly made any false entry in, or failed to make
appropriate entry in, any record required to be kept
under Federal or State law with respect to the quali-
fied product, or aided, abetted, or conspired with any
person in making any false or fictitious oral or writ-
ten statement with respect to any fact material to the
5558 ILETO v. GLOCK
lawfulness of the sale or other disposition of a quali-
fied product; or
(II) any case in which the manufacturer or seller
aided, abetted, or conspired with any other person to
sell or otherwise dispose of a qualified product,
knowing, or having reasonable cause to believe, that
the actual buyer of the qualified product was prohib-
ited from possessing or receiving a firearm or ammu-
nition under subsection (g) or (n) of section 922 of
Title 18[.]
Id. § 7903(5)(A)(iii) (emphasis added).
[3] This exception has come to be known as the “predicate
exception,” because a plaintiff not only must present a cogni-
zable claim, he or she also must allege a knowing violation of
a “predicate statute.” City of New York v. Beretta U.S.A.
Corp., 524 F.3d 384, 390 (2d Cir. 2008), cert. denied, 129
S. Ct. 1579 (2009); District of Columbia v. Beretta U.S.A.
Corp., 940 A.2d 163, 168 (D.C. 2008), cert. denied, 129
S. Ct. 1579 (2009); Smith & Wesson Corp. v. City of Gary,
875 N.E.2d 422, 429-30 (Ind. Ct. App. 2007). That is, a plain-
tiff must allege a knowing violation of “a State or Federal
statute applicable to the sale or marketing of the product.” 15
U.S.C. § 7903(5)(A)(iii). In City of New York, for instance,
the plaintiffs brought a common-law public nuisance claim
(the cause of action) and also alleged that the defendants
knowingly violated a state criminal statute (the predicate stat-
ute). 524 F.3d at 390.
Here, we previously ruled that Plaintiffs’ negligence and
public nuisance allegations state cognizable claims under Cal-
ifornia law.2 Ileto I, 349 F.3d at 1209, 1215. To meet the
2
We decline to revisit that holding. See Merritt v. Mackey, 932 F.2d
1317, 1320 (9th Cir. 1991) (“Under the ‘law of the case’ doctrine, one
panel of an appellate court will not as a general rule reconsider questions
ILETO v. GLOCK 5559
requirements of the predicate exception, Plaintiffs do not
point to an allegation of a knowing violation of any separate
statute. Instead, Plaintiffs point out that, unlike many jurisdic-
tions, California’s general tort law is codified in its civil code.
See Cal. Civ. Code § 1714(a) (negligence); id. § 3479 (nui-
sance); id. § 3480 (public nuisance). Plaintiffs argue that their
allegations of knowing violations of those statutes satisfy the
requirements of the predicate exception. In short, Plaintiffs
argue that California Civil Code sections 1714, 3479, and
3480 (“California tort laws”), provide both the cause of action
and the requisite predicate statute under the PLCAA. Defen-
dants counter that only a separate statute, regulating firearms
exclusively (or at least explicitly), can be a predicate statute.
The parties’ disagreement, then, is whether the California
tort laws are predicate statutes under the PLCAA. More spe-
cifically, the parties dispute whether the California tort stat-
utes are “applicable to the sale or marketing of [firearms3].”
15 U.S.C. § 7903(5)(A)(iii). When interpreting a statute, we
look first to its text. See Robinson v. Shell Oil Co., 519 U.S.
337, 340 (1997) (“Our first step in interpreting a statute is to
determine whether the language at issue has a plain and
unambiguous meaning with regard to the particular dispute in
the case.”); FMC Corp. v. Holliday, 498 U.S. 52, 57 (1990)
(“We begin with the language employed by Congress and the
assumption that the ordinary meaning of that language accu-
rately expresses the legislative purpose.” (internal quotation
marks omitted)). “If the statute’s terms are ambiguous, we
may use canons of construction, legislative history, and the
which another panel has decided on a prior appeal in the same case.”
(brackets and some internal quotation marks omitted)). Contrary to Defen-
dants’ assertion, the intervening case People v. Arcadia Mach. & Tool,
Inc. (In re Firearm Cases), 24 Cal. Rptr. 3d 659 (Ct. App. 2005), does not
conflict with our previous holding.
3
The statute covers both firearms and ammunition. Except as otherwise
specified, we will refer to “firearms” as a convenient shorthand for “fire-
arms and ammunition.”
5560 ILETO v. GLOCK
statute’s overall purpose to illuminate Congress’s intent.”
Jonah R. v. Carmona, 446 F.3d 1000, 1005 (9th Cir. 2006).
1. Text of the Predicate Exception
[4] “The plainness or ambiguity of statutory [text] is deter-
mined by reference to the [text] itself, the specific context in
which that [text] is used, and the broader context of the statute
as a whole.” Robinson, 519 U.S. at 341. Here, the statutory
text states that a predicate statute is “a State or Federal statute
applicable to the sale or marketing of [firearms].” 15 U.S.C.
§ 7903(5)(A)(iii). There is no dispute that the California tort
laws, which are codified in the California Civil Code, are state
statutes. The issue is whether those statutes are “applicable”
to the sale or marketing of firearms within the meaning of the
PLCAA.
As discussed below, Plaintiffs and Defendants present com-
peting definitions of the term “applicable.” Like most terms,
“applicable” does not have only one meaning when viewed in
isolation. Not surprisingly then, courts have struggled to
determine the meaning of “applicable” as used in a variety of
statutes. See, e.g., Medtronic, Inc. v. Lohr, 518 U.S. 470(1996) (statute governing medical devices); McGee v. Peake,
511 F.3d 1352 (Fed. Cir. 2008) (statute governing the United
States Court of Appeals for Veterans Claims); Peter Pan Bus
Lines, Inc. v. Fed. Motor Carrier Safety Admin., 471 F.3d
1350 (D.C. Cir. 2006) (statute governing the Federal Motor
Carrier Safety Administration).
One everyday meaning, and a dictionary definition, of the
term “applicable” is “capable of being applied.” Black’s Law
Dictionary 98 (6th ed. 1990). Plaintiffs urge us to conclude
that this expansive definition is the only possible meaning of
the term “applicable” in the PLCAA’s predicate exception.
Under that definition, Plaintiffs would prevail: Because we
held in Ileto I that Plaintiffs’ claims concerning the sale and
marketing of firearms are cognizable, the California tort laws
ILETO v. GLOCK 5561
are “[capable of being applied to] the sale or marketing of
[firearms].”
By contrast, Defendants argue that Congress intended a
very narrow use of the term “applicable,” which can mean
“relevant” or “applicable specifically.” Defendants argue that,
under that narrow meaning of the term, the requirements of
the predicate exception would be met only if a plaintiff
alleged a knowing violation of a statute that pertained exclu-
sively to the sale or marketing of firearms. The dictionary cap-
tures this narrower definition, see Black’s Law Dictionary at
98 (defining “applicable” as “relevant”), and so does every-
day usage.4
[5] We are convinced at the outset, then, that the term “ap-
plicable” has a spectrum of meanings, including the two poles
identified by the parties. To determine Congress’ intended
meaning in the PLCAA, we must examine “the specific con-
text in which [the term ‘applicable’] is used[ ] and the broader
context of the statute as a whole.” Robinson, 519 U.S. at 341.
Congress listed examples of predicate statutes in the
PLCAA:
(I) any case in which the manufacturer or seller
knowingly made any false entry in, or failed to make
appropriate entry in, any record required to be kept
under Federal or State law with respect to the quali-
fied product, or aided, abetted, or conspired with any
person in making any false or fictitious oral or writ-
4
For instance, if someone says, “the following rules are applicable to the
game of basketball,” one would expect to hear a list of rules concerning
traveling, foul shots, and the like. One would not expect to hear that force
equals mass times acceleration or that an object falls at an increasing rate
of 9.8 meters per second per second. The rules of physics undeniably
apply to the game of basketball in the broad sense of the term “applica-
ble,” but a speaker who listed those rules would almost certainly be doing
so for comic effect.
5562 ILETO v. GLOCK
ten statement with respect to any fact material to the
lawfulness of the sale or other disposition of a quali-
fied product; or
(II) any case in which the manufacturer or seller
aided, abetted, or conspired with any other person to
sell or otherwise dispose of a qualified product,
knowing, or having reasonable cause to believe, that
the actual buyer of the qualified product was prohib-
ited from possessing or receiving a firearm or ammu-
nition under subsection (g) or (n) of section 922 of
Title 18[.]
15 U.S.C. § 7903(5)(A)(iii). We conclude from those illustra-
tions that Plaintiffs’ asserted meaning of “applicable” appears
too broad, but that Defendants’ proposed restrictive meaning
appears too narrow. See Jarecki v. G.D. Searle & Co., 367
U.S. 303, 307 (1961) (noting that "a word is known by the
company it keeps”); Cal. State Legislative Bd. v. Dep’t of
Transp., 400 F.3d 760, 763 (9th Cir. 2005) (“[T]he general
term should be defined in light of the specific examples pro-
vided.”).
The illustrative predicate statutes pertain specifically to
sales and manufacturing activities, and most also target the
firearms industry specifically. Those examples suggest that
Plaintiffs’ proposed all-encompassing meaning of the term
“applicable” is incorrect, because each of the examples has—
at the very least—a direct connection with sales or manufac-
turing. Indeed, if any statute that “could be applied” to the
sales and manufacturing of firearms qualified as a predicate
statute, there would be no need to list examples at all. Simi-
larly, the examples suggest that Defendants’ asserted narrow
meaning is incorrect, because some of the examples do not
pertain exclusively to the firearms industry.
In conclusion, we hold that, viewed in isolation, the term
“applicable” has a range of meanings. The context in which
ILETO v. GLOCK 5563
the term appears in the PLCAA suggests that neither Plain-
tiffs’ nor Defendants’ asserted meaning is wholly correct. In
any event, we conclude, as did the Second Circuit, City of
New York, 524 F.3d at 401, that the text of the statute alone
is inconclusive as to Congress’ intent.5 We thus are left to
examine the additional indicators of congressional intent.
Jonah R., 446 F.3d at 1005.
2. The Purpose of the PLCAA
Congress enacted the PLCAA in response to “[l]awsuits . . .
commenced against manufacturers, distributors, dealers, and
importers of firearms that operate as designed and intended,
which seek money damages and other relief for the harm
caused by the misuse of firearms by third parties, including
criminals.” 15 U.S.C. § 7901(a)(3). Congress found that man-
ufacturers and sellers of firearms “are not, and should not, be
liable for the harm caused by those who criminally or unlaw-
fully misuse firearm products or ammunition products that
function as designed and intended.” Id. § 7901(a)(5). Con-
gress found egregious “[t]he possibility of imposing liability
on an entire industry for harm that is solely caused by others.”
Id. § 7901(a)(6). Congress reasoned that “[t]he liability
actions . . . are based on theories without foundation in hun-
dreds of years of the common law and jurisprudence of the
United States and do not represent a bona fide expansion of
the common law.” Id. § 7901(a)(7).
5
We acknowledge that the Indiana Court of Appeals reached the oppo-
site conclusion. City of Gary, 875 N.E.2d at 434. We find that case to have
limited persuasive value, though, in part because the court’s decision
rested, in the alternative, on the fact that the plaintiffs there had alleged
violations of the state’s statutory firearm regulations. Id. at 432-33 & n.7.
No such allegations are made here. Indeed, the City of Gary court distin-
guished the facts of this case on that basis. See id. at 433 n.7 (“Here,
unlike in Ileto, the City alleged activity on the part of the Manufacturers
that facilitates unlawful sales and violates regulatory statutes.”).
5564 ILETO v. GLOCK
[6] The PLCAA’s stated primary purpose is:
To prohibit causes of action against manufactur-
ers, distributors, dealers, and importers of firearms or
ammunition products, and their trade associations,
for the harm solely caused by the criminal or unlaw-
ful misuse of firearm products or ammunition prod-
ucts by others when the product functioned as
designed and intended.
Id. § 7901(b)(1).
[7] In view of those congressional findings and that state-
ment of purpose, Congress clearly intended to preempt
common-law claims, such as general tort theories of liability.6
Plaintiffs’ claims—"classic negligence and nuisance,” Ileto I,
349 F.3d at 1202—are general tort theories of liability that
traditionally have been embodied in the common law. With
this background in mind, which strongly suggests that Con-
gress intended to preempt Plaintiffs’ claims, we turn to the
predicate exception at issue here.
The predicate exception covers causes of action that allege
knowing violations of a state or federal statute applicable to
the sale or marketing of firearms. Plaintiffs argue that this
exception covers all state statutes that could be applied to the
6
That conclusion is bolstered by Congress’ inclusion of the second
exception to preemption: The PLCAA does not preempt claims against a
seller of firearms for negligent entrustment or negligence per se. 15 U.S.C.
§ 7903(5)(A)(ii). That exception demonstrates that Congress consciously
considered how to treat tort claims. While Congress chose generally to
preempt all common-law claims, it carved out an exception for certain
specified common-law claims (negligent entrustment and negligence per
se). Cf. Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here . . .
Congress includes particular language in one section of a statute but omits
it in another section of the same Act, it is generally presumed that Con-
gress acts intentionally and purposely in the disparate inclusion or exclu-
sion.” (brackets and internal quotation marks omitted)). Plaintiffs have not
argued that their claims fall under this exception.
ILETO v. GLOCK 5565
sale or marketing of firearms. Because California long ago
codified its common law into the California Civil Code, Plain-
tiffs argue that its general tort claims fall within this excep-
tion. We disagree for three reasons.
[8] First, although the California legislature codified its
common law,
it was not the intention of the Legislature in enacting
section 1714 of the Civil Code, as well as other sec-
tions of that code declarative of the common law, to
insulate the matters therein expressed from further
judicial development; rather it was the intention of
the Legislature to announce and formulate existing
common law principles and definitions for purposes
of orderly and concise presentation and with a dis-
tinct view toward continuing judicial evolution.
Li. v. Yellow Cab Co. of Cal., 532 P.2d 1226, 1233 (Cal.
1975). In other words, although California has codified its
common law, the evolution of those statutes is nevertheless
subject to the same “judicial evolution” as ordinary common-
law claims in jurisdictions that have not codified common
law. That “judicial evolution” was precisely the target of the
PLCAA:
The liability actions . . . are based on theories
without foundation in hundreds of years of the com-
mon law and jurisprudence of the United States and
do not represent a bona fide expansion of the com-
mon law. The possible sustaining of these actions by
a maverick judicial officer or petit jury would
expand civil liability in a manner never contem-
plated by the framers of the Constitution, by Con-
gress, or by the legislatures of the several States.
15 U.S.C. § 7901(a)(7).
5566 ILETO v. GLOCK
Second, congressional findings speak to the scope of the
predicate exception. Against the backdrop of Congress’ find-
ings on the unjustified “expansion of the common law,” id.,Congress also found that “[t]he manufacture, importation,
possession, sale, and use of firearms and ammunition in the
United States are heavily regulated by Federal, State, and
local laws,” id. § 7901(a)(4). We find it more likely that Con-
gress had in mind only these types of statutes—statutes that
regulate manufacturing, importing, selling, marketing, and
using firearms or that regulate the firearms industry—rather
than general tort theories that happened to have been codified
by a given jurisdiction.
Third, Plaintiffs’ argument leads to a result that is difficult
to square with Congress’ intention to create national unifor-
mity. If Plaintiffs’ view is correct, then general tort theories
of liability are not preempted by the PLCAA in those states,
like California, that have codified its common law. But, at the
same time, those same theories of liability are preempted by
the PLCAA in the states that have not codified their common
law.
[9] In conclusion, an examination of the text and purpose
of the PLCAA shows that Congress intended to preempt gen-
eral tort theories of liability even in jurisdictions, like Califor-
nia, that have codified such causes of action.
3. Legislative History
[10] We make two general observations from our review of
the extensive legislative history of the PLCAA.7 First, all of
the congressional speakers’ statements concerning the scope
of the PLCAA reflected the understanding that manufacturers
and sellers of firearms would be liable only for statutory vio-
7
We are indebted to the district court for its exhaustive analysis of the
legislative history. Ileto, 421 F. Supp. 2d at 1292-96; see also City of New
York, 524 F.3d at 403-04 (discussing the legislative history of the Act).
ILETO v. GLOCK 5567
lations concerning firearm regulations or sales and marketing
regulations. See, e.g., 151 Cong. Rec. S9087-01 (statement of
Sen. Craig) (“This bill does not shield [those who] . . . have
violated existing law . . . and I am referring to the Federal
firearms laws.”); id. S9217-02 (statement of Sen. Hutchison)
(“[Lawsuits] would also be allowed where there is a knowing
violation of a firearms law.”); id. (statement of Sen. Craig
reading a Wall Street Journal article) (“The gun makers . . .
would continue to face civil suits for defective products or for
violating sales regulations.”); id. (statement of Sen. Reed in
opposition to the PLCAA) (“We will let [plaintiffs] proceed
with their suit if there is a criminal violation or a statutory
violation, a violation of regulations, but for the vast number
of other responsibilities we owe to each other, that are defined
for the civil law, one will not have the opportunity to go to
court.”); id. S8927-01 (statement of Sen. Reed) (stating that
the PLCAA would not apply to violations of “statutes related
to the sale or manufacturing of a gun”); id. S9246-02 (state-
ment of Sen. Santorum) (“This bill provides carefully tailored
protections that continue to allow legitimate suits based on
knowing violations of Federal or State law related to gun
sales.”).
[11] Second, congressional speakers referred to this very
case as the type of case they meant the PLCAA to preempt.
See 151 Cong. Rec. E2162-03 (statement of Rep. Stearns) (“I
want the Congressional Record to clearly reflect some spe-
cific examples of the type of predatory lawsuits this bill will
immediately stop[:] . . . [An] example is the case of Ileto v.
Glock, in Federal court in Los Angeles, CA.”); id. (statement
of Sen. Craig) (“I want to give some examples of exactly the
type of predatory lawsuits this bill will eliminate. . . . [An]
example of a lawsuit captured by this bill is the case of Ileto
v. Glock, pending in Federal court in Los Angeles, CA.”); see
also Adames v. Sheahan, 880 N.E.2d 559, 586 (Ill. Ct. App.
2007) (noting that “Congress was primarily concerned with
novel nuisance cases like Ileto”), rev’d on other grounds, ___
5568 ILETO v. GLOCK
N.E.2d ___, No. 105789, 2009 WL 711297 (Ill. Mar. 19,
2009).
We are mindful of the limited persuasive value of the
remarks of an individual legislator. See, e.g., Consumer Prod.
Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 118
(1980) (“[O]rdinarily even the contemporaneous remarks of a
single legislator who sponsors a bill are not controlling in ana-
lyzing legislative history.”); Brock v. Writers Guild of Am.,
W., Inc., 762 F.2d 1349, 1356 (9th Cir. 1985) (“The remarks
of legislators opposed to legislation are entitled to little
weight in the construction of statutes.”). Nevertheless, the
unanimously expressed understanding of the scope of the
PLCAA assists our analysis, particularly when that expressed
understanding is in complete harmony with the congressional
purpose and the statutory text.
4. Conclusion
[12] “Our inquiry into the scope of a statute’s pre-emptive
effect is guided by the rule that ‘[t]he purpose of Congress is
the ultimate touchstone in every pre-emption case.’ ” Altria
Group, Inc. v. Good, 129 S. Ct. 538, 543 (2008) (quoting
Medtronic, Inc., 518 U.S. at 485) (some internal quotation
marks omitted). The purpose of the PLCAA leads us to con-
clude that Congress intended to preempt general tort law
claims such as Plaintiffs’, even though California has codified
those claims in its civil code.8 Our examination of the legisla-
tive history of the Act further confirms that conclusion.
Accordingly, we hold that the district court correctly held that
8
The constitutional avoidance doctrine therefore does not apply. See
Boumediene v. Bush, 128 S. Ct. 2229, 2271 (2008) (“The canon of consti-
tutional avoidance does not supplant traditional modes of statutory inter-
pretation. We cannot ignore the text and purpose of a statute in order to
save it.” (citation omitted)); see also supra Part B.4.
ILETO v. GLOCK 5569
Plaintiffs’ California tort claims against Defendants Glock
and RSR are preempted by the PLCAA.9
B. Constitutionality of the PLCAA
Decrying primarily the retroactive aspects of the Act, Plain-
tiffs argue that the PLCAA is unconstitutional on its face and
as applied. We note at the outset that “retroactive statutes
raise particular concerns.” Landgraf v. USI Film Prods., 511
U.S. 244, 266 (1994). Indeed,
[t]he Legislature’s unmatched powers allow it to
sweep away settled expectations suddenly and with-
out individualized consideration. Its responsivity to
political pressures poses a risk that it may be
tempted to use retroactive legislation as a means of
retribution against unpopular groups or individuals.
Id.The strongest protection that federal courts give to those
concerns, however, is a requirement that Congress manifest
the retroactive nature of legislation with “clear intent.” Id. at
272. “[A] requirement that Congress first make its intention
clear helps ensure that Congress itself has determined that the
benefits of retroactivity outweigh the potential for disruption
or unfairness.” Id. at 268; see also id. at 272-73 (“Requiring
clear intent assures that Congress itself has affirmatively con-
sidered the potential unfairness of retroactive application and
determined that it is an acceptable price to pay for the coun-
tervailing benefits.”). “Such a requirement allocates to Con-
gress responsibility for fundamental policy judgments
concerning the proper temporal reach of statutes, and has the
additional virtue of giving legislators a predictable back-
ground rule against which to legislate.” Id. at 273.
9
We need not, and do not, express any view on the scope of the predi-
cate exception with respect to any other statute.
5570 ILETO v. GLOCK
Where, as here, Congress has expressed its clear intent that
the legislation be retroactive, “the constitutional impediments
to retroactive civil legislation are now modest.” Id. at 272; see
also id. at 267 (“The Constitution’s restrictions, of course, are
of limited scope.”). “[T]he potential unfairness of retroactive
civil legislation is not a sufficient reason for a court to fail to
give a statute its intended scope.” Id. “Retroactivity provi-
sions often serve entirely benign and legitimate purposes,
[including] . . . simply to give comprehensive effect to a new
law Congress considers salutary.” Id. at 267-68.
Additionally, we note that the only function of the PLCAA
is to preempt certain claims. The practical effect of the
PLCAA is thus to shift the economic burden for those claims
from the firearms industry to the would-be plaintiffs. “It is by
now well established that legislative Acts adjusting the bur-
dens and benefits of economic life come to the Court with a
presumption of constitutionality . . .” Usery v. Turner Elkhorn
Mining Co., 428 U.S. 1, 15 (1976). “[T]he strong deference
accorded legislation in the field of national economic policy
is no less applicable when that legislation is applied retroac-
tively . . . .” Pension Benefit Guar. Corp. v. R.A. Gray & Co.,
467 U.S. 717, 729 (1984).
With that background understanding, we address each of
Plaintiffs’ constitutional challenges. Like all appellate courts
that have assessed the constitutionality of the PLCAA, City of
New York, 524 F.3d at 392-98; Adames, 2009 WL 711297, at
*20-21; District of Columbia, 940 A.2d at 172-82, we hold
that the Act is constitutional on its face and as applied.
1. Separation of Powers
[13] Plaintiffs argue that, on its face, the PLCAA violates
the constitutional requirement of separation of powers
because, by enacting that Act, Congress impinged on the role
of the judiciary. It has long been recognized that Congress
may not “prescribe rules of decision to the Judicial Depart-
ILETO v. GLOCK 5571
ment of the government in cases pending before it.” United
States v. Klein, 80 U.S. (13 Wall.) 128, 147 (1872). “What-
ever the precise scope of Klein, however, later decisions have
made clear that its prohibition does not take hold when Con-
gress ‘amend[s] applicable law.’ ” Plaut v. Spendthrift Farm,
Inc., 514 U.S. 211, 218 (1995) (quoting Robertson v. Seattle
Audubon Soc’y, 503 U.S. 429, 441 (1992)). “Thus, if a statute
‘compel[s] changes in the law, not findings or results under
old law,’ it merely amends the underlying law, and is there-
fore not subject to a Klein challenge.” Imprisoned Citizens
Union v. Ridge, 169 F.3d 178, 187 (3d Cir. 1999) (alteration
in original) (quoting Robertson, 503 U.S. at 438).
[14] Here, Congress has amended the applicable law; it has
not compelled results under old law. The PLCAA sets forth
a new legal standard—the definition (with exceptions) of a
“qualified civil liability action"—to be applied to all cases. As
we explained in Catholic Social Services, Inc. v. Reno, 134
F.3d 921, 926 (9th Cir. 1997) (per curiam), the Supreme
Court in Robertson “held that a statute affecting pending
cases, indeed designating them by name and number, did not
offend separation of powers because Congress was changing
the law applicable to those cases rather than impermissibly
interfering with the judicial process.” Here, Plaintiffs’ argu-
ment that the PLCAA runs afoul of Klein is even less compel-
ling than the argument in Robertson because the PLCAA
applies generally to all cases, both pending and future.
We likewise reject Plaintiffs’ alternative argument that the
PLCAA violates the Supreme Court’s holding in Plaut that
Congress cannot “overrule[ ] ‘the judicial department with
regard to a particular case or controversy.’ ” (Quoting Plaut,
514 U.S. at 227.) As the quoted sentence makes clear, that
rule applies to final decisions by the judiciary, not to pending
cases. See id. (“[E]ach court, at every level, must decide [a
case] according to existing laws. Having achieved finality,
however, a judicial decision becomes the last word of the
judicial department with regard to a particular case or contro-
5572 ILETO v. GLOCK
versy [and cannot be overruled by congressional act].”
(emphasis added) (citation and internal quotation marks omit-
ted)). The PLCAA applies only to pending and future cases
and does not purport to undo final judgments of the judiciary.
The mere fact that members of Congress wanted to preempt
this pending case by name does not change our analysis.
[15] For those reasons, we hold that the PLCAA does not
violate the constitutional separation of powers. See also City
of New York, 524 F.3d at 395-96 (holding that the PLCAA
does not violate separation of powers doctrine); District of
Columbia, 940 A.2d at 172-73 (same).
2. Equal Protection, Substantive Due Process, and Tak-
ings
[16] Plaintiffs next argue that the PLCAA violates equal
protection and substantive due process principles because the
Act is an unconstitutional exercise of congressional power
that cannot withstand rational basis review. Plaintiffs face an
uphill battle: “[B]arring irrational or arbitrary conduct, Con-
gress can adjust the incidents of our economic lives as it sees
fit. Indeed, the Supreme Court has not blanched when settled
economic expectations were upset, as long as the legislature
was pursuing a rational policy.” Lyon v. Agusta S.P.A., 252
F.3d 1078, 1086 (9th Cir. 1989) (citations omitted); see also
Pension Benefit, 467 U.S. at 729 (“Provided that the retroac-
tive application of a statute is supported by a legitimate legis-
lative purpose furthered by rational means, judgments about
the wisdom of such legislation remain within the exclusive
province of the legislative and executive branches[.]”); Usery,
428 U.S. at 15 (“It is by now well established that legislative
Acts adjusting the burdens and benefits of economic life come
to the Court with a presumption of constitutionality, and that
the burden is on one complaining of a due process violation
to establish that the legislature has acted in an arbitrary and
irrational way.”).
ILETO v. GLOCK 5573
There is nothing irrational or arbitrary about Congress’
choice here: It saw fit to “adjust the incidents of our economic
lives” by preempting certain categories of cases brought
against federally licensed manufacturers and sellers of fire-
arms. In particular, Congress found that the targeted lawsuits
“constitute[ ] an unreasonable burden on interstate and foreign
commerce of the United States,” 15 U.S.C. § 7901(a)(6), and
sought “[t]o prevent the use of such lawsuits to impose unrea-
sonable burdens on interstate and foreign commerce,” id.§ 7901(b)(4).10 Congress carefully constrained the Act’s reach
to the confines of the Commerce Clause. See, e.g., id.
§ 7903(2) (including an interstate- or foreign-commerce ele-
ment in the definition of a “manufacturer”); id. § 7903(4)
(same: “qualified product”); id. § 7903(6) (same: “seller”).
Plaintiffs disagree with Congress’ judgment in this regard.
In their view, the firearms industry is subject to relatively few
lawsuits compared to other major industries and, in any event,
the pending lawsuits could not possibly have an appreciable
effect on the firearms industry (and, by extension, on inter-
state or foreign commerce). We need not tarry long on these
considerations, because our only task is to consider whether
Congress’ chosen allocation was “irrational or arbitrary.”
Lyons, 252 F.3d at 1086; Usery, 428 U.S. at 15; see also
Pierce County v. Guillen, 537 U.S. 129, 147 (2003) (uphold-
ing a Commerce Clause challenge because “Congress could
reasonably believe” that the statute affected interstate com-
merce). We have no trouble concluding that Congress ratio-
nally could find that, by insulating the firearms industry from
a specified set of lawsuits, interstate and foreign commerce of
firearms would be affected. And “it was eminently rational for
10
We note that Congress also included findings and statements of pur-
pose related to its interest in protecting individuals’ Second Amendment
right to bear arms. 15 U.S.C. § 7901(a)(1)&(2); id. § 7901(b)(2). In their
briefs, Plaintiffs argued that the government has no such legitimate inter-
est, but the Supreme Court has since disagreed. District of Columbia v.
Heller, 128 S. Ct. 2783 (2008).
5574 ILETO v. GLOCK
Congress to conclude that the purposes of the [PLCAA] could
be more fully effectuated if its . . . provisions were applied
retroactively.” Pension Benefit, 467 U.S. at 730; see also City
of New York, 524 F.3d at 395 (“We find that Congress has not
exceeded its authority in this [PLCAA] case, where there can
be no question of the interstate character of the industry in
question and where Congress rationally perceived a substan-
tial effect on the industry of the litigation that the Act seeks
to curtail.”); District of Columbia, 940 A.2d at 175 (“Thus the
PLCAA . . . is reasonably viewed as an ‘adjust[ment of] the
burdens and benefits of economic life’ by Congress, one it
deemed necessary in exercising its power to regulate interstate
commerce.” (alteration in original) (quoting Usery, 428 U.S.
at 15)); Adames, 2009 WL 711297, at *20-21 (similarly
rejecting a Commerce Clause challenge to the PLCAA).
Plaintiffs argue, in the alternative, that both equal protec-
tion and substantive due process principles require us to con-
duct a more searching review. Plaintiffs cite Lawrence v.
Texas, 539 U.S. 558 (2003), but they fail to identify—and we
fail to see—any suspect classification common to those
adversely affected by the PLCAA.
Plaintiffs also argue that greater scrutiny is required
because they have a vested property right in their accrued
state-law causes of action. Plaintiffs’ premise is incorrect:
“We have squarely held that although a cause of action is a
species of property, a party’s property right in any cause of
action does not vest until a final unreviewable judgment is
obtained.” Lyon, 252 F.3d at 1086 (emphasis and internal
quotation marks omitted); see also Fields v. Legacy Health
Sys., 413 F.3d 943, 956 (9th Cir. 2005) (“Causes of action are
a species of property protected by the Fourteenth Amend-
ment’s Due Process Clause. However, a party’s property right
in any cause of action does not vest until a final unreviewable
judgment is obtained.” (citation, internal quotation marks, and
emphasis omitted)); Austin v. City of Bisbee, 855 F.2d 1429,
1435 (9th Cir. 1988) (explaining that, although a cause of
ILETO v. GLOCK 5575
action is a species of property, “it is inchoate and affords no
definite or enforceable property right until reduced to final
judgment” (internal quotation marks omitted)).
Plaintiffs’ argument that the PLCAA effects an unconstitu-
tional taking without just compensation fails for the same rea-
son. See Landgraf, 511 U.S. at 266 (“The Fifth Amendment’s
Takings Clause prevents the Legislature (and other govern-
ment actors) from depriving private persons of vested prop-
erty rights . . . .” (emphasis added)); see also Concrete Pipe
& Prods. of Cal. Inc. v. Constr. Laborers Pension Trust for
S. Cal., 508 U.S. 602, 641 (1993) (“Given that [the petition-
er’s] due process arguments are unavailing, it would be sur-
prising indeed to discover [that] the challenged statute
nonetheless violat[ed] the Takings Clause.”); District of
Columbia, 940 A.2d at 180-82 (rejecting a Takings Clause
challenge to the PLCAA).
3. Procedural Due Process
Plaintiffs next argue that the PLCAA violates their proce-
dural due process rights because their pending lawsuit was
abridged without adequate hearing. “As [the Supreme
Court’s] decisions have emphasized time and again, the Due
Process Clause grants the aggrieved party the opportunity to
present his case and have its merits fairly judged.” Logan v.
Zimmerman Brush Co., 455 U.S. 422, 433 (1982).
In Logan, state law required a state commission to conduct
a fact-finding conference within 120 days of receiving of an
employment discrimination complaint. Id. at 424. The plain-
tiff filed a timely complaint, but the commission inadvertently
convened the conference after the 120-day deadline. Id. at
424-25. The Illinois Supreme Court held that the Commission
therefore lacked jurisdiction over the complaint because the
120-day deadline was jurisdictional, and rejected the plain-
tiff’s due process arguments. Id. at 426-27.
5576 ILETO v. GLOCK
The United States Supreme Court reversed. The Court held
that the plaintiff had a protected property interest in her claim
and “that ‘some form of hearing’ is required before the owner
is finally deprived of a protected property interest.” Id. at 433(quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564,
570 n.8 (1972)). “To put it as plainly as possible, the State
may not finally destroy a property interest without first giving
the putative owner an opportunity to present his claim of enti-
tlement.” Id. at 434.
But the Court explicitly limited its holding to “a procedural
limitation on the claimant’s ability to assert his rights, not a
substantive element of the [underlying] claim.” Id. at 433. The
Court explained:
Of course, the State remains free to create sub-
stantive defenses or immunities for use in
adjudication—or to eliminate its statutorily created
causes of action altogether—just as it can amend or
terminate its welfare or employment programs. The
Court held as much in Martinez v. California, 444
U.S. 277 (1980), where it upheld a California statute
granting officials immunity from certain types of
state tort claims. We acknowledged that the grant of
immunity arguably did deprive the plaintiffs of a
protected property interest. But they were not
thereby deprived of property without due process,
just as a welfare recipient is not deprived of due pro-
cess when the legislature adjusts benefit levels. In
each case, the legislative determination provides all
the process that is due.
Id. at 432-33 (some citations omitted) (emphasis added).
[17] Here, the PLCAA does not impose a procedural limita-
tion; rather, it creates a substantive rule of law granting
immunity to certain parties against certain types of claims. In
such a case, “the legislative determination provides all the
ILETO v. GLOCK 5577
process that is due.” Id. at 433. On the substantive question
created by the PLCAA—whether this case meets the defini-
tion of a “qualified civil liability action"—Plaintiffs were, of
course, afforded an ample hearing before the district court.
We therefore hold that the PLCAA did not violate Plaintiffs’
procedural due process rights. See also District of Columbia,
940 A.2d at 177 (“[W]e hold that while the plaintiffs’ cause
of action . . . ‘is a species of property protected by . . . [d]ue
process,’ they received ‘all the process that is due’ when Con-
gress barred pending actions such as theirs from proceeding
as a rational means ‘to give comprehensive effect to a new
law that it considered salutary.’ ” (quoting Logan, 455 U.S. at
428; Landgraf, 511 U.S. at 268) (brackets omitted)).
[18] In conclusion, like all other appellate courts to have
addressed the issue, we hold that the PLCAA is constitutional.
4. Constitutional Avoidance
[19] We respond briefly to the thoughtful views of our dis-
senting colleague on the topic of constitutional avoidance.
That doctrine does not apply where, as here, congressional
intent is clear from the text and purpose of the statute. See
supra note 8 (quoting Boumediene, 128 S. Ct. at 2271).
Because the dissent’s alternative interpretation of the PLCAA
rests entirely on the doctrine, we explain below why the doc-
trine would not apply, even if congressional intent were not
clear from the text and purpose of the statute.
We begin with the scope of the doctrine. In Edward J.
DeBartolo Corp. v. Florida Gulf Coast Building & Construc-
tion Trades Council, the Supreme Court stated that, “where an
otherwise acceptable construction of a statute would raise
serious constitutional problems, the Court will construe the
statute to avoid such problems unless such construction is
plainly contrary to the intent of Congress.” 485 U.S. 568, 575
(1988) (emphasis added); see also Clark v. Martinez, 543
U.S. 371, 381 (2005) (describing the doctrine as “a tool for
5578 ILETO v. GLOCK
choosing between competing plausible interpretations of a
statutory text, resting on the reasonable presumption that Con-
gress did not intend the alternative which raises serious con-
stitutional doubts” (emphasis added)). As the Court has
instructed, we may invoke the doctrine only if we have “grave
doubts” about the constitutionality of the statute. Almendarez-
Torres v. United States, 523 U.S. 224, 237-38 (1998) (quoting
United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916)); see
also id. at 238 (“[T]hose who invoke the doctrine must
believe that the alternative is a serious likelihood that the stat-
ute will be held unconstitutional.” (emphasis added)).
We have no grave doubts here. The dissent does not, and
cannot, point to a single case in which we, the Supreme Court,
or any sister circuit has held that a federal statute violates sub-
stantive due process for the reasons asserted by Plaintiffs.
And, as discussed above, we have upheld against constitu-
tional challenges many statutes with characteristics nearly
identical to those of the PLCAA.
The dissent bypasses those important and indisputable facts
in the following way. First, it argues that the Supreme Court
has never addressed the precise issue at hand: whether Con-
gress may abolish pending common-law claims11 without pro-
viding any alternative means of redress. Second, the dissent
argues that the Supreme Court has suggested that this issue
would raise serious constitutional questions. We disagree on
both counts.
First, the PLCAA does not completely abolish Plaintiffs’
ability to seek redress. The PLCAA preempts certain catego-
ries of claims that meet specified requirements, but it also
carves out several significant exceptions to that general rule.
Some claims are preempted, but many are not. Indeed, as we
11
Plaintiffs bring statutory, not common-law claims; as we have recog-
nized above, however, the relevant California statutes essentially codify
state common law.
ILETO v. GLOCK 5579
hold below, Plaintiffs may proceed on their claims against
Defendant China North. Plaintiffs’ ability to seek redress has
been limited, but not abolished.12
Second, we do not doubt the constitutionality of the
PLCAA, let alone have “grave doubts.” As discussed above,
no decision by us, the Supreme Court, or any sister circuit has
held that a statute violates substantive due process for the rea-
sons asserted by Plaintiffs. To the contrary, scores of cases
concerning very similar statutes have held that the statutes do
not violate substantive due process principles.
The dissent finds, in a small number of sources, hints that
there could be a lurking, serious constitutional question. Jus-
tice Marshall stated in a concurrence that he would adopt a
more searching review, see PruneYard Shopping Ctr. v. Rob-
ins, 447 U.S. 74, 93-94 (1980) (Marshall, J., concurring), and
Justice White stated in a dissent from dismissal of certiorari
that he would prefer to address the issue, see Fein v. Perma-
nente Med. Group, 474 U.S. 892, 894-95 (1985) (White, J.,
dissenting from dismissal of certiorari). Dissent at 5597-98.
Those comments do not raise a serious constitutional ques-
tion. The doctrine of constitutional avoidance requires “grave
doubts,” not occasional statements by a justice or two.
More importantly, the dissent quotes majority opinions in
12
Furthermore, as the dissent recognizes, dissent at 5619, its proffered
interpretation of the PLCAA would raise the same constitutional concern.
The dissent would require a plaintiff to allege and prove a “knowing” stat-
utory violation, even though that requirement introduces a new, or more
difficult, element for the plaintiff to prove. Dissent at 5620. That interpre-
tation, however, also “abolishes” common-law remedies for a large class
of plaintiffs, because certain claims that were cognizable before the enact-
ment of the PLCAA would no longer be cognizable. Whatever the bound-
aries of the constitutional avoidance doctrine, its point is to adopt an
alternative interpretation of the statute that avoids any constitutional prob-
lem, whereas the dissent’s alternative still raises the identical issue in a
slightly different form.
5580 ILETO v. GLOCK
two cases: N.Y. Cent. R.R. Co. v. White, 243 U.S. 188, 201
(1917); and Duke Power Co. v. Carolina Envtl. Study Group,
Inc., 438 U.S. 59, 88 (1978). Dissent at 5597-98. But those
sources do not demonstrate a serious constitutional question
either. In White, the Court expressed concern about whether
“a State might, without violence to the constitutional guaranty
of ‘due process of law,’ suddenly set aside all common-law
rules respecting liability as between employer and employee,
without providing a reasonably just substitute.” 243 U.S. at
201 (emphasis added). That dictum is inapposite. The PLCAA
contains numerous exceptions and comes nowhere near set-
ting aside all common-law rules concerning firearm manufac-
turers.
The dissent’s reliance on Duke Power is even less persua-
sive. There, the Court reiterated that it was an open question
whether a legislature may abolish a common-law recovery
scheme without providing a reasonable substitute remedy.
Duke Power, 438 U.S. at 88. As we have repeatedly noted,
here Congress has left in place a number of substitute reme-
dies.
For these reasons, we decline to apply the doctrine of con-
stitutional avoidance.
C. Preemption of Claims Against Defendant China North
Finally, we address Defendant China North’s interlocutory
appeal from the district court’s order holding that the PLCAA
does not preempt Plaintiffs’ claims against it. We return to the
text of the PLCAA, which preempts
a civil action or proceeding or an administrative pro-
ceeding brought by any person against a manufac-
turer or seller of a qualified product, or a trade
association, for damages, punitive damages, injunc-
tive or declaratory relief, abatement, restitution,
fines, or penalties, or other relief, resulting from the
ILETO v. GLOCK 5581
criminal or unlawful misuse of a qualified product
by the person or a third party, but shall not include
[specified enumerated exceptions.]
15 U.S.C. § 7903(5)(A) (emphasis added). Again, we agree
with the parties that this case is a “civil action” brought by a
“person” for damages and other relief to redress harm, “result-
ing from the criminal . . . misuse of a qualified product by . . .
a third party.” Id. The parties dispute, however, whether the
case is “brought . . . against a manufacturer or seller of a qual-
ified product.” Id.[20] In Ileto I, 349 F.3d at 1215, we held that Plaintiffs’
claims against Defendant China North stated a claim under
California law because of China North’s status as a manufac-
turer and seller of firearms. The PLCAA preempts only
actions brought against federally licensed manufacturers and
sellers of firearms. See id. § 7903(2) (defining the term “man-
ufacturer”); id. § 7903(6) (defining the term “seller”).13 China
13
The full text of those provisions states:
The term “manufacturer” means, with respect to a qualified
product, a person who is engaged in the business of manufactur-
ing the product in interstate or foreign commerce and who is
licensed to engage in business as such a manufacturer under [fed-
eral law].
15 U.S.C. § 7903(2).
The term “seller” means, with respect to a qualified product—
(A) an importer (as defined in section 921(a)(9) of Title 18)
who is engaged in the business as such an importer in interstate
or foreign commerce and who is licensed to engage in business
as such an importer under [federal law];
(B) a dealer (as defined in section 921(a)(11) of Title 18) who
is engaged in the business as such a dealer in interstate or foreign
commerce and who is licensed to engage in business as such a
dealer under [federal law]; or
(C) a person engaged in the business of selling ammunition (as
defined in section 921(a)(17)(A) of Title 18) in interstate or for-
eign commerce at the wholesale or retail level.
Id. § 7903(6).
5582 ILETO v. GLOCK
North concedes that it is not a federally licensed manufacturer
or seller of firearms. It follows, then, that the PLCAA does
not preempt Plaintiffs’ claims against China North.
To escape this straightforward reasoning, China North
points out that the PLCAA preempts more than actions
brought against federally licensed manufacturers and sellers
of firearms. The PLCAA also preempts actions brought
against all sellers of ammunition. Id. § 7903(6)(C). China
North argues that, because it is a seller of ammunition, the
PLCAA preempts Plaintiffs’ claims, notwithstanding the fact
that Plaintiffs’ claims concern only China North’s actions as
a manufacturer and seller of firearms and have nothing to do
with China North’s coincidental status as a seller of ammuni-
tion. We are unpersuaded.
The PLCAA preempts specified types of liability actions;
it does not provide a blanket protection to specified types of
defendants. See id. § 7902(a) (“A qualified civil liability
action may not be brought in any Federal or State court.”).
Furthermore, Congress chose to preempt certain actions
brought against manufacturers and sellers of firearms, but
explicitly limited the preemptive effect to those manufacturers
and sellers who are federally licensed. China North’s reading
of the statute would eviscerate that limitation when, as here,
the defendant also happens to be a seller of ammunition.
China North argues that, had Congress intended a nexus
between the basis of the allegations and the nature of the
defendant’s business, it would have modified the term “quali-
fied product” with the definite article “the,” instead of the
indefinite article “a.” The scope of preempted actions thereby
would encompass
a civil action or proceeding or an administrative pro-
ceeding brought by any person against a manufac-
turer or seller of a qualified product, or a trade
association, for damages, punitive damages, injunc-
ILETO v. GLOCK 5583
tive or declaratory relief, abatement, restitution,
fines, or penalties, or other relief, resulting from the
criminal or unlawful misuse of [the] qualified prod-
uct by the person or a third party.
15 U.S.C. § 7903(5)(A). We grant that China North’s alter-
ation arguably is more clear but, without more, we are not
persuaded on that basis alone that Congress intended to undo
the logical reading of the statute as requiring a nexus between
the basis of the allegations and the nature of the defendant’s
business. Plaintiffs’ claims concern the manufacture and sale
of firearms; we cannot conclude that those claims are pre-
empted simply because China North also happens to sell
ammunition.
[21] We therefore affirm the district court’s holding that the
PLCAA does not preempt Plaintiffs’ claims against China
North, and we remand for further proceedings.
CONCLUSION
We sympathize with Plaintiffs, who suffered grievous
harm, that Congress preempted some of their claims. Never-
theless, the Constitution “allocates to Congress responsibility
for [such] fundamental policy judgments.” Landgraf, 511
U.S. at 273. Finding no constitutional flaw, we affirm the dis-
trict court’s holding that the PLCAA applies to Plaintiffs’
claims against Defendants Glock and RSR. We also affirm the
district court’s holding that the PLCAA does not apply to
Plaintiffs’ claims against Defendant China North because,
lacking a federal firearms license, it cannot seek haven under
the PLCAA.
No. 06-56872: AFFIRMED. Costs on appeal awarded to
Defendants-Appellees Glock and RSR.
Nos. 07-15403 & 07-15404: AFFIRMED and
REMANDED for further proceedings. Costs on appeal
awarded to Plaintiffs-Appellants.
ILETO v. GLOCK 5585
Volume 2 of 2
ILETO v. GLOCK 5591
BERZON, Circuit Judge, concurring in part and dissenting in
part:
I agree with the majority that the language of the PLCAA’s
predicate exception is ambiguous. The interpretation on which
the majority ultimately settles, however, requires deciding
what I consider to be a substantial constitutional question:
whether, if the PLCAA requires the dismissal of Plaintiffs’
pending state causes of action, the statute will unconstitution-
ally deprive them of a protected property interest.
The majority resolves this question by concluding that the
PLCAA’s mandatory dismissal provision is rationally related
to a legitimate government interest and that no heightened
level of constitutional scrutiny is warranted. The majority’s
cursory discussion of the constitutional issue belies the
sweeping nature of what it reads the PLCAA to do, and the
difficult questions of constitutional law required to uphold
that reading. Neither the Supreme Court nor this Circuit has
ever made clear that rational basis review is the proper stan-
dard on which to review a federal statute that retroactively
requires the dismissal of pending causes of action for injuries
cognizable at common law but does not leave any alternative
means of redress. Moreover, even if we were to assume that
no heightened level of scrutiny is appropriate, I am not con-
vinced that such a statute would survive the rational basis
review outlined by the Supreme Court in Duke Power Co. v.
Carolina Envtl. Study Group, 438 U.S. 59 (1978).
The majority tacitly breaks new ground in deciding these
questions. It need not — and should not — do so. The canon
of constitutional avoidance counsels that we should “construe
the statute to avoid [serious constitutional questions] unless
such a construction is plainly contrary to the intent of Con-
gress.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg.
& Constr. Trades Council, 485 U.S. 568, 575 (1983); see also
Clark v. Martinez, 543 U.S. 371, 380-81 (2005); NLRB v.
Catholic Bishop of Chicago, 440 U.S. 490, 507 (1979). In
5592 ILETO v. GLOCK
accordance with that maxim, I would adopt a different, but in
my view equally supportable, reading of the ambiguous statu-
tory language, which would permit the Plaintiffs’ suit as
against Defendants Glock and RSR (“Defendants”) to go for-
ward. I therefore respectfully dissent from the majority’s dis-
cussion of Plaintiffs’ substantive due process challenge, as I
would not decide the question, and from its holding that their
lawsuit does not come within the PLCAA’s predicate excep-
tion.
I.
A.
Plaintiffs have raised a number of constitutional challenges.
The one that concerns me here is their substantive due process
argument. Before I explain why their challenge presents a
serious constitutional question, I think it useful, as a prelimi-
nary matter, to identify the property interest on which Plain-
tiffs contend the PLCAA intrudes. See Wedges/Ledges of
Cal., Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994).
Generally speaking, if a plaintiff alleges that a fundamental
right is burdened by a state action, the state action is subject
to strict scrutiny and cannot stand unless it is “narrowly tai-
lored to serve a compelling state interest.” Washington v.
Glucksberg, 521 U.S. 702, 721 (1997) (internal quotation
marks omitted). If a lesser liberty or property interest is at
stake, the state action is subject to rational basis review,
which requires “a reasonable relation to a legitimate state
interest.” Id. at 722. Various forms of intermediate scrutiny,
in between these two poles, have sometimes been found appli-
cable. See Hutchins v. District of Columbia, 188 F.3d 531,
563 & n.24 (D.C. Cir. 1999) (Rogers, J., concurring in part)
(collecting cases).
Plaintiffs here have asserted a property interest in maintain-
ing their pending state-law causes of action. They acknowl-
ILETO v. GLOCK 5593
edge that the monetary award those causes of action might
ultimately yield if they proceeded to a final judgment is
uncertain, so they currently have no enforceable right to any
particular amount of damages. But, they assert, the PLCAA
also trenches on a separate and independently valuable inter-
est: their interest in maintaining their causes of action prior to
judgment and not having them dismissed.
The majority implicitly agrees with Plaintiffs’ position that
this interest is cognizable and protected by the Due Process
Clause. This much is clear, because the majority applies ratio-
nal basis review. If Plaintiffs’ interest were wholly unpro-
tected, no scrutiny, rational basis or otherwise, would be
required.
I pause to emphasize this point, because the majority then
goes on to make a potentially misleading statement: that
Plaintiffs have no “vested property right in their accrued state-
law causes of action.” Maj. Op. at 5574. What the majority
appears to mean is that Plaintiffs have not stated a fundamen-
tal property interest deserving of heightened scrutiny. I do not
understand the majority to mean that Plaintiffs have no prop-
erty interest in their causes of action at all. If that were what
the majority meant, it would be quite wrong. Like stocks or
business operating licenses, the probable value of a plaintiff’s
cause of action may fluctuate over time — here, between fil-
ing and the entry of judgment — but such fluctuations do not
mean that the cause of action is without value.1 Plaintiffs have
expended time and money to maintain their lawsuit, and, if
1
Stock ownership creates a property interest, even though the value of
stock is uncertain until the moment it is sold. See Western Pac. R.R. Corp.
v. Western Pac. R.R. Co., 197 F.2d 994, 1008 (9th Cir. 1952), rev’d on
other grounds, 345 U.S. 247 (1953). Similarly, a state operating license
(such as a liquor license) that has been granted and can be revoked only
“for cause” creates a cognizable property interest, even though the ulti-
mate worth of that license, in terms of how much of a profit the licensee
will earn in a year by operating under it, is uncertain. See Barry v. Barchi,
443 U.S. 55, 64 (1979). And pending causes of action qualify as “prop-
erty of the estate” in bankruptcy under 11 U.S.C. § 541(a)(1) — including
causes of action sounding in tort, such as personal injury, for which the
ultimate amount of recovery is uncertain. See, e.g., In re Arnold, 252 B.R.
778 (9th Cir. BAP 2000); Sierra Switchboard Co. v. Westinghouse Elec.
Corp., 789 F.2d 705, 707-09 (9th Cir. 1986).
5594 ILETO v. GLOCK
they were so inclined, they could have “sold” their causes of
action to defendants by settling for a sum of money reflecting
the expected recovery at that point in the litigation.2 A pend-
ing cause of action, therefore, may be more or less valuable
at various points during its pendency, but, even before it is
reduced to a final dollar amount, it is a “species of property
protected by the . . . Due Process Clause,” as the Supreme
Court held in Logan v. Zimmerman Brush Co., 455 U.S. 422,
428 (1982) (citations omitted).
I therefore read the majority’s statement that Plaintiffs lack
a “vested property right in their accrued state-law causes of
action,” Maj. Op. at 5574, to indicate the majority’s view that
although there is a protected property interest at stake, it is not
a fundamental right, so rational basis review, rather than strict
scrutiny, is sufficient. This usage, though odd, appears to be
consistent with our case law. Lyon v. Agusta S.P.A., 252 F.3d
1078 (9th Cir. 2001), for example, stated that “a party’s prop-
erty right in any cause of action does not vest until a final
unreviewable judgment is obtained,” id. at 1086 (internal quo-
tation marks and emphasis omitted), but it also assumed that
a statute depriving the party of the ability to litigate that cause
of action must nevertheless withstand rational basis review.
See id. (“Of course, the legislature must act in a rational man-
ner; that almost goes without saying. Here the choice was
assuredly rational.”) (internal citations omitted). Accord Duke
Power, 438 U.S. at 88 n.32 (stating that “[a] person has no
property, no vested interest, in any rule of the common law,”
but applying rational basis review to federal statute precluding
2
Additionally, California law designates certain civil actions as “choses
in action,” which may be assigned to third parties while they are still pend-
ing. See Cal. Civ. Code Sec. 954 (tort actions for damage to personal prop-
erty are assignable). Although apparently not applicable to Plaintiffs’
causes of action in this case, see Pony v. County of Los Angeles, 433 F.3d
1138, 1143 (9th Cir. 2006) (tort actions for personal injury are typically
not assignable under California law), the “chose in action” concept further
underscores the fact that pending causes of action generally have value
prior to judgment.
ILETO v. GLOCK 5595
suit) (internal quotation marks and citation omitted); Fields v.
Legacy Health Sys., 413 F.3d 943, 955-56 (9th Cir. 2005)
(upholding statute against substantive due process challenge
on rational basis review; recognizing a distinction between
vested and non-vested property rights only in the context of
petitioner’s procedural due process claim).3
B.
If this case were directly controlled by the case law just
cited, I would agree that rational basis review is the proper
level of scrutiny to apply here. And if the PLCAA were indis-
tinguishable from the statutes at issue in Lyon, Duke Power,
Fields and Austin, I would be constrained to hold that the
3
The majority also cites Austin v. City of Bisbee, 855 F.2d 1429 (9th
Cir. 1988), as supporting its constitutional holding. Austin is confusing. It
states first that “[a] cause of action is a species of property protected by
the Fourteenth Amendment’s Due Process Clause,” id. at 1435 (internal
quotation marks omitted), then that a pending cause of action is “inchoate
and affords no definite or enforceable property right until reduced to final
judgment,” id. at 1436 (citation omitted), and finally that “[e]ven if Austin
had a cognizable property right to overtime compensation, his claim fails
on due process grounds.” Id. If the middle one of these statements is read
as indicating that even rational basis scrutiny is inapplicable, it would be
clearly at odds with Duke Power, which identifies rational basis as the
appropriate level of review for such a deprivation. It would also be incon-
sistent with the very case Austin cites as support: In re Consolidated U.S.
Atmospheric Testing Litigation, 820 F.2d 982, 988-89 (9th Cir. 1987),
which adopted the First Circuit’s analysis in Hammond v. United States,
786 F.2d 8 (1st Cir. 1986). Both Atmospheric Testing and Hammond,
despite their observation that one has no “vested” interest in a pending
cause of action, apply rational basis review to the deprivation of that inter-
est. See Atmospheric Testing, 820 F.2d at 990; Hammond, 786 F.2d at 12-
13. (The First Circuit recently clarified that Hammond does not stand for
the proposition that a litigant has no protected interest in a cause of action
prior to the entry of judgment; if it did, it would be “squarely in tension
with the Supreme Court’s recognition in Logan that a cause of action is
a protected property interest.” See Dr. Jose S. Belaval, Inc. v. Perez-
Perdomo, 465 F.3d 33, 37 n.4 (1st Cir. 2006).) I therefore do not read the
opaque line in Austin as anything other than a factual statement about the
nature of a pending cause of action.
5596 ILETO v. GLOCK
PLCAA’s intrusion on Plaintiffs’ interest survives rational
basis review.
But the PLCAA is unlike those other statutes in critical
respects. We have never upheld against substantive due pro-
cess attack a federal statute with precisely the PLCAA’s con-
stellation of characteristics: (1) It completely extinguishes an
individual litigant’s ability to litigate a cause of action, rather
than limiting the amount of recovery or the procedure for
bringing suit, and it leaves no alternative channel by which
the individual may address his injury; and (2) the individual’s
cause of action is for an injury that would be cognizable under
state common law, and it was filed and pending at the time
of the federal statute’s enactment.4 To hold such a statute con-
4
All the cases on which the majority relies are distinguishable on one
or more of these grounds.
Lyon involved a challenge to the General Aviation Revitalization Act’s
statute of repose, which barred any “civil action” against a manufacturer
if the accident occurred more than eighteen years after the aircraft was
delivered to the purchaser. See 252 F.3d at 1081. The statute did not com-
pletely extinguish litigants’ rights to sue in tort, but only limited the win-
dow in which such causes of action could be filed. The Lyon plaintiffs had
not yet filed an action at the time of the statute’s passage. See id.Austin involved a challenge to an amendment of the Fair Labor Stan-
dards Act that barred recovery of unpaid overtime wages accrued prior to
1986. See 855 F.2d at 1431. The amendment did not abrogate state tort
law; rather, it curtailed a statutorily-created cause of action. See id. at 1436(“Property rights to public benefits are defined by the statutes or customs
that create the benefits. When, as here, the statute authorizing the benefits
is amended or repealed, the property right disappears.”) (internal quotation
marks omitted).
Fields involved a challenge to Oregon’s statute of limitations for
wrongful death suits and its statute of repose for medical malpractice suits.
The state provisions did not extinguish individuals’ ability to sue entirely,
but only narrowed the temporal window in which suits could be filed. See
413 F.3d at 956-57. Moreover, Fields noted that the plaintiffs’ “right of
action for wrongful death is purely statutory and . . . in Oregon there was
no right of action for wrongful death at common law.” Id. at 959. In addi-
tion, Oregon’s statutes of limitation and repose were enacted long before
ILETO v. GLOCK 5597
stitutional on rational basis review, despite the absence of any
provision for alternative forms of redress, is to step onto new
and uncertain constitutional territory.
In general, the majority is correct that Congress may limit
or abrogate rights recognized at common law when enacting
legislation “adjusting the burdens and benefits of economic
life,” so long as the abrogation is rationally related to a per-
missible goal. Usery v. Turner Elkhorn Mining Co., 428 U.S.
1, 15 (1976). It is not clear from past case law, however,
whether rational basis review is the appropriate level of scru-
tiny for a statute that abrogates common-law remedies without
providing or leaving open a substitute remedial scheme.
In fact, the Supreme Court as a whole and individual Jus-
tices of the Court have repeatedly recognized that “[q]uite
serious constitutional questions might be raised if a legislature
attempted to abolish certain categories of common-law rights
in some general way.” PruneYard Shopping Ctr. v. Robins,
447 U.S. 74, 93-94 (1980) (Marshall, J, concurring). See also
New York Central R.R. Co. v. White, 243 U.S. 188, 201
(1917) (expressing uncertainty as to whether “a state might,
without violence to the constitutional guaranty of ‘due process
Fields filed his suit. See id. at 949; see also Or. Rev. Stat. §§ 30.020(1)
(statute of limitations), 12.110(4) (statute of repose).
Duke Power involved a challenge to the Price-Anderson Act, which
limited federally licensed nuclear facilities’ accident liability to $560 mil-
lion. See 438 U.S. at 66-67. The Act did not abrogate state tort remedies,
but only imposed a federal limit on the maximum amount of recovery
plaintiffs could obtain. The Act also provided for cost-sharing among
nuclear operators and the mandatory waiver of defenses in case of an acci-
dent, id. which the Court held was a “reasonably just substitute for the
[status quo at] common-law[.]” Id. at 88. The plaintiffs, who lived close
to planned nuclear facilities, had not filed any cause of action at the time
of the Price-Anderson Act’s passage; rather, they sought a declaratory
judgment that the Act was unconstitutional, premised on the prospective
due process violation they would suffer should a nuclear accident occur.
Id. at 67-70.
5598 ILETO v. GLOCK
of law,’ suddenly set aside all common-law rules respecting
liability as between employer and employee, without provid-
ing a reasonably just substitute”). To date, the Supreme Court
has never decided what level of constitutional scrutiny applies
to a statute that abrogates a common-law cause of action and
leaves no alternative remedy available. Dissenting from the
dismissal of certiorari in a case that would have presented this
question squarely, Justice White noted:
Whether due process requires a legislatively enacted
compensation scheme to be a quid pro quo for the
common-law or state-law remedy it replaces, and if
so, how adequate it must be, . . . appears to be an
issue unresolved by this Court, and one which is
dividing the appellate and highest courts of several
States.
Fein v. Permanente Med. Group, 474 U.S. 892, 894-95
(1985) (White, J., dissenting from dismissal of certiorari).
This same question was expressly left unresolved in Duke
Power, which declined to decide what constitutional test
would apply to a statute that left no alternative remedies avail-
able:
Initially, it is not at all clear that the Due Process
Clause in fact requires that a legislatively enacted
compensation scheme either duplicate the recovery
at common law or provide a reasonable substitute
remedy. However, we need not resolve this question
here since the Price-Anderson Act does, in our view,
provide a reasonably just substitute for the common-
law or state tort law remedies it replaces.
438 U.S. at 88 (footnote omitted).
Following Duke Power’s lead, when this Circuit confronted
a substantive due process challenge to a portion of the Atomic
Energy Act abolishing individuals’ ability to sue certain gov-
ILETO v. GLOCK 5599
ernment contractors for injuries recognized at state common
law in Atmospheric Testing, it upheld the Act on rational basis
review only in conjunction with the observation that substitute
remedies — both the Federal Tort Claims Act and veterans
benefits legislation — were available to compensate the
would-be plaintiffs for the unavailability of personal injury
and wrongful death suits. See Atmospheric Testing, 820 F.2d
at 990-91.5 Other courts of appeal have done the same. See,
e.g., Hammond, 786 F.2d at 14 (noting that, in addition to the
Federal Tort Claims Act’s administrative scheme, “there may
be government compensation available to many of those
injured by radiation, including the plaintiff here, under veter-
ans benefits legislation, . . . or the [Federal Employees Com-
pensation Act].”); Ducharme v. Merrill-Nat’l Labs., 574 F.2d
1307, 1309 (5th Cir. 1978) (upholding the Swine Flu Act’s
prohibition on tort suits against private manufacturers of
swine flu vaccine, but also noting that “[t]he [substitute] cause
of action provided by the Swine Flu Act to an injured person
against the United States is substantially the same as that
afforded . . . under [Louisiana law] except that under the
Swine Flu Act no trial by jury is afforded and the plaintiff is
required to seek first administrative review of his claim.”)
Just as the federal courts are reluctant to construe a statute
as abolishing common-law rules without providing some
alternative method of redress, so Congress is reluctant to pass
legislation immunizing a private industry from common-law
tort liability — for example, when that industry is acting in
concert with a governmental program or playing a vital role
5
Kyle Rys., Inc. v. Pacific Admin. Servs., Inc., 990 F.2d 513 (9th Cir.
1993), is not to the contrary. The plaintiff in Kyle had not filed a state
claim for unjust enrichment at the time of ERISA’s passage, so the prop-
erty interest he was asserting was an interest in bringing a lawsuit, not in
maintaining a pending one. Kyle, 990 F.2d at 518-19. Additionally,
although ERISA did not furnish Kyle with a replacement federal cause of
action, id. at 519, it does provide certain “quid pro quos” to individuals
covered by employee benefit plans. The PLCAA, in contrast, provides
nothing but a “gap in the law.” Id.5600 ILETO v. GLOCK
in the nation’s economy or defense — without preserving
state tort law as a parallel track or providing some alternative
mechanism to compensate injured parties.6 Similarly, the
Supreme Court has sometimes declined to read federal stat-
utes as extinguishing the availability of state tort causes of
action in preemption cases — even where no due process
argument was advanced by the parties — when the statute
lacks a clear statement that Congress intended to do so. See,
e.g., Wyeth v. Levine, 129 S.Ct. 1187, 1200 (2009); Sprietsma
v. Mercury Marine, 537 U.S. 51, 64 (2002).
The statute at issue here is different. As interpreted by the
majority, the PLCAA retroactively extinguishes Plaintiffs’
pending state tort causes of action, and it leaves them without
any remedy for the injuries they claim they have suffered due
to Defendants’ unlawful acts. No controlling case law estab-
lishes that such legislation survives constitutional scrutiny.
Rather, the cases canvassed above suggest that at least a mod-
ified form of rational basis review, and perhaps a more
searching type of review, may be warranted for such a statute.
More specifically, if one applied to a statute abolishing
pending common-law causes of action and providing no alter-
6
Consider, for example, the National Childhood Vaccine Injury Act, 42
U.S.C. §§ 300aa-1 et seq., which provides a no-fault compensation
scheme as an alternative to tort law, see Schafer v. American Cyanamid
Co., 20 F.3d 1, 1-2 (1st Cir. 1994); and the Air Transportation Safety and
System Stabilization Act, 49 U.S.C. §§ 40101 et seq., which creates a
compensation fund and provides “an exclusive federal cause of action for
. . . claims [arising out of the September 11, 2001, airplane crashes] to be
brought in the Southern District of New York, and adjudicated on the
basis of applicable state law.” Benzman v. Whitman, 523 F.3d 119, 126
(2d Cir. 2008) (internal citations omitted). But see FISA Amendments Act
of 2008, § 802, 122 Stat. 2436, Pub. L. No. 110-261 (July 10, 2008) (pro-
viding that a “civil action . . . in a Federal or State court” arising out of
an individual or telephone company’s cooperation with the government’s
counter-terrorism wiretap program “shall be promptly dismissed” upon the
Attorney General’s certification). No federal court has yet considered
whether the FISA Amendments Act violates due process.
ILETO v. GLOCK 5601
native remedy a test no more searching than the rational basis
review applied to the Price-Anderson Act in Duke Power, it
is possible that such a statute would be held to violate due
process. Duke Power inquired whether “the legislature has
acted in an arbitrary and irrational way,” 438 U.S. at 84 (quot-
ing Usery, 428 U.S. at 15), but, as part of its “arbitrary and
irrational” inquiry, engaged in a lengthy examination of the
Price-Anderson Act, taking into consideration among other
things that the Act provided a compensation scheme that was
a “reasonably just substitute” to the common law, id. at 88,
and perhaps even an improvement on the common law.7 In
other words, the availability and effectiveness of alternative
remedies was a factor in determining whether Congress had
acted rationally or not. Thus, Duke Power applied a modified
rational basis test, not unlike the due process test applied in
cases involving retroactive legislation. See Pension Benefit
Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 729 (1984)
(economic legislation that Congress plainly intends to have
retroactive effect must not only be rationally related to a legit-
imate state interest as a general matter, but there must also be
a rational basis for its retroactive application). Duke Power
suggests that, at a minimum, a modified rational basis test
would apply here, rendering the PLCAA constitutional only
if there were rational bases both for Congress’s failure to sup-
ply any alternative remedies and for its decision to apply the
7
See id. at 90-92 (“We view the congressional assurance of a $560 mil-
lion fund for recovery, accompanied by an express statutory commit-
ment[ ] to take whatever action is deemed necessary and appropriate to
protect the public from the consequences of a nuclear accident, to be a fair
and reasonable substitute for the uncertain recovery of damages of this
magnitude from a utility or component manufacturer, whose resources
might well be exhausted at an early stage . . . . Nor are we persuaded that
the mandatory waiver of defenses required by the Act is of no benefit to
potential claimants . . . . All of these considerations belie the suggestion
that the Act leaves the potential victims of a nuclear disaster in a more dis-
advantageous position than they would be in if left to their common-law
remedies — not known in modern times for either their speed or econo-
my.”) (internal citations omitted).
5602 ILETO v. GLOCK
dismissal provision retroactively to extinguish the remedies
for common-law injuries that had already occurred and were
the subject of pending litigation.8
Alternatively, Duke Power leaves open the possibility that
where the challenged statute leaves no alternative remedy
available, the statute should be subject not to rational basis
review but to a heightened form of scrutiny. See Duke Power,
438 U.S. at 88. Concurring in PruneYard, which upheld a
California state constitutional limitation on the availability of
private trespass claims against peaceful leafletters, Justice
Marshall agreed that states may alter the protection of the
common law to a point, but he emphasized:
I do not understand the Court to suggest that rights
of property are to be defined solely by state law, or
that there is no federal constitutional barrier to the
abrogation of common-law rights by Congress or a
state government. The constitutional terms “life, lib-
erty, and property” do not derive their meaning
solely from the provisions of positive law. They
have a normative dimension as well, establishing a
sphere of private autonomy which government is
bound to respect. Quite serious constitutional ques-
tions might be raised if a legislature attempted to
abolish certain categories of common-law rights in
some general way. Indeed, our cases demonstrate
that there are limits on governmental authority to
abolish “core” common-law rights, including rights
8
Of course, as rational basis review does not require that legislation be
the least restrictive means of achieving Congress’s ends, the alternative
remedy would not need to be an equally good substitute for the tort rem-
edy it displaced. See Atmospheric Testing, 820 F.2d at 991 (acknowledg-
ing that “Congress could have . . . [achieved its goal of protecting
independent government contractors from suit] and still provided those
injured by radiation a more generous substitute compensation scheme,”
but concluding that “we cannot say that Congress’[s] choice of means was
without any rational basis.”) (internal quotation marks omitted).
ILETO v. GLOCK 5603
against trespass, at least without a compelling show-
ing of necessity or a provision for a reasonable alter-
native remedy.
PruneYard, 447 U.S. at 93 (Marshall, J., concurring) (footnote
omitted; emphases added). In other words, even though no
one has a protected property interest in any particular rule of
the common law “entitling him to insist that it shall remain
unchanged for his benefit,” White, 243 U.S. at 198, an indi-
vidual does have a weighty property interest in having some
legal means available to redress an injury that would have
been compensable at common law. Justice Marshall’s concur-
rence in PruneYard suggests this interest may be so weighty
as to require not merely a rational relation to a legitimate gov-
ernmental interest, but a “compelling showing of necessity”
— a heightened form of scrutiny. PruneYard, 447 U.S. at 93(Marshall, J., concurring).
C.
I will not venture further into this unsettled constitutional
territory. For purposes of the avoidance canon, it is sufficient
to determine that a serious constitutional question exists, and
the case law I have just canvassed demonstrates that this is so.
Clark, 543 U.S. at 381. The majority disagrees, noting that
“[t]he dissent does not, and cannot, point to a single case in
which we, the Supreme Court, or any sister circuit has held
that a federal statute violates substantive due process for the
reasons asserted by Plaintiffs.” Maj. Op. at 5578. But that is
precisely the point of the constitutional avoidance canon — to
avoid open questions. As I have explained, the Supreme Court
in Duke Power expressly left open the question whether “the
Due Process Clause . . . requires that a legislatively enacted
compensation scheme either duplicate the recovery at com-
mon law or provide a reasonable substitute remedy.” Duke
Power, 438 U.S. at 88. See also PruneYard, 447 U.S. at 93(Marshall, J., concurring) (noting that the question whether
Congress can constitutionally “abolish certain categories of
5604 ILETO v. GLOCK
common-law rights in some general way . . . without a com-
pelling showing of necessity or a provision for a reasonable
alternative remedy” is unresolved). Nor has this Court ever
upheld against constitutional challenge a statute with the same
sweepingly preclusive effect on state tort remedies as the
majority reads the PLCAA to have.9 Precisely because we
have no precedent to follow in resolving Plaintiffs’ substan-
tive due process challenge, we should not do so if we can
avoid it.
I therefore cannot join the majority in rejecting on the mer-
its Plaintiffs’ substantive due process challenge. The applica-
ble case law does not compel the majority’s conclusions that,
applying rational basis review, the PLCAA survives review.
Nor does it foreclose the possibility that a focused form of
rational basis review, taking special account of the retroactiv-
ity feature and the lack of any alternative means of redress, or,
even, heightened scrutiny applies. Reading the PLCAA to
extinguish Plaintiffs’ claims without providing any alternative
scheme for compensation thus raises serious constitutional
questions that neither we nor the Supreme Court have
resolved. I do not know how I would resolve these questions
if they were unavoidably before me, but I am certain that they
are more serious and complex than the majority’s brief treat-
ment suggests.
II.
Given my view of the constitutional issue in this case, I am
constrained to apply the venerable maxim of statutory inter-
pretation prescribing that where ambiguous statutory language
9
The majority asserts that “scores of cases concerning very similar stat-
utes have held that the statutes do not violate substantive due process prin-
ciples,” Maj. Op. at 5579, but it cites to none. As I have shown above,
supra note 4, each of the cases on which the majority relies in rejecting
Plaintiffs’ substantive due process argument involves a statute that is dis-
tinguishable from the PLCAA in some significant respect.
ILETO v. GLOCK 5605
is capable of bearing two or more interpretations, courts
should adopt the interpretation that does not raise a serious
constitutional question “unless such construction is plainly
contrary to the intent of Congress.” DeBartolo, 485 U.S. at
575. See also INS v. St. Cyr, 533 U.S. 289, 299-300 (2001)
(“[I]f an otherwise acceptable construction of a statute would
raise serious constitutional problems, and where an alternative
interpretation of the statute is ‘fairly possible,’ we are obli-
gated to construe the statute to avoid such problems.”) (quot-
ing Crowell v. Benson, 285 U.S. 22, 62 (1932)).
As I explain below, there is such an alternative interpreta-
tion of the PLCAA’s predicate exception: one that would
avoid raising the substantive due process question altogether,
by construing Plaintiffs’ state-law causes of action as arising
under “statute[s] . . . applicable to the sale and manufacture”
of firearms. 15 U.S.C. § 7903(5)(A)(iii). This alternative
interpretation is not only “fairly possible” in light of the stat-
ute’s text and legislative history, see St. Cyr, 533 U.S. at 300(internal citation and quotation marks omitted), but also pref-
erable to the majority’s reading raising the constitutional
questions just outlined.
A.
The PLCAA’s predicate exception creates a carve-out from
the PLCAA’s mandatory dismissal provision for “action[s] in
which a manufacturer or seller of a qualified product know-
ingly violated a State or Federal statute applicable to the sale
or marketing of the product, and the violation was a proxi-
mate cause of the harm for which relief is sought.” 15 U.S.C.
§ 7903(5)(A)(iii).
The ambiguity in this provision derives primarily from its
use of the word “applicable.” As the majority notes, the
phrase “applicable to X” can mean, broadly, “capable of
being applied to X,” or, narrowly, “specifically or even exclu-
sively relevant to X.” Construing other statutes and enact-
5606 ILETO v. GLOCK
ments, courts have read the word “applicable” more broadly
or more narrowly, depending upon contextual clues. See, e.g.,
Fong v. Glover, 197 F.2d 710, 711 (9th Cir. 1952); McGee v.
Peake, 511 F.3d 1352 (Fed. Cir. 2008); Snyder v. Buck, 75 F.
Supp. 902, 907 (D.D.C. 1948), vacated on other grounds, 179
F.2d 466 (D.C. Cir. 1950)). Like the majority, I think case law
construing what Congress meant when it used the word “ap-
plicable” in other statutes unrelated to the PLCAA does little
to illuminate the word’s meaning here. See Fogerty v. Fan-
tasy, Inc., 510 U.S. 517, 522-24 (1994). What is clear, at least,
is that the predicate exception cannot possibly encompass
every statute that might be “capable of being applied” to the
sale or manufacture of firearms; if it did, the exception would
swallow the rule, and no civil lawsuits would ever be subject
to dismissal under the PLCAA. I therefore agree with the
majority that a limiting principle must be found, and that
rather than trying to locate it in the word “applicable” itself,
we must look to the predicate exception’s surrounding words.
In my view, the key to interpreting the predicate exception
is Congress’s use of the word “knowingly.” 15 U.S.C.
§ 7903(5)(A)(iii). Generally speaking, a “knowing” violation
of a given law requires “proof of [the defendant’s] knowledge
of the facts that constitute the offense.” Bryan v. United
States, 524 U.S. 184, 193 (1998); see also Cal. Penal Code
§ 7, para. 5 (stating that for purposes of the California Penal
Code, “[t]he word ‘knowingly’ imports only a knowledge that
the facts exist which bring the act or omission within the pro-
visions of this code. It does not require any knowledge of the
unlawfulness of such act or omission.”). Knowing conduct
thus stands in contrast to negligent conduct, which typically
requires only that the defendant knew or should have known
each of the facts that made his act or omission unlawful and/
or the harm that was likely to occur.10
10
See RESTATEMENT (THIRD) OF TORTS § 3, cmt. g (“To establish the
actor’s negligence, it is not enough that there be a likelihood of harm; the
ILETO v. GLOCK 5607
Neither of the California statutes on which Plaintiffs’ suit
is based requires actual knowledge as a prerequisite for liabil-
ity. The negligence statute, Cal. Civ. Code § 1714(a), requires
as part of the proximate cause analysis that the harm caused
by a defendant’s act or omission be “reasonably foreseeable.”
Lugtu v. Cal. Highway Patrol, 26 Cal. 4th 703, 716 (2001).
A private nuisance under the nuisance statute, Cal. Civ. Code
§§ 3479-80, generally requires a showing that the defendant’s
act caused an “unreasonable invasion of [the plaintiff]’s inter-
est in the free use and enjoyment of [hi]s property.” Hellman
v. La Cumbre Golf & Country Club, 6 Cal. App. 4th 1224,
1230 (1992). This “unreasonableness” factor plays a similar
role to the “foreseeability” factor in the negligence context,
and California courts have recognized that an action for nui-
sance will often require functionally the same showing as an
action for negligence. See El Escorial Owners’ Ass’n v. DLC
Plastering, Inc., 154 Cal. App. 4th 1337, 1349 (2007);
Pamela W. v. Millsom, 25 Cal. App. 4th 950, 954 n.1 (1994);
Lussier v. San Lorenzo Valley Water Dist., 206 Cal. App. 3d
92, 103-04 (1988).
That neither Cal. Civ. Code § 1714 nor Cal. Civ. Code
§§ 3479-80 requires knowing conduct is not the end of the
inquiry. The PLCAA’s predicate exception does not limit its
application to suits for “violations of State or Federal statutes
that require knowing conduct”; rather, it applies to suits for
“knowing[ ] violation[s] [of] . . . State or Federal statute[s].”
15 U.S.C. § 7903(5)(A)(iii). The difference is material: The
PLCAA’s actual knowledge requirement can quite reasonably
be read to create a mental-state overlay, a heightened require-
ment that a plaintiff must meet if his lawsuit is to proceed
likelihood must be foreseeable to the actor at the time of conduct. Fore-
seeability often relates to practical considerations concerning the actor’s
ability to anticipate future events or to understand dangerous conditions
that already exist. In such cases, what is foreseeable concerns what the
actor ‘should have known.’ ”).
5608 ILETO v. GLOCK
under the new PLCAA regime, regardless of whether the
underlying statute requires such a mens rea.11
Plaintiffs here allege that Defendants knowingly committed
a range of acts in violation of California negligence and nui-
sance law. Specifically, they allege that “Defendants . . .
knowingly participate in and facilitate the secondary market
where persons who are illegal purchasers[, including Furrow,]
. . . obtain their firearms,” First Amended Complaint (“FAC”)
¶ 31 (emphasis added), and that “Defendant[s] . . . select and
develop distribution channels that they know regularly pro-
vide guns to criminals and underage end users . . . [and,
despite information from government crime trace reports,]
knowingly supply a range of disreputable distributors, dealers,
gun shops, pawnshops, gun shows, and telemarketers in the
State of California . . . .” Id. ¶ 32 (emphases added).12 Plain-
11
I note, in addition, that Congress’s use of the word “violation” does
not necessarily suggest a distinction between common-law-based duties
and legislatively-imposed duties. Cf. Riegel v. Medtronic, Inc., 128 S.Ct.
999, 1008 (2008) (“Congress is entitled to know what meaning this Court
will assign to terms regularly used in its enactments. Absent other indica-
tion, reference to a State’s [‘]requirements[’] includes its common-law
duties. . . . [C]ommon-law liability is premised on the existence of a legal
duty, and a tort judgment therefore establishes that the defendant has vio-
lated a state-law obligation.”) (emphasis added); Medtronic, Inc. v. Lohr,
518 U.S. 470, 486, 495 (1996) (plurality opinion) (holding that § 360k of
the Medical Device Amendments, which preempts “any requirement (1)
which is different from, or in addition to, any requirement applicable
under this chapter to the device,” does not “den[y] Florida the right to pro-
vide a traditional damages remedy for violations of common-law duties
when those duties parallel federal requirements.”) (emphasis added).
12
Further, Plaintiffs’ complaint alleges that “the easy availability of fire-
arms for criminal purposes is a direct, known result of [D]efendants’ mar-
keting and distribution policies and practices.” FAC ¶ 58 (emphasis
added). Although the Bureau of Alcohol, Tobacco and Firearms has “re-
ported . . . that . . . about 1% [of dealers nationwide] account for over half
of the successfully traced guns used in crime,” id. ¶ 49, and although ATF
regularly forwards Defendants crime-trace data on particular distributors
and dealers, Defendants “choose not to use the data . . . to change their
ILETO v. GLOCK 5609
tiffs also allege that Defendants intentionally flood police
departments with frequent waves of upgrades, enabling
Defendants to resell police departments’ retired models on the
secondary market. And Plaintiffs allege that “Defendants have
full knowledge that their policies and practices will and regu-
larly do result in substantially increased levels of firearms use
in crime . . . in California, and that their conduct . . . [unrea-
sonably] interferes with the public safety, health or peace
. . . .” Id. ¶ 126-29 (emphasis added).
With their allegations, Plaintiffs are not imputing vicarious
liability to Defendants for Furrow’s unlawful acts. Rather,
they are alleging that Defendants themselves knowingly
engaged in unlawful conduct: dangerous distribution and mar-
keting practices, and the knowing maintenance of a nuisance.
And while the majority is correct that Furrow’s shooting was
the last link in the causal chain that occasioned Plaintiffs’ suit,
see Maj. Op. at 5554 n.1, the violations of law for which
Plaintiffs seek redress as against Defendants Glock and RSR
are separate from the violations of law that Furrow himself
committed. In other words, Plaintiffs advance a theory of
direct liability, not vicarious liability, against Defendants.
Their cause of action is premised on the allegation that Defen-
dants’ own wrongful conduct proximately caused them harm.13
marketing and distribution practices to reduce the foreseeable risk that
their firearms will become possessed by prohibited persons.” Id. ¶ 66
(emphasis added). Further, Plaintiffs allege, Defendant manufacturers
choose not to train their dealers, id. ¶ 77, or to cut off contracts with dis-
tributors who sell to dealers with disproportionately high sale-to-crime
rates. Id. ¶ 72. Defendants also allegedly market their products to appeal
to prospective purchasers with criminal intent, emphasizing characteristics
such as easy concealability and rapid fire capability. Id. ¶ 81-88.
13
In this respect, the case law concerning suits against municipalities
under 42 U.S.C. § 1983 may provide a useful analogy, as it throws the dis-
tinction between direct liability and respondeat superior — a type of vicar-
ious liability — into sharper relief. Under Monell v. Dep’t of Soc. Servs.,
436 U.S. 658 (1978), “a municipality cannot be held liable solely because
5610 ILETO v. GLOCK
One could quarrel with Plaintiffs’ theory of causation, to be
sure, and perhaps they would lose on summary judgment or
at trial. But this Court determined on a prior appeal that Plain-
tiffs have properly stated violations of California law (includ-
ing satisfying the statutes’ requirement of proximate cause)
for purposes of surviving a motion to dismiss, see Ileto v.
Glock, 349 F.3d 1191, 1194 (9th Cir. 2003), and that holding
is the law of the case. Maj. Op. at 5558 & n.2. The question
now before us is whether, assuming that Plaintiffs have stated
violations of California law, they have also alleged sufficient
facts to come within the PLCAA’s predicate exception and
avoid its mandatory dismissal requirement.
At the time Plaintiffs’ complaint was originally filed, the
PLCAA had not yet been enacted. So, by alleging that Defen-
dants had actual knowledge of the impact of their intentional
actions rather than that the impact was reasonably foresee-
it employs a tortfeasor — or, in other words, a municipality cannot be held
liable under § 1983 on a respondeat superior theory.” Id. at 691. But,
Monell held, a municipality can be held directly liable for a violation of
the Constitution or a federal law under § 1983 if its own “policy or custom
. . . inflicts the injury[.]” Id. at 694. Later cases have clarified that a
municipality will be liable for a policy of inadequate training or supervi-
sion of police officers only if the policy “reflects a ‘deliberate’ or ‘con-
scious’ choice by a municipality” not to avoid the risk of harm. City of
Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989).
Suppose, for example, that a municipality maintains a policy of hiring
police officers without running criminal background checks on them or
providing firearms training, and that it knows several of its officers have
committed violent crimes in the course of duty in the past. If a police offi-
cer hired and retained under this policy then shoots and kills a group of
innocent bystanders, the municipality would not be liable to the victims
for the shooting on a respondeat superior theory, but it would be directly
liable for its own wrongful act: maintaining a policy of inadequate screen-
ing and supervision with “deliberate indifference” to the risk of harm that
policy created. See Bd. of County Commissioners of Bryan County, Okla-
homa v. Brown, 520 U.S. 397 (1997). The violations are distinct, even
though the same act — the shooting — occasions the victim’s suit.
ILETO v. GLOCK 5611
able, Plaintiffs put forward more than they needed to state a
claim under the California statutes.14 When Congress passed
the PLCAA in 2005, though, it effectively raised the bar con-
cerning what Plaintiffs must allege to avoid a motion to dis-
miss. As a result, even when the underlying state statute does
not itself require “knowing” action, plaintiffs must now allege
and, ultimately, prove such actions to survive PLCAA preemp-
tion.15
In short, Plaintiffs have presciently undertaken to prove
that Defendants knew the impact of their actions and under-
took them anyway, even though the underlying state statutes
require only that Defendants should have known, and not that
they actually knew, the impact of their actions. Because Plain-
tiffs have adequately and specifically pleaded actual knowl-
edge, they have shown “knowing[ ] violat[ions]” of the
14
I note, in this respect, that California courts do recognize “an aggra-
vated form of negligence,” sometimes called “willful misconduct,” for
which the “pleading requirements are similar to negligence but stricter”:
A plaintiff must show “(1) actual or constructive knowledge of the peril
to be apprehended, (2) actual or constructive knowledge that injury is a
probable, as opposed to a possible, result of the danger, and (3) conscious
failure to act to avoid the peril.” Berkley v. Dowds, 152 Cal. App. 4th 518,
526-28 (2007) (internal alterations, quotation marks, and citations omit-
ted). The PLCAA, on my reading, would require something slightly more
onerous: a showing of actual, not constructive, knowledge of all the ele-
ments that establish a violation of law.
15
When Congress is acting in an area over which it has constitutionally
delegated authority, there is nothing particularly unusual about a federal
statute adding to the proof burdens that would be applicable under state
law. See, e.g., Gorman v. Wolpoff & Abrahamson, LLP, 552 F.3d 1008,
1025-27 (9th Cir. 2009) (holding that the Fair Credit Reporting Act per-
mits state defamation claims to avoid preemption, if at all, only if plain-
tiffs plead and prove “malice or willful intent,” a mens rea not inherent in
most state defamation actions); 800 Adept, Inc. v. Murex Securities, Ltd.,
539 F.3d 1354, 1369 (Fed. Cir. 2008) (“State tort claims against a patent
holder, including tortious interference claims, based on enforcing a patent
in the marketplace, are ‘preempted’ by federal patent laws, unless the
claimant can show that the patent holder acted in ‘bad faith’ in the publi-
cation or enforcement of its patent.”).
5612 ILETO v. GLOCK
California statutes that form the basis for their suit. 15 U.S.C.
7903(5)(A)(iii).
Understanding the phrase “knowingly violated” as impos-
ing a heightened pleading requirement for litigants who seek
to come within the predicate exception thus gives sense and
structure to an otherwise ambiguous provision. 15 U.S.C.
7903(5)(A)(iii). Having located the predicate exception’s lim-
iting factor, it makes sense to read the term “applicable”
broadly, encompassing statutes that are “capable of being
applied” to the sale or marketing of firearms, as Cal. Civ.
Code §§ 1719 and 3479-80 certainly are.
B.
My interpretation of the predicate exception is fully consis-
tent with surrounding provisions of the PLCAA’s text. Unlike
the majority, I read the PLCAA’s text as strongly supporting
the view that the Act’s purpose is to protect firearms manu-
facturers and sellers from liability for acts solely those of third
parties.
First, according to the PLCAA’s “Purposes” section, the
purpose of the Act is “[t]o prohibit causes of action against
manufacturers [and sellers] . . . for the harm solely caused by
the criminal or unlawful misuse of firearm products or ammu-
nition products by others.” 15 U.S.C. § 7901(b)(1) (emphasis
added). The majority ignores Congress’s use of the word
“solely,” reading this provision to suggest that Congress’s
intention was “to preempt common-law claims, such as gen-
eral tort theories of liability.” Maj. Op. at 5564. I disagree.
The purpose articulated at § 7901(b)(1) is, by its own terms,
not to reject tort theories of liability in general, but rather to
prevent claims alleging strict or vicarious liability.
Indeed, the PLCAA repeatedly describes the sorts of law-
suits with which Congress was concerned as lawsuits based
particularly on vicarious liability theories. See 15 U.S.C.
ILETO v. GLOCK 5613
§§ 7901(a)(3) (“harm caused by the misuse of firearms by
third parties”); 7901(a)(5) (“harm caused by those who crimi-
nally or unlawfully misuse firearm products or ammunition
products that function as designed and intended”); 7901(a)(6)
(“harm that is solely caused by others”). Reading the predi-
cate exception to encompass only lawsuits alleging that defen-
dants themselves knowingly engaged in unlawful conduct is
fully consistent with this purpose, as such a reading would
preclude the filing of suits that allege liability arising solely
out of acts taken by third parties which the defendants failed
to correct or prevent.
Second, the majority notes that the PLCAA elsewhere
speaks of “Federal, State, and local laws” that “heavily regu-
late[ ]” the manufacture and sale of firearms, 15 U.S.C.
§ 7901(a)(4), and it concludes that Congress likely had only
this narrow subset of laws (apparently, firearm-specific laws
and regulations) in mind when drafting the predicate excep-
tion as well. Maj. Op. at 5566. I draw precisely the opposite
conclusion from Congress’s choice of language in
§ 7901(a)(4). That subsection speaks of “Federal, State, and
local laws” (not “statutes”) that “heavily regulate[ ]” (rather
than “apply to”) firearms. Id. § 7901(a)(4) (emphases added).
If Congress had intended the predicate exception to reach
only those statutes specifically regulating the sale or market-
ing of firearms, to which it appears § 7901(a)(4) refers, surely
the more straightforward way to do so would be to mirror the
language of § 7901(a)(4) more closely. See Boise Cascade
Corp. v. United States Envtl. Prot. Agency, 942 F.2d 1427,
1432 (9th Cir.1991) (“[W]e presume that words used more
than once in the same statute have the same meaning.”).
Instead, Congress chose to use the broader phrase “State or
Federal statute[s] applicable to the sale or marketing of [fire-
arms]” in the predicate exception. Id. § 7903(5)(A)(iii). If any
inference can be drawn from this difference in language, it is
not that § 7901(a)(4) and § 7903(5)(A)(iii) should be read as
coterminous, as the majority suggests, but that they should be
read differently. See Tang v. Reno, 77 F.3d 1194, 1197 (9th
5614 ILETO v. GLOCK
Cir. 1996) (“[W]here Congress includes particular language in
one section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts inten-
tionally and purposely in the disparate inclusion or exclu-
sion.”).
Third, the majority states that “Congress’[s] intention to
create national uniformity” — an intention to which the
PLCAA adverts only indirectly, in the “Purposes” section at
15 U.S.C. § 7901(b)(4) (“[t]o prevent . . . unreasonable bur-
dens on interstate . . . commerce”) — is incompatible with a
reading of the predicate exception that would allow Plaintiffs’
claims to survive. Maj. Op. at 5566. I disagree here as well.
Reading the predicate exception to impose an actual knowl-
edge requirement on litigants does create a nationally uniform
baseline standard of liability. At the same time, this reading
also accommodates another of the PLCAA’s stated purposes
— “preserv[ing] and protect[ing] the important principles of
federalism [and] State sovereignty,” 15 U.S.C. § 7901(b)(6)
— by allowing the continued enforcement of state laws that,
like California’s, reflect the considered policy choices of the
legislature. It is worth noting, in this regard, that the Califor-
nia Penal Code specifically states that the unlawful possession
of a firearm is a nuisance. See Cal. Penal Code § 12028(b).
And several years after Defendants committed the acts alleged
in Plaintiffs’ complaint, the California legislature amended
the negligence statute to specify that “[t]he design, distribu-
tion, or marketing of firearms and ammunition is not exempt
from the duty to use ordinary care and skill that is required by
this section.” Cal. Civ. Code § 1714(a); see also A.B. 496,
2002 Cal. Legis. Serv. 906 (West) (2002).
I therefore conclude that the PLCAA’s text is fully consis-
tent with the reading of the predicate exception I have sug-
gested: that “statute[s] applicable to the sale or marketing of
[firearms]” includes any statutes capable of being applied to
the sale or marketing of firearms, but that to proceed under
the exception, litigants must allege that defendants “know-
ILETO v. GLOCK 5615
ingly violated” those statutes. 15 U.S.C. § 7903(5)(A)(iii). Far
from “ignor[ing] the text and purpose of [the] statute,” see
Maj. Op. at 5568 n.8 (quoting Boumediene v. Bush, 128 S. Ct.
2229, 2271 (2008)), I think this to be an entirely fair reading
of the PLCAA.
C.
DeBartolo counsels that courts employing the canon of
constitutional avoidance look not only to the statutory text,
but also to the legislative history, to ensure that their reading
of the statute is not contrary to Congress’s clear intent.
DeBartolo, 485 U.S. at 583-84; see also Catholic Bishop, 440
U.S. at 504. Unlike the majority, I read the PLCAA’s legisla-
tive history not to foreclose the reading I suggest here, but
rather in large part to support it.
Senator Sessions, one of the bill’s leading supporters, stated
that “[t]his bill is incredibly narrow. It only forbids lawsuits
brought against lawful manufacturers and sellers of firearms
or ammunition if the suits are based on criminal or unlawful
misuse of the product by a third party.” 151 Cong. Rec. S8908
(July 26, 2005) (statement of Sen. Sessions). Reading through
the legislative history, it becomes clear that like Senator Ses-
sions, the bill’s supporters broadly understood that the
PLCAA would not do away with all tort liability, but rather
that it would (1) limit firearms manufacturers or sellers’ tort
liability to their own conduct, not the conduct of third parties
(thus imposing a narrow view of foreseeability and proximate
cause), and (2) impose an extra “knowledge” requirement on
state-defined duties of care.16 The bill was viewed essentially
16
See, e.g., 151 Cong. Rec. S9088 (July 27, 2005) (statement of Sen.
Craig) (“[This bill] does not prevent [gun manufacturers and sellers] from
being sued for their own misconduct. This bill only stops one extremely
narrow category of lawsuits[:] lawsuits that attempt to force the gun indus-
try to pay for the crimes of third parties over whom they have no control.
We have tried to make that limitation as clear as we possibly can . . . .”);
5616 ILETO v. GLOCK
as a tort-reform measure, aimed at restraining the supposed
expansion of tort liability beyond its “traditional[ ]” bounda-
ries, 151 Cong. Rec. S8910 (July 26, 2005) (statement of Sen.
Sessions), particularly by “activist judge[s]” and municipali-
ties suing the gun industry on public nuisance and strict liabil-
ity theories. Id. at S8911.17 Suits for the wrongful acts of
id. (statement of Sen. Craig) (“This bill responds to a series of lawsuits
filed primarily by municipalities to shift the financial burden for criminal
violence onto the law-abiding business community. These suits are based
on a variety of legal theories. . . . seeking to hold gun manufacturers and
sellers liable for the cost of injuries caused by people over whom they
have no control — criminals who choose to use firearms illegally.”); id.at S9089 (statement of Sen. Craig) (“This is not a gun industry immunity
bill. It prohibits one kind of lawsuit[:] a suit trying to fix the blame of a
third party’s criminal acts or misdeeds on the manufacturer or the seller
of the firearm used in that crime.”); 151 Cong. Rec. S8908-11 (July 26,
2005) (statement of Sen. Sessions) (“Manufacturers and sellers are still
responsible for their own negligent or criminal conduct . . . .” ); id. (“It
is simply wrong . . . to allow those manufacturers who comply with the
many rules we have set forth . . . to be sued for intervening criminal acts
. . . . [But] [i]f they knew, if they had reason to know, if they were negli-
gent in going through the requirements of the law or failed to do the
requirements of the law, they can [still] be sued [despite the PLCAA]”);
id. at S8911 (statement of Sen. Sessions) (“Plaintiffs can go to court if the
gun dealers do not follow the law, if they negligently sell the gun, if they
produce a product that is improper or they sell to someone they know
should not be sold to or did not follow steps to determine whether the indi-
vidual was [eligible] to buy[ ] a gun.”); 151 Cong. Rec. S9226 (July 28,
2005) (statement of Sen. Graham) (“What . . . [this bill will prohibit are
suits that seek] under a gross negligence or simple negligence standard
[to] create a duty on the part of sellers and manufacturers for an event that
they can’t control which is the intentional misuse of a weapon to commit
a crime . . . .” ).
17
See 151 Cong. Rec. S9088 (July 27, 2005) (statement of Sen. Craig)
(“This bill responds to a series of lawsuits filed primarily by municipali-
ties to shift the financial burden for criminal violence onto the law-abiding
business community.”); id. at S9088-89 (statement of Sen. Craig) (charac-
terizing the “junk lawsuits” that the PLCAA would prohibit as threatening
to “reverse a longstanding legal principle in this country . . . that manufac-
turers of products are not responsible for the criminal misuse of those
ILETO v. GLOCK 5617
firearms manufacturers and sellers themselves were not the
focus of the dismissal provision.
I recognize, of course, that individual legislators at times
suggested divergent views of what sorts of lawsuits the
PLCAA would affect if it were passed into law.18 Some of
those views appear perhaps implausibly narrow or implausi-
bly broad, likely because the bill excited strong emotions
products”); 151 Cong. Rec. S9378 (statement of Sen. Sessions) (“We
ha[ve] a group of activist, anti-gun litigators who sometimes buddy up
with a city or mayor somewhere — usually a big city — and try to conjure
up some way to make a legitimate manufacturer of a firearm liable for
intervening acts of criminals and murderers. That has never been the prin-
ciple of American law, but it is a reality that is occurring today and it
threatens an industry that supplies our military with weapons.”).
Relatively little of the debates focused on tort suits brought by injured
individuals, as opposed to municipalities. But see 151 Cong. Rec. S9386
(July 29, 2005) (statement of Sen. Reed) (advocating an amendment,
which ultimately failed, that would have “preserve[d] the right of an indi-
vidual to sue for negligence when they have been harmed and when that
negligence can fairly be attributed to a gun manufacturer . . . [or] dealer
. . . . [I]f we are confronted with this legislation, I propose we step back
and perhaps reluctantly eliminate suits by municipalities, but for goodness
sakes, we can have and maintain suits by individuals . . . . At a minimum,
we have to allow the tort law of the various States . . . to be operative
. . . .” ); id. at S9389 (July 29, 2005) (statement of Sen. Allen) (supporting
the bill as written, and stating that “[t]his legislation does carefully pre-
serve the right of individuals to have their day in court with civil liability
actions for injury or danger caused by negligence on the firearms dealer
or manufacturer[’s part] or defective product . . . .” ).
18
Compare 151 Cong. Rec. S9226 (July 28, 2005) (statement of Sen.
Kyl) (supporting the bill and opposing an amendment that would have
expressly permitted suits alleging gross negligence or recklessness to go
forward; arguing that the bill as written already would allow suits alleging
“gross negligence or reckless conduct . . . [as] the proximate cause of
death or injury”), and 151 Cong. Rec. S9926 (July 25, 2005) (statement
of Sen. Graham) (same), with 151 Cong. Rec. S9385 (July 29, 2005)
(statement of Sen. Schumer) (opposing the bill as written, and arguing that
“[e]ven when somebody is grossly negligent . . . they will” be immune
from suit), and id. at S9380 (statement of Sen. Kennedy) (same).
5618 ILETO v. GLOCK
from both its supporters and its opponents. As courts have
long cautioned, however, the statements of single lawmakers
do not establish congressional intent. Thompson v. Calderon,
151 F.3d 918, 928-29 (9th Cir. 1998) (“[I]ndividual senators
do not make laws; majorities of the House and Senate do.”);
see also Chrysler Corp. v. Brown, 441 U.S. 281, 311 (1979).
That is why committee reports are more persuasive indicators
of “the considered and collective understanding of those Con-
gressmen involved in drafting and studying proposed legisla-
tion.” Garcia v. United States, 469 U.S. 70, 76 (1984)
(internal quotation marks omitted); see also Gen. Elec. Co. v.
EPA, 360 F.3d 188, 193-94 (D.C. Cir. 2004) (the broad read-
ing of an ambiguous statutory preemption provision put for-
ward in the “floor statement by a single senator” is “hardly
persuasive evidence of congressional intent” in the face of
committee reports that read the provision more narrowly).
Here, the House Judiciary Committee Report confirms the
picture that emerges from the legislative history as a whole —
that the PLCAA was intended to preclude the imposition of
strict or vicarious liability on the gun industry for the criminal
actions of third parties. The House Report describes the bill
as aimed at combating a trend of “[r]ecent litigation . . .
against the firearms industry . . . based on novel claims that
invite courts to dramatically break from bedrock principles of
tort law,” H.R. REP. NO. 109-124, at 11 (2005), and to hold
firearms manufacturers and sellers “liable for the injuries
caused by the criminal action of third parties.” Id. at 6.19
19
Like the floor debates, much of the House Report focuses on the per-
ceived need to curtail lawsuits brought by municipalities, rather than those
brought by individuals. See id. at 18 (describing municipal plaintiffs as
attempting to “regulate firearms whereas only the State had the power to
regulate in this area”); id. at 13 (“The various public entities that have
brought suit against the gun industry in recent years have raised novel
claims that seek reimbursement of government expenses — including
costs for police protection, emergency and medical services, and pension
benefits — associated with gun-related crimes.”). (No Senate Report was
published.)
ILETO v. GLOCK 5619
Reading the predicate exception as preserving causes of
action for injuries caused by gun manufacturers and sellers’
own knowingly unlawful conduct is fully consistent with that
view.
The majority correctly points out that both Senator Craig
and Representative Stearns listed Ileto v. Glock among the
lawsuits that they expected the PLCAA would preempt. See
Maj. Op. at 5567-68. But there is no indication in their
descriptions of the case that these lawmakers actually under-
stood what Plaintiffs were alleging in this case: that Defen-
dants themselves knowingly committed unlawful acts. Quite
the contrary, Senator Craig and Representative Stearns’s
remarks suggest that they believed Ileto was purely a vicari-
ous liability suit.20 Whatever effect these two lawmakers
thought the PLCAA would have on Plaintiffs’ suit, their
apparently ill-informed projections do not amount to “clear
congressional intent” to enact a law that would immunize fire-
arms manufacturers and sellers from tort liability for even
their own knowing unlawful acts. DeBartolo, 485 U.S. at 574.
D.
Applying the PLCAA’s predicate exception as written —
that is, as applying to all statutes capable of being applied to
the sale or marketing of firearms, but imposing an actual
20
See 151 Cong. Rec. S9394 (July 29, 2005) (statement of Sen. Craig)
(“Another example of a lawsuit captured by this bill is the case of Ileto
v. Glock . . . . The United States Ninth Circuit Court of Appeals said Glock
and RSR could be sued for a criminal shooting when Glock sold the pistol
to a Washington State police department and the distributor RSR never
owned, nor sold, nor possessed the firearm.”); 151 Cong. Rec. E2163
(Oct. 25, 2005) (statement of Rep. Stearns) (extensions of remarks)
(“Another example is the case of Ileto v. Glock . . . . The facts, if you can
believe it, are that the manufacturer, Glock, sold the pistol later criminally
misused, to a Washington State police department and the distributor
being sued never owned, sold, nor possessed the firearm that was crimi-
nally misused.”).
5620 ILETO v. GLOCK
knowledge requirement — would prohibit a swath of lawsuits
against firearms manufacturers and sellers, including those
brought by municipalities for violations of no-fault or abso-
lute liability statutes or those brought by individuals alleging
vicarious liability under state tort law for the conduct of third
parties of which the gun manufacturers or sellers were not
aware.
It may well be that the PLCAA’s application to these other
state actions would be constitutionally problematic for the
same reasons outlined in Part II above. The reading of the
predicate exception’s ambiguous language I have suggested
might simply delay those hard constitutional questions for
another case. But that is, ultimately, what the canon of consti-
tutional avoidance is meant to do.21 The legislation or the con-
stitutional law could change in the meantime, or no concrete
case could arise in which the constitutional issue needs to be
addressed. The reading I have suggested here would resolve
the case in front of us, allowing Plaintiffs’ suit to go forward
and leaving the constitutional issue for another day, should
that day arise.
CONCLUSION
I would hold that the PLCAA does not require the dismissal
of Plaintiffs’ suit, and not decide the difficult questions of
constitutional law that the statute would otherwise raise. I
therefore respectfully dissent.
21
The majority asserts that the “point” of the constitutional avoidance
canon “is to adopt an alternative interpretation of the statute that avoids
any constitutional problem.” Maj. Op. at 5579 n.12 (emphasis added). But
surely, that is not so. The point, rather, is avoid constitutional questions
actually raised by a given case. Whatever constitutional problems might
be raised in other cases — or even in this one at a later stage in the litiga-
tion, if Plaintiffs were unable to prove the knowing conduct they have
pleaded and could show only negligence — are not before us today, and
cannot guide our choice between two plausible readings of the statute
when one would raise a serious constitutional question in this case.