Appeals from the Superior Court of the District of Columbia (CA-428-00) (Hon. Brook Hedge, Trial Judge).
The opinion of the court was delivered by: Farrell, Associate Judge
Before FARRELL, REID, and GLICKMAN, Associate Judges.
This appeal presents two primary issues: Does the Protection of Lawful Commerce in Arms Act ("the PLCAA"), 15 U.S.C. §§ 7901 et seq. (2005), by its terms require dismissal of the plaintiff/appellants' suit under the District of Columbia's Assault Weapons Manufacturing Strict Liability Act of 1990, D.C. Code § 7-2551.01 et seq. (2001) ("the SLA"); and, if so, does the PLCAA as applied to the plaintiffs' pending claims under the SLA violate separation of powers principles or due process principles embodied in the Fifth Amendment, or constitute a "taking" under the Fifth Amendment for which "just compensation" must be paid. We answer the first question yes, the second question no, and affirm the dismissal of the plaintiffs' suit.
This litigation began when the individual plaintiffs and the District of Columbia (hereafter collectively "the plaintiffs") sued the defendants, various gun manufacturers, importers, or distributors of firearms, alleging negligence, creation of a public nuisance, and liability under the SLA.*fn1 This court in District of Columbia v. Beretta, 872 A.2d 633 (D.C. 2005) (en banc) (Beretta I), upheld the trial court's dismissal of the negligence and public nuisance claims but reversed the dismissal of the SLA claim, allowing the individual plaintiffs to "advance to discovery on strict liability notwithstanding the difficulties of proof they may confront," and similarly permitting the District government to proceed on that claim "to the extent . . . that it seeks subrogated damages as to named individual plaintiffs for whom it has incurred medical expenses." Id. at 637.
Subsequently, however, Congress enacted the PLCAA, key purposes of which (as stated in 15 U.S.C. § 7901 (b)), were to:
(1) . . . prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended. . . . [and]
* * * * (4) . . . prevent the use of such lawsuits to impose unreasonable burdens on interstate and foreign commerce.
The PLCAA provides that a "qualified civil liability action may not be brought in any Federal or State court," id. § 7902 (a), and that a "qualified civil liability action that is pending on October 26, 2005 [the date of enactment], shall be immediately dismissed by the court in which the action was brought or is currently pending." Id. § 7902 (b). A "qualified civil liability action" is defined as:
a civil action or proceeding or an administrative proceeding brought by any person against a manufacturer or seller of a qualified product,*fn2 or a trade association, for damages, punitive damages, injunctive 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 . . . .
However, not every civil action against a manufacturer or seller of firearms is barred by the PLCAA. Specifically, as relevant here, a qualified civil liability action "shall not include":
(iii) an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal 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 qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified 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 prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of section 922 of Title 18.
Id. § 7903 (5)(A)(iii). The parties here, and other courts construing this language, have referred to subsection (5)(A)(iii) as the "predicate exception" to the PLCAA because, to take effect, it requires that the manufacturer or seller have committed an underlying (or predicate) statutory violation. We will identify it that way also.
Following enactment of the PLCAA, the defendants here moved to dismiss the SLA claim, and on May 22, 2006, Judge Brook Hedge granted the motion in a memorandum opinion and order. She concluded, first, that because the SLA "is a state statute*fn3 that applies specifically and exclusively to the firearms industry," causes of action under the SLA would, "under a literal interpretation of the predicate exception, . . . seem to be excluded from the PLCAA's definition of a 'qualified civil liability action.'" Nevertheless, the judge applied principles of statutory construction to consider whether, "[w]hen taken as a whole and in the context of the purpose of the PLCAA, . . . the predicate exception was meant to include any state statute that applies to a result of the sale or manufacture of firearms, or [instead] whether it was meant to include only those state statutes that apply to the manner in which firearms are marketed or sold" (emphasis in original). Performing this inquiry, in particular after applying the doctrine of ejusdem generis ("where specific words follow general words, the application of the general term is restricted to things . . . similar to those specifically enumerated," citing 2A N. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 47.17 (5th ed. 1992)), the court reasoned that "the specific cases given as examples in the predicate exception are clearly those involving violations of statutes regulating the manner in which firearms are sold or marketed," and that, accordingly, "the state statutes . . . mentioned in the general part of the predicate exception are limited to [those] regulating the manner in which firearms are sold or marketed, and not statutes that are merely capable of being applied to the result of the sale or marketing of firearms." Any other interpretation, the judge believed, would "lead to a result . . . plainly at variance with the [PLCAA] as a whole." Thus, because the SLA by its terms is not a statute regulating how - the manner in which - firearms are marketed, it "imposes the type of liability . . . Congress has attempted to prohibit by . . . the PLCAA," and the plaintiffs had failed to bring their cause of action within the predicate exception.
The judge further rejected the plaintiffs' arguments for unconstitutionality of the PLCAA as applied. First, although the PLCAA directs the "immediate dismiss[al]" by courts of any "qualified civil liability action" still pending, it does not violate the separation of powers and specifically "the rule stated in United States v. Klein, 80 U.S. (13 Wall.) 128 (1871)," because the statute "works to provide a new legal standard for courts to apply" - it "defines a new class of civil actions" - and, rather than dictating the judgment in a case, leaves to the courts the "determination as to whether particular cases satisfy that new legal standard or its exceptions." Nor does the statute deprive claimants whose cause of action has accrued under the SLA of due process of law, the judge ruled, because "[a] typical tort cause of action, whether based in statute or in the common law, . . . 'is inchoate and affords no definite or enforceable property right until reduced to final judgment'" (citation omitted); and it therefore may be limited or eliminated by legislation such as ...