District of Columbia v. Beretta, No. 03-CV-24, 03-CV-38.

• Citation: 847 A.2d 1127
• Decision Date: 29 April 2004
• Docket Number: No. 03-CV-24, 03-CV-38.
• Parties: DISTRICT OF COLUMBIA, Appellant, v. BERETTA, U.S.A., CORP., et al., Appellees. Bryant LAWSON, et al., Appellants, v. BERETTA, U.S.A., CORP., et al., Appellees.
• Court: Court of Appeals of Columbia District

847 A.2d 1127

DISTRICT OF COLUMBIA, Appellant, v. BERETTA, U.S.A., CORP., et al., Appellees.

Bryant LAWSON, et al., Appellants, v. BERETTA, U.S.A., CORP., et al., Appellees.

No. 03-CV-24, 03-CV-38.

District of Columbia Court of Appeals.

Argued March 2, 2004.

Decided April 29, 2004.

James C. McKay, Jr., Senior Assistant Corporation Counsel, with whom Robert J. Spagnoletti, Corporation Counsel, Charles L. Reischel, Deputy Corporation Counsel at the time the brief was filed, and Edward E. Schwab, Acting Deputy Corporation Counsel at the time of argument, were on the brief, for appellant in No. 03-CV-24.

David S. Molot, Washington, with whom A. Stephen Hut, Jr., John Payton, Eric J. Mogilnicki, R. Kevin Bailey, Karen C. Daly, Roderick V.O. Boggs, Lois G. Williams, and Susan E. Huhta were on the brief, for appellants in No. 03-CV-38.

Thomas E. Fennell and Lawrence S. Greenwald, with whom Michael L. Rice, James A. Wilderotter, Paul R. Reichert, Lawrence P. Fletcher-Hill, Catherine A. Bledsoe, Robert E. Scott, Jr., Lauren Lacey, William M. Griffin, III, Jonann E. Coniglio, Paul F. Strain, M. King Hill, III, James P. Dorr, Sarah L. Olson, John F. Renzulli, Leonard Rosenbaum, Charles L. Coleman, III, Warwick R. Furr, II, Michael C. Hewitt, Michael J. Zomcik, Robert C. Tarics, Michael Branisa, Gerald F. Ivey, Amanda L. Rixse, Timothy A. Bumann, Paul Schleifman, Jeffrey S. Nelson, and Tina Schaefer were on the brief, for appellees.

Dennis A. Henigan and Brian J. Siebel, Washington, filed a brief as amicus curiae on behalf of the Brady Campaign to Prevent Gun Violence.

Roy T. Englert, Jr., Alan E. Untereiner, Jan S. Amundson, and Quentin Riegel filed a brief as amicus curiae on behalf of the National Association of Manufacturers.

James M. Beck, Frank J. Eisenhart, J. Gregory Dyer and Hugh F. Young, Jr., filed a brief as amicus curiae on behalf of the Product Liability Advisory Council, Inc.

Before TERRY and FARRELL, Associate Judges, and PRYOR, Senior Judge.

FARRELL, Associate Judge:

The District of Columbia and nine individual plaintiffs appeal from the dismissal of their suit against manufacturers or distributors of firearms alleging negligent distribution, public nuisance, and strict liability under D.C.Code § 7-2551.02 (2001). In a comprehensive written opinion, the trial judge entered judgment on the pleadings for the defendants on all counts, ruling in substance that the counts of negligence and public nuisance failed basic tests of duty, foreseeability, and remoteness as pleaded; that the District of Columbia could not bring an action under § 7-2551.02; and that, as to the individual plaintiffs, the statutory tort was insufficiently pleaded and, in any event, is an unconstitutional exercise of extra-territorial regulation by the Council of the District of Columbia.

We reverse the dismissal of the statutory count as to the individual plaintiffs, holding that they may advance to discovery on strict liability notwithstanding the difficulties of proof they may confront. We also reverse the dismissal of that count as to the District of Columbia to the extent—but only the extent—that it seeks subrogated damages as to named individual plaintiffs for whom it has incurred medical expenses. Otherwise we sustain the judgment of the trial court, holding that none of the plaintiffs has stated a valid claim of common-law negligence and the District has not stated a claim of public nuisance on the facts alleged.

I. Background

This is the second time in the District of Columbia that an actionable link has been attempted to be drawn between the manufacture or distribution of firearms and the criminal use of those weapons to kill or injure. See Delahanty v. Hinckley, 564 A.2d 758 (D.C.1989)

(on certified question from federal court, finding no basis on facts alleged for holding gun manufacturers and their officers liable under D.C. law for criminal use of gun by John W. Hinckley, Jr.). The plaintiffs in the present case are the District of Columbia government and nine individual persons who themselves were wounded or represent decedents who were shot and killed by persons unlawfully using firearms in the District of Columbia.¹ The defendants are numerous manufacturers, importers, or distributors of firearms. Underlying all three counts of the complaint are allegations that may be summarized as follows: Although the District of Columbia itself has stringent gun control laws, there nonetheless exists an unchecked illegal flow of firearms into the District to which the defendants by action and inaction have contributed. This flow of guns takes place in numerous ways, including "straw purchases" (purchases from licensed dealers on behalf of other persons not qualified to buy under applicable law), multiple sales (multiple purchases over a short stretch of time by persons intending to sell or transfer to others not qualified to buy), sales by the defendants to "kitchen table" dealers licensed to sell but who do not do so from retail stores, and gun show sales by sellers who typically lack federal firearm licenses and are not required to do purchaser background checks.

The complaint alleges that the defendants have distributed their firearms without adequate self-regulation or supervision in order to increase firearm sales, knowing or constructively knowing that they are creating, maintaining, or supplying the unlawful flow of firearms into the District and similarly knowing that those guns will be used to commit crimes such as the ones that have caused death or injury to the individual plaintiffs or persons they represent. The complaint further alleges numerous illustrative means by which the defendants are able to restrict or impede the unlawful flow of firearms into the District but have not done so. These include (to name just three) directing and encouraging their distributors and dealers to refuse to sell in circumstances where the dealer knows or should know that the buyer seeks to make a straw purchase; requiring such dealers to refuse to sell more than one handgun a month to any person not holding a federal firearms license; and requiring their distributors to sell only to "stocking dealers," i.e., retailers who stock guns from retail stores, and not to "kitchen table" dealers or at gun shows.

Based on these general allegations, Count I of the complaint (Strict Liability) alleged that the defendants are liable to the District of Columbia under D.C.Code § 7-2551.02 and related statutes for health care costs, Medicaid expenses, and other costs of assistance and compensation paid by the District to or on behalf of victims of gun violence including civilians, police officers, and firefighters, and are liable to the individual plaintiffs for direct and consequential damages proximately caused by the defendants' conduct. Count II (Negligent Distribution) alleged that the defendants breached "a duty to the District and its residents not to create an unreasonable risk of foreseeable harm from the distribution of their firearms, and to take reasonable steps to limit this risk once it had been created." In Count III (Public Nuisance) the District alone alleged that the defendants have "created an ongoing public nuisance of readily available handguns and machine guns that unreasonably interferes with District residents' enjoyment of health, safety, and peace."

II. Standard of Review

The defendants moved for judgment on the pleadings as to all counts, Super. Ct. Civ. R. 12(c), and the trial judge granted the motion and dismissed each count for failure to state a claim for which relief can be granted. Rule 12(b)(6); see Osei-Kuffnor v. Argana, 618 A.2d 712, 713 (D.C.1993)

(standards same for dismissal under Rule 12(b)(6) and judgment under Rule 12(c)). In reviewing that decision, this court "conducts a de novo review of the record, construing all facts and inferences in the light most favorable to the plaintiff[s] and taking the complaint's allegations as true." Duncan v. Children's Nat'l Med. Ctr., 702 A.2d 207, 210 (D.C. 1997). A complaint may not be dismissed because the court merely "doubts that [the] plaintiff[s] will prevail on a claim," id. (citation omitted), but "dismissal for failure to state a claim may properly be granted where it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [the] claim which would entitle [them] to relief." Id. (citation and quotation marks omitted).

Applying these standards, we consider first the two common-law counts alleged, then the statutory count as it relates to each of the two classes of plaintiffs.

III. Negligent Distribution

The trial court dismissed the count of negligent distribution primarily on the basis of Delahanty, supra. See

Mem. Op. and Order at 25 ("Based upon the fundamental concept of stare decisis, this Court is required to apply Delahanty. On the common law negligence claims, this Court is simply not free to do otherwise."). Delahanty indeed poses a large obstacle to the plaintiffs' attempt to plead negligence for harm resulting from the unlawful actions of third parties. Delahanty came before this court as a certified question from the United States Court of Appeals asking "whether, in the District of Columbia, `manufacturers and distributors of Saturday Night Specials may be strictly liable for injuries arising from these guns' criminal use."' Delahanty, 564 A.2d at 759 (citation omitted). Our answer to that question ranged more widely, however. We pointed out that, although "[t]he certifying court focused on whether this court would adopt the strict liability theory described in Kelley [v. R.G. Indus., 304 Md. 124, 497 A.2d 1143 (Md.1985)]," that court noted that "`the theoretical underpinnings [of Kelley] are somewhat unclear' and that the certified question was not intended to restrict this court to a particular rationale for this cause of action." Delahanty, 564 A.2d at 760 (citation omitted). Further, because this...