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Post by Deleted on Nov 19, 2017 1:37:17 GMT -5
MOD NOTE:
Enough on the typo already.
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Post by Christine on Nov 19, 2017 2:08:58 GMT -5
Yes, I read all the links you posted in their entirety. Also the PLCAA itself, which is saved as a .pdf to my desktop. I'll take it you haven't read the .pdf I linked yet, because it was about 3 minutes between my posting it and your response. It is a 46 page article from the Florida Law Review by a (I checked) highly esteemed attorney and professor of law. I have read a ton of articles in the last few days on the PLCAA. None of them have claimed ,as you claim, that the PLCAA has had no real effect on litigation. For someone who got all fussed about whether "three" qualifies as "several" This is a ridiculously (and I think, now that I've clarified, intentionally) mischaracterized interpretation of my words. Again: I was addressing Amadan, who said "several" didn't necessarily include me, and I assumed you were talking about me, because you used the term "several," and I was correct in that assumption) Here's the thing, Cassandra. You're a lawyer. You are licensed to practice law. No one who is not a lawyer, like you, is permitted to practice law. So in that, on this board, you are uniquely qualified: to practice law. However, you are not uniquely qualified to understand the law. Everyone else here can also understand the law. So did I. Is my thought, trouble, and research less than yours? And FWIW, I read and research tax law on a regular basis. The subset is different, but the intellectual capacity to read and understand is generally the same. I put effort into researching the PLCAA as well, and I didn't get to rely on the premise of "I'M A LAWYER, SO I'M AN EXPERT." So... you didn't read it. It's very good, imo. It was the best and most reputable source I found. There were others, but this one, I thought, might be up to your caliber, expertise-wise. You don't have to convince me; I believe you. And while I agree that the best course for gun control would be through legislation, that isn't happening. And if it didn't happen after Sandy Hook, I'm sorry to say it's probably not going to happen. I have considered your arguments. I've responded. You keep doing that. If you're tired of responding, stop responding. But I do hope you read that law review; it's a compelling argument for why it's a fact (and a problem) that the PLCAA allows negligence that can't be litigated (in the area of gun theft--though he alludes to the fact that there are areas as well).
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Post by Don on Nov 19, 2017 6:24:08 GMT -5
Okay, if we've got the PLCAA figured out, anybody want to tackle "shall not be infringed?"
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Post by Deleted on Nov 19, 2017 11:31:17 GMT -5
Christine, you actually didn't answer my points. You reiterated your own and threw an article at me, saying it was awesome, but without analysis or explanation of what you found so convincing. Instead, you relied on the author's legal background as your ace card -- while at the same time pooh-poohing the value of mine. Actually, I AM better qualified to understand the law than you are. That's what I learned in law school. That's why people pay me to 'splain it to them. Seriously, do you think three years of legal training and a bar exam (let alone years of experience) are just about getting a piece of paper allowing one to practice? My legal training enables me to spot the difference between various cases, various elements of the causes of action, and how they apply and don't apply. You, on the other hand, jumble up cases where people got harmed by a product because they all seem alike to you. You dismiss the elements of the causes of action like they don't matter. "Pfft, criminal misuse, design defect. Who cares? Someone got hurt by a product! That's what matters!" No, actually, it isn't. You keep parroting "negligence!" "negligence!" because an article said the PLCAA acted to bar negligence cases, but you don't give any examples of meritorious negligence cases involving guns that you think were wrongly tossed out, much less explain why you think they should have been allowed to proceed, much less show that there's a rash of such cases resulting in widespread injustice and demonstrating the PLCAA has had a huge effect. You don't address the cases I cited that were allowed to proceed in court under exceptions to the PLCAA. They included, for example, a dangerous design case where a parent left a loaded unlocked gun next to a small child and the kid fired it, leaving his dad a paraplegic. There was an interesting point about how the child didn't have the intent to fire the gun, so it wasn't criminal misuse, so the case wasn't barred by the act. That case might result in a safer gun design -- and it wasn't barred. The facts, the elements of the cause of action -- they matter. You didn't answer my points on why, even if not barred, cases resulting from deliberate shootings would be unlikely to result in safer gun designs. You didn't answer my point about how most of the accident cases were not the result of badly designed safeties, but rather of people being idiots with their guns, and therefore would not result in changes to gun designs. You never addressed my point about how lawsuits were an inefficient, burdensome, uncertain way to address gun safety. You just regurgitated the same stuff. After not addressing my cases or arguments, you sneer that I have not yet addressed your sacred 49 page law review article, which you do not discuss but merely throw at me, defying me to educate myself and respond. (Not that it matters, by the way, but I never heard of the guy. I'm sure he's a good professor, but I'm not sure why you think he's THE expert here. But whatever.) You accuse me of exaggerating what you say -- besides your ridiculous quibble about "several", in the discussion leading to it you also accused me of misinterpreting your statement about claims being barred by the PLCAA. But then you proceed to turn right around and twist my saying the kerfuffle about the PLCAA was "a bit overblown" into "you claim the PLCAA makes NO DIFFERENCE! Ha! Wrong! Because this guy thinks so!" And you did it all from atop of your high, high horse. Bravo.
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Post by Deleted on Nov 19, 2017 12:55:22 GMT -5
As a side point (one Vince and Amadan may dispute), my guess is that if the PLCAA were eliminated, we would certainly get more people trying to sue gun manufacturers and sellers. But I tend to doubt it would be ruinous for gun manufacturers/sellers, just as I doubt it would bring huge boons to victims.
I am guessing a lot of cases would be tossed out for not stating a viable cause of action (because it's not enough to say "someone got hurt! With a gun!" to state a cause of action, even absent the PCLAA).
Mostly, I think eliminating the PLCAA would result in a greater burden on already over-burdened courts, some additional work for lawyers, some hassle for gun shops and manufacturers (which, meh, I don't care that much about) -- but ultimately comparatively little in the way of additional relief to victims, and quite probably nothing in the way of safer guns. (Why do I say the latter? Because under the PLCAA, a plaintiff can still bring a case about a defective gun designs under a strict liability theory. If the problem really is a bad gun design and not a bad person, you can still bring your case.)
So, sure the PLCAA makes a difference in the number of cases clogging our courts. But I think the difference to plaintiffs and making guns safer likely is, as I said, a bit overblown.
That said, I think the idea that repealing the PLCA would result in zillions of frivolous cases that would ruin sellers/manufacturers is also overblown, mostly because, as I've discussed elsewhere, lawyers have a strong disincentive not to bring truly frivolous cases. So I think THAT concern is a bit overblown, too, fwiw. We'd certainly get lots of cases that would come in and be tossed. But a ruinous avalanche? Meh, I doubt it.
But THAT said, I think the much better, more efficient, more reliable, more sensible, more consistent, less burdensome (to courts and victims), way to achieve less gun violence and more gun safety is through the legislature, not the courts. As I've said.
And the basic idea of not penalizing a business for harm caused solely by the criminal actions or misuse of a third party, I'm on board with and I think is consistent with product liability law in other areas.
So I think the hand-wringing about the PLCAA is overblown all round and misplaced. There are better, more productive discussions and solutions.
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Post by Deleted on Nov 19, 2017 13:26:27 GMT -5
For those who don't feel like going to my cases and reading the whole thing, here's an excerpt from the case I cite above, the one with a small child and an unlocked, loaded gun. It's quite illuminating, I think, as to how courts carefully weigh the facts and elements of the cause of action as well as the wording and intent of the PLCAA to see if an exception applies.
ETA:
This case, actually, bears comparison to the Cricket case. you have a product that was not meant for the child to use. The child got hold of it anyway because the parent left it in an accessible area, and it resulted in harm. But there was no criminal misuse in either case. Both cases were allowed to proceed under a strict liability theory.
Specific facts. Elements of causes of actions. They matter.
ETA -- my apologies -- I just realized in my hasty typing, I accidentally misstated. I meant to say both plaintiffs in Cricket and Glock were allowed to proceed, but they weren't both strict liability. One went forward under negligence, one under strict liability -- but my point stands:. The harm and cause was comparable. And the PLCAA didn't block the suit.
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Post by Amadan on Nov 19, 2017 13:55:27 GMT -5
Damn you guys, and usually I am the one accused of arguing things into the ground.
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Post by Amadan on Nov 19, 2017 14:00:00 GMT -5
Okay, if we've got the PLCAA figured out, anybody want to tackle "shall not be infringed?" Well, the most rabid 2A supporters interpret that to mean "Any law that affects anyone's ability to own any weapon whatsoever is unconstitutional." I personally find that to be an implausible reading either of the framers' intent or of how Constitutional law works in general.
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Post by Deleted on Nov 19, 2017 14:02:04 GMT -5
Another case I cited above involved a gun shop selling a gun to a mentally unbalanced person, despite the fact that the mother of the person warned the gun shop about her. The state had no negligent entrustment law, so the trial court tossed the case as barred by the PLCAA. But it was overturned on appeal. It didn't matter that Missouri didn't have any negligent entrustment law that the seller violated. The seller was still liable for "selling a dangerous item with knowledge that the buyer was unlikely to safely possess the item." My point here, Christine, is that a lot of the meritorious fact patterns that you seem to think would be barred may not, in fact, be barred. Or they might proceed under another cause of action -- strict liability or negligent entrustment rather than negligence (which is exactly what happened in the examples I cite). Others, I suspect, would not be barred for the reasons you think. Facts matter. Elements of causes of action matter. But I can't assess that because you haven't provided any cases you believe were wrongly barred from seeking relief, much less demonstrating that there's a rash of such cases, which there would be if the PLCAA has had such a yuuuuge negative impact on plantiffs.
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Post by Deleted on Nov 19, 2017 14:03:31 GMT -5
Damn you guys, and usually I am the one accused of arguing things into the ground. You deserved a holiday, Amadan.
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Post by Christine on Nov 19, 2017 14:40:05 GMT -5
Christine, you actually didn't answer my points. You continue to make points to which I have no disagreement. From the beginning, you have said that I have claimed gun manufacturers have "complete immunity" from liability. You demonstrated this by cherry-picking from my posts, bolding phrases that, if you read the entire sentence, you can see clearly that I never claimed gun manufacturers can NEVER be sued. Neither did you, until just now. I will attempt to reciprocate. If you felt I was pooh-poohing on the value of your knowledge, I apologize. I respect that you have knowledge and experience. What I do not respect is throwing out "I'm a lawyer. I know," and pooh-poohing on the idea that anyone else could read and understand and provide support. I'm not making shit up here. I have linked to legal arguments. This is complete and utter bullshit. I'll take it as hyperbole because if that were truly how you view my arguments, you're not reading them. I accept that the Tylenol case was a matter of product liability; I did not refute your point there. However, negligence here is the key issue, from my reading. You have stated, and I repeated, and agreed, that under the PLCAA suits for negligence per se and negligent entrustment are allowed. But those are very specific and limited types, by definition. There are several other ways in which a manufacturer or seller can be negligent--for example, as per the law review article, there cannot be a case against a seller whose weapons are stolen--unless there is a statute (9 states have them) that requires weapons be secured, in which case if the seller has not followed the statute they can be sued under the negligence per se exception. If not, then it's thrown out under the PLCAA. From the article: I have explained why I think the PLCAA is too limiting, and why I think it would be a net benefit to repeal the PLCAA. The law review article talks about this, and at the end, they discuss allowing negligence cases currently barred by the PLCAA (of which there are many examples and references in the article) as a modest deterrence model (another thing I really liked about this article was how the author acknowledged both sides of the argument before making his case): The other thing I've said from the beginning is that, if a person believes the PLCAA is just -- that gun manufacturers or sellers should not be sued for negligence (outside of the PLCAA exemptions) -- then fine. My argument has been that the threat of suit could incentive those in gun industry to change their practices or behavior, where needed. The case with the Glock is a matter of product liability, yes? Not negligence, right? The gun and/or holster was defective, so negligence wasn't at issue. But, yes, it is good news that in this case, the use of the weapon by the child was not thrown out as "unlawful use" (on appeal, that is). These are your opinions, and they are not shared by everyone. I did attempt to address them--it was the whole point of several of my posts. Note that I did also agree with you that legislation would be preferable. It is so interesting to me that you read me this way. It's how I read you, too. Sneering and accusatory and on a high horse. And, it seems, angry that I don't agree with everything you say. Can we not do that part? I will try harder, too.
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Post by Deleted on Nov 19, 2017 15:27:32 GMT -5
Come on, you said you read all my links.
The weapon in Glock was not defective -- it operated as designed. It did not violate any laws. It was conceded that the design was useful for the purpose for which the gun was intended.
The issue the court thought worthy of going forward in that regard was whether, nevertheless, a safer design would have accomplished the same purposes.
This, as I said, is very much like Cricket, where the issue was whether the lighter could have been designed more safely and still accomplished the same purposes for which it was designed.
This is what I mean when I say that cases that don't hinge on someone criminal act or misuse may still be bringable under the exceptions. The misuse factor is very important.
ETA:
I originally cited Glock when posing this question -- I thought, reading the case, it was self-evident why it applied. But perhaps to a non-lawyer it isn't.
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Post by Christine on Nov 19, 2017 15:38:16 GMT -5
For those who don't feel like going to my cases and reading the whole thing, here's an excerpt from the case I cite above, the one with a small child and an unlocked, loaded gun. It's quite illuminating, I think, as to how courts carefully weigh the facts and elements of the cause of action as well as the wording and intent of the PLCAA to see if an exception applies. ETA: This case, actually, bears comparison to the Cricket case. you have a product that was not meant for the child to use. The child got hold of it anyway because the parent left it in an accessible area, and it resulted in harm. But there was no criminal misuse in either case. Both cases were allowed to proceed under a strict liability theory. Specific facts. Elements of causes of actions. They matter. I read that the supreme court reversed the reinstatement of strict liability, because the lighters worked as intended for the the intended users. Am I reading this incorrectly?
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Post by Christine on Nov 19, 2017 15:44:11 GMT -5
Come on, you said you read all my links. The weapon in Glock was not defective -- it operated as designed. It did not violate any laws. It was conceded that the design was useful for the purpose for which the gun was intended. The issue the court thought worthy of going forward in that regard was whether, nevertheless, a safer design would have accomplished the same purposes. This, as I said, is very much like Cricket, where the issue was whether the lighter could have been designed more safely and still accomplished the same purposes for which it was designed. This is what I mean when I say that cases that don't hinge on someone criminal act or misuse may still be bringable under the exceptions. The misuse factor is very important. ETA: I cited Glock when posing this question -- I thought, reading the case, it was pretty obvious why it applied. But perhaps to a non-lawyer it isn't. I never saw that Glock link. (it's huge by the way -- so you officially "started" it. ) It appears you added several additional links the day after you posted. I only read the original post, wherein the last link was to the wiki gun death stats, so I missed the edits.
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Post by Deleted on Nov 19, 2017 15:52:10 GMT -5
Yes, the Cricket and Glock cases went forward under different causes of action. And of course, the facts aren't identical.
My point is that the court in Glock allowed the cause of action (which was quite similar in terms of non-defective product designed for adults that nonetheless could have been designed more safely in case a kid got hold of it) to go forward.
The Glock case could theoretically probably have also have gone forward under a negligence theory, had that not been barred. It was, but the Court still let it go forward under strict liability. And the reason was the lack of a criminal act or misuse -- the kid did not intend to shoot the gun. If some one had deliberately grabbed the gun and deliberately shot it, it would've been another matter.
I cited it because seemed to be the kind of case you were worrying about being barred by the PLCAA. But it wasn't.
ETA:
I went back and added the links in an edit because, it being late at night, my computer was off, I started writing on a phone, and my phone wasn't letting me do links. My phone also occasionally deletes my posts midway and it adds random typos that it won't let me clean up. I'm not sure why.
I referred specifically to the cases in a later post and directed you to them because I think they are illuminating with regard how the PLCAA is actually applied by courts.
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