MANHATTAN (CN) – With one judge describing the shooter as an “anonymous maniac,” the Second Circuit appeared ready Wednesday to reject claims against the maker of an assault rifle used in a fatal drive-by.
Norman Williams and Diane Howe went before the appeals panel this morning after failing to make the case in U.S. District Court for the District of Vermont that gun maker Romarm is responsible for the 2010 shooting of their son, J.H., in Washington, D.C.
In four previous lawsuits — one each in the federal and superior courts of Maryland and Washington, D.C. — the Howes have failed to advance similar versions of the same case. Each dismissal has hinged on the Foreign Sovereign Immunities Act, which requires the defendant to be responsible for the harm alleged without any “intervening cause.”
Priming the Howes for their latest defeat, U.S. Circuit Judge Dennis Jacobs suggested Wednesday that the couple failed again to pass the test.
“Why wouldn’t an anonymous berserk gunman be an intervening cause?” Jacobs asked.
The Howes have made the case meanwhile that Romarm became liable when it allowed one of its assault rifles to slip into Washington, where such weapons are illegal.
“Once the weapon is in the country, it’s subject to the laws of this country,” Daniel Wemhoff, an attorney for the couple, said in court this morning.
U.S. Circuit Judge Jon Newman appeared skeptical of this argument.
“What injury did you suffer from the act of importation alone?” Newman asked.
The gun maker Romarm is owned by the Romanian government. Its attorney Jeffrey Malsch said that the rifle legally entered the United States through an intermediary, Century International Arms.
“It [Romarm] did not actually import the product into the United States,” Malsch said.
The gun left Ohio when it was sold to a dealer in Maryland, and Malsch also noted that Romarm was not accused of making a defective product.
Jacobs noted that a shoddy rifle might have averted the tragedy.
“Wouldn’t it have been better had the weapon not gone off?” he asked.
Washington is one of dozens of cities and municipalities across the country that imposes strict liability on gun makers to combat deadly shootings.
Asked by Jacobs whether similar laws could attach liability to foreign manufacturers for “killings with a baseball bat, or a kitchen knife, or a rope,” Wemhoff replied that these hypothetical statutes could hold up in court.
U.S. Circuit Judge Rosemary Pooler, the third member of Wednesday’s panel, presided remotely via closed-circuit television and remained mostly silent throughout the hearing.
The three-judge panel reserved decision on the case.