IN THE SUPREME COURT OF OHIO GREGG L. PAVLIDES, : Case No. 96-1717 : Plaintiff-Appellee : On Appeal from the Stark : County Court of Appeals, v. : Fifth Appellate District : NILES GUN SHOW, INC., : : Defendant-Appellant : ____________________________________________________________ MEMORANDUM OF AMICUS CURIAE GUN OWNERS FOUNDATION IN SUPPORT OF APPELLANT'S MOTION TO RECONSIDER ____________________________________________________________ STUART A. BENIS (0031030) 326 South High Street, Suite 300 Columbus, Ohio 43215 Telephone: (614) 463-1551 Fax: (614) 463-1555 JAMES H. JEFFRIES, III (N.C. Bar No. 18502) 3019 Lake Forest Drive Greensboro, North Carolina 27408 Telephone: (910) 282-6024 Fax: (910) 288-0407 Counsel for Amicus Curiae Gun Owners Foundation ALLEN SCHULMAN, JR. (0001124) Allen Schulman & Associates Co., L.P.A. 740 United Bank Building 220 Market Avenue, South Canton, Ohio 44702 Telephone: (330) 456-4400 Fax: (330) 456-3641 PAUL O. SCOTT (0000809) Clark, Perdue, Roberts & Scott, Co., L.P.A. 471 East Broad Street, Suite 1400 Columbus, Ohio 43215 Telephone: (614) 469-1400 Fax: (614) 469-0900 Counsel for Plaintiff-Appellee Gregg L. Pavlides RALPH F. DUBLIKAR (0019235) Baker, Dublikar, Beck, Wiley & Griffin 205 Mellet Building 115 DeWalt Avenue, Northwest Canton, Ohio 44702 Telephone: (330) 453-4999 Fax: (330) 455-0333 Counsel for Defendant-Appellant Niles Gun Show, Inc. FRANK A. RAY (0007762) Ray, Todaro, Alton & Kirstein Co., L.P.A. 175 South Third Street, Suite 350 Columbus, Ohio 43215-5100 Telephone: (614) 221-7791 Fax: (614) 221-8957 Counsel for Amicus Curiae Ohio Academy of Trial Lawyers TABLE OF CONTENTS Page Interest of the Amicus Curiae........................... 1 Reasons Why the Court Should Exercise Jurisdiction...... 1 Statement of the Case and Facts......................... 3 Argument................................................ 3 Response to Propositions of Law Nos. I and II: In the absence of a special relationship between the parties there is no legal duty on the part of a defendant to prevent a third person from intentionally causing injury to another. The intentional shooting of the plaintiff by a third person is a superseding and intervening cause of the plaintiff's injuries when the shooting takes place several hours later and several miles away from the alleged negligence of the defendant..................................... 3 Conclusion............................................. 12 Proof of Service............................................. 13 INTEREST OF THE AMICUS CURIAE Gun Owners Foundation is an Internal Revenue Code Section 501(c)(3) organization incorporated under the laws of the Commonwealth of Virginia. Its purposes are to educate the public about the importance of the Second Amendment to the United States Constitution and to provide legal and other assistance to law-abiding individuals involved in firearms-related cases. GOF's more than 100,000 contributors nationwide are, by self-definition, strongly interested in the right to keep and bear arms and in opposing legislation and litigation which burdens or impedes that right. For example, with the acquiescence of the Solicitor General of the United States and the petitioners therein, GOF participated as amicus curiae in the recent Brady Act cases heard by the United States Supreme Court, Printz v. United States and Mack v. United States, Nos. 95-1478 and 95-1503 (argued December 3, 1996). REASONS WHY THE COURT SHOULD EXERCISE JURISDICTION This case has, rightly or wrongly, attracted much national attention, having been the subject of reporting, commentary and editorial in, among others, the Wall Street Journal (editions of 2/17/94 and 5/18/95); the Washington Times (5/23/95); the National Law Journal (5/29/95); Verdicts, Settlements & Tactics (3/96); the Cleveland Plain Dealer (7/16/94 and 5/14/95); the Cincinnati Enquirer (7/16/94); the Dayton Daily News (7/21/93); and others. The case is widely perceived as having established a judicially created standard of strict or absolute tort liability[FN1] for Ohio vendors of firearms -- and by necessary implication, the strict liability of any firearms possessor or owner who, for whatever reason, loses the ability to control the criminal misuse of his/her firearm. The case is thus of both public and great general interest as contemplated by Rule II(1)(A)(3) of the Rules of this Court. The defendant-appellant Niles Gun Show, Inc. (hereafter "Niles") is caught in a procedural law of the case anomaly not of its own making. Substantively, however, the case is widely, and we believe correctly, viewed as representing a radical departure from long standing, traditional principles of Ohio tort liability and a threat to the fundamental rights of all Ohio gun owners.[FN2] We therefore submit that a case perceived as radically altering the established common law of the State should not be left standing by procedural default. And, if indeed it is to be the position of this Court that a firearms vendor in Ohio is to be held strictly liable in civil damages for any subsequent criminal misuse of a firearm which has passed through his/her possession, that position should be made clear by a forthright exposition by the Court and not by the negative implications to be drawn from the result to date in this case coupled with a denial of review. In addition, given the provisions of the federal and Ohio constitutions ensuring the right to possess firearms,[FN3] the net effect of this case in making a firearms owner the insurer of any victim of the subsequent intentional criminal misuse of that firearm raises serious constitutional questions. These substantial constitutional implications are in addition to those raised by Niles in its application for review and would independently support an exercise of the Court's jurisdiction as described in Rule II(1)(A)(2). STATEMENT OF THE CASE AND FACTS Gun Owners Foundation adopts the Statement of the Case and Statement of Facts set forth in the Memorandum in Support of Jurisdiction of Appellant Niles Gun Show, Inc. ARGUMENT Response to Propositions of Law Nos. I and II: In the absence of a special relationship between the parties there is no legal duty on the part of a defendant to prevent a third person from intentionally causing injury to another. The intentional shooting of the plaintiff by a third person is a superseding and intervening cause of the plaintiff's injuries when the shooting takes place several hours later and several miles away from the alleged negligence of the defendant. On January 19, 1993, four teen-age predators blatantly looted the lawful wares of a number of law-abiding vendors who had sub-leased sales space at the Canton Civic Center from Niles. These merchants were engaged in peaceful and lawful commerce in non-contraband goods whose possession and use is sanctioned by both the Constitution of the United States and the Constitution of the State of Ohio. It may be safely presumed that neither the vendors nor Niles acquiesced in, approved of, or condoned the theft of the firearms, nor reasonably anticipated such thefts. Having stolen several firearms and acquired ammunition,[FN4] these predators then sequentially over the next ten or so hours (1) illegally became intoxicated through the intentional ingestion of alcoholic beverages and inhalation of gasoline fumes; (2) illegally attempted to break into unlocked and unattended automobiles; (3) unlawfully stole an automobile; (4) illegally operated the stolen automobile and operated it in an illegal and unsafe manner; (5) illegally vandalized private property; (6) unlawfully disturbed the peace; (7) illegally possessed one or more concealed firearms; (8) illegally assaulted and attempted to murder two citizens; (9) unlawfully fled the scene; and (10) illegally conspired with and aided and abetted each other in the above crimes. In sum, ten hours and several felonies and misdemeanors after, and miles distant from, the original theft of the firearms, the plaintiff, who had no connection with or relation to Niles, was egregiously injured by the intentional criminal acts of one of these teen predators. Who is to blame for the plaintiff's injuries?[FN5] Most will agree that the shooter and his accomplices should be held civilly liable. But what of the owner of the stolen car who accommodatingly left his keys where the thieves could find them and thus set in motion the subsequent chain of events leading to the shooting? And what should be the liability of an auto manufacturer and who makes a car so readily subject to theft by immature thieves, and that of the dealer who markets such a car? What is the liability of the parents or guardians who reared and failed to either socialize or supervise these monsters? What is the liability of the distillery, the wholesaler and the liquor vendor who made and sold the spirits with which the criminals intoxicated themselves? What is the liability of the gasoline refiner, distributor and gas station who made, distributed and sold the gasoline by which the criminals drugged themselves? Where was law enforcement during the hours of this sordid episode? During the years when these criminal tendencies were being acquired and sharpened? What responsibility do the schools and churches involved, if any, bear for the character and habits of these sociopaths? What is the liability of the vendors who "permitted" their firearms to be stolen, and that of the individual who may have sold ammunition to one of the criminals? What is the liability of the authorities paid to provide police protection to the gun show?[FN6] Apparently none. Rather the plaintiff has successfully focused on the only deep pocket in sight despite his own lack of privity with Niles and in the absence of any discernible legal duty owed by Niles to protect the plaintiff from the intentional criminal acts of a gang of hooligans. Through a series of lower court errors, each compounding its predecessor, Niles has effectively been made the insurer of anyone injured by any instrumentality passing through or connected with one of its gun shows; and an appellate court of the State of Ohio has seemingly backed into a radical expansion of the doctrine of strict liability to firearms vendors (and by an easy extension of its "logic" to manufacturers, distributors and owners). The original error of the Court of Appeals appears to lie in its raising Niles' self-imposed, commercially-inspired policy of convenience (in excluding unaccompanied minors from its gun shows) to an awareness that an unsupervised juvenile will somehow yield to major criminal impulses in the presence of firearms -- to a foreseeability of injury to someone, somewhere, somehow by a juvenile criminal.[FN7] There is no rule of law, or even of common sense or prudence, that requires juveniles to be excluded from gun shows. Gun shows are not pornographic or dangerous or "unsuitable" for persons of tender years. Thousands of gun shows, exhibitions and expositions are held in the United States every year where entire families -- including tens of thousands of minors -- are in attendance. It may be presumed that automobile dealers, boat and aircraft vendors, and an untold assortment of other merchants actively or passively discourage ineligible "shoppers" without creating any supportable inference that it is because of a likelihood the shoppers will steal goods and subsequently embark on a crime spree. The court below was probably led to its initial erroneous ruling[FN8] because of the long and respectable line of cases holding liable those who negligently permit firearms to be possessed by persons whose immature or unstable judgment makes it entirely reasonable to foresee that others may be injured by virtue of that immature or unstable judgment.[FN9] But to leap from that reasonable and uncontroversial rule of law to one which imposes strict liability for any subsequent intentional criminal misuse simply ventures where the law has been unwilling to go.[FN10] As reflected by the above-cited authorities, the courts and the commentators are well nigh universal in their refusal to extend the concept of strict or absolute liability to gun sellers (or manufacturers, distributors or owners) for the intentional criminal acts of persons with whom they have no legal relationship.[FN11] And in the two known instances where strict liability was judicially imposed on gun vendors, the legislatures promptly nullified the decisions by curative legislation.[FN12] As cogently stated in the Harvard Law Review with respect to manufacturers' liability (who stand in no different shoes from the defendant in this action in terms of criminal misuse of their product by strangers): ...the notion that manufacturers should be held responsible for keeping their products out of the hands of criminals -- an impossible task -- seems flawed both doctrinally and as a matter of policy. Perhaps most important, the problem of determining how best to deal with the misuse of handguns is a matter better suited for legislatures than courts.[FN13] The article concluded: When a product is intentionally and illegally misused, or improperly distributed by another party to those who will misuse it, there is little a manufacturer can do to prevent injury. The question of the value of handguns and their role in society is one for the legislatures, not for the courts. Courts should not use products liability law to preempt political debate over the emotion-charged and value-laden issue of handgun control.[FN14] Plaintiff and his amicus seek to preserve his recovery (and its logical extension to other deep pocket defendants) by persuading this Court to deny review, on purely procedural grounds, of this radical expansion of strict tort liability. We respectfully submit that if the Court is to countenance such an extraordinary revision of Ohio law, it should do so affirmatively and directly, rather than by denial of review. CONCLUSION For all the reasons recited above, the Court should accept jurisdiction in this case. Respectfully submitted, ____________________________ STUART A. BENIS (0031030) 326 South High Street, Suite 300 Columbus, Ohio 43215 Telephone: (614) 463-1551 Fax: (614) 463-1555 ____________________________ JAMES H. JEFFRIES, III (North Carolina Bar No. 18502) 3019 Lake Forest Drive Greensboro, North Carolina 27408 Telephone: (910) 282-6024 Fax: (910) 288-0407 Counsel for Amicus Curiae Gun Owners Foundation CERTIFICATE OF SERVICE I hereby certify that the foregoing Memorandum of Amicus Curiae Gun Owners Foundation in Support of Jurisdiction was served on the parties and amicus curiae by mailing true copies thereof on January , 1997, to: ALLEN SCHULMAN, JR. (0001124) Allen Schulman & Associates Co., L.P.A. 740 United Bank Building 220 Market Avenue, South Canton, Ohio 44702 PAUL O. SCOTT (0000809) Clark, Perdue, Roberts & Scott, Co., L.P.A. 471 East Broad Street, Suite 1400 Columbus, Ohio 43215 Counsel for Plaintiff-Appellee Gregg L. Pavlides RALPH F. DUBLIKAR (0019235) Baker, Dublikar, Beck, Wiley & Griffin 205 Mellet Building 115 DeWalt Avenue, Northwest Canton, Ohio 44702 Counsel for Defendant-Appellant Niles Gun Show, Inc. FRANK A. RAY (0007762) Ray, Todaro, Alton & Kirstein Co., L.P.A. 175 South Third Street, Suite 350 Columbus, Ohio 43215-5100 Counsel for Amicus Curiae Ohio Academy of Trial Lawyers __________________________________ STUART A. BENIS (0031030) 326 South High Street, Suite 300 Columbus, Ohio 43215 Telephone: (614) 463-1551 Fax: (614) 463-1555 [FN1]. "Strict liability as used in this edition refers to liability that is imposed apart from any recovery on a theory that defendant knowingly or purposely interfered with a legally protected interest or was negligent." W. Page Keeton, Prosser and Keeton on Torts, chap. 13, "Strict Liability for Physical Harm to Persons and Tangible Things from Accidental Invasions," p. 554 (West Pub. Co.; St. Paul, Minn.; 5th ed. 1984 & 1988 Supp.). [FN2]. This is not to minimize the potential injustice to this particular defendant by a refusal of this Court to grant review, but only to point out that this amicus has no particular credentials to aid the Court's resolution of an arcane point of Ohio procedural law concerning the law of the case doctrine. We thus address only the liability issue. [FN3]. Amendment II to the United States Constitution provides that "A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed." Section 4 of Article 1 of the Ohio Constitution provides that "The people have the right to bear arms for their defense and security...." Several courts have suggested that the constitutionally recognized status of firearms puts them in a more protected category with respect to the imposition of vicarious or strict tort liability. See Martin v. Harrington & Richardson, Inc., 743 F.2d 1200,  15 (7th Cir. 1984) (refusing to impose strict tort liability because "The right of private citizens in Illinois to bear arms is protected, at least against all restrictions except those imposed by the police power, by the Illinois Constitution." Ibid.); Parman v. Lemmon, 119 Kan. 323, 324, 344 P. 227, 233 (1926) (rehearing) ("the Legislature did not intend to make law violators of 60 per cent. of the militia of the state...." Id. at 324 and 233); McKellar v. Mason, 159 So.2d 700 (La. Ct. App. 1964), aff'd, 245 La. 1075, 162 So.2d 571 (1964) ("The Constitutions of the United States and Louisiana give us the right to keep and bear arms. It follows, logically, that to keep and bear arms gives us the right to use the arms for the intended purpose for which they were manufactured." Id. at 702.). Cf. Robinson v. Howard Brothers of Jackson, Inc., 372 S.2d 1074, n.1 (Miss. 1979); Mavilla v. Stoeger Industries, 574 F.Supp. 107 (Mass. 1983). See also, Stephen P. Halbrook, "Tort Liability for the Manufacture, Sale, and Ownership of Handguns?" 6/2 Hamline Law Review 351, 354-355 (July 1983). [FN4]. There is no evidence whatsoever that the ammunition here was purchased from a federally licensed dealer and therefore no evidence whatsoever that the sale, if any, was a violation of federal law. See 18 U.S.C. section 922(b)(1). There is no federal, and apparently no Ohio, prohibition on the sale of ammunition to minors by non-licensees, and no legal requirement for a license for casual sales. Most important to this case, there is no evidence that Niles caused, permitted, sanctioned, participated in or tolerated such a sale. [FN5]. Besides himself, that is. Plaintiff was found comparatively negligent by the jury by a factor of 50 percent. Trial Court's Opinion filed May 23, 1995, n.2. [FN6]. "[Niles] rented the center from the City of Canton and paid the city for police ... protection." Pavlides v. Niles Gun Show, Inc., (1994) 93 Ohio App.3d 46, 49 (emphasis added). [FN7]. The flaw in the Court of Appeals' reasoning can be demonstrated by the simple question: What would have been its decision if the thieves had been adults? Is there some rule of logic or reason or foreseeability that a teenager who steals a gun will have murderous tendencies (and will act on them), but the adult population does not and will not? If age is not, therefore, the implicit decisional factor here, is not the rule of the case that a gun vendor becomes an insurer of the public at large for any subsequent crime committed by anyone coming into possession of a gun which once passed through the seller's hands? To cap the irony of the lower court's having incorrectly relied on the age of the offenders, the principal offender was tried, convicted and sentenced as an adult offender. [FN8]. (1994), 93 Ohio App.3d 46, 637 N.E.2d 404; review denied, (1994), 69 Ohio St.3d 1488, 635 N.E.2d 43 (two Justices dissenting). [FN9]. See, e.g., Taylor v. Webster (1967), 12 Ohio St.2d 53, 41 O.O.2d 274, 231 N.E.2d 870; Dixon v. Bell, 5 Maule & Selwyn 198 (Eng. 1816) (liability imposed for negligently entrusting a loaded gun to a 13-year-old servant girl); Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395 (1957) ("common prudence, in behalf of self-protection, justified the possession of the pistol for immediate use at night" but the owner was negligent to absent himself and leave it "in a place frequented by young children." Id. at 340 and 404); Lundy v. Hazen, 90 Idaho 323, 411 P.2d 768 (1966) (negligence per se to sell .22 revolver to a 13-year-old); Cullum & Boren-McCairn Mall, Inc. v. Peacock, 592 S.W.2d 442 (Ark. 1980) (gun dealer sold a handgun to a mentally disturbed person who, according to witnesses, was acting very strangely; purchaser shot plaintiff for no apparent reason; dealer liable); Jamison v. Dance's Sporting Goods, Inc., 854 F.Supp. 248 (S.D. N.Y. 1994) (no dealer liability for misuse of a pistol; Virginia gun dealer had no factual basis to question mental condition of pistol purchaser who promptly lost pistol which was used 11 days later to kill decedent in New York City; no liability under 18 U.S.C.  922(d)(4) because dealer did not know or have reasonable cause to believe purchaser had been adjudicated a mental defective); Angell v. F. Avanzini Lumber Co., 363 So.2d 571 (Fla. Dist. Ct. App. 1978) (liability of firearm seller to questionable purchaser). Cf. Lopez v. Chewiwie, 51 N.M. 421, 186 P.2d 512 (1947) (the mere keeping of a firearm in the home does not constitute negligence where a minor injures another with it); Parman v. Lemmon, 119 Kan. 323, 344 P. 227 (1926) (rehearing) (no parental liability for furnishing a shotgun to a teenager); Moning v. Alfonso, 400 Mich. 425, 254 N.W.2d 759 (1977) (it was for the jury to decide whether an unreasonable risk of harm existed in marketing slingshots directly to children); Napiearlski v. Pickering, 278 A.D. 456, 106 N.Y.S.2d 28 (1951) ("We are aware of no authority in this state which holds that having a gun in one's house is negligence, even though a child may find access to its hiding place." Id. at 458 and 30); Decker v. Gibson Products Co., 679 F.2d 212 (11th Cir. 1982) (jury question as to whether the sale of a firearm to a felon whose civil rights were restored and whose purchase was approved by the sheriff could be reasonably foreseen to result in murder); Dick v. Higgason, 322 S.W.2d 92 (Ky. 1959) (no negligence by owner where 12-year-old child found cartridges in a desk, loaded a .22 rifle and wounded the plaintiff); Jacoves v. United Merchandising Corp., 9 Cal.App.4th 88, 11 Cal.Rptr.2d 468 (1992) (action against gun dealer for wrongful death of young distraught person who used the gun to commit suicide). [FN10]. See, e.g., Adkinson v. Rossi Arms Co., 659 P.2d 1236 (Alaska 1983) (no strict liability for criminal misuse of a firearm); Armijo v. Ex Cam, Inc., 656 F.Supp. 771 (N.M. 1987), aff'd, 843 F.2d 406 (10th Cir. 1988) (same); Bennet v. Cincinnati Checker Cab Co., Inc., 353 F.Supp. 1206 (E.D. Ky. 1973) (firearms dealer was under no duty to protect plaintiff who was shot in a criminal attack with a gun imported by the dealer; "Under all ordinary and normal circumstances, in the absence of any reason to expect the contrary, the actor may reasonably proceed upon the assumption that others will obey the criminal law." Id. at 1210); Burkett v. Freedom Arms, Inc., 299 Or. 551, 704 P.2d 118 (Ore. 1985) ("Saturday Night Special" rationale for strict liability of firearms manufacturer for third party's tortious misuse of firearm rejected); Delahanty v. Hinckley, 564 A.2d 758 (D.C. 1989) (court declined to impose strict liability upon manufacturer of firearm for criminal misuse of firearm based upon the "Saturday Night Special" rationale); Hulsebosch v. Ramsey, 435 S.W.2d 161 (Tex. 1968) (no strict liability for criminal misuse of a firearm); Hulsman v. Hemmeter Development Corp., 65 Hawaii 58, 647 P.2d 713 (1982) (no strict liability of seller for criminal misuse of a firearm; "federal statutes regulating firearm sale did not create a duty on a seller in a negligence action nor did it create a private right of action for damages." Id. at 720); Knott v. Liberty Jewelry & Loan, Inc., 748 P.2d 661 (Wash. App. 1988) (court declined to impose strict liability on manufacturer of firearm based upon its criminal misuse); Linton v. Smith & Wesson, 120 Ill.App.3d 676, 82 Ill.Dec. 805, 469 N.E.2d 339 (Ill. App., 1st Dist., 1984) (there is no duty upon the manufacturer of a non-defective firearm to control the distribution of that product to the general public); Martin v. Harrington & Richardson, Inc., 743 F.2d 1200 (7th Cir. 1984) ("Saturday Night Special" rationale for strict liability of firearms manufacturer for third party's tortious misuse of firearm rejected); Mavilia v. Stoeger Industries, 574 F.Supp. 107 (Mass. 1983) (shooting victim attempted to recover damages from non-defective firearm manufacturer under product liability theory; no strict liability); McCarthy v. Sturm, Ruger & Co., Inc., 916 F.Supp. 366 (S.D.N.Y. 1996) (strict liability action against manufacturer of hollow point ammunition dismissed because manufacturer owed no duty under New York law to victims of criminal misuse of ammunition; Colin Ferguson's commuter train shooting was extraordinary act that broke chain of causation); Moore v. R.G. Industries, Inc., 789 F.2d 1326 (9th Cir. 1986) ("Saturday Night Special" rationale for strict liability of firearms manufacturer for third party's tortious misuse of firearm rejected); Patterson v. Rohm Gesellschaft, 608 F.Supp. 1206 (N.D. Tex. 1985) (rejecting the "Saturday Night Special" rationale for imposing strict liability against manufacturer of firearm used in the murder of a store clerk); Perkins v. F.I.E. Corp., 762 F.2d 1250 (5th Cir. 1985) (two cases) ("Saturday Night Special" rationale for strict liability of firearms manufacturer for third party's tortious misuse of firearm rejected; strict liability risk-utility analysis was improper when dealing with torts caused by a well-made product that functioned precisely as it was designed to do); Reida v. Lund, 18 Cal.App.3d 698, 96 Cal. Rptr. 102 (1971) (strict liability action may not be maintained against a father alleged to have inadequately safeguarded his gun, thereby permitting his son to shoot several people); Robinson v. Howard Brothers of Jackson, Inc., 372 So.2d 1074 (Miss. 1979) (firearms dealer sold a pistol and ammunition to a minor in violation of both state and federal law; minor murdered decedent and estate sued dealer; "The criminal act cannot be said to have been within the realm of reasonable foreseeability because the defendants, although negligent per se, could reasonably assume that [the murderer] would obey the law." Id. at 1076); Romero v. National Rifle Association of America, Inc., 749 F.2d 77 (D.C. Cir. 1984) (jury verdict for negligence of NRA where a murder weapon had been burglarized from the offices of NRA days earlier set aside and judgment NOV granted); Shipman v. Jennings Firearms, Inc., 791 F.2d 1532 (11th Cir. 1986) ("Saturday Night Special" rationale for strict liability of firearms manufacturer for third party's tortious misuse of firearm rejected); Shively; United States v., 345 F.2d 294 (5th Cir. 1965), cert. denied, 382 U.S. 883, 86 S.Ct. 177, 15 L.Ed.2d 124 (1965) (a service pistol was issued to a soldier in civilian clothes in violation of an Army regulation against issuing a firearm to an off-duty soldier not in uniform; his subsequent assault on his former wife was held to be unforeseeable); Skelton v. Gambrell, 80 Ga.App. 880, 57 S.E.2d 694 (1950) (minor's commission of murder with pistol furnished him by parents held unforeseeable where he was known to be reckless but not malicious); Staruck v. County of Otsego, 285 A.D. 476, 138 N.Y.S.2d 385 (1955) ("The gun which he stole had been hidden and there was no reasonable ground to believe that he would find it and steal it." Id. at 478 and 387). And see Searcy v. City of Dayton, 38 F.3d 282 (6th Cir. 1994) (city and chief of police were not liable under 42 U.S.C. section 1983 for wrongful death of decedent by an off-duty policeman using a registered machinegun possessed through a BATF Form 4 transfer approved by the chief; nothing in signing Form 4 law enforcement certification was cause of shooting; "devoid of causation"). See also Holmes, "Privilege, Malice, and Intent," 8 Harvard Law Review 1 (1894) (a seller of firearms should not be held liable for crimes committed with those firearms because "every one has a right to rely upon his fellow-men acting lawfully." Id. at 10); Stephen P. Halbrook, "Tort Liability for the Manufacture, Sale and Ownership of Handguns," 6/2 Hamline Law Review 351-382 (1983); Note, "Handguns and Product Liability, " 97 Harvard Law Review 1912 (June 1984); Donald E. Santarelli and Nicholas E. Calio, Turning the Gun on Tort Law: Aiming at Courts to Take Products Liability to the Limit (Washington Legal Foundation; Washington, D.C.; 1982); reprinted at 14 St. Mary's Law Journal 471 (1983). [FN11]. In the second appeal, the court below (Opinion filed June 10, 1996, one Judge dissenting) seems to have intuited its original mistake but adhered to its position by taking refuge in the "law of the case." We respectfully submit that two wrongs do not make a right. [FN12]. See Maryland Annotated Code, art. 3A, section 36-I(h) (1988 Supp.) enacted in response to Kelley v. R.G. Industries, Inc., 304 Md. 124, 497 A.2d 1143, 44 A.L.R. 563 (Md. 1985); and California Civil Code, section 1714.4 (West Supp. 1985), enacted in response to Barker v. Lull Engineering Co., 20 Cal.3d 413, 573 P.2d 443, 143 Cal.Rptr. 225 (1978). [FN13]. Note, "Handguns and Products Liability," 97 Harvard Law Review 1912 (June 1984). [FN14]. Id. at 1928.