morning or honors its distinct pleasure to be in front of you today my name is terence school a i'm an attorney for michael sheehan in his official capacity as cook county sheriff by the order of the court i will grant order i will do our argument for ten minutes  other municipal police agencies liable for any improper access and use of an officer's duty weapon by a third party for which there was no control moreover the issue is whether we will allow this right building to occur or as a result of the very existence of detail than proper training programs on safe from home gun storage against the police agencies it is our position respectfully but the hold the sheriff liable in this case is to make illinois taxpayers insures for each and every improper use of a duty firearm that for whatever reason makes its way to an authorized user in light of the past decisions of this court finding that alleged actions of gun dealers and distributors selling guns into poor areas of chicago were not a proximate cause of the injuries and deaths complained of it seems to us to not be logical to hold the show off liable under the facts of this case and help the plaintiffs in this case the pallies have tried to assert liability against the sheriff based on under the theory of responding secure your mate the main issue when that and the issue in our peel is what about the use of the gun served the purposes of the sheriff mere possession of a tool a tool of one's trade should not be the hinge for wide will be under respond superior there should be some use of that tool in the service of the master serving the masters mission that supports the why ability now here the sheriff because of the clear general foreseeability that improper storage of guns is a dangerous thing trained on storage the mandate of the sheriff's office were that guns should be completely inaccessible now that would be obviously didn't happen here and that's why we're here today now one of the cases that in the materials is that gaffney case there is a chicago police department officer who by his testimony that he had to respond to emergencies on a twenty four seven basis was part of his reason for having his gun accessible in fact he the mode of storage of the gun was to surface master to respond to emergencies the facts in this case are clear in undisputed that a sheriff's lieutenant such as david swann in this case one does not bring his gun to the jail he doesn't use it in his day to day job too he had not touched his gun in nearly a year there was and three that the storage of the gun was supposed to be inaccessible there was nothing about the sheriff's mandate or the sheriff's mission that led to the storage of this gun being accessible it was quite the opposite  well you can officers in all of illinois useful fisa agencies need to use weapons so it's reasonable to have restrictions and to for the sheriffs to to mandate how those guns are used now here  instruction was that the gun be inaccessible that it be properly stored there was nothing about the mode in the expectations of the sheriff's office that the gun be accessible so the common sense of issuing wrist regulations in effect is what's being turned around against the sheriff's office because you took proper safety actions is there evidence in the record to suggest you that god was or was not in the lock box well the facts are clear in this respect the gun was in a gun case it is disputed for purposes of the record whether that case was locked now david swann has testified that about a year prior when the last time he had a gun at the range he locked the gun box with his two other guns his personal weapons brought them home put him put them in his closet up on the shelf i am it was locked the not there now billy swann has testified that the gun box was unlocked for purposes of summary bedroom that was police one was instructed not to go into the parents bedroom it was the one part of the house that they would swan felt was the safest place to store the weapon the gun was unloaded they we don't know where  black pouch somewhere it records unclear as to where they were but the gun was unloaded now the gun the bread they had a mega scene clip in it but that it was unloaded now that it was with two other weapons that david swan had one of the things is after this event david swan had his guns taken away from him by the chicago police department he does not have them to this day yet he continues his work with the sheriff's office for quite some time after that because his job duties did not require whether there was a criminal conviction we can look at billy swan's testimony and i think it's important that this court has said that under the juvenile justice act the proceedings in adjudications there are a kin to a criminal proceeding billy swan was found guilty by the juvenile court judge of involuntary manslaughter in discharge of a firearm we believe it was a criminal act we believe that if you look at his actions that were in the record both from billy swan's testimony understood well as the adjudication that is our record in this matter that it was a criminal act but the actions were reckless i mean this kind of gets us into the proximate cause argument that we also raise in our brief that at the end of the day this gun is sitting in a closed box in a closet in an area where billy swan was not supposed to go it was inert the gun could not harm anybody until billy swan acted on that and i think has a policy reason this case should not turn on the age of billy swan it should turn on what he knew he knew this was a real gun he knew this was riding imo he knew he was loading it he knew that he could hurt or kill exactly i think in both layers we can look at police transactions in the recklessness of those actions the knowing actions that he took as well as the fact that the juvenile court judge found that this was a violation of illinois criminal statutes are fo involuntary manslaughter and reckless discharge of a firearm when the focus that we have to get back to is what was the intent of the employee under respondeat superior david swann had no intent that he was serving the mission of the sheriff if it if it is accepted for purposes of the record that the gun the gun was accessible we will we disputed that we don't put we don't believe that the lock box was unlocked but but with that there david swan was not doing anything in leaving that gun excessive all that sort of the sheriff all it did is lead to us feeling here today being sued he knew and understood that his training was that that gun should be  fact of what david swan did itself is a criminal act in order to overhaul the sheriff liable at the end of the day plaintiffs keep coming back that the sheriff trained on these things we think it's punitive and improper for the sheriff to be faulted for those actions and it would be a bad signal from this court to illinois municipal police agencies throughout the state if training is something that is going to connote a general foreseeability and then liability for all the specific things that happen underneath of that it questions whether there should be training the fact of the matter is officers need guns employees carpenters need tools the possession of the tool itself is not enough have to incur the expense of having safe storage facilities wherever their offices are whether it be a police agency at the jail and so would i say that he had the option of having no burden on his office as ordering the officers to take service with oh well then the guns have to go somewhere so i thought at the first level you would have to have a place you would have to have a place at their place of employment where to put those guns secondary to to the extent that other municipal police agencies or officers may be very remote from their office where they have to go all the way to the police station and then back to get their gun to go back out to where i may have please the court my name is craig livingston i'm pleased this morning to represent bready usa in connection with this appeal on in october two thousand and five some two months after the tr granted summary judgment in this case congress passed the protection of lawful commerce in arms act which has it as as its purpose to protect firearm manufacturers and distributors from lawsuits which seek money damages for harm caused by the misuse of firearms which function function as the zine and intended this case is precisely the kind of case congress sought to prevent ca as all refer to it protects manufacturers and distributors like beretta by prohibiting the bringing of qualified civil liability actions and by requiring the immediate dismissal of those actions it would not protect the manufacturer from a lawsuit in wish there had been an accident a pistol or a firearm is dropped and shoot somebody where it is purely an accident negligence does result in a discharge but the exceptions under the product liability exception of the act refer specifically to allegations in which there's a design defect in design or defect in manufacture so the example i gave could potentially involve a defect in the manufacture of a firearm that discharged when it shouldn't have when it was dropped and when some other handling of the firearm occurred so manufacturing defects would constituted a criminal offense and that is the product liability exception in this case though qualified civil liability action includes criminal or unlawful misuse of a there's no dispute that the action was a third party beliefs one the undisputed facts surrounding billy's actions can lead to no other conclusion but that his actions were at least unlawful under the act even if we set aside for the moment whether or not they were criminal there were several violations of ordinances or possession statutes that were cited in our papers one of which includes discharge unlawful discharge of a firearm within the city limits of chicago a federal possession minor and possession charge as well as illinois possession a charge in connection with one not having a firearm owners identification card all three of these things are conduct which the undisputed facts in the record clearly demonstrate beliefs won by a later without again without even getting to whether or not there was a criminal conviction whether or not we even get to involuntary manslaughter or reckless discharge of a firearm there are these unlawful acts which we are the result of his village will conduct that make the product liability exception in a flexible now unlawful misuse is to find his conduct that violates the statute ordinance or regulation and again that can include things like discharge from the city the record his conduct was such that he knew exactly what he was doing he knew that he was handling a real firearm he knew that he was handling real ammunition he knew that he was loading and unloading that real ammunition in the real firearm he knew that that firearm had the ability to kill or injure someone he knew he was not supposed to be doing what he was doing all of these things taken in their totality demonstrate that correct however he knew he had enough information just in the way he was handling that firearm to have prevented this accident in any number of ways and if we just i see my memory at a time but if we really move to the warnings issues there is he of course would not see the instruction manual had not read that instruction manual but he certainly knew that he was handling a real firearm and could have avoided this accident any number of  ways and there are a number of ways in the instruction manual in which this action could have been avoided there are a number of general safe handling instructions that are right on the front page of the manual there were a number of instructions that explained  anyone who bothered to read it how to completely unload the firearm the warnings issues that the appellate court allowed to go forward relate to whether or not the warnings were sufficient to would have provided billy with enough information to know that he had completely unloaded the firearm and on that point the appellate court was very clear and found that there were explicit repeated instructions to use a court of appeals words as to how to completely on the firearm there were a number of places in the manual in which the user was instructed to remove the magazine put first put the pistol on safe remove the magazine and then clear the final arm if you follow any of those steps i'm sorry spilling a foreseeable user i don't believe he was he's a he's a minor thirteen year old this is clearly and as a court of appeal held clearly an adult product intended only for dolls he could not provide adequate instructions however i don't believe that there was a duty of on beretta to advise of open an obvious dangers of pointing a firearm at another human being and pulling the trigger beretta nonetheless did provide a number of warnings as to safe handling how to thoroughly unload the firearm and cetera but there under that under the law in illinois i don't believe that there is a duty on the part of beretta to warn of the open and obvious thing just of the conduct the billing gaged him and i say i'm done with my time thank you very much that just to make sure that we're on the same page here the appellate court reversed the summary judgment as it pertained to sheen right that's correct and the appellate court reversed as it pertained to the failure to trunk were i know it was not because that statute did not come into play until after the case was actually on appeal but any rate the the appellate court found a question of x so that is still a viable plan for the plain right yes or just so you're cross relieved that only primarily because they thought that this was a military or police weapon and that therefore the standard to look at to determine whether or not the way it was designed that is without having to make a scene disconnect that prevents it from shooting if you take the magazine out with something that wasn't needed p p they be the appellate court seem to think that this was a weapon just made for the military made for the police made according to some sort of special specifications whereas in fact the bread of people admitted this is a commercially available weapon swan the person involved bought this at a gun store this is not something that the sheriff rick that the sheriff ordered in terms of specification so the premise for the appellate courts finding that the gun was simply not unreasonably dangerous does not exist if i can go back to the sheriff's argument for a moment the church first argument to this court was that response yet superior did not apply and i would like to point out to the court that the trial court found there was a question  now pete the sheriffs and in part read his position i think comes down to pretty much to this question of foreseeability and the foreseeability as it relates to this being what they call a criminal act the foreseeability issues i think are governed in part by the various cases we've cited which say where the courts have all said it's it's pretty foreseeable that if you have a con  pennsylvania court koons i think it's almost a magnetic attraction you know that if children see guns they're going to use cons right or wrong matter what rules you have you're going to do it it's foreseeable that you'll have this result we know that this is going to occur because the whole reason for the sheriff's rules creating proper storage for these weapons is because you know that this kind of thing can happen it happens three hundred times a year according to the statistics and those are deaths alone of children used by accidental shootings with guns whether or not this is a criminal act it is important both for use of the the federal munity statute the federal by statute and for the sheriff's argument that it's not foreseeable and the plaintiffs position here criminal act if you're juvenile and you're proceeding under the juvenile court act this court in taylor thirty two years ago noted that we've changed the juvenile court act and we surely made juvenile conduct in the courts more like criminal conduct but the he's not been convicted he was he was adjudicated the delinquent you have a court on the one hand saying we cannot find you criminal and this court would be saying yes but we can't call you criminal for purposes of this and if i can point to the court's attention to statute that he was  right those are the words of the statute that actually surprised me when i read it there's no menswear there's no criminal intent the round if you're reckless you can be found you can be adjudicated delinquent or found guilty if you're an adult so you have a situation here where you have this young man who believes and i think this is now so crucial it seems clear to me it's not clearly proceed counsel he thought he had made this weapon impossible to fire he did not just think it was on loaded which is a premise for some of the other adult when you take the major scene out believe he and his father and about thirty percent of the population think you can no longer fire the weapon and that's because they think that the bullet that's fired is the one at the top of the clip that eat the federal statute which buyers actions against gun manufacturers was intended and i can start with this if i might it was intended in its preamble and you can also tell me it was attended by because of the words of the people who spoke about it in the legislature one it was acted was intended to speak to broader specifically the kinds of cases not brought in one hundred years they were talking about barring the nuisance cases that the cities were beginning to bring against gun manufacturers in the city of gary case that we cited brett it was part of the group of manufacturers there which said that was precisely the type of conduct that this act was looking to buy the nuisance cases the i don't think that that's theory that the gun manufacturers by making so many guns knew that they were going to end up in criminal hands and kill somebody and then in miami and the amicus in support of my side mr shand who was the general counsel for one of the manufacturers and looking at the same language that's used in this statute that excludes certain things from its enforcement talked about or said what we're trying to do is retain the right to the common law action the neck which is factions the product liability actions and then there's an exception to that exclusion for a criminal offense are and that's a long way around to say and i appreciate china's patience with that i know i so i can answer this question when i'm suggesting to the court is that if we look at what the scope of the statute was intended to really block and we look at what seems to be a stated intent to not buy our common law actions when they use the word criminal at that point a criminal offense i would suggest to the court th summary judgment in favor of sheehan that sheen did not have a duty to protect us from billy's criminal acts and then let me just go one step further and then in the appellate court i believe they hold of billy's actions were criminal disagrees with the nuance and the mens rea argument that you just eloquently made i mean is is that the decisive factor no it is not at all and again i have to split the two things up if this court decides it's a criminal offense then the conduct is going to be deemed criminal i suggest that this is specifically the kind of conduct that's foreseeable to the sheriff we know i was foreseeable that foreseeable for the sheriff because that's why the sheriff put his rules in the place to try to prevent this from happening and if you have criminal conduct that's forseeable at least up until this point then the question is whether or not you you can still do it and i believe the cases of say say if you can foresee the criminal conduct and the criminal conduct is intertwined it is the word i would use with with the whole event it's foreseeable and if it's foreseeable then you have a legal causal relationship legally you have proximate cause this is not a situation where somebody stole the gun from someone's house and then used it in a hold up someplace that case is so different because because they're they they took possession of the weapon and they intended to use the weapon in the in the criminal act this is just not that casey did not take possession of this weapon i this this young man was not in violation of the possession statute and i said because possession requires that you want to keep he didn't take this weapon for he told it was just there if the defense is right is that he committed a criminal offense with possession that means as  soon as as soon as i don't have a firearm site owner firearms owners identification card i go in the hallway and one of the police for some reason shows me his weapon as soon as i touch it i've got committed a violation under there and that's not what it's about possession should mean intend to keep he meant to use it and he did not need to use it as a firearm which may be another reason for not enforcing the federal statute it talks about use of the weapon it provides immunity for certain uses of the weapon he wasn't using the weapon and i can make that i had to think that i believe that he thought it was he wasn't using a weapon as a weapon he what he was doing is piracy was concerned it was playing with it as if it was a plastic water pistol because he is a foreseeable user and he is a reasonably foreseeable user and the law is always been that you have to have the warning there to educate a reasonably foreseeable user and here i wonder if it's an either or all the product liability wasn't using it as a gun he through is using it as a toy there's a difference between and we're looking at a thirteen year old boy i can only make this argument because i can do it from the perspective of a thirteen year old boy that everybody knows the sheriff certainly knew would might have access to the gun permit and knew this happens all the time was a real gun but he thought aeration have a gun that's correct but he also thought it was entirely harmless he thought it was a toy he was just to surprised if he picked up his friend's twenty weapon and it had discharged the boy and i'm asking the court to look at it from that perspective and that's true with respect to the federal act as well i don't i think this court can reasonably find that he wasn't using it is a federal act i believe we had in mind people who take cons and use them for for criminal purposes they will shoot somebody they will hold somebody out they weren't looking at a situation where if let's assume he took the weapon and for anybody who's been in the military it happens you need to pound something and he's pounding it using a weapon to pound it into the ground is that a used it's covered by the federal statu particular areas and i have the advantage in this case of the thirteen year old being asked and he specifically said i looked at both sides of the weapon some weapon and all i could see was the name brett i which is about all it's there and he was asked if it had said loaded would it have made a difference and he said it could have and one of our arguments on the warning issue is either that you need to put in both can be done in both have been done across the country you need to put a warning that you can fire with the magazine out or on the top of the chamber and i think i can't bring the weapon into court obviously with security no it says loaded and he said he looked at it i think it was a whole legion of cases that say you cannot look and not see i can use that and turn it in my favor here if you look he would see he would said loaded and he want to he would never pull the trigger we all know that defense counsel knows that defense counsels general count everybody agrees this was just a tragic accident but the question is whether or not somebody is conduct contributed to cause that action and that conduct is the conduct of the deputy and not securing this weapon and the conduct of the i manufacture and not doing something that it has done i'm talking bread us keeping in mind that bretta settled another lawsuit back east we've got that evidence in the record where they agreed that they would put a magazine disconnect or a warning on every weapon like this for the very reason that we've talked at this court about those services so we so we have in terms of the warning in terms of the product defect argument we have a weapon that's defective arguably we consider that that settlement for any purpose and this notice to i'm asking that it be considered can consider for purposes of notice but serious that there may be a situation where a police officer would want to have to make a scene out and yet have a round left in the chamber that he or she could fire the problem with that is twofold one this this weapon is a commercial weapon not a police weapon that's their own people admitted that to thirty years no evidence whatsoever that has that has ever been a factor that the absence of  seem disconnects are bad things and not having a magazine disconnect is a good thing and they're experts and i can't find anything mr harrison the you indicated earlier if this court finds that this was a criminal act you do have problems with the act as it relates to brett or that would only be to the un recently dangerous claim would that affect the duty to warn as well i don't believe so i would have hard time putting out words i don't believe so and the reason i hedged on it is because because the statute uses the word criminal offense and if the statute uses the word criminal offense then i just court's got to address that fact and if this was a criminal act i think the next step is is this the kind this is this kind of back to the congress meant to consider we want to put those words in this very special status right and what i'm asking is does it if we disagree again with that nuance does that effect only be unreasonably dangerous claim or does it affect the duty does not apply when you have a defect of a weapon by design or by manufacture and our position is that the exclusion contains within it the duty or the  the failure to put a warning on the weapon sold designed to fact that manufacturing defect and a warning to fact are all part of the same common law all remedy that the act meant to but survive statute they talk about preventing or bring about barring actions for criminal offenses or on also misuses when they come to the exclusion they leave out the word on lawful mis so the exclusion for which we are trying to take advantage has left out the words on lawful misuse and those words are the find at the end of the federal statute i think it's seventy nine zero three nine and refers to me using a gun or the law says i cannot use a gun it would specifically address the firearm owners identification act so that you can there's an exclusion for product liability and negligence cases there's an exception to th warning hand design defect are really the same things in fact i think this court blew equated design and warning as being part of the same here this cordon bleu to look to either a manufacturing defect where the product itself has got something morning justices my name is daniel gallagher i'm also appearing on behalf sure but i thank you for your time and for your consideration and of this case the plaintiff existing this court to impose liability on the sheriff or acts of a third party over which the sheriff had no control it is asking further that it impose liability the only way could impose liability would be through finding a duty and that duty would have to be come through the respond yet secure your so that's why i respond you know it's your enters into this with respect to the issue of whether remove the race the criminality of police act under the involuntary manslaughter act statute a person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if he acts  what if zack's whether lawful or unlawful are such that are likely to cause of death or are done recklessly there's no question that in this particular case what billy swan did was totally reckless and irresponsible know i don't think so i think that what he did that point was he attempted to eliminate any foreseeability that there might be that a weapon could hurt somebody he didn't assume anything well reduce  or eliminate it by training it out training it out so wouldn't be foreseeable to the sheriff after he did all the steps and this was a rigorous training program there's no question about this program it was done year after year every year if someone had a weapon they had to go to the range they had to go through the safety program they had to go through all the programs in order certified but the point is even if this man had quit his job word been fired he still could have happened there's nothing by imposing liability upon the sheriff under the circumstances that second to make anybody safer because the sheriff did everything he possibly could to avoid this the sheriff himself did nothing that was negligent or improper and and old and the fact is though he said he knew that he wasn't supposed to be his parent's bedroom billie knew that he wasn't supposed to go near this gun billy knew that guns could kill billie knew this was a real gun billy knew that it was low he had loaded the gun and billy thought he unloaded  so that he knew this was a real rotten and every thirteen year old knows that even if you have a twenty weapon if it the charge is something you never fate you never pointed at anybody and pull the trigger and you know what billy did was he may not have intended to kill the shon man but he unintentionally killed them by doing a reckless act which makes his conduct criminal and under the circumstance it would be unfair to impose a burden i'm sure if the other part of this would be that this say if the sheriff's diligence in creating a rigorous safety program for handling storage of firearms is seen as creating the non delegate will duty to protect against the act of third persons there will be no incentive for any public entity or any employer to have a safety program or a training program because it will be used against them and turned against them and said well then you could foresee that someone would take the hammer from your carpenter's tool box and hit someone in the head with it or use it as a weapon  opening the door will without question impact public entities but it will also in the end impact the general public will have to pay for any liability judgments against the public entities and the sheriff extending liability to sheriff does not make anyone safer or serve to prevent a tragedy like this from happening again that is because there was really nothing more than the sheriff could have done in a reasonable sense in this case he wanted he trained and he disciplined he sought discipline against mr swan for not storing the weapon appropriately it would be inappropriate and unfair to impose liability on the sheriff and since his actions were neither the cause in fact sheriff's actions are not the cause and effect nor should they be the legal cause of considered to be the legal cause of the death of joshua thomas thank you very much  i thank you just a few points that mr ross x rays i'd like to discuss briefly and i'll start with the the product liability exception of whether or not failure to warn claims are included the product liability exception is significant for what it says and for what it doesn't say it does say that defects in design and manufacture provide potential exceptions onder the product liability exception in other words the exception to the exception but conspicuous by its absence is any reference to failure to one claims failure one claims are universally considered a separate and distinct area of circ liability here in illinois and elsewhere it's very clear there were designed effects several theories to prove that manufacturing defects and failure to warn the plain language of the feel ca does not include failure to warn claims however even if it did the fact that there was in his deposition that billy's conduct was the lish will as well as case law here in illinois including taylor versus jerry's ridgewood and a case recent case that we cited from pennsylvania watkins case which is on all fours with this case in which  conduct is found by virtue of the user going through all the necessary physical steps to operate the gun even if it was unintended that it discharge the the peel ca is not limited to me liability suits and all you need to do is go to the findings to see several findings in which there is no reference at all to mean a civil cases but in fact reference to lawsuits lawsuits being commenced against manufacturers that section seventy nine zero one eight three seventy nine zero one a five also discusses lawsuits against manufacturers for criminal and unlawful misuse there's no reference at all to municipal liability litigation while there are several findings that do make reference to those kinds of cases the plain language of a number of findings and several of the purposes have no such limitation with respect to the statistics that mr arrest sec cited the study the one study that's in the record that relates to this issue was flawed largely because the twelve hundred respondents that mr terror i made reference to but in his own words was reparative representative sample of the united states population it was not focused on purchasers a semiautomatic pistols and when we focus on the universe of consumers we must focus as a court of appeal found on that universe  in addition to that study that found thirty four point eight percent of respondents either didn't know removing the magazine would still allow the pistol fire or said no mr tear emitted that only twenty eight percent of those respondents were in gun owning households so again that this study is flawed in that it did not focus on the correct population to sample what is your position with regard to settlement well the settlement the only evidence it's in the record is a line or two in the testimony of mr ray's the general counsel of beretta in which he testified that they added a warning because it was a request of the pla as part of a settlement there was no testimony in the record that cited as to any other reason for that in fact mr ray testified that the same information is conveyed in the instruction manual in a number of different places  five eight five one