G An Analysis of the Legal Issues Attendant to the Marking, Inerting, or Regulation of Explosive Materials

Alan L. Calnan and Andrew E. Taslitz

This background paper was prepared by two attorneys who served on the Committee on Marking, Rendering Inert, and Licensing of Explosive Materials. Given the limited legal precedents addressing the technologies being considered, some of the analysis of the legal ramifications is necessarily speculative.

Some of the legal issues this paper addresses may lie outside the explicit statement of task (Appendix B), but this background paper was written to help the committee better understand the broader context in which its work will be considered. The paper provides the opinions of the authors and does not represent the official position of either the full committee or the National Research Council. It is the main text of the report that provides the views of the full committee.

CONTENTS

NOTE: Professor Calnan (Southwestern University School of Law, Los Angeles, CA 90005) would like to thank Jeff Feinberg, Misty Murray, Andreas Chialtas, Marcy George, Sara Avakian, and Nurit Robin for their extraordinary contributions to the preparation of this appendix. Professor Taslitz (Howard University School of Law, Washington, DC 20008) would like to express his appreciation to Vicky Byrd, Crystal Collier, Crystal Morales, Vernita Fairley, and Mekka Jeffers for their valuable research assistance on this project.



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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors G An Analysis of the Legal Issues Attendant to the Marking, Inerting, or Regulation of Explosive Materials Alan L. Calnan and Andrew E. Taslitz This background paper was prepared by two attorneys who served on the Committee on Marking, Rendering Inert, and Licensing of Explosive Materials. Given the limited legal precedents addressing the technologies being considered, some of the analysis of the legal ramifications is necessarily speculative. Some of the legal issues this paper addresses may lie outside the explicit statement of task (Appendix B), but this background paper was written to help the committee better understand the broader context in which its work will be considered. The paper provides the opinions of the authors and does not represent the official position of either the full committee or the National Research Council. It is the main text of the report that provides the views of the full committee. CONTENTS     I. INTRODUCTION   218     A. Background   218     B. Scope and Organization   218     C. Applicability of Legal Issues   220     D. History of Explosives Regulation   220     E. Explosives and the Current Legal Environment   222 NOTE: Professor Calnan (Southwestern University School of Law, Los Angeles, CA 90005) would like to thank Jeff Feinberg, Misty Murray, Andreas Chialtas, Marcy George, Sara Avakian, and Nurit Robin for their extraordinary contributions to the preparation of this appendix. Professor Taslitz (Howard University School of Law, Washington, DC 20008) would like to express his appreciation to Vicky Byrd, Crystal Collier, Crystal Morales, Vernita Fairley, and Mekka Jeffers for their valuable research assistance on this project.

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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors     II. CRIMINAL PROSECUTIONS   224     A. Detection Markers   224     1. Was There a Search?   225     a. The Waste-Heat Approach   226     b. The Canine-Sniff Approach   227     c. The Technological Approach   229     2. Administrative Searches   231     3. Stop-and-Frisk Exception   236     B. Identification Taggants   237     III. CIVIL LIABILITY   240     A. Introduction   240     B. Detecting Explosives, Preblast   241     1. Constitutional Torts   241     2. Invasion of Privacy   243     a. Intrusion upon Seclusion   244     b. Publication of Private Facts and False Light Privacy Invasions   245     3. Defamation   246     4. Intentional Torts   247     a. Battery   247     b. False Imprisonment and/or False Arrest   247     c. Intentional Infliction of Emotional Distress   248     d. Trespass to Chattels/Conversion   249     e. Privileges and Defenses   249     5. Negligence   250     6. Ultrahazardous or Abnormally Dangerous Activities   252     a. Ultrahazardous Activities   252     b. Abnormally Dangerous Activities   253     7. Products Liability   254     a. Bad Product Theories   254     i. Negligence   254     ii. Implied Warranty of Merchantability   256     iii. Strict Products Liability   256     b. Bad Representation Theories   264     C. Identifying Bombers, Postblast   265     1. Trespass to Land and Nuisance   266     2. Trespass to Chattels/Conversion   267     3. Negligence   268     4. Ultrahazardous or Abnormally Dangerous Activities   268     5. Products Liability   269     a. Design Defects   270     b. Marketing Defects   271     c. Proof Problems   272

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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors     D. Inerting Common Explosive Chemicals and Regulatory Alternatives   272     1. Products Liability   273     a. Manufacturing Defects   273     b. Design Defects   274     c. Marketing Defects and Representational Liability   274     d. Breach of Contract and Warranty   275     2. Negligent Entrustment   275     3. Statutory or Regulatory Negligence   277     a. Effect of Noncompliance: Negligence Per Se   277     b. Effect of Compliance   278     E. Controlling Precursor Chemicals   279     1. Common Law Responsibilities   279     2. Voluntary Programs   280     3. Statutory or Regulatory Responsibilities   281     IV. REGULATION   282     A. Introduction   282     B. Constitutional Constraints on Federal Regulation   283     1. Federalism: The Commerce Clause   283     2. Federalism: The Tenth Amendment   288     3. Federalism: The Supremacy Clause and Preemption   291     4. Fairness: Equal Protection   292     5. Fairness: Substantive Due Process   294     6. Fairness: The Takings Clause   295     C. The Relationship Between the Regulatory and Tort Systems   297     1. Regulatory Compliance Issues Within the Tort System   298     a. Minimum Safety Standards   298     b. Dispositive Safety Standards   298     i. Regulatory Compliance   299     ii. Government Contractor Defense   299     iii. Contract Specification Defense   301     c. Federal Tort Claims Act Immunity   302     2. Federal Preemption Revisited   303     3. Regulation/Compensation Statutes   304     V. SUMMARY AND CONCLUSIONS   305     NOTES   306

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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors I. INTRODUCTION A. Background The authors of this appendix are both law professors and members of the committee. They were included in this study to identify and analyze the many legal issues that surround the technologies and regulatory alternatives currently within the committee's consideration. In addition to drafting the "Legal Issues" sections for Chapters 2 through 5 and preparing this appendix, the authors attended committee meetings, participated in all aspects of committee fact finding and decision making, and provided advice concerning the legal consequences of the committee's proposals. Contained within this appendix is a discussion of the legal questions that helped to shape the committee's recommendations and that ultimately must be considered by government policymakers before these proposals are implemented. B. Scope and Organization The legal issues raised by the broad statement of task for the Committee on Marking, Rendering Inert, and Licensing of Explosive Materials are numerous, complex, and far-reaching. These issues span a diverse array of legal fields, including criminal law, constitutional law, constitutional criminal procedure, tort law, evidence law, and administrative or regulatory law. The purpose of this legal appendix is to identify, organize, refine, explain, and analyze these issues so as to make clear their role in the viability, feasibility, and practicability assessments offered by the committee in the main text of this report. All of the legal issues addressed in this section are framed, however broadly, by the terms of the Terrorism Prevention Act. In accordance with the act, the committee was asked to examine (1) the viability of adding tracer elements to explosives for the purpose of detection, (2) the viability of adding tracer elements to explosives for the purpose of identification, (3) the feasibility and practicability of rendering inert common chemicals used to manufacture explosive materials, and (4) the feasibility and practicability of imposing controls on certain precursor chemicals used to manufacture explosive materials. In short, the committee's charge was to consider the wisdom of either physically altering explosive materials or regulating their manufacture, distribution, and sale as a means of preventing illegal bombing incidents and/or aiding in the detection, capture, and prosecution of criminals who create and detonate illegal explosive devices. These alternative approaches to curbing the terrorist bombing threat create three general types of legal problems. These categories of legal analysis, in turn, provide a useful taxonomy for addressing the issues raised in this appendix. First, because a central purpose of these approaches is to catch and prosecute bombers,

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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors it is critically important to determine whether the tactics used are legal, and whether or to what extent they may be legally introduced into criminal prosecutions to help convict such culprits. Accordingly, the following section of this appendix—entitled "Criminal Prosecutions"—reviews the possible legal obstacles that may inhibit the criminal justice system's use of taggants or precursor controls as instruments for combating terrorism. Second, any new product, activity, or program that has the potential for causing physical or economic injury to others is bound to raise legal liability concerns. In theory at least, the technologies and regulatory protocols addressed in the committee's report may have an adverse impact on those who make, distribute, store, sell, use, or are merely "around" controlled, inerted, or tagged explosive materials. Thus, in the third section denominated "Civil Liability," the analysis seeks to determine, for each approach under consideration, who can sue whom for what, what theories of recovery and defenses are likely to be raised, and whether such lawsuits are likely to be successful. Finally, since the committee was charged to evaluate the feasibility of regulatory controls for explosive materials or precursor chemicals, the fourth section of this appendix—"Regulation"—analyzes both the constitutionality of such regulatory techniques and the alternative ways in which any new regulatory scheme might interface with the preexisting tort system. Of course, no study as ambitious as the one undertaken by the committee could possibly cover all the intricate details of all the thorny questions encompassed by it. For example, the handling, storage, and disposal of certain tracer chemicals would likely be subject to some sort of regulation by a number of agencies, including the Bureau of Alcohol, Tobacco, and Firearms (ATF), the Environmental Protection Agency (EPA), and the Occupational Safety and Health Administration (OSHA). Likewise, the shipment and usage of tagged explosives would likely fall within the regulatory purview of such agencies as the Department of Transportation (DOT) and the Mine Safety and Health Administration (MSHA). Besides raising these regulatory issues, the adoption of tagging or inerting programs may present a host of other legal questions, ranging from insurance coverage to intellectual property protection. These considerations, though not insignificant, are too subtle, speculative, or tangential to warrant extended analysis here. Accordingly, the ensuing analysis focuses on the most important issues that are sure to have a substantial impact on the evaluation of the tracer technologies and regulatory controls that are the subject of this report. With this in mind, this appendix concentrates on identifying the key criminal, civil, and regulatory concerns that each approach is expected to engender, and gives special attention to the constitutional, evidentiary, and doctrinal impediments that may negate or ameliorate their viability, feasibility, or practicability. Although some of the legal principles applicable to this task are set forth in codes, regulations, or constitutional provisions, much of the analysis in this appendix is based on case law precedent. A number of the issues that are discussed—like those involving tort liability—depend primarily on an analysis of

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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors state law. Because tort law varies from state to state, it is not uncommon for different state courts to adopt conflicting approaches to some issues. Where this is true, this appendix does not attempt to summarize the law in every state, but evaluates the legal issues using the prevailing, majority viewpoint. Minority positions are highlighted only when they constitute a trend or are likely to be particularly compelling in the explosives context. Even where a uniform federal law applies—as is the case with constitutional questions—courts (both state and federal) frequently interpret the law differently. In such situations, the conflict is noted and an attempt is made to distinguish or reconcile the competing cases. C. Applicability of Legal Issues In essence, the committee's task was to determine the viability, feasibility, and practicability of the tracer technologies and regulatory controls mentioned above. To perform this function, the committee identified, quantified, and evaluated the respective costs and benefits for each approach. The legal analysis provided in this appendix was part of that process. For example, tracer technologies may be a benefit to law enforcement if the evidence they yield is both legally admissible in court and relevant to establishing the identity and/or guilt of the accused bomber. If, however, such technologies create insurmountable legal obstacles or loopholes that impede the prosecution of terrorists, then they would be viewed as posing a significant, albeit noneconomic, cost to law enforcement. The same type of calculus applies in the areas of civil liability and regulation. Any lawsuits precipitated by tracer technologies would present an obvious financial cost to those who make, distribute, store, sell, or use tagged explosives. And, while regulatory controls on explosive chemicals may have the beneficial effect of deterring some criminals from making bombs, such controls also may present significant costs to taxpayers and law enforcement if they are burdensome to implement and/or are susceptible to constitutional attack. The object of the ensuing discussion is to point out and critically assess the legal costs and benefits that are likely to attend each of the approaches under the committee's consideration. D. History of Explosives Regulation The first modern, federal explosives legislation, known as the Federal Explosives Act,1 was adopted by Congress during the First World War. Administered by the Department of the Interior, this act could only be invoked upon declaration of war and thus was rarely put into effect. Congress created the first perennial explosives legislation as part of the Civil Rights Act of 1960.2 This act regulated, among other things, the importation, manufacture, distribution, storage, and possession of explosives, blasting agents, and detonators.3 Although violators could be subject to criminal punishment, the act's proof requirements were so burdensome that the statute was largely ignored by prosecutors and criminals alike.

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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors During this same period, Congress had enacted a wide variety of other statutes that were scattered piecemeal throughout the United States Code.4 These laws, which mostly restricted the use of explosives in various contexts, were not administered by a single federal agency but were implemented and enforced by a number of regulatory bodies.5 Reacting to these deficiencies, Congress passed Title XI of the Organized Crime Control Act,6 or as it is now known, the Federal Explosives Law.7 Like the earlier Civil Rights Act, the Federal Explosives Law controls virtually every stage in the life of an explosive. It applies to anyone who imports, manufactures, deals in, purchases, uses, or stores explosive materials.8 It establishes licensing and permit restrictions for buyers, sellers, and users of explosives.9 It prohibits the sale or distribution of explosives to unauthorized persons in unauthorized locations.10 It creates a record-keeping protocol that tracks the acquisitions and dispositions of such materials.11 It sets forth a regimen of rules governing the storage of explosives.12 And it lists a battery of penalties that may be used against those who violate the statute's substantive provisions. Implemented exclusively by the Department of the Treasury through the ATF, the Federal Explosives Law remains the most comprehensive explosives statute in force today. As is mentioned above, however, the Federal Explosives Law is not the only form of federal explosives regulation. A number of other federal agencies, under the auspices of a bevy of additional statutes, share responsibility for controlling these dangerous commodities. The DOT regulates the transportation of all explosive materials over the public highways.13 OSHA regulates the safety and health of employees who manufacture explosives and who use them in construction projects.14 While the MSHA controls the use of explosives in all mining activities, the EPA regulates the handling and disposal of commercial explosives.15 Recently, the United States formally ratified the International Civil Aviation Organization (ICAO) Convention, which requires all participating countries to tag their sheet and plastic explosives with a detection tracer.16 The treaty is expected to become operative sometime in 1998. Besides these laws, there are very few federal controls on other materials that may be used to construct explosive devices. Although regulations implementing the Federal Explosives Law establish separation distances between ammonium nitrate and explosives or blasting agents,17 there currently is no federal statute regulating the manufacture, distribution, purchase, sale, or use of this compound. Similarly, no federal laws require the inerting of ammounium nitrate or other explosive chemicals, nor are any restrictions placed on the distribution of common precursor chemicals like nitric acid or urea. Most pertinent for the instant inquiry, there is at present no federal mandate that commercial explosive products, chemicals, or precursors be tagged with identification or detection tracers. Explosives regulation at the state level is even less uniform and comprehensive. Since the passage of the Federal Explosives Law, only 21 states, as well as Puerto Rico, have enacted statutes that require a license or permit for all purchases

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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors of explosives.18 Of these states, California and Oregon are the only two that impose a seven-day waiting period before issuing a permit.19 Some states have adopted good character and competency requirements,20 a few impose storage regulations,21 and some have record-keeping requirements,22 while others mandate that their explosives be marked.23 States that do not have licensing regulations follow the requirements of the federal law.24 No state currently requires that explosives be tagged with identification or detection tracer elements or that explosive materials be rendered inert. However, a few states have adopted regulations restricting the sale, transportation, or use of ammonium nitrate and other precursor chemicals.25 E. Explosives and the Current Legal Environment Obviously, all of the existing explosives regulations, and those discussed in the committee's report, are designed to accomplish two complementary objectives: (1) reduce the number of bombing-related injuries (both by requiring or encouraging manufacturers to make safer products and by deterring prospective criminals from acquiring the materials necessary to make bombs) and/or (2) assist law enforcement in catching and successfully prosecuting those who instigate them. To evaluate the efficacy of the proposed technologies and regulatory controls in furthering these ends, it is first necessary to determine how well the criminal justice and tort systems currently address these problems. In criminal prosecutions, an important element of the state's burden of proof is to identify the defendant as the person who committed the crime. This is not difficult in cases where there is eyewitness testimony. However, if no eyewitnesses are discovered, circumstantial evidence must be used to connect the defendant to the crime. Often, the most compelling circumstantial evidence of the defendant's agency comes from the bomb scene itself. The materials used to construct the bomb frequently are scattered in bits and pieces around the point of detonation. Because these materials typically contain unique design characteristics or distinctive proprietary information, they can be used by investigators to identify the seller and purchaser, or to search for matching materials at the residence or workplace of the defendant. Relying on this type of evidence, how successful are law enforcement officials in tracking down and convicting criminal bombers? Unfortunately, the committee was unable to obtain from either state or federal law enforcement agencies any statistics that would shed light on this question. It is known that the number of criminal bombing incidents decreased 18.5 percent from 1994 to 1995 (the latest year for which statistics are available).26 However, it is unclear both what percentage of these bombing cases resulted in the apprehension and arrest of a suspect, and what percentage of these suspects ultimately were convicted of explosives-related crimes. Statistics of this sort have been released by Switzerland, which is one of the few countries to require that its domestically manufactured explosives be marked

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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors with identification tracers.27 There were 258 bombing incidents in Switzerland between 1984 and 1994.28 Of this total, 191 incidents involved untagged explosives. The solve rate for these cases was 16.2 percent. In the 63 cases where tagged explosives were used, Swiss law enforcement officials were able to identify the culprit 44.4 percent of the time. However, for reasons stated in the main text of the committee's report, and which will be addressed further in this appendix, the Swiss experience may have limited relevance to the problem of identifying and prosecuting bombers on U.S. soil. In tort cases, the plaintiff generally is required to prove that the defendant owed her a duty of care, that the defendant engaged in an activity or manufactured a product in some substandard way, and that the defendant's conduct caused her personal injury. As discussed below, a person injured in a bomb blast often will bring a civil suit not against the criminal, who is likely to have little money or insurance, but against those who manufactured, distributed, stored, or sold the explosive used by the bomber. Under current law, such a plaintiff typically faces two major impediments: identifying the defendant as the one who committed the tortious act, and convincing the court that the defendant was both duty-bound to prevent the explosion and causally responsible for failing to do so. These issues are addressed at greater length below. For now, it is sufficient to note that these proof problems are serious obstacles to any civil litigant who seeks to hold entities or individuals, other than the bomber, liable for her injuries. Nevertheless, because the outcomes in large tort cases are highly unpredictable, and because the perception of potential liability—though often unfounded—is frequently a significant factor in corporate decision making, one cannot predict with much certainty the extent to which the tort system will encourage members of the explosives and chemicals industries to voluntarily develop and implement technologies and/or programs that will counteract the terrorist bombing threat. Because relatively few terrorist bombing attempts have been directed against U.S. citizens, only a handful of lawsuits of this sort have been instituted in this country. Several tort suits were filed, and successfully litigated, against Pan American World Airways after flight 103 was downed by a terrorist bomb over Lockerbie, Scotland, in 1988.29 However, in lawsuits arising out of the Oklahoma City and World Trade Center bombings, plaintiffs have yet to prevail. In Gaines v. ICI Explosives USA, Inc.,30 the United States District Court for the Western District of Oklahoma dismissed a federal class action lawsuit filed by the Oklahoma City bombing victims against an ammonium nitrate fertilizer manufacturer, reasoning that the maunufacturer was not responsible for the unforeseeable, criminal misuse of its product.31 The Gaines case is currently on appeal. Relying on Gaines and other authority, the United States District Court for the District of New Jersey in Port Authority of New York and New Jersey v. Arcadian Corp.32 recently dismissed another lawsuit instituted against a fertilizer manufacturer, this time by the Port Authority of New York and New Jersey in the wake of the World Trade Center bombing. Finding that the bombing was objectively

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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors unforeseeable and was brought about solely by the intentional acts of the bombers, the court held that the plaintiff failed to establish both the manufacturer's duty and its proximate causal connection to the explosion. It is against this prevailing backdrop—of criminal, civil, and regulatory law—that the proposed technologies and regulatory alternatives must be analyzed and evaluated. II. CRIMINAL PROSECUTIONS A. Detection Markers The Fourth Amendment to the United States Constitution protects the ''right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures …."33 The amendment serves one primary function: limiting the discretion of police and government agents to violate liberty, privacy, and possessory rights.34 The overarching command of the amendment is that all searches and seizures be "reasonable." "Reasonableness" is a product of balancing. The Court weights the state's interests against the individual's interest to determine whether a warrant is necessary, what level of suspicion is necessary (e.g., "probable cause"), and whether the police have otherwise behaved properly. The Court does not usually balance these interests on a case-by-case basis. Rather, it engages in balancing to craft a new rule for future cases fitting into a certain category. In subsequent cases of that category, it applies the rule to the facts to determine whether police acted reasonably. This process is known as "categorical balancing." For example, a minimally intrusive "pat-down" of a suspect's outer clothing to feel for weapons is justified on mere reasonable suspicion that a suspect is armed, rather than on the probable cause that would be required for a more intrusive, full-blown search. If a court finds reasonable suspicion on particular facts, the pat-down or "frisk" will, therefore, likely be found reasonable.35 Although all searches must be reasonable, the second clause of the Fourth Amendment imposes more specific requirements for searches pursuant to a warrant: "[N]o warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized."36 This clause makes clear that searches with a warrant are permitted only where there is probable cause. But the clause does not say when, if ever, a search or seizure requires a warrant in the first place. Nor does the amendment spell out what level of justification or other requirements are necessary to render a warrantless search or seizure reasonable. Nevertheless, case law supports two generalizations: If government actors engage in a traditional law enforcement search or seizure, then the warrant clause applies. The warrant clause requires a warrant or a recognized exception to the warrant requirement as well as reasonable government

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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors conduct. The reasonableness of the government actors' conduct is evaluated by balancing the government's interests against the individual's interests. If instead government actors engage in a search or seizure in order to further a special government need—a need unrelated to the quest to gather evidence for purposes of a criminal prosecution—the warrant clause does not apply. The search or seizure is evaluated only under the reasonableness clause, which requires only reasonable government conduct. Once again, the reasonableness of the government actors' conduct is evaluated by balancing the government's interest against the individual's interest.37 Regardless of the circumstances, then, courts must evaluate Fourth Amendment claims by the categorical balancing process noted above. Numerous factors guide this balancing process, but four factors receive particular attention by the courts: (1) the degree of intrusiveness of the search or seizure; (2) the magnitude of the state's interest, for example, the magnitude and frequency of terrorist attacks; (3) the availability of reasonably effective but less restrictive alternatives; and (4) the effectiveness of the search in reducing the threat.38 If government actors engage in an unreasonable search or seizure, two primary remedies are often available: first, exclusion (suppression) of the evidence wrongfully obtained at any criminal trial of the person whose interests have been infringed; and, second, a civil claim for a monetary award as damages.39 Suppression of evidence at a criminal trial renders the first of the committee's goals—recommending ways to deter terrorist acts—more difficult and renders the second of its goals—recommending ways to raise the likelihood of apprehending and convicting terrorists actors—impossible. The Fourth Amendment's prohibition against "unreasonable" searches and seizures does not apply at all, however, unless there is first a "search" or "seizure."40 With detection methods designed to identify explosives preblast, whether or not those methods involve detection markers, there is a serious question whether under some circumstances a search has even taken place. Absent a search or seizure, government actors will be free to use explosive detection methodologies without concern about Fourth Amendment limitation. 1. Was There a Search? A "search" is a governmental invasion of a "reasonable expectation of privacy."41 "Privacy" includes "both being in private—doing what one chooses to do, with whom one chooses, without intrusion—and having in private—preserving what one treasures, or merely possesses, unexposed to the world."42 It is unclear what test the Supreme Court uses to determine whether a privacy expectation is reasonable. At times the court seems to view reasonableness as a majoritarian concept: would most Americans accept a privacy expectation as reasonable? At other times, the Court seems to view the question as normative: Would recognition that a privacy expectation is reasonable serve the values and

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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors     agency has not been proven. See Snider v. Bob Thibedeau Ford, Inc., 202 N.W.2d 727 (Mich. Ct. App. 1972) (technical brake problem makes either manufacturer or retailer liable); see generally Summers v. Tice, 199 P.2d 1 (Cal. 1948). 346.   "Enterprise liability exists where (1) the injury-causing product was manufactured by one of a small number of defendants in an industry; (2) the defendants had joint knowledge of the risks inherent in the product and possessed a joint capacity to reduce those risks; and (3) each of them failed to take steps to reduce the risk but, rather, delegated this responsibility to a trade association." See Burnside v. Abbott Labs., 505 A.2d 973, 984 (Pa. Super. Ct. 1985). 347.   See generally KEETON ET AL., supra note 167, § 103, at 714. 348.   The committee discussed the possibility of point-of-sale restrictions for bagged ammonium nitrate (AN) and for bulk AN products. Specifically, the committee found difficulties with completely separating the markets for explosive-grade prilled ammonium nitrate and agricultural-grade ammonium nitrate fertilizer. This does not mean, however, that those doing business in these related industries may distribute their products indiscriminately without fear of legal reprisal. Indeed, even without further regulatory restrictions, distributors of bulk AN are held to a number of substantial legal duties. Shippers and storers of explosive-grade AN, and to a slightly lesser extent agricultural-grade AN, are most likely engaged in ultrahazardous or abnormally dangerous activities, and so could be held strictly liable if mishaps occur. Even if not held to such a heightened standard of care, these enterprises could be found responsible for negligently handling potentially dangerous materials of this sort. For example, if an explosive-grade distributor knowingly sold its AN to a person claiming to be a farmer, but who turned out to be a terrorist, she might be held responsible for the foreseeable injuries caused by the terrorist's misuse of the product. Or, if the distributor failed to properly secure its bulk explosive-grade AN, which is then stolen by employees or others and sold into an underground market, she may be liable for damages arising from her omission. Of course, in each case, the plaintiff would have to survive the sticky thicket of proximate cause, but if she is successful, liability for wrongful distribution is at least a real possibility. Should Congress elect to adopt regulatory controls on the distribution of bulk AN, the distributive responsibilities of bulk AN dealers would take on an additional, statutory dimension. As noted above, violation of the statutory proscription may itself give rise to a claim of negligence per se. So if, in defiance of an applicable agency regulation, an explosive-grade AN seller were to market her product to agricultural suppliers, who indiscriminately supplied the explosive to criminals, her regulatory breach may be punished by those harmed by her transgression. Yet before even this type of liability could attach, the victim would have to establish both her protected status under the law and the controlling causality of the distributor's regulatory misconduct. 349.   See OWEN ET AL., supra note 296, at 603-04; see also Harrington and Richardson, 743 F.2d 1200 (7th Cir. 1984) (intervening criminal act relieves gun manufacturer of liability); Cross v. Wells Fargo Alarm Servs., 412 N.E.2d 472 (Ill. 1980) (security guard had no duty to protect victim from attack, which occured 15 minutes after contractually stipulated guarding time since contractual duty had expired); Bridges v. The Kentucky Stone Co., Inc., 425 N.E.2d 125 (Ind. 1981) (theft of explosives from storage held superseding cause of subsequent explosion); Gerace v. Holmes Protection of Philadelphia, 516 A.2d 354 (Pa. Super. Ct. 1986) (defendant installed and maintained burglar system; held no duty owed to plaintiff to protect from theft). 350.   See Hollenbeck v. Selectone Corp., 476 N.E.2d 746 (Ill. App. Ct. 1985) (maker of mobile pager promoted product as suitable for police agencies); Klages v. Gen. Ordinance Equip. Corp., 367 A.2d 304 (Pa. Super. Ct. 1976) (mace product advertised as capable of stopping assailants in their tracks). 351.   See Bridges, 425 N.E.2d at 127 (theft of dynamite); Bottorff v. Southern Constr. Co., 110 N.E. 977 (Ind. 1916) (larceny of blasting cap); King v. R.G. Indus., Inc., 451 N.W. 2d 874 (Mich. 1989) (criminal misuse of handgun); Forni v. Ferguson, 648 N.Y.S.2d 73, 74 (N.Y. App. Div. 1996) (assault assailants); Washington State Univ. v. Indus. Rock Prods., Inc., 681 P.2d 871, 874 (Wash. Ct. App. 1984) (employee stole explosives).

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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors 352.   See Doss v. Apache Powder Co., 430 F.2d 1317 (5th Cir. 1970) (applying Texas law, dynamite manufacturer may have duty to warn dealers or end users of the dangers inherent in the use of its product); Crowther v. Ross Chem. and Mfg. Co., 202 N.W.2d 577 (Mich. Ct. App. 1972) (glue manufacturer may be held liable for failing to warn of dangers attendant to sniffing its product). 353.   See Toups v. Sears, Roebuck and Co., Inc., 507 So. 2d 809 (La. 1987) (inadequate warnings of storage of flammable liquids near water heater); Midgley v. S.S. Kresge Co., 127 Cal. Rptr. 217 (Ct. App. 1976) (failure to give adequate instructions for handling telescope); Canifax v. Hercules Powder Co., 46 Cal. Rptr. 552 (Dist. Ct. App. 1965) (inadequate warning of fuse time). 354.   See Hall v. E.I. du Pont de Nemours & Co., 345 F. Supp. 353 (E.D.N.Y. 1972) (warning may have prevented misuse of blasting caps; practical remedy of labeling each cap in light of great risk not unreasonable); Elsroth v. Johnson & Johnson, 700 F. Supp. 151 (S.D.N.Y. 1988) (no duty to warn of criminal misuse, but noted defendant did warn not to use if any of three tamper-resistant features on aspirin bottle were breached); see also Suchomajcz v. Hummel Chem. Co., 524 F.2d 19 (3rd Cir. 1975) (chemical maker failed to warn of propensities of chemicals sold to third-party fireworks manufacturer, who in turn distributed the fireworks illegally). 355.   See Hauter v. Zogarts, 534 P.2d 377 (Cal. 1975) (en banc) (misrepresentation of "golfgizmo" device as "Completely Safe"; claim that "Ball Will Not Hit Player"); St. Joseph Hosp. v. Corbetta Constr. Co., 316 N.E.2d 51 (Ill. App. Ct. 1974) (manufacturer of wall paneling misrepresented product's flame spread rating); see generally RESTATEMENT (SECOND) OF TORTS § 402B (1965) (one who sells a product and makes a misrepresentation of fact concerning quality or character of product is subject to liability for physical harm caused by reliance upon misrepresentation without doing so fraudulently or negligently). 356.   See Graulich Caterer Inc. v. Hans Holterbosch, Inc., 243 A.2d 253 (N.J. Super. Ct. App. Div. 1968) (breach found where food products were altered by microwave cooking method); see also ARTHUR ROSETT, CONTRACT LAW AND ITS APPLICATION 763 (4th ed. 1988) (if product deviates from specifications, maker may be held liable to buyer for financial equivalent of expected performance plus any consequential damages); see generally E. ALLEN FARNSWORTH, CONTRACTS § 12.9, at 880-81 (2d ed. 1990) (consequential damages include injury to person or property caused by breach). 357.   See U.C.C. § 2-314 (1978) (implied warranty that goods shall pass without objection in the trade, be of average quality, be fit for ordinary purpose, etc.). 358.   See id. § 2-712 (after breach, buyer can recover damages for the cost of purchasing substitute goods); id. § 2-715 (consequential damages are any losses sustained by buyer that seller anticipated or should have foreseen; also any injury to person or property caused by breach of warranty). 359.   See Jacoves v. United Merchandising Corp., 11 Cal. Rptr. 2d 468, 487 (Ct. App. 1992) (sold rifle used in suicide); Hilberg v. F.W. Woolworth Co., 761 P.2d 236, 238 (Colo. Ct. App. 1988) (sold rifle); Foster v. Arthur, 519 So. 2d 1092, 1094 (Fla. Dist. Ct. App. 1988) (made weapon available to ex-convict). 360.   See Collins v. Arkansas Cement Co., 453 F.2d 512, 514 (8th Cir. 1972) (entrustment); Jacoves, 11 Cal. Rptr. 2d at 485 (sale); Foster v. Arthur, 519 So. 2d 1092 (Fla. Dist. Ct. App. 1988) (allowed another to find dangerous intrumentality). 361.   See Rosser v. Wal-mart Stores, Inc., 947 F. Supp. 903, 905 (E.D. N.C. 1996) (sold BB gun to 12-year-old boy); KMart Corp. v. Kitchen, 662 So. 2d 977, 978 (Fla. Dist. Ct. App. 1995) (sold firearm to intoxicated customer); Foster, 519 So. 2d at 1094 (allowed another to find dangerous instrumentality). 362.   453 F.2d 512 (8th Cir. 1972). 363.   289 So. 2d 104 (La. 1974). 364.   See E.S. Robbins Corp. v. Eastman Chem. Co., 912 F. Supp. 1476, 1491 (N.D. Ala. 1995) (chemical spills); H. Wayne Palmer & Ass'n v. Heldor Indus., Inc., 839 F. Supp. 770, 776 (D. Kan. 1993) (warehouse fire). 365.   253 Cal. Rptr. 365 (Ct. App. 1989). 366.   947 F. Supp. 903 (E.D.N.C. 1996).

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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors 367.   502 So. 2d 915 (Fla. Dist. Ct. App. 1986). 368.   See Knighten, 253 Cal. Rptr. 365; Roberts, 502 So. 2d 915; Rosser, 947 F. Supp. 903. 369.   Sometimes the statutes create their own private rights of action that provide remedies to those aggrieved by statutory violators. See KEETON ET AL., supra note 167, § 36, at 220. 370.   See generally id. § 36 at 200; RESTATEMENT (SECOND) OF TORTS § 288B (1965). 371.   See Martin v. Herzog, 126 N.E. 814 (N.Y. 1920) (operating buggy at night without lights on in violation of statute is conclusive evidence of negligence); Neff Lumber v. First Nat'l Bank of St. Clairsville, 171 N.E. 327, 329 (Ohio 1930) (holding liable defendant who had violated a penal statute by selling a gun to a minor); see generally KEETON ET AL., supra note 167, § 36, at 200. 372.   See Zeni v. Anderson, 243 N.W.2d 270 (Mich. 1976) (walking in street on wrong side only presumptive evidence of negligence). 373.   See Lipari v. Sears, Roebuck & Co., 497 F. Supp. 185, 196 (D. Neb. 1980) (violation of the Federal Gun Control Act is merely evidence of negligence and does not itself establish negligence per se). 374.   See Kalina v. KMart Corp., No. CV-90-269920S, 1993 WL 307630, at *1 (Conn. Super. Ct., Aug. 5, 1993) (statutory negligence is actionable if the plaintiff falls within the class protected by the statute and has suffered an injury of the type the statute was intended to prevent). 375.   See Neff Lumber, 171 N.E. at 327 (to recover for statutory negligence, it is necessary to allege facts showing that the breach of the statute was the proximate cause of the injury); see also Roberts v. Shop & Go, 502 So.2d 915, 917 (Fla. Dist. Ct. App. 1986). 376.   See Kalina, 1993 WL 307630, at *1 (plaintiff sued store alleging negligence based on its alleged violation of the Federal Gun Control Act). 377.   See id. at *1, *5. 378.   See id. at *5. 379.   Violations of state firearms statutes usually receive similar treatment. See Neff Lumber, 171 N.E. at 329; see also Anderson v. Settergren, 111 N.W. 279 (Minn. 1907). 380.   See Buczkowski v. McKay, 490 N.W. 2d 330, 335 (Mich. 1992) (claim against retailer for weapon sale in violation of Gun Control Act); see also Huddleston v. United States, 415 U.S. 814, 824-25 (U.S. 1974). 381.   See Neff Lumber, 171 N.E. 327 at 329 (the violation of a statute, whether accidental, negligent, or intentional, should result in liability for the unlawful act). 382.   See Kalina, 1993 WL 307630, at *6 (statutory negligence is actionable if the plaintiff falls within the class protected by the statute and has suffered an injury of the type the statute was intended to prevent); see also Wright v. Brown, 356 A.2d 176 (Conn. 1975). 383.   See Buczkowski, 490 N.W. 2d at 336 (the statute required that ammunition not be sold to minors; since McCay was above the age of 18 and did not act in a threatening way, the sale of the gun by KMart was beyond the scope of the duty of care imposed by the statute). 384.   See Neff Lumber, 171 N.E. 327 at 329 (the defendant's negligence is not deemed the proximate cause of the injury when the connection is broken by a superseding, intervening cause, such as a bomber). 385.   See WADE ET AL., supra note 163, at 216 n. 6. 386.   See Wilson v. Piper Aircraft Corp., 577 P.2d 1322, 1332-35 (Or. 1978) (Linde, J., concurring) (in examining the Federal Aviation Administration's "technically intensive [regulatory] program," noting that "when the design of a product is subject not only to prescribed performance standards but to government supervised testing and specific approval or disapproval on safety grounds, no further balance whether the product design is unreasonably dangerous for its intended or foreseeable use under the conditions for which it is approved [generally] needs to be struck by a court or a jury"); see also Ackley v. Wyeth Labs., Inc., 919 F.2d 397 (6th Cir. 1990) (finding FDA approved warning for diphtheria-pertussis-tetanus vaccine adequate as a matter of law); Plummer v. Lederle Labs., 819 F.2d 349 (2d Cir.), cert. denied, 484 U.S. 898 (1987) (finding FDA approved warning for polio vaccine adequate as a matter of law).

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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors 387.   See, e.g., COLO. REV. STAT. § 2A:58C-4 (1987); TENN. CODE ANN. § 29-28-104 (1978 & Supp. 1993). 388.   See Dorsey v. Honda Motor Co., 655 F.2d 650, 656 (5th Cir. 1981) (compliance with regulatory standards is admissible on the issue of care but is not conclusive); see generally RESTATEMENT (SECOND) TORTS § 288C (1965); RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 7(b) (tent. draft No. 3, 1996). 389.   See Hughes v. Ford Motor Co., 677 F. Supp. 76, 77 (D. Conn. 1987) (statute provides a minimum standard of care but is not preclusive of a higher standard). 390.   See Griffin v. Garratt-Callahan Co., 74 F.3d 36 (2d Cir. 1996) (toxic chemical exposure); Guilbeau v. W.W. Henry Co., 85 F.3d 1149 (5th Cir. 1996) (adhesives manufacturer); Midwest Specialties, Inc. v. Crown Indus. Prods. Co., 940 F. Supp. 1160 (N.D. Ohio 1996) (cleaning solvent supplier, distributor, and producer). 391.   See Exner v. Sherman Power Constr. Co., 54 F.2d 510 (2d Cir. 1931); Yukon Equip., Inc. v. Fireman's Fund Ins. Co., 585 P.2d 1206, 1208 (Alaska 1978); Bradford Glycerine Co. v. St. Mary's Woolen Mfg. Co., 54 N.E. 528, 574 (Ohio 1899). 392.   224 A.2d 561 (Conn. Super. Ct. 1966). 393.   See L.S. Ayres & Co. v. Hicks, 40 N.W.2d 334, 337 (Ind. 1942) (stating the general rule, but finding a duty in the facts at hand); see also Hurley, Adm'r, v. Eddingfield, 59 N.E. 1058 (Ind. 1901) (doctor has no duty to aid); Buch v. Amory Mfg. Co., 44 A. 809, 810 (N.H. 1897) (priest has no duty to aid). 394.   See Dove v. Lowden, 47 F. Supp. 546 (W.D. Mo. 1942) (innkeeper-guest); Pirkle v. Oakdale Union Grammar School Dist., 253 P.2d 1 (Cal. 1953) (teacher-pupil); Middleton v. Whitridge, 108 N.E. 192 (1915) (common carrier-passenger). 395.   See Coffee v. McDonnell-Douglas Corp., 503 P.2d 1366, 1369 (Cal. 1972) (employer's doctor performed test but failed to notify job applicant of results); Wilmington Gen. Hosp. v. Manlove, 174 A.2d 135, 140 (Del. 1961) (established emergency ward but turned away patient); Crowley v. Spivey, 329 S.E.2d 774 (S.C. 1985) (parents promised to supervise unstable daughter but failed to do so). 396.   See ALAN CALNAN, JUSTICE AND TORT LAW 200-01 (1997). 397.   See Jacoves v. United Merchandising Corp., 11 Cal. Rptr. 2d 468, 487 (Ct. App. 1992); Hilberg v. F.W. Woolworth Co., 761 P.2d 236, 238 (Colo. Ct. App. 1988); Kalina v. KMart Corp., No. CV-90-269920S, 1993 WL 307630, at *2 (Conn. Super. Ct., Aug. 5, 1993). 398.   See Rosser v. Wal-mart Stores, Inc., 947 F. Supp. 903 (E.D.N.C. 1996) (sale of BB gun to minor); KMart Corp. v. Kitchen, 662 So. 2d 977, 979 (Fla. Dist. Ct. App. 1995) (sale of gun to intoxicated adult). 399.   Rosser, 947 F. Supp. at 909; Kitchen, 662 So. 2d at 979. 400.   See Rosser, 947 F. Supp. at 905; Hilberg v. F.W. Woolworth Co., 761 P.2d 236, 238 (Colo. Ct. App. 1988). 401.   No. CV-90-269920S, 1993 WL 307630, at *1 (Conn. Super. Ct., Aug. 5, 1993). 402.   Compare Hetherton v. Sears, Roebuck & Co., 445 F. Supp. 294, 300 (D. Del. 1978) (holding that compliance may establish due care as a matter of law), rev'd on other grounds, 593 F.2d 526 (3d Cir. 1979) with Peek v. Oshman's Sporting Goods Inc., 768 S.W.2d 841, 845 (Tex. App. 1989) (holding that compliance does not necessarily satisfy the standard of care). 403.   Kalina, 1993 WL 307630, at *3. 404.   See generally Martin H. Redish and Shane V. Nugent, The Dormant Commerce Clause and the Constitutional Balance of Federalism, 1987 DUKE L.J. 569 (discussing the concept of federalism and its application to the Commerce Clause). 405.   See U.S. CONST. art. I, § 8. 406.   "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. CONST. amend. X; David S. Gehrig, the Gun-Free School Zones Act: The Shoot Out over Legislative Findings, the Commerce

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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors     Clause, and Federalism, 22 HASTINGS CONST. L. Q. 179, 187-91 (1994) (explaining relevance of delegation principle to the Commerce Clause). 407.   U.S. CONST. art. I, § 8, cl. 3. 408.   JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW § 4.8, at 155-56 (5th ed. 1995). The Court has been inconsistent in its explication of the test: sometimes stating that the relevant inquiry is whether (for the third class of activities mentioned in the text) commerce has been ''affected," and at other times asking whether commerce has been "substantially affected." In United States v. Lopez, 115 Ct. 1624, 1629-30 (1995), the Court clearly decided, however, that the latter is indeed the proper test. 409.   See Federal Explosives Law, 18 U.S.C. §§ 841-48 (1995); 27 C.F.R. §§ 55.1 (et seq.) (regulations under the Federal Explosives Law (FEL)). For a thorough overview of the FEL, see Hoover, supra note 4. 410.   See, e.g., Wickard v. Filburn, 317 U.S. 111 (1942). 411.   Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219 (1948). 412.   317 U.S. 111 (1942). 413.   NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937) (question is one of degree); Lopez, 115 S. Ct. at 1633 (question is necessarily imprecise). 414.   See, e.g., Jones & Laughlin Steel Corp., 301 U.S. at 37. 415.   Lopez, 115 S. Ct. at 1658-59 (Breyer, J., dissenting) (summarizing case law demonstrating such deference); see Ann Althouse, Enforcing Federalism After United States v. Lopez, 38 ARIZ. L. REV. 793, 793 (1996). 416.   Heather Hale, United States v. Lopez: Resisting Further Expansion of Congressional Authority Under the Commerce Power, 1996 DET. C.L. MICH. ST. U.L. REV. 99, 105. 417.   See Kathleen F. Brickey, Crime Control and the Commerce Clause: Life After Lopez, 46 CASE W. RES. L. REV. 801, 823-26 (1996). 418.   Hale, supra note 416, at 99. 419.   402 U.S. 146 (1971). 420.   See id.; Lopez, 115 S. Ct. at 1661 (Breyer, J., dissenting) (offering similar interpretation of Perez). 421.   See, e.g., Lopez, 115 S. Ct. at 11663-64 (Breyer, J., dissenting) (summarizing this view). 422.   See 115 S. Ct. at 1635-37 (Kennedy, J., concurring) (so reading the Court's precedent). 423.   115 S. Ct. 1624 (1995). 424.   18 U.S.C. §922(q)(1)(A) (Supp. V. 1988). 425.   The Court noted that a case-by-case jurisdictional requirement of movement in or an effect on interstate commerce—for example, that "the particular firearm possessed affected interstate commerce"—would be constitutionally sufficient. However, the statute lacked any such jurisdictional element, 115 S. Ct. at 1631. 426.   Subsequent findings were made, but they were not relied upon by the government, id. at 1632 n. 4, apparently because they were too general to be helpful, see id. at 1656 n.2 (Souter, J., dissenting). In any event, the majority chose to ignore the subsequent findings, although it is unclear whether it did do because they were made after the act's adoption, because they were too general, or because they were not relied on by the government. See id. at 1632 n. 4. 427.   Id. at 1632. 428.   Id. 429.   Id. 430.   See id. at 1634. 431.   115 S. Ct. 1634 (Kennedy, J., concurring, joined by O'Connor, J., concurring). 432.   See id. at 1638. 433.   See id. at 1657-65 (Breyer, J., dissenting, joined by Justices Stevens, Souter, and Ginsburg). 434.   115 S. Ct. 1642 (Thomas, J., concurring). 435.   See, e.g., United States v. Mosby, 60 F.3d 454 (8th Cir. 1995); United States v. Oliver, 60

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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors     F.3d 547 (9th Cir. 1995); United States v. Williams, 51 F.3d 1004 (11th Cir. 1995); United States v. Garcia-Salazar, No. 95-20033-01 GTV, 1995 WL 399070 (D. Kan., June 9, 1995); accord Note, Victoria Davis, A Landmark Lost: The Anemic Impact of United States v. Lopez, 115 S. Ct. 1624 (1995), on the Federalization of Criminal Law, 75 NEB. L. REV. 117, 134 (1996) ("subsequent courts … have maintained that if Congress makes any legislative findings that the activity, even if wholly intrastate, affects interstate commerce, then the judiciary must defer to Congress"). 436.   See Hale, supra note 416 (summarizing relevant Commerce Clause jurisprudence). Lower courts have implicitly found that even noncommercial activity aimed at private, noncommercial actors can involve "commerce." For example, in United States v. Ramey, 24 F.3d 602 (4th Cir. 1994), cert. denied, 115 S. Ct. 1838 (1995), the defendants were convicted of burning an interracial couple's trailer, used as a residence, thus violating a federal arson statute. The appellate court found a sufficient nexus to interstate "commerce" because the trailer received electricity from an interstate grid. At least one commentator sees Ramey as consistent with earlier Supreme Court Commerce Clause case law concerning the arson statute. See Brickey, supra note 417, at 934-36. 437.   114 S. Ct. 798 (1994). 438.   18 U.S.C. § 1962 (a)-(c) (1994). 439.   Before Lopez, courts considering Commerce Clause or analogous questions under statutes (like the Racketeering Act) that require an interstate commerce link, focused on whether there was an impact on interstate economic activity, rather than on whether that activity was "commercial." See, e.g., Althouse, supra note 415, at 15-17. Nevertheless, given that Lopez did not overrule earlier Supreme Court Commerce Clause cases, those cases can now be viewed as implicitly addressing an activity's status as "commercial." 440.   115 S. Ct. 1732 (1995) (per curiam). 441.   Id. at 1733. 442.   See Lopez, 114 S. Ct. at 1657-65 (Breyer, J., dissenting). 443.   See id. at 1624-34 (majority opinion). 444.   See id. at 1632-34. 445.   See Althouse, supra note 415, at 817-22 (interpreting Wickard v. Filburn, 317 U.S. 111 (1942), and its progeny as establishing the principle that whether a solution to a problem can largely be found only at the federal level is a critical factor in Commerce Clause jurisprudence: "Filburn's behavior genuinely was a component in a national problem susceptible only to a national solution"). 446.   See Hoover, supra note 4. 447.   See Althouse, supra note 415, at 817-22. 448.   Interestingly, even a matter that any home buyer or apartment renter surely thinks of as purely local—the residential real estate market—has been found by the Supreme Court to affect interstate commerce. Thus, in Russell v. United States, 471 U.S. 858 (1983), the defendant rented out a building, treating it as a business. The defendant was federally prosecuted for arson when the building burned. The Court concluded: The rental of real estate is unquestionably such an activity [affecting interstate commerce]. We need not rely on the connection between the market for residential units and the "interstate movement of people" to recognize that the local rental of an apartment unit is merely an element of a much broader commercial market in rental properties. The congressional power to regulate the class of activities that constitute the rental market for real estate includes the power to regulate individual activity within that class. Id. at 862 (footnotes omitted) (emphasis added). A similar logic should govern in the explosives context: intrastate explosive materials purchases are arguably "an element of a much broader commercial market" and of less traditionally local concern than real estate rentals and sales. 449.   U.S. CONST. amend. X. 450.   505 U.S. 144 (1992). 451.   Id. at 176.

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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors 452.   Id. 453.   Id. at 167. 454.   Id. 455.   Id. at 176. 456.   18 U.S.C. § 922 (1994). 457.   Id. at § 922(s)(3)(A). 458.   Frank v. United States, 860 F. Supp. 1030 (D. Vt. 1994) (citing Pub. L. No. 103-159, § 103(b) (1994)). 459.   18 U.S.C. § 922(s)(2-6) (1994). 460.   79 F.3d 452 (5th Cir. 1996). 461.   Id. at 458. 462.   66 F.3d 1025 (9th Cir. 1995). 463.   Id. at 1029. 464.   117 S. Ct. 2365 (1997). 465.   Id. at 2376. 466.   Id. at 2378. 467.   Id. at 2383. 468.   Id. at 2384. 469.   U.S. CONST. art. VI. 470.   Maryland v. Louisiana, 451 U.S. 725, 746 (1981). 471.   Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). 472.   Malone v. White Motor Corp., 435 U.S. 497, 504 (1978). 473.   Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977). 474.   Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm'n, 61 U.S. 190, 204 (1983) (conflict); Fidelity Fed. Sav. & Loan Ass'n v. Dela Cuesta, 458 U.S. 141, 153 (1982) (occupying the field). 475.   See, e.g., Gade v. Nat'l Solid Waste Mgmt. Assn, 505 U.S. 88 (1992) (Illinois statutory provisions regarding workers handling hazardous waste, which supplemented the federal Occupational Safety and Health Act, were preempted by the latter Act). 476.   See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW (2d ed. 1988) (collecting cases). 477.   See id. at 378-85. 478.   U.S. CONST. amend. X. 479.   18 U.S.C. § 921 et seq. (1993). 480.   Printz v. United States, 117 S. Ct. 2365 (1997). 481.   U.S. CONST. amend. XIV, § 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. See generally NOWAK & ROTUNDA, supra note 408, § 14.1, at 595. 482.   U.S. CONST. amend. V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury … nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. See generally NOWAK & ROTUNDA, supra note 408, § 14.1, at 595-96. 483.   See NOWAK & ROTUNDA, supra note 408, § 14.1, at 595; see also Joseph Tussman and

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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors     Jacobus Ten Broek, The Equal Protection of the Laws, 37 CALIF. L. REV. 341, 344 (1949) (government must forgo an action or include within it all persons of a similar position). 484.   Reitman v. Mulkey, 387 U.S. 369 (1967) (California Constitution which prohibited open house statutes struck down); McLaughlin v. Florida, 379 U.S. 184 (1964) (statute prohibiting a white and black person from living together violative of equal protection); Gomillion v. Lightfoot 364 U.S. 339 (1960) (redefining of city boundaries to exclude minority race voters violates Fourteenth Amendment); see generally NOWAK & ROTUNDA, supra note 408, §§ 14.8(d)-14.9, at 652-92. 485.   Korematsu v. United States, 323 U.S. 214 (1944), reh'g denied, 324 U.S. 885 (1945) (upheld detention and exclusion of persons of Japanese ancestry; established future analysis of such classifications, needing to pass strict scrutiny standards); see generally NOWAK & ROTUNDA, supra note 408, § 14.8(d), at 653-54. 486.   Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966) (Virginia poll tax violative of equal protection); Carrington v. Rush 380 U.S. 89 (1965) (Texas provision prohibiting members of armed forces from voting found unconstitutional); see generally NOWAK & ROTUNDA, supra note 408, § 11.7, at 403. 487.   Shapiro v. Thompson, 394 U.S. 618 (1969) (personal mobility and interstate travel issues; welfare benefits illegitimately withheld from those not living in jurisdiction one year prior to application); see generally NOWAK & ROTUNDA, supra note 408, § 11.7, at 403. 488.   Kirckberg v. Feenstra, 450 U.S. 455 (1981) (invalidated statute giving husband unilateral right to dispose of marital property); Califano v. Westcott 443 U.S. 76 (1979) (invalidated genderbased classification used to allocate benefits to families with dependent children); Orr v. Orr, 440 U.S. 268 (1979) (struck down alimony law granting payments from husband to wife but not from wife to husband); Califano v. Goldfarb, 430 U.S. 199 (1977) (Social Security provision regarding survivors benefits illegitimately based on gender); see generally NOWAK & ROTUNDA, supra note 408, § 14.23, at 782-90. 489.   Clark v. Jeter, 486 U.S. 456 (1988) (statute of limitations on paternity actions concerning illegitimate children; held government must demonstrate classification is related to an important state interest); Gomez v. Perez, 409 U.S. 535 (1973) (no withholding of government benefits to illegitimate children because proving parentage is difficult); Stanley v. Illinois, 405 U.S. 645 (1972) (invalidated statute that denied father a hearing prior to adoption of illegitimate child to other); see generally NOWAK & ROTUNDA, supra note 408, §§ 14.14-14.19, at 758-72. 490.   Plyler v. Doe, 457 U.S. 202, reh'g denied, 458 U.S. 1131 (1982) (extended limited Fourteenth Amendment protection to unlawfully resident aliens; Court applied midlevel standard of review for government to show why burdening unlawful residents furthers a substantial goal of the state). But see generally NOWAK & ROTUNDA, supra note 408, §§ 14.11-14.13, at 737-57 (Court decisions have been less obvious in applying intermediate level of review for cases concerning alienage; some don't call standard "mid" level or intermediate, others seem to apply different standards). 491.   Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1980) (regulation banning plastic milk containers met rational relation test); Nat'l Paint & Coatings Ass'n v. City of Chicago, 45 F.3d 1124 (7th Cir.), cert. denied, 132 L.Ed. 2d 829 (1995) (regulation of the sale and possession of spray paint and large markers); Michigan Meat Ass'n v. Block, 514 F. Supp. 560 (W.D. Mich. 1981) (Federal Meat Inspection Act); Lens Express, Inc. v. Ewald, 907 S.W.2d 64 (Tex Ct. App. 1995) (Texas Optometry Act, regulating prescriptions and the dispensing of contact lenses); Hartsock-Flesher Candy Co. v. Wheeling Wholesale Grocery Co., 328 S.E.2d 144 (W. Va. 1984) (Unfair Practices Act); see generally NOWAK & ROTUNDA, supra note 408, § 14.3, at 601-20. 492.   Clover Leaf Creamery Co., 449 U.S. at 464; Nat'l Paint & Coatings Ass'n, 45 F.3d at 1127 (citing Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364. (1973)); Lens Express, Inc., 907 S.W.2d at 69. 493.   Clover Leaf Creamery Co., 449 U.S. at 463 (articulated purpose of act was to promote conservation and ease solid waste); Hartsock-Flesher Candy Co., 328 S.E.2d at 146-147 (purpose of

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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors     Unfair Practices Act was to maintain fair trade and competition); Michigan Meat Ass'n, 514 F. Supp. at 561 (Section 2 of Title I of the Federal Meat Inspection Act articulates purpose of keeping food supply wholesome, thus promoting public welfare, protection of markets, and regulation). 494.   U.S. Railroad Retirement Bd. v. Fritz, 449 U.S. 166 (1980) (Court will uphold statute if there is any plausible reason to sustain it; it is constitutionally irrelevant whether this reasoning in fact underlay the legislative decision); Nat'l Paint & Coatings Ass'n, 45 F.3d at 1127 (court accepted city's argument that reduction of available spray paint tends to reduce use by vandals). But see Starlight Sugar Inc. v. Soto, 909 F. Supp. 853, 861 (D.P.R. 1995), aff'd, No. 96-1332, 1997 WL 2786680 (1st Cir., May 30, 1997) (protection of the local sugar industry not a legitimate justification for sugar regulations); see generally NOWAK & ROTUNDA, supra note 408, § 14.3(b), at 601-03. 495.   Clover Leaf Creamery Co., 449 U.S. at 466 ("[a legislature] may implement [its] program step by step … adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations" (quoting New Orleans v. Dukes, 427 U.S. 297, 303 (1976)). 496.   Nat'l Paint & Coatings Ass'n, 45 F.3d at 1129 (legislature need not choose least restrictive regulation: "If there are alternative ways of solving a problem, we do not sit to determine which of them is best suited to achieve a valid state objective" (quoting Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 524 (1959)); see also Hartsock-Flesher Candy Co., 328 S.E.2d at 150 (constitutionality of a statute does not turn on difficulty or convenience of its application); see generally NOWAK & ROTUNDA, supra note 408, § 14.3(b), at 601-03. 497.   Nat'l Paint & Coatings Ass'n, 45 F.3d at 1127 (citing Heller v. Doe, 509 U.S. 312, 319 (1993)). 498.   449 U.S. 456 (1980). 499.   Id. at 466. 500.   514 F. Supp. 560 (W.D. Mich. 1981). 501.   45 F.3d 1124 (7th Cir.), cert. denied, 132 L.Ed. 2d 829 (1995). 502.   Id. at 1127. 503.   Starlight Sugar Inc, 909 F. Supp. 853; see generally NOWAK & ROTUNDA, supra note 408, § 14.3(a), at 601, 605, 608. 504.   909 F. Supp. 853 (D.P.R. 1995), aff'd, No. 96-1332, 1997 WL 2786680 (1st Cir., May 30, 1997). 505.   Id. at 861. 506.   Id. 507.   See U.S. CONST. amend. XIV, § 1; U.S. CONST. amend. V. 508.   See generally NOWAK & ROTUNDA, supra note 408, § 14.3(a), at 601-02 (strict scrutiny test; government must show that it is pursuing a compelling or overriding end). 509.   See id. § 11.7, at 403-04. 510.   Pennell v. City of San Jose, 485 U.S. 1 (1988) (rent control ordinance upheld because it rationally related to legitimate state interest); Clover Leaf Creamery Co., 449 U.S. 456 (regulation banning plastic milk containers met rational relation test); Nat'l Paint & Coatings Ass'n, 45 F.3d 1124 (regulation of the sale and possession of spray paint and large markers); Michigan Meat Ass'n, 514 F. Supp. 560 (Federal Meat Inspection Act); Lens Express, Inc., 907 S.W.2d 64 (Texas Optometry Act, regulating prescriptions and the dispensing of contact lenses); Hartsock-Flesher Candy Co., 328 S.E.2d 144 (Unfair Practices Act); see generally NOWAK & ROTUNDA, supra note 408, § 14.3, at 601-20. 511.   U.S. CONST. amend. V. 512.   Dolan v. City of Tigard, 512 U.S. 374, 384 (1994) (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)). 513.   Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 420 (1982). 514.   458 U.S. 419 (1982). 515.   Id. at 426.

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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors 516.   Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992); see Agins v. City of Tiburon, 447 U.S. 255, 260 (1980); see also Nollan v. California Coastal Comm'n, 483 U.S. 825, 834 (1987). 517.   Lucas, 505 U.S. at 1016; Agins, 447 U.S. at 260. 518.   Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005 (1984); Prune Yard Shopping Center v. Robins, 447 U.S. 74, 83 (1980); Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978). 519.   357 U.S. 155 (1958). 520.   444 U.S. 51 (1979). 521.   Id. at 66. 522.   See Brochu v. Ortho Pharm. Corp., 642 F.2d 652, 658 (1st Cir. 1981) (oral contraceptives); Mazur v. Merck & Co., Inc., 742 F. Supp. 239, 247 (E.D. Pa. 1990) (federal regulation of childhood vaccines); Graham v. Wyeth Laboratories, 666 F. Supp. 1483, 1491 (D. Kan. 1987) (child suffered brain damage after vaccination); Wood v. Gen. Motors Corp, 673 F. Supp. 1108, 1117 (D. Mass. 1987) (car manufacturer's failure to install passive restraint system); Shipp v. Gen. Motors, 750 F.2d 418, 421 (5th Cir. 1985) (automobile roof collapsed in single rollover accident). 523.   See Dorsey v. Honda Motor Co., 655 F.2d 650, 656 (5th Cir. 1981) (evidence of regulatory compliance is admissible on the issue of due care but is not conclusive); see also RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 7(b) (tent. draft No. 3, 1996) ("a product's compliance with an applicable product safety statute or regulation is properly considered in determining whether a product is defective with respect to the risks sought to be reduced by the statute or regulation, but does not necessarily preclude as a matter of law a finding of product defect"). 524.   See Stewart v. Int'l Playtex, Inc., 672 F. Supp. 907 (D.S.C. 1987) (compliance with Medical Device Amendments to Food, Drug and Cosmetics Act was sufficient showing of due care in toxic shock syndrome case). 525.   See OWEN ET AL., supra note 296, at 382-86 (describing a number of FDA regulations); see also Martello v. Ciba Vision Corp., 42 F.3d 1167 (8th Cir. 1994) (finding FDA premarket approval (PMA) process so comprehensive that PMA determinations preempt conflicting state law); Henley v. Food and Drug Admin., 77 F.3d 616, 621(E.D.N.Y. 1995) (finding that the FDA possesses requisite know-how to conduct analyses to determine most accurate and up-to-date information regarding a particular drug; thus, the court would defer to the FDA's expertise). 526.   Mitchell v. Lone Star Ammunition, Inc., 913 F.2d. 242, 245 (5th Cir. 1990) (citing Trevino v. Gen. Dynamics Corp. 865 F.2d 1474, 1478 (5th Cir. 1989)), cert. denied, 493 U.S. 935 (1989). 527.   Carley v. Wheeled Coach, 991 F.2d 1117, 1124 (3d Cir.), cert. denied, 510 U.S. 868 (1993). 528.   Id. at 1120, 1124. 529.   487 U.S. 500 (1988). 530.   Id. at 512. 531.   528. Snell v. Bell Helicopter Textron, 107 F.3d 744, 748 (9th Cir. 1997) (citing Trevino, 865 F.2d at 1480). 532.   Id. 533.   Carley, 991 F.2d at 1119. 534.   See, e.g., McKay v. Rockwell Int'l Corp., 704 F.2d 444, 451 (9th Cir. 1983) (military airplane ejection system); In re Hawaii Federal Asbestos Cases, 715 F. Supp. 298, 300 (D. Haw. 1988) (court applying federal and Hawaii law held that government contractor defense did not extend to nonmilitary context); see generally LOUIS R. FRUMER & MELVIN I. FRIEDMAN, PRODUCTS LIABILITY § 31.04 (1997 & Supp. April 1997). 535.   See, e.g., Nielson v. George Diamond Vogel Paint Co., 892 F.3d 1450, 1454 (9th Cir. 1990) (inhalation by civilian worker of paint fumes while on government contract job; court noted that policy behind government contractor defense applies to all government contracts and is not limited to

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Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors     the military context); Tempo, Inc. v. Goodall Rubber Co., 603 F. Supp. 1359, 1361 (E.D. Pa. 1985) (firefighting apparel). 536.   772 F.2d 844 (11th Cir. 1985). 537.   Id. 538.   Id. at 846. 539.   991 F.2d 1117 (3d Cir.), cert. denied, 510 U.S. 868 (1993). 540.   Id. at 1124. 541.   Id. at 1122, 1124-25. 542.   See FRUMER & FRIEDMAN, supra note 534, § 31.01 (footnotes omitted). 543.   Ryan v. Feeney & Sheehan Bldg. Co., 145 N.E. 321, 321-22 (N.Y. 1924) (noting that "[a] builder or contractor is justified in relying upon the plans and specification which he has contracted to follow"). 544.   541. See FRUMER & FRIEDMAN, supra note 534, § 31.01. 545.   28 U.S.C. § 2680(a) (1994) (immunity applies to "the exercise or performance or failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion is abused"). 546.   346 U.S. 15 (1953). 547.   Id. at 34. 548.   Id. at 35. 549.   Id. at 35-36. 550.   661 F. Supp. 1159 (N.D. Miss. 1987). 551.   Id. at 1162. 552.   Id. at 1163. 553.   U.S. CONST. art. VI, cl. 2 (known as the Supremacy Clause). 554.   See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 527 (1992) (noting that state tort judgments are a form of state regulation that, if inconsistent with federal law, may run afoul of the Supremacy Clause; thus dismissing various tort claims as preempted by the Cigarette Labeling Act). 555.   15 U.S.C. § 1331 (1994). 556.   7 U.S.C. § 136(p) (1994). 557.   National Vaccine Injury Compensation Act, 42 U.S.C. §§ 300aa-10 to 300aa-33 (1988). Victims who waive their rights to sue vaccine manufacturers may receive compensation under the program. Id. §§ 300aa-14, 300aa-21. Claimants may recover benefits for medical care, death, lost earnings, and pain and suffering, id. § 300aa-15(d)(1), merely by proving causation, id. §§ 300aa-11, 300aa-13(a)(1)(A), 300aa-14. Victims who do not file a claim may still opt to sue the manufacturer, subject to some legislatively imposed limitations. Id. §§ 300aa-11, 22-(b), 300-22(c), 300aa-23(d)(2); see also Barbara A. Boczar, Symposium, Biotechnology and Tort Liability; A Strategic Industry at Risk, 55 U. PITT. L. REV. 791, 850-852 (1994). 558.   Title IV of the Federal Coal Mine Health and Safety Act of 1969, Pub. L. No. 91-173, §§ 101-426, 83 Stat. 792 (codified in scattered sections of 30 U.S.C.), better known as the "Black Lung Act," provides benefits to disabled minors who suffer from pneumoconiosis and surviving dependents, 30 U.S.C. § 901 (1988); establishes rebuttable presumptions that the disease arose out of employment if one worked long enough in mining, id. 921(c)(1), and those who died of respiratory disease and worked 10 plus years presumed to have died of pneumoconiosis, id. § 921(c)(2). See also Boczar, supra note 557, at 855-856; see generally EARNEST GELLHORN, THE "BLACK LUNG" ACT: AN ANALYSIS OF LEGAL ISSUES RAISED UNDER THE BENEFIT PROGRAM CREATED BY THE FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969 (AS AMENDED) (1981). 559.   The Swine Flu Act, Pub. L. No. 94-380, § 2, 90 Stat. 1113 (1976).