The case of the day is Howe v. Romarm S.A. (D. Vt. 2017). The plaintiffs were victims of a 2010 shooting in Washington, or in one case, the representative of the estate of a victim. One of the victims was killed, the other two were injured. The gun allegedly used in the shooting was a WASR-10 semi-automatic, manufactured by Romarm. Romarm is an instrumentality of the Romanian government. The plaintiff sued Romarm under the District of Columbia Assault Weapons Manufacturing Strict Liability Act. Romarm moved to dismiss for lack of subject-matter jurisdiction, citing the FSIA.
The question was whether the commercial activity exception to FSIA immunity applied. Under the statute, a foreign sovereign is not immune from suit if the action is based “upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.” The plaintiffs pointed to the manufacture of the firearm as the “act” and the death and injuries in Washington as the “direct effects” for purposes of the statute. But to qualify as a “direct effect,” the effect has to “follow as an immediate consequence of the defendant’s activity.” Under Second Circuit precedent, there can be no “intervening element.” Here, there was a “long change of causation” between the manufacture and the shooting, including sales of the weapon to dealers.
Moreover, the action was not really “based upon” the manufacture of the firearm: it was “based upon” the tortious use of the firearm to kill and injure: the shooting itself is the “gravamen” of the case. (On this point, it’s noteworthy that plaintiffs seeking to invoke the “direct effect” prong of the commercial activity exception end up trying to prove that the action is “based upon” something that happened abroad, whereas in most commercial activity cases plaintiffs want to prove the action is “based upon” something that happened in the United States).
In short, Romarm was immune from suit, and so the court dismissed the action.
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