Agenda for 15th Class

1. Agenda for 15th Class • Handouts • Slides • Name plates • Castle Doctrine • Summary of Last Class • Common Law • Winterbottom v Wright • Thomas v Winchester • 2nd Writing Assignment

2. Assignment for Next Class • Next Class – Midterm • Open book • Review • All readings • Questions & answers • Slides • Likely format • Multiple choice • Questions checking that you understood readings, questions, answers, and slides • Short question(s) • 1 longer essay • Applying what learned to hypothetical situation

3. Castle Doctrine • Do you have the right to use deadly force against an intruder? • Varies from state to state • General answer: Only if you have a reasonable belief that you need to use deadly force to prevent serious bodily harm to self or others • Some states: “castle doctrine” allows deadly force against intruder • California Penal Code 198.5 (“California Home Protection Bill of Rights”) • Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred. • Note: presumption is rebuttable. • You can be convicted of murder if the prosecutor proves beyond reasonable doubt that you did NOT have a reasonable fear of imminent peril of death or great bodily injury.

4. Review of Second Amendment • Text of amendment links gun rights to militia • Fear of professional army • Belief that armed citizenry organized locally provided protection against tyranny, foreign invasion, and civil unrest • Lots of gun regulation in 18th and 19th centuries • Particular weapons required for militia • Bans on guns in western cities • Hard to apply 2nd Amendment after early 19th century • Because militia becomes largely obsolete • 20th century cases • 2nd Amendment only protects militarily useful weapons • 2nd Amendment is collective right • Heller -- Individual right to guns for self defense • Post Heller • Right is not absolute • Intermediate scrutiny? Historical test for regulations?

5. Common Law Cases • Langridge v Levy • Father purchased gun. • Seller stated & warranted that gun was safe • Seller knew gun was not safe • Son was injured and sued • Court: Son can recover damages from seller • Injured person cannot sue for breach of contract unless s/he was a party to the contract • “Privity of contract” rule • Exception for fraud where person making misrepresentation knew another might be harmed • Winterbottom v Wright • Wright supplied mail coaches to Postmaster • Contract required them to be “safe” • Atkinson contracted with Postmaster to supply drivers • Winterbottom was employed by Atkinson • Winterbottom was injured, allegedly because the coach was not safe • Court: Winterbottom cannot recover from Wright • Because of privity of contract rule

6. Questions • 2. The case most favorable to the plaintiff is Levy v Langridge. If you were the plaintiff’s lawyer in Winterbottom v Wright, how would you have used that case to argue that the defendant in this case should be liable to your client? If you were the defendant’s lawyer, how would you respond? • 3. Why do you think the plaintiff won in Levy v Langridge, but the plaintiff lost in Winterbottom v Wright? Consider both legal and social reasons. • 4. What is the holding in Winterbottom v Wright? That is, state in a sentence the legal rule established by this case. • 5. Judge Rolfe says that judges should not be influenced by the hardship that the plaintiff suffers on account of the absence of a remedy. Why not? What should influence a judge? What influenced the judges in this case?

7. Questions • 6. If Wright had sold a defective coach to Langridge, and Langridge’s wife had been injured while riding in the coach, would Wright be liable to Langridge’s wife? • 7. If the Postmaster had told Wright that the mail-coach would be used by coachmen, and Wright had said that the mail-coach could be safely used by coachmen, would Wright be liable to any coachman injured by a defective coach? • 8. If Wright had put explosives under the mail-coach seat, which had gone off while Winterbottom had been sitting on the mail-coach seat, would Wright be liable to Winterbottom?

8. Thomas v Winchester • Gilbert worked for Winchester and manufactured drugs • Mislabeled dandelion as belladonna (poison) • Aspinwall purchased mislabeled dandelion from Winchester • Mr. Foord purchased mislabeled dandelion from Aspinwall • Mr. Thomas purchased mislabeled dandelion for wife from Mr. Foord • Mrs. Thomas got very ill. • Mr. and Mrs. Thomas sued Winchester • Court: Winchester liable • Death or great bodily harm was the natural and almost inevitable consequence of selling belladonna by false label • Different from Winterbottom because imminent danger to human life

9. Questions • 1. What is the holding of this case? • 2. Was this a case where precedents clearly established a legal rule applicable to this case? • 3. What is the relationship between this case and Winterbottom v. Wright? Does it overrule Winterbottom? Does it create an exception to Winterbottom? Is Winterbottom binding precedent? Is Winterbottom irrelevant?

10. Questions • 4. Suppose Boeing makes an airplane which contains a defective part. After 5 years of safe flying, it breaks apart in midair, and all passengers die. Under Thomas v Winchester, can the airline which purchased the airplane sue Boeing for damages it incurred? Such damages might include damage to property the airline had on the airplane, including destruction of food and life jackets which were on board. If your answers to this question and the next question are different, do you think it makes sense that the manufacturer is liable in one case but not the other? • 5. Under Thomas v Winchester, can the relatives of the dead passengers on the plane mentioned in Question 4 sue for wrongful death? Wrongful death actions can ordinarily be brought by relatives for a death caused by negligence, if the deceased could have brought a tort action for injuries other than death in similar circumstances. If your answers to this question and the previous question are different, do you think it makes sense that the manufacturer is liable in one case but not the other?

11. 2nd Writing Assignment • 1) The law creates a new organization, the emergency militia. Any person 21 years or older can join the militia if he or she meets the following requirements: • 1) S/he owns at least one gun and registers all his/her guns with the militia commander. • 2) S/he does not have a criminal record. • 3) S/he has no history of mental illness. • 4) S/he has no record of committing domestic violence. • 5) S/he has no record of drug use and agrees to submit to random drug tests. • 5) S/he agrees to participate in 20 hours per year of training in (a) the use of firearms for public safety purposes and (b) emergency response, including first aid and firefighting. • 6) S/he agrees that in an emergency (such as earthquake, fire, flood, riot, or public disorder) with 5 miles of his or her residence, s/he will work under the direction of emergency militia commanders, without pay, to save lives, protect property, and preserve public order.

12. 2nd Writing Assignment (cont’) • 7) S/he agrees that in an emergency (such as earthquake, fire, flood, riot, or public disorder) emergency militia commanders may require him or her to turn over weapons or ammunition to those better able to use them in the interest of public safety, as long as the emergency militia owner is left with at least one operable gun and 100 bullets for his/her own use and as long as the weapons and unused ammuniation are returned after the emergency is over and as long as the owner is compensated for an ammunition not returned unused. • 2) The law also makes it illegal for any person to possess a firearm unless s/he is a member of the emergency militia, the National Guard, the U.S. military, or a governmental law enforcement agencies (such as the policy, highway patrol, DEA, or FBI). • Is the state law constitutional or does it (or some provisions of it) violate the Second Amendment? Be sure to make arguments for and against the law’s constitutionality.