*1 ANTROBUS and Ken Sue Antrobus, Petitioners.
No. 08-4002. Appeals, Court of States Circuit.
Tenth
March 2008. Benitez, Metha,
Brígida P. Jason Davis Oliver, Pickering Cutler Wilmer Hale & LLP, DC, Dorr Washington, Rebecca C. Skordas, Hyde, Gregory Skordas, G. Ca- Hyde, UT, City, ston & Salt Lake Paul G. Cassell, for Petitioners. Antrobus, UT, City,
Sue pro Salt Lake se. HARTZ, TYMKOVICH,
Before
GORSUCH,
Judges.
Circuit
ORDER
an original proceeding
This is
nature mandamus
the Crime
Vic
(CVRA),
Rights Act
tims’
18 U.S.C.
3771(d)(3).
Antrobus,
Sue and Ken
parents
Quinn, request
of Vanessa
Quinn
as a
recognized
Ms.
victim of
crime of
Mackenzie Glade Hunter’s
trans
ferring
juvenile
violation
922(x)(1).
Mr. Hunter is
Monday,
to be
on
scheduled
sentenced
*2
II
I
Standard
Review
12, 2007, Sulejman Talovic
February
On
Quinn,
people, including
five
Ms.
murdered
has made it
Trolley
four
injured
others
remedy
clear that mandamus is a “drastic”
City,
Lake
Shopping
in Salt
Square
Center
only in extraordi
that is “to be invoked
in his
guns
Talovic used
One
Utah.
Corp.
nary situations.” Allied Chem.
pur-
a
that he had
rampage
handgun
was
Inc.,
34,
33,
Daiflon,
101 S.Ct.
curiam).
from Mr. Hunter in
summer
chased
(per
L.Ed.2d
“juvenile” as
Talovic
traditionally
writ of mandamus has
“[T]he
922(x).
§
was killed on
Talovic
defined
in the
courts
to
been used
federal
the scene.
inferior
a lawful exer
confinе an
court to
jurisdiction or
prescribed
cise of its
to
two
pleaded guilty
Hunter
to
Mr.
authority
it to
when it
compel
exercise its
count,
Only one
that of transfer-
charges.
duty
(quotations
do so.”
is its
Id. at 35
juvenile,
ring handgun
is relevant
omitted).
Petitioners must show
plea hearing,
action. After
this
indisputa
right to the writ
“clear and
sought
Quinn de-
Antrobuses
to have Ms.
(quotations
Id.
ble.”
a victim of
Hunter’s crime so
clared
Mr.
that,
though
even
argue
The Antrobuses
behalf,
they, on her
could assert cer-
the CVRA
rights provided by
tain
the CVRA. See 18
court should
those
apply
standards
3771(a)(4)
§
(establishing “[t]he
appellate
that would
on normal
re
at the sen-
right
reasonably
to be
heard”
view. See In re W.R.
Asset
3771(d)(6)
(establishing
id.
Huff
tencing);
(2d
Co., LLC,
562-63
Cir.
timely
to full
restitution as
“[t]he
2005);
Ct.,
Kenna
U.S. Dist.
law”).
court de-
provided
district
(9th Cir.2006).
respectfully
We
Hunter,
the motion.
States v.
nied
however,
decisions of
disagree,
with the
2:07CR307DAK,
marked to Mr. Hunter or in Mr. tradi- accumulated the that he a bank hearing intended to commit meaning prаc- tion of centuries robbery, ruling stated would but that its tice, presumably adopts knows even facts. Id. change assuming such of ideas that were attached to cluster at *4. body each borrowed word learning from which it was taken and permitted As convey meaning its will use 3771(d)(3), a peti- the Antrobuses filed judicial mind otherwise instruct- unless re- seeking for a writ of mandamus tion ed. Pur- of the district court’s decision. view States, order,
suant
to this court’s
Mr.
Morissette v. United
(1952).
263, 72
L.Ed. 288
response.
filed a
subject
longstanding
awаre
is the
of Talovic’s
for the
Mandamus
intentions
firea
rm,1
judicial
assume that Con
to find for the
precedent. “We
Antrobuses we would
have to
gress
legislates
light
knows
law and
determine that
selling
precedent.”
Bd. Coun minor
any
federal court
is the
cause of
result
*3
E.E.O.C.,
840,
405
ty
v. U.S.
F.3d
injury
persons.
Comm’rs
to third
This area of
Cir.2005).
(10th
Applying
plain
law, however,
845
the
the
is not well-developed and
statute,
language of
we review this
is evolving.
authority
While
is mixed in
under traditional mandamus
context,
CYRA matter
the common law
sоme courts have
standards.
held as a matter of law that
cause does not exist
a sale of
between
a
Analysis
firearm a person statutorily disqualified
victim”
defines a “crime
as
purchase
making
inju
and later
directly
person
proximately
“a
harmed
person
ries to a third
through use of the
of a
result of
commission
Federal
See, e.g.,
firearm.
v.
Robinson
Howard
in
District
offense or an offense
Jackson, Inc.,
Bros.
372 So.2d
3771(e).
Columbia.” 18 U.S.C.
While
(Miss.1979).
1076
Others have held that
Quinn undeniably
that Ms.
aсknowledging
proximate cause can be
in some
found
such
victim,
court
was a crime
the district
held
(as
may
circumstances
not
but
would be
particular
that she
not a victim of the
was
here)
required
be found on a
se
per
basis.
guilty
Mr.
pleaded
crime to which
Hunter
Ratzel,
e.g.,
v.
Olson
89 Wis.2d
because Mr. Hunter’s offense
Talovic’s
238, 250,
(1979);
278 N.W.2d
249-51
Phil
“too
rampage
factually
temporal-
were
lips
So.2d
Roy, 431
853 (La.Ct.App.
Hunter,
ly
WL
attenuated.”
1983).
yet
questions
Such
have not
been
Following
at
*4.
the rationale
jurisdiction.
decided in
Finally,
at
Sharp,
F.Supp.2d
States v.
556 most the
Mr.
statute
Hunter violated indi
(E.D.Va.2006), the district court deter-
(or,
cates
foreseeability
foolish
mined that Talovic’s
an
actions were
“inde-
worse)
here,
sadly, as
use of firearms
pendent, intervening
Quinn’s
cause” of Ms.
juveniles.
foreseeability
But such
does not
death.
Id. at *5.
obviously extend
an
who em
individual
ploys
gun only
becoming
This is difficult
but we can
after
an adult
here,
say
clearly
that the district
was
as a
law. And
court
matter of
Antrо
wrong
buses
its conclusion. The
have not shown that Talovic was still
juvenile
case
he
analogous
has decided
under
committed the murders
purchasing
the CVRA
was not a more than
months
held
movant
seven
after
“crime victim” under that statute.
from Mr. Hunter. See 18
See
922(x)(5)
Sharp,
F.Supp.2d
(defining juvenile
556. Based on its U.S.C.
as a
finding
“person
years
age”).
factual
that Mr. Hunter was un-
who
less than
sold,
gun
time
"Even at the
was
Hunter
er knew about Talovic’s intentions
what
knowledge
had
And,
as to
might
no
Talovic's intentions.
knowlеdge
such
mean
the foresee-
sold,
after the
Hunter had no
ability
to Mr.
of Talovic’s crimes.
Hunter,
contact with Talovic.”
53125,
2008 WL
However,
sought
petitioners have not
manda-
("[T]here
*4;
at
see also id. at *5
is no
mus on the
that the district court should
basis
spoke
indication
he
about
to Talovic
his
discovery.
such
Accord-
afforded them
most,
intentions. At
Hunter surmised that
ingly,
is not
we
before us and
must
issue
bank.”).
might
gun]
use
rob a
[the
Talovic
finding that
take as true the district court’s
whether,
might question
with additional
One
Mr.
not aware of Talovic's inten-
Hunter was
might
discovery,
Antrobuses
have been
tions.
fact,
whether,
able to
Mr. Hunt-
determine
circumstances,
cannot
flects an abuse
discretion
er-
In
we
light of these
Kenna,
Ct.,
to the writ
U.S. Dist.
Antrobuses’
say that the
ror.”
Allied Chem. indisputable.”
Cir.2006).
is “clear and
The Second
(quota-
Corp.,
Ill novo, applica- resolution of de proceed Antrobuses’ motion to a writ for discretion. tion for abuse of Their Mo- is GRANTED. pauperis forma LLC, Co., Asset re W.R. Huff Objec- Anticipated tion Defense to Strike (2d Cir.2005). part com- We Mandamus and tion Petition for Writ of *4 apply these pany with circuits the Objec- to Motion Strike Defense Renewed petitions of review for traditional standard mo- tion are Their alternative DENIED. of mandamus. supplement the record is tion for leave to standard, the mandamus the Whatever their exhibit is proffered GRANTED and Quinn’s issue is central whether Vаnessa alter- filing under Their accepted for seal. may seek to have her declared as parents directing gov- for order the native motion Apply- a “crime victim” under the CVRA. DE- supplement the record is ernment to “prox- traditional ing rules of “but-for” the NIED. Mr. Hunter’s motion to unseal causation, that the they argue imate” dis- that portions presentence report of his that trict court should concluded she have as Exhibit D to his re- were submitted view, my a victim. In the district was for a sponse petition is GRANTED. The government the in failing court and erred writ mandamus is DENIED. permit the reasonable ac- Antrobuses TYMKOVICH, Judge, Circuit evidence support cess to which could their concurring. information, claim. With Antro- may have buses been able demonstrate post-Columbine High in a School
We live world, juveniles In requisite massacre world. causal connection between use them willing procure guns are Quinn’s crime Hunter’s and Ms. murder. violent, In this commit horrific crimes. government’s coоperation The mandated act of ran- previously unthinkable requires govern- by which place dom in a mall in Salt killing took to “make efforts to ment their best see City. Sulejman was the Lake Talovic of, victims that crime are notified ac- he used and shot- shooter and corded, rights” set forth Act. 18 gun people. to kill five of the murder One 3771(c)(1). U.S.C. procured weapons was from Mackenzie might is what the Here Antrobuses have Hunter, Quinn. I and used to kill Vanessa given government’s demonstratеd co- separately process write because the all, First of the victim must be operation. adequately support this case failed to “directly” harmed the crime. This en- Quinn rights of crime victims such as Ms. a “but-for” causation notion compasses guaranteed the CVRA. that is met here. presented Two for review. issues addition, “proximate- the harm must The The first is the standard of review. That ly” result from the crime. applied Ninth Second and Circuits issue, sug- difficult but the record more un- resоlving appeals relaxed standard could gests following evidence Circuit, The for ex- der the CVRA. Ninth Talovic’s crime developed to show that was [it] would “issue the writ whenever ample, reasonably result of ille- the district order re- foreseeable court’s find[s] (1) (“CVRA”), Rights Hunter Talovic was Victims’ Act gun sale. knew gal 3771(d)(3).1 legally purchase not a minor and could We do not believe rehear- (2) place; the murder appropriate, the first but offer here gun some (3) stolen; weapon previously of explanation additional words in light of Talovic’s intent to commit bank rob- petitioners’ heard filing latest and the time con- bery, a violence the use of crime of where straints operated reasonably in a could result shoot- initially disposing of their peti- and, ing; finally; shooting was not tion. remote time as to be unforeseeable.
so
I
I do not think it matters
that Talovic
committed a crime
is different from
In their
rehearing, petition-
Hunter; only
he told
what
ers restаte and develop
argument
obviously
likely
could
lead
violence.
that this
court should
normal appel-
included in
indictment in
language
late
standards
review rather than those
government
fact makes clear
be-
applicable to
writs mandamus.
can-We
lieved Hunter knew that Talovic “intended
agree.
plain language
carry
possess,
discharge
or otherwise
the district
“[i]f
*5
in
or otherwise use
the com- denies the
sought,
may
relief
the movant
mission of a crime of violence.” If the
petition
appeals
the court of
for a writ of
intervening cause was
then
foreseeable
3771(d)(3).
18
mandamus.”
can be
proximate cause
established.1
Mandamus
a well
of
worn term art in
our common law tradition. See
together,
Marbury
Taken
these facts could estab-
(1 Cranch)
Madison,
137, 170-71,
5 U.S.
Quinn
lish
Ms.
was a crime victim for
2
(discussing
of
CVRA.
L.Ed. 60
purposes
may
This evidence
mandamus
relief);
government’s
Cheney
well be contained
files.
standard for
v. U.S. Dist.
Court,
Sadly,
367, 380,
the Antrobuses were not allowed a
542
124
U.S.
S.Ct.
(2004).2
opportunity
reasonable
to make a better
159
459
And
L.Ed.2d
the Su-
preme
case.
Court has made
clear
“where
Congress
art in
borrows terms of
which
ORDER
are accumulated the
tradition and
panel rehearing
meaning
practice,
pre-
of centuries of
it
Petitioners seek
our
sumably
adopts
denying
order of
2008
knows
cluster
for mandamus under the Crime
ideas that were attached to
borrowed
petition
each
use of
writ in aid of
1. The CVRA limits its causal nеxus
tradi-
"The traditional
(Sec-
e.g.,
tional standards.
appellate jurisdiction
Restatement
both at common law
302, 390, 449;
ond)
§§
Torts
and see
been to
and in the federal courts has
confine
Inc.,
Management,
997
McDermott v. Midland
sought
against
the court
mandamus
(10th Cir.1993)
("[LJiability
770
jurisdic-
prescribed
to a lawful exercise of its
despite
will still
the existence of an
attach
Although
tion.
courts
not confined
have
intervening
intervening
cause where the
arbitrary
themselves to
and technical defi-
might reasonably
cause was
or
foreseen
only exceptional
jurisdiction,
nition
cir-
foreseen.”).
been
usurpa-
amounting
judicial
cumstances
power
tion of
clear abuse
discretion
rehearing
petition
en
1. Petitioners’
banc in
justify
will
invocation
this extraordi-
addressed at
end of this
matter is
Cheney,
nary remedy.”
U.S.
1, 2008,
February
order. On
denied a
(internal
S.Ct. 2576
citations
alterations
petitioners
petition
second mandamus
from
matter,
08-4013;
separate
No.
we note that
rеhearing
sought
not been
matter.
result.
reached the same
passage,
which it brief
body
learning
in the
word
Court,
Kenna v.
Dist.
meaning its use will
and the
was taken
Walsh,
Cir.2006); see also In re
mind unless other-
judicial
convey to
(3d Cir.2007).
With
Fed.Appx.
Morissette
instructed.”
wise
246, 263,
circuits,
States,
respect
to our sister
aware
(1952).
they oper-
under which
pressures
L.Ed. 288
the time
ated,
opinions
in their
ex-
nothing
we see
sure,
point us to
petitioners
To be
why Congress chose to use the
plaining
Co.,
This in especially light is so of the stantial expansion on the common law CVRA’s own structure and language. right Act, codified in All Writs and the While the CVRA individuals seek- government latter providing the with a review of a court’s “victim district sta- review, right appeal tus” decision with mandamus it adverse dеcision to other See, 1292(b) 2339B(f)(5)(B)(iii) e.g., (providing (stating § 4. that U.S.C. that in an discretion, may, appeals the court of in its interlocutory government appeal if, alia, interlocutory appeal consider an inter alia, authorizing, an order inter the disclosure appeal days is filed within ten of the information, appeals of classified the court of interlocutory appealed). order argument days filing shall hear within of the appeal of the its decision no more issue Indeed, just did four 5. so months later in days argument). than 4 after 1453(c)(2). CAFA. 28 See also 18 Cheney, 542 at (those cently as See seeking crime victims sta- 2004. parties tus). 2. supra note Rath- 2576 & one, er, simply factors are non- five that 72-hour extent Finally, to the that applying standard. exclusive means any- read to requirement suggest can be Congress’s intended standard thing about apparently five first came factors application it too we think favors into use in circuit Dalton United this mandamus standard of the deferential (In Dalton), F.2d 710 re States unlikely that It seems review. Cir.1984). There, that explained we novo in 72 intended de review would have is of mandamus “limited issuance writs complex ques- novel and hours of strictly exceptional those cases ... here, tions, as, as whether the sale such wholly acted where the inferior court with- of a a minor violation statute jurisdiction clearly its out or so abused any vio- subsequent cause of usurpation constitute discretion as to the gun lent сommitted with its act justify “in power,” and that order purchaser. extraordinary remedy, invocation of this party has the burden of petitioning II showing right to issuance of the that its alternative, petitioners contend ” undisputable.’ writ is Id. at ‘clear if traditional mandamus stan- even we went on to offer five Although application our apply, dards analysis, guide factors to help a “clear and indisputable” order of declined to the satisfaction of hold prece- inconsistent with our standard is necessarily those constituted a suf- factors not the simply dent. That case. to issue. at ficient basis for the writ Id. circuit we argue Petitioners Indeed, peti- 716-17. most of the cases five factors to determine whether consider five support cite in factors tioners mandamus, grant asking a writ acknowledge e.g., much. (1) has petitioner alternative whether (“The Qwest, F.3d 1182-83 (2) relief; petitioner means to secure required party seeking that a way not damaged will in a сorrectable he mandamus has no demonstrate (3) district on court’s order appeal; adequate other means of relief that his (4) discretion; an abuse of constitutes right indisputa- is ‘clear and the writ repeated often represents order error Roberts, ”); ble.’ United States v. persistent disregard and manifests a (10th Cir.1996) (“The petitioner rules; the order federal raises new to a writ of must demonstrate its problems issues of law important indisputable.”); clear and questions imprеssion. of first *8 Okla., Burrage, Inc. v. 59 Pacificare of Inc., Qwest re Commc’ns Int’l e.g., In Cir.1995) (“The (10th party F.3d (10th Cir.), cert. de 450 F.3d seeking must show the writ —nied, -, ”). indisputable.’ to the writ ‘clear and (2006); L.Ed.2d 429 United States Gon (10th zales, 1246, 1253-54 Cir. Ill 1998); McVeigh, States v. time virtually argu- no spend Petitioners Cir.1997). Contrary peti that order erred on the our earlier however, these five suggestion,
tioners’ merits, focusing their efforts on instead not an alternative to the “clear factors are doing so, they standard, standard of review. right” and indisputable explain fail tо the outcome would nec- as re- how reaffirmed change under court essarily ap- regular the standard who are active service. they Neither is it pellate review seek. As panel no member of the no judge us that obvious to the outcome would regular active on request- service the court change. ed that the be polled, also is denied. hold, record,
If this we were on daughter petitioners’ is a victim meaning
within the effectively per
would se establish rule by adult any using harm inflicted аn
gun illegally he or she obtained as minor directly proximately by caused gun.
seller of In the instant record, on Glade Mackenzie NAVAIR, INC., Plaintiff-Appellant, Sulejman Talovic knew was a hands; gun changed minor at the time the on ques-
the record before us is silent AMERICAS, INC.; Systems, IFR IFR tion Mr. knowledge whether Hunter had Inc.; Aeroflex, Inc., Defendants- firearm, Mr. Talovic’s intentions with the Appellees. see Order Mr. No. 07-3008. apparently Talovic was an adult when he 6; committed his terrible crimes. Id. at United States Court оf Appeals, Appellee’s Response to Petition for Writ of Tenth Circuit. sure, Mandamus, BEx. at 2. To be some gun courts hold the seller of a to a March per minor in of a se violation statute by of harm cause inflicted (during minority)
minor his or her with sure, gun. And to be there are courts rule, apply per
that refuse to se but will by
hold sellers liable for harm inflicted (again, during minority)
minors their
there is some indicia that the seller of the intent to knew of minor’s misuse
it. petitioners But us to no directed
authority any kind that harm suggesting adult gun purchased
inflicted with a is,
during adult’s minority without
more, directly per proximately se gun. Thus,
caused the seller of the
they fail even suggest to demonstrate or adopting proposed
how standard of affect
review would the outcome of their
petition.
* * * rehearing petition panel is de- rehearing
nied. en banc judges all
was transmitted to