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.
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,
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
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.
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
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
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
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
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
traditions that led to the Fourth Amendment's adoption or that have been served by its implementation? The most that can be said, therefore, is that both these conceptions of reasonable privacy expectation play a role, and that the Court's very case-specific analyses vary with the setting and the nature and degree of the intrusion.43 The most useful analogies to explosives detection questions stem from cases involving thermal imaging.
Forward-looking infrared receivers (FLIRs), or thermal imagers, permit an examiner to compare the heat emanating from some objects within a building to that of surrounding objects. Virtually all objects, even cold ones, emit infrared radiation. A thermal imager collects infrared radiation emitted by an object and then displays a visual image in the imager itself or on a monitor. Warmer images appear lighter on the display, and typically the imager is capable of electronically enhancing or reducing features and assigning colors to different temperature levels. Some imagers are capable of registering temperature differences as low as 0.2 degree Celsius. The thermal imager does not itself emit beams or rays but only passively collects infrared radiation emitted by the object being observed. FLIRs do not yet produce a distinct image of a person, object, or activity within a structure, unless, for example, a person has body pressed against a window. Rather, thermal imaging merely reveals the relative quantity of heat that objects produce.44
Thermal imagers are most often used to detect indoor marijuana "grows," which require powerful heat lamps for the marijuana to flourish. FLIRs enable police lacking probable cause to detect sources of extreme heat consistent with a marijuana grow in a home, barn, shed, or garage. Such detection then provides the probable cause that enables the police to obtain a search warrant.45
Most courts facing the question have concluded that thermal imaging is not a Fourth Amendment search.46 Some courts have, however, disagreed, or have found FLIR use to constitute a search under state constitutions.47 States are free to provide more (but not less) protection under their state constitutions than does the federal constitution.48 Courts considering these questions have taken three approaches: the waste-heat approach, the canine-sniff approach, and the technological approach.
a. The Waste-Heat Approach
The waste-heat analogy is based on California v. Greenwood.49 There, a neighborhood trash collector turned garbage bags left by Greenwood on the curb outside of his home over to the police at their request. An officer searching the garbage bags found evidence of drug use, which led to a warrant and subsequent search of Greenwood's home. That search revealed cocaine and hashish inside. The critical question was whether the garbage bag invasion was a search.
The Court answered this question "no" for three reasons. First, it is common knowledge that plastic garbage bags on a public street are readily accessible to
animals, children, scavengers, and snoops. Second, the garbage was voluntarily left on the curb by Greenwood to be conveyed to a third party, who might have sorted through the trash. Consequently, Greenwood could not reasonably have expected the trash bag contents to remain private.
Heat from marijuana grows, say some of the courts finding that FLIR use is not a search, is a form of human garbage. Critical to some of these courts is that waste heat from marijuana grows is consciously vented outside the structure containing the grow, thus exposing the heat to the public, with no effort made to impede the heat's escape or exercise dominion over it.50 But other courts have found the analogy to hold even if no special efforts were made to vent heat.51
The problem with this approach, however, is that it does not address the fact that waste heat, unlike garbage, can be detected only by means of a technologically advanced device. It is not readily accessible to "animals, children, scavengers, snoops, and other members of the public," as was the garbage in Greenwood. Furthermore, since dissipation is an inevitable result of heat production, it does not require a deliberate act nor is it preventable in the same way that one can conceal incriminating garbage. The laws of thermodynamics dictate that no matter how much one insulates, heat will still escape. Moreover, the fact that one insulates to keep heat in indicates a subjective expectation of privacy.52
These critics of the "no search" position, sometimes implicitly,53 sometimes explicitly,54 recognize that central to Greenwood was the Court's notion of "assumption of risk." This notion, never clearly developed by the Court, seems to be that information voluntarily conveyed to a third party, where the suspects do or should understand that there is a risk of that information's being further exposed to others, results in the suspects' "assuming" that risk.55 Consequently, any subjective expectation of privacy by such suspects is unreasonable. But, because we have no control over heat emanations without taking extraordinary steps to do so, we cannot be said voluntarily to convey heat signatures from our homes, garages, offices, or cars. Therefore, we do not assume the risk of heat observation.
This critique seems to have equal force with explosive detection technology. For example, emissions from taggants will occur whether the person possessing the taggants wishes such emissions to continue or not. The assumption-of-risk analogy fails.
b. The Canine-Sniff Approach
The canine-sniff analogy, while arguably subject to criticism regarding FLIRs, does work for many explosives detection technologies. A canine-sniff of luggage at an airport is not a search, the Supreme Court has held.56 Such sniffs do not require opening luggage, nor rummaging through luggage contents, nor exposing noncontraband items that would otherwise remain hidden from view. Consequently, reasoned the Court, the manner in which the information is obtained
is much less intrusive than in a typical search. More importantly, held the Court, the "sniff discloses only the presence or absence of narcotics, a contraband item."57
FLIR use, many lower courts have held, is also nonintrusive, causing no embarrassment to the subject. Indeed, the subject is not even aware that thermal imaging is taking place. Nor does such imaging subject him to physical harm, inconvenience, or discomfort. Furthermore, only purely physical facts, not protected communications, are disclosed.58
Other courts reject the dog scent analogy because thermal imagers provide information about both legal and illegal heat emanations, unlike the more discriminating dog-sniff, which reveals only illegal contraband.59 There is no reasonable privacy expectation in contraband. Moreover, the radiation of excessive amounts of heat can be consistent with perfectly legal activities, ranging from growing African violets60 to operating a pottery kiln.61 Furthermore, FLIRs are often used to detect home heat emanations, and lower courts have recognized that even dog-sniffs can be searches if directed toward a home,62 which traditionally receives the highest constitutional protection.63
These criticisms of FLIR use either are unconvincing or do not apply in the context of explosives detection technology. The committee did hear from one speaker who suggested tagging vanillin, a substance that not only is perfectly legal to possess but also has many common uses unrelated to explosives. In general, however, explosives detection technologies would reveal (subject to a relatively small error rate) only either explosives or substances commonly used as explosive precursors.64 While it is not necessarily illegal to possess explosives or their precursors, such possession is often highly indicative of illegal activity. The logic of United States v. Place65—that it is not a search to detect only contraband (items illegal to possess)—should extend to detection of "pseudo-contraband" (items illegal to possess under the circumstances).
For example, in Adams v. Williams,66 an officer received a tip that a man sitting in a car possessed a gun at his waist. The United States Supreme Court found reasonable suspicion to frisk the driver, even though, as the dissent pointed out, possession of a gun was not necessarily illegal. Rather, only possession of an unlicensed weapon was illegal, yet the officer had no knowledge regarding whether the driver had such a license.67 Nevertheless, apparently the suspicious circumstances—a man sitting alone at night in a car—combined with a trustworthy tip and great potential physical danger, justified the police officer's action. While Adams clearly involved a search—the officer's reaching his hand into a car—the Court's willingness to find a significant indication of illegal possession under the circumstances suggests a broad reading of the holding in Place. Thus, if an explosive detection technology revealed that a truck parked next to a federal office building in a downtown urban area was filled with ammonium nitrate, there would seem to be no legitimate reason apparent for the truck's presence. A
court might, therefore, be willing to view the technology as revealing only pseudo-contraband and thus not a search.
The pseudo-contraband argument has never, however, been expressly adopted by the Court, and so caution is advised. Because ammonium nitrate has many legal uses, including agricultural uses, the ammonium nitrate example may indeed be questionable. Less questionable would be the same fact scenario but resulting in a finding of the presence of explosives, whose presence in large quantities outside an office building would be particularly hard innocently to explain. Law enforcement research in other high-technology areas has recognized this problem. Thus research into "smart gun" detectors, which will passively detect magnetic emissions from both lethal and nonlethal metallic objects, will contain software that will compare those emissions to preprogrammed "profiles" for different weapons. The detector will react only if a lethal weapons profile is matched.68 The dog-sniff analogy may, therefore, hold for some explosive detection technologies under some circumstances but not others. One particularly important circumstance, as with the dog-sniff cases, would be that the technology not be used to detect items in someone's home or on their curtilage (areas immediately adjacent to an intimate part of the home).69
Importantly, it should not matter whether passive or active explosive detection technologies are used, despite some courts suggesting the contrary.70 The Supreme Court explicitly rejected over 30 years ago the line of reasoning that requires a physical intrusion to constitute a search.71 Of course, invasive physical intrusions—ones that cause embarrassment, inconvenience, pain, or physical harm—are important factors in determining whether there is a search.72 But even active explosive detection technologies are unlikely to involve any significant danger.
c. The Technological Approach
Courts taking a technological approach rely on those Supreme Court cases addressing the use of the technology to observe what could not as easily be seen with the unaided eye. One line of cases, for example, has made it clear that a beeper may be used to track the transportation of precursors used in illegal drug manufacture to a defendant's residence73 but not to continue such tracking inside a residence.74 The difference between the two situations is that the former merely made it easier for police to observe that which was already open to public view—the movements of a car. The latter situation—continuing monitoring in the home—by contrast involved "indiscriminate monitoring of property that has been withdrawn from public view," thus presenting "far too serious a threat to privacy interests in the home to escape entirely some sort of Fourth Amendment oversight."75 Thermal imagers, because they reveal information about the home not otherwise commonly open to public view, would thus seem more like monitoring the beeper in the home and thus a search.
But courts holding otherwise under the technological approach see the beeper cases as modified by Dow Chemical Co. v. United States.76 There, the court held that the taking of aerial photographs of an industrial complex from navigable airspace is not a search. The court reasoned:
Here, EPA was not employing some unique sensory device that, for example, could penetrate the walls of buildings and record conversations in Dow's plant's offices, or laboratories, but rather a conventional, albeit precise, commercial camera commonly used in mapmaking. … It may well be, as the Government concedes, that surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant. But the photographs here are not so revealing of intimate details as to raise constitutional concerns.77
Thermal imagers, because they are a technology not generally available to the public and can reveal activities within the sanctity of the home, would seem to fall outside this logic. Nevertheless, courts taking a technological approach to FLIRs have instead seen the crucial inquiry as whether "intimate details" were revealed. These courts do not see heat signatures as involving such intimate details.78 Other courts have stressed that privacy interests inhere not in the heat but in the domestic activities revealed by the generation of that heat. People do, say these courts, retain a reasonable expectation of privacy in the undetected, unmonitored performance of those domestic activities not knowingly exposed to the public.79
But explosive detection technologies used in settings other than the home raise no such danger of revealing "intimate details." The presence or absence of a taggant or an explosive is certainly not "intimate" information. Moreover, despite some Supreme Court language arguably to the contrary,80 how widespread a technology is should not necessarily be determinative. Under such logic, the more widely used and publicized is a new technology, the less individuals can be said to have a reasonable expectation that their conduct will be shielded from such technology. That would give the government virtually unlimited discretion to define for the people what privacy expectations are reasonable. While the state undoubtedly has some such discretion, largely in areas long subject to government regulation (this includes automobiles, which are highly regulated),81 the Court is unlikely easily to extend that discretion to ordinary criminal searches of persons, homes, or even businesses, absent some compelling justification.82 The setting in which, and purposes for which, a technology is used will thus be important in gauging whether the widespread nature of a technology renders expectations of being protected from it reasonable. There are thus, for example, arguments that there is no longer a reasonable expectation of privacy from airport metal detectors, for safety needs are high and passenger expectations have been reconditioned.83 In any event, that a technology is not yet in widespread use is also unlikely to be determinative, for the Court's discussion
of how common a technology is, seemed, as many lower courts have recognized, linked as well to other factors of nature and setting.84 Given the nonintrusive nature of explosive detection technologies, their general limitation (unlike x-ray scanners, high-resolution radar, and magnetometers) to detecting only dangerous or potentially dangerous materials without creating images of persons or property, and the practical needs of law enforcement, the courts might indeed be quite willing to view any objections to these techniques' invading privacy as unwarranted in many settings. The reduced expectation of privacy in automobiles and in airport screening portals suggests at least two settings where this will be true. consequently, there being no search in many settings, there will often be no need for a warrant, probable cause, or even reasonable suspicion before using many explosive detection technologies.
2. Administrative Searches
Even if use of explosive detection technology constitutes a search, such a warrantless, suspicionless search might still be reasonable if fitting within a well-recognized exception to the warrant requirement.85 The administrative search exception might meet this need in certain settings.
"Administrative searches" are those conducted for a non-criminal-investigation-related purpose, sometimes referred to as "special needs beyond criminal law enforcement." For such searches, the Court eliminates or modifies both the warrant and the probable cause requirements. Instead, reasonableness balancing is undertaken to come up with a new rule—for example, "no warrant but reasonable suspicion," or a "warrant but one justified by certain administrative criteria" (e.g., a safety inspection of any uninspected building over a certain age) and not requiring probable cause. While many new administrative search cases are likely to be unique in some significant respects and thus not within a previously decided rule for a certain class of cases, the Court will at least analogize to aspects of, and justifications for, earlier rules in crafting a new one. Examples of administrative searches include those done to maintain school discipline, prevent drunk driving, or detect illegal aliens.86
Because an administrative search is by definition one done for a purpose other than enforcing the criminal laws, the validity of such searches should turn on the absence of pretext. Thus, an apparent administrative search in fact motivated by the desire to apprehend criminals should fall outside the administrative search exception. The Supreme Court has recently made clear that this is indeed the law,87 despite the Court's rejecting pretext inquiries under most other Fourth Amendment exceptions to the warrant or probable cause requirements.88 The problem with explosive detection searches is that they often appear to have dual purposes serving an administrative need, such as protecting the safety of airplane travelers or federal workers, and catching and prosecuting those who threaten such safety. Nevertheless, while the Court has not been clear on the point, dual-purpose
searches designed primarily to protect public safety should fall within an administrative search exception.
In New York v. Burger89 the Court squarely faced a defense effort to invalidate an administrative search because of claimed dual purposes. The New York City Vehicle and Traffic Law had authorized the police to conduct inspections of automobile junkyards for required records, permits, and vehicles subject to the record-keeping requirements. When police conducted such a search of Burger's junkyard business, they found that he was in possession of stolen vehicles and parts, arresting him for possessing stolen property and being an unregistered vehicle dismantler. He sought to suppress the results of the search on the theory that the administrative scheme was in reality designed to give the police an expedient means of enforcing penal sanctions for possession of stolen property. The Supreme Court disagreed, upholding the search as fitting within the well-recognized administrative search exception for "closely regulated" industries.
In doing so, the Court concluded that the inspection was made solely pursuant to the administrative scheme and not as a pretext for gathering evidence of criminal activity. Yet the Court acknowledged that the "substantial government interest" served by the administrative scheme's search provision was preventing automobile theft. Moreover, the state could rationally believe that regulating junkyards would further that antitheft agenda because automobile junkyards and vehicle dismantlers provide the major market for stolen vehicles and parts. To be credible in deterring such theft, unannounced, warrantless, suspicionless inspections were necessary. But preventing theft is also precisely the purpose of criminal laws penalizing possession of stolen property.
What distinguished the administrative search from a criminal one, said the Court, is that the two schemes serve different subsidiary purposes and prescribe different methods of addressing the same ultimate problem. The regulatory scheme addressed the theft problem by ensuring that vehicle parts passing through junkyards could be accurately identified. The criminal law addressed the theft problem by criminally punishing the thieves and those who made the thievery both possible and worthwhile. That regulatory inspections might uncover evidence of crime did not thereby render the regulatory scheme pretextual.
In other contexts, the Court has at least implicitly applied similar logic to the administrative searches done to prevent violent crime. Thus the Court has upheld regulatory searches pursuant to the Gun Control Act, which was designed "to prevent violent crime and to assist the States in regulating the firearms traffic within their borders."90 Similarly, the Court has upheld, under certain circumstances, sobriety checkpoints designed to apprehend drunk drivers before they caused accidents.91 And lower courts have upheld general passenger screening procedures to protect air traveler safety.92 Use of explosives detection technology for the primary purpose of protecting the safety of persons and property in administrative settings should, therefore, fit within administrative search exceptions, despite the potential use of positive results against defendants in criminal
proceedings. On the other hand, if police suspected a subject of criminal wrongdoing, but, lacking probable cause, they maneuvered him into an administrative search setting for the specific purpose of gathering evidence of crime, that would likely be an invalid pretextual search.93
Apart from having a primarily administrative purpose, courts will consider a variety of other factors in determining whether there is a valid administrative search. First, they will consider the weight of the state's purported interest. Related to this inquiry are two others: (1) the effectiveness of the chosen means in attaining the state's goals, and (2) the availability of other less restrictive (not necessarily the least restrictive) alternative means for pursuing those goals.94
Second, the degree of the individual's privacy interest must be gauged. Generally searches of cars or businesses are viewed as less invasive of privacy than are searches of homes or persons. Additionally, privacy interests are considered small for "pervasively regulated industries" in which a history of extensive government regulation has long served to expose the workings of such industries to public view, thus suggesting reduced privacy expectations.95
Third, limitations must be placed on the discretion of government actors. While traditional warrants ordinarily serve this purpose, this third inquiry assumes that there are some strong government justifications for rejecting the traditional warrant requirement rule. But, in its place, there must be other adequate procedures designed to avoid abuse of government discretion. Clear rules in statutes, regulations, or internal administrative policy statements telling government actors when and how to conduct their searches may be one way to limit such discretion.96
With explosives detection technology, the primary interest is the safety of persons and property. The Court has upheld warrantless, suspicionless blood and urine testing of employees involved in certain train accidents to uncover drug usage and authorized breath and urine tests for employees violating certain safety rules because of the heavy weight that the Court attaches to safety concerns.97 Similarly, the Court has approved suspicionless urine testing of United States Customs Service applicants for jobs involving firearms or drug interdiction because of the state's compelling interest in the physical fitness and integrity of those involved in drug interdiction and in preventing drug users from carrying firearms.98 As the perceived threat level rises, the government's interest in safety rises, too. The powerful interest in physical safety, in light of the growing perceived danger of terrorism and the huge damage that even a few serious incidents can cause, already justifies use of metal detectors on persons and routine, administrative searches of airplane baggage, searches that use imaging technologies that are far more intrusive than most explosives detection systems explored in the committee's report.99 Furthermore, a terrorist by definition seeks to act in secrecy, yet to cause enormous harm. Requiring a warrant or probable cause may impose a burden on law enforcement that is hard to meet quickly, with potentially catastrophic resulting loss of life. While informants and other low-technology
methods of investigation are available, they are unlikely to be as consistently or quickly effective as trace detection. Nor are informants likely to have the same deterrent value for the more casual, less carefully planned attack. Suspects generally do not know that they are dealing with informants, but suspects will know of widespread use of explosives detection technology (just as everyone knows about technologies used to screen airplane passengers). Such widespread knowledge should contribute to deterrence. Trace detection methods are thus relatively effective, with few, if any, less restrictive approaches likely to work as well.100
The analysis becomes more complicated, however, when we weigh the interest in safety against the degree of intrusion on the individual's privacy interest. In general, trace detection technologies are not very intrusive, causing little inconvenience, embarrassment, or risk of harm. Indeed, these technologies might conceivably sometimes be used without a subject's knowledge. The courts will, however, find different degrees of intrusion depending on where the technologies are used. Given growing expectations of minimally intrusive searches at airports and in entering many government buildings, such as courthouses, the degree of intrusion in entering these settings might be small.101 Moreover, the reduced expectation of privacy in automobiles might lead courts to treat routine trace detection searches of cars as relatively unintrusive.102 Efforts might have to be made, however, to minimize the intrusion by announcing to the public where, when, and how it will be used and significantly limiting officer discretion in ways analogous to those used with border checkpoints and drunk driving roadblocks.103
In schools, however, the court's assessment of the degree of intrusion is even more ambiguous. Thus the Court has permitted a search of a junior high school student's purse for cigarettes on less than probable cause because of the need for swift and informal action to maintain discipline in the schools.104 But children's privacy interests required some protection, so the search required at least reasonable suspicion, something well beyond a mere hunch or inarticulate suspicion.105
Yet the Court permitted completely suspicionless random drug testing of student high school or grade school athletes.106 Students wanting to participate in athletics were required to sign a testing consent form. Each week, 10 percent of athletes' names were drawn for urine testing by same-sex monitors. Boys remained fully clothed at the urinal, their backs to the monitors. Girls produced samples in an enclosed stall, with the monitor outside listening for the normal sounds of urination and then testing the vial for temperature and tampering.
The Court approved of such searches, finding little invasion of legitimate privacy expectations. This was so because school sports are ''not for the bashful;"107 that is, student athletes already know that they must suit up in public locker rooms, shower and change afterwards, and use toilet stalls without doors. Moreover, by choosing to go out for the team, they voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally, and much like closely regulated industries. The resulting reduced
expectation of privacy, held the Court, was clearly out-weighted by the state's interest in preventing the physical, psychological, and addictive effects of drugs on maturing nervous systems, especially of those for whom the state has undertaken a special responsibility for care, and for athletes in particular, who face substantial physical risks from impaired performance.
Explosives detection technologies fall in the uncertain netherworld between the student purse search and drug testing of high school athletes. Such technologies would be used on all students, rather than on a subclass, such as athletes, with a reduced expectation of privacy. On the other hand, unlike the purse search, screening all students entering a school would be a routine procedure, not focused on any one individual. Moreover, unlike the purse search, but like the testing of student athletes, the physical safety of those for whom the state has undertaken a special responsibility for care would be of issue. Furthermore, most of the technologies would react only (always subject, of course, to some relatively small error rate)108 if explosives or their precursors were present, thus not creating the danger of rummaging through innocent intimate items as are involved in searching a purse. In the school setting, there can be few, if any, plausible innocent explanations for possessing explosives or their precursors. Any invasion of privacy would thus seem quite small relative to the interests involved.
Finally, limiting the discretion of police in when and how they use explosive detection technology is central to the validity of any administrative search.109 Written rules sharply limiting discretion have the greatest chance of surviving judicial scrutiny.110 For example, a rule requiring the screening of all persons entering an airport, a federal office building, or a school leaves police no discretion whatsoever. Broader discretion might be permissible if carefully guided. Thus suspicionless border checkpoints—a kind of seizure—were approved by the Court where field officers had no discretion in choosing the location and timing of the checkpoints (those decisions were made only by high-ranking officers, based on safety and effectiveness), where they operated in a regularized manner, using a fixed set of written guidelines to ask questions.111 Similarly, field officers might arguably be permitted to use explosive detection technology on a truck parked near a federal office building if the decision to do so is largely controlled by written guidelines. Such guidelines might specify, for example, that police shall use explosives detection technology when any vehicle without a valid government parking sticker is parked within 100 feet of a federal office building. Given the reduced expectation of privacy in automobiles, such a search done pursuant to clear guidelines might have a significant chance of being seen as reasonable.
The likely success of relying on the administrative search exception as applied to explosives detection technology thus turns on the setting (airport, school, roadway, federal office building) and the limits imposed on police officer discretion. it is true that recently the Supreme Court has reaffirmed the importance of
the "normal requirement of individualized suspicion" in overturning Georgia's requirement that all candidates for designated state offices certify that they have taken a drug test and that the result was negative.112 In doing so, however, the Court reiterated that "where the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as 'reasonable'—for example, searches now routine at airports and at entrances to courts and other official buildings."113
3. Stop-and-Frisk Exception
A stop-and-frisk exception to the Fourth Amendment permits government agents to "stop" (a brief, minimally intrusive seizure for the purposes of investigation) a suspect whom the officer reasonably suspects of committing, or having committed, a crime.114 If the officer also has reasonable suspicion to believe that the suspect is currently armed and dangerous, then the officer may "frisk" the suspect, that is, briefly pat down the suspect's outer clothing, or the passenger compartment of a car that the suspect may have been driving when stopped, to search for weapons. No warrant is needed for either a stop or a frisk.115 The justifications for dispensing with the usual warrant and probable cause requirements are the need for quick action, the potential physical danger to the officer, and the minimal nature of the intrusion.116 These "Terry" (named after the case validating these categories of seizure and search) stops and frisks are, unlike administrative searches, ordinary criminal-investigation-related intrusions. Consequently, again unlike many (but not all) administrative searches, stops and frisks still require some level of individualized suspicion, that is, suspicion that the particular individual involved is dangerous or is involved in crime.117 However, the level of suspicion—reasonable suspicion—is lower than the usual probable cause.118 Reasonable suspicion must be based on specific and articulable facts rather than a mere hunch.119
A potential exception to this individualized suspicion requirement recognized by lower courts is a "selected class stop-and-frisk."120 Here, the reasonable suspicion is directed at anyone fitting within a small group of people singled out for further scrutiny. Passengers setting off a metal-detector alarm are an example.121 Another example would be selecting out potential hijackers or terrorists based on a profile, a set of behaviors or characteristics claimed to identify dangerous criminal actors.122 The court in United States v. Lopez-Pages123 approved of criteria that selected out 0.28 percent of all passengers, with only 6 percent of the 0.28 percent found to be carrying weapons. It is unclear whether the Supreme Court would today approve of such searches based on criteria having relatively low predictive value. However, criteria that are highly accurate, logic suggests, should have a high chance of approval. But if we had such criteria for identifying terrorists, that might call into question the whole administrative search justification, for there would be a less restrictive alternative—use
of a highly accurate profile—to screening every passenger. On the other hand, while the availability of less restrictive alternatives still seems to be a significant factor in reasonableness balancing, there is no requirement that the least intrusive means be chosen.124
Reasonable-suspicion-based searches are ordinarily unnecessary where the administrative search exception permits suspicionless searches. However, the Terry justifications—the needs for quick action and protecting physical safety by a minimal intrusion—would seem to include most of the technologies examined in the main text of this report.125 Reasonable suspicion not only is a lower quantum of evidence than probable cause but also can be based on lesser-quality evidence.126 Therefore, if Terry's logic were extended by the courts to the technologies here, those technologies might be used based on relatively modest evidence of wrongdoing, even if an administrative search exception does not apply. Once again, suppose that a truck is parked outside a federal building. Police receive an anonymous tip but one that, by its detail and its being corroborated in key parts by further investigation, gives some significant evidence of its trustworthiness. That might be inadequate to establish probable cause but sufficient to demonstrate reasonable suspicion.127 Having established reasonable suspicion, the police could use a trace detector. A positive response would then establish probable cause, justifying a full-blown search and seizure of the truck.
Second, reasonable suspicion adds flexibility to increase the invasiveness of searches. If, as an illustration, hand-held trace detectors for nonmetallic explosive materials were unavailable while airports are still using metal-detection devices, a subject carrying a small nonmetallic explosive device would not activate the detectors. But if airport employees had, on the particular facts before them, reasonable suspicion to believe that the subject was dangerous, they would nevertheless be free to stop and frisk him.128
B. Identification Taggants
Identification taggants, unlike detection markers, are usually collected and analyzed from postblast debris. Alternatively, if an explosive device is found and disrupted before it goes off, identification taggants may be collected from the unexploded bomb. These taggants are, therefore, not used to justify searches or seizures and thus do not involve the Fourth Amendment. Instead, identification taggants are collected in the hope that they will aid in tracking down the wrongdoer. As one factor in a totality-of-the-circumstances analysis of probable cause to justify a suspect's arrest, identification taggants do involve the Fourth Amendment. However, that inquiry is largely a case-specific one, for it is unlikely that an identification taggant standing alone could narrow the field of suspects to one, two, or even three people. No worthwhile generalizations can therefore be made in this report concerning identification taggants and the Fourth Amendment. Such taggants' main use will thus be at trial.
But identification taggants will be of little use at trial if the results of the identification are inadmissible in court. For many years, the prevailing test for admissibility was the Frye general acceptance test. This test asked whether a novel scientific technique was generally accepted in the "relevant" field. The term "general acceptance" was never precisely defined, and the "relevant" field or fields might be subject to debate in a particular case.129 The field was, however, meant to be defined in a way that would minimize bias.130 For example, as to the now discredited "voice identification'' technique, the relevant field could not be "voice identification technique experts" because those who invented or routinely used the technique had a vested interest in its being accepted.131 Moreover, the Frye test, properly understood, required acceptance of both (1) the scientific principles underlying a particular technique and (2) the technique's ability to apply those principles to accomplish a particular goal.132 Thus "DNA" identification would require acceptance of both (1) the principle that every human's DNA (except for identical twins) is unique and (2) the technique's capability, under certain specified conditions, of indeed identifying one unique DNA sample, whose source is unknown, as matching another DNA sample whose source is indeed known. Courts were vague about whether the "validity," the "reliability," or both, defined in the way that these terms are used in the scientific community, need to be generally accepted.133 The better view is that both must be generally accepted.134
More recently, some states began to use the "relevancy" alternative test to Frye. This test turns on a trial court's flexibly weighing a number of factors; that is, the court makes a policy judgment, based on numerous factors, that the policies underlying evidence law will best be served by admitting or not admitting evidence concerning a particular scientific technique.135 Thus a technique of only modest predictive value might be admissible if the court believes that a jury would not give the technique undue weight.
One of the most well-known variations of the relevancy test looked to these seven factors:
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the technique's general acceptance in the field,
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the expert's qualifications and status,
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the use that has been made of the technique,
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the potential rate of error,
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the existence of specialized literature,
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the novelty of the invention, and
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the extent to which the technique relies on the subjective interpretation of the expert.136
Note that in this test, "general acceptance" is but one factor to be weighed and balanced by the trial court in determining whether a jury is likely to give the evidence its appropriate weight. This contrasts with the Frye test, which had
previously controlled in federal court. The Frye test was recently replaced by the test in Daubert v. Merrell Dow Pharmaceuticals, Inc.137 The Daubert test, a variant on the relevancy approach, requires that scientific evidence be both "relevant and reliable." The word "reliable" refers to a legal conclusion rather than scientists' understanding of reliability. Reliability is thus once again a policy judgment to be made by the trial court based upon these factors:
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Have the theory (the underlying scientific principle) and the technique applying that theory been tested, by which the Court apparently meant, "Has a hypothesis been generated, and have adequate efforts been made to falsify that hypothesis, with no such falsification yet having been achieved?"
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Have the theory and the technique been subjected to peer review and publication?
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What is the known or potential error rate?
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Are there standards controlling the technique's operation, that is, an authoritative statement of the circumstances under which the technique's application to a particular case will be considered trustworthy?
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Has the principle or technique attained "widespread acceptance" (something undefined but clearly less than general acceptance)?138
There is no need for a "yes" answer to every question for evidence to be admissible. These questions merely help to guide the trial judge's policy judgments. Moreover, these factors are not exclusive. Other factors noted in the relevancy test discussion above, but not mentioned in a (indeed any) logically useful factors, may be considered.139
Many of the identification taggants considered by the committee rest on sound, broadly accepted scientific principles. However, not one of the techniques has faced adequate empirical testing or peer review to survive Daubert's scrutiny. This conclusion is better understood by recognizing the six stages of development of a forensic scientific technique:
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Stage 1: A theory is postulated.
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Stage 2: Experiments are designed to verify the validity of the theory.
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Stage 3: If the theory's validity is not disproved after a searching inquiry and empirical testing, it is "proven" valid and a court then appropriately may take judicial notice of the theory. This result is unlikely to occur at this stage, however, because no vehicle exists for translating the theory into relevant evidence in a law suit.
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Stage 4: A technique is devised, or an instrument is designed and built, that will permit the theory to be applied practically in a forensic setting.
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Stage 5: After a methodology has been devised, further tests must demonstrate a positive correlation between the results and the underlying theory.
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This stage is necessary to prove that the effects observed are not the result of some unidentified cause.
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Stage 6: After the test has been shown to yield reliable results that are relevant to disputed issues in a law suit, a court may admit these results properly into evidence, and a qualified expert may interpret the results before the jury.140
Most of the techniques studied by the committee have not passed beyond stage four.141 Furthermore, there have yet to be protocols or standards for proper forensic use of these techniques articulated by any authoritative body. Nor have the minimal studies of one of the techniques been replicated, published in scholarly journals, or subjected to widespread peer review. While some courts may apply Daubert flexibly and sometimes reach inconsistent results, Daubert, as properly understood, should bar admission of most of the techniques studied by the committee at criminal trials, absent further testing.
III. CIVIL LIABILITY
A. Introduction
Unlike criminal prosecutions, which are instituted by the government against lawbreakers to preserve social order, civil lawsuits are usually brought by private parties against other private individuals, corporations, or entities (or sometimes against public or quasi-public entities like municipalities or utilities) to vindicate personal wrongs. Civil liability generally consists of two types of legal jeopardy: tort liability and liability for breach of contract. A tort is a civil wrong, occasioned by the breach of a publicly imposed duty, which causes personal injury to another. Breach of contract, by contrast, is the violation of a legally enforceable, privately created agreement with another, which causes the other to lose the benefit of her bargain and, in some instances, to incur additional, consequential loss. Although this discussion centers primarily on the potential tort liability of those who may be called upon to implement the approaches considered in this report, contractual theories of recovery are examined where appropriate.
This section is organized according to the technologies and regulatory controls that are analyzed, from a scientific standpoint, in Chapters 2 through 5 of the committee's report. Given the abundance of taggant and inerting methods, it is not practicable to separately address all of the existing products or concepts. Consequently, the available technologies are grouped into categories and analyzed according to their distinctive, shared characteristics. For each categorical approach, the discussion identifies who might be accused of wrongful conduct, who may be injured by the conduct and thus entitled to bring a civil action, what theories of recovery and defenses might be raised by the parties, any evidentiary issues that may arise during the litigation, and the likely strengths and weaknesses of each lawsuit.
B. Detecting Explosives, Preblast
As discussed in Chapter 2 of the committee's report, one way of stopping terrorist bombings is to discover the presence of illegal explosive devices prior to detonation. This may be accomplished in either of two ways: by searching for some intrinsic, distinctive property of the explosive or by looking for a tracer element that was added to the explosive, or one of its constituents, for the purpose of detection. Such technologies may be employed by public officials, such as state or federal law enforcement officers, or by private parties such as airlines or building owners. Either way, the search for the explosives, or the products and protocols used to carry it out, may prove injurious to those who are subject to such investigative intrusions. If so, liability may be premised on a variety of theories, including constitutional torts, invasion of privacy, defamation, intentional torts, negligence, strict liability for engaging in ultrahazardous or abnormally dangerous activities, and products liability.
1. Constitutional Torts
A constitutional tort is any violation of a constitutional right by a government, government official, or private party that entitles the victim to compensatory damages or injunctive relief.142 There is no single source of constitutional tort liability; rather, different causes of action apply depending on who is being sued and which constitution (federal or state) allegedly was violated. For example, where a federal agency or official conducts an unreasonable search or seizure, or effects an unreasonable invasion of privacy, in violation of the Fourth Amendment to the United States Constitution, the United States government may be found liable for any resulting damage.143 In addition, the offending federal agents themselves may be held accountable under the United States Supreme Court decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.144 Similarly, the Civil Rights Act of 1871145 imposes liability against state officials who infringe the federal constitutional rights of others under color of state law.146 Municipalities also may be held liable under this statute when the offending conduct comports with an official governmental policy.147 In addition, several states permit tort causes of action against state officials who violate their state constitutions.148 A few states even extend the state constitutional mandate to purely private citizens.149
The core ingredient of all these causes of action is proof that one or more of the aggrieved party's constitutional rights were trammeled by the defendant. In the context of explosives detection, the most likely complaint will be that some government official or corporate actor employed the technologies to carry out an unreasonable search or seizure of the victim's person or property. The viability of such claims will depend on the constitutional merit of the conduct under scrutiny. A thorough analysis of the relevant technologies, and their possible constitutional
infirmities, is offered in the previous "Criminal Prosecutions" section of this appendix. Thus, no further discussion is necessary here. Suffice it to say that, given the ability of these systems to invade private places, and their potential for giving false positive results, it is conceivable that such technologies will precipitate some complaints of constitutional overreaching. However, such intrinsic concerns will likely be counterbalanced by the important government objective of stopping terrorist bombing attacks, and can be ameliorated by implementing reasonable detection protocols (i.e., by running the operation in a proper time, place, and manner) that reduce the likelihood that the privacy interests of innocent parties will be needlessly curtailed.
The concepts of sovereign and official immunity provide further, defensive limitations to these constitutional torts. Historically, both the federal and the state governments, and their agents, were immune from civil liability under a doctrine called sovereign immunity.150 The federal government abandoned this doctrine in 1945 when Congress passed the Federal Tort Claims Act (FTCA).151 Most states followed suit by enacting statutes similar to the FTCA.152 Although the FTCA permits tort suits against the federal government, it recognizes several exceptional circumstances where the government remains shielded from liability. Only two of these exceptions are pertinent to the present discussion. The most important exception eliminates the government's responsibility for the "discretionary," as opposed to purely "ministerial," functions of its employees.153 Discretionary functions generally include any activity involving significant public policy decision-making.154 Thus, both the decision to institute a detection taggant program and the design or conceptualization of such a program probably would be considered a discretionary function. However, if the program were administered carelessly or recklessly—for example, by conducting individual searches unreasonably or without legitimate grounds for suspicion—the wrongful behavior would likely be deemed ministerial and could subject the government to tort liability.155 The other relevant exception to the FTCA originally held the government harmless for a number of its agents' intentional torts, including assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.156 Under this exception, if any government official, using any of the subject detection technologies, intentionally and unreasonably stopped, detained, and searched an individual, thus arguably committing the torts of false imprisonment, false arrest, or slander, the government would have incurred no responsibility for the victim's loss. However, following the passage of the FTCA, the intentional tort exception received a backlash of criticism, and has since been amended.157 Now, if federal investigative or law enforcement officers commit the torts of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution, the United States may be held accountable for the damage they inflict on others.158
Like governments, state and federal employees who conduct such searches
may be protected from civil liability under certain circumstances. The federal common law doctrine of official immunity grants certain federal executive officers, like judges and prosecutors, an absolute immunity from civil liability.159 An absolute immunity safeguards its holder from all liability, regardless of the nature of her conduct, so long as she acts within the scope of her authority.160 Other federal executive agents, including law enforcement officials, are protected by a qualified immunity.161 A qualified immunity evaporates when its holder knows, or has reason to know, that her behavior violates the law.162 While some state executive employees are shielded with absolute immunity,163 others are cloaked only in the protective garb of qualified immunity.164 Generally speaking, state officials sued under the Civil Rights Act of 1871 may assert only a qualified immunity for acts that are discretionary in nature.165 Under this defense, the state official will escape liability if she acted in good faith and if she did not know, nor should have known, that her conduct violated a clearly established statutory or constitutional right of the claimant.166 Government agents and private parties also may invoke traditional tort defenses such as public and private necessity and defense of persons or property. These defenses typically will justify intrusive searches if there is a reasonable need for the investigation and the inquiry is conducted in a reasonable manner.167 Ultimately, the viability of these defenses will depend on the same factors that justify a search under the Fourth Amendment. The considerations relevant to this determination are outlined in the "Criminal Prosecutions" discussion above and are not reexamined here.
2. Invasion of Privacy
Most of the available detection technologies permit their users to "see" things that are otherwise unviewable to the naked eye (or any other unaided sense organ). Such equipment may allow the user to look underneath clothing, inside baggage, or into the trunk of a motor vehicle. To effect these extrasensory searches, some extraordinary measures must be taken. People may be required to pass through choke-point portals, stand in front of hand-wand operators, or be touched by particle collectors. They may be bombarded by beams of low-level radiation—as is true of x-ray detectors, by air streams—as is common for some vapor detectors, or by magnetic fields—as is the case with nuclear magnetic resonance. What's more, the data obtained from these devices can be communicated and displayed in a variety of rather conspicuous ways—from producing digital readouts to sounding an auditory alarm to transmitting visual images of the subject to a stand-alone monitor. The problem, from a legal standpoint, is that these surreptitious intrusions may violate the privacy rights of those who must submit to these procedures.
Almost all states recognize a tort of invasion of privacy.168 Although there are numerous different versions of this tort, only three seem relevant to explosives detection.
a. Intrusion upon Seclusion
The first, and by far the most important, privacy cause of action is called intrusion upon seclusion. This tort, which applies to government officials (assuming no privilege) and private persons (e.g., airlines or other common carriers) alike, requires proof of three elements: (1) an intrusion by the defendant, (2) into a matter in which the plaintiff has a right of privacy, and (3) by a means that is highly offensive or objectionable to a reasonable person.169
As for the first element, courts have found that sensory-enhancing equipment—like binoculars, microphones, or cameras with telephoto lenses—may intrude on another's privacy if it permits access to otherwise imperceptible sights, sounds, or events170 even if the user employs such devices from a legal location.171 Under this analysis, vapor detection systems that collect particles from the exterior of the subject's clothing, or that analyze odors discovered outside the subject's property, are not likely to constitute an improper intrusion. This seems to hold true for the DMNB (2,3-dimethyl-2,3-dinitrobutane) taggant-vapor detection system recommended by ICAO for use with plastic and sheet explosives. Other technologies—like x-rays and quadrupole resonance—which actively emit radiation to locate explosives underneath clothing and inside baggage, seem sure to be considered intrusive. Neutron-based systems, which passively detect radioactive isotopes given off by explosive materials, will likely fall somewhere in the middle of this spectrum of intrusiveness.
The second element of an intrusion-upon-seclusion claim—whether the claimant has a privacy interest in the area intruded upon—often depends on what is being examined, and the time and place of the examination. Generally, a person has no privacy interest in things held open to public scrutiny.172 However, individuals may enjoy small enclaves of privacy as they walk or drive around in public. This would include things kept underneath clothing, things in packages or containers, and things stored in inaccessible portions of an automobile.173 With regard to explosives detection technologies, a search subject would seem to have little or no privacy interest in particles or vapors that extend beyond her clothing and property and into the public domain. On the other hand, insofar as x-ray or other imaging equipment permits others to visually enter these typically secluded areas, such devices may interfere with the subject's legitimate privacy interests.
The most difficult question is whether the intrusion afforded by taggants or other detection equipment would be deemed objectionable or highly offensive to a reasonable person. Courts applying this element have tended to focus on the following factors: was notice of the intrusion given (as where a department store notifies a customer that its fitting rooms are monitored);174 was the intrusion embarrassing or humiliating (allowing the viewer to see intimate parts of a claimant's anatomy);175 was the intrusion responsibly conducted, i.e., so as to minimize its adverse effect on the subject (in the fitting room example, ensuring that employees do not monitor customers of the opposite sex);176 and was there
good reason for the intrusion (e.g., a worker's compensation insurer surveilling a disability claimant to determine if he is malingering)?177 On this last point, courts will attempt to balance both the alleged victim's right to privacy and the defendant's right to protect his own significant interests and the interests of others.178 Given the strong public policy of preventing terrorist acts, most explosives detection technologies—especially less obtrusive forms like DMNB vapor detection—appear to have a good chance of surviving an intrusion-upon-seclusion claim, so long as they are reasonably administered.
To minimize the likelihood of litigation from imaging technologies, the following safeguards were recommended by the 1993 NRC Committee on Commercial Aviation Security: (1) the screening device should be set up at a location where the chances of a terrorist bombing attack are greatest, for example, at airports, law enforcement offices and other public buildings; (2) technologies that yield a high volume of false positive results—like thermal neutron and dipole systems—should be avoided or used only in conjunction with other devices; (3) a conspicuous notice of the search should be displayed at the screening site; (4) alternative screening procedures should be offered to those who object to imaging; (5) where the image portrays the contours of the body, only security officers of the same sex should be permitted to view the monitor; (6) only a small number of designated screening personnel should be allowed to examine the image; (7) irrelevant and potentially sensitive portions of a displayed image should be covered or masked; and (8) the image should be preserved for the shortest period possible; if a long-term record is needed, rigorous protocols for ensuring confidentiality should be instituted.179 Agencies using trace detection technologies also should be careful about how they collect samples. Where wands are employed to gather particles, special care should be taken to avoid contacting areas of the body (especially sex organs) that may cause a reasonable person to become embarrassed or humiliated.180 While vacuums or air stream devices are likely to be less intrusive, they, too, should be operated in a way that avoids awkward incidents, like lifting up a woman's skirt or blowing off a man's hair piece.
b. Publication of Private Facts and False Light Privacy Invasions
While the intrusion-upon-seclusion tort protects against invasions of private places, the other two relevant privacy torts prohibit the dissemination of sensitive information to the public. One who gives publicity to another's private matters is liable for invasion of privacy if the matters are not of legitimate public concern and their publication would be considered highly offensive to a reasonable person.181 In addition, if someone publishes information that places another in a false light, the former may be subject to liability if she recklessly disregarded the veracity of the published matter and the false impression communicated to the public would be considered highly offensive to a reasonable person.182
These torts may be applicable to the detection of explosives in a couple of
ways. If the operator's imaging monitor can be seen by members of the public, or if fixed images of the subject are made and passed along to (or fall into the hands of) the press, then the publicity given to such matters may be tortious. An image that (even remotely) portrays the subject's sex organs or some hidden deformity, or that reveals a potentially embarrassing possession like a prosthetic appliance, may be highly offensive if publicized to others. Also, an image or procedure that identifies the subject as a criminal (for example, pictures of the subject carrying what appears to be a weapon, but that actually is not; or screening protocols—like conducting intimate frisks or patdowns or making incriminating accusations in front of a large group of people—which suggest the subject's suspicious character, when she is in fact innocent) may place her in a false light. Nevertheless, the need for explosives detection tends to make such tactics a matter of public concern and thus more tolerable. In any event, most states recognize privileges that shield from liability federal and state officials acting within the scope of their authority and private parties attempting to protect their own interests or those of the public.183 Thus, if properly administered, detection programs that utilize tagging, portal screening, canine sniffing, and/or wanding should not present a substantial liability risk.
3. Defamation
Like false-light privacy invasions, defamation occurs when someone publishes a false fact that subjects the victim to contempt or ridicule and causes others not to want to associate with that party.184 Defamatory information can be published by words, pictures, or deeds.185 Thus, as mentioned above, detection images, pictures, or procedures that falsely convey to others that the subject is a criminal or has done something wrong may fall within the realm of defamation.186 But in defamation, unlike in false light privacy theory, a falsehood is considered published if it is communicated to just one person other than the victim.187 So if a passerby saw the image or incriminating search, and reasonably interpreted the sight in a manner that was both counterfactual and defamatory, those responsible for the false impression could be held liable for defamation. Before such a cause of action could be sustained, however, the plaintiff would have to show in addition that the publisher acted wrongfully and without privilege. This would likely be difficult to do. If the plaintiff were a public official or public figure, she would have to prove that the defendant maliciously published the information; if the plaintiff were a private person, she generally must establish the defendant's negligence.188 To make the latter showing, the claimant would have to prove that the detection equipment operator failed to observe the precautionary protocols outlined in the privacy discussion of the previous section. In the end, the great social utility of preventing terrorist bombings may make such checkpoints seem reasonable. In fact, there is a good chance that those
involved in explosives detection will be at least conditionally privileged to secure the lives of those endangered by bombing incidents.189
4. Intentional Torts
This does not mean that all detection programs are beyond the reach of tort law. There are a few intentional tort theories that might apply in this context. Of these, battery, false imprisonment and/or false arrest, intentional infliction of emotional distress, and trespass to chattels and conversion are the strongest prospects.
a. Battery
Battery is an intentional act that causes a harmful or offensive contact with another.190 Contact does not require a physical touching of the victim's body, but includes any harmful or offensive force exerted against the victim's clothing or piece of personal property held in her possession.191 One who passes through a detection portal that employs radiation or magnetic fields to search for explosives may claim that such exposure amounts to a harmful contact with her person. In theory, there may be some basis for this assertion. Courts have recognized that battery may result from intangible or invisible forces like pipe smoke192 or the AIDS virus.193 Because radiation and electromagnetic fields may produce adverse bodily effects, they may be deemed to consummate a contact for purposes of a battery claim. However, except for nuclear magnetic resonance detectors (which produce unacceptably strong magnetic fields)194 and x-ray and deuterium interrogation (which utilizes ionizing radiation),195 it is unlikely that any of the other detection technologies under scrutiny would be considered harmful. In fact, coincident gamma markers, a promising concept still in need of further study, are known to emit negligible levels of radiation; and DMNB markers, which have been endorsed by the ICAO, give off no radiation at all. Thus, for the most part, the harm-based theory of battery is not likely to present serious legal obstacles for these technologies. However, even if the subject is not exposed to a harmful substance, she still may claim that she sustained an offensive contact during the screening process. Overly zealous frisking or inappropriate wanding may constitute an objectively unreasonable and offensive contact. As noted in the previous section, any intimate touching that must be performed should be conducted by a member of the same sex, in a private location with a minimal amount of contact. If these standards are satisfied, a typical security search is not likely to prove tortious.
b. False Imprisonment and/or False Arrest
False imprisonment consists of the intentional confinement of another against
her will.196 False arrest, which is a subcategory of false imprisonment, is the detention of a person suspected of committing a crime by one asserting state authority.197 Generally, the restraint of a person is considered wrongful if it is initiated without probable cause.198 Probable cause has been defined as ''a state of facts that would lead a [person] of ordinary caution and prudence to believe, or to entertain an honest and strong suspicion, that the person arrested committed the offense charged."199 A screening process that unnecessarily delays or detains certain subjects could very well fit this description. To avoid liability, the person or official conducting the search typically must identify some specific reason for stopping the plaintiff (e.g., a suspicious looking individual entered a bank looking nervous and carrying what appeared to be a pipe bomb) or articulate some general public necessity for doing so (e.g., establishing security checkpoints at locations where terrorists are likely to plant bombs and where many lives can be lost).200 In addition, the detainor must attempt to ensure that the restraint is no more burdensome than is necessary under the circumstances.201 Any system that has a high rate of false positive detections, thus causing unreasonably large numbers of innocent people to be stopped, would likely fail this test. Also, any device that takes a great deal of time to make a detection, or that must be followed up with other techniques that unreasonably complicate and lengthen the investigation, would probably be considered deficient. Thus, while the use of an unobtrusive and prompt portal scanner may be reasonable, mandatory strip-searching probably would not.
c. Intentional Infliction of Emotional Distress
Intentional infliction of emotional distress (IIED) is a catchall, gap-filling tort. Relatively new by tort standards, IIED prohibits conduct that is extreme and outrageous and that causes others to suffer severe emotional distress.202 It is very difficult to prove. The conduct must be so bad that it is considered intolerable in a civilized community.203 The criteria for offensiveness that are used in privacy and battery actions also are relevant here. For all practical purposes, detection devices would not be deemed offensive unless they operated in an obviously arbitrary fashion or exposed subjects to known, serious hazards. Likewise, screening programs would not likely cross the line of decency unless they needlessly embarrassed or harassed those who were required to endure them. However, it should be noted that some courts use IIED to award recovery to injured parties who cannot make out the elements of any other tort. Conceivably, any of the acts mentioned above—from conducting an illegal search to publishing embarrassing images of the plaintiff—may give rise to an IIED claim. What makes this theory so attractive to many claimants is that they often do not need to prove any accompanying physical injury, just some physical manifestation of their distress (insomnia, irritability) or no physical consequence at all.204 Still, in light of the
good intentions of those attempting to thwart terrorist attacks, the prospects here do not look promising for an anxious detainee.
d. Trespass to Chattels/Conversion
The final two intentional torts to be considered—trespass to chattels and conversion—both consist of a wrongful interference with another person's personal property. The difference is that trespass to chattels involves rather minor acts of intermeddling or dispossession,205 while conversion requires an exercise of dominion and control that works a serious interference with the victim's property.206 Intermeddling usually causes damage to the property that reduces its value.207 Dispossession consists of the intentional withholding of the property from its rightful owner.208 Where the interference virtually renders the property a complete loss, the owner is entitled to recover an amount equal to the value of the item at the time it was converted.209 Detection programs may jeopardize personal property interests in two ways. First, the technology used may intermeddle with or damage the property being searched. For the most part, the devices under consideration—including both tracer elements and detection equipment—do not seem to pose a significant threat to personal property. However, nuclear magnetic resonance is a notable exception. The strong magnetic fields demanded by this technique may erase magnetic discs and tapes (like those used in computers), disturb ferromagnetic materials (like spray cans and hair dryers), and perhaps damage luggage.210 In other words, unless its deployment is legally privileged, this technology may pose property tort problems. Second, trespass to chattels may result if a search subject is denied access to her baggage for an unreasonable period of time. To satisfy this tort, however, the subject would have to show, in addition, either that the property was taken in defiance of or with an utter disregard for her possessory or ownership interests211 (an extremely unlikely scenario) or that the deprivation caused her some actual damage.212 Although thermal neutron analysis and dipoles suffer from the kind of high error rate that may require additional screening tactics and engender needless delay, it is unlikely that such dilatory episodes will prove economically injurious (except, for example, if an airline passenger were detained so long that she missed a discount flight and was forced to take a later flight at a higher fare).
e. Privileges and Defenses
Should a plaintiff assert one or more of these intentional tort causes of action, she is sure to be confronted by a few very potent defenses. For instance, if the plaintiff verbally consents to undergo a search, or if her actions express a willingness to do so (by putting her bags on an x-ray conveyor, walking through a detection portal, opening her luggage or computer case, etc.), the agency conducting the investigation is privileged to proceed.213 Unless coerced or deceived,214
the plaintiff accepts responsibility for all the normal consequences of the agreed-upon activity. She also may be held accountable for any risks disclosed to her prior to giving consent. This means that a consenting plaintiff could not complain about being stopped and temporarily detained, having her bags examined or, if fully informed of the relevant risks, being subject to any of the search or detection techniques reviewed in the committee's report. In addition to citing the plaintiff's consent, a defendant might attempt to justify a particular detection program by relying on the privileges of public or private necessity and defense of property and others. As explained in the constitutional tort section above, these defenses typically approve protective measures that are based on a reasonably perceived need for action and are implemented in a reasonable fashion. Although usually occasioned by imminent threats to safety or economic well-being,215 such privileges might also be invoked by socially conscious courts to combat the current perceived bombing threat.
5. Negligence
In certain circumstances, makers and users of detection equipment or taggants may be subject to liability for negligence if the product or conduct in question causes someone physical injury and/or emotional distress. "Negligence" is the failure to exercise reasonable care toward another.216 To state a negligence cause of action, a claimant must prove that (1) the defendant owed her a duty of care, (2) the defendant breached that duty, and (3) the breach was the factual and proximate cause of the plaintiff's injury. There are infinite ways for a party to be negligent. Accordingly, it is not possible to catalogue all the grounds for asserting such a theory in the context of explosives detection. A few of the more likely scenarios may be suggested, however. If the taggants or equipment are themselves defective, the makers (and, under unusual circumstances, the sellers) may be sued for the injuries they produce (this theory, which falls within the realm of products liability, is discussed in greater depth below). Those who design, implement, maintain, operate, or supervise detection protocols may be sued as well if the procedures used cause harm to others. Finally, if the detection tactics fail to prevent a bomber from blowing up a target and injuring innocent bystanders, the parties responsible for the program may be subject to negligence liability. Examples of proper and improper screening practices have been alluded to above.217
Whatever type of negligence is alleged, the plaintiff first must prove that the named defendant(s) owed her a duty of care. Duty is perhaps the most important and enigmatic element of a negligence case. A finding of duty is nothing more than a legal conclusion that two parties stand in such a relationship that one is required to exercise reasonable care toward the other.218 Tort duties are not automatic and immutable, but arise episodically depending on the facts and social policies presented in each case.
The nature of one's relationship with another often will determine the scope
of her legal responsibilities. For example, common carriers, like airlines, typically hold extremely onerous duties of care.219 The recent case of Klopp v. Wackenhut Corp.220 is illustrative. In Klopp, an airline was sued by a woman who tripped over the stanchion of a metal detection portal in an airport. She claimed that the airline was negligent in positioning the portal in a way that could cause injury to a distracted passenger (the woman was busy grabbing her personal belongings when she tripped). The court held that the airline owed the woman a duty to set up, operate, and maintain the portal in a reasonably safe condition.221 Property owners and lessors, too, bear special responsibilities to those who come on their premises, depending on whether the latter are trespassers, visitors, or (present or prospective) paying customers.222 On the other hand, some parties—like governments and their agents—are protected by immunities (discussed above in the constitutional tort section) that limit their duties to the public. For example, police officers generally are not civilly obligated to come to the assistance of those in danger unless they specifically undertake to do so.223
Where no such relationship exists, the determination of duty will turn on the foreseeability of harm flowing from the questioned conduct and the burden that a finding of legal responsibility will place on the defendant, the court system, and society in general.224 Typically, the more beneficial or desirable the conduct, the greater the likelihood of harm must be before a court will hold the actor negligent.225 In the explosives detection context, these factors may weigh against plaintiffs injured in criminal bombing incidents. Given the high social utility of detection markers, equipment, and programs, and the relative infrequency of major bombing attacks, courts today may be reluctant to wield the financial sanction of tort law against those who are making an effort to help stop such terrorist events. In fact, as discussed further within, many courts hold that intervening criminal acts of this sort cut off the responsibilities of parties who have tried and failed to prevent them. Nevertheless, should the bombing risk increase, and the economic and social costs of detection systems substantially decrease, the courts may shift the assignment of responsibility somewhat on to bomb detection businesses.
Even if a duty is found, the plaintiff still must prove that the defendant's conduct fell below the applicable standard of care and that this breach was the cause of her injuries. Courts typically will weigh several factors to determine whether the defendant's conduct "measured up" to the standard. On the one hand, a court will ask whether there existed safer ways of acting, and what the tangible and intangible costs of those alternatives would be.226 It also will assess the personal and social value of the defendant's product or service and the impact that a judgment of liability would have upon that enterprise.227 On the other hand, the court will analyze both the likelihood and the magnitude of the harm that the offending conduct would inflict.228 Activities that cannot be made substantially safer at low cost are reasonable; those that can are negligent and thus within the reach of tort law. To say that conduct is negligent, however, is not
necessarily to say that the actor is liable. Liability will not culminate unless and until it appears that the investigative failure was a factual and proximate cause of the resulting injuries.
6. Ultrahazardous or Abnormally Dangerous Activities
The analysis thus far has addressed the potential legal problems with various explosives detection programs. In the two subsections below, the focus shifts to the explosive and taggant products themselves; the discussion considers whether those who make, store, transport, or use detection tracer-marked explosives and related materials may be held strictly liable for engaging in ultrahazardous or abnormally dangerous activities. The succeeding "Product Liability" section explores the liability issues that may face manufacturers, distributors, and sellers of tagged explosives under a number of product liability theories of recovery.
a. Ultrahazardous Activities
An ultrahazardous activity is one that poses a high degree of risk that cannot be reduced by the exercise of reasonable care.229 Those engaged in these activities generally are held strictly liable even though they were not negligent,230 they conducted the enterprise in an appropriate location,231 their activities were only remotely connected to any alleged injuries,232 and such injuries were caused primarily by the contributory negligence of the victims.233 Liability in such cases is normally predicated on one of three grounds: the activity itself is so intrinsically dangerous (e.g., making, transporting, or using hazardous substances) that it is likely to cause harm to others; a dangerous (and nondefective) product that is legally marketed and sold by the enterprise is misused for an illegal purpose (e.g., legal firearms used to commit crimes); or the enterprise stores materials (e.g., explosives) that are stolen by criminals and used by them to injure others. Although the intrinsic danger aspect of this tort is most frequently applied to the activity of commercial blasting, it has been extended to other enterprises as well. For example, some courts have held that the storage of dynamite is an ultrahazardous activity.234 A few other courts have imposed strict liability for storing large quantities of gasoline in residential communities.235 Regarding the second theory—that dangerous items are legally obtained but illegally used—some claimants have attempted to extend the ultrahazardous activity doctrine to the marketing and sale of guns, but these attempts have been almost universally rebuffed by the courts.236 The rationale typically offered is that injuries caused by guns are not attributable to their manufacturers and sellers, but to the criminals who use them for illegal purposes.237 And while at least one court has recognized the third type of ultrahazardous activity claim (i.e., for injuries ensuing from the theft of stored dangerous materials238), most jurisdictions categorically reject such claims,
finding such tragedies to be the exclusive responsibility of the criminals who instigated them.239
Applied to the explosives context, there is little doubt that the manufacture, transportation, and use of such devices may qualify as ultrahazardous. The question is whether the addition of detection tracer materials would affect the potential for legal liability under this theory. The short answer is that it may, in at least a couple of ways. First, the detection markers themselves may present a great enough level of danger to be classified ultrahazardous. For instance, undiluted cobalt-60, which is considered one of the most promising gamma-emitting markers, is radioactive. Likewise, the vapor emitter DMNB, which has been approved by ICAO, is a volatile substance that requires proper ventilation and appropriate equipment. And vanadium, a possible thermal neutron marker, is toxic enough to require doping levels on the order of 10 percent. Thus, if these materials are received and handled by explosives manufacturing personnel in concentrated form, as seems likely, they are likely to make the enterprise of making explosives at least marginally more dangerous than is currently the case. (Injuries sustained by employees of the enterprise during the course of their employment would most likely be covered under an applicable state worker's compensation statute. Such statutes typically preclude employees from bringing tort actions against their employers.) Second, when combined with explosive materials, the detection tracers may, at least theoretically, enhance the hazards inherent in the end product. This fear is clearly warranted for dipoles and diodes. These sharp, brittle wires are known to increase the sensitivity of explosives. Conversely, chemical or neutron-based markers, like DMNB and cobalt-60, are likely to be employed at such diluted concentrations that they should have no appreciable effect on safety. So, depending on the marker used, there may be a slightly greater likelihood that the activities of manufacturing, shipping, and using detection tracers and tagged explosive materials will be labeled ultrahazardous and thus subject to strict liability. Even so, chances are good that such enterprises will incur no additional responsibility for the theft or criminal misuse of these products.
b. Abnormally Dangerous Activities
Activities that are not deemed ultrahazardous still may be found to be abnormally dangerous. An abnormally dangerous activity is one that poses an inappropriately high degree of risk for the community in which it is conducted. In determining whether an activity is abnormally dangerous, courts will weigh several considerations, including the probability and magnitude of the loss caused by the activity, the ability to reduce the activity's dangerous characteristic through the exercise of reasonable care, whether the activity is a matter of common usage and is appropriate for the location, and the social utility attached to the activity by the surrounding community.240 The feature that distinguishes this strict liability concept from the concept of ultrahazardousness is the unusual or uncommon
quality of the activity in question. For example, mine blasting, although hazardous, may not be considered abnormally dangerous if it is performed in an isolated area where other mining operations are prevalent. Thus, it typically is more difficult to hold an enterprise strictly liable under this theory of recovery. This is not to say that the making, storage, transportation, or use of explosives (detection marked or otherwise) would escape the reach of this cause of action. Indeed, explosives plants that receive, store, and handle potentially dangerous and rare detection marker materials like cobalt-60, DMNB, or vanadium are likely to be even more unusual than those that do not. The added flexibility of this analysis just makes it harder to predict the enterprise's liability exposure without first examining the entire context in which it is carried on. Nevertheless, one thing can be said with some degree of certainty: courts will be reluctant to impose liability simply because a criminal illegally obtains the enterprise's dangerous product and uses it to cause others personal injuries. Regarding the storage and sale of handguns and explosives in particular, the overwhelming weight of authority holds either that these are not abnormally dangerous activities,241 or that intervening criminal misconduct cuts off the responsibility of such enterprises.242 The same should hold true for explosive materials that contain detection markers.
7. Products Liability
Products liability is a species of tort law that seeks to redress physical and economic injuries caused by defective products. It is not, however, a monolithic doctrine. Rather, products liability is really an amalgam of several different theories of recovery. These theories can be divided into two general groups: "bad product" theories that condemn the product itself, and "bad representation" theories that condemn the defendant for making false and misleading statements about the product. Each of these theoretical types is considered below.
a. Bad Product Theories
Bad product theories consist of negligence, breach of implied warranty of merchantability, and strict liability in tort. Of these three theories, strict products liability is the most frequently used and the easiest to sustain. Thus, after a cursory overview of negligence and implied warranty, the analysis concentrates on the theory of strict products liability.
i. Negligence
The theory of negligence is discussed above in relation to the implementation of detection protocols. The elements of this cause of action are the same in the products liability context. Specifically, the plaintiff must prove that the defendant owed her a duty of care, that the defendant breached this duty, and that the
breach was the factual and proximate cause of her injury.243 In products liability cases, the defendant-manufacturer (or seller) is held to the standard of an expert in the field, which means that she must keep reasonably abreast of the latest scientific and technologic developments in the same and related enterprises.244 Typically, if the financial burden of changing a product is less than the accident costs produced by that product, the defendant-manufacturer will be found negligent for failing to make such reasonable safety alterations.245 By contrast, retailers and other product sellers are obligated only to conduct a reasonable inspection of the product (which does not include opening sealed containers)246 and to warn of known or knowable dangers.247 As is discussed at greater length below, the liability of either the maker or the seller of the product usually will be superseded if the item is unforeseeably misused by a criminal for an illegal purpose. Besides pointing the finger of blame at criminal intervenors, defendants also can defend themselves by proving the plaintiff's contributory negligence248 or assumption of risk,249 or by presenting evidence of their own reasonable care.250
How is the theory of negligence likely to apply in the detection tracer-tagged explosives scenario? It should be noted that anyone who ships or stores tagged explosives might be found negligent for failing to do so in a reasonable manner. However, liability in such cases would be founded not on negligence in the marketing of the product, but on inadequacies in the general activities of transporting and securing such goods. These are not product liability arguments, but arguments premised on the negligent provision of certain services. The most likely forms of product-based negligence in this context are that the manufacturers and/or sellers (1) failed to add detection markers to the products, thus facilitating their criminal misuse; (2) distributed their products with detection markers that pose unreasonable dangers; or (3) tagged their products with markers that fail to work properly. Given the technical, safety, and cost problems (which are detailed in Chapter 2 of the committee's report) associated with most detection markers, the decision not to incorporate such markers will be difficult to second-guess in a negligence action. However, as these technologies improve, and the burden of their implementation diminishes, reasonableness may require that they be utilized in the future. On the other hand, if an explosives maker elects, or is forced, to add detection markers to her product, such a choice also seems hard to criticize. Except for diodes and dipoles, which could substantially enhance the instability of the explosive material, none of the markers under consideration are likely to significantly affect the safety of the compound. This fact, when coupled with the maker's benevolent purpose of assisting law enforcement agencies in catching bombers, may enhance the apparent reasonableness of the decision to tag the product. Nevertheless, difficulties arise if the tag cannot be detected, and armed criminals are thus granted access to places where they proceed to wreak havoc. Such a result is possible for certain markers—like high-Z x-ray absorption edge markers and thermal neutron markers—which often are difficult to discern above routine background clutter. Use of these taggants could be assailed as
unreasonable if they induce law enforcement or security personnel to forego other options for screening traffic in high-risk areas. However, to prevail on this theory, the plaintiff still would have to show that the tag manufacturer's negligence was the proximate cause of her injuries.
ii. Implied Warranty of Merchantability
The implied warranty of merchantability is a feature of the Uniform Commercial Code (UCC),251 which has been adopted in nearly every state.252 Under section 2-314 of the UCC, a product is considered unmerchantable if, among other things, it is not fit for its ordinary use.253 Any merchant who sells an unmerchantable product that proximately causes injury to another may be held liable for her physical or economic damages.254 With few exceptions,255 an unmerchantable product is also likely to be found defective under the theory of strict products liability, and so little discussion is devoted to this concept here. It is enough to note that if the product contains an ingredient (i.e., the taggant) that makes it unreasonably dangerous, or if it fails to work as expected (i.e., the tag cannot be detected, or for ammonium nitrate, the tags adversely affect its performance as a fertilizer), it usually will be considered unfit and its creator or seller will be subject to liability. The main difference between this theory and its strict tort counterpart is that the warranty of merchantability can be defeated by a number of specific defenses contained in the UCC. For example, the UCC places certain restrictions on who can sue for the breach of such a warranty256 and on what they can recover.257 It also permits parties to disclaim258 or limit259 their responsibility for unmerchantable goods. Consequently, most plaintiffs rely on the more liberal doctrine of strict products liability and will assert the implied warranty theory, if at all, only as a fallback tactic.
iii. Strict Products Liability
The concept of strict products liability is set forth in section 402A of the Restatement (Second) of Torts.260 (A Restatement (Third) of Torts was recently passed by the American Law Institute but has not been adopted as the law in any state. Although it offers some innovations, the Third Restatement does not make major changes to the common law in most significant sections.) Under section 402A, a merchant in the business of selling a particular product will be held strictly liable if she sells the product in a defective condition unreasonably dangerous to the user or consumer, and the defect causes the user or consumer to sustain physical injuries.261 This is true even if the defendant exercises all possible care in the construction or distribution of the product. Distilled to its essence, strict products liability contains four critical elements of proof: (1) that the defendant is a merchant who sold a product, (2) that the product was defective, (3) that the defect caused the plaintiff's injuries (and that the defendant possessed
a duty to prevent this from happening, and (4) that the plaintiff sustained compensable damages.262 Because the first three of these elements present a host of complex legal issues, each is discussed in turn.
(A) Parties Subject to Liability
Almost anyone who has a business interest in or connection to a product may be held liable if it turns out to be defective. Although section 402A originally limited the scope of strict products liability to merchants who sold the offending product (and who were engaged in the business of selling products of that kind),263 these modest parameters have since been greatly expanded. Now, component part makers,264 wholesalers and distributors,265 retailers,266 used product sellers,267 lessors,268 bailors,269 franchisors,270 successor corporations,271 electric companies,272 trademark licensers,273 real estate developers,274 and building contractors275 (among others) may be found strictly liable for playing some role in the dissemination of dangerous products. The broad net cast by this doctrine will likely fall on many of the potential players in the production and distribution of detection-marked explosive products. Indeed, any party that makes or sells explosives, or products used to construct or detonate explosive materials, is a potential defendant. This includes precursor chemical makers, detection taggant manufacturers, detection equipment makers, manufacturers of explosives, makers of products that might be used to make an explosive (e.g., fertilizer or fuel oil manufacturers), importers of such products, distributors, retailers, transporters, users (like construction or mining companies), and accessory product makers and sellers (e.g., manufacturers of blasting caps, detonation cords, and fuses).
(B) Defectiveness
Any explosive material, ingredient of an explosive material (like a detection marker), or device used to detect or detonate such material, is a "product" that may be actionable under the theory of strict products liability. As noted above, a product is susceptible to legal liability if it is sold in a defective condition that makes it unreasonably dangerous to users, consumers, or bystanders. To prove a product defective, a plaintiff need not demonstrate the manufacturer's negligence; she must only show that the product itself fails some community standard of safety.276 An explosive product may be defective and unreasonably dangerous in its construction, design, or marketing.277
(1) Manufacturing Defects
Manufacturing defects are the easiest to recognize and analyze. A construction defect exists when the product is manufactured and sold in a condition that deviates either from the manufacturer's own specifications for the product,278 or
from the consumer's expectations about the product's safety.279 Typically, this means that the product contains some abnormality or impurity, like a machine missing a bolt or a sandwich containing a piece of glass. In the explosives context, the use of detection taggants may present two types of construction problems. If the process of adding detection tracers were to cause the explosive to become contaminated by some foreign material (say, dust), the resulting, unintended mixture would contain a construction defect. While an increase in the number of product ingredients and manufacturing processes seems naturally to raise the risk of adulteration, the committee has received no information confirming this assumption. Even where an explosive itself is properly constructed, its taggants may find their way into other products, thus producing construction flaws in these goods. For example, quartz ore mined with high explosives is processed into silica powder, which in turn is used to make delicate silicon wafers for the semiconductor industry. If taggants incorporated into the explosive become comingled with the silica powder, they may lower the purity of the resulting semiconductors. Any resultant failure of such devices may invite construction defect lawsuits against members of the semiconductor industry, who likewise will attempt to pass the liability off onto explosive makers, taggant makers, or both.
(2) Design Defects
A design defect consists of some failing in the conception of the product. In other words, the specifications for the product, rather than the manner of its construction, are considered unreasonably dangerous.280 If a manufacturer either adds or fails to add detection taggants to its products, it makes a conscious design choice that affects the safety of these goods. This choice may be second-guessed in a design defect claim. To sustain such a claim, the plaintiff usually must establish either that the danger posed by the product design was beyond the contemplation of the ordinary consumer,281 or that there existed a safer, alternative design that was both economically and technologically feasible.282 This means that, at the time the product was sold, there existed some scientifically available alternative technology that, if implemented, would have reduced the subject danger of the product without creating new, more serious hazards, and without decreasing the functionality, practicality, or desirability of the product or drastically increasing its price. In short, a product design will be actionable under this approach if its risks exceed its social utility.283
There are several possible bases for asserting design defect liability against explosives manufacturers faced with the choice of incorporating detection taggants into their products. If an explosives maker elects not to use detection taggants, a person injured by the untagged explosive may argue that the product was defectively designed because it lacked a device (the taggant) that would have made the explosive safer. The argument would go like this: since detection
taggants significantly facilitate the discovery of explosives before they are detonated, explosives without such tags are defectively designed insofar as they lack an ingredient that could have prevented otherwise avoidable bombing incidents. An analogous contention was endorsed in the case of Landry v. City of Detroit.284 In Landry, two witnesses waiting in a courtroom were slashed by a knife-wielding attacker. The witnesses sued the city and its building authority on a nuisance theory, arguing that the courthouse should have had a metal detector. The court agreed in theory. Reversing the grant of summary judgment, the court found that there was sufficient evidence for a jury to conclude that the courthouse, without the detector, presented a dangerous condition.285 This thinking may carry over to the explosives context, where the failure to implement detection tracer technology may make such products appear unreasonably dangerous. However, given the feasibility questions that still surround most detection tags, plaintiffs assailing the design characteristics of untagged explosives may face an uphill battle.
The prospects for suing makers of tagged explosives are not much, if any, better. If one could prove that taggants make explosive materials unstable, thus enhancing the risk and potential magnitude of accidental or premeditated explosions, the explosive product might be deemed unreasonably dangerous. This probably would be easy enough for hard, sharp tags like diodes and dipoles, which are known to heighten the volatility of explosives. Radioactive coincident gamma tags also might be susceptible to attack because of current misconceptions about and fear of radiation, although expert testimony and good lawyering should go a long way toward dispelling such concerns. Other detection taggant products appear to pose little or no extra risk and so are not likely candidates for design defect liability. When all is said and done, the critical question for all these taggant concepts will be whether the benefits they provide to law enforcement (based on detection accuracy) exceed the new dangers they create.
Even if an explosive product (tagged or untagged) clears these hurdles, it may yet be found actionable under a couple of other design defect theories. First, if the taggants themselves are safe, but they prove ineffective in directing police to hidden bombs, the tagged explosive may be considered defectively designed, especially if other available tracer elements perform more efficaciously. There is some precedent to support this conclusion. In a few cases, products that were designed specifically to aid law enforcement or to protect members of the public from criminal attack were found defective after they failed to work as planned. For example, in Hollenbeck v. Selectone Corp.,286 the maker of a mobile pager who represented that the product was suitable for use by police agencies was found liable to an officer who was severely injured by criminal attackers after the pager failed to transmit his call for backup assistance. Similarly, in Klages v. General Ordnance Equipment Corp.,287 a mace manufacturer who guaranteed that the product would stop an assailant in his tracks was held liable to a motel clerk who was shot in the head when the mace failed to deter a gun-toting
attacker. Nevertheless, these decisions focus more on the untruth of the makers' claims than on the defectiveness of the subject products. Other courts have rejected attacks against failed detection and protection equipment. For instance, the court in Hampshire v. Ford Motor Co.288 dismissed a lawsuit challenging an ignition locking system that was circumvented by a car thief. Likewise, in Aronson's Men's Stores, Inc. v. Potter Electric Signal Co.,289 the court held that a burglar alarm that failed to sound upon the entry of a thief was not unreasonably dangerous. Further, the court in Elsroth v. Johnson & Johnson290 ruled that aspirin equipped with tamper-resistant packaging was not defective simply because the protective seal could be defeated by a determined criminal. And in Linegar v. Armour of America, Inc.,291 the court opined that a bulletproof vest that did not provide protection under the arms of its wearer was not defective and unreasonably dangerous as a matter of law. In short, some courts seem unwilling to condemn products simply because they are not always successful in thwarting the depraved plans of motivated criminals. This uncommon leniency is based not only on the products' lack of any design defects, but also on the overpowering causality of the criminals who steal, alter, elude, or destroy them.
The final design defect theory is infrequently used but, because of its potency, deserves at least a brief mention. In a few instances, courts have found products defective per se, meaning that they are considered socially unacceptable even though they contain no flaws and could not be made any safer.292 Both ''Saturday Night Special" handguns293 and asbestos294 have been so regarded. In such cases, the determination of liability is premised on the belief that the product's intrinsic dangers exceed whatever value that good holds for society. Thus, a bomb blast victim might argue that, given the obvious hazards of explosives (tagged or untagged) and their demonstrated susceptibility to criminal misuse, such products should be deemed defective per se, and their makers should be held financially accountable for the losses they produce. Although the per se theory of defectiveness has not yet been applied to explosives, most jurisdictions have refused to condemn other unflawed, legal products, like firearms, which typically do not cause harm unless subject to criminal misuse.295 If and when the occasion arises, explosives could receive the same kind of deference. Because explosives are essential to a wide variety of important industries—like mining, construction, and agriculture—courts may be unwilling to turn these products into potential liability problem areas.
(3) Marketing Defects
If a product is properly designed and constructed, it still may be found defective if it is not accompanied by certain forms of necessary information. A marketing defect exists when the manufacturer or seller fails to provide either (1) adequate instructions for using the product or (2) adequate warnings about the product's nonobvious dangers.296 There are two ways a defendant may incur
liability under this theory: by failing to provide any information where she had a duty to do so297 and, where some information is given, by failing to provide the right information or failing to communicate it in an effective manner.298
Generally, a manufacturer has a duty to warn against both the foreseeable risks presented by normal use of the product, and any hazards that may follow from the product's foreseeable misuse.299 Regarding the first duty, an explosives manufacturer who chooses to incorporate detection taggants into its product would be obligated to provide information to distributors, retailers, and perhaps even users concerning the new risks posed by the tags (possible increased instability) and how those risks might be minimized during handling, storage, and use. As for the second duty (i.e., to warn of foreseeable misuses), an explosives maker might, under extraordinary circumstances, be expected to notify others (especially retailers and legal buyers) that its product may be stolen and misused for a criminal purpose.300 However, most courts have held that handgun manufacturers owe no duty to warn about the dangers of illegal handgun use because such dangers are open and obvious.301 In light of the World Trade Center and Oklahoma City bombings, the same obvious-danger reasoning would seem to preclude claims against explosive product makers for failing to warn of the criminal misuse of their goods. Nevertheless, if a situation arose where the risk of an accidental or criminally instigated explosion were highly foreseeable to the manufacturer, and not obvious to the user or consumer, the maker might be expected to add warnings highlighting these dangers (if the additional information could be included at reasonably low cost, which is usually not a problem).
Voluntarily placing warnings or instructions on a product does not necessarily get the manufacturer out of the liability woods, however. Any information provided still must be adequate. The notion of "adequacy" contains both procedural and substantive components. Procedurally, the information must be understandable to the average consumer and must be presented in a way that is likely to attract the user's attention.302 Substantively, a warning must inform the user of both the probability and the potential magnitude of the specific risks posed by the product.303 This means that an explosives maker that wishes to avoid liability must provide clear, detailed information about the precise dangers posed by its tagged products. It also means that the product maker probably should warn about the risk of criminal theft and misuse, delineating the most common ways in which the product may be pilfered and illegally deployed, and perhaps suggesting tactics for preventing these abuses. It may even require that the product maker communicate this information through a company representative, package insert, or product label, and that it convey the warnings and instructions to as many downstream recipients of the product as is economically and practicably feasible.
(4) Proof of Defectiveness
To prove any of these defect theories, the plaintiff must present evidence
supporting the allegations of her complaint. Often this can be accomplished by offering expert testimony concerning the deficiencies of the subject product and the feasibility of alternative designs or marketing strategies. But there are other ways of meeting this evidentiary burden. Most important for the present discussion, design changes, like adding detection taggants to explosives, may be probative of the original product's unfitness. When a manufacturer makes alterations in its product, the plaintiff often will argue that the changes demonstrate the defectiveness of the manufacturer's earlier product design. Although the subsequent remedial measure may not be introduced to prove the manufacturer's negligence, it may be used to show the feasibility of an alternative safer design.304 Thus, should an explosives maker elect to add taggants to its product, it risks condemning its earlier, untagged products as defective. Even if the manufacturer is directed by the government to make the change, and reluctantly complies, the fact of its compliance will not necessarily free it from liability. The plaintiff may still argue that the government requirement provides merely a minimum threshold of safety and is not indicative of the product's nondefectiveness.305 On the other hand, if the government requires explosives manufacturers to add markers to their products, and they fail to meet this requirement, the fact of their noncompliance may provide conclusive evidence that their products are defective.306 So, whether voluntarily effected or not, tagging programs may pose a serious evidentiary concern to explosives sellers who must defend their products in court.
(5) Component Part Makers, Distributors, and Retailers
While the foregoing discussion centers primarily on the liability of explosives makers, the defect theories addressed above also may be asserted against manufacturers of explosives components—like ammonium nitrate or detection tags—and against more remote distributors and retail sellers of explosive products. Like explosives manufacturers, these parties are generally subject to the same product liability principles discussed above. However, because of their place within the chain of distribution, the analysis of their potential liabilities may present a few additional wrinkles.
For example, a taggant manufacturer who makes a nondefective tag typically would not be responsible for design defects in a host explosive product unless that manufacturer assists in developing the explosive's specifications307 or if the end product design (with the taggant) would be considered obviously dangerous or inappropriate to an expert in her field.308 In addition, a taggant maker who provides full warnings to a purchasing explosives manufacturer may owe a duty to communicate that information directly to the latter's employees309 but probably would not have an obligation to ensure that subsequent buyers, sellers, or users of the explosive receive its warnings.310 Although ammonium nitrate manufacturers are subject to design defect liability, their responsibility is determined by a slightly different risk-benefit calculus. Unlike products such as dynamite or
C-4, ammonium nitrate, especially the dense agricultural form, is not in itself explosive. It becomes explosive, and thus dangerous, only if it is mixed with fuel oil (in some cases it must also first be ground up) and combined with a detonator. Thus, this product is even less likely to fail a risk-utility analysis or be deemed defective per se, unless its usage by terrorists escalates to extraordinary levels. The relatively lower risk posed by ammonium nitrate also may reduce, though not eliminate, the informational obligations of its makers.
The liability picture of distributors and sellers is considerably different. Recall that under section 402A, anyone who sells a defective product may be held liable regardless of the reasonableness of her conduct. Accordingly, a retail seller of explosives may incur liability if she sells a device that turns out to have a hidden construction flaw, an esoteric design defect, or an inadequate warning, even though she did not create the product or its problems and could not have discovered or avoided them through the exercise of reasonable care.311 While some jurisdictions have alleviated this burden by statute,312 intermediaries in the chain of distribution remain subject to rather onerous legal responsibilities for the products they place on the market.
(C) Duty and Proximate Causation
Of course, liability will not be imposed against any of these potential defendants unless the plaintiff can also demonstrate that these parties owed her a duty of protection, or that the defects in their products caused her harm.313 The concept of foreseeability is critical to both of these determinations. Generally speaking, a product seller is duty-bound to prevent only those injuries arising from foreseeable uses and misuses of her product.314 Similarly, a defect is a proximate cause of the plaintiff's harm only if the injurious occurrence is reasonably foreseeable and the defect is a substantial factor in bringing it about.315 Sometimes, the intervening acts of other human beings may cut off the product seller's responsibility (both normative and causal). At other times, however, the seller's duty will remain intact if the intervening acts are relatively foreseeable. These are called intervening, superseding causes.316 In the explosives context, the acts of distributors who fail to prevent criminal theft of explosives, or retailers who sell explosives to criminals, or terrorists who intentionally misuse explosives to inflict harm upon others, may be deemed intervening, superseding causes that relieve explosives makers of liability. For the intermediaries in this distributive scheme, such intervening criminal misconduct alone may be enough to keep them off the hook. In the final analysis, the question becomes one of setting social policy. So far, courts have been surprisingly uniform in holding that sellers of legal products should not be obligated to prevent criminals from misusing their products as instruments of destruction and terror.317 However, if the risk of such bombing events becomes great, and developments in detection technology make efforts at curbing such disasters effective and economical, liability could ensue.
b. Bad Representation Theories
A plaintiff unable to sustain one of these "bad product" theories is not necessarily without a remedy. If the circumstances warrant, she also may assert one or more "bad representation" theories of recovery. There are two types of bad representation theories: tort-based misrepresentations and UCC-based warranties
A "misrepresentation" is an untrue, material statement about a product, or the failure to disclose a material fact about a product, that induces the victim's justifiable reliance.318 Where the misrepresentation is made intentionally or with a conscious ignorance of the truth, the action is one of fraud.319 Where the misstatement or nondisclosure is carelessly made, negligent misrepresentation is the appropriate theory.320 And where the untruth is innocently made, the doctrine of strict liability misrepresentation, as defined by section 402B of the Restatement (Second) of Torts, provides the grounds for relief.321
The relevant UCC warranties are similar to this latter form of misrepresentation. Requiring no proof of fault on the speaker's part, the theory of express warranty sanctions false affirmations of fact, promises, descriptions, samples, or models that are part of the basis of the seller's bargain with the injured consumer.322 Also a fault-free theory, the implied warranty of fitness for a particular purpose holds liable sellers who induce the justifiable reliance of buyers by incorrectly affirming the suitability of a product for some specific, extraordinary use.323 Like the implied warranty of merchantability, express and implied warranties of fitness are subject to a number of defenses that may make them more difficult to sustain.324
Manufacturers and distributors of explosives do not run the risk of incurring any of these representational liabilities simply by introducing detection tracers into their products or by placing their tagged products on the market. Nor will taggant makers automatically be held liable if their tracers fail to work perfectly. To be responsible, they must do something, or fail to so something, that gives the buyer (or possibly others) a false impression of the product's quality or safety. For example, if a detection taggant maker failed to disclose one of its product's material safety risks—like a diode's propensity to destabilize explosives—or if it exaggerated the product's capacity to discover explosive materials—perhaps by calling it "foolproof" or "100% effective"—that taggant maker would be susceptible to liability under either misrepresentation or warranty theories. Support for the latter proposition is provided by the Hollenbeck and Klages cases, mentioned above, wherein the makers of a mobile pager and mace, respectively, were required to pay the price for overpromoting their products. Moreover, if a manufacturer of detection equipment were to market its products to law enforcement, guaranteeing that they will successfully identify certain types of tags or explosives under specific circumstances, it could be sued for breach of the warranty of fitness if the product fails to live up to its assurance. To avoid these legal pitfalls, such enterprises should fully disclose all relevant product hazards and weaknesses,
and should accurately and perhaps modestly portray their products in their advertisements, marketing presentations, promotional literature, and product inserts and labels.
C. Identifying Bombers, Postblast
If, as the foregoing discussion suggests, the implementation of detection tracer programs is likely to present a plethora of possible civil liability issues, the adoption and use of identification taggant technologies appear less certain to carry legal baggage. For example, unlike detection systems, which frequently provide the sole basis for, and primary means of, searching persons and property, identification tracers merely provide one piece of circumstantial evidence that, when used in conjunction with other pre-and postblast evidentiary leads, may eventually assist in the apprehension of a suspect.325 Although an unclear identification tag, or the cross-contamination of several identification tags, may point law enforcement in the wrong direction (perhaps ending in the arrest of an innocent person), these technological deficiencies do not directly cause an invasion of the victim's interests. Rather, any such intrusion is more immediately attributable to the mistaken judgments or careless actions of the law enforcement officials who are expected to judiciously employ this technology like any other investigatory instrument at their disposal. Given this remote causality, it is unlikely that the mere deployment of identification tracers, without some further abuse or impropriety, would give rise to an unconstitutional search or seizure, or would constitute an invasion of privacy. Likewise, because identification taggants do not directly disseminate false information about others (at worst, they may falsely indicate the presence of a particular type of explosive, or may falsely identify a particular manufacturer, whose records may wrongly lead to a particular retailer, who may have sold an explosive to a person who the police incorrectly believe planted the bomb), they probably would not provide sufficient basis for a defamation claim. Finally, certain intentional tort theories—like battery, false imprisonment, and IIED—would probably apply as normal since identification taggants do not contact others in any harmful or offensive manner (unless, perhaps, the taggants were introduced into the food supply and were shown to be dangerous if ingested by human beings), do not directly cause others to be confined (although, if misused by reckless law enforcement officers, they might help to place innocent parties under suspicion), and are not likely to be considered extreme or outrageous weapons in the war against violent crime.
This is not to imply that identification tracer technologies are likely to be immune from serious legal challenges. It is only meant to point out that, because identification taggants are generally less complicated than detection marker programs (involving fewer stages of implementation and fewer trained persons making important discretionary judgments) and because they operate less directly upon those they are likely to offend, identification systems may be subject to a
smaller universe of possible legal claims. Within this more limited group of potentially viable theories of recovery, the most likely candidates are trespass to land or nuisance, trespass to chattels and conversion, negligence, strict liability for conducting an ultrahazardous or abnormally dangerous activity, and products liability. The remainder of this section is devoted to these theories of recovery. Where the relevant legal principles already have been explained—as for trespass to chattels and conversion, negligence, ultrahazardous or abnormally dangerous activities, and products liability—they are not discussed again here. Rather, the principles are applied directly to the identification technologies under consideration. Also, in certain circumstances, the analysis of some product liability theories that pertain to detection markers is virtually identical to the analysis for identification taggants. These similarities are noted where relevant, but no further discussion is offered. Instead, the analysis focuses on issues, arguments, or theories that are unique to the relevant identification technologies.
1. Trespass to Land or Nuisance
It is conceivable that identification taggants, especially ceramic, plastic, or metallic particle types that last for indefinite periods of time, may get into places where they do not belong and where others do not want them. Should this occur, the taggant user (typically, the party detonating the host explosive device or spreading the tagged fertilizer) theoretically may be held liable for trespass to land.326 Trespass to land is the intentional, unconsented invasion of, or intrusion upon, the real property of another.327 For purposes of this tort, real property includes not only the surface of the premises, but the immediate reaches of the air space above it328 and a reasonable depth of the soil below it.329 A trespassory intrusion may be tangible or intangible. Tangible intrusions occur when the defendant (or a material force she sets in motion and controls) invades the physical boundaries of the plaintiff's property without her permission.330 Intangible intrusions, which are not recognized in many jurisdictions,331 usually are caused by invisible particulate forces, like factory smoke, which substantially affect the plaintiff's property by leaving discernible accumulations in readily detectable places.332 Although tangible invasions are actionable without proof of actual damages,333 intangible trespasses are redressable only if they cause the plaintiff to suffer some quantifiable loss.334
There are basically three ways in which identification tags can become involved in trespassory invasions. When incorporated into explosives, such tags may be thrown onto the property of others during a blast. In this scenario, both the initial intrusion and the subsequent malingering of the tag may be considered tortious. In addition, tags that settle on the ground may be blown onto nearby tracts, and tags that become imbedded in mined ores may be carried from the blasting site to other locations. Finally, when introduced into farm products like ammonium nitrate, the tags may consummate a trespass by seeping down to the
water table and flowing beneath the property of neighboring landowners. Of course, some types of identification taggants present greater risks of trespass than others. For example, isotopic tags, which are merely heavier versions of the atoms they replace, are not toxic and do not add anything to the explosive or farm product that is not already there. Thus, their migration to adjoining properties is likely to be met with less resistance. Biological and rare-earth compounds, though not intrinsic to explosives or ammonium nitrate, are also naturally occurring, nontoxic, and invisible to the naked eye, and so are likely to be less objectionable. However, other taggants, like those made of ceramic, plastic, and/or metallic particles, are likely to be looked upon with greater suspicion. Besides being visible (and perhaps unsightly to some), these materials may pose unknown health or safety problems and may survive and accumulate for an indefinite length of time. Thus, their presence on (or underneath) adjacent properties is more likely to be viewed as trespassory.
Nuisance is similar to trespass to land, although it is generally more difficult to prove. While trespass to land protects one's possessory or ownership interests in property, nuisance safeguards the holder's use and enjoyment of her land.335 To make out a nuisance theory, the plaintiff must establish that she suffered an intentional, unreasonable interference with her property and that the interference caused her substantial harm.336 Interferences are unreasonable if the risks posed by the defendant's activity exceed its social utility337 or, even where the utility of the activity surpasses its risks, if the defendant could compensate the plaintiff without jeopardizing the former's enterprise.338 The theory of nuisance would seem to apply to identification tags only in certain very unusual circumstances. For example, if the tags prohibited or substantially inhibited the plaintiff's use of her property—say by contaminating the soil of an organic farmer or the silica sand of a semiconductor company—such a cause of action might be sustained. Nevertheless, because of the uncertain safety effects of most identification tags (e.g., the Microtrace-type particulate tags have never been subjected to an intensive scientific study, although they have been used in Switzerland for nearly two decades without any reported health problems), their low levels of concentration and dispersion (in the parts per million or billion), and their presumed utility to law enforcement, a nuisance claimant will likely have difficulty proving either that they unreasonably interfere with property, or that they cause any demonstrable physical or economic loss.
2. Trespass to Chattels/Conversion
Like a detection marker, identification taggants can also cause damage to items of personal property. As noted above, trespass to chattels and conversion are the complementary intentional tort theories that redress such wrongs. While trespass covers property loss that is mild to moderate (such that it can be repaired or its rental value determined), conversion applies to more serious interferences.
Identification tags might interfere with personal property in a couple of ways. First, if the maker or distributor of an explosive adds identification tags to the product without disclosing the presence of this ingredient, and the tags either present a safety hazard or in some way diminish the value or performance characteristics of the product, the buyer or user might argue, among other things, that the tags constitute a continuing trespass to the chattel. A second, and more plausible, argument is that identification tags from detonated explosives will become comingled with other goods that may be corrupted or damaged by these covert tracers. For instance, if livestock on a farm bordering a blasting site were to ingest such tags, causing them to become sick or die, the owner would appear to have a valid conversion claim. Moreover, if the tags were to contaminate an otherwise pure stockpile of fungible silica powder, which in turn contaminates an entire production lot of silicon wafers, both the sand and the wafer producers might state a claim for trespass to chattels or conversion, depending on the extent of the adulteration. Beyond these narrow circumstances, which are based on as yet largely unproven assumptions, the applicability of such theories seems rather remote.
3. Negligence
As the detection taggant discussion suggests, just about any human endeavor can give rise to negligence liability if it is carried on unreasonably and results in harm to another. The implementation of an identification taggant program would be no exception. There are several stages to such a program where things could go wrong. As addressed in the products liability section above, the taggants or the explosive products of which they become a part may be negligently manufactured. Additionally, either the tags or the tagged explosives may be negligently shipped (e.g., by failing to prevent rigid, particulate tags from agitating and detonating the explosive in transit), stored (e.g., without adequate security), or used (as where a blast heaves tag-infested debris onto the property of others). Record-keeping protocols, necessary to track down bombers, may be negligently conceived, administered, or maintained. And during the investigative process, tags may be negligently collected or handled by law enforcement officials and/or negligently analyzed or interpreted by laboratory personnel. Although the Swiss apparently have not experienced major legal difficulties with their identification program, differences in liability and regulatory systems, manufacturing and distribution protocols, and production tonnage make it difficult to predict how a similar program might fare in the United States.
4. Ultrahazardous or Abnormally Dangerous Activities
Certain activity operators or enterprises are held to a higher standard than that used to measure negligence. As discussed above, activities that are ultrahazardous
or abnormally dangerous—such that their risks exceed the relevant social standard of acceptability—are subject to strict liability for injuries caused by those enterprises. Obviously, the storage, shipment, and use of high explosives, with or without taggants, are the types of unusually dangerous activities that typically warrant the imposition of strict liability. Where particulate tags are used, thus creating the potential for unintended, friction-based detonations, the hazardous nature of these activities may increase. Accordingly, courts may be even more willing to extend the concept of strict liability to these and related enterprises. However, as mentioned in relation to detection tags, courts probably will not hold storers, shippers, or blasters responsible for injuries caused by the criminal theft and detonation of identification-tagged explosive materials. In the same vein, courts are unlikely to view the sale of tagged explosive products to be an activity to which ultrahazardous or abnormally dangerous strict liability may be applied, even if the merchandise occasionally is mistakenly sold to terrorists who will use it to threaten or take the lives of innocent people.
5. Products Liability
Because both identification tags and tagged explosives are marketable commodities, those who make and sell these goods can be sued under products liability theories if their products contain defects that cause injuries to others. The arsenal of theoretical weapons available to plaintiffs injured by dangerous products is catalogued and discussed in the section above dealing with detection markers. Because the properties of both types of tagged products are substantially similar (explosive materials laced with foreign substances), the analyses will be much the same for many of these theories.339 For example, in the case of ammonium nitrate, it may be feasible to add either detection or identification tags only after the product granules have been prilled. Given the similarity in the manufacturing processes for these products, negligent slipups in the production of one type of tagged explosive are just as likely or unlikely to occur in the construction of the other. Likewise, construction flaws (e.g., contamination with dust or other foreign matter) that may develop in detection-tagged products, and which may subject their sellers to strict products liability, are equally likely to appear or not to appear (to more or less the same extent, depending on the taggant material used) in identification-tagged products. Finally, false product representations are not endemic to any particular type of good, let alone any specific kind of taggant. Thus, whether selling detection or identification tags, one who promotes either taggant-type or any tagged explosive product will have to disclose all its material risks (like the fact that particulate tags may sensitize explosive materials) and avoid misstating the truth about its quality and safety.
In a few areas, the analysis of identification tags and identification-tagged products under product liability doctrine will be peculiar to these products. For example, it would be even more difficult to hold an explosives or ammonium
nitrate manufacturer liable for failing to use identification taggants than it would for neglecting to add detection taggants to her products. Unlike a detection taggant, which can save lives by stopping bombings before they take place, identification tags are not specifically designed to prevent explosions, but rather to catch criminals after the fact. A victim caught in a bomb blast would have a hard time proving a causal link between the explosive manufacturer's decision to forego identification tags and her subsequent injury (i.e., that a tagged explosive would have prevented her loss). Perhaps if a serial bomber used the same type of explosive over and over, and if the explosive could have been marked with an identification tag that would have allowed law enforcement officials to capture the culprit and prevent the subsequent bombing incident in which the plaintiff was injured, the manufacturer might be held liable for failing to adopt this alternative design. Even under this unusual scenario, however, the victim would have to prove, more likely than not, that the identification tags would have been effective in identifying the bomber and would have provided enough evidence to arrest him and keep him off the streets beyond the date of the later blast. This seems an unlikely prospect since, even in Switzerland (where the national identification taggant program is considered a success), the solve rate for bombing incidents involving tagged explosives is 44.4 percent.
a. Design Defects
Where an explosives maker elects, or is directed, to add identification taggants to a product, a number of additional analytical nuances are presented. For instance, identification-tagged products, like their detection-marked counterparts, may be accused of being defectively designed (under the theory of strict products liability) or unmerchantable (under the UCC). One way of sustaining such claims is to prove that the tags make the host explosive material unreasonably dangerous. Thus, if the tagged explosive were to detonate unexpectedly, or if it changed the physics of the blast (e.g., the amount of force, extent of shock wave, amount of debris, scope of blast area) in a way that rendered the device more hazardous, the product might be found unfit. Whereas this is a rather remote prospect for the detection tags considered previously, it is a more realistic concern for certain types of identification tags. In theory, sharp-edged particulate tags, like those used in Switzerland, may tend to destabilize explosive materials, thus altering their detonation characteristics. While the Swiss have reported no accidental explosions caused by identification taggants, the Office of Technology Assessment (OTA), which evaluated the safety of identification taggants in a 1980 report, observed that such tags may be incompatible with one kind of smokeless powder and at least one type of cast booster material.340 Based on these findings, and absent further research and testing, the OTA concluded that it could not state definitively that identification taggants could be safely added to explosives.341 Because no significant testing of particulate tags has been conducted
in the 18 years since the OTA report, the safety of these identification devices remains largely unproven. Consequently, the threat of design defect liability continues to linger.
Design problems may arise not just from the dangerous qualities of the tags themselves, but also from their failure to perform ideally. This is as true of identification tags as it is of detection tracers, which, as pointed out above, may occasionally fail to discover undetonated explosive materials. In the case of identification taggants, the performance deficiency may have two aspects: the product may not survive the blast, or it may be rendered ''unreadable," thus making it impossible to track the bomber; or the product may provide ambiguous information that leads to the arrest of an innocent person. Either way, special analytical concerns arise.
If the tags sometimes do not survive an explosion, it is as if the tags were never included in the explosive product. The issue of causation is handled the same in either scenario. That is, the plaintiff would have to show that, had the tagged product worked as planned (leaving behind a sufficient number of readable taggants), the police would have arrested the bomber for an earlier offense (the assumption being that the bomber was a serial bomber who committed the previous bombing(s) with tagged explosives) and she would not have had the opportunity to commit the offending act. At the very least, a bomb victim who fears that he may be attacked again by the same culprit might assert that a properly tagged explosive would diminish the emotional distress that follows from knowing that one's tormentor remains free to strike again. As noted above, however, both types of arguments seem tenuous, and may have difficulty winning acceptance in a typical product liability case.
The same kind of healthy skepticism may condemn the argument that ambiguous identification taggants could cause the false arrest of innocent parties. If the tags were confused with those of another manufacturer, the worst that could happen is that the police would receive a list of possible suspects (those people who bought explosives from retailers to whom the wrong manufacturer had sold) that did not include the actual perpetrator. It would not single out any particular innocent person from among this group. This would be done by law enforcement officials who consider the taggant list along with all of the other evidence in the case. If a wrongful arrest were made, it most likely would be attributed to the intervening, superseding actions of the police, and not to any defect contained within the identification tag or tagged explosive product.
b. Marketing Defects
To further reduce the risk of products liability, the makers and sellers of identification tags or tagged explosives should provide adequate information concerning the risks and performance limitations inherent in these products. Specifically, those who sell particulate tags may need to warn against the risk of
accidental detonation and instruct distributors and users how to transport and handle tagged explosives so as to avoid unwanted explosions. In addition, the product literature should make clear that the tags may not always survive blasts in the same quantities, may become cross-contaminated with other tracer products, and may not always identify the manufacturer, retailer, or buyer of the tagged explosive device. Finally, given recent events, the seller probably should mention the product's vulnerability to criminal theft and misuse and should explain how properly to store and secure these items.
c. Proof Problems
As things stand today, a claimant wishing to sue an explosives manufacturer or seller may have a hard time doing so even if she seems to have a good case under one or more of the above theories of recovery. The reason is that the injured party is often unable to identify exactly who made the offending product. This evidentiary deficiency is usually fatal to any tort case. To sustain a tort claim, or any product liability claim in particular, the plaintiff must prove that a specific individual acted wrongfully (or made a bad product) and that the actor's conduct (or product) caused her injury.342 In most bombing cases, the explosion destroys much of the evidence necessary to prove what happened. Even where pieces of the explosive are discovered and examined, the fungible nature of explosive material often makes it difficult to trace the item back to any particular seller or manufacturer. Thus, the victim may never discover the identity of the manufacturer(s) who made the ingredients used in the explosive device. Without this information, the plaintiff cannot prove the essential legal requirement of causation.343 Although some jurisdictions have adopted legal theories—called market share,344 alternative,345 or enterprise liability346—to alleviate the plaintiff's burden in this regard, these theories have not been widely accepted.347 Identification tagging programs would make such remedial legal doctrines unnecessary. When properly analyzed, identification tags allow law enforcement officials to determine who made and sold the explosive used in any particular bombing incident. Under modern, liberal discovery rules, claimants injured in bomb blasts will have easy access to this information. Thus, while tagging schemes may assist in the apprehension and conviction of more criminals, they may also increase the number of lawsuits filed against members of the taggant, explosives, and/or chemical industries, and may improve the success rate for such actions.
D. Inerting Common Explosive Chemicals and Regulatory Alternatives
Another conceivable way of curbing the terrorist bombing problem is to add something to explosive materials that makes them more difficult or impossible for a criminal to blow up. Unlike the taggant alternatives discussed above, which may in some ways make the explosive more dangerous than it was before (at least
insofar as it creates new risks while reducing the risk of criminal misuse), the inerting concepts discussed in Chapter 4 are specifically designed to render such materials less dangerous, either by decreasing or eliminating their detonability or by tempering the power of their destructive force. Although contemporary inerting approaches may not always be successful in accomplishing this objective, it appears by all accounts that they at least do not enhance the hazards of manufacturing, shipping, storing, or using explosive materials. As a result, many of the tort theories, considered above, that might be wielded against taggant and tagged product suppliers will not be pertinent to inerting agents or sellers of inerted explosive products. Nevertheless, there are a couple of ways for inerting and inerted materials to land their providers in court. Specifically, if an inerting agent failed to adequately desensitize the host explosive material, or if any applicable distribution and sales regulations348 were not complied with, those responsible for such derelictions might be held liable under a variety of tort doctrines.
1. Products Liability
A chemical, even an inerting agent like ammonium phosphate or potassium chloride, that does not do what it is supposed to do, can give rise to a product liability claim. There are basically four sorts of theories that might support such a claim.
a. Manufacturing Defects
One situation where an inerting concept may not work correctly is where it was not applied or implemented in the manner intended by the maker. As the technical discussion in Chapter 4 reveals; it is very difficult to determine what combination of inertants and explosives will render a compound nondetonable. Even 50-50 mixtures may remain detonable, given a large enough volume of explosives and a big enough detonator. In the case of ammonium nitrate, if a dependable ratio can be found, the diluents or chemical additives usually must be applied after the explosive granules are prilled. This task may be performed either by the ammonium nitrate maker or by a later distributor of the product. Either way, mistakes in mixing the two ingredients may occur. Where too little of the inertant is used, thus failing to eliminate the risk of criminal detonation, the resulting unintended product would contain a construction defect. If this material were later employed in a terrorist attack, victims of the blast might seek to hold any seller of the product strictly liable. While the product's defective assembly would make this theory viable, the outcome of such a claim ultimately would depend on the court's view of the terrorist's act. If seen merely as an inevitable outgrowth of the manufacturer's reckless quality control procedures, this misconduct will not relieve the maker of liability. If, however, the bombing is considered
an unforeseeable act of a determined opportunist, and the social costs of liability are deemed prohibitive, the defendant may still avoid tort difficulties.
b. Design Defects
The respite described above may be temporary. Sellers of inert materials, or the explosive products that contain them, might be subject to a design defect suit under a theory of strict products liability if, because of the failure of the inertant to render the explosive nondetonable, the plaintiff is injured by a bomb blast. The analysis here is very similar to that required for detection taggants. Both inertants and detection tags are designed to prevent the illegal detonation of explosive materials. If they fail in their planned purpose, they may be deemed unreasonably dangerous and thus defectively designed (especially if there existed some other inertant or inerting concept that would have thwarted the bombing attempt). For example, the patented Porter method, which appears to effectively inert ammonium nitrate in small charges of less than 3 pounds, will not prevent the detonation of larger charges of 80 pounds or more. Because most terrorist devices are likely to contain large amounts of explosive materials (the Oklahoma City bomb consisted of 4,000 pounds of ammonium nitrate), ammonium nitrate designed and sold in accordance with the Porter patent may be deemed unfit to stop illegal bombing incidents.
Such a finding of design defectiveness, however, would not necessarily guarantee liability. The plaintiff still would have to prove that the defendant (maker or seller) was duty-bound to protect her from the criminal act of the bomber and/or that the bomber's intervening misconduct was not a superseding cause of the incident.349 As noted above (and also in the earlier detection taggant discussion), this burden may be met if the evidence shows both that the criminal misuse of the product was highly foreseeable, and that the defendant specifically promoted the product's safety or effectiveness.350 Absent such proof, the wrongdoing of the bomber will usually cut off the responsibility of those whose products were opportunistically misapplied for an illegal purpose.351 However, the more foreseeable, preventable, and destructive such bombing attempts are, the less predictable the assignment of tort liability will be in each case.
c. Marketing Defects and Representational Liability
A third potential basis for suing a maker or seller of inertants or inerted explosive products may be found in the theory of strict liability failure to warn. Specifically, liability might attach if the product is sold without an adequate warning concerning (1) the likelihood that the explosive might be stolen, subject to countermeasures (like removing the inertant), and illegally misused, or (2) the possibility that the "inerted" explosive, whether criminally altered or not, may still detonate under certain circumstances.352 The seller also may be required to
provide simple instructions for handling, transporting, and storing the inerted materials.353 While many courts probably will not mandate disclosure of the more obvious problem of criminal misuse, others may find that, given the high cost of terrorist bombing incidents and the low cost of providing additional warnings or instructions, it would be irresponsible not to furnish such information.354
In some cases, the failure to release relevant safety information may even result in liability for misrepresentation.355 For example, an ammonium nitrate seller who follows the Porter patent but who fails to notify dealers, users, or others that it may not render large charges nondetonable, or who actively promotes the product as "safe" or "completely nondetonable," may be held liable for blasting injuries under theories of fraud, negligent or strict liability misrepresentation, breach of express warranty, or breach of an implied warranty of fitness.
d. Breach of Contract and Warranty
Finally, where the inerting agent diminishes the effectiveness or utility of the host explosive material or fertilizer, any seller of the inertant or the substandard host product may be sued for breach of contract356 or breach of the implied warranty of merchantability.357 To illustrate, if the inertant not only prevented the criminal detonation of an explosive material, but also inhibited the usefulness of that material to mine ores or demolish buildings, the product would be considered unfit for its ordinary purpose. Or if the inerting agent were introduced into ammonium nitrate fertilizer, thus frustrating criminal bombing attempts, the compound still might be deemed an unacceptable agricultural product if it changed the characteristics of the soil or did not adequately promote crop growth. In short, so long as the inertant causes the buyer to receive substantially less than what she bargained for, she may have an action in damages to restore her defeated expectations and to repair any consequential losses (e.g., lost business opportunities, costs of finding and obtaining alternative or remedial products or services) flowing from the seller's breach.358
2. Negligent Entrustment
Like all of the other approaches considered by the committee, a program for inerting potentially explosive materials is sure to raise a number of interesting legal issues. Before these issues can be explored, however, it is first necessary to examine the assortment of legal responsibilities that currently face retail sellers of dangerous or potentially dangerous products.
One who supplies to another a dangerous instrumentality, and who knows or has reason to know that the recipient is likely to use it dangerously, may be held liable for negligent entrustment if the recipient employs the instrumentality to inflict harm upon some third party.359 The entrustment may be gratuitous or as
part of a sales transaction.360 The likelihood of the resulting harm depends on the recipient's age, sobriety, training and experience, and demonstrated propensity for acting unreasonably (with the same or other instrumentalities).361 Using these factors, the court in Collins v. Arkansas Cement Co.362 held that a cement company, which used cherry bombs to dislodge caked cement powder inside its storage silos, negligently entrusted the bombs to a drunken employee who in turn gave a few of the explosives to a group of children. Similarly, the court in Jones v. Robbins363 upheld a judgment against a service station owner whose employee sold gasoline to a 6-year-old girl.
The logic of these cases arguably might apply to the sale of bagged ammonium nitrate (AN) fertilizer. There is little doubt that explosives generally are dangerous instrumentalities that require greater precaution by those who manufacture, ship, store, use, or sell them.364 However, the legal classification of ammonium nitrate, especially agricultural-grade AN that is mixed with inerting agents, is not so clear. Although even densely prilled agricultural AN may be rendered explosive if ground up and packed with a detonator, inerted AN is not supposed to blow up unless the inertant is intentionally removed. Thus, a court may be more reluctant to hold the seller of inerted AN liable for negligent entrustment. Still, because it is possible (perhaps even foreseeable) that determined criminals will attempt to separate inerting agents from AN products (as is commonly done by political terrorists worldwide), sellers of bagged, inerted AN may bear some responsibility to screen the purchasers of such goods.
If they do, an injured plaintiff must prove that such a seller knew or should have known that the buyer would use the product in an irresponsible or illegal fashion. This epistemic requirement has caused the downfall of most negligent entrustment cases. For example, in Knighten v. Sam's Parking Valet,365 both a restaurant and a valet service were relieved of liability for giving car keys to an intoxicated patron who later ran into the plaintiff. Similarly, in Rosser v. Brown,366 a department store that sold a BB gun to a 12-year-old was found not liable when the plaintiff failed to show that the minor-buyer had misused such a gun in the past or was likely to do so in the future. And in Roberts v. Shop & Go, Inc.,367 a convenience store that sold gasoline to an arsonist was exculpated even though the vendor's clerk saw him act strangely and knew that he did not have a customary use for the gas. These cases, and others like it, suggest that courts typically will not countenance such claims unless the product sold is highly dangerous, the seller has specific knowledge of the buyer's dangerous intent or is witness to conduct that clearly evinces her unsuitability to use the product, and, given the available information, the seller displays a reckless disregard for the safety of the buyer or others whom she may injure.368 Thus, a retail seller of ammonium nitrate, inerted or otherwise, is not likely to incur liability simply by selling bagged AN to strangers who act a little unusual or who look a little suspicious. To run afoul of the law, such a party probably would have to ignore clear signs—like a declared criminal intent, a known terrorist group affiliation, or an utter refusal
or inability to explain the purpose of the purchase—that present a strong likelihood that the AN will be misused to injure others.
3. Statutory or Regulatory Negligence
Notwithstanding the duties imposed by the common law doctrine of negligent entrustment, a retail seller may be subject to certain other distributive obligations. Like opinions rendered by judges, legislatively enacted statutes and regulations promulgated by agencies may create duties of care that must be followed by those to whom they apply.369 Thus, if Congress were to pass legislation for controlling the sale of bagged ammonium nitrate, retail sellers might be statutorily required to further screen prospective purchasers of such goods.
a. Effect of Noncompliance: Negligence Per Se
Generally, one who violates a statutory requirement may be held liable for any injuries caused by her transgression. Under the theory of negligence per se, the breach of the statutory duty gives rise to an inference of the violator's negligence.370 The strength of the inference varies from jurisdiction to jurisdiction, but may range from conclusive proof of negligence371 to a presumption of neglect372 to merely some evidence of unreasonable conduct.373 To sustain a claim of negligence per se, the plaintiff first must demonstrate that he falls within the class of persons that the statute was designed to protect, and that his injury was of a type that the statute was intended to prevent.374 If successful in meeting this burden, he then must show that the statutory violation was the proximate cause of his injuries.375
Statutes regulating the distribution of dangerous products often provide the basis for negligence per se claims. For example, the Gun Control Act of 1968 is frequently cited as establishing a number of civilly enforceable restrictions on the sale of firearms and ammunition.376 Specifically, one section of that statute prohibits the sale of such weapons to people who the seller knows or has reason to believe have been convicted of a felony, have been dishonorably discharged from the Armed Forces, have been adjudicated mentally defective, or have been committed to any mental institution.377 Congress's purpose for passing this statute was to protect the public from the negligent or intentionally harmful acts of these presumptively dangerous individuals.378 Accordingly, one injured by a statutorily incompetent person may recover damages from any merchant who supplied the culprit with a firearm in contravention of the act.379 Because of the similar hazards posed by guns and explosives, and the near identity of the federal regulations governing each type of product, breaches of the Federal Explosives Law also can give rise to claims of negligence per se.380 For example, a plaintiff who proves that the defendant illegally sold explosive without a permit, or illegally supplied explosives to a known felon, may hold the seller liable without
introducing additional evidence that the seller's conduct breached an abstract standard of reasonable care.381 Based on the rather frequent invocation of these statutory provisions in civil lawsuits, it seems safe to surmise that regulations restricting the retail sale of ammonium nitrate also would be found to substantiate claims of negligence per se. More directly, a retailer who sold uninerted or inadequately inerted bulk or bagged ammonium nitrate might be held negligent as a matter of law for the injuries resulting from her indiscretion.
This does not mean that liability would be automatic. A plaintiff bringing such a cause of action still would have to overcome a couple of significant impediments. As noted above, before a claim of statutory negligence can prevail, the plaintiff must demonstrate that the statute or regulation was designed to protect her, and others similarly situated, from the kind of injury she actually sustained.382 With regard to the gun control and federal explosives laws, these restrictions are supposed to protect the public from the harmful acts of specific types of dangerous people. If the victim is injured by one of these parties, the statute clearly applies; if the harm is caused by some unlisted malefactor, however, the victim may fall beyond the law's protective ambit.383 As for ammonium nitrate, there are no current restrictions on who may purchase such goods. While such a regulation surely would be born of the concern over terrorist bombings, it may not be as clear precisely who is to be protected by the law, or against whom these safeguards are to apply. Thus, if an otherwise unremarkable bomber illegally obtained uninerted AN from a local retail outlet and used it to blow up a building, victims of the blast might have some difficulty proving that they are specific, intended beneficiaries of the regulation. Should this requirement be met, the plaintiffs nevertheless might have trouble establishing that the statutory breach was the proximate cause of their injuries. Indeed, some courts may find that the intentional criminal act of the bomber, and not the neglect of the seller, is the sole legal cause of the resulting mayhem.384 However, if a court determines preliminarily that the regulation was created to protect the plaintiff from exactly this sort of criminal mischief, it would be strange for the court to then find that this foreseeable misconduct cuts off the seller's protective responsibility. Normally, as the interpretation of the statute's scope goes (e.g., covering the plaintiff), so goes the analysis of proximate cause (e.g., establishing the link between the seller's breach of the statute and the plaintiff's resulting injuries).385
b. Effect of Compliance
So the seller's violation of a statutory duty may help establish her negligence, but will proof of her compliance discharge her from tort liability? Like most legal questions, there is no simple answer to this question. Courts have taken varying approaches to this problem. As a general rule, the more expansive and intensive the regulatory provision, and the more informed and independent the regulatory agency, the greater the court's deference toward the regulation will
be. Thus, where the regulation is stringent, reflecting a considered analysis of costs and benefits, a defendant who complies with its provisions may be relieved of liability.386 Where the regulator's role is less active and more supervisory, some states hold that evidence of the defendant's regulatory compliance gives rise to a rebuttable presumption of her exercise of due care.387 And where the agency's involvement is minimal, proof of compliance may be admitted to establish the defendant's due care, but it may be no more probative of that issue than other forms of admissible evidence.388 In this last situation, the statute or regulation is said to merely establish a minimum threshold of safety, and does not define the standard of reasonable care.389 From this brief review, one can see that retail sellers of ammonium nitrate will not necessarily enjoy immunity from tort liability simply because they do as prescribed by Congress or an implementing agency. Should comprehensive and detailed screening procedures be imposed by regulation, greater weight will be accorded to these standards in a court of law. If, however, a regulation merely restricts the sale of certain types of ammonium nitrate products, the fact of compliance may have little impact on the final determination of the seller's responsibility for entrusting a dangerous instrumentality to a mad bomber.
E. Controlling Precursor Chemicals
Of all the approaches considered by the committee, the last alternative—controlling the sale and distribution of precursor chemicals—is probably the least intrusive. Instead of requiring some physical modification of an explosive material, it would simply make their constituent chemicals more difficult to procure. As discussed in Chapter 5, this goal can be accomplished in a variety of ways ranging from voluntary screening programs to mandatory record keeping to licensing or restricting the sale of such goods. Obviously, the civil liability issues that may arise will also vary depending on the type of regulation adopted. To better assess the legal costs of such regulations, it is first necessary to consider the current legal obligations owed by those who manufacture, transport, distribute, or sell precursor chemicals. With this background in mind, the analysis then turns to the specific legal quandaries presented by the sundry types of possible regulatory programs. Before delving into this discussion, the authors note that many of the applicable liability theories are explained in depth in sections above, and so are not reexamined here. In fact, for some theories, both the issues and the analyses relevant to prior approaches are virtually identical to those presented in this section. These similarities are highlighted, and cross-references are supplied, but no further discussion is offered.
1. Common Law Responsibilities
Even with no new regulation, legal responsibilities for precursor chemicals
run from the top of the distributive chain to the bottom. Precursor chemicals are products, and so anyone who makes or sells "defective" chemicals, or defective products containing such chemicals, may be held liable if they cause injury.390 For example, if an ammonium nitrate maker and ammonium phosphate maker collaborated to create one of the inerted retail products mentioned in the previous section, and the AN manufacturer either codesigned or erroneously mixed the product with too much AN (thus leaving it in a detonable state), the AN maker could be held strictly liable under any or all three product defect theories (construction defect, design defect, and failure to warn). The same precursor chemical maker might also be held liable simply for producing a product that, because of its foreseeable criminal misuse and lack of anticrime components, appears to be unreasonably dangerous.
Further down the distributive chain, those entrusted with shipping and storing precursors may be held responsible for engaging in ultrahazardous or abnormally dangerous activities.391 To the extent that such chemicals may prove hazardous if spilled or stolen, enterprises charged with handling these products in the intermediate stages of commerce may be held to heightened standards of stewardship.
And at the retail sales level, purveyors of precursor chemicals, like ammonium nitrate or potassium chlorate, must refrain from negligently entrusting such dangerous materials to those likely to injure or be injured by them. Indeed, in Wendt v. Balletto,392 the court upheld a verdict against a pharmacist who negligently sold potassium chlorate to a 14-year-old boy who used the chemical to make several bombs and grenades. Similar liabilities await retail merchants who knowingly distribute harmful or explosive precursors to people too incompetent to understand their risks, or callous or foolish enough to disregard them.
2. Voluntary Programs
One way for retailers to address the problem of entrusting (i.e., selling) potentially explosive chemicals to criminals is to voluntarily adopt stricter screening protocols. As discussed in Chapter 5, to some extent the fertilizer industry and its retail outlets have already made strides in this direction. Under a program called "Be Aware for America," fertilizer sellers are asked to look for certain peculiarities in their purchasers; to note important information like the buyer's physical appearance, vehicle description, and license plate number; and to call the ATF to report unusual incidents. The question from a legal standpoint is whether voluntary programs of this sort can actually get their participants in tort trouble.
As a general rule, people do not have a legal duty to perform acts that will benefit or protect others.393 However, where a special relationship exists between the defendant and the plaintiff, or between the defendant and some third party who foreseeably poses a danger to the plaintiff, the defendant may have an
obligation to act on the plaintiff's behalf.394 Moreover, if the defendant voluntarily undertakes to aid the plaintiff, and either induces the plaintiff's reliance or increases the risk to which she is already exposed, the defendant may be held liable for her negligence.395
As discussed above, retail sellers of dangerous products stand in a special relationship with their buyers;396 accordingly, such purveyors owe a duty to the public not to sell their merchandise to persons who they know or should know will use them dangerously.397 In large measure, the ''Be Aware" program merely seems to formalize the retailer's common law entrustment responsibilities, such as noticing whether the buyer is a stranger, acts nervous, or is unable or unwilling to provide crucial information. But the program also requires more of the seller—specifically, that she contact law enforcement whenever something seems amiss. While this added undertaking increases the seller's overall pretransactional burden, it does not appear to enlarge her legal liabilities. The reason is that the voluntary reporting requirement may not likely to be detrimentally relied on by anyone, nor would it necessarily expose others to greater danger. Criminal investigations being what they are, a retailer's failure to report an isolated incident of suspicious behavior may not have a significant impact on public safety.
Even if it did, there may be good public policy justifications for refusing to punish good-willed merchants who voluntarily undertake to assist the government in catching criminals intent on spreading misery and destruction. For example, a couple of popular discount stores recently have been sued for failing to adhere to store policies prohibiting the sale of firearms to minors or visibly intoxicated persons.398 However, courts in these cases consistently have exonerated the stores, stating (in each case) that "[i]mposition of a legal duty on a retailer on the basis of its internal policies is actually contrary to public policy. Such a rule would encourage retailers to abandon all policies enacted for the protection of others in an effort to avoid future liability."399 Based on these and other cases,400 it appears that if ammonium nitrate dealers are sued for failing to strictly adhere to voluntary "Be Aware for America" policies, courts may show such merchants a considerable degree of leniency.
3. Statutory or Regulatory Responsibilities
Of course, the federal government may choose to enhance the responsibilities of those who sell precursor chemicals by passing legislation or adopting regulations that require that certain procedures be followed. Regulations of this sort already govern the sale and distribution of firearms, ammunition, and explosives. Should similar safeguards be mandated by Congress, the implementing statute or regulations may serve to expand the tort duties of those that supply precursor chemicals to the public. As noted in the last section, courts may apply statutes or regulations to define a relevant standard of care if the law's legislative purpose seems to support this usage. Where such a provision is applicable, violation
of the relevant regulatory protocol may amount to negligence per se. So if an ammonium nitrate merchant failed to check a buyer's identification, as might be required by regulation, the seller's dereliction might provide conclusive, presumptive, or persuasive evidence of her negligence.
A more difficult question arises if the merchant complies with specific regulatory requirements, but nonetheless sells a dangerous precursor to a suspicious individual who later uses the chemical to make a bomb. For example, in Kalina v. KMart Corp.,401 the defendant's clerk checked a gun buyer's driver's license and had him fill out an ATF form, as required by the Gun Control Act, before selling him the weapon that he later used to kill his estranged wife. The defendant-store argued that the clerk's compliance with the Treasury Department's regulations relieved it of any further responsibility. Noting that jurisdictions are split on this issue,402 the court concluded that the defendant still could be found to have violated the more general statutory admonition that firearm dealers refrain from selling guns to persons who they know or reasonably believe to be statutorily disabled (i.e., convicted felons or those dishonorably discharged from the military or previously hospitalized in a mental institution).403 Thus, although an ammonium nitrate dealer could strengthen her legal position by strictly following the letter of each specific regulatory directive, such compliance still might not be enough to secure her from liability. In some cases, reasonableness may demand that she do more to keep her potentially explosive product out of the hands of dangerous criminals.
IV. REGULATION
A. Introduction
In preceding sections, this appendix has considered the panoply of legal problems that might arise from technological approaches to ameliorating the threat of terrorist bombing attacks. In particular, the analysis has focused on the effect that such technologies would have on the criminal prosecution of suspected bombers, and on the liabilities that these technologies might pose for their makers, shippers, distributors, storers, sellers, and users. But these discussions do not quite fill the canvas of this complicated legal portrait. Presumably, any technology deemed desirable by the committee, or any alternative set of sales or distribution controls that might better reduce the risk of criminal bombings, could be implemented only in one of two ways: either voluntarily through a joint industry effort or involuntarily through the passage of some sort of regulatory legislation. If the latter option were chosen, a couple of additional legal questions would arise. First, would such laws survive constitutional attack, or would they be found to exceed the federal government's regulatory authority or to violate important substantive rights of those regulated? Second, if these regulations were enforceable,
how would they affect or interface with the regulatory regime of state tort law? These questions are addressed in the remainder of this appendix.
B. Constitutional Constraints on Federal Regulation
In the main text of this report, the committee recommends a number of possible regulatory alternatives that may help to prevent criminals from obtaining and detonating explosive materials. All of these proposals could involve some sort of lawmaking by the federal government. For example, the committee recommends that packaged ammonium nitrate be sold only by retail outlets in nondetonable mixtures; that current federal explosives laws be extended to include intrastate transactions; and that a sliding-scale scheme of controls on the sale and distribution of certain precursor chemicals be instituted.
Should the federal government adopt any of these recommendations, it risks invading the interests of others, in two very different ways.
First, it may overstep the bounds of its own authority and, in so doing, usurp the power of the several states to determine what is best for their citizens. This power play between the state and federal governments, often referred to in legal circles as the concept of "federalism,"404 is mediated by the United States Constitution. The Commerce Clause and Tenth Amendment to the Constitution, which are examined in the first part of this section, establish appropriate constraints on the federal government in regard to the states. The Supremacy Clause of the Constitution, on the other hand, confirms the supervening, preemptive authority of federal law and, at the same time, delineates the limits of state power with respect to the federal government. Accordingly, an analysis of the Supremacy Clause is necessary to round out this discussion of federalism.
The second way in which federal regulation may raise constitutional concerns is by treating the regulated parties unfairly. Specifically, if a regulation has an unfair impact on the lives of one group more than any other, it may offend the notion of "equal protection under the law" as contained in the United States Constitution. Or, if a law denies someone's fundamental rights, or unfairly restricts her liberty interests, it may violate the substantive due process guarantee of the Fifth Amendment. Finally, if a regulation effectively deprives a person of her property, and she thereafter is refused remedial compensation, it may run afoul of the federal constitution's Takings Clause. These fundamental fairness doctrines are considered further at the end of this section.
1. Federalism: The Commerce Clause
The United States Constitution creates a government of enumerated powers.405 Those powers not delegated to the federal government are reserved to the states or the people.406 Among those delegated powers is the power "[t]o regulate commerce with foreign nations, and among the several states, and with the
Indian Tribes."407 Three broad activities fall within the commerce power: (1) using the channels of interstate commerce; (2) regulating and protecting the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come from purely intrastate activities; and (3) regulating those activities, even if they are purely intrastate, having a substantial relation to interstate commerce, that is, that "substantially affect" interstate commerce.408 The present primary federal regulatory scheme, because its principal provisions reach only explosive materials intended to be transported across state lines, falls within one or both of the first two classes.409 The proposal in the main body of the report to extend federal regulatory authority to purely intrastate sales of explosive materials and some of their precursors might still fit within one of the first two classes. Failing this, the authority can probably be justified as fitting within the third class, requiring a "substantial effect" on interstate commerce.
In determining whether an activity has a substantial effect on interstate commerce, a court must consider not merely the effect of an individual act (e.g., a single instance of selling explosive materials to unpermitted buyers) but rather the cumulative effect of all similar instances (e.g., the effect of all intrastate sales of explosive materials to unpermitted buyers).410 The question is whether the individual activity, when multiplied into general practice, contains a threat to the interstate economy that requires preventative regulation.411
Illustrative is Wickard v. Filburn,412 which upheld application of amendments to the Agricultural Adjustment Act of 1938 to the production and consumption of homegrown wheat. The Wickard Court rejected earlier distinctions between "direct" (within the commerce power) and "indirect" (outside the commerce power) effects on interstate commerce. While Filburn's own contribution to the demand for wheat may have been trivial by itself, taken together with that of many others similarly situated, the impact on interstate commerce would be far from trivial.
The question whether an impact is "substantial" is imprecise and necessarily one of degree.413 Some modern precedent has cautioned that the commerce power must not be extended to effects on interstate commerce that are so indirect and remote that to embrace them would effectively obliterate the distinction between what is local and what is national.414 Nevertheless, the United States Supreme Court has generally deferred to congressional judgments that an impact on interstate commerce is substantial.415 This deference has essentially constituted "rational basis review," the Court asking itself whether Congress "could have" rationally found a substantial impact, not whether Congress did expressly so find.416 Moreover, the Court has been unwilling to second-guess these imputed or implicit congressional findings.417 Indeed, between 1936 and 1995, the Court did not strike down a single congressional statute as overreaching Congress's delegated power under the Commerce Clause.418
This deference has extended to federal regulation (albeit, in the past an extremely rare event) of state-level criminal activity. For example, in Perez v.
United States,419 the Court held that a federal statute making it a crime to engage in loan-sharking ("extortionate credit transactions") at the local level was within Congress's Commerce Clause power. Such purely intrastate activity, the Court concluded, was within a class of activities that might affect interstate commerce because, for example, it might help organized crime.420
Moreover, many understood the Court's concern to be only whether interstate commerce was substantially affected, not whether the regulated activity was itself "commerce" or something else entirely.421 Indeed, the modern Court has rejected distinctions among, for example, "commerce," "manufacturing," and "agriculture."422
This well-settled scheme was disturbed by United States v. Lopez.423 In Lopez, the Court struck down a congressional statute as beyond the commerce power for the first time in almost 50 years. There, a twelfth-grade student carrying a concealed handgun into his high school was convicted of violating the Gun-Free School Zones Act of 1990, which forbade "any individual knowingly … possess[ing] a firearm at a place that [he] knows … is a school zone."424 The Court struck down the statute as intruding too far into intrastate activity for three reasons.
First, the statute, in the Court's view, had nothing to do with interstate commerce or any sort of economic enterprise. Mere possession of a firearm is not in itself part of a broader regulation of economic activity that would be undercut without intrastate regulation. Even viewed in the aggregate, mass possession of guns near school yards would not substantially affect interstate commerce.425
Second, there were no specific express congressional findings regarding the effects on interstate commerce of possessing guns in a school zone.426 The Court agreed that Congress is not normally required to make such findings. Nevertheless, the Court stressed that congressional findings "would enable us to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no substantial effect was visible to the naked eye."427
Third, the Court rejected government arguments that guns in school zones lead to violent crime, which raises nationwide insurance rates, discourages interstate travel, and lowers national economic productivity by threatening education.428 The Court rejected these arguments because their implications would be that government could regulate all activities that lead to violent crime or lower national productivity, no matter how tenuous the relationship to interstate commerce. Thus marriage, divorce, and child custody could, for example, become subject to federal regulation. It would, said the Court, become "difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where states historically have been sovereign."429 To hold otherwise would eliminate any distinction between "what is truly national and what is truly local."430
The impact of Lopez is uncertain. Only five Justices were in the majority,
with two of those justices joining in a concurring opinion that stressed the need ordinarily to defer to congressional Commerce Clause judgments and to apply a practical conception of the Commerce Clause, and further stressing the importance of state decisis, that is, of stability in Commerce Clause jurisprudence based on precedent.431 These concurring justices joined the majority primarily because they saw the matter regulated—simple possession of a handgun—as both having no commercial nexus and intruding on education, an area of "traditional state concern."432 The four dissenting justices found ample evidence of a substantial effect on interstate commerce in the collapse of our educational system from widespread violence and stressed the importance of ordinarily deferring to Congress.433 Only one justice sought the radical abandonment of the substantial effects on interstate commerce test, viewing it as inconsistent with the framers' original understanding of the Commerce Clause.434 Moreover, many lower federal courts have construed Lopez narrowly as requiring only that express and specific legislative findings demonstrating a substantial effect on interstate commerce are necessary to regulating purely intrastate activity.435
Even if Lopez is read broadly, however, the possible changes in federal regulation of explosive materials and their precursors are distinguishable from the federal criminalization of firearms possession near schools in Lopez.
The committee is recommending that Congress regulate a commercial activity—the manufacture, sale, and distribution of explosive materials and their precursors. It is precisely economic enterprises whose activities will be controlled. It is hard to see why such sales would be any less "commercial" than loan-sharking, motel rentals, and restaurant food service, all of which have been held subject to regulation under the Commerce Clause.436
Of course, the analysis above proceeds from the perspective of the explosives manufacturers, distributors, and retailers. The licensing scheme proposed also burdens buyers, who may or may not be making purchases for commercial uses. Yet those buyers will be subjected to the proposed federal licensing requirements. Does such regulation at the point of ultimate purchase include the buyer's activity as part of "commerce"? National Organization for Women, Inc. v. Scheidler,437 decided by the Supreme Court only one year before Lopez, suggests that the answer to this question is "yes." There, the National Organization for Women (NOW) sued members of a coalition of antiabortion groups under the civil provisions of the federal Racketeering Act.438 The antiabortion groups were charged with seeking to intimidate abortion clinic employees and women seeking abortions. NOW's claim was that these purely private groups, who had no profit-seeking goal, nevertheless were "engaged" in or "affecting" commerce—Racketeering Act requirements identical with Commerce Clause requirements. The Supreme Court agreed that it was irrelevant whether the antiabortion groups conducted an economically motivated enterprise. What mattered was that these groups' activities could drain money from the economy by harming businesses such as the clinics. If the antiabortion groups—who never purchased any
items from a commercial entity—can be seen as having a nexus to commerce, then surely those purchasing items from commercial entities should be seen as having such a nexus.439 Explosive materials purchasers, who are the lifeblood of the explosive materials business, should thus be viewed as involved in activity that is "commercial."
The next question becomes, however, whether that commercial activity either is "in," or "substantially affects," interstate commerce. if the activity is "in" interstate commerce, Lopez does not even apply. There may indeed be an argument that this is so. Only one week after deciding Lopez, the Supreme Court decided United States v. Robertson.440 In Robertson, the defendant, an Arizona resident, allegedly bought an Alaskan gold mine with drug crime proceeds. He purchased mining equipment and supplies in Los Angeles, shipping them to the mine. While most of the mine's gold was sold to Alaskan refiners, Robertson personally took about $30,999 worth of gold out of the state. He was convicted under the Federal Racketeering Act. The Ninth Circuit, on appeal, however, accepted the defendant's contention that there was an insufficient link to interstate commerce for such a relatively small and entirely local operation, despite the defendant's keeping "a few nuggets" of gold for himself. To hold otherwise, held the appellate court, would be to declare that all Alaskan local businesses affected interstate commerce because, given Alaska's isolation, most businesses' equipment and supplies will come from out of state.
The Supreme Court disagreed. Indeed, the Court rejected the whole framing of the issue in terms of whether interstate commerce was affected. Rather, Robertson's purchase of out-of-state equipment and supplies, hiring out-of-state employees, and taking 15 percent of the mine's production out of Alaska established that the mine was "engaged in" interstate commerce: "[A] corporation is generally engaged in commerce when it is itself directly engaged in the production, distribution, or acquisition of goods and services in interstate commerce."441
It seems highly likely that local explosives retailers will have purchased much of their equipment and many of their supplies in interstate commerce, thus fitting within Robertson's logic, if not necessarily its specific facts. Consequently, even intrastate sales of explosive materials might be viewed as in or part of interstate commerce. If that is so, we need not reach the Lopez question of whether intrastate explosive materials sales substantially affect interstate commerce.
However, even if intrastate explosives purchases are not in interstate commerce, such sales should nevertheless substantially affect interstate commerce, thus implicating Lopez.
While many people merely possessing guns, the situation in Lopez, may have little national economic impact, the situation is arguably very different if many persons nationwide purchase explosives and their precursors for criminal purposes. There is ample evidence in the main text of the committee's report that such conduct can impose significant costs on the national economy.
Unfortunately, this argument may be one of mere semantics. While the Lopez Court repeatedly characterized the acts being regulated as just possessing guns near schools, the Court understood that the real purpose of this regulation was to stop the guns from being used against students and teachers. Justice Breyer, in his dissent, painstakingly documented the significant impact of gun-related violence on education and thus on our economy.442 The majority opinion made no effort to challenge the accuracy of this documentation.443 Rather, the majority challenged Justice Breyer's logic, for, in the majority's view, recognizing such an impact intruded too deeply on a local concern—education—without a compelling justification for that intrusion.444
With explosive materials regulation, unlike in Lopez, we both have a compelling justification and do not regulate a matter, like education, of traditionally local concern.
The compelling justification is that there is no way effectively to regulate intrastate activity. The current federal scheme relies on an ultimate user's word that he will merely use the product in-state. Nothing prevents him from purchasing a product in a state with lax laws, and then transporting it to another state to use in terrorist activity. The line is one that cannot effectively be drawn, and the risks of error are too great to require a case-by-case connection to interstate commerce.445 That is what the current scheme involves, a scheme that is simply not working.
Finally, explosives manufacturing, distribution, and use are simply not matters of traditional state concern. There has certainly been a confusing patchwork of inconsistent state regulation, but that has supplemented concurrent federal regulation.446 Moreover, explosive materials distribution simply does not involve deeply rooted American values and traditions long widely viewed as of predominantly local concern—in sharp contrast to education, the area of Lopez's concern. As an area that cries out for the effectiveness that only the consistency of a uniform nationwide standard can bring, explosive materials regulation is precisely the kind of economic regulation that the Commerce Clause is meant to reach.447 Explosive materials regulation is just very different from family law, education, or even criminal law enforcement, areas long the subject of primarily local regulation that can often succeed at the purely local level.448
While the impact of Lopez is, therefore, uncertain, there is good reason to believe that the regulations proposed by the committee will survive Commerce Clause scrutiny. This conclusion can be even more confidently made if Congress includes specific detailed factual findings concerning the impact on interstate commerce in any legislation that it might adopt on this question.
2. Federalism: The Tenth Amendment
While the Commerce Clause provides the most frequently debated constraint upon the authority of the federal government, it is not the only constitutional
provision to set such limits. The Tenth Amendment also restricts what national lawmakers can and cannot do. The Tenth Amendment states that "[t]he 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."449 This simply means that the federal government possesses only powers specifically given to it by the Constitution and no others. In effect, then, the Tenth Amendment establishes the independent sovereignty of each state government, and prohibits the federal government from bullying the states or taking away their traditional powers.
Depending on how they are set up and administered, some of the committee's regulatory proposals may face constitutional attack under the Tenth Amendment. For example, the committee recommends that certain controls be placed on the sale or distribution of some precursor chemicals like ammonium nitrate. Such controls could include background checks on all buyers, the creation and maintenance of sales transaction databases, and/or establishing record-keeping and reporting protocols, among many others. There is no Tenth Amendment problem with any of these alternatives so long they are performed by private parties. However, if a federal regulation were to require state or local officials to carry out these tasks, a constitutional challenge would almost certainly follow.
As a general rule, the federal government cannot compel states to enact or administer a federal regulatory program. In New York v. United States,450 the State of New York challenged a provision of the Low-Level Radioactive Waste Amendments of 1985 that ordered state governments either to take full legal title to radioactive waste produced by private parties, and thus incur liability for any harm caused by the waste, or to regulate the radioactive material according to federal mandates. The United States Supreme Court struck down this provision, holding that it violated the Tenth Amendment. In so doing, the Court reasoned that the unsavory alternatives offered by the statute effectively coerced the states to do the bidding of the federal government.451 Because Congress did not have the authority to impose either option as a separate requirement, the Court noted, it also was not empowered to offer a choice between the two.452 Nevertheless, the Court suggested a couple of permissible ways for Congress to encourage states to institute particular regulations. For example, it would be lawful for the federal government to attach certain conditions to the disbursement of federal funds,453 or to offer states the choice of regulating a given area according to federal standards or having their authority to regulate that activity preempted by federal legislation.454 What Congress cannot do is order states to adopt particular regulations or to administer regulatory programs already adopted by the federal government.455
The most recent, and most analogous, invocation of the Tenth Amendment has been in the area of gun control. In 1993, Congress enacted the Brady Handgun Violence Prevention Act.456 The act is designed to prevent federally licensed firearms importers, manufacturers, and dealers from selling handguns to ineligible
persons. To meet this goal, the act requires that all prospective buyers first undergo a background check.457 A federal automated verification system will be set up to handle this task beginning in late 1998.458 In the meantime, the act requires that local Chief Law Enforcement Officers (CLEOs) (typically sheriffs and police chiefs) perform the background checks, provide written notification of denials to prospective buyers, and where sales transactions are approved, destroy all records of their investigations.459
Shortly after the act's passage, local law enforcement officials from around the country filed lawsuits seeking to enjoin its enforcement and to have its interim provisions declared unconstitutional under the Tenth Amendment. These suits initially received mixed reactions from the federal courts. Some courts, like the Fifth Circuit Court of Appeals in Koog v. United States,460 found the interim provisions unconstitutional, explaining "that the interim duties effectively 'commandeer' the legislative processes of the States' and, in violation of the Tenth Amendment, cross the line from permissible encouragement of a state regulatory response into that constitutionally forbidden territory of coercion of the sovereign States."461 However, the Ninth Circuit Court of Appeals in Mack v. United States462 upheld the constitutionality of the interim provisions, finding in the Brady Act "nothing unusually jarring to our system of federalism."463 The United States Supreme Court recently resolved this conflict. In Printz v. United States,464 the Court, after examining the history and structure of the Constitution and its own prior precedents, declared unconstitutional both the Brady Act's background check and its receipt-of-forms requirements. Fearing that the interim provisions would destroy the constitutional principle of dual sovereignty that controls the delicate relationship between the state and federal governments,465 and would further disturb the precarious balance of powers existing among the federal government's three branches,466 the Court held that "[t]he mandatory obligation imposed on CLEOs to perform background checks on prospective handgun purchasers plainly runs afoul of [the] rule [of New York v. United States (discussed above)]"467 that "[t]he Federal Government may not compel the States to enact or administer a federal regulatory program."468
The fate of the Brady Act has obvious implications for any regulations that Congress may devise to control ammonium nitrate or other explosive products. Presumably, Congress, under its Commerce Clause power, may implement a program to regulate the interstate and intrastate distribution of explosives. If so, it clearly has the authority under the Tenth Amendment to require private dealers to take certain measures to better screen their purchasers, or to marshall its own federal minions to administer and enforce its regulatory edicts. It can even cajole states to adopt such federal standards, either by promising federal grant moneys or by offering to take over the entire field of explosives regulation. However, the federal government may run into problems if it attempts to force state actors to put the federal mandates into effect. Thus, it should avoid relying on local law enforcement or other public officials to perform background checks, conduct
investigations, keep records, or do anything else that may substantially occupy their time and prevent them from satisfying their normal occupational responsibilities.
3. Federalism: The Supremacy Clause and Preemption
The committee recommends that the ATF urge Congress to consider ways to minimize increased costs to industry from an expanded federal licensing scheme—one that would reach purely intrastate transaction. One illustration that the committee offers of how to reduce those costs is for the new federal law to preempt all state laws. States would thus be barred from continuing, or creating, state schemes that supplement federal law, whether or not those schemes are consistent with the federal legislation. Accordingly, there would be a single, uniform national licensing scheme. Given congressional authority to regulate explosive materials under the Commerce Clause, Congress may indeed choose to preempt state explosive materials laws in this fashion.
Article VI of the Constitution provides that the laws of the United States ''shall be the supreme law of the land; … any thing in the Constitution or Laws of any state to the Contrary notwithstanding."469 Under this Supremacy Clause, state law that conflicts with federal law is without effect.470 The Supreme Court starts with the assumption, however, that the historic police powers of the states are not to be superseded by federal law unless that is the clear and manifest purpose of Congress.471 The purpose of Congress is the ultimate touchstone of preemption analysis.472
Congress's intent may be explicitly stated in the statute's language or implicitly contained in its structure and purpose.473 In the absence of an express congressional command, state law is preempted if that law actually conflicts with federal law, or if federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the states to supplement it.474
Here, however, the committee focuses on legislation regarding express preemption. There would thus be no doubt about Congress's intent, for that intent would be expressly and clearly stated in the statute. The Court has upheld preemption of supplemental but consistent state laws where congressional intent has been far less clear than is the case here.475 Similarly, the Court has repeatedly found federal licensing schemes to preempt supplemental (but consistent) state laws where Congress intended a uniform national scheme.476 That would indeed be the case here.
There are, of course, unusual circumstances where a congressional effort to preempt state law conflicts with another constitutional provision. However, none of these circumstances are applicable here.477 As noted in the last section, careless drafting could raise a potential conflict with the Tenth Amendment, by compelling states to administer federal regulatory programs.478 The major provisions
of the Brady Gun Control Law,479 it will be recalled, recently were invalidated by the Supreme Court on this ground.480 Careful legislative wording that would avoid involving state governments in enforcing any federal explosive materials licensing scheme should, however, cut off any such challenge. Should Congress choose preemption, therefore, it appears to have the constitutional power to take over the field of explosives regulation.
4. Fairness: Equal Protection
Assuming that Congress has the authority to regulate a particular field (under the Commerce Clause), and it either properly preempts further state regulation (under the Supremacy Clause) or accords appropriate deference to the states in implementing its regulations (under the Tenth Amendment), it still may run into constitutional trouble if the regulations are overly burdensome or unfair. One guarantee of fairness in the Constitution appears in the Fourteenth Amendment, which provides that "[n]o State shall make or enforce any law which shall … deny to any person within its jurisdiction the equal protection of the laws."481 This provision only applies to state and local governments. While no specific clause in the Constitution directly requires the federal government to guarantee equal protection of the law, such a mandate has been read into the Due Process Clause of the Fifth Amendment.482
The basic premise of equal protection is that people similarly situated should be treated the same.483 In legislative terms, this means that governmentally imposed rules and regulations that apply to specific groups (while excluding others) should be based on some socially acceptable criteria and, within the regulated group, should apply evenly to each of its members. The United States Supreme Court has established a three-tiered analytical model for reviewing statutes and regulations that allegedly violate this principle. Statutes that allocate legal benefits and burdens according to suspect classifications like race484 or national origin,485 or that affect fundamental rights like voting486 or interstate travel,487 are strictly scrutinized to determine if they are necessary to the attainment of some compelling federal or state interest. Other laws that make distinctions based on gender,488 illegitimacy,489 or alienage490 receive an intermediate level of scrutiny to ensure that they are substantially related to achieving important governmental objectives. Finally, in cases of economic or social regulation, the law will be upheld if it is rationally related to any conceivable, legitimate public goal.491
If some controls on explosive precursors were enacted into law, it is possible that one or more of the parties affected by that legislation might attempt to challenge it on equal protection grounds. For example, the possible restriction that retailers who supply ammonium nitrate for home use only be allowed to sell this product in bagged, nondetonable mixtures might lead to complaints that this unfairly singles out retail outfits, since it fails to cover other AN suppliers, like those that sell the chemical in bulk to commercial enterprises. Similarly, the
proposal of placing sales and distribution controls on some precursor chemicals, like ammonium nitrate, and not on others could lead the contention of the AN industry that it is being treated more harshly under the law than other chemical makers and sellers. Whatever the exact contours of these prospective challenges, it is clear that they will receive only scant scrutiny by the courts. Because none of the proposed regulations is premised on suspect or quasi-suspect classifications (like race, national origin, or gender), and they do not impair any fundamental rights (like voting), courts are unlikely to approach such laws with great distrust. Instead, they would only examine such regulations to ensure that they are not purely arbitrary.
In applying this lowest tier of scrutiny, courts are guided by a number of important principles. First, the burden is on the challenger to prove that the legislature's reason for the regulation is irrational, or that no legitimate government interest exists.492 If the statute or legislative history specifies the law's purpose, the court will review the actual justification provided;493 if no such explanation appears, the court must sustain the statute if the government is able to offer (or the court is able to imagine) any conceivable legitimating purpose.494 The government may implement a legitimate regulatory program step by step; it need not formulate a comprehensive plan to eradicate all of the ills attracting the government's concern.495 The regulation does not have to be minimally intrusive, nor does it have to be the most effective or efficient means of accomplishing the stated goal; it need only provide one plausible way (perhaps among many better ways) of accomplishing that end.496 In the words of the Supreme Court, "rational-basis review in equal protection analysis 'is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.'"497
Following these admonitions, courts routinely uphold the constitutionality of economic and safety regulations. For example, in Minnesota v. Clover Leaf Creamery Co.,498 the Minnesota legislature passed a law, for environmental reasons, prohibiting the sale of milk in plastic containers while permitting the usage of other nonreturnable containers made out of paperboard. Because banning plastic containers might foster greater use of other, environmentally friendly alternatives, the Supreme Court sustained the statute, even though it only partially ameliorated the environmental problem it sought to remedy.499 Likewise, in Michigan Meat Association v. Block,500 a federal court in Michigan upheld the Federal Meat Inspection Act, which restricted the sale of meat inspected only by state officials, because it furthered the government's safety objective of ensuring a wholesome food supply. And in National Paint & Coatings Association v. City of Chicago,501 the court approved an antigraffiti ordinance that banned the sale of spray paint in the city of Chicago. Rejecting the argument of a consortium of makers, wholesalers, and retailers of spray paints that graffiti vandals are undeterrable and can easily obtain the tools of their trade in outlying areas, the court recognized the city's conceivably legitimate justification that reducing the availability of spray paint may have a tendency to reduce its use.502
On rare occasions, such regulatory statutes may be held unconstitutional, but these cases typically involve an illegitimate governmental objective of protecting resident merchants at the expense of outsiders.503 For instance, in Starlight Sugar Inc. v. Soto,504 Puerto Rico's Department of Agriculture adopted a regulation, designed to protect its own failing refined sugar industry, that forbade the repackaging of refined sugar for industrial use in consumer-size packages and precluded the repackaging of other bulk shipments of refined sugar in bags greater than 5 pounds. The practical effect of the regulation, the court noted, was that local sugar producers could pack their product for direct sale to consumers while out-of-state suppliers could not.505 Finding the protection of local industry not to be a legitimate government interest, and seeing no other purpose for the regulation, the court opined that the law would likely be found unconstitutional under the equal protection clause.506
The upshot of all this is fairly clear. Provided Congress could offer legitimate reasoning for restricting the sale of an explosive material, or for requiring that it be sold only in an inerted form in the home use market, such regulations should pass the minimal equal protection scrutiny given to economic and social laws of this sort. There may be myriad reasons for instituting controls on explosive chemicals, but the most important justification is also the most obvious. As in the National Paint & Coatings Association case, where Chicago sought to deter graffiti taggers, the federal government in this instance would seek to deter criminals from acquiring a legal but potentially dangerous product and putting it to an illegal and socially destructive use. For purposes of equal protection analysis, it does not matter that these regulations may have little actual effect on the availability of ammonium nitrate, or that this chemical could be made more secure by regulating bulk shipments, or even that some terrorists might revert to other, less controlled substances. Because such controls would at least bear a rational relationship to the legitimate governmental objective of preventing illicit bombing attempts, it is highly unlikely that they would be struck down for violating the fundamental constitutional precept of equal protection.
5. Fairness: Substantive Due Process
Another fairness argument that might be raised in opposition to regulation of explosives or precursors is founded on the concept of substantive due process. Derived from the Fifth (as applied to the federal government) and Fourteenth (as applied to state governments) Amendments, the substantive due process guarantee essentially secures the individual's liberty interests.507 Under this provision, any statute or regulation that improperly interferes with a protected liberty interest might be found unconstitutional.
Liberty interests can be fundamental or not fundamental. Fundamental rights receive the greatest protection. To justify legislation that impairs a fundamental right, a government must show that the law is necessary to promote some compelling
state or federal objective.508 The only rights deemed fundamental by the Supreme Court are the freedom of association; voting rights; the right to interstate travel; the right to fair criminal justice procedures; the right to fairness in the handling of claims involving deprivations of life; liberty and property; and privacy rights (especially in the areas of sex, marriage, childbearing, and child rearing).509 On the other hand, if the right affected by the regulation is not fundamental, but is merely economic, courts will apply the same level of scrutiny to the law as is required for economic and social statutes under an equal protection analysis. Specifically, the court will ask only whether the law is directed toward some conceivable, legitimate objective, and whether its provisions are rationally related to that end.510 If so, the regulation must be upheld, even if it appears that there are much better ways of accomplishing the desired result.
In the explosives context, ammonium nitrate and precursor chemical makers and sellers might complain that inerting, sales, licensing, or record-keeping regulations would substantially impair their liberty interests by undermining their ability to make a living. Try as they might to characterize this interest as fundamental, these parties would almost certainly fail to convince a court that such regulatorily imposed business impediments are anything other than purely economic, and thus subject to the lowest level of scrutiny permitted by the Constitution. Under this perfunctory standard of review, any such regulatory programs should have no trouble withstanding a substantive due process challenge. As noted with regard to the equal protection analysis, the government has a legitimate interest in trying to deter or inhibit common criminals and sophisticated terrorists from acquiring potentially explosive products that might be used to injure or kill innocent people. Regulations that would restrict the retail sale of ammonium nitrate, extend existing explosives laws to intrastate transactions, and institute new protocols for the sale and distribution of certain precursor chemicals seem rationally calculated to at least place small roadblocks in the way of some prospective bombers, even if they do not come anywhere close to solving the terrorist bombing problem. If a court were to agree, as is likely, it would have no choice but to uphold the regulations as a valid exercise of the government's commerce power.
6. Fairness: The Takings Clause
The last fairness doctrine that might stand in the way of these regulations derives from the Takings Clause of the United States Constitution. This provision, which is contained in the Fifth Amendment, provides that "private property [shall not] be taken for public use, without just compensation."511 The principal purpose of the Takings Clause is "to bar some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."512 Invoking this reasoning, distributors required to inert bagged ammonium nitrate, or retailers restricted to selling only inerted (nondetonable) ammonium
nitrate mixtures, or dealers directed to initiate and maintain licensing and/or record-keeping programs may claim that such regulations "take" their property by reducing the viability or profitability of their enterprises. Accordingly, these merchants, and others similarly affected, may seek to enjoin these laws or seek compensation for the business losses they produce.
There are basically two types of takings: physical takings and regulatory takings. Physical takings compel an enterprise to suffer a physical invasion of its property.513 For example, in Loretto v. Teleprompter Manhattan CATV Corp.,514 the United States Supreme Court held that a New York law that required landlords to allow cable companies to install cable facilities in their apartment buildings effectively consummated a physical taking of the landlords' properties. Where a physical taking occurs, the government must pay fair compensation to the party suffering the impairment, even if the intrusion is minute and the public purpose for it compelling.515 Regulatory takings are less direct, and thus usually less intrusive; consequently, they are typically harder to prove. Generally, a regulatory taking occurs when a statutory provision interferes with a landowner's use of her property or with an economic enterprise's operation of its business affairs.516 Yet not just any kind of interference will do. The Takings Clause is violated only when the law in question does not substantially advance legitimate government interests or denies the regulated party an economically viable use of her resources.517
Although the Supreme Court has not developed any set test for evaluating regulatory takings, it has identified several considerations important to this endeavor. Specifically, a court will examine the character of the government action, its economic impact, and its interference with reasonable investment-backed expectations.518 Relying on these and other factors, courts have been reluctant to strike down legislation, or require the government to pay compensation, simply because a particular law made it harder for the regulated party to carry on its enterprise. For example, in United States v. Central Eureka Mining Co.,519 the Supreme Court upheld a government order directing nonessential gold mines to cease operations during wartime. And in Andrus v. Allard, 520 the Court found that regulations that prohibited the sale of eagle feathers did not unjustly infringe the property rights of bird artifact traders. In reaching its conclusion, the Court ominously interjected that "loss of future profits—unaccompanied by any physical property restriction—provides a slender reed upon which to rest a takings claim."521
From this overview, it seems unlikely that a Taking Clause attack upon any of these regulations would have much of a chance of success. Granted, allowing retail outlets to sell only inerted ammonium nitrate might inhibit their gross sales, but it is extremely doubtful that it would hamper the viability of such businesses. Moreover, while licensing, record keeping, background checking, and other sales restrictions may add time and expense to the business of selling explosives or precursor chemicals, these burdens probably will not drain the financial lifeblood
from such enterprises. The existence, perhaps even overabundance, of gun and explosives dealers is sufficient testament to this fact. Hypothetical regulations that would require manufacturers or distributors to install new equipment to separately produce explosive-grade and agricultural-grade ammonium nitrate or to add inerting agents to ammonium nitrate fertilizers designated for retail sale, might be slightly more troublesome. Should the government directly perform or oversee the installation, or even if it should authorize others to do the same, the intrusion might come closer to the kind of physical taking found in Loretto (the cable installation case). Short of working such a direct interference, however, any government regulation that merely tells a maker or seller what it can or cannot do with some of its resources is not likely to transgress the Takings Clause, even if the regulation involves a substantial restriction on the sale of a product, as in Andrus (prohibition on selling eagle feathers). The bottom line is that a takings claim in this context is conceivable, but its prospects for being sustained are less than promising.
C. The Relationship Between the Regulatory and Tort Systems
Regardless of the specific type of regulatory framework the government may adopt, it still must consider the relationship that that system will have with the tort system. After all, the tort system provides an additional, albeit post hoc, form of regulation. That is, it inhibits the activities of an enterprise by requiring that it either change its products or practices, or pay a significant liability "tax" for the injuries its inflicts on the public. The question, from a political standpoint, is whether the enterprise should be made to bear only the ex ante expense of regulatory compliance, only the ex post expense of tort liability, some combination of the two, or no social costs at all.
To choose the appropriate balance, Congress generally must weigh several factors, including the social value of the products, services, and industries subject to regulation; the efficacy of the proposed regulatory system in accomplishing the desired safety objectives; whether the tort system would serve as a necessary, additional deterrent to unsafe manufacturing, transportation, storage, or sales practices; whether and to what extent a combined system will inhibit the manufacturer's ability to engage in further research and development and/or to offer the product at a reasonable price; the availability of insurance or other funds necessary to extinguish the victims' losses; and the desirability of having a uniform federal system that predominates over or supersedes the several states' interests in policing the health, safety, and welfare of their citizens.
Ultimately, the relative strength and alignment of these factors will influence the alternative to be selected. For example, where the regulated activity is socially desirable, the applicable regulations are strict, the costs of regulatory compliance are substantial, and the deterrent value of tort liability is insignificant or unpredictable, agency controls, in and of themselves, may provide the optimal
solution to the stated problem. Where, however, the risk to public safety is great, there are (or are likely to be) few or no government regulations, any regulations that do exist (or are likely to be adopted) are lax or easily avoided, the regulated industry makes little or no effort to voluntarily reduce the risks of its enterprise, and the threat of liability is likely to lead to the discovery and implementation of feasible and effective safety measures. Applying the tort system to industry members may have a positive effect.
If Congress does embrace some form of explosives regulation, it still remains to be seen what role, if any, the tort system will play in the fight against bomb blast terrorism. Obviously, the options in this context present a broad spectrum of opportunity. Additional regulations may have little or no effect on the availability of tort liability, they may completely foreclose the possibility of such recovery, or they may influence but not control the availability of damages. Each of these alternatives will be considered below.
1. Regulatory Compliance Issues Within the Tort System
a. Minimum Safety Standards
If Congress makes no attempt, either expressly or implicitly, to insulate its regulatees from tort liability, then the tort system will coexist alongside any applicable legislative enactment as a means of influencing the behavior of those in the explosives and related industries. This means that even an enterprise seemingly obedient to its regulatory duties may be hauled into court and asked to pay damages to an aggrieved victim. In such circumstances, courts often view the regulations as merely establishing minimum thresholds of safety.522 When this is the case, compliance with the regulatory mandate will not exonerate the defendant, but will only provide some evidence that her conduct was not negligent.523 If the plaintiff is able to override such proof, the defendant may be found liable even though she did exactly as specified by the federal government. Here, there are two levels of regulation: one low standard set by the regulatory agency, and 50 higher tort standards imposed by the state courts.
b. Dispositive Safety Standards
This two-tiered approach is not set in stone, however. Under the right circumstances, tort law provides its own doctrinal protections to "good" defendants who display fidelity to their regulatory commitments. Where such defenses or immunities apply, there is only one dispositive standard of care and thus only one level of regulation: that supplied by the government ex ante. Ex post tort regulation drops out of the picture.
i. Regulatory Compliance
As discussed above, compliance with federal regulations is sometimes treated as conclusive proof of the defendant's exercise of due care.524 Typically, the more intensive the government regulation (in terms of both the number and the onerousness of the imposed requirements), the more influence it will have in (or on) a tort case. For instance, the Food and Drug Administration's (FDA's) detailed labeling requirements and thorough premarket approval decisions often are accorded great deference by the courts.525 This is because the FDA does not passively rubber stamp the conclusions of its regulatees; it actively conducts its own cost-benefit analyses and even, at times, establishes design specifications for the products under its jurisdiction. Should the federal government get into the business of actively regulating explosive materials or precursors like ammonium nitrate, especially by conducting studies on the safety and efficacy of certain antiterrorist technologies or by specifying design characteristics for such products (e.g., by prescribing inerting ratios for ammonium nitrate), these ambitious directives may establish an exclusive behavioral standard that is determinative of the liabilities of those they are intended to govern.
ii. Government Contractor Defense
Another doctrine that may provide immunity for dutiful explosives makers or sellers is known as the government contractor defense. The government contractor defense works like this: if the defendant, under contract with the United States government, makes a product that conforms to design specifications provided by the government, and the product winds up injuring some third party, the defendant enjoys complete immunity from tort liability. The primary purpose of the defense is to prevent the contractor from being held liable when the government is actually at fault.526 Yet it was intended to serve some important subsidiary goals as well. For one thing, it prevents the judiciary from second-guessing the government's public policy decisions.527 Perhaps even more significantly, it ensures that talented contractors will not be discouraged from offering their valuable services to the government; that they will not cut corners on the products they do agree to make; and that they do not charge the government, and thus the American taxpayer, an exorbitant price for their services.528
The leading government contractor case is Boyle v. United Technologies Corp.529 In Boyle, the United States Supreme Court articulated a three-part test for satisfying the government contractor defense. Under the Boyle test, liability cannot be imposed against the government contractor when "(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States."530 In essence, the defense relieves the contractor of responsibility for
design flaws; it does not protect her against manufacturing defects, nor does it relieve her of the duty to provide the government with adequate warnings concerning the product's known or knowable dangers. Even for alleged design deficiencies, immunity is not guaranteed. When the government merely establishes minimal or very general design requirements, or worse, if a government employee simply signs the approval line on the contractor's working drawings, the government contractor defense will not apply.531 To satisfy the Boyle requirement that the government approve reasonably precise specifications, the contractor must prove that the design feature in question was actually considered by a government officer.532
There is some question whether the defense can be invoked only by military contractors, or if it applies as well to manufacturers of commercial products and products intended for civilian use. Although Boyle involved a military procurement contract, the Court did not explicitly limit the defense to military products.533
Since Boyle was decided, and even before, courts have split in their interpretation of the defense's proper scope. Some jurisdictions have held that the government contractor defense is only available to manufacturers of military products.534 Other courts have found that the defense applies to all manufacturers.535 For example, in the pre-Boyle case of Burgess v. Colorado Serum Co.,536 the manufacturer of an animal vaccine that strictly conformed to specifications set by the United States Department of Agriculture (USDA), was allowed to invoke the defense after a veterinarian accidentally injected the drug into his finger. In rejecting the plaintiff's claim that the product's packaging failed to mention that the vaccine posed a danger to humans, the court noted that the USDA specified the exact language that was to appear on the label and that the drug maker scrupulously complied with the USDA's requirements.537 Under these circumstances, the court opined, "it would be illogical to limit the availability of the defense solely to 'military' contractors. If a contractor has acted in the sovereign's stead and can prove the elements of the defense, then he should not be denied the extension of sovereign immunity that is the government contractor defense."538 A similar conclusion was reached in the post-Boyle case of Carley v. Wheeled Coach.539 There, the government contractor defense was successfully employed by an ambulance manufacturer, which constructed the vehicle in accordance with specifications provided by the United States General Services Administration. The ambulance had overturned en route to the scene of an emergency. In granting the manufacturer's defense, the court maintained that "[i]t is the exercise of discretion by the government in approving a product design, and not whether the product was military or nonmilitary in nature, which determines whether the government contractor defense is appropriate."540 The court allowed the defense in this case, fearful that a finding of liability would violate the government's statutory autonomy to select emergency vehicles without threat of contradiction.541
Given this state of affairs, it is possible that the government contractor defense could show up in any civil litigation arising out of an illegal bombing incident. If the government were to require that all ammonium nitrate contain a specific kind of taggant, or if it provided detailed specifications for inerting ammonium nitrate, those subject to these demands, namely makers and sellers of AN, might contend that they should enjoy the same immunity as the government itself. In essence, the government would enlist these enterprises to serve as its agents in the covert battle against domestic terrorism. Since any failing in the regulated products (causing harm or failing to prevent harm to others) would be attributable to design characteristics established by the government, it would seem unfair to hold these captive makers financially accountable for their untoward effects. And, to the extent that the technologies required by the government appear to promote an important if not compelling social interest (i.e., curbing terrorist bombing attempts), it would seem unwise to force enterprises producing these products to carry such a heavy liability burden that they must either discontinue operations or drastically raise the price of their goods. If the Boyle case fits this situation as well as it appears, it will not be surprising to see some courts attempt to try it.
iii. Contract Specification Defense
Perhaps an even better fit to the circumstances of explosives regulation is the contract specification defense. This defense shields ''independent contractors, government or otherwise, from liability sounding in negligence for injuries caused by a product whose specifications were established by another and which were not obviously defective to an ordinary contractor."542 The contract specification and government contractor defenses are similar in all material respects except two. First, unlike the government contractor defense, the contract specification doctrine has never been limited to military products; it may be invoked by any party asked to subordinate her creativity to plans or designs of somebody else.543 Second, the contract specification defense does not necessarily rely on considerations of fairness and public policy, which are central to the government contractor defense (specifically, the concern over infringing the government's discretionary policy-setting authority).544 While the first difference definitely favors defendants—in that it expands the applicability of the defense—the second may or may not be advantageous to a complying contractor, depending on who is providing the specifications. If the government designs the product, a court probably would be wary of stepping on the government's discretionary toes regardless of which defense it is asked to endorse. In any event, the contract specification defense appears to be a viable means by which fertilizer and explosives manufacturers who are required to customize their goods to government standards may find refuge from tort liability.
c. Federal Tort Claims Act Immunity
Manufacturers and sellers are not the only ones who may be immune from liability when government regulations are called into question. The government itself, or any governmental agencies acting on its behalf, may also be beyond the reach of the tort system. As discussed in the constitutional tort section, the Federal Tort Claims Act (FTCA) eliminates the sovereign immunity of the United States government, but preserves a few important areas where the government still enjoys absolute protection from liability. The exception that covers discretionary functions is by far the most noteworthy. Under this exception, any time the government, or one of its employees, makes a decision or exercises a choice that sets or carries out a governmental policy, both the government and its agent are shielded from liability.545 This protection extends to regulations that determine how some (often dangerous) products are to be made, marketed, handled, or stored.
Ironically, the first case to seriously address the breadth of this immunity involved a catastrophic explosion of ammonium nitrate fertilizer. In Dalehite v. United States,546 a ship loaded with ammonium nitrate fertilizer exploded while docked at a Texas harbor, killing a number of bystanders. The fertilizer had been produced and distributed under the direction of the United States government. After the victims and their families brought suit, the federal government asserted immunity in accordance with the discretionary function exception of the FTCA. The United States Supreme Court held that the alleged negligent acts of the government—in failing to determine the fertilizer's explosiveness, in carelessly manufacturing and shipping the fertilizer, and in failing to properly monitor the storage and loading of the fertilizer—were discretionary in nature and thus within the protective ambit of the exception. "Discretion," observed the Court, includes the decisions of "the executive or the administrator to act according to one's judgment of the best course."547 This includes "more than the initiation of programs and activities.''548 As the Court noted, it also includes "determinations made by executives or administrators in establishing plans, specifications or schedules of operations."549
Relying upon this broad definition of discretion, the court in Tindall v. United States550 dismissed a lawsuit challenging the ATF's manner of distributing an explosive device that unexpectedly detonated in the plaintiff's hand. In Tindall, the ATF confiscated several explosive devices and, according to its statutory authority, elected to pass them along to the Department of Agriculture, which in turn gave them to the Mississippi Wildlife Department, which, through one of its game wardens, handed one of the devices over to the plaintiff. The plaintiff sued the federal government, arguing that the ATF negligently failed to provide warnings about the content or explosive qualities of the devices it distributed. Rebuffing the plaintiff's claim that the government enjoys no immunity when it creates foreseeable hazards, the court retorted that "[i]f the nature and quality of the
activity necessitated a judgment-call by the government employee, then his acts must be deemed discretionary whether or not the course of action chosen creates a hazard."551 Turning specifically to the ATF's failure to provide a warning, the court concluded that "the decision not to issue warnings on the explosive device in question was within the discretionary function of the ATF Bureau."552
It follows from these cases that if the government were to implement one or more of the committee's recommendations—say, by requiring the inerting of bagged ammonium nitrate, for example, by instituting background checks for intrastate explosives sales transactions, or even by adopting one of the detection tracer systems mentioned earlier—the choices made may find shelter within the discretionary function exception of the FTCA. In each case, both the decision to initiate (or not to initiate) such programs, and the multitude of decisions as to how to design and operate them, require the authorized agencies or officials "to act according to their judgment of the best course." Even if one of these decisions should prove ill-considered and injurious to others later on, the victims would have no recourse against the government in a tort action. Unless such policy directives are mistakenly or carelessly carried out or administered, the doctrine of sovereign immunity would protect the United States and its implementing agencies from any and all liability. As one-sided as this result may seem, it is necessary both to ensure the government's autonomy as a policy-making body, and to preserve the fundamental democratic concept of separation of powers.
2. Federal Preemption Revisited
Of course, if Congress really desires to insulate explosives and precursor chemical makers from tort liability it need not sit around and hope that a court will apply one of the doctrines mentioned above. It can write such protection directly into a regulatory statute, or it can regulate so heavily in the explosives area that there is no room left for contrary state tort decisions. The process of creating uniform regulatory standards, and supplanting competing state law, is known as federal preemption. The Constitution says that laws enacted by the federal government are to have supremacy over conflicting state law.553 As noted above in this discussion, a federally created program designed to regulate intrastate explosives transactions would, if so intended by Congress, effectively preclude state legislatures and their agencies from enacting or passing their own laws and regulations covering the same transactions. But this is not all. Such a federal initiative could also prevent state courts from entertaining lawsuits that indirectly challenge the behavioral or product standards fixed by the United States government in its regulatory scheme.554 For example, if Congress implemented a background checking system that failed to uncover the prior criminal record of an intrastate explosives purchaser who later used her acquisition for deadly ends, any tort suit questioning the reasonableness of the system would be barred under the preemption doctrine. Just like a positive law enactment, a judicially
devised common law precedent that condemned the program would represent the kind of post hoc, episodic regulatory edict that threatens the sovereignty of the federal government and the founding document that brought it into being.
The government's control over a product may be total or partial. If the regulation determines how the product is to be constructed, designed, and marketed, no room is left for contrary state tort actions that seek to condemn the product as unsafe. On the other hand, if the regulation only controls one aspect of the product—say, its warnings—a state would be free to challenge the product's other aspects (like its design) in a tort case. Both the Cigarette Labeling Act555 and the Federal Insecticide, Fungicide and Rodenticide Act556 establish such a partial preemption scheme. If Congress intends to preempt state law, it typically will include an express preemption clause in the regulatory statute. This clause merely confirms that the federal government has decided to displace state law in a particular area. Where such an intent is manifested, the manufacturer faces only one tier of regulation—that provided by the federal government. Once the regulated party satisfies Congress's standards, it may not be further regulated by the states.
It is worth noting that the tort system is not just a mechanism of public regulation; it is also the primary form of compensation for those who sustain serious injuries from defective products and dangerous activities. While the preemption approach discussed above attempts to accommodate the regulatory interests of the state and federal governments, it makes no provision for the economic welfare of the victims of exempt products or services. Thus, if a person is injured by an enterprise exclusively regulated by the federal government, and if she owns no insurance to cover such accidents, she may be without any form of financial relief. This may be a relevant consideration in Congress's selection of a regulatory or compensatory scheme.
3. Regulation/Compensation Statutes
Some types of regulatory statutes seek to better protect the victims of catastrophic product-induced injuries. For example, the National Childhood Vaccine Injury Act of 1986557 allows those adversely affected by vaccines either to file an administrative claim for relief (with only proof of causation) or to institute a common law tort action (and bear a more onerous burden of proof). The Black Lung Act558 also creates a compensation system that greatly expedites the payment of injury claims associated with mining activities. Under other acts, like the Swine Flu Act,559 the federal government expressly agrees to assume all liability flowing from a regulated product. There are many other possible alternatives. One or more of these options may seem appropriate in the explosives context. The point is that Congress, in developing a scheme of regulations, may need to specify not only how explosives are to be made, distributed, stored, and sold, but also how the victims of explosive blasts are to be compensated for their injuries.
V. SUMMARY AND CONCLUSIONS
Because so many of the technologies discussed in the main text of this report are purely theoretical and/or untested, it is difficult to determine exactly how they will work, what harm, if any, they may cause to others, and what their costs will be. This uncertainty, in turn, makes it exceedingly difficult to predict with much confidence just how courts, agencies, and legislatures may react to the products, equipment, protocols, or regulations that may be necessary to reduce the number of deadly bombing incidents. A few cautious observations may be offered, however.
Depending on the configuration of the system in question, detection tracer technologies may effect "searches" of persons or property that inevitably will subject them to close constitutional scrutiny. Nevertheless, as long as such detection programs are instituted and operated reasonably, so as to minimize their intrusiveness, they probably would be upheld as necessary to further the important government interest of combating domestic terrorism. In the civil liability arena, there is little doubt that detection technologies theoretically may violate a host of personal interests, and that these injuries, in turn, may precipitate a number of lawsuits asserting a veritable cornucopia of legal theories. However, because these technologies do not appear to present serious safety or privacy concerns (at least in their operational form), and since the injuries in such cases typically will be proximately caused by superseding criminal actions, the liability costs associated with these detection systems are not likely to be substantial.
Although identification tags do not pose constitutional search problems, there is some doubt about whether they may be used by law enforcement in the prosecution of bombing suspects. Like detection taggants, most identification taggants (with the possible exception of the 3M-type particulate tag currently in use in Switzerland) do not appear to have undergone the testing and scientific review necessary to admit them, or the expert testimony they permit, into evidence. Yet while identification tags may face some rather strong resistance from within the criminal justice system, things look a little brighter on the civil side of the ledger. Because identification tags do not operate directly on persons or things, these tracers should not be quite as susceptible to litigation as their detection-based counterparts. And of the suits that may be brought, the policy and causation problems that likely will hamper the detection taggant actions should plague the identification tag lawsuits as well.
Similar obstacles await tort claims arising out of the use of inerting agents, since such materials generally present almost no extra risk and may lead to injury only if they are consciously countermeasured by determined criminals. However, liability may attach to sellers of both inerted and uninerted explosives who entrust such dangerous instrumentalities to foreseeably incompetent or malicious persons; and this responsibility can only be enhanced by regulations that require further screening of purchasers or otherwise restrict the sale of these goods.
Likewise, controls on the dissemination of precursor chemicals should serve to tighten the legal obligations of dealers up and down the chain of distribution. Of course, none of these possible laws will alter the legal landscape unless they are able to pass constitutional muster. While there may be some concern over Congress's authority to regulate intrastate transactions involving explosives or related products, the government appears to have a good chance of sustaining such laws under its Commerce Clause powers. Other constitutional challenges seem even less compelling, especially in view of the apparently rational nexus between explosives controls and the important social interest of deterring criminal bombing attempts.
Ultimately, should such laws be enacted, Congress will have to consider how this regulatory scheme will interplay with the less direct, though equally burdensome, demands of the state-run tort system. The choices here will run from preempting the entire field of explosives regulation to remaining an amiable, but competitive, partner with the states in the battle against terrorism. In selecting from among these alternatives, the federal government may both clarify this uncertain relationship and determine its course into the 21st century.