In Re Antrobus

ORDER

This is an original proceeding in the nature of mandamus under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771(d)(3). Sue and Ken Antrobus, the parents of Vanessa Quinn, request that Ms. Quinn be recognized as a victim of Mackenzie Glade Hunter’s crime of transferring a handgun to a juvenile in violation of 18 U.S.C. § 922(x)(1). Mr. Hunter is scheduled to be sentenced on Monday, January 14, 2008.

*1124I

On February 12, 2007, Sulejman Talovic murdered five people, including Ms. Quinn, and injured four others at the Trolley Square Shopping Center in Salt Lake City, Utah. One of the guns Talovic used in his rampage was a handgun that he had purchased from Mr. Hunter in the summer of 2006, when Talovic was a “juvenile” as defined in § 922(x). Talovic was killed on the scene.

Mr. Hunter pleaded guilty to two charges. Only one count, that of transferring a handgun to a juvenile, is relevant to this action. After the plea hearing, the Antrobuses sought to have Ms. Quinn declared a victim of Mr. Hunter’s crime so that they, on her behalf, could assert certain rights provided by the CVRA. See 18 U.S.C. § 3771(a)(4) (establishing “[t]he right to be reasonably heard” at the sentencing); id. § 3771(d)(6) (establishing “[t]he right to full and timely restitution as provided in law”). The district court denied the motion. United States v. Hunter, No. 2:07CR307DAK, 2008 WL 53125 (D.Utah Jan. 3, 2008). In doing so, it proceeded on the basis that the handgun sold by Mr. Hunter killed Ms. Quinn, id. at *1, though Mr. Hunter asserts before us that this fact is not discernible from the record of this case. The district court also indicated that other allegations were unsupported, particularly whether Talovic remarked to Mr. Hunter or in Mr. Hunter’s hearing that he intended to commit a bank robbery, but stated that its ruling would not change even assuming such facts. Id. at *4.

As permitted by the CVRA, 18 U.S.C. § 3771(d)(3), the Antrobuses filed a petition for a writ of mandamus seeking review of the district court’s decision. Pursuant to this court’s order, Mr. Hunter filed a response.

II

Standard of Review

The Supreme Court has made it clear that mandamus is a “drastic” remedy that is “to be invoked only in extraordinary situations.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) (per curiam). “[T]he writ of mandamus has traditionally been used in the federal courts only to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Id. at 35 (quotations omitted). Petitioners must show that their right to the writ is “clear and indisputable.” Id. (quotations omitted).

The Antrobuses argue that, even though the CVRA provides for mandamus review, this court should apply those standards that would apply on normal appellate review. See In re W.R. Huff Asset Mgmt. Co., LLC, 409 F.3d 555, 562-63 (2d Cir. 2005); Kenna v. U.S. Dist. Ct., 435 F.3d 1011, 1017 (9th Cir.2006). We respectfully disagree, however, with the decisions of our sister circuit courts.

Congress could have drafted the CVRA to provide for “immediate appellate review” or “interlocutory appellate review,” something it has done many times. Instead, it authorized and made use of the term “mandamus.”

[Wjhere Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed.

Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 96 L.Ed. 288 (1952). *1125Mandamus is the subject of longstanding judicial precedent. “We assume that Congress knows the law and legislates in light of federal court precedent.” Bd. of County Comm’rs v. U.S. E.E.O.C., 405 F.3d 840, 845 (10th Cir.2005). Applying the plain language of the statute, we review this CYRA matter under traditional mandamus standards.

Analysis

The CVRA defines a “crime victim” as “a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia.” 18 U.S.C. § 3771(e). While acknowledging that Ms. Quinn undeniably was a crime victim, the district court held that she was not a victim of the particular crime to which Mr. Hunter pleaded guilty because Mr. Hunter’s offense and Talovic’s rampage were “too factually and temporally attenuated.” Hunter, 2008 WL 53125, at *4. Following the rationale of United States v. Sharp, 463 F.Supp.2d 556 (E.D.Va.2006), the district court determined that Talovic’s actions were an “independent, intervening cause” of Ms. Quinn’s death. Id. at *5.

This is a difficult case, but we cannot say that the district court was clearly wrong in its conclusion. The only court that has decided an analogous case under the CVRA held that the movant was not a “crime victim” under that statute. See Sharp, 463 F.Supp.2d 556. Based on its factual finding that Mr. Hunter was unaware of Talovic’s intentions for the firearm,1 to find for the Antrobuses we would have to determine that selling a gun to a minor is the proximate cause of any resulting injury to third persons. This area of the law, however, is not well-developed and is evolving. While authority is mixed in the common law context, some courts have held as a matter of law that proximate cause does not exist between a sale of a firearm to a person statutorily disqualified from making the purchase and later injuries to a third person through use of the firearm. See, e.g., Robinson v. Howard Bros. of Jackson, Inc., 372 So.2d 1074, 1076 (Miss.1979). Others have held that proximate cause can be found in some such circumstances but may not (as would be required here) be found on a per se basis. See, e.g., Olson v. Ratzel, 89 Wis.2d 227, 278 N.W.2d 238, 250, 249-51 (1979); Phillips v. Roy, 431 So.2d 849, 853 (La.Ct.App. 1983). Such questions have not yet been decided in this jurisdiction. Finally, at most the statute Mr. Hunter violated indicates the foreseeability of the foolish (or, sadly, as here, worse) use of firearms by juveniles. But such foreseeability does not obviously extend to an individual who employs a gun only after becoming an adult as a matter of law. And here, the Antrobuses have not shown that Talovic was still a juvenile when he committed the murders more than seven months after purchasing the handgun from Mr. Hunter. See 18 U.S.C. § 922(x)(5) (defining juvenile as a “person who is less than 18 years of age”). *1126In light of these circumstances, we cannot say that the Antrobuses’ right to the writ is “clear and indisputable.” Allied Chem. Corp., 449 U.S. at 35, 101 S.Ct. 188 (quotations omitted).

Ill

The Antrobuses’ motion to proceed in forma pauperis is GRANTED. Their Motion to Strike Anticipated Defense Objection to Petition for Writ of Mandamus and Renewed Motion to Strike Defense Objection are DENIED. Their alternative motion for leave to supplement the record is GRANTED and their proffered exhibit is accepted for filing under seal. Their alternative motion for order directing the government to supplement the record is DENIED. Mr. Hunter’s motion to unseal the portions of his presentence report that were submitted as Exhibit D to his response is GRANTED. The petition for a writ of mandamus is DENIED.