Gunmaker Liability Shield May — and Should — Become Law
Congress is moving closer to pre-empting state and local law by protecting gun manufacturers from liability for guns used in crimes:
The bill [PDF - 5 pages] would prohibit lawsuits against the firearms industry for damages resulting form the unlawful use of a firearm or ammunition. [Senator Larry Craig, R-Idaho], a member of the NRA’s board of directors, said such lawsuits are “predatory and aimed at bankrupting the firearms industry.” Such lawsuits unfairly blame dealers and manufacturers for the crimes of gun users, he added.Gun makers and dealers still would be subject to product liability, negligence or breach of contract suits under the bill, Craig said.
This is entirely proper. It is a fundamental rule of tort law that liability requires proximate causation (i.e., the defendant must be sufficient close to the chain of events to be held liable for his actions). And it is a fundamental rule of proximate causation that criminal acts by third parties are never foreseeable — they break the chain of proximate causation. You simply cannot, with very few exceptions, sue an innocent law-abiding person for what a criminal does later. There is no obvious reason to exempt firearms from this longstanding rule of tort law.
There is a counterargument that, since guns could be designed today with safeguards such as trigger locks, palmprint sensors or similar features, gun manufacturers should be liable for not making those “safer” guns. But it has never been a doctrine of product liability law (which gun liability is) that the (potential) existence of a “reasonable alternative design” makes the current design “defective.” See Restatement of the Law, Third, Torts: Products Liability, Section 2(b) (summary here):
A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design … and the omission of the alternative design renders the product not reasonably safe.
That is clearly not the case with handguns — having additional safety features might be a good (and cost-effective) idea, but that does not render traditional firearms “unreasonably unsafe.” Perhaps someday all guns will have such safety features, but that does not mean that gun manufacturers should be held liable today for firearms that have, so far, always been deemed reasonably designed.
As for the pre-emption question (i.e., federalizing the liability shield), yes it would be nice if state and local governments could figure this out for themselves, but if they can’t, then unfortunately federal intervention is warranted. These local gun liability laws are not meant to deter the use of guns in their jurisdictions, but rather to shakedown the industry, probably into bankruptcy.
Any weapon, indeed almost any object, can be used to commit a crime. Manufacturers have always been held to traditional notions of product liability, and gun makers will be no different, even under this bill. The legislation merely preserves traditional and sound tort principles from greedy local politicians and trial attorneys who see a politically disfavored (in some jurisdictions at least) cash cow ripe for the milking.
Congress should immediately pass the Protection of Lawful Commerce in Arms Act and the president should sign it into law. Unjustified lawsuits should not be allowed to kill yet another American industry, especially one that has done no wrong.
Other thoughts at Overlawyered, Hit & Run. See also today’s OpinionJournal.
UPDATE #1: The New York Times dissents –
Although the firearms industry argues that it should not be held liable for the criminal acts of those who buy or steal guns, all too often the dealers, distributors or manufacturers contribute to the problem by failing to safeguard their inventories or police their own sales responsibly. The victims of their negligence deserve the right to sue.
The Times is good — they can sneak both a straw man and a bait-and-switch into just two sentences.
The proposed liability immunity is not a special privilege for a favored industry; it is merely a codification of longstanding case law principles in product liability. It actually ensures that the industry is not treated specially (i.e., targeted for “special” frivolous lawsuits).
If there are victims of negligence who suffer damages because any link in the distributive chain fails “to safeguard their inventories or police their own sales responsibly,” then those victims will still be able to sue. The bill does not revoke the law of negligence. It merely reinforces traditional (and correct) proximate causation requirements.
UPDATE #2: Reason dissents. The piece is misguided in that it falls into the trap of worshipping the false god of “federalism.” State “sovereignty” does not include the power to force defendants to endure frivolous lawsuits or to be derelict in their “sovereign” duty to enforce basic tort principles. If the states abdicate this “sovereign” responsibility, then they have no business complaining when Congress picks up the slack.
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Hey! Kip.
Naturally, I tend to disagree- but not much.
Only on your analysis of what traditional rules of tort and criminal law demand, as applied to this interesting situation, probably not envisioned by our Illustrious Forebears (whoever they might be).
You write that "criminal acts are never foreseeable" and that they always break the chain of proximate causation. This is amazing to me; I never realized that if I, for example, left a gun, unlocked and loaded, sitting on the bar of the tavern I owned, where drunks and/or criminals might see it and (through drunkenness or criminality) decide to pick it up and- harm befall some innocent, that I would be held harmless. After all, recklessly/intentionally discharging a firearm where somebody could be hit by it is a _crime_, and I couldn't possibly foresee that, could I? What's that? I could, under the circumstances?
But, that contradicts your thesis. Sometimes criminal acts are in fact foreseeable. Not desirable, but foreseeable. Sometimes everyone concerned will understand and assume the risks: bungee jumping and paintball can involve battery (unwanted harmful contacts, via my paintballs and your unprotected rear), but short of extreme harm plus intent, almost nobody successfully sues – and almost never collects from the paintball/bungee provider, who wisely gets a signature indicating knowing A/R from the over-18 participant.
Guns aren't quite the same; no sale of a bungee cord will ordinarily be foreseeably facilitating crime. Gun shows, on the other hand, especially when sales are to straw purchasers (in bulk, of guns with numbers filed off, of snub-nosed or sawed-off or otherwise modified guns whose purpose is not, shall we say, precision target shooting nor hunting deer with laser-sights at night), does in fact foreseeably funnel guns to the people who need it most: criminals. At least, based on what they're willing to pay. And cops, if history is anything to go by, desperately want and need to be outgunned on the streets. Ideally with armor-piercing bullets, or at least those fun rounds that fragment on impact.
So: federal law should, of course, preempt all local law, since locals don't know what they're doing when they long-arm negligent gun manufacturers in the stream of commerce into their state fora.
But… wouldn't it be better to just curtail long arm statutes, say using the commerce clause, rather than to make it impossible for a state to sue an _in-state_ manufacturer whose negligence has allowed many guns – not to fall, but to be _directed_ – into the hands of criminals?
That's where you and I part company. I suspect you see guns primarily as tools of self-defense, home-defense, and legitimate target or sport or food hunting. I see guns as they exist near me: as tools for accidental self- or other-maiming, as tools for spousal or acquaintance murder, as tools for facilitating crime, and as extremely attractive nuisances. I don't mind people _having_ guns to protect themselves. But somewhere between collector, enthusiast, and nut there's a point that's beyond my comfort zone. I don't like it when kids, particularly criminally-inclined kids, can buy and use guns so easily that it's unsafe to attend public schools (or private schools, or…).
So: I suspect we're not talking about the same thing, and that we both see the other's concern as a legitimate problem best addressed… somehow or other, but not by the way the other favors.
And yes, I'm one of those annoying twits who doesn't really buy all the various re-revisionist and anti-revisionist scholarship on the 2A; frankly, I don't even care what it used to mean anymore, the Constitution As Interpreted is messy enough as is without requiring every able-bodied freedman or landowner to stock a musket in his home.
The so-called "gun show loophole" involves third-party sales of pre-owned guns. Gun manufacturers have no control whatsoever over who the people who buy their products subsequently sell them to.
Likewise with sales to minors…gun manufacturers sell through licensed dealers, which do not sell to minors. If a legal buyer resells a gun to a minor after he buys it, that's a crime…but the manufacturer has nothing to do with it.
Nor do they saw off their own barrels or file off serial numbers. Those things do happen, but they happen after the product is long since beyond the control of the manufacturer.
Try again.
(Of course, if a gun manufacturer ever DID do any of those things you blame them for, they could easily be hauled into court for it, with or without tort reform. They're all felonies.)
"I personally dislike the products of this industry, therefore we must continue exposing them to legalized extortion" is not a valid argument.
"I never realized that if I, for example, left a gun, unlocked and loaded, sitting on the bar of the tavern I owned, where drunks and/or criminals might see it and (through drunkenness or criminality) decide to pick it up and- harm befall some innocent, that I would be held harmless."
I specifically said:
Your hypothetical, the "attractive nuisance," is one of those exceptions and completely irrelevant to my thesis and to the proposed legislation.
I apologize for writing a blogpost and not a hornbook.
So, would this bill prohibit Runaway Jury (the movie) style lawsuits? In the movie, they argued that the fictional gun manufacturer had advertised features such as a gun that doesn't leave fingerprints that presumably only a criminal would be interested in.
I don't remember the movie that well — I only remember turning it off about halfway through because it was so stupid.