Making Social Policy through Courts: Gun Control Advocates Fight Firearms
Feldman, Danielle, Defense Counsel Journal
Suits against firearms manufacturers distort the roles of legislatures and courts, threaten lawful industries, and ignore personal responsibility
TORT SUITS against firearms companies for non-defective products allow contingency fee attorneys, improperly using the power of the judiciary, to legislate firearms prohibitions and thus circumvent Congress and state legislatures. These tort suits usually emerge as the aftermath of a shooting and generally involve a manufacturer of a perfectly designed legal product, someone who fired the trigger and a victim. Instead suing the assailant, the actions are brought against gun manufacturers for creating a non-defective product.
All this not only confuses tort theory but also harms a perfectly legal industry. This litigation distorts the legal theory behind tort liability, promotes erroneous presumptions about gun manufacturers, draws unfair parallels between the harms of firearms and tobacco, causes negative economic repercussions on the market, misconstrues the role of the judiciary, and displaces individual responsibility for crime.
CONCEPTUALLY WEAK TORT CASES
Tort actions against firearms manufacturers for non-defective products usually involve a few main elements: a manufacturer, an assailant, a victim, and sometimes a retailer. Plaintiffs' attorneys assume that the manufacturers are negligent because they produced a non-defective product that caused harm. Plaintiffs' attorneys also ignore an assailant's responsibility and sue manufacturers, who are a much more remote cause to the final injury, in part because manufacturers have deeper pockets than assailants. Retailers are targeted on the argument that but for their negligence in the sale, the shooting not have occurred. These arguments have a conceptually weak basis in tort law.
A. Tort Theory and Cases
Tort suits against gun manufacturers for non-defective products entail the misuse of legal standards and erroneous assumptions. Because this article deals only with non-defective products, it will omit "non-defective" for the sake of in further discussion.
1. Traditional Tort Theory
Tort theory assumes that responsibility for injury is proved if the plaintiff can establish that the defendant has breached a duty and was the cause of the injury. A manufacturer, by placing a product in the stream of commerce, assumes a "special duty" to the customer, and in view of the assumption if that duty, the consumer is reasonable in believing that the product is safe for the purpose for which it was designed and manufactured. The special duty is presumed to be the manufacturer's because it, unlike the consuming public, has the ability to control the risks inherent in the product.
There are two generally recognized theories of strict liability. One is based on an activity that is "abnormally dangerous." The second involves a defective product that is unreasonably dangerous. Using the second theory, the courts generally determine the potential harm of the unreasonably dangerous product by using one of the tests: the consumer expectations test or the risk-benefit test.(1)
Sections 519 and 520 of the Restatement (Second) of Torts provide an excellent definition of liability from an abnormally dangerous activity:
(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels of another resulting from the activity, although he has taken care to prevent such harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.
The Restatement lists six factors by which to determine if an activity is abnormally dangerous:
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.
In contrast to negligence theory, which holds the manufacturer liable only for the harm that a reasonable person could not foresee, the abnormally dangerous activity theory is deemed a strict liability theory, because it perceives a breach of duty of care in an activity that is carried on with all reasonable care. The abnormally dangerous activity theory is generally limited to activities associated with or directly related to the use or occupancy of land.
Instead of declaring a product or activity per se abnormally dangerous, strict liability places liability the manufacturer only for a defective product that is found to be unreasonably dangerous. A product can be defective if it has a construction or manufacturing flaw, the manufacturer fails to warn the consumer of the dangers inherent in the product, or the product is defectively designed.
Most American jurisdictions have adopted some form of strict liability, and although the precise elements for vary, there are four basic factors:
* The product was in a defective condition at the time it left the possession or control of the seller.
* The product was unreasonably dangerous to the user or consumer.
* The defect was a cause of the injuries.
* The product was expected to and did reach the consumer without substantial change in its condition.(2)
The basic inquiry of the consumer expectations test is whether the product is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics."(3)
The consumer expectations test, however, does not suit actions against gun manufacturers for two reasons. First, the test precludes recovery for injury that results from the use of products that have open or obvious dangers. Second, a particular consumer who may lack the knowledge about a product's dangers, even though such knowledge is common throughout the community, may be unaware of the product being purchased or the risks associated with the product. To impute such knowledge to the consumer may preclude recovery to which an injured victim otherwise may be legitimately entitled.(4)
The second test to determine whether a product is unreasonably dangerous is the risk-benefit test. The fundamental precept of the risk-benefit test is that a product is unreasonably dangerous only if the product's risks outweigh its benefits. In jurisdictions that applied the risk-benefit test, a plaintiff generally had to prove, among other factors, that (1) the product was defective, (2) the defect was the proximate cause of the injuries; (3) the defect made the product unreasonably dangerous, and (4) the product had not changed substantially since it left the manufacturer's control. These requirements mirrored Section 402A and placed an affirmative burden on the plaintiff to demonstrate not only that the product was defective but that the product was unreasonably dangerous by showing that the product's risks outweighed its benefits.(5)
But now in some jurisdictions that apply the risk-benefit test, the plaintiff no longer has the affirmative duty to demonstrate that the product is unreasonably dangerous, it being sufficient plaintiff to prove that (1) the product was defective and (2) the defect proximately caused the injury. In these jurisdictions, the defendant/manufacturer now has the burden to demonstrate that the product's benefits outweigh its risks.
Nevertheless, courts have steadfastly refused to apply the risk-benefit test to handguns. For example, in Patterson v. Rohm Gesellschaft, a Texas federal district court determined that the risk-benefit test "incorporates the idea that a defect is something that can be remedied or changed.... However, a gun, by its very nature, must be dangerous and must have the capacity to discharge a bullet with deadly force."(6)
The superseding cause argument presents one of the more significant defenses to a product liability claim. Section 440 of the Restatement defines a superseding cause "an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about." A superseding cause prevents the plaintiff from proving that the product was defective only because the defect proximately caused the injury. As Section 448 states, because "the act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom," the innocent victim should file suit against the assailant who committed the intentional tort instead of the manufacturer of a non-defective product. But courts sometimes have ruled against the manufacturer.
2. Sample Cases
In Kelley v. R.G. Industries,(7) a grocery store employee was shot during a robbery. The police were unable to identify the assailant, but they did identify the revolver as being manufactured by R.G. Industries. The Maryland Court of Appeals ruled that as a general proposition an arms manufacturer could not be liable to the victim of a gunshot wound inflicted by one of its products. But the court extended its inquiry into whether a gun manufacturer can produce "Saturday Night Specials." These semi-automatic weapons are notorious for their ability to fire rounds of ammunition and for their inconspicuousness under clothing. The court set out the following three principles to be proved for the manufacturer to be made liable: (1) the plaintiff has suffered injury or death from gunshot, (2) the plaintiff was the victim of a crime, and (3) the gun used was a "Saturday Night Special."
The case made precedent by examining the express statutory provisions and declarations of the Maryland General Assembly and the U.S. Congress, determining that not all firearm usage is protected, and stating that reasonable restrictions on the use of firearms are generally permissible. The court then equated restrictions on usage with restrictions or prohibitions on ownership of certain classes of firearms.
First, Kelley diverges from traditional strict liability theory by failing to address proximate cause and the superseding cause represented by the assailant. In addition, Kelley confuses jurisprudence by arguing that it applied strict liability, while implicitly following a standard for an unreasonably dangerous activity. Because there was no requirement of product "defect" in the opinion for strict liability to be applied, Kelley impliedly embraces principles governing unreasonably dangerous activities for three reasons. First, the court seemed to suggest that the risks of Saturday Night Specials cannot be eliminated by reasonable care. Second, the court implied that manufacturing and marketing Saturday Night Specials handguns outweigh the benefits, although the court expressly rebuked a risk-benefit test. Finally, the court contended that there is no over-all utility in ownership of a Saturday Night Special Handgun. All these are factors common to an assessment of an abnormally dangerous activity.
In most cases factually similar to Kelley, courts rule against the plaintiff. Fearful that future courts would rule as Kelley did, the Maryland legislature enacted a statute to prevent similar holdings. And Texas enacted this provision:
(a) In a products liability action brought against a manufacturer or seller of a firearm or ammunition that alleges a design defect in the firearm or ammunition, the burden is on the claimant to prove, in addition to any other elements that the claimant must prove, that:
(1) the actual design of firearm or ammunition was defective, causing the firearm or ammunition not to function in a manner reasonably expected by an ordinary consumer of firearms or ammunition; and
(2) the defective design was a producing cause of the personal injury, property damages, or death.
(b) The claimant may not prove the existence of the defective design by a comparison or weighing of the benefits of the firearm or ammunition against the risk of personal injury, property damage, or death posed by its potential to cause such injury, damage or death when discharged.(8)
These statutes have impeded the bringing of such suits, but they have not necessarily eliminated them. In Buczowski v. McKay,(9) for example, a plaintiff sued gun and ammunition manufacturers for an unintended injury by an armed assailant, who admitted he had been drinking heavily and who fired a shotgun intentionally, which had the unintended result that a slug meant for the plaintiff's car ricocheted off the tire and injured the plaintiff's hand. The jury awarded the plaintiff $1.5 million in damages, which was affirmed by the Michigan Court of Appeals but overturned in the Michigan Supreme Court.
The supreme court quickly disposed of the claim insofar as the ammunition manufacturers were concerned, holding that there was no duty of care because the product was not defective or dangerous and the legislature had not defined a class of purchasers who may be deemed legally incompetent.
But the court pondered whether the retailers were responsible for the accident because they, according to the plaintiff, should have foreseen the proximate harm that was to occur from the purchase of ammunition by an intoxicated customer. The court examined whether the actions of the retailer violated the negligent entrustment doctrine, which holds that an owner or merchant has a duty to prevent injuries caused by selling or lending a dangerous product if he could foreseeably have prevented the harm by refusing the favor. A Michigan statute specifically provides for civil liability in cases of alcohol-related injuries, and its courts have not hesitated to extend the underlying rationale of the negligent entrustment analysis to other contexts where such a statute is not available.(10)
In order to find the controlling factor, the Michigan Supreme Court adopted foreseeability as the baseline for its analysis of duty. It also stated other more policy-related conditions as criteria to establish fault, such as the balancing of societal interests, the severity of the risk, the burden on the defendant, the likelihood of occurrence, and the relationships between the parties. The decision eventually based on the court's conclusion that none of the criteria should offset the importance of the lack of foreseeability.
The court also was not convinced that policy considerations for firearm regulation are equally applicable to ammunition and thereby warrant liability. By citing King v. R.G. Industries,(11) in which a Michigan intermediate appellate court ruled against a plaintiff suing an ammunition manufacturer, the Buczkowski court adopted a two-pronged line of reasoning. First, it stated that the legislature was the appropriate forum to settle such questions of manufacturer liability. Second, it contended that the economic burden of crime on the defendant would not have a "substantial impact on crime."
B. Mistaken Assumptions
Courts declared gun manufacturers liable as the indirect cause of injuries in Kelley but were reluctant to rule similarly in Buczowski. Kelley distorted tort theory by deeming what has been traditionally an argument against an abnormally dangerous activity to pertain to a case concerning strict liability instead. In Kelley, the court concluded that the extremely deadly semiautomatic nature of the Saturday Night Special is appropriate for neither hunting nor for self-defense.
This ruling has negative implications for policy making and common law. With respect to policy, the court overstepped its judiciary role since it made law in an area where past attempts at gun control reforms in the state legislature had failed. Even if one does agree that certain semi-automatic arms are inappropriate for civilian use should be banned, the use of the judicial process to accomplish that goal would not only flood the courts with litigation, but also would create difficulty in drawing a bright line in the rule of law.
In contract, Buczkowski refused to create distinctions even between liability for the manufacturing of ammunition and guns. In addition, the decision refuted the argument that courts can legislate where legislatures have not spoken and looked askance at the claim that possession of the legal non-defective product itself would cause crime. The case also addressed economic arguments concerning retailers' duty of care during the point of sale, issues that other industries, such as tobacco, also have had to face.
1. Gun Manufacturers' Intent
Gun manufacturers do not intend that their products harm innocent people. The sale of firearms is legal because firearms are not used solely to kill innocent people. Any activity that was expressly meant for that purpose would be declared immediately illegal. Yet many plaintiffs' attorneys paint a portrait of firearms manufacturers flooding the stores with guns that are used immediately in shooting rampages.(12)
There is a difficulty of knowing, with any certainty, which guns are involved in crimes because most statistics "suffer from the absence of a proper comparison standard, namely, empirically reliable information on non-crime guns."(13) That is why, although a claimant can establish the number of handguns involved in murders in a given year, it is difficult to show with any reliability how many handguns exist, how many are used in violent crimes (some are used more than once), and the percentage of all handguns used for criminal activity. The best available information, however, indicates that "the fraction of all privately owned firearms that are involved in any sort of criminal activity in any given year is in the order of a fraction of 1 per cent."(14)
2. Handguns Lack Social Utility
This assertion is contradicted in legislation, notably in the congressional intention stated in the Gun Control Act of 1968, 18 U.S.C. [sections] 921 (a):
The Congress hereby declares that the purpose of this title is to provide support to federal, state, and local law enforcement officials in their fight against crime and violence, and it is not the purpose of this title to place any undue or unnecessary federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trapshooting, target shooting, personal protection, or any other lawful activity, and that this title is not intended to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes, or provide for the imposition of Federal regulations of any procedures or requirements other than those reasonably necessary to implement and effectuate the provisions of this title.
Many proponents of gun control advocate a ban on handguns because they suppose that this weapon has no use to law-abiding American citizens. They are mistaken. Many people use handguns for hunting and wildlife purposes, as well as recreational sports like target shooting. Many collectors enjoy an array of firearms without ever using them, while other security personnel need handguns for their profession.
A gun may provide self-defense. The vast majority of homicides are committed by repeat offenders.(15) These criminals generally suffer from mental disorders, substance abuse, or cognitive difficulties.(16) They probably would obtain weapons from a black market source if prohibitions were in place.(17)
In addition, it is difficult to know the numbers of crimes and attacks that may have been deterred by gun ownership. Perception of vulnerability is essential to an attacker's strategy, and a gun automatically deters a situation that but for the visibility of the weapon may have occurred.(18)
3. Strict Liability Will Reduce Crime
In the case of gun control, attacking the supply does not necessarily reach the demand. This has been proved in failed policies prohibiting prostitution and drug and alcohol consumption, in which instances regulation of a potentially dangerous substance or behavior did not decrease consumption, but instead increased it. To emphasize this point, there seems to be no conclusive evidence that gun ownership among the larger population necessarily causes violence. Polsby and Kates write: "In studies of 36 countries, including the U.S., lower rates of legal firearm ownership did not coincide with lower rates of homicide or gun homicide; neither did higher legal ownership rates coincide with higher rates of homicide."(19)
Thus confiscating guns from the market is probably not an ideal method of reducing crime, considering the strong possibility that criminals, who have a proclivity for lawlessness, would still manufacture and distribute their own firearms through a black market system. According to reports from the Bureau of Alcohol, Tobacco and Firearms, few criminals get their guns by direct purchase but through gun shows, by thefts from gun stores, or as a result of large-scale purchases through straw purchasers who go through major dealers.(20)
Plaintiffs' attorneys falsely contend that a decrease in supply of legally available firearms will lead to fewer shootings, and therefore holding manufacturers liable for the acts of a third party will reduce crime. Suits against firearms manufacturers threaten to distort the theoretical base that product liability has rested on because they seek to prove that manufacturers are responsible for all the injuries resulting from a legal product whose very function is foreseeably fatal. In contrast, tobacco manufacturers cannot argue that the harms resulting from their product were foreseeable to all their customers.
C. Contrasting Tobacco and Firearms
Gun manufacturers side-step the incriminating comparison with tobacco companies because, unlike tobacco consumers, average firearm consumers know that guns kill--that is their purpose. In fact, a gun that does not kill is a defective product. The harm that occurs from the use of a gun is foreseeable as opposed to cigarettes, which, until recently, were not universally recognized as necessarily hazardous to one' s health.
Even if a criminal may misuse a handgun, the courts have suggested that a retailer is not responsible for such illicit uses. In Armijo v. Ex Cam Inc., the federal district court held: "The mere fact that a product is capable of being misused to criminal ends does not render the product defective."(21) In Martin v. Harrington and Richardson Inc., the Seventh Circuit stated: "A non-defective product that presents a danger that the average consumer would recognize does not give rise to strict liability."(22) In Bennet v. Cincinnati Checker Cab Co., a federal district court ruled that the law "erects no duty upon a manufacturer of a non-defective product to anticipate the various unlawful acts possible through the misuse of that item" under either a negligence or strict liability theory of exposure.(23)
Not only is the harm from ownership of a gun not foreseeable, but neither is its use in general. Once purchased a gun may never be used, or be used only for hunting or sport. In contrast, manufacturers and retailers of cigarettes can be almost certain that this product will be consumed.
Tobacco, however, does enjoy the legal satisfaction that its victims are voluntary consumers, in contrast to firearms, whose victims are the unwilling recipients of bullet wounds. Firearms manufacturers can always counter, however, that the superseding cause, the assailant, exculpates the manufacturer. Firearms manufacturers can also argue that while the dangers of their product need no explanation, the hazards of smoking were deliberately concealed by tobacco manufacturers.
Tobacco also has no recognized safety features that would allow a trained individual to use it safely, while firearms are a viable legal product with safety features. Courts have ruled that even when gun users negligently misfire, manufacturers are safe from liability, provided that all the safety devices in the gun functioned properly at the time of the firing. For example, in De Rosa v. Remington Arms Co., the widow of a police office sued the manufacturer of a shotgun which accidentally discharged and killed her husband. The safety devices were not employed by her husband, but this did not prevent the plaintiff from alleging that the trigger force of the shotgun was so low that it was defectively designed for its foreseeable use in police work. Still the court found for the defendant, partly on the basis that the gun contained all the optimum safety features.
The federal district court stated:
A manufacturer in New York is not, however, required to act as an insurer with respect to its product, ... nor to protect against every conceivable misuse by its design choices. Neither in strict liability nor negligence is a manufacturer to be held absolutely liable for all harm occasioned by its product since no product can be made absolutely safe or completely accident-proof.(24)
Holding firearms manufacturers liable for their products may even jeopardize the production of firearms for civilian use. After viewing the destructive financial repercussions that tort litigation has had on tobacco companies, courts may realize that to allow all victims of gunshot wounds and tobacco-linked illnesses to bring suit will for all intents and purposes ban these products. If a ban occurred, two questions need be asked. First, courts would have to conclude that a total ban on the manufacture of the item for civilian use would not be a viable option. Second, courts would be forced to conclude that a ban on these items may permit courts to apply a no-fault strict liability test to other products that may cause harm--for instance, knives, hammers, even cars.
A total ban on cigarettes would cause different ramifications. The specter of smokers, numbering 50 million in this country, suffering for deprivation of a product to which they are addicted, could prove convincing to many courts. Richard Cooper, former chief counsel for the Food and Drug Administration, argued before the U.S. Supreme Court that to allow the FDA jurisdiction over tobacco products would give the agency no choice but to ban them.(25) It is a certainty that the addictive affects of nicotine would compel more people to circumvent the law in the event of a total ban, than in the case of a ban on firearms. In that sense, a ban on tobacco is not viable.(26)
Yet a ban on civilian pistols is conceivable and has even been in place since 1976 in the District of Columbia, which still suffers from a high crime rate.(27) In fact, the veritable impossibility of confiscation of and the illegal importation of firearms make criminals the possible final owners of guns, after law-abiding citizens' firearms wear out.
Second, a judicially imposed ban on either tobacco or firearms could extend to restrictions on other items considered harmful. Because of the possibility for arbitrariness in each court ruling, jurisprudence on the liability for harmful products may betray an inconsistency that could turn into a ban. Restrictions on such items as knives, bats or hammers could impose economic harm on entire industries, as illustrated by plaintiffs' attorneys recent efforts against the paint industry for lead poisoning.
UNDERMINING CORE VALUES
Tort suits against gun manufacturers not only have a weak conceptual basis, but they also threaten core American values and institutions, such as the health and well-being of industry through free market policies, the constitutionality of the judiciary overstepping its jurisdiction, and the personal responsibility of the assailant.
A. Economic Effects
Permitting victims to sue gun companies may bankrupt these manufacturers. First, if courts apply Kelley, gun companies would find it difficult to continue to manufacture their products on the open market. Even if they were legally able to manufacture, the payment of the awards alone would bankrupt them or would force them to pay enormous insurance premiums, making their business unprofitable.
In addition, the litigation would have a "chilling effect" that would make manufacturers fearful of even experimenting with new products, especially if courts rule against "state of the art" products without defects. Small business could not contemplate the risks. By vastly increasing the hypothetical cost of entering a new business, tort suits may be destroying the possibility of maintaining a level-playing field in the market.
Plaintiffs and their attorneys engage in social planning and argue that their goal is to pressure gun companies into marketing their weapons in a safer manner and placing certain safety precautions on them. If this is true, one would wonder why so many tort suits have been brought against companies that are producing weapons that satisfy all of the current product liability standards. This does not send the message that responsibility in manufacturing a hazardous product will be respected, and irresponsibility will be punished.
B. Roles of Legislators and Judiciary
It has been said that because many of the plaintiffs cannot obtain anti-gun regulations from Congress that please them, they have turned to the judiciary to accomplish their goals. By doing so, they undermine the constitutionality and propriety of the legislative and judicial branches of government in the United States.
One learns in secondary school that the legislators make laws and the courts interpret them. But lawyers know that courts do make law at times, and it is difficult to draw a line between legislative and judicial roles. Yet most courts defer to legislative determinations, even the activist ones. Courts are reluctant to overturn statutes and regulations in the name of public policy, and they frequently deem an issue untouchable because it is a "policy question."
The judiciary should not be allowed to legislate on firearms control for two reasons. First, courts must give effect to the Second Amendment to the U.S. Constitution and the separation of powers doctrine. Second, courts should not trespass the bounds of propriety in the traditional legal system
Judicial restraints placed on gun manufacturers would trespass on certain constitutional guarantees. Not only are firearms per se legal, they also are explicitly permitted by the Second Amendment, which grants a right to bear arms. In addition, judicial firearm regulation violates the separation of powers doctrine because it endorses the judiciary's overstepping its authority and legislating in the place of Congress and state legislatures.(28)
Those who support liability for gun manufacturers argue a lack of legislative activity should allow the courts judicial latitude. Legal propriety suggests, however, that courts are not considered free to act when legislative bodies have been silent on an issue. The U.S. legal tradition and history imply that courts should refuse to assume the power of firearm regulator. From the origins of America, guns have been de facto legal, as legal as any other product, albeit with certain restrictions attached. This is not only an issue on which common law has spoken, but the legislatures of most of the states have been active in issues of gun regulation. Even if, for the sake of argument, one advocates judicial activism in the field of gun control, the fact that legislatures debate and reject various measures should be enough evidence that the legislature did not intend that guns should be prohibited by the courts.
The courts' common law approach also suggests the imprudence of the judiciary legislating. Common law cases deal with only one example of weapon and do not give any guidance on other types of firearms. Distinctions between firearms are difficult to make for a judge unskilled in the area. Prohibitions on firearms also are made more complex by the judiciary's tendency not to define exactly what is being regulated. Finally, once one type of firearms is regulated, a slippery slope may begin after which all guns could be prohibited.
In general, the tort system and jury trials are themselves imperfect. Overburdened with a caseload, the system is known for delay and inefficiency. Worse even, outcomes are arbitrary, depending more on the skill of the advocates and their chemistry with jurors than on the merits of the case. Legislatures guarantee much more political accountability and legal consistency than the court system.
C. Personal Responsibility
Legislatures also would be the ideal forum to enact measures that would deal with the personal responsibility of gun owners. The United Kingdom has done that through the Firearms Act 1989, which illustrates how to regulate the gun owner and recognizes that the ultimate responsibility for the injury rests not with the manufacturer of the weapon but with the assailant.(29)
Most plaintiffs' attorneys in a tort suit against a firearms manufacturer in U.S. courts ignore the personal responsibility of the person who pulled the trigger because they refuse to acknowledge that there is a superseding cause. Frequently their silence is out of necessity, because the trigger-puller is an impoverished assailant who did not have deep enough pockets to satisfy the lawyers' contingency fee.
At any rate, the motto that "he who can pay will pay" ignores the guilt of the true instigator of the crime and suggests that every wrong can be righted by a redistribution of cash. It also justifies a court considering any party, no matter how remote, the cause of the victim's injuries, as long as that party would be rich enough to pay damages.
But tort suits against gun manufacturers betray more than greed. By focusing on the supply of a dangerous product instead of the demand, American social policy risks adopting the simplistic view that a dangerous weapon or instrument creates the harm, instead of the individual that consumes or uses the harmful device. Part of this naivete may be the American willingness to embark on social experiments to eradicate "social ills" to create a more perfect society. American history, however, is replete with examples of such failed experiments in the areas of drug abuse and alcohol consumption.
Many of the social idealists who seek to reshape social policy through the courts are ensconced in academe, where they have modeled intricate economic plans to eradicate gun ownership through tort suits. For example, researchers such as Paul R. Bonney have proposed that courts engage in social planning by increasing the economic costs of gun ownership. He argues that holding handgun manufacturers liable would force them to incorporate injury costs into the price of handguns and make purchasing firearms more expensive and more inaccessible.(30) While this notion may be statistically sound, it advocates using tort liability theory and the justice system for narrow political and economic means. Courts should not be used for socio-economic planning, but instead to punish irresponsible and negligent industry.
Holding gun manufacturers liable for producing legal non-defective products places industry in a precarious position and threatens to distort the division between legislative and judicial roles in our society. It challenges theories of tort liability, sound business practices, legislative accountability, and personal responsibility.
Unfortunately, government stepped in to aid plaintiffs in their assault against industry. Secretary of Housing and Urban Development Andrew Cuomo threatened to help some 3,200 public housing authorities file a gigantic class action lawsuit against gun manufacturers unless they yielded in their settlement talks with state and local governments that charged the industry with creation of a public nuisance by the reckless distribution of firearms. This was followed by a myriad of suits brought by municipalities against gun manufacturers, ostensibly seeking billions of dollars in damages public officials claim flow from gun violence.(31)
Governments' involvement is owing, in part, to their own failure to secure a decent police force and quality of life in poorer neighborhoods. Instead of direct action targeted at assailants, they attack the weapons themselves, which could easily be purchased in other places.
A more promising recent initiative involves legislation proposed at the state level that would ban tort suits for injuries caused by gun manufacturers. This bill became law in 15 states by the end on 1999 and demonstrates the state legislatures' refusal to cede the authority to municipalities to embark on far-reaching policy initiatives, especially when they are potentially revenue producing.(32) It is to be hoped that this type of legislative measure will finally end tort suits' unwarranted extension of judicial power into the realm of policy making.
(1.) RESTATEMENT (SECOND) OF TORTS [sections] 402A.
(2.) Phipps v. Gen. Motors Corp., 363 A.2d 955, 959 (Md. 1976).
(3.) RESTATEMENT (SECOND) OF TORTS [sections] 402A cmt. i.
(4.) Michael J. Folio, The Politics of Strict Liability: Holding Manufacturers of Nondefective Saturday Night Special Handguns Strictly Liable after Kelley v. R.G. Industries, Inc., 16 HAMLINE L. REV. 147, 156 (1992).
(5.) Barker v. Lull Eng'g Co., 573 P.2d 443, 446 (Cal. 1978).
(6.) 608 F.Supp. 1206, 1212 (N.D. Tex. 1985).
(7.) 497 A.2d 1143 (Md. 1985).
(8.) TEX. CIV. CODE ANN. [sections] 82.006.
(9.) 490 N.W.2d 330 (Mich. 1992).
(10.) MICH. COMP. LAWS ANN. [sections] 436.22.
(11.) 451 N.W.2d 874 (Mich. App. 1990).
(12.) Daniel D. Polsby & Don B. Kates Jr., Causes and Correlates of Lethal Violence in America: American Homicide Exceptionalism, 69 U. COLO. L. REV. 969, 981 (1998).
(13.) Nicholas E. Calio & Donald E. Santarelli, Turning the Gun on Tort Law: Aiming at Courts to Take Products Liability to the Limit, 14 ST. MARY'S L.J. 471, 478 (1983).
(14.) NAT'L INSTITUTE OF JUSTICE, U.S. DEP'T OF JUSTICE, WEAPONS, CRIME AND VIOLENCE IN AMERICA 12 (1981).
(15.) BUREAU OF STATISTICS, U.S. DEP'T OF JUSTICE, SPECIAL REPORT: MURDER IN FAMILY 5, table 7 (1994).
(16.) Sheila Andgins, Mental Disorder, Intellectual Deficiency and Crime, 49 ARCH. GEN. PSYCHIATRY 476 (1992).
(17.) TOM TYLER, WHY PEOPLE OBEY THE LAW (1990).
(18.) John Kates, Some Remarks on the Prohibition of Handguns, 23 ST. Louis U. L.J. 11, 16-19 (1979).
(19.) The homicide data were collected by Center for Disease Control employees Etienne G. Krug, Kenneth Powell and Linda Dahlberg in an unpublished manuscript, Firearms-Related Death in the United States and 35 Other High-and-Upper-Middle-Income Countries. They are set out in GARY KLECK, TARGETING GUNS: FIREARMS AND THEIR CONTROL 96-97 table 1.3.1 (1997).
(20.) Gary Kleck, The Misfire That Wounded Colt's, N.Y. TIMES, June 15, 1990 at A27.
(21.) 656 F.Supp. 771, 773 (D. N.M.1987), aff'd, 843 F.2d 406 (10th Cir. 1988).
(22.) 743 F.2d 1200, 1202 (7th Cir. 1984).
(23.) 353 F.Supp. 1206, 1210 (E.D. Ky.1973).
(24.) 509 F.Supp. 762, 768 (E.D.N.Y. 1981).
(25.) Robert S. Greenberger & Gordon Fairclough, At High Court a Showdown over Tobacco, WALL ST. J., December 1, 1999, at B1.
(26.) The FDA seems to have concluded likewise. In its attempt to gain regulatory authority over tobacco products, the agency stated that "the record does not establish that such a ban is the appropriate public health response." 61 Fed. Reg. at 44398.
(27.) D.C. CODE ANN. [sections] 6-2341(b) (1973). "Canadian laws governing the ownership of firearms are less restrictive than those of Washington, D.C., New York City, and Chicago, and yet homicides with handguns in Toronto, Montreal and Vancouver are a fraction of the rates in these three American cities." DAVID B. KOPEL, THE SAMURAI, THE MOUNTIE, AND THE COWBOY: SHOULD AMERICA ADOPT THE GUN CONTROLS OF OTHER DEMOCRACIES 278-302 (1992).
(28.) See Philip Oliver, Rejecting the "Whipping-Boy" Approach to Tort Law: Well-Made Handguns Are Not Defective Products, 14 U. ARK. LITTLE ROCK L.J. 1 (1991).
(29.) Peter R. Burton, Firearms Licensing, 87 LAW SOC'Y GUARDIAN GAZETTE 27 (May 23, 1990).
(30.) Paul R. Bonney, Manufacturers' Strict Liability for Handgun Injuries: An Economic Analysis, 73 GEO. L.J. 1437.
(31.) Richard A. Epstein, Lawsuits Aimed at Guns Probably Won't Hit Crime, WALL ST. J., December 9, 1999, at A26; Paul M. Barrett, Gun Industry Wins Round in Battle, As Judge Dismisses Bridgeport Lawsuit, WALL ST. J., December 13, 1999, at A36.
(32.) Francis X. Clines, Statehouse Journal: Ban on Suing Gun Makers Is Gaining Steam, N.Y. TIMES, February 17, 2000, available at http:// nytimes.qpass.com/qpass-archives
Timothy A. Bumann, A Products Liability Response to Gun Control Legislation, 19 SETON HALL LEGIS. J. 715 (1995).
Michelle Capezza, Controlling Guns: A Call for Consistency in Judicial Review of Challenges to Gun Control Legislation, 25 SETON HALL L. REV. 1457 (1995).
Roland Docal, The Second, Fifth and Ninth Amendments: The Precarious Protectors of the American Gun Collector, 23 FLA. ST. U. L. REV. 1101 (1996).
Joseph A. Page, Liability for Unreasonably and Unavoidably Unsafe Products: Does Negligence Doctrine Have a Role to Play? 72 CHI.-KENT L. REV. 87 (1996).
Suzanne Sumpter, Buczkowski v. McKay: A Proper Case For Gun Dealer Liability? 1 Geo. MASON IND. L. REV. (1992).
Danielle Feldman is a 2000 graduate of the Georgetown Law Center. She received her undergraduate degree from Brown University in 1995 and also graduated from the London School of Economics in its Masters in European Studies program in 1996. She worked in Brussels for a year and a half as an intern at Hill & Knowlton, at the European Commission, and as a policy consultant in the Brussels office of the New York City firm of Winthrop, Stimson, Putnam & Roberts.
This is an edited and condensed version of the paper with which she won an honorable mention in the 2000 IADC Legal Writing Contest.…
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Publication information: Article title: Making Social Policy through Courts: Gun Control Advocates Fight Firearms. Contributors: Feldman, Danielle - Author. Journal title: Defense Counsel Journal. Volume: 68. Issue: 1 Publication date: January 2001. Page number: 72. © 1999 International Association of Defense Counsels. COPYRIGHT 2001 Gale Group.
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