The New Bill to Protect the Gun Industry From Lawsuits
How It Strikes at the Heart of Age-Old Tort Law Principles

Last year, the Congress almost sent to the President the Protection of Lawful Commerce in Arms Act (PLCAA). If enacted into law, the PLCAA would have granted the American firearms industry extraordinary federal protection from state tort suits.

As Professor Sebok discussed in a prior column, that legislation was unnecessary and ill-conceived. Now, another gun industry protection bill has been proposed -- and the U.S. Senate plans to consider it early this March. Like its predecessor, however, the new bill is a bad idea.

The new proposed federal law would grant the gun industry immunity from tort claims brought by over 30 big city mayors, and dozens of individual shooting victims. It would put an end to suits based on the industry's failure to equip guns with safety devices that might prevent accidental shootings. It would also end suits based on the industry's use of distribution practices that, according to plaintiffs, increase the risk that the guns will fall into the hands of criminals.

Thirty-two states -- including Texas, Florida, Pennsylvania, Virginia, Georgia, Michigan, and Ohio -- have already passed similar legislation. The proposed legislation would be a federal version of the same type of bill.

Supporters of the bill contend that gun lawsuit plaintiffs are misusing the tort system. They argue that what plaintiffs really want is gun control regulation -- regulations they should be seeking through the legislature, not the courts. They also argue that the plaintiffs don't really want justice -- they want to compel settlement, by filing lawsuits en masse in order to create overwhelming defense costs that will force the industry to settle, regardless of the merits of the claims against them.

Opponents argue, in response, that the lawsuits can do a great deal of good -- resulting in guns with better safety features, that will cause fewer accidents, and improving gun distribution systems that, they say, route guns directly into criminals' hands. They say, as well, that the proposed immunity legislation merely confirms the gun lobby's grip on the legislative process -- and that grip explains the need for the lawsuits in the first place. Finally, they contend that the immunity legislation attempts to resolve, with political muscle, claims than ought to be resolved with legal principles, in the courts.

The only major change to the new bill was introduced by Tom Daschle, a leading Senate Democrat from South Dakota. Daschle amended the legislation by adding language that was designed to broaden the exceptions to the bill.

In its original form, the bill permitted lawsuits against manufacturers or sellers of guns only if they "willing and knowingly" violated a state or federal law related to the sale or marketing of a gun which was used to injure someone. But in its amended form, the bill lawsuits if the manufacturers or sellers of the gun "violated" a State or Federal law related to the sale or marketing of a gun which was used to injure someone -- whether or not the violation was willing or knowing.

Unfortunately, the Daschle amendment, in practice, will do nothing to lessen the law's reach. Nor does it make the law more palatable. The bill still makes impossible the three most important kinds of lawsuits that are currently being brought against the gun industry: public nuisance suits; negligent marketing/distribution suits; and product liability suits based on manufacturers' alleged failure to design guns to include safety features that would ensure that they could not be misused.

Granted, it's true that there are fourth and fifth categories of suits that the amendment would permit. The fourth category is comprised of negligent entrustment suits, which allege that the defendant unreasonably gave a weapon to someone who misused it. And the fifth category is comprised of suits based on per se negligence on the part of the defendant. (What "per se" negligence means is that the plaintiff need not prove negligent, because it is established by the fact that the defendant manufacturer or seller violated a statute).

But in real world terms, these fourth and fifth types of suits are simply irrelevant to the current litigation strategy of gun-control advocates. It's the first three kinds of suits that really matters. And those are the very suits the legislation -- even as amended -- still would make impossible.

Are all the suits which the legislation would eliminate "junk" lawsuits? Consider, for example, the tort suit brought by the victims (or, in the case of the deceased, the families of the victims) of the Washington, D.C. area snipers, John Allen Muhammad and Lee Boyd Malvo. As the law firm of Wilmer, Cutler & Pickering has pointed out in a memorandum, the bill would immunize the defendants in the sniper suits. But is that a fair result? Let's take a closer look at the suit, to consider the question.

In that suit, the plaintiffs have sued Bull's Eye Shooter Supply, the dealer from which Malvo allegedly stole the semi-automatic rifle the snipers used. They claim that Bull's Eye was grossly negligent in its supervision of its store, which permitted Malvo to shoplift the rifle.

The plaintiffs have also sued Bushmaster Firearms, the rifle's manufacturer. They allege that Bushmaster knew or should have known that Bull's Eye was grossly negligent, and yet kept supplying it with weapons.

Will the plaintiffs, if given the chance to present their claims in court, be able to prove them? Of course, without looking at the evidence, we cannot say. But we can say with certainty that the tort principles upon which their allegations are based are hardly radical or brand new.

It is, in part, for this reason that a Washington State judge declined to grant the defendants' motion to dismiss in the sniper tort case. The court pointed out that the idea that Bull's Eye, or Bushmaster, has a duty to take reasonable steps to ensure that the firearms they sell are not used for criminal acts, is not a novel principle in common law tort.

Indeed, that principle is quite similar to, say, the rule that a motorist has a duty to take reasonable steps to insure that his car is secured against theft (usually by removing the keys from the vehicle). And, if he fails to do so, he may be found liable to a pedestrian who has been struck by the car as it was driven away by a joyrider.

The principle is this: One who carelessly gives a criminal an open opportunity, may be held liable for the subsequent crime. A landlord who fails to light a dark hallway may be liable for a subsequent criminal assault there. The new bill, even as amended, would obviate that simple principle in tort. Reasonable minds can differ about where to draw the line in cases involving the negligent enabling of criminal behavior, but it would be quite radical to suggest that the duty should be cut off entirely.

The NRA points out that even without tort liability, defendants such as Bull's Eye and Bushmaster will be able to be held liable for their failure to follow state and federal law. But liability only for statutory violations has never been the rule in American tort law. Indeed, the rule has been quite to the contrary.

In a classic tort case, the plaintiff alleges that the defendant was negligent; the defendant says he (or it) was not. The jury must decide who is correct. How does it do so? It doesn't look to statutes, but to the idea of "negligence," as the judge explains it to jurors. Negligence is a violation of the duty of reasonable care. But what's "reasonable"? That's up to the jury to decide -- by using common sense, common knowledge, life experience, and its own standards of reasonableness. Indeed, juries -- not judges -- are chosen to decide "reasonableness" issues precisely because they can bring their collective experience to bear, and not just refer to a statute.

As a result, tort law and business regulation are simply not co-extensive areas of law. Importantly, a seller or a manufacturer can be negligent even if they do everything statutes and regulations tell them. (For example, pharmaceuticals and auto manufacturers are frequently held liable in tort even if they have obeyed every state and federal regulation in their industry.)

Unfair to the defendant? Not when it would have been common sense to do something, and careless not to do it. After all, shouldn't a gun store have an alarm system, and locked cases for its guns, even if no law specifically tells it to do so? Without such precautions, the risk guns will be stolen and used in a crime is high -- and it is obviously so. If a store owner skimps on safety to save money, that same store owner ought to be liable when its unsafe practices later cause harm.

Oddly, at the same time they are pushing so hard for the new law, the NRA and other defenders of the legislation -- in some of their published material -- protest that its passage wouldn't be such a big deal. Indeed, in some of their public statements, they seem even to suggest that the sniper tort suit would not be preempted after all. Only truly "junk" lawsuits -- those that would have failed anyway -- will be cut off.

Of course, it cannot be true both that this new law is important, and that it is minor. But the NRA and its allies seem intent on taking both positions.

In our view, this isn't just hypocrisy. We believe that from proponents' point of view, the new gun industry immunity law is important because it is a battle in a larger war, but also relatively minor, in that the war will be much wider than this single law.

Debate in the House of Representatives last year revealed that gun immunity legislation is also a vehicle for framing the terms of debate over the larger issues of gun control and tort reform. One side trumpets the "right to keep and bear arms," decries groundless "junk lawsuits," and "nuisance suits." The other side trumpets the "right to have one's day in court," decries "junk guns," and urges that the gun industry is itself a "public nuisance."

Of course, it's no surprise that the debate has featured strong rhetoric. But in this context, that rhetoric will doubtless have an effect. For instance, the effect of labeling public nuisance suits by municipalities "junk" litigation is to delegitimate the political viewpoint of antigun activists. And once their view has been mocked and sidelined, antigun activists may find themselves not only barred from the courts, but effectively barred from the legislatures as well, for they will not be taken seriously there.

In sum, the new law's real purpose may well be to allow the NRA and its allies to do exactly what they have accused the gun-control advocates of doing: Conduct a political debate over gun control policy under the guise of a debate over tort law and tort doctrine, and control the terms of that debate.

Is compromise possible on the issue of gun lawsuit immunity? Of course. After all, sweeping immunity laws are hardly the only legislative responses to gun litigation.

Consider Maryland's experience. In Kelley v. R.G. Industries, a Maryland court passed a law overturning the doctrine of strict liability for the manufacture, distribution, and sale of Saturday night specials. But in 1988, the Maryland legislature enacted law overturning that doctrine, and creating, in its place, a board of experts to identify and restrict the sale of handguns with a high risk of criminal misuse.

Or consider California's experience. The legislature twice tweaked its tort law as it related to handguns. First, it instructed its courts that firearms manufacturers could not be held liable in strict products liability. Then it reversed itself in 2002, after the dismissal of the plaintiffs' suit in Merrill v. Navegar, a suit in which the victims of a mass shooting in an office building attempted to hold liable the manufacturer of the weapon used.

Unlike sweeping immunity laws, these two states' more focused responses promote the integrity of tort doctrine, respect the separation of powers, and preserve a regulatory role for the courts. The U.S. Senate should follow these States' example, and legislate more precisely.

Of course, it's sometimes appropriate for a legislature to overturning common law doctrines when it disagrees with their policy implications. But it should try to do so in a restrained way.

Tort law has traditionally been the province of courts, not legislatures. And making sweeping changes to a carefully developed, subtle system that has been around since the beginning of the Republic, in one fell swoop, is unwise -- and may end up being disastrous. It's surprising to hear Republicans -- who tout both tradition, and states' rights -- urging a solution here that would decimate legal tradition, and ignore state solutions in an area where thirty-two of our fifty states have already acted.

In the end, we ought to be suspicious of federal tort immunity statutes for specific industries. Such exemptions are generally exactly what they seem to be: A coup for lobbyists, and a scar on the law.

Except in very carefully circumscribed cases, tort reform should be left to the states -- whose courts nurtured and subtly revised the common law of torts for as long as they have existed. Taking out major parts of their subtle mechanism, to benefit particular industries, is a very bad idea indeed.