August 06, 2001 Policy

Opposing Firearm Industry Immunity

01A10B

Report of the
Los Angeles County Bar Association

Recommendation

RESOLVED, That the American Bar Association opposes federal, state or territorial legislation to create special legal immunity for the firearms industry from civil tort liability.
 

Report

Introduction

Legislation proposed in the 107th Congress, if enacted, would preempt state common law and statutory authority over almost all potential civil tort claims against the firearms industry by stripping state and federal courts of jurisdiction to hear those claims. The federal legislation is similar in design to legislation enacted in 19 states in the last two years creating a special immunity for the firearms industry from claims brought by governmental bodies and to five states' enactment of legislation creating a broad immunity for the firearms industry from any tort claims, including those brought by individuals, based on negligence or nuisance theory.

The American Bar Association has long supported the principle that more accountability – not less – is needed with respect to the legal duties of firearm manufacturers, gun dealers, parents and individuals regarding their respective roles in how firearms are used and misused in our society. Dating back to 1965, the ABA House of Delegates has repeatedly and steadfastly called for tougher law enforcement in the area of gun crimes, regulating gun dealers, gun sales and possession and aspects of individual ownership of guns. The House of Delegates has also advocated holding the gun industry to higher regulatory safety standards in order to protect the public. In August 1994, the House of Delegates called for Congress to amend the federal Consumer Product Safety Act to bring an end to the unique status of firearms as the only consumer product manufactured and sold in the United States not subject to federal health or safety regulation. That 1994-approved recommendation further called for enactment of requirements that gun manufacturers equip all future guns with proven existing safety features, including gun locks and load indicator devices. In 1996, premised on the lack of accountability with under-enforced criminal laws, the House of Delegates approved a recommendation brought forward by the Section of Tort and Insurance Practice supporting the right of victims of gun violence to seek redress under our civil laws, and called specifically for expansion of federal and state civil causes of action paralleling criminal law violations of gun laws. The ABA has also long opposed federal pre­emption of state product liability laws and has an even longer history of opposing federal "court-stripping" proposals to legislatively limit jurisdiction of the courts on controversial subject matter.

If the proposed recommendation is approved, the ABA will apply a consistent standard to oppose federal and state legislation designed to create a special immunity for the firearms industry from civil tort liability. The ABA should approve this proposed recommendation because the ABA continues to support stronger-not weaker-legal responsibility and accountability for public safety by gun manufacturers and dealers. Further, the ABA should go on record opposing these legislative proposals because they are a form of "court-stripping" legislation: such legislation will strip state civil courts of jurisdiction to hear and determine tort claims made against a single industry with a great deal of political clout. Civil tort liability will be preserved for all other industries. Similarly situated victims who have been injured or lost a loved one would have the right to bring civil claims pursuant to their common law rights except where the instrument of injury or death was a gun. Such special interest immunity legislation sets a dangerous precedent for legislating jurisdiction of civil claims for other politically charged matters, and would undermine the role of our courts in administering individual claims in a system aimed at achieving equality and justice under the law. The ABA should continue to support enactment of laws to require increased legal responsibility and accountability for gun manufacturing, sales and ownership and oppose special interest legislation, like proposals to immunize the gun industry from civil tort liability, which results in the weakened public safety.

Background

Roughly 30,000 people are killed every year with firearms, more than one every 20 minutes, making firearms second only to motor vehicles as the most frequent cause of in­ jury death in the United States. Since 1965 more than one millio11 people have been shot and killed in domes­ tic gun incidents, more than all Americans killed in all foreign wars combined during the twentieth century. In 1998, 64,000 people were treated in hospital emergency rooms for nonfatal firearm injuries. Medical costs associated with hospital care for gun injury have been variously estimated at $ 1- $2 billion per year, most of which is at taxpayer expense.

Gun injury and death has been the subject of civil claims for decades. In an article published June 24, 1993 entitled "Wild West Legacy : Ruger Gun Often Fires if Dropped, but Firm Sees No Need for Recall ­ Company Settles Hundreds of Claims, Maintaining The Revolvers Are Safe," the Wall Street Journal documented 40 years of deaths and injuries in incidents with a Ruger revolver that frequently fired when accidentally dropped due to a design problem. Hundreds of cases were settled, but because neither the federal Bureau of Alcohol, Tobacco and Firearms nor the Consumer Product Safety Commission had authority over firearm defects and design, the gun was never recalled.

On October 30, 1998, New Orleans filed a suit against the gun industry based on claims that the gun industry designed and marketed handguns that lack basic safety features that would prevent shootings by children, teenagers and other unauthorized users. Over the next two years, an additional 31 cities and counties and the State of New York have filed suits against the gun industry, alleging a range of claims based on negligence, nuisance and product liability theory. A significant number of suits brought by individual plaintiffs are based on similar allegations and theories of liability. While the gun industry has successfully had some cases dismissed, many courts have found that cases before then present cognizable claims, and that the plaintiffs are entitled to discovery and ultimately, a trial on the merits. In response, the gun industry has vigorously pursued legislation to immunize itself from these and most claims of civil tort liability.

Two bills have been introduced in the 107th Congress to date that would bar civil actions in federal and state court against the gun industry. On January 3, 2001, Representative Bob Barr (R-GA) introduced H.R. 123, "to prohibit civil liability actions from being brought against manufacturers, distributors, dealers, or importers of firearms or ammunition for damages resulting from the misuse of their products by others." On May 25, 2001, Representative Cliff Stearns (R-FL) introduced H.R. 2037, "to Amend the Act establishing the Department of Commerce to protect manufacturers and sellers in the firearms and ammunition industry from restrictions on interstate or foreign commerce."

H.R. 2037 provides that any action for "civil damages or equitable relief" is a prohibited "restriction on interstate or foreign commerce" unless it derives from a breach of con­ tract or warranty or "improper functioning of a firearm or ammunition product, when used as intended, due to a defect in design or manufacture." H.R. 2037 would legislatively preempt state common law and statutorily authorized actions nationwide brought by any party based on claims of negligence or nuisance, and create a narrow federal product liability standard that would immunize the firearms industry from all but a most narrow group of product liability claims.

Similar legislation to immunize the firearms industry from civil litigation on a state-by-state basis has been introduced in almost every state legislature in the past two years. To date, 24 states have passed legislation shielding gun manufacn1rers and dealers from civil liability. Legislation passed in this year's sessions includes: (1) Florida, where on May 1, 2001, Governor Jeb Bush signed Senate Bill 412, prohibiting local units of government from bringing suit against the gun industry; (2) Indiana, where on April 18, 2001, Governor Frank O'Bannon signed House Bill 1043, granting special protection to the gun industry from suit by cities, counties and individual citizens; (3) Ohio, where legislation barring civil suits by governmental entities and individual citizens is awaiting signature by Governor Bob Taft.

This legislation, and the arguments of the gun lobby in support of it, is premised on claims that, if applied to other industries, would block almost all suits seeking damages for tortuous behavior. The proposed federal legislation, as is argued by the gun lobby, would preclude any gun manufacturer liability unless the firearm fails to work. According to this argument, it is only when a gun will not shoot straight that a gun owner would have an actionable claim against a gun manufacturer. The core premise of the federal immunity legislation is at odds with basic principles of American tort law. Longstanding product liability principles have provided that a product can be defective in design regardless of whether it malfunctions. A leading example is provided by the litigation against the Ford Motor Co. resulting in its being held liable for fires caused by the placement of its Pinto fuel tank. While the fuel tank did not cause the car to malfunction, its placement created an unreasonable risk that passengers would be incinerated after a collision. Similarly, if gun manufacturers fail to install safety devices to prevent gun accidents then the guns may be unreasonably dangerous even if they fire bullets properly.

Second, the proposed legislation incorporates limitations on actions because the gun industry and the bill sponsors maintain that gun manufacturers and sellers cannot be liable in tort law because the product involved is legal. This claim confuses criminal liability, which applies only to illegal conduct, with civil tort liability, which does not. Most civil tort law is concerned with the actions of parties whose actions are legal but nevertheless expose others to an unreasonable risk of harm. In the famous Ford Pinto case, the placement of the gas tank was not in violation of any statute, but it created a hazard such that Ford was held liable.

Third, these immunity bills and the gun lobby put forward the principle that the gun industry cannot be held liable when its products are misused by others. This notion is contradicted by innumerable examples relating to other industries. If this were the state of the law, our courts could never have held auto manufacturers liable for selling cars without seat belts and other safety features be­ cause most car accidents are caused by driver error.

To illustrate how the proposed federal legislation would impact recent litigation, and noting that the proponents of this report have no knowledge of the facts of these cases or the worthiness of the claims they are based on the following arc a list of recent or pending cases that raise claims that presumably could not have been brought if broad immunity legislation was in place:

  • Kitchen v. K-Mart, 697 So. 2d 1200 (Fla. 19 7): A Florida woman, Deborah Kitchen, was rendered a quadriplegic when she was shot by her ex-boyfriend. A gun dealer sold the gun to the ex-boyfriend even though he was so intoxicated that he could not fill out the federal form without assistance. The intoxicated boyfriend shot Kitchen within hours of the sale. A Florida jury – and the Supreme Court of Florida – found that the dealer's negligence was a cause of the shooting, and should pay damages to Kitchen .
  • Merrill v. Navegar, 89 Cal. Rptr. 2d 146, 161-85 (Ct. App. 1999), review granted (Cal. 2000): A gun maker marketed military assault weapons to the public even though they had no apparent civilian utility, and through print advertising solicited a claimed-criminal market by, for example, boasting of the gun's "excellent resistance to fingerprints." One of its customers used the gun to slaughter eight men and women, and injure six more, in a San Francisco law office. The California Court of Appeals found that the gun maker's negligence could be a legal cause of the shooting.
  • Pavlides v. Niles Gun Show, 93 Ohio App. 46 ( I 994): A Canton man, Greg Pavlides, was rendered a paraplegic when he was shot by teenagers who were able to obtain their guns because a gun show's negligence enabled them to stroll about the show, pick up guns that were lying around on tables, totally unsecured, and walk away with them . A jury – and the Ohio Court of Appeals – found that the gun show's negligence was a cause of the shooting, and should pay damages to Mr. Pavlides.
  • Hooper v. Wal-Mart, Civ.-98- C-1496-NE (N.D. Ala. 1998): Wal-Mart sold a shotgun to James Michael White, even though he was under a domestic violence restraining order and was therefore prohibited from buying a firearm under federal law, and he truthfully filled out his purchase form stating that he was under a court order. Within two weeks of buying the shotgun, Mr. White used it to murder his estranged wife and her brother. The victims' families sued, and Wal-Mart agreed in settlement to pay $16 million to the 2-year old and 5-year old daughters of the slain Mrs. White. Even though Wal-Mart's conduct was illegal, it would be immune from suit at least under one of the federal bills.
  • White v. Smith & Wesson, 97 F. Supp. 2d 816 (N.D. Ohio 2000): The City of Cleveland sought damages and injunctive relief on the grounds that gun makers negligently sold guns without taking reasonable steps to prevent criminals and kids from obtaining them, and failed to implement reasonable life-saving safety devices and warnings. An Ohio federal district judge held that the gun makers could be liable under Ohio negligence, nuisance, and product liability law.
  • Boston v. Smith & Wesson Corp., 2000 WL 1473568 (Mass. Super. 2000): The City of Boston brought a similar case against gun makers and sellers, seeking damages and injunctive relief to abate the public nuisance caused by the gun industry's negligent design and sale of guns. A state trial court denied defendants' motion to dismiss, and the Court of Appeal refused to grant an interlocutory appeal of that decision.
  • People, et. al. v. Arcadia Machine & Tool, Inc., No. 303 753, BC 210 894, BC 210 784 (Sup. Ct. Cal., County of San Diego 2000): Twelve California cities and counties, including Los Angeles, San Francisco, and Sacramento, sued gun makers and sellers for violations of California's Businesses and Professions Code and creating a nuisance. The state trial court denied defendants' motion to dismiss.
  • Other examples: Sting operations in Chicago, Gary, and Detroit found that many gun dealers apparently sell to "straw purchasers," despite knowing that the gun is intended for a felon. Not only is this apparently actionable negligent conduct by the dealers, but it is claimed that distributors and manufacturers negligently continue to supply these dealers even after learning of their irresponsible practices. Under immunity bills, victims of this misconduct would be left without a civil remedy.

Existing ABA Policy

Dating back to 1965, the ABA House of Delegates has repeatedly called for tougher law enforcement in the area of gun crimes, noting on repeated occasions that weak laws regulating gun dealers, gun sales and ownership needed to be strengthened for our system of laws to be enforceable. In August 1994, the House of Delegates approved a comprehensive recommendation that called for an end to the unique status of guns as the only consumer product manufactured and sold in the United States without any consumer product safety oversight, based on the gun industry's clout in carving out an exemption from safety regulation under the federal Consumer Product Safety Act. The ABA in 1994 further supported enactment of requirements that gun manufacturers equip all future guns with proven existing safety features, including gun locks and load indicator devices. The 1994 Recommendation also supports a range of steps to require a higher standard of accountability for gun dealers including: providing that Federal Firearms Licenses be limited to bona fide firearms dealers; require compliance with state and local laws; maintaining adequate business liability insurance; thorough background checks of employees; gun sales limited to the location of the licensed premises, and an increased number of permissible yearly inspections.

The ABA House of Delegates has approved two recommendations regarding tort law policy related to this recommendation. In February 1996, the HOD approved a recommendation brought forward by the Tort and Insurance Practice Section supporting expansion of civil remedies for victims of gun violence. It provides:

RESOLVED, That the American Bar Association supports the right of victims of gun violence to seek private redress, and supports legislation to:
1. Amend the Gun Control Act of 1968 to provide a private cause of action, with concurrent state and federal jurisdiction, for those persons sustaining injury or laws to provide civil claims for relief for those persons sustaining injury or damage as a result of violation of the Act.
2. Adopt and extend state and territorial laws to provide civil claims for relief for those persons sustaining injury or damage as a result of the violation of state, territorial or municipal laws regulating the use, sale, possession, license, ownership or control of firearms and ammunition.

The House of Delegates, as part of a broader recommendation, approved in August 1983 the following recommendation language:

BE IT RESOLVED, That the American Bar Association opposes enactment of broad federal legislation that would codify the tort laws of the 50 states as they relate to product legislation ... that would attempt to do so.

While these two recommendations are broadly inconsistent with the approach taken in proposed gun industry immunity legislation, neither directly addresses legislation voiced apparently narrowly in terms of a federal preemption of state product liability laws in regard to a single industry, or the question of legislation to create state or federal immunity for that industry from suits based on negligence. For these reasons, further ABA policy is needed in order to voice opposition to this legislation.

Conclusion

Should those who make and sell guns be given a special exemption from common law principles of negligence, nuisance and product liability that apply to manufacturers and sellers of all other products? Should persons who believe that they have been injured as a result of tortuous conduct by the gun industry be deprived of their rights to have the courts determine whether the law entitles them to compensation? Or should legislatures prohibit the courts from determining whether allegedly negligent gun sellers and manufacturers should be liable under the common law?

The gun industry's legislative clout has prevented laws from regulating much of its conduct, and made guns the only consumer product (other than tobacco) exempt from federal safety oversight. Thus, unlike other products, guns cannot be recalled by the federal government when they are unreasonably dangerous or lack feasible safety devices. Of course, the fact that the gun industry has been able to prevent the enactment of legislation and regulation governing like that of all other consumer products in the United States does not exempt it from liability under common law principles of negligence, nuisance, or product liability. If anything, lack of regulation makes the role of civil suits all the more fundamental to a system that is devoted to achieving individual jus­ tice and important to maintain sound public policy and laws that encourage the industry to behave responsibly and with regard to public safety.

The ABA should support the historic, traditional role of the courts in making case-by-case determinations of whether civil tort claims are well brought. This role of the courts is at the heart of our civil justice system. There should be uniform agreement that it is up to the courts to determine whether the gun industry or any other industry is liable under applicable state common law within the context of a given set of facts. There is no legitimate reason why this industry should be exempt from the same common law principles that govern all other industries and their practices, through negligence, nuisance, and product liability law. Nor is there a legitimate reason why in­ nocent persons injured as a result of tortious conduct by gun manufacturers and sellers should be denied their opportunity to seek redress in the courts, simply because they were injured by a negligently-designed or negligently-sold gun, rather than, say, a negligently-designed toaster oven, lawnmower, or automobile. Raw political power exercised to create special laws for a particular industry makes for unsound public policy and bad precedent for the future. The ABA should voice its strong support for the protection of the civil rights of injured citizens and for the authority and competence of the judiciary to resolve civil cases, and against these special interest immunity bills.

Respectfully submitted,

ROLAND L. COLEMAN, JR.
President
Los Angeles County Bar Association