California Forum

Why shouldn’t the gun industry be liable for damage done by its products, just like anybody else?

A semi-automatic rifle outfitted with a “bump stock” was used in the Las Vegas massacre. (AP Photo/Rick Bowmer)
A semi-automatic rifle outfitted with a “bump stock” was used in the Las Vegas massacre. (AP Photo/Rick Bowmer) AP

It is time to stop giving the gun industry special protections that are not accorded to other businesses. In 2005, Congress passed the Protection of Lawful Commerce in Arms Act which prevents gun companies from being sued by the victims of gun violence.

The NRA got it right when it called this “the most significant piece of pro-gun legislation in twenty years.” No other industry enjoys this special treatment.

The massacre in Las Vegas occurred because gun companies make semi-automatic weapons that are easily converted into automatic weapons that can kill large numbers of people in a short amount of time. Gun manufacturers take automatic military weapons like the M-16 and modify them into legal, semi-automatic weapons, like the AR-15.

The NRA got it right when it called the PLCAA ‘the most significant piece of pro-gun legislation in twenty years.’

They can be turned back into automatic weapons, through bump stocks or other techniques that are described on many websites. Ammunition magazines with large capacity are manufactured that serve no purpose for hunting or sport.

If gun companies could be held liable the way all other manufacturers can be sued, they would not make such products or they would do far more to ensure the weapons could not be used for mass killings. But the 2005 Act dismissed all pending claims against gun manufacturers in both federal and state courts and preempted all future claims.

The Act could not be clearer in stating its purpose: “To prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm caused solely by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.”

There are some narrow exceptions where liability is allowed, such as for actions against transferors of firearms who knew the firearm would be used in drug trafficking. But otherwise gun companies are immune from liability.

In October 2016, a Connecticut Superior Court judge dismissed a lawsuit filed by the families of some victims of the 2012 Sandy Hook Elementary School shooting against the manufacturer, the wholesale distributor, and the retailer of the semi-automatic rifle used in the shooting. Adam Lanza used an AR-15 rifle, a weapon initially made for the military, to kill 20 schoolchildren and their teachers in a small town in Connecticut in 2012.

Judge Barbara Bellis dismissed the suit by the families of the victims and said that it “falls squarely within the broad immunity” provided to gun manufacturers and dealers by the Protection of Lawful Commerce in Arms Act.

Congress should repeal this unfair law and allow the victims of gun violence to have their day in court. Today, gun companies are allowed to design weapons that can be easily converted into weapons of mass destruction and distribute them freely without having to worry about the destructive consequences of the weapons they put on the streets.

Before the passage of the gun industry protections, courts could hold gun companies responsible for the safety of their products. In March 2000, Smith & Wesson, one of the nation’s largest gun manufacturers, adopted a robust set of safety controls on their handguns as part of a settlement to a major lawsuit brought by a coalition of mayors. If those injured can bring lawsuits against the gun companies, these businesses will make safer products and be more careful about how they distribute them.

Tort liability exists to spread the costs of a product among all of its users and also to create incentives to make the product safer. The 2005 Act undermines this by providing gun companies sweeping immunity from liability.

During her campaign for President, Hillary Clinton urged a repeal of this law and she made a point during the primaries of noting that Bernie Sanders had voted for it. Among the other yes votes were a number of California representatives still in Congress, including Democrats Mike Thompson and Jim Costa, and Republicans Devin Nunes, Ed Royce, Ken Calvert, Dana Rohrabacher, Darrell Issa and Duncan Hunter.

How many more tragedies and how many more deaths will it take before politicians are willing to stand up to the gun lobby and take meaningful action to get rid of weapons that serve no purpose but to kill many people quickly?

Until this happens, at the very least, Congress should end the special immunity that only gun manufacturers have been granted.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be reached at echemerinsky@law.berkeley.edu.

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