Suing Gun Manufacturers: Hazardous to Our Health

Policy Reports | Crime | Government | Regulations

No. 223
Monday, March 01, 1999
by H. Sterling Burnett

Appendix I: The New Orleans Suit

In a surprise move on October 30, 1998, Marc Morial of New Orleans became the first mayor to file a lawsuit against gun manufacturers, retailers and wholesalers.111 The suit claims that gun manufacturers should be held financially responsible for the health and policing cost of gun violence. However, in a number of ways it differs from other lawsuits mentioned in this study. First, although it was brought in the city's name, it is being financed and litigated entirely by antigun activists at the Center to Prevent Handgun Violence and several prominent trial attorneys involved in nationwide tobacco litigation. Because the attorneys are working on a contingency fee basis,112 no public funds will be spent - avoiding the problem of diverting limited public funds from important social goals. Second, rather than claiming that guns are a public nuisance, the lawyers argue that guns as they currently are manufactured are unreasonably dangerous in design and thus run afoul of Louisiana's product liability law. The lawsuit is based on an unfounded supposition: that gun makers have suppressed the introduction of safety devices which would prevent unauthorized users from firing guns.

Except when there were clear design flaws, faulty workmanship or inferior materials, lawsuits against gun manufacturers arguing that guns are unreasonably dangerous have been brought many times in the past and have failed. Unlike tobacco, to which guns have been compared, firearms are not dangerous when used responsibly. The courts have noted that upholding claims against gun makers would be tantamount to banning certain types of firearms and would put courts in the position of establishing public policy - a job more appropriate to legislatures.

The New Orleans lawsuit alleges that the gun industry has willfully kept safety devices off the market, making firearms unreasonably dangerous. This argument is problematic for a number of reasons. One type of safety device, a trigger lock, is widely available to the general public. Gun manufacturers have not suppressed the development or sale of trigger locks, but many gun owners have been unwilling to purchase or use them and state and federal governments have been unwilling to mandate their use.

However, trigger locks seem not to be the goal of the gun control activists and lawyers pushing the New Orleans suit. They apparently want more personalized, "smart gun" devices like those currently under development at several gun companies. For instance, Colt is attempting to construct a personalized safety device that would allow a gun to fire only when activated by a signal sent out by a computer chip contained in a ring or bracelet worn by the owner. But high-tech devices like the ones under development at Colt are still years away from general use. Even after they are fully developed they will have to be tested for safety and reliability before they are sold to the public.113 At this point, marketing them would be irresponsible - and would open firearms makers to standard liability lawsuits.

In addition, Kristen Rand of the antigun-ownership Violence Policy Center points out that, as a practical matter, the theory of inadequate safety could be "unwieldy to prove because there are so many different types of guns and different types of potential safety devices."114 Gun safety devices are one area of technology where a one-size-fits-all mandate likely would cause more harm than good.115

That the police do not trust these technologies to work as advertised is obvious: in states where smart gun legislation has been considered, police have requested and received exemptions from the proposed laws. If the police are not mandated to use an unproven technology, why should citizens be?

As a matter of policy and law, legislators and consumer product safety regulatory agencies will determine if and when safety devices are viable and safe enough to merit mandated inclusion on firearms. Judges have neither the expertise nor the authority to make such determinations. Accordingly, they routinely have deferred to those who do have such specialized knowledge or authority. To take any other position would be irresponsible.116

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