Suing Gun Manufacturers: Hazardous to Our Health

Policy Reports | Crime | Government | Regulations

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

Bad Law: Banning Guns by Lawsuit

Figure IV - Accidental Dealths of Children Age 14 and Under%2C 1997

Until the Hamilton decision, except for cases where materials had been shown to be inferior or workmanship shoddy, gun manufacturers had defended themselves successfully against product liability lawsuits. Of approximately 40 lawsuits against gun makers during the past 20 years (most in the last decade) involving cases in which guns functioned properly, only two made it to trial. One was successful, but its effect was later negated by the state legislature.73

Why have lawsuits against gun manufacturers been so unsuccessful in the past? And is anything different about the lawsuits discussed here that might make them more likely to succeed? While each case discussed in this study presents unique arguments by plaintiffs trying either to create new, enforceable manufacturer duties or to extend standard tort law theories in novel ways, they are just as unlikely as past lawsuits to succeed on the merits. The courts are likely to remain disinclined to usurp the legislative function or to destroy existing tort law principles.

"Courts have consistently held that questions concerning firarms' legality and availability are for legislatures to decide."

Asking the Courts to Legislate. The lawsuits discussed here ask the courts to substitute their judgment for the public's, as expressed through state and national legislatures. In past federal and state gun lawsuits, however, courts have consistently held that questions concerning firearms' legality and availability are for legislative assemblies to decide.74

Federal courts have been nearly unanimous in ruling against the notion that the courts should legislate gun policy. For instance:

  • In Wasylow v. Glock, Inc., the court said, "It is the province of legislative or authorized administrative bodies, and not the judicial branch, to advance through democratic channels policies that would directly or indirectly either (1) ban some classes of handguns or (2) transform firearm enterprises into insurers against misuse of their products. Frustration at the failure of legislatures to enact laws sufficient to curb handgun injuries is not adequate reason to engage the judicial forum in efforts to implement a broad policy change."75
  • In Martin v. Harrington & Richardson, Inc., the court stated, "Imposing liability for the sale of handguns, which would in practice drive manufacturers out of business, would produce a handgun ban by judicial fiat in the face of the decision by [the legislature] to allow its citizens to possess handguns."76
  • In Delahanty v. Hinckley et al., the court ruled that, "[W]hat is really being suggested by plaintiffs, . . . is for this Court, or courts, to indirectly engage in legislating some form of gun control.... [H]owever, . . . such legislation should be left to the federal and state legislatures which are in the best position to hold hearings and enact legislation which can address all of the issues and concerns as well as reflect the will of the citizens."77

State courts also have been loath to usurp their legislatures' lawmaking authority. For instance:

  • In Lovett v. Sturm, Ruger et al., the Michigan Circuit Court ruled, "Not only would the application of this theory of strict liability be contrary to case law but it would also be forcing the court to trespass on the lawmaking territory of the legislature. The sale, registration, and use of firearms in this country is an area highly controlled by both state and federal firearms statutes. This court declines to become involved in an activity better left to those in Lansing."78
  • The Georgia Court of Appeals in Rhodes v. R. G. Industries, Inc., stated, "The enactment of comprehensive licensing provisions for suppliers and purchasers of handguns is indicia that the legislature is not inclined to ban the use of such weapons, and that legislators do not feel that the marketing of handguns to the public is an unreasonably dangerous or socially unacceptable activity. We must conclude that the General Assembly does not intend to control further the manufacture, distribution or use of handguns. This court is prohibited from altering the status quo since the legislature's present position is within constitutional limits."79
  • In Richardson v. Holland et al., the Missouri Court of Appeals decided, "Whether or not the individuals on this court, if members of the legislature, would vote to ban the manufacture or impose strict liability upon the manufacture of Saturday Night Specials [i.e., cheap, easily concealed handguns] is immaterial.... [T]he plaintiff's petition does not, under judicial or common law principles, state a cause of action in strict liability or negligence against F.I.E. This court cannot create one by judicial legislation."80

It is clear that the lawsuits considered in this study, especially in the Hamilton case filed by Elisa Barnes, call for judicial lawmaking. Ms. Barnes requested Judge Weinstein because of his proclivity for making novel judicial law, and she fought successfully against having him removed when his standing to hear the case was challenged by the defendant gun manufacturers.81

To this point, the courts have recognized that further erosion of the separation of powers between the legislative and judicial functions of government is not in the country's long-term best interest.

"It is a well-established principle in tort law that manufacturers are not responsible for the criminal misuse of their products."

Destroying Sound Tort Law Principles. The suits against the gun makers also would reverse a well-established principle in tort law: manufacturers are not responsible for the criminal misuse of their products. If this principle is discarded, the courts will be crushed under the weight of new lawsuits and it will not be long before extremists among us try to use the law to shut industrial civilization down. Should automobile makers be held responsible for vehicular homicides committed by drunken drivers or people in the grip of road rage? Criminals also use knives, prescription drugs and household products to commit crimes. Should courts hold the manufacturers of these products at fault?82 Where will the lawsuit parade end?

The courts are fully aware of the potential difficulties posed if manufacturers are held responsible for the criminal misuse or negligent use of nondefective products. Accordingly, they have thus far rejected attempts to alter tort law to single out and punish the firearms industry.

The state of Massachusetts' Continuing Legal Education program recently included a seminar entitled "Gun Litigation." Attorney Anne Kimball argued that attempts to impose liability on firearms manufacturers either because of the inherent nature of the product or its distribution would fail.83 Ms. Kimball detailed three legal arguments raised against firearms manufacturers, all of which the courts have thus far uniformly rejected.

  • First, firearms manufacturers' products are defective because they are inherently dangerous,84 they function as intended85 or they have characteristics that make them desirable and effective (e.g., they are inexpensive, easily concealed and fire when the trigger is pulled).86
  • Second, firearms manufacturers fail to warn of the dangers inherent in firearms use and from misuse.87
  • Third, firearms production and distribution is an abnormally dangerous activity88 or firearms are distributed negligently.89

"Courts have recognized that firearms are no different from many other potentially dangerous products."

In short, the courts have recognized that firearms are no different from many other potentially dangerous products. They are legal, every reasonable person knows that if misused they are dangerous (the general opinion of the courts could be summed up as "everybody knows that guns are dangerous") and their sale and marketing are regulated by federal and state governments. Indeed, with more than 240 million firearms in circulation, accidental firearms injuries and deaths are far from "foreseeable" (as claimed in the New Orleans lawsuit) when compared to problems caused by other products in common use. According to the National Safety Council, fewer people die from accidental shootings than from automobile accidents, drowning, burning or smoke inhalation, choking to death or medical misadventures. Though misuse of their products costs thousands of lives each year, neither car dealers nor knife retailers are required to go through a federal licensing procedure that includes providing fingerprints, submitting to a personal history background check and showing proof that certain product storage and inventory mandates are met. Though the news media often publicize accidental firearms injuries to children, far fewer children are injured in the shooting sports than are injured playing any of the major team sports, or even competitive sports not normally considered hazardous - table tennis, for example. In addition, in 1997 approximately 3,100 children age 14 and under died in automobile accidents, 1,050 drowned, 500 died in bicycle accidents and 700 died in fires, while fewer than 250 died from accidental gunfire.90 [See Figure IV.]

Requiring manufacturers to monitor the sales of guns beyond initial retail sales poses potential privacy concerns. Furthermore, there is no legal justification for imposing higher standards for gun marketing and sales than already exist or are imposed on other product manufacturers.

Courts in both New York and Illinois (the states where Hamilton, City of Chicago and Young were filed) have already ruled in previous cases on most of the contentions made by the plaintiffs in the lawsuits under way.91 Among the rulings:

  • "[T]o impose a legal duty here would create limitless liability. This would be inappropriate because . . . the gun/ammunition manufacturer has no control over the actions of a criminal whose goal might be to randomly kill or seriously injure innocent people."92
  • "New York does not impose a duty upon a manufacturer to refrain from the lawful distribution of a nondefective product."93
  • "Plaintiffs allege that based on the large number of injuries and deaths resulting from the use of handguns to commit crime, criminal misuse was foreseeable and the defendant handgun manufacturers and distributors were negligent in marketing its handguns to the general public . . . [and] that the defendant handgun manufacturers and distributors had a duty to determine whether its retailers had taken all reasonable measures to screen prospective purchasers and a duty to terminate sales to those retailers the defendants knew or had reason to know had a history of sales to persons who had used its handguns in crime. . . . [T]here is no basis for imposing common law negligence upon a handgun manufacturer for injuries sustained by the victims of illegal handgun violence."94

"A court dismissed the first case pursuing the public nuisance theory against gun manufacturers."

This leaves only the novel claim that guns are a public nuisance.95 Recently the courts have provided some guidance on this type of claim. Bubalo et al. v. Navegar, Inc., was the first case to pursue the public nuisance theory against gun manufacturers.96 The court dismissed the case, citing the previous court decisions that manufacturing handguns was not in itself an ultrahazardous activity, that there could be no liability for merely manufacturing dangerous products and that the marketing and sale of handguns was also not dangerous activities. Since no injury is the direct result of the manufacture or sale of the firearms, the court concluded that the public nuisance claim was mistaken. Nevertheless, David Kairys and Mayor Rendell reportedly used the case as the model for their possible public nuisance lawsuit.

The cases discussed in this study provide no new basis in law for making gun manufacturers insurers against the misuse of their products via the judiciary.97 But even if a legal basis could be found, holding manufacturers responsible for gun violence and misuse would be unsound public policy.98

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