Suing Gun Manufacturers: Hazardous to Our Health

Policy Reports | Crime | Government | Regulations

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

Securing Citizen Access to Firearms

Despite the strong evidence that guns provide a net social benefit, more municipalities seem intent on filing suit against the gun industry in the future. Is there a way to head off these lawsuits? Both legislative and judicial options may exist.

Tort Reform. To stem the rising tide of product liability lawsuits, during the last decade state and federal legislators have considered bills that seek to reduce the number of frivolous suits and punish litigants who file such suits. During 1997 and 1998 Congress considered several bills that would reform the tort liability system. For example, proposed legislation would have limited the liability of small business by capping punitive damage awards at $250,000 or no more than two times the amount awarded in compensatory damages, whichever was less.106 In addition, federal legislation would have limited attorneys' fees and instituted a "loser pays" principle whereby unsuccessful plaintiffs would have to pay the defendant's trial-related costs.

The American Bar Association and the nation's trial lawyers successfully lobbied to derail federal legislation. Their lobbying efforts were bolstered by those of such antigun groups as the Violence Policy Center. Antigun organizations demanded that the firearms industry be exempted from the legislation's provisions, comparing the exemption they sought to the exemption of the tobacco industry contained in the bill.

"Only five states thus far have enacted comprehensive product liability reform laws and these laws are being challenged in the courts."

In contrast to federal efforts, state tort reform efforts have been relatively successful. The American Tort Reform Association claims that 45 states and the District of Columbia have enacted at least some of its legislative proposals during the past decade - though only five states have thus far enacted comprehensive product liability reform and these reform laws are being challenged in the courts.

Until recently the National Rifle Association (NRA), the largest gun rights education and advocacy organization in the nation, had been silent on the progress of the public gun lawsuits.107 But the NRA recently announced its intention to mount a full-scale lobbying campaign in Congress and in key states to preempt the lawsuits. The NRA's efforts will focus on reviving product liability legislation, limiting the fees that cities can pay to attorneys and enacting state constitutional provisions limiting the ability of cities to sue gun makers.

In the NRA's favor is its long and successful history of helping politicians who support its legislative agenda. In addition, it has been a prime force behind the enactment of liberalized concealed carry laws. The NRA also has lobbied for state firearm preemption laws prohibiting cities from passing local ordinances that limit the sale or possession of firearms. The NRA's efforts have already borne fruit. In February 1999 the Georgia Legislature passed a bill blocking lawsuits by Georgia cities against the firearms industry, and Governor Roy Barnes signed it.108

At the federal level, it is doubtful that product liability and tort reform legislation helpful to the firearms industry will be enacted, since the Clinton administration has vowed to veto such bills. Efforts might be more successful at the state level. However, in states like Illinois, California and Massachusetts, where public opinion favors much stricter gun control and legislatures historically have been hostile to the firearms industry and consumers, it seems unlikely that the NRA's efforts will succeed.

"Countersuits would serve notice that the public opposes attempts at restricting access to guns."

Countersuits. Another option would be for the public to file countersuits on the grounds of public safety. Courts have held that the government is not legally obligated to protect individuals but is instituted to secure public order and safety. Absent a police state with an officer in every household, the police could not protect every citizen even if they were obligated to do so. In view of the proven effectiveness of guns as both a personal defense against and a general deterrent to crime, if city officials successfully restrict access to guns, they will reduce public safety and abet criminals.

Therefore, the general public and crime victims might join in class action suits against those officials. Under the common law, when private citizens take actions that threaten the public's health or welfare, courts can enjoin the actions and require compensation for those harmed. Public officials should be held to the same standard, if not a higher one.

As a rule, public officials cannot be sued for their legislative and administrative actions, and federal, state and city governments have sovereign immunity, exempting them from lawsuits unless they specifically waive the privilege. Thus class action suits might be unsuccessful. However, they would serve notice that the public opposes attempts at restricting access to guns that place citizens at risk but do nothing to prevent criminals from getting guns or to reduce crime.

Already one such suit has been announced. In December 1998 the Second Amendment Foundation, a gun-owner advocacy and education organization, notified the U.S. Conference of Mayors that it was sponsoring a "damage action" suit brought by 12 constitutional law professors against the cities of Chicago and New Orleans for "conspiracy to violate civil rights, abuse of process and undue burden on interstate commerce."109 In addition, in Wyoming a conference report has been approved on a bill that would encourage the state attorney general to intervene on behalf of gun manufacturers and dealers in liability lawsuits.110

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