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Suing Gun Manufacturers: Hazardous to Our Health
March 1999
Bad Law: Banning Guns by Lawsuit
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"Courts have consistently held that questions concerning firearms' legality and availability are for legislatures to decide." "It is a well-established principle in tort law that manufacturers are not responsible for the criminal misuse of their products." "Courts have recognized that firearms are no different from many other potentially dangerous products." "In 1997 approximately 3,100 children age 14 and under dies in automobile accidents, 1050 drowns, 500 dies in bicycle accidents 700 died in fires, while fewer than 250 died from accidental gunfire." "A court dismissed the first case pursuing the public nuisance theory against gun manufacturers."
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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.
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.74Federal 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.
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
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
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
Bad Public Policy: Disarming Citizens
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"Public opinion polls show that only 16 percent of Americans favor banning handguns and fewer than 5 percent favor banning rifles." |
The Lott study on the impact of concealed carry laws confirms something policy analysts have long suspected: the increased risk or cost associated with crime due to liberalized gun laws discourages some violent criminals from committing further crimes. Other offenders either shift their criminal activities to areas where citizens are known to be less able to effectively defend themselves or shift from crimes of force such as armed robbery to crimes of stealth such as burglary.
The ultimate result of successful lawsuits against gun manufacturers would be to reduce access to firearms, thus making citizens less safe. Public safety would be impaired in less direct ways as well.99 In Philadelphia, Mayor Rendell's staff calculated that the cost of filing the city's lawsuit would have exceeded $1 million.100 There is no reason to think that Chicago's lawsuit will cost less - and under current law and judicial holdings it is unlikely to succeed, meaning public money and time that could have gone toward law enforcement will be wasted.
It also is unlikely that the gun industry would cease to produce and sell firearms, even if it were to lose in the courts. The general public supports gun use, according to public opinion polls that show only 16 percent of Americans favor banning handguns and fewer than 5 percent favor banning rifles.101
Instead, it is likely that the price of firearms would increase to cover expanded liability insurance coverage, sales monitoring programs and personalized gun safety technologies.102 Another possible outcome is that smaller gun manufacturers or those with slim profit margins would go bankrupt while more successful firms would survive, shifting from the civilian to the police and military gun markets.103 This also would drive up the cost of firearms to civilians.
Relatively affluent Americans would still be able to purchase guns for self-defense and sport, while the urban poor (typically minorities), who already suffer the most from criminal depredation, would not. The poor experience nearly twice as much violent crime as do others.
- Inner-city residents are approximately 33 percent more likely to suffer
a violent crime than suburban residents and 40 percent more likely than
rural residents.
- Blacks, who make up a disproportionate share of the population of large urban areas, are three times as likely as whites to be robbed and twice as likely to suffer aggravated assault, and they make up half of all murder victims although they represent only 12.6 percent of the population. 104
Thus higher gun prices would disarm precisely those individuals who are most likely to face violent crime and who would most benefit from easier access to guns and widespread gun ownership. 105
If gun makers either went bankrupt or virtually ceased civilian production, the value of guns would increase and the black market in firearms would grow. The law allows private citizens to sell some or all of their guns without regulation as long as theirs is not a regular business enterprise. As gun values rise, private sales of firearms would likely increase, with some people amassing entire arsenals "off the books." In addition, the higher prices that guns would fetch on the black market would make gun thefts more profitable and thus more likely. Since retail firearms sales to private citizens currently subsidize the cost of guns to local police, federal agents and the military, the price of guns to law enforcement and military personnel would increase.