How Gun Makers Won Protection from Lawsuits

Congress gave gun manufacturers what other industries can only dream about: near-complete immunity to product liability litigation.

, The American Lawyer

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Last spring, in the wake of the shocking murder of 20 schoolchildren in Newtown, Connecticut, a bill that would have required background checks for all commercial sales of guns came up for a vote in the U.S. Senate. Already, in the weeks and months after Sandy Hook, brave talk of reinstating a ban on semiautomatic "assault" weapons, limiting magazines, or establishing a national registry of gun owners had proved to be a liberal fever-dream. But the Senate bill, introduced by Democrat Joe Manchin of West Virginia and Republican Pat Toomey of Pennsylvania, would simply have extended federally required background checks of gun buyers to gun show and Internet sales, not just purchases from dealers. Still, the bill failed: A majority of senators voted in favor of it—54—but 60 votes were needed to overcome a threatened GOP filibuster.

The bill wasn't completely one-sided. It included a carrot to private-show gun sellers in exchange for the more onerous background-check obligation: the same immunity from civil suits that had been granted to pretty much the rest of the gun industry eight years ago. Including that provision was a sign of just how entrenched the industry's protections have become. Amid the potential responses to the Newtown shootings floated on Capitol Hill, few members even mentioned repealing or scaling back the 2005 law that largely shielded gun manufacturers and dealers from lawsuits and resulted in several large-scale suits against the industry being thrown out.

The 2005 law, dubbed the Protection of Lawful Commerce in Arms Act, was passed at a time when gun makers found themselves newly vulnerable to judges and juries. Victims of gun violence, along with gun control advocates, were beginning to make headway in court against an industry that they argued exerted too little control over the product it sent to the marketplace. The federal government, through the U.S. Department of Housing and Urban Development; states such as New York; and cities such as Chicago, Cincinnati, Miami, and New Orleans filed suits contending that the flood of cheap handguns on the streets constituted a public nuisance or that the guns themselves had been defectively designed.

Trying to ward off liability, gun makers agreed to a host of new safety requirements; it seemed as though they were cornered in a way that Big Tobacco had been years earlier. But the gun industry—backed by other business lobbies—fought back. States such as Louisiana and Ohio passed immunity laws, eliminating lawsuits outright.

Still, the industry's alarm grew when the maker of the semi-automatic rifle used in the 2002 D.C. sniper shootings, Bushmaster Firearms International LLC, agreed in 2004 to settle a case brought by the families of six of the victims of shooters John Lee Muhammad and Lee Boyd Malvo. The plaintiffs contended that Bushmaster knowingly sold guns to a dealer with a history of loose controls over inventory, creating a foreseeable risk that one of the guns would be used in a crime. (In settling, Bushmaster denied any liability.) At the same time, an appeals court in the District of Columbia upheld a District statute that gun makers could be strictly liable for killings involving their products, a ruling that threatened to unleash another tide of suits.

The industry petitioned the Bush administration for help. A letter in early 2005 from Beretta USA general counsel Jeffrey Reh to then–Vice President Dick Cheney didn't hesitate to mention the company's role in arming soldiers deployed in the conflicts in Afghanistan and Iraq. "The instrument to deprive U.S. citizens of the tools through which they enjoy their Second Amendment freedoms now rests in the hands of trial lawyers in the District," Reh wrote. "Equally grave, control of the future supply of firearms needed by our fighting forces and by law enforcement officials and private citizens throughout the U.S. also rests in the hands of these attorneys."

Republicans in Congress, who then controlled both chambers, sprang into action. Before long, the immunity bill, favored by the National Rifle Association and pro-business groups such as the U.S. Chamber of Commerce, was being debated on the Senate floor. A leading critic was Chris Dodd, a Democrat from Connecticut. "The idea that we would take an entire industry and give it immunity from wrongdoing is simply wrong, in my view," Dodd raged on the floor. "We are saying to this industry, if you act irresponsibly or wrongfully, and if you can foresee the consequences of your irresponsible or wrongful conduct, you do not have to worry about being held accountable for your actions."

The bill's Senate sponsor, Larry Craig of Idaho, a Republican, countered, "This debate has nothing to do with crime on the street. This has everything to do with frivolous lawsuits against law-abiding citizens." In July 2005 the bill passed the Senate, with 14 Democratic votes in support, including that of Harry Reid, the current majority leader. It cleared the House that October and was signed into law by President Bush. The legislation fit in neatly with the GOP's tort reform agenda. The same Congress saw the passage of a class action reform bill that gave federal courts greater jurisdiction over mass suits.

The firearms law gave the industry a shield that few if any others enjoy, according to Joanna Doroshow of the left-leaning Center for Justice & Democracy. (Medical device makers also enjoy immunity if their devices are approved by the Food and Drug Administration.) The mass tort suit against the industry was effectively dead. Moreover, courts interpreted the law to preempt the kind of negligence suit brought against Bushmaster after the Muhammad and Malvo sniper shootings and essentially ended any hope of effecting change through product liability suits. (Guns are also exempt from federal consumer safety standards.)

The Brady Center to Prevent Gun Violence, the longtime activist group, has had some success poking holes in the law by suing rogue dealers who have sold guns to so-called straw purchasers—those buying a gun to be used by another person, as well as dealers who have flouted the background check requirement. Those cases remain largely small-scale actions. Jonathan Lowy, who spearheads the group's legal strategy, contends that the suits have a vital impact, however. Only a small percentage of gun dealers nationwide are responsible for the overwhelming majority of guns used in crimes, Lowy says: "The price of facing us in court will change they way they do business." He argues that a suit could be brought, for instance, if a purchaser exhibits signs of violent behavior or mental illness, even if that purchaser passes a background check—a proposition that likely would be sorely tested in court.

What's being said

  • Alex Flig

    It is a shame that this article is written in such a lamenting tone. This is an opinion piece as much as it is factually (historically) based.

    The firearms industry was protected from unscrupulous lawsuits that would not be tolerated for virtually any other product. For example, would you expect Ford, Toyota and Mazda being sued for the actions of drunken drivers operating these vehicles? Would you expert baseball bat manufacturers being sued because thugs bash people with their products? Would you expect Ginsu to be sued for criminals stabbing people with their knives? Where does the liability end?

    The whole idea of suing firearms manufacturers for the MISUSE or CRIMINAL USE of their products is contemptible. This is a thinly veiled "back-door" attempt to curtail Second Amendment protections under the guise of preventing misuse and criminal use of firearms (or anything else for that matter) by attacking the instrumentality rather than the perpetrator/misuser.

    It is shameful that we have stooped to the point of blaming metals, woods, plastics and minerals for the actions of people. When did the focus of responsibility in this country shift from (allegedly) thinking PEOPLE, to inanimate instrumentalities that are powerless without those (allegedly) thinking people using them?

    I am completely agreeable to a frank and open discussion regarding the role of the Second Amendment in our modern times. I am not open to its murder through a thousand cuts.

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