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Commentary

Gun-Liability Lawsuits Aim At the Wrong Target


     
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On July 1, 1993, Gian Luigi Ferri entered the San Francisco offices of the law firm of Pettit & Martin carrying three firearms, including two TEC-DC 9s made by Navegar, Inc. After a violent rampage in which he killed eight people and wounded six others, Ferri shot and killed himself. While Ferri escaped criminal prosecution, the Center to Prevent Handgun Violence has filed civil lawsuits on behalf of the victims of Ferris' violent rampage against Navegar, USA Magazines, and a Nevada gun store.

This civil case, to be heard in California Superior Court later this year, is the latest attempt to hold gun manufacturers liable for harm caused by others’ misuse of their products. While some gun-control proponents believe this would help control crime, closer examination reveals that forcing the tort law system to serve double duty would only diminish its ability to serve justice. More importantly, it would create new injustices: Widening the liability net would ensnare the morally innocent and erode the crucial distinction between responsible and irresponsible behavior that is the bedrock of American jurisprudence.

So far, the courts have ruled that it is the misuse of the firearm, not the act of manufacturing and selling it, that is the cause of harm. Despite numerous attempts by victims of gun-related violence, except in one Maryland case (Kelley v. R.G. Industries), no state or federal court decision holding firearms manufacturers liable for others’ misdeeds has been upheld.

The courts recognize that there is little that gun manufacturers can do, short of eliminating their products from the market, to prevent criminal acts. And even if firearms are driven from the legal market, a black market would likely continue to funnel guns to criminals. Thus, under a traditional products liability theory, there is little reason to hold manufacturers strictly liable for injuries caused by the misuse of firearms that are neither negligently produced nor defective in design.

Another argument for imposing liability on gun manufacturers is to fund the compensation of crime victims. Since the criminal is judgment proof, law-abiding gun owners then become the targeted source of compensation.

But why is it rational to place the financial burden on law-abiding firearms owners who have not misused firearms? If the litigation explosion has taught us anything, it is that using the tort system to provide social insurance entails large (and largely hidden) premiums —usually in the form of less output and less justice. Like other "sin" taxes imposed on innocents to pay for the harms done by others, a gun liability tax would bear less resemblance to a sharpshooter's precision aim at the guilty than to the indiscriminate spray of a sawed-off shotgun, randomly hitting innocent bystanders caught in harm’s way.

Should an exception be made for certain types of firearms used predominately in crime and/or which are particularly dangerous, as the plaintiffs in this case charge? The problem here is that firearms identified as belonging to a suspect classification often are indistinguishable from many other functionally identical firearms. For example, the Kelley court relied upon the erroneous assumption that "Saturday Night Specials" (generally defined as low caliber, low cost firearms) were particularly suitable for criminal activity and generally unfit for legitimate uses." But, in fact, such firearms are not disproportionately used in crime, and most handguns used in crime would not be classified as "Saturday Night Specials."

The case against so-called "assault weapons" is even weaker. According to Superior Court Judge James L. Warren, "assault weapons" like the TEC-DC 9 named in the lawsuit were specifically singled out by the California Legislature as a threat to the health, safety, and security of Californians when it passed the Roos-Roberti Assault Weapons Control Act of 1989.

But the special effort to restrict "assault weapons" is misplaced. Contrary to popular claims, firearms classified as assault weapons are rarely used in crimes. Estimates based on the FBI Uniform Crime Reports and other police statistics suggest that assault weapons are used in less than 1 percent of all violent crimes. Nor are these firearms "more deadly." The TEC-OC 9, for example, is functionally identical to hundreds of 9mm semi-automatic pistol models not classified as "assault weapons." The "firepower" of a TEC-DC 9 can be matched or exceeded by putting an extended ammunition magazine in a standard pistol, or by simply carrying two 9 mm pistols (which would be more concealable).

Such failures of "assault weapons" laws are not surprising. Both Roos-Roberti and the 1994 Federal Crime Bill defined "assault weapons" based on the presence of stylistic features such as a bayonet lug, pistol grip, or flash suppresser, rather than their function or evidence of predominant use in criminal activity. Navegar and others have continued to manufacture and sell functionally identical firearms simply by removing or altering the offending stylistic features and renaming the firearm.

Often the only difference between a legal firearm and an illegal "assault weapon" can be that the former has the bayonet lug ground off. This reflects not the allegedly anti-social tendencies of firearm manufacturers, but the stupidity of a law based on cosmetics rather than substance (unless, of course, the legislative intent was simply to reduce bayonet-inflicted injuries). The court in this case should follow the sensible actions of previous courts that focus on those genuinely responsible for criminal acts.

This was the judgment of the California State Legislature when it enacted California Civil Code (Section 1714.4), which has codified these court precedents rejecting gun manufacturer liability. If the law is followed, it is unlikely that the plaintiffs will ultimately prevail.

Any other outcome will do little to curb crime. Further, allowing these suits to go forward will strain the nation’s already overtaxed tort law system and will divert attention away from sensible public policies, such as right-to-carry laws recently enacted in dozens of states, which focus on how society can benefit from the efforts of responsible citizens rather than erroneously punishing them for the criminal acts of others.


Bruce H. Kobayashi is an associate professor of law at George Mason University in Virginia and a research fellow at the Independent Institute in Oakland.






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