If you have been following the presidential campaign, you have undoubtedly heard talk about the issue of gun manufacturer liability. Under the current state of the law, gun manufacturers are immune from suit except under special circumstances. With the number of mass shootings in recent years and the press coverage surrounding the lawsuit filed against Remington by the families of Sandy Hook victims, the issue of gun manufacturer liability has understandably been one of the hot button variety. How a person feels about gun manufacturer liability is often co-mingled with the much broader (and often politicized) issue of gun control and the Second Amendment. But, we here at Abnormal Use must ask the question: How does gun manufacturer liability stand up when stripped away of its political overtones?
To set the stage, today’s issues involve the Protection of Lawful Commerce in Arms Act (“PLCAA”), signed into law by President George W. Bush back in 2005. The PLCAA affords gun manufacturers and sellers immunity in state and federal lawsuits. The immunity, however, is not absolute. For example, there is no immunity in cases in which the seller knew the gun would be used in a crime, the gun buyer was obviously unfit to own a gun, the sale violated the law or the injury resulted from a manufacturing defect. Proponents of the PLCAA claim that the law is necessary because manufacturers should not be held responsible when a rogue gunman misuses the product. Opponents argue that the law provides manufacturers free rein to market and distribute guns like “assault rifles” that needlessly endanger the public.
Admittedly, we can understand both sides of the issue. On the one hand, holding gun manufacturers liable for the misuse of non-defective products appears to defy basic product liability principles. Product liability typically rests on three theories (1) defective design, (2) manufacturing defects, or (3) failure to warn. If a person uses a product for a malevolent purpose, but the product is free of defects, then in most instances the manufacturer would be free of liability. If the product is defective and the defect results in injuries, then the manufacturer may be liable. The PLCAA recognizes this and contains an exception to immunity for defective guns. Guns like “assault rifles” are currently legal to sell, own, and possess. In some ways, holding a manufacturer liable for the crimes of others would be akin to holding Cutco liable for a knife attack or Louisville Slugger for an assault involving a baseball bat. On the other hand, guns like assault rifles are different than a kitchen knife or a baseball bat. The AR-15, the gun used in the Sandy Hook shootings, is a military grade assault weapon marketed to civilians. While technically legal, the weapon, unlike a kitchen knife or a baseball bat, arguably is not fit for any reasonable civilian use and needlessly endangers the public.
Josh Koskoff, the lawyer representing the Sandy Hook victims in the lawsuit against Remington, recently stated:
This case is about a particular weapon, the AR-15, and its sale to civilians. It has nothing to do with the firearms industry as a whole. The AR-15 is to guns what a tank is to cars — uniquely dangerous and not suitable to public use. The AR-15 was designed and manufactured for the military for the purpose of killing the enemy with maximum efficiency. The families’ lawsuit does not contend that Remington should be held liable simply for manufacturing the AR-15. Indeed, Remington and other manufacturers’ production of the AR-15 is essential to the military and law enforcement. But Remington is responsible for its choice to sell that same weapon to the public, and for highlighting the military and assaultive capacities of the weapon in its marketing.
While we do not necessarily agree with all of Koslkoff’s contentions, he makes an interesting argument. What do you think?