It’s not legislation.
About the author: Kimberly Wehle is a law professor at the University of Baltimore. She is the author of How to Think Like a Lawyer—And Why: A Common-Sense Guide to Everyday Dilemmas and What You Need to Know about Voting—And Why.
Even if Congress does manage to pass gun legislation in the weeks ahead—still a big if—that legislation will leave much to be done. The proposed framework does not, for example, increase the minimum age for purchasing firearms, address assault weapons and high-capacity ammunition, or close background-check loopholes for secondary sales, among other shortcomings.
Americans who want a more far-reaching answer to the country’s gun crisis should look elsewhere: to the nation’s tort system, which is available right now to push gun manufacturers to adopt precautionary marketing practices, safer designs, and more supervised sales regimes.
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Since the common law of 18th-century England, tort law has existed to compensate parties for their injuries, both physical and emotional. With further gun regulation stalled in Congress and state legislatures beholden to the Supreme Court’s interpretation of the Second Amendment, litigation holds out the possibility that victims of gun violence might be monetarily compensated for their injuries. What’s more, successful plaintiff-driven lawsuits can motivate defendants (and their insurers) to avoid future liability by changing their business models to maximize gun safety. In other words, the threat of litigation and high-value jury verdicts can promote self-regulation by the gun industry as an alternative to more aggressive regulatory action.
Congress has made such tort suits against the gun industry difficult—too difficult—but there are still ways in, and they may be the country’s last best hope for accountability.
The argument for using the tort system comes down to money. Americans lose an estimated $280 billion annually in earnings and productivity because of gun violence—and 1,131,105 years of potential life lost from gun-related deaths in 2020 alone—not to mention the hospital bills and other care-related costs incurred by those injured or disabled, including rehabilitation, medication, trauma-related therapy, testing, and home aid not otherwise covered by insurance.
Gun-rights advocates argue that this is the price we must pay to protect Second Amendment freedoms, which the NRA head, Wayne LaPierre, recently called “the fundamental human right of law-abiding Americans to defend themselves.” But who should be the ones to pick up the tab?
As things stand, the costs of gun violence fall unrelentingly on its victims and everyday taxpayers and consumers, many of whom may not themselves own guns. Economists refer to such side effects as negative externalities—the indirect costs of one group’s activity that are disproportionately borne by an unrelated third party, be it private individuals or society as a whole. Consider, by way of example, a producer of pollution. In seeking to maximize profits, it has little incentive to account for the indirect costs its pollution imposes on affected homeowners, the health-care industry, and the wider community. So long as the producer evades these costs, not only will it continue polluting, but it will overproduce. Americans bought nearly 20 million firearms in 2021, the second-highest year on record. Since the COVID-19 pandemic began, publicly traded gun manufacturers have netted $3 billion.
One way to address negative externalities is for the government to intervene through subsidies, taxes, or legal constraints on the producer. But when it comes to guns, Republican legislators are overwhelmingly unwilling to take those steps. As happened with the tobacco industry, then, the most practical means of spreading the costs of gun violence is to turn to tort law and the courts.
For decades after smokers with lung cancer first began suing tobacco manufacturers in the 1950s, courts mostly accepted the defendants’ arguments that smokers assumed the risk in smoking, that related cancers have other causes, and that federal laws governing tobacco advertising preempted state law, effectively insulating them from liability. Then, in 1994, a few thousand pages of the Brown & Williamson Tobacco Corporation’s internal documents were copied and leaked by an anonymous whistleblower, revealing the industry’s long-standing awareness of cigarettes’ addictive qualities.
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Dozens of state attorneys general sued the industry’s major players over the costs of smoking to their public-health systems. In November 1998, 46 states and four of the largest tobacco companies reached a master settlement agreement, with the companies vowing to refrain from certain kinds of advertising, to pay billions in annual sums to the states to supplement their health-care liabilities over 25 years, and to fund public education regarding the risks of smoking. In 1999, the U.S. Department of Justice sued the big tobacco companies under civil racketeering laws and for conspiring to deceive the American public about the health effects of smoking. After a bench trial, a federal judge in 2006 ordered the companies to publish “corrective statements” on their websites and cigarette packaging. On the private side, in October 2002, a Los Angeles jury awarded Betty Bullock, a smoker who had been diagnosed with lung cancer, a whopping $28 billion in punitive damages against Phillip Morris on claims of negligence, strict liability, and fraud.
These cases are just a sampling of the lashing that the tobacco industry endured in the courts, with stunning effects. The 1998 master settlement agreement produced additional releases of internal company records that had previously been kept secret, effectively halting the defendants’ decades-long disinformation campaign about cigarettes and cancer, which had ticked up after a 1964 surgeon general’s report prompted generic warnings that smoking “may be hazardous to your health.” With increased public awareness also came new legal restrictions on smoking in public spaces and higher taxes on cigarettes. Public attitudes about smoking eventually shifted. From 1998 to 2019, consumption of cigarettes fell by more than 50 percent in the United States. Habitual smoking by high schoolers dropped to 6 percent from a high of more than a third.
The stage is set more favorably for gun manufacturers, thanks to Congress’s passage of the Protection of Lawful Commerce in Arms Act (PLCAA) in 2005, which specifically bars civil lawsuits against manufacturers, distributors, and dealers of firearms. In the 1990s and early 2000s, dozens of municipalities across the country brought lawsuits concerning gun violence, arguing that the gun manufacturers created a public nuisance by enabling illegal sales in secondary markets. New York was the first state to sue on the theory that firearms companies design and market handguns “in a way they know supplies unlawful demand for guns” and “impairs residents’ ability to use public spaces.” Several entities in the gun industry, including Smith & Wesson, voluntarily entered into settlement agreements that mandated practices such as conducting background checks at gun shows, placing hidden serial numbers on firearms, adding trigger locks, confining sales of multiple firearms to a single person at one time, videotaping sales, implementing digital tracking systems, and increasing employee training.
Enacted with a bipartisan 65–35 vote in the Senate and signed into law by President George W. Bush, the PLCAA was the culmination of extensive lobbying by the NRA and others to stop the litigation trend. The statute prohibits lawsuits against gun manufacturers or dealers in state or federal court for harm caused by “the criminal or unlawful misuse” of a firearm. Ironically, Congress’s justification included a concern over negative externalities: “The possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system, erodes public confidence in our nation’s laws, [and] invites the disassembly and destabilization of other industries and economic sectors.”
Importantly, the PLCAA contains six discrete exceptions to the gun industry’s immunity, including for knowing sales to someone who intends to use a gun in crime and for limited defects in a product’s design or manufacture. It also allows lawsuits against gun sellers, and in some instances manufacturers, for obvious negligence or for entrusting a firearm to someone the seller knows is high-risk. The overwhelming majority of lawsuits brought under the PLCAA have been dismissed. Additionally, about 35 states have their own immunity statutes for the gun industry.
But not all lawsuits have failed. In December 2012, a survivor and the families of nine of the 26 victims of the Sandy Hook Elementary School massacre sued the manufacturer of the AR-15 rifle used in the shooting, Remington Arms, under another exception to the PLCAA, which enables suits against gun manufacturers or sellers of firearms and ammunition who “knowingly violate a state or federal law applicable to the sale or marketing of their product.” The Connecticut Unfair Trade Practices Act bans businesses from marketing products in an unfair or deceptive manner. The plaintiffs argued that Remington marketed its military-grade weapons as fortifying a sense of masculinity, inviting men to “consider your man card reissued” with a combat-worthy Bushmaster AR-15 rifle. In February, the parties settled for $73 million, a rare plaintiff victory under the PLCAA. Prior to its 2020 bankruptcy, Remington was one of three companies responsible for 45 percent of rifles manufactured in the U.S. Under the settlement, the company also agreed to release documents relating to its marketing of the weapon used at Sandy Hook.
Thus far, courts in Indiana and New York have similarly refused to recognize total civil immunity for the gun industry. And in 2021, the Mexican government sued numerous firearms companies in federal court in Boston, claiming that the PLCAA does not apply to lawsuits involving violence outside the United States. Thirteen states and the District of Columbia filed a brief supporting Mexico’s case.
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The shooter in Uvalde used an AR-15 manufactured by Daniel Defense. The parents of one of the 19 dead children have already sought a court order forcing company officials to produce materials relating to the sales, marketing, and lobbying of its rifles. Although Texas does not have a consumer-protection law as broad as Connecticut’s, just days before the shooting, the company had posted an online ad of a toddler holding one of its AR-15-style rifles on his lap with the caption “Train up a child in the way he should go, and when he is old, he will not depart from it”—language cribbed directly from Proverbs 22:6.
But it’s not just victims of gun violence who can bring lawsuits that could change how guns are designed, marketed, and sold. The PLCAA enables both federal and state attorneys general to use its exceptions, including the “predicate exception” employed by Sandy Hook victims, who fastened their claim on Remington’s violation of a more generalized consumer-protection law that restricts how products can be marketed. Other state attorneys general have shown interest in pursuing this strategy. Last year, the state of New York also passed a landmark public-nuisance law that specifically bars “any gun industry member” from endangering public safety through firearms sales. A federal district judge upheld the law under the same “predicate exception” used in the Sandy Hook case. The ruling is now on appeal to the U.S. Court of Appeals for the Second Circuit on Second Amendment grounds.
The PLCAA contains another express exception for the U.S. attorney general to enforce federal criminal laws regulating the licensing, sale, and interstate transportation of firearms and ammunition to certain categories of prohibited persons, such as convicted felons and individuals under domestic-violence restraining orders, as well as tax laws related to the production and sale of firearms. State AGs can invoke federal law to trigger the predicate exception, as well. But the federal regulatory scheme has numerous holes, including that unlicensed sellers can dispose of guns on the secondary market with relative ease, even to individuals who are ineligible to purchase firearms under federal law.
President Joe Biden has repeatedly called for Congress to repeal the PLCAA—a virtual impossibility as long as the Senate filibuster exists to kill legislation without a 60-vote supermajority. Even after Uvalde, the prospect of garnering 10 Republican votes to lift immunity for the politically powerful gun industry is nil.
Even so, in most cases in the judicial system, the success or failure of lawsuits hinges on discretion. Discretion of judges to let a case survive a motion to dismiss. Discretion of juries to look beyond just the facts and the law and consider the whole picture around a dispute. With ongoing mass shootings keeping the issue in the news, the moment is ripe for some serious measure of accountability. Litigation worked to force the tobacco industry to shoulder its share of the blame for smoking deaths. It could work for guns, too.
The Best Hope for Fixing America's Gun Crisis – The Atlantic
It’s not legislation.