It's time to repeal the gun industry's exceptional legal immunity

Gun violence has been a problem for a long time, but the recent shootings in Paris and San Bernardino have focused new attention on the issue.

Americans no longer just worry about someone shooting up a school or workplace for personal reasons. The threat of terrorism has added an alarming new dimension to the problem.

Coming up with effective and realistic solutions is not easy. Guns pose a tricky dilemma, because they can be used to do good or bad things. They can be used to commit heinous crimes, but they can be used to protect lives as well.

The challenge for lawmakers is to come up with ways to reduce the risk of criminal misuse of guns while preserving and even promoting the likelihood of guns being used in beneficial ways.

Ensuring that every firearm manufacturer and dealer operates as safely and responsibly as possible should be one piece of the puzzle.

A key way to ensure that gun companies have the right incentives would be to repeal the Protection of Lawful Commerce in Arms Act.

Mourners hold a vigil for the victims of the San Bernardino mass shooting.Reuters

Gunmakers' special immunity

Enacted in 2005, this federal law gave gun sellers a special immunity from legal responsibilities that is not enjoyed by any other industry.

This law was enacted because a wave of lawsuits had put unprecedented pressure on the gun industry. In 1998, New Orleans became the first city to file a lawsuit against gun manufacturers. More than 30 other major American cities and counties soon followed. Other cases brought by individual victims of shootings began working their way through the courts as well.

As one of the lawyers at the Brady Center to Prevent Gun Violence helping to bring these cases, I saw very clearly the impact that they had. The lawsuits generated evidence of severe problems with distribution of guns, including undercover sting operations revealing how gun dealers knowingly allow people to make “straw purchases” on behalf of convicted felons who cannot pass a background check.

The lawsuits also changed perceptions about the issue. Rather than seeing gun violence simply as a crime issue, the press and public began focusing for the first time on specific ways in which the gun industry’s practices contribute to the danger.

Journalists wrote a flood of stories about topics like how gun companies boosted the lethality of their products to boost sales, how new technologies could make guns “personalized” to prevent unauthorized use and what government data showed about the illegal market for guns.

The lawsuits put enormous pressure on the gun industry to either reform its practices or face serious potential liability. From the industry’s perspective, that meant the lawsuits were a major threat. Rather than doing the right thing and cleaning up its act, the industry turned to Congress for relief. The Protection of Lawful Commerce in Arms Act knocked out almost all of the litigation pending against gunmakers at the time.

Regrets about immunity in California

If Congress decided to do away with this law, it would not be the first legislature that came to regret bestowing special immunity on gunmakers. California enacted a gun industry immunity law in 1983. Ten years later, a deranged gunman killed eight people and wounded six others in a shooting rampage at the office of a San Francisco law firm.

The killer used a pair of TEC-9 assault pistols, weapons with a notorious reputation for being designed and marketed in ways that appealed to criminals.

Survivors of the shooting and families of the victims brought a lawsuit against the manufacturer of the TEC-9s. They had compelling evidence of negligence but never got their day in court in front of a jury because judges ruled that the manufacturer was immune from liability under California’s statute.

Legislators in California were appalled and soon repealed the law, replacing it with a measure simply stating that those who design, distribute and market firearms have no special exemption from the normal legal duty to exercise ordinary care. California’s decision unfortunately became a moot point a few years later when Congress gave sweeping immunity to the gun industry on a nationwide basis.

A compelling case

The federal measure effectively bars almost any lawsuit against a gun manufacturer or wholesale distributor for failing to take reasonable steps to reduce the risk of criminal misuse of its products, such as exercising greater oversight of the retail dealers through which guns are sold.

It also bars a wide range of claims against retail sellers of firearms, leaving only a few narrow exceptions such as for certain types of claims based on statutory violations. For example, a gun dealer can be sued for knowingly selling a gun to a convicted felon or other legally disqualified purchaser. But if a dealer takes an “I know nothing” attitude and recklessly disregards circumstances that ought to raise reasonable suspicions or concerns about selling the gun, the dealer can invoke the federal immunity statute to avoid liability.

A case currently before the Supreme Court of Missouri provides a disturbing example of the federal law’s consequences.

Colby Sue Weathers had a long history of severe mental illness and substance abuse. She heard voices in her head and believed she was being monitored by a computer chip implanted inside her nose. She walked into a gun shop in May 2012, and, despite her debilitated mental condition, she managed to purchase a pistol.

She planned to shoot herself with it, but changed her mind and surrendered the gun to her parents. A few weeks later, Colby’s mother called the gun shop, told them about Colby’s mental problems and begged them not to sell another gun to Colby. She specifically warned the store that Colby would soon be receiving a Social Security check and was likely to use the money to buy another gun.

The shop could have simply declined to sell a gun to Colby, but it refused to use its discretion to refrain from making the sale. Two days later, Colby walked into the shop, purchased a pistol and then went home and used the gun to kill her father.

Limited legal avenues

Colby’s mother sued the gun shop for negligently selling the gun to her daughter despite being specifically warned of the danger.

The case is compelling, for even many gun rights advocates would be troubled to hear that a gun store would ignore such a highly specific warning about a particular customer, particularly a desperate plea from a mother worried about her child.

But for the case to have any chance of succeeding, lawyers bringing it had to try to squeeze it into one of the narrow categories of claims that the federal law allows against gun dealers. So far at least, they have failed, as the case was thrown out on the ground that all of the legal theories asserted in the case are either barred by the federal statute or not recognized under Missouri law.

The Supreme Court of Missouri will hear arguments in the case on December 9. It is likely to take a few months to announce its decision, but when it does so, it can save the day by declaring that Colby’s mother has a claim that is viable under Missouri law and not precluded by the federal statute.

But bringing the lawsuit would not be such a convoluted, uphill battle if Congress had not bestowed special legal immunity on the gun shop and every other company in the gun business.

Rethinking immunity

At the same time, I would argue that gun manufacturers and dealers should not be subject to any extraordinary forms of liability that do not apply to other products.

They should not be liable, for example, merely because a firearm is a weapon that is capable of being used to do harm. But if a gun manufacturer or dealer fails to take basic, reasonable precautions in distributing products, it should be held accountable under the law just as an irresponsible company in any other business would be.

Think about what the threat of liability for defective cars like the Ford Pinto has done for auto safety, or how the risk of liability for a dangerous product like the Dalkon Shield contraceptive device gives good incentives to the manufacturers of pharmaceuticals and other medical products. Why should the makers of firearms be any different?

With the risks of firearms in the wrong hands becoming ever more apparent, Congress should reconsider its regrettable decision to give the gun industry special immunity from legal responsibility.

Allen Rostron is an associate dean and professor at the University of Missouri - Kansas City School of Law. He was a senior staff attorney at the Brady Center to Prevent Gun Violence prior to becoming a law professor in 2003. The Brady Center represents plaintiffs in the cases discussed in this article.