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

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Legislators in California were appalled and soon repealed the law, replacing it with a measure simply stating that those who design, distribute, and market firearms have no special exemption from the normal legal duty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 9 December. 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 Associate Dean for Students and William R. Jacques Constitutional Law Scholar and Professor of Law, University of Missouri-Kansas City. This article is published courtesy of The Conversation (under Creative Commons-Attribution/No derivative).