Everyone acknowledges that we have an epidemic of gun violence in America. Opinions vary strongly as to what to do about it. Some people believe military assault rifles should be banned or made much harder to obtain, while others contend that nothing should be done to restrict public access.
One question worth considering is whether the civil justice system could play a role in reducing gun violence. Why shouldn’t a jury be allowed to decide if promoting high-power, large cartridge, weapons of war to the average consumer makes that product unreasonably dangerous when used to murder civilians? They can do so for virtually any other type of product in America where the entire industry isn’t given special immunity by Congress or another legislative body.
The Right to Bear Arms
Gun ownership is protected by the Second Amendment, but gun manufacturing is not.
Nonetheless, gun manufacturers and gun dealers enjoy special statutory immunity from civil liability in nearly all cases arising from gun violence. In 2005, Congress enacted the Protection of Lawful Commerce in Arms Act (PLCAA) for the specific purpose of exempting the gun industry from civil liability. Free to manufacture and promote guns as fulsomely as they wish, the gun industry has done so. Today there are more than seven times the number of guns in circulation in the United States than there were in 2005 when the PLCAA became law.
When Mass Tort Litigation Has Improved Public Safety
If the PLCAA and similar state law gun industry immunity statutes were repealed, would mass tort litigation force gun manufacturers to institute marketing and design changes that would result in less gun violence? The answer to that question is unclear. Professor Timothy Lytton published a law review paper that juxtaposes the anatomy of mass tort litigations that improved public safety to some that didn’t. In his essay, Using Tort Litigation to Enhance Regulatory Policy Making: Evaluating Climate-Change Litigation in Light of Lessons from Gun-Industry and Clergy-Sexual Abuse Lawsuits, Texas Law Review Vol. 86: 1837, Lytton argues that the most transformative types of mass tort litigation have four characteristics:
- They engender a high degree of public consensus outrage regarding the defendant’s conduct.
- Plaintiffs obtain trial successes or settlements that are positively covered in the press.
- The defendant is widely perceived to be engaged in a cover-up that the litigation has exposed, and that litigation can reform.
- The relief sought by the plaintiffs in litigation complement rather than compete with the goals of policy-making institutions.
Lytton then compares clergy sexual abuse cases in the 1980s and 1990s to those pursued during those eras against gun manufacturers. He concludes that clergy sex abuse cases were more successful in improving public safety than those against the gun industry because they enjoyed the benefits of the above four factors in ways that gun cases did not. He observes that prior to litigation, most people were unaware of the prevalence of clergy pedophilia and that news of the litigation spurred public outrage at the church institutions that harbored and concealed it. Plaintiffs’ lawyers in that litigation were publicly perceived as heroic whistleblowers that exposed reprehensible misconduct.
Previous Cases Against Gun Manufacturers
Conversely, he notes, the cases against gun manufacturers were met with unfavorable publicity and opposition from lawmakers. Many Americans oppose gun regulation. They and others often place blame for gun violence solely on the shooters and they perceive cases against gun manufacturers as a slick plaintiffs’ lawyer scheme that targets a blameless “deep pocket,” and/or a politically motivated attempt to restrict gun access. Gun manufacturers were able to exploit those sentiments in Congress and across many states to obtain legal immunity.
Gun violence in America is more prevalent than ever. Will the civil justice system ever provide a forum for assigning liabilities to members of the gun industry, and if so, with what impacts? The jury is still out. Literally.
