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The Federal Roadblock to Product Liability Suits Against Gun Manufacturers

Posted March 02, 2018

By Jonathan A. Karon

In most states, if you manufacture or sell an unreasonably dangerous product that injures someone, you can be sued for any injuries or deaths which it causes. But, if the product is a gun, you get a special “get out of jail free” card. Thanks to a 2005 Federal Statute known as “The Protection of Lawful Commerce in Arms Act” gun manufacturers have broad immunity from product liability suits.

The statute is contained in sections 7901, 7902 and 7903 of Title 15 of the United States Code. It provides that gun manufacturers and sellers are immune from liability from a “qualified civil liability action” which is defined as a case brought against a manufacturer, seller or trade association as a result of the criminal or unlawful misuse of a firearm. There are six listed exceptions to this immunity, one of which includes:

“an action for death, physical injuries or property damage resulting directly from a defect in the design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage…”

15 U.S.C. § 7903 (5)(A)(vi).

This would seem, in theory at least, to allow products liability cases to be brought, as long as the claim wasn’t that the gun manufacturers were liable for just for selling a product that some persons use to commit criminal acts. In practice, however, it turns out not to be so easy.

In 2001 a thirteen year old boy accidentally shot and killed one of his friends. He was playing with his father’s automatic pistol. He thought that once he removed the magazine that the gun was unloaded. Unfortunately, this was not the case and when he pointed the gun and pulled the trigger it went off, killing his friend. The deceased boy’s estate sued Beretta U.S.A. Corporation, in Illinois state court, alleging that the pistol was unreasonably dangerous. The plaintiffs were prepared to present expert testimony that if the gun had been equipped with a device known as a “magazine disconnect” it would have prevented the gun from firing when the magazine was removed, thus saving the boy’s life. Plaintiff’s experts were prepared to testify that such devices had been available since 1910, that Beretta incorporated them into similar pistols it sold to police departments and numerous other handguns had such a feature. There was also evidence that this feature would only have added $10 to the $500 cost of the gun. Plaintiffs also were prepared to present expert evidence that the pistol was unreasonably dangerous because it didn’t have a clear indicator that the chamber was loaded and that Beretta should have provided additional warnings.

The Illinois Supreme Court dismissed the claims, however, as the thirteen year old shooter had been found delinquent in a juvenile court proceeding which found that he was guilty of involuntary manslaughter and reckless discharge of a firearm. Therefore, the Court reasoned that the firing of the gun was caused by the thirteen year old’s “volitional act that constituted a criminal offense” and thus, the statute deemed it to be the “sole proximate cause” of the death. I other words, even where the boy didn’t intend to kill his friend or even fire the gun and where a $10 safety feature would have prevented the death, the gun manufacturer was immune from having a jury decide the case. (For those interested in reading the Court’s decision, it is Adames, et al v. Beretta U.S.A. Corp., 233 Ill.2d 276, 909 N.E.2d 742 (2009).

If other courts follow the Illinois Supreme Court’s reasoning (the U.S. Supreme Court declined to review the case) it will be very difficult to find a set of facts that would allow a successful products liability claim against a gun manufacturer. The Connecticut Supreme Court is presently considering an appeal of the dismissal of a product liability lawsuit brought by some of the families of children killed in the Sandy Hook Elementary School shooting. In that case, the plaintiffs argued that the AR-15 assault rifle which was used in the shooting was a military weapon, which should never have been entrusted to civilians and that the defendants deliberately marketed the gun to mentally unstable young men. The trial Court dismissed the case, based on the Federal statute.

It strikes me as a legitimate comment that the Sandy Hook families are attempting to use product liability law to accomplish what they are unable to do legislatively. (Whether you think that’s a good or a bad thing depends, of course, on your views on the gun issue). But, it certainly strikes me as strange that firearm manufacturers, unlike the manufacturers of virtually every other product sold in the U.S., can not be held responsible for failing to incorporate basic safety features, like magazine disconnects, in their products. In the words of George Orwell, “some animals are more equal than others.”


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