A well-known cliché when talking about gun control in the United States is the saying, “guns don’t kill people, people kill people.” It would be more accurate to say that guns don’t commit murder since a gun can accidentally kill you. But for a murder to have been committed there needs to be some level of intent on the part of a human being. Depending on the degree and the state, those levels of intent are different, but when we think of a killing as a murder we typically think of something that the person did “on purpose.” Back in the day criminal law referred to this mindset as “malice aforethought,” a phrase still sometimes used when discussing murder. It isn’t very illuminating since “aforethought” can mean in the blink of an eye and you don’t really need “malice,” or motive, to be found guilty of murder. But it does show that in criminal law, usually what we are looking to determine is whether that individual meant to kill someone.

Tort law is different. Most tort law is all about negligence. Were you acting as a reasonable person would act in that situation? If not, we may feel the need to punish you. This mythical reasonable person is the standard for how we should behave in society and people who are injured by someone not acting up to that standard should be compensated. The word “reasonable” appears so many times in a torts casebook that a law school drinking game involving it would be “outrageous.” That is also what you need to prove for some intentional torts–any conduct that would cause a reasonable person to shout “Outrageous!”

Tort law is all about economics. We do so much commerce and interact so often with each other that people are bound to get hurt. We use products every day that are dangerous, in some cases extremely dangerous, without thinking much about it.

Take ovens, for example. The convenience of using them far outweighs the potentially catastrophic costs if yours happens to explode. Modern ovens are pretty safe, I’m guessing. I didn’t research how often they explode so as not to freak myself out. But even if they were not, we have decided as a society to have them anyway and if a few of us lose our eyebrows it is just the cost of doing business. Rather than have everyone give up ovens, we have come up with a system where the injured party can be compensated by the person who made the oven. If they deviated below the standard of care that a reasonable person, in this case, a reasonable oven maker perhaps, would give to its construction.

Are guns any different? The issue of manufacturer liability for the makers of guns has become a hot topic in the presidential primary, particularly on the Democratic side. The argument centers around a 2005 law, the Protection of Lawful Commerce in Arms Act (PLCAA), and whether it should protect companies that manufacture guns from civil liability for injuries or deaths caused by the guns they make. Not if the gun explodes because it was improperly made, but if someone purchases it and then shoots a victim. Given the extent of gun violence, should we have a different standard for a product that is designed to kill?

Are Guns Special?

Before we delve right in, take a look at this clip from one of the Democratic debates where Hillary Clinton and Bernie Sanders tackle the issue of gun manufacturer liability. It provides a good overview of some of the main points and emotional influences on the debate.

When Can You Sue?

The great myth surrounding this question is that somehow the gun manufacturing industry has somehow finagled a way to be completely immune from all liability for any defect in their products. That isn’t the case. If you’re out hunting and you fire your weapon and the bullet flies out of the wrong end of the gun and kills you, your estate will be able to sue the manufacturer of that weapon under a few different theories. Either because that gun (the individual gun involved or all the ones like it) was improperly made, or it was made according to a faulty design. Either way, if you really were using the gun as a reasonable person would you’d likely have a winning case. Even a jury that didn’t know a whole heck of a lot about guns would probably think you were right to assume the bullet would shoot away from you when you pointed it at your target.

What the PLCAA essentially does is it declares that we are not going to allow courts to hear a lawsuit from a victim or a victim’s family against a gun manufacturer when a third party used that gun in a criminal act. If this law did not exist, these cases could be brought to trial but that doesn’t necessarily mean the gun manufacturers would or could be held liable for what happened. It would just mean that instead of having a blanket rule about this kind of case, we are going to force judges to dismiss the same thing over and over. PLCAA is really just a law saying “don’t even bother” to people seeking to bring this type of suit.

It gets into the weeds a bit when you start looking at sellers of guns who may target individuals who aren’t legally allowed to buy a gun, or who sell to a “strawman,” or a buyer who buys in bulk just to sell to others in order to avoid a background check. But are those sales where the seller, and or, gun manufacturer themselves doing something illegal or helping others to subvert the law? That’s a very different scenario from a legally purchased product, which meets safety standards for that industry, then being used to commit a crime.

You can once again see Senator Sanders trying to make that distinction here. It’s also one of the few times you’ll hear someone bragging about getting a “D-.”

Standards for Guns

The statutory shield for gun manufacturers that the PLCAA puts in place does not necessarily grant greater immunity to gun manufacturers relative to the immunity that other industries enjoy.

It is just one that we have put in place for a product that, by its very design, is meant to injure and kill. Other products that can injure and kill are not regulated to the same extent but they do not enjoy this statutory immunity. Not because they have a powerful lobby but because there aren’t enough cases to warrant passing a law that tells people to not waste court time bringing a suit that is likely to be dismissed.

Take knives as an example. I have a set of knives; I bought them on Craigslist. Not from a manufacturer but from someone who had some knives to sell. There was no regulation telling her she should assess my mental state and Henkel (the original manufacturer) had absolutely no idea that I was buying knives they made. They’re well-balanced and sharp. Equally adept at slicing chicken or people (I presume). If I used those knives to cut up my mother into tiny pieces instead of a chicken (just an example!) my father would be laughed out of court if he sued Henkel. Why? Because they had nothing to do with it. Their knife did the job it was intended to do and with remarkable German efficiency sliced what I wanted to slice. We don’t bother to have a law that says you can’t sue the manufacturer of a knife for this because so few people try doing it. That isn’t the case with guns.

The argument could be made that knives have a dual functionality, a legitimate one to make food, and an illegitimate one to commit harm. Guns only have one purpose, which is to cause injury, and on that basis, the regulation should be different. Manufacturers are on notice that their product is likely to be used to commit a crime and they have decided to make them anyway. Therefore, it is justifiable to hold them partially responsible when someone commits a crime with their gun. That argument may not hold water. In fact, it may lean even more heavily toward not holding manufacturers liable because the one thing that makes a properly functioning gun part of a crime is the person using it. Their behavior is the difference between a tool that stops your home from being burglarized or a tool that kills innocent children. It has nothing to do with the product. You could make the same argument about a sex toy used in a rape or sexual assault. What makes it part of a crime is the intent of the criminal actor, not the company that made it.

That isn’t to say that a manufacturer should never be held liable for a product that isn’t defective but is improperly sold or marketed. Using sex toys again as an example, if the manufacturer advertised the product as ideal for raping someone or targeted their advertising to a sex offenders registry, they could potentially be held liable civilly for their actions, maybe even criminally. But as with gun manufacturer liability, they would be being held liable on the theory that they did something illegal or helped others to do so. Not for anything to do with the functionality of their product.

We don’t currently have a separate rule for guns. What we have done is codified the idea that criminals are the ones responsible for the crimes that are committed with guns specifically. The way we have already acknowledged in our legal structure that criminals are responsible for the crimes that they commit with any product.

Conclusion

Guns are the weapon of choice for criminals for several reasons, one of which is that they are relatively easy to get–just check online. And while a criminal armed with a semi-automatic or an automatic weapon is more dangerous to more people than one armed with a knife, the mass shootings still make up a relatively small percentage of crimes. A gun policy based on that fails to deal with the many types of crime where other weapons, such as a knife, would be as effective.

If you think back to the Democratic debate in the first clip you’ll notice Secretary Clinton make the argument that increased liability is an attempt to deal with the epidemic of gun violence. There is a very real problem in the United States with people who get access to guns, sometimes through illegal means and sometimes through perfectly legal channels, who go on to commit violence. Perhaps the situation has changed since 2005 when the PCLAA was enacted and we need to reassess the balance that was struck with allowing these kinds of lawsuits to go forward. The law puts a standard in place for the manufacturer to have “knowingly” sold a weapon to someone who fails to pass a background check, but shields them in cases where they didn’t “know.”

There are more options than having the manufacturer need to actually know they are selling it to someone who failed the background check and a blanket liability whenever someone commits a crime. The mens rea (guilty mind) for murder comes in a variety of flavors, from intent to depraved indifference. Even extreme negligence can get you jail time in some cases. If we wanted to increase the number of people who could potentially sue a gun manufacturer but still keep it somewhat limited we currently have the legal tools to do so.

The question is–should we do so? Does the nature of a gun as a weapon, and the modern day weapon of choice for criminals, make it somehow unique among the various dangerous products we use? We know that we have a problem with gun violence and increased liability for gun manufacturers would probably put a lot of them out of business–depending on how easy you made it for them to be sued and the kind of judgments that were awarded. It might decrease the amount of guns available, which might reduce gun violence.

Or do we have standards for liability for guns the way we do for other products that could be used as weapons, holding them responsible if their product is defective or their sale is criminal but not holding them responsible for criminal acts from third parties. That would mean we treat guns like any other product that we sell instead of a special category of goods that need different rules.

Resources

New York Times: Congress Passes New Legal Shield For Gun Industry

PolitiFact: Clinton: Gun Industry is ‘Wholly Protected’ From All Lawsuits

NPR: Are Gun-Makers ‘Totally Free’ Of Liability For Their Behavior

Cornell University Law Schoo: PCLAA

New York Times: Justices Reject Suit Faulting a Vaccine

CNN: Why Sandy Hook Parents are Suing a Gunmaker

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

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