Op-Ed: Hold the Gun Industry to Traditional Liability Standards

When Brandon Maxfield was seven years old, a defectively designed “Saturday-night special” unintentionally discharged. He was shot in the face, leaving him paralyzed for life. A jury decided that Brandon was a victim of negligence, and levied a judgment against the manufacturer of the gun. If some in Congress have their way, cases like this will never again be possible, and people like Brandon will never get their day in court.

The Senate is currently considering legislation that would short-circuit our civil liability system and rob ordinary Americans of their ability to hold negligent gun manufacturers and dealers accountable for the harm caused by their actions. This bill, the so-called “Protection of Lawful Commerce in Arms Act,” must be rejected.

Without the benefit of even a single hearing or public witness, this bill’s sponsors would insulate the entire gun industry against all civil liability in our nation’s courts. They would preempt the laws of all 50 states and replace them with a special set of federal rules that would completely eviscerate traditional legal principles. Those principles are based on a simple, common sense notion: People who cause harm to others should be held accountable for the foreseeable consequences of their negligence. Traditionally, state negligence laws impose civil liability on individuals or businesses that fail to use reasonable care to minimize the foreseeable risk that their products or actions will harm others.

For every industry in America, throughout our entire history, our civil justice system has served as an essential vehicle for encouraging responsible business practices, forging accountability, and protecting public safety. For the gun industry, however, that is apparently too much. Their alternative: unique and unprecedented federal protections that would shield this one industry from accountability in all but the narrowest circumstances.

Those circumstances are so narrow, in fact, that almost no case against the gun industry would be possible. State laws typically require manufacturers to adopt safety devices that would prevent injuries caused when their products are misused, regardless of whether such uses are “intended” by the manufacturer, or whether the product “fails” or “improperly” functions. Thus, cigarette lighters must be childproof, even though children are not “intended” to use them, and cars must be crashworthy, even though the “intended use” is not to crash them.

Under the proposed legislation, however, gun manufacturers would enjoy special immunity from negligence claims-even if they fail to adopt practices or install safety devices that would prevent common, foreseeable injuries-so long as the injury or death resulted from the gun not being “used as intended.” Cases like that brought by Brandon Maxfield would fail to meet this standard, which is precisely what this bill is designed to do.

Removing the threat of lawsuits removes the incentive to adopt reasonable safety standards, or even to ensure that new products are responsibly designed. This is especially true in light of the uniquely lax regulatory environment in which the gun industry operates. Because the industry was exempted from the 1972 Consumer Product Safety Act, there is no federal law or regulatory authority that sets minimum safety standards for firearms.

Thus, federal laws protect consumers from every product that presents unreasonable risk of injury-except guns. Not coincidentally, since 1972 an average of 200 children under the age of 14 and more than 1,000 adults each year have died in accidents involving guns-accidents that existing but unused safety technologies such as trigger locks and load-indicator devices might have prevented.

The fact that current law does not require gun manufacturers to employ such devices leaves consumers, including police officers injured with guns that fire when dropped, with just one remedy-their traditional right to seek justice from the courts. This bill would take that right away.

Buyer beware. When you short-circuit the civil liability system for one industry, you short-circuit justice for all.