“Should you be able to sue GM every time there’s a car accident?”
I keep reading that profoundly ignorant question every time somebody tries to defend Sanders’ vote for gun manufacturer immunity. So I decided to write this.
First, a tiny bit of background. I’m an attorney. I’m an active trial litigator. I stopped counting the number of jury trials at 100, and that was two decades ago. I’m licensed in three states, a dozen federal jurisdictions, several federal courts of appeals, and the US Supreme Court, and have appearances before all of them. I’ve practiced both criminal and civil law.
Okay, on with the show.
Gun manufacturer immunity does not protect gun manufacturers from frivolous lawsuits. The rules of civil procedure, called “trial rules” in some states, do that. If somebody sues a gun manufacturer without an actual tort, whether it’s negligence or a specific tort, the case gets tossed on a motion to dismiss. If it doesn’t, well, the manufacturer is in the same boat as every other defendant in the country who is dealing with a timid judge. Big deal.
What it does do is protect manufacturers from valid lawsuits.
“What kind of valid lawsuit could there be,” you ask? “After all,” you say, “guns are made to kill people.”
Bullshit.
Let’s go back to cars, shall we?
Does anybody here remember the Corvair, or the Pinto? They were knowingly manufactured in an unsafe way, because the cost-savings exceeded the tort risk. Did anybody successfully sue because they got drunk and ran their Pinto into the neighbor’s mailbox? No. Why not, they didn’t have immunity? No shit, Sherlock. That’s not how the law works. A case like that would be dismissed as frivolous, and attorney’s fees might even be ordered. People sued when somebody ELSE got drunk, ran into the back of the Pinto, and the POS exploded into flames, killing or maiming somebody.
Now let’s look at another example, okay? Assume, for the sake of the hypothetical, that GM makes a new Camaro with 900 horsepower, and they advertise it with teenagers dragracing and drinking. Now, a 17 year old kid gets one, gets drunk, dragraces, and kills a 42 year old mom crossing the street with her 6 year old daughter. The daughter is horribly maimed but survives. Is GM liable? I would answer, “perhaps.” In more detail, I would tell you GM likely won’t win a motion to dismiss or a motion for summary judgment, and will have to defend themselves at trial. And I would add that I believe that is how it should be.
Another example, if I may. A car manufacturer knows that it can add an early warning system to alert people if they are about to run into something in front of them. They don’t, because it would add $27 to the manufacturing cost of the car, and they make a million cars a year. They get together with the other car manufacturers and agree that none of them will install the device, to avoid creating an issue of the prevailing standard. Guess what? Somebody in one of their cars kills a kid riding his bike down the street. The Plaintiff sues. Do they prevail? Perhaps they do. Certainly, if they can show that the manufacturer not only knew of the device, but colluded with other manufacturers so that none installed it, well, they’re certainly going to get to a jury.
Now let’s talk about gun manufacturers, now that we have some sense of how courts and tort cases work.
Bob, a law abiding citizen, goes to a gun store, which bought its inventory from Colt and Smith&Wesson. Bob buys a S&W .38 revolver, and puts it by his bed. 27 years later, Bob, who lost his job and his wife, kills himself with the gun. Can his surviving children sue Smith & Wesson. Of course not. That’s fucking stupid. That’s an NRA strawman, and anybody shoveling that shit here needs to piss off.
Next, GunsForAll, a gun store in Gary, Indiana, is the largest seller of AR-15s and Glock 9mm handguns in the US. It’s right next door to Chicago, where gun sales are far more restricted. Not only that, but it has been repeatedly investigated by ATF for strawman sales, sales to third parties intended for people who can’t legally purchase them. Not just that, but both Glock USA and Armalite have received subpeonas as part of those investigations. Armalite fills yet another order for AR-15s to GunsForAll, sending 600 of them per month to the store, more than their next 10 customers combined. Three children in a playground in Chicago are killed by a gang member spraying high velocity .223 rounds in a gang shooting. Should the parents be able to sue Armalite? After all, they just sold guns, and the gun did what it was made for. But was Armalite negligent, knowing GunsForAll was being investigated, and shipping such massive numbers to the store? Any lawyer with more than an hour’s experience could make that case. But you know what? Under the law Sanders voted for, they wouldn’t get to.
Okay, another example. Assume personal identification technology is available, assuring that only the owner of the gun can fire it. This is done through the use of a ring, or a watch or bracelet, or some other technology that matches the gun to the owner. But the manufacturers know it will add a big chunk to the cost of the gun, and they’re worried that states, and perhaps even the federal government, will make the technology mandatory once it’s been shown effective. So none of them make it. Martha, a single woman, buys a .22 pistol for self-protection. She asks the gun store owner if they have one that is protected by “smart gun” technology, because she remembers reading about it somewhere. The store owner says, “sorry, they were talking about making that, then everybody went crazy and it failed.” So she buys a regular Ruger .22 semi-auto. A year later she meets Fred, who seems like a nice guy. Little did she know Fred had anger problems. Well, to cut to the chase, Fred takes the gun from her dresser and shoots her 6 times. She survives, but is disabled and in pain for life. Her lawyer does some initial investigation, and files a suit against Ruger based upon what he believes to be manufacturer collusion to prevent the sale of guns with “smart gun” technology. It gets dismissed because gun manufacturers have immunity. Without it, Martha’s lawyer gets to present a case of collusion and product safety.
Do you see how this works? Gun manufacturer immunity doesn’t protect manufacturers because they make a product that is designed to kill. It protects them when they make a product that is designed to kill, and do it negligently, market it or sell it negligently, or knowingly make a product that is less safe than it should be to protect their profits.
One more thing. Some people will point to the case of a South American gunmaker being sued for a manufacturing defect with their guns — they go off when they’re dropped. The immunity law has a specific exception for manufacturing defects. None of the examples for guns I gave above are for manufacturing defects. Again, gun manufacturers have far more protection than anybody else, and that case does not rebut the argument. It merely points out that their protection isn’t absolutely complete, just fuck-all better than anybody else.