A Stitch in Haste

Congress is moving closer to pre-empting state and local law by protecting gun manufacturers from liability for guns used in crimes:

The bill [PDF - 5 pages] would prohibit lawsuits against the firearms industry for damages resulting form the unlawful use of a firearm or ammunition. [Senator Larry Craig, R-Idaho], a member of the NRA's board of directors, said such lawsuits are "predatory and aimed at bankrupting the firearms industry." Such lawsuits unfairly blame dealers and manufacturers for the crimes of gun users, he added.

Gun makers and dealers still would be subject to product liability, negligence or breach of contract suits under the bill, Craig said.

This is entirely proper. It is a fundamental rule of tort law that liability requires proximate causation (i.e., the defendant must be sufficient close to the chain of events to be held liable for his actions). And it is a fundamental rule of proximate causation that criminal acts by third parties are never foreseeable — they break the chain of proximate causation. You simply cannot, with very few exceptions, sue an innocent law-abiding person for what a criminal does later. There is no obvious reason to exempt firearms from this longstanding rule of tort law.

There is a counterargument that, since guns could be designed today with safeguards such as trigger locks, palmprint sensors or similar features, gun manufacturers should be liable for not making those "safer" guns. But it has never been a doctrine of product liability law (which gun liability is) that the (potential) existence of a "reasonable alternative design" makes the current design "defective." See Restatement of the Law, Third, Torts: Products Liability, Section 2(b) (summary here):

A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design ... and the omission of the alternative design renders the product not reasonably safe.

That is clearly not the case with handguns — having additional safety features might be a good (and cost-effective) idea, but that does not render traditional firearms "unreasonably unsafe." Perhaps someday all guns will have such safety features, but that does not mean that gun manufacturers should be held liable today for firearms that have, so far, always been deemed reasonably designed.

As for the pre-emption question (i.e., federalizing the liability shield), yes it would be nice if state and local governments could figure this out for themselves, but if they can't, then unfortunately federal intervention is warranted. These local gun liability laws are not meant to deter the use of guns in their jurisdictions, but rather to shakedown the industry, probably into bankruptcy.

Any weapon, indeed almost any object, can be used to commit a crime. Manufacturers have always been held to traditional notions of product liability, and gun makers will be no different, even under this bill. The legislation merely preserves traditional and sound tort principles from greedy local politicians and trial attorneys who see a politically disfavored (in some jurisdictions at least) cash cow ripe for the milking.

Congress should immediately pass the Protection of Lawful Commerce in Arms Act and the president should sign it into law. Unjustified lawsuits should not be allowed to kill yet another American industry, especially one that has done no wrong.

Other thoughts at Overlawyered, Hit & Run. See also today's OpinionJournal.

UPDATE #1: The New York Times dissents --

Although the firearms industry argues that it should not be held liable for the criminal acts of those who buy or steal guns, all too often the dealers, distributors or manufacturers contribute to the problem by failing to safeguard their inventories or police their own sales responsibly. The victims of their negligence deserve the right to sue.

The Times is good — they can sneak both a straw man and a bait-and-switch into just two sentences.

The proposed liability immunity is not a special privilege for a favored industry; it is merely a codification of longstanding case law principles in product liability. It actually ensures that the industry is not treated specially (i.e., targeted for "special" frivolous lawsuits).

If there are victims of negligence who suffer damages because any link in the distributive chain fails "to safeguard their inventories or police their own sales responsibly," then those victims will still be able to sue. The bill does not revoke the law of negligence. It merely reinforces traditional (and correct) proximate causation requirements.

UPDATE #2: Reason dissents. The piece is misguided in that it falls into the trap of worshipping the false god of "federalism." State "sovereignty" does not include the power to force defendants to endure frivolous lawsuits or to be derelict in their "sovereign" duty to enforce basic tort principles. If the states abdicate this "sovereign" responsibility, then they have no business complaining when Congress picks up the slack.