Gun Reform by "any Means Necessary"

• Publication year: 2014

Gun Reform by "Any Means Necessary"

Tiffany Taylor

GUN REFORM BY "ANY MEANS NECESSARY"

Introduction

In 2005, Congress passed the Protection of Lawful Commerce in Arms Act ("PLCAA"), shielding gun manufacturers¹ from liability whenever the misuse² of a firearm³ causes harm.⁴

PLCAA is important for two reasons: (1) it provides gun manufacturers and distributors blanket immunity for gun violence and, in doing so; (2) it hinders the natural product reform process. this essay will discuss how PLCAA has interrupted the natural product reform process and how stakeholders who desire tougher gun control can use their resources as a means of advocacy. The natural product reform process is the process by which products are improved and/or refined through the affects of the consumer market, technology, innovation, and law suits.

I. Blanket Immunity from Liability Provides a Free Pass to Gun Manufacturers

The immunity under PLCAA provides a free pass to gun manufacturers from any liability for gun violence.⁵ PLCAA states that "[a] qualified civil liability action may not be brought in any Federal or State court."⁶ A "qualified civil liability action" is a civil action or administrative proceeding brought by

any person against a manufacturer or seller of a qualified product, or a trade association, for damages, punitive damages, injunctive or

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declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party . . . ."⁷

The term "qualified product" means a firearm, including antique firearms, ammunition, or any component part of a firearm or ammunition.⁸ Thus, PLCAA precludes liability to gun manufacturers whenever a gun is used in a criminal act and harms another person. In addition, retroactive effect of PLCAA has been affirmed by courts as comporting with the notions of due process.⁹

In 2009, City of New York v. Beretta U.S.A. Corp., a case BROUGHT by the City of New York against gun manufacturers and dealers was decided after nine years.¹⁰ The United States Supreme Court denied certiorari after the Second Circuit ordered the case to be dismissed under PLCAA.¹¹ In the case, the City of New York accused gun manufacturers of violating the state's nuisance law by putting its products in illicit markets which created a condition that negatively affected the public health and safety.¹² The court held that New York's nuisance statute was not an applicable exception to maintain a suit against a gun manufacturer under PLCAA.¹³

To be clear, PLCAA does not prohibit claimants from filing all causes of action against a gun manufacturer.¹⁴ PLCAA specifically proscribes those claims relating to criminal gun violence.¹⁵ Therefore, if a company manufactured a gun that automatically fired when held in a certain position, the injured person could sue the maker of the gun for design defect, manufacturing defect, breach of expressed/implied warranty, or a failure to warn. However, if a person robbed a bank and purposefully shot a customer in the bank, the

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injured customer could not sue the manufacturer of the gun the robber used to commit the crime. PLCAA prohibits the sort of claims that would arise in the latter scenario.

Some opponents of stricter gun control laws might use a common slogan associated with the National Rifle Association and argue that "guns don't kill people, people kill people."¹⁶ This notion suggests that guns require human interaction to harm others and that a gun cannot harm a person by itself. Proponents of gun reform, however, claim that while "guns may not kill people . . . people with guns do, and they do so more often and more efficiently than people without guns."¹⁷ Essentially this counterargument and others like it, claims that guns enable people to kill people.

Both of these rhetorical arguments wrestle with the issue of whether gun manufacturers should be liable when a third party uses its product in a manner unintended to commit a crime. However, this paper will not debate whether gun manufacturers should or should not be liable for gun violence under PLCAA. It will simply serve to highlight that blanket immunity for gun violence under PLCAA hinders the natural product reform process and bring to the forefront a possible new form of advocacy for gun reform.

II. PLCAA Interferes with the Natural Product Reform Process

Manufactured goods evolve over time due not only to improved technology and innovative ideas, but also, products liability lawsuits.¹⁸ Products liability litigation is a means to ensure that a company is held responsible when it is negligent.¹⁹ When a product is faulty or when a company cuts too many corners in making its product, the company may be held liable to harmed

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consumers.²⁰ Through products liability, the defective product is brought to the attention of the manufacturing company.²¹ Products liability causes of action give consumers an outlet to vocalize their claims and invoke their legal right to safe products. ²² By protecting gun companies from this form of liability for gun violence, Congress silenced the consumers' voice and their rights.²³ The removal of products liability as an available cause of action to consumers helps to eliminate or substantially reduce gun manufacturers' financial liability to consumers for gun violence.²⁴

This reduction of financial liability hampers gun reform. If a company is subjected to burdensome litigation over a product it produces, the company will have a tremendous incentive to fix the issue or try to alleviate the problem as best as it can to avoid facing such litigation. Therefore, a company, through this process, will take proactive measures to constantly modify or improve its products (even if there is nothing "wrong") to safeguard against potential litigation. In fact, in products liability litigation, evidence of a later change in design cannot be used against a company to prove negligence of defective design.²⁵ As a policy matter, society does not want companies to refrain from making beneficial changes to products in fear that the change will be used against them in court.

To be sure, the natural reform process is not perfect. If a company sold a dangerous product and was still able to make a profit off of the product, then at the end of the day it was advantageous for the company to manufacture the dangerous product. The imperfectness of the reform system is perhaps best illustrated by a car manufactured in the 1970s with a major defect, the Ford Pinto.²⁶ In manufacturing the infamous Ford Pinto, Ford Motor Company knowingly produced a vehicle that was susceptible to gas tank rupture upon

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impact, resulting in potential injuries or death for its passengers.²⁷ Ford was exposed to hundreds of lawsuits related to the Pinto and subsequently paid out millions of dollars in damages.²⁸

The Ford Pinto was designed according to a 2000/2000 rule in which the car was not to weigh over 2000 pounds and cost the consumer no more than $2,000.²⁹ Cost-benefit analysis showed that it was cheaper to pay out all of the anticipated personal injury claims rather than recall the Pinto.³⁰ A recall would have cost Ford $137 million.³¹ It was $11 per car to change the gas tank multiplied by 12.5 million, the number of Pintos Ford estimated it would manufacture.³² Ford estimated that the total liability from consumer claims would reach only $49.5 million.³³ Ford also estimated that 180 deaths would occur as a result of the Pinto's defect,³⁴ with each life being valued at a compensatory value of $200,000.³⁵ Ultimately, Ford estimated that it would save $87.5 million by not recalling existing Pintos and fixing future Pintos.

For Ford, it was simply more advantageous for it to make a dangerous product, at least from a financial perspective. So it did. But products liability did play an important role in this case. Eventually, Ford stopped manufacturing the Pinto after 1980. Ford recalled the Pinto on June 9, 1978,³⁶ four months after receiving a devastating jury verdict in a suit alleging a defect in the Pinto. In Grimshaw v. Ford Motor Co.,³⁷ after a six-month jury trial, the jury returned a verdict in favor of the plaintiff for punitive damages in the amount of $125

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million.³⁸ Fortunately for Ford, that amount was substantially reduced to $3.5 million on remittitur by the trial judge.³⁹ The amount of punitive damages was upheld on appeal in 1981.⁴⁰ Nonetheless, this amount exponentially surpassed Ford's calculations of $200,000 per death. Ultimately, Ford may have had to stop manufacturing the Pinto in order to save its public image and the company from potential bankruptcy.⁴¹ Here, the natural reform process, including products liability, adversely affected Ford financially enough for it to pull the defective product off the market before the company could face further potentially devastating liability.⁴²

It is clear that products liability is an aspect of the market. By removing the risk of products liability litigation and insulating gun manufacturers from liability, Congress has not only limited market effect but also the natural reform process. Because gun manufacturers are precluded from this type of natural reform process by the PLCAA, it is up to society as a whole to advocate the reforms it wants in place or seek repeal of the PLCAA. One major driving force for reform of product designs can be Stakeholder Advocacy.

III. The Newtown...