On Your First Day, President Trump, Please Repeal the Immunization of Gun Sellers Act

• Jurisdiction: United States,Federal
• Publication year: 2017
• Citation: Vol. 4 No. 0

On Your First Day, President Trump, Please Repeal the Immunization of Gun Sellers Act

Frank J. Vandall
Emory University School of Law

ON YOUR FIRST DAY, PRESIDENT TRUMP, PLEASE REPEAL THE IMMUNIZATION OF GUN SELLERS ACT^†

Frank J. Vandall^*

The purpose of this edition of the Emory Corporate Governance and Accountability Review is to suggest what needs to be done during the first few days of President Trump's new administration. The first act should be the repeal of the Protection in Lawful Commerce in Arms Act (PLCA) (2005).¹ In essence this is a ban on suits against corporations that manufacture guns. Gun manufacturers are the experts and need to be brought into the gun safety debate. When at fault, they should be held liable.

Congress nailed the doors to the Courthouse closed in 2005. The Gun Manufacturers Immunity Law (PLCA) (2005) protects gun manufacturers from suit. One of the arguments against the passing of the "Protection of Lawful Commerce in Arms Act" (PLCA) was that the bill prevented the victims of gun violence from having their day in court.² Senator Jack Reed noted how a bill that protected firearms manufacturers from civil liability would prevent those who lost loved ones to gun violence from seeking justice.³ Senator Reed presented the case of Conrad Johnson, saying, "Conrad Johnson was the bus driver who was killed by the Washington area snipers. The snipers' Bushmaster

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assault rifle was one of more than 230 guns that disappeared from the Bull's Eye Shooter Supply gun store in Washington State. The gun store's careless oversight of firearms in its inventory raised serious questions of negligence that fully deserved to be explored by the civil courts."⁴ Bringing a torts suit was forbidden by the PLCA however. Senator Reed's point was that the PLCA wrongly immunized the gun store from judicial examination by means of a suit.

This Paper will manifest that laws immunizing gun manufacturers and sellers prevent victims of gun violence from asserting their rights. This is premised on the simple idea that the negligent gun merchant, felonious shooter, or both, owe a duty to the decedent. When a thief shoots a victim, or when an enraged spouse shoots his wife, the shooter has acted as prosecutor, judge and jury. The victim is dead without ever having access to the courts to plead her case. The handgun provides instant death or serious injury. Mr. Conrad Johnson and his family were unable to obtain justice because of the PLCA. The negligent gun store owner was immunized from tort liability by the PLCA. Today, because of the lobbying strength of the gun manufacturers and the NRA, there is no meaningful debate of gun safety.

Congress passed the PLCA in less than a year and was very much influenced by the National Rifle Association and the numerous arms manufacturers. I predict that not a word in the PLCA will be changed in 2017. The path forward in regard to gun safety must then rest with the civil justice bar. To reduce the carnage, hand guns and rapid fire weapons must be restricted to the home for self-defense purposes. Thus "carry everywhere laws" that encourage taking guns outside the home, such as Georgia's, must be challenged in court as being unconstitutional.

In terms of the numbers of deaths from gun violence, it is as if we are at war. War is safer than living in the United States. About 15,000 people die from gun violence each year. That amounts to 150,000 gun deaths every 10 years. In comparison about 60,000 American military personnel were killed in Vietnam, about 4,000 in Iraq over 10 years, and 132 American soldiers were killed in Afghanistan in 2013.⁵

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A gun is the most dangerous thing you can bring into your home. A person in the home is four times more likely to be shot and killed than an intruder.⁶ Each year approximately 10,000 children are killed or injured by gun violence in the United States.⁷ Women are most at risk, to be sure. If a domestic abuser has access to a gun, a woman is 500% more likely to be killed than if no gun is present.⁸ To put the issue into today's context, the prosecutor involved in the Ferguson Missouri grand jury report said that Officer Wilson shot Michael Brown because he feared that Brown was armed.⁹

Thus, more guns on the street will lead to the police fearing more guns on suspects and in vehicles. One reason the firemen refused to put out the fires in Ferguson, Missouri was that they heard shots and feared that they would be shot.¹⁰

More guns carried outside the home will make the police more likely to shoot a suspect. Recently, an officer shot a 12-year-old child in Cleveland, Ohio because he was pointing a gun at people.¹¹ In fact, it turned out to be a toy gun.¹²

I. The Georgia Carry Guns Everywhere Act

In April 2014, the Georgia legislature passed a bill that permits carrying handguns and rifles in restaurants, churches, and school parking lots.¹³ I argue

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that the act rests on flawed policies and is unconstitutional. Briefly put, the so-called "Safe Carry Protection Act" allows individuals to carry firearms anywhere in Georgia, subject to only a few exceptions. Under the new law, firearms are only prohibited within 150 feet of a polling place, on the premises of a nuclear power facility, inside state mental health facilities, and inside of a school building.¹⁴ As long as the proprietor does not forbid it, firearms may be carried in restaurants, bars, and all similar places of public accommodation.¹⁵ The same goes for churches.¹⁶ You may find yourself dining in a fine restaurant and the next patron over carrying an AK 47.

Furthermore, individuals may carry firearms into any government building so long as "ingress into such building is not restricted or screened by security personnel."¹⁷ With regard to schools, firearms may be carried so long as the weapon is "under the possessor's control in a motor vehicle or in a locked compartment of a motor vehicle or in a locked container or in a locked firearms rack which is on a motor vehicle." Teachers are also allowed to carry firearms in their vehicles on school property. Essentially, the act allows individuals to possess firearms on any school parking lot, so long as they are not actually a student at the school. Even if a licensed individual is caught carrying a firearm inside of a school, in violation of the new law, he or she is guilty of only a misdemeanor.¹⁸

While the law does include a licensing requirement to carry weapons in public, the provision is phony. The Act forbids application forms from requiring "gun serial numbers or other identification capable of being used as a de facto registration of firearms." Also, while there is a provision preventing individuals who have been inpatients at a mental health facility, or adjudicated

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not guilty by reason of insanity from getting a carry license, the Act contains a petitioning procedure by which they still may receive a license to carry.¹⁹

In reality, though, these licensing requirements are a mere facade, as "[a] person carrying a weapon shall not be subject to detention for the sole purpose of investigating whether such person has a weapons carry license."²⁰ In other words, anyone could carry a firearm into one of the myriad places allowed by law, and a police officer would have no legal way of knowing whether that individual was permitted to do so. Furthermore, if an unlicensed individual were to shoot someone in "[d]efense of self or others," it would act as an absolute defense to any criminal liability under the licensing provisions.²¹

The law even limits law enforcement's ability to respond to gun violence in an emergency. The Act states that, even "pursuant to a declared state of emergency," no official may seize any legal firearm, prohibit possession of any firearm, require the registration of any firearm, or even prohibit the carrying of any firearm; clearly, the Act eliminates the value of firearms registration.²²

The Georgia "guns everywhere" law has not yet been judicially reviewed. Because of this, and because the new Congress will not consider the repeal of the PLCA, the constitutionality of the "guns everywhere" law calls for careful evaluation. This paper argues that the act is unconstitutional on four grounds: due process, equal protection, access to court and special legislation.

II. Due Process

When someone is shot and killed, the shooter is the judge, the jury and the executioner. The victim has not received "due process" in terms of a preliminary hearing or trial. For example, Tom rapidly approaches Sam in a dark alley and Sam feels threatened and shoots Tom in self-defense. But what if Tom was mentally challenged, drunk or insane? Or, Sam was never at risk? Tom is now dead and never received "due process" before his death; he never received an opportunity to defend his actions on the basis that he was mentally ill.²³

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Due process can be divided into two classes, procedural and substantive.

A. Procedural Due Process

The Georgia legislature snuck the "carry law" through on the last day of the session.²⁴ It was entirely different than the bill that had been debated for the previous six months.²⁵ Therefore the passage of the bill violated procedural due process in that it was never read or debated by the legislature prior to passage.²⁶

Professor John E. Nowak and Ronald D. Rotunda had this to say about "procedural" due process:

When the Court reviews a law to determine its procedural fairness, it reviews the system of decision-making to determine whether or not a government entity has taken an individual's life, liberty, or property without the fair procedure or "due process" required by the Fifth and Fourteenth Amendments.²⁷

. . .
It is important to realize that procedural review is limited in scope. Procedural due process guarantees only that there is a fair decision-making process before the government takes some action directly impairing a person's life, liberty or

...