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A Business Like No Other

Congress should repeal a law and that prevents victims of gun violence from having their day in court.

By Erwin Chemerinsky Sam Kleiner

Tagged Gunslegislation

In 2005, Congress passed the Protection of Lawful Commerce in Arms Act, which prevents gun companies from being sued by the victims of gun violence. The National Rifle Association (NRA) got it right when they called it “the most significant piece of pro-gun legislation in twenty years.” No other industry enjoys such special treatment.

The act dismissed all pending claims against gun manufacturers in both federal and state courts and preempted all future claims. The law could not state its purpose more clearly: “To prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm caused solely by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.” There are narrow exceptions where liability is permitted, including actions against transferors of firearms who knew the firearm would be used in drug trafficking or a violent crime. Otherwise, gun companies are immune from liability.

Congress should repeal this law and allow victims of gun violence their day in court. Today, gun companies are free to design and distribute unsafe weapons without concern for their destructive impact and without fear of being held accountable.

Public safety requires robust product-liability laws. In 1972, 13-year-old Richard Grimshaw was riding in a Ford Pinto when the fuel tank exploded and burned him. After 70 surgeries, he sued Ford for the fuel tank’s flawed design, a defect the company was aware of. He was awarded $3 million in punitive damages. After the case, car companies were put on notice: Unsafe designs would hurt their bottom line.

Before the passage of the gun-industry protections, lawsuits like this one could hold gun companies responsible for product safety. In March 2000, Smith & Wesson, one of the nation’s largest gun manufacturers, voluntarily adopted a robust set of handgun safety controls as part of a settlement resolving a lawsuit brought by a coalition of mayors. Then, the NRA accused the company of being the first gun maker “to run up the white flag of surrender and duck behind the Clinton-Gore lines.” But since the 2005 immunity legislation, gun companies have no incentive to work with government to make their products safer. Today, Smith & Wesson has not only walked back on its pledge to the Clinton Administration but was actually inducted into the NRA’s “Golden Ring of Freedom” for donating over $1 million to the pro-gun lobby.

The 2005 act denies victims of gun violence the ability to sue companies for design defects, or even negligence, with regard to their products. Senator Larry Craig, the bill’s sponsor, promised that it “will not prevent a single victim from obtaining relief for wrongs done to them by anyone in the gun industry.” Except that’s exactly what the bill did. Veronique Pozner, whose six-year-old son was killed in the Newtown shootings, was frustrated to learn that the gun company was immune from a lawsuit despite its refusal to install a high-tech safety guard that would have prevented a non-owner from using their semi-automatic weapon. “If their wallets were threatened, they would have a greater interest in making firearms safer,” she noted.

As a mouthpiece for the gun industry, the NRA will fight tooth and nail to defend immunity for gun companies. Since 2005, the NRA has received between $20 and $50 million from gun companies. The NRA no longer represents the majority of gun owners; it’s tethered to supporting the financial interests of these large corporations.

Despite the uphill battle, some leaders are beginning to turn back the tide on the gun industry. Representative Adam Schiff has introduced the “Equal Access to Justice for Victims of Gun Violence Act,” which would repeal the 2005 law and allow gun violence victims to have their day in court. Sixteen members of Congress have joined with Schiff, but we’ll need far more in order to make this bill into a law.

As a first-year senator in 2005, Barack Obama couldn’t do anything more than vote against immunity for the gun industry. As President, he has the power to restore accountability for those who profit from violence on our nation’s streets. Our schools, places of worship, shopping malls, and homes will be safer in a society where gun companies are accountable for their products under the law.

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Erwin Chemerinsky is Dean and Distinguished Professor, and Raymond Pryke Professor of First Amendment Law, at the University of California, Irvine School of Law.

Sam Kleiner is a fellow at Yale Law School's Information Society Project.

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