Gun violence is a problem in America, and everyone knows it. There are strong opinions about what to do. Some people think military assault rifles need to be banned or restricted in their availability, but others disagree.
It is worth asking if the civil justice system can play a part in reducing gun-violence. Why shouldn’t the jury decide whether promoting large-caliber, high-power weapons of war, to the average consumer, makes them unreasonably deadly when used to murder innocent civilians? They can do this for any product in America, as long as the industry doesn’t have special immunity from Congress or another legislative body.
Second Amendment protects gun ownership, but not gun manufacturing.
Gun manufacturers and dealers are immune from civil liability for nearly all gun violence cases. The Protection of Lawful Commerce in Arms Act was passed by Congress in 2005 with the express purpose of exempting gun manufacturers from civil liability. The gun industry is free to produce and promote guns in any way they choose. There are now more than seven-times as many guns in circulation today in the United States as there were when the PLCAA was passed in 2005.
Would mass tort litigation, if the PLCAA or similar state laws gun industry immunity statutes are repealed force gun manufacturers into marketing and design changes which would result in less violence? Answering that question is not clear. Professor Timothy Lytton has published a paper in a law journal that compares the anatomies of mass tort lawsuits that have improved public safety with those that have not. In his essay entitled Using Tort Litigation To Enhance Regulatory Policies Making: Evaluating Climate-Change Litigation Considering Lessons From Gun-Industry And Clergy-Sexual Abuse Lawsuits Texas Law Review Vol. Lytton, in 86:1837, argues that mass tort litigation has four distinctive characteristics.
- The defendant’s actions are viewed with a great deal of outrage by the public.
- Press coverage of successful trials or settlements for plaintiffs.
- The litigation exposes the defendant’s cover-up, which can be corrected.
- Plaintiffs’ relief in court should complement, not compete with, the objectives of the policy-making institutions.
Lytton compares the cases of clergy sexual abuse in the 1980s with those brought against gun manufacturers during that time. He concludes that the clergy sexual abuse cases had a greater impact on public safety than the cases against the gun industry, because they benefited from the four factors above in a way that the gun cases didn’t. He notes that most people did not know that clergy pedophilia was widespread before the lawsuit, and that the news of the litigation sparked public outrage against the churches that were harboring and concealing it. The plaintiffs’ attorneys in this litigation were viewed as heroic whistleblowers who exposed reprehensible conduct.
He notes that, on the other hand, cases brought against gun manufacturers have been met with negative publicity and opposition by lawmakers. Many Americans are against gun regulation. Many Americans blame gun violence on shooters. They, and others, see cases against gun manufacturers either as a clever plaintiffs’ attorney scheme targeting a “deep pocket” and/or a political motivated attempt to restrict access to guns. Gun manufacturers exploited these sentiments to gain legal immunity in Congress and many states.
Gun violence is on the rise in America. Will the civil justice system provide a forum to assign liability to members of gun industry and, if so, what impact? It’s still up to the jury. Literally.
The article Can mass tort litigation reduce gun violence? first appeared on Attorney at Law Magazine.