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Letters to the 107th Congress

August 27, 2002

Dear Senator:

I am writing on behalf of the American Bar Association to express our strong opposition to S. 2268, the Protection of Lawful Commerce in Arms Act, introduced April 25, 2002 by Senator Zell Miller and to similar legislation to create special immunity for the firearms industry from ordinary civil liability.

S. 2268 would enact sweeping protections for the firearms industry from ordinary civil actions; create a special, narrow standard for product liability claims; and protect firearms sellers from all civil or equitable claims other those based on negligent entrustment. These proposed new federal standards would apply to actions brought in state courts as well as federal courts, thereby preempting state common law and statutorily authorized actions nationwide on claims of negligence or nuisance brought by any party, when the claim is made against a defendant which is part of the firearms industry.

The ABA believes that these proposed changes in federal and state law would close the doors of the nation's courts to individual citizens, consumers or other parties injured by firearms and are unwarranted and unnecessary. S. 2268 is plainly designed to cut off most civil claims against the industry, as stated in its purpose clause: "to amend the Act establishing the Department of Commerce to protect manufacturers and sellers in the firearms and ammunition industry from restrictions on interstate or foreign commerce." It defines a prohibited "restriction on interstate or foreign commerce" as any action for "civil damages or equitable relief" when such action is brought against a firearms manufacturer or seller unless it derives from a breach of contract or warranty, negligent entrustment of firearms resulting in injury or "improper functioning of a firearm or ammunition product, when used as intended, due to a defect in design or manufacture."

The ABA believes that S. 2268's proposed liability standards are based on faulty and mistaken notions of the state of tort law that, if applied to other industries, would block almost all suits by any claimant seeking damages for tortious behavior. Foremost among these is a proposed new federal product liability standard that would preclude any gun manufacturer liability unless the firearm involved "fails to work as intended." Under this standard, for example, injuries to consumers from guns sold without any incorporated safety devices could not be the basis of a product liability claim resulting in injury no matter how many injuries result from undesired firings, because the gun model was designed to operate without the devices.

This proposed product liability standard contained in S. 2268 is based on a misleading stereotype about the legal principle at issue and is contrary to the basic principles of American tort law. Longstanding product liability principles have provided that a product can be defective in design regardless of whether it malfunctions. A leading, well-known example is provided by the litigation against the Ford Motor Co. a generation ago that resulted in its being held liable for fires caused by the placement of its Pinto fuel tank. While the fuel tank did not cause the car to malfunction, its placement created an unreasonable risk that passengers would be incinerated after a collision. Similarly, if gun manufacturers fail to install proven safety devices to prevent gun accidents, then the guns may be unreasonably dangerous even if they fire bullets properly.

Second, the proposed legislation incorporates limitations on actions, and even bases its title, on a fundamental misunderstanding of the basis of civil liability under our system of laws. The gun industry and the bill sponsors have maintained that gun manufacturers and sellers cannot and should not be liable in tort law because the product involved is legal. This claim confuses criminal liability, which applies only to illegal conduct, with civil tort liability, which does not. Most civil tort law is concerned with the actions of parties whose actions are not criminal but nevertheless expose others to an unreasonable risk of harm. The civil standards that protect consumers from unreasonable - but not illegal - risk of harm exist generally with regard to all products and should continue to apply to firearms as well.

Third, this legislation is based on the faulty premise that the gun industry and firearms sellers cannot and should not be held liable when their products are misused by others. This notion is contradicted by innumerable examples relating to other industries. If this were the state of the law, our nation's courts would not now be holding bar owners and other servers of alcohol responsible for harm that results from serving alcohol to intoxicated patrons who later injure others. Under common law principles and by statute, "dram shop" liability is now a widely accepted part of state tort law. Similar liability principles exist for practices by other industries that result in unreasonable risk of harm to third parties. Most of the relatively small number of suits that have been brought to date against gun manufacturers and sellers have involved ordinary consumers alleging that their they were injured because of the industry's or seller's failure to address recurring safety issues with its products or practices. There is no evidence that the courts are having a difficult time separating the wheat from the chaff in this area. Adoption of the standard proposed in S. 2268 would, in fact, widely preempt state law, and it would deprive federal and state courts of jurisdiction to determine such cases.

Finally, we urge you to reject S. 2268 because its enactment would result in irresponsible federal oversight of consumer safety issues. The broad and, we believe, unprecedented immunity from civil liability that would result from S. 2268 would be created against the existing legal backdrop of the present, unparalleled immunity the firearms industry enjoys from federal safety regulation. Unlike other consumer products, there is no federal law or regulatory authority to set minimum safety standards for domestically manufactured firearms. This is because the firearms industry was able to gain an exemption for firearms from the 1972-enacted Consumer Product Safety Act, the primary federal law that protects consumers from products that present unreasonable risk of injury. Over the last 30 years, an average of 200 children under the age of 14 and over a thousand adults each year have died in accidents with guns which might have been prevented by existing but unused safety technologies. A 1991 Government Accounting Office report estimated that 31 percent of U.S. children's accidental firearm deaths could have been prevented by the addition of two simple existing devices to firearms: trigger locks and load-indicator devices.

The 1972 exemption from federal consumer safety regulation is directly related to civil claims being brought against the gun industry. Without any regulatory safety regulation, the gun industry has never had to adopt minimum product safety standards; and consumers injured with guns that fire when dropped, or that leave an ammunition round in a chamber which may be fired even after the ammunition magazine is detached, have had only their traditional rights to seek redress in the courts to assign alleged legal responsibility to the industry. But this bill, if enacted, would insulate the firearms industry from almost all civil actions in addition to its existing protection from any consumer product safety regulations. Such special treatment for a single industry is not in the best interests of our nation.

For all these reasons, we urge you to oppose S. 2268.

Sincerely,

Robert D. Evans
Director, Governmental Affairs Office


107th Congress Letters Home

AMERICAN BAR ASSOCIATION
Governmental Affairs Office
740 Fifteenth Street, NW
Washington, DC 20005
ph: 202-662-1760
fx: 202-662-1762

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