The recent shootings at Sandy Hook elementary school in Connecticut and at the movie theater in Aurora, Colorado have reignited the controversial debates surrounding gun control. Regrettably, it has taken these unfortunate events to provide the initiative to implement gun control regulation that makes sense.
In the past six years, the federal government and states, including Oklahoma, have passed a series of so-called tort reform laws, which largely have reduced, if not eliminated, liability for certain industries such as gun manufacturers.
In 2009, as part of Oklahoma’s tort reform initiative, the legislature passed a firearm liability limitation contained in Oklahoma’s Comprehensive Lawsuit Reform Act that is very similar to The Protection of Lawful Commerce in Arms Act (the “Gun Protection Act”), a federal law passed in 2005.
The Protection of Lawful Commerce in Arms Act
The 2005 Act prohibits civil claims against gun manufacturers and dealers for the misuse of their products by others. At the time the Act was enacted, it dismissed all of the then-current claims against gun manufacturers in both federal and state courts and pre-empted future claims. This law explicitly stated its purpose as “to prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for harm caused solely by criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.”
However, the Act does not prohibit claims that involve a manufacturer or dealer who knowingly violates a gun-control law. For example, a claim is not barred when a case involves the violation of the Brady Act, which requires licensed firearms dealers to conduct a background check on buyers.
As the law stands today, when the few gun dealers or distributors have actually been found liable, the facts usually involve the firearm being unlawfully sold. As a result, it is a highly fact-intensive inquiry that is very difficult to prove.
In a recent case in Alaska against a gun store owner, the central issue is whether the defendant stole a gun that was later used to shoot and kill a 26 year-old or whether the gun store owner unlawfully sold the gun to the defendant. If the gun was unlawfully sold to the defendant, then the lawsuit is not barred by the Gun Protection Act.
The attorneys for the victim in Alaska also argued that the Act is unconstitutional. They asserted the Act violates the Tenth Amendment, which allows the states or the people to decide matters that are not addressed by the federal government. The attorneys argued the law is stepping on state’s rights by taking away the discretion of state court judges in areas of law that are traditionally left to the states. In doing so, the Gun Protection Act pre-empts state laws by imposing a special, higher standard for negligence actions for a single protected class. The Alaska state court ultimately rejected these arguments.
Nonetheless, the Court of Appeals for the Second and Ninth Circuits have found the Act constitutional. SeeCity of New York v. Beretta U.S.A. Corp., 524 F.3d 384 (2d Cir. 2008) and Ileto v. Glock, Inc., 565 F.3d 1126 (9thCir. 2006).
Opponents of this law are quick to point out the numerous loopholes. Under the law, private sales transactions made at gun shows and those made at a gun store are treated differently. At a gun show, merchants are not required to conduct a background check on buyers. According to a recent Gallup poll, the popularity gun shows has increased ten-fold and 40% of guns purchased in the U.S. within the last year were bought at gun shows.
Oklahoma’s Comprehensive Lawsuit Reform Act of 2009
Oklahoma’s version of tort reform legislation passed in November 2009 contains Firearm Liability Limitations, which provides similar expansive provisions of immunity for the firearms industry.
76 O.S. § 51. Unlawful Use of Firearms – Proximate Cause of Resulting Injury
The unlawful use of firearms [not their lawful manufacture, distribution, or sale] is the proximate cause of ANY injury arising from their unlawful use.
76 O.S. § 52. Liability of Firearm Manufacturers, Distributors, and Sellers
Manufacturers, distributors and sellers of firearms cannot be held liable for damages to a victim who is injured or killed as a result of having been shot by a person using a firearm which was lawfully manufactured, distributed or sold.
76 O.S. § 54. Application of Act to Certain Claims and Civil Actions
This section contains similar exceptions contained in The Gun Protection Act. This section makes it very clear that a firearm that the potential of a firearm to cause serious injury (the essential purpose/function of a firearm) when discharged cannot deem a firearm a defective product, thus not including certain products liability claims within its scope.
Recently Proposed Gun Control Legislation
A bill backed by Rep. Carolyn McCarthy (D-N.Y.) and Diana DeGette (D-Colo.) is one of the many bills recently proposed in Congress. This bill would ban magazines for more than ten rounds of ammunition and prohibit the transfer, possession or importation of those magazines that are manufactured after the date of the law being signed.
There has also been an initiative to renew the Federal Assault Weapons Ban that expired in 2004. Under this law, individuals are prohibited from possessing high-powered firearms that have the ability to shoot hundreds of rounds of ammunition in minutes. One type of weapon in this category is the AR-15, which is the civilian semi-automatic version of the M-16 used by the military. This is the type of gun that was allegedly used in the recent Sandy Hook elementary school shooting.
Those who oppose the Federal Assault Weapons Ban and supporters of the Gun Protection Act, as it stands, claim that the litigation against gun manufacturers and dealers as a strategy used by liberals to drive gun manufacturers out of business. More surprisingly, those supporters claim that a ban on assault weapons will not prevent criminals from obtaining these high-powered firearms, although the studies of the efficacy of the 1994 law clearly show otherwise.
In contrast, those who support the renewal of the assault weapon ban counter that the fact of criminal noncompliance has never been accepted as a reason against a regulation. Gun manufacturers should be held liable for injuries that foreseeably result from their products. There is scant justification for the firearm industry to be exempt from civil liability. Perhaps large punitive damage awards will force them to change their practices or maybe not. But at the very least, now that the recent unfortunate gun violence has put the gun control regulation issue in the spotlight, the push for new legislation that makes sense may be within an arms reach.