Law would shield gun makers against suits

On April 9, with the nation focused on the war in Iraq, the U.S. House of Representatives passed a bill to give gun manufacturers unprecedented immunity against most lawsuits, including many currently being litigated.

The purpose of the bill, its sponsors say, is to end lawsuits aimed at making gun manufacturers and dealers pay damages for crime-related firearm violence. But the bill also could end most lawsuits over unsafe, defectively designed firearms, say some product liability lawyers.

Their concern is centered on a clause in the proposed legislation that allows gun defect lawsuits only in cases in which the weapon was "used as intended or in a manner that is reasonably foreseeable."

"This language is a legal smoke screen that puts immense burden on the plaintiff and could effectively end most product liability suits brought today," said Brian Siebel, senior attorney for the legal action project at the Brady Center, a nonpartisan organization working to prevent gun violence. "In its entirety, this bill is a wish list of the gun industry and the National Rifle Association. It is a fantasy bill designed to protect the gun industry for all time at the detriment of victims of gun violence who will have no legal recourse to recover damages if they are injured."

The NRA disagrees.

"This is a commonsense bill to stop frivolous lawsuits aimed at bankrupting law-abiding gun makers," said NRA director of public affairs Andrew Arulanandam. "No maker of defective guns will be protected by this bill."

This editorial, as you can probably guess, is the reason for the whole Special Report; the Detroit News wants to oppose the immunity bill moving through Congress, and they want to make a big splash about it in hopes of actually getting enough attention to stop the bill. They make the claim that the bill will protect gun manufacturers from being sued over the "defects" they have just spent so much space describing. But are they right?

Let's find out.

As noted earlier, the firearms accidents detailed in this special report can be divided into four categories, with differing levels of responsibility between the gun owner and the manufacturer.

Unsafe Behavior

People in this category were shot when a gun was pointed at them and the trigger pulled. The shooter usually believed the gun to be unloaded, but no sane person would describe pointing a loaded gun at someone and pulling the trigger without intending for the gun to fire as an intended use. Either the person intended to shoot, in which case the gun was intended to fire, or the person was engaging in dangerous -- even criminally negligent -- behavior with a loaded firearm.

The law would rightly protect manufacturers from this sort of suit.

Functioning as Designed

People in this category experienced an accidental discharge when they pulled the trigger on their firearm without intending to. In these cases, the gun was clearly not used as intended -- that is, the trigger was pulled without the intent to fire.

The law would rightly protect manufacturers from this sort of suit.

Damaged mechanisms and unsafe handling

Injuries in this category occurred due to a combination of factors. Usually, the firing mechanism of the gun needed to be worn or damaged (rather than new); the damaged mechanism would then become unsafe when the firearm was used as intended. Proper gun handling would have prevented the injuries, but still allowed an accidental discharge due to the faulty mechanism.

This category would not be prevented absolutely by the law, because the accidental discharge could occur when the gun was used as intended, although not on a new (undamaged) firearm. The outcome of each case would likely rest on what sort of damage to the firing mechanism was necessary to induce a risk of accidental discharge, and whether the damage was reasonably foreseeable or part of normal wear on the mechanism.

Dropped Firearms

Cases in this category involve people who dropped loaded firearms and had those firearms go off. The law would offer no special protection here, as a dropped firearm is clearly "reasonably foreseeable"; cases would likely hinge on whether the individual was handling the firearm safely, or whether they were taking risks that increased the chances of dropping the firearm.

So, would the industry be protected from valid lawsuits concerning firearms safety defects? Evidently not. But it would be protected from lawsuits involving criminally negligent behavior by the gun owner or an unauthorized user. And that, I think, is a good thing.

When Congress created the Consumer Product Safety Commission in 1972, it specifically barred the agency from regulating firearms, along with ammunition and tobacco. The agency can?t set safety and design standards for guns and it can?t force a recall of defective firearms.

What the Detroit News won't tell you is that the Consumer Product Safety Commission can't regulate firearms for the same reason it can't regulate tobacco - both products are regulated by the Bureau of Alcohol, Tobacco, and Firearms. Firearms are already highly regulated in their design and manufacture by that agency and directly by federal law.

Under the 2nd Amendment of the Constitution, even this amount of regulation is questionable. Putting firearms under the authority of the Consumer Safety Commission would only make it easier for proponents of gun control to achieve their desire -- that is, banning firearms -- without even a vote in Congress, simply lobbying a federal bureaocrat.

In 1997, Congress cut funding to the Centers for Disease Control and Prevention?s injury prevention center after its research angered the NRA and the gun industry.

Using emergency room data from around the country, CDC-funded researchers produced a series of studies that found the risk of being injured by a firearm was three times higher in homes with guns. The gun industry complained the studies were biased and driven by anti-gun groups.

Congress cut the centers? budget by $2.6 million, the exact amount the CDC spent on the firearms research the previous year.

In addition, Congress has added language in every CDC budget since that prohibits the agency from spending money on studies "to advocate or promote gun control."

The CDC insists its work never advocated gun control. And Congress never has spelled out what constitutes a violation of its order.

Of course the CDC insists that its work never advocated gun control. And yet the work that it funded was so dramatically one-sided and sloppy that no other conclusion could reasonably be drawn. Since the funding was removed, it's interesting to note that while the CDC continues to engage in firearms-related research, the conclusions have changed dramatically. Their most recent research -- a "state of the field" survey of gun control laws -- found absolutely no evidence that any gun control laws had any effect whatsoever on gun safety or crime.

And yet, they asked for more money so they could keep looking. Is it any wonder that Congress doesn't want to throw good money after bad?

The man whose work for the CDC most angered the gun industry was Dr. Arthur Kellermann, chairman of the department of emergency medicine at Atlanta?s Emory University. He insists his research was not anti-gun.

"My work was aimed at giving people information about ways to improve their safety," Kellermann said. "I believe Americans are really smart. If we can find a way to make medicine bottles that are child-resistant, certainly we can do the same for firearms."

I confess to being absolutely flabbergasted that the above quote is all the Detroit News has to say about Arthur Kellerman's research. His studies have been repeatedly discreditted and Kellerman himself has admitted that many of them were irrepairably flawed.