Lawyers, Guns, and Money: The Impact of Tort Restrictions on Firearms Safety and Gun Control
This executive summary is taken from the March 1996 study Lawyers, Guns & Money: The Impact of Tort Restrictions on Firearms Safety and Gun Control by the Violence Policy Center and Public Citizen.
On March 10, 1995, the United States House of Representatives passed H.R. 956, the "Common Sense Product Liability and Legal Reform Act." The deceptively named bill embodies the product liability restrictions of the Republican "Contract with America." On May 10, 1995, the Senate passed its version of product liability "reform" legislation, S. 565, the erroneously titled "Product Liability Fairness Act." Although the bills differ in details the House legislation is much broader in scope, applying to all civil actions, not just product liability cases both are designed to restrict the ability of consumers injured by defective products to receive adequate compensation and to hold accountable negligent and reckless corporations.
Despite the fact that firearms kill nearly twice as many Americans as all household consumer products combined, no federal agency has the necessary authority to ensure that guns do not explode, or unintentionally discharge when they are dropped or bumped. This is unique. For example, the federal Consumer Product Safety Commission (CPSC) exists to make sure that consumers are not killed or injured by common household and recreational products. The agency tries to ensure that toasters don't explode, toys don't come apart, coffee makers don't catch fire, and that the myriad of consumer products within its jurisdiction are safe. Yet for firearms and ammunition the tort system is the only check on safety.
Although the federal Bureau of Alcohol, Tobacco and Firearms (ATF) licenses manufacturers, dealers, and importers, it has no general safety authority, e.g. the power to set safety standards or institute recalls. ATF's limited jurisdiction over gun manufacturers, importers, and dealers does not include basic health and safety standards. Currently, the civil justice system is the only mechanism available to protect consumers from defect-related death and injury and to ensure that guns that are sold are safe and free from defects in design or manufacture.
The tort system is important to efforts to reduce firearms violence from two perspectives. First, to address the problem of unintentional fatal and non-fatal injuries associated with defectively designed and manufactured firearms and ammunition. Second, to hold accountable sellers and manufacturers who knowingly market and sell their products to such obviously high-risk individuals as criminals and minors. Traditional product liability lawsuits have been of tremendous importance in regulating the safety of firearms and ammunition and compensating consumers who suffer injury or death caused by a manufacturer's or dealer's negligence.
Because of firearms' unique exemption from safety regulation, the House and Senate tort restriction bills would have a magnified negative impact on firearms safety and the victims of gun violence. In recent years, some of the greatest gains in efforts to reduce firearm-related death and injury have occurred not through legislation, but litigation. Courts have helped deter the manufacture, sale, and use of unsafe firearms and have issued landmark rulings in cases involving assault weapon manufacturers, gun show promoters, and firearm retailers. Many of these gains could be jeopardized if the proposals contained in the House and Senate bills become law. There would be disastrous effects on the already feeble incentives for firearms and ammunition safety and significant benefits would accrue to the firearms industry.
Lawyers, Guns, and Money examines the detrimental impact that the tort restriction proposals passed by the House and Senate would have on firearms and ammunition safety and on efforts to reduce firearms violence through the civil justice system. It also documents the role played by the firearms industry and pro- gun interests in lobbying for tort restrictions. The study demonstrates that the supporters of tort restrictions include the manufacturers and sellers of some of the country's most dangerous and deadly products.
The full 74-page study is divided into three sections. Section One details the involvement of the firearms industry and pro-gun lobbying organizations in efforts on Capitol Hill to enact tort restrictions. Section Two examines specific components of the House and Senate bills and the benefits they would offer firearm manufacturers. Section Three is the study's conclusion. The full study also contains seven appendices containing many of the articles and documents referred to in the text.
Section One: The Involvement of the Gun Lobby in Lobbying for Tort Restrictions
The Role of the Industry
Considering the unique health and safety function performed by the civil justice system with respect to firearms and ammunition, it is not surprising that the firearms industry is actively backing limits on civil liability.
Sturm, Ruger & Company, Colt, and other major firearm manufacturers have been long-time members of several organizations pushing for liability restrictions, such as the Product Liability Coordinating Committee (PLCC). The American Shooting Sports Council (ASSC), one of the gun industry's leading trade associations, is a member of the American Tort Reform Association (ATRA), a coalition of large corporations and insurance companies working to weaken the civil justice system on both the state and federal levels.
The American Shooting Sports Council was formed in response to the 1989 federal ban on the importation of foreign-made assault rifles. ASSC Executive Director Richard Feldman was formerly executive director of Product Liability- Sports (PLS), the political arm of the Sporting Goods Manufacturers Association (SGMA). An SGMA pamphlet describes PLS as "dedicated to reforming the tort liability laws which adversely affect the American sports industry." ASSC counts among its members: assault weapon manufacturers Intratec and Calico; Saturday Night Special handgun manufacturers Bryco and Lorcin; and mainstream manufacturers such as Smith and Wesson. According to Gun Week, Victor Schwartz who is affiliated with both the Product Liability Coordinating Committee and the American Tort Reform Association and is probably the most visible lobbyist for tort restrictions accepted an invitation by the ASSC to address its 1995 annual Congressional lobbying day or "Fly-In" to talk about pending product liability legislation.
Other ATRA members include the Sporting Arms and Ammunition Manufacturers Association (SAAMI), and Sturm, Ruger & Company, manufacturer of the Old Model single action revolver. The Old Model single action has been the subject of hundreds of product liability lawsuits. Stephen L. Sanetti, Sturm, Ruger & Company's vice president and general counsel, serves as a member of the board of directors of the Product Liability Advisory Council, Inc. Sanetti serves along with executives from major pharmaceutical, automobile, and other large manufacturers.
Bob Delfay executive director of both SAAMI and its larger sister trade organization, the National Shooting Sports Foundation (NSSF) has identified as particularly problematic for the industry suits alleging that gun manufacturers should be held strictly liable for injuries caused to innocent parties when manufacturers knowingly design and market their products for criminal use. Such cases have already been filed against the manufacturers of the firearms used in the 1993 Long Island Railroad massacre and in the 1993 shooting at the San Francisco law firm of Pettit and Martin.
Moreover, the gun press members of which derive substantial income from firearms industry advertising keeps its readers abreast of the latest developments in the battle over tort restrictions and encourages political activism in support of measures to limit the liability of the firearms industry. For example, an April 1995 Gun Week article entitled "Are You Speaking With Congress?" urged the pro-gun community to make its concerns heard on Capitol Hill and listed product liability as one of the "issues of special interest to gun owners and those concerned with their firearms rights." Most recently, Robert Hausman, wrote in the January 1996 issue of Guns and Ammo magazine that "[t]he main benefit to the firearms industry would be the cap on punitive damages...."
The Role of the National Rifle Association
Although the National Rifle Association of America (NRA) insists that it represents the interests of firearm consumers and not those of the industry, it has joined with gun manufacturers and industry trade associations in support of legislative measures restricting liability even though many gun owners are injured by defectively designed firearms each year.
In a July 1995 interview in Guns and Ammo magazine, NRA Executive Vice President Wayne LaPierre was asked, "What's the NRA looking at in the area of tort reform concerning firearms liability? This is important because this is obviously restrictive on the part of the manufacturer and these costs are passed on to the consumer." LaPierre responded, "We are part of the coalition that is pursuing legislation.... The industry is certainly carrying the brunt of the issue, but we're lending support."
According to Senate staff, during consideration of S. 565 this Congress, the NRA sought a Senate sponsor for an amendment that would have established a complete defense in any product liability action where the plaintiff's harm was the result of criminal misuse of the product. The effect of the amendment would have been to shield manufacturers and dealers from liability in a wide variety of cases.
Section Two: Specific Benefits Tort Restrictions Would Offer the Firearms Industry
Because the manufacture of firearms and ammunition is virtually unregulated, the civil justice system provides an essential safety check on the firearms industry. As a result, the firearms industry would benefit greatly from limitations on the tort system.
This section details some of the specific ways in which the product liability provisions passed by the House and Senate would weaken consumer protection from unreasonably dangerous firearms, reduce compensation for injured gun owners and victims of firearms violence, hinder efforts to keep guns out of the hands of criminals and youth, and provide significant economic benefits to the firearms industry at the expense of our nation's health and safety.
The bills would radically alter the law regarding punitive damages. Punitive damages are intended to punish and deter outrageous corporate conduct. Punitive damages also help to dissuade manufacturers from making a conscious choice to market a product despite knowledge of an unacceptable risk. They also encourage adequate testing and safety evaluation of a product.
Large punitive damage verdicts often receive attention from the press and the public. However, the facts demonstrate that large verdicts are rendered infrequently and are often reduced in the post-trial process. The most authoritative study on punitive damages ever conducted, Michael Rustad's Demystifying Punitive Damages in Product Liability Cases: A Survey of a Quarter Century of Trial Verdicts, analyzed damages in state and federal courts from 1965 to 1990 and found that only 355 had been made in product liability cases. The study identified only 24 verdicts that included punitive damages in the category of "recreational products," the category encompassing firearms.
Under the proposed changes in tort law, the deterrent and punishment functions of punitive damages would be weakened in several crucial ways.
Heightened Standard of Proof
The bills would raise substantially the standard of proof for punitive damages. Victims of dangerous firearms would have to show by "clear and convincing evidence" that the harm suffered was the result of conduct that was carried out with a "conscious, flagrant indifference" to the safety of others. Currently, many states allow punitive damages to be awarded under a less prohibitive, but still strict, standard. A heightened standard could allow culpable gun manufacturers to go unpunished. [For examples please see Collins v. Remington on page 14 and Johnson v. Colt on page 15 of the full study.]
Cap on Punitive Damages
The Senate bill contains an overall cap on punitive damages of two times compensatory damages or $250,000, whichever is greater. In an attempt to assuage concerns about the harshness of an absolute cap on punitive damages, the Senate included an "additur" provision that allows judges to increase punitive damages to amounts greater than the cap. However, such judicial "additur" provisions have been held to be unconstitutional for use in the federal courts by the United States Supreme Court. In addition, some state courts have held that "additur" violates their state constitutions.
By tying the amount of punitive damages to compensation, the cap would prevent culpable manufacturers from being adequately punished simply because the plaintiff suffered relatively little economic and non-economic harm. This rule also ignores the well-established principle that the purpose of punitive damages is punishment and deterrence, not compensation, and therefore the amount of such an award should be determined by more than just consideration of the nature and extent of the plaintiff's loss. [For an example please see Lewy v. Remington Arms on page 17 of the full study.]
Small Business Cap and How it Would Protect