California Bar Journal
spacer.gif (810 bytes)


spacer.gif (810 bytes)
The suits against firearms
spacer.gif (810 bytes)
spacer.gif (810 bytes)
Firearms take an enormous toll on human life in the United States. In addition to gun violence, there are approximately 1,500 accidental shooting deaths each year. According to the General Accounting Office, 35 percent of such deaths involve children between the ages of 13 and 18. Additionally, countless individuals, including children, are maimed by gun accidents. In response to this tragic toll, 10 major cities - including Los Angeles and San Francisco - have sued gun manufacturers.

Although each of these suits seeks money damages from the manufacturers, different theories for recovery have been advanced. Some of the suits have relied on traditional products liability law. For instance, Los Angeles and San Francisco, in part, have alleged that gun manufacturers have failed to place adequate safety mechanisms on guns, including child safety locks and devices that allow only the owner to fire the gun.

This is a classic products liability claim that there is a defective product and the manufacturer should be held strictly liable for the harms that it causes. There is substantial evidence that technology, such as child locks and devices to limit who can shoot the gun, could save many lives every year.

Erwin ChemerinskyOther suits claim that gun manufacturers have been negligent in the manner in which guns are distributed and that they should be held liable for creating a public nuisance. On Feb. 11, 1999, a jury in federal district court in New York, in Hamilton v. ACCU-TEK, found gun manufacturers liable in seven New York-area shootings because of their negligent marketing practices. The plaintiffs claimed that the defendants had created a risk with indiscriminate marketing of guns and that their negligence had resulted in an illegal distribution system. The 11-person jury awarded the sole survivor $560,000.

This victory undoubtedly has inspired many cities to file suits based on similar theories. Los Angeles and San Francisco in their civil suits contend that gun manufacturers are selling their product in a manner that facilitates the supply of firearms to the criminal market. The plaintiffs accuse gun manufacturers of providing guns to disreputable dealers and to dealers in areas where there are lax controls, knowing that these dealers are likely to sell guns to criminals.

San Francisco and Los Angeles also are suing gun manufacturers based on California consumer protection law. Their claim is that gun manufacturers are violating these laws in failing to monitor the distribution of the guns and by engaging in a deceptive business practice by flooding the market with far more guns than it can absorb for legal purposes.

Although these suits seem novel, they are using traditional tort law principles to hold a manufacturer lia-ble for the harms caused by its product and by its own failures in design, distribution and marketing. Through-out this century, American tort law has emphasized the importance of holding manufacturers liable so as to compensate those injured and to create an incentive for safe products. Also, liability is premised on the view that those who use the product should bear the costs that imposes on society. The suits against gun companies simply seek to apply these well-established principles to guns.

Firearms have a devastating impact on American society. The lawsuits seek to have gun manufacturers do a better job of installing safety equipment, such as child locks, and controlling the distribution of their products. It is likely that there will be many more suits against gun companies by cities and by victims of gun accidents and gun violence.

Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California School of Law. Alexis Lury provided research assistance.