Daniel L. Feldman

Gun Violence: Who Should Pay?

In Criminal Justice Policy, General, National Politics, Policy on July 2, 2013 at 5:51 pm

In April 2013, I sent the following as a proposed Op Ed piece to the New York Times:

THE POLITICS OF GUNMAKER ACCOUNTABILITY

By Daniel L. Feldman*

Hardly does the public hear about proposals to make gun manufacturers financially liable to victims of gun violence when tragedy results from the manufacturers’ careless distribution of their product. When a car manufacturer’s negligence, along with a driver’s, helps cause an accident, the victim can sue both. But right now, since most perpetrators of gun violence don’t have money, the random victim bears the cost, while businesses that profit from such sales get off scot-free.

Politicians allied with the gun lobby have successfully painted the effort to impose financial accountability on gun manufacturers as radical, and thus have kept it outside the mainstream of public discourse. As a recent illustration, Republicans blocked nomination of a candidate for the D.C. Circuit Court, claiming that she had demonstrated her “extreme” views by having worked on a lawsuit against gun manufacturers a decade earlier.

But there is nothing extreme, from a legal or policy point of view, in holding gun manufacturers financially liable for supplying their product to dealers who they know or should know consistently “leak” guns to the criminal market. Indeed, a conservative Republican judge on the New York Court of Appeals, writing a decision in 2001 denying financial relief to gun victims, noted that were gun victims actually to succeed in establishing such facts, gun manufacturers “might well” be liable.

Crime gun tracing data collected by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) showed quite clearly in 1999 that less than two percent of gun dealers leaked the majority of guns to the criminal market, and the manufacturers and distributors know or have reason to know which ones they are. But they continue to supply them with the product.

So beginning in 2003, with the Tiahrt Amendment the NRA got Congress to suppress ATF data revealing the gun industry’s negligence in supplying the criminal market. Two years later Congress enacted the Lawful Protection of Commerce in Arms Act, essentially immunizing the industry from liability for such negligence altogether. The current state of the law, then, should be seen as extreme: an extraordinary exception to deep-seated traditional common law principles that increases the damage to public health facilitated by the worst elements in the American gun industry.

Full financial liability for negligent distribution of their products would give gun manufacturers an incentive to supply only those gun dealers who sell responsibly – the vast majority, in any case. Such a change in the law would assure a substantial reduction in the number of victims.

Even if the Second Amendment had said “the right to sell arms shall not be infringed,” gun manufacturer tort liability would still be constitutional, just as liability for libel and slander remains constitutional notwithstanding the prohibition against “abridging the freedom of speech, or of the press.” The NRA, however, primarily the voice of its financial backers rather than of its members, treats threats to the profits of the industry as more “extreme” than restrictions on gun ownership. On at least one occasion, it awarded an “F” to the most visible proponent of the Brady Law, but an “F-minus” to the sponsor of state legislation to impose tort liability on gun manufacturers.

Thus, the NRA has succeeded in keeping gun manufacturer tort liability on the margins of the gun control conversation. In an honest and rational debate, even those who believe that the Second Amendment creates a general right to bear arms would have to acknowledge that no gun control initiative trespasses less on the Second Amendment than manufacturer tort liability. Rational discourse on this subject should shame Congress into repealing the Tiahrt Amendment and the Protection of Lawful Commerce in Arms Act.

 

 

*Mr. Feldman, an associate professor of public management at John Jay College, served as a member of the New York State Assembly from 1981 to 1998, and in March convened and moderated a panel discussion, “Gun Violence: Who Should Pay?,” at John Jay with U.S. Rep. Adam Schiff (D-Cal.), who recently introduced legislation to repeal the statutes mentioned above; Michael Cardozo, the New York City Corporation Counsel, who has sued gun dealers and manufacturers on behalf of the City; Jonathan Lowy, director of the Legal Action Program of the Brady Center to Prevent Gun Violence; Elizabeth Holtzman, former Member of Congress, District Attorney, and NYC Comptroller, who initiated discussion of gunmaker tort liability more than two decades ago; and David Yassky, NYC Taxi Commissioner and former City Council Member, who in his earlier capacity sponsored the New York City law intended to impose such liability.

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According to my search of the New York Times archives, the last time they mentioned the Protection of Lawful Commerce in Arms Act was in 2008. However, within weeks of my submission, which they did not print, they covered the subject in an article by Jim Dwyer (May 28), an Op Ed by Robert Morgenthau (June 23), and an editorial (June 29). I am pleased that the Times is giving attention to the issue.

[note that although the results below say “1-10 of about 617 Results,” examination of the results past the first 10 do not actually refer to the Protection of Commerce in Arms Act]

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1-10 of about 617 Results

  1. 1.     U.S. Appeals Court Rejects City’s Suit to Curb Guns

That law, the Protection of Lawful Commerce in Arms Act, banned all suits against the gun industry except those in which a plaintiff could prove …

May 1, 2008 – By ALAN FEUER – New York Region – Article – Print Headline: “U.S. Appeals Court Rejects City’s Suit to Curb Guns”

  1. 2.     A Law That Keeps Gun Makers Smiling

The law signed that day, the Protection of Lawful Commerce in Arms Act, has smothered lawsuits by cities around the country, including by New …

May 28, 2013 – By JIM DWYER – N.Y. / Region – Article – Print Headline: “Keeping Gun Makers Smiling”

  1. 3.     A Gun Maker Moves On

3 days ago This outrageous law, called the Protection of Lawful Commerce in Arms Act, can only be envied by other industries whose products might affect …

June 29, 2013 – By THE EDITORIAL BOARD – Opinion / Sunday Review – Article – Print Headline: “A Gun Maker Moves On”

Suing, or Taxing, the Gun Makers

20 hours ago It was necessary to put the Protection of Lawful Commerce in Arms Act into effect to prevent unwarranted and misdirected lawsuits designed to …

July 1, 2013 – The New York Times – Opinion – Article – Print Headline: “Suing, or Taxing, the Gun Makers”

  1. 5.     U.S. Court Rejects New York Gun Lawsuit

That law, the Protection of Lawful Commerce in Arms Act, banned all third-party suits against the gun industry except for those in which a …

April 30, 2008 – By ALAN FEUER – N.Y./Region

Smith & Wesson Is Fighting Its Way Back

A gun-friendly administration as well as a new law signed last fall by President Bush — the Protection of Lawful Commerce in Arms act — that …

April 11, 2006 – By LESLIE WAYNE – Business – Print Headline: “Smith & Wesson Is Fighting Its Way Back”

Let Shooting Victims Sue

They went to work and, the next year, Congress passed the Protection of Lawful Commerce in Arms Act, severely reducing the legal liability of …

June 23, 2013 – By ROBERT M. MORGENTHAU – Opinion – Article – Print Headline: “Let Shooting Victims Sue”

  1. 8.     Judge Clears Way for City to Sue Gun Companies

The judge ruled that the new law, the Protection of Lawful Commerce in Arms Act, does not apply to the city’s lawsuit because it falls under a …

December 3, 2005 – By WILLIAM K. RASHBAUM – New York Region – Print Headline: “Judge Clears Way for City to Sue Gun Companies”

  1. 9.     Lawyers, Guns and Mayors

The Protection of Lawful Commerce in Arms Act would shield irresponsible firearms manufacturers, wholesalers, dealers and trade …

February 24, 2004 – Opinion – Article

10. Votes in Congress

Protection of Lawful Commerce in Arms Act: The bill would make gun manufacturers and dealers immune to lawsuits stemming from the misuse …

April 13, 2003 – New York and Region – Article

http://query.nytimes.com/search/sitesearch/#/Protection+of+Lawful+Commerce+in+Arms+Act/

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