Let’s Not Kill All the Lawyers

Image result for gun liability lawsDick the butcher loudly proclaims to his fellow conspirators: The first thing we do, let’s kill all the lawyers [Henry VI, Part 2, Act 4, Scene 2].

At the close of the 1800s, the Industrial Revolution was taking the lives of 35,000 workers per year in industrial accidents and causing hundreds of thousands of non-lethal injuries, leaving families without a breadwinner. The solution was in the form of government-mandated workers’ compensation insurance, along with child and women’s labor laws. However, the individual consumer was not protected from products manufactured or sold that caused injury.

A legal doctrine that dominated American (and English) jurisprudence required a relationship between the consumer and producer (generally called privity). With the human toll of the Industrial Revolution as background, the New York Court of Appeals in 1916 (MacPherson v. Buick Motor Co.), in a decision by Benjamin Cardozo, bypassed privity in negligence actions and opened the legal door for what we now characterize as product liability:

If he [manufacturer or seller] is negligent where danger is to be foreseen, a liability will follow.

Over the next hundred years, this strain of jurisprudence evolved and matured—often to the dismay of manufacturing and marketing interests, which complained about costs, exposure to frivolous claims, difficulty of insuring against such actions, and the likelihood of increased costs to consumers. Nonetheless, the nation’s output continued to enjoy success even where government agencies also interceded to create and enforce consumer safety regulations in food, autos, the workplace, the environment, and air and water, among a few. Every manufacturer and seller was subject to liability for their products, including design defects and foreseeable injuries resulting from their normal use. In short, it was the cost of doing business in a regulated and competitive market.

Such civil liability, it is argued, enforces safety procedures and processes in the manufacture and testing of consumer products and further ensures that the larger society may be compensated for defects and misuse. The existential purpose of firearms bears no comparison to the non-normative purpose of most products such as autos, tools, etc. The purpose of firearms—to kill—is distinct and singular.

Between 1999 (Columbine High School) and 2005, there were six mass shootings in the United States, and firearms manufacturers and sellers could be held liable for the foreseeable use and misuse of firearms resulting in death or injury. A Latin term often used in the law was res ipsa loquitor, which translates as the thing speaks for itself in terms of the applied use of firearms. Wanton or criminal use of firearms by civilians will result in death or injury. Congress could do something about this situation and, in 2005, it did.

Following a massive lobbying effort by the National Rifle Association, the Senate and House passed the Protection of Lawful Commerce in Arms Act (PLCAA), which was signed into law by President George W. Bush. The new statute shielded gun manufacturers and sellers from tort (wrongful act or infringement of a right) liability, a benefit enjoyed by no other industry. Since its passage, the nation has been witness to a surge in mass shootings involving automatic and semiautomatic firearms that are essentially military weapons, marketed and promoted for civilian acquisition and consumption.

Nearly 7 years later, in December 2012, the mass shooting at Sandy Hook Elementary School in Connecticut took the lives of 26, including 20 children. The weapon was a Bushmaster AR-15 automatic, a bestseller from Remington Arms. PLCAA provides a set of narrow exceptions for individuals to bring a claim and pierce the tort liability shield. One exception is called the “predicate exception,” where the manufacturer or seller violates a state statute. Connecticut’s highest court found that the families of Sandy Hook victims could proceed in their claims that Remington may have pursued “wrongful” marketing activities for the AR-15.

At earlier oral argument, the justices inquired of defendant Remington concerning its claims that the weapon had the ability to “single-handedly” overcome “forces of oppression.” The suit claims Remington marketed and promoted the gun for civilian use to carry out “offensive, military combat missions against their perceived enemies.” The majority opinion held that Connecticut law bars such ads promoting violent behavior.

The regulation of advertising that threatens the public’s health, safety, and morals has long been considered a core exercise of the state’s police power.

Few would, in light of this brief, agree with Dick that all the lawyers should be killed. All concur.

 

 



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