December 14 marked the grim third anniversary of the Sandy Hook Elementary School massacre. Not even the senseless gun deaths of of 20 children and 6 adults moved Congress to enact gun control legislation following the shootings. America is still waiting.
Most recently, Roseburg, Oregon, San Bernardino, California, and Colorado Springs, Colorado, have joined the growing list of communities scarred by an avoidable, yet jarring, statistical narrative we’ve almost become numb to. In 2015 alone, America lost an average of six people a day to guns. Mass killings claimed the lives of 400 in this country. Another 1,700 people were killed in accidental shootings.
...the sale and manufacturing of guns is a consumer products problem.
But even if our nation overcomes a seemingly entrenched resistance to gun control, legislative fixes will not be enough to stop the deadly proliferation of unsafe guns in the hands of unstable people. What’s missing in the current debate is that the sale and manufacturing of guns is a consumer products problem.
If 2,100 people had been killed this year when using a car, crib or chalkboard, the seller and maker of that product would have been sued in court and forced either to pay for past negligence or incentivized to make the product safer. Lawsuits serve as the impetus for common sense reforms, but the gun industry is exempt from such liability when it’s negligent. The reason for that is disturbingly simple: In 2005, President George W. Bush signed into law the Protection of Lawful Commerce in Arms Act (PLCAA), which stopped all past and future lawsuits against any company and any person that manufactured or sold guns.
The law is doing its job, protecting an entire industry from being subjected to the civil liability that all other industries face; it’s just not protecting people from the industry itself.
Bars and restaurants became much more proactive in cutting off alcohol to customers once they became liable for turning a blind eye to intoxicated people driving home. When a gun dealer sells 6,000 rounds of ammunition, body armor and military-grade guns, he knows the customer is not hunting deer.
If there were a legal hammer — financial liability for the gun dealer who sells military-grade weapons to a person who is mentally disturbed or an ideologue — there’s no question true background checks would be implemented. The gun dealers would pay a lot more attention to who is using their products and how, just like other industries did when the legal hammer swung their way.
Among the myriad examples:
- In 1969, a 4-year-old was injured when her pajamas caught fire from an electric stove. The clothing manufacturer knew of the fabric’s flammability but, in an effort to save money, chose not to treat the clothing with a flame-retardant. The jury award against the company incentivized the entire industry to develop and use fire-resistant fabrics in children’s clothing.
- In 1985, Playtex had been selling a highly absorbent tampon that it knew increased the risk of Toxic Shock Syndrome. At least 2,000 women contracted this condition. After a woman died, a jury awarded the family $10 million in damages. Playtex took the tampon off the market when the judge offered to reduce the jury award if it did so.
- In 2005, a 22-month-old toddler died after swallowing magnets that were ineffectively secured in a plastic toy. The federal agency charged with regulating consumer products received 1,500 complaints. Only after the parents of the toddler sued the company did the company make the toy safer and the federal agency create industry-wide regulations.
The list is as long as the number of items Americans buy and use on a daily basis have had numerous common sense safety features added not by legislation, but by lawsuits: air bags in cars; mandatory safety testing of toys, clothing, sporting equipment, pharmaceutical drugs and appliances, to name but a few examples.
Reforms to counter negligent production and sale of guns should be on that list. Guns, by design, are a product that employs deadly force. The Second Amendment is irrelevant to this equation; people still have the right to own guns. It is nonsensical that guns are the only product not bound by the same rules that all other for-profit companies producing commercially-available products must follow.
When a gun dealer sells 6,000 rounds of ammunition, body armor and military-grade guns, he knows the customer is not hunting deer.
Gun accidents are also preventable, especially through technology. We can’t answer our smart phones without the registered owner entering a code or fingerprint. That technology and many more safety features exist for guns. But the industry is not adopting them, and Congress is too dysfunctional to impose them.
For those who believe we are helpless to stop the proliferation of unsafe guns and unstable buyers, there is a quick and meaningful solution: Revoke the PLCAA. It's time to repeal the gun industry’s license to maximize profit without having to answer for the mistakes and shortcuts that lead to deadly or life-destroying consequences of its products.
This piece was co-authored by Anthony L. Label, a law partner at the San Francisco-based Veen Firm, PC. He is a trial attorney with expertise in consumer protection and product liability.