Gun Industry Liability: Lawsuits and Legislation

Gun Industry Liability: Lawsuits and Legislation

Order Code RS20126
Updated March 30, 1999
CRS Report for Congress
Received through the CRS Web
Gun Industry Liability: Lawsuits and Legislation
Henry Cohen
Legislative Attorney
American Law Division
Summary
A number of cities have recently filed suit or plan to file suit against gun
manufacturers and gun marketers. These suits are based on different legal theories, but
they all seek to recover the cities’ expenses resulting from the use of guns. About 20
states, however, are considering legislation to prevent their cities from suing the gun
industry, and, on February 9, 1999, Georgia became the first state to enact such a law.
Members of the 106 Congress, meanwhile, have introduced bills to permit and t
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preclude suits against the gun industry.
History: Maryland and D.C.
In 1985, the Maryland Court of Appeals announced that it was changing the common
law “to hold the manufacturers and marketers of Saturday Night Special handguns strictly
liable to innocent persons who suffer gunshot injuries from the criminal use of their
products.” Kelley v. R.G. Industries, Inc., 497 A.2d 1143, 1159 (Md. 1985). This ruling
changed the common law in that the common law holds manufacturers and sellers strictly
liable (liable without regard to negligence) for injuries caused by products only if they are
defective, whether in their manufacture, their design (in that a safer version of the product
was feasible at the time of manufacture), or because of a failure to warn users of the
product’s hazards. Saturday Night Specials, in general, were not defective in any of these
senses. The Maryland legislature, however, overturned the court decision, and Maryland
Annotated Code Article 27, § 36-I(h) now prohibits liability except in traditional
circumstances or if the defendant conspired with or willfully aided or abetted the criminal
who used the firearm.
The District of Columbia City Council, by contrast, enacted the Assault Weapon
Manufacturing Strict Liability Act of 1990, D.C. Code § 6-2392, providing: “Any
manufacturer, importer, or dealer of an assault weapon or machine gun shall be held
strictly liable in tort, without regard to fault or proof of defect, for all direct and
consequential damages that arise from bodily injury or death if the bodily injury or death
proximately results from the discharge of the assault weapon or machine gun in the District
of Columbia.” This statute remains in effect, but apparently has never been used.
Congressional Research Service ˜ The Library of Congress

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For information on lawsuits in other jurisdictions, see Annotation: Handgun
Manufacturer’s or Seller’s Liability for Injuries Caused to Another by Use of Gun in
Committing Crime, 44 ALR4th 595.
Suits by Cities
The cities of Atlanta, Boston, Bridgeport, Chicago, Miami, New Orleans, New York,
Newark, and Philadelphia are among those that have recently filed suit or plan to file suit
against gun manufacturers and gun marketers. These suits are based on different legal
theories, but they all seek to recover the cities’ expenses resulting from the use of guns.
The expenses sought vary among the lawsuits, but include the costs of medical treatment
for victims of gunshot wounds, additional police protection, washing blood off the streets,
counseling survivors of murder victims, decreased property values, and other things.

The lawsuits, in general, do not seek to change the common law, as Maryland
(briefly) and D.C. did, by holding defendants strictly liable for non-defective products.
Rather, they are based on traditional legal theories, such as design defect, negligent
marketing, public nuisance, and violating local anti-gun laws. The design defect claims
allege that guns are manufactured either without adequate locking or “personalizing”
devices that would prevent children or other unauthorized users from firing them. The
negligent marketing claims allege, among other things, that guns are sold to “straw
purchasers,” who purchase guns not for themselves but for someone, such as a convicted
felon, who is disqualified from buying a gun.
Although the legal theories behind the cities’ gun suits are not necessarily
unprecedented, the fact that cities, rather than individuals, are bringing these suits is
generally unprecedented, though the cities’ gun suits were, as the Wall Street Journal
(March 12, 1999) noted, “indisputably spawned” by the states’ suits against the tobacco
industry. For additional information on the cities’ gun suits, a forthcoming law review
article, City Lawsuits Against the Gun Industry, by Brian J. Siebel, is available at
http://www.handguncontrol.org/c-main.htm
States’ Response to the Cities’ Suits
A Pennsylvania legislator, according the Associated Press (March 19, 1999), plans
to introduce a bill to make Pennsylvania “the first state to consider giving its cities a
guaranteed right to sue the gun industry for product liability.” Another Pennsylvania
legislator, however, has filed legislation to prohibit political subdivisions from bringing
such suits , and about 20 other states are also considering legislation to prevent their cities
from suing the gun industry. On February 9, 1999, Georgia became the first state to enact
such a law; its H.B. 189 provides: “The authority to bring suit and right to recover against
any firearms or ammunition manufacturer, trade association, or dealer by or on behalf of
any governmental unit . . . shall be reserved exclusively to the state.”
A bill introduced in Florida would make it a crime punishable by up to five years in
prison and a $5,000 fine for any local government official to file suit against a gun
manufacturer.

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Congress’s Response
H.R. 1032, 106 Congress, the Firearms Heritage Protection Act of 1999, woul
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prohibit any pending or future “qualified civil liability action” from being brought in any
federal or state court. It would define such an action as a civil action brought against a
manufacturer or seller of a firearm or ammunition, or a component part of either product,
“for damages resulting from the criminal or unlawful misuse” of the product. It would
allow such a suit only if the defendant had already been convicted of transferring a firearm
with knowledge that it would be used to commit a violent crime.
H.R. 1049, 106 Congress, the Firearms Industry Responsibility Enforcement Act,
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would create a federal cause of action that could be brought by anyone “damaged because
of the discharge of a firearm . . . against the manufacturer, distributor, or retailer of the
firearm if the firearm had been in interstate commerce and the manufacturer, distributor,
or retailer was negligent in its manufacture, distribution, or sale.” The plaintiff in such an
action could sue not only on his own behalf but “on behalf of the political subdivision of
a State and the State in which such individual resides to recover the medical and law
enforcement costs of the State or political subdivision arising out of the discharge in the
State or political subdivision of firearms.” The latter damages would be paid to the state
or political subdivision. Note that the damages sought on behalf of a state or political
subdivision would be medical and law enforcement costs arising out of the discharge of
“firearms,” in the plural. This suggests that a single plaintiff could recover, for a state or
political subdivision, all the medical and law enforcement costs arising out of the discharge
of all firearms that the defendant had negligently manufactured, distributed, or sold. If a
plaintiff recovered these costs, then a subsequent plaintiff presumably could recover from
the same defendant only such costs as arose from the defendant’s negligence after the
injury to the first plaintiff.
H.R. 1086, 106 Congress, the Gun Industry Responsibility Act, provides: “In any
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civil action by a State or unit of local government against a manufacturer of firearms to
recover damages relating to the sale, distribution, use or misuse of a firearm . . . the State
or unit of local government may, in addition to other damages, recover any Federal
damages associated with the claim . . . .” The bill defines “Federal damages” as “the
amount of damages sustained by the Federal Government . . . including damages relating
to medical expenses, the costs of continuing care and disabilities, law enforcement
expenses, and lost wages.”
A state or unit of local government seeking to recover Federal damages would be
required to notify the Attorney General, who would then have 30 days to enter an
appearance in the action. If the Attorney General does not do so, or does so but does not
proceed with the action within six months after entering an appearance, then the state or
unit of government may continue to seek Federal damages; otherwise it may not. If a state
or unit of local government recovers Federal damages, then it would have to turn 1/3 over
to the federal government.
H.R. 1233, 106 Congress, the
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Firearms Rights, Responsibilities, and Remedies Act
of 1999, would create a federal cause of action on behalf of “a State, unit of local
government, organization, business, or other person that has been injured by or incurred
costs as a result of gun violence.” Such plaintiff would be authorized to bring suit, in
federal or state court, “against a manufacturer, dealer, or importer who knew or

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reasonably should have know that its design, manufacturing, marketing, importation, sales,
or distribution practices would likely result in gun violence.”
S. 560, 106 Congress,
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the Gun Industry Accountability Act, is identical, except for
its title, to H.R 1086, 106 Congress.
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S. 686, 106 Congress, the Firearms Rights, Responsibilities, and Remedies Act of
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1999, is identical to H.R. 1233, 106 Congress.
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