In the debate on Thursday, April 14, 2016, Secretary Clinton accused Senator Sanders of protecting gun manufacturers from lawsuits brought by people injured by their products, a privilege which she said was unique to the gun industry. What did she mean, and is it true?
Product liability law
Your car, your lawn mower, kitchen appliance, or any other consumer product you can think of, is supposed to be safe. In other words, if the user of the product follows the instructions and is using the product for its intended purpose, no one should get hurt. If a consumer or bystander is injured while using a lawn mower to mow the lawn, for example, the injury is probably the result of a defect in either the design or the manufacture of the product. The injured party can sue, and the manufacturer will be held liable if the product was designed or manufactured in a manner which made it unsafe. On the other hand, if the consumer was using the lawn mower to break up concrete, the manufacturer is not liable.
Guns are different
One of the problems with applying this law to guns is that even when they are legal to own, their intended purpose is to injure or kill a person or animal. The basic premise, that the injury is caused by a defect in design or manufacture, simply does not apply to guns.
The Protecting Lawful Commerce in Arms Act (PLCAA) (P.L. 109-92) gave gun makers and sellers immunity from civil lawsuits brought by people who were injured as a result of a third party’s criminal or unlawful use of a gun they sold. Although the PLCAA protects sellers from many lawsuits by people who are injured by the lawful or unlawful use of a gun, it contains important exceptions. Sellers are not protected from lawsuits involving:
- negligent entrustment of a weapon to someone that the seller knows, or reasonably should know, is likely to use it in a manner that creates an unreasonable risk of injury to others;
- transfer of by someone who has been convicted of violation of 18 U.S.C. §924(h) or a felony violation of a similar state or federal law, where the lawsuit is brought by the person harmed by the violation of the law;
- knowing violation by the manufacturer or seller of a state or federal law governing the sale or marketing of guns or related products, when the violation is a proximate cause of injury;
- injury caused by defects in the design or manufacture of the product when used as intended or in a reasonably foreseeable manner, unless the discharge of the weapon was an intentional criminal act;
- actions for breach of contract or breach of warranty; and
- proceedings brought by the Attorney General to enforce certain provisions of the criminal or tax laws.
Note that the “knowing violation of state or federal law governing sale or marketing” includes: (1) omissions or false entries in records required to be kept; (2) aiding or abetting in false statements made with respect to any fact material to the question whether the purchase and sale are lawful; and (3) aiding or abetting in a sale when the seller knows or has reasonable cause to believe that the actual buyer is prohibited from possessing or receiving a gun or ammunition under 18 U.S.C. §922.
So, the law Sanders supported exempts gun makers from liability for many injuries that result from their products, but it doesn’t go as far as Clinton suggests. Like sellers of any other product, sellers of guns are liable if their product injures the user or another because of defective design or manufacture. The sellers are liable if they participate in the sale of a gun to someone they know (or should know) is likely to commit a crime or hurt people with it, or who is not legally authorized to have it.
During the April 14 debate, Secretary Clinton claimed that a consumer injured by a toy gun has more legal protection than someone injured by an actual weapon. It sounds unfair, but what’s the point? The toy gun won’t hurt anyone unless it is defective or misused. The problem is that it is legal to make, sell, own or use guns even though their only use is to cause injury or death. Sanders considered the needs of owners of small gun stores, who, he believed, should not be sued or put out of business for selling a product they are legally authorized to sell. Perhaps unfortunately for Sanders, this nuanced view doesn’t lend itself easily to snappy sound bites.