Step Right Up and Plug State’s Gun Loophole

The California Legislature should act immediately to overturn the Monday state Supreme Court ruling that protects gun manufacturers from being held liable, even when they design and market their products as tools for mass killings.

The California Supreme Court, in a 5-1 decision, interpreted a state law enacted in 1983 as exempting gun companies from the usual rules of product liability. Because the decision was based entirely on the interpretation of this statute, the Legislature can act to close the loophole.

Monday’s case involved a gun, the TEC-DC9, that was manufactured and advertised to appeal to criminals. One brochure distributed by the manufacturer boasted that the finish on the gun provided “excellent resistance to fingerprints.” Obviously, only those planning to use a gun in criminal activities would find this appealing. The ads also emphasized that the gun had 32 rounds of firepower and claimed that it was a “radically new type of semiautomatic pistol.”

The gun clearly was designed to appeal to criminals. It has a threaded barrel, allowing the attachment of silencers and flash suppressors, which are restricted under federal law. Also, the gun has a barrel shroud, which is unique to military weapons, which disperses the heat generated by the rapid firing of numerous rounds of ammunition. This allows the user to grip the weapon with both hands and facilitates spray-firing. Only criminals would find it useful to spray a large field of bullets quickly.

Expert witnesses in the case testified that the gun was “completely useless” as a hunting tool and undesirable, compared with other guns, for self-defense. This is a gun that was made to kill a large number of people very quickly, and this is exactly how it was used in this case. In 1993, a man in San Francisco murdered eight people and wounded six others in a shooting rampage in an office building. A lawsuit was brought against the gun manufacturer claiming that it made the weapon knowing that it had no legitimate sporting or self-defense purpose and that it was “particularly well adapted to a military-style assault on a large number of people.”

The state Court of Appeal ruled that the gun company could be held liable, but the California Supreme Court on Monday reversed that decision. The high court based its decision on a California law that provides that a gun manufacturer may not be held liable in a product liability action on “the basis that the benefits of the product do not outweigh the risk of injury posed by its potential to cause serious injury, damage, or death when discharged.” In other words, the court said that the statute exempts gun manufacturers from the usual rules of liability that apply to other products.

The state Legislature should act quickly to repeal this law and make it clear that gun manufacturers can be held liable under the usual principles of product liability law and especially under the traditional rules that impose greater duties on those who make particularly dangerous products. The law should be explicit that those making and distributing weapons owe the public a duty of care in designing and marketing guns.

Holding a gun company liable does not deny that the primary wrongdoing was by the assailant who fired the weapon. But neither should gun companies be able to hide behind this ruling as an excuse to make and promote a weapon that has no purpose other than murdering human beings.

The law holds manufacturers liable as a way of compensating injured people and of deterring the making of dangerous products. Ensuring liability for gun manufacturers would accomplish exactly those objectives.

This issue should not be confused with the national debate over whether people have a constitutional right under the 2nd Amendment to own guns. Whatever one’s view on that issue, there is absolutely no limit on the California Legislature’s ability to ban military assault weapons or to create civil liability for those who make and distribute them.

A basic principle of U.S. law is that manufacturers are liable for the foreseeable harm that a dangerous product causes. A manufacturer that makes a gun like the TEC-DC9 profits enormously because of its appeal to criminals. It should be held liable for exactly that reason when it is used in criminal activities.