Wade's Gun Shop, Bellevue, Wash.
Daniel Williams, a 16-year-old high school basketball star, was shot and badly injured while practicing outside of his home in Buffalo, N.Y. In October, a New York appeals court did something fairly remarkable. It let Williams proceed with a lawsuit against the maker and seller of the gun that that was used to shoot him.
Letting a lawsuit go forward may not sound like a big deal, but Congress enacted a law in 2005 — under heavy lobbying from the NRA and the gun industry — that gives gun manufacturers and dealers broad immunity from being sued. The Protection of Lawful Commerce in Arms Act (PLCAA) shields the gun industry even when it makes guns that are unnecessarily dangerous and sells them recklessly.
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Since the Sandy Hook Elementary School killings, there have been widespread calls for Congress to pass gun control laws — and it should. But there has been less talk about another important tool that could be used to reduce gun violence: lawsuits against the gun industry. Some of these suits can succeed despite the PLCAA — as the Daniel Williams case shows — and we need more of them to be filed. But if Congress wants to get serious about gun violence, it should repeal the PLCAA.
Civil lawsuits do two important things: they compensate people who are injured by the bad acts of others and they penalize people and companies for bad behavior. If a company knows it may have to pay a large amount of money if it poses an unreasonable threat to others, it will have a strong incentive to act better.
Lawsuits prod companies to make their products safer. Years ago, lawsuits over the Ford Pinto’s fuel tank fires led Ford to recall the troubled car and improve the design. Since then, all sorts of consumer products — from aboveground swimming pools to children’s pajamas — have been made safer by litigation or the threat of litigation.
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Lawsuits also make retailers act more prudently when they sell things. “Dram shop” laws are a classic example. These laws, which allow victims of drunk drivers to sue the bar that sold the liquor, put pressure on bars and restaurants not to let people drive home drunk.
Before the PLCAA, lawsuits were starting to prod the gun industry to act more responsibly. In 2000, Smith & Wesson, the nation’s largest handgun manufacturer, agreed to a variety of safety conditions to end lawsuits that threatened to put it in bankruptcy. Among other things, Smith & Wesson agreed to put a second, hidden set of serial numbers on all of its new guns to make it harder for criminals to scratch away the identifying markings.
But the PLCAA took away the pressure to work on safety. Protected against lawsuits, gun manufacturers have less incentive to develop improved technology for locking guns when they are not in use and gun dealers have less reason to worry about whether the person they are selling a firearm to will use it to commit a crime.
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The PLCAA contains exceptions that allow lawsuits in some cases — and gun control advocates and victims of gun violence should bring more suits that take advantage of these exceptions. One of the biggest exceptions is a provision that allows gun makers and sellers to be held liable when they know they are breaking a federal or state law. This is the one the New York appeals court relied on in allowing Daniel Williams’ suit to proceed. Williams is suing the Ohio seller who sold the firearm used to shoot him. He is alleging that the seller had reason to know that the buyers were gun traffickers who would turn around and resell the guns they bought on the criminal market.
The Brady Center to Prevent Gun Violence is using this same loophole in a wrongful death suit that it filed this month on behalf of a 36-year-old woman who was shot by a stalker. The suit charges that Armslist.com, an Internet gun website, sold the gun used in the crime to the killer even though he did not live in state, as the law requires.
Lawsuits that use PLCAA loopholes to hold the gun industry accountable are important, but they are not enough. We are hearing a lot about gun rights these days — including from the Supreme Court, which has greatly expanded the Second Amendment right to bear arms. But with rights come responsibilities. Congress should repeal the PLCAA and require the gun industry to act according to the same standards of responsibility and safety as the rest of us.