Coverage of gun liability limitation- liberal slander or Ryan cluelessness?

Great Debates
1

A bill, Protection of Lawful Commerce in Arms Act (PLCAA), is working its way through Washington. Several editorials have criticized it, and while there are points to be made against it, many of those presented strike me as completely baseless. For instance, the San Francisco Chronicle says “The ‘Protection of Lawful Commerce in Arms Act’ would immunize gunmakers and dealers from liability even if they violated federal and state laws by marketing illegal weapons or selling illicit to buyers”. An editorial in Newsweek made a similar claim. But PLCAA says “The term `qualified civil liability action’ [i.e. an action dismissed by this act] … shall not include … an action in which a manufacturer or seller of a qualified product [gun or ammo] knowingly and willfully violated a State or Federal statute …”
full text

The Chronicle also states that “It would…exempt [the firearm industry] from federal health and safety regulations”.

Am I reading the same PLCAA as them? Where are they getting this? Am I missing something, or are opponents simply making up accusations against this bill out of whole cloth? And will people actually address these questions rather than debating PLCAA itself (yeah, right)?

2

I think the problem is that you stopped your quote too early. Right after the elipses, in Section 4, subsection 5, paragraph a, subparagraph iii(the exclusions) the full text reads thusly.

Joint conditional. As far as I can tell this makes it possible to violate laws during the sale or marketing of a firearm(i.e. misrepresenting a banned weapon as a non-banned weapon) as long as the legal infraction was not a cause of the harm being sued for relief from. I’m not sure what this covers, but I would guess the criticism stems from that weasel-wording in the bill. What are the rules of “proximate cause”? Do they have to sell it directly to a known felon to be linked through “proximate cause” to the harm? No idea, I’d need some of the legal dopers to chime in here, maybe minty will stop by and explain the legal concept of proximate cause.

I found this definition which states that the burden of proximate cause lies on the party who controls the last event in a sequence of events which leads to harm at which point the sequence could have been broken if that party had acted differently. As far as I can tell this would absolve gun manufacturers almost completely, as the critics claim, because there will almost ALWAYS be a third party without whose actions the harm would not have been caused. I guess this may still leave the manufacturers on the hook if they sell to known felons, but aside from that, the person using the gun will virtually ALWAYS be the link at which the “proximate cause” test stops.

I take no position as to if this is a good thing or not, just pointing out my layman’s opinion of where the critics may be deriving their interpretations.

Enjoy,
Steven

3

I’m no lawyer, nor have I read the entire law, but the simple point of this legislation- or at least, this type of legislation- is to reduce frivolous lawsuits and “law by litigation” concerning an otherwise-legal product.

And that’s the key- Love 'em or hate 'em, firearms are legal products to manufacture and sell, as long as all current State and Federal laws are observed.

The majority of the frivolous lawsuits have concerned alleged misuse- IE, somebody takes a gun and shoots somebody else with it. The suits have claimed the firearm is inherently dangerous, or doesn’t have adequate safety devices.

The problem is, the firearm worked as designed. Surprisingly few truly defective firearms reach the stores, and those that do are recalled so quickly it’ll make your head spin.

The manufacturer, however, cannot control who uses it, or who buys it, AFTER it has been otherwise legally sold to a licensed dealer, and the dealer has sold it to a valid buyer.

Many suits against the gun makers, if extended to, say, automobiles, would mean GM, Ford and Chrysler-Dodge would then be liable and responsible for things like drunk drivers, hit-and-runs, or plain old collisions.

Examples:

A) Ford makes F-150 truck, dealer buys truck, first owner buys it from dealer, buyer later sells to friend, friend then sells to some guy through the newspaper. Guy later gets plastered and mows down a group of nuns as they’re leaving the convent.

Is Ford responsible?

B) Smith & Wesson makes .357 revolver, dealer buys from S&W, first owner buys from dealer, owner sells to friend, friend sells to guy he doesn’t know, guy later holds up convenience store with it and shoots clerk.

Is S&W responsible?

Keep in mind the manufacturing and distribution of firearms is heavily regulated. Each and every unit is serial numbered (even factory test pieces, experimental units, and tooling dummies) and each and every one has to be tracked, tallied, and accounted for. Losing track of just one is reason enough for the BATFE to revoke a manufactrer’s license to make.

Manufacturers sell ONLY to properly licensed dealers- again, selling to anyone BUT said properly licensed dealer is reason enough to revoke licenses and impose extremely stiff fines.

Dealers are heavily regulated, their books are regularly checked, and they have to run an FBI check over the 'phone on each and every sale- again, if the paperwork is not in perfect order, if any sales are made without the NICS check, if a firearm is unaccounted for, severe penalties and fines await.

If you don’t pass the NICS, you don’t get the gun, period, end of story.

So in short, firearms are legal products, already heavily controlled, and manufactured and distributed in accordance with existing public law.

The suits claiming they are “defective” or “dangerous” are essentially frivolous, and are intended to cripple or bankrupt the manufacturers through litigation. Suits claiming the manufacturers did not “do enough” to keep the guns out of criminals’ hands are frivolous, because the manufacturer has zero control of the item after it has been sold- just as GM cannot control drunk drivers, and PC makers cannot control spammers or hackers.

I doubt the law was written to “immunize” the makers against actual design flaws or other factors for which they can be, and are, responsible. And being immune from violating laws? Get real- if the BATFE found out that Jerry’s Discount Gunmaker Company was selling rifles out the back door with no paperwork, law or no law the entire Justice department would have the place shut down before you can say Janet Reno.

Which is as it should be- believe it or not, even the NRA does NOT want firearms to be totally uncontrolled, or handed out free like Halloween candy.

As for exempting from H&S regs, that doesn’t mean that Smith & Wesson can remove all their handrails and take away all the workers’ safety glasses. It simply means they don’t have to plaster fifteen disclaimer notices or warning labels to each gun.

4

The law certainly allows lawsuits that meet certain criteria, and I think this is the guy definition:

(B) NEGLIGENT ENTRUSTMENT- In subparagraph (A)(ii), the term `negligent entrustment’ means the supplying of a qualified product by a seller for use by another person when the seller knows or should know the person to whom the product is supplied is likely to use the product, and in fact does use the product, in a manner involving unreasonable risk of physical injury to the person and others.

So you would have to prove that the gun seller knowingly sold the gun to a criminal. And this is the sticking point with the anti-gun lobby, e.g., Justice for Gun Victims:

"The gun industry has long known that its practices aid criminal access to guns–yet continues to do nothing about it. Just last month, a former gun industry insider and high-ranking NRA official blew the lid off the gun industry’s code of silence.
In an affidavit, former Executive Director and Director of Government Affairs of the American Shooting Sports Council and former Assistant General Counsel for the NRA Robert A. Ricker described a “see-no-evil, hear-no-evil, speak-no-evil” mentality within the gun industry.
According to Mr. Ricker’s declaration, “many manufacturers and distributors consistently refuse to address the problem of the ‘felons among us.’ They instead hide behind the fiction that as long as a retail dealer has valid federal firearms license to sell guns, no attention to the dealer’s business practices is required by its suppliers.”

http://www.jointogether.org/gv/news/alerts/reader/0,2061,562314,00.html

It looks like the law would allow actions against gun sellers for selling guns to criminals, but would eliminate actions against the manufacturers and distributors higher up in the chain. So the little guys, gun shop owners, will be in court defending themselves rather than the gun manufacturers and distributors.

The usual product liability stuff in in place for the manufacturers.

5

brain to fingers: key definition not guy definition

6

Mtgman appears to be correct about the weasel words, though not about the precise words that are weasely. “Proximate cause” is an element of every tort suit, so that’s not unusual. What is unusual is the requirement that the defendant must have “knowingly and willfully” violated a state or federal statute. This provides blanket protection for defendants whose condict is only negligent or even grossly negligent.

Ignorance, it seems, is the friend of the gun lobby.

7

Well, color me shocked! Mind if I minorly hijack the thread to ask exactly how a gun manufacturer can be considered proximate cause to an instance of violence with a firearm? My understanding of proximate cause (gained around two AM last night from a handful of law reference cites I googled, so I’m happy to have it corrected if it’s wrong) indicates that tracing the harm back up the path of parties involved in the sequence of events stops as close to the harm as possible. As soon as you find a person whose actions, had they been proper, would have averted the harm, there is your proximate cause and the others are off the hook. I may just not have enough creativity to imagine the types of permutations of crimes and harm which can be caused by various parties, including gun manufacturers, and firearms. An example of a situation where a gun manufacturer would be correctly identified as the proximate cause to harm would be enlightening.

Enjoy,
Steven

8

Oh, and on the topic of the OP. The way this bill would seem to immunize the industry from lawsuits on negligence, or even gross negligence, grounds. I’d guess that is what the critics are seeing as the get out of jail free card with regards to health and safety regulations. That point is a little more subtle, but one of the stated purposes of the bill is to ensure firearms are easily and readilly available to the public when they want them. It also contains explicit denouncements of the heavily-regulated state of the industry as of now. I’d guess the gun control advocates see this as a bill which will strip some of those regulations(which I didn’t see explicit language to do, but it may be a springboard to other repeals), or at least to defang those regulations(with the limitations on suits).

Enjoy,
Steven

9

“Proximate cause” has any number of different formulations. In a nutshell, it boils down to the question of whether the causal action is related closely enough to the harm that we’re comfortable holding the defendant responsible for it. This is often expressed in terms of foreseeability, i.e., was it foreseeable that the harm would result from the conduct? Except in the most extreme of cases, proximate cause is an issue for the jury, not the court, to decide.

How proximate cause applies in any particular case is, of course, dependent upon the facts of the case. If a gun seller were to sell a gun to a guy who looked really pissed off and unbalanced, even though he passed his bare-bones background check, it certainly could be foreseeable that the sale would result in an act of violence against somebody. I don’t know if that’s ever worked in a lawsuit, but I see no reason why it would not.

In the case of gun manufacturers, plaintiffs have alleged in several cases that the defendants’ marketing plans were designed to keep selling guns to people who weren’t necessarily eligible to own them, e.g., avoiding state purchase limits, or just not giving a damn who ends up with their products. That’s a much dicier causal connection than the individual sellers, and it has not worked in any lawsuit so far. For further information on this approach to gun lawsuits, you may want to read this Findlaw column.

10

Nice link, minty. Thanks.

11

As near as I can recall, the main argument vs. the manufacturers is this:

  • They are flooding states where gun laws are relatively lax with cheap firearms, knowing full well that those guns will eventually make their way (illegally) into states with stricter laws, where they will be used to commit crimes.

I think without internal documents (like the tobacco co.‘s internal admissions that cigs are harmful), you’ll be hard-pressed to prove such an allegation–since the manufacturers’ reasonable explanation of such practices (flooding gun-friendly states) is that, “well, damn it, it’s HARD to sell them in the gun-strict states, so we have to make our money somewhere…” (I guess the followup question is, “but how could the residents of that state possibly use 57 handguns [fictional number, mind you] apiece each year? You had to wonder where those guns were going…”)

12

I interpret the term “immunize” as “eliminate liability”, not “eliminate liability in certain cirmcustances”. If the bill didn’t affect liability at all, it would be rather pointless, wouldn’t it?

Of course. This is dealing with civil actions, not criminal actions. You can’t sue someone simply because they violated the law; that would be absurd. You have to have actually suffered.

I assume you meant to say “This bill would seem to immunize…” If so, you are misataken. First of all, this bill only addresses cases involving action by third parties. Gun manufacturers are still responsible for their own actions. Secondly, the bill still allows, under certain circumstances, for manufacturers to be sued for actions of third parties.

I hope you’re using the term “get out of jail free card” metaphorically, because this has ABSOLUTELY NO EFFECT on criminal action. This bill would offer absolutely no protection against ciminal prosecution under health and safety regulations. So it appears that unless those regulations are entirely civil, the Chronicle is seriously misinformed.

Roger_Mexico

No, all that has to be proven is that the seller was negligent in determining whether the seller was a criminal.

I suppose that would depend on whether selling the gun to a criminal is itself using the gun “in a manner involving unreasonable risk of physical injury to the person and others”.

minty green

Not if the statute in question prohibits negligent behavior.

13

Don’t be ridiculous. The proposed act would eliminate all liability unless the defendant acted “knowingly and willfully” in violation of a statute. By definition, one does not act “knowingly and willfully” if one’s conduct is merely “negligent,” even if that negligent conduct violates a state or federal law.

negligence

knowing

willful

14

Hey, if you didn’t want to know, why did you ask?

Enjoy,
Steven

15

I said that negligence does not mean immunity if that negligence were prohibited by law. You say that that is “ridiculous”, and the reasoning you give to support that is apparently that, should any law prohibit a particular form of negligence, then it would no longer be “mere” negligence. I suppose your nitpick it correct; negligence, in and of itself, is not enough to establish liabilty under this clause, even though negligent acts can incur liability. But that is already true; mere negligence doesn’t create liability by itself, there always is something beyond mere negligence. Your assertion boils down to the statement “not all instances of negligence would result in liability” which, while true, should not be at all surprising. Wording it as you did was misleading; you might as well have claimed that it provided a blanket protection for mere rudeness; if anyone performed any act which was both rude and actionable, then it wouldn’t be “merely rude”. Regardless, the preceding clause says that “an action brought against a seller for negligent entrustment or negligence per se” will not be dismissed by this act. So I really don’t see how your position is anything more than an irrelevant nitpick.

Moreover, none of this addresses the central question: are the claims made about this act accurate? The Chronicle did not claim that the act protects against liability from “merely” negligent acts. It claims that the act protects against liability from violations of the law. Is that allegation accurate?

Mthman: whom and what were you addressing?

16

Except, of course, that the proposal under discussion would insure that negligence in the sale of firearms means immunity for the defendant, regardless of any state or federal law predicated on a negligence standard. Other than that pivotal consideration, you’re entirely correct.

What the heck ever. Read the statute. Negligence don’t enter into it.

This is not a fucking nitpick, Ryan. The legal distinction between negligent conduct and willful/knowing conduct is tremendous. If you eliminate negligence, you eliminate 95% of all tort claims. That may, of course, be fine with you, but I personally have no problem holding people accountable for their ignorance and stupidity, not merely for conduct that they explicitly intended to cause harm.

[Torts 103]Duty, breach, cause in fact, proximate cause, and harm.[Torts 103]

We’re talking about “duty” here, Ryan. The particular duty at issue is “negligence”–the very thing that the proposed act would imunize from liability. It prevents the gun-selling defendant from being liable in tort for doing something ridiculously stupid, in contrast to pretty much every other act on the planet. Despite your objection, it goes pretty much without saying that if you do something stupid and nobody gets hurt, you ain’ty liable for that complete absence of harm.

Wrong. My statement is that **NO[/n] instances of mere negligence would result in any civil liability under this statute. After all, it immunizes all gun-seliling conduct EXCEPT “knowingly and willfully” violating another statute. Merely being a dumbass ain’t acting knowingly and willfully.

Nonsense. The proper comparison would be immunity for engaging in “mere rudeness” (the vast majority of offensive behavior) while allowing liability for knowingly and willfully insulting another person.

That clause only applies to “sellers,” not manufacturers or distributors. Smith & Wesson can act incredibly stupidly, yet they will be completely immunized against any civil liability thanks to this statute, because they are not a “seller” to anybody other than distributors.

[quote]
Moreover, none of this addresses the central question: are the claims made about this act accurate? The Chronicle did not claim that the act protects against liability from “merely” negligent acts. It claims that the act protects against liability from violations of the law. Is that allegation accurate?[/qote]Yes. Under the current civil law of some states (either common law and/or statute), a defendant can be held liable in damages for negligently manufacturing, selling, or distributing a firearm. This act would eliminate all liabilty for negligently breaking those laws.

17

So you are seriously saying that if this law passes, absolutely no instance of negligence in the sale of firearms will result in liability? If a law says that a seller must check IDs, and the seller doesn’t, that’s negligence. But it would still create liability.

:confused:
You’re the one who brought up negligence. Now you’re saying it doesn’t enter into it.

Yes, it is. You said that mere negligence deosn’t create liability. I said that certain types of negligence do create liability. You responded that once the negligence has been qualified, it is no longer mere negligence. This is a nitpick. Negligence can create liability, and the word “mere” is a weasel word.

They are not mutually exclusive. If the law sets a minimum standard of care, and you are aware of this yet consciously decide to ignore it, you are both negligent and willfully breaking the law.

I don’t know what would make you think I think otherwise.

And apparently your definition of “mere” is “qualified in any way”. Since"actionable" is a qualification, your statement is logically equivalent to saying that the set of nonactionable negligence is nonempty.

Here’s the reasoning one more time. Tell me where you stop agreing:

  1. You said that no instance of mere negligence would result in liability.
  2. By “mere”, you mean “having no qualities beyond the essential qualities of negligence”.
  3. If there are instances of negligence which do not establish liability, then liability is not an essential quality of negligence.
  4. Therefore, if there instances of negligence which do not establish liability, then mere negligence does not result in liability.
  5. Furthermore, if mere negligence does not result in liability, then liability is not an essential quality, and therefore there is at least one instance lacking that quality.
  6. One can then conclude that if mere negligence does not create liability, then there is at least one instance of negligence that does not create liability, and vice versa. Therefore, the statement “no instance of mere negligence would result in liability” is logically equivalent to “There is at least one instance of negligence which does not result in liability”.
    QED

You didn’t include that last part in your original statement, why should I include in my comparison? Besides, I was making an analogy to one of your statements, not trying to encapsulate your entire position.

I don’t see how you can claim that S&W are completely immunized, while admitting that they are in fact sellers.

Either those laws apply to the courts (by telling them they can hold people liable) or they apply to the gun industry (by telling that it is illegal to act negligently).
If the former, then the gun industry is not breaking any laws. If there’s a law that says that I can be held liable if I do X, and I do so anyway, I’m not breaking the law.
If the latter, then the gun industry is breaking the law, and presumably doing so willfully and knowingly. They can therefore be held liable.

Anyway, this is still completely missing the point. One more time. The Chronicle said “The ‘Protection of Lawful Commerce in Arms Act’ would immunize gunmakers and dealers from liability even if they violated federal and state laws”. It did not say it would immunize gunmakers against some laws. It said it would immunize them against laws in general. Even if what you say is true, the Chronicle’s reporting would still be as accurate as if they had said that a recent Supreme Court decision immunized gays against criminal prosecution, even if they had broken the law.

18

Apart from the explicit exception for the specific tort of “negligent entrustment,” that is correct.

Not unless that failure to check IDs amounts to negligent entrustment under state law.

Negligence alone never creates liability. Negligence that proximately causes harm is actionable. No harm, no foul. This bill assures that negligence that causes harm will not be actionable even if it proximately causes harm.

I have no idea what you’re talking about, and therefore categorically deny that I ever said any such thing.

Correct. But that in no way negates the simple fact that if you only negligently break that law, this proposed law would fully immunize you from civil liability.

Negligence is only one element of an actionable tort, Ryan. Duty, breach, causation, proximate cause, and harm. Without all of those elements, negligence is simply not actionable. It is negligent to drive through a school zone at 100mph. If nobody gets hurt, it is not actionable negligence to drive through a school zone at 100mph.

WTF? Seriously, dude, I have no idea on earth what you’re talking about or what relevance it has to the topic at hand.

They’re manufacturers, and manufacturers’ negligent conduct is also immunized from liability under the proposed law. Read the definitions in the act.

Not “either”; both.

Congratulations, you identified an error in a news story. Alert the FBI. :rolleyes:

19

FWIW the San Francisco Chronicle article The Ryan claims is at least inaccurate, perhaps slander(libel would be more correct here), can be found right here.

Enjoy,
Steven

20

So the phrase “negligence per se” has no meaning? And what about negligent acts that don’t involve the acts of third parties?

So that part about “knowingly and willfully violated a State or Federal statute” just doesn’t matter?

Then what does this mean?

What is you definition of “merely negligent”?

Ah, now you’ve gone from “merely” to “only”. This law won’t immunize people “only” being negligent, because they are already safe.

So you agree that only negligence is already not actionable?

I have. There’s nothing in the definition of “manufacturer” which provides immunization.

If you insist on nitpicking, then actually the correct conjunction would be “ior”. But that doesn’t affect my reasoning. This law would not eliminate any liability for breaking laws, unless it was done either without knowledge, or not willfully.

Congratulations, you’ve spent several posts trying to hijack a thread, and responded sarcastically when this was pointed out to you :rolleyes:.