In its "Guns in Court" [Oct. 12], The Post questions the legitimacy of the lawsuits brought by cities and counties against the gun industry. The Post's arguments reflect a misunderstanding of the role of courts in a democratic society, and would give the gun industry a legal immunity not enjoyed by other industries.
The Post asserts that "[a]s a legal matter, it is hard to see how companies making lawful products can be held liable when those products perform precisely as intended even when the intent is death." This assertion fails to account for the cases in which products have been held unreasonably dangerous in design even though they did not malfunction in any way.
For example, auto makers have been held liable for failing to install seat belts and other safety improvements to increase "crashworthiness," though there was no question that the cars performed "as intended." Their liability could be demonstrated by the existence of safety mechanisms that could prevent injuries and deaths. Similar claims are at the core of the lawsuits against the gun makers.
The city suits complain, for example, of the gun industry's failure to design guns to reduce the risk of unintentional discharge by children and teenagers. Time and again, children shoot themselves and other children with guns they thought were unloaded. In a tragic but typical scenario, a child will remove the ammunition magazine from a semiautomatic pistol and then think the gun is unloaded, only to have a round hidden in the chamber to inflict serious injury or death.
A simple mechanical part--costing less than 50 cents to install--could save lives by preventing the gun from being fired with the magazine removed. A New Jersey appeals court has held that a gun maker can be liable for the accidental shooting of a teenager that could have been prevented by such a modest design change. This is entirely appropriate.
Guns are unique among consumer products in having a statutory exemption from federal safety regulations. The threat of product liability litigation is the only incentive gun makers have to improve the safety of their products. Is it "anti-democratic activism" (to use The Post's phrase) for courts to apply the same product liability standards to guns as they routinely apply to other products?
The argument against the city lawsuits is based on the false premise that a party cannot be liable for conduct that violates no statute. This view confuses criminal liability, which applies only to illegal conduct, with civil liability, which does not. Most of civil tort law concerns the liability of parties whose actions, though they may be legal, nevertheless expose others to an unreasonable risk of harm. If the city lawsuits are "undemocratic" because they are based on rules of law not enacted by legislatures, then all of civil tort law is "undemocratic."
The city lawsuits also charge that the gun industry should be liable for failing to take steps in the distribution and marketing of guns to deny access to criminals. These claims are based on legal precedent establishing that people (and companies) whose conduct violated no law can be held liable for increasing the risk that someone else will act illegally.
Two years ago, the Supreme Court of Florida invoked this principle against a gun retailer in finding that Kmart could be liable for selling a gun to an intoxicated buyer, even though the sale violated no statute. Why shouldn't gun manufacturers similarly be accountable when their negligence increases the risk of criminal violence? A New York federal court decision recently found that handgun makers owe a duty "to exercise reasonable care in marketing and distributing their products so as to guard against the risk of criminal misuse." A California appeals court recently found that a gun maker could be liable for negligent conduct that increased the risk of harm beyond that reasonably to be expected from the availability of firearms. Although the defendant company's irresponsibility in that case was exceptional, the legal principle at stake was not.
The authority of our judicial system to define standards of conduct for individuals and companies is as much a part of our democratic system as the work of Congress or state legislatures. The argument against the gun industry lawsuits amounts to either a rejection of our system of common law adjudication or a plea for a special legal immunity for the gun industry. Either way, the argument fails.
The writer, director of the Legal Action Project at the Center to Prevent Handgun Violence, represents more than 20 cities and counties suing the gun industry.