Skip to comments.Tough Task Ahead in Gun-Industry Immunity Fight
Posted on 04/25/2003 6:03:58 AM PDT by Joe Brower
Tough Task Ahead in Gun-Industry Immunity Fight
The prospect of a Senate filibuster to stop a bill that would immunize the gun industry from most lawsuits appears likely when Congress resumes its session April 28 following the Easter break. In early April, the House passed a nearly identical bill by 285-140, and the Senate already has 52 co-signers.
Opponents of the Senate bill have talked of a rare filibuster in an attempt to head off the measure, which is assured of President Bush's signature. But as it stands, if supporters can get eight of the 48 nonsigners to vote for cloture, they will have enough votes to stop a filibuster.
American Bar Association (ABA) legislative counsel E. Bruce Nicholson, who has followed the issue closely, says that while the task of defeating the Senate bill may be difficult, some Senate staff people he's talked to believe that opposition to the bill is steadfast. "The thinking is that because the NRA had worked so hard to line up sponsors, they talked to everyone," Nicholson said. "So of the 48 (nonsigners) there must be strong reservations." The conclusion, he said, is that it may be difficult to find enough crossovers among the nonsigners to prevent a filibuster.
Meanwhile, the Brady Center to Prevent Gun Violence United With the Million Mom March and other organizations are seeking to draw broad public attention to the pending Senate bill. The Brady/MMM group has scheduled a protest for Saturday morning, April 26, at the National Rifle Association's annual members meeting in Orlando.
The gun industry already enjoys unusual protection because Congress specifically exempted it from Consumer Product Safety Commission regulation in 1976. Nevertheless, supporters of the immunity bill believe that's not enough. According to legal analysts, if the immunity legislation becomes law, it will provide the broadest legal protection ever granted to an individual industry. While the gun lobby obviously has pushed hard for the immunity bills, legal analysts also believe that the bills are an outgrowth of a broader "tort reform" movement that has arisen in the business world to fight against verdicts that are percieved as excessive. The gun-industry immunity bills, however, would create an exemption of a different dimension.
"When I think of tort reform, I think of caps on pain and suffering or eliminating punitive damages for certain kinds of cases," said attorney Bill Harwood, chair of the ABA's Special Committee on Gun Violence and president of Maine Citizens Against Handgun Violence. "This goes back and simply shuts and locks the courthouse door to the plaintiff and doesn't give them even the first dollar of recovery."
Timothy D. Lytton, a professor at Albany Law School, describes himself as a "centrist" on gun issues. He thinks municipalities and gun-control groups are making a weak case with broad lawsuits against the gun industry for creating public nuisances, for example. But he is adamant that courts should be free to make those decisions.
"The problem with the immunity bill is that it's going to sweep out not only the suits that probably would eventually be turned down by the courts, but it's also going to sweep out suits that I think are important to make legislative regulation effective," he said.
Lytton has written four law-review articles about gun litigation and is completing a book on the same subject. His principal argument is that the civil-justice system is a necessary component of wise public policy on guns in the U.S.
Lawsuits against gun manufacturers help build more sensible gun laws and regulations in a variety of ways, he explained. One, he said, is that lawsuits can restrict the boldness of manufacturers in seeking to exploit gaps in legislation. In the case of Halberstam v. Daniel, for instance, a gun manufacturer was circumventing gun regulations by selling gun "kits," which customers could buy and assemble without having to go through background checks. The manufacturer was sued, but even though the plaintiff failed to recover any damages because the jury found that the defendant company wasn't negligent in causing the death and injury that prompted the suit, it stopped selling the kits. Furthermore, Lytton said, the suit discouraged other manufacturers from trying to sell gun kits.
Another regulatory benefit of lawsuits, he said, is that they effectively expand the government's scarce regulatory resources. The nation's 100,000-or-so retail dealers can expect a visit from Bureau of Alcohol, Tobacco and Firearms only every few years, Lytton said. "With the tort system, if someone's bad behavior causes injury to somebody, they can be held accountable by private lawsuits. "So you have almost a system of private attorneys general," according to Lytton.
A third broad benefit provided by lawsuits, he said, is that litigation uncovers information that is relevant to regulation. "Legislatures don't have all the information that they need about the gun industry in order to regulate it properly, and it's very hard to get that information. One way to get it is through litigation. Plaintiff lawyers are more tenacious and less beholden to anybody else, and they're capable of unearthing information that regulatory agencies often can't get hold of."
It was plaintiffs' lawyers who found the information that was used in lawsuits against the tobacco and asbestos industries, he pointed out, "and I think it's probably true with the gun industry. There are a lot of questions about marketing strategy and what the ideas are about illegal gun trafficking, and that information is more likely to come out through litigation than any other way."
Lytton stresses that his advocacy of the civil court system as a necessary venue for sound gun regulation does not imply that it should be used as an alternative to legislatures. Because the gun lobby has been so effective in convincing legislators to pass the laws it wants, the legislative avenue has been a difficult one for people who want stronger gun laws. Some may see the courts as the only good option for holding the gun industry accountable for the costs firearms impose on society.
Lytton argues that the proper place for gun control to be worked out is the legislature because its job is to develop broad solutions. "But once the legislature decides what it wants to do, you really need the tort system to make it effective," he said. "Without the tort system, I think alot of legislation, no matter what it is, is going to be ineffective."
Besides wiping out the 30-odd lawsuits that have been filed by cities and counties against the gun industry in an effort to receive compensation for the public costs of gun violence, the immunity bill would also ban liability suits when guns are used in "unintended" ways, Lytton said. That is, while a hunter apparently may still be able to sue a gun manufacturer for injuries resulting from a gun that backfired during a hunt, a child who suffers an injury from a backfiring hunting gun while playing with it in the back yard apparently may not recover and receive compensation if the immunity bill becomes law, Lytton said.
Harwood said that if the immunity law passes, "it may be the first time the federal government would be shutting and locking state courthouses to plaintiffs." He considers it hypocrisy that the same group that has pushed for the bill, the NRA, is a group that otherwise promotes decision-making as far away from Washington as possible. "Now they've come up with a one-size-fits-all solution to this social problem and they're shoving it down the throats of every state."
The fight isn't over yet, as the ABA's Nicholson has pointed out. The opposition to gun-industry immunity among the 48 Senate nonsigners may be unusually strong. Stories about how the bill would bar the survivors of the D.C. Beltway snipers from having their days in court, despite clear patterns of negligence on the part of the sniper gun's maker and the shop they got it from, are appearing in the media. A New Jersey police officer, David Lemongello, testified against the House bill because he has filed suit against a pawn shop that sold a handgun that wounded him and a colleague during a stake-out. He spoke about his desire to seek some measure of justice.
Lawmakers have already demonstrated that they don't like to give sweetheart deals to the gun industry when people are looking and listening. Last fall, Congress was all set to pass the immunity bill. But when the snipers struck and public turned its attention to Congress, lawmakers knew that the bill was politically costly during an election year. But it is clearly one of the NRA's top legislative priorities of the 2003 session, and the people whom they've helped to elect know its payback time.
And yes, I'm not too keen on the federal government making rulings over the states on these matters, but so much widespread damage has been done by the anti-gunners using this approach, it's time for some "realpolitik" on the pro-gun side.
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I prety much agree with that sentiment, but this is an interstate commerce situation which the allows for a Federal solution.
As for the filibuster, it worked for the Estrada thing, I think. Filibusters don't seem to be much of an inconveniece any more.
And here it is, total garbage. Bushmaster had nothing to do with how their product was acquired or used. This is the very nonsense that must be stopped.