This interview originally appeared on WestLaw Practitioner Insights and was published by Reuters Legal.
Q&A: Slim prospects for civil litigation over gun violence
by Suevon Lee
Jan 4 (Reuters) – The recent wave of mass shootings has brought renewed attention to the shield against lawsuits gun-friendly lawmakers have erected around manufacturers of firearms. Since 1996, Congress has barred federal funding for public health research relating to guns – which some believe could open the door to the sort of litigation that hobbled the tobacco industry. The 2005 Protection of Lawful Commerce in Arms Act bars state or federal liability claims against gun manufacturers and dealers resulting from the criminal or lawful misuse of a gun.
Reuters discussed the prospects for civil litigation over gun violence with Timothy Lytton, a professor at Georgia State University College of Law and author of the 2005’s Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts. He says gun lawsuits face a tough road, but points out they did even before legislative obstacles were put in place.
Questions and answers have been edited for clarity and brevity.
REUTERS: How have lawyers targeted the gun industry in the past?
LYTTON: Starting in the early 1980s, gun violence victims started to bring lawsuits against the sellers of the weapons they were injured with. In the late 1980s and early 90s, victims started to sue not only the retail seller but also the manufacturer and the distributor [based on theories ranging] from strict liability to negligent marketing.
Very few of those cases even made it to a jury; the vast majority were dismissed. The courts found that gun manufacturers either owed no duty to the general public to exercise care to avoid risk of criminal misuse of their weapons or that the link between marketing activity and criminal shooting was too attenuated. In the late 90s and early 00s, municipalities started to bring lawsuits of this type in order to recover the cost of gun violence to cities – those also mostly did not succeed.
In the early 2000s, the gun industry lobbied state legislatures for immunity from these lawsuits – they won in about 33 states. In 2005, Congress basically provided the same immunity nationwide. Since 2005, most of this litigation has dried up: very few plaintiffs have tried to bring these cases. The federal immunity legislation was extremely discouraging: it all but stopped the litigation phenomenon except for a handful of cases.
REUTERS: What’s the landscape today for this kind of litigation?
LYTTON: It is still possible to bring a lawsuit against a gun store for irresponsible sales practices that rise to the level of illegality. There’s a handful of theories percolating through, none of which seem to have gotten past the retail dealers. If you could extend that in some ways to manufacturers, you might provide incentives to the industry to police its own distribution chain more effectively.
But I think in the grand scheme of things, litigation at best is only likely to make very small marginal improvements in terms of the quality of sales practices. Keep in mind, the country is awash in weapons: it’s just not hard to obtain a gun and no amount of litigation against the industry is going to make a large dent in that – the best you’re going to get is a marginal improvement in policy.
REUTERS: Can gun violence be considered a public health issue?
LYTTON: On one side, some people suggest there are lower rates of burglary in the U.S. because people who might potentially commit a burglary are nervous about running into an armed homeowner – which may be less true in societies where there is not widespread private firearms ownership. On the other side, there are many public health scholars who have attempted to quantify the amount of social cost of widespread private gun ownership in the form of accidents, suicides and criminal assaults.
Public health researchers and criminologists tend to value different aspects of the problem and in many respects they talk right past each other. They’re using slightly different tools and are asking different questions – it’s part of what accounts for the deadlock over much of this issue. There are a group of people who believe that both social sciences and people in the general public basically start with a cultural framework that favors guns or disfavors guns and look for evidence that fits that, but I don’t know if that’s a fair assessment of everybody who studies guns.
REUTERS: Is litigation against the gun industry similar in any respects to tobacco litigation?
LYTTON: That’s a standard comparison. But the fact of the matter is, in tobacco, what you’re dealing with, by and large, is fraud. You’re not talking about fraud here, you’re talking about negligence. In tobacco, the argument was people didn’t really appreciate the risks they were taking on and the tobacco industry was selling them a product that was increasing the risk of harm to them and misleading them about it.
That’s not what’s going on here: gun manufacturers know like everyone else that they’re selling a weapon that, if misused, has a high level of risk to health and safety. Both courts and Congress decided that even if they’re unreasonable in the way they sell it and even if they sell it in a way that increases risk, it’s not their job to be responsible when the gun is misused. That’s really different.
Timothy D. Lytton is a Distinguished University Professor and Professor of Law at Georgia State University College of Law and a member of the Center for Law, Health & Society. His expertise is in the public policy implications of tort litigation. Lytton is the editor of Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts (2005).