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Clayton Cramer on gun mfr liability bill
Clayton Cramer has a take on the present draft of the gun manufacturer's liability bill. I'd tend to read it differently. The bill (if link doesn't work, go here and search for HR 800) essentially prohibits civil suits against dealers and manufacturers, with several exceptions. A person can file the following suits:
(i) an action brought against a transfer or convicted of an offense under section 924(h) of title 18, United States Code, or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted;
(ii) an action brought against a seller for negligent entrustment or negligence per se;
(iii) an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, if the violation was a proximate cause of the harm for which relief is sought, including-- (knowingly making false record, etc.)
Now, (i) covers conviction for violating 18 USC 924(h), which forbids knowing transfer of a firearm to a person who intends to use it in a violent crime or a drug transaction.
(ii) covers negligent entrustment (separately defined as where the seller knew or should have known that the buyer would use the gun in a hazardous way) or negligence per se. The latter is the idea that violating certain types of laws proves negligence automatically. It mostly arose out of traffic laws -- if a person runs a red light or speeds, that itself proves civil negligence. (I'm not sure, but suspect that DUI may not be negligence per se -- after all, a person may be intoxicated but be involved in an accident the other person caused, whereas if one person had the red light and the other the green and an accident occurs, the one who had the red light is clearly responsible for it). In the gun context, as I remember, negligence per se is pretty much found only where a gun was knowingly sold to a prohibited possessor.
(iii) covers knowing violation of federal or state law, if the violation proximately caused the harm. Proximate cause is an ambiguous concept that there must be more than simple "but for" cause, there has to be some degree of direct cause. A lot of gun liability cases have failed on that ground. Seller sells gun, user commits crime with it. Yes, *maybe* if he hadn't got the gun he wouldn't have committed the crime, but the user's decision to commit crime usually makes the causation insufficiently direct, the decision is an "intervening cause."
As I see it, the exceptions are pretty broad. Enough so that all that is ruled out is a suit where no criminal law was broken, and the seller had no reason to believe that the buy would misuse the gun. Given the breadth of regulations in this area, that's pretty narrow. But it would bar suits for, oh, "you make guns, one was used in crime, so I sue," or "the dealer made a completely legal sale, but we feel it was negligent, even tho there was no way to know the purchaser would commit a crime," and of course the wierd nuisance theory suits.
(there are also exemptions for warranty actions, and product liability suits other than ones based on the purchaser's criminal use).
I suspect the bill was redrafted in a hurry, because it has at least one big quirk. The definitions start out by defining "engaged in the business" of mfr, dealer, etc., taking the definitions straight from the GCA. But then the only time that term is used is in the definitions of mfr, dealer, etc. where it says these are folks engaged in the business and licensed to do so. A better approach would have been to leave out all reference to engaged in the business and simply say an mfr is one licensed to be an mfr, etc.. Not only does adding in the term add useless wording, it also leaves at least a tiny loophole, an argument that this fellow may have a dealer's license but he didn't do enough business to be engaged in the business, and hence is not protected.
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