The last two weeks, coincident with warming weather and incrementally looser quarantine restrictions, saw two more mass shootings, in the Atlanta, Georgia, area and in Boulder, Colorado. Is it true that only a global pandemic forcing people indoors was enough to significantly slow the pace of that quintessentially American phenomenon: mass shootings?
As communities, families, government and the media react to these shootings, forensically analyzing the conditions that led to them, there are numerous variables: While the perpetrators are overwhelmingly men — often young men, and usually white — their motives, backgrounds, social and economic class tend to be variable. White supremacy and misogyny (or both, as was the case in the Georgia massacre) are often at the root of the shootings. Others’ roots have remained mysterious. The instrument of death, however, is constant: firearms. There is another constant, too: The manufacturers of these tools for committing massacres are legally shielded from liability for their overproduction and dangerous marketing strategies. Until that changes, massacres of these types will likely continue.
After the Atlanta-area killings, it was widely reported that the shooter was able to buy a gun and begin his attacks on the same day. Gun control advocates typically argue that we must center our policy responses on the consumers of weapons, to make acquiring and owning a gun more difficult — often including criminal penalties for gun ownership in various scenarios.
As we’ve argued in this space before, this approach suffers from multiple risks and weaknesses. First, gun control laws that require enforcement from local police departments and federal agencies are simply more likely to disproportionately target working–class people of color, who face disproportionate arrest and sentencing. Second, imposing consumer-focused measures without imposing steep costs on the gun industry is like wading into a flood with a mop and ignoring the open spigot. Without a strategy that attacks the forces of capital benefitting from the flood of guns, ever-increased policing will just drag more and more people into the carceral system.
As it stands, the pain of mass shootings is borne by victims, their families and communities, and the public. Meanwhile, the gun industry is consistently ramping up production—there are currently about 400 million guns in circulation in the United States, a country of 330 million. Getting guns into circulation quickly is an acknowledged part of the strategy of undercutting regulatory efforts. Consider this statement from the CEO of Palmetto State Armory, a gunmaker and retailer:
I hope in thirty years people look back and say…we tried to pass gun control…but it wasn’t very effective…because this pesky company made 20 million ARs…they got them into circulation…and now the regulations we put into effect have little effect because there’s so much of it out there already.
There needs to be a direct connection between the social and public health impact of gun proliferation and the costs imposed on the industry. Put another way, regulations like stricter design standards and safety features are sensible and could be effective, but they will ultimately become another line in the cost-of-production calculation of manufacturers. Meanwhile, the public absorbs billions in public health and social decay impacts that the manufacturers are never called to account for. Regulations disconnected from the actual costs on the public will end up as legislative tug-of-wars so long as there is an immensely profitable industry untouched by the cost of their conduct.
The most plain way to impose a cost on the gun manufacturing industry is repealing the Protection of Lawful Commerce in Arms Act (PLCAA) and subjecting the industry to public nuisance and public health theories of liability. These strategies would begin to compel the industry to bear actual, constant and proportional costs of its reckless overproduction and marketing of arms.
To better understand what this means in practice, it’s important to understand the unique challenge the firearms industry poses. Unlike most products, guns are intended to maim and kill. So there is little room for a “product liability” theory, under which a consumer sues the manufacturer of a product for a defect in the product. A gun that maims or kills has most likely operated perfectly well, not defectively. So the public is left with two primary paths: claims of negligence (in the form of negligent marketing) and public nuisance claims.
In negligent marketing claims, plaintiffs could allege that manufacturers knowingly oversell handguns, particularly into markets with more lax gun regulations, knowing that the initial and wholesale purchasers are essentially buying for sale into second-hand markets, including gun shows and private sales. The proliferation of guns drives the prices down and increases the ease with which any given person can secure a firearm fairly easily. Two cases from the early 2000s, prior to the passage of the PLCAA, tested these theories: In Hamilton v. Beretta U.S.A. Corp. and Merrill v. Navegar, negligent marketing and overpromotion theories could not meet the standards of common law negligence or the public policy in favor of lawful gun ownership. Positive legislation from the federal government needs to make these types of cases easier to bring and likelier to succeed.
A public nuisance theory has even greater potential. Rooted in the common law, the concept of public nuisance is that the public has certain “general rights” that should not be violated by private actors, the most obvious examples being factories that create a noise nuisance or polluters that contaminate drinking water.
In the context of gun crime, the theory would be that the public safety — our right to be free from the actual occurrence or constant risk of bodily harm from guns — has been recklessly or intentionally harmed by gun manufacturers. Particularly since the PLCAA, these theories have not fared well in the courts, because that law allowed for only narrow exceptions where manufacturers could be held liable — the so-called “predicate exception.” Judges have tended to find that the right in question — freedom from gun-related maiming and killing — is not sufficiently harmed by the production of guns in the way that poisoning drinking water would threaten the public generally, because the harm is not suffered by the public in general but by individuals in particular.
But there is hope. Both a change in judicial understanding of nuisance and positive legislation from states and municipalities could help speed things along. In the last handful of years, suits brought against pharmaceutical companies involved in the production of opioids have rested on a public nuisance theory and seen success in the form of large settlements, as companies scramble to avoid “bellwether” verdicts that create templates for more lawsuits.
The opioid industry has been one of the parties complicit in hundreds of thousands of overdose deaths in the last 20 years, as well as untold millions of destroyed lives and the dilapidation of families and communities. But there’s a critical difference: Opioids at least do have an important functional use — easing serious pain — and their manufacturers produce myriad other products that are critical to public health. The firearms industry has no comparable social value, and therefore, legislators should feel freer to legislate for broader grounds and steeper penalties for liability.
The proliferation of guns has imposed immense financial costs even beyond the generally circulated figure of $170 billion annually. Consider, for example, the cost of the purchase, maintenance and replacement of tens of thousands of metal detectors in public schools and other public buildings, added security for those same facilities, the knock-on cost of over-burdened trauma centers in major urban centers, etc. When you consider that the only arguable public utility of gun ownership is to protect against other people with guns, the industry can and should be wholly liable for these costs borne by the public.
Yet currently, the industry has no material negative feedback from mass shootings. The increase in gun production over a period of increased mass shootings demonstrates this fairly unequivocally. The industry needs to feel the same panic and dread the public does after a massacre. And that is only likely to happen when it can expect to be compelled into the courthouse and made to pay for its reckless conduct. Under the current Second Amendment regime, imposing steep costs for the proliferation of guns is the only apparently evident means of stanching their flow.
Stopping the overproduction of guns serves multiple purposes: by starting to dry up the supply, it reduces the prevalence of gun crimes, which in turn could help stem the demand for more guns (since guns are generally purchased for self-defense). In turn, that begins the process of drying up the immense profits of the industry. Imposing liability on the gun industry through state and private litigation commencing in myriad jurisdictions all at once can quickly sap the industry’s war chests, tie up its resources and send insurers fleeing.
All of these steps could, in turn, give policy makers and communities breathing space to experiment with deeply needed public health approaches to addressing gun violence, rather than merely creating more and more intrusive policing strategies that will inevitably fall hardest on working–class communities of color.
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