Liability of Gun Manufacturer - Essay Example

Gun Manufacturer's Liability Introduction Mortality due to firearms slightly decreased from 30,136 to 29,039 deaths representing a .5 percent decrease when comparing statistics for 2003 and 2004. Out of the total firearms mortality figures, 16,907 were due to suicide, 11,920 were attributed to homicide, 730 accounted for unintentional shootings, and the remaining number due to legal intervention and undetermined intent. (Minio, Heron and Smith 4, 19) Deaths caused by firearms cover the intentional and accidental handling of guns. Intentional shootings include homicide and suicide while accidental deaths include deaths caused by firearms malfunction and the unsupervised access of children of guns kept inside the household. It was due to these persistently occurring firearms caused mortality incidents that spurred the application of legal remedies to regulate the purchase and use of firearms. Regulatory statutes in the past 15 years focused on mandating the legal responsibilities of gun manufacturers in an effort to reduce firearms related deaths. According to former Attorney General Robert Kennedy, "It is a responsibility to put away childish things - to make the possession and use of firearms a matter undertaken only by serious people who will use them with the restraint and maturity that their dangerous nature deserves - and demands" (US Department of Justice 2). Deterring firearms deaths require a holistic solution that targets two major sectors for gun regulation, gun owners and gun manufacturers including the channels of distribution between the two sectors. Every regulatory measure have been met with opposition and criticism from one sector or the other due to the public interest issues involved in gun manufacture and ownership. Strict regulation of gun manufacturers led to the enactment of laws providing the responsibilities and corresponding liabilities of gun manufacturers. An analytical discussion of the responsibilities and liabilities of gun manufacturers, the controversies surrounding the selling of firearms, and the present status of legislations and jurisprudence on the regulation of gun manufacturers follows in the succeeding discussion. Responsibilities and Liabilities of Gun Manufacturers The responsibility of gun manufacturers covers both production and sales of firearms to the public. In terms of the responsibilities for firearms production, manufacturers hold the duty to design and assemble their products for safe use so that in case of defects they hold liability for injuries and damages subject to the provisions of tort law. The purpose of liability is to motivate gun manufacturers to consider optimum safety in firearms design. This is important since guns together with tobacco are exempt from safety oversight by the federal government. (Low 43) Under tort law, the failure of gun manufacturers to perform their duty of care in ensuring that the firearms they sell to the public are free from foreseeable design defects opens them to liability for negligence based on claims for damages and physical injuries. Penalties for negligence range from suspension and cancellation of businesses licenses to payment of compensation for damages depending upon the extent of link to these incidents. (Cook and Ludwig 2) Responsibility for product design fell upon gun manufacturers because of the significant number of deaths and injuries caused by faulty firearms designs together with recognition that gun manufacturers hold the best position in identifying potential defects and ensuring that the firearms they sell to the public are free from faulty design. Moreover, gun manufacturers have a certain degree of control over the use of the firearms they produce. They can implement certain control mechanisms over the distribution of their products to the criminal market. (Low 43) In relation to the accountability of gun manufacturers for the distribution and sales of firearms, their statutory responsibility is enshrined in the Brady Handgun Violence Prevention Act 1993 as strengthened by the Youth Gun Crime Enforcement Act 1999. The Brady law imposes upon all federally licensed firearms sellers the duty to ascertain the background of firearms buyers before confirming the sale. Gun manufacturers and sellers should check with law enforcement and only if the person holds no prohibition from owning a gun that the seller concludes the sales transaction. Law enforcement authorities have the concurrent responsibility to investigate the identity and record of a firearms buyer to ascertain whether foreseeable or apparent risks for the unlawful use of the gun are present. (US Department of Justice 5) However, difficulties arose in the implementation of the law because of the complexity and resistance in enforcing a regulatory law in an industry previously free from regulations. The application of the law was also limited since purchasing firearms in tradeshows does not require background checks. This is a significant limitation because more than four thousand tradeshows are held every year in different states where transactions are often unrecorded. The need to strengthen compliance with the responsibility imposed by the Brady law deserved consideration. In 1999, the Youth Gun Crime Enforcement Act came to existence with the objective of controlling the access of criminals and minors of firearms. The new law extended the background check requirement of the Brady law by requiring licensed gun sellers to make background checks in behalf of sellers without license and to provide records of transactions in tradeshows. Apart from this, the Brady law also made mandatory the three-day cooling-of period to prevent heat-of-the-moment crimes and spontaneous suicides. (US Department of Justice 6) Thus, gun manufacturers have the responsibility to make background checks even in tradeshows, record sales transactions, and comply with the three-day cooling off period. Non-compliance with these legal responsibilities involves a fine, or imprisonment, or both. The sales of firearms to minors with knowledge of the circumstances will be met with the penalty of imprisonment for ten years or less. The implementation of the statutory responsibilities of gun manufacturers was met with equally opposing criticisms. In 1997, the Supreme Court decision in Printz v United States rendered unconstitutional, due to its violation of the 10th amendment, the provision compelling state officials to conduct the background checks for firearms purchases in their jurisdiction. This resulted to the conduct of background checks by the states only if they opt to do so. However, this became a moot issue after the introduction of the National Instant Check System so that the waiting period also lost significance. (Cook and Ludwig 5) Despite these set backs the Brady law has survived. Unless covered by any exceptions in state laws, the law still covers background checks, this time through the National Instant Check System, but only sales transactions of federally licensed firearms dealers. The law does not cover sales by unlicensed dealers and private sales. Regulation over these areas depends upon state laws. The Brady law does not cover licensed curios and relics such as gun manufactured 50 years ago and guns valued for their novelty. (Cook and Ludwig 6) Controversies on the Imposition of Gun Manufacturers Liability Statutory regulations imposed upon gun manufacturers have been met with strong criticisms from different interest sectors. Generally, issues over the regulation of gun manufacturers revolve around the curtailment of civil liberties and the duty of care of gun sellers and owners. Ironically, sellers, owners and interest group sometimes disagree and sometimes agree on issues. (Wheeler 23) Perhaps the stark incidents that marked renewed interest towards gun control are the Colorado shootings of schoolchildren by their fellow classmates and the DC shootings. These incidents brought a series of finger pointing with regard to the people or parties accountable for providing the opportunity for children and criminals to have access to firearms. One perspective looks at the responsibility of gun owners in ensuring the safe and legal use of their firearms. This covers the moral responsibility of parents for the safety and well-being of their minor children. However, in terms of their legal accountability, laws providing for penalties for negligent gun owners were considered violative of civil liberties since this amounted to penalizing gun owners whose firearms have been used in crimes to which they took no part. (Daynes and Tatalovich 164) The recognition of moral responsibility but the lack of legal accountability complicates the resolution of firearms violence. Another perspective looks at gun manufacturers and sellers as holding responsibility for the distribution of firearms to irresponsible gun owners as well as to criminals and minors. However, it has been recognized that gun manufacturing industry comprise one of the least regulated businesses. This means that without laws, it is incumbent upon gun manufacturers to take it upon themselves to take responsibility in the distribution of their guns. This is not a reassuring situation because without any economic motivation, gun manufacturers are not likely to accept accountability. (Smith 158) Still another view looks at the legislature as responsible for the enactment of applicable gun control laws. Although there are laws regulating gun ownership and firearms sales, their implementation have been made problematic by the intervening policy issues. However, there is a need to review gun control statutes in relation to the persisting incidents of firearms violence despite the implementation of computerized background checks. This persistence obviously indicates a flaw in gun control laws. (Edel 15) In relation to the curtailment of civil liberties, the right to bear firearms comprises the liberty accorded to citizens to protect themselves. Advocates of gun ownership stress on the responsible use of firearms through informed decisions as well as the disparate position of law-abiding citizens without the right to bear arms when criminals have access to weapons. (Spitzer 17) However, communities also recognize that possession of firearms create security risk such as gun-related crimes and accidents involving owners themselves. The increase in the number of firearms violence supports the need for gun control. It becomes apparent that reconciling the different views on gun control particularly the imposition of responsibility to gun manufacturers involves the evaluation of these different views to determine ways of considering gun control solutions balancing the interests (Stell 49) of gun manufacturers and owners and civil liberties with the recognized need for firearms regulation. Cases Involving Gun Manufacturers Liability Several cases have been raised to the courts seeking the accountability of gun manufacturers for design defects. Dix v Beretta USA Corporation involved the claims made by the parents of a child who was accidentally shot by his friend by advancing the argument that the gun manufacturer has not placed a safety device in the firearm. The jury acquitted the gun manufacturer due to the presence of warnings accompanying the purchased gun. Smith v Bryco Arms involves complaints made by parents on the ground that the company sold guns to the public without any safety device against the accidental firing involving minors. The court of appeals ruled in favor of possibility of accountability of gun manufacturers due to design defects allowing the case to proceed to trial. Grunow v Valor Corporation of Florida involved the case filed against the gun manufacturer due to the death of a teacher after being shot by a student with a handgun. Maxwell v Bryco Arms involves claims of selling defective firearms causing the paralysis of a boy. These two last cases involved a finding of accountability by jury. (Siebel 1-2) In the case of accountability for the distribution of firearms, a significant case is Hamilton v Accu-Tec involving the suit made against several gun manufacturers on the ground that they unreasonable have not controlled the distribution of their firearms so that their firearms have been used in several shooting incidents. The jury rendered judgment against 15 gun manufacturers due to the presentation of evidence by the prosecution of the capability of the gun manufacturers of controlling the distribution of their firearms to the crime sector but failed in their duty of care. (Low 43) The status of these cases in the appellate courts has been complicated by the enactment of the Protection of Lawful Commerce in Arms in 2005. This law was designed to prevent the filing of claims against gun manufacturers based on damages incurred due to the use of firearms by criminals or by others when firearms functioned properly. (Buell) This current law limits the responsibility and accountability of firearms manufacturers. As long as the firearms are without defect, the gun manufacturer has no responsibility over the consequences of its use particularly by other people apart from the owner and by criminals. The issues and different perspectives surrounding gun manufacturers are more likely to affect gun manufacturers in a positive way. The existence of accountability for gun defects would encourage gun manufacturers to comply with their duty of care in ensuring that the guns they distribute to the public are safe for use. The limitation of their liability due to the new law would protect their rights against unscrupulous law suits seeking compensation by solely placing upon gun manufacturers responsibility not only upon the production of safe for use guns but also for the use of their guns by owners and other people who may have acquired possessions of these guns. This imposes responsibility upon gun manufacturers to apply the duty of care in their business and at the same time encourages responsible ownership and legal use of weapons (Vernick et al. 97). Current State of Gun Manufacturers Legal Responsibilities Under tort law, the duty of care of gun manufacturers in ensuring that the guns distributed to the public are safe for use and without defects remain. However, this is subject to the limitation provided by the Protection of Lawful Commerce in Arms 2005 that qualifies liability covering only defects in the firearms regardless of its use. The Brady law still mandates legally licensed firearm dealers to comply with computerized background checks and record sales transactions. Responsibility of unlicensed gun manufacturers and sellers depends upon state and local laws. With these laws, it is hoped that firearms violence would decrease. Bibliography Buell, Chris. House expected to OK legislation shielding gun manufacturers from liability. 20 Oct. 2005. Jurist. 22 Jul. 2006 http://jurist.law.pitt.edu/paperchase/2005/10/house expected-to-ok-legislation.php. Cook, Philip and Jens Ludwig. Litigation as Regulation: The Case of Firearms. Durham, NC:Terry Sanford Institute of Public Policy, 2001. Daynes, Byron and Raymond Talalovich (eds). Moral Controversies in American Politics: Cases in Social Regulatory Policy. New York: M. E. Sharpe, 1998. Edel, Wilbur. Gun Control: Threat to Liberty or Defense against Anarchy. Westport, CT: Praeger Publishers, 1995. Lowy, Jonathan. "Litigating Against Gun Manufacturers". 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