Beverly Mann asked a good question on the Angry Bear web log.
Hat tip to Mike the Mad Biologist
Tags: Gun Manufacturers, HIllary Clinton
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Phil Ebersole's Blog 
October 29, 2015 at 8:10 am |
A bartender can be held liable for selling liquor to an inebriated customer who later kills someone on the road. The RIAA has successfully sued many filesharing service — napster and the like — that argued that they shouldn’t be held responsible for their customers’ copyright infringement. I don’t think Mann has a good point at all.
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October 29, 2015 at 9:24 am |
Yes, but the bartender, not the distiller, is held responsible.
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October 29, 2015 at 8:44 am |
More information: http://smartgunlaws.org/gun-industry-immunity-policy-summary/
Among other things, note Adames v. Sheehan (gun manufacturer cannot be held liable for failing to incorporate “smart-gun” safety features in a gun used by a child to kill another child). Most manufacturers can be held liable for failing to incorporate new safety technologies of reasonable cost. Arguably, the law that Sanders supported will slow the adoption of technologies that prevent the use of guns except by their legitimate owners.
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October 29, 2015 at 9:28 am |
Product safety legislation is one thing. How people choose to use a product is another.
Ford Motor Co. was rightly held responsible for the exploding gas tanks in the Ford Escort years ago. I don’t think Ford or any other auto manufacturer was ever held responsible for the use of automobiles as getaway cars in bank robberies.
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October 29, 2015 at 9:31 am |
I don’t think your response is very telling. Consider a brew pub, which both manufactures a product and sells it to customers who may commit crimes. Manufacturers, including gun manufacturers, also have to distribute their products. If you see the link I posted in my second comment, you’ll see that many of the suits precluded by the law that Sanders supported concerned claims of negligent distribution.
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October 29, 2015 at 10:05 am |
The lawsuits pre-empted by the PLCAA are pre-empted not on their merits, but on the basis that jurisdiction is shifted from state courts to federal courts.
The exceptions carved out in the PLCAA allow for reasonable lawsuits involving gun safety and sales to known criminals or people with obvious criminal intent.
If you want to argue on federalist grounds that jurisdiction should have remained in the state courts, I won’t argue.
That’s different from claiming that manufacturers are routinely held responsible for criminal use of their products, and that Bernie Sanders supported legislation to make gun manufacturers an exception.
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October 29, 2015 at 10:38 am
The PLCAA makes changes in substantive law, not just jurisdiction. Look at the cases in which courts said that NYS couldn’t enforce its nuisance laws against gun manufacturers. Also, what makes you think that the PLCAA always lodges jurisdiction in federal court? Look at the Adames case, in which Illinois courts applied the PLCAA.
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October 29, 2015 at 10:59 am |
Looking at the PLAA again, I see that the barkeep-type situation might fall within paragraph 2, dealing with negligent entrustment. Nonetheless, I think its worth making the point that the gun industry in not alone in being held liable for the way its products are distributed.
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October 29, 2015 at 10:06 am |
The point of my post, and of the article to which I linked, was not the merit, or lack of merit, of the PLCAA, but Hillary Clinton’s mis-statement of fact.
It is simply not true that manufacturers are routinely held responsible for criminal use of their products, and that gun manufacturers are an exception. She knew that, or should have known.
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October 29, 2015 at 10:48 am |
I’m not sure whether this kind of liability is “routinely” used against manufacturers and distributors, but the challenge you posed was to name just one other instance in which this takes place. Besides guns pose a danger that is anything but routine.
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October 29, 2015 at 10:25 am |
The Adames case dealt with general tort law liability, not a specific piece of safety legislation.
Imagine the bank robbers make a sudden lane change to elude police. Another driver plows into their rear end, causing an explosion that injures both the bank robbers and the innocent driver. If Ford’s negligence caused the innocent driver’s injuries to be worse than they would otherwise have been, then the driver can sue Ford under tort law. (In fact, the bank robbers themselves might be able to do so in some states.)
But not if the Sanders-supported law were applied to the auto industry. Under paragraph 5, the robbers’ action (reckless driving) would be considered the “sole proximate cause” of the innocent driver’s injuries, despite the fact that Ford made them much worse. Ford would be completely off the hook.
You may protest that Ford would not be held liable for the bank robbery itself. That doesn’t matter. The Sanders-supported law insulates gun manufacturers not only from being charged with murder (unlikely in any event), but also from the civil, tort law consequences of selling guns to murderers (or selling guns in so negligent a manner that they are likely to fall in the hands of murderers).
It’s simply not the case that a manufacturer or distributor can’t be held responsible (under civil tort law) for the consequences of criminal acts that they did not commit themselves. See, for instance:
http://www.nolo.com/legal-encyclopedia/employer-liability-employees-bad-acts-29638.html (noting several cases in which employers can be held responsible for damages that result when employees commit criminal acts).
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October 29, 2015 at 11:01 am |
Should have left out that last sentence, which deals with employees, not purchasers.
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October 29, 2015 at 11:16 am |
Another correction: I should have said that the Sanders-supported law would insulate Ford from making their products safe at reasonable cost (I shouldn’t have conflated design flaw liability and negligent distribution).
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October 30, 2015 at 5:50 am |
Memo to self: Don’t feed the trolls.
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October 30, 2015 at 8:44 pm |
Oh good grief. I’m a troll because I disagree with you?
I’ll admit that I’m part of the reason that this discussion went off the rails. My patchwork argument is no doubt less clear than it might be.
But, now that you’ve broken the rudeness barrier, I’ll add that a bigger problem is that you don’t seem to have enough knowledge of this area of law to understand my objections or to respond to them in an intelligent way.
Am I qualified to make that judgment? Well, I do have a JD from a well-regarded law school and seven years experience as a reporter for the National Law Journal and other publications at American Lawyer Media. During my stint as a reporter, I wrote frequently on issues of tort law and federal-state pre-emption. I’m not an expert, but my intuitions aren’t entirely uninformed.
Moreover, there are commentators with better credentials than mine who have raised similar objections to the PLCAA (see, for instance, the paragraph beginning “The PLCAA outlaws many different kinds of lawsuits” in this article: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2040374/).
I don’t expect you to bow to my authority, such as it is. I would be perfectly happy to try to clarify my arguments and to supply additional evidence in support of them. Until now, I was actually looking forward to engaging in a dialogue with you, since I’ve admired your blog for a long time. But not if I can expect this kind of asinine response.
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November 2, 2015 at 6:55 am |
I apologize to Gary Young for calling him a troll. He was not being disruptive and I now realize, as a result of a little reflection and a little Internet searching, that his comments are not off-topic.
My comment reflected my irritation as myself for starting a back-and-forth argument I thought irrelevant to my original post.
It is true that no manufacturer is held criminally liable for the criminal use of their legal products, provided they did not knowingly or negligently sell their products to criminals or likely criminals.
But it also is true that gun manufacturers have a special privilege in that this is spelled out in positive law, the Protection of Lawful Commerce in Arms Act, which Bernie Sanders supported. This is relevant to criticism of Hillary Clinton’s rhetoric about gun control.
I think Gary Young’s examples of the consequences of the PLCAA are far-fetched, but that is a different issue.
I made a new post on this topic, in order to give my second thoughts equal prominence to my first thoughts. I would be grateful if comments on this topic migrated to the new post.
https://philebersole.wordpress.com/2015/11/02/second-thoughts-on-hillary-clinton-and-guns/
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