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Liability for Injuries and Deaths involving Firearms Arises in Several Ways

Is it true that firearm manufacturers can’t be sued for negligence?

iStock-894201964_firearms_lawsuits.jpg

No. Contrary to what many believe, firearms manufacturers, and even firearm distributors and gun store retailers, can be sued for firearm injuries and firearm misuse as a result of negligence.

It is true, however, that gun companies can’t be sued when one of the firearms they made or sold is used in a crime AND the gun company wasn’t negligent.

There are two important laws to understand when it comes to liability for firearm injuries or deaths.

First, the Protection of Lawful Commerce in Arms Act (PLCAA) insulates firearm companies from liability from the misuse of the firearms they make or sell as long as the companies don’t encourage the misuse nor are they negligent in their business.

Second, the firearms industry is outside the control of the Consumer Products Safety Commission (CPSC) because they are one of the few industries that pay a federal excise tax on their products. This means that a recall of a product can not be forced for public safety the concerns – the firearms industry must regulate itself and it is in each manufacturer’s discretion whether to recall a firearm.

This leaves two big areas where gun companies can be sued as a result of someone being injured or killed with a firearm:

(1) A firearm is used in a crime and the gun company (firearm manufacturer, distributor, and/or retailer) is partly to blame because of their negligence, or

(2) Someone is injured or killed due to a defective gun or unsafe firearm design and the manufacturer either failed to identify the problem or failed to remedy it.

Let’s explore each of these scenarios to learn when a firearm company may be partly to blame for an injury involving a firearm suffered by yourself or a loved one.

*note – It is often said, “guns don’t kill people, people kill people.” This is true. A firearm is an inanimate object, a tool. People are injured or killed either by a person using the firearm or by a company who negligently designed/sold a firearm. In both of these cases, someone is at fault.

Firearm Use As a Result of Gun Company Negligence

There are a few situations where a company may carry part of the blame for a firearm being used by a criminal and where a firearm injury lawyer might be able to help.

These are (from least likely to most likely):

  • Firearm manufacturer design/intent
  • Gun advertisements/marketing
  • Sale of firearms to criminals/Illegal transfers

Firearm Design/Intent

One potential scenario is where a company makes a firearm for the sole purpose, or largely intended only for, criminal use. This is the least likely option to find a firearm manufacturer liable for an injury or death. This is because any feature that can be identified as designed for “criminal use” can usually also be explained as a legitimate feature.

Gun Marketing

Another scenario where a gun company may be liable is in advertisements/marketing. Unlike the first option, this can apply to the entire marketplace from manufacturers to retailers (gun stores). If a company is so overt in their marketing as to encourage the misuse of their firearms, they can be liable. (This doesn’t just include criminal use)

For example, encouraging criminal use of a firearm is clearly a problem. However, if an advertisement shows unsafe firearm handling (e.g. pointing a firearm at an innocent bystander, leaving a firearm unattended and available for access by a child, etc.) that is emulated by someone and that results in an injury, then the company may be partly to blame.

The families of the victims of the Newtown, CT school shooting sued Bushmaster Firearms for marketing the rifle used in such a way as to encourage aggressive use of the firearm. The families were unsuccessful in their suit [may need updated as appeals pending].

Sales/Transfers

The third, and most common scenario, is where a company negligently allows a firearm to get into a criminal’s hands. This is an exemption to the protections of PLCAA and called “negligent entrustment.”

In order to be engaged in the business of making or selling firearms, a company must be a Federal Firearms Licensee (FFL). As an FFL, they have certain obligations under federal law.

These obligations include only transferring possession of a firearm to another FFL or to a non-FFL customer via a background check and ensuring that the customer is the actual purchaser of the firearm.

*Note – In some states, like Arizona, an FFL may transfer a firearm without a background check as long as the appropriate forms are filled out by the customer and the customer presents a valid concealed carry permit (these are becoming rare in Arizona).

If an FFL allows an unauthorized person access to a firearm, then they can be liable for the misuse of that firearm. Examples include inadequate security measures, improper inventory/shipping controls, and giving/selling a firearm outside the legally required process.

The FFL can also be liable if they allow a criminal or “prohibited person” (e.g. felons, dishonorably discharged veterans, subjects of restraining orders from an intimate partner, etc.) to have a firearm by “selling” the firearm to someone who’s allowed to have the firearm who is acquiring the firearm the person who can’t. This is a called a “straw purchase” and FFLs have a significant responsibility to prevent them.

A famous scenario of this liability is the Badger Guns case [citation needed] where an employee was sentenced to jail for failing to recognize and prevent a straw purchase that resulted in the criminal use of the firearm.

Unsafe Firearm Design or Manufacturing

As introduced above, the firearms industry largely regulates itself when it comes to product safety.

Firearm and ammunition manufacturers have an obligation to follow industry “best-practices” in manufacturing and to ensure the safety of their products.

The trade association for the firearms industry is part of the Sporting Arms Ammunition Manufacturer’s Institute (SAAMI) which publishes safe pressure limits for certain firearm and cartridge combinations. There is no requirement that a manufacturer make products to “SAAMI-spec” but failing to do so may show that they knowingly manufactured a product outside of safe specifications.

Examples of this issue usually involve firearms that literally blow-apart/blow-up sometimes injuring or killing the shooter or those nearby.

Other issues of unsafe design can cause firearms to fire when they are not supposed to (e.g. when the firearm is dropped, the safety is removed, etc.).

For example, a class action lawsuit against Remington alleged that the trigger design of the Remington 700 rifle was unsafe because it fired when it was taken off of “safe” and caused multiple injuries or deaths. As a result, Remington recalled all of the rifles and retrofitted them with upgraded trigger designs.

Liability of Remington was difficult to prove because an injury of another person in these scenarios was only possible as a result of unsafe gun handling (pointing a firearm at an innocent bystander) and the triggers were either modified or not maintained properly.

In another situation, the Sig Sauer P320 handgun was found to fire when dropped. The manufacturer offered a “voluntary upgrade” to a newer design but continues to insist the that original design is perfectly safe.

Situations like this are more dangerous because the direction of the firearm can not be controlled when it is dropped and current owners of this firearm have been told that it is perfectly safe and no recall was issued.

Even with safe designs, faulty manufacturing can also sometimes cause unsafe firearms that result in injury or death.

It is extremely important that manufacturers design and manufacture safe firearms. It is also important that when they are made aware of a potential defect, they act swiftly and completely to remedy the situation to protect against the injury or loss of life of innocent persons.

If you feel that you or someone you love was injured as a result of the negligence involving a firearm or a defective firearm, you should consider contacting an attorney to be sure your rights are protected. Please feel free to contact our firm for a free consultation concerning your potential case. You can email us or call 602-910-6779.

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