The new lawsuit by the prominent Connecticut personal-injury firm of Koskoff, Koskoff, and Bieder [news coverage: WSJ Law Blog, CNN] seeks to get around the 2005 Protection of Lawful Commerce in Arms Act by latching on to the law’s narrow exception for “negligent entrustment.” That’s not a reasonable reading of the law, and I argue in a new post at Cato at Liberty that courts should toss attempts like these to revive gun control through litigation, all the more so because legislative attempts to overturn PLCAA (as I discussed last year) are rightfully going nowhere.
Some out there seem to think it’s okay to use litigation as a way of lashing out against opponents, whether by way of a winning case or not:
More: “The Sandy Hook Families’ Lawsuit Against Bushmaster Will Fail. Here’s Why.” [Bob Adams, Bearing Arms] And Eugene Volokh’s analysis breaks down the provisions of PLCAA and its interaction with the specifics of Connecticut law, concluding that “unless there is some evidence that the defendant manufacturers and gun sellers in this case violated some specific gun regulations (judgments actually made by legislatures), plaintiffs’ claim will go nowhere — and rightly so, I think.” Yet more: Steve Chapman.
I’ve got a guest column up at the widely read PowerLine blog, my first there, countering misleading criticisms of the Protection of Lawful Commerce in Arms Act in the Washington Post and elsewhere. Rep. Adam Schiff (D-Calif.) is trying to rally efforts to gut or repeal PLCAA in line with the critics’ charges, but his efforts have picked up little traction thus far.
P.S. Thanks to Eugene Volokh for the link and kind words (“I generally quite agree with it, except that the title (‘six myths about the law that bans gun lawsuits’ is imprecise — the law bans many lawsuits against gun manufacturers and dealers, but by no means all,” citing the law’s sec. 4(5)(A).)
Don Surber welcomes Hizzoner’s conversion; Sister Toldjah remains to be convinced (disclaimer; and see quote from me here; our page on firearms litigation and regulation). More: By coincidence, the Bloomberg administration is in court at the moment trying to argue that the Protection of Lawful Commerce in Arms Act doesn’t actually put the kibosh on the city’s gun suits, despite a mountain of evidence that it was intended to do just that (Mark Hamblett, “2nd Circuit Hears Arguments on Letting NYC’s Gun Suit Go to Trial, New York Law Journal, Sept. 24).
The first battle over the constitutionality and scope of the Protection of Lawful Commerce in Arms Act is taking place in Judge Weinstein’s courtroom in City of New York v. Beretta U.S.A. Corp.. The AEI Liability Project has the briefing available in the November 29 entry in its Documents in the News page. Previous coverage: Apr. 13, 2004, Nov. 9, and Nov. 25.
On Wednesday, at a White House ceremony, President Bush signed into law the Protection of Lawful Commerce in Arms Act, setting up a likely battle as gun control advocates attempt to counter motions to dismiss various pending lawsuits (William Freebairn, “Gunmaker seeks suit dismissal”, Springfield (Mass.) Republican, Oct. 29). The Legal Talk Network is airing an audio discussion on the new law among David Kopel of the Independence Institute (more), UCLA lawprof Eugene Volokh and Josh Horwitz, executive director of the Coalition to Stop Gun Violence. I’ve been speaking in favor of a measure like this for years; see, e.g., Apr. 7 and this site’s ongoing coverage of gun litigation more generally, as well as this discussion with Michael Krauss at Point of Law. Jacob Sullum, like Krauss, continues to disagree with me on federalist grounds.
The Wall Street Journal editorial page celebrates the likelihood that the Protection of Lawful Commerce in Arms Act will pass, which would end the gun-control-through-litigation movement.
State legislatures have been rolling back firearm laws because the restrictions were both ineffectual and unpopular. Gun-controllers have responded by avoiding legislatures and going to court, teaming with trial lawyers and big city mayors to file lawsuits blaming gun makers for murder. Companies have been hit with at least 25 major lawsuits, from the likes of Boston, Atlanta, St. Louis, Chicago and Cleveland. A couple of the larger suits (New York and Washington, D.C.) are sitting in front of highly creative judges and could drag on for years.
Which seems to be part of the point. The plaintiffs have asked judges to impose the sort of “remedies” that Congress has refused to impose, such as trigger locks or tougher restrictions on gun sales. Some mayors no doubt also hope for a big payday. But short of that, the gun-control lobby’s goal seems to be keep the suits going long enough to drain profit from the low-margin gun industry.
(Wall Street Journal, Jul. 27 ($)). Democratic Senator John D. Rockefeller IV yesterday became the sixtieth co-sponsor. Still, the Journal may be celebrating prematurely. Last term, the legislation was scuttled by the attachment of clever poison-pill amendments that caused the most fervent guns-rights advocates to withdraw support for the bill, so the fact that the current bill has supermajority support surprisingly doesn’t mean that it’s out of the woods yet. For more, see our ongoing coverage.
Legislation is once again moving through Congress to pre-empt lawsuits which seek to saddle the manufacturers and lawful sellers of guns with the costs of crime. At the request of supporters of H.R. 800, the Protection of Lawful Commerce in Arms Act, I wrote a letter to the House Judiciary Committee explaining why such a bill is warranted now more than ever (longtime readers may recall that I testified on the Hill two years ago in favor of the measure). The new letter is here. (More: Mar. 15 hearings; chairman’s opening statement.)
Also, the Illinois legislature has soundly defeated efforts, backed by Chicago Mayor Daley and pro-gun-litigation groups, to alter state law so as to encourage lawsuits against gun dealers (“More Daley-backed gun bills go down in Senate committee”, AP/KWQC, Mar. 15; “House rejects measure to let victims sue gun dealers”, AP/KWQC, Apr. 6). (Update Apr. 16: backers revive measures, but they are defeated on floor of Ill. Senate). And David Hardy of the extremely promising-looking new blawg Arms and the Law finds that when law reviews present a viewpoint one-sidedly hostile to the right of individual gun ownership, it’s sometimes owing to the careful spadework of a generous outfit called the Joyce Foundation (Apr. 3)(further controversy on last point: here and here).