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May 22, 2018

Hillary Is Off Target To Attack Bernie On Guns

Gunrange

Carl Johnson has a juris doctorate from the University of Minnesota Law School and practiced law in Alaska for 10 years

Now that the race is tightening, Hillary Clinton is increasing her attacks on Bernie Sanders regarding his record on gun control. Starting back in October and as recently as this week, she notes how she and President Obama while in the Senate voted against a bill that would grant blanket immunity to gun manufacturers from law suits. In contrast, she claims, Bernie Sanders voted in favor of the bill.

Simply put, Hillary Clinton is not only lying but, as a former attorney, she should know better.

The law in question was the 2005 Protection of Lawful Commerce in Arms Act (PLCAA). The PLCAA generally shields licensed manufacturers, dealers, and sellers of firearms or ammunition, as well as trade associations, from any civil action “resulting from the criminal or unlawful misuse” of a firearm or ammunition, but does provide six exceptions where a civil suit could be maintained. The six exceptions provided for in the law are:

  1. Suits against a federal firearms licensee if the licensee were convicted of selling firearms in connection with drug trafficking.
  2. A law suit brought against a seller for negligent entrustment or negligence per se. Simply put, the suit can be maintained if the seller sold it to someone they had reason to believe would use the weapon to harm others. While the statute does not define “negligence per se,” that term is commonly understood to mean violation of a statute. So if the sale itself violated a statute, then a suit could be maintained regarding the sale.
  3. The manufacturer or seller knowingly violated an underlying state or federal statute, such as those related to the sale and marketing of firearms.
  4. An action for breach of contract or warranty in connection with the purchase of the gun.
  5. An action for death, physical injuries, or property damage resulting directly from a defect in the design or manufacture of the product when used as intended (except when the gun is used in the connection of a crime to shoot others).
  6. Any action by the Attorney General of the United States to enforce the relevant Gun Control Act or National Firearms Act against federal firearms licensees through the administrative or civil proceedings in those statutes.

The key problem with the law is not necessarily how it is written, but how courts have been interpreting it. With the exception of one state case, most courts have been reading the exceptions rather narrowly. Thus, a good “fix” for the law would be to fill in the gaps where the courts have been interpreting the exceptions too strictly.

Now, as a former attorney, Hillary Clinton should be able to read this statute and enjoy the fine summary provided by the Congressional Research Service highlighting these provisions. She would be able to read it, understand it, and know that she is speaking falsely when claiming the law makes gun manufacturers “totally free of liability for their behavior.”

Mrs. Clinton would, as a former attorney, know that one of these exceptions affirms what is available at the common law – the ability to sue a manufacturer for a defective design or construction of a product that causes harm when used as intended. Tort law is often a powerful tool for people to enact changes in behavior among manufacturers. So, if you buy a shotgun and it backfires and harms someone, you can still file a lawsuit against that gun manufacturer. Actually, because of this law, it is clear that manufacturers are totally liable for their behavior – their design, their manufacturer, their sales (if done in violation of applicable laws). But standard products liability only applies to liability for harm caused during the normal use of that product. It would not apply during abnormal use.

Thus, Mrs. Clinton would also know that manufacturers typically enjoy common law immunity from the tortious or criminal acts committed in the use of their products. One such immunity available at common law is the intervening act of a third party. No one can sue Toyota for manslaughter if I use my Prius to commit vehicular homicide. It wasn’t any design or manufacturing defect that caused the injury, but rather my intervening criminal act that did. But they could sue Toyota under the common law if, rather than vehicular homicide, the death was caused because my brakes failed and I struck someone as a result of that failure.

So, not only does this law not provide blanket, absolute immunity to the gun industry for any civil or criminal liability, but the folks at the Brady Campaign have even published a road map on how to successfully sue the gun industry for a variety of causes of action. Comparing their motivations to those of Hillary Clinton, I would certainly trust their word over hers on this subject.

In short, this law does not create any new immunities that did not already exist at common law. It also keeps in place the right previously at common law to sue over defects in design or manufacture that cause injury. And Hillary Clinton should, and does, know better.

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One Response to “Hillary Is Off Target To Attack Bernie On Guns”
  1. Dagian says:

    That is not wise of her or her campaign. I most assuredly do NOT want to see Trump in office but she really has to get things right and that is clearly wrong.

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