Protecting Makers of Weapons Boosts Democracy, Rights

By David B. Kopel

Aug. 30, 2001, Los Angeles Daily Journal, page 6,and the San Francisco Daily Journal

The California Supreme Court's decision in Merrill v. Navegarholding that gun manufacturers may not be sued for the criminal use of their guns is wonderful news for democracy and the rule of law.

The 5-1 decision of the California high court was a straightforward application of the California statute forbidding lawsuits implicating nondefective guns because the gun was used in a crime. The plaintiffs had attempted to evade the statute by claiming that the lawsuit concerned marketing techniques, not the gun. As the court ruled, this was a distinction without a difference.

Navegar did advertise that the gun's "TEC-KOTE finish was resistant to fingerprints," but people who quote this advertising tend to omit the context, which emphasized the gun's resistance to "sweat rust, petroleum distillates of all types, gun solvents, gun cleaners, and all powder residues," as well as "salt spray corrosion." In any case, the court noted that there was no evidence that the shooter, Gian Luigi Ferri, ever saw a Navegar ad.

When Navegar's lawyer called Navegar to convey the good news about the decision, he found that Navegar was shut down. "Navegar may have gone out of business due to the expense of fighting lawsuits," the Miami Herald reported.

If so, Navegar is merely the latest firearms company to be driven out of business by abusive lawsuits. Companies are being destroyed not by jury verdicts, but by litigation expenses. Despite mythology about the wealth of the gun industry, if you combined every firearms manufacturer in America into a single company, that company still wouldn't make the Fortune 500.

When a lawful, regulated industry is the target of coordinated lawsuits which destroy companies through litigation expense, it is reasonable for the legislature to rein in litigation abuse and pass protective statutes. California's statute (which still allows suits based on genuinely negligent conduct, such as selling a gun to an intoxicated person) was enacted in response to a wave of gun prohibition lawsuits in the 1970s and 1980s. The new wave of anti-gun lawsuits, commencing in the late 1990s, has led over half the states in this country to follow California's lead and enact remedial legislation.

The California statute – and the decision enforcing that statute – simply affirmed that California's decisions about gun policy belong to the state legislature, and not to a few attorneys with the power to destroy companies through meritless suits.

Legislatures have not been shy about exercising their prerogative to enact gun laws. Handguns are the most highly regulated consumer product in the United States. What other consumer product requires permission from the California Department of Justice for every purchase, and requires that buyers get put on a permanent government list for every purchase, pass a government-regulated safety class and undergo a "waiting period" of over two weeks to pick up the product?

Legislatures regularly enact statutes restricting liability of particular industries. The Colorado legislature limited ski area liability after a reckless skier won a multi-million dollar verdict, and ski areas were at risk of closing down. Also, Congress restricted shareholder class action suits to protect the high-tech industry from lawsuits. All over the country, teachers, health care workers and countless others are given various kinds of tort immunity, provided they comply with all laws, which Navegar did.

When constitutional rights are involved, courts have long recognized that tort suits can chill the exercise of rights. In New York Times v. Sullivan, the U.S. Supreme Court ruled that the press, being a First Amendment industry, is entitled to immunity in certain libel cases. The case arose out of an advertisement which was false and seriously harmed Sullivan's reputation.

Yet the court ruled that a limit was necessary to prevent First Amendment rights from being chilled.

Lawsuits filed over the last several years have chilled the exercise of Second Amendment rights. Orchestrated by gun prohibition organizations, the suits have driven companies out of business and raised the cost of firearms, thus impeding self-defense by poor people.

Of course, the California Supreme Court, with the exception of Justice Janice R. Brown, couldn't care less about Second Amendment rights. The fact that a 5-1 majority of the California court, like the unanimous seven judges of the (not exactly pro-gun) New York Court of Appeals, ruled against the anti-gun lawsuits shows that the suits were recognized not just as a threat to gun ownership, but to the essence of law-making in a democratic society.

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