August 2012 Archives

Why Can't Shooting Victims Sue Gun Makers?

I will be hosting a radio show on this topic Wednesday Dec 19 at Noon Arizona time. You can see it here "Newtown School Shooting: What can be done?".

It's a simple enough question right? If gun makers are making a killing, literally, by selling guns and ammunition to the public at large, and that profit is to the detriment of society at large, why can't those victims sue gun makers?

The line of reasoning is similar to what happens when a big, bad company makes a ton of money by polluting the environment and expects everyone else to clean up the mess. In the parlance of law and economics, it is called an externality and the "tragedy of the commons".

The reason consumers can't sue a gun maker for the injury and cost it causes to victims is because back in 2005, democrats and republicans, under NRA pressure, passed the Protection of Lawful Commerce in Arms Act or 15 U.S.C. ยงยง 7901-7903. That law specifically bans all lawsuits in state and federal court.

Interestingly enough, Mexico wants to sue American gun makers and distributors because most of the guns used in the narco-trafficking war in Mexico come from the United States. I have always thought it ironic that the United States put so much time, money, and energy in civilizing Iraq, when Mexico, a nation that is orders of magnitude more important to the United States, is falling into anarchy. And, I think, one of the simple ways we could help Mexico is by letting them get justice for the damage that American gun makers and distributors have caused their nation (see "Mexico wants to sue U.S. gun makers").

President Felipe Calderon expressed his frustration to CBS News correspondent Peter Greenberg: "We seized more than 90,000 weapons...I am talking like 50,000 assault weapons, AR-15 machine guns, more than 8,000 grenades and almost 10 million bullets. Amazing figures and according to all those cases, the ones we are able to track, most of these are American weapons."
According to sources, investigators will obtain makes and serial numbers of guns seized by Mexican authorities and trace them to their U.S. distributors and manufacturers.

I think a reference is appropriate to the Ford Motor Company and their reaction to when they figured out it would be cheaper to pay for wrongful death lawsuits than to redesign and fix their deadly Pinto fuel tanks (see "Pinto Madness A Mother Jones Classic: For seven years the Ford Motor Company sold cars in which it knew hundreds of people would needlessly burn to death"). In other words, it was cheaper to kill and pay rather than to save lives. But at least Ford considered the possibility of lawsuits in changing their car design. As it stands now, gun makers have no such incentive. 

Arizona's Medical Marijuana Law

Two years ago, by way of voter referendum, Arizona voters passed a medical marijuana law similar to California and other states that allowed certain individuals with medical conditions to use grow and use marijuana. But just like those other states, while the state may have legalized marijuana grow and use, it is still a violation of federal law.

One would assume, however, that it is up to the federal government whether or not to enforce federal law. That is exactly what the United States Supreme Court decided when they said Arizona could not impose state penalties for violation of federal immigration law under SB 1070 (see "Supreme Court upholds Arizona SB 1070 in part, but does it matter?").

Having stated that though, it does not seem like 12 out 15 Arizona county attorneys agree with that legal principle (see "Medical-marijuana growers await outcome of Arizona lottery for dispensaries" by Yvonne Wingett Sanchez):

Yavapai County Attorney Sheila Polk, who has urged Brewer to halt licensing of dispensaries because marijuana is illegal under federal law... Polk and 12 of the state's 15 county attorneys are fighting the marijuana law and sought a legal opinion from Attorney General Tom Horne as to whether the state law is pre-empted by federal law.
Horne on Monday issued an opinion that the law's provisions "authorizing any cultivating, selling and dispensing of marijuana" are pre-empted but that issuing registry cards to patients and caregivers is not.

My own feeling is that people can disagree about whether medical marijuana is a good idea, but once the voters have spoken directly through a plebiscite, state officials have no business deciding on their own to enforce federal law. My hope is that the 15 county attorneys and Arizona Attorney General Thomas Horne will allow the voice of the people to stand unfettered.