Cornell undergraduates and various members of the community joined Cornell Law School students last night to listen to a panel discussion entitled, “Should Gun Manufacturers be Liable For Crimes Committed With Guns?” The featured speaker was Richard C. Wesley ’74, a judge for the U.S. Court of Appeals for the Second Circuit. Judge Wesley wrote the opinion for Hamilton v. Beretta, which determined the answer to the above question.
Cornell Law School Professors Michael Heise, James Henderson and Brad Wendel joined Wesley for the hour–long panel discussion, which opened with Wesley explaining the background of the case and how he came to his decision.
Hamilton v. Beretta began in 1995, when relatives of people killed by handguns sued 49 handgun manufacturers in Federal Court with the desire to place liability on the handgun manufacturers. In all instances, the weapons were unknown and in some cases the shooter was unknown as well.
In 2001 it was the responsibility of the Second Circuit Court to answer the following two questions:
“(1) Whether the defendants owed plaintiffs a duty to exercise reasonable care in the marketing and distribution of the handguns they manufacture
“(2) Whether the liability in this case may be apportioned on a market share basis, and if so, how?”
Wesley’s decision was that manufacturers were not liable. Wesley then laid out his reasoning for the opinion that he wrote by first asking several questions such as, “Where does the liability lie? – Are you really striking at the heart of the illegal sale of guns? – If you impose this – will this cause people to change their ways or leave the market? – Should it be a matter of national policy or tort policy set in New York?”
He presented several potential problems with answering ‘yes’ to the last two questions. First of all, he said, there is “potentially a huge class of plaintiffs.”
“We could be looking at hundreds of thousands [of people] if the court had decided otherwise,” Henderson said. He then made the argument that if the answers to the questions had been ‘yes’, then it would set the precedent for virtually anyone to blame something or other for their own behavior.
Henderson gave the example of alcohol manufacturers and junk food manufacturers.
“How could a court rationally say ‘yes’ to this and ‘no’ to alcohol – that litigation would be massive in scale.”
“I don’t see in a system of common law where reason and analogy works, that we would stop at handguns,” Henderson said.
In terms of liability, Wesley explained that it can only be imposed when “there is actual control of the individual,” like a servant–master relationship, or when there is a “reasonable and expected responsibility” of a third party, such as a parent and a child. According to Wesley, the relationship in this case does not fit either criterion.
Though it can be argued that there is “foreseeable harm,” demonstrated by the 3,700 deaths per year by handguns in the U.S. and the 14,000 handgun injuries per year, Wesley countered this by saying: “In 47 percent [of these cases] the identity of the weapon is never known.” He added that “there is no proof within record to show that if handgun manufacturers altered marketing, this would change.”
Illegal guns often enter the market through “straw purchasers.” In other words, people who will pass background checks show up in places like South Carolina, buy as many guns as they can and then return to New York City to sell guns to those who may not have passed background checks.
Though illegal guns are on the market, there is “no evidence of any statistical relationship between any handgun sales and handguns used in crime,” Wesley said.
Additionally, Wesley argued, “sale and distribution of handguns is really a national policy issue,” and it is not up to the court to decide such matters.
The common law process is really only an “incremental process” and it does not cover “broad-based policy considerations.” He then cited the recent passing of a law on Oct. 20 in the House of Representatives that relinquishes responsibility of manufacturers for the results of handgun sales.
“Using tort law to make macro resource allocation is very untraditional,” Henderson said. He described a tort as “the idea that someone tries to screw me and I have a claim against that person,” which got a laugh from the audience.
Henderson explained the dangers of using the judicial system to get around democratic politics.
“When activists bring macro–social problems into the courts – there is a world of unintended consequences,” Henderson said.
Heise also agreed that the legislature is the correct route to solve this problem, though he said one could argue that the National Rifle Association distorted the democratic process, but that is the “problem with throwing it back to the legislative branch.”
Finally, Wesley considered the second question dealing with market share, which is the notion that each manufacturer should be held liable for its share of the market. So the bigger share of the market that a certain manufacturer possesses, the more responsibility the manufacturer has for the plaintiff’s injury. However, Wesley argued that each manufacturer does not market in the same way and there is no way to determine this responsibility, especially when many of the weapons go unidentified.
In addition, even if the plaintiffs were to win, “the victims often get far less than the lawyers,” Henderson said.
Heise concurred saying that the common law rulings do not result in “a terribly efficacious insurance industry.”
Wesley did say that this decision could change if there is a way of determining the identity of the gun manufacturers.
Though both Heise and Henderson agreed with Wesley’s opinion, Wendel opposed it, saying in his opening that hopefully “we can say [something] for the plaintiffs.”
“Everyone should be held to a standard of reasonable care,” Wendel said. He argued that the manufacturer is “undoubtedly” in a better position to control risk.
Some of these manufacturers are “scum of the earth,” Wendel said, citing one manufacturer who responded happily to a school shooting because shootings normally push up gun sales.
“Blanket immunity lets off the bad apples as well as reputable manufacturers,” Wendel said.
Wendel placed the blame on manufacturers, saying that a good solution would be asking the manufacturers to take certain precautions.
“It would not be too much to impose a small additional burden on them,” he said.
Wendel also said that there may be a way to derive the direct risk any negligent company has created.
Wesley responded to Wendel by saying, “There will be a time when causation will be direct” and perhaps the opinion will change.
In conclusion, Wendel emphasized legislature’s effectiveness in increasing the strictness of gun control through the Brady Laws.
“How do we measure the success of a legislative endeavor? The murder rate is at a 30-year low,” Wendel concluded.
Archived article by Rachel Nayman
Sun Staff Writer