On Tuesday, The Washington Post and The Trace published the result of an investigation that found more than 100 people who claim that their SIG Sauer P320 handgun discharged without them pulling the trigger. At least 80 people have reported being wounded by the accidental discharge of this popular handgun, including at least 33 law enforcement officers. (In a written response, SIG Sauer denied that the P320 can fire without the trigger being pulled or that there is a defect.)
At least 80 people have reported being wounded by the accidental discharge of this popular handgun, including at least 33 law enforcement officers.
According to the gun-maker's response: “(1) unintentional discharges are not uncommon amongst both law enforcement and civilians, (2) improper or unsafe handling is one of the most common causes of unintentional discharges, and (3) unintentional discharges occur with several types of firearms and are not unique to the P320.”
Still, at least 70 people have filed lawsuits against SIG Sauer, and Tuesday's report notes that gun “manufacturers have opted to ignore long-standing problems” with such design issues unless “facing pressure from lawsuits.”
Significantly, the report from the Post and The Trace reminds us that “Firearms are one of the few products that are exempt from federal consumer product safety regulations. No regulatory body has the power to investigate alleged defects or impose a mandatory recall of guns.”
Yes, gun manufacturers should address design flaws before they’re sued, and, yes, we need an agency that can issue recalls on defective guns. But we also need to repeal a 2005 law that broadly gives gun-makers immunity and shields them from most civil lawsuits.
In fact, this is something President Joe Biden has repeatedly said he wants to see changed. “Most people don’t realize: The only industry in America, billion-dollar industry, that can’t be sued, exempt from being sued, are gun manufacturers,” he said in April 2021. “If I get one thing on my list, Lord came down and said, ‘Joe, you get one of these,’ give me that one,” Biden said of his hoped-for repeal of the Protection of Lawful Commerce in Arms Act (PLCAA). “Because I tell you what, there would be a come-to-the-Lord moment these folks would have, real quickly.”
Biden made those remarks two years ago on the day a former NFL player armed with two handguns killed five people in South Carolina. The Washington Post story about lawsuits regarding the SIG Sauer P320 handgun was published the day after a former employee armed with an AR-15-style rifle killed five people at a bank in Louisville.
Civil lawsuits against manufacturers in other industries have incentivized those companies to make their products safer. Think of how lawsuits against auto manufacturers have prompted them to update their products. Think of how they publicize recalls and prompt their customers to bring in their cars and get defects such as faulty airbags and seat belts repaired. There’s nothing analogous for gunmakers.
What prompted this unique protection for the makers of guns? Dozens of lawsuits by individuals and cities, including New York, that sought to hold gun manufacturers and dealers liable when their weapons were used to injure and kill people. In jumped the National Rifle Association, which made legislation protecting gun-makers its top priority and had a Republican President, George W. Bush, and a Republican-controlled Congress to make it become law. When Bush signed the law, the NRA called it “the most significant piece of pro-gun legislation in 20 years.“
Civil lawsuits against manufacturers in other industries have incentivized those companies to make their products safer.
It’s hard to argue against that. It’s also hard to argue that repealing the PLCAA wouldn’t be equally significant. To be clear, the law restricting lawsuits does provide a few exceptions, including when injuries or death are caused by a defect in the design or manufacture of the product. That’s why lawsuits can be filed against SIG Sauer related to the P320 unintentionally firing. But there can’t be federal lawsuits demanding, say, that gunmakers make their nondefective weapons safer.
You might ask how do you make a gun safer? Well, for starters, there’s smart gun technology that won’t allow a gun to fire unless a fingerprint or palmprint of the authorized user is detected. Everytown for Gun Safety estimates that in 2021 there were 395 unintentional shootings by children, resulting in 166 deaths and 248 injuries. Such smart technology could’ve potentially prevented those shootings.
According to a 2020 analysis from the Center for American Progress, 1.8 million guns were stolen from individuals across the country from 2012 to 2017 and an additional 53,900 guns were stolen from gun dealers. If those guns were equipped with smart technology, they would be useless. If Americans could sue gun companies for injuries and deaths caused by their weapons, then perhaps those manufacturers would have already widely implemented this technology to reduce their liability. But we can’t, and they haven’t.
There are now four states that allow civil recourse against gun manufacturers when a weapon of theirs is used to injure or kill people. However, these state laws appear to conflict with the PLCAA, as a federal judge determined in February, months after New Jersey passed a law that allows liability for gun manufacturers who fail to “establish, implement, and enforce reasonable controls” on their products. The judge found that New Jersey's law is in “direct conflict” with the purpose behind the PLCAA, putting it on hold.
Even if New Jersey prevails on appeal, we don't need a state-by-state approach; we need the repeal of the federal immunity statute. Given the current composition of Congress, repealing the PLCAA is not possible today. But it should be a rallying cry for Democrats in 2024, and if its repeal is really one of the top things Biden would ask of heaven, then he should make a repeal a big part of his campaign.
Repealing the PLCAA wouldn’t limit access to guns, but it would incentivize gun companies to take steps to prevent unnecessary deaths — just like every other industry that's concerned about being sued does.
