One Quick Answer to Sandy Hook? Repeal the 2005 Arms Act

By Andrew Cohen

A recent federal law shields the gun industry from liability for negligence. Its demise would be a good step forward after the Connecticut shooting tragedy.

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Family members and victims of mass shootings at a rally staged by the Brady Campaign to Prevent Gun Violence in Washington, D.C., on December 18. (Joshua Roberts/Reuters)

On Sunday, while Republican lawmakers were refusing to go on the morning talk shows, Democratic Senator Dianne Feinstein of California said that she would re-introduce federal legislation to ban assault weapons. On Monday, while National Rifle Association spokesmen remained in hiding, New Jersey Democratic Senator Frank Lautenberg announced that he would reintroduce a "high-capacity magazine ban." These bills likely will be among the first gun measures the new Senate will consider when it reconvenes in January, Senate Majority Leader Harry Reid said Monday.

"In the coming days and weeks," Sen. Reid said, "we'll engage in a meaningful conversation and thoughtful debate about how to change laws and culture that allow violence to continue to grow." I don't know how "thoughtful" that conversation is likely to be -- Americans tend to become hysterical when it comes to guns -- but former Supreme Court Justice John Paul Stevens said in October that the court's landmark gun ruling in District of Columbia v. Heller, is no impediment to a federal ban on automatic weapons.

So while Congress begins to contemplate these measures -- while we all engage in another bitter and divisive round of political theater over how far other forms of gun regulation ought to go in the wake of the Sandy Hook school shooting; while the scope of the Supreme Court's Second Amendment jurisprudence is evaluated anew -- let me now suggest a relatively quick way in which our federal lawmakers can send a productive message about gun violence: Congress could repeal the Protection of Lawful Commerce in Arms Act.

The Bush-era legislation immunizes gun manufacturers and gun dealers from civil liability for crimes committed with their weapons. It gives the gun industry a powerful legal defense that most other industries do not enjoy, and it creates disincentives about gun safety at the point of sale. The law strips the American people -- in this case jurors -- of the ability to render justice: to decide in court whether there are sufficient facts in negligence cases to hold gun makers and sellers financially responsible for the loss of life or limb caused by their goods.

The Arms Act does not touch upon the core of the Second Amendment's newly recognized individual right. Nor would it have had an impact upon the Connecticut shooting -- no one alleges that alarms should have been raised when the shooter's mother purchased the arsenal of weapons her son later used to gun down school administrators and all those children. But it's nevertheless a law which declares that gun transactions are somehow so necessary that the people who carry them out warrant special protection under law. This is patently absurd.

The Arms Act

The Arms Act was passed in 2005, in the depths of the Bush era, and today it remains one of the most jarring parts of a relentless conservative campaign to impose "tort reform" upon America. It shields gun-industry actors who may not have done all they can do to ensure that guns stay out of the hands of people who shouldn't have them. And it does so in the name of the hoary concept that freedom of gun commerce is more important per se than freedom from gun violence. Think that's an equation the American people embrace today?

Here below are some of the Congressional "findings" which accompany the law. The language is telling -- and downright dire in its condemnation of the rule of law and centuries-long role of judges and juries in our civil justice system. In the name of shielding potentially negligent gun dealers, Congress quickly threw under the bus virtually every legal precept Americans have treasured for the past 225 years. According to the law, having a jury of American citizens pass judgment on the negligent acts of a gun dealer weakens the very fabric of our society:

5) Businesses in the United States that are engaged in interstate and foreign commerce through the lawful design, manufacture, marketing, distribution, importation, or sale to the public of firearms or ammunition products that have been shipped or transported in interstate or foreign commerce are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended.

(6) The possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system, erodes public confidence in our Nation's laws, threatens the diminution of a basic constitutional right and civil liberty, invites the disassembly and destabilization of other industries and economic sectors lawfully competing in the free enterprise system of the United States, and constitutes an unreasonable burden on interstate and foreign commerce of the United States.

(7) The liability actions commenced or contemplated by the Federal Government, States, municipalities, and private interest groups and others are based on theories without foundation in hundreds of years of the common law and jurisprudence of the United States and do not represent a bona fide expansion of the common law. The possible sustaining of these actions by a maverick judicial officer or petit jury would expand civil liability in a manner never contemplated by the framers of the Constitution, by Congress, or by the legislatures of the several States. Such an expansion of liability would constitute a deprivation of the rights, privileges, and immunities guaranteed to a citizen of the United States under the Fourteenth Amendment to the United States Constitution.

(8) The liability actions commenced or contemplated by the Federal Government, States, municipalities, private interest groups and others attempt to use the judicial branch to circumvent the Legislative branch of government to regulate interstate and foreign commerce through judgments and judicial decrees thereby threatening the Separation of Powers doctrine and weakening and undermining important principles of federalism, State sovereignty and comity between the sister States.

This is all nonsense. The world didn't end when negligent gun sellers and manufacturers were required by state law to pay for their negligence, and it wouldn't end now if Congress were to repeal this legislation. The Arms Act elevated commercial transactions in the gun industry to near-sacrosanct stature, signalling to industry actors that they will have immunity even if they sell a gun to an obviously crazy or dangerous person. That's been a bad message to send since 2005. Today, in the wake of this year's gun violence, it's also politically untenable.

Kim v. Coxe

An illustrative case involving the Arms Act is unfolding now in Alaska. Nearly 10 months ago, the Supreme Court of Alaska heard oral argument in a case styled Kim v. Coxe, a lawsuit based upon a tragedy involving an act of gun violence. The case is still pending -- the state justices have yet to render a ruling -- but it's precisely the sort of scenario we ought to be talking about in the wake of this year's mass shootings. I wrote about this case back in March. Here, from my earlier piece, is a summary of the facts:

There is a great deal of dispute among the interested parties about exactly what happened on Wednesday, August 2, 2006, at Rayco Sales, a sporting goods store in Juneau, Alaska. The store's owner, Ray Coxe, a firearms dealer, says that he had an amicable conversation with a man named Jason Coday, whom Coxe later described as a "typical Alaskan" with a "very friendly" demeanor who was "normal, rational, polite, and not dangerous."

The family of Simone Kim tells a very different story about Coxe and Coday. In their account, Coday was a "homicidal methamphetamine-abusing fugitive" who, before walking into Coxe's store, had exhibited "bizarre behavior ... including walking around with a sawed-off shotgun and a bandolier of extra ammunition, hallucinating that people were laughing and him, and standing on the roof of a bank."

When Coday walked into Coxe's gun store that day, the Kim family says, "he had a garbage bag filled with his belongings wrapped around his waist. Coxe says that Coday "was wearing a backpack and had a sleeping bag or similar sleeping gear wrapped around his stomach in a garbage bag." To Coxe, Coday seemed "like someone who was living in the woods or had just gotten off a ferry."

Coxe showed Coday some guns -- neither side disputes that, or the fact that the two men talked about a price ($195.00) for a Ruger rifle. Coxe says that Coday told him he would think about a purchase and then put on his backpack "as if readying to leave the store." Coxe says he then went to the rear of the store to attend to other business. Several minutes later, a store clerk noticed $200 on the counter. Coxe had taken the rifle and left the money.

That's what Coxe says. Kim's family says that Coxe deposited Coday's money as if by sale but failed, as a federal firearms dealer, to subject Coday to a Brady background check or to "ensure that a Form 4473 gun purchase form and other records were completed." Coxe says that he called the police after Coday left the store. Even though the store had two video surveillance systems, Coxe later conceded, neither recorded that day.

Neither side disputes what happened next. Coday took the gun he had gotten from Coxe's store and two days later shot and killed a random bystander, Simone Kim, a 26-year-old who was working as a painter outside another Juneau store. Coday was subsequently convicted of first degree murder and sentenced to prison. Two years later, Kim's family sued Coxe, alleging that he had "negligently or illegally" supplied Coday with the gun that killed Simone.

The first state judge to look at this case concluded that a jury could find that Simone's murder was "a foreseeable consequence" of Coxe's conduct. That judge wrote: "There are facts which a reasonable jury might find put Coxe on notice that Coday should be watched while he was around the guns, including his appearance that day." Coxe's subsequent appeal brought into play the federal Arms Act. And, this time, the same state judge who would have allowed the case to go to trial said the case was precluded by the federal statute.

If the Alaska Supreme Court endorses that view, Coxe will never have to answer to the public for his conduct in that store that day. And he and other gun dealers and manufacturers all across the country will be reminded that if they are negligent in their dealings with gun buyers, they have Congress backing them up, siding with them and siding against the families of the victims of gun violence, like the family of Simone Kim, who might have lived had Jason Coday not walked out of that Juneau store with a gun that day.

Postscript

We may never know how Alaskan jurors view this case -- whether or not they would hold Coxe accountable. But the point is that those jurors, a jury of Coxe's peers, now may be deprived by Congress of the duty, of the opportunity, to render that judgment. Don't you think the people of Newtown, those most directly affected by last week's horror, would deserve the opportunity to sit in judgment as jurors if there were ever a case brought? And would it really matter to you whether that trial was a criminal case or a civil one?

Repealing the Arms Act alone isn't going to solve the problem of gun violence in America. Far more than this is needed. But 35,000 or so Americans die each year as a result of gun violence and the so-called "tort reform" contained in the law makes it harder, not easier, for gun sellers to be held accountable for their negligence. Which member of Congress is ready today to stand up and say: "We need now more than ever to keep protecting the gun industry from American juries asked to decide civil accountability for deadly violence!"

The end of this pork-barrel legislation would send the right message at an important time in the history of gun rights in this country. It would say to the gun industry that the American people, in the form of juries, will again have the powerful to decide whether gun sellers and manufacturers ought to be held accountable in some cases. And it would say to the American people that these gun transactions, where life and death can be decided, are not going to be shielded from public courtrooms by a Congress bought by a powerful lobby.

The end of the Arms Act would be something. It would be symbolic and practical. It would remind applicable gun sellers in this country that they face serious financial consequences if they fail to meet the highest levels of scrutiny when selling a weapon. And if that reminder stopped just one person like Jason Coday from purchasing a weapon, if only for a day, it would be worth it. Our long journey toward a more sensible gun policy could and should begin with this simple thought: The people, not Congress, should decide these negligence cases.

This article available online at:

http://www.theatlantic.com/politics/archive/2012/12/one-quick-answer-to-sandy-hook-repeal-the-2005-arms-act/266371/