Penn Undergraduate Law Journal
  • Home
  • About
    • Mission
    • Masthead
    • Faculty Advisory Board
    • Partner Journals
    • Sponsors
  • Submissions
  • Full Issues
  • The Roundtable
    • Pre-Law Corner
  • Events
  • Contact
    • Contact
    • Apply
    • FAQs
  • Home
  • About
    • Mission
    • Masthead
    • Faculty Advisory Board
    • Partner Journals
    • Sponsors
  • Submissions
  • Full Issues
  • The Roundtable
    • Pre-Law Corner
  • Events
  • Contact
    • Contact
    • Apply
    • FAQs

The Roundtable


Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.


INTERESTED IN wRITING FOR tHE rOUNDTABLE?

How to Sue the Gun Industry

12/2/2015

1 Comment

 
Picture
By Alicia Kysar

Alicia Kysar is a senior at Columbia University studying English and Political Science with a concentration in Pre-Law.

In 2005, Congress passed the Protection of Lawful Commerce in Arms Act, which provided the firearm and ammunitions industry with unprecedented protections from tort legal actions against it. This law originally came about in November of 1998 when Richard M. Daley, then the mayor of Chicago, was searching for a way to curb the gun violence in his city. At that point, there had been 471 deaths in Chicago that were a direct result of gun violence, with many more non-fatal injuries sustained. [1]

Brian Crowe, Chicago’s corporation counsel, argued that gun manufacturers were largely at fault for these incidences of violence. [2] Most of the guns used in the shootings had been sold and exchanged illegally, as it was illegal to own a gun unless it was registered before March of 1982. Crowe contended that gun manufacturers nevertheless continued to disseminate their guns by designing them for and marketing them to criminals. [3] Furthermore, given the overwhelmingly large volume of guns that were sold to a relatively limited clientele, gun manufacturers and distributors should have reasonably been able to assume that people were purchasing guns in suburban areas to distribute them illegally in cities like Chicago; however, the manufacturers and distributors of firearms seemed to have taken advantage of the situation to earn higher profits, disregarding potential safety concerns. [4]
The Protection of Lawful Commerce in Arms Act protects federally licensed gun manufacturers, as well as similarly-licensed sellers or dealers of firearms or ammunition, from tort actions that stem from “the criminal or unlawful” use of firearms or guns. [5] Essentially, this law holds that as long as the gun sold is functioning properly, and as long as the sale does not fall under a very narrow set of exceptions laid out in the original law, neither the manufacturer nor the seller can be held legally responsible for the consequences of the firing of the gun. Furthermore, if a case is dismissed under the Protection of Lawful Commerce in Arms Act, then a plaintiff who brings a case to court against a gun manufacturer or seller must then pay the defendant’s legal fees. [6] These fees are often exorbitant and difficult to pay, since the plaintiff is typically an individual affected by violence, while the defendant is often a corporation with access to its own legal team. This mandate that the plaintiff must pay the legal fees of the defendant if the case is dismissed acts as an additional deterrent against the plaintiff from bringing his or her case to court in the first place.

This law has been highly controversial, especially since it has prevented some high profile cases from being tried in court beyond a summary dismissal. One such example is the tragic shooting in a movie theatre in Aurora, Colorado, in July of 2012. One of the twelve victims killed that day was Jessica Ghawi. Her parents, Sandy and Lonnie Phillips, sued Lucky Gunner for supplying the shooter, James Holmes, with his ammunition. He purchased over 3000 rounds of heavy-duty ammunition from Lucky Gunner’s website. This transaction did not require any human contact or even a background check, which the Phillipses maintained would very likely have revealed that Holmes was “a patently dangerous homicidal man.” [7] The court dismissed the Phillipses’ claim on the grounds that Lucky Gunner was protected under the Protection of Lawful Commerce in Arms Act. The Phillipses were not asking for any financial restitution, but rather solely for “an injunction requiring the defendants to change their business practices in an undescribed manner to be approved by the court and to enjoin their present business practices until such changes have been made.” [8]

Since Congress passed the law in 2005, there have been many attempts by organizations such as the Brady Center to have the law overturned by arguing that it is unconstitutional, but none so far have been successful. Many arguments surrounding the unconstitutionality of the Protection of Lawful Commerce in Arms Act have been constructed, but the most compelling is that the law infringes on the property rights guaranteed to all citizens in the Fifth Amendment. [9]

This reasoning stems in part from Logan v Zimmerman Brush Co., a case in 1982 in which an appellant brought a suit of unlawful discrimination before the Illinois Fair Employment Practices Commission well within the 120 day statutory period for such a complaint. The Commission, however, scheduled the employee’s hearing for after the statutory period, and then argued that since the period had expired, it could not hear the case, and thus could not provide the employee with any award that he would have received had he won his case. Through an appeals process, this case made its way to the Supreme Court, which ruled unanimously that the appellant was being unconstitutionally deprived of his property interest as guaranteed in the Fourteenth Amendment due process clause. [10]

Timothy Lytton, an expert in tort law and gun cases at the Georgia State University College of Law, similarly argues that those plaintiffs who would sue gun manufacturers or sellers in civil court but cannot under the Protection of Lawful Commerce in Arms Act are being denied the potential property, the potentiality of which is guaranteed to them under the Due Process clause, and thus are receiving unconstitutional treatment. [11] An argument in the same vein of Lytton’s argument is that if Congress does have a compelling reason to limit the rights of a group to sue in court, then it is required to provide some alternatives for aggrieved parties to receive compensation. This principle, already upheld in several cases around the country, would mean that even if the Supreme Court upholds the Protection of Lawful Commerce In Arms Act, it might require that Congress establish other ways for plaintiffs to receive compensation.


[1] Raad Cawthon, “Chicago Sues Gun-makers And Retailers The Lawsuit Says Firearms Create A Deadly Public Nuisance. It Follows A Recent Filing By New Orleans.” Philly.com: The Inquirer, Daily News, November 13, 1988. http://articles.philly.com/1998-11-13/news/25733300_1_gun-industry-gun-manufacturers-gun-shops
[2] Fox Butterfield, “Chicago Is Suing Over Guns From Suburbs,” The New York Times, November 13, 1998, sec. U.S., http://www.nytimes.com/1998/11/13/us/chicago-is-suing-over-guns-from-suburbs.html.
[3] Ibid.
[4] Cawthon, Reuters, and Sun, “Chicago Sues Gun-Makers And Retailers The Lawsuit Says Firearms Create A Deadly Public Nuisance. It Follows A Recent Filing By New Orleans.”
[5] “15 U.S. Code Chapter 105 - PROTECTION OF LAWFUL COMMERCE IN ARMS,” LII / Legal Information Institute, accessed November 26, 2015, https://www.law.cornell.edu/uscode/text/15/chapter-105.
[6] Ibid.
[7] Stephen Gutowski, “Federal Judge Orders Plaintiffs to Pay Ammo Dealer’s Legal Fees After Dismissing Lawsuit (UPDATED),” Washington Free Beacon, accessed November 26, 2015, http://freebeacon.com/issues/federal-judge-orders-brady-center-to-pay-ammo-dealers-legal-fees-after-dismissing-lawsuit/.
[8] Ibid.
[9] “Suing the Gun Industry,” The University of Michigan Press, accessed November 26, 2015, http://www.press.umich.edu/136758/suing_the_gun_industry.
[10] “Logan v. Zimmerman Brush Co. 455 U.S. 422 (1982),” Justia Law, accessed November 26, 2015, https://supreme.justia.com/cases/federal/us/455/422/.
[11] “Suing the Gun Industry.”

Photo Credit: Flickr User 
Kate Gardiner

The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.
1 Comment
Cathleen White
10/19/2017 09:39:28 am

Protection of Lawful Commerce in Arms Act. We can sue all other manufacturers in this country so is this discrimination.

Reply

Your comment will be posted after it is approved.


Leave a Reply.


    Categories

    All
    Akshita Tiwary
    Alana Bess
    Alana Mattei
    Albert Manfredi
    Alexander Saeedy
    Alexandra Aaron
    Alexandra Kanan
    Alice Giannini
    Alicia Augustin
    Alicia Kysar
    Ally Kalishman
    Ally Margolis
    Alya Abbassian
    Anika Prakash
    Anna Schwartz
    Ashley Kim
    Astha Pandey
    Audrey Pan
    Benjamin Ng'aru
    Brónach Rafferty
    Bryce Klehm
    Cary Holley
    Christina Gunzenhauser
    Christine Mitchell
    Christopher Brown
    Clarissa Alvarez
    Cole Borlee
    Connor Gallagher
    Dan Spinelli
    Dan Zhang
    David Katz
    Davis Berlind
    Derek Willie
    Dhilan Lavu
    Edgar Palomino
    Edna Simbi
    Ella Sohn
    Emma Davies
    Esther Lee
    Evelyn Bond
    Filzah Belal
    Frank Geng
    Gabriel Maliha
    Georgia Ray
    Graham Reynolds
    Habib Olapade
    Hailie Goldsmith
    Haley Son
    Harshit Rai
    Henry Lininger
    Hetal Doshi
    Iris Zhang
    Irtaza Ali
    Isabela Baghdady
    Ishita Chakrabarty
    Jack Burgess
    Jessica "Lulu" Lipman
    Joe Anderson
    Jonathan Lahdo
    Jonathan Stahl
    Joseph Squillaro
    Justin Yang
    Kaitlyn Rentala
    Kanishka Bhukya
    Katie Kaufman
    Kelly Liang
    Keshav Sharma
    Ketaki Gujar
    Lauren Pak
    Lavi Ben Dor
    Libby Rozbruch
    Lindsey Li
    Luis Bravo
    Lyndsey Reeve
    Madeline Decker
    Maja Cvjetanovic
    Maliha Farrooz
    Marco DiLeonardo
    Margaret Lu
    Matthew Caulfield
    Michael Keshmiri
    Mina Nur Basmaci
    Muskan Mumtaz
    Natalie Peelish
    Natasha Darlington
    Natasha Kang
    Nayeon Kim
    Nicholas Parsons
    Nicholas Williams
    Nicole Greenstein
    Nihal Sahu
    Omar Khoury
    Owen Voutsinas Klose
    Owen Voutsinas-Klose
    Pheby Liu
    Rachel Bina
    Rachel Gu
    Rachel Pomerantz
    Rebecca Heilweil
    Regina Salmons
    Sajan Srivastava
    Sandeep Suresh
    Sanjay Dureseti
    Sarah Simon
    Saranya Das Sharma
    Saranya Sharma
    Sasha Bryski
    Saxon Bryant
    Sean Foley
    Sebastian Bates
    Serena Camici
    Shahana Banerjee
    Shannon Alvino
    Shiven Sharma
    Siddarth Sethi
    Sneha Parthasarathy
    Sneha Sharma
    Sophie Lovering
    Steven Jacobson
    Suaida Firoze
    Suprateek Neogi
    Takane Shoji
    Tanner Bowen
    Taryn MacKinney
    Thomas Cribbins
    Todd Costa
    Tyler Larkworthy
    Vatsal Patel
    Vikram Balasubramanian
    Vishwajeet Deshmukh
    Wajeeha Ahmad
    Yeonhwa Lee

    Archives

    March 2023
    January 2023
    December 2022
    November 2022
    September 2022
    June 2022
    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    May 2021
    April 2021
    March 2021
    February 2021
    January 2021
    December 2020
    November 2020
    October 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    December 2019
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    May 2019
    April 2019
    March 2019
    January 2019
    December 2018
    November 2018
    October 2018
    September 2018
    August 2018
    July 2018
    June 2018
    May 2018
    April 2018
    March 2018
    February 2018
    December 2017
    November 2017
    October 2017
    August 2017
    July 2017
    May 2017
    April 2017
    March 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    April 2016
    March 2016
    February 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    November 2014
    October 2014
    August 2014
    July 2014
    June 2014
    May 2014
    April 2014
    March 2014
    December 2013
    November 2013
    October 2013
    September 2013

Picture
Picture
​