JoSH@RED.RUTGERS.EDU (JoSH) (10/16/85)
Poli-Sci Digest Wed 16 Oct 85 Volume 5 Number 39
[There are messages pending. Out soon. --JoSH]
Contents: Personal Responsibility
----------------------------------------------------------------------
Date: 10 Oct 85 17:42 EDT (Thu)
From: _Bob <Carter@RUTGERS>
Subject: Is personal responsibility dead? (Long)
From: king at kestrel (Dick King)
My wife, who is studying law, points out a number of legal
distinctions * * * For example,
she expects the Maryland court's action to fail, not because of the
second amendment, but because it would put a crimp in interstate
commerce (because the manufacturer could be held liable in Maryland
for guns purchased in other states and used there).
Hi Dick,
You had the bad luck to touch on something I was already working on.
I. The Commerce Clause
-- --- -------- ------
I'm pretty sure you misheard your wife. If not, it seems to me that
this assertion can be attacked on three levels.
1. The states are to a degree permitted to legislate for the
health and welfare of their citizens, even if that
legislation has an effect upon interstate commerce.
"Health and welfare" can be rather broad. In
Florida Avocado Growers v. Paul, 373 U.S. 132 (1963)
California was allowed to exclude Florida avocados
not meeting the California minimum-oil-content
standard of ripeness, even though they had been
certified as ripe under a federal regulation.
2. Congress could almost certainly pass a products
liability act sounding in the Commerce Clause
that preempted state tort law. A number of bills
to this effect have pended in recent Congresses.
Until that happens, however, no one else seems
to doubt that the states have power to impose
liabilities for product defect when a product
has moved in commerce. Virtually all products
do, and there are about 8000 reported products
cases every year (producing about 2/3 of the
income of the bar) nationwide.
3. Congress can choose in effect to delegate the
task of regulation of a particular subject of
commerce to the states. The McCarran Act (1945),
doing that with insurance, was upheld and
discussed in Prudential Ins. v. Benjamin,
328 U.S. 408 (1946). I think it could be
argued that Congress specifically chose to
do this with firearms. The Gun Control Act
(1968), by prohibiting unlicensed interstate
commerce in firearms and imposing only light
federal restrictions in intrastate transfer,
could be understood as a conscious decision to
leave the field open for state regulation.
II. The Case
--- --- ----
The caption of the case you have in mind is Kelley v. R.G.
Industries, Misc. No. 20, filed in the Maryland Court of Appeals
October 3, 1985. Plaintiff, who worked in a grocery, was shot in the
course of the robbery with a Rohm RG-38S. This weapon was assembled
and initially sold by defendant, an American subsidiary of Rohm
Gesellschaft of West Germany, which manufactured its parts. The
firearm is not otherwise particularly described, except by
implication. Reading between the lines, it appears to have been an
inexpensive (approximately $50-plus) .38 caliber revolver with a two
or three-inch barrel. It apparently would have failed the factoring
criteria of BATF Form 4590, and thus would not have been able to be
imported in assembled form.
A number of cases have been brought over the last few years
seeking to impose liability upon firearms manufacturers even when
there is no defect or malfunction of the weapon in question.
Virtually all of them have been litigated by Wendell Turley, a Texas
plaintiffs' lawyer. This opinion is the first in which liability has
been imposed, and I do not yet know whether Turley represented the
plaintiff Kelley.
The opinion appears to adopt most of its reasoning from Iveson,
Manufacturer's Liability to Victims of Handgun Crime: A Common Law
Approach, 51 Fordham L. Rev. 771 (1983). After canvassing the
reported opinions, it notes that none of them have dealt only with
"Saturday Night Specials," and says
...we conclude that it is entirely consistent
with public policy to hold the manufacturers
and marketer of Saturday Night Special handguns
strictly liable to innocent persons who suffer
gunshot injuries from criminal use of their
products. [Slip Opinion at 40.]
The underlying litigation is not in the Maryland courts, but in
the U. S. District Court for the District of Maryland. It came to
the Maryland Court of Appeals by way of a request by the federal
court pursuant to the Uniform Certification of Questions of Law Act.
Hence, the Court of Appeals' return of the certification announces a
rule only. It specifically leaves to the federal court the
determination of whether RG-38S No. 0152662 is in fact within that
rule.
There is no clear-cut, established definition of a
Saturday Night Special, although there are various
characteristics which are considered in placing
a handgun into that category. Relevant factors
include the gun's barrel length, concealability,
cost, quality of materials, quality of manufacture,
accuracy, reliability, whether it has been banned
from import by the Bureau of Alcohol, Tobacco and
Firearms, and other related characteristics.
Additionally, the industry standards, and the
understanding among law enforcement personnel,
legislators and the public, at the time the weapon
was manufactured and/or marketed by a particular
defendant, must be considered. Because many of
these factors are relative, in a tort suit a
handgun should rarely, if ever, be deemed a
Saturday Night Special as a matter of law.
Instead, it is a finding to be made by the
trier of facts. [Ibid.]
III. Discussion
---- ----------
Mr. Dooley was wrong. The courts (at least the highest state courts)
seem to court the media at least as much as they follow the election
returns these days. My guess is that at least New Jersey,
Massachusetts, New York, Florida, California and Illinois will
tend to follow this lead within the next few years. That would amount
to a spectacular victory for the advocates of gun control.
Considered in its own terms, the Kelly opinion says that cheap
pistols should be driven from the market, but not more expensive
ones. This resemblers sumptuary legislation, permitting something to
the rich but denying it to the poor. Like all such classifications,
it raises real doubts.
It is hard to focus on assertions of fact in this area, because
almost all of the published social science results are corrupted by
partisanship. It does seem possible to say, however, that the bulk
of the lower end of the pistol market is not occupied by imported
parts guns like the RG-38S, but by domestically-manufactured
inexpensive small-caliber semiautomatics. These fire a .22 or .25
caliber cartridge and are noted for their relative comfort for the
inexperienced shooter and the relative lack of lethality to the
person shot. A gun in this category called "The Raven," is
apparently much prized for its reliability. There is considerable
anecdotal evidence from within the industry suggesting that the
principal purchasers of these pistols are the elderly poor. It can
certainly be argued that no one in the society should have a firearm
for home-protection. But if anyone is allowed to have one, I suspect
it should be an elderly couple living in a declining neighborhood,
who lack the experience to use a larger weapon and the money to buy a
better one.
There is a distinct demographic possibility, of course, that such a
couple might be Black. And there is a nasty anti-Black undertone
running through, not only some of the gun control and Saturday Night
Special literature, but the Kelley opinion itself. The reference
itself is a contraction of an old racist description of drunken
violence, "Saturday night in Niggertown," and the history of American
gun control legislation shows it origin as a white supremacist device
for disarming freedmen in the post-reconstruction South. In describing
the RG-38S, the Maryland Court perhaps tells more than it wishes:
[T]he manufacturer or marketer of a Saturday Night
Special knows or ought to know that he is making
or selling a product principally to be used in
criminal activity. For example, a salesman for
R. G. Industries, describing what he termed to be a
"special attribute" of the Rohm handgun, was said to
have told a putative handgun marketer, "`If your store
is anywhere near a ghetto area, these ought to sell real
well. This is most assuredly a ghetto gun.'" The
R. G. salesman allegedly went on to say about another
R. G. handgun, "`This sells real well, but, between
you and me, it's such a piece of crap I'd be afraid
to fire the thing.'" [Slip Opinion at 37.]
It is also probably possible to say that the underlying factual
premise of the Kelley opinion -- that most serious gun crime is
committed with non-Form 4590 or other inexpensive guns -- is
wrong. For one thing, there aren't, comparatively, very many of
non-Form 4590 guns; the defendant in this case is one of the few
manufacturers who assemble from imported parts. For another, much of
the material cited by the court is more than ten years old. It seems
clear that the now most dangerous gun criminals, the drug dealers,
equip themselves with weapons as expensive and well-made as those of
the police. I strongly suspect that most criminal gunshot injuries
will involve weapons rather better than an RG-38S.
Whether those injuries are compensable will depend on whether juries
are willing to put the guns involved into the elastic category
described by the Kelley opinion. I suspect that enough juries will
be enough moved by the terrible injuries of Kelley plaintiffs to
stretch the boundaries of "Saturday Night Special" pretty far. Jury
decisions are only to a very limited degree reviewable by the
appellate courts, and products liability insurors are fully aware of
them, of course. If insurance is harder to come by, marginal producers
will tend to go out of business, and stronger ones to increase
prices to pass the cost of additional exposure.
What will happen? Gun control or gun prohibition seems to me to be
an extraordinarily divisive issue. It divides the electorate
East-West, Urban-Rural and Haut Bourgeoisie-working class. A stable
dispositive answer may not be found when such an issue is decided on
the basis of something tangential like tort liability. I suspect the
pro-gun-ownership forces will seek legislation to except firearms
from the defectless products liability category. I suspect this may
not be possible at the federal level; it may well be feasible in some
states.
It will be worth watching to see what role the National Rifle
Association plays. Gun opponents tend to think of it as a powerful
lobby; but in six years (during five of which the presidency of the
United States has been held by member of the association) it has
failed to secure passage of the McClure-Volkmer bill (minor
liberalization of the Gun Control Act of 1968). Then again,
living in this democracy is an endlessly interesting.
_B
------------------------------
End of POLI-SCI Digest
- 30 -
-------