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Atty. Ralph D. Sherman

130 West Main Street • New Britain, Connecticut 06052

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Suing gun makers for others’ crimes is ridiculous

"Op-ed" article

published in The Hartford Courant

August 6, 1999

by Ralph D. Sherman

A California court recently dismissed a lawsuit that was based on the same legal principles as the City of Bridgeport’s lawsuit against 20 gun manufacturers.

The California ruling, dated May 4, received little news coverage but has great relevance to the Bridgeport case. The ruling also is good news for anyone who buys anything that is manufactured anywhere. Probably that includes anyone reading this article.

Some observers have used the words “novel” and “unique” to characterize the legal principles in the Bridgeport case. The California court, ruling on those principles, used the words “illogical,” “counterproductive,” and “ridiculous.”

In the California case, Whitfield v. Matasareanu et al., a police officer who was injured during a bank robbery sued the robbers for his injuries. He also sued the manufacturers of the guns that the robbers used. One of the manufacturers, Heckler & Koch, argued that the case should be dismissed because its foundations - those “novel” legal principles - were invalid. The California court agreed.

The most radical and dangerous foundation of the California and Bridgeport cases is the plaintiffs’ claim that a manufacturer should be held liable for making a lawful product, free of defects, and selling it in a lawful manner. This legal principle, which the plaintiffs call “ultrahazardous products liability” (UPL), is based on the assertion that the product is so hazardous that it should not be sold to the public.

The California court, in a 54-page decision, observed that UPL itself is hazardous to the public. If UPL could be used against a gun manufacturer, the court asked, what would be next? Manufacturers of bows and arrows. Hunting knives. Kitchen knives. Alcoholic beverages (which are used by drunk drivers). Automobiles (which are also used by drunk drivers). Prescription drugs (which can kill by overdose).

All of these items are commonly used every day, with no harm resulting if adequate care is employed. While the public receives many benefits from these items, they would disappear from the market if UPL were accepted as law, the court said.

On another fundamental point, the California court ruled that the manufacturer’s lawful acts - making and selling the gun - were not the cause of the injury to the police officer. The cause of the injury was the unlawful act of a third party (a bank robber), not the manufacturer, the court said. If the gun manufacturer could be sued for this injury, the court reasoned, then why not seek damages from the steel maker that provided the raw material for the gun? How about holding a fertilizer manufacturer liable if a murderer makes a bomb? (A case just like that has already been dismissed in connection with the Oklahoma City bombing.)

Finally, in a more philosophical vein, the California court discussed the roles of the judicial and legislative branches of government. The court noted that the plaintiff and his supporters (including Handgun Control, Inc., and the Violence Policy Center) seek to use this type of lawsuit to end the sale of guns to the public. The court called this goal “ill-conceived” and deemed it improper to use the judicial branch to outlaw a product that happens to be a political target at the moment.

The manufacture and sale of firearms have clearly received the approval of the legislative branch at the state and federal levels, the court said. The legislative branch has shown its approval by passing hundreds of laws that regulate the manufacture and sale of firearms, including laws requiring that manufacturers and dealers be licensed. If the judicial branch allowed this type of lawsuit to proceed, then the judicial branch would be giving itself the power of a super-legislature, the court said.

“When the judiciary steps in the place of the legislature, there is the danger of cases being decided by judges based upon their own views of social or personal utility,” the court said. A suit could be brought in court by a lone plaintiff with little or no assets - that is, someone with nothing to lose - and could result in the destruction of an entire industry, if only through the cost of defending the suit.

Instead, the court said, the decision to ban a product should be made by consensus, and “the political branch of government for achieving a consensus is the legislature.”

Anyone who believes in government by consensus should hope for a similar decision in the Bridgeport case.


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