Opinion
By Larry Keane
What’s old is new, again. That’s the case when it comes to public nuisance lawsuits. Those are those pesky lawsuits brought by municipalities that bring claims against entities alleging that their lawfully-made and lawfully-sold products or services are harmful to communities.
In reality, they’re a trial lawyer’s dream. They attempt to place the blame on remote third parties for the failings — and even the criminal actions — of those who are ultimately responsible for their own behavior. Lawsuits like these are an attempt to absolve an individual of responsibility for their own actions and instead, like a petulant child, claim that “the devil made me do it.”
That devil, of course, is the nearest target of that blame deflection. With public lawsuits, they also happen to be companies. Those companies represent deep pockets. Those trial lawyers see a payout. The activists working hand-in-glove with those trial lawyers see the reward in the devious notion that they can bleed those companies dry with legal costs and court fees, settlements, or even damage awards if they get lucky.
This is nothing new to those in the firearm industry. As Yogi Berra once said, “It’s déjà vu all over again.”
What’s Old is New
Think back to the late 1990s and early 2000s. That’s when public nuisance lawsuits against the firearm industry lawsuits were piling up. Over 40 big city mayors conspired through the U.S. Conference of Mayors with gun control activist lawyers from the Brady Center and greedy trial lawyers. Their plan was to haul firearm manufacturers and sellers into court to make the industry pay for the criminal misuse of legal, non-defective firearms lawfully sold after a background check to law-abiding Americans exercising their Second Amendment rights. These lawsuits amounted to suing Ford or General Motors for the harm caused by drunk drivers.
This legal nightmare for the industry began when New Orleans filed suit on Halloween Day in 1998 followed the next day by Chicago’s Democratic Mayor Richard Daley. The last of the municipal lawsuits was filed by then-New York Attorney General Eliot Spitzer in June of 2000. All the cities were run by Democrat mayors, except for then-New York City Republican Mayor Rudy Giuliani whose case was taken over by Michael Bloomberg when he was elected mayor of the Big Apple. Even New York’s former Gov. Andrew Cuomo, who was serving as President Bill Clinton’s Secretary of Housing and Urban Development, got involved when he organized dozens of local housing authorities to bring their own lawsuits against gunmakers and threatened the industry with “death by a thousand cuts.”
The majority of the states — 33 — saw the misuse of the legal system and passed their own state laws barring these lawsuits from clogging court dockets and bankrupting companies through legal fees. Congress finally acted. The bill that would become the Protection of Lawful Commerce in Arms Act (PLCAA) passed out of the U.S. House of Representatives with a lopsided approval of 283–144. The same happened in the U.S. Senate, which passed the measure 65–31. President George W. Bush signed it in 2005. The PLCAA does nothing more than codify black letter tort law.
No other industry in America had been so targeted by such baseless, politically motivated lawsuits.
New Challenges
That hasn’t stopped today’s antigun politicians, lawyers and activists from dusting off the worn-out playbook to start it all over again. So far, 10 states — California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, New Jersey, New York and Washington — enacted laws in an attempt to circumvent the PLCAA and allow these sorts of frivolous lawsuits. They use public resources (read taxpayer dollars and taxpayer-funded attorneys general) to bring about these frivolous lawsuits, often in coordination with Everytown for Gun Safety, that attempt to shift the blame for the criminal actions of an individual to companies that lawfully produce and lawfully sell firearms.
NSSF is challenging those laws. There are five challenges against those state laws pending in courts today. The problem these laws face is that they still run into the fact that PLCAA is federal law. The PLCAA simply says that these agenda-driven lawsuits can’t be brought against a manufacturer that had nothing to do with the criminal or wrongful misuse of their product. And these laws aren’t unique to the firearm industry, despite the rhetoric by antigun politicians and activists. Vaccine makers have similar protections. The 2005 Public Readiness and Emergency Preparedness Act gives the Health and Human Services Secretary authority to provide legal protection to companies making or distributing the vaccines.
Manufacturers of medical devices, the airline industries and even online service and content providers are protected from frivolous lawsuits when defamatory information posted is by others.
Personal Responsibility
Sadly, that doesn’t matter much to trial lawyers and some politicians. They look for a convenient target and their bank account. It is legalized judicial extortion — it is a shakedown. The City of San Francisco just filed a lawsuit against 10 major food companies alleging they made, marketed and sold products that city officials claim the companies knew were harmful to the health of their customers, in this case, San Francisco residents. San Francisco’s lawyers claim this contributes to a “public health crisis,” language that is eerily similar to the claims they use against the firearm industry.
Just like the public nuisance lawsuits against the firearm industry in the late 1990s and early, 2000s, fast food giants faced similar claims against them during the same time period. In 2002, Joseph Connor — a 420-pound man — sued McDonald’s claiming his obesity was that fast food company’s fault. He claimed his obesity, which cost him a job, was due to their food products. That case was ultimately settled. In 2002, Caeser Barber of New York sued Wendy’s, Burger King, Kentucky Fried Chicken and McDonald’s, alleging the fast food giants failed to warn of the ill health effects. He ate at those restaurants four times a week and alleged his obesity, diabetes and multiple heart attacks were the fault of the restaurants. His case was dismissed with prejudice. In 2002, Gregory Himes, a 400-pound 15-year-old, along with nine other teens sued McDonald’s over their health-related concerns after eating at there every day since he was six. The class-action lawsuit was dismissed in 2010.
These all have a similar undercurrent. The lawsuits attempt to absolve individuals of responsibility of their decisions. In the case of fast-food restaurants, the individuals chose to eat at establishments. In the case of the firearm industry, lawyers representing the cities are attempting to absolve criminals that wrongfully misuse a lawfully-made and lawfully-sold product.
President Ronald Reagan offered sage advice that still holds true today. He said, “We must reject the idea that every time a law’s broken, society is guilty rather than the lawbreaker. It is time to restore the American precept that each individual is accountable for his actions.”
That time is now.
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About The National Shooting Sports Foundation
NSSF is the trade association for the firearm industry. Its mission is to promote, protect and preserve hunting and shooting sports. Formed in 1961, NSSF has a membership of thousands of manufacturers, distributors, firearm retailers, shooting ranges, sportsmen’s organizations, and publishers nationwide. For more information, visit nssf.org
the protection act needs a criminal component for those actively violating it say actual death by 1,000 cuts with salt spray enhancement
Here is another opportunity for the DoJ to step in as a friend and defend the accused. The laws and cases are so similar that amicus briefs could be mostly boilerplate after the first one and filed with minimal effort.
Remember, most politicians are lawyers, Their greed is boundless.
Part of the answer is to take away the easy profit motive. Enact loser pays statutes and make litigants post bonds for potential legal fees before trial begins. This will involve insurance companies and actuaries who will be forced to analyze potentially frivolous lawsuits at the outset and write a bond or policy based upon loss potential. Money talks, cow excrement walks. Unscrupulous lawyers who try shake down tactics to gain settlements will think twice when they have to potentially pay the opponent’s legal expenses. And of course the federal government can make life painful on these progressive utopias by… Read more »
Vaccines are not comparable to guns. Manufacturers should not be sued because someone misused the product. Manufacturers should be sued if the product is defective. They definitely should be held accountable if the product was laced with a toxin. Companies could not make vaccines at all because most of the ingredients are toxic. With foods there must be more disclosure of MSG, fake salt, fake sugar and artificial colors. Reducing key nutrients or using synthetic ones causes people to eat more. McDonald’s actually admits that no antibiotics means they avoid *particular* antibiotics. That’s like no artificial colors = no Yellow… Read more »
my youngest son is a county prosecutor and had been a public defender prior to that, and he has told me for years that these lawsuits aren’t designed to be won because they will not be. they are designed to harass because if you are sued and don’t answer it the plaintiff wins by default. he said if he was defending against one of these suits the first thing he would do is file a motion to dismiss and cite the decision authored by justice Kagan in the case brought by Mexico and funded by Bloomberg. he said it is… Read more »
Many of these Democrat run, big city liberal mayor’s want money to fund all their pet project’s. Since they know raising taxes will cause residents to vote against them, they have city lawyers sue gun manufacturers, paint companies, food manufacturers and so on. The latest thing for far leftists democrats to to give illegals $1,000 a month in cash, and to give poor people a ‘guarantee income’ of $500 to $1,000 a month. ( dont the ” poor” already collect welfare, adc, snap benifits and get free housing?) So who pays for this? Lawsuits against companies and manufacturers. Articles have… Read more »