Hold Handgun Makers and Sellers Liable : Gun control: Courts could help cut violence without restricting rights.

Under established law, manufacturers and sellers are “strictly liable” for the harms caused by their ultrahazardous products and activities. Such products, even if made properly and without negligence, can be deemed defective and therefore abnormally dangerous.

For example, those who manufacture, distribute or use explosive or toxic materials or who keep dangerous animals are subject to strict liability.

It is time to extend to handguns the legal doctrine that distributors of dangerous products are strictly liable to those injured by such products.

The theory behind holding distributors of dangerous products strictly liable is that although they may engage in lawful, non-negligent activity, manufacturers should not subject innocent victims to risks and injuries that the use of their products uniquely causes. There seems to be little justification for not applying this principle to those who engage in the distribution or manufacture of handguns, which are annually used in 650,000 violent crimes. More than 38,000 Americans die each year from injuries related to firearms.

Handguns are designed primarily to inflict injury or death. Many are made so that they can be converted into automatic weapons, others so that they would likely be used only in criminal activity. Handgun distributors, who profit from sales, should bear the enormous costs resulting from the use of handguns--costs now borne by victims, insurance companies and taxpayers, none of whom benefits from sales.

A handgun is an abnormally dangerous product, and its manufacture and sale are ultrahazardous activities. Under either of these theories, strict liability follows. It should not matter if there is an intervening criminal act by a third person, because the distribution of the handgun itself creates the risk of that act. Moreover, under normal tort law, only the innocent victim could recover, not the criminal who is shot.

Ultimately, such strict liability will result in higher insurance premiums or self-insurance, which in turn will force handgun distributors to increase the price of their products to reflect these social costs. Higher prices will mean that those who buy handguns will be paying for the costs of the product they are using. This is the way the law treats virtually all other dangerous products and activities, such as risky equipment and even oil wells in populated areas.

Because of the increased price of handguns, demand would decline. Many marginal and less responsible manufacturers and sellers would be forced out of business. And those remaining, to reduce their liability exposure, would exercise more care in the distribution of handguns.

How could this change in the law be accomplished? In many states, it could result from court decisions. Courts have thus far been unwilling to hold handgun manufacturers or sellers liable to innocent victims for the harm those guns cause. The only exception is one case in Maryland, in which a court held that the manufacturer of a “Saturday night special” could be strictly liable to a victim. Expanding tort liability to allocate certain social costs is a historic function of our common law and an appropriate role for the judiciary.

In California, a 1983 state law exempts firearms from product-liability law applicable to abnormally dangerous products. This law would have to be repealed before California courts could extend strict liability to handguns.

Additionally, Congress and state legislatures throughout the country could pass laws holding handgun manufacturers and sellers strictly liable. Such a bill is pending in Congress, which is the only way to effect such a change federally.

Strict liability for handgun injuries would not eliminate all guns. It does not restrict any person’s right to own a gun. It would not eliminate all gun violence. But it is one way to begin dealing with the human and financial costs of the epidemic of gun-caused injuries and deaths.