Stanford Law and Policy Review
Symposium, Sin under Siege:
The Legal Attack on Firearms, Tobacco, & Gambling
vol. 8, no. 1, 1997: 41.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
IN RE 101 CALIFORNIA STREET: A LEGAL AND ECONOMIC ANALYSIS OF STRICT LIABILITY FOR THE MANUFACTURE AND SALE OF "ASSAULT WEAPONS"
Bruce H. Kobayashi * and Joseph E. Olson *
On July 1, 1993, Gian Luigi Ferri entered the offices of the law firm of Pettit & Martin in San Francisco carrying three firearms. After a brief but violent rampage in which eight people were killed and six others were wounded, Ferri shot and killed himself in the stairwell of the building. Although Ferri's death preempted criminal actions in the case, the Center to Prevent Handgun Violence and four San Francisco law firms have filed civil lawsuits on behalf of the victims of Ferri's violent rampage. Among the causes of action put forth by the plaintiffs is one based on strict liability against manufacturers of firearms that are designated "assault weapons."
This case represents one of a current, nationwide series of tort cases attempting to accomplish through the courts that which anti-gun groups have been unable to accomplish through the democratic legislative process: a national ban on firearms, brought about by sanctions that seek to destroy the economic viability of the firearms industry. As one commentator candidly admits:
[G]un control proponents now seek a solution from the courts. A potent reason for resorting to civil litigation is that the courts can deal with the gun control issue more efficiently than the legislature due to the reduced amount of political pressure placed on judges and juries. Gun control proponents want to hold manufacturers strictly liable for injuries caused by their "defective" goods.
Viewed another way, courts are more efficient because they are staffed by an elite group who will force its collective view of the good upon society, even where democratically-elected representatives of the general populace have rejected its approach. These lawsuits are based on the antidemocratic proposition that courts must interfere because legislatures will not enact proper legislation due to NRA-induced cowardice, and the buying public purchases these products due to NRA-induced bad judgments. The lawsuits' proponents believe that relief through judicially-created and/or expanded tort liability is especially needed in states like California, where legislatures have considered the matter and declined to adopt strict liability in the face of court decisions that properly manufactured firearms are not [Page 42] defective, or where legislatures have affirmatively acted to shield properly manufactured products from liability.
Despite numerous attempts by victims of gun-related violence, no state or federal court case holding firearms manufacturers liable for harms caused by the criminal misuse of their products has been upheld, and none has ever reached a jury. Furthermore, the California Assembly has codified court precedent rejecting strict liability in the California Civil Code.
Thus, the California Superior Court's decision in In Re 101 California Street to allow the plaintiffs' strict liability, common law negligence, and negligence per se counts past a motion to dismiss was a surprise to many in the legal community. In reaching his novel ruling, Judge Warren explained that this case differed from the "typical gun case." He claimed to be basing his ruling on California Assembly's "carefully considered legislative decision" to distinguish so-called assault weapons from other types of firearms, as evidenced by the Roberti-Roos Assault Weapons Control Act (AWCA) of 1989.
This article critically examines the legal and economic theories underlying two California statutes crucial to the reasoning of 101 California Street: California Civil Code § 1714.4, which limits recovery by plaintiffs under a strict liability theory, and the AWCA, which the 101 California Street court uses to create an exception to California Civil Code § 1714.4 and to distinguish the case from existing legal precedent.
Both other courts and the California Assembly have recognized the limits of the tort law system as a method of controlling the horrible tragedies caused by the use of firearms to facilitate crime. The court in 101 California Street should follow judicial precedent, as well as the legislative mandate set out in California Civil Code § 1714.4, by focusing on the action of the individual responsible for committing the crime rather than on remote third parties such as firearm manufacturers. Any other outcome will do little to curb crime, will arbitrarily punish law-abiding citizens, and will further strain this nation's tort law system. Moreover, comprehensive analysis suggests little validity to the claim that the California Assembly's passage of the AWCA provides a rational basis to depart from the common law precedent embodied in California Civil Code § 1714.4, an entirely separate enactment specifically intended to govern the development of tort law.
I. IN RE 101 CALIFORNIA STREET
The claims in 101 California Street stem from the deaths and injuries caused by gunman Gian Luigi Ferri on July 1, 1993. On that date at 2:56 p.m., Ferri entered the offices of the law firm of Pettit & Martin on the 34th floor of 101 California Street, San Francisco, California, carrying a Chinese-made . 45 caliber self-loading pistol and two 9mm TEC-DC9 self-loading pistols made by Navegar, Inc. In four minutes, Ferri discharged some fifty rounds of ammunition from the three firearms and shot fourteen persons on the 34th, 33rd, and 32nd floors of the building. Because his TEC-DC9s jammed early in the incident, most of the wounds resulted from Ferri's use of the ordinary .45 pistol. Eight of the gunshot victims died from blood loss, compounded by the police delay in allowing paramedics access to the injured. At 3:07 p.m., Ferri killed himself in the stairwell between the 29th and 30th floors.
Surviving victims and families of those who died brought suits seeking to hold Navegar liable under strict liability and negligence theories for the "activity" of manufacturing and making available to the general public the firearms misused by Ferri. The court overruled Navegar's motions to dismiss plaintiffs' product liability and negligence counts. Allowing the case to proceed, Judge Warren rejected the defendant's arguments that California Civil Code § 1714.4 eliminated any basis for plaintiffs' claims. The judge interpreted California Civil Code § 1714.4 to preclude only products liability suits based on a risk/utility test for design defects. Under this interpretation, suits based on other strict liability theories or negligence theories were not barred by the statute.
In addition, Judge Warren rejected Navegar's arguments that legal precedent, which uniformly denied recovery on theories of strict liability and negligence, dictated a ruling in its favor. In rejecting such precedent, the judge reasoned that because all of the cases cited were decided prior to the passage of the AWCA in 1989, the Assembly's "carefully considered legislative decision that . . . specifically identified assault weapons shall be prohibited from use in this state" distinguished the decisions cited by the defendant.
II. PUBLIC POLICY AND ASSAULT WEAPONS: AN EXAMINATION OF THE ASSAULT WEAPONS BAN
Application of strict liability may be efficient if it is possible to identify a class of firearms used exclusively or nearly exclusively for illegal purposes. Judge Warren's distinctions between the plaintiffs' claims in 101 California Street and existing precedent depended on the ability to distinguish assault weapons from other firearms. But this distinction begs the question of whether assault weapons legislation, such as the AWCA, actually does target a class of firearms used exclusively for illegal purposes. A close examination of the firearms designated as assault weapons in the AWCA clearly [Page 43] shows that the legislation fails to rationally identify a class of firearms distinguished by their use in crime or distinguishable from other functionally-identical firearms. This section examines the underlying assumption that assault weapons can be singled out because they are used predominately in crime and/or are particularly dangerous. As noted above, Judge Warren asserted that assault weapons, such as Navegar's product, were specifically singled out by the California Assembly as a "threat to the health, safety, and security" of California citizens when it passed the AWCA.
Every element of Judge Warren's rejection of prior law ultimately rests on the truth and accuracy of the findings contained in the AWCA. The relevant findings are: (1) "The weapons enumerated . . . are particularly dangerous in the hands of criminals," and (2) "each firearm has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill or injure human beings." If these findings are false, the house of inferences on which stands the court's decision in 101 California Street collapses.
Assault weapon bans are symbolic measures designed to get politicians into the media to promote the image that they are doing something. Prior to 1989, the term "assault weapon" did not exist in the lexicon of firearms. It is a political term, developed by anti-gun publicists to expand the category of "assault rifles" so as to allow an attack on as many additional firearms as possible on the basis of undefined "evil" appearance. In drafting the AWCA, then, California legislators tried to give technical meaning to a formless concept where none had existed before. An early, non-politicized definition developed by the Federal Bureau of Alcohol, Tobacco, and Firearms (BATF) emphasizes the nature of the problem. After defining a true "assault weapon" as a machine gun capable of fully-automatic fire, the BATF proposed the following definition:
Assault Weapon Derived Semi-Auto - a firearm cosmetically similar to an Assault Weapon, but incorporating entirely different receiver and internal components, designed in cooperation with BATF, not to be convertible to full-auto, rendering the firearm capable of semi-auto fire only, it is functionally identical to commercial semi-auto hunting rifles, target rifles and shotguns and may incorporate a detachable box magazine[,] bayonet lug and pistol grip/folding type stock . . . . 
The key elements of this definition are looks or style ("cosmetically similar"), the absence of a rational difference from "good" guns ("functionally identical"), and the availability of non-functional accessories ("detachable box magazine" etc.)." Since determinations of similar appearances or style vary from person to person, the political nature of the concept and its ambiguity were exposed early.
The process that led up to enactment of the AWCA in California has all the indicia of a political swindle: (1) the use of "assault weapon" as a catchy jingle; (2) suppression of the truth; (3) false and misleading claims; and (4) a promise too good to be true. The findings on which Judge Warren's decision depends are the result of this swindle, which was carried out in late 1988 and early 1989.
A. PASSAGE OF THE AWCA: A TIMELINE
The suppressed Bureau of Forensic Services and Bureau of Narcotics Enforcement data make clear that the firearms identified as assault weapons are virtually never used in crime. In addition, the California Department of Justice memoranda and reports confirm that assault weapons are not significantly distinguishable from other functionally-identical firearms that have not been restricted by the AWCA. Indeed, David Kopel's analysis suggests that the ban would not withstand even rational basis review, since there is little evidence that such firearms are used predominately or even frequently in crime, the statutory definitions of assault weapons are inconsistent and irrational, and the restrictions result in arbitrary suppression of the constitutional right of self-defense.
B. THE RESULTS OF POORLY CONCEIVED LEGISLATION
Estimates based on the FBI Uniform Crime Reports and other police statistics suggest that assault weapons are used in less that one percent of all violent crimes. For example, in California, in 1990, assault weapons comprised thirty-six of the 963 firearms involved in homicides or aggravated assaults and analyzed by police crime labs, and only fifty-eight of the 1,979 firearms seized from California narcotics dealers. Moreover, firearms designated as assault weapons by the AWCA are rarely used to assault police officers. Thus, the proposition supporting the AWCA¾that the listed weapons are the favorites of gangs and drug dealers¾is false.
It is also a fallacy to assume that the firearms classified as assault weapons are "more dangerous" than those not listed. The legislature declared that such weapons were singled out because they had a "high rate of fire and capacity for firepower." However, neither of these findings is true. Indeed, none of the firearms specifically designated in California Penal Code § 12276 are true assault weapons, because none are capable of fully-automatic fire, which allows the shooter to discharge multiple rounds with a single squeeze of the trigger. Rather, all of the listed firearms are semiautomatic firearms, requiring the shooter to squeeze the trigger deliberately each time a round is discharged. The rates of fire on all the firearms listed in the AWCA are controlled by the rate at which the shooter can repeatedly squeeze the trigger. Thus, the firearms listed in §12276 cannot be distinguished on the basis of "rates of fire" from hundreds of revolvers, pump, and lever-action firearms, or from semiautomatic pistols, rifles, and shotguns not designated as assault weapons¾all of which are capable of accurately discharging about one round per second.
Nor can the firearms listed in § 12276 be distinguished on the basis of their "capacity for firepower." As used in the AWCA, firepower refers to the ammunition capacity of the firearm, which is determined by the number of cartridges the firearm can discharge before the operator must pause to reload. The use of high-capacity magazines in any semiautomatic firearm capable of accepting one might satisfy this criteria. But, as Judge Warren recognized in his opinion, the California Assembly expressly rejected regulation of high-capacity magazines. Since firepower is a characteristic only of the unregulated magazine and not of the listed firearm, it cannot be a valid criteria for distinguishing one firearm from another. Under these circumstances, capacity for firepower is meaningless.
The firearm that is the subject of the 101 California Street lawsuit, Navegar's TEC-DC9, is functionally-identical to and fires the same ammunition as hundreds of 9mm semiautomatic pistol models not classified as assault weapons. The firepower of Navegar's gun can be matched or exceeded by putting an extended ammunition magazine (not regulated by California law) into any of the many non-assault weapon pistols that accept detachable magazines, by carrying spare pre-loaded magazines, or by simply carrying two or more smaller 9mm pistols. The inability to distinguish firearms designated in § 12276 as assault weapons from hundreds of other firearms is not surprising given that definitions of assault weapons contained in bills such as the AWCA are based on "looks or style" instead of function Consider the attributes of three similar pistols, compared in Table 1.
Is there a difference worth a distinction? All three firearms in the illustration accomplish the identical function¾they discharge a 124 grain projectile downrange. Furthermore, with a similar large capacity magazine in place, none is concealable without a coat, duffle bag, or briefcase. The most powerful pistol (Enforcer 3000) is legal, as is the most concealable pistol (S&W 5906). The price difference among the three pistols is relatively small. There is nothing about the Intratec TEC-9 that makes it more dangerous than the two legal pistols; they differ only in cosmetic features or nonfunctional accessories. This lack of a significant difference reveals the irrationality of the statutory distinction, for there is no relevant characteristic that the TEC-9 does not share with the Enforcer 3000, the Smith and Wesson 5904, and all other guns. The only [Page 46] difference is that the TEC-9 is a big, black 9mm pistol and not a smaller, lighter colored one. Although basing regulation on cosmetic differences sounds crazy, this is precisely what the AWCA has done.
To someone familiar with firearms, the guns listed in § 12276 appear to have been selected by persons thumbing through a picture book of firearms, looking for ugly guns. Similarly, the federal assault weapons ban contained in the 1994 Crime Bill¾defining an assault weapon based on stylistic or cosmetic features such as the presence of a bayonet lug, pistol grip, or flash suppresser rather than function¾was, in fact, based on a picture book review. The incoherence of this basis for distinction led a California Department of Justice official to say in 1991, as the AWCA was being amended: " [w]e can effectively control all semiautomatic weapons or leave them all alone. What I don't think we can accomplish is proper implementation of a vague and ambiguous law."
This type of legislation has encouraged manufacturers like Navegar to continue manufacturing and selling functionally identical firearms simply by removing or altering the offending stylistic or cosmetic features and renaming the firearm. In fact, under the more specific "forbidden features" list of the Feinstein Amendment, the BATF has authorized manufacturers to do exactly that. And manufacturers, seeking to comply with the law, have removed the "offensive" stylistic or cosmetic features and marketed firearms that look different but function identically. Thus, because the standard is irrational, evasion and compliance are objectively indistinguishable. The gun either has the requisite number of offensive features or it does not; the manufacturer's motivation is irrelevant.
Categories are even less neat under the AWCA. The imprecise California statute has proven to be a nightmare for those who administer it and live under it. It is full of vague, ambiguous, and undefined terms such as "type," "model," "variations," "minor differences," "class," "identical except for slight [changes]," "modification," and "enhancement." The term "series" purports to be defined, but only by a provision that brings back such slippery terms as "variations" and "minor differences." Similarly ambiguous terminology has caused a number of statutes and ordinances, including portions of a New Jersey statute and portions of Denver and Columbus city ordinances, to be invalidated as unconstitutionally vague.
The 1991 amendments to California Penal Code § 12276 did not resolve the ambiguities in the AWCA. The Los Angeles Times succinctly reported one reaction to the amendments:
"When we came in, the law was flat out unenforceable," said an aide to Attorney General Dan Lungren, who asked not to be identified because he has to work with legislators. "Please understand that we got stuck with what the Legislature gave us. We got handed a pile of dog¾and we've been trying to make the best we can out of it."
The Los Angeles Times article noted that even expert firearms examiners cannot agree on what is covered by the amended California law. Even the process for adding firearms to the list reflects this ambiguity.
The problem of applying the AWCA to new firearms models is neatly illustrated by the instruction contained in Penal Code § 12276.5(b) that the court "shall strictly construe this paragraph [applying a test of 'identical except for slight modifications and enhancements'] so that a firearm that is merely similar in appearance but not a copy cannot be [declared an assault weapon]." However, all the modifications labeled as "slight" are nonfunctional "appearance" features or accessories. Consider whether the composition of the stock as "wooden, plastic or metal" in any way impacts on the functional dangerousness of the firearm or whether it is merely the analog of an actress wearing a blond wig. The wig may change the entire visual impact of the actress but she is still the same person. With respect to firearms, function is the only constant¾yet that cannot be the essence of a "copy," for then all firearms (even the M1 Carbine deliberately excluded from the list) would be assault weapons. Appearances are expressly excluded from consideration, but they are the only variable. This focus on appearance rather than function is why the statute is irrational. It is no wonder firearms experts cannot agree on its coverage. Because the assault weapon concept is entirely a cosmetic or stylistic matter, a strict application of § 12276.5(b) as required by the statute should preclude extension of the list.
Indeed the TEC-DC9 misused by Ferri in the course of his crime is an example of this confusion. Although Ferri purchased his firearm in Nevada, he legally could have purchased the same firearm in California. The AWCA bans only the designated Intratec TEC-9. Navegar's new TEC-DC9 has not been added to the list of prohibited firearms, and can be sold legally in California. In other cases, the only difference between a firearm and a designated assault weapon is that the firearm will have the bayonet lug ground off. While some see this as a blatant attempt to circumvent the law, [Page 47] it is instead an attempt to comply with the arbitrariness of a law based on cosmetics or style, rather than substance.
The inferences that Judge Warren draws from the AWCA findings are only as strong as their foundation. That foundation, as demonstrated, does not comport with reality. Thus, it cannot be the basis for a justifiable inference affecting other areas of law, such as torts. Neither California Civil Code § 1714.4, which expressly deals with the subject matter of tort liability, nor established legal precedent, should be contorted and overturned on the basis of a mire of legal quicksand such as the AWCA.
III. BARRIERS TO PLAINTIFF RECOVERY: CASE LAW AND CALIFORNIA CIVIL CODE § 1714.4
This section considers Navegar's argument that case law and California Civil Code § 1714.4 bar plaintiff recovery in 101 California Street. The first part of this section examines unsuccessful attempts to use traditional strict liability doctrines to find manufacturers of well-functioning firearms liable for injuries to third party victims. The second part examines the theory of plaintiff recovery set out in Kelley v. R. G. Industries. Finally, this section examines the limitations that California Civil Code § 1714.4 places on plaintiffs relying on theories of strict liability.
A. REJECTION OF LIABILITY UNDER §§ 402A, 519, AND 520 OF THE RESTATEMENT (SECOND) OF TORTS
Many court observers were surprised by Judge Warren's overruling of the Navegar demurrers, since an examination of case law suggests insuperable barriers to recovery for plaintiffs in this type of case. While numerous law review articles have suggested, in theory, that firearms manufacturers be held strictly liable for deaths and injuries resulting from the misuse of a perfectly-functioning firearm, in fact, attempts by plaintiffs to hold firearms manufacturers liable under these circumstances have been uniformly rejected by the courts. In three recent cases involving similar claims arising out of the Long Island Railroad tragedy, both state and federal courts rejected all of the theories offered by the plaintiffs in 101 California Street.
Like the plaintiffs in 101 California Street, plaintiffs in previous cases have argued that: (1) the manufacture of firearms is an abnormally dangerous or ultrahazardous activity under Restatement (Second) of Torts §§ 519 and 520; (2) a defect in the firearm makes it unreasonably dangerous to the user or consumer under Restatement (Second) of Torts § 402A; and (3) firearms are defective in design under a risk/utility analysis, also under § 402A.
In contrast to the ruling in 101 California Street, all other courts have rejected the plaintiffs' theories based on §§ 519-520. In dismissing the cases, courts have consistently ruled that application of these theories requires an examination of the use rather than the manufacture and sale of the firearm. The graven of an ultrahazardous activity claim is that the act is in and of itself dangerous. Several elementary examples illustrate this. First, the activity of damming a stream creates a store of potential energy from the large scale release of thousands of acre-feet of water. Such a release is unnatural (because a freely flowing stream passes this potential energy along in harmlessly small units) as well as unavoidably dangerous to those downstream. The classic example of an ultrahazardous activity is blasting, as the use of dynamite (but not the manufacture of dynamite) is unavoidably dangerous. Finally, cigarettes¾when used as directed¾kill the user, but guns¾when used as directed¾do not.
In finding that the proximate cause of harm is the misuse of the firearm, not the act of manufacturing and selling firearms, courts uniformly recognize that manufacturers should not be held strictly liable under a traditional products liability theory for injuries caused by the misuse of firearms that are neither negligently produced nor defective in design. Applying strict liability makes the manufacturer an insurer against all injury and raises an economic barrier to manufacturing the product. That is, of course, the ultimate goal of the Center to Prevent Handgun Violence in the 101 California Street lawsuit.
Judge Warren's decision in 101 California Street to ignore common law precedent and allow plaintiffs' ultrahazardous activity claim to proceed rests on the assumption that passage of the AWCA strips pre-1989 cases of precedential value. It is unclear, however, how the passage of the AWCA affects the precedential value of these cases, none of which are based on the specific attributes of the firearm involved. And, as demonstrated in the previous section, the AWCA is a precarious premise on which to posit a legal argument.
Previous courts have similarly rejected plaintiffs' second theory that the manufacture and sale of firearms is unreasonably dangerous to the user under Restatement § 402A. In unanimously rejecting § 402A as a basis for imposing strict liability, courts have generally applied a "consumer expectations" test. Under such a test, the courts have ruled that firearms that discharge when the trigger is pulled by its user are not defective, but functionally correct. As the court stated in McCarthy, the "functional element of the design of an inherently [Page 48] dangerous product" cannot be the basis for a "defect" claim resulting in strict liability. Discharging a projectile downrange is the sole and necessary function of all guns. What the projectile strikes is wholly within the control of the user, not the manufacturer. Thus, a firearm is not "defective" merely because it is capable of being used to facilitate the criminal activity of its user, and because the user's crime inflicts harm.
In addition to the consumer expectations test, liability under Restatement § 402A in some states, including California, can be imputed through application of a risk/utility balancing test like that set out in Barker v. Lull Engineering. Thus far, no plaintiff has prevailed on the basis of a risk/utility theory against a firearms manufacturer. Barker may be distinguished from firearms cases because it was concerned with "excessive preventable danger." However, where the sole function of a firearm is to discharge a projectile, the shooting of a gun is not considered a "preventable" occurrence. And, in California, a finding of strict liability against a firearm manufacturer based upon the risk/utility analysis is explicitly prohibited by California Civil Code § 1714.4(a).
B. THE "NEW" COMMON LAW THEORY IN KELLEY V. R.G. INDUSTRIES
The sole exception to an otherwise uniform national rejection of strict liability for firearms manufacturers is the Maryland case of Kelley v. R.G. Industries. Kelley involved the shooting of a grocery store clerk by an unidentified assailant during an armed robbery. Consistent with the cases cited above, the Maryland Court of Appeals in Kelley rejected the plaintiffs' arguments for imposition of liability based on Restatement §§ 402A, 519, and 520. The court, nevertheless, found for the plaintiff by applying a "new" common law theory of strict liability, and by holding that product-category liability exists for one subclass of firearm¾the "Saturday Night Special." The Kelley Court reached this holding through a three-part analysis which requires that: (1) The risk of the product to society must outweigh its social utility; (2) The primary use in criminal activity is foreseeable or within the knowledge of the maker or seller; and (3) The degree of fault is weighted toward the maker or seller rather than the injured party.
At the core of the Maryland Court of Appeals' ruling is a desire to use a flexible common law to advance public policy. That concept is ultimately the basis of all of the litigation brought by or with the assistance of the Center for the Prevention of Handgun Violence. As such, these cases are designed to induce courts to interfere where legislatures have consciously determined not to tread. Some state legislatures, like California's, have already expressly rejected this extension of tort law to properly-functioning products, while other states have consciously ignored proposals to consider such an extension of liability.
The two primary motives behind the imposition of strict liability on firearms manufacturers are to control crime and provide compensation to injured victims. Neither survives analysis. Under the crime control theory, proponents of manufacturer liability argue that liability costs function as a corrective tax that increases the price of firearms, thereby reducing both the number of firearms sold and the deaths and injuries caused by these firearms to an optimal (i.e., lower) level. There is no empirical evidence, however, that manufacturer's tort liability has any impact on criminal misuse. It is unlikely that such a tax would reduce the incidence of gun use in criminal activity for several reasons. First, the number of guns required to meet criminal demand is tiny compared to the number of guns owned for non-criminal purposes. Second, criminal demand is not elastic, and criminals who could no longer afford to buy guns legally would seek new channels of illegal supply (such as the drug importers/sellers who currently provide a large proportion of the guns possessed by criminals). Third, since guns are generally used by criminals to intimidate their victims, any firearm will do. Furthermore, the prevalence of guns is inversely related to crime rates, confirming that a few firearms are enough for criminal needs.
A liability tax on firearms will increase social welfare only if firearms generate greater social costs than benefits. The definitive study on self-defense demonstrates that there are over 2.5 million successful defensive gun uses each year. Since annual gun misuse in crimes numbers about one million incidents, there is a positive benefit ratio of 2.5 to 1. The most recent and comprehensive study of the benefits of defensive gun use establishes the following proposition: If, in 1992, all states had allowed responsible citizens to carry concealed firearms, there would have been over 1500 fewer murders, over 4100 fewer rapes, and over 60,000 fewer aggravated assaults in 1992 alone. Furthermore, the annual social benefit from the reduction in crime costs imposed on society would exceed 6.2 billion dollars. These studies confirm that the widespread availability of firearms in the hands of responsible citizens results in a massive social benefit in terms of lives saved, injury avoided, and property secured.
If legitimate and illegitimate uses of firearms can be distinguished, it is more efficient to concentrate any tax on those who misuse firearms rather than on [Page 49] those who manufacture firearms. A policy that concentrates on a more vigorous enforcement of criminal law would punish and economically deter those who misuse firearms, while protecting those who use firearms for socially desirable purposes, such as self-defense. Indeed, applying these principles, the Maryland court in Kelley held that it would be against public policy to impose strict liability on manufacturers or marketers of handguns generally.
A liability tax on manufacturers might be efficient, however, if it were possible to identify a class of firearms used exclusively or nearly exclusively for illegal purposes. In order to identify such a class, one should compare the number of a certain class of guns used by criminals to guns of this class used by all gun consumers. That ratio is never used in gun debates, however, as proponents of gun control prefer to use the ratio of guns of this type used by criminals to guns of other types used by criminals. The latter ratio tells us nothing about whether the class of guns is legitimately used by law-abiding citizens, since it does not examine that element at all. The latter ratio allows transitory fads in criminal preferences to determine what firearms responsible, non-criminals may or may not possess, irrespective of the responsible gun owners' needs or preferences. In any event, discussions of "crime guns" based on the latter ratio are completely worthless as a basis for the formulation of public policy.
If, under a proper analysis, a product-category of firearms could be identified that has no legitimate purpose, a liability tax on the manufacture and sale of such firearms would deter or otherwise punish few legitimate uses, and thus might be efficient. The Kelley court concluded (erroneously) that there was an identifiable category of handgun, the "Saturday Night Special," such that imposition of strict liability would be appropriate. In applying their analysis, however, the Kelley court relied on a faulty assumption that "Saturday Night Specials," defined primarily on the basis of their low price, are "particularly attractive for criminal activity, and generally unfit for legitimate purposes." Even proponents of strict gun control admit that most handguns used in crime would not be classified as "Saturday Night Specials." In fact, the Maryland Handgun Roster Board (established as part of the legislative repeal of the Kelley rule) has determined that only 28 out of over 1500 handguns reviewed are unqualified for sale based on a factoring system that weighs both sport and self-protection as positive factors.
If we use the proper ratio for comparison¾number of guns of a particular model used by criminals compared to number of guns of that model used by all consumers¾no distinction between "good guns" and "bad guns" emerges. Guns are tools just like hammers; one can buy a hammer for $4.99 or $49.99, but both will drive a nail. The occasional user (such as a criminal) can accomplish his goals with a less durable product than the devoted, law-abiding user (such as a competitive shooter).
All guns can be used to kill or injure, since the firearm solely fires a projectile; it is the human operator and the circumstances of his operation that determine whether the discharge of a projectile is a "good use" or a "bad use." If one firearm is "bad" today, a criminal will choose to facilitate his unlawful act tomorrow with another model not yet regulated as "bad." Since there is no functional difference, as more and more guns become classified as "bad" guns, there is no stopping the slippery slope. Those familiar with firearms¾whether sportsmen, self-defenders, or forensic laboratory technicians¾know this. Those unfamiliar with firearms¾such as judges, professors, and many politicians¾continue to search for the Holy Grail of the "crime gun."
Nor is it clear that the second goal of tort law, providing compensation for victims, is consistent with advancing economic efficiency or public policy. Proponents of imposing strict liability argue that if gun manufacturers are not required to pay, victims are unlikely to be compensated for their injuries or damages. It is true that victims are unlikely to secure compensation from the criminal, who is probably judgment-proof, or, as in the case of Ferri, dead. There is no rational reason, however, to place the costs of this insurance on the enormous number of responsible gun owners who have not, and will never, misuse firearms. More importantly, legal scholars have traced much of the recent expansion of and current problems with the tort system to liability awards as a form of social insurance via liability awards. In other words, even if one agrees with the goal of compensating gunshot victims, the tort system is not an economically efficient or rational way to provide such insurance.
In addition, attaching liability to manufacturers because the guns they make are small and inexpensive, such as "Saturday Night Specials" targeted by the Kelley court, is likely to have two additional pernicious effects not considered by the Maryland court. First, since the Kelley decision focuses its effective prohibition on inexpensive guns, a liability tax will have a disproportionate effect on law-abiding, low-income consumers. This group of law-abiding citizens are more likely to live in neighborhoods riddled with crime, more likely to lack effective police protection, and the least able to afford increases in the price of these firearms caused by the imposition of a liability tax. Second, [Page 50] even if a liability tax is successful in increasing the average price and reducing the quantity of "Saturday Night Specials" in circulation, the number of deaths caused by the illegal use of firearms may rise. Because of the tax's disproportionate impact on cheaper firearms that are of smaller caliber, criminals will move away from these less lethal firearms toward more lethal, large caliber handguns or, even worse, rifles or shotguns. Any positive effect from the decrease in the number of inexpensive firearms circulating may be more than offset by dramatic increases in mortality rates.
Thus, it is far from clear that the Kelley decision is consistent with a public policy goal of increasing social welfare. In any case, the effect of Kelley, both in Maryland and as a model for successful plaintiff recovery in other jurisdictions, has been limited. The decision in Kelley was subsequently mooted by the Maryland legislature. In addition, several courts (including the Ninth Circuit Court of Appeals interpreting California law) have declined to adopt the Kelley rule. Furthermore, under California law, allowing such suits would directly conflict with California Civil Code § 1714.4.
C. CALIFORNIA CIVIL CODE § 1714.4
The California State Assembly, fearing an onslaught of strict liability lawsuits against gun manufacturers, enacted Civil Code § 1714.4 in 1983. Section 1714.4 reaffirms existing law by rejecting any public policy that imposes strict liability on the manufacturer of a properly-functioning firearm.
In enacting § 1714.4, the Assembly explicitly sought to eliminate the three grounds on which plaintiffs' lawyers were then seeking expanded tort liability. In addition, it implicitly affirmed the existing rule, which required a real error in production or design before liability would be imposed. Properly construed, the statute achieves both goals. Section 1714.4 rejects the three arguments for expanding tort liability. First, subpart (a) rejects the balancing test that could result in a finding of liability if the benefits of the firearm are outweighed by the potential risk of injury from its discharge. Next, section (b)(1) declares that a firearm is not defective merely because of its potential to cause injury when discharged. Finally, (b)(2) states that the human act of discharging the firearm, not the firearm's potential to cause injury, is the proximate cause of any injuries that result from its discharge. By enacting § 1714.4, the Assembly also declared its unique competence to deal with tort liability of firearms manufacturers and invalidated the argument that legislative inaction is a "green light" for judicial creativity in this area. Having shown that the Assembly can and will act, the justification for judge-created liability based on vaporous inferences weakens to nothing. As one commentator notes: "Both action and inaction by legislative bodies leads to the inescapable conclusion that they have uniformly rejected strict liability for gun suppliers."
Prior to the enactment of § 1714.4, courts had only applied a risk/utility standard in firearms cases where the product had malfunctioned. Because the enactment of the California statute clearly responded to suits in which the firearms had not malfunctioned, it was undoubtedly designed to prevent extension of the application of risk/utility analyses to cases where the first prong of the Barker test (that the product has malfunctioned) has not been met.
Judge Warren's opinion, however, adopts the argument that California Civil Code § 1714.4 only rules out an action based upon the risk/utility prong of the Barker test for design defects, and thus allows suits under Restatement theories, negligence theories, or under the Kelley rule. This tortured interpretation of the statute achieves the exact result the statute is designed to prevent¾the application of a risk-utility test to a correctly functioning firearm. Thus, in contrast to the Kelley decision, which was not constrained by a statute similar to California Civil Code § 1714.4, Judge Warren's approach is in direct conflict with an express legislative decision.
Judge Warren's reliance on the AWCA "findings" is mistaken. Findings do not constitute law, but rather are an interpretative aid to understanding solely the specific statute to which they relate. Thus, they neither restrain nor extend the meaning of an unambiguous statute. The findings contained in § 5 of Statutes 1989, chapter 19 provide a basis solely for interpreting the AWCA, not for retroactive, judicial rewriting of Civil Code § 1714.4.
It is one thing to use findings to interpret the very statute to which they are attached, because, even if misleading, they do reveal a basis on which that specific statute was enacted. Another situation altogether is presented when inferences about other statutes or the common law are drawn from isolated findings. If the findings are false or misleading, the foundation for the chain of inferences is fundamentally unsound. An example from another jurisdiction illustrates this point. In Kelley, the court thought it had discovered a "finding" that so-called Saturday Night Specials were an identifiable class of firearms which had no legitimate use. Based on this alleged finding, the court built a house of inferences leading to its imposition of strict liability. But when the Maryland legislature rejected the Kelley rule and established a system to adjudicate the meaning of [Page 51] "legitimate" use, virtually all firearms passed. Similarly, Judge Warren's chain of inferences (supporting his rejection of all prior precedent) is built on a foundation of shifting sand (a false understanding of firearms use and technology) and is thus unsound.
As demonstrated earlier, the AWCA findings do not reflect reality and are political justifications. But, even if accurate, the key finding that the potential risk of injury outweighs the benefits of the product (for hunting and recreation) constitutes a basis for extending tort liability that § 1714.4(a) expressly disallows. Furthermore, "utility" for purposes of risk/utility analysis includes protection, yet the AWCA does not consider any such element in its balance. The Maryland experience demonstrated that all guns have substantial utility for self-protection. Thus, the AWCA findings are insufficient basis for imposing tort liability.
Courts and analysts must also view the interplay between the AWCA and § 1714.4 in the context of the give-and-take of the legislative process. Before inferring that findings made in the enactment of one statute are intended to reduce or eliminate properly broad application of another statute, one must consider the compromises inherent in all legislation. Perhaps the AWCA was not accompanied by a simultaneous change to § 1714.4 in 1989, because none was intended. The Assembly understood § 1714.4 and its implications as explored by legislative committees and various commentators. The legislators knew that case law has universally rejected tort liability for manufacturers of properly functioning firearms. They could have changed both statutes but chose not to do so. There is certainly no basis for a judicial inference otherwise¾especially not one that turns California tort law on its head.
Another facet of § 1714.4 needs to be explored. All theories of the strict liability and negligence claims sustained in 101 California Street depend upon a finding that manufacture and sale of the firearm was not only a cause in fact ("but for" cause) but also the proximate cause of the injury. Yet that is precisely the issue governed by Civil Code § 1714.4(b)(2), which declares that the injuries "are proximately caused by the discharge" of a properly manufactured firearm by the user. The case law uniformly follows § 1714.4 and holds that criminal conduct is an independent supervening act which breaks the chain of causation. That is the correct result.
Because all firearms discharge projectiles (that is their exclusive function), it is the intervention of the user which determines whether a discharge occurs and what the projectile strikes. Whether a particular discharge is harmless or injurious is wholly within the independent control of the user; the manufacturer and seller have no power over this choice. Therefore, the firearm cannot be an element of proximate cause unless the firearm malfunctions.
Previous courts and the California Assembly acted sensibly in recognizing the limits of the tort law system as a method of controlling criminal acts such as the tragedy at 101 California Street. Under the analysis presented in this article, the correct outcome in 101 California Street would rest solidly on both California precedent and the legislative mandate set out in Civil Code § 1714.4, which directly focus on altering or preventing the actions of individuals responsible for committing criminal acts. Any other outcome will do little to curb crime, will further strain this nation's embattled tort law system, and will divert attention away from rewarding and protecting the efforts of responsible citizens and instead erroneously punish them for the criminal acts of others. Providing responsible citizens with the right to carry concealed weapons, as recently enacted in dozens of states, may prove to be more effective in stopping homicidal maniacs like Gian Luigi Ferri than misguided attempts to tax certain "styles" of firearms out of existence. [Page 52]
TABLE 1: A COMPARISON OF THREE SIMILAR FIREARMS
"Politically Protected" Gun
Smith & Wesson
32 rounds are available
30 rounds are available
30 rounds are available
* Bruce H. Kobayashi, Associate Professor of Law, George Mason University School of Law. Joseph E. Olson, Professor of Law, Hamline University School of Law.
1. See Fogel v. City and County of San Francisco, No. 959316 (Cal. Super. Ct. filed Mar. 14, 1994).
2. While this article focuses on strict liability claims, plaintiffs have been similarly unsuccessful in pursuing negligence claims against firearms manufacturers. Negligence suits have failed because plaintiffs cannot show that the firearms manufacturers violated any laws or had either actual or constructive knowledge of the acquiring party's incompetence. See Gerald M. MacKarevich, Manufacturers' Strict Liability for Injuries From a Well-Made Handgun, 24 WM. & MARY L. REV. 467, 471-78 (1983). While courts have held retailers liable for injuries and deaths resulting from gunshot wounds under a negligent entrustment theory, such holdings have been limited to cases where the retailer failed to comply with statutory procedures, or where the retailer had sold the firearm to an obviously incompetent or intoxicated person. See Franco v. Bunyard, 547 S.W.2d 91 (Ark. 1977); Moning v. Alfono, 254 N.W.2d 759 (Mich. 1977). These cases can easily be distinguished from cases against firearms manufacturers. Further, many of the ambiguities involved in these cases regarding the adequacy of statutory procedures should be remedied by the requirement that mandatory criminal background checks be done by local law enforcement officials for dealers under the 1993 federal legislation. See 18 U.S.C. § 922(s) (1994).
3. See Mother, Four Others Want Industry Held Liable For Violence, ST. PAUL PIONEER PRESS, Mar. 30, 1996, at 4A (describing a series of tort cases, on various theories, underway in California and New York under the guidance of the Center to Prevent Handgun Violence).
4. Rose Safarian, A Shot at Stricter Controls: Strict Liability for Gun Manufacturers, 15 PAC. L.J. 171, 173 (1983); see generally Joshua Horwitz, At Issue: Strict Liability: Should Assault Weapons Makers Be Liable for Gun Injuries? Yes: Justice for Victims, 77 A.B.A. J. 36 (1991); Lawscope: Handguns: New Target for Tort Lawyers, 67 A.B.A. J. 1443 (1981); Stuart M. Speiser, Disarming the Handgun Problem by Directly Suing Arms Makers, NAT'L L.J., June 8, 1981, at 29, 30.
5. See Philip D. Oliver, Rejecting the "Whipping-Boy" Approach to Tort Law: Well-Made Handguns Are Not Defective Products, 14 U. ARK. LITTLE ROCK L.J. 1, 14-16 (1991). The NRA is the National Rife Association of America, a nonprofit association of three million individual members whose purposes include action to:
[P]rotect and defend the Constitution of the United States, especially with reference to the inalienable right of the individual American citizen guaranteed by such Constitution to acquire, possess, collect, exhibit, transport, carry, transfer ownership of, and enjoy the right to use arms, in order that the people may always be in a position to exercise their legitimate individual rights of self-preservation and defense of family, person, and property, as well as to serve effectively in the appropriate militia for the common defense of the Republic and the individual liberty of its citizens.
NRA Bylaws, Art. II(1) (1996).
6. This article does not address the merits of the argument to give California tort law extraterritorial reach (since the guns used by Ferri were made in Florida and sold in Nevada), which would impose, in effect, a nationwide ban the TEC-DC9 through one state's tort law. See Oliver, supra note 5, at 21 (discussing the District of Columbia ordinance).
7. See infra Part III.
8. One Maryland case that held manufacturers liable was subsequently rendered moot by legislation. See Kelley v. R.G. Indus., 497 A.2d 1143 (Md. 1985).
9. Cal. Civ. Code § 1714.4 (Deering 1996). Section 1714.4 provides generally that firearms are not defective in design because of failure to pass a risk/benefit test, that the potential for a firearm to cause injury when discharged is not a design defect, and that the proximate cause of injuries resulting from discharge of a firearm is the user's act of pulling the trigger. The full text reads:
(a) In a products liability action, no firearm or ammunition shall be deemed defective in design on the basis that the benefits of the product do not outweigh the risk of injury posed by its potential to cause serious injury, damage, or death when discharged.
(b) For purposes of this section:
(1) The potential of a firearm or ammunition to cause serious injury, damage, or death when discharged does not make the product defective in design.
(2) Injuries of damages resulting from the discharge of a firearm or ammunition are not proximately caused by its potential to cause serious injury, damage, or death, but are proximately caused by the actual discharge of the product.
(c) This section shall not affect a products liability cause of action based upon the improper selection of design alternatives.
(d) This section is declaratory of existing law.
10. See In re 101 California Street, No. 959316 (Cal. Super. Ct. filed Apr. 10, 1995) [hereinafter 101 California Street]. Navegar sought to have the case dismissed for failure to state a cause of action. The court's decision overruled Navegar's demurrers, thus allowing the case to proceed. Suits were also brought against USA Magazines, which manufactured the 32-round magazine used by Ferri in the TEC-DC9s; the Nevada pawn shop where Ferri purchased one of the TEC-DC9s; and Hell-Fire Trigger Systems, Inc., manufacturer of a trigger activator designed to allow more rapid operation of the firearm. Hell-Fire was removed from the case due to subsequent bankruptcy. See California Judge Allows Lawsuit Against Gun Manufacturer, LIABILITY W, available in WESTLAW Apr. 17, 1995. WL 8596530. The demurrers of USA Magazines were sustained, and the pawn shop was reported to have settled its claims with the plaintiffs. See Harriet Chiang, Judge Drops Part of Gun Suit: Ammunition Clip Maker Not Tied to Law Firm Massacre, S.F. CHRON., Mar. 12, 1996, at A11.
11. See 101 California Street at *2.
12. CAL. PENAL CODE §§ 12275-12290 (Deering 1996). The AWCA bans the manufacture, sale, or advertising of assault weapons, including specifically the "Intratec TEC-9," by name, but not mentioning Navegar's TEC-DC9. The law imposes criminal penalties on persons who manufacture, sell, advertise, or possess the Intratec TEC-9 and other specifically designated assault weapons in California.
13. See Susan Sward, Gunman Slays 8 in Highrise, S.F. CHRON., July 2, 1993, at A1.
14. Note that Ferri fired one round every five seconds. At that rate of fire, he could have used any firearm to carry out his crime. Thus, the self-loading (semi-automatic) characteristic of the firearms was irrelevant to the damage resulting from Ferri's crimes.
15. See Susan Sward, Probe Finds 911 Delay Didn't Cost Any Lives: Office Gunman Ended Attack Within 4 Minutes, S.F. CHRON., July 10, 1993, at A1.
16. See 101 California Street.
17. Id. at *6, 8.
18. Id. at *4. The court is apparently unaware that the AWCA does not prohibit continued use and possession of hundreds of thousands of existing firearms designated as assault weapons provided they are registered with the California Department of Justice. CAL. PENAL CODE §§ 12285-12286 (Deering 1996).
19. See Casillas v. Auto-Ordnance Corp., No. 1996 (N.D. Cal. 1996).
20. 101 California Street at *4.
21. 1989 Cal. Stat. ch. 19, § 5.
22. CAL. PENAL CODE § 12775.5 (Deering 1996).
23. The Assault Rifle Smokescreen, NEW YORK POST, July 18, 1991, at 30.
24. This is consistent with accepted terminology. See generally DEFENSE INTELLIGENCE AGENCY, SMALL ARMS IDENTIFICATION AND OPERATION GUIDE 105 (1988).
25. Hearings to Consider S. 386, the Assault Weapon Control Act of 1989, and Similar S. 747 the Antidrug, Assault Weapons Limitation Act of 1989 Before the Subcomm. on the Constitution of the Senate Judiciary Comm., 101st Cong. (Feb. 10, 1989) (Attachment 1 to the statement of Edward D. Conroy, Deputy Associate Director, BATF). In his prepared testimony, Mr. Conroy stated: "The AKS is a semi-automatic that, except for its deadly military appearance, is no different from other semi-automatic rifles. As a matter of fact, the identical firearm with a sport stock is available and, in appearance, no different than other so-called sporting weapons" (emphasis added). Accepted firearms terminology includes the term "assault rifle" but not "assault weapon." GARY KLECK, POINT BLANK: GUNS AND VIOLENCE IN AMERICA 70-74 (1991).
26. California law enforcement authorities knowledgeable about firearms had reached independently the conclusion that a definition based on looks or style would be impossible. See Memorandum from S.C. Helsley, Acting Assistant Director, Investigation and Enforcement Branch, California Department of Justice, to G.W. Clemons, Director, Division of Law Enforcement, California Department of Justice (Oct. 31, 1988) (on file with author).
27. See, e.g., JOSH SUGARMAN, ASSAULT WEAPONS AND ACCESSORIES IN AMERICA, (The Educational Fund to End Handgun Violence & New Right Watch, Washington, D.C.) Sept. 1988, at 26. See generally GARY KLECK, supra note 25, at 68.
28. Memorandum from S.C. Helsley, Acting Assistant Director, Investigation and Enforcement Branch, California Department of Justice, to Allen Sumner, Senior Assistant Attorney General, California Department of Justice (June 2, 1987) (stating that 2.3% of firearms submitted to Bureau of Forensic Services labs in connection with serious crimes from July 1986 to May 1987 were assault rifles) (on file with author).
29. See SUGARMAN, supra note 27, at 26 (emphasis in original).
30. See Letter from Helsley to Clemons, supra note 26, at 2.
31. Id. at 3.
32. Id. at 3.
33. See Memorandum from Robert W. Drake, Chief, Bureau of Justice Information Services, California Department of Justice, to Carolyn McIntyre, Supervising Special Agent, Legislative Unit, California Department of Justice 1 (Jan. 10, 1989) (on file with author).
34. See id. at 2.
35. See Memorandum from S.C. Helsley, Acting Assistant Director, Investigation and Enforcement Branch, California Department of Justice, to Patrick Kenady, Assistant Attorney General, California Department of Justice 1 (Feb. 14, 1991) (on file with author).
36. See Mark A. Stein & Peter H. King, Rifleman Kills 5 at Stockton School; 29 Other Pupils Hurt; Assailant Takes Own Life, L.A. TIMES, Jan. 18, 1989, at 1.
37. Memorandum from S.C. Helsley, Assistant Director, Investigation and Enforcement Branch, California Department of Justice, to G.W. Clemons, Director, Division of Law Enforcement, California Department of Justice 1 (Feb. 13, 1991) (on file with author).
38. Memorandum from Helsley to Kenady, supra note 35, at 2.
39. See Memorandum from Helsley to Clemons, supra note 37, at 2.
40. See id. at 3.
41. See TORREY D. JOHNSON, REPORT ON A SURVEY OF THE USE OF "ASSAULT WEAPONS" IN CALIFORNIA IN 1990, at 8 (Draft, 1991). This draft report, written by Torrey D. Johnson, Program Manager, California Criminalistics Institute, was initially suppressed by the Attorney General's office but was released on April 24, 1992, through the efforts of state Senator Robert Presley. The Johnson Report concludes that the "incidence of the use of 'assault weapons' is very much lower than is represented in the media and in political statements." Id. at 8.
42. See Scott Baltic, Bang Bang! You're Wrong!, COLUM. JOURNALISM REV., Feb. 1994, at 11 (criticizing the media for gross inaccuracy in the assault weapon debate); Wound Ballistics Expert Exposes Media AK Fakery, GUN WK., May 5, 1989, at 1 (describing phony footage of AK-47 assault rifles staged for television news program); see generally Joseph Tartaro, The Great Assault Weapons Hoax, 20 U. DAYTON L. REV. 619 (1995).
43. See David Freed, Assault Rifles Are Not Heavily Used in Crimes, L.A. TIMES, May 20, 1992, at A18; see generally David Kopel, Rational Basis Analysis of "Assault Weapon" Prohibition, 20 J. CONTEMP. L. 381, 406-10 (1994) (reviewing data from numerous jurisdictions); Eric C. Morgan, Assault Rifle Legislation: Unwise and Unconstitutional, 17 AM. J. CRIM. L. 143, 151-52 (1990); Gary Kleck, Assault Weapons Aren't the Problem, N.Y. TIMES, Sept. 1, 1992, at A1 (assault weapons are used in less than one-half of one percent of violent crimes); What Is An Assault Weapon?, WALL ST. J., Aug. 25, 1994, at A12 (0.14% of violent crimes in Florida and 0.026% in New Jersey involve assault weapons).
44. In late 1988, the following generic definition sponsored by the Los Angeles County Sheriff's Office was given widespread review: "Any rifle or carbine originally designed for military use, and capable of fully automatic fire; this definition includes any commercial copy of such rifle or carbine manufactured for semi-automatic fire, but capable of modification which would permit fully automatic fire." See Memorandum from Allen Sumner, Senior Assistant Attorney General, California Department of Justice, to S.C. Helsley, Bureau of Forensic Services, California Department of Justice, Attachment 1 (Nov. 4, 1988) (on file with author).
The generic approach raised obvious due process notice concerns and was soon abandoned. See "Speed" Memo from Allen Sumner, Senior Assistant Attorney General, California Department of Justice, to John Van de Kamp, California Department of Justice (Feb. 8, 1989) (on file with author); "Speed" Memo from Allen Sumner, Senior Assistant Attorney General, California Department of Justice, to John Van de Kamp (Feb. 14, 1989) (on file with author).
45. See "Speed" Memos from Sumner to Van de Kamp, supra note 44.
46. See Memorandum from Helsley to Kenady, supra note 35, at 3-4.
47. For example, the Sheriff of Monterey County wrote to the California Division of Law Enforcement expressing his view that firearms are neutral tools and suggesting that the law focus instead on the people who misuse them. He recommends that "[r]ather than create a new class of offender, write specific new sections of law or sentence enhancements for use against the people that are using these weapons for unlawful acts. It is not the simple POSSESSION of these weapons that needs to be regulated." Letter from D.B. Cook, Sheriff, Monterey County, to G.W. Clemons, Director, Division of Law Enforcement, California Department of Justice at 2 (emphasis in original) (Dec. 21, 1998) (on file with author); see also "Speed" Memo from Sumner to Van de Kamp (Feb. 8, 1989), supra note 44, at 1; "Speed" Memo from Sumner to Van de Kamp (Feb. 14, 1989), supra note 44 (containing comments regarding opposition of northern sheriffs, the Peace Officers Research Association of California, and many legislators to the proposed regulation).
48. Memorandum from Allen Sumner, Senior Assistant Attorney General, California Department of Justice, to California Department of Justice Assault Weapons Task Force 1-2 (Mar. 17, 1989) (on file with author).
49. See id. at 1.
50. See George Lucas, Legislature Oks Ban on Assault Guns, S.F. CHRON., May 19, 1989, at A1.
51. Capistrano Union High Sch. Dist. v. Capistrano Beach Acreage Co., 10 Cal. Rptr. 750, 754 (1961) (stating that when a statute enumerates matters upon which it is to operate, it is to be construed as excluding from its effect all those not expressly mentioned).
52. Connally v. General Constr. Co., 269 U.S. 385 (1925) (due process requires clear notice of the conduct which subjects an actor to penal liability).
53. Letter from Thomas R. Heuer, Deputy Legislative Counsel of California, to Hon. Richard L. Mountjoy, Member of California State Assembly 4-5 (May 31, 1989) (on file with author).
54. Id. at 5.
55. Id. at 5. Purdy used a Chinese-made Norinco model 56S.
56. Memorandum from S.C. Helsley, Acting Assistant Director, Investigation and Enforcement Branch, California Department of Justice, to Randy Rossi, Chief, BOCCI (July 29, 1991).
57. See People v. Dingman, 55 Cal. Rptr. 2d 211 (Cal. Ct. App. 1996), review ordered Oct. 2, 1996.
58. See JOHNSON, supra note 41, at 8.
59. See generally Kopel, supra note 43.
60. Id. at 406-10 (examining police statistics and other official government statistical surveys of the use of firearms labeled as assault weapons in crime and of seizures of such firearms by law enforcement agencies). In 1992, while supporting a New York City ban on assault weapons (defined extremely broadly), Police Commissioner Lee Brown was forced to admit that there had never been a crime in the City committed with a legally-possessed rifle or shotgun covered by the proposal. See Ken Moran, Dinkins Assaults Hunters with Bill, N. Y. POST, July 29, 1991, at 46. In fact, an official of Handgun Control, Inc. testified before Congress that assault weapons play a small role in violent crime. See KLECK, supra note 25, at 73 (quoting testimony of Philip McGuire of Handgun Control, Inc.).
61. See JOHNSON, supra note 41, at 2.
62. See U.S. DEP'T OF JUSTICE, UNIFORM CRIME REPORTS, LAW ENFORCEMENT OFFICERS KILLED AND ASSAULTED (1991) and (1992). In these two years, only twenty-three of 121 deaths involved rifles of any type, and at most five of the incidents involved assault rifles. During the same time period, twelve officers were slain with their own firearms.
63. See David Morris, Assault Weapons Law Misfires: State Legislation Riddled With Problems, May Be Unenforceable, L.A. DAILY NEWS, Mar. 14, 1993, at N17.
64. See Col. Martin Fackler, Straight Shooting on Assault Rifles WALL ST. J., Apr. 10, 1989, at A15; Martin L. Fackler et al., Wounding Effects of the AK-47 Rifle Used by Patrick Purdy in the Stockton Schoolyard Shooting of 17 Jan. 1989, 11 AM. J. FORENSIC MED. & PATHOLOGY 185 (1990).
65. CAL. PENAL CODE § 12775.5 (Deering 1996).
66. See U.S. DEP'T OF DEFENSE, DEFENSE INTELLIGENCE AGENCY, SMALL ARMS IDENTIFICATION AND OPERATION GUIDE - EURASUAN COMMUNIST COUNTRIES 105 (defining assault rifles as battlefield weapons which can fire automatically); see also Kopel, supra note 43, at 383. Civilian sales of newly produced fully automatic (Class III) firearms were prohibited in 1986 under the Firearms Owners Protection Act, Pub. L. No. 99-308, 100 Stat. 449 (1986) (codified at 18 U.S.C. 922(o) (1994)). Although possession and transfer of the existing stock of Class III firearms is legal, the record of felonious use (more accurately described as non-use) of legally possessed automatic firearms presents a dramatic demonstration of the irrationality of recent firearms legislation. Civilian possession of such firearms has been regulated under the 1934 Firearms Act, and requires payment of a $200 transfer tax, a criminal background and FBI fingerprint check, and stringent BATF and state record keeping and notice requirements. Not surprisingly, the class of persons willing to submit to such draconian requirements to purchase, transfer, or otherwise legally posses in public such a firearm does not include known or would-be felons. Predictably, over the last fifty years, no civilian has ever used a legally owned machine gun in a violent crime. See MORGAN O. REYNOLDS & W.W. CARUTH, CENTER FOR TEXAS STUDIES, NATIONAL CENTER FOR POLICY ANALYSIS POLICY REPORT, MYTHS ABOUT GUN CONTROL 176 (1992). Kleck reports that the former director of the BATF testified that he knew of fewer than ten crimes of any kind (including regulatory violations) involving registered Class III (fully automatic) firearms. See KLECK, supra note 25, at 68.
67. During competition, one of the authors regularly outfires semi-automatic shotguns with his manual pump-action shotgun.
68. Anyone old enough to remember the "Rifleman" television show of the late 1950s and early 1960s can attest to the rapidity with which a lever-action firearm can be discharged.
69. See Kopel, supra note 43, at 390-99.
70. Any firearm with a detachable magazine, such as the Colt Model 1911 or the Smith & Wesson Model 5904¾both favorites of California police officers and not on the AWCA list¾can be rapidly reloaded. Reloading speed is a characteristic of the user's willingness to practice, not an inherent characteristic of the firearm.
71. Magazines insert into a well in the base of the firearm's frame. The length of the magazine (i.e., its capacity) is not limited by the firearm but by convenience or concealment concerns, because an excessively long magazine is unwieldy.
72. See 101 California Street at *7.
73. If firepower were a valid criterion, the AWCA list would still be irrational. Consider that the Intratec TEC-9 with a 32-round magazine discharges 32 projectiles with a .357-inch diameter while a 12-gauge shotgun with a 7-round magazine tube discharges 84 projectiles with a .32-inch diameter¾over twice as many.
74. Some have suggested that other firearms designated as assault weapons, such as the AK-47 look-alike used by Patrick Purdy or the Colt AR-15 (the civilian semi-automatic version of the U.S. Army's M-16), fire high-power or high-velocity bullets that are unusually destructive and lethal. However, as wound ballistics experts have noted, these modern battlefield rifles are designed to wound rather than kill. This observation has been empirically verified in ballistics tests and by experiences with battlefield casualties. See Martin L. Fackler, Getting Your Guns Straight, WASH. POST, Apr. 23, 1993, at A25. In fact, a switch from an "assault rifle" to a shotgun will increase the mortality rate. See generally Fackler et al., supra note 64.
75. See 101 California Street at *7.
76. Indeed, Ferri used a 30-round magazine in the third firearm he carried: a non-assault weapon, .45 caliber semi-automatic pistol. See Robert B. Gunnison and Susan Sward, Highrise Killer Used Mushrooming Bullets in Attack, S.F. CHRON., July 13, 1993, at A17. The AWCA does not ban high-capacity magazines or otherwise limit magazine capacity. The production and sale of new magazines and other ammunition feeding devices with a capacity of greater than ten rounds were banned for ten years under the Feinstein Amendment (18 U.S.C. § 922(v) (1994)). But possession, transfer, and sale of the pre-existing stock of well over 100 million units remain legal.
77. Since persons or objects downrange (whether crime victims or paper targets) are only impacted by the projectile, they should be indifferent to the delivery system.
78. One industry spokesman has referred to the thinking behind the assault weapon ban as "industrial racism." See William Flannery, Focus on Assault Weapons Misses Mark, Experts Say, ST. LOUIS POST DISPATCH, Dec. 13, 1993, at 12.
79. See DAVID B. KOPEL, GUNS: WHO SHOULD HAVE THEM 176-78 (1995). The 1989 version of the California gun list included non-existent rifles (the "CETMEG3"), pistols (the "Calico M-900"), and shotguns (the "Gilbert Equipment Co. Striker 12"), as well as a single-shot rifle (the Encom CM-55) that had the misfortune of looking evil and semi-automatic. In fact, it was neither. See CAL. PENAL CODE § 12276 (Deering 1996).
80. See 18 U.S.C. 921(a)(30) (1994). The same is true of the Feinstein Amendment. See What Is an Assault Weapon?, supra note 43.
81. Memorandum from Helsley to Kenady, supra note 35, at 4 (emphasis in original).
82. 18 U.S.C. § 921(a)(30).
83. Letter from John W. McGraw, Director, Bureau of Alcohol, Tobacco and Firearms, to U.S. Senator Larry E. Craig (Apr. 1, 1994) (on file with author).
84. In Dingman, the Santa Clara County District Attorney convinced the local Superior Court that Dingman's SKS model 56 was covered by the AWCA even though it was not in the Attorney General's Assault Weapon Identification Guide, not on the Attorney General's list of assault weapons published in the California Code of Regulations, and the Attorney General's consistent position that the SKS model 56 is not an assault weapon and not registerable pursuant to the AWCA. People v. Dingman, 55 Cal. Rptr. 2d 211 (Cal. Ct. App. 1996), review ordered Oct. 2, 1996. The implications of Dingman, which could result in inconsistent application of the AWCA from county to county, are so devastating that the Attorney General, on its own motion, solicited the California Supreme Court to review the Court of Appeals decision. Letter from M. David Stirling, Chief Deputy Attorney General, California Department of Justice, to Ronald M. George, Chief Justice, California Supreme Court (Sept. 16, 1996) (on file with author). The California Supreme Court ordered review on October 2, 1996.
85. CAL. PENAL CODE § 12276(e) (Deering 1996). A Court of Appeals has determined that this definition, added in 1991, is only relevant in a § 12276.5 proceeding brought by the Attorney General to have a firearm declared an "assault weapon." Herriot v. City of Kings, 54 Cal. Rptr. 145, 148 (1996), review granted Sept. 25, 1996. The same limitation should apply to the identical language in § 12276(f) because it was added in the same 1991 legislation.
86. State v. Merrill Ind., No. 95-02-260-I (N.J. Super. Ct. filed Feb. 26, 1996) ("substantially identical").
87. Robertson v. City and County of Denver, 874 P.2d 325, 327 n.5, 335 (Colo. 1994) (remanded with respect to application of the phrases "redesigned from, renamed, and renumbered or patterned after" and "same action design" or "originally designed to").
88. Peoples' Rights Org. v. City of Columbus, 925 F.Supp. 1254 (E.D. Ohio 1996) ("modifications," "originally designed," "accepts a detachable magazine with a capacity of 20 rounds or more"); Springfield Armory, Inc. v. City of Columbus, 29 F.3d 250 (6th Cir.1994) ("slight modifications or enhancements").
89. Morris, supra note 63.
90. See id.
91. The AWCA restricts the § 12276 list to those firearms precisely designated, and allows an adversarial due process proceeding to resolve any vagueness or ambiguity before a new version is designated as an assault weapon under the act. If and only if the firearm at issue is (1) specifically designated in § 12276(a) or (2) the Attorney General has followed the procedure in § 12276.5(a)-(f) (a court determination, after an adversary hearing, that a particular firearm version is within the AWCA definition of "assault weapon") and thereafter included that firearm in the list published in the California Code of Regulations pursuant to § 12276.5(h), may the firearm be classified as an "assault weapon" for purposes of the AWCA. The Attorney General has exclusive authority to bring actions augmenting the AWCA's specific list of prohibited firearms. To date, the Attorney General has not successfully used the declaration process to designate any new firearm (such as the Navegar TEC-DC9) as subject to the AWCA, and the Attorney General's identification booklet, promulgated in April 1993, contains only the specific firearms designated in the AWCA list. Appropriately, it lists the TEC-9, but not the new TEC-DC9, as subject to the AWCA. See generally CALIFORNIA ATTORNEY GEN., ASSAULT WEAPONS IDENTIFICATION GUIDE (1993).
92. Because the TEC-DC9 does not appear in the California Attorney General's Assault Weapons Identification Guide, it is readily available through normal retail channels in California. See supra note 91.
93. See Dianne Feinstein, Selling Death Over the Counter in Nevada, LAS VEGAS REV. J., July 30, 1993, at 11B. Thus, Judge Warren's claim that "the California Legislature banned the TEC-DC9" is not technically correct. See 101 California Street at *4.
94. 497 A.2d 1143 (Md. 1985).
95. See, e.g., Donna Morel, Note, Bang! Bang! You're Liable! The Imposition of Strict Liability on the Makers of Semi-Automatic Assault Weapons, 3 SAN DIEGO JUST. J. 263, 267-73 (1995); Safarian, supra note 4; Garrett Sanderson III, Common Law Strict Liability Against the Manufacturers and Sellers of Saturday Night Specials: Circumventing California Civil Code Section § 1714.4, 27 SANTA CLARA L. REV. 607, 610-16 (1987); see also Carl T. Bogus, Pistols, Politics and Products Liability, 59 U. CIN. L. REV 1103 (1991); Paul R. Bonney, Manufacturer's Strict Liability for Handgun Injuries: An Economic Analysis, 73 GEO. L.J. 1437 (1985); Ronald R. Ratton, Corrective Justice and the D.C. Assault Weapon Liability Act, 19 J. LEGIS. 287 (1993); Windle Turley, Manufacturers' and Suppliers' Liability to Handgun Victims, 10 N. KY. L. REV. 41 (1982).
96. This point is conceded by those who normatively support liability for firearms manufacturers. See, e.g., Sanderson, supra note 95, at 611-16. In general, many commentators have rejected the idea of liability for well-made firearms. See generally Bruce H. Kobayashi, Strict Liability, Gun Control, and Sin Taxes, in TAXING LIBERTY: PREDATORY POLITICS AND TAXATION (William Shughart II ed., 1996); James A. Henderson, Jr. & Aaron D. Twerski, Closing the American Products Liability Frontier: The Rejection of Liability Without Defect, 66 N.Y.U. L. REV. 1263 (1991); David B. Kopel & Richard E. Gardiner, The Sullivan Principles: Protecting the Second Amendment from Civil Abuse, 19 SETON HALL LEG. J. 737 (1995); Oliver, supra note 5; Donald E. Santarelli & Nicholas E. Calio, Turning the Gun on Tort Law: Aiming at Courts to Take Products Liability to the Limit, 14 ST. MARY'S L.J. 471 (1983); Note, Handguns and Products Liability, 97 HARV. L. REV. 1912 (1984); Jane Bridgewater, Note, Legal Limits of a Handgun Manufacturer's Liability for the Criminal Acts of Third Persons, 49 MO.L.REV. 830 (1984).
97. See McCarthy v. Sturm, Ruger & Co., 916 F.Supp. 366 (S.D.N.Y. 1996) (rejecting claims based on theories of strict liability as well as negligent manufacturing and marketing); see also Forni v. Ferguson, No. 132994/94, (N.Y. Sup. Ct. filed Aug. 2, 1995); Pekarski v. Donovan, No 95-1176 (N.Y. Sup. Ct. filed Sept. 27, 1995).
98. RESTATEMENT (SECOND) OF TORTS §§ 519-520 (1966). Section 519 states that "one who carries on an abnormally dangerous or ultrahazardous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm." Section 520 sets out six factors to be considered in determining whether an activity is abnormally dangerous. The six factors are: "(a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results form it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes."
99. RESTATEMENT (SECOND) OF TORTS § 402A (1965) states that "one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product; and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold." Section 402A applies even if the seller has exercised great care and there is no contractual privity between the seller and user or consumer. Id. § 402A(2)(b).
100. See Barker v. Lull Eng'g Co., 573 P.2d 443 (Cal. 1978).
101. See Martin v. Harrington & Richardson, Inc., 743 F.2d 1201, 1204 (7th Cir.1984) (application of abnormally dangerous activities doctrine is warranted when such activity is a result of the use, as opposed to the sale and manufacture, of the product); Richman v. Charter Arms Corp., 571 F.Supp. 192 (E.D. La 1983), rev'd sub nom. Perkins v. F.I.E. Corp., 762 F.2d 1250 (5th Cir.1985) (overruling Richman and refusing to apply § 520 to the manufacture of handguns); see also Delahanty v. Hinckley, 564 A.2d 758, 760 (D.C. 1989); Kelley v. R.G. Indus., 497 A.2d 1143, 1147 (Md. 1985).
102. See RESTATEMENT (SECOND) OF TORTS § 519 cmt (d).
103. In McCarthy, the court states, "[t]o impose a duty on [a manufacturer] to prevent criminal misuse of its products would make it an insurer against such occurrences. Such liability exposure would be limitless and thus to impose a duty here would be inappropriate." McCarthy v. Sturm, Ruger and Co., 916 F.Supp. 366, 369 (S.D.N.Y. 1996). See also Martin, 743 F.2d at 1204; see generally De Rosa v. Remington Arms Co., 509 F.Supp. 762 (E.D.N.Y. 1981); Robinson v. Howard Bros. of Jackson, 372 So.2d 1074 (Miss. 1979); Henderson & Twerski, supra note 96, at 1322.
104. See 101 California Street at *4.
105. RESTATEMENT (SECOND) OF TORTS § 402A cmt. (i) spells out what is commonly known as the "consumer expectations test" and defines "defective" as that which is not contemplated by the ultimate consumer.
106. See Mavilia v. Stoeger Indus., 574 F.Supp. 107, 110 (D.Mass. 1983) ("Common sense requires the Court to find that the risks involved in marketing handguns for sale to the general public are not greater than reasonable consumers expect. Every reasonable consumer that purchases a handgun doubtless knows that the product can be used as a murder weapon.") (quoting from Richman v. Charter Arms Corp., 571 F.Supp. 192, 197 (E.D. La. 1983)); Delahanty, 564 A.2d at 760; Riordan v. Int'l Armament Corp., 477 N.E.2d 1293, 1295 (Ill. App. Ct. 1985) ("No common law duty exists upon the manufacturer of a nondefective handgun to control the distribution of that product to the general public.").
107. McCarthy, 916 F.Supp. at 370.
108. Kelley, 497 A.2d at 1148.
109. Barker v. Lull Eng'g Co., 573 P.2d 443, 443 (Cal. 1978). But cf. Richard A. Epstein, Products Liability: The Search for the Middle Ground, 56 N.C. L. REV. 643, 650-53 (1978).
110. See Kelley, 497 A.2d at 1149 (holding that the product must malfunction before risk/utility test is applied); Patterson v. Rohm Gesellschaft, 608 F.Supp. 1206 (N.D. Tex. 1985) (rejecting application of risk/utility test): Davis v. Cline, No. 96-1082 (W. Va. filed Sept. 10, 1996) (refusing to review lower court's dismissal of "Saturday Night Special" manufacturer from wrongful death lawsuit).
111. See McCarthy, 916 F.Supp. at 371; Barker, 573 P.2d at 454; see generally Henderson & Twerski, supra note 96, at 1317.
112. 497 A.2d 1143 (Md. 1985). The plaintiffs originally filed suit in the Circuit Court for Montgomery County, Maryland. The suit was removed on diversity grounds to the United States District Court for the District of Maryland. The district court, finding no controlling state law precedent, certified certain questions on strict liability to the Maryland Court of Appeals, the state's highest court. For a detailed discussion of the case, see Susan M. Stevens, Note, Kelley v. R.G. Industries: When Hard Cases Make Good Law, 46 MD.L.REV. 486 (1987).
113. See Kelley, 497 A.2d at 1145.
114. Product-category liability refers to the imposition of liability on entire categories of non-defective goods on the basis of some risk/utility comparison of characteristics common to all goods in the selected category. See Henderson & Twerski, supra note 96, at 1297-1300 (stating that some other commentators refer to this approach as "risk-utility balancing," but that such term inadequately describes the process in this context). Henderson and Twerski also set out a complete critique of product-category approach demonstrating its invalidity. See id. at 1309-14.
115. See Kelley, 497 A.2d at 1159.
116. Id. at 1154-57.
117. The court based its expansion of the common law on the principle that "the common law is not static; its life and heart is its dynamism¾its ability to keep pace with the world while constantly searching for just and fair solutions to pressing societal problems. The common law is, therefore, subject to judicial modification in light of modern circumstances or increased knowledge." Kelley, 479 A.2d at 1150-51.
118. In Mavilia, the District Court refused to "rush in," noting:
The legislature has on numerous occasions in the past ten years considered banning handguns and has consistently rejected the proposals. It has enacted comprehensive licensing provisions for suppliers and purchasers, indicating its disinclination toward banning handguns. It has also enacted a provision banning a variety of different weapons and has recently amended this list, but has not seen fit to include handguns. Thus, the clear inference is that the majority of legislators in Massachusetts also do not feel that the marketing of handguns to the public is an unreasonably dangerous activity or socially unacceptable.
Mavilia v. Stoeger Indus., 574 F.Supp. 107, 111 (D.Mass. 1983) (citations omitted). This position continues to carry the day. Recently, a West Virginia circuit judge stated the point bluntly in a Saturday Night Special case: "[the plaintiff is] asking the court to judicially mandate gun control. That is an issue for the Legislature." Jennifer Bundy, Court Refuses to Hold Gun Makers Liable, CHARLESTON GAZETTE (W.Va.), Sept. 11, 1996, at 1C.
119. See Oliver, supra note 5, at 11.
120. Assuming, unrealistically, that each crime committed with a firearm is committed with a different gun, the comparison is one million annual illegal uses compared to 250 million available firearms, or about 0.4%. As English criminologist Colin Greenwood points out, "in any society, the number of guns always suffices to arm the few who want to obtain and use them illegally." Don B. Kates, Firearms and Violence: Old Promises and Current Evidence, in 1 VIOLENCE IN AMERICA 201 (T. Gurr ed., 1989) (quoting Colin Greenwood).
121. See Daniel D. Polsby, The False Promise of Gun Control, ATLANTIC MONTHLY, Mar. 1994, at 57, 59.
122. See generally JAMES D. WRIGHT & PETER H. ROSSI, ARMED AND CONSIDERED DANGEROUS: A SURVEY OF FELONS AND THEIR FIREARMS 202-04 (1986) (discussing the integrated black market in guns and drugs).
123. For this purpose, a $20 rusty clunker is as good as a $2000 custom firearm. A $12,000 custom over-under shotgun and a hacksaw quickly yields a weapon concealable under a coat, and now entirely suitable for criminal purposes.
124. See Daniel J. Bordua & Alan J. Lizotte, Patterns of Legal Firearms Ownership, 1 LAW & POL'Y Q. 147, 159-72 (1979); Gary Kleck & E. Brett Patterson, The Impact of Gun Control and Gun Ownership Levels on Violence Rates, 9 J. QUANTITATIVE CRIMINOLOGY 249, 272 (1993).
125. See Gary Kleck & Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun, 86 J. CRIM. L. & CRIMINOLOGY 150, 184 tbl. 2 (1995) (showing that annually, 2,549,862 guns are used successfully for defensive purposes; 1,893,070 of these are handguns).
126. See Department of Justice Says Handguns Used in More than 1 Million Violent Crimes in U.S., U.S. NEWSWIRE, July 10, 1995; Michael R. Rand, Guns and Crime: Handgun Victimization, Firearm Self-Defense, and Firearm Theft (April 1994) <http://www.ojp.usdoj.gov/pub/bjs/ascii/hvfsdaft.txt>. Once again we assume, conservatively and unrealistically, that each gun crime is committed by a different actor with a different gun, overstating the number of firearms used in crime. Since a small fraction of criminals commit the majority of serious crimes, the overstatement is quite substantial. See generally JAN M. CHAIKEN & MARCIA R. CHAIKEN, VARIETIES OF CRIMINAL BEHAVIOR (1982) (determining that a small percentage of criminals were responsible for most crimes, based on a survey or prison inmates in California, Michigan, and Texas); see also Don B. Kates, Guns & Public Health: Epidemic of Violence or Pandemic of Propaganda, 62 TENN.L.REV. 513, 588 n.331 (1995).
127. See John R. Lott, Jr. & David B. Mustard, Crime, Deterrence, and Right-to-Carry Concealed Handguns, 26 J. LEGAL STUD. 1 (forthcoming 1997)
128. Id. The $6.2 billion figure is in 1992 dollars; the savings today is even greater.
129. See WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW 301 (1987); see also Kobayashi, supra note 96.
130. Kelley v. R.G. Indus. 497 A.2d 1143, 1153 (Md. 1985).
131. See LANDES & POSNER, supra note 129, at 302.
132. Kelley, 497 A.2d at 1153-54.
133. Indeed, the Kelley court did not provide a clear definition of what constituted a "Saturday Night Special."
134. Kelley, 497 A.2d at 1153-54.
135. See U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, SELECTED FINDINGS: GUNS USED IN CRIME 2 (July 1995 ) (finding that guns used in crimes tend to be easily concealable, large caliber, and well-made . . . similar to [those] available to the general public); Bogus, supra note 95, at 1147 (noting the erroneous assumption of the Kelley Court and pointing out that, as a factual matter, most handguns used in crime are not Saturday Night Specials); KLECK, supra note 25, at 83-91 (noting that Saturday Night Specials, defined as small and cheap handguns, constitute 10 to 27% of all handguns used in crimes, and that the Saturday Night Special share of guns used in crimes does not appear to be larger than its share of the general civilian stock of handguns). Leading the top eighteen guns appearing in BATF traces are Colt, Ruger, and Smith & Wesson .38/37 caliber revolvers as well as Beretta, Colt, and Smith & Wesson 9mm and .45 caliber pistols. See The 'Six-shooter' Is Still No. 1, USA TODAY, June 3, 1992, at 4A. Several years ago the Chief of BATF's Regulatory Affairs Branch told an industry group "[t]he gun of choice of America's criminals is the first gun they can get their hands on." See Jim Schneider, ASSC Chief Gives Industry's View Of '96 Elections, GUN WK., Oct. 20, 1996, at 1. An experienced robbery-homicide detective from the Minneapolis Police Department told one of the authors "their tastes are pedestrian; if it's a gun, they'll use it."
136. See MARYLAND DEP'T OF STATE POLICE, HANDGUN ROSTER BOARD, OFFICIAL HANDGUN ROSTER, APPENDIX OF SPECIFICALLY DISAPPROVED HANDGUNS (Feb. 12, 1996) (on file with author).
137. See MD. ANN. CODE art. 27, § 36J(b)(2)(ix) (1996).
138. The slippery slope is real. In a recent California decision, the Superior Court applied a "functionally equivalent" analysis to add a new firearm model to the prohibited list of the AWCA. Heriott v. City of Kings, 54 Cal. Rptr. 145, 147 (1996) (reversing on basis that only: (1) firearms specifically named and identified by Cal. Penal Code § 12276(a) or (2) firearms specifically named in the official list prepared by the Attorney General pursuant to CAL. PENAL CODE § 12276.5(h) are assault weapons for purposes of the AWCA).
139. See generally Henderson & Twerski, supra note 96; see also Richard A. Epstein, Products Liability as an Insurance Market, 14 J. LEGAL STUD. 645 (1985).
140. See generally Kobayashi, supra note 96.
141. For an analysis of this effect, see Franklin E. Zimring, The Medium is the Message: Firearm Caliber as a Determinant of Death from Assault, 1 J. LEGAL STUD. 97, 107-08 (1972) (suggesting large increases in fatalities from gun assaults if attackers switch from below .38 caliber firearms to .38 caliber firearms); see also Gary Kleck & David J. Bordua, The Assumptions of Gun Control, in FIREARMS AND VIOLENCE: ISSUES OF PUBLIC POLICY 25 (Don B. Kates ed., 1984); Note, Absolute Liability for Ammunition Manufacturers, 108 HARV. L. REV. 1679, 1680 (1995).
142. See MD. ANN. CODE art. 3A, § 36-I(L) (1988 Supp).
143. See Moore v. R.G. Indus., 789 F.2d 1326, 1327-28 (9th Cir.1986) (citing CAL. CIV. CODE § 1714.4 and the absence of any "indication in California Law or public policy that the courts would distinguish Saturday Night Specials from other handguns or find them of so little utility that the risk of injury outweighs their beneficial use"); see also Casillas, 1996 ("In sum, California statutory authority and case law persuade the Court that the California Supreme Court would not allow a claim against a firearm manufacturer for damages caused by a third party's illegal use of a legal and nondefective firearm, whether under a product liability or a negligence theory"); Armijo v. ExCam, Inc. 656 F.Supp. 771, 775 (D.N.M. 1987); Caveny v. Raven Arms, 665 F.Supp. 530, 533-35 (S.D. Ohio 1987); Delahanty v. Hinckley, 564 A.2d 758, 762 (D.C. 1989); Richardson v. Holland 741 S.W.2d 751, 756-57 (S.D. Mo. 1987).
144. Section 1714.4 was enacted while two such suits were pending in California. See Sanderson, supra note 95, at 615.
145. See supra note 9 for the full text of CAL. CIVIL CODE § 1714.4.
146. CAL. CIVIL CODE § 1714.4(a) (Deering 1996).
147. CAL. CIVIL CODE § 1714.4(b)(1).
148. CAL. CIVIL CODE § 1714.4(b)(2).
149. See Oliver, supra note 5, at 11 (noting that considered inaction is strong evidence of legislative will); see also Casillas, 1996 ("Plaintiffs ask the court to provide through judicial fact what the California . . . legislature [has] refused to provide by law. This invitation to create new California law must be declined."); Mavilia v. Stoeger Indus., 574 F.Supp. 107, 111 (D.Mass. 1983).
150. See supra text accompanying notes 102-103.
151. See CAL. CIVIL CODE § 1714.4(d).
152. See 101 California Street at *8. For such an analysis, see Sanderson, supra note 95, at 628-29.
153. In addition, if the California legislature had intended to expose assault weapon manufacturers to strict liability, it could have done so explicitly. One jurisdiction, the District of Columbia, has done so. See D.C. CODE ANN. §§ 6-2391, 6-2392 (1981). That the California legislature did not do so represents a conscious choice by inaction that California courts should respect.
154. See 58 CAL. JUR. § 101 (1980) (a form of extrinsic aid to statutory construction).
155. See generally Commercial Fisheries Comm. v. Apokedak, 680 P.2d 486, 488 n.3 (Alaska 1984); PRB Enter. v. South Brunswick Planning Bd., 500 A.2d 732, 734-35 (N.J. Super. Ct. App. Div. 1985).
156. See MARYLAND STATE DEP'T OF POLICE, supra note 136.
157. See supra Part II.
158. Moore v. R.G. Indus., 789 F.2d 1326, 1327 (9th Cir.1986); see also Cal. Const. art 1, § 1, which provides for an inalienable right of "defending life."
159. The AWCA passed the lower chamber of the State Assembly by the barest margin in an atmosphere of constant horse trading. See Herbert A. Sample, Assault Weapon Ban Backed in Assembly Vote, SACRAMENTO BEE, April 18, 1989, at A1; Herbert A. Sample & Jon Matthews, Legislature Oks Limits on Assault Guns, SACRAMENTO BEE, May 19, 1989, at A1.
160. "But for" causation is established if the firearms manufacturer was a substantial factor in bringing about the harm. See Richard A. Epstein, A Theory of Strict Liability, 2 J. LEGAL STUD. 151, 162 (1973). But mere manufacture and sale of a properly functioning firearm cannot be a "substantial" factor for this purpose. Because all firearms would always be involved in the alleged injury, such a rule would render the test useless.
161. Id. Proximate cause limits liability to instances when the conduct foreseeably causes the plaintiff's injury. The standard is one of reasonable foreseeability and, as a matter of law, does not include criminal misuse by third parties who may acquire the product.
162. Absent malfunction, the discharge of the firearm is not an element of proximate cause. This was more clearly stated in AB75 as passed by the California Assembly. At that point, AB75:
1) Amended existing provision of the Civil Code to specify that no person, organization, or public or business entity may be held legally accountable for damages suffered as the result of furnishing (with or without consideration) a firearm or ammunition, except where:
a) There is a manufacturing or design defect which cases the firearm to malfunction;
b) There is a breach of a duty to warn related to a malfunction of the firearm of ammunition due to a manufacturing or design defect; or
c) The furnishing of a firearm or ammunition is prohibited by law.
Conf. Committee Report No. 018895, cited in Sanderson, supra note 95, at 627 n.138; see also Cal. Civ. Code § 1714.4(c) (preserving liability for harm caused by firearms that malfunction as a result of conscious design choices by the manufacturer).
163. See Casillas, 1996; McCarthy v. Sturm, Ruger and Co., 916 F.Supp. 366, 372 (S.D.N.Y. 1996); Delahanty v. Hinckley, 564 A.2d 758, 761 (D.C. 1989) ("When injury occurs, it is not the direct result of the sale itself, but rather the result of actions taken by a third-party."); Robinson v. Howard Bros. of Jackson, 372 So.2d 1074, 1076 (Miss. 1979). See OLIVER WENDELL HOLMES, Privilege, Malice, and Intent, in COLLECTED LEGAL PAPERS 117, 131-32 (1952) (criminal misuse by third party is supervening act relieving seller of any liability).
164. As of October 1996, thirty-one states, containing over half of the U.S. population, have enacted a "must issue" permit system under which competent, responsible citizens may carry concealed weapons. See generally Lott & Mustard, supra note 127.
165. Comparison of two incidents just two months apart illustrates just how valuable a "shall issue" handgun carry system can be. In October 1991, in Killeen, Texas, George Hennard rammed his vehicle through the front window of a Luby's Cafeteria and, using ordinary pistols, murdered twenty-three people in ten minutes. Among the patrons were Dr. Suzanna Gratia and her parents. In accordance with Texas law, Dr. Gratia's gun was in her car. Because of Texas law, she was forced to watch disarmed and defenseless as her parents and twenty-one others were killed¾even though she would have had several perfect shots at the assailant. See Clayton E. Cramer & David B. Kopel, "Shall Issue": The New Wave of Concealed Handgun Permit Laws, 62 TENN.L.REV. 679, 718-19 (1995). Two months later, in an incident suppressed by the media, twenty customers of a Shoney's Restaurant in Anniston, Alabama, were not killed by the two armed robbers who had ordered them at gunpoint into the walk-in freezer. Instead, neutralizing the threat to all, a citizen lawfully carrying a concealed firearm shot both criminals in self-defense. See id. Because Alabama has a "shall issue" permit law, twenty lives were saved.