Defective Firearms and Smart Firearms - Thoughts on Gun Control

Defective Firearms and Smart Firearms - Thoughts on Gun Control

Empire Law School Dean shares insights on current legal topics

In 1993, Luigi Ferri walked into 1001 California St., San Francisco and killed eight persons using an assault rifle with clips holding 32 rounds. In the aftermath, the Federal Assault weapon ban was passed and has since lapsed. In 2005, Congress passed the Protection of Lawful Commerce in Arms Act, which shields firearms manufacturers and dealers from civil liability in both federal and state courts. The act has survived constitutional attacks under the Commerce Clause, equal protection, the Tenth Amendment the First Amendment right to petition and separation of powers arguments as well as ex post factor theories; see Validity, Construction, and Application of Protection of Lawful Commerce in Arms Act( PLCAA)by Kristine Cordier Karnezis, J.D. 17 A.L.R. Fed. 2d 167. Despite its’ broad application, California plaintiffs attempted an evasion by arguing the nuisance statute was not affected, but the Federal District court reasoned if the nuisance statute was an exception, Congress’ stated intent to shield dealers and manufacturers from the independent acts of criminals would be thwarted; see Ileto v Glock 421 F. Supp. 2d 1274(C.D. Cal.2006). Any attempts to “control guns” appears futile, however, new technology may offer opportunities.

Everybody agrees criminals should not be allowed to obtain firearms. Ask any cop, and they will tell you most illegally possessed firearms are stolen. On the other hand, a recent article by Dan Noyes, Center for Investigative Reporting argues guns are obtained through ‘straw’ purchase sales or from Federal Firearm Licensees engaging in illegal activity. According to Alcohol, Tobacco and Firearms agent Jay Wachtel, only 15 to 10% of guns used in crimes are stolen. Many straw sales are obvious. Two people walk into a dealer’s office, one purchases the firearm legally, and another exchange is made after the ten day waiting. Finally, unscrupulous dealers flaunt the law by selling without regard to the buyer at gun shows or over the Internet. Does the ATF pursue these illegal sales? Yes, but there is an avenue which could be pursued if we decide a “defective “ firearm has been sold or stolen. What is a defective firearm? Any firearm which is sold without a “disabling mechanism”.

As of July 2015, all cell phones sold in California must come equipped with a mechanism which will “render essential features inoperable “; Business & Professions Code Section 22761. The legislature responded to law enforcement reports that robberies of cell phones has increased alarming, often resulting in serious injury or death to the victims. Solution, all cell phones now come equipped with a device to “render “them useless. Why not equip firearms with the same devices?

‘Smart’ firearms are here, but dealers will not sell them, according to numerous articles. Fear that the government will mandate only those guns may be sold has the National Rifle Association looking over its’ shoulder. A recent article in the Los Angeles Times by Melissa Healy describes a type of firearm which will only discharge if its user is wearing a wireless wristband sending a specific signal. There are other guns which require a biometric match before firing. In New Jersey, a statute was passed which does require only smart guns sold in New Jersey “30 months” after the weapon came to market, but if the dealers don’t stock the weapon, the law is not triggered (no pun intended). A Maryland gun dealer sought to stock smart weapons but found himself threatened and offers to burn down his store (Healy article).What if the California legislature defined “defective” firearm.

The PLCAA immunizes dealers and manufacturers but allows six exceptions for civil liability lawsuits, among the six, suits for breach of warranty or “design defect”. In California any firearm sold that does not have the capability of being “rendered incapable of firing “would be deemed defective. A signal could be built into the firearm which could be activated by the owner or the original dealer if the weapon was stolen or ATF notifies the dealer the firearm is no longer in the possession of the original owner. All sales would have to be reported to ATF, just like all car sales must be reported to the Department of Motor Vehicles! Secondary sales of firearms must be reported to ATF to preclude criminals from using straw sales. Government agents would not possess the code, only the original owner or the dealer, obviating the “threat” of government interference. Any use of a defective firearm resulting in injury or death could be traced to the manufacturer or dealer and result in civil liability. Again, remember, I am just “musing”.