Las Vegas Shooting Victims Sue Bump Stock Maker

GunsThe mass shooting at Las Vegas has rekindled a national gun control debate. While the Las Vegas shootings represent the worst mass murder in American history, there have been more than 300 multiple-victim shootings in the United States in 2017 alone.

The legislative response to those deaths has been nonexistent. While it seems unlikely that the current Congress will enact sweeping gun legislation, there has been some discussion of regulating bump stocks. Yet a month after 58 people died and 500 more were wounded by Stephen Paddock, the bump stocks that enabled him to shoot so rapidly are still legal.

Bump Stock Legislation

A “bump stock” is a stock that replaces the traditional stock (the part that a shooter holds against the shoulder) of a semi-automatic rifle. While traditional stocks are fixed in place, a bump stock is a device that allows the recoil after a shot is fired to move the gun backward and forward. By holding the trigger finger stationary, the recoil “bumps” the trigger against the finger, allowing the shooter to fire much more rapidly than the shooter could manage by pulling the trigger repeatedly.

A bump stock brings the firing rate of a semi-automatic rifle closer to the firing rate of a fully automatic weapon (commonly referred to as a machine gun). It is generally illegal for civilians to possess an automatic weapon. Bump stock modifications, however, are regarded as legal by law enforcement agencies and by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), the federal agency charged with gun regulation.

In the aftermath of the massacre, the National Rifle Association (NRA) signaled its willingness to allow ATF (but not Congress) to regulate bump stocks. However, ATF has taken no action, presumably adhering to its longstanding position that current laws do not empower ATF to regulate gun attachments. Since ATF has taken that position for years, the NRA’s deferral to ATF action might be seen as disingenuous.

Senator Diane Feinstein introduced a bill to prohibit the manufacture and sale of bump stock devices. Without Republican sponsorship, however, the Republican majority in the Senate has shown no inclination to take action of the bill.

A similar bill in the House was jointly sponsored by a Republican and a Democrat, but it has also gone nowhere. House Speaker Paul Ryan said he thought it would be faster for the ATF to regulate bump stocks but did not explain how the agency would acquire regulatory authority to do that.

Four House members (two from each party) have proposed legislation that would give ATF the authority to regulate devices like bump stocks. Administrative rulemaking, however, is a lengthy process. It would be simpler for Congress to pass a law prohibiting bump stocks, but the NRA opposes that legislation and Congress has shown no willingness to implement any gun regulation that the NRA does not endorse.

Bump Stock Lawsuits

Rather than waiting for elected representatives to act, lawyers representing gunshot victims in Las Vegas have filed lawsuits against Slide Fire Solutions, the Texas company that manufactured the bump stock. The lawsuits contend that Slide Fire directly contributed to the Las Vegas massacre by enabling the shooter to circumvent laws prohibiting the use of automatic weapons.

Lawsuits have also been filed against owners of the hotel from which Paddock fired his shots, as well as promoters of the country music concert that the victims were attending. Those lawsuits are premised on the argument that Mandalay Bay and the concert promoter should have foreseen the possibility of a sniper and should have implemented security measures to thwart such an attack. They also contend that Mandalay Bay should have noticed the 23 firearms Paddock brought to his room or the surveillance cameras he set up outside the room. Whether sufficient evidence will be discovered to support those theories is unclear.

However, lawyers are also pinning their hopes on the theory that bump stocks should be treated as a dangerous device under products liability law. Under the law of most states, products are unreasonably dangerous when the risk caused by the product’s use outweighs its value to society.

The victims’ lawyers will argue that the value of bump stocks to society is negligible. They allow semi-automatic weapons to emulate illegal automatic weapons. They are of no value to hunters or to civilians who need a weapon for self-protection. If society made a judgment that automatic weapons are too dangerous in the hands of civilians, how can a device that transforms a semi-automatic weapon into a virtual automatic weapon be any less dangerous?

Balancing utility against risk seems like an easy task, since risk can be measured by the 58 deaths and more than 500 injury victims in Las Vegas. The victims’ lawsuits again Slide Fire may nevertheless encounter roadblocks.

Protecting the Firearms Industry

Firearms manufacturers persuaded Congress to enact the Protection of Lawful Commerce in Arms Act in 2005. The Act shields gun manufacturers from liability arising out of the illegal use of legal firearms. The Act recently resulted in the dismissal of lawsuits against Remington by families of the twenty children who were murdered at the Sandy Hook Elementary School.

Those lawsuits alleged that Remington marketed assault rifles to “high-risk” young men by “linking the AR-15 to macho vigilantism and military-style insurrection.” Critics contend that assault rifles serve no purpose other than killing humans, yet Remington marketed them with phrases like “consider your man card reissued.” Lawyers for the Sandy Hook victims stress that the insecure men who believe that assault rifles give them a “man card” are exactly the kind of men who should not have an assault rifle.

Whether the Protection of Lawful Commerce in Arms Act shields Slide Fire from liability is unclear. The law applies to gun manufacturers and to manufacturers of a “component part” of a firearm. Since a stock is a component of a rifle, a bump stock might be viewed as a replacement component. But since no guns are manufactured with bump stocks, a bump stock prior to its attachment might instead be characterized as an accessory rather than a component part of a rifle.

One legal blogger notes that Slide Fire is a licensed manufacturer protected by the Act and assumes that accessories are a “component part” of a firearm while acknowledging the court decisions have focused on guns, not accessories. Another blogger quotes a lawyer’s opinion that unlicensed resellers of bump stocks might not be protected by the law even if manufacturers are protected.

But whether bump stocks enjoy the same protection as guns is far from self-evident. If bump stocks are components, why does the ATF regard them as attachments that it has no power to regulate? One would think that ATF is empowered to regulate guns with specific components, including bump stocks, just as it can regulate rifles when firing mechanism components have been modified to turn them into fully automatic rifles. ATF’s classification of bump stocks as “attachments” rather than “components” suggests that bump stocks might be exempt from the law that protects firearm manufacturers.

The law’s ambiguity leaves substantial room to wonder whether the law was meant to protect the manufacturer of a device that causes a legal firearm to act in the manner of an illegal firearm. If so, there is substantial room to wonder why Congress enacted a law that denies compensation to victims of slayings that were facilitated by bump stocks.

Whether Slide Fire can be held accountable for its dangerous device a question that courts will eventually need to resolve. Only voters, however, can decide upon the merits of laws enacted by Congress.

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