After the Ban: Shifting the Cost of Assault Weapon Violence to the Gun Industry

By J. Bonderman
Originally published in N.J. State Bar Association's Newsletter
February 1992

In 1990 the New Jersey Legislature recognized that the extraordinary firepower and combat features of assault guns such as Uzis, AK-47s, TEC-9s, AR-15s and MAC-10s made them particularly useful to drug traffickers and other violent criminals. It banned the manufacture, sale or possession of these guns, with very narrow exemptions for certain registered weapons or licensed owners, N.J.S.A. 2C:39-1 et seq.

By providing criminal penalties, the law will limit the possession and deter the proliferation of these rapid-fire weapons in New Jersey. In addition, the statute allows victims of assault weapon violence to collect damages from registered or licensed owners when the guns are used in a crime. Unfortunately, the substantial economic and social toll of assault weapon violence will not disappear overnight. Neither the narrow statutory civil damage remedy nor intentional tort doctrine will compensate the victim of assault weapon violence if the gun used is not legally registered or the owner/shooter is dead or has no resources. Yet it is never fair to make the victim absorb the costs of the uncommon risks associated with these combat weapons. Nor is it fair for the industry that profits from introducing these weapons into the stream of commerce to bear none of these costs. In shifting the costs of violence, we must look beyond the criminal who fired the gun to the industry ultimately responsible for putting the gun into the criminal's hands.

Assault weapons are distinguishable from hunting and sporting weapons by their combat hardware: large-capacity detachable ammunition magazines, folding stocks, pistol grips, bayonet mounts, flash suppressers, bipods, grenade launchers and night sights. In spite of the public awareness of the extraordinary dangers to human life from these weapons, the gun industry has made a calculated business decision to continue to market them to the general public, instead of restricting their sale to the military and police. Gun giants like Colt lobby in opposition to assault weapon bans and sue to overturn local and state laws that threaten their enormous profits. They deny that death and injury from bullet wounds are a foreseeable external cost of assault weapon manufacture and sale. The proper judicial response is to shift these costs to the gun industry, using well-established principles of risk spreading.

The New Jersey Legislature could have made assault weapon manufacturers and dealers strictly liable for the social cost of the foreseeable use of their products in criminal activity, whether the guns were illegally distributed in New Jersey, or legally sold in other states and used to cause violence in New Jersey. When the Legislature found that environmental menaces threatened the state's health, safety, and welfare, it prohibited, in the Spill Compensation and Control Act, the discharge of hazardous substances and imposed strict liability on persons "in any way responsible" for their discharge "within or outside the jurisdiction" of the state when damage is caused in New Jersey. Thus, a supplier of hazardous substances may be liable for cleanup costs arising from the mere sale of a product or for toxic tort injuries occurring after a product is disposed.

Although similar legislation could have been crafted for the assault weapon industry, common-law principles can be used to reach the same result. The doctrine of strict liability for "ultrahazardous" or abnormally dangerous" activities, which originated in the 1866 English case Rylands v. Fletcher, has been applied by American courts to hold defendants liable for the introduction into the community of a dangerous product or instrumentality that presented an unusual and abnormal risk of serious injury because of the way it was stored, transported, or distributed.

The analysis starts with an abnormally dangerous product, such as toxic waste, combustible gases, or dangerous chemicals. Strict liability follows from the defendant's conduct with regard to the product, not from a defect in the product itself. In many cases, such as blasting with dynamite, the activity itself directly causes the harm. The doctrine also applies to activities that create the conditions under which there is a high degree of danger that some other event, perpetrated by man or nature, will cause injury.

For example, the storage of explosives has been found to be an abnormally dangerous activity, even tough it does not cause injury directly. The intervention of some other force, whether it be lightning or the careless use of a match, is required.

Having introduced an unusual danger into the community and exposing innocent persons to an unreasonable risk of harm, the enterprise that stands to profit must bear the loss when the risk ripens into injury. Moreover, courts have applied the doctrine to impose liability even where the intervening cause triggering the injury is a criminal act, as long as the act is reasonably foreseeable.

The New Jersey courts have adopted this common-law analysis to find manufacturers/owners – the "generators" – of toxic wastes liable for the harm caused by the storage or disposal of hazardous waste. State Department of Envtl. Protection v. Ventron Corp.; State Department of Envtl. Protection v. Arlington Warehouse; Kenney v. Scientific Inc.

In these cases, the imposition of liability does not result simply from the creation of the hazardous waste. The harm results from the way it is stored or disposed. Similarly, the manufacture of assault weapons is not abnormally dangerous in itself. But when a company markets assault weapons to the general public, thus ensuring their availability to criminals, its conduct exposes the community to a risk of violence that is no less foreseeable than the risk of injury from storage of a dangerous explosive, or disposal of a toxic waste. The analysis also satisfies the factors listed by the Restatement (Second) of Torts, Section 520, and applied by the New Jersey Supreme Court in Ventron.

1. Existence of a high degree of risk of harm. A 1989 study of 43,000 guns traced to crime showed assault weapons are 20 times more likely than conventional firearms to be used in criminal activity, and 25 times more likely to be used in drug crimes.

2. Likelihood that resulting harm will be great. Their rapid-fire capability and large magazine capacity, ranging from 20-75 rounds, give assault weapons extraordinary capacity for destruction.

3. Inability to eliminate the risk through ordinary care. There is no "careful" way to sell assault weapons to the general public. Their general availability ensures their use by violent criminals.
4. The activity is not common. Assault weapons account for only 0.5 percent of the 200 million privately owned firearms in the United States. The uncommon nature of assault weapon sales distinguishes them from the sale of more ubiquitous, but potentially hazardous, products like automobiles, alcohol, knives and other firearms, to which this analysis would not necessarily apply.

5. Inappropriateness of the activity to the place it is carried on. Marketing combat weapons to the general public, instead of restricting their sale to the military and police, is inappropriate wherever it occurs.

6. Value of activity outweighed by dangerous attributes. Assault weapons serve no socially useful purpose in civilian hands.

In light of the growing evidence of the impact of assault weapons on crime, and the statutory prohibition on their sale and possession in New Jersey, it is time for the New Jersey courts to extend the concept of strict liability to high-tech contemporary violence. A revitalized abnormally dangerous activity doctrine could remedy the unjust allocation of risks and costs between the innocent victims and the gun industry.