In Search Of Justice:
Compensation For Victims Of Assault Weapon Violence

By Judith Bonderman*
Originally Published in Product Safety and Liability Reporter,
Vol. 20, No. 25, Jun 26, 1992

In January of 1989, five school children were killed and twenty-nine wounded when Patrick Purdy sprayed a crowded Stockton, California playground with gunfire. Using a semiautomatic assault weapon, a Chinese-made AK-47, with a 75-round drum magazine and a 35-round "banana" clip, Purdy was able to fire more than 100 rounds in a few short minutes.

The horror of Stockton focused national attention on an ominous new threat to the public safety — semiautomatic military-style assault weapons. These guns are distinguishable from hunting and sporting weapons by their combat hardware: large-capacity detachable ammunition magazines, folding stocks, pistol grips, bayonet mounts, flash suppressors, bipods, grenade launchers and night sights. Because of their extraordinary firepower and combat features, they are particularly attractive to drug dealers and other violent criminals.

When the District of Columbia recently enacted legislation making manufacturers and sellers of these military-style semiautomatic assault weapons strictly liable for death and injury caused by their use within the city, it addressed a serious legal question: Who should pay the costs of the violence perpetrated with these weapons of war? Should the innocent victims of the violence continue to absorb the costs or, should they be able to shift those costs, through liability actions, to the gun manufacturers and sellers who make the weapons readily accessible to the public?

This article analyses the common law theories of liability that form the legal foundation for such legislation. It argues that the imposition of strict liability on the assault weapon industry is neither radical, nor unprecedented. Rather, it is a sensible application of old and accepted legal principles to a new and dangerous threat. Both the "abnormally dangerous activity" doctrine and traditional negligence analysis provide a common law analytical framework and sound policy basis for shifting the cost of assault weapon violence to the gun industry.

The Costs of Assault Weapon Violence

According to one recent study of over 42,000 traces of guns recovered from crime scenes, semiautomatic assault weapons, both rifles like the AK-47 and handguns like the infamous MAC-11 and TEC-9, are twenty times more likely to be used in criminal activity than conventional firearms. They are 25 times more likely to be used in connection with narcotics-related activity. The inescapable conclusion is that the risks to the community of selling these guns to civilians, rather than restricting them to a military/police market, greatly outweigh any conceivable benefit.

In the wake of the Stockton tragedy, the federal government barred the importation of foreign-made assault rifles, and a spate of state and local assault weapon bans were adopted. Despite these legislative efforts, there are approximately one million of these guns in the hands of private individuals and the domestic gun industry is manufacturing and selling more every day. Given the high risk that assault weapons will be used in crime, the business decision to sell them to the general public is exacting a substantial economic and social toll. Although the costs of death and injury from assault weapon violence are borne, in the first instance, by victims, ultimately much of those costs are imposed on the rest of us through the cost-spreading mechanisms of private and government insurance. The costs of assault weapon violence are not borne by the manufacturers, distributors, and dealers who have made the calculated and highly profitable business decision to market these combat weapons to the general public, instead of restricting their sale to the military and police.

The District of Columbia Assault Weapon Liability Act

The District of Columbia Council and D.C. residents voted overwhelmingly that the costs of this violence should be shifted and the gun industry must be held legally accountable. The D.C. Assault Weapon Manufacturing Strict Liability Act of 1990 provides:

Any manufacturer, importer, or dealer of an assault weapon shall be held strictly liable in tort, without regard to fault or proof of defect, for all direct and consequential damages that arise from bodily injury or death if the bodily injury or death proximately results from the discharge of the assault weapon in the District of Columbia.

This legislation clearly expresses the judgment of one community that the business decision to sell assault weapons is fundamentally different than the decision to sell other potentially dangerous products, including other kinds of firearms. Well-established common law principles lead to the same result. The gun industry, which profits enormously from its calculated business decision to market these combat weapons to the general public, instead of restricting their sale to the military and police, should be liable for the inevitable social cost caused by their foreseeable use in criminal activity.

The Common Law Doctrine of Strict Liability for Abnormally Dangerous Activities

Ironically, the doctrine most relevant to the high tech violence of assault weapons is over a century old: the doctrine of strict liability for "ultrahazardous" or "abnormally dangerous" activities.

This doctrine originated in the 1866 English case of Rylands v. Fletcher. A reservoir constructed by defendant mill owners leaked into an adjacent abandoned coal mine, flooding connecting passages and the adjoining mine of the plaintiff. The "rule" of the case, drawn from a combined analogy of strict liability for trespassing cattle, dangerous animals and absolute nuisance, was that a landowner who brought anything on his land for his own purpose which might do mischief if it escaped, was "prima facie answerable for all the damage which [was] the natural consequence of its escape." The House of Lords narrowed the focus of the rule to "non-natural" uses of the defendant's land.

Although many of the modern applications of the abnormally dangerous activities doctrine, like Rylands, have involved abnormal uses of the defendant's land, the doctrine is not so narrow. American courts have applied it to diverse situations in which the defendant's activities have introduced an unusual danger into the community exposing innocent persons to unreasonable risks of harm. Moreover, it did not matter if the offending conduct — the introduction of the unusual hazard — was a perfectly lawful business. As the D.C. Court of Appeals stated in 1907, adopting the principles of Rylands:

As civilization spreads . . . the rights of property and the rights of the individual are more and more subordinated to the rights of the public; the rights of the few to the rights of the many. . . . If one of two persons must suffer loss, no good reason can be found why the loss should be charged against the one who has in no way contributed thereto.

Where the defendant "knows or should have known" that locating a dangerous substance within a crowded city, however legal, could surely injure great numbers of innocent parties, and yet he deliberately chooses to do so, he "must now make good the damages which directly ensued."

The application of strict liability to those who introduce unusual dangers into the community also has been broadly endorsed in the Restatement (Second) of Torts. The principle is set out in Section 519:

• One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he exercised the utmost care to prevent the harm.

• This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

Comment d to Section 519 identifies the policy justification for this rule of strict liability:

The liability...is founded upon a policy of the law that imposes upon anyone who for his own purposes creates an abnormal risk of harm to his neighbors, the responsibility of relieving against that harm when it does in fact occur.

For that reason,

The defendant's enterprise...is required to pay its way by compensating for the harm it causes, because of its special, abnormal and dangerous character.

Courts in the United States continue to cite Rylands as the leading authority on the doctrine while simultaneously using the six factor test from the Restatement(Second) of Torts to determine whether an activity is abnormally dangerous:

1. existence of a high degree of risk of some harm to the person, land or chattels of others;
2. likelihood that the harm that results from it will be great;
3. inability to eliminate the risk by the exercise of reasonable care;
4. extent to which the activity is not a matter of common usage;
5. inappropriateness of the activity to the place where it is carried on; and
6. extent to which its value to the community is outweighed by its dangerous attributes.

Yet, the doctrine that has developed through the case law is still a limited one; not all dangerous activities lead to strict liability. Liability turns on the unusual or excessive nature of the hazard and the foreseeability that it will harm innocent third parties.

Applying the Abnormally Dangerous Activity Doctrine to the Marketing of Assault Weapons

Application of the Restatement factors and common law principles makes a strong case that the manufacture and sale to the general public of assault weapons is an abnormally dangerous activity for which strict liability should be imposed.

Defining the Abnormally Dangerous Activity

It has been argued that the manufacture of assault weapons is not abnormally dangerous in itself, only the use of an assault weapon is abnormally dangerous. However, this purported distinction ignores the long-standing judicial authority applying this doctrine broadly to activities which 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, while blasting with dynamite is considered the paradigm abnormally dangerous activity, the doctrine also applies to the mere storage of explosives. In Exner v. Sherman Power Const. Co., the Second Circuit rejected a legal distinction between damage caused by an explosion of stored dynamite and damage caused by actual use of dynamite in blasting. Similarly, the Oregon Supreme Court in McLane v. Northwest Natural Gas Co., applied the doctrine to the storage of large quantities of natural gas. Obviously, the storage of dangerous products, in and of itself, cannot cause injury; the intervention of some other force, whether it be lightning or the careless use of a match, is required. "The basis of the liability", the Court wrote in McLane, "is the intentional behavior in exposing the community to the abnormal risk." If the risk ripens into injury, it is immaterial if the harm occurs through the action of a human being, an animal or a force of nature.

Using this analysis, the doctrine has been applied to harm caused by the shipping or transporting of dangerous substances, the manufacture and aerial spraying of pesticides, and the disposal of toxic wastes. These cases concerned dangerous products that became even more dangerous because of the method chosen to store, transport, or distribute them. The actionable harm was triggered by the foreseeable and unavoidable and, perhaps even, criminal conduct of another party. While this substandard conduct might be actionable itself, the courts applied strict liability principles to the person or enterprise that introduced the dangerous product into the community in such a fashion as to present an unusual and abnormal risk. Whether the actual damage was precipitated by a leak in a storage tank, the natural drifts of the wind, a bolt of lightning, or a torch thrown by thieves, the courts required those who created the risk for the benefit of their own enterprise to bear the loss rather than those whose only connection with the enterprise was to have suffered damage because of it.

Similarly, the foreseeability, indeed inevitability, that assault weapons will be used to injure and kill innocent persons strongly supports the view that their manufacture and unrestrained sale to the general public is abnormally dangerous. This legal theory properly places the emphasis on the conduct of the assault weapon seller, not on defects in the guns. In the abnormally dangerous activity case, as opposed to a products liability case, an activity involving a product is abnormally dangerous in its normal, nondefective state. If it causes damage, strict liability attaches without a showing of negligence or defect.

In Chapman Chemical Co. v. Taylor, for example, strict liability was affirmed against the manufacturer of the pesticide 2-4-D. This chemical powder, which has a propensity to travel great distances when cast into the air, was highly efficient for its intended use to kill broad leaf plants, but its properties also made it extremely lethal to other plant life. The Arkansas Supreme Court wrote:

[H]ere we are dealing with an extra hazardous chemical known to be highly dangerous....

If one casts into the air a substance which he knows may do damage to others, and in some circumstances will certainly do so, principles of elementary justice, as well as the best public policy require that...if he releases such a substance . . . the rule of strict liability should be applied.

Analytically, the risks of criminal misuse created by marketing assault weapons to the general public are analogous to the risks of an explosive chemical transported in a defective railroad car, lethal pesticides carried off-course by the wind, or a vicious tiger escaped from a circus.

The Restatement Factors

Application of the Restatement factors also supports strict liability for the manufacture and sale to the general public of assault weapons.

• High Degree of Risk of Harm

As mentioned earlier, recent statistical studies have confirmed what law enforcement officials have known for some time: assault weapons, because of their firepower and military-style features, have become the weapons of choice for drug dealers and other violent criminals. According to the Director of the federal Bureau of Alcohol, Tobacco and Firearms,

The primary reason that [a federal ban] was necessary to stop the importation of semi-automatic assault-type rifles was the dramatic increase in the use of these types of weapons in crime and the threat to the public safety presented by such increase...It is the general consensus of law enforcement officials that the ever-increasing presence of assault-type rifles in the illicit drug trade and in other types of crime places the safety and the very lives of the American public in immediate peril.

Director Higgins relied in part on statistical evidence based on ATF traces of firearms recovered from crime scenes:

At the request of Federal, State, and local law enforcement officials, ATF's Firearms Tracing Branch performs thousands of traces of firearms recovered from crime scenes each year. For each of the fiscal years 1986 and 1987 approximately 2,525 assault-type weapons were traced by ATF. In 1988, 3,977 assault-type weapons were traced, representing a 57% increase in tracings for this type of weapon over a 2-year period.

The critical point here is not simply that assault weapons are dangerous. All firearms are dangerous. The difference is that the physical characteristics of assault weapons ensure that they will be used in criminal activity far out of proportion to their numbers. They are basically semiautomatic versions of fully automatic military machine guns. The capacity to accept detachable magazines holding 30 or more rounds of ammunition, pistol grips (on the rifles) which allow the shooter to rapidly spray-fire the weapon while maintaining its stability, folding stocks (on the rifles) which sacrifice accuracy for the advantages of concealability and mobility, and flash suppressors to permit the shooter to remain concealed while shooting at night — these features have no sporting or other legitimate purpose, but are useful only to someone anticipating violent confrontations with the authorities.

In short, the characteristics of assault weapons create a high degree of risk that they will be used to injure or kill innocent persons.

• Likelihood That Resulting Harm Will be Serious

As Patrick Purdy demonstrated on the playground in Stockton, semiautomatic assault weapons are capable of far greater destruction than conventional firearms. Because each pull of the trigger on a semiautomatic fires one round and instantly reloads the next, they are capable of a rate of fire almost as rapid as fully automatic machine guns, which continue to fire as long as the trigger is depressed or until the ammunition magazine is depleted. Tests conducted by the San Jose Police Department show that whereas a fully automatic Uzi can fire a 30-round magazine in slightly less than two seconds, the semiautomatic version fired the same magazine in five seconds. The rapid-fire capability of these weapons, joined with their use of ammunition magazines holding scores of rounds, gives them extraordinary destructive power.

• Inability of Manufacturer/Seller to Eliminate the Risk

Once a manufacturer of assault weapons has made the decision to market these weapons to the general public, there is no way to ensure against their violent use to harm innocent persons. The manufacturer could require that gun retailers conduct a background check of prospective purchasers to determine whether they fall into one of the categories of persons to whom dealers are barred by federal law from selling firearms (e.g. minors, convicted felons, fugitives, drug addicts, and persons who have been committed to mental institutions). This would not, however, solve the problems of secondary transfers, thefts, and violent activity by persons who may not fall into one of those categories. The only way to eliminate the risk of criminal violence with assault weapons is to limit sales to the police and the military, or to stop producing the guns entirely.

• The Activity Is Not a Matter of Common Usage

Assault guns represent a minuscule percentage of the firearms sold in the United States. The best estimate is that assault weapons account for only 0.5 per cent of the 200 million presently-owned firearms in the United States. Nevertheless, they were used in one of every ten crimes resulting in a firearms trace request to the federal Bureau of Alcohol, Tobacco and Firearms during the period January 1, 1988 to March 17, 1989. The manufacture and sale of assault weapons is thus an uncommon activity which creates an enormous risk of harm. It is the extraordinary and unusual nature of the danger that distinguishes assault weapons from the more ubiquitous hazards of everyday life created by products like automobiles, trains, alcohol, knives, and ordinary firearms.

• Activity Is Inappropriate to Place It Is Carried On

Marketing these combat weapons to the general public, instead of restricting their sale to the military and police, is inappropriate wherever it occurs. Given the trafficking in firearms, once these guns are sold anywhere, they threaten communities everywhere. As the U.S. District Court for the District of Columbia noted in Delahanty v. Hinckley, a nationwide firearms distribution scheme could succeed in indirectly distributing large numbers of guns in D.C., even though gun sales are prohibited by local law.

• Value to the Community Weighed Against Dangerous Attributes

It is difficult to imagine how the value of manufacturing and distributing assault weapons to the general public could outweigh the risk inherent in the activity. The fact that these weapons are disproportionately used in criminal activity is itself a persuasive indication that their social costs exceed their benefits.

Leading commentators have criticized this factor as a criteria for determining strict liability because it appears more relevant to a negligence theory. The application of the abnormally dangerous activity doctrine should be viewed as an alternative theory, giving the court the option of adopting a negligence theory consistent with the comment to Section 519 of the Restatement: "[i]f the utility of the activity does not justify the risk it creates, it may be negligence merely to carry it on, and the rule stated in this Section is not then necessary to subject the defendant to liability for harm resulting from it."

Negligence Theory

Firearms importers, such as Springfield Armory, Inc. of Illinois, circumvent the federal import ban on assault rifles by producing the same weapons domestically. Domestic manufacturers, finding that the military and law enforcement markets offer only limited sales possibilities, are glutting the civilian market. These gun giants 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. Yet, they entice civilian buyers with advertising copy like "The Machine Designed to Clean Thoroughly on the First Pass," and "The Gun that Made the 80's Roar." They deliberately introduce extraordinary firepower into our communities where these assault weapons are still legal and facilitate a burgeoning black market in those places where the weapons are banned. Does the decision by manufacturers and dealers to sell assault weapons to the general public using marketing techniques that emphasize the killing power of the guns breach a duty of reasonable care? When these weapons are inevitably used in crime, does a simple risk/benefit negligence analysis provide a viable theory of liability?

It is well-established that manufacturers of dangerous products have a legal duty to design and market such products in a manner that avoids an unreasonable risk that they will be misused to cause injury to others, including bystanders. This doctrine has been applied, for example, to the marketing of slingshots to children, Moning v. Alfono, and to the sale of blasting caps. Hall v. E.I. Dupont de Nemours & Co. In both Moning and Hall the courts relied on statistical data showing the foreseeability of misuse of these products in the hands of children. Whether or not the risk created was unreasonable could be determined by balancing the magnitude of the risk against the utility of the manufacturer's conduct. Moreover, under negligence theory, even criminal conduct is not a superceding cause if the conduct itself is a foreseeable consequence of the negligent act.

In Kelley v. R.G. Industries, Inc., the highest court in Maryland applied a hybrid negligence/strict liability theory to hold that manufacturers of highly concealable, low-quality handguns known as "Saturday Night Specials" could be liable for deaths and injuries from the criminal use of those guns. The Kelley holding was based on a risk/utility analysis and the factual determination that the particular physical characteristics of Saturday Night Specials "render [them] particularly attractive for criminal use and virtually useless for the legitimate purposes of law enforcement, sport, and protection of persons, property and businesses." Implicit in the decision is an acknowledgement that gun manufacturers have a duty of care to the general public not to market guns that are particularly suitable for criminal activity and unsuitable for lawful purposes.

Thus, negligence theory could provide an alternative basis for the liability of assault weapon manufacturers who have designed guns with extraordinary firepower and military features that have no legitimate civilian use and a heightened risk of misuse in crime. The marketing of those guns to the general public, in disregard of the known risks, breaches the manufacturer's duty of care to third parties foreseeably affected by its products.

Conclusion

Using tort principles to make the gun industry pay for assault weapon violence serves important policy considerations. First, as Lord Blackburn explained in Rylands, "[t]he general rule ... seems on principle just." As between the innocent victim who "is damnified without any fault of his own" and the dangerous enterprise, "it seems but reasonable and just" that the latter should be obliged to make good the damage which it causes.

Even though strict liability is described as liability without fault, an enterpriser who intentionally exposes the community to an abnormal risk of a serious nature is blameworthy if he fails to compensate for the inevitable injury. Thus, if the defendant's enterprise will be tolerated by the law, it must pay its way by insuring the public against the injury it causes. As the Oregon Supreme Court said in Koos v. Roth, "[t]he person conducting the activity can choose whether or not to chance the potentially costly consequences. . . .The potential victim cannot make that choice."

Second, shifting the costs of violence serves policies of economic efficiency familiar to products liability lawyers. As long as criminals are offered larger and more powerful arsenals, the gun industry will continue to reap the profits. The risk-distribution rationale for imposing liability places the loss on the party best able to shoulder it, and best able to take action to reduce the risk of harm. The industry has several possible options in responding to the risk of liability. It may simply pass the cost on to the buyers of assault weapons by raising the price. If this means that far fewer assault weapons are sold, it would be the result, not of judicial fiat, but of a redistribution of costs that requires those who benefit from the sale of assault weapons to pay their true costs. Finally, if the economic burden is too great, the assault weapon industry could reduce the risk of harm by limiting the sale of these weapons of war to an appropriate military/police market.

*Judith Bonderman was formerly a Staff Attorney for The Legal Action Project at the Center to Prevent Handgun Violence in Washington, D.C.