Liability, guns and the law

Last summer, David Garcia was sentenced to life in prison for the 2003 murder of rookie Burbank Police Officer Matthew Pavelka.

Pavelka and another officer, Gregory Campbell, had approached two men sitting in a car without a license plate in an area known for gang activity. Garcia immediately opened fire on the officers, killing Pavelka and severely injuring Campbell. Pavelka was only 26.

Garcia, a known gang member with an extensive criminal history, would not have passed a background check to buy a gun. He acquired the weapon he used to kill Pavelka from a “straw purchaser” — someone with no criminal record who could pass the background check and later illegally convey the weapon to someone who couldn’t.

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The background check system is meant to keep guns out of the hands of killers like Garcia, but it is all too often circumvented by straw purchasers who buy large quantities of guns and resell them.

In many cases, it is not difficult for a gun dealer to tell when someone is a straw purchaser and intends to traffic in guns. The purchaser might seek to buy dozens of the same weapon; in such large quantity, these are not intended for personal use. Most dealers will turn away these purchasers. But a small proportion of unscrupulous gun dealers turn a blind eye to such fraudulent transactions, with tragic consequences. Pavelka’s murder may have been one of those consequences.

The Pavelka family filed a lawsuit against the gun dealer who sold the guns used to shoot Matthew, arguing that the dealer did not take reasonable steps to prevent the sale of the firearms to the straw purchaser who likely intended to resell the weapon on the black market. In an ordinary case involving any product other than guns, the family could have gathered evidence and subpoenaed witnesses to build their case and learn more about the sale. Yet the family’s suit was dismissed almost immediately thanks to a special legal immunity that Congress gave gun manufacturers, distributors and dealers, and their trade associations, in 2005. Unlike any other industry, the gun industry can commit negligence with impunity.

In 2005, when Congress passed the Protection of Lawful Commerce in Arms Act, granting the gun industry immunity in state and federal court from civil liability in most negligence and products liability actions, the National Rifle Assn. called passage “vitally important” and fought hard for it. Although there are exceptions in the law, it has been broadly interpreted to preclude most negligence lawsuits. The result is that — unlike the makers of chain saws, knives, automobiles, drugs, alcohol or even cigarettes — gun manufacturers and sellers have a lesser obligation to act with reasonable care for public safety.

When Congress passed the legislation, Sen. Larry Craig (R-Idaho), the chief sponsor of the bill and, at the time, an NRA board member, stated that “this bill will not prevent a single victim from obtaining relief for wrongs done to them by anyone in the gun industry.” In reality, several cases have been dismissed on the basis of the law, even when the gun dealers and manufacturers acted in a fashion that would qualify as negligent if it involved other products. Victims in these cases were denied the right to introduce evidence of negligence and seek justice.

Most gun dealers are responsible businesspeople, and according to a 2000 report from the Bureau of Alcohol, Tobacco and Firearms that studied gun trace data from 1998, 85% of dealers sold no guns used in a crime. It’s a small minority — just 1% of dealers — that sell 57% of the guns that end up being used to commit criminal acts. Good gun companies don’t need special protection from the law, and bad gun companies don’t deserve it.

We need to pierce the liability shield that the NRA and gun manufacturers have helped build for bad actors through this law. That’s why I have introduced legislation — the Equal Access to Justice for Victims of Gun Violence Act — to ensure that the victims of gun violence are allowed to have their day in court.

The criminal law system provided one measure of justice for the Pavelka family, and the civil courts should be available to do the same. We may never know whether the gun dealer who sold the weapon used to kill Matthew knew the purchaser was a phony who would pass it on to a violent criminal, because the Pavelka family was denied the chance to find out.

No industry deserves the right to act with reckless disregard for the public safety.

Rep. Adam Schiff (D-Burbank) is a former federal prosecutor and a member of the House Congressional Gun Violence Prevention Task Force.