Let courts open the way for smart guns

Since Sandy Hook approximately three years ago, there have been hundreds of mass shootings. After each, there is an outcry for increasing the scope of federal law to require the more extensive and inclusive use of background checks. But, after each horrific event, Congress does nothing, and we brace ourselves for the next senseless killing. To be sure, Congress needs to strengthen federal law, but there would still remain the problem that much gun violence is caused by those who are not the purchasers. That issue could be solved by pursuing another path that would immediately improve gun safety and reduce violence without the enactment of a single federal law. That strategy is to encourage the manufacture and sale of “smart guns.” It will happen if Congress simply repeals a federal regulatory law that grants gun manufacturers immunity from product liability suits — suits that can be brought against sellers of all other consumer products sold in the United States.

{mosads}Smart guns, otherwise known as “personalized firearms,” are firearms with imbedded technology that prevents a weapon from firing if not used by an authorized user. It will prevent shootings, both intentional and unintentional, by children, gun thieves and other unauthorized users. Two types of smart technologies presently exist: biometric sensors, which allow the gun to detect the fingerprints or grip of the authorized user, and token-based technology, which prevents the gun from functioning outside of the presence of a particular watch, ring or other device. Location devices are other mechanisms that can easily be incorporated into any weapon and would allow any owner or law enforcement personnel to locate a missing or stolen gun. We have apps that help us find our phones, and fingerprint recognition software to use them, but not for our guns. Something is seriously wrong.

According to the Law Center to Prevent Gun Violence, a San Francisco think tank, a study in 2003 analyzing data from seven years of unintended firearm deaths or deaths of undetermined intent found that 37 percent of the deaths — including children shot because they found and fired a parent’s gun, — could have been prevented by smart gun technology. A 2001 survey found that 73.6 percent of Americans favored a requirement that all new models of handguns be personalized. These technologies, already found in most smartphones, have been in existence for years, but not in guns.

When industries fail to keep up with current safety technology, under ordinary circumstances, product liability laws consider such products “defective” and manufacturers are held accountable in civil suits by those who are injured as a result. This accountability forces manufactures to make safer products and, at the same time, provides a remedy for those who are injured. The automobile industry changed many of its practices only as a result of such civil suits, which is why we now have safer cars with seat belts, air bags and antilock braking systems, to name just a few improvements. Other products, as well, have changed – child-proof medicine bottles, safe toys, machine guards and the list goes on.

Why, then, has simple, inexpensive smart technology not been incorporated in firearms sold in the United States today? The answer is that prior to 2005, firearms manufacturers, fearful of being sued for product liability, were in the process of developing smart guns. But that development came to a screeching halt when the gun lobby convinced Congress to enact the Protection of Lawful Commerce in Arms Act (PLCAA). PLCAA immunizes gun manufacturers from product liability suits where they would be otherwise liable under state laws. This extraordinary regulatory shield is not available to any other consumer product manufacturer.

Because manufacturers cannot be held liable for failure to implement safety measures, there is no strong incentive to adopt them. If PLCCA is repealed and lawsuits could be brought by children, police officers and others killed or maimed by guns used by unauthorized users, the gun industry would incorporate such smart gun technology immediately. To date, only one smart gun is reported to be on the market in the United States: The Armatix iP1, a German-made gun that includes a handgun and a watch that the user must wear to activate the gun. Safe gun technology is inexpensive, feasible, available now and will save lives. There is no justification for not using it. Universal background checks should be required on all gun sales to prevent even smart guns from getting in the hands of criminals or those on terrorist watch lists, but it is not worth spending political capital on this legislative effort without also repealing PLCCA and propelling manufacturers to sell smart guns.

The epidemic of gun violence that currently plagues America will continue unless we take a multifaceted approach. One important strategy, which can be immediately used to attack the current public health crisis posed by firearms, is to use the power of the courts to force the gun manufacturers to sell smart guns. Repeal PLCCA now.

Frank is president-elect of the Connecticut Bar Association, president of the New England Bar Association and a delegate to the American Bar Association House of Delegates. He lives in Sandy Hook, Conn. Koskoff is a trial lawyer based in Bridgeport, Conn. and represents some of the families in the Sandy Hook massacre.