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California's New Gun Laws Attempt To Hold Industry Liable

By Catherine Hodder, Esq. on July 14, 2022 3:46 PM
In direct response to an increase in mass shootings and gun violence in America, California Gov. Gavin Newsom signed sweeping legislation that he and other lawmakers argue will hold gun makers and gun sellers accountable. The Firearm Industry Responsibility Act and other recent legislation will allow state and local governments and California residents to sue gun manufacturers.

What Are the new Gun Control Laws in California?

These notable gun control laws shift responsibility onto the gun industry. And they also expose gun manufacturers and gun dealers to civil liability.

Gun Manufacturers Are Held to New Standards of Conduct

The California Firearm Industry Responsibility Act (CFIR) establishes a firearm industry standard of conduct. It requires gun makers and retailers to block sales to people they believe may harm themselves or others or who may use the firearm unlawfully. Violations of the act expose manufacturers and gun dealers to civil lawsuits. This is different than red flag laws, which allow a family member or police officer to petition a court to confiscate someone's weapons if they pose a risk of harming themselves or others. The CFIR instead puts the burden on the gun makers and retailers to evaluate the risk of harm. Gun rights groups claim this law is too subjective. How could a gun seller know if someone was unstable or going to commit violence? However, this regulation is similar to dram shop laws, where bars and liquor stores are liable for injuries caused when serving intoxicated people. Under California law, anyone who sells or furnishes any alcoholic beverage to a known drunk or intoxicated person is guilty of a misdemeanor. There is a similar degree of subjectivity in evaluating if someone is a habitual drinker or drunk. Yet courts impose liability for violations.

Gun Manufacturers Can't Make 'Abnormally Dangerous' Firearm-Related Products

Under CFIR, gun companies and sellers cannot manufacture or sell firearm-related products that are "abnormally dangerous and likely to create an unreasonable risk of harm to public health and safety." California defines the "abnormally dangerous" standard where the product:
  • Is more suitable as an assault weapon instead of for self-defense, hunting, or recreation
  • Is designed where it can turn legal firearm-related products into illegal firearm-related products
  • Is marketed to minors or others prohibited from accessing firearms
Failing to follow these standards will expose them to lawsuits from the public and state, county, and local governments.

Gun Manufacturers Are Liable for Marketing to Minors

Newsom signed a related bill to prohibit the firearm industry from marketing its products to minors. The law comes with civil penalties of $25,000 for each violation. The bill also allows victims of gun violence to sue gun manufacturers for damages. California courts will consider the following factors when determining if a firearm manufacturer is marketing to make their products attractive to minors:
  • It uses characters that look like kids or cartoon characters
  • Offers brand-name merchandise (i.e., hats, t-shirts, stuffed animals, toys) to minors
  • Offers gun-related products designed to appeal to minors
  • Depicts minors using firearms in advertising and marketing
  • Advertises in publications whose audience is primarily minors
Gun rights advocates claim this law infringes on commercial free speech guaranteed by the First Amendment. However, a state can regulate the advertising and marketing of a manufacturer for health and safety concerns. For example, states can prohibit advertising cigarettes and alcohol to minors.

Ghost Guns Must Be Registered with Serial Numbers

Another bill that Newsom signed prohibits unserialized firearms or "ghost guns." Ghost guns are unmarked handguns or firearms that are put together with parts sold online. These guns aren't traceable, and owners can easily avoid background checks. California's new law mandates that all firearm parts have serial numbers. Additionally, any Californian with ghost guns must register them to add numbers by January 1, 2024.

Aren't Gun Manufacturers Immune to Lawsuits?

Under the 2005 Protection of Lawful Commerce in Arms Act (PLCAA), you cannot sue gun manufacturers for crimes committed with their products. Critics say it is unfair how one industry can escape liability. However, gun manufacturers may be liable if how they market their guns contributes to gun violence. Recently, nine families of the Sandy Hook Elementary School massacre sued gun maker Remington Arms for how they marketed their AR-15s, a popular gun in school shootings. The manufacturer paid for the product placement of the AR-15 in popular first-person shooter videogames. Remington Arms agreed to a $73 million settlement with the plaintiffs.

Will California's Gun Laws Stand?

The National Rifle Association (NRA) and other gun-rights groups oppose the state laws and most likely will sue. California's attorney general has signaled he is ready to defend any "commonsense" gun regulations. Can the new California gun control laws withstand constitutional challenges if brought to the U.S. Supreme Court? The court recently ruled against states making it more difficult to carry a concealed weapon in public. However, with the recent federal laws passed by Congress, and increasing public demand from Americans to hold gun makers and retailers accountable, the gun industry may finally be "outgunned."

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