Smart Guns–Dumb Lawsuits By David Codrea, © 2001
Reposted from:
Part I- The New Battleground
"New Orleans Aims Lawsuit at Gun Makers," declares the CNN.com headline.
"We seek to recover damages...from the...sale of guns that are not safe," postures the Big Easy's mayor, Mark Morial.
"If we can childproof medicine bottles, why can't we childproof guns?" sound-bites Dennis Henigan of the Center to Prevent Handgun Violence (CPHV).
The answer is, we can– to a degree. But will they be worth a damn for defense if we do?
"Recent efforts to sue firearms manufacturers based upon firearms that work as intended, is a drastic departure from nearly a century of settled products liability law," says Los Angeles-based liability attorney Steven A. Silver. "Attempts to hold firearms manufacturers liable will create two serious problems: first, they may be forced into including 'safety devices' which actually make guns less effective for self-defense, and second, this same theory could be applied to all sorts of common products, such as knives, cars, workshop tools, even crowbars. There is no way of limiting liability."
222 people died in 1997 in New Orleans after being shot by handguns. How many of those deaths do you think could have been avoided had the guns involved been "child-proofed"? The reality is, about that number (250) of children, ages 0-14 died in firearm related accidents nationwide last year. While this is unarguably tragic, it should be noted that this is the lowest number in over 60 years despite an exponential increase in the number of privately owned guns, thanks in large part to the most effective means of "child-proofing" known– education.
This figure must also be put into perspective if an accurate assessment of societal risk is to be made. According to 1997 National Safety Council statistics, accidental gun deaths in all age categories are dwarfed by motor vehicle deaths (almost 31 to 1), falls (10 to 1), poisonings by solids and liquids (7 to 1, in spite of Mr. Henigan's "child-proof" containers), drownings (almost 3 to 1), fires (over 2 to 1), and suffocation from choking (over 2 to 1) In real numbers, there were 92,000 accidental deaths from all other causes, compared to 1,400 accidental deaths due to misuse of a firearm.
Besides, does anyone think that "child-proofing" guns owned by law-abiding citizens will have any impact on the criminal killers who accounted for 100% of New Orleans' and the nation's gun murders last year?
And what does Dennis Henigan mean by "child-proofing" anyway?
In addition to laws aimed at suing gun owners who do not "safely" store their firearms (defined by the anti-gunners as unloaded, locked in a safe and separated from ammunition, i.e., useless for defense), four basic technologies are being promoted as "reasonable" precautions which need to be mandated by law: loaded chamber indicators, "child-resistant" triggers, locks, and "personalized" magnetic or electronic devices. Perhaps we would do well to explore these options, and see if it is really in the public interest to sue gun makers for not incorporating them into all of their designs.
The common factors shared by all of these devices are that they either interfere with the primary function of the gun, that is, to fire upon demand, or they are presented as acceptable substitutes for knowledge, responsibility, accountability and judgment. Bearing this in mind, don't be surprised to find that adding complexity to any mechanism can result in less, not more reliability and safety. But in the Newspeak of the gun prohibitionists, restraints are meant to enhance performance.
A loaded chamber indicator on a Beretta 92 Compact L did not stop 14-year-old Michael Soe from feloniously killing 15-year-old Kenzo Dix during a practical joke. The fact is, Soe's father left a loaded gun where an untrained, impulsive and judgmentally-challenged adolescent could find it. In their lawsuit, backed by CPHV, Dix's parents maintained, among other charges, that the chamber indicator was inadequate because the gun was not inscribed with a warning as well. Presumably, were Beretta to do so, they would still be deemed negligent for not including such warnings in Spanish, French, Mandarin Chinese and Tagalog.
"Child-proofing" a trigger means you make it harder to squeeze. This may, in fact, keep kids under two or three who live with total idiots from firing a gun left in their care. The increased trigger pressure will also make it a lot harder to hit what you intend to, increasing the chances of missing your target in a defensive situation and hitting something (or someone) else. And if old widowed Mom lives alone and has arthritis, forget a handgun as an option against things that go bump, smash, and slash in the night.
Locks come in two basic flavors, external, including lock boxes and trigger locks, or mechanisms built into the gun, as with Intraloc's new design. These can prevent a child from firing your gun, although some guns can fire when equipped with trigger locks, as proven in an NRA-conducted demonstration. The problem with both is, they give a criminal aggressor a head start in an attack, generally around 2 - 3 seconds (minimum) in an ideal laboratory setting, or, say, enough time for him to cross a room, hit or stab you several times, or empty a clip from his non-handicapped gun. Should the assailant not be considerate enough to attack you in a laboratory, you can add the factor of being roused from slumber, in the dark, fearful and trembling, and suddenly cognizant of the fact that if you mis-key the combination you can add at another 2 - 3 seconds or more to your defense; and if you mess up again with many models, you could be locked out for good.
Finally we come to the technology hailed by the rabidly anti-gun Los Angeles Times as the panacea which "shoots holes in (the) gun rift" and provides common ground to both sides in the gun debate: "personalized" firearms, or guns that only shoot if their owner is wearing a special ring. A quick rule of thumb- if the LA Times is for it, it must be bad for gun owners.
This technology is lauded not only as a solution to the accidental gun death problem, but as something that will especially protect police officers who have been disarmed by violent perps. It's also seen as the cure-all for stolen guns under the premise that these weapons will have no market value without a ring.
The two approaches currently touted are magnetic devices, such as Magloc's conversion kit, and Colt's prototype "smart gun", which activates its firing mechanism using radio-frequency technology developed by Sandia National Laboratories from a $620,000 National Institute of Justice grant.
One of the obvious flaws of relying on such gadgetry was pointed out by writer J. Neil Schulman, author of "Stopping Power- Why 70 Million Americans Own Guns" and "Self Control Not Gun Control" in a published rebuttal to The Times: "My usual firing hand might have been incapacitated...I might...need to pass my firearm to someone I trust. "
While Magloc claims to have a mechanism which disables the lock-out, activating it requires a conscious effort (and a distraction) on the part of the ring-wearer that he may or may not be capable of carrying out. It also presupposes that anyone who has allowed himself to be disarmed by an attacker has not also been effectively rendered vulnerable to whatever savagery the attacker brings to bear. And as for stolen "smart guns", keep in mind that what can be installed can be removed, and what can be circuited can be bypassed. Besides, rings (and fingers) can be removed.
Add to this a cost factor which will discriminate against Americans of modest means by denying them access to defensive weapons should such technology be required; Colt's "smart" technology will add around $300 to the price of their gun.
Still, ceding to rationality has never been the long suit of the gun ban crowd. Expect the New Orleans suit to press onward, as well as the suit against Beretta (their motion for dismissal was denied). On top of that, other cities are watching carefully, and contemplating similar lawsuits of their own, notably the birthplace of our Constitution, Philadelphia, where Mayor Ed Rendell wants to add the twist of penalizing gun manufacturers for the illegal purchase, possession and use of their products. Such a suit has already been brought at the federal level against Intratec after one of their pistols, traced back to a Mississippi pawnshop, was used to kill a Chicago police officer during an apartment break-in.
Look for legislation requiring that guns be "child-proofed", as has been introduced in New York, Pennsylvania and New Jersey. Don't be surprised to see laws banning the sale of all "non-smart" firearms, as has been proposed by Maryland Gov. Parris Glendening.
And lest you think that only the manufacturers, retailers and trade associations are on the hook, be prepared for personal liability suits should a mishap occur with a gun from a private home that has not been stored "safely" according to what Bill Clinton means by "safe."
So what's a gun owner to do? Several things, actually.
First, don't rely on the gun manufacturers to carry the standard. While some have been champions in defending the Second Amendment, never forget that these are companies in the business of providing a return to their investors, not fighting ideological battles. Many were more than happy to see George Bush ban imported "assault weapons", as this eliminated a source of competition. Others wouldn't mind seeing a ban on affordable firearms, as this will steer traffic their way. And even those who have been supportive of Constitutional issues in the past did not shy away from a Rose Garden photo-op promoting trigger locks because they thought it would buy them some PR mileage. There is a definite financial incentive for settling lawsuits, and being first in line with mandated technology.
The next thing to do is to become informed on the issues, to understand the impact of legislation, and to know a lie when one is spread by an opportunistic politician, a socialist editor, a vacuous dilettante celebrity, or a "useful fool" cleric or academic. A good way to do this is to join a pro-gun organization. This provides fellowship with people of similar values, a network for sharing information and promoting the Second Amendment, and strength in numbers to support or fight candidates and legislation. Any gun owner who will not devote time and resources to supporting gun rights is a freeloader, a burden on those who do, and typically the one who whines the loudest when surprised by a new law that his activist neighbors had been fighting against since it's drafting.
Promote the most effective and proven means of ensuring gun safety for both adults and children– education and training. Introduce your kids to NRA's award-winning Eddie Eagle program, with it's message: "Stop! Don't touch. Leave the area. Tell an adult." Remember that in a test aired on ABC's World News Tonight, it was the kids who had not received such training who picked up a (disabled) gun and began playing with it.
Get a computer. Then get on the Internet.
Never forget that this is a moral issue, an issue of our claim to life and liberty as articulated in the Second Amendment's guarantee and sacred pledge that "...the right of the People to keep and bear arms shall not be infringed." Remember that the parasite politician who ignores this proscription is a vile and pandering oathbreaker, and a tyrant wanna–be, and that the primary defense of your status as a sovereign citizen can be no one's responsibility but your own.
Fine– that's "Big Picture" stuff, and philosophically comforting (or alarming?), but how do we translate such generalizations into specific actions directed to the issue of "smart guns?" Maybe something could be made of the fact that Colt intends to distribute 100 of its prototypes to police departments for field testing in about a year, and expects models will be ready for widespread use by law enforcement agencies in three. Perhaps if police officers were reminded of the importance of "weak hand" shooting as an essential handgun combat technique, concern could be generated among their unions that a gun dependent on a ring and a battery and a programmed computer circuit and a radio signal might not be as reliable as one that just fires when you need it to. Should the anomaly of disarmed cops, which in many cases could be avoided with heightened training and awareness, be justification for mandating that all seasoned officers limit their protective options and assume additional risks? Do the suits and hacks pushing this really know best what works on the streets?
And if the cops won't use 'em, the argument that the rest of us must should be exposed for the strategic fraud that it is.
Or it would if there was any rhyme or reason to gun control. Unfortunately, the true agenda of the gun banners glimpses out from the dry pages of the missive "Unsafe by Design: Using Tort Actions to Reduce Firearms-Related Injuries," by anti-defense advocates Mark. D. Polston and Douglas S. Weil, who lament: "...if all guns were designed with loaded chamber indicators, this...would not prevent unintentional shootings by the very young or the very foolish."
There you have it, their true goal, laid out in black and white. The only acceptable guns are those which can be handled in complete safety by fools. Forget responsibility and accountability. Forget training and judgment. Forget the fact that life is fraught with risks and benefits and tradeoffs. Forget individual freedom and inalienable rights. Unless a drooling moron can hold the gun in his toes and gnaw on the barrel and yank back on the trigger with his (presumably opposable) thumbs in utter and oblivious tranquillity, it must be banned.
But it seems I read somewhere that anyone who thinks he's come up with a fool-proof device has underestimated the ingenuity of fools.
Part II- Beyond the Valley of the Smart Guns
Our story so far: In Part I (see "The New Battleground") , we explored lawsuits filed against gun manufacturers under the theory that they were negligent in not making their products "childproof". We then examined the different types of "child-proofing" technologies available, with an emphasis on so-called "smart guns", i.e., guns that will not operate unless their owner is wearing an electronic ring to activate the firing mechanism. We concluded by demonstrating the true motives of those behind both the lawsuits and laws mandating universal implementation of this technology: banning private ownership of all guns that are not "foolproof", in the literal sense of the term.
Before we further examine the "smart gun" controversy, an update is in order:
The Handgun Control, Inc. (HCI)-supported lawsuit, Dix v Beretta U.S.A., Inc., was decided in favor of the manufacturer on Nov.16 by a 9-3 jury vote. Considering that the verdict occurred in Oakland, California, gun rights advocates should be encouraged that it was obtained with such a wide margin.
Still, evoking the Terminator’s ominous "I’ll be back!" signature line, Dix family attorney Nancy Hersh predicts "I think we'll win the next one." While I normally cast a skeptical eye at claims coming from the gun ban camp, in this case I believe her, at least the part about there being a "next one".
In addition, the City of Chicago has entered the civil action feeding frenzy, joining Cook County in filing a $433 million lawsuit against legal gun manufacturers and retailers under the pretext that this will stop illegal gun sales. Rather than backing up their claims that 12 suburban gun shops sold weapons illegally by enforcing existing law and filing corresponding criminal indictments, the political establishment has instead decided to pursue its true motivations– all 433 million of them.
Meanwhile, not one gangbanger will have been disarmed, not one drive-by shooting or stickup or execution murder will have been prevented, and not one criminal will have been held accountable for his violence through this action. But you must admit, it sure gets headlines.
"We have not gone fighting people who are hunters, who are gun collectors, the right of someone to bear arms in their home," feigns Mayor Richard Daley, conveniently not admitting that Chi-Town honors this "right" by banning handguns not registered prior to 1982.
"We're not fighting that," he reiterates out of one side of his mouth, while proposing further statewide and federal curbs on lawful gun ownership from the other. Honest. No, really.
"My police officers are outgunned by the gangs who have guns that can penetrate not just police vests but police cars," complains Chicago Police Superintendent and Daley accomplice Terry Hillard in a strategically-scripted sound bite. Remembering the mayor’s pledge not to "fight" hunters, how many of you own rifles that won’t penetrate Kevlar or a car door?
Make no mistake– Supt. Hillard knows full well that even a lowly varmint-caliber round can penetrate these objects, and a game round suitable for deer probably won’t even stop to blink. But he’s counting on the general public not knowing this, and ignorantly abetting the surrender of their (and your) rights in the name of "reasonable gun control laws."
But for now, let us leave the Windy City and return to another example of what the radical anti-defense collective calls "reasonable"– legislation mandating "smart gun" technology. Colt has been working on a prototype electronic ring-activated firing mechanism based on research conducted by Sandia National Laboratories, and intends to field test these guns on police forces as the solution to cops being disarmed and killed with their own service weapons.
In fairness, because I am biased, I need to disqualify myself from this debate. I think that inhibiting a mechanism’s functionality can only result in diminished reliability, and would like to see seasoned cops speak out, and their unions refuse to allow their members’ lives to be endangered in the name of advancing some political or corporate hack’s career.
So rather than rely on opinions which admittedly further my agenda, I decided to obtain input from an expert.
Former Navy SEAL Ken Good is director of the Sure-Fire Institute. He is, in fact, an expert’s expert, providing weapons and tactics training to elite military fighting personnel, civilian law enforcement tactical specialists, and authorized security professionals.
He has been a pioneer in the development and refinement of "Force-on-Force Training", which "duplicates many of the factors that are experienced in actual combat. Students are trained to solve a wide range of fast-paced tactical problems as both aggressors and defenders….(through) the actual engagement of living, thinking, targets that return fire…with non-lethal projectile training weapons."
His curriculum vitae reads like a character’s from a Tom Clancy novel. Putting it bluntly, he can shoot, fight, free-fall parachute in, scuba dive out, blow things up, and otherwise deploy in jungle, mountain, marine, and urban environments. Yet, with candor typical of true professionals, he admits up front that "our staff does not know it all, nor have we ‘arrived’. We are in a constant state of learning and consider ourselves perpetual students."
As a quick aside, compare this to attitudes promulgated by, say, Charles Schumer or Sarah Brady, who would have you believe they know best what you are capable of being trusted with, and are prepared to impose their "expertise" on all of your defensive options, for all situations, now and forever, whether you like it or not.
I approached Mr. Good with two questions relevant to the "smart gun" issue:
Weapons retention: According to Sandia National Laboratories, "smart gun" technology is needed because one out of six police officers killed in the line of duty are shot in takeaway incidents, that is, disarmed and killed with their own service weapons. Why do you think this happens, and what is the best way to minimize such occurrences?
Smart gun technology/applications: Colt is developing a handgun which will only fire if its operator is wearing a ring that activates the gun via radio signal. They intend to field test this gun with police officers and then market it initially to police departments. What are the practical combat situations (i.e., "either hand" shooting) that should concern someone who may need to defend his life with this technology?
"I am slightly ‘unarmed’ on the topic," he responded, demonstrating the previously mentioned candor right out of the starting gate. But let me get out of the way, and let Mr. Good share with us the benefit of his experience.
"My first impression is that one out of six seems high. I know for a fact that in California, no officers were killed with their own weapon in the last six years. The issue of weapons retention was addressed twofold, hardware and software. Retention rigs were developed and deployed. Training was given to increase awareness and improve defenses against attempts to disarm the officer.
"If a weapon is taken from an officer, I personally believe it is primarily a training issue. Most folks seem to try and solve most tactical problems through some sort of hardware improvement without looking at the core system. The human operator should be the primary system to be improved upon. Many departments are dangerously low in their delivery of ongoing advanced officer training. If an officer cannot be trusted to deploy and keep his or her weapon, please don't give them one in the first place!
"Let's hope the batteries or other component on this new system don't fail in a critical moment. Mr. Murphy will be lurking.
"Some immediate questions:
"Are all my weapons going to be linked to me?
"If I have a shotgun in the vehicle and want to give it to another officer arriving at the scene or in the middle of a fluid tactical situation will I be unable to redeploy the weapon?
"If my weapon goes down, will I be able to use another officer’s?
"Will I be able to use a downed officer’s weapon if mine is no longer functioning?
"Will I be able to use either hand?
"Or will it be activated if I am in close proximity? (Per a Sandia press release, the ring must be within "inches" of the gun- DC) If it is in close proximity, then the suspect can deploy it on me at close range.
"How big is the ring? Most tactical folks remove rings due to the propensity to rip fingers off if you slip and attempt to regain your balance and get hung up by the ring. I have read numerous articles detailing this hazard.
"I am skeptical as to the effectiveness of this strategy. Once an officer is down and loses his or her weapon, a disable switch is not the answer....elevated skills are required to survive this encounter in a multi-threat environment."
Well, Mr. Schumer, Mrs. Brady? Do you have any superior knowledge you would care to add to this assessment?
The purpose of this and the previous article has not been to disparage all devices meant to enhance (but never substitute for!) safe gun handling and storage practices. In addition to providing them with age-appropriate training, I store firearms locked away from my children, and use a variety of options appropriate to the circumstances of the moment; in some cases, this means keeping them in a safe, in other instances, I have used cable locks and other devices. But if one ever feels compelled to keep a firearm in a deployment-ready state, they must also realize that anything which delays access and use also delays defensive utility.
In these cases, there can be no "one-size-fits-all" approach, and no amount of legislative posturing or courtroom wrangling will ever alter this simple truth. Anyone who relies on gadgetry as a substitute for responsibility, accountability, judgment and training in the use of firearms is courting tragedy.
But for the gun controllers, that’s not all bad– because based on results, each tragedy provides a new opportunity to exploit, a new press conference to hold, a new law to enact, or a new lawsuit to file. They’ll propose further restrictions under the bald-faced pretense that it’s "a good first step." They won’t tell you that there are already over 20,000 gun laws on the books at the federal, state and municipal level that are consistently ignored by all but the law-abiding.
"A good first step…" the clueless segment of our victim pool populace will drone back at the proposal of law number 20,001.
"One helluva good first step– keep ‘em coming!" agree illegally armed criminal predators, emboldened with each new law that renders their prey increasingly vulnerable…
EPILOG:
At this writing, the New Orleans based Castano Group, a collective of legal firms which spearheaded the litigation assault on tobacco companies, is gearing up to represent cities against the gun manufacturers.
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