Investigating Gun Defect Cases

INVESTIGATING GUN DEFECT CASES

BY || Thomas Scolaro

As of 2017, there were more than 393 million civilian-owned Gun manufacturers firearms in the United States.1 Much like the hundreds of millions of cars on the road, some contain defects, especially when dealing vigorously defend gun defect with such large-scale numbers. A gun should never fire unless the trigger is deliberately pulled. And one that fires without a trigger cases, but with careful pull—for example, when dropped to the ground or adjusted in a Awaistband—is a defective mechanical device no different from a investigation and intake, you car that accelerates without the operator stepping on the gas pedal. The 2005 passage of the Protection of Lawful Commerce in can determine whether Arms Act (PLCAA) limited gun manufacturers’ civil liability for harm caused by the “criminal or unlawful misuse” of firearms or products liability or ammunition.2 But even when defective guns cause injuries outside of this context, gun manufacturers often try to avoid responsi- negligence claims apply. bility by arguing that the gun operator is the responsible, negligent agent. Today, people injured by gun defects that lead to unintended discharge typically must use ordinary principles of products liability and negligence to hold manufacturers accountable.

42 June 2019 || Trial Recognizing Gun Defects In a defective gun, these firing mecha- nisms can initiate without a deliberate trigger pull. This article focuses on unin- tended discharge caused by two specific issues: trigger defects and de-cocker mechanism defects. It is important to note that only seven states and the District of Columbia have passed laws regulating gun safety and design standards.3 Among them, only California, Massachusetts, and New York require specific safety features and that handguns pass a drop test and a firing test.4 There are no federal stan- dards for firearm design.5 Lack of trigger safety. A trigger safety is a small lever that protrudes from the trigger lever. It blocks the movement of the trigger unless the safety is pressed as the trigger is being pulled. This addresses a common defect among pistols: that inertia can cause the trigger to move when the pistol is dropped. In other words, without a trigger safety, when a dropped pistol hits the ground, its internal parts keep moving backward when it lands, and this can cause the trigger to pull itself due to inertia. Picture something similar to whiplash caused by a car crash. The inertia pull of the trigger eliminates the To start, it is essential to understand primer, and fire the cartridge. The bullet firing pin block feature intended to keep how a gun works and can misfire. When then separates from the cartridge and the gun from firing when dropped and a round is fired, the primer (responsible is discharged through the gun’s barrel. allows the sear fully or partially to move for initiating the propellant combustion A firing pin block is a mechanical block to release the striker. that will push the projectile out of the gun that obstructs forward travel of the A similar potential defect exists barrel) located at the back of the round firing pin. The firing pin block clears the among certain hammer-fire revolvers. must be hit by a “striker” or a firing pin, obstruction to the pin as the hammer or If the revolver is not designed and manu- depending on the gun. Semiautomatic striker is released. factured with a “transfer bar safety” pistols use a cylinder mechanism as a In contrast to semiautomatic guns, (which mechanically aligns itself with striker, which discharges a round using revolvers use a spring-loaded hammer the hammer’s travel, acting like a firing a spring-loaded rod. When a striker-fired mechanism, which discharges a round pin block) or a “hammer block safety” pistol is cocked, the striker is pulled back through contact with a loaded cartridge (similar to a firing bin block when the against the spring pressure and held or a firing pin driven into the cartridge trigger is pulled), then the gun can back by a fire-control component called primer. Some revolvers do not have an discharge when dropped on the external a “sear.” When the trigger is pulled, the ­intervening firing pin: Upon pulling hammer. Because the external hammer sear releases the striker, allowing it to the trigger, the spring-loaded hammer rests on the back of the firing pin, which spring forward, impact the cartridge’s impacts the primer directly. rests on the back of the cartridge, any

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abrupt contact with the external hammer can cause the gun to discharge without a deliberate trigger pull. Poor striker and sear contact. Certain manufacturers produce their pistols by metal injection molding, which causes rounded, lumpy surfaces that can be seen under microscopic examination. These surfaces can result in poor contact so that the connection A GUN THAT FIRES WITHOUT A TRIGGER PULL IS A between the striker and the sear is easily jarred off if the pistol drops and does not DEFECTIVE MECHANICAL DEVICE NO have a good safety. De-cocker mechanism defects. The DIFFERENT FROM A CAR THAT ACCELERATES WITHOUT concept is simple: To fire a cartridge, the primer located at the back of the round THE OPERATOR STEPPING ON THE GAS PEDAL. must be hit by the striker or the firing pin, depending on the type of gun. When a gun dissipate this doubt about what caused recordings, and fire rescue reports. Talk is cocked, the striker or firing pin is held the gun to fire, investigate thoroughly to available witnesses in person or via against an active spring that is released by early in your case evaluation. video. Many times, the discharge incident pulling the trigger. In other words, pulling Question a potential client on his or happens without independent witnesses, the trigger will release the spring, which her familiarity and experience with guns so corroborating police reports are in turns releases the hammer or striker, and on the sequence of events that led critical. The interview transcript of which moves forward and hits the primer. to the discharge. Ask detailed questions your client is the most crucial piece Commonly found in pistols, a de-cocker such as: of evidence. It will confirm or deny mechanism allows the gun user to release Was there a round in the chamber? whether his or her description of the the spring tension on a cocked striker Was the safety on? sequence of events to officers matches or hammer without reaching into the Was the gun holstered? Was it an the description given to you during chamber and impacting the round. This after-market holster?7 intake. You must find every inconsistency is accomplished by the firing pin block. What was his or her hand position? as early as possible. Request the results Pistols that feature this safety mechanism Finger position? of any gunshot residue tests and the have a small button usually located above How was the gun being carried? complete medical examiner’s report if the trigger that, when pressed, de-cocks When was the last time the gun was someone was killed. the gun without firing. cleaned? How was it cleaned? Acquire the gun. This is a must. Over the years, guns firing without How was the gun stored? Usually, the gun remains in the a trigger pull due to de-cocker mecha- How was it maintained? Ever responding police department’s posses- nism failures have prompted lawsuits repaired? Ever disassembled? Ever sion until its investigation is completed. and recalls.6 The most common dropped? Make sure the gun comes with a problem occurs when the user pulls the What was the injury pattern? (You documented and video chain of custody.8 de-cocking lever and when the hammer will want to determine this was Expect the defense to attack how the gun is lowered, the firing pin block fails to consistent with an unintended was stored after it was released to you engage completely, allowing the firing discharge event.) and to argue that the lack of a verified pin to release forward and fire the cham- Run through the answers until you are chain of custody caused the defect. bered round. clear on the sequence of events. Having Research the manufacturer and a good factual understanding of what model. This is a major part of your eval- Case Intake and Evaluation happened will you help you better vet uation. Start with the internet and gun When facing unintended discharge the case. blogs, learn about the defective product cases, manufacturers typically argue that Review evidence. Corroborate your at issue, and read or watch gun reviews.9 your client is at fault and that the claims intake with all available police reports, Many manufacturers have issued against them are without merit. To interview transcripts, photographs, 911 after-market warnings for and even

44 June 2019 || Trial D-KEINE/GETTY IMAGES Holding Corporations Accountable || Investigating Gun Defect Cases

recalls of certain gun models.10 Taurus inspection of the firearm can shed light the pistol is disassembled and examined. and Sig Sauer are facing multiple prod- on sear marks, contact marks, relative A ballistics expert also should be ucts liability lawsuits stemming from distances between parts, or quality and part of any litigation team to handle drop-fires involving several of their durability of components chosen by reconstruction of the discharge. The pistol models.11 the manufacturer. Before the pistol is defense will counter each defect claim If the manufacturer issued a warning disassembled, the expert should have by saying a trigger pull—whether or recall on the gun at issue in your case, access to X-ray and CT scan machines intentional or negligent on the plaintiff’s it’s likely that one or multiple adverse and an electron microscope as part of part—caused the discharge. You must events preceded it, even if the recall any sound examination. A complete forensically establish that the blood notice states that no adverse event was inspection should consist of function spatter pattern, gunshot residue analysis, reported. Researching those adverse testing, including a trigger pull force and point of entry angles all support that events will uncover additional facts to test; a safety button force actuation a defective gun caused the unintended investigate, more witnesses to interview, test; a field strip; and disassembling the discharge. and potentially more guns with similar slide and frame internal components for Knowing how firearms work, how defects to inspect. This evidence can help microscopic examination.12 Your expert to recognize different types of defects, alleviate issues that might arise from not can draft an inspection protocol based and what evidence you need during the having an independent witness. on the areas you should focus on during intake stage will help you ask the right the inspection. questions when a potential gun defect Experts Never conduct an inspection of case comes across your desk. Make sure your expert has a comprehen- the pistol, not even a basic field strip, sive mechanical engineering and metal- without defense counsel present. The Thomas Scolaro is a partner at lurgical background. This expertise is inspection should be done pursuant to Leesfield Scolaro in Miami. He can be critically useful so that the microscopic a clear joint protocol agreed on before reached at [email protected].

The plaintiffs alleged that the threatens the public’s health, safety, and A STEP FORWARD IN GUN defendants negligently entrusted to the morals has long been considered a core MANUFACTURER LIABILITY public a weapon that was not suitable for exercise.”6 The court found that the mainstream commerce since it was plaintiffs have standing to proceed on their By Kate Halloran designed for military and law enforcement CUTPA claims on the limited theory that the use. They also alleged a violation of the defendants marketed the XM15-E2S for Connecticut Unfair Trade Practices Act violent, criminal purposes and that this The increasing use of semiautomatic (CUTPA),3 arguing that the defendants marketing contributed to their injuries. firearms in mass shootings has raised marketed the assault rifle differently from Negligent entrustment. Both courts questions and led to intense debate about other weapons to highlight its lethalness found that this exception did not apply whether gun makers and sellers should be and firepower and continued to sell it because the plaintiffs did not allege that the held accountable for their role in placing despite overwhelming evidence that the defendants knew or had reason to know that these weapons into the market. The weapon was unfit for civilian use. a “direct entrustee”—namely, the Protection of Lawful Commerce in Arms Act In 2016, the state trial court dismissed purchaser—of the firearm was likely to use it (PLCAA) immunizes firearms manufacturers, the claims, finding that the negligent in an unsafe manner. The plaintiffs distributors, and sellers from liability when entrustment exception to the PLCAA did not advocated for a broader reading of negligent third parties use their products to commit apply and that the plaintiffs lacked standing entrustment to account for the reasonable crimes.1 But this federal law is not a to bring the CUTPA claims because they foreseeability that a dangerous instrument complete bar to recovery against gun were not in a direct business relationship like an assault rifle could land in the hands makers; the PLCAA includes limited with the defendants.4 The Connecticut of someone who would misuse it, but the exceptions.2 Supreme Court affirmed 4-3 the dismissal court refused to expand the scope of After the 2012 mass shooting at Sandy of the negligent entrustment claim, finding negligent entrustment to include this Hook Elementary School in Newtown, Conn., that because the weapon at issue was legal category. that killed 26 people, most of them children, at the time, the defendants could not be Marketing. The XM15-E2S is nine victims’ families brought a wrongful liable for someone committing a crime with Remington’s version of the AR-15 (which is death action against the manufacturer, that weapon under the state common law similar to the standard-issue rifle the U.S. distributor, and retailer of the Bushmaster of negligent entrustment and the PLCAA.5 Army uses) and is designed to be XM15-E2S semiautomatic rifle used in the However, the court reversed dismissal of especially efficient and lethal. Features massacre. They based their claims on a the CUTPA claim, concluding that the PLCAA such as rapid fire with minimal recoil, novel legal theory using one of those does not override a state’s police powers, high-capacity magazines, high muzzle exceptions—negligent entrustment. of which “the regulation of advertising that velocity, and lightweight portability make

46 June 2019 || Trial Notes 5. Id. 9. See The Firearm Blog, https://www. 1. Aaron Karp, Small Arms Survey— 6. Because the Consumer Product Safety Act thefirearmblog.com/blog/; Guns America Estimating Global Civilian-Held Firearms excludes firearms, no agency has the Digest, https://www.gunsamerica.com/ Numbers, 4 tbl.2 (June 2018), http:// authority or mission to force a recall or digest/; Jerking the Trigger, http:// tinyurl.com/ybw3qh9v. even establish statistics on recalls based on jerkingthetrigger.com/; Lucky Gunner 2. 15 U.S.C. §7901(b)(1) (2019); see 15 U.S.C. defective firearms. This is why statistics Lounge, https://www.luckygunner.com/ §7903(5)(A)(v) (prohibited civil liability pertaining to gun defects do not exist. The lounge/; Pistol-training, http://pistol- actions shall not include an “action for Violence Policy Center keeps a list of gun training.com/; The Truth About Guns, death, physical injuries or property damage product safety notices on its website: https://www.thetruthaboutguns.com/. resulting directly from a defect in design or http://vpc.org/regulating-the-gun- 10. See U.S. Consumer Prod. Safety Comm’n manufacture of the product, when used as industry/gun-product-safety-notices/. Recall List, https://www.cpsc.gov/Recalls; intended or in a reasonably foreseeable 7. Gun manufacturers typically will offer Violence Policy Ctr., Gun Product Safety manner, except that where the discharge of custom-made holsters designed for their Notices, www.vpc.org/regulating-the- the product was caused by a volitional act firearms. If your client’s handgun was in a gun-industry/ that constituted a criminal offense, then one-size-fits-all holster when it uninten- gun-product-safety-notices/. such act shall be considered the sole tionally fired, the defense will point to 11. Heffler Claims Grp., Taurus Class Action proximate cause of any resulting death, issues such as lack of protection from the (2019), www.tauruscartersettlement. personal injuries or property damage”). elements, unnatural and increased wear com/; Sig Sauer, Sig Sauer Safety Warning 3. Giffords Law Ctr., Design Safety Standards and tear created by a wrong-sized holster, and Recall Notice (Sept. 15, 2017), www. (2018), http://tinyurl.com/y2d2xanv. The or the lack of control when the plaintiff sigsauer.com/press-releases/sig-sauer- states are California, Hawaii, Illinois, manipulated the holster or unholstered the safety-warning-recall-notice/. Maryland, Massachusetts, Minnesota, and gun. To my knowledge, gun manufacturers 12. Very few facilities have the equipment to New York. exclusively design and manufacture 100 CT scan a pistol. The best and most 4. Id. Firing tests confirm that a firearm does percent of the parts used in their products. comprehensive CT scanning and not malfunction after repeated firing and This has to do with trade secrets in a very mapping of every pistol component is at does not have cracks or other defects after competitive industry. North Star Imaging (http://tinyurl.com/ firing. Id. Drop tests involve dropping a 8. Videotape every interaction with the gun, y5zmo4qe), which has labs in California, firearm onto a hard surface from a including its wrapping, securing in a box, Massachusetts, and Minnesota and specified distance to confirm that it does storing, and unboxing. You must not open provides 3-D images of every gun not fire when dropped. Id. the door to a chain of custody defense. component in a non-destructive manner.

the rifle capable of inflicting a great slate here. You don’t get to a marketing be interpreted broadly because Congress amount of damage in a short period of campaign like they have had targeting did not preface it with language such as time. The plaintiffs contend that the young men that wasn’t well thought out. “directly” or “expressly.” It further noted defendants improperly made these deadly, These families weren’t the target audience that the exception specifically mentions military-grade capabilities a prime selling for Remington. The Sandy Hook shooter marketing and that at the time that the point in their marketing. This included was their target. He was in the crosshairs PLCAA was passed, no federal statute advertising the gun with images of soldiers of their marketing campaign, and he knew a governed the marketing of firearms that on combat missions and highlighting the lot about what that gun could do.” would preempt a state law. military-grade performance of the weapon. The court rejected the defendants’ The viability of the plaintiff’s argument On the standing issue, the court contention that the CUTPA claim was a will now be tested in court. Remington has determined that “a party directly injured by strict products liability unreasonably indicated that it intends to file a petition of conduct arising from such advertising can dangerous claim masquerading as a trade certiorari with the U.S. Supreme Court. But bring an action pursuant to CUTPA even in practices violation that would be the ruling is an important step forward in the absence of a business relationship with preempted. The complaint did not contain holding gun makers accountable, according the defendant.”7 The plaintiffs based their traditional products liability allegations, to Koskoff. “The families’ goal has always CUTPA claims on two grounds: first, that the such as inadequate warnings, and the been to shed light on Remington’s XM15-E2S had no legitimate civilian use plaintiffs offered a sufficient basis for calculated and profit-driven strategy to because of the extreme risks and likelihood advertising violations, the court found. expand the AR-15 market and court that it would end up in the hands of The court also extensively reviewed the high-risk users, all at the expense of someone who would misuse it and therefore PLCAA, its legislative history, and whether Americans’ safety. This decision is a critical it should not be in the stream of commerce; the CUTPA would override PLCAA’s step toward achieving that goal.” and second, that the defendants engaged in protections for the defendants. It specifically “unethical, oppressive, immoral, and considered the PLCAA’s “predicate Notes unscrupulous” marketing and advertising of exception,” which provides for civil liability 1. 15 U.S.C. §§7901–7903 (2005). 2. 15 U.S.C. §7903(5)(A)(i)–(vi). the weapon such that it encouraged unlawful when “a manufacturer or seller of a [firearm] 3. Conn. Gen. Stats. §41-110a et seq. (2011). use of the gun. It was on this second ground knowingly violated a State or Federal statute 4. Soto v. Bushmaster Firearms Int’l, LLC, 2016 WL that the court ruled that the plaintiffs’ case applicable to the sale or marketing of the 2602550 (Conn. Super. Ct. Apr. 14, 2016). could proceed. [firearm]” that proximately caused a 5. Soto v. Bushmaster Firearms Int’l, LLC, 2019 WL Bridgeport, Conn., attorney Josh Koskoff, plaintiff’s injuries.8 The court focused on the 1187339 (Conn. Mar. 19, 2019). 6. Id. at *66. who represents the plaintiffs, explained, meaning and scope of the term “applicable” 7. Id. at *88. “We’re not starting from a completely blank and ruled that the predicate exception can 8. 15 U.S.C. §7903(5)(A)(iii).

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