This is the third article in a series addressing civil tort liability as a potential remedy for outrageous anti-community behavior. To read the previous articles, click here.

This year, the governors of Texas and California went to war in a tit-for-tat exchange of legislation bringing the hotly contested political issues of abortion rights and gun control into the realm of civil tort liability. In my previous article, I analyzed they key legal issues involved in the Texas abortion ban. Here, I discuss California’s retort and the legal concept of “the private right of action.”

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Act 2: California takes the initiative

The overtly political nature of the Whole Women’s Health v Jackson Supreme Court majority was widely noticed, including in “Blue States” hungry for more rational control of automatic weapons. If those who govern Texas can limit its vulnerability to lawsuits and achieve its goal by delegating to vigilantes the ability to file lawsuits prohibiting abortion, why can’t a blue state take a similar initiative? California did.

With leadership from Governor Gavin Newsom and a willing following in both houses of California’s legislature, it passed its California Firearm Industry Responsibility Act (CFIR) and other legislation, allowing private civil litigation from any California resident who has suffered as a result of illegal actions of gun manufacturers or dealers.

There was no secret that the act was modeled after what its proponents feel is the unconstitutional Texas statute. But if the Supreme Court will allow Texas to intimidate rights to access to abortion, California reasoned that the court has established the precedent which will allow similar citizen enforcement against gun manufacturers whose product kills or maims citizens in California.

The concept is sometimes called “the private right of action.” It specifically allows laws to be enforced by citizens, not only governmental entities. Many statutes have, or have been interpreted as having, private rights of action. In Arizona, the Consumer Fraud Statue, ARS 44-1521 was interpreted in 1974 as having such a right allowing direct citizen civil litigation. The Arizona anti-racketeering (RICO) act passed in 1978 had a private right of action which included mandatory tripling of RICO damages plus attorney’s fees.  The tactic was used by plaintiffs’ lawyers, myself included, to make claims against banks, insurance companies, and securities dealers for creating or furthering schemes or artifices to defraud.

The effectiveness of the remedy was noticed by the establishment powers which, over strong citizen objection, repealed the most important parts of the act which enabled strong enforcement by citizens. The remaining statute still appears in a weak form. The incentives to citizens harmed by fraud to use Arizona’s RICO statute were gutted.

But I divert. California’s statute allows for suits by any California resident, including California’s Attorney General, City Attorneys, county counsels, and everyday people who have suffered harm in California because of a firearm industry member which has violated the law’s prohibitions. The statute requires that a firearm industry member establish, implement, and enforce reasonable controls and take reasonable precautions to not sell, distribute, or provide a firearm related product to a downstream distributor who fails to establish similar precautions.

The new legislative enactments allow awards of at least $10,000 per weapon in addition to legal fees for plaintiffs who have suffered as a result of the actions of anyone who has imported, distributed, manufactured or sold an assault-style weapon, .50-caliber rifle, so-called “ghost gun” without serial numbers or banned parts that can be used to build firearms.

The California statute also states that it will be construed in a manner consistent with the requirements of the California and United States Constitutions. The California statute is far more within the tradition of civil law and enforcement by private right of action than the Texas law which will someday be reviewed, but is in effect until that time.

If the Supreme Court invalidates the process used in the Texas law, the California law may be recognized as outside of constitutional boundaries.

 

California’s concept is sound, will be rejected, but is worth the effort

Supreme court pronouncements are not final because they are right. They are “right” because they are final. There are too many victims of automatic weapons. They, or their families, or citizens intimidated by aggressors who can parade with weaponry threatening fellow citizens, deserve a civil remedy to deter the irresponsible aggressor. But there are industry protective statutes from congress and states. For decades, Congress has prevented funding research into the violence caused by the weapons industry in connection with crime in the United States.

The status of the Second Amendment has grown like a poisonous weed. To some it is the core constitutional protection. Even those who push for reasonable change often begin their argument with, “I am a gun owner and I support the Second Amendment.” This is a total reversal from the commentary of former Chief Justice Warren Burger who described the Second Amendment as “one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have even seen in my lifetime.” Burger’s opinion was that it never was meant to have anything to do with individual gun rights.

The constitution has no language which the originalists or anybody else can point to which indicate that the right to profit from manufacturing weaponry of war by marketing them to 18-year-olds in the general public shall be sacrosanct.  The correlation between profiteering in weapons and the frequency of innocent victims is so clear. Does the right to profiteer with outrageous cruel lies from Alex Jones, and the right to sell automatic weapons for profit and be protected from liability against traditional torts rule the day? Perhaps. But that does not mean that they will rule the day in the future.

Header image: Governor Gavin Newsom addresses a news conference where he signs SB 1327 into law on July 22, 2022 in Los Angeles, California. David McNew/Getty Images

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