Bump Stocks and Product Liability

TASA ID: 4009

The recent tragic mass shooting in Las Vegas has unhappily introduced us to “bump stock” devices, inexpensive devices whose sole purpose is to convert a semi-automatic rifle to one which then matches the rapid firepower of fully automatic military weapons, shooting a full magazine in seconds.

Although there is a law which bans fully automatic weapons, these devices exploit a loophole in how the law is written.  They are apparently technically legal.  Many critics are arguing that the law needs to be changed to outlaw bump stock devices.  The NRA is resisting such a ban.  

This paper will not deal with those legal arguments, but will instead analyze the bump stock device within the framework of the product liability laws as they now already exist.  I am not an attorney.  I am instead a mechanical engineer who has for almost 40 years served as an expert witness in personal injury product liability lawsuits involving hundreds of different products.  It was never a claim that the product at issue in these cases was illegal.  Instead, it was claimed that the product was defective and unreasonably dangerous and a proximate/blamable cause of the accident.

The determination of whether a product is unreasonably dangerous is made by a weighing of a risk/utility balance.  How does the social good produced by the device balance against whatever social harm the device produces?  Many people are killed or seriously injured every year in automobile accidents, but society accepts that the benefit to society coming from automobiles far outweighs those tragedies.

The risk, the harm to society, from bump stock devices is the death, serious injury and traumatic harm to hundreds of innocent people (men, women and children) who have no ability to safeguard themselves from this harm.   The utility of bump stock devices, the benefit to society, is at best miniscule.  This is not a device for hunting, it functions solely to produce in effect a fully automatic rifle.  The inventor of the bump stock device says that he created it because he liked firing off rapid bursts of bullets at a shooting range and a physical problem with his hand made it difficult for him to repeatedly pull the trigger quickly.  Fully automatic rifles were prohibitively expensive.   The social utility of his device is that it made it much easier for anyone to fire off rapid bursts of bullets.  The existence of laws banning fully automatic rifles seems to demonstrate that society has already made this risk/utility calculation and determined that fully automatic rifles fail this risk/utility test.  Surely a device which does no more than economically create what is in effect a fully automatic rifle must also fail that risk/utility test.

Although I am not an attorney, it seems quite clear that the estates of those who were killed in Las Vegas and those persons who were physically injured should have a viable caused of action against the manufacturers, distributors and sellers of these bump stock devices since these devices are clearly unreasonably dangerous.  In addition, those thousands who were not physically injured but were traumatized by being present in the zone of danger while shots were being fired also would seem to have a viable cause of action.

A defense sometimes offered by defendants in product liability cases is a claim of misuse.  In the Las Vegas shooting, defendants may claim that it was a misuse of the bump stock to use it to shoot people.  The response is that manufacturers must design for “reasonably foreseeable misuse.”  Although it may well be that prior to the Las Vegas shooting there may not have been a known instance of anyone using a bump stock device to shoot a person, surely it should have been easy for manufacturers and sellers to foresee that this might well occur.  This potential for such catastrophic misuse is exactly why fully automatic rifles are illegal.

Stores are reporting increased sales of these bump stock devices since the shooting.  Hopefully a class action lawsuit against the manufacturers, distributors and sellers of the devices involved in the Las Vegas shooting will chill those sales.

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

This article may not be duplicated, altered, distributed, saved, incorporated into another document or website, or otherwise modified without the permission of TASA. Contact marketing@tasanet.com for any questions.

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