Imagine the “telum.” In 2006, telum in the United States killed roughly 31,000 people and injured an additional 71,000. From 1965 to 2004, aside from motor vehicle accidents, telum was the leading cause of injury-related death in the United States, taking the lives of 1,250,803 people. Throughout its history, America has sought to protect its people from environmental and social forces that unduly threaten health and safety. Whether risks to the public’s health arose from unsafe working conditions, infectious disease, or dangerous products, governments in the United States have executed their duty to mitigate the harm through regulation. Appropriately, telum (hereinafter “firearms” or “guns”) are subject to similar intervention.
Regulation to promote public health has taken many forms: mandatory disease intervention, attempts to deter risky behavior through conditional funding and excise taxes, categorical bans on dangerous products, and regimes that ensure safer product design to name a few. Litigation has also served as a crucial regulatory mechanism. Some of the earliest public health legal interventions were lawsuits seeking the abatement of certain activity deemed to be a public nuisance. More recently, a multistate lawsuit led the tobacco industry to institute measures aimed at reducing smoking, including restrictions on marketing, lobbying, and youth access.
Firearms obviously impact the public’s health and, accordingly, are regulated in the United States. Nevertheless, the 30,000-plus deaths and 70,000-plus injuries guns cause annually demonstrate that mitigating the harmful effects of guns requires greater intervention than is provided for under the existing regulatory regime.
Assessing the epidemiology of gun violence—its causes, incidence, and distribution—is essential to addressing the public health impact of firearms. Researchers have found that firearms disproportionately affect the health of certain populations, and that particular characteristics of these populations contribute to the disparate impact. Notably, in these populations illegally owned and unnecessarily dangerous firearms contribute disproportionately to gun morbidity and mortality. Additionally, many of the firearms impacting high gun-violence areas, where regulations are typically stronger, were originally sold in regions with weaker gun regulations.
In an attempt to fill the regulatory gaps which result in firearm design and distribution that negatively impact public health, local and state governments as well as individuals have sued firearm manufacturers and dealers. Plaintiffs typically claim that defendants knowingly or negligently distributed and marketed firearms and/or manufactured unnecessarily dangerous guns. Often, plaintiffs allege that these activities create a public nuisance and seek an injunction abating the nuisance. The result has been an interesting intersection of law and public health.
In 2005, the atmosphere of gun industry litigation changed dramatically when Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA). The PLCAA prohibits pending and future civil lawsuits against the gun industry, with several exceptions. This Comment will focus on one of these exceptions, called the “predicate exception,” which permits lawsuits alleging violation of a statute “applicable to the sale or marketing of [firearms].” Three recent appellate court decisions have examined whether a lawsuit alleging a violation of a state public nuisance statute falls within the predicate exception. The Second and Ninth Circuits found that the related public nuisance statutes were not applicable to the sale or marketing of firearms and dismissed those causes of action. The Indiana Court of Appeals, however, held that the Indiana public nuisance statute was applicable. The three courts arrived at their decisions differently, but their analyses share a common trait: the lack of a public health perspective.
This Comment will both (1) illustrate why a public health perspective should be included when addressing whether statutory public nuisance claims qualify for the PLCAA’s predicate exception and (2) demonstrate how a public health perspective would influence a court’s analysis. As will be shown, incorporating a public health perspective would lead to the reasonable and judicially sound conclusion that the PLCAA’s predicate exception exempts statutory public nuisance suits from federal preemption.
Before engaging in the statutory analysis, Part II.A discusses the necessity and utility of considering public health in legal decision making. This section outlines what law and public health scholar Wendy Parmet has coined “population-based legal analysis.” Premised on public health’s rich tradition as a fundamental legal norm, a population-based legal analysis provides the analytical tools by which legal decision makers can recapture this norm.
Part II.B discusses the public health impact of firearms. Part II.C provides background on gun industry lawsuits and the public health utility of gun industry litigation. It also looks at the public health tradition of public nuisance litigation. Lastly, it examines the PLCAA. Part II.D then outlines the three judicial decisions that have ruled on whether statutory public nuisance claims are exempted from the PLCAA by the predicate exception.
Part III.A argues that courts should incorporate a public health perspective in addressing this question because of the public health implications involved and the jurisprudential tradition of treating public health as a legal norm. Part III.B illustrates how a public health perspective can reveal the inherent public health objectives of the predicate exception. Part III.C demonstrates how a population-based perspective would expand judicial deliberations on the causes of gun violence to include the social determinants of gun morbidity and mortality. Part IV concludes by positing that a public health perspective would likely lead a court to determine that a statutory public nuisance action is not prohibited by the PLCAA.