Capital Review

Last year, the Colorado General Assembly demonstrated the good sense to pass Senate Bill 115, recognizing that property owners are not liable for actions committed on their property by criminals. It didn’t matter, legislators agreed, if the property owner operated a controversial business. Ultimate responsibility for harm rests with the person who pulled the trigger.

This bipartisan legislation, which passed the Senate 34-0 and the House 64-1, came in response to a lawsuit arising from the 2015 shooting at a Planned Parenthood facility in Colorado Springs. A 2021 shooting at a Boulder King Soopers provided further context, re-assuring legislators that it is unreasonable to hold any business responsible for, in the words of Justice Melissa Hart, “the irrational actions of a mass murderer.”

Lawmakers wisely concluded responsibility for criminal violence rests with the perpetrator and shouldn’t fall on property owners just because they may have “deep pockets.”

Less than a year later, some legislators now propose that Colorado turn this logic on its head in order to make another controversial industry — firearms manufacturers and retailers — liable for others’ irrational actions. This is akin to holding car manufacturers responsible for drunk drivers or, worse, for a deranged individual who uses a vehicle to run down pedestrians.

Guns are by definition a “deadly weapon” that citizens have the right to use for self-defense, hunting, target practice and other legitimate, lawful activities. In self-defense, firearms are considered “the great equalizer,” enabling a person of small stature and limited strength to fend off a powerful attacker. Sometimes that defense requires actual use of deadly force – a legitimate, lawful purpose for which firearms are designed. It would be irrational for Colorado law to authorize lawsuits against a legal product that functions as designed.

Senate Bill 168 would repeal an existing law that acknowledges that firearms are inherently dangerous and so protects sellers and manufacturers from lawsuits except when their product is defective.

The bill would allow sellers and manufacturers of firearms to be sued for the unlawful actions of a third party. It sets up a list of ill-defined requirements that firearms dealers and manufacturers are expected to follow. If an anti-gun activist lawyer can convince a jury that, in perfect 20/20 hindsight, someone in the chain of commerce violated any one of these requirements, then SB 168 creates a legal presumption that the violation — rather than the actual shooter — is the “proximate cause” of harm.

That’s the opposite of last year’s common-sense legislation which recognized that the shooter is precisely the person responsible.

SB 168 would create a storm of liability that would make it nearly impossible for anyone involved in legal gun sales to obtain insurance. Reputable manufacturers of guns and ammunition would stop selling their products in Colorado to avoid liability. That would also make it impossible for law enforcement to buy reliable guns and ammunition, which could be icing on the cake for some #DefundThePolice progressives.

This bill amounts to an abuse of our court system by lawmakers who don’t like guns and want to unleash a swarm of lawsuits upon already heavily-regulated businesses that manufacture a legal, popular product. Honest citizens will be punished despite having done nothing wrong.

Understandably, lawmakers are desperately searching for elusive solutions to the tragedy of mass shootings. Even “red flag laws” have not been especially effective in proactively stopping potential mass shooters, so proponents now seek to harass gun manufacturers out of business through endless litigation. That may feel good in the heat of the moment, but this bill will do nothing to stop criminals or the mentally ill from inflicting harm on innocent Americans.

Mark Hillman served as Senate Majority Leader and State Treasurer. He is executive director of Colorado Civil Justice League.