You Know They Could Make Theft-Proof Guns If They Really Wanted To

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New York City's lawsuit against gun manufacturers is proceeding despite the Protection of Lawful Commerce in Arms Act, which was supposed to stop litigation that blames firearm makers for the criminal misuse of their products. U.S. District Judge Jack B. Weinstein (who has a history of bending over backward to acommodate legal assaults on the gun industry) says the city's suit falls under one of the act's exceptions, since it alleges violations of state nuisance law. The city argues that gun makers create a nuisance by inadequately supervising dealers and by selling too many guns in states with relatively loose rules, knowing some of those weapons will end up in jurisdictions (such as New York) where gun ownership is strictly regulated. But by way of justification for the lawsuit, Mayor Michael Bloomberg cited the recent death of a New York police officer who was shot with a gun that was legally purchased in Florida and subsequently stolen. Are gun manufacturers to be held responsible when people who buy their products fail to take adequate precautions against theft?

NEXT: While Republicans Retrench, Dems Dither

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  1. What if somebody steals the high fructose corn syrup from my kitchen, where it is used only sparingly in baking, and gives it to a kid who develops diabetes? Am I liable? Is the grocery store liable? Is the manufacturer liable?

    🙂

  2. First they came for big tobacco, next, big soda, next Martha Stewart.
    Surely they’re getting close to scraping the bottom of the barrel.

    (barrel! hee hee)

  3. Since they are so afraid of guns, why don’t we ask those in cities like NY and San Fran to disarm their police officers too!

  4. Well, it was the logical extension. “Since our highly restrictive gun laws have failed to have the desired effect, let’s blame other people’s laws.” If all of the US had strict laws, they’d just blame other countries, or something else, anything else, anything but reconsider their premises. How, for example, do New York politicians explain the fact that shootings in New York have fallen substantially over the same time period that they’re alleging that manufacturers have been irresponsible?

  5. Why ask why?
    Reality rarely enters the equation in the gun debate.
    Or calorie debate.
    Or fur debate.
    etc.
    etc.

  6. It falls outside the 2nd amendment, too, since we have the right to bear arms, not purchase them.

  7. So despite the fact that Congress has outlawed such actions a lawsuit should require a manufacturer to pay damages to New York because if the manufacturer had refused to send the Florida distributors all the guns they ordered no guns would be stolen and used to kill LEOs in NYC.

    So who should be sued if a biased Federal judge in defiance of Congress misuses a New York law to prevent interstate commerce between corporations in Massachussets and Florida?

    My head hurts. No wonder lawyers are the way they are.

  8. This is a good example of why the Congress needs to start using its impeachment power on judges. Congress spoke for better or worse and said these suits were not going to go forward and this guy is just going to ignore it and go forward anyway. He is not doing his duty of upholding the Constitution and the laws of the United States and he should not be a judge anymore. This is not a question of legal interpretation. It is a question of a federal judge thinking that he is more powerful than elected officials. Put one of those old bastards out of work and the rest of them would fall in line and this kind of crap would stop.

  9. U.S. District Judge Jack B. Weinstein . . . says the city’s suit falls under one of the act’s exceptions, since it alleges violations of state nuisance law. The city argues that gun makers create a nuisance by inadequately supervising dealers and by selling too many guns in states with relatively loose rules, knowing some of those weapons will end up in jurisdictions (such as New York) where gun ownership is strictly regulated.

    A brilliant performance! Let’s go to the scores:

    JPN: 9.80
    RUS: 9.65
    GER: 9.85
    USA: 9.90
    FRA: 9.80
    CHI: 9.80

    Weinstein has locked up the gold in Legal Gymnastics!

    – Josh

  10. Josh – impressive!

    the french judge didn’t downscore the us automatically!

    Thoreau: naughty. bad thoreau. naughty.

    Ruthless: GO TO YOUR ROOM. Dr. T’s spanking machine will be ready shortly. Liddie is done beta testing it. now go.

  11. Why do government agencies (like the city of NY) have standing in courts of law?

  12. Thoreau,

    so long as the liability exemption is narrowly drawn to “criminal misuse” of guns, I am either weakly for it or indifferent.

    This is not a counterexample to the approach I tried to establish on the other thread. This is an example of my approach (with the caveat that I have not read the law and sometimes the devil is in the details).

    That is right. Dave W. ain’t the kneejerk you thought he was despite his misgivings about things like the diabetes epidemic and flt 93.

  13. I know I’ll regret this, but…

    Flt. 93?

  14. https://www.reason.com/hitandrun/2005/06/dept_of_labor_e.shtml

    btw, I have beginning to have second thoughts about whether the towers were “pulled.”

  15. I hate these people. Every time I think this issue is dead, it comes back to life. Nothing turns me into a partisan hack faster than being threatened on this issue (yeah, yeah, Bloomberg is a Republican, whatever). My question is, since DC, Chicago, and San Fran have gone ahead and torched ownership outright with no constitutional fallout, why not just go there?

  16. Backing slowly away from the tinfoil and returning to the topic….

    So, what is your point about the gun lawsuits? You say either “weakly support” or “indifferent” on the law that shielded gun manufacturers from (most) suits. What sorts of suits should be allowed, and which shouldn’t be allowed?

  17. The Wine Commonsewer – Yeah, I’m made highly uncomfortable by the seemingly accelerating trend of governments attempting to get their way through civil suits. As I see it, no government agency should be able to file a civil suit unless it’s specifically victim of a tort. I have to admit that I don’t know a good way to write that specifically enough that it doesn’t either prevent them from filing some reasonable suits or still allow them to file some unreasonable ones, though.

  18. If it will make the question any easier, assume that we’re discussing state laws here, so we don’t have to get into issues of whether these product liability suits are a matter for Congress. Or, if you swing the other way on that, assume it’s federal. Whatever. Just assume that we’re discussing laws passed by the appropriate legislative body.

    Anyway, what sorts of suits would you want them to allow, and which would you be OK with barring?

  19. Thoreau,
    I believe that because guns are dangerous instrumentalities, that means all who handle them should have enhanced responsibilities for making sure that they are not misused. Just as an example, I think people should be more legallyresponsible to secure guns than they are legally required to secure other things, such as pillows (which can also be used to kill) or rope (which can also be used to kill) or hammers (which can also be used to kill). Traditional tort law does indeed impose responsibility that correlates with the degree of risk.

    Now ppl who worry about tort abuse, say that liability has gotten all out of control in the gun area. As you know, I am wary of this argument (there are a lot of corporate crybabies out there), but, at least for the sake of argument I am willing to entertain the idea that new liability limiting legislation is needed.

    I haven’t thought about this enif to formulate a rule yet, but when considering the liability shield my approach is that “good” suits (even ones that haven’t come up yet!) should definitely, definitely, definitely allowed to go forward. When figuring out what this means in the gun context, it helps to start thinking about hypotheticals (even improbable ones). I would expect the actual legislation to yield the result in all my hypos. Only then would I be assured that the exemption was narrowly drawn. So let’s start these “magical” hypos:

    1. Mfgr makes gun. Store sells gun to adult. Adult commits murder with gun. My preferred result: no liability (okay to pre-empt suit).

    2. Mfgr makes gun. Store sells gun to child. Child commits murder. Result: Liability (law must not foreclose this suit).

    3. Mfgr makes gun using the same safety mechanism they have been using (or slowly developing over decades). result: no liability.

    4. Mfgr makes gun, but decides not to include any safety so that the gun is more ready to use. Careless user accidentally shoots another to death. Result: liability.

    anyway, I could go on with these all day. And if they were paying me to write this liability exemptions I ***would*** (like few other people on the planet could. No unintended consequences under my statutes!

    Now, it is tempting to short circuit this process and say: guns good, of course I am for the law. Me, I remain skeptical that the proposed legislation would do better in getting better results than traditional tort law as adjudged against my hypos. And that’s the test. Nothing less.

    You can see how this dovetails with my concern about pre-empting suits against “food lobbying fraud” (for lack of a better term), just because we are trying to pre-empt suits by fat sluts (face it, they’re sluts!) cause they’re fat.

    On a more general note: T. I get the feeling that most of what you know about tort law comes from Reason. If this is true, be careful. that would be an intellectual vulnerability.

  20. should be: yeild the correct result

  21. 2. Mfgr makes gun. Store sells gun to child. Child commits murder. Result: Liability (law must not foreclose this suit).

    Who’s liable: Store or Mfgr?

    4. Mfgr makes gun, but decides not to include any safety so that the gun is more ready to use. Careless user accidentally shoots another to death. Result: liability.

    That shows a misunderstanding of what the word “safety” means with guns. First, some guns have a “safety”, a button or knob that you can push. When you push this button or knob, the trigger cannot be pulled. The gun can still go off. Why? Because no mechanical device is perfect. If I was at the range, and I saw somebody waving around a gun, I would report him to the staff. And if the idiot tried to say “But I have the safety on” it would make no difference. They’d kick him out.

    However, most handguns, including many venerable models as well as newer ones, have no such button. That doesn’t mean that the guns lack any sort of mechanical safeguards. My Sig, for instance, has a very heavy trigger pull (unless I cock the hammer). There are internal devices that, when functioning properly, make it impossible for the gun to fire if the trigger is not pulled. That doesn’t mean the gun can’t fire if dropped (any mechanical device can fail), but it does make such an occurence very unlikely.

    There’s also the option of storing the gun with a magazine in but no round in the chamber. Before you fire it you have to pull back the slide to chamber a round. That is another type of safety. Of course, revolvers don’t have that option.

    So, to say that a mfgr should be liable for injuries from guns with no “safety” betrays a lack of knowledge about guns: Different guns have different levels of mechanical safeguards, and it is your responsibility to choose one with mechanical safeguards that you are most comfortable using, making the tradeoff between ease of use and safety. It is also your responsibility to handle the gun safely regardless of how many mechanical devices you have, because any mechanical device can fail, and a negligent user can always do something that accidentally disengages the safety mechanism.

    Now, if a mechanical safeguard failed to operate in the manner advertised, and a careful user was injured, then I might contemplate a suit. But I’d have to know the circumstances.

    Finally, there is nothing more dangerous than any sort of policy that gives people the impression that the manufacturer is the one responsible for what happens with the gun. WRONG.

    I’ll let the people who have more firearms experience administer additional ass-kicking.

  22. I personally don’t see any difference between this and Roy Moore setting up a rock display. Why isn’t there the same level of outrage about this case of judicial activism?

    At the risk of losing my atheist decoder ring… Is it because gun control is politically correct, and being a fundie isn’t?

  23. I guess what it comes down to is that when I handle my gun I am very, very aware that I am handling deadly force. That doesn’t paralyze me, or make me so nervous that I make mistakes, but I am very, very aware of it. Gun ownership is a right that comes with HEAVY responsibilities. Any civil verdict that shifts those responsibilities from the owner to another party is a huge mistake.

  24. I would add that cars are just as “potentially” deadly as fire arms. I doubt anyone would seriously suggest holding auto mfgs liable for the criminal misuse of their products. Or when someone “accidentally” plows their car into a crowd.

  25. I read an article a few months back about some psycho student who spiked her teacher’s coffee with bleach as a “joke.” Maybe the teacher should sue the Clorox corporation?

  26. Oh Jesus, Dave’s on about guns…

  27. “I hate these people. Every time I think this issue is dead, it comes back to life. Nothing turns me into a partisan hack faster than being threatened on this issue…”

    Agreed.

  28. Thoreau,

    The only suits that should be allowed are the ones where the user of a gun is injured because the gun has been made defectively and explodes in their hand. The rest of them are a threat to our freedom and way of life. The idea that a company is responsible for a murder rather than the murderer is repugnant in the worst way. The idea re-enforces all of our most infintile instincts and puts us further down the road toward collectivism and collective responsibility rather than individual freedom and indvidual responsibility. All of these suits are the results of a minority who want to take away our rights and freedom and unable to do so through lawful elections seek now to do so through judges. I don’t care if the gun manufacturers were giving machine guns to 10 year olds, the results are the fault of the parents and the children themselves, not the manufacturer.

  29. Thoreau,

    You are quibbling and making up differences where we have none. Random example: Notwithstanding my egregious misuse of the term “safety” I know that you know that there is, at least hypothetically, such a thing as a gun that fires too readily. If you can’t possibly imagine how such a problem could be related to a safety (as that term is understood by gun enthusiasists), then imagine a gun that fires when it is bumped. Liability, yeah? Okay, hypo back on track.

    I want to help you understand how tort law works, but I can’t do it if you are going to nickel and dime me with this bullshit obstructionism. It would help if you would try to understand the broader arc of my method here instead of being hypertechnical (I thought that was a lawyer problem!).

  30. Someone needs to feed the server hamsters. It takes forever to post, and it seems some comments time out without actually posting.

  31. Dave W-

    I wasn’t being hyper-technical. You seemed to be implying that the vast majority of guns are worthy of lawsuits because they don’t have what most people call a “safety.”

    As to your latest example, if I bought a gun that could fire too readily, and I understood the dangers, then I would be liable for anybody who is injured by it, because I was the person stupid enough to purchase a deadly weapon that I cannot control.

  32. Mfgr makes gun. Store sells gun to child. Child commits murder. Result: Liability (law must not foreclose this suit).

    The store/manufacturer is liable for what, exactly? Wrongful death?

    Would it make any difference if the sale were to an adult? Why? Why should liability for a murder turn on whether the purchaser is 17 or 18?

    Saying that the sales to a minors was illegal just begs the question – the sale to the minor carries its own penalties, after all, and is punished independently of whatever crimes the minor commits.

    Mfgr makes gun, but decides not to include any safety so that the gun is more ready to use. Careless user accidentally shoots another to death. Result: liability.

    Why should the manufacturer/seller be liable for the carelessness of the user? A safety won’t prevent a careless user from shooting someone – hell, leaving the safety off is the sine qua non of carelessness.

  33. Dave W. let’s use your examples.

    1. Mfgr makes gun. Store sells gun to adult. Adult commits murder with gun. My preferred result: no liability (okay to pre-empt suit).

    Add restriction that store sells gun according to Federal and state regulations, including the background check. The new liability law would prevent such a suit against manufacturer and store.

    2. Mfgr makes gun. Store sells gun to child. Child commits murder. Result: Liability (law must not foreclose this suit).

    Liability for whom? Under the new law the store would be liable, but not the manufacturer. Lawsuits based on negligence in selling guns are not barred. Besides, the store can be criminally prosecuted for selling a long gun to anyone under 18 or a handgun to anyone under 21.

    3. Mfgr makes gun using the same safety mechanism they have been using (or slowly developing over decades). result: no liability.

    4. Mfgr makes gun, but decides not to include any safety so that the gun is more ready to use. Careless user accidentally shoots another to death. Result: liability.

    Under the new law any suit alleging that the firearm was defective would proceed. Manufacturers are moving in the direction of more safeties, not less.

  34. There are a few gun laws that I would support:

    1) Anybody who passes a background check (we can quibble over which gray area offenses should be in there) is issued a permit to purchase and carry whatever he wants….if he takes a safety class.

    Why the class? Because there are people out there who think that the injuries caused by the misuse of a gun are the fault of somebody other than the owner. I know that not every idiot can be reached, but they should have at least one chance to learn things the right way so they can’t blame anybody but themselves.

    2) It’s illegal to sell to somebody who doesn’t have a permit, but sales with a permit will not be recorded (so nobody else knows what you are storing in the privacy of your own home).

    3) To answer the old libertarian debate over “But, what about the right to keep and bear WMD?”, the answer is simple: If the cops can use it, so can you.

    4) To encourage burglars to go unarmed, double the prison sentence for anybody who carries a gun while committing a crime.

    That’s it.

  35. I don’t see a lot of disagreement here. Dave W and John are right – if the product is manufactured in such a way as to be unsafe to the user when all reasonable precautions are followed, there is associated product liability.

    To me, there is a flip side. Suppose someone marketed a ‘smart gun’ based on a chip inplated in the grip that receives a signal from a ring worn by the user. If it is ‘go time’ and it takes one minute or something for the lock to disengage, and I get shot in the face as a result, I would certainly hope someone would sue the crap out of the manufacturer for building a faulty product that cost me my life.

    The purpose of the tool is to go bang, and quickly. It is a life saving tool, just like an Auto Electronic Defib machine.

  36. Thoreau,

    A good example of a legitimate gun safety suit involved the Chinese manufacturer of semi-automatic rifles. The rifles were made so cheaply and the trigger mechanisms so flimsy that the rifles would sometimes continue to fire in full automatic mode after the user had fired one round of the alleged semi-automatic rifle. Clearly, the manufacturer of such a defective product ought to be responsible for anyone accidentily harmed by the rifle.

  37. “I know that you know that there is, at least hypothetically, such a thing as a gun that fires too readily.”

    Really?

    Like what? Give me a working definition of a gun that “fires too readily.”

  38. Thoreau,

    A good example of a legitimate gun safety suit involved the Chinese manufacturer of semi-automatic rifles. The rifles were made so cheaply and the trigger mechanisms so flimsy that the rifles would sometimes continue to fire in full automatic mode after the user had fired one round of the alleged semi-automatic rifle. Clearly, the manufacturer of such a defective product ought to be responsible for anyone accidentily harmed by the rifle.

  39. “I know that you know that there is, at least hypothetically, such a thing as a gun that fires too readily.”

    Really?

    Like what? Give me a working definition of a gun that “fires too readily.”

  40. Jason-

    What if you knew when you purchased it that the lock would take a minute to disengage? If you decided to purchase it anyway, for whatever reason, isn’t that your fault?

  41. I would be liable for anybody who is injured by it, because I was the person stupid enough to purchase a deadly weapon that I cannot control.

    *Reagan voice* There you go again. First, you wouldn’t know about the defect until the gun got bumped and somebody ended up dead. (yes, I know you don’t point guns at ppl, T, but when your elbow is jostled the angle of the barrel ends up pointing along a different vector than the one you planned, typical petty objection preemption over).

    Second, what if you don’t have enuf money to compensate your victim, but the mfgr does? What would be fair to the victim’s family?

    Third, if you think that a gun that goes off from a jostling or bump should be legal to manufacture and distribute without liability, then you understand that you have just entered NoCredsVille.

  42. John-

    Fair enough. That one clearly didn’t work as advertised.

    My concern with Dave W.’s thing about safety is a particular clause that he included in his hypothetical:

    4. Mfgr makes gun, but decides not to include any safety so that the gun is more ready to use. Careless user accidentally shoots another to death. Result: liability.

    The part about “more ready to use” suggested that he wasn’t talking about a safety device that failed to work as advertised, or a gun that accidentally discharged when bumped. He could have been describing most handguns, which lack a “safety” that will make it impossible to pull the trigger. He could have been describing a Glock, which cannot be decocked.

  43. “Third, if you think that a gun that goes off from a jostling or bump should be legal to manufacture and distribute without liability, then you understand that you have just entered NoCredsVille.”

    And if you think that there is a modern manufacturer that makes a firearm model capable of being discharged from a jostle or bump, you are the mayor of NoCredsVille.

  44. Again, I ask, give me a working definition of a gun that “fires too readily.”

  45. thoreau:

    Sorry, inherent in my smart gun case is that the lock took longer to disengage than was advertised. I’m just arguing against a definition of ‘safe’ that would protect the manufacturer of a gun that failed ti fire at all from liability. We must maintain the context of the tool’s purpose when trying to figure out what safety means.

  46. And if you think that there is a modern manufacturer that makes a firearm model capable of being discharged from a jostle or bump, you are the mayor of NoCredsVille.

    Mediageek, I see you have discovered one of the great accomplishments of the traditional tort law that you now seek to tear down. Kinda funny in a GFY kinda way.

  47. Silly Jason, doesn’t he know that the only purpose for a gun is for hunting or maybe sport shooting.

    But only for the sports that we deem are actually sports per the “sporting purposes” clause…

  48. “Mediageek, I see you have discovered one of the great accomplishments of the traditional tort law that you now seek to tear down. Kinda funny in a GFY kinda way.”

    Oh? Please, clarify.

    I will also note that you failed to answer my question.

    So I will repeat it a third time:

    Give me a working definition of a gun that “fires too readily.”

  49. Thoreau: 1) Anybody who passes a background check (we can quibble over which gray area offenses should be in there) is issued a permit to purchase and carry whatever he wants….if he takes a safety class.

    Two quibbles. First, a reasonable safety class. Not one that requires missing two weeks’ work or is impossible to pass or is only offered on February 29. Second, this law applies to everyone who wants a firearm, including military, law enforcement, security guards, Hollywood actors, members of Congress, etc.

    3) To answer the old libertarian debate over “But, what about the right to keep and bear WMD?”, the answer is simple: If the cops can use it, so can you.

    Have you seen what the “cops” are using lately? Where are you going to park your machinegun-equipped armored personnel carrier?

    Dave W: Third, if you think that a gun that goes off from a jostling or bump should be legal to manufacture and distribute without liability

    The new liability law would allow a lawsuit for any such obviously defective device.

    A little background on the “safety” issue, and why it sets our red flags whipping. Anti-gun folks want manufacturers to include all kinds of “safety” devices on firearms. An excellent example is the magazine disconnect, which disables a semiautomatic handgun if the magazine is removed. Most shooters feel that this device is at best unnecessary, and at worst makes the firearm less safe.

    When I say “most shooters” I include the experts who select firearms for law enforcement and the military. In fact, when you read the laws proposed by the anti-gun folks requiring manufacturers to include magazine disconnects (and other such features) you will invariably find a clause exempting firearms supplied to law enforcement and military. Why? Don’t we want our cops and soldiers to have safe guns? Of course we do.

    What we have is a device that military, law enforcement, civilian, and manufacturer’s experts all agree is bad. The only people who want these devices are the gun control “experts” who never have to hassle with them.

    The big yuk was in the proposed agreement the anti-gun folks blackmailed Smith & Wesson into signing. It required S&W to include a number of these devices because their guns weren’t safe without them. But not only was there the exemption for LEOs and the military, S&W was also required to issue a certificate with every such gun supplied to the government that it was really “safe” to use. Even though it didn’t have the required “safety” devices.

    Guideline: Any law improving the safety of firearms that excludes military and law enforcement isn’t about gun safety, it’s about control.

  50. Anyway, the difficulty in defining “fires to easily” is why these issues are better left to ex post perspective courts, rather than to the abstract, before-the-fact speculations of legislators and regulators.

    I think we all know there there is such a thing as a gun that fires too easy (John gives a good example).

    I think we all know, on the other hand, that most guns in our present world do not currently have this problem.

    Tort suits are a good way to draw the line between the two categories. Liability exemptions for gun manufacturers are probably a much poorer way, but, like I said above, I am open to the idea. I am not open to the idea, however, that the only example of a defective gun is one that explodes in the user’s hands. that kind of comment makes me embarrassed to be seen on this bd.

  51. One example? Okay, one (not necessarily typical, but sufficient for proof of concept):

    a gun that fires when dropped from a height of 0.000001 millimeters.

    Anymore bullshit obstructionism?

  52. Dave W.-

    There’s no subjective judgement required in John’s example: The manufacturer said that if you set it to fire one shot per trigger pull then it will fire one shot per trigger pull. But sometimes pulling the trigger caused it to fire more than one shot. That’s a failure to function as advertised, and a dangerous one to boot. We don’t need any a posteriori judgements of what it means to be “too easy to fire”, we just need to look at the clear and dangerous disconnect between what was promised and what was delivered.

  53. okay, T. What about the example I came up with for our colleague Mediageek?

    I don’t mind it when you qualify my hypos to put my point across in realistic terms, but if you are going to play the I-just-can’t-imagine-a-gun-that-fires-too-easily, then you are just being intellectually lazy.

  54. “Anyway, the difficulty in defining “fires to easily” is why these issues are better left to ex post perspective courts, rather than to the abstract, before-the-fact speculations of legislators and regulators.”

    Translation: “I don’t know what I’m talking about, so I’m just going to throw up a big ink cloud of legal words and slip away.”

    “I think we all know there there is such a thing as a gun that fires too easy (John gives a good example).”

    No, that’s an example of a shoddy design that leads to unintentional discharge. I’ll stop long enough to point out that the Lawful Commerce in Arms Act would not prevent suits brought against such designs. (Though whether you’re going to get money out of the state-run Chinese industry that made it is a wholly different ball of wax.

    “I am not open to the idea, however, that the only example of a defective gun is one that explodes in the user’s hands. that kind of comment makes me embarrassed to be seen on this bd.”

    I suppose that there are other sorts of failures, but I’m hard pressed to come up with one that wouldn’t be the direct result of improper maintenance or failure to replace worn parts. Heck, even most catastrophic failures that result in the arm exploding are a result of ammunition that was improperly made on a home press.

  55. “One example? Okay, one (not necessarily typical, but sufficient for proof of concept):

    a gun that fires when dropped from a height of 0.000001 millimeters.

    Anymore bullshit obstructionism?

    So you admit that your bit about a gun that fires “too easily” is irrelevant to the real world?

  56. Dave W.-

    I’m not being intellectually lazy. You originally described a faulty gun as one that is too easy to use. There’s a big difference between ease of use and accidental discharge. My gun has various levels of ease of use: I can store it with or without a round in the chamber, and if there’s a round in the chamber I can store it cocked or decocked. That is distinctly different from what you’re describing now.

    What you’re describing now is a very reasonable but rare (fortunately) very rare concern: A gun that goes off when nobody pulled the trigger. I think we all agree that somebody should be able to sue over that (assuming the defect wasn’t due to poor maintenance by the owner, etc.). Fine. But if you say that a gun that’s easy to use is unsafe, you should expect people to argue with you.

    That’s all.

  57. (fortunately) very rare

    Fortunately OR thank-God-we-have-tort-law-tunately?

  58. “Fortunately OR thank-God-we-have-tort-law-tunately?”

    How about “Thank-God-we-have-a-free-market-where-multiple-companies-compete-for-the-buying-public’s-hard-earned-
    dollars-and-a-firearm-design-that-discharges-without-the-user-pulling-the-trigger-wouldn’t-last-long-
    in-a-free-market-because-no-one-would-buy-one.”

    I will stop here long enough to note that the two firearm models that I know of that have had such problems were manufactured by Communist China, and Imperial Japan.

  59. So? In China the tort law was long ago hi-jacked by Commies (seriously, at least in an important sense!) In Japan the tort law was hi-jacked by very powerful private businesses who don’t give a shit about anything but profit. Guess which of these two problems I think the US is headed for potentially here.

  60. If it will make you happy, I’ll attribute every safe device out there to tort law.

    But, seriously, I have a hunch that gun manufacturers put most of their energy into satisfying their most demanding customers. I’ve heard that Sig subjects their products to quite a bit of abuse during testing, to verify that they won’t discharge accidentally. Now, I can’t see myself ever dropping my Sig a hundred times in a row before firing it in salt water, or whatever. But a gun carried by a soldier could easily be subject to some abuse in battle.

    I don’t mean to demean the great contribution that trial lawyers have made to our society, or the numerous technological advances made possible by tort law. But maybe, just maybe, firearm reliability is due at least in part to demands from bulk purchasers with rigorous requirements.

  61. My point being that in a free market, even a hypothetical one where a company could willfully manufacture defective firearms, such designs would not be purchased by the public as they would opt for truly safe designs made by reputable companies.

    And my point isn’t about tort law, it’s about the fact that totalitarian nations often turn out sub-standard goods, be they shoes or airplanes. Tort law has nothing to do with it. That you even try to engage it on such grounds is laughably ludicrous.

  62. T., you can’t have it both ways. Either traditional tort law is something gun manufacturers take cognizance of in their design and security and logistics, etc) decisions or not.

    If yes to cognizance: then cwcid (credit where credit is due)

    if no to cognizance: then stop bothering me fantastic new exemptions to traditional responsibilities — if tort law don’t bother them, then it shouldn’t bother you.

  63. Dave W-

    My guess is that tort lawyers (those noble souls!) played their part in firearms innovation, but competition between many firms vying for many large customers (police departments and militaries) played a larger role. Just a hunch. Especially considering that excellent pistols are made in Europe, which has a less litigious attitude than the US.

    Anyway, what on earth does this have to do with suing S&W because somebody bought a gun and used it in a crime? We all agree that a manufacturer should be liable for mechanical defects not arising from improper maintenance.

  64. Yes, I’m certainly positive that when John Moses Browning designed the 1911-pattern .45 pistol in the early 1900’s, he was all sorts of concerned with getting sued, so, out of sheer fear of tort lawyers (instead of a desire to create a superior, and safe product) he included extra safeties that he otherwise would not have wanted to put in the gun.

    GMAFB.

  65. Anyway, what on earth does this have to do with suing S&W because somebody bought a gun and used it in a crime?

    If the exemption is narrow enuf, great. But it is hard to be trusting that the exemption is narrow when you keep denigrating the positive effects of tort law. Tort law isn’t just about the losers. Rather, it is about the winners who operate in the shadow of tort law without violating it. that point (which shouldn’t be that hard) seems to get real short shrift here.

    Finally: in the situation you describe, tort law would impose no liability. Are some cases wrongly decided? Sure. But by and law, traditional tort law gets the result you want on your hypothetical (this is the part where I forbear from quibbling with the “facts” of your hypothetical so we can make real deliberative progress — take note). Yes, big business has a history of making a mountain out of any wrong result. Sometimes ya just gotta know when you are getting sold a bill of goods. It helps to be a lawyer with business clients. The innocence goes away fast.

  66. Mediageek,
    The tort law, sometime between 1911 and the present blessed Browning’s design. cases against Browning were either never brought (because the design was so safe) or they lost (again because the design was so safe).

    The designs of others that weren’t similarly blessed over the fullness of time? You haven’t heard of them because they got pulled. that is why you see so many more successes than failures. Great teamwork between Browning and the law, but I shudder to think what might have happened if they allowed Browning (or worse yet one of the failures) to *write* that law.

  67. “Great teamwork between Browning and the law, but I shudder to think what might have happened if they allowed Browning (or worse yet one of the failures) to *write* that law.”

    Yeah, I’m sure they’d have churned out products like Ruger makes now- triggers that are deliberately heavy and gritty. Extraneous “safety” features like a so-called “chamber-loaded indicator” (whatever happened to handling any firearm as if it had one in the chamber?) that doesn’t function properly, magazines with neutered capacity, and on and on.

    I’m sorry, but the heavily litigious atmosphere has led the modern gun industry to make extraneous negative changes to their designs simply because of the threat of being sued.

    To say nothing of the fact that the prices on many firearms have been driven upwards as these companies are forced to defend themselves from junk lawsuits brought by people with a deliberate civilian-disarmament agenda.

    A company dedicated to manufacturing a quality product will do so regardless of whether it’s the legally prudent thing to do or not, and much of the “safety” changes made in deference to your almighty God of Tort are hardly conducive to a safer, more economical, accurate, and reliable firearm.

  68. 1911 is the model name, Einstein. How does a Canuck claim expertise in American law, anyway?

  69. Dave W.-

    Look, you lawyers are undoubtedly responsible for a tremendous amount of the innovation and reliability found in modern technology. But isn’t it possible, just possible, that market forces may have played at least a small role? Just maybe?

  70. Oh good, someone fed the server hamsters.

    Anyway, the Browning design was for a military contract, and the military didn’t give a rat’s ass about product liability. It became popular in the civilian market after it had been grunt tested.

  71. KMW,
    It is important to note that tort law does not adjudge a design safe just because the military uses it. Don’t kid yerself — the Browning passed the traditional tort law tests — unlike, say, those guns that kept jamming in Nam.

  72. But isn’t it possible, just possible, that market forces may have played at least a small role? Just maybe?

    or maybe both market incentives and tort enforcement supported each other in a healthy way. Its possible. Markets and tort law are not mutally exclusive. Tort law was developed within a culture with a reasonable degree of laissez faire capitalism, after all. What is so different now (besides better corporate PR and silverier tongued lobbyists)?

  73. I have one of those evil “…guns that kept jamming in Nam”.

    Works fine for me. Still quite popular, in fact. If I remember correctly, the DoD and McNamara himself wanted the mattel toy. There wasn’t any way HE was going to sue Colt’s MFG. And yet, the A1, A2, etc appeared.

  74. KMW,
    Okay, but if your widow sues after the robber gets ya, don’t come looking to me for symp. Your anecdote means little in the probabilistic world of tort law. There is no certainty, only zones of varying probableness. That is the model here. Even a physicist like our T. can understand that I hope.

  75. Dave, you’re a funny one.

    I’m not sure if you realize I’m talking about Eugene Stoner’s Armalite design. I assumed that’s what you were talking about.

    If you think it’s a defective design, well… I guess since they’re forbidden in Canada, you wouldn’t know about how well it works anyway. But I dare you to pose as a reporter and drive towards a security checkpoint at full speed in Baghdad.

  76. BTW, my newest one has gone through 2,160 rounds of XM193 ammo without a failure. What’s the probability that it’s going to work if/when I need it?

  77. KMW,
    When I get “Armalite Rifle” (shoots for miles) as my prize client, I conditionally promise you the lucrative position of expert witness and head jury herder.

  78. But KMW, if they ask you whether your new one, in both name *and* design, matches exactly the ones that used to jam, uhhhhh, fudge. Your paychek will depend upon it!

  79. Damn dude, I want whatever you’re smoking. Do you have a clue what I’m talking about? There’s half a billion different companies that make AR-15s these days.

    Is the breadth of your knowledge of M16s based on third-hand 1960s war stories? If so, I’m not sure this is a subject you should feel qualified in addressing.

  80. No, I am trying to pre-empt the argument that the company that now makes the AR15 looked to US tort law and gave the civvies better weapons than the grunts, albeit with the same name. You do understand why I, as first chair trial lawyer here, would be concerned about that don’t you? Them john-edwardsy types is jes 2 dam clever to be as cavalier as u b here, my expert!

  81. Dave,
    Continuing… Here’s a little bit of context. It wasn’t the gun’s fault for failures in “Nam.” The ammo used very dirty ball powder, and to top it off, the military brass told the grunts they didn’t ever need to clean the gun.

    The design wasn’t bad then, and it isn’t now. If someone were to offer me an SP1, I’d gladly accept it.

  82. Dave W.-

    What’s your point?

    All I know is that we started off talking about how people are suing gun makers because criminals use their products. And then you start going on about gun malfunctions, a totally different problem. And then you said something about how a gun might be defective because it was designed without a safety “so that the gun is more ready to use.” Which struck us as totally ridiculous.

    And now you’re telling us that the reliability of modern firearms is due in large part to tort law. No doubt the innovation-friendly and ever-honest tort bar played its part. But some of us think that competition to meet the stringent demands of law enforcement and military personnel (and win large contracts) may have actually had a role. Maybe even a bigger role than the upstanding gentlemen of the tort bar.

    And some of us would note that Western Europe, which is far less litigious than the US, produces very reliable guns that are at least as good as some of the American models.

    So, what’s your point? You want us to give you lawyers your share of credit for innovation in firearms manufacturing? Fine. Now, back to the actual lawsuits under consideration.

  83. I am glad tort law caused people to be more careful about dirty balls (errrr) in civilian contexts than they were in the war. that makes sense to me because civilians should die less frequently than those being extraordinarily compensated for taking brave risks with their very own lives. War is Hell and all that.

  84. T,:

    when you are trying to avoid unintended consequences, the best appraoch is to think about unintended consequences more than mere mortals usually do. It is a confusing process for the scientist.

  85. …As we inch closer to invocation of Goodwin’s law…

    You have to understand, I’m not against lawyers, and I think consumer rights are a good thing. It’s just that gun designs seem to mostly flow from the military, which is generally outside the realm of civil law. The designs would exist with or without lawsuits.

  86. I am glad tort law caused people to be more careful about dirty balls (errrr) in civilian contexts than they were in the war.

    Whatever. Now I’m certain you don’t know what you’re talking about.

    War is Hell and all that.

    How beautifully poetic. We’re getting closer to invocation…

  87. Exactly, kmw.

    There’s really not much danger that my gun will be damaged. It spends 166 hours per week in a locked (but accessible) box, cradled in foam rubber. For 2 hours per week it is taken out, fired, cleaned, and oiled. It is then returned to its safe coocoon.

    Compare that with a cop’s gun: Carried around in a holster for at least 40 hours per week. Often on the belt of a person who’s getting in and out of a car all the time. He may have to wrestle with suspects. And although he’ll point it at a person far less frequently than cops on TV, he’ll almost certainly point it at a person more often than I do (armed confrontations to date: zero). When he does, he has to be confident that it won’t fire accidentally. He may have to run with it in hand, or climb with it on his belt, and be confident that it won’t be damaged or fire accidentally.

    And for a soldier in a war zone, the amount of abuse that the gun might experience is essentially unlimited.

    And since law enforcement and military customers buy in bulk, their demands carry a lot of weight.

    Honestly, there may be some product designs that are tort-driven, but I just have a hunch that gusn aren’t on that list.

  88. Oh, and lest Dave W. think that my ideology blinds me to the significance of tort law, I spent a year and a half teaching at a private, for-profit college. Sometimes it seemed like my whole life revolved around avoiding lawsuits. I am well aware that some economic sectors are highly sensitive to tort law.

    I’m just not sure how good of a thing that is.

  89. my whole life revolved around avoiding lawsuits

    Here is a question:

    Approximately what proportion of T.’s colleauges have been destroyed by career-related lawsuits over the past 25 years?

    a. 50%
    b. 25%
    c. 2%
    d. 0%

    extra credit for captions that can be verified on PACER!

  90. By colleuges, I mean people T. has met professionally, ppl he has met. In case my point warn’t cler.

  91. It’s not about cases that go to court, Dave W. It’s about reasonable grading policies that couldn’t be enforced because a legal t wasn’t crossed or a legal i wasn’t dotted. It’s about plagiarists who weren’t expelled (on the advice of the school’s lawyers) because there was no explicitly worded statement on the assignment saying that plagiarism was wrong. Not all of these things happened in my class, but I know people that they happened to. We fixed these things as we went along, changing syllabi in subsequent terms so we wouldn’t get caught in the same trap twice. But we certainly learned how careful you have to be in a litigious society.

    And before you accuse me of changing my story, I qualified it with the phrase “Sometimes it seemed like…”

  92. I also encountered some other absurdities of law and regulations. One is something that I actually blame, for the most part, on my bosses: Any stupid bullshit that they did, any TPS report or inane procedure, if you asked why we did it but none of our colleagues at other schools had to, they would say “Well, as a publicly traded company we have certain obligations under Sarbanes-Oxley.” And while there’s no doubt a grain of truth to that, sometimes it just seemed too convenient of an excuse.

    Another piece of bullshit: One of our campuses was in a neighborhood with a super-uptight Neighborhood Association or whatever. They had people who would actually count the number of cars in the lot, and complain if too many people were on campus at once (in violation of some rule or zoning or something). The upshot was that if you wanted to plan a special event using facilities at that campus, you had to run it by the administration. (Then again, given that the administration was a bunch of control freaks, I wouldn’t be surprised if the Neighborhood Association problem was also inflated to make a convenient excuse.)

    The stupidest, however, was a county ordinance on smoking: The school’s lawyers (the same geniuses who couldn’t find a way to expel some plagiarists) concluded that the only way to comply was to require that students smoke outdoors….under a canopy. Anybody smoking outdoors but outside the canopy would be in trouble.

    I offer these stories not to defend anybody who makes a gun with a hair trigger, but simply as amusing stories of the absurd. Read ’em and laugh.

  93. kmw:

    The unlined barrel. Don’t forget the unlined barrel in the original issued 16. It just didn’t handle jungle wetness very well.

    The AR design is now by far the most robust on the planet. It can do more than any other rifle. Why? Becuase it was granted effective monopoly status by import restrictions and the AWB. Market forces worked, but only on that design. You could argue that M1As were built, but they are very much a niche gun (and overpriced, and they don’t hold scopes well, and Springfield tends to be lazy with anything that isn’t a 1911).

    I would admit that AKs are still more reliable without cleaning for longer periods and in more environments, but you just don’t have the flexibility. Rock River Armory builds absolutely fantastic ARs and bits for a very attractive price.

  94. On the safety issue, the largest factor was probably in the migration of police standard sidearms from wheel guns to semi autos. Cops never considered semi autos safe, and many departments didn’t want to deal with a safety per se (“Don’t need no switch on my .357!”).

    Smith and Wesson built the first semi that was broadly adopted by departments. I’ve heard all sorts of reasons for this, but the truth is probably because Smith made the revolvers everyone was already using. I’ve never fired a Smith semi that felt good in my hand. Their triggers are heavy and gritty. Guess what? That’s a safety feature!

    Then came Glock with the last really revolutionary design. Forget the plastic, this was a pistol that fired the same way every time with a lighter ‘safe action’ trigger. Glock’s marketing in the early 90s was all about their umpteen unseen internal safeties. They had promos of loaded glocks being dropped out of helocopters on the back of the slide and not firing. Glock took over law enforcement on safety.

    Then, the horrible truth set in. Cops have no firearms training. They’d tie their shoes while holding their Glock, pull the trigger themselves, and shoot their own feet. Departments have in the last year or so started to demand longer triggers, so the new generation is really a step backwards – it is double action only weighted semi autos. You get a consistent, but longer and heavier trigger pull. Cops drive the market.

  95. correction: Glocks took over law enforcement in part on safety.

  96. Then, the horrible truth set in. Cops have no firearms training. They’d tie their shoes while holding their Glock, pull the trigger themselves, and shoot their own feet.

    I won’t say someone that stupid deserves to be maimed, but they certainly shouldn’t be cops.

  97. I was trying to explain US liability law to the kids the other day. They were stunned at the obvious stupidity of liability law.

    Daddy, how can it be your fault if someone falls off your front porch and breaks their leg?

  98. Thoreau, if substantially none of your colleagues has fallen into career destroying tort trap in recent memory, then I think savvy readers will understand that your professional life does not “revolve around” tort law, contrary assertions notwithstanding.

  99. T, when he says his life revolves around tort law,* doing exactly what I always complain about big business doing, to wit: “help, help, tort law is destroying me” — when in fact no such thing is happening.

    FOOTNOTE
    * Yeah, I saw the part about “sometimes it seems.” We had a term for words like that back at lawrskool. The term was weasel words.

  100. Dave W., you’re a lawyer. You see liability considerations as a part of daily life, and so you probably wouldn’t think it unusual if a reasonable decision, based on your best professional judgement, had to be overturned due to liability considerations. You don’t see the big deal in it.

    To the rest of us, however, it is an insult that some lawyer who knows nothing about what we do for a living can tell us what to do. You lawyers have no business telling decent professional what to do, but you get away with it because any idiot can bring a lawsuit nowadays.

    This isn’t about money, Dave W. I’m not a manager trying to shave a few more bucks off of a legal budget. It is about the indignity of being a highly educated professional who’s had a reasonable decision overturned for fear of liability. You probably see nothing wrong with this, because you are a lawyer. But to the rest of us, it is an insult.

    And yes, I realize that I just referred to lawyers as “you people.” That’s one of the nicer terms that I use to describe lawyers. Talk to me on a bad day, and I’ll tell you some of the other phrases that I use.

  101. Dave W., The Protection of Lawful Commerce in Arms Act does not prohibit product liability suits. The judge in this case is not allowing a product liability suit.

    He is allowing exactly the kind of frivolous suit that is prohibited by the Protection of Lawful Commerce in Arms Act. Namely a frivolous suit against a third party who had absolutely no control over the events.

    For the record, I agree with Ron Paul that the Protection of Lawful Commerce in Arms Act is an unconstitutional violation of states’ control of their judiciaries. But I also see it as a clumsy attempt to correct something that is totally screwed up.

  102. There is reasonable liability and unreasonable liability.

    When my cousin was in law school at Tulane, he and I were talking about his tort class. They were talking about a case involving swimming pools. I don’t recall the details, but the gist was whether the bottom of the pool should be smooth or textured. The result of the case was ‘inescapable liability’ on the part of the maufacturer such that it didn’t matter which way he built his pools, he would still be liable for the harms in question.

    Angry, he asked the attorney representing the class action how it would be possible to build a pool without being sued into oblivion. The attorney smiled and told him to build a product that wasn’t a menace. Yikes.

  103. There is reasonable liability and unreasonable liability.

    Indeed, and even with the Protection of Lawful Commerce in Arms Act there is plenty of leeway for abuse by creative lawyers.

  104. I don’t recall the details, but the gist was whether the bottom of the pool should be smooth or textured. The result of the case was ‘inescapable liability’ on the part of the maufacturer such that it didn’t matter which way he built his pools, he would still be liable for the harms in question.

    Credulous much there Jason?

  105. The world’s tiniest violin plays for T. Scientists tell lawyers how it is, not vice versa. I forgot that.

  106. If I talk to you on a bad day, you will be in deposition and you will be very polite to me. that is how it works, mmmkay?!?!?

  107. Dave W., if you don’t tell me how to grade students and how to do my calculations, I won’t tell you how to write a legal brief. Deal?

  108. Dave W:

    Well, it was my cousin and he was currently in the class. He isn’t the sort of guy to make something like that up, but I suppose you could be right. In short, I really had no reason to be incredulous. He is now practicing in Atlanta, and I guess I could try to confirm the case, but the thread would be long gone by then.

    All you have to do is look at the number of liability mitigating measures associated with consumer products and ask yourself how many of them are material. There is a huge deadweight loss to the economy associated with this kind of thing.

  109. Jason, to be fair, your cousin is a lawyer. Is that really the sort of person you want to take at his word? 🙂

  110. From the big rotten apple comes the worms from its core

  111. Dave W.

    Whiel I understand and appreciate your desire to claim tort lawyers are useful people in the grand scheme of things and burnish the reputation of your chosen profession, there’s one problem I see with your arguments in this thread.

    You obviously know crap about guns. You’ve managed to display this repeatedly. Don’t try to make hypotheticals about malfunction when you don’t know what proper function is.

    You wouldn’t make arguments about tort law influencing gun design if you knew anything about the field. The most popular handgun in this country was designed in 1905. The most popular handgun in the world (arguably) was designed by a Combloc factory to be a military sidearm. The most popular rifle in the world was similarly designed as a Combloc military weapon. I can’t imagine product liability concerns played a role in the design of any of those weapons. Most gun designs available are refinements of designs that predate the current tort law insanity. Almost none of the refinements have to do with “safety”. When “safety” enhancements are added to traditional designs, they are universally loathed and removed if at all possible. (See in particular the Colt series 80 firing pin block sfety and the Springfield Armory ILS for examples.)

    To make the answer shorter: no, tort law has nothing to do with improvements in gun design. This holds true with almost any engineering design. I don’t design things to not kill people out of some fear of the tort bar and a product liability lawsuit. I design safely because I’m ethical in my practices.

    Unfortunately for all engineers and product designers, the damned end users won’t listen to us. When I tell you that a product is only designed for 10,000 psi, don’t come back and whine when you ran it at 15,000 psi and it blew up on you. You cannot design around the incompetence of your end user. Unfortunately for us, the tort bar seems to think we should design equipment for a drooling retard without enough common sense to pour piss out of a boot.

  112. “Don’t kid yerself — the Browning passed the traditional tort law tests — unlike, say, those guns that kept jamming in Nam.”

    Ok, I haven’t looked at this thread since yesterday afternoon. I still haven’t read the thread after Dave’s quote from above.

    I just want it to be known to all and sundry that I fell out of my chair on account I was laughing so fucking hard.

    The AR15/M16 design and spinoffs thereof is one of the most economically successful rifle platforms in the United States today- among military, police, and civilians.

    Dave, bud, here’s your sign.

  113. “I am glad tort law caused people to be more careful about dirty balls (errrr) in civilian contexts than they were in the war.”

    Really? Proof please. Like, say, citing a court document or something.

    Someone points out a problem, and that it was eventually resolved.

    And somehow you just assume that in between them *POOF The Magic of Tort Law is here* and that was the cause of the proper resolution of the problem.

    GMAFB.

  114. “The world’s tiniest violin plays for T. Scientists tell lawyers how it is, not vice versa. I forgot that.”

    And it’s a bloody shame that people who spend their life adhering to the concept of rational, scientific inquiry have to kowtow to a bunch of simpering idiots whose only talent is beating people with a hammer forged of overly-complex mumbo-jumbo.

    The more I learn about the law, the more I believe it has zero in common with factual reality.

    May as well play Magic: The Gathering for insight into the real world. It’s nearly the same thing.

  115. /Posting like Gunnels.

  116. What do you have with 40,000 lawyers at the bottom of the sea? A good start.
    “And it’s a bloody shame that people who spend their life adhering to the concept of rational, scientific inquiry have to kowtow to a bunch of simpering idiots whose only talent is beating people with a hammer forged of overly-complex mumbo-jumbo.”

    EXCELLENT!!!!

    Having more than 40 years experience as a shooter and part time gunsmith, I was quick to realize that Dave has very limited knowledge of firearms.
    As members of the news media so often do, Dave is delving into a area in which he is lost. Like the Atlanta reporter expounding on “an assault crossbow”.
    30 round quiver, gas operated, selective fire?
    Gas provided by a tube plugged into the nether orifice of a nearby lawyer?
    By the way, I own two of those cheap Chinese rifles Dave mentioned. You know, the ones with the flimsy triggers.

    These guns can go auto, but is not the fault of the triggers, which are some of the sturdiest on the market, but is the fault of the owner not properly cleaning the weapon, allowing dirt to “lock” the firing pin in the foward position.

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