Two weeks ago, NBC’s Rock Center aired an investigative report questioning the safety of the Common Fire Control of over 20 million Remington firearms, including the best-selling Sportsman 12 shotgun, the 870 shotgun, and the 742 semi-automatic rifle. About two years ago, CNBC did a similar report on the Remington Model 700 bolt-action rifle. Odds are, if you’ve ever been out with anyone shooting a rifle or a pump shotgun, you’ve been around one of these. If you’re in law enforcement, then you’ve been around them on a weekly basis.

And there’s a big problem with them. A thousands of complaints and over one hundred thirty-five lawsuits problem. These firearms go off without the trigger being pressed, even when the safety is on.

As a plaintiff’s lawyer, seeing a news story about problems with Remington gun misfires is like seeing a story on the dangers of old tires: it’s not news to us, it’s something we talk about frequently, and litigate often as well. The trial lawyers association has a whole litigation group dedicated to firearms and ammunition dangers.

I’m not as familiar with the shotgun issues, but Remington Model 700 misfire lawsuits are so common that lawyers can practically cut-and-paste the relevant pleadings and briefs. (If you’re a lawyer representing a Remington malfunction victim, be sure you read this brief on similar incidents from the Montes case.)

The problem is simple, but takes a minute to explain. The Model 700 (and its variants, the ADL, BDL, CDL, and Safari, as well as the newer Model 710 and Model 770) is based on Merle H. Walker’s “firing mechanism” patent 2,514,981, patented in 1950. In the design, the trigger the operator sees isn’t really the trigger — the real trigger is a piece called the “connector” that’s inside the gun and held against the trigger by a spring.

As Jack Belk explains,

The Remington-Walker’s ‘trigger’ is not the piece you put your finger on. The part that acts as the trigger under the sear is actually the connector which is ‘flexibly connected’ to the trigger body. The trigger return spring pushes the connector which then pushes the trigger body into position under the sear. The connector offers a complication that is not needed in the trigger. The addition of the connector only adds to the complexity of what is a very simple and amazingly reliable mechanism when its parts are limited to only what’s necessary to do the job.

Is a mechanism that’s called upon to return one lever with one spring more reliable than a spring pushing on an intermediary part and then the lever? Of course it is. The fewer parts, the simpler the mechanism, especially when dealing with simple levers. With the re-positioning of the trigger-connector required after each shot, in the presence of recoil and powder residue and debris, the answer becomes even more certain. More parts means more complications without benefits.

Those “complications” cause a couple problems in the actual use of the Remington Model 700, which Remington itself broke down into Fire on Bolt Closure, Fire on Bolt Opening, Fire on Safe Release, and Jar Off. “Jar Off” is a standard industry term for a firearm discharging when struck or dropped. The rest mean what you think they mean: someone was opening or closing the bolt, or simply releasing the safety when, boom, the gun went off. 

The problem is by no means new; back in 1968, Consumer Reports reviewed the Model 700, noting a particular problem:

The sixth-ranked rifle, the Remington 700, exhibited a potentially dangerous flaw as first tested. There was so little clearance between the trigger and the trigger guard that when the trigger was pulled with the safety on (something you or a friend might do when sighting down the rifle or trying it for feel), the trigger sometimes failed to return to its forward position. And with the trigger in the back position, the rifle would fire without warning the next time the safety was moved to the fire position. The malfunction persisted for more than 100 firings before the trigger wore in and performed normally. An unwary buyer might have caused a serious accident by then.

Yikes! That’s the “Fire on Safe Release” mentioned above. Unfortunately, these days the problem is often worse over time, not better, because over time dirt and other debris can accumulate between the connector and the trigger, increasing the likelihood of an unintended discharge.

The end result is a defective product that likely injures scores of people ever year, and which has even produced important court opinions like Lewy v. Remington Arms Co., Inc., 836 F. 2d 1104 (8th Cir. 1988). Consider this paragraph from the Lewy opinion:

We hold that there was sufficient evidence from which the jury could find that Remington knew the M700 was dangerous. The following evidence was before the jury: complaints from customers and gunsmiths that the Model 700 would fire upon release of safety, some of these complaints dating back as far as the early 1970s; Remington’s own internal documents show that complaints were received more than two years before the Lewy rifle was produced; Remington created a Product Safety Subcommittee to evaluate M700 complaints and on two occasions decided against recalling the M700; and Remington responded to every customer complaint with a form letter that stated that they were unable to duplicate the problem, that the customer must have inadvertently pulled the trigger and that Remington could not assume liability for the discharge.

Lewy v. Remington Arms Co., 836 F.2d 1104, 1106–1107 (8th Cir. 1988).

The Lewy case, in which a federal appellate court affirmed a punitive damages award against Remington for the problems with the M700, was over twenty years ago, and yet the M700, and now the M710 and M770, are still out there, still injuring and killing people, still prompting new lawsuits every year.

There’s a couple points we can learn from this experience.

First, as the NBC report mentions, unlike every other major consumer product — automobiles, prescription drugs, home appliances, etc — no government agency has the power to order a manufacturer to initiate a recall. This isn’t a Second Amendment issue, it’s a manufacturers versus consumers issue. I’m not surprised to see gun legislation treated completely differently from other laws, but it is indefensible that the government can’t even warn consumers about the dangers posed by a particularly dangerous firearm, much less force the manufacturer to use a different firing mechanism — Remington has its own “X-Mark Pro” system to replace the Walker design — that it admits is safer.

Second, there’s a common myth thrown around by tort reformers that a couple lawsuits can force a product to be pulled from the shelves. Nonsense. From what I’ve seen, the M700 has been the subject of over 135 lawsuits, and it hasn’t been recalled — it’s still sold to this day. Fact is, plaintiff’s lawyers can’t force a company to do much of anything, we can only recover compensation for victims, and then support advocacy efforts that work through other means like public recognition of dangers.

Third, in product liability cases, there will never be any shortage of people willing to blame the victim, and the corporate defendants bank on that in refusing to concede these cases. Consider this Field & Stream article putting all the blame on the victims:

This is poignantly illustrated by the death of Gus Barber, a Montana boy who was shot by his mother Barbara in 2000. Mrs. Barber was unloading a 700 whose muzzle was pointed at a horse trailer. On the far side of the trailer was her son. The rifle went off; the bullet passed through the trailer; Gus Barber died. This was a terrible tragedy, and I am very sorry for the unbearable pain the Barbers suffered.

Rich Barber, Gus’ father, believes his son was killed because the rifle went off accidentally. In fact, Gus Barber died because a rifle was pointed at him. If the rifle had been pointed in a safe direction, all the Barbers would have gotten was a bad scare.

There’s a nugget of truth in that — if someone follows perfect safe gun handling practices, they will immediately unload the weapon before ever pointing the muzzle anywhere but the target — but there’s also an outrageous level of hypocrisy. If consumers are expected to be perfect in how they handle products, then why is it so wrong to demand that manufacturers at least be reasonable in how they make products? A gun that fires when you release the safety or move the bolt certainly isn’t perfectly designed, and it isn’t even reasonably designed: it’s defective. Manufacturers should be held accountable accordingly.

And so we march on. I suppose there will be another NBC report in another two years, after another hundred or so accidents and another dozen or so lawsuits. It’s a shame.