68 Am. U. L. Rev. 2297 (2019).

* Senior Staff Member, American University Law Review, Volume 69; Editor-in-Chief, Health Law and Policy Brief, Volume 14; J.D. Candidate, May 2020, American University Washington College of Law; B.A., International Relations and Criminal Justice, magna cum laude, 2013, American University.  I would like to thank the American University Law Review staff for their diligent review and thoughtful suggestions in preparing this Comment for publication, and my faculty advisor, Professor David Hunter, for his invaluable guidance and feedback.  I would also like to thank my family and my husband, Jerome Ashley Sharpe, for their endless love, infinite patience, and unwavering support.

The invention of new technologies, and specifically 3D printing, is quickly changing how we shop, eat, and live.  For example, current technology already allows consumers to print a pair of shoes from the comfort of their living rooms instead of going to the mall, and parents can 3D-print custom-shaped chicken nuggets as an afternoon snack for their children. But, aside from the positive changes, 3D printing poses serious safety concerns because it allows for printing of plastic, untraceable, deadly weapons.

Whom will we hold liable when someone gets injured with a 3D-printed gun?  How will the courts apply existing law to address this novel challenge?  This Comment argues that courts should use traditional products liability laws to hold commercial sellers of CAD files liable for injuries caused by defects arising out of the design of their products.  Specifically, this Comment finds that CAD files are products for purposes of products liability.  It further finds that 3D-printed guns are inherently and unreasonably dangerous because they are undetectable by standard metal detectors; their users do not need to register or go through a background check before purchasing them; and because the public, including children and mentally ill persons, have unlimited access to them. Additionally, the designs of currently available CAD files do not incorporate a safety feature into the design of the firearm, making it more dangerous.  Commercial sellers can thus be held strictly liable for injuries caused by a gun printed with their CAD file.  In adapting traditional products liability law to 3D-printing technology, courts can encourage accountability for 3D-products designers who might otherwise escape liability for their defective designs and protect consumers from poorly designed CAD files.

Introduction

Americans have a unique and intimate relationship with guns, which, not unlike any other relationship, is often complicated.  The Second Amendment to the United States Constitution states that the “right of the people to keep and bear Arms shall not be infringed,”1U.S. Const. amend. II. and the Supreme Court has interpreted this provision to mean that Americans have an individual, but not unlimited, right to possess and carry weapons.2McDonald v. City of Chi., 561 U.S. 742, 791 (2010) (holding that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and the right was incorporated and made applicable to the states by the Due Process Clause of the Fourteenth Amendment); D.C. v. Heller, 554 U.S. 570, 626, 635–36 (2008) (holding that Americans have the right to possess handguns in their own home and striking down a D.C. statute that prohibited individuals from owning handguns as unconstitutional.  The Court also stated, in dicta, that Americans have the right to self-defense but that this right is not unlimited).  See generally David B. Kopel, The Supreme Court’s Thirty-Five Other Gun Cases:  What the Supreme Court Has Said About the Second Amendment, 12 J. on Firearms & Pub. Pol’y 65, 65 (2000) (arguing that despite the fact that the Court has not said so explicitly, its past decisions indicate that the justices regard the Second Amendment right to bear arms as an individual right).  Unfortunately, this right often comes at a high cost as the number of reported gun-related deaths in the United States surpasses those of other high-income countries.3Kara Fox, How U.S. Gun Culture Compares with the World in Five Charts, CNN (Mar. 9, 2018, 11:07 AM), https://www.cnn.com/2017/10/03/americas/us-gun-statistics/index.html [https://perma.cc/L6V4-M95R].  Balancing gun regulation and safeguarding the constitutional rights of American citizens has been a daunting task, one that is getting increasingly more complicated with recent technological developments.4See generally Jessica Berkowitz, Comment, Computer-Aided Destruction:  Regulating 3D-Printed Firearms Without Infringing on Individual Liberties, 33 Berkeley Tech. L.J. 51, 81–84 (2018) (discussing current gun laws in the United States and arguing that the best way to regulate and monitor the 3D-printing process is to impose safeguards on the purchase of ammunition).

While 3D printing has been around since the late 1980s,5History of 3D Printing, 3D Printing Indus., https://3dprintingindustry.com/3d-printing-basics-free-beginners-guide[https://perma.cc/68LN-VN4Y]. the technological advances that led to the production of a fully functioning 3D-printed weapon are fairly recent developments.6Id.  The invention of 3D printing has undoubtedly impacted a range of industries,7Hospitals across the United States and the world are incorporating 3D printing into their operations by printing prosthetic limbs and orthotic braces, creating customized medical implants, and conducting clinical trials focused on improving surgical outcomes.  See Nancy S. Giges, Top 5 Ways 3D Printing Is Changing the Medical Field, Am. Soc’y Mech. Eng’rs (May 2017), https://www.asme.org/engineering-topics/articles/manufacturing-design/top-5-ways-3d-printing-changing-medical-field [https://perma.cc/G9ZY-AUZR] (assessing how “hospitals across the U.S. and around the [world] are setting up 3D printing labs . . . so that [doctors] can incorporate the process into [their daily] work”); see also Adam Thierer & Adam Marcus, Symposium, Guns, Limbs, and Toys:  What Future for 3D Printing?, 17 Minn. J.L. Sci. & Tech. 805, 810–12 (2016) (discussing the potential benefits of 3D printing across different industries). but it has also created a host of safety concerns with potentially serious ramifications.  The dangers that 3D printing could create became publicized in 2013 when Cody Wilson, a then twenty-five-year-old law student at the University of Texas, created and successfully fired the world’s first-ever 3D-printed gun, named “the Liberator.”8Who Is Cody Wilson, the Man Behind the 3D Printed Gun?, CNN Tech. (Aug. 1, 2018, 1:01 PM), https://money.cnn.com/2018/08/01/technology/3d-printed-gun-cody-wilson-defense-distributed/index.html [https://perma.cc/ZYS5-YZNY]; Jacob Silverman, A Gun, a Printer, an Ideology, New Yorker (May 7, 2013), https:// www.newyorker.com/tech/elements/a-gun-a-printer-an-ideology [https://perma.cc/M35X-8GBZ]; Doug Gross, Video Shows Test Firing of 3-D-Printed Handgun, CNN (May 6, 2013, 7:44 PM), https://www.cnn.com/2013/05/06 /tech/innovation/3d-gun-video/index.html [https://perma.cc/ZYS5-YZNY].  Simultaneously, Wilson’s organization, Defense Distributed, released digital blueprints of the “Liberator” on its website, allowing all internet users to download and print their own guns.9Susannah Cullinane & Doug Criss, All Your Questions About 3D Guns Answered, CNN (Aug. 2, 2018, 8:24 AM), https://www.cnn.com/2018/07/31/us/3d-printed-plastic-guns/index.html [https://perma.cc/7MT5-Q7V7].

On August 8, 2018, twenty-three-year old Austin James David West was arrested at his home after sharing his plan to carry out a mass shooting at Broadview University with an untraceable 3D-printed gun.10Pat Reavy, Utahn Threatened Mass School Shooting Using 3D-Printed Gun, Police Say, Deseret News (August 28, 2018, 12:05 PM), https://www.deseretnews.com/article/900029678/utahn-threatened-mass-school-shooting-using-3d-printed-gun-police-say.html [https://perma.cc/6ZBA-8Y2M].  The authorities intervened before West harmed anyone, but this chilling incident provides a glimpse of what may be the future of crime.11See Justin Wise, Utah Man Threatened to Commit Mass School Shooting with 3D-Printed Gun:  Police Say, The Hill(Aug. 28, 2018, 4:17 PM), https://thehill.com/blogs/blog-briefing-room/news/404045-utah-man-threatened-to-commit-mass-school-shooting-with-3d [https://perma.cc/624J-S65K ] (reporting that officials seized a 3D-printed gun after reviewing West’s communications with a fellow student and charged him for “threat of violence”).

What will happen when someone does get injured or killed with a 3D-printed gun?  Who will be liable?  This Comment proposes that Defense Distributed, and other commercial sellers of CAD files, should be held strictly liable for injuries caused by defects arising out of their designs.  Part I will provide background information on the 3D printing process.12Infra part I.A.  It will also discuss Defense Distributed’s operations and provide an overview of the organization’s legal challenges that began in 2013.13Infra Section I.B.  Further, Part I will examine current gun laws in the United States and the regulations applicable to gun sellers and manufacturers.14Infra Part II.  Then, it will analyze prior judicial decisions involving lawsuits between gun manufacturers and sellers.15Infra Section II.A.  Part II will provide an overview of existing tort laws, mainly focusing on products liability.16Infra Part III.  Part III will use prior judicial decisions to apply current products liability laws to potential claims against commercial sellers like Defense Distributed.17Infra Part IV.  Part III goes on to argue that Defense Distributed, as a commercial seller, can be held liable for injuries committed with 3D-printed weapons because the design of the CAD file constitutes a product defect due to its inherently dangerous character.  Finally, the conclusion suggests that the federal government should play a central role in enacting legislation that directly addresses the legality and regulation of 3D-printed weapons.18Infra Part V.  Please note that, aside from where necessary for support and context, this Comment will not analyze Constitutional challenges associated with regulation and liability of 3D printing, nor will it focus on intellectual property concerns.  While those issues pose complex and important questions, addressing them thoroughly is beyond the scope of this Comment.

 I.   Background

A.   The 3D Printing Process

The process of 3D printing, otherwise known as additive manufacturing or rapid prototyping, involves building an object by layering many thin sheets of a material, which eventually create the predesigned product.19Introduction–What Is 3D Printing?, 3D Printing Indus., https://3dprintingindustry.com/3d-printing-basics-free-beginners-guide [https://perma.cc/HN3J-7ARS]Materials used with an FDM 3D printer are called thermoplastics.  While plastics are the most commonly used type of material, many others can be used such as metals, ceramics, paper, bio materials, and others.  Materials are often developed for specific applications.  Thierer & Marcus, supra note 7, at 807–08.  There are many different types of 3D printing processes, but the most common is the Fused Deposition Modelling (“FDM”).20Scott J. Grunewald, What You Need to Know About 3D Printed Guns and Why You Don’t Need to Fear Them, 3D Print (June 23, 2016), https://3dprint.com/139537/3d-printed-guns [https://perma.cc/B396-3P3Z].  For a description of other types of processes, see 3D Printing Processes, 3D Printing Indus., https://3dprintingindustry. com/3d-printing-basics-free-beginners-guide [https://perma.cc/ZZQ4-UJMZ].  The process is guided by an electronic file called a computer-aided design (“CAD”) file that contains the data that the 3D printer needs to produce the final object.21Introduction–What Is 3D Printing?, supra note 19.  FDM slices the CAD into thousands of thin layers, which the 3D printer uses to replicate each of the individual pieces on a printing bed.22Id.  Contrary to popular belief, a standard 3D printer does not have the capability to create an object that is composed of multiple parts, such as a gun.23Grunewald, supra note 20.  Instead, each part must be printed individually and then assembled upon completion.24Id.

The cost of 3D printing has gone down significantly in the last few years, making it more readily available to the general public.25In the early 1990s, 3D printers cost as much as $15,000 or more.  How Much Does a 3D Printer Cost?, 3D Insider, https://3dinsider.com/cost-of-3d-printer [https://perma.cc/ZJD6-423W].  Today, they range from as little as $200 up to several thousands.  Id.; Jordan L. Couch, Additively Manufacturing a Better Life:  How 3D Printing Can Change the World Without Changing the Law, 51 Gonz. L. Rev. 517, 521 (2016).  While this technology has been around since the early 1980s, recent technological developments have greatly expanded its application.26Couch, supra note 25, at 520.  3D printing has already had a transformative impact in many different fields, including medicine, food, dental, aerospace, automotive, and others.27