In her analysis of gun manufacturer lawsuits ("Showdown Over Guns Drags on in Courts," Detroit Free Press, January 3, 2003), Ruby L. Bailey reported that when Detroit became the fourth city to file suit against the nation's gun makers in 1999, city officials estimated that gun violence cost the city $40 million a year. This figure covered costs "to send out the police, treat the uninsured, bury the dead and clean the blood from the streets." Bailey wrote that the delays in getting the gun lawsuits through the courts were due to the estimated $10 million the gun industry had spent vigorously defending itself, and to National Rifle Association lobbying efforts that had succeeded in getting legislatures in thirty-one states to grant immunity to the gun industry against such lawsuits. Georgia was the first state to pass legislation barring its cities from gun litigation (1999) after heavy lobbying by the National Rifle Association.
The cities involved in the lawsuits claim that gun manufacturers flood local markets with too many guns and then close their eyes to the inevitable results. Some cities claim that firearms manufacturers' distribution systems are a public nuisance. Jon Vernick, co-director of the Center for Gun Policy and Research at Johns Hopkins University in Baltimore, told Bailey, "The cities are arguing [gun manufacturers] must know that some of this oversupply will end up in the hands of the unlawful market." Matt Nosanchuk of the Violence Policy Center, which is assisting the cities in the lawsuits, told Bailey, "The American people need to understand that all we're asking in these lawsuits is for the gun industry to take responsibility for what it does. Not to take responsibility for what a shooter does. But to take responsibility for what it does." In their lawsuits, cities are asking (among other things) that firearms manufacturers install built-in safety mechanisms and "smart-gun technology." When perfected, such technology might use radio frequency to identify and approve the shooter before the weapon can be fired.
According to David Kairys, a professor of law at Temple University, the level of damage attributable to gun violence demands that holding handgun manufacturers responsible should be at the forefront of public debate:
An extraordinary level of deaths and injuries is associated with [guns]: about fifty dead people per day. Another 150 to 200 per day are injured but not killed. These numbers are so large, and the loss of life and injury are so awful, in terms of the effect on individuals and on society, that they are difficult to deal with. This probably contributes to the denial and avoidance that characterize public debate on the issue. But, at the very least, society has every reason to expect, morally and legally, extraordinary diligence on the part of manufacturers who profit from sale of a product designed to kill that is associated with such enormous harm ("The Cities Take the Initiative," in Guns, Crimes, and Punishment in America, edited by Bernard E. Harcourt, New York: New York University Press, 2003).
Kairys goes on to assert that handgun manufacturers should be held liable for creating or contributing to a public nuisance:
The conduct by the manufacturers at issue is not related to their manufacture of handguns, nor is the claim based on any defect in their products. The conduct that forms the basis of the claim is their distribution of handguns. The public nuisance is not handguns or criminals but those items in combination—criminals and youths with handguns—a combination that manufacturers facilitate with full knowledge of what they are doing and of the consequences. This claim does not require any reform or change in the law; it is based on a straightforward application of the traditional, settled elements and rules of public nuisance to the new facts presented.
Some observers think these issues should be decided by legislatures, not by courts. But gun control advocates charge that state legislatures and Congress are too much influenced by the gun industry and the National Rifle Association. They say that since legislatures cannot be relied upon to enact adequate gun controls, the courts must step in.
Most suits brought by individuals against gun manufacturers have been defeated. In the case of lawsuits initiated by cities, gun control advocates hoped that jurors would agree that the entire public is burdened by the costs resulting from the use of a dangerous product. However, the majority of these lawsuits have not been successful. While the lawsuits have not justified the hopes of gun control advocates, they may have inspired gun manufacturers to monitor themselves. Several are now making guns with internal locking systems and others are working to develop smart-gun technology. The industry has spent millions on firearms safety education for children.
Smith & Wesson Makes a Deal
The cost of defending against lawsuits grew too high for Smith & Wesson, the nation's largest firearms manufacturer. In March 2000 the company signed a deal with the federal government agreeing, among other things, to limit its dealers to selling one gun per customer per day and to install internal locking devices in its guns within two years. The pact was called a landmark, and seventeen cities that had filed suit against gun manufacturers agreed to drop their suits against Smith & Wesson. It was hoped that other firearms manufacturers would be persuaded to make similar deals.
Gun rights advocates were unhappy with Smith & Wesson's deal. They declared the company's president a traitor and called for a boycott of the company's products. Within a year, the much-praised deal was abandoned by both sides.
A Major Defeat for Gun Control in Brooklyn
In the 1999 case Hamilton v. Accu-Tek (935 F.Supp. 1307 [E.D.N.Y. 1996]), a jury in Brooklyn, New York, found gun manufacturers liable for shootings with illegally obtained handguns. The lawsuit, filed by the relatives of six people killed in New York City by handguns, charged twenty-five gun manufacturers with liability. The suit claimed that the manufacturers had been negligent in their marketing and distribution practices by oversupplying southern states with weak gun laws, knowing that the guns would travel to states with strict regulations, like New York, and end up in the hands of criminals.
The Brooklyn jury found nine of the twenty-five manufacturers collectively liable for three of the shootings but awarded no damages to relatives of the homicide victims. The jury found that a surviving victim was entitled to $3.95 million from three of the manufacturers—American Arms, Beretta U.S.A., and Taurus International Manufacturing. Gun control advocates claimed victory because, for the first time, a jury had found gun manufacturers liable for deaths and injuries caused by guns. Gun manufacturers also claimed victory because no damages were awarded for six of the seven shootings involved in the suit.
The case was appealed. In April 2001 the New York Court of Appeals unanimously ruled that victims of firearms-related violence cannot sue manufacturers for the criminal misuse of a non-defective product. The court stated: "Federal law already has implemented a statutory and regulatory scheme to ensure seller 'responsibility' through licensing requirements and buyer 'responsibility' through background checks." In response to the court's decision, National Shooting Sports Foundation President Robert T. Delfay stated: "We trust this puts the final nail in the coffin of this distasteful experiment to harass legal and responsible manufacturers through unproven and convoluted legal theory."
Lawsuits in Cincinnati and California
Gun control advocates hailed a June 2002 decision by the Ohio Supreme Court to allow the city of Cincinnati to proceed with a lawsuit against sixteen gun manufacturers, reversing a lower court's dismissal of the city's case (City of Cincinnati v. Beretta U.S.A. Corp., No. A9902369 [Court of Common Pleas, Hamilton County, Ohio]). The city claimed that the industry's design, distribution, and marketing policies made firearms too easily available to children and criminals. The Brady Center called the ruling "the most important legal victory ever achieved against the gun industry." In April 2003, however, the city council voted to drop the lawsuit because of the uncertain outcome and the mounting legal costs involved. The Brady Center maintained that the evidence gathered and the decision of the Ohio Supreme Court would assist other municipalities with their legal battles against gun manufacturers ("The Legal Action Project: Reforming the Gun Industry: City of Cincinnati v. Beretta U.S.A. Corp.," http://www.gunlawsuits.org/docket/cities/cityview.php?RecordNo=11 [accessed January 30, 2005]).
Meanwhile, a similar case was proceeding through the legal system in California (People of the State of California v. Arcadia Machine & Tool, Inc. [4095]); the case consolidated twelve cases brought by California cities in 1999. California is the first state in the nation to repeal legislation granting legal immunity to the gun industry against negligence suits (September 2002). The repeal of the 1983 law was prompted by a 2001 California Supreme Court finding that Navegar, maker of a banned TEC-9 assault weapon, could not be held responsible for criminal use of the weapon because of the 1983 law (Merrill v. Navegar [No. A079863]). The company had allegedly designed and marketed the weapon for criminals, placing advertisements in Soldier of Fortune magazine that highlighted the weapon's "excellent resistance to fingerprints" and "high volume of firepower."
Shortly before Arcadia was scheduled to come to trial in the Superior Court for the County of San Diego in October, 2003, two California gun dealers and three gun distributors agreed to revise the way they do business in exchange for being released from the lawsuit. They agreed to take the following steps:
- Not sell firearms at gun shows;
- Annually train all employees how to recognize and block sales to straw purchasers;
- Resolve to go beyond the law in order to verify the identity of the actual purchaser of a firearm;
- Maintain electronic records of all firearm trace requests conducted by the ATF and provide that information to gun manufacturer and distributors upon request, which would allow them to monitor the conduct of dealers who sell their firearms.
In contrast, another California case, Ileto v. Gock (03 C.D.O.S. 9984), ruled that gun manufacturers were liable for injuries inflicted by a gunman. In this case, the court used theories of negligence, not gun liability. The case originated with the actions of Buford Furrow, who shot and injured three young children, one teenager, and one adult at a Granada Hills Jewish Community Center on August 10, 1999. Later that same day, he shot and killed Joseph Ileto, a U.S. Postal worker. Furrow was convicted and sentenced to prison. The parents of Ileto and the three injured children filed a suit in Los Angeles County Superior Circuit Court against several parties who had been involved in the manufacture, distribution, and sale of Furrow's firearms on the grounds of negligence. The plaintiffs argued that the gun manufacturers produced and marketed more firearms than the demand of the legitimate market; subsequently, the excess guns flowed to a secondary market, where they were then purchased illegally by dangerous individuals.
Dismissed by a lower court, the case was appealed to the Ninth Circuit Court of Appeals. On November 20, 2003, the court reversed the decision of the lower court. They argued that gun manufacturers should be responsible for preventing the distribution of guns from reaching the hands of criminals; in this case, the gun manufacturers knew that their distribution scheme would result in criminals, like Furrow, purchasing a gun and using it in a manner detrimental to public safety. In conclusion, the plaintiffs could go forward with their claims of wrongful death. In his decision, Judge Richard Paez of the Ninth Circuit Court argued:
The social value of manufacturing and distributing guns without taking basic steps to prevent these guns from reaching illegal purchasers and possessors cannot outweigh the public interest in keeping guns out of the hands of illegal purchasers and possessors who in turn use them in crimes like the one that prompted plaintiffs' action here.
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