Taking Their BEST SHOT: Fed up with gun violence, some cities may copy an Illinois father'stobacco-style suit against gun makersAuthor(s): MICHAEL HIGGINSSource: ABA Journal, Vol. 84, No. 8 (AUGUST 1998), pp. 79-81Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27840384 .

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PRODUCT LIABILITY

Taking Their

BESTSHOT Fed up with gun violence, some cities may copy an Illinois father's tobacco-style suit against gun makers BY MICHAEL HIGGINS

Andrew Young never had a chance to fight back. Two teenagers ambushed the 19

year-old college student two years ago at a stoplight in Chicago, ap parently mistaking him for a rival gang member. He died from a gun shot to the heart.

But Young's father, Stephen, is fighting back against gun vio lence?in an unusual way that may soon become commonplace. In June, he joined two other parents of mur dered children in a lawsuit against three gun manufacturers. The suit, filed in state court in Chicago, al leges gun industry practices steer guns to criminals.

"Somebody sold a gun knowing there was a good possibility it might fall into criminal hands," says Ste phen Young, a piano technician from subur ban Evanston, 111. "I'd like to put responsibility on [that person's] doorstep."

Young's lawsuit is emblematic of a new wave

of optimism among anti

STEPHEN YOUNG: Wants to put responsibility for son Andrew's murder on gun makers' doorsteps*

ABAJ/ROBERT A. DAVIS

gun activists. For years, courts have been virtually unanimous in re jecting claims that gun makers are responsible for how criminals use their products. And manufactur ers, of course, deny they market to criminals.

The Tobacco Track But, buoyed by the tobacco in

dustry's retreat on smoking liabili ty, some gun opponents now say it is just a matter of time before the tide turns. And in a development with a potentially huge impact, some big city mayors are considering wheth

er to file what could be mas sive lawsuits against the ? gun industry.

Gun litigation "is going to be exceedingly big," predicts Kip Read er of Cleveland, incoming chair of the aba Tort and Insurance Practice Section. "You are talking hundreds of million of dollars at least" in po tential liability per year.

Tort lawyers are already pre paring to study up on gun liability issues. Tips and the aba Coordinat ing Committee on Gun Violence plan to hold a national cle program on the subject, perhaps as early as this spring.

Yet questions abound: How do jiit?^to. gun-industry policies contrib-

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Do anti-gun activists have a legal theory that holds water? And should judges and juries set the nation's gun policy?

Key legal cases that may offer some answers are pending. Among them: a huge, mass-tort gun case, with some 80 handgun makers as defendants, set for trial this fall.

Though violent crime is down nationwide, gun violence is still a formidable problem. In 1993 about 70 percent of the 24,526 murders in the nation were committed with firearms, according to the U.S. Bu reau of Justice Statistics.

In Chicago and Philadelphia, where officials are considering filing lawsuits against gun makers, the frustration is palpable.

Chicago's gun laws are among the toughest in the nation. Still, the city had 521 handgun homicides in 1996. The city of Philadelphia had 340 murders last year involving handguns, officials there say. "It is almost epidemic here," says ,_ deputy mayor Kevin Feel ey. "We need help any way we can get it."

So far, lawsuits have not been the way. "About 99.8 percent" of the cases have favored gun makers, notes Richard Feldman, executive director of the American Shooting Sports Council, a trade associa tion for gun makers.

In the past decade, several legal theories have been thrown on the dust heap. Are dangerous guns a defective product? No, courts say, because they work as intended. Is it negligent to make guns extremely lethal? No, it is up to the legislature to set those limits. Is gun mak ing an ultrahazardous ac tivity, suitable for strict liability? No, it is the use of the product that injures people.

The lone anti-gun vic tory came 13 years ago, when Maryland's highest court ruled that gun mak ers could be liable for the criminal use of cheap, in accurate handguns known as Saturday night spe cials. The state legislature effectively overruled the decision in 1988.

But anti-gun activists

are not deterred. They are pushing two newer legal theories. Under the first, negligent marketing, they con tend that gun makers sell their prod ucts in a way that makes them ap pealing?and accessible?to street gang members and other thugs. The second, public nuisance, is based on the idea that widely available guns threaten the public's right to health and safety, much like a polluting factory.

In some instances, critics say, gun makers feed the criminal mar ket by devising weapons that are cheap and easy to conceal. In others, they market highly lethal weapons in a way that gives them a dark, outlaw appeal. Gun maker S.W. Daniel Inc., for example, advertised its Cobray M-ll/9 assault pistol as, "The gun that made the '80s roar."

Gun makers also acquiesce in a system that fosters illegal sales, critics contend. Distributors sell to "kitchen-table" dealers?licensed

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gun dealers without a set business address. "Straw purchasers" buy large numbers of guns, then pass them on to felons or juveniles.

Those practices are wildly ir responsible, says Locke Bowman, legal director of the University of Chicago's MacArthur Justice Foun dation, who is using the theories in the lawsuit he filed for Young.

Tobacco companies pay lip ser vice, at least, to preventing under age smoking. Beer makers cam paign against drunk driving. "In the gun industry, there's zip," Bow

man says. "Nothing."

Theories on Trial Some early results suggest that

the new anti-gun theories may not fare any better than the old.

In March, a federal judge in Chicago rejected a public nuisance claim against Florida-based Nav egar, maker of the infamous TEC DC9 assault pistol. The gun had

_ been used in the 1985 shoot ings of two police officers.

Plaintiffs attacked Nav egar? marketing, pointing in part to an ad that boast ed of the gun's "exceptional resistance to fingerprints." But U.S. District Judge Da vid Coar ruled there was no precedent to expand the nui sance doctrine to cover what criminals do with a manu facturer's product.

Last year, a California state judge dismissed a mar keting-related suit against Navegar, this one stem ming from a 1993 shooting in which eight people were killed at the San Francisco office of law firm Pettit &

Martin. The Florida-based gun maker sold the product legally in its home state and didn't owe a duty of care to the victims in California, Judge James Warren ruled.

Only Judge Jack Wein stein of the U.S. District Court for the Eastern Dis trict of New York has been willing to open the door to liability. In March, he al lowed a jury to hear claims against S.W. Daniel Inc. for the use of its Cobray M-ll/9 pistol in the murder of a 16 year-old student.

Attorneys for the boy's family argued that the gun

maker was irresponsible in

80 ABA JOURNAL / AUGUST 1998

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selling the weapon as a "gun kit" through the mail, using an 800 number.

But the jury sided with the gun maker. Richard Davis, a lawyer for the family, said jurors told him af terward that because the killer had access to other weapons as well, they weren't willing to hold S.W. Daniel responsible.

The persistent losses have even some anti-gun activists urging restraint. Filing lawsuits that don't win only piles up more bad precedent, says Tom Diaz, senior policy analyst at the Violence Policy Center in Washington, D.C.

"A lot of lawyers think these are like slip-and-fall cases: 'Bad gun industry. Let's sue,'

" says Diaz, a

former Democratic counsel on the House Crime Sub committee. "It doesn't work that way. The gun indus try has been around a long time. It has a lot of good precedent on its side."

Diaz suspects it will take another two years or

more of factual research to develop a winning case.

An Industry Targeted With the tobacco com

panies making settlement offers worth hundreds of billions of dollars, few anti gun lawyers seem to share Diaz's sense of caution. They are looking ahead to a second case, also in

Weinstein's court, set for trial this fall. The plain tiffs in Hamilton v. Accu Tek will cast a wider net, naming virtually all hand gun makers as defendants.

The key is keeping up the pressure, says Dennis Henigan, legal director of the Center to Pre vent Handgun Violence. "It did not take many victories to bring the to bacco industry to the bargaining table," he notes.

Gun makers are confident they will win the Hamilton case, says Feldman of the Shooting Sports Council. He scoffs at the idea that gun makers market to juveniles or crooks. Manufacturers sell guns to only 200 or so wholesale distribu tors, and they don't control where their product goes after that.

Moreover, "Anyone who says we

intentionally sell guns to criminals has no clue how little profit there is in guns," he says. "You have to sell an awful lot of guns to defend one case."

He says the Hamilton defen dants have already spent $2 million defending themselves. And that, gun makers know, is just a taste of the cost they could incur if govern

Though violent crime is down nationwide, gun violence is still a formidable problem.

ment entities begin filing anti-gun lawsuits.

Anti-gun activists call it the tobacco model: Government entities file well-financed lawsuits. The dis covery process probes deeper and deeper into how the companies do business.

"What broke the back of tobac co was the states' attorneys gener al," says lawyer Davis. "If any one of these municipalities can figure out a way to stay in court, that would have a major impact."

The gun industry sees the to bacco parallels as wishful thinking.

Guns don't cause harm when people use them as the manufacturers in tend, Feldman notes. And unlike to bacco companies, gun makers have always conceded their product is dangerous. Says Feldman, "This in dustry has no secrets."

Spurred by Philadelphia Mayor Ed Rendell's lawsuit talk, industry

officials have established a joint task force with the U.S. Confer ence of Mayors to discuss gun vi olence issues. And Feldman is emphasizing possible points of agreement.

! The industry, for example, favors giving gun distributors a better way to confirm that deal ers haven't had their licenses re voked. It also supports back

y ground checks on buyers and tougher prosecution of those

I straw purchasers who do get I caught. Last year, in a move ap

plauded by President Clinton, fj the largest handgun companies

I voluntarily agreed to ship child 1 safety locks with their weapons,

j Still, making peace may not Ibe easy. Ask Feldman about sug

gestions to limit handgun sales to individuals to five guns a month, and he says it would be unfair to

I collectors. Ask about gun ads that

I play to military fantasies, and he says it is Hollywood that is the real villain.

Those answers are unlikely to satisfy the mayors of Philadel phia and Chicago, or the families of victims of gun violence.

Of course gun maker law suits, like suits over tobacco or

d breast implants, raise the issue of whether the courtroom is the best place to decide whether?or how?a given product should be sold to the public.

Parents such as Young, who now works part time at a victims' advocacy group, have no qualms

about bypassing the legislature. Polls already show support for tougher gun laws, he says. "If the politicians were in step with the public, we wouldn't need lawsuits like this."

Now some big-city mayors, too, seem willing to let courts tackle gun violence. Do courts want the job? The showdown over that issue may not be too far away.

Michael Higgins, a lawyer, is a

reporter for the ABA Journal. His e mail address is higginsm@staff abanet.org.

AP PHOTO/RUTLAND HERALD/VYTO STARINSKAS ABA JOURNAL / AUGUST 1 998 81

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