Gun smoke

Can the unprecedented legal challenge to gun manufacturers withstand the counterattack of the NRA and Bob Barr?

Published March 11, 1999 8:00PM (EST)

Lifting a page from the recent settlement scored by states against the tobacco industry, some of the cities hit hardest by gun violence are suing firearms manufacturers. Cities like Chicago, New Orleans, Miami and Bridgeport, Conn., grappling with the bleeding economic reality of gunshot wounds, want to recoup the costs of gun violence from weapons manufacturers.

The past two months have seen that effort gain momentum. First, a jury in an important test case in Brooklyn held that gunmakers had acted negligently by flooding laxly regulated Southern states with weapons, despite knowledge these guns would, in all probability, get trafficked to Northeastern states with stricter gun laws. NAACP President Kweisi Mfume, pointing to gun violence's disproportionate impact on blacks, says his organization may jump into the fray, either filing its own suit or signing on to the city cases.

But the deep-pocketed pro-gun lobby is swiftly mobilizing its defense. National Rifle Association grass-roots efforts have already led to the introduction of legislation in Washington and 10 states that would prohibit local communities from suing gunmakers. NRA board member and gun enthusiast Rep. Bob Barr, R-Ga., proposed congressional legislation Tuesday that would curtail state and city lawsuits. Barr called the suits "a greed-driven attempt to abuse the courts, short circuit the legislative process and shut down law-abiding industries." Proposed Florida legislation would retroactively halt a lawsuit filed by Miami-Dade County and make it a felony for any local government official to file a gun suit. Georgia legislators have already passed a similar bill.

Cities may be appropriating the states' tobacco litigation acumen, but don't expect to see anything as colossal as the $206 billion settlement last November between the tobacco industry and 46 states. Cashiers ring up $48 billion a year in cancer sticks, but only $1.4 billion worth of guns and ammo. But when you look at the economics, the injury the tobacco and gun industries inflict is comparable. The cost of treatment and lost productivity to smoke-related illnesses is greater than $100 billion a year. Meanwhile, the cost of treating gunshot wounds alone, not including productivity losses, is a staggering $112 billion a year.

Salon recently discussed the gun suits with Tom Diaz, author of "Making a Killing: The Business of Guns in America" and a senior policy analyst at the Violence Policy Center, a non-partisan policy institute in Washington that battles gun violence.

How does the recent wave of lawsuits by cities against gunmakers compare to the tobacco lawsuits brought by the states?

The most striking similarities are that, like the tobacco industry, the firearms industry is not regulated for product health and safety. For consumers, litigation is the only recourse for recovering damages or preventing injury. The city lawsuits signal that, like the tobacco litigation, there is a strategy to hold the industry responsible for the costs it inflicts on the general population, but does not build into the costs of its products. If the gun industry had to underwrite medical and other costs, its products would cost a lot more.

The Brooklyn case marks the first time a judge has allowed this legal theory to go forward and a jury has found that the industry has a duty higher than simply obeying the letter of the law. That duty includes taking care of how its products are distributed. It's an important development that will strengthen the cities' cases and give encouragement to municipalities and states to build on this legal theory and litigation. The industry's going to be finding itself facing these and other innovative legal theories.

How do the gun suits differ from the tobacco cases?

The gun industry is much smaller than the tobacco industry. Its pockets aren't as deep, and the potential for rewards isn't as sizable. Even if you bring in every collateral defendant you can think of -- like the industry associations -- you're not going to get anywhere near the tobacco products settlements. The industry also makes the point that if you use a cigarette precisely as intended -- if you smoke it -- that it's going to have bad effects. But they say a firearm is different, because if it's used as intended, no one will get hurt. That sounds persuasive, but not when you consider that the industry designs firearms that have almost exclusive utility as implements for shooting people and killing them. You can't just say this wasn't designed to kill somebody -- or, if it gets used to kill somebody, it's not our problem. That's really at the nub of some of these new theories. The industry says it's different from tobacco, but we say that when you take into account everything about the industry, including how it markets guns, how it designs guns, that that distinction doesn't exist.

Why are the lawsuits happening at the city rather than the state or federal level, as we saw in the tobacco cases?

The states based their damages on Medicaid claims, which are typically the age range of people with tobacco-related illnesses. Cities are in a different situation: It's the municipalities that bear most of the burden of gun violence. They have to run trauma centers, they have to run law enforcement, they have to do local prosecutions. Some states are considering the possibility, but it's more difficult because state legislatures are largely controlled by rural constituencies, which are less favorably disposed to this kind of litigation. Rural legislators are more likely to be people who are disposed to hunting and other recreational uses of firearms.

In the state lawsuits, the plaintiffs sought Medicaid reimbursements. What are the cities demanding from gun manufacturers?

The major element is health care. It's not just the immediate trauma care and running a trauma center, but also the subsequent after-care -- rehabilitation, law enforcement operations that have gun units and the cost of prosecuting gun crimes. In Chicago, they want a share of police costs that are attributed to gun violence and prosecuting violations. The New Orleans case is essentially the same as Chicago, but they have thrown in some other elements, like the loss of tax revenues due to loss of productivity.

What legal strategies are the cities using? We've heard terms like "negligent distribution" and "public nuisance."

Chicago and New Orleans are the prototypes of two different legal theories. Chicago is using a "nuisance theory," but the term I like to use is "promiscuous distribution." It's a distribution case where they're asking, Did the industry deliberately flood the market with guns? Chicago conducted an undercover investigation at the retail level, and found shocking practices. Chicago and Cook County have strong gun laws -- the rest of Illinois less so. Criminals and others who want guns in Chicago have been going to gun stores [outside] the city, buying firearms and bringing them into Chicago. The conduct [investigators] found at at least a dozen retail shops was shocking. There were clear instances where the dealers not only had to know they were selling to people who planned to transport them into Chicago, but that they intended to use them for criminal purposes. Moving up to the wholesale and manufacturing level, what Chicago is saying is that they flooded the market in surrounding counties in Illinois, knowing guns would be diverted into the Chicago market.

The New Orleans case is about product design. They're saying: You could have made your guns a lot safer. You could have put various safety devices on the guns. The case goes so far as to suggest that the industry should have manufactured the so-called smart gun. But the issue is, Does that technology even exist, and is it a reasonable claim to make against the industry? The case presents some serious conceptual problems.

Are there legal precedents to support the cities' litigation strategies?

This is new ground. I think the closest case was asbestos, where you had an industry that was held liable in mass torts for a product that the legal system said was so dangerous, and had such a profound effect on non-consumers. People didn't buy it and stuff it up their nose, they got exposed to it, which is what happens with guns. Gun owners are a minority in America, but the damage they inflict is almost equivalent to automobile owners. And that's the function of tort law in our society. Everyone likes to scream about shark lawyers, but when you have a product that hurts lots of people, sooner or later our legal system finds a way to balance the cost to stop the bad process.

I find it ironic that the most vociferous libertarians have said in other contexts that we don't need regulatory agencies because we have this tort system that brings to account economic wrongdoers.

What steps is the gun industry taking to defend itself?

In addition to hiring good law firms, the industry has mounted an attack at the state level in an effort to cut these lawsuits off at the knees. That's what happened in Georgia, and there's also a bill pending in Louisiana. They will do one of two things: Either they will get legislation to ban cities from hiring lawyers on a contingency-fee basis or they will get the states to ban cities from bringing suits against firearms manufacturers. They could say that since cities are creatures of the state, litigation should be the state's decision. This has been an expression of the National Rifle Association's power -- they're leading the legislation strategy. The NRA is probably the best lobbying organization in the world. But there's a question as to whether the industry as a whole has a real strategy. They can activate their people all over, whereas the tobacco industry had to fall back on tobacco-producing states for support. Their allies peeled off.

Congress introduced legislation this week that would ban the gun suits. What are the chances of the legislation passing?

Bob Barr is the legislative arm of the NRA -- he's on their board and was a leader in the move to repeal the assault weapons ban. He's Mr. Gun. Anyone who has seen Bob Barr in full rant knows that this is typical of his hypocritical legislation. But remember, it was Barr who attacked federal funding for local crime initiatives in the past, saying the choice should be at local, not federal, level. Now he's saying the federal government should interfere with local government. I don't think Clinton would sign this bill, so it won't go anywhere. And hopefully it won't cost the country as much as impeachment did. Even in the Republican Party, Barr represents an extreme wing that the leadership is not really comfortable with. They may give it some lip service -- it could move to the floor on a day when moonbeams are particularly strong, but it would never make it through the Senate.

Does the Second Amendment (the right to keep and bear arms) protect gunmakers from these lawsuits?

The Second Amendment argument that you always get into is just fruitless -- it's probably the most bogus articulation of all. Whatever the Second Amendment means, it's clear that it applies only to action by the federal government. It doesn't apply since none of these lawsuits would prevent gun companies from making firearms. They would simply make them factor in damages they inflict on non-gun users. Gun users might have to pay more for their toys.

The gun suits are a remarkable piece of social engineering on the part of the cities. But Americans are a gun-loving people. Do you see broad support for the suits or a public backlash against them?

There's no question the American love affair with guns is fading. The principal reason is that we're changing from an agrarian economy to an urban and suburban economy. The current manifestation is that hunting is clearly in decline. In the next quarter century, hunting will effectively disappear. For the gun industry, this means lots of children today aren't being exposed to firearms. It's been proven that exposure to firearms as a youth is one of the leading indicators of whether or not a person will be a fan or purchaser of guns in the future. Kids today would rather go on the Internet or play computer games than shoot a deer. But public antagonism toward lawyers and litigation clouds the issue. Until you see a movie like "A Civil Action," you don't see that sometimes litigation is the only solution. It's easy to dismiss this as a bunch of lawyers trying to make a buck.

The gun issue also involves demographics -- race, class and urban vs. rural. In different communities, you will see different attitudes. In Chicago, I've spoken to people who don't understand why these lawsuits can't be slam-dunk cases. They can't understand why anybody would oppose them. But I also often participate in call-in radio programs, where I encounter a lot of people who feel strongly the other way. Opinions ultimately break down along demographic lines. But the developing consensus is that we need stricter gun control.

By Daryl Lindsey

Daryl Lindsey is associate editor of Salon News and an Arthur Burns fellow. He currently lives in Berlin and writes for Salon and Die Welt.

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