Can cities sue gun makers?

Following in the footsteps of successful tobacco litigation, cities are suing gun manufacturers. But many state legislatures are saying no.

When states sued the tobacco industry for the costs of smokers' illnesses, it sparked the idea for cities to sue gun manufacturers. But if many legislatures have their way, cities will be forced to leave the suing to the states.

Cities nationwide are seeking reimbursement for millions of dollars spent on police, medical and other city services in connection with criminal activity, unintentional shootings and teen suicides. Thus far, lawsuits have been introduced in Atlanta, Boston, Chicago, Miami and New Orleans. At least 41 other cities and the state of New York have announced that they are considering legal action.

Cities allege that manufacturers have failed to include safety devices to prevent children and other unauthorized users from firing guns.

The Miami lawsuit, like those filed in Atlanta and New Orleans, targets the way guns are manufactured rather than the way they're distributed. The suits claim gun manufacturers should do more to ensure that the weapons cannot be misused by criminals or children by including trigger locks and "smart gun" technologies that permit only an owner to fire them.

Chicago is suing the industry as a public nuisance, claiming that makers and suburban gun shops have knowingly marketed and sold weapons to criminals. The Chicago suit names 12 gun shops, 22 manufacturers and four distributors, and cites an undercover investigation where officers posed as gang members and bought 171 guns in a three-month period last year from shops in the city's suburbs. The suit alleges that employees helped buyers evade weapons laws.

Manufacturers maintain that their products are safe when used properly, and they bear no responsibility for unscrupulous dealers or for the actions of criminals or others who fail to use the guns as they were intended.

Cases against dealers have met with success more frequently than cases against manufacturers. In Kitchen vs. K-Mart Corp., for example, a Florida jury found a dealer liable for injuries caused when Deborah Kitchen's ex-boyfriend shot her. K-Mart bad ignored the man's apparent intoxication when it sold him the gun.

In other cases, however, juries have refused to find manufacturers liable for harm caused in criminal and accidental shootings. In Dix vs. Beretta U.S.A. Corp., a recent California case, a jury failed to find the maker at fault in the death of Kenzo Dix, a 15-year-old killed by a friend who thought a Beretta 9mm semi-automatic was unloaded.

But in a recent New York case - Hamilton vs. Accu-Tek - jurors decided 15 gun manufacturers were negligent in the marketing and distribution of their products in Brooklyn. The decision could lead to similar success in future cases, but lawmakers in some states believe cities suing gun manufacturers are out of line.

Legislators and legal scholars opposed to such lawsuits express concern about holding manufacturers accountable for results beyond their control. "If a gun is defective or not safe, there are standard product liability laws to handle it. But they're trying to condemn guns all across the board, not just the unsafe ones," says Sam Blair Jr. of Memphis, an expert in mass tort lawsuits.

Georgia Senate Minority Leader Eric Johnson supports efforts to keep cities from suing gun manufacturers. Also needing protection, he says, "are other industries that make a legal product where potential class action lawsuits could develop - automobiles, alcohol, clothing and construction industries as well as many others."

Georgia passed a law in February, barring cities from suing gun manufacturers, which nullified Atlanta's lawsuit. Similar legislation has been introduced in Alabama, Alaska, Arkansas, Kansas, Montana, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Vermont and Wyoming. The Colorado Senate passed a provision barring cities from suing gun manufacturers. It is pending in the House.

In Florida, legislators are considering whether to make lawsuits against gun manufacturers a crime. Under the proposed statute, Miami Mayor Alex Penelas would be guilty of a third-degree felony for filing his suit.

Pennsylvania is the first state with legislation on both sides of the issue. Representative Teresa Forcier has introduced a bill that would prohibit Philadelphia and other municipalities from suing gun manufacturers. Calling the lawsuits "frivolous," Forcier says they are "a threat to our [constitutional] right to bear arms, and that they "abuse the tort liability system."

In direct contrast is Representative Dwight Evans' bill that would guarantee cities and individuals the right to bring civil action against gun makers for negligence in manufacturing, distribution or sales. It would allow cities to recover the costs of health care, law enforcement and corrections arising out of the discharge of firearms.

"My legislation is about protecting every citizen's right to live in a community free of constant fear caused by the epidemic of gun violence," said Evans.

Congress also is eyeing the issue. Georgia Congressman Bob Barr has introduced a bill to prohibit cities from suing gun makers; California Senator Barbara Boxer has expressed intent to introduce legislation permitting such suits.

Kelly Anders tracks gun control issues for NCSL.