Cities, gun makers keep firing.

Weapons are drawn as cities and gun control advocates continue their legal battle against firearm manufacturers.

Ohio's Supreme Court has become the highest state court thus far to agree to review one of dozens of cases filed across the country. On January 17, it allowed Cincinnati's appeal of the dismissal of its lawsuit against firearm manufacturer Beretta U.S.A. Corp. and others. (City of Cincinnati v. Beretta U.S.A. Corp., 740 N.E. 2d 1111 (Ohio 2001).) The parties could file a first round of briefs as early as this month.

Meanwhile, attorneys for Philadelphia have filed a notice of appeal of the dismissal of that city's lawsuit against gun manufacturers. (City of Philadelphia v. Beretta U.S.A. Corp., No. CIV. A. 2000-CV-2463, 2000 WL 1871712 (E.D. Pa. Dec. 20, 2000).) "The easy availability of handguns is one of the greatest problems we have in this city," said city solicitor Ken Trujillo. "We feel that it's important not only for Philadelphia, but for cities across the country."

More cities, however, are facing dismissal of their lawsuits seeking to recover the costs of gun violence from firearm manufacturers. In January, the suit filed by Gary, Indiana, became another casualty of a motion to dismiss for failure to state a claim on which relief could be granted. The Indiana case brought the total number of dismissals to seven--half of the motions to dismiss decided so far. Both sides in the case are voicing optimism.

Despite the three recent dismissals, gun control advocates believe gun manufacturers, like cigarette manufacturers, will face their days in court. "To be batting 500 on motions to dismiss is quite good," said Dennis Henigan, legal director of the Washington, D.C.-based Center to Prevent Handgun Violence. Lawsuits against the gun industry are difficult, he said, because they present novel legal issues.

Henigan believes the discovery process may turn the tide by revealing evidence damaging to the gun industry. "In the tobacco litigation, it was the discovery process that changed everything.... I think the gun industry's worst nightmare is it would have to go through similar discovery," Henigan said.

Gun control advocates fault not just gun manufacturing, but also distribution. Henigan claimed that a high percentage of guns are sold to the criminal market and alleged that the industry counts on those sales for its profits. "The vast majority [of guns used in crimes] aren't stolen," Henigan said. "They're bought." Guns used in crimes, he said, have typically been purchased recently.

Henigan scoffed at the argument that without access to guns, criminals would find other weapons. "Who ever heard of a drive-by knifing?" Henigan asked. "Guns are the one product we sell in this country that's designed to kill and maim. It's the one consumer product designed to be lethal."

The courts dismissing the cases have generally held that the cities' claims are too remote and that the plaintiffs have failed to meet the requirements establishing the various torts alleged in the complaints. "Using a shotgun approach in its complaint, the city has made its broad assertions without alleging a direct injury caused by a particular firearm model or its manufacturer," the Ohio Appeals Court ruled in the Cincinnati case. "The city's attempts to stand in the shoes of its citizens and to recover its municipal costs must fail."

The lead defendant in the Cincinnati and Philadelphia cases, Beretta U.S.A. Corp., is showing no signs of retreat and said there are no settlement talks under way.

Since 1999, Beretta, which supplies sidearms to the U.S. military and service weapons to 1,800 police departments, has pledged 1 percent of its sales revenues to The Heritage Fund, established to help fight the lawsuits. The company's general counsel, Jeff Reh, said the pledge applies only to civilian sales, not to its military or police sales.

"Beretta feels these lawsuits are without any legal merit," said the company's attorney, Lawrence Greenwald. "The social problems that cities are trying to address would be better addressed by other means, particularly by legislation."

"What the plaintiffs ignore in these lawsuits is the incredible level of scrutiny applied by the manufacturers to the distribution process," Reh said. "Companies like Beretta take extraordinary steps to make sure their weapons are bought by responsible, law-abiding people." The company conducts internal audits and conducts seminars to educate dealers about straw buyers and other problems with distribution. The company is also subject to annual audits by the federal Bureau of Alcohol, Tobacco, and Firearms.

"I don't know that there's much more the manufacturers can do," Reh said.

The two sides are now awaiting a ruling that could determine whether the battle will escalate to the state government level. On January 31, Manhattan's trial court heard arguments on a motion to dismiss New York state's lawsuit against firearm manufacturers. It is the first such lawsuit filed by a state, rather than a municipal, government.