Gunning for justice: recent litigation has targeted the way firearms manufacturers design and distribute their products. Courts have upheld some claims and dismissed others. The author explores the recent case law.

In courts across the country, plaintiffs are demanding that the gun industry be held accountable for dangerous and irresponsible practices. The premise of the lawsuits is that gun manufacturers could design and distribute their products more safely and prevent many serious injuries and deaths.

Just as car manufacturers have been held liable for failing to implement safer designs, gun makers should be held liable for failing to equip firearms with locks and other feasible safety features that could prevent unintentional and unauthorized use, particularly by children. Manufacturers could also supervise and control distribution systems to keep guns out of the hands of convicted criminals, juveniles, and others prohibited from having them. When gun makers instead profit from loading the criminal market, they should be held liable for the consequences.

Plaintiffs are winning significant victories, but these cases are challenging, and not all end favorably. Counsel bringing gun cases must overcome some courts' reluctance to recognize the applicability of established legal principles to facts and circumstances they have not previously encountered.

A recent decision in Smith v. Bryco Arms, Inc., is one of the best precedents for product-design claims. The New Mexico Court of Appeals held that a gun manufacturer and distributor could be liable for an unintentional shooting. (1) The shooting occurred when a teenage boy let two friends handle a pistol after he had removed its ammunition magazine. Unaware that a bullet remained in the firing chamber, one of the boys pulled the trigger, shooting 14-year-old Sean Smith in the mouth and seriously injuring him.

The plaintiffs alleged that the shooting could have been prevented by a simple design feature such as a magazine-out safety device, which prevents a gun from firing when its magazine has been removed. Likewise, a chamber-load indicator could have alerted the boys that a bullet remained.

The trial court granted summary judgment to the defendants, but the appeals panel reversed that ruling, saying that the case involved "straightforward assertions that the handgun could have--and therefore should have--incorporated long-known design features which would have helped prevent this shooting and others like it." (2) The court based its decision on evidence that the gun industry had been aware of these safety features for decades and that adding them would have increased manufacturing costs by only about 30 cents per gun.

Recognizing that manufacturers and distributors may be responsible under strict liability or negligence law for failing to include safety devices, the panel concluded, "We do not perceive anything so unique about handguns that they cannot or should not be subject to normal tort law concepts." (3)

A Florida court reached similar conclusions in Grunow v. Valor Corp. of Florida. A Palm Beach County trial judge refused to dismiss strict liability and negligence claims against the distributor of a Raven .25-caliber pistol that a 13-year-old student used to kill a teacher. (4)

The Raven .25, manufactured by a company that is no longer in business, is the kind of inexpensive low-quality handgun commonly called a Saturday night special, and it is among the most frequently traced and recovered firearms used in crimes. The plaintiff claimed that the pistol was unreasonably dangerous and that it lacked a locking system and other safety features that could have prevented its unauthorized use. In addition to the distributor, the gun owner and the pawnshop that sold the gun were defendants. Both settled the claims against them.

Grunow illustrates tort law's recognition that more than one party can contribute to an injury and that each should be held accountable for its role in that injury. The student's actions were obviously a cause of the teacher's death. But just as a driver's recklessness does not excuse automakers from liability for unsafe cars, a person's misuse of a gun does not relieve the gun maker, seller, and owner of responsibility for their actions.

Unsafe distribution and design

A report on illegal gun trafficking released last year by the U.S. Department of Justice supports the premise that gun companies can make the distribution and sale of their products safer. Contrary to manufacturers' insistence that they cannot do anything to prevent criminals and juveniles from obtaining firearms, the report describes how the gun industry can "make a significant contribution to public safety by adopting measures to police its own distribution chain." (5)

That view is consistent with many courts' conclusions in lawsuits against gun makers. For example, in Ceriale v. Smith & Wesson Corp., an Illinois trial court has repeatedly denied gun manufacturers' motions to dismiss a public nuisance action brought by families of people injured or killed by handgun violence. (6)

Another suit brought in the same court, Anderson v. Bryco Arms, Inc., presents particularly compelling facts about gun makers' failure to ensure safe distribution of their products. (7) A dealer in Pekin, Illinois, sold dozens of Bryco .380- and 9 mm-caliber handguns to a customer who was reselling guns illegally through classified advertisements in a local newspaper. The dealer violated state and federal laws requiring background checks and waiting periods before completing sales to a customer. He had even helped the customer structure the transactions to avoid federal requirements regarding reports of multiple gun sales, which would have alerted law enforcement authorities to the customer's illegal trafficking.

The customer sold one of the pistols to Benjamin Smith, a violent white supremacist who had been unable to obtain a gun legally. A few days later, Smith went on a racially motivated shooting spree in Illinois and Indiana, killing two people and seriously wounding nine others.

Both the dealer and the unlicensed trafficker pleaded guilty to violating federal gun laws. The plaintiffs claim that the manufacturer enabled the shootings to occur by supplying guns to a dealer without exercising any of the means within its control to monitor the dealer's actions.

Another recently filed case, Jefferson v. Amadeo Rossi, illustrates how a shooting can lead to claims regarding gun design and distribution. (8) Seven-year-old Nafis Jefferson died after being shot by another child who had found a loaded .44-caliber revolver under an abandoned car.

Amadeo Rossi, the Brazil-based manufacturer, did not equip the gun with any safety features that could have prevented its being fired by someone without the authority to use it. Another manufacturer named as a defendant--a company that acquired the Amadeo Rossi product line after this revolver had been manufactured-installs such a feature, but it did not recall or offer to retrofit Amadeo Rossi guns made without it.

The plaintiffs claim that the revolver was also negligently distributed through a gun dealer who sold it to an illegal gun trafficker. Many guns used to commit crimes have been traced to this trafficker, who has served time in federal prison for illegal gun dealing and possession. Jefferson seeks damages for injuries caused by the revolver's defective design and reckless distribution.

Suits by government entities

While lawsuits brought by private individuals remain key in gun litigation, lawsuits brought by government entities also pressure the industry to reform. Motions to dismiss have been the initial critical hurdle in these cases. Six cases have survived such motions, (9) and the manufacturers chose not to file a motion in a seventh case. (10)

Of those cases, one brought by Wayne County, Michigan, and the City of Detroit is on interlocutory appeal. Others have moved on to discovery. Two lawsuits--one filed by the City of Boston and the other a consolidated case brought by 12 California cities and counties--are scheduled for trial in 2002.

Courts have granted motions to dismiss in nine cases filed by local governments. Their reasons vary, with some courts relying on narrow grounds unique to the plaintiffs' status as government entities (11) and others reaching further to grounds that could apply to private individuals' suits as well. (12)

Only one of the cases has been decided by a state high court, and that ruling was based entirely on state legislation enacted to give special immunity to the gun industry. (13) The remaining eight cases are at various stages of appeal. Four additional cases are waiting for rulings on motions to dismiss. (14)

Government lawsuits hold tremendous promise, both for obtaining significant relief and for developing precedent regarding gun manufacturers' legal duties and liability.

Decisions for defendants

In several other recent decisions, courts declined to find a gun manufacturer liable based on a particular claim or set of evidence. They did not rule out the possibility of liability under other legal theories in future cases with other facts.

In Merrill v. Navegar, Inc., the California Supreme Court ruled against plaintiffs who sued the manufacturer of TEC-9 military-style assault pistols that had been used in a mass shooting. (15) The decision reversed an appellate opinion that recognized that a manufacturer may be held liable where its negligent design, distribution, and marketing is a substantial factor in an intentional, criminal shooting.

Rather than addressing the broader issues of gun manufacturers' legal duties and liability, the high court resolved the case on an extremely narrow ground, concluding that a state statute barred the claim asserted against the manufacturer. The statute, enacted in 1983 and based on model legislation drafted by the National Rifle Association, provides that a gun manufacturer cannot be held liable in a products liability action merely because the risks posed by the product exceed its benefits. (16)

The dissent criticized the majority for stretching the statute to bar a claim that the manufacturer negligently distributed guns to the general public rather than restricting sales to police and military units. The claim was not covered by the letter or the spirit of the statute. Efforts are under way to repeal the statute so California courts can apply state tort law to gun makers just as they would to other manufacturers.

Merrill's narrow scope should limit its effect on other cases. It does not foreclose claims that a gun manufacturer or seller is liable under California law for failure to equip guns with safety devices or other, safer design features; failure to warn; negligence per se; negligent entrustment; negligent advertising; or negligent distribution that enables convicted criminals, juveniles, and other prohibited purchasers to obtain guns.

Indeed, the only member of the California Supreme Court who actually addressed the application of state negligence law to the claims rejected every one of the gun manufacturer's arguments for escaping liability. Although the majority decided the case entirely on the statute's effect and did not reach the negligence issues, the dissenting justice, Kathryn Werdegar, wrote a detailed analysis of the relevant legal precedents and policy considerations.

She concluded that manufacturers and distributors of assault weapons owe the public a duty of care in their design, distribution, and marketing activities. None of the other panel members contradicted this analysis. It is likely to have far greater significance than the majority's narrow statutory ruling in shaping judicial consideration of these issues.

Several months earlier, the New York Court of Appeals ruled for gun manufacturers in the closely watched case Hamilton v. Beretta U.S.A. Corp. (17) The court's decision narrowly addressed only the evidence presented at trial and expressly left open the possibility that gun makers could be held liable for negligent distribution under New York law on other facts in future cases.

The federal jury in Hamilton returned a verdict in favor of Stephen Fox, who had been shot with a .25-caliber handgun. Fox could not prove who manufactured the gun because it was not recovered. The shooter could not recall the make or model or how he obtained it. The jury decided that 15 of the 25 manufacturer defendants were negligent and that 3 proximately caused Fox's injuries, and the court apportioned damages among those three defendants according to their share of the national market for .25-caliber handguns.

The two questions the federal appellate court certified to the New York Court of Appeals were: Do defendants owe a duty to exercise reasonable care in distributing guns? May liability be apportioned on a market-share basis?

The New York Court of Appeals decision addressed only negligence claims and expressed no views about gun manufacturer liability on any other cause of action. As to negligence, the court concluded that the plaintiff did not present sufficient evidence to justify imposing a duty on defendants. It emphasized that its analysis and conclusions were based on specific evidence presented at trial, concluding that "whether, in a different case, a duty may arise remains a question for the future." (18) The court suggested that a stronger case could be made by showing that a manufacturer sold guns through particular dealers that it knew or had reason to know were disproportionate sources of guns for the illegal market. (19)

The court focused heavily on causation issues, even within its analysis of the duty element of the negligence claims. Because he had not been able to identify who manufactured the gun with which he was shot, Fox could not prove that it was negligently distributed. While sending a clear message that claims will be much stronger if manufacturers can be identified, the decision did not rule out recovery in cases where identification is impossible.

The court concluded that the evidence in Hamilton did not show the compelling circumstances necessary for imposing market-share liability. However, the panel suggested that the biggest problem with applying that concept in Hamilton was that the plaintiffs did not seek to apportion liability in the right way. The allocation was based on national sales data, which the court thought was not a sensible way to allocate liability. It said that not all gun sales pose the same degree of risk of criminal use.

That reasoning suggests that allocation should be based on data with a closer correlation to the risk of criminal use of guns, such as data about the number of each manufacturer's guns recovered by police in crimes in the relevant city or state.

In Halliday v. Sturm, Ruger & Co., the Maryland Court of Special Appeals affirmed dismissal of strict liability claims arising from the death of a three-year-old boy who found a pistol under a mattress, inserted an ammunition magazine into it, and shot himself in the head. (20)

The court concluded that its decision was controlled by Maryland precedent rejecting the notion that a gun can be defective merely because it is dangerous and its risks outweigh its social utility. (21) The court ignored the fact that Halliday involved a different kind of claim, one based on the gun's lack of safety features that could have prevented its use by a child.

The court also ruled that, as a matter of law, the manufacturer could not foresee that any person would store the pistol in an unsafe manner, contrary to warnings in the firearm's instruction manual. That conclusion ignores reality: A substantial percentage of gun owners store guns in exactly that manner, and gun manufacturers are well aware of this. (22)

The dissenting judges recognized that the majority's opinion essentially creates a "gun exception" to the principles of strict products liability law that apply to all other products in Maryland. They said that the exception improperly "freezes the technological advancements of handgun safety devices" and illogically "assigns the least liability to the manufacturers of the most dangerous products." (23)

The Maryland Court of Appeals will review the decision. If it is not overturned, the decision will establish an aberrational rule of law in Maryland that bars plaintiffs from suing gun manufacturers for failure to incorporate a feasible safety device, though such a claim would be viable against a manufacturer of any other product.

Threat to plaintiffs' rights

As litigation puts increasing pressure on gun manufacturers and sellers, the gun industry and the gun lobby have looked to legislatures for special protection from legal liability. In the 1980s and early 1990s, several states passed laws that preclude certain types of products liability actions against gun makers, including the California law that led to the adverse decision in Merrill.

More laws have been passed since cities began to sue gun makers in 1998. The statutes include one signed into law in Texas in 1999 by then-Gov. George W. Bush. (24) About 30 states now have laws that give gun manufacturers some form of special insulation from suits.

These immunity provisions vary greatly in scope, with the narrowest limiting only suits brought by local governments and the broadest affecting all plaintiffs, including individual shooting victims and their families. For example, a Colorado law impedes claims brought on behalf of injured individuals such as those in the Columbine High School shooting. (25)

Litigation over the constitutionality of these statutes, particularly their retroactive application to causes of action that accrued before the statutes were enacted, have produced both favorable and unfavorable decisions for plaintiffs. (26) These immunity laws, particularly those that restrict claims by individuals and not just local governments, pose a significant threat to plaintiffs' right to hold gun makers and sellers accountable for the consequences of their actions.

An even more serious legislative threat looms at the federal level, where two bills have been introduced in the U.S. House of Representatives that would give the gun industry broad, nationwide immunity from suit. (27)

Fighting any efforts to enact these special immunities will be a high priority of all those who support the continuing use of plaintiffs' legal rights to force the gun industry to reform.

Notes

(1.) No. 20,389 (N.M. Ct. App. July 27, 2001).

(2.) Id. at 9.

(3.) Id. at 7.

(4.) No. CL 00-9657 AB (Fla., Palm Beach County Cir. Ct. Mar. 12, 2001).

(5.) U.S. DEP'T OF JUSTICE, GUN VIOLENCE REDUCTION: NATIONAL INTEGRATED FIREARMS VIOLENCE REDUCTION STRATEGY [section] IV (2000).

(6.) No. 99L5628 (Ill., Cook County Cir. Ct. Nov. 30, 1999, May 11, 2000, and Feb. 14, 2001) (on interlocutory appeal).

(7.) See Plaintiffs' Complaint, No. 00 L-007476 (Ill., Cook County Cir. Ct. June 29, 2000).

(8.) See Plaintiff's Complaint, No. 002218 (Pa., Philadelphia County Ct. Com. Pl. Apr. 18, 2001).

(9.) See White v. Smith & Wesson Corp., 97 F. Supp. 2d 816 (N.D. Ohio 2000); People v. Arcadia Mach. & Tool, Inc., Judicial Council Coordination Proceeding No. 4095 (Cal., San Diego Super. Ct. Oct. 4, 2000); Sills v. Smith & Wesson Corp., No. 99C-09283-FSS, 2000 WL 33113806 (Del., Super. Ct. Dec. 1, 2000); Smith & Wesson Corp. v. City of Atlanta, 543 S.E.2d 16 (Ga. 2001); City of Boston v. Smith & Wesson Corp., No. 199902590, 2000 WL 1473568 (Mass., Super. Ct. July 13, 2000); Archer v. Arms Tech., Inc., Nos. 99-912658, 99-912662 (Mich., Wayne County Cir. Ct. May 16, 2000).

(10.) See City of New York v. Arms Tech., Inc., Plaintiff's Complaint, No. 1:00-CV-3641 (E.D.N.Y. June 20, 2000).

(11.) See Camden County Bd. of Chosen Freeholders v. Beretta U.S.A. Corp., 123 F. Supp. 2d 245 (D. N.J, 2000); City of Chicago v. Beretta U.S.A. Corp., No. 98 CH 15596 (Ill., Cook County Cir. Ct. Sept. 15, 2000); Ganim v. Smith & Wesson Corp., No. CV990153198S, 1999 WL 1241909 (Conn., Waterbury Jud. Dist. Super. Ct. Dec. 10, 1999).

(12.) See City of Cincinnati v. Beretta U.S.A., No. A9902369, 1999 WL 809838 (Ohio, Hamilton County Ct. Com. Pl. Oct. 7, 1999), aff'd, 2000 WL 1133078 (Ohio Ct. App. Aug. 11, 2000), leave to appeal granted, 740 N.E.2d 1111 (Ohio Jan. 17, 2001); City of Gary v. Smith & Wesson Corp., No. 45D05-005-CT-243 (Ind. Super. Ct. Jan. 11, 2001); City of Philadelphia v. Beretta U.S.A. Corp., 126 F. Supp. 2d 882 (E.D. Pa. 2000); New York v. Sturm, Ruger & Co., No. 402586/00 (N.Y., New York County Sup. Ct. Aug. 19, 2001); Penelas v. Arms Tech., No. 99-1941 CA-06, 1999 WL 1204353 (Fla., Dade County Cir. Ct. Dec. 13, 1999), aff'd, 778 So.2d 1042 (Fla. Ct. App. 2001).

(13.) See Morial v. Smith & Wesson Corp., 785 So. 2d 1 (La. 2001) (affirming dismissal of case brought by City of New Orleans because of special law enacted to give gun makers immunity from suit in Louisiana).

(14.) City of Camden v. Beretta U.S.A. Corp., Plaintiffs Complaint, No. L-4510-99 (N.J., Camden County Super. Ct. Law Div. June 21, 1999); City of St. Louis v. Cernicek, Plaintiff's Complaint, No. 992-01209 (Mo., City of St. Louis Cir. Ct. Apr. 30, 1999); District of Columbia v. Beretta U.S.A. Corp., Plaintiff's Complaint, No. 00-428 (D.C. Super. Ct. Jan. 20, 2000); James v. Arcadia Mach. & Tools, Inc., Plaintiffs' Complaint, No. L-6059-99 (N.J., Essex County Super. Ct. Law Div. June 9, 1999).

(15.) 110 Cal. Rptr. 2d 370 (2001), rev'g 89 Cal. Rptr. 2d 146 (Ct. App. 1999).

(16.) CAL. CIV. CODE [section] 1714.4 (2001).

(17.) 96 N.Y.2d 222 (2001).

(18.) Id. at 242.

(19.) Id. at 237-38.

(20.) 770 A.2d 1072 (Md. Ct. Spec. App. 2001).

(21.) Kelley v. R.G. Indus., Inc., 497 A.2d 1143 (Md. 1985).

(22.) See, e.g., Mark Schuster et al., Firearm Storage Patterns in U.S. Homes with Children, 90 AM. J. PUB. HEALTH 588, 591-92 (2000).

(23.) 770 A.2d 1072, 1095, 1096 (Sonner, J., dissenting).

(24.) TEX. CIV. PRAC. & REM. CODE ANN. [section] 128.001 (2000).

(25.) COLO. REV. STAT. [sections] 13-21-504.5 (2000).

(26.) Compare Archer, Nos. 99-912658, 99-912662 (holding that retroactive application of Michigan law would violate due process and separation of powers principles), and City of Atlanta, 543 S.E.2d 16, (declining to apply Georgia law retroactively to bar city's suit filed before law's enactment), with Philadelphia, 126 F. Supp. 2d 882, 890-94 (upholding constitutionality of Pennsylvania law) and Morial, 785 So. 2d 1 (upholding constitutionality of Louisiana law).

(27.) H.R. 2037 and H.R. 123, 107th Cong. (2001).

For further reading

Jonathan E. Lowy, Litigating Against Gun Manufacturers, TRIAL, Nov. 2000, at 42.

Allen Rostron is a staff attorney for the Legal Action Project at the Brady Center to Prevent Gun Violence in Washington, D.C.