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Cities Duel With Gunmakers Over Liability.

Firing back at the urban plague of gun violence, cities across the country are preparing lawsuits seeking to hold handgun manufacturers responsible for the multibillion-dollar costs of violent crimes.

The wave of gun litigation hopes to achieve what has largely eluded regulators and law enforcement agencies: reducing the toll of gun violence that has terrorized cities by imposing tighter limits on firearm sales.

Emboldened by the success of anti-tobacco lawsuits, local elected officials are hoping to hit handgun manufacturers with so many suits in so many places that the gun industry will be forced to pay huge dollar settlements and accept tough new regulations on the sale of their products.

Relying on new evidence and legal theories, the suits are advancing a claim that has been rejected in past gun cases: that firearms makers have a legal duty to curb the violence caused by their products, even if that means supervising their dealers and giving up sales.

October, the cities of New Orleans and Chicago both brought groundbreaking lawsuits against gun manufacturers, although each city had a different basis for its claims.

The City of New Orleans lawsuit accuses the gun manufacturers of selling "unreasonably dangerous" weapons because they did not incorporate enough safety devices. In its suit, New Orleans asserts that handgun manufacturers have known that guns are unsafe, have failed to voluntarily make them safer, and have lobbied against mandatory safety measures - such as removable trigger locks or electronic safety devices that allow a weapon to fire only if the owner is wearing a special key or bracelet. Industry officials maintain that smart-gun technology has not been perfected and could hamper use of firearms for self-defense.

The New Orleans suit names 15 major handgun manufacturers, three industry trade associations and several local gun dealers as defendants. Without specifying an amount, the suit seeks damages to cover the city's costs for "police protection, emergency services, medical care, facilities and services, as well as lost tax revenues due to defendants products and actions."

The City of Chicago's suit alleges that gun shops, manufacturers and distributors are creating a "public nuisance" by using marketing and distribution methods designed to circumvent the city's highly restrictive gun laws, which forbids handgun sales. The gun makers "knowingly oversupply" gun shops just outside the city's boundaries with the intention that many of those weapons will be sold to city residents, according to the suit.

The Chicago lawsuit argues, in effect, that handgun manufacturers have knowingly profited from crime and fear of crime. Chicago has asked for $433 million in city costs related to gun violence over the past five years and names 16 gun stores and 22 manufacturers as defendants. Gun industry lawyers have argued that illegal trafficking should be combated by law enforcement and that manufacturers who legally make and sell firearms have no legal duty to control who gets them.

In late December, Bridgeport, Conn. Mayor Joseph Ganim sent 14 gun manufacturers a letter offering them what he called "one last chance" before the city files a lawsuit seeking mandatory safety devices for handguns. In his letter, Mayor Ganim said he plans to file a product liability suit similar to New Orleans that will seek $100 million in damages to the city to compensate for expenses caused by the proliferation of unsafe guns.

Philadelphia Mayor Edward G. Rendell has proposed a simultaneous filing by as many as 100 dries on the same day sometime this year. Atlanta, Boston, St. Louis, Seattle, Gary, Ind., San Francisco, and Miami have announced they are putting together legal teams to develop complaints. For the moment, there is no incentive by cities to agree on a unified legal strategy. Each city seems to be tailoring a legal theory to its local circumstances and its state laws

Some Parallels to Tobacco Fight

Guns and tobacco share an important parallel: a history of protection from federal safety regulation. Both industries have been exempted from the jurisdiction of the Consumer Product Safety Commission when Congress created the agency in the early 1970s. This immunity is often cited as a reason that foes of each industry resort to the courts for reforms.

Gun manufacturers, like cigarette makers, have also successfully defended themselves against numerous lawsuits brought by individuals. When one person has sued, whether it's on tobacco or guns, the industries have scored points by attacking that person and claiming the harm was all their fault," said Dennis Henigan, director of the legal action project at the Center to Prevent Handgun Violence.

Just as the involvement of State Attorneys General changed the balance of power in the tobacco litigation, so too is the cities' involvement likely to add muscle and credibility to the gun litigation. Currently, there are no plans by the State Attorneys General to bring any state-wide legal actions against the gun industry.

Differences: Tobacco and Gun Fights

Cities should take note that there are important differences between the gun and tobacco battles. While claims that smokers assumed the risk have always served cigarette makers as a potent legal weapon, gun makers could not use that defense against victims of gun crime. While incriminating internal documents left Big Tobacco wide open to cover-up claims, gun manufacturers cannot be accused of concealing the risks of their products. Guns that kill are effective products that function as designed.

Judges and juries routinely concluded that smokers had freely chosen to light up and so tobacco companies could not be held liable for the health consequences of that choice. Similarly, gun manufacturers successfully argued that it was not their fault when someone chose to commit a crime and fired a gun at someone else illegally. There is no chemical addiction when it comes to guns. And there is no secret that guns are dangerous. Courts have repeatedly rejected claims that guns are somehow defective when they fire bullets.

"When the dust clears, you're going to find that these cases don't go anywhere," remarked Stephen L. Sanetti, general counsel of Sturm Ruger. "It's been uniformly held all across the country that a person doesn't have the right to recover from the manufacturer" [of a firearm] just because a criminal misused it."

A key difference for dries is that gun suits will not bring a huge payday like the nearly

$206 billion that tobacco companies will pay to States to settle lawsuits by State Attorneys General. Compared with tobacco industry's resources, most gun makers have considerably smaller annual sales of a few million dollars at most. The giants of the trade, Sturm, Ruger & Co. and Smith & Wesson, each sell about $140 million worth of firearms per year - the equivalent of less than two days of cigarette sales by Philip Morris or five days for R.J. Reynolds.

While contending that the suits are groundless, industry officials acknowledge that some of their members may be unable to withstand a costly legal siege. "I don't think ... this industry has the financial staying power to fight 60 or 70 lawsuits," said Bob Ricker, director of government affairs for the American Shooting Sports Council, an industry trade group.
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Author:Otero, Juan
Publication:Nation's Cities Weekly
Date:Jan 18, 1999
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