Suing Gun Manufacturers: Hazardous to Our Health

Studies | Crime | Government | Regulations

No. 223
Monday, March 01, 1999
by H. Sterling Burnett


Notes

  1. Jack Adkins, W. W. Caruth III, Morgan Reynolds, John Lott, Richard Feldman, Bill Parkerson, Dorman Cordell, John Goodman, Merrill Matthews, Fred Crombie and Krishonne Chester all contributed to the successful completion of this study by providing the author with information and data sources, carefully reviewing and commenting on it and creating the graphics contained in it. I thank each of them for their help, apologize to anyone who provided help but whom I have forgotten to name and absolve all but the author for any remaining errors.
  2. Mayor Rendell first mentioned the possibility of such a suit in 1997, but he did not propose it until 1998. The mayors' threats have been reported by, among others, Matt Bai, "Targeting Gun Makers," Newsweek, April 13, 1998, p. 37; Pam Belluck, "Weary of Gun Violence, Chicago Considers Suit," New York Times, June 12, 1998; John Lott, "Keep Guns Out of Lawyers' Hands," Wall Street Journal, June 23, 1998; and Mark Cohen, "Half-Cocked," Philadelphia magazine, June 1998, pp. 29-40.
  3. On October 30, 1998, New Orleans Mayor Morial beat both Rendell and Daley to the punch by filing suit against gun manufacturers (see Appendix I for a discussion of the New Orleans lawsuit). Daley subsequently had Chicago's city attorneys file suit on November 12, 1998. See, for example, Paul M. Barrett, "Chicago Sues Gun Makers in the Battle's Second Shot," Wall Street Journal, November 11, 1998; John Jeter, "Chicago Files Suit against Gun Makers, Dealers," Washington Post, November 13, 1998; and Gary Washburn and Abdon Pallasch, "City Takes on Gun Industry," Chicago Tribune, November 13, 1998. On January 27, 1999, two more municipalities filed suits. Bridgeport, Conn., sued the firearms industry, claiming that guns are responsible for "urban decay" in minority neighborhoods, and the mayor of Miami/Dade County, Fla., followed New Orleans' strategy of attempting to force gun makers to make childproof guns. See "Connecticut Suit to Blame Gunmakers for Decay in Minority Areas," Dallas Morning News, January 27, 1999, and "Dade Sues Gunmakers for Kids' Sake," Miami Herald, January 27, 1999.
  4. Tim Cochran, executive director of the 500-member U.S. Conference of Mayors, which includes the mayors from all U.S. cities of more than 30,000 people, indicated that approximately 70 percent of his members would file suit against the gun industry in the near future. See Gary Fields, "Cities Plan to Go after Gun Industry in Court," USA Today, December 15, 1998. On January 6, 1999, Atlanta Mayor Bill Campbell announced his intention to file suit against gun manufacturers. See Maria Saporta, "Mayor Sues as Gun Industry Comes to Atlanta," Atlanta Journal-Constitution, January 7, 1999.
  5. Paul M. Barrett, "Aiming High, a Lawyer Goes after Gun Manufacturers; Has She Got a Shot?" Wall Street Journal, September 17, 1998. The verdict is discussed in Appendix II.
  6. Michael Bologna, "Suit Seeks to Hold Gun Makers Responsible for Gang Violence," BNA Product Safety & Liability Reporter, July, 3, 1998, pp. 615-16.
  7. This was the lowest rate since the National Center for Health Statistics began keeping records and according to the National Safety Council, at 0.5 fatalities per 100,000 population, is well below the rates of death due to motor vehicle accidents (16.3), falls (5.3), poisonings (3.7), drownings (1.5), fires (1.2) and suffocation by ingested object (1.1). The number of accidental firearm deaths is less than half what it was in 1930, even though the U.S. population has doubled and the number of firearms owned has more than quadrupled. These data can be found on the internet at www.nra.org/research/1998_nra_fact_card.htm.
  8. Bureau of the Census, Statistical Abstract of the United States, 1997, p. 103.
  9. Surveys conducted by the U.S. Fish and Wildlife Service, the International Association of Fish and Wildlife Agencies and the National Shooting Sports Foundation have found that recreational shooting sports generate more than $30.9 billion in annual economic activity. Indeed, 99 percent of firearms use is neither to prevent nor commit crimes but for sport and recreation. See Sporting Arms and Ammunition Manufacturers Institute, Inc., Market Size and Economic Impact of the Sporting Firearms and Ammunition Industry in America (1998 Revised Edition), SAAMI Background Paper #2.
  10. To the extent that the public bears the costs of accidental firearm injuries and deaths, an argument could be made for including these in any cost calculation in the public lawsuits. However, there is no good reason for believing that absent guns, the U.S. suicide rate would decline. Gun ownership rates bear no relation to suicide rates either nationally or internationally. Nationally, suicide rates are highest in urban areas while household gun ownership is highest in rural areas. Internationally, some countries with higher gun ownership rates than the U.S. have lower suicide rates (e.g., Israel has greater gun availability but only 7.3 suicides per 100,000 population compared to a U.S. rate of 11.5). And many countries with very strict gun laws and very low gun ownership rates have much higher suicide rates than the U.S. (e.g., Luxembourg = 15.1, Denmark = 22, Germany = 15.8, and Japan - with almost no private firearm ownership = 14.3 per 100,000 population). The only reasonable conclusion to draw from the evidence is that people intent on committing suicide will use the most effective means available, whether guns, automobile exhaust (1996, 2,000 suicides using gas or vapor), rope (1996, 4,700 suicides by hanging), or drugs (1996, 3,000 intentional drug overdose deaths). Removing guns from the U.S. would be unlikely to significantly reduce the number of suicides and the related costs, so there is no reason for including gun suicides as a cost of gun violence. See Don B. Kates, "Gun Laws around the World: Do They Work?" The American Guardian, October 1997, pp. 48-49, 60-62.
  11. The BATF does not routinely track all handgun sales. Usually it undertakes gun traces or searches only for individual guns seized or discovered by police in connection with a crime. For example, if a gun was seized in a raid of a "drug house," the police might want to know if the firearm had been used in previous crimes and how it reached the drug house. They would send a ballistic sample (a bullet fired from the gun into ballistic gelatin) and, if available, the gun's identification numbers to the BATF. The BATF would then check computers for a ballistics match and call gun dealers, asking them to check their records to see if they had sold the gun. This is called a firearms trace. In Philadelphia, however, the BATF did not act on a request to trace a particular gun, but instead contacted gun dealers and manufacturers to determine how many handguns they sold in Philadelphia and to whom.
  12. For an excellent discussion of the limited usefulness of BATF gun-tracing data, see Paul Blackman, "The Uses and Limitations of BATF Tracing Data for Law Enforcement, Policymaking, and Criminological Research," Journal of Firearms and Public Policy, Fall 1998. Among the limitations Blackman discusses are the minimal number of guns the BATF attempts to trace or succeeds in tracing, the rules for excluding guns and efforts to trace them, and the limited information gun traces provide. The BATF notes that it does not attempt to trace guns if it is unlikely to succeed, and the trace information "ONLY reflects trends relating to those firearms for which a trace request is submitted [not guns used in crime overall] and is only as accurate as the information provided by trace requesters."
  13. Kairys and the state police reached this conclusion even though gun control advocates have pushed for "one gun a month" sales laws, arguing that no one could legitimately need to buy more. By this standard, the average of nine guns purchased by the 700 individuals in question in Philadelphia would not seem excessive. In addition, it seems curious that Philadelphia is considering suing gun manufacturers for the possible malfeasance or criminality of the 700. If retailers are selling firearms illegally, they and their purchasers should be arrested or sued.
  14. 1997 Chicago Police Department Annual Report, January 1, 1998.
  15. Illinois Criminal Justice Information Authority, "On Good Authority, Trends in Illinois Crime 1993-1997," available on the University of Illinois, Chicago website
  16. As discussed in a later section of this study, each of these characteristics also appeals to law-abiding gun buyers, especially those who are applying for or have received concealed carry permits.
  17. Firearms manufacturer Accu-Tek was the lead defendant in the Hamilton case.
  18. In addition to 25 gun manufacturers, Hamilton named 20 distributors or wholesalers and three trade associations as defendants. Judge Jack Weinstein dismissed the case against the trade associations and the wholesalers in mid-trial on the grounds that since no data had been presented concerning distributors' relative market shares, blame could not be fairly apportioned.
  19. Barrett, "Aiming High, a Lawyer Goes after Gun Manufacturers; Has She Got a Shot?" In ruling against dismissal, Judge Weinstein ignored the fact that far fewer than 1 percent of the guns in private hands are used in crimes each year. See Morgan O. Reynolds and W. W. Caruth III, "Myths about Gun Control," NCPA Policy Report No. 176, December 1992, National Center for Policy Analysis, pp. iii, 3-5; and Gary Kleck, Targeting Guns: Firearms and Their Control (Hawthorne, N.Y.: Aldine de Gruyter, 1997), p. 92.
  20. Bologna, "Suit Seeks to Hold Gun Makers Responsible for Gang Violence."
  21. Ibid.
  22. For crimes in which guns are used, see Kathleen Maguire and Ann L. Pastore, eds., Sourcebook of Criminal Justice Statistics, 1997, U.S. Bureau of Justice Statistics. See also Michael R. Rand, Criminal Victimization, 1997, U.S. Bureau of Justice Statistics National Crime Victimization Survey, December 1998. A second way to calculate the number of firearm crimes from the 1997 NCVS is to multiply 28.7 percent - the percentage of crimes of serious violence committed with firearms according to the BJS - by the NCVS's 3,138,000 attempted and completed rapes and sexual assaults, aggravated assaults and robberies. To complete the firearm crime calculation one then adds in the number of firearm murders from the BJS Sourcebook. There is a slight discrepancy between these two calculations. In this study, the author erred on the side of caution and used the higher firearm crime derivation in his calculations.
  23. All of these studies are cited in Kleck, Targeting Guns: Firearms and Their Control, pp. 150, 187-89.
  24. Ibid., p. 151.
  25. Ibid., p. 188.
  26. Michael R. Rand, Guns and Crime: Handgun Victimization, Firearm Self-Defense, and Firearm Theft, Bureau of Justice Statistics Crime Data Brief, April 1994.
  27. James D. Wright and Peter H. Rossi, Armed and Considered Dangerous: A Survey of Felons and Their Firearms (Hawthorne, N.Y.: Aldine de Gruyter, 1986).
  28. Using FBI/Supplementary Homicide reports and other data, Kleck calculated there are between 1,400 and 3,200 legal civilian defensive homicides each year. This contrasts with the 578 justifiable homicides (by police and civilians) reported in the U.S. Department of Justice, Crime in the U.S. 1997, p. 24. Among the reasons the U.S. Department of Justice count is low: not all states or law enforcement jurisdictions report justifiable homicide data to the FBI, and most defensive gun uses which result in death are never adjudicated. Rather they are "no billed" or ruled "excusable" by the grand jury, and excusable homicides are not recorded by the FBI. See Gary Kleck, Point Blank: Guns and Violence in America, (Hawthorne, N.Y.: Aldine de Gruyter, 1991), pp. 111-17. The only other independent source of data on self-defense killings found that between 6.5 percent and 12.1 percent of all civilian killings are ruled justifiable, which coincides with Kleck's finding that between 5.6 percent and 13 percent of civilian killings are legally defensive.

    In addition, civilians kill far more criminals each year than do police but are far less likely to shoot an innocent person. On average, U.S. citizens kill approximately 30 people each year whom they mistake for intruders. By contrast, police kill more than 330 innocent people annually. See John R. Lott Jr., More Guns, Less Crime (Chicago: University of Chicago Press, 1998).
  29. Philadelphia Daily News, October 10, 1997.
  30. Woodland Hills (Calif.) Daily News, April 24, 1998.
  31. Houston Chronicle, October 14, 1997.
  32. Reynolds and Caruth, "Myths about Gun Control," p. 10; and Kleck, Targeting Guns: Firearms and Their Control, p. 163. Kleck reports that the number of defensive woundings each year could actually range up to 200,000, based on surveys which indicate that 8 percent of the more than 2.5 million defensive gun users reported wounding the criminal. This figure could be high since it is not clear how the defender "knew" he wounded the would-be assailant, and it is higher than the percentage of woundings reported by police officers who had fired their guns defensively. However, it could also be accurate. There are approximately 150,000 gun woundings each year, many of them criminals shooting other criminals, and surveys of criminals and evidence from courts show that those wounded while committing crimes often go untreated by medical professionals - especially when the wounds are minor - or get treatment from medical professionals who do not report the wounds.
  33. Salem Evening News, June 30, 1998.
  34. Orlando Sentinel Tribune, May 16, 1998.
  35. Lott, More Guns, Less Crime, p. 3.
  36. Chieftain, Pueblo, Colo., July, 14, 1998.
  37. Daily Star, Hammond, La., December, 6, 1997.
  38. See Jeffrey R. Snyder, "A Nation of Cowards," The Public Interest, 1993.
  39. Rand, Guns and Crime: Handgun Victimization, Firearm Self-Defense, and Firearm Theft.
  40. Kleck, Targeting Guns: Firearms and Their Control, p. 190. Guns are used defensively most often in and around the home to prevent assault and burglary. In countries with lower gun ownership rates, such as Great Britain, Canada and the Netherlands, almost half (43 percent, 44 percent and 48 percent, respectively) of all burglaries are "hot" (i.e., committed while the homes are occupied), compared to just 9 percent in the U.S. Various studies have shown that U.S. burglars spend more time and effort attempting to ensure that the homes they invade are unoccupied. The main reason for this is fear of confronting an armed homeowner. See, for instance, Lott, More Guns, Less Crime, p. 5; Kleck, Targeting Guns: Firearms and Their Control, pp. 182-84; and George Renger and John Wasilick, Suburban Burglary: A Time and Place for Everything (Springfield, Ill.: Charles Thomas, 1985).
  41. Morgan O. Reynolds, "Crime and Punishment in America: 1998," NCPA Policy Report No. 219, September 1998, National Center for Policy Analysis.
  42. Nine states already had concealed carry laws, making the total number of right-to-carry or shall-issue states 31. In right-to-carry states, once a citizen meets certain objective criteria (e.g., shows proof of having never been convicted of any felony or a misdemeanor domestic assault or judged mentally incompetent and passes tests on firearm safety and firearm laws), the issuing authority must issue a permit. In these states, discretion to issue permits is taken out of the hands of law enforcement officials and politicians.
  43. Lott, More Guns, Less Crime.
  44. Joyce Howard Price, "City Considers Anti-Gun Lawsuit," Washington Times, June 23, 1998.
  45. In 1995, Philadelphia's exemption from the state's right-to-carry concealed carry law was ended, putting Philadelphia residents on the same footing as other Pennsylvanians. In the first year after concealed carry was liberalized, while violent crime as a whole continued to rise, the number of murders fell from 432 to 414. During the same period, the arrest rate for violent crime decreased. It is too early to tell whether the change in the law has affected Philadelphia's crime rate.
  46. Maguire and Pastore, eds., Sourcebook of Criminal Justice Statistics. According to the National Crime Victimization Survey, the estimated number of crimes, as distinguished from those reported to the police, topped 36 million in 1996 and the estimated number of violent crimes was greater than nine million.
  47. Ibid. This figure is 68 percent of a total of 19,645 total murders. Marianne Zawitz, citing the 1993 NCVS, states that 29 percent of the victims of violent crimes reported that they faced an offender with a firearm. This number is likely overstated since it includes instances where the victim assumed but did not see a gun. See Marianne Zawitz, Guns Used in Crime, Bureau of Justice Statistics Selected Findings, July 1995. Kleck, on the other hand, citing Criminal Victimization, 1994, U.S. Bureau of Justice Statistics, states that only 14 percent of all violent crime victims faced offenders with guns. See Gary Kleck and Mark Gertz, "Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun," Journal of Criminal Law and Criminology, Fall 1995.
  48. Marianne W. Zawitz, Firearm Injury from Crime, Bureau of Justice Statistics Selected Findings, U.S. Department of Justice, 1996.
  49. Bureau of Justice Statistics, "Violence-Related Injuries Treated in Hospital Emergency Departments," August 1997.
  50. Patsy A. Klaus, The Cost of Crime to Victims: Crime Data Brief, Bureau of Justice Statistics, 1994. Klaus's estimate includes only the direct cost to victims of crime (including medical expenses and lost work time). She estimated that crimes of violence (excluding murder) cost society approximately $1.4 billion per year. Her figure is undoubtedly low since it does not include costs related to murder and the medical costs include only the out-of-pocket expenses; medical costs covered by insurance or picked up by the public were not accounted for.
  51. Ted R. Miller, Mark A. Cohen and Brian Wiersema, The Extent and Costs of Crime Victimization: A New Look, 1996, National Institute of Justice, January 1996.
  52. Economists debate the merits of categories such as "pain and suffering" and "quality of life." While Klaus undoubtedly undercounts the cost of crime, Miller, Cohen and Weirsema's estimates may be too high; the truth is likely somewhere in between. The key to comparing the costs of firearm violence with the benefits of defensive gun use (DGU) is to use the same cost/savings estimate for the average cost per crime when figuring the average benefit from a crime prevented; there is no good reason for assuming that crimes prevented would have been less expensive than crimes committed. Indeed, there is at least one reason for assuming that the savings for the average crime prevented due to DGU is higher. Crimes prevented would have been by definition violent crimes since they involved a face-to-face confrontation between the person targeted as a victim and the attempted victimizer, and as a rule violent crimes are more expensive than nonviolent property crimes (at least when intangibles such as the cost of pain and suffering and victimization are included).
  53. Seventy-three percent of those with health insurance have coverage through their employers - the point being that criminals and former criminals are far less likely to be gainfully employed and thus have employer-provided health insurance than is the general population.
  54. Zawitz, Firearm Injury from Crime, p. 5.
  55. Richard C. Lumb and Paul C. Friday, City of Charlotte Gunshot Study, 1994, Department of Criminal Justice, University of North Carolina, cited in Kleck, Targeting Guns: Firearms and Their Control, p. 3.
  56. Zawitz, Firearm Injury from Crime, p. 5.
  57. Don B. Kates and Gary Kleck, The Great American Gun Debate (San Francisco: Pacific Research Institute for Public Policy, 1997), p. 13.
  58. See Note 25 concerning how firearm crime numbers were determined using the NCVS.
  59. Kleck's "Defensive Gun Use" numbers were first presented in his book Point Blank: Guns and Violence in America, based upon a "National Self-Defense Survey" he and a colleague developed. Point Blank won the Michael Hindelang Award in 1993 from the American Society of Criminology for the best criminology book in the past three years.
  60. Klaus, The Cost of Crime to Victims: Crime Data Brief. In this study, the costs of crime are calculated by multiplying the number of firearm crimes in the 1997 Sourcebook of Criminal Justice Statistics (483,000) by the average cost per crime as presented in the studies cited. The average benefit of defensive gun use is calculated by multiplying the average cost of crime by the number of defensive gun uses as calculated in Kleck (approximately 2.5 million). Many crimes are never reported, and violent crimes like rape, assault and murder often involve higher costs (e.g., medical expenses and lost workdays) than nonviolent crimes like theft, which has a $55 average cost. Thus it is likely that both the benefits of defensive firearm use and the costs of criminal gun misuse are higher, but there is no reason to assume that the cost/benefit ratio of criminal to defensive gun use is significantly different. Many firearm crimes and successful instances of defensive gun use likely are never reported.
  61. Edwin W. Zedlewski, Making Confinement Decisions, National Institute of Justice, 1987.
  62. The figure of $20,360 is derived from two studies of tangible costs - direct costs and indirect productivity losses - to victims of gunshot wounds. Miller, Cohen and Wiersema, The Extent and Costs of Crime Victimization: A New Look, 1996, p. 9, found tangible costs of $18,360 per firearm crime in 1996; multiplied by the 915,000 firearm crimes estimated in the NCVS, this produces total tangible costs of $16.8 billion. More than $13.4 billion of this total is accounted for by 13,000 murders, which cost more than $1.03 million each. A more recent study by Miller and Cohen, "Costs of Gunshot and Cut/Stab Wounds in the United States, with Some Canadian Comparisons," Accident Analysis and Prevention, Vol. 29, No. 3, 1997, pp. 329-41, estimated the tangible costs of gunshot wounds solely caused during the commission of a crime at $20.67 billion in 1992: $16.9 billion for 18,007 fatal shootings at $938,000 each and $3.77 billion for woundings requiring either hospitalization or emergency room treatment. Since the costs of firearm injury alone are higher in the later study, a critic might claim that I am trying to underestimate the cost of firearm violence. The total cost of firearm murders differs due to the substantial decrease in murder since 1992. To answer possible critics, I have used the higher of the two estimates of the average cost per firearm murders when calculating the total cost of firearm crime. However, the $3.77 billion cost of nonfatal injuries in connection with firearm crimes in one study is higher than the cost of nonfatal firearms crimes both with and without injuries in the other. To further satisfy critics, I have recalculated the cost of nonfatal firearms crimes. I multiplied the number of nonfatal firearm injuries by the average cost of firearm crime as calculated in Miller, Cohen and Wiersema (i.e., $18,360 x 82,300 = $1,511 billion). Subtracting that number from $3.77 billion gives $2.259 billion (this avoids double-counting of nonfatal firearm injuries). $2.259 billion was then multiplied by 81 percent to account for the 19 percent average decline in serious crime since 1993 - for a total of $1.829 billion in added costs of firearm crime due to nonfatal firearm injuries. Adding this to the Miller, Cohen and Wiersema estimate gives us a total adjusted cost estimate of $18.629 billion or $20,360 per firearm crime.
  63. One might question whether the public should be picking up the cost of injury to criminals stemming from either felon-on-felon violence or a lawful defensive gun use. This discussion is not meant to ignore or trivialize the fact that many innocent people are murdered and injured every year by firearms. Nor is it meant to imply that when a criminal is a victim of a gun homicide his murderer should not be pursued. The law must not turn a blind eye to any murder or violent crime, even when the victims are criminals. However, the discussion is meant to highlight the fact that figures for lost lifetime earnings or lost productivity due to gun homicides are probably overstated; many murder victims were not productive members of society.
  64. Peter W. Greenwood, Rand Research on Criminal Careers: An Update on Progress to Date (Santa Monica, Calif.: Rand Corp., 1980). Morgan Reynolds notes that surveys of prisoners conducted in Wisconsin in 1990 and in New Jersey in 1993 indicated that prisoners had committed 12 non-drug-related crimes on average the year before their incarceration. Morgan Reynolds, "Crime and Punishment in America: 1998," p. 16.
  65. Stuart J. Miller, Simon Dinitz and John P. Conrad, Careers of the Violent (Lexington, Mass.: D. C. Heath and Company, 1982).
  66. Paul E. Tracey, Marvin E. Wolfgang and Robert M. Figlio, Delinquency Careers in Two Birth Cohorts (New York: Plenum Press, 1990).
  67. Ibid.
  68. Zedlewski, Making Confinement Decisions. Zedlewski found that at 187 crimes per year, the average criminal is responsible for $430,000 in crime costs - an average of $2,300 per crime. Zedlewski points out that his estimate for the average number of crimes per felon per year was highly skewed because of a phenomenal number of crimes committed by a few super-predators. While more than 50 percent of the criminals interviewed reported committing fewer than 15 crimes per year, 25 percent committed more than 135 and 10 percent committed more than 600 crimes annually. For the purposes of this study, when calculating the "Long-Term Benefit of Defensive Gun Use" the author uses the average number of crimes per year (14) cited in Greenwood, Rand Research on Criminal Careers: An Update on Progress to Date, 1980. This number is similar to the numbers calculated by others; see Note 64.
  69. Cumulative long-term crime-related social benefit from terminal defensive gun uses (LBDGU) is calculated by multiplying the number of criminals (C) killed by the number of years their active criminal lifespan is reduced (Y) by the number of offenses not committed (O) by the average cost of crime (A): LBDGU=C*Y*O*A. This cumulative number increases each year as more criminals are killed in defensive shootings. Since all things being equal, a crime committed in the present is more costly than the same crime committed in the future, the future social benefits from any one year's criminal deaths should be so reduced - which would make the future social benefit of any single year's killings less, but still substantial. All LBDGU calculations use a 5 percent annual discount rate.
  70. Kleck, Targeting Guns. Even if one uses Kleck's low-end calculation of 1,400 legal civilian killings, the LBDGU is still substantial.
  71. If Zedlewski's numbers are closer to the truth and most criminals do commit approximately 187 crimes per year, the LBDGU is about 10 times greater.
  72. The case of Bernard Goetz in New York provides powerful anecdotal evidence of the benefits of defensive gun use. In 1984 Goetz, who had been robbed on several occasions, became a hero to some and a pariah to others when he shot four youths on the subway who were trying to rob him. Between the time Goetz fended off the attack and turned himself in, subway crime went down by half. After a lengthy and very public trial, Goetz was acquitted of attempted murder - but convicted under New York's strict gun control laws of carrying an unlicensed firearm. Three of the four youths whom Goetz shot later wound up in jail or prison: one for raping and beating a pregnant woman and the other two for robbery. Of the four teenage criminals, the only one whose crime career ended was Darrell Cabey, who was permanently paralyzed and brain-damaged. In a perverse twist, in 1996 Cabey's family won damages in the amount of $43 million in a civil lawsuit against Goetz.
  73. Cohen, "Half-Cocked." Since Cohen's report, two more cases against gun manufacturers have come and gone. One (Bubalo et al. v. Navegar, Inc.) was dismissed by a federal court. The second (Halberstam v. S. W. Daniels) went to the jury, which found for the defendant gun manufacturer.
  74. Timothy A. Buman, The Compendium of United States Firearms Products Liability Cases (Atlanta: Cozen and O'Conner, 1995). More detailed information, including quotes from the final decisions on a number of the cases cited, comes from a packet of materials prepared for the U.S. Conference of Mayors crime task force by the American Shooting Sports Council.
  75. Wasylow v. Glock, Inc., No. 94-11073-DPW, slip. op. (D. Mass. April 4, 1996).
  76. Martin v. Harrington & Richardson, Inc., 743 F.2d 1200 (7th Cir. 1984).
  77. Delahanty v. Hinckley et al., 686 F. Supp. 920 (D.D.C. 1986, aff'd, 900 F.2d 608 (D.C. Cir. 1990).
  78. Lovett v. Sturm, Ruger et al., No. 93-30-474, slip. op. at 4 (Cir. Ct. Cty. of Genesee, Mich. 1995).
  79. Rhodes v. R. G. Industries, Inc., 325 S.E.2d 465, 467 (Ga. Ct. App. 1984).
  80. Richardson v. Holland et al., 741 S.W.2d 751, 757 (Mo. Ct. App. 1987).
  81. A recent case indicates that the best efforts of Ms. Barnes and Judge Weinstein to target gun manufacturers may ultimately be in vain. Halberstam v. S. W. Daniels in the U.S. District Court's Eastern Division of New York was, until Hamilton, the only gun case in federal courts to pass judicial scrutiny and actually go to a jury. The federal jury cleared the gun manufacturer of all liability in the killing of a young Hasidic Jewish student. The jury found the manufacturer not responsible for what is done with its products once they are sold. This case is of special relevance to Hamilton since the presiding judge was Jack Weinstein - which probably explains why it reached the jury in the first place.
  82. The 1987 Murder Analysis report for Chicago showed that 54 percent or 374 of Chicago's 691 murders were committed with guns (with the .38 revolver leading the list); kitchen knives were second on the list with 88 murders. Among the other murders, 54 people were beaten or strangled to death by hand, 29 were killed with pocket knives, 10 with baseball bats and two with forks. Nationally, murders committed with firearms have increased 13 percent since 1964 to 68 percent, but 32 percent of murders are still committed with weapons other than guns. See Maguire and Pastore, eds., Sourcebook of Criminal Justice Statistics.
  83. Anne G. Kimball, "Firearms Litigation Is Not the Next Wave in Product Liability Cases," Boston, Mass., Continuing Education, 1997, pp. 11-16. Though this paper presents a thoughtful discussion of the history of firearms liability litigation, the current evidence suggests that Ms. Kimball was entirely too optimistic concerning the future of firearms litigation. One might suggest that she underestimated both the depth of some people's animosity toward firearms and the ingenuity and greed of her colleagues before the bar. For evidence of this see Elaine McArdle, "Lawyers, Guns and Money: Firearms Litigation Ready to Explode," Lawyers Weekly USA, November 30, 1998, pp. B2-B5.
  84. The courts rejected this argument in, among other cases, Patterson v. Rohm-Gessellschaft, 608 F.Supp. 1206 (N.D. Tex. 1985).
  85. The courts rejected this argument in, among other cases, DeRosa v. Remington Arms Co., 509 F. Supp. 762, 769 (E.D. N.Y. 1981).
  86. The courts rejected this argument in, among other cases, Moore v. R. G. Indus., Inc., No. C-82-1417-MHP, slip. op. at 8 (N.D. Cal. Aug. 29, 1984) aff'd, 789 F.2d 1326 (9th Cir. 1986). This case is directly on point in both the public and private lawsuits coming out of Chicago. Gun manufacturers do advertise guns as inexpensive, easily concealed, corrosion resistant, etc., but these characteristics appeal to average gun owners and are of paramount importance to the large and growing number of people carrying concealed handguns.
  87. The courts rejected this argument in, among other cases, Mavilia v. Stoeger Indus., 574 F. Supp. 107 111 (D. Mass. 1983). The courts have recognized this as one of the most specious arguments made concerning firearms. Firearms carry extensive warnings concerning their safety features and safe handling; newer guns even have warnings on their barrels.
  88. The courts rejected this argument in, among other cases, Shipman v. Jennings Firearms, 791 F.2d 1532, 1534 (11th Cir. 1986).
  89. The courts rejected this argument in, among other cases, Forni v. Ferguson, 648 N.Y.S. 2d 73 (1996).
  90. "Accident Facts 1998," National Safety Council:www.nsc.org/lrs/statinfo/af8.htm.
  91. While Chicago may not have grounds to sue gun manufacturers, it may have grounds for action against the dealers. On announcing the lawsuit, Mayor Daley played videotapes of purportedly illegal gun purchases made by undercover police officers. If the dealers in question broke the law as claimed, it is not clear why Chicago did not pursue criminal cases against them. That it did not hints the cases may be more about winning money than preventing gun violence.
  92. Forni v. Ferguson et al., No. 132994/94, slip. op. at 11 (N.Y. Sup. Ct. Aug. 2, 1995).
  93. Forni v. Sturm, Ruger & Co. et al., No. S8613, slip. op. at 77 (N.T. App. Div. 1st Dept. Oct. 1, 1996).
  94. Riordan v. Int'l Armament Corp., 477 N.E. 2d 1293, 1295-96 (Ill. App. Ct. 1985).
  95. NERA's research gathered for Hamilton does not bolster the negligence argument. First, NERA admits that its research has important flaws, mainly because it assumes that every gun crime is committed with a different gun - which is how NERA came to its oversupply figures. However, even NERA recognizes that illicit guns are used repeatedly. In addition, as the author showed earlier, a hard-core 10 to 25 percent of criminals commit almost half of all crimes, and they do not use a different gun for each crime. Second, the size of the civilian gun stock is not known with certainty. The best estimates could be off a few million or tens of millions (see Kleck, Targeting Guns: Firearms and Their Control, pp. 64-70, 96-100, on the problems with gun research data). According to Kleck, underreporting of gun ownership is common. Third, only a couple of gun manufacturers sell directly to licensed gun dealers. Most sell to federally licensed firearms wholesalers who then ship guns all over the country. While manufacturers undoubtedly know which wholesalers receive their guns, they do not track or have the authority to track which retailers purchase their guns from wholesalers. Finally, nothing changes the fact that firearms manufacturers ship only to licensed gun dealers. The intervening actors in any criminal misuse of a firearm should, by legal precedent, provide manufacturers with ironclad protection against civil liability for gun misuse.
  96. Bubalo et al. v. Navegar, Inc. (U.S. District Court, Northern District of Illinois, Eastern Division).
  97. Almost every editorial page that has commented has noted the lack of a legal basis for and been critical of the gun lawsuits. Editors have routinely argued that if these lawsuits succeed they will establish a terrible precedent in product liability law. See, for example, "When Lawsuits Make Policy," Economist, November 21-27, 1998, pp. 17-19, 27-29; "Courtroom Cowboys," Wall Street Journal, November 16, 1998; "Mayors Go Gunning for Guns," Investor's Business Daily, November 18, 1998; "Cities Are Making a Basic Error in Litigious Attacks on Gun Makers," Tampa Tribune, November 23, 1998; "Boston Gun Suit a Shot in the Dark," Boston Herald, November 22, 1998; "Gun Lawsuits Miss the Mark," Miami Herald, November 13, 1998; and "Money from Guns," San Diego Union-Tribune, December 4, 1998.
  98. The polling firm DecisionQuest found in a recent survey that 66 percent of Americans do not believe gun manufacturers should be sued for crimes committed with guns. Only 19 percent of those polled supported such suits. NRA Crimestrike, Crime Watch Weekly, January 19, 1999, and Southwestern Legal Foundation News Release, January 19, 1999.
  99. One very indirect and difficult-to-measure way that a finding for the plaintiffs in these lawsuits might threaten public safety is by heightening the fears of the most antigovernment members of the militia movement. Militia members might conclude that the suits are aimed at disarming the largely law-abiding public and respond with violence.
  100. Price, "City Considers Anti-Gun Lawsuit."
  101. John R. Lott, "Gun Shy," National Review, December 21, 1998, pp. 46-48. Furthermore, a 1996 poll found that more than 60 percent of Americans felt that citizens should be allowed to carry concealed handguns and only 5 percent felt that manufacturers or retailers should be held responsible for firearm misuse. Eighty-four percent felt that the individual who used the firearm illegally should be held responsible. See the Tarrance Group, A Survey of Voter Attitudes in the United States, July 21-22, 1996: www.assc.org/afcsurvy.html.
  102. See Appendix I for a discussion of personalized gun safety technologies, a key point in the New Orleans lawsuit.
  103. Several facts indicate that the real aim of the lawsuits is to bankrupt the gun industry. First, as argued earlier, the lawsuits are weak as a matter of law. Second, the firearms industry is relatively small (approximately $2 billion in sales per year) and lacks the resources to fight even a fraction of the threatened lawsuits. The industry could suffer the "death of a thousand cuts" long before the last suit filed gets a hearing.
  104. Statistical Abstract of the United States 1997 (Washington, D.C.: U.S. Commerce Department, 1997); and National Crime Victimization Survey 1996 (Washington, D.C.: Bureau of Justice Statistics, 1997).
  105. Only 34.5 percent of black households possess firearms, compared to 44.4 percent of white households. Black households with less than $10,000 annual income have an even lower rate of gun ownership, 15.4 percent. These numbers suggest that black households suffer more crime at least in part because they are less likely to be armed and thus are easier prey for criminals. See Kleck, Targeting Guns: Firearms and Their Control, p. 101.
  106. The legislation defined small business as companies with fewer than 25 full-time employees and annual revenues of less than $5 million.
  107. Its inaction was premised on its mission: to represent lawful firearm users. The NRA joined the battle against the lawsuits because it recognized that a successful attack on the industry would "deprive [its] members of their rights." See Robert Suro, "In Policy Shift, NRA Will Lobby for Gun Makers," Washington Post, January 15, 1999.
  108. This legislation would scuttle the lawsuit Atlanta Mayor Bill Campbell filed February 4, 1999, against the firearms industry. Campbell vowed to challenge the legislation in court. David Firestone, "Gun Lobby Begins a Concerted Attack on Cities' Lawsuits," New York Times, February 9, 1999. Since this time, legislators in several other states, including Texas, Kansas, South Dakota and Tennessee, have introduced bills that would either limit the liability of gun makers and distributors for the negligent or criminal misuse of their products or forbid cities from filing liability suits.
  109. See the Second Amendment Foundation website: www.saf.org.
  110. Information on the bill SF 128 can be found on the National Rifle Association website: www.nra.org.
  111. Leslie Tamar Snadowsky, "Firearms Makers Face Suit," Dallas Morning News, October 31, 1998.
  112. They will receive 20 percent of any settlement or 30 percent of any court judgment. See Matt Labash, "Lawyers, Guns, and Money," Weekly Standard, February 1, 1999, pp. 25-29, for a detailed examination of the origin of the New Orleans suit and information concerning the motives and strategies of the lawyers involved.
  113. According to a 1996 report by the Sandia National Laboratory, user-specific or "smart gun" technology is years away, and the police have expressed skepticism about it. See D. R. Weiss et al., Smart Gun Technology Project Final Report, 1996, Sandia National Laboratories, Albuquerque, N.M. See also Iver Peterson, "'Smart Guns' Set Off Debate: Just How 'Smart' Are They?" New York Times, October 22,1998.
  114. Barrett, "Other Cities May Follow New Orleans in Anti-Gun Suit, but Fight Will Be Hard."
  115. Ultimately, talk of safety devices misses the mark. Even the best safety devices, whether trigger locks or "smart technology" devices, would have drawbacks encouraging some owners either not to use them or to disable them. In some instances, the devices themselves could make the guns less useful or less safe. In addition, determined criminals would be able to defeat such devices as they do other low-tech and high-tech anticrime technology. More important than any safety device are the intentions of and care taken by the person using the gun.
  116. In what might seem an ironic turn of "justice," if New Orleans' suit or any of the other cities' suits are ultimately successful, Mayor Morial may have placed himself and the city at risk from similar suits. Why? In February 1998, in an effort to upgrade the New Orleans police department arsenal, the city became, in effect, a gun dealer by trading more than 8,000 confiscated guns and 715 police department issue Beretta 9mm. semiautomatic pistols to gun dealers for 1,700 Glock 9mm. pistols. The pistols traded in have been redistributed and resold across the nation. This transaction could pose a serious liability problem for New Orleans in the future, should any of these guns be traced to crimes. See Labash, "Lawyers, Guns, and Money."
  117. Rick Hampson, "Gun Jury: Some Makers Negligent," USA Today, February 12, 1999; Rick Hampson, "Gunmakers See Mixed Verdict in Liability Suit as Defeat," USA Today, February 15, 1999; Robert Suro, "Gun Makers Found Liable in Shootings," Dallas Morning News, February 12, 1999; Vanessa O'Connell and Paul M. Barrett, "Gun Makers Are Set Back in Jury Verdict," Wall Street Journal, February 12, 1999.
  118. For the best description of the infighting among the jurors, see Vanessa O'Connell and Paul M. Barrett, "Open Season: How a Jury Placed the Firearms Industry on the Legal Defensive," Wall Street Journal, February 16, 1999.
  119. "New York Verdict Expected to Be Overturned on Appeal," American Shooting Sports Council (ASSC) press release, February 12, 1999.

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