Suing Gun Manufacturers: Hazardous to Our Health
Monday, March 01, 1999
by H. Sterling Burnett
Table of Contents
- Executive Summary
- Suing Gun Makers
- Guns: Criminal Misuse and Self-Protection
- Concealed Weapons and Crime
- Costs and Benefits of Firearms
- Bad Law: Banning Guns by Lawsuit
- Bad Public Policy: Disarming Citizens
- Securing Citizen Access to Firearms
- Appendix I: The New Orleans Suit
- Appendix II: The Hamilton Verdict
- About the Author
Suing Gun Makers
"Chicago claims it spent $433 million in the previous five years on police, emergency medical care and other costs associated with guns violence."
When Mayor Rendell was considering whether Philadelphia should sue gun makers, the Bureau of Alcohol, Tobacco and Firearms (BATF) collected information and shared it with Pennsylvania's state police in an unprecedented fashion.11 The data showed that of the 38,000 handguns legally purchased in Philadelphia in 1996, 17 percent, or approximately 6,460, were sold to just over 700 individuals - each of whom bought more than five handguns that year.12 David Kairys, a lawyer originally consulted by the mayor, concluded that either many of these purchasers were buying guns on behalf of criminals or unlicensed black-market gun dealers were reselling legitimately purchased handguns to ineligible persons.13
The Chicago Lawsuit. Both overall serious crime and murder rates have dropped in Illinois in general and Chicago in particular, but not as fast or as far as in the nation as a whole. While the national murder rate declined 9 percent in 1997, Chicago saw less than a 4 percent decline.14 The Illinois murder rate has fallen only 19 percent since 1993, compared to 30 percent nationally.15 Nearly 500 people die in Chicago each year from gunshot wounds.
Chicago has some of the strictest gun laws in the country. Handgun sales and the private ownership of any handgun not registered before March 30, 1982, are illegal. However, handgun sales are still legal in the suburbs and, according to the lawsuit, suburban sales are the source of Chicago's problems.
Chicago sued gun manufacturers and others on November 12, 1998, for $433 million the city claims it spent in the previous five years on police, emergency medical care and other costs associated with gun violence. The lawsuit, building on the work that David Kairys did for Philadelphia, alleges that the gun industry oversupplies suburban gun shops, knowing the guns will be sold unlawfully to Chicago residents. This oversupply of guns is a public nuisance analogous to noxious factory emissions, the lawsuit alleges. It also claims that manufacturers advertise gun characteristics that appeal to gang members and other criminals. Among these characteristics are concealability, affordability, fingerprint resistance and the capacity to fire highly destructive ammunition.16
In addition to gun manufacturers and wholesalers, the suit names 12 licensed gun dealers as codefendants. These dealers had sold guns to undercover Chicago police who, the city claims, made clear to the sellers that the guns were being purchased for criminal purposes, by one person on behalf of another or for resale to criminals.
The Hamilton Suit. The lead plaintiff in Hamilton v. Accu-Tek, the lawsuit filed by tort attorney Elisa Barnes, was Freddie Hamilton, a New York mother who lost her teenage son, Nunzi Ray, to a bullet intended for another teenager.17 The accused shooter in the Nunzi Ray killing was acquitted in a criminal trial.
Ms. Barnes claimed gun manufacturers distribute a dangerous product in a negligent manner in that they do not track firearms from production to final destination in criminal hands. Various gun control advocacy groups (e.g., the Center to Prevent Handgun Violence and Handgun Control Inc.) declined to join with Ms. Barnes in the suit because, in contrast to traditional negligence cases, she was not going after a particular gun, traced from a particular crime back to a specific manufacturer.18 She responded that this had been tried and had failed in previous negligence cases against gun makers.
A more important reason why Ms. Barnes did not sue just the gun manufacturers is that the police identified the gun involved in only one of her plaintiffs' cases. None of the manufacturers Ms. Barnes sued had guns tied to these cases. Indeed, Ms. Barnes could not even show whether the guns used against her clients' loved ones were bought from gunrunners by criminals or bought over the counter by lawful gun buyers, then stolen by criminals. Ms. Barnes relied on three critical factors to make her case: a sympathetic judge, testimony from a gun company insider and data on gun sales.
"A previous suit pioneered the theory that manufacturers' liability could be based on market share."
She successfully fought to have the case assigned to semiretired judge Jack Weinstein because he is widely known for his pro-plaintiff solutions to mass injury lawsuits and his penchant for judicial lawmaking. In fact, he presided over an earlier birth defects suit Ms. Barnes brought against manufacturers of the antimiscarriage drug DES. In that case, Judge Weinstein pioneered the theory that in rare circumstances, when consumers were unable to identify the particular makers of a product which had caused harm, manufacturers' liability could be based on their market share.
Her faith in Judge Weinstein's willingness to make new law was vindicated early. In a preliminary ruling, Judge Weinstein declared, "[There may] come a point that the market is so flooded with handguns sold without adequate concern over the channels of distribution and possession that they become a generic hazard to the community as a whole because of the high probability that these weapons will fall into the hands of criminals and minors."19 Judge Weinstein also allowed Ms. Barnes to expand her plaintiff group to 11 from two.
Ms. Barnes hoped that testimony from Robert Hass, a former senior vice president for marketing at Smith & Wesson Corp., would prove that the industry knows many of its guns end up in the hands of criminals via black market sales from federally licensed but largely unsupervised firearms dealers. Hass and the BATF both acknowledge that manufacturers do cooperate with the BATF when responding to a request to trace a specific gun. However, Hass claims that the industry, using internal records, could do more to track suspiciously high-volume gun sales to specific retailers - especially when evidence emerges that guns sold by a particular retailer are regularly linked to violent crime. When this occurs, Hass claims, the companies could halt sales to the suspicious dealers. [See the sidebar: The Structure of the Firearms Industry.]
"The plaintiffs funded a study that found a pattern of gun smuggling from states with lax gun purchase laws to states with relatively strict laws."
Third, Ms. Barnes hired corporate consultants National Economic Research Associates (NERA) to search government statistics and reports on guns for evidence of trends. NERA found a pattern of gun smuggling from states like Florida with relatively lax laws to states like New York with relatively strict laws concerning gun purchases. In addition, NERA concluded that more handguns were sold in less restrictive states than could be expected given the levels of legitimate gun ownership, supporting Ms. Barnes' claim that gun makers knowingly oversupply gun markets with low regulations.
The MacArthur Suit. The MacArthur Justice Center's suit (Young v. Bryco Arms, Inc.) was brought on behalf of the families of three victims of handgun violence in Chicago.20 This suit was more focused than the ones brought by the mayors or Ms. Barnes, since it aimed only at the manufacturers of the guns actually used to commit the crimes cited - Smith & Wesson Corp., Navegar, Inc. and Bryco Arms, Inc. - rather than the gun industry as a whole. The victims had two things in common: they were young and they died as the result of gang shootings:
- Andrew Young, 19, was killed by two gang members who mistook him for a member of a rival gang.
- Salada Smith, 24, was the innocent victim of a drive-by shooting (she was several months pregnant at the time).
- Robert Owens, 15, was killed by a 12-year-old white with orders to kill a couple of black people.
The arguments made in Young are similar to those made in the Chicago lawsuit and in Hamilton. The plaintiffs in Young argue that the manufacturers should be held financially responsible for gang violence because "[the defendants] creat[e] and suppl[y] a vast, illicit, underground market in handguns in order to meet the demand for weapons of gang members and juveniles."21 As in the Chicago suit, the plaintiffs' claim that the manufacturers design guns for and market them to gang members is based on the characteristics claimed for the guns.