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Attack on gun makers losing steam Sunday, August 26, 2001

By Chris Mondics
INQUIRER WASHINGTON BUREAU
WASHINGTON - Three years after cities unleashed a wave of lawsuits to hold gun
makers accountable for firearm violence, the legal assault has produced few
clear victories and little change in the way guns are sold or regulated.
And there are signs the litigation may drag on for years without resolution.
Since New Orleans filed the first lawsuit on Oct. 28, 1998, nearly half the
municipal cases against gun manufacturers have been dismissed, including
Philadelphia's and Camden County's; a similar number are moving forward, but are
in their early stages.
At the same time, courts in New York and California in the last three weeks have
rejected high-profile claims by individual victims of gun violence, deciding
that gun makers could not be held responsible for their injuries.
Lawyers for the cities and gun-control groups that initiated the lawsuits say
the cases are still in their infancy, and may yet produce huge judgments against
gun makers.
But a series of setbacks suggest that cities face formidable obstacles in
holding gun makers responsible for crimes committed with handguns.
N.Y. lawsuit dismissed
The latest setback occurred Aug. 10 when a trial judge in New York dismissed a
lawsuit by state Attorney General Eliot Spitzer that sought to hold gun makers
and distributors accountable for hundreds of gun killings there each year.
The judge said the gun makers had little or no control over the stores that sell
their firearms and could not be responsible if their weapons fell into the hands
of criminals.
"New York is not alone; this is happening all over the country where other cases
are being dismissed, but we still believe in the case and we are going to
appeal," said Juanita Scarlett, a spokeswoman for Spitzer.
Since the suits were filed, a handful of companies have been offering handguns
with new safety features such as internal locks and indicators showing whether a
gun is loaded.
Others, such as Smith & Wesson, are trying to develop so-called smart-gun
technology that would prevent anyone but a gun's owner from using it.
Smith & Wesson had agreed earlier to sweeping changes in the way it designs and
markets guns in exchange for protection from the municipal lawsuits - but is
nonetheless a defendant in some of them. Furthermore, gun owners angered at the
company's agreement with the Clinton administration boycotted it, cutting into
sales. Earlier this year, the gun maker was sold for a fraction of its previous
value.
Gun-control goals unmet
Meantime, gun-control advocates' most important objectives, such as mandatory
background checks for all sales at gun shows and national limits on handgun
sales, have not been realized.
Lawrence Keane, vice president of the National Shooting Sports Foundation, an
industry group, says new design features were in the works before the lawsuits
were filed. "I can't think of a single instance where a manufacturer put a
product on the market or took it off because of the litigation," he said.

Lawrence Keane, vice president of the National Shooting Sports Foundation, an
industry group, says new design features were in the works before the lawsuits
were filed. "I can't think of a single instance where a manufacturer put a
product on the market or took it off because of the litigation," he said.
When state attorneys general began settling dozens of lawsuits against tobacco
companies several years ago, producing billions of dollars in awards for states,
gun-control proponents drew inspiration and reasoned they might have similar
success against gun companies.
In quick succession, dozens of municipal governments and New York state sued
manufacturers, alleging that they had marketed guns in high-crime city
neighborhoods, knowing that a large number would end up in the hands of
criminals.
Several cities conducted undercover investigations of gun stores that produced
evidence that dealers in high-crime areas overlooked obvious signs that buyers
were breaking the law.
The suits relied on the theory that gun companies were responsible for the
public safety and health costs engendered by gun violence because they had
flooded high-crime areas with guns and created a criminal market for them.
David Kairys, a Temple Law School professor assisting in most of the city
lawsuits, says the legal battle over guns has come to resemble the one over
tobacco. The tobacco companies won every lawsuit filed against them until state
attorneys general banded together and sued to recover the public health costs of
smoking, a new approach then, Kairys said. Soon after, the tobacco companies
settled.
"If you look at the early stages of the tobacco litigation, the city suits have
actually done better," Kairys contended. He estimated that the litigation could
take five to 10 years to work its way through the courts.
Of the 19 separate lawsuits by municipalities against gun makers, eight have
been dismissed. Seven are moving forward. The balance, including a suit by
Camden City, have been mired in preliminary maneuvering.
Gun makers have some powerful advantages not shared by the tobacco companies.
Gun owners are passionately protective of their sport and are readily mobilized
on Election Day. Many Democrats have lately been blaming Al Gore's proposals for
tighter gun restrictions for costing them the White House.
Responding to that political clout, 27 state legislatures, including
Pennsylvania's, have passed laws barring certain suits against gun makers, and
those laws are proving to be big obstacles.
On Aug. 6, the California Supreme Court ruled 5-1 in a case brought by gun-crime
victims that the California legislature specifically barred such suits.
The case stemmed from the 1993 massacre of eight people in a San Francisco law
office. The gunman, who said he had a grudge against lawyers, opened fire with
two TEC-9s, a semiautomatic pistol, and a handgun. Victims and relatives argued
that gun maker Navegar Inc., whose ads touted TEC-9s' resistance to
fingerprints, deliberately marketed its guns to criminals.

But the court said the company - which quietly went out of business in April -
could not be held responsible for the criminal conduct of its customers.
In the same vein, last December, U.S. District Judge Berle M. Spiller, ruling in
Philadelphia, said that laws enacted by the Pennsylvania legislature in 1995 and
in 1999 gave the power to regulate gun makers to the state legislature, and
barred the city from filing such lawsuits.
The judge also found little evidence to connect the marketing and sales
practices of the manufacturers to gun crimes.
Apart from state laws that have helped gun makers, there is another important
difference between the tobacco cases and the gun litigation. To date, no
gun-company documents have turned up suggesting any deliberate efforts to
develop a market for the guns among criminals.
"The tobacco companies played Hide the Salami," and that is not the case with
gun firms, said Paul Januzzo, vice president and legal counsel of Glock Inc.,
the Austrian gun maker. Gun-control advocates are undeterred. Dennis Henigan,
legal director of the Brady Center to Prevent Gun Violence, noted that important
city lawsuits in Boston, Los Angeles, Detroit and elsewhere were moving forward.
Gun companies have already turned over documents in those cases.

Chris Mondics' e-mail address is [email protected].

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