Gun Lawsuit Fray Pits Gun Lobby, Lawmakers Against Cities
By Clare Nolan, Senior Writer
WASHINGTON - On the sidelines for more than a year as big-city mayors across the country first threatened then began filing lawsuits against the gun manufacturing industry, the National Rifle Association has now entered the fray in full force. By pushing legislation at the state and federal levels, the NRA is using its political muscle to try to quash lawsuits seeking to hold gun makers liable for the public health consequences of gun violence in the same way tobacco firms were legally pursued for problems caused by smoking.
Within the last few weeks, the gun-owners' lobby orchestrated the introduction of legislation in Florida and pre-filed a bill in the Louisiana statehouse to quash lawsuits filed by Miami-Dade County and New Orleans.
In Georgia, Democratic Gov. Roy Barnes signed a bill February 9 that would nullify a suit filed by Atlanta on February 4.
Last Wednesday, even as Detroit's police chief voiced his support for a suit under consideration by Detroit and Wayne County, Republican Rep. Valde Garcia introduced a bill in the Michigan House to abort those plans.
In Washington, Congressman Bob Barr (R. Ga.) plans to introduce this week a federal bill that would kill all the suits, which now number five. Chicago announced its legal action last November and Bridgeport, Conn. sued January 27.
Chicago alleges gun manufacturers bypassed the city's strict gun control laws by saturating the market just outside city limits, knowing those guns would wind up in the hands of Chicago residents. Bridgeport is making an argument similar to Chicago's and, with New Orleans, Atlanta and Miami/Dade, is also accusing the gun makers of failing to devise safer products.
The NRA denies its late entry into the legal battle stems from old disagreements with more moderate gun manufacturers, whose lobbying organizations include the American Shooting Sports Council (ASSC). "Now is when state legislatures come into session," said NRA spokesman Bill Powers when asked why the organization waited till now. The NRA, he said, was never a party to the litigation and had no reason to get involved earlier. Recent press reports about the lawsuits set off alarms among gun owners, he said.
"Our members are concerned, absolutely. Because they see it as a backdoor way to accomplish what these mayors and these anti-gun lobby groups have not been able to accomplish in state legislatures and in Congress," Powers said.
"Have there been issues in which we disagreed with the industry? Of course," he said.
Specifically, the NRA opposed a 1997 deal between industry representatives and the White House under which the top gun manufacturers agreed to begin shipping child safety locks with their weapons. At a Rose Garden ceremony celebrating the pact, ASSC Executive Director Richard Feldman stood shoulder-to-shoulder with gun-control advocates Bill Clinton and Janet Reno.
An outraged NRA fired off letters to the manufacturers accusing them of bowing to pressure from gun control advocates.
Last week, the Wall Street Journal reported that the NRA and two key ASSC members, Colt's Manufacturing Co. and Sturm, Ruger & Co., are now pushing for Feldman's removal, displeased with what they see as his attempts to negotiate with the cities on behalf of the manufacturers.
NRA and Manufacturers Team Up
At a recent meeting in Phoenix, while the NRA pressed the campaign against Feldman, the manufacturers agreed to create a new entity called the Hunting and Shooting Sports Heritage Foundation.
Each of the major gun makers agreed to give one percent of annual sales to the organization, which will coordinate the industry's defense, attempt to forestall any additional lawsuits and finance a public relations campaign aimed at changing negative public perceptions of the industry.
The foundation will also work closely with the NRA.
In a press release, the group's leader, Robert Delfay, welcomed the NRA's help, but took pains to distance the manufacturers from the NRA's no-compromise' stance. "Our goal is to open, not close, the door on these issues," he said.
"While we will always be two groups with two separate constituencies and may not always be in complete agreement, there are areas of common interest where we can coordinate better and we are committed to that," he said.
In many states, the NRA is seeking to build on existing state statutes that prohibit local governments from enacting their own gun control laws. Georgia law already contained such a provision. The amendment enacted in February extended that statute.
Michigan's bill is similar to Georgia's, but would also prohibit local governments from requiring gun safety locks, one of the cities' key demands.
In Florida, legislators are considering whether to make lawsuits against gun makers a crime. Under the proposed statute, Miami Mayor Alex Penelas would be guilty of the third-degree felony for filing his suit. Conviction could bring a five-year prison term or a $5000 fine.
The NRA declined to characterize legislation introduced or about to be introduced in another 12 states. But, many lawmakers have said they will use the Georgia law as their model. Legislators in Alabama, Alaska, Arkansas, Colorado, Kansas, Montana, Oklahoma, South Carolina, Tennessee, Texas, Vermont and Wyoming have introduced bills, even though no cities in these states have announced plans to sue.
Lawyers for four of the five cities call the NRA's legislative campaign ridiculous.' "It defeats their argument that these are frivolous lawsuits. Why are they so afraid?" said Jonathan Lowy, an attorney with the Center to Prevent Handgun Violence.
"What they are saying here is Mayors have no rights in the court system to protect their citizens," said U.S. Conference of Mayors spokeswoman Katie Cullen.
The new laws do not immediately terminate the lawsuits. The lawyers say they expect to challenge the statutes' validity in the course of arguing their cases.
The NRA's fast-paced assault does indicate the alarm with which the industry and its allies have now come to view recent changes in the legal landscape. In February, a Brooklyn jury handed the industry its first major loss. In Hamilton v. Accu-tek, jurors decided 15 gun makers were negligent in the marketing and distribution of their products.
While New York attorney Elisa Barnes brought and argued the Brooklyn case, another, more formidable foe has been chipping away at the gun industry's invulnerability elsewhere.
In 1989, Sarah Brady's Center to Prevent Handgun Violence formed a legal arm specifically to pursue claims against the gun industry.
So far, the Center's major victories have come in cases against gun dealers. In Kitchen v. K-Mart Corp., a Florida jury found a gun dealer liable for injuries caused when Deborah Kitchen's ex-boyfriend shot her. K-Mart had ignored the man's obvious intoxication when it sold him the gun.
In other cases, however, juries have refused to find gun manufacturers liable for harm caused in criminal and accidental shootings. In a recent case in California, Dix v. Beretta U.S.A. Corp., a jury failed to find the gun maker at fault in the death of Kenzo Dix, a 15-year old killed by a friend who thought a Beretta 9mm semi-automatic was unloaded.
Center lawyers argue that the group has scored legal victories just by getting cases before juries, something that took plaintiffs against the tobacco companies years to accomplish. "The case against the gun makers has come along much more quickly than with tobacco," Lowy said.
With the tobacco litigation in mind, Philadelphia Mayor Edward Rendell in 1997 asked the Center to advise the U.S. Conference of Mayors on possible legal strategies against gun makers.
Although many credit Rendell with conceiving the lawsuits, so far Philadelphia has not entered the fight. Publicly, Rendell says he is keeping all options open including litigation. An aide who asked not to be identified said the mayor thinks a lawsuit will take too long. Rendell is waiting for the manufacturers' response to the city's latest demands, but is not optimistic, the aide said.
Some political analysts speculate that Rendell's statewide ambitions might be responsible for his hesitation. NRA members are numerous and outspoken in rural and western Pennsylvania.
The Tobacco Lawyers
While many were expecting a suit in Philadelphia, New Orleans went to court first on October 30, seemingly taking gun makers by surprise. They reacted by canceling plans for a Big Easy gun show.
Mayor Marc Morial, intrigued by Rendell's idea, had enlisted the talents of his long-time friend and fellow lawyer, Wendell Gauthier, in early 1998. Gauthier's firm belongs to the national consortium of law firms, the Castano Group, that was instrumental in organizing class action lawsuits against the tobacco industry. Parallel cases filed by state attorneys general across the country culminated in a $206 billion settlement for 46 states last November.
Forty firms within the Castano Group are bearing the costs of representing New Orleans and advising Bridgeport, Miami and Atlanta. The Center to Prevent Handgun Violence is serving as co-counsel. Should New Orleans win, the Castano Group would receive 20% of any settlement and 30% of any damages awarded at trial.
While hiring the tobacco lawyers' greatly multiplies the cities' resources, it has also raised the hackles of gun-control opponents. "I think Americans see it for what it is," said NRA spokesman Bill Powers, "an effort driven by greedy trial attorneys and mayors looking to blame someone for their problems."
"This is not a money case," said Gauthier partner Daniel Abel. "If we were doing this case for the money, we wouldn't be doing it."
Analysts estimate gun manufacturers' annual sales at less than $2 billion, a small fraction of the fortune generated annually by cigarette sales.
"Frankly, we hope they (the lawsuits) don't get to trial," said Katie Cullen, a spokeswoman for the U.S. Conference of Mayors. "We want gun safety. We're not in it for the money. We want gun manufacturers to come to the table."
At least 41 other cities and the State of New York have announced they are considering legal action. St. Louis Mayor Clarence Harmon told the Post-Dispatch last week he intends to file suit within the next two months. Cullen says Los Angeles and San Francisco are considering consolidating their cases with those of 28 other California cities.
Chicago Goes It Alone
Chicago Mayor Richard Daley has opted to fight alone, choosing to rely on the city's Corporation Counsel to prepare and argue its case. Two private law firms are advising the city pro bono.
Corporation Counsel spokeswoman Jennifer Hoyle says that decision was never based on the public relations difficulties of relying on the lawyers who pursued the tobacco companies. "I never heard that articulated as a concern among us," she said.
Daley asked the city's lawyers to look into litigation in late 1997. He also asked the Chicago Police Department to investigate suburban gun dealers. Daley says he wanted to know how in a city with some of the strictest gun control laws in the nation, including a complete ban on handguns 570 Chicagoans died in shootings in 1997.
From August to November last year, Chicago undercover police officers purchased 171 guns at area gun shops. They say they left the dealers no doubts they were breaking Illinois laws or were intending to break Chicago law by taking the guns into the city.
Daley announced the results of the investigation and the filing of the suit on November 12. He is seeking $433 million in damages, the cost, he says, of gun violence in Chicago and Cook County since 1994.
Chicago claims the gun manufacturers are complicitous in the practices of the dealers and helped to create a public nuisance.'
"The gun industry also has an obligation to prevent the illegal misuse of its products," Daley told an Illinois House Committee in November.
Chicago's claim is the first of its kind, although it echoes the negligent marketing argument of the Hamilton case. In Hamilton, attorney Elisa Barnes maintained that the gun manufacturers purposefully flooded the gun market in southern states where gun control laws are less restrictive than in New York, knowing buyers intended to smuggle those guns north.
After the verdict, the Wall Street Journal reported that most jurors had found that argument too confusing and had relied on other evidence to reach their decision.
"[Lawyers] are going to have to find a way to present the situation to juries so the logic of manufacturers' culpability is clear," said Georgetown University Law Professor Heidi Feldman.
The gun manufacturers' argument is relatively simple. They maintain their products are safe when used properly and they bear no responsibility for unscrupulous dealers or for the actions of criminals or others who fail to use the guns as they were intended.
The industry also supports an argument made by the NRA: that the enforcement of existing gun control laws will go a long way toward eliminating gun violence.
"The hunting and shooting sports industry in our country has an unparalleled record of responsibility and accomplishment in areas of safety [and] education," said Robert Delfay of the Hunting and Shooting Sports Heritage Foundation.
The private law firms now involved in these cases, however, can apply their huge resources toward accumulating what Georgetown's Feldman calls "a good evidence bank."
"If it can be shown that their marketing practices or their design practices are unreasonably careless, because they make it easy for criminals to hurt people, then they will be held accountable," Feldman said.