December 6, 1999
New York Times
Judge Allows 3 Families to Sue Firearms Industry
By FOX BUTTERFIELD
A decision by an Illinois state judge last week to continue a private lawsuit
that accused the gun industry of knowingly creating an underground market in
handguns has encouraged 28 cities and counties suing the firearms companies
and may suggest that judges have become more receptive to innovative claims
against gun makers.
The decision, by Judge Jennifer Duncan-Brice of Cook County Circuit Court in
Chicago, was in a case brought by the families of three people killed by
handguns and not in a better known lawsuit by the city of Chicago.
But lawyers involved in the municipal lawsuits said the claims made by the
families -- that the firearms industry negligently distributed its products
and created a public nuisance -- are similar to cases brought by Chicago and
other cities and offer some indication of how judges may regard this new
approach to attempting to hold the gun companies responsible for urban
violence.
Judge Duncan-Brice denied a motion by the gun companies to dismiss the
lawsuit, saying individuals, not just a governmental entity, could bring a
claim that the firearms industry as a whole had created a public nuisance.
The judge also said it "is very clear to this court" that gun companies
knowingly violated Chicago's strict antihandgun laws by oversupplying
gunshops in the suburbs, where the laws are weaker, "creating an underground
market" in Chicago.
The decision is not a binding precedent in Illinois or other states, but it
is one of several recent rulings that may increase the pressure on the
firearms industry to negotiate a settlement after years in which the gun
companies won almost all suits against them, arguing that they could not be
held liable for damages caused by a legally manufactured product.
Officials from several of the gun companies and lawyers from San Francisco
and Los Angeles, among other cities, are scheduled to meet in Washington on
Tuesday as part of a newly formed committee to discuss what changes
manufacturers could make in the design and safety of their handguns as a way
to end the lawsuits, said people knowledgeable about the negotiations.
Another committee set up a month ago by the gun companies and cities to make
the firearms companies more accountable for the way guns are sold has yet to
meet.
Lawyers for several of the cities say they believe the gun companies are
using the negotiations to stall for time, hoping for a victory in the
courtroom.
But a gun industry executive said the firearms companies are talking in good
faith.
The negotiations were started by Eliot L. Spitzer, the attorney general of
New York, who had threatened to sue gun makers, and Robert Delfay, the
president of the National Shooting Sports Foundation, a trade organization
with ties to the National Rifle Association.
Speaking of the Chicago ruling, David Kairys, a professor at Temple
University Law School in Philadelphia and an adviser to many of the cities,
said, "This decision is very powerful and has a huge significance for the
city suits."
What is becoming clear, Professor Kairys said, "is that the courts are not
going to exempt the gun industry from the rules of civil responsibility that
apply to everyone the way legislatures have." Congress, he noted,
specifically excluded the gun industry from regulation by the Consumer
Product Safety Commission.
Owen Clements, chief of special litigation at the city attorney's office in
San Francisco, said, "This reads like a road map to victory for us."
Judge Duncan-Brice's decision is only one order in one case, Clements said.
"But it is certainly something we can cite to our judge in San Francisco, and
at some level it gives trial judges comfort to know that other judges are
deciding in the same way." San Francisco is one of the cities suing the gun
makers, gun wholesalers and retail gunshops.
Anne Kimball, a lawyer representing Sturm, Ruger & Company and the Smith &
Wesson Corporation, the two largest gun makers, said she believed the
companies would ultimately win the Chicago suit brought by the families of
the victims, including a police officer, Michael Ceriale, who was shot to
death in 1997 with a Smith & Wesson revolver. Smith & Wesson originally
shipped the weapon to a dealer in Houston in 1980, Ms. Kimball said.
"Holding a company liable for the legal manufacture and sale of a
nondefective product outside the state of Illinois two decades earlier
doesn't make any legal or public policy sense," she said.
The Chicago ruling is the first test of a theory developed by Professor
Kairys to get around the main defense of the firearms industry -- that it
makes a legal product, no matter how lethal it may be.
Professor Kairys, in studying the industry's practices, found that it
supplies large numbers of guns to stores in Southern towns with lax gun
control laws and to suburban shops around cities like Chicago and Detroit,
knowing that the guns will eventually find their way into the cities where
they are used by criminals.
Professor Kairys, in his theory, says this created a public nuisance, like a
form of industrial pollution, resulting in excess medical and police costs
for the cities.
Several other rulings have also gone against the gun industry.
In September, a California appeals court cleared the way for a trial in which
a gun maker, Navegar Inc., could be held liable for a killer's use of its
product in a mass shooting at a San Francisco law firm.
In October, a Georgia state judge allowed Atlanta's suit against the gun
industry to proceed.
But the gun companies won a victory in October when an Ohio state court judge
dismissed Cincinnati's suit, ruling that it was an improper attempt to use
the judiciary for a legislative purpose.
Last Thursday, a gun dealer in Valparaiso, Ind., agreed to stop selling
handguns and pay $10,000 to the city of Gary, Ind., in order to be dropped
from Gary's suit.
The deal was believed to be the first in which a dealer or other member of
the gun industry had paid money to settle one of the municipal suits, though
many of the cities said their goal was to reform the industry rather than to
seek large monetary damages.
------------------
"Quis custodiet ipsos custodes" RKBA!
New York Times
Judge Allows 3 Families to Sue Firearms Industry
By FOX BUTTERFIELD
A decision by an Illinois state judge last week to continue a private lawsuit
that accused the gun industry of knowingly creating an underground market in
handguns has encouraged 28 cities and counties suing the firearms companies
and may suggest that judges have become more receptive to innovative claims
against gun makers.
The decision, by Judge Jennifer Duncan-Brice of Cook County Circuit Court in
Chicago, was in a case brought by the families of three people killed by
handguns and not in a better known lawsuit by the city of Chicago.
But lawyers involved in the municipal lawsuits said the claims made by the
families -- that the firearms industry negligently distributed its products
and created a public nuisance -- are similar to cases brought by Chicago and
other cities and offer some indication of how judges may regard this new
approach to attempting to hold the gun companies responsible for urban
violence.
Judge Duncan-Brice denied a motion by the gun companies to dismiss the
lawsuit, saying individuals, not just a governmental entity, could bring a
claim that the firearms industry as a whole had created a public nuisance.
The judge also said it "is very clear to this court" that gun companies
knowingly violated Chicago's strict antihandgun laws by oversupplying
gunshops in the suburbs, where the laws are weaker, "creating an underground
market" in Chicago.
The decision is not a binding precedent in Illinois or other states, but it
is one of several recent rulings that may increase the pressure on the
firearms industry to negotiate a settlement after years in which the gun
companies won almost all suits against them, arguing that they could not be
held liable for damages caused by a legally manufactured product.
Officials from several of the gun companies and lawyers from San Francisco
and Los Angeles, among other cities, are scheduled to meet in Washington on
Tuesday as part of a newly formed committee to discuss what changes
manufacturers could make in the design and safety of their handguns as a way
to end the lawsuits, said people knowledgeable about the negotiations.
Another committee set up a month ago by the gun companies and cities to make
the firearms companies more accountable for the way guns are sold has yet to
meet.
Lawyers for several of the cities say they believe the gun companies are
using the negotiations to stall for time, hoping for a victory in the
courtroom.
But a gun industry executive said the firearms companies are talking in good
faith.
The negotiations were started by Eliot L. Spitzer, the attorney general of
New York, who had threatened to sue gun makers, and Robert Delfay, the
president of the National Shooting Sports Foundation, a trade organization
with ties to the National Rifle Association.
Speaking of the Chicago ruling, David Kairys, a professor at Temple
University Law School in Philadelphia and an adviser to many of the cities,
said, "This decision is very powerful and has a huge significance for the
city suits."
What is becoming clear, Professor Kairys said, "is that the courts are not
going to exempt the gun industry from the rules of civil responsibility that
apply to everyone the way legislatures have." Congress, he noted,
specifically excluded the gun industry from regulation by the Consumer
Product Safety Commission.
Owen Clements, chief of special litigation at the city attorney's office in
San Francisco, said, "This reads like a road map to victory for us."
Judge Duncan-Brice's decision is only one order in one case, Clements said.
"But it is certainly something we can cite to our judge in San Francisco, and
at some level it gives trial judges comfort to know that other judges are
deciding in the same way." San Francisco is one of the cities suing the gun
makers, gun wholesalers and retail gunshops.
Anne Kimball, a lawyer representing Sturm, Ruger & Company and the Smith &
Wesson Corporation, the two largest gun makers, said she believed the
companies would ultimately win the Chicago suit brought by the families of
the victims, including a police officer, Michael Ceriale, who was shot to
death in 1997 with a Smith & Wesson revolver. Smith & Wesson originally
shipped the weapon to a dealer in Houston in 1980, Ms. Kimball said.
"Holding a company liable for the legal manufacture and sale of a
nondefective product outside the state of Illinois two decades earlier
doesn't make any legal or public policy sense," she said.
The Chicago ruling is the first test of a theory developed by Professor
Kairys to get around the main defense of the firearms industry -- that it
makes a legal product, no matter how lethal it may be.
Professor Kairys, in studying the industry's practices, found that it
supplies large numbers of guns to stores in Southern towns with lax gun
control laws and to suburban shops around cities like Chicago and Detroit,
knowing that the guns will eventually find their way into the cities where
they are used by criminals.
Professor Kairys, in his theory, says this created a public nuisance, like a
form of industrial pollution, resulting in excess medical and police costs
for the cities.
Several other rulings have also gone against the gun industry.
In September, a California appeals court cleared the way for a trial in which
a gun maker, Navegar Inc., could be held liable for a killer's use of its
product in a mass shooting at a San Francisco law firm.
In October, a Georgia state judge allowed Atlanta's suit against the gun
industry to proceed.
But the gun companies won a victory in October when an Ohio state court judge
dismissed Cincinnati's suit, ruling that it was an improper attempt to use
the judiciary for a legislative purpose.
Last Thursday, a gun dealer in Valparaiso, Ind., agreed to stop selling
handguns and pay $10,000 to the city of Gary, Ind., in order to be dropped
from Gary's suit.
The deal was believed to be the first in which a dealer or other member of
the gun industry had paid money to settle one of the municipal suits, though
many of the cities said their goal was to reform the industry rather than to
seek large monetary damages.
------------------
"Quis custodiet ipsos custodes" RKBA!