Big-City Suits Lay Blame at Gun Industry’s Door

It’s open season on the handgun industry, the target of a new legal crusade by major cities that is revving up in the style of the immense assaults against tobacco and asbestos producers.

The gun litigation aims to achieve what has largely eluded politicians, regulators and law enforcement agencies: reducing the toll of gun violence that has terrorized U.S. cities by clamping tighter limits on firearm sales. Gun rights advocates charge that the real intent is to destroy the industry and disarm America.

Relying on new evidence and legal theories, the suits are advancing a claim that has been rejected in past gun cases: that firearms makers have a legal duty to curb the mayhem caused by their products, even if that means supervising their dealers and giving up sales.

After supplying gang-bangers and crooks, the industry “turns around to the rest of us . . . saying, ‘You need a gun to protect yourself from the guns we’ve sold to these other people who are a threat to you,’ ” argues David Kairys, a Temple University law professor involved in a suit filed by the city of Chicago.

The suits, if successful, could force gun makers to reimburse cities for law enforcement and other costs resulting from gun crimes and accidental shootings, a burden that could rise into the billions of dollars. So far, only Chicago and New Orleans have filed complaints, but officials of other cities, including Los Angeles, San Francisco and Miami, say they expect to follow suit.

Despite its novel features, the attack on the industry’s practices takes an age-old debate from the living room to the courtroom: Do guns kill people or do people kill people?

Although there have been recent declines in violent crime, the U.S. continues to have the highest rate of gun deaths in the industrialized world. More than 34,000 Americans were shot to death in 1996, and in California and a few other states, more people perish from gunfire than in auto accidents. The 1996 toll included nearly 14,000 murders, more than 1,100 accidental shootings and more than 1,300 teen suicides--at least some resulting from easy access to firearms, gun control advocates say.

For its part, the industry says that blaming it for gun violence is ridiculous. One gun rights group compared it to “suing the National Weather Service for the cost of storm damage.”

Meanwhile, the industry also is fighting private lawsuits, including a trailblazing case that began trial Monday in U.S. District Court in Brooklyn. The suit, known as Hamilton vs. Accu-Tek, accuses gun makers and distributors of flooding the market with more firearms than legal purchasers could possibly absorb--knowing that tens of thousands will flow to juveniles and crooks for use in gang killings and other crimes.

That contention is also central to the case filed in November by the city of Chicago, which alleges that gun dealers routinely sell firearms to traffickers and phony buyers who funnel them to the underground market. The suit seeks to require manufacturers and distributors to monitor their sales practices.

Another line of attack, embraced by New Orleans in its anti-gun suit filed in October, seeks to hold gun firms liable for failing to “idiot-proof” their guns to prevent them from being fired by unauthorized people, such as children or criminals who steal them.

The suit argues that gun makers, aware of the carnage caused by children playing with guns, have the know-how and ability to incorporate personalized or “smart” gun technology that would allow only a gun’s owner to fire it. Industry officials maintain that smart-gun technology has not been perfected and could hamper use of firearms for self-defense.

Close Parallels to Tobacco Fight

It’s no coincidence that the gun cases seem to be an echo of the tobacco litigation. Along with similar political objectives and legal strategies, they even share some of the same combatants.

Guns and tobacco share an important parallel: a history of protection from federal safety regulation. Both industries were exempted from the jurisdiction of the Consumer Product Safety Commission when Congress created the agency in the early 1970s. And that immunity is often cited as a reason that foes of each industry resort to the courts.

Just as the involvement of state attorneys general changed the balance of power in the tobacco litigation, so too is the cities’ involvement likely to add muscle and credibility to the gun litigation.

Moreover, cities can draw on the services of some of the same lawyers who were anti-tobacco pioneers. The consortium of law firms known as the Castano group, which filed a flurry of class-action suits against cigarette makers, has offered to serve as the hired gun for the cities. Castano lawyers already represent New Orleans and last month briefed other cities at a meeting of the U.S. Conference of Mayors.

In another echo of the tobacco wars, the gun litigation has produced its first whistle-blower--Robert I. Hass, a former senior vice president of Smith & Wesson who left the firm in 1989.

Firearms makers are “fully aware of the extent of the criminal misuse of firearms” but have refused “to take . . . independent action to ensure responsible distribution practices,” Hass said in a provocative affidavit in the Hamilton case.

Yet, there are important differences between the gun and tobacco battles. While claims that smokers assumed the risk have always served cigarette makers as a potent legal weapon, gun makers could not use that defense against victims of gun crime.

While incriminating internal documents left Big Tobacco wide open to cover-up claims, gun manufacturers cannot be accused of concealing the risks of their products.

And unlike tobacco companies, gun makers can argue that their products provide the social benefit of self-defense. A leading proponent of the argument, University of Chicago economics professor John R. Lott Jr., estimates that guns are used for defensive purposes more than 2 million times a year--mainly benefiting “women, the elderly and people that are poor who live in high-crime urban areas.”

The political circumstances of guns and tobacco differ widely too. The weak smokers’ rights movement has been all but invisible through much of the tobacco litigation, even though smokers will have to pay for legal settlements through higher cigarette prices.

By contrast, gun rights groups oppose restrictions on firearms with religious fervor, even threatening to boycott gun makers who may be tempted to compromise on regulation. Last month, the Second Amendment Foundation, a gun rights group, vowed to sue Chicago, New Orleans and any other cities that file anti-gun suits, arguing that such suits could make firearms less available or affordable.

Another crucial difference: Gun suits will not bring a huge payday like the nearly $206 billion that tobacco companies will pay to settle lawsuits by state attorneys general.

Compared with tobacco’s torrential cash flows, revenues for most gun makers are a trickle, with many having annual sales of a few million dollars at most. The giants of the trade, Sturm, Ruger & Co. and Smith & Wesson, each sell about $140 million worth of firearms per year--the equivalent of less than two days of cigarette sales by Philip Morris or five days for R.J. Reynolds.

But plaintiffs see gun makers’ financial vulnerability working in their favor.

“There’s no question that this industry is not populated by the kind of deep pockets that have been funding the tobacco industry’s resistance to lawsuits for years,” said Dennis A. Henigan of the Center to Prevent Handgun Violence, co-counsel in the New Orleans suit. “It is one of the reasons we are hopeful that litigation will bring about substantial reform of the way this industry does business.”

While contending that the suits are groundless, industry officials acknowledge that some of their members may be unable to withstand a costly legal siege.

“I don’t think . . . this industry has the financial staying power to fight 60 or 70 lawsuits,” said Bob Ricker, director of government affairs for the American Shooting Sports Council, an industry trade group.

Although gun makers have paid settlements or judgments in cases of accidental shootings resulting from design or manufacturing defects, they have never lost a case involving misuse of guns by criminals. It is that barrier they mean to keep intact.

James P. Dorr, a Chicago lawyer for Colt’s Manufacturing Co. and two other gun firms, said arguments being advanced are mere “variations on theories that have already been rejected by the courts over the past 15 years.”

“When the dust clears, you’re going to find that these [cases] don’t go anywhere,” remarked Stephen L. Sanetti, general counsel of Sturm Ruger. “It’s been uniformly held all across the country that a person doesn’t have the right to recover from the manufacturer” of a firearm “just because a criminal misused it.”

But plaintiffs note that skepticism and even derision greeted the first anti-tobacco suits by attorneys general, which triggered a mass movement that forced cigarette makers to the bargaining table.

Each city’s case will be customized, employing the legal theories that give the best chance of success under local or state laws. Chicago, for example, has a strict ordinance that makes it illegal to possess or use handguns, and has accused gun makers of consciously undermining the law by oversupplying suburban gun stores--knowing the weapons are destined for the city.

In announcing the suit, which also names a number of gun shops, city officials unveiled “Operation Gunsmoke,” in which undercover police posing as street thugs allegedly bought scores of firearms in suburban stores--despite intimating that they were heading back to Chicago to “take care of business” on the street.

Similar claims of negligent marketing are the focus of the Hamilton trial that began this week in Brooklyn. The 4-year-old case, brought on behalf of families of nine shooting victims, was filed by solo practitioner Elisa Barnes, whose efforts recently were bolstered by a $300,000 grant from a foundation headed by financier George Soros.

Barnes said she filed the case to attack “a hideous urban problem.”

Along with the Hass affidavit, evidence marshaled by Barnes includes an expert-witness report rebutting the industry’s long-standing claim that crime guns usually were stolen from legal owners.

In reality, the report says, tens of thousands of guns flow more or less immediately into the underground market as a result of dealers selling to traffickers and unlicensed buyers with no questions asked.

According to the report by National Economic Research Associates, firearm sales in states with weak gun laws are far higher “than can be explained by legitimate demand,” suggesting those guns are being trafficked to strong-law states.

“A very large proportion of all handguns sold” wind up being used in crime, according to the report. More than 760,000 guns, or nearly 20% of the total sold in 1993, were used in crimes before the end of 1997, the report estimates.

Industry lawyers will argue that illegal trafficking should be attacked by law enforcement and that manufacturers who legally make and sell firearms have no legal duty to control who gets them.

A related series, “Outgunned: The Holes in America’s Assault Weapons Laws,” is available on The Times’ Web site at https://www.latimes.com