Guns in the Courtroom

Guns in the Courtroom

In the late summer and fall of 1997, small news leaks began appearing that Mayor Edward Rendell of Philadelphia (who is now governor of Pennsylvania) was thinking about suing the firearms indus


In the late summer and fall of 1997, small news leaks began appearing that Mayor Edward Rendell of Philadelphia (who is now governor of Pennsylvania) was thinking about suing the firearms industry to recover the medical costs of treating gunshot victims, much as state attorneys general had sued tobacco manufacturers. “Rendell is quietly laying the groundwork for a lawsuit against gun manufacturers,” read the first report, bringing a small smile to lips of readers who realized that tipping off the press is not quite consistent with doing something quietly. The leaks provided little information but provoked a great deal of talk. What was actually going on within Rendell’s inner circle, however, was shrouded in secrecy.

Then, on January 9, 1998, the Philadelphia Inquirer reported that Rendell’s lawyers were ready to file. The article identified Temple University law school professor David Kairys and David Cohen, a partner in a leading Philadelphia law firm and one of Rendell’s closest confidants, as the principal lawyers. “Kairys declined to discuss the lawsuit,” the paper reported, although Kairys did talk to the paper about the legal theory of public nuisance on which, the Inquirer said, the lawsuit was to be based.

The Rendell administration never filed that lawsuit. It is my own somewhat educated guess that the leaks had come from Professor Kairys, who was fighting a losing battle with Cohen to persuade Rendell to go ahead with the litigation. Perhaps Cohen thought the lawsuit was technically weak. Or perhaps he thought it a politically foolish endeavor for a politician with statewide ambitions. Nearly 250 rural miles separate Philadelphia and Pittsburgh, and nearly 165,000 voting NRA members live in Pennsylvania. In any event, there was no suit. Rendell decided instead to try to reach a deal–never ultimately brought to fruition–in which Philadelphia would not file suit in return for the gun industry’s agreeing to certain reforms and the NRA’s lobbying Congress to fund a special project of aggressive federal prosecutions of gun crimes in Philadelphia.

But others seized upon the idea. Something of a race began among the nation’s mayors to see who would take the lead in this movement, as Mississippi’s Attorney General Michael Moore had in the tobacco litigation. New Orleans’s charismatic mayor, Marc Morial, won the race to the courthouse. The authors of Outgunned: Up Against the NRA–The First Complete Insider Account of the Battle Over Gun Control tell us that when, in October 1998, Rendell learned New Orleans was about to file an action against handgun manufacturers, their trade associations and pawn shops selling guns used in crimes in New Orleans, he telephoned Mayor Morial. “This is my deal!” he allegedly screamed. “So back off and let me proceed. I’m damned close to reaching a settlement with the gun companies.”

Morial was unmoved. On October 30, New Orleans filed its action against fifteen handgun manufacturers, their trade associations and New Orleans pawn shops that were selling handguns. On November 12 Chicago filed its own lawsuit. Miami and Bridgeport, Connecticut, which were represented by the same lawyers, filed separate actions in their home states on January 27, 1999; Cleveland filed on April 9; and consolidated actions were filed by Detroit and Wayne County, Michigan, on April 26.

In the midst of this burst of legal activity, on April 20, 1999, two students, armed with a TEC DC-9 semiautomatic assault pistol and a small arsenal of other weapons, entered Columbine High School in Littleton, Colorado, and killed a teacher and twelve students and wounded more than thirty in a span of just minutes. The nation was stunned, and many thought the municipal lawsuits would benefit from a tidal wave of revulsion against the gun violence. Ultimately, thirty-five municipalities–including Boston, Cincinnati, Los Angeles, New York City, Philadelphia (which filed after a new mayor replaced Rendell), San Francisco, St. Louis and Washington, DC, plus New York State–filed a total of twenty-four lawsuits against gun manufacturers and dealers.

The actions by Chicago and Detroit/Wayne County, Michigan, were based on especially interesting investigations. In Detroit and Wayne County, two undercover officers visited random retailers and gun-show dealers. In each case, one officer posed as someone who was ineligible to purchase a gun, such as a convicted felon or a minor, and the second officer posed as a “straw purchaser,” that is, someone who as a matter of mere formality was willing to list himself as the purchaser on the federal form. In ten instances, the officers surreptitiously filmed the transactions. In nine of these, the dealer sold the gun, even though he knew the real purchaser could not lawfully own a handgun. At the Sports Authority in Dearborn, the salesman explained that a straw purchase was “highly illegal,” but he made the sale anyway. “You want to tell me you are buying the gun and you want to lie on the sheet, I don’t care,” another dealer said. “This question here says, ‘Are you buying the gun for yourself?’ All of us know you are not.” When I saw the film several years ago, it knocked my socks off.

Chicago investigators conducted a more extensive investigation. Handguns are illegal in Chicago, yet the city suffers great gun violence. In 1997, 570 people were shot to death there, including fifty kids no older than 16. Generally there are more than three times as many firearms injuries as deaths, and although Chicago’s complaint does not include the figure, it is reasonable to estimate that more than 1,700 other Chicagoans were injured by gun violence that year. In addition, 8,866 were robbed at gunpoint.

The guns used in these crimes are, obviously, imported from out of town. Undercover Chicago detectives, also working in pairs and posing as a wide range of characters who should not have guns, visited gun dealers in adjacent suburbs. According to Chicago’s complaint, at B and H Sports an officer told the dealer he wanted two 9-millimeter handguns to deal with a gang member who “ratted me out.” He asked for a matched pair to look impressive “when I draw down on” the guy he was after. The dealer asked what he did for a living. “I hang out on the streets,” he replied, gesturing to the jacket he wore that identified him as a member of a street gang. Because he did not have proper identification, his companion served as a straw purchaser. “If you wait four days to pick up the guns, the Feds won’t be out to investigate you,” the helpful clerk suggested. At Bell’s Gun & Sport Shop, an undercover officer posing as a customer without identification handed $600 in cash to his partner, who in turn immediately handed it over to the clerk. In transactions such as these, Chicago officers purchased 171 guns.

It is easy to understand why the cities sued the gun dealers, but what was the theory against the manufacturers? Making use of recent innovations in gathering and analyzing data about the gun distribution system, Chicago and Detroit/Wayne County argued that the manufacturers were selling their guns to dealers that the manufacturers knew were routinely selling guns to criminals.

The conventional wisdom used to be that criminals acquire most of their guns by stealing them. But one of the most interesting recent discoveries in this area has been that criminals seem to buy most of their guns. Moreover, there appears to be a small collection of dealers who knowingly cater to the criminal trade. We have learned, for example, that less than 1 percent of the nation’s gun dealers sell the majority of guns that are ultimately used in crimes.

What we now know, how we learned it and why we didn’t learn it earlier requires a little background. Serial numbers are carved into guns, which makes it possible to keep records that track them from manufacturer to distributor to dealer to purchaser. The NRA, however, has always opposed any consolidated system of recording gun sales by serial number, arguing that it would lead to the evil of gun registration. Why is gun registration evil if motor vehicle registration is not? The NRA argues that if the government knew who owned what guns, when some future Hitler came to power in the United States he would use these records to seize all the guns and prevent the citizens from overthrowing the yoke of tyranny. At the NRA’s behest, Congress enacted legislation prohibiting the federal Bureau of Alcohol, Tobacco and Firearms (ATF) from requiring gun sellers–manufacturers, distributors or retailers–to report all gun sales and matching guns and purchasers.

Congress, however, did not prohibit ATF from tracing guns that have been used in crimes. Traditionally, ATF used gun traces only to solve crimes. When a gun was found at a crime scene and the identity of the perpetrator was not known, ATF initiated a trace request with the manufacturer, and tried to track the gun through the distribution system to the ultimate purchaser. ATF used to initiate about 40,000 of these gun traces annually. In an effort to discover how so many juveniles came into possession of guns, the Clinton Administration instructed ATF to expand the program and trace the sale histories of all guns used in crimes in the nation’s largest cities, regardless of whether it was necessary to solve a crime. Under this program, gun traces increased to about 200,000 per year, and we learned that a tiny fraction of dealers are selling most of the guns ultimately used in crimes.

There is debate about what this means. Some argue that it means nothing more than that some dealers sell many more guns than others. However, other information suggests that there are particularly irresponsible dealers, and distributors who serve them. And because ATF trace requests start with the manufacturers, the manufacturers know exactly who these bad distributors and dealers are.

Chicago’s undercover investigation showed, in dramatic detail, how these sales were made. For example, Chicago undercover detectives visited one store–Chuck’s Gun Shop and Pistol Range in the Chicago suburb of Riverdale, Illinois–seventeen times. They got to know the clerks so well the clerks came to greet them by their first names. Although the detectives told the clerk they lived in Chicago, over the course of these visits Chuck’s sold them a small arsenal of semiautomatic pistols, assault rifles and large-capacity magazines, some of which were banned by federal law. The clerks helpfully told the undercover investigators how to structure the transactions to avoid ATF attention.

Chicago combined the undercover investigation with what it learned about Chuck’s sales to real criminals. For example, Chicago alleged that between August 1997 and July 1998, Ezra Evans purchased thirteen guns from Chuck’s. Evans purchased these guns for members of the Gangster Disciples street gang, which controlled narcotics traffic within particular turfs. A 16-year-old member of the Gangster Disciples used one of those guns to kill a Chicago police officer. Chicago’s evidence about specific transactions–involving both criminals and undercover officers posing as criminals–dovetails with ATF tracing data, which show that from 1996 to 1998 Chuck’s Gun Shop sold 1,176 traced crime guns. This, incidentally, gave Chuck’s the distinction of being the second-largest seller of traced guns nationally.

Chicago’s legal theory was based on the doctrine of public nuisance. One accepted definition of this is that a “public nuisance is an unreasonable interference with a right common to the general public,” including “significant interference with the public health, the public safety, the public peace, the public comfort or public convenience.” Chicago argued that in an effort to control gun violence it had enacted strict gun-control regulations, which work as long as residents cannot purchase guns elsewhere. The gun manufacturers and dealers were frustrating its regulation efforts by flooding the adjacent suburbs with far more guns than the suburban demographics support, knowing that many of these guns were being illegally imported into the city. Their conduct created a public nuisance by making Chicago a far more dangerous, and more fearful, place. Two other theories–negligence and products liability–featured prominently in some of the other municipal lawsuits. A lot of the “inside baseball” discussion among lawyers, judges and legal academics is focused on which of these three theories is strongest in this litigation. But in fact, they are all quite similar.

One succinct definition of negligence is departing “from a standard of conduct demanded by the community for the protection of others against unreasonable risk.” A dealer is negligent when he sells a gun to someone he knows is irresponsible or, worse, likely to use it in a crime. That someone is negligent by giving something to someone who should not be entrusted with it–a bartender selling drinks to an intoxicated patron whom she knows will drive home, parents handing car keys to their unlicensed child, someone selling explosives to an obviously deranged individual–is so accepted that it has its own label, “negligent entrustment.” A manufacturer who sells guns to a dealer whom it knows to be irresponsible is of the very same nature as the dealer who sells guns to a customer it knows to be irresponsible; both actions place others at unreasonable risk. When the behavior is continuous and systemic–that is, when one is putting large quantities of guns into irresponsible hands–categorizing it as either negligence or public nuisance is a distinction without a difference.

Products liability is somewhat more complex, and the contours of the doctrine are currently the subject of strong debate, but at the risk of oversimplifying a smidgen, here is a succinct description. Products liability is a strict-liability regime, which means liability does not depend on fault. It does not matter whether the seller was careful or careless; as it is often put, the focus is on the product rather than the seller’s conduct. Liability hinges on whether the product was unreasonably dangerous, not whether the manufacturer’s conduct was unreasonable.

A product is deemed unreasonably dangerous if the risk it imposes on society at large exceeds its utility. It is important to stress that dangerous products are not subject to liability, only products deemed to be unreasonably dangerous. Cars and knives are both dangerous, but their social utility is so great that no one could successfully argue they are unreasonably dangerous. Certain cars, such as the infamous Pinto, and certain knives, such as switchblades, are candidates for products liability, but not cars or knives generically.

There is a raging debate in the courts and law schools about whether products liability law should be applied generically to an entire product category. The municipalities that relied on products liability theory, therefore, did not argue that all handguns should be subject to strict liability. New Orleans, for example, argued that the defendants’ handguns were unreasonably dangerous because they lacked certain safety devices, specifically, load indicators to show that a round remains in the chamber (the gun is still loaded) even if one has removed the magazine, and “smart-gun technology” to prevent the gun from being fired by anyone other than its authorized user. Manufacturers argue that meaningful smart-gun technology–which would recognize someone’s handprint, for example–does not exist, while the devices that do exist–like a gun with a radio receiver that will not fire unless it is in close proximity to someone wearing a special broadcast device on a wristband–are merely glorified gun locks. Some municipalities focused their products liability claims on the small, cheap handguns known as Saturday Night Specials.

Reasonable minds disagree about this, but in my judgment there is an inherent flaw in arguing that only certain handguns–Saturday Night Specials, or those without certain safety devices– are unreasonably dangerous. Most handguns used in crime are not Saturday Night Specials but relatively expensive, high-quality weapons from mainline manufacturers like Smith & Wesson, Colt, Ruger and Mossberg. And while gun-safety devices may reduce accidents or the use of stolen guns, these are fleas on the elephant’s back; most shootings are intentional. The raison d’être of guns is their capacity to kill. The additional characteristic of handguns is that they may easily be carried or kept handy in night-stand drawers or automobile glove compartments. The concept of a safe handgun is an oxymoron.

In fact, all handguns fail a risk-utility test. The utility of handguns is almost exclusively about self-defense (long guns are used far more by hunters and sportsmen). In 2001 there were 6,790 handgun murders but only 136 “justifiable homicides” by civilians using handguns for self-defense. By this measure alone, the social costs of handguns outweigh their benefits by a factor of 50 to 1. This is not much different from saying that distributing handguns to the public at large (rather than to just the police and the military) creates a public nuisance or constitutes negligence because it imposes unreasonable risks on others.

The NRA struck back against the municipal lawsuits by lobbying state governments for “pre-emption” statutes prohibiting local governments from suing the gun industry. A number of states passed such laws, extinguishing the lawsuits by Atlanta, Philadelphia and New Orleans, and preventing the filing of additional lawsuits in several states. Boston voluntarily withdrew its lawsuit because it found the litigation too expensive.

Courts have finally dismissed two actions–those by Bridgeport, Connecticut, and Camden County, New Jersey–on the merits, holding that plaintiffs had not shown that manufacturers have control over dealers or that the injuries were “too remote, indirect, or derivative.” By contrast, the Ohio Supreme Court held that “it is not fatal to [Cincinnati’s] public nuisance claim that appellees did not control the actual firearms at the moment the harm occurred…. Just as the individuals who fire the guns are held accountable for the injuries sustained, appellees can be held liable for creating the alleged nuisance.”

As of this writing, sixteen of the twenty-four municipal lawsuits remain pending. Detroit/Wayne County’s lawsuit is stalled, waiting for the Michigan courts to determine whether the state’s pre-emption statute, which was designed to extinguish the action but was enacted after the case was filed, can constitutionally be applied retroactively. An Illinois appellate court found Chicago’s action to be theoretically sound, but that decision is on appeal to the state Supreme Court. No case has yet reached trial.

It will not be lost on the reader that this is an unusual review, for the book has only been mentioned once. That is because this is an unusual book. The co-authors of Outgunned are Peter Harry Brown, who has written biographies of Elvis Presley, Kim Novak and Marilyn Monroe, and Daniel G. Abel, one of the lawyers for New Orleans in its lawsuit. What they have produced is a remarkably sloppy, muddled and disjointed hodgepodge of narratives about not only the municipal lawsuits but just about anything related to guns that occurred between October 11, 1998, when a gospel singer was shot to death in New Orleans, and December 15, 2001, the date of the funeral for Wendell Gauthier, the lead attorney on the New Orleans case and Abel’s partner. Only small portions of the book concern the municipal lawsuits, which are billed as the subject of the book, and much of what is in this review does not appear in the book.

On more than one occasion, the authors mention someone either just by first or last name whom I had not remembered, causing me to flip back through the pages in a futile search to find what I missed. Then I would move on and find the person introduced pages later. In this and myriad other ways, the authors turned the cut-and-paste function on their word processors into tools of torture.

The municipal lawsuits against the gun industry are important, as a matter of both legal and political history. It is a powerful normative statement when so many of the nation’s largest cities, and New York State, institute this kind of litigation. Never again can anyone call such a notion radical or extreme. The subject deserves a good book. But this is not it.

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