Weapons & Tactics

In 1973 Arthur Robert McCray bought a new Smith & Wesson revolver from a Florida gun dealer. In 1984 Stephen Mashney bought the used revolver, and the following year he moved to northern California, where a burglar stole the gun from his home in July 1992. Two weeks later a 16-year-old used the revolver to murder David Johnstone, a New York book editor who was in San Francisco on business, shooting him in the back during an attempted robbery. In 1995 the victim's wife, Tina Johnstone, sued Smith & Wesson in the U.S. District Court for the Eastern District of New York, arguing that the company should have known something like this was bound to happen.

Johnstone blames not only Smith & Wesson but the entire handgun industry. Her suit–which is joined by 29 other plaintiffs, including Freddie Hamilton, the mother of a teenager killed in 1993–names 49 companies. Alleging a pattern of "negligent marketing" that leads to injury and death, Hamilton v. Accu-Tek seeks $54 million in damages. Ordinarily, an attempt to hold manufacturers responsible for the criminal misuse of their products would not get very far. But U.S. District Judge Jack B. Weinstein has refused to dismiss the suit, and hearings continued in late October.

While noting that the plaintiffs seemed "unsure of their substantive legal theory," Weinstein said "it may be argued" that "only the collective action of the handgun industry makes the individual shootings giving rise to this suit possible." He said the plaintiffs could claim "the market is so flooded with handguns sold without adequate concern over the channels of distribution and possession, that they become a generic hazard to the community as a whole because of the high probability that [the] weapons will fall into the hands of criminals or minors."

This approach is much more sweeping than the theories used in two other partially successful lawsuits against gun makers. The Maryland Court of Appeals, in a 1985 decision that was later overturned by legislation, ruled that makers of small, inexpensive handguns (a.k.a. "Saturday night specials") could be held liable when their products are used in crimes. In 1995 a California court ruled that the relatives of people killed in a shooting spree at a San Francisco law office in 1993 could sue the manufacturers of two "assault pistols" used in the attack. Both of these cases focused on particular kinds of handguns deemed especially suited to crime, whereas Hamilton covers all handguns. Paraphrasing Johnstone, Newsday reported that one aim of the suit "is to make the situation for gun manufacturers so expensive and intolerable that they either get out of the business or come begging for federal regulation."