It took a little legal inspiration, but thanks to the tobacco wars another unpopular industry is finding itself fixed in the cross hairs of politicians ravenous for revenue and publicity. The next group of manufacturers attempting to dodge the bullet of predatory civil litigation is the nation's firearms industry. Companies such as Smith & Wesson, Glock, Colt, and Beretta are bracing for a legal fusillade sure to be directed their way. The first round is likely to fired from Philadelphia, the very place where the Second Amendment was drafted.
This spring, Philadelphia Mayor Ed Rendell announced that he is "seriously" considering bringing suit against handgun manufacturers as a way to counter the gun-related violence he says is ravaging his city. And the level of violence is startling. Eighty-two percent of Philadelphia's 410 murders last year were committed with firearms. Gun homicides increased by 102 percent between 1985 and 1995.
"The magnitude of the crisis in Philadelphia is that gun violence is plain and simple out of control," Rendell told the April meeting in Washington, D.C., of the American Shooting Sports Council, the major trade organization for most of the nation's gun manufacturers. "We will do anything, we will try anything, to reduce the carnage which is tearing the heart and soul out of Philadelphia."
When Rendell talks like that, people take notice. Well-known for his ability to get things done quickly, he inherited a fiscal and political mess when he took office in 1992. When Philadelphia's immensely powerful municipal workers walked out on the new mayor, he did more than hang tough. He won pay cuts, vacation reductions, and changes in work rules--and immense popular support from voters that continues to this day.
In true anything-goes fashion, Rendell, a former city prosecutor, thinks a lawsuit seeking damages for the costs the city incurs due to gun violence may be the answer. From overtime for police and paramedics to the money needed to hose blood from crime scenes, Rendell estimates gun violence costs his government $58.8 million each year. And he figures that if the states can pick the pockets of cigarette barons for health costs linked to tobacco use, he should be able to do the same to the makers of the guns most often used in Philadelphia crimes. Rendell plans to make his decision sometime after Labor Day.
The complicated legal strategy is still being developed by the mayor's team. Rendell and his staff have yet to work out answers to a number of basic questions: whether to file in state or federal court, how much money it would cost taxpayers, and how good the chances of winning are.
One of Rendell's top aides admits the legal theories behind the proposed suit are quite novel. "We have to consider a number of factors, like negligence, strict liability, and public nuisance," says mayoral spokesman Kevin Feeley, who insists, "This is not a grandstand play or an attempt to get a headline."
Good intentions aside, the headlines piled up in February when Rendell first started publicly rattling the cages about a suit. But the generally favorable press response glossed over a central consideration: Rendell will have an extremely difficult time winning. Affixing liability to manufacturers for gun-related violence has so far proven to be a nonstarter. While gun makers often are sued by victims or relatives of victims of gun-related violence, no such suit against manufacturers has ever succeeded. (Some gun makers have been held liable when weapons have caused deaths or injuries because they misfired or were otherwise defective.)
In March, a New York jury determined that S.W. Daniel, a Tennessee-based gun company, was not liable for the notorious 1994 murder of rabbinical student Ari Halberstam. Halberstam was riding in a van across the Brooklyn Bridge when a car pulled alongside. Rashid Baz opened fire indiscriminately from the car with a gun containing parts from S.W. Daniel, killing Halberstam. As one juror was quoted in The New York Post, "We're not happy with the fact that these gun companies exist, [but] they didn't pull the trigger." The clear message sent by this jury and others about where responsibility for gun violence lies poses the toughest challenge for a suit against gun makers.
"The problem [such private suits] have had has been getting over the proximate causation hurdle," explains Feeley, Rendell's aide. "When these things happen, there is the matter of some person pulling the trigger. You've heard the expression that guns don't kill people. The proximate causation hurdle is something we have to deal with, too." The height of that hurdle may explain why only one other big-city mayor, Miami-Dade's Alex Penelas, is even known to be considering a similar lawsuit.
Rendell's staff thought it might anchor its lawsuit to the idea that guns constitute a "public nuisance." That approach, however, was dealt a severe blow in March, when the family of a murdered Chicago policeman suing under that theory lost its case against a gun maker.
Still, outrageous and illogical jury decisions certainly are not unheard of in cases where emotions run high. For that reason--and despite the dismal track record of litigation against gun manufacturers--all bets are off if Rendell gives his city the go-ahead to proceed with the lawsuit. In civil litigation, a lot of passion can make up for a deficiency of merit.
Rendell is nothing if not passionate when it comes to the issue of gun violence and the rivers of blood flowing down his city's streets. "I don't want to be a hero," he told the ASSC meeting, pleading that he really doesn't want to sue, but he might have to in order "to protect the people of Philadelphia."
No fewer than four times during his talk with gun manufacturers did Rendell invoke "the heart and soul" of himself or his city, inviting them to "feel our pain." "Believ[ing] with every ounce of feeling I have that there are far too many guns," Rendell relentlessly attacked "rogue companies" which "market to criminals and people in cities."
Rendell manages to maintain a tough-on-crime image while pushing liberal feel-good buttons: He's for the death penalty and mandatory minimum sentences yet quick to blame gun violence on "society" at large. Judging from his performance at the ASSC gathering, the results range from predictable to strange. He's fond of invoking children: "In Philadelphia kids are killing kids at a higher rate" than ever before, he claimed, while noting that his recreation department will launch an "I Can End Violence" campaign this summer that is designed "to tell kids, `You are shooting at the mirror image of yourself....It's basically you, just a different name.'" But he also called for tax dollars to go to gun makers. "Government," he said, "ought to aid you in providing for research and development of personal firearms" that can be fired only by the owner.