Nuisance Suits


A few years ago, when states started demanding that tobacco companies reimburse them for the cost of treating smoking-related illnesses under Medicaid, I put together an alphabetical list of 54 products whose manufacturers could be sued on similar grounds. "Guns" were the 22nd item, after "gasoline cans" and before "hair dryers."

Apparently the trial lawyers got ahold of my list, and they're skipping to the G's. Just as the states were wrapping up their tobacco cases with a $206 billion settlement, two big cities filed suit against gun manufacturers, assisted by some of the same attorneys who went after the cigarette makers.

New Orleans, which announced its lawsuit on October 30, is seeking compensation for "millions of dollars" in costs related to gun violence, including lost income tax revenue as well as police and medical expenses. It argues that handguns are "unreasonably dangerous" because they are not equipped with devices that prevent unauthorized people from using them.

Industry representatives complain that they stand accused of failing to use devices that have not been invented yet, and they are not the only ones who consider the argument flaky. Kristen Rand, policy director of the anti-gun Violence Policy Center, told The Baltimore Sun that "smart gun" technology "is so speculative that it doesn't make any sense to say the gun industry should have installed it."

A Chicago lawyer who has sued gun makers took a similar view. "Product-liability claims don't work," he told the Sun, "because guns work as intended: They shoot things."

Gun-control advocates believe that Chicago, which filed its $433 million suit on November 12, has a more promising approach. It argues that, by supplying suburban gun dealers with more firearms than are needed for legitimate purposes, manufacturers are creating a "public nuisance."

The suit says the companies "saturate the market [with firearms], knowing that persons will illegally bring them into" Chicago, where handguns are banned. As Mayor Richard M. Daley put it, "They knowingly market and distribute their deadly weapons to criminals in Chicago and refuse to impose the most basic controls."

That sounds damning, until you realize that the same theory could be applied to many other industries. Surely companies that make knives, baseball bats, and tire irons realize that some of their customers will use these products for nefarious purposes. Similarly, car makers knowingly supply the means by which bank robbers make their escapes and drunk drivers kill innocent pedestrians.

It is no secret that many people jeopardize their own health by drinking or eating too much. Despite this, the alcohol and food industries continue to "saturate the market" with their products, which predictably leads to disease, disability, and death.

It may not matter that the reasoning underlying these lawsuits is shaky. The legal theories that 43 states used to sue the tobacco companies were described as "novel" and "untested," euphemisms for "half-baked." Yet the states managed to bully cigarette makers into the biggest liability settlement in history.

Facing an unprecedented legal assault, including class actions and hundreds of individual claims in addition to the state lawsuits, the tobacco companies decided it was cheaper to settle than continue fighting. Even if they ultimately prevailed in every case, the legal expenses would be enormous, and the possibility of a huge damage award would continue to depress their stock prices.

The gun industry, which includes many small, privately owned firms, is not likely to show more fortitude than the tobacco industry if, as expected, the New Orleans and Chicago suits start a flood of litigation by cities around the country. "Even if we win the suits, the expense of fighting means we lose," a spokesman for the American Shooting Sports Council told the Sun. "This could very well mean the end of the domestic handgun industry in this country."

No doubt that's a prospect that would delight the anti-gun activists who are backing these lawsuits. Like tobacco's opponents, they are trying to achieve through litigation what they have been unable to achieve through legislation.

This sneaky approach circumvents constitutional limits as well as democratic debate: the First Amendment in the case of the tobacco deal, which restricts advertising and lobbying; the Second Amendment in the case of the gun lawsuits, which threaten to make firearms more expensive and harder to obtain. Thus the courts, which should be a bullwark against tyranny, have instead become its instrument.