Courtroom Shootout

With the smoke of the tobacco industry's settlement with the states still hanging in the air, city governments are turning their attention toward the handgun industry. Chicago and New Orleans have filed civil suits against groups of gun makers, distributors, and sellers; other cities, including New York, Philadelphia, Los Angeles, Tampa, and Boston, are contemplating joining the posse. The cities argue that gun makers and sellers must pay at least some of the costs that municipalities bear while treating victims of gun violence. (See "Smoking Guns," July.)

Chicago has strict gun control, and the city argues that gun makers and dealers are creating a public nuisance by supplying the areas outside the city with more handguns than they need, thus guaranteeing that the excess will end up in Chicago. Charging that legal gun manufacturing and sales constitute a public nuisance is a novel legal strategy–and one whose chances of success seem low. Generally, attempts to characterize legal, regulated businesses as nuisances have failed in court.

The New Orleans suit also pursues a novel strategy. It argues that a lack of safety features–such as a mechanism that would ensure only specific users can fire a gun–means that gun manufacturers and vendors should be liable for mayhem involving their products.

"This lawsuit is a turning point in our efforts to force the gun industry to make a safer, childproof, `personalized' product," a spokesman for the Center to Prevent Handgun Violence, which is serving as New Orleans' co-counsel, told the press. New Orleans is suing over 20 gun makers, trade associations, and dealers.

Such arguments have not prevailed in private actions. In November, for example, a California jury dismissed Dix v. Beretta, in which the plaintiff argued that a 14-year-old boy would not have been shot and killed had the pistol been equipped so that only an "authorized" user could have fired it.

But legal precedents may prove irrelevant, particularly in the New Orleans case, cautions Jon Vernick, associate director of the Center for Gun Policy and Research at the Johns Hopkins School of Public Health. He notes that while gun manufacturers typically win strict liability cases, suits like Dix v. Beretta and the New Orleans filing make a subtly different argument about design defects: These suits say that the weapons could–and should–have been made safer than they are. While one California jury found that argument less than persuasive, it's impossible to predict the fate of the New Orleans case, Vernick says.

The gun industry says it's armed and ready for long legal battles. That's partly because it has no other option, says Bob Ricker of the American Sports Shooting Council, a gun industry trade organization and a defendant in the New Orleans suit. Unlike the tobacco companies, explains Ricker, gun makers lack the deep pockets to finance a settlement that might satisfy the dozens of city governments that could come after them.