When Jurors Legislate

"It was never about money," said Diane Zaretsky, one of the plaintiffs in Hamilton v. Accu-Tek, the case in which a Brooklyn jury recently found gun manufacturers guilty of "negligent distribution."

Zaretsky, whose husband was fatally shot during a robbery attempt in Queens five years ago, was probably anticipating the argument that the verdict was not much of a victory, since the jury saw fit to award only modest damages. Still, her remark is revealing.

Like any tort action, this lawsuit was ostensibly aimed at winning financial compensation for people who were wrongfully injured. Such an exercise is very much about money.

But restitution was not the main goal of Hamilton v. Accu-Tek. Like the lawsuits using similar theories that have been filed by Chicago and other cities, it was aimed at achieving policy changes, such as the elimination of part-time dealers and serial purchases, that gun control supporters have failed to win through the democratic process.

In effect, the jurors were asked to substitute their judgment about how the firearms trade should be regulated for that of legislators. Supporters of such litigation hope the threat of catastrophic damages will force gun makers to accept restrictions, either as a defense strategy or as part of a settlement similar to the tobacco industry's deal with the states.

"This is fundamentally going to change the way gun manufacturers do business," Josh Horwitz, executive director of the Educational Fund to End Handgun Violence, said after the verdict. "This is what we've been waiting for…a way to say to manufacturers that you do have a responsibility after the gun leaves your plant."

As that comment suggests, the premise of the case was that makers of firearms should be liable for the harm caused by gun-wielding criminals. The plaintiffs, relatives of people who were killed or injured with handguns, charged that manufacurers "oversupply" firearms to states with few gun restrictions, knowing that some of the weapons will end up on the streets of New York.

This alleged pattern of negligence was said to justify collective industry responsibility for gun violence, based on market share. In other words, the plaintiffs wanted to win damages without showing that the defendants' products had anything to do with the shootings that were the pretext for the lawsuit.

"We can't know and it doesn't matter whose gun it was," said Denise Dunleavy, one of the plaintiffs' attorneys, in her opening statement. "A gun is a gun, and it was the responsibility of the manufacturers to keep their products out of our hometown."

Whether the jury actually bought this audacious theory is open to question. The jurors deliberated for six days, repeatedly sending notes to U.S. District Judge Jack B. Weinstein saying they were deadlocked. Again and again, the judge insisted that they continue to argue with each other.

"Some liked guns and some didn't," one juror later told The New York Times. "That's why it took so long."

A juror's personal feelings about firearms, of course, have no bearing on whether the law permits the relative of a shooting victim to recover damages from a gun maker. But it was only by appealing to such prejudices that the plaintiffs could hope to prevail.

In a verdict described as "strange" and "confusing," the jurors ultimately found that 15 of the 25 manufacturers had been negligent but only nine of them had contributed to any of the shootings. They decided that the defendants' "negligent distribution" had been a "proximate cause" in three of the shootings but not the other four. And they awarded damages–$560,000, a pittance by the standards of modern litigation–for only one of the shootings.

Since none of the companies was charged with making any of the guns used in the crimes, it's a mystery how the jury decided that some of them were more closely tied to the shootings than the others. The bizarre mix of findings–negligence without liability, liability without damages–suggests that the jurors tried to split the difference between irreconcilable positions.

Even if this incoherent verdict is overturned, it is likely to encourage more lawsuits by cities and individuals, which will mean more policy making through litigation rather than legislation. We may not always be pleased by the performance of our elected representatives, but transferring their powers to anonymous people arguing behind closed doors is surely no improvement.