Shot Down

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Yesterday U.S. District Judge Jack B. Weinstein threw out a lawsuit in which the National Association for the Advancement of Colored People sought to hold the gun industry responsible for violent crime. Given Weinstein's antipathy toward the industry and his affinity for judicial activism, the decision was a surprise.

In May an advisory jury rejected the NAACP's claims against 45 manufacturers and distributors; it reached no conclusion about the liability of 23 others. Weinstein's decision is less favorable to the industry, which he criticized for failing to take precautions that could have prevented criminals from obtaining weapons. Indeed, Weinstein accepted the NAACP's contention that the gun industry had created a "public nuisance" by making firearms too readily available.

At the same time, Weinstein concluded that the organization was not an appropriate plaintiff because "it failed to show that its harm was different in kind from that suffered by any other person in New York." Weinstein said this sort of case should be brought by the city or the state. A New York State lawsuit based on the "public nuisance" argument was tossed out by a state appeals court last month.

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  1. http://www.naacp.org/news/releases/gunmarketing072103.shtml

    Good spin on the decision by the NAACP; can’t seem to find any sort of position statements on anything on this site..

  2. Wow, y’all are slapping these new items up pretty fast today, aren’t you?

  3. I dunno, this seems pretty activist to me. While a state appellate court threw out a similar suit, here a federal court whips out some pretty big dicta, accepting the argument and almost picking the next plaintiff. The judge is stating “forum shopping allowed here!”

    A pretty good defense to these suits should be that the federal government regulates all of these sales, and that all retail gun sales are sold through federally licensed gun dealers.

  4. I suppose no one likes my idea: Attack someone, without provocation (ie – it wasn’t an argument that got out of line) and not in self-defense, and we break both of your legs and arms with a blunt instrument.

    And no, you aren’t permitted to sue the blunt instrument manufacturer.

    Ah well, just a personal feeling of mine.

  5. So that nobody misinterprets what I’m about to say, let me first make it clear that under no circumstances should a gun manufacturer be held liable for the fact that some people use guns in crimes. Let me also make it quite clear that I suport the right to keep and bear arms.

    As long as we have an insane tort system, government regulation may actually be to an industry’s advantage. Regulations are written on paper, they’re drafted in a slow process, and the bureaucrats and politicians who write them can be bribed. And while the costs of compliance may be non-trivial, they can be predicted and passed on to consumers.

    Huge liability verdicts, on the other hand, are usually far larger than the costs of regulatory compliance, and cannot be easily predicted. Indeed, changing business practices in response to a possible lawsuit might even be construed as an admission of “guilt.” “If they weren’t doing anything wrong, why did they change their practices?”

    Strict gun control laws may be the best protection for the gun industry. They can say “We have already met every requirement specified by law.”

    Let me once again be clear: I am NOT supporting gun control laws. I’m saying that our insane tort system may actually put gun makers in the perverse situation where their best defense is gun control. Please don’t accuse me of being a liberal Democrat. (For some reason that accusation gets hurled at me a lot.)

  6. Handgun Control Inc would like it too – everything in baby steps.

  7. Time for one of my favorite quotes: “America is at that awkward stage – it’s too late to work within the system, but too early to shoot the bastards.”

    See the connection? Shooting? Gun Control? Get it? Hah!

    Yeah, I’m definately over-selling this post.

  8. thoreau has something of a point.

    The gun industry has tended to work ‘against’ gun control in a very different way than gun activists. This is particularly true of ‘big’ gun companies. Ruger, Colt, S&W, Remington, etc., don’t want to upset the government (small companies, particularly those that make non-PC arms, tend to be more absolute in defense of the Second). Hence, Ruger suggested a ban on mags over 15 rounds (which wouldn’t have effected the Ruger defensive pistols) instead of banning mags over 10 rounds (which would have). And Colt modified their ARs with “big” pins, etc., to make them “farther from Mil-Spec”. The big gun companies tend to ‘fight’ gun control by suggesting more ‘moderate’ gun control policies that effect their profits less, at least in the short term.

  9. Or, like every other industry, stifle their competition. Hence you can see support for 15 round mag bans vs. 10 round – not only do you look like you’re picking the ‘middle of the road’ alternative politically but you’ve advocating banning a product that someone else makes through a feature that may be perceived by some as its competitive advantage. The big gun makers may also like to see some of the smaller gun makers pushed out of the market, because the net effect will be more sales of their less offensive looking weapons to those buyers.

    I think this is a better explanation of their behavior than seeking protection from lawsuits – it obviously hasn’t worked to protect them from frivolous lawsuits and it would be in their best interest (long term, big picture) to stick to a strong second-amendment based defense rather than giving any tacit legitimacy to logically unfounded regulatory schemes such as limits on magazine sizes that can only lead down the slippery slope to more restrictions gun ownership in general.

  10. The CNN story is shallow and vapid. If you didn’t know the story already, you’d have no idea what they’re talking about.

    The judge didn’t accept their argument that the gun manufacturers create a nuisance; he merely ruled that it is legally possible to argue that they did in court. There are lots of sleazy or negligent things that a gun dealer could do that would count as a public nuisance. This was not a ruling on the evidence.

    A jury could still come back with a verdict based on rejecting the validity of the argument, or a judge could rule that the plaintiff didn’t meet the burden, or even summarily dismiss the case at trial – none of which even addresses the question of whether the plaintiffs proved their claim to be true.

    This is a preliminary ruling that could be made moot by a future dismissal at any time.

  11. So if I sell somebody a pencil, I am responsible for taking “adequate measures” to ensure he doesn’t stick it in somebody’s eye? Or if I’m a pet store owner, I should follow somebody around to make sure he’s not misusing the gerbil he bought to–well, never mind.

    So long as a product meets the common law “implied warranty” standard of properly doing what it’s designed to do, the seller should not be liable for a buyer’s misuse. Period.

  12. anyone else think the NAACP has outlived its shelf life?

  13. Kevin,

    You’re assuming that the only charge being made against the defendants in this suit is that their products were firearms, and somebody could get hurt with one of those things. If that is the case, it will be quickly dismissed, as the legal status of firearms is a slam dunk defense.

    That is not the same thing as saying that the manner in which the guns were distributed, marketed, or manufactured can never constitute a nuisance.

    If a storeowner let a street dealer take cases of weapons out the back door and pay in cash with no background check or paperwork, as a steady side business, it is a perfectly valid question whether his actions constitute a public nuisance in civil court (in addition to whatever criminal penalties apply). If a gun manufacturer keeps shipping to such a dealer, when the manufacture knows or has deduced what is going on, then there is a case to be made against the manufacturer.

    It’s a high burden of proof, but the judge was right to let the case proceed.

  14. “If a gun manufacturer keeps shipping to such a dealer, when the manufacture knows or has deduced what is going on, then there is a case to be made against the manufacturer.”

    Except that is never the case. The manufacturer ships to licensed dealers. Even the largest gun manufacturers are really small to medium size companies. They don’t have the resources to check up on dealers, and they only ship to dealers licensed by the federal government. If the dealer is some sort of crook, it’s the government–not the dealer–who should be sued, assuming a lawsuit is in any way a solution.

    Since the “street” price of guns is lower than wholsale by a considerable degree, it would seem that criminals obtain their guns by theft or by going to a black market dealer (an early 90s federal study found that inner city drug dealers were the source of most guns used by criminals–their customers probably paid for drugs using burgled guns).

    Isn’t it funny how our violent crime rate was lower back when a precocious 12 year old could buy guns through the mail?

  15. Joe:

    ?the manner in which the guns were distributed?. . .

    If they were not already breaking the law in the manner of distribution and so on, any civil suit would be a shaky at best as the manufacturers were simply abiding by the current law. If the plaintiffs find that law inadequate, there are means for them to address their issues and those means have nothing to do with law abiding gun manufacturers.

    The rest of your example relies on actions that are already against the law and so as much as a civil case would be justified, it would be after the manufacturers were convicted of their criminal offense.

    And ditto on the fact that it is not the manufacturers? responsibility to ensure the dealers are abiding by the legal terms of their government issued licenses.

  16. does NAACP have a gun position?

  17. Maybe they should go after the Hip-Hop industry. It would likely get thrown out as well, but they may have a better chance of pressuring for a settlement early. Keep it real.

  18. Has anyone ever done a study comparing gunshot fatalities to automobile fatalities? If so, which statistic is the greater?

  19. You know, Bullitt’s got a point …

    Let’s see how that would sit if we were to paraphrase as follows:

    You’re assuming that the only charge being made against the defendants in this suit is that their products were cars, and somebody could get hurt with one of those things. If that is the case, it will be quickly dismissed, as the legal status of cars is a slam dunk defense.

    That is not the same thing as saying that the manner in which the cars were distributed, marketed, or manufactured can never constitute a nuisance.

    If a car lot let a street dealer take trailer-loads of cars out the back door and pay in cash with no background check or paperwork, as a steady side business, it is a perfectly valid question whether his actions constitute a public nuisance in civil court (in addition to whatever criminal penalties apply).

    If Detroit keeps shipping to such a dealer, when Detroit knows or has deduced what is going on, then there is a case to be made against Ford, General Motors, and the like.

    It’s a high burden of proof, but the judge was right to let the case proceed.

    Yeah, sure.

  20. You all are making arguments on the merits of the case. Whether or not those arguments are convincing and backed up by evidence is a question of fact to be decided at trial, not at a preliminary hearing held to determine if a theory can be legally argued. The judge made the right call.

  21. Jim,

    What you’re describing is yet another example of regulatory cartelization.

    It’s pretty close to what happened with the Meat Inspection Act under TR, as Gabriel Kolko described it in “The Triumph of Conservatism.” Although the official version taught in the gummint schools is that Upton Sinclair provoked public outrage, and regulations were passed nearly over the dead bodies of the meatpacking industry, in fact it was a way of controlling competition and reducing the competitive threat of smaller and more efficient meatpackers.

    Any time the government passes quality or safety regulations, its real effect is to remove that particular area of quality as an issue for competition. It serves to cartelize the decision of quality issues as effectively as if the big players in an industry got together privately and agreed to regulate the extent of quality or safety competition among themselves. In fact, it is more effective, since it lacks the weak point of defectability. What it amounts to is big business acting through the state to create a trust or trade association under government auspices.

    Any time a filthy politician says he is doing something “for the children,” look to see who is slipping him cash under the table.

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