Nuisance Nonsense

More good legal news from last week: The Illinois Supreme Court has nixed the city of Chicago's lawsuit charging that gun manufacturers and distributors created a "public nuisance" by making and selling weapons that ended up in criminals' hands. "The mere fact that defendants' conduct in their plants, offices, and stores puts guns into the stream of commerce does not state a claim for public nuisance," the court ruled. "It is the presence and use of the guns within the City of Chicago that constitutes the alleged nuisance, not the activities at the defendants' various places of business."

According to the Second Amendment Foundation, a total of 28 government-sponsored gun lawsuits have been defeated so far. It's beginning to look like Michael Krauss was right in arguing that congressional intervention to block such litigation was premature.

Comments

[Anvilwyrm]

Congressional intervention was solicited not because there was any real likelihood that manufacturers would lose cases, but because they could win every case and still be driven out of business.

[kevrob]

The confiscators aren't done with this tactic.

But Dennis Henigan, legal director at the Brady Center to Prevent Gun Violence, said the Illinois justices relied on a "very narrow'' interpretation of state law that he said requires plaintiffs to prove negligence in order to prove public nuisance.

Laws elsewhere are not as restrictive as Illinois', Henigan said. He said the rulings were also "out of step'' with courts in New York, Washington, Ohio and Indiana, which have allowed public-nuisance cases to proceed. - Chicago Tribune AP story, Nov. 18 2004 http://tinyurl.com/4n56w (free reg. required)

They'll keep judge-shopping from juridiction to jurisdiction until they stick enough harpoons in Moby Gun.

Kevin

[Sarnath]

because they could win every case and still be driven out of business.

I guess I'll just have to buy as many guns as I can and stash them.

[Francis Bacon]

Kill all the lawyers.

[Adam]

I just want to post a shout out to Jacob for coming to the Students for Sensible Drug Policy National Conference this weekend and for making it through his speech despite the fact nobody told him he would be giving it in a loud, crowded bar! Apologies for that, but thanks so much, Jacob!

[Ayatollah Usoe]

Unlike to tobacco industry, the gun industry is without "deep pockets." Unlike smokes, a gun potentially lasts one hundred years and counting, so the proliferation of guns is over a century. Anti-gun groups, dissatisfied with legislative approaches, have turned to the courts. The plan is to kill the industry by a death of one thousand cuts.

Each gun now has to come with a gun lock. That's just an extra cost imposed on the manufacturer. It adds no value to the gun, and makes used guns more attractive. BATFE paperwork also adds to the burdens.

I support the Gun Owners Foundation. But there are a lot more anti's than gun manufacturers, and the cost of all this litigation, if it doesn't bankrupt the industry, will certainly be reflected in the price of new guns. With a 100 year inventory of used guns, can the industry survive?

[Davifd T]

The reason for the legislation wasn't that there was a real fear that such suits would succeed. Nor was it even that such litigation was costly (by the way, it's costly for plaintiffs as well as defendants)--after all, the legislation could itself be attacked in costly litigation as arguably unconstitutional. The purpose was to (pardon shouting) WIN VOTES. It's like the anti-gay marriage amendment. The people who proposed it would stil want it even if it were 100% certain that the Supreme Court would uphold the Defense of Marriage Act, and that no state would be forced to recognize gay marriage against its will. The point is that in poltics you need a menace, and if there isn't a real one, a phony one will do. "If you don't vote for us,the boogey man will get you! Activist judges will put the gun industry out of business and impose gay marriage on you" Etc., etc.

[David Nieporent]

First, as a couple of commenters have noted, the gun makers can win and still lose, since defending suits costs money. Davifd -- it doesn't matter that it's costly for plaintiffs also, because unlike defendants, many of the plaintiffs aren't spending their own money. They're spending taxpayer money.

Second, under our system, all it takes is one win for the plaintiffs. The gun industry can win 99% of suits -- but that last one could put them out of business.

Third, it's not really clear to me how this shows that Congressional action is premature; it's true that none of the suits have succeeded yet, but that's exactly when the legislation needs to be passed. After there's an anti-gun verdict it will be too late.

Davifd -- how is this a "phony" menace? These are real lawsuits. No, they haven't succeeded yet -- but neither did the suits against the tobacco companies... until they did.

[Dan]

The reason for the legislation wasn't that there was a real fear that such suits would succeed.

You're welcome to believe that. But does it matter? The suits are groundless, offensive to human rights, and a waste of time and money. Give one good reason not to ban them.

[Andrew Lynch]

a gun-lovers thread with fewer than 100 posts? hmmm, must be a holiday.

[David T]

"Give one good reason not to ban them."

One good reason for *Congress* not to ban them (I don't object to state legislatures doing so)is something called federalism. You're setting a precedent for Congress to control who sues whom in state courts. It never ceases to amaze me how libertarians don't realize that such a power can also be used *against* them--e.g., an anti-gun Congress could prohibit gun owners' suits against state governments (I have in mind here suits under state constitutional provisions which sometimes go further in protecting gun owners' rights than the Second Amendment, at least as the latter is interpreted by the federal courts).

For libertarians of all people, trusting Congress not to abuse its powers is absurd. And what is the justification for the use of Congress' powers here? The interstate commerce clause--these lawsuits, it is alleged, even if unsuccessful, harm the gun industry financially, which affects interstate commerce. Pardon, but I thought libertarians were *against* stretching the interstate commerce clause (after all, gun control advocates can use similar logic to say that *guns* impede interstate commerce...)

[thoreau]

David T-

I completely agree on the federalism issue. Congress should only ban such suits in federal court, and the state legislatures should act to ban or at least limit such suits in state courts.

[Larry A]

"As long the law suits can only affect the state which they are done in."

Except they don't. If I sell a new gun in the Texas gun store I work in it will most likely have an envelope in the box containing a spent shell, which is completely useless in Texas. As it is in most states. But manufacturers can't afford to make one gun to sell in the few states that require the shell to be submitted and a different one for all the states that don't.

Even though two-thirds of the states have passed legislation prohibiting such lawsuits, the litigation proceeds in states that haven't. And if one suit succeeds, and bankrupts the industry, that will shut down the civilian market everywhere.

In addition, the idea of suing any industry that displeases you is spreading. IMO Congress needs to pass legislation prohibiting lawsuits where vigilante attorneys seek to regulate legal behavior for all industries, not just the firearm manufacturers.

[Dan]

The interstate commerce clause--these lawsuits, it is alleged, even if unsuccessful, harm the gun industry financially, which affects interstate commerce. Pardon, but I thought libertarians were *against* stretching the interstate commerce clause

It's not a stretch at all. One of the primary intended purposes of the commerce clause was to prevent states from fucking over each other's economies. The sole purpose of these lawsuits is to bankrupt an innocent industry, at the national level, by harassing it with bogus grievances. Congress has not merely the right, but the *duty*, to prevent them.

[David T]

Dan: Manufacturing a gun is, well, "manufacturing*, not commerce. Of course, if you put a manufacturing company out of business, its products won't circulate in commerce, but the fact remains that the lawsuits are aimed directly at gun manufacturing. Virtually any law indirectly affects commerce, and if that is to be the criterion, federal authority over economic legislation is virtually unlimited.