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BULL'S-EYE | PAGE 1, 2
Still, Barnes' theory might have gone nowhere but for two extraordinary breaks. The first: a whistle-blower -- a former Smith & Wesson vice president named Robert Haas. Haas heard about Barnes' suit and sought her out. He provided an affidavit declaring that his former employer and the entire gun industry knew about "the seepage of guns into the illegal market" from thousands of licensed but otherwise unsupervised dealers. (In fact, of 235,000 federally licensed firearms dealers in the country, only 30,000 are sporting goods shops or other storefront retailers. The remaining 205,000 sell their guns out of their kitchens or car trunks.) Barnes' second break came when she maneuvered her case into the courtroom of federal Judge Jack Weinstein. It probably helped Barnes' case that Weinstein is generally known as an outspoken iconoclast on the temperamentally conservative federal bench, taking on a variety of sacred cows such as drug sentencing. Even more important, however, he was widely regarded as an innovator in mass-injury cases. Indeed, it was Judge Weinstein in those DES cases who first established the idea that on rare occasions, an entire industry might by liable for a negligently distributed product. If every company is involved, then every company is responsible -- each according to his market share. Barnes' two-pronged strategy worked. In May 1996, Weinstein took the unprecedented step of letting the Hamilton case go to trial. It is "possible," he wrote, that "a substantial cause of the killings" is "a large-scale underground market" created through the gun companies' negligence. It was that "large-scale underground market" that Barnes and the gun companies spent the last month debating before that Brooklyn jury. Barnes showed that 90 percent of handguns used in New York crimes are legally purchased out of state -- half of them in Florida, Virginia, North Carolina, South Carolina and Georgia. What's more, because the case was permitted to go to trial she was able to subpoena gun company records and found that through warranty registrations, the industry knows it is selling guns in these states far in excess of local demand. Instead, she argued, guns are going to "straw buyers" who transport them to the streets of Brooklyn and other restrictive cities and states. The gun companies didn't dispute her figures, only her interpretation. Barnes also showed that gun companies fail to meet minimal standards for inventory control or tracking. Barnes' "oversupply" theory worked. Last Thursday, the jury found 15 of the nation's largest gun companies negligent in marketing and distribution. Although the verdict was complex -- 42 pages -- and damages awarded by the jury were small -- apparently to mollify one juror who worried about unleashing a flood of tobacco-like cases -- there was no question about the message to firearms corporations: "I don't think they felt they needed to care, and this verdict will have them rethinking that," Hamilton told the press. The Hamilton verdict comes, of course, within weeks of Chicago, Miami, New Orleans and Bridgeport, Conn., filing their own liability suits, with Atlanta in the wings. Suddenly, an industry that seemed invulnerable thanks to the strength of the gun-owner lobby is running scared. So convinced are industry leaders of their vulnerability to future suits that their only strategy seems to be to block such suits from ever being filed: In Georgia and Louisiana, the National Rifle Association has convinced friendly state legislators to propose laws of dubious constitutionality preventing Atlanta and New Orleans from pursuing their claims. The obvious comparison of handgun suits to the recent tobacco cases has to a certain extent obscured the real political significance of these cases. For one thing, they mark the end of "gun control" as it has been traditionally known. Gun laws aimed mainly at gun buyers proved over many years to be a profoundly difficult strategy: It always looked like the heavy hand of government restricting individual consumers, making easy the NRA's Second Amendment defense. And the lobbying power of the NRA itself made state legislatures -- especially in rural regions -- and Congress poor arenas for much gun regulation. These lawsuits, on the other hand, are not about gun control. They are about corporate accountability. The Hamilton verdict says nothing about the Second Amendment. Rather, it calls upon gun makers to assert the same responsibility as the makers of hazardous products ranging from dynamite to scuba gear; to match supply to legitimate demand; to track inventory; to monitor the sales practices of dealers. Until now, gun companies have been the hidden villains of the gun market, secret beneficiaries of the nation's crime rate. The Hamilton case, and the lawsuits sure to follow in its wake, offer an opportunity to re-conceive the debate over guns and crime violence into a wide-ranging attack on corporate predators.
Bruce Shapiro covers legal issues for the Nation and writes frequently for Salon. - - - - - - - - - - - - - - - - - Become a Salon member. Click here. |
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