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GUN SMOKE | PAGE 1, 2
Why are the lawsuits happening at the city rather than the state or federal level, as we saw in the tobacco cases? The states based their damages on Medicaid claims, which are typically the age range of people with tobacco-related illnesses. Cities are in a different situation: It's the municipalities that bear most of the burden of gun violence. They have to run trauma centers, they have to run law enforcement, they have to do local prosecutions. Some states are considering the possibility, but it's more difficult because state legislatures are largely controlled by rural constituencies, which are less favorably disposed to this kind of litigation. Rural legislators are more likely to be people who are disposed to hunting and other recreational uses of firearms. In the state lawsuits, the plaintiffs sought Medicaid reimbursements. What are the cities demanding from gun manufacturers? The major element is health care. It's not just the immediate trauma care and running a trauma center, but also the subsequent after-care -- rehabilitation, law enforcement operations that have gun units and the cost of prosecuting gun crimes. In Chicago, they want a share of police costs that are attributed to gun violence and prosecuting violations. The New Orleans case is essentially the same as Chicago, but they have thrown in some other elements, like the loss of tax revenues due to loss of productivity. What legal strategies are the cities using? We've heard terms like "negligent distribution" and "public nuisance." Chicago and New Orleans are the prototypes of two different legal theories. Chicago is using a "nuisance theory," but the term I like to use is "promiscuous distribution." It's a distribution case where they're asking, Did the industry deliberately flood the market with guns? Chicago conducted an undercover investigation at the retail level, and found shocking practices. Chicago and Cook County have strong gun laws -- the rest of Illinois less so. Criminals and others who want guns in Chicago have been going to gun stores [outside] the city, buying firearms and bringing them into Chicago. The conduct [investigators] found at at least a dozen retail shops was shocking. There were clear instances where the dealers not only had to know they were selling to people who planned to transport them into Chicago, but that they intended to use them for criminal purposes. Moving up to the wholesale and manufacturing level, what Chicago is saying is that they flooded the market in surrounding counties in Illinois, knowing guns would be diverted into the Chicago market. The New Orleans case is about product design. They're saying: You could have made your guns a lot safer. You could have put various safety devices on the guns. The case goes so far as to suggest that the industry should have manufactured the so-called smart gun. But the issue is, Does that technology even exist, and is it a reasonable claim to make against the industry? The case presents some serious conceptual problems. Are there legal precedents to support the cities' litigation strategies? This is new ground. I think the closest case was asbestos, where you had an industry that was held liable in mass torts for a product that the legal system said was so dangerous, and had such a profound effect on non-consumers. People didn't buy it and stuff it up their nose, they got exposed to it, which is what happens with guns. Gun owners are a minority in America, but the damage they inflict is almost equivalent to automobile owners. And that's the function of tort law in our society. Everyone likes to scream about shark lawyers, but when you have a product that hurts lots of people, sooner or later our legal system finds a way to balance the cost to stop the bad process. I find it ironic that the most vociferous libertarians have said in other contexts that we don't need regulatory agencies because we have this tort system that brings to account economic wrongdoers. What steps is the gun industry taking to defend itself? In addition to hiring good law firms, the industry has mounted an attack at the state level in an effort to cut these lawsuits off at the knees. That's what happened in Georgia, and there's also a bill pending in Louisiana. They will do one of two things: Either they will get legislation to ban cities from hiring lawyers on a contingency-fee basis or they will get the states to ban cities from bringing suits against firearms manufacturers. They could say that since cities are creatures of the state, litigation should be the state's decision. This has been an expression of the National Rifle Association's power -- they're leading the legislation strategy. The NRA is probably the best lobbying organization in the world. But there's a question as to whether the industry as a whole has a real strategy. They can activate their people all over, whereas the tobacco industry had to fall back on tobacco-producing states for support. Their allies peeled off. Congress introduced legislation this week that would ban the gun suits. What are the chances of the legislation passing? Bob Barr is the legislative arm of the NRA -- he's on their board and was a leader in the move to repeal the assault weapons ban. He's Mr. Gun. Anyone who has seen Bob Barr in full rant knows that this is typical of his hypocritical legislation. But remember, it was Barr who attacked federal funding for local crime initiatives in the past, saying the choice should be at local, not federal, level. Now he's saying the federal government should interfere with local government. I don't think Clinton would sign this bill, so it won't go anywhere. And hopefully it won't cost the country as much as impeachment did. Even in the Republican Party, Barr represents an extreme wing that the leadership is not really comfortable with. They may give it some lip service -- it could move to the floor on a day when moonbeams are particularly strong, but it would never make it through the Senate. Does the Second Amendment (the right to keep and bear arms) protect gunmakers from these lawsuits? The Second Amendment argument that you always get into is just fruitless -- it's probably the most bogus articulation of all. Whatever the Second Amendment means, it's clear that it applies only to action by the federal government. It doesn't apply since none of these lawsuits would prevent gun companies from making firearms. They would simply make them factor in damages they inflict on non-gun users. Gun users might have to pay more for their toys. The gun suits are a remarkable piece of social engineering on the part of the cities. But Americans are a gun-loving people. Do you see broad support for the suits or a public backlash against them? There's no question the American love affair with guns is fading. The principal reason is that we're changing from an agrarian economy to an urban and suburban economy. The current manifestation is that hunting is clearly in decline. In the next quarter century, hunting will effectively disappear. For the gun industry, this means lots of children today aren't being exposed to firearms. It's been proven that exposure to firearms as a youth is one of the leading indicators of whether or not a person will be a fan or purchaser of guns in the future. Kids today would rather go on the Internet or play computer games than shoot a deer. But public antagonism toward lawyers and litigation clouds the issue. Until you see a movie like "A Civil Action," you don't see that sometimes litigation is the only solution. It's easy to dismiss this as a bunch of lawyers trying to make a buck. The gun issue also involves demographics -- race, class and urban vs. rural. In different communities, you will see different attitudes. In Chicago, I've spoken to people who don't understand why these lawsuits can't be slam-dunk cases. They can't understand why anybody would oppose them. But I also often participate in call-in radio programs, where I encounter a lot of people who feel strongly the other way. Opinions ultimately break down along demographic lines. But the developing consensus is that we need stricter gun control.
Are the lawsuits against gunmakers frivolous, or should the industry be taken to the mat? State your case in the Politics section of Table Talk
Bull's-eye The Brooklyn lawsuit that rocked the gun industry changes the argument from gun control to corporate responsibility.
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