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Minneapolis moving closer to decision on gun lawsuit

Author / Coordinator: Brian Becker
Minnesota Lawyer
March 1999

Case could set precedent for suits by individuals

Minneapolis may come one step closer this week to deciding whether to file a lawsuit against the gun industry, according to city officials.

An aide to Minneapolis Mayor Sharon Sayles Belton said that the mayor is waiting to receive a recommendation from the City Attorney’s Office on whether the city should file a lawsuit against the gun industry.

According to aide Amy Phenix, the report could come as early as this week from City Attorney Jay Heffern whose office has spent the last several weeks reviewing the matter.

With the recent $6.6 billion settlement of the state’s case against tobacco companies, there has been a lot of interest in the possibility of seeking compensation from gun manufacturers.

Since November, five cities — New Orleans, Atlanta, Miami-Dade County, Chicago and Bridgeport, Conn. — have filed lawsuits against gun manufacturers, distributors, dealers and trade associations seeking reimbursement for the costs of gun-related crime. More suits are expected to follow.

In St. Paul, however, Mayor Norm Coleman has made it plain he does not favor suing the gun industry.

According to spokesperson Mike Zipko, Coleman believes that a lawsuit would wrongly shift responsibility for gun-related crime from the people who illegally use guns to the manufacturers and dealers.

Despite Coleman’s view, St. Paul City Council Member Jerry Blakey introduced a resolution earlier this month directing the City Attorney’s Office and police department to investigate the viability of a lawsuit against the gun industry. The resolution met with tepid enthusiasm and was tabled until March 17 when the City Council will consider it again.

Zipko said Coleman is not necessarily opposed to studying the issue further, but at this point “does not believe that filing a lawsuit will make for safer neighborhoods.”

For its part, the state Attorney General’s Office has stated that at present it has no plans of filing against the gun industry.
Meanwhile, lawyers predicted that lawsuits against gun manufacturers by private individuals will soon swell if local municipalities pursue actions.

Flurry of lawsuits

The recent flurry of lawsuits aimed at the gun industry are best explained by the success of the tobacco litigation coupled with a change in the public’s perception of guns, said Brian Siebel of the Center to Prevent Handgun Violence in Washington, D.C.

Siebel observed that many city officials are emboldened by the victories obtained by states against the tobacco industry which so far has doled out in excess of $250 billion to settle lawsuits brought by the states.

Siebel observed that the public is becoming increasingly concerned about gun-related violence. He noted that since 1996 candidates with moderate gun-control planks have been elected to public office, defeating those opposed to gun control.

As evidence, he cited the 1998 election of Charles Schumer (D-N.Y.) and Barbara Boxer (D-Calif.) to the Senate, and Gray Davis’ victory in the California gubernatorial race.
“Historically guns have always had a protected place in our society,” said Siebel. “Guns, for example, are the only product exempt from the Consumer Product Safety Act.

But I believe that’s changing. People are beginning to view the gun industry, like the tobacco industry, as utterly unresponsive to the damage their product is causing.”

In 1996, more than 34,000 people were killed with firearms, making firearms second only to motor vehicles as the leading cause of death in the U.S.
Hired guns?

Gun industry defenders dismiss any claim about a shift in public opinion regarding firearms. Instead they characterize the recent spate of city lawsuits as the result of greedy trial attorneys and anti-gun activists manipulating opportunistic city politicians.

Jack Adkins of the American Shooting Sports Council told Minnesota Lawyer that the city lawsuits are “litigation tyranny” and “extortion” and an attempt by politicians to deflect their own failure to control violent crime. Adkins said he resents the analogy between tobacco and guns. Unlike tobacco, he observed, firearms pose no risk to their user when handled properly. “How can mayors on one hand claim guns are ‘inherently dangerous’ and then provide those same guns to police departments to use in protecting themselves and the public?” he asked.

Adkins added that unlike big tobacco, the gun industry cannot afford to settle the lawsuits filed against it.

In 1997, the gun industry had total sales of $1.4 billion as compared to $48 billion for cigarettes.

“We don’t have the deep, deep pockets of tobacco, so we will fight these suits as long as we are able,” he said. “And we firmly believe that we have the law on our side and will win on the merits.”

The American Shooting Sports Council, National Rifle Association and other gun organizations have stepped up their educational and lobbying efforts in hopes of galvanizing public support. Last month, for example, just days after Atlanta filed its lawsuit, the ASSC and NRA were successful in getting signed into law a bill that makes Georgia the first state to prohibit its cities and counties from filing lawsuits against the gun industry. How the new law will affect the Atlanta suit is as yet unclear.

Liability theories

Of the suits filed thus far, the cities have relied on two principal theories of liability: products liability and negligent gun trafficking.

New Orleans, Miami-Dade County and Atlanta use products liability. They argue that gun manufacturers have failed to incorporate various readily available safety features into gun design. These features would prevent guns from being used by children, criminals or other unauthorized users. They would also alert users that a bullet is in the chamber or prevent a gun from being fired when the magazine is removed.

The Chicago suit, which seeks $433 million in damages, alleges that the gun industry has created a public nuisance by facilitating the trafficking of large numbers of firearms into the city, where handguns have been illegal since 1982. The city argues that the gun industry is collectively liable because it purposely oversupplies the area market, knowing full well that a large percentage of the guns it sells through legal channels will end up being diverted to the criminal market or to the hands of juveniles.

Bridgeport’s lawsuit relies on both products liability and negligent gun trafficking theories, and introduces a third: unfair trade practices. The city maintains that the gun industry has violated Connecticut’s unfair trade practices act by advertising guns as increasing the safety of homes, when public health data indicates that bringing a gun into a home decreases the security of gun owners and their families.

The products liability and negligent trafficking theories have met with limited success in recent suits by private individuals.

In Dix v. Beretta, the parents of a teenager argued that the gun which killed their son was defectively designed. A California trial court judge permitted the case to go to the jury, and that decision was upheld on appeal. The jury, however, ultimately concluded the gun manufacturer was not liable.

In Hamilton v. Accu-tek, a federal jury in New York last month found 15 of 25 gun manufacturers liable for failing to control the manner in which their products were distributed.

However, the New York jury awarded only $560,000 in damages to one of the seven plaintiffs.

Although this is the first time a jury has found the industry negligent for its marketing and distribution practices, court observers said the low award amount indicated the jury’s difficulty in finding a strong link between the industry’s negligence and the specific crimes at issue. The case is currently on appeal.

More individual suits?

Some local attorneys say that the recent swell of city filings against the gun industry will likely lead to more individual filings.

Minneapolis attorney William Sieben predicted that the city suits will have a “huge impact” on the willingness of plaintiffs’ attorneys to bring cases on behalf of individual clients.

“With each new case, even if it’s unsuccessful, there will be more discovery, more smoking guns uncovered, and subsequent suits will be easier to win,” said Sieben.

Though his firm does not have any gun cases as yet, Sieben remarked that he would be willing to take some on.

St. Paul practitioner Thomas Germscheid observed that individual plaintiffs may actually have a stronger case than municipalities on the facts. Individual plaintiffs will have suffered direct harm as a result of guns, whereas municipalities are one step removed from the harm and can only show damages in the form of dry calculations demonstrating an increase in public services due to gun-related violence. Though Germscheid said he expects to see more individual lawsuits, he cautioned that establishing causation will continue to be a big problem for plaintiffs.

Kenneth Ross of Minneapolis’ Bowman & Brooke agreed. He warned that “[i]n the products liability context, plaintiffs must have a causal link, they must be able to show that this or that additional safety device or change in design would have prevented the injury. And that’s hard to do.”

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