Guns in the courts: lawsuits now pending seek to hold handgun manufacturers liable for the damage caused by their product

THE BITTER DEBATE over gun control, which for two decades has taken place in Congress, state houses, and city halls, is being carried into the courtroom. With this change in venue comes a change in the shape of the issue. A new strategy is emerging, one that purposefully circumvents the legislative process, tries to avoid the usual constitutional argument about the right to bear arms, and instead calls forth the citizen’s right of legal redress.

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Almost sixty lawsuits are now pending in which victims of handgun shootings are suing the manufacturers and distributors of the cheap, concealable guns with short barrels called “snubbies” or Saturday Night Specials. Phillip Corboy is the lawyer representing the widow and family of James Riordan, the highest-ranking police officer ever killed in the line of duty in Chicago, in their suit against Walther, the West German manufacturer, and International Armament Corporation, the American distributor of the gun used to kill Riordan. In Washington, D.C., Jacob Stein, a lawyer acting on behalf of presidential press secretary James Brady and his wife, Sarah, drew up a suit against another German gun manufacturer, Roehm GmbH., and its American importing facility, RG Industries, Inc., demanding $100 million for damages inflicted by their product–John Hinckley’s gun. Windle Turley, a Dallas lawyer, has filed nineteen similar lawsuits in nine states.

All these cases are based upon an unconventional and as yet unproven application of product-liability law, the law made famous by the suits against the Corvair and Pinto automobiles. The lawyers and their clients do not contend that the making or selling of handguns is illegal, or that the manufacturers are guilty of a crime. Neither do they seek a court-ordered ban on these guns. What they do contend is that these handguns, which took 22,000 lives in America last year, are built and sold with no purpose other than to kill people, and that the harm they inflict upon society is so great that the manufacturers who profit from them should be held financially responsible for the damage they cause. The plaintiffs and their counselors are trying to stimulate an economic incentive for gun control: if manufacturers are held liable for damages, they will either pay exorbitant rates for their insurance or lose it altogether, leaving them little choice but to keep a tighter rein on gun sales or get out of the business.

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The idea of using product liability against handgun manufacturers was first brought before the public by Stuart Speiser, a New York tort attorney, in his book Lawsuit, published in 1980. In a chapter entitled “The Ultimate Deterrent: Taking on the Gun Lobby,” Speiser called on “inventive” tort lawyers to carry product liability “one step further and bring the great power of our civil courts to bear on a problem that our legislatures and criminal courts have not been able to solve.” Presenting an array of product-liability precedents and dramshop common law (holding suppliers of liquor responsible for injuries that result from serving liquor to an intoxicated person), Speiser outlined ways to support lawsuits that could hurt gun suppliers financially.

The concept also occurred to Turley in 1980, and he began investigating its potential. Turley, a litigation lawyer known for his creative use of tort law, assigned the building of a liability case against gunmakers to his firm’s research-and-development department, allotting it a budget of several hundred thousand dollars and two full-time attorneys. Long an ardent supporter of gun control, Turley has become something of a crusader, giving public lectures on the new legal strategy of using product-liability law, conducting law-school symposia, writing law-review articles, and even submitting to the questioning of Mike Wallace, on 60 Minutes. More important, he has encouraged fellow lawyers to try the strategy in court–for example, traveling to Washington to urge Jacob Stein to use it in the Brady case. About sixty cases had been filed by the end of last year; Turley’s “conservative estimate” is that more than 200 suits will be on the dockets by the end of this year.

A citizen’s-advocacy organization based in Washington, Handgun Control, Inc., plans to become a national information clearinghouse, where victims of handgun violence can learn of the legal actions available to them and obtain a list of lawyers willing to take on their cases; lawyers will be able to find a repository of books and legal briefs for preparing suits.

While Stuart Speiser still waits for a case strong enough to test his original ideas, and Jacob Stein tries to keep a low profile in a case whose participants cannot avoid worldwide attention, Windle Turley is courting the press, and has emerged as the dominant legal practitioner in the new field. Even though his opponents honor him by labeling the legal initiatives against gun suppliers “the Turley angle” or “the Turley routine” or “the Turley fixation,” the true paternity of the strategy doesn’t matter. As Mark Wooster, an editor of the Harvard Law Review who is analyzing these cases, points out, all the lawyers involved will be trying to prove that the legal ideas they are presenting are not their own. “Originality is a sin in law,” he says. “All you want is precedent.”

Critics of these cases–and there are many–consider them to be totally without legal precedent, and without merit. They see them as a sinister manipulation of the court system by zealous reformers bent on achieving their political goals, or as the actions of a bunch of greedy lawyers looking for new sources of income, or as a plot to shift the culpability of the criminal onto businessmen.

The cases have attracted an unusual amount of attention. The New York Times applauded the suit brought by James Brady in an editorial published last summer. The staff of Senator Edward Kennedy, which pours its energies into the Senate’s doomed gun-control bills, offered the legal efforts its blessing. The attitude of President Reagan toward the suit his friend Brady is bringing can only be surmised, but a close confidant of the President, Senator Paul Laxalt, wrote a fierce indictment of the strategy in his preface to a monograph called “Turning the Gun on Tort Law: Aiming at Courts to Take Products Liability to the Limit,” published by the Washington Legal Foundation, a conservative legal think-tank. One of the attorneys for the defense in Brady’s case is Paul D. Kamenar, a staff lawyer for the Washington Legal Foundation.

THE LAWYERS PLEADING for the plaintiffs see their legal strategy as a logical extension and amplification of concepts already firmly established in tort law. A brief explanation of legal definitions will help make clear the foundation of these lawsuits.

Tort law is a system of justice meant to deter unreasonable behavior, and, failing that, to allow compensation for injury caused by dangerous behavior. Torts usually concern the harm inflicted by one person on another, even if no criminal actions take place, and are usually remedied by the paying of damages, as in auto-accident cases. Product liability is a subdivision of tort law that holds the makers and sellers of products responsible for any harm the products cause consumers. Manufacturers can be found liable if they fail to meet certain “duties of care” to the public. The three standards of care being applied in these cases are: Negligence–the manufacturer could foresee the harm his product might cause but failed to take “reasonable care” to prevent it. Strict liability–makers and sellers of products that prove to have a “defect” that makes them “unreasonably dangerous” must bear special responsibilities. Absolute liability–those who pursue “abnormally dangerous” or “ultrahazardous” activities are liable for any harm that might be caused by their actions or products.

The dividing lines between these standards for judging liability are blurry, and the categories often overlap. Each of the lawsuits already filed employs a combination of all three, depending on the factual circumstances of the particular case and the statutory and common law of the state where it will be decided. When the cases come to trial, the attorneys will have to prove to the judges that their clients have a legitimate claim under the doctrines of product liability. They will concentrate especially on establishing their claims of strict liability, which, as a species of no-fault liability, impugns not the actions of the manufacturer but only the defective product. Strict liability is easier than absolute liability to prove as a matter of law, and easier than negligence to prove as a matter of fact.

In order for a court to hold a manufacturer strictly liable, the plaintiff must Show that the product contained a defect; that this defect caused the product to be unreasonably dangerous; and that it inflicted harm. A precise definition of “defect” has not yet been articulated by the courts, and is the subject of continuing legal dispute. Nonetheless, three general categories of defect have been established–those arising in a product’s design, in its manufacture, or in its marketing.

The emphasis in the cases coming to trial will be on the alleged “design defect” of handguns, though some suits also claim a “marketing defect.”

The gist of the plaintiffs’ arguments for holding gun manufacturers and sellers strictly liable is the following sequence of assertions: Small-caliber (less than .38), short-barreled (3-inch or less), lightweight, inexpensive ($50 or less), easily concealable handguns are designed, manufactured, and distributed principally for shooting people; this kind of gun is not sufficiently accurate or reliable for sporting use, military or police functions, or even for self-defense; these properties make the gun “defective” by design; these handguns, having no purpose other than to injure and kill, are of no benefit to society; they are indiscriminately marketed to the general public without proper precautions or screening of buyers; this type of marketing is “defective”; the design defect of handguns, when coupled with the marketing defect, creates an unreasonably dangerous situation and risk of harm to society.

The plaintiffs are using the term “defect” in its broadest possible meaning, almost in the sense of a social defect, and the defendants insist that this definition is so broad as to be meaningless. They insist that the plaintiffs must show that the particular gun used in each instance was mechanically defective–that something was specifically wrong, such as a faulty trigger, that made it unsafe. A handgun is not defective simply because it can shoot bullets, the defendants say; that is its natural function and the reason it is purchased.

There are two tests that can be used by the court to determine if a design is defective. The traditional one, the “consumer-expectation test,” recognizes a defective product as one that fails to meet the reasonable expectations of the ordinary consumer that it will be safe in normal and intended use. The second one, which has emerged only in the past few years but is quickly gaining acceptance, is the “risk/utility balancing test,” in which the risk of injury posed by the design of the product is weighed against the benefit of the product to society. The defendants lean heavily on the consumer-expectation test, because it is true that guns are bought with the thought of eventually shooting someone, and they meet that expectation. The plaintiffs will try to persuade the courts to employ the risk/utility test.

“Injury or death is not a socially acceptable benefit of a product,” Windle Turley writes in the complaint of Diane Moore v. Roehm GmbH. Balancing the risk that handguns are known to pose to American society (an average of fifty deaths a day, hundreds of thousands of injuries a year, and millions of dollars in medical expenses) against their utility as a destructive tool must tip the scales in favor of the public safety, he contends.

But handguns do have social utility, the defendants reply: they are used by hunters of small game and undercover law-enforcement officers, and, especially, by law-abiding citizens, for self-protection. The plaintiffs refute these claims with statistics on the number of states that ban hunting with small-caliber weapons and the overwhelming preference of hunters for long guns. They cite the distinct differences between the large, finely crafted handguns used in police work and the cheap street guns under discussion, and offer some startling numbers on the ineffectiveness of handguns as an implement for self-defense: studies have found that the assault victim who offers armed resistance is anywhere from two to eight times more likely to be hurt or killed in the attempt than one who offers no resistance.

It was not a handgun that shot the plaintiffs or their kin, the defendants say, or even a jealous lover or a nervous homeowner. It was a criminal who shot them–a variation on the standard “Guns don’t kill people, people kill people” refrain. Even if the gun could be proven “defective,” the defect did not cause the harm, an intervening, unforeseen criminal did–and this breaks the legal chain of causation and sets the manufacturer free from liability. To this the plaintiffs respond that in strict liability, as opposed to negligence, the actions of neither the producer nor the user are in question, only the product itself, and the intervention of a criminal does not preclude a claim. They also say that the usual focus on criminal use of handguns is misplaced and misleading, because handguns are equally lethal in the hands of the general public. According to FBI crime analyses, fewer than 15 percent of handgun homicides were actually premeditated murders–most were impulsive shootings of family, friends, or neighbors during quarrels, or accidental shootings, or suicides (a full 50 percent of all handgun deaths are suicides).

The plaintiffs argue that it is the compounding of the handguns’ defective design with a defective distribution chain that creates the unreasonably dangerous situation deserving of strict liability. Distribution also enters into the plaintiffs’ claims of negligence, which are, in essence: that manufacturers made a conscious business decision to design this kind of handgun so as to make it concealable, sell it cheaply, and market it indiscriminately; that because of these properties, handguns are the “weapon of choice” among criminals (50 percent of murders, 40 percent of robberies, and 23 percent of aggravated assaults are committed with them); that the defendants knew or could foresee that their handguns would be used in crime; that they did not take proper precautions to keep their guns out of the possession of people “psychologically unfit” to have them; that the manufacturers and distributors were thus negligent in their responsibility to the public.

The plaintiffs’ briefs suggest that a stringent police check of all prospective gun buyers be routine, and that a mandatory waiting period be imposed in order to curtail impulse purchases (the Kennedy/Rodino bill, pending in Congress, would have all states implement these). The defendants point out existing state and local ordinances requiring gun buyers to fill out forms revealing any police record and attesting to their mental stability, and statutes requiring police checks and possession permits. The manufacturers and distributors insist that they are in compliance with all current rules and cannot be made liable when they have obeyed the law. But many gun dealers do not enforce the rules that do exist, the plaintiffs say, and the manufacturers and distributors have an obligation to oversee the dealers and, if necessary, withdraw their guns from shops known to give guns to anyone who will plunk down his money. Should all these measures prove unworkable, the plaintiffs’ briefs continue, the manufacturers should restrict the sale of their handguns to the military, the police, and authorized sporting clubs.

Foreseeability is a key element in proving negligence. The defense asserts that manufacturers do not intend and cannot foresee that their guns might fall into the hands of people who will use them in criminal acts. They are meant for good citizens who will use them only for sport or self-protection, and suppliers cannot be held accountable for their products’ being intentionally misused. In rebuttal, the plaintiffs quote more statistics. Manufacturers may intend their handguns for the solid citizen, they say, but in truth handguns are the number-one weapon of crime: while they represent fewer than 20 percent of the privately owned firearms in the nation, they account for 90 percent of gun-related deaths and injuries. An estimated 100,000 handguns are stolen out of the homes of those solid citizens every year and used in crime. New handguns are far more likely to be used in crime than old ones, and 2.4 million new ones are introduced into this country every year.

Absolute liability is a rare and difficult standard to impose, and is usually applied only to those engaged in the “ultrahazardous” production of certain drugs, explosives, toxic chemicals, and nuclear devices. But in their lawsuits, Stein and Corboy ask the court to find the gunmakers absolutely liable for introducing “abnormally dangerous instrumentalities of no social value and contrary to public policy … into the channels of commerce.” The defendants refute this claim by placing handguns under a different legal heading–“unavoidably unsafe” products, which, by the current limits of technology, cannot be made completely safe for their intended use but are beneficial and so exempt from absolute liability.

From the premise of these arguments certain troubling questions naturally arise. For example, if strict product liability can be extended to lawful, properly functioning, but dangerous objects such as handguns, won’t the makers of long guns, knives, axes, liquors, sleeping pills, cigarettes, and automobiles soon be made liable too, based on their products’ potential to cause injury? After all, an automobile can be as deadly as a gun; as the cause of 55,000 deaths each year, cars easily best handguns as the leading cause of unnatural death. Should the courts decide whether a compact car is riskier than a large car, and place liability on its makers? Using the risk/utility test, Turley, Stein, and Corboy say that other products are potentially dangerous but causing injury is not their prime function, as it is the function of handguns; they all have other, beneficial uses that outweigh their occasional risks.

THE USE OF product-liability law to instigate a sort of gun control is not a popular idea within the legal community. “I find myself in a very difficult position in this controversy,” says Sheila Birnbaum, a product-liability specialist and professor of law at New York University Law School. “Though I believe in gun control, I think it should be accomplished by other means. My feeling is that tort law is being misused here. I am concerned that the tort system not be expanded to purposes for which it was not intended, to the point where the system might collapse.” Even the professional organization of the plaintiff’s bar, the American Trial Lawyers Association (ATLA), is shying away from any association with this kind of suit, to the disappointment of Windle Turley, who hoped it would take a strong stand of support.

Product-liability law has come under attack in the past few years as an unfair burden on the business community, a hindrance to industrial expansion and innovation, and an economic menace perpetrated by radical judges and ambulance-chasing lawyers. Although the basis for product liability is derived from ancient common law, it has undergone tremendous development and change in the past thirty years, with courts both widening the scope of corporate liability and easing the consumer’s burden of proof. The increased popularity of such suits, and celebrated monetary awards made by juries (often later reduced by the judge), are precipitating a strong backlash. The legislatures of more than twenty states are considering or have passed product-liability “reform” bills, setting statutes of limitation, monetary-award ceilings, and other restrictions. Congress is considering a similar reform bill. Faced with this kind of public sentiment, the ATLA appears unwilling to lend support to a legal tactic that might further damage the reputation of product-liability law.

Another, larger, topic of concern is whether the courts should be handling gun-control decisions at all. Are courts the proper forum for arbitrating the merits of gun control, or should this public-policy decision be made only by the nation’s elected representatives? To some, this is just another instance of the courts’ meddling in policy and political issues, as they did in busing and abortion–trampling on the balance of power, ruling by judicial fiat.

It is the duty of the courts to make the law responsive to change and to rescue the public from the legislature’s failure of nerve, say the litigation’s supporters. But the legislatures have not failed, they have acted, the defendants reply: there are hundreds of federal, state, and local ordinances governing the possession of handguns. Congress and the states have never passed a strong, comprehensive gun-control measure because they have good reason not to: the American people don’t want it. Look at the defeat of the California ballot initiative last November, they say. The inaction of the legislatures is a choice that the courts must not impinge upon. “If there is a proper sociological basis for gun control, lawmakers should pass a law,” says David Maclay, legal counsel for Sturm Ruger & Co., Inc., a large handgun-manufacturing company. “They have not. That is proof to me that there isn’t the proper sociological basis.” Gun-control advocates view the legislatures as bodies that have sold their souls to the gun lobbyists, and look to the courtroom as a sanctuary of reason, where judges and juries cannot be so easily influenced.

The National Rifle Association is uncharacteristically keeping to the sidelines in this stage of the legal proceedings, although it naturally has strong opinions on the matter, and is watching developments closely. Michael McCabe, the association’s general counsel, says, “It is inconceivable to me that a case could be won and upheld on appeal–the courts wouldn’t sanction the legal theory or have the temerity to interfere with the prerogative of the legislature.” But NRA lawyers are in consultation with the defense attorneys, and should any of the cases reach the appeal stage, the NRA will probably file an amicus curiae brief.

It would certainly be in the interests of the manufacturers for the NRA to dismiss the cases as a preposterous scare, because keeping calm will help keep the gunmakers’ insurance rates from soaring. Spiraling insurance costs are a key element of the gun-control-by-litigation strategy. They are the mightiest club that can be held over the heads of the handgun industry–not a banning, not a restraining order, just enormous and continuous financial risk. If the courts place responsibility on the manufacturers to pay for damages, insurance companies will have to re-evaluate policies completely and raise premiums, according to James Coonan, of Joseph Chiarello & Co., Inc., a brokerage house in New York that handles the insurance needs of more than twenty medium-sized gun manufacturers, including several being taken to court in the new lawsuits. “The exposure to risk is so farfetched,” says Coonan, “that a rating approach is almost impossible.” The insurers will no doubt think of something–probably putting the manufacturers into a special ultra-high-risk liability pool. It is the hope of Speiser and Turley that the insurance companies will put pressure on the gunmakers either to curtail their marketing of handguns severely, and so shield themselves from potential liability exposure, or to stop making the Saturday Night Special variety of handgun completely, for their own financial good.

THE ECONOMIC REALM of this strategy is almost as complicated as the legal one. First, in the case of lawsuits against European manufacturers, there are the myriad difficulties of pursuing litigation against a foreign corporation, and then, if the plaintiffs win, the rigma-role of collecting damages through foreign insurers. As for lawsuits against domestic manufacturers, although there are a dozen or so large gunmakers (including Smith & Wesson, Colt, Sturm Ruger, and Charter Arms), much of the rest of the industry is composed of small shops in plants not much bigger than overgrown garages. Faced with the kinds of risks promised by these lawsuits, they will either go without insurance or go bankrupt. While gun-control activists might applaud their demise, others fear the loss of jobs and tax revenues.

There is always the possibility that gunmakers will weigh their potential liability losses against the size and elasticity of their market, and decide that it is still worth selling Saturday Night Specials to a clientele willing to pay an increased price. As it is, handgun prices are sure to rise, to absorb the legal fees the current lawsuits are costing the manufacturers. One gun-company president, David Ecker, of Charter Arms, in Stratford, Connecticut (defendant in one of Turley’s suits), believes that the whole idea of making handguns so expensive that they can no longer be purchased freely by everyone is downright discrimination against the poor.

But the current lawsuits have a long road ahead before they seriously threaten the future of handgun manufacturers. The defendants in each case are asking the court to dismiss the suits against them, and though no judge has yet thrown out one of the important test cases, even Turley expects that some will be dismissed on points of law. Matters of fact might not be accepted by a jury, which could return a verdict of “no cause for action” against the manufacturers. Turley intends to have to endure several losses, but he is confident that his use of product-liability law will eventually prevail.

Should the plaintiffs win in a jury trial, the defendants will certainly appeal to a higher state court. The Brady case is to be tried in the federal district court for Washington, D.C., and the appeal would go to a panel of judges on the U.S. Court of Appeals. Their decision would become a federal precedent, which, while not binding on the state courts, would provide a strong influence. Though the cases will certainly be carried to the state supreme courts, none is likely to be heard before the U.S. Supreme Court, according to legal experts. As complicated as the cases are, they do not hinge on esoteric points of law that need definitive interpretation. In years past, the Supreme Court has refused to consider almost every product-liability case brought to it, and will probably do so again.

If the prevailing decisions of the courts turn out to be favorable to the plaintiffs, the gun suppliers might try to obtain a legislative remedy for their problems, asking for a special bill that would remove liability from their shoulders. Lobbyists for the gun industry might well ask their representatives to introduce such legislation. New bills might be modeled on the product-liability reform bills circulating now at the state and federal levels, or even be attached to them, but legal observers agree that they would be more effective on the state than on the national level. Even then, they would be difficult bills to draft if the courts of that state or any other had already placed liability on gunmakers; and any bill, even if it were successfully drafted and passed, could be challenged and brought back into court.

Stein’s and Corboy’s cases are still in their preliminary stages and at least a year away from trial. The first of Turley’s cases should come to trial by the end of this year. It will be some time before the greatest hopes of the plaintiffs or, the worst fears of the defendants can be realized; in the meantime, the deadly use of handguns will continue.

Elaine F. Weiss, a writer living in Cambridge, recently completed a book about rural New England.

Weiss, Elaine F.

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