Are the Lawsuits Against Gun Makers Really the Best Way to Address the Huge Costs of Gun Violence?

By BARTON ARONSON

Wednesday, Mar. 19, 2003

Across the country, lawsuits by cities against gun makers are wending their divergent ways through the court system. Last week, for example, a California judge dismissed all the gun makers from one case; three days later, a New Jersey appellate court did just the opposite, denying a similar motion to dismiss the claims against the gun makers.

We may soon be treated to trials in some of these cases. Before we are, it is worth stopping to ask whether this is really a fair way to address the enormous costs criminals who use guns impose on us all.

The Allegations of the Lawsuits: Recouping the Costs of Crime

These lawsuits follow the template forged in the states' massive settlement with the cigarette manufacturers. There, a set of political entities (the states), relying on privately retained lawyers, sued an entire industry to recoup costs allegedly imposed by that industry's legal activity.

In the gun cases, individual cities, not states, are the plaintiffs. The reason for the change is mostly political: governors can't risk alienating the wide support for gun rights in most states, but mayors deal with a very different political reality.

The lawsuits allege that gun-related violence has imposed increased costs on the cities. The lawsuits refer in passing to accidents, but the numbers show that the issue is really crime. To take a single statistic: in 1997, there were approximately 1,500 fatal accidents involving guns; in the same year, there were over five times as many gun-related homicides.

The costs imposed by crime are spread widely across city budgets. They include the costs of medical services, required to treat victims; the costs of police work, necessary for responding to and investigating crimes; and the costs of courts and jails, for processing and housing the criminals. All of the suits want the gun makers to cover some as-yet-unknown fraction of these costs.

The gun cases have been brought in dozens of states, by scores of cities, under a wide variety of legal theories. These legal theories have been countered with an equally wide array of defenses. And, as the California and New Jersey decisions illustrate, they have met a variety of legal fates. Generalizing about these cases is impossible.

Are the Gun Manufacturers Too Remote from the Damage to be Liable?

Well, almost impossible. In nearly every case, courts have had to grapple with the same issue of fundamental fairness, sometimes labeled "remoteness": Are the gun makers too far from the damage done by their products to be forced to pay for that damage?

The best (but not the only) way to think about remoteness is in terms of causation. The defendant does something in the chain of events that lead to a defendant's injury. Was the defendant's action a necessary part of the chain, such that, if the defendant hadn't acted, there would have been no injury? If so, we've established "but for" causation, a necessary condition of liability.

"But for" causation isn't good enough for liability, however. We also ask whether the nexus between the defendant's conduct and the plaintiff's injury was sufficiently close that the defendant should pay. Sometimes one party in the chain of events will be so removed from the plaintiff's injuries that we cannot calibrate, with any equity relative to the other parties, their fair share of responsibility.

But even if remoteness is addressed in other legal terms (some courts analyze it as a question of standing), the issue remains the same. A butterfly's wings beat, setting in motion a chain reaction that will result in a deadly hurricane on the other side of the world. Tragic - but should the butterfly be subject to tort liability? For the butterfly, the answer is "no." What about the gun makers?

How Guns Get to Criminals

To assess the remoteness issue, we need to understand how guns get from gun manufacturers to criminals, and how the manufacturers act in that process.

Gun manufacturers are licensed by the federal government. They are permitted to sell their guns only to distributors and wholesalers, all of whom are also licensed. The lawsuits commonly acknowledge that these transfers are conducted legally; no gun maker would risk its corporate livelihood by selling to unlicensed distributors.

Moreover, these legal transactions are the last stage in the process in which the manufacturers exercise any control over their products. Once the guns are transferred, the makers have nothing to say about where they go.

But the guns still have far to travel. The distributors and wholesalers then supply the retailers - your local gun store. Again, all the parties to these transactions are licensed, it is commonly acknowledged that nearly all of these transactions, too, are carried out legally.

Gun stores then sell to individuals. Before they do, they are required by the federal Handgun Control and Violence Protection Act (the Brady Law) to conduct a background check on a prospective buyer. If the check reveals that the buyer is, say, a convicted felon, the store must decline the sale. The majority of store sales are legal, but of course, some stores sell out the back door what they cannot sell out the front.

In the midst of all this legality, how do the bad guys get their guns? It is critical to bear in mind that many criminals are absolutely, positively, one hundred percent legal purchasers of firearms. Johnny may have committed ten armed robberies. But if he's never been caught, never been convicted, and has nothing disqualifying on his record, he can walk into any gun store in the country and buy a gun.

But if Johnny has been convicted, or is otherwise disqualified, his purchases are illegal. How does he get guns then?

The Black Market and the Gray Market For Guns

If he's like most criminals, Johnny buys them illegally on the black market, or else he steals them. Guns are built to last, and there are about 100 million handguns alone in this country, so the black market will thrive for decades even if a weapons manufacturing ceased tomorrow.

Guns often pass through a gray market involving individual sales, which are largely unregulated. A law abiding gun owner may decide, for convenience's sake, to sell his gun at a gun show. The law does not require any paper trail for such transactions, and the Brady Law's background check does not apply. (A Gunshow Accountability Act that would have required such documentation failed to pass the House in 1999). The gun show over, the gun is now gone from any radar screen.

But whether sold at a gun show, or sold more privately, or stolen, individual guns go from hand to hand, and sometimes fall into the hands of those who are prepared to either use them illegally or provide them (unwittingly or not) to those who will. While there are certainly some big illegal distributors in this country, most of the bad guys are small timers who get their guns from other small timers, one gun at a time.

Far, Far from Gun Manufacturers

We are far enough away from the gun manufacturers so that we can now look back and ask: isn't this far enough? Gun makers are federal licensees selling a legal product. The only sales in which they participate are to other federal licensees, after which they can exercise no control over their product.

Any individual gun will usually pass, legally, through at least two more hands (a wholesaler's and a retailer's), and often several more, before being involved (if ever) in an illegal sale. The manufacturer has nothing to say about any of this. And of course, for any damage to be done, some willful criminal must act.

What is the gun makers' fair share of liability here? They don't pull triggers; they don't sell to the people who do; they don't even sell to the people who turn around and sell to the people who do. The guns they sell are legal, a legislative choice backed by public sentiment both wide and deep. The sales in which they directly participate are also legal. The guns are not alleged to be defective, in the sense that they don't work as they are supposed to.

Gun manufacturers know, of course, that their products will be willfully misused. So do knife makers and auto makers. If a citizen buys a car with the intent of hitting another person, it is inconceivable that the auto maker would be held liable. But that is precisely the implication of the cities' lawsuit.

It is simply impossible to imagine these lawsuits divorced from the sentiments that surround them. Everyone is outraged, and rightly so, about the costs of crime. Everyone is frustrated at the inability to recover those costs from the people who inflict them - the criminals. And many are unhappy at the firearms industry's frequently thoughtless rhetoric and instinctive opposition to any form of gun control.

But outrage and frustration are not ingredients with which to brew novel theories of liability. Gun makers are engaged in a legal business. They are impossibly remote, as a legal matter, from the damage done by criminals. If we don't like that, it is a matter for us and the legislature, not litigants and tort law.


Barton Aronson is currently a prosecutor in Washington, D.C. Prior to that, he was in private practice in Washington, D.C. and an Assistant District Attorney in Massachusetts. The opinions expressed in this article are his own.

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