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Wednesday, Jul. 05, 2000

We've learned from the tobacco cases that for plaintiffs to prevail, mass tort suits should be scripted like old westerns. Juries and judges are more inclined to give money to plaintiffs if they can be made to believe the defendant has some basic character flaw. With the black hat on the defendant, juries can view the rest of the trial as they would a Clint Eastwood movie -- the bad guy gets what he deserves, even if some basic legal niceties are ignored in the process.

The trick for plaintiffs' attorneys, then, is to turn the trial into a morality play, as opposed to an engineering or chemistry lesson. Juries responded with thinly-veiled fury when they learned Big Tobacco's most dangerous product was not the cigarettes they manufactured but the lies and misrepresentations they manufactured with equal zeal.

What worked against Big Tobacco may now work against handgun manufacturers. In Hamilton v. Accu-tek, now on appeal to the Second Circuit Court of Appeals, a federal jury found each of three handgun manufacturers partially liable for the death of a young Brooklyn man, Steven Fox. The Second Circuit is faced with a very unusual jury verdict. No one denied that the plaintiff was killed by a .25 caliber bullet. But the jury could not determine which of five manufacturers made the gun, or when it was made. It could not pinpoint to which one of hundreds of gun wholesalers the manufacturer had sold the gun. Nor could it determine to which of tens of thousands federal firearm licensed dealers (FFLs) the wholesaler sold the gun in turn. Indeed virtually all the jury did know was that Fox's murderer bought the gun from the trunk of a car owned by a man (not an FFL) who said he came from "down South."

"Flooding" Southern States With Guns

Fox's lawyer, Elisa Barnes, argued that handgun manufacturers were "flooding" Southern states with guns. Because there are very few restrictions on multiple gun purchases in the South, one can legally purchase a dozen guns in Georgia, drive up I-95, and sell them to people in New York who can't buy a gun legally (like felons). Without this outside source of guns, it would be much more difficult for felons to buy guns in New York. Barnes accused the handgun manufacturers of knowing that their strong gun sales in the South were supported by gun trafficking. She urged that each defendant should be held liable according to its share of the national handgun market.

The problem was that Barnes produced no evidence to support her specific allegation -- that companies knew or intended that guns sold in the South be used by criminals up North. The defendants reasonably responded that they didn't know what happened to their guns after they were sold to wholesale distributors in Georgia, New York, or anywhere else. So Barnes managed to turn the companies' own defense against them, arguing that by choosing not to find out what happened to their guns after they left the factory, the companies were choosing "profits over lives." Her gambit worked. A former Smith & Wesson executive testified that gun manufacturers could have entered into distribution agreements with their wholesalers barring them from selling to retailers associated with a high proportion of crime guns. At trial, the gun companies denied being able to control their retailers. These denials proved no more compelling than claims by tobacco executives that cigarettes were not addictive during the 1994 Senate hearings. The jury simply cared whether the manufacturers evinced indifference or concern.

The jury's reaction to the gun manufacturers' ostrich strategy is understandable. A natural response to any tragedy is to refocus anger on a wrongdoer, even if that wrongdoing is unrelated to the tragedy itself. The jury's conclusion that some gun manufacturers are callous in the face of gun violence is probably true. As a matter of law, however, we still have to ask, "So what?" Steven Fox had a claim in tort law only if the gun manufacturers' callousness caused his injury. And there is no reason to believe Barnes did, or even could prove causation.

Studies Of Guns Sales

At trial, Barnes introduced studies from the U.S. Government suggesting that up to half of the guns used in the commission of a crime were sold by an FFL within the last three years. That means manufacturers, even if they could influence how retailers sell guns, could affect at most 50 percent of the guns used to commit crimes. (Careful murderers, for obvious reasons, prefer stolen guns.) But even assuming half a loaf is better than none, what practicable steps are available to a gun manufacturer seeking to affect how a retailer sells his product? Barnes proposed three reforms: manufacturers should insist that wholesalers not sell to retailers who: (1) sell at gun shows; (2) sell out of their homes or cars; and (3) are linked to a high number of guns used in crimes. How much of the loaf would that get us? No one knows.

The vast majority of new guns sold in America are sold through stores, not at gun shows or from the backs of cars. So the only proposed reform that might take a bite out of crime is Number 3. And the real question, hidden inside Hamilton, is whether gun manufacturers can not only do a better job of policing gun retailers than the ATF, but do it so well as to decrease the flow of guns to criminals. There is no reason to believe manufacturers are especially well suited to monitor how retailers are performing the background checks and record keeping required by federal law. Not only is such monitoring extremely expensive (and fraught with legal complications) but in order to be effective, it must be achieved through the insulating layer of the wholesalers -- the manufacturers' only point of contact in the system.

Throughout the Hamilton trial, no one focused on how a sincere expression of concern by gun manufacturers might have made a difference to Fox. And the case, if left undisturbed by the Second Circuit, would make tort liability turn on whether you expressed indifference about injuries you didn't cause, as opposed to whether you caused those injuries in the first place. Why should we care so long as gun manufacturers are achieving the pariah status they so richly deserve? Because making tort liability turn on the character, and not the consequences, of a defendant's acts has real-world consequences. The steps proposed by Barnes may not affect how criminals get guns, but they could affect the price of guns for everyone because monitoring is expensive, and cutting off selected dealers -- regardless of fault -- will increase the cost of distributing handguns. But then what Hamilton will really have achieved is a tax on the price of guns. Of course, an increase in the cost of handguns will, on the margin, reduce the number of handguns purchased by law-abiding citizens and criminals, and all sorts of gun injuries would be prevented. This is, in my opinion, a wonderful result, and I wish Congress would institute a national gun tax tomorrow. But the legal duty announced in Hamilton -- that a manufacturer must express concern for things outside of its control -- is a pretense, and pretense is a bad way to achieve the right result.

Anthony J. Sebok is a professor of law at Brooklyn Law School.

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