February 2000, Liberty magazine, pp. 35-36 

Strongarm Suits

 By David Kopel

Gun prohibition groups have had a rough time in recent years. Even after the Columbine High School murders, they were unable to push any major new anti-gun laws through Congress, or through any states other than California. The demand for new laws to "do something" about Columbine ran into the problem that none of the proposed new laws (like destroying gun shows through administrative regulation) could possibly have prevented Columbine.

But the anti-gun groups are nothing if not creative. Thus, the Center to Prevent Handgun Violence (the litigation arm of Handgun Control, Inc.) has orchestrated lawsuits all over the country against handgun manufacturers. The suits have been brought by the CPHV in conjunction with the twenty-nine big-city mayors, including the mayors of New Orleans, Chicago, Miami, and St. Louis.

In late December, the President Clinton and Andrew Cuomo (the Secretary of Housing and Urban Development) announced that HUD would join the suits too, unless gun manufacturers surrendered to the plaintiffs' demands.

This announcement meant that HUD deceived Congress on August 4, 1999, when HUD's General Counsel, Gail Laster, told the House Subcommittee on Criminal Justice, Drug Policy, and Human Resources: "I repeat, HUD does not plan to bring any action on its own against the gun industry." And "HUD has no authority on its own to bring litigation." Since HUD will be filing suit in the name of thousands of public housing authorities throughout the United States, rather than in its own name, Ms. Laster's testimony was deliberately misleading, but not, strictly speaking, a flat-out lie.

Political analysts speculated that the HUD lawsuit was an effort to raise Cuomo's profile, since he is rumored to be a leading contender for the Vice Presidency, should Al Gore win the Presidential nomination. Additionally, Mr. Clinton appeared to be displaying the antipathy to gun owners which is common among rapists and other violent predators.

If we put aside the motives of the suitors, we find that the suits are vexatious, and based on untenable theories.

First, there is the allegation that handgun companies have conspired to keep their products from having various childproof devices, or devices to keep unauthorized persons from using the guns.

These kinds of product liability suits have already been tried in numerous courts, with private plaintiffs abetted by the CPHV. The cases have been a universal failure. For example, in the 1999 California case of Dix v. Beretta, not only did the CPHV lose, the California trial court ordered the CPHV to pay part of Beretta's litigation costs.

The cases founder on the fact that the safety devices which the CPHV demands make the gun less reliable. For example, a "magazine disconnect" prevents a gun from firing even if there is bullet in the chamber, unless the magazine (ammunition clip) is in the gun. So if someone drops the magazine clip while attempting to put it in the gun in an emergency, the gun becomes of no use, and the gun-owner could be killed by a criminal. For this reason, many police officers refuse to buy guns with magazine disconnects.

Other devices which the CPHV demands haven't been invented yet (like palm print recognition devices embedded in a gun's grip), and even if they were invented, many users would not want to risk their lives on a microchip functioning instantly and perfectly.

Even simpler devices are not foolproof. At December 1998 mayors' meeting, CPHV attorney Dennis Henigan attempted to demonstrate how easy it is to remove a trigger lock in an emergency, but he wasn't able to get it off the gun.

Spurred by an earlier round of failed suits by anti-gun groups, many states in the 1980s enacted "defectless product liability" laws which prevent product liability suits from being brought against firearms which work as intended.

Thus, some of the city suits evade the product liability issue by raising claims of "negligent marketing" and "public nuisance"--claiming that the handgun companies deliberately supply handguns to criminals.

One supposed proof of this claim is that in recent decades, handgun companies have brought out new models which are smaller and more powerful than previous models. This is certainly true, but it is hardly proof that the guns are made for criminals. Thirty-one states allow adults who can pass a background check and a safety class to obtain a permit to carry a handgun for protection. Many of the other nineteen allow handgun carrying in certain circumstances even without a permit (for example, in one's car while traveling).

Thus, there is a large market of lawful purchasers who are especially interested in portable guns with enough stopping power to stop a criminal. The city lawsuits ignore this fact. The refusal to acknowledge the legitimacy of defensive gun sales is surprising, since CPHV head Sarah Brady opposes all non-government defensive gun ownership. "To me, the only reason for guns in civilian hands is for sporting purposes," she explains. (Quoted in Tom Jackson, "Keeping the Battle Alive," Tampa Tribune, Oct. 21, 1993.)

In a direct assault on the First Amendment, suits have also been brought against three firearms industry trade associations, who do not sell guns; they do nothing other than educate the public and lobby against various measures pushed by the gun prohibition groups.

While the lawsuits are unlikely to succeed, the sheer cost of litigation could be fatal to many handgun companies, as former Philadelphia Mayor Ed Rendell (the first mayor to consider a lawsuit) happily noted. Even if all the gun companies in America were put together, they would not constitute a single Fortune 500 company.

Thus, the lawsuits are cleverly structured to prevent the defendants from filing a motion to consolidate the cases (which would reduce legal costs). And the lawyers working at CPHV's direction have been smart enough not to sue ammunition manufacturers, who are much wealthier than gun companies, and who could easily afford to pay for lawyers to handle every case from start to finish.

So unlike the cigarette companies, the handgun companies cannot buy off the tort lawyers and politicians by giving them a share of the companies' profits. And unlike cigarette executives, handgun company officers have never claimed that handguns do not kill.

But besides killing, handguns also save many innocent lives (sometimes by killing criminals). That is why every police department in America buys handguns from the very same companies that the mayors are suing.  How hypocritical for the mayors to sue the very companies which enhance public safety by providing the mayors' own police departments with firearms.

Indeed, most of these mayors are protected 24 hours a day by taxpayer-paid police bodyguards who are outfitted with firearms supplied by the lawsuit victims. So of course are Andrew Cuomo and Bill Clinton, who are guarded by the Secret Service. Perhaps, Clinton, Cuomo, and the gun-hating Mayors should set a good example by insisting that their own bodyguards install trigger locks, palm-print readers, and other "safety" devices which make guns unreliable.

Legislation to outlaw the abusive lawsuits has become law in fourteen states, including Texas, where Gov. Bush enthusiastically signed the bill. (In fact, he signed just a few weeks after Columbine.) Similar national legislation has been proposed  Rep. Bob Barr (R-Ga.). Notably, the legislation is supported by groups like the United States Chamber of Commerce, which have little interest in guns per se, but which recognize that if the gun cases succeed, then companies that make alcohol, automobiles, high-fat food, knives, and many other products will be next in line for tort lawyer predation.

Although the CPHV protests that the legislative reforms interferes with its litigation rights, there is no right to bring vexatious litigation which chills the exercise of constitutional rights; that is why the Supreme Court, in the 1964 case New York Times v. Sullivan, restricted libel suits which chilled First Amendment rights. Legislation to ban lawsuit abuse reaffirms the fundamental principle of our republican government that policy decisions about important matters (such as banning guns) are the responsibility of the legislature acting under the Constitution; a collection of tort lawyers, mayors, a cabinet secretary, and a violent criminal should not be allowed to usurp legislative power.    

Dave Kopel is a Research Director of the Independence Institute, http://independenceinstitute.net. His February 1999 debate with a CPHV representative can be seen at the Cato Institute website, http://www.cato.org.

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