By Robert M. Hausman
Court Rules Industry Can be Sued On Nuisance Theory
In the first victory of any significance for the small arms industry’s antagonists in the municipal suits, the Illinois Appellate Court has ruled that manufacturers and distributors can be sued on the grounds that their products create a public nuisance.
The decision allows the family of a slain Chicago policeman (Michael Ceriale) and relatives of two others killed with firearms to press their claim in Cook County Circuit Court that manufacturers and distributors have “nurtured a climate of violence” in the Chicago area.
Writing for the three-member panel, Appellate Judge William Cousins Jr. ruled: “In our view, a reasonable trier of fact could find that the criminal misuse of guns killing persons were occurrences the defendants knew would result or were substantially certain to result from the defendants’ alleged conduct.”
Of the more than 30 reckless suits filed against the industry, this was the first case in which the anti’s have won a favorable appellate decision.
“This is really a very strong vindication of the (anti-gun) strategy,” said anti-gun attorney David Kairys. “The way the manufacturers are endangering the public health and safety is that they are knowingly and intentionally supplying the criminal market. It’s really that simple.” Kairys was the originator of the idea of suing the industry based on the “public nuisance” theory. He is a law professor at Temple University.
In addition to allowing the Ceriale case to proceed, the Appellate court’s decision could also influence a similar suit brought by the city of Chicago, pending before the same panel. The city suit, which also raised nuisance issues, was dismissed in September 2000 by a Cook County judge. Lawyers for the city said that the appellate decision in the Ceriale case-while not binding- “gives every indication” that the lawsuit will be reinstated.
The Chicago case had been dismissed by Circuit Judge Stephen Schiller, ruling Chicago had failed to show that it had been vigorous in pursuing enforcement of gun laws on the books.
In the Ceriale case, the Appellate Court ruled that if the allegations are proved true, “defendants have the power to control the purposeful creation and maintenance of an illegal secondary market by oversupplying the areas around Chicago with handguns.” Failure to exercise that power would violate the public’s rights, even if the gunmakers were following the letter of the law with regard to manufacture and distribution of guns, the court said.
James Dorr, an attorney for two of the defendant firms in the Ceriale case, said, “I’m sure we’ll consider” appealing the decision to the Illinois Supreme Court.
The National Rifle Association stated,” This latest ruling demonstrates there are still misguided jurists out there willing to defy both common sense and legal precedent.” The NRA also called for support and passage of H.R. 2037, the reckless lawsuit preemption bill introduced by U.S. Reps. Cliff Stearns (R-FL) and Chris John (D-LA).
The Hunting and Shooting Sports Heritage Fund (the firearms industry’s pro-active legal and public relations effort) has pledged its financial support to an appeal of the appellate decision and has invited other industries and organizations to aid in the effort, as it feels that if the decision stands, there would be negative consequences for manufacturers and distributors in virtually all industries.
“If this extraordinary legal theory is allowed to go forward, it’s ‘Katie bar the door,’ for the manufacturer or retailer of any consumer product, if that product’s use in a crime might be reasonably foreseen,” said Robert Delfay, president of the National Shooting Sports Foundation, a firearms industry trade group. “This ruling is doubtless being cheered by personal injury lawyers who can look forward to suing gasoline refiners, match manufacturers, auto makers, champagne bottlers, box cutter makers and any other supplier of a legitimate consumer product for any foreseeable use of their products in crime.”
In a ruling in a similar case, the city of Philadelphia, PA, was ruled unable to sue the gun industry for negligently distributing its products in a way that creates a public nuisance because “gun manufacturers are under no legal duty to protect citizens from the deliberate and unlawful use of their products,” the Third U.S. Circuit Court of Appeals ruled recently.
The city’s suit was fatally flawed, the court said, because it couldn’t show that the gun manufacturers were the “proximate cause” of the harm suffered by the city. Instead, the court said, the “causal chain” necessary to connect gun makers and gun crimes is “too attenuated.”
The unanimous three-judge panel also rejected negligence and negligent entrustment claims brought by the plaintiffs- the city and five civic organizations.
The ruling upholds a December 2000 decision by U.S. District judge Berle M. Schiller of the Eastern District of Pennsylvania.
Trying a different approach, Gun Industry Watch, a project of the anti-gun group, Alliance for Justice, has asked the Federal Trade Commission (FTC) to expand its probe of biological weapons’ websites to include firearms.
At the beginning of the year, the FTC sent e-mails to a number of websites claiming to offer protection from biological and nuclear agents and warned them that it is illegal to make false claims about the health and safety offered by their products. The Gun Industry Watch letter claimed that gun manufacturers should be held to the same standards.
To justify her request, Alliance for Justice president Nam Aron, cited typical anti-gun biased studies in her letter to the FTC’s director of consumer protection, Howard Beales. “By these standards, gun manufacturers and retailers are in violation of the law any time they claim that the purchase of firearms will help protect consumers. Scientific data indicates that a gun in the home is 22 times more likely to be used in a suicide, accidental shooting, or homicide, than in self-defense,” Aron wrote.
Restrictions Reported On .50 Cal Rifle Exports
The Violence Policy Center says it has been successful in influencing the U.S. Department of State to restrict the export of .50 caliber rifles for sale to civilians abroad. The anti-gun group says it has been working “closely” with Reps. Henry Waxman (D-CA) and Rod Blagojevich (D-IL), along with Sen. Dianne Feinstein (D-CA) to get a variety of restrictions placed on such rifles.
Rep. Waxman recently sent a letter to U.S. Secretary of State Colin Powell commending Powell on his willingness to “offend the gun lobby.” The letter notes representatives of the State Dept.’s Office of Defense Trade Controls met with Waxman’s staff and notified them that the Department has suspended indefinitely further approval of applications to export .50 caliber rifles to foreign individuals or commercial resellers in foreign countries in light of the September 11th incidents.
Waxman’s letter went on to note that applications to export seventy-five .50 cal. rifles were approved for export to foreign dealers in 2001. Prior to the decision to suspend, 16 had been shipped. The State Dept. later suspended the export of the remaining 59 rifles.
Banning Youth Guns
Flush with an apparent victory in influencing the imposition of export restrictions on .50 caliber rifles, the Violence Policy Center has issued a 21-page report, “A .22 for Christmas, How the Gun Industry Designs and Markets Firearms for Children and Youth.”
“The gun industry promises that a gun in a child’s hand is a shortcut to responsibility and maturity. In fact, the only guarantee is one of increased risk of death and injury,” states Martin Langley, a VPC policy analyst and the study’s author. “The firearms industry is attempting to secure their own survival by endangering that of our children.”
Taking offense at statements such as that appearing in the August 2001 issue of Handguns magazine that, “Children are our salvation in the fight for liberty and the preservation of the shooting sports,” the report complains of the marketing of “an increasing number” of youth model firearms.
As “evidence” of the industry’s campaign to attract children to the “gun culture,” the VPC reports mentions firearms advertising in youth magazines such as Boy’s Life and the NRA’s publication of Insights magazine which is edited for the younger set; the Eddie Eagle program which the study’s author calls a “marketing tool disguised as a safety program; using video games to put virtual guns in the hands of potential customers; and using public school wildlife management lessons to develop interest in hunting and firearms.
The report further complains of firearms manufacturers’ “open acknowledgement of their cultivation of the youth market.” To back this up it uses quotes such as that of Chris Johnson, vp, Rogue Rifle Company, producer of a diminutive single shot .22 caliber rifle: “It’s (the Chipmunk bolt-action rifle) a great father/son, father/daughter rifle because children can’t cock the rifle by themselves until they’re seven or eight years old…Christmas is important, but don’t forget about birthdays. Rimfires make great gifts all year long.”
The report also quotes from an “I’m the NRA” ad featuring pro-gun actor Tom Selleck which promised, “Shooting teaches young people good things. Because all good rules for shooting are good rules for life.” To counter this, the VPC report mentions several instances of youths shooting others or getting into hunting accidents. It also mentions the risk to youth of lead poisoning it says shooting ranges pose.
In conclusion, the report calls for federal law to be modified to make it illegal for anyone under the age of 18 to possess a long gun and for anyone under 21 to possess a handgun, apparently under any circumstances. The report ends with a list of 40 youth model firearms produced by 20 manufacturers “To show the scope of the effort by the industry to market firearms to children.”
Extreme Shock Ammo
Among the most innovative new products to hit the market recently is Extreme Shock Ammunition. The lead-free NyTrillium composite product, is called “The world’s premier anti-terrorist round.”
The result of ten years of R&D effort, the star-shaped composite bullet fragments upon impact and transfers energy into the target at a faster rate than conventional hollow-points. Engineered to expend maximum energy into soft targets, the bullet mass becomes an expanding rotational cone of NyTrillium matrix particles causing neurological collapse to the central nervous system.
The expended bullet, however, does not fragment into razor sharp pieces within soft tissue as some other rounds are known to do, reducing the risks to EMS personnel. The expended projectile is typically contained within soft tissue targets. The round disintegrates when it hits hard targets, such as the interior walls of a dwelling and airplane skins.
For department training use, the rounds’ lead-free construction eliminates hazardous waste issues and the frangible characteristics reduce wear and tear on steel targets and lessen ricochet hazards. Extreme Shock is available in a full range of rifle and handgun calibers, in both full-power and subsonic loads. For more information, call (877) 337-6772 or go to: www.extremeshockusa.com.
The Los Angeles Police Dept. has selected TASER Int’l’s. ADVANCED TASER M26 to replace older Tasertron units. Some 500 units were ordered, to replace 250 of the older devices. The total expenditure is about $225,000. The units transmit electrical impulses that temporarily disrupt the body’s central nervous system.
“The LAPD was one of the most significant users of earlier generation TASER technology, and probably has more field experience with it than any other U.S. department,” commented Rick Smith, TASER’s CEO. “Their selection of our product as a less-lethal weapon platform should further accelerate the adoption by other agencies. The advanced model is nearly four times more powerful than LAPD’s previously used TASER’s. The M26 has built-in laser sights and an onboard data chip to record the time and date of each firing to backup officers’ use-of-force reports.
In other news, quality handgun manufacturer Kahr Arms has made the approximately $20,000 commitment needed to join the Sporting arms & Ammunition Manufacturers Institutute (SAAMI). Counting Kahr, SAAMI’s membership now totals 23 producers of firearms, ammunition and propellants. SAAMI’s mission is to establish manufacturing standards for small arms and ammunition.
The 2001 firearms and ammunition excise tax total dropped to $175,959,000 in Fiscal Year 2001 from Fiscal Year 2000’s total of $197,840,000, according to the Bureau of Alcohol, Tobacco & Firearms.
Kathleen Townsend Kennedy, Maryland’s lieutenant governor, has given the nod for the launch of Project HomeSafe, the firearms safety effort, to begin in her state. The program will be run in cooperation with police and sheriff’s departments that will hand out free firearms safety kits including a cable-style gun lock and safety brochure. Project HomeSafe will schedule its “safety tour” truck to make stops around the state to provide safety education at the community level.
The author publishes two of the small arms industry’s most widely read trade newsletters. The International Firearms Trade covers the world firearms scene, and The New Firearms Business covers the domestic market. Visit www.FirearmsGroup.com. He may be reached at: FirearmsB@aol.com.
| This article first appeared in Small Arms Review V5N8 (May 2002) |
