For the first time since the assault-weapons ban five years ago, firearms manufacturers are on the defensive.
Cities are starting to bring lawsuits, the White House is cranking up efforts to rein in sales at gun conventions, and the industry faces the threat of an increasing number of lawsuits brought by individuals who are the victims of gun violence.
Last week, antigun advocates were particularly buoyed by a New York jury verdict that found a group of gun manufacturers marketed their arms negligently and were directly responsible for three killings. "I am sure this is going to shake the industry to its foundations," says Dennis Henigan, legal director for the Center to Prevent Handgun Violence in Washington.
As a result of the Brooklyn verdict, many experts expect other victims of handgun violence to be encouraged to file lawsuits. Mr. Henigan compares the lawsuit to the tobacco litigation, which took years of trials before plaintiffs began to find legal theories that might succeed. "This is going to send a message to the plaintiffs' bar to take a fresh look," he says.
Even the industry, which plans to appeal the verdict, says the defeat could cause problems. "The public perception would be that we lost this case - even if we win on appeal - and that would fuel these lawsuits against us," says Richard Feldman of the American Sports Shooting Council, a Washington organization that represents gun manufacturers.
In addition, the verdict might spark other cities and states to file suits. On Feb. 4, Atlanta joined Chicago, Miami-Dade County, and Bridgeport, Conn., in filing suit against the firearms companies. In six months, legal experts expect another dozen lawsuits. "The win might make them come quicker," says David Kairys, a professor at Temple University Law School in Philadelphia who came up with the original concept of cities suing the gun companies.
Long road ahead
Despite the Brooklyn verdict, winning the lawsuits may still be a challenge. A recent survey by DecisionQuest, a Los Angeles trial consultant, found 62 percent of the people it surveyed were against the lawsuits. "Unlike product liability, where people feel threatened, here they are concerned that their civil liberties are being impinged on," says Philip Anthony, chief executive of DecisionQuest, which does not represent any gun manufacturers.
Some key organizations are starting to get involved in the fight. Last week, the National Rifle Association (NRA), one of the nation's most potent interest groups, decided to put some of its energy into fighting the lawsuits. "If these lawsuits were left unchecked they could impact the ability of an individual to buy firearms," says Jim Manown, an NRA spokesman.
The NRA's strategy is to try to get state legislatures to pass legislation that would preempt local authorities from bringing such lawsuits. Mr. Manown predicts that in the next few months at least six states will enact such preemptive laws, which would include pending lawsuits. "There could be a couple of dozen by the end of the year," he says.
The NRA's strategy could be costly, though. Each state has a separate constitution, so each law must be tailored to its particular state. In addition, the new laws are likely to be challenged since they would offer legal protection to a specific industry - something even the tobacco industry has not gotten. "Constitutional scholars get teary-eyed over cases like this," says Daniel Abel, a partner in the New Orleans law firm of Gauthier Downing Labarre Beiser Dean, which is involved in the city's lawsuit against the industry.
The NRA's first attempt is in Georgia, where the governor recently signed the legislation into law. The prospect of the bill passing forced Atlanta Mayor Bill Campbell to file his city's lawsuit quickly, and he will challenge the new law in court. "We think it's up to the courts to decide and not the General Assembly," says Nick Gold, a spokesman for the mayor.
The Georgia lawsuit contends that the manufacturers are producing products that lack safety features, carry inadequate warnings, and can be fired by unauthorized users. This is similar to suits filed by New Orleans, Miami, and Bridgeport.
Yet suits filed under this theory have not done well. Last month, in California's Alameda County, Beretta USA successfully defended itself against a claim that its guns should have "smart gun" technology or some other system to prevent misuse.
Meanwhile, Chicago is suing under a "public nuisance" law, claiming that gun manufacturers are circumventing tough city laws by selling their guns in suburban gun shops, where they eventually make their way into the city.
The Chicago legal theory, which is based on distribution, is similar to the one used in the Brooklyn case, which claims "negligent marketing." The plaintiffs attempted to prove that manufacturers ship an excessive amount of guns to Southern states with weak handgun laws. Illegal traffickers then resell them in northern states. The defense argues they are being blamed for crimes committed by individuals.