City Lawsuits Against Gun Industry Will Pressure Firearm Manufacturers to Design Safer Weapons and Sell Guns


I. CITY LAWSUITS AGAINST THE GUN INDUSTRY WILL PRESSURE FIREARM MANUFACTURERS TO DESIGN SAFER WEAPONS AND SELL GUNS RESPONSIBLY

Guns are the cause of a tragic and avoidable public health crisis in the United States.Shooting deaths and injuries of children have reached epidemic proportions. No other industrialized country in the world approaches the number of firearm-related deaths that occur in the United States. Death among American children under 15 years old is 12 times higher than the combined death rate for 25 other industrialized countries.[1] Between 1993 and 1995, firearms were the number two cause of death for children aged 10-14 in the nation. They are currently the leading cause of death in California, Alaska, Louisiana, Maryland, Nevada and Virginia.[2] These alarming statistics are caused, in part, by the irresponsible and deliberate actions of firearm manufacturers (hereinafter collectively referred to as "manufacturers" or "industry").

Firearm manufacturers are directly responsible for a substantial number of unintentional shooting deaths and injuries because they have chosen not to incorporate feasible safety features into the design of their weapons. Despite their ability to decrease the incidences of unintentional discharge, manufacturers have consciously decided not to make guns safer.

Firearm manufacturers cause many intentional shooting deaths and injuries by selling firearms irresponsibly so that guns are available to criminals, juveniles and other unauthorized users. The industry has increased the ability of unauthorized persons to have access to firearms through their marketing, distribution and sales of guns. Unlike manufacturers of other dangerous products, they place few controls on the sale of guns. As a result of easy access and widespread misuse of weapons, local governments and individual tax payers have borne the fiscal responsibility for firearm-related health care costs in the amount of $4 billion per year.[3]

Municipality and private lawsuits against gun makers are one way to force change upon an industry that refuses to act responsibly. Lawsuits have the potential for pressuring firearm manufacturers to make safer weapons and to sell guns responsibly by restricting unauthorized persons' access to firearms. The city lawsuits are based on well-established legal grounds traditionally relied upon by plaintiff attorneys in individual personal injury lawsuits. The local governments' actions seek to improve public safety, health and welfare and, once again, make our streets and schoolyards safe from gun violence.

A. THE FIREARM INDUSTRY CAN PREVENT UNINTENTIONAL SHOOTINGS BY INCORPORATING FEASIBLE AND EXISTING SAFETY DESIGNS INTO THEIR GUNS.

Gun shot wounds account for over 32,000 deaths and an estimated 100,000 injuries requiring hospital treatment every year. [4] Many of these deaths and injuries are caused by accidental firings. In 1994 over 1,400 deaths and 18,000 injuries requiring treatment in hospital emergency rooms occurred as the result of unintentional discharges. [5] Approximately 35 % of all unintentional firearm deaths involve users of guns who were between the ages of 13 and 16. [6] The General Accounting Office concluded in a 1991 study that weapon design was a contributing factor in one-third of all unintentional gun shot deaths and injuries. The study also concluded that about one out of every three deaths from accidental firings could be prevented by design changes or the implementation of firearm safety devices. Despite knowing that death and injury can be minimized, firearm manufacturers callously refuse to implement feasible and existing safety devices into the design of handguns.[7]

For instance, hundreds of unintentional killings occur because the user of a pistol does not know that there was a round in the chamber. The General Accounting Office estimated that 23% of unintentional firearm-related deaths occur each year because the user of the gun is not aware that a round of ammunition had been loaded into the gun's firing chamber. Unintentional shootings caused by the user not knowing that a bullet is in the chamber can be prevented, in many instances, by implementing a simple device called a chamber-loaded indicator. One type of chamber-loaded indicator is a small colored dot that appears either on the top or side of the gun to alert the user when there is a bullet in the firing chamber. The chamber loaded indicator has been installed in only a few pistols despite the fact that it is available on the market and is easily incorporated into a firearm.[8]

Another safety device called a magazine disconnect safety prevents a handgun from being fired when the magazine is removed even if there is a bullet in the chamber. This often occurs when the firearm user takes the magazine out of the gun. The user believes that the firearm is inoperable when, in fact, the gun can be fired without a magazine being inserted in it. The magazine disconnect safety has also been on the market for years and is easy to incorporate into a firearm. If incorporated into pistols, safety devices, such as the chamber loaded indicator and magazine disconnect safety, could prevent thousands of injuries and deaths each year. These safety features would reduce medical expenses and other economic costs borne by our cities and counties in excess of $170 million per year.[9]

With no regulatory agency overseeing its products, the industry is permitted to place low quality, deadly products that lack safety features into the marketplace causing thousands of deaths and injuries every year. Gunshot harm could be greatly reduced if firearm manufacturers are pressured through litigation to provide adequate warnings and incorporate safety devices into the design of their firearms. Lawsuits can be brought against the gun industry for neglecting to install feasible safety features into the weapon. Absent legislation that prohibits this type of case, such failure renders a pistol defective in design under traditional product liability law in every jurisdiction.[10] Thirteen cities and counties have sued the firearm industry under either negligence or strict liability theories for failure to install safety features and for failure to warn. Those cities include: Atlanta, Georgia;[11] Boston, Massachusetts; Bridgeport, Connecticut; Camden County, New Jersey; Camden, New Jersey; Cincinnati, Ohio;[12] Cleveland, Ohio; Gary, Indiana; Miami-Dade County, Florida; Newark, New Jersey; New Orleans, Louisiana; St. Louis, Missouri; and Wilmington, Delaware.

Similarly, 12 cities and counties in Northern and Southern California, including, Los Angeles and San Francisco, have sued the firearm industry under a sweeping state consumer protection statute that allows both an individual and a governmental entity to sue a businesses for unfair, illegal or fraudulent business practices. Bus. & Prof. Code ' 17200. Other states have similar consumer protection statutes that are not being effectively utilized for this type of lawsuit.

B. MUNICIPAL AND INDIVIDUAL LAWSUITS WILL PRESSURE THE FIREARM INDUSTRY TO DEVELOP PERSONALIZED GUN TECHNOLOGY SO THAT UNATHORIZED USERS CANNOT ACCESS A FIREARM.

A major problem with firearms is that anyone can use them. There are over 13,000 homicides and 17,000 suicides every year, many of which are committed by juveniles or other individuals that should not have access to a weapon.[13]

Adolescent homicides and suicides are usually committed with firearms that the adolescent has taken from his or her home. In the United States, the rate at which youths aged 10-19 years commit suicide with firearms is once every six hours.[14] In fact, the odds that a potentially suicidal minor will kill themselves doubles when a gun is stored in the home.[15]

Access to guns by unauthorized users can be restricted by designing guns that incorporate personalized gun or smart gun technology that allows only an authorized user of the gun to have access to it. This technology is feasible today and many patents have been granted for this type of technology over the last twenty years. [16]In April 1994 the National Institute of Justice (NIJ) funded the Smart Gun Technology Project (hereinafter referred to as the "Project") to determine the feasibility of firearms implementing smart gun technology. The Project identified three categories of technologically feasible personalized safety systems: automated identification technologies; biometric technologies; and miscellaneous technologies.[17]

Despite the ability to make a smart gun, no firearm manufacturer has designed and sold a personalized gun even though there is strong public support for childproofing of firearms.[18] In a recent national survey 88% of the respondents supported childproofing weapons and 71 % of the respondents favored the implementation of personalized gun technology.[19]

Lawyers should consider bringing a lawsuit against a manufacturer for failing to incorporate personalized gun technology into a firearm when presented with a situation in which a death or injury results from a pistol being shot by someone who should not have had access to it. This type of case can be brought under negligence and strict products liability law. With the exception of the Chicago and Michigan lawsuits, all of the city lawsuits have been premised on the smart gun theory and several individual lawsuits have also been brought against firearm manufacturers for failure to personalize guns. To date, the only case to go to trial on this issue was Dix v. Beretta.[20] The threat of this type of liability will put more pressure on manufacturers to develop a personalized gun and to help save lives.

C. THE FIREARM INDUSTRY HAS CREATED AN ILLEGITIMATE SECONDARY MARKET THAT ALLOWS CRIMINALS AND JUVENILES TO HAVE ACCESS TO FIREARMS.

Thousands of deaths every year are caused by persons who use guns despite being legally prohibited from purchasing them.[21] A recent report showed that 18% of highschool students reported that they had carried a weapon.[22] Another survey showed that 70% of all prisoners felt that they could easily obtain a firearm upon their release from prison.[23] The firearm industry knows that weapons are easily available to persons prohibited by law from purchasing them. Rather than making it more difficult for illegal users to obtain guns, the industry facilitates the problem by failing to implement reasonable controls for the distribution and sale of weapons.

There are about 65 million handguns and 250 million other firearms owned by the public.[24]Each year the industry adds an additional 2.5 million handguns to the market.[25] The industry knows that there are more handguns being sold to purchasers than can reasonably be expected to be sold to the legitimate legal market and, yet, it continues to saturate the market in order to profit from sales to illegal buyers. As a result, the firearm industry's annual sales have skyrocketed to $2.5 billion a year at the expense of the public.[26]

Firearm manufacturers, unlike responsible manufacturers of other potentially harmful products, fail to take reasonable steps to curb the incidences of misuse. In fact, the firearm manufacturer.s failure to act responsibly is a conscious decision by the industry in order to insulate themselves from liability for the foreseeable misuse of their products.[27] Manufacturers of consumer goods that know their products have a high likelihood of being abused have a duty to reduce the product's potential for misuse by employing methods to selectively distribute the product. These methods often include carefully monitoring, training and screening distributors and retailers, using only authorized dealers to distribute the product, and electronically tracking the distribution of products. [28]

Despite their duty to responsibly sell and distribute weapons, firearm manufacturers have failed to employ effective distribution methods such as those used by manufacturers of other dangerous consumer goods. The industry's failure to act responsibly is a conscious attempt to shield themselves from liability by distancing themselves from the end user or abuser of the product. Instead of employing responsible and effective distribution tactics to decrease the ready access that criminals have to firearms, they point the finger at the abuser of the product. The firearm industry maintains that they are not responsible for the criminal misuse of their lawfully sold product. Contrary to their position, failure on the part of gun makers to act responsibly and use effective distribution procedures when they have a duty to act is negligent.

Negligent distribution cases are viable lawsuits against the industry. The first lawsuit that was heard by a jury alleging that marketing and distribution practices of gun manufacturers foreseeably fostered illegal gun trafficking that resulted in gun-related deaths and injuries was Hamilton v. Accu-tek..[29] This action resulted in a Plaintiff verdict. Following the verdict, the trial judge, Judge Weinstein, ruled against Defendants' Motion for Judgement as a Matter of Law. In a lengthy opinion, Judge Weinstein found as follows:

To the extent manufacturers' negligent marketing or distribution practices allow them to profit from the acquisition of handguns by those likely to misuse them, they must be deemed to have benefited wrongfully at the expense of those injured or killed. Fairness mandates restoration of the balance through the imposition of a duty to market and distribute handguns responsibly. Id. at 55.

Every municipality that is currently suing the firearm industry has alleged either that the distribution and marketing practices of defendants have created a public nuisance, were negligent or were unfair, illegal or fraudulent. For instance, Chicago has alleged that defendants created a public nuisance by intentionally marketing, distributing and selling handguns to persons in Chicago even though the City banned handguns.[30] The California lawsuits have similarly maintained that the firearm industry's conduct has created a public nuisance and that the industry has engaged in unlawful, unfair and/or fraudulent business practices in connection with the manufacture, sale or marketing of firearms.[31]

II. THE IMPACT OF MUNICPALITY LAWSUITS ON INDIVIDUAL LITIGATION

The growing number of municipalities involved in litigation against the firearm industry will impact individual litigation in a positive way. The city cases and plaintiff attorneys representing injured persons have opened the doors for creative and novel legal theories to be used against the gun industry. Where once there was an air of animosity towards lawsuits brought against he firearm industry, the current trend is to permit these lawsuits to reach a jury. For example, in Merrill v. Navegar, the California appellate court found that the trial judge erred in granting defendant's summary judgment and dismissing the case.[32] This case was brought against Navegar, Inc., the manufacturer of an assault weapon, used by Gian Luigi Ferri in the 1993 shooting rampage at a law firm in San Francisco that left 9 people dead and 6 others injured. The court in Merrill held that Navegar owed a duty to exercise reasonable care not to create risks above and beyond those inherent in the presence of firearms in our society.[33] The current political and social climate against gun makers is ripe for litigation in many jurisdictions.

Gun manufacturers have the ability to design guns so that children and other unauthorized users cannot use them. The threat of civil liability by individuals and municipalities will create a greater incentive for manufacturers to design and incorporate safety devices into their firearms and to sell guns responsibly.[34] Municipal and individual lawsuits have the collective capacity to force change upon an industry that refuses to be accountable for the death and destruction it has cost.

***Republished with permission from the Association of Trial Lawyers of America, Winter Convention 2000 materials.



[1] Centers for Disease Control and Prevention (CDC). Morbidity and Mortality Weekly Report, 1997: 46:101-105.

[2] CDC, National Center for Injury Prevention and Control, Ten Leading Causes of Death, United States, 1993-1995. Rev. 7/7/98; CDC/National Center for Health Statistics, 1997; State of California, Department of Health Services, Death Records, Table 02 Death By Age 1-19, Sex and Cause of Death (1996).

[3] Kizer KW, Vassar MJ, Harry RL, Layton KD, Hospitalization charges, costs and income for firearm-related injuries at university trauma center, Journal of the American Medical Association 1995: 273(22): 1768-1773. (Estimated costs for 1995).

[4] Annest JL, Mercy JA, Gibson, DR, Ryan GW, National Estimates of nonfatal firearm-related injuries. Journal of the American Medical Association (JAMA). 1995; 273:1749-1754; Witkin, Gordon, Another Gun Control Plan, The Wild Idea: Treat Guns like other Consumer Items; Make Them Safer, U.S. News and World Report, May 13, 1991 at 37; National Center for Health Statistics, unpublished data from the Vital Statistics System, 1997 Firearm Deaths.

[5] General Accounting Office (GAO), Accidental Shootings, Many Deaths and Injuries Caused by Firearms Could be Prevented, March 1991.

[6] GAO Report at 20.

[7] 15 U.S.C. 2052(a) (1) (E) (1994). The Consumer Product Safety Commission (CPSC) is the only federal agency with authority to promulgate safety standards for consumer products except for those products that are exempt from the CPSC's jurisdiction as set forth in the Consumer Product Safety Act of 1972. Firearms are one of the products that are exempt from CPSC regulation.

[8]Some of the chamber loaded indicators currently on the market are ineffective and do not adequately perform the function for which they are intended . to alert the user that a round is in the chamber. A potential product liability case may be a possibility for an unintentional gun shot case if the chamber loaded indicator is deficient and failed to warn the user that gun was loaded. See Dix v. Beretta, infra.

[9] GAO Report at. 4.

[10] Immunity legislation precluding either lawsuits by municipalities or individuals against the gun industry has been passed in the following states: Alaska; Arkansas; Arizona; Georgia; Louisiana; Maine; Montana; Nevada; Oklahoma; South Dakota; Texas; and Tennessee. Immunity legislation is pending in the following states: Kansas; Kentucky; Iowa; Massachusetts; Minnesota; Michigan; North Carolina; Pennsylvania; South Carolina; Vermont; and Wisconsin. Contact Joshua Horwitz at (202) 530-5888 ext. 28 for further information about immunity legislation.

[11] Atlanta successfully overcame defendants' Motion to Dismiss on October 27, 1999.

[12] Interpreting Ohio law, which differs from the law of many states, a court dismissed the Cincinnati lawsuit on October 7, 1999.

[13] National Center for Health Statistics, Unpublished data from the Vital Statistics System, 1997 Firearm Deaths.

[14] National Center for Health Statistics (1995).

[15] Journal of the American Medical Association, 266: 2989-2995 (1991).

[16] Robinson, Teret, Vernick, Webster, et al. Personalized Guns: Reducing Gun Deaths Through Design Changes, A publication of the Johns Hopkin Center of Gun Policy and Research, 2d. Ed. at pp.6-7 (May 1998).

[17]D.R. Weiss, Power Electronics and Custom Controllers Department, Sandia National Laboratories, Smart Gun Technology Final Report, Albuquerque, New Mexico, 87185-0537, at 1 and 81-109 (April 1994). Automated identification technologies electronically detect and measure a unique characteristic of an item, i.e. radio frequency identification or transponders, bar code identification and touch memory; biometric technologies measure a person's unique physical characteristics to identify the person, i.e. fingerprint, voice, hand shape, signature or facial feature recognition; and miscellaneous technologies include internal and external locking devices, i.e. magnetic encoding devices that lock the trigger to prevent shooting unless the magnets are aligned, capacitating sensors are sensors with the capacity to determine when an object is nearby.



[18] In fact, in 1996 Colt Manufacturing Company announced that it designed a prototype for a personalized gun for use by law enforcement agencies. The prototype has still not been marketed or sold. J. Taylor Buckley, Smart Guns: A Safe Alternative?, USA Today, Sept. 18, 1996, at 5B.

[19] Teret S, et al. Support for new policies to regulate firearms: Result of two national surveys, New England Journal of Medicine 1998:Volume 339 (12):813-818.

[20]Alameda County Superior Court Case No. 750681-9. This case involved the tragic shooting death of a fifteen year old boy, Kenzo Griffin Dix, by his fourteen year old best friend. The two boys had been playing in the friend's bedroom when the friend brought his father's gun into the room to show Kenzo. The youth inserted an unloaded magazine into the grip of the firearm. Not knowing that a round remained in the chamber of the pistol, he pointed and fired at Kenzo Dix, killing him. The action alleged, among other causes of action, defective design, failure to warn and failure to incorporate a "personalization" device which would prevent the pistol from being fired by an unauthorized user. The case resulted in a defense verdict. For further information about this lawsuit contact the author of this article, Ingrid Evans (415) 554-3884, or Jonathan Lowy at the Center to Prevent Handgun Violence in Washington, D.C (202) 289-7319.



[21] The 1968 Gun Control Act prohibits felons, juveniles, insane persons, substance abusers, illegal aliens, inter alia, from purchasing a firearm from a federal firearms' licensee. 18 U.S.C. '922, et seq.

[22] Department of Education, Annual Report on School Safety, at 3 of 5, (Oct. 1998), www.ed.gov/pubs/annschoolrept98/stloc.html.

[23] Sheley, Joseph F, Wright, James D., National Institute Institute of Justice, Office of Juvenile Justice and Delinquency Prevention, Gun Acquisition and Possession In Selected Juvenile Samples at 5 (Dec. 1993).

[24] Kleck, Gary. (1991); NERA Report in Hamilton v. Accu-tek case.

[25] Id.

[26] Weaver, Jay, County Targets Handgun Industry: Shooting Spur Lawsuit Proposal, South Florida Sun-Sentinel, Dec. 27, 1998, at 1B.

[27] Declaration of David Stewart, PhD, July 6, 1998 in Hamilton v. Accu-tek case at paragraphs 9 and 11.

[28] Id. at paragraphs 9 and 11.

[29] This case was filed in January 1995 in U.S. District Court for the Eastern District o f New York case no. CV-95-0049. The action was brought on behalf of seven plaintiffs against twenty five handgun manufacturers for negligent distribution/marketing of handguns. The lawsuit resulted in a successful verdict for one of the plaintiffs. Elisa Barnes and Denise Dunleavy were the trial attorneys for the plaintiffs. Judge Weinstein issued a well-supported decision for this case which is available for review on the internet at www.firearmslitigation.org.



[30] Chicago's First Amended Complaint at para. 1.

[31] People of the State of California, et al. v. Arcadia Machine & Tool, Inc., et al. San Francisco Superior Court case no. 303753 at para. 87 of Plaintiffs' First Amended Complaint.

[32] Merrill v. Navegar (1999) First Appellate District, 89 Cal.Rptr.2d 146 (Division 2 of the State of California case no. A079863).

[33] Id. at 2.

[34] Polston MD, Weil DS, Unsafe by Design: Using Tort Actions to Reduce Firearm-Related Injuries, Stanford Law & Policy review, Sin Under Siege: The Legal Attack on Firearms, Tobacco & Gambling, Volume 8, at 18 (Winter 1997).