Guns In The Courtroom

By ADAM COHEN

When his teenage son was mowed down on the streets of Chicago by a reputed Latin King gang member, Stephen Young was heartbroken. When he learned how the triggerman got the gun, he was furious. The Bryco 9-mm semiautomatic handgun that killed Andrew Young was one of 40 weapons a suburban gun shop sold to a single purchaser. In gun lingo these are "straw buyers," shady middlemen who do a brisk business reselling guns to convicted felons, minors and others with itchy trigger fingers but no legal right to own a gun. "You want to tell me this guy needs 40 guns for self-protection?" asks Young. "The gun industry knows what's going on in the street."

In fact, Young wants to hold the gun industry responsible for it. He is lead plaintiff in a high-profile lawsuit by three Chicago families seeking to make gun companies pay for the violent deaths of their loved ones. The suit spells out what plaintiffs say is a cozy relationship between the gun industry and criminals who use its products. Manufacturers design certain guns to appeal to criminals, the plaintiffs say, like snub-nosed revolvers that can be easily hidden under a shirt. The companies then advertise to criminals with felon-friendly claims, the suit charges, like the boast that the TEC-DC9 assault weapon offers "excellent resistance to fingerprints." And the weapons are distributed to gun shops that wink as straw buyers snap them up and whisk them off to be sold out of car trunks in high-crime neighborhoods.

This Chicago suit is part of a wave of lawsuits against the $2 billion gun industry in which several new legal theories are being tested. In a New York City suit against 60 gunmakers and gun sellers, survivors of victims of gun violence are charging gun companies with distributing weapons in a way calculated to evade gun-control laws. Two California cases are going after the gun industry for making cop-killer bullets and guns that fail to indicate they're loaded when they have a round in the chamber but an empty clip. The families of two people killed in the Jonesboro, Ark., school massacre are preparing a lawsuit against a gunmaker for not including a trigger lock. And the mayors of Philadelphia, Chicago and other cities may sue to recover the cost gun crimes add to city budgets.

To the gun industry, these suits defy established law and basic fairness. Guns are legal to manufacture and safe when used properly. It isn't their fault, the manufacturers say, that criminals buy their products and use them to shoot people. "You don't sue General Motors when someone drives drunk and hurts someone," says Smith & Wesson lawyer Anne Kimball. The gun manufacturers say that going after them distracts from the real problems: crime and social breakdown.

So far, courts have largely sided with the gun companies. Victims of guns that misfire because of a mechanical defect have won some cases, and stores have been held liable for selling guns under wildly unreasonable circumstances. But suits blaming the gun industry when its products are used in crimes or by careless third parties almost always fail. Just this spring a jury cleared a Tennessee company that sold a mail-order MAC-11 assault-pistol kit, the so-called MAC in a sack, used in a sniper killing on the Brooklyn Bridge.

So these must be sweet times to be a gun-industry lawyer, right? Well, maybe not. Some legal observers say the tide may be about to turn. The model is tobacco. For 40 years cigarette companies had a perfect record: 813 claims filed against them, no losses, no damages paid. But with popular opinion shifting against smoking and 47 states now suing to recoup their medical costs, Big Tobacco is worried enough about its chances going forward that it's offering hundreds of millions of dollars to settle. The key point for guns, like tobacco, is that negligence law turns on what society deems to be "reasonable" activity at a given time. "Judicial opinions are dressed up in the language of legal doctrine, but it all depends on public opinion and public policy," says University of Arkansas law professor Andrew McClurg. If national outrage over the recent spate of school massacres and other highly publicized acts of gun violence finds its way into the jury box, the gun industry could start losing big.

Just what is "reasonable" when it comes to making and selling guns? Victims' lawyers are starting to haul out some tough cases. In an Oakland, Calif., suit headed to trial soon, the family of 15-year-old Kenzo Dix says he was accidentally killed by his 14-year-old friend because the Beretta that was used still had a bullet in the chamber ready to fire when the gun's magazine was empty. The gun should have had a "loaded-chamber indicator" to make that clear, the family argues, along with "personalized gun" technology that would have prevented an unauthorized user--like the 14-year-old shooter--from firing it. The industry says the problem in the Dix case and others is that an adult should have kept the gun locked up. "The most important device with any gun is the brain of the person using it," says Richard Feldman, executive director of the industry-financed American Shooting Sports Council. "If you shut your brain off, you're in trouble."

One factor working in the plaintiffs' favor is that they're starting to get access to the private records of the gun industry. In the past, suits like these were usually dismissed in the early stages. But in the New York case, plaintiffs have been able to conduct discovery, the stage when lawyers wade through the other side's documents. With tobacco, the climate changed abruptly when plaintiff lawyers got hold of papers revealing internal cigarette-company marketing strategy. Lawyers in some of the gun cases hope to come across evidence that manufacturers have marketing strategies designed to move guns into cities with tight gun-control laws or into high-crime areas.

But perhaps the biggest threat to the industry is the growing talk of cities' suing. Philadelphia Mayor Ed Rendell seemed to inspire a trend in January when he said he was considering filing a lawsuit to recoup the $58.8 million in gun-related costs his city spends each year on everything from police expenses to the cost of literally cleaning the blood off sidewalks. Chicago Mayor Richard M. Daley has spoken of filing a suit to recoup costs and stop gun shops outside the city from selling guns to Chicago residents who have not legally registered with the city.

Despite the gun industry's winning court record so far, the prospect of defending all these new suits has put it in a compromising mood. Last week manufacturers' representative Feldman traveled to the U.S. Conference of Mayors meeting in Reno, Nev., to discuss ways the industry and cities could reduce gun violence without getting the courts involved. And eight companies that make 80% of U.S.-made firearms will voluntarily include child-safety locks by the end of this year. It all looks nice and amicable, but lawyers for victims insist these changes are coming only because the industry is worried about the cost of digging in its heels. Says Attorney John McNicholas, who is bringing one case to trial: "There's nothing like affecting the bottom line of corporate America to get its attention."

--With reporting by Julie Grace/Chicago

With reporting by Julie Grace/Chicago