spate of government litigation against the nation's gun
companies has been stifled in 30 states, which have passed laws
granting the industry immunity from civil lawsuits.
Those laws have all been enacted since 1998, when New Orleans
became the first of almost three dozen cities and counties to
file suits against gun manufacturers and dealers, accusing them
of being public nuisances and seeking huge damage awards in a
campaign similar to that waged against the tobacco industry.
The gun companies have won the aid of state legislatures to
turn back the legal assault. Already, civil suits against the
industry by New Orleans and Atlanta have been dismissed by state
courts in Louisiana and Georgia because of the grants of
immunity, even though the grants were passed after the suits
were filed.
Suits by Detroit and Wayne County, Mich., are pending while a
Michigan court determines whether a new law there granting
immunity can be applied retroactively.
A striking exception to the trend is the California State
Legislature, which passed a bill this week repealing a law that
gave the gun industry immunity.
Gun control advocates hailed the repeal as a major defeat for
the industry, but their victory may be short-lived. In
Washington, there is a bill with 228 sponsors in the House of
Representatives, that would provide federal immunity to the
firearms industry. A similar bill in the Senate has 39 sponsors.
No other industry has such blanket protection.
Some of the other lawsuits have survived motions to dismiss
by the gun industry and have quietly moved into the discovery
phase.
Lawyers for the cities, who have subpoenaed large numbers of
internal firearms company documents and testimony by industry
officials, say they have now found significant evidence of their
central claim — that the gun industry maintains a distribution
system that allows a large number of guns to fall into the hands
of criminals and juveniles.
Specifically, the lawyers say, they have found evidence that
the gun manufacturers failed to act on warnings by the Federal
Bureau of Alcohol, Tobacco and Firearms that certain
distributors were responsible for selling large numbers of guns
that ended up with criminals.
"We haven't found one of the companies that uses this
information from the government to check its distributors, or
put them on notice or cut them off," said David Kairys, a
professor at Temple University Law School who is advising many
of the cities.
But Lawrence G. Keane, the general counsel for the National
Shooting Sports Foundation, the trade association for the gun
industry, denied that the cities had found any damaging
evidence. "If there was evidence that manufacturers were
willingly selling to criminals and juveniles, the A.T.F. would
close them down," Mr. Keane said.
Mr. Kairys and some other lawyers for the cities say they do
not expect to win large monetary settlements. Instead, they say,
the cities are hoping to force the gun manufacturers to change
their distribution system to make it harder for criminals to buy
guns.
Mr. Keane said he was confident the municipal lawsuits would
all be dismissed or decided in favor of the gun companies.
Several other cities' lawsuits, Mr. Keane pointed out, have
already been dismissed by the courts because the judges did not
accept the evidence or a new legal theory that the cities are
trying to use: that the gun industry amounts to a public
nuisance, like an industrial polluter, because it supplies guns
to criminals.
In another suit, brought by Boston, a Massachusetts judge
allowed the case to proceed but lawyers for the city dropped the
case after discovery was completed. One lawyer close to the case
said that a law firm doing some of the work for the city dropped
out when it realized there would be little money to collect.
Mr. Keane said the lawyers for Boston gave up "because
they realized these cases are dogs. There is no pot of gold at
the end of the rainbow."
Mr. Keane said he was confident the same result would occur
in California, where 12 cities and counties have a consolidated
lawsuit against the gun industry.
"The same documents were produced in Boston and
California, many of the witnesses were the same, and many of the
lawyers are the same," Mr. Keane said.
But Dennis Henigan, the legal director of the Brady Campaign
to Prevent Gun Violence and a co-counsel in the California
suits, said the situations in the Boston and California cases
were very different. "We think the California cities will
be able to put on a powerful case against the industry,"
Mr. Henigan said.
Mr. Henigan said the vote by the California Legislature this
week to repeal the immunity was in response to an unpopular
decision last year by the California Supreme Court ruling that
victims of a rampage shooting at a law office in San Francisco
in 1993 could not sue the manufacturer of the murder weapon
because of the immunity law.
The new bill repealing the gun industry's immunity now goes
to Gov. Gray Davis. Russ Lopez, a spokesman for Governor Davis,
said the governor had not yet decided whether to sign the bill,
though when the immunity law originally passed Mr. Davis voted
against it as a member of the Assembly.
Andrew Arulanandam, a spokesman for the National Rifle
Association, said the gun industry deserved special protection
because "it is irresponsible to hold a legitimate industry
responsible for the criminal actions of a few people over which
it has no control."
"We would not sue car manufacturers for injuries caused
by a drunk driver," Mr. Arulanandam said.