Smoking Guns

The street guy told the dealer he needed some guns to replace one he had lost the previous Saturday. The dealer was sympathetic. Were you caught with the gun? he wanted to know. No, the man said. He had run and hadn't been caught, but along the way he ditched the gun and the cops got it. Now he wanted new guns because he had figured out who had "ratted me out" to the police, he said, and he had to "settle up." They agreed on replacement guns and the dealer said to come back in a few days to pick them up.

This was a disturbing episode of retailing, certainly—and all the more disturbing because it did not take place on an inner-city street corner or a booth in a bikers' bar, but over the counter of a store in a Chicago suburb. The customer was an undercover officer, part of a sting operation mounted by Chicago police to support the city's lawsuit against firearms manufacturers and distributors.

The Chicago suit, part of a fast-growing legal trend, suggests the potential for litigation to open a new front in the decades-old war of attrition between promoters of gun control and the gun lobby. Some experts still dismiss the suits as grandstanding. Others, citing a recent New York case, see them as in line with emerging legal trends.

Making a Killing

America remains one of the world's leading gun markets. Private citizens are believed to own 200 million firearms, a third of them handguns, and the industry, with revenues estimated between $1.4 billion and $2.5 billion annually, distributes several million new guns each year. Even so, gun makers fret over flagging sales. Guns are durable, and most of the people interested in buying one for legitimate reasons have already done so. Recent surveys now find guns present in about 35 to 40 percent of American households, a decline from earlier estimates of 50 percent. As Tom Diaz documents in a new book, Making a Killing, the need to sustain sales has taken the industry in troubling directions: appeals to macho fantasy and efforts to exploit a criminal market that developed rapidly in the 1980s and 1990s as a by-product of the boom in crack cocaine. More precisely, the industry attracts potential customers by pitching a new gun's ability to kill better than an old one. "Lethality is the nicotine of the gun industry," Diaz writes. "Time and time again, the gun industry has injected into the civilian market new guns that are specifically designed to be better at killing—guns with greater ammunition capacity, higher firepower in the form of bigger caliber or power, increased concealibility, or all three."

Apparently calculating that gun buyers who begin early remain buyers for life, gun marketers appeal shamelessly to kids. Diaz quotes appalling copy from the voyeuristic "gun press"—magazines that promote the industry. It "is one mean looking dude," says a Guns & Ammo review of an assault weapon, "considered cool and Ramboish by the teenage crowd; to a man they love the AP9 at first sight. Stuffed to the brim with Nyclad hollow points, the pistol is about as wicked a piece as you can keep by your pillow. . . . Take a look at one. And let your teenage son tag along. Ask him what he thinks."

Most recently, the industry has bet on "pocket rockets"—guns that combine higher caliber with smaller size. "The concealibility and firepower of these guns make them among the most lethal weapons America's streets have ever seen," Diaz writes. They also coincide with a national movement to reduce the authorities' discretion in denying permits to carry concealed weapons. Diaz quotes Shooting Industry magazine: "Two bright rays of sunshine gleam through the dark clouds of the slump in the firearms market. One is the landslide of 'shall issue' concealed carry reform legislation around the country. The other is the emergence of a new generation of compact handguns."

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Such marketing imposes huge social costs. Guns killed about 34,000 people in the United States in 1996 and were second only to automobiles as a non-natural cause of death. (The Centers for Disease Control and Prevention estimates that by 2003, guns will surpass cars.) The shooting deaths included 14,300 homicides, or 68 percent of all homicides committed that year. The other fatal shootings included 18,100 suicides and 1,100 accidents. (Circumstances of the rest weren't clear.) A study based on 1992 data found that about 99,000 people were treated in hospitals each year for nonfatal gun wounds, about 20,000 the result of accidents.

Recent studies of the surge in crime that accompanied aggressive marketing of crack in the late 1980s and early 1990s blame most of the violence on guns in the hands of young people. The number of homicides committed by juveniles with guns nearly tripled between 1986 and 1993, while the number of killings with other weapons remained unchanged.

The burden for an innocent public is financial as well as emotional. Medical treatment of a single serious gunshot wound may easily exceed $100,000; a medical journal article in 1995 estimated the cost for treating gun injuries nationwide that year at $4 billion. Taxpayers pay most of these bills. A 1996 California study, for example, found that 81 percent of hospitalized gunshot victims did not have medical insurance. Costs of emergency medical, law enforcement, and other public services mount quickly: Philadelphia estimates that nonmedical expenses of gun violence cost the city $72.2 million per year. Chicago estimates $78.1 million in 1997 for gun-related police and emergency medical service and for prosecution of gun violations. A 1997 study calculated $2.8 million in direct and indirect costs (lost productivity, pain and suffering, quality of life) for a single gun fatality. For nonfatal wounds, the figures were $249,000 for those admitted to hospitals and $73,000 for those who required only emergency treatment. Overall, the study estimated total costs of U.S. gun violence at $126 billion per year. The idea that an industry reliant on perverse appeals to immature judgment should impose that level of grief and fiscal burden makes the case for serious regulation seem obvious, yet it has eluded legislatures for years.

How the Gun Lobby Does It

The modern era of federal gun control began in the 1960s with laws passed after the assassinations of the Kennedy brothers and Martin Luther King, Jr. These laws banned mail-order gun sales and required buyers to attest to their sobriety, sanity, and lack of a felony record. They also restricted purchases to the buyer's state of residence. Subsequent laws banned importation of cheap handguns ("Saturday night specials") and sales of assault weapons and imposed a waiting period between purchase and delivery of a gun so that police could scrutinize the buyer. (Congress recently allowed that requirement to expire, substituting a procedure that requires dealers to check a buyer's identity against databases of criminal records.)

While leaders of the National Rifle Association denounce all such regulation in apoplectic terms, it is remarkable for its laxity. In addition to fending off more serious gun control, the gun lobby over the years has carved out remarkable exemptions for its constituents. For example:

  • A law specifically prohibits the Consumer Product Safety Commission—whose role it is to judge the fitness for market of everything from lawnmowers to baby cribs—from testing or ruling on guns.
  • Congress bars the Bureau of Alcohol, Tobacco and Firearms from assembling gun data in a centralized electronic database. Tracing ownership of a gun recovered at a crime scene requires a call to the manufacturer, who may or may not be able to say what wholesaler sold it to which retail shop, then a call to the retail shop where clerks may or may not have records of the gun's last sale on file.
  • In many states, virtually nothing regulates sales of guns between private individuals. Nearly every weekend in America, tens of thousands of people interested in buying and selling guns gather at "gun shows," where many are able to carry on private transactions beyond any official scrutiny.

Negligent Marketing

Real gun control would impose the level of sensible regulation long accepted for automobiles: universal registration of firearms and licensing of gun owners based on gun handling skills and knowledge of gun safety and gun law. It might also impose a liability insurance requirement and limit gun purchases to one per month. These measures, financed by licensing and registration fees, could do much to inhibit flows of guns to criminals and kids, limit panic buying of guns in the wake of riots or media-inflamed "crime waves," and elevate the general level of gun safety.

It is a measure of the gun lobby's effectiveness that such an idea seems radical even in the wake of national soul-searching over this spring's school shootings in Colorado and Georgia. All the White House could push through the Senate, with a vote from Vice President Gore required to break a tie, were relatively modest measures, like requiring background checks of buyers at gun shows and including child safety devices with sales of new guns. When an interviewer challenged President Clinton, saying he should have pressed for more, he responded in anger.

"Let's join the real world here," he said, pointing out that he was the first president ever to stand up to the gun lobby. "Should we do more? Should people ought to have to register guns like they register their cars? Do I think that? Of course I do. . . . But I tell you, the American people may have one opinion, but they elected the Congress, and the Congress doesn't have that opinion." As he spoke, a version of the mild Senate bill was being weakened in the House.

Could lawsuits circumvent the legislative stalemate? Skepticism abounds. Authorities like Franklin Zimring, the Berkeley law professor who has written extensively on gun policy, reflect the view of many who assert that the legal issues remain hopelessly complicated by the fact that in most cases an "intervening agent"—the criminal—shares responsibility for harm to the plaintiff. And low barriers to entry in the gun business may limit the effectiveness of any legal victories. As suits force some producers to settle or fold, others can easily replace them.

Even so, the results of litigation so far are intriguing. Until recently, tort claims against gun producers and dealers based on gun injuries were considered unlikely so long as guns remain legal to buy and sell. Whatever the suffering of gunshot victims, they couldn't very well argue the product that injured them was defective. And judges shrugged off assertions that people selling guns should be held responsible for how customers use them.

This began to change in the 1990s when lawsuits against the tobacco industry demonstrated that persistent, muscular lawyering could force an industry to account for negligent product design and marketing. In addition, juries were finding drug companies and other defendants liable based on proof of general negligent business conduct rather than specific harm to a specific person.

A group of lawyers who had helped with the tobacco effort worked with the city of New Orleans to file one of the first gun suits. Mayor Daley of Chicago ordered his police department to develop an elaborate sting, "Operation Gunsmoke," that produced startling evidence of suburban gun shops helping to supply inner-city street criminals and gangs. In New York, meanwhile, a lone legal practitioner named Elisa Barnes produced a surprising early win, persuading a jury to find several gun makers collectively liable for "negligent marketing."

To date, 21 cities and counties have filed suits against scores of gun manufacturers, wholesalers, retailers, and their trade organizations. The suits raise different issues, depending on the laws in states where they are filed. The New Orleans, Miami, Atlanta, and Cleveland suits focus on "negligent design," asserting that guns are inherently dangerous and that the industry should be held liable for neglecting to make them safer. They argue, for example, that the industry failed to develop guns that can be fired only by their owners, when technology exists to make this possible.

Suits filed by Bridgeport, Detroit, Cincinnati, and St. Louis raise issues of "negligent distribution." "Defendant dealers have sold and continue to sell handguns even when they know or should know that the handguns will be used illegally in the City of Bridgeport. . . ." A similar claim by Los Angeles and San Francisco engages a California business practices law. Courts have ruled that it may be violated by otherwise legal conduct that undercuts established public policy and inflicts economic damage or physical harm on society. Lawyers for the cities point to a California Supreme Court decision holding it an unfair business practice for tobacco companies to advertise and promote cigarettes to minors, even though it was otherwise legal for them to do so.

Operation Gunsmoke

The Chicago suit elaborates on these themes with support from the undercover operation in which police officers posing as gang members and other suspicious people easily bought guns. The suit cites examples of guns purchased at suburban stores later used in gang shootings, armed robberies, and a number of murders, including one of a police officer. The complaint points out that 57 percent of firearms recovered after illegal use in Chicago were first sold only three years before they were recovered, a percentage of new guns that exceeds figures for the rest of Illinois and the United States as a whole. Only 10.5 percent of guns recovered by Chicago police were reported stolen.

The complaint also documents a more chilling development: legitimate gun dealers who cultivate business and close sales by acting as weapons consultants to criminals, bending the rules on waiting periods and record keeping when they threaten to get in the way of a customer's street business. Some excerpts:

  • Officer 1 quietly asked the sales clerk to recommend a 'throw-away' 9mm or .380 caliber firearm. [A throw-away is a cheap gun likely to be ditched by a person, like a drug lookout, with a high risk of apprehension.] The sales clerk told him that one should not buy a 'throw-away' gun from a gun store. Instead, he said, one should buy one from a second party, such as a friend, so that if it is recovered and ATF questions the friend from whom you bought it, then the friend can call and let you know that you will soon be approached by the ATF.
  • On August 19, Officer 2 returned . . . with Officer 3. Officer 2 told the same sales clerk with whom he had dealt on August 14 that Officer 6 owed him money and was likely on the run. Officer 2 stated that Officer 6 had to be dealt with before he left town, and said he needed to 'get a Tec for his ass.' Officer 3 agreed that they had to 'take care of business today.' The sales clerk recommended an Intratec 9mm assault weapon that could fire 100 rounds per load, telling them, 'You made a good choice. It will take care of business.' The sales clerk then added the Intratec 9mm assault weapon Officer 2 had just selected to the purchase order he had created for August 14.


The Chicago complaint argues that the industry creates a public nuisance by flooding these suburban stores with far more guns than the legal market can absorb, and by selling them to people who appear likely to use them for crime. The complaint requests monetary damages of $433 million and a list of injunctions that would require the industry to enforce restrictive practices: limiting purchases to one gun per person per month, requiring customers who are Chicago residents to show proof of a legal place to keep a gun outside the city, requiring manufacturers and distributors to monitor dealers and terminate shipments to those who sell guns to people "whom the dealer has noticed will not use them lawfully and responsibly."

How likely is the suit to succeed? The manufacturers and the dealers that were subjects of the undercover operation have not responded yet, and they could come up with ways to challenge the police officer's testimony. The suit might also be challenged on civil liberties grounds, because asking dealers to assess the possible criminal intent of customers invites racial profiling.

Even so, says David Strauss, of the University of Chicago Law School, "The idea that [the sale of guns to likely criminals] is a public nuisance is actually mainstream and straightforward. One way to think about it would be to suppose that Chicago had an antipollution ordinance and someone set up a factory right on the outskirts of the city and operated in a way that polluted Chicago air. There would be no problem suing them to get them to stop. This is the same thing, if you accept the factual allegations."

The city can already claim a small victory. In April, one dealer, Bob's Sports Headquarters, Inc., signed a consent decree. In exchange for dismissal of damage claims, Bob's agreed to give testimony against the industry and either go out of business or accept strict conditions on the way it sells guns.

Chicago and other cities pursuing the negligent distribution/public nuisance strategy can also look for encouragement to the lawsuit Elisa Barnes brought in federal court in New York. A lawyer who specializes in product liability, Barnes sued 25 gun manufacturers to recover damages for the families of six people killed by gunfire and for a young man who survived a shooting but remains permanently disabled. She presented the shooting victims as the inevitable consequence of the industry's irresponsible distribution practices.

At the trial, Barnes paraded families of victims with tales of grief along with experts on youth violence and marketing of dangerous products. She also used information forced from the manufacturers in discovery to document the idea of negligent distribution. Specifically, she alleged that the manufacturers and distributors were selling far more guns in states with weak gun-control laws than the legitimate users in those states could be expected to purchase, and that the excess guns wound up in the hands of criminals in New York.

To demonstrate this, she hired a team of economists who combined the manufacturers' data with ATF reports and other sources to document trafficking between New York and states with weaker gun laws. The defense hired its own economists to rebut the plaintiff's assertions, sometimes leading the argument into the arcana of statistical regression analysis.

After a turbulent deliberation, the jurors found 15 of the 25 defendants liable and ordered three of them to pay damages of $522,000 to the surviving gunshot victim, Stephen Fox. This was stunning: the gun used to shoot Fox was never recovered. All police found at the scene was a spent .25 caliber shell casing. The jury, acting on a theory of "collective liability," awarded damages against manufacturers with no proof that any of them had distributed the gun that caused the injury. A few days after the verdict, the Wall Street Journal published an account of the deliberation based on interviews with jurors and attorneys. It depicted an irrational process—an adamant juror who favored the plaintiffs buffaloed others sympathetic to the industry into a compromise. In May, however, District Judge Jack B. Weinstein, who had presided over the case, filed a 113- page memorandum that provided a different spin.

The judge dismissed the complaint against the 12 manufacturers who escaped damage payments, ruling that "finding of liability requires proof of damages." But he also cited with approval a modern legal trend to find collective liability when a plaintiff cannot identify a precise defendant for reasons beyond anyone's control. He pointed to litigation over DES, the synthetic estrogen blamed for cancer in adult daughters of women who used it during pregnancy. DES raised "unique problems of proof" because much time had elapsed between the time mothers ingested the drug and the development of cancer in their children. Many could not identify who had actually produced the drugs their mothers took. Courts reluctant to deny the victims any remedy "eliminated the identification requirement, predicating liability instead on defendants' creation of risk through participation in the DES market."

In the gun suit, Judge Weinstein acknowledged the plaintiff's argument that "it is the underground market itself, created and stocked by the defendants' negligence—rather than any one manufacturer's product—which the plaintiffs regard as the cause of their injuries." The language he used suggested the idea of public nuisance as well: "Apt is the analogy to a stream polluted by many manufacturers at once, overwhelming the water's ability to purify itself by the huge influx of the many polluters."

A jury considering a case where the type of product is known but the manufacturer is not may assign damages according to the market share of manufacturers found to market the product negligently—the "market share" version of collective liability. That is what the jurors did in the case of Stephen Fox, awarding him damages from defendants who manufactured .25 caliber guns, prorated according to their market share.

Litigation May Work

Extending such liability to the marketing of guns intensifies the heady atmosphere surrounding the other lawsuits; the industry, at least, is no longer willing to dismiss the litigation as frivolous. If nothing else, the suits have strained relations between industry trade groups willing to consider a settlement and the National Rifle Association, which puts the convenience of gun owners first.

Appeals courts might still cause all this to implode, of course. But in the meantime, the suits will have put invaluable new information on the public record. Elisa Barnes now regularly receives reporters and other interested parties who want to rummage through the boxes of trial transcripts, statistical analysis, depositions, and other documents stacked up in a room of her financial district office. In addition to the extensively argued clash of economists on the question of interstate trafficking, they will find:

  • The testimony of David Stewart, a University of Southern California professor of marketing, who points out that industry-wide agreements are common to reduce the risks products create to consumers or to society. Producers of fertilizer and herbicides make sure they are sold only by people trained to instruct customers in their proper use. Producers of spray paint, concerned about graffiti, make sure retailers keep the spray cans in locked cabinets and don't sell them to minors. He offers a list of similar steps gun manufacturers might take, should they decide to reduce the risk their products create.
  • The testimony of Jeffrey Fagan, a professor of public health at Columbia University who compiles interviews with young men about episodes of violence in their lives. He discusses the pervasiveness of guns on the streets and the "vicious cultural dynamic" they generate.
  • The testimony of Robert Hass, former senior vice president for marketing and sales for Smith & Wesson. He asserts that "the company and the industry as a whole are fully aware of the extent of the criminal misuse of handguns. . . . In spite of their knowledge, however, the industry's position has consistently been to take no independent action to insure responsible distribution practices."


Lawyers for the cities are likely to extract more damning statements as they depose more executives and otherwise assemble information in discovery. Each new revelation generates new publicity, adding to the pressure on legislatures to act and the industry to settle. The train, in other words, is leaving the station. Once rolling, it could be hard to stop.

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