January 10, 1998 in Nation/World

Philly Mayor Ready To Sue Gun Industry Suit Would Claim Proliferation Of Weapons Has Created An Expensive Public Nuisance

Craig R. Mccoy And Clea Benson Philadelphia Inquirer
 

Lawyers for Philadelphia Mayor Edward Rendell have prepared an extraordinary lawsuit contending that the nation’s gun industry has created a public nuisance by saturating the city with firearms used by criminals.

If the mayor approves, this would mark the first time a government had sued the firearms trade, according to the National Center to Prevent Handgun Violence.

The suit would demand that manufacturers pay millions of dollars to reimburse the city for costs stemming from guns - everything from the cost of washing blood off streets, to homicide-unit overtime, to the expense of counseling survivors of murder victims.

The approach mirrors that taken by a group of state attorneys general who negotiated a groundbreaking settlement last year with the tobacco industry.

Such an effort would face daunting odds: No judge or jury has ever ordered a gun manufacturer to pay money in a lawsuit over the criminal use of firearms.

Looking for a way to curb gun trafficking and violence in the city, Rendell last summer assembled a team of lawyers and researchers to explore the possibility of court action against gun makers. A draft of a suit has been completed.

“The part of me that is a doer and an innovator very much wants to do this because I believe with every ounce of feeling that I have that there are far too many guns,” Rendell said.

At the same time, the mayor said, “What I am groping with is, this will be a suit that will cost, at minimum, $1 million. The question is, can I responsibly undertake that kind of an expenditure, given all of the city’s needs for the dollar?”

Industry officials say that their product is lawful, and that it is not their fault if guns are misused by criminals. They predicted that a public nuisance claim by the city would fail, as have past lawsuits against the nation’s 45 gun makers.

“How could you hold anybody responsible for a criminal act if they’re not a party to the criminal act? It’s just common sense,” said Daniel Del Collo Jr., a lawyer and lobbyist for hunters.

A lobbyist for firearms makers, wholesalers and retailers met with Rendell last fall, urging him not to sue. The lobbyist, Richard Feldman, told the mayor that the possibility of a city lawsuit had helped prod major manufacturers in October to start putting trigger locks on handguns to prevent accidents.

“I don’t see him filing a lawsuit against us for doing what is lawful under the laws of the Commonwealth,” Feldman said this week.

More and more crimes in Philadelphia are being committed with guns, even as gun crime is decreasing elsewhere in the United States. Of the city’s 420 homicide victims in 1996, 80 percent were shot to death. That proportion was the highest of the nation’s 10 largest cities. In New York City, the rate was 66 percent.

The proposed lawsuit is based on a fresh legal strategy: the contention that guns are a public nuisance. The suit would avoid the tactic of alleging that gun makers should pay under product-liability law for the criminal use of firearms. That approach has failed in suits by private individuals.

Courts have held that a public nuisance is created when an act or failure to act injures the “common rights of the general public” to “health, safety, peace, comfort and convenience.”

A municipal lawsuit could contend that by failing to curb illegal trafficking and multiple gun purchases by individuals, and by marketing their product in a way that appeals to criminals, gun makers have created a public nuisance.

The strategy underlying the proposed suit was devised by attorney David Kairys, who was hired by the city to draft the litigation. He is working under a city contract that will pay him up to $150,000 in fees and costs.

Kairys, a noted civil rights lawyer and Temple University law professor, declined to discuss the lawsuit. He did speak about the public nuisance approach in general.

“When you’re dealing with an instrument that is so dangerous and you dispense it without restrictions and, in essence, are flooding urban neighborhoods, you can come up with civil liability,” said Kairys.

A public nuisance approach might avoid a clash with the Constitution’s Second Amendment, which protects the right to bear arms.

The suit would not seek court-imposed limits on firearms sales. Rather, it would try to impose financial penalties on the industry in the hopes this would lead to voluntary measures to control gun sales.

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GROUNDS FOR SUIT?

Attorney David Kairys, who was hired by the Philadelphia to draft the litigation, said there were good grounds for arguing that gun makers’ marketing and distribution make them public nuisances.

He cited, among other things, a statement by Robert I. Hass, a former senior vice president of marketing for Smith & Wesson.

In an affidavit filed in a lawsuit in New York State, Hass said: “The company and the industry as a whole are fully aware of the extent of the criminal misuse of firearms. … In spite of that knowledge, however, the industry’s position has consistently been to take no independent action to ensure responsible distribution practices.”


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