Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘guns’

Victory in Illinois

In another spectacular rebuke for the proponents of gun-control-through-litigation, the Illinois Supreme Court has unanimously tossed out both Chicago’s lawsuit and a lawsuit by private parties seeking to hold gun companies liable for “negligent marketing” and alleging that sales of guns at suburban gun shops constitute a public nuisance along the lines of smoke or stray animals. (John O’Connor, “Chicago gun suits tossed”, AP/Chicago Tribune, Nov. 18). Chicago’s case had been thrown out by a trial court (see Sept. 20, 2000) and then reinstated by an appeals court before yesterday’s denouement. The Illinois Supreme Court is considered among the nation’s most unfriendly by business defendants, but Chicago’s theories were too extreme and too unrooted in precedent to pass muster even there. (City of Chicago v. Beretta; Young v. Bryco Arms). Smallest Minority has much more on the decisions (Nov. 18).

Most of the 30+ municipal gun suits have now been dismissed, but the burden of fighting the litigation has been a crushing one for many defendants, which are often small and family-owned. Their tormentors in the Brady Campaign and other anti-gun groups — funded by George Soros as well as deep-pocketed foundations — show no signs of relenting in their strategy of filing an unending series of flimsy suits in an attempt to achieve through lawyering what voters have denied them at the ballot box. Federal pre-emption, as discussed yesterday, is thus more needed than ever; and it would also help if courts began considering the issuance of sanctions against the groups that file such meritless suits. Update Nov. 22: Steve Chapman comments.

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Gun pre-emption looking good

Last time up, Sen. Dianne Feinstein’s poison-pill amendment passed 52-47, dooming the urgently needed bill although it enjoyed the support on paper of a wide majority of Senators. Now five Democrats among those 52 votes are going to be gone. “Conservative Republicans, all of whom were endorsed by the NRA, will replace all five Democrats.” (Jim Snyder, “Gun lobby, GOP have lawsuits in their crosshairs”, The Hill, Nov. 17). For more on this bill, see my dialogue with Michael Krauss, linked Jul. 21; Mar. 12, Feb. 25; Oct. 9, 2003 and many others.

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Agenda: gun suit pre-emption, class action reform

The U.S. Senate has been the graveyard of federal liability reform legislation for years now, but yesterday’s election may start upheaving the tombstones in an entertaining manner. The new Senate should be perceptibly more favorable to litigation reform than the old — by three or four votes, at least. Gone, for example, will be the Carolinas’ Ernest Hollings and John Edwards, two lions of the trial bar.

The most obvious impact will be on measures which already commanded a substantial majority of Senators, including many Democrats, but had nonetheless been blocked by parliamentary gamesmanship — specifically, the bill to pre-empt lawsuits against lawful gun sellers over the illegal later use of their products, and the bill to redirect most national class actions into federal courts. Also significant will be the defeat of Senate Minority Leader Tom Daschle, whose tendency to talk like a litigation reformer back home in South Dakota, while working closely with trial lawyer interests in Washington, has been the subject of scrutiny in this space (Apr. 12, Aug. 19, Dec. 18).

Daschle’s defeat may cause prudent Democratic colleagues to rethink the policy of filibustering all major liability measures rather than letting them come to a vote. Also significant is the greatly strengthened hand of organized gun owners in the next Senate, on which see Dave Kopel’s roundup. If the Republicans know what they’re doing, they’ll call up and pass gun-suit pre-emption at an early point, with some version of class action reform not far behind.

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Annals of zero tolerance: Civil War replica musket

“A student who took part in a Civil War re-enactment was arrested and could get expelled after a replica musket was found in his car at school.” Joshua Phelps, 17, attends Pine Bush High School about 70 miles north of New York City. “Crawford town police confiscated the musket, handcuffed Phelps and charged him with misdemeanor criminal possession of a weapon, punishable by up to a year in jail.” (“Civil War musket has teen in jam with the law”, AP/South Florida Sun-Sentinel, Oct. 14)(more on zero tolerance).

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Sturm Ruger vindicated in Lemongello-McGuire case

Charleston, W.V.: “A judge has ruled that the country’s largest firearms maker is not liable for two police officers being shot by a felon using a gun made by the Connecticut company. Kanawha County Circuit Judge Irene Berger on Thursday ruled that former Orange, N.J., police officers Dave Lemongello and Kenneth McGuire are not entitled to damages from Fairfield, Conn.-based Sturm, Ruger & Co., Inc.” Gun-control activists had sought publicity for the case, which they argued exemplified the merits of litigation against the gun industry. In June Will’s Jewelry and Loan Co., the pawnshop where the gun was sold, agreed to pay $1 million to settle with the officers. (“Gun maker found not liable for police shooting”, AP/Stamford Advocate, Oct. 1). The Second Amendment Foundation applauded the judge’s ruling.

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Bushmaster settles D.C. sniper case

Bushmaster Firearms Inc. of Windham, Maine, has agreed to pay $550,000 and Bull’s Eye Shooter Supply of Tacoma, Wash. has agreed to pay $2 million to settle families’ lawsuits over the 2002 D.C. sniper shootings (see Jul. 1, 2003). Dennis Henigan of the gun-control-through-litigation Brady Campaign was the lawyer representing the families. “Authorities believe that Malvo shoplifted the rifle from Bull’s Eye, where he and Muhammad had been seen checking out the Bushmaster that later disappeared.” The Bradyites’ theory was that the killings were the gun store’s fault because it lost too many guns, and the manufacturer’s fault because it did not cut off the gun store for losing too many guns. Henigan crowed that the settlement represented the first-ever payment by a manufacturer over charges of negligent distribution and the biggest-ever payment by a distributor. (Tom Jackman, “Gunmaker, Store Agree To Payout in Sniper Case”, Washington Post, Sept. 10). I’m quoted in a subscriber-only BestWire article discussing the implications of the settlement (“Bushmaster Settlement Raises New Liability Questions for Gun Makers”, BestWire, Sept. 13)($). Jeff Soyer also comments (Sept. 10).

Both companies’ contribution to the settlement will apparently come from liability insurance proceeds. Reports the Portland, Me. paper (David Hench, “Gun firm settles in sniper lawsuit”, Portland Press Herald, Sept. 10):

In explaining its decision to settle, Bushmaster said half of its policy limits had already been spent on defending the legal case, and the insurance company believed defending the case would exhaust the money available for coverage.

“The balance of the insurance policy not spent on legal fees, approximately $550,000, will go to the victims’ families for their grief,” said the company’s chairman, Richard E. Dyke.

“Bushmaster strongly believes and vigorously supports the rights of citizens to own and use firearms, and the settlement of this case in no way compromises that stand,” the company said in its release. “The Brady Group’s . . . attempt to eliminate gun rights of citizens has failed legislatively and will continue to fail with these frivolous lawsuits against gun manufacturers.”

But with the decision costing the company’s insurer $1 million, insurers could pressure Bushmaster and other gun manufacturers to make changes.

The legal assault on the firearms industry is richly funded by George Soros, among others; if you’d like to make a contribution to combat such suits there are several legal defense funds working on behalf of companies that get sued, including the National Shooting Sports Foundation‘s Hunting and Shooting Sports Heritage Fund, which allows you to earmark your contribution specifically for legal defense.

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Gun dealer settles for $850K

Perry J. Bruce purchased ten guns between 1994 and 1997 from Jon K. Sauers of Sauers Trading in South Williamsport, Pennsylvania, and dozens from other gun shops in the area. The guns were sold to Bruce legally–he had no record–but Bruce would then go on to illegally resell the guns on the street for a profit, eventually leading to his conviction for gun trafficking in 1998. On April 19, 1999, one of those guns was found by a child under a parked car; that child proceeded to shoot and kill 7-year-old Nafis Jefferson. So, given that someone illegally sold a gun to someone who eventually negligently left on the ground where it was found by someone who then negligently (or worse) killed someone, the mother, with the help of the Brady Center and co-counsel Mark LeWinter, sued… Sauers, who legally sold the gun, and Rossi, who manufactured the gun, and Taurus, which bought Rossi. (Taurus was sued because they failed to “recall and retrofit” the gun with safety devices–as if a Philadelphia thug who leaves his gun under a parked car was going to turn in his illegally possessed gun to be outfitted with a childproof lock.)

As the Philadelphia Inquirer reports,

Sauers testified in a deposition in the Jefferson case that he complied with state and federal law, properly filling out all forms in each sale to Bruce.

But he never asked Bruce why he was buying all the guns.

Asked why he never questioned Bruce, Sauers replied in the deposition: “I don’t know what my reason would be to ask him. I didn’t think it was any of my business.”

Sauers settled out of the suit for $850,000. I still haven’t seen an explanation in the Brady Center materials what Sauers was supposed to have done differently, though they emphasize that Bruce was unemployed and used his welfare card for identification. (Is the state of being poor is reason enough to preclude someone from buying a gun?) “There is a risk of liability that is now real for gun sellers all across the country,” the Brady Center’s Dennis Henigan said, and we couldn’t say it better ourselves. (L. Stuart Ditzen, “Dealer settles suit over gunplay”, Aug. 24; AP, Apr. 21; our gun coverage).

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Victory in St. Louis (again)

“Saying a newly revised Missouri law bars such legal action, a state appeals court refused Tuesday to reinstate the city’s [St. Louis’s] lawsuit that sought compensation from gunmakers, distributors and related trade groups for gun-related injuries. … Tuesday’s decision upheld a St. Louis County judge’s dismissal last October of the city’s 1999 lawsuit. In that ruling, Circuit Judge Emmett O’Brien said such lawsuits would open ‘a floodgate to additional litigation,’ and that ‘issues of both logic and fairness’ favored throwing out the case.” (Jim Suhr, “Appeals court rejects St. Louis city’s lawsuit against gunmakers”, AP/Kansas City Star, Jul. 27)(via Conservative Contrarian)(see Oct. 29).

More: One of the few bright spots for the anti-gun side has been a decision by the Indiana Supreme Court allowing the city of Gary’s suit to stay alive. The victory however was not exactly a famous one: “Although Indiana’s high court ruled that the city’s pleadings were legally sufficient, the unanimous panel expressed skepticism that Gary’s counsel could connect all of the links in the causal chain from manufacturer to injured party.” (Andrew Harris, “Court reinstates Indiana gun suit”, National Law Journal, Jan. 5).

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Alien Tort Claims Act

…discussed by Jim Copland at Point Of Law, here and here. Also discussion of tobacco litigation (here and here), asbestos bankruptcies and Wal-Mart. And of course my discussion with Michael Krauss of whether gun-suit pre-emption by Congress is compatible with the Constitution continues on the featured discussion page, with one more day left to go before we wrap things up.

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