-Caveat Lector-
REASON * October 1999
Big Guns
Plaintiffs' lawyers declare themselves the "fourth branch of government" and
go after firearms
By Walter Olson
You don't need to be a big Second Amendment booster to be appalled by the
newest round of litigation against gun makers. All you have to do is take a
look at some of the coverage that has appeared recently in press outlets that
are basically sympathetic to gun control, like Salon, the American Lawyer,
the National Law Journal, and The New Yorker.
Perhaps you've heard that big-city mayors had to sue because they've been
losing sleep over how freely guns are bought and sold in this country. Well,
it's funny about that. According to Jake Tapper in the July 13 Salon, many of
the cities suing gun makers are themselves major distributors of guns, police
surplus and otherwise, to the used market. Disposing of firearms in "gun
swaps," generally with no questions asked, has been a handy way for
localities like Boston, Detroit, and Alameda County, California, to defray
the cost of new police weapons. Boston, for example, attached no strings to
resale when it recently got rid of more than 3,000 .38s, even though it has
now endorsed a new legal theory that private vendors should be liable because
they displayed "willful blindness" to what happened after guns left their
hands.
For hypocrisy, it's hard to top that. Not impossible, though. New Orleans was
the first city to jump on the gun lawsuit train: "We have been so focused
here in New Orleans on getting guns off the street and protecting our
citizens," Mayor Marc Morial declared at the press conference. Yet New
Orleans recently scored what may be the biggest deal of its kind ever in the
U.S. when it recycled to street use through an Indiana broker some 7,300
guns, most of which it had confiscated from lawbreakers. These included
TEC-9s and various other semiautomatics whose importation and manufacture
Congress banned in 1994.
The municipal gun suits demand that manufacturers equip their wares with
safety locks, but New Orleans officials attached no such condition to the
resale of the guns in their own inventory, only two of which had locks among
the thousands they shipped. Nor did they require that the guns be resold only
to other police departments, a financially unwelcome stipulation since
weapons may fetch only half as much on the market when that particular
condition is attached.
Another of the novel legal theories holds it unconscionable for manufacturers
to cater to the full demand of shops located in gun-friendly states and
suburbs if they can reasonably figure that a certain percentage of the
merchandise will wind up in the hands of city residents. But the Big
Easy--which merely stipulated that the weapons not be immediately resold in
Louisiana ("not in my bayou," as Salon's Tapper puts it)--could easily have
predicted what would happen soon after some of the guns in the deal were
initially shipped to Texas: They began showing up at New Orleans shops.
With this sort of embarrassment in the wings, whatever possessed the mayors
to dream up these suits? They weren't the ones who dreamed them up. As the
June American Lawyer recounts in detail, the gun litigation got under way
when a bunch of the nation's richest trial lawyers began looking for new
worlds to conquer after the successful mugging of the tobacco industry.
Following a December pow-wow in Chicago to get their story straight, they
began flying around the country to "pitch their services to mayors and city
attorneys." Under the terms of contingency fee agreements with the cities,
they stand to pocket as much as 30 percent of any trial winnings.
These lawyers are not really interested in law, if by that you mean the
old-fashioned idea of a rule that's announced in advance so people covered by
it know what's expected of them. Instead, they are quite openly spinning out
new liability theories as fast as they can dream them up, asking the courts
to penalize the gun companies for not pre-emptively anticipating and
complying with those theories in the past. No one seems to care about the
dangers of this approach. The retroactive application of new liability
theories to tobacco companies was met with almost unanimous approval from the
press and scarcely a peep of protest from the business community (see "Retro
Style," August/September 1997). Even now that it's clear the principle will
be applied to plunder one industry after another, it's hard to get the
business community to offer any resistance in principle, or to detect any
real solidarity between people in different industries.
How worried are the plaintiffs' lawyers about going to trial and losing? "As
in the war against tobacco, winning in court isn't necessarily the objective
of the lawyers," observes Peter J. Boyer in a fascinating article about the
origins of these cases in the May 17 New Yorker. "If twenty cities do bring
suits, defending against them, according to some estimates, could cost the
gun manufacturers as much as a million dollars a day." That would force gun
makers to the negotiating table as the only alternative to bankruptcy.
"Judge shopping" also plays a role in the strategy, again in line with the
tobacco precedent. (See "Firing Squad," May 1999.) Some friendly state judges
are willing to dispense "home cooking" to locally influential counsel. On the
federal side, according to the July 19 National Law Journal, the NAACP is
desperately angling to get its new suit against gun makers heard by
Brooklyn's extremely liberal senior-status judge Jack Weinstein, because the
underlying theories "might not succeed in any other courtroom in America"--a
truly damning commentary on how weak the case is. Weinstein, you may recall,
presided over Hamilton v. Accu-Tek, the only case so far in which a jury has
bought the idea of holding manufacturers responsible for gun violence because
they should have known that some of their products would end up in the hands
of criminals. The jurors did not accept this theory easily: During six days
of deliberations, they repeatedly told Weinstein they could not reach
agreement; he refused to accept a deadlock.
Judges like Weinstein may well be reversed on appeal, but in the meantime the
idea is to create as much uncertainty as possible, capitalizing on the
difficulty of defending against many different theories in many different
places at once, all this aside from the irreducible random factor in all
litigation. "[We] have the resources to start a war instead of taking little
potshots," trial lawyer John Coale told The New Yorker's Boyer. "Well, we've
started a war." Attorney Dennis Henigan of the Center to Prevent Handgun
Violence said what he's after is to create a "credible threat of
liability....The more cities that file, the greater is the threat. So what
you really want is a diversity of cases in lots of different regions, lots of
different courts to create the greatest threat of liability." You might call
this a "spaghetti strategy": Throw a potful against the wall and see if any
strands stick. You might also compare it with what the Irish Republican Army
said after its Brighton hotel bombing failed to assassinate Margaret
Thatcher: "We only have to be lucky once. You have to be lucky every time."
Polls show the gun suits are unpopular even among voters who are willing to
entertain other gun control proposals. Yet it's hard to say when or if the
press will turn critical. The New Yorker's account depicts attorney Coale
openly chortling over the success of the tobacco lawyers in getting the media
to sing in unison out of their songbook. "With Coale directing the political
and media ends of the case," as Boyer tells it, "the plaintiffs' lawyers
became the prime creators and marketers of a national narrative entitled `Big
Tobacco.' `Oh, hee-hee-hee, we just started in on Big Tobacco,' says Coale,
delighting in the memory. `You know, it was "let's just refer to 'em as Big
Tobacco," Big Tobacco, Big Tobacco, Big Tobacco! Pretty soon, everybody's
talking Big Tobacco.' "
You'd think the press, if only from a residuum of professional pride, would
at some point revolt against a campaign of manipulation so thorough and
profitable that its practitioners can gloat about it in the pages of
mass-circulation weeklies. But no: Many at major networks and newspapers are
apparently content to get suckered the same way in this round too. According
to Boyer, the "most important lessons" Henigan brought to the group of trial
lawyers for whom Coale is a spokesman "had nothing to do with litigation" but
instead related to manipulating public opinion. "Henigan believes that it is
imperative to steer the argument about guns away from the problematic area of
criminal use, with its inconvenient focus on criminals" and instead recast
the gun debate "as a health issue...guns should be thought of as pathogens,
and gun ownership, perhaps, as a disease." Once again, the tobacco episode
will serve as precedent, this time by reference to the invaluable help Dr.
David Kessler gave the litigators when, from his perch at the Food and Drug
Administration, he declared that smoking was a "pediatric disease."
In keeping the tobacco companies pinned down and under constant public fire,
The New Yorker's Boyer comments, "Kessler proved a particularly valuable
ally" to the lawyers. " `We were in touch with people at the F.D.A. all the
time,' Coale says. `There were a lot of faxes, phone calls, and other forms
of communication being exchanged.' " At the time, those who suspected the FDA
of playing footsie with the trial lawyers were assailed as demeaning the
integrity of a group of independent-minded public servants. Now we learn
better.
Boyer notes other political connections that helped the trial lawyers. "When
Hugh Rodham, a Florida lawyer who had no experience with product liability,
was brought into the group as a `lead litigator,' few supposed that it was
for any reason other than that he was Hillary Clinton's brother," he
explains. "The move proved fruitful when, over Thanksgiving with the first
family in 1996, Rodham suggested to his brother-in-law the President that the
White House might want to get involved in settlement talks." Clinton agreed
and "put his most trusted aide, Bruce Lindsey, on the issue." By now, Boyer
concludes, given their power to decide which suits to file next and how to
prosecute them, "Coale and his colleagues are guiding the national agenda--a
new means of public-policy making that can't be found in any civics book."
The reason it can't be found in any civics book is probably that it's so
alien to the form of government the Founders thought they were giving us. The
June American Lawyer, in its article recounting the origins of the firearms
litigation, reports that prominent New Orleans trial lawyer Wendell Gauthier
was the first to talk his colleagues into suing gun makers, even though their
pockets weren't all that deep. The suit "fit with Gauthier's notion of the
plaintiffs bar as a de facto fourth branch of government, one that achieved
regulation through litigation where legislation failed."
Remember, it's not our side that's decided to call the trial lawyers a de
facto fourth branch of government: That's their view of the matter, in the
words of the American Lawyer. Of course, there remain a few differences
between this new Fourth Branch and the three original branches the Founders
had in mind. For one thing, those who labor in the other three branches of
government aren't supposed to use their coercive powers to turn themselves
into billionaires.
For another, they have to submit to a great deal of public scrutiny, nowadays
including sunshine laws, extensive financial disclosures and blind trusts,
freedom of information statutes, and much more, whereas the back rooms where
the Fourth Branch does its work of recruiting governmental clients and
negotiating settlements remain off-limits to public scrutiny. And then
there's a difference which some consider even more important, namely that the
Fourth Branch doesn't risk getting slowed down by that anachronistic holdover
of an earlier system of governance known as "elections."
Contributing Editor Walter Olson, a senior fellow at the Manhattan Institute,
edits the new Web site Overlawyered.com.
"Laws that forbid the carrying of arms disarm only those who are neither
inclined nor determined to commit crimes. Such laws make things worse for the
assaulted, and better for the assailants. They serve rather to encourage than
to prevent homicides, for an unarmed man may be attacked with greater
confidence than an armed man."
THOMAS JEFFERSON
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