- The Washington Times - Thursday, December 7, 2000

As New York teen-ager Stephen Fox tells the story, he was simply having a conversation with a friend. He looked over at the friend and saw him raise his arm with a "black object." The next thing Fox knew he was in his mother's arms, unable to move his arms or legs.

What happened that day in 1994 was that Fox's friend, Alfred Adkins, accidentally shot him with a .25 caliber handgun. Fox survived the shooting, permanently disabled by the bullet that remains lodged in his brain. Law-enforcement officials subsequently charged Adkins with attempted murder, but he wound up pleading guilty to reckless endangerment.

There this terrible story might have ended, the victim having obtained some justice, however inadequate, and the assailant having had to abide by it. But as readers familiar with the occult mysteries of this country's jurisprudence could have guessed, the case did not end there. Instead, pushed and pulled along by the plaintiffs' bar, the case turned into a search for the real culprit, one presumably with deeper pockets than the gunman.

That culprit turned out to be gun manufacturers surprise who abruptly found themselves on trial for a shooting that they hadn't even heard of at the time, much less one in which they had participated. Despite the fact that authorities never found the crime weapon and never established even the make of the weapon, a federal jury found three gun makers Beretta U.S.A. Corp., American Arms Inc. and Taurus International Manufacturing Inc. liable for Fox's injuries because they had distributed their products in a negligent manner. Federal district Judge Jack Weinstein awarded the victim damages based on the manufacturers' share of the gun market.

Today the case remains on appeal at the 2nd U.S. Circuit Court of Appeals, which is struggling to decide what further obligation a company that both makes a legal product and distributes it legally has to prevent someone from shooting, accidentally or otherwise, his friend in the head. It is also wondering about applying so-called market-share liability in a case where the plaintiffs can't actually link the product in this case, a missing and unidentified gun to the companies that now find themselves in the dock. Not surprisingly, companies manufacturing less politically problematic products are also watching the case, lest trial lawyers and courts conjure up ways to hold them liable for negligently distributing widgets and gadgets too.

It wouldn't be the first time gun-related industries have found themselves on trial when someone else pulls the trigger. Victims of the 1993 commuter train shooting in New York sued the makers of the bullets in Colin Furguson's gun, for example, on grounds that the company should have limited sales of them to law-enforcement officials only. The 2nd Circuit rejected the suit, saying that sales to the public were perfectly legal; the company would have had to anticipate that its advertising would attract, said the panel, "many types of sadistic, unstable and criminal personalities."

Plaintiffs in the Fox case offer variations on this argument, charging that the manufacturers created an excessively large nationwide market in guns that supplies not just law-abiding citizens but criminals. Never mind that the industry only sold weapons to licensed dealers. Gun makers had a duty "to try to abate the illegal gun market." In effect, the plaintiffs and courts would deputize gun makers as officers in the federal Bureau of Alcohol, Tobacco and Firearms, which is ostensibly responsible for abating illegal gun markets. The irony is that governments spawn black markets through rules and regulations that limit possession to those that governments deem fit. Such limits may be sound public policy (or they may not), but you can't blame manufacturers for the smuggling that springs up in their wake, as the country discovered during Prohibition.

But plaintiffs are, if anything, less hostile to smuggling and manufacturers than they are to guns themselves. Such weapons, the argument goes, are inherently dangerous and can "contaminate" anyone. "Plaintiffs," said Judge Weinstein, "have analogized these handguns to pathogens, exposure to which has caused widespread injury and death." The premise here is that handguns, and by extension handgun makers, serve no useful purpose not for hunting, target shooting or self-defense. But countless Americans put them to such uses every day to good and even life-saving effect.

In the context of the Fox shooting, the pathogen argument means Alfred Adkins had no choice but to buy his weapon from the trunk of someone's car, had no choice but to aim at his friend's head, had no choice but to pull the trigger. The gun held him hostage, absolving him of responsibility for what he had done.

By constructing legal arguments that ultimately excuse what Adkins did that grim day, the plaintiffs may unintentionally loose a social pathogen as deadly as any gun he could use.

E-mail:

smithk@twtmail.com

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