- The Washington Times - Tuesday, September 19, 2000

Chicago is now the fourth city to lose its lawsuit against the gun industry, but other cities have been more successful in getting past the first phase of a nationwide effort to bankrupt gun makers in court.

Four of the 31 highly publicized copycat lawsuits that city and county governments filed against the gun industry were thrown out of court in the earliest phase when it is toughest for defendants to win summary dismissal.

The latest dismissal Friday of Mayor Richard Daley's $433-million "public nuisance" complaint against 42 manufacturers and dealers put Chicago in the loser's corner with Cincinnati, Miami and Bridgeport, Conn.

At the same time, a San Diego Superior Court judge upheld a similar collective suit by several California cities, including San Francisco and Los Angeles. Other cities already past the first legal obstacle include Atlanta, Boston, New Orleans, Cleveland, Detroit and New Orleans.

Pierce Gore, a San Francisco-based lawyer with the New York firm representing more than half of the cities involved, said that instead of "settling in one direction or another," the courts were divided.

"We are navigating uncharted waters here with each new case that comes up with a motion to dismiss. It's as novel a question as the tobacco litigation was five years ago," Mr. Gore said yesterday.

Robin S. Conrad of the National Chamber of Commerce Legal Center countered: "I think that the cities' theory they can act for crimes committed against their citizens is crazy, and the vast majority of courts are ruling that doesn't apply because of the remoteness doctrine."

"The courts get the joke, and they're tossing those cases out. And the claims are not so unique. Five federal courts of appeals tossed out similar claims brought against tobacco companies by insurance companies and unions," she said.

While legal analysts say it's too early to draw broad conclusions from the dismissals, the Chicago decision was clearly a surprise to anti-gun forces.

"The Illinois Council Against Handgun Violence is shocked by Judge Stephen Schiller's … decision [which it finds] incomprehensible," the group said in a press release.

"Firearm violence is a public nuisance, not just in Chicago, but everywhere even in Glenview, where Judge Schiller lives," board member Bob Williamson said.

The Cook County Circuit judge said the law doesn't permit him to hold a gun company liable for criminal acts by others, and that only a person actually injured by a gun could bring suit under current law.

Like other judges in such cases, he suggested that advocates take their arguments to the legislatures and enforce existing criminal laws against actual wrongdoers.

"What are these guns sold for? These guns are sold to kill people, drug dealers and 'gang-bangers,' " Mayor Daley argued. He vowed to appeal.

Much of the same court reasoning lay behind last month's Ohio appeals panel dismissal of the Cincinnati lawsuit. That decision was based on a federal Court of Appeals decision from the D.C. Circuit in the Air Florida case. Seventy-eight persons were killed when a plane crashed into the Potomac River in January 1982.

"We hold that the city's attempts to stand in the shoes of its citizens and recover its municipal costs must fail," the court panel said, invoking the federal decision from the crash at the 14th Street Bridge.

The D.C. government was trying to recoup more than $750,000 in costs expended in rescues, recovering bodies and the destroyed plane. Judge Joyce Hens Green threw the case out and Chief Circuit Judge Harry T. Edwards wrote the opinion upholding that ruling against the city.

"In the absence of authorizing legislation or a governmental proprietary interest protected by the services, these expenses may not be recovered," he said. "It is critically important to recognize that the government's decision to provide tax-supported services is a legislative policy determination. It is not the place of the courts to modify such decisions."

In the Cincinnati case, Appeals Court Judge Ralph Winkler likewise said the city failed to charge a direct injury death, physical injury or emotional distress" from any particular firearm model or its manufacturer, a feature common to all the lawsuits.

"Manufacturers have no duty to give warnings about the obvious dangers of handguns," Judge Winkler wrote.

"These cases never had any legal basis," said James Dorr, an attorney for Sturm & Ruger in the Ohio case.

Personal backing from the president for the municipal lawsuits, plus a federal lawsuit on the same issue in which Housing and Urban Development Secretary Andrew M. Cuomo plays a major role, drew industry contempt in a dramatic TV ad. In the commercial, a stern man slashes stars and stripes off the American flag.

"This Clintonian framework erodes both the separation of powers and federalism, undermines the protection of civil rights, denies individual responsibility and, if continued, will lead to a vicious cycle of futile dependence on ever-expanding government power," said Alabama Attorney General Bill Pryor at a summer conference of the Cato Institute.

Mayors angrily asked for equal time to answer the paid ad.

The narrator Martin Sheen's younger brother, Joe Estevez says the gun industry supported troops at Gettysburg, Normandy and Vietnam, then contemptuously adds "this administration and big-city mayors" attacked the industry in court.

Most of the cases are being prosecuted in state courts, but even those removed to federal court, because no defendant is from that state, are governed by state civil laws, which vary substantially.

"We're extremely pleased with that San Diego decision, but we've seen some disappointing results in other cities," Mr. Gore said, challenging advice to use the legislative route.

"We're not necessarily asking expansion of existing law, but we are asking courts to take a look at the conduct of a politically charged industry that has not previously been subjected to this kind of scrutiny or litigation. Any time you're entering new territory, it's difficult to get past motions to dismiss."

The Michigan and Pennsylvania cases, among others, may be hanging by a thread because those states' legislatures and six others passed laws barring local governments from pursuing such lawsuits.

Michigan Attorney General Jennifer Granholm, who opposed the law passed June 29, said she is undecided whether to seek dismissal of the case from Wayne County and Detroit.

"It's a sad day for local communities that believe in governing themselves and making decisions about what is best for the people that live there," said Greg Bowens, a spokesman for Detroit Mayor Dennis Archer.

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