- The Washington Times - Wednesday, January 16, 2002

A federal appeals court ruled last week that Philadelphia may not sue the gun industry for creating a "public nuisance."

The decision is the most recent action on one of 30 similar lawsuits winding through federal and state courts. Counties, cities and states have sued gun manufacturers to recoup costs they say they've incurred from having to prevent, clean up after, and care for the victims of gun violence. They argue that gun manufacturers failed to take reasonable steps to prevent the violence.

But the U.S. 3rd Circuit Court of Appeals disagreed with Philadelphia, ruling Friday that to link manufacturers to what someone eventually does with the gun is too big a leap.

"The causal chain is too attenuated to make out a public-nuisance claim," Judge Morton I. Greenberg wrote in the unanimous opinion for the three-judge panel.

Instead, he said, someone who was injured, or the family of someone who was killed, may have a better claim which is exactly the tack taken by gun-control proponents in a case from Chicago, which the Illinois Appellate Court ruled on Dec. 31 could proceed.

Gun-control advocates have high hopes for the Illinois case, which argues that manufacturers have flooded the gun market in the Chicago suburbs, knowing that the firearms will make their way into the city, where their sale is illegal.

The appeals court ruled that the industry as a whole could not be held liable a victory for gun manufacturers but also ruled that in cases where a gun is tied to a crime, a victim or victim's family can sue the specific manufacturer.

The firearms industry will probably appeal the decision to the state Supreme Court, while the city of Philadelphia is considering whether to appeal Friday's ruling to the U.S. Supreme Court.

So far, firearms makers have had some solid successes in defending themselves.

"The great majority of the cases have been dismissed, and those dismissals have been upheld in appellate courts now," said Jeff Reh, general counsel to Beretta USA, one of the defendants in many of the cases. Lawrence G. Keane, general counsel to the Hunting and Shooting Sports Heritage Fund, said the Illinois decision "stands by itself in the wilderness."

But losing just one case could have a major impact on some manufacturers.

"It only really takes one case to go forward and be decided the wrong way," said James Jay Baker, executive director of the National Rifle Association's Institute for Legislative Action. "This is not a cash-rich industry, and they've already spent inordinate amounts of money defending these suits, which is basically one of the reasons these suits were brought in the first place."

For their part, gun-control advocates have hope and plenty more opportunities for cases on their side. By their count, they are about 50-50 in getting lawsuits to proceed.

"These are new cases," Brian J. Siebel, a senior lawyer at the Brady Campaign to Prevent Gun Violence. "It's always difficult in any area of the law when you're breaking new ground, but they're sound cases and a number of courts have recognized that."

To avoid more lawsuits, the industry has convinced legislatures in 27 states to pass laws prohibiting cities and counties from suing gun manufacturers under public-nuisance laws. Opponents say the industry's success in getting laws passed shows they are afraid of what the cases could mean in the hands of a jury.

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