Trial Lawyers Take Aim

In the latest wave of mega-lawsuits, the cities of Chicago, New Orleans, Atlanta, Miami, and Bridgeport, among others, have filed lawsuits against firearm manufacturers, distributors, retailers, and trade associations because, well, they make and sell firearms. This disturbing wave of law suits-which has gained tremendous momentum since several states successfully sued the tobacco industry-threatens all manufacturers, our system of tort law, and the separation of powers.

As far-fetched as they seem, such suits are not new. In the 1980s, several victims of gun-related assaults tried to sue gun manufacturers on the basis that properly functioning firearms are “unreasonably dangerous” due to their potential for criminal abuse. Those suits were uniformly and soundly rejected. As one court stated in the DeRosa v. Remington Arms Co. case, “The mere fact of injury does not entitle the [person injured] to recover [their losses]. There must be something wrong with the product, and if there is nothing wrong, there will be no liability.”

Feeding this recent frenzy is the popular misconception that all businesses engage in shadowy conspiracies to preserve their markets. One such long-standing myth is that Detroit automakers have long known how to build a “100 mile per gallon auto engine” but have chosen to bury the innovation for fear of ruining the industry.

In the case of firearms manufacturers, anti-gun groups claim that the industry has the ability to make “personalized firearms,” which can only be fired by authorized users, but choose not to make or market them. But in fact, several manufacturers have already built prototypes and some have begun production. They are eager to bring these “per-sonalized” guns to the market in the hopes of appealing to safety-conscious consumers. The companies are so eager that inventors are suing each other over patent and trademark infringements.

Even more outlandish, some cities are suing based on the bizarre theory of “negligent over-supply”-the idea that by manufacturing so many firearms, some will inevitably fall into the hands of criminals. Note carefully that the suits do not claim the manufac-turers knowingly sell to criminals, which would be a federal felony, bearing a five year prison term per gun. Rather, these cities claim that by successfully marketing a lawful product, gun makers are creating a “public nuisance” equivalent to dumping toxic waste in a river. (Presumably, if the manu-fac-turers cooperated to restrain total production or sales to reduce the “oversupply,” they would be prosecuted by the Justice Depart-ment’s Antitrust Division. But, of course, that isn’t mentioned by the suing cities.)

The implications of the “negligent oversupply” theory have been widely noted. Should the automobile industry be sued for the cost of accidents in heavy traffic caused by a “negligent oversupply” of cars? Should the Naderite “food police” encourage lawsuits against the dairy industry for “negligently over-supplying” more cholesterol-rich products than can be absorbed by America’s collective bloodstream? The animal rights or-gani-za-tion, People for the Ethical Treatment of Animals (PETA), has already called for a 10 percent excise tax on the $123 billion of meat we consume, which they claim directly “leads to cardiovascular disease, various cancers, diabetes, osteoporosis, and other illnesses.” We can only assume they are looking for a vegetarian mayor to bring suit.

This type of reasoning destroys the fundamental concept of tort law developed to provide redress for those who suffer wrongs due to the negligent action or inaction of others. Tort law provides a system of individual responsibility and accountability. But these lawsuits turn that principle on its head, in favor of a conspiratorial worldview and a notion of collective guilt, in which businesses are liable for successfully meeting the demands of the market.

The lawsuits brought against the firearms industry are the result of an inexorable combination of ideology and greed. The greed of the trial lawyers involved is obvious. That one of the lead law firms in these cases has previously been sanctioned for recruiting plaintiffs from intensive care units barely merits a footnote in newspaper profiles. Nor should anyone be surprised that mayors of troubled cities would seek alternative funding in a bizarre form of privatization, in which cities provide services, then look for industries to sue to foot the bill.

Mix these dubious motives with the predominant ideology of today’s courts, fed for decades on activist teachings in law schools and from the bench, and the result is disastrous for American companies and consumers. Activist courts encourage those who believe in the absolute rightness of regulation to impose them by any means necessary. Mayors and their attorneys in these cases say that they must sue because legislatures have failed to act. That argument was addressed in the case of Mavilia v. Stoeger Industries (brought in Massachusetts, of all places) more than 15 years ago:

The legislature has on numerous occasions in the past ten years considered banning handguns and has consistently rejected the proposals. . . . Thus the clear inference is that the majority of legislators in Massachusetts also do not feel that the marketing of handguns to the public is an unreasonably dangerous activity or socially unacceptable.

However, the self-appointed elite in the activist bar have chosen to reject years of such judicial precedents and the principle of individual responsibility in order to achieve an outcome that they assume to be right, even if citizens and their elected officials believe otherwise.

If the trial lawyers and desperate mayors win, who will lose? The short answer is all Americans who care about their freedom. The cruel truth is that the costs imposed by these suits will fall hardest on those least able to bear the burden. Even a long series of unsuccessful but hard-fought suits will likely raise the price of firearms out of the reach of the law-abiding poor who are most likely to need firearms for self-defense. Any outcome mandating the use of high-tech “personalized gun” technology will further curtail the self-defense rights of working Americans.

In other words, the lawsuits-like so many other government policies-will hurt the very people they are intended to help.

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