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Commentary By Max Schulz

Smoking Guns

A big-city mayor trains his sights on weapon makers.

It took a little legal inspiration, but thanks to the tobacco wars another unpopular industry is finding itself fixed in the cross hairs of politicians ravenous for revenue and publicity. The next group of manufacturers attempting to dodge the bullet of predatory civil litigation is the nation's firearms industry. Companies such as Smith & Wesson, Glock, Colt, and Beretta are bracing for a legal fusillade sure to be directed their way. The first round is likely to fired from Philadelphia, the very place where the Second Amendment was drafted.

This spring, Philadelphia Mayor Ed Rendell announced that he is "seriously" considering bringing suit against handgun manufacturers as a way to counter the gun-related violence he says is ravaging his city. And the level of violence is startling. Eighty-two percent of Philadelphia's 410 murders last year were committed with firearms. Gun homicides increased by 102 percent between 1985 and 1995.

"The magnitude of the crisis in Philadelphia is that gun violence is plain and simple out of control," Rendell told the April meeting in Washington, D.C., of the American Shooting Sports Council, the major trade organization for most of the nation's gun manufacturers. "We will do anything, we will try anything, to reduce the carnage which is tearing the heart and soul out of Philadelphia."

When Rendell talks like that, people take notice. Well-known for his ability to get things done quickly, he inherited a fiscal and political mess when he took office in 1992. When Philadelphia's immensely powerful municipal workers walked out on the new mayor, he did more than hang tough. He won pay cuts, vacation reductions, and changes in work rules--and immense popular support from voters that continues to this day.

In true anything-goes fashion, Rendell, a former city prosecutor, thinks a lawsuit seeking damages for the costs the city incurs due to gun violence may be the answer. From overtime for police and paramedics to the money needed to hose blood from crime scenes, Rendell estimates gun violence costs his government $58.8 million each year. And he figures that if the states can pick the pockets of cigarette barons for health costs linked to tobacco use, he should be able to do the same to the makers of the guns most often used in Philadelphia crimes. Rendell plans to make his decision sometime after Labor Day.

The complicated legal strategy is still being developed by the mayor's team. Rendell and his staff have yet to work out answers to a number of basic questions: whether to file in state or federal court, how much money it would cost taxpayers, and how good the chances of winning are.

One of Rendell's top aides admits the legal theories behind the proposed suit are quite novel. "We have to consider a number of factors, like negligence, strict liability, and public nuisance," says mayoral spokesman Kevin Feeley, who insists, "This is not a grandstand play or an attempt to get a headline."

Good intentions aside, the headlines piled up in February when Rendell first started publicly rattling the cages about a suit. But the generally favorable press response glossed over a central consideration: Rendell will have an extremely difficult time winning. Affixing liability to manufacturers for gun-related violence has so far proven to be a nonstarter. While gun makers often are sued by victims or relatives of victims of gun-related violence, no such suit against manufacturers has ever succeeded. (Some gun makers have been held liable when weapons have caused deaths or injuries because they misfired or were otherwise defective.)

In March, a New York jury determined that S.W. Daniel, a Tennessee-based gun company, was not liable for the notorious 1994 murder of rabbinical student Ari Halberstam. Halberstam was riding in a van across the Brooklyn Bridge when a car pulled alongside. Rashid Baz opened fire indiscriminately from the car with a gun containing parts from S.W. Daniel, killing Halberstam. As one juror was quoted in The New York Post, "We're not happy with the fact that these gun companies exist, [but] they didn't pull the trigger." The clear message sent by this jury and others about where responsibility for gun violence lies poses the toughest challenge for a suit against gun makers.

"The problem [such private suits] have had has been getting over the proximate causation hurdle," explains Feeley, Rendell's aide. "When these things happen, there is the matter of some person pulling the trigger. You've heard the expression that guns don't kill people. The proximate causation hurdle is something we have to deal with, too." The height of that hurdle may explain why only one other big-city mayor, Miami-Dade's Alex Penelas, is even known to be considering a similar lawsuit.

Rendell's staff thought it might anchor its lawsuit to the idea that guns constitute a "public nuisance." That approach, however, was dealt a severe blow in March, when the family of a murdered Chicago policeman suing under that theory lost its case against a gun maker.

Still, outrageous and illogical jury decisions certainly are not unheard of in cases where emotions run high. For that reason--and despite the dismal track record of litigation against gun manufacturers--all bets are off if Rendell gives his city the go-ahead to proceed with the lawsuit. In civil litigation, a lot of passion can make up for a deficiency of merit.

Rendell is nothing if not passionate when it comes to the issue of gun violence and the rivers of blood flowing down his city's streets. "I don't want to be a hero," he told the ASSC meeting, pleading that he really doesn't want to sue, but he might have to in order "to protect the people of Philadelphia."

No fewer than four times during his talk with gun manufacturers did Rendell invoke "the heart and soul" of himself or his city, inviting them to "feel our pain." "Believ[ing] with every ounce of feeling I have that there are far too many guns," Rendell relentlessly attacked "rogue companies" which "market to criminals and people in cities."

Rendell manages to maintain a tough-on-crime image while pushing liberal feel-good buttons: He's for the death penalty and mandatory minimum sentences yet quick to blame gun violence on "society" at large. Judging from his performance at the ASSC gathering, the results range from predictable to strange. He's fond of invoking children: "In Philadelphia kids are killing kids at a higher rate" than ever before, he claimed, while noting that his recreation department will launch an "I Can End Violence" campaign this summer that is designed "to tell kids, `You are shooting at the mirror image of yourself....It's basically you, just a different name.'" But he also called for tax dollars to go to gun makers. "Government," he said, "ought to aid you in providing for research and development of personal firearms" that can be fired only by the owner.

Whether Rendell's lawsuit ever has its day in court, it has already won serious concessions. Manufacturers are terrified of what may happen if they are called to fight in court, so they are making efforts to assuage Rendell and stave off a suit.

The ASSC has been dancing a very delicate waltz with a mayor who at any moment could make its members' lives miserable. The group has been praising the virtues of cooperation with Rendell, the White House, and the Bureau of Alcohol, Tobacco, and Firearms. Last October the industry announced it would "voluntarily" adopt child-safety locks on every handgun. Every major manufacturer but one (Colt, which is taking a different approach aimed at personalizing handguns) signed on.

"It is very definitely a response to a possible lawsuit," says Bob Ricker, director of government affairs for the ASSC. "We've watched the tobacco industry with how they have faced similar issues, and the alcohol industry with drunk driving. We don't want to get into a bunker mentality."

But if the ASSC thinks it can buy off Rendell, it will have to adopt many more "voluntary" reforms before the mayor shelves the lawsuit idea for good. While a spirit of amity and cooperation seemed to reign at the April convention, Rendell made it very clear to gun makers that their contrition has just begun.

He presented a list of demands: The industry must endorse legislation working its way through the Pennsylvania Assembly that would limit gun purchases to one per person per month; it must stop selling products which are allegedly attractive to criminals, such as cheap "Saturday Night special" handguns, armor piercing bullets, and so-called assault weapons; and it must stop making guns that can use magazine clips holding more than 10 rounds of ammunition. This final proposal would in effect end the manufacture of all weapons that accept magazines. Progress on these and other "voluntary" reforms must be shown by summer's end, Rendell warned, or the suit may proceed apace.

In which case Rendell will have to answer perhaps the most intriguing question of this whole drama: Whom to sue? His staff, generous and candid in discussing possible tactics, theories, hurdles, and other elements of the suit, is tight-lipped on this point. All gun manufacturers? Just the biggest ones? Retailers? Wholesalers? Makers of bullets? Rendell's aides adamantly refuse to say.

The mayor was far more forthcoming when I posed the question directly to him: "I would sue a lot of people," he boomed. Not just gun makers, he emphasized--anyone responsible for the carnage in his streets. Decrying how in movies these days even the good guys routinely use guns, Rendell stated, with utter seriousness, "I might sue the entertainment industry for glorifying gun violence." He continued, "I might sue the federal, state, and local governments for not providing economic opportunity. I might have to sue ourselves."

Despite their seeming silliness, such wide-ranging and overwrought proclamations have so far had a definite effect: They have prompted the ASSC to acquiesce to Rendell's demands. And yet, just minutes after a talk in which he promised to indict anyone and everyone who makes life miserable in his city, the mayor dropped a hint that his performance was just that--a performance.

As he was leaving the meeting, Rendell was confronted by Mo Stein, who retails guns and sporting goods in the Bronx. Stein told Rendell about how he had just been sued over a freak accident that didn't involve him and took place hundreds of miles away. It turns out that about four years ago, a sportsman was illegally hunting on a dairy farm in upstate New York. The hunter mistook an employee for a deer and fired, killing the man. Just before the statute of limitations ran out, the victim's family filed lawsuits against anyone and everyone possibly connected with the incident. They sued the hunter. They sued the dairy farm. And they sued Mo Stein, who allegedly sold the gun used in the accident. Stein has already paid $20,000 in legal costs to defend himself, and his ordeal is just beginning.

Before Stein could ask Rendell what he thought about that, the mayor emphatically volunteered, "I think there ought to be limits put on your liability." Then he sauntered off, leaving Mo Stein to scratch his head and wonder why Rendell is drawing up plans to sue him over shootings in the City of Brotherly Love.

This piece originally appeared in Reason

This piece originally appeared in Reason