Connecticut Law Review
Vol. 32 (2000): 1425
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.

Symposium Dialogue: Guns and Liability in America

DAVID KAIRYS*
ANDREW J. McCLURG+
TIMOTHY D. LYTTON++
JOHN R. LOTT§
ANNE GIDDINGS KIMBALL**
ROBERT R. SIMPSON+++
JERRY J. PHILLIPS++++
CARL T. BOGUS§§
ANTHONY J. SEBOK***

MODERATED BY JEREMY G. ZIMMERMANN+++ & DAVID KAIRYS

The following is an adaptation of the Dialogue which took place on the [Page 1426] campus of the University of Connecticut School of Law during the 2000 Wiggin & Dana Symposium: Guns and Liability in America on March 3, 2000. In order to bridge the spontaneity of the spoken word with the order of written text, cosmetic editing was performed to the transcript with the goal of preserving the character of the Dialogue ever present.

The Dialogue is divided into two Sessions, as it was on March 3. Session I took place after morning presentations by Professor Kairys, Professor McClurg, Professor Lytton, and Professor Lott. Session II took place after afternoon presentations by Ms. Kimball, Mr. Simpson, Professor Phillips, Professor Bogus, and Professor Sebok. It is hoped that not only the language and substance, but also the spirit of the discussion have been brought to the pages of the Law Review.¾ EDS.

SESSION I

Zimmermann: We have some time for questions and answers. I would ask the audience to line up at the microphone. Please, direct your question to one of the panelists or, if you prefer, the panel as a whole. However, let me know if you have a preference for who should answer your question.

Bogus: I have a question for Professor Lott.

Lott: Just one?

Bogus: Just one. We are short on time, so just one. I will make it a very small, very targeted question. I am interested in your statement about the FBI's UNIFORM CRIME REPORTS' definition of acquaintance. You said it is very broad and would include two people who knew each other for only a few seconds or even for a minute. For example, a taxicab driver and a patron. I find that interesting because that definition does not fit our lay understanding of acquaintance. I wonder where you found that, because I have never found that definition in the UNIFORM CRIME REPORTS nor do I find definitions for friend, boyfriend, girlfriend, or neighbor. More importantly, even if there were a set of definitions, I wonder whether they would control over a common-sense understanding, since this information is based on reporting by 17,000 local law enforcement agencies.

So, can you enlighten us where you get this definition of acquaintance from?

Lott: Yes, as you know, they don't really have a definition in the UNIFORM CRIME REPORTS. You would think it's a pretty important thing to define. [Page 1427]

However, when local law enforcement calls the Justice Department they tell them how to report things to them for statistical purposes. There is a lot of noise with regard to UNIFORM CRIME REPORTS numbers, both in terms of whether crimes are even reported there. Noise also in terms of the consistency across a lot of the numbers, but, you know, you have lots of cases here.

For example, if you have a delivery man drop off a package during the day, and even if he says nothing to the person he's giving it to, if he sees an old lady who's there and the home and she takes the package and he sees she's living by herself, looks like there is a lot of valuable things there, he goes and he tries to rob her later that night and he kills her in the course of the residential robbery, that is going to be classified as an acquaintance murder.

Bogus: Let me just see if I can understand what you are saying. You are saying that hundreds of thousands of law enforcement personnel in 17,000 agencies are calling up someone when they fill out these forms for a weird definition of acquaintance? Is that what you're saying?

Lott: That's the general understanding of what is included when you talk to people at the Justice Department which are in charge of taking these numbers into account. For as long as I know that these numbers have been collected, that has been the general understanding.

When I worked at the Sentencing Commission in the late 1980s and I talked to people at the Justice Department; that was the definition that they knew. When people from law enforcement would call up and ask what would constitute an acquaintance what they would do is give examples.

Rather than a particular rule, they would say, well, here are the types of cases that we would have that we've traditionally classified as acquaintance murders. Those would be the things that would be underneath that definition.

Bogus: Thank you.

Zimmermann: Any other questions?

Lott: Could I ask Professor Kairys a question?

Zimmermann: Go ahead.

Lott: Just a couple of things. We heard from Professor Kairys that one percent of dealers represent a certain percentage of the guns that are used in crime. Professor, have you weighted that by the sales of those dealers? Do you know what percentage of total sales that those dealer [Page 1428] sales make up?

Kairys: That comes directly out of a report called COMMERCE IN FIREARMS IN THE UNITED STATES, issued by the ATF.

Lott: But why don't you think the Clinton Administration weighed it by total sales?

Kairys: The total sales? You could weight it by total sales and the result would not be much different. However, the total sales figures are largely secret.

Zimmermann: I did have one question for Professor Lott. It is in regards to the suicide question, the largest cause of death by firearms. I saw the chart you had in your presentation and, of course, the startling conclusion which might show that when safe storage laws are passed, suicide rates go up. I am not sure that you are not suggesting there is a correlation?

Lott: Well, it's not specifically significant. What I was trying to say is that you had no impact, no net impact. If anything, it seems to indicate it halts the drop that is occurring there, but that result was specifically significant.

Zimmermann: Okay. So assuming that there isn't a study which supports the notion that suicide rates go down if there were more controls on guns or more storage safety provisions, nevertheless wouldn't that be common sense?

Lott: In terms of what is going to happen to total suicides or what is going to happen in terms of gun suicides?

Zimmermann: In terms of gun suicides? Are you suggesting if the guns aren't available then the suicide will happen by some other means?

Lott: Yes. I think that is, overwhelmingly what you find happening. There are so many different ways for people to go and commit suicide. Somebody who is intent on committing suicide will find some other way to attempt it.

I want to briefly respond to one of the statements that was made earlier about the rate at which people are successful in different types of suicides. I think that it is largely determined by whether or not the person wants to be successful. They often pick the type of method of suicide that is going to be successful. Women will commit certain types of suicides and they're [Page 1429] not as successful as men are in committing other types of suicides. Successful in whatever way you want to use the word successful. However, I do not think they want to be as successful. I think it's also a cry for help or an attempt to get attention more than it is going to be in the case of men.

Zimmermann: I'm not as familiar with the studies as you are. It just seems to me to be common sense. If there are less guns available, and guns are much more effective then suicide rates should decrease.

Lott: I think that is related to whether or not someone wants to be successful. If somebody wants to be successful by taking overdoses of sleeping pills, they are going to be successful in doing that. If they want to take six sleeping pills, then they know, probably, that they are not going to be too successful in doing that, though it may get them taken to the hospital and may get them the attention that they are seeking.

There is a recent survey that was done in Criminology of Criminologists who have looked at the availability of guns and total suicide rates. I remember the studies indicated that there was absolutely no relationship between total suicides and the availability of guns.

McClurg: May I respond.

Zimmermann: Yes; Professor McClurg.

McClurg: First of all, there are numerous studies that link higher suicide rates to gun ownership, guns in the home, and particularly guns in the homes of adolescents who attempt suicide.

There are at least eleven studies, and I have reviewed every one of them in my article that I have coming out in the Hastings Law Journal.

Lott: If you look at the quality of statistics in medical journals, you guys would be appalled.

McClurg: Well, I don't think any of us could debate you on statistics and I won't try to do that. I would be afraid that you would make mincemeat of me. I'd like to ask you a specific question?

I was still waiting for all the evidence you were going to give me on why safe storage is a bad thing. In an op-ed piece in The Wall Street Journal, I believe, you made a statement that safe storage would quote, "greatly increase the death rate from crime" because people would be unable to get to their guns on time.

Can you cite to me, not a statistical post-hoc conclusion, but can you cite to me a single incident where a person has been injured because they were delayed in gaining access to a safely stored gun? [Page 1430]

Lott: I can show you where lots of people have been injured because they couldn't get a gun because of waiting periods and things like that.

I'm not sure that's been collected in any type of systematic way. However, you can surely see defensive uses of guns where people go and use them. You're going to have to ask yourself a question. If I have a gun in the safe, at the margin, is it going to make it less accessible for the person, and at the margin, is it going to make it less likely that they're going to be able to get the gun in time to be able to defend themselves? Are you saying you don't think it has any effect?

McClurg: No, I don't. That was part of my talk. I don't think it would have any effect, and there's no evidence. That's why I was asking if you knew of any evidence to support that self-defense claim.

John is an amazing econometrician, and he's done an amazing study, nationwide, and he boasts in his book and it's a good book, like I said, that he covers data from 3,000 counties.

Fifty-four thousand observations, he says, and hundreds of variables available from 1977 to 1994, and the problem is, you draw statistical conclusions from what amounts to post-hoc reasoning. You attempt to control for some variables, but you, yourself, in your book say there are too many variables that explain these things and it's really impossible to account for all of them. I could list a dozen or so that you have not accounted for.

Lott: Well, let's talk about them. And let me ask you one question before you give me a list of variables there. Can you tell me what factors these other studies that you're citing have controlled for? How many observations they have, how many other factors they've attempted to control for that you're citing as good research?

McClurg: No, I think there's a problem with relying on statistical studies because of the post-hoc fallacy, and I have an article here I wrote. The article is called, "Lott's More Guns and Other Fallacies Infecting the Gun Control Debate" and I want to give you a copy. The article attacks reliance on statistical studies in general.

Lott: If you have a specific criticism, I am happy to go and talk about it. Do you want me to talk about causality, in general, in statistics; is that the question?

McClurg: Well, I read it. To John's credit, he makes all his information available to anyone on request, and that is to his credit, and he's certainly an intellectual and honest researcher; and, in the back of his book, he goes through twenty three criticisms of his study, and he responds very [Page 1431] intricately to each one; it is very impressive.

The problem is there have been other published critiques of your study. Dan Black and Daniel Nagin said, "The estimates of the impact of right-to-carry laws on violent crime are disparate. Murders decline in Florida but increase in West Virginia. Assaults fall in Maine but increase in Pennsylvania, nor are estimates consistent within states. Murder increases but rapes decrease in West Virginia; moreover, the magnitudes of the estimates are implausibly large," and it goes on and on.

Lott: Okay. Let's just stop there.

McClurg: Okay.

Lott: And let me make a couple points. One is, I've given the data out to academics at forty-two different universities. At some places, there's been as many as five different academics that have asked for the data. The overwhelming number of studies that have come out from this had been extremely sympathetic. Some people have argued even larger drops than what I was able to find. Some a little bit smaller, but most around the same range.

There have been three critical studies that have been written up using the data, the national data that's there. You are mentioning one of the three studies that are there.

Specifically, nobody has found statistically significant evidence of a bad effect from right-to-carry laws. Okay? The entire debate has been, you have a few people who are saying it's essentially zero, such as Black and Naigen, and then a lot of people who are saying there are big benefits, and the question has been exactly identifying how large those benefits are.

But specifically on the fact that you're bringing up by Black and Naigen, one thing that was a little bit misleading in the quote that you read there is that the data that they were making that claim based upon was not for all of the state. They were looking at just counties over a hundred thousand in population, and when you break that down by the state level, there's only one county in West Virginia that had more than a hundred thousand in population. There are fifty-five counties in West Virginia, so it was dropping out the other fifty-four counties.

When you go and include all the counties from the state just rather than defining West Virginia as just being one county there, in fact, you don't find that type of disparate impact. It was only isolated to one county in that state.

Zimmermann: The debate about statistics reminds me of what a college professor told the class I was in years ago, that statistics can be very misleading. For instance, the average person in the world wears one shoe. [Page 1432] So, you got to put a little thought behind it.

Another question?

Kairys: First of all, the topic of Professor Lott's talk was: "Will the Suits Against Gun Makers Save Lives?" I was really eager to hear him address that. If the suits work they will change the distribution techniques so that less guns get directly in the hands of criminals. I cannot imagine why that would be bad or wouldn't save lives.

Now, on the statistics, I just want to note that there are studies, usually many of them, that contradict almost everything that Professor Lott said. There are also some overriding problems in his analysis. One is that all murder rates have been dropping, so if you look at the murder rates and they drop in a particular state, it is hard to say that that has anything at all to do with what they have done or haven't done about storage problems or the concealed carrying problems.

There is, in statistics, a difference between correlation and cause. You can say there's a correlation between, say, heroin addiction and drinking beer. All heroin addicts at some time drank beer. Does beer cause heroin addiction? I think not. I hope not.

And I think, overall, there is perhaps a benefit for lawyers in this. We're held, I think, in pretty low esteem around the country as one of the professions, unfortunately, least treasured by the populace, and maybe statisticians could perhaps replace us in this vein with these kinds of debates. But I think what he does taps into the cultural problem that I referred to.

There is a deep-seeded cultural fantasy, I would call it, fed by TV, fed by the media, but not originated by them, and it's about the triumph of good over evil and the glorification of guns as the means of that triumph. And if you catch prime-time TV, you see if you don't see that theme hour after hour after hour, and it's a problem, it's a problem for American culture.

And his statistics about two million defensive uses, I think I do have to note that that comes from his own study which has been greatly contradicted.

There are other countries that have high ownership rates and don't have as high murder rates as us, that's true. Culture has a lot to do with it. What we do know is if you make guns readily available in the United States, an intolerable number of people die in this country.

Lott: I'm going to have to talk now. I thought I had made some references to the impact of the lawsuits. You know, take for example New Orleans and some of the others that talk about safe storage, the question is: On net, are there going to be benefits from this if I go and mandate that certain types of electronic locks or other things are going to be imposed or [Page 1433] other types of locks?

I mean, people mention the costs of these locks. The one that comes out in July really isn't the type of smart gun that most people are thinking about where you have a fingerprint that can be read by the gun or a special electronic ring or a radio transmitter on your wrist. Those are going to add hundreds of dollars to the price of guns, even when the reliability issue is dealt with. All of which is a long ways away.

My research tells me that it's poor people who live in high-crime, urban areas, particularly the blacks, who benefit the most from being able to have a gun for protection. Who's going to be priced out of the market when you go and essentially add this couple hundred dollars to the price of a gun that's going to be there?

It's my fear it's going to be those very people who are going to be hurt. What's the impact of essentially imposing this big tax on guns?

Now, we can go and talk about the Clinton Administration numbers, about gun tracing and things like that. If you give me an hour, I'd be happy to do it, but it's basically garbage that the Clinton Administration puts out. I don't know how many times they've been nailed on things. I'm happy to talk about it.

With regard to the statistics, as I said, I've given the data out to lots of people. You basically don't understand how regressions are run. When you're talking about the drops that have been occurring nationwide, all the regressions that I have, essentially go and control for something called "fixed effects by year." This essentially says that if crime rates fell nationally or by region, was there a drop over and above that regional or national drop in these states that changed their laws? That's essentially what that statistical technique helps you deal with.

And let's deal with the issue of causation. If it was merely the correlation that he's talking about, I think it'd be a lot more difficult to put a lot of weight on this. However, just go through the data on concealed handgun laws, not only do you find the fact there's this drop in violent crime that starts in those states that pass the law but you find the drop, over time, corresponds very closely with the percent of the people in the area that has permits.

You also find that switches between different types of crime occur right at the time when these laws go into effect. Robbery turns into something like larceny. You also find criminals moving geographically between adjacent areas with and without the right-to-carry laws right at that point in time when the law goes into effect.

You also find evidence that's consistent in terms of what portions of the population are most likely to benefit in terms of people who are relatively weaker, physically, which is consistent with a lot of other evidence that's out there, and also those areas within a state in terms of the rate which people are victimized and also the rate at which you see relative [Page 1434] increases in the rate at which permits are issued within states.

So, if you have a theory that can put together all those different types of evidence and explain why all those are occurring at the same time, why adjacent areas, one place the crime rate's falling and the other place it's going up to some degree and a smaller degree right at that same point in time and not two or three years later or two or three years earlier, I'd be very interested in hearing what that explanation is.

With regard to the two million defensive gun uses, I've done a survey but there's lots of other people who have done surveys. That estimate is the average of fifteen national surveys that have been done during the 1990s, so it's not just my research out there.

There's lots of problems in looking across countries with regard to data, and I don't like looking at purely cross-sectional data, and that's pretty much what people do when they look at international comparisons. There's some work by Jeffrey Myron that's being done at Boston University where he's put together a really massive time series, cross-sectional dataset across countries.

I'll just give you one example. I was in Hawaii, recently, and one thing that people often point to there, they said, look, Hawaii has strict gun controls and it has a relatively low violent crime rate. There's only about eighteen states that had lower murder rates during the nineties than Hawaii had, and they make the claim that it's because of the higher gun control regulations.

In fact, what you find is that Hawaii's always had a low murder rate, always had relatively low violent crime rates, and if anything, the difference between Hawaii and the mainland has gotten smaller as Hawaii's adopted more and more gun controls over time. And the only way you can really see that, though, is by looking, not only across places, but by following the individual jurisdictions over time to see how they're changing relative to other places that aren't changing their laws over that period of time.

And so, you know, I think the type of work that Jeffrey Myron's doing on international comparisons is the way to go to try to deal with that but, you know, you mention other factors. If you can tell me one other study that has control for even a fraction of the amount of research that I have done before I put the dataset together, I'd be very interested in hearing it. As I said before, the overwhelming majority of studies have found similar results.

Zimmermann: Thank you. [Page 1435]

SESSION II

Kairys: Thank you. Now we will hear questions.

Karwan:[1] I have a question for Professor Bogus. I was just wondering how your externalities analysis is affected by the presence of the Second Amendment? Your analysis seems to view the Second Amendment as imposing an externality that we, a society, must bear, and that is just one of the costs of having the Second Amendment. How will that reality affect gun litigation as differentiated from the tobacco and asbestos litigation?

Bogus: Well, since the Second Amendment only applies to the right of the people to keep and bear arms within the militia organized by Congress and jointly regulated by Congress and the states, and since Congress has declared that to be the National Guard system, I think that the Second Amendment would only relate to a misuse of guns that are National Guard guns.

Karwan: But that interpretation of the Second Amendment is not widely held. That's not how people view this. I am wondering what the common understanding is?

Bogus: That view is only held by the Supreme Court and the rest of the courts. However, you are quite correct about what the public believes. The public believes that there is an individual right to keep and bear arms. The polls also show that the public wishes there was not such a right. That is what the polls show.

In fact, there isn't an individual right. There is only a right to keep and bear arms within the government organized militia. That is the law today; that has been the law at least since U.S. v. Miller in 1938. The may law change which is possible since Scalia and Thomas have indicated that they would like to revisit the Second Amendment. However, unless the law changes, the Second Amendment will not provide an individual right. There is only a right pertaining to the National Guard.

Simpson: I just wanted to point out that the reason why you have the public perception that the Second Amendment provides an individual right to bear arms is due, in large part, to the NRA and their tremendous lobbying efforts and propaganda. As Professor Bogus stated, it is not the law.

Bogus: I am organizing a Second Amendment symposium at Chicago Kent in April. One of the articles does an analysis on Second Amendment [Page 1436] scholarship and I think people will be amazed as to how recent the whole notion of an individual right to keep and bear arms is and when that very first article that took that position appeared.

There have been a lot of articles, it's true, within the last fifteen years, but it all has been stimulated by a lot of NRA money. The NRA has an educational arm that has dispensed six figures a year to scholars and pseudoscholars writing on the Second Amendment and writing on one side of the Second Amendment.

Sebok: Excuse me if my grasp of civil procedure has really weakened since I started teaching torts. As you explained your defendant class action, it essentially would mirror the idea of trying to streamline the ability for certain plaintiffs to seize control of a lawsuit on behalf of other plaintiffs who may or may not be even aware that that lawsuit is occurring as long as minimal notice is provided through some forum. Is that correct?

Simpson: That is absolutely correct.

Sebok: It would seem to me that the interests that are at stake when someone is a plaintiff are different when one is a defendant, because if one is a plaintiff, one might argue that only an opportunity to get redress is being lost if one doesn't have sufficient notice. However, when one is a defendant, a civil liability enforceable by U.S. Marshals is being imposed on you, while a stranger is running this case for you and you are not aware of it except through the forum of sufficient notice.

Now, you could say that the defendant's protection is the sufficient notice, but if that notice is sufficient enough to give all these defendants an idea that they could be held liable, why isn't that sufficient then to produce joinder?

Simpson: Well, the question is, as I have stated before, does not mean that it has to be impossible. Joinder could be a possibility, but the courts would look at whether it would be efficient. In terms of suing 120 wholesalers or 112 manufacturers, the question is not whether joinder is possible but whether the defendant class action is a vehicle that can be used in order to promote efficiency, in order to save costs for the court, and also for the parties. The answer to the question, of course, is yes.

Sebok: Okay. For example, in Sindell v. Abbott Laboratories we had 200 defendants. I do not know how many other DES manufacturers that were out there didn't know the Sindell case was occurring. Just how much notice is sufficient so that no defendant can say later, "Gee, you mean I am now liable and I didn't even know this case was going on?" [Page 1437]

Simpson: That question is actually unresolved at this point. That is the question of what would constitute sufficient notice. One of the interesting problems that the defendant class action poses is under the certification of the class under Rule 23 (B)(1). There is no opt-out provision and there is really no provision for notification. Some courts, recognizing that notice is not mandatory, have required plaintiffs to notify all defendants even though the rules do not provide for notice.

Simpson: I did want to address something that Attorney Anne Kimball stated earlier on the regulation of the gun industry. The Consumer Safety Protection Act has exempted two products, guns and tobacco. Therefore, the statistic I find amusing yet sad is that there are four federal safety regulations that have to deal with the manufacture of teddy bears and none for handguns.

Zimmermann: I just had one thing. I did not hear any discussion today with regard to the municipal lawsuits and the question of the municipalities standing in the shoes of the victims, the people that they have had to pay money to or for. Basically, the subrogation argument. How can the municipalities be in any better position than the actual victims of the crimes who have had to be compensated? More importantly, why shouldn't the defendants in the municipality cases have available to them on an individual basis the defenses that would happen if there was an individual lawsuit?

Simpson: You are talking about two different claims.

Zimmermann: Okay.

Simpson: One is the claim, say, where an estate would bring an action on behalf of a victim of gun violence. For example, the Hamilton v. Accu-Tek case was based on victims.

The second claim is that there is direct injury to the cities. One of the things that the judge in the Bridgeport suit overlooked in granting the motion to dismiss was the direct injury to the city.

We have a number of video tapes which show gangs in Bridgeport on rampages spraying and harming city buildings, and shooting out street lights. That is a direct injury to the city.

There are costs that are incurred because the cities, not individuals, have to pay for the costs involved for the care of victims at a city hospital. Those are injuries direct to the city as opposed to individual claims.

Bogus: Mr. Simpson, I'd like to just follow up on your statement. [Page 1438]

Simpson: Yes.

Bogus: Isn't one of the arguments that cities have a duty and the responsibility to protect their citizens and that one of the ways they are protecting public welfare and the safety of their citizens is by enjoining the distribution of handguns in a way that has an adverse impact on safety within the city?

Simpson: That is the reason for the public nuisance components of most, if not all, of the municipal suits. That is absolutely correct.

Kairys: One thing. The costs are usually depicted by the manufacturers in these cases and Anne Kimball described it as almost derivative costs. The costs are certainly not derivative, whatever their significance is, because they are different. They are not the pain and suffering, the loss of work, and the loss of companionship that a victim might get; they are out-of-pocket costs. The city is harmed for the cost of spraying the blood off the sidewalk and the 911 call.

This is also one of the areas where I think public nuisance law is definitely different. There is no problem, at all, with government entities in a public nuisance suit recovering costs. To establish the kind of defenses that Attorney Kimball talked about, I think would require, assuming proof of a public nuisance, an overruling of two centuries of nuisance law.

Sebok: I assume that you're saying that the traditional argument that nuisance law requires control by that person who is accused of the nuisance. That is like a person who runs a dance hall having control of the people actually making the noise, and so the firearms manufacturers are like the manager of the dance hall. If the people who steal the guns are like the patrons, does the control argument falls away. The control argument seems to be a very serious piece of nuisance law. Believe it or not there once was actually a doctrine of nuisance law.

Kairys: I still think it's out there. There are four elements to it. It is as certain as negligence or any other tort. It is a shame Anne Kimball is not here, I think she mischaracterized both what nuisance is and what the control issue is. The nuisance is the marketing and distribution of handguns in a way that knowingly makes them easily available and facilitates criminal access.

In doing that, manufacturers have control at the crucial point. The crucial point is when they put them in the distribution chain. In other words, they have control of the instrumentality at the point where they create the nuisance. [Page 1439]

Sebok: The risk is not the person holding a gun at the moment that they sell to them, the risk is the bullet leaving the chamber as some other point.

Kairys: Yes.

Sebok: And I thought you have to have control of the risk?

Kairys: Well, the control issue is very different, again, in nuisance than it is in other torts. You have to show that they created or contributed to, by their conduct, a public nuisance, and they have to have some control in that regard. Additionally, they have to be able to ameliorate by their conduct, and we think we have to prove that, and we're quite willing to prove it. They could ameliorate, for instance, if they limited multiple sales. In the Philadelphia data, there was somebody who bought 104 in a year. That is statutorily legal, there is nothing that prohibits that. The question is whether it creates liability. They should be and could be monitoring these dealers and distributors. We say they do have the power to ameliorate, that's the kind of relief we would ask for.

Zimmermann: David, has any court endorsed the public nuisance approach that you favor?

Kairys: The first court that went down the elements did. It was a private case. I guess you should expect these kind of permutations of these things once they get started. It is an individual case from the City of Chicago, not a city case. It raises the same public nuisance facts, very specifically. It is a specifically pleaded complaint.

Zimmermann: What was the name of the case?

Kairys: Ceriale v. Smith & Wesson Corp. In the initial ruling the private individual could recover damages. The plaintiff sued on behalf of someone who was shot and killed. The court ruled, in denying a motion to dismiss, that the manufacturers conduct created a public nuisance.

The court is now reconsidering whether the individual victim in a public nuisance case has standing to recover damages. The governmental plaintiff really doesn't have that problem.

Dubitsky:[2] I have two quick questions. First off, with all the trail blazing that gentlemen like yourselves and this litigation is doing, aren't you afraid that these same doctrines are going to be applied to other prod- [Page 1440] ucts, for instance, spray paint, fatty foods, and anything else that is injurious, in general, to society? Can't these same doctrines be applied to just about anything? Doesn't that open society up to litigation that isn't going to be helpful?

The second question is specifically addressed to Mr. Bogus. Could you explain a distribution system, short of banning all firearms, that would actually work?

Bogus: In answer to your first question, if you have a risk utility test, and you say that liability will be imposed on all products that impose a higher cost on society than benefits, do you slide down a slippery slope and impose liability on McDonald's hamburgers and Baskin's ice cream because it has a high fat content and knives and ladders and everything else? The answer is no. That is not even a remote risk for a variety of reasons.

First there are actually very few products that most people will say clearly have risks that outweigh benefits. All products are risky. You can die from a Tylenol tablet or an aspirin or fall off a ladder or get stabbed to death with a knife. Dr. Lott talked about the buckets in which kids are drowned or bathtubs, you can drown in a bathtub, you can drown in a bucket and you can fall off a ladder. You can be stabbed to death with this pen or certainly with a knife. All products have risks. A liability is only imposed if the risks outweigh the benefits for society at large. That is not many products.

Understand that this tort system contains a strong democratic element. You can't win unless a jury says you win. Jurors are not going to be imposing liability on high-fat ice cream and hamburgers or booze. Plaintiff's lawyers are not going to be bringing them because they would go bankrupt bringing such cases, so I don't think that is a concern.

And I am sorry, your second question? Just refresh my recollection.

Dubitsky: To explain a distribution system.

Bogus: Oh, the distribution system. With handguns, I think the distribution system is pretty simple, as I envision it. First of all, handguns would be available to all law enforcement personnel and to the military. Second, they would be available to licensed purchasers. I am kind of outside the tort system here. I am giving you a kind of a public-policy answer to your question. This is a legislative answer.

I think handguns ought to be licensed, and the license ought to be need-based. That is, you don't have a handgun unless you demonstrate a need. The need ought to be demonstrated to the chief of police in your local community with a right to a judicial review. I don't think we ought to be having handguns promiscuously available throughout society.

Some people have a need for it. I would give a license to Salman [Page 1441] Rusdie, and I am sure the chief of police would give a license to him too. However, the problem is when there are guns in 50 percent of American homes and guns in glove compartments, everywhere where access is easy in a moment of rage. Most murders happen to be an impulsive act, and certainly, most suicide is an impulsive act. Data shows that if you get through a bleak moment, the moment of despair, sometimes just ten minutes, most people won't commit suicide, and most won't repeat it.

Suicide is also an ambivalent act. When you're taking pills or slashing your wrists, the lethality is a lot less than when you're putting a gun in your mouth and pulling the trigger. Those are my responses.

Kairys: Let me just add to the first question which is very important. In these cases, the cities are not asking the courts to change the law. In other words, there is no suggestion that in order for us to win, a court must change part of the law.

We are saying, on the nuisance claim, apply the elements of nuisance to the facts, as nuisance has evolved for hundreds of years. Of course there are distinctions and Carl Bogus suggests some. This is, after all, an unusual product because it is designed to kill, and certainly that has some significance here.

I just wanted to highlight the spray paint example. Here is an industry that although the damage that its product does is less significant, and although it acted under some threat of litigation, responded in a very different way than the gun industry. They took measures that limited their sales. They agreed with bans on sales to fourteen year olds. They started training the retail store owners. They set up a program to train them to make sure that teenagers couldn't steal the cans. They have helped stores like Home Depot to construct ways of still keeping the product visible, but making it extremely hard to steal. As a result, they limited their profits. That is the kind of reaction that has been completely lacking in the gun industry.

Grover:[3] As a non-economist, I was swayed by one study that Professor Lott mentioned. It dealt with the migratory nature of crime. It found that when certain restrictions are imposed, a neighboring county in another state saw a spike in crime.

Kairys: Right.

Grover: My concern would be, given the piecemeal nature of the litigation and the fact that it is nationally going to take a good deal of time to play itself out in the various communities, that an unwanted effect might be the target of other communities that might not be able to protect them- [Page 1442] selves.

Kairys: Well, Professor Lott's work has been criticized on that ground. After awhile, won't this change the behavior of burglars and street stick up people? There are just so many factors to be considered in these things and so many ways that behavior can change, that I think it's hard to put much faith in any of the studies Professor Lott cited.

Gwinn:[4] I would like to thank Professor Kairys for moderating the afternoon session. You have been a really good and participatory audience, and thanks, once again, to the Connecticut Law Review, the University of Connecticut Law School, and the law firm of Wiggin & Dana.

Thank you all for coming. The transcript and the video of this symposium will be online at www.connecticutlawreview.org.

* Professor of Law, Temple University School of Law. Symposium Contributions: The Origin and Development of the Governmental Handgun Cases, 32 CONN. L. REV. 1163 (2000); The Governmental Handgun Cases and the Elements and Underlying Policies of Public Nuisance Law, 32 CONN. L. REV. 1175 (2000).

+ Nadine H. Baum Distinguished Professor of Law; Spring 2000: Visiting Professor of Law, Wake Forest University School of Law. Symposium Contribution: Armed and Dangerous: Tort Liability for the Negligent Storage of Firearms, 32 CONN. L. REV. 1189 (2000).

++ Associate Professor of Law, New York Law School. Symposium Contribution: Lawsuits Against the Gun Industry: A Comparative Institutional Analysis, 32 CONN. L. REV. 1247 (2000).

§ Visiting Professor of Law, Yale Law School. Symposium Contribution: Will the Suits Against Gun Makers Save Lives (Mar. 3, 2000)(transcript on file at the Connecticut Law Review, 65 Elizabeth Street, Hartford, Conn.).

** Partner, Wildman, Harrold, Allen & Dixon. Symposium Contribution: Municipal Firearm Litigation: Ill Conceived from Any Angle, 32 CONN. L. REV. 1277 (2000).

+++ Partner, Updike, Kelly & Spellacy, P.C. Symposium Contribution: Defendant Class Actions, 32 CONN. L. REV. 1319 (2000).

++++ W.P. Toms Professor of Law, University of Tennessee College of Law. Symposium Contribution: The Relation of Constitutional and Tort Law to Gun Injuries and Deaths in the United States, 32 CONN. L. REV. 1337 (2000).

§§ Associate Professor of Law, Roger Williams University School of Law. Symposium Contribution: Gun Litigation and Societal Values, 32 CONN. L. REV. 1353 (2000).

*** Professor of Law, Brooklyn Law School. Symposium Contribution: Liability Without Cause? Further Ruminations on Cause-in-Fact as Applied to Handgun Liability, 32 CONN. L. REV. 1379 (2000).

+++ Partner, Wiggin & Dana. Symposium Contribution: Symposium Introduction: Guns and Liability in America, 32 CONN. L. REV. 1159 (2000).

1. Sarah P. Karwan is an associate editor of the Connecticut Law Review.

2. Doug Dubitsky is an associate at the law firm of LeBoeuf, Lamb, Greene & MacRae, L.L.P.

3. Scott Grover is a member of the Connecticut Law Review.

4. James W. Gwinn is co-symposium editor of the Connecticut Law Review.