Printed in the USA.
The Gottlieb-Tartaro Report
Issue 051
March, 1999
GUN MAKERS UNDER ATTACK IN COURTROOMS
As virtually every gun rights supporter is now aware, the center of the anti-gun battle has shifted to the courts. We devote a substantial part of this issue to the firestorm of lawsuits that affect your gun rights.
The top story is the recent controversial jury verdict in a New York court case that three gun companies should be held liable for shooting-relating incidents.
The case, Hamilton v. Accu-Tek, et. al, was originally filed in 1995 in the U.S. District Court in Brooklyn by the families of New York shooting victims against 55 firearm manufacturers, distributors and three industry trade associations.
Plaintiffs alleged that the industry’s marketing and distribution practices caused gun-related violence. Ultimately, all but 25 gun makers were dismissed. Of the 25 remaining defendants, the jury decided that only three were negligent and liable and must pay damages -- even though there was no evidence linking the three to the plaintiff’s injuries.
The jury awarded $3.9 million in damages to STEVEN FOX, the one surviving plaintiff.
Six companies were found to be negligent and liable, but were not required to pay damages. Six other companies were found to be negligent, but their negligence did not cause injury to any plaintiffs, and the remaining 10 companies were absolved of any negligence or liability at all.
The jury deliberated for almost six days, and on numerous occasions informed the judge that they were hopelessly deadlocked. Judge Jack Weinstein, however, refused to accept a hung jury and to declare a mistrial, thus setting the stage for the nine women and two men to reach a compromise verdict out of frustration and exhaustion.
The Brooklyn jury’s decision "is an Alice in Wonderland verdict. It makes no sense whatsoever," said Richard J. Feldman, executive director of the American Shooting Sports Council.
"It’s as if the jury threw darts at a target to decide who they would blame and who should be exonerated," said ASSC’s Feldman.
Most importantly, the verdict is sure to be challenged in an appeal, FELDMAN predicted. "We fully expect this decision to be reversed."
A spokesman for Colt’s Manufacturing, one of the defendants, confirmed that an appeal would be filed.
Feldman said, "We have maintained all along, and still maintain, that we are a highly regulated industry. That we abide by the laws governing the manufacture, distribution and marketing of licensed products.
"The blame for violence rests with those who illegally obtain and misuse firearms, and should not be misdirected at legitimate industries by using the courts in efforts to subvert our entire legal system," he said.
The Brooklyn verdict may affect anti-gun lawsuits filed by several cities.
MONDAY-MORNING QUARTERBACKING THE BROOKLYN VERDICT
Is the Brooklyn verdict (Page 1 story) a serious threat to all gun owners?
As with massive tobacco litigation that pressured cigarette companies to pay for treating sick smokers, a growing number of cities want to force gun makers to pay the costs of treating shooting victims.
Can it work? Do gun makers now have reason to fear such bizarre liability lawsuits from cities for shootings?
Because of pending lawsuits filed by several U.S. cities seeking to hold the gun industry liable for "firearms violence," the answer is a loud "YES!"
In a case similar to the one in Brooklyn, Chicago and Cook County have sued manufacturers, charging that stores just outside the city supply criminals, subverting strict Chicago gun laws, which have failed to stem violence.
Other suits filed by Atlanta, New Orleans, Miami-Dade County in Florida and Bridgeport, Conn., allege that gun makers fail to make guns with adequate safety features.
How does the Brooklyn verdict affect those lawsuits?
Jon Hanson, a professor at Harvard Law School, remarked, "I would say it is a mixed verdict, but I would also say that many people believed that none of these cases would succeed, in part because they’re so novel."
Steven Duke, a Yale Law School professor, said, "I think the implications of this lawsuit are ominous, not only for gun makers but virtually any manufacturer of any product. This is just mind-boggling. The next step will be to hold the makers of cutlery responsible for murders committed by people who use knives."
"The Brooklyn suit appears murky in terms of who won or lost," said John R. Lott, Jr., a pro-gun law professor at the University of Chicago and author of the 1998 book More Guns, Less Crime.
"My guess is that unless something radically changes, there’s a high probability that the cities are going to be successful in their legal tactics," LOTT said.
A darker warning came from Sterling Burnett, senior policy analyst at the Dallas-based National Center for Policy Analysis, a conservative think tank.
"Let’s face it," said Burnett. "The jury pool in Chicago and Bridgeport and the other cities now know that some people out there are holding gun manufacturers responsible. That’s not going to go away, even if (the Brooklyn verdict) is overturned."
Should gun makers be worried? Absolutely, says Burnett. "One thing the tobacco industry had on its side that the gun industry doesn’t is deep pockets," he pointed out.
If 50 U.S. cities file suits, the legal defense costs could bankrupt many gun makers.
What do gun rights mean if there is no firearms industry?
Should we sue cities for negligence in failing to produce law-abiding citizens?
NAACP COULD SUE GUN MAKERS
Adding to the lawsuit woes of the firearms industry, the NAACP is considering joining the growing number of cities filing lawsuits against gun makers, NAACP president Kweisi Mfume said at the group’s recent annual meeting.
"We represent a significant constituency that is disproportionately affected by gun violence. The time has come for us to look at the proliferation of handguns," MFUME said.
MFUME said he would present to the NAACP’s 64-member Board of Directors several options, ranging from issuing a resolution that voices concern about guns to joining suits filed by cities including Chicago and New Orleans. The NAACP also could file a separate suit, he said.
"I want to put forth some legal theories we’ve been presented and ask the board for its consideration," MFUME said.
NAACP’s targeting of the gun industry could give further momentum to the courtroom attacks against the industry.
GUN Poll Result from Digital city
Here are questions and answers from an Internet poll conducted by Digital City, America Online’s locally-focused Web network, about recent gun issues. Because respondents volunteer with no random selection, the poll is not scientific, but reflects the opinions of those interested enough to respond.
Question 1: "A jury in Brooklyn, N.Y. has decided to hold some gun manufactured liable for gun violence, agreeing with the claim that gun-makers purposely sell more guns in states with lax gun control laws. Do you agree with the jury that gun-makers are liable for gun-related violence?"
Answers: Yes: 954 (11.0%) No: 7636 (87.7%) Not sure: 114 (1.3%)
Total votes: 8704
Question 2: "The city of Atlanta has filed a negligence suit against gun-makers, claiming the industry designed guns with inadequate safety devices and should have to pay the city’s costs for gun-related violence. Do you think Atlanta has a case?"
Answers: Yes: 983 (11.3%) No: 7452 (85.9%) Not sure: 242 (2.8%)
Total votes: 8677
Question 3: "Do you think cities and counties should be able to sue gun manufactured to recoup the costs of gun-related violence?"
Answers: Yes: 918 (10.6%) No: 7640 (88.1%) Not sure: 111 (1.3%)
Total votes: 8669
Question 4: "Do you worry that these so-called "negligent marketing" lawsuits will inspire a wave of similar lawsuits in the U.S.?"
Answers: Yes: 7797 (89.8%) No: 716 (8.3%) Not sure: 165 (1.9%)
Total votes: 8678
Question 5: "Do you own a gun?"
Answers: Yes: 5588 (66.8%) No: 2779 (33.2%)
Total votes: 8367
WHAT TO DO ABOUT THE LAWSUIT STRATEGY? STATE LAWS TO STOP IT
A week after the city of Atlanta filed its lawsuit accusing 17 gun makers of negligently designing firearms with inadequate safety devices and warnings, Georgia Gov. ROY BARNES, a Democrat, made such lawsuits illegal. He signed into law a bill that makes Georgia the first state to prohibit its cities and counties from taking gun makers to court.
The new law, which went into effect immediately, prohibits any Georgia city or county from filing product liability suits against the firearms industry, reserving that right to the state. The measure affects any pending or future suit.
Gov. BARNES issued a short written statement, saying he’s confident the state can legally restrict the rights of its municipalities.
Atlanta plans to move forward with its suit and challenge the new law, said NICK GOLD, spokesman for Mayor BILL CAMPBELL.
"We don’t feel it’s constitutional for the state to tell the municipalities who they can and cannot sue," GOLD said.
Only a day after Georgia became the first state to shield gunmakers from anti-gun lawsuits, Louisiana Gov. MIKE FOSTER announced his support for a similar bill before the state legislature.
The measure would block a New Orleans lawsuit seeking damages from gun manufacturers for the costs of shootings.
"Georgia had no problem with it," FOSTER said. "And we in Louisiana believe in Second Amendment rights."
However, New Orleans Mayor MARC MORIAL fumed against FOSTER’s decision, saying the bill "is a sad sellout to the money and power of the gun lobby."
Texas also has a bill before the legislature aimed at preventing cities from filing lawsuits that hold gun manufacturers liable for shootings.
Calling such lawsuits "frivolous," Texas State Rep. SUZANNA HUPP (R-Lampasas), introduced a bill that would block cities in Texas from taking gunmakers to court.
"Let’s make it clear this is not the state where we’re going to allow frivolous lawsuits against legitimate businesses," said HUPP. "A gun is a tool that can be used to kill a family or it can be used to protect a family."
HUPP saw her parents killed in 1991 by a gunman who opened fire in a crowded cafeteria in Kileen, Texas. Hupp usually carried a handgun in her purse, even though at that time concealed weapons were illegal in Texas. The day of the shooting, however, HUPP had left her gun in the car.
If the legislation passes, Texas will become the second state to ban gun lawsuits.
HOW GUN-MAKERS ARE HOLDING UP AGAINST THE LAWSUITS
Are gun manufacturers circling the wagons or cowering in the corner? Not at all.
In fact, one of them, Sturm, Ruger & Co, the only publicly traded U.S. small arms maker, is not only sure it can weather the storm, but is also planning to expand its market share.
Based in Southport, Connecticut, Sturm Ruger is marking its 50th anniversary this year. The firm makes rifles, shotguns, pistols and revolvers, along with golf clubs for Ping and Big Bertha clubs for Callaway.
Sturm Ruger was among the defendants in the Brooklyn case.
What does the management say about all the liability lawsuits being thrown their way? WILLIAM RUGER Jr., chief operating officer and the son and namesake of Sturm Ruger’s chief executive, sneered, "It’s the gun’s fault for existing and it’s the gunmaker’s fault for making the gun."
"It really has more to do with the people than the guns," RUGER said. "It’s easier to blame the manufacturer than have people take responsibility for their actions."
RUGER echoed the feelings of millions of gun-owners: "These are criminals after all and it seems to me that they should be prosecuted under the laws that already exist. We comply with every regulation, every law in every state."
The RUGERs are highly offended by the suggestion that any of their 50 models of firearms are of poor quality or in any way defective, as claimed by cities such as New Orleans, Miami and Bridgeport.
WILLIAM RUGER, Sr., works under the philosophy that the company will build products "to a standard so I would want it even if it was made by our competitors."
Sturm, Ruger provides lockable revolver and pistol cases as standard equipment with its handguns. It offers customers who have older models of its six-shooters a free conversion kit to prevent accidental discharges. It runs advertising saying the "right to bear arms" that the Constitution guarantees also carries the responsibility to use those weapons responsibly.
The company’s motto is "Arms Maker for Responsible Citizens." RUGER Junior explains that they do it without any governmental interference or regulations.
So, how are they coping with the current spate of anti-gun lawsuits that threaten to eat up money like a vacuum cleaner?
Sturm, Ruger, which will report its earnings soon, expects to show about $150 million in revenues from weapons for 1998. Total revenues are expected to exceed $200 million. That’s respectable.
But compared to a tobacco company, that’s small. The gun industry does not have deep pockets. Handgun sales, which peaked in 1993, 1994 and 1995, have been level or downward since.
Industry analysts estimated that the No. 1 U.S. handgun maker, Smith & Wesson Corp., would have about $140 million in revenues. The firm is based in Springfield, Massachusetts and is a unit of British conglomerate Tomkins Plc.
Morgan Keegan & Co. analyst DAVID GUTHRIE said, "The gun industry is a mature industry. It was mature about 100 years ago. Basically Ruger is a metals casting company. It is conservatively run. There’s no debt on its balance sheet. It’s a solid company."
GUTHRIE has rated it as a "hold" stock for several years.
RUGER Junior expects to report record longgun sales in 1998 and near-record sales of the same items in 1999 and says he wants to "expand our market share" in the new millennium.
The solid balance sheet means the acquisition of a smaller competitor is "a possibility. But it would have to be a friendly deal. I don’t know that any of them have an interest in being acquired," he said.
That could change with the heavy expenses of defending against lawsuits brought by anti-gun cities. Some less conservative companies could find themselves debt-ridden and vulnerable, with a buyout the only option.
Tough times in the courtroom could mean consolidation in the firearms industry.
PROMISE HER ANYTHING, BUT GIVE HER A...
Some guys say it with flowers. Prince EDWARD, on the other hand, gave his intended, SOPHIE RHYS-JONES, a $5,000 shotgun. She is said to be a crack shot.
Mom, Gun-Rights Advocates Clash
A shouting match developed between the mother of one of the Jonesboro school shooting victims and gun rights advocates on the Arkansas state Capitol steps.
SUZANN WILSON, whose 11-year-old daughter died in the Westside Middle School attack, watched indignantly as gun rights advocates held a news conference criticizing state legislation that she supports.
The bill would hold gun owners criminally responsible if children use accessible guns to hurt or kill someone. The bill was developed in response to the shooting that killed Ms. WILSON’s daughter, three other students and a teacher.
Prosecutors said ANDREW GOLDEN, then 11, and MITCHELL JOHNSON, then 13, used guns taken from the home of ANDREW’s grandfather, DOUG GOLDEN. The boys were sentenced as delinquents to the state Juvenile Justice system.
Relatives of the victims are suing the boys’ families, including DOUG GOLDEN, and the gun manufacturers.
Immediately after the news conference, cameras turned to Ms. WILSON. "It wasn’t a case about protection. It was a case about a grandfather who had a million, trillion guns stored on the wall," WILSON said. "They were stored so the child could break in, take them off the wall, take them to school and blow away my daughter."
Several gun-rights advocates questioned, criticized and taunted her as she continued to talk.
"I’ve got guns, come and get them," one man said.
"We’ve got a right to protect our own homes," proclaimed another over the growing noise.
Before leaving the area in tears, WILSON screamed: "This is not about the Second Amendment; this is about parents burying their children."
G-T REPORT CO-PUBLISHER RESPONDS TO MISLEADING NEW YORK TIMES STORY
The New York Times recently ran a laudatory book review of an anti-gun diatribe, Making A Killing: The Business of Guns in America by TOM DIAZ. The premise of the book as touted in the review by anti-gun writer FOX BUTTERFIELD is that gun-makers produced more powerful guns to make up for lagging sales, and they quickly became popular among criminals.
This kind of anti-gun propaganda is the most difficult to combat: an author has a whole book to spin out one-sided arguments and the book reviewer has ample space to repeat the most sensational points. Those with differing views get a chopped-up paragraph or two on the "letters to the editor" page, if they get anything at all.
Gottlieb-Tartaro Report co-publisher JOE TARTARO thus presents the following response in the interest of truth, which was ignored by the New York Times.
Dear Editor:
The Fox Butterfield article about claims that the gun industry started making more powerful guns to rejuvenate sales (The New York Times, National Report, Sunday, Feb. 14, Page 16) might have contributed more to the public debate if it had looked to sources better informed than Tom Diaz (Making a Killing) and the Violence Policy Center.
There are other explanations for the production statistics quoted in Butterfield’s story. An alternative interpretation of the data more closely follows accepted economic theories of substitution.
In the mid-1980s, the focus of gun controllers shifted heavily to the small caliber .22 and .25 caliber pistols so often preferred for defense because of their concealability but saddled with the "Saturday night special" label of racist origin. Indeed, the state of Maryland created a Handgun Review Board to prohibit sales of the so-called Saturday Night Specials, and other state legislatures considered similar action. One consequence was that police agencies, law-abiding citizens and criminals shifted to larger caliber .38, 9mm and .45 caliber pistols. Indeed, Maryland Department of Justice statistics compiled for the 10 years after the law became effective indicate that the substitution theory applied to criminals: the rate of felonious use of handguns did not decrease after the Saturday Night Special ban as had been hoped, but the level of lethality increased as felons substituted larger, more powerful calibers.
At about the same time, state and local Law enforcement agencies across the country were switching to 9mm, .45 cal. and the newer .40 S&W caliber pistols of higher capacity. Almost simultaneously, the US military adopted the 9mm Beretta, thereby increasing general interest in such calibers among the lawful gun-owning public as well. As should have been expected, gun manufacturers moved to satisfy this new market demand, as well as that created by the increasing number of states which were enacting more liberal concealed carry laws.
The ban on large capacity magazines which was enacted as part of President Clinton’s 1994 Crime Bill also helped switch consumer interest to smaller, concealable but more powerful pistols and revolvers. The combination of more people wishing to legally carry concealed handguns combined with the statutory reduction in capacity of pistols pushed manufacturers to design and produce smaller pistols of larger caliber, with the maximum capacity allowed by law. I referred to these guns in a trend article in the Spring 1996 issue of Gun New Digest* as the "Clinton compacts," because of his consequential influence in their design.
Diaz, the Violence Policy Center and others who supported "Saturday night special" bans and the 1994 magazine capacity restriction, probably are more responsible for the market shift to "more powerful pistols" than anybody in the gun industry.
Sincerely,
Joseph P. Tartaro
Executive Editor Gun News Digest
A quarterly publication of the Second Amendment Foundation
*Copy of the "Clinton Compact Pistols: How legislation and other outside factors affect firearms design" available on request.
OOPS! Army guns sold to civilians without background checks
You know how the National Instant Background Check System (NICS) is the law, right? Well, thousands of old Army rifles have been sold to civilians in the past few years without required criminal background and U.S. citizenship checks, according to the General Accounting Office.
Two anti-gun lawmakers asked for the GAO audit of the long-standing Civilian Marksmanship Program, which has been run by a private group since 1996.
Sen. Frank Lautenberg, D-N.J., and Rep. Carolyn Maloney, D-N.Y., ordered the study to cast the program in a bad light. (LAUTENBERG recently introduced his "Stop Gun Trafficking Act in the Senate to stop batch purchases of guns. He has also said he will not seek reelection.)
Sen. LAUTENBERG said, "The GAO investigation showed that privatization meant the end of Army controls on gun buyers, so even felons could purchase M-1 rifles." However, no felons were named as actual purchasers of any of the guns.
A 1996 law handed over administration of old Army rifle and pistol sales to a private group created by the legislation, the Corporation for the Promotion of Rifle Practice and Firearms Safety.
The program, designed to promote and monitor marksmanship training through affiliated gun clubs, had been in existence since 1903, with the Army selling them old firearms instead of destroying them.
The 1996 law required the corporation to make sure buyers were U.S. citizens and didn’t have felony records. The old Army rifles were to be sold only to club members or clubs. But the GAO audit found the corporation had not routinely conducted such background checks.
After a review of 6,400 M-1 rifle sales between July 1997 and August 1998, the GAO estimated the corporation sold 1,200 to 2,200 of the World War II-era semiautomatics without checks, or 19 percent to 34 percent.
In response to the audit, the corporation said it has improved scrutiny of buyers by sending applicants’ names through the NICS system.
The corporation, based at Fort Clinton, Ohio, also promised to audit sales each year to ensure criminal background checks are conducted and that guns go to only its club members and U.S. citizens.
The GAO didn’t say there was evidence that the Army firearms were used to commit any crimes.
Sen. Lautenberg and Rep. MALONEY used the audit to demand another gun control law. They’re considering requiring a government agency to provide oversight.
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