Constitutional Times: Big Guns

Perhaps you've heard that big-city mayors had to sue because they've been losing sleep over how freely guns are bought and sold in this country. Well, it's funny about that. According to Jake tapper in the July 13 Salon, many of the cities suing gun makers are themselves major distributors of guns, police surplus and otherwise, to the used market. Disposing of firearms in 'gun swaps," generally with no questions asked, has been a handy way for localities like Boston, Detroit, and Alameda County, California, to defray the cost of new police weapons. Boston, for example, attached no strings to resale when it recently got rid of more than 3000-.38s. It has now endorsed a new legal theory that private vendors should be liable because they displayed "willful blindness" to what happened after guns left their hands.

For hypocrisy, it's hard to top that. Not impossible, though. New Orleans was the first city to jump on the gun lawsuit train: "We have been so focused here in New Orleans on getting guns off the street and protecting our citizens," Mayor Marc Morial declared at the press conference. New Orleans recently scored what may be the biggest deal of its kind ever in the U.S. when it recycled to street use through an Indiana broker some 7,300 guns, most of which it had confiscated from lawbreakers. These included TEC-9s and various other semiautomatics whose importation and manufacture Congress banned in 1994. The municipal gun suits demand that manufacturers equip their wares with safety locks, but New Orleans officials attached no such condition to the resale of the guns in their own inventory, only two of which had locks among the thousands they shipped. Nor did they require that the guns be resold only to other police departments, a financially unwelcome stipulation since weapons may fetch only half as much on the market when that particular condition is attached.

Another of the novel legal theories holds it unconscionable for manufacturers to cater to the full demand of shops located in gun-friendly states and suburbs if they can reasonably figure that a certain percentage of the merchandise will wind up in the hands of city residents. But the Big Easy--which merely stipulated that the weapons not be immediately resold in Louisiana ("not in my bayou," as Salon's Tapper puts it)--could easily have predicted what would happen soon after some of the guns in the deal were initially shipped to Texas: They began showing up at New Orleans shops.

With this sort of embarrassment in the wings, whatever possessed the mayors to dream up these suits? They weren't the ones who dreamed them up. As the June American Lawyer recounts in detail, the gun litigation got under way when a bunch of the nation's richest trial lawyers began looking for new worlds to conquer after the successful mugging of the tobacco industry. Following a December pow-wow in Chicago to get their story straight, they began flying around the country to "pitch their services to mayors and city attorneys." Under the terms of contingency fee agreements with the cities, they stand to pocket as much as 30 percent of any trial winnings.

These lawyers are not really interested in law, if by that you mean the old-fashioned idea of a rule that's announced in advance so people covered by it know what's expected of them. Instead, they are quite openly spinning out new liability theories as fast as they can dream them up, asking the courts to penalize the gun companies for not pre-emptively anticipating and complying with those theories in the past. No one seems to care about the dangers of this approach. The retroactive application of new liability theories to tobacco companies was met with almost unanimous approval from the press and scarcely a peep of protest from the business community (see "Retro Style," August/September 1997). Even now that it's clear, the principle will be applied to plunder one industry after another. It's hard to get the business community to offer any resistance in principle, or to detect any real solidarity between people in different industries.

How worried are the plaintiffs' lawyers about going to trial and losing? "As in the war against tobacco, winning in court isn't necessarily the objective of the lawyers," observes Peter J. Boyer in a fascinating article about the origins of these cases in the May 17 New Yorker. "If twenty cities do bring suits, defending against them, according to some estimates, could cost the gun manufacturers as much as a million dollars a day." That would force gun makers to the negotiating table as the only alternative to bankruptcy.

"Judge shopping" also plays a role in the strategy, again in line with the tobacco precedent. (See "Firing Squad," May 1999). Some friendly state judges are willing to dispense "home cooking" to locally influential counsel. On the federal side, according to the July 19 National Law Journal, the NAACP is desperately angling to get its new suit against gun makers heard by Brooklyn's extremely liberal senior-status Judge Jack Weinstein, because the underlying theories "might not succeed in any other courtroom in America" -- a truly damning commentary on how weak the case is. Weinstein, you may recall, presided over Hamilton v Accu-Tek, the only case so far in which a jury has bought the idea of holding manufacturers responsible for gun violence because they should have known that some of their products would end up in the hands of criminals. The jurists did not accept this theory easily: during six days of deliberations, they repeatedly told Weinstein they could not reach agreement, he refused to accept a deadlock.

Judges like Weinstein may be reversed on appeal, but in the meantime the idea is to create as much uncertainty as possible, capitalizing on the difficulty of defending against many different theories in many different places at once, all this aside from the irreducible random factor in all litigation. "(We) have the resources to start a war instead of taking little potshots," trial lawyer John Coale told The New Yorker's Boyer. "Well, we've started a war." Attorney Dennis Henigan of the Center to Prevent Handgun Violence said what he's after is to create a credible threat of liability... The more cities that file, the greater is the threat. So what you really want is a diversity of cases in lots of different regions, lots of different courts to create the greatest threat of liability." You might call this a "spaghetti strategy"; Throw a potful against the wall and see if any strands stick. You might also compare it with what the Irish Republican Army said after its Brighton hotel bombing failed to assassinate Margaret Thatcher: "We only have to be lucky once. You have to be lucky every time."

Polls show that gun suits are unpopular even among voters who are willing to entertain other gun control proposals. Yet it's hard to say when or if the press will turn critical. The New Yorker's account depicts attorney Coale openly chortling over the success of the tobacco lawyers in getting the media to sing in unison out of their songbook. "With Coale directing the political and media ends of the case," as Boyer tells it, "the plaintiffs' lawyers became the prime creators and marketers of a national narrative entitled 'Big Tobacco'. Oh, hee-hee-hee, we just started in on Big Tobacco," says Coale, delighting in the memory. "You know, it was "let's just refer to 'em as Big Tobacco:, Big Tobacco, Big Tobacco, Big Tobacco! Pretty soon, everybody's talking big Tobacco."

You'd think the press, if only from a residuum of professional pride, would at some point revolt against a campaign of manipulation so thorough and profitable that its practitioners can gloat about it in the pages of mass circulation weeklies. But no: Many at major networks and newspapers are apparently content to get suckered the same way in this round too. According to Boyer, the "most important lessons" Henigan brought to the group of trial lawyers for whom Coale is a spokesman "had nothing to do with litigation: but instead related to manipulating public opinion. Henigan believes that it is imperative to steer the argument about guns away from the problematic area of criminal use. "With its inconvenient focus on criminals and instead recast the gun debate as a health issue...guns should be thought of as pathogens and gun ownership, perhaps, as a disease." Once again, the tobacco episode will serve as precedent, this time by reference to the invaluable help Dr. David Kessler gave the litigators when, from his perch at the Food and Drug Administration, he declared that smoking was a "pediatric disease."

In keeping the tobacco companies pinned down and under constant public fire, The New Yorker's Boyer comments, "Kessler provided a particularly valuable ally" to the lawyers. "We were in touch with people at the F.D.A. all the time" Coale says. "There were a lot of faxes, phone calls, and other forms of communication being exchanged." At the time, those who suspected the F.D.A. of playing footsie with the trial lawyers were assailed as demeaning the integrity of a group of independent-minded public servants. Now we learn better.

Boyer notes other political connections that helped the trial lawyers. "When Hugh Rodham, a Florida lawyer who had no experience with product liability, was brought into the group as a 'lead litigator,' few supposed that it was for any reason other than that he was Hillary Clinton's brother," he explains. "The move proved fruitful when, over Thanksgiving with the first family in 1996, Rodham suggested to his brother-in law, the President, that the White House might want to get involved in settlement talks." Clinton agreed and "put his most trusted aide, Bruce Lindsey, on the issue." By now, Boyer concludes, given their power to decide which suits to file next and how to prosecute them, "Coale and his colleagues are guiding the national agenda--a new means of public policy making that can't be found in any civics book."

The reason it can't be found in any civics book is probably that it's so alien to the form of government the Founders thought they were giving us. The June American Lawyer , in its article recounting the origins of the firearms litigation, reports that prominent New Orleans trial lawyer Wendell Gauthier was the first to talk his colleagues into suing gun makers, even though their pockets weren't all that deep. The suit "fit with Gauthier's notion of the plaintiffs bar as a de facto fourth branch of government, one that achieved regulation through litigation where legislation failed."

Remember, it's not our side that's decided to call the trial lawyers a de facto fourth branch of government; That's their view of the matter, in the words of the American Lawyer. Of course, there remains a few differences between this new Fourth Branch and the three original branches the Founders had in mind. For one thing, those who labor in the other three branches of government aren't supposed to use their coercive powers to turn themselves into billionaires.

For another, they have to submit to a great deal of public scrutiny nowadays including sunshine laws, extensive financial disclosures and blind trusts, freedom of information statutes, and much more: whereas, the back rooms where the Fourth Branch does its work of recruiting governmental clients and negotiating settlements remain offlimits to public scrutiny. And then there's a difference that some consider even more important, namely that the Fourth Branch doesn't risk getting slowed down by that anachronistic holdover of an earlier system of governance known as "elections."

Walter Olson is a senior fellow at the Manhattan Institute and edits the Website Overlawyered.com.