February 17, 1998|By Joe Mathews | Joe Mathews,SPECIAL TO THE SUN
PHILADELPHIA -- When a city licensing inspector died Friday after being shot in the head by an unidentified robber, Mayor Ed Rendell declared the killing a tragedy. But the mayor also labeled the shooting something else: potential evidence for a civil lawsuit.
Rendell is considering whether to file, on behalf of the city of Philadelphia, a first-of-its-kind legal challenge to the nation's nearly four dozen gun manufacturers. Modeled on the states' legal attack against tobacco companies, the suit would argue that gunmakers have created a "public nuisance" by intentionally saturating urban areas with more handguns than they can reasonably expect to sell to law-abiding purchasers, according to legal drafts obtained by The Sun.
No state or local government has ever pursued such a claim against gunmakers, but legal experts say -- and manufacturers worry -- that if Philadelphia decides to file its suit, it could touch off a wave of litigation across the country.
As damages, cities could claim all the costs associated with shootings, from police and paramedic overtime to the salaries of the city workers who wiped the inspector's blood off North Seventh Street.
"In economic terms, cities are subsidizing the handgun industry by absorbing a substantial portion of the damage done by their product," says David Kairys, a Temple University law professor who was advising Rendell on the matter until last month. "It's a new argument, and time may tell if it's a powerful one."
The appeal of legal action is clear. Nationwide, 41 percent of households contain a firearm, and these guns resulted in 1,356 unintentional deaths, 17,866 homicides and 18,765 suicides in 1994, according to government statistics.
In the past, shooting victims and their family members have based civil lawsuits against gunmakers on "product liability" claims that guns were manufactured poorly or did not include proper safety devices. But such tactics floundered: no gunmaker has ever had to pay damages in a lawsuit deriving from the criminal use of firearms.
The problem, say judges and legal scholars, is that handguns work too well.
Guns work too well
In Philadelphia, about 80 percent of the city's 400-plus homicide victims last year were shot, the highest proportion of America's 10 largest cities. In Baltimore, Commissioner Thomas Frazier has blamed the effectiveness and power of guns for the city's stubbornly high homicide rate, despite a rapidly declining number of shootings.
Rendell, the second-term mayor, knows these statistics by heart. Two years ago, he put together a Handgun Reduction Task Force, with representatives from city and federal agencies. The task force has pushed predictable reforms in policing and in state gun control laws, but has surprised many by exploring a court strategy as well.
"The lawyers on the committee kept raising the question," says Rendell. "Are the gunmakers marketing to criminals and people in the cities? Are these rogue companies?"
One member of the task force was Kairys, a Baltimore native, longtime Philadelphia civil rights lawyer, and Temple professor. Intrigued by the legal attack on tobacco marketing tools like Joe Camel, Kairys and lawyers from the firm of Rendell's former chief of staff were asked by the mayor to study gun manufacturers and draw up a complaint.
Kairys refuses to discuss Philadelphia's case specifically, but his findings are contained in drafts of the lawsuit as well as a %J recently published academic paper. Not only do manufacturers saturate cities with guns, Kairys writes, but they target women and children in advertisements and mislead people into thinking that having a gun in the house makes them safer. (Government studies argue that the opposite is true).
A Ladies' Home Journal ad for Colt shows a mother and daughter at bedtime and reads: 'Self-protection is more than your right it's your responsibility."
At least one gun manufacturer has gone even further, promoting its weapons for their firepower and "resistance to fingerprints." And in a deposition in a federal lawsuit in New York City, a former Smith & Wesson executive accuses gun manufacturers of negligently selling too many guns to urban dealers with questionable reputations.
"The company and the industry as a whole are fully aware of the extent of the criminal misuse of firearms," said the executive, Robert I. Hass. But "none of the [gunmakers], to my knowledge, investigate, screen or supervise the wholesale distributors and retail outlets to insure that their products are distributed responsibly."
Examples of similar statements and advertisements would form the basis of any lawsuit Philadelphia files, lawyers say. Experts say such a claim is so novel that it is hard to gauge its chances of success.
