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National Rifle Association And The Gun Industry Launch Double-Barreled Attack on Legal Rights of Gun Violence Victims

The firearms industry is America's last unregulated consumer product manufacturer. Unlike virtually every other product�from trucks to toy guns�firearms and ammunition are subject to no federal safety oversight, and commerce in guns is subject to only modest restrictions. This lack of regulation means that the civil justice system is the only mechanism available to regulate the conduct of gun manufacturers. Individual victims of gun violence and major U.S. cities are pursuing litigation in an effort to hold the gun industry accountable for its negligence. But the gun industry and the NRA have launched a two-pronged attack to limit the rights of individuals and cities in an effort to delay or even deny them their day in court.

Prohibiting Cities From Hiring Lawyers To Sue Gun Manufacturers

Several U.S. cities�Chicago, New Orleans, Miami, Atlanta, and Bridgeport, Connecticut�have filed lawsuits against the gun industry. The suits contend that the negligence of gun manufacturers, distributors, and dealers has inflicted tremendous costs on the cities related to police protection, emergency services, and the criminal justice system. Dozens of other cities may follow their lead.

In a desperate attempt to protect the gun industry, the National Rifle Association, joined by business groups such as the U.S. Chamber of Commerce, is pushing for legislation that would restrict the ability of cities to go to court. Two proposed versions of the legislation include: a requirement that states approve lawsuits by the cities; a ban on cities hiring lawyers on a contingent fee basis, in which lawyers are paid only if the suit succeeds. Such proposals to block cities' access to the courts are being pursued at the both the state and federal levels. For example, the Georgia legislature has already passed legislation designed to prevent Atlanta from pursuing its suit against the gun industry. The Governor of Louisiana has announced his support for legislation to block New Orleans' suit, and a Michigan lawmaker has made clear his intent to introduce legislation to ensure that Detroit and other Michigan cities cannot sue the gun industry.

Such legislation would, in effect, deny many cities the right to pursue cases against the gun industry. Many smaller cities, and even some larger ones, simply do not have the resources to try such cases. Moreover, private lawyers often provide essential expertise in developing winning theories, as was the case in the tobacco litigation. Preventing cities from hiring outside lawyers would slam the courthouse door on many cities, and hence on their citizens. Such legislation would also raise serious constitutional concerns regarding the right of citizens and their representatives to pursue justice in the courts.

Restricting State Class Action Lawsuits

The business community�including the firearms industry�has named as one of its top federal priorities for the 106th Congress a bill to radically alter state court jurisdiction over class action lawsuits. The bill would allow corporate defendants to remove state class action lawsuits to federal court when any plaintiff is from a different state than any defendant. This would have serious adverse consequences for plaintiffs pursuing or contemplating litigation against the gun industry.

Citizen lawsuits�including class actions�are often the only method to force manufacturers of defectively manufactured or designed firearms to make their guns safer. Class actions are an important tool that provides a way for many citizens to aggregate small claims that may be too expensive to litigate individually.

For example, Remington Arms settled a class action suit in 1995 for $31.5 million. The suit involved 12 models of shotguns manufactured over a 35-year period. The plaintiff shotgun owners alleged that the guns' barrels were made from insufficiently strong steel and therefore prone to explode. As part of the settlement, Remington agreed to upgrade the steel used in its shotguns and to distribute a Shotgun Safety Bulletin warning of the hazard of shotgun barrel explosion. Since no federal safety agency has the authority to issue a recall of defectively manufactured firearms, a lawsuit is the sole mechanism for such gun owners to seek redress.

The so-called "Class Action Fairness Act" would force most state class actions into federal court. This would provide distinct advantages for gun industry defendants for the following reasons:

  • Justice for victims will be delayed. The federal courts are currently plagued by high levels of judicial vacancies and a crushing case load. In 1997, there were 75 judicial vacancies, with 33 of those vacancies classified as "emergencies," meaning that they had been vacant for at least 18 months. Moreover, 22,603 civil cases were pending for three years or more. As an example of the delays that plaintiffs in federal court face, Hamilton v. Accu-tek, a case alleging that the gun industry engaged in negligent distribution and marketing practices, took more than four years to get before a jury.

  • Federal courts usually refuse to expand state law. Like the tobacco suits filed by state attorneys general, lawsuits filed recently by cities and individuals seeking to hold the gun industry liable for its marketing and distribution practices often argue novel, untested legal theories. Federal courts are very reluctant to validate legal arguments that have not been heard and accepted by state courts, even if those arguments are entirely consistent with existing state law.

  • The bill would deny states the right to manage their legal systems. The bill would transfer responsibility and decision-making regarding matters of state law to the federal courts. In the case of litigation against the gun industry, since virtually all class actions could be removed to the federal courts at the whim of defendant gun makers, this could deny state courts the discretion to recognize new theories of liability and to decide the fate of their state's citizens.

This two-pronged assault on the rights of citizens comes on the heels of the gun lobby's failure last Congress to push through sweeping limits on product liability lawsuits brought by injured consumers. That legislation was defeated in the U.S. Senate when some Senators insisted that guns be exempted from the bill's reach.

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