The decision by a leading gunmaker to stop producing some of its handguns for sale to the public indicates that the firearms industry, like the tobacco industry, is concerned about the cost of fighting lawsuits filed by local governments.
More than two dozen counties and cities, including Chicago, are suing the gun manufacturers, seeking compensation for police, emergency, court and prison services related to illegal use of handguns.
Some experts suggested the move by Colt’s Manufacturing Co. could be a step toward a broader industry effort to settle those suits before potentially expensive damages are awarded.
“I think they would certainly like to settle,” said Andrew Molchan, executive director of the National Association of Federally Licensed Firearms Dealers, a group composed of retail gun dealers. “Any lawsuit is going to be troubling. They all have to be taken seriously.”
Colt’s said its decision, announced Monday, was not directly related to the lawsuits, and several gunmakers said they had no plans to shift away from the types of handguns that have been subject to the suits.
Despite its public denial that the suits had prompted its decision to eliminate some handgun lines, Colt’s told customers privately that there was a connection. In a letter sent to distributors last week, a company executive said the move was forced by lawsuits filed against gun manufacturers by 28 cities and counties.
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“We have had to face the harsh reality of the significant impact which our litigation defense costs are having on our ability to operate competitively in the marketplace,” Vice President Thomas Kilby wrote. A copy of the letter was obtained by The Associated Press.
Chicago Mayor Richard Daley, suggested the move by Colt’s is a crack in the facade of solidarity among handgun manufacturers.
“I think we are all excited,” he said. “That is just the beginning. This has been a multimillion-dollar corporation that has (been responsible for) a lot of havoc, a lot of death and injuries in America and throughout the world.”
Although the gun industry is under attack in lawsuits around the country, a recent ruling went in its favor.
A suit filed by the City of Cincinnati was thrown out last week when a judge ruled gunmakers cannot be held liable for gun-related deaths because they did not warn buyers about the dangers of the weapons or because the gun was handled recklessly.
Cincinnati’s lawyers said they would appeal and were quick to make comparisons to the tobacco industry’s ongoing legal struggles despite lower-court victories.
A significant case went against the gun industry in a federal trial last February in Brooklyn, where a jury found 15 gun manufacturers responsible for “negligent distribution” of handguns used in killings.
A key witness in that case was a former vice president for marketing for Smith & Wesson, who testified that gun executives could have hindered the illegal circulation of guns by cutting off retailers who were found to have repeatedly sold guns later traced to crimes.
Lawyers representing the industry attacked the legal onslaught.
“These lawsuits are misguided and misdirected,” said John Dorr, an attorney who represents gunmaker Sturm, Ruger & Co. Inc.
“No court has held any company under strict liability . . . for the intentional use of a product to commit an intended result like homicide,” he said. “If you did that, then someone could (intentionally) drive an automobile into a crowd of people and the auto manufacturer could be held liable, and that would be absurd.”
Doug Painter, executive director of the National Shooting Sports Foundation, said Colt’s decision wasn’t “trend-setting.”
“They are different (from other gunmakers) in that they are heavily involved on the military side of gun production and less so on the civilian side,” he said.
Colt’s share of the private handgun market is dwarfed by other manufacturers, in particular Smith & Wesson, the nation’s leading handgun producer with 19 percent of the U.S. market. Colt’s sought bankruptcy protection in 1994 and recently changed chief executives.
Whatever the financial reasons for Colt’s decision, experts agreed that stopping the manufacture of some handguns would not immunize the company against existing claims, unless it became the basis of a deal with the government.
“Colt’s may be trying to get out (of existing claims) by saying, `We’ll agree to stop the manufacture of handguns if we get immunity from past suits, or if our liability is limited,’ ” said DePaul University law professor Bruce Ottley.
That would take legislative action, just as the tobacco suits did.
“They’d have to cut a deal not just with the cities but with Congress, so it would be nationwide,” Ottley said. “Otherwise people could just go to another state to bring individual suits, even if the cities agreed to drop theirs.”
Although the liability of gun manufacturers for the criminal use of their products has not been settled, enough suits have been filed that the companies are being saddled with the expense of defending themselves.
“They’re probably doing a cost-benefit analysis and concluding that they can make enough revenue from products that don’t have the same bad reputation as handguns and aren’t the target of liability suits,” said Douglas Kmiec, a law professor at Pepperdine University in Malibu, Calif.
“Whether there actually is liability depends on the success of those suits,” he said.
In a few cases, juries have found gunmakers liable, but none has been upheld by a higher court.
Nearly 20 years ago, a trial court in Maryland found that manufacturers could be held liable for criminal acts committed with their guns. But the decision was overturned on appeal.
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The appeals court rejected the plaintiff’s product-liability argument that certain guns are inherently defective even when they work as intended. It also said the “ultrahazardous activity” theory did not apply. Under that tort theory, those involved in certain high-risk businesses, such as blasting and excavating, can be held strictly liable for any damage they cause even when they are not at fault.
More recently, a California appeals court considered a similar case involving a victim of handgun violence whose claims had been dismissed by a trial court. The appellate court affirmed the dismissal under the “ultrahazardous activity” theory but said the plaintiffs were entitled to a trial on their claim that the manufacture was guilty of negligence in manufacturing a gun that was particularly dangerous.