http://www.nytimes.com/yr/mo/day/oped/23klec.html

FAIR USE:

The Misfire That Wounded Colt’s
By GARY KLECK
ALLAHASSEE, Fla. — If Eliot Spitzer, New York State’s Attorney General, has his way, more of the nation’s gun manufacturers will follow the lead of the Colt’s Manufacturing Company and cut back big parts of their business to please the advocates of gun control.
When Colt’s announced it would cease making handguns for the civilian market, it cited financial problems attributable in part to pending lawsuits filed by 28 cities and counties against gun makers, including Colt’s. New York State has not filed one of these suits, but Mr. Spitzer’s threat of one has persuaded the gun makers to negotiate with him about his demands that they stop making lower-priced handguns and submit their businesses to oversight by an appointed monitor.

What makes all of this especially interesting is that the governments that have sued the industry have no record of winning in court. Earlier this month, in the first, and so far only, judicial resolution of a municipal lawsuit against a gun maker, an Ohio court dismissed a lawsuit filed by the city of Cincinnati against Colt’s and other gun makers. The court rejected virtually every major legal theory on which this and most other lawsuits against gun makers by governments have been based.

Colt’s, although it was also having problems keeping up with its competitors, had found increasing difficulty financing its operations because lenders feared the impact of the suits. Another gun company, Davis Industries, has declared bankruptcy in the face of similar lawsuits.

The Colt’s case raises the possibility that companies can be driven out of the gun business, or at least major parts of it, by a wave of suits even if courts eventually find that the plaintiffs’ cases have no merit.

Many of the municipal lawsuits have been filed with the assistance of Handgun Control Inc. The legal theories the organization has developed argue that gun companies should be sued because they failed to include certain safety devices in their guns, they marketed their guns negligently because they failed to control retail dealers adequately, and they created a public nuisance (gun violence) and should reimburse municipalities for their costs in dealing with it.

These theories are based on premises that are contradicted by the best evidence. A study reported in the Journal of Quantitative Criminology in 1993 found that the prevalence of guns in general city populations has no net effect on city violence rates, including homicide rates. At least 15 surveys have indicated that guns are used more often by victims resisting crimes than by criminals committing them; the ratio may be as high as 3 or 4 to 1.

And, according to reports from the Bureau of Alcohol, Tobacco and Firearms, few criminals get their guns from gun shows, by thefts from gun stores or as a result of large-scale purchases, through straw purchasers, from licensed dealers.

Promoters of both municipal and private suits insist that their goal is not to bankrupt gun companies, but to pressure them into developing safer guns and marketing more responsibly. But if that were the case, it would make sense to sue only the less responsible companies, sending the message that one could escape this risk by acting more responsibly.

Colt’s is, by the reasoning in the plaintiffs’ own legal arguments, a responsible gun maker. It was the leader in efforts to develop “personalized gun” technology that would make it impossible for unauthorized users to fire a gun. The company was nevertheless sued along with all the other producers, sending the message that relatively responsible behavior will not earn anyone immunity from lawsuits. Similarly, Beretta, one of the few companies to sell a gun with an indicator showing whether it is loaded, has also been sued.

Supporters of the lawsuits rationalize their tactics by asserting that the National Rifle Association has used its power to “thwart the will of the people” in legislatures, forcing gun control advocates to turn to litigation. Polls, however, indicate that, however much Americans support moderate controls, most oppose banning the manufacture and sale of guns.

Regardless of how one feels about gun control, tort law should not be twisted to produce a narrow political goal that cannot be achieved through legislative means.

Gary Kleck, a professor of criminology and criminal justice at Florida State University, is the author of “Targeting Guns.”