Don't Let the NRA Gun Down Civil Justice
By Dennis Herrera
[Originally published in the San Francisco Chronicle, May 9, 2003]
When San Francisco filed suit against gun manufacturers, distributors and dealers four years ago, there was no guarantee our case would prevail. We were fortunate, however, to be joined by 11 other local governments in California in what has been one of the most important cases to face the gun industry.
Today, the case working its way through California's court system is seeking to hold the industry liable for unfair and unlawful business practices in supplying a burgeoning and illicit firearms market, which for state and local governments has exacted too high a price in human lives and public dollars. While victory is never assured in civil law, of course, we presumed one guarantee that we could never have imagined being robbed of four years later: our day in court. That guarantee faces a chilling and unprecedented threat in legislation passed by the U.S. House of Representatives and now set to be considered by the Senate, where Sen. Dianne Feinstein (D-Calif.) will lead the charge to block its passage. Her task won't be easy. The deceptively entitled "Protection of Lawful Commerce in Arms Act" already claims a 52-member majority among its co-sponsors -- a mere eight votes shy of a filibuster-proof lock. And the Bush White House has already indicated its support.
Explicitly stated, the bill purports to bar virtually all "civil liability actions" against "manufacturers, distributors, dealers or importers of firearms or ammunition for damages resulting from the misuse of their products by others." But its implicit aims are far more troubling. It would:
-- immunize gun manufacturers and distributors from liability even when they ignore federal and state regulations limiting the types of guns they may sell and the people to whom they sell them;
-- mandate the dismissal of pending litigation, including San Francisco's, and shield the industry from similar lawsuits in the future;
-- grant what's tantamount to a plenary indulgence from civil wrongdoing to even the most irresponsible and corrupt gun dealers and manufacturers;
-- assure the firearms market of a unique place in America life as the only consumer product to be both exempt from federal health and safety oversight and beyond the reach of civil redress; and
-- endow the gun industry with legal immunity that no institution -- including those of the press and religion, whose freedoms we've long cherished -- has ever enjoyed in American history.
In advancing the case for federal protection for the gun industry, congressional advocates for the NRA cite a dire need to stop what it calls "frivolous" lawsuits. The claim, of course, is an obvious red herring. Courts are sufficiently adept at recognizing frivolous lawsuits, and the tenets of American justice should rightly empower judges and juries -- rather than high- powered Washington lobbies -- to make such decisions.
A case in point was this week's decision by an Alameda County jury to award more than $50 million to a boy left paralyzed after an accidental shooting. The jury found that the gun's manufacturer, Bryco Arms, was liable for a design flaw that resulted in the accident. The law before Congress could eliminate such civil liability for gun manufacturers and distributors, meaning that the victim in this case would have no legal recourse.
What troubles the gun industry, of course, isn't that lawsuits like San Francisco's are frivolous. On the contrary, cases being pursued by my office and some 30 other jurisdictions nationwide have already achieved important milestones in exposing gun industry recklessness, with mounting evidence and an increasing number of high-level whistle-blowers revealing gross misconduct by manufacturers and dealers.
As an elected official in a city that, like many others, faces a severe budget shortfall in the months ahead, I'm still waiting to hear the first principled conservative oppose the bill for what it is: a huge unfunded mandate on local governments; in this case, a taxpayer-funded subsidy for gun industry recklessness.
The flood of guns into illegal markets imposes enormous costs on society, and efforts by San Francisco and others to seek civil redress for the billions of dollars in costs resulting from the unchecked flow of these deadly wares is anything but frivolous. In San Francisco, a report published last year by the city's Department of Public Health estimated average hospital charges involving cases of gun violence to be nearly $30,000 per victim. For the 109 victims of gun violence hospitalized during 1999, the figure represents a total $3.2 million dollars -- of which nearly $2 million was paid from public funds.
That's just hospital costs. And that's just one city. Nationwide, the American College of Physicians estimates direct costs of gun injuries to be more than $4 billion per year, with an estimated additional cost of $19 billion per year accounting for such indirect costs such as lost earnings. And none of these figures can begin to account for the incalculable human costs of an unchecked gun trade that has plagued our streets and schools. The fact is, the congressional bill offers not a single benefit to society other than being a special-interest giveaway to one of the most generous political benefactors in American politics: the National Rifle Association.
And it should come as no surprise that passage of the legislation is atop the NRA's national agenda for the year. Ranked at the top of Fortune magazine's "Power 25" list of lobbying groups in 2002, the NRA's considerable influence in Washington isn't merely wielded through the millions of dollars in campaign contributions it lavishes on favored Congressional allies. According to the Annenberg Public Policy Center, in fact, the NRA spent an estimated $20 million on largely unreported "educational" activities during the 2000 elections alone.
As City Attorney of San Francisco, I'm convinced that the City and its fellow plaintiffs have a compelling case against the gun industry. And while we understand that there is no guarantee of victory in court, we must all recognize there is a profoundly important guarantee now under siege in Congress: access to civil justice.
To single out gun victims -- whether governmental or individual -- for exclusion from civil redress isn't "protection of lawful commerce." It's political payback at the expense of public health and safety.
Dennis Herrera is city attorney of San Francisco.