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May|June 2003
Bad Neighbors By Emily Bazelon
Casualties of Medicine By Stephanie Mencimer
A Philadelphia Story By David Kairys

A Philadelphia Story

David Kairys on how local politics almost sank his new strategy for suing gun makers.

By David Kairys

IT WASN'T MY USUAL LUNCH CREW. As we introduced ourselves, I had to suppress smiles when the other people identified the agencies they represented. The FBI—I've sued them; the mayor's office—sued them a few times, too; the Philadelphia police—sued them a lot. I'd been a law professor for five years, but the people around the table knew me as a civil rights lawyer. That made me the brunt of many jokes. A deputy police commissioner wondered aloud whether I'd come back from a break and serve papers on him.

We were Philadelphia's newly formed Handgun Violence Reduction Taskforce. We came from law enforcement, gang-control and youth agencies, and neighborhood and religious groups. A few of us were former gang members. We met regularly in 1996 and 1997, brought together by a good friend of mine, Michael DiBerardinis, the recreation commissioner under then-Mayor Ed Rendell. Mike was one of the few people in government who could have gotten this unusual assortment of folks together, or would have thought to. Best known as the leader of the Kensington Joint Action Council, a notably successful multiracial coalition in a working-class area of the city, Mike gets things done with unusual ease and integrity (including serving up great pasta during halftimes of the Eagles' football games). Rendell had tapped him to revive a dormant city department, then broadened his duties so much that I used to joke he was vice mayor.

Our mandate was to do something about the problem of youth violence and guns. This sounded like the kind of directionless effort that ends up with a report no one reads. And while I'd been co-chair of the board of an innovative gang-control agency, I knew little about youth violence and less about guns. But Mike was pushing hard for fresh, concrete ideas. He said that was why he wanted me on the taskforce, and I'd worked with him enough to know it wouldn't be a waste of time.

THE STATISTICS HAVE A DEPRESSINGLY FAMILIAR RING: 50 handgun deaths each day in the United States; three or four times that many injuries. In most large cities, armed criminal violence is still the biggest threat to public health and safety, despite recent drops in crime rates. Yet the toll taken by handguns has an aura of regrettable normalcy. The result is that we rarely ask a basic question: How do new, cheap, readily concealed handguns find their way to urban streets?

Most of us assume—if we think about it at all—that something illegal must be going on. We imagine an underground market of back-alley sales. Yet as I listened to other task force members and read about gun violence and efforts to prevent it, I realized that much of what I thought I knew about guns turned out to be wrong—starting with the common belief that it's mostly stolen guns that get used for crimes. The police, the federal Bureau of Alcohol, Tobacco and Firearms, gang members, researchers, and gun manufacturers all know about the "legitimate" ways in which criminals get guns that are new, right out of the box. A former gang member told us of a corner not too far from our meeting place in downtown Philadelphia where we could buy as many handguns as we wanted.

O.K., someone asked, how do the guns get there? Studies track several well-known channels from factory to street: gun shows, mail orders, straw purchases (made by one person for another who can't legally buy), and, most significantly, multiple sales. Anyone who can pass the background check prescribed by the Brady Act—in most places, any adult who has no criminal or domestic abuse record—can walk out of a gun store with as many handguns as he or she pleases.

Under federal and most state laws, including Pennsylvania's, it's also legal for private owners to resell weapons without running a record check on the subsequent buyer and without reporting or recording the transaction. A Philadelphia-area study done for the task force showed that about half the handguns sold over a 15-month period were purchased by buyers who bought at least one other handgun, and nearly a fifth of all handgun purchases were made by the industry's best customers, people without a license to deal weapons who bought five or more handguns. That's why proposals to limit buyers to one gun a month are cast as "reforms," though it's hard to think of a legitimate reason for buying 12 small, inexpensive handguns in a year.

I was intrigued by the handgun market, although the literature showed little interest in it. More handguns are produced than could conceivably be purchased by law-abiding customers. Areas with weak handgun controls, like the I-95 corridor in the South and in states like Pennsylvania, are oversupplied so they can funnel handguns to stricter states, like New Jersey. Some handguns have features that facilitate criminal use and are so advertised. (A brochure touts the special coating with "excellent resistance to finger prints" on one line of guns.) And manufacturers aren't shy about pushing guns that appeal to criminals. In the 1990s, manufacturers increased production of nine-millimeter handguns—the gun of choice for murderers—although their own market research showed that the nine-millimeter market among law-abiding purchasers was saturated.

A handgun's trip from retail dealer to crime scene is quick and usually legal. A congressional study found that one-third of guns used in crimes and then recovered by police had been purchased within the previous year, and half had been purchased within the previous two years. Almost 90 percent of these guns were not in the possession of the initial purchaser.

MOST STRIKING ARE STUDIES SUGGESTING THAT A VERY SMALL NUMBER of distributors and dealers are responsible for the majority of handguns used in crime. In 2000, ATF released a comprehensive report showing that nationally, about 1 percent of the dealers who sell to the public are responsible for 57 percent of the handguns traced to crimes. ATF traces 200,000 guns used in crimes each year. For each trace, the agency contacts the gun's manufacturer with the model and serial number and requests the identity of the distributor to whom the manufacturer sold the weapon. Over time, these trace requests give the manufacturers a clear picture of which distributors are putting guns into the hands of criminals.

ATF can only enforce the law. Licensed dealers are supposed to report some multiple sales to the ATF, but such sales are not illegal, and no records are kept of resales. Gun manufacturers, who know the harm caused by their products, could easily monitor their distribution system, like manufacturers in other industries. They could drop or restrict distributors and dealers who feed the crime gun market. But at great cost to the rest of us, they choose not to.

One puzzling facet of the handgun market nagged at me. Handguns used to commit crimes constitute a relatively small (but not insubstantial) proportion of the manufacturers' sales. If the companies cracked down on the crime gun market, they would improve their image and their chances of avoiding regulation. So why do manufacturers distribute and market guns in ways that they know have huge human costs?

The answer, as I came to see it, is that the demand for handguns is driven by fear. A gun-wielding robber who gets on the local news scares a lot of law-abiding people into going out and buying a gun for protection. Big crimes trigger even more sales: Columbine and the Washington snipers were very good for handgun sales. The aftermath of September 11, which gun magazines played up, was even better. The role of fear in gun sales and in American society is the theme of Michael Moore's recent documentary, Bowling for Columbine.

The guns that people buy in response to fear are left mainly at home. They're used infrequently in self-defense, and more often in suicides, spousal murders, and school shootings. Fear links the crime market to the much bigger home protection market. In economic terms, there is a "multiplier effect": Each gun used in crime leads to the purchase of others that sit in closets, cars, and lockers. Gun violence spreads like an epidemic, in which, by some twist of logic and culture, the instrument of harm gets treated as the solution.

The Philadelphia task force was interested in the manufacturers' role in marketing handguns, but the group mostly focused on other things, like a program to identify likely young gun-toters and their victims and to intervene before shots are fired. None of us began with thoughts of suing the manufacturers or anyone else. When the idea first occurred to me, I quickly dismissed it. Gun manufacturers hadn't been sued successfully except when a particular weapon was defective. Since most guns work all too well, seeking broad recourse through product liability claims seemed hopeless.

I changed my mind when I came up with a way for cities, counties, and states to sue manufacturers based on how they market the handguns used to commit crimes. My idea relied on existing law, and it offered meaningful relief without restricting anyone's right to buy or sell guns. The lynchpin was the element of common law that dealt with public nuisances.

Public nuisance is the only tort—the area of law about harms that aren't criminal—that creates a duty to the public rather than to a particular individual. To be liable, a defendant must unreasonably interfere with rights that are common to the general public. Unreasonableness comes in four forms: The defendant significantly interferes with the public's right to safety, health, or peace; he continues conduct with a long-lasting effect on one of these rights while knowing or having reason to know about that effect; his conduct is against the law; or his interference with a public right is unreasonable given the circumstances. These elements are long established and settled.

Because it's about protecting the public from danger, public-nuisance law doesn't include some of the standard limitations on torts. Defendants need only to "create or contribute" to the public nuisance; they don't have to directly or "proximately" cause the injury to the persons harmed. City, county, and state officials are appropriate plaintiffs, and public nuisance usually comes into play against a licensed or regulated business, even if it's done nothing illegal. A blacksmith shop could be a public nuisance, for example, if it were located near a residential neighborhood, even if it were operated properly and were there before the houses or apartments. Public nuisance law asks whether the blacksmith shop is compatible with the neighborhood and whether it's unreasonably interfering with the residents' health or safety. Since public danger comes in many forms and from many kinds of conduct, courts have wisely adopted a case-by-case approach.

A city, county, or state could sue gun manufacturers for creating a public nuisance, I believed, by showing that the companies made it easy for criminals to get handguns, even though they knew the deadly consequences. The case wouldn't be about how guns are made or about their defects, but rather about how they're distributed. It wouldn't sever the link between guns and violent crime, but a court could make handguns harder for criminals to get by barring some forms of distribution, and thereby, in some measure, reduce handgun deaths and crimes. And the manufacturers might have to pay back cities for the costs of cleaning up the handgun mess.

Damages would be limited to the cities' actual costs, but these could include emergency healthcare, 911 calls, police, even washing blood off the streets. A public nuisance suit could also help educate the public about how guns get to the street. Since the suit wouldn't seek to restrict who could buy or own handguns, the Second Amendment didn't pose a plausible problem. And the theory met my toughest test for a novel legal claim: It made intuitive sense. How hard would it be to convince juries, judges, and the public that knowingly opening the door for criminals to buy handguns is dangerous and wrong?

AS GOOD AS THE THEORY WAS, I doubted that Ed Rendell would bring the suit. I knew Rendell from our early days as lawyers. In 1968, I'd been a novice public defender and he'd been a novice prosecutor. We'd often opposed each other in court. Even in that setting, he was a consummate politician. Each morning, we arrived with 35 to 50 case files. While I tended to troubling loose ends, Rendell worked the courtroom like a campaign stop. He chatted with clerks, stenographers, police, lawyers, sometimes even defendants. He was an articulate advocate when a case or issue roused his passion. But often, he seemed to lose interest, putting in his time without much focus.

Buzz Bissinger's book on Rendell, A Prayer for the City, captures the smart, likable, sometimes volatile guy with a short attention span that I remember. When Rendell ran for mayor and then governor in the mid-1980s, he failed to emphasize a concrete agenda and floundered. In his second bid for mayor in 1992, by contrast, he focused on Philadelphia's economic woes. By serving up more discipline and less passion, Rendell sloughed off the "loser" label. (He also got a boost from the death of his original opponent, the polarizing and by then Republican Frank Rizzo, a few months before the election.)

As mayor, Rendell reminded me of Bill Clinton. He spoke movingly about Philadelphia's problems and lifted the city's morale, yet he was cautious when it came to making significant changes beyond large budget cuts, and he was a favorite of the city's business establishment. I doubted that he'd test an untried legal theory against the nation's biggest gun manufacturers.

TO MY SURPRISE, RENDELL WAS ENTHUSIASTIC when Mike DiBerardinis and I pitched the lawsuit to him in late 1996. He was disturbed by the easy availability of handguns in Philadelphia, as Bissinger recounts. He liked the suit's focus on distribution—he used the prosecutor's term, trafficking—and its distance from the Second Amendment. He also relished the opportunity to take the lead nationally on a major issue. When he hired me to gather evidence and prepare a case against handgun manufacturers on behalf of the City of Philadelphia, he seemed the same Rendell who as a young lawyer had been a persuasive advocate for the causes he believed in.

I started by reading every public nuisance case I could find. Most of them dated from the 1950s or 1960s, and some were from before World War II. I also investigated the local gun market, visiting or calling stores in and around Philadelphia. They carried the small semiautomatics most frequently used by criminals, often for under $100. I could legally buy as many as I could pay for. For some multiple purchases, the stores were supposed to fill out a form for the ATF. Salespeople told me that in the unlikely event the agency contacted me, I should say I was a collector, and that would be that.

With the help of several other lawyers and city staff members, I collected crime data from the Philadelphia police to illustrate the human toll exacted by easy access to handguns. The fire, police, welfare, and streets departments figured out how much money they spent dealing with handgun crime, so we could quantify the city's costs. We used data about the handguns that were frequently used in crimes to single out the manufacturers we wanted to sue. We tried to fill in the big gaps in the literature about handgun marketing ourselves. For example, the task force did its own study on the numbers of crime guns bought by people who buy more than one gun, the study that showed the percentage of multiple sales in the Philadelphia area.

When I had a handle on the law and basic facts, I started asking others in the field for help. Stephen Teret and Jon Vernick at the Johns Hopkins Center for Gun Policy and Research and Josh Horwitz at the Education Fund to Stop Gun Violence knew the research on guns and violence and prior litigation. Elisa Barnes, a lawyer who'd sued the manufacturers on behalf of victims of gun violence in New York, knew a lot about the marketing tactics of the industry. And her case had already yielded revealing testimony. "The industry's position has consistently been to take no independent action to insure responsible distribution practices," Robert Hass, Smith & Wesson's former vice president for marketing, stated in an affidavit—even though the industry is "fully aware" of "the seepage of guns into the illicit market." The other leading gun control groups, the Brady Center to Prevent Gun Violence and the Violence Policy Center, helped too, although they had their own longstanding agendas. The Brady Center was interested at least in the idea of city lawsuits. However, Rendell didn't want any gun control groups involved in the case. The suit was to be about Philadelphia's response to a public danger, not about gun control.

By the summer of 1997, we had a solid, well-researched case. I couldn't predict the outcome, but I thought a reasonable judge should deny a gun manufacturer's motion to dismiss our complaint. That was how I assessed our prospects for Rendell. Surmounting this initial legal hurdle allows a plaintiff to build a case by asking a defendant for documents and testimony. I'd brought a lot of novel lawsuits, and surviving a motion to dismiss was my regular standard.

Ten days before we planned to file the suit—with Rendell scheduled to go on Nightline the day of the filing—our plans were leaked to a local television station. Rendell was vilified. State Senator Vincent Fumo, a powerful Philadelphia Democrat with close ties to the National Rifle Association, questioned the mayor's sanity and said that if he brought the suit he'd never win statewide office.

For weeks and then months, the suit was in the local and national news. While Rendell stressed that we were relying on settled law, the public-nuisance theory and the facts about gun marketing behind it went largely unexplained. And when the mayor tried to explain, he often got things wrong. I was quoted occasionally, but the media was really interested in one question: Would Rendell sue the gun industry?

I began to ask myself the same question. The mayor used the publicity effectively to talk about the issues, but he seemed to be looking for a safe middle ground. He tried to negotiate a settlement of the unfiled lawsuit. The companies didn't take that seriously. Then Rendell made an alliance with Charlton Heston and the NRA to step up enforcement of existing gun laws, though the point of the suit was that those laws didn't address the easy availability of handguns.

Six months after the news leak, Rendell told The Philadelphia Inquirer that he "very much wants to [file the suit] because I believe with every ounce of feeling that I have that there are far too many guns." That had been his reaction from the beginning, and I think he still meant it. But the press widely reported that the mayor and particularly some of his close advisors and supporters were worried about the fallout that Fumo had threatened. At a news conference in January 1998, Rendell was asked whether he hadn't sued because of the "political damage" to his gubernatorial aspirations. Rendell launched into an angry tirade about the pressures and difficulties of his job. "I'm tired of the crap you have to put up with," he said, "like everybody threatening and extorting you."

I wondered about the political calculus behind not filing: Since Rendell was already closely identified with suing gun manufacturers and with gun control generally—not popular in much of Pennsylvania, with its large NRA membership—I couldn't see how holding back would help him. No Philadelphia Democrat has an easy time running statewide in Pennsylvania, and leadership on an important issue might help with people who weren't already against him. But I was hardly surprised that bringing an untried high-profile lawsuit would involve political calculations; another political calculation had helped get him interested in the first place.

The problem from my point of view was that Rendell wouldn't say that he wasn't going to sue, even though it was clear that was what he'd decided. For months, Rendell and his advisors said they were "thinking." That allowed the mayor to stay at the forefront of the national gun control debate. Meanwhile, as the city's lawyer I couldn't share the work I'd done with other mayors, whose interest in filing public-nuisance suits of their own might have shifted the media spotlight.

I RELUCTANTLY WITHDREW AS COUNSEL for Philadelphia in January 1998. In my letter of resignation, I asked Rendell to release me from the obligation of client confidentiality to the extent necessary to explain the case I'd developed. Otherwise, I wouldn't have been able to share some of the evidence about Philadelphia I'd gathered because it could have been considered the confidences of a client.

When I got no response to this request, I started off on my own—a course I'd hoped to avoid. In a press release, I praised Rendell for his efforts to deal with gun violence while announcing that I'd withdrawn as counsel. Simultaneously, I released a paper (later an article for the Temple Law Review) laying out my theory that gun manufacturers were marketing their products in a way that created a public nuisance. I was careful not to reveal any confidences, which wasn't difficult since Rendell had spoken so much about the case to the media. Still, Rendell's advisors were furious.

I was inundated with requests for information from cities, scholars, researchers, and groups on all sides of the gun control debate. I started working with Larry Rosenthal, a lawyer for the city of Chicago, and then lawyers for other cities. In the fall of 1998, New Orleans and Chicago brought the first city suits against handgun manufacturers. By 2000, they were joined by more than 40 cities and counties, including Los Angeles, San Francisco, Detroit, St. Louis, Atlanta, and New York City, as well as the State of New York. Some of the cases, led by the Brady Center, which wound up playing a major role, emphasized gun safety and defects. Most of them raised my public-nuisance theory based on the facts about gun marketing, and as the cases have developed, that's become their primary focus. I wound up on most of the legal teams. (The views expressed here are my own.) Shortly after taking office, the mayor who succeeded Rendell, John Street, brought me back to file the long-contemplated suit for Philadelphia.

As they have often done in the past, gun makers looked to the legislatures to shield them. Nearly half of the cities' cases were halted by state statutes designed to bar them, and there is now a bill pending before Congress that would shield the gun industry from almost all litigation.

In most of the cases not barred by statute, the manufacturers' motions to dismiss have been denied, which means the cases have gotten further than the state tobacco suits at a comparably early stage. In March, a judge dismissed the complaint of a dozen California cities, but the most recent appellate decisions, in Ohio and Illinois, reversed similar dismissals. And in 2000, several cities reached a settlement with Smith & Wesson, the largest handgun manufacturer, which agreed to restrict and monitor its distributors.

In January, Ed Rendell began his term as the new governor of Pennsylvania, following a campaign in which the NRA and gun enthusiasts attacked him relentlessly. His Republican opponent, State Attorney General Mike Fisher, repeatedly said that Rendell "just doesn't want people to have guns." In response, Rendell—who was elected by a wide margin—noted his "cooperation with the NRA."

David Kairys, the Beasley Professor of Law at Temple University, is the editor of The Politics of Law: A Progressive Critique and of Oxford University Press' new Law and Current Affairs Masters Series.

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