Special Protections Mounting for Gun Industry

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Special Protections Mounting for Gun Industry3/29/2002 Email Print Subscribe Feature Storyby Dick Dahl(First of a two-part series on special protections enjoyed by the gun industry and how some groups are responding.)South Miami city officials believed that an ordinance to require trigger locks in their municipality would save lives. But on March 20, the 3rd District Court of Appeals ruled that they couldn't do it because state law forbids Florida localities from passing laws that are tougher on guns than relevant state laws.Atlanta city officials believed that the gun industry deserved to bear part of the financial burden carried by the city in responding to gun violence and filed a lawsuit seeking compensation. But on Feb. 13, the Georgia Court of Appeals held that the suit could not proceed. The court said that a recently passed state law, which had been pushed hard by the gun lobby, protected the gun industry from lawsuits by local levels of government.These developments are only two recent examples of the singularly special protections and privileges enjoyed by the gun industry in the U.S. Few, if any, other industries operate with the freedom from regulation that gun makers and distributors do--the direct result of highly effective lobbying over the years by the National Rifle Association and other pro-gun groups.These protective laws comprise a formidable barrier to grassroots activists and potential plaintiffs alike. Despite the fact that polls repeatedly show broad public support for stronger gun laws, these special protections form an enormous obstacle to the kinds of change that most people say they want.The state preemption laws, of the type that nullified the trigger-lock effort in South Miami, have proven to be a hugely successful tool to tie the hands of city and town officials across the country. First introduced in the 1980s as a response to the passage of tough local gun-control laws by some municipalities and fears that the trend would spread, preemption laws now exist in 39 states, according to the Brady Center to Prevent Gun Violence. Simply put, preemption means that no municipality can pass an ordinance that is tougher on guns than relevant state laws.If anything represents the power and influence of the gun lobby, it is the preemption laws, many people believe. As Mark Pertschuk, legislative director at the Coalition to Stop Gun Violence, told Join Together Online, if it weren't for the preemption laws, "we'd have had tons of powerful local ordinances that would have led to strong state laws."In similar fashion, the NRA has rushed to the defense of the gun industry to push for enactment of laws to proclaim gun makers immune from lawsuits. Within a short time span, gun-industry immunity laws now exist in 23 states, according to the Brady Center.People who follow the activities of the NRA and the gun lobby contend that these kinds of strategies, which emasculate local government and prevent the judicial branch of government from performing its duties, are more than slightly hypocritical. "It's so oxymoronic," says Joe Sudbay, legislative director at the Violence Policy Center in Washington, D.C. Referring to people who support these preemption laws, he said, "I'm sure if you asked them where the best decisions are made, they'd say on the local level. Yet here they are, trying to prevent (localities) from making their own decisions on where people can carry guns."Dennis Henigan, director of the Brady Center's Legal Action Project, says he considers it "ironic" that the gun lobby and the gun industry are seeking special protection from lawsuits. "At the same time that they decry the lawsuits as frivolous and without any legal justification, they're running into legislatures to make sure that the courts don't have the authority to actually consider whether these are valid legal claims," he says.The protections provided by preemption and litigation-immunity laws aren't the only exemptions enjoyed by the gun industry. Firearms are also specifically excluded from federal health and safety standards, meaning that there is far greater power to regulate toy guns for safety than real guns. Responding to NRA lobbyists, Congress included the exemption language for guns when it created the Consumer Product Safety Commission in 1972. (U.S. Rep. Patrick Kennedy, D-RI and Sen.Robert Torricelli, D-NJ, have reintroduced a bill this session that would provide the Bureau of Alcohol, Tobacco and Firearms regulatory powers over firearms and ammunition.)"There is no conceivable public-policy reason" for guns' exclusion from consumer-product regulations, Henigan says. "The problem is that as a result of it, the gun industry does not have the same incentives to innovate for safety that other industries have. It means that as far as the safety of gun design is concerned, it becomes a matter simply of state regulation and for the courts." Only one state, Massachusetts, regulates guns as consumer products. A measure that was crafted by former Massachusetts attorney general Scott Harshbarger and carried forward by his successor, Thomas F. Reilly, empowers the AG's office to regulate firearms using the consumer-protection powers vested in it by the state constitution. According to Henigan, 20 other states provide their attorneys general or other state offices powers that are similar to the ones in Massachusetts. Last year, the Legal Action Project issued a report, "Targeting Safety," which examined how states might follow Massachusetts' lead in regulating guns as consumer products."The lack of any federal and very little state regulation of the safe design of guns means that a great deal depends on the tort system," Henigan says. "It's absolutely essential that victims of guns that are unreasonably safe in design have the right to pursue civil remedies in court."There have been some legal victories for gun-violence victims in court. Late last year, the Illinois Appellate Court ruled that a lawsuit which claimed that gun makers contributed to a "public nuisance" by negligently making guns readily available to criminals and juveniles must go to trial. And on Feb. 6, the California Court of Appeal denied an attempt by the firearms manufacturer Beretta block a lawsuit which claims that the gun maker was negligent in designing a gun that was used by an unauthorized user.The public-nuisance theory has also been one of the theories that have driven the wave of municipal and county lawsuits against the gun industry in recent years. Following the lead of state lawsuits against the tobacco industry, the cities and counties who sued gunmakers contend that the manufacturers deserve to pay a share of the public costs caused by gun violence. To date, Henigan notes, the outcomes of these efforts have been mixed. In the 19 cases in which motions to dismiss have been filed, he says, 10 have been dismissed.On March 27, however, municipal litigation per se was dealt a blow when the City of Boston, which had survived a motion to dismiss and was moving toward a first-of-its-kind September trial, announced that it was dropping its suit against 31 gun manufacturers. The city's lawyers said they decided that the city could no longer afford the action during a time of shrinking budgets.The gun lobby has responded to these legal threats by seeking action in their favorite venue: state legislatures. While legislatures frequently enact tort-reform bills to limit the damages that defendants pay, the actions that many have taken on behalf of the gun industry are a special break for one industry.Two of the municipal suits that were dismissed--in Atlanta and New Orleans--provide good examples of how strong is the protection that lawmakers have given the gun industry. In Louisiana, a judge had held that New Orleans had proven a valid claim for damages under state law. Ultimately, the Louisiana Supreme Court upheld the dismissal of the case, however--not because New Orleans had failed to state a valid claim but because the immunity law that the Louisiana Legislature had recently passed prohibited it. In Georgia, the same scenario transpired. A lower-court judge found that Atlanta's claim was valid, but the Georgia Legislature's action to provide immunity to the gun industry killed it."It was only because of the political power of the gun lobby in those state legislatures that the industry is escaping liability in those states," Henigan says.Not only have many legislatures passed laws to protect the gun industry from lawsuits and to stop municipalities from doing anything about gun violence. Responding to NRA influence, many are now altering the laws they'd already passed to allow people to carry concealed handguns ("Gun Lobby Spreads 'New Wave' of Concealed-Carry Activity," Join Together Online, Feb. 14) The new wave of permissable gun-carrying bills removes many of the restrictions in original laws and allows people to carry guns into public buildings and workplaces, for instance. In Utah, for example, Attorney General Mark Shurtleff recently notified the University of Utah that its 25-year ban on firearms does not comply with the state's law on concealed carrying. The university has responded by filing a federal lawsuit to maintain the ban.The gun industry's protected special privileges constitute a formidable impediment to more sensible gun laws in the U.S. Several organizations interested in gun-violence prevention, however, have recently initiated campaigns to fight back. One, the Alliance for Justice' new Gun Industry Watch project, has scored a victory against the gun industry when H & R Block, targeted for a boycott by the project because of the company's connection to the gun lobby, announced that it was dropping a marketing affiliation with the NRA.(Part two of the series will examine the new efforts, such as the H&R Block campaign, to fight back against the NRA and the gun industry.) http://www.jointogether.org/gv/news/features/reader/0,2061,549561,00.html