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An Englishwoman in Washington: Shot in the dark

A US jury has decided for the first time that gun makers are liable for the harm caused by shootings with handguns. The decision, made in February by a Federal District Court in Brooklyn, New York, found that the arguments developed in last year's high-profile compensation cases brought by smokers against the tobacco corporations could be applied to the handgun industry too.

The verdict has been greeted with a ripple of applause from within the Washington Beltway. Many in the political class were delighted, because prosecutors in the Brooklyn courthouse had succeeded where they failed. Gun control laws are normally blocked on the grounds that the constitutional right to bear arms is guaranteed by the second amendment. Following the Brooklyn decision, however, many predict that a wave of expensive civil claims will pressurise gun manufacturers into greater self-regulation.

Gun manufacturers have complained that their pockets are not as deep as the tobacco industry's. (They made a miserly $1.4 billion from sales in 1997, compared to the $48 billion raked in by the tobacco giants.) They claim the decision will cause job losses and plant closures. During the years when the National Rifle Association was a pillar of Cold War America, the gun manufacturers could have expected to win the day. But in the changed climate of Clinton's America, many in Washington seem to relish the chance to score some publicity points against this unpopular industry.

I don't much like the gun lobby either, but it strikes me that the implications of this case go way beyond those considerations, touching on key questions of democracy and civil liberties. The case illustrates that what matters in America, whether it is the impeachment of the president or changes in constitutional rights, is increasingly decided in the courts rather than through a debate between elected legislators. And a case like this undermines more than the niceties of democratic discussion.

For a start, the question of legal liability has been turned on its head. In the Brooklyn shootings at the centre of the court case, no guns were ever discovered. Instead, a selection of 25 of the nation's leading gun makers were brought to court on the basis that their marketing strategies were negligent because firearms find their way on to the black market. A federal survey found that about 50 percent of shootings in New York involved illegal firearms. Putting these 'facts' together, the plaintiffs argued that it was a fair assumption that these particular shootings were the result of illegal firearms which had been negligently sold.

The logic that holds the manufacturers liable to compensate the victims in this case is dangerously tortuous. Firstly we are talking about guns, not candy or even cigarettes. Personal injury is not a hidden side effect. Guns are legally marketed as lethal weapons. To say that manufacturers are liable when their product does exactly what it says on the label seems strange, irrespective of whether the guns were legally or illegally held. On the question of legality, the Brooklyn plaintiffs never claimed that any gun makers directly supplied illegal markets. They claimed that the manufacturers do too little to prevent criminals getting hold of their products. Does this mean that car manufacturers should compensate victims of joyrider accidents because they have done too little to prevent the joyriders from stealing their cars?

The fact that no specific guns were found means the verdict relies on a form of collective guilt. Eventually, after complaining to the judge that they could not arrive at a verdict, the jury concluded that 15 of the 25 manufacturers named had been negligent and that nine of those 15 were liable for three of the shootings. No wonder the jury was confused. This judgement blurs the line between cause and effect. And if the manufacturers are liable for the shootings where does that leave the shooters?

The anti-gun cases also illustrate another worrying trend in the US legal system - the constant invention of new victims. Unlike the Brooklyn case, in the cases that are now awaiting trial, it is not people who have been shot who are demanding compensation from the industry. First to file suits were major cities like Chicago, Miami and New Orleans. Following the Brooklyn verdict, others, like the black civil rights group the National Association for the Advancement of Colored People (NAACP), are now seriously considering bringing actions. But can these defendants really claim to be victims of the gun industry?

It strikes me as particularly strange that cities claim to be gun victims. If people are going to insist on blaming somebody other than the shooters for gun violence, then could it not be argued that the very same administrations that are now eagerly bringing these suits might hold some responsibility for the violence that takes place within their jurisdiction? Couldn't it have something to do with factors like grotty housing, poor schools and police forces which think nothing of peppering an unarmed black man with 41 bullets, as the NYPD recently did? Should the gun manufacturers take responsibility for this outrage as well?

As for the NAACP, its lawyers claim that black people could constitute a special class of gun victims, since they are disproportionately affected by gun violence. Other black activists are already making a similar claim against the tobacco industry. It seems that the fight for racial equality has now been reduced to an attempt to gain recognition for black people as the most downtrodden, brutalised and helpless victims of everything in American society.

Helen Searls

Reproduced from LM issue 119, April 1999

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