Suing the Gun Industry

Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts

By Timothy D. Lytton, Editor, University of Michigan Press, Ann Arbor, 418 Pages, $49.50 2006

Reviewed by Heidi Boghosian

In the notoriously violent Sam Peckinpah film “Straw Dogs,” hero Dustin Hoffman defends his family and home from a group of marauders. The movie follows the Western genre, but with one difference—Hoffman doesn’t have a gun. Even staunch gun control advocates probably wish he had a pistol handy to intimidate the intruders and if need be, to fire in self-defense. That’s the reason that guns remain iconic for many Americans. They symbolize the time-honored virtues of defending self, family, and property. But gun control proponents see the relationship between guns and society differently. They condemn aggressive marketing of increasingly lethal weapons, and associate private ownership and lack of regulations with gun violence.

“Suing the Gun Industry,” edited by Timothy Lytton, sets forth how such values inform polar perspectives in the gun debate. Mass tort litigation against the gun industry, with its practical weaknesses, successes, and goals, provides the framework for this collection of thoughtful essays by leading social scientists, lawyers, and academics. Contributors write about firearm violence, gun industry practices, liability insurance, and most important, litigation as potential regulatory mechanism. These informed analyses reveal the complexities that make the debate so difficult to resolve.

Successful litigation against manufacturers of tobacco, asbestos, Dalkon Shield and other products motivated several tort lawyers, joined by activists, politicians, and municipalities, to pool resources and set aim at gun makers. Most often, plaintiffs ask courts to impose design safety standards or marketing restrictions, something that Congress has not done. Critics of unregulated gun sales and ownership claim that the powerful National Rifle Association stymies any chance regulation advocates have in the legislative branch. Tort litigation offers gun control proponents, as contributor Stephen D. Sugarman explains, “the possibility of achieving injunctive relief or a favorable settlement with the gun industry—remedies that might get gun companies to adopt public health measures that are politically implausible through normal legislative channels.” While litigation has largely failed to create new policy, the book’s analysis of its genesis and progression greatly advances the overall discourse.

Litigation probably has a more meaningful role, as Lytton believes, when combined with legislation and regulation. A hybrid approach might eliminate several problems identified by critics of litigation. One such critic is contributor Peter H. Schuck who writes: “this litigation may be producing the worst possible outcome from the reformers’ perspective. Their lawyers, after all, are drilling dry holes at great cost, creating adverse legal precedents, and further energizing already militant pro-gun groups.” Schuck does concede some victories. Lawsuits induced Colt Defense, Inc. to discontinue certain models, and pressured Smith & Wesson to alter design, marketing, and distribution practices to reduce gun-related risks.

A purely litigious approach to implementing gun policies has an inherent problem that informs why a hybrid approach is preferable. Litigation mirrors two larger differences in gun politics. Dan M. Kahan, Donald Braman, and John Gastil identify these differences as, first, a basic misunderstanding of what the controversy is about, and second, which process can best resolve the conflict. “Guns are at the center of an expressive struggle between the adherents of competing visions of the good society—one egalitarian and communal, the other hierarchic and individualistic. What gun laws say about the status of the groups who adhere to these visions matters at least as much to ordinary citizens as what gun laws will do to reduce or increase crime.”

So deep is the misunderstanding of the controversy, and so inflamed the disagreement over which process is appropriate, that a pure mass tort approach may be tainted. As Lytton writes:

Both sides in the controversy over gun litigation have sought to gain an advantage by using one branch of government in order to compensate for lack of influence within another. The debate is no longer merely about the merits of gun control but also about whether to hold the debate in the statehouse or the courthouse.

Lytton convincingly proposes a “complementary model” in which legislatures and courts work together, with courts in a secondary role, to formulate and implement effective regulations. He cautions that litigation may politicize the judiciary and be self-defeating if the gun lobby devotes greater political power on judicial elections. And he criticizes the gun lobby’s efforts to secure industry statutory immunity. “Broad grants of statutory immunity undermine the integrity of the judicial process by resolving lawsuits on the basis of political power rather than legal principle, and they impair the capacity of courts to play a supportive role in refining and enforcing the legislature’s own regulatory policies.”

One invaluable role that litigation can play in a complementary model is information gathering. Tenacious plaintiffs lawyers and civil discovery rules, Lytton writes, may succeed in uncovering crucial information about which gun companies have not been forthcoming:

Shifting the burden of proving causation onto manufacturers would provide them an incentive to maintain and disclose sales records, since this information would be essential to exoneration. This information would also be useful in enforcing federal and state sales regulations and in better understanding the link, if any, between gun marketing and crime….In addition, this information would be useful in courts’ own consideration of the duty issue in negligent marketing cases.

Writing in support of the overall litigation initiative to uncover “stubborn information” about product safety is Wendy Wagner:

…gun litigation can be defended as necessary to produce new information about product safety in a setting where the gun industry faces numerous, unchecked incentives to keep incriminating information regarding gun distribution and manufacture to themselves.…the courts provide litigants with direct access to industry files and personnel, which serves to enhance industry accountability in a way that might not be possible if industry oversight were left exclusively to the political process and agency enforcers.

“Suing the Gun Industry” masterfully reveals the many details contributing to the intractability of the gun debate. Civilian gun owners and staunch advocates of gun laws may never see eye to eye on policy matters, even when envisioning worst-case scenarios such as the fictitious “Straw Dogs” assault on family and home. But one overarching value does seem to be shared by both—the desire to reduce gun violence and save human lives.