IL - Anti-gun suit gets a major victory

[Steven Mace]

Anti-gun suit gets a major victory

Public nuisance laws may apply, appeals court says

By Robert Becker and Christi Parsons
Tribune staff reporters
Published January 1, 2002

In a significant victory for gun-control advocates, the Illinois Appellate Court ruled Monday that gunmakers and distributors can be sued on the grounds that their products create a public nuisance.

Marking the first time an Illinois appeals court has considered the novel legal strategy, the decision allows the family of slain Chicago Police Officer Michael Ceriale and relatives of two others killed in gun violence to press their claim in Cook County Circuit Court that firearms manufacturers and distributors have "nurtured a climate of violence" by flooding Chicago and its suburbs with guns.

Writing for the three-member panel, Appellate Judge William Cousins Jr. ruled: "In our view, a reasonable trier of fact could find that the criminal misuse of guns killing persons were occurrences that defendants knew would result or were substantially certain to result from the defendants'alleged conduct."
The decision represents the biggest win to date for gun-control advocates in their drive to use public nuisance laws to hold gunmakers accountable, legal experts say.
Of more than 30 such suits filed around the country, this is the first case to win a favorable appellate decision, said David Kairys, the Temple University law professor who came up with the legal strategy.
"This is really a very strong vindication" of the strategy, Kairys said. "The way the manufacturers are endangering the public health and safety is that they are knowingly and intentionally supplying the criminal market. It's really that simple."

In addition to allowing the Ceriale case to proceed, the Appellate Court's decision could also influence a similar suit brought by the City of Chicago, which is pending before the same panel. The city's suit, which also raised nuisance issues, was dismissed in September 2000 by a Cook County judge.

Lawyers for the city said Monday that the appellate decision in the Ceriale case--while not binding--"gives every indication" that the lawsuit will be reinstated.

In addition to the Ceriale family, plaintiffs in the case pending before Cook County Circuit Judge Jennifer Duncan-Brice include the family of Andrew Young, who was murdered in June 1996 in his car at a stoplight at Clark and Howard Streets.

Defendants in the suit include a number of firearms manufacturers and distributors, including Smith & Wesson, Browning Arms Co. and Bryco Arms.

Attorneys representing gun manufacturers said Monday they had not seen the Appellate Court's decision.

But James Dorr, attorney for two gunmakers, said: "I'm sure we'll consider" appealing the decision to the Illinois Supreme Court.

NRA reaction

Todd Vandermyde, Illinois lobbyist for the National Rifle Association, said gun opponents are trying to get from the court what "they've been unable to get out of the legislature."

"They don't like guns, they don't like gun shops, they don't like people who own guns. So they'll do what they can to run them out of town," Vandermyde said.

Attorneys for the families that brought the case praised the court's decision as "sensible and courageous."

"What the court did is apply time-honored principles of public nuisance law to the situation we have in Chicago," said Locke Bowman, legal director for the MacArthur Justice Center at the University of Chicago.

Lawsuits against the gun industry have cast a new light on the doctrine of public nuisance, the area of law that lets officials put a stop to activities that pose a danger to the public. In more traditional cases, cities have used such laws to put a clamp on unlawful use of fireworks or industries belching smoke.

In recent years, though, Chicago and dozens of other municipalities have tried to use the law to pursue gun manufacturers, alleging that they, too, violate reasonable rights to safety. With Monday's opinion, the private plaintiffs cleared the first hurdle to applying that law to a new set of facts.

Filed in 1998, the lawsuit stems from the gun-related deaths of five young people, including rookie Police Officer Ceriale, 26, who was killed in August 1998 while conducting surveillance of a drug operation at the Robert Taylor Homes.

The lawsuit accused the defendants of "supplying a vast, illicit underground market in handguns in order to meet the demand for weapons of gang members and juveniles."

Attorneys for the families alleged that the design, marketing and distribution of the weapons "combined to create a situation where it was highly likely that the guns would flow into the underground market."

Attorneys for the gun manufacturers have countered that their clients manufacture and distribute a legal product.

Circuit Court rulings

While Judge Duncan-Brice had dismissed some of the claims brought against gunmakers, she ruled in February that the nuisance allegations could proceed.

Duncan-Brice said gunmakers failed to demonstrate that their "actions in distributing and marketing their handguns have been lawful."

Duncan-Brice's decision was at odds with that of Circuit Judge Stephen Schiller, who had dismissed the city's case against gunmakers, saying Chicago had failed to show that it had been vigorous in pursuing enforcement of gun laws on the books.

But Benna Ruth Solomon, chief assistant corporation counsel for Chicago, said that because the city's case uses legal theory similar to the Ceriale case, "on the common elements we should prevail as they prevailed."

In the opinion released Monday, the Appellate Court ruled that if the allegations are proved true, "defendants have the power to control the purposeful creation and maintenance of an illegal secondary market by oversupplying the areas around Chicago with handguns."

Failure to exercise that power would violate the public's rights, even if the gunmakers are following the letter of the law with regard to manufacture and distribution of guns, the court said.

http://chicagotribune.com/news/nationworld/chi-0201010192jan01.story?coll=chi%2Dnewsnationworld%2Dhed

Steve Mace

[Steven Mace]

January 7, 2002

Too many guns?

Jacob Sullum

In August 1998, Chicago police officer Michael Ceriale, a 26-year-old rookie, was shot with a Smith & Wesson revolver during a stakeout at a public housing project. He died a week later. His family blamed Smith & Wesson.

If that strikes you as unreasonable, you're probably not a judge on the Illinois Appellate Court. On Dec. 31, a three-judge panel of the court unanimously ruled that Officer Ceriale's family and the families of four other homicide victims could sue the companies that produced the guns used to kill their relatives.

Briefly put, the plaintiffs argue that gun makers make too many guns. Since criminals use some of them, they say, this overproduction constitutes a "public nuisance."

Until now, no appellate court has bought this theory, which also underlies many of the gun lawsuits filed by local governments in recent years. That includes Chicago's, which a Cook County judge dismissed in 2000.

It now seems likely that the city's suit will be revived by the same panel that allowed the Ceriale case to proceed. "A reasonable trier of fact," the judges ruled, "could find that [gun homicides] were occurrences that defendants knew would result or were substantially certain to result from the defendants' alleged conduct."

The essence of the "alleged conduct" is that firearm makers "oversupplied" dealers in Chicago's suburbs, knowing that some of the weapons would end up in the city, where handguns are banned. "Manufacturers are endangering the public health and safety [by] knowingly and intentionally supplying the criminal market," argues David Kairys, the Temple University law professor who developed this approach to gun litigation.

That certainly sounds bad, but it's hard to see how gun makers can be expected to stop their products from falling into the hands of criminals. Let's assume they can figure out what the legitimate demand ought to be in a given area and restrict their shipments to dealers accordingly. Let's also assume they can do this without running afoul of antitrust laws.

Such coordination plainly would not be enough to prevent criminals from shooting people. The gun fired by Officer Ceriale's killer was originally shipped to a Houston dealer in 1980. No conceivable precaution by Smith & Wesson could have stopped it from being used to murder him nearly two decades later.

"The manufacturers set in motion a chain of events with the foreseeable result being the death of our clients," said Jonathan Baum, an attorney for the plaintiffs. While it's true that gun makers must know that some of their products will be used to commit murder, the only way to avoid that "foreseeable result" is to go out of business.

No wonder Dennis Hennigan, legal director of the Brady Center to Prevent Handgun Violence, called the Illinois Appellate Court's decision "the gun industry's worst nightmare." But gun makers are not the only ones who should be worried. The same logic that condemns them could also be used against manufacturers of any product used by criminals.

Doesn't Chrysler know that its cars will be used in bank robberies and drive-by shootings? Can't Rawlings foresee that thugs will use its baseball bats to deliver vicious beatings? Isn't Stanley aware that adolescent toughs (not to mention hijackers) use its box cutters as weapons?

All these companies, and many others, could be said to "oversupply" their markets, making more of their products than is needed for legal uses. If suing them seems more ridiculous than suing Smith & Wesson, perhaps it's because guns are widely perceived as less legitimate than cars, baseball bats and box cutters.

Yet guns, like these other products, are used for lawful purposes far more often than they are used in crimes. And since one of these purposes is self-defense — for which guns are used some 2 million times a year, according to national surveys — restricting the supply of firearms could cost lives rather than save them.

That's especially likely because criminals, whose stock in trade is the use or threat of violence, are more highly motivated to obtain weapons than is the typical law-abiding citizen. Hence they are more willing to pay the higher prices that would result from a smaller supply.

"Perversely," observes George Mason University law professor Michael I. Krauss, successful Chicago-style lawsuits "would put a relatively greater percentage of the nation's weapons in criminals' hands, and a smaller percentage in the hands of honest citizens." That may not be the intent of the litigation, but it's a foreseeable result.

http://www.washtimes.com/commentary/20020107-17034294.htm

Steve Mace

[Steven Mace]

Suit over illegal gun sale dismissed

State didn't prove owner culpable

By Rudolph Bush
Tribune staff reporter
Published January 12, 2002

A Cook County judge has dismissed a case brought by the state's attorney's office to stop handgun manufacturers and a Melrose Park gun shop from producing and selling illegal, inexpensive revolvers.

Circuit Court Judge Robert Boharic on Thursday dismissed a request by the state's attorney for an injunction against Donald R. Beltrame, owner of Suburban Sporting Goods on West North Avenue. The suit also named manufacturers and distributors Bryco Arms, Phoenix Arms and others as defendants.

The judge said the state so far has failed to prove that the defendants knew that they were producing and selling illegal firearms.

"They can't prove that in a million years," said Beltrame's attorney, Michael Nash. "This is a big victory."

Boharic, however, gave prosecutors 120 days to refile their complaint.

Beltrame had no idea the weapons he sold were illegal because the state had not included them on a list of outlawed guns, Nash said.

John Gorman, a spokesman for the state's attorney's office, said prosecutors intend to refile and will prove Beltrame knowingly sold revolvers that violated a state statute prohibiting the sale of weapons cast from zinc alloy, which melt or deform at a temperature of less than 800 degrees.

He called the judge's ruling a request for a "technical fine-tuning" of the complaint and said that in some ways the suit has already been successful.

"Once the suit was filed, they stopped distributing these guns and selling these guns," Gorman said.

In his motion requesting dismissal, Nash questioned why authorities sought redress in civil court if they believed they had a criminal complaint against his client.

Gorman said the primary goal was to get an injunction against the sale of such firearms rather than punish one dealer.

"We weren't interested in putting some clerk in jail; we were interested in stopping these type guns from getting on the streets," Gorman said.

The ruling marks the second time Beltrame has beaten prosecution for alleged violations of gun laws.

In August 2000, he was acquitted of federal charges that he sold guns to "straw" purchasers, who in turn sold the firearms to people who cannot legally purchase guns.

http://www.chicagotribune.com/news/yahoo/chi-0201120007jan12.story?coll=chi%2Dnewsaol%2Dheadlines

Steve Mace