from the Congress Action newsletter

A Criminal's Best Friend

by: Kim Weissman
January 13, 2002

How many times have you driven past the display lot of a local car dealer and seen rows of unsold cars, prices marked down for year-end clearance? Obviously, the automobile manufacturer supplied the seller with more cars than could reasonably be expected to sell within the normal sales year at the normal prices. Go into any sporting goods store and go to the section that sells baseball bats. Rack after rack of baseball bats of many different sizes and weights are on display, far more bats than are sold in a given year. Obviously, both the auto manufacturer and the bat manufacturer have flooded the market with too many cars and baseball bats, so those manufacturers should reasonably foresee that some cars and some bats would end up in the wrong hands.

That is the "logic" of the Illinois State Court of Appeals, and by that logic if anyone steals a car and subsequently kills somebody with it, or if anyone steals a baseball bat and subsequently beats someone to death with it, the manufacturers and sellers of automobiles, and the manufacturers and sellers of baseball bats, would be liable. Even if they fully complied with every local, state, and federal law, regulation, and ordinance on the books regarding the manufacture and sale of automobiles and baseball bats.

The facts of the Illinois cases are simple enough. According to the plaintiffs, the manufacturers sent guns to "irresponsible" distributors and sellers, and the guns ended up in the hands of gang members who used them to kill the victims. The "plaintiffs allege that defendants designed and marketed weapons targeting criminals; distributed firearms through a market structure intentionally created by defendants by relying on low-end retailers who encourage purchasers to illegally transport weapons to Chicago; failed to regulate or discipline known irresponsible dealers; flooded the market in areas surrounding Chicago, knowing and foreseeing that excess firearm supply would be taken to Chicago and possessed and used illegally; and intentionally created and maintained an underground market for handguns."

"The plaintiffs' complaints allege a public nuisance claim" against manufacturers and sellers "who…are all individually responsible for the public nuisance of widely available handguns that are accessible to juveniles in the City of Chicago." The case came to the Appeals Court on an interlocutory appeal (interim while the trial is pending) of the trial court's denial of a dismissal sought by defendants, for the Appeals Court to decide whether a valid cause of action was stated against the defendants for creating and maintaining a public nuisance by selling too many guns in the Chicago area. The Appeals court ruled that a valid public nuisance claim was stated against the manufacturers, even absent any negligent or illegal conduct by the manufacturers themselves.

In its ruling, the Illinois Appeals Court wrote the

"plaintiffs have alleged that defendants intentionally [emphasis in original] created and maintained an illegal secondary gun market, thereby creating and carrying on a public nuisance. Specifically, the complaints allege that the defendants have 'created and maintained this market structure knowing and intending this result.' In our view, contrary to defendant's claims that they have no power to abate the nuisance due to lack of control, the complaints connote that defendants have the power to control the purposeful creation and maintenance of an illegal secondary market by oversupplying the areas around Chicago [or pick any city or town] with handguns [or pick any other inanimate object ever used by a criminal to kill anyone]".

The failure of the manufacturers to control criminals — normally thought of as the job of the local police, but in this era of blame shifting, when the local police fail to control the criminal elements within their jurisdiction, they have to find someone else to blame — would violate the public's rights, even if the gun makers followed the letter of the law with regard to the manufacture and distribution of — guns, cars, baseball bats…or any other object that could be used by a criminal to kill someone. According to the court, "…compliance with the law is not dispositive and merely serves as a 'guideline' in determining whether an unreasonable interference has occurred".

Guns, like many other products, are used for lawful purposes as well as unlawful purposes, and in fact are used lawfully far more often. According to the 1997 National Institute of Justice study Guns in America, "…guns are used far more often to defend against crime than to perpetrate crime". And that doesn't even consider the many millions of times that firearms are used every year for perfectly peaceful and legal hunting and sporting purposes.

All of the lawsuits, indeed, all of the activities designed to restrict the ownership of firearms, serve merely to make it more expensive and more difficult — if not impossible — for law abiding individuals to own guns for lawful purposes. And given the findings of the NIJ study, those restrictions are likely to end up costing, rather than saving lives. Because guns are the tools of their trade, criminals are more highly motivated to obtain guns than the typical law abiding individual; and criminals are, by definition, far less likely to obey the laws restricting gun ownership. Thus they are more willing to pay the higher prices that would result from a smaller supply of guns caused by lawsuits against gun manufacturers, and they are also far more able to obtain guns from illegal sources.

The net result was enunciated by Michael Krauss, Professor of Law at the George Mason University Law School, "Perversely" these 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." So once again, the Brady Center to Prevent Gun Violence, with the help of the Illinois State Court of Appeals, becomes the criminals' best friend and the enemy of law abiding individuals. Their goal is to end handgun ownership, but the reality that the gun-banners refuse to acknowledge is that all they will succeed in doing is disarming the people who are willing to obey the law.

Anti-gun nuts like to morally preen about how "mainstream" their views are; and conversely how out of touch with reality, and how radical, are those people who believe in the right to keep and bear arms. Needless to say, they are ecstatic over this ruling by the Illinois Appeals Court. A member of the Brady Center to Prevent Handgun Violence gushed, "In a very real sense, this is the gun industry's worst nightmare." But one has to question who is mainstream and who is radical and out of touch with reality, when even a reliably (one might even say, rabidly) left-wing newspaper editorialized that the legal theory advanced in this case is a "…fantasy fiction" that "if applied to manufacturers of other products, would create a runaway train in the nation's already litigious-loony legal system." "Such suits" the editorial continued, "would amount to a corporate stick-up in a dark alley." Just what our sagging economy needs — one more means for trial lawyers to destroy yet another American industry. Perhaps the lawyers consider this case to be their small contribution to the economic stimulus legislation that their Democrat Party alter-egos torpedoed at the end of the last session of Congress, their bid to reduce unemployment — of lawyers.

So its all very simple — criminals aren't responsible for killing people, and the police aren't responsible for controlling criminals. Gun manufacturers bear that responsibility. It isn't even claimed that the manufacturers broke any laws in this case. It was simply alleged that the distributors and retail sellers of the guns were among "a core group" of "irresponsible" (the court did not say "illegal") distributors and sellers, that the manufacturers "failed to regulate or discipline known irresponsible dealers", and thus the manufacturers "intentionally created and maintained an underground market for handguns". And so, because they "flooded the market" around Chicago will too many guns (one suspects that any number above zero would be considered too many by some), the gun manufacturers are liable.

But what else can we expect in this blame-everybody-but-the-criminal culture we have created in this country? And in spite of the alleged "new spirit" abroad in the country since September 11, rational thinking and common sense are no more common now than they were on September 10.

Want another example of that? Try this, from the National Organization for Women, commenting on the Houston mother accused of drowning her five children in the bathtub:

"Why was Andrea Yates released from the hospital in a severely depressed state? Was it because her health insurance did not provide coverage adequate to her needs? Why wasn't she given any help with 5 children after being released in this condition? Did her health care providers sufficiently inform her and/or her family about her condition and the attendant risks? Was she receiving appropriate treatment, and if not why not?"

Now we know who to blame for the murder of five children, ages two through seven, are Yates' doctors, the hospital she was in, and her health care insurance company. A representative of NOW, interviewed on Court TV, went even further, blaming all of the above and adding a few more culprits: the husband, and state authorities who allowed Yates to home school her children, and finally named the real criminal in the whole sorry affair: postpartum depression. But it appears that all the excuse makers missed the logic of the Illinois Appeals Court decision — the real criminals in the child-drowning case were the manufacturer of the bathtub and the local water company.

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Illinois State Court of Appeals decision:

National Institute of Justice Research in Brief, "Guns in America":

The above article is the property of Kim Weissman, and is reprinted with his permission.
Contact him prior to reproducing.

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15 jan 2002