Taking Aim at the Gun Makers

An Interview with David Kairys

Temple University Law School professor David Kairys is a leading civil rights lawyer who has developed a theory for municipal suits against gun manufacturers for their role in urban violence. (The theory is elaborated in the "Legal Claims of Cities Against the Manufacturers of Handguns," in the Spring 1998 Temple Law Review (71 Temple L.R. 1)). Kairys is the editor of The Politics of Law and the author of With Liberty and Justice for Some: A Critique of the Conservative Supreme Court. He is also of counsel to the Philadelphia civil rights law firm of Kairys, Rudovsky, Epstein, Messing & Rau.

Multinational Monitor: How did you become interested in gun control?

David Kairys: At the request of a friend, Michael DiBerardinis, I volunteered to join a task force set up under the authority of the mayor of Philadelphia, Ed Rendell, to look into the problem of youth violence and guns.

DiBerardinis is the Recreation Commissioner of the City of Philadelphia. And he has a reputation here as a person who can get things done and bring people together. He brought together an assortment of people who are very often on the opposite sides of other issues. There were prosecutors, agents of the Alcohol, Tobacco and Firearms (ATF) division of the federal government, Philadelphia police, the U.S. Attorney's office, community activists and gang control activists.

Mike brought all of us together. We went around the room and asked: How is it that this gun violence among youth and adults has become so normal? And how could it be that we could accept this horrific level of death and injury?

MM: When was the meeting?

Kairys: It was in the fall of 1996. The consensus of the first meeting seemed to be that there has to be something that we could do about this. The notion that this is normal, acceptable and that nothing can be done was not accepted in this group, which I really liked. We started thinking about what could be done, and we came up with a range of ideas.

At about that time, I had heard vaguely about the state government lawsuits against the tobacco industry. This was long before there was talk of a settlement. The lawsuits were thought of as rather strange lawsuits to file that had very little chance of success. But something clicked in my mind. If there was some substantial basis for the state lawsuits against the tobacco industry, perhaps there was a basis for a city suing gun manufacturers. I started to look into it.

I realized that the history of litigation in the two industries was rather similar, except the earliest lawsuits against the tobacco industry were filed a few decades ago.

I started looking at why the tobacco lawsuits brought by individuals lost for so long. And what was it that was different about the states bringing the lawsuits. And then I tried to move that into the handgun area. Aside from cases where a particular handgun was claimed to be defective -- say the safety doesn't work, or the gun goes off when you drop it, or it blows up in your hand -- nobody has been able to hold the handgun manufacturer liable.

The problems arise in the areas of causation and duty. In the case of tobacco, whatever the tobacco companies did, smokers continued to smoke after they knew there was some danger and some risk. Most cases didn't get to a jury. But when they did get to the jury, the jurors tended to think that it was a legal product, and people knew they were taking a risk and chose to take that risk.

In a similar way, everyone knows that handguns are dangerous. And in addition, when someone is shot, there is the intervening action of the person doing the shooting who is not only intervening in a civil law sense, but is usually committing a crime.

I started adding up similarities and differences between the lawsuits against the tobacco and gun industries. The claims are different. The real linchpin of the tobacco lawsuits is the addiction issue. Now, after years of discovery, it is clear that the tobacco companies manipulated the nicotine content of cigarettes to get the smoker addicted and keep the smoker addicted.

MM: Have there been cases brought against gun manufacturers?

Kairys: Yes, but they have all lost.

MM: How many cases have there been?

Kairys: Putting aside the ones where there is a particular defect, maybe 25 or 30 cases.

In tobacco, you can substantially undercut the causation and duty problems when the government brings the lawsuit. That's what I started looking at in the gun industry situation. Whatever the particulars of a case -- who shot whom, whether or not there was a crime -- the manufacturers are causing direct harm to the cities and are quite aware of it. Without knowing who is going to shoot whom, or exactly when or where it is going to happen, the city of Philadelphia is going to incur costs connected with the product, starting with a 911 call, cleaning up blood off the streets, medical costs, which in some cities are borne by the city, all the way to the support of a child who might be orphaned as a result of gun violence.

MM: So, this parallels the state lawsuits charging the tobacco companies cost the states millions in Medicare health care costs.

Kairys: Yes, but they are different. In one way, the tobacco cases are more difficult, because the tobacco companies claimed that their product wasn't even causing the harm. The industry maintained for many years with a straight face that smoking doesn't cause cancer. No one can argue that the gun doesn't cause the damage. In that sense, the gun case is easier.

In some ways though, the case is more difficult. There is no addiction when it comes to handguns.

But there are analogous fraud issues. The main theme of the promotion and advertising by handgun manufacturers is that if you buy their product and either keep it in your home or carry it with you concealed, you will make yourself safer. There is now a consensus in the public health literature refuting this claim. If you bring a gun into your home, it is several times more likely than if you didn't have a handgun in your home that someone will die by a gun. And it is five times more likely you will have a suicide, or ten times more likely you will have a suicide if you have a teenager in your home.

When it comes to problems caused by asbestos, or tobacco, or pharmaceuticals, the public debate includes a serious look at the manufacturer. It's different when it comes to handguns, even though among all those products, the only one designed to kill is the handgun. The only one deeply connected to the problem of crime is handguns.

I started focusing on the handgun connection to crime and its market and promotion, as opposed to the manufacture or design. The manufacturers have had us thinking that criminals wind up with guns because they get stolen, that there isn't a connection in any statistical or real sense between guns and crime. The National Rifle Association's famous slogan is "Guns don't kill people, people kill people."

But it takes an ideological leap or a state of denial to refuse to see that the easy access to handguns leads to more violence, death and injury than there would be otherwise.

To this point, there has been an incredible veil of secrecy around the whole handgun industry. For instance, it is not even known how many of each model gun the manufacturers produce. That is partly because the litigation and discovery have gone nowhere. And both the federal and state legislatures have not been inclined to investigate the gun industry. There are many reasons for that, including the role of guns in the culture, the Second Amendment and a variety of concerns.

We found that the ATF was doing studies. The law enforcement people in our group did some new studies. We looked at over 38,000 handgun purchases -- all of the handgun purchases in Philadelphia and the surrounding counties in 1996 and the beginning of 1997. No data like this has been available anywhere else in the country.

What was startling was that 49 percent of the handguns were purchased by someone who bought at least one other handgun in that time period. The level of multiple purchasing was higher than anyone has imagined. The ATF and Philadelphia police have found that the guns used in crimes they investigate usually are not stolen but were purchased through a "straw" buyer. Someone buys guns and then sells them out of a trunk of a car or just sells them on the street, with or without a license. It is very easy to get a license to be a gun dealer.

We also found that 30 percent of the handguns purchased in the Philadelphia area were purchased by someone who bought three or more in that period and averaged over five. That is over a quarter of the market. What are people doing with three cheap, rapid-firing, quite lethal, small handguns? These are not collectors' items.

MM: The implication is that these are being bought by criminals.

Kairys: Yes. What manufacturer doesn't pay attention to the people who buy over a quarter of their product? The people buying the 30 percent of the handguns amount to only 9 percent of the purchasers.

MM: You are saying that the industry knows it is selling to criminals?

Kairys: Yes. The companies are feeding the criminal element. The companies use our lax laws and our cultural glorification of guns and violence to deflect attention from themselves. They make their product easily available for crime. Then the fear that that generates makes it easier for them to turn around to the rest of us and say -- by the way, you need a handgun to protect yourself from these handguns that get used in crime. The whole market is driven by crime.

One can think of it as an epidemic spread by fear -- and this epidemic is very profitable to the industry. Every time there is a mass murder, or a serial killer, or a crime spree on the local news, that's good for gun sales.

MM: In these 20 or so cases brought against the gun companies, has there been discovery?

Kairys: Very little, because the cases get dismissed early or on summary judgment. The theories aren't like the ones I set out in my article. You can't get discovery of what the entire industry does if you don't make a claim that involves the entire industry.

MM: But you do mention in the article that there was some testimony in a case that is about to go to trial in New York that bolsters your case.

Kairys: Yes. That's the Hamilton case.

The former vice president for marketing and sales for Smith & Wesson, the largest manufacturer of handguns in the world, gave a sworn statement in that case.

He testified as follows: "The company and the industry as a whole are fully aware of the extent of the criminal misuse of firearms. The company and the industry are also aware that the black market in firearms is not simply the result of stolen guns but is due to the seepage of guns into the illicit market from multiple thousands of unsupervised federal firearms licensees. In spite of their knowledge, however, the industry's position has consistently been to take no independent action to insure responsible distribution practices."

MM: There has not been a case brought by a city against the industry?

Kairys: There has not been such a case.

MM: What are the legal theories?

Kairys: First, product liability law doesn't help you in this case. If a product doesn't have a defect, you don't get anywhere under product liability law. Of course, the problem of handguns is that they work too well. Some are defective, and you can go after the manufacturer in those cases under product liability law. But in most cases, the handguns work too well, they are too cheap, they are too accessible.

So I started to branch out. I found that the best theories were the most traditional torts. No law reform was required. Public nuisance and negligence. Those are the theories that would be developed in this litigation.

MM: What was the response to your theory?

Kairys: In early 1997, I presented the idea first to the task force. We all thought that it was a good idea. The task force asked that I write a memo that could be presented to the mayor.

I've known the mayor for a long time, but not personally well. We have mainly been on opposite sides of some issues, but we've also worked together on some issues. The memo reached his desk, and he was immediately excited about it.

In the early spring of 1997, I was hired as counsel for the city to prepare and bring this lawsuit. A corporate law firm -- Ballard, Spahr -- was brought in as we proceeded. The firm is very close to the mayor.

The work on the case spread out. We needed evidence of damages from the various city departments. At that point, many people knew about the lawsuit and it leaked to the press. In late June 1997, one of the local television stations ran a story on it. The leak probably came from the police department. I don't think it was meant to undercut the project. It was more to show that the police were taking positive action.

But the story was out and the same forces that have kept our legislatures from restricting guns kicked into action. The mayor was condemned in the most vehement terms by both Democrats and Republicans. State Senator Vincent Fumo, D-Philadelphia, publicly attacked the mayor.

Please note that there is attorney/client privilege involved here and I am only talking about aspects of this that are out publicly.

To put it mildly, the effort stalled. It became a matter of great political controversy. I then withdrew as counsel in January 1998. To date, the mayor says it is still possible he'll file it. He has been using it to hold over the heads of the manufacturers. And they have begun negotiations.

MM: The theory of the lawsuit is interesting because it separates the urban from the rural. You are not talking about deer hunters.

Kairys: Right. And it is only handguns. Furthermore, part of the beauty of the theory is it doesn't raise a Second Amendment problem. The relief that is requested is just damages. It does not restrict anybody's ability to sell or buy a gun.

MM: But you are hoping to have a deterrent effect.

Kairys: Yes. The deterrent effect would be that they would stop flooding the urban markets.

MM: How would they do that?

Kairys: There are many ways to do that. Drug companies, in addition to what they are required by law to do, set restrictions on sales of products. Right now, gun companies will sell to anyone this product designed to kill.

Under the federal Brady law, there is a slight delay while they check whether you have a record. If you don't, you can buy as many guns as you want.

MM: There is no license required to buy or own a handgun?

Kairys: No, not unless your local law requires it. Furthermore, state Senator Fumo, the architect of our laws here in Pennsylvania, had a law passed that prohibited the local police from even asking an applicant for a permit to carry a concealed gun the reason they want to carry it. Those permits now have to be granted without any particular explanation. If you have no record and you are of age, they have to give you that permit. As a result of the law, the number of carrying permits in Philadelphia has soared.

Also, under Pennsylvania law, once you have the permit to carry a concealed weapon, that satisfies the Brady law. And Pennsylvania authorities are granting 90 percent of the requests now, when they used to grant less than a quarter of them before the Fumo law was passed.

If you have that carry permit, you walk in and on the spot, you can order 25 Lorcin 380s -- a frequent crime gun that costs $100 to $150 each. Or you say I'll take another hundred of these Intratec DC-9s, which are advertised by the manufacturer as "fingerprint resistant." That is a key feature of a product for the home market. You can buy these with a credit card.

What legitimate reason would someone have for 25 of them? And why would we allow it? And if the state law allows them to do it, why aren't we holding the manufacturers responsible?

MM: But you have emphasized that the companies are engaged in lawful activity.

Kairys: Civil liability is most often imposed on people doing things not prohibited by statute that leads to liability. Just because the state has declared free reign, doesn't mean a manufacturer isn't responsible for their actions. The failure to restrict by the state is not a grant of immunity, and courts have not interpreted it as such.

MM: If you are claiming a public nuisance, does there have to be unlawful activity?

Kairys: No. All there has to be is activity that interferes with a recognized public right and high on that list is safety.

MM: You highlight gun company ads in your article, but there was much deeper market penetration of tobacco ads.

Kairys: The theme of most every prime time television show these days is something like -- a well-armed hero will win out.

MM: But that's not the gun industry talking.

Kairys: But people who decide they need the guns then turn to the gun magazines. Go to any Borders and Barnes & Noble and you'll see the gun magazine section, and it is big. Those publications carry ads that guide you to their product in ways that I believe are fraudulent. The ads promise safety without disclosing the public health statistics on this. The companies are telling us that we need more guns to be safe.

MM: It looks as if Philadelphia is not going bring this lawsuit. Have you received any inquiries from other municipalities?

Kairys: Yes. The issue has received some national publicity, and as a result, I've received many calls.

MM: What cities have contacted you?

Kairys: I can't really say. They are potential clients. There were many contacts. Mostly, they are waiting to see what Mayor Rendell is going to do. Until he announces his conclusion, I don't know if anyone is going to move.

There are political concerns to be weighed by any public official who would bring such a lawsuit. I certainly don't begrudge our mayor or any other city official that reality.