Thursday, June 13, 2002

City gun lawsuit can go forward


Even with win, Mayor Luken wonders whether to proceed

By Spencer Hunt, shunt@enquirer.com
Enquirer Columbus Bureau
and Dan Horn, dhorn@enquirer.com
The Cincinnati Enquirer

        COLUMBUS — A Cincinnati lawsuit that alleges gun makers are liable for criminals who use firearms to rob, injure and kill deserves its day in court, a divided Ohio Supreme Court decided Wednesday.

        The 4-3 decision breathes new life into the city's claims that gun manufacturers should shoulder some of the costs when weapons are misused.

        But even as the case heads back to Hamilton County Common Pleas Court, Mayor Charlie Luken said he and City Council members should re-examine their involvement in the case.

        “I think we should hold a hearing and discuss it and see what the experience of other cities is,” Mr. Luken said. “There ought to be a breadth of experience out there that can help us figure out whether this is going to be a productive exercise.”

        Despite the lawsuit's uncertain future, national gun control advocates cheered the ruling, saying it could help similar city-filed lawsuits languishing in other states. Gun makers and their advocates disagreed and argued there is no way a city could win such a suit.

        Justice Francis E. Sweeney, writing for the majority, said the ruling doesn't mean Cincinnati should win. He said the city deserves to at least argue its case, and added it might play an important role in reducing gun violence.

        “Just as the individuals who fire the guns are held accountable for the injuries sustained, (gun makers) can be held liable for creating the alleged nuisance,” Justice Sweeney wrote.

        This is the city's first major victory in a three-year crusade to link the gun-making industry to millions in police and health-care costs attributed to gun violence within city limits. Judge Robert Ruehlman and a state appeals court had tossed out the case.

        City Council members have been divided over the lawsuit since they voted 5-4 to approve it in April 1999. Six new council members have been elected since that first vote.

        Still, it's not clear City Council is prepared to change course on the lawsuit.

        “The last time I counted the votes, there were still at least five people in favor of pursuing it,” said Pat DeWine, the law committee chairman.

        As an opponent of the lawsuit, he counts just two other councilmen firmly in his camp: fellow Republican Chris Monzel and Charterite Jim Tarbell.

        Democrat John Cranley, a key swing vote, said he was undecided. “Generally speaking, I think we have too many guns on the street, and too much violence,” he said. “I'm in favor of more gun control in general, but I haven't had the time to examine whether we ought to pursue this lawsuit or not.”

        The court's decision comes as Cincinnati faces higher rates of violent crime than at any time in the past decade. There have been 33 homicides in the city — most of them gun-related — so far this year, compared to 20 at the same time last year.

        The city's special counsel, Stan Chesley, praised the court's decision, saying it will help the city pursue evidence and testimony that proves gun makers have been negligent.

        He claims gun makers have failed to use technology that would make guns safer, and that they have improperly marketed guns to people who should not have them.

        “I'm a supporter of the Second Amendment,” said Mr. Chesley, referring to the constitutional right to bear arms. “My problem is their marketing of these guns toward people who are unlawful recipients.”

        Cincinnati is one of 34 city and county governments that have filed similar suits against gun makers in recent years. These lawsuits have met with mixed results.

        Of the 34 governments, seven have already lost their cases. Eighteen are scheduled for hearings.

        The Ohio Supreme Court stands out as the first to uphold a city's case on its merits, according to Jonathan Lowy, an attorney for the Washington-based Brady Center to Prevent Gun Violence. The center is co-counsel with Mr. Chesley.

        “They have point by point rejected the arguments of the gun industry,” Mr. Lowy said. “This decision really embraces the heart of these cases.”

        Officials at the National Rifle Association minimized the decision as a “procedural matter.”

        “The whole premise of this lawsuit is to hold a legitimate industry responsible for the criminal actions of an individual,” said Andrew Arulanandam, an NRA spokesman. “That's like suing Ford or Jeep or Land Rover for drunk driving accidents.”

        Lawrence G. Keane, vice president of the National Shooting Sports Foundation, a defendant in the city's lawsuit, said he welcomes a chance to prove his case in court.

        The evidence will prove that the industry is concerned about safety and willing to work with cities and police to reduce crime, Mr. Keane said.

        “We're disappointed to see a very politicized issue being handled this way by what appears to be a very politicized court,” Mr. Keane said.

        The divided ruling is the most recent example of a deep philosophical rift among Ohio Supreme Court justices.

        Justices Alice Robie Resnick, Andrew Douglas and Paul E. Pfeifer joined Justice Sweeney in the majority. The same four justices have twice declared the state's school funding system unconstitutional and also threw out a state law meant to limit the amount of money juries can award in lawsuits.

        Chief Justice Thomas J. Moyer and Justices Deborah L. Cook and Evelyn Lundberg Stratton argued that gun manufacturers cannot control what happens to their products once they are legally purchased by wholesalers and retailers.

        “In many instances the weapon used in a crime is never recovered,” Chief Justice Moyer wrote in a dissenting opinion. “How, under these circumstances, can the city prove that the weapon involved was either illegal or in the hands of an unauthorized user?”

        Justice Cook, nominated by President Bush to the federal appeals court, wrote a separate dissenting opinion.

        “Today's majority appears to extend products liability law to new categories of potential plaintiffs without any reasoned explanation of how that can be so,” she wrote.

       



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