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Washington Examiner
August 11, 2005

Predatory lawsuits target legal businesses

Before recessing for August, the U.S. Senate wisely passed S 397, commonly known as "Protection of Lawful Commerce in Arms Act." The bill codifies an article of common sense that, in these litigious times, has become the target of abusive lawsuits: Companies that lawfully manufacture or sell firearms shouldn't be held liable when someone misuses their products.

To hear some tell it, this is a license to commit mayhem. Ted Kennedy called it "a blatant special-interest bill to protect gun makers and dealers, even if they make firearms recklessly available to criminals and terrorists."

But consider an actual case from Florida. In May 2000, 13-year-old Nathaniel Brazill went to his grandfather's house, rummaged through a bedroom dresser, and stole a Raven .25-caliber handgun. A few days later, Nathaniel was sent home from school for throwing water balloons. He returned to school with the stolen gun, sneaked in through a back door and killed Barry Grunow, a teacher.

Grunow's widow sued Valor Corp., a wholesale distributor of sporting goods that had first sold the handgun. The jury returned a verdict of $24 million in damages, with $1.2 million apportioned to Valor. But the trial judge invalidated the verdict. In June, an appeals court upheld that decision.

To see what was wrong with this lawsuit, consider the history of that particular weapon. Valor legally bought it from the manufacturer (which later went out of business). In 1989, Valor legally sold it to the Hypoluxo Pawn Shop, a federally licensed gun dealer. The shop, in turn, legally sold it to one Herbert Jones. When Mr. Jones died, his widow gave it—legally—to Nathaniel Brazill's grandfather.

So Nathaniel stole the gun 11 years after Valor first sold it. Yet Mrs. Grunow's complaint claimed on statistical grounds that Valor could "reasonably foresee ... that a firearm like the Raven handgun ... would be obtained and used in a shooting by a juvenile or other unauthorized person."

Even if Valor possessed such foresight, there's still a long leap from statistical probability to moral and legal accountability. We can statistically foresee that juveniles and drunks will occasionally drive cars and cause harm. But if that were enough to hold automakers liable, we would all be riding horses.

That is just one of the perversions of legitimate legal theories now in fashion among lawyers who sue gun makers and gun dealers. Others distort the idea of product liability, claiming that guns are dangerously "defective" if manufacturers don't install safety devices such as trigger locks. Another theory characterizes gun manufacturers as a "public nuisance" because some of their products fall into the hands of minors and criminals.

Over the last decade or so, nearly 60 lawsuits have been filed using these fanciful theories. Most have been dismissed, and properly so, but that hasn't stopped the anti-gun zealots, whose aim is to drive gun manufactures out of business.

It isn't a far-fetched goal. Unlike tobacco companies, with annual revenues of $300 billion, gun manufacturers earn about $1.5 billion in yearly sales. According to The Wall Street Journal, they've already spent some $200 million defending against predatory lawsuits.

As important as these economic considerations are, there are more fundamental reasons to stop this abusive litigation. Lawsuits against gun makers and dealers are part of a broad and growing trend of predatory litigation that targets perfectly legal businesses—tobacco, automobiles, aircraft, alcohol, firearms, even fast food. All seek to punish lawful businesses for the negligent or unlawful behavior of others. This isn't being done through the legislative process, but through courts that usurp legislative powers.

Contrary to Sen. Kennedy's tirade, S 397 doesn't excuse gun makers or dealers from liability for their own negligence or lawlessness. What it does do is place responsibility where it belongs: on people who use guns to harm others.

Some opponents gripe that under this bill, "a single industry was singled out to be immune to suit." They seem to forget that the framers of the Constitution singled out that industry's product for special protection in the Bill of Rights. We hope the House codifies that protection by approving its version of S 397.

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