<div>"Mass tort litigation against the gun industry, with its practical weaknesses, successes, and goals, provides the framework for this collection of thoughtful essays by leading social scientists, lawyers, and academics. . . . These informed analyses reveal the complexities that make the debate so difficult to resolve. . . . Suing the Gun Industry masterfully reveals the many details contributing to the intractability of the gun debate."<br>-<i>New York Law Journal </i><br><br>"Second Amendment advocate or gun-control fanatic, all Americans who care about freedom need to read <i>Suing the Gun Industry</i>."<br>-Bob Barr, Member of Congress, 1995-2003, and Twenty-First Century Liberties Chair for Freedom and Privacy, American Conservative Union<br><br>"<i>The</i> source for anyone interested in a balanced analysis of the lawsuits against the gun industry."<br>-David Hemenway, Professor of Health Policy & Director, Harvard Injury Control Research Center Harvard School of Public Health Health Policy and Management Department, author of <i>Private Guns, Public Health</i><br><br>"Highly readable, comprehensive, well-balanced. It contains everything you need to know, and on all sides, about the wave of lawsuits against U.S. gun manufacturers."<br>-James B. Jacobs, Warren E. Burger Professor of Law and author of <i>Can Gun Control Work?</i><br><br>"In <i>Suing the Gun Industry</i>, Timothy Lytton has assembled some of the leading scholars and advocates, both pro and con, to analyze this fascinating effort to circumvent the well-known political obstacles to more effective gun control. This fine book offers a briefing on both the substance and the legal process of this wave of lawsuits, together with a better understanding of the future prospects for this type of litigation vis-à-vis other industries."<br>-Philip J. Cook, Duke University<br><br>"An interesting collection, generally representing the center of the gun-control debate, with considerable variation in focus, objectivity, and political realism."<br>-Paul Blackman, retired pro-gun criminologist and advocate<br><br>Gun litigation deserves a closer look amid the lessons learned from decades of legal action against the makers of asbestos, Agent Orange, silicone breast implants, and tobacco products, among others.<br><br><i>Suing the Gun Industry</i> collects the diverse and often conflicting opinions of an outstanding cast of specialists in law, public health, public policy, and criminology and distills them into a complete picture of the intricacies of gun litigation and its repercussions for gun control.<br><br>Using multiple perspectives, <i>Suing the Gun Industry</i> scrutinizes legal action against the gun industry. Such a broad approach highlights the role of this litigation within two larger controversies: one over government efforts to reduce gun violence, and the other over the use of mass torts to regulate unpopular industries. <br><br>Readers will find <i>Suing the Gun Industry</i> a timely and accessible picture of these complex and controversial issues.<br><br><br>Contributors:<br>Tom Baker<br>Donald Braman<br>Brannon P. Denning<br>Tom Diaz<br>Howard M. Erichson<br>Thomas O. Farrish <br>Shannon Frattaroli<br>John Gastil<br>Dan M. Kahan<br>Don B. Kates<br>Timothy D. Lytton<br>Julie Samia Mair<br>Richard A. Nagareda<br>Peter H. Schuck<br>Stephen D. Sugarman<br>Stephen Teret<br>Wendy Wagner<br></div>
Suing the Gun Industry
A Battle at the Crossroads of Gun Control and Mass TortsUniversity of Michigan Press
Copyright © 2005University of Michigan
All right reserved. ISBN: 978-0-472-11510-5Contents
Acknowledgments......................................................................................................................viiIntroduction: An Overview of Lawsuits against the Gun Industry TIMOTHY D. LYTTON....................................................1PART I Perspectives on Gun Violence, Gun Control, & the Gun Industry1. A Public Health Perspective on Gun Violence Prevention JULIE SAMIA MAIR, STEPHEN TERET, & SHANNON FRATTAROLI.....................392. The Limited Importance of Gun Control from a Criminological Perspective DON B. KATES.............................................623. The American Gun Industry: Designing & Marketing Increasingly Lethal Weapons TOM DIAZ............................................844. A Cultural Critique of Gun Litigation DAN M. KAHAN, DONALD BRAMAN, & JOHN GASTIL.................................................105PART II Perspectives on Gun Litigation5. Private Lawyers, Public Lawsuits: Plaintiffs' Attorneys in Municipal Gun Litigation HOWARD M. ERICHSON...........................1296. The NRA, the Brady Campaign, & the Politics of Gun Litigation TIMOTHY D. LYTTON..................................................1527. Gun Litigation in the Mass Tort Context RICHARD A. NAGAREDA......................................................................1768. Comparing Tobacco & Gun Litigation STEPHEN D. SUGARMAN...........................................................................196PART III Gun Litigation as a Regulatory Response to Gun Violence9. Why Regulating Guns through Litigation Won't Work PETER H. SCHUCK................................................................22510. The Complementary Role of Tort Litigation in Regulating the Gun Industry TIMOTHY D. LYTTON......................................25011. Stubborn Information Problems & the Regulatory Benefits of Gun Litigation WENDY WAGNER..........................................27112. Liability Insurance & the Regulation of Firearms TOM BAKER & THOMAS O. FARRISH..................................................29213. Gun Litigation & the Constitution BRANNON P. DENNING............................................................................315Afterword TIMOTHY D. LYTTON.........................................................................................................339Notes................................................................................................................................355Contributors.........................................................................................................................415Table of Cases.......................................................................................................................419Index................................................................................................................................423
Chapter One
A Public Health Perspective on Gun Violence Prevention JULIE SAMIA MAIR, STEPHEN TERET, & SHANNON FRATTAROLI
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Gun violence is a public health problem. Each year in the United States, tens of thousands of people are killed by gunfire and many more are seriously injured with resulting disabilities. Among the victims of gun violence are curious young children who encounter loaded guns and do not understand the damage they can cause; depressed teenagers who commit suicide; victims of domestic abuse; and the casualties of many other violent crimes. For some population groups, death by gunfire is the number one cause of death. It has been estimated that the lifetime medical costs of gun violence that occurred in the single year of 1994 was approximately $2.3 billion, a huge sum of money that could be better spent on solving other societal ills. Whether measured by mortality or morbidity statistics, by cost to society, or by sheer grief and disruption to the population, the toll of gun violence is too high, and it places the public's safety at unacceptable levels of risk. Interventions are needed to address this public health problem.
Although guns and gun violence have long been a part of American life, it is only in the past few decades that guns and gun-related injuries have come to be seen as a public health issue. In the past, gun-related homicides were viewed as a problem to be solved by law enforcement and the criminal justice system. Gun-related suicides were problems belonging to the discipline of mental health. The comparatively small numbers of unintended gun deaths were seen as within the province of hunter safety courses or other educational programs for accident prevention.
With the blossoming of the field of injury prevention within the discipline of public health, a field that only came into general recognition in the 1970s, researchers, practitioners, and advocates began to recognize the toll that guns take on the public's health. Instead of having a fractionated view of gun deaths by separately considering homicides, suicides, and unintended gun deaths, articles began to appear in health journals that aggregated all gun deaths. When gun deaths were combined, based on the reasoning that all of the deaths involve the same vehicle (i.e., a gun), it was realized that guns form the second leading cause of injury death in the United States, surpassed only by motor vehicle-related deaths. As previously noted, for some segments of the population such as young African American males, gun-related deaths are the leading cause of deaths overall.
The aggregation of all gun deaths, simple as that sounds, is an idea that is quintessential to the public health method of thought and therefore an idea that was dormant until those in the field of public health addressed their attention to guns as a health problem. Public health has a tradition of looking beyond the individuals inflicted with injury or disease. The physical and social environments in which human damage occurs, and, importantly, the vehicles or vectors that deliver the agents of injury or disease, are all considered part of the causation of morbidity and mortality and therefore possibly part of the solution to reducing the incidence of morbidity and mortality.
Public health researchers and practitioners recognize that changing the behaviors of people involved in the causation of injury and disease is a potentially effective approach but one that is difficult to achieve. Changing the man-made products that are associated with injury and disease can sometimes be more easily accomplished than changing the behaviors of those who use the products. This has been the case with automobiles. After many years of trying to raise the skills of the driving public, it was realized that cars and highways could be redesigned so that, when the foreseeable crash occurs, the vehicle occupants do not have to suffer fatal injuries. Seatbelts, energy-absorbing steering columns, air bags, and breakaway road signs have all helped to save hundreds of thousands of lives that otherwise would have been lost in crashes.
Similarly, although gun injuries are often the result of troublesome behaviors involving rage, depression, and carelessness, and are compounded by social ills such as poverty and discrimination, there may be interventions available to reduce gun-related deaths that do not focus solely on modifying individuals' behaviors. But most gun policies prior to the past two decades addressed individuals' behaviors, and often those individuals were already in possession of guns, resulting in reactive rather than preventive policy strategies. The initial recognition that guns were involved in a great many deaths in the United States fell short of the formulation of sound prevention policies to address this public health risk.
In 1980, an article was published in the Journal of Public Health Policy that suggested for the first time that gun policy might be more effective if it focused less on the behaviors of shooters and more on the product itself. The article (and other articles following it) postulated setting policy priorities categorized according to a fictional life span of a gun. The suggestion was made that the manufacture of a gun is analogous to its birth and that other milestones in the life span of the gun include its sale, possession, and use. Most policy was directed toward the end of this life span-the use of the gun. The suggestion was made that for policy to be most effective, with effectiveness being defined as producing a reduction in the incidence of gun-related deaths and injuries, the focus of policy should be shifted backward in time along this fictional life span. The most effective policies might be those that regulate the design and marketing of guns.
This public health perspective on gun violence prevention achieved rapid and widespread acceptance within the health and medical communities. Healthy People, the U.S. surgeon general's report on the nation's ten-year health goals to be achieved by 1990, recognized that firearms were claiming tens of thousands of lives each year. In discussing health protection strategies, the report stated: "Measures that could reduce the risk of firearm deaths and injuries range from encouraging safer storage and use to a ban on private ownership. The public health literature on the epidemiology of gun violence and the policies to reduce it blossomed in such leading medical journals as the Journal of the American Medical Association and the New England Journal of Medicine. The descriptive epidemiology of gun violence was fully explored, and some hypothesis-testing research on topics such as the risks of gun ownership was reported. Additionally, the new literature began to include scientific evaluations of policies designed to reduce the incidence of gun violence.
By 1988, James Mercy and Vernon Houk of the federal Centers for Disease Control and Prevention (CDC), in a call for continued scientific investigation of firearms as a public health problem, delineated four steps needed "for further research and the development of effective strategies to prevent firearm injuries." These steps involved the determination of the size, characteristics, and cost of the problem; the determination of the number, type, and distribution of firearms in the United States; the further development of hypothesis-testing epidemiologic research; and the rigorous evaluation of regulations and other interventions that affect the risk of firearm injury. More studies followed these suggestions, and by the early 1990s a body of evidence existed indicating that firearms were a leading public health problem and that policies to address the problem were both needed and feasible.
Around the same time, however, a concerted attack against the public health community's efforts to reduce gun violence was mounted. In a 1995 article by Don Kates and colleagues, published in the Tennessee Law Review, it was suggested that the public health literature on gun violence was created by academics who "prostitute scholarship, systematically inventing, misinterpreting, selecting, or otherwise manipulating data to validate preordained political conclusions." In addition, the National Rifle Association (NRA) was critical of efforts to frame gun violence as a public health issue and led the campaign to end gun violence prevention research funded by the CDC. In 1992, Congress established the National Center for Injury Prevention and Control (NCIPC) in the CDC with the mission to reduce injury-related morbidity and mortality. Unhappy with the findings of firearms-related research funded by the NCIPC, in 1995, when Republicans controlled the House of Representatives, the NRA tried to influence the congressional agenda on funding of the NCIPC. The NRA claimed, among other things, that the NCIPC's injury prevention research was duplicative of that conducted by other federal agencies and driven by political goals. Although the NCIPC survived, in June 1996 the House Appropriations Committee approved an amendment that cut over two million dollars from the NCIPC's budget, the exact amount the CDC spent on gun violence prevention research. The Senate ultimately restored the cut funding, but the funding was earmarked for other injury research. The CDC was also prohibited, and continues to be prohibited, from using federal funds "to advocate or promote gun control." Clearly, the public health approach to gun violence had triggered a powerful, negative response by organizations and individuals traditionally viewed as pro-gun.
The public health perspective we describe in this chapter recognizes gun injury as a significant source of morbidity and mortality and promotes policy interventions aimed at gun design and marketing as the preferred strategy for reducing gun death and injury. In the first section of the chapter, we use federal data to define the scope of gun injury and death in the United States and describe gun death trends over time. A review of analyses that consider the societal cost of gun violence concludes this measurement section. In the second section we then examine several interventions that focus on gun design, sale, and possession and explain the preference for interventions aimed at the design and marketing levels. In the concluding section to this chapter we briefly discuss the public health tools available for realizing the design and marketing interventions previously described.
Measuring the Toll of Gun Injury and Death
Epidemiology of Firearm Death and Injury
The epidemiology of firearm-related morbidity and mortality provides a foundation on which to consider gun violence prevention strategies. Data in this section were obtained from the National Center for Injury Control and Prevention (WISCARS, see note 1). Understanding the nature and extent of a problem is the first step in the public health approach to problem solving. The extent of this understanding is determined by the quality and scope of available data about the issue. Vital statistics records provide information about the number of gun homicides, suicides, and unintentional gun deaths that occur in the United States. The CDC offers online access to these data in aggregate. Basic demographic information about the deceased is available on the CDC's web site. With few exceptions, these demographic data are complete, providing a reliable, basic description of the population killed by gunfire. Vital statistics data provide no useful information about the guns used to kill and do not include information about perpetrators of gun homicides or, when applicable, unintentional gun deaths. National estimates of nonfatal gun injuries are available through the CDC web site beginning with the year 2000. The data are the result of a national injury surveillance system that collects information from a sample of hospital emergency departments. These data are also limited in that they do not include information about the gun.
In an effort to address the shortcomings of existing surveillance efforts, the National Violent Injury Statistics System (NVISS) was developed in 1999. This initiative currently includes a small number of pilot sites, and there are plans to implement the system nationally. Once in place, NVISS will provide detailed information about the weapons used to commit violent injuries and offer researchers and policymakers valuable information for prevention initiatives.
In the following examination of gun-related death and injury we review trend data for a twenty-year period (1981-2000) and highlight information available from the latest government statistics. We frame the trend analysis using the most recent twenty years of available data in part because the beginning of the time period roughly coincides with the history of public health's involvement in this issue.
Between 1981 and 2000, more than 675,000 people were killed by gunfire in the United States. Approximately 83,000 of the people who lost their lives were younger than twenty years old. More than half of the 675,000 gun deaths were suicides, 42 percent were homicides, and 4 percent were unintentionally inflicted. The unacceptable toll of 675,000 deaths exists even though by the year 2000 the gun death rate in this country declined to its lowest point in over twenty years.
People of all ages, races, and both genders are represented in these numbers. However, the burden associated with gun deaths and injuries falls disproportionately on certain subgroups within the population. In 2000, young adults between the ages of twenty and twenty-four were killed by gunfire at a rate of 21 per 100,000-the highest rate among the age groups and more than double the total population rate of 10 per 100,000. Gun death rates among African Americans that year were twice the rate for whites. In 2000, men were six times more likely to die by gunfire than were women.
That African Americans suffer disproportionately high firearm death rates is a well-established and often cited fact of gun-related death and injury in the United States. In 2000, just as in 1981, firearm death rates among African Americans exceeded the rates for all other Americans. Total population data for these two years suggest a difference between the rate of firearm death in 1981 (15 per 100,000) and 2000 (10 per 100,000), but that difference does not reveal changes in certain subpopulation statistics that signal a troubling development in firearm violence and further strengthen the case for public health involvement in prevention efforts.
The most significant changes over the past twenty years have been the sharp increases and subsequent decreases in gun deaths among adolescent and young adult males. Between 1985 and 1993, the rate of gun deaths among fifteen- to nineteen-year-old males more than doubled and the rate among twenty- to twenty-four-year-old males increased from 35 to 59 deaths per 100,000. Most of this change is attributable to rapid increases in gun homicide; however, gun suicide within these age groups also rose. While the upward trend in gun homicide among male youth is evident in each racial category, the numbers are most pronounced among African Americans. Gun homicides increased 250 percent between 1985 and 1993 among fifteen- to nineteen-year-old African American males and 180 percent among those between the ages of twenty and twenty-four. In 1993, African American males between the ages of fifteen and nineteen were being killed by guns at a rate of 131 per 100,000; among white males of the same age the rate was 13.
The high rates of 1993 marked the peak of this gun homicide trend. With these numbers, the realization that guns had become a threat to the lives of our youth began to take root, and the traditional public health commitment to vulnerable populations, such as youth, further strengthened the resolve of many public health professionals to commit resources to reversing this trend. In the years that followed the 1993 peak, gun homicide rates declined. While gun homicides rates remain lower in the current decade relative to the 1990s, 43 percent of all young African American males who died in 2000 were victims of gun homicide. Among young white males, 7 percent of all deaths in 2000 were the result of a firearm homicide.
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