Who pays cost of gun violence?

Every time a person is shot there is a financial cost, one sometimes borne by society as a whole.

The question is: Who should pay?

Several big cities are suggesting the gun industry should. Borrowing a tactic from the recent tobacco litigation, New Orleans and Chicago have filed lawsuits seeking to recoup millions of dollars spent treating shooting victims.

They will soon be joined by other cities: Both Boston and Philadelphia have announced plans to file lawsuits, and New York Mayor Rudolph Giuliani said last week he'll consider a proposal brought by city councillors. Other jurisdictions mulling over the prospect include Los Angeles and Florida's Dade County.

Whether these suits would help keep guns out of the hands of criminals and children is debatable. But if cities win, one thing is certain: Courts will continue to be used to push the boundary of manufacturer liability.

"It is absolutely part of a larger, growing trend in product-liability law," says Paula Franzese, a law professor at Seton Hall University in South Orange, N.J. She and others see parallels with class-action lawsuits against makers of asbestos, breast implants, cars, and most recently, the tobacco industry.

But some experts say the gun cases go too far by using the courts to set public policy. That power, they say, is rightfully the province of the legislature.

The question to consider is: "Do we want litigation used to promote public morality?" says Jay Spievack, a partner with Kronish, Leib, Wiener, and Hellman who specializes in product liability. But he adds, it's important to remember "we're not talking about products that don't cause harm. It's easy to look at that question in a vacuum."

Chicago has filed a public-nuisance lawsuit seeking $433 million in damages, alleging that gun manufacturers and distributors are circumventing the city's strict gun laws. Barred from selling their merchandise within city limits, they offer their wares in suburban gun shops - knowing they'll end up in the hands of city residents, city officials charge.

New Orleans's product-liability suit alleges that gunmakers have not included enough safety elements on weapons, making guns "unreasonably dangerous."

Issue of responsibility

While cities are using different legal tactics, the disputes boil down to the issue of responsibility. Who is more culpable - the company that manufactures the gun, or the individual who used it to injure or kill?

As far as cities are concerned, "there's enough responsibility to go around," says Peter Welsh, an aide to Boston Mayor Thomas Menino.

Violent crime rates have dropped this decade, but 570 people were killed by guns in Chicago last year, as were about 400 people in Philadelphia.

Calling gun violence an epidemic in Philadelphia, mayoral aide Kevin Seely says the city has tried a number of initiatives over the past two years before turning to the courts. "We'll try any way we can, and work with whomever we can," he says.

"Damages suits are the only way to create strong incentives" for the gun industry to build safer guns and change their marketing and distribution practices, says Dennis Henigan, a lawyer with the Center to Prevent Handgun Violence in Washington, which is serving as co-counsel in the Chicago suit.

For its part, the gun industry characterizes the suits as "legal tyranny," in the words of Richard Feldman of the American Sports Shooting Council, which represents 350 gun manufacturers and is a co-defendant. "This is a threat to the system of government that transcends guns."

But some experts disagree that the cases represent a misuse of the courts. "The fact that a lawsuit has public political implications isn't a reason for it not to be filed," says Locke Bowman of the MacArthur Justice Center at the University of Chicago Law School. "The existence of a lawsuit doesn't prevent legislative activity. [The cases] are not some kind of usurpation of the legislative process in the least."

In the case of Chicago, "the underground market is beneficial to gun manufacturers," says Mr. Bowman, who is involved with several private gun cases. "It's not a surprising application [of the law] to say that, if you're profiting from an injury that is imposing costs, you're going to have to pay for the costs you inflict."

But the gun industry says it cannot be held responsible for the criminal misuse of weapons by individuals.

"Can you tell me what behavior with a firearm we want to proscribe that is not already illegal?" Mr. Feldman asks. He says the problem is that laws already on the books are not being enforced.

"Cities have failed to deal with the problem of violence, and ... rather than handling the problem themselves, they want someone else to pay for it," agrees Jay Brown, a partner with Beirne, Maynard, and Parsons in Houston. He compares the Chicago suit to "suing Budweiser because [liquor] stores are selling alcohol to minors."

Lawsuits brought by individuals have not succeeded. Last week, in what gun-control advocates call the first product-liability case of its kind, an Oakland, Calif., court ruled that Beretta USA Corp. was not responsible for the 1994 accidental shooting death of a teenager. In fact, the gun industry has been found liable in only one instance - and that verdict was negated by Maryland's legislature.

A settlement is unlikely

Unlike the tobacco industry, which opted to settle with states that sued it, the gun battle will be fought out in court, experts say. The gun industry, they say, doesn't have deep enough pockets to settle. "Every gun manufacturer combined wouldn't make a Fortune 500 company," says Dave Kopel, an adjunct professor at New York University Law School.

That, he says, could ultimately mean victory for cities. "[The cities] don't even have to win [in court]," he says. "All they have to do is keep suing... They'll kill [the industry] with the cost of defending all the lawsuits."