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The Rise of Nuisance Theory

A new class of lawsuits is being used to go after gun manufacturers based on the theory that firearms are being deliberately marketed to criminals.

11:01 PM, Jan 13, 2002 • By BETH HENARY
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IT WAS A very Brady New Year for a handful of firearms makers and Chicago gun retailers.

On December 31, 2001, an Illinois appeals court ruled that the families of five Chicago area murder victims may sue the gun manufacturers and dealers for public nuisance. In a 35-page opinion, the court permitted lawsuits against gun dealers and makers whose products were used in the shootings to proceed. An earlier decision by a circuit court allowed the lawsuits to also include manufacturers whose weapons were not associated with the murders.

Bryco Arms, Navegar Inc., Smith & Wesson, Breit and Johnson Sporting Goods, and Chuck's Gun Shop are among the targeted businesses.

Attorneys for the plaintiffs are attempting to establish a chain of direct causality between the businesses and the murders.

"What the court has ruled was that the manufacturers set in motion a chain of events with the foreseeable result being the death of our clients," plaintiff's attorney Jonathan Baum told the Associated Press.

Advocates for public nuisance theory as it relates to gun control claim that distributors and dealers knowingly supply and market guns to criminals, thereby creating a public nuisance.

Others, however, do not see the connection between the businesses and crime.

Illinois State Rifle Association president Richard Pearson believes the suits are just another way to harass gun makers and sellers.

"Eventually," Pearson says, "the suit will be thrown out, although the local courts will rule in favor of it," because they see it as a way to implement gun control. Pearson also believes that the suits are designed to bankrupt gun manufacturers and put stores like Chuck's out of business.

Illinois gun control laws are among the strictest in the nation. Before obtaining a gun, potential buyers must submit to the National Instant Check System and obtain a Firearms Owners Identification Card, for which they must undergo a battery of FBI background checks. They also must wait a minimum of 24 hours. Some states add few or no requirements to the federally mandated instant background check.

Earlier this year the California and New York state supreme courts ruled that gun violence victims could not sue firearms' makers for weapons misuse. Public nuisance suits are pending in both states, although a federal judge in Pennsylvania axed the Philadelphia effort to mount a public nuisance claim against Beretta USA in December 2000.

These public nuisance suits--which are clearly a nuisance for small businesses like Chuck's Gun Shop--come at a time when demand for firearms has risen. From October 2000 to October 2001, background checks for guns rose 22 percent. The gun rush probably consisted of men and women trying to protect their families after the terrorist attacks, but anti-gun forces are attempting to cast the war on terror as a time for confiscation.

On December 19, a group of congressmen including Senate majority leader Tom Daschle and California senator Dianne Feinstein gathered at a pro-gun control press conference to hear a report that called for national registration, a renewed ban on assault weapons, and a firearms rationing program. Part of the report propagated the theory that gun shows and the "terrorists" who sell at them pose a threat to national security.

Beth Henary is an editorial assistant at The Weekly Standard.