November
15, 2002 8:50 a.m. Gunned
Down
The
case for prohibiting abusive lawsuits.
esterday
in West Palm Beach, a jury imposed $1.2 million in damages against Valor
Corporation, a wholesaler which distributes a wide variety of products,
including firearms, to retail stores. While a 2000 Florida law prohibits
abusive lawsuits by local governments, Thursday's case shows the necessity
of stricter laws, at both the state and national levels, modeled after
statutes in states like Colorado, which prohibit all abusive lawsuits.
In
May 2000, Nathanial Brazill stole an unloaded handgun and some ammunition
from a family friend. A few days later, after being ordered to go home
early because of a disciplinary violation on the last day of school, he
announced that he was going to kill a school counselor and that he would
be "all over the news." He went home, retrieved his stolen gun,
and hurried back before school closed, evading security by sneaking in
a back entrance used for deliveries. Inside the school, he met teacher
Barry
Grunow in the hallway. Brazill knew that he was going to fail Grunow's
class. Brazill pointed the gun at Grunow's face, held it there for eleven
seconds, then pulled the trigger and shot Grunow dead. A few days before,
Brazill had showed off his stolen gun to a friend, and demonstrated how
to disengage the safety. (If a gun's safety switch is set to "safe,"
the gun will not fire even if the trigger is pulled.)
Brazill claimed that even though he disengaged the safety and pointed
the loaded gun at Grunow, he did not mean for the gun to go off (even
though the only way for the gun to have discharged is for Brazill to have
pulled the trigger). Brazill, who was 13, was brought to trial as an adult,
and convicted of second-degree murder. The jury rejected the defense lawyer's
claim that the killing was an accident, which would have required the
jury to find Brazill guilty only of manslaughter. He is serving a sentence
of 28 years to life.
Already make plans for his release, from prison, Brazill sent
out a message to a friend, instructing the friend to meet Brazill
at the prison gates and bring him a Tec-9 pistol.
Yesterday's civil jury verdict is the culmination of a lawsuit brought
on behalf of Mr. Grunow's widow by Bob Montgomery, an anti-tobacco trial
lawyer. Montgomery was assisted
by the Brady Center, the mastermind of many dozens of abusive lawsuits
against firearms companies, including the abusive municipal lawsuits.
In apportioning responsibility for Grunow's death, the civil jury found
that Brazill bore absolutely no responsibility, because of the judge's
instructions which prevented them from apportioning liability to Brazill
unless the jury found that Brazill's killing was accidental. Instead,
the jury found that the victim of Brazill's gun theft was 50 percent responsible,
the school board was 45 percent responsible for failing to keep Brazill
off campus, and the firearms wholesaler was 5 percent responsible. (The
firearms manufacturer, Raven, is out of business, because of a fire in
1991.)
The crux of the plaintiff's argument was that the gun was defective because
it did not have a device to prevent thieves like Brazill from using the
gun. Under this theory, almost every firearm ever manufactured is "defective."
As I detail in a Connecticut
Law Review article, such guns don't yet exist. Prototypes have
such severe reliability problems that police are vehemently opposed to
being forced to use such guns. Thus, every proposal to mandate such guns
for ordinary citizens (including a bill that the New Jersey assembly will
vote on next Monday) includes an absolute exception for the police. The
police exemption, however, demonstrates that the prototype guns are not,
and the eventual commercial guns will not be, reliable enough to use for
self-defense. Lower-tech "authorized user" laws — such
as Maryland's law mandating that, starting next year, locks must be integrated
into the gun — likewise have police exemptions, again demonstrating
that such devices interfere with rapid gun use in defense against a criminal
attack. The Florida jury's conclusion that a gun is "defective"
if it is made without attachments that impede with defensive gun use is
implausible.
The tobacco lawyer and the Brady Center also attacked the particular gun,
a Raven Arms .25 pistol, because it was low-priced, selling for about
$75. Supposedly, the gun was unsuitable for sports, collecting, or self-defense,
making it only useful for criminals. These claims too are bogus. Inexpensive
pistols aren't a good choice for hunting or competition target shooting,
but such guns have long been used for informal target shooting, such as
"plinking" at tin cans. The Raven model obviously wasn't a fancy
engraved special edition firearm, but gun collectors collect all types
of guns, and some collectors specialize in small or inexpensive handguns.
More importantly, small, inexpensive guns are useful for self-defense.
They're not as good as many other guns, but for a poor person in a rough
neighborhood, they're much better than being unprotected. The utility
of these guns for legitimate defense is implicitly acknowledged by every
law and every proposed law restricting such guns — since every one
of them exempts the police from the scope of the ban. No one except a
criminal would want to the police to be allowed to carry unsafe and unreliable
firearms that are no good for lawful self-defense. The police exemption
shows
that the objective of those laws is not getting rid of unreliable guns
but rather taking guns away from poor people.
In the Journal of
Criminal Law and Criminology, Markus Funk details
how attempts to ban inexpensive guns (either by law or by lawsuit) are
unjustly discriminatory against the poor.
Because guns like the Raven are owned mainly by poorer people, they are
more vulnerable to theft: Poor people tend to live in neighborhoods with
a relatively high percentage of criminals, and poor people can't afford
sturdy locks on their doors and windows, or rugged gun safes. Thus, stolen
Ravens have often been used by criminals, but this unfortunate reality
does not mean that Raven or its distributors are blameworthy for selling
guns that allow poor people to protect their homes and families.
Barry Grunow's widow Pam Grunow did not, of course, commit any crimes
or torts. She and her children have been horribly victimized by the murder
perpetrated by Nathanial Brazill. Unfortunately, the wicked Brazill has
no money to pay Mrs. Grunow the immense recompense he owes her. Thus,
a jury of six women (three of them teachers) had aided Mrs. Grunow by
taking money from other innocents: the victim of Brazill's theft, a school
board which had instituted unusually rigorous
security measures, and a wholesaler which sold a lawful product intended
to help poor people protect themselves from criminals. If there is to
be a search for people to blame other than the actual criminal, perhaps
the inquiry ought to begin with the murderer's mother and stepfather —
the
subjects
of 25 and 16 police incident reports, respectively, including for domestic
violence.
Florida precedent makes it very unlikely that the Brady Center's victory
yesterday will be upheld on appeal. For example, in Penelas v.
Arms Technology, Inc., the District Court of Appeal affirmed the
trial court's dismissal of Miami's lawsuit against the gun industry. (Feb.
14, 2001). The Florida supreme court refused the request of Miami's mayor
and the Brady Center to review the intermediate appellate court's decision.
Even so, Valor Corporation has been drained of hefty legal fees, and dragged
through the courts and the newspapers as if were a wrongdoer. The firearms
prohibition has the right to lobby for its objectives, but trying to ban
a type of gun by lawsuit — the announced objective of the attorneys
in the West Palm Beach case — is a usurpation of the powers of the
legislature, and an unjust attempt to blame law-abiding people for the
acts of a criminal. In the long run, the effect of yesterday's verdict
may be to help Congress decide to enact legislation banning lawsuits which
are based on the premise that a gun which functions properly is "defective"
because it isn't made according to the specifications of the gun-prohibition
lobby.
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esterday
in West Palm Beach, a jury imposed $1.2 million in damages against 
