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America's gun war is being fought in our nation's courts

By Dan Herbeck

Wal-Mart last year settled a California lawsuit alleging widespread violations of gun laws for $14.5 million.
The California suit said Wal-Mart stores sold guns to convicted felons and ammunition to minors, and allowed buyers to pick up guns before criminal background checks were complete.

Gun control advocates called the settlement an important victory over one of the nation's major firearms retailers.

But in the ongoing legal war over gun violence and gun control, the Wal-Mart case was one small skirmish.

Large-scale attempts to blame firearms makers for gun violence in American cities have failed. Class-action lawsuits seeking billions of dollars from manufacturers get shot down in courts all over the nation.

Since 1998, at least 33 communities - including New Orleans, Atlanta, Chicago, Detroit, Boston, Philadelphia and Cincinnati - filed suits against gun makers, accusing them of marketing a product that endangers the public.

Most of the suits were dismissed. A handful are pending, including one New York City filed five years ago.

Hi-Point Firearms, near Mansfield, Ohio, the source of many guns illegally brought to Buffalo by James Nigel Bostic, was a defendant in many of the unsuccessful lawsuits. Hi-Point owner Thomas Deeb said it would be unfair to blame gun makers when criminals misuse guns.

The National Rifle Association agrees, calling the lawsuits a reckless attempt by "anti-gun zealots" to put law-abiding companies out of business.

"The lawsuits failed because you can't blame a company for somebody who misuses a product that functions properly," said Joyce L. Malcolm, a history professor and gun rights supporter from Bentley College near Boston. "Blaming the gun industry for the actions of criminals is like blaming a company that makes sleeping pills for someone who commits suicide. It isn't right."

Even New York Attorney General Eliot L. Spitzer got beat five years ago, when he accused gun makers and distributors of doing nothing to prevent unlawful handgun trafficking.

"(Gun makers) know that a significant portion of their guns become crime guns, but turn a blind eye so as to increase their profits, at a cost of many human lives," Spitzer argued. "New York is flooded with a huge volume of illegal guns that are used in violent crime."

In 2003 a state appeals court dismissed the suit. It would be "legally inappropriate, impractical and unrealistic" to require gun makers to stop criminals from obtaining and using handguns.

Most of the lawsuits filed by governments received similar treatment. But at least 10 never had a chance. Some states passed laws insulating the firearms industry from municipal lawsuits.

In Washington, the NRA wants Congress to ban all local governments from filing such lawsuits.

But gun control groups, like the Brady Center to Prevent Gun Violence, insist that governments must retain the right to sue the gun industry.

If a jury ever heard all the evidence on negligent conduct by gun makers and sellers, it would render a monster verdict comparable to some of the billion-dollar verdicts rendered against the tobacco industry, predicted Dennis Henigan, attorney for the Brady Center.

"This battle is not over, not at all," Henigan said.

So far, no community in Western New York has filed such a lawsuit, but Mayor Anthony M. Masiello recently revealed that he had Corporation Counsel Michael B. Risman research the issue several years ago.

"If I saw a window of opportunity, a legal chance of success, I would go for it," Masiello said.

Gun control groups have had some success in helping individual crime victims and their families sue gun makers and distributors.

Henigan said the Wal-Mart settlement was the largest of its kind paid by an American gun retailer. There have been other success stories for those who favor gun control. "Last year, over a period of 90 days, we had three settlements totaling $4.4 million."

One such lawsuit was filed by the families of eight people shot in 2002 in the Washington, D.C., sniper case. Authorities said a Bushmaster assault rifle used in the shootings was one of 238 guns that "disappeared" - with no purchase records - from the Bulls Eye Shooters Supply store in Tacoma, Wash.

Henigan helped file a lawsuit accusing Bulls Eye of grossly negligent sales practices, and Bushmaster of ignoring information that Bulls Eye was irresponsible. The lawsuit was settled for $2.5 million.

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